Opinion

Taylor v. Perini

477 F. Supp. 1289
1979 U.S. Dist. LEXIS 13173

Court: District Court, N.D. Ohio
Filed: Apr 9, 1979
Status: Published
Author: Young
On the bench: Don J. Young
Cited by: 2 cases
Authority: More cited than 71.3%

The opinion

ORDER

DON J. YOUNG, District Judge.

This action came to be heard upon the Sixth Report of the Special Master on the Defendants’ State of Compliance with the Court’s order of July 20, 1978. The parties have filed no objections to that report. The Court being fully advised in the premises, it is ordered that the report is in all respects confirmed. Said report is attached as an appendix hereto, incorporated herein by reference, and made a part hereof as fully for all intents and purposes as if set forth at length herein.

NOW, THEREFORE, FOR GOOD CAUSE SHOWN, it is hereby

ORDERED that the defendants conduct a review of the Chief Inspector’s performance as outlined in the Conclusion of the Sixth Report of the Special Master on the Defendants’ State of Compliance and that they perform all actions to which they have agreed in the letter which is included as Appendix C in that report.

IT IS FURTHER ORDERED that sub-paragraph 10(d)(2) of the Court’s order of

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July 20, 1978, be amended to read as follows:

Upon receipt of the notice, the Job Counselor shall post information concerning the vacancy on the next regularly scheduled working day in a central location or central locations which will inform all inmates of the opening. In addition, the information as to the opening should contain a detailed job description analysis or a reference to the Job Description Manual, which shall be readily available to all inmates. This vacancy notice shall be posted for at least three working days. All inmates shall be allowed to apply for the position on written application forms readily available to them, and these forms shall be submitted to the Job Counselor. The appropriate job assignment committee shall choose an inmate to fill the position from the top five senior inmates in prison seniority (as defined in part (e) below) who have applied. In the event that none of the five senior applicants for a job meets the basic requirements for the job contained in the Job Description Manual, the job assignment committee may select an inmate below the five senior applicants. In such a case, the job assignment committee shall fully document its decision.

IT IS FURTHER ORDERED that paragraph 10 of the Court’s order of July 20, 1978, be amended by the addition of the following language:

(h)

Involuntary job transfers

(1) A disciplinary job transfer is one which is effected as a result of a disciplinary infraction or poor work performance. Any job transfer which is based upon a disciplinary infraction may be approved only when the infraction is job related and manifests an inability on the part of the violator to function in the job in question.

(2) A disciplinary job transfer may be recommended only by the Rules Infraction Board or the inmate’s job supervisor. All such recommendations shall be approved or disapproved by the Reclassification Committee in the case of transfers within the stockade and by the Honor Dormitory Reclassification Committee in the case of transfers within the hon- or dormitory.

(3) A job transfer for medical reasons may be recommended by the institution physician. Such recommendations shall be approved or disapproved by the Reclassification Committee in the case of transfers within the stockade, and by the Hon- or Dormitory Reclassification Committee in the case of transfers within the honor dormitory.

(4) The provisions of this subparagraph shall apply to both intrashop and intershop involuntary job transfers.

(5) The Superintendent may order a non-disciplinary job transfer when he determines that an inmate must be transferred to protect the safety and security of the inmate, of other inmates, or of the staff. In such instances, the Superintendent shall forthwith provide the Job Counselor, the appropriate reclassification committee and the affected inmate with written notice of the inmate’s removal from his job as well as with reasons therefor. No copy of this notice will be placed in the inmate’s institutional records. The Job Counselor shall consult with the affected inmate and assign him to a job which is agreeable to the inmate. In the event that such agreement is not forthcoming, the inmate shall be permitted to lay in for a period not to exceed 15 working days, during which time he may bid on all inter-shop job openings which are posted. At the end of 15 days, if the inmate has not been assigned a job, the appropriate reclassification committee shall assign him to a job. In this event, the inmate may bid on any intrashop job opening in the shop to which he has been assigned as well as on any intershop job opening, and other bidding inmates shall not be

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given a preference over the transferred inmate because the latter has been on his new job for less than 90 days at the time of his bid. In all instances of involuntary transfer under this subparagraph, the inmate’s record regarding the transfer shall only reflect that the transfer was made, e.

g.,

“(date) — reassigned to (new job) from (former job).” Any involuntary transfer under this sub-paragraph shall be grievable.

IT IS FURTHER ORDERED that sub-paragraph 10(h) of the Court’s order of July 20, 1978, be renumbered 10(i) and that sub-paragraph 10(i) of the Court’s order of July 20, 1978, be renumbered 10(j).

The Court finds that the defendants have remained in substantial compliance with the provisions of the Court’s order of July 20, 1978. THEREFORE, FOR GOOD CAUSE SHOWN, it is

FURTHER ORDERED that the Special Master appointed in this cause on December 1, 1975, be dismissed.

SIXTH REPORT OF THE SPECIAL MASTER ON THE DEFENDANTS’

STATE OF COMPLIANCE

TABLE OF CONTENTS

Introduction.............................. 1291

Paragraph 4 Interference with Legal Mail .... 1292

Paragraph 5 Maintenance of Inmate Legal Services Program................. 1293

Paragraph 6 Provision of Supplies, Postage, and Photocopy Service in Connection with Legal Documents......... 1296

Paragraph 7 Censorship of Incoming Publications ....................... 1297

Paragraph 8 Imposition of Disciplinary Sanctions Without Fair Notice...... 1299

Paragraph 9 Correctional Cell Conditions..... 1304

Paragraph 10 Inmate Job Assignments....... 1307

Paragraph 11 Publication and Distribution of Staff Manual ................ 1313

Paragraph 12 Inclusion of Statement of Nondiscrimination Policy on Staff Job Descriptions and Employment Application Forms............... 1314

Paragraph 13 Staff Orientation............. 1314

Paragraph 14 Pre-hire Psychological Testing of Correctional Officers .......... 1314

Paragraph 15 In-Service Staff Training ...... 1315

Paragraph 16 Inmate Orientation............ 1316

Paragraph 17 Annual Audit by Chief Inspector 1317

Paragraph 18 Racial Balance in Housing Units 1318

Paragraph 19 Placing of Grievance References in Inmates’ Files.............. 1320

Paragraphs 20 and 21 Racial Discrimination, Harassment, ■ Intimidation, and Insult........ 1320

Paragraph 22 Resident Councils............. 1320

Paragraph 23 Inspector of Institutional Services 1326

Paragraph 24 The Chief Inspector........... 1328

Paragraph 25 The Grievance System......... 1328

Conclusion... ............................ 1334

Appendix A . ............................ 1335

Appendix B .. ............................ 1337

Appendix C .. 1386

INTRODUCTION

On July 20, 1978, the Court adopted the fifth report of the Special Master on the defendants’ state of compliance with the Court’s order of September 12, 1972.

On that same date the Court issued an order, based upon an agreement entered into among the parties to this litigation, which abrogated its earlier order and established new and precise standards against which to measure compliance.

In addition, the Court found that the defendants were in substantial compliance with the order of September 12, 1972, and ordered that the Special Master be dismissed “subject to his reviewing the state of the Defendants’ compliance with the Court’s final order in this

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cause and reporting his findings to the Court by December 31, 1978.”

Between July 20, 1978 and mid-December, 1978, the Special Master had little contact with members of the staff of Marion Correctional Institution as well as of the Department of Rehabilitation and Correction. He made no visits to the prison. He did receive and answer correspondence from inmates, but he generally made no effort to affect the defendants’ conduct regarding complaints which were brought to his attention.

On December 12,1978, the Special Master met with the departmental Chief Inspector in Columbus in order to review the activities of that office. During the following three days, he conducted an on site inspection in Marion. In this he was assisted by Mr. Fraser McAlpine, a former assistant, who made himself available for this purpose at the request of the Special Master. During this inspection, the Special Master and Mr. McAlpine interviewed a large number of staff members and inmates, met with both resident councils, and studied and copied voluminous records maintained in the prison. During every phase of this inspection, the Superintendent and his staff were both courteous and cooperative, and all requests for data and information were met promptly.

The Special Master conducted a second on site inspection on December 28-29, 1978. At this time he was assisted by Mr. Daniel Cron, a third year law student at The University of Toledo. The format for the second visit to M.C.I. was much like the first, and that trip permitted the Special Master to obtain more specific information which was needed as a result of his examination of the data and information gained two weeks earlier.

On January 1, 1979, Mr. Cron visited M.C.I. for the purpose of conducting an audit of law library holdings in the stockade and the honor dormitory. The report that follows is based upon the information gained during the course of these three trips and through examination of records maintained by the defendants and provided to the Special Master.

On February 15,1979, the Special Master issued a draft copy of this report to all counsel. The discussions and negotiations that followed resulted in some amendment and produced agreement regarding the appropriate steps to be taken to correct the deficiencies and to resolve the problems reflected in this report. Those steps are described in the conclusion of this report, p. 1334

infra.

The Special Master wishes to express his appreciation to Mr. McAlpine and to Mr. Cron for their assistance in conducting this review of the defendants’ state of compliance, and particularly to Mr. McAlpine for the role that he played in the preparation of the text of this report. Since his association with the Special Master in January of 1977, Mr. McAlpine has sustained a heavy burden of responsibility in connection with this case and has discharged that responsibility with exceptional professionalism and effectiveness.

The purpose of this report is to describe the defendants’ state of compliance or noncompliance with the Court’s order of July 20, 1978. The injunctive portion of that order commences with Paragraph 4 and concludes with Paragraph 25. Corresponding numbers have been utilized throughout the text of the report to identify the provision under consideration. Throughout the body of the report, the Special Master has related the information he learned during the course of his review, has recommended in some instances that the defendants take or be required to take certain actions to achieve a higher level of compliance, has suggested that several revisions be made of the language of the Court’s order of July 20, 1978, and has made findings regarding the defendants’ state of compliance with each paragraph of that order.

PARAGRAPH 4

Interference with legal mail.

Only three significant incidents of improper handling

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of incoming legal mail were reflected by logs maintained by the institution’s mail room personnel. In two of these cases, the envelopes bore return addresses of persons who identified themselves as attorneys, and letters of apology were sent by the Superintendent to these individuals. In the third case, the return address was simply “clerk” and the envelope bore the legend, “legal mail.” In this case it was not possible for the Superintendent to send a letter of apology without reading the letter, and he did not do so. Two other incidents reflected on the error log, the opening of letters addressed by inmates to attorneys and “returned to sender,” are explained by the fact that mail room personnel are not accustomed to legal mail in that form. No inmate complained to the Special Master of any incident of improper handling of legal mail not reflected by the institution’s error log.

In view of the large quantity of mail received at M.C.I. on a daily basis, the record of compliance with this provision of the Court’s order is remarkable.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with Paragraph 4 of the Court’s order of July 20, 1978.

PARAGRAPH 5

Maintenance of inmate legal services program.

The Special Master has discovered no evidence of interference, inappropriate sanctioning, or harassment of inmate law library clerks. Likewise, no other inmate has complained to the Special Master of such treatment resulting from efforts to assist another inmate in the preparation, conduct, or defense of legal actions.

Inmates are provided with a place to work on legal matters in both law libraries in the institution. Law library hours in the stockade are 5:30 p. m. until 8:15 p. m. on Monday through Friday, 9:15 a. m. until 10:45 a. m. and 12:30 p. m. until 3:15 p. m. on Saturday, and 1:00 p. m. until 3:45 p. m. and 4:30 p. m. until 8:30 p. m. on Sunday. Law library hours in the honor dormitory commence at approximately 5:30 a. m. and extend through 11:00 p. m., less two hours per day when the library is closed. In the stockade at least, if an inmate law clerk needs to work with an inmate during the latter’s normal working hours, the law clerk may request approval of a pass by the Director of Education, and such passes generally are approved. (Some difficulty has been encountered, apparently, when officers at the shop area crash gates have refused to honor these passes.)

At the time of the Special Master’s on site inspections of the institution in December, 1978, neither law library in the institution contained all of the law books required by this paragraph of the Court’s order. In an audit conducted on September 20 and 22, 1978, the Chief Inspector of the Department of Rehabilitation and Correction discovered that certain required law books were not present, and on September 28, 1978, the departmental Legal Services Assistant issued instructions to the Business Administrator at Marion Correctional Institution to order the missing volumes. According to the Business Administrator’s response of October 6, 1978, all of the mandated volumes had been ordered by that date. The volumes found to be missing and the action reported by the Business Administrator are as follows:

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Stockade Library

TITLE Action Taken bv Business Administrator

Volumes 273-299, Federal Reporter (2d series) Ordered August 30,1978

Volumes 180-199, Federal Supplement Ordered August 30,1978

Rules of Local Federal Courts Direct purchase order in process, October 6.1978

Current supplement for Title 29, Page’s Ohio Revised Code Direct purchase order in process, October 6.1978

Schroeder & Katz,

Ohio Criminal Law Practice and Forms

Ordered August 30,1978

Cohen,

Legal Research in a Nutshell

Ordered August 30,1978

Israel, LaFave, & Wayne,

Criminal Procedure in a Nutshell

Ordered August 30,1978

Sokol,

Federal Habeas Corpus

Direct purchase order in process, October 6.1978

Honor Dormitory Library

TITLE Action Taken bv Business Administrator

Volumes 273-299, 538, 539, Federal Reporter (2d series) Ordered August 30,1978

Volumes 180-199, Federal Supplement Ordered August 30,1978

Rules of Local Federal Courts Direct purchase order in process, October 6, 1978

Titles 1, 19, 21, 23, 25-27, 29, 37, 51-53 and current supplements as well as Appendix and Civil Rules volumes, Page's Ohio Revised Code Direct purchase order in process, October 6, 1978

Schroeder

Katz,

Ohio Criminal Law Practice and Forms

Ordered August 30,1978

Shepard’s United States Citations (“Ivory Special Intermediate” supplements and second part of 1978 Cumulative Supplement) Direct purchase order in process, October 6, 1978

Supplement to Palmer,

Constitutional Rights of Prisoners

Ordered August 30, 1978

Sokol,

Federal Habeas Corpus

No action indicated

The Chief Inspector conducted a second audit of the institution’s compliance on November 21, 1978. In his report of that audit, the Chief Inspector stated that

the required law books and updating supplements have been ordered, but only about half of the missing volumes have been received at the institution thus far. The remaining volumes are expected to arrive in the near future.

On January 1, 1979, the Special Master’s assistant conducted a survey of holdings in the two institutional libraries. As of that date the only materials listed above that had been received at M.C.I. were Schroeder & Katz,

Ohio Criminal Law Practice and Forms

(stockade and honor dormitory), Page’s Ohio Revised Code Annotated, Titles 1,19, 21, 23, 25-27, 29, 37, and 51-53 (honor dormitory), the current supplement for Title 29 of Page’s Ohio Revised Code Annotated (stockade), and the 1974 — 1978 statutory supplement (Ivory Special Intermediate) and the second part of the 1978 Cumulative

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Supplement to Shepard’s United States Citation. (Still missing in the honor dormitory is the 1976-1978 Ivory Special Intermediate case supplement to these materials.) In addition, it appears that the second edition of Sokol,

Federal Habeas Corpus

is the latest edition of that work, and both libraries contain a copy of this treatise.

