A PROJEO OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.VOL. 7, NO.1, WINTER 1992 • ISSN 07~8·2655 ,

TB Comes Back, Poses Special Threat to Jiitls, Prisons

disease, and few have the expertise todeal with the new drug-resistant strainswhich have emerged.

official in New York City characterizedthe disease there as "out of control."!

Thought to have been nearly elimi­nated, TB now has medical professionalsconfounded and anxious, if not pan­icked. This generation of healthprofessionals has had little experiencewith treating the known forms of the

Prisons take place of tenements asideal environments for 1B

At the turn of the century tuberculosisaccounted for 25% of the nation'sfatalities. It has historically struckhardest at poor people who live insubstandard housing. In any crowded

tuberculosis in the United States. Butduring the course of those three years,health officials have come to realizethat their goal is unreachable. Whilemedical experts say they believe thedisease will eventually be broughtunder control, tuberculosis has now re­emerged as a major public healthmenace.

New cases are being reported at abreakneck pace, and one public health

setting, such as a slum, homeless shelter,nursing home, or prison; the outbreakand spread of the disease poses a hazard.Dr. Steven Safyer, director of MontefioreMedical Center at Rikers Island in NewYork CitY,2 refers to jails and prisons as"the tenements of today," where idealconditions for the spread of the diseasemeet head-on with the population mostvulnerable to it. Tenement life in theearlier part of the century, wheretuberculosis was rampant, held many .things in common with life in prisontoday: overcrowding, poor ventilation,inhabitation by an at-risk and unhealthypopulation, and inferior health care.

During the 1940s and '50s the numberof cases dropped off dramatically due toimprovements in housing and sanitation,and the introduction of anti-tuberculosisdrugs. Ample government funds had alsobeen provided to combat the disease.The tuberculosis epidemic of the early1900s touched mostly poor white

~ immigrants who were crowded into~ urban neighborhoods. The tuberculosis-5 of this decade thrives under the same0:::

kinds of conditions, but its casualty has au different face. That face is most likely~ that of a Black or Latino living on the~ street, in prison or a shelter, likely to be] HIV-infected, out of money, with a

In the early part of the century, crowded "five cents a spot" Lower Eas=t-S-id~e==(N-Y-C-'} history of drug abuse and no access tolodgings were breeding grounds for tuberculosis. Today's prisons and jails-likethe tenements-are packed with people, many of whom are in poor health.

Only three years ago Dr. LouisSullivan, the Secretary of Healthand Human Services, was

optimistic enough to set 2010 as thetarget date for total elimination of

proper health care. This same popula­tion, of course, is overrepresented inprisons and jails, and moves in and out ofthem frequently. The high mobility addsto the number of people with potentialexposure to the disease.

The decline of TB control programsHIV infection is most often cited in the

media as the cause for the recent re­emergence of the disease, and while thisis true in large part, meaningful social,economic and historical factors contrib­uted to the increasing rate several yearsbefore the full force of HIV infectionwas felt.

Amajor study by Brudney and Dobkindocumenting the rise of tuberculosis inNew York City and, by analogy, otherurban areas, presents the "stark reality"that the increase is due largely to thetotal failure of the public health systemand the federal government to continuefunding TB control programs. The studysummarizes the historical events leadingto the decline of these programs.3

In the face of years of warnings,predictions, and urgent recommenda­tions--all unheeded--about the renewedthreat of the disease, TB prevention andtreatment programs were systematicallycut. These government cuts, say theauthors, have led directly to the resur­gence of the disease.

The editors of the review whichpublished the Brudney-Dobkin findingsrefer to a common occurrence in publichealth practice which they describe asthe "V-shaped curve of concern." First,evaluations of a public health programshow improvement, which then leads todiminishment of need. Subsequently,resources to run programs dry up. Andfinally, the incidence of the "controlled"disease begins to rise in proportion todiminished resources. One can picturethe letter "V," ilie editors suggest, andthen compare it with graphs of actual TBcase rate data. The graph also outlines a"V" shape.

The combination of the decline ingovernment-funded TB preventionprograms during the Reagan years, thespread of HIV infection, the increase inhomelessness, and a rise in drug abusehas added up to disaster.

Dr. Safyer says that his experiencewith the more than 500 patients hedischarges each year on active TBtreatment--more now with drug resistantTB--is that they go on to what Dobkinand Brudney found in Harlem Hospital: a90% loss to followup and continuity ofcare. "It is no wonder," he says, "that we

2 WINTER 1992

are experiencing a rapid rise in drugresistance--the public health infrastruc­ture is not present in New York City."

Control programs are importantbecause, while the technology fordiagnosis, treatment, care and control oftuberculosis is available, it requires

support from public health programsthat goes beyond drugs in the form ofsupervised therapy; careful contactfollowup; use of community healthworkers for surveillance and treatment;hospitalization when necessary; medica­tions provided without cost to thepatient; compliance enhancements andenablers to assure drug taking andfollowup. When such support is re­moved, case rates rise and the diseasespreads.

Multiple-drug resistance intuberculosis (MDR-TB)

Coinciding with the tuberculosisepidemic in New York City and otherurban areas are reports of an increase inthe number of patients infected withdrug-resistant strains of the disease.

There are two ways to contract MDR­TB: an individual can either be infectedwith MDR-TB to begin with, or a personinfected with "regular" TB may fail tocomplete a course of treatment withantituberculins such as isoniazid (INH) orrifampin. The stopping and starting ofmedication gives rise to the opportunityfor infection. Then, the drugs kill onlythe must vulnerable of the bacteria,leaving the remaining, stronger germs tobe passed on.

Successful treatment requires a patientto follow a demanding course of therapy,perhaps taking as many as four differentdrugs, several pills per dose, every dayfor two months and then several times aweek for six more months. Such acomplicated course can be difficult tofollow for those whose low immunitymakes them most vulnerable to thedisease. Many are trying to survive onthe streets and figure out where the nextmeal is coming from; adhering to such astrict regimen often proves too burden­some.

If "first-line" drugs prove ineffective,the patient must go to "second-line" drugs

to attempt to cure the disease. If aperson proves to be infected with MDR­TB, the course of treatment is muchlonger, more costly, and more compli­cated. MDR-TB is difficult to manage;consultation with experts in treatingmicrobacterial diseases is warranted.

After studying sputum samples fromall tuberculosis cases diagnosed duringthe first quarter of 1990 and the firstquarter of 1991, the Centers for DiseaseControl reported a rise in drug-resistanttuberculosis naW~nwide. The number ofpatients whose 'li)3 was resistant to INHincreased by 5(}% and the numberresistant to rifampin increased 73%. Thenumbers of cases resistant to two drugsor more increased by 77%.4

"If you are a healthy, immuno­competent person who contracts MDR-TB,you have a 50% chance of dying from it,"says Dr. Alan Bloch, medical epidemiolo­gist for the Division of TuberculosisElimination of the Centers for DiseaseControl. "You have a 25% chance thatyour body's immune system will bring itinto remission, and you have a 25%chance of becoming a chronic excreterrequiring lifetime isolation and quaran-

Editor: Jan ElvinEditorial Asst.: Betsy Bernat

Alvin J. Bronstein, Executive DirectorThe National Prison Project of theAmerican Civil Liberties Union Foundation1875 Connecticut Ave., NW, #410Washington, D.C. 20009(202) 234-4830 FAX (202) 234-4890

The National Prison Project is a tax-exempt foundation­funded project of the ACLU Foundation which seeks tostrengthen and protect the rights of adult and juvenileoffenders; to improve overall conditions in correctionalfacilities by using existing administrative, legislative andjudicial channels; and to develop alternatives toincarceration.

The reprinting of JOURNAL materiol is encouraged withthe stipulation that the Nationol Prison Project JOURNALbe credited with the reprint, and that a copy of the reprintbe sent to the editor.The JOURNAL is scheduled for publication quarterly bythe National Prison Project. Materials and suggestionsare welcome.

The NPPJOURNAL is availableon 16mmmicrofilm, 35mm microfilm and 105mmmicrofiche from Vniversity MicrofilmsInternational, 300 North Zeeb Rd., AnnArbor, MI 48106-1346.

THE NATIONAL PRISON PROJECT JOURNAL

of view on isolation. If a prisoner is in avery active stage of the disease, spittingup sputum, and so on, it would beirresponsible to put him or her in generalpopulation. What worries me is thatcorrections administrators will usesurrogate markers, such as HIV infection,TB, or AIDS to isolate people. Isolation isfine if narrowly targeted."

c:o.~

"§~ Crowding in prison~ When planners and architects design.~ correctional t).cilities, they construct~ systems to mf:e1 what is called theci "design capacity," or the number of~ people intended to inhabit the building.~ When that capacity is exceeded, as is-g often the case today (se~ NPP Status>; Report, p. 13) a ventilation system which~ was not medically designed may bel unable to filter the air to prevent the1l accumulation of microorganisms andg: other contaminants.@ Ventilation in institutions is generally-t designed to remove odors and provide1: heating and cooling, not to prevent8 infection.

The physical conditions that give riseto the spread of TB are part and parcel {)fmost court pens, correctional facilities,and police holding areas: overcrowding,poor ventilation, and constant movement.Studies have even shown that spendingtime in prison or jail can be an indepen­dent risk factor in itself for the contrac­tion of tuberculosis.s

Unlike the HIV virus, which cannot bespread through casual contact, the TBbacteria is airborne and can be transmit­ted by coughing, sneezing, or talking.When people talk, cough, or sneeze, largenumbers of droplets are ejected, many ofwhich contain infected organisms. Thedroplets can remain suspended in a roomor cell for many hours after an infectedindividual has departed.

Some health experts say that crowdingby itself, if accompanied in all cases byadequate ventilation, may not contributeto spread of the disease. But according toone environmental expert,"Crowding...favors the spread of suchinfections because it increases thelikelihood of the organisms finding anew host and reduces the distances theymust travel between hosts."6

Epidemiological studies of TB in theCook County, Illinois, Jail demonstratedthat crowded contact among largenumbers of men caused a rapid spread ofdisease throughout the institution.7

"The mass incarceration of populationsat risk," says Safyer, "has contributed tothis epidemic. Putting more than one

Isolation needs and civil libertiesconcerns

Usually a seven-to-14-day isolationperiod is sufficient for a person with ahealthy immune system to become non­infectious, once treatment therapy hasbegun. Since people with HlV infectiondo not respond as quickly to drugs, theywill require a longer course of therapy.

Larry Gostin, executive director of theAmerican Society of Law and Medicine,says, "I would take a public health point

almost 900%, from 15 per 100,000 in 1976­78 to greater than 130 per 100,000 in1988-91." Coughlin stressed that "their[the prisoners'] health problems reflectthose faced by the community at large."

In the wake of the fatalities, New Yorkcorrections officials in the state havebegun testing all staff and inmates toprovide a baseline of data.

All inmates and staff with positivereactions to skin tests should be consid­ered for preventive doses of drugs,according to health experts. HIV­negative individuals who test positive ona tuberculosis skin test should undergosix to 12 months of INH therapy, whileHlV-positive people should undergo a full12 months' worth.

The New York City experience issimilar to the state's. Dr. Safyer reportsthat in 1985 Rikers Island had two deathsfrom tuberculosis and in 1990 there were12 (four of which were MDR-TB).

Drug-Resistant Tubercu losisProvisional figures for the first three months of 1991; confirmed casesof tuberculosis were tested for resistance to two major T8 drugs,isoniazid and rifampin.

tine. In all three scenarios you will needto be isolated from society."

If the MDR-TB occurs in a patient withHlV infection it usually proves deadly;indeed, being infected with HIV cannarrow the progression from disease todeath to as little as 30 days.

Most tuberculosis, health officialsemphasize, is still "garden-variety,"however, and responds to drugs. Indi­viduals who become infected may neverdevelop a clinical illness because theimmune system brings the infectionunder controL The infection couldpersist for years while the individualremains at risk of developing the diseaseat any time, especially if the immunesystem becomes impaired.

New York: a microcosm?Last November, a strain of drug­

resistant tuberculosis killed 13 prisonersand a correctional officer in New York.

All 14 fatalities in New York had onething in common: a weakened immunesystem. The prisoners were immuno­suppressed because they were HlV­infected; the correctional officer'simmune system had been weakenedbecause he was receiving chemotherapytreatments for cancer.

After the 14 deaths became known,Thomas A. Coughlin 3d, commissioner ofcorrectional services in New York,announced that "the rate of TB amonginmates has increased dramatically, rising

THE NATIONAL PRISON PROJEG JOURNAL WINTER 1992 3

million Americans behind bars-- mainlyminorities--must be evaluated from apublic health as well as a social perspec­tive."

Who is at risk for contractingtuberculosis?

"HIV," said CDC's Bloch in a speech tocorrectional health care workers, "is nowthe strongest risk factor yet identifiedfor developing tuberculosis.

"HIV has changed tuberculosis from achronic disease to an acute disease aswell as one with an extremely shortincubation period."

Another New York City study showedthat individuals who are HIV-infectedare at very high risk of developing activeTB, apparently because the suppressedimmune system allows the reactivationof latent infection.8 Thus, while HIVinfection does not actually increase thechance of getting infected with TB, itincreases the chance of its developmentinto active disease. The estimated risk ofdeveloping tuberculosis in the HIV­positive patient groups is 8% per yearversus a lifetime risk among the immu­nocompetent of 10%.9

The incidence of HIV infection in stateand federal prison systems is now ratedat 180 per 100,000, compared to 17 per100,000 in the outside world. In otherwords, a person in prison is about 10times more likely to have AIDS. In termsof TB, the result is that "correctionsfacilities are sitting on a powder keg,"says Bloch. Arecent study showed onein 20 people in a correctional facility isHIV-positive, while the range of preva­lence in some institutions is as high asone in nine, some one in seven for HIVinfection.

"If TB gets in those systems, you havethe potential for a very large number ofcases to develop in a very short period oftime. If it is MOR-TB it is extremelyexplosive," says Dr. Bloch.

Spread beyond the wallsTuberculosis will also touch communi­

ties into which prisoners are released.More than nine and a half million peopleare discharged annually from local jails,and more than 400,000 from state andfederal prisons--all potentially infectiouswith TB. Because the median age uponrelease is 28 years, the lifetime risk of TBin a person infected during imprisonmentmay be considerable.1O

Pretrial detainees stay in jail a rela­tively short time. Within seven days ofarraignment in New York City, forexample, 47% of detainees have been

4 WINTER 1992

released back into their communities.Many return to homes with childrenwho may then become exposed.

Dr. Safyer also points out thatMontefiore Rikers Island staff have ahigher positive skin test rate than theinmate/patients. "Many of our staff

have been working here for many yearsand some of that rate is from jobexposure."

Outbreaks of DIV/MDR-TB"This is the TB of the future and it is

happening right now," says Dr. Bloch."We have never seen...hospital-based...tuberculosis outbreaks like thisbefore and we have never seen drug­resistant TB outbreaks like this before."He stressed that both hospitals andcorrections facilities have many HIV-andTB-infected patients.

"Weare close to losing all of our first­line drugs for treating tuberculosis inthis country," he continued. "HIV is thedriving force behind these multiple-drugresistant tuberculosis outbreaks. Also,there is an extremely high mortality inpatients with end-stage HIV disease in avery short period of time."

The actual number of deaths fromMDR-TB is impossible to ascertain sincedoctors and laboratories do not routinelytest for the susceptibility of the bacteriato drugs.

Why standard tests fail in HIV/TB casesTuberculosis is also more difficult to

detect in an individual co-infected withthe HIV virus. When a person is infectedwith TB, he or she becomes extremelyanergic (without immune energy). Theimmune system is then incapable ofmobiliZing a response to make a skin testfor TB turn positive. Thus, yet anotherdifficulty is presented: the disease canescape detection among HIV-positivepeople, the group in which most of thenew cases have occurred.

Montefiore Rikers Island has foundthat 25% of active IV drug users areanergic upon entry.

What does the future hold?Dr. Bloch presented a grim scenario for

the year 2000: "I would like to be provenwrong, but my personal opinion is thatthis is what is going to happen: we willsee the widespread occurrence ofmultiple-drug resistant and pan-resistanttuberculosis....It will be extremely lethalto HIV-infected persons.

