# Austin v. Hopper

> District Court, M.D. Alabama · August 10, 1998 · 15 F. Supp. 2d 1210

URL: https://www.frixlaw.com/law-library/cases/2314799

## Case

- **Full name:** Michael A. AUSTIN, Richard Elliot, Ogie Lee Hayes, Charles Orlander Guess, Warren Leatherwood, and Kervin Goodwin, Plaintiffs, v. Joe HOPPER, Commissioner of the Alabama Department of Corrections, Defendant
- **Court:** District Court, M.D. Alabama
- **Decided:** August 10, 1998
- **Citations:** 15 F. Supp. 2d 1210; 1998 U.S. Dist. LEXIS 12651; 1998 WL 497693
- **Precedential status:** Published
- **Opinion:** Opinion by Thompson
- **Judges:** Myron H. Thompson
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2314799

## How later opinions describe it (automated extraction)

- observing that prison is nonpublic forum and applying Turner test to First Amendment challenge to prison’s visitation policy
- stating that “class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where only injunctive and declaratory relief are sought”
- observing that a private prison conditions settlement agreement is not restrained by the requirements of the PLRA; however, any breach of the agreement must be determined in state court

## Opinion text

MEMORANDUM OPINION
MYRON H. THOMPSON, District Judge.
In this class-action lawsuit, the plaintiffs, who are inmates in the Alabama prison sys
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tem, challenged the following four policies and practices employed by the prison system: (1) the use of “chain gangs”; (2) the use of “hitching posts”; (3) the denial of visitation rights to certain inmates; and (4) the failure to provide adequate toilet facilities to inmates on work squads. The plaintiffs claim that these policies and practices violated the first, fifth, eighth, and fourteenth amendments to the United States Constitution, as enforced through 42 U.S.C.A. § 1983 . The plaintiffs named the Commissioner of the Department of Corrections (hereinafter “DOC”) as defendant. The subject-matter jurisdiction of the court has been properly invoked pursuant to 28 U.S.C.A. §§ 1331 , 1343(a)(4).
This lawsuit is now before the court on the recommendation of the United States Magistrate Judge.
1
In it, she recommends the following: (1) the approval of the parties’ settlement of the plaintiffs’ challenge to the use of chain gangs, including certification of a plaintiff class as to this claim; (2) the approval of the parties’ settlement of the plaintiffs’ claim that inmates on work release are not provided adequate toilet facilities; (3) the certification of a plaintiff class as to the plaintiffs’ remaining two claims, the visitation-privileges claim and the hitehing-post claim; (4) a holding that the denial of visitation privileges to certain inmates is constitutionally impermissible; and (5) a holding that the use of the hitching post is constitutionally impermissible.
For the reasons that follow, the court accepts the Magistrate Judge’s recommendation to the following extent: (1) the chain-gang settlement is approved and a plaintiff-class certified; (2) plaintiff classes are certified as to the plaintiffs’ visitation-privileges claim and their hitching-post claim; and (3) the DOC’s use of the hitching post is held to be unconstitutional, albeit only as to the
manner
in which the hitching post is generally used. The court rejects the Magistrate Judge’s recommendation as to following matters: (4) the DOC’s visitation-privileges policy is not unconstitutional; and (5), at this time, the toilet-facilities settlement is not be approved. The court will, however, enter a supplemental order setting forth the procedures necessary for the court to approve the toilet-facilities agreement.
I. STANDARD OF REVIEW
The court makes a “de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made.” Fed.R.Civ.P. 72(b); 28 U.S.C.A. § 636 (b)(1). The court “may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.”
Id.; see also United States v. Raddatz,
447 U.S. 667, 673-84 , 100 S.Ct. 2406, 2411-16 , 65 L.Ed.2d 424 (1980).
II. SETTLEMENT OF CHAIN-GANG CLAIM
On May 3, 1995, the DOC Commissioner implemented a “chain gang” prison labor policy.
2
Pursuant to this policy, inmates assigned to a chain gang were shackled by leg irons in groups of five; they were separated with eight feet of chain between them. The inmates, who were required to wear white uniforms with “CHAIN GANG” printed in black, were then taken to public highways or work sites on DOC property where they performed manual labor in ten-hour shifts.
3
One to two corrections officers supervised 25 to 40 inmates, who remained shackled to each other throughout the day, including during mealtime.
4
The type of work the
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inmates performed included cutting grass, picking up litter, and breaking apart rocks.
Although unused for the past 30 years, chain gangs have a long, sordid history in the State of Alabama. During the Reconstruction era, chain gangs provided an alternative to rebuilding the penal institutions that were destroyed during the Civil War; they also served as a cheap form of labor. The majority of these chain-gang inmates, who died at enormously high rates due to the brutal conditions, were African-Americans.
See
Lynn M. Burley,
History Repeats Itself in the Resurrection of Prisoner Chain Gangs, 15
Law & Ineq. 127, 129-130 (1997) (discussing history of the use of chain gangs). Chain gangs were later incorporated into the convict-lease system, whose atrocities have been well-documented.
See, e.g.,
C. Vann Woodward,
Origins of the New South: 1877-1913
214-215 (1951) (“For the Southern convict-lease system a modern scholar can ‘find parallel only in the persecutions of the Middle Ages or in the prison camps of Nazi Germany.’ ”) (citations omitted); Benno Schmidt,
Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases,
82 Colum. L.Rev. 646, 651 (1982) (“Alabama Governor Thomas E. Kilby in 1919 declared his state’s convict-lease system ‘a relic of barbarism ... a form of human slavery.’”) (citations omitted). Although the DOC’s modern version of the chain gang differs in many respects from these earlier models, the return of chain gangs to Alabama’s roadsides has provoked much concern from commentators, as well as jurists, about reviving a practice with such heinous roots.
See, e.g., Alabama v. Engler,
85 F.3d 1205, 1210 (6th Cir.1996) (Jones, J., concurring) (noting that a fugitive from Alabama, whom the Sixth Circuit held should be extradited by the State of Michigan, “will be tossed into a prison system that has adopted the barbaric ‘discipline’ of the chain gang. This perpetuation of injustice cloaked in the tattered cloth of the Alabama justice system is deplorable.”).
The purpose behind the reinstatement of the chain gang was, as stated in a form distributed to the inmates assigned to the chain gang, to send the inmates a message: “If you are worried about the Chain Gang, then don’t violate parole, commit crimes, or come to prison in ALABAMA.”
5
However, no uniform policy in the Alabama prison system was used to determine prisoner eligibility for chain-gang placement. Some prisons assigned only repeat offenders and parole violators to the chain gang. Other institutions used the chain gang as a means of punishing inmates who committed disciplinary violations.
6
In addition, Alabama trial judges were permitted to sentence inmates to placement on a chain gang as a part of a split-sentence. These sentences could range from 30 to 180 days.
7
The length of an inmate’s assignment to the chain gang, whether it was imposed through sentencing or a DOC classification, could be extended depending on the inmate’s behavior during the assignment. The “orientation” form for the Holman Correctional Facility explains the reassignment system as follows:
“You are now assigned to the Holman Correctional Facility ‘Chain Gang.’ The institution is a limited privileges work camp. You are expected to work while assigned to this institution. The length of your stay will be no less than 30 days. The average stay is 180 days. Many factors determine how long you stay. The number one factor is attitude and behavior. The number two factor is work performance and following the institution’s rules on the job and on all three (3) shifts. Bottom line, a clear record, no negative reports. Depending on the severity of your infractions or breaking rules you can be extended. For instance, you could be extended for: late for work, failure to shave, disrespect to a staff member, arguing with a staff member, not keeping your bed area clean and neat, etc. A disciplinary results in an automatic extension usually. Behave, if you want another job and more privileges and
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the opportunity for programs. If you don’t behave, you could stay here indefinitely.”
8
The plaintiffs’ chief claim in their original complaint was that Alabama’s use of chain gangs violated the eighth and fourteenth amendments of the United States Constitution. The claim encompassed two distinct sets of allegations: the first set related specifically to the increased risk of exposure to physical harm associated with accidents and inmate violence; the second included more general allegations concerning the physical and psychological harm inflicted by the use of chains that render the practice barbarous and inhumane. As part of the first set of claims, the plaintiffs alleged the following: (1) that the location of the gangs — alongside the highway — placed inmates at risk of being hit by a car, and further, that if an automobile accident did occur, the inmates were more likely to be hit or dragged by virtue of being chained together; (2) that the chains increased the likelihood of inmate-on-inmate violence because of the frustration inmates experienced while on the chain gang, and the chains rendered them unable to protect themselves should such violence occur; and (3) that the chains decreased the inmates’ ability to protect themselves from workplace accidents, especially at locations such as rock piles. In their second set of allegations, the plaintiffs complained that the shackles inflicted physical pain, by chafing their legs and causing swelling, as well as severe psychological pain.
9
According to the plaintiffs, this psychological pain emanated from the inherent indignity of being chained together, as well as the humiliation of being publicly exposed while working in such chains.
10
In their amended complaint, the plaintiffs raised a claim concerning the lack of adequate toilet facilities for chain gang inmates while they were placed on work sites.
11
The settlement agreement reached by the parties with regard to the chain-gang claim includes the following terms: that the DOC Commissioner, his agents and his successors, had ceased and would not resume the practice of chaining inmates together, but would use individual chains to shackle inmates; that Governor Fob James should be dismissed from the case;
12
that the plaintiffs would waive their right to seek fees and costs incurred in pursuing their claim related to the practice of chaining inmates together; that the plaintiffs’ challenge to the practice of chaining inmates together should be dismissed with prejudice; and that in the event the Commissioner or his successors breached the settlement agreement, the plaintiffs may reinstate their challenge to the practice of chaining inmates together, or enforce the agreement as a contract between the parties in State court.
13
During a pretrial conference with the Magistrate Judge, the DOC Commissioner agreed to withdraw his opposition to the plaintiffs’ motion for class certification only as it applied to the chain-gang claim in order to implement the settlement agreement.
14
One notable aspect of the settlement agreement, immediately seized upon by the inmates who objected to it, as discussed
infra,
is that the agreement only curtails the DOC’s ability to chain inmates to
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gether; it does not prevent the DOC from continuing the practice of placing inmates on public highways to perform manual labor in individual chains.
Rule 23(e) of the Federal Rules of Civil Procedure provides, in part, that “[a] class action shall not be dismissed or compromised without the approval of the court.” Not only must this court approve of the settlement agreement, it must also determine whether the agreement meets the requirements of the Prison Litigation Reform Act, 18 U.S.C.A. § 3626 (“PLRA”), as well as whether the putative class to which the agreement applies meets the criteria for class certification under Rule 23. These issues will be addressed by the court below.
A. The Prison Litigation Reform Act
Before approving the settlement agreement, the court must determine whether it complies with the PLRA. The PLRA limits the prospective relief a federal court may provide in cases concerning prison conditions. Prospective relief may “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs,” must be “narrowly drawn,” and “is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C.A. § 3626 (a)(1)(A). Further, the court may not “order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law” unless the following conditions are met: (1) Federal law permits such relief to be ordered in violation of State or local law; (2) the relief is necessary to correct the violation of a Federal right; and (3) no other relief will correct the violation of the Federal right. § 3626(a)(1)(B). In addition to limiting the type of relief a federal court may grant, the PLRA also curtails the longevity of such relief to two years after the court approves or grants the relief, or one year after the court has entered an order denying termination of relief. § 3626(b)(1).
15
However, private settlement agreements are not subject to the above restrictions if the terms of such an agreement are not subject to court enforcement other than the reinstatement of the civil proceeding. § 3626(c)(2)(A). A “private settlement agreement” is defined in the PLRA as “an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement settled.” § 3626(g)(6). In addition, the PLRA provides that a party to a private settlement agreement claiming that the agreement has been breached is not precluded “from seeking in State court any remedy available under State law.” § 3626(e)(2)(B).