In addition to the missing volumes disclosed by the Chief Inspector’s audit, the Special Master’s assistant found the following materials missing at the time of his inspection on January 1, 1979:

Stockade Library

42 United States Code Annotated §§ 1981-1984

Volume 574, Federal Reporter 2d series

Volumes 349-355, Northeastern Reporter 2d series (Ohio Cases)

Titles 25-27, Page’s Ohio Revised Code Annotated

Page’s Ohio Revised Code, up to date inserts for “Current Material” Binder

Honor Dormitory Library

Binder and # 4 Legislative Bulletin for “Current Material” of Page’s Ohio Revised Code Annotated

According to information received from Professor Rhoda Berkowitz, Associate Law Librarian at The University of Toledo, deliveries from major law book publishers should occur, in all but the most exceptional circumstances, within 30 days of the publisher’s receipt of the order.

Three inmate law clerks have been assigned to the stockade law library and two such clerks have been assigned to the honor dormitory law library. Stockade law clerks are permitted to assist inmates in the library itself and may go to the infirmary area to assist inmates requesting legal advice. They are not permitted, however, to have contact with inmates incarcerated in the correctional cell area in the institution.

Although a separate job classification exists for law clerks in the stockade, no such job classification appears in the honor dormitory job manual. Inmate law clerks in the latter unit are included within the general classification, “dormitory help.” As a result, under existing job procedures, it is possible for an inmate law clerk in the honor dormitory to be assigned by the dormitory maintenance supervisor to duties outside the law library. This possibility came to the attention of the Special Master when a general library clerk in the honor dormitory was assigned on a temporary basis to duties outside the library because of his classification as general dormitory help. In order to prevent the assignment of law library inmate clerks to other unrelated duties that may interfere with the level of legal assistance provided in that unit, law clerks in the honor dormitory should hold a separate job classification which limits their working activity to the law library. In addition, there is no reason for honor dormitory inmate law clerks to be denied specific job classifications as law clerks since this is the existing practice with respect to inmate law clerks in the stockade.

By and large, supplies of paper, pens and other necessary items are made available in the law libraries. Lengthy delays sometimes occur following an order, and requisitions for law library supplies examined by the Special Master reflect that numerous standard items often are out of stock. At the time of the Special Master’s on site inspection on December 13-15, 1978, adequate supplies were on hand in both libraries. This resulted, in all probability, from a memorandum dated December 6,1978, from the Legal Services Assistant of the Department of Rehabilitation and Correction to the Business Administrator at M.C.I.:

If the office supplies requested and ordered by the inmate law libraries have not yet been obtained from State Office Supply, take the necessary action to purchase the supplies and get them delivered to the law libraries this week.

This memorandum tends to confirm statements made by the inmate law clerks to the effect that necessary supplies often are not available at the time that they are ordered.

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FINDINGS REGARDING COMPLIANCE

No finding of substantial compliance with Paragraph 5 can be made until the defendants obtain all required legal materials for both law libraries. In addition, steps must be taken to maintain adequate supplies of paper, pens, typewriter ribbons, tape and other necessary supplies for the law libraries so that orders can be filled promptly. Finally, a separate and specific job classification for honor dormitory inmate law clerks should be developed and included in the honor dormitory job manual. In all other respects, the defendants are in compliance with the provisions of this paragraph of the Court’s order.

PARAGRAPH 6

Provision of supplies, postage, and photocopy service in connection with legal documents.

As was pointed out in the discussion of Paragraph 5,

supra,

supplies of paper are provided to the inmate law library clerks both in the stockade and in the honor dormitory. According to the individuals assigned to these positions, this paper is made available to inmates in the general population upon request so long as adequate supplies are available. On occasion, sufficient paper is reported not to be available, and requisitions for supplies for the two law libraries confirm this. Pens are supplied to the law libraries in very small quantities that are sufficient only to meet the needs of the law library clerks themselves.

A “legal kit,” consisting of one legal pad, five sheets of legal size carbon paper, 10 sheets of legal size, onion skin paper, 10 sheets of legal size, bond paper, five sheets of 8V2" by 11" carbon paper, 12 sheets of 8V2" by 11" bond paper, and a ball point pen, is for sale in both commissaries in the institution. The cost of the kit is $1.50. In a consent judgment entered by Judge Joseph Kinneary on June 28, 1978, in the case of

Cox v. Patterson,

C-2-75-661 (S.D.Ohio 1978), inmates at the Columbus Correctional Facility who earn or receive less than $5.00 per month

and

who do not have on deposit at any time during the previous 30 days more than $4.99 are entitled to one legal kit per month free of charge. On July 11, 1978, in a memorandum signed by the Director of the Department of Rehabilitation and Correction and his legal assistant, all managing officers — including Superintendent Perini — were informed that this policy would be applied throughout the entire department and that inmates eligible for free legal kits would also be provided with free postage for all documents or correspondence directed to a court of law.

All inmates at Marion Correctional Institution are assigned to jobs that result in monthly payments of $5.00 or more; thus, none are entitled to free legal kits or postage in accordance with the policy directive resulting from

Cox v. Patterson.

Nonetheless, since the Court’s order in

Taylor v. Perini

requires that legal supplies be made available on credit whenever the inmate is unable to pay for such supplies from his institutional account, the legal kit should be made available on credit to any inmate whose account balance at the time he seeks to make the purchase at the commissary is less than $1.50. By limiting an inmate to one legal kit per week on credit, the defendants are assured that sufficient funds will be credited from the next state pay to cover any accumulated indebtedness.

The availability of legal kits in both commissaries is mandated by Administrative Regulation 5120-9-48, and the departmental policy in this regard is confirmed by the policy statement directed to all managing officers on July 11, 1978. Availability of the kits generally should be regarded as a requisite for compliance with this paragraph of the Court’s order in

Taylor v. Perini.

The availability of these legal kits in the commissary, whether or not on credit, will not relieve the defendants of their obligation to continue to make available adequate quantities of paper and other supplies in the two law libraries in the institution.

Records submitted by the defendants indicate that postage, including certified and special delivery postage, continues to be made available on credit for the mailing of legal papers by inmates who do not have the necessary funds to purchase such post

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age.

Likewise, notarial service continues to be provided, without charge, by several staff members, and the Special Master received no significant complaints about the availability of this service. Finally, photocopy services are provided through an outside commercial photocopy company, and records submitted to the Special Master indicate that the service is being used on a regular and widespread basis by inmates. The cost of this service is $.12 per page, the usual and customary charge for such services in Marion, Ohio.

FINDINGS REGARDING COMPLIANCE

The defendants are in compliance with those portions of Paragraph 6 that require the provision of notarial services, postage, and photocopy services, without charge or on credit, for the preparation and mailing of legal documents and legal correspondence. With the implementation of the policy regarding legal kits discussed above, the defendants will be in full compliance with respect to the provision of paper, pencils, and pens as well.

PARAGRAPH 7

Censorship of incoming publications.

Between July 20, 1978 and December 1, 1978, the institutional Publications Review Committee considered 16 cases that were referred to it. In six of these cases, involving 10 publications, the printed material was excluded by unanimous vote of the committee; in four cases, the material was admitted (in three cases by a unanimous vote and,, in one case by a vote of two to one); in five cases, the material was sent out of the institution or destroyed at the inmate/recipient’s request without a hearing; finally, in one case one publication was excluded by a unanimous vote and one publication was admitted by a vote of two to one.

The following chart indicates the titles of excluded publications as well as the grounds for exclusion relied upon by the committee:

TITLE GROUNDS

Honkey Magazine Obscenity

215 Choice Men Obscenity

Best of Golden Boys Obscenity

Hard Boys Obscenity

Chicken Pickup Obscenity

Popular Mechanics (9/78) Inflammatory

Beaver Feaver Obscenity

Classy Asses Obscenity

Screw # 499 Obscenity

Hustler Magazine (10/78) Obscenity

Purple Magazine (10/78) Obscenity

All of the excluded materials had been sent out of the institution or destroyed by the time of the Special Master’s on site inspection in December of 1978. Many of the same titles, however, were evaluated by the Special Master in connection with previous reports, and it is probable that those publications that were excluded on the basis of obscenity fall within the guidelines promulgated by Paragraph 7 of the Court’s order. In the case of the September, 1978 issue of

Popular Mechanics,

the issue contained an article on the fabrication of weapons. For this reason, it was properly ex-cludable under the definition of “inflammatory” contained in the Court’s order of July 20, 1978.

The institutional committee consists of three staff members, only one of whom has primary responsibility in the area of custody. In all cases, the affected inmate received notice of the interim prohibition and the reasons therefor by the end of the working day following receipt of the material in the institution. In those cases in which hearings were held, they took place within one week of the receipt of the publication; indeed in virtually all cases the hearing was held within two or three days of receipt. Inmates were advised of their right to attend the hearing on the notice informing them of the interim prohibition, and in five cases the inmate did so appear.

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The institutional committee informed inmates of their right to appeal in all cases of exclusion and provided inmates with proper appeal forms upon request. Two exclusions resulted in appeals to the departmental Publication Screening Committee, and in both cases the exclusions were upheld. In both of these cases the departmental committee provided the affected inmate with notice of its decision on appeal within 28 working days of receipt of the appeal. Finally, all records of institutional committee actions are maintained in a file by the committee chairman, and a perusal of files of inmates involved in cases of exclusion satisfied the Special Master that no records of such committee proceedings are kept in any inmate’s file.

The Special Master feels some concern about the phenomenon of sending out or destroying printed material at the inmate’s request without a hearing which occurred in five cases. While the Special Master is satisfied that all of these inmates were made aware of their right to a hearing and that all waived such a hearing and requested the disposal of the materials, the institutional committee chairman must take care to be certain that the waiver in such cases is truly voluntary. The inmate should sign a written waiver in these instances and the committee chairman should schedule a hearing unless he is completely satisfied that the inmate’s decision is free of coercion, real or imagined.

In October, 1978, the Director of Social Services, who serves as chairman of the institutional Publications Review Committee, caused the departmental Publication Screening Committee’s “to be permitted” and “not to be permitted” lists to be posted in various locations within both the stockade and the honor dormitory.

The direction which accompanied these lists instructed personnel to forward to the inmate/addressee any publication on the “to be permitted” list and to forward to the Publications Review Committee any publication on the “not to be permitted” list. Although it appears that the “not to be permitted” list was being used only for the purpose of initial screening, the Special Master pointed out to the chairman of the Publications Review Committee that Paragraph 7(e) of the Court’s order of July 20, 1978, provides that such a list “shall not be

considered

by the Institutional Publications Review Committee in making its decisions.” (emphasis added) It was the opinion of the Special Master that this language prohibited any reference to the “not to be permitted” list by institutional officials charged with screening incoming publications. As a result, on November 6, 1978, the chairman of the institutional committee sent a memorandum to all affected staff requiring the removal of the “not to be permitted” list from bulletin boards throughout the institution. In the future, according to the committee chairman, the “not to be permitted” list will be destroyed upon its arrival in the institution.

Any possible reliance by M.C.I. officials upon the departmental “not to be permitted” list has been a matter of concern to the Special Master because the list continues to proscribe publications which are clearly admissible under the standards established by the Court’s order of July 20, 1978.

On October 24, 1978, for example, the item “personal pictures” was added to the list. Other proscribed publications include Knight’s

Black Voices from Prison, Freedom Now,

a publication of the Socialist Workers Party,

Lesbianism and the Women’s Movement,

and

Malcolm X Talks to

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Young People.

In the opinion of the Special Master, the emergence of a policy calling for the destruction of the “not to be permitted” list upon its arrival at M.C.I. is a fitting if somewhat ironic denouement.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with the provisions of Paragraph 7 of the Court’s order.

PARAGRAPH 8

Imposition of disciplinary sanctions without fair notice.

On September 7, 1978, the new inmate manual was distributed to all residents in the stockade; the new honor dormitory manual was distributed to residents in that unit on November 8, 1978. The purposes of these new manuals were to provide a comprehensive set of rules and to apprise inmates of the sanctions which are applicable to violations thereof. In addition, the new manuals contain a verbatim copy of the Court’s order of July 20, 1978.

In order to determine the extent to which these new manuals appeared to be providing notice of all offenses with which inmates are charged, the Special Master reviewed a large number of conduct reports issued under Class 11-16, “any act not specifically set forth herein, knowingly done which constitutes an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself,” Class III — 14, “aiding and abetting Class III rule violations” and Class III — 15, “violation of any other published institutional rules, regulations, or procedures.” All Class 11-16 and Class III — 14 conduct reports reflected alleged conduct that is proscribed in the inmate manual. The same is generally true with respect to Class III-15 conduct reports. In this category, however, a number of inmates were charged with and convicted of taking extra food in the stockade cafeteria. There is no reference to this subject in the cafeteria rules in the stockade inmate manual.

While it appears that the institution’s staff is making a conscientious effort to relate conduct reports to rules contained in the inmate manuals, the omission of any reference to extra helpings of food in the cafeteria rules points up the need to revise the manuals as needed and to post other written rules in areas where they will be seen by inmates. Particularly with the issuance of new administrative regulations outlining the nature of Class II and Class III offenses, as well as disciplinary hearing procedures, the need for updating has become all the more apparent.

In particular, these manuals — because they are the first effort of the administration to provide a comprehensive set of rules of conduct — contain occasionally misleading or incorrect information in spite of the sincere efforts of the Superintendent and his staff to achieve clarity and accuracy. A careful and thorough revision at this point is likely to produce a manual that will be usable for a substantial period of time.

One extremely serious violation of Paragraph 8 did occur during the period between the issuance of the Court’s order of July 20, 1978 and December 13, 1978, when the Special Master conducted the first of his two on site investigations. On December 5, 1978, an inmate in the honor dormitory delivered to a staff member an envelope addressed to an inmate in the stockade, with a request that it be delivered via interdepartmental mail. At or about the same time, the honor dormitory inmate sent a letter, via inter-departmental mail, addressed to the Chairman of the Stockade Resident Council. Both letters were intercepted by the Superintendent who, on December 6, 1978, sought and obtained from Director Denton permission to read the contents of the envelopes. The basis for the request for permission to read was as follows:

Several Honor Dorm inmates have informed us that certain Honor Dorm in

*1300

mates were going to circumvent our regulations in an effort to make us appear in a bad light when Special Master Vincent M. Nathan comes to the institution next week to make his final report on our compliance with

Taylor v. Perini.

We wish to examine the contents of these envelopes in an effort to forestall any difficulties in this area.

