Testimony of

Margo Schlanger,
Professor of Law
and
Director, Civil Rights Litigation Clearinghouse,
Washington University in St. Louis.
Before the National Prison Rape Elimination Commission
New Orleans, December 6, 2007

The Role of Courts and Litigation in Regulating Prison and Jail
Prevention of Sexual Violence and Misconduct

The Role of Courts and Litigation in Regulating Prison and Jail
Prevention of Sexual Violence and Misconduct
Margo Schlanger*
I have been asked to focus my testimony on litigation and how it contributes to oversight
of jails and prisons, in particular to incentivizing appropriate prison and jail supervisory practices
and policies that minimize sexual misconduct and sexual violence behind bars. Litigation is an
accountability mechanism operative in many spheres, of course, but whereas in most other areas
of governmental activity, other such mechanisms have pride of place, we have as a polity largely
failed to implement any other effective regulatory system to govern our burgeoning incarcerative
apparatus. At least in many states prison and jail systems, litigation is one of the only reform or
oversight tools available. It has, over the years, been very beneficial in that role, serving as an
ameliorative force for improvement if not radical reinvention of detention and corrections policy.
Its positive impact has, however, been partially undermined by the Prison Litigation Reform Act,
passed a decade ago.
Generally speaking, civil rights litigation operates along three general regulatory paths:
It promotes institution-specific regulation (court orders); encourages transparency and public
accountability; and deters unconstitutional behavior, or, alternatively put, incentivizes prevention
of unconstitutional misconduct. All three are relevant to litigation’s evaluation in this as in other
areas. Below, I present background on the operation of litigation relating to sexual violence and
misconduct in jails and prisons.
It may be useful to preface my remarks by acknowledging the limits of prisoners’ civil
rights. Jails and prisons are only lightly regulated by the U.S. Constitution. The Eighth
Amendment’s ban on “cruel and unusual punishments” sets a low bar for the areas of prison life
it reaches at all. Medical care, for example, need not be good, or even non-negligent; the
Constitution forbids only care so deficient as to constitute “deliberate indifference” to the health
of those incarcerated in jails and prisons.1 The obligation to protect prisoners from sexual assault
by other prisoners is similarly limited.2
Nonetheless, litigation proceeds. Among its leading topics in federal court are physical
assaults by staff or by other prisoners, including sexual assaults; medical and mental health care;
alleged due process violations relating to disciplinary sanctions; and more general livingconditions claims relating, for example, to nutrition or sanitation. Less frequent but still often
seen are complaints about freedom of speech, free exercise of religion, and access to courts or
mail. All these topics are the subjects of lawsuits of two very different types. A small but very
important docket consists of cases involving larger groups of plaintiffs—all the prisoners in a
*
1
2

Professor of Law and Director, Civil Rights Litigation Clearinghouse, Washington University in St. Louis.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Farmer v. Brennan, 511 U.S. 825 (1994).

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given facility, for example, or even in a given state. Most such group cases seek injunctive
remedies, which obligate a facility or system to undertake various reforms going forward. (This
is not to say that group damages actions are unheard of—most notably in a recent large crop of
jail strip-search cases.) The vastly larger docket consists of suits brought by individuals, usually
seeking damages but sometimes seeking an individualized kind of accommodation or change. A
plaintiff in a jail case might, for example, allege that he was sexually victimized by another
prisoner or a correctional officer, and seek damages for harm suffered or appropriate medical and
mental health care going forward. Nearly all of the many thousands of cases federal and state
prisoners file each year are of this individual type.
I.

Group lawsuits.

Group lawsuits involving jails and prisons are prototypically injunctive lawsuits, seeking
some kind of prospective reform of conditions. They always involve lawyers—often full-time
prisoners’ advocates, other times pro bono or even appointed counsel. They are extremely
expensive to litigate, for both sides, and have grown a great deal more so in recent years. For
example, a large case in California involving the Pelican Bay prison cost plaintiffs’ counsel over
$1 million in actual expenses and took them many thousands of hours of time. The prisoners do
not pay, so it is the plaintiffs’ lawyers who bear that expense, though if they win or settle, their
fees—but not their expenses—are typically paid by the defendants. After plaintiffs won the
Pelican Bay lawsuit, the California Department of Corrections was assessed several million in
fees.3 In total, the jail and prison group litigation docket looks a great deal like other types of
civil rights injunctive practice.
For a large number of prison and jail systems, group litigation has had its effect in the
most direct way possible—by a court order or settlement agreement, reached by litigation or
negotiation and sometimes enforceable by contempt or other judicial action if need be. Such
orders act as institution-specific regulation. At last published count, in 2000 (for prisons) and
1999 (for jails), Bureau of Justice Statistics data show that court orders governed 23% of the
nation’s state prisons, housing 39% of state prisoners, and 13% of the nation’s local jails,
housing 31% of the jail population.4 These orders and agreements have varying profiles. They
can apply to a wing of a facility, to an entire facility,5 to a specified group of facilities or group of
prisoners within a jurisdiction, or to all the jurisdiction’s facilities.6 A single order can govern

3

Amy Stevens, The ‘Pro Bono’ Payoff, S.F. EXAMINER, Dec. 3, 1995, at A-12. The firm told a reporter that it planned to give
$2.4 million to charity and keep the rest for costs. Id.
4

These figures are derived from BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, ICPSR STUDY NO. 4021, CENSUS
OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 2000 (2005); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
ICPSR STUDY NO. 3318, NATIONAL JAIL CENSUS, 1999 (2003). Both are available by study number at http://www.icpsr.umich.
5

See, e.g., Balla v. Board of Corrections, 595 F.Supp. 1558 (D. Id. 1984) (Idaho State Correctional Institution case, still
open, involving, inter alia, crowding, medical care, and physical and sexual assault of prisoners by other prisoners).
6

See, e.g., Lucas v. White, Case No. C 96-02905, Private Settlement Agreement, Feb. 1998 (available as document PC-CA-91, at http://clearinghouse.wustl.edu) (setting out requirements for training and policy at BOP facilities).

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many areas of prison life and policy,7 one very crucial area of prison policy,8 or something more
minor in its importance. Over the years, there have been numerous court order cases seeking to
reduce prisoner-on-prisoner sexual violence, and staff-on-prisoner sexual violence and
misconduct. Many such cases and orders are collected and posted by the Civil Rights Litigation
Clearinghouse.9 I am attaching documents from two such disputes to my testimony: a settlement
agreement in Lucas v. White, under which the federal Bureau of Prisons reformed its policies
relating to sexual abuse of prisoners; and an injunctive order entered in Little v. Shelby County
(in Nashville, Tennessee).10
It is clear that prisoners have gained much from these kinds of orders. For example, a case
study of Guthrie v. Evans,11 the Georgia State Prison case that ended in 1985, summarized its
positive effects:
“The inhuman practices and conditions at [Georgia State Prison] that the special
monitor described in 1979 no longer exist. The reign of terror against inmates has
ended. Today, guards do not routinely beat, mace, and shoot inmates. Inmates and
guards no longer die from a lack of safety and protection. Guards can walk the cells
without having to carry illegal knives and pickax handles to protect themselves. The
medical, mental, nutritional, educational, and recreational needs of inmates are now
provided for. . . . Those changes were the result, in large part if not solely, of the
Guthrie litigation.”12
Prison memoirs and writings confirm the point. For example, a 1979 article by Wilbert
Rideau, then the (prisoner) editor of the Louisiana State Penitentiary’s Angolite, gave credit to
court order litigation for reducing sexual violence:
“While [rapes] used to be a regular feature of life here at the Louisiana State
Penitentiary, they are now a rare occurrence. Homosexuality still thrives, but the
7

See, e.g., Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000) (describing longstanding case and court orders dealing with “(1)
pervasive sexual abuse of female inmates by staff; (2) pervasive sexual harassment of female inmates by staff; (3) an inadequate
classification system; (4) use of excessive force, physical violence, and verbal abuse; (5) the illegal use of stripping and restraints
on mentally ill inmates; (6) violations of basic privacy rights and illegal stripping; (7) enforcement of existing orders; (8)
inadequate staffing; (9) life-threatening structural and physical plant conditions; (10) deliberately indifferent medical, dental, and
mental health care; (11) deficient food and food services; (12) inadequate access to the courts; (13) unlawful visitation, mail, and
telephone practices; (14) inadequate fire safety; (15) inadequate occupational health and safety; (16) insufficient vocational and
educational programs; (17) lack of exercise and recreation, and unjustified idleness; (18) lack of meaningful regulations on
personal property; (19) abusive protective custody procedures; (20) unlawful racial and religious discrimination; (21) inadequate
disciplinary and grievance procedures policies; (22) overcrowding; (23) the adverse psychological effects of detention; and (24)
inadequate mental health therapy and counseling”).
8

See, e.g., Lucas v. White, supra note 6.

