Appendix — Estelle, Corrections Director, Et Al. v. Justice, U. S. District Judge, Et Al.

1 . Supreme Court, U. S.

'% FILLED

IN THE ( DEC 31 1975

‘

;

,

SUPREME COURT OF THE UNITED STATES. —-

OCTOBER TERM, 1975

no, €9~ 928 4

*- * *

W. J. ESTELLE, JR., Directer, Texas

Department of Corrections, et al.

Petitioners

V.

The Hon. WILLIAM WAYNE JUSTICE, U.S.

District Judge for the Eastern District of Texas,

Respondent

x * *

APPENDIX

To Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

* * *

JOHN L. HILL

Attorney General of Texas

DAVID M. KENDALL

First Assistant Attorney General

JOE B.DIBRELL

LONNY F. ZWIENER

ED IDAR, JR.

BERT W. PLUYMEN

Assistant Attorneys General

P. O. Box 12548

Austin, Texas 78711

ATTORNEYS FOR PETITIONERS

FILED

US Ite ee is

BASIL Bit GF hog

APR 2 9%

ROSALIE M. TRAUAN, CLErK

wow Co.)

: Doe be:

IN THE UNITED sTATES DISTRICT couR st S* in

POR THB EASTERN DISTRICT OF TERAS

TYLER DIVISION

DAVID R. RUIZ )

)

Vv. ) CIVIL ACTION NO. 5523

) .

W. J. ESTELLE, DIRECTOR, )

iT A TRUE Copy I CrRTIr

jo od tga or ROSALIE iM. ole 5

RRL U. S. DISTRICT COL eT

EASTEAN DISToicT oF TEXAS

ORDER y a fRartin

DEPUTY

It appearing to the Court that this civil action

and the following civil actions (all of which are pending

in the Tyler Division of this Court), viz: Soto v. Estelle,

No. 5594, Hilliard v. Estelle, No. TY-73-CA-20, Winchester v.

“am

- v. Estelle, No. TY-73-CA-32, Randall v. Estelle, No. TY-73-CA-

a '

103, Pardo v./Estelle, No. TY¥-73-CA-207, and Johnson v.

Estelle, No. TY-73-CA-260, involve common questions of law

,

and fact, accordingly, pursvant to Rule 42(a), F.R.Civ.P.,

it is, sua sponte.

ORDERED that this civil action and the foregoing civil

actions be, and they are horeby, consolidated,

This court having also determined that the publio intorest

will be served by the participation of the United States of

America in the consolidated civil action, it is

ORDERED that the United 6tates of America make an

appearance in the above-entitled and numbered consolidated civil

action as amicus curiac, in ordor to investigate fully the facts

alloged in the prisonoro' complaints, to participate in such

APPENDIX - 1

civil action with the full rights of a party thereto, and to

advise this court at all stages of the proceedings as to any

action deemed appropriate by it. It is further

ORDERED that the Clerk of this Court deliver, forthwith,

by mail or otherwise, copies of this order, as well asp copies

of all pleadings in the above-entitled and numbered conso) idated

civil action, to the Attorney General of the United States, to

the United States Attorney for the astern District of Tomas,

and to the Attorney General of the State of Texas, and to

tho respective petitioners and their appointed counsel, if

any. .

SIGNED and ENTERED this 12th day of April, 1974.

N

(AAA +_\- tn poh ao

NITED STATES LL SU Fa TRO

APPENDIX - é

rm

*

~ wn “—- ~~

—_ -

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DAVID R. RUIZ, ERNESTO R, :

MONTANA, JR., L.D. HILLIARD,

HF RMAN RANDALL, AMADC PARDO, 3

and O.D. JOINNSON, on behalf

of themselves and all other : ’

persons similarly situated,

Plaintiffs,

‘<— vs - No. 5523

CLASS ACTION

W.J. ESTELLE, Director, Texas

Department of Corrections,

Defendant. :

AMENDED COMPLAINT FOR

DECLARATORY JUDGMENT,

INJUNCTION, AND OTHER

APPROPRIATE RELIEF.

Piaintirrs, py tneir counsei, compiain against tne

Gefendant as follows:

1. JURISDICTION

1. This is a civil action seeking declaratory and equitable

relief for the deprivation of plaintiffs' rights, secured and

protected by the Constitution and laws of the United States, by

defendant and his agents, acting under color of state law.

Jurisdiction of this court is invoked pursuant to 28 U.S.C.

§1343(3) and §2201. The claims arise under 42 U.S.C. §1983, and

the Fourteenth Amendment to the Constitution of the United States.

Il. PARTIES

2. Plaintiffs are citizens of the United States and of the

State of Texas. At the times relevant herein, they were, and

still are, inmates of the Texas Department of Corrections. All

were, and some still ore, incarcerated at either the Coffield

APPENDIX 3 ;

Unit, at Tennessee Colony, Texas, or the Eastham Umit av

Weldon, Texas, both located within the Lastern District o!

Texas. j

3. Defendant 1s the Director of the Texas Department of

Corrections, and as such, has general supervision of the Texas

prisons. The acts complained of herein were done by his agents

under his authority.

4. Iil. CLASS ACTION

A. Plaintiffs bring this action pursuant to Rule 23(a) and

(b) (2) F.R.C.P., on behalf of themselves and all other persons

similarly situated, which include the inmates at Coffield and

Eastham Unit of T.D.C. and other Texas prisoners who are

adversely affected by the policies, practices, and acts of the

Gefendant and his agents complained of herein. The class is

so numerous that joinder of all members is impracticable; there

are questions of law and fact common to the class; the claims

of plaintiffs are typical of the claims of the class; and

plaintiffs will fairly and adequately protect the interests of |

the class. In addition, defendant and his agents have acted

or refused to act on grounds generally applicable to the class,

thereby making appropriate declaratory and equitable relief with

respect to the class as a whole.

Iv. CLAIMS

Defendants have deprived plaintiffs of their rights,

privileges and immunities as follows:

5. Defendant has unduly restricted and interfered with

plaintiffs’ opportunity to conduct sealed or privileged corres-

pondence with counsel, the courts and other governmental agencies.

-2-<-

APPENDIX - 4

(a) At least some letters to and from courts, attorneys

and government agencies are delayed, opened, read, copied, re-

corded and/or rejected. In addition, after receipt of letters

‘

from the above sources, prison officials have seized, read, and ,

|

confiscated such correspondence, thereby violating the confi-

dentiality thereof. Other documents related to court proceedings:

have also been unlawfully confiscated.

(b) An additional barrier to the confidentiality of plain-

tiffs' correspondence with courts and attorneys is defendant's 7

failure to provide notary services within secured areas. Accor- !

dingly, legal documents which require notarization cunnot be

scaled by inmates, inasmuch as inmates are required to turn these!

matters in for notarization which is effected outside the pre-

sence of the inmates or forego notarization of such documents. :

(c) Furthermore, inmates who seek redress of grievances |

through means of the legal system or public officials are fre-

quently reprimanded for doing so by selective enforcement of re-

gulations, by receiving harsher disciplinary sentences and by

harassment, verbal or otherwise.

6. Defendant has : aintained and operated a medical care

delivery system which was and is incapable of providing, has

failed to provide and continues to fail to provide plaintiffs

adequate medical care.

(a) The medical staff, facilities, equipment and procedures

of defendants are insufficient to meet the routine health care

needs of plaintiffs. |

(b) The level of dental service maintained by defendant is

unable to meet the routine dental care needs of plaintiffs.

(c) Defendant maintains no professional psychiatric staff

capable of treatment of the inmate population on a regular basis.

— 2

APPENDIX - 5S

(i) Defendant has tailed and continues: to fail to maintain

Suiticien!t professionally trained medical support personnel. Due:

to shortayes of such personnel, defendant has continuously relied’

on unlicensed, untrained and unqualified correctional officers

and other employees, as well as inmates personnel, to perform

clinical and related medical services which should be performed

solely by licensed qualified professionals.

(c) These systematic medical deficiencies have resulted in

instances of actual Inga i tment of inmate health and continue to

pose an actual and potential threat to the physical health of

well-being of plaintiffs.

Ve Defendant has failed to provide plaintiffs the security

safeguards minimally necessary to insure their well-being and

safety.

(a) The security force is understaffed and inadequately

trained and is unable to maintain proper order.

(b) As a consequence of the understaffing of the security

force, more than necessary force is frequently used on inmates.

(c) Staff deficiencies have led to the practice of using

inmates to supervise other inmates. These supervisory inmates

are afforded special privileges by defendants and are punished

for rules infractions less frequently than other inmates. This

has resulted in the abuse of some inmates by “supervising”

inmates.

(ad) Inmates have been and are being subjected to assaults,

rape and homosexual activities by other inmates. Defendant has

failed to protect inmates from such abuses. Consequently,

o@e

APPENDIX - 6

seo

"

inmates are in constant fear for their safety and lives as a

result of defendant's disregard for their basic we! Ue and

protection.

8. The living and working conditions of plaintiffs are

inadequate and dangerous to the health and safety of

plaintiffs.

(a) The physical facilities where plaintiffs are

jetained are overcrowded.