By choosing to resolve their chain-gang claim through a private settlement, rather than through a judicially enforceable consent decree, the plaintiffs have attempted to avoid the PLRA’s stringent limitations with respect to the type and duration of the relief. The expense of their trade-off is the relinquishment of their right to challenge the constitutionality of the DOC’s practice of shackling inmates together. The agreement does not require judicial enforcement of its terms, but rather contemplates enforcement through mechanisms permitted by the PLRA: reinstatement of the action and state-court relief. Thus, the court does not need to decide whether the relief provided in the settlement agreement — complete and permanent cessation of the chain gang practice — comports with the PLRA’s prospective relief limitations.
B. Court Approval of the Settlement Agreement
Judicial policy favors voluntary settlement as the means of resolving class-action cases.
Cotton v. Hinton,
559 F.2d 1326, 1331 (5th Cir.1977).
16
However, “the settlement process is more susceptible than the adversarial process to certain types of abuse and, as a result, a court has a heavy, independent duty to ensure that the settlement is ‘fair, adequate, and reasonable.’ ”
Paradise
*1219
v. Wells,
686 F.Supp. 1442, 1444 (M.D.Ala.1988) (Thompson, J.) (quoting
Pettway v. American Cast Iron Pipe Co.,
576 F.2d 1157, 1214 (5th Cir.1978)). This abuse can occur when, for example, “the interests of the class lawyer and the class may diverge, or a majority of the class may wrongfully compromise, betray or ‘sell-out’ the interests of the minority.’ ”
Id.
Besides evaluating the fairness of the settlement agreement, the court also has the duty to make sure that the settlement is not illegal or against public policy.
Piambino v. Bailey,
757 F.2d 1112, 1119 (11th Cir.1985).
Before resolving these concerns, the court must ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. As required by Rule 23(e) of the Federal Rules of Civil Procedure, the Magistrate Judge ordered the parties to provide notice of the settlement of the chain-gang issue to the putative class of plaintiffs. This court-approved notice was posted on community bulletin boards in every dormitory in every prison, as well as in the law libraries and dining areas of each facility; it was also sent to county jails so as to facilitate notice to state inmates who were potential class members.
17
The notice informed inmates about the nature of the settlement, the advantages and disadvantages of the terms of the agreement, the right to file an objection to the settlement, as well as forms for filing such objections.
18
A fairness hearing was held on August 2,1996, and a total 154 objections to the agreement were filed by members of the putative class of plaintiffs.
The notice was adequate to inform all the interested parties about the provisions of the settlement of the chain-gang claim. The fairness hearings and opportunity for written objections were adequate to solicit and determine the views of the class members. In sum, the notice and fairness hearings were sufficient under Rule 23(e).
1. Whether the Settlement Is Fair, Adequate, and Reasonable
The factors the court may examine in deciding whether a settlement is fair, adequate, and reasonable are as follows: (1) the views of the class members; (2) the views of the class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6)the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery.
Shuford v. Alabama State Bd. of Educ.,
897 F.Supp. 1535, 1548 (M.D.Ala.1995) (Thompson, J.) (citing
Leverso v. SouthTrust Bank of Al., Nat. Assoc.,
18 F.3d 1527 , 1530 n. 6 (11th Cir.1994);
Bennett v. Behring Corp.,
737 F.2d 982, 986 (11th Cir.1984)).
a. Views ofthe Class Members
In determining whether a settlement agreement is fair, adequate, and reasonable, the obvious first place a court should look is to the views of the class itself.
Shuford,
897 F.Supp. at 1548 . As stated above, notice was given to the class and 154 objections were filed in opposition to the settlement agreement. The Magistrate Judge categorized these objections in the following manner: the responses of 56 inmates did not constitute objections;
19
50 inmates objected on the basis that they were still being chained individually and the lawsuit should have covered that circumstance; three wanted a declaration that the chain gangs were unconstitutional; 14 wanted money damages; eleven wanted further relief not included in the complaint and beyond the court’s power
{e.g.,
early release, parole, etc.); 17 inmates thought the settlement should have included other claims, such as the hitching-post and
*1220
the toilet-facilities claims; and three objections discussed gender and other classification issues.
20
The Magistrate Judge also conducted a fairness hearing on August 2, 1996, in which named plaintiffs Michael Austin and Ogie Hayes, and putative class members Douglas Crouch, Domineke Taylor, Terrance Roberts, Curtis Boggs, and Lorenzo Johnson, all five of whom had filed objections to the settlement agreement, testified for the plaintiffs. Austin and Hayes both testified that they approved the terms of the settlement agreement, and that they had not received any benefit, reward, or promise of reward in exchange for their approval of the agreement.
Based on a review of the objections and the testimony given at the fairness hearing, it appears that the majority of inmates who objected to the settlement agreement did so based on a misunderstanding of the terms of the agreement, rather than based on unfairness. Hayes testified that although he agreed with the terms of the settlement, many inmates with whom he discussed the lawsuit thought the agreement was a “sellout” because it failed to encompass the DOC’s practice of shackling inmates individually while on work detail. Indeed, 50 inmates based their objections specifically on this perceived deficiency of the settlement. It is entirely understandable that some inmates would object to the settlement agreement or view it as a “sell-out” because of the agreement’s failure to cover the DOC’s practice of individually shackling inmates while on work detail. After all, under the terms of the agreement the DOC may send inmates to work detail on public highways, and may use chains, albeit on an individual basis, to prevent the inmates from escaping. Assuming the objecting inmates believed this class-action litigation was designed to end the entire practice of chaining inmates while on work detail, whether the chains be used for individual or group purposes, the terms of the settlement might strike them as a somewhat of a disappointment, or a “sell-out.” However, as both Hayes and Austin acknowledged in the fairness hearing, the plaintiffs did not challenge the DOC’s use of individual chains for inmates, but rather the specific practice of shackling five men together. Three of the inmates who testified at the fairness hearing and who objected on this basis (Taylor, Roberts, and Buggs) approved the terms of the settlement after the plaintiffs’ attorney and the Magistrate Judge informed them that the settlement agreement did not state that the plaintiffs agreed that the DOC could shackle inmates individually, and that the inmates were free to challenge this practice in the future.
21
Although the court has characterized this objection as a “misunderstanding” of the terms of the settlement agreement and of the underlying claim of the lawsuit, the objecting inmates do raise an important issue regarding the adequacy of the settlement agreement: whether the agreement is adequate with regard to the psychological injury claim raised in the second part of the plaintiffs’ eighth- and fourteenth-amendment challenge to the use of chain gangs. Prior to reaching a settlement with the DOC Commissioner, the plaintiffs submitted to this court dozens of affidavits of inmates who had served time on chain gangs in various Alabama penal institutions. These affidavits reported the nature of the physical and psychological pain suffered by inmates placed on the DOC chain gangs. The psychological injuries, particularly those caused by being forced to wear the chains in public, were described as follows:
“People photographed and waved and honked at me and the other inmates. This was humiliating. Looking down at my feet and seeing the chains around them, I felt like a slave. Wearing the chains publicly was still more humiliating.”
22
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“The chain gang tore me apart mentally. I was chained up in public view. My family, Mends and potential employers could all see me in chains — a fact which hurt and embarrassed me deeply.”
23
“The chain gangs have caused me extreme mental anguish. Wearing chains made me feel like an animal. Being paraded along the Alabama highways, moreover, made me feel like I was for sale — for public consumption.”
24
“My chain gang sentence has caused me extreme mental anguish. Being forced to wear chains was humiliating. The experience also reminded me of the slavery that my ancestors had to endure.... Although I have been out of chains for months, I cannot stop their image from running through my mind. I dream about the chains frequently. I often wake up two or three times in the night screaming and in a cold sweat. Every time I see my ankles, I picture the chains around them.”
25
Based on these statements, it is arguable that the inmates’ alleged psychological injuries were not solely derived from the DOC’s practice of chaining inmates together, but from the mere fact of being chained throughout the day and placed in public view. The settlement agreement, which states that the DOC will adopt the practice of individually shackling inmates, leaves the DOC with plenty of room to continue practices that have allegedly inflicted psychological harm on the inmates. This drawback, however, must be balanced with the substantial benefits the plaintiff class derives from the settlement agreement, along with the fact that the agreement does not preclude future challenges to the DOC’s use of chains on individual inmates on work detail.
The second area involving a misunderstanding of the terms of the settlement agreement concerned the lack of award of monetary damages. Crouch’s testimony at the fairness hearing typified this objection: Crouch stated that he wanted a clarification on the monetary and punitive damages, and wanted to know why the putative class of plaintiffs had not received these damages in the lawsuit. However, after the plaintiffs’ attorney and the Magistrate Judge explained to Crouch that the plaintiffs did not seek damages in their lawsuit and individual inmates would be able to pursue claims for monetary damages in addition to the settlement, Crouch stated that he approved the terms of the settlement. Again, this set of objections must be balanced against the substantial benefits the plaintiffs will derive from the settlement agreement, as well as with the fact that inmates such as Crouch and the other 13 objectors are permitted to file or maintain their actions for monetary damages stemming from injuries while serving time on the chain gangs. ■
These two sets of objections together constitute 64 of the 98 objections filed with the court that actually stated an objection to the settlement agreement, or 65% of such objections. Of the remaining objections, only those concerning the constitutionality of the chain gangs warrant this court’s attention in an examination of the fairness and adequacy of the settlement agreement.
26
One of the trade-offs the plaintiffs have made in settling their chain-gang claim is to forgo the possibility that this court would find the practice of shackling inmates together cruel and unusual punishment in violation of the eighth and fourteenth amendments. Although such a holding would arguably have limited duration, given the relevant provisions of the PLRA discussed above, such a decision would also have precedential value if future challenges to the practice were brought. On the other hand, by settling the chain-gang claim, the plaintiffs have avoided the significant risk of losing their constitutional chal
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lenge to the chain-gang practice. These considerations all must be included in the court’s appraisal of the agreement.
b. Views of Class Counsel
The judgment of class counsel is also important in addressing the fairness, adequacy, and reasonableness of a settlement agreement.
Pettway,
576 F.2d at 1215 . Class counsel for the plaintiffs are experienced civil rights lawyers who have shown to the court, through their participation and continued monitoring in this case, an enduring commitment to protecting the rights of the plaintiff class. Further, class counsel have agreed to waive attorneys’ fees with regard to the chain-gang claim, thus alleviating any doubts about their dedication to the plaintiff class.
Id.
(court should be sensitive to potential conflict between class and its attorneys, particularly where large attorneys’ fees may also be at stake). Class counsel have argued that the proposed settlement is fair, adequate and reasonable, and have thoroughly explained the benefits the settlement agreement provides, specifically in terms of the longevity of the agreement, and the court gives considerable weight to their views.
c.
Substance and Amount of Opposition to the Settlement Agreement
It is difficult for the court to gauge the size of the putative class of plaintiffs involved in this litigation. The Magistrate Judge has estimated the class size at different times as numbering 2,000 or 4,000.
27
The Magistrate Judge also noted that because “the population of state inmates is ever-changing, and the function of the institutions involved suggests] a perpetual life,” the class of plaintiffs involved in the chain-gang claim is potentially infinite.
28
In their amended motion for class certification, the plaintiffs sought to certify two classes for purposes of the litigation, the first consisting of “all present and future Alabama inmates who have been or may be assigned to work in chain gangs.”
29
According to the plaintiffs, at the time of the filing of their motion, there were 700 inmates on Alabama chain gangs, and approximately 2,000 inmates had completed sentences on the chain gang. The DOC Commissioner has not contested the plaintiffs’ allegations concerning the number of inmates who have been, are, or will be assigned to the chain gang.
30
Even with these difficulties in estimation, the court can say with reasonable certainty that the 154 objections filed by the members of the putative class represent a small percentage of the class as a whole.
