Marvin Jones, on His Own Behalf and on Behalf of Those Similarly Situated v. Fred R. Diamond, Etc.

ALVIN B. RUBIN, Circuit Judge,

concurring in part and dissenting in part.

This suit originated as a class action more than five years ago and its tortuous path is traced in the majority opinion. The complaint did not ask the federal court to free a single condemned criminal. It did not request that a federal judge interfere in any way with the judicial processes of the State of Mississippi. It sought only an order that, in confining persons in a county jail, the officials of that state comply with guarantees that the federal constitution extends to everyone in the land, mighty or oppressed, free or convicted: protection against cruel and inhuman punishments, equal protection, the right to counsel and due process of the law. Ancillary thereto, it sought their compliance with the laws of the State of Mississippi.

My brethren now order injunctive relief to remedy a number of violations of the federal constitution in the operation of the Jackson County Jail. While I agree that the plaintiffs are entitled to all of the relief granted, I believe they should be awarded much more in this court, and that they should have another day in district court on their class action claims for monetary damages. I dissent, therefore, from the failure of my brethren to accord plaintiffs their full measure. I dissent also from the circumscriptions imposed by the majority that in effect grant the nonappealing defendants relief they never sought.

I agree that the defendants must be enjoined:

1. From continuing racial segregation in the jail;

2. From confining in any cell in the new jail a greater number of prisoners than the number for which it was designed and constructed.

The majority opinion grants further relief that I agree should be accorded. By what is carefully called an “order,” or in one instance a “declaratory judgment,” and not an “injunction,” they require the jail authorities:

1. To prepare new visitation rules.

2. To submit a statement of policy concerning the separation of violent, disturbed or contagiously ill persons from the general jail population.

3. To grant minimal due process rights to pretrial detainees.

For reasons set forth below, I would accord greater relief than the majority. Moreover, I would incorporate all of the orders into a single injunction. The majority opinion fails to explain the difference between an “order” and an “injunction”. The order with respect to visitation is said to be designed “to clarify the situation and remove it from the field of further dispute.” The “order” with respect to prisoner protection is said to relate to a “statement of policy.” If these orders are complied with, there will be no need for further action. If they are not executed, I presume that contempt proceedings would be appropriate. What is accomplished by calling these by a different name, other than to avoid the use of the term “injunction,” I do not perceive.

My brethren also deny any relief with respect to the pending state claims. They properly point out “that Mississippi does *1032 have a statutorily articulated policy which commands humane treatment for the county jail prisoners.” The record in my opinion shows that what has been commanded by the state’s statutes has not always, been performed by its county jailers. I would preserve the plaintiffs’ right to seek damages for these violations and for the invasions of their federal constitutional rights.

In some respects, I concur with the conclusions the majority has reached in denying some of the relief initially sought. In many others, I respectfully differ. To trace my differences and agreements requires me to discuss a number of matters separately:

I. FEDERAL CONSTITUTIONAL VIOLATIONS

It is clear from those parts of the majority opinion with which I concur that the Jackson County Jail was, when this suit was filed, and still is, being operated in a manner that violates the federal constitution. The most egregious, though not the sole, wrongs were racial segregation of its prisoners, and such intense overcrowding as to constitute cruel and unusual punishment and violation of due process. It is implicit in the trial court’s actions that the trial judge, despite his explicit disclaimer, found the confinement of prisoners in the old jail to be unconstitutional, for on December 6, 1977 that court ordered a new jail ready by September 15, 1978. It obviously had no jurisdiction to decree any relief were the present jail being operated without constitutional violation. It is implicit in my brethren’s opinion that the old jail was operated in an unconstitutional manner when this suit was filed, and that, at the time of trial, it was still being operated unconstitutionally in at least some respects beyond the continued practice of racial segregation for, otherwise, this court would lack jurisdiction to issue any order or prescribe any other relief beyond integration of the jail; were racial segregation the sole problem, there would be no need to discuss the history of the county bond issue or the architecture of the new structure and the facilities it will afford.

