LITIGATION DOCKET

2002-2003 LITIGATION DOCKET ARIZONA Canadian Coalition Against the Death Penalty, et al. v. Stewart (D. Ariz.). In 2000, the Arizona legislature passed and the Governor signed House Bill 2376, which makes it a crime for prisoners to have access to the internet. Since then, Arizona prisoners who have information about themselves or their cases posted on the websites of various nonprofit organizations have been punished with loss of visits, telephone calls, and other privileges. Prisoners are also banned from corresponding with any organization that maintains a website. On July 18, 2002, the NPP filed suit in federal court, seeking a declaration that HB 2376 violates the First Amendment. The clients are the Canadian Coalition Against the Death Penalty, Citizens United for Alternatives to the Death Penalty, and Stop Prisoner Rape, three nonprofit organizations that post information about prisoners on their internet websites. On December 16, 2002, the judge granted plaintiffs motion for a preliminary injunction and enjoined correctional officials from enforcing the statute. In May 2003 the judge entered a final order permanently enjoining the state statute. Hart v. Arpaio (D. Ariz.). Sheriff Joe Arpaio, the self-styled toughest Sheriff in America, who runs the Maricopa County Jail in Phoenix, filed a motion to terminate an existing consent decree that protects the rights of pre-trial detainees regarding medical care, mental health care, overcrowding, and protection from assault, among other provisions. The NPP has entered the case at the request of local counsel to protect the decree from termination. COLORADO Darbyshire v. Extraditions International, Inc. (D. Colo.). On April 11, 2002, the NPP filed suit against Extraditions International, Inc., a private prisoner-transport company, and two of its ex-employees. The suit alleged that a driver/guard for Extraditions International sexually harassed, threatened with death, and sexually assaulted Robin Darbyshire, a prisoner in his custody, and that the company was deliberately indifferent to the threat posed by the driver. Defendants also subjected Ms. Darbyshire, as well as the other prisoners, to unsafe and inhumane conditions of confinement: during a four-day transport, the van never stopped at a secure facility to allow the prisoners to rest and shower; the prisoners remained shackled for the entire time; the prisoners were only allowed to use restrooms every ten to twelve hours; the prisoners were given water only once; the van was driven in a reckless and erratic manner. On August 9, 2002, an amended complaint was filed, adding as a defendant American Extraditions, Inc., a successor corporation to which the assets of Extraditions International, Inc. had been transferred. In March 2003 we

reached a settlement with all defendants under which the plaintiff received monetary damages. Garcia v. County of El Paso (D. Colo.) In 1985, following a suicide at the El Paso County Jail, the County entered into a consent decree to improve mental health services and suicide prevention measures at the Jail. In March of 2003, the County moved to terminate the decree under the Prison Litigation Reform Act (PLRA). Working with the Colorado affiliate, the NPP entered the case as counsel for the plaintiffs to oppose the termination motion. The NPP filed motions seeking to allow several current prisoners to intervene and requesting that the court certify the case as a class action. On November 25, 2003, the court denied the motion to intervene and terminated the consent decree. Shook v. Board of County Commissioners of the County of El Paso (D. Colo. & 10 th Cir.) This is a challenge to inadequate mental health care in the El Paso County Jail in Colorado Springs, Colorado. The badly overcrowded Jail, whose population regularly exceeds 1,000, has only two hours of psychiatric services per week. Ten prisoners have died in the Jail since May 1998, including two who committed suicide in 2001 and another who recently committed suicide; one who died while tied to the Jail s restraint board; and a prisoner suffering from alcohol withdrawal who died after being repeatedly pepper-sprayed by deputies. The Jail also fails to provide necessary psychotropic medication; fails to provide inpatient hospitalization for mentally ill prisoners who need it; and uses restraints on mentally ill prisoners in an improper and unsafe manner. On January 15, 2003, the judge heard oral argument on defendants motion to dismiss and plaintiffs motion for class certification. On July 29, 2003, the court denied the defendants motion to dismiss but denied class certification. The denial of class certification is on appeal to the Tenth Circuit. CONNECTICUT Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Choinski (D. Conn.). This case, filed in August 2003, challenges the conditions under which mentally ill prisoners are held at Connecticut s supermax prison. The plaintiff is the independent agency empowered under federal law to sue to protect the rights of persons with disabilities. The parties are engaged in settlement discussions and have been meeting with a federal mediator. Wiseman v. Armstrong (Conn. S. Ct.) On September 29, 2003, the NPP joined an amicus brief arguing that the Connecticut Patients Bill of Rights should apply to incarcerated persons. Oral argument is scheduled for January 12, 2004. DISTRICT OF COLUMBIA Caldwell v. Washington (D.D.C.) 2