31
In resolving objections within the class to a settlement agreement, this court has previously noted that “where the settlement provides for structural changes with each class member’s interest in the adequacy of the change being substantially the same, and where there are no conflicts of interests among class members or among definable groups within the class, then the decision to approve the settlement ‘may appropriately be described as an intrinsically “class” decision in which majority sentiments should be given great weight.’ ”
Paradise v. Wells,
686 F.Supp. at 1445 (quoting
Pettway,
576 F.2d at 1217 ). Here, where the number of objections to the settlement agreement is relatively small, and where the concerns voiced in those objections, particularly the concerns related to monetary damages and challenges to the DOC’s practice of individually shackling inmates on work detail, are capable of being remedied outside or in addition to the settlement agreement, the court is confident in giving credence to the class majority’s approval of the agreement.
This conclusion does not imply, however, that the court has interpreted the silence of the remaining class members to represent
*1223
agreement with the settlement. As the court previously noted in
Reynolds v. King,
“the court must look beyond the numbers to the total reality of the circumstances presented and from those circumstances attempt to extrapolate some picture of the true support for the proposed decree.” 790 F.Supp. 1101, 1109 (M.D.Ala.1990) (Thompson, J.) (declining to approve consent decree despite the overwhelming majority of class members who did not file objections to the decree). The court is especially wary of such silence in the context of prison litigation where the members of the class are likely to have lower literacy levels, as well as limited access to materials to enable them to file an objections.
See generally Johnson v. Avery,
393 U.S. 483, 487 , 89 S.Ct. 747, 750 , 21 L.Ed.2d 718 (1969) (“Jails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.”). The court has therefore taken pains to examine the objections that were raised to determine whether the agreement is fair, adequate, and reasonable.
d. Existence of Collusion
There has been no charge that the agreement was the product of collusion between the parties. There is no evidence that counsel or the named plaintiffs will benefit from the agreement at the expense of members of the class or sub-class: the settlement agreement specifically states that the plaintiffs have waived their right to fees and costs related to their chain-gang claim, and Austin and Hayes both testified that they had received no reward or promise of reward in exchange for agreeing to settle their claim. Further, there is no evidence that the parties’ negotiations were anything other than at arms length.
e. Other Factors
The four remaining factors are interrelated: the stage of the proceedings; the likelihood of success at trial; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery. The issues presented in these two claims are particularly complex and would have required a contentious trial with considerable expense. Indeed, the parties and the Magistrate Judge estimated that trial on the chain-gang and toilet-facilities claims would have doubled the length of the trial, as well as created a much more voluminous record requiring the court to expend an even greater time considering the claims.
In light of the above considerations, the court has independently evaluated the fairness, adequacy, and reasonableness of the proposed settlement. Here, the plaintiffs have traded the risk of losing a protracted litigation, combined with the limited duration of any success under the PLRA, with the assurance that the DOC will cease the practice the plaintiffs contested in their original complaint. A major drawback to the agreement, as recognized by the court and the objecting inmates, is that the DOC will be able to maintain a “chain gang” policy by shackling inmates on an individual basis. However, there is no evidence provided to the court that the named plaintiffs and their counsel have failed to pursue their claim as consideration for the DOC’s agreement to cease the practice of shackling inmates together. Indeed, the named plaintiffs did not even include the individual-chain practice in their complaint or any of their amended complaints. Further, the court is satisfied that should an inmate wish to challenge the DOC’s practice with regard to the use of individual chains at work sites, the settlement agreement does not preclude such an inmate from doing so. A settlement implicitly means settling for less than all that is sought; it is “a reasoned choice of a certainty over a gamble, the certainty being the settlement and the gamble being the risk that comes with going to trial.”
Paradise,
686 F.Supp. at 1446 . Here, the settlement agreement gives the plaintiffs more relief than they could have obtained by pursuing their claims in court in terms of longevity, and leaves open the possibility for future challenges to the DOC’s use of individual chains. With one exception, discussed below, the court approves the terms of the settlement agreement.
The settlement agreement provides that the plaintiffs’ eighth-amendment challenge will be dismissed with prejudice. As
*1224
the Magistrate Judge correctly noted, this provision substantially curtails one of the agreement’s stated remedies for breach: that the plaintiffs may reinstate their challenge in federal court. “[A] stipulation of dismissal with prejudice ... at any stage of a judicial proceeding, normally constitutes a final judgment on the merits which bars a later suit on the same cause of action.”
Citibank, N.A. v. Data Lease Fin. Corp.,
904 F.2d 1498 , 1501-02 (11th Cir.1990) (citation omitted). So as to fully protect the rights of members of the putative class to enforce this agreement, the court will approve the settlement with the modification that the chain-gang claim be dismissed
without
prejudice.
32
2. Whether the Agreement Is Legal and Good Public Policy
The court has already discussed whether the settlement .agreement complies with the PLRA, and has concluded that it does. None of the interested parties has contested the legality of the settlement agreement and, with the exception of the provision dismissing the case with prejudice, the court does not find any cause to contest the agreement’s legality.
The court also finds that the agreement is good public policy. The putative class of plaintiffs articulated legitimate safety concerns relating to the DOC’s practice of chaining inmates together, and the agreement, if enforced, will obviate the vast majority of those concerns. What the agreement does not eliminate, particularly the risk of psychological injury, it also does not preclude from resolution. Thus, the court is satisfied that any deficiencies contained in the settlement agreement can be remedied in the future, if necessary, through future challenges. With the modification discussed above, the court therefore approves the settlement agreement between the parties.
3. Class Certification
In settling the chain-gang claim, the DOC Commissioner agreed to withdraw his opposition to the plaintiffs’ motion for class certification only as it pertained to the chain-gang claim. Accordingly, this court has continually referred to the plaintiffs as a putative class when discussing the fairness of the settlement agreement. However, the Supreme Court has indicated, in somewhat different circumstances, that in approving a settlement agreement in a class-action litigation, a federal court must also ensure that the settling class meets the class-certification criteria of Rule 23 of the Federal Rules of Civil Procedure.
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 ,-, 117 S.Ct. 2231, 2248 , 138 L.Ed.2d 689 (1997). As the Court noted in
Amchem,
the “proposed settlement classes sometimes warrant more, not less caution on the question of certification.” — U.S. at -- n. 16, 117 S.Ct. at 2249 n. 16. Although the Supreme Court in
Amchem
was dealing with a settlement class “opting-out” of litigation, the Court’s statement, that “Federal courts ... lack authority to substitute for Rule 23’s certification criteria a standard never adopted — that if a settlement is ‘fair,’ then certification is proper,” applies to the facts at hand with equal force. Thus, the fairness of the agreement is irrelevant if the 'court finds the plaintiffs fail to meet the criteria for class certification.
In their complaint, the plaintiffs requested certification of a class of “all present and future Alabama inmates who have been or may be assigned to work in chain gangs.” Rule 23(a) of the Federal Rules of Civil Procedure sets forth the following prerequisites for class certification:
“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”
*1225
As stated above, the exact size of the class is difficult to estimate given the fluctuations of the prison population, as well as the number of inmates who may be assigned to chain-gang labor in the future. However, having previously estimated the class size as numbering 2,700 inmates,
33
the court finds that the plaintiffs have clearly met Rule 23(a)(l)’s numerosity requirement. The second and third requirements of commonality and typicality are also clearly met. Here, the named plaintiffs have sought declaratory and injunc-tive relief in their challenge to the DOC’s practice of shackling five inmates together. The named plaintiffs, like many other members in the putative class, have been assigned to the chain gang in the past and could potentially be reassigned to the chain gang in the future; moreover, the requested declaratory and injunctive relief would inure to the benefit of all members of the putative class.
34
Though there certainly may be some factual differences between the individual class members and the nature and severity of their treatment on the chain gang, such individual differences do not defeat certification because there is no requirement that every class member be affected by the institutional practice or condition in the same way.
See, e.g., Appleyard v. Wallace,
754 F.2d 955, 958 (11th Cir.1985) (typicality not defeated by the varying fact patterns and varying degrees of injury underlying each class).
The fourth requirement, adequacy of representation, has also been met. In determining this issue, the court must inquire into “the adequacy of both the named representative and class counsel.” 5 James Wm. Moore et al., Moore’s Federal Practice § 23.25[3][a] at 23-113. “The determination that a party would adequately protect the interest of a class is factual and depends on the circumstances of each case.”
Eastland v. Tennessee Valley Auth.,
704 F.2d 613, 618 (11th Cir.1983). Here, the court finds, based on the record before it, that Austin, Hayes, Elliot, and Guess, have not only demonstrated their commitment to this litigation, but have also demonstrated to the Magistrate Judge a “cooperative spirit” toward their attorneys.
35
The court is also satisfied with the adequacy of their counsel, which is an institutional public interest advocacy group that has experience in handling class-action suits.
Besides meeting the prerequisites of Rule 23(a), the putative class must also meet one of the types of actions described in Rule 23(b). Rule 23(b)(2) requires the court to be satisfied that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where only injunctive and declaratory relief are sought.
See, e.g., Pugh v. Locke,
406 F.Supp. 318 (M.D.Ala.1976),
aff'd sub nom. Newman v. Alabama,
559 F.2d 283 (5th Cir.1977),
cert. denied,
438 U.S. 915 , 98 S.Ct. 3144 , 57 L.Ed.2d 1160 (1978). The court is therefore satisfied that the requirements of Rule 23 have been met and certifies the class of plaintiffs for the purposes of the chain-gang settlement agreement.
III. SETTLEMENT OF TOILET-FACILITIES CLAIM
The plaintiffs first raised their allegations concerning the adequacy of toilet facilities for chain-gang inmates in their first amended complaint.
36
There, and in their subsequent amended complaints, the plaintiffs claimed that the only toilet facility provided to inmates assigned to chain-gang labor was a “portable chamber pot behind a make-shift screen next to the road.”
37
The plaintiffs charged that the DOC did not pro
*1226
vide inmates with toilet paper or with facilities for them to wash their hands after using the chamber pot and before eating lunch. They also stated that because the chamber pot was not always available, inmates were often forced to squat on the ground and to defecate in public. Either with or without the chamber pot arrangement, the prisoners were forced to relieve themselves while chained to the other inmates, which severely compromised their privacy.
38
.The plaintiffs contend that these practices created unsanitary conditions and deprived them of their basic human dignity; they also claim that the prison officials’ deliberate indifference to these conditions resulted in the infliction of cruel and unusual punishment upon them in violation of the eighth and fourteenth amendments.
39
The class members challenging the adequacy of the toilet facilities are identical to the class certified for the chain-gang settlement, discussed supra;
40
thus, the court does not need to repeat the settlement class inquiry here.
After resolving the chain-gang claim through a settlement agreement, the parties were able to reach a second agreement on the toilet-facilities claim.
41
Recognizing that some of the plaintiffs’ concerns had been remedied by the cessation of chaining inmates together, specifically the inmates’ lack of privacy in the use of the toilet facilities, the parties agreed that the DOC would promulgate a standard operating procedure, which would apply to all outside work squads supervised by the DOC. This standard operating procedure would include the following provisions: soap, water, and toilet paper will be provided to all inmates; there will be one portable toilet for every squad of 40 inmates; the portable toilet will be equipped with a heavyweight canvas screen; for medium custody inmates who labor on prison grounds (as opposed to those inmates who labor on public highways), and for whom no toilet facilities are available, reasonable efforts will be made to allow privacy for those who need to relieve themselves; and a shovel or other instrument will be provided to such medium security inmates for the purpose of digging a hole when an inmate must defecate and no toilet facility is available.
42
The agreement also states that within four to eight months after the court approves the settlement, the Commissioner will conduct an unannounced inspection of these toilet facilities, and will take any corrective action necessary to ensure compliance with the standard operating procedure. The results of such inspections, as well as any corrective measures, will be reported to the plaintiffs’ counsel. The plaintiffs also agreed to dismiss their claim against the Commissioner without prejudice, and to waive their right to seek fees and costs.
The parties filed a joint motion for preliminary approval of the settlement agreement and attached a proposed order that set out the procedures for giving notice to the class, as well as the form of the notice itself.