"Right now multiple drug resistanceappears confined to a few states. But,"says Dr. Bloch, "so was AIDS, initially,and so was a certain strain of gonorreah,but both entities were eventuallydisseminated thrpughout the UnitedStates. The simtl'ar initial distribution isan ominous sigh'that this is going tospread....

"We have reports of patients who areresistant to seven drugs and reports ofpatients resistant to all five first-linedrugs. All this," he reported, "within afew months after the initial outbreakswere investigated.

"One of the tragedies of this pan­resistant TB is when it infects an HIV­infected person it will wipe out thebenefits of AZT or whatever new anti­viral drugs we have."

CDC recommendationsDr. Bloch recommended the following

procedures be followed:I) Place TB patients on directly ob­

served therapy to make sure they getmedication;

2) Increase the number of drugs inregimens; at least two drugs to whichorganisms are susceptible. Somehospitals are now starting people onfive drugs;

3) Use negative pressure isolation rooms;4) Strictly enforce infection control;5) Establish special TB hospitals and

sanitoria. "Nobody is talking aboutthat now," he says, "but it will be thesubject of debate in the future";

6) Rapidly test for drug-susceptibility;7) Rapidly report results;8) Be alert to drug resistance in hospi­

tals and prisons;9) Report HIV in TB patients. "It would

be helpful," said Bloch, "if HIVreporting occurred for TB patients,but that will require state laws beingchanged";

10) X-ray everyone who tests positive forHIV, whether or not they have apositive skin test for TB and have nosymptoms.

Stop the buckBloch further suggests that a staff

member in the correctional facility beassigned to each TB case.

(cont'd on page 21)

THE NATIONAL PRISON PROJECT JOURNAL

\.i'I

NPP DenouncesACA's Failure toBack Use ofForce Standards

I n October 1983, Keith Hudson, aninmate at the Louisiana StatePenitentiary, was being transported to

a disciplinary cell within the prison bytwo correctional officers. An earlierargument had ensued between Hudsonand the officers. After moving him out ofsight of other prisoners, the officers beganto beat Hudson while he was in handcuffsand shackles. One officer held him whilethe other punched him in the mouth,eyes, chest and stomach. Alieutenantstanding nearby did nothing more thancaution the officers "not to have toomuch fun." The beating cracked Hudson'sdental plate, loosened his teeth and splithis upper lip.

The correctional officers' actions werein complete violation of the use of forcestandards established by the AmericanCorrectional Association (ACA). Yet, whenMr. Hudson's case reached the SupremeCourt of the United States in 1991, theACA declined two invitations to file anamicus brief on his behalf. Their decisiondrew sharp criticism from Alvin J.Bronstein, the executive director of theNational Prison Project.

Bronstein was appointed counsel inHudson v. McMillianl in April of 1991after the Supreme Court granted Hudson'spro se petition for certiorari. Underchallenge was the Fifth Circuit's decisionthat because Hudson had not suffered a"significant ~njury," he had no viableclaim under the Eighth Amendment banon cruel and unusual punishment.

Bronstein argued Hudson's case in theSupreme Court on November 13, maintain­ing that "significant injury" should not bea requirement of an Eighth Amendmentclaim. His argument was supported by animpressive group of amici (friends of thecourt). The office of the U.S. SolicitorGeneral not only filed an amicus briefbut also argued a portion of the case.Americans for Effective Law Enforcement(AELE), Human Rights Watch, and twoprisoners' rights groups also filed as amiciThe ACA, whose mission is to developprofessionalism in corrections, wouldhave been an influential ally.

THE NATIONAL PRISON PROJECT JOURNAL

Their standard regarding use of force byguards on inmates reads: "Written policy,procedure, and practice restrict the use ofphysical force to instances of justifiableself-defense, protection of others, protec­tion of property, and prevention ofescapes, and then only as a last resort aridin accordance with appropriate statutor~authority. In no event is physical force-justifiable as punishment."2 .

Bronstein first contacted the ACA ".regarding Hudson in April. In a lett.~r tothen-director Anthony Travisono, heurged the group to file an amicus brief"to help prevent the Supreme Court fromcreating an environment in which whathappened to Hudson and what happenedmore recently with the L.A.P.D. [LosAngeles Police Department] can becomeeveryday occurrences.

"I believe it would be disastrous forprofessional law enforcement andcorrections personnel if the SupremeCourt were to ratify the Fifth Circuit"decision, he wrote. "[C]orrectionalofficerscould hang a prisoner by his thumbs fortwo weeks. Every hour, an officer couldsmash the prisoner in the kidneys.However, because the prisoner suffered no'significant injury,' no claim could bemade that the officers' conduct violatedthe Constitution."

AELE also contacted the ACA; invitingthem to sign on to their amicus brief.Director Wayne Schmidt wrote toTravisono, "In more than 120 cases, ourbrief has been on the same side as the lawenforcement agency....This would be ourthird case" in which they filed "on theother side."

At their May meeting, the ACA Execu­tive Committee rejected both invitationsto join as amicus. President HelenCorrothers wrote to Bronstein, noting the

"abhorrence each member felt concerningthe use of unnecessary force." She saidthat the Committee felt it was not "in thebest interest of the ACA" to sign ontoAELE's brief.

"The role of the Association is to fostergood correctional practice through thedevelopment, promulgation and imple­mentation of policies, standards andmethods for measuring compliance oraccreditation," Corrothers wrote. "TheAssociation has...strongly advocatedthrough train\tJ.g and technical assistancecompliance "V;lth correctional policies andstandards cqncerning the appropriate andhumane care of offenders."

She concluded by saying, "This requestto file a brief in the United StatesSupreme Court against a member agencyis not covered by previously establishedpolicy and procedure."

Bronstein replied: "First, your protesta­tions about training, standards and goodcorrectional practice become meaninglesswhen you refuse to defend your ownstandards. Second, you were not asked 'tofile a brief against a member agency'....You were asked to appear as an expertfriend of the court, to explain and todefend your own professional standards,in a case against three correctionalofficers who clearly violated thosestandards. No agency is involved in thecase. And what difference should agencyinvolvement make? Suppose the Louisi­ana Department of Corrections decided tomurder every other incoming prisoner toalleviate overcrowding. Under yourrationale, the ACA would fill the air withsilence."

Bronstein then wrote to all membersof the ACA Standards Committee. "Ithought I should share with you thefact that, once again, the ACA leader­ship has demonstrated that ACAstandards are not professional correc­tions standards. Rather, they are acollection of words and phrases reliedon selectively by various ACA officialswhen it serves their interest (e.g., as adefense to a conditions laWSUit; as ameans of getting funds from thelegislature).

"The ACA Executive Committee action-­non-action may be a better description-­makes a sham of the whole standards andaccreditation process." II

Betsy Bernat is the editorial assistant ofthe NPPJOURNAL.

'No. 90-6531, cert granted April 15, 1991.'American Correctional Association, Standard 3-4198(Ref 2-4206), Standards for Adult CorrectionalInstitutions, 3d ed., Oanuary 1990).

WINTER 1992 5

/", " " ' ,"

~",*~~rtA PROJECT OF THE AMERICAN CIVIL L1BERTIES'~NION FOUNDATION, INC.VOL. 7, NO.1, WINTER 1992 • ISSN 0748-26.%

1

Highlights of MostImportant CasesState Officials and Agencies

It isn't a prison case, but the SupremeCourt's decision in Hafer v. Melo, 60 U.S. LawWeek 4001 (November 5, 1991), will make abig difference in prisoner damage litigation.In Hafer, the Court clarified some of its recentjurisprudence of "capacity" and of theEleventh Amendment. In doing so, the Courtpreserved the ability of prisoners to recoverdamages for constitutional violationscommitted pursuant to official policy.

The Legacy of WillThe Court's task in Hafer was to clean up

the mess left by some of its own loose talk inWill v. Michigan Dept. ofState Police, 491 U.S.58 (1989). Will held that 42 U.S.C. §1983, theReconstruction Era civil rights statute underwhich most prisoner actions are brought, doesnot permit suits against states, even in statecourts, because they are not "persons" withinthe statute's meaning. And it extended thatholding to state officials "acting in theirofficial capacities," reasoning that an officialcapacity suit is not a suit against the officialbut rather is a suit against the official's office.491 U.S. at 70-71{emphasis supplied).

The use of the word "acting" yielded abumper crop of mischief. Formerly, the word"capacity" had been interpreted to refer onlyto the plaintiff's intent to seek relief againstgovernment officials as individuals or againstthe governmental entities they serve. Damageclaims under §1983 against state officials wereby necessity pled as individual or personalcapacity claims. See Kentucky v. Graham, 473U.S. 159, 165-66 (1985). Will, however,suggested that capacity is not determined byhow the plaintiff pleads, but rather by thenature of the conduct the defendant is allegedto have committed, and how that conduct isrelated to the official's authority and to thepolicies of the government entity thatemploys the official.

6 WINTER 1992

That, in any case, was how several lowercourts saw the matter. The Sixth Circuitdeclared that under Will, "[t]he capacity inwhich the individual defendants were actingis what matters, not the capacity in whichthey were sued...." Rice v. Ohio Dept. ofTransportation, 887 F.2d 716, 719 (6th Cir.1989) (emphasis supplied).

The effect of Will went beyond thedefinition of "person." It also vastly ex­panded the scope of Eleventh Amendmentimmunity. The Eleventh Amendmentactually says only that suits against states bycitizens of other states or countries cannot beheard in the federal courts. However, it haslong been construed to bar official capacitydamage suits against state officials, and courtsthat believed Will broadened the definitionof "official capacity" gave the EleventhAmendment a correspondingly broad sweep.Cowan v. University ofLouisville School OfMedicine, 900 F.2d 936, 942-43 (6th Cir. 1990).

The result in prison cases was to placealleged constitutional violations by staffoutside the reach of §1983 unless they wereunauthorized by or contrary to prison policy.See, e.g., Eckford-El v. Toombs, 760 F.Supp. 1267,1269-70 (W.D.Mich.1991) (damage claim forunjustified seizure of correspondencedismissed because the defendants were"working as employees of" the prison);Galipeau v. Berard, 734 F.Supp. 48, 51 (D.R.I.1990) (officers' acts would not be actionableif they were done pursuant to a prisonregulation); Portee v. Tollison, 753 F.Supp. 184n.4 (D.S.C. 1990) ("prison policy...rather thanany maverick actions" of prison personnelcould not be the basis of a §1983 suit).

The Decision in HaferIn Hafer, the newly elected Auditor

General of Pennsylvania fired severalsubordinates who, she claimed, had obtainedtheir jobs through improper means. Some ofthe employees sued under §1983, alleging thatthe real reason for their discharge was theirDemocratic political affiliation and theirsupport for Hafer's opponent.

Relying on Will v. Michigan Dept. ofStatePolice, Hafer argued that she had fired theemployees in her official capacity and wastherefore not amenable to suit under §1983.

She also argued ttlut she was immune fromsuit under the E~~~enth Amendment. TheThird Circuit rejected her arguments, creatinga square conflict between circuits concerningthe interpretation of Will. See Melo v. Hafer,912 F.2d 628, 634-37 (3rd Cir. 1990).

The Supreme Court resolved this conflict byunanimously rejecting both of Hafer'sarguments, offering a crucial clarification ofWilt "the phrase 'acting in their officialcapacities' is best understood as a reference tothe capacity in which the state officer is sued,not the capacity in which the officer inflictsthe alleged injury. To the extent that Willallows the construction Hafer suggests, wenow eliminate that ambiguity." 60 U.S. LawWeek at 4003.

The Court went on to point out that anyother view would contradict the intent of§1983, since the statute was intended toprOVide redress for officials' abuse of theirauthority. "We cannot accept the novelproposition that this same official authorityinsulates Hafer from suit." [d. Nor was theCourt willing to distinguish between actionswithin and without the scope of the official'sauthority, or between those allegedlyessential to the performance of governmentalfunctions and those that were not soessential. It cited its prior holding that §1983was intended to prOVide liability againstofficials "whether they act in accordancewith their authority or misuse it." [d. at 4003,citing Scheuer v. Rhodes, 416 U.S. 232, 243(1974) (internal quote marks omitted). It alsoobserved that Hafer's position "cannot bereconciled" with the large body of existinglaw concerning official immunity in civilrights cases.

Determining that the claims against Haferwere personal capacity claims removed thechief basis for her Eleventh Amendmentdefense. The Court gave short shrift to whatwas left of her argument, observing only thatit was long established that personal capacitydamage claims were not barred by theAmendment. 60 U.S. Law Week at 4004.

History and the Other ShoeThe Eleventh Amendment and related

capacity issues have been a persistent sourceof controversy and conceptual difficulty.

THE NATIONAL PRISON PROJEG JOURNAL

Even the courts admit that EleventhAmendment jurisprudence makes little sense.See, e.g., Eng v. Coughlin, 858 F.2d 889, 897(2nd Cir. 1988) ("noLa model of logicalsymmetry, but marked rather by a bafflingcomplexity"); Spicer v. Hilton, 618 F.2d 232, 235(3rd Cir. 1980) ("Any step through the lookingglass of the Eleventh Amendment leads to awonderland of judicially created andperpetuated fiction and paradox.")

This should not be surprising, since lastcentury's leading Eleventh Amendment casedeclares that the meaning of the Amendmentis not limited by its narrow language. By itsterms, the Amendment forbids the federalcourts to entertain suits against states bycitizens of other states or foreign countries.However, in Hans v. Louisiana, 134 u.s. 1(1890), the Supreme Court held that theAmendment somehow embodies traditionaldoctrines of sovereign immunity and therebyforbids suits against states by their owncitizens.

Later, the Court realized that Hanseffectively nullified the Reconstruction civilrights statutes and made unenforceable theFourteenth Amendment, which by that timechiefly benefited businesses in their attemptto avoid state regulation. In Exparte Young,209 U.S. 123, 159-60 (1908), therefore, the Courtheld that a state official who violates theConstitution is "stripped of his official orrepresentative character and is subject in hisperson to the consequences of his individualconduct," even if the official is enforcing astate statute. This holding, which is the basisof all modern §1983 jurisprudence, iscommonly known as the "Ex parte Youngfiction."

The next major controversy in this area islikely to involve injunctive actions againststate officials. Again, it will arise from theintersection of Eleventh Amendment doctrineand the definition of capacity.

The above-quoted language from ExparteYoung, which was an injunctive case,indicates that injunctive claims should bebrought against officials in their individual orpersonal capacities. Such was the practice formany years. See, e.g., ACLU ofMississippi v.Finch, 638 F.2d 1336, 1340-42 (5th Cir. 1981)(holding that claims were in personalcapacity for Eleventh Amendment purposesbut in official capacity for purposes ofsubstitution of parties). This practice wasunsettled by more loose talk from theSupreme Court. In Kentucky v. Graham, 473U.S. 159, 167 n.14 (1985), in the course ofadjudicating an attorneys' fees controversyarising from a damage case, the Courtobserved in passing that "offiCial-capacityactions for prospective relief are not treatedas actions against the State" (emphasissupplied), citing but not seriously discussing

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Exparte Young, and ignoring the practice andinterpretation of cases like ACLU v. Finch.This passing reference was reiterated withequal superficiality in Will, 491 U.S. at 71 n. 10.Since Graham, the lower courts havegenerally referred to injunctive claims asofficial capacity claims. See, e.g., Gilbreath'v.Cutter Biological, Inc., 931 F.2d 1320, 1327 (9thCir.1991).

Meanwhile, in another part of the forest,the Supreme Court had stated that offic~al

capacity suits "generally represent only;:another way of pleading an action against anentity of which an officer is an agent."Monell v. New York City Dept. ofSocialServices, 436 U.S. 658, 690 n55 (1978). It saidso in the course of holding in the context oflocal government liability that such suits canbe brought only where "the action that isalleged to be unconstitutional implements orexecutes a policy statement, ordinance,regulation or decision officially adopted andpromulgated by that body's officers." Id. at690; see also Canton v. Harris, 489 U.S. 378(1989) (summarizing development of "officialpolicy" requirement).

