A Your First Amendment Right to Freedom of Speech and Association

The First Amendment protects everybody’s right to freedom of speech and association. Freedom of speech and association includes the right to read books and magazines, the right to call or write to your family and friends, the right to criticize the government or state officials, and much more. However, in prison those rights are restricted because of the prison’s need for security and administrative ease. Because of this, it is often very hard for a prisoner to win a First Amendment case.

Most prison First Amendment issues are governed by a legal standard developed in a case called Turner v. Safley, 482 U.S. 78 (1987). In Turner, prisoners in Missouri brought a class action lawsuit challenging a regulation that limited the ability of people in prison to marry or write letters to each other. The Supreme Court used the case to establish a four-part test for First Amendment claims. Under this test, a court decides whether prison policy or practice is constitutional by asking four questions:

You will want to keep these four questions in mind as you read the following sections on the First Amendment.

1. Access to Reading Materials

The First Amendment protects your right to get reading material like books and magazines. This doesn’t mean that you can have any book you want. Your right is limited by the prison’s interest in maintaining order and security, and promoting rehabilitation. Until 1989, the Supreme Court required prisons to prove that banning material was necessary to meet government interests in prison order, security, and rehabilitation. This standard was from a case called Procunier v. Martinez, 416 U.S. 396 (1974), and it gave people in prison fairly strong protection of their right to get books. However, since then the Supreme Court has become much more conservative and has given prisons greater power to restrict your First Amendment rights. Now a prison can keep you from having magazines and books as long as it meets the Turner test, explained above. This change happened in an important Supreme Court case called Thornburgh v. Abbott, 490 U.S. 401 (1989). If you feel that your right to have reading materials is being violated, you should probably start your research by reading Thornburgh v. Abbott.

While the Turner standard is less favorable to prisoners, it still provides some protection. Prison officials need to justify their policies in some way. If they can’t, the regulation may be struck down. Prisons can’t just ban books and magazines randomly.

Courts also require prisons to follow fair procedures to ban a publication. A prison cannot maintain a list of excluded publications or decide that no materials from a particular organization will be allowed in. It must decide about each book or magazine on a case-by-case basis. This is true even if a prison official already knows that the book or magazine comes from an organization they don’t approve of. Williams v. Brimeyer, 116 F.3d 351 (8th Cir. 1997). Some type of notice from the prison is usually required as well. For example, some prisons require the warden to tell you when they reject a book or magazine sent to you, and to give the publisher or sender a copy of the rejection letter. Courts may require that the prison have a procedure so that you, or the publisher or sender, can appeal the decision.

Prison officials cannot censor material just because it contains religious, philosophical, political, social, or unpopular content. They can only censor material if they believe it may cause disorder or violence, or hurt a prisoner’s rehabilitation. In Greybuffalo v. Kingston, 581 F. Supp. 2d 1034 (W.D. Wisc. 2007) for example, a man in the Wisconsin Dept. of Corrections was punished for having a quote about freedom from a Native American chief in his cell, with the initials A.I.M. “A.I.M.” stands for the “American Indian Movement,” which is a civil rights movement dating back to the 1960s. The court ruled that it was unreasonable to think the material created any threat to prison security and found that the prison had violated Greybuffalo’s First Amendment rights. However, cases like this are rare because the Turner standard gives prison wardens broad discretion. Most courts will believe a prison official who says that a book or magazine creates a threat to prison security. It is important to remember that sometimes decisions are inconsistent among different courts.

Courts have allowed prisons to ban reading materials that advocate racial superiority and violence against people of another race or religion. Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. 1996); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). One court allowed special inspection of a prisoner’s mail after he received a book with a suspicious title, even though the book was just an economics textbook. Duamutef v. Holllins, 297 F.3d 108 (2d Cir. 2002). Another court decided that a prison could ban people from receiving the Physician’s Desk Reference in the mail because it contains information about drugs, even though the same book was available in the prison library. Munson v. Gaetz, 673 F.3d 630 (7th Cir. 2012).

Prison officials are normally allowed to ban an entire offending publication, as opposed to just removing the sections in question. Shabazz v. Parsons, 127 F. 3d 1246 (10th Cir. 1997). However, this is not always the case. In 2011, Louisiana prisons were not allowed to ban a Nation of Islam newspaper when objectionable pages could be deleted. Leonard v. Louisiana, 449 Fed. Appx. 386 (5th Cir. 2011).

Prisons must also abide by the Fourteenth Amendment, which guarantees equal protection of the laws to all citizens. This means that, for example, a prison cannot ban access to materials targeted to an Black audience if they do not ban similar materials popular among white people. See Section C of this Chapter for more information on equal protection claims.

Lots of cases about access to reading material involve sexually explicit materials. Some courts have said that people in prison have a right to non-obscene, sexually explicit material that is commercially produced (as opposed to, for example, nude pictures of spouses or lovers). Other courts have allowed total bans on any publication portraying sexual activity or featuring frontal nudity. Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999). One court found that blurred or censored nude photos could be barred. Woods v. Director's Review Comm., 2012 U.S. Dist. LEXIS 44805 (S.D. Tex. 2012). Bans on sexually explicit materials might go too far if they ban works of literature merely describing intercourse. In one case a court said a ban went too far when it removed works like Ulysses and Lady Chatterley’s Lover from a prison library. Couch v. Jabe, 737 F. Supp. 2d 561 (W.D. Va. 2010).

As Section I Part 5 of this Chapter explains, bans on lesbian, gay, bisexual, transgender, queer, or intersex (“LGBTQ+”) reading material that is not sexually explicit can also be challenged. However, materials deemed a threat to security or order, or likely to provoke anti-LGBTQ violence, can be lawfully withheld. One example of a case like this is Willson v. Buss, 370 F. Supp. 2d 782, 783 (N.D. Ind. 2005). In that case a court upheld a ban on “blatantly homosexual” materials to minimize prisoner on prisoner violence.

Requiring that Publications Come from Publishers

A prison can usually require that publications come directly from a publisher or bookstore, allegedly to limit smuggling and contraband. Bell v. Wolfish, 441 U.S. 520 (1979). However, some courts have found these safety concerns only apply to hardcopy books, and found that access to newspapers, magazines, and paperback books should not be restricted. In Hurd v. Williams, 755 F.2d 306 (3d Cir. 1985), for example, a court held that the security problem presented by the binding of hardback books seems inapplicable to newspapers and potentially the binding of other paperback books. And in Keenan v. Hall, 135 F.3d 1318 (9th Cir. 1998) a court noted that in Bell, the Supreme Court relied on the fact that prisoners were allowed other reading material besides hardback books (e.g. magazines and softback books), such that the compelling security interest that justified the publisher-only rule for hardback books might not justify a ban on other reading materials

2. Free Expression of Political Beliefs

You have the right to your political beliefs. This means that prison officials may not punish you simply because they disagree with your political beliefs. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971); Sczerbaty v. Oswald, 341 F. Supp. 571 (S.D.N.Y. 1972). However, the prison can limit your ability to express your beliefs. Any prison restriction on your right to express your beliefs must satisfy the Turner test.

Prison officials may be able to limit what you write and publish in prison, but not all of these limitations will pass the Turner standard. For example, the state of Pennsylvania had a prison rule that kept prisoners from carrying on businesses or professions in prison. The court found that the rule was not reasonably related to legitimate governmental interests when it kept Mumia Abu-Jamal from continuing his journalism career. Abu-Jamal v Price, 154 F.3d 128 (3d Cir. 1998). The court relied on evidence that (1) the rule was enforced against Mumia, at least in part, because of the content of his writing, and not because of security concerns; (2) his writing did not create a greater burden within the prison than any other prisoner’s writing; and (3) there were obvious, easy alternatives to the rule that would address security concerns. Another successful case is Jordan v. Pugh, 504 F. Supp. 2d 1109 (D. Co. 2007). In that case, a prisoner at the highest security federal prison in the country (ADX Florence) successfully challenged a Bureau of Prisons rule that said prisoners can’t publish under a byline or act as reporters. The prison said the rule was important to keep a prisoner who published material from becoming a “big shot” at the prison and getting too much influence over other prisoners. However, the prisoner had a former warden testify as an expert for him. The expert convinced the court that this “big shot” theory had no actual support and had been abandoned by prison administrators. It was important under Turner that ADX Florence’s rule was absolute—prisoners had no other way to publish articles.  

However, regulations limiting prisoners from publishing their work may be constitutional in other situations. In a case called Hendrix v. Evans, 715 F. Supp. 897 (N.D. Ind. 1989), the court held that a prison could stop a prisoner from publishing leaflets to be distributed to the general public about a new law because prisoners still had other ways to inform the public about the issue, such as by individual letters.

Often the prison will rely on “security concerns” to justify censorship. In Pittman v. Hutto, 594 F.2d 407 (4th Cir. 1979), the court held that prison officials did not violate the constitution when they refused to allow publication of an issue of a magazine prepared by people in prison because they had a reasonable belief that the issue might disrupt prison order and security.

Some courts will examine the “security” reason more closely than others to see if it is real or just an excuse. For example, in Castle v. Clymer, 15 F. Supp. 2d 640 (E.D. Pa. 1998), the court held that prison officials violated the constitution when they transferred a prisoner in response to letters he had written to a journalist. The letters mentioned the prisoner’s view that proposed prison regulations would lead to prison riots. The court found that because there was no security risk, the transfer was unreasonable.

Prison officials can ban petitions, like those asking for improvements in prison conditions, as long as prisoners have other ways to voice their complaints, like through the prison grievance system. Duamutef v. O’Keefe, 98 F.3d 22 (2d Cir. 1996). Officials can stop a prisoner from forming an association or union of prisoners, because the courts have decided that it is reasonable to conclude that such organizing activity would threaten prison security. Brooks v. Wainwright, 439 F. Supp. 1335 (M.D. Fl. 1977). In one very important case, the Supreme Court upheld a prison’s ban on union meetings, solicitation of other prisoners to join the union, and bulk mailings from the union to prisoners, as long as there were other ways for prisoners to complain to prison officials and for the union to communicate with prisoners. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).

Finally, lots of times prisons describe organizing among people in prison as “gang activity” and courts are usually pretty deferential to those security concerns. In one case, a person in prison was punished for “gang activity” for having a handwritten copy of material from a book about the Black Panther Party, even though the book itself was checked out from the prison library. Toston v. Thurmer, 689 F.3d 828 (7th Cir. 2012).

When speech is directed outside the prison, restrictions may be easier to strike down. For example, after Mumia Abu-Jamal prerecorded a commencement speech for a college, Pennsylvania passed a law to prohibit similar speeches in the future, based on “revictimization.” This is the idea that victims of personal injury crimes are harmed when people in prison exercise the right to free speech. A court said the law violated the First Amendment because it limited speech based on its content. Abu-Jamal v. Kane, 105 F. Supp. 3d 448 (M.D. Penn. 2015).

3. Limits on Censorship of Mail

The First Amendment protects your right to send and receive letters. Many years ago, prison officials were required to meet a strict test to justify their needs and interests before courts would allow them to interfere with mail. Today, the court still uses this test for mail prisoners send out of the prison but allows prison officials more control over mail that goes into the prison.

a. Outgoing Mail

In order to censor the letters you send to people outside prison, prison officials must be able to prove that the censorship is necessary to protect an “important or substantial” interest of the prison. Examples of important interests are: maintaining prison order, preventing criminal activity, and preventing escapes. The prison officials must be able to show that their regulations are actually “necessary and essential” to achieving this important goal, not just that the regulation is intended to achieve that goal. The regulations cannot restrict your rights any more than is required to meet the goal. Procunier v. Martinez, 416 U.S. 396 (1974). This test is better for you than Turner, but unfortunately it only applies to outgoing mail.

Under the Martinez rule, a prison official cannot censor your mail just because it makes rude comments about the prison or prison staff. Bressman v. Farrier, 825 F. Supp. 231 (N.D. Iowa 1993). In one case, Harrison v. Institutional Gang of Investigations, No. C 07-3824, 2010 U.S. Dist. LEXIS 14944 (N.D. Cal. Feb. 22, 2010), Marcus Harrison sued Pelican Bay prison officials after they took his outgoing mail because it included information about the Black August Memorial, the New Afrikan Collective Think Tank, and the George Jackson University. The prison argued that the material was related to a prison gang called the Black Guerilla Family. Mr. Harrison won, and the court ruled that the prison had failed to make a substantial showing that the material was likely to incite violence or related to a prison gang.

However, some restrictions on outgoing mail are allowed. Courts have allowed bans on “letter kiting,” which means including a letter from someone else with your letter or sending a letter to someone in an envelope with another prisoner’s name. Malsh v. Garcia, 971 F. Supp 133 (S.D.N.Y. 1997). Some prisons and jails have imposed rules limiting prisoners to writing only postcards, as opposed to closed letters. In 2010 the ACLU brought a First Amendment challenge to this type of policy at the El Paso County Jail in Arizona, and the jail quickly agreed to change the rule. Martinez v. Maketa, No. 10-CV-02242, 2011 WL 2222129 (D. Co. June 7, 2011).

In one case, a court upheld a ban on gang symbols in outgoing mail on grounds of a governmental interest in rehabilitation. The court gave “substantial deference” to prison officials to decide what is a gang symbol. The court also said that the outgoing mail was not “constructive, wholesome contact” that would foster reintegration into society. Koutnik v. Brown, 456 F.3d 777 (7th Cir. 2006).

If a prisoner has used the mail in the past to attempt to commit a crime or harass someone, that may be an important factor. So for example, in Hammer v. Saffle, No. 91-7038, 1991 U.S. App. LEXIS 28730 (10th Cir. Nov. 29, 1991), the court upheld a prison rule limiting a prisoner to sending mail to people on an approved list after he was found to have used the mail to make death threats and extort money.

Courts usually allow guards to read or look in your outgoing mail, especially for contraband. Courts explain that looking in a letter does not violate the First Amendment, because it is different from censorship. Altizer v. Deeds, 191 F.3d 540 (4th Cir. 1999). Courts have said that a visual inspection is closely related to the legitimate interest of a prison in preventing prisoners from disseminating offensive or harmful materials. Witherow v. Paff, 52 F.3d 264 (9th Cir. 1995).

Courts have also generally upheld limitations on the amount of postage you can have at one time and the amount of free postage they will provide to prisoners who cannot afford it for non-legal mail. Johnson v. Goord, 445 F.3d 532 (2d Cir. 2006).

In one case, a court held that the First Amendment was not violated by a rule prohibiting solicitation of pen pals. The court accepted the prison’s argument that bulk mailings to find pen pals could be used for scams. Perry v. Sec'y, Fla. Dep't of Corr., 664 F.3d 1359 (11th Cir. 2011).

b. Incoming Mail

Censorship of incoming mail is governed by the Turner test. As you learned in Section A of this chapter, the Turner test requires that the regulation in question be “reasonably related” to a “legitimate” government interest. This means that while your rights are still protected to some extent, prisons can put a lot of restrictions on incoming mail. Courts have allowed restrictions on incoming packages on the grounds that they can easily hide contraband and looking through them would use up too many prison resources. Weiler v. Purkett, 137 F.3d 1047 (8th Cir. 1998). Items that by themselves are not a threat to prison security can also be taken by prison officials if they contain contraband. Steffey v. Orman, 461 F.3d 1218 (10th Cir. 2006). Courts have also allowed restrictions on mail between prisoners. Turner v. Safley, 482 U.S. 78 (1987).

A prison must follow special procedures to censor your mail. You should be notified if a letter addressed to you is returned to the sender. Your right to be notified is a “due process” right, recognized by Procunier v. Martinez. Due process rights are discussed later in this Chapter, in Sections D and G. The author of the letter sent to you should have an administrative avenue to challenge the censorship. The official who responds to the administrative challenge cannot be the person who originally censored the mail in question. In most places, the same rule applies to packages, not just letters. Bonner v. Outlaw, 552 F.3d 673 (8th Cir. 2009).

Some prisons and jails have imposed rules limiting prisoners to receiving only postcards (different from the outgoing-mail rule discussed above). Some courts have held that these policies are unconstitutional under Turner and serve no valid penological objectives. Prison Legal News v. Columbia County, 942 F. Supp. 2d 1068 (D. Or. 2013). But other courts have allowed postcard-only policies on the basis of reducing contraband. Althouse v. Palm Beach County Sheriff’s Office, No. 12-80135-CIV-MARRA, 2013 U.S. Dist. LEXIS 18602 (S.D. Fla. Feb. 11, 2013). If you are challenging a postcard-only policy for incoming mail, thoroughly consider the Turner factors from Section A, and make sure the prison backs up any claims that a postcard-only policy is “rationally related” to enhanced security.

One delay or some other relatively short-term disruption in mail delivery that is not related to the content of your letters does not violate the First Amendment. Sizemore v. Williford, 829 F.2d 608 (7th Cir. 1987).

c. Legal Mail

Special rules apply to mail between you and your attorney, and to mail you send to non-judicial government bodies or officials. This mail is called “privileged mail,” “legal mail,” or “special mail” and is protected by your constitutional right to seek legal counsel as well as by the “attorney-client privilege.” The attorney-client privilege means that the things you write or say to your attorney, or they write or say to you, are secret.

Prisons officials cannot read your legal mail. But they can open it in your presence to inspect it for contraband. Castillo v. Cook County Mail Room, 990 F.2d 304 (7th Cir. 1993); Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995). If they open it outside your presence, this may violate the First Amendment, because it chills your right to communicate confidentially with your lawyer. Al-Amin v. Smith, 511 F.3d 1317 (11th Cir. 2008), Jones v. Brown, 461 F.3d 353 (3d Cir. 2006).

Even if a prison restricts most of your correspondence with other prisoners, you may be allowed to send and get mail from a prisoner who is a jailhouse lawyer. For more information about this, read Section G about your right to access the court.

Different prisons have different procedures for marking incoming and outgoing legal and special mail. Often, incoming mail from an attorney must bear the address of a licensed attorney and be marked on the envelope as “legal mail.” If not, it will not be treated as privileged. Some prisons place even more requirements on you and require you to request ahead of time that legal mail be opened only in your presence, and your attorney must have identified themself to the prison in advance. U.S. v. Stotts, 925 F.2d 83 (4th Cir. 1991); Boswell v. Mayor, 169 F.3d 384 (6th Cir. 1999); Gardner v. Howard; 109 F.3d 427 (8th Cir. 1997).

4. Access to the Telephone

Your right to talk with friends and family on the telephone gets some protection under the First Amendment. However, courts do not all agree on how much telephone access prisoners must be allowed. Prisons may limit the number of calls you make. The prison can also limit how long you talk. Courts disagree on how strict these limits can be. Most courts agree that prison officials can restrict your telephone privileges in “a reasonable manner.” McMaster v. Pung, 984 F.2d 948 (8th Cir. 1993).

There is no right to private telephone calls with family and friends. Some courts have said this is because people in prison do not have a reasonable expectation of privacy under the Fourth Amendment. U.S. v. Balon, 384 F.3d 38 (2d Cir. 2004). See Section E of this Chapter for more information about your privacy rights under the Fourth Amendment.

Other courts have held that prisoners who are told that they are being monitored consent to giving up their privacy. U.S. v. Morin, 437 F.3d 777 (8th Cir. 2006); U.S. v. Footman, 215 F.3d 145 (1st Cir. 2000). In other words, if there is a sign under the phone saying that “all calls are monitored” or it’s in the prison’s manual or its policies, it doesn’t violate your rights for the prison to listen in.

One exception is that prison officials cannot listen in on calls with your attorney. If there is a process in your prison for requesting an unmonitored legal call and the prison still monitors them, courts may find that your expectation of privacy has been violated. Robinson v. Gunja, 92 Fed. Appx 624 (10th Cir. 2004). However, if you don’t follow your prison’s procedure for making a legal call, and simply use the regular phone, some courts will conclude that you waived your attorney-client privilege by having the conversation after you were “told” of the monitoring by the sign or prison policies.

Prisons are generally allowed to place more severe restrictions on telephone access for prisoners who are confined to Special Housing Units for disciplinary reasons as long as they can show that these restrictions are reasonably related to legitimate security concerns about these prisoners. You can also lose telephone access as punishment for breaking prison rules.

In general, prisons are allowed to limit the number of different people whom you can call, and to require you to register the names of those people on a list to be approved by the prison. Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996); Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).

The prison can make you pay for your telephone calls. This can be a serious burden on prisoners and their family members, especially when states enter into private contracts with phone companies which force prisoners or their families to pay much more for their phone calls than what people pay outside of prison. Challenges to these types of contracts or to excessive telephone charges in general have not been successful. See Arsberry v. Illinois, 244 F.3d 558 (7th Cir. 2001); Walton v. New York State Dept. of Correctional Services, 869 N.Y.S.2d 661 (2008). But at least one court has held that this type of arrangement might violate prisoners’ (and their loves ones’) First Amendment rights. Byrd v. Goord, No. 00-cv-2135 U.S. Dist. LEXIS 18544 (S.D.N.Y. Aug. 29, 2005).