With all respect for the views of my brethren, I cannot, therefore, concur in their failure to state explicitly that the defendants have violated the plaintiffs’ federal constitutional rights or in their view that mere completion of the new jail has eliminated the need for a broader injunction. These matters are not unrelated: the forthright declaration that jail operation has been and is likely to continue to be violative of federal rights not only is the sole justification for the relief the majority accord; it also is the reason why that relief provides neither adequate recompense for past wrongs nor appropriate protection against their future repetition.

In discussing whether the majority opinion accords the plaintiffs the protection needed to redress their wrongs, I accept for the purposes of this case the precept that findings of fact of the trial judge are to be accepted unless' clearly erroneous. Rule 52, Federal Rules of Civil Procedure. A number of federal circuit courts have qualified the clearly erroneous rule when reviewing constitutional facts found by federal trial courts. 1 To review the 1520 pages of tran *1033 script in the present case by some other standard, such as strict scrutiny, with respect to the matters now before us would not alter my conclusions. So I accept the clearly erroneous rule as applicable in this case, reserving for discussion in a case where it must be squarely met its applicability and significance in matters of constitutional fact.

II. NECESSITY FOR FURTHER RELIEF

Let us then assume that the fact findings are correct, except insofar as they are clearly erroneous, as the majority have found them in at least some respects to be. Problems in the Jackson County Jail were acute when Sheriff Diamond took office in 1972; they remained grave until Sheriff Ledbetter succeeded him in 1976. While they were alleviated to some extent after that, my brethren agree that constitutional violations continued even then, and Sheriff Led-better’s administration began three years after this suit was filed.

Even had conditions improved dramatically at the Jackson County Jail during the course of this litigation, that would not obviate the need for injunctive relief against future violations. See Allee v. Medrano, 1974, 416 U.S. 802, 810 , 94 S.Ct. 2191, 2198 , 40 L.Ed.2d 566, 578 . Only if the defendants meet their burden of proving that “the allegedly wrongful behavior could not reasonably be expected to recur” would equitable relief be unwarranted. United States v. Concentrated Phosphate Export Association, Inc., 1968, 393 U.S. 199, 203 , 89 S.Ct. 361, 364 , 21 L.Ed.2d 344, 349 . See also Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1321 .

Nor have the defendants shown that respect even for explicit court orders that would justify the assumption that they will faithfully fulfill their duties in the future. Without, as far as the record discloses, so much as a by-your-leave or a request for a time extension, they have ignored the district court’s order to complete the new jail. When on October 18, 1978 this case was orally argued, counsel informed this court that the Jackson County Jail was still being used as the sole place for confinement in the county and the new jail was still not in operation although affidavits filed in the record after argument assure us that it “has been completed and is physically” ready for occupancy. One such ex parte affidavit stated that the new jail would be in operation on February 15,1979, but nothing filed in the record tells us that this has been accomplished. The majority opinion states that the new jail is now in operation, and I accept this factual statement, but this was accomplished 14 months after the appeal was filed and five months after it was argued.

Even if, therefore, by the time this opinion is filed, all the persons detained are housed in the new jail, this does not as my brethren assume, remedy all the problems of the past merely because ample and sanitary space exists in which to do so. I would issue an injunction that would assure that repetition of this six year old suit will not be necessary. There is even more reason to provide the plaintiffs court protection because completion of the vaunted new jail has apparently not only taken more time than the district court allowed but has proceeded at what appears to be a leisurely pace. The record bears no evidence that the defendants exerted themselves to the utmost to obtain new facilities as soon as possible. For example, they say in post-argument affidavits that their staff had to be trained to operate the new jail. Why this training could not have taken place while final construction was proceeding is not evident. There is no evidence of record that the defendants made any effort to expedite events. Their lives proceeded in accustomed fashion; relief for several thousand human beings was evidently not a matter of first concern.

*1034 Moreover, because of the demonstrated poor condition of the old, jail, and the defendants’ affidavit that it will not be used in the future to confine anyone overnight, I would enjoin the use of the old jail for any other purpose. In the light of the past violations of law recognized by the majority, I would take this simple step to be certain that what has been promised to the court by jail officials will be performed without further delay or litigation and that there will be no future reversion to past practices.

