319 F.Supp.2d 162 (2004) | Cited 13 times | D. Massachusetts | May 27, 2004



If incarceration rates remain unchanged, 6.6% of U.S. residents born in 2001 will go to prison at some time during their lifetime.1

This memorandum explores the consequences of this statistic, whichstark as it is, does not even account for incarceration in jails orgrowing incarceration rates. The particular action here involved afederal prisoner's allegations that his medical treatment fell short ofwhat Bureau of Prisons ("BOP") regulations and the United StatesConstitution require, and that the BOP retaliated against him forrequesting adequate medical care. The prisoner, Michael Kane ("Kane"), moved for appointment ofcounsel and requested a jury trial. Kane and Federal MedicalCenter-Devens Warden David L. Winn ("Warden") filed cross motions forsummary judgment.

For the reasons discussed below, Kane's Motions for Appointment ofCounsel [Doc. No. 14], for a Jury Trial [Doc. No. 5], and for SummaryJudgment [Doc. No. 11] were DENIED, the Warden's Motion for SummaryJudgment [Doc. No. 7] was ALLOWED, judgment was entered for the Warden,and no further filing fee was assessed.


A. Factual Background

1. Kane's Incarceration and Medical Condition

On March 23, 2000, the United States District Court for the EasternDistrict of Pennsylvania sentenced Kane to ten years in prison followedby five years of supervised release for distribution of methamphetamines,a violation of 21 U.S.C. § 841(a)(1). Def.'s 56.1 Stmt. [Doc. No. 8] ¶1; id. Ex. 1, Attach. A.2 On January 4, 2001, he wastransferred to Federal Medical Center-Devens ("FMC-Devens") in Ayer, Massachusetts, wherehe remains incarcerated. Id. ¶ 1; id. Ex. 1,Attach. F.

Kane, a 47-year-old man, id. Ex. 2 (Letter from Hinendi andGuzman to Howard of 2/11/02) [hereinafter "Hinendi Letter"], has ahistory of hepatitis B and C, diabetes mellitus type I,3 seizuredisorder, asthma, gastroesophageal reflux disease, and peptic ulcerdisease. Id. Ex. 1, Attach. C (Response to Request forAdministrative Remedy #241172-Fl of 6/15/01). He has chronic hepatitis C,and was apparently first diagnosed with hepatitis C about five years ago.Id. Ex. 2. His hepatitis C virus ("HCV") genotype is 1 (1A, tobe precise). Id. Ex. 1, Attach. G (Algorithm for Treatment ofHepatitis C/Approval Form of 3/6/03). He is overweight, has a history ofheavy drinking, and smokes. Id.

2. Nature, Monitoring, and Treatment of Chronic HepatitisC

a. Nature of Chronic Hepatitis C

An understanding of chronic hepatitis C is necessary to an evaluationof Kane's claims. HCV is an RNA virus, transmitted primarily through theblood, and which mainly impacts the liver. Def.'s 56.1 Stmt. Ex. 3, at 8(National Institutes of Health Consensus Development Conference Statement — Managementof Hepatitis C: 2002 (June 10-12, 2002), at 3-4, at http://odp.od.nih.gov/consensus/cons/I16/116cdc_intro.htm (last modified Sept.12, 2002) [hereinafter NIH Statement]. It is difficult for thebody's immune system to eradicate. Id. Ex. 4 (Nelson Decl.) 115. It resides in liver cells (hepatocytes), where it replicates andcauses cell death (necrosis). Id. Infection becomes chronic ifit persists for at least six months. NIH Statement, supra, at4.

According to the National Health and Nutrition Examination Survey of1988-1994, as of 1994, 3.9 million Americans were infected withHCV, an estimated 2.7 million of whom were suffering from chronicinfection. Id. at 3. That population-based household surveyalmost certainly underestimated levels of infection, as it did notinclude the incarcerated, the institutionalized, or the homeless, amongall of whom the disease is more prevalent than in the population atlarge. Id. An estimated 35,000 new HCV infections occur everyyear, and HCV is the most common blood-borne infection nationwide.Id. at 4.

As Harrison's Principles of Internal Medicine, a medicaltreatise that both Kane and the Warden cite as an accurate scientificreference, describes: "Milder forms [of chronic hepatitis] arenonprogressive or only slowly progressive, while more severe forms may beassociated with scarring and architectural reorganization, which, whenadvanced, lead ultimately to cirrhosis." Jules L. Dienstag & Kurt J.Isselbacher, Chronic Hepatitis, in 2 Harrison's Principlesof Internal Medicine 1742, 1742 (Eugene Braunwald et al. eds., 15thed. 2001) [hereinafter Chronic Hepatitis]. Twenty percent ofthose with chronic transfusion-associated hepatitis C (a class that mayinclude Kane) progress to cirrhosis. Id. at 1747.Hepatocellular carcinoma ("HCC") can follow,4 as canend-stage liver disease and liver failure. NIH Statement,supra, at 4; Chronic Hepatitis, supra, at 1747. At least10,000 to 12,000 deaths result from hepatitis C each year. NIHStatement, supra, at 5.

Progression of liver disease in chronic hepatitis C patients is morelikely "in patients with older age, longer duration of infection,advanced histologic stage and grade, genotype 1 (especially type Ib),more complex quasispecies diversity,5 and increased hepatic iron."Chronic Hepatitis, supra, at 1747 (footnote added). Duration ofinfection appears to be the most important of this set of variables, andseveral of the other factors, such as quasispecies diversity and hepaticiron accumulation, "probably reflect disease duration to some extent."Id. Of lesser but still substantial significance is theseverity of grade and stage; patients with mild grade and stage tendnot to progress to cirrhosis, whereas for patients with moderate orsevere grade and stage, "progression to cirrhosis is highly likely overthe course of 10 to 20 years." Id. Patients whosimultaneously suffer from other liver processes, such as chronichepatitis B,6 alcoholic liver disease, and hemochromatosis, are alsoprone to greater severity of chronic hepatitis and faster progression ofchronic liver disease. Id.

Still, for the majority of patients, the long-term prognosis is"relatively benign": Mortality over 10 to 20 years among patients with transfusion-associated chronic hepatitis C has been shown not to differ from mortality in a matched population of transfused patients in whom hepatitis C did not develop. . . . Overall, then, chronic hepatitis tends to be very slowly and insidiously progressive, if at all, in the vast majority of patients. . . .Id. "Among patients with compensated cirrhosis associatedwith hepatitis C, the 10-year survival is close to 80 percent. . . ."Id.

b. Classification and Monitoring of Chronic Hepatitis

"Classification of chronic hepatitis is based upon (1) itscause, (2) its histologic activity, or grade, and (3)its degree of progression, or stage." Id. The availableclassifications by cause include: "chronic viral hepatitis,caused by hepatitis B, hepatitis B plus D, hepatitis C, or potentiallyother unknown viruses; autoimmune hepatitis, including severalsubcategories; types 1, 2, and 3, based on serologic distinctions;drug-associated chronic hepatitis; and a category of unknowncause, or cryptoqenic chronic hepatitis." Id. at1742-43.

"Grade, a histologic assessment of necroinflammatory activity, is basedupon examination of the liver biopsy." Id. at 1743. At least inclinical practice, grade is typically categorized as "mild," "moderate,"or "severe," based on "[a]n assessment of important histologic features,"translated into a numerical score based on one of several availablescoring systems. Id. Typically, the histologic features to bemeasured include: periportal necrosis and the disruption of the limiting plate of periportal hepatocytes by inflammatory cells (so-called piecemeal necrosis or interface hepatitis); the degree of confluent necrosis that links or forms bridges between vascular structures — between portal tract and central vein — referred to as bridging necrosis; the degree of hepatocyte degeneration and focal necrosis within the lobule; and the degree of portal inflammation.Id.7 Of the available scoring systems, "the most popularis the numerical histological activity index (HAI), based on the work of Knodell and Ishak." Id. Although the HAI primarilymeasures grade, it "also includes an assessment of fibrosis, which iscurrently used to categorize stage of the disease."Id.

Classification by stage "reflects the level of progression of thedisease, [and] is based on the degree of fibrosis." Id. "Whenfibrosis is so extensive that fibrous septa surround the parenchymalnodules and alter the normal architecture of the liver lobule, thehistologic lesion is defined as cirrhosis.

There are five stages: 0 = no fibrosis 1 = mild fibrosis 2 = moderate fibrosis 3 = severe fibrosis, including bridging fibrosis 4 = cirrhosisId.

Michael B. Nelson, Chief of Health Programs for the BOP's HealthServices Division ("Division Chief Nelson"), states that "[t]he liver hasthe capacity to reverse fibrosis up until the development of stage 4."Def.'s 56.1 Stmt. Ex. 4, ¶ 6 (Nelson Decl.). Division Chief Nelsonfurther states that "[i]t is extremely unlikely that an individual willprogress more than one stage of fibrosis every ten years." Id.¶ 6. Kane disputes both these statements. He urges that "[t]heprecise point at which fibrosis becomes irreversible isunclear," although he cites no medical authority to support hiscontention. Pl.'s Summ. J. Opp'n at 5-6. Kane's filings also suggest thathe considers the typical rate of progression of the disease irrelevant,because numerous factors (such as his age and his hepatitis B) make hisliver disease apt to progress more quickly than is typical.

There are several means for determining grade and stage of hepatitis,three of which are relevant here. A physician can obtain the mostcomplete picture from a biopsy, which allows for direct measurement offibrosis (to determine stage) and of necrosis and inflammation (todetermine grade), and gives information on the possible contributions ofiron, steatosis, and concurrent alcoholic liver disease to theprogression toward cirrhosis. See Chronic Hepatitis, supra, at1743; NIH Statement, supra, at 8. The appropriate intervalbetween biopsies "is yet to be determined," NIH Statement,supra, at 8, but BOP guidelines suggest an interval of one tofive years for patients with normal liver histology or minimal fibrosis,and an interval of one year for patients with minimal fibrosis and markedhepatocellular inflammation and necrosis. See Def.'s 56.1 Stmt.Ex. 5, at 44 (Federal Bureau of Prisons Clinical Practice Guidelinesfor the Prevention and Treatment of Viral Hepatitis (Feb. 2003))[hereinafter BOP Practice Guidelines]; see alsoNelson Decl. ¶ 8 (stating that "consideration of a repeat biopsy [forKane] in three to five years[] is appropriate and consistent with BOPguidelines").

A second series of tools measures the levels of HCV in the body,typically by providing a qualitative or quantitative measure of levels ofantibodies against the virus. See id. The enzyme immunoassay ("EIA"), for example, is a reproducible,inexpensive, and FDA-approved means of diagnosing HCV infection,"suitable for screening at-risk populations" and "recommended as theinitial test for patients with clinical liver disease." Id.High levels of HCV load indicate infection, but say little about howlikely the disease is to progress or about how far it has progressed.Id. at 4. Quantitative assays for levels of HCV RNA (thegenetic material of the virus), commonly referred to as "viral load," canbe useful, particularly if the same specific quantitative assay is used.Id. at 7; Nelson Decl. ¶ 5.

Third, testing for serum levels of alanine aminotransferase ("ALT") "isthe most inexpensive and noninvasive, but relatively insensitive, meansof assessing disease activity." NIH Statement, supra, at 7.Liver cells release ALT, an enzyme, when they are damaged by HCV or othercauses, so ALT constitutes a rough indicator of how much inflammation andnecrosis (cell death) is occurring. Nelson Decl. ¶ 5. "In moststudies, a weak association exists between the degree of ALT elevationand severity of the histopathological findings on liver biopsy." NIHStatement, supra, at 7. "Serial determinations of ALT levels overtime may provide a better means of assessing liver injury, but theaccuracy of this approach has not been well documented." Id. c. Treatment of Chronic Hepatitis C

i. Monotherapy with Interferon

There are two approved approaches to antiviral therapy for chronichepatitis C: monotherapy with interferon and combination therapy withinterferon plus ribavirin. Chronic Hepatitis, supra, at 1748.In measuring a treatment's effectiveness, "end-treatment response" refersto response measured immediately after treatment ends, and "sustainedresponse" refers to response measured at least six months aftertreatment. Id.

Interferon, administered over a six-month period, produces anend-treatment result of no detectable levels of HCV in approximately 30percent of patients, but HCV counts go back up for 90 percent of thosepatients within six months. Id. Still, about three-fourths oftreated patients experience end-treatment histologic responses —typically reductions in periportal and lobular activity. Id. Inother words, although the chances of eliminating the virus from the bodyaltogether are quite low, monotherapy can often reduce the progress orseverity of liver disease. Sustained responsiveness to monotherapy ismore likely in patients with low HCV count and mild grade and stagehepatitis. Id. The variables that affect the disease's progressand severity tend to affect the likelihood that therapy will succeed.See id. Results can be improved by increasing the duration of therapy to twelvemonths or longer. Id. Specifically, sustained biochemical andvirologic response rises from ten percent to twenty percent. Higher dosesor more frequent injections, on the other hand, do not sufficientlyimprove results to compensate for the cost in intolerability.Id. If a patient relapses after a course of interferon therapy,a new course may be effective if dose or (preferably) duration isincreased, and under such circumstances sustained response rates as highas forty percent can be achieved. Id. If a patient does notrespond to an initial course of interferon therapy, future courses areunlikely to produce different results. Id.

As for side effects: Complications of interferon therapy include systemic "flulike" symptoms, marrow suppression, emotional lability (irritability commonly, depression rarely), autoimmune reactions (especially autoimmune thyroiditis), and miscellaneous side effects such as alopecia, rashes, diarrhea, and numbness and tingling of the extremities. With the possible exception of autoimmune thyroiditis, all these side effects are reversible upon dose lowering or cessation of therapy.Id. at 1745.

ii. Combination Interferon-Ribavirin Therapy

Although ribavirin is not by itself effective against HCV, incombination with interferon it is the most effective form of antiviraltreatment for chronic hepatitis C. Id. at 1748.8 Six-month courses of treatment have been shown to produce end-treatmentresponse rates over 50 percent and sustained response rates as high as 33percent, and twelve-month courses have produced response rates over 50percent and sustained response rates as high as 41 percent. Id.at 1748-49. As with monotherapy, the variables that affect the disease'sprogress and severity tend to affect the likelihood that therapy willsucceed. See id. at 1749. Side effects are similar tothose for interferon monotherapy, but include an additional risk ofhemolysis (a reduction in hemoglobin), nasal congestion, pruritus, andprecipitation of gout. Id.

iii. Indications and Contraindications for AntiviralTherapy

"All patients with chronic hepatitis C are potential candidates forantiviral therapy." NIH Statement, supra, at 11. Indicationsfor antiviral therapy for chronic hepatitis C patients include elevatedALT levels, detectable HCV RNA, and chronic hepatitis of at leastmoderate grade and stage. Chronic Hepatitis, supra, at 1749;NIH Statement, supra, at 11. "Patients with mild hepatitis onliver biopsy are not routine candidates for antiviral therapy, buttreatment decisions should be individualized between physician andpatient." Chronic Hepatitis, supra, at 1749. Similarly,antiviral treatment is not routinely recommended for patients with normalALT activity. Id. "Although response rates are lower inpatients with certain pretreatment variables, selection for treatment should not be basedon symptoms, genotype, viral load, or the mode of acquisition ofinfection." Id.

d. Federal Guidelines for Treatment of Prisoners with ChronicHepatitis C

Under BOP policy, combination therapy can only commence after aprisoner has completed a medical and psychological evaluation andsubmitted his most current "Algorithm for Treatment of HepatitisC/Approval Form." Nelson Decl. ¶ 2. The BOP PracticeGuidelines are based on the NIH Statement, and on thesuggestions of a number of nationally recognized experts who haveindependently reviewed the guidelines. Id. ¶ 3. DivisionChief Nelson states that there is no "community standard" with regard totreatment of hepatitis C, id. ¶ 4, but Kane obviouslycontests this.9

A closer examination of provisions in the BOP PracticeGuidelines demonstrates that they do in fact track the judgmentsfound in the NIH Statement and in Chronic Hepatitis.10 Forexample, BOP physicians considering inmates for antiviral therapy aretold to weigh the fact that long-term HCV complications develop in only ten to fifteen percent of patients, and typicallynot until twenty or thirty years after infection. BOP PracticeGuidelines, supra, at 41. Physicians are also encouragedto consider "[t]he presence of moderate to severe fibrosis andinflammation and necrosis on liver biopsy . . . the best markers fordetermining who should be offered antiviral therapy for hepatitis C."Id. Both statements are consistent with the aforementionedscientific sources. At the same time, the treatment considerationsemphasize how few patients require antiviral therapy, how difficult suchpatients are to identify, how unlikely therapy is to help, how effectivefuture treatments may be, and how many side effects there are, all in away that suggests somewhat more hostility to antiviral treatment than canbe found in the NIH Statement or in Chronic Hepatitis. SeeBOP Practice Guidelines, supra, at 41-42.

The BOP Practice Guidelines also provide the standards formonitoring inmates with chronic HCV infection, and for determining when,if at all, inmates should undergo a liver biopsy. Patients with minimallyelevated ALT (defined as less than two times the normal upper limit),which includes 40 percent of chronic HCV patients, are candidates for abiopsy, particularly if they have a history of alcohol abuse, wereinfected at an older age, or are to be in prison for a long time, suchthat a biopsy can facilitate development of a long term treatment plan.Id. at 42-43. Patients who consistently have ALT levels at least two times the upper normal limit should receivea biopsy unless antiviral therapy is contraindicated, and patients withsuspected compensated cirrhosis should also receive a biopsy.Id. at 43. It is recommended that biopsy candidates receive atest for HCV RNA as well. Id. None of these procedures isinconsistent with the NIH Statement or ChronicHepatitis.

If a patient's biopsy reveals portal or bridging fibrosis and at leastmoderate inflammation and necrosis, antiviral therapy is "recommended."Id. at 44. Inmates who fall short of moderate grade and stageshould be rebiopsied every one to five years if they have minimalfibrosis and normal liver histology, or within one year if they havemarked hepatocellular necrosis and inflammation. Id. Althoughall HCV genotypes are candidates for treatment, doctors are urged toconsider that patients with genotype 1 have response rates of 40 to 45percent to combination therapy, whereas those with genotypes 2 and 3 haveresponse rates of 76 to 82 percent. Id. All of this isconsistent with the scientific references in the record.

According to the guidelines, patients with a history of alcohol or drugabuse should be advised of the risks of active substance abuse duringtreatment. Id. at 48. For inmates infected with both hepatitisB virus ("HBV") and HCV, "[a]ntiviral therapy . . . should beinitiated with great caution, and only in consultation with a specialist. . . due to the uncertainty of the risks and benefits of treatment and lack ofa recommended treatment regime." Id.

The BOP Practice Guidelines do not list any "absolutecontraindications" for antiviral therapy that apply to Kane. Seeid. at 73. Kane's hepatitis B co-infection, poorly controlleddiabetes, and history of recent alcohol abuse or illicit drug usageconstitute potentially relevant "relative contraindications," however.See id. Again, all of this is consistent with the science inthe record, as are the guidelines `recommended pre-treatment screeningtests and mental health evaluation, description of the nature, properadministration, and side effects of antiviral therapy, and provisions formonitoring, assessing, and when necessary, retreating patients undergoingsuch therapy. See id. at 44-48.

3. Kane's Treatment and Administrative Appeals

According to Kane, he was first diagnosed with hepatitis C about fiveyears ago. Hinendi Letter, supra, at 1. He is not sure when hebecame infected, but he alleges that the disease "had been attacking hisliver for at least 8-years." See Pl.'s Summ. J. Opp'n at 2. Hehas been seeking combination therapy since shortly after his transfer toFMC-Devens; on May 25, 2001, he filed for an Informal Resolution to getsuch treatment, but was unsuccessful. See Def.'s 56.1 Stmt. Ex.1, Attach. C. He filed a request for an administrative remedy on May 29,2001, presumably after his evaluation during a clinic visit scheduled onthe same day. See id. The Warden denied the request on June 15,2001, noting that prison procedures required elevated ALT levels over aperiod of twelve months, which Kane could not demonstrate, and that hisHBV co-infection constituted a relative contraindication for antiviraltreatment. Id. Kane appealed to the Regional Director on June26, 2001. Id., Ex. 1, Attach. D. The Regional Director denied the appealon August 2, 2001, making similar references to prison procedures andnoting that Kane was receiving good medical care, as evidenced byfrequent examinations by mid-level practitioners, sequential laboratorytests performed between February and June 2001, and an evaluation by aninfectious disease specialist on June 10, 2001. Id. Kaneappealed to the National Administrator of Inmate Appeals, who denied theappeal on September 20, 2001, with emphasis laid on Kane's normal ALTlevels. Id. Ex. 1, Attach. E.

A May 2, 2000 report on various tests done on Kane shows an ALT levelof 104 IU/L, and lists the reference range as 8 to 40 IU/L. Pl.'s Pet.Mem., Attach. Division Chief Nelson states that the normal range for mostlaboratories is 40 to 45 IU/L. Nelson Decl., supra, ¶ 8.Under either range, Kane's ALT level was more than two times the upperlimit. The report also reveals positive results for HBV and HCV. Pl.'sSumm. J. Resp., Ex. at 1. There is no information in the record about Kane's ALT levels in 2001,apart from statements of prison officials responding to Kane's appeals.Kane underwent an HCV RNA test on April 4, 2001, which revealed a viralload of 4,097,600. Id. A July 2003 test revealed an ALT levelof 69. Id. Ex. at 8.

In early 2002, Kane was referred to the GI/Liver Clinic at theUniversity of Massachusetts Memorial Medical Center in Worcester,Massachusetts. Hinendi Letter, supra, at 1. At that time, heexpressed his continuing interest in starting combination therapy.Id. The doctor noted that his diabetes was apparentlywell-controlled, and recited the medical history discussed above.Id. The physician noted that "the patient is determined tostart the medication" and recommended starting combination therapy withfollow up testing, including blood work and measurement of his HCV RNA orviral load. Id. at 3.

Over the course of 2002, Kane's ALT levels were measured three times,with results of 68, 57, and 56 IU/L. Id. Ex. 1, Attach. G. Asprison officials state in numerous places in the filings, and as isevident from the "Algorithm for Treatment of Hepatitis C/Approval Form,"see id., consistent elevation of at least 1.5 timesthe upper limit of the normal range over twelve months is an importantindicator for antiviral treatment. Even using a normal range of 8 to 40IU/L (as opposed to 40 to 45 IU/L), Kane's ALT levels were notconsistently 1.5 or more times the upper limit during the testing period. Kane underwent a liver biopsy in September 2002, and the HAI wasapparently used to measure grade. See Pl.'s Summ. J. Opp'n,App. A score of 0-6 indicates mild grade, and Kane received a 5.Id. In particular, he showed some portal inflammation,interface hepatitis (piecemeal necrosis), and focal (spotty) lobularinflammation, but no confluent necrosis (also called bridging necrosis).Id. As for stage, on a scale of 0 to 4, Kane received a 1,showing mild fibrosis.11 Id.; Chronic Hepatitis,supra, at 1743. As mentioned earlier, one important indicator forantiviral treatment under the BOP Practice Guidelines is thepresence of either portal or bridging fibrosis and at least moderateinflammation and necrosis. BOP Practice Guidelines, supra, at44. As of the biopsy, Kane had portal inflammation and some fibrosis, buthis inflammation and necrosis (as expressed in grade) were "mild," notyet "moderate."

Kane received his psychiatry/psychology clearance on February 26, 2003,after which he was considered for antiviral treatment but denied on March6, 2003. Def.'s 56.1 Stmt. Ex. 1, Attach. G. Division Chief Nelson notedKane's minimal inflammation and fibrosis, and recommended a repeat biopsyin three to five years. Id. Although Kane previously hadregular visits with doctors monitoring his condition, a June 2003 reportindicated that he had not seen a doctor for approximately five months. See Def.'s 56.1 Stmt. Ex. 1, Attach. F (InmateHistory as of 6/25/03).

B. Procedural Posture

Kane filed a petition for habeas corpus relief under28 U.S.C. § 2241 on April 28, 2003. [Doc. No. 1]. He also allegedjurisdiction under the Administrative Procedure Act,5 U.S.C. § 701-706, 18 U.S.C. § 4042, and 28 U.S.C. § 1361.12 Pl.'s Pet. Mem. at 2. His petition alleges that the staff atFMC-Devens improperly denied him proper medical care and retaliatedagainst him for seeking relief. Id. at 4-5. He sought an order compellingadministration of proper medical treatment, transfer to anotherfacility, or release from FMC-Devens. Id. at 1-2, 12.

Pursuant to this Court's order dated July 18, 2003, Kane's claimsagainst two FMC-Devens doctors, Dr. Sandra Howard and Dr. Fazal Bhatti,were dismissed, leaving only his claims against the Warden. Kane and theWarden filed cross motions for summary judgment, and Kane requestedappointment of counsel and a jury trial.