(b) Areas where food is prepared and where plaintiffs

eat present a direct and potential health hazard to plaintiffs

in that such facilities fail to meet applicable minimum

standards.

(c) Plaintiffs' industries and work areas fail to meet

applicable minimum health and safety standard.

9. The foregoing policies, practices, and acts of the

defendant and his agents violate the following Fourteenth

Amendment rights of plaintiffs and the members of their class:

(a) the right to be protected from bodily harm;

(b) the right not to be subjected to crvel and

unusual punishments.

(c) the right to equal protection of the laws;

(d) the right to have reasonable access to the courts. —

‘0. Plaintiffs and the members of their class have been and continue

to be adversely affected and irreparably injured by the fore-

going actions of defendant and his agents. They have no

adcyuate romedy at law.

WHEREFORE, plaintiffs pray that this Court:

— 2

APPENDIX - 7

(a)

(b)

(c)

(qd)

(e)

(f£)

(g)

(h)

(1)

take jurisdiction of this matter;

issue an order that this action may properly be

maintained as a class action pursuant to Rule 23,

F.R.C.P.;

issue a declaratory judgment that defendant and his

agents are violating the rights of plaintiffs and

other members of their class, secured and protected

by the Constitution and Laws of the United States;

preliminarily and permanently enjoin defendant and

his agents from continuing to violate the aforesaid

rights of the plaintiffs and other persons similarly

situated;

order defendant to submit for the approval of this

Court a comprehensive plan for the operation of Tees

prisons, which will protect the aforesaid rights of

the plaintiffs and members of their class;

retain jurisdiction of this cause until the aforesaid

approved plan is technically carried out and

completed;

restrain defendant and his agents from bringing any

reprisals against plaintiffs or any prospective

witnesses who may testify on their behalf, for

bringing this lawsuit or for giving evidence in

support thereof;

order that plaintiffs recover from defendants all

costs of this action, including reasonable attorneys’

fees;

grant plaintiffs and the class they represent all

6 e

APPENDIX - 8

other just and equitable relief.

. "Respect fully submitted,

(ax

A. Ss

WALLACE SETT

10 Columbus Circle

Room 2030

New York, N.Y. 10019

(212) 586-8397

Attorneys for Plaintiff

October 8, 1974

~—

APPENDIX - 9

im THE

ONITED STATES DISTRICT COURT |

POR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

-_--- «— -—- - =e ween = = xX

DAVID R. RUIZ, et al., ’

|

|

|

Plaintiffs, 5 |

Vv. '

!

W. J. ESTELLE, Director, '

Defendant. ' |

ceeeecececeecece eccne g |

MOTION FOR LFAVE TO PILE AMENDED COMPLAINT |

Plaintiffs, by their counsel, move pursuant to Rule 15 (a)

Ped. R. Ciw. P-oc., for leave to file an Amended Complaint herein. |

In support of this motion counsel stetes:

1. This proceeding is 8 consolidation of several pro

se complaints filed by Texas prisoners against officials of the

Texas Department of Corrections, alleging violations of their

feder®l constitutional righte.

2. The Court has appointed counsels Stanley A. Bass,

to represent the indigent prisoners.

3. After some preliminary investigation and research,

plaintiffs’ attorney has prepared an Amended Complaint, brought as |

&8 class action on behalf of all similarly situated Texas prisoners,|

seeking e¢ppropriate declaratory and injunctive relief, against the |

Director of the Teras Department of Corrections, for the alleged

conetitutionel deprivations.

Respectfully subaitted,

bed omits 4. Brae

ANLEY A. BASS ,

WALLACE GOSSETT

10 Columbus Circle. Room 2030

New York, B.Y¥. 10019

Attorneys For Plaintiffs

PPPENQIY - 10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

FILED

TYLER DIVISION US DISIRICT COUR

FASTERN DISTRICT OF MEZA,

UEL , _

DAVID R. RUIZ, et al. ) 19/4

) MURRAY |. HARRIS. CLEeMK

Plaintiffs ) Huy MXKA BATON

) ee

v. )

)

W. J. ESTELLE, Director, ) CIVIL ACTION NO. 5523

Texas Department of )

Corrections ) .

)

Defendant )

)

UNITED STATES OF AMERICA, )

)

Applicant for )

Intervention. )

)

MOTION TO INTERVENE AND_TO

ADD PARTIES DEFENDANT

The United States hereby moves the Court for

leave to intervene as a party plaintiff pursuant to

Rule 24(b)(2) of the Federal Rules of Civil Procedure

and to add as parties defendant the Texas Board of

Corrections, H. H. Coffield, Chairman, James Marvin

Windham, T. Louis Austin, Jr., Robert J. Bacon, M. D.,

Lester Boyd, Joe V. LaMantia, Jr., Mack McLaughiin,

Fred Shield and L. H. True, Members of the Texas

Board of Corrections.

This motion is based on the attached complaint

APPENDIX - ll

in Intervention, the pleadings and other documents on

file in this action, and the attached memorandum.

ROBY HADDEN

United States Attorney

Respectfully submitted,

J. STANLEY POTTINGER

Assistant Attorney General

SD

JBBSE H. QUEEN

Attorney

Department of Justice

Plectin 9 Hectdcecl

PATRICIA GAIL LITTLEFIE

Attorney

Department of Justice

BAO,

CHARLES ORY

Attorney

Department of Justice

APPENDIX - 12

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DAVID R. RUIZ, et al.,

Plaintiffs

UNITED STATES OF AMERICA,

Plaintiff-Intervenor

v.

W. J. ESTELLE, Director,

Texas Department of Corrections;

TEXAS DEPARTMENT OF CORRECTIONS,

H. H. COFFIELD, Chairman,

JAMES MARVIN WINDHAM,

T. LOUIS AUSTIN, JR., ROBERT

J. BACON, M. D., LESTER BOYD,

JOE V. LaMANITA, JR., MARK

McLAUGHLIN, FRED SHIELD,

and L. H. TRUE, Members of the

Texas Board of Corrections,

Defendants

PILED

Uo Ss inSteCT Covel

EASTON DrsiRiC! OF teXAS

Ud |

MURRAY L HAR? 'S CLERK

breviy MYRA BARTON

CIVIL ACTION NO. 5523

Ne ee ae ae ee et et a et et ae a ee et Se ee et a See eet ee ee ee”

COMPLAINT IN INTERVENTION

The United States alleges as follows:

1. This is a consolidated civil action brought

by eight individual inmates of the Texas Department

of Corrections seeking redress of violations of their

rights under the First, Sixth, Eighth, and Fourteenth

Amendments to the Constitution of the United States.

2. This Court has jurisdiction over this

matter under 28 U.S.C. §1343(3), §1345 and §2201.

APPENDIX - 13

3. Defendant W. James Estelle is Director of

the Texas Department of Corrections, Huntsville, Texas,

and under Texas Ann. Stat., Art. 61664. (1970), he is

required to carry out the policies of the Board of the

Texas Department of Corrections and to manage the

affairs of the Texas Department of Corrections and, with

the consent of the Board of the Texas Department of

Corrections, is empowered “to prescribe reasonable

rules and regulations governing the humane treatment,

training and discipline of prisoners" and to provide for

their classification.

4. The defendant Texas Board of Corrections is

composed of nine members and is vested by Texas law

(Texas Ann. Stat., Art. 6166g¢) with the exclusive

management and control of the Texas Department of

Corrections, and is "responsible for the management of

the affairs of the Department of Corrections anu, for the

proper care, treatment, feeding, clothing and management

of the prisoners confined therein." Under Texas law the

Board "shall manage and control the prison system through

the manager [Director] selected by it." The Board is

required “to delegate to such manager authority to manage

the affairs of the prison system, subject to its control

and supervision."

APPENDIX - 14

In addition, the United States has standing

to sue to protect its interests or to carry out its

policies. Kern River Co. v. United States, 257 U.S.

147 (1921); United States v. Fitzerald, 201 F.2d

295 (C.A. 8, 1912); Cotton v. United States, 11 How. 229

(1851); United States v. San Jacinto Tin Company, 125

U.S. 273 (1888); Sanitary District v. United States,

266 U.S. 405 (1925); United States v. Bell Telephone

Co., 128 U.S. 315 (1888); United States v. Rock Island

Centennial Bridge Commission, 230 F. Supp. 654 (S.D.

Ill. 1964).

The United States has a direct, substantial, and

protectible interest in the subject action in the

vindication of the constitutional rights of the inmates

confined to the Texas Department of Corrections. The

United States believes that the public interest, in-

cluding uniformity in prison standards, will be served

by including all prison units in this litigation: Any

independent suit which might be brought by the United

States against officials of the Texas Department of

Corrections would present substantially the same cleims

as are in issue in the subject action. The interest of

the United States in the subject action is sufficient

to warrant intervention.

-3-

APPENDIX - 28

5. Defendants James Marvin Windhan,

T. Louis Austin, Jr., Robert J. Bacon, M. D.,

Lester Boyd, Joe V. LaMantia, Jr., Mark McLaughlin,

Fred Shield and L. H. True ere duly appointed members

of the Texas Board of Corrections and, as such, are :

state officers within the meaning of the Texas

Constitution.