None of the relief accorded by the majority compensates Jackson County prisoners for the unconstitutional deprivations they were suffering prior to the time this case was filed and during the six years it has been pending. The opening of a new jail after this case was argued on appeal addresses none of the injury done them. I would, therefore, remand for class certification and award of damages as more fully set forth below.

III. CONSTITUTIONAL RIGHTS OF CONFINED PERSONS

My brethren note that most of the persons who have been confined at the jail are pretrial detainees, accused of crime but “not, as yet, guilty of anything,” Rhem v. Malcolm, 2 Cir. 1974, 507 F.2d 333, 338 , even though there may be probable cause for their trial. Those pretrial detainees who remain in jail more than a few hours are for the most part poor. The well-to-do are doubtless able to provide bond.

The sole justification for confinement pretrial is to assure attendance at trial; therefore, pretrial detainees cannot constitutionally be subjected to any hardships except those absolutely necessary to ensure their continued confinement. See, e. g., Campbell v. McGruder, 1978, 188 U.S.App.D.C. 258, 266 , 580 F.2d 521, 529 ; Feeley v. Sampson, 1 Cir. 1978, 570 F.2d 364, 369-70 ; Miller v. Carson, 5 Cir. 1977, 563 F.2d 741, 750 ; Duran v. Elrod, 7 Cir. 1976, 542 F.2d 998, 999 ; United States ex rel. Tyrrell v. Speaker, 3 Cir. 1976, 535 F.2d 823, 827 ; Rhem v. Malcolm, supra, 507 F.2d at 336 ; Jones v. Wittenberg, N.D.Ohio 1971, 323 F.Supp. 93, 100 , aff’d sub nom. Jones v. Metzger, 6 Cir. 1972, 456 F.2d 854 . I fail to perceive any reason why the probable cause for their detention, so emphasized by my brethren, justifies anything more than their simple confinement until they can be tried.

Even persons duly convicted and serving sentences are not deprived of the protection of the constitution. An inmate “retains all the rights of an ordinary citizen except those expressly or by necessary implication, taken from him by law.” Jackson v. Godwin, 5 Cir. 1968, 400 F.2d 529, 532 , quoting Coffin v. Reichard, 6 Cir. 1944, 143 F.2d 443, 445 , cert. denied, 1945, 325 U.S. 887 , 65 S.Ct. 1568 , 89 L.Ed. 2001 . See also Pell v. Procunier, 1974, 417 U.S. 817, 822 , 94 S.Ct. 2800, 2804 , 41 L.Ed.2d 495, 501 ; Cruz v. Beto, 1972, 405 U.S. 319, 321 , 92 S.Ct. 1079, 1081 , 31 L.Ed.2d 263, 267 ; Washington v. Lee, M.D.Ala.1966, 263 F.Supp. 327, 331 , aff’d per curiam, 1968, 390 U.S. 333 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 . There can be little doubt from the facts found by the majority that at least some of their rights have been violated.

IV. SEPARATION OF PRETRIAL DETAINEES FROM CONVICTS AND PROTECTION OF CONFINEES

While our decisions have recognized that prison and jail officials have broad discretion in classifying convicts confined within their institutions, I would require further measures than the majority with respect to separation of inmates; the jailers should be required to do more than merely protect prisoners from persons who are violent or contagiously ill; they should be required also to separate pretrial detainees from convicts. Whether or not this is called “classification” is immaterial. Of course each inmate at the Jackson County Jail, whether or not convicted of a crime, has a constitutional right to be segregated from those who endanger his or her security, and from persons contagiously ill. See, e. g., McCray v. Sullivan, 5 Cir. 1975, 509 F.2d 1332, 1334 , cert. denied, 423 U.S. 859 , 96 S.Ct. 114 , 46 L.Ed.2d 86 . I would hold that *1035 pretrial detainees have a due process right to be held in facitities apart from convicted inmates even if this necessitates physical modification of the jail. See, e. g., Barnes v. Government of Virgin Islands, D.V.I.1976, 415 F.Supp. 1218, 1232-33 ; Hamilton v. Landrieu, E.D.La.1972, 351 F.Supp. 549, 552 ; Jones v. Wittenberg, N.D. Ohio 1971, 330 F.Supp. 707, 717 , aff’d sub nom. Jones v. Metzger, 6 Cir. 1972, 456 F.2d 854 . The facilities in the new jail permit this kind of separation with nothing more than a slight effort by the jailers.

