November, 2000 web edition

U.S. Supreme Court to decide whether prisoners have an independent constitutional right under the First Amendment to help fellow prisoners with legal assistance even if the state provides other forms of legal assistance to inmates.

            A federal appeals court ruled that the action of prison officials in taking a disciplinary action against a prisoner for sending a fellow prisoner a letter with legal advice was an "exaggerated" response to otherwise legitimate security concerns and violated the disciplined prisoner's First Amendment rights. The disciplined prisoner was acting as a "law clerk" for the prisoner to whom he sent the letter.

            The U.S. Supreme Court has now granted review of the case to address the question of whether the First Amendment grants a "state prison inmate an independent and free-standing right to assist another state prison inmate with pending court case even if state supplies other forms of legal assistance to prison inmate?"

            The disciplined prisoner had provided legal assistance to the inmate on several prior occasions. In this case, despite the fact that the inmate had received appointed legal counsel to defend himself on pending criminal charges that he had assaulted a guard, the prisoner wrote a letter to him advising him not to accept a plea bargain in the case.

            He contended that there were a number of prisoner witnesses who would be willing to testify that the guard the prisoner was accused of assaulting was "overzealous" and had a "personal agenda" to harass and punish the charged prisoner.

            A report of the Court's decision will appear in a future issue of this publication.

Murphy v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999), full text: <www.ce9.uscourts.gov/opinions>, cert. granted, Shaw v. Murphy, No. 99-1613, 2000 U.S. LEXIS 4856.

Even if prisoners' lawsuit was the "catalyst" causing New Jersey to alter the application of a statute denying prisoners access to pornographic materials, they were not entitled to an award of attorneys' fees once an appeals court ruled that the statute did not violate their rights; court finds an attorneys' fee award on a "catalyst" theory would violate the Prison Litigation Reform Act.

            Two prisoners in a New Jersey facility for sexual offenders with "repetitive and compulsive" behavior filed a federal lawsuit claiming that a New Jersey statute violated their constitutional rights under the First Amendment by restricting their access to pornographic materials.

            The trial court initially agreed with the prisoners, granting an injunction against the statute and finding it overbroad and vague, susceptible of being applied to materials describing or depicting sexual activities from "kissing to intercourse." a federal appeals court later reversed, finding no merit in the claim. Waterman v. Farmer, #98-6261, 183 F.3d 208 (3d Cir. 1999), full text: <http://pacer.ca3.uscourts.gov/>. In the interim, the state of New Jersey clarified the scope of application of the statute by publishing regulations that narrowed the materials covered to more specifically defined ones.

            The plaintiff prisoners argued that they were still entitled to an award of attorneys' fees as prevailing parties under a "catalyst" theory, in that their litigation had caused the state to alter the application of the statute in the direction that the plaintiffs wanted.

            Citing the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e (d)(a), a federal trial court has rejected this application for attorneys' fees, finding an award to prisoners under the "catalyst" theory barred by the statute. The provision cited provides that prisoners are not to be awarded attorneys' fees unless the fee "was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title." Since the appeals court decision was that the New Jersey statute did not violate any of the prisoners' rights, they could not be awarded attorneys' fees. Waterman v. Farmer, 84 F. Supp. 2d 579 (D.N.J. 2000). [Cross-reference: First Amendment; Prison Litigation Reform Act: Attorneys' Fees].

One-year statute of limitations for bringing a federal civil rights lawsuit in Louisiana was extended during the time the prisoner was pursuing his available administrative remedies, as he was legally required to do under the Prison Litigation Reform Act; plaintiff stated a claim for deliberate indifference to treatment of his broken jaw.

            A Louisiana prisoner sued three prison medical staff members for violations of his civil rights, claiming deliberate indifference to his serious medical needs in violation of the Eighth Amendment. He exhausted the available administrative grievance procedures prior to filing the lawsuit. Because he did not file his federal lawsuit until approximately 17 months after the events at issue in the case, the trial court concluded that the claims were barred by a one-year statute of limitations applicable to federal civil rights lawsuits in Louisiana, and therefore dismissed the case.