6. The Texas Department of Corrections(heresfter

TDC) operates fourteen adult correctional facilities for

the State of Texas, including two located within the

Eastern District of Texas. Approximately 17,000 persons

are inmates of the facilities operated by TDC. These

facilities are operated and staffed by personnel employed

and discharged by the defendant Director with the approval

of the defendant Board. Such personnel, including the

wardens, have no stat'tory authority and act only with

authority delegated to them by the defendants.

7. Under the Fourteenth Amendment to the United

States Constitution, the defendants owe a duty to each

inmate incarcerated in the correctional facilities

operated by TDC not to deprive such inmate of his life,

liberty or property without due process of law. That

constitutionally mandated duty includes, but is not

limited to, the following:

= 2

APPENDIX - 15

:

| .

The United States believes that this case involves

issues of wide and general public importance and that

the public interest, and the interest of the United

States should be represented.

Finally no party in this subject matter will be

prejudiced by the United States’ becoming a plaintiff-

intervenor, since the order making the United States

amicus curiae held:

This Court having also determined that

the public interest will be served by

the participation of the United States °

of America in the consolidated action,

it is

ORDERED that the United States of America

make an appearance in the above-entitled

and numbered consolidated civil action as

amicus curiae, in order to investigate

fully the facts alleged in the prisoners’

complaints, to participate in such civil

action with the full rights of a party

thereto, and to advise this Court at all

stages of the proceedings as to any action

deemed appropriate by it. [emphasis added]

Under Texas Ann, Stat., Art. 6166g. (1970), the

Texas Board of Corrections is vested with exclusive

management and control of T.D.C., which management is

to be delegated to the Director, subject to the Board's

control and supervision. The United States seeks to

add the Texas Board of Corrections and its members as

defendants because the Director and the Board share

responsibilities under the statute and are proper

parties to this action.

~~ o

APPENDIX - 29

Le

The duty to provide a medical care

delivery system which is accessible

and adequate to meet the medical

needs of all inmates.

The duty to provide living and working

conditions which do not jeopardize the

health and safety of the inmates.

The duty to provide inmates with

reasonable protection from physical

assault.

The duty to permit inmates reasonable

access to the courts and to public

officials for redress of their

grievances.

The duty to supervise and control prison

officials and employees sufficiently to

prevent the systematic imposition of

summary and other cruel and unususl

punishment on inmates and the systematic

denial of due process to inmates.

8. The defendants have subjected inmates to cruel

and unusual punishment by denying to them adequate medical

care in the following ways, among others:

APPENDIX - 16

They have provided only one hospital,

located at Huntsville, to serve all

fourteen correctional facilities and

that hospital has been found by the

Texas Hospitel Association to be

inadequate to meet the association's

standards in that the physical plaent

is outmoded, unsafe and insufficient,

the equipment is insufficient and in

disrepair, the staff is insufficient

in numbers and training and the record

keeping and medical procedures are

unsound.

They have failed to provide any full-

time medical doctors to any of the

correctional facilities other than

Huntsville and have failed to provide

sufficient medical technicians to

staff these institutions, even with

paraprofessionals,on a 24 hour basis.

They have not required the adoption and

implementation of procedures and standards

for the delivery of medical care which

provide for proper diagnosis of medical

APPENDIX - 17

complaints, referral of patients to 1969, the Texas Occupational Safety

appropriate treatment facilities, Board surveyed the prison industries

prescription of appropriate medical at several TDC facilities and reported

treatment and administration of numerous violations of safetw and

~

prescribed treatment under medically health standards. Over all, conditions

sound circumstances. are substantially unimproved.

d. They have permitted inmates and medical b. The defendants have housed inmates in

technicians to perform medical tasks overcrowded quarters, which are injurious

which they are not qualified to perform. to the physical and mental health of the

e. They have permitted correctional officers inmates.

to deny medical care to inmates needing 10. The defendants have subjected inmates to cruel

such care. and unusual punishment by failing to provide them

9. The defendants have subjected inmates to reasonable protection from physical assault, in the

cruel and unusual punishment by providing working and following ways, among others:

living conditions which jeopardize the health and sefety a. They have not required that correctional

of the inmates in the following ways, among others: “personnel be adequately trained and

a. TDC operates an extensive agricultural, supervised and have failed to provide

industrial and construction program

which provides food, clothing, buildings

and some equipment for the prison system,

This program includes various eee of

farming, processing of farm products

and manufacturing. Inmates are required

to work in these farming operations and

industries, but the defendants have not

required that minimumly adequate health

and safety standards be maintained. In

o 6 «

APPENDIX - 18

sufficient correctional personnel to

maintain reasonable security.

They have failed to implement an inmate

classification system, based upon valid

criteria, which would minimize the

likelihood of physical assault by inmates

on other inmates.

-7-

APPENDIX - 19

They have permitted the continued

use of selected inmates, usually called

"building tenders," to control other

ammaetes, Bursci paeCiL ice Lrequentiy has

and does result in physical assaults on

inmates.

They have failed to enforce the require-

ment that TDC employees not use corporeal

punishment on inmates, such as spraying

chemical egents on inmates locked in

cells.

ll. The defendants have allowed interference with

inmates’ attempts to redress their grievances through

the courts and public officials in the following ways,

among others:

They have failed to enforce their

regulation that inmates’ correspondence

with courts and certain public officials

“shall not be opened for inspection or

impeded in its transmission."

They have failed to require that inmates

be provided with a reasonable opportunity

to prepare and submit court documents

and petitions.

They have failed to prevent correctional

officers from taking retaliatory action

against inmates who write letters and

petitions to public officials.

- 8 -

APPENDIX - 2

12. The defendants have not supervised and

controlled prison officials and correctional officers

sufficiently co prevent them from systematically

imposing summary punishment on inmates. For exam le:

frison o:ficiais and correctional

officers have, on more than one

occasion, sprayed a chemical agent

on an inmate who was posing no threat to

the security of the prison and who was

securely locked in his cell. The

defendants have not adopted any policy

or promuigated any regulation concerning

the use of chemical agents on inmates.

Prison officials and correctional officers

routinely impose disciplinary sanctions

involving serious deprivetions of

privileges, including solitary confinement

and loss of good time, without providing

the inmate with advance written notice of

the charge or an opportunity to prepare

a defense. The defendants have adopted

a policy reflected in its regulations

which expressly permits such disciplinary

action to be taken against inmates, without

prior or written notice of the charge.

= 2

APPENDIX - 21

c. Defendants have failed to infors

inmates adequately of what conduct

violates TDC's Rules end Reeulations

and what conduct violstes the local

units’ rules and regulations.

13. The acts, practices and conditions described

in paragraphs 7 through 12, supra, are in violation

of, and have denied inmates of the Texas Department of

Corrections, rights, privileges, end immunities secured

to them by the Constitution of the United States.

14. Unless restrained by order of this Court,

defendants will continue to commit such acts, engage in

such practices and maintain such conditions to the

immediate and irreparable injury of the plaintiff-

intervenor. The plaintiff-intervenor has no adequate

remedy at lew. me

WHEREFORE, the United Stetes prays that the

Court enter an order enjoining the defendants, their

officers, employees, agents, and successors and all

those acting in concert or participation with them

from engaging in any of the acts or practices described

in paragraph 7 through 12 above and more particularly;

from:

1. Failing or refusing to provide inmates

with a medical care delivery system

which is accessible and adequate to

meet their medical needs;

oe Me

APPENDIX - 22

3.

5.

Failing or refusing to provide

living and working conditions which do

not jeopardize the health and safety

of inmates;

Failing or refusing to provide inmates

reasonable protection from physical

assault;

Failing or refusing to permit inmates

reasonable access to the Courts and

to public officials for redress of

Failing or refusing to supervise and

control prison officials and employees

sufficiently to prevent the systematic

imposition of summary and other cruel

and unusual punishment on inmates and

the systematic denial of due process

to inmates. :

e io

APPENDIX - 23

The United States further prays that this Court

grant such other injunctive relief as the needs of FILED

U $ DISTRICT COURT

justice may require together with the cost and dis- IN THE UNITED STATES DISTRICT COURT tastean pistaict oF texas

ieaeinsiten atk Ute annie: FOR THE EASTERN DISTRICT OF TEXAS US ee

TYLER DIVISION MURRAY | HARRIS, CLERK

dteury MYRA BARTOW

DAVID R. RUIZ, ET AL.

V.

CIVIL ACTION NO. 5523

W. J. ESTELLE, DIRECTOR

TEXAS DEPARTMENT OF

CORRECTIONS

ee ee ee eee ee ee ee

UNITED STATES OF AMERICA

ORDER

Came on for consideration the motion of United States

of America for leave to intervene as a party plaintiff pursuant

to Rdle 24(b) (2) of the Fedrral Rules of Civil Procedure, and

Attorney

Department of Justice to add as parties defendant the Texas Board of Corrections,

" H. H. Coffield, Chairman, James Marvin Windham, T. Louis

Austin, Jr., Robert J. Bacon, M.D., Lester Boyd, Joe V. LaMantia,

PATRICIA GAIL LI

Attorney

Department of Justice Texas Board of Corrections, and after due consideration, the

Jr., Mack McLaughlin, Fred Shield and L. H. True, Members of the

court is of the opinion that said motion Bhould be granted.