A. Role of the Courts in Protecting Prisoners' Rights This case presents four questions of particular significance. First,what rights does Kane have under the Constitution and under relevantstatutes and regulations? Second, are Kane's rights under statutes andregulations enforceable in court? Third, are Kane's claims the sort thathabeas corpus petitions can appropriately address? Fourth, if a habeaspetition is not the proper vehicle for Kane's claims, how should theCourt treat his petition, particularly in light of new restrictionsembodied in the Prison Litigation Reform Act? In answering thesequestions of statutory interpretation and constitutional law, the Courtmust consider the social and political realities that prisoners confront,the human rights commitments embodied in our Constitution, in our legaltraditions, and in international law, and the role that courts havehistorically played in realizing those commitments.

As a marginalized group, prisoners are especially apt to requirejudicial protection. The United States has both a strong commitment tohuman rights and a clear history of human rights violations againstprisoners, making such protection particularly appropriate and necessary.In light of these legal and empirical factors, courts should readprisoner petitions generously, give them careful consideration, andresolve statutory ambiguities in prisoners `favor. Because the Court'sresearch has revealed numerous cases that failed to do so, and thatclosed the courthouse doors to prisoners in the process, an extensivediscussion is in order.13

1. Prisoners and American Society

As Fyodor Dostoevsky once said: "The degree of civilization in asociety can be judged by entering its prisons." Dostoevsky spoke fromexperience, having spent several years as a prisoner in his nativeRussia, and the brutal trials he endured tell us much about the governingorder in his homeland at that time. Prison conditions provide aparticularly accurate barometer of a society's values, because thesociety's conception of human rights, of the basic dignity to which aperson is entitled because of the simple fact of her humanity, istypically the primary, sometimes even the only constraint on whatsufferings the state can impose. Even in the United States, an affluentand industrialized nation with a stable representative democracy and acomparatively strong civil rights tradition, serious human rightsviolations occur in the prison system, although there is disagreementabout their frequency and severity. Prisoners are not a sympathetic minority; certainly in this country,there are few places where a politician will win votes by standing up forthe rights of prisoners. See Harold J. Krent, The PuzzlingBoundary Between Criminal and Civil Retroactive Lawmaking, 84 Geo.L.J. 2143, 2169 (1996). Few prisoners have any substantial wealth withwhich to influence elections or even public policy debates,14 andtheir ability to communicate with their fellow citizens, the primaryalternative means available to influence public policy, is obviouslyseverely limited. See id. Moreover, the prisonpopulation draws largely from groups who are already marginalized in oursociety, including the poor, the mentally ill, and to a frightening degree, racial minorities.See id.15

a. Lack of Political Power

Perhaps even more important than prisoners `lack of opportunity toparticipate in public debate is the fact that prisoners themselvesgenerally cannot vote. See generally Developments in the Law —The Law of Prisons, 115 Harv. L. Rev. 1838, 1939-63 (2002)[hereinafter Law of Prisons]; see also Richardson v.Ramirez, 418 U.S. 24, 54-56 (1974) (holding that disenfranchisementof convicted criminals, without more, does not violate the EqualProtection Clause of the Fourteenth Amendment).16 Only two states,Maine and Vermont, permit prisoners to vote during their incarceration. Law of Prisons,supra, at 1942 & n.21; see Me. Rev. Stat. Ann. tit.21-A, § 112(14); Vt. Stat. Ann. tit. 28, § 807(a).17 Manystates also limit the right of those convicted of crimes18 to vote aftertheir incarceration ends, thus making it even less likely that theirexperience with the prison system cannot translate into legislativereforms.19 In California, Colorado, Connecticut, and New York,neither the incarcerated nor parolees can vote. Law of Prisons,supra, at 1943 & n.26. Thirty states deny the vote not only to parolees, but also to felony probationers.20 TheSentencing Project, Felony Disenfranchisement Laws in the UnitedStates 3, athttp://www.sentencingproject.org/pdfs/1046.pdf (Apr. 2004). Fourteen ofthose states permanently disenfranchise some category or categories ofconvicted criminals who have completed their sentences, beyond theordinary categories of treason and election-related offenses, and sevenof these states — Alabama, Florida, Iowa, Kentucky, Mississippi,Nebraska, and Virginia — permanently disenfranchise first-timeoffenders. Id.

A glance at the racial disparities in disenfranchisement reinforces theCourt's point about the overlap between the prison population and otherdisfavored groups in society. As of December 31, 2000, 4,686,539Americans, 2.28% of the voting age population, were disenfranchised forconvictions of crimes, an estimated 1,654,497 of whom had completelyserved their sentences, and only 1,209,243 of whom were in prison. Uggen& Manza, supra, at 797 app. tbl. A. In comparison, amongAfrican Americans, 1,841,515 African Americans, 7.48% of the AfricanAmerican voting age population, were disenfranchised due to convictionsof crimes, of which 550,308 had completed their sentences, and 632,474 were still in prison. Id. at 798app. tbl. B. Thus, African Americans are disenfranchised at 3.28times21 the rate in the general population.22

The problem of disenfranchisement of Latinos in America has been lessstudied, but one study of the extent of the problem in ten statesrevealed that in at least six of those states, Latinos weredisenfranchised at a higher rate than the general population.See Marisa J. Demeo & Steven A. Ochoa, DiminishingVoting Power in the Latino Community: The Impact of FelonyDisenfranchisement Laws in Ten Targeted States 16-17, at http://www.sentencingproject.org/pdfs/maldef-rpt.pdf (Dec.2003).23 Because many Latinos counted in the census are not in factcitizens, when citizenship was taken into account, the results becamestarker, showing disparities in at least nine of the states.See id. Leaving out Virginia (for which data wereunreliable),24 taking the unweighted average proportion ofdisenfranchised Latinos to disenfranchised members of the populationamong the remaining states, and accounting for citizenship, the studyreveals that in those nine states Latinos are disenfranchised at 1.73times the rate seen in the general population. Seeid. at 17. This is less stark than the 3.28 figure for AfricanAmericans, but it is still cause for concern. Compare Demeo& Ochoa, supra, at 17, with Uggen & Manza,supra, at 797-98, app. tbls. A-B; see also Demeo& Ochoa, supra, at 19-21 (comparing Latino and AfricanAmerican disenfranchisement rates in the ten states studied, andrevealing much greater disparities for the latter group).

b. High Representation of Marginalized Groups in theIncarcerated Population These numbers are hardly surprising, given the substantialover-representation of racial minorities in the prison population.25Human Rights Watch has usefully summarized data from the 2000 census,which reveals that African Americans, though making up only 12.3% of thepopulation, constitute 43.7% of the country's incarcerated population.Human Rights Watch, Race and Incarceration in the United Statestbl. 4, at http://hrw.org/backgrounder/usa/race/#P10_1649 (Feb.27, 2002) [hereinafter Race and Incarceration in the UnitedStates]. Similarly, though less starkly, Latinos make up 12.5% ofthe population, but constitute 16.5% of the country's prison population.Id. tbl. 5.26 Among youths under 18 nationwide, Latinoyouths are incarcerated at twice the rate of white American youths, andAfrican American youths are incarcerated at 5.3 times the rate of whiteAmerican youths. Id. tbl. 7. As one might expect, there arenumerous states where the racial disparities in all these regards areeven more shocking than the national averages. Race and Incarceration in the UnitedStates, supra.27 The mentally ill are also well-represented in the prisonpopulation.28 Somewhere between eight and twenty percent ofincarcerated people suffer from a serious mental illness, as compared toabout five percent of the population at large. Human Rights Watch,111-Equipped: U.S. Prisons and Offenders with Mental Illnessch. 3, at http://www.hrw.org/reports/2003/usa1003 (Sept. 2003)[hereinafter 111-Equipped] (citing numerous studies). Theseestimates translate into approximately 300,000 mentally ill inmates, withperhaps 70,000 who are psychotic. Id. A 1999 report by thefederal Bureau of Justice Statistics estimates that sixteen percent ofstate and federal adult prisoners and a similar percentage of adults injail were mentally ill, which would translate into over 230,000 adultswith mental illness in prisons and over 106,000 in jails. Seeid. (citing Paula M. Ditton, Bureau of Justice Statistics,Mental Health and Treatment of Inmates and Probationers 3,at http://www.ojp.usdoj.gov/bjs/abstract/mhtip.htm (July 1999),and Paige M. Harrison & Alien J. Beck, Bureau of Justice Statistics,Prisoners in 2002, at http://www.ojp.usdoj.gov/bjs/pub/pdf/ p02.pdf (July 2003) [hereinafter Prisoners in 2002].Commenting on the high number of mentally ill inmates in Texas, JudgeWilliam Wayne Justice has said: It is deplorable and outrageous that this state's prisons appear to have become a repository for a great number of its mentally ill citizens. Persons who, with psychiatric care, could fit well into society, are instead locked away, to become wards of the state's penal system. Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their psychoses.Ruiz v. Johnson, 37 F. Supp.2d 855, 915 (S.D. Tex.1999).29

The poor and uneducated also make up a substantial portion of theincarcerated population. For example, 68% of state prison inmates in 1997had not completed high school. The Sentencing Project, Facts AboutPrisons and Prisoners 1, at http://www.sentencingproject.org/pdfs/1035.pdf (Oct. 2003) (citing figurespublished by the Bureau of Justice Statistics). In 1996, 36% of jailinmates were unemployed prior to entering jail, and 64% of jail inmateshad monthly incomes of under $1,000 in the month before their arrest.Caroline Wolf Harlow, Bureau of Justice Statistics, Profile of Jail Inmates 1996 3-4,at http://www.ojp.usdoj.gov/bjs/pub/pdf/pji96.pdf (Apr. 1998)[hereinafter Profile of Jail Inmates].

Children constitute another vulnerable group that is increasinglyrepresented in the prison population. See generally AmnestyInternational, Betraying the Young: Human Rights Violations AgainstChildren in the U.S. Justice System, athttp://web.amnesty.org/library/index/ENGAMR510571998 (Nov. 20,1998); Human Rights Watch, Children in Confinement in Louisianaat http://www.hrw.org/reports/1995/Us3.htm (Oct. 2000); Human RightsWatch, Detained and Deprived of Rights: Children in the Custody ofthe U.S. Immigration and Naturalization Service athttp://www.hrw.org/reports98/ins2 (Dec. 1998) [hereinafterDetained and Deprived of Rights]; Human Rights Watch, HighCountry Lockup: Children in Confinement in Colorado, athttp://www.hrw.org/reports/1997/usacol (Aug. 1997); Human RightsWatch, No Minor Matter: Children in Maryland's Jails, athttp://www.hrw.org/reports/1999/maryland (Nov. 1999) [hereinafterChildren in Maryland's Jails]; Human Rights Watch,Slipping Through the Cracks: Unaccompanied Children Detained by theU.S. Immigration and Naturalization Service, athttp://www.hrw.org/ reports/1997/uscrcks (Apr. 1997) [hereinafterSlipping Through the Cracks]. Incarcerated children areobviously at greater risk of violence from both other children andadults. See, e.g., Children in Maryland's Jails, supra, at ch.1. Moreover, sensory deprivation in solitary confinement, poor nutrition and medicalcare, and other deprivations common in prisons and jails weigh harder onchildren than on adults. See, e.g., id.

Immigrant detainees constitute yet another marginalized and vulnerablegroup in the incarcerated population. See generally Detained andDeprived of Rights, supra; Human Rights Watch, Locked Away:Immigration Detainees in Jails in the United States, athttp://www.hrw.org/reports98/us-immig (Sept. 1998); Slipping Throughthe Cracks, supra. As of 1998, the Immigration and NaturalizationService ("INS") was housing 60 percent of its detainees in local jails,despite their non-criminal status. Immigration Detainees in Jails,supra, at ch. 1. The conditions in jails and prisons, troubling asthey are for incarcerated criminals, are even more so for immigrantdetainees, whose confinement is not supposed to constitute punishment.Moreover, foreign citizens may have more difficulty in seeking redressfor violations of their rights, particularly if they cannot speak Englishwell.

c. Size of the Incarcerated Population

Of course, the marginality and vulnerability of the prison populationare not the only reasons for concern about its exposure to human rightsviolations. The sheer number of incarcerated people in the United Statesmeans that any human rights problems in our prisons, particularly if theyare at all systemic, will impact a great many of our citizens. At the end of2002, 2,166,260 persons were incarcerated in the United States (1,361,258in federal and state prisons, 665,475 in jails, and 6.5% of in privateprisons). Prisoners in 2002, supra, at 1-2, 6. The number ofincarcerated individuals has increased an average of 3.6% per year since1995. Id. This means that as of 2002, the United Statesincarcerated its citizens at a rate of 702 per 100,000, and that we havefinally surpassed Russia in incarcerating a larger percentage of ourpopulation than any country in the world. Marc Mauer, The SentencingProject, Comparative International Rates of Incarceration: AnExamination of Causes and Trends 1-2, at http://www.sentencingproject.org/pdfs/pub9036.pdf (June 20, 2003).30 Indeed,we incarcerate at five to eight times the rate of Canada and thecountries of Western Europe. Id.

As reported above, estimates indicate that if the 2001 incarcerationrate of 685 per 100,000 population31 remained steady, 6.6% of personsborn in this country in 2001 would spend time in state or federal prisonduring their lifetimes. Prevalence of Imprisonment, supra at 2.Given that the rate of incarceration has since increased 2.6%, seePrisoners in 2002, supra, at 1, with no sign that it will stop growing, andthat the government's figures do not include jails, see Prevalenceof Imprisonment, supra, at 2 (stating that there were 1,319,000adults confined in state or federal prisons the end of 2001), thepercentage of individuals born in 2001 who will be incarcerated overtheir lifetimes is obviously higher. Because turnover rates in jails areon average higher than those in prisons, and because roughly one third ofcurrently incarcerated people are in jail, see Prisoners in 2002,supra, at 1-2, it would not surprise the Court if over ten percentof people born in the United States this year will be incarcerated overtheir lifetime.

2. Deprivations that Prisoners Face

Although the marginality of the prison population is reason enough forheightened judicial protection, the persistence of human rightsviolations in our prisons provides further justification. When courtsconsider prisoner petitions, they must be aware of the many kinds ofviolations that occur. Even if human rights violations are not systemic,they occur with sufficient frequency that judges should be attuned to thepossibility that one has occurred in a particular case. Moreover, even ifa particular petition alleges a sort of violation that rarely occurs, anygenerally applicable statutes or other laws must be interpreted in lightof the overall level of violations occurring in our prisons. Prisoners face several kinds of deprivations. In May 2000, the UnitedNations Committee Against Torture considered the United States' initialreport on implementation of the United Nations Convention AgainstTorture. See Convention Against Torture and Other Cruel,Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res.39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51,available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm[hereinafter "Convention Against Torture"]. Amnesty International ("AI")describes the Committee's response as follows: In its conclusions and recommendations the Committee welcomed "the extensive legal protection" against torture and ill-treatment in the USA but found failings in important areas, many of which had been raised by AI. Areas of concern highlighted by the Committee included torture and ill-treatment by police and prison guards — much of it racially motivated; the sexual abuse of female prisoners by male guards; prisoner chain gangs; and the "excessively harsh regime" of supermaximum security (isolation) units. The Committee urged the USA to abolish electro-shock stun belts and restraint chairs, stating that their use "almost invariably" led to breaches of the Convention; and to cease holding juveniles and adult prisoners together.Amnesty International, United States of America in AmnestyInternational Report 2001 at http://web.amnesty.org/web/ar2001.nsf/webamrcountries/UNITED+STATES+OF+AMERICA?Open Document (2001).This Court's own experience lends credibility to this assessment. Inroughly a quarter century of judging, this Court has sentenced threecriminals who later died of unnatural causes in prison: one was murdered, one committed suicide, and one died ofa heart attack that might well not have occurred, and in any case likelywould not have been fatal, had he not been in prison.

There are many cases that present virtually all of the problems theCommittee Against Torture discussed. For example, on October 12, 1994,the Criminal Justice Complex in the Virgin Islands entered into a consentdecree regarding prison conditions, but three years later, the courtfound that: the prison was still housing close to twice as many inmatesas the consent decree permitted (and over three times as many inmates asthe facility was designed to house); many inmates had to sleep onmattresses on the floor, often with their heads against the toilet, suchthat other inmates would urinate on them during the night; the mattresseswere soiled, damaged, rarely exchanged, and often soaking wet; the roofswere leaking; light fixtures and hot water heaters were not functioning;the drinking water was unsanitary; inadequate ventilation was creatingan environment where disease could spread easily; cells were flooded;rodents and cockroaches infested the facility; fire safety provisions andmedical care and equipment were inadequate; neither mentally ill inmatesnor violent inmates were housed separately from other inmates; mentalhealth services were nonexistent; prison authorities failed to preventviolence, particularly gang violence, and also used excessive forceagainst inmates; and prison policies violated the Americans WithDisabilities Act and inmates `constitutional rights to free exercise of religion andaccess to courts, law libraries, mail, telephone, and visitation.See Cartv v. Farrelly, 957 F. Supp. 727, 732 &n.3, 735-42 (D.V.I. 1997). Four years later, the court found continuingviolations, and sua sponte held the relevant Virgin Islandsofficials in contempt. Cartv v. Turnbull, 144 F. Supp.2d 395,419 (D.V.I. 2001).

The federal government has investigated numerous correctionalfacilities in recent years, and has found what it considers to beextensive constitutional violations in at least seventeen states andterritories.32 The United States has filed lawsuits under the CivilRights of Institutionalized Persons Act of 1980,42 U.S.C. § 1997-1997J, against state and county officials inArizona, Georgia, Kentucky, Louisiana, Michigan, Mississippi, New York, the Northern Mariana Islands, Tennessee, andWyoming. See Special Litigation Section, U.S. Department ofJustice, Documents and Publications, athttp://www.usdoj.gov/crt/split/findsettle.htm#Settlements (last visitedMay 6, 2004). Most of these lawsuits have led to a settlement or consentdecree.33

One of the most famous descriptions of degrading prison conditions isJudge Justice's 125-page opinion in Ruiz v. Estelle,503 F. Supp. 1265 (D.C. Tex. 1980), which found "rampant overcrowding,inadequate security, substandard health care, inappropriate disciplinarypractices, and substantially impeded access to the courts" in the Texasprison system. Id. at 1384. As Judge Justice said: [I]t is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls — the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices.Id. at 1390. Although the case is an old one, it meritsmentioning, because as of 2001, Judge Justice held that despite manydramatic improvements in conditions, the Texas prison system was still inviolation of the prohibition against cruel and unusual punishment withregard to "conditions of confinement in administrative segregation,failure to provide reasonable safety to inmates against abuse, and theexcessive use of force by correctional officers." Ruiz v.Johnson, 154 F. Supp.2d 975, 1001 (S.D. Tex. 2001).

a. Violence at the Hands of Prison Officials

As the Committee Against Torture suggests, one of the most obvioushuman rights concerns in prisons is violence. Unlawful physical violenceat the hands of prison guards certainly occurs, although for obviousreasons reliable statistics are hard to come by. The Court thereforecannot do much better than to provide a few recent examples. Two formerprison guards at the Curran-Fromhold Correctional Facility recentlyreceived convictions and prison sentences for punching, kicking, andotherwise using excessive force against inmate Donti "Pumpkin" Hunter,and a former prison warden received a conviction and prison sentence fortrying to cover up the beating. Jim Smith, Mike McGrath: Ex-prisonGuard Who Beat Inmate Gets Jail Term, Phila. Daily News, Aug. 22,2003, at 19, available in 2003 WL 56070813. Closer to home, a former jail guard and four other former officers at theNashua Street Jail in Boston recently received convictions and prisonsentences for their respective roles in the beating of a detaineeawaiting trial. Ken Johnson, Jail Guard Given Prison Sentence,Patriot Ledger, Mar. 10, 2004, at 10, available in 2004 WL62227844. Prison guards have also been convicted of organizing assaultson inmates at a federal prison in Florence, Colorado, and at Pelican BayState Prison in Crescent City, California, a super-maximum ("supermax")facility. See "Cowboy" Guards Must Remain in Jail, Judge Says,Rocky Mountain News, July 3, 2003, at 32A, available in 2003 WL6368342; Jaxon Van Derbeken & Susan Sward, Probe of Chief's SonCalled Unusual / Feds Rarely Intervene in Cases of Alleged Brutality byPolice, S.F. Chron., Dec. 7, 2003, at A29. Courts have also foundmore systemic violations in this regard. See, e.g., Sheppard v.Phoenix, 210 F. Supp.2d 450, 451-52 (S.D.N.Y. 2002) (describing thestipulation and order of settlement in a case alleging a pattern ofprison guard brutality). Even if the examples the Court provides areisolated incidents, they are cause for concern.

Sexual violence is also a serious problem. Female prisoners inparticular have suffered sexual harassment, assault, and rape at thehands of prison guards. As of 1996, inmates in prisons for women weremore likely than not to be guarded by men. Human Rights Watch, AllToo Familiar: Sexual Abuse of Women in U.S. State Prisons ch. 1,at http://hrw.org/reports/1996/Usl.htm (Dec. 1996) [hereinafter All Too Familiar].34 A HumanRights Watch report examining women's prisons in California, Georgia,Illinois, Michigan, New York, and Washington, D.C. states: We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and have engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women's breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisoners for women which is often highly sexualized and excessively hostile.Id. Although the law in all of these jurisdictions prohibits sexualmisconduct of the kind described, Human Rights Watch reports that sexualmisconduct is rarely investigated, much less punished, and thatpunishments tend to be light. Id. Human Rights Watch foundinternal administrative remedies to be largely ineffectual, with theofficers accused of misconduct sometimes even investigating themselves.Id. Virtually every prison examined required the inmate toconfront her abuser before filing a grievance, which made it unlikelythat sexual misconduct would be reported. Id. It is difficultenough for a woman to confront her assailant outside of prison, and thefact that an accused prison guard and his colleagues can and frequentlydo retaliate against a prisoner who complains makes any report atremendous act of courage.35 Id.; see HumanRights Watch, Nowhere To Hide: Retaliation Against Women in MichiganState Prisons ch. 1, at http://www.hrw.org/reports98/women(July 1998) ("Virtually all of the women incarcerated in Michigan whowere interviewed for All Too Familiar and who had lodged complaints of sexualharassment or abuse have suffered some form of retaliation by the accusedofficer, his colleagues, or other inmates."). Studies estimate thatnearly half of all female inmates suffer physical or sexual abusesometime before their incarceration begins, so their continued exposureto such abuse recalls Judge Justice's statement about the effects ofconfinement on the mentally ill: "Then, in a tragically ironic twist,they may be confined in conditions that nurture, rather than abate, theirpsychoses." Ruiz, 37 F. Supp.2d at 915.

Other discussions of sexual assault on female inmates in this countryhave made observations similar to those in All Too Familiar,and have reached similar conclusions. See U.S. Gen. AccountingOffice, Women in Prison: Sexual Misconduct by Correctional Staff,at http://www.gao.gov/archive/1999/ gg99104.pdf (June 1999)(focusing on staff-on-inmate misconduct in four U.S. correctionaljurisdictions); Report of the Special Rapporteur on Violence AgainstWomen, Addendum: Report of the Mission to the United States of America onthe Issue of Violence Against Women in State and Federal Prisons,U.N. ESCOR, 55th Sess., Agenda Item 12, at 4, U.N. Doc.E/CN.4/1999/68/Add.2 (1999), available athttp://www.unhchr.ch/Huridocda/Huridoca.nsf/0/7560a6237c67bb118025674c004406e9?0pendocument; AmnestyInternational, "Not Part of My Sentence": Violations of the HumanRights of Women in Custody at http://web.amnesty.org/ library/Index/engAMRS10011999 (Mar. 1999).

Recent cases also confirm what these reports document.36 In thefirst installment of the mid-1990s litigation brought by female inmatesagainst the District of Columbia correctional system, the district courtfound that "there have been many instances of sexual misconduct betweenprison employees and female prisoners in all three of the women'sfacilities in this case," including "forceful sexual activity,unsolicited sexual touching, exposure of body parts or genitals andsexual comments." Women Prisoners of Dist. of Columbia Dep't ofCorr. v. District of Columbia, 877 F. Supp. 634, 639 (D.D.C. 1994)[hereinafter Women Prisoners],37 vacated and modified in parton other grounds, 899 F. Supp. 659 (D.D.C. 1995), rev'd in part and remanded on other grounds, 93 F.3d 910 (B.C.Cir. 1996), cert. denied, 520 U.S. 1196 (1997),on remand, 968 F. Supp. 774 (D.D.C. 1997) (order regardingsexual harassment, medical care, programs, environmental health, and firesafety); see also Daskalea v. District of Columbia,227 F.3d 433, 441-42 (D.C. Cir. 2000) (affirming a jury verdict of municipaldeliberate indifference to routine practice of sexual harassment offemale inmates). In other litigation, the federal government has recentlyreached substantial settlements with the states of Arizona and Michiganregarding sexual misconduct and privacy violations that female inmateshave suffered at the hands of prison guards.38 SeeUnited States v. Michigan, No. 97-CVB-71514-BDT (E.D. Mich.Aug. 17, 1999) (consent decree); United States v. Arizona, No.97-476-PHX-ROS (D. Ariz. Mar. 11, 1999) (consent decree).39

Rape of female inmates by male officers was one of many constitutionalviolations addressed by consent decrees in Cason v.Seckinger, 231 F.3d 777 (11th Cir. 2000), which challengedconditions in the Georgia prison system. See Cason, 231 F.3d at779 & nn.2-4. The suit was filed by male prisoners in 1984, andfemale prisoners were brought into the action in 1992. Ellen Lord, Lawsuit Over Prisons Terminated, Macon Telegraph,Aug. 10, 2001, at 2, available in 2001 WL 25431971. Over 200female inmates claimed to be victims of sexual misconduct. Id.In response to the suit, the Georgia Department of Corrections has addedtwo more female prisons, reduced the ratio of male officers to femaleinmates, and improved mental health and counseling services.Id. Consent decrees in the case addressed such things as use offorce, physical restraints, seclusion, stripping, and investigation,training, and counseling regarding sexual harassment and abuse.Cason, 231 F.3d at 779 nn.3-4.