V. SECTION 1983 CLAIM FOR DAMAGES

Plaintiffs sought primarily injunctive relief, but they also prayed for compensation in damages for the conditions in the Jackson County Jail violating their constitutional rights. The majority confront this request only in the context of the claim of physical abuse by inmate trusties and fellow prisoners, and conclude that § 1983 provides a remedy for such violence only when the conduct of jail officials rises to the level of intentional or reckless disregard of a prisoner’s constitutional rights. With all respect, I believe my brethren have failed to distinguish between the nature of the conduct that must be shown to establish a violation of constitutional rights and whether, if such a violation is shown, the degree of culpability justifies the imposition of damages under § 1983. In so doing, they have departed from Fifth Circuit precedent and I must dissent from their conclusion.

Since Monroe v. Pape, 1961, 365 U.S. 167, 187 , 81 S.Ct. 473, 484 , 5 L.Ed.2d 492, 505 , the Civil Rights Act has been read “against the background of tort liability that makes a man responsible for the natural consequences .of his actions.” Neither the language of § 1983, nor its interpretation by the Supreme Court, suggests that only intentional invasions of constitutional rights are within its protection. In Whirl v. Kern, 5 Cir. 1968, 407 F.2d 781 , cert. denied, 1969, 396 U.S. 901 , 90 S.Ct. 210 , 24 L.Ed.2d 177 , this court concluded that inadvertent and negligent infringements of constitutional rights are remediable under § 1983. While that section of Whirl v. Kern discussing official immunity has been eroded, its holding regarding the prerequisites for stating a claim under § 1983 remains the law of the circuit and I cannot agree with the majority that it has been overruled sub silentio. See, e. g., Bryan v. Jones, 5 Cir. en banc 1976, 530 F.2d 1210, 1215 , cert. denied, 429 U.S. 865 , 97 S.Ct. 174 , 50 L.Ed.2d 145 , and concurring opinion of Judge Brown, 530 F.2d 1215 n.1 ; Johnson v. Greer, 5 Cir. 1973, 477 F.2d 101, 105-06 ; Roberts v. Williams, 5 Cir. 1971, 456 F.2d 819, 825 , cert. denied, 404 U.S. 866 , 92 S.Ct. 83 , 30 L.Ed.2d 110 .

In Bryan v. Jones, supra, 530 F.2d at 1215 , this court en banc held that, if a jailer “negligently establishes a record keeping system in which errors of this kind are likely, he will be held liable. But if the errors take place outside of his realm of responsibility, he cannot be found liable because he has acted reasonably and in good faith.” The court went on to hold that reasonable good faith is a defense to a charge of negligent false imprisonment; presumably, like other affirmative defenses, this must be proved by the defendant.

Other courts have agreed that negligent conduct resulting in the deprivation of a clearly established constitutional right is actionable under § 1983. See, e. g., Navarette v. Enomoto, 9 Cir. 1976, 536 F.2d 277, 281 , rev’d on other grounds sub nom. Procunier v. Navarette, 1978, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 ; Fitzke v. Shappell, 6 Cir. 1972, 468 F.2d 1072 , 1077 n.7; Howell v. Cataldi, 3 Cir. 1972, 464 F.2d 272, 279 ; Puckett v. Cox, 6 Cir. 1972, 456 F.2d 233, 234-35 ; McCray v. Maryland, 4 Cir. 1972, 456 F.2d 1, 5-6 ; Carter v. Carlson, 1971, 144 U.S.App.D.C. 388 , 395 and n.20, 447 F.2d 358 , 365 and n.20, rev’d on other grounds sub nom. District of Columbia v. Carter, 1973, 409 U.S. 418 , 93 S.Ct. 602 , 34 L.Ed.2d 613 ; Madison v. Manter, 1 Cir. 1971, 441 F.2d 537, 538 .