Accordingly, it is

CHARLES ORY

Attorney

Department of Justice GRANTED, and that the complaint in intervention be accepted by

ORDERED that said motion be, and it is hereby,

the Clerk of the U. S. District Court for filing.

SIGNED AND ENTERED this @%(. day of December, 1974.

. APPENDIX - 25

APPENDIX - 24

—

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION FILED

u $ oNstRIc? COuRT

EASTERN DISTRICT OF TEXAS

DAVID R. RUIZ, et al., VEC 1944

Plaint iffs MURRAY L HARRIS, CLERK

Sen Seas SAEEN

v.

W. J. ESTELLE, Director CIVIL ACTION NO. 5523

Texas Department of

Corrections

De fendant

UNITED STATES OF AMERICA,

Applicant for

Intervention,

Ne ee ee ae a a ae a ee es 8 ee ee 8 8

MEMORANDUM IN SUPPORT OF THE UNITED

STATES’ OTION TO I}:'TERVENE AND

TO ADD PARTIES DEFENDANT

The United Staves, currently amicus curiae in this

consolidated lawsuit, seeks to intervene as plaintiff-

intervenor and to add parties defendants and hereby sub-

mits this Memorandum of Law in Support of our Motion to

Intervene and To Add Parties Defendant.

Sufficient authority for permitting the United

States to intervene in the subject action is found in

Rule 24(b), Federal Rules of Civil Procedure, and in

the inherent authority of the United States, through

its Attorney General, to sue to remedy severe and

widespread deprivations of constitutional rights. The

requirements or Rule 24(b)(2) pertaining to permissive

intervention are clear, The intervening party must

(a) make a timely application; (b) show that his claim

APPENDIX 26

or defense and the main action have a question of lew

or fact in common; and (c) show that the intervention

will not unduly delay or prejudice the original parties.

See, S.E.C. v. United States Realty and Improvement

Company, 310 U. S. 434 (1940); Epstein v. Weiss, 50 F.R.D.

387 (E.D. La. 1970); Teischerd v. Leopold, 342 F. Supp.

299 (D. Vt. 1972); United States v. Fidelity and Deposit

Co., 22 F.R.D. 248 (M.D. Pa. 1958) and Connecticut Union

of Welfare Employees v. White, 55 F.R.D. 481 (D. Conn. 1972).

The consolidated subject action has been pending “or

only a brief period of time; no trial date hae been set

by the Court. Application for intervention by the

United States in this action is not untimely, especially

since we are already in the suit as amicus curise, with

the full rights of a party.

The United States has inherent standing to sue to

enjoin widespread and severe deprivetions of constitutional

rights. In re Debs, 158 U. S. 564 (1895); United States v.

Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D, N.Y. 1970);

United States v. City of Jackson, 318 F, 2nd 1 (C.A. 5,

1963; rehearing denied, 320 F.2d 870 (C.A. 5, 1963); United

States v. United States Klans, 294 F. Supp. 897 (M.D. Ala.

1961); Umited States v. Lassiter, 203 F. Supp. 20 (W.D.

La. 1962), aff'd, 371 U. S. 10 (1962), and Battle and

United States vy. Anderson, 376 F. Supp. 402 (E.D. Okla.

1974).

etfs

APPLNDIX

tw

“

For the foregoing reasons, we respectfully request

that this Court grant the motion of the United States

for leave to intervene in this action and to add as

defendants the Texas Board of Corrections.

Respectfully submitted,

ROBY HADDEN _ J. STANLEY POTTINGER

United States Attorney Assistant Attorney General

CHARLES ORY ‘

PATRICIA GAIL IELD

Attorneys

Department of Justice

Washington, D. C. 20530

APPENDIX - 30

EOWARD W. WADSWORTH

C1eee

Huited States Court of Appeals EKHINIT 7

FIFTH CIRCUIT

TEL 804-568. 65:14

OFFICE OF THE CLERK 600 CAMP STREET

NEW ORLEANS. LA 70130

July 24, 1975

Mr. Murray L, Harris, Clerk

U.S. District Court

P.O.

Box 53°

Tyler, Texas 75701

Dear Mr. Harris:

75-1464 IN RE: W. J. ESTELLE, uw.

Enclosed is a certified copy of an opinion-order this day

issued by the court in the referenced cause which is issued

as and for the mandate.

/ap

enc,

cc:

Messrs. George R. Bedell

Daniel O. Goforth

Mesers. Jack W, Flock

Mike A. Hatchell

Mr. Roby Hadden

Mr. William Bennett Turner

Ms. Gail Littlefield

Mr. J. Stanley Pottinger

Very truly yours,

EDWARD W. WADSWORTH, CLERK

APPENDIX - 31 (a)

480

as well as the wdditional statements, 407

F.2d at O83:

The question of the

nen of insurance was not subinittod te

the jury as an clement of the offense

charged, and appellant contends that

consequently the jury failed to fined a

crucial and jurimbichional clement of

the alleged crimes. As to the aceusa-

tion of having embezzled from a feder-

ally insured institution, appellant is

entirely correct: it was nvcither proved

nor found,

The argument advanced by the panel

opinion that Mrs. Hand knew what she

exmtence vel

was charged with,“* ° ° embezzling

funds from her named employer

* "and hence the “plain and con-

cise statement” requirement of Kule 7c),

F.R.Crim.P. was satisfied—is wide of the

mark.

Mrs. Hand was not on trial in u state

court, where genera! allegations of em-

bezziement from a specified employer

might suffice. Instead she was on trial

in @ court whose jurisdiction was limited

to trying violations of ferleral laws, here

specifically Title 18, U.S.C., Section 657.

Jurisdiction, not affirmatively appearing

from the face of the indictment, wus

simply never present.

As to the second proposition, that re-

gardiess of the shortcomings of the

charge, as laid in the indictment, some-

how a case was made out: in addition to

the quotations, supra, from Part II of

the panel opinion, I turn to an acdditional

statement in that opinion, 497 F.2d at

933:

It is undisputed that the United

States offered no proof that the depos-

its of the Union were insured in the

manner charged.

That was enough to end the matter.

As to the search point covered by

Judge Dyer’s dissent, the majority labors

mightily to salvage a patently unconsti-

tutional search and seizure. This ad hoc

approach serves the purpose, in addition

to preserving Mrs. Hand's conviction, of

approving unbelievably sloppy police

work

516 FEDERAL REPORTER, 24d SERIES

As to Part Il, to whieh thes ch

directed, incredibly ineffiewnt and in vuf-

fievent pleading and proof by a United

States Attorney, or perhaps: bis assistant,

while certainly not approved, os

demned cither

reason for this court to reseue thes preon-

tleman.

anim

nel con-

Ido not perceive a valued

That Mrs. Hand may escape from pun-

ishment is overshadowed bere by more

important considerations.

ance by investigators and prosecutors

should not puss muster unscathed and

uncensured on the basis of an ad homi-

nem approach that guilt of some offense

is clear from the record. This miscon

ceives our prime function of reviewing

errors of law | suggest also that ocea-

sional merited criticism of police and

prosecutors is beneficial to the advance-

ment of good order and discipline

Efficient crime detection and punish-

ment is not advanced but is retarded

when we place precedents such as to-

day's in the books. It will return to vex

us on another day.

Poor perform.

With deference, I dissent from the ma-

jority opinion on the basis of these views

as to Part I), as well as with respect te

the unconstitutional search and seizure,

so convincingly explicated by Judge

In re W. J. ESTELLE, Jr., Director,

Texas Department of Corrections, et

al., Petitioners.

No. 75-1464.

United States Court of Appeals,

Fifth Circuit

July 24, 1975.

Director of the Texas Department

of Corrections filed an original proceed-

ing for a writ of mandamus or prohili-

APPENDIX - 31 (b)

IN RE ESTELLE 481

Cite an OF 2d Is0 (1975)

‘

tien secking to prevent further participa-

tion by the United States as amicus curi-

ac or plaintiff-intervenor in a civil rights

action brought against the Department

by state prison inmates. The Court of

Appeals, Tuttle, Circuit Judge, held that

even if the United States lacked the req-

uisite “interest” in the subject litigation

as defined by federal intervention rules,

and even if the trial court thus abused

its discretion in allowing the United

States to intervene, the Director of the

Department was not entitled to an ex-

traordinary writ, since he failed to dem-

onstrate any hardship, let alone any ir-

reparable harm, that had occurred or

was likely to occur immediately, and

since there was therefore no reason to

ignore the rule of finality and the clearly

established mode of review for interlocu-

tory orders of the type in question.

"Petition denied and stay vacated.

Godbold, Circuit Judge, filed an

opinion concurring in part.

1. Courts @#=404(1)

An extraordinary writ under the All

Writs Act is a drastic remedy that must

not be used te regulate the trial court's

judgment in matters properly left to its

sound discretion, but that may be availa-

ble to confine the trial court to sphere of

its discretionary power. 28 USCA.

§ 1651(a).