43
However, the Magistrate Judge did not sign this order, and a search of the record reveals no further instructions regarding the notice to the class or a fairness hearing. Although the court concludes that the settlement agreement is legal and is not against public policy,
see Piambino v. Bailey,
757 F.2d 1112, 1119 (11th Cir.1985), the court is unable to evaluate the underlying fairness of the agreement without obtaining the views of the members of the class. The court will therefore enter an additional order instructing the parties to give the members of the class notice of the settlement agreement, and to review any objections members of the class
*1227
may have to the agreement. Following this process, the court will conduct a fairness hearing.
IV. CLASS CERTIFICATION AS TO REMAINING CLAIMS
Before addressing the two remaining claims in the litigation- — the visitation policy for those inmates assigned to the “Alternative Thinking Unit” (ATU) and the use of the hitching post — the court will address whether the putative class meets the class certification requirements set out in Rule 23, and if so, how many classes should be certified. The Magistrate Judge found that two classes of inmates should be certified: (1) present and future Alabama inmates who have been or may be assigned to work in chain gangs; and (2) present and future Alabama inmates who have been or may be placed on the hitching post.
44
The court agrees that two classes should be certified pursuant to Rule 23. However, for the reasons that follow, the court will redefine the first class to include only those present and future Alabama inmates who have been or may be assigned to the ATU, a shock incarceration program in Alabama’s penal system.
As stated, the plaintiffs originally filed this lawsuit to challenge the DOC’s use of chain gangs.
45
Two days later, the plaintiffs amended their complaint to include allegations that inmates “who refuse to go out on the chain gang are tied to a post with their hands handcuffed above their heads and are forced to stand on an uneven surface in an open-air cell all day in the hot sun.”
46
The plaintiffs later moved to amend their complaint to allege that the DOC’s use of the “hitching post,” the restraining bar to which the inmates who refuse to work are handcuffed, violates the eighth and fourteenth amendments.
47
The hitching post is a horizontal bar “made of sturdy, nonflexible material,” located on the prison grounds, and positioned “no more than 50 feet from an officer.”
48
According to the DOC’s regulations, an inmate will be placed upon the hitching post either for refusing to work or otherwise disrupting a work squad.
49
Thus, the use of the hitching post applies to all inmates who are assigned work duties in prison, whether these duties include labor in chain gangs or other forms of work.
50
By contrast, the plaintiffs’ claim regarding visitation privileges affects a smaller group of inmates. The plaintiffs first raised their visitation-privileges claim in their revised second amended complaint.
51
There, they stated that “Chain gang inmates are denied any visitation for the entire length of their stay on the chain gang.”
52
The plaintiffs claim that this practice “violates their right to freedom of association under the First and Fourteenth Amendments to the
*1228
United States Constitution.”
53
The plaintiffs’ allegations imply that every inmate assigned to chain-gang labor is denied visitation-. However, during oral argument before this court on the DOC Commissioner’s objections to the Magistrate Judge’s recommendation, the parties made clear that not all inmates assigned to chain-gang labor were placed in the ATU, and only ATU inmates were denied visitation for the entire period of their placement within the unit, or 90 days.
54
Thus, the issue is whether all present and future inmates who are assigned to the ATU and all present and future inmates who are denied visitation privileges for 90 days should be certified as two separate classes. Although the plaintiffs requested class certification in a slightly different form, this court is permitted under Rule 23(c)(4) of the Federal Rules of Civil Procedure to shape class definition so as to limit the class to the claims raised.
55
“Rule 23(e)(4) empowers courts to define an appropriate class, whether by accepting the proposed class, limiting the class to certain issues, or creating subclasses. Thus, a complaint’s proposed class definition does not bind the court, and Rule 23(c)(4) provides [the court] with some latitude in redefining the class.” 5 James Wm. Moore et al., Moore’s Federal Practice § 23.05[3] (3d ed.1997).
Having established the parameters of these two classes, the court will next determine whether they satisfy the elements of Rule 23 of the Federal Civil Rules of Procedure. In order to represent a class of allegedly similarly-situated individuals, the proposed named plaintiffs must demonstrate that “(1) the class is so numerous that join-der of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a).
Here, Rule 23(a)(l)’s requirement of nu-merosity has clearly been satisfied for both classes. The Magistrate Judge noted that neither the plaintiffs nor the DOC Commissioner presented evidence reflecting the number of inmates who have been placed on the hitching post since 1993, but that the Commissioner’s trial exhibits, “which do not purport to reflect the totality of those inmates,” indicate that over 200 inmates have been placed on the hitching post.
56
This evidence, combined with the fact that any inmate assigned to work duty is eligible for placement on the hitching post, and that the number of the inmates placed on the hitching post has increased constantly during this litigation,
57
renders the class so numerous so as to make joinder impracticable. With regard to the number of inmates assigned to the ATU, it is likewise difficult for the court to pinpoint an exact number based on the evidence before it. The Magistrate Judge stated that “well over 2,000 inmates have been assigned to the chain gang and have had their visitation rights suspended for the time that they served on it.”
58
As discussed above, it appears that not all inmates assigned to chain-gang labor were in the ATU; some were placed on the chain gang for disciplinary violations. However, even as
*1229
suming that some percentage of inmates placed on the chain gang were not assigned to the ATU, it is clear that the number of inmates placed in the ATU, or who are eligible for placement in the ATU, or who have been placed in the ATU during the course of this litigation, is sufficient to meet Rule 23(a)’s numerosity requirement.
See Bradley v. Harrelson,
151 F.R.D. 422, 426 (M.D.Ala.1993) (Albritton, J.) (The “commonsense approach” to class certification “has led courts to certify classes in cases ... which involve issues of common concern to inmates even when the potential class size is ... somewhat undefined.”) (citations omitted).
Rule 23(a)(2) and (3)’s requirements of commonality and typicality “tend to merge.”
Wyatt v. Poundstone,
169 F.R.D. 155, 164 (M.D.Ala.1995) (Thompson, J.) (citing
General Tel. Co. of Southwest v. Falcon,
457 U.S. 147 , 157 n. 13, 102 S.Ct. 2364 , 2370 n. 13, 72 L.Ed.2d 740 (1982)). “Both requirements serve to ensure that the ‘maintenance of a class action is economical’ and that the ‘named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.’”
Id.
However, there is no requirement that the named plaintiffs’ injuries be identical to those sustained by the class members; it is sufficient under Rule 23 that the harm complained of be common to the class.
Hassine v. Jeffes,
846 F.2d 169, 177 (3d Cir.1988). Thus, although inmates in the two classes may have had different experiences on the hitching post or when assigned to the ATU, the members of each class are bringing the same constitutional challenge to the same set of policies and procedures implemented by the DOC. Moreover, the named plaintiffs’ claims are identical to the class members’ claims. The Magistrate Judge found that when the case was filed, the named plaintiffs were assigned to chain-gang labor and were being denied visitation.
59
When they amended their complaint to include the hitehing-post claim, the plaintiffs added two named plaintiffs, Warren Leatherwood and Kervin Goodwin, both of whom had been placed on the hitching post.
60
The court therefore finds the claims of the named plaintiffs are common and typical of the class.
The court has already examined the issue of adequacy of representation in its discussion of class certification for purposes of the settlement agreement. The court reaffirms its findings that the class representatives and their counsel will adequately and diligently represent the class members’ interests. Thus, the plaintiffs have met all of Rule 23(a)’s requirements for class certification of the two classes.
In addition to the above four elements, the class must meet one of the three conditions stated in Rule 23(b) that make a class action the preferable mode of handling the lawsuit. The plaintiffs have sought certification under Rule 23(b)(2), which states “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Here, the plaintiffs have brought a constitutional challenge to published policies and procedures, as well as the Commissioner’s means of implementing such policies and procedures. The plaintiffs seek only injunctive and declaratory relief regarding these policies and procedures. As stated in the court’s discussion regarding class certification for purposes of the settlement agreement
supra,
class certification under Rule 23(b)(2) is particularly appropriate in the prison litigation context where only injunctive and declaratory relief are sought.
See, e.g., Pugh v. Locke,
406 F.Supp. 318 (M.D.Ala.1976),
aff'd sub nom, Newman v. Alabama,
559 F.2d 283 (5th Cir.1977),
cert. denied,
438 U.S. 915 , 98 S.Ct. 3144 , 57 L.Ed.2d 1160 (1978).
The court finds that the requirements of Rule 23 have been met and will certify the following two classes of plaintiffs:
(1) A class defined as all present and future Alabama inmates who have been or may be assigned to the ATU.
*1230
(2)A class defined as all present and future Alabama inmates who have been or may be placed on the hitching post.
V. VISITATION-PRIVILEGES CLAIM
The plaintiffs’ first claim concerns the DOC’s visitation policy for those inmates assigned to the ATU. The ATU, briefly described above as a shock incarceration program, is designed for repeat offenders or recidivists, and parole violators. Prisoners are placed in the ATU either by DOC classification, if they are a repeat offender or have violated a term of parole, or by an Alabama trial court judge during sentencing. According to the Commissioner, “The entire purpose of the ATU unit is oriented around creating a respect for authority, instilling self-discipline....”
61
Inmates assigned to the ATU are segregated from the general inmate population and are placed in a separate ATU dormitory, also referred to as the “chain gang dormitory.”
62
The ATU inmates are assigned to at least eight hours of physical labor per day.
63
All visitation is denied to ATU inmates for 90 days, although at the time the visitation claim was filed, visitation to ATU inmates was generally denied for 180 days.
64
In contrast, inmates assigned to the general prison population at Alabama prisons receive visitation on weekends.
65
As alternatives to visitation, ATU inmates may make collect phone calls and exchange written correspondence with outsiders.
66
According to the Commissioner’s expert witness, Alabama is the only state to implement a blanket, time-based denial of visitation policy.
67
As explained in further detail below, the plaintiffs contend that these alternatives to visitation are inadequate substitutes for visitation, and also claim that the 90-day denial of visitation violates their right to freedom of association. The Magistrate Judge agreed, and concluded that the DOC’s visitation policy for ATU inmates unreasonably impinged upon the plaintiffs’ first-amendment rights. The Commissioner has objected to the Magistrate Judge’s conclusion on the following grounds:
(1) Convicted felons retain no first-amendment right to freedom of association;
68
(2) The Magistrate Judge incorrectly concluded that the DOC Commissioner had not stated a clear objective for the denial of visitation;
69
(3) The Magistrate Judge erred in finding the visitation policy violated the plaintiffs’ first-amendment right because of lack of alternative means of expression;
70
(4) The Magistrate Judge erred in finding the DOC Commissioner’s exhibits concerning alternatives to visitation “irrelevant”;
71
(5) The Magistrate Judge erred in finding that permitting ATU inmates to have visitors would not burden the DOC;
72
and
(6) The Magistrate Judge’s conclusion that restrictions placed on ATU inmates, aside fi*om the denial of visitation policy, were sufficient to accomplish the prison administrators’ penological ob-
*1231
jeetives was erroneous and violates the degree of deference required by the Supreme Court.
73
As will be discussed further below, the court will sustain all but the DOC Commissioner’s first and fifth objections to the Magistrate Judge’s recommendation.
The court makes two preliminary remarks before addressing the plaintiffs’ constitutional claims. First, although the parties have stipulated that visitation is “generally denied” to ATU inmates for 90 days, it is not clear from the record that visitation is automatically restored after 90 days. Rather, the information provided to the inmates, as well as the representations made by the DOC Commissioner’s counsel and experts, indicates that the denial of visitation can be reinstated after the 90 days expires if an inmate has not “graduated” from the ATU program or is assigned to another term of the ATU.
74
The “orientation” to ATU inmates at Limestone Correctional Facility warns the inmates: “Behave, if you want another job and more privileges and the opportunity for programs. If you don’t behave, you could stay here indefinitely.”