A plaintiff suing under § 1983 must, of course, demonstrate that the alleged wrong resulted in a deprivation of a right secured by the Constitution or laws of the United States. See, e. g., Navarette v. Enomoto, *1036 supra, 536 F.2d at 281 ; Whirl v. Kern, supra, 407 F.2d at 789 n.9. The “simple negligence” sufficient in other circumstances to constitute a tort does not always demonstrate a violation of federal rights. See, e. g., Bonner v. Coughlin, 7 Cir. en banc 1976, 545 F.2d 565 ; Page v. Sharpe, 1 Cir. 1973, 487 F.2d 567 ; Tate v. Blackwell, 5 Cir. 1973, 475 F.2d 193 , cert. denied, 412 U.S. 922 , 93 S.Ct. 2743 , 37 L.Ed.2d 149 ; Nettles v. Rundle, 3 Cir. 1971, 453 F.2d 889 .

Thus, for a claim of inadequate medical care to rise to the level of a violation of the Eighth Amendment the plaintiff must show “deliberate indifference” to his serious medical needs. Estelle v. Gamble, 1976, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 . Accord, Smart v. Villar, 10 Cir. 1976, 547 F.2d 112, 114 ; Hampton v. Holmesburg Prison Officials, 3 Cir. 1976, 546 F.2d 1077 . See also Williams v. Vincent, 2 Cir. 1974, 508 F.2d 541 . It is both a logical error and a disregard of our precedent to conclude that the other constitutional rights involved here may not be infringed by negligence or by actions that are somewhat less egregious than clear indifference.

My brethren hold, and I agree, that at least some constitutional violations were established here. Some of these wrongs, such as the racial segregation and other violations that occurred during the period prior to the time Sheriff Ledbetter took office, were apparently wilful or at least committed in clear indifference to established constitutional rights. The trial court made no findings concerning these acts, nor with respect to whether or not the actions of the jailers during Sheriff Ledbetter’s regime violated § 1983. We should, therefore, remand the case for consideration of § 1983 liability, and of the defendants’ official immunity under the standards set forth in Procunier v. Navarette, 1978, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 , and Bogard v. Cook, 5 Cir. 1978, 586 F.2d 399 . If defendants are not shielded by their qualified immunity, the district court should proceed to hear evidence concerning individual damages after appropriate notice is given to class members. 2 See Section VI, infra. Even if only nominal damages are due, they should be assessed. See Carey v. Piphus, 1978, 435 U.S. 247 , 98 S.Ct. 1042 , 55 L.Ed.2d 252 .

I must also disagree with the conclusion of my brethren regarding the specific claim for violation of plaintiffs’ right to personal security. Inmates are in no position to defend themselves from attacks from other prisoners. It is incumbent upon jail officials to adopt reasonable measures to ensure the safety of those individuals in their charge. While occasional, isolated attacks by one prisoner or another do not create a climate inconsistent with constitutional rights, confinement in a jail where there is a pervasive risk of harm, exacerbated by overcrowding, inadequate classification methods or supervision, and lack of recreation, violates constitutional standards. See, e. g., Finney v. Arkansas Board of Corrections, 8 Cir. 1974, 505 F.2d 194, 201 , aff’d sub nom. Hutto v. Finney, 1978, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 ; Woodhous v. Virginia, 4 Cir. 1973, 487 F.2d 889, 890 ; Gates v. Collier, 5 Cir. 1974, 501 F.2d 1291, 1308-09 ; Alberti v. Sheriff of Harris County, S.D.Tex.1975, 406 F.Supp. 649, 669 . Properly evaluated, the conditions in the Jackson County Jail may be found to have created such an unconstitutionally danger *1037 ous atmosphere. I would therefore direct the trial court to make findings on remand with respect to this claim and any defense that may be offered.