2. Courts @404(1)

An extraordinary writ under the All

Writs Act may be appropriate to prevent

a trial court from making a diseretionary

decision where a statute effectively re-

moves the decision from the realm of

discretion. 28 U.S.C.A. § 1651(a).

3. Courts 26

Certain diseretionary acts lie within

the inherent authority of trial court, de-

spite the lack of specific authorization by

statute or rule.

4. Prohibition @3(1)

Even if the United States lacked the

requisite “interest” in the subject litiga-

tion as defined by federal intervention

rule, and even if the trial court thus

516 F 26-33

abused its diseretion in allowing the

United States to intervene in civil rigghts

action brought by inmates against the

Texas Department of Correetions, the

Director of the Department was not en-

titled to an extraordinary writ, since he

failed to demonstrate any hardship, bet

alone any irreparable harm, that had oc-

curred or was likely lo occur immediate-

ly, and since there was therefore no rea-

son to ignore the rule of finality and the

clearly established mode of review for

interlocutory orders of the type in ques-

tion. 28 USCA. §& 1651(a); Fed. Rules

Civ.Proc. rule 24(b\2), 28 U.S.C.A.

5. Mandamus o4(1)

Mandamus does not run the gaunt-

let of reversible errors and may not be

used to thwart the congressional policy

against piecemeal appeals. 28 U.S.C.A.

§ 1651(a).

6. Courts @=405(12.7)

An order allowing intervention is in-

terlocutory and may not be appealed im-

mediately.

7. Courts @=406.1(12)

Proper remedy for review of an or-

der allowing intervention is appeal from

the final judgment.

8. Mandamus 1

Even the expense and inconvenience

of a trial as @ prerequisite to review dovs

not justify the issuance of mandamus

without more. 28 US.C.A. § 1651(a).

9. Mandamus @3(1)

Complaint made by the Director of

the Texas Department of Corrections,

who sought an extraordinary writ to

prevent further participation by the

United States as amicus curiae or plain-

tiff-intervenor in civil rights action

brought by inmates against the Depart-

ment, ax to the scope and cost to him of

the discovery seught by the United

States in the lilyation was premature,

since the trial court had yet to rule on

the Director’s motions to limit and pre-

vent certain aspects of the inquiries pro-

posed by the United States and since the

federal rules provide a number of

grounds for limiting discovery and pro-

APPENDIX - 32

482 516 FEDERAL REPORTER, 2d SERIES

Lecting parties from unreasonable inves-

ligations and inquiries, 2 USCA.

§ 1651(a); Fed. Rules Civ.lroc. rule 2c),

2 USCA.

John L. Hill, Atty. Gen. of Tex.,

George R. Bedell, Daniel O. Goforth,

Asst. Attys. Gen., Austin, Tex., for peti-

tioner.

Jack W. Flock, Mike A. Hatchell, Tyl-

er, Tex., William Bennett Turner, San

Francisco, Ca!., for David Ruiz and oth-

ers.

Roby Hadden, U. S. Atty., Tyler, Tex.,

Gail Littlefield, Office of Public Accom-

modation & Facilities, J. Stanley Pot-

tinger, Asst. Atty. Gen., Civil Rights

Div., Dept. of Justice, Washington, D. C.,

for Public Accommodation & Facilities.

On Petition for Writ of Mandamus or

Other Extraordinary Relief.

Before TUTTLE, GODBOLD and

MORGAN, Circuit Judges.

TUTTLE, Circuit Judge: * :

This is an original proceeding for a

Writ of Mandamus or of Prohibition

against the Hon. William Wayne Justice,

United States District Judge for the

Eastern District of Texas, Tyler Division.

Petitioner W. J. Estelle, Director of the

Texas Department of Corrections (TDC),

secks a Writ, pursuant to the All Writs

Act, 28 U.S.C. § 165i(a), to prevent the

further participation by the United

States as amicus curiae or pluintiff-inter-

venor in Ruiz v. Estelle, No. 5523 (W.D.

Tex., Tyler Div.). The petitioner alleges

that “the trial court abuseld] its discre-

tion when it permitted the United States

to intervene in Ruiz” and prays for a

*This opinion through Pait A of Il infra is

ayrerd to by Judge Morgan. The part of this

opinion under heading B represents unly the

separate views of Judge Tuttle

1. The gravamen of the emended complaint is

two-fold: it alleges that the TDC subjects in-

mates to cruel and unusual punishment (by

inadequately providing for their personal se-

APPENDIX

Writ orderings the trial court to dismiss

the United States from the case

Over three years ago, David Ruiz and

seven other inmates of the Texas

Department of Corrections filed suits un-

der 42 U.S.C. § 1983 complaining that

the TDC had violated their constitutional

rights in several ways and asking for

injunctive and declaratory relief. The

trial court determined that the cases in-

volved common questions of fact and

law, and ordered that the cases be con-

solidated pursuant to Rule 42(a), FR.

Civ.l’., into a single civil action under

the style of Ruiz v. Estelle.

The trial court appointed counsel to

represent the plaintiffs,and granted the

plaintiffs’ motion six months ago to file

an amended complaint. The court fur-

ther ordered the case to procee:! as a

class action, pursuant to Rule 23(h)\2),

F.R.Civ.P., but deferred definition of the

class.

Between the filing of the original com-

plaints and the filing of the amended

complaint, the court ordered the United

States to appear in the case as amicus

curiae “{i)n order to investigate fully the

facts alleged in the prisoners’ complaints,

to participate in such civil action with

the full rights of a party thereto, and to

advise [the] court at all stages of the

proceedings as to any action deemed ay-

propriate by it.”

On December 6, 1974, the trial court

granted the motion of the United States

to intervene and ordered its complaint in

intervention filed! In its capacity as

plaintiff-intervenor, the United States

has commenced substantial discovery

In acklition to serving notice of deposi-

tions and to propounding interrogatorics,

the United States has a pending request

curity and safety, by failing to provide muin-

mally adequate medical care, and by forcing

them to live and work under unsafe cond-

ticns), and that the TDC deprives its inmates

of Due Process of Law by interfering with

their access to lawyers and the courts (by im-

peding communications and punishing such

communications).

- 33

IN RE ESTELLE 48:5

Cie an 516 F 2d 1 C1NTD)

pursuant to Rule 4, F_RCiv.?., wo in-

spect the TDC facilities in question and

to interview inmates and employees?

The petitioner moved to dismiss the

United States as amicus curiae and as

plaintiff-intervenor on January 30, and

on February 5 to stay participation by

the United States in the case pending a

determination of its status. The trial

court denied the petitioner's motions aft-

er a hearing and further denied a re-

quest to certify an interlocutory appeal

of the ruling pursuant to 28 USC.

§ 1292%(b).

Thereafter on February 18, the peti-

tioner filed a petition in this Court for a

Writ of Mandamus and/or other extraor-

dinary relief to prevent further partici-

pation by the United States in the case,

and on February 28 this Court stayed

‘fa}il proceedings involving or initiated

by the United States” pending disposi-

tion of the petition. The case was set

for argument at an expedited hearing.

The petitioner claims that the trial court

abused its discretion under Rule 24(1)\2),

F.R.Civ.P., by permitting the United

States to intervene in the case and that

a Writ of Mandamus or Prohibition

should be granted to bar further partici-

pation by the United States.

Il.

A.

* [1-3] The prerequisite standards for

issuing an extraordinary Writ under the

All Writs Act have been frequently

rehearsed, although their meaning is

sometimes conceptually elusive. See

Bell, The Federal Appellate Courts and

the All Writs Act, 23 Sw.L.J. 858, 862 67

(1969). However, the standard we set

2. The petitioner has vigorously opposed the

pending inspection. On Jan. 17. 1975, he 1s-

sued a directive to all wardens of the variwus

TDC units prohibiting interviews of employees

by any agent of the United States Department

of Justice He opposed interviews and inspec

tions on the ground that they would jeopardize °

“the security of the inmates, personne! and

prison facilities.” (Now, in this proceeding.

APPENDIX -

out ten years ago in Miller v. Connally,

354 F.2d 206, 208 (5th Cir. 1965), is still

applicable as a general rule Usxlay:

“The Writs of Mandamus and Prohi-

bition are granted sparingly Such

writs are ‘reserved for really extraor-

dinary causes,” Ex Parte Fuhey, 432

U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed.

2041, 2043 (1947), and should be issued

only when the right to such relief is

‘clear and _ indisputable.’ United

States ex rel. Bernardin v. Duell, 172

U.S. 576, 582, 19 S.Ct. 286, 43 L. Fal.

559, 561 (1899). To some extent they

are supervisory in nature and are used

‘w confine an inferior court to a law-

ful exercise of its preseribed jurisslic-

tion or to compel it to exercise its au-

thority when it is its duty to do so.’

Roche v. Evaporated Milk Assn., 319

U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed.

1185, 1190 (1943). They are not to be

used as a substitute for an appeal, or

to ‘control the decision of the trial

court’ in discretionary matters. Bank-

ers Life & Cas. Co. v. Holland, 346

U.S. 379, 383, 74 S.Ct. 145, 148, 98

L.Ed. 106, 111 (1953)."