75
According to Gary DeLand, the Commissioner’s expert, the denial of visitation serves as an incentive for inmates to behave while assigned to the ATU so as to “earn back” the visitation privilege:
“Certainly a prisoner who found ways to delay or manipulate the system and not make all of his work assignments would also know, perhaps, that the visiting might be if affected by that process to encourage a prisoner to get through that process and get off the chain gang at the appropriate time, and have his visiting restored to him, it would certainly seem a legitimate approach on the part of prison administrators.”
76
In addition, the Commissioner himself testified that he did not know whether visitation was automatically restored to inmates after 90 days, even though they had received a judicial sentence to the ATU for more than 90 days.
77
Although the record is somewhat unclear, the court will assume, for the sake of evaluating the plaintiffs’ constitutional claim, that visitation is automatically restored after 90 days, and will limit its holding to this understanding of the DOC’s policy.
Second, the court notes that the constitutional claim before it is very limited in nature: the plaintiffs have only brought a first-amendment claim; they have not challenged the DOC’s visitation policies under the eighth or fourteenth amendments, or pursuant to any other enumerated or unenumerated constitutional right. Nor does any party in this litigation seek to advance the rights of non-incareerated friends or family who may wish to visit those inmates placed in the ATU.
See Thornburgh v. Abbott,
490 U.S. 401, 407 , 109 S.Ct. 1874, 1878 , 104 L.Ed.2d 459 (1989) (“nor do [prison walls] bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.’ ”) (citations omitted). The court therefore does not address whether the ATU visitation policy is in violation of the eighth or fourteenth amendments, or other constitutional rights, or whether it violates the constitutional rights of those free individuals seeking visitation with ATU inmates.
A. Standard of Review
“Inmates clearly retain protections afforded by the First Amendment,”
O’Lone
*1232
v. Estate of Shabazz,
482 U.S. 342, 348 , 107 S.Ct. 2400, 2404 , 96 L.Ed.2d 282 (1987) (citations omitted), because “[pjrison walls do not form a barrier separating prison inmates from the protections of the Constitution.”
Turner v. Safley,
482 U.S. 78, 84 , 107 S.Ct. 2254, 2259 , 96 L.Ed.2d 64 (1987). However, the fact of incarceration, as well as the existence of valid penological objectives such as deterrence of crime, rehabilitation of prisoners, and institutional security, necessarily results in infringements of the rights and privileges retained by prisoners.
O’Lone,
482 U.S. at 348, 107 S.Ct. at 2404 (citing
Pell v. Procunier,
417 U.S. 817, 822-23 , 94 S.Ct. 2800, 2804 , 41 L.Ed.2d 495 (1974);
Procunier v. Martinez,
416 U.S. 396, 412 , 94 S.Ct. 1800, 1810-11 , 40 L.Ed.2d 224 (1974)). However, a restriction that interferes with an inmate’s constitutional right must be “reasonably related to legitimate penological interests.”
Turner,
482 U.S. at 79 , 107 S.Ct. at 2261 . The
Turner
Court established a four-prong inquiry for determining the constitutionality of a prison regulation:
(1) Whether a valid, rational connection between the prison regulation and the legitimate governmental interest exists;
(2) Whether there are alternative ways for the prisoner to exercise the implicated constitutional right;
(3) What impact would accommodation of the implicated constitutional right have on the prison administration; and
(4) Whether the regulation is an exaggerated response to prison concerns.
482 U.S. at 89-90,107 S.Ct. at 2261-62. The overarching principle in this test is a recognition that federal courts are “ill equipped to deal with the increasingly urgent problems of prison administration and reform,” and, accordingly (and especially when reviewing state penal system policies), should defer to the expertise of prison authorities.
Id.
at 85, 107 S.Ct. at 2259 (quoting
Procunier v. Martinez,
416 U.S. at 405 , 94 S.Ct. at 1807 .)
The Magistrate Judge applied the
Turner
test to the ATU visitation policy.
78
The Commissioner argues that
Turner
is inapplicable because prisoners retain no first-amendment right to visitation. Although the Supreme Court has not yet addressed this issue,
79
the Court has held that there is no due-process right to “unfettered visitation.”
Kentucky Dep’t of Corrections v. Thompson,
490 U.S. 454, 460 , 109 S.Ct. 1904, 1908 , 104 L.Ed.2d 506 (1989) (“it [cannot] seriously be contended, in light of our prior cases-that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause.”).
80
There is split authority in the federal courts on whether a first-amendment right to visitation exists.
Compare Bazzetta v. McGinnis,
902 F.Supp. 765, 770 (E.D.Mich.1995) (holding that no first-amendment right of association exists for prisoners),
aff'd,
124 F.3d 774 (6th Cir.1997),
opinion supplemented by,
133 F.3d 382 (6th Cir.) (clarifying that the issue before the court was only the constitutionality of restrictions on contact visits), cert. denied, - U.S. -, 118 S.Ct. 2371 , 141 L.Ed.2d 739 (1998);
White v. Keller,
438 F.Supp. 110, 115 (D.Md. 1977) (no first-amendment right of association for prisoners),
aff'd,
588 F.2d 913 (4th Cir.1978);
Thorne v. Jones,
765 F.2d 1270, 1274 (5th Cir.1985) (no first-amendment right to “mere physical association”),
with Robinson v. Palmer,
619 F.Supp. 344, 347 (D.D.C.1985) (noting the “varying results” courts have reached in determining whether inmates have a first-amendment right to visitation and assuming that such a right does
*1233
exist),
aff'd in relevant part,
841 F.2d 1151 , 1156 (D.C.Cir.1988);
Laaman v. Helgemoe,
437 F.Supp. 269, 322 (D.N.H.1977) (holding that a total denial of visitation would violate the three constitutional strictures of the inmates’ first-amendment right to familial association and communication and the eighth-amendment right to be free of cruel and unusual punishment).
The Eleventh Circuit Court of Appeals has recognized that there is no “absolute” right to visitation, but that the mechanics of visitation are subject to the discretion of prison authorities implementing legitimate penological objectives.
Caraballo-Sandoval v. Honsted,
35 F.3d 521, 525 (11th Cir.1994) (“[A]s to the First Amendment [right to freedom-of-association] claim, inmates do not have an absolute right to visitation, such privileges being subject to the prison authorities’ discretion provided that the visitation policies meet legitimate penological objectives.”). The court will infer from the language used in
Caraballo-Sandoval
that the Eleventh Circuit has recognized that inmates retain some constitutional right to visitation, although that right may be curtailed by prison administrators, and that the
Turner
four-prong inquiry is the appropriate standard to review the limitation placed on the constitutional right.
81
The court therefore finds that the Magistrate Judge was correct in applying the
Turner
test to the visitation policy at issue here and overrules the Commissioner’s first objection. The court will proceed to examine the Magistrate Judge’s application of the
Turner
test to determine if the plaintiffs’ constitutional rights have been violated.
B. Valid, Rational Connection to Legitimate Governmental Interests
“[A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.”
Turner,
482 U.S. at 89-90 , 107 S.Ct. at 2262 . In addition, the governmental objective must be “a legitimate and neutral one.”
Id.
In discussing this first factor of the
Turner
analysis, the Magistrate Judge found that the Commissioner failed to articulate a legitimate penological interest served by denying visitation privileges to ATU inmates.
82
The Commissioner objects to the Magistrate Judge’s conclusion, and argues that the DOC has advanced several reasons in support of the visitation policy.
Examining the record, the court finds that the Commissioner, his predecessor, and the expert testifying on behalf of the DOC offered two distinct justifications for the denial of visitation policy. The former Commissioner of the DOC testified during his deposition that the purpose of the policy was to send a message to inmates about the nature of prison life, specifically that prison would not be a place where they would receive benefits or privileges. He also stated that the DOC had not consulted with any health professionals regarding the effect of such a policy on inmates. The former Commissioner testified as follows:
“Q. What is the purpose in denying the visitation?
“A. The same purpose in denying all privileges....
“Q. What is the purpose of denying the visitation?
“A. Because it’s a privilege.
“Q. But what is the purpose in taking away that privilege?
“A. All privileges for the same reason.
“Q. And what is the reason?
“A. To send a very clear message that as a repeat offender or a judicial entry, the prison system is not going to be, for you, an entitlement system, at least for a while.”
“Q. What do you mean when you say it’s not going to be an entitlement system?
“A. No benefits, no privileges.
*1234
“Q. Now, in taking away visitation, did you consult with any health professionals regarding the emotional and psychological effect that that can have on somebody?
“A. No.”
83
The Commissioner’s correctional expert testified that the severity of the environment of the ATU would likely have a “useful purpose”:
“Certainly the chain gang would be a less than pleasant assignment for most prisoners who would be on it, and if the State of Alabama would like to ensure that prisoners understand when they come back that the circumstances they will be in are such that it will require them some degree of discomfort, or some degree of loss of privilege that they will have to earn back, that that serves a useful purpose.”
84
Although the expert did not explicitly state what “useful purpose” the policy served, the court can infer from his remarks, as well as those of the former Commissioner, that the primary purpose of the policy is to make prison conditions as austere as possible so as to deter inmates from committing future crimes or to violate the conditions of their parole. The DOC Commissioner offered a second objective served by the policy: to remove distractions from the inmates while they were participating in a program designed to teach respect for authority and to instill self-discipline. The Commissioner stated, “the individual [needs] to concentrate solely on those things and does not need outside distractions while that period is going on.”
85
Thus, the court finds that two separate objectives are advanced by the visitation policy: one, to create an extremely austere environment, so as to increase deterrence; and, two, to remove distractions from inmates so as to increase rehabilitation. The only evidence the Commissioner provided in support of the policy was the testimony of the plaintiffs’ witness, Gary Montgomery. According to the Commissioner, Montgomery “testified that being placed in the ATU will help him- not return to prison.”
86
However, Montgomery’s testimony went to his experience with the ATU program as a whole, and not specifically to the visitation policy at issue here. When asked about this distinction, Montgomery stated, “Just the experience of prison itself will keep me from going back to prison.”
87
Thus, the plaintiffs contend that the DOC Commissioner did not produce any evidence showing that the denial of visitation furthers the stated penological interests.
88
At oral argument, they emphasized that the “reasonableness standard is not toothless,”
89
Thornburgh v. Abbott,
490 U.S. 401, 414 , 109 S.Ct. 1874, 1883 , 104 L.Ed.2d 459 (1989), and cited the Ninth Circuit Court of Appeals for the following proposition:
“Prison authorities cannot rely on general or conclusory assertions to support their policies. Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is required as to each point.”
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Walker v. Sumner,
917 F.2d 382, 386 (9th Cir.1990). The plaintiffs bolstered their argument by citing a Seventh Circuit Court of Appeals decision in which the court recognized that prison officials “‘cannot avoid court scrutiny by reflexive, rote assertions.’ ”
Shimer v. Washington,
100 F.3d 506, 509-510 (7th Cir.1996) (quoting
Williams v. Lane,
851 F.2d 867, 886 (7th Cir.1988) (Flaum, J. concurring)). The plaintiffs argue that the Commissioner’s failure to produce any evidence showing the relationship between his stated penological interests and the regulation denying visitation is critical because the court “ ‘must look to see whether the prison’s visitation practices actually further [his stated] objectives.’ ”
90
The Eleventh Circuit Court of Appeals has not identified whether prison officials, when defending challenges to regulations, are required to meet the same rigorous evidentiary burden required by the Ninth Circuit. However, an examination of the Eleventh Circuit’s law pertaining to first-amendment freedom-of-expression challenges is instructive on this issue. In a first-amendment challenge to a restriction of speech in a public forum, the Eleventh Circuit recently held that when demonstrating the significance of a government interest, officials “are not required to present detailed evidence,” rather officials are “‘entitled to advance [the governmental] interests by arguments based on appeals to
common sense and logic.’