In a previous case, the court had appointed the NPP to represent the plaintiff regarding his confinement in a disgusting mental health unit, despite his lack of any mental illness. In addition, the defendants had failed to treat his skin cancer and glaucoma, causing him injuries. The jury awarded him compensatory and punitive damages totaling about $175,000. Following that case, the defendants transferred the plaintiff to the District of Columbia Jail, where he continued to encounter unsafe and inhumane conditions. In addition, he was again diagnosed with skin cancer in April 2001, but the defendants failed to provide any treatment for that cancer until December 2001, by which time treatment of the cancer involved removing a substantial amount of skin from his face. In January 2003, the plaintiff accepted an offer of judgment from defendants for damages of $55,000. Jerry M. v. District of Columbia (D.C. Super.) The NPP has reentered this case, originally filed by the NPP, challenging conditions and practices involving D.C. juveniles. In 1986 the parties agreed to a consent decree, but the District has failed to come into compliance. A hearing in August 2000 revealed that the District was violating provisions regarding population limits, diagnostic services, programming, and aftercare services, among others. In January 2001, the judge issued an order setting new compliance deadlines for all provisions of the Consent Decree. In April 2002, after the court monitor reported that the defendants had failed to achieve substantial compliance with a majority of the new deadlines, the plaintiffs asked the court to set a hearing on contempt. That hearing, dealing with issues such as the failure to provide even minimal amounts of exercise, failure to provide necessary treatment, and the failure to provide the pre-release unit required under the Consent Decree, was held in September 2002. Following that hearing, the plaintiffs filed additional motions for enforcement and contempt regarding the defendants failure to protect girls at Oak Hill from sexual assault and the failure to provide youth with dental care. The court immediately granted an order requiring dental care. In June 2003, the court held the defendants in contempt for a number of violations of the consent decree and ordered the defendants to cure that contempt by September 4, 2003. Following the contempt order and a series of front-page articles in the Washington Post, District officials asked for the resignation of the head of the agency we are suing and announced the formation of a new Task Force to obtain compliance with the consent decree. In September and October 2003 the court conducted hearings on whether the defendants had purged their contempt, and on whether they were in contempt of court on additional provisions of the consent decree. A separate part of the Consent Decree involves placement of youth in facilities not directly operated by the District of Columbia. In August 2001 the parties, after protracted negotiations, reached an agreement on the mechanism for compliance with the consent decree requirements affecting these placements. In December 2002 the expert reviewing compliance pursuant to the parties agreement filed her final report, finding among other things that the District s shelter homes provide inadequate care in physical facilities that are unacceptable; that services for substance abuse have not 3

been developed; and that the District has failed to develop necessary specialized treatment placements, with the result that there are delays in services while children await placement in facilities far from their homes. On December 8, 2003, the plaintiffs filed a motion to give control of operations of the juvenile system to a court-appointed receiver. FLORIDA Carruthers v. Jenne (S.D. Fla.) This is a longstanding class action suit regarding conditions at the Broward County Jail. The case was settled in 1994, resulting in a consent decree mandating a population cap, and improvements in various operations at the jail. On August 30, 1996, the defendants filed a motion to terminate the decree pursuant to the PLRA, arguing that they were in compliance with the terms of the decree. The NPP joined this case to assist local counsel in preparing for the evidentiary hearing. On March 15, 2002, three court-appointed experts filed reports regarding conditions at the jails. The experts identified numerous overarching and systemic problems, including that unnecessary and excessive force is often employed by BCDD correctional staff, that reviews of use-of-force incidents are inadequate and that there is a lack of meaningful disciplinary sanctions for serious violations of use-of-force policies; that BCDD's use of the restraint chair is not properly regulated or documented; that the jail does not provide medical staff with appropriate training and medical staff do not exercise appropriate medical judgment; and that many inmates with serious mental disorders (often associated with active psychotic features) were not receiving adequate mental health treatment. In January 2003 the court-appointed experts conducted another round of inspections. They concluded that the jail had made improvements in medical services, classification, and disciplinary segregation, but that problems persisted in the areas of mental health and use of force. The trial had been scheduled for April 2003, but it was postponed to allow the parties to engage in settlement discussions. In October 2003 the parties reached an agreement under which the court-appointed experts will reinspect the Jail and issue a report, after which the court will hold a hearing to determine if any constitutional violations remain. In November and December 2003, the three court-appointed experts toured the facilities for the third time. The termination hearing is currently scheduled for February 2004. IDAHO Gomez v. Vernon (D. Idaho & 9 th Cir) This case challenged a long-standing pattern and practice of retaliation by correctional staff against prisoners who brought civil rights lawsuits or submitted grievances about the conditions of their confinement. On the eve of trial, plaintiffs learned that Deputy Attorneys General for the State had been secretly reading the confidential lawyer-client mail between the ACLU and the plaintiffs. An eight-week trial was completed in March 1998. In 1999, the court issued an opinion finding that a 4