5. Access to the Internet

People in prison do not have a right to computers or Internet access. Carmony v. County of Sacramento, No. CIV S-05-1679, 2008 U.S. Dist. LEXIS 11137 (E.D. Cal. Feb. 14, 2008). The Bureau of Prisons has a system called the Trust Fund Limited Inmate Computer System (TRULINCS) which makes a form of e-mail available to prisoners. But even when a prison system allows e-mail generally, they can still restrict it without violating the First Amendment. In one unpublished decision, Solan v. Zickefoose, a person in prison was barred from using TRULINCS e-mail because he was a computer expert and was previously punished for misusing computers. The Third Circuit held that the restriction passed the Turner test because there were other alternatives to e-mail, like letters, visits, or the telephone. Solan v. Zickefoose, 530 Fed. Appx. 109 (3d Cir. 2013). Courts have also accepted arguments that surveillance of TRULINCS uses up resources so saving money is a reason to restrict e-mail access. Gatch v. Walton, No. 13-cv-1168-MJR, 2013 U.S. Dist. LEXIS 171940 (S.D. Ill. Dec. 5, 2013).

Some people in prison may try to tell people outside prison to post things on the Internet. An example would be telling someone to make a Facebook or Twitter post. Several states have laws banning this kind of indirect access to the Internet. Texas, for example, prevents prisoners from using any social media through a third party. Courts have taken different approaches to the question. One district court in Arizona held a third-party social media access law unconstitutional. Canadian Coalition Against the Death Penalty v. Ryan, 269 F. Supp. 2d 1199 (D. Ariz. 2003). There are not many cases on this issue.

Using social media like Facebook directly from prison can often lead to severe disciplinary actions and loss of privileges including loss of telephone, visitation, and good time. Those penalties can be just as severe if you use a third party to post online and your state bans this, so it is important to check whether your state bans third-party social media use before having someone post for you.

Some prisons ban people in prison from receiving printouts of Internet pages in the mail. In one case, Clement v. Cal. Dep’t. of Corrections, a prisoner at Pelican Bay State Prison successfully challenged a policy banning materials printed from the Internet. The prison defended the ban by claiming that printed Internet materials increased the burden of mail volume and could be used to send encoded messages. However, the Ninth Circuit held that those concerns were arbitrary. Clement v. Cal. Dep't of Corr., 364 F.3d 1148 (9th Cir. 2004). Other courts have held similarly. However, courts have also upheld such policies. Starr v. Coulombe, 368 Fed. Appx. 156 (1st Cir. 2009).

6. Your Right to Receive Visits from Family and Friends and to Maintain Relationships in Prison.

If you are being denied visitation in prison, there are several different claims you can make. You can argue that denying you visits or restricting your visits violates your right to freedom of association under the First Amendment, your right to be free from cruel and unusual punishment under the Eighth Amendment, and your right to substantive due process under the Fifth and Fourteenth Amendments. Under each of these claims, the prison will probably respond by claiming that the restriction you challenge is related to maintaining order and security. If you bring your claim under the First Amendment or the due process clause, the court will look to the Turner test to see if the prison rule is valid. If you bring your claim under the Eighth Amendment, the court will look at the standard described in Section F of this Chapter. You can make all of these arguments in one case.

a. Access to Visits

In 2003, the Supreme Court considered how much prisons can restrict visitation in a case called Overton v. Bazzetta, 539 U.S. 126 (2003). The case involved a Michigan Department of Corrections’ rule that prohibited visits by kids other than a prisoner’s sibling or child. The rule also said that former prisoners couldn’t visit current prisoners. Lastly, the rule said that any prisoner who had two drug violations in prison would have all of their visitation privileges suspended for two years. A group of prisoners and their friends and family challenged the rule based on all of the First, Eighth, and Fourteenth Amendment theories mentioned earlier. The Court stated that the right to “intimate association” is not completely terminated by imprisonment and considered the regulations under the Turner standard. The Court decided that all of these prison rules were reasonably related to valid penological interests, so they passed the Turner test. The Court accepted the prison’s explanation that allowing only children and siblings under the age of 18 protects minors from misconduct, reduces the number of visitors, and minimizes disruption by children. The prison rationalized preventing former prisoners from visiting as a way to maintain prison security and prevent future crime. It explained restricting visitation for prisoners with two drug violations as a way to discourage drug use. Such prisoners, the Court explained, are still able to write or call people, so they were not completely cut off from their friends and family. In considering the Eighth Amendment claim, the Court said that the two-year ban was “not a dramatic departure from accepted standards for conditions of confinement [and it did not] create inhumane prison conditions, deprive prisoners of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur.”

Under this precedent, it is hard to successfully challenge restrictions on visitation. In general, limitations on a prisoner's visitation rights are acceptable if the prison has valid “penological objectives such as rehabilitation and the maintenance of security and order.” Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984). See also Pitts v. Gramiak, No. 5:14-CV-43-MTT-CHW, 2014 U.S. Dist. LEXIS 65400 (M.D. Ga. May 13, 2014); Lynott v. Henderson, 610 F.2d 340 (11th Cir. 1980); King v. Caruso, 542 F. Supp. 2d 703 (E.D. Mich. 2008). The Overton case didn’t overrule the old cases about visit restrictions, because most of the old cases also used the Turner standard, or something like it. But most courts don’t look very critically at restrictions on visitation.

There are a few exceptions. Prisoners who are subject to complete bans on visits probably have the best chance of a successful challenge. In Hallal v. Hopkins, 947 F. Supp. 978 (S.D. Miss. 1995) for example, a prisoner and his wife filed a pro se lawsuit challenging conditions and policies at the Madison County Detention Center, including a complete ban on visits by children under twelve. The court ordered an evidentiary hearing to decide the factual basis for the ban, and whether it was justified by security needs. And in one recent case, Ryerse v. Caruso, No. 1:08-cv-516, 2009 U.S. Dist. LEXIS 82839 (W.D. Mich. July 20, 2009), a prisoner, his mother and his children sued over a prison policy that permanently denied him all visits after he was convicted of smuggling contraband into the prison. The Court allowed the case to move forward, citing the Supreme Court’s statement in Overton v. Bazetta that a permanent ban on all visitation might be unconstitutional.

Courts probably will allow a ban on visitation by minors if the prisoner's crime involved minors, Morton v. Hall, 455 F. Supp. 2d 1066 (C.D. Cal. 2006), and courts also allow transferring a person to a prison far from home or family, even though this makes visitation very difficult. Olim v. Wakinekona, 103 S. Ct. 1741 (1983). One court allowed temporary suspension of visits of minors after a person in prison had a sexual phone call with his wife when his child was on the phone (even though the prisoner claimed that he did not know). Dunn v. Castro, 621 F.3d 1196 (9th Cir. 2010). Also, prisons can require visitors to be pre-approved and can restrict the type of contact you have during a contact visit, like how close you can sit and when you can hug or kiss.

In another case, a person in prison was denied visitation privileges for two years after a guard claimed he saw the prisoner put something in his mouth and swallow. Even though a contraband search turned up nothing and he was not charged with a disciplinary offense, the court dismissed his case challenging the visitation ban. Williams v. Ozmint, 716 F.3d 801 (4th Cir. 2013).

Visitation Rights of LGBTQ+ People in Custody

LGBTQ+ people can also bring challenges if they are subjected to more restrictive visitation policies than other people in custody. For more background, see Section I Part 1 of this Chapter.

Other Issues

Many courts agree that a blanket policy of strip-searching prisoners after contact visits is constitutional. Wood v. Hancock County Sheriff's Dept., 354 F.3d 57 (1st Cir. 2003). See Section E of this Chapter for more details about strip searches.

A new issue is the use of video visitation systems, which are now being used in over 500 prisons around the country. Where this technology is not yet in place, courts have not found that people in prison have a right to video visitation. Young v. Scott, No: 2:16-cv-44-FtM-38MRM, 2017 U.S. Dist. LEXIS 135598 (M.D. Fla. Aug. 24, 2017).

The use of video conferencing has also made people worry that prisons might use it as an excuse to limit in-person visitation. We expect more cases about this issue in the future.

Some prisons are employing scanning technologies for prisoners and visitors. Challenges against the use of these technologies are unlikely to succeed, so long as the devices are used to achieve a government interest (such as finding contraband) and are minimally invasive and not used to harass. In one case, Zboralski v. Sanders, No. 06 C 3772, 2010 U.S. Dist. LEXIS 79362 (N.D. Ill. July 29, 2010), a visitor sued after receiving a ‘Rapiscan’ backscatter x-ray radiation device in order to visit her husband. The court found no Fourth Amendment violation because there was little intrusiveness and no evidence of harm by the search, weighed against an interest in screening visitors.

b. Caring for Your Child in Prison

If you have children, being incarcerated almost always means being separated from them, and this is likely to impose a substantial burden on your relationship. There have not been many court cases about your right to care for your child while you are in prison. In general, states do not allow incarcerated mothers or fathers to care for their children, even infants. However, some states have tried to make parenting in prison easier.

No matter what state you are in, you can take steps to maintain your relationship with your child. If possible, you should privately arrange to have someone you know care for your children and plan visiting times. If a family member is willing but cannot afford to care for your child, they may be able to get assistance from the state. If your child is in foster care, state statutes often require the foster care agency to actively support your parental relationship by updating you on your child’s development, allowing you to participate in planning for your child’s future and health, and bringing your child to visit (unless the child lives in another state).

As a prisoner, however, you face the possibility that your parental rights could be “terminated.” The federal Adoption and Safe Families Act requires the state to move to “terminate,” or end, your parental rights if your child has been in foster care for 15 of the last 22 months. There are exceptions if the child is being cared for by a relative or there is a good reason why termination is not in the best interests of the child. 42 U.S.C. § 675(5)(E).

The Supreme Court held in Santosky v. Kramer, 455 U.S. 745 (1982), that in order to terminate your parental rights, the state must show that you are an unfit parent by “clear and convincing evidence.” What it means to be an unfit parent varies from state to state, so you should check your state’s statutes. Many states have held that the fact that you are in prison does not necessarily make you unfit. An example of some of these cases are: In re R.I.S., 614 Pa. 275 (Pa. 2011); In re Interest of Josiah T., 17 Neb. App. 919 (Neb. 2009); B.C. v. Florida Dept. of Children & Families, 887 So.2d 1046 (Fla. 2004); In re Parental Rights of J.L.N., 118 Nev. 621 (Nev. 2002). However, states don’t like long term foster care, so if your sentence is long (more than 5 years) you may be in danger of having your parental rights terminated unless you can find a private placement for your child.

You may want to write to the judge to request to be present at any court hearings regarding your child’s care, including foster care status hearings and parental termination proceedings. Although in Lassiter v. Department of Social Services of Durham County North Carolina, 453 U.S. 927 (1981) the Supreme Court said there is no constitutional right to a lawyer at parental termination proceedings, most states do guarantee a lawyer, so you should request one. The American Bar Association maintains a list of right to counsel statutes. For some examples, you can read Texas Family Code Annotated § 107.013(a)(1); Arkansas Code Annotated § 9-27- 316(h)(1) (Supp. 2003); and In re B., 285 N.E.2d 288 (N.Y. 1972).

To protect your parental rights, you should participate in planning for your child as much as possible, contact your child’s caseworker frequently if your child is in foster care, make efforts to arrange visiting times, and keep a detailed record of all visits, phone calls, and letters between you and your child or related to your child’s care.

You should also participate in any parenting classes or treatment programs at your facility that will help show that you will be able to be a good parent when you get out, especially if they are suggested by your child’s caseworker. When you go to court, you can emphasize this participation to try to get the court to look beyond your crime.

B Your Right to Practice Your Religion

Your freedom of religion is protected by the First and Fourteenth Amendments of the U.S. Constitution and by several federal statutes. There are five ways you can challenge a restriction on your religious freedom: the Free Exercise Clause and the Establishment Clause of the First Amendment, the Fourteenth Amendment, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). They are each discussed below.

1. Free Exercise Clause

The first way to challenge violations of your right to religious activity is through the Free Exercise Clause of the First Amendment. The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The second half of that sentence is known as the Free Exercise Clause, and it protects your right to practice your religion.

To make a free exercise claim you must be able to show the court that your belief is both religious and sincere. Different courts have different definitions of “religion,” but they generally agree that your beliefs do not have to be associated with a traditional or even an established religion to be “religious.” Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (3d Cir. 1981); Love v. Reed, 216 F.3d 682 (8th Cir. 2000). It is important to understand how “religion” is defined in your District or Circuit court before bringing your case.

Courts judge your religious “sincerity” by looking at how well you know the teachings of your religion and how closely you follow your religion’s rules. However, you don’t have to follow every single rule of your religion. And your belief doesn’t have to be the same as everyone else’s in your religion. LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991). Courts will usually listen to what a prison chaplain or clergyperson says about your religious sincerity. Montano v. Hedgepeth, 120 F.3d 844 (8th Cir. 1997).

If a court determines that your belief is both religious and sincere, it will next apply the Turner test. This means that the court will balance your constitutional right to practice your religion against the prison’s interests in order, security, and efficiency. Prison officials cannot prohibit you from practicing your religion without a reason. To win, you will have to show that a restriction is not “reasonably related to a penological interest,” under the Turner test described in Section A. Courts often follow the decisions of prison officials, but any restriction on the free exercise of religion is still required to meet the four-part Turner test before it will be upheld. In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), the Court applied the Turner test, and allowed a prison to limit worship services to specific days because prisoners were still offered other means of practicing their religion.

2. Establishment Clause

The first half of the First Amendment sentence quoted above is called the Establishment Clause, and it means that the government can’t encourage people to be religious or choose one religion over another. Different Circuit Courts currently rely on two different legal tests in deciding whether a prison action or rule that endorses or supports a particular religion violates the constitution.

Under both tests, you must first show that the prison or its officials acted in a way that endorsed, supported, or affiliated themselves in some way with a religion.

The first test was developed in Lemon v. Kurtzman, 403 U.S. 602 (1971). This test says that to be valid under the Constitution, a regulation or action 1) must be designed for a purpose that is not religious; 2) cannot have a main effect of advancing or setting back any religion; and 3) cannot encourage excessive government entanglement with religion.

The second test, developed in Lee v. Weisman, 505 U.S. 577 (1992), can be stated more simply: it prohibits the government from forcing you to support or participate in any religion.

• If you think you may have an establishment clause claim, the first thing you should do is research in your law library which test your Circuit court follows, and read a few cases applying that test.

3. Fourteenth Amendment Protection of Religion

Another source of protection for religious practice is the Fourteenth Amendment. It provides all individuals, including prisoners, with “equal protection under the law.” This means that a prison cannot make special rules or give special benefits to members of only one religion or group of religions without a reason. We talk about the legal standard to show discrimination in detail in Section C. You should read that section carefully if you think you might have a religious discrimination claim.

The prison can treat members of one religion differently if it has a reason that isn’t about the religion. Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990). For example, it is OK for a prison to provide better facilities and services to a religion with more followers. Cruz v. Beto, 405 U.S. 319 (1972). A prison can have full-time chaplains for religions with more followers and not for other, less popular religions. Hartmann v. Cal. Dep't of Corr. and Rehab., 707 F.3d 1114 (9th Cir. 2013).

4. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA)

In addition to the protections provided by the Constitution, there are two federal statutes that protect the religious rights of prisoners: The Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Both the RFRA and RLUIPA provide prisoners with more protection of religious freedom than the First Amendment. Specifically, the RFRA states that the government can only “substantially burden a person’s exercise of religion” if two conditions are met. First, the government restriction must be “in furtherance of a compelling governmental interest.” Second, the government must prove that its restriction is the “least restrictive means of furthering that compelling interest.”

This is a much stricter test than the Turner standard discussed earlier in this chapter. However, the Supreme Court struck down the RFRA as it applies to state prisoners in a 1997 case, City of Boerne v. Flores, 521 U.S. 507 (1997). This means that you cannot use the RFRA if you are a state prisoner.

The Supreme Court did not overrule the RFRA as it applies to the federal government, and most courts have held that you can use it to sue federal agencies like the Federal Bureau of Prisons. If you are a federal prisoner and you think your right to practice your religion has been violated, you can write a separate claim in your complaint under the Religious Freedom Restoration Act.

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to deal with the fact that state prisoners could no longer use the RFRA. The standard is the same. If a prison cannot show that their rule passes both parts of this test, a court will find that they have violated the RLUIPA.

The RLUIPA is different than the RFRA only in that it applies only to programs or activities that receive money from the federal government. This financial assistance gives Congress the right to pass laws that it might not otherwise be able to pass. In 2005, the U.S. Supreme Court found RLUIPA constitutional in Cutter v. Wilkinson, 544 U.S. 709 (2005). The Court held that facilities that accept federal funds cannot deny prisoners the necessary accommodations to engage in activities for the practice of their own religious beliefs.

All state correctional systems accept federal funding, so it is a good idea to bring a claim under RLUIPA if you believe that your right to exercise your religion has been unfairly restricted.

5. Common Issues Related to Religious Accommodations

The following are brief descriptions of the types of issues that often come up in cases about prisoners’ right to religious freedom.

• Religious services and meetings with clergy: You have the right to meet with a religious leader and to attend religious services of your faith. You may meet with a clergyperson of a particular faith even if you weren’t a member of that faith before entering prison. However, courts have allowed prisons to restrict your rights based on the prison’s interests in order, security, and efficiency. The bottom line is that while you are not entitled to unlimited meetings, you have a right to a “reasonable opportunity” to attend services or meet with a religious leader. Courts have upheld interruptions in religious participation as long as they were not “substantial.”

• Personal grooming and hygiene: The Supreme Court in 2015 held that a prison policy preventing a Muslim prisoner from growing a half-inch beard in accordance with his beliefs violated RLUIPA. Holt v. Hobbs, 135 S. Ct. 853 (2015). A short beard could not reasonably be used to hide contraband. Some courts have since gone further than Holt to allow four-inch facial hair. Ali v. Stephens, 822 F.3d 776 (5th Cir. 2016). But courts have also accepted limits on hair growth. The Eleventh Circuit upheld a policy preventing people in prison following Native American religion from keeping hair long and unshorn. The court found that a short-hair policy was the least-restrictive means of keeping costs and risks down, including identification and contraband. Knight v. Thompson, 797 F.3d 934 (11th Cir. 2015). Usually a prison will say that its grooming policies serve interests in health and prisoner identification. However, if there is an alternative way to maintain those security concerns, some courts have found that the regulation might infringe on the prisoner’s religious practice. Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. 1990); Smith v. Ozmint, 578 F.3d 246 (4th Cir. 2009).

• Headwear: Prior to the passage of RLUIPA, which provides more protection than the First Amendment, courts generally accepted prison regulations restricting religious headwear in common areas. Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir. 1987). However, under RLUIPA courts have upheld the right to wear religious headwear such as kufi despite prison objections based on contraband or costs. Ali v. Stephens, 822 F.3d 776 (5th Cir. 2016). You may challenge a headwear accommodation if it is not enforced equally against all religions. Wilson v. Moore, 270 F. Supp. 2d 1328 (N.D. Fla. 2003).

• Special diets: Special religious diets often raise issues of cost, and sometimes also raise questions related to the Establishment Clause, which prohibits endorsement of one religion above others. Prisons cannot make prisoners choose between religious practice and adequate nutrition. Nelson v. Miller, 570 F.3d 868 (9th Cir. 2009). Courts have often required prisons to accommodate prisoners’ religious diets, but usually allow them to do so in a way that is least costly or difficult for them. Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997); Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1320 (10th Cir. 2010); Makin v. Colorado Dept. of Corrections, 183 F.3d 1205 (10th Cir. 1999). One court allowed a case to proceed on whether Native American prisoners had a right to buffalo meat and other traditional foods for a once-a-year powwow. Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014). If there is an alternative way for a prisoner to exercise his dietary beliefs, like by choosing vegetarian options, courts will usually not find a violation. Williams v. Morton, 343 F.3d 212 (3d Cir. 2003). One court upheld the right not to drink water during religious fasting, in the case of a Muslim prisoner who was fasting during Ramadan but was punished for refusing a urine test. The court held that the prison had to move the urine test to non-fasting hours. Holland v. Goord, 758 F.3d 215 (2d Cir. 2014).