            Reversing, a federal appeals court held that the time that the prisoner spent exhausting the available administrative procedures "tolled" (extended) the one-year time limit. The court noted that the Prison Litigation Reform Act, PLRA, 42 U.S.C. Sec. 1997e, in fact now requires the prisoner to first exhaust administrative remedies. During the nine-month time period that he was doing so, he would not have been able to file his lawsuit without having it dismissed. Accordingly, he had filed it within the one-year time period, commencing from the conclusion of the administrative procedures.

            The court also found that the prisoner stated a claim for deliberate indifference to treatment of his broken jaw. Harris v. Hegmann, No. 98-30617, 198 F.3d 153 (5th Cir. 1999).

Text: <www.law.utexas.edu/us5th/us5th.html>. [Cross-references: Medical Care; Prison Litigation Reform Act: Exhaustion of Remedies].

Prisoner's alleged "stage fright," making it difficult for him to produce a urine sample for drug testing while being observed, was not a disability for purposes of the Americans With Disabilities Act (ADA); court also finds that discipline of prisoner for various misconduct charges was not retaliatory.

            A prisoner in a New York state correctional facility was ordered to give a urine sample for drug testing when he arrived there following a transfer from another prison. He complained that he had just given a sample four days before, and had a "handicap" in that he experiences "stage fright," which makes it difficult for him to give a urine sample with someone watching. At the prior urine testing, he claimed he had been laughed at, harassed and threatened with a charge of misbehavior for not being able to perform.

            Because of this "handicap," he asked to be allowed to give a blood sample instead of a urine sample. This request was denied and he ultimately was able to give a small urine sample in the last minute of the 3 hours allowed for the test. He was also subsequently written up for misbehavior, found guilty, and given 120 days keeplock, 120 days loss of commissary and other privileges, and 120 days loss of good time. The charges concerned the prisoner allegedly falsifying the loss of an I.D. card and then abusing a correctional officer with obscene language.

            He filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 and the Americans With Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et. seq., claiming that he had been subjected to disability discrimination and a "conspiracy" to retaliate against him for exercising his rights and for filing various grievances.

            A federal trial court rejected these claims. "Plaintiff's alleged difficulty in producing a urine sample is not a disability within the meaning" of the ADA, the court ruled. Further, no section of the ADA requires a prison to "refrain from urinalysis or to provide some other kind of testing for drugs," such as the blood test the plaintiff requested.

            The court also found no real evidence that the disciplinary charges filed against the prisoner were retaliatory in nature. Oyague v. State of New York, #98 Civ. 6721 (TPG), 2000 U.S. Dist. LEXIS 12426 (S.D.N.Y.). [Cross-references: Drug Testing; Prisoner Discipline].

Black male prison guard at all-female Michigan prison awarded $1.015 million on claim that he was illegally fired for retaliatory reasons after he requested a transfer to an all- male facility because of stress he was suffering from "taunts" by female prisoners.

            A black male prison guard at a prison in Michigan had already worked there for nine years when it switched to an all-female facility. He claimed that the women inmates "taunted" him, causing emotional distress. His request for a transfer to a male facility was denied, and he went on medical leave which he claimed was required for the stress. He was subsequently fired, approximately three weeks after filing a discrimination complaint with the state civil rights department, asserting that he had been mistreated by prison officials, based on their alleged lack of support and making of threats of retaliation.

            He filed a lawsuit in state court, asserting a claim for retaliatory discharge under Michigan's civil rights act. A jury awarded him a total of $1.015 million, including $428,059 for economic damages and $586,959 for emotional distress. The award reportedly could amount to almost $1.5 million with interest and attorneys' fees added. Edwards v. Michigan Dept. of Corr., Mich. Cir. Ct., No. 96-626808-CZ, verdict Sept. 6, 2000, reported in 38 Govt. Emp. Rel. Rptr. Number 1879, p. 1076 (Sept. 26, 2000).