The Federal Bureau of Prisons' recent $500,000 settlement in Lucasv. White, 63 F. Supp.2d 1046 (N.D. Cal. 1999), provides anotherexample. In that case, three female inmates housed in the FederalDetention Center at Pleasanton, California alleged that prison guardsdeliberately exposed them to sexual abuse by male inmates.Lucas, 63 F. Supp.2d at 1050; Nina Siegal, Stopping Abusein Prison, The Progressive, Apr. 1, 1999, at 31, availablein 1999 WL 3680419. The settlement included institutional reform aswell as money damages. Both on the national level and within thePleasanton facility, the federal government agreed to the establishmentof a training program to prevent sexual assault of female prisoners,provision of psychological and medical services for sexual assaultvictims, revision and amendment of the program statement for victims ofsexual assault, adoption of measures to protect victim confidentiality, and comprehensive monitoring of these reforms.Lucas, 63 F. Supp.2d at 1051.

Locally, the Suffolk County Sheriff's Department just settled a lawsuitwith a former female inmate who alleged she was coerced into having sexwith three prison guards, one of whom fathered her child. SeeSettlement Order of 3/18/04 [Doc. No. 84] in Doe v. Rouse, Civ.A. No. 01-CV-10625-WGY (D. Mass, filed Apr. 13, 2001); Shelley Murphy,Former Inmate, Sheriff Settle Suit: Department Will Pay $675,000 inCase, Boston Globe, Mar. 17, 2004, at B5, available in2004 WL 59777318. Given that the case was before this Court, and that thedefendants admitted to no wrongdoing, it would be inappropriate tocomment on the merits, but the Court notes that as a result of theincident, Massachusetts passed a law criminalizing sexual contact betweenprison guards and inmates. Murphy, supra; see Mass.Gen. Laws ch. 268, § 21A. At the time the statute was passed,Massachusetts was one of thirteen states that had yet to pass such a law.Murphy, supra.

b. Inmate-on-Inmate Violence

Perhaps more common than prison guard violence is inmate-on-inmateviolence. In 2000, 34,355 inmate-on-inmate assaults were reported. JamesJ. Stephan & Jennifer C. Karberg, Bureau of Justice Statistics,Census of State and Federal Corrections Facilities, 2000, at v,at http://www.ojp.usdoj.gov/bjs/ pub/pdf/csfcf00.pdf (Aug. 2003) [hereinafter Census of Stateand Federal Corrections Facilities]. In 1996, 14% of jail inmatesreported having been in a fight, hit or punched since entering jail.Profile of Jail Inmates, supra, at 13. Higher estimates suggestthat as many as 70% of all inmates are assaulted in a given year.See Encyclopedia of American Prisons 379 (Marilyn D.McShane & Frank P. Williams, III eds., 1996). Of the 3,175 inmatedeaths during the year ending June 30, 2000, between one and threepercent were homicides. Census of State and Federal CorrectionsFacilities, supra, at 8. The Court expects that, if anything,inmate-on-inmate violence is under-reported.

Particularly in male prisons, inmate-on-inmate rape is also a problem.See generally Human Rights Watch, No Escape:Male Rape in U.S. Prisons, athttp://www.hrw.org/reports/200I/prison/report.html (last visited May 3,2004). There is little information on the extent of the problem, in partbecause of the difficulty in getting reliable information about prisonlife, and in part because of the particular stigma that attaches tovictims of rape, particularly homosexual rape. Id. ch. 7.Estimates of the frequency of prison rape range from "rare" to "virtuallyuniversal," and empirical studies have suggested that somewhere betweenthree and twenty percent of male prisoners have been sexually assaultedby fellow inmates. Id. ch. 7 & nn.379-87. As with femaleinmate sexual assault complaints and with prisoner complaints about violence more generally, Human Rights Watch reports that prisonsystems typically lack adequate response mechanisms, and prosecutions forsexual assaults are rare. Id. ch. 8. Conditions may improve inthe wake of the Prison Rape Elimination Act of 2003, Pub.L. No. 108-79,111 Stat. 972, enacted last year to study the problem of prison rape andto provide funding and expertise to address it.

c. Overcrowding

The prevalence of inmate-on-inmate violence is often a result ofovercrowding. In 2002, the federal prison system was operating at 33%over capacity, and on average, states were reported to be operating atbetween one percent over their highest capacity and seventeen percentover their lowest, with only 24 states operating at below 100% of theirhighest operating capacity. Prisoners in 2002, supra, at 7.40Overcrowding is among the most common problems in cases holding prison conditionsunconstitutional. See, e.g., Tillery v. Owens,907 F.2d 418, 430-31 (3d Cir. 1990) (upholding the district court'sinjunction against double-celling at the State Correctional Facility atPittsburgh); Inmates of Allegheny County Jail v. Wecht,874 F.2d 147 (3d Cir. 1989) (affirming an order that the jail be closed),vacated on other grounds, 493 U.S. 948 (1989); Twelve JohnDoes v. District of Columbia, 855 F.2d 874, 874-85 (D.C. Cir. 1988)(upholding the district court's contempt sanction, which was imposed whenthe District of Columbia exceeded limitations that a consent decree hadplaced on the number of inmates that could be housed at the LortonCentral facility); French v. Owens, 777 F.2d 1250 (7th Cir.1983) (affirming portions of the district court's judgment pertaining toovercrowding, double celling, and medical care); Wellman v.Faulkner, 715 F.2d 269, 274 (7th Cir. 1983) (concluding that therecord supported the district court's finding that "[t]he most seriousproblem at the prison is simple overcrowding"); Maynor v. MorganCounty, 147 F. Supp.2d 1185, 1186 (N.D. Ala. 2001) (comparingcounty jail conditions to "the holding units of slave ships during theMiddle Passage of the eighteenth century"); Inmates of SuffolkCounty Jail v. Rufo, 844 F. Supp. 31, 39 (D. Mass. 1994) (Keeton,J.) (modifying a fifteen-year old consent decree regarding double bunking); Rufo,148 F.R.D. 14, 25 (D. Mass. 1993) (Keeton, J.) (holding that modificationwas not yet appropriate), aff'd, 12 F.3d 286 (1st Cir. 1993);Palmigiano v. DiPrete, 737 F. Supp. 1257, 1262 (D.R.I. 1990)(awarding, inter alia, good time credits to inmates to ensureprompt compliance with prison conditions consent decree regardingovercrowding and numerous other conditions of confinement); Duran v.Anaya, 642 F. Supp. 510, 526-27 (D.N.M. 1986) (awarding apreliminary injunction to prevent statewide cuts in corrections staff, asthe cuts were likely to lead to "[d]eath, extreme pain, self-mutilation,. . . [and] increased rates of physical assault, rape, and other formsof violence").

d. Degrading, Unhealthy, and Unsafe Conditions

In addition to overcrowding, courts have in many cases held thatunsanitary, dangerous, or otherwise degrading conditions violate theConstitution. The Court discusses several such cases elsewhere in thisopinion. See also, e.g., Hutto v. Finney,437 U.S. 678, 685-88 (1978) (upholding the district court's order forbiddingconfinement in punitive isolation cells for over 30 days, because incombination with existing conditions, isolation for longer than thatperiod would constitute cruel and unusual punishment); Russell v.Johnson, No. 02-CV-261-JAD, 2003 WL 22208029, at *2-5 (N.D. Miss.May 21, 2003) (holding that numerous conditions in the Mississippi StatePenitentiary's Death Row constituted cruel and unusual punishment, including filth andpest infestation in cells, unregulated temperature, plumbing thatfrequently resulted in an inmate's fecal matter bubbling up in anotherinmate's cell, poor lighting, foul-smelling laundry, and inadequatemental health services); Knop v. Johnson, 667 F. Supp. 467,483-84, 496 (W.D. Mich. 1987) (holding, inter alia, thatforcing inmates "to live in close proximity to their bodily wastes"constituted cruel and unusual punishment); Toussaint v.McCarthy, 597 F. Supp. 1388, 1408-13 (N.D. Cal. 1984) (holding thatconditions at the California State Prisons at Folsom and San Quentinviolated the Constitution in areas including double celling, heating andventilation, plumbing, lighting, noise, electrical systems, fire safety,clothing, laundry, bedding, personal hygiene, sanitation, pests, food,exercise, and access to courts), rev'd in part on othergrounds, 801 F.2d 1080 (9th Cir. 1986); Capps v. Ativeh,559 F. Supp. 894, 911-12, 914-15 (D.C. Or. 1983) (holding that theconditions in Oregon prison facilities were in violation ofconstitutional standards regarding the provision of medical care, theprocessing of milk, and ensuring fire safety at the prison dairy farm).

e. Inadequate Medical and Mental Health Care

Inadequate medical care is also a common problem. See, e.g.,Plata v. Davis, 329 F.3d at 1101, 1103-05 (9th Cir. 2003)(discussing two class actions alleging an inadequate medical care system in California prisons); Cameron v. Tomes,783 F. Supp. 1511, 1525-27 (D. Mass. 1992) (Keeton, J.) (holding that anindividual committed to the Massachusetts Center for the SexuallyDangerous had a constitutional right under the Eighth and FourteenthAmendments to be confined in "an environment where professional judgmentcan be exercised," and issuing an injunction to ensure such conditions),aff'd as modified, 990 F.2d 14, 21-22 (1st Cir. 1993). InCalifornia, after a prisoner gave birth on the floor of a jail, with nomedical assistance, three hours after informing guards that she was inactive labor, and after lack of pregnancy-related medical care in variousCalifornia facilities led to numerous prisoners having deformed orstillborn babies, lawsuits and consent decrees brought improvedconditions. See Ellen M. Barry, Bad Medicine: Health CareInadequacies in Women's Prisons, 16 Crim. Justice 38, 40 (Spr.2001); Susan Stefan, Whose Egg Is It Anyway? Reproductive Rights ofIncarcerated, Institutionalized and Incompetent Women, 13 Nova L.Rev. 405, 442-43 (1989) (citing Yeager v. Smith, No.CV-F-87-493 (E.D. Cal. filed Sept. 2, 1987), Harris v.McCarthy, No. 85-6002-WMB (C.D. Cal. filed Sept. 11, 1985), andJones v. Dyer, No. H-114514-0 (Cal. Super. Ct. filed Feb. 25,1986)).

In 1992, a federal court awarded inmates at thirteen Pennsylvaniacorrectional facilities a preliminary injunction requiring immediateimplementation of control and treatment measures for a tuberculosisepidemic in those facilities. Austin v. Pennsylvania Dept. of Corr., No. 90-7497, 1992 WL277511, at *8 (E.D. Pa. Sept. 29, 1992). Testing done pursuant to thatinjunction revealed that in one jail alone, 400 inmates were infected.Anthony Lewis, Cruel and Unusual, Balt. Evening Sun,Feb. 20, 1995, at 11A.

Prisoners also often receive inadequate mental health treatment, butprison lawsuits have led to improvements in mental health care in manystates, including Alabama, Arizona, California, Florida, Indiana, Iowa,Louisiana, Michigan, New Mexico, New Jersey, New York, Ohio, Texas,Vermont, Washington, and Wisconsin. Ill-Equipped, supra, ch. 6.Not too long ago, a federal court determined that the California prisonsystem's failure to implement "a systematic program for screening andevaluating inmates for mental illness" violated the constitutionalprohibition against cruel and unusual punishment. Coleman v.Wilson, 912 F. Supp. 1282, 1306 (E.D. Cal. 1995). The courtalso held that inadequate training of personnel led to inappropriateapplication of punitive measures (particularly administrative segregationand use of tasers and 37 millimeter guns) to mentally ill inmates, againin violation of constitutional standards. Id. at 1320-23.See also, e.g., D.M. v. Terhune,67 F. Supp.2d 401, 411 (D.N.J. 1999) (approving settlement of a class actionchallenging the adequacy of mental health treatment for inmates);Goff v. Harper, 59 F. Supp.2d 910, 922-24 (S.D. Iowa 1999) (approving, in substantial part, thestate's fourth proposed plan to address mental health violations),remanded on other grounds, 235 F.3d 410 (8th Cir. 2000);Dunn v. Voinovich, Case No. Cl-93-0166 (S.D. Ohio 1995).

f. Special Concerns Regarding Children

Cruel, unusual, and degrading conditions of confinement fall especiallyhard on children, and litigation has been necessary to curb seriousabuses. For example, in Boise, Idaho, a 17-year-old boy in jail forfailing to pay $73 in parking fines was beaten and ultimately murdered byother prisoners over a 14-hour period spent in the cell. Ronald Welch,American Civil Liberties Union, Upsetting Checks and Balances:Congressional Hostility Toward the Courts in Times of Crisis 38,at http://archive.aclu.org/ congress/courtstripping.pdf (Oct.2001). Another teenager had been beaten unconscious by the same inmatesseveral days earlier. Id. In three years, over 6,250 childrenhad been held in the jail, most for minor offenses. Id.Litigation ultimately led to a consent decree addressing these problems.See Yellen v. Ada County, No. 83-1026 (D. Idaho 1985)(consent decree).

In 2000, a federal court approved a settlement agreement against theSouth Dakota Training School at Plankinton, where incarcerated childrenalleged Eighth Amendment violations based on excessive use of force,excessive and unreasonable use of restraints, arbitrary disciplinaryprocedures and policies (including excessive lockdown and isolation), inadequacy of healthcare and education, and privacy violations. Christina A. v.Bloomberg, No. Civ. 00-4036, 2000 WL 33980011, at *l-4, (D.S.D.Feb. 24, 2000).

g. Special Concerns Regarding "Supermax" Facilities

Finally, the various conditions described above may be even more commonin certain types of prison. In particular, as of 2000, more than twentythousand prisoners, roughly two percent of the prison population, werehoused in "supermax" facilities or units, many of which raise seriousconcerns. Human Rights Watch, Out of Sight: Super-Maximum SecurityConfinement in the United States ch. 1, athttp://www.hrw.org/reports/ 2000/supermax (Feb. 2000) [hereinafterOut of Sight]. The National Institute of Corrections defines asupermax prison as: A freestanding facility, or a distinct unit within a freestanding facility, that provides for the management and secure control of inmates who have been officially designated as exhibiting violent or seriously disruptive behavior while incarcerated. Such inmates have been determined to be a threat to safety and security in traditional high-security facilities and their behavior can be controlled only by separation, restricted movement, and limited access to staff and other inmates.Chase Riveland, Nat'l Institute of Corrections, Supermax Prisons:Overview and General Considerations 3, athttp://www.nicic.org/ pubs/1999/014937.pdf (Jan. 1999).

Life in such facilities has been described as follows: Prisoners in these facilities typically spend their waking and sleeping hours locked in small, sometimes windowless, cells sealed with solid steel doors. A few times a week they are let out for showers and solitary exercise in a small, enclosed space. Supermax prisoners have almost no access to educational or recreational activities or other sources of mental stimulation and are usually handcuffed, shackled and escorted by two or three correctional officers every time they leave their cells. Assignment to supermax housing is usually for an indefinite period that may continue for years. Although supermax facilities are ostensibly designed to house incorrigibly violent or dangerous inmates, many of the inmates confined in them do not meet those criteria.Out of Sight, supra, ch. 1; see also AmnestyInternational, Abuses Continue Unabated? Cruel and InhumaneTreatment at Virginia Supermaximum Security Prisons, at http://web.amnesty.org/library/Index/engAMR510652001!0pen (May 2001); HumanRights Watch, Cold Storage: Super-Maximum Security Confinement inIndiana, at http://www.hrw.org/reports/1997/usind (last visitedMarch 22, 2004) (Oct. 1997); Human Rights Watch, Red Onion StatePrison: Super-Maximum Security Confinement in Virginia, athttp://www.hrw.org/reports/1999/redonion (Apr. 1999).

In 1995, officials at the three facilities at Pelican Bay State Prisonin California (a supermax facility) were found to have engaged inextensive and horrific Eighth Amendment violations in the areas of use offorce, medical and mental health care, and general living conditions(particularly cell housing practices). See Madrid v. Gomez,889 F. Supp. 1146, 1280 (N.D. Cal. 1995).41 The Madrid opinion is one of thelongest this Court has ever encountered, so rather than summarizing it,the Court simply recounts a typical incident in the Madridcourt's description of "a conspicuous pattern of excessive force."Id. at 1161. A diminutive, nonviolent, and nonthreatening inmate refused to return his food tray after acorrectional officer insulted him. Id. at 1162. In response,several officers fired two rounds from a 38 millimeter gas gun into thecell; fired a taser gun, hitting the inmate in the chest and stomach; hithim on the head with the butt of the gas gun and knocked him unconscious;stepped on his hands and beat him on the calves with a baton while he wasunconscious; again beat him into unconsciousness when he came to; anddragged him out of the cell face-down, at which point his head wasbleeding and a piece of his scalp had been detached or peeled back.Id.

3. Constitutional Standards, International Legal Standards,and Interpretive Presumptions

Both United States constitutional law and international human rightslaw prohibit many of the conditions described above. These prohibitionshave been enforced through solicitude for prisoners' claims and throughapplication of interpretive presumptions favoring prisoners.

a. The Eighth and Fourteenth Amendments

The Eighth Amendment to the United States Constitution prohibits "crueland unusual punishments." U.S. Const, amend. VIII.42 This prohibitionapplies to the states via the Fourteenth Amendment. See Robinson v.California, 370 U.S. 660, 666 (1962). The Eighth Amendment has long been understood toprohibit physical torture, although definitions of "torture" areobviously contested. See Estelle v. Gamble,429 U.S. 97, 102 (citing Wilkerson v. Utah, 99 U.S. 130, 136 (1879), andIn re Kemmler, 136 U.S. 437, 447 (1890)).43 It does morethan this, however; it ""embodies broad and idealistic concepts ofdignity, civilized standards, humanity, and decency . . ., `againstwhich we must evaluate penal measures." Id. (alteration inoriginal) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8thCir. 1968)). It therefore prohibits punishments that are incompatiblewith "the evolving standards of decency that mark the progress of amaturing society," Trop v. Dulles, 356 U.S. 86, 101(1958),44 or that "involve the unnecessary and wanton infliction ofpain," Gregg v. Georgia, 428 U.S. 153, 173 (1976) (opinion ofStewart, Powell, and Stevens, JJ.).

The Supreme Court has thus held that the authority administering aprison must provide adequate medical care to inmates. Gamble,429 U.S. at 103. Thus, "deliberate indifference to the serious medicalneeds of prisoners" violates "contemporary standards of decency as manifested in modernlegislation," which prohibit the "infliction of . . . unnecessarysuffering" that denial of adequate medical care would entail.Id. at 103-04 & nn.8-9 (describing the confirmations ofthis principle in common law, statutes, and model statutes).

The "deliberate indifference" standard applies more broadly to actionsor omissions that create "a substantial risk of serious harm to aninmate." Farmer v. Brennan, 511 U.S. 825, 828 (1994); seeHelling v. McKinnev, 509 U.S. 25, 32-33 (1993) (holding that thedeliberate indifference standard applies to unhealthy prison conditions,even if they have not yet caused harm); Wilson v. Seiter,501 U.S. 294, 303 (1991) (holding that the "deliberate indifference" standardapplies equally to "inhumane conditions of confinement" and inadequatemedical care); Rhodes v. Chapman, 452 U.S. 337, 347 (1981)("Conditions other than those in Gamble and Hutto [v.Finney, 437 U.S. 678 (1978)], alone or in combination . . .could be cruel and unusual under the contemporary standards of decency werecognized in Gamble." (citation omitted)). As the Supreme Court statedin DeShaney v. Winnebago County Department of Social Services,489 U.S. 189 (1989): [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and well-being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits set on state action set by the Eighth Amendment and the Due Process Clause.Id. at 199-200.

Whatever the nature of the challenged conduct may be, the requiredshowing to make out an Eighth Amendment violation has two elements. Theobjective component asks whether a deprivation suffered by a prisoner issufficiently serious that it denies "the minimal civilized measure oflife's necessities." Wilson, 501 U.S. at 298 (quotingRhodes, 452 U.S. at 347). The second, subjective component askswhether the officials in question "act[ed] with a sufficiently culpablestate of mind." Id. at 298-99 (citing Whitley v.Albers, 475 U.S. 312, 319 (1986)). The official must be guilty notmerely of ordinary negligence, Gamble, 429 U.S. at 105-06, butof "obduracy and wantonness." Wilson, 501 U.S. at 299 (quotingWhitley, 475 U.S. at 319) (internal quotation marks omitted)."[I]n this context wantonness does not have a fixed meaning but must bedetermined `with due regard for differences in the kind of conductagainst which an Eighth Amendment objection is lodgedz.'" Id.at 302 (quoting Whitlev, 475 U.S. at 320). Thus, whereasactions taken by a prison official in certain emergency contexts wouldhave to be taken "maliciously and sadistically for the very purpose ofcausing harm" to violate the Eighth Amendment, failure to provide medical care need only meet the "deliberate indifference" standard.Id. at 302 (quoting Whitley, 475 U.S. at 320-21)(internal quotation marks omitted).

When "deliberate indifference" is the required state of mentalculpability: [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Farmer, 511 U.S. at 837.

b. International Legal Standards, as Incorporated into FederalCommon Law

i. Treaties

International law also places limits on the suffering that can beimposed on prisoners, and requires states to provide a remedy forviolations of prisoners' human rights.45 The United States is a party to treaties that forbid torture and cruel orunusual punishment of any person, prisoner or otherwise, and that requireprovision of adequate remedies for treaty violations. See,e.g., Convention Against Torture, supra; International Covenant onCivil and Political Rights, Dec. 16, 1966, arts. 7, 10, G.A. Res. 2200A(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 51, U.N. Doc. A/6316, 999U.N.T.S. 171, available athttp://www.unhchr.ch/html/menu3/b/a_ccpr.htm [hereinafterICCPR].46 Treaties are as legally binding as federal statutes, and if a treatyand a federal statute conflict, the later in time is controlling.See United States v. Dion, 476 U.S. 734, 738 (1986); TransWorld Airlines, Inc. v. Franklin Mint Corp., 446 U.S. 243, 252(1984); The Chinese Exclusion Case, 130 U.S. 581, 600, 602-03(1889); Whitnev v. Robertson, 124 U.S. 190, 194 (1888);Head Money Cases, 112 U.S. 580, 597-99 (1884). At the sametime, a treaty can only be directly applied in a case if it isself-executing — that is, if its provisions "act directly" on theissues in question, rather than merely "pledge the faith of the UnitedStates to pass acts which shall ratify and confirm them." Foster v.Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), overruled inpart on other grounds. United States v. Percheman, 32 U.S. (7 Pet.)51, 89 (1833). If the treaty is non-self-executing, it "addresses itselfto the political, not the judicial department; and the legislature mustexecute the contract before it can become a rule for the Court."Foster, 27 U.S. (2 Pet.) at 254.

