Hendrix v. Faulkner

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

SHARP, District Judge.

This action is a suit under 42 U.S.C. § 1983 challenging conditions' of confinement at the Indiana State Prison (hereinafter I.S.P.) at Michigan City, Indiana. The I.S.P. is an all male maximum security correctional facility, which has been in existence at the present location approximately 120 years. Jurisdiction is conferred by 28 U.S.C. § 1343 (3) and (4).

The Court has consolidated herein three actions, cause numbers S 76-187, S 77-35 and S 79-32, wherein the plaintiffs seek individual damages and injunctive and de

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claratory relief on behalf of all inmates confined at the I.S.P. A class certification is sought and will be dealt with herein. Specifically, plaintiffs ask that the Court find, upon consideration of the totality of the conditions at the I.S.P., that those conditions violate the Eighth and Fourteenth Amendments to the Constitution of the United States.

Plaintiffs in S 76-187 whose claims have not been dismissed or severed are James Odis Hendrix, Grady Thomas Bobbitt, Melon Carroll, Donald R. Sceifers, and James Blackburn. Each is an offender incarcerated at the Prison. Defendants in S 76-187 are Gordon Faulkner, Commissioner, Jack Duckworth, Warden, and Edward Jones, Director of Classification and Treatment at the Prison.

Plaintiff in S 77-35 is Billie R. Adams, who is an offender incarcerated at the Prison. Defendants in S 77-35 are Jack Duck-worth, J. F. Kozlowski, P. G. Youngblood, Bob Glaney, R. Shriver, Rodney Keith, Ronald Batchelor, Byron Glick and G. Wilkins. J. F. Kozlowski is no longer employed at the Prison.

Plaintiffs in S 79-32 are Bruce Wellman, Dwight Walker, Douglas Shackelford a/k/a Achebe H. Lateef, Raymond Hurt, Richard Colvin and Stewart Brooks. Walker, Shackelford and Colvin are offenders incarcerated at the Prison. Wellman, Hurt and Brooks were previously incarcerated at the Prison. Defendants in S 79-32 are Gordon Faulkner, Norman Hunt, Cloid L. Shuler, Dean Nietzke, Jack Duckworth, Edward Jones, Major Gothel D. Wilkins, Ronald Freake, M.D., Roger D. Saylors, M.D., Captain Eugene Koziatek, Sgt. Byron Glick, Lt. Robert McKee, Officer John M. Sharp, Lt. John Riggs, Officer Bill J. Kennedy, and Lt. David G. Oden. Riggs is deceased. Saylors is no longer employed at the Prison and is not serving the Prison under contract. Kennedy is no longer employed at the Prison.

In cases of this kind, this Judge is every mindful of the limited right the federal courts have to adjudicate claims that arise from state prison confinement. Noted opinions have been handed down from every level of the federal court system that advise extreme caution in adjudicating claims that essentially involve the general administration of a state prison and do not reach, as they must, the level of constitutional violations. Justice Powell of the Supreme Court of the United States set forth the reason for this principle in striking and memorable language:

“[T]he problems of prisons in America are complex and intractable, and more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.”

Procunier v. Martinez,

416 U.S. 396 at 405 , 94 S.Ct. 1800 at 1807 , 40 L.Ed.2d 224 (1979).

The Supreme Court of the United States has continuously expressed its adherence to this doctrine of restraint from undue interference in the administration of state prisons unless federal constitutional violations and deprivation are clearly evident. The principle has been enunciated again and again with a variety in the language. The dominant thought remains clear. The most recent statement of this settled principle is contained in

Rhodes v.

Chapman, --- U.S. ---, 101 S.Ct. 2392 , 69 L.Ed.2d 59 (1981), stating that courts must bear in mind that their inquires “spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.”

Rhodes, supra,

at ---, 101 S.Ct. at 2401 , citing

Bell v. Wolfish,

441 U.S. 520, 539 , 99 S.Ct. 1861, 1874 , 60 L.Ed.2d 447 (1979). Federal judges must be circumspect not to interfere without warrant and subject themselves to the suspicion that “it is the office of the good judge to enlarge his jurisdiction.” 1 Works of Thomas Jefferson 121-22 (Federal ed. 1904).

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This Judge has indicated from the beginning of this case to the present time, a complete and utter distaste for having to cross that Rubicon which separates the federal government from the state government and enter into the morass of the day to day operation of the prison.

THE PLAINTIFF CLASS

Plaintiffs have moved the Court to determine that this action should be maintained as a class action under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

A threshold requirement for class certification is the existence of a class which requires representation.

Dolgow v. Anderson,

43 F.R.D. 472, 491 (E.D.N.Y. 1968), summary judgment rev’d, 438 F.2d 825 (2d Cir. 1971);

Ridgeway v. International Brotherhood of Electrical Workers,

74 F.R.D. 597, 602 (D.Ill.1977). The class, as well as its members, must be clearly defined and identified with particularity.

Williams v. Page,

60 F.R.D. 29, 34 (N.D.Ill.1973);

Inmates of Lycoming County Prison v. Strode,

79 F.R.D. 228, 231 (M.D.Pa.1978).

The proposed class consists of “those prisoners who are, or may be in the future, confined at the Indiana State Prison, Michigan City, Indiana, in the custody of the Indiana Department of Correction.” This type of class has been described as “obviously definable and identifiable.”

Inmates of Lycoming County Prison v. Strode, supra.

In this context, it has further been said that:

“The use of the class action form is a desirable and logical way to challenge prison conditions and it only makes sense to include future inmates. See

Santiago v. City of Philadelphia,

72 F.R.D. 619 (E.D.Pa.1976);

Miller v. Carson,

401 F.Supp. 835 (M.D.Fla.1975);

Dillard v. Pitchess,

399 F.Supp. 1225 (C.D.Cal. 1975).”

Inmates of Lycoming County Prison v. Strode, supra.

Each potential member of the class is not required to be identifiable, but merely “circumscribed by some objective set of criteria.”

Ridgeway v. I.B.E.W., supra; Carpenter v. Davis,

424 F.2d 257 (5th Cir. 1970). Plaintiffs’ definition of the class for which certification is now being sought clearly meets this requirement. See, generally,

Alliance to End Repression v. Rochford,

565 F.2d 975, 977-978 (7th Cir. 1977).

A second threshold requirement for class certification is that the representatives are members of that class.

Equal Employment Opportunity Comm. v. Whirlpool Corp.,

80 F.R.D. 10, 14 (N.D.Ind.1978);

Inmates of Lycoming v. Strode, supra.

This prerequisite has been described as “the most fundamental requirement of Rule 23(a).”

E.E.O.C. v. Whirlpool Corp., supra.

The named plaintiffs here are prisoners who are confined at the Indiana State Prison, Michigan City, Indiana, in custody of the Indiana Department of Correction. Complaint at 2 and 4 (Pars. 1 and 7), and, therefore, these representatives are members of the proposed class.

A.

The class is so numerous that joinder of all members is impracticable.

The proposed class consists of the current prisoner population at the Prison, numbering approximately 1900 persons. The class would also include all those persons who, in the future, are incarcerated at I.S.P., potentially hundreds or thousands of additional class members. It is appropriate to include future inmates in a class action challenging prison conditions.

Ahrens v. Thomas,

570 F.2d 286, 288 (8th Cir. 1978);

Inmates of Lycoming County Prison v. Strode, supra,

at 231.

While numbers alone do not satisfy the numerosity requirement, they are a relevant consideration. In

Swanson v. American Consumer Industries, Inc.,

415 F.2d 1326 (7th Cir. 1969), it was held that 151 class members was a sufficient number to satisfy the requirement of F.R.Civ.P. 23(a)(1). Joinder of 1008 class members has also been held to be impracticable.

Hopson v. Schilling,

418 F.Supp. 1223 at 1236-1237 , as it has when the class included “hundreds of persons,”

Ridgeway v. I.B.E.W., supra,

at

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603. The inclusion within the class of persons who will, in the future, be incarcerated at I.S.P. makes the class even more numerous, and makes joinder of all class members totally impracticable. It has been said that “the term ‘impracticable’ within the meaning of Rule 23(a)(1) does not refer to impossibility but only to difficulty or inconvenience.”

Vernon J. Rockler and Co. v. Graphic Enterprises, Inc.,

52 F.R.D. 335, 339 (D.Minn.1971).

Both the size of the proposed class here and its fluid, indeterminable nature render joinder unwise, imprudent and impractical, the essential elements of impracticability. 3B

Moore’s Federal Practice,

¶ 23.05, pp. 271, 272 (1976);

Swanson v. American Consumer Industries, Inc., supra,

at 1333. Therefore, a class action is the procedural vehicle of choice in the present litigation.

B.

There exist questions of law and fact common to the class.

The questions of law and fact common to the class in this action are:

Whether the conditions, practices, and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their right to be free from cruel and unusual punishment as guaranteed to them by the Eighth and the Fourteenth Amendments to the Constitution of the United States;

Whether the conditions, practices and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of due process of law as guaranteed to them by the Fourteenth Amendment to the Constitution of the United States;

Whether the conditions, practices and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their right to free speech as guaranteed to them by the First and the Fourteenth Amendments to the Constitution of the United States; and

Whether the conditions, practices, and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their rights to educational and rehabilitative programs, as guaranteed to them by Article I § 18 of the Constitution of the State of Indiana and by I.C. 11-1-1.-1-26 and 11-1-1.1-27 of the laws of the State of Indiana.

A class action is particularly well-suited to this civil rights case alleging that certain conditions, practices, and procedures of defendants violate constitutional guarantees.

Newman v. Alabama,

349 F.Supp. 278 (M.D.Ala.1972),

aff’d,

503 F.2d 1320 (5th Cir. 1974),

cert. den.,

421 U.S. 948 , 95 S.Ct. 1680 , 44 L.Ed.2d 102 (1975);

Bishop v. Stoneman,

508 F.2d 1224 (2d Cir. 1974);

Battle v. Anderson,

376 F.Supp. 402 (E.D.Okl.1974). Courts have unhesitatingly certified classes when confronted with similar problems involving prisoners.

Jackson v. Bishop,

404 F.2d 571 (8th Cir. 1968);

Johnson v. Rockefeller,

58 F.R.D. 42 (S.D.N.Y.1973);

Washington v. Lee,

263 F.Supp. 327 (M.D.Ala.1966),

aff’d sub nom., Lee v. Washington,

390 U.S. 333 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 (1968);

Inmates of Attica Correctional Facility v. Rockefeller,

453 F.2d 12 (2d Cir. 1971).

C.

The claims of the class representatives are typical of the claims of the class.

The named plaintiffs have alleged deprivation of their statutory and constitutional rights by operation of challenged policies, practices and conditions of defendants. All of the named plaintiffs have an interest not only typical of but actually coextensive with that of the class. Each and every inmate of I.S.P. has an identical interest in seeing that the defendants are required to operate the I.S.P. so as not to deprive them of the rights guaranteed to them by the First, Eighth and Fourteenth Amendments to the Constitution of the United States. The claims of the representative parties and those of the class are based upon alleged violations of these same constitutional provisions.

D.

The class representative will fairly and adequately protect the interests of the class.

The standard for adequacy of representatives under Rule 23(a)(4) is that the

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representatives must be of such a character as to assure the vigorous protection of the action so that the absent class members’ rights are certain to be protected.

Hohmann v. Packard Instrument Co.,

399 F.2d 711 (7th Cir. 1968).

The first requirement is plainly met in this case. Named plaintiffs’ interests in securing their statutory and constitutional rights is co-extensive with the similar interests of all class members. Secondly, the named plaintiffs have a vital personal stake in the outcome of the case so as to insure zealous pursuit of the action.

Rodriquez v. Swank,

318 F.Supp. 289 (N.D.Ill.1970),

aff’d,

403 U.S. 901 , 91 S.Ct. 2202 , 29 L.Ed.2d 677 (1971).

The second element of adequate representation is that the named plaintiffs’ counsel be sufficiently competent to conduct the proposed litigation.

Sullivan v. Chase Investment Services, Inc.,

79 F.R.D. 246 (N.D.Cal.1978);

Jenson v. Continental Financial Corp.,

404 F.Supp. 806 (D.Minn.1975). Plaintiffs are represented by attorneys from Legal Services Organization of Indiana, Inc., and Legal Services Program of Northern Indiana, Inc., both being legal services programs which have extensive experience in prison law and in protecting the rights of group litigants. Legal Services Organization has adequate resources available to fully pursue this action. The attorneys who are counsel of record in this case are experienced in conducting litigation of this type. Thus, plaintiffs’ counsel has the experience and the resources to protect and forward the interests of not only the named plaintiffs but also each member of the class.

THE PRESENT CASE FALLS WITHIN THE CATEGORY OF CLASS ACTIONS IN WHICH THE PARTY OPPOSING THE CLASS HAS ACTED OR FAILED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE FINAL INJUNCTIVE AND DECLARATORY RELIEF WITH RESPECT TO THE CLASS AS A WHOLE.

In addition to satisfying the requirements of Rule 23(a), the present actions falls within the criteria of Rule 23(bX2). The

Notes of the Advisory Committee,

39 F.R.D. 69 , 102 (1976), suggest that subsection 23(b)(2) is uniquely suited to civil rights actions to redress constitutional deprivations of large classes of persons. See also,

Fujishima

v.

Board of Education,

460 F.2d 1355, 1360 (7th Cir. 1972);

Inmates of Lycoming County Prison v. Strode, supra,

at 234;

Hopson v. Schilling, supra,

at 1237;

Dixon v. Quern,

76 F.R.D. 617 (N.D.Ill.1977). These are two elements which must be present for an action to fall within 23(b)(2): “the defendants’ conduct or refusal to act must be ‘generally applicable’ to the class”; and, “final injunctive or corresponding declaratory relief must be requested for the class.”

Kornbluh v. Stearns & Foster Co.,

73 F.R.D. 307, 310 . Both elements are met in the instant case.

As has been previously set out in this memorandum, all class members in this case are being subjected to the conditions, policies and practices about which the named plaintiffs complain. In that light, it is clear that class relief would be the appropriate vehicle for resolution of this action, since the conditions, policies and practices will continue to apply to those who do not come within the scope of any final order.

Since the constitutional violations complained of herein are based on practices, policies and conditions applicable to each and every member of the class, declaratory and injunctive relief with respect to the class as a whole may be appropriate. Therefore, the proposed class is certified pursuant to F.R.Civ.P. 23(a) and 23(bX2).

II.

INDIVIDUAL PLAINTIFFS’ CLAIMS

A.

Bruce Wellman

Plaintiff Wellman was incarcerated at the I.S.P. from October 1976 to June 8, 1979. Approximately seven months of this period was spent outside the institution on court order. At the time of trial Wellman

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was not an inmate at the I.S.P. Wellman’s deposition was introduced into evidence and his claim is based on evidence found in that deposition.

Plaintiff Wellman first contends that he was denied due process before the Conduct Adjustment Board (hereinafter C.A.B.), when they denied his request to have witnesses appear on his behalf and refused him the lay advocate of his choice. Plaintiff Wellman had requested that Albert Cornell be permitted to represent him but the C.A.B. provided inmate Arthur Wilson as lay advocate.

The uncontradicted evidence is that Wellman appeared before the C.A.B. in December 1977 and asked that he be allowed to call three witnesses, all inmates. This request was denied without comment. Plaintiff Wellman contends this denial of his right to call witnesses violated procedural due process as required by

Wolff v. McDonnell,

418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974).

Wolff, supra,

recognized that prison inmates are entitled to a degree of the protections afforded by the due process clause in prison disciplinary proceedings. Id. at 555-556 , 94 S.Ct. at 2974. The Supreme Court stated therein:

We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases.