• Name changes: People who convert in prison may want to change their name. Prisoners have a First Amendment right to change their names for religious reasons, but prisons may require them to use both their old and new names. In Hakim v. Hicks, 223 F.3d 1244 (11th Cir. 2000), for example, a court decided that a prisoner’s rights had not been violated when his religious name was placed on the back of his identification card. Other cases like this are Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990) and Imam Ali Abdullah v. Cannery, 634 F.2d 339 (6th Cir. 1980). The procedure for getting a name change is usually controlled by state law, rather than the Constitution. More information about name changes is available in Section 1 of this chapter, on the rights of LGBTQ+ prisoners.

Courts have addressed many other issues related to religion. In Native American Council of Tribes v. Weber, 750 F.3d 742 (8th Cir. 2014), a court held that a blanket ban on tobacco use violated the rights of Native American religious practitioners to use tobacco in ceremonies. In Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999), a court held that the prison could ban a piece of religious mail because it had the potential to produce violence by advocating racial or religious hatred. In Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998), the court decided that a law requiring DNA sampling did not violate a prisoner’s religious rights because it applied to all prisoners. The right to possess religious objects is discussed in Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001). Some objects can be prohibited based on interests of safety, security, and discipline, such as in McFaul v. Valenzuela, 684 F.3d 564 (5th Cir. 2012) where a court allowed a prison to ban neo-Pagan medallions.

C Your Right to be Free from Discrimination

The Fourteenth Amendment to the Constitution guarantees everyone “equal protection of the law.” Equal protection means that a prison cannot treat some prisoners differently than it treats others without a reason. How good of a reason the prison needs varies depending on what kind of discrimination is at issue. The courts are much more critical of laws that discriminate against people based on “suspect classifications.” The most important suspect classification is race. For that reason, courts are very strict in reviewing laws that treat people of one race differently than another. Such laws are subjected to a type of review called “strict scrutiny” and are frequently struck down.

Other suspect classifications include ethnicity and religion. Suspect classifications target groups that are (1) a “discrete or insular minority,” (2) have a trait they cannot change, also called an “immutable trait,” (3) have been historically discriminated against, and (4) cannot protect themselves through the political process. The Supreme Court discussed each of these factors in a case called City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). In that case, the Supreme Court decided that people with developmental disabilities are not entitled to suspect classification status.

The Supreme Court has applied an intermediate level of scrutiny to groups who need more protection than usual, but not quite as much as the most suspect classifications. Some courts refer to such groups as “quasi-suspect.” Sex and/or gender is a “quasi-suspect” classification. Quasi-suspect classifications are subject to an intermediate level of scrutiny that is sometimes called “heightened scrutiny.” Some lower courts have found that discrimination against LGBTQ+ status is also subject to heightened or intermediate scrutiny, but the Supreme Court has not yet weighed in. For more discussion about the equal protection rights of LGBTQ+ people, visit Section I Part 1.

1. Freedom from Racial Discrimination

Racial discrimination and racial segregation by prison authorities are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966). For example, prisons cannot prevent Black prisoners from subscribing to magazines and newspapers aimed at a Black audience. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Nor can they segregate prisoners by race in their cells. Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994). The Supreme Court stated that racial segregation in prison cannot be used as a proxy (a stand-in) for gang membership or violence without passing “strict scrutiny”—which is defined several paragraphs below and in the chart on the previous page.

The easiest type of equal protection claim to bring is a challenge to a policy that is explicitly race based, for example, if a prison has a written policy of segregating prisoners by race. It is rare to come across written policies of that nature these days. More likely, you will be challenging a policy or practice that doesn’t actually say anything about race but has the effect of treating Black prisoners different than white prisoners, for example. For this type of claim there are two essential points to prove: (1) the prison rule had the effect of discriminating against you and (2) discriminatory purpose or intent was at least part of the reason for the rule. David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988).

The first part is usually easier to prove: in a challenge to an unwritten segregation policy, for example, you could show that all the prisoners on your unit are Black. Proving intent to discriminate is harder, because prison officials will often come up with various excuses to explain away what looks like discrimination. You will need to show that you are being treated differently because of your race. If you have direct proof of discriminatory intent—like the warden who decides which unit prisoners go to has made racist comments—you should include that in your complaint. However, if you don’t have any direct proof of discriminatory intent, you can argue that discrimination is the only possible reason for the treatment you are experiencing. For example, a federal court in Alabama decided that the Constitution had been violated because it could not find any non-discriminatory reason for the fact that Black people consistently made up a greater proportion of those detained in Alabama’s segregation unit than those detained in Alabama’s prisons generally. McCray v. Bennett, 467 F. Supp. 187 (M.D. Ala. 1978).

However, proving a case like this is not easy, and will probably require expert witnesses and statistical analysis. One great example is Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 1991). In that case, the prisoners showed through statistical data that the prison was made up of mostly Black and Latino men, but white prisoners received better housing and job assignments and had better disciplinary hearing outcomes for similar infractions. The Court decided that discriminatory intent was the only possible explanation for what was going on in the prison. On the other hand, in Betts v. McCaughtry, 827 F. Supp. 1400 (W.D. Wisc. 1993) a different court held that prison officials did not violate the Constitution when they censored certain cassettes, most of which were Black musicians, because there was not enough evidence that they intended to discriminate against Black people.

Even if you successfully prove discriminatory effect and intent, courts may allow racial segregation or discrimination if prison officials can show that it passes “strict scrutiny.” Strict scrutiny is another two-step process where the prison officials will have to show that the segregation or discrimination is being done to advance a “compelling government interest” and the way the prison is achieving that interest is “narrowly tailored.” Johnson v. California, 543 U.S. 499 (2005). This means that the prison must have a very good reason for the rule and the rule must directly fix the problem that the rule is designed to solve.

Johnson is an important case to read if you are considering a segregation claim. In Johnson, the Supreme Court considered a California policy that segregated prisoners by race for the first 60 days of any transfer. The Court decided in Johnson that the prison’s concern about gang violence was a compelling government interest. (Courts often find “gang violence” to be a very good reason for rules.) However, the Court said that California’s rule did not address the problem of gangs and violence in a way that was narrowly tailored because segregating prisoners without looking at their disciplinary history or gang connections affected all prisoners, not just those who were in gangs or who were violent. The Court stated the prison should have made a case-by-case decision about who to segregate. The Court also said that not all gang violence happens because people of different races are housed together, so the rule was not narrowly tailored.

A vague fear of racial violence is not a sufficient justification for a broad policy of racial segregation. For example, in Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994), the court did not accept the argument that there might be an increase in violence if people of different races shared two-person cells, since the rest of the prison was integrated. Another court allowed an equal protection claim to go forward where all Black prisoners were segregated and kept in lockdown in response to violence that only involved a few Black prisoners. Richardson v. Runnels, 594 F.3d 666 (9th Cir. 2010). However, some courts have held that a brief period of racial segregation, like during a lockdown or another emergency where the safety of members of one racial group is an issue, is OK. Fischer v. Ellegood, 238 Fed. Appx. 428 (11th Cir. 2007).

Most courts have held that racial epithets or other racially based verbal abuse do not violate the Constitution.

2. Freedom from Sex and Gender Discrimination

The Equal Protection Clause of the Fourteenth Amendment also prohibits discrimination based on sex and gender. Men and women are protected under the rule, and so are LGBTQ+ people according to a growing number of courts.

To prevail on a claim, you will have to show that you were treated differently than others on account of your sex, gender, or LGBTQ status for reasons that were not “substantially related to a sufficiently important government interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985). This is “heightened scrutiny” as described above.

a. The “Similarly Situated” Requirement

To make an equal protection claim, you must first show that the people you wish to compare are “similarly situated” for the purposes of the claim you are bringing. “Similarly situated” means that there are no differences between two people that could explain the different treatment they receive.

While it is unconstitutional to treat people who are in the same situation differently, it is acceptable to treat people in different situations differently. Courts will look at several factors to decide whether people are “similarly situated,” including number of people in prison, average sentence, security classification, and special characteristics such as violent tendencies or experiences of abuse. In Victory v. Berks County, 2019 WL 211568 (E. D. Pa. Jan. 15, 2019), the court found the female “trusty” prisoner similarly situated to male “trusty” prisoners, because Berks County applied a risk-management equation to all prisoners, men and women, to determine who should get “trusty” status.

Unfortunately, courts very often decide on the basis of these factors that male and female prisoners are not similarly situated. Mathis v. Monza, 530 Fed. Appx. 124 (3d Cir. 2013); Keegan v. Smith, 100 F.3d 644 (8th Cir. 1996); Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994). And as Section I, Part 2 explains, LGBTQ people making “similarly situated” arguments face their own unique challenges.

b. Proving Discriminatory Intent

If you successfully show that you were treated differently than “similarly situated” people, next you must show that prison officials treated you differently based on your sex, gender, or LGBTQ status, and not for a different, legitimate reason. Courts will use a different test for this depending on whether the action you are challenging is “gender-based” or “gender-neutral.” These two terms are explained below.

Gender-based classifications: Policies and actions are “gender-based” if prison officials make clear that different standards apply based on your sex, gender, or LGBTQ status. For example, a policy that says all women will be sent to childcare training and all men will be sent to vocational training is “gender-based.” Judges look very carefully at gender-based rules. The government must show the distinctions being drawn are “substantially related to important governmental objectives.” Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). This is known as “heightened” or “intermediate” scrutiny. Heightened scrutiny also applies to actions by corrections officers that single you out based on sex/gender.

Gender-neutral classifications: A “gender-neutral” policy or practice is one that does not actually say anything about gender, but still has the effect of discriminating against people. One example is a prison system that has a rule that only prisons with 2,000 prisoners or more get college programs, where women’s prisons are too small to qualify. If the action challenged is “gender-neutral” then the courts use a less strict standard of review. The court asks whether the rule is “rationally related to legitimate government interests,” or whether, instead, it shows an intent to discriminate on the basis of gender. Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990).

There are two important considerations to keep in mind about these tests:

1. Any type of government interest—whether it’s “important” or “legitimate”—cannot be based on stereotypes or outdated ideas about gender. Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). For example, the court will not accept a government interest of protecting one gender because it is “inherently weaker” than the other gender. Glover v. Johnson, 478 F. Supp 1075 (E.D. Mich. 1979).

Men in prison can also bring claims based on gender stereotypes. For example, Sassman v. Brown, 99 F. Supp. 3d 1223 (E.D. Ca. 2015) involved a California alternatives-to-incarceration program that was open to all women, but only open to men who are the primary caregivers of dependent children. A male prisoner sued, claiming that the program violated his right to equal protection. The court found the rule unconstitutional and made the program open to men and women equally.

2. It is not always obvious whether a prison’s action is gender-based or gender-neutral, and courts disagree on how to read regulations or policies. Often, there will be two regulations at play. The first regulation assigns people to specific prisons on the basis of their sex or gender. Outside of the context of placement of transgender prisoners (discussed in Section I, Part 2), courts have rarely held that this kind of segregation is discrimination. The second regulation assigns certain programs or facilities to prisons on the basis of such factors as size, security level, or average length of prisoner sentence. These second types of regulations do not appear to be gender-based; they seem to be based on characteristics of the prisons alone. However, they often result in different treatment of people in prison based on gender.

Some courts have been reluctant to find that prison rules are gender-based when they do not explicitly distinguish between men, women, or LGBTQ+ people when it comes to how the prison facility is run. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994); Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). Other courts, however, have read the requirement more favorably to prisoners. They see that, in reality, gender-neutral regulations about programming interact with gender-based assignment of prisoners to specific prisons, which makes the regulations gender based. (“Programming” means the kinds of activities that prisoners are allowed or required to engage in, such as work, education, etc.) One example of this is Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989).

3. Freedom from Other Forms of Discrimination

If you believe you are being unfairly singled out for mistreatment, but it is not based on your race, ethnicity, gender, or some other suspect or quasi-suspect factor, you can still make an equal protection claim. However, that claim will be very hard to win. For example, in Graziano v. Pataki, 689 F.3d 110, 117 (2d Cir. 2012) a court said treating "violent offenders" differently from other offenders did not violate equal protection.

To win your case, you will need to show that you are being treated differently than other prisoners and that your treatment is not rationally related to a legitimate governmental purpose. One area where people in prison have had some success is when people are treated differently based on sexual orientation. A good example of a successful case is Doe v. Sparks, 73 F. Supp. 227 (W.D. Pa. 1990). In that case, the court held that it was irrational for a prison to ban same-sex boyfriends and girlfriends from non-contact prison visits. In another case, Davis v. Prison Health Services, 679 F.3d 433 (6th Cir. 2012), an appeals court allowed a case about a prisoner who was removed from a work program due to his sexual orientation.

On the other hand, in Vega v. Lareau, No. 9:04-cv-00750-GTS-ATB, 2010 U.S. Dist. LEXIS 66431 (N.D.N.Y. Mar. 16, 2010), a prisoner said he was harassed and discriminated against because a guard thought he was gay. The court held that the prisoner failed to prove the mistreatment happened because the guard thought he was gay. Instead, the court believed the guard, who claimed he thought the prisoner was involved in a romantic relationship with another prisoner, and that created a security concern.

D Your Procedural Due Process Rights Regarding Punishment, Administrative Transfers, and Segregation

The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving “any person of life, liberty or property without due process of law.” There are two parts to this clause: “substantive due process” and “procedural due process.” This section deals only with procedural due process.

Your right to procedural due process means that the prison must provide you with some amount of protection (like a hearing or a notice) if the prison does something that harms your life, liberty, or property. Discipline, placement in segregation, transfers to extremely restrictive prisons, and loss of good time credit are all things that the prison can do to you that might violate due process if they are done without procedural protections, like a hearing.

Procedural due process has two parts: first you have to show that you have been deprived of a liberty interest and second, you have to show that you should have gotten more procedure than you received.

You only have a liberty interest if the prison’s actions interfere with or violate your constitutionally protected rights, such as First Amendment rights, or if the prison treats you in a way that is much worse than is normal for prisoners. If a court finds that you don’t have a liberty interest, then the prison doesn’t have to provide you with any process at all.

1. Due Process Rights of People in Prison

Two important Supreme Court cases govern due process rights for prisoners:

• In the first case, Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court found that when prisoners lose good time credits because of a disciplinary offense, they are entitled to: (1) written notice of the disciplinary violation; (2) the right to call witnesses at their hearing; (3) assistance in preparing for the hearing; (4) a written statement of the reasons for being found guilty; and (5) a fair and impartial decision-maker in the hearing.

• The second important Supreme Court case, Sandin v. Conner, 515 U.S. 472 (1995), sharply limits the decision of Wolff, so due process protection only applies to discipline that makes a prisoner’s time in prison longer (like by taking away his good time credits) or treatment that leads to an “atypical and significant hardship on the prisoner in relation to the ordinary incidents of prison life.” In Sandin, a prisoner was placed in disciplinary segregation for 30 days. The Supreme Court found that the prisoner had no liberty interest, because 30 days in disciplinary segregation is not an unusual or harsh punishment. “Significant hardship” means that treatment must be really awful, not just uncomfortable or annoying.

If you want to argue that your rights were violated in a prison disciplinary proceeding because you did not receive the procedures laid out in Wolff, you must first show that the punishment you received either prolonged your sentence (for example, it took away good time credits) or was extremely harsh. Frequently, short periods of disciplinary confinement, “keeplock,” or loss of privileges will not be considered harsh enough to create a liberty interest. For example, in Key v. McKinney, 176 F.3d 1083 (8th Cr. 1999), the court found that 24 hours in shackles was not severe enough to violate due process.

Different circuit courts have taken very different approaches to the question of whether prolonged placement in disciplinary or administrative segregation is atypical and significant. In the Second Circuit, more than 188 days in solitary confinement is severe enough to create a liberty interest. J.S. v. T'Kach, 714 F.3d 99 (2d Cir. 2013). In contrast, in Griffin v. Vaugn, 112 F.3d 703 (3d Cir. 1997), the Third Circuit held that 15 months in administrative segregation is not atypical and significant.

While courts in different circuits have very different interpretations, there does seem to be a recent trend that compares the segregation sentence in question to a “typical” stay in administrative or disciplinary segregation. If you can show that you have been sent to segregation for longer than is typical, you may be able to succeed in your claim. This is hard to do because courts rarely cite any evidence about what is typical. One of the authors of this handbook wrote a law review article that you may find useful to cite on this issue, because it provides evidence about “typical” stays in segregation in the federal prison system and in various state systems. If you are put in segregation for longer than a year you may want to try citing this article for evidence that your sentence in segregation is longer than typical, and you should be entitled to due process protections: Rachel Meeropol, Communication Management Units: The Role of Duration and Selectivity in the Sandin v. Conner Liberty Interest Test, 1 U.C.L.A. Crim. Just. L. Rev. 35, 49-51 (2017). The following text box lists average stays in segregation in different jurisdictions, from the article, and from a study done by Yale Law School called: “Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison.”  

Length of time in segregation is not the only thing that matters, the severity of the conditions matters a lot too. For example, in Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004), a court held that 77 days under aggravated conditions could be atypical and significant. Gillis v. Litscher, 468 F.3d 495 (7th Cir. 2006) and Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) are other good cases examining short placement in very bad conditions.

Although Sandin changed the law in important ways, the Supreme Court did not say it was overruling Wolff. This means that when you can show that there is a liberty interest at stake, even though it is much harder to prove under Sandin, the rights guaranteed by Wolff still apply. In other words, if a decision by prison officials results in conditions that are severe enough to meet the “significant and atypical” standard, or prolongs your time in prison, the prison must give you procedures like a hearing and a chance to present evidence.

Courts have found violations in a person’s due process rights when people in prison are disciplined without the chance to get witness testimony, have a hearing, or present evidence. Courts have also found due process violations when punishment is based on vague claims of gang affiliation. Some cases in which these types of claims were successfully made are: Ayers v. Ryan, 152 F.3d 77 (2d Cir. 1998); Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001); and Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999).

2. Transfers and Segregation

If you are transferred to a different facility or to a different location within a prison, the same standard in Sandin v. Connor applies: you must show that the transfer resulted in conditions that were a significant or atypical departure from the ordinary incidents of prison life. Given the fact that the new prison will likely be similar to prisons everywhere, it is very hard to win on such a claim. In Meachum v. Fano, 427 U.S. 215 (1976) the Supreme Court decided that a transfer from a medium security prison to a maximum-security prison did not create a liberty interest. Similarly, in Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), a court said that transfer from a minimum-security facility to a maximum-security facility did not create a liberty interest.

However, you may have a case if you are transferred to a super-maximum security facility where conditions are way harsher than most prisons, or to a Communication Management Unit (CMU) where contact with family and the outside world is very limited. The Supreme Court considered transfer to a Supermax in Wilkinson v. Austin, 545 U.S. 209 (2005). The conditions were so harsh at the Supermax (almost no human contact, 24-hour lighting, no outside recreation, etc), that the Court found a liberty interest.

Despite Wilkinson, in a case called Rezaq v. Nalley, 677 F.3d 1001 (10th Cir. 2012), the Tenth Circuit said that there was no atypical and significant hardship in being transferred to the federal supermax prison, “ADX,” in Colorado. The court based its ruling, in part, on a finding that it was reasonable to put the prisoner who brought the case in ADX. We think this is an improper way to decide the issue and fails to follow what the Supreme Court has said. Hopefully that case will be overruled in the future. If it is not, prisoners in the 10th Circuit should know that they will have a particularly hard time bringing a due process claim about segregation.

If you are transferred to an unusual unit, or are subject to strange restrictions, an important due process case to read is Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016). That case involved prisoners challenging their placement in a “Communications Management Unit” where prisoners were segregated from the general population, received very few phone calls and were not allowed contact visits. The court found that conditions in a CMU are not as harsh as in segregation, but prisoners were held there for years at a time. The court also thought it was important that very few prisoners were singled out for placement in the unit. The court decided that CMU prisoners have a liberty interest in avoiding the CMU and are entitled to due process protections when sent there, because of how long they might be stuck in a CMU, and how unusual it is to be sent there.

One good state court case you might want to read is Schuyler v. Roberts, 285 Kan. 677 (2008). In Schuyler, the Supreme Court of Kansas considered a prisoner’s due process challenge to his classification as a sex offender even though he had not been convicted on that charge, nor had he been disciplined while incarcerated for inappropriate sexual behavior. Because of the sex offender status, the prisoner lost work privileges, had to transfer to another facility, and had to register as a sex offender upon release. Additionally, he would lose other privileges if he refused to participate in the program. The court found a liberty interest.

You may also have a right to procedural protections if you are transferred out of the prison system entirely. In Vitek v. Jones, 445 U.S. 480 (1980), the Supreme Court found a liberty interest when a prisoner was involuntary removed from the prison to a medical hospital for mandatory mental health treatment. But there may not be a liberty interest under Vitek where a transfer to a mental health facility is temporary and for evaluation. Green v. Dormire, 691 F.3d 917 (8th Cir. 2012).