number of prisoners had suffered retaliation, and it ordered individual injunctive relief. Subsequently, the court issued an opinion sanctioning defendants lawyers for secretly reading the plaintiffs lawyer-client mail. The defendants appealed to the Ninth Circuit, which affirmed all aspects of the District Court s rulings. Defendants filed a petition for review by Supreme Court, which was denied in December 2001. The plaintiffs fees petition is pending in the Ninth Circuit. In December 2003 the State Bar recommended that the Idaho Supreme Court suspend the licenses to practice law of the two state lawyers who had read our confidential attorney-client mail. INDIANA Anderson v. Orr (N.D. Ind.) This class action case resulted in a consent decree covering medical and mental health care, among other issues, at the Westville Correctional Center. Plaintiffs recently have been investigating prisoner-on-prisoner violence, gang activity, staff misconduct, and drug trafficking at the facility. Hendrix v. Farley (N.D. Ind.) This case was originally filed over 20 years ago alleging that the totality of conditions at the Indiana State Prison (ISP) violated the prisoners' Eighth Amendment rights. Following a bench trial, a federal judge found that the facility was unconstitutionally overcrowded, and imposed a population cap at the prison. On appeal, the Seventh Circuit upheld the population cap, and determined that the prison's medical care system was unconstitutional. The parties thereafter entered into an Agreed Entry regarding health care at ISP. The Agreed Entry requires ISP to hire a medical director, sets medical staffing requirements, and requires ISP to develop and implement appropriate medical protocols. Post-judgment monitoring is ongoing. The NPP recently entered the case to conduct post-judgment monitoring. LOUISIANA Doe v. Foti (E.D. La.) The NPP serves as co-counsel with the Youth Law Center in this class action challenging conditions at the Conchetta Facility which houses juveniles as part of the Orleans Parish Prison in New Orleans. The case challenges physical abuse of juveniles, lack of educational programs, lack of medical and mental health care, unsafe environmental conditions, and inadequate visitation policies. The parties have now settled all issues. Hamilton v. Morial (E.D. La.) This class action, initially filed in 1969, challenges conditions at the Orleans Parish Prison (New Orleans Jail). The NPP entered the case in 1989 as class counsel, and over the next six years negotiated settlements on the medical care, mental health care, physical plant and fire safety claims, and continue to monitor defendants compliance with the settlement agreements. The defendants are constructing a new mental health facility to enable more programming for mentally ill prisoners, following several reports by plaintiffs expert that programming space was severely inadequate. 5

The facility is expected to be online in early 2003. In 2002 the court held a hearing on the use of restraints in the jail after a mentally ill prisoner died of dehydration while he was in four-point restraints. The court denied relief in a decision on December 23, 2003. In addition, in early 2003 plaintiffs filed a motion regarding the defendants failures to treat prisoners with Hepatitis C. In December 2003 the court-appointed medical expert filed a report recommending changes in how the defendants treat patients with Hepatitis C. A mental health expert toured the facility in the summer of 2003. Lambert v. Morial (E.D. La.) This case challenged the conditions for women prisoners in the Orleans County Parish (New Orleans Jail). It has been consolidated with Hamilton v. Morial, supra. MARYLAND Duvall v. Glendening (D. Md.) In August 2002, the NPP, working with the Maryland ACLU and local counsel, discovered that female detainees in the jail were being exposed to heat in excess of 115 degrees because the facility was unventilated. As a result, pregnant women and women with chronic diseases were at great danger of immediate injury or death. The plaintiffs sought reopening of the case and an injunction safeguarding the women. Shortly before a scheduled hearing on plaintiffs motion was set to begin, the defendants agreed to a consent order admitting that conditions related to the heat and lack of ventilation in the facility violated the Eighth Amendment. In July 2003 we filed a motion for enforcement of the consent order. The Jail subsequent installed additional air conditioners, improved the ventilation, and made other changes. On August 6, 2003, the judge held a hearing on compliance. After the hearing, the judge ordered the parties to continue to consult about additional improvements and indicated that he would hold a follow-up hearing to gauge progress. Subsequently, the defendants indicated that they are requesting funds to install a cooling system throughout the facility that should keep the temperature below 85 degrees. The plaintiffs have continued to investigate other problems at the Jail involving failures to provide medical, mental health, and dental care, as well as deficient housing, sanitation, laundry facilities, food services, plumbing, and vermin eradication at the Jail. On December 18, 2003, we filed a motion to reopen a 1993 consent decree covering these conditions so that the court could address these problems. MICHIGAN Hadix v. Johnson (W.D. Mich. & 6 th Cir.) In 1992 the NPP was asked to enter this case by local counsel. In 1996 the defendants filed a PLRA motion to terminate a consent decree covering medical and mental health issues, and asked the court to recognize an automatic stay (suspension) of the consent decree. The district court held this stay provision of PLRA unconstitutional, and the defendants appealed to the Sixth Circuit. In May 1998, the 6