”
International Caucus of Labor Committees v. City of Montgomery,
111 F.3d 1548, 1551 (11th Cir.1997) (emphasis added) (quoting
Multimedia Pub. v. Greenville-Spartanburg Airport,
991 F.2d 154 , 161 (4th Cir.1993)). Because of the great deference that the Eleventh Circuit has granted the government when defending first-amendment challenges in public fora, this court believes that the rigorous evidentiary burden articulated by the Ninth Circuit would not be required by the Eleventh Circuit when examining first-amendment challenges in a nonpublic forum such as a prison.
91
Further, in addressing other first-amendment challenges to prison regulations, the Supreme Court has also applied a type of “common sense” analysis. The Court used this approach to strike down a regulation prohibiting inmates from marrying other inmates or civilians unless the superintendent of the prison found that there was a compelling reason for the marriage.
See Turner,
482 U.S. at 98 , 107 S.Ct. at 2266
(“Common sense
likewise suggests that there is no logical connection between the ... restriction and [stated penological objectives].”) (emphasis added). And, the Supreme Court has also held that prison officials do not have the burden of “show[ing] affirmatively” that the accommodation of an asserted constitutional right “would be ‘detrimental to proper peno-logical objectives.’ ”
Jones,
433 U.S. at 128, 97 S.Ct. at 2539 (finding that the prison’s ban on inmate union solicitation and group meetings was rationally related to reasonable prison administration objectives).
In light of the “common sense” approach adopted by the Eleventh Circuit in considering freedom-of-expression issues in public fora, as well as the Supreme Court’s use of “common sense” to evaluate the penological objectives of regulations impinging on constitutional rights, this court rejects the plaintiffs’ argument that the Commissioner’s failure to produce evidence demonstrating a valid, rational connection between their stated objectives and the denial of visitation policy necessarily results in a holding for the plaintiffs. Rather, the court will examine the evidence presented by
both
the plaintiffs and the Commissioner to determine whether the DOC’s policy is rationally related to its two objectives of rehabilitation and deterrence.
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As stated above, the only evidence provided by the Commissioner in support of the policy was the testimony of Gary Montgomery, which the court has deemed inconclusive. In contrast, the plaintiffs presented evidence in the form of expert testimony and penological literature to support their argument that the policy is not rationally related to a legitimate penological objective. The plaintiffs’ experts testified that visitation serves an important purpose in rehabilitating inmates and deterring future criminal conduct. One expert testified that “one of the most important factors in helping people stay out of prison is having supportive and positive relationships outside.”
92
Another expert stated, “Visiting is probably without question the most important activity that takes place in a prisoner’s life.... visiting is critically important and should not be curtailed except for specific violations of visiting regulations by the inmate.”
93
This expert also testified to some of the deleterious effects of denying visitation: “[I]t would generally bring about bitterness, unhappiness, resentment, and very often, unfortunately, retaliation, because that’s the only way that inmates sometimes feel that they can respond.”
94
Further, the expert noted that because the suicide rate for inmates is highest at the initial period of confinement, close contact with family members is necessary to assist the inmate in surviving the initial adjustment period.
95
The third expert to testify for the plaintiffs on the issue of visitation stated that he found the DOC’s policy to be “outrageous.” He added that he found “absolutely no reason not to let inmates maintain their social life and social relationships. They should have visits with their parents, with their siblings, with their spouse and children.”
96
In addition to the plaintiffs’ experts, the Commissioner testified that it was a fair statement that it is “generally believed among correctional commissioners throughout the country that you should not take visitation away unless it’s for a violation of prison rules.”
97
Finally, none of the parties’ experts could point to any research regarding the relationship between the denial of visitation and the Commissioner’s stated objectives.
98
The court is thus faced with conflicting policy rationales. On the one hand, there is a general consensus in the corrections field that visitation has a beneficial effect upon inmates. Common sense would dictate that because visitation is so important, it should not be denied but for compelling reasons, such as abuse of the privilege. On the other hand, the Commissioner’s argument that a temporary denial of this privilege supports rehabilitation and deterrence is also grounded in common sense. Denial of visitation privileges reduces, if not eliminates, outside distractions to the inmates, thereby aiding the rehabilitation process. Similarly, the loss of visitation privileges deters rational judicial entries from becoming recidivists and violating the conditions of their parole. ATU inmates know that if they become repeat offenders or parole violators, they will reenter the prison system in the austere conditions of the ATU, rather than in the general prison population. Further, although the plaintiffs’ experts may disagree with the Commissioner on the overall effect of the policy, none of the plaintiffs’ experts testified that the Commissioner would be unable to effectuate his objectives by implementing the policy.
Moreover, it is most important to keep in mind that the issue is only the temporary, and not permanent, elimination of visitation privileges. Indeed, throughout his prison stay, an inmate may, off and on, lose his visitation privileges for reasons unconnected to assignment to the ATU unit. If the court were confronted with a permanent elimination, or an elimination that extended significantly throughout a prisoner’s stay, the concerns raised by the plaintiffs’ experts — that
*1237
visitation serves an important purpose in rehabilitating inmates and deterring future criminal conduct — could present a question of constitutional breach. However, an inmate who successfully completes the ATU program can still enjoy the benefits of visitation during the remainder of his prison life.
Thus, this court concludes that the DOC’s denial of visitation privileges for ATU inmates passes the “common sense” test for its rational relationship to the legitimate peno-logical objectives of deterrence and rehabilitation; furthermore, the court cannot conclude that the connection between the policy and the Commissioner’s objectives is so remote to be considered “arbitrary or irrational.”
Turner,
482 U.S. at 89 , 107 S.Ct. at 2262 . The plaintiffs, and other specialists in the field of corrections, may disagree with the Commissioner’s policy, but without evi-. dence to support a finding that the policy lacks “common sense,” the court must defer to the expertise of the State’s prison administrators.
C. Alternative Means to Exercise the Right
The second factor of the
Turner
analysis asks whether alternative means of expressing the constitutional right remain open to the prisoners. 482 U.S. at 89-90, 107 S.Ct. at 2262. The Magistrate Judge rejected the alternatives proffered by the Commissioner that included mail and telephone communication. The Magistrate Judge found that the “alternatives to visitation which are fueled by literacy and ability to pay are counterfeit means of maintaining ties to family and deterring recidivism.”
99
The Commissioner objects to this finding.
100
In considering the alternative means, the court must view the asserted right “sensibly and expansively.”
Pope v. Hightower,
101 F.3d 1382, 1385 (11th Cir.1996). Here, the Commissioner contends that inmates are permitted to communicate with family and friends by sending and receiving mail, as well as by making telephone calls. In
Pope ,
the Eleventh Circuit considered an inmate’s challenge to a telephone-access policy that limited the number of persons an inmate could place on a calling list. Recognizing that visits and correspondence were alternatives to telephone calls, the court held that other avenues existed for exercising what the court defined as “the First Amendment right to communicate with family and friends.”
Id.
Because the plaintiffs are able to make such calls and to send and receive mail, the court finds that other avenues exist for ATU inmates to exercise their first-amendment right to freedom of association.
As stated, the Magistrate Judge reached a different conclusion. Based on the high illiteracy rate in inmate populations,
101
as well as the costliness of telephone calls made from the penal institutions,
102
the Magistrate Judge found that the alternatives were “counterfeit” means of permitting the inmates to maintain ties to family and to deter recidivism.
103
The court agrees with the Magistrate Judge that low reading ability and cost can interfere with ability of some inmates to communicate with friends or family. However, this assumed interference
104
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does not necessarily result in a finding that the alternatives are inadequate. In
Pell v. Procunier,
the Supreme Court upheld an institution’s prohibition of face-to-face meetings between inmates and the press, and rejected the plaintiffs’ argument that mail was an ineffective means of communication because some prisoners are illiterate or inarticulate. The Court stated: “Merely because such inmates may need assistance to utilize one of the alternative channels does not make it an ineffective alternative, unless, of course, the State prohibits the inmate from receiving such assistance.” 417 U.S. at 828 n. 5, 94 S.Ct. at 2807 n. 5.
The court’s conclusion should not be understood, however, to equate visitation with telephone calls or written communication. Certainly, there are some instances when mail and telephone communication will not be an adequate substitute for visitation, particularly when an inmate seeks to visit with friends or family who cannot read or speak, such as infants and small children. However, the court finds that this potential deprivation is slight due to the limited duration of the denial of visitation policy.
D. Impact of Asserted Right on Allocation of Prison Resources
The third factor in assessing the reasonableness of a regulation that impinges on an inmate’s constitutional rights asks what impact the accommodation of the asserted constitutional right will have upon guards and other inmates, and on the allocation of prison resources generally.
Turner,
482 U.S. at 89-90 , 107 S.Ct. at 2262 . The Magistrate Judge found that “[t]he accommodation that the plaintiffs’ seek ... cannot be viewed as costly to the defendant or as an undue infringement upon the due deference to which prison officials are entitled in administering their institutions.”
105
This court agrees with the Magistrate Judge’s finding. The Department of Corrections has an established visitation policy, and the burden of allowing ATU inmates to receive visitors would be negligible at best. This factor, however, is not dispositive on the issue of the constitutionality of the regulation.
E. Ready Alternatives to Denial of Visitation
The fourth and final factor in assessing the reasonableness of a regulation is whether there are ready alternatives to the regulation.
Turner,
482 U.S. at 89-90 , 107 S.Ct. at 2262 . “[I]f an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimus cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.”
Id.
“[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.”
Id.
In her recommendation, the Magistrate Judge listed several restrictions that proscribe the conduct of ATU inmates.
106
The Magistrate Judge found that these restrictions advance the state’s penological interests without burdening the inmates’ first amendment rights.
107
However, the final prong of
Turner
is not a “least restrictive alternative” test. “[P]rison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.”
Turner,
482 U.S. at 90-91 , 107 S.Ct. at 2262 . Accordingly, the court disagrees with Magistrate Judge and finds that the other restrictions, while arguably less restrictive than the denial of visitation privileges, do not fully accommodate the stated penological objectives. Thus, the visitation policy is not an exaggerated response to the goals of deterrence and rehabilitation. Accordingly, this court also finds that the denial of visitation privileges to ATU inmates for a period of 90 days is constitutionally permissi
*1239
ble, and therefore sustains the Commissioner’s objections to the Magistrate Judge’s recommendation.
VI. HITCHING-POST CLAIM
The plaintiffs’ second claim concerns the DOC’s use of a device referred to as a “hitching post.”
108
In a two-pronged attack, the plaintiffs allege that use of the hitching post violates their fourteenth-amendment right to procedural due process, as well as their eighth-amendment right to be free from cruel and unusual punishment. After conducting an evidentiary hearing,
109
the Magistrate Judge concluded that the Commissioner’s use of the hitching post violated both the eighth and fourteenth amendments.
110
The DOC Commissioner has raised a considerable number of objections to the Magistrate Judge’s findings of facts and conclusions of law. The court will address these objections in, the following manner. First, the court will examine the evidence, admitted at the hearing before the Magistrate Judge, concerning the ways in which the hitching post has been and is being used. The court will pay special attention to the following aspects of the hitching post: the events that trigger an inmate’s placement on the post; the length of time an inmate remains on the post; the manner in which an inmate is shackled to the post; the conditions under which an inmate remains on the post (ie., access to water, food, and restroom facilities, as well as climate conditions); the means by which an inmate can secure his release from the post; and, finally, the disciplinary sanctions that result from being placed on the hitching post. Second, the court -will analyze the plaintiffs’ constitutional contentions. Beginning with the plaintiffs’ eighth-amendment claim, the court will discuss whether the plaintiffs have satisfied their burden of showing both the objective and subjective components of the eighth-amendment framework. Next, the court will address the plaintiffs’ procedural-due-process claim, including whether the plaintiffs have demonstrated that use of the hitching post violates their constitutionally-created or state-created liberty interests. Although somewhat complicated by the fact that, as discussed below, the Commissioner has not utilized the hitching post in a consistent manner in the DOC’s penal institutions in Alabama, the court will undertake its analysis of the plaintiffs’ constitutional claims as they relate to both the DOC’s policy governing use of the hitching post and its manifested use.