The envelope addressed to the Chairman of the Stockade Resident Council contained a copy of a letter written by honor dormitory inmates to the Superintendent announcing the resignation of the Honor Dormitory Resident Council.

The envelope addressed to another inmate in the stockade contained a copy of a publication entitled “The Jailhouse Lawyer’s Manual” as well as a personal letter from the honor dormitory inmate to the stockade inmate. The pertinent portion of the text of that letter was as follows:

I’m going to try to bring this grievance system to a stop out here, because it is not working and this is the only way that (I see) we can show the Court that it’s not working. If no inmate here at M.C.I. file grievance, then the Court is going to ask why?

And then we can say that it’s because the system do not work. I received a letter from Tripp today stating that if an inmate wants to file an appeal with the Chief Inspector, the appeal must go through his office. You know that I do not like this approach and I don’t think an appeal should have to go through Tripp’s officer if the inmate don’t want it to, we only have 5 days to appeal and Tripp can say he never received the appeal or anything else he want to say about the appeal. Like I sent him an appeal to mail to the Chief Inspector on 12/1/78 and he sent the appeal back today and stated that I would have to put a stamp on it and mail it myself, that cost-ed me two (2) days of my appeal time. I’m going to talk to (the Chairman of the Stockade Resident Council) about stoping the grievance system in there see what he thinks about it.

On December 19,1978, following the Special Master’s first on site inspection in Marion but before his second, a conduct report was prepared and issued against the honor dormitory inmate. Before issuing the conduct report, the Associate Superintendent for Treatment Services sought and obtained advice on the matter from a person serving as in-house counsel for the Department of Rehabilitation and Correction. Having been advised that, consistent with the Court’s order in

Taylor v. Perini,

the honor dormitory inmate could be charged with a disciplinary offense, the Associate Superintendent issued the following conduct report. Only the names of inmates referred to in the body of the conduct report are omitted.

At the above time and date Inmate _requested that Sgt. W. Robinson, MCI Mail Supervisor, deliver an envelope via inter-departmental mail to an inmate at MCI Main Stockade. The hand print-

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ed name was Mr.__The envelope was dated 12-5-78 and marked and circled “legal papers”. Inter-departmental mail had been used in the past to smuggle contraband into Correctional Cells and to solicit unauthorized business activity. Also, the named inmate (addressee),. had been cited by RIB for attempting to use the mails to send U.S. cash currency to a person in the State of New York. Sgt. Robinson brought the envelope to the Superintendent’s Office expressing his concern, as he felt something was not correct. On 12-6-78 Supt. Perini requested to view the contents of the envelope as the MCI Administration had received information that attempts would be made to discredit MCI and it’s attempt to continue compliance in Taylor vs. Perini C-69-275 prior to the audit of the Special Master Professor Vincent M. Nathan, who was scheduled to be at MCI on 12-13, 14, 15-78. The Director of DR & C gave permission to view the contents (note: 1st Class U.S. Mail Service was not involved). The envelope contained a 48 page manual entitled;

The Jailhouse Lawyer’s Manual,

a letter addressed to _, dated 12-5-78, indicating the address of Inmate_brother_in _, _ (who was involved with the paying for the making of jewelry boxes in violation of MCI Arts and Crafts Policy), the whereabouts of a typewriter and a categorical statement of the sender that he was going to try to stop the Grievance Procedure at MCI which was authorized by the Federal Court in Taylor vs. Perini and the Administrative Regulations of DR & C, specifically; AR # 5120-9-31. Specifically the writer stated he would try to stop the grievances at the Honor Dormitory and would (5th paragraph) talk to _ (Chairman of the Main Stockade Resident Council) about stopping the grievance system in the Main Stockade at MCI.

In addition to the material to _, another envelope was in the larger envelope containing a carbon copy of a letter sent to Supt. Perini by_under the date of 12-4-78 and was sent to Stockade Council Chairman- This carbon copy advised Supt. Perini that the Honor Dormitory Council had resigned their elected positions at the Honor Dormitory Affairs Council. It may be noted that in August of 1978 the Special Master in his 5th Report of Compliance, required of the MCI Administration to make the .grievance (system) work as well as the Inmate Councils at the Honor Dormitory and the Main Stockade. Based on the above information it is felt that Inmate _failed to follow the dictates of the Federal Court and higher authority, attempted to disrupt the operations of the MCI Grievance Procedure and attempted to enlist others into a scheme to establish a plan of action to show the Federal Court that the grievance system does not work at MCI. As the Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order, we are submitting the direction of the Special Master in his 5th Report on Compliance, page 71, section (8), paragraph 4;

“False accusations and statements by inmates or staff may be subject to disciplinary action when made in a knowingly, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated.”

The honor dormitory inmate was charged with violation of the following rules of conduct: Class II — 1 (Disobedience of a direct order, which shall include aggravated insubordination); Class 11-16 (Any act not specifically set forth herein, knowingly done which constitutes an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself); and Class 11-22 (attempt to violate a Class II rule). The Class II rule which the inmate was accused of attempting to violate was Class 11-21 (conspiracy to violate a rule of conduct).

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At this point it should be noted that on October 20,1978, an amended version of the Department’s Administrative Regulation 5120-9-06 prescribing rules of conduct was issued. In that amended version, Class lile became, “any act not specifically set forth herein, knowingly done which constitutes

an obvious

threat to the security

of or a disruption to the operation

of the institution, its staff, other inmates, or the inmate himself.” (new language emphasized).

At the time the conduct report in question was issued, these amended regulations had not been substituted for the former regulations contained in the inmate manuals, although the Special Master was told that the new regulations had been placed by that time in the two law libraries and in copies of the Administrative Regulations which are required to be kept in each of the housing units in the institution. In view of the fact that inmates were never notified that the language contained in their manuals was no longer controlling, they were entitled to rely upon the information contained in the manuals and were not required to double check that language against the text of the administrative regulations themselves.

This change of text is important because the conduct report itself describes Class II-16 as “an act knowingly done which could cause the disruption to the operations of the institution.” Apart from the fact that action which “could cause” a disruption should not be punishable under even the new text of the rule, the charging staff member’s reliance upon the amended language constitutes the clearest example of an attempt to impose a disciplinary sanction without fair notice of the rule which is alleged to have been violated.

On the same day that the conduct report was issued, the honor dormitory inmate was brought into the stockade for a hearing before a hearing officer. The inmate pleaded not guilty, claiming that “these were only his thoughts, not his intent.” The hearing officer referred the matter to the Rules Infraction Board with the notation that the charging staff member was to be present.

On December 21,1978, the honor dormitory inmate was brought before the Rules Infraction Board. He pleaded not guilty and summarized his own position as follows:

I am entitled to my own opinions and feelings. I felt the grievance procedure wasn’t working. I made the statement that just because we had a large number of grievances doesn’t mean it was working. I was just expressing my feelings of which I’m entitled to. I am not trying to stop the grievance system, I was just expressing my opinion.

The inmate was found guilty, apparently on all charges, and the Rules Infraction Board recommended that the inmate’s honor status be rescinded. Pending review by the Honor Placement Committee which reviews such recommendations, the inmate was assigned to a housing unit in the stockade. The inmate appealed to the Superintendent, who affirmed the decision of the Rules Infraction Board. At this point, the inmate filed an appeal with the Director of the Department of Rehabilitation and Correction. While that appeal was still pending and before any action had been taken by the Honor Placement Committee, the Special Master learned the facts which have been related above and discussed the matter with the Superintendent, the Chief Inspector, and special counsel employed by the Department for this litigation.

By no stretch of the imagination did the offending letters constitute disobedience of a direct order or insubordination. Apparently, the charging officer felt it was enough that the inmate “failed to follow

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the dictates of the Federal Court and higher authority”, and he grounded the institution’s authority to sanction such conduct on the following proposition:

As the Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order, we are submitting the direction of the Special Master in his 5th Report on Compliance, page 71, section 8, paragraph 4: ‘False accusations and statements by inmates or staff may be subject to disciplinary action when made in a knowingly, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated.’

The language referred to by the charging staff member is found in Paragraph 25 of the Court’s order of July 20,1978.

In fact that language relates to false accusations and statements made in the course of the utilization of the grievance process itself, and thus it is irrelevant to the issue at hand. “Giving false information or lying” constitutes a Class 11-24 offense, but the description in the inmate manual narrows the offense to “knowingly giving false, inaccurate, or misleading information to a member of the staff of M.C.I.”

Thus, as the charging staff member appears to concede in the text of the conduct report, any “false accusation” or “statement” made by the inmate in connection with the effectiveness of the grievance system appears not to be an act of disobedience or insubordination against officials at the prison. As for the suggestion that the “Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order,” one would have thought that the course and experience of this litigation would have taught high ranking staff members that the Court is more than able to assert its own authority when faced with disobedience by anyone of any of its orders. In the circumstances of this case, if the Superintendent believed that the actions of the honor dormitory inmate constituted a violation on the latter’s part of any provision of the Court’s order of July 20, 1978, the Superintendent’s appropriate course of action was to file a motion to show cause why the inmate should not be held in contempt. If, on the other hand, he feared that the inmate’s actions would result in the destruction of the inmate grievance system mandated by Paragraph 25 of the Court’s order, and thus in a possible charge of contempt against himself, the Superintendent should be assured that his inability to comply with any portion of the Court’s order, to the extent that such compliance is rendered impossible by inmates’ actions that are beyond the Superintendent’s control, would not be contumacious.

Likewise, it is clear that the inmate’s letters did not constitute an act which constitutes “an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself,” the relevant portion of the text of the Class 11-16 offense. Whether they might constitute an obvious threat of a disruption to the operation of the institution, etc., is beside the point, as this language was not sufficiently brought to the attention of the inmate population to permit sanctions to be imposed for violations thereof in accordance with Paragraph 8 of the Court’s order of July 20, 1978.

Finally, in view of what has been said above, the inmate could not possibly be guilty of an “attempt” to “conspire” to violate a rule of conduct, since the conduct to which he allegedly attempted to conspire would not, in itself, constitute a violation of a rule of conduct.

The Special Master shared these views with the Superintendent, the Chief Inspector, and special counsel and made it clear that he regarded the issuance of the conduct report, the finding of guilt, and the sanction recommended by the Rules Infraction Board to constitute flagrant violations of Paragraph 8 of the Court’s order. In the course of these discussions, the Special Master learned for the first time, that the mat

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ter of an appropriate response to the inmate’s action had been raised with in-house counsel within the Department of Rehabilitation and Correction, that the course of conduct pursued had been approved as nonviolative of the provisions of the Court’s order in

Taylor v. Perini,

and indeed that the language of the conduct report itself had been reviewed and approved by in-house counsel. For this reason and for no other, the Special Master went to great lengths to explain why he believed that this incident constituted an egregious violation of the Court’s order and urged the Superintendent and his special counsel to rectify the matter as best they could by withdrawing the conduct report, returning the inmate to the honor dormitory forthwith, and removing all references to the incident from the inmate’s file. Although somewhat perplexed by the conflicting opinion of lawyers on the subject, the Superintendent, upon advice of his special counsel, acquiesced and took the steps requested by the Special Master.

This incident has been described at such length because, in the opinion of the Special Master, it carried the potential of setting back enormously the progress which the parties have made in this litigation over the past three years. The advice of in-house counsel in Columbus, if followed, would have resulted, at a minimum, in a finding of noncompliance and a recommendation by the Special Master that continued monitoring of the defendants’ compliance be required. In view of the attitude displayed by the Superintendent, however, when the Special Master’s point of view was brought home to him, the Court may be inclined to treat the matter as a closed incident. Once before in the course of this lawsuit the advice and actions of in-house counsel threatened dire consequences to one of the defendants in this case. But for the availability of special counsel then and now, the outcome of relying upon such advice could have been most unfortunate.

Thus while it is the recommendation of the Special Master that the Court accept the corrective actions taken by the Superintendent as sufficient to indicate a continuing commitment on his part to comply with the substance of Paragraph 8 of the Court’s order, the defendants should understand that the Court’s acceptance of the Special Master’s recommendation, if that in fact occurs, will be a matter of grace rather than right.

FINDINGS REGARDING COMPLIANCE

The Special Master finds that the current inmate manuals are in need of revision and recommends that the Court require that revisions be made to cause the manuals to reflect current rules and practices and that revised manuals be distributed to all inmates no later than June 1, 1979. Otherwise, apart from the incident described at length in the immediately preceding portion of this report and for the reasons stated therein, the Special Master finds that the defendants have remained in compliance with the provisions of Paragraph 8 of the Court’s order of July 20, 1978.

PARAGRAPH 9

Correctional cell conditions.

By and large, the defendants have maintained the conditions in the correctional cells which are mandated by this provision of the Court’s order. Inmates incarcerated in these cells have received normal institutional meals, although several complained that food is cold by the time it is served. Adequate clothing, bedding, toilet facilities and toilet articles are provided on a routine basis. The library book cart makes daily rounds to these cells, and inmates enrolled in educational programs are permitted to keep their textbooks. Normal mail privileges are provided. Clergymen and social services personnel are permitted to visit the area, and log books reflect that such visits in fact are made. While no attorneys have actually visited in this area, the Special Master has received no reports that access to attorneys is denied inmates held in these cells. The light is adequate for reading during the day, and, although the area is never completely dark at night, the lighting is sufficiently subdued to permit sleeping. Final

*1305

ly, inmates in the correctional cells are given an opportunity to exercise at least once every third day.

Only three of the eleven subparagraphs of Paragraph 9 require further discussion. Subparagraph 9(a) proscribes the incarceration of an inmate in a correctional cell for a period exceeding 15 days or for a total of more than 30 days within a six months period. Either of these limits may be exceeded only when an inmate’s transfer to another correctional institution has been approved by the Department of Rehabilitation and Correction. The purpose of the exception is to permit the inmate to be confined in a correctional cell pending transfer to a maximum security institution and to avoid the necessity of placing such an inmate in the general population after a decision has been made (and approved) that he is not amenable to medium security classification.

Apart from instances in which an inmate has been held awaiting transfer to another institution, the defendants have complied with the requirements of this subparagraph. In one instance, however, involving a person whose transfer had been approved by the Department, the defendants misunderstood the purpose of the exception and utilized it incorrectly.

In this instance an inmate was apprehended after escaping from M.C.I. and the Rules Infraction Board recommended his transfer to maximum security. The recommendation was approved. Subsequently, however, the State of Ohio moved to prosecute the inmate on charges of escape as well as others, and he was held in a correctional cell at M.C.I. from July 24 until August 23, 1978, pending arraignment.

As the Special Master pointed out to the Chief Inspector when this situation came to the former’s attention, the purpose of the exception to the general rule in subparagraph 9 is not to permit an inmate to be held in a correctional cell at M.C.I. for a long period of time awaiting arraignment or any other legal proceeding; rather, it is intended to account only for a brief delay which may occur in physically transferring from M.C.I. a prisoner whose transfer to another institution has been approved at the departmental level. In the case in hand, the defendants should have held the inmate in a maximum security institution pending his arraignment and brought him to Marion only when his appearance in court was required.

