Petition — Alabama v. Pugh

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IN THE | MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

no. @8"-1107

STATE OF ALABAMA, et ai.,

Petitioners,

Vv.

JeRRY LEE PuGu, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THomMAS S. LAWSON, JR.

P.O. Box 2069

Montgomery, Alabama 36103

W. SCEARS BARNES, JR.

P.O. Box 801

Alexander City, Alabama 35010

WILLIAM J. BAXLEY

Attorney General of Alabama

250 Administrative Building

Montgomery, Alabama 36130

: LARRY R. NEWMAN

Assistant Attorney General

of Alabama

669 South Lawrence Street

Montgomery, Alabama 36130

Counsel for Petitioners.

————

Washington, 0.C. + THIGA PRESS - (202) 638-4521

(?)

TABLE OF CONTENTS

Page

GREE EMF c cece cece eeeeeecceceese 2

DEE oc cco cece ee eeeseessececeoceoes 3

QUESTIONS PRESENTED ........22ccccccccces 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .........-+2eeeee0.

STATEMENT OF THE CASE .......2ccccccccees

REASONS FOR GRANTING THE WRIT ...........

I. Federal Court Supervision of a State’s

| PPT TETELTTELEEELeTee 8

II. Suit against the State of Alabama ............. 11

Mi. Denial of Jury Tele wn ccccccccccccccccess 13

GETS ccc ccc ccc sccesceceeoseceoses 15

Appendices:

APPENDIX A—Opinion of Court of Appeals ......... la

APPENDIX B—Judgment of Court of Appeals ...... 25a

APPENDIX C—Notice of Entry of Order

Denying Rehearing ..... TETTLTTELULTLL TET 27a

APPENDIX D—Order of Court of Appeals

Staying Mandate .......cccccccecs sececceses 29a

APPENDIX E—Opinion and Order of District

Pree rerrrerererrerereererrerrrere $la

APPENDIX F—Opinion and Order of District

GoUs Gn TAGE ccc ccc cee scewrcecccsces 9la

APPENDIX G—District Court Order Denying

/ - BPPrrrTrree creeereeeerrerrerrreree 104a

APPENDIX H—District Court Order Severing

Damage Claim ........ S66 OEE RESCEE OOO? 106a

APPENDIX I—District Court Interim Order and

Injunction—jointly with Southern District of

Alabama in McCray v. Sullivan, C.A. No.

PEE 666666660 6646660660006 Od 000088 108a

(11)

Appendices, continued: Page

APPENDIX J—Southern District Court Order

in McCray v. Sullivan, C.A. No. 5620-69-H . ...... ll4a

TABLE OF CASES, STATUTES AND AUTHORITIES

Cases:

Anderson v. Redmond, No. 76-364 (3rd Cir.) .......... 10

Beacon Theatres, Inc. v. Westover, 359 U.S.

RRR ee eee 13, 14

Bolding v. Holshouser, N. 76-2151 (4th Cir.) .......... 10

Burbank v. Walker, 76-C-4471 (PI.D. Ill.) 2 ........... 10

Burks v. Graham, No. 774008-CV-C (W.D. Mo.) ........ 10

Chapman v. Rhodes, 434 F. Supp. 1007 (S.D.

OO ee ee Pee Tee TT eee 10

City of Kenosha v. Bruno, 412 U.S. 507 (1973) ........ 12

Costello v. Wainright, No. 75-109-Civ. (M.D. Fla.) ...... 10

Curtis v, Everette, 489 F. 2d 516 (3rd Cir.

BE 22 2 actuate s beets bo ide ee 12

Curtis v. Loether, 415 U.S. 189 (1974) ........... 13, 14

Dairy Queen, Inc. v. Wood, 369 U.S. 569 (1962) ... 13, 14

Demick v. Schiedt, 293 U.S. 474, 486 (1934) .......... 14

Dunn Construction Company v. State Board of

Adjustment, 234 Ala. 372, 175 So. 383 (1937) ...... 11

Edelman v. Jordan, 415 U.S. 651 (1974) ......... ll, 12

Ex Parte Young, 209 U.S. 123 (1908) .............. 12

Ford Motor Company v. Department of Treasury

of the State of Indiana, 323 U.S. 459 (1944) ........ 11

French v. Raines, 1-P-75-677-C (S.D. Ind.) ............ 10

Gates v. Collier, 501 F. 2d 1291 (5th Cir. 1974) ........ 10

Hardwick v. Ault, C.A. 75-139 (M.D. Ga.) ............ 10

Harmis v. Cardweil, 75-185 (D. Ariz.) ..........02006- 10

(itt)