Illinois jury awards $9.6 million in damages to estate of baby which died after her mother, a detainee at a county jail, went into labor at the detention facility; lawsuit claimed that jail and hospital provided inadequate medical care, believing prisoner's pains were related to drug withdrawal rather than the pregnancy.

            An Illinois jury awarded a total of $9.6 million in damages to the estate of a former county jail detainee's baby who died when the prisoner went into labor during her confinement. The prisoner had been in custody after being arrested for possession of heroin, a charge that was later dismissed.

            The prisoner was in the third trimester of her pregnancy and complained of pains in her abdomen and severe cramps on the evening of her arrest. She was given Tylenol by jail personnel who believed that the pain was related to drug withdrawal. She was transferred to a hospital the next day when the pain did not cease. The lawsuit claimed that doctors at the hospital did not conduct any gynecological examination because they also believed the pains were related to drug withdrawal rather than to the pregnancy.

            The prisoner was transferred back to the jail later the same day, and went into labor several minutes after her return. The new born baby allegedly fell two feet during the delivery and its head hit a concrete floor. The child died when she was three days old.

            The lawsuit asserted that the child's death might have been prevented if it took place in a hospital or another facility with the equipment to remove fecal matter from the infant's lungs. It claimed that both the jail and the hospital provided inadequate care to the pregnant prisoner. The jury's award included $7.2 million for the infant's death and $2.4 million for her pain and suffering. An appeal by the county is expected if the trial court turns down a motion for a new trial. LaSalle Bank, Administrator, Estate of Hughes, v. County of Cook, No. 97L-12473, Cir. Ct. Cook County, IL., Oct. 19, 2000, reported in Chicago Daily Law Bulletin, p. 3 (Oct. 20, 2000).

Maryland high court rules that prisoner did not have to exhaust available administrative remedies before filing a medical malpractice lawsuit against a prison's private contractor medical services provider; state statute requiring exhaustion of remedies only was intended to apply to claims against governmental entities.

            A prisoner in a Maryland state correctional facility filed a lawsuit against a private health care provider which delivered medical services to inmates there under a contract with state correctional officials. The lawsuit asserted claims for medical negligence and breach of contract, alleging that the defendants did not provide adequate treatment for the plaintiff's injured right knee.

            The highest court in Maryland, in a case of first impression, has ruled that the prisoner was not required, under the state Prisoner Litigation Act (PLA), Maryland Code, Courts and Judicial Proceedings, Sec. 5-1001 et seq., to exhaust available administrative remedies before pursuing a civil lawsuit for damages. The court ruled that the state legislature, while it was free to do so, did not "craft" the statute in question to require that prisoners exhaust available administrative remedies in their facility before pursuing malpractice lawsuits against private medical service providers. The purpose of the legislation in question was to discourage frivolous claims from burdening governmental entities by requiring prisoners to first exhaust administrative remedies on claims against government itself. It therefore overturned a dismissal of the lawsuit by the lower court. Adamson v. Correctional Medical Services, Inc., No 78, Sep. Term, 1999, 753 A.2d 501 (Md. 2000).

Text: <www.courts.state.md.us/T40/>. [Cross-reference: Prison Litigation Reform Act: Similar State Laws].

Philadelphia federal judge approves settlement in city prison overcrowding case pending for 18 years; further court supervision of city prisons dropped; Prison Litigation Reform Act provisions allowing defendants to move for modification or termination of existing consent decrees, and requiring a finding of current unconstitutional conditions for any prospective relief are cited in judge's order.

            A federal trial judge in Philadelphia has approved a settlement of a city prison overcrowding case that has been pending for 18 years, since 1982. The settlement of the class action lawsuit includes provisions to send any future disputes to arbitration for a minimum period of the next two years.