Taken together, these cases can be read tosupport the following syllogism:

1. Injunctive claims are necessarilyofficial capacity claims.

2. Official capacity claims require proofthat the challenged conduct resultsfrom official pblicy.

3. Therefore, without such proof ofofficial policy, no injunction can begranted.

That is exactly the conclusion of Griffin v.Fairman, 770 F.Supp. 1271 (N.D.Ill. 1991), inwhich a prisoner sought the return of goodtime and classification grade that he lost inan allegedly unconstitutional disciplinaryproceeding. Since there was no evidence ofan official policy of denying prisoners theirdue process rights, the court held that theplaintiff could not maintain an injunctiveclaim. Accord, Nix v. Norman, 879 F.2d 429,432-33 (8th Cir. 1989) (assuming that anallegation of "state policy" is essential to anofficial capacity injunctive claim against stateofficials); Parsons v. Bourff, 739 F.Supp. 1266,1267 (S.D.Ind. 1989).

This view poses serious problems for prisonand other civil rights jurisprudence, sinceofficial agencies rarely promulgate officialpolicies to violate the Constitution. To take asingle example, it would undermine thedecision in Inmates ofAttica v. Rockefeller,453 F.2d 12 (2nd Cir. 1971), directing injunctiverelief after the rebellion and retaking atAttica in order to protect prisoners againstgauntlet beatings and other retaliatory abusethat clearly was contrary to official policy.As long as these acts were officially discour­aged, however ineffectually, judicial relief

might be unavailable.Common sense and some authority support

the view that the "official policy" reqUire­ment has no application to injunctive casesand that an injunction can be granted againstany person who violates the Constitutionunder color of state or federal law. Chalouxv. Killeen, 886 F.2d 247 (9th Cir. 1986); NobbyLobby, Inc. v. City ofDallas, 767 F.Supp. 801(N.D.Tex. 1991); Schwarz v. Ohio StateUniversity Board of Trustees, 31 Ohio St. 3d267,510 N.E.2d 808, 812-13 (Ohio 1987) (statecourt §1983 acl;ion applying federal law). Butthe Supreme C,ourt's piecemeal approach toissues of capacity by no means forecloses thequestion. We can probably expect moreholdings like that of Griffin v. Fairman, andultimately the necessity of clarification bythe Supreme Court.

REMEDIES/FINANCIAL RESOURCESProblems of long-standing or recurrent

noncompliance with injunctive orders areendemic in prison and jail litigation. Courtshave engaged in many strategems to obtaincompliance in seemingly intractable situa­tions, including further injunctions, appoint­ment of monitors and masters, contemptfindings, and monetary penalties. In Shaw,v.Allen, 771 F.Supp. 760 (S.D.W.Va. 1990), thecourt has gone one step further and ap­pointed a receiver, entirely supplanting theauthority of local officials.

Shaw involves the county jail in McDowellCounty, West Virginia. In 1983, the courtentered an injunctive order to ensureconstitutional conditions of confinement. Inthe face of persistent noncompliance, theplaintiffs moved for contempt in 1985, 1987,and 1988. The court in response orderedinspection of the jail and recommendationsby outside experts; a contempt finding and atemporary population cap; and appointmentof a monitor. Nothing worked, and themonitor reported in 1989, "I hold no hopethat voluntary efforts at compliance willeffect compliance with the 1983 court order."

The plaintiffs moved again for contempt in1990, and the court had had enough. Itappointed as receiver W. Joseph McCoy, aprofessor at Marshall University and a formerstate Commissioner of Corrections, under abroad grant of authority:

...[Tjhe powers Of the receiver to implementthis Order shall be that authority, whichin usual circumstances is vested by law inthe County Commission and the Sheriff ofMcDowell County as such related to theoperation of the McDowell CountyJailand its environs.

The appointment was made for a period ofone year, renewable upon a showing ofcontinued or prospective noncompliance.

Shaw is not the first instance of federal

WINTER 1992 7

court receivership in a jail or prison case. Theentire Alabama prison system was placed inreceivership at one point by a federal court.Newman v. State ofAlabama, 466 F.Supp. 628,635 (M.D.Ala. 1979). But in Newman, the stategovernor was appointed as receiver. Shawappears to be the first reported case in whichlocal authority over jail or prison operationshas been so completely bypassed. There wasapparently a prior receivership [involving thesame receiver] in an unreported case arisingfrom Cabell County, West Virgina in 1981.Shaw, 771 F.Supp. at 764, citing Brown v.Bailey, Civil Action No. 78-3046-H (S.D.W.Va.,June 5, 1981). Other receiverships have beencreated by federal courts in school desegrega­tion and in environmental cases, and by statecourts. Shaw at 762 (citing cases).

Other CasesWorth NotingU.S. COURT OF APPEALS

Work Assignments/Classification­Race

La Bounty v. Adler, 933 F.2d 121 (2nd Cir.1991). A black inmate's allegation of raciallydisparate treatment in program assignmentsand of a history of racially disparatetreatment stated an equal protection claim.

Pre-Trial Detainees/Procedural DueProcess-Transfers

Covino v. Vermont Dept. of Corrections, 933F.2d 128 (2nd Cir. 1991). Apre-trial detaineecomplained that he was transferred toadministrative segregation. The district courtshould have analyzed Vermont statutes andregulations to determine whether a state­created liberty interest existed. Regardless ofthe propriety of the initial transfer, theplaintiff's nine-month confinement "smacksof punishment," and the district court shouldanalyze it undep,.Bell v. WolfiSh.

Class Actions-Effect ofJudgments andPending Litigation/JudicialDisengagement

Picon v. Morris, 933 F.2d 960 (8th Cir. 1991).Aclass action consent decree provided thatcertain "emergency segregation cells" wouldbe used only in limited circumstances forshort periods of time. After three years ofcompliance reports, the defendants claimedthat the cells were no longer used, and thecourt held it was "no longer required to retainjurisdiction" and dismissed "the above cause"with prejudice.

The plaintiff was held in one of the cells inviolation of the consent decree. He amendedhis complaint to allege violation of the decree

8 WINTER 1992

only after the decree had been dismissed. Theplaintiff then filed a Rule 60 motion tovacate the dismissal of the decree, fearingthat res judicata would preclude his §1983action and the dismissal of the decree wouldbar his contempt claim.

Assuming that the district court's dismissalvacated the consent decree, the district courtabused its discretion in denying the motion to:rvacate the dismissal so the plaintiff couldproceed with a contempt action.

Women/Monitoring and Reporting/Contempt/Financial Resources/Attorneys' Fees and Costs

Glover v.johnson, 934 F.2d 703 (6th Cir.1991). The district court long ago foundthat program opportunities for women wereso inadequate as to deny equal protection.The district court later appointed a "specialadministrator" after finding that prisonofficials had not complied with priororders.

The defendants were properly held incontempt under the clear and convincingevidence standard. Although they did notobtain all the cooperation that they wishedfrom outside colleges and educators, theyfailed to explore or attempt alternativesolutions and failed to take all actions thatwere under their control.

The court rejects the argument thatenforcement requires the participation ofother state agencies and the legislature andshould therefore be abandoned. The courtorders are directed at prison officials andrequire parity of programming.

Requiring the defendants to appoint anadministrator to develop a remedial planwas not an abuse of discretion. The courthad determined that expert advice wasrequired, and the record "shows a consistentand persistent pattern of obfuscation, hyper­technical objections, delay, and litigation byexhaustion...to avoid compliance with theletter and spirit of the district court's orders."

ResJudicata and Collateral Estoppel!Prisoners as Staff

McDuffie v. Estelle, 935 F.2d 682 (5th Cir.1991). The Ruiz v. Estelle decision collaterallyestopped Texas prison officials with respectto the constitutionality of the building tendersystem, but not with respect to disciplinarypractices, in a subsequent damage action. At685-86: "[T]hose officials not named asdefendants in Ruiz were nevertheless boundby the injunction as agents and employees ofTDC and Estelle."

Qualified Immunity/Searches­Person-Visitors and Staff

Daugherty v. Campbell, 935 F.2d 780 (6thCir. 1991). Avisual body cavity search of a

prison visitor without "at least reasonablesuspicion" violated clearly established law.The court relies on dicta from a previousSixth Circuit case and on the consensus of thethree other circuits that had ruled on theissue before the incident in question.

Punitive Segregation/SummaryJudgment

Williams v. Adams, 935 F.2d 960 (8th Cir.1991). Allegations that the plaintiff wasplaced in "the hole" for 13 days in a cell witha broken toilet th~ leaked filthy waste ontothe floor stateda~Fonstitutional claim.

Federal Prisons and Officials/Exhaus­tion of Remedies

Terrell v. Brewer, 935 F.2d 1015 (9th Cir.1991). Afederal prisoner seeking bothdamages and injunctive relief cannot bring aBivens action without first exhausting anyavailable administrative remedies. Theproper disposition where remedies have notbeen exhausted is dismissal without prejudice.

Attorneys' Fees and CostsCabrales v. County of Los Angeles, 935 F.2d

1050 (9th Cir. 1991). The plaintiff won averdict of $150,000 in a jail suicide case andprevailed on appeal; the Supreme Courtgranted certiorari and vacated and remanded;the appellate court reinstated its affirmanceand the Supreme Court denied certiorari. Theplaintiff prevailed as to her unsuccessfulopposition to the first certiorari petition. "Ifa plaintiff ultimately wins on a particularclaim, she is entitled to all attorneys' feesreasonably expended in pursuing that claim­even though she may have suffered someadverse rulings." (1053) "[Llosing is part ofwinning." (1053)

Pro Se Litigation/SummaryJudgmentHall v. Bellmon, 935 F.2d 1106 (10th Cir.

1991). At 1109:When the pro se plaintiff is a prisoner, acourt-authorized investigation and reportbyprison Officials (referred to as aMartinez report) is not onlyproper, butmay be necessary to develop a recordsufficient to ascertain whether there areany factual or legal bases for theprisoner's claims.... Telephone evidentiaryhearings before a judge or magistrate mayserve the same purpose as a Martinezreport....Although a court may consider theMartinez report in dismissing a claimpursuant to §1915(d),... it cannot resolvematerial disputed factual issues byaccepting the report's factual findingswhen they are in conflict with pleadingsor affidavits....A bona fide factual disputeexists even when the plaintiff'sfactualallegations that are in conflict with the

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Martinez report are less specific or well­documented than those contained in thereport. Because pro se litigants may beunfamiliar with the requirements tosustain a cause ofaction, they should beprovided an opportunity to controvert thefacts set out in the Martinez report.

At 1ll0:A pro se litigant's pleadings are to becon­strued liberally and held to a lessstringent standard than formal pleadingsdrafted by lawyers. We believe that thisrule means that if the court can reason­ably read the pleadings to state a validclaim on which the plaintiff couldprevai4 it should do so despite theplaintiff'sfailure to cite proper legalauthority, his confusion of various legaltheories, hispoor syntax and sentenceconstruction, or his unfamiliarity withpleading requirements.

Pre-Trial Detainees/Medical Care­Standards of Liability-SeriousMedical Needs

Davis v.jones, 936 F.2d 971 (7th Cir. 1991).At 972:Police must respond to conditions they canobserve. Just as the Constitution does notdemand thatpolice obtain medical carefor prisoners whose injuries appear to beslight but turn out to be serious, so theofficers must obtain medical care whenthe wound reasonably appears to beserious even if the risk turns out to besmall. Police can act only on appearances,'anything else is gambling with anotherperson's life, a wager the Constitution doesnotpermit arresting officers to undertake.Whether the injury is actually serious is aquestion best left to a physician.

Procedural Due Process-Disciplin­ary Proceedings

Ramer v. Kerby, 936 F.2d 1102 (lOth Cir.1991). A policy barring prisoners fromcalling staff.,Jnembers as witnesses denieddue process, which requires an individual­ized determination of the importance ofeach witness's testimony and the interests ofthe institution. An assertion that testimony is"merely cumulative" generally does not justifydenying a witness request "when that inmatefaces a credibility problem trying to disprovethe charges of a prison guard."

The plaintiff was not denied due processwhen his witness request was denied based onhis refusal to submit written questions, aprocedure which is essential for the disciplin­ary committee in determining whether to callthe witness.

Food/Religion-Practices-DietLaFevers v. Saffle, 936 F.2d 1117 (10th Cir.

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1991). The Seventh Day Adventist plaintiff'sreligious belief in vegetarianism was entitledto constitutional protection if sincerely held,even though the religion does not require avegetarian diet. The plaintiff's First Amend­ment claim should not have been dismissed,nor should his equal protection claim based'on the provision of pork-free meals toMuslims.

Defendants justified their refusal to p,rovidea vegetarian diet on medical grounds ansi onthe alleged risk of liability. The plaintitfsubmitted a position paper from the AmericanDietetic Association and a letter from auniversity professor stating that vegetariandiets can be nutritionally adequate. Thedistrict court should not have dismissed thecomplaint as frivolous under the Turnerstandard.

Use of Force/Qualified ImmunityDavis v. Locke, 936 F.2d 1208 (lIth Cir. 1991).

The plaintiff escaped, was recaptured, andalleged that officers dragged him by his feetout of a "dog cage" on the back of a pickuptruck while his hands were shackled, causinghim to land on his head. He presented expertpsychiatric evidence of severe psychologicalinjury and no evidence of physical injury.The jury awarded no compensatory damagesand $1,750 in punitive damages from eachofficer.

The record supports a finding that theofficers violated the Fourteenth Amendment,if not the Eighth. (This holding is contrary tothe Supreme Court's statement in Whitley v.Albers that the Due Process Clause confers onconvicts no greater protection against use offorce than does the Eighth Amendment.)Since the plaintiff had been recaptured, cagedand shackled, he posed no ongOing threats tothe officers. This evidence, combined withthe defendants' threats and racial epithets,supported a finding of punishment throughexcessive force.

The officers were not entitled to qualifiedimmunity because the law in 1984 prohibited"the unjustified use of excessive force by aprison guard against an inmate."

Procedural Due Process-DisciplinaryProceedings, Classification, Transfers,Administrative Segregation

Smith v. Massachusetts Dept. of Correction,936 F.2d 1390 (lst Cir. 1991). Proceduralregulations governing reclassification andtransfer to higher custody did not create aliberty interest because they did not containsubstantive predicates limiting officials'discretion. Aclassification contract phrasedin discretionary terms without limits on thestatutory discretion to transfer also failed tocreate a liberty interest. In any case, theplaintiff's disciplinary record breached the

contract and extinguished any liberty interesthe might have had.

Placement in "awaiting action" status basedon a disciplinary report for rape did not denydue process because the plaintiff received theprocess due under Hewitt and the rape chargemet the substantive predicate of posing athreat to institutional safety.

Prison officials were not entitled tosummary judgment as to their refusal to callthe alleged rape victim to testify where thereason for their refusal was not in the record.

Prison offici\ls were not entitled tosummary jud!WIent as to their unexplainedrefusal to pn:lduce a prison log that wouldallegedly have shown that the alleged rapevictim was inaccessible to the plaintiff on theday of the rape.

Procedural Due Process-DisciplinaryProceedings/Searches-Urinalysis

Kingsley v. Bureau ofPrisons, 937 F.2d 26(2d Cir. 1991). The petitioner was ordered toprovide a urine sample for drug testing butwas unable to do so within three hoursdespite various extreme measures such asapplying ice to his testicles. He was disci­plined for refusing to provide the sample.

The petitioner asked that other inmates •subjected to the test be called as witnesses.Although the prison had a list of them, andthe petitioner did not know any of theirnames because he had just arrived, thehearing officer found that the petitioner hadwaived their presence by failing to identifythem by name. This constituted an arbitraryapplication of the relevant federal regulation,which tracks the constitutional rules forwitnesses. The witnesses' testimony wouldhave been probative of the petitioner'swillingness to supply the sample. Theconviction should be expunged and the lossof 15 days' good time restored unless thepetitioner is given a new and proper hearing.