Cases, continued: Page

James v. Wallace, 74-203-N (M.D. Ala.) .......-++++- 5, 6

Johnson v. Levine, H-77-113 (D.C. Md.) «we ee ee ee es 10

Lightfoot v. Walker, CV-73-238-E (E.D. Ill.) .......-+-- 10

McCray v. Sullivan, 5620-69-H (S.D. Ala.) ......-. 2, 6, 10

Mattison v. South Carolina, C.A. 76-318 (D.S.C.) ...... 10

Meredith v. Arizona, 523 F. 2d 481 (9th

=. FRPPTTTITirTiT Tir rire 12

Miller v. Carson, 563 F. 2d 741 (5th Cir. 1977) ........ 9

Monroe v. Pape, 365 U.S. 167 (1961)... eee ee ee eee 13

Nebraska v. Wyoming, 325 U.S. 589 (1945) .......... )

Nelson v. Collins, V-77-116 (D. C. Md.) ......-222-000- 10

Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala.

1972), aff'd. in part 503 F. 2d 1320 (5th Cir.

1974), cert. denied 421 U.S. 948 (1975) .......... 6

Newman v. Alabama, 559 F. 2d 283 (5th Cir.

PPP TTEPETTIPELILTET TLL 2

Pierson v. Ray, 398 U.S. 547 (1967) .......-2- eens 13

Preiser v. Rodriguez, 411 U.S. 475 (1973) ..........--- 8

Pugh v. Locke, 74-57-N (M.D. Ala.) .......---- 5, 6, 13

Pugh v. Locke, 406 F. Supp. 318 (M.D.

| S MPPYeTTTrTerrree<ereeecerririr 2, 13

Rizzo v. Goode, 423 U.S. 362 (1976) .........--.. 8, 11

Ross v. Bernhard, 496 U.S. 531 (1970) ..........-4-- 13

Ruiz v. Estelle, C.A. 5523 (E. D. Tex.) ........--+++- 10

Scheuer v. Rhodes, 416 U.S. 232 (1974) ......-04--- 11

State v. Louis Pizitz Dry Goods Company,

243 Ala. 629, 11 So. 2d 342 (1943) ............4.-. il

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 16 (1971) ........--5-005- 8

Trigg v. Blanton, 8-6057 (Chancery Court,

Davidson Co., Tenn. Part 1) .....2ccccccccsccces 10

(tv)

Cases, continued: Page

United States v. Thompson, C.V. 76-0158

DD &0e¢6606 64006 660054506000500 G05 10

Vermont v. New York, 417 U.S. 270 (1974) .......... 9

White v. Alabama Insane Hospital, 138 Ala.

Sey Se ED 6 bee 6 666 :00 00084 46 OOO8 11

Wiliams v. Edwards, 547 F. 2d 1206 (5th

Ss PO 60606566566 000500846068006 66006R 10

Statutes:

Title 28, §1254(1), Umited States Code .............. 3

Title 42, §1983, United States Code .. 3, 4, 5, 11, 12, 13, 14

Title 42, §3612, Umited States Code ................ 13

Constitution of the United States of America,

GE TE Ceo catoeseeoceoneseeceeeseese 4

PT TT) ces et eooeeereetbeeseeeeeses 4

PE Sheoeoceccesececvoeeeoseseese 4

CC Ee er 4

Other Authorities:

Robbins & Buser, Punitive Condition of Prison

Confinement: An Analysis of Pugh v. Locke

and Federal Court Supervision of State Penal

Administration under the Eighth Amendment,

a, LD, PTT TT eee 8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

STATE OF ALABAMA, et al.,

Petitioners,

Vv.