Wolff, supra,

at 565-566 , 94 S.Ct. at 2979.

The Seventh Circuit Court of Appeals has addressed the limited right of inmates to call witnesses at disciplinary hearings. See

Hayes v. Walker,

555 F.2d 625 (7th Cir.1977) (hereinafter

Hayes I).

In

Hayes I,

the Court of Appeals held that the district court erroneously dismissed the witness denial portion of Hayes' complaint because the record before the court did not permit “even limited review” of the disciplinary committee’s decision. The court stated:

The Institutional Adjustment Committee offered in justification of its action only broad conclusory findings of possible hazard both to potential witnesses and to institutional security which applied to all of the proposed witnesses on plaintiff’s list. There is no indication in the record that the Institutional Adjustment Committee examined each proposed witness for the relative benefit or danger in his testimony. Similarly, this court cannot determine whether the broad conclusion applicable to all of the witnesses was improper as to individual witnesses. Since the record is barren of support for these broad conclusions, we find that the case must be returned to the district court for a determination of whether the Institutional Adjustment Committee’s decision was a proper exercise of discretion.

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We are not requiring that a statement of reasons be given to support the denial of a request for witnesses.

We hold only that some support for the denial of a request for witnesses appear in the record. Hayes I, supra,

at 630 (emphasis added)

The Court of Appeals in

Hayes I

reversed and remanded the cause to the district court to determine if the complete administrative record justified the decision not to call witnesses. At trial the district court heard testimony from the Institutional Adjustment Committee members as to their basis for reaching their decision on Hayes’ request for witnesses. This testimony formed the basis for the district court’s decision that the Committee’s denial of Hayes’ request for witnesses was a proper exercise of discretion.

The Court of Appeals, however, reversed this decision in

Hayes v. Thompson,

637 F.2d 483 (7th Cir. 1980) (hereinafter

Hayes II.)

The court stated:

Although it may be relevant to other issues in this case, it is clear that under

Hayes I

this subsequent testimony may not be considered in reviewing the Committee’s decision.

The requirement of support in the administrative record is central to the effectiveness of judicial review in insuring that a prisoner has not be subjected to arbitrary action by prison officials.

If subsequent testimony is allowed to substitute for support in the record, the Court can no longer assure itself that the Committee made a reasoned, well-founded decision. Such posthoc rationalizations are to be viewed with suspicion, and are not a proper basis for meaningful judicial review.

Support in the administrative record is necessary to protect the prisoner from arbitrary official action, and is a minimum requirement of

due process.

Hayes II, supra,

at 488. (emphasis added)

The Court then concluded that the broad conclusory findings of the Committee in denying the request for witnesses were not adequate to allow judicial review. Therefore, the denial constituted an abridgement of Hayes’ due process rights.

Here the conclusions must be the same. There is no evidence that plaintiff Well-man’s proposed witnesses were examined individually for the relative danger or benefit of their testimony. Nor is there any support in the record for the denial of Well-man’s request for witnesses. There is only a blank denial, barren of any rationale for support. This record provides no basis for meaningful judicial review so as to insure that a prisoner is protected from arbitrary government action.

Hayes II, supra,

at 488;

Bono v. Saxbe,

620 F.2d 609, 619 (7th Cir. 1980). Therefore, the Court must conclude that the denial of Wellman’s request for witnesses violated his due process rights.

This circuit in

Bono, supra,

at 619 , approved the district court’s order which required the hearing officer to document his reasons for not calling witnesses or introducing documentary information. The district court required in

Bono v. Saxbe,

462 F.Supp. 146 (E.D.Ill.1978), that:

An inmate will be permitted to have witnesses appear and to present documentary evidence, provided that calling of witnesses or disclosure of documentary evidence would not jeopardize or threaten institutional security or individual safety, and further provided that the witnesses are available at the institution where the hearing is being conducted. The evidence must be material and relevant to the issue ... Where a witness is not available within the institution, nor permitted to appear, the inmate may submit a written statement by that witness. The hearing administrator shall, upon the inmate’s request, postpone the hearing to permit the obtaining of written statements. Repetitive witnesses need not be called. Reasons for declining to permit a witness or documentation shall be documented. Id., at 150 .

The circuit court further explained in

Hayes II

that the prison disciplinary committee must examine each proposed witness for the relative benefit or danger of his testimony.

Hayes II, supra,

at 486.

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The defendants shall comply with these aforementioned guidelines enunciated by the Court of Appeals in regard to an inmate’s right to call witnesses at a disciplinary hearing. Further, the conduct report at issue here shall be stricken from plaintiff Wellman’s institutional packet regardless of where he is incarcerated.

Plaintiff Wellman secondly complains that he was denied the lay assistant of his choice at the disciplinary hearing. The Supreme Court in

Wolff, supra,

418 U.S. at 570 , 94 S.Ct. at 2981 , stated that: [an inmate], “should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff”. Plaintiff Wellman has not criticized the ability of the lay advocate provided him in any way. Rather, he complains of not getting the advocate of his choice. This does not rise to a constitutional level because the C.A.B. fully complied with the requirements of

Wolff

in regard to lay assistance. This allegation is therefore without merit.

Plaintiff Wellman’s third complaint is that in January 1978 he broke a tooth on a rock in the beans at the prison dining hall. Wellman allegedly asked to see the dentist a number of times but was told by an unnamed source that lockup people did not go to the hospital and to put aspirin in the tooth. Then nine months after the injury Wellman claims to have paid an inmate clerk three boxes of cigarettes for an appointment with the dentist. He saw the dentist immediately. This evidence was elicited by the defendant’s own attorney and stands uncontradicted.

However, plaintiff Wellman’s proof on this issue lacks a critical element. There is no identified actor in this chain of events, neither guard, nor doctor or dentist, nor prison administrator, nor inmate. Plaintiff Wellman here seeks damages. A defendant’s direct personal responsibility for the claimed deprivation of a constitutional right must be established in order for liability to arise under 42 U.S.C. § 1983 .

Stringer v. Rowe,

616 F.2d 993, 1000-1001 (7th Cir. 1980);

Adams v. Pate,

445 F.2d 105, 108 (7th Cir. 1971). Nor is this a situation where a pro se pleading is being considered. See,

Haines v. Kerner,

404 U.S. 519 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972);

Duncan v. Duckworth, 644

F.2d 653 (7th Cir. 1981). Plaintiff Wellman was represented by able trial counsel who had named 17 defendants at the time of trial. Not one of those defendants is even mentioned in Wellman’s testimony; in fact, no individual is ever named or described.

The trial of a lawsuit is the main event, the arena where the evidence must be put on. This Court heard one hundred and eleven witnesses and not one testified as to who the participants were in this scenario. The claim, if true, may state a claim under

Estelle v. Gamble,

429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976), but plaintiff Wellman, with able counsel, has failed to put on any proof showing that any of the defendants were in any way personally responsible for the delay in his treatment. Therefore, the defendant has failed to prove his claimed denial of medical treatment and it is accordingly dismissed.

Finally, the prison officials contend they acted in good faith on a belief that their actions conformed to the procedural requirements of

Wolff, supra,

and they should therefore be immune from damages. The Supreme Court has recognized a qualified good-faith immunity for state prison officials acting within the scope of their official responsibilities when damages are sought for constitutional violations under 42 U.S.C. § 1983 .

Procunier v. Navarette,

434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 (1978).

Accord, Knell v. Bensinger, 522

F.2d 720 (7th Cir. 1975). In

Navarette ,

a state prisoner brought a § 1983 action against prison officials charging wrongful interference with his outgoing mail, a violation of his First Amendment rights. The Supreme Court held that the qualified immunity it had outlined for school officials in

Wood v. Strickland,

420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), was applicable to state prison officials as well. The test enunciated in

Navarette

consists of two parts:

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Under the first part of the

Wood v. Strickland

rule, the immunity defense would be unavailing to [the prison officials] if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm.

******

[T]he second branch of the

Wood v. Strickland

standard ... would authorize liability where the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.”

Navarette,

434 U.S. at 562, 566 , 98 S.Ct. at 862 ,

quoted in Chapman v. Pickett,

586 F.2d 22, 25 (7th Cir. 1978).

It is this two-pronged test which we apply here.

This denial of witnesses occurred in December 1977. The

Wolff

decision provided only that a request for witnesses may be denied if it will be unduly hazardous to institutional safety or correctional goals.

Wolff, supra,

418 U.S. at 565 , 94 S.Ct. at 2979 . Not until this circuit decided

Hayes II

in December 1980 and

Bono v. Saxbe

in April 1980 was it “clearly established” that due process required documented support in the administrative record for a decision not to call witnesses. Thus, these defendants could not have reasonably known that

Wolff

could be read to require an administrative record more specific than the reasons enumerated in the

Wolff

decision. Therefore, the defendants are immune from damages for their denial of the witness request.

B.

Dwight Walker

Plaintiff Walker has been incarcerated at the I.S.P. for seven years. He has raised two separate individual claims for damages. First, plaintiff Walker contends that excessive force was used to effectuate a strip search of his person, and second, that during his incarceration he was placed in segregation units without any notice as to why he was being locked up.

In December 1978 plaintiff Walker was summoned to testify in a criminal matter in Pulaski County, Indiana. Captain Koziatek informed Walker that he would have to be strip searched before leaving the prison. Walker refused to be strip searched and was warned he would have a conduct report if he did not comply. Walker still refused to submit to the search. On his return to the prison Walker was taken to I.D.U. lockup unit by Lt. Oden. Walker was then asked to step out of his clothes for a strip search and he did so. Lt. Oden then ordered Walker to stick his finger in his mouth, lift his genitals, and bend over and spread his buttocks for a visual rectal inspection. Walker refused to submit to this portion of the search. Lt. Oden then grabbed Walker around his neck and Officer Kennedy grabbed Walker’s arm and twisted it up behind his back in an attempt to bend Walker over to subject him to the visual cavity search. Plaintiff Walker contends that Sergeant Riggs (deceased at the time of trial) rammed him with his knees in this altercation. Lt. Oden testified that Sgt. Riggs was about six feet away from Walker making the visual examination of the rectal area. It is extremely convenient that the person alleged to have used the most force, Sgt. Riggs, is unable to testify on his own behalf. Nor is this claim supported by any witness other than the plaintiff. For those reasons this Court discredits this allegation against Sgt. Riggs that he struck Walker with his knee. Plaintiff Walker further contends that the force employed was so excessive as to cause him personal injury. The uncontradicted facts establish that all inmates when returning from outside the institution are strip searched.

The Supreme Court of the United States addressed the issue of strip searching inmates with the visual inspection of body cavities in

Bell v. Wolfish,

441 U.S. 520, 558 , 99 S.Ct. 1861, 1884 , 60 L.Ed.2d 447 (1978). The court recognized that these searches were necessary not only to discover but also deter the smuggling of weapons, drugs, and

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other contraband into a prison. In

Wolfish ,

the court concluded that strip searches, including the exposure of body cavities for visual inspection, did not violate the Fourth Amendment prohibition against unreasonable searches.

Id.,

at 558 , 99 S.Ct., at 1884 . However, the court went on to say that the searches must be conducted in a reasonable manner. Reasonableness under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.

Wolfish, supra,

at 558 , 99 S.Ct., at 1884 .

The evidence here indicates that the smuggling of contraband is a serious problem in this institution, just as it is in other correctional facilities. See, e. g.,

Daughtery v. Harris,

476 F.2d 292 (10th Cir.),

cert. en.,

414 U.S. 872 , 94 S.Ct. 112 , 38 L.Ed.2d 91 (1973). The Supreme Court, in balancing this institutional interest in security against the privacy interest of the inmates, determined that such a search was constitutional.

The question here is whether the force used to administer this search was so excessive as to become actionable under § 1983. See

Johnson v. Glick,

481 F.2d 1028 (2d Cir.), cert. den. sub nom.,

Employee-Officer John v. Johnson,

414 U.S. 1033 , 94 S.Ct. 462 , 38 L.Ed.2d 32 (1973).

Johnson, supra,

clearly establishes that prison officials violate due process upon making an unprovoked attack on a pretrial detainee.

Id.,

at 1033;

Lock v. Jenkins,

641 F.2d 488, 495 (7th Cir. 1981). Judge Friendly, speaking for the court in

Johnson,

provided this structure for analysis:

Although “the least touching of another in anger is a battery,” [citation omitted], it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983 . The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force.

Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Johnson, supra,

at 1033. [emphasis added]

The Seventh Circuit has applied this same analytic framework to the treatment of convicted persons which thus invoked the Eighth Amendment rather than the Due Process Clause.

Stringer v. Rowe,

616 F.2d 993, 998-999 (7th Cir. 1980);

Lock, supra,

at 496, n.13 . In order to establish a violation of the Eighth Amendment, a plaintiff must show that prison officials intentionally inflicted excessive or grossly severe punishment on him or knowingly maintained conditions so harsh as to shock the general conscience.

Stringer, supra,

at 998 ;

United States ex rel. Miller v. Twomey,

479 F.2d 701, 719-2 (7th Cir. 1973),

cert. den. sub nom. Gutierrez

v.

Dept. of Public Safety,

414 U.S. 1146 , 94 S.Ct. 900 , 39 L.Ed.2d 102 (1974). The essential question then becomes whether this use of a force constituted cruel and unusual punishment.

Stringer, supra,

at 999 ; see also,

Meredith v. Arizona,

523 F.2d 481 (9th Cir. 1975).

This Court is well aware of the demanding and often dangerous position of prison guards in the institutional society. Here the guards, when faced with a recalcitrant inmate, applied physical force. They laid hands on plaintiff Walker but there is no claim of the use of gas, mace, fists, or clubs. In this situation where Walker had been outside the institution, possibly unsupervised at times, the strip search becomes a necessity. To allow the inmate to thwart the rectal inspection by mere refusal would be to provide a conduit for contraband. Legion are the cases in which inmates have attempted to smuggle contraband into an institution by concealing it in body cavities. See, e. g.,

United States v. Ferraro,

590 F.2d 335 (6th Cir. 1978);

United States v.

*450

Park,

521 F.2d 1381 (9th Cir. 1975). Here the officers applied only enough force to bend Walker over to view his rectal area. This was a good faith effort to maintain institutional security. And although Walker claims he was injured, his testimony is conflicting. At one point he complains of a back injury and at another it is a neck injury. However, on January 3, 1981 he registered no complaint about his back or neck, instead he complained of his thumb. Accordingly, his hand was x-rayed on January 5, 1981 and shown to be normal. In light of these considerations the Court must find that the force used in conducting this involuntary visual rectal inspection was not excessive. It was not so severe or excessive as to shock the conscience in violation of the Eight Amendment. In fact, it was reasonable under the circumstances. Therefore, this claim is without merit.

Plaintiff Walker’s second claim is that he was locked up in segregation on several occasions without any notice as to why he was being locked up. Walker testified he had been locked up without a hearing in March or April of 1975, and periodically through the years of 1977, 1978 and 1979. His contention is that he never received notice within 24 hours as to why he was locked up. Further, plaintiff Walker alleges he was denied the right to consult with his lay advocate in January 1979 until the day of the hearing. Walker also contends Acting C.A.B. Chairman Penfold gave him 60 days in lockup after he was found not guilty of all charges because “he had to be guilty of something”. (R. 139). Unfortunately, Mr. Penfold is not a defendant in any of these consolidated actions. Finally, plaintiff Walker contends he was put on administrative segregation status on April 4, 1978 without any notice as to the reason for it. And, he was subsequently released from A.S. without signing a conduct contract.