Subparagraph 9(d) requires that normal medical care be provided to all inmates housed in correctional cells and that a medically trained staff member make rounds of the correctional cells at least once during the course of the first and second employment shifts. The Special Master inspected log books maintained in the correctional cells and determined that medical rounds have been made at least once during the first and second shifts of each day. Indeed, most often, such rounds were made as well on the third shift.

Additionally, however, this subparagraph requires that prescription medication be dispensed in the correctional cell area by medical rather than correctional personnel. While the defendants generally have complied with this standard, there has been some deviation. For an undetermined period of time on one shift, the only medically trained staff person was female, and during this time prescription medication was passed to men in the correctional cells by a correctional officer. On some occasions it may be that the pharmacist performed this function and on others that inmates held in

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correctional cells were brought by the officer out of the cell area into an entrance way where the paramedic dispensed medication. According to persistent and reliable reports from inmates, however, there were other occasions upon which medication was passed directly to the inmate in his cell by the correctional officer on duty.

On December 18, 1978, the Superintendent issued an order to the Infirmary Director that the pharmacist dispense prescription medication to correctional cell inmates when only the female paramedic is on duty; in the absence of the pharmacist, the Superintendent ordered that the inmate be brought from his cell to the entrance way where such medication will be dispensed by the female paramedic. This order was confirmed to infirmary staff by the Infirmary Director on December 22, 1978. If these orders are followéd, the problem should not recur in the future.

Finally, the defendants have not adhered to the provisions of subparagraph 9(k) requiring that a correctional officer or other staff member be present within the correctional cell area except for brief, temporary absences or during emergencies and that each occupied correctional cell be visually inspected at least every 30 minutes. The Special Master received reports that the officers assigned to the correctional cell area spent considerable periods outside of that area, particularly during the second and third employment shifts. In order to investigate those reports the Special Master obtained copies of the institution’s Daily Report Sheets for September and November, 1978, which indicate the assignment of individual officers to particular areas within the institution. During those months there was only one instance when an officer was not assigned to the correctional cell area. On all other occasions a correctional officer was given the correctional cell area as his primary responsibility.

Conversations with the Superintendent and the Associate Superintendent for Custody disclosed, however, that the correctional officer assigned to the correctional cell area often was given other duties. Three exigencies

regularly

required the officer assigned to the correctional cell area to leave his post and to assume other duties. First, during the second shift, pill-call is held, and because frequently no one is assigned to the pharmacy at that time, the officer covering 6 cellblock (the housing area opposite the correctional cells) or the correctional cells is called upon to supervise the passing of medication. The remaining officer then must cover both areas. Second, during the second and third shifts, the officers receive their own meals from a food cart which commonly is attended by an officer assigned either to 6 cellblock or to the correctional cell area. Again, the remaining officer then must assume surveillance of both areas. The Superintendent stated to the Special Master that this condition never lasted more than “a couple of hours.” Third, when an officer became ill or needed to leave the institution for some other reason, he often was relieved by one of the officers assigned to either 6 cellblock or the correctional cells. This too requires “double locking.” Because the door to the correctional cell area always is kept locked and is virtually soundproof, the assignment of any other duties to the officer stationed in the correctional cell area is inconsistent with the requirements of subparagraph (k).

It must be noted that during the last six months of 1978 the institution was substantially understaffed, partly because of the problems related to the administration of the MCOPI.

See, infra

at pp. 1314-1315. This required one officer to be assigned frequently to more than one post. Because the Court’s order specifically requires continuous and generally uninterrupted staffing of the correctional cell area, however, the defendants may not continue to utilize the officer assigned to that area to perform other functions. Persistent understaffing does not constitute the “emergency” contemplated by the language of subparagraph 9(k), and it is clear that the officer’s absence has been more than a “brief, temporary” one in many instances.

FINDINGS REGARDING COMPLIANCE

The Special Master finds that while the defendants have remained generally in

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compliance with the provisions of Paragraph 9 of the Court’s order of July 20, 1978, steps must be taken to insure that the surveillance mandated by subparagraph 9(k) in fact occurs. In addition, the Superintendent’s order relating to the dispensing of prescription medication in the correctional cell area must be adhered to literally. Finally, the defendants must be careful to avoid expanding the transfer exception contained in subparagraph 9(a) beyond the situation for which it was intended.

PARAGRAPH 10

Inmate job assignments.

Between June 1, 1978 and December 1, 1978, 594 job changes were effected through the procedures established by this paragraph of the Court’s order. Of these, 206 were intershop transfers in the stockade, 192 were intrashop transfers within the stockade, 153 were intershop transfers within the honor dormitory, and 43 were intrashop transfers within the honor dormitory. In addition, new inmates entering the institution during this period were assigned to their initial jobs through the new job assignment procedure.

Since the implementation of these procedures in November, 1977, 1167 job changes have been approved. Of these, 404 were intershop transfers within the stockade, 437 were intrashop transfers within the stockade, 252 were intershop transfers within the honor dormitory, and 74 were intrashop transfers within the honor dormitory. In spite of initial resistance by some inmates and job supervisors, the new system has taken hold and become an institutional fixture. What is more, the procedures are accomplishing their intended effect of eliminating arbitrariness and discrimination in the job assignment and removal processes. The success which has been achieved is to a very large extent attributable to the outstanding commitment and effectiveness of Mr. Gary Mohr, who became Job Counselor when the new procedures were initiated. All job assignments are coordinated by Mr. Mohr whose duties relate exclusively to the job assignment system. The four job assignment committees have operated effectively within their respective areas of responsibility. All are properly constituted except for the Stockade Reclassification Committee which has no representative from the Special Services Department; in place of such a representative, a staff member from the education department sits on that committee. This trivial deviation, in the opinion of the Special Master, is of no significance.

One serious instance of breakdown with respect to the activities of the job assignment committees has come to the attention of the Special Master. On March 23, 1978, an inmate assigned to the paint shop in the stockade received a conduct report alleging the offense of fighting with a weapon. Apparently because the charges were based upon reports of other inmates rather than the personal knowledge of the charging officer, the Rules Infraction Board found the inmate not guilty on March 27, 1978. On the same day, however, the inmate’s job supervisor requested that he be “laid in,” i. e. kept in his housing area during the normal work period. The reason for the request was some concern on the part of the work supervisor that other inmates in the paint shop would attempt to “get even” with the inmate who had received the conduct report. On April 17, at the job supervisor’s request, the inmate appeared before the Stockade Reclassification Committee and was reassigned from the paint shop to the roofing gang.

The following entry was made on the inmate’s permanent record:

Reclass — Out slip for security of the institution. Should be placed away from the Paint Shop. Assign to Roofing Gang. Right of appeal explained.

This action was taken over the objections of two of the three members sitting on the Stockade Reclassification Committee. Apparently, following the initial interview of the inmate, the committee met,

in camera,

and two members of the committee felt that there were no substantiating grounds for transferring the inmate against his wishes. Nevertheless, the inmate was called back into the room and informed by

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the Chairman of the committee that he was being transferred to the Roofing Gang.

The inmate filed a grievance with the Inspector of Institutional Services on May 1, 1978. Dissatisfied by the decision of the Inspector to the effect that the actions of the Reclassification Committee had been proper, the inmate appealed to the Chief Inspector who likewise offered no relief. It should be noted that at neither level was the critical issue of the chairman’s overriding of his fellow committee members treated, and this is true in spite of the fact that at least one of the objecting committee members brought all of the facts to the attention of the institutional Inspector. On August 9, 1978, after it was clear to all concerned that the Special Master was aware of and interested in the incident, the Inspector of Institutional Services caused the following entry to be made in the prisoner’s record:

NOTICE

The Reclass action of 4-17-78 is not to be construed as a disciplinary action. It is to be viewed as protection for inmates due to the physical attacks upon paint shop personnel.

In spite of further efforts by the inmate to obtain relief through the office of the Inspector of Institutional Services and that of the Chief Inspector, no steps were taken to remedy this obvious violation of Paragraph 10(a)(2) of the Court’s order of July 20, 1978, which provides, “In the stockade, job transfers shall be made by the Reclassification Committee.”

The committee which was convened to hear this matter consisted of the chairman, the inmate personnel officer, and the job counselor. Because the job counselor is a non-voting member of the committee, only two voting members were present. Missing were representatives from the Psychological Services Department and a representative from the Social Services Department. Having convened a rump committee, the chairman proceeded to override the majority on the theory that he had the inherent authority to reclassify an inmate for the security of the institution. In point of fact he has no such authority.

Following discussion in December, 1978, between the Superintendent and the Special Master, the inmate was brought up for review again by the Stockade Reclassification Committee. The chairman disqualified himself and the committee voted by a vote of four to zero to retain the inmate on the Roofing Crew. This resulted apparently from the desire of the inmate to remain on his present job assignment. The following entry was made on the inmate’s permanent record:

Reclass action taken on 4/17/78 reviewed. Comment entered 8/2/78 reviewed. Stress was made of transfer

not

being disciplinary. (The inmate) prefers to stay on roofing crew and not return to paint shop. Committee votes 4r-0 to retain on roofing crew.

In view of the inappropriate nature of the proceedings which led to the inmate’s original reassignment (at which point he would have preferred to remain in the paint shop), he continues to feel that the original and second entries on his permanent record are prejudicial. Apparently he would be satisfied by an entry to the effect, “4/17/78 — reassigned to roofing crew from paint shop — non-disciplinary transfer.” •Under the circumstances, the request seems to be a reasonable one, particularly in view of the fact that these records are available to the Parole Board at the time of parole hearings. The Special Master believes that the Inspector of Institutional Services ought to be able to accomplish this modest objective.

In addition to constituting a serious breakdown of the procedures for reassignments by the Reclassification Committee, this incident points up the need for revision of the Court’s order of July 20, 1978, to delineate the grounds and procedures for job removal. Paragraph 8(c) of the Court’s original order of September 12, 1972, provided that

Job assignment, transfer and removal shall not be employed for punitive purposes, and shall not be related to discipline for rule infractions except insofar as such infractions are job related and

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manifest inability on the part of the violator to function in the job in question.

Paragraph 8(d) went on to require “defined procedures for making job . . . removals according to the specified substantive criteria, which procedures shall not allow for deference to the wishes of job supervisors or fellow inmates.”

No language implementing these objectives appears in the Court’s order of July 20, 1978, and this omission appears to have been one of oversight. At the time of his initial report to the Court, the Special Master pointed out that disciplinary job transfers were being effected by the appropriate job assignment committees on the basis of (1) recommendations by the Rules Infraction Board following a conviction and (2) recommendations of job supervisors.

At the present time, recommendations for disciplinary job transfers continue to emanate from these two sources, although approximately 40% of the requests by job supervisors and the Rules Infraction Board for disciplinary or work performance related transfers are being refused by the appropriate reclassification committees. In order to institutionalize procedures that will accomplish the objectives of the Court’s original order in this case, the Special Master recommends the addition of a new subparagraph (h) to Paragraph 10 of the Court’s order of July 20, 1978:

(h)

Involuntary job transfers

(4) The provisions of this subparagraph shall apply to both intrashop and intershop involuntary job transfers.

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tee shall assign him to a job. In this event, the inmate may bid on any intrashop job opening in the shop to which he has been assigned as well as on any intershop job opening, and other bidding inmates shall not be given a preference over the transferred inmate because the latter has been on his new job for less than 90 days at the time of his bid. In all instances of involuntary transfer under this subparagraph, the inmate’s record regarding the transfer shall only reflect that the transfer was made, e.

g.,

“(date) — reassigned to (new job) from (former job).” Any involuntary transfer under this sub-paragraph shall be grievable.

With the addition of this subparagraph, the present subparagraph 10(h) should be re-designated 10(i) and the present subparagraph 10(i) should be re-designated 10(j).

All initial job assignments continue to be made by the Classification Committee and the Honor Dormitory Placement Committee. Such assignments are made to specific jobs rather than shops, and the inmate’s job assignment is reflected on the daily inmate transfer sheets that are circulated to job supervisors and others throughout the institution.

Most job supervisors are utilizing intrashop transfer procedures to fill vacancies in their shops; only rarely, according to the Job Counselor, is such a vacancy posted for intershop bidding. In only two instances have inmates not among the top five in seniority bidding on the job been assigned to jobs through intrashop procedures. In one of these instances numbers five and six in seniority were selected in order to correct racial imbalance; in the second, the sixth inmate in seniority was selected because three of the top five in seniority did not meet a basic qualification for the job. In two instances, the choice made by the job supervisor has been disapproved by the appropriate job assignment committee. In one of these, the reason for the disapproval was that the job supervisor had selected the sixth inmate in seniority from among those bidding, and the committee was not satisfied that there were sufficient reasons for deviating from the usual seniority requirement. A substantial amount of the Job Counselor’s time is spent supervising and reviewing records of these intrashop transfers, and it appears to the Special Master that the system is working substantially as it was intended to.

Intershop transfers appear to be being posted properly, and all assignments have been made from among the five bidding inmates with highest seniority. The only exceptions to this have occurred when more than five inmates have been required for a particular job.

In view of the experience gained over the past year, it appears that “skilled” jobs, like others, are being filled from among the top five in seniority bidding for the job. For this reason, it is the recommendation of the Special Master that the provisions of Paragraph 10(d)(2) of the Court’s order of July 20, 1978, permitting selection of an inmate below the top five in seniority in the case of “skilled” positions, be deleted from the order. The process for selecting an inmate below the top five in seniority is cumbersome and adds to the complexity of what is already a complicated process. Therefore, the Special Master recommends the deletion of the following language from Paragraph 10(d)(2) of the Court’s order of July 20, 1978:

unless the job has been designated as a ‘skilled’ job. If a job is designated as a skilled position in the Job Description Manual, the job assignment committee shall have the authority to choose an indi

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vidual from outside the top five senior applicants. In such a case, however, the job assignment committee shall specifically state in its records why the job constitutes a skilled position and the reasons for selecting the particular inmate.

In place of this language, the Special Master recommends the addition of the following:

In the event that none of the five senior applicants for a job meets the basic requirements for the job contained in the Job Description Manual, the Job Assignment Committee may select an inmate below the five senior applicants. In such a case, the Job Assignment Committee shall fully document its decision.

One advantage to be gained from this change is the elimination of the need to classify certain jobs as “skilled” in the Job Description Manual. The current designations were made more with a view toward appropriate pay scale than the practical requirements of the job. In those instances in which particular skills are required for a job, these skills are designated in the individual job description.