Sixth Circuit rejected the defendants contentions on statutory rather than constitutional grounds. In May 2002 the court held another trial on medical care, disability accommodations, heat and ventilation, and fire safety issues. Plaintiffs evidence demonstrated, among other things that delivery of medications for chronic diseases is completely unreliable, that prisoners who need specialized treatment like chemotherapy routinely have that treatment interrupted and delayed, that prisoners who report symptoms that require urgent attention frequently are not seen in a timely fashion and suffer harm as a result, and that a number of prisoners have suffered harm because of exposure to excessive heat. On October 29, 2002, the judge issued a comprehensive decision finding in plaintiffs favor on all issues. In connection with that decision, the judge issued an order requiring that the defendants develop a plan to protect all prisoners at heightened risk for heat injury by placing them in temperature-controlled housing when the heat index rises above 90 degrees. In a subsequent order following further briefing from the parties, the judge mandated major structural changes to provide necessary fire safety. The defendants appealed to the Sixth Circuit from both the order related to prevention of heat injury and the fire safety order. The Sixth Circuit has denied defendants request for a stay of the fire safety order pending the defendants submission of a plan for remedying the deficiencies. That plan is due on December 31, 2003. At plaintiffs request, the Sixth Circuit remanded the heat order to the district court for entry of further findings and we are currently conducting discovery on that issue. Following a meeting with plaintiffs and the court monitor in September 2003, the defendants withdrew their proposed remedy for the medical violations, and have submitted a revised proposal. The plaintiffs responded to that proposal in November 2003, and we are awaiting a ruling from the district court. For legal access aspects of Hadix, see Knop v. Johnson, infra. Knop v. Johnson (W.D. Mich. & 6 th Cir.) This class action challenges certain conditions at the State Prison of Southern Michigan, the Michigan Reformatory, the Marquette Branch Prison, and the Riverside Correctional and Psychiatric Facilities. Among other issues, the plaintiffs claimed that prisoners were denied meaningful access to the courts because many prisoners were functionally illiterate and the defendants provided no assistance to allow them to challenge their criminal convictions or their conditions of confinement., and the district court granted judgment in plaintiffs favor. The defendants appealed to the Sixth Circuit which upheld the finding of a constitutional violation and remanded to the district court to develop an appropriate remedy. In October 2001 the defendants announced that because of recent events they intended to cease obedience to orders in this case and Hadix v. Johnson, supra, which required them to open legal mail in the presence of the prisoner recipient and to refrain from reading such mail. The plaintiffs filed a motion for contempt. In February 2002 the magistrate judge issued an opinion recommending rejection of the defendants policy, but recommending against the issuance of an injunction. Both sides appealed to 7

the district judge, who granted most of the injunctive relief requested by plaintiffs. While defendants are prohibited from reading any legal mail, they can open such mail in a central location as long as additional steps to assure that the mail is not read are followed. Following agreement on new mail policies and a period of monitoring, the parties agreed to a stipulation dismissing the access to courts and legal mail provisions in September 2002. Overton v. Bazzetta (U.S. S. Ct.) In this case, the Supreme Court granted review in a case in which the Sixth Circuit had upheld a lower court s decision striking down various restrictions on noncontact prisoner visits, including a permanent ban on all visits for prisoners who had two prison disciplinary charges for substance abuse (a charge that includes possession of prescription medications after the prescription expires). The NPP filed a amicus brief in the Supreme Court supporting the decision in the Sixth Circuit. In June 2003 the Supreme Court reversed, although it strongly suggested that prisoners retain some right of intimate association that could be vindicated in individual lawsuits. On remand, the district court reinstated the lawsuit with regard to individual plaintiffs challenging lifetime bans on visitation. MISSISSIPPI Moore v. Fordice/Gates v. Cook (N.D. Miss. & 5 th Cir.) In 1999, all of the prisoners confined in Mississippi s segregated unit for HIVpositive prisoners at Parchman petitioned to have the NPP to serve as their counsel, replacing their court-appointed class counsel, and to enforce their rights to adequate medical care and humane conditions of confinement. The NPP asked the court to issue a preliminary injunction regarding the unit s failure to provide necessary medical care. Following an evidentiary hearing, the district court found that the medical care was grossly defective, and entered an injunction requiring the State to provide HIV care consistent with CDC guidelines, including triple-drug therapy. The district court nevertheless rejected the prisoners' request to make the NPP their class counsel, and shortly thereafter, at the request of court-appointed class counsel, it issued a gag order prohibiting the NPP from communicating with any Mississippi prisoner about medical care or any other conditions of confinement. In November 2000, the Fifth Circuit Court of Appeals reversed the trial court, lifted the gag order, and ordered the NPP substituted as counsel. In 2000-2001, while the gag order was in place, the NPP worked with the prisoners' families and with local and national advocates for people living with HIV to form a coalition to advocate for an end to Mississippi's policy of segregating all prisoners with HIV and excluding them from the educational and vocational programs offered to their HIV-negative peers. In response, the Commissioner of the Mississippi Department of Corrections formed a Task Force to review the DOC's HIV policies, and appointed NPP staff and allies as members of the Task Force along with DOC and public health officials. The Task Force issued a comprehensive report in March 2001, recommending program integration and universal HIV education throughout the prison 8