This Court is aware that inmates often feel they are moved about by hidden forces beyond their control. However, to establish liability for any of these alleged procedural due process violations evidence which at least implicates any defendant is required. That evidence is lacking here. There is only general uncorroborated testimony that these lockups occurred. Yet no specific actor is ever named as responsible. This portion of plaintiff Walker’s claim suffers the same failure of specific proof as plaintiff Wellman’s allegation of denial of medical treatment. The Court refers to and incorporates by reference that analysis here. There is no evidence identifying any of the named defendants as the actor responsible for any part of the alleged violation. Therefore, these allegations must fail for lack of proof under

Adams v. Pate, supra,

at 108.

C.

Achebe Habib Lateef

Plaintiff Lateef is currently an inmate at the I.S.P. and was first incarcerated there on September 5, 1975. He was assigned to a job in the I.S.P. library in 1975 and was employed there continuously until June 27, 1980. The library was considered to be a desirable place to work. On June 27, 1980 plaintiff Lateef was transferred from the I.S.P. to the Indiana Reformatory. This was the first in a series of four institutional transfers for Lateef in a four month period. Plaintiff Lateef contends that this series of transfers were solely for the purpose of personal harassment.

Plaintiff Lateef was transferred to the Indiana Reformatory on June 27, 1980. On that date he received a notice from the Director of Classification informing him that effective immediately he was being transferred to the reformatory where he would enter the general population. The notice stated that this was an administrative transfer in Lateef’s best interest as well as that of the institution and that this was not a disciplinary transfer. Lateef was confined at the Indiana Reformatory from June 27, 1980 until August 12, 1980 at which time he was transferred to the Indiana Department of Correction’s Reception and Diagnostic Center.

At the Reception and Diagnostic Center plaintiff Lateef was interviewed by a psychologist on one occasion for about an hour

*451

and the classification director a number of times. Lateef did not undergo any tests. On September 3, 1980, after approximately 21 days at the Reception and Diagnostic Center, plaintiff Lateef was transferred back to the Indiana Reformatory where he was assigned to the general population. Then on October 29, 1980 Lateef was returned to the I.S.P. and assigned to the N.S.B. lockup unit.

Plaintiff Lateef contends that this series of transfers were for the purpose of harassment and retaliation. As a result of these transfers Lateef alleges as damages that his contacts outside the prison have been disrupted, that he lost property, including clothing and books, and that he developed assorted medical conditions.

On November 17, 1980, plaintiff Lateef was advised by the I.S.P. Classification Committee that unless he signed a behavior modification contract he would be placed on indefinite administrative segregation and confined to a lockup unit. Lateef, (Tr. 70). At the hearing of the Classification Committee on November 17, 1980, the committee gave plaintiff Lateef several reasons why he was being assigned to administrative segregation. The contract which was proposed to plaintiff Lateef would have required that he work in the soap shop for approximately a year, he not receive a conduct report for 12 months, he be denied evening recreation for a period of six months, and other miscellaneous restrictions. The job in the soap shop which was required by the behavior modification contract was not as desirable a job as plaintiff Lateef held in the prison library prior to his transfer to the Indiana Reformatory and plaintiff Lateef considered it to be a form of punishment.

At this meeting of the Classification Committee on November 17, 1980, plaintiff Lateef was presented with a memorandum from the Director of Classification outlining the reasons why he believed a behavior contract was appropriate. This document referred to Lateef’s involvement in the takeover of C cell house in April 1980, which included the taking of hostages and his involvement with the planning of a work stoppage while at the Indiana Reformatory. This later incident was the stated reason for Lateef’s transfer back to the I.S.P. Based on this past conduct, the Director of Classification determined that Lateef’s behavior needed modification and recommended this contract in population. Plaintiff Lateef refused this contract and has remained in N.S.B. lockup or administrative segregation. On N.S.B. lockup Lateef is confined to his cell 22 hours a day and allowed out two hours a day for recreation in the walkway in front of the cells.

The Executive Director of Adult Authority, Indiana Department of Corrections, Mr. Schuler, testified that he was aware of the reasons for the transfers of plaintiff Lateef. This testimony essentially expands the written reasons provided to Lateef, particularly in regard to the takeover of C cell house and the work stoppage at the Indiana Reformatory. Additionally, Mr. Schuler was briefed in regard to the previous conduct of Lateef while incarcerated prior to these transfers. Further, Mr. Schuler received a report from the Reception and Diagnostic Center after Lateef’s evaluation, that there was no assistance they could provide there. And finally, Schuler testified that no prisoner had ever been sent to the Diagnostic Center to punish or harass him.

The threshold question regarding Lateef’s complaint must be whether these transfers between institutions within the |ame state infringed a liberty interest protected by the Due Process Clause. In

Meachum v. Fano,

427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976), and

Montanye v. Haymes,

427 U.S. 236 , 96 S.Ct. 2543 , 49 L.Ed.2d 466 (1976), the Supreme Court considered the conditions that must be present for a prisoner to be entitled to a hearing before his transfer from one state prison to another prison within the same state. The court “held in

Meachum v. Fano,

that no due process liberty interest of a duly convicted prison inmate is infringed when he is transferred ..., whether with or without a hearing, absent some right or justifiable exception rooted in state law that he will

*452

not be transferred except for misbehavior or upon occurrence of other specified events.”

Montanye, supra,

at 243 , 96 S.Ct. at 2547. In adopting this standard the Seventh Circuit Court of Appeals has recognized that a prisoner may have due process rights as a result of entitlements created by prison regulations and by official policies or practices.

Arsberry v. Sielaff,

586 F.2d 37, 47 (7th Cir. 1978); see also,

Stringer v. Rowe,

616 F.2d 993 (7th Cir. 1980);

Anthony v. Wilkinson,

637 F.2d 1130 (7th Cir. 1980).

Critical in this analysis is plaintiff Lateef’s claim that these transfers were punitive in nature. This is important because

Wolff v. McDonnell, supra,

is undisturbed by

Meachum

and

Montanye ,

and disciplinary measures which represent a change in conditions of confinement give rise to procedural due process requirements. Thus, if Lateef could establish that his transfer was disciplinary, he has stated a valid claim.

Chavis v. Rowe,

643 F.2d 1281, 1290 (7th Cir. 1981);

Durso v. Rowe,

579 F.2d 1365, 1369 (7th Cir. 1978),

cert. den.,

439 U.S. 1121 , 99 S.Ct. 1033 , 59 L.Ed.2d 82 (1979). However, there is no evidence of that in this case. The transfers to other institutions were not followed by any disciplinary punishment or loss of good time. Rather, the transfers appear to be the result of confrontations between Lateef and individuals in the institutions in which he was incarcerated. The Executive Director of the Adult Authority testified that it was their approach to remove such individuals, from the scene of the confrontation to a neutral environment to better enable them to adjust to their confinement. He further testified that this was one of the principal reasons behind Lateef’s transfer and that these transfers were not disciplinary in nature. This testimony is fully supported by the record of Lateef’s involvement in the takeover and hostage seizure of C cell house at the I.S.P. Nor does the Indiana Code restrict prison officials' decisions to transfer an inmate from one institution to another in any way. This Court can find no statutory or regulatory creation of a right for a prisoner to serve in any particular institution or be entitled to a hearing of any kind prior to a transfer to another institution. Therefore, plaintiff Lateef’s claim is without merit and is hereby denied.

Plaintiff Lateef also alleges that he lost a laundry bag full of clothing and personal items which he last saw in the hand of defendant Officer Bill Kennedy. After losing this property on December 15, 1977, Lateef filed a grievance with respect to this lost property but contends he has not received a response to the grievance nor been compensated for his lost property. This property is alleged to consist of clothing, personal pictures, a picture album, a watch, and a pair of eyeglasses. The essence of this claim is that plaintiff Lateef has been deprived of his property without due process of law. This evidence stands uncontradicted.

The Supreme Court has recently addressed this identical issue in

Parratt v. Taylor,

451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), citing with approval

Bonner v. Coughlin,

517 F.2d 311 (7th Cir. 1975), mod. en banc, 545 F.2d 565 (1976),

cert. den.,

435 U.S. 932 , 98 S.Ct. 1507 , 55 L.Ed.2d 529 (1978). In

Parratt

an inmate of a Nebraska prison ordered by mail certain hobby materials. After being delivered to the prison, the packages containing the materials were lost when the normal procedure for receipt of mail packages was not followed. Parratt brought a § 1983 action against the prison officials to recover the value of the hobby materials, claiming that the officials had negligently lost the materials and thereby deprived him of property without due process of law in violation of the Fourteenth Amendment. The value of the items in

Parratt

was $23.50.

Accordingly, the initial inquiry in

Parratt

and here must focus on two elements to a § 1983 action: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

*453

It is unquestionable that the alleged conduct by the corrections officer in this case satisfies the “under color of law” requirement.

Parratt, supra,

at 1913 . Officer Kennedy was a state employee in a position of considerable authority. Nor is it contended otherwise. The inquiry must therefore turn to the second requirement.

The claim here refers to no other right, privilege or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment. Unquestionably, Lateef’s claim satisfies three prerequisites of a valid due process claim: the defendant acted under color of state law; the previously listed items fall within the definition of property; and the alleged loss amounted to a deprivation. However, the Supreme Court held in

Parratt

that standing alone these three elements do not establish a violation of the Fourteenth Amendment.

Parratt, supra,

at 1913 . The court reasoned as follows:

Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive rer dress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb.Rev.Stat. § 81-8,209

et seq.

(Reissue 1976). Through this tort claims procedure the state hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question but respondent did not use it. It is argued that the State does not adequately protect the respondent’s interests because it provides only for an action against the State as opposed to its individual employees, it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process.

This analysis cited above is the proper manner to approach a case such as this. Here a guard took the plaintiff’s personal property and while we do not know what happened to it, we know that it was not properly preserved for Lateef. Likewise, the State of Indiana provides a remedy to redress property loss or damage inflicted by a state officer through the Indiana Tort Claims Act, I.C. 34-4 — 16.5-1 et seq. This act became effective February 19, 1974 and was therefore in effect when plaintiff Lateef’s loss occurred. It may reasonably be concluded, therefore, that the existence of an adequate state remedy for property damage inflicted by a state officer avoids the conclusion that there has been any constitutional deprivation of property without the due process of law within the meaning of the Fourteenth Amendment.

Parratt, supra,

at 1916 . For the foregoing reasons this claim is denied.

D.

Raymond Hurt

Plaintiff Hurt was incarcerated at the I.S.P. from 1973 until November 1980, except for approximately six months in 1974 when he was on parole. Plaintiff Hurt did not personally testify in this action, the evidence of his claims is based solely on his deposition which was admitted into evidence. Hurt was confined to N.S.B. and I.D.U. lockup units from 1976 to April 1979. He complained that in 1976 and prior to then he received food with roaches in it. No more specific evidence was provided and no foreign objects had been found in his food since 1976. There is no allegation of

*454

personal injury stemming from this evidence. It will be further considered herein with the food services.

Plaintiff Hurt contends that approximately $300.00 worth of his personal property was lost in April 1979. The specific items included a radio, books, and clothing. However, no defendant is named in this allegation so it must fail for lack of proof under

Adams v. Pate, supra,

and the Court refers to and incorporates here the same analysis as previously applied to Plaintiff Wellman’s claim for denial of medical treatment. Further, the Court refers to and incorporates here the analysis under

Parratt, supra,

as previously applied to plaintiff Lateef’s claim for lost personal property. In light of those aforementioned cases, this claim is denied.

Next Hurt alleges that he was denied his medication for asthma and had a difficult time obtaining that same medication in the lockup units. Hurt testified that he asked Dr. Saylors and Lt. Oden for his medication and was informed one time that the Warden had instructed them not to give out any medication in the lockup units. No date was ever established for these events. Dr. Mai, one of the staff physicians at the I.S.P., testified that sometimes there had been a delay in receiving supplies but that it had never interfered with the activity of the hospital. Mr. Freake, the Hospital Administrator, also testified that there was some delay in receiving medical supplies on orders of over $200.00 because they required approval of the Purchasing Department in Indianapolis. However, during these delays any shortages were filled by Memorial Hospital without delay. Finally, the Warden testified that he has not attempted to influence the medical staff in the administration of any medication to any particular inmate, and, that he has never overruled a prescription.

In

Estelle

v.

Gamble,

429 U.S. 97, 106 , 97 S.Ct. 285, 292 , 50 L.Ed.2d 251 (1976), the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’,

Gregg v. Georgia,

428 U.S. 153, at 173 , 96 S.Ct. 2909, at 2925 , 49 L.Ed.2d 859 (joint opinion), proscribed by the Eighth Amendment.” “This is true,” said the Court, “whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Id.,

429 U.S. at 104-105 , 97 S.Ct. at 291 . This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoners medical needs to be serious.

Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980);

West

v. Neve, 571 F.2d 158, 161 (3d Cir. 1978). A medical need is serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.

Laaman v. Helgemoe,

437 F.Supp. 269, 311 (D.N.H.1977). Traditionally, a plaintiff must show not only that the defendant was callously indifferent to his medical needs, but that those needs were serious, and that the failure to treat them resulted in personal injury.

Hampton v. Holmesburg Prison Officials,

546 F.2d 1077, 1081 (3d Cir. 1976).

Here plaintiff Hurt alleges only that he was denied his medication on one occasion and that he had difficulty obtaining it on other occasions. Giving the plaintiff all favorable inferences this one denial may constitute deliberate indifference but the evidence of this situation fails to support the requisite gravity. It is not every injury or illness that invokes the constitutional protection, only those that are serious and have that effect.

Hampton, supra,

at 1081 . Due to this failure of proof on the second prong of the test, this claim must be denied.

Plaintiff Hurt next alleges that on one occasion he appeared by the C.A.B. and asked for witnesses and a lay advocate. He was told he could have them and the case was continued. However, before the next hearing date on this matter, plaintiff Hurt received a six month disciplinary action in

*455

the mail. This was prior to Hurt’s opportunity to appear with assistance and present evidence. Inmate Brooks, on Hurt’s request, appealed this to an Indiana State Court which resulted in the C.A.B. dismissing the charge altogether.

Plaintiff has not alleged that any of the defendants were involved in this incident or when it occurred. Nor has any damage been alleged. In fact, by Hurt’s own admission the alleged wrong has already been remedied by a state tribunal. Therefore, this claim is without merit and is accordingly denied.

Plaintiff Hurt next complains that in August 1979 he received one item of legal mail which had been opened outside of his presence. Further evidence indicated that mail is delivered five days a week and is delivered to inmates by 2:30 o’clock P.M., except for heavy days when first class mail is given priority. No mail is censored and only non-legal mail is opened to inspect for contraband. Non-legal mail is opened by the clerk outside of the presence of the inmate. If legal mail is suspected of having contraband in it, it is opened in the presence of the inmate. Legal mail is from time to time opened by accident due to the volume of the mail or the failure of the sender to clearly mark it as legal mail. On those occasions the legal mail is usually hand delivered to the inmate and he is told it was opened by mistake. The testimony of plaintiff Walker bears this out.

The Supreme Court of the United States first addressed the issue of censorship and regulation of inmate mail in

Procunier v. Martinez,

416 U.S. 396 , 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974). In

Procunier, supra,

the court found that prison mail regulations providing for censorship were properly invalidated by the district court since they authorized prison officials and employees to apply their own personal prejudices and opinions as standards. Then in

Wolff

v.

McDonnell, supra,

the court held that mail between an attorney and a client, who was an inmate, was protected by the Sixth Amendment and could not be read by the prison officials. Further, if such legal mail is suspected of containing contraband that mail must be opened in the presence of the inmate. 418 U.S. at 577 , 94 S.Ct. at 2985. The court also stated that “by acceding to a rule whereby the inmate is present when mail from attorneys is inspected [the petitioners] have done all, and perhaps even more, than the Constitution requires.” •

Id.