            In approving the settlement, the judge explicitly stated that she was only ending the case in this manner because the city now would be able, under provisions of the Prison Litigation Reform Act of 1996 (PLRA) to move for an immediate termination of 1986 and 1991 consent decrees, with the court required to issue its ruling within a maximum of 90 days or else stay the decrees. A variety of actions, including new construction, undertaken by the city since the beginning of the litigation, had remedied many problems alleged in the original complaint.

            The judge stated that, under the PLRA, Congress has "decreed that a federal court should not enforce legitimate consent decrees entered voluntarily by states and municipalities unless it found unconstitutional conditions."  She further stated that there "is no doubt" that the conditions in the city prison system were "unconstitutional" in 1982, but that these conditions "have improved in some respects under court supervision," with the result that "the improvements over the ensuing years make the results of a present challenge unclear."

            Other provisions in the settlement involve monitoring of conditions in the city's facilities by consultants, and city funding of some additional maintenance of correctional facilities. "Eighteen years is generally the age at which a child is declared emancipated," the judge commented, so that, subject to retention of jurisdiction of some funds for plumbing improvements in the facilities, "the court approves the settlement of the parties" and "declares the City emancipated from federal court supervision." Harris v. City of Philadelphia, #82- 1847, 2000 U.S. Dist. LEXIS 12579 (E.D. Pa.).

Text: <www.paed.uscourts.gov/usci1982.html>. [Cross-reference: Prison Litigation Reform Act: Consent Decrees].

Prisoner who claimed that correctional officers used excessive force against him was required to exhaust available administrative remedies before filing a federal civil rights lawsuit for damages, even if money damages could not be awarded in the administrative proceeding.

            A Pennsylvania prisoner's federal civil rights lawsuit claimed that prison guards had used excessive force against him. The trial court dismissed the lawsuit for failure to exhaust available administrative remedies as required by the Prison Litigation Reform Act (PLRA).

            Upholding this result, a federal appeals court ruled that the use of excessive force by correctional officers, even if alleged to have been intentional, was a "prison condition" for purposes of the PLRA, so that the exhaustion of remedies section applies. The court noted that "civil action with respect to prison conditions" was broadly defined in the PLRA to include "the effects of actions by government officials on the lives of persons confined in prison," which would include the use of excessive force.

            The appeals court further rejected the argument that the prisoner was not required to exhaust available administrative remedies because the administrative procedures available to him could not provide him with a money damages remedy such as the one he sought in the civil rights lawsuit. The court found that Congress in general intended the PLRA to reduce the intervention of the federal courts into the nation's prison system, and that this intent was furthered by requiring exhaustion of available administrative procedures even in cases where prisoners sought money damages but could not obtain it through those procedures.

            The appeals court rejected the argument that Congress only intended for the exhaustion of administrative procedures provision to apply to frivolous prisoner lawsuits. Booth v. Churner, Co., #97-7487 & 97-7488, 206 F.3d 289 (3rd Cir. 2000).

Text: <http://pacer.ca3.uscourts.gov/>. [Cross-reference: Prisoner Assault: By Officers].

            EDITOR'S NOTE: The lawsuit above was filed under 42 U.S.C. Sec. 1983 against state correctional employees. The Third Circuit Court of Appeals had previously reached the same result in a case involving a Bivens (direct lawsuit under a constitutional provision, rather than a statute, such as 42 U.S.C. Sec. 1983, applicable only to those acting under state law) federal civil rights lawsuit against federal correctional officials. Nyhuis v. Reno, #98-3543, 204 F.3d 65 (3d Cir. 2000), full text: <http://pacer.ca3.uscourts.gov/>. The court found no reason for a distinction when it came to the application of the rule that administrative remedies be exhausted even when money damages cannot be obtained through them.

Wisconsin appeals court upholds state "three strikes" statute requiring that a prisoner, even if indigent, prepay the full filing fee before proceeding with a state civil rights lawsuit against prison officials once it was shown that he had previously had three lawsuits dismissed as frivolous or otherwise improper.