9

See Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu; on the “search” page. In the case categories
“prison conditions” and “jail conditions,” issue searches for “sex with staff; sexual harassment by staff” and “sexual abuse by
residents/inmates” are available.
10

These documents are available at http://clearinghouse.wustl.edu. The Lucas agreement is document PC-CA-0009-0001;
the Shelby County document is JC-TN-0004-0003.
11

93 F.R.D. 390 (S.D. Ga. 1981).

12

BRADLEY STEWART CHILTON, PRISONS UNDER THE GAVEL: THE FEDERAL COURT TAKEOVER OF GEORGIA PRISONS 108–09
(1991).

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violence and forced slavery that used to accompany it have been removed. In 1976,
Federal District Court Judge E. Gordon West ordered a massive crackdown on overall
violence at the prison, which paved the way for the allocation of money, manpower,
and sophisticated electronic equipment to do the job. Since then, any kind of violence
at all between inmates elicits swift administrative reprisal and certain prosecution.
This, more than anything else, has made Angola safe for the average youngster
coming into the prison today.”13
And many—though by no means all—other sources concur. A prison official in Kentucky,

describing a major court-order case14 about conditions at the Kentucky State Reformatory,
explained that the consent decree in the case:
“changed the whole system. It made the system unified. We had a cabinetwide
policy and then institution policies clarified those. . . . That’s the guideline by which
you operate and function. . . . We have all this training. The training uses all the
policies and procedures, explains the importance of the policies and procedures.”15
The decrees have professionalized and bureaucratized by the terms they imposed, but also by
their impact on who was interested in becoming or qualified to become an administrator. As a
prisoner involved in the same Kentucky litigation observed:
“But you know what? Guys like those old-time wardens can never be warden at
LaGrange any more. That’s the beautiful thing about that consent decree. It made
that system so damn sophisticated that you just can’t walk out of the head of a holler
in Hazard, out of the logging woods, an’ walk right in and be the warden.”16
Moreover, the effects of court orders and settlement agreements are by no means limited to
the systems in which they are entered. Whether they are litigated or negotiated, orders and
agreements cast a marked general deterrent shadow on systems hoping to avoid them. And their
impact is magnified, as well, when other systems imitate them not out of fear but rather out of a
more positive interest.
In short, court orders have had a major impact on the nation’s jails and prisons, both by the
regulating they have accomplished directly and by their indirect effects. This is true with respect
to sexual violence and misconduct as it is in other areas.

13

Wilbert Rideau, The Sexual Jungle (1979), in WILBERT RIDEAU & RON WIKBERG, LIFE SENTENCES: RAGE AND SURVIVAL
BEHIND BARS 73, 94 (1992). The case mentioned was Williams v. Edwards, No. 71-98 (M.D. La.); the order in question was
affirmed by the Court of Appeals, 547 F.2d 1206, 1213–14 (5th Cir. 1977).
14

Thompson v. Bland, No. Civ. 79-0092 (W.D. Ky.), consolidated with Kendrick v. Bland, No. Civ. 76-0079 (W.D. Ky.). For
the first decree in the case, see Kendrick v. Bland, 586 F. Supp. 1536 (W.D. Ky. 1984). Information about this litigation is
available at the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu; see case PC-KY-0007.
15
16

Lloyd Anderson, Voices from a Southern Prison 202 (2000) (quoting lawyer Barbara Jones).
Id. at 207.

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II.

Individual lawsuits

Individual lawsuits, usually for money damages, are less directly regulatory than court
orders or settlements. But in two different ways, suits for money serve accountability and
regulatory functions. The first way is by promoting transparency and public accountability.
Both under the discovery rules and during trial, lawsuits open a window into the closed world of
jails and prisons, allowing judges and the public to find out what occurs behind the prison
fences; they can bring about sustained publicity, which in turn attracts lawmaker and public
attention. Second, damage actions have a deterrent impact; they give administrators an incentive
to comply with constitutional norms in order to avoid liability. Both methods operate
importantly in the realm of sexual misconduct and violence.
For an example of the first, transparency/accountability, point, consider the trial in
Johnson v. Johnson, a case brought by the ACLU charging Texas authorities with deliberate
indifference to the rape and abuse of plaintiff Roderick Johnson.17 The jury found for the
defendants in the case—but nonetheless it was the subject of dozens of newspaper articles and
brought rare sustained attention to the topic of prison sexual violence. This kind of attention
facilitates and encourages public oversight, and is necessary, if not sufficient, for reform.
The second point, deterrence, is important in this arena as well. For example, some
observers attribute a decline in rape in one prison system to this effect:
“One [reason for the decline] is the willingness of courts to hear inmates’ lawsuits
against states. This trend, which began in the early 1970s, is said to have forced
states to make the protection of vulnerable prisoners a high priority. Protective
custody (PC) is now a big deal. Inmates who ask for protection but fail to get it
can make expensive claims.”18
Clearly, this assessment does not hold true for all prisons. But at least sometimes, the prospect
of damages pushes prison systems towards useful protective regulation.
At the same time, it is important to understand the limits of damage actions. One would
expect prisoner plaintiffs to have extremely low success rates, as they do, given the limited legal
rights those held in jail and prison can enforce and the obstacles to their effective litigation or
settlement of their cases. Particularly important among the obstacles are the unavailability of
counsel—nearly 96% of their federal civil cases, prisoners have no lawyer. The counseled sliver
of the docket is far more successful for its plaintiffs. Among cases terminated in 2000, counseled
cases were three times as likely as pro se cases to have recorded settlements, two-thirds more
likely to go to trial, and two-and-a-half times as likely to end in a plaintiff’s victory at trial. Onequarter of prisoner civil rights settlements and one-third of plaintiffs’ trial victories occurred in
the four percent of cases with counsel.19 The point is that with a lawyer, prisoners cases succeed
at a more ordinary rate, but without a lawyer, it is very difficult for prisoners to either assess or
pursue their cases.
17
18
19

For information, see the Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu, case PC-CA-8.
TED CONOVER, NEWJACK: GUARDING SING SING 263 (2000).
See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1609-1611 (2003).

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Similarly, it makes sense that even those few prisoner plaintiffs who do manage to win
their cases would receive very low damages. After all, the ordinary rules of tort damages limit
compensation. Unlike unincarcerated plaintiffs, injured prisoners who remain behind bars after
the injury have no (or very low) lost wages and no medical expenses. It is a commonplace that
juries tend to give noneconomic damages that are correlated with the economic damages they
find.20 This approach can net most prisoner plaintiffs virtually nothing21 in even extremely
serious cases. In addition, in many cases one would expect juries to lowball prisoners’ nonwage
damages as an expression of disregard for them—even when liability is clear or even egregious.
And the absence of counsel is key, as well. For pro se cases, a prisoner who is together enough
to succeed in persuading a judge or jury on liability faces all the more skepticism about the
magnitude of the harm he experienced. Lawyers who handle these prisoner civil rights cases
report that these obstacles to large recovery are not completely insurmountable. For example, in
cases in which the plaintiffs are the bereaved relatives of dead or comatose prisoners, a big
verdict is possible if the lawyer is able to focus the jury’s attention entirely on the outrageousness
of the alleged misconduct, rather than on the small economic losses. But these kinds of cases are
not typical, and it takes a good deal of expertise to try them in a way that neutralizes the ordinary
reactions of jurors.
In line with these expectations, the vast majority of prisoners’ lawsuits do fail, and even
those that do succeed tend to have very low damages. To use one year’s outcomes as an
example, in 1995, over 80% of prisoners’ civil cases in federal district court were dismissed
rather than settled or tried (the corresponding figure for the non-prisoner federal docket was
32%). The settlement rate was, likewise, extremely low (6% of cases, compared to 37% in other
case types), as was the plaintiffs’ trial victory rate (10% of trials, compared to 45% for other case
types’ plaintiffs).22 And the evidence is that prisoner plaintiffs have been faring even worse in
more recent years, at least in the cases that do not go to trial.23 When prisoners do win or settle
their cases, the damages tend to be very low. In 1993, for example, prisoner plaintiffs won 100
federal trials. The median award among them was only $1,000. One of these actions resulted in
a very large award; $6.5 million. The average among the others was $18,800—obviously much
higher than the median, indicating that most awards were very small, but some few were
substantially higher. And the low level of liability and damages inevitably dampens the deterrent
impact of damage action litigation.
In total, damage actions likely have a limited but important effect encouraging
appropriate protection of prisoners from sexual violence.