The mail regulations as developed here fully comply with these standards. What the plaintiff contends and the defendants concede is that through inadvertence or negligence legal mail is opened on occasion. However, the official in charge of the mail delivery, in that situation, takes the added precaution of individual delivery and explanation to the inmate to assure the confidentiality of the mail in question. This is a salutary practice which insures confidentiality and avoids misunderstanding. At worst, Hurt’s claim of receiving opened legal mail indicates negligence on the part of prison officials or employees. There is no evidence in the entire case to indicate a pattern or practice of opening or interfering with the delivery of legal mail. Therefore, this claim does not rise to a constitutional level and it is accordingly denied.

Plaintiff Hurt next alleges that he was sitting quietly in his cell on I.D.U. writing a letter when Officer Konkey sprayed mace in his face. The prisoners on the cell block were creating a disturbance at that time but Hurt contends he was not involved. Subsequently an inmate nurse on the unit came to Hurt’s cell and put something in his eyes, presumably to counteract the mace.

The testimony of Officer Konkey paints quite a different picture of the incident involving plaintiff Hurt. According to his testimony Hurt was upstairs in his cell yelling, screaming and disrupting the other inmates. Hurt was asked to be quiet several times and refused. Later the same day, while Officer Konkey was walking past Hurt’s cell, Hurt threw a glass jar through the bars which shattered and cut Konkey on the hand. Konkey continued to pass out medication and when finished came back to talk to Hurt. When Konkey returned to Hurt’s cell, Hurt threw another glass jar

*456

through the bars at which time Konkey used mace on Hurt. Konkey did not use any more mace on Hurt. That concluded the evidence in regard to this incident in 1976.

Next on May 3,1977 plaintiff Hurt alleges he was beaten three times. At approximately noon Hurt testified he was in the shower area when Officers Morris and Wysong destroyed his commissary items. When he asked the officers why they did this, Morris allegedly took out his handcuffs and ordered Hurt into his cell. Hurt contends he believed Morris was going to hit him, so he swung first and hit Wysong in the face. Then, according to Hurt, Morris and Wysong both took out their handcuffs and chased him to the end of the range. Hurt alleges he was caught, knocked down, and beaten with fists and handcuffs. After this scuffle he was again ordered to go into his cell, and this time complied.

Then approximately five minutes later, according to Hurt, Captain Koziatek, Bachelor, Lt. McKee and several other officers came to his cell and ordered him out, stating that they were taking him to lockup. Hurt’s hands were handcuffed behind his back, and he alleges that Captain Koziatek slammed him into the wall face first. Then when they got on the I.D.U. elevator Hurt alleges Captain Koziatek told him he would kill him if he hit one of his officers again and kicked his legs out from under him and hit him on the back of the head with handcuffs. Once at I.D.U. Hurt alleges Koziatek said he would kill him if he didn’t get his hair cut. Hurt responded that he wouldn’t get his hair cut because it was against his religion based upon his Cherokee Indian ancestry. Koziatek allegedly replied that he would get it cut and took Hurt to his cell and started hitting and punching him. Hurt then asked Captain Bachelor to go to the doctor because his chest and head hurt. Hurt was then escorted to the hospital by Officer Sharp, hands still cuffed behind his back, and received x-rays. Hurt was then taken back to I.D.U.

On his arrival at I.D.U. Hurt alleges there was a barber chair sitting there, an inmate barber, and five or six officers including Lt. McKee and Officer Sharp. An unidentified person allegedly told Hurt he was going to get a haircut. Hurt again refused. Officer McKee then allegedly grabbed Hurt’s arm and Hurt kicked Officers Sharp and McKee. .Then according to Hurt, three or four people grabbed him and slammed him into the chair. All this time Hurt alleges there were officers twisting his legs and arms and beating him so that he passed out. Hurt’s hair was cut. After-wards, Hurt alleges he was taken to his cell, thrown on the floor on his face and was beaten on his back and kidneys while the officers supposedly removed the handcuffs from him. After the handcuffs were removed, Hurt was left in his cell. Hurt contends he could hardly walk for the next two or three days. Individuals allegedly involved in the barber chair incident include Koziatek, Glick, Swiger, Sharp and McKee, and two other officers Hurt did not know. This testimony was elicited at the deposition by defense counsel.

Captain Koziatek, a principal actor in this scenario, testified in person at the trial of this cause. It was his testimony that Hurt’s hair was below the shoulders in length which was in violation of the Department of Correction’s policy. The written policy at that time was that the hair not hang lower than the top of or touch around the collar. Wearing the hair up in braids or other fashion was acceptable so long as it was sanitary. Hurt’s hair was in an unsanitary condition, matted, tangled, and unwashed. Koziatek also testified that he had never kicked the legs out from under any inmate in the elevator going up to I.D.U. Finally, Koziatek testified that he had not assaulted Hurt or ever threatened to kill him, or threaten him in any way. Officer Sharp also testified that he was present at the time Hurt received his haircut and that Hurt had to be physically held in the chair. Sharp remembered Hurt kicking one of the officers present but had no memory of Hurt being hit or punched in any way. Officer Swiger was also present at the haircut, and testified essentially that Hurt was unwilling to have his hair cut, had to be physically

*457

restrained, but did not see Hurt hit anybody, or anyone hit Hurt.

Plaintiff Hurt, by counsel, has stated this is not a challenge to this hair length regulation, rather it is a challenge to the procedure used in the involuntary cutting of Hurt’s hair. Plaintiff Hurt contends that the amount of force used was so excessive as to be actionable under

Johnson

v.

Glick, supra.

This is a situation where an inmate insisted on having hair which was maintained so as to violate the prison regulations. The record shows that Hurt was asked and cautioned to have his hair cut, and written up several times because the fashion in which he maintained it violated prison regulations. Unfortunately for all concerned plaintiff Hurt refused to comply. Plaintiff Hurt did not testify in person at this trial. Officers Konkey, Koziatek, Sharp and Swiger did testify in person about these incidents and their demeanor and bearing causes this Court to credit their testimony.

In

Lock v. Jenkins, supra,

the Seventh Circuit Court of Appeals adopted the position that “only in rare circumstances would it be appropriate for tear gas to be used to control inmates already confined in their cells.”

Id.,

at 496 . The amount of gas used was reasonable and it was needed under the circumstances to restore order. Under

Johnson v. Glick, supra,

standards, as previously enunciated in regard to plaintiff Walker, Officer Konkey’s use of mace on Hurt was a reasonable application of force used in a good faith effort to restore discipline. There is no showing that this was excessive or severe in the Eighth Amendment sense. The Court must conclude that this was one of the rare instances when the use of gas against a person locked in a cell was justified.

In regard to the series of events which culminated in plaintiff Hurt receiving a haircut, the Court notes that neither Officer Morris or Wysong, who allegedly beat Hurt severely, are named as defendants in this case. Therefore, their conduct becomes extraneous because there is no allegation or evidence that any named defendant should have known of, knew of, or directed their conduct. The absence of these alleged principal actors as defendants casts doubt on the veracity of plaintiff Hurt’s story. Officer Koziatek is a named defendant and is accused by Hurt of numerous acts of brutality. However, witnesses at the scene do not recall this alleged abuse by Koziatek, and the officer denies it ever occurred. Also, plaintiff Hurt failed to answer the question as to whether he suffered any cuts or abrasions from these alleged beatings with metal handcuffs. There is an obvious lack of documentation of any injuries which would be concurrent with the alleged severity of these assaults. Therefore, this Court must accept Captain Koziatek’s version of these events. While other assaults are alleged no individuals are named as the perpetrators. These claims suffer from a failure to prove a defendant’s direct personal responsibility and are therefore without merit. See

Stringer, supra; Adams v. Pate, supra.

In regard to the actual giving of the haircut, the allegations of excessive force by unidentified officers are without proof, and must fail for that reason. The Court is sure this was an unpleasant incident for all involved. However, the force used throughout this incident was not so excessive or severe so as to shock the conscience in violation of the Eighth Amendment.

Stringer, supra.

In light of all the foregoing, the Court must find that none of plaintiff Hurt’s claims rise to the level of a constitutional violation. They are, therefore, dismissed.

E.

Richard Colvin

Plaintiff Colvin has been incarcerated at the I.S.P. from December 1974 to the present time except for the period of September 1979 to November 1980, during which time he was at another institution within the Department of Correction. Colvin lived in C Cellhouse from December 1974 through September 1979, and has lived in D Cellhouse since his return to I.S.P. on November 4, 1980. There are two principal

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issues raised by plaintiff Colvin, the first being a medical complaint and the second a dietary complaint.

Plaintiff Colvin first contends that he has a back problem which requires a backboard. While at the I.S.P. the plaintiff contends that he has had a backboard approximately four and one-half years. Plaintiff also had a backboard while he was located at the Westville Correctional Center. He further alleges that his backboard was prescribed by a physician and that since his return to the I.S.P. he has been denied the use of a backboard. Colvin further testified that he was told by Dr. Mai, a prison physician that a backboard was not necessary. The Medical Services Audit Review Committee also considered this request for a backboard and decided that it was unnecessary.

Under

Estelle v. Gamble, supra,

as previously discussed in regard to plaintiff Hurt, a plaintiff must show deliberate indifference to a serious medical need. The evidence here fails on both points. Dr. Mai and the Medical Services Audit Review Committee considered this request for a backboard and found it unnecessary. Nor is there any showing of the requisite gravity. Rather, this is a disagreement between the patient and the doctor over the course of treatment. Here the doctor simply did not feel a backboard was necessary. Such disagreement does not rise to a constitutional level. Therefore, this claim is accordingly dismissed.

Plaintiff Colvin’s second complaint is that he has difficulty obtaining a pork-free diet. Colvin is of the Moslem faith which prohibits the eating of pork. The dietician who testified on behalf of the plaintiff found that pork or pork products were used generally about three times a week. It was her conclusion that those persons not eating pork would not be getting any proteins at their mealtimes. The Food Service Director of the Department of Correction, Mr. Prill, testified that he makes 12 or 13 trips a year to the I.S.P. to examine the food services. Master menus are prepared by his office and the nutritional values calculated for them. Then, if a substitution occurs on any particular menu at any institution that as served menu is sent to Prill’s office to determine the nutritional values.

Prill also testified that he was aware Moslems could not eat pork and that it was his opinion that Moslems still received adequate nutrition from the foods served. According to the National Research Council on dietary allowances a male person need only receive 56 grams of protein per day. According to Prill, the average diet at the I.S.P. contained 100 grams of protein per day, subtracting the 41 to 45 grams in the average pork serving left 55 grams of protein in that day’s diet. Pork is only served three times a week and on those days the inmates are allowed to receive extra portions of vegetables.

In order to establish an Eighth Amendment violation, plaintiffs must show either that the actions of the defendant intentionally inflicted excessive or grossly severe punishment upon them or conditions so harsh as to shock the conscience were maintained.

LaBatt v. Twomey,

513 F.2d 641 (7th Cir. 1975). There can be no doubt that the Constitution requires that diet be adequate to maintain the health of the inmates.

Campbell v. Cauthron,

623 F.2d 503, 508 (8th Cir. 1980). However, this is not a case such as

Holt v. Sarver,

300 F.Supp. 825, 832 (E.D.Ark.1969), where the prisoners were receiving fewer that 1000 calories a day and their meals consisted primarily of 4-inch squares of “grue”. Rather, this is a situation where reasonable accommodations have been made to insure that those inmates of the Moslem faith receive adequate nutrition without eating pork. The evidence shows that without eating the pork on those occasions when it is served an inmate still receives the recommended minimum allowance of protein for the day and is allowed to have additional helpings of another item. This complaint in regard to the dietary practice does not rise to a constitutional level and is therefore dismissed.

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F.

Stewart Brooks

Plaintiff Brooks was incarcerated at the I.S.P. from September 24, 1975 to February 28, 1979. On July 27, 1977, Brooks injured his hand in an altercation with another prisoner. The medical treatment he received is the basis of one of his complaints. Brooks’ second complaint arises out of the procedures employed by the Conduct Adjustment Board in regard to the selection of lay advocates.

On July 27, 1977 when Brooks injured his hand he was taken to the prison hospital. At the hospital an x-ray was taken of the injured hand and a prisoner taped four tongue depressors on the hand. Brooks was then set back to his cell with Tylenol capsules for pain. The next day the hand was swollen and painful so Brooks was returned to the prison hospital. Brooks saw the same prisoner again, an inmate named Archie Burr, who put a cast on the hand without any supervision. Burr testified he was instructed to put a cast on Brooks’ hand by the written order of physician’s assistant Kasprzak. Kasprzak is not named herein as a defendant. Burr further testified that though this was the first time he had ever put a cast on, it was a common practice for prisoner nurses to apply casts to other inmates. Brooks complains that the bones were improperly aligned by this cast which caused the little finger of his hand to heal sticking out to the side. Approximately six months after the injury occurred Brooks was taken to see a bone specialist who told him the hand had healed improperly and would require surgery to be reset. Since leaving the prison Brooks has not sought further treatment of his hand. The plaintiff’s witness Dr. Shansky, testified that under no circumstances would it be appropriate for an untrained prisoner to set a fracture by placing a cast.

This Court is acutely sympathetic to the apparent medical mistreatment suffered by plaintiff Brooks. It would appear to state a claim under

Estelle v. Gamble, supra.

However, Brooks fails to allege that any defendant was involved with, or had knowledge of this course of treatment ordered by physician’s assistant Kasprzak. There is no evidence to implicate Hospital Administrator Freake or Warden Duckworth or any other named defendant. Plaintiff Brooks has failed to prove any defendant’s direct personal responsibility for the claimed deprivation as required by

Adams v. Pate, supra.

Therefore, this claim must be and is dismissed.

Plaintiff Brooks second allegation is in regard to a January 1978 appearance before the C.A.B. Brooks was given a list of four prisoners’ names from which to select a lay advocate to represent him. Brooks informed the screening officer Richard Day, that he did not want any of those four, that there was an inmate in population whom he wanted to represent him. The prison rule at that time was that anyone in population was eligible to serve as a lay advocate. Day indicated on the report that Brooks did not want a lay advocate since he had refused the four offered. Brooks appeared at the hearing without representation and the C.A.B. chairman inquired about this. Brooks explained the prior events and Day denied that it happened. After the hearing Brooks attempted to discuss the matter with Day. Day ordered Brooks to be quiet and wrote him up for refusing a direct order for which Brooks got 60 days in lockup.

The procedure of providing a list of inmates versed in the procedures of the C.A.B. is one which finds its origin in

Wolff v. McDonnell, supra.

The Supreme Court stated in

Wolff

that an inmate “should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.”

Id.

at 570 , 94 S.Ct. at 2982. The C.A.B. fully complied with this procedure by supplying a list of inmate lay assistants designated by the staff. This provided Brooks the requisite opportunity to secure assistance which he chose to forgo. However, the C.A.B. having heard Brooks’ explanation allowed him to submit written evidence on the merits of his claim after the hearing. This procedure

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followed by the C.A.B. did not violate plaintiff Brooks’ due process rights. It was the conduct of Officer Day that interfered with Brooks’ access to a lay assistant. However, Officer Day is not a defendant in this case so this claim suffers from the now familiar infirmity under

Adams v. Pate, supra,

at 108, of failure to establish a defendant’s direct personal responsibility for the claimed deprivation. Therefore, this claim must be dismissed.

G.