            A Wisconsin prisoner was barred from proceeding with a state civil rights lawsuit appeal against prison officials without prepayment of a filing fee, under Wis. Stat. Sec. 801.02(7)(d). This state statute prohibits the prisoner from proceeding as a pauper, without the prepayment of a filing fee, when he had had three or more previous lawsuits dismissed for being frivolous, brought for an improper purpose, seeking damages from an immune defendant, or failure to state a claim.

            Upholding this result, an intermediate Wisconsin appeals court rejected arguments that this statute suspended the prisoner's right to habeas corpus, unconstitutionally barred all indigent prisoners' right of access to the courts, violated equal protection rights of indigent prisoners, or were an unconstitutional "bill of attainder" legislatively determining guilt and inflicting punishment upon an identifiable individual without trial. Khan, State Ex Rel. v. Sullivan, No. 99-2102, 613 N.W.2d 203 (Wis. App. 2000).

Text: <www.wisbar.org/legalres/>.

UPDATE: $12 million settlement in lawsuits over 1971 Attica prison riot, including $8 million in damages to inmates and $4 million in attorneys' fees.

            As previously reported in Jail & Prisoner Law Bulletin No. 273, p. 137 (September 1999), a federal appeals court last year overturned a $4 million award to a New York prisoner, as well as a $75,000 award to another, both stemming from the aftermath of the Attica prison riot, and criticized the trial court and state of New York for the fact that the lawsuit, filed on behalf of 1,281 inmates, is still pending after twenty-five years. The appeals court also suggested that the case might have better been approached as individual lawsuits by individual prisoners, rather than as a class action lawsuit, while leaving it to the "sound discretion" of the trial court as to how to proceed with the case at this point. Blyden v. Mancusi, #97-2912, 186 F.3d 252 (2nd Cir. 1999).

Text: <www.tourolaw.edu/2ndCircuit>.

            The case involved a federal civil rights lawsuit brought on behalf of 1,281 inmates on claims arising from the 1971 prison riot. Prisoners seized control of portions of the prison, and held corrections officers as hostages. After negotiations failed, state police were ordered to retake the prison by force. During the retaking, ten hostages and twenty-nine prisoners died. In 1992, the jury in the case found a defendant former deputy superintendent liable on two claims of having allowed reprisals against inmates after the retaking of the prison. The jury found that the inmates had proven that they suffered cruel and unusual punishment and reprisals and that the state had failed to provide adequate medical care.

            The state of New York and lawyers representing the plaintiff prisoners recently reached a settlement agreement for $12 million, which includes $8 million in damages to be divided between 502 of the plaintiffs and $4 million in attorneys' fees. The settlement does not include any admission of wrongdoing by the state. Plaintiff prisoners will receive different amounts depending on the severity of the injures: $6,500, $10,000, $31,000 and $125,000 for the prisoners, and $25,000 for the relatives of the inmates who died during the riot and its aftermath. About half of the 502 claims approved reportedly fell into the $6,500 category and 15 plaintiff prisoners were awarded the $125,000 amount. Blyden v. Mancusi, W.D.N.Y., reported in The New York Times, p. 1, National Edition (August 29, 2000).

Correctional officer's inadvertent housing of prisoner in a dormitory with another inmate who he had informed on was not deliberate indifference, but at most negligence; officer merely failed to notice "remarks" section of prisoner's record, stating that the two prisoners should not be housed together; further proceedings to follow on state law negligence claims in which jury initially awarded $1.55 million in damages.

            While incarcerated in a New York county jail, a prisoner was seriously beaten by a fellow inmate. The two prisoners were housed together even though their records stored in the jail's computer system indicated that the two should not be in contact. The beaten prisoner had cooperated with the government in prosecuting the second prisoner by acting as a confidential informant in his case, so it was feared that there would be some retaliation.