20

See Herbert M. Kritzer, Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and
Issues of Control in the Lawyer-Client Relationship, 23 L. & SOC. INQUIRY 795, 817 (1998).
21
One of the few lawyers who actually takes prisoner cases on contingency fee credits the large verdicts lawyers in her firm
have won to their efforts to get juries to step outside traditional damages: “You can’t take a traditional approach to presenting
damages in these cases, because there just aren’t any. The plaintiffs have low if any earnings potential; they weren’t supporting
anyone. So we look instead to show the jury how outrageous the defendants’ conduct was.” Telephone interview of Elizabeth
Koob, plaintiffs’ attorney specializing in prisoner damage actions (May 22, 2002).
22
See Schlanger, Inmate Litigation, supra note 19, at 1598, tbl. II.B.
23
See id. at 1658-1664.

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III.

The Prison Litigation Reform Act

But while both group and individual cases have been and remain useful spurs to prison
and jail reform, the Prison Litigation Reform Act,24 enacted in 1996, has undermined those
effects.
A. The PLRA and Court Orders
First, the PLRA has made it harder for plaintiffs to obtain new injunctive relief. Under
the PLRA not only must consent decrees be narrowly tailored to address the alleged
constitutional violations, but the violation must itself be the subject of a court “finding.”25 Thus
either a trial or some sort of stipulation relating to liability is necessary to settle a jail or prison
case with a court-enforceable decree. Unsurprisingly, defendant prison officials are not happy to
agree to such stipulations, which may even subject them to damages in suits by other claimants.
There are two possible results, both problematic. The first is wasteful litigation when a
settlement would otherwise be readily at hand; the second is settlements that are unenforceable
and therefore less effective.
Simultaneously, the PLRA has made it easier for defendants to end old decrees, even
when they have not complied with them. Before the PLRA’s enactment, the law on prospective
relief in civil rights cases left such relief in effect until defendants fully complied with the
judgment and satisfied the court (or the plaintiffs, who could choose not to oppose the relevant
motion) that they were unlikely to relapse, even if oversight ceased.26 The PLRA opened prison
and jail orders to far more ready challenge. The statute entitles defendants to “immediate
termination” of any prospective relief two years after that relief is granted, unless the court finds
“current and ongoing violation” of federal rights. And defendants can renew their request for
termination yearly.27 Because nearly all correctional court orders are more than two years old,
the PLRA allows most counties, cities, or states unhappy with an order to simply move to
terminate it. Sure enough, between 1996 and 2000, a large number of jurisdictions filed
termination motions. Plaintiffs’ counsel were successful in defending some of the old orders,
for a time by attacking the PLRA’s constitutionality (until the Supreme Court effectively decided
the issue28), and also by litigating the ongoing need for conditions remedies. Inevitably,
however, plaintiffs lost some of those contests, and the victories they achieved came at the cost
of new projects. Thus, by forcing inmates’ advocates into rear-guard actions that were only
partly successful and that took the place of assaults on additional targets, the PLRA’s immediate
termination provision both shrank the stock of old orders and slowed the flow of new ones.

24

Pub. L. No. 104-134, §§ 801–10, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified at 11 U.S.C. § 523 (2000); 18
U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2000); 42 U.S.C. §§ 1997a–1997h (2000)). The PLRA
was part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321.
25

18 U.S.C. §§ 3626(a)(1)(A); (c)(1).

26

See Louisiana v. United States, 380 U.S. 145, 154 (1965) (remarking that courts have “not merely the power but the duty
to render a decree which will so far as possible eliminate the [unlawful] effects of the past as well as bar like [illegality] in the
future”).
27
28

18 U.S.C. § 3626(b)(1) (2000).
Miller v. French, 530 U.S. 327 (2000).

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To be sure, notwithstanding the PLRA, the threat of litigated intervention remains very
salient, because important and highly public new orders continue to be entered. In California’s
prison system, for example, the entire medical care operation came under receivership in
200529—the most intrusive court order regulation possible, in which the state’s authority has
been given to a private party appointed by the court. Nonetheless, there is currently substantially
less court-order regulation than prior to the PLRA. In 1995, only in about a fifth of states did
correctional authorities report that between 0 and 10% of state prison population was housed in
entities subject to court-order regulation. By 2000, a majority of state prison systems indicated
this light degree of coverage.30
B. The PLRA and Damage Actions
In an even sharper way, the PLRA has further limited the already circumscribed ability of
prison and jail damage actions to improve conditions of confinement. The key components of
the statute in this respect are its administrative exhaustion provision and its physical injury
provision.
Administrative Exhaustion.
Prior to the PLRA, inmates seeking to file civil rights lawsuits (like other civil rights
plaintiffs) generally were not required to first run their complaints through whatever grievance
system their incarcerating authority had implemented.31 The PLRA changed that rule. The
PLRA’s exhaustion provision states: “no action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.”32 The provision appears harmless enough. Who could object, after all, to a
regime in which corrections officials are given the first opportunity to respond to and perhaps
resolve prisoners’ claims?

29

See Plata v. Schwarzenegger, No. C-01-1351 (N.D. Cal. Oct. 3, 2005) (findings of fact and conclusions of law re
appointment of receiver) (available as document PC-CA-0018-007 at http://clearinghouse.wustl.edu). Other information about
and filings from this case are available at http://clearinghouse.wustl.edu, under case no. PC-CA-0018.
30

See Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y. U. L.
REV. 550, 581-582 (2006).
31

See McCarthy v. Madigan, 503 U.S. 140, 149–50 (1992) (exhaustion of federal Bureau of Prisons grievance processes not
required for filing civil rights action); Patsy v. Bd. of Regents, 457 U.S. 496, 502 (1982) (exhaustion of state administrative
processes not required prior to initiation of action under section 1983). Under the Civil Rights of Institutionalized Persons Act
(CRIPA), if district courts deemed exhaustion “appropriate and in the interests of justice,” incarcerating authorities who had
obtained federal certification of their grievance system as “plain, speedy, and effective” could insist that civil rights actions
brought by inmates be stayed pending exhaustion. 42 U.S.C. § 1997e(a)(1) (1988) (superseded by PLRA, Pub. L. No. 104-134, §
803(d), 110 Stat. 1321, 1321–71); see also Donald P. Lay, Exhaustion of Grievance Procedures for State Prisoners Under §
1997e of the Civil Rights Act, 71 IOWA L. REV. 935, 937–42 (1986) (discussing CRIPA exhaustion rules). With so small a prize
(and because they objected to the statutory certification requirements), few correctional jurisdictions bothered to seek
certification. See JUDICIAL CONFERENCE OF THE U. S., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 49 (1990) (explaining
that “few states have sought and obtained certification under this statute”); Note, Resolving Prisoners’ Grievances Out of Court:
42 U.S.C. § 1997e, 104 HARV. L. REV. 1309, 1310–11 (1991) (discussing certification procedure and Federal Courts Study
Committee’s recommendations for revision).
32

42 U.S.C. § 1997e(a).

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The problem is that in many jails and prisons, administrative remedies are, unfortunately,
very difficult to access. Deadlines may be very short, for example, or the number of
administrative appeals required very large.33 The requisite form may be repeatedly unavailable,34
or the prisoner may fear retaliation for use of the grievance system (which often require that
prisoners get grievance forms from, or hand them to the very officer whose conduct is the subject
of their complaint).35 Sometimes, the grievance system seems not to cover the complaint the
prisoner seeks to make.36 Or a prisoner may be unable to fill out a grievance because he is in the
hospital.37
Nonetheless, beginning six years after the PLRA’s enactment, first some of the Courts of
Appeals,38 and finally the Supreme Court,39 held that the PLRA forever bars even meritorious
claims from court if an inmate has failed to comply with all of the many technical requirements
of the prison or jail grievance system. This means that if prisoners miss deadlines that are often
less than fifteen days and in some jurisdictions as short as two to five days,40 a judge cannot
consider valid claims of sexual assault. Moreover, the PLRA’s exhaustion requirement has been
held to grant constitutional immunity to prison officials based on understandable mistakes by lay
people operating under rules that are often far from clear. Wardens and sheriffs routinely refuse
to engage prisoners’ grievances because those prisoners commit minor technical errors, such as
using the incorrect form,41 sending the right documentation to the wrong official,42 failing to
name a relevant official in the complaint (even if prison administrators have actual knowledge
of that official’s role in the incident),43 or failing to file separate forms for each issue, even if the
33

See Brief for Jerome N. Frank Legal Services Organization of the Yale Law School as Amicus Curiae Supporting
Respondent, Woodford v. Ngo, 126 S. Ct. 2378 (2006) (No. 05-416) at 6-13, 2006 WL 304573 at *6-*13 and A1-A7 for a survey
of prison and jail grievance policy deadlines.
34

See, e.g., Latham v. Pate, 2007 WL 171792 (W.D. Mich. 2007) (dismissing suit due to tardy exhaustion in case in which
inmate alleged beating; inmate maintained that he had been placed in segregation and administrative segregation immediately
following assault and that “officers did not provide him with the grievance forms”).
35