The new job assignment system has been largely successful in eliminating racial imbalance in jobs and shops throughout the institution. As of October 23,1978 all shops but one within the institution reflected the racial balance of the institutional population ± 20%. The exception was the identification department in the stockade where five black inmates and one white inmate were assigned. Of 255 job classifications, only 19 failed to reflect the mandated racial balance. In the stockade, where the racial balance was 57% black and 43% white, the imbalanced shops were the following:

Shop and Job # Black # White > Black , White i Deviation

Automobile Mechanics School-Porter 25 75 32

Cafeteria-Pot & grill worker 33 67 24

Cafeteria Creamery worker 0 100 43

Cafeteria-Vegetable room 0 100 43

Cafeteria-Bakery 100 0 43

Cafeteria-Pan room 87 13 30

Cell Block-Porter 33 67 24

Furniture Factory-Porter 100 0 43

Furniture Factory-Machine helper 78 22 21

Furniture Factory-Desk & Chair Assembler 6 12 33 67 24

Furniture Factory-Handsander 5 1 83 17 26

Paint Shop-Painter 3 7 30 70 27

Program Office Clerks-JayCee Cameraman 0 5 0 100

Safety & Sanitation-Hall porter 21 5 80 20 23

Sheet Metal-Cabinet assembler 12 3 80 20 23

Sheet Metal Annex-Welder 1 3 25 75 32

In the honor dormitory, where the racial balance was 62% black and 38% white, the imbalanced shops were the following:

Shop and Job # Black # White ) Black , White > Deviation

Cafeteria-Cook 100 38

Honor Dormitory Help-Dorm porter 5 83 17 21

Validation Plant-Inspector 13 87 13 25

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According to the Job Counselor, while every quarterly report reflects racial imbalance in some shops and jobs, the affected areas change from one reporting period to another. These quarterly racial breakdown reports are prepared by the Job Counselor and distributed to the various job assignment committees, and these committees

Shop Job Number of Positions Designation

Safety & Sanitation Front Office Porter 8 semi-honor

JayCee Cameraman 1 semi-honor

Arts & Crafts Clerk 1 honor

Administrative Packages Carrier 2 honor

take steps to eliminate racial imbalance through their ongoing job assignment activities.

Only four job classifications within the stockade have been designated as requiring honor or semi-honor status. These are the following:

Three job classifications within the honor dormitory have been designated as “special security” positions. These are the following:

Shop Number of Job Positions

Garage Columbus milk run driver 1

Witzel’s Gang Driver 1

O.P.I. Driver 2

Thus it appears that the Superintendent has been entirely reasonable in designating jobs requiring special security status and that no effort has been made to utilize this procedure to avoid the normal operation of the job assignment system. These “special assignments” have been filled in accordance with the usual procedures, except that the Superintendent has exercised his power of approval or disapproval before the assignment actually has been effected.

As required by subparagraph 10(h), the Inspector of Institutional Services has exercised jurisdiction over several grievances involving job supervisors or the Job Counsel- or. Likewise, the honor dormitory and stockade reclassification committees have been performing annual reviews as part of their ongoing committee activity. There has been no general updating of job descriptions in the Job Description Manual, and, according to the Job Counselor, this should be done in the near future. Finally, no job supervisor has been subjected to discipline under subparagraph 10(i) of the Court’s order. Verbal and written communications between the Job Counselor and job supervisors apparently have been sufficient to maintain compliance on the part of the job supervisors. In only one case was it necessary for the Job Counselor to ask the Chairman of the Stockade Classification Committee to intervene, and that action was effective.

Two matters remain to be discussed in connection with this paragraph of the Court’s order. First, it appears that the level of education enrollment has fallen far short of that projected by the Director of Education Department at the time of the expansion of the Education Department staff in June of 1976. At that time, the Director of the Education Department projected that 380 inmates would be engaged in full-time educational programs consisting of vocational, GED, College, and adult basic education courses.

The purpose of this expansion was to decrease the extent of featherbedding present in the institution in order to lay the groundwork for the development of a rational job assignment system as required by the Court’s order of September 12,1972.

The most recent figures submitted to the Special Master by the Director of the Education Department indicate that 230 inmates are involved in educational program

*1313

ming, of which only 189 are engaged in full-time educational programs. Thus the expansion of the education program which was projected to result in 262 fewer inmates in need of regular jobs

has in fact only produced 71 such persons. In the opinion of the Special Master, steps can and should be taken at M.C.I. to develop educational programming that will absorb more inmates and thus reduce the size of the inmate labor force. It was, after all, for this purpose that more than $73,000 was made available to M.C.I. by the Department of Rehabilitation and Correction.

Finally, it is clear to the Special Master that the office and person of a single unassisted Job Counselor are being overtaxed by the demands of the new job assignment procedure. Unfortunately, it is not feasible for the Job Counselor, like other senior administrators, to employ an inmate clerk. The reason for this is that the employment of an inmate clerk will lead to suspicions, at least among some of the general inmate population, that job assignments can be purchased. Based upon a careful evaluation of the activities of the Job Counselor over the past year, it is the conclusion of the Special Master that the entire system is in danger of falling under its own weight, and that this can be eliminated only by the assignment of a full-time assistant to the Job Counselor. This conclusion is reinforced by the obviously inadequate record keeping that occurred during the period that the Job Counselor was on vacation and away from the institution because of illness.

For this purpose, the Special Master recommends that the Department of Rehabilitation and Correction provide funds for the hiring of a person to act as assistant to the Job Counselor. The duties of such a person will not be primarily secretarial, and for that reason the assistant should have abilities other than clerical ones. It may be possible to employ such an assistant as an intern and to attract a college student from the Marion area who would be interested in entering corrections as a career. Whatever the source of the assistant, however, it is the belief of the Special Master that his employment at the earliest possible opportunity is essential if the job assignment system is to continue to operate in the manner contemplated by the Court.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that, apart from the incident regarding the involuntary transfer of an inmate from the paint shop to the roofing gang that is discussed above, the defendants have remained in substantial compliance with the provisions of Paragraph 10 of the Court’s order of July 20, 1978. In order to improve the operation of the job assignment system, the amendments to the procedure recommended above should be effected. In addition steps must be taken to implement educational programming which will reduce the size of the inmate labor force, as projected by the Director of the Education Department in 1976. Finally, the Special Master finds that continued compliance at the level demonstrated by this report will require the assignment of a staff member to serve as assistant to the Job Counselor.

PARAGRAPH 11

Publication and distribution of staff manual.

As of December 1, 1978, all staff members had been given a copy of an M.C.I. staff manual containing written rules prohibiting racial discrimination, harassment, intimidation and insult, coupled with sanctions for their violation. In addition, these employees received a diminutive but readable verbatim copy of the Court’s order which is to be stapled to the back inside cover of the manual. When a new staff manual is published, the Court’s final order in

Taylor

should be incorporated into the body of the manual itself.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants are in full compliance with the provisions of this paragraph of the Court’s order of July 20, 1978.

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PARAGRAPH 12

Inclusion of statement of nondiscrimination policy on staff job descriptions and employment application forms.

The language mandated by the Court’s order appears on all position descriptions utilized by M.C.I. In addition, a copy of the language is stapled to Civil Service Exam Interest Form and the State of Ohio Employment Application that must be completed by all job applicants. The language does not appear on the employment application form itself because this uniform application form is utilized for all state employment purposes.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with this provision of the Court’s order of July 20, 1978.

PARAGRAPH 13

Staff orientation.

All new employees at M.C.I. participate in a week-long orientation program directed by the Training Officer. In the course of this program, employees are exposed to the principles embodied in the Federal Equal Employment Opportunity Act and are apprised of their obligation to refrain from racial discrimination, harassment, and insult against fellow staff members and inmates. The sanctions that will be imposed for such behavior are explained.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with the requirements of this paragraph of the Court’s order of July 20, 1978.

PARAGRAPH 14

Pre-hire psychological testing of correctional officers.

In the fall of 1978, following the Court’s issuance of its order of July 20 of that year, difficulties encountered in the frequent and regular scheduling of the Marion Correctional Officer Psychological Inventory resulted in a critical shortage of correctional officers at M.C.I. Between mid-September and the end of October, the shortage ranged from 27 to 30 correctional officers. This figure takes on concréte meaning when it is compared to the standard component of 35 correctional officers on duty per shift at the institution. In addition, because of his concern that certain federally funded positions might lapse because of the inability of the institution to fill them within 60 days of the occurrence of a vacancy, the Superintendent requested permission to waive the pre-hire administration of the MCOPI with respect to individuals seeking these positions and to test them after they commenced their employment. The Special Master felt constrained to deny this request in view of the importance attached to pre-hire administration by the psychologists who developed the MCO-PI, and he so informed the Superintendent on October 6, 1978.

These difficulties occurred in spite of the issuance of the Opinion of the Attorney General 78-044 on June 27, 1978, authorizing the Department of Administrative Services to permit employees of the Department of Rehabilitation and Correction to administer the MCOPI on site at M.C.I. At no time has the Department of Administrative Services relinquished its direct control over the administration of the test. No objection could be made to this but for the fact that the Department of Administrative Services failed to administer the test sufficiently frequently at Marion to permit the institution to meet its hiring needs.

After correspondence between the Special Master and the Chief Counsel to the Attorney General, procedures were developed to remedy this problem. As of mid-December, 1978, the MCOPI was being administered twice per month in Marion by employees of the Department of Administrative Services. The number of unfilled correctional officer positions at that time had fallen to 15 and the Personnel Officer at M.C.I. believed that the new schedule for administration of the test would be sufficient to meet M.C.I.’s needs.

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With the exception of former employees who are reinstated and correctional employees transferring to M.C.I. from another of Ohio’s prisons, all incoming entry level custody personnel are hired from a Certification Eligibility List prepared by the Department of Administrative Services. This list, in turn, consists exclusively of persons who have achieved a satisfactory score on the MCOPI. Several former employees, certified under the Civil Service test which preceded the MCOPI, have been employed during the past six months, as has one certified correction officer employed at another prison in Ohio. That person too was certified under the former Civil Service test. Thus it appears that no effort is being made by the defendants to circumvent the use of the MCOPI by hiring large numbers of former employees or transfer applicants. Indeed, in two cases, former employees at another institution were not reinstated for the purpose of permitting them to transfer to M.C.I. because it was felt that they would not be satisfactory employees. These persons, had they wished to obtain employment at M.C.I., would have been required to take the MCOPI.

According to a report received by the Special Master from Mr. Norman Peterson of Personnel Decisions Research Institute, the longitudinal empirical validity study which commenced in the late fall of 1977

is progressing satisfactorily. At this time some 280 correctional officers at correctional institutions other than M.C.I. have-taken the test battery, which includes the MCOPI psychological component as well as several other batteries. P.D.R.I. is proceeding to collect criterion ratings for these persons in order to determine the extent to which performance on the test appears to be predicting accurately on-the-job behavior. In general, Mr. Peterson reported that P.D.R.I. has received cooperation both at the departmental and at the institution level, although some difficulties in developing the necessary data have been experienced in at least one institution. According to Mr. Peterson, several superintendents are enthusiastic about the prospect of the adoption of the new test in place of the existing Civil Service test that is being used for employment at all of Ohio’s prisons other than M.C.I. pending the outcome of the validation study.

The target date for completion of the longitudinal empirical validity study is October 1, 1979, but P.D.R.I. will ask for an extension of approximately three months in order to prepare its final report. The Special Master recommends that the defendants be required to submit to the Court a copy of this report when it is received.

FINDINGS REGARDING COMPLIANCE The Special Master finds that the defendants are in full compliance with the requirements of Paragraph 14 of the Court’s order of July 20, 1978, but that they should provide the Court with a copy of the completed final report of the longitudinal empirical validity study being prepared by Personnel Decisions Research Institute.

PARAGRAPH 15

In-service staff training.

Following the Court’s adoption of the Special Master’s fourth report, Director Denton and Superintendent Perini agreed to implement a program of in-service training for all employees at M.C.I. who have significant direct contact with inmates at the institution. This agreement was incorporated into the Court’s order of July 20, 1978. New employees who attend the orientation program required by Paragraph 13 of that order and employees who attend a course of in-service training held at the Ohio Peace Officer

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Training Academy in a given year are exempt from further re-training at the institution during that year.

During 1978, 69 employees received retraining at the Ohio Peace Officer Training Academy and obtained from that source the training exposure required by Paragraph 15 of the Court’s order of July 20, 1978. In addition, 72 employees attended the new employee orientation program and at least 13 employees assumed duties, such as secretarial, which do not entail significant direct contact with inmates at the institution. No person appears in more than one of these three categories. Thus, 154 persons on the staff on December 2, 1978, were exempt from mandatory participation in the in-service training program developed in accordance with Paragraph 15.

Between January 1, 1978 and December 2,1978, 233 M.C.I. employees completed the institutional in-service training program. Twenty-one employees employed on December 2 failed to receive any form of re-training during 1978, and none of these persons was exempt from the in-service training requirement of the Court’s order. Ten of those individuals, however, are part-time employees who teach only at night, three retired at the end of 1978, two were on extended leaves of absence, and another is the officer who coordinates and serves as instructor at the training sessions. The remaining five persons who did not receive in-service training were supervisory staff personnel who, according to the Superintendent, will participate in an in-service training program early in 1979.

As of December 2, 1978, M.C.I. employed 338 persons, 70 fewer than are accounted for by combining those persons who are exempt from institutional in-service training (154), those persons who received such training (233), and those staff members who were not trained but who were not exempt (21). This discrepancy, in the opinion of the Special Master, is accounted for by the fact that M.C.I. experiences a substantial turnover in employees during the course of a year. Thus a number of employees were trained during 1978 who were not employed by the institution on December 2,1978. What is clear, however, is that the defendants are maintaining a training capacity which is amply sufficient to provide in-service training for the maximum number of employees who may require such training during the course of a year.

While the Special Master did not examine the employment files of all 338 persons employed by M.C.I. on December 2,1978, in order to confirm the conclusions supported by the data discussed above, a random check was made of a substantial number of such files. In every case the presence of a certification of in-service training was found confirming the accuracy of the data provided by the Training Officer to the Special Master.

The re-training program administered at M.C.I. continues to contain elements designed to foster sensitivity to racial and ethnic temperament and to improve human relations skills. Additionally, a record indicating the completion of the institutional or Ohio Peace Officer Academy’s re-training program is maintained in participants’ employment files.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have achieved substantial compliance with the requirements of Paragraph 15 of the Court’s order of July 20, 1978.

PARAGRAPH 16

Inmate orientation.

An orientation program for incoming inmates is held every week at M.C.I. The topics dealt with include the Court’s order in this case as well as the responsibility of the inmate to refrain from acts of racial discrimination, intimidation, and harassment. This portion of the orientation program is assigned to the Director of the Psychological Services Department.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full

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compliance with the provisions of Paragraph 16 of the Court’s order of July 20, 1978.

PARAGRAPH 17

Annual audit by Chief Inspector.