            The injured prisoner filed a lawsuit asserting both negligence under state law and deliberate indifference to his safety amounting to a violation of the Eighth Amendment under 42 U.S.C. Sec. 1983. The trial court dismissed the federal civil rights claim, but a jury granted damages on the state law negligence claim.

            The jury award initially included $300,000 in past pain and suffering, $1.25 million in future pain and suffering, and $60,000 to the prisoner's wife on her loss-of-services claim. The plaintiffs later agreed to a reduction in the award for future pain and suffering to $500,000 and a reduction in the award to the prisoner's wife to $20,000. At trial, the correctional officer who had been responsible for assigning the prisoners to the same dormitory testified that he failed to notice a "remarks" section in the prisoner's history forms which indicated that they were not to be housed together.

            A federal appeals court upheld the dismissal of the federal civil rights claim, finding no evidence that the officer or anyone acting on behalf of the county, acted with "deliberate indifference" to the plaintiff's safety. Rather, there was simply an oversight, which could be viewed as negligence, which no reasonable jury could have regarded as deliberate indifference.

            The federal appeals court declined to rule on another issue in the case, whether the trial court should have instructed the jury to apportion the damages suffered by the prisoner between the county and the other prisoner who attacked him. It ruled that this was a question of state law which it certified to the New York Court of Appeals for an answer. Rangolan v. County of Nassau, No. 99-9343 & 99-9397, 217 F.3d 77 (2nd Cir. 2000).

Full Text: <www.tourolaw.edu/2ndCircuit>.

Prison official with no personal involvement could not be held liable for assault on prisoner who was in general population despite prior attack on him; cell unit manager, however, to whom prisoner allegedly voiced fears of further attack, was not entitled to qualified immunity from liability.

            A Pennsylvania prisoner had been stabbed six times by several inmates in a hallway corridor in a prison, and subsequently transferred to another facility and then paroled. When he was later arrested for a parole violation, he was again housed at the same facility without incident and transferred out again.

            When he was later transferred back to the same facility at which he had previously been stabbed, he allegedly told the unit manager in his cell block that he was concerned about some of the same inmates attacking him again, and he was assured that he would be double-locked in his cell. Following a parole board hearing he attended, he discovered that his cell was no longer double-locked, after which he repeated his plea that either he be transferred out or that his cell be double-locked, or else that he be placed in administrative custody. These requests were allegedly denied and he was later stabbed in the prison law library by three unknown inmates.

            He sued a variety of correctional officials for failure to protect him against this latest assault. A federal trial court ruled that a prison deputy superintendent could not be held liable, since there was no evidence showing that he participated in any way in anything that resulted in the inmate's placement back in the general prison population, or that he knew of a substantial risk of serious harm to the prisoner but acted with deliberate indifference to it.

            The court rejected, however, a motion by the cell block unit manager for summary judgment on the basis of qualified immunity, finding that there was sufficient evidence to provide a genuine issue of fact as to whether he was deliberately indifferent to the plaintiff prisoner's safety. Pearson v. Vaughn, 102 F. Supp. 2d 282 (E.D. Pa. 2000).

Washington state jury awards $22.4 million to family of female motorist killed in collision with a stolen car driven at 90 m.p.h. through stoplights by a prisoner on supervised release for two felonies; lawsuit claimed that correctional officials inadequately supervised prisoner.

            A 24-year-old Washington state prisoner on supervised release for two felonies ran a number of stoplights in a stolen car at 90 miles per hour before it crashed into a female motorist's pick-up truck, killing her. He was subsequently convicted of second-degree murder for the death. The estate of the deceased motorist sued state correctional officials, arguing that they inadequately supervised the prisoner.

            The prisoner was already on supervised release for a third-degree assault conviction for beating his girlfriend when he was returned to jail for a subsequent conviction for possession of stolen property. Despite allegedly having failed to comply with court-ordered counseling and having reported only "sporadically" to his community corrections officer during the first supervised release, he was once again given supervised release after several months of confinement on the stolen property conviction.

