Appellant Brief - Prisoners' First Term Paper

M. Lin's release from MCF has had the effect of rendering his lawsuit moot. In this case, M. Lin was incarcerated at the time the lawsuit was filed, but not at the time it is being decided. Thus, M. Lin's cause of action fails on the issue of mootness. Additionally, of the six members whom were denied visitation privileges, five of them have had sons which whom were formerly incarcerated at MCF, but now have been released. The son of the sixth MOM member asserting denial of visitation privileges died after his release from MCF. Thus, all of the six members of MOM claims will fail as a result of mootness.

C. RIPENESS

AUTHORITY

The controversy must be ripe for decision; ripeness bars consideration of claims before they have fully developed. A case may be dismissed as unripe where a statute has never been enforced and there is no real threat that it ever will be. Poe v. Ullman, 367 U.S. 497 (1961). In this case, the Prison Litigation Reform Act was ultimately unsuccessful, among a myriad of other failed legislation. Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1586-87 (2003) (It would be equally appropriate to talk about a "deluge' of inmate requests for food);

Thomas v. Woolum, 337 F.3d 720, 722 (6th Cir. 2003) (The PLRA's text does not condition access to the federal courts on satisfying the procedures and timelines of prison administrators.");

Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) (holding that once the prisoner exhausts his administrative remedies, he can refile the action in federal court even if the time limit had run on his grievance.

ARGUMENT

As many legal scholars have indicated, and cases have demonstrated, that there were numerous problems concerning the applicability of the provisions of the PLRA.

Porter v. Nussle, 534 U.S. 516, 525 (2002) (determining what the term "prison conditions" meant under 1997e (a)); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 Emory L.J. 1771, 1773-74 (2003) (discussing the scope of the exhaustion requirement and Congress's silence on the consequences of procedural missteps in the course of exhaustion);

Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004) (rejecting the total exhaustion doctrine), cert. denied, 73 U.S.L.W. 3513 (U.S. Feb. 28, 2005) (No. 04-668). In the cause of action presented, there has never been a statute which has been enforced in such situations as the one illustrated above. Thus, the Plaintiffs cause of action also fails on the issue of ripeness.

II. FEDERAL STATUTORY CLAIM

PRISON LITIGATION REFORM ACT (42 U.S.C. 1997e)

AUTHORITY

The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321-66 (1996) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.), was designed to reduce the quantity and improve the quality of prisoner suits.

Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e (a), 42 U.S.C. 1997e (a) (2000) provides that no action shall be brought with respect to prison conditions under 42 U.S.C. 1983 (2000), or any other Federal law,... By a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted (42 U.S.C. 1997e (a)). The doctrine of exhaustion of administrative remedies, like the related doctrines of finality and ripeness, govern the timing of lawsuits in federal courts.

McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Exhaustion is applicable to all inmate suits about prison life, whether the suit is about general circumstances or particular episodes, regardless of what the alleged wrong is.

Porter v. Nussle, 534 U.S. At 532. The exhaustion requirement is not absolute, however, but is an affirmative defense that must be pled or it will be waived.

Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004);

Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001);

Perez v. Wisc. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999).

Each state provides inmates with such administrative remedies, with the exhaustion requirements generally following a similar pattern. N.Y. Comp. Codes R. & Regs. tit. 7, 701.7 (2001). Typically, when a prisoner brings a complaint under 1983, he will allege multiple constitutional violations. Ross, 365 F.3d at 1183. If all claims are unexhausted, the complaint is generally dismissed without prejudice until the required procedures are invoked.Section 1997e (a) does not specify how detailed a prisoner's grievance must be in order to satisfy exhaustion.

Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004). Courts have generally not required the prisoner to allege a specific legal theory or facts to correspond to that legal theory, but rather the grievance must give prison officials fair notice of the problem that underlies the prisoner's suit.

Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003)). Thus, the amount of detail required in giving such notice must be interpreted in light of the purposes behind 1997e (a).

ARGUMENT

The Turner test is used to decide whether a prison regulation that infringes a constitutional right is reasonable. The Turner test was developed specifically to "formulate a standard of review for prisoners' constitutional claims." Turner v. Safley, 482 U.S. 78, 85 (1987). The Turner test is a four-pronged evaluation: 1) Is the regulation rationally related to a valid penological interest; 2) Are there alternate means for the inmate to exercise the right in question; 3) What is the impact of accommodation of the asserted right on guards, other prisoners, and allocation of prison resources; and 4) Are there obvious, easy alternatives to the regulation in question that accommodate the prisoner's right at a de minimis cost, and is the regulation an "exaggerated response" to the prison's concerns. Turner, 482 U.S. At 89-91. Courts use a "totality of circumstances" approach to determine if the challenged regulation is reasonable, analyzing Turner's four-pronged test in a "balancing" manner, so that if one factor is weak, but others are strong, the policy may still be upheld. O'Lone v. Estate of Shabazz, 482 U.S. 342, 351 (1987) (upholding a prison regulation resulting in a Muslim prisoner's inability to attend Jumu'ah even though the Court's analysis of the second Turner prong recognized that there were no alternative means of attending Jumu'ah.

In this case, the actions of Defendant Y clearly meets the factors under the Turner test. First, the visitation privileges were suspended as a result of a valid penological interest. A main concern of the penological system is safety, and while the Court has recognized that prisoners retain a right to freedom of association while incarcerated, that right is limited. Bazetta V., 286 F.3d at 324. The Court has recognized that prisoner's right to association in the form of visitation is subject to significant restriction. Bazetta v. McGinnis, 124 F.3d 774, 779 (6th Cir. 1997) (ruling that prisoners do not have a constitutional right to visits); Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (Due Process Clause does not guarantee inmate's interest in "unfettered visitation"); Block v. Rutherford, 468 U.S. 576, 589 (1984) (holding that pre-trial detainees are not constitutionally entitled to contact visits).

In the past, rehabilitation was a central concern when creating prison policy and regulations, and rehabilitation as a factor in reducing recidivism was of national concern. Since most offenders will eventually return to society, a paramount objective of the prison system is rehabilitation of those in custody. Pell v. Procunier, 417 U.S. 817, 823 (1974); Hardaway v. Kerr, 573 F.Supp. 419, 423 (W.D. Wis. 1983) (stating that rehabilitation was one of three penological goals that must be considered when analyzing First Amendment restrictions); State v. Stevens, 381 P.2d 100, 102 (Ariz. 1963) (reformation and rehabilitation of offenders rather than retribution are the important goals of criminal jurisprudence). Thus, in the case at hand, the suspension of visitation privileges is rationally related to a legitimate state interest.

Under the second prong of the Turner standard, there are alternate means for the inmate to exercise the right in question. Letters and phone calls to the restricted prisoners meets the second prong of alternative forms of expression for the inmate. Even though some inmates are illiterate and phone calls are short in duration and monitored by staff these means of expression are still considered adequate alternatives. But see Bazetta v. McGinnis, 148 F.Supp. 2d 813, 818 n.2 (E.D.Mich.2001) (Dr. Kupers, a psychiatrist who specializes in mental health, testified that some 40-percent of prisoners are illiterate, and sixty to eighty percent are functionally illiterate). Under the third factor of the.....