Attorneys' Fees and Costs/Municipali­ties

Dotson v. Chester, 937 F.2d 920 (4th Cir.1991). The plaintiffs settled a jail conditionscase and fees were allocated between thecounty commissioners and the sheriff. Thesheriff didn't pay. Since under state law thesheriff possessed final policymaking authorityfor the county, and not the state, the countycould be held liable for the remaining fees.The plaintiffs were also entitled to attorneys'fees for time spent in collecting their fees.

Suicide PreventionBell v. Stigers, 937 F.2d 1340 (8th Cir. 1991).

Here is yet another case of a young drunkdriving arrestee who had never been in jailbefore and who hanged himself by his beltafter saying, "Well I think I'll shoot myself."

WINTER 1992 9

The jailer who heard this remark and whoviolated jail rules by not removing thearrestee's belt was not deliberately indifferentbecause he was not aware of a "stronglikelihood" that the decedent would attemptsuicide. At 1344: "A single off-hand commentabout shooting oneself when no gun isavailable cannot reasonably constitute aserious suicide threat." Jail offiCials are notliable for knowledge of a prisoner "suicideprofile." The defendant's conduct wasnegligent at worst.

Religion-Practices-Beards, Hair,Dress

Mosier v. Maynard, 937 F.2d 1521 (10th Cir.1991). The Native American plaintiff wasdenied a religious exemption from a haircutrule under a policy requiring "externalevidence" of his adherence to a "recognized"religion. He had been granted an exemptionat another prison before his transfer.

The fact that the plaintiff was not amember of the Cherokee nation or the NativeAmerican worship group at the prison did notmake his belief insincere. Practice ornonpractice of a particular religious tenetmay be relevant to sincerity but is notconclusive. "Intrafaith differences arecommon and cannot be resolved by secularcourts." (1523) At 1526: in general, "courtscarefully avoid inquiring into the merits ofparticular religious beliefs in an effort togauge sincerity."

This case is distinguished from previouscases upholding hair length limits because theprison is not a temporary detention facilityand because the issue is not the groomingcode but the prison-created exemption policyand its application. The defendants are notentitled to summary judgment.

Class Actions-Effect ofJudgments andPending Litigation/Searches/Access toCourts/Contempt

Welch v. Spangler, 939 F.2d 570 (8th Cir.1991). Aconsent decree provides that legalpapers will not be searched outside theinmate's presence without consent. Thedistrict court's finding that the decree wasviolated is upheld. Regardless of whether aconsent decree may be enforced under §1983,the plaintiff could pursue a contempt claim.At 572: "If the court lacked the power to holdparties in contempt, consent decrees would berobbed of much of their legal significance,and the purpose for which the decree wasentered would be undermined."

The court properly imposed a $500 fine.The court properly imposed $10 in "nominal"damages. No injury need be proven tosupport nominal damages. The award"personalizes the remedy" and helps ensurefuture compliance.

10 WINTER 1992

Use of Force/Qualified ImmunityFelix v. McCarthy, 939 F.2d 699 (9th Cir. 1991).

Correctional officers were not entitled toqualified immunity in a use of force case inwhich it was alleged that one officer "used hisposition of authority intentionally andgratUitously to degrade [the plaintiffs] dignity" 5and "threw him across a hallway and against awal~ causing bruising, soreness, and emotional .,(,damage," and two officers then "pushed him yetanother time" (701), all without provocation. l~

was clearly established by 1985 that use of thiS!sort of force without justification was unconsti­tutional. Cases excusing the infliction of such''minor'' injuries involved real or perceivedsecurity threats. At 702: "[I]t is not the degree ofinjury which makes out a violation of the eighthamendment. Rather, it is the use of official forceor authority that is 'intentional, unjustified,brutal and offensive to human dignity.'''

Unsentenced Prisoners and ConvictsHeld in Jails/Crowding

Williams v. McKeithen, 939 F.2d 1100 (5thCir. 1991). In 1977, a population limit wasimposed on the state prison at Angola.Subsequently, all pending and future actionsinvolving crowding in any state prison orparishjail were ordered consolidated.Population caps were entered in 1982governing all parish jails in the state.

The district court ordered that all prisonersheld in any jail by agreement with theDistrict of Columbia be removed and noadditional prisoners from the Immigrationand Naturalization Service be admittedwithout court approval. This was done suasponte in response to news about one sheriff'scontract with the District of Columbia, withno notice to any other sheriff or to theDistrict; most of the sheriffs filed motions tovacate, which were denied, and the injunctionwas reissued with the District added as aparty and with fines of $10,000 a day perunauthorized prisoner imposed.

The district court's actions were improperunder the All Writs Act, since they reqUired"substantial, uncompensated change inappellants' existing operations" and did nothave a close nexus to an underlying order.There was no evidence that any state prisonerhad been denied admission to a jail or thatany consent decree had been violated. Therewas no actual case or controversy before thecourt. Even if the injunction was otherwiseproper, the notice requirements of the FederalRules were violated.

DISTRICT COURTS

Correspondence-Legal and Official/Access to Courts

Chinchello v. Fenton, 763 F.Supp. 793

(M.D.Pa. 1991). An allegation that thedefendant intercepted and read a prisoner'sletter to an attorney stated a First Amend­ment claim, even though the letter wasultimately delivered. It also stated a violationof the right to court access, but only theprisoner, and not the attorney or hisemployer, the LeWisburg Prison Project, hadstanding to assert this right. The failure toprovide minimum procedural safeguardsstated a claim for denial of due process.

At 795: "[A] private individual who acts inconcert with fedeJ\l1 officials may be heldliable for violating'a party's constitutionalrights." The defendant was a former wardenof LeWisburg; he used the letter in a meetingwith a private organization to dissuade themfrom funding the Lewisburg Prison Project.

Procedural Due Process-DisciplinaryProceedings/SummaryJudgment/Qualified Immunity

Richardson v. Coughlin, 763 F.Supp. 1228(S.D.N.Y. 1991). Officers seized a petition andother written materials from the plaintiff'scell and charged him with violating rulesagainst "sit-ins, lock-ins or other actionswhich may be detrimental to the order of thefacility" and against "conduct which disturbs <

the order of the facility." The hearing officerfound him guilty, writing that "the acquisi­tion of signatures without the expressedauthorization of departmental officials isprohibited." There was in fact no rulerequiring prior approval before collectingsignatures on a petition.

The plaintiff is granted summary judgmenton the ground that punishment for violatinga nonexistent rule denies due process. Thehearing officer was not entitled to qualifiedimmunity as to the lack of notice claim, butwas entitled to qualified immunity to theextent that his action was based on thelanguage of the petition.

The defendants were entitled to qualifiedimmunity on the plaintiff's First Amendmentclaim because the plaintiff cited no case thatas of 1987 barred prison offiCials fromregulating the circulation of a petition withlanguage like this one.

Defendants were not entitled to summaryjudgment on plaintiff's damage claim for atransfer that arguably resulted from theunconstitutional disciplinary hearing.

Protection from Inmate Assault/Qualified Immunity

McNeal v. Macht, 763 F.Supp. 1458 (E.D. Wis.1991). Two officers who were present whenthe plaintiff was assaulted and allegedlyfailed to intervene could be found deliber­ately indifferent. They were not entitled toqualified immunity because the right to befree of deliberate indifference by staff when

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attacked by another inmate has beenestablished for some time.

Modification ofJudgmentsNational Law Center on Homelessness and

Poverty v. United States Veterans Administra­tion, 765 F.Supp. I (D.D.C. 1991). At 6:

A court has the authority to issue furtherorders to enforce its prior injunction..../nmaking such a decision, a court may takeinto account the compliance with thecourt's previous orders and the needfor afurther order to prevent "inadequatecompliance" in the future....As with theinitial injunction, however, an ordergrantingfurther injunctive relief mustalso be "narrowly tailored to remedy thespecific harm shown...."

RehabilitationMace v. Amestoy, 765 F.Supp. 847 (D.Vt.

1991). The plaintiff was convicted of lewdand lascivious conduct with his stepdaughter,not including sexual intercourse. He wasgranted probation on condition that hecomplete a treatment program requiring thathe take responsibility for all his sexualconduct. The program personnel thendemanded that he admit sexual intercoursewith the stepdaughter, and his probation wasrevoked after he refused to do so.

At 850: "Even where a person is imprisonedor on probation, if the state compels him tomake incriminating statements that could beused in a prosecution against him for a crimeother than for which he has been convicted,his Fifth Amendment rights have beenviolated." This is the case even whenprosecution is "unlikely." The state has theburden of eliminating the threat of incrimi­nation.

Use of ForceThomas v. Frederick, 766 F.Supp. 540

(W.D.La. 1991). The sheriff is found liable in ause of force case based on the absence of"even the mQ§t rudimentary procedure forinvestigating or documenting incidents ofpolice brutality" and his "turn[ing] a blindeye" to such allegations. (551) The sheriff'sliability is premised in part on his "dutyunder state law to supervise his deputies inall aspects of their performance, includingthe manner in which they observed, orfailed to observe, constitutional standardsin carrying out their duties." (555) Thesheriff is found liable in both official andindividual capacities.

Standing/Racial Discrimination/Transfers/Personal Involvementand Supervisory Liability

Martin v. Lane, 766 F.Supp. 641 (N.D.Ill.1991). The prisoner plaintiff lacked

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standing to complain of alleged racialdiscrimination in the hiring and promotionof blacks in the Department of Correctionsand in the failure to deposit funds, includinginmate funds, in minority-owned banks.

Aclaim that the plaintiff was transferredin retaliation for his lawsuit, supported byta disputed chronology from which retalia·"tion could be inferred, raised a genUineissue of material fact.

An allegation that the warden ordered thelockdown and the departmental directoi;approved it sufficiently alleged their personalinvolvement in the resulting deprivations.

Financial ResourcesKroll v. St. Charles County, Mo., 766 F.Supp.

744 (E.D.Mo. 1991). Aconsent decree resolvedclaims of discrimination against the handi­capped in public buildings. Abond issue topay for renovations was voted down. Thecourt "orders and adjudges" that it will"consider" imposing a property tax increase ifthe county fails to come up with the funding,and that a statutory rollback of local taxes"may" be enjoined.

Pre-Trial Detainees/Use of ForceFrohmader v. Wayne, 766 F.Supp. 909

(D.Colo. 1991). Force used during the jailbooking process is governed by a substantivedue process standard, here presented as amodified version of the Johnson v. Glickstandard. The district court grants summaryjudgment to the defendant despite theplaintiff's allegations that he was "hit,""kicked," "beaten" and "tortured all nightlong," on the ground that these are"conclusory."

Crowding/Modification ofJudgmentsArney v. Finney, 766 F.Supp. 934 (D.Kan.

1991). Res judicata does not prevent themodification of an injunction. The courtanalogizes prison cases to school desegregationcases, citing Dowell The court cites the needfor flexibility even though the partiesincorporated the "grievous wrong" standard inthe consent judgment.

The court denies without a hearing therequest to double cell in certain units basedon construction delays. Even though thedefendants worked in good faith to comply,"such good faith cannot excuse noncompli­ance with a long-established requirementwhich the court believes is at the heart ofthis litigation." (938) The need for the spaceis not clear and population control measures,also required by the order, are designed todeal with a possible population increase. Also,the system has medium security bedsoccupied by minimum security inmates whocould be transferred. Even if some inmateshad to be released temporarily, "we have no

evidence that a substantial danger to societywould be created by such a release." (938)

The court offers the defendants a hearingon their request to modify the prohibition onhousing inmates in certain units. If condi­tions are now "clearly within constitutionalnorms," there is no reason to keep themclosed, and short-term housing in them maynot undermine the purposes of the order.

The court grants an increase in operatingcapacity at a prison that was not the focus ofthe litigation and where the court has noreason to fear t\1at unconstitutional condi­tions will resu~i

Searches-Person-Prisoners/Use ofForce/Qualified Immunity/Cruel andUnusual Punishment/Privacy

Valdez v. Farmon, 766 F.Supp. 1529 (E.D.Cal.1991). The pregnant plaintiff refused astrip search incident to a transfer; eventu­ally, an officer shot her in the abdomenwith a taser gun. She lost the child andwas thought to have suffered an "incom­plete abortion." The plaintiff alleged thatshe had been ordered to strip with malespresent.

Defendants are entitled to summaryjudgment on the Fourth Amendment claim.Under Graham v. Connor, the FourthAmendment does not protect convictedprisoners, and in this case there was noactual search, but force used in connectionwith the threat of a search. At 1534: "Allof plaintiff's allegations...are directed at themeans by which the search was under­taken, not the propriety of the searchitself." The court also thinks that present­ing the claim to the jury under the Graham"objective reasonableness" test and theWhitley "obdurate or wanton" standardwould not make sense. However, theplaintiff may present evidence that herrefusal to submit to the search was a"justifiable assertion of her Fourth Amend­ment rights." At 1535:

Force used to compelprisoners to complywith orders violative of those rights maywell be found excessive. In other words, aprisoner can invoke a clearly existingconstitutional right, and say "no" to prisonofficials who are unjustifiably about toinfringe on that right, withoutfear thatforce can be used with impunity in anyevent to compel her to give up that clearlyestablished right.

It was clearly established in 1988 thatroutine unclothed searches by members ofthe opposite sex...or unnecessary viewing ofa prisoner's unclothed body by correc­tional officers of the opposite sex, violateda prisoner's right to privacy or right to befree from unreasonable search andseizures....However, casual observances of

WINTER 1992 11

unclothed prisoners by correctionalofficers of the opposite sex, or body cavitysearches in emergency conditions, do notnecessarily violate a prisoner's constitu­tional rights.

Procedural Due Process-DisciplinaryProceedings

Howard v. Wilkerson, 768 F.Supp. 1002(S.D.N.Y. 1991). At 1008: "No disciplinaryhearing officer could have reasonablybelieved that merely accepting the writtenreport of an officer not present at an allegedattack met the requirements of due process.Indeed if this were enough there would be nopurpose in holding a hearing at all." The caseturned on whether the plaintiff was properlyidentified as the assailant; the victim hadidentified him from a photograph. The courtanalogizes the victim's allegation to anaccusation by a confidential informant andholds that it is clearly established that "ahearing officer's failure to assess thecredibility of hearsay information relating toinmate misbehavior constituted a violation ofdue process." (1008) The court notes that theaccuser in this case had a long psychiatric

history and had made inconsistent statementsabout identifying his attackers. It concludesthat under these circumstances there is not"some evidence" to support the conviction.Summary judgment is granted to the plaintiff.

The hearing officer in a prison disciplinaryproceeding claimed that he had moreevidence than the written material beforehim, Le., oral reports, but Woiffrequires awritten statement of evidence relied on.Summary judgment is granted to the plaintiffon the inadequacy of the written record. .' 0.

Modification ofJudgments/FinancialResources

Lorain NAACP v. Lorain Board ofEduca­tion, 768 F.Supp. 1224 (N.D.Ohio 1991). The"less stringent" standard of consent decreemodification is applied in plaintiffs' favor,since "a better appreciation of the facts inlight of experience" indicates that theproposed desegregation plan was much moreexpensive than contemplated. The state istherefore ordered to pay more.

Access to Courts-Punishment andRetaliation

Pratt v. Rowland, 769 F.Supp. 1128 (N.D.Cal.1991). The plaintiff complained of disciplinaryactions and other forms of harassment allegedlyin retaliation for his former affiliation with theBlack Panther Party and his attempts to exposehis conviction as a frame-up.

'; The plaintiff is permitted to file a-, supplemental complaint adding new parties

and recounting further incidents of retalia­tory action after the date of the initialcomplaint.

Allegations of verbal abuse, false charges,placement in segregation, etc., may not beactionable in themselves, but are so whendone in retaliation for the exercise ofprotected rights. At 1135: "...[I]f the Court wereto find that plaintiff had been improperlyclaSSified and incarcerated in a maximumsecurity facility out of retaliation for hisexercise of his First Amendment rights, itwould be within the Court's equitable powersto correct this situation." •

John Boston is the director oj thePrisoners'Rights Project Legal Aid Societyoj New York. He regularly contributes thiscolumn to the NPPJOURNAL.