If a court finds that you have a liberty interest in avoiding transfer to a more restrictive unit, or to administrative segregation, or to some other supposedly non-disciplinary segregated confinement, you will have some due process rights, but these rights are more limited that what is required for a disciplinary proceeding. The Supreme Court has found that, in general, a formal or “adversarial” hearing is not necessary for putting prisoners in administrative segregation. All you get is notice and a chance to present your views informally. This was decided in Hewitt v. Helms, 459 U.S. 460 (1983), the most important case on administrative segregation. Recently, an appeals court said that prisoners kept in solitary confinement on death row after their sentences have been vacated are entitled to these types of procedures. Williams v. Sec’y Penn. Dep’t of Corr., 848 F.3d 549 (3d Cir. 2017).

There may be other ways of challenging transfers and administrative segregation as well. For example, a prison can’t transfer you to punish you for complaining or to keep you from filing a lawsuit. Prison officials must not use transfers or segregation to restrict your access to the courts. For an example of this type of claim, read Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) and Section G of this Chapter. And in some states, you can challenge disciplinary confinement or other kinds of segregation in state court by showing that the officials failed to follow their own rules in placing you there.

E Your Right to Privacy and to be Free from Unreasonable Searches and Seizures

1. Your Fourth Amendment Rights related to Searches

The Fourth Amendment forbids the government from conducting “unreasonable searches and seizures.” Outside of prison, this means that a police officer or F.B.I. agent cannot come into your home or search your body without your consent or a search warrant, unless it is an emergency. However, the Fourth Amendment only protects places or things in which you have a “reasonable expectation of privacy.” In the outside world, this means that if you have your window shades wide open, you can’t expect somebody not to look in, so a cop can too.

In Hudson v. Palmer, 468 U.S. 517 (1984), the Supreme Court held that people in prison don’t have a reasonable expectation of privacy in their cells, so prison officials can search cells as a routine matter without any particular justification, and without having to produce anything like a search warrant.

This doesn’t mean that all cell searches are OK. If a prison official searches your cell just to harass you or for some other reason that is not justified by a penological need, this may be a Fourth Amendment violation. However, to get a court to believe that the “purpose” of a search was harassment, you will need some truly shocking facts. For example, in Scher v. Engelke, 943 F.2d 921 (8th Cir. 1991), a prison guard searched a prisoner's cell 10 times in 19 days and left the cell in disarray after three of these searches.

There is more protection against strip searches. While people have no expectation of privacy in their prison cells, they retain a “limited expectation of privacy” in their bodies. Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020) (en banc). In analyzing body cavity searches, strip searches, or any invasions of bodily privacy, a court will balance the need for the search against the invasion of privacy the search involves. Strip searches are generally allowed but many courts state that the searches must be related to legitimate penological interests and cannot be excessive or used to harass, intimidate, or punish. In Jean-Laurent v. Wilkenson, 540 F. Supp. 2d 501 (S.D.N.Y 2008), for example, one court stated that a second strip search might be unconstitutional because the prisoner was under the constant supervision of guards since the first search. In another case, a court found that body-cavity searches three times a day of prisoners in segregation served no valid penological interest because it was impossible that prisoners in segregation could smuggle contraband in three times a day. Parkell v. Danberg, 833 F.3d 313 (3d Cir. 2016).

Prisoners seem to have had the most success when the searches were conducted by, or in front of, guards of the opposite gender. For example, in Hayes v. Marriott, 70 F.3d 1144 (10th Cir. 1995), the court held that a body cavity search of a male prisoner in front of female guards stated a claim for a Fourth Amendment violation because there was no security need to do it that way. In Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir. 1992), the court recognized a male prisoner’s Fourth Amendment claim based on a strip search done outdoors, in front of several female guards. In Byrd v. Maricopa Cnty. Sheriff's Dep’t., 629 F.3d 1135 (9th Cir. 2011) (en banc), an appeals court held that a strip search of a male prisoner by a female officer violated the Fourth Amendment where the search involved intimate contact and ten to fifteen non-participating officers watched the search, and at least one person videotaped the search. This rule is not limited to strip searches. Where a female prisoner had a documented history of sexual abuse but was forced by male guards to endure pat-down searches that sometimes included inappropriate touching and unwarranted sexual advances, an appeals court found that the circumstanc­es could violate the Fourth Amendment’s prohibition against unreason­able searches and its more general guarantee of a right to some measure of bodily privacy. Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn. 2001). In Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993), the court recognized a claim by male prisoners who were observed by female guards while they showered and went to the bathroom. In Kent v. Johnson, 821 F.2d 1220 (6th Cir. 1987), an appeals court refused to dismiss a prisoner’s complaint that stated female prison guards routinely saw male prisoners naked, showering, and using the toilet.

Even when the search is not done by or in front of a person of the opposite gender, however, you may be able to show a Fourth Amendment violation if there was no reasonable justification for the invasive search.

Unfortunately, many courts have held that strip searches after contact visits are constitutional. Additionally, courts have held strip searches that are accompanied by officer misconduct (like name calling or other verbal abuse) usually do not violate the prisoner’s constitutional rights if there is no physical injury. This may, however, be actionable under state tort law and should always be reported and investigated. We discuss this more in Section F, Part 2 of this chapter. Strip searches involving sexual assault or inappropriate touching are discussed below.

The law is slightly better for pretrial detainees, so if you have not been convicted yet, read Section J of this Chapter, on the rights of pretrial detainees. Special rules also apply to searches if you are transgender, so be sure to read Section I, Part 2 of this Chapter.

2. Your Fourteenth Amendment Right to Medical Privacy

Some courts have found that a constitutional right to privacy exists under the Fourteenth Amendment when it comes to sensitive medical information like your mental health information or HIV status. For instance, In Hunnicutt v. Armstrong, 152 Fed. App’x 34 (2d. Cir. 2005), an appeals court found that a plaintiff whose mental health issues were discussed in front of other prisoners and non-healthcare staff had adequately alleged a privacy violation. Collectively, these cases establish that prison staff may not disclose a prisoner’s HIV status or psychiatric history without need.

But courts have been reluctant to find privacy violations where medical information is disclosed to government officials. Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994) (allowing HIV disclosure to other corrections officials) Seaton v. Mayberg, 610 F.3d 530 (9th Cir. 2010) (allowing disclosure of sensitive health information to state DAs).

Qualified immunity can also make it difficult for you to seek monetary damages for a privacy breach since the law on privacy is evolving. You will also need to show that you were physically hurt in order to recover damages under the PLRA. This problem is described in Chapter Four, Section C, Part 2.

The federal HIPAA statute also protects medical records from improper disclosure, but you cannot sue officials for a HIPAA breach. Instead, you can cite HIPAA violations as evidence that your constitutional privacy rights were violated.

Additional privacy rights that apply to LGBTQ+ people and people living with HIV/AIDS are discussed in Section I, below.

F Your Right to be Free from Cruel and Unusual Punishment

The Eighth Amendment forbids “cruel and unusual punishment” and is probably the most important amendment for prisoners. It has been interpreted to prohibit excessive force and guard brutality, as well as unsanitary, dangerous, or overly restrictive conditions. It is also the source for your right to medical care in prison.

1. Your Right to Be Free from Physical Brutality and Sexual Assault by Prison Staff

What this means in practice is that guards do NOT have the right to beat you or harm you unless their action is considered justified given the situation.

a. Use of Excessive Force and Physical Brutality by Prison Officials

“Excessive force” is any physical contact by a guard that is meant to cause harm rather than keep order.

“Excessive force” by prison guards is cruel and unusual punishment. In a very important Supreme Court case called Hudson v. McMillian, 503 U.S. 1 (1992), the Court found a violation of the Eighth Amendment when prison officials punched and kicked a prisoner, leaving him with minor bruises, swelling of his face and mouth, and loose teeth. The Court held that a guard’s use of force violates the Eighth Amendment when it is not applied “in a good faith effort to maintain or restore discipline,” but instead is used to “maliciously and sadistically cause harm.” To prevail under Hudson, a two-part test applies. First you must show that prison officials “acted with a sufficiently culpable state of mind” (the subjective element)—i.e., not for a legitimate penological purpose, but “maliciously and sadistically for the very purpose of causing harm,” and (2) the harm caused was more than “de minimis”. “De minimis” means so trivial it’s not even worth considering.

In applying this test to excessive force claims, judges may consider:

• The need for force;

• Whether the amount of force used was justified given the need;

• How serious the need for force appeared to the guards;

• Whether the guard made efforts to use as little force as necessary; and

• How badly you were hurt.

This means that to win on an excessive-force claim, you will have to show that more force was used against you than was justified given the situation, but you do not have to show injury. It is usually enough to show some harm, even if it is relatively minor. In 2010 the Supreme Court made it clear that a prisoner can win an excessive force case even if they are not seriously injured. Wilkins v. Gaddy, 559 U.S. 34 (2010). In Wilkins, the Supreme Court explained that a beating is excessive force, even if it doesn’t result in injuries that require medical care. De minimis harm, on the other hand, is something like a push or a shove that does not inflict pain or injury.

The most important thing to prove is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

This is about the “state of mind” of prison officials. “Maliciously and sadistically” means harm that is cruel, done for the purpose of hurting someone, and is uncalled-for. You can meet this requirement by showing that the force used was not a necessary or reasonable part of keeping order.

For example, one court found an Eighth Amendment violation when an officer repeatedly hit a prisoner even though the prisoner had immediately obeyed an order to lie face down on the floor and was already being restrained by four other officers. Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388 (8th Cir. 1997). In another successful case, the prisoner was handcuffed and hit several times in the head and shoulders while in a kneeling position. Brown v. Lippard, 472 F.3d 384 (5th Cir. 2006). On the other hand, the Ninth Circuit held that there was no Eighth Amendment violation when a prisoner was shot in the neck during a major prison disturbance because the court found that the officer was trying to restore order. Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001). The Eighth Circuit said pepper spraying a prisoner’s genitals was not excessive force when the prison said he was refusing orders to submit to wrist restraints and being unruly. Ward v. Smith, 844 F.3d 717 (8th Cir. 2016).

With mechanical restraints, you might be able to bring an “excessive force” claim even if the prison says the treatment is just a “condition of confinement” (which is a separate category and discussed below). For example, in Young v. Martin, 801 F.3d 172 (3d Cir. 2015), an appeals court applied the excessive-force test when a prisoner was forced into a restraint chair and remained naked there for fourteen hours.

Unfortunately, many courts have found that prison officials who only make verbal threats of physical harm do not violate the Eighth Amendment. See Walton v. Terry, 38 F. App'x 363, 364–65 (9th Cir. 2002) (“verbal threats do not constitute cruel and unusual punishment.”); Turner v. Mull, 784 F.3d 485, 492 (8th Cir. 2015) (threatening to drown plaintiff without taking further action was not unconstitutional). But in Lisle v. Welborn, 933 F.3d 705, 710 (7th Cir. 2019), the Seventh Circuit found that a plaintiff who was taunted for his failed suicide attempts and encouraged to try again had a valid Eighth Amendment claim.

b. Sexual Assault and Abuse by Prison Officials

Rape and sexual assault by prison staff also violates the Eighth Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (sexual assaults by guards violate the Eighth Amendment “regardless of the gender of the guard or of the prisoner”); Smith v. Cochran, 339 F.3d 1205 (10th Cir. 2003) (assault by prison work program supervisor violates the Eighth Amendment).

For sexual assault by prison officials, the two-part test from Hudson v. McMillian, 503 U.S. 1 (1992) applies. However, this test can be easier to meet here because sexual assault is very harmful and violates contemporary standards of decency without a legitimate penological purpose, even in cases where there is no physical injury. See Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (explaining claims can proceed even if physical injury is “de minimis”).

Sexual abuse that falls short of rape can violate the Eighth Amendment as well. Some courts like the Second and Eleventh Circuits require the sexual abuse to be “severe or repetitive” in order for plaintiffs to prevail. See Sconiers v. Lockhart, 946 F.3d 1256, 1266–67 (11th Cir. 2020), Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). But one severe, isolated incident can meet this standard.

In Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir. 2000), a court of appeals upheld a prisoner’s Eighth Amendment claim where she was forced to do a striptease in front of all the prisoners and officers at her facility. The court found deliberate indifference based on the plaintiff’s repeated filing of grievance claims and letters to officials seeking help, as well as the widespread and ongoing pattern of harassment and sexual assault at the facility. The District argued that it was not deliberately indifferent because it had a policy in place prohibiting such behavior, but the court rejected this argument because it found that no prisoner had ever received a copy of the policy, only a few employees remembered receiving it, and it had never been posted anywhere in the facility.

A pat or strip search can violate the Eighth Amendment too if conducted in a sexual manner to humiliate a prisoner (Fourth Amendment claims for searches are discussed in Section E above). One good case to read for this issue is Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). That case involved a guard searching a prisoner by grabbing his genitals and taunting him. The Second Circuit said that intentionally touching genitalia or intimate areas for the officer’s pleasure or to humiliate the prisoner violates the Eighth Amendment. Another is Sconiers v. Lockhart, 946 F.3d 1256, 1266–67 (11th Cir. 2020), where an appeals court found that a guard who shoved his finger into the plaintiff’s anus outside the context of an approved body-cavity search violated the Eighth Amendment.

But in Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998), a court rejected the Eighth Amendment claim of a plaintiff who was briefly touched on the buttocks by prison staff in an attempt to embarrass him, without any accompanying sexual advances.

You can bring a claim for commission of a sexual act under the PLRA even if it does not result in physical injury. For purposes of this exception, 18 U.S.C. § 2246 defines a sexual act as follows:

A. contact between the penis and the vulva or the penis and the anus, and…contact involving the penis occurs upon penetration, however slight;

B. contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

C. the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

D. the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

For more on the PLRA’s physical injury requirement that applies in cases that do not involve sexual assault, read Chapter Four, Section C.

Rape and sexual assault can also result in criminal prosecution of the guard or person responsible. Congress and most states have passed laws criminalizing rape or sexual assault of a prisoner by a correctional officer. See 18 U.S.C. §§ 2242 and 2243 (making prison sexual assault unlawful). The Washington College of Law’s Project on Addressing Prison Rape has put together a survey of all state criminal laws prohibiting sexual abuse of individuals in custody at https://www.wcl.american.edu/impact/initiatives-programs/endsilence/research-guidance/.

If you are assaulted or witness an assault, consider reporting it immediately and you may also want to think about preserving potential evidence like DNA samples and the clothes you wore during the assault.

c. Sexual Harassment and Verbal Abuse by Guards

In rare cases, sexually explicit comments and verbal abuse by prison officials can also violate the Eighth Amendment. See Hudson v. Palmer, 468 U.S. 517, 530 (1984) (stating “calculated harassment unrelated to prison needs” can also violate the Eighth Amendment). But it is a difficult standard to meet. Just as courts do not always recognize the seriousness of sexual harassment outside of prison, they do not acknowledge the harm that verbal sexual abuse or less invasive sexual touching can cause in prison. Courts often call sexual harassment by prison guards “outrageous” or “reprehensible” but do not find it unconstitutional. This is unfortunate.

In Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015), the Seventh Circuit found that prison officials who made lewd sexual comments and gestures and called the plaintiff a “punk, fag, sissy, and queer” may have violated the Eighth Amendment because the conduct caused the plaintiff severe psychological harm, and being labeled LGBTQ+ increased his risk of abuse and assault.

Other cases failed to find Eighth Amendment violations despite noting the seriously inappropriate behavior of prison officials. For example, one court found that it was not cruel and unusual punishment when a corrections official repeatedly made sexual comments about a female prisoner’s body to her, including one instance when he entered her cell while she was sleeping and commented on her breasts. Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995).

But not all courts have been so insensitive to the effects of sexual harassment. In Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), the court upheld a decision ordering a prison to adopt a new sexual harassment policy that prohibited conduct including: “(1) all unwelcome sexual activity directed by any DCDC employee at a prisoner including acts of sexual intercourse, oral sex, or sexual touching, and any attempt to commit these acts; and (2) all unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature directed by any DCDC employee at a prisoner.” Id. at 933.

d. “Consensual” Sex between Prisoners and Guards

Courts disagree about whether a correctional officer can be held liable for having sex with a prisoner when the prisoner consents to the act. In Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999), a federal court in Delaware held that a guard had violated the Eighth Amendment by engaging in vaginal intercourse with a prisoner under his supervision, whether or not she had consented. The court relied on Delaware state law that made it a crime for a correctional officer to have sex with a prisoner, whether or not it was consensual.

In Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), however, the Eighth Circuit found that consensual sex does not constitute cruel and unusual punishment because it does not cause any pain, according to that court’s definition. Other cases like this are Graham v. Sheriff of Logan County, 741 F.3d 1118 (10th Cir. 2013) and McGregor v. Jarvis, No. 9:08-CV-770, 2010 U.S. Dist. LEXIS 97408 (N.D.N.Y. Aug. 20, 2010).

The Ninth Circuit has looked at the issue differently. In Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012) the court explained that because the relationship between officers and prisoners is coercive, the court assumes that a prisoner cannot consent unless the officers prove otherwise. This means the burden is on the officers to give proof that no coercion occurred.

Today, the federal government and most states have statutes making it a crime for a correctional employee to have intercourse with a person in prison, regardless of whether or not that person consents. A federal law, 18 U.S.C. § 2243, criminalizes sexual intercourse or other physical conduct between an officer and prisoner in any federal prison. You can check out the resources listed earlier in this section for state laws on sexual contact between guards and prisoners.

e. Challenging Prison Supervisors and Prison Policies

If you are a victim of sexual abuse in prison, you may wish to sue not only the person who abused you but also that person’s supervisors. Or, you may want to challenge some of your prison’s policies. You can sue prison supervisors for allowing you to be raped or assaulted by a guard or another prisoner under the deliberate-indifference standard explained in the next section.

If you are considering this type of case, be sure to read the section on special issues about suing supervisors in Chapter Four, Section D.

In one major case, women in prison successfully challenged the policies regarding sexual harassment in Washington, D.C. prisons. The court in that case, Women Prisoners of District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), ordered the prison to implement a new prisoner grievance procedure so that prisoners could report sexual harassment confidentially and get a prompt response, and to start a confidential hotline for women to report instances of abuse, and to create a mandatory training program on sexual harassment for all corrections officers in D.C. prisons.

States also may be liable for sexual abuse if facilities have a policy and practice of permitting male staff to view and supervise incarcerated women, especially in isolated or remote settings, without female staff present. Cash v. Erie County, No. 04-CV-0182C(F), 2007 U.S. Dist. LEXIS 50129 (W.D.N.Y. July 10, 2007). You may also want to read a later decision in the same case: Cash v. Erie County, 654 F.3d 324 (2d Cir. 2011).

In another case, however, women in prison attempted but failed to challenge a county’s policies regarding sexual harassment after they were sexually abused by a prison employee. The court held that a municipality can only be accountable for an Eighth Amendment violation when it shows deliberate indifference and explained that deliberate indifference only exists where a municipality has actual notice that its actions or failures to act will result in a constitutional violation, or when it is highly predictable that a constitutional violation will occur. Since the county in this case did provide training programs addressing sexual harassment and prisoner-officer relations to the officer convicted of abuse, the court did not find deliberate indifference. Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998).

Finally, if you have been sexually assaulted in detention, you may want to obtain a copy of Just Detention International’s booklet, Hope for Healing: Information for Survivors of Sexual Assault in Detention (2009) at https://www.prearesourcecenter.org/sites/default/files/library/hopeforhealingweb.pdf, or by writing to Just Detention International, 3325 Wilshire Boulevard, Suite 340, Los Angeles, CA 90010.

2. Your Right to Be Free from Physical and Sexual Assault by Other Incarcerated People

Everyone has a right to be free from physical and sexual assault in prison, including at the hands of other incarcerated people. This was established in an important Supreme Court case called Farmer v. Brennan, 511 U.S. 825 (1994), which found that “prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners” under the Eighth Amendment, including violence in the form of sexual assault. Id. at 833.

To bring a failure-to-protect claim regarding physical or sexual assault, you need to show “deliberate indifference.” This requires proof that:

1. Guards knew that there was a substantial risk you would be seriously harmed; and

2. They failed to respond reasonably to protect you.

If you feel you’re at risk, do not wait until you are attacked to ask for help or protection, such as placement in protective custody. That way, prison officials will be on notice of your risk and will have a duty to respond.

a. Failure to Protect from Prisoner Sexual Assault

Prison officials who do not take reasonable steps to protect you from sexual assault by other prisoners violate your clearly established rights under the Eighth Amendment and Farmer v. Brennan, 511 U.S. 825 (1994). Here, Farmer’s familiar two-part test applies: First, you must show prison officials knew you stood a substantial risk of serious harm from assault. Second, you must show they did not take reasonable steps to protect you.