            The lawsuit claimed that state correctional officials had not followed their own departmental directives and had allowed the prisoner to "virtually ignore" the conditions imposed by the court for 23 months. It further claimed that the prisoner had allegedly engaged in other violations during the supervision and was having problems with his "mental stability," and that correctional officers failed to monitor his mental state.

            A jury awarded $22.4 million in damages to the deceased woman's family. State correctional officials denied the claims in the lawsuit and were expected to appeal the award. Joyce v. State of Washington, No. 99-2-10179-6 (Sept. 1, 2000, Super. Ct., Pierce Co. Wash.) reported in The National Law Journal, p. A18 (October 16, 2000).

New federal legislation reimposes a tough test for justifying prison rules that impose substantial burdens on prisoner religious freedom rights; prison officials must now demonstrate a compelling governmental interest in the policy or regulation and also show that the "least restrictive" means available to further that interest were utilized.

            By unanimous vote, the Congress passed and the President signed into law, the "Religious Land Use and Institutionalized Persons Act," Public Law 106-274 (Sep. 22, 2000). It reinstates the legal test that previously existed under the Religious Freedom Restoration Act (RFRA) (1993) that the U.S. Supreme Court invalidated in City of Boerne v. Flores, #95- 2074, 521 U.S. 507 (1997), full text: <www.findlaw.com/casecode/supreme.html>. In that case, the Court held that RFRA was an unconstitutional exercise of Congress's powers, exceeding the powers that Congress has under the 14th Amendment, at least insofar as that statute applied to the states.

            The new Act explicitly relies on the Commerce Clause and the Spending Clause (the ability to put strings on programs receiving federal financial assistance). The focus of the second part of the bill is correctional facilities. Some of the decisions under the invalidated 1993 legislation are:

            * Jewish prisoners are entitled to a kosher diet. Friedman v. South, 92 F.3d 989 (9th Cir. 1996) and Ashelman v. Wawrzaszek, 111 F.3d 674 (9th Cir. 1997).

            * Rastafarians have the right to possess and use marijuana. U.S. v. Bauer, 84 F.3d 1549, 1996 U.S. App. LEXIS 11460 (9th Cir. 1996).

            * Jehovah's Witnesses and Muslim prisoners must be allowed to meet on the same terms as other prisoners, including meetings without an outside religious leader. Hyde v. Texas Dept. of Criminal Justice, 948 F.Supp. 625 (S.D. Tex. 1996).

            * A Muslim prisoner had a clearly established right not to handle pork in prison kitchen; kitchen supervisors were not entitled to qualified immunity for disciplining him when he refused. Hayes v. Long, 72 F.3d 70 (8th Cir. 1995).

            * A refusal to allow a Jewish or Muslim inmate to grow a beard violates the RFRA. Luckette v. Lewis, 883 F.Supp. 471 (D. Ariz. 1995); Lewis v. Scott, 910 F.Supp. 282 (E.D. Tex. 1995).

            * Fundamentalist Christian inmates have the right to receive publications that are "deeply offensive" to Catholics. Weir v. Nix, 890 F.Supp. 769 (S.D.Iowa 1995).

            * The denial of inmate's request to possess candles and incense and to perform Satanic rituals was a violation of his First Amendment right to religious freedom. Howard v. U.S., 864 F.Supp. 1019 (D. Colo. 1994).

            Under Sec. 3 of the new statute, "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--"

            "(1) is in furtherance of a compelling governmental interest; and

            "(2) is the least restrictive means of furthering that compelling governmental interest."

            Further, under Sec 4(b) of the statute "if a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause [...], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion."

            The enactment of this new federal law, to which various challenges may be anticipated, will result in reopening a wide variety of issues concerning prisoners' religious freedom rights. Following the invalidation of the RFRA, prison officials who wanted to justify a policy or regulation that imposed a burden on prisoner religious freedom rights only had to show a rational relationship to a legitimate penological interest, such as security, in order to prevail.