Billie R. Adams

Plaintiff Adams, the sole plaintiff in S 77-35, has been an inmate at the I.S.P. since October 1972 to the present. From April 1975 to July 1978 Adams was subjected to a series of lockups on segregation. It is these lockups he complains of and some lost personal property and a C.A.B. procedure regarding the calling of witnesses.

Property belonging to Plaintiff Adams and registered with the I.S.P. was seized during a shakedown on January 28, 1977. The property seized included a television, a guitar, leather tools and supplies, stereo headphone, three pair of shoes, smoking pipes, a hot pot, and jewelry. This property was never returned. The property was allegedly seized by ten unnamed officers.

Next in September 1979, plaintiff Adams contends that two purses, and five or six billfolds belonging to him were confiscated by prison officials from the car of Dr. Higgins, the I.S.P. dentist. Adams had been given permission by Assistant Warden Cohen to have Dr. Higgins take the leather goods to a church display and sell them. These items were confiscated when Dr. Higgins’ car was searched in connection with a suspicion that it was bringing contraband into the institution. Plaintiff Adams sought the return of his leather goods for over a year at which time Assistant Warden Cohen ordered their return. One purse was returned to Adams but he was informed by Investigator Penefold that the rest of it had come up missing.

The Court incorporates here by reference the prior lost property analysis made in regard to plaintiff Lateef. The Supreme Court in

Parratt v. Taylor, supra,

stated the inquiry must focus on two elements of a § 1983 action: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. Here, these claims are deficient in both respects. First, no individual is ever named as responsible for the seizure of any of this property. No defendant is even implicated in the actual taking which resulted in the loss. Second, the State of Indiana provides an adequate state remedy, the Indiana Tort Claims Act, I.C. 34 — 4-16.5-1 et seq., for property lost by a state officer. The availability of this remedy avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment. However, this Court notes with chagrin the regularity of such lost property claims and hopes the prison administration would address the situation. In light of the foregoing, this claim does not rise to a constitutional level and is dismissed.

When plaintiff Adams was locked up on January 28,1977 he was charged with possession of 14 marijuana cigarettes and $90.00 of United States currency which was found in a common area of his dormitory housing about 60 men. The locker in which the contraband was found was shared by Adams with two other inmates for the storage of property. Those two inmates did not receive conduct reports.

At the hearing before the C.A.B. on this charge Adams requested the testimony of four inmate witnesses, Olsterhouse, Ware, Smith and Fetters. Ware and Olsterhouse were the two who shared this area with Adams and they testified at the hearing. Olsterhouse testified that ten different inmates used the cabinet where the contraband was found for the storage of leather goods and that the cabinet did not have a lock on it. The C.A.B. refused to hear

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testimony from inmates Smith and Fetters. Plaintiff Adams contends Smith and Fetters would have testified that they and others frequently used the cabinet and that area. Adams also requested that the officer who wrote the conduct report testify at the hearing. The C.A.B. refused to call Officer Keith to testify. This hearing before the C.A.B. was concluded on February 3,1977. Adams was found guilty of possession of contraband and sentenced to six months on I.D.U. disciplinary lockup. He served five months and 22 days of that sentence.

The Court refers to, and incorporates by reference here, the prior analysis of an inmate’s right to call witnesses under

Wolff v. McDonnell, supra,

and its progeny, as discussed in regard to plaintiff Wellman. The testimony of inmates Smith and Fettersj according to what plaintiff Adams contends they would have said, would have been cumulative on the point that this area and cabinet were used by a number of inmates. That fact was established by the testimony of inmate Olsterhouse. The denial of the request to call the officer who wrote the conduct report was premised on a policy of not calling the officers to testify at the hearings. The basis of this policy being to avoid an additional confrontation between the staff member and the person that is being reported. The rationale of the C.A.B. in denying the requests for these witnesses is drawn directly from

Wolff, supra,

at 565-566 , 94 S.Ct. at 2979. The testimony of the two other inmates would have been repetitive and the calling of the officer would have created an unnecessary confrontation. This procedure did not violate plaintiff Adams’ limited procedural due process right to call witnesses. Therefore, this claim is dismissed.

Plaintiff Adams finally contends that he was subjected to a series of lockups which failed to conform to procedural due process requirements.

In April 1975 plaintiff Adams was confined to I.D.U., a lockup unit at the I.S.P., for a period of 11 days for “investigation.” When plaintiff Adams was locked up in I.D.U. in April 1975, he was not told the reason he was being locked up, he was not given a conduct report and he was not given a hearing in connection with the lockup.

From August 1, 1975 until August 11, 1975, Adams was confined to I.D.U. lockup unit for “investigation.” He was not given any reason for his confinement to I.D.U. on August 1, 1975, nor was he given a hearing of any kind in connection with the lockup and he was never told why he was released.

Adams was again confined to I.D.U. from August 22, 1975 to August 27, 1975 for “investigation.” In connection with the lockup on August 22, 1975, no disciplinary charges were filed against Adams, and he did not at any time receive a hearing connected with the confinement.

Adams was again confined to I.D.U. for investigation on October 15, 1975 and was confined at the N.S.B. disciplinary lockup unit 'until October 31, 1975. When Adams was locked up on October 15, 1975, he was told only that it was for “investigation,” and was given no other reason for the lockup.

About ten days after being locked up, Adams was given a conduct report charging him with possession of marijuana because two seeds and some flakes of marijuana were found in an envelope belonging to Adams in the electric shop where he was employed. At a hearing before the C.A.B. in connection with the charge of possession of marijuana, the charge was dismissed. Adams then submitted to the chairman of the C.A.B. a request that the charge of possession of marijuana which had been dismissed be expunged from his packet. Sgt. Kozlowski advised Adams that the dismissed charge would not be removed from his packet and some time later, Adams’ counselor told him that it was still there. At the time Adams testified in the trial of this action on January 6,1981, the charge of possession of marijuana which had been dismissed by the C.A.B. in October of 1975 still appeared in his packet. On February 4, 1981, Warden Duckworth removed from the packet of Adams the conduct report

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charging him with possession of marijuana which had been dismissed by the C.A.B. in October 1975.

Adams was again locked up on I.D.U. on April 8, 1976 and was confined on I.D.U. until June 6, 1976. Adams was told only that he was being held for investigation and was not given any other reason for his confinement until he was given a conduct report about three weeks after he had been locked up on I.D.U. on April 8, 1976. The conduct report charged Adams with violation of institutional rules because a package mailed to him from Tandy Leather Co. in Florida contained marijuana. Following the filing of the conduct report, Adams was given a hearing on the charges and they were dismissed.

Adams was again locked up on January 28, 1977 pursuant to a conduct report. The lockup on January 28,1977 was the seventh time Adams had been locked up in a disciplinary isolation unit in a period of 21 months but this was the first occasion on which he had received a conduct report prior to the time he was locked up. Prior to the lockup on January 28, 1977 Adams had never been found by the C.A.B. to have violated the rules of the institution. Here Adams received a hearing before the C.A.B. on the charge of possession of contraband and was sentenced to six months on I.D.U. disciplinary lockup.

Adams was again locked up for investigation on June 29, 1978, for a period of 13 days in B Seclusion. At the time he was locked up Adams was not served with a conduct report and was told that he was being locked up for investigation. During the Jime he was locked up Adams was served with a conduct report charging him with possession of narcotic paraphernalia, specifically an alligator clip. The alligator clip was found in a box of junk in Adams’ cell by officers who were cleaning out his cell following Adams’ lockup for investigation on June 29, 1978. The possession of the alligator clip was not discovered until after Adams was locked up. At no time did Adams receive a hearing in connection with the lockup of June 19,1978, and the conduct report was ultimately dismissed.

In only one of these instances were disciplinary charges filed against plaintiff Adams. On every other occasion Adams was locked up for investigation he was not given any reason for his confinement, he was not given any kind of hearing in connection with the lockup, nor was he told why he was being released. Each of these six incidents set forth a violation of

Wolff v. McDonnell, supra.

Specifically, plaintiff Adams was not given any reason for his lockup or a hearing. Adams seeks damages for this confinement without the benefit of due process.

However, as disturbing as it is to the Court, plaintiff Adams has failed to name or even implicate one of the defendants as being responsible for these deprivations. Adams testimony reveals a series of lockups but never names an actor as responsible. Rather, Adams contends only that this was a pattern of harassment perpetrated upon him by the defendants and institution.

The defendants contend only that no inmate has been locked up on a general charge of investigation since mid-1980. This would coincide with the decision of the Seventh Circuit Court of Appeals in

Sargeant

v.

Jenkins,

631 F.2d 734 , an unpublished order which this Court took judicial notice of during this trial. In

Sargeant ,

this Court granted summary judgment for the defendants at the district court level. The Seventh Circuit then held that segregation due to “investigation” provided insufficient notice of the reason why the inmate was being locked up. The Court of Appeals went on to note that the prison rules provided the precise safeguards that were missing from the actual practice. The Seventh Circuit declined, however, to order a mandatory injunction requiring the defendants to follow their procedure but did put them on notice that their practice was unconstitutional. Further, the Court held that the defendants were immune from personal liability under

Procunier v. Navarette, supra.

These incidents here all occurred prior to this Seventh Circuit ruling. The

Sargeant

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opinion expressly intended to put an end to the complained of practice prospectively. It was not intended to be retroactive. The defendants contend that their current practice comports with the guidance of

Sargeant

and the plaintiffs do not contest that. This failure by some unnamed persons to give plaintiff Adams sufficient notice of the reason for his segregation occurred within the time frame of the

Sargeant

case and has been remedied by that decision. In regard to the remaining allegations of due process violations those claims must fail due to a failure to prove that any defendant was personally responsible for the claimed deprivation of a constitutional right.

Stringer, supra,

at 1000-1001 ;

Adams v. Pate, supra,

at 107. Therefore, this claim is dismissed.

The individual claims of the following plaintiffs all relate to the delivery of medical services: James Odis Hendrix; Mellon Carroll; Grady Thomas Bobbitt; and James Edwin Blackburn. These claims will be considered in conjunction with the analysis of the prison medical services.

The individual claim of plaintiff Donald Ray Sciefers goes to the condition of the cells in which he has been housed. This evidence will be considered in conjunction with the analysis of the prison physical plant.

III.

The Prison:- An Overview

The I.S.P. is a maximum security penitentiary for male felons over the age of thirty. The original legislative authority for its construction was passed in 1859. The prison is enclosed by a forty foot wall which encompasses twenty-four acres of land. Enclosed are the housing units, industrial shops, prisoners’ dining facilities, infirmary, chapel, and other related facilities including a six acre recreation area. The inmate population at the time of trial was approximately 1900, by the time of oral argument it was approaching 2000.

Inmates in the general population are housed in A, B, C, and D and I Cell Houses. Newly arrived inmates are housed in the Admission and Orientation Unit (A & O). Inmates in disciplinary segregation are housed in the New Service Building (N.S. B.), B Cell House Seclusion, D Cell House Detention Unit, I Cell House Detention Unit (I.D.U.), and in (A & O). Inmates in protective custody are housed in A & O and in a ward in the infirmary. Inmates on administrative segregation are housed in N.S.B. Inmates on self-lockup are housed in I.D.U. and A & O. The individual plaintiffs in this action have been housed at different times in the various cell houses as well as the detention units. Additionally, all members of the class are all housed in units of the prison.

Cells in A, B, C, and D Cell Houses are 40 to 48 square feet in size. Cells in I Cell House are 56 square feet in size. Cells in A & O are 38 square feet in size. Inmates housed at A & 0 are confined there 23 and one-half hours per day. Inmates confined to N.S.B. lockup unit, the I.D.U. lockup unit and B Cell House Seclusion are in their cells 23 and one-half hours a day. Inmates on administrative segregation are in their cells 22 hours a day.

IV.

The Experts

Mr. Joseph G. Cannon.

Mr. Cannon called as plaintiffs’ first expert witness is presently employed as a Professor at the University of Missouri-St. Louis. He received his B.S. degree in Social Administration with specialization in corrections from Ohio State University in 1950 and his Master of Social Work degree with specialization in Correctional Administration from the same university in 1956.

Mr. Cannon has worked in the Illinois Department of Correction, the Minnesota Department of Correction, and the Maryland Department of Correction. It must be noted that he was in charge of Adult Correctional Institutions for the State of Minnesota and left that position to become the Warden of the Illinois State Penitentiary. His experience in corrections is extensive.

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Mr. Cannon toured the facilities of the Indiana State Prison on March 21, 1980. During the tour, he interviewed inmates, staff and administrators of I.S.P. He has testified as an expert witness in prison conditions cases in United States District Courts in the districts of West Virginia, Rhode Island, Wisconsin, and Massachusetts over the past ten years.

The following are his opinions and observations regarding the conditions of confinement at I.S.P.:

General references have already been made relative to the extreme conditions of the physical plant. The interest here is to focus on specific conditions that deserve special mention.

The lack of hot water in the cell houses is unconscionable and unjust treatment of the prisoners, in his opinion. The word is out among the population that in some cell houses hot water taps may be secured for a price. This situation can only ferment trouble.

Another aspect of the physical plant that needs attention is the dried food that he found on the front of several cells in Cell House I, detention unit. It appeared that food had been splashed on the cell fronts when meals were served to men in their cells. While it is understandable that this might occur during the serving of trays and that some of the spillage may be caused by the prisoners, it is the responsibility of the administration to see that the housing units are maintained.

The kitchen and dining room were visited for two meals and an observation of procedures. Supervision was lacking. The staff that were present in the kitchen tended to stand around and talk to each other. Cannon observed a serving line and noticed that some prisoners were receiving two and three pork chops while others received one or none, even though requests were made for additional servings. Calling the matter to the attention of one of the staff in the kitchen Cannon was informed that it didn’t happen. During his two visits to the kitchen and dining rooms the serving lines were not being properly supervised.

In the kitchen, large containers of food were uncovered and sitting under broken windows where something could fall into them.

Cannon found the educational program understaffed, undersupervised and under-attended among other apparent areas of difficulty. Cannon visited the school on two occasions.

In an academic classroom area designed to accommodate at least 100 students, Cannon found 18 men involved in classroom activities the first day and 22 the second day. He also found small groups of completely unsupervised prisoners in small secluded offices that had the windows covered or painted over in order to avoid proper supervision by an officer or teacher. The academic area of the school and especially those secluded offices were not being properly supervised and thus were potentially dangerous areas for most prisoners. One reason the school fails to attract more students is this lack of supervision.

In a population of 1600 there will be 500 functional illiterates. When Cannon inquired regarding the number of classes that were available to deal with this problem, he was told that there were two classes and that they met only in tha.mornings. A high percentage (80 to 90%) of the illiterate population have the potential and capacity to achieve educationally at the high school and college level, if given the opportunity. The men in this prison are not being given the opportunity and are forced to live in an atmosphere that discourages such potential. This contributes to the propensity toward future criminal behavior.

The recreation program with its 5 P.M. to 9 P.M. nightly, year round, yard activity is very commendable. Cannon stated this was the first prison that he had worked in or visited that has had this degree of yard availability. Cannon visited the yard area and field house during his first visit and again found supervision to be inadequate. It was a rainy evening and even with the rain some men were in the open yard area while most were in the field house. Cannon

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circulated through the field house among some two to three hundred men. He only found three officers and this is an inadequate number in such a situation.

During a tour of the industrial shops, Cannon was impressed with the potential for on-the-job training, especially in the machine shop and to a lesser degree the auto tag shop.

During Cannon’s two visits to the shops, he found much idleness and little productive activity. Again he was impressed with the potential for meaningful production and training but at the same time frustrated with the lack of interest and concern for this potential on behalf of those responsible.