To argue that prison officials unreasonably disregarded an excessive risk to your safety, it can be helpful to mention if prison officials violated your prison’s own policies on safety and sexual assault prevention. It may also be useful to mention the Prison Rape Elimination Act of 2000, 42 U.S.C. § 15601 et seq., and its implementing regulations, 28 C.F.R. § 115 et seq. (collectively “PREA”). PREA instructs federal and state prisons, jails, lockups, and immigration detention centers to adopt a zero-tolerance approach to sexual abuse. PREA also details steps that prison officials can take to protect vulnerable people in custody, such as LGBTQ+ people and people with a history of sexual abuse.

Although PREA does not offer a legal remedy for violations, you can use it to support your Eighth Amendment claim by citing it as evidence that prison officials knew of but disregarded your substantial risk of harm.

b. Failure to Protect from Prisoner Physical Abuse

You can also use Farmer v. Brennan’s two-part test to sue prison officials under the Eighth Amendment if they fail to protect you from being attacked by another incarcerated person. In Harper v. Dourrette, 107 Fed. Appx. 444 (5th Cir. 2004), a court explained that it is not reasonable for guards to do nothing after a prisoner has reported a substantial risk of injury.

Sometimes a court will find that prison officials acted reasonably, even if they knew of a substantial risk, and failed to prevent a prisoner from being harmed. In Walls v. Tadman, 762 F.3d 778 (8th Cir. 2014), a prisoner who reported a risk of attack was placed in protective custody and then told the guards there was no longer a risk and asked to go back to general population. The prison did so, and he was attacked while in general population. The Eighth Circuit Court of Appeals ruled against his failure-to-protect claim because it found the guards acted reasonably given the prisoner’s request. And in Longoria v. Texas, 473 F. 3d 586 (5th Cir. 2006), the court ruled that prison officials did not have to endanger their own safety to protect a plaintiff who was being stabbed.

If you are at risk of assault but are denied protective custody because of a disability, you may be able to bring a claim under the Americans with Disabilities Act (ADA). In Bradley v. Wexford, Inc., 2019 Dist. LEXIS 115532 (D.D. Ill. 2019), a plaintiff’s ADA claim was allowed to go forward when he was denied access to protective custody because he was a wheelchair user.

3. Your Right to Decent Conditions in Prison

The Eighth Amendment’s prohibition of cruel and unusual punishment protects your right to safe and humane conditions in prison. You can challenge prison conditions that are unsafe or that deprive you of a “basic human need,” such as shelter, food, exercise, clothing, sanitation, and hygiene. However, the standard for unconstitutional conditions is high: courts allow conditions that are “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). You must have evidence of conditions that are serious and extreme.

To challenge prison conditions using the Eighth Amendment, you must meet both “objective” and “subjective” requirements. Farmer v. Brennan, 511 U.S. 825 (1994); Wilson v. Seiter, 501 U.S. 294 (1991). To meet the objective Eighth Amendment standard, you need to show that you were deprived of a basic human need or exposed to serious harm. Under the subjective part of the test, you usually must show that the prison official you are suing knew you were being deprived or harmed and did not respond reasonably. You must also show how you were injured and prove that the denial of a basic need caused your injury.

Under the objective part of the test, the court will look at whether the condition or conditions you are challenging could seriously affect your health or safety. In considering a condition, a court will think about how bad it is and how long it has lasted. Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998). You must show that you were injured either physically or psychologically, though courts do not agree on how severe the injury must be. You may challenge conditions even without an injury if you can show that the condition puts you at serious risk for an injury in the future, like secondhand smoke. Helling v. McKinney, 509 U.S. 25 (1993).

Under the subjective part of the test, you must show that the official you are suing acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294 (1991). This is an important legal term. It means that the official knew of the condition and did not respond to it in a reasonable manner. Farmer v. Brennan, 511 U.S. 825 (1994). One way to show this is by proving that the condition was so obvious that the official must either know about it or be purposefully ignoring it. Courts will also consider any complaints or grievance reports that you or other prisoners have filed, Vance v. Peters, 97 F.3d 987 (7th Cir. 1996), as well as prison records that refer to the problem. Prison officials cannot ignore a problem once it is brought to their attention.

Prison officials may try to argue that the prison does not have enough money to fix problems, but courts have generally not accepted this defense. Carty v. Turnbull, 144 F. Supp. 2d 395 (D.V.I. 2001). It is important to note that while there is a subjective component to Eighth Amendment claims, you do not need to show why prison officials acted as they did.

Remember that courts disagree on whether the Prison Litigation Reform Act (PLRA) means that you can’t get damages if you only prove emotional or mental injury without any physical injury. This provision will not affect a lawsuit that tries to change conditions (injunctive relief). However, it may be difficult to get money damages for exposure to unsafe or overly restrictive conditions unless they have caused you a physical injury. The courts are not in agreement on this issue, so you may want to just include these claims anyway and hope for the best.

Below are some of the most common Eighth Amendment challenges to prison conditions. Remember, to prevail on a claim for any of these, you must show both subjective and objective evidence.

• Food: Prisons are required to serve food that is nutritious and prepared under clean conditions. Robles v. Coughlin, 725 F.2d 12 (2d Cir. 1983). Meals cannot be denied as retaliation, since denying meals (usually several meals; one denial will most likely not succeed) can be a deprivation of a life necessity, violating the Eight Amendment. Foster v. Runnels, 554 F.3d 807 (9th Cir 2009). However, as long as the prison diet meets nutritional standards, prisons can serve pretty much whatever they want, including prison “loaf.” Prisons must provide a special diet for prisoners whose health requires it. Byrd v. Wilson, 701 F.2d 592 (6th Cir. 2013).

• Exercise: Prisons must provide prisoners with opportunities for exercise outside of their cells. Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Delaney v. DeTella, 256 F.3d 679 (7th Cir. 2001). Courts have not agreed upon the minimum amount of time for exercise required, and it may be different depending on whether you are in the general population or segregation. One court considered three hours per week adequate, Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996), while another approved of just one hour per week for a maximum-security prisoner, Bailey v. Shillinger, 828 F.2d 651 (10th Cir. 1987). Some circuits have determined that prisoners cannot be deprived of outdoor exercise for long periods of time. Hearns v. Terhune, 413 F.3d 1036 (9th Cir. 2005). Prisons must provide adequate space and equipment for exercise, but again, there is no clear standard for this. It is generally acceptable to limit exercise opportunities for a short time or during emergencies.

• Air Quality and Temperature: Prisoners have successfully challenged air quality when it posed a serious danger to their health, particularly in cases of secondhand smoke, Talal v. White, 403 F.3d 423 (6th Cir. 2005); Alvarado v. Litscher, 267 F.3d 648 (7th Cir. 2001); asbestos, LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998) and radon gas, Vega v. Semple, 963 F.3d 259 (2d Cir. 2020). While you are not entitled to a specific air temperature, you should not be subjected to extreme heat or cold, and should be given bedding and clothing appropriate for the temperature. Bibbs v. Early, 541 F.3d 267 (5th Cir. 2008); Gaston v. Coughlin, 249 F.3d 156 (2d Cir. 2001).

• Sanitation and Personal Hygiene: Prisoners are entitled to sanitary toilet facilities, proper trash procedures, no roach or rat infestations, and basic supplies such as toothbrushes, toothpaste, soap, sanitary napkins, razors, and cleaning products. Womble v. Chrisman, 770 F. App'x 918, 925 (10th Cir. 2019) (denial of clean toilets & showers); Fountain v. Rupert, 819 F. App'x 215, 219 (5th Cir. 2020) (unsanitary conditions and inadequate nutrition); Gillis v. Litscher, 468 F.3d 488 (7th Cir. 2006) (denial of mattress, bedding, clothing, soap); DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 2001) (repeated floodings). In Taylor v. Riojas, 141 S. Ct. 52 (2020), the Supreme Court ruled that holding a prisoner in a cell covered in feces even for just a few days violated clearly established Eighth Amendment rights, such that money damages were available.

• Overcrowding: Although overcrowding is one of the most common problems in U.S. prisons, it is not considered unconstitutional on its own. Rhodes v. Chapman, 452 U.S. 337 (1981); C.H. v. Sullivan, 920 F.2d 483 (8th Cir. 1990). However, overcrowding is unconstitutional when it leads to other problems. The Supreme Court struck down overcrowding in California’s prisons in Brown v. Plata, 563 U.S. 493 (2011). The prisons were at 200% of design capacity and this led to the prison system’s inability to provide medical and mental health care, dozens of sick prisoners held together awaiting medical treatment, and preventable deaths occurring once per week on average. If you wish to challenge overcrowding, you must show that it has caused a serious deprivation of basic human needs such as food, safety, or sanitation. French v. Owens, 777 F.2d 1250 (7th Cir. 1985); Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984).

• Rehabilitative Programs: In general, prisons are not required to provide counseling services like drug or alcohol rehabilitation to prisoners unless they are juveniles, mentally ill, or received rehabilitative services as part of their sentence. Women Prisoners of District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).

• Solitary Confinement: Although the Supreme Court has not yet decided whether long-term solitary confinement violates the Eighth Amendment, the Court has stated that the duration of solitary confinement “cannot be ignored in deciding whether the confinement meets constitutional standards.” Hutto v. Finney, 437 U.S. 678, 686 (1978). The Supreme Court has also said that the standards of “human dignity” set by the Eighth Amendment are not fixed but should evolve and “acquire meaning as public opinion becomes enlightened by humane justice.” Hall v. Florida, 572 U.S. 701, 708 (2014). In non-binding opinions, Justice Anthony Kennedy has said, “[y]ears on end of near-total isolation exact a terrible price.” Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring). Justice Stephen Breyer has said, “it is well documented that . . . prolonged solitary confinement produces numerous deleterious harms.” Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting). Finally, Justice Sonia Sotomayor has said, “we do know that solitary confinement imprints on those it clutches a wide range of psychological scars.” Apodaca v. Raemisch, 139 S. Ct. 5 (2018) (Sotomayor, J. concurring in denial of certiorari). These quotes are not binding because they were not from the court’s main opinions, but they are still helpful to mention.
  
  Other federal courts have been willing to rule that solitary confinement violates the Eighth Amendment when it lasts a long time. In Young v. Martin, 801 F.3d 172 n. 8 (3rd Cir. 2015), an appeals court said that six-year solitary confinement “raises serious concerns under the Eighth Amendment’s conditions of confinement test.” In Johnson v. Wetzel, 209 F. Supp. 3d 766 (M.D. Pa. 2016), the court ordered that a plaintiff be moved out of solitary confinement and into the general population because long-term solitary confinement was likely a violation of his Eighth Amendment rights. In Porter v. Clarke, 290 F. Supp. 3d 518, 530-31 (E.D. Va. 2018), the court found that plaintiffs kept in prolonged solitary confinement on death row had a valid Eighth Amendment claim because “prolonged isolation and lack of stimulation can have devastating psychological and emotional consequences,” and that “it would defy logic to suggest that [defendants] were unaware of the potential harm that lack of human interaction on death row could cause.” The court stated that because of the Eighth Amendment’s incorporation of contemporary standards of decency and the “rapidly evolving information available about the potential harmful effects of solitary confinement,” it was not bound by old court decisions denying Eighth Amendment claims.

In another important case, Ashker v. Brown, No. C 09-5796 CW, 2013 U.S. Dist. LEXIS 51148 (N.D. Cal. Apr. 9, 2013), ten prisoners at Pelican Bay State Prison in California brought a class action challenging decades in solitary confinement. The plaintiffs complained of prolonged isolation, lack of stimuli, and serious psychological pain and suffering. The officials were put on notice because of administrative grievances, written complaints, and hunger strikes. The court allowed the Eighth Amendment claim to go forward, and the case ultimately settled after the state agreed to end indefinite solitary confinement in California. The judge referred to the agreement as both innovative and humane.

Solitary confinement can also violate the Eighth Amendment if you can show it has harmed your physical or mental health. In Jones El v. Burge, 164 F. Supp. 2d 1096 (W.D. Wisc. 2001), the court found that that constant isolation, illumination, and other sensory deprivation for prisoners with serious mental health issues violates the Eighth Amendment. In cases where this argument failed, the prisoners were not able to prove the subjective element—that the prison knew the conditions were making their mental illness worse. Scarver v. Litscher, 434 F.3d 972 (7th Cir. 2006).

In recent years, the U.S. Department of Justice (DOJ) has acknowledged that solitary confinement causes harm. In a 2014 report, the DOJ stated that long-term use of solitary confinement on mentally ill prisoners “violate[s] the Eighth Amendment’s prohibition against ‘cruel and unusual punishments.’” DOJ Investigation of the Pa. Dep't of Corr. Use of Solitary Confinement on Prisoners with Serious Mental Illness and/or Intellectual Disabilities, which can be accessed on the internet at https://www.justice.gov/sites/default/files/crt/legacy/2014/02/25/pdoc_finding_2-24-14.pdf. In a 2016 report, the DOJ recommended that incarcerated people be housed in the “least restrictive setting necessary” to ensure their safety, and that stated juveniles, women who are pregnant or post-partum, and people with serious mental illness not be placed in solitary confinement at all. DOJ U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (Jan. 2016), https://www.justice.gov/archives/dag/file/815551/download. While both the 2014 and 2016 reports are non-binding, they contain powerful statements from the DOJ.

• Other Conditions: Prisoners have also successfully challenged problems with lighting and fire safety, Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985); sleep deprivation, Walker v. Schult, 717 F.3d 119 (2d Cir. 2013); furnishings, Brown v. Bargery, 207 F.3d 863 (6th Cir. 2000); accommodation of physical disabilities, Bradley v. Puckett, 157 F.3d 1022 (5th Cir. 1998); unsafe work requirements, Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990); as well as other inadequate or inhumane conditions.

Instead of challenging a particular condition, you may also bring an Eighth Amendment suit on a “totality of the conditions” theory. You can do this on your own or as part of a class action lawsuit. Using this theory, you can argue that even though certain conditions might not be unconstitutional on their own, they add up to create an overall effect that is unconstitutional. Palmer v. Johnson, 193 F.3d 346 (5th Cir. 1999). The Supreme Court has limited this argument to cases where multiple conditions add up to create a single, identifiable harm, Wilson v. Seiter, 501 U.S. 294 (1991), but the courts disagree on exactly what that means.

4. Your Right to Medical Care

The Eighth Amendment protects your right to get medical care. The Constitution guarantees prisoners this right, even though it does not guarantee medical care to people outside of prison. The Supreme Court explained that this is because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Unfortunately, the Eighth Amendment does not guarantee you the same level of medical care you might choose if you were not in prison.

If you feel that your right to adequate medical care has been violated, the Constitution is not the only source of your legal rights. You can bring claims under your state constitution or state statutes relating to medical care or the treatment of prisoners. You can also bring a medical malpractice suit in state court. If you are a federal prisoner, you might also bring a claim in federal court under the Federal Tort Claims Act. However, this section will focus exclusively on your right to medical care under the U.S. Constitution.

To succeed in an Eighth Amendment challenge to the medical care in your prison, you must show three things. These are:

1. You had a serious medical need;

2. Prison officials showed “deliberate indifference” to your serious medical need; and

3. This deliberate indifference caused your injury.

Estelle v. Gamble, 429 U.S. 97 (1976). These requirements are described in more detail below.

a. Serious Medical Need

Under the Eighth Amendment, you are entitled to medical care for “serious medical needs.” Serious medical needs can relate to “physical, dental, and mental health.” Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019).

Some courts describe a serious medical need as “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention.” Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994); Youmans v. Gagnon, 626 F.3d 557 (11th Cir. 2010). Courts usually agree that a prisoner can show a serious medical need if the “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). In other words, if a doctor says you need treatment, or your need is obvious, then it is probably a “serious medical need.”

Courts generally agree that the existence of a serious medical need depends on the facts surrounding each person. Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003). A condition may not be a serious medical need in one situation but could be a serious medical need in another. Chronic conditions like diabetes, HIV, AIDS, hepatitis, epilepsy, and hypertension are serious medical needs, for which you deserve medical attention and care. Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004) is a nice example of a court deciding that HIV and hepatitis are serious medical needs.

In considering whether you have a serious medical need, the court will look at several factors, including:

• Whether a reasonable doctor or patient would consider the need worthy of comment or treatment;

• Whether the condition significantly affects daily activities; and

• Whether you have chronic and serious pain.

For more on these factors, a good case to read is Brock v. Wright, 315 F.3d 158 (2d Cir. 2003).

The right to adequate medical care also includes “a right to psychiatric and mental health care, and a right to be protected from self-inflicted injuries, including suicide.” Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994). Other decisions recognizing the right to mental health care include Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), Clark-Murphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006) and Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987).

Several courts have held that a risk of suicide is a serious medical need for the purposes of the Eighth Amendment. Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996); Gregoire v. Class, 236 F.3d 413 (8th Cir. 2000).

It is important that you keep detailed records of your condition and inform prison medical staff of exactly how you are suffering.

b. Deliberate Indifference

To satisfy the “subjective” portion of the Eighth Amendment standard, you must show that prison officials treated you with deliberate indifference. This means, (1) prison officials knew about your serious medical need, and (2) the prison officials failed to respond reasonably to it. Estelle, 429 U.S. at 104; Gutierrez v. Peters, 111 F.3d 1364 (7th Cir. 1997).

To show that prison officials knew about your medical needs, you will need to describe all the ways you tried to notify prison officials about your medical condition and treatment needs, by submitting grievances and medical requests. This means that any time you experience a serious medical issue, you should keep careful records of your efforts. You should take advantage of sick-call procedures at your prison and report your condition even if you do not think officials will help you. You should keep notes of the dates that you requested medical assistance and the identification of the prison officials. You should describe the medical complaint that you had and the effect that any delays had on your health. You should include these details in your formal grievances and complaints.

Prison officials who know about your serious medical needs must provide treatment “at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.” United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987). This means that treatment decisions are unconstitutional and inadequate when they are “far afield of accepted professional standards.” Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).

Courts most often find deliberate indifference when:

• A prison doctor fails to respond appropriately or does not respond at all to your serious medical needs. Scott v. Ambani, 577 F.3d 642 (6th Cir 2009); Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); Meloy v. Bachmeier, 302 F.3d 845 (8th Cir. 2002).

• Prison doctors or officials delay or deny giving you medically necessary mental, medical, or dental care, or a medical diet. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir.2008) (1.5 day delay in treating broken nose); Smith v. Knox Cnty. Jail, 666 F.3d 1037 (7th Cir. 2012) (5 day delay providing emergency medical care); Brown v. District of Columbia, 514 F.3d 1279 (D.C. Cir. 2008) (2 month delay on medical care); Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (one year delay for dental care); Byrd v. Wilson, 701 F.2d 592 (6th Cir. 2013) (medical diet).

• Prisons adopt policies that restrict access to medical treatment on a blanket basis, regardless of individual need. Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011), Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005);

• When non-medical officials interfere with the treatment that your doctor has ordered. Estelle, 429 U.S. at 104-05; Lopez v. Smith, 203 F.3d 1122 (9th Cir 2000).

The easiest cases to win are cases where you are completely denied medical treatment, but you can also bring an Eighth Amendment claim saying treatment you are currently receiving is inadequate. Here, one good case to cite is Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985), which stated “medical care . . . so cursory as to amount to no treatment at all may violate the [Eighth] Amendment.” Another is Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998), which stated that a prison official or medical practitioner “may be deliberately indifferent if he or she consciously chooses ‘an easier and less efficacious’ treatment plan.”

Prisons cannot deny you medical treatment just because it is new or expensive, like Hepatitis C treatment or complex surgeries. Allah v. Thomas, 679 F. App’x 216, 220–21 (3d Cir. 2017) and Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011) are two good cases about the right to Hepatitis C treatment even though it is expensive. And in Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019) a court ruled that a transgender prisoner was entitled to gender-confirmation surgery, regardless of cost.

Although prison officials generally can rely on the treatment recommendations that prison doctors give them, prison officials can still be held liable for denying you treatment if the need would be obvious to anyone. For example, in McRaven v. Sanders, 577 F.3d 974 (8th Cir. 2009) a court found that prison officials could not deny hospitalization to an unconscious person who overdosed just because a nurse recommended against it.