The Writ is thus a “drastic remedy,”

Will v. United States, 389 U.S. 90, 104,

88 S.Ct. 269, 278, 19 L.Ed.2d 305 (1967),

that must not be used to regulate the

trial cour.’s judgment in matters proper-

ly left to its sound discretion, but that

may be i vailable to “confine the lower

court to the sphere of its discretionary

power,” /d. No court has ever precisely

defined “sphere of discretionary power,”

but it is clear that an extraordinary Writ

may be appropriate to prevent a trial

court from making a discretionary deci-

sion where a statute effectively removes

the decision from the realm of discretion.

Cf. SEC. v. Krentzman, 397 F.2d 5!

(5th Cir 1968)?

the director further complams that the inter

views and inspections would be unreasonably

burdensome and expenswe to the 1DC) The

trial court has not yet ruled on the matter

3. This is not to say, of course. that the tral

court may only exercise discretionary judg-

ment where a rule or statute specifically au-

thorizes it to do so. Certain discretionary acts

34

484 516 FEDERAL REPORTER, 2d SERIES

The petitioner contends here that the

trial court “abused its diseretion” by al-

lowing the United States to intervene

permissively in Ruiz under Rule 24()2),

F.RCiv.P. (quoted below) In essence,

the petitioner's argument is that while

Rule 24(bX2) empowers the trial court to

allow permissive intervention at its dis-

cretion, it does not allow the trial court

to allow intervention by a litigant who

does not manifest the requisite “inter-

est” in the litigation as defined by the

Rule. .

[4-7] However, even were we to hold

that the United States lacked a requisite

interest within the meaning of Rule

24(bK2) and therefore that the trial

court had abused its discretion by allow-

ing intervention, the petitioner would

not automatically be entitled to the ex-

teaordinary Writ he secks. “Mandamus,

it must be remembered, does not ‘run

the gauntlet of reversible errors’ Bank-

ers Life & Cas. Co. v. Holland, 346 US.

379, 382, 74 S.Ct. 145, 147, 98 L.Ed. 106

(1953)." Will v. United States, supra,

389 U.S. at 104, 88 S.Ct. at 278 The

Writ “may not be used to thwart the

congressional policy against piecemeal

appeals,” Id. An order allowing inter-

vention is interlocutory and may not be

appealed immediately. See Van Hoomis-

sen v. Xerox Corp., 497 F.2d 180 (9th Cir.

1974); Wright & Miller, Fed.Prac. and

Procedure: Civil § 1923. The proper

remedy for review of such an order is

appeal from final judgment. See, e.g.

S.E.C. v. United States Realty & Im-

provement Co., 310 US. 434, @ S.Ct.

1044, 84 L.Ed. 1293 (1940); Stell v. Sa-

vannah-Chathorn County Board of Falu-

cation, 333 F.2d 55 (5th Cir. 1964), cert.

denied sub nom. Roberts v. Stel!, 379 US.

933, 85 S.Ct. 332, 13 L.Fal.2d 344 (1964).

Were we to grant the Writ sought in this

proceeding, we would be circumventing

the rule of finality and subverting well-

le within the inherent authority of the trial

court, despite the lack of specific authorization

by statute or rule. See, ¢g., Harris v. Nelson,

394 US. 286, 89 S.Ct. 1082, 22 L.Ed2d 281.

reh. denied, 394 U.S. 1025, 89 S.Ct. 1623, 23

L Ed 2d 5O (1969), where the Supreme Court

established lines of appellate review in

matters of this sort.

[8,9] It is no answer for the petition-

er to argue that participation by the

United States in Ruiz will result in bur-

densome and expensive discovery. In

the first place, even the expense and in-

convenience of a trial as a prerequisite

to review has been held not to justify

the issuance of mandamus without morc.

Roche v. Evaporated Milk Assn, 219

U.S. 21, 30 31, 68 S.Ct. 938, &7 LFA.

1185 (1943); United States Alkali Assn

v. United States, 325 U.S. 196, 202 203,

65 S.Ct. 1120, 89 L.Ed. 1554 (1945). In

the second place, moreover, the claim of

hardship of which the petitioner com-

plains here is either unexceptionable or

premature. It is unexceptionable be-

cause it is no more than the full and

vigorous discovery that a large, system-

wide class action anticipates. In any

event, the petitioner's complaint as to

the scope and cost to him of the dis-

covery sought by the United States is

premature, because the trial court has

yet to rule on the petitioner's motions to

limit and prevent certain aspects of the

enquiries proposed by the United States.

The Federal Rules of Civil Procedure,

especially Rule 26(c), provide a number

of grounds for limiting discovery and

protecting parties from unreasonable and

unduly burdensome investigations and

enquiries. Yet the petitioner has «e-

clined to invoke the panoply of protec-

tion offered by Rule 26(c), and instead

has sought interlocutory review through

the All Writs Act. This failure to in-

voke protection available in the district

court makes the alleged hardship specu-

lative, if not ephemeral, and only serves

to underscore the dangers of truncating

litigation hy resort to extraordinary in-

terlocutory review. In short, the peti-

tioner has failed to demonstrate any

hardship, let alone any irreparable harm,

held that the district court had inherent au-

thority to compel answers to interrogatones in

habeas corpus proceedings, and thus that

mandamus would not lie to prevent the district

court from so ordenng

APPENDIX - 35

IN KE ESTELLE 485

Che as 516 Ftd 1) (NTS)

that has occurred or is likely to occur

immerliately. We see no reason to ig-

nore the rule of finality and the clearly

established modes of review for orders of

the type in question.

Judge Morgan concludes that the peti-

tion should ‘e denied for the reasons

outlined above. While | agree that the

petition should be denied, I believe firm-

ly—because the petition raises an impor-

tant question of first impression, and a

question of the scope of the trial court's

power under the Federal Rules of Civil

Procedure—that it is appropriate to

reach the merits of the question rather

than resting the decision only on the rea-

sons discussed above. Cf. Schlagenhauf

v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234,

13 L.Ed.2d 152 (1964); and see, general-

ly, Note, Supervisory and Advisory Man-

damus Under the All Writs Act, 86

Harv.L.Rev. 595 (1973).

Rule 24(b\2), F.R.Civ.P., provides:

“Upon timely application anyone

may be permitted to intervene in an

action: * * * (2) when an appii-

cant’s claim or defense and the muin

action have a question of law or fact

in common. When a party to an ac-

tion relies for [a] ground of claim or

defense upon any statute or executive

order administered by a federal or

state governmental officer or agency

or upon any regulation, order, require-

ment, or agreement issued or made

pursuant to the statute or executive

order, the officer or agency upon time-

ly application may be permitted to in-

tervene in the action. In exercising

its discretion the trial court shall con-

sider whether the intervention will un-

duly delay or prejudice the adjusica-

tion of the rights of the original par-

ties.” [Emphasis added.)

The “claim or defense” portion of the

rule has been construed liberally, and in-

4 28 U.S.C. § 517 provides in pertinent part:

“The Solicitor General, or any other offi-

cer of the Department of Justice, may be

sent by the Attorney General to any State or

deed the Supreme Court has said that it

“plainly dispenses with any requirement

that the intervenor shall have a direct

personal or pecuniary interest in the sub-

ject of the litigation.” SEC v. United

States Realty & Improvement Co., supra,

310 U.S. at 459, 6 S.Ct. at 1055, #4

L.Ed. at 1293. See also Textile Workers

Union of America, CIO v. Allendale Co.,

96 U.S.App.D.C. 401, 226 F.2d 765 (D.C.

Cir. 1955); United States v. Local 638,

Enterprise Assn., Etc., 347 F.Supp. 164

(S.D.N.Y.1972). Two distinguished com-

mentators have observed that “it aj-

pears thet the intervenor-by-permission -

does not even have to be a person who

would have been a proper party at the

beginning of the suit . ." Wright

& Miller, supra, § 1911. See also Shapi-

ro, Some Thoughts on Intervention Be-

fore Courts, Agencies, and Arbitrators,

81 Harv.L.Rev. 721, 732 36 (1968).

The United States, acting as respon-

dent in this proceeding pursuant to Fifth

Circuit Local Rule 22, contends that it

satisfies the requirements of Rule

24(b\X2), and thus that the trial court

acted within the sphere of its diseretion-

ary power in permitting it to intervene,

on three grounds: 1) that it falls within

the express language of the Rule, 2) that

it has inherent authority to participate

in litigation involving its interests (e. ¢.,

In Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39

L.Ed. 1092 [1895]}), and 3) that 28 U.S.C.

§ 517° provides a general statutory au-

thorization for such participation. Be-

cause I agree with the United States on

the first ground, I would find it unneces-

sary to reach the other two grouncis.

The original complaint in this case, as

well as the amended complaint and the

complaint of the United States in inter-

vention, were all grounded on 42 U.S.C.