Jerry LEE PuGu, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners! —The State of Alabama; the Alabama

Board of Corrections; Judson C. Locke, Jr., individually

and in his official capacity as Commissioner of the

Alabama Board of Corrections; Bill Long, individually;

jJ.O. Davis, individually and as warden of G.K. Fountain

'The United States Court of Appeals for the Fifth Circuit

ordered the District Court, upon remand, to dissolve the

Correctional Center; Reverend John E. Vickers, Dr.

Thomas F. Staton, and Dr. Marion L. Carroll, Jr.,

individually and as members of the Alabama Board of

Corrections; J. Louis Wilkinson and W.F. Hamner, as

members of the Alabama Board of Corrections; the

Attorney General of Alabama; and the warden, hospital

administrator, business manager, and all hospital staff of

Kilby Corrections Facility (formerly Medical and

Diagnostic Center, Mt. Meigs, Alabama)—respectfully

pray that a writ of certiorari issue to review the

judgment and the opinion of the United States Court of

Appeals for the Fifth Circuit entered in this proceedings

on September 16, 1977.

The Respondents, inmates or former inmates of the

Alabama Prison System, are Jerry Lee Pugh, N.H.

Newman, Worley James, Johnnie Foster, Davis Van

Zandt, William Sherman Jones, William Edward Camp-

bell, and Sherrell Speegle, for themselves and all others

similarly situated.

OPINIONS BELOW

The opinion of the Court of Appeals modifying and

affirming the District Court is reported as Newman v.

Alabama, 559 F.2d 283 (5th Cir. 1977). The opinion

and the judgment thereon are attached hereto as

Appendices A and B, respectively.

The opinion and order of the District Court

formulating minimum standards for the operation of

the Alabama Prison System and enjoining petitioners

from failing to fully implement them is reported as

Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976), and

is attached hereto as Appendix E.2 The opinion and

2 an interim order, entered jointly with the District Court for

the Southern District of Alabama in McCray v. Sutlivan, C.A. No.

jfootnote continued]

order of the District Court on rehearing is dated March

5, 1976, is unreported, and is attached hereto as

Appendix F.

The orders of the District Court denying some of the

petitioners a jury trial on January 20, 1975, and

severing respondent Pugh’s claim for damages from the

class action injunctive claims on June 27, 1975, are

unreported, and are attached hereto as Appendices G

and H, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered

on September 16, 1977 (Appendix B, infra, p. 25a),

and timely petitions for rehearing and rehearing en banc

were denied on November 7, 1977 (Appendix C,

infra, p. 27a). The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

Inmates of Alabama prisons filed suit under 42

U.S.C. §1983 alleging that the conditions of their

confinement constituted cruel and unusual punishment.

Finding that conditions in Alabama’s prisons did violate

their Eighth and Fourteenth Amendment rights, the

District Court granted declaratory and injunctive relief

which, with some modifications, the Court of Appeals

affirmed. The questions presented are:

1. Whether the courts below exceeded their remedial

power or abused their discretion in formulating detailed

standards for the operation of the Alabama prison

5620-69-H, which prohibited the aceptance of new inmates into

Alabama prisons, is unreported and is attached hereto as

Appendix I. .

system which went beyond the constitutional mandate

and in ordering their full implementation under the

continuing supervision of the court and court-appointed

monitors.

2. Whether the mandatory injunction issued against

the State of Alabama and the Alabama Board of

Corrections violates the State’s Eleventh Amendment

immunity or exceeds the jurisdiction granted federal

courts by 42 U.S.C. §1983.

3. Whether, in an action under 42 U.S.C. §1983 in

which a jury had been demanded, the Seventh

Amendment permitted the District Court, over a party’s

objection, to sever the damage claims and proceed to

first determine the claims for declaratory and injunctive

relief without a jury.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Constitution of the United States, Amendment VII:

“the right of trial by jury shall be preserved... .”

Constitution of the United States, Amendment VIII:

“nor cruel and unusual punishments inflicted.”

Constitution of the United States, Amendment XI:

“The judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by citizens of another state, or

by citizens or subjects of any foreign state.”

ee of the United States, Amendment XIV,

“nor shall any state deprive any person of life,

—., Or property without due process of

Ww...

Pe Rr WE

United States Code, Title 42:

§ 1983. Civil action for deprivation of rights.

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, 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

secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.”