Even when a treaty is not self-executing, courts must strive not tointerpret statutes to conflict with the international obligationsexpressed in such a treaty. See Murray v. SchoonerCharming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("[A]n act ofcongress ought never to be construed to violate the law of nations if any other possible construction remains. . . .");see also MacLeod v. United States, 229 U.S. 416, 434 (1913)("The statute should be construed in the light of the purpose of thegovernment to act within the limitation of the principles ofinternational law, . . . and it should not be assumed that Congressproposed to violate the obligations of this country to other nations.. . ."); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 260-61 (1796)(Iredell, J.) (stating the principle that statutes should not beinterpreted to violate international legal obligations); Restatement(Third) of the Foreign Relations Law of the United States [hereinafter"Restatement"] § 114.47

ii. Customary International Law

There is little doubt that the prohibitions against torture and cruelor unusual punishment and the requirement that remedies be provided forviolations of prisoners' human rights have become customary internationallaw. See Filartiqa v. Pena-Irala, 630 F.2d 876, 881-82 (2d Cir. 1980) (referring to the ban on torture as"part of customary international law"); Restatement, supra,§ 702.48 A norm "crystallizes," or becomes binding as customaryinternational law, when there is sufficient state practice consistentwith it, and when there is opinio-juris — that is,states follow the norm out of a sense of legal obligation. SeeStatute of the International Court of Justice art. 38, 59 Stat.1031, T.S. No. 993 (1945); Restatement, supra, § 102; lanBrownlie, Principles of Public International Law 4-11 (5th ed.1999). Courts can determine the content of customary international lawnot only by looking to state practice, but by examining, as "trustworthyevidence of what the law really is," "the works of jurists andcommentators who by years of labor, research, and experience have madethemselves peculiarly well acquainted with the subjects of which theytreat." The Paguete Habana, 175 U.S. 677, 700 (1900);Restatement (Third) of the Foreign Relations Law of the United States§§ 102-03 (1987). The treaties mentioned above constitute both state practice andevidence of opinio-juris. So do a number of nontreaty humanrights instruments and United Nations General Assembly Resolutions, manyof which the United States has approved. See UniversalDeclaration of Human Rights, Dec. 10, 1948, arts. 2, 5-6, 8, G.A. Res.217A (III), U.N. GAOR, 3d Sess., Pt. 1, at 71, U.N. Doc. A/810; StandardMinimum Rules for the Treatment of Prisoners, Aug. 30, 1955, E.S.C. Res.663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. A/CONF/611[hereinafter "Standard Minimum Rules"] (cited with approval inGamble, 429 U.S. at 103 n.8);49 Code of Conduct for LawEnforcement Officials, Dec. 17, 1979, arts. 1-2, 5-6, G.A. Res. 34/169,U.N. GAOR, 34th Sess., Supp. No. 46, at 186, U.N. Doc. A/34/46[hereinafter "Code of Conduct"] (adopted by consensus, without avote);50 Basic Principles for the Treatment of Prisoners, Dec. 14,1990, Principle 1, G.A. Res. 45/111, U.N. GAOR, 45th Sess., Supp. No.49A, at 199, U.N. Doc. A/45/49; Principles of Medical Ethics Relevant tothe Role of Health Personnel, Particularly Physicians, in the Protectionof Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment orPunishment, Dec. 18, 1992, G.A. Res. 37/194, U.N. GAOR, 37th Sess., Supp.No. 51, U.N. Doc. A/37/194; Body of Principles for the Protection of AllPersons under Any Form of Detention or Imprisonment, Dec. 9, 1998,Principle 1, G.A. Res. 43/173, U.N. GAOR, 43d Sess., Supp. No. 49, U.N.Doc. A/43/49 [hereinafter "Body of Principles"] (approved by consensus,without a vote);51 id. Principle 6 & n.* (prohibitingtorture and "cruel, inhuman or degrading treatment," and requiringinterpretation of the latter phrase "so as to extend the widest possibleprotection against abuses, whether physical or mental, including theholding of a detained or imprisoned person in conditions which deprivehim, temporarily or permanently, of the use of any of his natural senses,such as sight or hearing, or of his awareness of place and the passing oftime").

United Nations member states are now required to report to theSecretary General on implementation of the Standard Minimum Rules,see Suzanne M. Bernard, An Eye for an Eye: The CurrentStatus of International Law on the Humane Treatment of Prisoners, 25Rutgers L.J. 759, 774 & n.91 (1994) (citing Committee on CrimePrevention and Control, Procedures for the Effective Implementation ofthe Standard Minimum Rules for the Treatment of Prisoners, May 25, 1984, E.S.C. Res. 1984/47, U.N. ESCOR, 76thSess., Supp. No. 1, at 29, U.N. Doc. E/1984/84), and their compliancewith that mandate constitutes both relevant practice and evidence ofopinio juris. Even as of the Secretary General's first inquiryin 1984, forty states reported that they had implemented the rules,eleven reported partial implementation, and only one reported noimplementation. Id. at 774 (citing Implementation of theUnited Nations Standard Minimum Rules for the Treatment of Prisoners,Report of the Secretary General 6-7, 12, May 31, 1983, U.N. Doc.A/CONF. 121/15).52 As early as 1980, 68 national constitutionsexpressly afforded prisoners the right to be treated with dignity andhumanity. See Bernard, supra, at 788 & n.175(citing M. Cherif Bassiouni, The Protection of Human Rights in theCriminal Process Under International Instruments and NationalConstitutions 91 & chart 5 (1981).

The reports and proposals issued from international bodies convened todiscuss the problems of torture and cruel or unusual punishment providefurther evidence of customary law. For example, the United Nations Congress on the Prevention of Crime andthe Treatment of Offenders convenes every five years, has issued numerousproposals to address these problems (including the Standard MinimumRules), and has unanimously recognized that the Standard Minimum Rulesshould apply to all prisoners in all states. See Bernard,supra, at 780 & nn.130-34.

Regional conventions and treaties mirror international developments,and further confirm the crystallization of customary internationallaw.53 The same can be said of a number of model regionalstandards.54

The Court also looks to the activities of nongovernmental actors. Theyplay an increasingly important role in international standard setting,and their activities provide evidence of emerging customary norms,although such activities are less relevant than those of state actors.Organizations such as Amnesty International, the Commission of theChurches on International Affairs of the World Council of Churches, HumanRights Watch, the International Association of Educators for World Peace,the International Committee of the Red Cross, the International Councilfor Adult Education, the International Federation of Human Rights, theInternational Prisoners' Aid Association, and the World Council ofIndigenous Peoples have consistently advocated for the right of prisonersto be free from torture and cruel or unusual punishment, and to haveremedies for violations of that right, and have strongly influenced thedevelopment of international standards. See id. at 781 &nn.137-41.

Like other human rights obligations, the prohibition against tortureand cruel or unusual punishment and the requirement that remedies beprovided for violations are obligations erga omnes, in which,"[i]n view of the importance of the rights involved, all States can beheld to have an interest." Barcelona Traction, Light & Power Co.,(Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). In addition, as juscogens norms, these obligations are "nonderogable and peremptory,enjoy the highest status within customary international law, are bindingon all nations, and can not be preempted by treaty." United Statesv. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (citingCommittee of United States Citizens Living in Nicaragua v.Reagan, 859 F.2d 929, 939-40 (D.C. Cir. 1988), and Siderman de Blake v. Republic ofArgentina, 965 F.2d 699, 717 (9th Cir. 1992)).55

Customary international law is also binding on federal courts, as partof federal common law. As the United States Supreme Court observed longago: "International law is part of our law, and must be ascertained bythe courts. . . .[W]here there is no treaty, and no controllingexecutive or legislative act or judicial decision, resort must be had tothe customs and usages of civilized nations. . . ." PagueteHabana, 175 U.S. at 700;56 see also First Nat'l City Bankv. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 623 (1983)("[T]he principles governing this case are common to both internationallaw and federal common law, which in these circumstances is necessarilyinformed both by international law principles and by articulatedcongressional policies); Worcester v. Georgia, 31 U.S. (6 Pet.)515, passim (1832) (grounding its decision in the law ofnations); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,passim (1831) (same); Johnson v. M'Intosh, 21 U.S. (8Wheat.) 543, passim (1823) (same); United States v.Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820) (determining and applying the "law of nations"regarding piracy); The Nereide, 13 U.S. (9 Cranch) 388, 423(1815) ("Till [a contrary federal statute] be passed, the Court is boundby the law of nations which is a part of the law of the land.");Ware, 3 U.S. (3 Dall.) at 281 (Wilson, J.) ("When the UnitedStates declared their independence, they were bound to receive the law ofnations, in its modern state of purity and refinement.");57Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 161 (1795) (Iredell,J.) (stating that the law of nations is part of federal commonlaw).58 As discussed above with regard to treaties, venerable precedent makesclear that "an act of Congress ought never to be construed to violate thelaw of nations if any other possible construction remains." CharmingBetsy, 6 U.S. (2 Cranch) at 118; McCulloch v. Sociedad Nacionalde Marineros de Honduras, 372 U.S. 10, 21-22 (1963) (applying thecanon in interpreting the National Labor Relations Act,29 U.S.C. § 151-169); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (notingthe canon's applicability in interpreting federal shipping laws);Macleod, 229 U.S. at 434; Ware, 3 U.S. (3 Dall.) at 279 (Iredell, J.); Restatement,supra, § 114.59

The United States has at times demonstrated a certain unwillingness topermit international law to decide domestic disputes. See AnneBayefsky & Joan Fitzpatrick, International Human Rights Law inUnited States Courts: A Comparative Perspective, 14 Mich. J. Int'lL. 1, 1 (1992). In particular, American courts have often been reluctantto apply customary international law, in spite of binding Supreme Courtprecedent. See id. at 27. This is particularlyremarkable, given how recently the Supreme Court has reaffirmed theimportance of international law in defining the liberties protected bythe Bill of Rights. See Lawrence v. Texas, 539 U.S. 558, 123 So.Ct. 2472, 2481, 2483 (2003) (discussing the relevance of laws andpractices of other nations, international treaties, and decisions of theEuropean Court of Human Rights, in determining what limits the DueProcess Clause of the Fourteenth Amendment places on states' power toregulate private sexual conduct between consenting adults); Atkins v.Virginia, 536 U.S. 304, 316 n.21 (2002) (treating evidence ofthe world community's overwhelming disapproval of executing mentally retarded criminals as probativein determining whether the practice violates the prohibition againstcruel and unusual punishment); Thompson v. Oklahoma,487 U.S. 815, 830-31 & n.31 (1988) (giving similar consideration to worldopinion in determining whether the Constitution would permit execution ofcriminals under the age of 16).60 Needless to say, until Congress,the Supreme Court, or a new constitutional amendment commands otherwise,this Court will afford international law the status it has always enjoyedin federal law. The Court need not at this juncture resolve difficult questionsregarding: which of the relevant treaties are self-executing; whether andto what extent the norms expressed therein or embodied in customaryinternational law are more protective of prisoners' rights than theEighth Amendment; what effect United States reservations to the relevanttreaties, expressing an understanding that they require no more than theEighth Amendment, might have;61 and the extent to which a customarynorm with jus cogens status can become binding even on a statethat persistently objects to it.62 Suffice it to say thatinternational law creates an independent source of obligation to provideto prisoners at least those protections that the Eighth Amendmentprovides. Regardless of whether and to what extent treaties or customarylaw can provide an implied cause of action,63 courts must approach prisoner cases under domesticlaw with an appreciation for the United States' internationalobligations.

c. Interpretive Presumptions

International law and the federal Constitution guide adjudication ofprisoner cases in two ways. First, each requires that inmate complaintsbe given serious consideration. As a member of the internationalcommunity and as a nation, the United States is committed to eradicatingtorture and cruel, inhumane, and degrading punishment. Second, Courtsmust strive to interpret statutes and regulations and to apply federalcommon law in a way that vindicates our human rights commitments.

Just as the Charming Betsy canon helps domestic law realizeinternational obligations, so the constitutional avoidance canon, whichrequires courts to strive to interpret statutes to avoid seriousconstitutional questions, helps keep government within lawful boundswithout necessitating frequent battles between the judiciary and thepolitical branches. See, e.g., Ashwander v. TennesseeValley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J.,concurring).64 Similarly, "when a particular interpretation of astatute invokes the outer limits of Congress' power, [courts] expect a clear indication that Congress intended that result."INS v. St. Cvr, 533 U.S. 289, 299 (2001) (citing Edward J.DeBartolo Corp. v. Florida Gulf Coast Bldq. & Constr. TradesCouncil, 485 U.S. 568, 575 (1988)). As a general matter, "[i]ntraditionally sensitive areas, . . . the requirement of clearstatement assures that the legislature has in fact faced, and intended tobring into issue, the critical matters involved in the judicialdecision." Gregory v. Ashcroft, 501 U.S. 452, 461 (1991)(quoting United States v. Bass, 404 U.S. 336, 349 (1971)).

Courts have also consistently interpreted statutes to protect "discreteand insular minorities,"65 and there can be little doubt thatprisoners are as vulnerable to oppression by the political majority asany group in society. See Krent, supra, at 1068-69. Interpretive canons protectimmigrants, see, e.g., INS v. Cardoza-Fonseca,480 U.S. 421, 449 (1987) (citing authority for "the longstanding principle ofconstruing lingering ambiguities in deportation statutes in favor of thealien"), and Indian tribes, see, e.g., Montana v. Blackfeet Tribe ofIndians, 471 U.S. 759, 766 (1985) ("[S]tatutes are to be construedliberally in favor of the Indians. . . ."); Winter v. UnitedStates, 207 U.S. 564, 576(1908) ("[A]mbiguities occurring [intreaties and agreements with Indian tribes] will be resolved from thestandpoint of the Indians."). A number of cases have effected the courts'traditional role as protectors of minority rights by interpretingstatutes in light of the social reality surrounding marginalized groups.See Steelworkers v. Weber, 443 U.S. 193, 201-02 (1979)(interpreting Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, to permit private race-conscious affirmative actionprograms favoring racial minorities, even though a "literalconstruction" would prohibit such programs); see also Johnson v.Transportation Agency, 480 U.S. 616, 641-42 (1987) (applying the Weberanalysis to a state agency's affirmative action policies favoring women);California Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,290-92 (1987) (holding that Title VII did not prohibit or preempt a statestatute that required reinstatement of workers returning from pregnancydisability leave, even though males returning from disability leave hadno similar right); cf. Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (holding that a public law school's considerationof race in its admissions program did not violate the Equal ProtectionClause of the Fourteenth Amendment); Bob Jones Univ. v.United States, 461 U.S. 574, 592-96 (1983) (holding that ageneral tax exemption for charitable institutions should not beinterpreted to apply to a private university with racially discriminatorypolicies and admissions standards, because such an interpretation wouldbe inconsistent with the nation's constitutional and political commitmentto ending racial discrimination). Similarly, the presumption in favor ofjudicial review of governmental action, Bowen v. Michigan Academy ofFamily Physicians, 476 U.S. 667, 670 (1986), superceded onother qrounds, 42 U.S.C. § 1395ff(b), and the requirement thatcourts read generously the complaints of pro se litigants (who in thefederal system are most frequently poor people, prisoners challengingtheir sentences or conditions of confinement, or both), Haines v.Kerner, 404 U.S. 519, 520 (1972); United States v.Morgan, 346 U.S. 502, 505 & n.3 (1954),66 ensure thatthe rights of prisoners and other marginalized citizens are vindicated.

Thus, although courts must accord due deference to prison officials andpolicies, both in deciding whether to intervene in prison management andin determining the appropriate scope and character of any relief, see, e.g. Turner v. Saflev,482 U.S. 78, 84-85 (1987), they have also have a duty to apply to prisoners'claims interpretive presumptions that protect basic human rights.

4. Judicial Vindication of Prisoners' Rights During the PastHalf Century

The federal government, intergovernmental institutions, and variousnongovernmental organizations have determined that many prisoners in thiscountry live under cruel, inhumane, or degrading conditions, and that inmany cases these conditions violate fundamental human rights commitmentsin our Constitution and in international law. Case law confirms thatthese reports accurately describe reality, without exaggeration, althoughthere is evidence that things are improving. In 1984, 24.3 percent ofstate prison facilities and 15.1 percent of jails were subject to courtorders, and in 2000 the figures were 22.7 percent and 13.4 percent,respectively. Charles F. Sabel & William H. Simon,Destabilization Rights: How Public Law Litigation Succeeds, 117Harv. L. Rev. 1015, 1038 n.67 (2004) (citing Margo Schlanger, InmateLitigation After the Deluge: Part II, Court Order Cases 9, 19 (July26, 2002) (unpublished manuscript)).67 As of 1995, 48 of the country's 53 jurisdictions68 had had at least onefacility declared unconstitutional by the federal courts,69 and invirtually every case the courts had made significant improvements.Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making andthe Modern State: How the Courts Reformed America's Prisons 40 &nn.83-84 (1999). Federal decisions have addressed virtually every aspectof the prison systems in Alabama, Alaska, Arkansas, Delaware, Mississippi, New Mexico, RhodeIsland, South Carolina, Tennessee, and Texas. Id. at 39-40& nn. 77, 88.70 Comprehensive orders have issued regardingnumerous facilities in Georgia71 and Louisiana,72 and have issuedregarding overcrowding and other conditions in the entire Floridasystem73 and almost all of the North Carolina system.74 Going back at least as far as the late 1960s, courts have been activein ensuring that prisons meet Eighth Amendment standards. Feeley &Rubin, supra, at 39; Sabel & Simon, supra, at1034-35. The role courts have played in this arena resembles that playedin other "public law" cases involving schools, mental health facilities,housing, and law enforcement, famously described by Professor AbramChayes. See generally Abram Chayes, The Role of the Judgein Public Law Litigation, 89 Harv. L. Rev. 1281 (1976); seealso In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007,1010-12 (1st Cir. 1988) (citing Professor Chayes's article extensively indescribing the transformation of federal judges' role under the FederalRules of Civil Procedure from a focus on settling disputes towardincreased "judicial initiative and governance" in ever "larger and moreintricate" litigation).

Although courts have sometimes had to maintain long-term oversight ofprison systems that continue to violate the Constitution, see, e.g.,Ruiz v. Johnson, 154 F. Supp.2d at 1001,75 much conditions ofconfinement litigation has in fact led to substantial improvements. As Professors Sabel and Simondescribe: Especially in the harshest systems in the South, intervention has led to the elimination of the routine or authorized use of torture; to the abandonment of convict-leasing, inmate "trusties," and other managerial structures with high potential for abuse; to personnel, training, and supervisory changes that professionalized management; and to modest improvement, at least, in the physical amenity of confinement. Although many of the institutions are still foul and dangerous places, they are better than they used to be in many ways.Sabel & Simon, supra, at 1035 (citing Feeley &Rubin, supra, at 73, 93-95).

B. The Nature of Kane's Action

Having described the legal standards and demonstrated that solicitudefor prisoners suits is both legally required and socially beneficial, theCourt must now determine which of Kane's claims it may properly consider,and under what legal theories. The Court begins with the claim that theWarden has violated BOP regulations, with the BOP's acquiescence. Thereis surprisingly little case law on whether and to what extent federalprisoners can obtain relief in a judicial forum for violations of BOPregulations. As the Court explains, the case law governing42 U.S.C. § 1983 relief for violations of state prison regulations is notparticularly on point.

1. Nonapplicability of Sandin v. Conner toFederal Prisoners In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Courtheld that a state prisoner could not succeed in a Section 1983 suitalleging violation of state prison regulations, unless the violation ledto restraint that "imposes atypical and significant hardship on theinmate in relation to the ordinary incidents of prison life."Id. at 484. Thus, although state prison regulations mightcreate a liberty interest under the Due Process Clause of the FourteenthAmendment, that interest only consisted in freedom from such restraint.Under this "atypical and significant hardship" standard, the SupremeCourt concluded that on the record presented, solitary confinementimposed in violation of state prison regulations did not violate theprisoner's rights to due process. Id. at 486.

Dr. Stuart Grassian of the Harvard Medical School has documented howsolitary confinement commonly leads to symptoms such as "perceptualdistortions, hallucinations, hyperreponsivity to external stimuli,aggressive fantasies, overt paranoia, inability to concentrate, andproblems with impulse control," a series of symptoms that has beenclassified as "Reduced Environmental Stimulation," or "RES."Madrid, 889 F. Supp. at 1230 (citing the consistent reportsfound in the literature authored by Dr. Grassian and other experts);also Davenport v. DeRobertis, 844 F.2d 1310, 1313, 1316 (7thCir. 1988) (citing an article authored by Dr. Grassian as an example ofthe substantial literature concerning the ill effects of solitaryconfinement). If the Due Process Clause gives a federal court only limited powerto interfere with a state's unlawful engagement in this sort ofpsychological torture, then it might appear that at best, Kane's claimsregarding violations of BOP regulations are subsumed in hisconstitutional claims.76

Yet Sandin was a case about what rights state prisoners haveunder the Due Process Clause of the Fourteenth Amendment; it did notaddress what rights federal prisoners have. Federal courts lack power toissue injunctions forcing a state or its agents to comply with state law,except to the extent that those actions also violate the United StatesConstitution or other federal law. Pennhurst State Sch. & Hosp.v. Halderman, 465 U.S. 89, 106 (1984).77 Thus, a case involvinga state prison system's violation of its own regulations simply would notpresent a federal question if the violations fell short of theSandin standard. One hopes that the prisoner could seek aninjunction in some manner in state courts, but the United StatesConstitution has little to say on the matter.78 It is conceivable that the United States government could create asystem in which federal prisoners could only challenge those violationsof prison regulations that rise to the level of constitutionalviolations. The Court need not express any opinion on whether and how theUnited States could create such a system, however, because to its credit,it has not in fact done so. Any number of federal statutes andregulations apply to treatment of prisoners, including BOP regulations,so any court applying Sandin to federal prisoners would have tohold that there is no way for prisoners to bring federal court challengesagainst violations of federal law by federal prison officials. Thatsimply is not the law.

In two habeas corpus cases, the Supreme Court has passed on prisoners'challenges to BOP regulations and policies without anywhere suggestingthat Sandin might apply to such claims. See Lopez v.Davis, 531 U.S. 230 (2001); Reno v. Koray, 515 U.S. 50(1995). Of course, both cases involved claims by prisoners that the BOPwas required to release them earlier than planned, so they were properlycognizable in habeas, and it is well settled that habeas will lie tochallenge detention in violation of a federal statute, regardless ofwhether any constitutional violation is involved. See, e.g., Davis v. United States,417 U.S. 333, 344-45 (1974) (holding as much for federal habeas corpusrelief under 28 U.S.C. § 2255).

More to the point, however, it is clear that federal statutes can applyto both federal and state prisoners, and that even state prisoners canraise conditions of confinement claims based on such statutes. InPennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206(1998), the Supreme Court unanimously held that Title II of the Americanswith Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131-12134, whichprohibits a "public entity" from discriminating against a "qualifiedindividual with a disability" on account of that disability,42 U.S.C. § 12132, covers inmates in state prisons. Yeskey, 524 U.S.at 213.79 The Supreme Court held that even if the rule requiring aclear statement of congressional intent before interpreting an ambiguousstatute "to alter the usual constitutional balance between the States andthe Federal Government" were applicable, see Gregory, 501 U.S.at 460-61, the ADA was not in fact ambiguous. Yeskey, 524 U.S.at 208-09.

The Supreme Court thus permitted a state inmate to challenge stateprison conditions that violated federal law, but did not violate thefederal Constitution. Nowhere does the Supreme Court suggest that only ADA violations that meet Sandin's"atypical and significant hardship" standard are applicable. Given thatstate prison officials receive greater solicitude in federal law than dofederal prison officials, see Turner, 482 U.S. at84-85, Yeskey necessarily applies to federal prisoners as well.Accord, e.g., Peddle v. Sawyer, 64 F. Supp.2d 12,18-19 (D. Conn. 1999) (permitting a federal inmate to sue prisonofficials under the Violence Against Women Act, 42 U.S.C. § 13981);cf. Davis, 417 U.S. 344-45. Thus, there is no reasonto believe that Sandin had any impact on the viability ofUnited States v. Muniz, 374 U.S. 150 (1963), which allowed alawsuit by federal prisoners under the Federal Tort Claims Act,28 U.S.C. § 1346(b), 2401(b), 2671-2680, against negligent federal employeesfor injuries they caused.80 Although it may be uncontroversial that federal statutes can provideinmates with a cause of action, there is some dispute as to whether andunder what circumstances a prisoner can sue to challenge violations ofBOP regulations. A few principles are worth noting at the outset. First,as described above, there are the presumptions in favor of vindicatingthe rights of prisoners, as defined under the Constitution and underinternational law, and in favor of providing remedies for violations ofsuch rights. Courts also must err on the side of protecting prisoners and othermembers of marginal groups when interpreting statutes. Moreover, federallaw has a strong presumption that agencies must conform their conduct totheir own regulations. See Morton v. Ruiz,415 U.S. 199, 235 (1974) ("Where the rights of individuals are affected, it isincumbent upon agencies to follow their own procedures. This is so evenwhere the internal procedures are more rigorous than would berequired."); Maine v. Thomas, 874 F.2d 883, 890-91 (1st Cir.1989) (quoting this passage from Morton, 415 U.S. at 235, andcollecting consistent cases); Caldwell v. Miller, 790 F.2d 589,610 (7th Cir. 1986) ("An inmate, too, has the right to expect prisonofficials to follow [BOP] policies and regulations); Anderson v.Smith, 697 F.2d 239, 240 (8th Cir. 1983) (per curiam) (similar).There is also a strong presumption in favor of judicial review of agencyaction. See Bowen, 476 U.S. at 670.

The Court must therefore determine whether federal law rebuts thepresumptions favoring the recognition of a cause of action to challengeviolations of BOP regulations. If there is no bar to review, the Courtmust then determine the nature of the available causes of action.