This concluded the testimony of Dr. Cannon.

Dr. Herbert T. Wood.

Dr. Wood, called as plaintiffs’ expert witness, presently serves as Chief of the Bureau of Occupational and Institutional Hygiene for the District of Columbia Government. He has a Bachelor’s Degree in Chemical Engineering, magna cum laude, Catholic University of America, 1961, and his Doctorate in Physical Chemistry from the University of Wisconsin in 1965.

Dr. Wood has been a consultant for the United States Department of Justice inspecting the vocational industrial areas of state reformatories for occupational safety and health hazards since 1978. His further consultations and publications in this area are too numerous to mention. Suffice it to say that he is eminently qualified to give his opinion.

The following are his opinions and observations:

At each working area an interview was conducted with someone (usually the foreman) to ascertain the number of inmates working the area, the processes involved in accomplishing the tasks assigned to this area, the tools and equipment in use, and the period of time the inmates were in the area. The equipment was inspected and, if necessary, ventilation and/or noise measurements taken during the operation. In the event that glues, solvents, lacquers, paints, etc., were being used, the types and usage rates were also ascertained.

The occupational environment in each area was examined and compared with the requirements of the Occupational Safety and Health Standards ( 29 CFR § 1910 ).

In the Tailor Shop cloth in bolts is cut (using templates for patterns) and then sewn into clothing for use in state institutions. The sewing is done on industrial sewing machines. Most of these machines had unguarded belts (1910.219) in which the operator could catch his fingers. The electric wiring was in disrepair with junction boxes uncovered, wire nuts exposed, etc., (1910.308). This could easily cause sparks which could lead to a serious fire or an electric shock to the workers.

All of the laundry in the institution, exclusive of the hospital linen and officers’ uniforms, is done in the laundry shop. The clothes are sorted, washed, extracted, dried, and folded in this building. The operation is well designed and organized. One fan, however, had unguarded blades which could injure someone who happened to be struck (1910.219).

The workers in the Auto and Motorcycle Tag Shop are presently working a ten hour shift preparing for the new licensing year. The metal for the tags is taken off a large reel, washed, rinsed, laminated and cut to the correct size. The cutter produced a noise level of 89-92dB(A). For a normal six hour shift these noise levels would not be a problem. However, for a ten hour shift ear plugs or muffs are necessary (1910.95) . The plates are then pressed in a rimming machine which puts a groove completely around the plate. This machine produced a noise level of 98dB(A). Exposure to this noise level should not be allowed more than three hours (1910.95) unless ear muffs or plugs are used. The plates are then embossed with the numbers. Four machines are used for this purpose. Two of them, embosser numbers 1 and 2 produced noise levels (92dB(A)) which would necessitate the use of ear plugs or muffs if the work continued for more than six hours (1910.95) . Also, it was observed that all of

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the embossing machines had been rewired and the new wires (and wire nuts) were outside of the conduit (1910.308). This is extremely hazardous since the operator’s hands are very close to the wires and, in addition, extremely flammable solvents are used in the dip tanks nearby. A spark would create a fire hazard.

The tags are dipped in a special coating material to provide extra life to the tags. This material, a 3 M product with the trade name Reflecto-Lite, is contained in an enclosed dip tank through which the plates are carried on racks. The solvents used for this material are extremely toxic and flammable but the ventilation system contained within the dip tank enclosure was removing the vapors adequately.

Also in this area small dog tags are made using a machine to stamp out the metal tags and a second machine to punch the numbers on the tag. The noise levels produced by these operations were such that no hazard exists.

Metal lockers are made starting with sheet metal and going through the processes of shearing, bending, spot welding, grinding, and painting. There was no noise hazard. The metal shearer was foot operated and there were signs warning the operator to keep his hands free.

The painting was done in the open in front of a spray paint booth. The reason given for not using the booth was that the wheeled truck used to carry the lockers would not fit into the booth (the lockers themselves do). The ventilation of the booth was adequate and the painter used a spray mask. While this mask removes the pigment of the paint from the air it does not remove the toxic solvents and is thus inadequate for this job, particularly since the vapors are not being removed from the air (1910.1000), (1910.133). Dr. Wood believed a correct respirator and a truck small enough to enter the booth should be purchased.

The Solvent Room contains the paints and flammable and toxic solvents used in the tag shop operations. In addition, it contains a covered strip tank for the racks used to dip the auto tags. The room had three deficiencies: First, the light switch was inside (1910.309). If there was a buildup of vapors in the room and the switch arced while the light was turned on an explosion would result; Second, the room was sloppy and could be the cause of a tripping injury (1910.141). Finally, because of the large amount of liquid present a door sill is needed (1910.106).

In the Sign Shop, which is located above the tag shop, road signs are made using the silk screen process. Unopened cans of paint and thinner are kept in a caged area in the shop and opened cans in a metal cabinet in the room. This cabinet, however, does not meet OSHA requirements for fire safety (1910.309) and a correct cabinet should be used.

The silk screens are cleaned on a vertical board on a trough. Naphtha is used as the cleaning agent and sprayed on the screens mounted in the trough. The spent naphtha collects in the troughs and flows into a storage tank and then is pumped to the spray gun and is used again. Naphtha is a very flammable (1910.106) and toxic (1910.-1000) liquid. There is no local ventilation to prevent the vapors of the naphtha from entering the room. The operator of the cleaning unit wears the same mask as is used on the first floor and thus is unprotected from the vapors of the naphtha. A local ventilation system should be installed and the proper organic cartridge respirator used.

The floor of this shop is in an extreme state of disrepair. Metal plates, some overlapping, cover portions of the floor. In some cases the plates are loose and are tripping hazards (1910.141). They should be repaired.

The Machine Shop is primarily a support facility for the tag shop. The male and female parts of dies are made as well as working parts of the machine. A good number of the lathes and drills do not have guards on the power belts (1910.219). Some welding is done in the shop but no local ventilation is provided (1910.252).

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The Soap Factory is a large two story building where bulk soap is manufactured in large kettles, powered soap (and detergents) are blended, and other housekeeping products (waxes, strippers, etc.) are produced and packaged. The area was quite clean considering the type of operation being carried out.

The same respirator that is used in the painting areas is used in the dusty areas of this operation. This mask is not designed for this type of operation and the proper respirator should be used (1910.133).

The hood over the blending pit had adequate draw for this type of operation when used in conjunction with a respirator for the operator.

In the dry cleaning operation clothing is dry cleaned using perchloroethylene as the cleaning fluid. Approximately three gallons of this material is used per week. The perchloroethylene is stored in a 55-gallon drum in the room and transferred to the washer by an open bucket. This is an incorrect procedure because of the toxicity of perchloroethylene (1910.1000) and its ability to injure the skin if it comes in contact with it. Special containers for the transfer of toxic materials of this type are available commercially.

The wiring in this area is in disrepair and one junction box did not have a cover (1910.308). Also, two sewing machines did not have guards on the power belts (1910.-219).

The Power Plant is an extremely clean and well kept up operation. In the shop in the basement the machine does not have a guard on the belt (1910.219).

The Store House handles the loading and unloading of dry goods. There were no violations in this well run operation.

The Industrial Warehouse building is in serious disrepair and its use for the storage of the amount of toxic (1910.1000) and flammable (1910.106) materials (naphtha, toluene, xylene, paints, etc.) is ill advised. The roof leaks making the floor slick increasing the chance of a spill of these materials with the resulting potential for poisoning and fire. The firefighting system in the building does not meet the standards for this type of storage (1910.159).

The Welding Shop has a number of booths along two walls and in a row in the middle of the shop. Approximately half of the booths had no curtains to prevent the welding arcs from being visible throughout the shop (1910.252). Although a local exhaust system was installed, it provided essentially no ventilation at the site of the welding (1910.252). Several of the exhaust ducts were not connected. This shop should not be used for welding until the curtains are installed and the local ventilation system is repaired.

In the Auto Body Shop the surfaces of cars are repaired. Dents are pounded out and tears are filled in with plastic filler, the surfaces sanded and then painted. The filler has a toxic solvent (the can was labelled “vapor harmful”) and the worker should use a respirator or be provided with local ventilation to eliminate the vapors (1910.-133). At present neither is provided.

A paint spray booth is provided in the shop but it does not have adequate ventilation (1910.107). Two types of respirators were available for the workers, one correct (an MSA cartridge type) and one incorrect (a sponge type). This latter mask should not be used since it stops the paint pigment but not the toxic solvents.

In the Electronics Shop there was one fan with unguarded blades (1910.219). The shop was quite clean and well ordered.

The Auto Service Shop, although somewhat messy, was in good shape. The tailpipe exhaust system had an adequate ventilation rate. There were some wiring irregularities (1910.308). One of the fire extinguishers was missing (1910.157).

The Maintenance Shops employ between 100 and 110 inmates, the Maintenance Shops serve mainly as places where the inmate workers receive their job assignments for maintenance projects throughout the institution. Some work, however, is done in the shops.

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The Steel Shop is basically a metal working shop. Some welding is done in the shop and no local ventilation is supplied (1910.-252).

The Carpentry Shop contains several table saws without guards (1910.219). In addition, none of them had local ventilation systems to prevent the sawdust from entering the air (1910.1000).

In the Sanitation Shop pesticides and insecticides are stored for use in the institution. Respirators are available for use of the inmate workers.

Maintenance also maintains an Air Conditioning Shop, an Electric Shop, a Supply Shop, and Plumbing Shop. There were no deficiencies in these shops.

In the Paint Shop one room is set aside as a spray booth with the fans set in the wall. This design is incorrect since the motors are in the path of the exhausted air and thus exposed to the flammable solvents (1910.-107). This area should not be used for spray painting until this deficiency is corrected.

This concluded the testimony of Dr. Wood.

Mr. John P. Conrad.

Mr. Conrad, called as plaintiffs’ third expert witness, presently serves as the Principal Program Officer, for the American Justice Institute. He received his B.A. in political science from the University of California and his A.M. in social service administration from the University of Chicago.

Mr. Conrad started in corrections as a parole officer with the California Youth Authority. He then moved to San Quentin Prison as senior sociologist for five years. He next worked for the California Department of Correction’s staff from where he moved to the United States Bureau of Prisons as Chief of Research. He has been engaged in research for the Law Enforcement Assistance Administration since 1969 and his selected list of publications is quite extensive. Mr. Conrad’s experience in corrections is extremely extensive. He stated preliminarily an opinion shared by this Court, that the staff was doing the best they could with meager resources.

Mr. Conrad toured the facilities of the Indiana State Prison on May 19 and 20, 1980. During the tour, he interviewed inmates, staff and administrators of the prison. The following are his opinions and observations regarding the conditions of confinement at the Indiana State Prison:

In regard to the staff Mr. Conrad made the following observations. New correctional officers earn about $11,000.00 per year, or about $917.00 a month. He would judge, from comments made to him by various members of the staff, that for a family man without a working wife, this salary must be insufficient. The significance of this situation is that correctional officers will be recruited from men and women whose basic qualifications as to intelligence and education will be minimal. Many will accept employment temporarily. Mr. Conrad was told that the turnover rate for correctional officers is about thirty per cent per year. It will be difficult to retain the best recruits, and the development of supervisory staff will depend on making the best of what is available from an unsatisfactory basic pool of employees. Under the circumstances, the staff training program assumes great importance. There is a one-week training course for new officers, and no program for supervisory personnel. I regard this aspect of the staff situation as most unsatisfactory and urgently in need of correction.

In regard to disciplinary procedures the present situation is unsatisfactory in structure and general policy. Under the provisions of the present regulations, rule infractions of a major nature are heard by a Conduct Adjustment Board consisting of a sergeant, a correctional officer and a treatment counselor. The qualifications and training of the personnel assigned to the Conduct Adjustment Boards do not appear to have been given serious attention in the past. Mr. Conrad was puzzled as to the low status of the personnel assigned to this crucial function. In most prisons that he has any familiarity with, assignments to these functions are generally reserved for rela

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tively senior personnel. He was told that under the new regulations, the chairman of the board will be a captain, but that custodial staff will dominate the board. He believes this is unsound, neither the reality nor the appearance of impartiality will be maintained under such circumstances. Mr. Conrad believed consideration should be given to adoption of the Minnesota system of independent hearing officers, preparation of the charges by legally trained personnel and defense representation by persons chosen by inmates under charges.

The various classes of segregation were confusing. What seems clear is that a man going into segregation for any reason will probably not be released to the general population during his stay at Michigan City. Many of the men in Administrative Segregation (the most serious chronic disciplinary problems) claimed to have been locked up for periods in excess of a year — some for as long as three years. While some of the offenses admitted to him by these prisoners were very serious, there seemed to be no program to modify their behavior other than the service of a long sentence in secluded idleness. Mr. Conrad recommended that all persons in Administrative Segregation or the Seclusion units should be assigned a counselor for intensive contacts. Sentences to these units should be indeterminate, with provision for parole controls to allow for trial returns to the general population. It simply is not acceptable to require protracted sentences under these conditions with no provision for programmed release. Further, the educational and recreational staffs should give special attention to the need for programs for those men who must be detained for periods of time in excess of a week. There should be encouragement to participate in cell courses, and in daily yard exercise. This recommendation should be readily feasible; there are four correctional officers on duty in these units during the daylight hours.

There were 46 prisoners in protective custody at the time of the visit. While this is not an unusually large number of prisoners so confined, it is unsatisfactory to find that no program is provided for them. Much more could and should be done to assure that these men are properly programmed. Many could be assigned to work programs during the day, or to school, remaining in protective control only at night. It was not clear to Mr. Conrad that sufficient investigation of the situations of the men under protection had preceded their assignment.

This.is a difficult problem to manage in any prison. It must be kept in mind that under the present protective custody plan, very few inmates once assigned to such a unit can ever return to the general population. The basic principle should be to take every step possible to provide alternatives to inmates requesting protection.

At the Education Department, about 300 prisoners are enrolled in academic and vocational training program. About 140 are on all day assignment to vocational training; the rest are part time students. Because the work program, to be discussed in the next section, is so inadequate, it would be desirable to expand the education program to the greatest extent consistent with quality in the program offerings. There appeared to be some unused space in the education unit; it should be put to use as rapidly as possible. Mr. Conrad does not recommend mandatory assignment to educational program under any circumstances.

The main prison industry is the license and sign plant, to which 207 men are assigned. Payment is meager with a maximum daily rate of $1.10 for skilled workers. Equipment appears to be adequate. Mr. Conrad was told that there is a waiting list for assignment and that turnover is low. The work day is about five hours, the pace was leisurely. A fairly typical tag plant; not a bad place to get away from the rest of the prison, but hardly comparable to conditions in an efficient factory — which one would like to see these men returning to when released.

There really isn’t enough work to go around. The food manager told Mr. Conrad that he employed 150 men in the mess hall where 100 would be more than enough. The consequence is that many of the work

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ers in the mess hall are working at assignments that could not possibly keep them busy for as much as an hour a day. There seemed to be a large number of cell tenders, men whose assignment is to sweep up and mop the cell houses. The number of men who are not in full time lockup but officially idle is about 50, not an impressive fraction of the total population. This is mostly an idle prison, inhabited by criminals with long sentences. There are over 450 lifers from the old statutes, and a considerable number of men under the new law who are serving very long terms — some adding up to more than 100 years. The combination of semi-idleness and protracted incarceration is dangerous to both staff and prisoners. It should be a matter of high priority to create a program of heightened activity, consisting of more work and more education.