STATEMENT OF THE CASE

The jurisdiction of the District Court was invoked by

the filing of separate actions under 42 U.S.C. §1983 by

two inmates of the Alabama Prison System, each

alleging the infliction of cruel and unusual punishment.

The defendants included the Commissioner and Mem-

bers of the Alabama Board of Corrections and various

prison officials, sued in their individual and official

capacities, and the Governor of Alabama, the Alabama

Board of Corrections, and the State of Alabama.

In Pugh v. Locke, C.A. No. 74-57-N, monetary

damages and declaratory and injunctive relief were

sought and a jury trial was requested. By amendment,

the suit became a class action. When the prison officials

and other defendants objected to the case being set for

trial without a jury, the District Court, upon motion of

the plaintiffs, ordered the claims for monetary damages

severed from the claims: for declaratory and injunctive

relief, denied the request for a jury trial and

consolidated the Pugh case with James v. Wallace, C.A.

No. 74-203-N, which had also been amended into a

class action. (Appendices G and H, infra, pp. 104a, 106a).

The consolidated Pugh and James cases were treated

as a single action attacking both specific conditions and

the totality of conditions of confinement in the

Alabama prison system as constituting cruel and

unusual punishment. After a non-jury trial, the District

Court, in a joint order also entered by the District

Court for the Southern District of Alabama in McCray

v. Sullivan, C.A. No. 5620-69-H, a class action involving

the same plaintiff classes and the same subject matter,

entered an interim order prohibiting the acceptance of

new inmates into Alabama prisons. (Appendix I, infra,

pp. 108a).

Four and one-half months after trial, the District

Court, finding that unconstitutional conditions did exist

in the Alabama prison system, entered an order (1)

enjoining Petitioners from failing to fully implement a

comprehensive and detailed set of “Minimum Constitu-

tional Standards” which the District Court had

formulated, and (2) establishing and appointing a

thirty-nine member “Human Rights Committee” to

monitor implementation of the District Court’s previous

order in Newman v. Alabama, 349 F. Supp. 278 (M.D.

Ala. 1972), affd in part 503 F.2d 1320 (5th Cir.

1974), cert. denied 421 U.S. 948 (1975), which dealt

with medical care in Alabama prisons. The detailed

standards set by the District Court appear in its order

which is attached hereto as Appendix E, and the few

modifications of those standards subsequently made by

the District Court on motion for rehearing appear in its

order of March 5, 1976, unreported, which is attached

hereto as Appendix F.°

5On February 10, 1976, the District Court for the Southem

District of Alabama in McCray v. Sullivan, C.A. No. 5620-69-H,

[footnote continued]

The Court of Appeals affirmed and remanded

(Appendices A and B, infra, pp. la, 25a) permitting, with

certain exceptions, the standards fixed by the District

Court to remain, although it recognized that those

requirements related to work and recreational op-

portunities are without any constitutional foundation

and that other requirements may also go beyond the

constitutional mandate. The District Court was directed

to substitute a lesser number of monitors for the

thirty-nine member Human Rights Committee to insure

compliance with its standards. The Court of Appeals

also allowed the injunction to remain in effect as to the

State of Alabama and the Alabama Board of Cor-

rections and directed that the compensation and

expense of the Human Rights Committee and the

monitors to be appointed upon remand be recovered

from the State of Alabama.

Petitions by all parties for rehearing were denied

(Appendix C, infra, p. 27a), but Petitioners’ motion

for stay of the issuance of the mandate pending the

filing of this petition was granted because of the

importance of the issues (Appendix D, infra, p. 29a).

unreported, also entered its order finding conditions in the

Alabama prison system to be violative of the Constitution, but

specifically refusing “‘to direct the exact means or method to be

pursued” in correcting those conditions. (Appendix J, infra, p.

116a).

REASONS FOR GRANTING THE WRIT

FEDERAL COURT SUPERVISION OF A _ STATE’S

PRISON SYSTEM

The remedial order issued by the District Court has

been described as “the most expansive intrusion yet by

a federal court into the management of state penal

facilities,"* and it conflicts, at least in principle, with

recent decisions of this Court which re-emphasized the

necessity of federal courts’ giving appropriate considera-

tion to principles of equity, comity and federalism.