See, e.g., Umstead v. McKee, 2005 WL 1189605 (W.D. Mich. 2005) (“it is highly questionable whether threats of
retaliation could in any circumstances excuse the failure to exhaust administrative remedies”); Garcia v. Glover, 197 Fed. Appx.
866, 867 (11th Cir. 2006) (refusing to excuse non-exhaustion in case in which inmate alleged that he had been beaten by five
guards, despite the fact that prisoner alleged that he feared he would be “killed or shipped out” if he filed an administrative
grievance).
36

See, e.g., Marshall v. Knight, 2006 WL 3714713 (N.D. Ind. 2006) (dismissing, for failure to exhaust, plaintiff’s claim that
prison officials retaliated against him in classification and disciplinary decisions, even though prison policy dictated that no
grievance would be allowed to challenge classification and disciplinary decisions); Benfield v. Rushton, 2007 WL 30287 (D.S.C.
2007) (dismissing suit by prisoner who alleged that he was repeatedly raped by other inmates, due to untimely filing of
grievance; prisoner had explained that he “didn’t think rape was a grievable issue”).
37

See, e.g., Washington v. Texas Department of Criminal Justice, 2006 WL 3245741 (S.D. Tex. 2006) (dismissing plaintiff’s
claim for failure to file a grievance even though he was hospitalized and medically unable to file during the time allowed by state
policy).
38
39
40
41
42
43

See Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002).
Woodford v. Ngo, 126 S. Ct. 2378 (2006).
Woodford, 126 S. Ct. at 2402 (Stevens, J., dissenting).
See, e.g., Richardson v. Spurlock, 260 F.3d 495, 499 (5th Cir. 2001).
See, e.g., Keys v. Craig, 160 Fed.Appx. 125 (3d Cir. 2005).
See, e.g., Williams v. Hollibaugh, 2006 WL 59334, at *5-*6 (M.D. Pa. 2006).

-9-

interpretation of a single complaint as raising two separate issues is the prison administration’s.44
Each such misstep by a prisoner bars consideration of even an otherwise meritorious civil rights
action.45
Far from encouraging correctional officials to handle the sometimes frivolous but
sometimes extremely serious complaints of inmates, the PLRA’s exhaustion rule actually
provides an incentive to administrators in the state and federal prison systems and the over 3000
county and city jail systems to fashion ever higher procedural hurdles in their grievance
processes. After all, the more onerous the grievance rules, the less likely a prison or jail, or staff
members, will have to pay damages or be subjected to an injunction in a subsequent lawsuit.46
Can anyone reasonably expect a governmental agency to resist this kind of incentive to avoid
merits consideration of grievances? The officials in question are a varied group—elected jailers
and sheriffs, appointed jail superintendents, professional wardens, politically appointed
commissioners. What they all have in common is an understandable interest in avoiding adverse
judgments against themselves or their colleagues. Because even when prison and jail
administrators want to resolve a complaint on its merits, the PLRA discourages them from doing
so, it actually undermines the very interest in self-governance Congress intended to serve.47
Moreover, courts have been extremely rigorous in their application of the exhaustion
requirement, refusing the kinds of exceptions that are typically available under the exhaustion
doctrine in administrative law. For example, one court recently held that “The PLRA does not
excuse exhaustion for prisoners who are under imminent danger of serious physical injury, much
less for those who are afraid to confront their oppressors.”48 A rule requiring administrative
exhaustion, and punishing failure to cross every t and dot every i by conferring constitutional
immunity for civil rights violations, is simply unsuited for the circumstances of prisons and jails,
where physical harm looms so large and prisoners are so ill equipped to comply with legalistic
rules.

44

Harper v. Laufenberg, 2005 WL 79009, at *3 (W.D. Wis. 2005).

45

See Giovanna E. Shay & Johanna Kalb, More Stories of Jurisdiction-Stripping and Executive Power: The Supreme Court’s
Recent Prison Litigation Reform Act (PLRA) Cases, 29 CARDOZO L. REV. 291 (2007), available at
www.cardozolawreview.com/PastIssues/29.1_shay_kalb.pdf (reporting data on how many cases have been dismissed on
exhaustion grounds post-Woodford: “In a survey of reported cases citing Woodford, in the cases in which the exhaustion issue was
decided, the majority were dismissed entirely for failure to exhaust. All claims raised in the complaint survived the exhaustion
analysis in fewer than 15% of reported cases.”).
46

There is evidence that prisons and jails have headed in this direction. For example, in July 2002, in Strong v. David, 297
F.3d 646 (7th Cir. 2002), the Seventh Circuit reversed the district court’s dismissal of a case for failure to exhaust; in rejecting the
defendants’ argument that the plaintiff’s grievances were insufficiently specific, the court noted that the Illinois prison grievance
rules were silent as to the requisite level of specificity. Less than six months later, the Illinois Department of Corrections
proposed new regulations that provided:
The grievance shall contain factual details regarding each aspect of the offender’s complaint including what
happened, when, where, and the name of each person who is the subject of or who is otherwise involved in the
complaint.
ILL. ADMIN. CODE tit. 20, § 504.810(b); see 26 Ill. Reg. 18065, at § 504.810(b) (Dec. 27, 2002) (proposing amendment).
47

In fact, if an agency chooses to entertain an untimely grievance that merits examination, the agency is barred from
asserting a failure-to-exhaust defense at later time. Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004), cert. denied, 125 S. Ct.
1589 (2005).
48

Broom v. Rubitschun, 2006 WL 3344997 (W.D. Mich. 2006).

- 10 -

In short, by cutting off judicial review based on an inmate’s failure to comply with his
prison’s own internal, administrative rules—regardless of the merits of the claim—the PLRA
exhaustion requirement undermines external accountability. Still more perversely, it actually
undermines internal accountability, as well, by encouraging prisons to come up with high
procedural hurdles, and to refuse to consider the merits of serious grievances, in order to best
preserve a defense of non-exhaustion. Ideally, grievance systems actually improve agency
responsiveness and performance, by helping corrections officials to identify and track complaints
and to resolve problems.49 But the PLRA’s grievance provision instead encourages prison and
jail officials to use their grievance systems in another way—not to solve problems, but to
immunize themselves from future liability. Judicial oversight of prisoners’ civil rights is
essential to minimize violations of those rights, but the PLRA’s exhaustion provision arbitrarily
places constitutional violations beyond the purview of the courts.
It would be relatively simple to achieve the legitimate goal of allowing prison and jail
authorities the first chance to solve their own problems, without creating the kinds of problems
the PLRA has introduced. The exhaustion provision should not be eliminated, but rather
amended to require that prisoners’ claims be presented in some reasonable form to corrections
officials prior to adjudication, even if that presentment occurs after the prisons’ grievance
deadline. Filed cases could be stayed for a limited period of time to allow for administrative
resolution.
Physical injury.
The PLRA provides that inmate plaintiffs may not recover damages for “mental or
emotional injury suffered while in custody without a prior showing of physical injury.”50 Many
courts have held that the provision covers all personal injury, including violations of nonphysical constitutional rights.51 Moreover, although the case law is far from uniform, some
courts have deemed sexual assault not to constitute a “physical injury” within the meaning of the
PLRA. In Hancock v. Payne,52 a number of male prisoners alleged that over several hours, a
corrections officer sexually assaulted them. “Plaintiffs claim that they shared contraband with
[the officer] and that he made sexual suggestions; fondled their genitalia; sexually battered them
by sodomy, and committed other related assaults.” The plaintiffs further complained that the
officer “threatened Plaintiffs with lockdown or physical harm should the incident be reported.”
The district court granted summary judgment in part to the defendants. One of the grounds for
this defense victory was the physical injury requirement. The federal district court said, “the
49

See LYNN S. BRANHAM, ET AL., LIMITING THE BURDENS OF PRO SE INMATE LITIGATION: A TECHNICAL-ASSISTANCE MANUAL
(American Bar Association Criminal Justice Section 1997).

FOR COURTS, CORRECTIONAL OFFICIALS, AND ATTORNEYS GENERAL

50

42 U.S.C. § 1997e(e).

51

See, e.g., Thompson v. Carter, 284 F.3d 411, 416-17 (2d Cir. 2002) (no compensation available for violation of due process
rights); Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (no compensation available for violation of religious rights); Royal v.
Kautzky, 375 F.3d 720, 722-23 (8th Cir. 2004) (no compensation available for retaliation for exercise of free speech rights);
Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (no compensation available for violation of religious rights); Davis v.
District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998) (no compensation available for violation of constitutional privacy
rights). But see Cannell v. Lightner, 143 F.3d 1210, 1214-15 (9th Cir. 1997) (stating that PLRA “does not preclude actions for
violations of First Amendment rights.”).
52

2006 WL 21751 (S.D. Miss.).

- 11 -

plaintiffs do not make any claim of physical injury beyond the bare allegation of sexual assault.”
In other words, in the view of this district court, not even coerced sodomy (which was alleged)
constituted physical injury. Though some other courts have decided the question differently, the
Hancock court is not alone in reaching this conclusion.53 This outcome exists in sharp tension
with Congress’s recent efforts to eliminate sexual violence and coercion behind bars by passing
the Prison Rape Elimination Act.54
The point is that the PLRA’s ban on awards of compensatory damages for “mental or
emotional injury suffered while in custody without a prior showing of physical injury” has made
it far more difficult for prisoners to enforce any non-physical rights and to seek compensation for
any mental rather than physical harm, no matter how intentionally, even torturously, inflicted.
The PLRA has left the availability of compensatory damages for the constitutional violation of
coerced sex an open question. It has thereby undermined the important norm that such
infringements of prisoners’ rights are unacceptable.
IV.