12 WINTER 1992 THE NATIONAL PRISON PROJECT JOURNAL

Status Report: State Prisons andthe Courts-January 1, 1992

Forty states plus the District ofColumbia, Puerto Rico and theVirgin Islands are under court

order or consent decree to limitpopulation and/or improve conditionsin either the entire state system or itsmajor facilities. Thirty-two jurisdic­tions are under court order forovercrowding or conditions in at leastone of their major prison facilities,while 11 jurisdictions are under courtorder covering their entire system.Only five states have never beeninvolved in major litigation challeng­ing overcrowding or conditions intheir prisons. The following list givesthe current status of each state.(.Asterisks indicate states/jurisdictionswhere the ACLU has been involved inthe litigation.)

1. Alabama:' The entire state prisonsystem was under court order dealingwith total conditions and overcrowd­ing. Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala. 1976), a/I'd in substance sub nom.Newman v. Alabama, 559 F.2d 283 (5thCir. 1977), cert. denied, sub nom.Alabama v. Pugh, 438 U.S. 781 (1978). Areceiver was appointed. 466 F.Supp. 628(M.D. Ala. 1979). On January 13, 1983,the district court entered an orderestablishing a four-person committeeto monitor compliance with previousorders. In December 1984, the districtcourt relinquished active supervisionafter the parties agreed that substan­tial compliance had been achieved. Thecourt dismissed the case in December1988. ...

2. Alaska:' The entire state prisonsystem is under a consent decree and acourt order entered in 1990 dealingwith overcrowding and total condi­tions of confinement. Cleary v. Smith,No. 3AN-81-5274 (Superior Court for theState of Alaska, 3rd Jud.Dist.; complaintfiled March 3, 1986). The parties agreedto population caps at each facility anda mechanism to reduce the populationwhen a cap is exceeded. This mecha­nism will remain in effect until thestate legislature approves an emer­gency overcrowding reduction statute.

3. Arizona:' The state penitentiary isoperating under a series of court orders

THE NATIONAL PRISON PROJEG JOURNAL

and consent decrees dealing withovercrowding, classification, and otherconditions. Orders, August 1977-1979;Harris v. Cardwell, C.A. No. 75-185 ,'c

PHXCAM (D. Ariz.). .',-Aspecial administrative segregation

unit at the Arizona State Prison inFlorence was operating under aDecember 12, 1985 consent decree. Amonitor was appointed. Black v.Ricketts, C.A. No. 84-111 PHXCAM. Theunit was later found to be in fullcompliance with the consent decreeand Black was dismissed in February1988.Astate-wide class action, filed on

behalf of Arizona state prisoners onJanuary 12, 1990, challenges legalaccess, health care, and discriminationagainst handicapped prisoners. Casey v.Lewis, CIV-90-0054 PHXCAM. Partialsummary judgment for plaintiffs wasentered in August 1991 enjoiningdiscrimination against HIV-positiveprisoners in job assignments. Trialbegan on November 20, 1991 on allother issues.

4. Arkansas:' The entire state prisonsystem was under court order dealingwith total conditions. Finney v.Arkansas Board 0/ Corrections, 505F.2d 194 (8th Cir. 1974). Aspecialmaster was appointed. Finney v. Mabry,458 F.Supp. 720 (E.D. Ark. 1978).Compliance was assessed in 1982. 534F.Supp. 1026 (E.D. Ark. 1982); 546 F.Supp.626 (E.D. Ark. 1982). After a finding offull compliance, the federal courtrelinquished jurisdiction in August1982.546 F.Supp. 628 (E.D. Ark. 1982).

5. California:' The administrativesegregation units at San Quentin,Folsom, Soledad and Deuel are undercourt order because of overcrowdingand conditions. Apreliminary injunc­tion was entered. Toussaint v. Rushen,553 F.Supp. 1365 (N.D. Cal. 1983), a/I'din part sub nom. Toussaint v. Yockey,722 F.2d 1490 (9th Cir. 1984). Thedistrict court thereafter entered apermanent order enjoining double­celling and other conditions at the SanQuentin and Folsom units. Toussaint v.McCarthy, 597 F.Supp. 1388 (N.D. Cal.1984). Alater opinion reversed on theissue of placement and retention in

administrative segregation. 801 F.2d1080 (9th Cir. 1986), cert. denied, 481U.S. 1069 (1987). A monitor is oversee­ing compliance. Toussaint v. Rowland,711 F.Supp. 536 (N.D. Cal. 1989).The California Men's Colony at San

Luis Obispo is under a court orderestablishing population limits. Dohnerv. McCarthy, 635 F.Supp. 408 (C.D. Cal.1985). However, compliance monitoringhas ceased.The California Institution for Men at

Chino is oper~ing under a settlementagreement proyiding for improvedsanitation, classification, legal accessand other conditions. Compliance isbeing monitored. Boyden v. Rowland,CV-86-1989-HLH.The California Medical Facility at

Vacaville is under a 1990 consentdecree concerning the delivery ofhealth care services. Compliance isbeing monitored. Gates v. Deukmejian,#S-87-1636-LKK-JFM.Two lawsuits are pending concerning

the delivery of medical and mentalhealth service to prisoners at theCalifornia Women's Institution atFrontera. Doe v. Rowland, ACiv. 89­598-GLT (C.D. CaL), and Whisman v.McCarthy, #OCV-33860 (Sup. Ct., SanBernadino Co.).

6. Colorado:' The state maximumsecurity penitentiary at Canon City isunder court order on total conditionsand overcrowding. Ramos v. Lamm,485 F.Supp. 122 (D. Colo. 1979), a//'d inpart and remanded, 639 F.2d 559 (10thCir. 1980), cert. denied, 450 U.S. 1041(1981), on remand, 520 F.Supp. 1059 (D.Colo. 1981). During the compliancestage, the parties reached a series ofagreements later approved by the courtconcerning general conditions as wellas specific areas such as legal accessand double-bunking.A lawsuit filed on February 27, 1990

challenges conditions and delivery ofhealth care services at three othermajor state facilities (Buena Vista,Fremont and the women's prison).Nolasco v. Romer, 90-C-340 (D. Colo.).During 1991, the parties discussedsettlement in both Ramos and Nolasco.

7. Connecticnt:' The HartfordCorrectional Center is under courtorder dealing with overcrowding andsome conditions. Lareau v. Manson, 507F.Supp. 1177 (D. Conn. 1980), a/l'd,651F.2d 96 (2nd Cir. 1981).Other facilities under consent decree

are: Bridgeport Correctional Center,Mawhinney v. Manson, #B78-251 (D.Conn. 1982); New Haven Correctional

WINTER 1992 13

As a result of crowding pressures, more prisons aredouble-ceiling prisoners. However, in some institutions,courts have prohibited this practice as part of a courtorder or consent decree.

Center, Andrews v. Manson, #N81-20 (D.Conn. 1982); the Morgan Street Correc­tional Center, and the Union AvenueCorrectional Center.Litigation challenging overcrowding

is pending at the state prison atSomers, Bartkus v. Manson, Civ. No. H­80-506, and at the Montville Correc­tional Center, Foss v. Lopes. NianticWomen's Prison is under a court orderon a full range of women's prisonissues. West v. Manson, #H-83-366 (D.Conn., entered October 3, 1984).Compliance is being monitored in thesecases.

8. Delaware:" All major Delawareprisons are under a consent decreefiled in state court on issues ofovercrowding, physical plant, medicalcare, and access to the courts.Dickerson v. Castle, C.A. No. 10256 (Del.Ct. Chan., entered November 22, 1988).Compliance is being monitored.

9. Florida: The entire state prisonsystem is under court order dealingwith overcrowding. Costello v. Wain­wright, 397 F.Supp. 20 (M.D. Fla. 1975),afl'd, 525 F.2d 1239 (5th Cir. 1977) and553 F.2d 506 (5th Cir. 1977). In 1980, thecourt entered a consent decree provid­ing measures for population control.489 F.Supp. 1100 (M.D. Fla. 1980). Aspecial master was appointed. Addi­tional consent decrees were enteredcovering environmental health andsafety. Also, a consent decree wasentered on December 17, 1987 concern­ing health care services to be deliveredby a private provider. The specialmaster is also monitoring this order.During 1991, the parties negotiated toend court supervision of the healthcare order by turning over monitoringand enforcement to the CorrectionalMedical Authority, a newly establishedindependent state agency.

10. Georgia: T...he state penitentiary atReidsville is under court order on totalconditions and overcrowding. Aspecialmaster was appointed in 1979, anddismissed in 1983. Guthrie v. Evans, C.A.No. 3068 (S.D. Ga.). The case was closedin 1983, but the injunction remains ineffect. The order requires single-celling,improvements in the medical andmental health care delivery system,and improvements in environmentalhealth, among other things. A numberof other state facilities have comeunder challenge.

11. Hawaii:" The men's prison(O.C.C.C.) in Honolulu and the women'sprison on Oahu are under court orderas a result of a 1985 consent decree

entered in a totality of conditions suit.Spear v. Ariyoshi, Civ. No. 84-1104 (D.Hawaii). Monitors were appointed andcontinue to assess compliance with thecourt decree. The parties have beenengaged in further negotiations with aview toward modifying the decree tomore accurately reflect currentconditions.

12. Idaho:" The men'sIdaho Correctional StateInstitution is under a courtorder concerning conditions.Balla v. Idaho State Bd. ofCorrection, 595 F.Supp. 1558(D. Idaho 1984). In 1987,incident to Balla, thedistrict court held that theprison was unconstitution­ally overcrowded andordered population reduc­tions. 656 F.Supp. 1108 (D.Idaho 1987). The court ofappeals upheld the districtcourt decision rejectingdefendants' attempt toobtain more time to reducethe population, among otherthings. 869 F.2d 461 (9thCir.1989).The women's prison is

operating under an interimagreement signed in July1991 concerning conditions,including overcrowding andmedical care, which willremain in effect until theDOC opens a new facility inthe summer of 1992. Witkev. Crowl, Civ. No. 82-3078 (D.Idaho). Once this newfacility is operational, theprevious agreementsreached in this case in 1991concerning programming,delivery of medical care,and legal access willbecome operative.

13. Illinois:" The statepenitentiary at Menard is under courtorder on total conditions and over­crowding. Aspecial master, appointedin 1980, was discharged after fouryears. There has been substantialcompliance with the decree; however,the injunction remains in force.Lightfoot v. Walker, 486 F.Supp. 504(S.D. IlL 1980).Dwight Correctional Center is under a

May 1990 consent decree whichrequires programs for women prisonersand the construction of a 200-bedminimum security facility for women.Moorhead v. Lane, #86-C-2020 (C.D. IlL).

The Stateville facility is under aDecember 1990 consent decree, enteredby the district court, which providesfor improved protection from assault.Calvin R. v. Peters, #82C1955 (N.D. IlL).The district court ordered that protec­tive custody prisoners at the Statevillefacility be provided with improved

programming, conditions and legalassistance. Williams v. Lane, 646F.Supp. 1379 (N.D. IlL 1986). The courtof appeals affirmed this decision. 851F.2d 867 (7th Cir. 1988), cert. denied,109 S.Ct. 879 (1989).

14. Indiana:" The state prison atPendleton was found unconstitutionalon total conditions and overcrowding.French v. Owens, 538 F.Supp. 910 (S.D.Ind. 1982), afl'd in pertinent part, 777F.2d 1250 (7th Cir. 1985), cert. denied,479 U.S. 817 (1986).The state penitentiary at Michigan

City is under a court order on over-

14 WINTER 1992 THE NATIONAL PRISON PROJECT JOURNAL

crowding and other conditions.Hendrix v. Faulkner, 525 F.Supp. 435(W.D. Ind. 1981), a/I'd sub nom.Wellman v. Faulkner, 715 F.2d 269 (7thCir. 1983), cert. denied, 468 U.S. 1217(l984).The state prison at Westville is under

a consent decree on overcrowding,

conditions and delivery of mentalhealth services. Anderson v. Orr, C.A.No. S83-0481 (N.D. Ind., case filed in1983). Acomprehensive settlement wasreached March 31, 1989. Compliance isbeing monitored.In June 1990, a case was filed

challenging conditions and delivery ofhealth care services to prisonersconfined at Indiana's reception andclassification facility. Lecclier v. Bayh,IP90-1460-c (S.D. Ind.). After conduct­ing discovery, the parties reached acomprehensive settlement. Aconsentorder was entered on July 5, 1991Compliance is being monitored.

15. Iowa: The Iowa State Peniten­tiary at Fort Madison is under courtorder on overcrowding and a variety

THE NATIONAL PRISON PROJECT JOURNAL

of conditions; however, this decree isnot being actively monitored forcompliance. Watson v. Ray, C.A. No. 78­106-01, 90 F.R.D. 143 (S.D. Iowa 1981).

Fort Madison is also under a series ofconsent decrees involving the deliveryof medical care services, McBride v. "Ray, #73-242-2 (S.D. Iowa) and segrega-"

tion and protective custod;ypractices, Gavin v. Ray, ;#78-62-2 (S.D. Iowa) and,Parrott v. Ray, and thes¢cases are being activelymonitored.

16. Kansas: Aconsentdecree on total conditionswas entered in 1980 at thestate penitentiary atLansing. Arney v. Bennett,No. 77-3132 (D. Kan.). Thecase was reopened andexpanded in 1988, and amore comprehensive orderwas entered in April 1989.That order requires thestate's oldest facilities tomeet and maintain stan­dards of the AmericanCorrectional Association(ACA) and the NationalCommission on CorrectionalHealth Care (NCCHC); thecapacities of all othp.r

_ existing or new facilitiesemust meet ACA standards. A8 panel of experts is monitor­ling mental health treat-l ment. In 1991 the defen-:; dants moved for modifica­:t:. tion of the consent decree~ to permit double-ceIling

-;g and to increase operatingai capacity because of con-~ struction delays. The court

denied modification in twoprisons which were the focus of thiscase and granted it in other institu­tions, but only where ACA standardsand other limitations are met. Arney v.Finney, 766 F.Supp. 934 (D. Kan. 1991).

17. Kentucky:' The Kentucky StatePenitentiary at Eddyville is under courtorder by virtue of a consent decree onovercrowding and some conditions,including guard brutality. Kendrick v.Bland, 541 F.Supp. 21 (W.D. Ky. 1981).The court of appeals later vacated somerequirements of the order related to thebrutality issue. 740 F.2d 432 (6th Cir.1984). The district court found KSP insubstantial compliance with theconsent decree, with the exception ofthe new construction requirements. Asa result, the case was placed on the

inactive docket of the court, a decisionaffirmed by the court of appeals. 931F.2d 421 (6th Cir. 1991). However, thecourt held that the district court couldreinstate the case if plaintiffs couldprove "a major violation" of the decree.The women's prison, KCIW at Pee Wee

Valley, is under court order on avariety of conditions, includingcrowding, physical plant, sanitation,access to the courts, programming,classification and work. Canterino v.Wilson, 546 F~upp. 174 (W.D. Ky. 1982),and 564 F.Sup'p. 711 (W.D. Ky. 1983). Thedistrict courts order concerning workand study release was vacated by thecourt of appeals. 869 F.2d 1948 (6th Cir.1989).

18. Louisiana: The Louisiana StatePrison (Angola) is under court orderdealing with overcrowding and avariety of conditions. Williams v.Edwards, 547 F.2d 1206 (5th Cir. 1977).In 1981, the court of appeals consoli­dated all prison and jail overcrowdingcases in Louisiana before one districtcourt judge. This decision includedWilliams. Hamilton v. Morial, 644 F.2d351 (5th Cir. 1981). On December 7, 1983,the district judge who was appointedunder Hamilton approved a consentdecree dealing with crowding andpopulation problems at Angola. In1989, the judge declared a state ofemergency, appointed a court expertand requested that the U.S. Departmentof Justice investigate. The JusticeDepartment is conducting an investiga­tion.

19. Maine:' The State Prison atThomaston was challenged on over­crowding and a variety of conditionsin 1978. The trial court granted reliefon the issue of restraint cells andotherwise dismissed the complaint.Lovell v. Brennan, 566 F.Supp. 672 (D.Me. 1983), a/I'd, 728 F.2d 560 (lst Cir.1984).In October 1990, a lawsuit was filed

against the state prison at Thomastonconcerning conditions, treatment andplacement in the protective custodyand administrative segregation units.Brown v. McKernan, #90-246-p. InMarch 1991, the parties reached anagreement to end double-ceIling inthose units and to enhance program­ming opportunities.

