# Appendix — Estelle, Corrections Director, Et Al. v. Justice, U. S. District Judge, Et Al. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1513%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 426 U.S. 925 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1513%3A2. Public record. Not legal advice.