A. The Hitching Post
On October 26, 1993, the DOC adopted Administrative Regulation Number 429, entitled “Refusal to Work” (hereinafter “Regulation 429”).
111
This regulation states that any inmate who “refuses to work or is otherwise
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disruptive to the work squad” shall be placed upon a “restraining bar,” or as others have termed the device, the hitching post.
112
Although the Magistrate Judge devoted considerable space in her recommendation outlining the manner in which the DOC has utilized this device, the court, after conducting an independent review of the record, finds it necessary to summarize briefly its findings of fact as to how the hitching post has been implemented in Alabama’s prisons. Such a review is necessary because, as will be shown below, although the DOC has attempted to regulate the use of the hitching post in its institutions, numerous and particularly egregious violations of its policy have resulted in substantial harm to those inmates who have been placed upon the device.
1. Purpose
Each correctional facility regulated by the DOC has a hitching post on its property. Although Regulation 429 is the only statewide administrative regulation promulgated by the DOC to govern the use of the hitching post, the DOC has issued some institution-specific regulations regarding the device.
113
As stated above, Regulation 429 provides that inmates who refuse to work or are otherwise “disruptive” should be placed on the post. The term “disruptive” is not defined in the text of Regulation 429. However, the regulation states that an “activity log” should be completed for each day an inmate is on the hitching post.
114
The activity log form issued by the DOC lists, under the section entitled “Reason for Restraint,” the following:
“Refusing to Work
Disruptive to Work Squad (Be Specific)
a.Refusal to Walk in Prescribed Manner
b. Refusal to Carry a Tool to Job Site
c. Other (Be Specific)”
115
In addition to refusing to walk in the prescribed manner and refusing to carry a tool, a corrections officer testified that an inmate would be considered “disruptive” and placed on the hitching post for fighting while on work assignment, or attempting to prevent other inmates from working.
116
However, during the evidentiary hearing before the Magistrate Judge, the DOC Commissioner testified that he believed two of the “disruptive” reasons listed on the activity log form, refusal to walk in the prescribed manner and refusal to carry a tool to the work site, should not result in an inmate’s placement on the hitching post, but rather should be dealt with by a disciplinary proceeding with due process.
117
He agreed that the reason neither violation should result in placement on the hitching post was because they were not “emergency situations.”
118
The Commissioner also stated that for an inmate to refuse to go out with his work squad in the morning would also not be considered an “emergency situation” to justify the use of the hitching post. The Commissioner attempted to clarify the meaning of “emergency situation” as follows:
“If just refusing to go out in the morning, you know, not going to work, that would not be an emergency situation. But should an individual just quit work immediately out on the work detail, that could involve an emergency situation.”
119
Notwithstanding the Commissioner’s testimony, the Magistrate Judge heard testimony from some inmates that they were placed on the hitching post for these three non-emer
*1241
gency reasons.
120
Further, the deputy warden of Limestone Correctional Facility testified that inmates who were late for checkout ■with their work squad and detained in holding cells would be transferred to the hitching post.
121
Although Regulation 429 attempts to limit the reasons for which inmates are placed upon the hitching post to refusal to work or disrupting a work squad, some institutions used the hitching post for other disciplinary purposes. For example, inmates at the Holman Correctional Facility were, at one time, subject to placement on the hitching post if they committed indecent exposure. Holman’s “Hitching Rail Procedure” plainly states, “Any inmate identified as a violator of Rule 38 Indecent Exposure/Exhibitionism may be secured to the hitching rail to prevent the continued negative behavior.”
122
For such a violation, the inmate is kept on the hitching post “until the end of the shift the violation occurred or dusk dark which ever is longer.”
123
The Commissioner has conceded that the Holman policy violated Regulation 429.
124
2. Physical Description
Regulation 429 describes the hitching post or restraining bar as a horizontal bar, “made of sturdy, nonflexible material,” placed at 57 inches and 45 inches from the ground so as to accommodate inmates of varying heights.
125
Inmates are handcuffed to the hitching post in a standing position and remain standing the entire time they are placed on the post. Although corrections officers are instructed to handcuff the inmates to the post at “mid-chest level,”
126
the plaintiffs presented evidence that some inmates were handcuffed such that they were forced to stand with their arms above their heads, while others were handcuffed such that they could not stand upright while handcuffed to the post.
127
Most inmates are shackled to the hitching post with their two hands relatively close together, however
*1242
some inmates were handcuffed so that then-arms were spread apart and their hands shackled independently.
128
Some facilities also shackle the inmates’ ankles together when the inmates are on the post.
129
Inmates eat their lunches while standing and with both hands shackled to the post. At one point in time, officers at the Limestone Correctional Facility permitted inmates to eat with one hand unshackled. However, this practice was discontinued because it was said to require too much time in order to secure additional officers to back up the officer who was unshackling the inmate.
130
Inmates are not permitted breaks to flex or stretch their muscles while they are on the post. As further explained below, many inmates reported being in mild to severe pain during and after their placement on the hitching post because of the strain on their muscles.
3. The Policy: Placement Procedures as Outlined in Regulation 429
Once an officer has determined that an inmate has refused to work or is disruptive to a work squad, the officer may place the inmate on the hitching post, using force if necessary.
131
No disciplinary hearing or other type of due process procedure is provided to the inmate.
132
According to Regulation 429, if force is used, the corrections officer should contact a nurse to “check the inmate’s condition.” Regardless of whether force is used, Regulation 429 specifies that the corrections officer must contact the health care unit “to ensure that [the inmate] does not have a medical stop-up restricting him from work.” Regulation 429 states that if no medical attention is warranted, then, at “the end of the day the inmate will be carried to the health care unit for a body chart.” The regulation does not specify whether “end of the day” means the completion of the inmate’s time on the hitching post if the inmate returns to work and serves less than a full day on the post, or it only applies if the inmate does not return to work and remains on the post until the conclusion of the work day. In either case, as discussed
infra,
the DOC Commissioner and his officers failed to observe this portion of the regulation.
Regulation 429 also provides that “[f]resh water will be available to the inmate” and that the inmate “will be given the opportunity to go to the bathroom once each hour.” The activity log form, attached to Regulation 429 as Annex A, instructs the corrections officer to record whether the inmate has accepted or rejected water and bathroom breaks in 15-minute increments.
133
Most importantly, the regulation states: “At any time during the day the inmate can tell an officer that he is ready to go to work. He will be allowed to join his assigned squad for that day and begin work.” However, if the inmate remains on the hitching post the entire day, “he will be checked back into the institution after the last squad is checked in.” Regulation 429 also states that “The inmate will be written a disciplinary for refusal to work,” but does not specify whether the inmate receives such a citation in all cases or only in those cases where the inmate, after being placed on the hitching post, maintains his refusal to work.
134
Further, Regulation 429 does not specify the number of days an inmate is to be placed on the hitching post for refusal to work; nor does the regulation set a maximum number of hours or days for which an inmate can be placed on the post.
The result of the “disciplinary,” referred to in Regulation 429 as being issued to an inmate who is placed on the hitching post,
*1243
depends on what type of rule or regulation the corrections officer contends the inmate violated. There are two types of disciplinary proceedings in Alabama’s prison system. Administrative Regulation Number 403 “Disciplinary Hearing Procedures for Major Rule Violations” (hereinafter “Regulation 403”) governs the procedure for “major rule violations.”
135
Among the major rule violations is Rule 54: “Refusing to work/failing to check out for work/encouraging or causing others to stop work.”
136
The sanctions for a violation of a major rule violation such as Rule 54 include “segregation, forfeiture of earned good time, and placement on the chain gang.”
137
Thus, the majority of inmates who are placed on the hitching post will be charged with a major rule violation and, after a due process hearing as set out in Regulation 403, can suffer the consequences listed above. The alternative procedure is found in Administrative Regulation Number 414: “Behavior Citation Procedures for Informal Disciplinary Actions.”
138
The result of receiving a behavior citation can include “removal from good time earning status” and/or “assignment to institutional chain gang for up to 15 days,” but does not result in a forfeiture of good time. Some examples of the minor rules violations include Rule 81: feigning illness; Rule 55: unsatisfactory work; Rule 87: malingering. A due process hearing is not required for the imposition of a punishment for a minor rules violation.
139
Thus, because the inmate who refuses to work receives a formal sanction as a result of his violating a major and minor rule, the Commissioner argues that placing the inmate on the hitching post is not a punishment, as such, but merely a means by which prison guards can coerce the inmate to return to work.
140
This argument will be discussed in greater length below.
4. The Practice: Actual Placement Procedures
The testimony given at the evidentiary hearing before the Magistrate Judge revealed that the procedures set out in Regulation 429 for determining whether to place an inmate on the hitching post were not followed, or were followed and resulted in substantial physical harm to inmates. The most compelling examples of this deficiency were in cases in which the corrections officers ignored inmates’ protestations that they were not physically capable of working. The corrections officers, whose medical background and training are disputed by the parties, often interpreted inmates’ complaints as indi-cia that they were malingering or refusing to work, and placed them on the hitching post. Placement on the hitching post oftentimes exacerbated the inmates’ poor physical condition.
For example, on May 2,1994, inmate Tony Fountain was placed on the hitching post at Staton Correctional Facility because he could not keep up with the rest of the inmates in his squad on their route to the work site. Fountain had previously received a “stop-up” order from the prison physician for his back and leg conditions, which, on the date he was placed on the hitching post, were causing him severe pain and discomfort.
141
Although Fountain did not refuse to work, he was taken back to the institution and placed on the hitching post at about 7:00 a.m. He was shackled to the lower of two bars, which forced him to bend over the entire time he was placed on the post. Fountain spent nine hours on the post in this bent position.
142
During this time, he was not given food, water, or access to toilet facilities, although he made such requests repeatedly.
143
Although Regulation 429 mandates that an in
*1244
mate receive a “body chart” examination following his placement on the hitching post, Fountain had to request such an examination from the prison’s health care unit. Fountain was unable to walk in an upright position for two weeks after his placement on the hitching post; he received a work stop-up order from the health care unit for 30 days due to the fact that he was dehydrated after his placement on the post and could not stand upright.
144
Another example can be found in the case of inmate Gerald Ware, who in the summer of 1995 was assigned to the Draper Correctional Facility segregation unit and chain gang. After injuring his shoulder while working, Ware was scheduled to receive an x-ray examination at the Kilby institution on July 6, 1995. On July 5, 1995, before his squad was checking out for work duties, Ware informed the back-gate officer that he needed to see the nurse because he was scheduled to have the x-rays performed. The officer refused to permit Ware to see the nurse and told him that he had to report for work duties. When Ware resisted, the officer summoned his supervisor, who placed Ware on the hitching post for refusing to work. Neither officer contacted the health care unit to verify Ware’s claims. Ware remained on the hitching post from 8:30 a.m. to 1:00 p.m., when an officer asked him if he could “just stand up” and “fake it for awhile” at the work site. The officer was concerned that, if Ware remained on the hitching post, he “could have a heat stroke.”
145
Ware described the experience of being placed on the hitching post as “very painful ... humiliating ... [and] real frustrating, dehumanizing.”
146
Following a formal charge of violating Rule 54 (Refusing to Work) and a disciplinary hearing, Ware was found not guilty. The hearing officer determined that “Inmate Ware was scheduled for X-Rays [sic] and did in fact go to Kilby on July 6, 1995. Inmate Ware should have been stopped up until the x-rays were done.”
147
5. Duration of an Inmate’s Placement on the Hitching Post
The length of time an inmate remains on the hitching post varies.
148
In fact, corrections officers from the same facility could not reach consensus on the average amount of time inmates at that facility spent on the hitching post. One Limestone corrections officer testified that the “majority” of inmates he placed on the hitching post wanted to go back to work after 30 minutes to an hour.
149
The Deputy Warden of Limestone stated that “in ninety percent of the cases [inmates] don’t stay on the bar over two hours.”