20. Maryland:' The Maryland Houseof Corrections at Jessup and theBaltimore Penitentiary were declaredunconstitutionally overcrowded in,respectively, Johnson v. Levine, 450F.Supp. 648 (D. Md. 1978), and Nelson v.

WINTER 1992 15

•

Collins, 455 F.Supp. 727 (D. Md. 1978), quently, a special administrator wasafl'd sub nom. johnson v. Levine, 588 appointed, and a compliance plan wasF.2d 1378 (4th Cir. 1978), on remand, ordered to be submitted on NovemberNos. H-77-113 and B-77-116, (D. Md. 22,1991.January 5, 1981), rev. and remanded Four men's prisons (Marquette,sub nom. Nelson v. Collins, 659 F.2d 420 Michigan Reformatory, Riverside and a(4th Cir. 1981) (en bane). A settlement portion of Jackson) are under consent':!'agreement and consent decree were decree on overcrowding and other ,,;,subsequently entered in both cases. conditions. u.s. v. Michigan, 680 F.SupP1

In a case against the Maryland 928 (W.D. Mich. 1987). Court orders in <

Correctional Institution at Hagerstown, another case, Knop v.johnson, cover>the district court approved a settle- issues not included in the consent ':ment agreement in 1979 which , decree in u.s. v. Michigan. Knop v.required that double-celling be elimi- johnson, 685 F.Supp. 636 (W.D. Mich.nated and certain conditions improved. 1988). Knop is currently on appeal.Washington v. Keller, 479 F.Supp. 569 The Central Complex and most of the(D. Md. 1979). Later the Washington North Complex at the Jackson stateand johnson cases were consolidated prison are operating under a consentand further agreements were entered decree. Hadix v. Milliken, #80-73581in October 1987 and February 1988. (E.D. Mich.; order entered May 13, 1981).Compliance is being monitored. Among other issues, the decree requiresContempt motions filed in these cases improved health care delivery, sanita-have been resolved by negotiation. tion, out-of-cell activity and staff

21. Massachusetts: The maximum supervision. Another order in Hadixsecurity unit at the state prison in requires defendants to subdivide theWalpole was challenged on total enormous Jackson Prison into moreconditions. Blake v. Hall, C.A. 78-3051-T workable units. Compliance is being(D. Mass.). The district court decided in monitored. Finally, a court order whichprison officials' favor. On appeal, this requires improved legal assistance isdecision was affirmed in part and pending on appeal. Hadix v.johnson,reversed in part and remanded, 668 694 F.Supp. 259 (KD. Mich. 1988).F.2d 52 (1st Cir. 1981). 23. Minnesota: The state has keptA case filed in state court challenged overcrowding in- abeyance through use·

unlawful conditions, use of force and of sentetIciHg,"cg;ui'd~w·hiClJ,;,t,a.lre;':

classification practices in DOC segrega- the number of available prison bedstion units statewide. After months of into account. Also, individual facilitiestrial before one justice, the state and the Department of CorrectionsSupreme Court ruled in the prisoners' have been responSive to complaintsfavor; compliance is being monitored. raised by advocates for prisoners.Hoffer v. Fair, #85-71 (Sup. Jud. Ct. for 24. Mississippi: The entire stateSuffolk Co.). A case filed against MCI at prison system is under court orderConcord successfully challenged dealing with overcrowding and totalnumerous unlawful conditions, conditions. Gates v. Collier, 501 F.2dincluding the use of dayrooms for 1291 (5th Cir. 1974). Compliance is nothousing prisoners. The practices have being monitored.ceased and the state has settled for 25. Missouri:' The State Penitentiarymoney damages. jacobs v. Fair, #86- at Jefferson City is under court order81758 (Superior Ct., Suffolk Co.). on overcrowding, medical care and

22. Michigan:' The women's prison is other conditions. Burks v. Walsh, 461under a court order concerning the F.Supp. 454 (W.D. Mo. 1978), afl'd subtotal conditions of confinement nom. Burks v. Teasdale, 603 F.2d 59including programming. Glover v. (8th Cir. 1979). On remand, the statejohnson, 478 F.Supp. 1075 (KD. Mich. was held liable for failing to provide1979); further orders entered, 510 '''adequate medical Cate.Burks v.F.Supp. 1019 (KD. Mich. 1981). Later, the._ Teasdale, 492,F.supp. 650 (W.D. Mo.Department of Corrections was found 1980). In 1982, a separate order wasin contempt. 659 F.Supp. 621 (KD. Mich. entered on the medical care issues.1987), vac. and remanded, 855 F.2d 277 26. Montana: No conditions lawsuits(6th Cir. 1988). On remand, the state have been filed. Montana's prisonwas required to appoint a special population has been small. However,administrator to design and implement the prison population has beena remedy for violations of the order. increasing and problems have been .721 F.Supp. 808 (E.D. Mich. 1989), afl'd, occurring in the system. A major riot934 F.2d 703 (6th Cir. 1991). Subse- occurred at the Deer Lodge prison in

16 WINTER 1992

September 1991. The women's prison inWarm Springs has severe problemswith respect to environmental healthand sanitation, the delivery of healthcare and a dearth of programming. Thestate plans to build a new facility.

27. Nebraska: No cases have beenfiled dealing with overcrowding;however, there is an equal protectionand conditions case involving theNebraska Center for Women at York.Klinger v. Nebraska Dept. of Correc­tionaIService§;,C.V:'88-L-399 (D. Neb.).IiJ. a case challenging conditions at theMedium Seclltity Unit of the NebraskaState Penitentiary, the court held thatthere was no violation of the EighthAmendment. However, the court didnote that those conditions "are poten­tially close to creating intolerableconditions...unless remedial measuresare implemented." Kitt v. Ferguson, 750F.Supp. 1014, 1019 (D. Neb. 1990).

28. Nevada:' The Nevada State Prisonat Carson City has been under acomprehensive court order since 1980concerning population, conditions, anddelivery of health care services. A newconsent decree consolidating theprevious orders was entered by thedistrict court on May 19, 1988. Phillipsv. Bryan, CVR-77-221-ECR (laterchang~j!_o Bnglflnd v.,Miltet:.:with thE";f,'

"same docket number)~ TWo.nt()nftl'J1'S'~ .,.appointed under the terms of theagreement have been reporting oncompliance. In 1991, the state made amotion to dismiss the case; that motionis pending. In the meantime, the- "-'.- ­parties are negotiating on the mentalhealth issues.

29. New Hampshire:" The statepenitentiary is under court orderdealing with total conditions andovercrowding. Laaman v. Helgemoe,437 F.Supp. 269 (D.N.H. 1977). Theparties negotiated a consent decree inMay 1990 that resolved a pendingmotion for contempt. Compliance isbeing monitored.

30. New Jersey: For years the statehas been able to stave off overcrowd­ingintheprisonsbymandating thatcounty jails take the overflow fromthe state system. However, most of the·state's 21 county jails are under courtorder. State prisoners continue to backup into municipal lock-ups.

31. New Mexico:' The entire system isunder court order on overcrowdingand total conditions. Duran v.Apodaca, C.A. No. 77-721-C (D.N.M.)(consent decree entered August 1,1980). A special master was appointed

THE NATIONAL PRISON PROJECT JOURNAL

in June 1983. Defendants moved tovacate the consent decree, but thedistrict court denied the motion.Duran v. Carruthers, 678 F.Supp. 839(D.N.M. 1988). The court of appealsaffirmed the decision. 885 F.2d 1485(10th Cir. 1989), cert. denied, 110 S.Ct.865 (1990). Because the state is insubstantial compliance with thedecree, in August 1991 the partiesagreed to an eventual vacating of thedecree. In exchange, the state agreed toa permanent, non-modifiable set ofpopulation controls including aprohibition against double-ceIling. Thedistrict court approved this settlementin an order entered September 20, 1991.

32. New York: While no state-widecomprehensive lawsuits have beenbrought, numerous prison facilities areunder court order, and injunctive reliefhas been obtained in the follOWingcases:

In 1979, a case was filed challengingthe delivery of medical care at theGreen Haven Correctional Facility.Milburn V. Coughlin, 79 Civ. 5077(S.D.N.Y.). In 1982, the parties enteredinto a comprehensive settlement. Later,in order to settle a contempt motion,the parties negotiated a modifiedagreement. Compliance is beingmonitored.A case was filed challenging delivery

of medical care at the Bedford Hillswomen's prison. The court of appealsupheld a favorable opinion and order.Todaro V. Ward, 565 F.2d 48 (2nd Cir.1977). In 1988, a renegotiated consentdecree was entered which includedimprovements in the delivery ofhealth care in general and the enforce­ment of services to HIV-positiveprisoners.Astate-wide class action suit was

filed in 1990 challenging the inad­equate treatment of HIV-positiveprisoners and deficiencies in the HIVeducation program. Inmates with AIDSV. Cuomo, #90CV252 (N.D.N.Y')' Thisaction was certified as a class actionand discovery is proceeding, subject toelaborate safeguards to protect confi­dentiality.Astate-wide class action suit was

filed in 1980 on behalf of prisonersconfined to segregation units. Ander­son V. Coughlin, 80 Civ. 3037 (S.D.N.Y.).Aconsent decree was entered in 1984on the medical and legal access issues.In 1985, the court of appeals upheld anunfavorable decision on the exerciseand recreation issues. Anderson v.Coughlin, 757 F.2nd 33 (2d Cir. 1985).

The protective custody unit at GreenHaven Correctional Facility is operat­ing under a 1983 consent judgmentconcerning conditions and practices.Honeycutt V. Coughlin, 80 Civ. 2530(S.D.N.Y.). Compliance is being moni­tored.A district court judge recently held

defendants liable for racial segregationin housing and job assignments at.c •

Elmira Correctional Facility. Santia,gov. Miles, #86-694L (W.D.N.Y.) (dec~onand order entered October 1, 1991).'Prisoners at Clinton Correctional

Facility brought a class action suit in1983 concerning the delivery of mentalhealth services. Tomasulo v. LeFevre, 84CV 1035 (N.D.N.Y.).The Attica Special Housing Unit is

under challenge on conditions ofconfinement. In 1990, the courtgranted a preliminary injunctionproviding substantial relief on thedelivery of medical care services. EngV. Coughlin, CV-80-3859 (W.D.N.Y.). Seealso, 865 F.2d 521 (2nd Cir. 1989).The Bedford Hills Correctional

Facility is under challenge concerningthe delivery of mental health servicesfor women confined in segregationfacilities. Defendants' motion forsummary judgment or qualifiedimmunity was denied. Langley V.

Coughlin, 709 F.Supp. 482 (S.D.N.Y.1989), appeal dismissed, 888 F.2d 252(2nd Cir. 1989). In a later opinion, thecourt accepted the recommendations ofthe magistrate to deny defendants'further motion for summary judgmentand for class certification. 715 F.Supp.522 (S.D.N.Y. 1989).

33. North Carolina:' In September1985, a consent judgment was enteredcovering overcrowding, staffing,programming, and medical services inthirteen units of the state's road andfarm camp system in the SouthPiedmont area. Hubert V. Ward, C-C-80­414-M (W.D.N.C.). Compliance wasachieved, and the case was placed onthe court's inactive docket.The Craggy Unit outside of Asheville

was under an August 1987 consentdecree covering conditions andovercrowding. Epps V. Martin, A-C-86­162 (W.D.N.C.). A new prison wascompleted and Craggy was closed.The Caledonia Farm facility is

operating under a 1988 consent decreeconcerning overcrowding and generalconditions. The consent decree imposeda population cap and emphasizedprotection from assault and reducingviolence. Stacker V. Stephenson.

There are also pending cases onovercrowding and conditions at OdomFarm, Barnet V. Allsbrook, #89-705 CRTBO (E.D.N.C.), and Harnett CorrectionalCenter, Bass V. Stephenson, #87-499-CRTBO (E.D.N.C.). These cases, filed in 1989,are still in the discovery phase.The remaining 49 units of the state

system are operating under a December1988 settlement covering overcrowdingand conditions. Small V. Martin, 85­987-CRT BR (E.D.N.C.). Compliance isbeing monitdfed.A case challenging the adequacy of

mental hearth care at the state'swomen's prison was settled out ofcourt. Mutz V. Johnson.

34. North Dakota: No cases have beenfiled dealing with overcrowding orconditions.

35. Ohio:' In a case involving theSouthern Ohio Correctional Facility,the district court banned double­ceIling. The Supreme Court laterreversed this decision. Chapman V.

Rhodes, 434 F.Supp. 1007 (S.D. Ohio1977), a/I'd, 624 F.2d 1099 (6th Cir.1980), rev'd, Rhodes V. Chapman, 452U.S. 337 (1981).A preliminary injunction was entered

at the Columbus State Prison on thehousing of prisoners by race and onthe use of certain physical restraints.Stewart V. Rhodes, 473 F.Supp. 1185 (S.D.Ohio 1979). Aconsent decree was laterentered in 1979 which incorporatedthe provisions of the preliminaryinjunction. See 656 F.2d 1216 (6th Cir.1981). The state prison was closed in1985.The State Reformatory at Mansfield

was operating under a consent decreeon various conditions. Boyd V. Denton,C.A. 78-1054A (N.D. Ohio, order enteredJune 1983). The prison was closed atthe end of 1990. A case was filed in1978 concerning the delivery ofmedical care to all Ohio prisoners.Register V. Denton, C-78-1680 (N.D.Ohio). Medical care at Mansfieldoperated under a 1981 consent decreeuntil a new medical facility wasconstructed in the late 1980s. Theplaintiffs are currently conductingdiscovery and attempting to apply theterms of the consent decree to thenewly built unit.There is continuing litigation with

respect to conditions and population atthe Marion Correctional Facility atMarion, Ohio. Taylor V. Perini, #c69-275(N.D. Ohio). Also see published ordersand reports of the special master inthis case at 413 F.Supp. 189 (N.D. Ohio

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1992

17 ...~.J

L

1976); 421 F.Supp. 740 (N.D. Ohio 1976);431 F.Supp. 566 (N.D. Ohio 1977); 446F.Supp. 1184 (N.D. Ohio 1977); 455F.Supp. 1241 (N.D. Ohio 1978) and 477F.Supp. 1289 (N.D. Ohio 1980).A case filed by an individual prisoner

challenging conditions and crowding atthe Hocking Correctional Facility wasdismissed by the district court. Onappeal, this decision was affirmed.Wilson v. Seiter, 893 F.2d 861 (6th Cir.1990). In June 1991, the Supreme Courtreversed and remanded. 111 S.Ct. 2321(1991). The case is now in the districtcourt on the state's motion for sum­mary judgment.

36. Oklahoma:' The state peniten­tiary at McAlester is under court orderon total conditions, and the entirestate prison system is under courtorder on overcrowding. Battle v.Anderson, 564 F.2d 388 (10th Cir. 1979).The district court's decision in 1982 toretain jurisdiction to assure continuedcompliance was upheld. 708 F.2d 1523(10th Cir. 1983). Later, in 1984, thedistrict court relinquished jurisdiction;that decision was affirmed. 788 F.2d1429 (10th Cir. 1986). Although thecourt has ended active supervision, allcompliance orders are still in effect,and the penitentiary remains underpermanent injunction. In fact, the staterecently asked the court to vacate oramend the original order to allow thestate to renovate closed housingbecause of overcrowding. The courtdetermined that the order is still ineffect, and refused to amend the orderbecause circumstances have notchanged.

37. Oregon: The state penitentiarywas under a court order on overcrowd­ing. Capps v. Atiyeh, 495 F.Supp. 802 (D.Or. 1980), stayed, 449 U.S. 1312 (1981)(Rehnquist, J.), vacated and remanded,652 F.2d 823 (9th Cir. 1981). On remand,the district court determined that onlymedical care and fire safety violatedthe Eighth Amendment. 559 F.Supp. 894(D. Or. 1982).