2. Applicability of the Administrative Procedure Act

Kane correctly points to provisions of the Administrative Procedure Actthat govern judicial review of agency action. See 5 U.S.C. § 701-706. Although the APA is not an independentgrant of subject matter jurisdiction, Califano v. Sanders,430 U.S. 99, 105 (1977), 28 U.S.C. § 1331 provides subject matterjurisdiction for a review proceeding under the APA. See id.;Conservation Law Foundation, Inc. v. Busey, 79 F.3d 1250, 1261(1st Cir. 1996).81 Unless a federal statute specifies otherwise, orthe action is "committed to agency discretion by law," a "final action"of any federal agency is subject to judicial review.5 U.S.C. § 701-702, 704; see Japan Whaling Ass'n v. American CetaceanSoc'v, 478 U.S. 221, 230 n.4 (1986). Thus, if the BOP is an"agency," and the other relevant requirements are met, Kane can seekreview of the BOP's actions under the APA.

The APA defines "agency" as "each authority of the Government of theUnited States, whether or not it is within or subject to review byanother agency." 5 U.S.C. § 701(b)(1). It then provides a list ofexceptions, none of which applies to the BOP. Id. The fact thatCongress specifically excepted "military authority exercised in the fieldin time of war or in occupied territory" suggests that had Congresswished to except prison officials, who like soldiers haveresponsibilities that include using violence to promote security, itwould have done so explicitly. Id. Similarly, some weightshould be given to the fact that Congress has precluded review of BOP decisions under theAPA in some areas, but not others, suggesting a default rule of APAapplicability. See, e.g., 18 U.S.C. § 3625 (precludingjudicial review of the BOP's substantive decisions regarding granting ordenial of early release). Admittedly, the views of later Congresses arefar from determinative of what the original statute means, but they areentitled to some respect, particularly as regards "quasi-constitutional"statutes like the APA. Cf. Califano, 430 U.S. at105-06 (interpreting the APA in light of a later-passed statute).

There is thus nothing in the APA to suggest that the BOP is not an"agency" subject to the Act, and the Supreme Court apparently considersthe BOP to be governed by the APA. See Lopez, 531 U.S. at 240;Koray, 515 U.S. at 61. Even before these decisions came down,virtually every circuit that had resolved the question had held that theAPA applied to the BOP. Compare Clardy v. Levi, 545 F.2d 1241,1244-46 (9th Cir. 1976) (holding that the APA does not apply to theBOP),82 with White v. Henman, 977 F.2d 292, 293 (7th Cir.1992) (holding that it does), and Ramer v. Saxbe, 522 F.2d 695,697 (D.C. Cir. 1975) (same), with Veneqas v. Henman,126 F.3d 760, 763 (5th Cir. 1997) (assuming that it does), and with Alien v.Avtch, 535 F.2d 817, 822 n.23 (3d Cir. 1976) (acknowledging but not answering the questionwhether it applies),83 and Wolfish v. Levi, 573 F.2d 118,125 (2d Cir. 1978) (same), rev'd on other grounds sub nom. Bell v.Wolfish, 441 U.S. 520; see also Bell, 441 U.S.at 529 n.ll (specifically noting that the Second Circuit's holdings underthe APA were not before the Supreme Court).

Moreover, the Yeskey Court's interpretation of the ADA isinstructive. It held that the term "public entity," defined to include"any department, agency, special purpose district, or otherinstrumentality of a State or States or local government,"42 U.S.C. § 12131(1)(B), unambiguously included prisons. Yeskey, 524U.S. at 210. If the ADA'S language does not have sufficient "play in thejoints" to avoid applying it to state prisons, this Court cannot see howthe APA is any different. In any case, to the extent the APA is"ambiguous" on the point, all of the interpretive presumptions favoringprisoners militate in favor of applying the statute to the BOP.

None of the statutes governing the BOP appears to exempt its decisionsregarding medical care from judicial review. 18 U.S.C. § 3625 forbidsapplication of the APA to "the making of any determination, decision, ororder" under 18 U.S.C. § 3621-3626, but none of those statutesapplies here. Given that a decision to deny an inmate a course of treatment is necessarily a "finalaction," at least once administrative remedies have been exhausted, theonly remaining bar to review is the possibility that decisions regardingmedical care are "committed to agency discretion by law," and are thusnot subject to judicial review under the APA. See5 U.S.C. § 701(a)(2); Wolfish, 573 F.2d at 125 (suggesting that BOPimplementation of governing statutes may fall under this provision). Thisis a "very narrow exception," however, applicable in those "rareinstances where "statutes are drawn in such broad terms that in a givencase there is no law to apply.'" Citizens to Preserve Overton Park,Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 79-752,at 26 (1945)), overruled on other grounds byCalifano, 430 U.S. at 105. For example, unless Congress has set"substantive priorities" or "otherwise circumscrib[ed] an agency's powerto discriminate among issues or cases," its "decision not to takeenforcement action should be presumed to be immune from judicial reviewunder § 701(a)(2)." Heckler v. Chanev, 470 U.S. 821,832-33 (1985). Suffice it to say that this exception to the presumptionin favor of judicial review does not apply to a decision aboutdistribution of benefits among individuals under an agency's charge. Insuch cases, the agency is acting as an administrator, not as aprosecutor.

Having determined that the APA applies, the Court assumes for purposesof decision that the BOP Practice Guidelines create substantive rights. Some courts have held that because BOP programstatements are internal agency guidelines, not "adopted in one of theways the APA prescribes," they do not create substantive rights.See, e.g., Miller v. Henman, 804 F.2d 421, 426 (7th Cir. 1986))(internal quotation marks omitted). The proper characterization andstatus of the BOP Practice Guidelines has not been made clearto the Court, however, and because "the line between a legislative orsubstantive rule and an interpretive one is . . . far from clear,"Warder v. Shalala, 149 F.3d 73, 79 (1st Cir. 1998), ultimateresolution of the legal status of the BOP Practice Guidelinesis inappropriate in the absence of briefing on either side, particularlywhen such resolution is not necessary to the Court's decision. For anexcellent discussion of the problematic distinction between legislativeand interpretive rules, see Monahan v. Winn, 276 F. Supp.2d 196,212-15 (D. Mass. 2003) (Gertner, J.).

The Court also assumes for purposes of decision that, in this case atleast, the Warden is an appropriate named defendant under the APA. Thistoo is an important question that should not be resolved without thebenefit of briefing on both sides, and it would be a waste of theparties' time at this point to request such briefing.

3. Inappropriateness of Mandamus Relief Because the APA applies, 28 U.S.C. § 1361, which gives the districtcourts original jurisdiction over mandamus actions to compel federalofficers and employees to perform duties owed to a plaintiff, does notapply. Mandamus most commonly lies to compel performance of "a clearnondiscretionary duty," and is an extraordinary remedy that typicallyshould not be invoked if other avenues of relief exist, as they do here.See, e.g., Heckler v. Ringer, 466 U.S. 602, 616 (1984)(exemplifying this view); 4 Kenneth C. Davis, Administrative LawTreatise, §§ 23.7, at 155, § 23.12, at 169 (1983) (discussingthe "orthodox" view of mandamus and the broader view that some SupremeCourt cases have taken). But see, e.g. Work v. United States ex.rel. Rives, 267 U.S. 175, 252 (1925) (taking a broader view ofmandamus in holding that it will lie to compel federal officers to staywithin the boundaries of their discretion). See generally AnnWoolhandler, Patterns of Official Immunity and Accountability,37 Case W. Res. L. Rev. 396, 432-58 (1987) (arguing that Supreme Courtdecisions regarding remedies against governmental officials historicallyadopted one of two approaches, with the "legality" model, which focuseson whether an unlawful act has harmed a citizen, dominating in casesinvolving injunctive relief, and the "discretion" model, which focuses onthe extent to which potential liability will hamper officials'decisionmaking process, dominating in cases involving damages relief).Two opinions regarding mandamus relief in a Puerto Rico death penalty case make it clear that the First Circuit ascribes to the"orthodox" view of mandamus, even when money damages are not involved.See In re Sterlinq-Suarez, 323 F.3d 1, 1-2 (2003); In reSterling-Suarez, 306 F.3d 1170, 1172 (1st Cir. 2003).

C. Treatment of Kane's Constitutional Claim and HabeasPetition

Under Bivens v. Six Unknown Named Agents of Fed. Bur. ofNarcotics, 403 U.S. 388 (1971), an individual aggrieved by a federalofficial's violation of his constitutional rights can bring an action formonetary relief. Id. at 397. One can also seek injunctiverelief via a Bivens action. See Farmer, 511 U.S. at851 (remanding a prisoner's Bivens action in which the prisonersought both damages and injunctive relief). A prisoner's claim thatprison officials have withheld appropriate medical care, in violation ofthe Constitution, is certainly cognizable as a Bivens action,even if other remedies exist under federal law. See Carlson v.Green, 446 U.S. 14, 16 & n.l, 20 (1980) (upholding aBivens claim for inadequate medical care brought by aprisoner's estate, even though the claim could also have been broughtunder the Federal Tort Claims Act).

Kane has not filed his suit as a civil rights action underBivens or as an ordinary civil suit under federal law, however.Rather, he has filed it as a petition for habeas corpus under 28 U.S.C. § 2241.84 Although a habeas corpus petition is theappropriate means to challenge the "fact or duration" of incarceration,actions challenging the conditions of confinement reside more in theheartland of civil actions under 42 U.S.C. § 1983 (for stateprisoners), Bivens, 403 U.S. 388 (for federal prisoners), orsome other non-habeas doctrine or statute. See Heck v.Humphrey, 512 U.S. 477, 481-83 (1994) (citing Preiser v.Rodriquez, 411 U.S. 475, 488-90 (1973)). Various courts in thisCircuit and elsewhere have dismissed habeas petitions (or individualclaims contained therein) that challenged conditions of confinementrather than the fact or duration of confinement. See, e.g.,Melham v. Farguharson, Civ. A. No. 03-10721-DPW, 2003 WL21397987, at *1 n.l (D. Mass. June 17, 2003) (Woodlock, J.) (declining toaddress a habeas petitioner's claims insofar as they related toconditions of confinement); Do Vale v. I.N.S., Nos. 01-216-ML,01-507-ML, 2002 WL 1455347, at *9 (D.R.I. June 25, 2002) (dismissing suchclaims); Barnes v. I.N.S., Civ. No. 01-48-PC, 2001 WL 1006077,at *7 (D. Me. Aug. 30, 2001) (recommending a similar disposition); Kamara v.Farguharson, 2 F. Supp.2d 81, 89 (D. Mass. 1998) (Saris, J.)(dismissing such claims). The Court must now determine whether habeaswill lie for Kane's claims, and if not, whether it is appropriate todismiss his constitutional claim solely on grounds of inartful pleading.

Before analyzing the intersection between habeas corpus and civilrights actions, the Court notes that many of the relevant cases involvestate prisoners, not federal ones. In this context, it is perfectlyreasonable to apply Section 1983 cases to federal prisoners withBivens claims, because, if anything, the rights of prisonersgive way to governmental prerogatives more in cases involving stateprison systems than in those involving the federal system, not less.Cf. Turner, 482 U.S. at 84-85 (noting that courts shouldexercise restraint in second-guessing judgments of prison systemofficials, and that "[w]here a state penal system is involved, federalcourts have . . . additional reason to accord deference to theappropriate prison authorities"). There are no relevant differencesbetween Section 1983 actions and Bivens actions, or betweenprovisions governing habeas relief with regard to state and federalprisoners, that would suggest that the Section 1983 cases should notapply to this case. Moreover, the prohibition against cruel and unusualpunishment applies to both federal and state governments through theEighth and Fourteenth Amendments, respectively. There is little difference in what our legal system's conceptions of dueprocess and equal protection concepts demand of the federal and stategovernments, see Boiling v. Sharpe, 347 U.S. 497 (1954), so itis difficult to see why the courthouse doors should be more open to stateprisoners than federal.

Looking at both state and federal prisoner cases, there are manyindications that habeas will in fact lie for certain conditions ofconfinement claims. The Supreme Court has left open the possibility thata state prisoner's conditions of confinement claim could be brought as ahabeas corpus action, rather than an action under 42 U.S.C. § 1983.See Preiser, 411 U.S. at 499-500 (citing Note,Developments in the Law — Habeas Corpus, 83 Harv. L. Rev.1038, 1084 (1970)); Bell, 441 U.S. at 526 n.6; Dickersonv. Walsh, 750 F.2d 150, 153 n.5 (1st Cir. 1984) (citing Johnsonv. Avery, 393 U.S. 483 (1969), Bradshaw v. Carlson,682 F.2d 1050 (3d Cir. 1981), Cardaropoli v. Norton, 523 F.2d 990(2d Cir. 1975), and Mead v. Parker, 464 F.2d 1108 (9th Cir.1972), as examples of cases where a prisoner was permitted to challengeconditions of confinement through a habeas petition).

The First Circuit has stated in dicta that certain kinds of conditionsof confinement actions can be brought as habeas petitions. InBrennan v. Cunningham, 813 F.2d 1 (1st Cir. 1987), the courtheld that a prisoner's claim for reinstatement in a work release programcould proceed as a habeas petition. Id. at 4-5. The court "[did] not agree that Preiser wouldmandate that the reinstatement claim be brought as a § 1983 action[,]even if we were to accept appellant's characterization of the claim as achallenge to the conditions of confinement[, because in]Preiser, the Court specifically left open the possibility thata challenge to prison conditions, cognizable under § 1983, might alsobe brought as a habeas corpus claim." Id. at 4. The courtrested its holding primarily on the ways in which the reinstatement claimresembled a challenge to the fact or duration of incarceration, but itsstatement of the law on the question this Court is now consideringindicated not only that the question was open as a matter of SupremeCourt precedent, but that in the First Circuit at least some conditionsof confinement claims could be brought as habeas corpus petitions,subject to obvious limitations (for example, release from incarcerationwould rarely be an available form of relief in such habeas actions).See id at 4-5.

Like the First Circuit, other courts often permit challenges toconditions of confinement to proceed under a habeas petition when someaction taken or procedure used by prison administrators creates alikelihood that the period of incarceration will be longer. See,e.g., Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989);McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir. 1982). Somehave gone still further, asserting that habeas will lie to challengeconditions that do not in any way implicate the fact or duration of confinement. See Boudin v. Thomas,732 F.2d 1107, 1111-12 (2d Cir. 1984) (collecting cases).

For most conditions of confinement claims, however, and particularlyfor those involving inadequate medical treatment, courts usually holdthat habeas relief is not available. See, e.g., Lee v.Winston, 717 F.2d 888, 893 (4th Cir. 1983); United States v.Sisneros, 599 F.2d 946, 947 (10th Cir. 1979); Crawford v.Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). But cf. Albersv. Ralston, 665 F.2d 812, 815 (8th Cir. 1981) (noting that a habeasaction will lie to challenge conditions of confinement where substantialconstitutional violations were alleged). This Court is of the view that,with the exception of extreme cases where transfer or release might be anecessary remedy, most challenges to the constitutional adequacy ofmedical care should proceed as civil rights claims under Bivensor Section 1983, or as an ordinary civil action under federal law.

1. Inappropriateness of Dismissing Prisoner Suits for InartfulPleading

Even when habeas is not the proper form of action, however, courtsshould not dismiss claims, but rather should either treat the habeaspetition as if it were filed as a civil rights claim, or require thepetitioner to amend his claim. See Hughes v. Rowe, 449 U.S. 5,10 (1980) (per curiam) (holding that a pro se prisoner complaint "shouldnot be dismissed for failure to state a claim unless it appears beyonddoubt that the plaintiff can prove no set of facts in support of his claim which would entitlehim to relief"); Reves v. Supervisor of Drug EnforcementAgency, 834 F.2d 1093, 1095 (1st Cir. 1987) (examining the reliefrequested and the facts alleged to supply legal bases for a prisoner'sclaims); see also Caldwell, 790 F.2d at 595 ("It is wellsettled that . . . we construe pro se complaintsliberally. . . . It is also well-settled that Fed.R.Civ.P. 8(a)(1)does not require a plaintiff to set forth the statutory basis for thedistrict court's subject-matter jurisdiction in order for the court toassume jurisdiction, so long as he alleges facts sufficient to bring thecase within the court's jurisdiction."); Lee, 717 F.2d at 892-93;McKinnis v. Mosely, 693 F.2d 1054, 1057 (11th Cir. 1982);Moorish Science Temple of Am., Inc. v. Smith, 693 F.2d 987,989-91 (2d Cir. 1982); Weaver v. Wilcox, 650 F.2d 22, 26 &n.10 (3d Cir. 1981); Crawford, 599 F.2d at 893. Such treatmentis consistent with the principle, announced in a Supreme Court prisonercase, that pro se complaints are held to "less stringent standards thanformal pleadings drafted by lawyers." Haines, 404 U.S. at 520;see also Reyes, 834 F.2d at 1095. It is alsoconsistent with the principle that "[i]n behalf of the unfortunates,federal courts should act in doing justice if the record makes plain aright to relief." United States v. Morgan, 346 U.S. 502, 505(1954). More importantly, it is consistent with the interpretiveprinciples this Court has laid out with respect to protecting disfavoredgroups generally, and with respect to enforcing rights under the Constitution andinternational law in particular.

There is some contrary authority, however. For example, Bovce v.Ashcroft, 251 F.3d 911 (10th Cir. 2001), affirmed the dismissal of afederal prisoner's habeas petition that challenged conditions ofconfinement, on the grounds that such a claim would have to be brought inthe form of a civil rights action under Bivens. Id.at 914, 917-18 (citing Rael v. Williams, 223 F.3d 1153, 1154(10th Cir. 2000)), -judgment vacated on other grounds on reh'g,268 F.3d 953 (10th Cir. 2001). The Tenth Circuit acknowledged that inJohnson v. Avery, 393 U.S. 483, the Supreme Court exercisedjurisdiction over a challenge to conditions of confinement in the form ofa habeas petition, without commenting on the jurisdictional issue.See Boyce, 251 F.3d at 915-16. The Tenth Circuitreasoned, however, that under United States v. L.A. Tucker TruckLines, Inc., 344 U.S. 33, 38 (1952), a case that does not addressjurisdiction cannot be cited as authority for exercising jurisdiction.See Boyce, 251 F.3d at 915-16.85

This Court disagrees with the Tenth Circuit's approach, but even if itdid not, First Circuit law would compel the Court to ally itself with the Second, Third, Fourth, Fifth, Seventh, Ninth,and Eleventh Circuits in holding that a pro se prisoner's failure toplead a claim under the correct cause of action is not, in itself,grounds for dismissal. See Reyes, 834 F.2d at 1095;Dickerson, 750 F.2d at 153. Although Dickerson is notdirectly on point, its approval of cases permitting challenges toconditions of confinement through habeas and its invocation of "the basicpolicies of habeas corpus relief," id. at 153, suggest that thecourthouse doors should not be slammed shut for pro se prisoners who failto understand a distinction that few licensed attorneys understand, andabout which courts continue to disagree.

Indeed, even if Kane had brought a habeas petition challenging both theconditions and the fact of his confinement, the proper course would be toallow the former as a Bivens action and the latter as a habeasaction, and to hear both at once with that understanding.Preiser itself makes clear that nothing precludes a stateprisoner from simultaneously challenging the fact or duration of hisconfinement in a habeas petition and challenging conditions of hisconfinement in a Section 1983 action. Preiser, 411 U.S. at 499n.14.

2. Alternatives to Dismissal

The next question is whether the proper course is simply to treat theaction as if it were properly pleaded (with notice to the parties), or rather to require amendment. As a practicalmatter, the former is more sensible. Habeas corpus and civil rights laware notoriously complex, reminiscent of the common law writ system thatthe Federal Rules of Civil Procedure were supposed to eliminate, andthere is little reason to believe that a pro se litigant's exposition onone or the other will provide much assistance to the Court or make itmuch easier for the government to respond. Moreover, it seems undesirableto increase the substantial amount of time it already takes to processprisoners' claims. Among the 63 percent of state prisoner challenges tostate court convictions that get dismissed without consideration of themerits,86 district courts take an average of 268 days to reach thatresult. Roger A. Hanson & Henry W.K. Daley, Bureau of JusticeStatistics, Federal Habeas Corpus Review: Challenging State CourtCriminal Convictions 17, 23, athttp://www.ojp.usdoj.gov/bjs/pub/pdf/fhcrcscc.pdf (Sept. 1995). Thoseconsidered on the merits take an average of 477 days. Id. at23. Ten percent of all habeas petitions take 761 days or more to resolve.Id. at 19.87 Of course, these figures do not simply indicate a lack of diligence on the part of districtcourts; in some cases involving "mixed petitions," which include bothexhausted and unexhausted claims, the delay in resolution results fromthe district court staying proceedings while the petitioner exhaustsremaining claims. See Nowaczyk v. Warden,299 F.3d 69, 79 (1st Cir. 2002) (recognizing "a growing consensus thata stay is required when dismissal [of a mixed petition] could jeopardizethe petitioner's ability to obtain federal review"); see also Duneanv. Walker, 533 U.S. 167, 183 (2001) (Stevens, J., concurring, joined by Souter, J.);id. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.);Neverson v. Farguharson, No. 03-1385, 2004 WL 943604, at *8(1st Cir. May 4, 2004).

In this case, anyway, proceeding as if Kane had correctly pled hisaction is the better course. First, the Court has already had this casefor over a year, and the added value, if any, of permitting amendment ofpleadings and additional filings would not justify further delay. Second,the primary dispositive task in this case involves analysis of factsalready submitted, not resolution of intricacies in civil rights law.Third, the parties' arguments center around two issues that would beessentially identical whether the case were treated as a habeas case or acivil rights case: exhaustion of administrative remedies and legaladequacy of the medical treatment Kane is receiving. The Court cannotthink of a single important argument that the Warden would have raised,had he known he was defending against a Bivens action ratherthan a habeas petition. Fourth, the only party who would potentially beprejudiced by the Court's failure to take the amendment route is theWarden, but as it happens, the Court's decision runs in his favor anyway.

Whether a court permits a conditions of confinement claim to proceed assuch, treats it as a Section 1983 or Bivens claim, or requiresthe petitioner to change his pleadings to make his action a civil rightsaction rather than a habeas one, even the judicial branch's most steadfast champions of prisoners' rightsagree that prisoners must not be permitted to circumvent the regimesassociated with the more appropriate class of action by styling theirclaim as one within the other class. See, e.g., Preiser, 411U.S. at 524 n.24 (Brennan, J., dissenting, joined by Douglas &Marshall, JJ.). Thus, a claim like Kane's should be subjected to anyprocedural or other requirements applicable to Bivens-style claims, andcannot be remedied through release, as that remedy is only available for"true" habeas claims.

3. Impact of the Prison Litigation Reform Act

One potential issue remains. The Prison Litigation Reform Act ("PLRA"),11 U.S.C. § 523; 18 U.S.C. § 3624, 3626; 28 U.S.C. § 1346,1915, 1915A; 42 U.S.C. § 1997-1997h, has placed certain restrictionson inmate petitions.88 The First Circuit has not yet resolvedwhether, under the PLRA, a court can permit a prisoner to amend hiscomplaint to state more accurately his legal claim. Under42 U.S.C. § 1997e(c), in suits by prisoners: The court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim on which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Id.

The Sixth Circuit would interpret this provision as denying districtcourts discretion to permit amendment in cases where the complaint of aprisoner with a potentially valid grievance fails to state a claim onwhich relief can be granted. Cf. Baxter v. Rose, 305 F.3d 486,488-89 (6th Cir. 2002) (citing McGore v. Wigglesworth,114 F.3d 601, 612 (6th Cir. 1997)) (noting the similarity of Section1997e(c) to 28 U.S.C. § 1915(e)(2), which the McGore court had held torequire sua sponte dismissal for failure to state a claim onwhich relief can be granted).

The Third Circuit, however, has held that Section 1997e(c) "did notchange the procedures our court previously adopted regarding thedismissal of a complaint without granting leave to amend." Shane v.Fauver, 213 F.3d 113, 114-15 (3d Cir. 2000). Those proceduresrequired district courts to offer plaintiffs a chance to amend beforedismissing their cases, if it appeared that amendment could cure anydeficiencies in the complaint. Id. at 116. Numerous courts haveheld that if a prisoner has a potentially valid claim, and if FederalRule of Civil Procedure 15 would permit amendment as of right, a courtmay not dismiss the case sua sponte without permittingamendment. See id. at 114-15 (addressing Section1997e(c)); see also Troville v. Venz, 303 F.3d 1256, 1260 (11thCir. 2002) (addressing 28 U.S.C. § 1915(e)(2)(B)(ii), which requiresa district court to dismiss a case brought in forma pauperis if the"action or appeal" fails to state a claim on which relief can be granted); Grayson v.Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002) (same);Razzoli v. Federal Bureau of Prisons, 230 F.3d 371, 377 (D.C.Cir. 2000) (addressing 28 U.S.C. § 1915A(b)(1)); Lopez v.Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (addressingSection 1915(e)(2)(B)(ii)); Bass v. Parkwood Hosp.,180 F.3d 234, 247 (5th Cir. 1999) (same); Gomez v. USAA Fed. Sav. Bank,171 F.3d 794, 796 (2d Cir. 1999) (same); Perkins v. Kansas Dep't ofCorr., 165 F.3d 803, 806 (10th Cir. 1999) (same).