Conclusion.

Lawsuits brought by individual prisoners and by groups of prisoners have been an
important, if limited, source of accountability, oversight, and regulation relating to sexual
violence and misconduct in prisons and jails. They continue to be important, though their
effectiveness has been undermined in recent years by the Prison Litigation Reform Act.

I hereby declare under penalty of perjury that the foregoing is true and correct.
EXECUTED THIS 6th DAY OF DECEMBER, 2007.

53

See Smith v. Shady, 2006 WL 314514 at *2 (M.D. Pa. 2006) (“Plaintiff’s allegations in the complaint concerning
Officer Shady grabbing his penis and holding it in her hand do not constitute a physical injury or mental symptoms.”). See
generally DEBORAH M. GOLDEN, THE PRISON LITIGATION REFORM ACT – A PROPOSAL FOR CLOSING THE LOOPHOLE FOR RAPISTS
(June 2006) available at www.acslaw.org/files/Golden%20-%20Rape%20and%20PLRA%20white%20paper.pdf. But see Liner
v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) (sexual assault constitutes physical injury within the meaning of the PLRA).
54

42 U.S.C. §§ 15602 et seq.

- 12 -

""II "" Illnrnnfll I I III
PC-CA-009-001

1

2
3
4

IN THE UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CAIJIFORNIA

6

7

ROBIN LUCAS, ET AL.,

)

Case No. C 96-02905 THE

)

Plaintiffs,

8

9

)

vs.

)
)

O. IVAN WHITE', ET AL.,

)

)

10

)

11

12
13
14

15
16
17

18
19

20
21

22
23
24

25
26
27

28

Defendants.

)

---------------)

PRIVATE' SETTLEMENT AGREEMENT

1

INTRODUCTION

2

Former and current Bureau of Prisons inmates Robin Lucas,

3

Register Number 87132-011, Valerie Mercadel, Register Number

4

08463-085, and Raquel Douthit, Register Number 15004-057, filed

5

thi8 action on August 13, 1995 seeking damages and injunctive

6

relief from present and former Bureau of Prisons officials.

7

or about August 13, 1996, each plaintiff also filed an

8

administrative claim

9

the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b) and 2671

~or

On

damages against the United States under
~

10

~.,

11

plaintiffs amended their complaint to add a claim for damages

12

against the United States under the Federal Tort Claims Act and

13

to add the following defendants in their official capacities

14

only: Kathleen M. Hawk, Director, BOP; Constance Reese, Warden,

15

FCI Dublin, substituting for Warden Hayes in his official

16

capacity, only; Margaret Harding, Warden,

17

Greer, Warden, FCI Tallahassee; and Dr. Peter M. Carlson,

18

Director, Western Region, substituting for

19

official capacity.

20

which was denied on July 25, 1997.

On October 1, 1997,

FCI~Danbury;

o.

L.R.

Ivan White in his

Plaintiffs allege, inter alia, that while they were in the

21

custody of the Bureau of Prisons and incarcerated at the Federal

22

Detention Center, Dublin, California and Federal Correctional

23

Institution, Dublin, California, they were subjected to a

24

"pattern and practice of sexual assaults, intimidation, physical,

25

sexual, and verbal abuse, threats of violence, sexual harassment,

26

invasions of privacy, and other violations of law," including

27

retaliation for their complaints of unlawful conduct.

28

parties have participated in

~ediation

The

since December 16, 1996;
2

_ _ _..... _ _ •._ _- - ! l . - -

_

. i

1

it is pursuant to that process that this agreement arises.

2

stipulation of the parties and order of the Court, defendants

3

have not answered the Complaint or the Amended Complaint pending

4

the final outcome of the mediation process.

5

I.

CONDITIONS

6

A.

The parties recognize that 18 U.S.C.

§

By

3626 limits

7

prospective relief via consent decree to that necessary to

8

redress particular inmates' rights.

9

settlement agreement is not a consent decree qualifying under the

10
11

The parties agree that this

Prison Litigation Reform Act of 1995 for judicial enforcement.
B.

The parties agree that this settlement does not

12

constitute an admission by either the United States or the

13

individual defendants of the truth of the allegations contained

14

in the complaint.

15

C.

The Bureau of Prisons' agreement to the terms in this

16

settlement is undertaken in good faith to redress plaintiffs'

17

concerns arising from certain actions alleged to have occurred at

18

FCI Dublin. This document embodies the following agreement:

19

Bureau of Prisons promises to adopt and implement certain

20

policies and procedures designed to reduce the risk to female

21

prisoners of sexual assaults and harassment by correctional staff

22

and male prisoners and to provide appropriate programming,

23

counseling and services to female prisoners who are victims of

24

sexual assault. The United States agrees to pay damages to

25

Plaintiffs in settlement of each of their FTCA claims, as

26

described in Section IV of this agreement. In return, Plaintiffs

27

agree to dismiss the FTCA claims with prejudice, to release all

28

claims against the individual capacity defendants for damages

The

3

1

alleged to arise out of the incidents described in the complaint,

2

and to dismiss their injunctive relief claims subject to 18

3

U.S.C.

4

obligations in this Agreement which are to be completed by or

5

before June 30, 1999, at which time the injunctive claims shall

6

be dismissed with prejudice.

7

§

D.

3626(c) (2) (a), pending BOP's performance of its

The parties understand and agree that to the extent that
requir~s

8

this Agreement

changes in BOP policy affecting

9

bargaining unit employees, such changes are subject to

10

negotiation with the labor union representing the affected

11

employees.
IN BOP POLICIES AND PROCEDURES

12

II.

C~GES

13

A.

Introduction And Procedures

14
'15

1.

This agreement is not a consent decree qualifying

under the Prison Litigation Reform Act of 1995 for judicial
-

-

16

enforcement but is instead a private settlement agreement, as

17

described in 18 U.S.C.

18

3626(g) (6).

19

agreement are not subject to court enforcement other than the

20

reinstatement of the civil proceeding that [this] agreement

21

settled." 18 U.S.C.

22

PLRA, the parties agree jointly to inform the Court that they

23

have entered into a "PLRA private settlement agreement" and to

24

request that the Court issue an order dismissing this action.

25

2.

§

3626(c), and defined in 18 U.S.C.

§

As such, the parties agree that the "terms of [the]

§

3626 (c) (2)

(A).

In conformance 'with the

This agreement is undertaken in good faith to

26

resolve the concerns of Plaintiffs in respect of the effects that

27

operations at FCI Dublin will have upon other inmates at that

28

facility, and the BOP Official Capacity Defendants (hereinafter
4

1

"BOP") undertake in good faith to ameliorate those concerns.

2

This agreement also seeks to address the concerns of the two

3

Plaintiffs who remain in the custody of the Bureau of Prisons in

4

respect of their requests for injunctive relief.

5

E.

6

The J-2 Special Housing Unit At FCI Dublin
1.

Female inmates will not be housed in the J-2

7

Special Housing Unit of the Federal Detention Center in Dublin

8

absent circumstances which would require the Warden temporarily

9

to make such housing assignments during a correctional or law

10

enforcement emergency, natural disaster, or any other emergency

11

situation in which such assignments are approved by the Regional

12

Director.

13

2.

In each report provided pursuant to paragraph IX

14

of this Agreement, BOP will indicate whether or not female

15

inmates were housed in the J-2 Special Housing Unit at FCI Dublin

16

during the period since the previous report and will indicate

17

whether male inmates were simultaneously housed in the J-2 SHU at

18

the time.

19

C.

20

Confidential

Mechanism to Report Sexual Assaults

FCI Dublin inmates, and plaintiffs Mercadel and

21

Douthit, will have the telephone number of the Office of

22

Inspector General of the Department of Justice added ·to their

23

Inmate- Telephone monitored calling lists, without affecting their

24

currently approved lists.

25
26

D.

Independent Consultant for Training Purposee
1.

In order to assist with the review and development

27

of training programs, the BOP may consult with Andie Moss,

28

Correctional Programs Specialist, National Institute of
5

1

Corrections.

2

BOP will retain an independent consultant with substantial

3

expertise regarding:

4

female inmates; and (2) privacy concerns of female inmates.