On September 20 and 22, 1978, the Chief Inspector conducted his first audit of the state of compliance at Marion with the provision of the Court’s order in

Taylor v. Perini.

His report to the Director was submitted October 16, 1978. The report, which consumes some one and a half pages, reflects the deficiencies which existed in the two law library collections, the failure of the defendants to add a verbatim copy of the Court’s order of July 20, 1978 to the staff manual, the absence of required racial balance in 6 cellblock, and the fact that the Inspector of Institutional Services was not conducting in-service training for existing employees.

A second audit was conducted by the Chief Inspector on November 15 and 21, 1978, and his written report was submitted to the Director on November 24, 1978. In it, he reported that all of the problems discovered at the time of the first audit had been corrected with the exception of the missing law library materials. The remainder of his one and a half page report reflects his pleasure at his finding of compliance, his impression that employees are well acquainted generally with the Court’s order in this case, his concern about the difficulty of obtaining racial balance in a number of dormitories, and his feeling that remarkable progress has been made in achieving total compliance.

In the opinion of the Special Master, the audit reports submitted by the Chief Inspector do not reflect a careful evaluation of the institution's state of compliance or noncompliance with the Court’s order and thus fail to serve the purpose for which they are intended. In addition, more careful follow up would have indicated that racial balance indeed had not been achieved in 6 cellblock.

The purpose of the annual audit and the report thereof is to apprise the Director of the extent to which practices and policies at M.C.I. are falling short of the requirements of the Court’s order in

Taylor v. Perini.

In addition, it should provide a factual foundation for findings of compliance. Lacking a better model, the Chief Inspector might consider the various reports of the Special Master in this litigation. By failing to discover and report instances of noncompliance, even when these are explainable and perhaps excusable, the Chief Inspector is doing both the Superintendent of M.C.I. and the Director a disservice. For it is only by receiving this information, unwelcome as it may be, that the Director can take steps to avoid the further involvement of this or another court.

As an example, by the time of his first audit, the Chief Inspector had received several communications (including a grievance appeal) concerning the objection of one inmate at being transferred from the paint shop to the roofing gang on the recommendation of his supervisor.

The most cursory investigation by the Chief Inspector would have discovered that the reassignment was ordered over the objections of a majority of the Reclassification Committee. This rather obvious incident of noncompliance, had it been reported accurately to the Director, could have been cured quickly and easily. Likewise, a more thorough inquiry would have disclosed elements of noncompliance relating to the grievance system itself, the principal responsibility of the Chief Inspector. The same is true of a number of other significant incidents of noncompliance disclosed by this report.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that, although audits of the extent of compliance with the terms of the Court’s order were made and reported by the Chief Inspector, these audits and reports were not sufficiently complete to accomplish the purposes of Paragraph 17 of the Court’s order of July 20, 1978.

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PARAGRAPH 18

Racial balance in housing units.

In his fifth report to the Court, the Special Master indicated that the defendants were in a state of noncompliance with the original order in two cellblocks and in six dormitories.

It also was noted that the defendants were out of compliance with the standards of the then proposed Order and Agreement in two cellblocks and in only one dormitory.

Although acknowledging the chronic difficulties with achieving strict compliance with the terms of the original order, the fifth report stated: “In the event' of a review by the Special Master in December of 1978, however, the defendants should be aware of the fact that they are expected to adhere literally to the provisions of the Court’s final order on this subject.”

This they have not done.

The Court’s order of July 20, 1978, requires the assignment of inmates to the various housing units of the institution to reflect the racial balance of the overall population of the stockade and the honor dormitory respectively, allowing for a deviation factor of ± 5% in the cellblocks and ± 15% in the dormitories. Racial balance for cellblocks and dormitories is measured on a monthly basis by averaging the weekly racial balance in the housing units for a period of four weeks. Three of the twelve stockade dormitories are exempted from the provisions of this paragraph so long as they continue to be used to house participants of educational and drug rehabilitation programs. 2B dormitory continues to house participants in the educational program, and 5 and 5E dormitories continue to house inmates participating in a drug rehabilitation program. Compliance with this paragraph is established if no more than one of the nonexempt dormitories has a racial composition which exceeds the deviation factor. (If for nothing else, the Court in

Taylor

can take credit for articulating this “wild card” theory in institutional reform litigation.)

The bed asssignment figures for four dates, October 17, October 24, October 31, and November 7, 1978, were selected randomly, averaged, and compared to the racial breakdown in the institution for the date of October 31, 1978. On October 31, 1978 the racial composition of the stockade was 42.45% white and 57.45% black. The following figures indicate the average racial composition in each nonexempt housing unit in the stockade for the four weeks period.

Housing Unit # White # Black

Deviation from % White % Black Stockade Population

1 Cellblock 29.50 37.00 44.36 55.64 1.81

2 Cellblock 29.75 37.00 44.57 55.43 2.02

3 Cellblock 27.75 39.00 41.57 58.43 0.98

4 Cellblock 30.75 36.25 45.90 54.10 3.35

5 Cellblock 30.25 36.00 45.66 54.34 3.11

6 Cellblock 33.75 33.00 50.56 49.44 8.01

1 Dormitory 25.00 38.25 39.53 60.47 3.02

1A Dormitory 21.75 41.25 34.25 56.48 8.03

2 Dormitory 15.00 48.75 23.53 76.47 19.02

3 Dormitory 29.50 33.75 46.64 53.36 4.09

3C Dormitory 10.25 52.50 16.33 83.67 26.22

4 Dormitory 19.25 44.25 30.31 69.25 12.24

4D Dormitory 21.75 41.75 34.25 65.75 8.30

6 Dormitory 40.75 22.50 64.43 35.57 21.88

6F Dormitory 30.50 32.00 48.80 51.20 6.25

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Thus, during the period measured, the defendants exceeded the deviation in one of the cellblocks and in three of the dormitories. Because one of the dormitories may be discounted, the defendants were out of compliance in three housing units.

Particularly troublesome is the state of noncompliance found existing in 6 Cell-block, which is considered the most desirable housing unit within the stockade. Accordingly, compliance in 6 Cellblock has been of great interest both to the plaintiffs and to the Court. Although the Special Master previously has demonstrated reluctance to attribute noncompliance in 6 Cell-block to resistance by the defendants, 421 F.Supp. 740, 773 , it must be noted that the racial breakdown in 6 Cellblock has exceeded the' deviation factor at the time of the Second, Third, and Fifth Reports.

When the Department conducted an au- I dit on October 16, 1978, noncompliance in 6 Cellblock was reported and the Superintendent was directed to take action to correct the problem.

On October 30, 1978, the Inspector of Institutional Services at M.C.I. informed the Chief Inspector that “the 6 Cell Block situation has now been resolved. (The Superintendent) and (the inmate personnel officer) discussed this and (the inmate personnel officer) is now in the process of placing 2 or 3 more blacks into 6 CB which will bring it into complete compliance with the plus or minus 5% as required.” Nonetheless, on December 5,1978, the deviation was 11.42%; thus the deviation increased rather than decreased after noncompliance was brought to the attention of the Superintendent.

The practice of having “allotted cells,”

see

413 F.Supp. 189, 259 , has made achieving compliance in 6 Cellblock more difficult and this fact has been acknowledged by the Superintendent. That practice obviously cannot continue if it conflicts with this provision of the Court’s order of July 20,1978. Action must be taken also to alleviate the racial imbalance in at least two of the three imbalanced dormitories.

During the same period of time referred to above, the racial balance in the honor dormitory was 37.02% white and 62.98% black. The average racial composition of the honor dormitory’s North Dormitory was 39.25 whites and 78.25 blacks or 33.40% white and 66.60% black. This reflects a deviation from the entire honor dormitory population of 3.62%. In the East Dormitory, the racial breakdown was 42.75 whites and 57.00 blacks or 42.86% white and 57.14% black. This reflects a deviation of 5.84%. Thus both housing units within the honor dormitory were in compliance with this paragraph of the Court’s order.

An examination of the bed patterns within the housing units both in the stockade and in the honor dormitory continues to indicate a reasonable degree of integration in the various bed and cell rows. Although there is considerable room for improvement, particularly within the cellblocks, a reasona

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ble degree of racial integration has been established throughout bed rows in the housing dormitories throughout the institution.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that racial balance in housing assignments within the stockade has deteriorated since the Special Master’s submission of his fifth report to the Court. Under these circumstances, the Special Master is forced to conclude that the defendants have not maintained substantial compliance with the provisions of Paragraph 18 of the Court’s order of July 20, 1978.

PARAGRAPH 19

Placing of grievance references in inmates’ files.

The Special Master examined the files of a large number of inmates who filed grievances between July and December, 1978. In particular, files of persons submitting several grievances were examined. In no case did the Special Master come across any reference or document relating to the filing of a grievance or to a claim that the provisions of the Court’s order had been violated.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants are in full compliance with the provisions of Paragraph 19 of the Court’s order of July 20, 1978.

PARAGRAPHS 20 and 21

Racial discrimination, harassment, intimidation, and insult.

Apart from the matter of racial imbalance in several housing units discussed earlier in this report, no incidents of racial discrimination, harassment, intimidation or insult by staff members against inmates have been verified by the Special Master. Although allegations of racial discrimination, harassment, or insult were made in several grievances, the Inspector of Institutional Services and the Outside Citizens’ Review Committee were unable to find substantiating evidence in any of these cases. The Special Master has reviewed these grievances and he is unable to determine that racial discrimination, harassment, or insult actually occurred.

The principal mechanisms which were developed in order to prevent incidents of this type and to deal with those which inevitably must occur from time to time are the grievance system and the two resident councils. For this reason, the Special Master has not attempted to canvass inmates on a regular and continuing basis in order to learn about such incidents; moreover, when an allegation of racial discrimination or insult has been made, the Special Master has suggested that the inmate utilize the grievance system in order to obtain relief.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants are in compliance with the provisions of Paragraph 20 of the Court’s order of July 20, 1978, in that no practice or policy of the institution, apart from housing assignment practices discussed above, has the purpose or effect of racial discrimination. While isolated acts of racial discrimination, harassment, intimidation, and insult by individuals no doubt occur from time to time, there is no evidence of systematic or widespread conduct of this kind.

PARAGRAPH 22

Resident Councils.

Resident Councils continue to function both in the stockade and in the honor dormitory. Elections were held in August, 1978, and 18 representatives were elected to the Stockade Resident Council and 6 representatives were elected to the Honor Dormitory Affairs Council. In the honor dormitory, five rather than six alternate representatives were selected, and in the stockade alternate representatives where chosen for 17 out of 18 housing units.

From time to time representatives have resigned their membership. When the Special Master met with the honor dormitory

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council in mid-December, 1978, it consisted of 5 members and there were no alternates available. At that time, there were several housing units in the stockade which were not represented on the stockade council. No special elections were held in the honor dormitory until December 20, 1978. At that time a sixth representative and four alternate representatives were elected. A special election was held in the stockade in November, 1978, at which time difficulty was encountered as a result of the evening shift commander’s refusal to honor duly issued passes permitting council representatives to circulate throughout the institution to hold elections. This problem was resolved and the election was held on the following evening.

Written guidelines for the stockade council have remained unchanged since August 6, 1976.

In October, 1977, the stockade council agreed to the establishment of standing committees to be concerned with the areas of food service, mail and visiting, medical service, recreation, safety and sanitation, and policy.

Although these committees, in addition to the executive committee, have functioned since that time, no change in the Resident Council Guidelines reflects the new organizational structure. Because these committees are permanent components of the stockade council, the Special Master recommends that appropriate amendments reflecting this fact be made to the Stockade Resident Council Guidelines.

To the knowledge of the Special Master, only one effort was made between July, 1978 and December 1978 to amend the stockade council guidelines. The proposed amendment related to the structure and jurisdiction of the policy committee. Apparently, the proposal was rejected by the staff member serving as liaison person between the administration and the policy committee. Although that person discussed the proposal with the Superintendent, no written explanation of disapproval was provided by the Superintendent as required by Paragraph 22 of the Court’s order of July 20, 1978.

By memo of December 15,1978, the Hon- or Dormitory Affairs Council informed the Superintendent of two proposed amendments to the Constitution of that organization which was adopted on August 9,1976.

Article III(l)(b) was amended to read as follows:

To be eligible for election to the Honor Dormitory Affairs Council, an inmate must have lived within the Honor Dormitory a minimum of sixty (60) days uninterrupted by parole or escape, i. e., a candidate must have lived within the Honor Dormitory those sixty (60) days prior to the election date and shall not have less than six (6) months to the parole board.

In addition, Article V(2) was amended to read as follows:

There will be three (3) officers in the Honor Dormitory Affairs Council, these being the Chairman, Secretary, and Assistant Secretary. The Chairman and Secretary must be elected from the representatives block and the Assistant Secretary may be elected from the representatives block or from the alternates block.

There having been no indication of disapproval from the Superintendent, these amendments are now in effect.

The Special Master recommends that up-to-date copies of the stockade council guidelines and the honor dormitory constitution and by-laws be prepared for use by present and future members of the two councils. In the future, it would be useful to include these documents in the stockade and honor dormitory inmate manuals so that all inmates may be aware of the nature and structure of the organizations which serve them. The Special Master recommends that this be accomplished at the time of the

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distribution of the revised manuals in June, 1979.

The administration as well as the councils themselves have provided the Special Master with all records of agendas, meetings, and proposals of the two councils between the summer of 1978 and December, 1978. These records reflect that all standing committees of the stockade council, the council itself, and the honor dormitory council have met on a regular and frequent basis. Although every standing committee has not met at two weeks’ intervals, as the Superintendent hoped, no committee has been hampered by the inability to meet. In most cases, staff liaison members have met with the various committees on a regular basis. Meetings between the councils and the Superintendent have been rare and both councils have expressed concern about this matter to the Special Master.

Both councils are provided adequate office, meeting, and filing space. In addition, there have been no complaints concerning provision of office supplies.

With respect to meeting reasonable requests for information, at least one request by the stockade council has been refused consistently by the Superintendent over a period of a year. That organization has sought information about the current balance in the Industrial and Entertainment account which is maintained for the general inmate welfare. Contributions to this account originate,

inter alia,

from cash confiscated within the institution. Since this account is utilized to purchase recreation equipment as well as other items related to the activities of one or more standing committees, the Council has taken the position that this information would be useful to the committees in attempting to prepare feasible proposals. The Special Master agrees and has raised the matter several times with the Superintendent; at no time, however, has a reasonable explanation for refusal been offered.

Written responses from the Superintendent or his designee have been provided to some, but not all, council proposals. For example, on June 28,1978, the medical committee of the stockade council recommended that dental floss be sold in the commissary and that it be permitted to enter the institution through visits and mail. Likewise, on November 29, 1978, the same committee recommended that antacid tablets be available in the housing units. On July 20, 1978, the food service committee proposed the holding of a Labor Day picnic, and the staff liaison member agreed to take this written recommendation to the Superintendent. As pointed out above, the policy committee, in an undated memorandum, proposed a change in the jurisdiction and structure of that committee. Finally, on October 24, 1978, the stockade council recommended that it be permitted to hold a general assembly for the entire stockade population. To the best of the Special Master’s knowledge, no written response was provided to any of these proposals.