system. In June 2001, the Commissioner adopted these recommendations in full, and program integration commenced in September 2001. The NPP has continued to monitor closely the delivery of medical care, environmental hazards, staff abuses and security concerns in the HIV Unit, as well as persistent problems of staff retaliation against prisoners active in the litigation. In May 2002, correctional staff opened and read confidential lawyer-client correspondence from the NPP to class members concerning environmental hazards on the Unit, and shortly thereafter staff conducted a retaliatory cell shake-down of the lead class representative. The district court granted a temporary restraining order, and after an evidentiary hearing on June 25, entered a permanent injunction barring mail tampering and retaliatory cell searches. Groot v. Hudson (N.D. Miss.) In October 2001, a number of HIV-positive prisoners in Mississippi State Penitentiary at Parchman, activists in the Moore v. Fordice class action [see above], brought suit for damages and injunctive relief against several correctional officers, alleging a long-standing pattern of severe retaliation against prisoners who submit grievances regarding staff misconduct. Plaintiffs have been beaten, threatened with beatings, subjected to fabricated disciplinary charges, and confined to punitive segregation for many months in grossly inhumane conditions in retaliation for filing grievances exposing staff misconduct. Among the plaintiffs are two inmate clerks who were routinely coerced by correctional staff into creating bogus rule violation reports and forged witness statements to ensure severe punishment for prisoners targeted by correctional officers for retaliation. The case was tried in March 2003. Following the trial the court dismissed some of the claims, but reserved judgment on the physical assault claims. The plaintiffs will consider an appeal after the assault claims are resolved. Russell v. Johnson (N.D. Miss. & 5 th Cir.) In January 2001, a number of Mississippi s Death Row prisoners at Mississippi State Penitentiary in Parchman went on a hunger strike to protest brutally harsh conditions in Unit 32, which houses Mississippi's death-row prisoners and severely mentally ill prisoners. A majority of the death-sentenced prisoners spend many years on death row while they pursue their appeals, and many of those appeals eventually succeed: Of 183 death sentences imposed in Mississippi since 1976, the Mississippi Supreme Court has reversed the death penalty in 41 percent of the direct appeals it has ruled on. In fact, almost as many people have had their convictions reversed as have been executed. When the State refused to allow NPP to inspect Death Row, the NPP and other national and local counsel filed a class action lawsuit on behalf of the prisoners. In July 2002, the district court entered an order compelling the State to allow NPP to tour Death Row with four experts. The August tour revealed conditions so inhumane as to amount to torture, including lethal extremes of heat and humidity, pervasive filth, uncontrolled infestation of mosquitoes and other pests, nonfunctional plumbing, lack of 9