5

BOP will consult with plaintiffs' Counsel with regard to the

6

selection of that consultant.

7

E.

If the BOP elects not to consult with Ms. Moss, the

(1) sexual assault and harassment against
The

Training Programs
Nationa~

8

1.

Training

9

A Bureau Training Program will be developed for annual

10

Refresher Training for 1998, which will address Bureau policies

11

and procedures concerning sexual assaults, sexual contacts,

12

sexual misconduct, confidential reporting, sexual harassment and

13

other issues arising out of the special needs of female

14

prisoners.

15

including a review of Bureau policy, to new employees as part of

16

the Introduction to Correctional Techniques training at the

17

Federal Law Enforcement Training Center at Glynco, Georgia.

18

Specialized training will also be available for staff most likely

19

to be involved in treatment or management of sexually assaulted

20

inmates.

21

BOP agrees to provide such training and information,

With the assistance of the Consultant, BOP shall review

22

and revise its training program to assure that appropriate

23

training and information is provided to all employees who work

24

with female prisoners concerning the following topics:

25

a.

BOP policies and procedures concerning sexual

26

assaults of prisoners by prisoners. or BOP staff, sexual

27

contact between prisoners, sexual contact between prisoners

28

and BOP staff, sexual misconduct, confidential reporting and
6

·

,

1

investigation of allegations of sexual misconduct and

2

protection of inmate complainants, duty of staff to report

3

and testify concerning sexual misconduct;

4

b.

Program Statement 5324.02 (and any successor

5

statements), including, but not limited to, the Staff

6

Training in Part 7.b, staff sensitivity training in Part 8,

7

and successor training provisions;

8
9
10

c.

S~xual

harassment, including inappropriate

speech, hostile environment, and verbal or non-verbal
propositions;

11

d.

Privacy rights of female prisoners,

12

including, but not limited to, cross-gender supervision,

13

cross-gender searches, prurient viewing of females changing

14

clothes or using showers and toilet facilities; and

15

e.

Special needs of female prisoners, including,

16

but not limited to, sexual and spousal abuse, menstruation,

17

pregnancy, child-rearing, medical and psychological needs.

18

2.

FeI Dublin Training

19

FCI Dublin shall be responsible for devising and

20

providing specialized training to assure that all staff receive

21

training in local procedures and implementation of national BOP

22

policy on the local level.

23

in the local Institution Supplement to Program Statement 5324.02,

24

including the identity of the Sexual Assault Coordinator and

25

local procedures.

26
27
28

3.

For example, staff should be trained

Specialized Training

The BOP shall develop specialized training programs for
employees with particular responsibilities under Program
7

. - r - - - - -..--- ._.

1

Statement 5324.02, or successor provisions of BOP policy,

2

including, but not limited to, the Sexual Assault Coordinator,

3

Medical and Psychological staff, SIS staff and employees with the.

4

rank of Lieutenant or higher.

5

4.

Frequency of Training at Dublin

6

a.

All existing FCI Dublin employees shall complete

7

the revised training program no later than the end of the second

8

quarter of 1998.

9

shall, as applicable, complete the specialized eraining programs

10

Empl~yees

who qualify for specialized training

no later than six months after this agreement becomes final.

11

b.

New employees will be provided with and instructed

12

to read applicable policies during Institution Familiarization,

13

and will, subject to the physical limitations of individual

14

employees, attend Introduction to Correctional Techniques

15

training at the Federal Law Enforcement Training Center, Glynco,

16

Georgia, and will receive the local training program described

17

above within six months of beginning work at FCI Dublin.

5.

18
19

Refresher Training:

Bureau of Prisons' staff shall provide refresher training at

20

appropriate intervals to staff, including annual local and

21

specialized refresher training.

22

F.

Inmate Orientation

23

1.

Bureau of Prisons' inmates will be provided with

24

literature on topics concerning sexual assault and harassment,

25

including recognition and reporting, during the admission and

26

orientation period following arrival at the institution.

27

with similar information will be placed in the institution.

28

2.

Posters

As required by Program Statement 5324.02, part 7c, BOP
8

-...",.---

·

.
1

shall develop technical assistance, training materials and

2

information for distribution to all BOP inmates concerning

3

preventing and avoiding sexual assault.

4

include information for victims of sexual assaults concerning

5

their rights under BOP policies, how to make a confidential

6

report to prison staff or the OIG Hotline and seek protection in

7

the unlikely event of a sexual assault or if they receive

8

threats, etc.

9

presentation that covers the written materials, which

The~e

materials should

BOP shall also prepare a candid and complete

10

presentation shall be given as part of the HIV-AIDS discussion in

11

the Institution Admission and Orientation Program.

12

3.

BOP shall also develop specialized training materials

13

and information for distribution in the Institution Admission and

14

Orientation Program to female inmates, including their rights to

15

privacy in prison.

16

G.

17

Psychological and Medical Services for Victims
1.

The Bureau of Prisons will assure that any.inmate

18

who claims to be the victim of a sexual assault is promptly

19

provided with appropriate medical and psychological" care in an

20

environment that meets both the inmate's safety and therapeutic

21

needs.

22
23
24

2.

With regard to the provision of mental- health

services, the following is a guideline for a suggested protocol:
a.

Psychology Services or other mental health

25

staff should be notified immediately after the initial report by

26

an inmate of an allegation of sexual abuse/assault of an inmate.

27
28

b.

Any alleged victim(s) will be seen, as soon

as possible, and preferably no later than 24 hours following such
9

·

.
1

notification, by a mental health clinician to provide crisis

2

intervention and to assess any immediate and subsequent treatment

3

needs.

4

c.

The findings of the initial crisis/evaluation

5

session and the additional follow-up evaluation, assessment and

6

file review should be reduced to writing within one week of the

7

initial session and, once drafted, placed in the appropriate

8

treatment record,

9

and institution staff responsible for oversight of sexual assault

10
11

wit~

a copy provided to the Clinical Director

prevention and intervention procedures.
d.

Additional psychological or psychiatric

12

treatment, as well as continued assessment of mental health

13

status and treatment needs, should be provided as needed and only

14

with the patient's full consent and collaboration except when

15

there is a need for immediate emergency· psychiatric care of the

16

type addressed by the BOP Health Services Manual, the BOP

17

Psychology Services Manual, and by 28 C.F.R

18

concerning psychiatric treatment and medication.

19

regarding the need for continued treatment and/or assessment will

20

be made by qualified clinicians according to established

21

professional standards, and should be made in full recognition of

22

the potential impact, in terms of immediate and delayed

23

psychiatric or emotional sYmptoms, commonly experienced by

24

victims of sexual abuse/assault.

25

decline further treatment services, he or she will be, asked to

26

sign a statement to that effect.

27

continue to pursue treatment, the clinician will facilitate

28

referral of the patient to

th~

§§

549.90 et seq.,
Decisions

If the patient chooses to

If the patient chooses to

appropriate treatment options.
10

--_.__ ..-- ._---"------------

---------r---

~ay

1

This

include individual therapy, group therapy, further

2

psychological assessment, assignment to a mental health case

3

load, referral to a psychiatrist and/or other treatment options.

4

Pending referral, mental health services will continue unabated.

5

e.

All additional

tr~atment

and evaluation

6

sessions will be properly documented and placed in the

7

appropriate treatment record to ensure continuity of care within,

8

between, or outside BOP facilities.

9

f.

Should the patient be released from custody

10

during the course of treatment, the patient will be advised of

11

community mental health resources in his/her area.

12

H.

Program Statement Reyisions

(National)

13

1.

Subject to the APA requirements of notice and

14

comment, the Bureau of Prisons will make the following revisions

15

to Program Statement 5324.02 and its successor Program

16

Statements.

17
18
19
20
21

2.

The "Purpose and Scope" section will be revised to

reference BOP employees as possible assailants.
a.

The definition of "sexual assault" has been

revised to read as follows:
Definition: Inmate-on-Inmate Sexual Abuse/Assault:

22

One or more inmates engaging in, or attempting to engage in a

23

sexual. act with another inmate or the use of threats,

24

intimidation, inappropriate touching, or other actions and/or

25

communications by one or more inmates aimed at coercing and/or

26

pressuring another inmate to engage in a sexual act.

27

or contacts between inmates, even when no objections are raised,

28

are prohibited acts.

Sexual acts

11

1

Staff-on-Inmate Sexual Abuse/Assault:

2

Engaging in, or attempting to engage in a sexual act with any

3

inmate or the intentional touching of an inmate's genitalia,

4

anus, groin, breast, inner thigh, or buttocks with the intent to

5

abuse, humiliate, harass, degrade, arousa, or gratify the sexual

6

desire of any person.

7

and a staff member, even when no objections are raised, are

8

always illegal.

9

3.