Council members are permitted to report their activities in block meetings, although some difficulty has been experienced in this regard from time to time with officers in the stockade. As best the Special Master can determine, the stockade council has access to “Points of Interest,” the resident newsletter which is published in the stockade, although it has not utilized this vehicle on a regular basis.

No significant reports of harassment, intimidation or insult of council members relating to their service on one of these bodies have been received by the Special Master. The incident described in that portion of this report dealing with Paragraph 8 of the Court’s order did involve a member of the honor dormitory council, and it is the opinion of the Special Master that the administration’s exaggerated response was due, at least in part, to the inmate’s position on the council.

The purposes which underlay the creation of the two resident councils were the development of more effective communication between the administration and the inmate body, the creation and adoption of new programs and policies which would benefit the inmate population without compromising the security of the institution, and, in

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particular, the providing of yet another means for maintaining compliance with the requirements of the Court’s final order in this case. From the point of view of the inmates, certainly, the value of these institutions is measured almost entirely by the extent of perceived accomplishments. Whatever the level of effectiveness of the two councils, M.C.I. will remain a prison, breeding a high level of discontent among its involuntary inhabitants. The fact and attendant restrictions of incarceration virtually guarantee this. Thus it is not surprising that the councils have fallen short of the goals which have been set for them by many inmates.

The task of the Special Master, however, is to attempt an evaluation of the effectiveness of these organizations from a somewhat more detached and objective point of view. Any attempt to measure the success of the councils requires subjective evaluation of what is a highly dynamic and fluid process. Allocation of responsibility for breakdowns and failures, when these have occurred, is even more difficult to make precisely.

That having been said, the Special Master believes that both councils have achieved significant accomplishments. First, and perhaps most important, the councils have become established as an ongoing element of the status quo within the prison. If staff members are less than enthusiastic, it is fair to say that their attitude is not one of unmitigated, unanimous opposition. Staff members serving liaison roles with the two councils and the various subcommittees of the stockade council, for what it is worth, expressed unanimous support for continuation of these organizations. All felt that increased constructive communication between staff and inmates had been accomplished. While it is certainly true that many of the problems to which these bodies have addressed themselves remain unsolved, the phenomenon of staff/inmate communication and discussion has taken hold. This in itself distinguishes Marion Correctional Institution from most prisons. While it is only natural that this accomplishment should lead to rising expectations and thus to a certain amount of disappointment on the part of the inmates at the difficulty of reaching satisfactory resolutions in all instances, these difficulties should not be permitted to obscure the enormous importance of what in fact has occurred.

This is not to say that the inmates, or for that matter the Court, should be entirely satisfied by the level of concrete accomplishment .that has been achieved. To the contrary, persistent problems relating to sanitation, physical disrepair, recurring mail and visiting incidents, and delays in medical treatment, for example, should be more amenable to resolution than has been the case. Part of the difficulty, no doubt, rests with the councils themselves. Organization and discussion could and should be more efficient, written proposals clearer, and follow up action more vigorous. It is equally certain, however, that staff responses should be more considered, articulate, and in at least some cases, positive. In any case, they should be more prompt.

In the imperfect environment in which the councils are functioning, however, it is fair to say that significant tangible accomplishments have been realized. In the hon- or dormitory, council recommendations resulted in the assignment of a full-time food service supervisor for that unit, the replacement and up-grading of the dishwashing machine in the kitchen, the installation of a toilet for the use of kitchen workers as well as a new visitors’ restroom, the building of covered picnic tables for outside visiting, the upgrading of the plumbing system throughout the honor dormitory, the refurbishing of pool tables and the provision of some recreation equipment including a new movie projector, the availability of a paramedic for sick call on a more or less regular basis, the upgrading of medical equipment and supplies in the small honor dormitory infirmary, and the provision of new barber chairs and periodic replacement of barber equipment.

Since July, 1978, the chief concerns of many honor dormitory inmates have related

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to visiting, telephone, and other restrictions which were imposed following a violent incident which led to the death of one inmate and serious injury to another on July 4, 1978. While the council has been able to discuss these restriction^ with the Superintendent, it has not been successful in persuading him to relax any of the new procedures. These are difficult and important matters, both to the administration and to the inmate body, and the Special Master believes that the Court should be satisfied that the council has been able even to open up lines of communication on matters of this kind. Cooperation does not require the administration always to agree with the position put forward by the council. Willingness to listen, to respond positively when it is possible to do so, and to provide an articulate, reasoned basis for negative responses is the heart of the process.

In the stockade, a number of positive results have flowed from the activities of the various standing committees. A number of plumbing and sanitation problems have been alleviated through the efforts of the safety and sanitation committee, although others persist. Broken chairs in the visiting room were repaired and a weekly roach control program was initiated. A medical committee proposal for distribution of cold pills in the housing units was implemented, as was a suggestion that no-inmate be allowed to obtain prescription medication in the infirmary without presenting his identification card. The recreation and commissary committee can take credit for the expansion of the range of cosmetic products available in the commissary, the installation of a new sound system for movies in the gymnasium, a $300 increase in the movie fund budget, the building of a new handball court, and the purchase of a new boxing ring and additional weight lifting equipment. As a result of a recommendation of the mail and visiting committee, a shield was constructed to maintain confidentiality of visiting lists from visitors at the visitors’ desk. In addition, telephone reservations are permitted for weekend and holiday visitation, a new cash slip policy has been developed, and delivery of legal mail is made on Saturday in addition to Monday through Friday. In the area of food service there has been at least some improvement in grooming, sanitation, portion control, and enforcement of no smoking regulations in the kitchen and serving areas. The political action committee, a special project of the stockade council, has had excellent success in working with its staff liaison representative and has caused several letters to be mailed to friends and relatives of inmates urging them to participate in the November, 1978, election. The letters highlighted certain issues of interest to prisoners (e. g. State Issue # 2 relating to the removal of constitutional restrictions upon the use of prison labor) and were nonpartisan in their content. In addition, the political action committee has inaugurated a speakers’ program which has brought to the prison representatives from the Ohio General Assembly and the executive branch of state government.

The two councils have enjoyed no success in attempting to bring about revision of several departmental policies, even to the extent of their application to M.C.I. For example, the reduction from four to two in the number of “friends” who can be placed on a visiting list has been a source of constant irritation. Until recently, it was not at all clear whether the regulation was imposed by the department or by the local institution and it is still not apparent (to the Special Master at least) why the regulation should apply to institutions whose visiting facilities are adequate to accommodate more visitors.

Likewise, the councils have been unsuccessful in obtaining fundamental change in institutional policies regarding visiting, the provision of playground equipment for children, or upgrading of medical care, and needed improvement in the areas of sanitation and quality relating to food service. Some of these issues relate to what are regarded as fundamental policies of the institution, and in many cases improvement will require substantial budgetary outlays. For these reasons, success is difficult to achieve.

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Delays in implementation of agreed upon proposals still occur. A chief example is that of installation of telephones in the stockade. Efforts since May of 1977 have not yet brought this project to fruition. While in some instances delay is unavoidable and thus understandable, the phenomenon increases the level of general frustration on the part both of council members themselves and the inmates whom they represent.

Finally, it does appear that the Superintendent is using the two councils in a constructive manner to introduce new policies and procedures. In particular, at the time of the July 4 incident which resulted in substantial revision of honor dormitory privileges, the Superintendent met with the resident council in order to introduce and explain these changes and the reasons for them. By utilizing both councils in this manner, the Superintendent can avoid or at least minimize hostile reactions based upon inadequate information and surprise.

Before concluding this section of his report, the Special Master wishes to record his conviction that both resident organizations have been benefited by dedicated, able, and hard-working members. Leadership has been strong and willing to cope with frustration. Both groups have experienced discontent and disillusionment as they have attempted to fulfill their responsibilities, and the Special Master believes that their efforts have been largely unrecognized by many inmates and staff alike. Nonetheless, Marion Correctional Institution is a more livable place because of the work which these men have done, and staff, inmates, and the Court should be grateful, as the Special Master is, for the willingness of these groups to persist in their efforts. In large measure the responsibility for maintaining these institutions in the future rests with the inmate population itself. While conceding that the councils have not accomplished miracles, as the Special Master predicted they would not,

one must acknowledge that the accomplishments of the councils are of significance and meaning to the lives of inmates in the institution. With time, perhaps even more can be achieved. In the meantime, inmates should do all in their power to preserve and protect these institutions by remaining interested, active, and supportive, as they constitute one of the most fundamental and far reaching accomplishments of this litigation. As the Special Master has pointed out on a number of occasions, the Court has ordered the defendants to permit these councils to exist and to provide tangible evidence of cooperation in a number of respects; on the other hand, it has not ordered the inmates to support these institutions. As a result the latter are free to abandon them if they choose. A decision to do so, however, will not improve conditions at M.C.I. and will destroy a vehicle for reform for which thousands of imprisoned men and women throughout the United States have struggled, sometimes at great cost.

FINDINGS REGARDING COMPLIANCE

Subject to the specific matters commented upon below, it is the finding of the Special Master that the defendants have achieved a state of substantial compliance with the provisions of Paragraph 22 of the

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Court’s order of July 20,1978. The defendants should be required to take the steps recommended above regarding the up-dating and distribution of guidelines adopted by the two councils, and in the future the Superintendent should respond in writing to any proposal for amendment of the guidelines of which he disapproves. In addition, the defendants, particularly Superintendent Perini, should make every effort to continue and, to the extent possible, improve the effectiveness of the two resident councils by insisting upon increased cooperation on the part of staff liaison persons working with the two councils and the standing committees of the stockade organization. All reasonable requests for information by the councils should be met. To the extent that it is feasible, reasonable requests of the councils should be approved; in instances in which proposals are disapproved, however, care must be taken to provide coherent and reasonable written explanations of the reasons for the administration’s position. In these areas in particular there is substantial room for improvement. In addition, both the administration and the councils themselves should be alert to the need to hold special elections when inmates resign from membership, and elections should be held promptly to fill vacancies. Finally, when council proposals relate to departmental rather than institutional policies, the Chief Inspector should make himself available for discussion and should assume responsibility for carrying such proposals to higher authority within the Department.

PARAGRAPH 23

Inspector of Institutional Services.

Mr. Jay Tripp continues to serve as Inspector of Institutional Services at M.C.I. Because of the large number of grievances that continue to be filed by inmates in the institution, the bulk of his time is spent dealing with these grievances; as a result, only a minor part of his activities relates to inspection of institutional services generally and to the monitoring of the application of institutional and departmental rules. On several occasions, in connection with a grievance investigation or at the direction of the Chief Inspector, the Inspector of Institutional Services has evaluated certain areas of the institution and their operation. Examples are the mail and kite system, the cafeteria, and the handling of incoming packages.

The Inspector of Institutional Services does participate in the staff orientation and in-service training programs required by Paragraphs 13 and 15 of the Court’s order. In addition, he participates in the inmate orientation program required by Paragraph 16. Between July 20, 1978 and December 15,1978, the Inspector of Institutional Services met only twice with each of the two resident councils. In the opinion of the Special Master, this does not constitute the “regular consultation” that is required by Paragraph 23 of the Court’s order. Such meetings should be held at least monthly in order to establish an effective working relationship between the councils and the Inspector.

In spite of the large volume of grievances with which he has been required to deal, the Inspector of Institutional Services has provided written responses to all grievances, and these responses generally have provided the inmate with reasons for the Inspector’s decision. In a number of cases, however, these explanations are less clear than they should be.

The Inspector of Institutional Services has not been given special assignments by the Chief Inspector that are unrelated to or inconsistent with the former’s duties. The same appears to be true of the Superintendent as well. Following the outbreak of violence which occurred in the honor dormitory in July, 1978, the Inspector participated in the investigation of the incident, but the exceptional and serious nature of this occurrence warranted that involvement.

Except in one area, it appears that the Inspector of Institutional Services possesses sufficient authority to perform his duties in an effective manner. That area relates to sanctioning of correctional officers whose inappropriate behavior toward inmates has resulted in the filing of grievances. In one

*1327

instance, the Inspector recommended that a correctional officer who had been a source of numerous grievances be suspended without pay for three days and transferred to another shift. Based upon independent information which the Special Master has received both from inmates and staff members, he believes that the Inspector’s recommendations clearly were warranted. Nonetheless, the recommendations were disapproved by the Superintendent. Although in his letter responding to the Inspector’s recommendations, the Superintendent referred twice to the officer’s “poor judgment” on previous occasions, he found that “his good points far overshadow his shortcomings.”

On several occasions, the Inspector of Institutional Services has recommended that officers receive written reprimands for inappropriate behavior toward an inmate. In one instance, the affected officer had thrown a soft drink can at an inmate. When the Special Master reviewed the personnel file of this officer, there was no written reference to the incident, let alone written reprimand, to be found. According to the Personnel Officer at M.C.I., there has never been an occasion on which a written reprimand has been placed in an officer’s personnel file as a result of a recommendation from the Inspector of Institutional Services.

The Inspector of Institutional Services is assisted by a full-time secretary whose skills require improvement if she is to fulfill the responsibilities of her position. In addition, because of the large number of grievances that arise at M.C.I., the Inspector, in the opinion of the Special Master, is in need of additional assistance in the investigation and resolution of grievances. Between July 1, 1978 and December 1, 1978, 402 grievances were filed at M.C.I. These constituted 35% of all grievances filed in eight adult correctional institutions in Ohio during that period. Under the present circumstances, it is not physically possible for the Inspector of Institutional Services at M.C.I. to investigate fully all of the grievances that are submitted to him as well as perform his duties of general inspection and monitoring of departmental and institutional rules and policies.

The Inspector of Institutional Services occupies the position of Administrative Assistant II and reports directly to the Superintendent. In addition, he submits regular reports on a monthly basis to the Chief Inspector. Monthly grievance logs as well as other documentation are submitted to the Chief Inspector on these occasions.

Mr. Tripp has served as Inspector of Institutional Services since the creation of that position in December, 1976. Prior to that time he served as Training Officer and Chairman of the Rules Infraction Board at M.C.I. During the two years he has served as Inspector of Institutional Services, he has acquired valuable experience that reflects itself in the improved operation of the system at Marion. The Inspector participated in a training program that was held primarily for members of the Outside Review Committee in January, 1978. In addition, he has participated in a number of meetings with the Chief Inspector that have contained a training component. Nonetheless, the Special Master believes that additional training should be provided to strengthen the Inspector’s skills of dispute resolution and to improve his ability to articulate his decisions and the reasons therefor in a more thorough and effective manner.