water, arbitrary and draconian discipline, grossly inadequate lack of opportunity to exercise, solitary confinement and extreme deprivation of social contact, and grossly deficient mental health and medical care. The trial took place in February 2003. In May 2003 the court issued a comprehensive decision finding the conditions unconstitutional and ordering specific steps that the defendants must undertake. The defendants filed their report on progress on improvements by July 2003. The defendants have filed an appeal from the decision, and the Fifth Circuit granted a stay pending its decision in the case and expedited the appeal. The briefing is completed and oral argument took place on November 5, 2003. MONTANA Langford v. Martz (D. Mont.) This case was filed following a serious disturbance at the Montana State Prison that resulted in seven deaths. The lawsuit challenges medical and mental health care, overcrowding, environmental and fire safety conditions, classification policy, and sex offender policies. The parties settled all issues except those issues related to treatment of protective custody prisoners. The protective custody issues were ultimately tried in a separate case filed by the Department of Justice. In September 2002 the health care experts conducted an inspection of the prison. The experts concluded that prisoners suffering from chronic illnesses were not receiving appropriate treatment, and were not being monitored at regular intervals by medical staff. The recommended that a physician be responsible for monitoring seriously chronically ill patients and that the defendants revise their medication procurement contract to assure that medications prescribed to prisoners are renewed promptly. The medical expert conducted a followup tour in July 2003 and on November 10, 2003, the parties negotiated an agreement extending the life of the settlement agreement provisions regarding medical care. NEVADA Auer v. Donat (9 th Cir.) A Nevada state prisoner alleges that he was assaulted by corrections officers. Before filing his lawsuit in federal court, he filed two grievances about the incident with the prison grievance system, and appealed both grievances through all available levels of review, as required by the Prison Litigation Reform Act (PLRA). After he filed suit in federal court, representing himself, the district court dismissed his lawsuit on the ground that he had not sought in his grievances every form of relief that he later sought in the lawsuit. Still acting without a lawyer, he appealed to the Ninth Circuit. In May 2003 the NPP sought leave to file an amicus brief and participate in oral argument, to argue that technical pleading rules of this kind should not be written into PLRA s grievance exhaustion requirement. On September 15, 2003, the Ninth Circuit adopted the NPP s argument and reversed the dismissal. The state has petitioned for rehearing by all the judges of the Ninth Circuit. NEW MEXICO Sandoval v. Lopez (D.N.M.) 10

The NPP is co-counsel in this case, which attempts to replicate our success in Jones El, the Wisconsin supermax litigation. (See below). Here, as in Jones El, the major issues are the devastating effects of supermax confinement on the mentally ill, and the harmful effects of such confinement even on previously mentally healthy prisoners. In May 2003 the parties reached a comprehensive settlement. Under the terms of the agreement, prisoners with serious mental illness are categorically excluded from the supermax units. The state has expanded the APA program for prisoners who, because of mental health problems, cannot withstand the rigors of supermax. The APA s mental health staffing has been enhanced, and continuity of care for prisoners leaving the program has been improved. The practice of video visiting has been abolished and increased educational services will be offered. Mental health staff will participate in classification and disciplinary decisions, and custody staff will receive training in mental health issues. OHIO Cutter v. Wilkinson (6 th Cir.). The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects the religious rights of prisoners. A three-judge panel of the Sixth Circuit held the Act unconstitutional as a violation of the Establishment Clause. The NPP joined a coalition of religious and civil rights groups in filing an amicus brief in support of the plaintiffs request that the decision be reconsidered by all the judges of the Sixth Circuit. Southern Ohio Correctional Facility Following an extensive investigation, in 2002 the NPP and local counsel accepted an invitation from the Ohio Department of Corrections to work with them, rather than file suit, to address deficiencies in mental health care at the facility. These issues include reducing reliance on medication as the primary treatment modality; addressing staff insensitivity to mentally ill patients; providing appropriate housing for mentally ill patients; reducing the number of suicide gestures; and implementing an appropriate quality assurance program. RHODE ISLAND Inmates of the Boys Training School v. Lindgren (D.R.I.) This class action involves conditions of confinement and program management at the central juvenile facility in Rhode Island. It was originally settled by entry of a Consent Decree in 1979. In 1997, because of continuing failures to obey the Consent Decree, the court reactivated the Special Master to work with the parties to resolve compliance issues. The NPP entered this case as plaintiffs class counsel in 1999. Following the NPP s entry into the case, in March 2000, the parties negotiated a comprehensive revision of the Consent Decree. The plaintiffs continue to monitor compliance. In 2002, with NPP s counsel active participation, Rhode Island agreed to construct a new juvenile facility and the state legislature appropriated sixty million dollars to fund it. A dispute between the Governor and the State Legislature over siting the forty million dollar facility has delayed construction, and the NPP is working to make certain that the dispute is resolved. 11