38. Pennsylvania:' A case was filedat the women's state prison at Muncychallenging equal protection violationsand hazardous physical conditions(inclUding fire safety violations).Beehler v.jeffes, 664 F.Supp. 931 (M.D.Pa. 1986). Most of the claims have beensettled or voluntarily dismissed; anasbestos claim is pending and plaintiffsare monitoring the removal schedule.The State Correctional Institution at

Pittsburgh (SCIP) is under court orderto reduce double-ceIling in the old 19th

18 WINTER 1992

century cellblocks and to improvestaffing and the delivery of medicaland mental health services. Tillery v.Owens, 719 F.Supp. 1256 (W.D. Pa. 1989),affd, 907 F.2d 418 (3rd Cir. 1990). Theparties negotiated a remedial agree- ..ment in 1990 which the court then ':!'entered as an order. In early 1991, the\district court entered further orders;(mlegal access and staff supervision.

On November 20, 1990, a case wasfiled challenging conditions and ?,

overcrowding at 13 state facilities,excluding those already under courtorder. Austin v. Lehman, C.A.#90-7497(KD. Pa.). A motion to dismiss wasdenied, and discovery is now underway.39. Rhode Island:' The entire state

system is under court order on over­crowding and total conditions.Palmigiano v. Garrahy, 443 F.Supp. 956(D.R.I. 1977). A special master wasappointed in September 1977. Newpopulation caps were imposed by courtorder in June 1986. Various contemptorders have been entered. See, e.g., 700F.Supp. 1180 (D.R.I. 1988). On August 21,1989, the First Circuit affirmed in allrespects the trial court's opinions andcontempt orders of October 21, 1988and April 6, 1989, imposing sanctions.The trial court ordered that the finesbe utilized to establish a bail fund torelease low-bail detainees. 710 F.Supp.875 (D.R.I. 1989), afl'd, 887 F.2d 258 (1stCir. 1989). In May 1990 the court madean additional finding of noncompli­ance with population cap orders andrequired the release of certain prison­ers. 737 F.Supp. 1257 (D.R.I. 1990).

40. South Carolina:' The entireprison system is under a consent decreeon overcrowding and conditions. Plylerv. Evatt, C.A. No. 82-876-0 (D.S.C.)Qanuary 8, 1985). A release orderentered by the district court in thesummer of 1986 was held moot by thecourt of appeals. 804 F.2d 1251 (4th Cir.1986). In 1988 the district court deniedthe state's motion to modify theconsent decree and ordered the state toreduce the prison population inconformance with the decree. Thisorder was vacated and remanded bythe court of appeals. 846 F.2d 208 (4thCir. 1988). In 1990 the district courtagain denied the state's motion tomodify the decree and again the courtof appeals vacated and remanded thecase. 924 F.2d 1321 (4th Cir. 1991). Therehave been extensive subsequentnegotiations in this case. In 1990, theparties agreed to permit an increase in

population, but the state made impor­tant concessions in programming andfuture construction.

41. South Dakota:' The state peniten­tiary at Sioux Falls is under courtorder on a variety of conditions. Codyv. Hillard, 599 F.Supp. 1025 (D.S.D.1984). The appeals court reversed anovercrowding order, finding thatdouble-ceIling was not unconstitu­tional. 830 F.2d 912 (8th Cir. 1987) (enbane), cert. denied, 485 U.S. 906 (1988).

42. Tennes~e:' The entire system isunder courqjrder for overcrowdingand conditiOns. Grubbs v. Bradley, 552F.Supp. 1052 (M.D. Tenn. 1982). Thecourt ordered a reduction in popula­tion, and appointed a special master inDecember 1982. In an October 25, 1985order, the court enjoined the intake ofnew prisoners because the state hadfailed to comply with the populationreduction terms of prior orders.

On August 16, 1990, the court orderedthat the Tennessee State Prison inNashville be closed by March 30, 1992.In the interim, the population will bereduced. On February 15, 1991, thespecial master recommended to thecourt that double-ceIling be permittedat the Turney Center. He also recom­mended population caps at four newstate regional facilities. However, hisreport reqUired that there be nodecrease in staffing levels. Theserecommendations are currentlypending before the judge.

On October 4, 1989 the Sixth Circuitconsolidated Grubbs with numerous10cM jail overcrowding cases in whichstate prisoners were backed up in thejails. Carver v. Knox Co. Sheriff, 887F.2d 1287 (6th Cir. 1989). A master wasappointed to monitor the jails andwork with the Grubbs master. Popula­tion caps have been recommended andapproved by the court.

43. Texas: In 1980, the entire stateprison system was declared unconstitu­tional on overcrowding and conditions.A special master was appointed. Ruiz v.Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980),aff'd in part, vacated in part, 679 F.2d1115 (5th Cir. 1982). The parties negoti­ated an agreement and, in 1985, aconsent decree was entered on theissue of overcrowding. On December 3,1986, the district court held stateofficials in contempt. Ruiz v. McCotter,661 F.Supp. 112 (S.D. Tex. 1986). Thecontempt order was vacated on April27, 1987; no fines were imposed. Thestate sought to modify the terms of theconsent decree concerning crowding;

THE NATIONAL PRISON PROJECT JOURNAL

Court orders have been entered in 40 states, the District of Columbia, Puerto Ricoand the Virgin Islands in an effort to eliminate overcrowded conditions in prisons,

this motion was denied and the denialaffirmed on appeal. Ruiz v. Lynaugh,811 F.2d 856 (5th Cir. 1987). During thesummer of 1989, private corporationsoperating state prisons on a contractbasis were added as party defendants.Because the backlog of state prisonersconfined in county facilities affectsthe Ruiz consent order, the FifthCircuit has ordered the Ruiz court andthe district court having jurisdictionover the jail cases to jointly hear anyrequests for relief requiring thetransfer of county prisoners into statecustody. In Re Clements, 881 F.2d 145(5th Cir. 1989), and Alberti V. Sheriff ofHarris County, Texas, 937 F.2d 984 (5thCir. 1991). The special master's officeclosed in 1990.

44. Utah: The state penitentiary isoperating under a consent decree onovercrowding and some conditions.Balderas V. Matheson (formerlyNielson v. Matheson), C-76-253 (D.Utah). The 1979 consent decree wasignored because it lacked an effectivemechanism for enforcement. A lawsuitchallenging double-ceIling at thepenitentiary was filed in 1986. BakerV. DeLand, #c86-0361G. In June 1989,the court entered a temporary restrain­ing order regarding double-ceIling. InNovember 1991, the magistrate judgefiled a report with the court recom­mending that double-ceIling be barredin some units while permitting it inothers after remodeling.

In December 1989, a further com­plaint was filed challenging thedelivery of medical and mental healthservices at the state penitentiary.Henry V. DeLand, C.A. 89-C-1124 (D.Utah). Settlement discussions on someissues are underway.Finally, a complaint was filed in 1989

on violence at the prison perpetratedby both sta.!f and prisoners. This caseis in discovery. Harding V. DeLand,#890-905342CV.

45. Vermont: The state prison wasclosed in the late 1970s. Maximumsecurity prisoners are sent to otherstates. The state operates two in-state"central" facilities for close andmedium custody prisoners.

46. Virginia:' The state prison atPowhatan is under a consent decreedealing with overcrowding andconditions. Cagle V. Hutto, 79-0515-R(E.D. Va.).The maximum security prison at

Mecklenburg is under court orderdealing with various practices andconditions. Brown v. Hutto, 81-0853-R

THE NATIONAL PRISON PROJECT JOURNAL

(E.D. Va.) (April 1985).The state penitentiary at Richmond

was challenged in 1982 on the totalityof conditions. Shrader v. White, C.A. No.82-0247-R (E.D. Va.). The trial courtdismissed the complaint in June 1983.The court of appeals affirmed in par~and remanded in part. 761 F.2d 975 (4thCir. 1985). The remand was settled in'1987, covering certain prisoner saf.~iyissues. ".y,Finally, on September 21, 1990, 3.<"

lawsuit was filed challenging deterio­rating conditions at the 190-year-oldstate penitentiary at Richmond, which

the state had announced on threeoccasions would be closed. Congdon V.

Murray, 3:90-CV-00536 (E.D. Va.). OnNovember 21, 1990, the district courtordered basic fire safety and sanitationmeasures. The state permanently closedthe prison on December 14, 1990.

47. Washington:' The state peniten­tiary at Walla Walla was declaredunconstitutional on overcrowding andconditions, and a special master wasappointed. Hoptowit V. Ray, C-79-359(E.D. Wash.) aune 23, 1980), afl'd inpart, rev'd in part, vacated in partand remanded, 682 F.2d 1237 (9th Cir.1982). The court of appeals affirmedthe subsequent decision of the trialcourt and remanded the case again forentry of an order. Hoptowit V.

Spellman, 753 F.2d 779 (9th Cir. 1985).An order was filed on April 10, 1986.Defendants' motion to dissolve theinjunction was denied on May 22, 1987.There is no compliance monitoring.

48. West Virginia: The state peniten­tiary at Moundsville is under courtorder on overcrowding and conditions.Crain V. Bordenkircher, #81-C-320R

(Circuit Court, MarshallCounty)(memorandum and order ofJune 21, 1983). Plaintiffs challenged asinsufficient a remedial plan preparedby defendants. The state SupremeCourt agreed with plaintiffs andordered the defendants to develop anew plan. 342 S.E.2d 422 (W.Va. S.Ct.1986). Since that 1986 decision, thestate Supreme Court has maintainedjurisdiction over this case. In 1988, thecourt ordered the defendants' im­proved plan\0 be implemented, andfurther ordeted the state to close theprison. 376,:S.E.2d 140 (1988). Thereaf-

ter, opinions on the status of imple­mentation have been filed on anannual basis. See 382 S.E.2d 68 (1989);392 S.E.2d 227 (1990); and 408 S.E.2d 355(1991).

The Huttonsville Correction Center isalso under court order with respect tocrowding and conditions. The detailedorder required population reductionand the building of a vocationaltraining center. Nobles V. Gregory, #83­C-244 (Circuit Court, RandolphCo.)(memorandum and order datedFebruary 22, 1985). Enforcementproceedings are ongoing.In 1981, the state Supreme Court held

that women prisoners had a statestatutory and constitutional right torehabilitation and education. Cooper V.

Gwinn, 292 S.E.2d 781 (W.Va. S.Ct. 1981).Detailed orders were entered thereaf­ter. The women were transferred in1990 to a facility located in Grafton,West Virginia. Compliance is beingmonitored.

49. Wisconsin:' The state prison atWaupun is under a court order onovercrowding. Delgado V. Cady, 576

WINTER 1992 19

F.Supp.1446(E.D.Wis. 1983). .~h¢fwo.men'sprison at Taycheedah IS

()peratingunder a 1988 consent decreewhich imposes a population cap anddeals with programming, delivery ofmedical services and environmentalhealth issues. Bembenek v. Bablitch,#86-c-262 (E.D. Wis.). Compliance isbeing monitored.

50. Wyoming:' The old state peniten­tiary was being operated under theterms of a stipulation and consentdecree. Bustos v. Herschler, C.A. No. C76­143-B (D. Wyo.). The federal courtrelinquished jurisdiction in early 1983and that prison is now closed. A newprison was opened thereafter which, in1991, was operating above capacity.

51. District of Columbia:' TheDistrict jails are under court order onovercrowding and conditions. Inmatesof D.Cjail v.jackson, 416 F.Supp. 119(D.D.C. 1976); Campbell v. McGruder,416 F.Supp. 100 (D.D.C. 1976), afl'd andremanded sub nom. Campbell v.McGruder, 580 F.2d 521 (D.C. Cir. 1978)(concerning the old D.C. Jail). Onremand, the court ordered a time limiton double-ceIling and an increase instaff at the new D.C. Jail (CDF). 554F.Supp. 562 (D.D.C. 1982). In 1985, aftertrial, the district court ordered thatintake be enjoined. Inmates ofD.Cjailv.]ackson, #75-1668 (D.D.C.)(enteredJuly 15, 1985). A consent decree, whichsupplanted the initial order andreqUired a reduction in population, wasentered August 22, 1985.Several facilities at the Lorton

Complex, the District's facility forsentenced prisoners, are under courtorder for overcrowding, conditions,and the delivery of health services.Population caps are in place at boththe Central Facility and the MaximumSecurity Facility. Twelvejohn Does v.District of Columbia, #80-2136 (D.D.C.)(Centra!); john Doe v. District ofColumbia, #79-1726 (D.D.C.) (Maxi­mum). The District has been held incontempt for violations of the cap atCentral. Twelve john Does v. District OfColumbia, 855 F.2d 874 (D.C. Cir. 1988).On December 22, 1986, Lorton's

medium security Occoquan facilitiescame under court order and a popula­tion cap was imposed. Inmates OfOccoquan v. Barry, 650 F.Supp. 619(D.D.C. 1986), vacated and remanded,844 F.2d 828 (D.C. Cir. 1988), motionfor rehearing en banc denied, 850 F.2d.796 (D.C. Cir. 1988) (dissenting opinionsand separate statements). A secondtrial on remand was held in January

20 WINTER 1992

1989. The facility was held unconstitu­tional, and the defendants wereordered to devise a plan to alleviateconstitutional violations. 717 F.Supp.854 (D.D.C. 1989). Plans have beenapproved by the court and complianceis being monitored.In March 1990, a lawsuit was filed

challenging crowding and conditions".at Lorton's Modular Facility, a new 'prison that was designed as the .District's reception and classificationfacility. Inmates ofModular Faciitty v.District of Columbia, #90-0727 (D.D.C.).In the middle of trial, a settlementwas reached and a consent decreeentered which includes a populationcap and reqUires improvements inmedical care. (Order of December 14,1990.)

52. Puerto Rico: The entire Common­wealth prison system is under a 1979court order dealing with overcrowdingand conditions. Morales Feliciano v.Romero Barcelo, 497 F.Supp. 14 (D.P.R.1979). In 1986, the Commonwealth wasagain found liable on crowding,conditions and delivery of health careservices in its entire prison and jailsystem. Two court monitors wereappointed. 672 F.Supp. 591 (D.P.R. 1986).In 1987, the Commonwealth was heldin contempt for violation of thepopulation limits set out in a 1986stipulation. Morales Feliciano v.Hernandez Colon, 697 F.Supp. 26(D.P.R. 1987).A population cap was established at

Ponce District Jail where sentencedfelons are housed. 697 F.Supp. 37(D.P.R. 1988). The district court orderedcontempt fines for violations of thecap; the fines were upheld on appeal.Morales Feliciano v. Parole Board, 887F.2d 1 (1st Cir. 1989).

53. Virgin Islands: The territorialprison is under court order dealingwith conditions and overcrowding.Barnes v. Gov't. Of the Virgin Islands,415 F.Supp. 1218 (D.V.I. 1976).

Summary

Entire Prison System Under Court Orderor Consent Decree:

11 jurisdictions: •Alaska, 'Delaware,Florida, Mississippi, 'New Mexico,'Rhode Island, 'South Carolina, 'Ten­nessee, Texas, Puerto Rico, VirginIslands

Major Institution{s} in the State/Jurisdiction Currently Under Court Orderor Consent Decree:

32 jurisdictions: •Arizona, 'California,'Colorado, 'Connecticut, 'Hawaii,'Idaho, 'Illinois, 'Indiana, Iowa, Kansas,'Kentucky, Louisiana, 'Maine, 'Mary­land, Massachusetts, 'Michigan, 'Mis­souri, 'Nevada, 'New Hampshire, NewYork, 'North Carolina, 'Ohio, 'Okla­homa, Oregon, 'Pennsylvania, 'SouthDakota, Utah, 'Virginia, 'Washington,West Virginia.. 'Wisconsin, 'District ofColumbia :

't,,'

Formerly Under Court Order or ConsentDecree or Currently Released from ActiveSupervision of the Court:

6 jurisdictions: •Alabama, •Arkansas,Georgia, 'Oklahoma, Oregon, 'Wyoming

Pending Litigation:11 jurisdictions: •Arizona, 'California,

'Colorado, 'Connecticut, Georgia,Nebraska, New York, 'North Carolina,'Ohio, 'Pennsylvania, 'Utah

Special Masters/Monitors/MediatorsAppointed {present and pas~:

25 jurisdictions: •Alabama, •Alaska,•Arizona, •Arkansas, 'California,'District of Columbia, Florida, Georgia,'Hawaii, 'Idaho, 'Illinois, Kansas,Louisiana, 'Michigan, 'Nevada, 'NewMexico, New York, 'Ohio, 'Pennsylva­nia, 'Rhode Island, 'Tennessee, Texas,Washington, District of Columbia,Puerto Rico

Prison Systems or Major Facilities UnderCourt Order and Cited for Contempt{present and pas~:

8 jurisdictions: •Alabama, 'Michigan,Mississippi, 'Rhode Island, Texas,Virginia, 'District of Columbia, PuertoRico

Not Involved {to date} in OvercrowdingorCondinonsLinganon:

5 jurisdictions: Minnesota, Montana,New Jersey, North Dakota, Vermont

Note: There is some overlap between the second andfourth categories because, in some states, one ormore facilities are under court order while otherfacilities in that state are presently beingchallenged (e.g., Illinois). Also, Oklahoma is listed inboth the second and third categories because theMcAlester facility is still under the court orderentered in Battle v. Anderson but is no longer underactive court supervision. •

Edward l Koren is a senior staffattorney with the NPP.