The language of 42 U.S.C. § 1997e(c) does not clearly mandateeither result, and it seems unlikely that when drafting Section 1997e(c),Congress was considering cases where a prisoner with a colorable claimmerely invokes the wrong statute. The "fails to state a claim upon whichrelief can be granted" language obviously mirrors Federal Rule of CivilProcedure 12(b)(6). As this Court has already shown, before passage ofthe PLRA, courts commonly treated cases pled under the wrong cause ofaction as if they had been pled properly. If Congress wishes to deprivecourts of their traditional powers, it must clearly state its intentionto do so. Weinberger v. Romero-Barcelo, 456 U.S. 305, 319-20(1982); Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944). Giventhe liberality of the Federal Rules' pleading requirements, seeDewey v. University of N.H., 694 F.2d 1, 3 (1st Cir. 1982), theadditional allowances made for pro se litigants, Haines, 404U.S. at 520-21, the canons of interpretation regarding protection of prisoners and vindication of rights underthe Constitution and international law, and the practical reasons thisCourt has given for not requiring amendment, Section 1997e(c) cannotreasonably be interpreted to require dismissal of Kane's action.

Moreover, the Constitution requires careful scrutiny of any statutethat restricts or penalizes exercise of the right, guaranteed under theFirst and Fourteenth Amendments, to petition the government (includingthe judicial branch) for redress of grievances. One can see thisprinciple at work in the Noerr-Pennington doctrine,which generally immunizes individuals or entities petitioninggovernmental bodies from suit under the federal antitrust laws, with anexception for "sham" petitions. See United Mine Workers of Americav. Pennington, 381 U.S. 657, 669 (1965); Eastern R.R.Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,138-39, 144 (1961); see also Prof'l Real Estate Investors, Inc. v.Columbia Pictures Indus., Inc., 508 U.S. 49, 55-56 (1993)(concluding that the sham litigation exception toNoerr-Pennington immunity must be construed narrowly); NAACP v.Claiborne Hardware Co., 458 U.S. 886, 914-20 (1982) (holdingthat participants in civil rights boycotts could not be held liable understate law for economic damages resulting from boycott, except to theextent that participants engaged in violence). Under 28 U.S.C. § 1915(g), a prisoner is generally barred fromfiling further civil actions (as opposed to "true" habeas petitions) ifhe has had three or more civil actions or appeals dismissed on thegrounds that they were frivolous or malicious or failed to state a claimon which relief can be granted. Thus, whenever a court determines thatdismissal is required under 42 U.S.C. § 1997e(c), it also makesfuture access to the courts more difficult, and thus both imposes apenalty for filing a suit and limits the future exercise of the right topetition the courts. Just as immunity from suit under the antitrust lawsdoes not extend to "sham" petitions, so Congress can penalize prisonerswho abuse the legal system. It would raise serious constitutionalquestions, however, to interpret 42 U.S.C. § 1997e(c) to penalize thefiling of a colorable claim whose only failing is inartful pleading.

In light of the background understanding of the application ofRule 12(b)(6)'s language, a background against which Congress legislated, andin light of the many interpretive presumptions that the Court hasdiscussed, the most reasonable reading of Section 1997e(c) is thatcomplaints like Kane's do not "fail[] to state a claim upon which reliefcan be granted." If Congress wanted courts to construe inmate complaintsmore narrowly, or to dismiss without permitting amendment, itcould easily have added language to that effect. Thus, so long as thegovernmental defendant is on notice as to what the prisoner is alleging,and has an opportunity to raise any defenses it could raise under thecorrect cause of action, Section 1997e(c) does not require dismissal.

A contrary holding would frustrate the PLRA's purpose. There is nothingin the PLRA's legislative history to suggest that Congress intended tokeep meritorious claims out of court.89 Rather, the additional procedural hurdles the PLRA erects, and theadditional case management powers it gives to district courts, are bestunderstood as seeking to increase the quality of inmate complaints,weeding out the frivolous ones and giving the courts more time to reviewlegitimate ones.90 It is by no means clear that the PLRA issucceeding in that regard, see generally Inmate LitigationI,91 but this does not mean that Congress's purpose was otherthan the Court has suggested. Courts cannot lightly presume that Congress has an intent hostile to our legalsystem's firmly embedded commitments to providing access to the courts tovindicate valid human rights claims, and interpreting the PLRA as adeliberate attempt to thwart such claims would obviously raise seriousconstitutional questions.

It may be objected that the Court's interpretation makes the languagein Section 1997e(c) requiring dismissal of "frivolous" claimssuperfluous. This would be a serious charge, because courts "express adeep reluctance to interpret a statutory provision so as to rendersuperfluous other provisions in the same enactment." PennsylvaniaDep't of Pub. Welfare v. Davenport, 495 U.S. 552, 562 (1990),overruled on other grounds by Criminal Victims Protection Actof 1990, Pub.L. 101-581, § 3, 104 Stat. 2865. Under the Court'sinterpretation, however, "frivolous" and "fails to state a claim on whichrelief can be granted" retain independent meaning, and Congress includedboth to ensure that no baseless suits could slip through the cracks. Itis possible for a complaint to fail to allege sufficient facts to justifyrelief, without being frivolous. There are instances where an injuryinflicted by a prison official, though objectionable and of a sort thatwould be actionable if inflicted on a nonprisoner or by a private actor,does not violate a prisoner's rights. In such instances, an action fordamages or an injunction might be reasonable and nonfrivolous, eventhough the law clearly provided no remedy for the injury. More to the point, a legally adequate complaint might still be frivolous, inlight of facts of which a court could not ordinarily take judicialnotice, but which could easily be verified as incontrovertible.

Somewhat more troubling is the term "malicious." It seems that, to haveindependent meaning, the term must permit dismissal of some class ofclaims that are both legally sufficient and nonfrivolous. This problemexists regardless of hgw broadly or narrowly a court interprets thephrase "fails to state a claim on which relief can be granted," however,so it does not constitute a bar to the Court's interpretation. The extentto which a court may dismiss a nonfrivolous, legally sufficient claimbased solely on an evaluation of the prisoner's intent in filing suit maythus safely be left for another day. Cf. Professional Real EstateInvestors, 508 U.S. at 57 ("We left unresolved the questionpresented by this case — whether litigation may be sham merelybecause a subjective expectation of success does not motivate thelitigant. We now answer this question in the negative and hold that anobjectively reasonable effort to litigate cannot be sham regardless ofsubjective intent.").

D. Merits of the Parties' Motions

1. Kane's Motion to Appoint Counsel

Before proceeding further, the Court must determine whether counselshould be appointed for Kane. "The law is well established that there is no constitutional right to appointment ofcounsel in a civil case." Cookish v. Cunningham, 787 F.2d 1, 2(1st Cir. 1986) (citing Andrews v. Bechtel Power Corp. & Local276, Plumbers & Pipefitters Union, 780 F.2d 124, 137 (1st Cir.1985)). Under 28 U.S.C. § 1915(e)(1), however, [t]he court mayrequest an attorney to represent any person unable to afford counsel."The First Circuit requires a litigant seeking appointment of counsel in acivil case to demonstrate "exceptional circumstances" justifying suchappointment. Cookish, 787 F.2d at 2. The factors considered indeciding whether exceptional circumstances exist "include the indigent'sability to conduct whatever factual investigation is necessary to supporthis or her claim; the complexity of the factual and legal issuesinvolved; and the capability of the indigent to present the case."Id. at 3 (citations omitted).

The Court denies Kane's motion to appoint counsel. He clearly hasaccess to the medical records and the scientific and legal materials heneeds to make his case. Although this case raises some factually andlegally complex issues, most of those issues are ancillary to the basicquestions regarding whether Kane's medical treatment meets the standardslaid down by the Constitution and by BOP regulations. Those latterquestions are decidedly less complex, and Kane has demonstrated himselffully capable of presenting his case on them. Moreover, the Court hasresolved virtually all of the more complex legal questions in Kane's favor. The factually complex questions involve the medicalscience surrounding diagnosis and treatment of hepatitis C, but in thiscase the parties have reasonably agreed that certain medical textsprovide accurate information, and the Court has had no difficultyabsorbing the information in those texts and applying it to this case.

2. Kane's and the Warden's Motions for Summary Judgment

a. Summary Judgment Standard

Summary judgment is warranted if, after reviewing the facts in thelight most favorable to the nonmoving party, no genuine issues ofmaterial fact remain. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 247 (1986). A "genuine" issue of fact is onethat a reasonable jury, on the record before the court, could resolve infavor of either party. Anderson, 477 U.S. at 248. In making itsdetermination, the Court must view the evidence in the light mostfavorable to the non-moving party, and draw all reasonable inferences inits favor. Eastman Kodak Co. v. Image Technical Servs., inc.,504 U.S. 451, 490 (1992).

The moving party bears the burden of showing that there is no genuineissue of material fact and that said party is therefore entitled tojudgment as matter of law. Anderson, 477 U.S. at 250;Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). If themovant satisfies this burden, the nonmovant must proffer evidencesupporting the existence of a genuine issue of material fact. Donovan v. Aqnew, 712 F.2d 1509, 1516 (1stCir. 1983). The adverse party may not rest upon mere allegations ordenials; she must set forth specific facts showing that a genuine issueexists. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 250.

b. Exhaustion of Administrative Remedies

The Court must now determine whether and to what extent Kane hasexhausted his administrative remedies, as required under42 U.S.C. § 1997e(a). This is true even though Kane filed his actionas a habeas petition, because it is in substance a "conditions ofconfinement" claim. The Court notes that Kane need not pleadexhaustion; rather, failure to exhaust is an affirmative defensethat the Warden must plead, and has pled. The Court thus partscompany with courts that have required prisoners to plead exhaustionin their complaints. Compare Brown v. Toombs, 139 F.3d 1102, 1104(6th Cir. 1998) (per curiam) (imposing such a pleading requirement),with Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (treatingexhaustion as an affirmative defense), Ray v. Kertes, 285 F.3d 287, 295(3d Cir. 2002) (same), Jackson v. District of Columbia, 254 F.3d 262,267 (D.C. Cir. 2001) (same), Foulk v. Charrier, 262 F.3d 687, 697(8th Cir. 2001) (same), Perez v. Wisconsin Dep't of Corr.,182 F.3d 532, 536 (7th Cir. 1999) (same), and Jenkins v. Haubert,179 F.3d 19, 28-29 (2d Cir. 1999) (same). In this case, the BOP acknowledges that Kane has "arguably" exhaustedhis administrative remedies with regard to the claims that were thesubject of his filed grievance and administrative appeals. Def.'s 56.1Stmt. ¶ 2. As the Court has stated, failure to exhaust is anaffirmative defense, which the Warden must raise, so to the extent hedoes not raise it with respect to the claims included in the May 29, 2001grievance, it is waived. In any case, the Warden has not pointed theCourt to other procedures that Kane could have invoked to pursue theclaims laid out in his May 29, 2001 grievance.

In reading the text of the denials of Kane's appeals, up to andincluding the last denial on September 20, 2001, the Court finds that thereviewing officials were able to review actions taken since the filing ofthe May 29, 2001 grievance, and that they did so. The Court thereforeholds that Kane has exhausted administrative remedies for any claimsbased on conduct or inaction regarding his request for combinationtherapy occurring before September 20, 2001. The rationale behindexhaustion requirements is to give the relevant decisionmaker anopportunity to correct any errors or legal wrongs committed, and the BOPhad the opportunity to do that for any relevant grievances that Kane hadas of September 20, 2001. Kane has not exhausted administrative remedieswith regard to any actions or inaction by the Warden or the BOP afterthat date, however; he has not even sought administrative review. Kane argues that he need not exhaust administrative remedies, becausegrave harm is threatened, and invocation of administrative remedies wouldbe futile. The Court disagrees. Kane has not made anything approachingthe required showing for futility. The appeals decisions in the recordaccurately describe Kane's complaint, his condition, his treatment, thegoverning regulations, and the application of those regulations to hiscase. The appeals decisions in fact reached correct results, given thegoverning regulations, whose constitutional and statutory adequacy havenot been challenged.

Moreover, the appeals process appears to move with remarkable speed; ittook less than four months to proceed from the filing of a grievance to afinal appeal decision. Kane's September 5, 2002 biopsy indicated that hishepatitis C is currently mild grade and stage, and even with theaggravating factors that apply to Kane, his disease does not progress soquickly that a requirement that he pursue another four-month round ofadministrative proceedings places him in any danger. Indeed, Kane has notgiven this Court any reason to believe that the BOP would deny himcombination therapy, should he qualify for it.

As for Kane's claim that the BOP has retaliated against him by"transferring [him] to another Unit in the Compound, and putting him towork," Pl.'s Pet. Mem. ¶ 12, the Warden has properly raised a failureto exhaust defense as to all claims based on conduct or inaction occurring after September 20, 2001,including this one. Although this Court takes Kane's allegationseriously, he must exhaust administrative remedies before raising ithere.

c. Merits of the Motions

The proper question before the Court is whether Kane's care up toSeptember 20, 2001 violated BOP regulations or the Constitution, and theCourt holds that it did neither. For purposes of this case, the Courtneed not discuss Kane's constitutional claim. Kane has made no allegationthat BOP regulations themselves are unconstitutional, and he certainlyhas provided no evidence to that effect. Therefore, unless and until theCourt is presented with evidence to the contrary, the Warden and the BOPcomply with constitutional standards to the extent that they follow theBOP regulations at issue in this case.

Under the BOP Practice Guidelines, "[t]he presence ofmoderate to severe fibrosis and inflammation and necrosis on liver biopsyare currently the best markers for determining who should be offeredantiviral therapy for hepatitis C." BOP Practice Guidelines at41. Thus, if a chronic hepatitis C patient's biopsy reveals portal orbridging fibrosis and at least moderate inflammation and necrosis,antiviral therapy is "recommended." Id. at 44. As of Kane's September 5,2002 biopsy, his hepatitis C was mild grade and stage, although it cameclose to being moderate grade and stage.

Under the BOP Practice Guidelines, although all HCV genotypesare candidates for treatment, doctors are urged to consider the fact thatpatients with genotype 1 have response rates of 40 to 45 percent tocombination therapy, whereas those with genotypes 2 and 3 have responserates of 76 to 82 percent. Id. at 44. Kane has genotype 1,making him less likely to respond favorably to treatment. Moreover, forinmates who, like Kane, are infected with both HBV and HCV, "[a]ntiviraltherapy . . . should be initiated with great caution, and only inconsultation with a specialist . . . due to the uncertainty of therisks and benefits of treatment and lack of a recommended treatmentregime." Id. at 48. Although there do not appear to be any"absolute contraindications" for interferon or ribavirin that apply toKane, see id. App. 9, at 73, HBV co-infection, poorlycontrolled diabetes, and history of recent alcohol abuse or illicit drugusage constitute potentially relevant "relative contraindications."See id.

Thus, as of September 20, 2001, Kane did not fall into the category ofpatients for whom combination therapy is "recommended." Roughly a yearafter that date, Kane received a liver biopsy, and even then he did notfall into that category. At least two factors, Kane's HBV coinfection andhis HCV genotype, incline against his receiving combination therapy, so the Court cannot say that BOP regulations required combinationtherapy even after the biopsy, much less a year earlier.

The record suggests that as of September 20, 2001, Kane's disease wasbeing monitored in compliance with BOP regulations. Moreover, examiningthe record in the light most favorable to Kane, such monitoring continuedthroughout the period for which he submitted medical records. Kane hasreceived a biopsy, and will likely receive another one in the nearfuture, given that under the BOP Practice Guidelines, inmateswho fall short of moderate grade and stage hepatitis C "should berebiopsied every one to five years," but should be rebiopsied within oneyear or considered for treatment if they have minimal fibrosis and markedhepatocellular necrosis. Id. at 44. If Kane wishes to challengethe adequacy of the care he is receiving after another biopsy, he mustagain exhaust the prison system's administrative remedies, a process thatthe record before this Court suggests should not take long.

3. Kane's Motion for a Jury Trial

Given that the Court has awarded summary judgment to the Warden, Kane'smotion for a jury trial is denied as moot.

E. PLRA Provisions Governing Filing Fees and FrivolousSuits

Kane filed his action as a habeas petition, but this Court hasdetermined that it is in fact a civil rights action, generally subject tothe strictures of the PLRA. This has two potentially important consequences. The first is that this suitmight constitute a first "strike" for Kane. A prisoner is generallybarred from filing further civil actions (as opposed to "true" habeaspetitions) if he has had three or more civil actions or appeals dismissedon the grounds that they were frivolous, malicious, or failed to state aclaim on which relief can be granted. 28 U.S.C. § 1915(g). The secondissue is that 28 U.S.C. § 1915 requires all prisoners bringing civilactions (again, as opposed to habeas petitions) to pay the appropriatefiling fee, even if they are proceeding in forma pauperis. The fee forhabeas petitions is $5, and the fee for civil actions is $150.28 U.S.C. § 1914(a).

The Supreme Court's recent decision in Castro v. UnitedStates, 124 S.Ct. 786 (2003), provides important guidance inanswering both questions. The Supreme Court held that a district courtcannot convert a federal prisoner's motion for a new trial under FederalRule of Criminal Procedure 33 into a habeas corpus petition under28 U.S.C. § 2255, unless the court informs the litigant of its intent torecharacterize, warns the litigant of the consequences, and offers anopportunity to withdraw or amend the filing. Id. at 789. Ifthese procedures are not followed, the Rule 33 motion cannot beconsidered a habeas petition for purposes of applying the limitationsthat Section 2255 places on "second or successive" habeas petitions.Id. The idea is that the courts' well-established power torecharacterize prisoner complaints to ensure that technicalities do not bar considerationof a valid claim should not be used to penalize pro se litigants fortheir lack of legal sophistication. Castro thus does notconstitute an absolute bar to recharacterization without notice; rather,it precludes such recharacterization in cases where it can have "seriousconsequences" for the prisoner. Id.

With regard to the "three strikes" provision in28 U.S.C. § 1915(g), recharacterization would have different consequences indifferent cases, depending on such factors as whether a prisoner hadfiled previous habeas petitions or was already subject to a time bar forpotential habeas claims, whether the claim was in fact frivolous, andwhether the prisoner had previous "strikes." This is not a problem forKane, however, because the Court holds that the disposition of this casedoes not rest on grounds of frivolity, malice, or failure to state aclaim. Kane's claim was colorable, though ultimately unsuccessful, so itcannot count as a "strike" under the PLRA. The Court therefore holds thatKane's action should be regarded as an ordinary civil action, not ahabeas petition, because failure to do so could only limit Kane's futureaccess to habeas relief, without in any way facilitating his access toordinary civil relief regarding his conditions of confinement.

As for the filing fee, Kane's suit is in reality a civil rights action,and some courts are of the view that any prisoner whose habeas petitionturns out to be a disguised civil rights action must pay the higher fee. See Kincade v. Sparkman,117 F.3d 949, 952 (6th Cir. 1997); Williams v. Dretke, No.03-CV-413-M, 2004 WL 414915, at *2 n.l (N.D. Tex. Mar. 4, 2004). Whateverthe constitutionality of charging indigents $150 to exercise theirconstitutional right to petition the courts for redress of legitimategrievances, or of treating indigent prisoners differently from indigentnon-prisoners, Kane is not proceeding in forma pauperis. Kane did not paythe $150 civil action fee upon filing his action, however; rather, hepaid the $5 fee for habeas corpus petitions.

There are obvious fairness problems with charging Kane an additional$145 at this point, without having given him any prior notice that hisaction is properly characterized as a civil action. SeeCastro, 124 S.Ct. at 789; United States v. Miller,197 F.3d 644, 652 (3d Cir. 1999); Adams v. United States,155 F.3d 582, 584 (1998) (per curiam). The Court has no evidence thatKane chose to treat his action as a habeas claim rather than aBivens claim in bad faith. He specifically requested release asone possible form of relief, suggesting that he had genuine reasons forstyling his action as a habeas petition. If the Court had noticed earlyon that this was in fact a civil rights action, not a habeas petition, itmight have been appropriate to ask Kane whether he would prefer to paythe additional $145 or end his suit. See Harris v. Outlaw, No.Civ. 03-3311ADMSRN, 2003 WL 21960731, at *l-*2 (D. Minn. Aug. 14, 2003);Brown v. United States Dep't of Justice, No. Civ. A. 02-CV-723-Y, 2003 WL21499358, at *1 (N.D. Tex. June 26, 2003); cf.Castro, 124 S.Ct. at 789. Although it might even beappropriate to require a prisoner who had successfully sued for moneydamages against the government to setoff the $145, it does not seemappropriate to demand further payment under the present circumstances.

Of course, 28 U.S.C. § 1914(a) is not phrased in permissive terms:it requires payment of the fee. The ambiguity resides not in the "shallbe required" language, however, but rather in the "if a prisoner brings acivil action" language. The technical form of the action that Kanebrought was not a civil action, but rather a habeas corpus petition. Thedistinction between the two is what drives the uniform rulings by thecircuits that the PLRA does not apply to habeas corpus petitions.See, e.g., Martin, 118 F.3d at 874. Given the complex interplaybetween habeas corpus and civil rights actions, it seems doubtful thatCongress considered how the PLRA should apply in cases like this one.

That being so, the Court holds that it is appropriate to exercise acertain degree of equitable discretion in these circumstances, consistentwith the purposes of the PLRA. To the extent that the PLRA sought todiscourage bad faith and frivolous suits, Kane's suit does not fall intoeither category, nor does his decision to file his case as a habeaspetition, so penalizing him does not serve this purpose. To the extentthat the PLRA sought to reduce the workload that prisoner suits impose on federal courts, requiring courts to make determinations in everycase whether the action is a "true" habeas petition, and then to chasedown filing fees after dismissal or final judgment, hardly reduces thejudiciary's administrative burdens. Kane is now on notice that claimsregarding his medical treatment are civil in nature, and that he must paythe full $150 filing fee if he again brings an action like this one. Thisneatly tailors the charging of a filing fee to serial filing, which ismore the sort of thing the PLRA is targeting.

Other courts have taken a similar approach, dismissing a habeaspetition without first "converting" it to a civil rights action.See Aponte v. California Dep't of Corr., No. C03-4799WHA(PR), 2003 WL 23119275, at *1 (N.D. Cal. Dec. 23, 2003);In re Lancellotti, No. 01 C 6549, 2001 WL 1002479, at *1 (N.D.Ill. Aug. 31, 2003); United States ex rel. Rickard v. Sternes,149 F. Supp.2d 437, 447 (N.D. Ill. 2001); cf.Castro, 124 S.Ct. at 789. The Court does not follow thatapproach in this case, because failure to recharacterize Kane's petitionmight limit his access to habeas relief in the future. The Court reservesfor another day the question whether a prisoner's action maysimultaneously be treated as an ordinary civil action for one purpose andas a habeas petition for another. III. CONCLUSION

Accordingly, on March 23, 2004, Kane's Motions for Appointment ofCounsel [Doc. No. 14], for a Jury Trial [Doc. No, 5], and for SummaryJudgment [Doc. No. 11] were DENIED, the Warden's Motion for SummaryJudgment [Doc. No. 7] was ALLOWED, judgment was entered for the Warden,and no further filing fee was assessed.

1. Thomas C. Bonczar, Bureau of Justice Statistics, Prevalenceof Imprisonment in the U.S. Population, 1974-2001, at 2,at http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf (Aug. 2003)[hereinafter Prevalence of Imprisonment].

2. The parties designate themselves as "Petitioner" and"Respondent," under the understanding that this is a habeas corpusproceeding. As the Court discusses below, the case is in fact a civilrights action, and the proper parties are "Plaintiff" and "Defendant."The Court will therefore refer to the parties and theirpleadings using the latter designations.

3. One of Kane's administrative appeal decisions states that he hasType II diabetes, probably erroneously. Def.'s 56.1 Stmt. Ex. 1, Attach.D. The precise nature of his diabetes is, however, not important toresolution of this case — all that matters is whether his diabetesis under control.

4. The annual rate of HCC in cirrhotic patients is between one andthree percent. Chronic Hepatitis, supra, at 1747.

5. Genotype and quasispecies diversity refer to the type and thediversity of types of HCV detected.

6. There is no specification in the record whether Kane's hepatitisB is chronic, and the clinical features of the two kinds of chronichepatitis are similar, Chronic Hepatitis, supra, at 1747, butthe Court can infer from the record that Kane's hepatitis B is in factchronic.

7. These four features were evaluated in Kane's September 5, 2002liver biopsy. Pl.'s Summ. J. Opp'n [Doc. No. 10] App. (Biopsy Report of9/5/02). Interface hepatitis (or piecemeal necrosis) is item B, bridgingnecrosis is item D, focal necrosis is item C, and portal inflammation isitem A. Id.

8. In particular, pegylated interferon in combination with ribavirinproduces the best results. NIH Statement, supra, at9.

9. It is unnecessary for the Court to resolve this issue, becausethe Court holds that Kane's medical treatment complied with federal lawand with the Constitution as of the date when he exhausted hisadministrative remedies.

10. A useful summary of the BOP's recommended strategy for treatmentof chronic hepatitis C can be found in Appendix 10 of the BOPPractice Guidelines. BOP Practice Guidelines, supra, at 74-75.