Unfortunately, courts do not usually require prison medical staff to give you the best possible care. For example, one court did not find a violation when prison medical staff followed the doctor’s orders about what to do with a prisoner who had been beaten. Even though the prisoner complained several times and the prisoner’s condition was more serious than the doctor had recognized, there was no violation of the Eighth Amendment. Perkins v. Lawson, 312 F.3d 872 (7th Cir. 2002). Another court found that there was not deliberate indifference in a case where a patient received thirteen medical examinations in one year, even though he claimed that a muscular condition in his back did not improve. Jones v. Norris, 310 F.3d 610 (8th Cir. 2002). Even if there is a delay in treatment, you may still need to show that the doctor knew better. In Whiting v. Wexford Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016), the court found no deliberate indifference when a doctor tried to treat a prisoner’s undiagnosed cancer with antibiotics, saying instead that the doctor’s approach was reasonable.

c. Causation

You must show that you suffered some harm or injury as a result of the prison official’s deliberate indifference. If officials failed to respond to your complaints about serious pain but the pain went away on its own, you will not succeed in a constitutional challenge. For example, courts have said that short interruptions of otherwise adequate treatment of serious conditions like epilepsy and arthritis may not violate the Eighth Amendment. Bilal v. White, 494 Fed. Appx. 143 (2d Cir. 2012).

In some situations, you may wish to challenge your prison’s medical care system as a whole and not just the care or lack of care that you received in response to a particular medical need. These systemic challenges to prison medical care systems are also governed by the deliberate indifference standard. For example, in Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014), Arizona prisoners brought a class action challenging terrible medical, mental, and dental health care provided by a private company operating in the prisons. The case eventually settled for important changes. Successful cases have also challenged the medical screening procedures for new prisoners, the screening policies or staffing for prisoners seeking care, and the disease control policies of prisons. Hutto v. Finney, 437 U.S. 678 (1978).

Remember, you cannot bring an Eighth Amendment challenge to medical care just because it was negligent (such as if a doctor tries to help you but accidentally makes you worse) or because you disagree with the type of treatment a doctor gave you. You might be able to bring those sorts of claims through other means, such as state medical malpractice laws.

d. The COVID-19 Pandemic

Many people in prison and detention have sought release from prison based on the risk to their health posed by the COVID-19 pandemic. For example, in Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 (D. Ct. 2020), people in Danbury federal prison in Connecticut filed a class action Habeas lawsuit to challenge the prison’s failure to adequately protect them from catching the virus under the Eighth Amendment. A “Habeas” lawsuit is different from a 1983 or Bivens action in that it allows a prisoner to ask for release from prison as a form of relief. In the Danbury case, the prisoners first got a temporary restraining order from the judge, ordering the warden to identify medically vulnerable prisoners and create standards for release to home confinement. Temporary restraining orders are described in chapter four. The case settled a few months later, creating a process for court review of decisions about home confinement for all medically vulnerable prisoners.

Some federal prisoners have also succeeded in filing individual cases for compassionate release based on medical vulnerability to COVID-19. One example is United States v. Young, 460 F. Supp. 3d. 71 (D. Ma. 2020). Not all COVID-19 cases are about release. In Seth v. McDonough, 461 F.Supp.3d 242 (D. Md. 2020), a class of men detained in a county correctional facility won injunctive relief forcing the jail to improve COVID-19 precautions, like testing, protective equipment, and cleaning.

Many cases have been less successful, however, and as this handbook goes to print, this is a quickly changing area of law with a lot of procedural complications. So if you are considering a COVID-19 related case, you will want to read as many cases as you can find in your circuit and district to figure out your best chance of success.

G Your Right to Use the Courts

Just like people on the outside, people in prison have a fundamental constitutional right to use the court system. This right is based on the First, Fifth, and Fourteenth Amendments to the Constitution. Under the First Amendment, you have the right to “petition the government for a redress of grievances,” and under the Fifth and Fourteenth Amendments, you have a right to “due process of law.” Put together, these provisions mean that you must have the opportunity to go to court if you think your rights have been violated. This right is referred to as the “right of access to the courts.” Unfortunately, doing legal work in prison can be dangerous, as well as difficult, so it is important to KNOW YOUR RIGHTS!

A terrible but common consequence of prisoner activism is harassment by prison officials. Officials have been known to block the preparation and filing of lawsuits, refuse to mail legal papers, take away legal research materials, and deny access to law books, all in an attempt to stop the public and the courts from learning about prisoner issues and complaints. Officials in these situations are worried about any actions that threaten to change conditions within the prison walls or limit their power. In particular, officials may seek to punish those who have gained legal skills and try to help their fellow prisoners with legal matters. Prisoners with legal skills can be particularly threatening to prison management who would like to limit the education and political training of those in prison. Some jailhouse lawyers report that officials have taken away their possessions, put them in solitary confinement on false charges, denied them parole, or transferred them to other facilities where they were no longer able to communicate with the prisoners they had been helping.

With this in mind, it is very important for those of you who are interested in both legal and political activism to keep in contact with people in the outside world. One way to do this is by making contact with people and organizations in the outside community who do prisoners’ rights or other civil rights work. You can also try to find and contact reporters who may be sensitive to, and interested in, prison issues. These can include newspapers, broadcast television and radio shows, and online websites. It is always possible that organizing from the outside aimed at the correct pressure points within prison management can have a dramatic effect on conditions for you on the inside.

Certain court decisions that have established standards for prisoner legal rights can be powerful weapons in your activism efforts. These decisions can act as strong evidence to persuade others that your complaints are legitimate and reasonable, and most of all, can win in a court of law. It is sometimes possible to use favorable court rulings to support your position in non-legal challenges, such as negotiations with prison officials or in administrative requests for protective orders, as well as providing a basis for a lawsuit when other methods may not achieve your desired goals.

The Supreme Court established that prisoners have a fundamental right to access the courts in a series of important cases, including Ex parte Hull, 312 U.S. 546 (1941), Johnson v. Avery, 383 U.S. 483 (1969), and Bounds v. Smith, 430 U.S. 817 (1977). This right allows you to file a Section 1983 or Bivens Claim, habeas petitions, or to work on your criminal case. The right is so fundamental that it requires a prison to fund a way for you to have meaningful access to the court. Prisons can do this in different ways. They can give you access to a decent law library OR they can hire people to help you with your cases.

However, the right of access to the courts has very serious limitations thanks to a Supreme Court case called Lewis v. Casey, 518 U.S. 343 (1996). This case states that a prisoner cannot claim he was denied his right of access to the courts unless he shows an “actual injury.” For you to show “actual injury,” you have to prove that prison officials or prison policy stopped you from being able to assert a “nonfrivolous claim.” In other words, even if your prison isn’t allowing you to use the law library and isn’t giving you legal help, you still can’t necessarily win a lawsuit about it. To win, courts usually require you to show that you had a legitimate claim or case that you lost, or were unable to bring, due to some action by prison officials, or due to the inadequacy of your access to legal assistance.

You can show actual injury in a lot of different ways. In Myers v. Hundley, 101 F.3d 542 (8th Cir. 1996), for example, the court held that a prison policy requiring prisoners to choose between purchasing hygiene supplies and stamps to file legal documents might violate the right to access the courts if it caused a prisoner to miss a filing deadline. And in Benjamin v. Kerik, 102 F. Supp. 2d 157 (S.D.N.Y. 2000), the court found actual injury (though it ultimately denied relief) when a prisoner could not locate cases cited by defendants in the prison law library, and thus could not fully respond to his adversary’s motion.

The unfortunate problem of Lewis v. Casey is that some courts will only recognize “actual injury” if you have lost your suit or missed a filing deadline because of inadequate access. Other courts, however, allow access to the court claims based on “impairment” of a legal claim, even if the case is not lost. For example, in Cody v. Weber, 256 F.3d 764 (8th Cir. 2001), the court found “actual injury” based on the advantage defendants gained by reading a plaintiff’s confidential legal material.

The most common areas of litigation around court access include your right to:

•  Talk to and meet with lawyers and legal workers;

•  Get reasonable access to law books;

•  Obtain legal help from other prisoners or help other prisoners; and

•  Be free from retaliation based on legal activity.

1. The Right to Talk and Meet with Lawyers and Legal Workers

For pretrial detainees or other prisoners with pending criminal cases, the Sixth Amendment right to counsel protects your right to see your attorney, and the Lewis v. Casey actual-injury requirement does not apply.

Prisoners without pending criminal cases have a due process right to meet with a lawyer. However, as explained above, that right is limited by the Lewis v. Casey actual-injury requirement.

Fortunately you also have a First Amendment free speech right to talk to a lawyer (in a visit or a telephone call) that is separate from your right to access a court and is NOT subject to the “actual-injury requirement.” Al-Amin v. Smith, 511 F.3d 1317 (11th Cir. 2008).

When prisons impose restrictions on the timing, length, and conditions of attorney visits, those restrictions will be reviewed under the Turner standard described earlier in this chapter. For example, in Lopez v. Cook, No. 2:03-cv-1605, 2014 WL 1488518 (E.D.Ca. Apr. 15, 2014), a court ruled that a blanket ban on contact visits between a prisoner and his lawyer violated the First Amendment.
On the other hand, in Suciu v. Washington, No. 12-12316, 2012 WL 4839924 (E.D.Mich. Oct. 11, 2012), a court held that restricting legal visits to certain days and times did not violate the First Amendment.

Other important ways to communicate with a lawyer are through legal calls and legal mail. Your right to confidential conversation and communication with your lawyer is explained in Section A of this chapter and is also subject to Turner analysis.

2. The Right to Access to a Law Library

If your prison decides to have a law library to fulfill the requirements under Bounds, you can then ask the question: Is the law library adequate? A law library should have the books that prisoners are likely to need. The lower courts have established some guidelines as to what books should be in the library. Remember, under Lewis v. Casey, you can’t sue over an inadequate law library unless it has hurt your non-frivolous lawsuit or habeas petition.

Books That Should Be Available in Law Libraries:

•  Relevant state and federal statutes

•  State and federal law reporters from the past few decades

•  Shepard’s Citations

•  Basic treatises on habeas corpus, prisoners’ civil rights, and criminal law

Federal courts have also required that prison libraries provide tables and chairs, be of adequate size, and be open for prisoners to use for a reasonable amount of time. This does not mean that people in prison get immediate access or unlimited research time. Limitations that are too restrictive may constitute a denial of your right of access to the courts, but only if you show that these problems caused actual injury. The Nebraska Supreme Court said it was okay to limit law library access to an hour, when it could be extended by an hour showing a special need or deadline. Payne v. Nebraska Dep’t of Corr., 288 Neb. 330 (Neb. 2014). The court said that law libraries are just for legal research and taking notes, and that writing can be done in cells.

If the denial of access to the law library is somehow connected to another violation of your constitutional rights, you might not have to show that the denial harmed your lawsuit. For example, in Salahuddin v. Goord, 467 F.3d 263 (2d Cir 2006), a prisoner was not allowed to go to religious services on the days he went to the law library. The case was primarily about free exercise of religion, so the prisoner did not have to meet the actual-injury requirement. However, the court still considered the case to be, in part, about access to the library. Similarly, in Kaufman v. Schneiter, 474 F. Supp. 2d 1014 (W.D. Wisc. 2007), the court found an Eighth Amendment violation when a prisoner was forced to choose between using limited out-of-cell time for exercise or for access to the law library.

Prisoners who cannot visit the law library because they are in disciplinary segregation or other extra-restrictive conditions must have meaningful access to the courts some other way. Some prisons use a system where prisoners request a specific book and that book is delivered to the prisoner’s cell. This system makes research very hard and time-consuming, and some courts have held that, without additional measures, such systems violate a prisoner’s right to access the courts. Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006); Marange v. Fontenot, 879 F. Supp. 679 (E.D. Tex. 1995).

Some access cases have been successful. The Ninth Circuit held in favor of one prisoner who was not allowed to go to the law library because of prison lockdowns and as a result was not able to file a brief within a 30-day deadline, and lost his appeal. Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010). But in another case, a court said a library restriction during a two-month lockdown was okay where the prisoner was given alternate access, which was a small cage for two hours at a time with a copy of the California Criminal Law Practice and Procedures text. Lopez v. Athey, No. 1:11-cv-02075, 2014 U.S. Dist. LEXIS 28144 (E.D. Cal. Mar. 4, 2014).

It is possible in rare cases that interfering with legal access might be a reason to get court deadlines extended. The Tenth Circuit Court of Appeals said that ‘extraordinary circumstances’ could be used to extend a deadline, which is also called “equitable tolling.” United States v. Galbadon, 522 F.3d 1121 (10th Cir. 2008).

3. Getting Help from a Jailhouse Lawyer and Providing Help to Other Prisoners

You have a right to get legal help from other prisoners unless the prison “provides some reasonable alternative to assist prisoners in the preparation of petitions.” Johnson v. Avery, 393 U.S. 483 (1969). This means that if you have no other way to work on your lawsuit, you can insist on getting help from another prisoner. In Johnson, the Supreme Court held that the prison could not stop prisoners from helping each other write legal documents because no other legal resources were available.

If you have other ways to access the court, like a law library or a paralegal program, the state can restrict communications between prisoners under the Turner test if “the regulation…is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78 (1987) (See Section A for more discussion). The Supreme Court has held that jailhouse lawyers do not receive any additional First Amendment protection, and the Turner test applies even for legal communications. Therefore, if prison officials have a “legitimate penological interest,” they can regulate communications between jailhouse lawyers and other prisoners. Shaw v. Murphy, 532 U.S. 223 (2001).

Courts vary in what they consider “reasonable” regulation. Johnson itself states that “limitations on the time and location” of jailhouse lawyers’ activities are permissible. The Sixth Circuit Court of Appeals said that it was OK to ban meetings in a prisoner’s cell and require a jailhouse lawyer to only meet with prisoner-clients in the library. Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984). The Eighth Circuit Court of Appeals upheld a ban on communication when, due to a transfer, a jailhouse lawyer was separated from his prisoner-client. Goff v. Nix, 113 F.3d 887 (8th Cir. 1997). However, the Goff court did require state officials to allow jailhouse lawyers to return a prisoner’s legal documents after the transfer.

While a state can regulate jailhouse lawyers, it can’t ban them altogether if prisoners have no other means of access to the court. In Bear v. Kautzky, 305 F.3d 802 (8th Cir. 2002), for example, the court found an access-to-courts violation when a prison banned prisoners who had no other way to get legal help from speaking to jailhouse lawyers.

The right of access to the court is a right that belongs to the person in need of legal services. It does not mean that you have a right to be a jailhouse lawyer or provide legal services. Gibbs v. Hopkins, 10 F.3d 373 (6th Cir. 1993); Tighe v. Wall, 100 F.3d 41 (5th Cir. 1996). Since jailhouse lawyers are usually not licensed lawyers, they generally do not have the right to represent prisoners in court or file legal documents with the court, and conversations between jailhouse lawyers and prisoner-clients are not usually privileged. Bonacci v. Kindt, 868 F.2d 1442 (5th Cir. 1989); Storseth v. Spellman 654 F.2d 1349 (9th Cir. 1981). Furthermore, the right to counsel does not give a prisoner the right to choose who he wants as a lawyer. Gometz v. Henman, 807 F.2d 113 (7th Cir. 1986). And jailhouse lawyers don’t get any special protection from rules that may impact communication with clients. Rather, courts will apply the Turner test described in Section A. Shaw v. Murphy, 532 U.S. 223 (2001).

Some courts require a jailhouse lawyer to get permission from prison officials before helping another prisoner. For example, a New York state court held that the prison could punish a prisoner for helping another prisoner write to the FBI without first getting permission from the other prisoner or authorization from the law librarian. Rivera v. Coughlin, 620 N.Y.S.2d 505 (App. Div. 1994).

In re Morales may be a helpful case to reference if you are trying to defend the work of jailhouse lawyers. In that case, a prisoner was charged with the unauthorized practice of law for acting as a jailhouse lawyer. The Vermont Supreme Court dismissed the charges, saying that they were overbroad. The court discussed the important role played by jailhouse lawyers, saying they are “a well-established fixture in the legal system.” In re Morales, 2016 VT 85 (Vt. 2016).

Being a jailhouse lawyer will not protect you from transfer, although the transfer may be unconstitutional if it hurts the case of the prisoner you are helping. For more on this, compare Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978) with Adams v. James, 784 F.2d 1077 (11th Cir. 1986). The prison may reasonably limit the number of law books you are allowed to have in your cell. Finally, jailhouse lawyers have no right to receive payment for their assistance. Johnson v. Avery, 393 U.S. 483 (1969).

4. Dealing with Retaliation

If you file a civil rights claim against the warden, a particular guard, or some other prison official, there is a chance that they will try to threaten you or scare you away from continuing with your suit. Retaliation can take many forms. In the past, prisoners have been placed in administrative segregation without cause, denied proper food or hygiene materials, transferred to another prison, and had their legal papers intercepted. Some have been physically assaulted. Most forms of retaliation are illegal, and you may be able to sue to get relief.

In many states, you may be transferred to another correctional facility or briefly put in administrative segregation for a number of reasons. Olim v. Wakinekona, 460 U.S. 238 (1983). However, you cannot be put into administrative segregation solely to punish you for filing a lawsuit. Cleggett v. Pate, 229 F. Supp. 818 (N.D. Ill. 1964). Nor can you be transferred to punish you for filing a lawsuit, whether for yourself, or for someone else. Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). Of course, there are other, more subtle things that officers can do to harass you. Perhaps your mail will be lost, your food served cold, or your turn in the exercise yard forgotten. One of these small events may not be enough to make a claim of retaliation, but if it keeps happening, it may be enough to make a claim of a “campaign of harassment.” Calhoun v. Hargone, 312 F.3d 730 (5th Cir. 2002); Witte v. Wisconsin Dept. of Corrections, 434 F.3d 1031 (7th Cir. 2006) (prison doctor subjected to a campaign of harassment for testifying for prisoners).

To prove that the warden or a correctional officer has illegally retaliated against you for filing a lawsuit, you must show three things:

1. You were doing something you had a constitutional right to do, which is called “protected conduct.” Filing a Section 1983 claim or a grievance is an example of “protected conduct” as part of your First Amendment rights;

2. What the prison official(s) did to you, which is called an “adverse action,” was so bad that it would stop an “average person” from continuing with their suit; and

3. There is a “causal connection.” That means the officer did what they did because of what you were doing. Or, in legal terms: the prison official’s adverse action was directly related to your protected conduct.

If you show these three things, the officer will have to show that they would have taken the same action against you regardless of your lawsuit.

In one case, a prisoner was able to prove that there was a policy or custom of retaliating against prisoners who helped other prisoners exercise their right of access to the courts. The retaliation violated their First Amendment rights. Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001).

An important case to look at is Perez v. Gates, No. 13-cv-05359-VC, 2015 U.S. Dist. LEXIS 127009 (N.D. Cal. Sept. 22, 2015). In that case, guards retaliated against a prisoner for joining hunger strikes at Pelican Bay and for writings that were critical of DOC incarceration practices. Several guards acted together to trash the prisoner’s cell and confiscate legal papers. The court allowed the case to continue on retaliation claims. The case went to trial and a federal jury found that the defendants violated the prisoner’s First Amendment rights and were liable for $25,000 total in damages, which included punitive damages.

Be aware that some courts break the three-part test into five parts, but the substance is basically the same. For example, in Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) the court explained that retaliation claims require “five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

It is possible—but not easy—to get a preliminary injunction to keep correctional officers from threatening or harming you or any of your witnesses in an upcoming trial. Valvano v. McGrath, 325 F. Supp. 408 (E.D.N.Y. 1970). Preliminary injunctions are discussed in Chapter Four, Section B. It is also a federal crime for state actors (the prison officials) to threaten or assault witnesses in federal litigation. 18 U.S.C. § 1512 (a)(2). Also remember that groups of prisoners are allowed to bring class action suits if many of them are regularly deprived of their constitutional rights. You have strength in numbers—it cannot hurt to enlist the help of friends inside and outside prison. If you can get somebody on the outside to contact the media or the prison administration on your behalf, it may remind prison officials that others are out there watching out for you, and it may scare them away from engaging in particularly repressive tactics.

Finally, remember that even when you think it would be pointless or go through the prison’s formal complaint system, the PLRA still requires you to do so. If you complain and a guard or someone else threatens you, you still have to go through all available prison grievance and appeal procedures before the court will consider your Section 1983 claim. Booth v. Churner, 532 U.S. 731 (2001).

H Issues of Importance to Women in Prison

As you learned in Section C, women in prison have the same rights under the U.S. Constitution as everyone else. But even though the number of women in prison continues to grow, most cases involving prisoners have been about male prisoners and their needs.

This section discusses some issues of special concern to women in prison, including gynecological care, prenatal care (medical care during pregnancy), abortion, and privacy from observation and searches. For discussion on the needs of transgender women, see Section I.

1. Medical Care

As you learned in Section F, Part 4 of this chapter, your right to medical care is guaranteed by the Eighth Amendment, which prohibits cruel and unusual punishment. To make a claim for an Eighth Amendment medical-care violation, you must show a “serious medical need” and a prison official must have shown “deliberate indifference” to that need.