Sexual acts or contacts between an inmate

The BOP will continue to refer allegations of staff

10

misconduct to the Department of Justice, Office of Inspector

11

General for further referral, when appropriate, to the FBI.

12

The notification procedures require that all complaints of

13

possible criminal sexual misconduct by prisoners or BOP staff be

14

reported to the Office of Internal Affairs, and that the Office

15

of Internal Affairs report in turn to the Office of Inspector

16

General, which refers such complaints, when appropriate, to the

17

FBI.

18

4. The Bureau Of Prisons will ensure that the all

19

Institution Supplements concerning Inmate Sexual Assault

20

Prevention/Intervention Programs reference Program Statement

21

1330.13 §8(d) and its successor provisions, which allows the

22

submission of Requests for Administrative Remedy concerning

23

sensitive issues directly to the appropriate Regional Director.

24

5.

A new section 4(e) to all Institution Supplements

25

to Program Statement 5324.02 and its successor provisions

26

shall include the following provision:

27

Confidentiality;

28

of an inmate-victim

Information concerning the identity
repor~ing

a sexual assault, and the
12

.--.------lI'-------------""""T'------------r-----.-------

- ----, ,---.. ".

1

fact of the report itself, shall be limited to those

2

who have a "need to know" in order to make decisions

3

concerning the inmate-victim's welfare and for law

4

enforcement/investigative purposes.

S

III. MONITORING AND ENFORCEMENT
A.

6

7

Progress Reports

Counsel for the government will provide at least three
plaintiffs~

8

reports to

counsel detailing BOP's progress in

9

fulfilling all obligations promised as part of this settlement

10

agreement.

11

between the date this agreement is signed by all parties and June

12

30, 1998. Subsequent reports will cover six month intervals.

13

gach report will be provided to plaintiffs' counsel within 45

14

days following the end of the period, with the final report

15

covering the period ending June 30, 1999.

16

will address each issue addressed in "

17

and counsel will attach copies of policies, procedures, training

18

materials or other applicable documents referenced in those

19

sections.

20

perjury, by counsel for the United States.

21
22

The first progress report will cover the period

The progress reports

II.B through II.H, above,

The progress reports will be made, under penalty of

B.

Policies, Procedures And Training Materials

To the extent that BOP has not already implemented certain

23

policies, procedures and training materials consistent with this

24

Agreement prior to the execution of this Agreement, BOP will

2S

provide Plaintiffs' Counsel with drafts of policies, procedures

26

and training materials prepared in connection with this

27

settlement agreement before these documents are finalized, for

28

comments and suggestions.

Plaintiffs' Counsel will provide
13

__...JL._------------'T'"""---

._--~._-_.

..I'"---_._-_._--" ._.

----~

1

written comments no later than 30 calendar days after receipt of

2

any draft.

3

materials already in place at the time this Agreement is signed,

4

BOP will provide such materials to plaintiffs' counsel.

5

agrees to consider plaintiffs' counsel's comments and suggestions

6

concerning such materials.

7

C.

BOP

Dispute Resolution And Reinstatement

Pursuant to the PLRA, the only remedy available to

8

9

With respect to policies, procedures and training

plaintiffs in the event of a breach of this agreement is to

10

reinstate the underlying action.

11

parties agree that before plaintiffs request reinstatement of the

12

underlying action, they will negotiate in good faith concerning

13

the issue in dispute and may participate in a face-to-face

14

mediation session supervised by a mediator appointed by the Court

.15

18 U.S.C. §3626(g) (6).

or otherwise agreed to by the parties.

The

In the event that the

16

dispute is not resolved through mediation, the parties agree to

17

submit the issue to the mediator for an evaluation of the merits

18

of the parties' stance on the issue.

19

that the dispute warrants face-to-face mediation, it will pay the

20

mediator's fees incurred.

D.

21
22

If the United States agrees

Termination

The Bureau of Prisons agrees to perform all the obligations

23

contained in this agreement on or before June 30, 1999.

When all

24

agreed obligations are fulfilled, counsel for the BOP will send a

25

final advisory to that effect along with the last of the three

26

progress reports it has agreed to provide to Plaintiffs' counsel,

27

under penalty of perjury.

28

seek an order dismissing the injunctive relief claims with

At that time, the United States will

14

. _ _..

~

._ _....u-

_

1

prejudice.

2

IV. DAMAGES AND DISMISSAL

3

Pursuant to 28 U.S.C.

2677, in settlement of the

§

4

Plaintiffs' Federal Tort Claims Act claim and all other claims of

5

Plainti.ffs against the United

6

employee of the Bureau of Prisons arising out of the incidents

7

alleged in the complaint, the United States agrees to pay a"total

8

of $500,000.00.

The

~heck,

Stat~s

cmd any current or former

or Electronic Funds Transfer, shall

9be made payable to "Rosen, Bien & Asaro Trust Account."

In

10

return solely for the payment of this financial settlement

11

Plaintiffs agree to dismiss the Federal Tort Claims Act cause of

12

action with prejudice and to release all claims arising out. of

13

the incidents alleged in the complaint against the defendants in

14

their individual capacities.

15

filed with the Court within two Court days of receipt of the

16

payments from the United States.

17

the United States agrees that the monetary payment made to each

18

Plaintiff is to compensate her for physical injuries and

19

resulting emotional injuries alleged in the complaint.

20

monetary settlement is undertaken pursuant to the provisions

21

contained in 28 U.S.C.

22

constitute a complete release of any claim against the United

23

States: and against the employee of the government whose act or

24

omission gave rise to the claim, by reason of the same subject

25

matter."

26

binding upon the receipt of the payment and the execution of the

27

dismissal with prejudice.

§

The Request for Dismissal shall be

Without admitting liability,

This

2672, the acceptance of which "shall

The monetary settlement shall be complete and final and

28
15

..-

-JL

.-,..

.

1

V.

2

Counsel for the parties agree that plaintiffs' counsel are

ATTORNEYS' FEES, COSTS

AND LITIGATION EXPENSES

3

entitled to apply for an award of reasonable attorneys' fees and

4

costs in an amount to be determined.

5

counsel will meet and confer in good .faith in an attempt to

6

resolve the amount of the award prior to filing a motion with the

7

court.

Pursuant to Local Rule 54-5

8

VI.

COOPERATION

9

The parties and their attorneys agree to use their best

10

efforts and to act in good faith to effectuate and carry out the

11

terms of this Agreement.

12

VII. COUNTERPARTS

13

This Agreement may be executed in any number of

14

counterparts, all of which taken together shall constitute one

15

and the same instrument, and any of the parties may execute this

16

Agreement by signing any such counterpart.

17

IIIIIIIIII
IIIIIIIIII
IIIIIIIIII
IIIIIIIIII
IIIIIIIIII
IIIIIIIIII

18
19
20

21
22
23
24

Dated::V1i /~?

25
26

27

Dated: d
Dated:

fa / ~ ~

:J./if J~ ~

28

16

1

DEFENDANT UNITED STATES:

2

Dated:
3

I \

~ ~<-, q~

U.S. DEPARTMENT OF JUSTICE
FRANK W. HUNGER
Assistant Attorney General
Civil Division

4

5

DiViSL

HELENE M. GOLDBERG
Director, Torts Branch

6

. il

7
8

SEPH SHER
S ior Trial Counsel
Torts Branch
Civil Div'

9

10

rr~........,;o

11

12

E

Branch
Civil Division
U.s. Department of Justice
P.O. Box 7146
Washington, DC 20044
Telephone: (202)616-4199
ia~~-orney,

13

14
15
16

Attorneys for the United States

17
18

APPROVED AS TO FORM:

19

Dated,

20

::t/13 i18'"

21
22
23

24

25

Attorneys for Pl

26
27
28
17

-------.....JL-----------,.-------------r--------------~---.-"---

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DARIUS D. LITTLE,

r,~

;T',' I? rr, 3: ~ 3

)
)

Plaintiff,

)
)

v.

)

NO. 96-2520-TUA

)

SHELBY COUNTY, TENNESSEE;
A.C. GILLESS, individually
and in his official capacity
as Sheriff of Shelby County,
Tennessee; DENNIS DOwn,
indiVidually and in his
official capacity as Chief
Jailer of Shelby County; and
JIM ROUT, individually and in
his official capacity as
Mayor of Shelby County,

)
)
)
)
)
)
)
)
)
)
)
)

Defendants.

)

ORDER GRANTING INJUNCTIVE RELIEF TO REMEDY
UNCONSTITUTIONAL CONDITIONS IN SHELBY COUNTY JAIL

IT APPEARING TO THE COURT that on September 12,
parties entered into a

which

was

the

Consent Order Stipulating Liability for

Injunctive Relief Purposes Only;
Remedy,

1996,

entered by

and Establishing Procedure for

the

court

(hereinafter

"Consent

Order") .
IT

FURTHER APPEARING TO THE COURT

that

pursuant

to

said

Consent Order, the court found for purposes of injunctive relief
that Darius Little's Eighth Amendment right was violated due to the
risk of physical and sexual assault by other inmates in the Shelby
County Jail.