FINDINGS REGARDING COMPLIANCE

The Special Master finds that the defendants are in compliance with the provisions of Paragraph 23 of the Court’s order of July 20, 1978, except to the extent that the volume of grievances in the institution does not permit the Inspector of Institutional Services to investigate thoroughly all grievances and to perform his duties of general inspection and monitoring of departmental and institutional rules and procedures; in addition the Inspector of Institutional Services apparently does not possess sufficient authority to effect disciplinary action against correctional officers who engage in inappropriate behavior toward inmates. The Inspector of Institutional Services re

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quires additional training in order to improve further certain skills that are related to the grievance resolution process. Finally, the Inspector of Institutional Services should engage in regularly scheduled meetings on at least a monthly basis with each of the two resident councils in the institution.

PARAGRAPH 24

The Chief Inspector.

The Department of Rehabilitation and Correction continues to employ a person who serves as Chief Inspector and whose duties relate almost exclusively to the grievance system mandated by Paragraph 25 of the Court’s order of July 20, 1978. The duties and authority of the Chief Inspector are spelled out in Administrative Regulation 5120-9-30, which was amended on February 10, 1978. See Appendix A, p. 1335

infra.

In general, it appears that the Chief Inspector’s activities conform to the substance of the Administrative Regulation that created the position. The principal exception relates to his mandated duty to investigate and monitor practices at Marion Correctional Institution to insure that all law as well as rules and regulations of the department and the institution are being followed and applied fairly. Likewise, it does not appear that the Chief Inspector has conducted periodic audits of all records and files at M.C.I. to insure proper documentation and utilization of the grievance system. Indeed, as the Special Master pointed out in that portion of this report dealing with Paragraph 17 of the Court’s order, the audits that the Chief Inspector has conducted for the purpose of satisfying the requirements of that provision were insufficiently detailed to be more than minimally useful.

Although the Chief Inspector believes that he does not require the appointment of an Assistant Chief Inspector in order to perform the duties of his office, the inability of the Chief Inspector to fulfill the responsibilities referred to above would seem to indicate the contrary. In addition, it is almost never possible for the Chief Inspector to conduct an on site investigation for the purpose of resolving a grievance appeal. Such investigations are necessary, particularly in those cases in which the Chief Inspector is called upon to resolve conflicting factual assertions.

FINDINGS REGARDING COMPLIANCE

The defendants have maintained the office of Chief Inspector and to that extent have remained in compliance with this provision of the Court’s order of July 20, 1978. To the extent that the Chief Inspector has failed to engage in general investigation, monitoring, and auditing activities mandated by Administrative Regulation 5129-9-30 and to audit the operation of the grievance system at M.C.I., the purposes of Paragraph 25 of the Court’s order are not being fully effectuated.

PARAGRAPH 25

The grievance system.

In spite of the fact that he was called upon to deal with 402 grievances between July 1, 1978 and December 1, 1978, the Inspector of Institutional Services has made what must be described as a herculean effort to effectuate the requirements of this paragraph of the Court’s order. By and large, he has been successful in doing so. New if any grievances have been excluded from consideration because they fall within the province of the Rules Infraction Board, the legislature, the Adult Parole Authority, the courts or another administrative agency. The Inspector has been successful in responding to all but a few grievances within the time constraints imposed by the Court’s order, and he has provided the affected inmate with appropriate notice in virtually all cases in which delay was unavoidable. Copies of this notice, however, have not been sent to the Chief Inspector as required by the order. In only one case has the Inspector of Institutional Services requested a delay of

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more than 30 days, and in this instance the permission of the Chief Inspector was obtained.

The Inspector of Institutional Services has maintained the voluminous records required by the Court’s order and has provided inmate/grievants with a written response and reasons therefor in all cases. The Inspector has deviated from the requirements of Paragraph 25, however, in that he has not provided inmate grievants with a copy of the completed grievance form submitted by the inmate.

In addition, the Inspector has been scrupulous in performing his duty of informing inmates of their right to appeal his resolution, in assisting the inmate to prepare that appeal if requested to do so, and in coordinating the meetings and activities of the Outside Review Committee. He has maintained a heavy schedule of inmate and staff interviews. In sum, he has made a dedicated effort to bring the defendants into compliance with this paragraph of the Court’s order. Indeed, this effort to comply with the notice, reporting, and other procedural requirements of the system has made it impossible for the Inspector to make a full investigation of the substance of a number of grievances.

The key to understanding the provision of the Court’s order requiring the defendants to maintain a grievance system is found in the word “effective.” The first sentence of Paragraph 25 requires the defendants to “maintain an effective procedure for the resolution of inmate grievances at Marion Correctional Institution.” Compliance with the myriad details of Paragraph 25 is not enough, for it is clear that the Court did not intend to create a system of form rather than substance. While it is true that in administering a system in keeping with the required details of the Court’s order the Inspector has contributed to the development of an effective grievance system, that alone would not have been sufficient.

The measurement of the effectiveness of a grievance system, as defendants’ counsel have pointed out to the Special Master on a number of occasions, is a subjective process of judgment. That is all the more true when the institutional setting for the system is a prison rather than a school, hospital, or factory. The fact of incarceration and many of its attendant restrictions are inherently grievance provoking. In addition, a substantial number of legitimate complaints simply cannot be resolved satisfactorily in the setting of a prison. Particularly, where the evidence that the Inspector must evaluate consists of conflicting factual allegations by staff and inmates, successful resolution will be rare.

All that having been said, the Special Master believes that the Inspector of Institutional Services at M.C.I. has been successful in maintaining an effective grievance procedure at the institutional level. Certainly it is less effective than many residents would have it be, and indeed in some respects it is less effective than it should be. The Special Master would hazard a guess, however, that there are few if any prison administrations that could not learn from it.

In attempting to evaluate the effectiveness of the grievance system at M.C.I., the Special Master reviewed all of the grievances that were submitted by inmates between July 20, and December 1, 1978. The improvement reflected in the Inspector’s handling of complaints has been remarkable. A few examples of effective action on the part of the Inspector will make the point.

An officer who gave two incoming letters to one inmate to deliver to another inmate/addressee was reprimanded by the Inspector of Institutional Services, and as a result of his recommendation, by the Shift Commander. In another instance, an inmate whose earphones had been stolen was provided with a pair which had been properly confiscated by the administration from another inmate. This provided real relief rather than the illusion of redress offered by the Court of Claims system to which inmates are generally remitted in such instances. When an inmate was improperly denied a cell, the Inspector ordered that the person who had been mistakenly assigned to that cell be moved in order to make room

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for the grievant. Another inmate who had been paid at a lower pay scale than that to which he was entitled was able to obtain the increase retroactively as a result of the Inspector’s recommendation. In several cases involving inappropriate or disrespectful personal conduct on the part of correctional officers, the Inspector found the officer to be at fault and made that finding clear on the written grievance resolution that was sent to the inmate and the officer involved. When it was discovered that staff members were enforcing a policy that was not reflected in any written rule, the Inspector took steps to see to it that a written policy was developed and that notice was given to the resident population through the institutional newspaper. In a case in which an inmate was deprived of a visit with his wife, the Inspector arranged for the inmate to speak to his wife by long distance telephone call in spite of the fact that the institutional visiting officer was technically correct in refusing to permit the visit to occur. The Inspector recognized that the visitor had been put to great inconvenience and that the fact that the inmate’s wife subsequently took up residence in another state made the circumstances unique.

In these and numerous other grievances, the Inspector accomplished a resolution that satisfied the needs of the inmate while preserving the essential interests of the institution. The Inspector has prodded staff members throughout the institution to improve the operation of their departments in order to resolve grievances and prevent recurrence. Where policies have been unwritten or unclear, he has attempted to develop articulate guidelines for future conduct and to make the resident population aware of the new policy.

This is not to say that all resolutions have been satisfactory. In connection with a grievance alleging that an officer had said, “Stop playing with niggers,” the Inspector attempted unsuccessfully to contact the officer, stated that he would follow up the matter upon the officer’s return to the institution from an interruption of his employment, but failed to do so. In response to an allegation that a staff member working in the food service department stated, “Fuck the order, I run this kitchen,” the Inspector replied, “It is true that . does run the kitchen.” Since the staff member was charged with violating an institutional policy which the Inspector acknowledged “cannot be applied to the letter,” the response missed the point of the grievance. Another staff member was excused for swearing at an inmate because he did not do so “maliciously.” In what was the most glaring example of the breakdown of the grievance system discovered by the Special Master, the Inspector failed to appreciate the seriousness of an established charge that one inmate performed surgery on another inmate by removing a tatoo in the infirmary while the “doctor was standing by.” The Inspector’s response dealt with everything but the substance of this extremely serious matter.

Several grievances alleging violations of the Court’s order in

Taylor v. Perini

were brought to the attention of the Inspector of Institutional Services. These related to the mandated job assignment procedures, the provision of legal assistance by inmates other than inmate law clerks, the provision of credit for postage for outgoing legal mail, the bed assignment policy in dormitories, improper treatment of incoming legal mail, harassment of a member of the stockade resident council because of that person’s membership on the council, failure to serve sugar or salt in the correctional cells, racial discrimination on the part of staff members toward inmates, use of racial epithet by a guard, improper confiscation of pictures of a “semi-nude” woman, and failure to provide adequate office supplies for the law library. In most of these instances, the Inspector made a sufficiently thorough investigation to conclude that no violation had in fact occurred or to provide a basis for instituting action to remedy the violation and prevent recurrence. In several, however, the Inspector should have gone further than he did, and he relied too heavily upon self-serving denials by affected staff members.

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Thus it is clear that the level of effectiveness of the grievance system at the institutional level is less than perfect. At the same time, the Special Master believes that the Inspector of Institutional Services has made a sincere effort to make the system work as it should and that he has made substantial progress toward that goal. To the extent that he has fallen short, an explanation is provided by the tremendous demands of the system at M.C.I. upon the physical and mental resources of any one person. The operation of the grievance system within the institution, when compared to its optimal level of effectiveness, indeed falls short; when compared to the system which it replaced, however, it has come far.

On March 2, following the issuance of the draft report, the Special Master and counsel for the plaintiffs met with the two Resident Councils at M.C.I. This report should reflect that the inmate representatives who attended that meeting disagreed strongly with the conclusions reached by the Special Master concerning the adequacy of the Inspector’s performance. Furthermore, some of the evidence presented at that meeting was not unpersuasive. For example, the Inspector of Institutional Services issued a conduct report against one grievant, charging him with lying. The alleged lie related to the inmate’s assertion that he had not been permitted to use the telephone on a given evening. Thus, even if the inmate lied, the nature of the lie was not such as to permit sanctioning under Paragraph 25 of the Court’s order which provides,

False accusations and statements by inmates or staff may be the subject of disciplinary action when made in a knowing, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated. The burden of proof in such cases shall always rest with the institution. Failure of an inmate to substantiate his grievance accusations shall not, by itself, be used as grounds to initiate disciplinary actions.

In fact, the inmate was found not guilty when he appeared before the Rules Infraction Board, and the basis for the acquittal was lack of evidence. The reaction of the members of the two Resident Councils should be a matter of genuine concern to the defendants and to the Inspector of Institutional Services, as it is to the Special Master, and the Inspector must realize that the confidence of the inmate population in the Inspector’s objectivity, fairness, and effectiveness is a matter of crucial importance to the overall success of the grievance system.

The activities of the Inspector of Institutional Services constitute only the first level of the grievance system mandated by Paragraph 25 of the Court’s order. The second step involves the Outside Review Committee, a panel of volunteer citizens who review grievances that are appealed to them by inmates who are dissatisfied by the results obtained at the level of the Inspector of Institutional Services. Between July 1, 1978 and mid-December of that year, the Outside Review Committee held 18 hearings and made findings and recommendations in those cases. Thus the process of outside review continues to be used by inmates, but not at a rate that threatens to swamp the reviewers with more cases than they reasonably can be expected to handle. All ten members of the original Outside Review Committee continue to serve, and several members have been added in order to reduce the number of occasions upon which any one member is required to hear a case. The outside review panels have been thorough in their treatment of the problems that have come before them and have recommended corrective action in a number of cases. In several instances, the Outside Review Committee confirmed the findings of the Inspector of Institutional Services. In spite of this, discussions between the Special Master and a number of inmates indicate that the Committee continues to enjoy a high level of credibility and respect from residents of the institution.

The Special Master has suggested to the Outside Review Committee, with whose members he met in December, 1978, that more care be taken to provide the inmate/grievant with an articulate explana

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tion of the Committee’s findings and recommendations, and that any recommendation of corrective action be made clearly to the Chief Inspector. In all other respects, the Outside Review Committee has been operating at a high level of efficiency and with significant effectiveness. The presence of the component of outside review — and the dedicated efforts that these private citizens are making as volunteers — provide the entire system with a degree of credibility which would be altogether lacking in a totally in-house system, and the Special Master wishes to take this occasion to express his appreciation to the members for their important contribution to the overall effectiveness of the grievance system at M.C.I. While it is beyond the scope of this report, the Special Master hopes that the Director of the Department of Rehabilitation and Correction recognizes the success that has characterized the use of outside citizen reviewers at M.C.I. and that he will implement the system at institutions other than M.C.I. in the near future.

The final step in the grievance system incorporated into Paragraph 25 of the Court’s order is that of review by the Chief Inspector. It is here, in the opinion of the Special Master, that the system has been least effective.

Between July 1, 1978 and mid-November of that year, 33 appeals were received by the Chief Inspector from inmates at Marion Correctional Institution. This number includes the 18 appeals which were referred to the Outside Review Committee that made recommendations to the Chief Inspector in these cases. In several instances, the Chief Inspector ignored the recommendation of the Outside Review Committee altogether. For example, in connection with one grievance, the Outside Review Committee recommended the development of a recreation schedule for inmates holding certain work assignments or participating in the institution’s college program. The Chief Inspector’s resolution made no mention of the Committee’s recommendation. In another case, the Outside Review Committee correctly pointed to the precise statement in the Inmate Manual that notice of any new rule should be given, save in exceptional circumstances, five days in advance of its implementation. Although the Chief Inspector found that “some of the (inmate’s) argument ... is not without merit,” he took no steps to prevent recurrence of the problem that led to the grievance. In another instance, the Chief Inspector rejected the recommendation of the Outside Review Committee concerning the seniority system used in assigning cells without giving proper weight, at least in the text of his decision, to the recommendation of the Outside Review Committee. In one case involving an allegation of homosexual assault by an officer in the course of a shakedown, the Chief Inspector not only ignored the outside review recommendation that a second officer be present during a shakedown when this is possible, but went on to warn the inmate/grievant of the possibility of imposition of a disciplinary sanction for false allegations in a grievance. It should be noted that the written recommendation of the Outside Review Committee carefully refrained from any determination of the truthfulness of either the inmate’s or the officer’s testimony before the outside review panel.

In several cases, the Chief Inspector r

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