11. A score of 2 would have meant that Kane's stage was "moderate,"not "mild."

12. 18 U.S.C. § 4042(a)(2) requires the BOP to "provide suitablequarters and provide for the safekeeping, care, and subsistence of all[federal prisoners]." 28 U.S.C. § 1361 gives the district courtsoriginal jurisdiction over actions in the nature of mandamus to compelfederal officers and employees to perform duties owed to aplaintiff.

13. Judges spend little time on prisoner suits. Between 1987 and1993, the average inmate civil rights case, from filing to disposition,took under an hour of Article III judge time, which is troubling even inlight of the responsibilities delegated to pro se law clerks andmagistrate judges. Margo Schlanger, Inmate Litigation, 116Harv. L. Rev. 1555, 1589-90 (2003) [hereinafter Inmate LitigationI] (citing a Federal Judicial Center Study). The facts that inmatecases rarely settle and that a small number of comprehensive court ordercases take an extraordinary amount of time make this low figure even morealarming. Id.

14. Of course, some prisoners are affluent, and are able toinfluence public affairs during or after their incarceration. Simon C.Fireman, who spent six months under house arrest for violating campaignfinance laws, has published a book that decries the present system ofAmerican criminal justice and sentencing. See Simon C. Fireman,No Justice: The 6 Million Dollar Disaster 129-76 (1999).Charles Colson, who went to prison for his role in the Watergate scandal,has since his release founded the Prison Fellowship Ministries and become"an effective spokesman on behalf of prison and sentencing reform." MarcMauer, The Last of the Disenfranchised, Newsday, Nov. 3, 2002,at A30, available in 2002 WL 102167524. Similarly, SolWachtler, former Chief Justice of New York, published a memoir of hisyear in prison and has become an advocate for sentencing reform.See Sol Wachtler, After the Madness: A Judge's Memoir ofHis Time in Prison (2003) He has also become "a passionate advocatefor the legal rights of the mentally ill." Joe Mahoney, He's RealWork of Art: Wachtler Portrait Will Get Spot in Court, N.Y. DailyNews, June 5, 2001, at 8, available in 2001 WL 17953770.

15. The correlation between a group's marginal status in society andits representation in the prison population is neither a new nor asurprising phenomenon. See generally Michel Foucault,Discipline and Punish: The Birth of the Prison (Alan Sheridantrans., Vintage Books 2d ed. 1995) (1978) (tying trends in penologicalhistory to larger trends in social and political history); MichelFoucault, Madness and Civilization: A History of Insanity in the Ageof Reason 38-84, 221-40 (Richard Howard trans., Vintage Books 1988)(1961) [hereinafter Madness and Civilization] (discussing theoften brutal confinement of the poor and the insane during theseventeenth, eighteenth, and nineteenth centuries).

16. Numerous studies have examined the nature and effects ofdisenfranchisement of individuals convicted of crimes in this country.See, e.g., Patricia Allard & Marc Mauer, Regaining theVote: An Assessment of Activity Relating to Felon DisenfranchisementLaws, athttp://www.soros.org/initiatives/justice/articles_publications/publications/regainingthevote_20000101/regainingthevote.pdf (Jan. 2000);Common Cause, Not Making the Grade: On Anniversary of FloridaFiasco, Common Cause Education Fund Releases Report on How States HaveResponded to Need for Election Reform, athttp:// (Nov. 6, 2001);Jamie Fellner & Marc Mauer, Losing the Vote: The Impact ofFelony Disenfranchisement Statutes in the United States, athttp://www.soros.org/initiatives/justice/articles_publications/publications/losingthevote_19981001/losingthevote.pdf (Oct. 1998); JohnMark Hansen, Task Force on the Federal Election System, To AssurePride and Confidence in the Electoral Process ch. 8, athttp://www.reformelections.org/data/task_2/t2_reports/b_electionsystem.pdf (Aug. 2001); Christopher Uggen & Jeff Manza,Democratic Contraction? Political Consequences of FelonDisenfranchisement in the United States, 67 Am. Soc. Rev. 777(2002), available at http://www.sentencingproject.org/pdfs/UggenManza.pdf (last visited Apr. 30, 2004; see generallyThe Sentencing Project, Felony Disenfranchisement: A Review ofScholarly Literature, at http://www.sentencingproject.org/pdfs/fvrlitreview.pdf (last visited Apr. 30, 2004). In the world at large, it is not uncommon to deny the vote to felonsduring incarceration: nations like the United Kingdom, Russia, and manyof the post-Soviet republics do, although many other countries, includingIreland, Spain, Sweden, Denmark, Greece, South Africa, and Australia, donot, and countries such as Austria, Belgium, Italy, Norway, Canada, andNew Zealand permit some classes of prisoners to vote. Uggen & Manza,supra, at 778. As Professors Uggen and Manza note, however,"[a]mong postindustrial democracies, the United States is virtually theonly nation to permanently disenfranchise ex-felons as a class in manyjurisdictions, and the only country to limit the rights of individualsconvicted of offenses other than very rare treason or election-relatedoffenses." Id. The United States also issues felony convictionsat a much higher rate than other industrial democracies — 686 per100,000 population in 2000, as compared to rates of 105 in Canada, 95 inGermany, and 45 in Japan. Id. and sources cited. Thecombination of these latter two factors makes disenfranchisement ofnonincarcerated criminals a uniquely serious problem in the UnitedStates.

17. Even Maine and Vermont disenfranchise "those convicted oftreason, bribery, and election offenses." Law of Prisons,supra, at 1942 n.21 (quoting a pre-publication draft of Uggen &Manza, supra).

18. The court does not use the term "felon," often used indiscussing the disenfranchisement problem, because it is in fact possibleto lose the vote for conviction of misdemeanors, or of crimes that,though now defined as "felonies," would not until fairly recently inAmerican history have been regarded as such. See George P.Fletcher, Disenfranchisement as Punishment: Reflections on theRacial Uses of Infamia, 46 UCLA L. Rev. 1895, 1899 (1999) (notingthe modern expansion of the concept of "felony"). In Delaware, for example, one can lose the right to vote if convictedof participation with others "in a course of disorderly conduct." Del.Code Ann. tit. 11, § 1302 (defining the crime of "riot" as a felony).This is particularly frightening, given that individuals arrested forparticipating in civil disobedience or even in lawful protest are oftencharged with crimes like "disorderly conduct." An individual can alsolose the vote for "aiding or inducing another to engage in gambling."Wyo. Stat. Ann. §§ 6-7-101(a)(vii), -102. See Law ofPrisons, supra, at 1940 & nn. 6-9; see alsoFellner & Mauer, supra, at 6 (noting that conviction ofshoplifting can lead to disenfranchisement, and that some states imposedisenfranchisement for any crime punishable by imprisonment, which wouldobviously include numerous misdemeanors).

19. See McLauqhlin v. City of Canton, 947 F. Supp. 954,971 (S.D. Miss. 1995) ("Disenfranchisement is the harshest civil sanctionimposed by a democratic society. When brought beneath its axe, thedisenfranchised is severed from the body politic and condemned to thelowest form of citizenship, where voiceless at the ballot box thedisenfranchised, the disinherited must sit idly by while others elect hiscivic leaders and while others choose the fiscal and governmentalpolicies that will govern him and his family.").

20. These thirty are Alabama, Alaska, Arizona, Arkansas, Delaware,Florida, Georgia, Iowa, Kansas, Kentucky, Maryland, Minnesota,Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, NorthCarolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas,Virginia, Washington, West Virginia, Wisconsin, and Wyoming. TheSentencing Project, Felony Disenfranchisement Laws in the UnitedStates 3, at http://www.sentencingproject.org/pdfs/1046.pdf (Apr. 2004).

21. It appears that Professors Uggen and Manza did not account forthe fact that some portion of the individuals counted in the census arenon-citizens, and thus ineligible to vote. Compare Uggen &Manza, supra, at 797 app. tbl. A (listing voting age populationfor California as 24,873,000, based on 2000 census data), withMarisa J. Demeo & Steven A. Ochoa, Diminishing Voting Power inthe Latino Community: The Impact of Felony Disenfranchisement Laws in TenTargeted States 16-17, athttp://www.sentencingproject.org/pdfs/maldef-rpt.pdf (Dec. 2003)(listing citizen voting age population for California at 20,011,574,based on 2000 census data). Yet even if the difference between voting agepopulation and citizen voting age population were as significantnationwide as it is in California, an unlikely proposition, AfricanAmericans would be disenfranchised at at least 2.64 times the rate in thegeneral population. It may be, however, that failing to account forcitizenship cuts both ways, because a significant number of black peoplein this country are non-citizens (from Haiti, for example). Cf.Demeo & Ochoa, supra, at 16-17 (demonstrating howaccounting for citizenship increases disenfranchisement disparitiesbetween Hispanics and the population at large). The Court will thereforecontinue to refer to the 3.28 figure, subject to these caveats.

22. Disparities are worse within individual states. For example,there are two states in which one in three black men is disenfranchised,and eight states in which one in four black men is disenfranchised.Fellner & Mauer, supra, at 1.

23. The states were Arizona, California, Florida, Nebraska, Nevada,New York, North Carolina, Texas, Virginia, and Washington.

24. Virginia's Department of Corrections does not collect data onLatino inmates, making an evaluation of Latino disenfranchisement forthat state difficult. Demeo & Ochoa, supra, at 17.

25. See generally Steven Kalogeras, The SentencingProject, Annotated Bibliography: Racial Disparities in the CriminalJustice System, at http://www.sentencingproject.org/pdfs/5007.pdf(2003) (summarizing existing research on this subject).

26. See also The Sentencing Project, HispanicPrisoners in the United States, athttp://www.sentencingproject.org/ pdfs/1051.pdf (Aug. 2003) (discussingthe racial disparities between Hispanic Americans and white Americans inthe criminal justice system).

27. The racial disparities are perhaps worst in the area of drugoffenses, at least as between African Americans and white Americans. AHuman Rights Watch study found that as of 2000, African Americansconstituted 62.7% of all drug offenders admitted to state prison, whichmeans that, relative to population, they were admitted at 13.4 times therate of white Americans. Human Rights Watch, Punishment andPrejudice: Racial Disparities in the War on Drugs ch. 1,at http://www.hrw.org/ reports/2000/usa (May 2000). In at leastfifteen states, African American men were admitted to state prison ondrug charges at rates ranging from 20 to 57 times that for white men.Id. Thus, one in twenty African American men was in state orfederal prison, as compared to one in 180 white American men.Id. This occurred despite the lack of any meaningful differencein drug use rates among the races. See Office of AppliedStudies, United States Dep't of Health & Hum. Servs., 2001National Household Survey on Drug Abuse: Highlights, athttp://www.oas.samhsa.gov/ nhsda/2klnhsda/voll/highlights.htm (lastupdated Mar. 29, 2004) (reporting that illicit drug use occurred among7.4% of African Americans, 7.2% among white Americans, and 6.4% amongHispanic Americans). Racial disparities also exist in the imposition of the death penalty:although there is disagreement regarding the extent to which a criminaldefendant's race influences imposition of the death penalty, most studieshave found that an individual convicted of killing a white American issubstantially more likely to receive the death penalty than is anindividual convicted of killing an African American. See, e.g.,U.S. Gen. Accounting Office, Death Penalty Sentencing: ResearchIndicates Pattern of Racial Disparities 5 (Feb. 1990),available at http://www.gao.gov (providing a synthesis of 28studies that showed a "pattern of evidence indicating racial disparitiesin the charging, sentencing, and imposition of the death penalty"); DavidC. Baldus et al., Racial Discrimination and the Death Penalty in thePost-Furman Era: An Empirical and Legal Overview, with Recent Findingsfrom Philadelphia, 83 Cornell L. Rev. 1638, 1661 (1998) (findingevidence of race-of-victim disparity in 90% of states studied andrace-of-defendant disparities in 55%); see also Ring v.Arizona, 536 U.S. 584, 617 (2002) (Breyer, J., concurring in thejudgment) (citing the General Accounting Office Report and the Baldus etal. article). It would be inappropriate for this Court to speculate on the extent towhich racial disparities in incarceration, drug crime prosecution andsentencing, and imposition of the death penalty are a result of consciousor unconscious racial bias, either in the design of criminal statutes,the enforcement of those statutes, the adjudication of criminalprosecutions, or in the design of economic and social policies.

28. This has been a problem in western countries since at least theseventeenth century. See Madness and Civilization, supra, at38-78, 221-43.

29. The litigation surrounding the Texas prison system has a longand tortured history. In Ruiz v. Estelle, 503 F. Supp. 1265(B.C. Tex. 1980), Judge Justice found numerous violations of the EighthAmendment in the Texas prison system. The Fifth Circuit agreed that theprison system was in violation of the Eighth Amendment, although itreversed many parts of the district court's decree. Ruiz v.Estelle, 679 F.2d 1115, 1163 (5th Cir. 1982), amended andvacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982). Inthe most recent installment, Ruiz v. Johnson, 154 F. Supp.2d 975,1001 (S.D. Tex. 2001), Judge Justice held that the prison systemstill had serious constitutional infirmities.

30. The Court notes the possibility that one or more nations withtotalitarian governments may under-report incarceration rates, and maythus in reality have higher rates than the United States.

31. This rate is reported in Prisoners in 2002, supra, at2.

32. Letters sent from the Department of Justice to state and localofficials regarding the results of these investigations are posted in theSpecial Litigation Section of the Department of Justice website.See Special Litigation Section, Department of Justice,Documents and Publications, at http://www.usdoj.gov/crt/split/http://www.usdoj.gov/crt/split/ findsettle.htm#FindingsLetters(last visited May 3, 2004). Each letter reveals that the federalgovernment has found constitutional violations in most or all of thefollowing areas: fire safety, security and protection from harm, medicaland mental health care, environmental health and safety, opportunities toexercise, and access to courts. See id. In 2003,letters were sent regarding facilities in California, Mississippi, NewMexico, Oklahoma, and Virginia. Id. In 2002, letters were sentregarding facilities in Arkansas, Maryland, Nevada, and South Dakota.Id. Other states and territories that have received suchletters in recent years include Georgia, Iowa, Kentucky, Louisiana, theNorthern Mariana Islands, Puerto Rico, Tennessee, and Wyoming.Id.

33. Copies of these consent decrees and judgments can be found athttp://www.usdoj.gov/crt/split/ findsettle.htm#Settlements.

34. Perversely, one reason that it is so common for men to beguarding female prisoners is that courts have frequently invoked theCivil Rights Act of 1964 to prohibit governmental and private employersfrom making guard hiring decisions based on gender. All TooFamiliar, supra, at ch. 1. This may be a consequence of thedifficulty that employers confront in amassing a sufficient record todemonstrate that gender-based hiring is justified in this situation. Italso may be a consequence of the formalistic "gender-blind" analysis thatcourts increasingly apply to civil rights provisions in the federalConstitution and in federal statutes, an approach that studiously ignoresthe purposes behind the provisions and the context of gender-based powerrelations in society. For a discussion of the appropriate analysis toapply in cases involving hiring of prison guards based on gender, seeTorres v. Wisconsin Dep't of Health & Social Servs.,859 F.2d 1523, 1526-33 (7th Cir. 1988).

35. As one might well expect, retaliation against prisoners whoinvoke their rights is a common problem. See, e.g., Walkerv. Bain, 257 F.3d 660, 663 (6th Cir. 2001) (noting a jury verdictfor a plaintiff whose legal papers were confiscated in retaliation forfiling grievances); Gomez v. Vernon, 255 F.3d 1118, 1127, 1131(9th Cir. 2001) (upholding a lower court's injunction protectingprisoners from retaliation from filing grievances or lawsuits);Trobaugh v. Hall, 176 F.3d 1087, 1088-89 (8th Cir. 1999)(directing the award of compensatory damages for a prisoner placed inisolation for filing grievances); Maurer v. Patterson,197 F.R.D. 244, 249 (S.D.N.Y. 2000) (upholding a jury verdict for a prisonerwho received a retaliatory disciplinary charge for complaining about thegrievance program).

36. Two important early cases regarding sexual abuse of femaleinmates should be noted. See LaMarca v. Turner,995 F.2d 1526, 1544 (11th Cir. 1993) (upholding the portion of a districtcourt's injunction that required Florida's Glades CorrectionalInstitution to train personnel in handling rape complaints, providespecial training for the staff psychiatrist and staff psychologist, andpromulgate procedures for the referral of rape victims for evaluations);Jordan v. Gardner, 986 F.2d 1521, 1530-31 (9th Cir. 1993) (enbane) (affirming the district court's holding that the psychological harminflicted by cross-gender clothed body searches of inmates at a women'sprison constituted cruel and unusual punishment).

37. The court also described deprivations in the areas of medicalcare, living conditions, fire safety, and access to prison programs on anequal basis, Women Prisoners, 877 F. Supp. at 643-62, and heldthat virtually all of them violated constitutional or statutorystandards, id. at 664-79. The Court of Appeals by and largeaffirmed, except as to claims based on District of Columbia law and as tosome of the claims based on unequal access to prison programs. WomenPrisoners, 93 F.3d at 932.

38. In the text of the consent agreements, the states deny that theyare guilty of any wrongdoing, and maintain that they are settling toavoid the costs of litigation.

39. Copies of both agreements can be found athttp://www.usdoj.gov/crt/split/findsettle.htm#Settlements.

40. Jurisdictions were asked to report on three types of capacity: Rated capacity is the number of beds or inmates assigned by a rating official to institutions within the jurisdiction. Operational capacity is the number of inmates that can be accommodated, based on a facility's staff, existing programs, and services. Design capacity is the number of inmates that planners or architects intended for the facility.Prisoners in 2002, supra, at 7. Many prison systems onlyreported on one or two kinds of capacity. Id. Rated and designcapacity relate to overcrowding, whereas operational capacity refers tounderstaffing, but it is obvious that both increasing inmates' exposureto one another and failing to provide adequate supervision would tend toincrease the incidence of inmate-on-inmate violence.

41. Other lawsuits challenging conditions in supermax facilitieshave led to consent decrees and, ultimately, to improvements. In 2001, aWisconsin federal court awarded a preliminary injunction requiring thatmentally ill inmates not be housed at the Supermax Correctional Facilityin Boscobel, Wisconsin, upon a finding that the inmate plaintiffs haddemonstrated a sufficient likelihood of "showing that the very fact ofhousing any seriously mentally ill inmates at Supermax constitutes crueland unusual punishment." Jones `El v. Berge, 164 F. Supp.2d 1096,1122, 1125 (W.D. Wis. 2001). The case was ultimately resolvedthrough a settlement agreement. 2002 WL 32362655, at *1 (W.D. Wis. Sept.8, 2002) (noting that judgment was entered after a settlement agreementwas recorded). A lawsuit challenging conditions at the Ohio State Penitentiaryapparently prompted state officials to make changes in the areas ofmedical care, mental health, and outdoor recreation. Marilyn Miller,Warden Defends Prison Security; ACLU Lawsuit Claims Isolation atPenitentiary Is Too Extreme, Cruel, Akron Beacon Journal, Jan. 10,2002, at D3, available in 2002 WL 6722633. The Ohio Court laterheld that conditions at the facility were such that prisoners had aliberty interest in avoiding transfer there, and that the prison system'sprocedures for making transfer decisions violated the Due Process Clauseof the Fourteenth Amendment. See Austin v. Wilkinson,189 F. Supp.2d 719, 754 (N.D. Ohio 2002); see also Sandin v. Conner,515 U.S. 472, 484 (1995) (holding that a state prisoner could not succeedin a Section 1983 suit alleging violation of state prison regulations,unless the violation led to restraint that "imposes atypical andsignificant hardship on the inmate in relation to the ordinary incidentsof prison life"). A settlement in the Austin case was laterapproved by the Sixth Circuit. See 83 Fed. Appx. 24, 2003 WL22734797 (6th Cir. Nov. 18, 2003) (unpublished table decision). (TheCourt recognizes that in the Sixth Circuit, unpublished opinions arebinding only on the parties to the case, 6 Cir.R. 28(g); UnitedStates v. Webber, 208 F.3d 545, 551 n.3 (6th Cir. 2000), and citesAustin merely as confirmation that settlement was reached inthat case.)

42. For discussions of the history of this constitutional provision,see Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (opinion ofStewart, Powell, and Stevens, JJ.), and Furman v. Georgia,408 U.S. 238, 316-28 (1972) (Marshall, J., concurring).

43. Although neither is involved here, the Court notes that theEighth Amendment also prohibits punishments grossly disproportionate to acrime's severity, e.g., Weems v. United States, 217 U.S. 349,367 (1910), and places limits on what can be criminalized and punished,e.g., Robinson, 370 U.S. at 666-67

44. See also Gregg, 428 U.S. at 172-73 (joint opinion ofStewart, Powell, and Stevens, JJ.); Weems v. United States,217 U.S. 349, 373 (1910).

45. A more complete examination of the role of international law indomestic prisoners' rights cases might well require a discussion of theinternational legal prohibitions against discrimination on the basis ofrace and other immutable or quasi-immutable characteristics, given thehigh proportion of members of marginalized groups in the prisonpopulation. Along these lines, the Court notes that the prohibitionagainst racial discrimination has been affirmed in many treaties,undoubtedly has the status of customary international law and juscogens, and places greater affirmative obligations on governmentthan does the Equal Protection Clause of the Fourteenth Amendment toremedy past discrimination and to avoid actions that unnecessarilyproduce a disparate impact on racial minorities. See, e.g.,U.N. Charter art. 1, paras. 2-3; American Convention on Human Rights,Nov. 22, 1969, 1144 U.N.T.S. 123 (1978); International Convention on theElimination of All Forms of Racial Discrimination, Dec. 21, 1965, G.A.Res. 2106 A(XX), 660 U.N.T.S. 195 (1969); American Declaration of theRights and Duties of Man, Mar. 30-May 2, 1948, O.A.S. Res. XXX, O.A.S.Off. Rec. OEA/Ser/. L./V/I.4 Rev (1965); Universal Declaration of HumanRights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., Pt. 1,at 71, U.N. Doc. A/810; Barcelona Traction, Light & Power Co., (Belg.v. Spain), 1970 I.C.J. 3, 32 (Feb. 5) (noting that international law hasoutlawed racial discrimination, and that the obligation not to engage insuch discrimination is an obligation erga omnes); Restatement(Third) of the Foreign Relations Law of the United States §§ 302, 702& cmt. n (1987); Richard Lillich, Civil Rights, in 2Human Rights in International Law 115, 133, 151 (Thedor Meroned., 1984). Yet because other international legal norms and domesticconstitutional norms provide adequate grounds for decision in this case,the Court leaves further discussion for another day. Similarly, the Courtdoes not discuss the numerous instruments dealing with the rights ofwomen, children, the mentally ill, and other groups, which include rightsagainst torture and cruel or unusual punishment, because the more generalmaterials discussed are sufficient to establish the status of theserights as applied to all people.

46. The United States ratified the ICCPR subject to a declaration ofnon-self-execution. Anne Bayefsky & Joan Fitzpatrick,International Human Rights Law in United States Courts: AComparative Perspective, 14 Mich. J. Int'l L. 1, 42 (1992).

47. See also In re Weitzman, 426 F.2d 439, 461 (8th Cir.1970) (Heaney, J., concurring) (referring to the principle established bythe Nuremberg trials and the Universal Declaration of Human Rights ininterpreting the statutory term "conscience"); Lareau v.Manson, 507 F. Supp. 1177, 1189, 1192-93 & nn. 9, 18 (D. Conn.1980) (looking to the United Nations' Standard Minimum Rules for theTreatment of Prisoners and other international legal sources indetermining that prison overcrowding had risen to a level that violatedthe Eighth Amendment), aff'd in part and modified in part,651 F.2d 96 (2d Cir. 1981); Rodriguez Fernandez v.Wilkinson, 505 F. Supp. 787, 795-800 (D. Kan. 1980), (grantinga writ of habeas corpus on the ground that the petitioner's detentionviolated international law), aff'd 654 F.2d 1382, 1388 (10thCir. 1981) ("It seems proper then to consider international lawprinciples for notions of fairness as to propriety of holding aliens indetention.").

48. See also Sampson v. Federal Republic of Germany,250 F.3d 1145, 1149-50 (7th Cir. 2001); United States v.Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995) (citingCommittee of United States Citizens Living in Nicaragua v.Reagan, 859 F.2d 929, 939-40 (D.C. Cir. 1988), and Siderman deBlake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992));Mehinovic v. Vuckovic, 198 F. Supp.2d 1322, 1344 (N.D. Ga.2002); Taveras-Lopez v. Reno, 127 F. Supp.2d 598, 609 (M.D.Pa. 2000); White v. Paulsen, 997 F. Supp. 1380, 1383 (E.D.Wash. 1998); Xuncax v. Gramaio, 886 F. Supp. 162, 183 n.25 (D.Mass. 1995) (Woodlock, J.); Paul v. Avril, 901 F. Supp. 330,335 (S.D. Fla. 1994); Restatement, supra, §§ 102, 702 &cmt. n.