Although as discussed above, I would hold that a showing of negligent maintenance'of unconstitutional conditions by the defendant is sufficient to establish a § 1983 claim, if “deliberate indifference” is required, I believe the defendants have demonstrated such disregard for the welfare of their charges. They have deliberately allowed the conditions my brethren find impermissible under constitutional standards to persist for almost six years despite this court challenge, and even worse conditions to prevail during the first three of those six years and in the period before suit was filed. Some more egregious violations of constitutional rights were terminated only at the end of the Diamond administration, such as solitary confinement in the “hole” without due process safeguards, and total lack of supervision by free-world jailers at night and on weekends. These deliberate decisions to inflict punishment were not only unconstitutional; they contributed to the atmosphere of violence and fear entitling plaintiffs to § 1983 relief.

Evidence was taken concerning the claims of ten prisoners. I would consider this at least ancillary to the class action 23(b)(2) claims, hold them properly before us for decision and decide them. See Section VI, infra.

VI. CLASS ACTION: INMATE SECURITY AND STATE LAW CLAIMS

My brethren dwell at length on the humane conditions required by Mississippi state law; yet they decline to consider the individual pendent state law claims because the class action was never certified under Rule 23(b)(3), that is, as a claim for damages for the individual prisoners, and any decision now reached on appeal would not have res judicata effect. Although they leave open the possibility of a new 23(b)(3) suit, some of those claims may have lapsed as a result of the statute of limitations. Miss.Code Ann. § 15-1-49. My brethren comment, in footnote 13, that jail conditions were “generally portrayed as deplorable” prior to the time Sheriff Diamond took office in 1972. Claims for damages suffered during this period should not be ignored.

The complaint in this case may not have been drawn as artfully as possible, but it clearly is a class action and seeks relief under both Rule 23(b)(2) and (b)(3), Federal Rules of Civil Procedure. See majority opinion, footnote 25. Although injunctive relief was the principal objective, damages might be awarded as an incident even to a (b)(2) action. See, e. g., Senter v. General Motors Corp., 6 Cir. 1976, 532 F.2d 511, 525 , cert. denied, 429 U.S. 870 , 97 S.Ct. 182 , 50 L.Ed.2d 150 ; 7A C. Wright & A. Miller, Federal Practice and Procedure; Civil § 1775 at 19 n.31 (Supp.1978) collecting cases; 3B Moore’s Federal Practice, II23.40[4], at 23-304-05 (2d ed. 1978). This is the intimation of the note of the Advisory Committee recommending the change to the present text of Rule 23(b)(2). Advisory Committee Note, 39 F.R.D. 98 , 102 (1966).

For a general discussion, see Comment, Antidiscrimination Class Actions Under the Federal Rules of Civil Procedure: The Transformation of Rule 28(b)(2), 88 Yale L.J. 868 (1979).

However, it is unnecessary to dwell on whether the (b)(2) claim warrants the award of damages sustained as an incident of the conduct sought to be enjoined. As the majority opinion notes, over 8,500 persons might have (b)(3) claims under § 1983 or the pendent Mississippi law claims; whether they wish to assert these claims and, if so, what evidence they might bring to counsel’s attention is unknown.

Even if plaintiff’s counsel failed to insist on (b)(3) certification, the complaint seeks it. The issue before the trial judge and the issue before us is not counsel’s conduct of the case, but whether the constitutional and *1038 statutory rights of the plaintiffs have been violated. When a class action is filed, some responsibility for its proper conduct devolves on the trial judge. Without in any way compromising the court’s impartiality with respect to the substantive issues, the trial judge must not only promptly certify or deny certification to the class action; in considering certification, he must take into account the ability of counsel, and, even after certification, it may become his duty to appoint additional counsel for the class in order to assure an adequate trial on its behalf, whether to victory or defeat. Rule 23(b) affords ample authority to the court to enter appropriate orders to guide the conduct of class actions.

I respectfully suggest that the federal judge in a class action is not to be a “passive observer, allowing the initiative of the opposing attorneys to control the course of the litigation.” Comment, Adequate Representation, Notice and the New Class Action Rule: Effectuating Remedies Provided by the Securities Laws, 116 U.Pa.L.Rev. 889, 898 (1968). We have ourselves endorsed this concept: “[I]n class actions under the civil rights statutes, the trial court bears a substantial management responsibility over the conduct of the litigation, which arises the moment the class is requested.” Jones v. Diamond, 5 Cir. 1975, 519 F.2d 1090, 1098 .