150
However, the back-gate officer at Limestone, who actually supervises the inmates on the hitching post, credibly testified that, on the average, inmates at Limestone spend about six or seven hours handcuffed to the post.
151
Gauging the average amount of time an inmate spends on the hitching post is further
*1245
complicated by the contradictory evidence in the record concerning compliance with Regulation 429’s provision that “At any time during the day the inmate can tell an officer that he is ready to go to work.”
152
However, inmates were not permitted to leave the hitching post after they had informed the officers that they were willing to work, but rather were forced to stay on the hitching post until their squad had returned from the work site.
153
One of the plaintiffs’ expert witnesses testified that it was his belief, after interviewing inmates and prison guards, that contrary to the rule set out in Regulation 429, inmates were not permitted to rejoin work squads after being placed on the hitching post:
“[TJhere are sharp disputes between the guards I spoke to and the prisoners on that matter. And I’m inclined to agree with the prisoners, because of the difficulty of arranging for a person to go out to a distant gang on any day and the limited number of guards that are observing people on the — or the guard that is observing the prisoner on the restraining bar, the same guard who is also on the front gate of Limestone. So I find it very hard to believe the sincerity of implementation of that regulation.”
154
There was some indirect evidence offered at trial to support the plaintiffs’ contentions that inmates were not permitted to return to work as soon as they informed the officers of their willingness to do so. For example, three sets of incident reports, involving a total of 10 inmates, reveal that corrections officers at the Easterling Correctional Facility placed inmates on the hitching post in the morning after the inmates had failed .to report for work duty, but were not removed from the hitching post until their work squad returned at lunchtime, some four to five hours later.
155
During his testimony at the evidentiary hearing, the corrections officer responsible for supervising these particular inmates stated that none of the inmates had refused to work, rather they only failed to appear for their roll call. He also stated that it was his practice to ask the inmates once every hour if they desired to join their work squads, but that “it just so happened” all of the inmates in question decided to rejoin their work squads after their squad’s lunch break.
156
While the incident reports and the corrections officer’s testimony do not provide direct evidence that Regulation 429’s directives were violated, the court finds the coinciding times raise an inference that the policy was not followed. The court also notes that Regulation 429 does not regulate the frequency with which the corrections officer guarding the inmates must inquire as to whether they would like to return to their work squads; nor is there a demarcation on the annex form to Regulation 429 for the corrections officer to record the number of times he or she has asked the inmates on the hitching post if they would like to return to their work squad.
It also appears from the record that some institutions have adopted the practice of leaving inmates on the hitching post until their squad returns from the work site, regardless of whether the inmate has indicated that he is ready and willing to work. Another one of the plaintiffs’ expert witnesses testified, based on his observation of a training videotape produced by the DOC, that correctional officers are instructed to leave inmates on the hitching post until their work squad returns.
157
It is apparent that the DOC gains
*1246
a substantial derivative benefit from this practice, in that the inmate on the hitching post is in plain view of other inmates returning from the work sites who then taunt and ridicule him as they pass by. One corrections officer credited this type of humiliation with motivating the inmates to adhere to their work duties:
“They’re on that restraining bar when the rest of their squad who did work comes in, or by them to go into the gate and go back in. And the amount of harassment, verbal I mean, from the other inmates does a lot, you know. It really affects them. When they start, well, making fun of them, you know, talking about how stupid they look standing there and all this, that it really affects them.”
158
Indeed, one inmate testified about his experience being on the hitching post when their squad returns from the work site. Tony Fountain was placed on the hitching post for nine hours at Staton Correctional Facility, and was forced to defecate in his pants when his requests for a bathroom break were ignored. Fountain was not permitted to use the restroom or to change his clothing for four and one-half hours after he had defecated on himself. About 100 inmates returning to the institution from the work site saw him in this condition; they laughed at him and made jokes about him, and continued to refer to him in derogatory terms after the incident.
159
Thus, in addition to whatever physical effects the inmate experiences while placed on the post, the hitching post serves a type of public shaming function as well.
To further compound the problem of noncompliance with Regulation 429, some individual institutions developed their own policies regarding returning inmates to work after they have been placed on the hitching post. The hitching-post policy for the Holman Correctional Facility reads: “The inmate will be escorted to the hitching rail and secured for the duration of his work shift or four hours which ever is greater. The exception to this rule is inclement weather and darkness both of which result in the inmate being removed from the hitching rail.” However, an inmate may return to work after the shift commander determines the “legitimacy of the inmate’s request to return to work,” and finds the inmate “is ready to work.”
160
Thus, although Regulation 429 mandates that any inmate who states he is willing to work be returned to his work squad, at institutions such as Holman, the corrections officer can decide that an inmate’s proffered willingness to work is illegitimate and decline to remove him from the hitching post.
6. Conditions of Confinement on the Hitching Post
The hitching post is located outside the institution and, according to the testimony of the inmates who have been placed on it, the hitching post is not shaded from the sun.
161
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Although they can be placed on the hitching post at any time of the year, including the summer, inmates do not receive sun block protection, nor are they always permitted to wear a hat to shield their faces from the sun.
162
Several of the inmates were placed on the hitching post during the summer months when the temperatures were upwards of 95 degrees Fahrenheit. These inmates experienced dehydration, as well as sunburn and blistering from their unprotected exposure to the sun.
163
As stated above, Regulation 429 requires that inmates be provided with fresh water and given the opportunity to use the bathroom once every hour while on the post.
164
The Magistrate Judge correctly concluded that this policy was not adhered to by the DOC Commissioner and his officers. Inmates were not given water while shackled to the hitching post, and were denied access to toilet facilities while shackled to the hitching post. Moreover, certain corrections officers not only ignored or denied inmates’ requests for water or access to toilet facilities, but taunted them while they were clearly suffering from dehydration or had been forced to defecate or urinate in their clothes and needed to access facilities so they could wash themselves.
165
The Magistrate Judge correctly concluded that these actions presented serious health hazards, not only for the inmates, but also for anyone in their immediate vicinity.
166
One of the most egregious examples of this type of abuse occurred during Larry Hope’s placement on the hitching post. Hope was placed on the hitching post on June 7, 1995, for seven hours during very hot weather.
167
The reason for his placement on the hitching post was his altercation with six corrections officers.
168
Hope had not received water for at least two hours while placed on the hitching post and repeatedly requested water. He made such requests to two corrections officers in charge of the dog truck; one of these officers filled a cooler with ice and water and “watered the dogs” on the dog truck. The officer then placed the cooler on the ground at about three feet from Hope, “took the top off’ and “kicked it over” so that the water ran to the ground directly in front
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of Hope.
169
The Commissioner has conceded that these allegations, if true, would constitute violations of Regulation 429, but contends that there is insufficient evidence to support the allegations.
170
However, the Commissioner did not present any evidence to refute Hope’s allegations. Further, the Commissioner’s claims that evidence in the record contradicts Hope’s testimony are unfounded. The Commissioner points to plaintiffs’ exhibit 50 to show that Hope received water while placed on the hitching post.
171
However, plaintiffs’ exhibit 50 documents Hope’s May 11,1995, placement on the hitching post. The only evidence in the record that relates to Hope’s June 7, 1995, placement on the hitching post, the date that he contends he was deprived of water, is plaintiffs’ exhibit 51, a treatment record for Hope following his altercation with the corrections officers and prior to his placement on the hitching post, as well as plaintiffs’ exhibit 20, which is a photograph of Hope receiving a cup of water from an officer. While the photograph demonstrates that Hope received at least one cup of water during his seven-hour placement on the hitching post, the Commissioner has provided no documentation concerning Hope’s June 7, 1995, placement on the hitching post to demonstrate that he received water in regular intervals throughout the day as required by Regulation 429.
The most repeated complaint of the hitching post, however, was the strain it produced on inmates’ muscles by forcing them to remain in a standing position with their arms raised in a stationary position for a long period of time.
172
In addition to their exposure to sunburn, dehydration, and muscle aches, the inmates are also placed in substantial pain when the sun heats the handcuffs that shackle them to the hitching post, or heats the hitching post itself. Several of the inmates described the way in which the handcuffs burned and chafed their skin during their placement on the post.
173
One of the plaintiffs’ experts recreated the conditions of the hitching post and shackled himself to it for about two hours. He stated:
“[I]n the 93 degree weather ... that pipe, the sunlight on the metal bar began to generate a heat that went well beyond the 93 degrees and became hotter and hotter so that my wrists touching that bar became inflamed, and the only way I could avoid the bar would be to hold the chain between the handcuffs above the bar, which meant I had to even get in a higher position. When I did bring the handcuffed arms on the bar itself, then the handcuffs began to get a transmission of heat from the bar, and the handcuffs themselves heated up. At the end of two hours, Your Honor, I decided that this experience I had was not going to go on any longer ... no one can honestly say that this is not a painful experience. And I’m sure it varies from one inmate to another. I do not know how an inmate would stay on that for eight or ten hours.”
174
The Commissioner attempted to introduce similar evidence regarding their expert’s experience on the hitching post. However, the Magistrate Judge sustained the plaintiffs’ objections to the admission of this evidence.
175
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7. The Department of Justice’s Investigation
In June and July of 1994, the Civil Rights Division of the United States Department of Justice conducted an investigation of Alabama’s Easterling Correctional Facility. This investigation included an evaluation of Easterling’s use of the hitching post.
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The Department of Justice concluded that the hitching post
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required an improper use of restraints and corporal punishment, that corrections officers did not comply with the minimal safeguards required by state policies, and that inmates with medical conditions were placed on the hitching post without medical clearances, which rendered the use of the hitching post “potentially dangerous from a medical standpoint.”
178
The Department of Justice found the DOC’s officers had failed to comply with the policy of immediately releasing any inmate from the hitching post who agrees to return to work.
179
The Department of Justice recommended that in order to meet minimum constitutional standards at Easterling, the DOC should cease its use of the hitching post.
180
The DOC responded to the Department of Justice’s report by way of a letter, dated May 15, 1995.
181
In the letter, the DOC stated that it had “determined to maintain the existence of the security bar, noting that its use is not unconstitutional and is necessary to preserve prison security and discipline.”
182
The letter continued to explain the DOC’s reasons for using the security bar, or hitching post:
“DOC assures DOJ that the security bar is not used with malice or cruelty but with the intent of maintaining prison security.... “While DOJ raises valid concerns regarding the potential health problems that could develop from use of the security bar, DOC maintains that these have been adequately addressed in the past.... [T]he use of the security bar at Easterling is closely monitored. Inmates are offered water every fifteen minutes and are allowed to use a toilet whenever necessary. Any inmates taking medication with side-effects that could be worsened by exposure to the sun or any medically compromised inmates are given a medical stop-up. DOJ, while raising “potential” concerns, has not cited any actual case where an inmate’s medical condition has been caused or exacerbated while being restrained on the security bar. In fact, no such case of an inmate restrained on the security bar requiring medical attention has ever existed at Easterling. As long as the use of the security bar is closely monitored, actual related medical problems should be continued to be avoided.”
183
The DOC supported its argument that the hitching post was a valid means of maintaining security by citing
Whitley v. Albers,
475 U.S. 312 , 106 S.Ct. 1078 , 89 L.Ed.2d 251 (1986).
184
However, the Department of Justice disagreed with the DOC’s interpretation of
Whitley .
In a letter dated June 27, 1995, the Department of Justice responded to the DOC’s letter as follows:
“We remain deeply concerned about your unwillingness to take any corrective action regarding the ‘rail’ or ‘hitching post.’ We have reviewed your legal analysis and must differ with your reading of
Whitley .
Although an emergency situation may war
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rant drastic action by corrections staff, our experts found that the ‘rail’ is being used systematically as an improper punishment for relatively trivial offenses. Therefore, we have concluded that the use of the ‘rail’ is without penological justification.”
185
The Department of Justice report was raised in a wardens and directors’ meeting held on November 15, 1995. According to the minutes of the meeting,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2314799. Public record. Not legal advice.