SOUTH DAKOTA Cody v. Hillard (D.S.D. & 8 th Cir.) This class action challenged medical and mental health care, physical plant and sanitation, shop safety, legal access, and overcrowding at the South Dakota State Penitentiary. Following a trial, the district court found for the plaintiffs on virtually all issues. After the decision, the parties agreed on a consent decree covering all issues but overcrowding. The court of appeals reversed the district court on that issue. On all other issues, the plaintiffs continued to monitor and filed motions for enforcement of the consent decree. In 1996, the defendants filed a motion to dismiss, which the district court granted in April 1997. In March 1998 the court of appeals unanimously reversed the dismissal After that decision, the parties agreed to a new settlement that provided additional relief to the plaintiffs and the Court approved the settlement in February 2000. In November 2000 the court awarded substantial attorneys fees to plaintiffs. The defendants appealed from that order and in September 2002 the Eighth Circuit affirmed the award of attorneys fees in a decision that interprets the PLRA s fees provisions in a helpful way. The plaintiffs have now completed monitoring of the settlement agreement. TEXAS Johnson v. Johnson (N.D. Tex. & 5 th Cir.) Texas was identified as the worst state in the nation for prisoner rape by Human Rights in 2001. On April 18, 2002, the NPP filed suit, seeking damages and injunctive relief on behalf of Roderick Keith Johnson, a young, gay African American who alleges that from September 2000 to April 2002, he was subjected to a system of gang-run sexual slavery. Gang members routinely bought and sold him as a chattel, raped and degraded him on a virtually daily basis, and threatened him with death if he resisted. He repeatedly pleaded with prison officials to house him in safekeeping or protective custody, but they refused to conduct any meaningful investigation of his complaints and denied his pleas for safekeeping. They made clear that they took sadistic pleasure in his victimization and repeatedly insisted that, because he is Black, Mr. Johnson should either be able to fight off his attackers or accept sexual victimization. They also repeatedly expressed contempt for non-aggressive gay men, following a practice to refuse to protect such inmates from sexual assault, at least until such inmates are savagely beaten or "gutted." The assaults escalated until the NPP intervened and brought pressure to bear to transfer Mr. Johnson to safekeeping in another prison. The complaint alleges that the defendants violated Mr. Johnson s Eighth Amendment right to be free from cruel and unusual punishment by deliberately failing to protect him, and that they denied him equal protection of the laws based on his race and sexual orientation. In January 2003 the court issued an order protecting witnesses after plaintiffs demonstrated evidence of witness intimidation. In April 2003 the court denied the defendants motion for summary judgment and the defendants have filed an appeal of that order to the Fifth Circuit. The defendants filed their opening brief in October 2003 and we filed our briefs in December 2003. 12

Essary v. Chaney (S.D. Tex.) The NPP filed its second lawsuit of 2002 challenging prisoner rape in Texas on behalf of Nathan Essary, a slightly-built 22-year-old with very little prison experience and a history of mental illness, who was a minimum custody prisoner when he was repeatedly sexually assaulted by correctional officer Michael Chaney. The plaintiff, a past victim of a prison gang-rape, was ordered to masturbate and perform oral sex on Officer Chaney on a number of occasions in October 2001. When he tried to refuse these demands for sex, Chaney warned Essary that he would make his life a living hell and would pay prison gangs to have him killed if he resisted. When Essary notified the prison warden that Chaney was sexually assaulting him, the warden failed to protect him and that night Officer Chaney raped Essary again. In May 2002, Officer Chaney was indicted for sexual assault on Essary, based on semen that he had collected following one of the attacks. The lawsuit seeks compensatory and punitive damages against Officer Chaney and the warden who failed to protect Essary after being notified of the assaults. The district court denied defendants motion arguing that the warden was not subject to damages because he had qualified immunity. Discovery closes in December 2003. VIRGIN ISLANDS Carty v. Turnbull (D.V.I.) This class action case culminated in a comprehensive settlement agreement requiring the Virgin Islands government to rectify severe overcrowding, to address squalid conditions, to remedy deficient medical and mental health care, and to institute inmate classification and fire safety measures to ensure the safety and security of prisoners. In 1997, the district court held defendants in contempt of court for their failure to comply with the consent decree. During 1998, the defendants sharply reduced the population at CJC. Through 2000, the court held periodic hearings, and entered several detailed remedial orders requiring improvements in virtually every aspect of operations and conditions at the facilities. In June 2001, the court again held the defendants in contempt for failing to comply with the decree and the court s remedial orders. The court found that the government had failed to install a reliable fire detection system, or institute fire safety and evacuation procedures, that the jail remained plagued with environmental hazards due to inadequate maintenance staff, that severely mentally ill prisoners received inadequate treatment at the jail, that prisoners did not have access to working telephones to contact their attorneys or families, and that prisoners were denied basic hygiene supplies such as toilet paper and shampoo. In September 2001, the court ordered the defendants to create a remedial fund to pay for rectifying conditions within the system. In November 2002, the judge held another contempt hearing. During that hearing, the court received expert testimony that the jail was still not equipped with a complete fire detection and alarm system, that critical security posts often were unmanned, and that jail personnel were unable to open key exit doors, thus endangering the lives of prisoners and staff in the event of a fire. A medical expert testified that severely mentally ill prisoners continued to receive inadequate mental 13