Liability was stipulated pursuant to 42 U.S.C.

§

1983.

IT FURTHER APPEARING TO THE COURT that,
Consent Order,

pursuant to said

the parties were to submit a prospective remedy

which was narrowly drawn, extending no further than necessary to
correct the violation of the federal right as stipulated, and which
is the least intrusive means necessary to correct

the.~iolation

of

the federal right.
IT FURTHER APPEARING TO THE COURT that the parties consulted
with

Charles

Glover

Fisher,

Ray Nelson,

and Bill

Garnos,

all

experts in jail conditions, who have been certified by this court
as experts pursuant to this court's order dated April 1, 1997.
IT FURTHER APPEARING TO THE COURT that the experts agree that
the factors which will impact reducing the risk of violence and
sexual assault in the Shelby County Jail include:
A.

Continual supervision of the inmates;

B.

Properly classifying inmates, and separating inmates who

are likely to assault other inmates;
C.

Separating

likely

victims

of

assault

from

likely

predators.
IT FURTHER APPEARING TO THE COURT that upon the testimony of
the court's certified experts,

the court finds

that the relief

ordered herein is narrowly drawn, extends no further than necessary
to correct the violation of the federal right, and is the least
intrusive means necessary to correct the violation of the federal
right.

In construing this remedial order,

the court has given

substantial weight to any adverse impact on public safety, or the
operation of the criminal justice system caused by the entry of
2

this order.

The court has further kept in mind the desires of

Congress, as contemplated by the Prison Litigation Reform Act, Pub.
L. No. 104-134

§

800, et seq.

(currently codified at 18 U.S.C.

§

3626) •

IT FURTHER APPEARING TO THE COURT that the

terms

foll~wing

need to be defined as they are used in this order.
"Cell" -- an individual living area for one or two inmates,
that contains at least one bunk, a toilet, and a wash basin.
"Cell Block" -- a group of cells connected by a common day
room

(or

corridor

on

the

lower

level

of

the

jail)

that

are

accessible by a single set of security doors that open into a main
access corridor for the jail.
"Cell Block Officer"
Department

whose

primary

a

jailer employed by -the Sheriff's

responsibility

while

on

duty

is

to

supervise inmates housed in a cell block.
With the aforestated considered,
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
1.
order,

Classification.

Within 90 days of the entry of this

each inmate admitted to the Shelby County Jail will be

confidentially interviewed by classification staff prior to such
inmate's cell assignment to determine if such inmate has known
enemies from whom he should be separated; protective custody needs;
or gang involvement.

Information will be collected during the

initial classification interview to determine if such inmate has
assaulted other inmates during prior incarcerations, or has been a
victim of an assault by another inmate during prior incarcerations,
3

or fears

he may be victimized by another inmate,

or has gang

affiliations or previous convictions for violent crimes.

This

information shall become part of an automated inmate information
system,

which

shall

be

developed

and

implemented

as

soon

as

practicable, using good faith efforts but no later tha»..nine months
from the entry of this order to insure that potential victims are
separated from known predators (i.e., inmates who have assaulted
other inmates).

All housing unit assignments will be made by

classification staff only.

Within six months after the entry of

this order, all staff assigned to classification will complete a
course of classification interviewing training designed to insure
compliance with this order.
2.
level V,
never

be

Housing.
VI,

Any inmate who is classified

as

violent

or V:U on the current classification scale)

housed

in

a

cell

with more

than

one

other

(a

shall

inmate.

Whenever it becomes necessary to assign two inmates to the same
cell, classification" officers will not house potential victims with
known predators.

Furthermore, inmates classified as violent (i. e.,

those indicated by a red dot on the wrist band under the current
classification

system,

and

inmates

with

a

known

history

of

violence, will not be housed with inmates classified as nonviolent
(indicated by a blue, green, or yellow dot on the wristband, under
the current classifications).

When a compatible housing assignment

cannot be made, the inmate shall be housed in a single cell.

As

soon as reasonably possible, but no later than nine months after
the entry of this order,

the facility shall implement a policy
4

requiring single-celling for those inmates who have not yet been
fully classified.
3.
be

Inmates Supervision.

continuously assigned

to

A separate cell block officer shall
each of

the cell

blocks

in which

inmates are incarcerated, on the lower level of the current jail
facility whenever any of the cells in such cell block house two or
more inmates.

Each cell block officer shall monitor the cell block

to which he/she is assigned continuously to assure the inmates
housed together in the same cell are housed compatibly.
documented emergencies

involving risk of safety

Only under

to cell block

officers or inmates will cell block officers supervise more than
two adjacent cell blocks at a time, and shall only do so for the
time period necessary to resolve such emergency.

The continuous

monitoring required by this order shall be implemented as soon as
reasonably possible, but no later than nine months from the date of
entry of this order.
4.
2,

Cell block officers assigned to housing duties on floors

3 and 4 of the current jail facility will also continuously

supervise individual cell blocks in which inmates are incarcerated
to assure compatibility.
from

their

assigned

Cell block officers may only be removed

cell

blocks

for

documented

emergencies

involving risk of safety to cell block officers or inmates, and
then only for the time period necessary to resolve such emergency.
Under no circumstances shall a cell block officer supervise more
than two adjacent cell blocks at a time.

It is the intent of this

order that there shall be a separate cell block officer assigned at
5

all times to supervise each cell block in the current facility on
floors 2, 3 and 4, when such cell block houses inmates and are not
totally locked down for the entire shift.

Every cell block shall

have its own cell block officer continuously supervising such cell
block except as otherwise allowed in this order.

T~

continuous

monitoring required by this order shall be implemented as soon as
reasonably possible, but no later than nine months from the date of
entry of this order.
5.

Each cell block officer will insure that inmates are

housed compatibly by frequent observation of behavior of inmates in
the cell block such cell block officer is supervising,

and by

confidentially interviewing inmates in the cell block to determine
if the inmate's cell assignment is safe.

In addition·, cell block

officers will interview any inmate in the cell block who the cell
block officer believes may be having compatibility problems with
other inmates.

Inmates identified as having potentially violent

cell mate compatibility problems will be promptly separated and
referred to classification for review.
6.

In general popUlation cells on the second,

third and

fourth floors, inmates will be permitted to move between their cell
and the day room of the cell block during a five minute period each
hour,

unless

such

movement

operational procedures.
hour,

is

otherwise

restricted

by

jail

During the remaining 55 minutes of the

the cell doors will remain locked.

Inmates may remain in

their cells, or the day room during those 55 minute periods.

Cell

block officers will continuously monitor the cells during these
6

..

__....._ -

five minute periods when the cell doors are open to insure that no
inmate enters a cell within the cell block to which such inmate is
not assigned.
7.

Continuous direct observation of inmates by cell block

officers is required during all out-of-cell

activity~

lock down

and protective custody housing units.
8.

A court-appointed Special Master shall he appointed hy

the court to make regular inspections to verify compliance with the
terms of this order.

Counsel for plaintiff and defendants are

hereby ordered to submit the names of five potential compliance
monitors within 60 days of the entry of this order, in accordance
with the Prison Litigation Reform Act.

The court hereby determines

that an appointment of a Special Master is necessary"hecause the
remedial phase of this order is sufficiently complex to warrant
such employment.

The Special Master will prepare a

periodic

monitoring schedule, which will be used to record observations of
each

element

of

t"he

order.

The

Special

Master

will

also

investigate each alleged inmate on inmate altercation, whether rape
or other assault, to determine if any provision of this order had
not been followed in such cases, and to identify any policy or
procedure that

if in place could possibly have prevented such

altercation.

The

Special

Master

recommend:i.ng agency regulat:i.ons

shall

be

and procedures

responsible
that

for

facilitate

compliance with this order.
9.

A monthly report will be prepared by the Special Master

w:i.thin ten days of the close of the calendar month to report the
7

progress on the defendants'

compliance with this order and the

results of the inmate-on-inmate altercation investigations.
Special

Master

will

attempt

to

subjectively

categorize

The
these

altercations which represent predatory and gang-related behavior as
opposed to the normal kind of altercations that

resul~~rom

people

living in close proximity with one another.
10.

The

defendants'

Special

counsel,

Master,

along

shall conduct a

with

plaintiff's

conference no

later

and
than

eighteen months after the entry of this order to determine whether
this order has been successful in reducing the risk of physical
and/or sexual assault in the Shelby County Jail.

If this order has

not made an impact on reducing sexual and physical assaults in the
jail to a constitutionally acceptable level,

the Special Master

shall propose to the court what other remedial relief might be
appropriate to correct the unconstitutional condition.
IT IS SO ORDERED this

/,J* day of November,
DISTRICT JUDGE

8

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