Despite these rights, women in prison often do not get the medical care they need. In Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977), for example, a class of women in prison argued that their prison’s medical system violated constitutional standards. The court applied the “deliberate indifference” test and determined that by not properly screening women’s health problems and poorly administering prison health services, the prison had denied or unreasonably delayed prisoners’ access to proper medical care in violation of the Eighth Amendment. The court ordered the prison to take specific steps to improve its medical services.

a. Proper Care for Women in Prison

Most courts have not yet considered how to judge the level of medical care women in prison need, including pregnant women. However, state and local regulations sometimes require certain medical services, such as a physical exam, for every new prisoner. Under federal law, all federal prisoners are entitled to a medical screening, with appropriate record keeping, that meets guidelines issued by the Bureau of Prisons. 28 CFR §§ 522.20 - 522.21.

If you are unsure about your own medical needs or want to challenge the medical care you have received, you may want to take a look at some guidelines for women’s health published by national medical associations. The Jailhouse Lawyer’s Manual from Columbia University provides a good summary of the medical services and tests that national guidelines recommend for women. Information on how to order the Columbia Jailhouse Lawyer’s Manual is available in Appendix K.

While a court cannot enforce these guidelines, a judge may be willing to take them into account, especially since there is not that much case law in this area.

b. Medical Needs of Pregnant Women

Women who are pregnant require special medical care, called “prenatal care,” to ensure that they deliver healthy babies. Many pregnant women experience complications during their pregnancy. With immediate and appropriate medical care, these complications can be resolved, and women can go on to have healthy pregnancies and babies. When these complications are ignored, however, they can lead to miscarriages, premature or risky labor, and future reproductive health problems for the pregnant woman involved.

Challenging inadequate prenatal care in court

The two-part test for inadequate medical care under the Eighth Amendment raises some special questions in the area of prenatal care:

• Is pregnancy a serious medical need? Complications during pregnancy, like pain or vaginal bleeding, are serious medical needs. Coopers v. Rogers, 968 F. Supp. 2d 1121 (M.D.Ala 2013). But courts disagree whether a healthy pregnancy is a “serious medical need.” One court said that pregnancy is not a serious medical need if a doctor has not identified any special need for care and when it would not be obvious to an average person that there is a problem. Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997). In a case about a prisoner’s right to an abortion, however, another court stated that pregnancy is different from other medical issues and is a “serious medical need,” even when there are no complications or abnormalities. Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987).

• What counts as deliberate indifference? If you experienced major complications during your pregnancy, a court is likely to find that you had a serious medical need, but the court must still decide whether a prison official who denied you appropriate care showed deliberate indifference to your needs. In Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997), the court found that a prison nurse showed deliberate indifference when she ignored requests to transfer a pregnant prisoner in early labor to a hospital, leaving the prisoner to give birth in severe pain on the floor of her prison cell. The court held that the nurse must have known of the prisoner’s serious medical need because the signs of her preterm labor were obvious and because the nurse had access to the prisoner’s medical records, which documented a history of multiple pregnancies, all with serious complications. In Goebert v. Lee County, 510 F.3d 1312 (11th Cir. 2007), the court found that a pregnant pretrial detainee’s rights were violated when she did not get medical care for 11 days while leaking amniotic fluid and ultimately had a stillbirth.

In some cases, a prison official’s supervisor can be found guilty of deliberate indifference when the official violates a prisoner’s rights, even if the supervisor was not aware of the particular incident in question. In Boswell v. Sherburne County, 849 F.2d 1117 (8th Cir. 1988), the court found a possibility of deliberate indifference among both the jailers who repeatedly ignored a pregnant pretrial detainee’s complaints of severe vaginal bleeding and their supervisors, even though the supervisors were not directly involved. The court relied on the fact that the supervisors encouraged jailers to use their own untrained medical judgment and to reduce the jail’s medical costs, even when it put pretrial detainees’ health at risk.

You should be aware, however, that it is very difficult in general to succeed on a claim that a supervisor is liable to you for a violation of your rights. For a detailed explanation of when you may be able to bring a claim against a supervisor, see Chapter 4, Section D of this Handbook.

Is it legal to shackle a pregnant prisoner?

It is a sad fact that prisons sometimes shackle pregnant prisoners. At least one court has held that a prison cannot use any restraints on a woman during labor, delivery, or recovery from delivery, and cannot use any restraints while transporting a woman in her third trimester of pregnancy unless that woman has a history of escape or assault, in which case only handcuffs are allowed. Women Prisoners of the District of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996). Another good case on this issue is Nelson v. Correction Medical Services, 583 F.3d 522 (8th Cir. 2009), in which a woman prisoner who was forced to endure the final stages of labor and delivery while shackled was entitled to go to trial against the guard who shackled her. In 2011, another court relied on Nelson to say that women should not be shackled during labor or post-partum recovery and that prisons must provide women with medically necessary devices, such as breast pumps, when prescribed by doctors. Villegas v. Metro. Gov’t of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn. 2011). Some cases have led to settlements, such as a case that settled in 2014 for $130,000 against the Nevada Department of Corrections after a prisoner was shackled from labor to delivery, and her medically prescribed breast-milk pump was taken. Nabors v. Navada Dep’t of Corr., No. 2:12-cv-01044-LRH-VCF (D. Nv. 2014). And in 2012, a federal judge approved a $4.1 million settlement in a class-action suit against Cook County, Illinois, after 80 women sued over in-custody births where the women were shackled.

It may be helpful to reference these cases, as well as a June 15, 2010 resolution by the American Medical Association (AMA) which prohibits the use of restraints on a female prisoner “in labor, delivering her baby or recuperating from the delivery.” AMA Resolution 203(A-10).

2. Your Right to an Abortion in Prison 

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court upheld a woman’s right to choose to have an abortion under the Fourteenth Amendment, which protects certain fundamental rights to privacy. Almost twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the court once again upheld the right to an abortion, but also held that the state can limit this right in certain ways to promote childbirth. The state can require women to do certain things, as long as those limitations did not place an “undue burden” on a woman’s right to choose abortion. For example, the state can make a woman wait a certain period of time before having an abortion, or it may be able to require a parent’s permission if the woman is a minor. The court defined an “undue burden” as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” Casey, 505 U.S. at 877.

A woman in prison may challenge an official’s failure to provide her access to an abortion in one of two ways. First, she can claim a violation of her fundamental right to privacy under the Fourteenth Amendment. Second, she can claim a violation of her Eighth Amendment right to medical care, using the two-part test described above. Each of these approaches has been successful, but they can also be challenging for a number of reasons.

a. Fourteenth Amendment Claims

If the prison has a policy that limits your ability to get an abortion in any way, you can challenge that policy under the Fourteenth Amendment. In deciding if the policy is constitutional, the court will use the Turner standard, described in Section A of this Chapter.

One important case is Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). In that case, a prison policy required pregnant women to get a doctor to state that an abortion was medically necessary or get a court order before it would allow the prisoner to obtain an abortion. The Court held that this violated both the Fourteenth Amendment and Eighth Amendment. The Monmouth court applied the four-part Turner reasonableness test to the prison policy in question and determined that the women in prison’s Fourteenth Amendment rights outweighed any claim of legitimate penological interest that might explain the policy.

The court addressed each part of the test as follows:

• Is there a valid, reasonable connection between the prison regulation and a legitimate, neutral state interest used to justify the regulation? The court found that the regulation had no valid relationship to a legitimate security interest. It pointed out that maximum- and minimum-security prisoners could receive “medically necessary” services without a court order, but that even minimum-security prisoners had to receive a court order to seek an abortion.

• Is there another way for prisoners to exercise the constitutional right being limited under the regulation? The court found no other way for prisoners to exercise their right to an abortion under the regulation. It argued that maximum-security prisoners would be unlikely to be released for an abortion by court order and could not get an abortion in the prison. While minimum-security prisoners might receive the release order for an abortion, the court argued that the likelihood of delay in the process was too big a risk, since women are unable to have abortions legally past a certain point in their pregnancy.

• How would eliminating the court-ordered release requirement for prisoner abortions impact prison resources, administrators, and other prisoners? The court noted that although allowing prisoners access to abortions imposed some costs on the prison, giving prisoners proper prenatal care and access to hospitals for delivery imposes equal costs, so eliminating the regulation would not be too costly for the prison. The court also noted that while a prison must help fund abortions for prisoners who cannot pay for them, it is not obligated to pay for all abortion services.

• Are there less restrictive ways for the government to promote its interests? In other words, is the regulation an exaggerated response to the government’s interests? Finally, the court ruled that the regulation was an exaggerated response to questionable financial and administrative burdens because it had nothing to do with prison security and because plaintiffs were simply asking the prison to accommodate the medical needs of all pregnant prisoners, not just those who wished to give birth.

Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008) is another very positive case. There, a class of women seeking elective abortions sued over a Missouri Department of Corrections policy that denied pregnant prisoners transport to receive elective abortions. The department defended the policy by citing a security concern: that protests and conditions at abortion clinics posed a risk to guards and prisoners. The Court decided this concern was legitimate, and that, under the first Turner question, the ban on transport did rationally advance the concern. However, under Turner question two, the Court found that the transport ban entirely eliminated access to abortion, which weighed very heavily against the constitutionality of the rule. After considering the final two Turner factors, the court determined that the rule violated the Fourteenth Amendment and had to be struck down.

Not all Fourteenth Amendment claims have been successful. One bad case is Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004). That case involved an unwritten prison policy requiring pregnant women to obtain a court order allowing transport for an elective abortion. The court found that the prison’s policy of requiring prisoners to seek and receive a court order before allowing them to be released for non-emergency medical services met the Turner v. Safley test for reasonableness. On the other hand, in Doe v. Arpaio, 214 Ariz. 237 (Ct. App. Ariz. 2007), women in prison sued after they were denied access to abortions without a court order. The Arizona Court of Appeals upheld a decision to strike down the jail’s policy of requiring court orders for abortions because it served no legitimate penological purpose.

b. Eighth Amendment Claims

While a Fourteenth Amendment due process claim is a more likely way to win an abortion case, prisoners have also had success with Eighth Amendment claims. However, proving both a serious medical need and deliberate indifference can be difficult.

Is abortion a serious medical need?

When an abortion is necessary to preserve your life or health, it is without question a “serious medical need.” The debate among courts centers on abortions that are “elective”—that is, abortions that are not medically necessary to preserve a woman’s health or save her life.

In Monmouth, the Court of Appeals determined that abortions are a serious medical need whether or not they are medically necessary to protect the health of the woman. The Court rejected the argument that only a painful or serious injury counts as a serious medical need, and noted the unique nature of pregnancy. Even when an abortion is elective, the court decided, it is always a serious medical need because delaying an abortion for too long or denying one altogether is an irreversible action. Without fast medical attention, a woman who wants to exercise her right to have an abortion cannot do so.

Not all courts have agreed with the Monmouth decision, and the case law on whether an elective abortion is a serious medical need is different in different states. For example, in Roe v. Crawford, 514 F.3d 789 (8th Cir. 2008), described above, the appellate court reversed the district court’s decision that the Missouri policy violated the Eighth Amendment. The court decided that because an elective abortion is not medically necessary, it is not a serious medical need.

When is the failure to provide access to abortion deliberate indifference?

Proving deliberate indifference can also be hard. Courts seem to disagree about the standard for deliberate indifference when it comes to abortion. Some courts find only negligence (which is not a violation of a constitutional right) even when it seems like a prison official knew of a prisoner’s request for and right to an abortion. For example, in Bryant v. Maffuci, 923 F.2d 979 (2d Cir. 1991), the court held that prison officials had only been negligent in failing to schedule an abortion for a pregnant prisoner until it was too late for her to have one under New York law, even though, as the dissent noted, the prisoner requested an abortion upon her arrival to prison and every day thereafter, and the medical staff had measured the duration of her pregnancy so far and marked her file as an “EMERGENCY.”

It can be especially difficult to prove deliberate indifference when the actions of many officials are involved. In Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991), a federal judge sentenced a pregnant woman to prison and, based on the prisoner’s repeated requests for an abortion, requested that she be provided with an abortion as soon as possible. After several days of travel, Ms. Gibson reached her assigned facility and learned that no abortions were performed there. When she finally arrived at a facility that did perform abortions, she was told that it was too late in her pregnancy to arrange an abortion. The court held that the denial of Ms. Gibson’s abortion could not be attributed to any particular official, and was only negligence, not deliberate indifference.

2. Discrimination Towards Women in Prison

In addition to the sexism and bias that exists outside prison, women often experience discrimination because they are a minority population in prison. While the population of women in prison has grown much larger over the past few years, women still are at risk for being lumped together in one prison with other prisoners from all levels of security classification because there are fewer women’s prisons. They will sometimes be sent much farther away from their homes than men because there are no women’s prisons nearby. The ACLU report Worse than Second-Class: Solitary Confinement of Women in the United States (April 2014) documented the effects that time spent in solitary confinement has on women in prison. States that provide treatment and educational programs for male prisoners usually provide fewer programs for women because it is very expensive to provide so many programs for so few women.

Faced with these inequalities, women have brought successful suits against state prison officials using an equal protection argument. For example, in a landmark class action case in Michigan, Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979), women challenged the educational opportunities, vocational training, prison industry and work pass programs, wage rates, and library facilities they were provided as compared to those male prisoners were provided. Although prison officials tried to argue that it was impractical and too expensive to provide the smaller population of women the same level of services that they provided to men, the court ruled in favor of the women. The judge ordered the prison to undertake a series of reforms, and the court oversaw these reform efforts for close to twenty years, often stepping in to enforce its decision when it became clear that the prison was not following the Glover court’s orders. Also, in Victory v. Berks County, 2019 WL 211568 (E. D. Pa. Jan. 15, 2019) a federal court ruled in favor of a woman with “trusty” security status, whose conditions of confinement were far more restrictive than those allowed for male “trusty” prisoners.

For more information on how to bring equal protection claims, reread Section C in this chapter.

3. Observations and Searches by Male Guards

Many women in prison feel uncomfortable or anxious when they are observed or searched by male guards. The Prison Rape Elimination Act (PREA), 28 C.F.R. § 115.15, limits cross-gender viewing, pat-downs, and strip-searches to “exigent circumstances” and requires that all such searches be documented. You can’t enforce PREA in the courts, but you can use it as evidence of community standards or to show that prison officials are aware of the risk of harm from cross-gender pat searches. The Constitution provides you with some protection from these searches: the Fourth Amendment protects your right to privacy from unreasonable searches, while the Eighth Amendment protects your right to be free from cruel and unusual punishment. However, as with other constitutional rights, your Fourth and Eighth Amendment rights must be weighed against the prison’s interests in security and efficiency. It is also important to understand that since the federal government prohibits employment discrimination based on gender, courts are reluctant to prevent men from doing a certain type of work in prisons simply because they are men.

Title VII of the United States Code, a federal law, forbids employment discrimination against someone because of their gender. 42 U.S.C. § 2000e et seq. This means that, in general, an employer cannot refuse to hire someone for a certain job or give someone a promotion because of their gender. The only exception to this rule is when there is a strong reason, not based on stereotypes about gender, to believe that a person of one gender could not perform the job or would undermine the goal of the work. In the language of the statute, it must be “reasonably necessary” to have an employee of a specific gender; if this is the case, gender is considered a “BFOQ” which stands for “bona fide occupational qualification.” If the court finds a BFOQ, that means it is legitimate to take gender into account.

Many courts have weighed prisoners’ privacy interests against the need to prevent discrimination in our society and decided that preventing discrimination is a more serious concern. For example, in Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), a case about women guards in men’s prisons, the court expressed concern that women would get stuck with office jobs and decided that gender is not a BFOQ. In Torres v. Wisconsin Department of Health and Human Services, 859 F.2d 1523 (7th Cir. 1988), however, the same court found it acceptable that a women’s maximum-security prison did not allow men to work as security guards because the administrators of the women’s prison had determined that male guards might harm the women in prison’s rehabilitation. According to the court, Johnson and Torres are not inconsistent even though they reached different conclusions about a similar question, because in each case the court deferred to the expertise of prison administrators.

There was a similar result in Everson v. Michigan Department of Corrections, 391 F.3d 737 (6th Cir. 2004). There, the court considered a decision by the Michigan Department of Corrections to ban men from certain positions at women’s prisons in reaction to widespread sexual abuse of prisoners. Male guards sued the prison unsuccessfully. The court deferred to prison officials and found that gender was a BFOQ.

Courts have reached similar conclusions, like in Teamsters Local Union No. 117 v. Wash. Dep’t Corr., 789 F.3d 979 (9th Cir. 2015), where the court looked at a Washington policy of having female-only correctional positions after the state faced years of problems in women’s prisons. The court said that because of the history and documented allegations of abuse, plus interests in privacy and prevention of sexual assault, gender qualified as a BFOQ in that case.

Although many courts have recognized that strip searches and pat downs by guards of the opposite sex can be uncomfortable and even humiliating, courts do not usually consider these searches cruel and unusual punishment. In one important case, however, a court found that pat-down searches of female prisoners by male guards did violate the Eighth Amendment because the searches led the women to experience severe emotional harm and suffering. The court based its argument on statistics showing that 85% of women in that particular prison had been abused by men during their lives. Since the superintendent knew these statistics and had been warned that pat-downs could lead to psychological trauma in women who had been abused, and since the superintendent could not show that the searches were necessary for security reasons, the court called the search policy “wanton and unnecessary” and held it unconstitutional. Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993). There are also some good cases about cross-gender strip searches done in unreasonable ways in Section E of this Chapter.

The Department of Justice National Standards on the PREA includes a ban on cross-gender pat-down searches of female prisoners. 28 C.F.R. § 115.15.

Courts are more likely to uphold invasions of your privacy by male prison guards when there is an emergency situation. For example, the Jordan court did not prohibit all cross-gender searches of prisoners, despite the women’s histories of abuse; it only found “random” and “suspicionless” searches by male guards unconstitutional. In contrast, another court approved of a visual body cavity search performed on a male prisoner in front of female correctional officers because the officer performing the search believed the situation to be an emergency, even though it was not. Cookish v. Powell. 945 F.2d 441 (1st Cir. 1991).

J Issues of Importance to Pretrial Detainees

Not everybody who is incarcerated in a prison or jail has been convicted. Many people are held in jail before their trial and are referred to in the Handbook as “pretrial detainees.” As a practical matter, different legal standards for treatment of detainees don’t usually lead to different outcomes for detainees and convicted prisoners. But sometimes the difference matters.

As you know from the above sections, the Eighth Amendment prohibits cruel and unusual punishment. This protection only applies to people who have already been convicted. Since detainees have not been convicted, they may not be punished at all until proven guilty. One legal result of this is that jail conditions for pretrial detainees are reviewed by courts under the Fifth or Fourteenth Amendment Due Process Clause, not the Eighth Amendment prohibition of cruel and unusual punishment.

The most important case for pretrial detainees is Bell v. Wolfish, 441 U.S. 520 (1979), which was a challenge to the conditions of confinement in a federal jail in New York. In Bell, the Court held that jail conditions that amount to punishment of the detainee violate due process. The Court explained that there is a difference between punishment, which is unconstitutional, and regulations that, while unpleasant, have a valid administrative or security purpose. It held that regulations that are “reasonably related” to the institution’s interest in maintaining jail security are not unconstitutional punishment, even if they cause discomfort. This is why detainees can be put into punitive segregation or SHU.

You can prove that poor conditions or restrictive regulations are unconstitutional punishment in two different ways:

1. by showing that the prison administration or individual guard intended to punish you, or

2. by showing that the regulation is not reasonably related to a legitimate goal. This can be because the regulation doesn’t have any purpose or because it is overly restrictive or an exaggerated response to a real concern. On example of a case like this is Pierce v. County of Orange, 526 F.3d 1190 (9th Cir. 2008). In that case, a court held there was no legitimate reason for pretrial detainees in SHU to only get 90 minutes of exercise per week.

As with the Turner standard (discussed in Section A) for convicted prisoners, courts defer to jail officials in analyzing what is a “legitimate concern.” Security is a legitimate concern of jail officials, too. This is why many jail conditions can be like those in prison.

Although the standard in Bell for analyzing the claims of pretrial detainees is well-established, the courts are not in agreement as to whether the content of that standard is actually any different from the content of the Eighth Amendment standard explained in Section F. In City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), the Supreme Court held that pretrial detainees have due process rights that are “at least as great” as the Eighth Amendment protections available to prisoners. However, when faced with claims by pretrial detainees, many courts simply compare the cases to Eighth Amendment cases. If you are a pretrial detainee, you should start by reading Bell v. Wolfish, and then research how courts in your circuit have applied that standard.