health treatment, and that prisoners suffering from chronic illnesses were not appropriately treated for their conditions. Following the hearing, the judge entered an order for interim relief requiring the defendants to hire an independent medical expect to assist the defendants in augmenting existing health care policies and procedures, and implementing a health care quality assurance program. In May 2003 the judge again found the defendants in contempt. The contempt proceedings resumed in December 2003. At those hearings, the judge commented that prison officials were killing our clients by denying mental health care to the seriously mentally ill. VIRGINIA Madison v. Riter (4 th Cir.) A Virginia state prisoner is a member of the Church of God and Saints of Christ, commonly known as the Hebrew Israelites. His religion requires that he consume a kosher diet, but prison officials refused to provide it. Representing himself, he filed suit in federal court, arguing that the officials refusal violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The district held part of RLUIPA unconstitutional as a violation of the Establishment Clause. The plaintiff, now represented by counsel, appealed to the Fourth Circuit. In June 2003 the NPP and the ACLU of Virginia joined a broad coalition of religious and civil rights organizations in filing an amicus brief in the court of appeals supporting RLUIPA s constitutionality. On December 8, 2003, the Fourth Circuit upheld the constitutionality of RLUIPA. WASHINGTON Hallett v. Morgan (W.D. Wash. & 9th Cir.) This class action, challenging inadequate medical, mental health, and dental care at the Washington Corrections Center for Women (WCCW), was filed in 1993. The case was settled in 1995 with entry of a consent decree that was to last for four years, but could be extended if the state failed to comply with its terms. In 1999 the plaintiffs moved for an extension of the decree and for contempt, citing serious ongoing deficiencies in health care. The state filed a motion to terminate the decree under PLRA. After a two-week evidentiary hearing in March and April 1999, the district court denied the plaintiffs motions and granted the state s termination motion. Plaintiffs appealed to the Ninth Circuit and asked that court to reinstate the decree pending appeal, to prevent irreparable harm to the women at WCCW. The Ninth Circuit granted that request in March 2000. In August 2002, the Ninth Circuit affirmed in part and reversed in part, and sent the case back to the district court to determine whether the state was in contempt of the decree. Because serious and life-threatening deficiencies in medical care continue to exist at the prison, on December 19, 2002 the plaintiffs filed a motion for contempt, and in August 2003 the district court scheduled an evidentiary hearing on plaintiffs motion for April 2004. On November 13, 2003, the defendants agreed to pay $500,000 to settle the contempt motion. Most of the money will go to a fund to benefit the prisoner class. 14

Orndorff v. Jefferson County (W.D. Wash.) This lawsuit challenges conditions at the Jefferson County Jail in Port Hadlock, Washington. The Jail has no salaried health care staff, and prisoners are denied necessary medical, mental health, and dental care. As a result of severe overcrowding, many prisoners are forced to sleep on the floor. Plumbing and climate control are inadequate, and prisoners are denied basic hygiene supplies, such as toilet paper and sanitary napkins. Overcrowding and squalid conditions lead to heightened tension and fighting among prisoners, which security staff are unable or unwilling to prevent. On September 3, 2002, the district court certified the plaintiff class. On February 14, 2003 the parties reached a settlement that calls for a comprehensive overhaul of jail operations. In October 2003 the court gave preliminary approval to the settlement and ordered that notice be given to the class. WISCONSIN Jones El v. Berge (W.D. Wis. & 7 th Cir.). The NPP is co-counsel with the ACLU of Wisconsin and a coalition of Wisconsin lawyers in this challenge to conditions at the Supermax Correctional Institution (SMCI) in Boscobel, Wisconsin. Opened in 1999 in a remote part of the state, SMCI is designed to subject prisoners to extreme social isolation and sensory deprivation. Conditions include 24 hour illumination and bed checks in which prisoners are awakened hourly throughout the night. Prisoners are locked in their windowless cells for all but four hours a week. They receive no outdoor exercise. All visits, except with attorneys, are conducted via video screen. Some prisoners are allowed only one 6- minute telephone call per month. These conditions are particularly devastating to mentally ill prisoners, who suffer exacerbation of their illness and often attempt selfharm or suicide. In October 2001, the court issued a preliminary injunction ordering the state to remove a number of identified mentally ill prisoners from SMCI, and to evaluate other SMCI prisoners to determine if they are mentally ill. This resulted in over 30 mentally ill prisoners being removed from SMCI. In March 2002, the remaining issues in the case were settled with the entry of a consent decree. A court-appointed monitor is now overseeing implementation of the decree s provisions. In October 2003 the plaintiffs filed a motion to enforce the consent decree. On November 26, 2003, the court issued an order enforcing the consent decree and requiring the state to air-condition the cells prior to the summer of 2004. The state is appealing this order. 15