49. See also G.A. Res. 3144, Dec. 14, 1973, U.N. GAOR,28th Sess., Supp. No. 30, at 85 (calling on member states to incorporatethe Standard Minimum Rules into domestic penal law); G.A. Res. 2858, Dec.20, 1971, U.N. GAOR, 26th Sess., Supp. No. 29, at 94 (same).

50. Suzanne M. Bernard, An Eye for an Eye: The Current Statusof International Law on the Humane Treatment of Prisoners, 25Rutgers L.J. 759, 776 (1994).

51. See id. at 777. "Law enforcement officials"includes those who exercise "powers of detention." Code of Conduct,supra, at art. 1, cmt. a.

52. In this country, principles of the Standard Minimum Rules wereincorporated into the 1962 Model Penal Code and the correctionalstandards developed in 1973 by the National Advisory Commission onCriminal Justice Standards and Goals. Bernard, supra, at 774& n.98 (1994) (citing Daniel L. Skoler, World Implementation of theUnited Nations Standard Minimum Rules for the Treatment of Prisoners, 10J. Int'l L. & Econ. 453, 460 (1975)). The Standard Minimum Rules havedirectly influenced penal laws in states such as Connecticut, Illinois,Minnesota, Ohio, Pennsylvania, and South Carolina. Id. at774-75 & nn.99-101 (citing Skoler, supra, at 462).

53. See, e.g., American Convention on Human Rights arts.5, 25, Nov. 22, 1969, 1144 U.N.T.S. 123 (1978); European Convention forthe Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4,1950, 213 U.N.T.S. 221 (1953); African Charter on Human and Peoples'Rights art. 5, June 27, 1981, OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58(1982); Inter-American Convention to Prevent and Punish Torture, Dec. 9,1985, O.A.S. Treaty Series No. 67; European Convention for the Preventionof Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26,1987, 27 I.L.M. 1152 (1988).

54. See, e.g., Committee of Ministers, Council of Europe,European Prison Rules, Recommendation No. R(87)3 (1987); AmericanDeclaration of the Rights and Duties of Man, Mar. 30-May 2, 1948, O.A.S.Res. XXX, O.A.S. Off. Rec. OEA/Ser/. L./V/I.4 Rev (1965).

55. See note 48, supra; see also ViennaConvention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S.331 (describing the general effect of a norm's jus cogensstatus).

56. Courts in many nations go further in treating international lawas binding against their governments, incorporating customaryinternational law into domestic law and permitting it to trump domesticstatutes and common law. See J.G. Starke, Introduction toInternational Law 86-87 (10th ed. 1989).

57. See also Ware, 3 U.S. (3 Dall.) at 256-80(Iredell, J.) (applying the law of nations); id. at 279(stating the principle that statutes should not be interpreted to violateinternational legal obligations); id. at 263 (clarifying thatordinarily, customary international law is binding on nations);id. at 254-55 (Paterson, J.) (applying the law of nations);id. at 226-31, 242-45 (Chase, J.) (same).

58. See also Talbot, 3 U.S. (3 Dall.) at 169 (Rutledge,C.J.) (applying the law of nations); id. at 157 (Paterson, J.)(similar). The Seventh Circuit has taken a narrow view of the domestic applicationof customary international law. See Sampson, 250 F.3d at 1153n.4. The Seventh Circuit's view that "it does not follow [fromCharming Betsy] that federal statutes must be read to reflectthe norms of international law," id. at 1152-53, isexceptionally difficult to square with Supreme Court precedent, however.The Seventh Circuit suggests that the nineteenth century cases"apparently meant that customary international law was included in thegeneral common law recognized in Swift v. Tyson, 41 U.S. (16Pet.) 1 (1842)," and that "[t]he general common law, unlike the federalcommon law of today, did not fall under the Supremacy Clause of theUnited States Constitution," so "the exact meaning of these earlypronouncements on the domestic role of customary international law becameless certain after the Supreme Court's rejection of a general common lawin Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)."Id. The Seventh Circuit apparently did not consider FirstNational City Bank, 462 U.S. 611, or McCulloch v. SociedadNacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963), bothof which were decided decades after Erie. See also BancoNational de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964) (clarifyingthat even after Erie, "an issue concerned with the basic choice regardingthe competence and function of the Judiciary and National Executive inordering our relationships with other members of the internationalcommunity must be treated exclusively as a matter of federal law"). In any case, it is difficult to imagine how Erie could havemodified earlier precedent on how federal courts should interpret federalstatutes. The only conceivable effect Erie could have had wouldhave been on the application of customary international law to thestates, via federal common law, in diversity cases, and even there, theSupreme Court has confirmed that Erie did not change the law.See Banco National, 376 U.S. at 425-26 (clarifying that evenafter Erie, "rules of international law should not be left to divergentand perhaps parochial state interpretations"). For the majority view inthese matters, see Harold Hongju Koh, Is International Law ReallyState Law?, Ill Harv. L. Rev. 1824 (1998), and Louis Henkin,International Law as Law in the United States, 82 Mich. L. Rev.1555 (1985). For a reply to Professor Koh's arguments, see Curtis A.Bradley & Jack L. Goldsmith, Federal Courts and theIncorporation of International Law, 111 Harv. L. Rev. 2260(1998).

59. See also note 47, supra. Even JusticesScalia and Thomas, two of the Supreme Court's most adamant critics of theconsideration of international norms in interpreting the Eighth andFourteenth Amendments, acknowledge the continuing viability of theCharming Betsy canon. See Hartford Fire Ins. Co. v.California, 509 U.S. 764, 814-21 (1993) (Scalia, J., dissenting,joined by 0'Connor, Kennedy, and Thomas, JJ.).

60. Admittedly, the consensus in favor of enforcing the originalunderstanding of the Constitution and the long line of precedentsupporting it is weaker than it once was. Occasionally a Supreme Courtmajority opinion will attempt to chisel away at that understanding indicta, perhaps in a footnote. See Stanford v.Kentucky, 492 U.S. 361, 369 n.l (1989) (Scalia, J., opinion ofthe court) ("We emphasize that it is American conceptions ofdecency that are dispositive, rejecting the contention . . . that thesentencing practices of other countries are relevant."). According toJustice Scalia's view, other nations' practices are only relevant asevidence that a uniform practice within this country is more than "ahistorical accident," such that it potentially has a place in theConstitution. Id. As the Court has already mentioned, however,even Justices Scalia and Thomas acknowledge the continuing viability ofthe Charming Betsy canon. See Hartford Fire Ins. Co.,509 U.S. at 814-21 (1993) (Scalia, J., dissenting). There has also been some congressional hostility to the roleinternational law plays in domestic judicial decisions. For example,Representatives Thomas Feeney (R-Fla.) and Robert Goodlatte (R-Va.) haveintroduced a resolution that would prohibit federal judges from relyingon foreign court decisions when interpreting American law, and theresolution has at least 60 co-sponsors in the House of Representatives.See Luiza Savage, Legislators Eye Foreign-Law Threat,New York Sun, Mar. 26, 2004, available in 2004 WL65908596.

61. When the United States ratifies human rights agreements, itoften does so subject to extensive reservations, understandings, anddeclarations to the effect, inter alia, that the treaty is notunderstood to require a change in United States law or practice, that theUnited States does not submit to the jurisdiction of the InternationalCourt of Justice, that implementation of the treaty can be left largelyto the states, and that the treaty is non-self-executing. Louis Henkin,U.S. Ratification of Human Rights Conventions: The Ghost of SenatorBricker, 89 Am. J. Int'l L. 341, 341 (1995); see generallyid. (criticizing this practice).

62. For a general discussion of this question, see Ted L. Stein,The Approach of a Different Drummer: The Principle of the PersistentObjector in International Law, 26 Harv. Int'l L.J. 457 (1985).

63. Some courts have held as much. See, e.g.,Rodriguez Fernandez, 505 F. Supp. at 798. But seeWhite, 997 F. Supp. at 1385.

64. See also INS v. St. Cyr, 533 U.S. 289, 300 & n.12(2001) (collecting cases invoking the constitutional avoidancecanon).

65. United States v. Carolene Products Co., 304 U.S. 144,152 n.4 (1938) (noting that "a more searching judicial inquiry" under theEqual Protection Clause might be needed where prejudice against suchminorities "curtail[s] the operation of those political processesordinarily to be relied upon to protect minorities"); seegenerally John Hart Ely, Democracy and Distrust (1980)(arguing that judicial intervention under constitutional provisions likethe Equal Protection Clause and the Due Process Clause is mostappropriate when governmental action distorts the political process, asin cases involving racial prejudice or malapportionment or gerrymanderingof electoral districts); Bruce A. Ackerman, Beyond CaroleneProducts, 98 Harv. L. Rev. 713, 718 (1985) (arguing that Carolene's"four operative terms" — "prejudice," "discrete," "insular," and"minorities" — seek "to identify groups that have beenunconstitutionally deprived of their fair share of democraticinfluence"). For other useful discussions of the CaroleneProducts decision as a proper statement of the judiciary's role in ademocracy, see Robert M. Cover, The Origins of Judicial Activism inthe Protection of Minorities, 91 Yale L.J. 1287 (1982), and Owen M.Fiss, The Supreme Court, 1978 Term — Foreword: The Forms ofJustice, 93 Harv. L. Rev. 1, 5-17 (1979).

66. See also Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (percuriam); Gamble, 429 U.S. at 106.

67. The federal government's prison figures are slightly differentfrom Professor Schlanger's. According to the federal government, as ofJune 30, 2000, 357 facilities, or 21% of existing facilities, were understate or federal court order for the totality of conditions, to limitpopulation, or for specific conditions of confinement. Census ofState and Federal Corrections Facilities, supra, at 9. In 1995, 456facilities, or 31%, had similar directives. Id. Of thefacilities under such orders in 2000, 324 were state-operated and 33 wereprivately operated. Id. Federal prisons were under no suchorders, although 77 of them were under court orders regarding inmatephone service, and one was required to limit population in 1995.Id.

68. These include the fifty states, the District of Columbia, theCommonwealth of Puerto Rico, and the Virgin Islands.

69. In 1981, Justice Brennan provided a representative list ofcases. See Rhodes, 452 U.S. at 353 & n.l (Brennan, J.,concurring) (citing, inter alia, Ramos v. Lamm, 639 F.2d 559(10th Cir. 1980) (Colorado), Burks v. Teasdale, 603 F.2d 59(8th Cir. 1979) (Missouri), Todaro v. Ward, 565 F.2d 48 (2dCir. 1977) (New York), Williams v. Edwards, 547 F.2d 1206 (5thCir. 1977) (Louisiana), Watson v. Ray, 90 F.R.D. 143 (S.D. Iowa1981), Capps v. Atiyeh, 495 F. Supp. 802 (D. Or.1980), Lightfoot v. Walker, 486 F. Supp. 504 (S.D. Ill. 1980),Kendrick v. Bland, No. 76-0079-P (W.D. Ky. Oct. 24, 1980),Harris v. Cardwell, No. CIV-75-185-PHX-CAM (D.C. Ariz. Oct. 14,1980), Feliciano v. Barcelo, 497 F. Supp. 14 (D.P.R. 1979),Stewart v. Rhodes, 473 F. Supp. 1185 (E.D. Ohio 1979),Guthrie v. Cardwell, No. 3068 (S.D. Ga. Dec. 1, 1978),Johnson v. Levine, 450 F. Supp. 648 (D. Md. 1978), aff'din part, 588 F.2d 1378 (4th Cir. 1978), Laaman v.Helgemoe, 437 F. Supp. 269 (D.N.H. 1977), Barnes v. VirginIslands, 415 F. Supp. 1218 (D.V.I. 1976), Costello v.Wainwright, 397 F. Supp. 20 (M.D. Fla. 1975), aff'd,525 F.2d 1239 (5th Cir. 1975), vacated on reh'g on other grounds,539 F.2d 547 (5th Cir. 1976) (en banc), rev'd, 430 U.S. 325(1976), aff'd on remand, 553 F.2d 506 (5th Cir. 1977) (en banc)(per curiam), Battle v. Anderson, 376 F. Supp. 4002 (E.D. Okla.1974), aff'd, 564 F.2d 388 (10th Cir. 1977), and Inmatesof Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass.1973) (Garrity, Jr., J.)).

70. See Plyler v. Moore, 100 F.3d 365 (4th Cir.1996) (describing the long history of the consent order governing SouthCarolina prisons, including its subsequent modifications and ultimatetermination); Grubbs v. Bradley, 552 F. Supp. 1052 (M.D. Tenn.1982); Rhodes, 452 U.S. at 353, 358 & n.l (Brennan, J.,concurring) (citing Duran v. Apodaca, No. Civil 77-121-C(D.N.M. July 17, 1980); Ruiz, 503 F. Supp. 1265 (Texas); Finney v.Mabry, 458 F. Supp. 720 (E.D. Ark. 1978); Palmigiano v.Garrahy, 443 F. Supp. 956 (D.R.I. 1977), remanded,599 F.2d 17 (1st Cir. 1979); Anderson v. Redman, 429 F. Supp. 1105(D. Del. 1977); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala.1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977),rev'd in part on other grounds sub nom. Alabama v.Pugh, 438 U.S. 781 (1978) (per curiam); Gates v. Collier,349 F. Supp. 881 (N.D. Miss. 1972), aff'd, 501 F.2d 1291 (5thCir. 1974); Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970),aff'd, 442 F.2d 304 (8th Cir. 1971)).

71. Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000)(discussing fourteen consent orders addressing prison conditions inprison conditions that existed in the Middle Georgia CorrectionalComplex); Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987)(dismissing an appeal of final judgment governing the Georgia StatePrison).

72. See Hamilton v. Morial, 644 F.2d 351 (5thCir. 1981) (discussing numerous cases alleging unconstitutionalovercrowding in the Louisiana state penitentiary, parish prisons, andparish and city jails); Williams v. Edwards, 547 F.2d 1206 (5thCir. 1977) (Louisiana State Penitentiary at Angola).

73. Costello v. Wainwright, 397 F. Supp. 20 (M.D. Fla.1975) (issuing a preliminary injunction), vacated on othergrounds, 539 F.2d 547 (5th Cir. 1976) (en banc), rev'd430 U.S. 325 (1977).

74. Feeley & Rubin, supra, 41 n.106 (citing Smallv. Martin, No. 85-987-CRT (E.D.N.C. 1988) and Hubert v.Ward, No. C-E-80-414-M (W.D.N.C. 1985)).

75. See also, e.g., Glover v. Johnson, 934 F.2d 703, 715(6th Cir. 1991) (affirming the district court's order to appoint anadministrator, and noting the prisoner class's eleven-year struggleagainst the "consistent and persistent pattern of obfuscation,hyper-technical objections, delay, and litigation by exhaustion on thepart of the defendants to avoid compliance with the letter and the spiritof the district court's orders").

76. Courts have placed some constitutional limits on the use ofsolitary confinement and other forms of psychological torture. See,e.g., Hutto, 437 U.S. at 685-88; Jones'El,164 F. Supp.2d at 1117; Madrid, 889 F. Supp. at 1264; Ruiz,37 F. Supp.2d at 914.

77. For criticism of this decision, see, for example, David L.Shapiro, Wrong Turns: The Eleventh Amendment and the PennhurstCase, 98 Harv. L. Rev. 61 (1984).

78. It should be noted that Sandin only dealt withinjunctive relief. See Shapiro, supra, at 82 (citingSandin, 465 U.S. at 111 n.21). Sandin need not beread to preclude a federal court's exercise of supplemental jurisdictionover damages claims based on state law, even if a state prisoner cannotwin on the federal claims alleged. At most, Sandin would merelybe instructive on the question of how to weigh judicial economy againstconcerns for state prerogatives.

79. The Supreme Court did not reach the question whether applicationof the ADA to state prisons exceeded Congress' power under the CommerceClause or under Section 5 of the Fourteenth Amendment. Yeskey,524 U.S. at 212-13.

80. Some courts apparently apply Sandin to federalprisoners, without considering the possibility that a prisoner can seekrelief from violations of BOP regulations, even when such violations donot run afoul of the Constitution. See, e.g., Tellier v.Fields, 280 F.3d 69, 79-83 (2d Cir. 2000); Crowder v.True, 74 F.3d 812, 814-15 (7th Cir. 1996). In a pre-Sandin case, theEighth Circuit failed to consider the possibility that a federal prisonercould make "sub-constitutional" habeas claims based on federal statutesor regulations, even though the dissent explicitly urged the court to doso. Albers v. Ralston, 665 F.2d 812, 815-16 (8th Cir. 1981);id. at 818-19 (Arnold, J., dissenting). It is unclear whetherthese courts failed to consider relief because they believed such reliefwas unavailable, or because the prisoners did not raise the claim, andthe courts failed to read their complaints as raising ordinary claims forrelief from agency action. In the case of the Seventh Circuit, it mayhave been the latter, because in another case it contemplated thepossibility of an APA-based suit against the BOP and its agents.See Bunn v. Conlev, 309 F.3d 1002, 1009-10 (7th Cir.2002). Regardless of these courts' reasons for failing to considerordinary federal law claims, this Court respectfully disagrees with theirapproach, and it appears that the Supreme Court does as well. There are also cases where courts apply Sandin to prisonersseeking money damages for violations of BOP regulations, apparentlywithout considering the possibility of a claim under provisions of theTucker Act, 28 U.S.C. § 1346(a)(2), or the Federal Tort Claims Act,28 U.S.C. § 1346(b), 2401(b), 2671-2680. Even if procedural barriers— like failure to name the United States as a defendant in aFederal Tort Claims Act action — arise, courts should stillconsider the possible claims. At the same time, there are several reasonswhy this is a less objectionable oversight than in cases seekinginjunctive relief. A Tucker Act claim is likely unavailable, because itis doubtful that any "source of substantive law" on which prisoners mightrely could "fairly be interpreted as mandating compensation by theFederal Government for the damage sustained." United States v.Mitchell, 463 U.S. 206, 216-17 (1983) (quoting UnitedStates v. Testan, 424 U.S. 392, 400 (1976)) (internalquotation marks omitted). Similarly, claims under the Federal Tort ClaimsAct will often be barred by one of many exceptions to liability,particularly the "due care" and "discretionary function" exceptions,28 U.S.C. § 2680(a), the exception for numerous specific torts found in28 U.S.C. § 2680(h), and the unavailability of suit based on anystrict liability theory, Laird v. Nelms, 406 U.S. 797, 803(1972). Moreover, 28 U.S.C. § 1346(b)(2) makes money damagesunavailable in prisoner suits without a showing of "physical injury."Still, it is incumbent upon courts to address these questions when aprisoner's suit fairly raises them.

81. The Court need not consider to what extent 28 U.S.C. § 1337provides an alternative source of federal question jurisdiction.

82. TO be Clardy held the APA inapplicable to prisondisciplinary hearings only. The Ninth Circuit has since applied the APAto the BOP in other contexts. See Gunderson v. Hood,268 F.3d 1149, 1154 (9th Cir. 2001).

83. The Third Circuit held in a later case that the BOP had compliedwith the APA, without considering whether compliance was required.See James v. Quinlan, 866 F.2d 627, 631 (3d Cir. 1989).

84. One reason why a prisoner might file a habeas petition ratherthan bringing a civil rights claim is that the restrictions of the PrisonLitigation Reform Act ("PLRA"), 11 U.S.C. § 523;18 U.S.C. § 3624, 3626; 28 U.S.C. § 1346, 1915, 1915A;42 U.S.C. § 1997-1997h, do not apply to habeas petitions. See, e.g.,Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir. 1997)(discussing the uniform case law holding that the PLRA does not apply tohabeas claims); Inmate Litigation I, supra, at 1638n.277. Moreover, as the Court discusses below, the filing fee for habeaspetitions is significantly lower than the filing fee for ordinary civilactions.

85. Supreme Court did in fact address jurisdiction inBell, but refused to reach the jurisdictional question becausethe government had not raised it at any point in the proceedings.Bell, 441 U.S. at 526 n.6. In addition, the petitioners hadpled an alternative basis for jurisdiction — 28 U.S.C. § 1361— "[a]nd, at the time of the relevant orders of the District Courtin this case, jurisdiction would have been provided by28 U.S.C. § 1331(a)." Id.

86. Fifty-seven percent of the dismissed petitions are dismissed forfailure to exhaust state remedies. Roger A. Hanson & Henry W.K.Daley, Bureau of Justice Statistics, Federal Habeas Corpus Review:Challenging State Court Criminal Convictions 17, athttp://www.ojp.usdoj.gov/bjs/pub/pdf/fhcrcscc.pdf (Sept. 1995).

87. In this District, the average resolution time for cases decidedon the merits is lower than the national average, but the averageresolution times for other habeas cases, and for all categories of habeascases combined, are higher. In 2001, 102 habeas corpus petitionschallenging state court convictions were filed in this District. As ofApril 30, 2004, 37 of those petitions (36.27%) had been decided on themerits, taking an average of 415 days to resolve. That is 62 days fasterthan the national average. Fifteen (14.71%) had been dismissed forfailure to exhaust state remedies, and on average it took 387 days forthose petitions to be dismissed. Thirty-seven (36.27%) had beenterminated for other reasons (usually failure to pay a filing fee or tofile an amended petition), and took an average of 196 days to resolve.Thirteen (12.75%) remain pending. If the Court presumes that those 13scatter evenly around July 2, 2001 (the midpoint of the year), and thatthose cases will be resolved by the end of this year, those cases willtake an average of 1,278 days to resolve. If the Court presumes that all13 will be dismissed without reaching the merits, then this Districttakes an average of 458 days to dispose of habeas petitions withoutreaching the merits, 190 days more than the national average. Because itis difficult to know how accurate this presumption is, a comparison ofoverall disposition times may be more informative. The national averageis 345 days to dispose of a habeas petition. The average in this Districtis roughly 443 days, and will become longer if the unresolved cases arenot resolved this year. As the Court discusses below, the length ofresolution to some degree reflects the laudable practice of stayingproceedings while a petitioner exhausts unexhausted claims. It is atleast possible that this District takes longer than average to resolvehabeas cases in part because judges here engage in this practice moreconsistently than in other districts.

88. For a good general discussion of the PLRA, see John Boston,The Prison Litigation Reform Act, in 16th Annual Section 1983 CivilRights Litigation Handbook, 640 PLI/Lit 687 (2000).

89. Senator Orrin Hatch, Chair of the Senate Judiciary Committee,said the following when he introduced the PLRA's predecessor bill on theSenate floor: This landmark legislation will help bring relief to a civil justice system overburdened by frivolous prisoner lawsuits. Jailhouse lawyers with little else to do are tying our courts in knots with an endless flood of frivolous litigation. Our legislation will also help restore balance to prison conditions litigation and will ensure that Federal court orders are limited to remedying actual violations of prisoners' rights, not letting prisoners out of jail. It is past time to slam shut the revolving door on the prison gate and to put the key safely out of reach of overzealous Federal courts. . . . While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the courts have gone too far in micromanaging our Nation's prisons.141 Cong. Rec. 314,418 (daily ed. Sept. 27, 1995) (statement of Sen.Hatch). Senator Hatch's statements were representative of views expressedby other advocates for the bill. Many federal judges believe that prisoners are excessively litigiousand prone to bring frivolous lawsuits, but an examination of the factsreveals this belief to be erroneous. What for free citizens would be adispute with another private citizen, such as a landlord or banker, isnecessarily a dispute with the state for prisoners. Preiser,411 U.S. at 492. Professor Schlanger has compared inmate litigation ratesto those in the population at large, relying on assumptions that, ifanything, would exaggerate prisoners' litigiousness, and yet hasdetermined that filing rates for inmates and citizens on analogous claimsare roughly equal. Inmate Litigation I, supra, at 1576.Moreover, although absolute numbers of inmate filings have increased inthe last three decades of the twentieth century, this has been primarilydue to the steady growth in the incarcerated population during that time,not to increased litigiousness. Id. at 1585. Admittedly,prisoner suits have a much lower success rate than other suits,id. at 1593-96, but the high standards prisoners must meet toprove violations, the absence of counsel, the low cost of litigation, andnumerous obstacles to settlement all at least partly explain the inmatedocket's apparent "low quality," id. at 1605-22.

90. The PLRA has altered the operation of other Federal Rules ofCivil Procedure, such as Rule 4 (issuance of a summons),Rule 53 (special masters), and Rule 55 (default judgments). See InmateLitigation I, supra, at 1562. This Court is aware of only one otherstatute that has effected similar procedural changes: the PrivateSecurities Litigation Reform Act of 1995, codified in scattered sectionsof 15 U.S.C. Inmate Litigation I, supra, at 1562 (citing ThomasE. Willging, Past and Potential Uses of Empirical Research in CivilRulemaking, 77 Notre Dame L. Rev. 1121, 1196 (2002)).

91. professor Schlanger argues that "the statute seems to be makingeven constitutionally meritorious cases harder both to bring and to win."Inmate Litigation I, supra, at 1557. In 2001, inmate filingswere down 43% from their 1995 peak, despite a 23% increase in thenational population of incarcerated people during that time,id. at 1559-60, but inmates' rate of success has actuallydecreased, id. at 1658.

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