One major and recent difference between pretrial detainees and convicted prisoners is in what state of mind prison officials must show for you to win your claim. In a very important case named Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the court considered an excessive force claim by a pretrial detainee. The court held that a detainee can win an excessive force claim if the force used against him was objectively excessive. A detainee doesn’t need to prove that the officer was malicious or sadistic. This is an easier standard to meet than the standard for convicted prisoners, who have to show intent to cause suffering or punishment.

Some courts have applied Kingsley’s reasoning to other issues outside the excessive force context. For example, in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) a court held that a pretrial detainee bringing a failure-to-protect claim also only needs to show objective unreasonableness. In Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019), a court extended this objective-only standard to a conditions-of-confinement claim brought by pretrial detainees who were forced to live for three days without clean water. In Gordon v. County of Orange, 888 F.3d 1118 (9th Cir. 2018) a court applied the objective standard to a pretrial detainee’s medical care claim. And in Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2006) a court held that pretrial detainees only need to show objective unreasonableness for a conditions-of-confinement claim. However, not all the courts agree that Kingsley should be extended in this way. An example of a bad decision limiting Kingsley is Whitney v. City of St. Louis, Missouri, 887 F.3d 857 (8th Cir. 2018).

Unfortunately, not all the recent legal developments for pretrial detainees have been good. In Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318 (2012), the Supreme Court decided that it is constitutional to strip search all detainees upon admission to jail even without reasonable suspicion they had contraband. Some lower courts had previously found these kinds of suspicionless searches of detainees unconstitutional. But after Florence, those cases are no longer good law.

Despite the Supreme Court’s decision in Florence, pretrial detainees may have more protection from some types of searches than convicted prisoners. One good case to read is Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal. 2009), in which a court held it was unconstitutional to strip search detainees in a group. The jail tried to justify the group strip search as necessary for administrative ease. The court disagreed, stating that administrative burdens and inconvenience do not justify constitutional violations.

The Second Circuit has also stated that pretrial detainees retain a limited expectation of privacy under the Fourth Amendment that protects them from searches that are not done for legitimate security reasons. This means that the jail cannot search your cell looking for evidence to use against you in trial; they can only search for contraband or other risks to jail security. United States v. Cohen, 796 F.2d 20 (2d Cir. 1986). Other courts do not agree with the Second Circuit on this.

In a few states, under state law, pretrial detainees retain a similar “limited but legitimate expectation of privacy…[if] the search of the pretrial detainee's cell is…solely for the purpose of uncovering incriminating evidence which could be used against the detainee at trial, rather than out of concern for any legitimate prison objectives.” State v. Henderson, 271 Ga. 264, 267 (1999). See also Rogers v. State, 783 So.2d 980 (Fla. 2001).

One other area in which pretrial detainees may get more protection is around procedural due-process challenges to placement in segregation. Most courts have held that Sandin v. Connor (discussed in Section D of this chapter) does not apply to detainees, so they don’t need to meet the “atypical and significant hardship” standard. For example, in Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996), one appellate court held that pretrial detainees may be subject to disciplinary segregation only after a due process hearing to determine whether they have violated any rule, regardless of whether the conditions in segregation are so serious and unusual as to create a liberty interest. Another good case on this issue is Williamson v. Stirling, 912 F.3d 154 (4th Cir. 2018), involving a pretrial detainee held for three years in solitary confinement for one threat.

K Issues of Importance to Non-Citizens and Immigration Detainees

Since Congress changed the immigration laws in 1996, more and more non-citizens are being held in detention centers or jails during their immigration cases, or while they are waiting for deportation, even though they are not convicted criminals or even pretrial detainees. When a person is held in custody by the Immigration and Customs Enforcement agency (ICE) they are called “immigration detainees” rather than prisoners.

If you are ordered removed while serving your criminal sentence or if you are fighting your immigration case while in prison, you could be detained after you have finished serving your sentence and held for an uncertain period of time before you are deported from the country or your immigration case is decided.

As an immigration detainee, you have most of the same constitutional rights to decent treatment as citizens do. Like pretrial detainees, immigration detainees can challenge the conditions of their confinement under the Due Process Clause of the Fifth Amendment, which protects any person in custody from conditions that amount to punishment. See Wong Wing v. United States, 163 U.S. 228 (1896).

Immigration detainees in federal facilities may have trouble bringing constitutional claims for money damages because of the changes in Bivens actions describe in Chapter 2, Section D. Most of the cases described below involve immigration detainees held in state or local facilities, or suing to change their conditions rather than suing to get money.

The Supreme Court has not yet determined what due process standard should be used to analyze conditions and abuse challenges by people in immigration detention. Some courts have acknowledged that it is not yet clear how immigration detainees’ claims should be treated. In Preval v. Reno, 203 F.3d 821 (4th Cir. 2000), the Fourth Circuit reversed a lower court ruling on a case brought by immigration detainees because the district court had dismissed their claims using the standard for pretrial detainees without giving the detainees the opportunity to argue about the correct standard.

That said, most courts have held that such challenges should be analyzed under the Bell standard for pretrial detainees, discussed above. For an example of this point of view, read E.D. v. Sharkey, 928 F.3d 299 (3d Cir. 2019). In E.D. the court allowed a female immigration detainee to sue a guard for sexual assault, and the guard’s supervisors for failure to protect. Other recent cases analogizing to pretrial detainees are Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) and Chavero-Linares v. Smith, 782 F.3d 1038 (8th Cir. 2015). In considering due process claims by immigration detainees, the courts have stated that the Eighth Amendment sets a floor for those rights. This means that immigration detainees have at least that much protection under the Eighth Amendment. It is not clear if they have more.

If you are an immigration detainee, you may want to argue that you deserve a standard that is more protective of your rights than the standard for pretrial detainees or convicted prisoners because you are a civil detainee and have not gotten the usual protections that courts give defendants in the criminal justice system. Some courts have explicitly stated that the Eighth Amendment “does not set a ceiling” on due process rights. In other words, immigration detainees may get more protection under the Due Process Clause than convicted prisoners get from the Eighth Amendment. This means that some conditions courts find lawful for prisoners, might not be lawful for detainees. Crosby v. Georgeakopoulos, No. 03-5232, 2005 U.S. Dist. LEXIS 32238 (D.N.J. June 24, 2005). One case applying a civil standard for due process claims by immigration detainees is In re Kumar, 402 F. Supp. 3d 377 (W.D. Tx. 2019).

Although not a case involving immigration detainees, in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), a court decided that conditions for other “civil detainees,” those who have a mental illness or face civil commitment for a sex offense, must be better than conditions for pretrial criminal detainees. If people facing civil commitment are held in the same conditions as criminal detainees, the Ninth Circuit will presume the conditions are punitive, and thus unlawful. If you are an immigration detainee held in a jail or prison, or if your conditions are identical or more restrictive than conditions for pretrial detainees or prisoners, you may want to argue that the court should presume your conditions are punitive and unconstitutional.

You should look at cases from your jurisdiction to see which approach, if any, courts in your area have taken.

You can also argue that, because the correct standard is unclear, the court should appoint an attorney to represent you. You may have a good chance of getting appointed a lawyer if you are an immigration detainee held in a private facility, as that raises multiple complex questions of law. In Agyeman v. CCA, 390 F.3d 1101 (9th Cir. 2004), for example, the Ninth Circuit said the lower court abused its discretion when it did not appoint counsel to an immigration detainee who sued a private corporation because the case was very complex. See also Sanusi v. Immigration and Naturalization Service, 100 Fed. Appx. 49 (2d Cir. 2004).

The law is even less clear for non-citizens who are arrested while entering the United States without a valid visa, or who are arrested after entering without inspection. These people are called “inadmissible,” and the government sometimes argues they should get even less legal protection than other non-citizens. One of the first cases to address this issue was Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987). In Lynch, sixteen Jamaican stowaways claimed that they were abused while in the custody of the New Orleans harbor police. For ten days they were locked in a short-term detention cell without beds, mattresses, pillows, or heaters. Defendants kept them handcuffed and forced them to work while shackled. The police hosed them down with fire hoses, beat them, shot them with a stun gas, and locked them in shipping containers.

When the non-citizens sued, the defendants in Lynch argued that “inadmissible” aliens have “virtually no constitutional rights.” The Fifth Circuit disagreed and held that due process protects “persons” whether or not they are citizens or legal residents. The court held that immigration detainees are “entitled under the due process clauses of the Fifth and Fourteenth Amendments to be free of gross physical abuse at the hands of state or federal officials.”

Unfortunately, some courts have taken this language to be the outer limit of due process protection for inadmissible aliens. For an example of this type of reasoning, read Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). We think that all detainees should be protected from far more than “gross physical abuse,” whether they are inadmissible or deportable, and urge you not to use this standard in your papers. If the defendants in your case use this standard, you could point out that it doesn’t make sense to offer civil immigration detainees less protection than convicted criminals get under the Eighth Amendment.

There are almost no cases addressing the application of the Fourth Amendment’s prohibition on “unreasonable searches and seizures” to immigration detainees. Because searches can be based on similar security concerns in all types of detention, most courts treat prisoners, pretrial detainees, and immigration detainees the same, although those who have not been convicted of a crime may have somewhat more success in challenging the worst searches, like strip or body cavity searches. One unlawful search case involving an immigration detainee is Al-Shahin v. DHS, No. 06-5261, 2007 U.S. Dist. LEXIS 75018 (D.N.J. Oct. 4, 2007).

Under Immigration and Customs Enforcement’s (ICE) 2011 Performance-Based National Detention Standards (PBNDS), strip searches in immigration detention centers are prohibited unless there’s a reasonable suspicion of contraband possession. An updated guideline also calls for strip searches to be performed by staff of the same gender as the detainee and for transgender individuals to choose the gender of the staff member conducting a body-cavity search. Like other regulations in this book, these are guidelines rather than binding rules, so you cannot sue to enforce them. Instead, you can use them as evidence of what is reasonable and what is not. When using such guidelines, you should also check to see if your individual facility has a different policy in place.

A 2013 case brought by immigration detainees against the Department of Homeland Security (DHS) and ICE alleged that their First Amendment rights were violated because telephone services are unduly restrictive and expensive, limiting the contact of immigration detainees with counsel. The case, Lyon v. Immigration and Customs Enforcement, No. C-13-5878 (N.D. Cal. 2014), was certified as a class action in 2014, and settled in 2016 with ICE agreeing to provide greater access to phones and free pro bono immigration attorneys. More information on the settlement is available at: https://www.aclunc.org/news/aclu-settlement-ice-will-allow-immigrants-held-detention-use-functional-telephones-contacting.

Also, similarly to pretrial detainees, the law about placement in segregation without due process may be better for immigration detainees than for convicted prisoners. One good case to read on this issue is Bromfield v. McBurney, No. 07-cv-5226RBL, 2008 U.S. Dist. LEXIS 11844 (W.D. Wash. Jan 14, 2008).

Prison Litigation Reform Act (PLRA) and Exhaustion Requirements

Every circuit court to address the issue has held that the PLRA does not apply to immigration detainees because they are not “prisoners” within the meaning of the Act. This means that the restrictive provisions of the PLRA discussed in Chapter 2, Section E and throughout this handbook do not apply to you, including the exhaustion requirement, filing fees, and three strikes provisions. Some examples of these cases include Ojo v. INS, 106 F.3d 680 (5th Cir. 1997); LaFontant v. INS, 135 F.3d 158 (D.C. Cir. 1998); Preval v. Reno, 203 F.3d 821 (4th Cir. 2000); Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002). See also Page v. Torrey, 201 F.3d 1136 (9th Cir. 1999); Troville v. Venz, 303 F.3d 1256 (11th Cir. 2002); Perkins v. Hedricks, 340 F.3d 582 (8th Cir. 2003) (holding that the PLRA does not apply to people who have been civilly committed).

However, that doesn’t mean you can ignore the detention center grievance system or the Immigration and Customs Enforcement (ICE) administrative complaint process. Before Congress passed the PLRA, courts created their own exhaustion requirements, and those may apply to you. The Supreme Court held in McCarthy v. Madigan, 503 U.S. 140 (1992), that courts need to balance a person’s right to go to court to sue over injustice against an institution’s interest in having you use whatever grievance system they have set up. Under this balancing test, there are three arguments you can make to allow you into court before exhausting: (1) if exhaustion would somehow hurt your ability to sue, for example because it might take too long; (2) if the institution’s grievance system can’t give you what you want, for example money damages; or (3) if the institution is biased or has already decided the issue against you. Still, it is safer to use or try to use any grievance system that ICE or the jail or detention center has before you sue.

L Protection of Prisoners Under International Law

Along with the United States Constitution, your state constitution, and federal and state laws, another potential source of protection for prisoners is international law.

Using international law in United States courts can be complicated and controversial so you may not want to attempt it without a lawyer. Some judges may be hostile to even the mention of international law.

International law gets more recognition in the United Nations (UN). Also, many countries in North and South America are part of the Organization of American States (OAS), which has its own human rights system which is talked about below. These different systems have procedures which you might be able to use to help in your case.

The UN or the OAS human rights system might be able to address either your individual case or widespread prison conditions. While these strategies are not binding in the way that court decisions are, they may help bring awareness to your treatment and encourage authorities to address your case. They can be a low-cost supplement to highlight violations of rights. This section will outline some basic facts about international law and provide you with resources in case you want to explore the area further. A very important article to read is William Quigley and Sara Godchaux, Prisoner Human Rights Advocacy, 16 Loy. J. Pub. Int. L. 359 (2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2702550. Many of the topics discussed below are drawn from that article, and it goes into more depth.

Also, while you will probably be unable to sue directly under human rights treaties, each treaty has a treaty body that monitors whether the United States is following the rules set out in the treaties. You can contact a human rights group, like Human Rights Watch, and ask for help sending a letter to one of those bodies.

Human Rights Watch is an organization that monitors the conditions in prisons and publishes reports on prisons. They answer mail from prisoners, and they also send free reports that you can use to support your legal claims. Their contact information is in Appendix I.

1. Sources of International Legal Protection

There are two main sources of international law: “customary international law” and treaties. Customary international law is unwritten law based on certain principles that are generally accepted worldwide. Treaties are written agreements between countries that set international legal standards. Under Article VI, section 2 of the United States Constitution, treaties are part of the “supreme law” of the land. Customary and treaty-based international law are both supposed to be enforceable in the United States, but this is often controversial.

Customary international law prohibits practices that violate generally accepted human rights standards, such as slavery, state-sponsored murders and kidnappings, torture, arbitrary detention, and systematic racial discrimination. Restatement (Third) of Foreign Relations Law, Section 702 (1987). United States’ courts have recognized that some of these practices violate customary international law. For example, in Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980), the court recognized that torture violates customary international law.

Prisoners are guaranteed human rights under many sources of international law, including the 1948 Universal Declaration of Human Rights (UDHR), which guarantees that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The UDHR was the first time that the fundamental rights of people were agreed upon by the international community. The UDHR lays out many basic rights, including rights to life, liberty, and security, and the right to an adequate standard of living. The 1976 International Covenant on Civil and Political Rights (ICCPR) also contains numerous protections for prisoners, including requiring that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

There are two steps for a country to become party to an international treaty: signing and ratifying. The United States has ratified the ICCPR but did so with many exceptions (which are called “reservations”), and Congress has not yet passed laws to implement it. The United States has many reservations to human rights treaties that limit your ability to use them to their full potential. This is one reason why courts will rarely accept arguments based on treaties.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was enacted in 1984 to prohibit intentional infliction of severe physical or mental pain. The U.S. also ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which prohibits racial and ethnic discrimination.

The United Nations has endorsed Standard Minimum Rules for the Treatment of Prisoners. The standards cover prison conditions, including treatment, healthcare, restraints, food, and searches. The rules were updated in 2015 and named the “Nelson Mandela Rules.” They do not have the force of law in the United States, but they are an important reference point.

It is extremely difficult to bring a successful international claim in a United States court. However, some prisoners have found it useful to discuss international standards in suits based on more established domestic law. For example, one state court referred to standards set out in the International Covenant on Civil and Political Rights when deciding that searches of prisoners by guards of the opposite sex violated their rights under the Eighth Amendment. Sterling v. Cupp, 625 P.2d 123, 131 n.21 (Or. 1981). The First Circuit Court of Appeals acknowledged that “the Supreme Court and lower federal courts have frequently consulted the ICCPR as an interpretive tool to determine important issues in the area of human rights law.” Garcia v. Sessions, 856 F.3d 27, 60 (1st Cir. 2017).

In Atkins v. Virginia, 536 U.S. 304 (2002), the Court struck down the death penalty for the intellectually disabled, noting that the practice was “overwhelmingly disapproved” in the world community. Later, in Roper v. Simmons, 125 S. Ct. 1183 (2005), the court relied even more heavily on international law and practice when it struck down the death penalty for juvenile offenders. In fact, even in her dissent from the court’s ruling in Roper, Justice O’Connor acknowledged that international law and practice was relevant to the court’s analysis when she observed: “Over the course of nearly half a century, the court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency…At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus.”

2. Filing a Complaint to the United Nations Special Rapporteur on Torture

The main way that prisoners can file an individual human rights complaint is directly to the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Special Rapporteur on Torture). The United Nations has 38 human rights experts who report on specific themes of human rights, and each expert is called a Special Rapporteur. The expert on prison human rights issues is the Special Rapporteur on Torture.

The Special Rapporteur may get involved in cases of prolonged detention without communication, solitary confinement, torturous conditions, denial of medical treatment and nutrition, means of restraint contrary to international standards, and threats of excessive force by officials. The Special Rapporteur on Torture has repeatedly criticized numerous U.S. prison practices, including the use of solitary confinement on many types of people including juveniles, individuals with disabilities, those serving life sentences or on death row, and pregnant and breastfeeding women.

Keep in mind that the Special Rapporteur does not have enforcement power. Filing a complaint with them is not like filing a lawsuit. However, the Special Rapporteurs are an important opportunity for advocacy, organizing, and drawing attention to abuses you have suffered.

Here are a few examples of times when the Special Rapporteur was able to get involved and helped in cases:

In 2009, the Special Rapporteur investigated widespread reports of pregnant women in U.S. jails and prisons being restrained by their ankles and wrists while being transported to the hospital and undergoing childbirth. Since then, many states have passed laws and regulations banning this practice.

In 2010, the Special Rapporteur on Torture was asked to investigate use of electric shock and indefinite restraints in treating juveniles in a residential program in Canton, Massachusetts. The Rapporteur looked into it and asked the U.S. government to investigate and respond. As a result, new regulations were put in place to prevent that type of treatment.

In March 2012, twenty California prisoners and fifteen organizations filed a complaint to the Special Rapporteur on Torture on behalf of 4,000 prisoners held in isolated segregation. The outreach to the Rapporteur was part of a broader organizing effort that included a federal lawsuit by the Center for Constitutional Rights and a peaceful hunger strike by thousands of prisoners to protest solitary confinement. The federal lawsuit and the organizing eventually led to a settlement ending the use of indefinite solitary confinement in California prisons.

Even just getting the Special Rapporteur to ask questions about a prisoner’s treatment can sometimes play an important part of a larger advocacy or legal strategy. For example, in 2012, a human rights complaint was filed on behalf of Russell Maroon Shoatz, a Pennsylvania prisoner who had spent twenty-one years in solitary confinement. The Rapporteur also called on U.S. authorities to end solitary confinement of a Louisiana man, Albert Woodfox, after four decades. Woodfox was released in 2016.

Finally, the Rapporteur asked the U.S. to investigate the detention of Daniel Chong by the Drug Enforcement Administration (DEA) who was arrested for smoking marijuana and left handcuffed in a small cell for days without food or water.

If you would like to file a complaint with the Special Rapporteur, you have to fill out a model questionnaire and answer the questions. This can be completed either by you or by representatives. That model questionnaire is attached as Appendix G to this Handbook. The address of the Special Rapporteur is:

Special Rapporteur on Torture
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland

3. Sending a Petition to the Inter-American Commission on Human Rights (IACHR)

The United States is a member of the Organization of American States (OAS), and is bound to the provisions of the American Declaration on the Rights and Duties of Man. This is a human rights system that is regional to the Americas, unlike the United Nations or other treaties which are global. The Inter-American Commission on Human Rights is an independent part of the OAS that looks at possible human rights violations in the Americas. Individuals can present petitions to the Commission once available remedies have been pursued and exhausted in domestic courts.

This means that you can only file a complaint to the IACHR after you have gone through the U.S. legal system. Complaints need to be filed six months after exhausting domestic legal remedies or showing that remedies are futile. The IACHR publishes a helpful informational brochure, available at https://www.oas.org/en/iachr/docs/pdf/howto.pdf.

Once a petition is filed, the IACHR decides whether or not the petition meets its requirements. If it does, then the IACHR contacts the United States for a response.