            The statute authorizes the award of attorneys' fees for its violation. It also states that it is not intended, in any way, to alter the application of the Prison Litigation Reform Act.

Prison Litigation Reform Act barred prisoners from attempting to recover damages for mental or emotional injury alleged caused by policies they said imposed stress on Muslim prisoners, in the absence of a showing of physical injury.

            A number of prisoners confined at an Indiana correctional facility filed a lawsuit claiming that correctional officials violated their constitutional rights by establishing various policies that caused much "mental and emotional stress among the adherents of the Sunni Muslim community" at the prison.

            The trial court noted that the Prison Litigation Reform Act, 42 U.S.C. Sec. 1997e(e) prohibits recovery by prisoners for mental or emotional injury suffered while in custody without a prior showing of physical injury, and therefore held that no damage claim for mental and emotional distress could be pursued. At the same time, the prisoners could pursue other damage claims for alleged violations of their First and Fourteenth Amendment rights, as well as appropriate injunctive relief.

            The court also found that the Eleventh Amendment barred claims for injunctive relief based on provisions of the Indiana state Constitution. Craig v. Cohn, 80 F. Supp. 2d 944 (N.D. Ind. 2000). [Cross-reference: Prison Litigation Reform Act: Mental Injury].

Adamson v. Correctional Medical Services, Inc., No 78, Sep. Term, 1999,
                753 A.2d 501 (Md. 2000).[167]
Blyden v. Mancusi, W.D.N.Y., reported in The New York Times,
                p. 1, National Edition (August 29, 2000).[170]
Booth v. Churner, Co., #97-7487 & 97-7488, 206 F.3d 289 (3rd Cir. 2000).[168-169]
Craig v. Cohn, 80 F. Supp. 2d 944 (N.D. Ind. 2000).[174-175]
Edwards v. Michigan Dept. of Corr., Mich. Cir. Ct.,
                No. 96-626808-CZ, verdict Sept. 6, 2000,
                reported in 38 Govt. Emp. Rel. Rptr. Number 1879, p. 1076 (Sept. 26, 2000).[166]
Harris v. City of Philadelphia, #82-1847, 2000 U.S. Dist. LEXIS 12579 (E.D. Pa.).[167-168]
Harris v. Hegmann, No. 98-30617, 198 F.3d 153 (5th Cir. 1999).[164-165]
Joyce v. State of Washington, No. 99-2-10179-6 (Sept. 1, 2000, Super. Ct., Pierce Co. Wash.)
                reported in The National Law Journal, p. A18 (October 16, 2000).[172-173]
Khan, State Ex Rel. v. Sullivan, No. 99-2102, 613 N.W.2d 203 (Wis. App. 2000).[169]
LaSalle Bank, Administrator, Estate of Hughes, v. County of Cook,
                No. 97L-12473, Cir. Ct. Cook County, IL., Oct. 19, 2000,
                reported in Chicago Daily Law Bulletin, p. 3 (Oct. 20, 2000).[166-167]
Murphy v. Shaw, No. 97-35989, 195 F.3d 1121 (9th Cir. 1999),
                cert. granted, Shaw v. Murphy, No. 99-1613, 2000 U.S. LEXIS 4856.[163]
Nyhuis v. Reno, #98-3543, 204 F.3d 65 (3d Cir. 2000).[169]
Oyague v. State of New York, #98 Civ. 6721 (TPG), 2000 U.S. Dist. LEXIS 12426 (S.D.N.Y.).[165]
Pearson v. Vaughn, 102 F. Supp. 2d 282 (E.D. Pa. 2000).[171-172]
Rangolan v. County of Nassau, No. 99-9343 & 99-9397, 217 F.3d 77 (2nd Cir. 2000).[170-171]
Waterman v. Farmer, #98-6261, 183 F.3d 208 (3d Cir. 1999).[163-164]
Waterman v. Farmer, 84 F. Supp. 2d 579 (D.N.J. 2000).[163-164]