§ 1983, which provides:

“Every person who, under color of

any stutute, ordinance, regulation, cus-

tom, or usage, of any State or Territo-

district in the United States to attend to the

interests of the United States in a suit pend-

ing in @ court of the United States, or in a

court of a State * * *”"

APPENDIX - 36

486 516 FEDERAL REPORTER, 2d SERIES

ry, subjects, or causes to be subjected,

any citizen of the United States or

other person within the jurisdiction

thereof to the deprivation of any

rights, privileges, or immunities se-

cured by the Constitution and laws,

shall be liable to the party injured in

an action at law, suit in cquity, or

other proper proceeding for redress.”

§ 1983 thus provides for private relief in

civil actions from the deprivation of

rights secured by the Constitution and

its laws. The protection from depriva-

tion of civil rights is not confined solely

to civil redress, however; §§ 241 and 242

of Title 18 of U.S.C. provide for criminal

penalties for the deprivation of such

rights. The criminal statutes provide:

§ 241. Conspiracy against rights of

citizens.

* If two or more persons conspire to

injure, oppress, threaten, or intimidate

any citizen in the free exercise or en-

joyment of any right or privilege se-

cured to him by the Constitution or

laws of the United States, or because

of his having so exercised the same;

* * © They shall be fined not more

than $10,000 or imprisoned not more

than ten years, or both; and if death

results, they shall be subject to impris-

onment for any terms of years or for

life.

§ 242. Deprivation of rights under

color of law.

Whoever, under color of any law,

statute, ordinance, regulation, or cus-

tom, wilfully subjects any inhabitant

of any State, Territory, or District to

the deprivation of any rights, privileg-

es, or immunities secured or protected

by the Constitution or laws of the

United States, or to different punish-

ments, pains, or penalties, on account

of such inhabitant being an alien, or

by reason of his color, or race, than

are prescribed for the punishment of

citizens, shall be fined not more than

$1,000 or imprisoned not more than

one year, or both; and if death results

shall be subject to imprisonment for

any term of years or for life.

The conceptual overlap of the civil and

criminal statutes is obvious: they are

both aimed, virtually by the same opera-

tive language, at redressing the depriva-

tion of civil rights under the color of

slate law. Indeed, as we have said be-

fore, the criminal and civil statutes are

in pari materia. Baldwin v. Morgan, 251

F.2d 780, 789 (5th Cir. 1958). See also

Picking v. Pennsylvania R. Co., 151 F.2d

240, 248 48, rvh. denied, 152 F.2&i 753

(3rd Cir. 1945), cert. denied, 322 U.S. 776,

68 S.Ct. 38, 92 L.Ed. 361 (1947);

McShane v. Moldovan, 172 F.2i 1016,

1020 (6th Cir. 1949). See also State of

Arkansas v. Central Surety & Ins. Corp.,

102 F.Supp. 444, 448 (W.D.Ark.1952).

The effect of the overlapping coverage

of these statutes is to grant power if not

to place a duty on the United States to

prosecute, with the criminal sanction, the

same deprivations of rights of which the

TDC inmates complain in their civil ac-

tion. However, it is extremely doubtful

that criminal penalties would be effec-

tive, or even fully adequate, to vindicate

the coverage promised by §§ 241 and

242. The complaints allege widespread,

systemic and systematic deprivations of

civil rights; many of the alleged abuses,

such as the inadequacy of medical treat-

ment and of housing and working condi-

tions, are the products of poor facilities

and insufficient allocation of resources to

mect minimal prisoner needs. The crim-

inal sanction is singularly inappropriate

in these instances, because it reaches

only the individual or individuals at-

tached to the facility and not the root of

the deprivation—the facility itself.

Even where the criminal sanction reach-

es those responsible for the policy imple-

mentation and administration that per-

petuates inadequate facilitics and condi-

tions, penalties guarantee only that the

specific individual in question will not

continue so to act; they fail to insure

that no one will act, or be placed in a

position to act, in such a way as to con-

tinue deprivation of rights by the main-

tenance of constitutionally inadequate

facilities. Were the United States to be

limited to prosecutions under §§ 241 and

APPENDIX - 37

IN RE ESTELLE 487

Cie an 516 F 2d 40 (1075)

242 to relieve such deprivations of rights,

enforcement of the Congressional protoc-

tion embodied in the statutes would he

reduced to isolated and seriatim reme-

dies that would barely scratch the sur-

face of such constitutional infirmitics as

are alleged to exist here. I decline, as

the Supreme Court did in United States

v. Republic Steel Corp., 362 U.S. 482,

492, 80 S.Ct. 884, 890, 4 L.Ed.2d 903

(1960) to impute “to Congress a futility

inconsistent with the great design of this

legislation.” Instead, I helicve that

where “criminal liability [is] inadequate

to ensure the full effectiveness of the

statute which Congress had intended,”

Wyandotte Co. v. United States, 389 US.

191, 202, 88 S.Ct. 379, 386, 19 L.E4.2d

407 (1967), the United States may seck a

civil “remedy that ensures the full effec-

tiveness of the Act.” /d., 389 U.S. at 204,

88 S.Ct. at 387.

The principle of permitting civil relief

where criminal sanctions are inadequate

or ineffective is deeply rooted in the

common law. Cf. Texas & Pacific Ry. v.

Rigsby, 241 U.S. 38, 38-40, 36 S.Ct. 482,

60 L.Ed. 874 (1916). See also J. 1. Case

Co. v. Borah, 3T7 U.S. 426, 84 S.Ot. 1555,

12 L.Ed.2d 423 (1964). It is “in accord-

ance with [the] general rule of the law

of torts. See Restatement (Second) of

Torts § 286.” Wyandotte Co. v. United

States, supra, 389 U.S. at 202, 88 S.Ct. at

386. There is no reason to deprive the

United States, and those whose rights it

5S. I note that today's result is consistent with

the practice of several district courts in this

Circuit which have invited the United States to

act as amicus curiae or have permitted its par-

ticipation as plaintiff-intervenor in suits involv-

ing alleged system-wide health facilities. See

1. Prison Cases: Hooks v. Wair -right, 352

F Supp. 163 (M.D.Fla.1972); Gates v. Collier,

349 F.Supp. 881 (N.D.Miss.1972), affd 501

F.2d 1291 (Sth Cir. 1974); Newman v. Ala-

bama, 3449 F.Supp. 278 (M.D.Ala.1972);, aff'd

503 F.2d 1320 (Sth Cir. 1974), cert. denied, - -

U.S. —-, 95 S.Ct. 1680, 44 L.Ed.2d 102 (April

28, 1975); Costello v. Dugger, 353 F Supp.

1324 (M.D.Fla.1972); Il. Hospital Case: Wyatt

v. Stickney, 334 F.Supp. 1341 (M_D.Aia.1971),

344 F.Supp. 373 (M.D.Ala.1972), 344 F Supp.

387 (M.D.Ala.1972), aff'd 503 F.2d 1305 (5th

Cir. 1974). Participation by the United States

is responsible to protect, of the benefit

of the rule. Id.

I would hold, therefore, that the Unit-

ed States was entitled to seck civil relief

in Ruiz based on the scope and the man-

date of the protection guaranteed hy

analogous criminal statutes, and thus

that the “claim” of the United States,

within the meaning of Rule 24(b\2), F.R.

Civ.P., was not only “common” but iden-

tical to that asserted by the original pro

se plaintiffs.. Consequently, the trial

court acted within the “sphere of [its]

discretionary power” in permitting the

United States to intervene permissively

pursuant to the Rule’

Accordingly, the petition for a Writ of

Mandamus and/or other extraordinary

relief is denied and the stay of proceed-

ings in Ruiz v. Estelle entered by tais

Court on February 28 is vacate:l.

It is so ordered.

GODBOLD, Circuit Judge (concurring

in part):

I concur in the conclusion in Part II of

Judge Tuttle’s opinion that mandamus

should be denied. My analysis is, how-

ever, slightly different.

While petitioner employs the rubric of

abuse of discretion it seems to me that

this case does not fall neatly within that

category. Rather petitioner's basic con-

tention is that as a matter of lew (and

has been appropriate in these cases not only to

vindicate the federal interests we have out-

lined above, but to insure that indigent plain-

tiffs receive the quality of legal representation

commensurate with the rights of which they

claim they have been deprivec. | cannot ig-

nore the fact that prisoners and mental pa-

tients are almost invariably indigents who are

represented by unpaid or low-paid appointed

counsel lacking the means and resources com-

pletely to develop their claims. Without the

participation of the United States, meritorious

claims might fail for sheer lack of legal man-

power. | would not be comfortable with the

obvious result—that only minor constitutional

deprivations on a small scale could be success- .

fully vindicated, while wide-spread, multifacet-

ed deprivations went uncured due simply to

the awesome magnitude of their evil.

APPENDIX - 38

488 516 FEDERAL REPORTER, 2d SERIES

net as a matter of diseretion granted to

the court under Rule 24)! the District

Court was required to deny the petition

of the United States to intervene. |

would phrase that matter of jaw as be-

ing the question of whether the United

States had the requisite interest to satis-

fy Rule 24. This threshold question of

law is decided one way or the other like

any other question of law, with no dis-

cretion involved. If the court decided

that the government did possess the, nec-

essary interest, then the discretion pro-

vided by Rule 24 would come into play.