Concern for the rights of the members of a class is not for the conscience only of trial judges; we who sit on appeals ourselves bear a duty in that regard. Accordingly, I would remand the case to permit the plaintiffs to seek proper certification under Rule 23(b)(3), with, of course, all that entails, including proper notice. The rights of individual class members to damages should then be determined in accordance with the substantive principles I have suggested. I would remand the damage claims of the ten persons whose claims have already been considered by the trial court for reconsideration without awaiting (b)(3) certification in the light of this opinion as an incident to the 23(b)(2) relief sought.

VII. OPPORTUNITY FOR EXERCISE

Exercise is not mere recreation. Unused muscles atrophy. Unexercised bodies become ill. Enforced inertia is itself the denial of a basic physical and mental need. See Miller v. Carson, 5 Cir. 1977, 563 F.2d 741, 749-51 . Nor is it only those confined for years who need exercise. Surgeons recognize that physical activity is so important that they are requiring patients to get out of bed and resume some form of exercise within 24 hours after serious surgery. If outdoor exercise is not available, then opportunity for indoor exercise should be afforded those confined for lengthy periods. It does not appear to me that we can ignore as judges what is common knowledge concerning the needs of the human body merely because no doctor has testified to it.

• The majority opinion points out that facilities for outdoor exercise are available at the new jail. However, many persons may have been confined for lengthy periods in the old Jackson County jail without opportunity for any exercise, indoors or out. Those who have been confined for a lengthy period and who can show injury as a result of lack of exercise should be given an opportunity to do so.

VIII. REGULATION OF MAIL

As the majority opinion states, the regulation of convict correspondence in this circuit is governed by our recent decision in Guajardo v. Estelle, 5 Cir. 1978, 580 F.2d 748 . Guajardo , however, did not deal with the rights of pretrial detainees or the first amendment rights of those with whom such persons, as yet uncondemned, would correspond. The freedom of speech of persons not yet found guilty of any crime and of those with whom they seek to communicate should be unrestrained save insofar as their safe detention pending trial requires.

Under the facts of this case, I agree that Guajardo standards should be applied to pretrial detainees as well as to convicted persons. The Jackson County Jail is a relatively small institution. Parchman prison *1039 ers are confined there. Even if each person slept in a single cell in the new jail, there is the possibility of prisoner contact. The majority opinion, moreover, would permit pretrial detainees to be confined in the same cells as some convicts. Therefore, in the present case I agree that the same standards can constitutionally be applied to pretrial detainees in the interest of institutional security.

IX. ACCORDING “RELIEF”

NOT SOUGHT

The defendants have filed no cross-appeal. They have sought no relief from the trial court’s order. On their own motion, my brethren vacate that part of the district court order that directed the jail officials to post the relatively simple list of “Prisoner Rights” set forth in their footnote 17. Even if the district court’s decision to require this notification so that inmates might be aware and jail officials might constantly be reminded of the prisoners’ fundamental rights was clearly erroneous, or even plain error, I do not understand on what authority they act sua sponte. See Nuelsen v. Sorensen, 9 Cir. 1961, 293 F.2d 454, 462 . Cf. Wright v. United States, 8 Cir. 1973, 482 F.2d 600, 610 ; Delancey v. Motichek Towing Service, Inc., 5 Cir. 1970, 427 F.2d 897, 900 ; Strickler v. Pfister Associated Growers, Inc., 6 Cir. 1963, 319 F.2d 788, 791 .

Moreover, I do not understand why my brethren feel called upon to order the district court to remind the jail officials of their duties. Neither party has sought this, either in the trial court or on appeal.