A classification system is useful only where there are programs for which prisoners can be classified. It is effective only if staff are available to interpret it to program staff and to inmates. At Michigan City there are ten classification counselors for the whole population — an average of at least 180 inmates per counselor. Further, these counselors are occupied doing board reports and maintaining minimal records. Counselors are unable to maintain regular systematic contacts with their caseload. A functional caseload per counselor would be sixty, with counselors handling inmates in segregation and protective custody at somewhat lower levels than sixty.

In the area of mental health professions, an institution this size, with this population requires one full time board certified psychiatrist, two clinical psychiatrists, and the same number of psychiatrist social workers to meet the inmates mental health needs. Currently, none of these positions exist with the exception of a vacant position for a psychiatrist.

This concluded the testimony of Mr. Conrad.

Mrs. Louise E. Goggans.

Mrs. Goggans, called as plaintiffs’ fourth expert witness, is currently employed as the Director of Nutrition Services at Wishard Memorial Hospital in Indianapolis, Indiana. She received her A.B. degree in Home Economics from Indiana University in 1956, did a dietetic internship at Hines V.A. Hospital, Hines, Illinois and received her M.S. degree in Nutrition Education from the same university in 1969.

Mrs. Goggans has worked as a staff dietician since 1957 at no less than six hospitals. She has over twenty years experience as a dietician. Mrs. Goggans is also a member of the American Dietetic Association, the Indiana Dietetic Association, the Central District Dietetic Association, Indiana Public Health Association.

On Friday, August 1, 1980, Mrs. Goggans made an inspection of the food service facilities at the Indiana State Prison, Michigan City, Indiana. During the aforementioned inspection, she interviewed inmates, staff and administrators of the Indiana State Prison. The following are her observations and conclusions regarding the food service provided at the Indiana State Prison:

The inspection began by proceeding to the prisoners’ Dining Room (PDR) and kitchen. The food service facility is a single large building which sits somewhat in the middle of the prison complex inside the walls. There is a service line on each side of the dining room with the conveyor and dish room in the middle of the room. The kitchen consists of a ramp area containing six large steam-jacketed kettles, a bank of deep fat fryers, a bank of grills, a bakery preparation area, two large rotary ovens, large walk-in coolers and a walk-in freezer, and an area for special diet preparation. Above the kitchen is the food service supervisor’s office.

The breakfast menu for the day was: fresh oranges, cream of rice cereal with raisins, boiled eggs, toast, jelly, milk, coffee. The breakfast cook was preparing the cereal and eggs when Mrs. Goggans arrived, which was approximately 5:00 o’clock A.M. After preparing them, they were placed in large stainless steel containers and taken to the serving line for breakfast.

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Meal service began at 5:45 o’clock A.M. and the prison workers ate their breakfast first. Mrs. Goggans was never told exactly how many prisoners worked on each shift, but was told by both Mr. Jasper, the food service director, and the supervisor, Jim, that the total number of workers was 105, and the number of civilian supervisors was 18. Mr. Jasper said the shifts and working times were determined each day by the menu preparation and his own discretion.

When the prisoners were fed, they received adequate portions and Mrs. Goggans was told that the only items served that were rationed were meat and fresh fruit. The prison workers were attired in regular prison garb (blue denim shirt and blue jeans) or white shirt and white pants. All the workers had some type of covering on the heads, e. g., hairnet, hankerchief or cap. They also used either cotton or plastic gloves while they served the food.

There was a special diet line set up for the diabetic patients but Mrs. Goggans did not observe anyone who was served from this line either at breakfast or at lunch. The diabetic menu is written for an 1800 calorie diet and Mr. Jasper said they adjust the diet up to 2500 calories or down to 1200 calories according to the doctor’s orders.

During the breakfast hour Mrs. Goggans went to the I.D.U. detention unit and observed the breakfast service there. The food was transported on a hot cart and the coffee in a large stainless steel thermos. The prisoners there received the same food except they also got two slices of bread in addition to toast. Patients in the hospital were also served from a hot cart. There were only 13 patients in the hospital, and one of them was in isolation.

After breakfast, Mrs. Goggans observed the dinner preparation. The “ramp cook” was making a white sauce for the escalloped potatoes. The potatoes were dehydrated sliced potatoes which had been rehydrated early that morning. The coleslaw consisted of coarsely chopped cabbage mixed with salad dressing. The baker was preparing chocolate cake with chocolate icing. Fish was deep-fried about 9:45 o’clock A.M. The fish was a prefabricated product that tasted good while it was hot. A tartar sauce had been prepared to accompany the fish. The coleslaw, which was very coarsely chopped, had no seasoning, was not a very good product. The potatoes were not cooked long enough and were tough and chewy. The creamy style corn was canned and had been heated with oleomargarine added for seasoning so it was adequate. The chocolate cake had extra eggs and flour added to give it a better texture, so it was very good and had an excellent texture.

Mrs. Goggans asked Mr. Jasper about:

a. Recipes for food preparation:

He told her that they were kept in his file and he used them for training of the cooks. However, she did not see any of them. He also said that each time a product was prepared, it was prepared differently to add more variety to the meals. To her, this would defeat the purpose of having standardized recipes if the product was going to be prepared a different way each time it was cooked.

b. The amount of money spent per diem per man:

That amount is one dollar ninety-one cents ($1.91).

c. Who does the training of cooks and supervisors:

Mr. Jasper takes personal responsibility for the training of the personnel. The early supervisor, Jim, who stated that he had been on the job for about three years, did not appear to have much knowledge about food preparation. Mrs. Goggans observed him telling the employees in the kitchen to put out their cigarets a number of times.

The present area where the trash and garbage is stored is located outside the kitchen and dining room in the rear of the building. The area was dirty, smelly and fly-infested. A new area is supposedly being constructed inside the kitchen for this purpose. Mrs. Conrad questioned the feasibility of locating the area inside the kitchen considering the condition of the present area. It would possibly cause problems with dirt, odor and insects.

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The other areas that Mrs. Goggans visited were the general store, butcher shop, and storage for the commissary. In the commissary, the correctional sergeant in charge stated that aside from tobacco, the food items are the fastest selling items in the commissary.

Just before preparing to leave, a group of inmate workers asked if they could speak with Mrs. Goggans. There were about 12 prisoners in the group who indicated that they had some complaints about the food service that they wished to share. They told her the following things.

a. Normally, no one employed in the kitchen or dining room wore gloves or hats, that these items were passed out to them and other preparations made because of the notice the prison officials had of her intended inspection.

b. Most of the prisoner workers refused to eat the baked goods and advised their friends to do the same because one of the bakers had been treated twice for hepatitis and once for gonorrhea and used his hands in icing the cakes and in handling the baked products.

c. The baked goods were usually baked a day ahead and were stale by the time they were served.

d. Prison employees had been working on cleaning up the kitchen for three weeks prior to her visit.

e. Their most adamant complaint was that the quality of the food was so poor and no real effort was made to improve it in spite of their consistent complaints. No seasoning is used in food preparation except salt and oleo. Mrs. Goggans did not see any evidence of spices or flavoring, even though Mr. Jasper told her that the cooks used many varieties.

A great deal of preparation apparently was made for this visit. Even though the floors had been recently scrubbed and mopped, there was an observable accumulation of old dirt on the floors.

The serving of special diets is inadequate. A prisoner prepares the food. Since there is no dietician or other qualified person there to supervise or check his work, the diets could not be accurate. Mr. Jasper indicated that the 1800 calorie diet could be raised to 2500 calories or lowered to 1200 calories if needed, but there was only one written diet and that was an 1800 calorie diet, and to make these adjustments would require someone who had been trained to handle special diets.

Even though the food is adequate in quantity, the preparation is poor so the end product is often undesirable and probably leads to excess waste. If trained personnel is available, it would seem practical to allow them to use their talents and skills to make the food more appetizing. Manpower does not seem to be a problem, since there appears to be plenty of people working in the kitchen.

For those inmates who do not eat pork, perhaps for religious reasons, their diet would be deficient since there are no substitutes offered on the menu. Here again, the services of a qualified dietician could be used to adequately adjust the menu with substitutes for these inmates.

The menus provided Mrs. Goggans were checked for accuracy and adequacy according to RDA (recommended dietary allowances). The diabetic menu was inaccurate on four of the seven days. Cookies were on the diabetic menu for breakfast on Tuesdays and normally sweets are not served to diabetics.

Nutrients Days of the week below RDA

Calories Sunday, Tuesday, Thursday

Vitamin A Sunday, Wednesday, Friday, Saturday

Vitamin D Every day (no fortification)

Vitamin C Sunday, Tuesday, Saturday

Thiamine Tuesday

Riboflavin None

Niacin Tuesday, Thursday, Saturday

Calcium Wednesday and Thursday

Phosphorous None

Magnesium Every day

Protein None

The inadequacies of the above listed nutrients, would leave the diet deficient of the recommended daily allowances and therefore making the menu inadequate. These calculations were made prior to visiting the institution based on a standard serving rather than what was actually served.

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This concluded the testimony of Mrs. Goggans.

Dr. Ronald M. Shansky, M.D.

Dr. Shansky, called as plaintiffs; fifth expert witness, is currently employed by Cook County Hospital as an attending physician and is the Medical Director of the Uptown Peoples Health Center. He received his B.S. degree from the University of Wisconsin in 1967 and his Doctor of Medicine from the Medical College of Wisconsin in 1971. He subsequently received his Master of Public Health from the University of Illinois School of Public Health in 1975. Dr. Shansky is a licensed physician in the State of Illinois and is board certified by the American Board of Internal Medicine.

Dr. Shansky’s medical experience is very wide. Most notable, however, is his service as the staff physician at the Metropolitan Correctional Center of Chicago, his appointment by United States District Court Judge J. Foreman to advise on health conditions at Menard State Prison in 1976, and his position as medical consultant to the United States Department of Justice Civil Rights Division. Additionally, Dr. Shansky has inspected the medical facilities in 14 prisons in eight different states.

On July 18 and 19, 1980, Dr. Shansky inspected the medical facilities at the I.S.P. This inspection consisted of review of the physical facilities, interviews with correctional and medical staff, interviews with inmates, and review of medical records and documents. Dr. Shansky also went through the medical facility on January 12, 1981, prior to his testimony. The following are his opinions and observations regarding the medical facilities and services at the I.S.P.:

The leadership of the medical services program belongs to Dr. Ronald Freake, a non-physician. He has clearly attempted to improve the organization of the medical services by developing a policy and procedure manual and protocols for medical care. Physician assistants have been hired, a medical audit review committee has been established and efforts have been made to give some of the staff eardio-pulmonary resuscitation training. Many of the staff, the physician extenders in particular, seemed extremely dedicated, concerned and committed to a decent standard of care for the inmates. They work under extremely trying conditions. In addition, plans are underway to develop a unit dose system for the pharmacy. Policies do include an entrance history and physical exam on all inmates. Finally, various specialists from the community are used and dental services are available. Despite the encouraging signs noted by the above-described phenomena, serious deficiencies still exist resulting in potential threat to the health and well being of the inmate population.

STAFFING

Physician staffing consisted of Doctors Mai, Gallinatti and Dang. Their responsibilities included daily sick call for the general population, infirmary rounds, supervision of medical technicians and physician assistants, segregation sick call, performance of medical procedures, review of laboratory, ancillary services reports, and functioning on committees as designated. In addition, they are expected to be on call for emergencies at nights and on weekends. From discussions with staff and review of records, the physician staffing has been deficient for quite some time. Supervision of the physician assistants and medical technicians was extremely deficient. In addition, both inmates, correctional staff and health services staff indicated that at least one and possibly two of the physicians had difficulty understanding the patients and were unintelligible themselves to the patients because they are foreign medical graduates. Since doctor/patient communication is the basis of the doctor/patient relationship, deficiencies in this area may result in serious jeopardy to the well being of the patients. Three full time physicians, as the total physician staff, does not appear to be adequate. In addition, the positions must be filled with individuals who take full responsibility for the care of the patients. The significant shortage in physician staffing results in inefficient primary care functions and may also result, therefore, in inappropriate

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use of specialists. A very serious result of this physician shortage is the inadequate supervision for all personnel functioning under the supervision of these physicians.

Physician assistant staffing consisted of Mr. Baker and Mr. Pitcher and there was one nurse practitioner, Ms. Case. Ms. Case was responsible for supervising the medical technicians. The physician assistants were responsible for performing sick call duties, triaging inmates to the medical technicians and physicians and performing various medical procedures under the supervision of a physician. In addition to seeing patients from the general population at sick call, physician assistants could admit patients to the infirmary when indicated. The physician assistants were also on call for emergencies. This number (3) of primary care extenders is also insufficient and results in overwork and delegation of functions to medical technicians which are beyond the capability of the medical technicians.

There were five medical technicians whose major responsibilities were sick call, the infirmary whenever they were able to get there, and medication distribution. It was agreed by all staff that this number of medical technicians was also insufficient and resulted in officers distributing medications on the tiers and in the work areas. From the medical records and from inmates and staff, it was consistently reported that inmates did not get their medications. No record is kept as to whether the inmate received his medications. When the officer doesn’t give the medication, he writes “R”. This does not differentiate refusal from unavailable. Only medical personnel should be involved in the distribution of medications.

There is only one laboratory technician and this resulted in inmates working in the laboratory and thus having access to laboratory results.

A correctional officer was responsible for the medical records area. This is totally unacceptable. A full time medical records librarian and several clerk typists are necessary to staff an adequate medical records library.

No physical therapy staff were present. At least one part time and possibly full time physical therapy person should be present.

Dr. Freake indicated that dentists were providing a total of 96 hours of dental services. He also indicated that this resulted in up to two weeks delay for routine and sometimes urgent dental services. This is woefully inadequate and results in significant delays, discomfort and pain for inmates at the institution. In addition, by and large, dental services were restricted to extractions and fillings. Thus, frequently salvageable teeth may in fact be lost. Current population requires at least three full time dentists.

There appeared to be no physician medical director. This has resulted in medical policies developed without physician input and labeled as administrative (see administrative memos Nos. 4, 5 and 10). In addition, overall medical responsibility is vaguely defined. Finally, this results in poor physician extender and medical technician supervision. The infirmary had one RN during the days and this was the sole source of staffing for an area that maintained roughly

IOV2

inpatient census on the average. An infirmary such as this, should have at least one RN on each shift round the clock, seven days a week.

Finally, the mental health services available are glaringly deficient in terms of staffing. There were no full time psychiatrists. There was a group of psychiatrists who saw six to eight inmates for parole evaluations on Saturdays, and two to four other inmates. There was no ongoing therapy provided by psychiatrists or psychologists on an individual basis. There was minimal psychologic evaluation done and supervision of psychotropic medication usage was inadequate. Despite repeated reports to the responsible officials, there has been little, if any, improvement in recruiting and hiring

of

staff despite these deficiencies and, in fact, in some areas recently the staffing has been reduced.

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INTAKE POLICY

As of June 23, 1977, it was the policy of the institution to perform “physical exams where needed as well as a screening battery of tests on all new arrivals.” All new lifers and parole violators were to receive physical examinations and the same battery of tests, plus a VDRL. (See June 23, 1977 memo). Although there was general compliance with this policy, a record review indicated instances where examinations were not done and no notation was made in the record as to the reason for the exception from this requirement (D. Brandon). In addition, significant findings were apparently overlooked and not pursued (E. Watts, D. Brandon). These are examples of inadequate physician supervision.

PERIODIC EXAMINATIONS

There are no policies regarding periodic examinations on inmates and none appear to be carried out. Thus, inmates entering before June 1977 may not have had a complete history and physical exam and inmates with chronic diseases may not have had a complete examination for many years. Patients with chronic diseases may be overlooked and their conditions progressively deteriorate. Also, elderly inmates may develop conditions that go undetected until the problem is irremediable.