Thus the issue is not the triai judge's

range of discretion, see S.E.C. v. Krentz-

man, 397 F.2d 55 (CA5, 1968), but an

alleged error of law antecedent to any

exercise of discretion. The coincidental

existence of diseretion in Rule 24 should

net lead us to review by mandamus the

antecedent question of law under the

abuse of discretion rubric. A ruling ona

question of law may be challenged as so

egregiously erroneous that the court's

action should be deemed a usurpation of

power. See United States Alkali Exp.

Asso. v. United States, 325 U.S. 196, 65

S.Ct. 1120, 89 L.Ed. 1554 (1945); Schla-

genhauf v. Holder, 379 U.S. 104, % S.Ct.

274, 13 L.Ed.2d 152 (1964). Such an ex-

tremely bad judicial decision might justi-

fy mandamus under the rubric of “usur-

pation.” De Beers Consol. Mines v.

United States, 325 U.S. 212, 65 S.Ct.

1130, 89 L.Ed. 1566, 1572 (1945). The

question presented here is a close one.

The trial judge's decision, if crroncous,

was not so egregious as to constitute a

usurpation of power.

Morcover, to the degree that usurpa-

tion may turn not on the closeness of the

legal question but rather on the adverse

effects ‘on the aggrieved party, cf, De

Beers Consol. Mines, supra, petitioner

here is suffering no consequences of the

type and magnitude that should cause us

to exercise our power to issue extraordi-

nary writs. Petitioner is in court as a

defendant, and presumably he must go

1. That discretion goes to the convenience of

the parties, the smooth functioning of the

-

through trial in any event. While he

objects to being subjected to discovery at

the behest of the United States, the oth-

cr parties plaintiff unquestionably have

the identical right, though possibly not

the same means and manpower, to pur-

sue discovery.

Whatever the ultimate decision on the

merits of this case, the question of the

propriety of intervention by the United

States can be considered on appellate re-

view in the usual course of litigation.

I agree that interference by manda-

mus at this stage of these proceedings

would be improper.

NATURAL RESOURCES DEFENSE

COUNCIL, INC,, Project on Clean

Air, Save America’s Vital Environ-

ment, Inc., Janey Weber and Susanne

Allstrom, Petitioners,

v.

ENVIRONMENTAL PROTECTION

AGENCY, Respondent.

No. 72-2402.

United States Court of Appeals,

Fifth Circuit.

July 28, 19756.

Petition for Review of an Order of the

Environmental Protection Agency (Geor-

gia Case).

Richard F. Ayres, Washington, D. C.,

Ogden Doremus, Savannah, Ga., for peti-

tioners.

Russell E. Train, Administrator, Envi-

ronmental Protection Agency, Kent Friz-

zell, Asst. Atty. Gen., Edmund B. Clark,

John D. Helm, Attys., Dept. of Justice,

courts, the fairness of intervention to each of

the parties, and like factors.

APPENDIX - 39

Muited States Court of Appeals

FIFTH CIRCUIT

EOWARDO W. WADSWORTH

600 CAMP STREET

OFFICE OF THE CLERK

NEW ORLEANS, LA. 70130

TELEPHONE 804-889-6814

October 6G, 1975

RECEIVED

UCi 9 1975

EEO WERENT DIYS 8H

ATTOAHEY GENERAL'S OFFICE

TO ALL COUNSEL OF RECORD

No, 75-1464 IN RE: W.J. ESTELLE, JR.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition( ) for rehear-

ing on banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

wCfewe H thetut-

Deputy Cierk

CC: vr, John L. Hill

Messrs. George R. Bedell

Daniel O. Goforth

Mr. William Wayne Justice

Messrs. Jack W. Flock

Mike A. Hatchell

Mr. Roby Hadden

Mr. William Bennett Turner

Ms, Gail Littlefield

Mr. J. Stanley Pottinger

APPENDIX - 40

——

get St tS

vet ,WoaTH

FIST... CIRCUIT

E fig a

NO. 75-1464

In Reo: ‘YW. J, ESTELLE, JR., Director,

yexas Department of Corrections,

ET AL.,

Petitioners.

20 Olive

Appeal from the United Sintes District Court

for the Lastern District of Texas

ORDE R:

ON CONSIDERATION of the motion of pctitioners

for recall and stay of judgment issucd as mandate in the above

eniritled and nwabered cause,

IT IS ORDERED that said motion be, and it is hereby DENIED,

»

4

i

{

+.

(? \ ce Spite

me a LS AA_A ,—_-s

UNTacy STAVES ClaucuLre JuUvGe

APPENDIX - 41

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 25, 1975

Honorable John L. Hill

Attorney General of Texas

P. O. Box 12548

Austin, Texas 78711

Attn: Ed Idar, Jr., Esq.

Asst. Attorney General

RE: W. J. Estelle, Jr., Director, Texas Department

of Corrections v. Honorable William Wayne Justice,

United States District Judge icr tne Eastern

District of Texas, No. A-435

My dear Mr. Hill:

Your application for stay together with the response

of the Solicitor General of the United States filed thereto

has been presented to Mr. Justice Powell, who has endorsed

thereon the following:

"Denied

L. F. De

11/25/75."

Very truly yours,

MICHAEL RODAK, JR., Clerk

a

By (pig

Paul L. Jones

Assistant Clerk

dam

cc: The Solicitor General of the United States

Honorable William Wayne Justice

Judge, United States District Court for the

Eastern District of Texas

Jack W. Flock, Esq. and Michael A. Hitchell, Esq.

William Bennett Turner, Esq.

APPENDIX - 42

(1) Wyatt v. Stickney, 334 F. Supp. 1341 (M.D. Ala. i971),

344 F. Supp. 373 (M.D. Ala. 1972) and 344 F. Supp. 387

(M.D. Ala. 1972), aff'd, 503 F.2d 1305 (Sth Cir. 1974)--

the United States was appointed as a litigating amicus curiae

in case establishing right to treatment and minimum

Constitutional standards for habilitation of the mentally

ill and mentally retarded in Alabama state hospitals;

(2) Morales v. Turman, 364 F. Supp. 166 (E.D. Tex. 1973)

and 383 F. Supn. 53 (E.D. Tex. 1974), appeal pending--the

Ynited States appeared as amicus curiae in case establishing

the Constitutional right to rehabilitation of juvenile

delinquents in Texas youth facilities;

(3) Halderman v. Pennhurst, No. 74-1345 (E.D. Pa.)--on

January 17, 1975 the court granted the United States'

motion to intervene in this class action charging un-

constitutional care and treatment of mentally retarded

residents of a large Pennsylvania state school and hospital;

(4) Stoner v. Miller, 377 F. Supp. 177 (B.D. N.Y. 1974)--

the United States appeared as amicus curiae in this case

declaring unconstitutional local ordinances banning or evicting

recently deinstitutionalized mentally ill persons from a New

York city's hotels and boarding houses;

A3

APPENDIX - 43

(5) New York Association for Retarded Children and Parisi v.

Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1972)--the United

States is participating in this case as litigating amicus

curiae establishing the constitutional right of mentally

retarded residents of a New York state school to be free

from physical, emotional, educational and sccial harm;

(6) North Carolina Association for Retarded Children v.

North Carolina, No. 3050 (£.D. W.C.)--the United States is

participating as plaintiff-intervenor in a statewide suit

concerning the care and treatment of mentally retarded

residents of four state institutions and the right of school

age mentally retarded persons to be educated in the public

schools;

(7) United States v. Solomon, No. N-74-181 (D. Md.)--the United

States instituted this suit on February 22, 1974 alleging

unconstitutional deprivations of right of the mentally

retarded to be free from physical harm and to be housed in

habilitative program in a state school and hospital;

(8) Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974)--the

United States appeared as litigating amicus curiae in this

case concerning deprivations of the right to treatment for

mentally ill persons at a state maximum security hospital. The

issue of constitutionality of commitment will be heard

separately by a three-judge court;

AG

APPENDIX - 44

Ra re eres

(9) United States v. Kellner, No. 74-138 (D. Montana)--

the United States filed this suit on November 8, 1974 alleging

deprivation of care, treatment, training, and education for

mentally retarded residents of state institution as well

as failure to provide decent living conditions, free from

harm and that residents perform non-therapeutic work without

compensation;

(10) Horacek v. Exon, 357 F. Supp. 71 (D. Neb. 1973)--the

United Sta'es is participating as amicus curiae in this

case concerning right to treatment for mentally retarded

residents of state institution;

(11) Alexander v. Hall, No. 72-209 (D.S.C.)--the United

States was granted status of plaintiff-intervenor in suit

challenging constitutionality of South Carolina's statutes

governing commitment of the mentally ill and alleging violations

of the right to treatment;

(12) Jenkins v. Cowley, No. 3-74-395-C (N.D. Texas)--the

United States is appearing as litigating amicus curiae in this

statewide suit concerning the right to treatment in Texas

ntal hospitals;

(13) Stamus v. Hospitalization Commission for Polk County,

No. 73-162-2 (S.D. Iowa)--the United States is plaintiff-

intervenor in this suit before a three-judge court challenging

constitutionality of Iowa statutory procedures for involuntary

commitment of persons alleged to be mentally ill.

APPENDIX - 45

AS