Finally, again of their own volition and not in response to any issue raised on appeal by the defendants, the majority have reviewed in some detail “the tactics used in this case on behalf of the plaintiffs” and expressed both dismay at the manner in which this case proceeded and concern with the “pattern and practice of [plaintiffs’] counsel.” None of these matters were either briefed or argued before us. The district court must assess attorney’s fees and costs in accordance with the standards set forth, in Johnson v. Georgia Highway Express, Inc., 5 Cir. 1974, 488 F.2d 714 . I would leave it to the district judge to make findings and reach conclusions on that subject without assaying trial tactics that were sanctioned by the same trial court that denied all substantive relief to the plaintiffs.

X. CONCLUSION

Those who violate the state’s criminal laws must be punished in accordance with its commands. Society requires protection from those who transgress its laws, and in many instances the only adequate protection is by incarceration. The Constitution accords just desserts to even the most undeserving. “For, if sympathy for violent criminals is misplaced, prudent self-interest as well as moral imperatives require that, while we deal with them firmly, we must also deal with them in ways that are fair and not barbarous.” 3 This utilitarian and moral principle does not stand alone as a predicate for judicial relief; the Constitution provides both warrant and duty for us. Because I believe that the majority have failed to perform that duty with respect to many of the plaintiffs’ rights, I respectfully dissent in those many regards discussed above.

. See Cousins v. City Council of Chicago, 7 Cir. 1972, 466 F.2d 830, 837 , cert. denied, 409 U.S. 893 , 93 S.Ct. 85 , 34 L.Ed.2d 151 ; Guzick v. Drebus, 6 Cir. 1970, 431 F.2d 594, 599 , cert. denied, 1971, 401 U.S. 948 , 91 S.Ct. 941 , 28 L.Ed.2d 231 ; United States v. Baker, 3 Cir. 1966, 364 F.2d 107 , 110 n.4, cert. denied, 385 U.S. 986 , 87 S.Ct. 596 , 17 L.Ed.2d 448 .

The doctrine allowing reexamination of findings of constitutional fact was developed by the Supreme Court in appeals from state court to ensure that federal rights were given a hospitable hearing at the state level. See, e. g., Edwards v. South Carolina, 1963, 372 U.S. 229, 235 , 83 S.Ct. 680, 683 , 9 L.Ed.2d 697 ; Napue v. Illinois, 1959, 360 U.S. 264, 271-72 , 79 S.Ct. 1173, 1178-79 , 3 L.Ed.2d 1217 ; Feiner v. New York, 1951, 340 U.S. 315 , 322-24 & n.4, 71 S.Ct. 303, 307-08 , 95 L.Ed. 295 (Black, J., dissenting); Fiske v. Kansas, 1927, 274 U.S. 380, 385-86 , 47 S.Ct. 655, 656-57 , 71 L.Ed. 1108 . See generally P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and The Federal System 590-610 (2d ed. 1973). Its application in the context of Rule 52, F.R.C.P., presents added difficulties in that *1033 there is no overriding federal concern justifying strict scrutiny of federal findings of fact. On the other hand, such intra-system supervision lacks the constitutional difficulties an inter-court (federal-state) conflict provides.

. I must also conclude that Jones’s individual claims are properly before us, and that he should be entitled to prove his damages on remand. In denying Jones’s motion to appeal in forma pauperis, this court was not necessarily making a determination that the “partial final judgment” dismissing his claims was final for purposes of Rule 54(b), as stated in footnote 2 of the majority opinion. 1 think it far more likely that the motion was denied because, as a denial of injunctive relief, the district court order could be appealed on an interlocutory basis within 30 days under 28 U.S.C. § 1292 (a)(1) and Rule 4(a), F.R.A.P., see Baldwin v. Redwood City, 9 Cir. 1976, 540 F.2d 1360, 1364 , cert. denied, 1977, 431 U.S. 913 , 97 S.Ct. 2173 , 53 L.Ed.2d 223 ; when Jones failed to appeal within that period, he was required to wait until final judgment was entered. That time has arrived, and dismissal of his claims is now subject to review. He, like other members of the class, is entitled to relief.

. Hughes, “American Terror,” a review of Silberman, Criminal Violence, Criminal Justice, New York Review of Books, Jan. 25, 1979, pp. 3-4.