SICK CALL — GENERAL POPULATION

Inmates housed in the general population may receive medical assistance during non-emergency circumstances by signing up at the desk of the tier officer. It is the responsibility of this officer to communicate the list to the medical area where each morning the physician assistant triages the list and decides who should be seen by a medical technician and who will be seen by the physician assistant or by the physician. Both medical staff and inmates indicate that there are problems with inmates getting to the sick call area. The system allows for custody interference without any accountability. Inmates indicate that they don’t get passes to the medical service when custody indicates the inmate refused to go. No record of inmate refusal is kept. In addition, many inmates indicate they sign up and they are not called because their names never get to the medical service. Finally, inmates are supposed to indicate to the officer the nature of their medical problem requiring medical attention. This is clearly an invasion of inmate medical privacy-

Inasmuch as medical technicians have rarely completed an approved physical diagnosis course, this is an inappropriate utilization of them. They should not be involved in providing direct medical services which include the potential for diagnosis and treatment. Their involvement should include the taking of vital signs and dressing changes under the supervision of a physician or a physician assistant. It appears that by default they may have been given inappropriate responsibilities. This could seriously jeopardize the well being of inmates. From statements of both the physicians and physician assistants, the only supervision of the physician assistant is if he or she asks a question. Both indicated that they infrequently interact with regard to clinical problems. Inadequate physician supervision of physician assistants is a very serious problem within correctional institutions. Inmates do not have the same option as individuals in the free world have in terms of contacting a physician at any time, i. e., through an emergency room, clinic, or private office. Therefore, the functioning of mid-levels in the prison setting is not analogous to the general role of mid-levels outside the corrections system. Although a physician assistant is trained in physical diagnosis, it is critical that they have good onsite supervision. In addition, this is the only way that they can learn and continually grow in their roles. Mid-levels are regularly diagnosing and prescribing in this institution without adequate supervision. This puts them in the position of practicing medicine without a license. This gravely serious situation has occurred despite repeated requests to prison officials for more supervision. A review of the record demonstrates that this chronic lack of attention to medical supervision has resulted in potential and real harm to inmates.

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Finally, once seen by the provider, therapy is regularly not initiated for two to four days because of delays in getting the prescriptions processed. Staff indicated that not infrequently specific kinds of therapy such as antibiotics or analgesics were not in supply and this resulted in long delays. This is again a problem for which correctional officials have been long aware and unwilling or unable to solve.

SICK CALL — SEGREGATION

According to Dr. Freake, once weekly a physician makes rounds on the segregation units taking notes as he passes by the cells and then sending passes for those needing more detailed evaluation. This frequency of physician contact to segregated patients is grossly inadequate. On the other days a physician extender or medical technician makes rounds walking past cells, making a record of the particular complaints presumably for presentation to a physician. In addition, staff indicate movement to medical service is routinely obstructed due to correctional staff problems. Medical staff indicated that movement of inmates for medical reasons was always subject to the convenience of corrections. This lack of access to the physicians coupled with the delay in initiation of prescribed therapies results in significant potentials for conditions which may, on the one hand, be easily treated, deteriorating until they become much more serious medical problems. It is well known that inmates who are on segregated confinement and thus have less exercise as well as activities then inmates within the general population, are prone to far more frequent symptom manifestation. Therefore, rather than having less access to medical services, these are the inmates that are most in need of access to medical services.

PHARMACY AND DISTRIBUTION OF MEDICATION

The pharmacy was under the supervision of a part time pharmacist. Plans were being developed to dispence all medication from Westville. However, medical staff indicated that the current system was woefully deficient and were dubious that the severe problem of delays in medications ordered getting to inmates would be alleviated by the transfer of responsibilities to Westville. In fact, some thought that the current problem may be exacerbated when the plan to initiate medications at Westville become a reality.

The current system consists of a provider writing a prescription and this prescription being taken to the pharmacy. At the pharmacy, three clerks, who have been trained on the job, put up the medicines. It is not clear that a pharmacist directly supervises these activities all the time. In fact, this appears unlikely. This is particularly true since the pharmacist was responsible for maintaining inventories and ordering supplies in addition to supervising these activities. Once the prescription was filled, it was transmitted to the correctional officers for distribution to the inmates. All staff indicated this system was woefully inadequate as it interjected an untrained correctional officer into routine medical procedures. This problem with resultant complaints from inmates and medical staff has been brought to the attention of prison officials for many years. In summary, we have a system where improperly supervised personnel prescribed medications to be filled by other personnel who may not be adequately supervised. This medication is then distributed by untrained personnel. This only multiplies potential hazards to inmates. Medical staff were unaware of a formulary committee to set policies and procedures in this area and were not informed as to the function of a state-wide formulary committee. In addition, no patient profile was maintained to preclude the distribution of medications that might conflict. This deficiency is all the more important in view of the poor supervision at all levels of the health care interaction.

From administrative memoranda Nos. 4, 5, and 10, this institution has tolerated unprecedented intrusion into medical policy-making by the correctional hierarchy. In addition, these medical policies appear to emanate primarily from a collaboration of correctional and administrative staff with

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out significant physician input. The vacuum created by inadequately physician input for many years, appears to have resulted in correctional intrusion into this area. This is an extremely dangerous precedent. Correctional officers have neither the medical knowledge, skills nor sensitivities to be involved in medical policy-making.

FOOD SERVICES

Dr. Shansky’s review of the food services revealed that, although a professional food services manager was in charge, there was no consultation from a dietician at the prison level. Thus, the only special diet available was the 1800 calorie diabetic diet which was also low salt. Twenty-two inmates were on these diabetic diets.

EMERGENCY RESPONSE

The current system utilizes medical technicians as the onsite medical personnel in off hour shifts. The system is based on an inmate yelling to attract an officer’s attention. The officer then calls the captain who notifies the medical technician, who notifies the physician or physician assistant. The physician or physician assistant then calls the ambulance. Once the ambulance is called, it takes from 10 to 20 minutes for the ambulance to arrive and another six minutes for it to leave the correctional institution to get to the hospital. All indicated that inadequate numbers of the technicians and corrections staff onsite were trained in cardiopulmonary resuscitation. Given the cumbersome system outlined, this could easily result in unnecessary deaths. In addition, officers, as a group, have not been adequately sensitized to emergency procedures. Indeed, they have not been sensitized to medical problems in general. This results in long delays before the inadequately trained medical personnel who are onsite, i. e., the medical technicians, are finally notified.

INFIRMARY

The infirmary, for which Dr. Freake is requesting limited Joint Commission on Accreditation of Hospitals accreditation, was staffed by one RN on the day shift. No other staff were regularly assigned to this area, even though the average census in this area was 10.5 patients. Medical staff indicated to us that patients in that area, not infrequently, had conditions which deteriorated as a result of the poor attention. A facility such as this, should have an RN on each shift, in addition to other nursing staff. Infirmary medical records indicate that contrary to written policy (Medical Services Policy: Patient Conduct/Inpatients), patients have been discharged from the infirmary to physician assistants. In addition, the medical supervision by the physicians has not been adequate and their progress notes are often infrequent (Brewer).

The second floor of the hospital was being used for the housing of 67 inmates jn five to eight rooms. These inmates were on safekeeping segregation status. The housing of these inmates in close proximity to the infirmary, which presumably has more susceptible people in it, runs the risk of spreading significant infection.

LABORATORY

The laboratory was understaffed and thus utilized two inmate technicians. This results in inmates having access to private medical information of other inmates. All agreed that this was totally unacceptable. The laboratory seemed to have ample space and a competent technician was in charge.

STAFF MEETINGS

Medical staff indicated there were a dearth of meetings where cases or problems were discussed. Many staff indicated a lack of clear-cut goals or directions and felt this contributed to poor morale and high staff turnover. Staff indicated that the major goal of medical administration was to confirm the medical services to correctional needs.

PHYSICAL FACILITY — HOUSING

From correctional staff and inmates and Dr. Shansky’s own direct observation, several of the tiers were filthy. In particular, in C Cell House, a large pile of garbage and half-eaten food lay in a corner. The officer who escorted us, informed us that this was an every day occurrence. He stated that both rats and roaches were very visible

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despite monthly spraying to prevent roaches. This problem and its attendant health hazards for spread of contagion has been well-known to correctional officials for many years.

INSERVICE TRAINING

Medical staff indicate despite the repeated requests to officials, there is minimal formal inservice training for mid-levels or physicians. No formal set of lectures has been developed. In addition, there is no morning report where problems that have arisen during the previous day are discussed and responses evaluated. This leads to poor followup, poor morale and is a reflection of inadequate medical supervision. This problem increases the potential for patient care error.

MEDICAL RECORDS

This area was supervised by a correctional officer who had no medical records training. This is clearly unjustifiable. Ms. Brown, the correctional officer, was unaware of routine medical records filing procedure. In addition, she stated she believed “most inmates received passes so they could run around.” This attitude potentially jeopardizes her performance of her critical job. The medical records I reviewed were frequently deficient in basic organization. Pages were out of chronological order and lab work was mingled with progress notes. Progress notes didn’t indicate the title of the person writing the notes. Test results were present without any reference to them in the notes or apparent awareness by the individual writing the note that the lab work was in the chart. Out-guides were not used by the medical records staff, thus making more difficult the locating of charts. The medical record jackets were old, worn, and lacked a color coding, thus, increasing the possibility of misfiling of the records and unavailability of crucial medical information. Dr. Shansky had been told that prison officials have been aware of the serious deficiencies in the medical records area for quite some time. They apparently again have been either unable or unwilling to solve these serious problems.

INDIVIDUAL PATIENT RECORDS

Mr. Ernest

Brewer: A 55 year old male who is an extremely brittle diabetic and therefore on split dosage insulin both in an A.M. and a P.M. dose. Mr. Brewer is supposed to receive 60 units of Lente insulin plus five units of regular insulin every morning, and 70 units of Lente insulin plus seven units of regular insulin every P.M. These are extremely high doses, an indication of the severity of his diabetes. An indication of the inconsistency of the medical care Mr. Brewer has received can be seen by the charting in June and July 1980. June 14, 15 and 16, Mr. Brewer only received his morning dose; June 28, only the morning dose; July 5, only the A.M. dose; July 6, the A.M. dosage was also given in the P.M.; July 10, only the A.M. dose was given; July 11, nothing was given; July 12, only the P.M. dose was given. Thus, between the morning of July 10 and the evening of July 12, Mr. Brewer did not receive four straight doses of insulin. Dr. Shansky mentioned in passing that Mr. Brewer was seen by the medical audit committee many times, but his problems were never adequately addressed. Mr. Brewer first came to the medical service in 1975 and indicated that he had an eight to ten year history of a tremor. He was started on medication and a neurology consultation was ordered in July 1976. This consultation was never carried out. On April 14, 1977, Mr. Brewer ' complained of substernal chest pain. He was seen by a non-physician. An EKG was ordered but was not noted. He was not seen by a physician until April 20, six days later. On June 3,1977, a physician saw him and made the diagnosis of familial tremor and requested a trial of high dose Inderal be started. June 14, a PA notes that the Inderal had already been tried in the past. On November 9, 1977, Mr. Brewer was noted again to have chest pain, was seen by a physician assistant and Dr. Saylor and digitalis, a heart medication, was recommended. On June 29, 1978, he was put on digitalis again. In December 1978, he was no longer on digitalis even though on November 14, 1978 he was seen and the diagnosis of early congestive heart failure was made. This

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was made by a physician assistant, he was not seen by a physician and he was put on digitalis again. After December 20,1978 he was no longer on the heart pill. An undated note, between May 24, 1979 and July 16, 1979, indicates Mr. Brewer had sharp substernal chest pain, had a blood pressure of 170/102 which is extremely elevated and a pulse of 110, which is extremely rapid. No EKG was done and no physician saw the patient. On October 28,1979 he complained of swelling of the legs. On November 16, 1979 he was noted again to have swelling of the legs and was put on two water pills and a blood pressure pill by Dr. Mai. By December 12, 1979 swelling of the legs was noted again. February 5, 1980, his kidney function tests were noted to be normal. On March 24, 1980 he was again noted to have swelling, but no evaluation or diagnosis was done. On February 18, 1980 he was noted to have an elevated calcium on the lab slip. No note of this was made; no followup was done. He was seen by psychiatry on April 12, 1980 by a Dr. Kim, who states the chart was not there and who also noted reevaluation with chart is necessary. This was never done. During the spring and early summer of 1980, Mr. Brewer was seen many times primarily by the physician extenders. Despite the fact that his legs were swelling and despite the fact that he had a clear-cut prior history of congestive heart failure, no weights were recorded, no EKG was done, and a note was written indicating that Mr. Brewer had been seen ten times and didn’t take care of himself. Although the diagnosis was clearly made previously of congestive heart failure, because of the poor supervision of the medical services, it wasn’t even considered that time. From that period, to give an example, on June 21, 1980, swelling in the lower extremities was noted, blood pressure was 140/90 and the pulse again was rapid. Note indicates unable to reach Dr. Dang. Ms. Case, nurse practitioner, was contacted and she ordered a diuretic and for the patient to elevate his feet. Blood tests were ordered. The patient was then not seen until June 28 when Dr. Mai ordered a water pill and indicates the patient was to be reevaluated on sick call. He was not seen then until five days later.

An indication of the confusion as to the charting of the records, is seen when on May 10, 1980, the A.M. dose was charted, the P.M. dose was charted, but the notes say Mr. Brewer did not receive his A.M. dose. No insulin was charted on May 11, 1980. By May 12, 1980, the note says patient feels weak and shaky, only a late dose given. The blood sugar was 251. Beginning on June 13, 1980, the patient complained of swelling in his legs. Mr. Brewer was clearly at high risk for the cardiovascular complications of diabetes, has had inconsistent and inadequate treatment due primarily to an abysmally poor record system and poor supervision from the physicians of the other staff. The inability of the staff to diagnose Mr. Brewer’s problem, even though it had occurred before, led to blame for the problem residing with Mr. Brewer. His inadequate treatment for his heart problem is, in itself, contributing to deterioration of his heart. All of this contributes to increasing his risks ultimately of a heart attack.

Mr. Earl Watts'.

A note on March 5,1980 indicates patient has not gotten his meds as ordered. Pain persists. On March 3, 1980, Mr. Watts was seen by a physician assistant apparently without a physician and for what apparently was diagnosed as a urinary tract infection was given two separate antibiotics. This is also a very uncommon form of treatment for outpatient-acquired urinary tract infections. Mr. Watts had been originally seen in October 1977. At that time he was noted to have a positive TB test. A chest x-ray lordotic view was ordered. This was never done.

Mr. Ronald Baurle:

A note from September 6, 1978, intake form: Dilantin 100 q. i. d. four times a day. Phenobarb 1 quarter grain, four times a day. In October 1978 the medication Dilantin which is an anticonvulsant, is listed as 375 milligrams four times a day, ordered continued. Since no Dilantin blood levels were obtained and no recording of the side effects of Dilantin were noted, and, in particular, since this is a

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potentially toxic dose with potentially fatal complications, this indicates an extremely serious and hazardous danger to Mr. Baurle.

Dr. Shansky reviewed eight other inmates’ medical records, all of which suffered similar criticism. This concluded the testimony of Dr. Shansky.

Mr. Cleon Foust

Mr. Foust is an attorney from Indiana who has had extensive contact with this correctional institution. He has been an attorney in private practice, a professor of Law at Drake University, an assistant Attorney General, and then Attorney General of Indiana. He left that position to teach at the Indiana University Law School at Indianapolis, and ultimately became the Dean of that Law School. Mr. Foust has been active in the Indiana Lawyers Commission for the last ei

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