THE NATIONAL PRISON PROJEO JOURNAL

AIDS CoordinatorLooks Back onFour Years' Work

When I first joined the NationalPrison Project as the AIDSinformation coordinator in

1988, I met with one of the foremostadvocates of prisoners with HIV/ AIDSin this country-Mike Riegle' of GayCommunity News. While sitting outin Dupont Circle, Mike told me that hecould count the number of advocatesfor prisoners with AIDS on one hand.I realized that the most importantcontribution that I could make wouldbe to strengthen the small butgrowing network of support forprisoners who were HIV-positive orwho were trying to understand andfight the AIDS epidemic behind thewalls.

Nearly four years later, as I leavethe National Prison Project to move toCalifornia, I think that the combinedefforts of people around the countryhave affected the lives of prisonerswith HIV and AIDS. While this

(cont'd from page 4)

"The buck must stop with one particu­lar person...a person with a name and aface must be responsible for eachtuberculosis..patient."

The CDC also stresses that the burden ofproving that intramural transmission of TBis notoccurring rests on the correctionalinstitution. Until improvements in this areaare made, a jail or prison sentence mayinclude not only loss of freedom but also anincreased risk of tuberculosis.

Judge Morris Lasker has ordered NewYork City to open a 140-bed isolation uniton Rikers Island. The first 42 beds willbe operational by May 1st. Dr. Safyer isdelighted about the unit, which he calls"state-of-the-arLfar exceeding anything Ihave seen in the New York hospitalsystem."

The New York City correctional system(which already diagnoses and treats over

THE NATIONAL PRISON PROJECT JOURNAL

coalition has included a variety of"people-AIDS educators and activists,lawyers, prisoner advocates, healthcare workers, some concerned pri~onstaff-it has been the tireless infet­vention of prisoners themselves thathas made the most difference.

It's not that the quality of life forprisoners with HIV or AIDS haschanged. I doubt whether conditionshave improved in four years. It istrue that almost all of the state prisonsystems and the Federal Bureau ofPrisons are dispensing AZT and otherdrugs necessary to treat and managethe AIDS virus. Fewer state systemsthan ever are segregating HIV-positiveprisoners or those with full-blownAIDS. HIV-positive prisoners havebeen effectively mainstreamed intothe general prison population. Only afew stubborn states like Alabama,Mississippi, Missouri and Californiamaintain the unnecessary segregationpolicies.

However, despite more seeminglyenlightened prison policies, prisonerswith HIV/ AIDS are still treateddifferently. They are often ratedmore harshly for disciplinary infrac­tions and held longer in administra­tive segregation. Many states still donot allow HIV-infected prisoners

100 patients on any given day) willprovide chest x-rays for all 150,000admissions along with the tuberculosisskin test.

"By doing thiS," says Safyer, "we willdiagnose many more patients, place themin safe environments and follow themunder supervised care. This is the onlyproper response for New York City and, Isuspect, for many other correctionssystems." _

Jan Elvin is editor of the NPPJOURNAL.

1 Quoting Dr. George di Fernando Jr., director ofNew York State Health Dept. TB Control Program,"New York Moving to Limit TB Spread," New YorkTimes, p.42, (December 8, 1991).2 Montefiore provides medical care for theapproximately 20,000 inmates in the New YorkCity jails.3 Karen Brudney and Jay Dobkin, "Resurgent

access to the same jobs and vocationaltraining as other prisoners. Whilesome early parole/medical releaseprograms have been put into place forprisoners wi,h terminal illnesses, moststate legislatures and prison adminis­trations ha:sfe not discovered thehumanity Of allowing prisoners withAIDS to live the last months of theirlives with their family and friends.

Corrections administrators have yetto ensure an HIV-positive prisoner'sright to privacy. Staff have much tolearn about how HIV/ AIDS is trans­mitted and why they should useuniversal precautions when dealingwith all prisoners, not only the fewknown to be HIV-positive.

The most important change over thepast four years has been advocacy onbehalf of prisoners with HIV andAIDS on both sides of the walls.

AIDS service organizations andhealth educators all over the countryhave set up programs inside jails andprisons. Of course, there has beensome resistance on the part of prisonadministrators to "outsiders," butmany projects have overcome eventhat obstacle. These organizationshave provided badly needed educa­tional brochures, videos, and classesfor prisoner peer educators.

Tuberculosis in New York City: Human Immunodefi­ciency Virus, Homelessness, and the Decline ofTuberculosis Control Programs," American ReviewofRespiratory Disease, 144:741-743 (1991).4 Alan Bloch, M.D., in a speech entitled, "PreventingTB Outbreaks in Your Correctional Facility," givenat the 1991 National Conference on CorrectionalHealth Care.S William W. Stead, M.D., "Undetected Tuberculosisin Prison: Source of Infection for Community atLarge," JAMA, Vol.240, No.23, (Dec. 1, 1978).6 Bailus Walker Jr., Ph.D., MPH, "Prison PopulationPressures: The Epidemiological Basis for PresentDensity Standards," Journal Of EnvironmentalHealth, Vol. 54, No.2, pp.18-21, (Sept./Oct. 1991).7 L.N. King and G. Geis, "Tuberculosis Transmissionin a Large Urban Jail," JAMA, 261:393-397, (1977).8 Peter A. Selwyn, et al., "A Prospective Study of theRisk of Tuberculosis Among Intravenous Drug Userswith Human Immunodeficiency Virus Infection,"The New EnglandJournal ofMedicine, Vol.320, No.9,pp. 545-550, (March 2, 1989).9 Barnes, et al., The New EnglandJournal ofMedicine, Vol.324, No.23, Oune 1991).10 Bureau of Justice Statistics.

WINTER 1992 21

.

Judy Greenspan, NPP AIDS information coordinator for the past four years,demonstrates here on behalf of Gregory Smith, an HIV inmate convicted ofattempted murder for biting a prison guard.

THE NATIONAL PRISON PROJECT JOURNAL

was four years ago about advocacyand education efforts on behalf ofprisoners with HIV/ AIDS. But wewill have our work cut out for us aswe move into the second decade ofthe AIDS epidemic. I intend tocontinue my involvement from mynew home on the West Coast. •

'We learned before going to pressthat Mike Riegle has died. We mournthe loss of a friend and a valuableadvocate for prisoners with HIV/AIDS.Judy Greenspan recently resigned fromherposition as AIDS informationcoordinator for the NPP.

have a dramatic impact on thesituation of AIDS and prison not onlyin New York but around the country.First is the discovery of a drug­resistant strain of tuberculosis whichhas caused several deaths in a NewYork state prison. The second item isthe recent announcement by theWorld Health Organization that AIDScases worldwide will rise tenfold bythe year 2000. Since the rate of HIVinfection in prisons and jails is muchhigher than that of the generalpopulation, we will witness anincrease in the number of prisonerswith HIV and AIDS.

I am much more optimistic than I

22 WINTER 1992

AIDS activist organizations, like ACTUP, have responded creatively tocritical problems and abuse faced byprisoners with HIV and AIDS. Fromthe Justice for Gregory Smith cam­paign (an HIV prisoner, Smith wasconvicted of attempted murder andsentenced to 25 years in prison forbiting a prison guard) to the firstnational demonstration in Madison,Wisconsin, on the anniversary of thesuspected murder of Donald Woods, aprisoner with AIDS, activists havestrongly advocated on behalf ofprisoners with HIV/ AIDS.

The National Commission on AIDSreport on "HIV Disease in CorrectionalFacilities" was a major contribution toour efforts to place AIDS and prisonissues on the national agenda. Thisdocument, based on prison site visitsand testimony by prisoners, lawyers,corrections officials, health educatorsand practitioners, contains a set ofmodel recommendations which, iffollowed, would radically transformthe care and treatment of people withHIV/ AIDS behind the walls.

Not surprisingly, prisoners them­selves are the most active members ofthis coalition. I consistently drew mygreatest inspiration from the prisonerswho attempted to stem the epidemicbehind the walls. Joining with themwere prisoners who were not HIVpositive but felt the urgency ofresponding positively to the epidemic.

These prisoners are truly on thefront lines fighting not only theepidemic but the fear of AIDS. Thesepeer educators have faced punitivetransfers, harassment, shakedowns,and disciplinary segregation for theirefforts to set up education programs.From the ACE (AIDS Counseling andEducation) program in New York(which I was.pever able to visitbecause of the defensiveness of theDepartment of Correctional Services)to less recognized but equally dedi­cated groups of men and womenprisoners around the country, I saluteyour efforts to provide peer counsel­ing and education.

Four years later-the problems arestill as overwhelming as they werethen. My greatest concern is compla­cency among correction officials.True, the numbers of HIV-positiveprisoners in some areas of the countryhave not proven to be as high asoriginally anticipated. The epidemichas not spread as quickly as predicted.However, two recent news items will

blications

QTY. COST

The National PrisonProject JOURNAL, $30/yr.$2/yr. to prisoners.

The Prisoners AssistanceDirectory, the result of anational survey, identifies anddescribes various organizationsand agencies that provideassistance to prisoners. Listsnational, state, and localorganizations and sources ofassistance including legal,library, AIDS, family support,and ex-offender aid. 9thEdition, published September1990. Paperback, $30 prepaidfrom NPP.

Offender Rights Litiga­tion: Historical andFuture Developments. Abook chapter by Alvin J.Bronstein published in thePrisoners' Rights<sourcebook (1980). Tracesthe history of the prisoners'rights movement and surveysthe state of the law on variousprison issues (many casecitations). 24 pages, $3 prepaidfrom NPP.

QTY.COST

The National PrisonProject Status Report listsby state those presently un~er

court order, or those whichhave pending litigation ,eitherinvolving the entire stateprison system or major ~ vinstitutions within the state.Lists cases which deal withovercrowding and/or the totalconditions of confinement. (Nojails except District of Colum­bia.) Updated January 1992. $5prepaid from NPP.

Bibliography of Materialon Women in Prisonlists information on this subjectavailable from the NationalPrison Project and othersources concerning health care,drug treatment, incarceratedmothers, juveniles, legislation,parole, the death penalty, sexdiscrimination. race and more.35 pages. $5 prepaid from NPP.

A Primer for Jail Litiga­tors is a detailed manual withpractical suggestions for jaillitigation. It includes chapterson legal analysis, the use ofexpert witnesses, class actions,attorneys' fees, enforcement,discovery, defenses' proof,remedies, and many practicalsuggestions. Relevant casecitations and correctionalstandards. 1st Edition, February1984.180 pages, paperback.(Note: This isnot a"jailhouselawyers" manual.) $20 prepaidfrom NPP.

(orderfrom

ACLU)

QTY.COST

1990 AIDS in PrisonBibliography lists resourceson AIDS in prison that areavailable from the NationalPrison Project and othersources, including correctionsp.Qlicies on AIDS, educationalm}terials, medical and legal;itticles, and recent AIDSstudies. $5 prepaid from NPP.

AIDS in Prisons: TheFacts for Inmates andOfficers is a simply writteneducational tool for prisoners,corrections staff, and AIDSservice providers. The bookletanswers in an easy-to-readformat commonly askedquestions concerning themeaning of AIDS, the medicaltreatment available, legalrights and responsibilities. Alsoavailable in Spanish. Samplecopies free. Bulk orders: 100copies/$25. 500 copies/$100.1,000 copies/$150 prepaid.

ACLU Handbook, TheRights of Prisoners. Guideto the legal rights of prisoners,parolees, pre-trial detainees,etc., in question-and-answerform. Contains citations. $7.95;$5 for prisoners. ACLU Dept. L,P.O. Box 794, Medford, NY11763.

Fill out and send with check payable to:

The National Prison Project1875 Connecticut Ave, NW, #410Washington, D.C. 20009

THE NATIONAL PRISON PROJEG JOURNAL

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Address _

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WINTER 1992 23

T he following are major develop­ments in the Prison Project'slitigation program since September

15,1991. Further details of any of thelisted cases may be obtained by writingthe Project.

Casey v. Lewis, filed on behalf of allArizona state prisoners, challenges legalaccess, health care, and practices relatingto assignment to segregation. Defendantssought a stay from the Ninth Circuit on adistrict court decision that enjoined themfrom prohibiting contact visits betweenprisoners and their attorneys, and fromdenying food service jobs to qualifiedHIV-infected prisoners. The NinthCircuit denied the stay. Trial began onNovember 20 on medical care, access tocourts, confidential information andhandicap access, and continued throughJanuary 1992.

Dickerson v. Castle challengesconditions and overcrowding inDelaware's adult prisons. In November,the Court of Chancery held thatdefendants had substantially cured theirnoncompliance with the consent decreeand accordingly denied plaintiffs' motionfor contempt. However, the court ruledthat plaintiffs were entitled to attorneys'

National Pris~m ProjectAmerican Civil Liberties Union Foundation1875 Connecticut Ave., NW, #410Washington, D.C. 20009(202) 234-4830THE NATIONALPRISON PROJECf

24 WINTER 1992

fees and invited them to file a renewed,motion for contempt in the event"­defendants fail to maintain compliance:

Hamilton v. Morial challengesconditions at the Orleans Parish Prison,the municipal jail for the City of NewOrleans. In September 1991, the courtentered an order requiring the defen­dants to conform to the mental healthstandards adopted by the NationalCommission on Correctional Health Care(NCCHC). The defendants were alsoordered to remove all state hospitalpatients from the jail within 90 days.

Hudson v. McMillian-On November13, 1991, the Supreme Court of the UnitedStates heard argument in this Louisianacase involving prisoner Keith Hudsonwho was beaten by guards while inshackles. The National Prison Projectargued that the Fifth Circuit was wrongto require a showing of significant injuryin order to prove an Eighth Amendmentviolation. The U.S. Solicitor General,joining as amicus on behalf of Hudson,also argued a portion of the case.

Inman v. Board of Supervisors forNorthampton Co., Virginia-On October11, 1991, the Prison Project and the ACLUof Virginia filed this case against theNorthampton, Virginia County Jail,challenging overcrowding, poor plumbingand sanitation, insect and rodent

infestation, fire safety violations andinadequate medical care. The courtheard argument on the motion for atemporary restraining order on October28. On Novem~(.r 15, the court issued anorder suspending the case for 60 days toallow the Stat~Board of Corrections toresolve the problems. Plaintiffs filed amotion for reconsideration, asking thejudge to lift the stay.

Rufo v. Inmates of Suffolk Co.Jail­The Supreme Court heard oral argumentin this case on October 9, 1991. Officialsof the Suffolk County Jail in Massachu­setts sought to modify a 1979 consentdecree which prohibits double-ceIling.Officials argued that modification wasnecessitated by unanticipated populationincreases and that the modificationwould not result in unconstitutionalconditions. The NPP participated asamicus curiae on behalf of the inmates.On January 15, 1992, the Court sent thecase back to the district court, ruling thatcourts are to apply a "flexible" standardin determining whether to modifyconsent decrees. The Court also held thatthe fact that a consent decree may gQbeyond the requirements of the Constitu­tion would not, by itself, justify modifi­cation.

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