Rizzo v. Goode, 423 U.S. 362 (1976); Preiser v.

Rodriguez, 411 U.S. 475 (1973).

While a federal court’s equitable power to remedy

past wrongs is broad, its “judicial power may be

exercised only on the basis of a _ constitutional

violation.” Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 16 (1971). The District Court

characterized its requirements as “constitutional mini-

mum standards,” but the Court of Appeals did not

consider them as such and recognized that many did or

might exceed the constitutional mandate. By permitting

the District Court, nevertheless, to go beyond its

obligation to insure that constitutional limits are not

exceeded and fully implement standards lacking specific

constitutional foundation, the Court of Appeals allowed

the District Court to act as legislator and prison

administrator rather than as judge. The courts below

clearly went beyond attempts to correct conventional

notions of cruel and unusual punishment and entered

*Robbins & Buser, Punitive Conditions of Prison Confine-

ment: An Analysis of Pugh v. Locke and Federal Court

Supervision of State Penal Administration under the Eighth

Amendment, 29 Stan. L. Rev. 893, 916 (1977).

nue.

into the non-constitutional and extra-judicial realm of

prison reform. This extension of the power of federal

courts into the administering of State prisons so far

departs from the accepted and usual course of judicial

proceedings and the controlling precepts of federalism

in determining the availability and scope of equitable

relief as to call for an exercise of this Court’s power of

supervision.

The appointment by the District Court of federal

monitors for Alabama prisons to insure their compli-

ance with the standards is also without precedent in

this Court and is unauthorized by any provision of the

Federal Rules of Civil Procedure. In Vermont v. New

York, 417 U.S. 270 (1974), this Court rejected the

appointment of a special master to police the execution

of a settlement, citing with approval its previous

expression in Nebraska v. Wyoming, 325 U.S. 589

(1945), that “continuing court supervision over decrees

of equitable apportionment of waters was undesirable.”

The decision of the Court of Appeals below also reveals

that the “monitors” called for are not intended to

operate in the same manner as masters provided for by

the Federal Rules. In fact, the Fifth Circuit has recently

described the monitors in this case as “ombudsmen.”

Miller v. Carson, 563 F.2d 741 (5th Cir. 1977).

The question of how far a federal court may go in

fashioning equitable remedies for the erradication of

cruel and unusual punishment in State prison systems

presents an important question of federal law and one

of immediate concern which has not been, but should

be now, settled by this Court. The constitutionality of

some twenty or more state prison systems, including

every state in the Fifth Circuit, is presently being

litigated.° Judge Coleman, the author of the. Court of

Appeals’ opinion below, in granting the petitioners a

stay of issuance of the mandate pending the filing of

this petition, stated:

“This stay is granted because the undersigned is of

the opinion that the issues in this appeal are

extremely important and a decision by the

Supreme Court would clarify many issues of state

prison administration.” (Appendix D, infra, p.

30a).

Thus, the issue is important to the parties, to the States

whose prison systems are or may yet come under attack

and to the inmates incarcerated in them, to the citizens

whose attitudes determine what is cruel and unusual

punishment and whose tax monies must be applied to

remedy it, and to the federal courts® whose remedies

should uphold the constitutional mandates but reflect

5 Including: Harris v. Cardwell, 75-185 (D. Ariz.); Anderson v.

Redmond, No. 76-364 (3rd Cir.) (Del.); Costello v. Wainright,

No. 72-.09-Civ (M.D. Fla.); Hardwick v. Ault, CA. 75-139 (M.D.

Ga.); Burbank v. Walker, 76-C-4471 (N.D. IIL); Lightfoot v.

Walker, CV-73-238-E (E.D. Ill.); United States v. Thompson, CV

No. 76-0158 (S.D. Ill.); French v. Raines, I-P-75-677-C (S.2. Ind.);

Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977) (La);

Nelson v. Collins, V-77-116 and Johnson v. Levine, H-77-113

(D.C. Md.); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)

(Miss.); Burks v. Graham, No. 77-4008-CV-C (W.D. Mo.); Bolding

v. Holshouser, N. 76-2151 (4th Cir.) (N.D.); Chapman v. Rhodes,

434 F. Supp. 1007 (S.D. Ohio 1977); Mattison v. South

Carolina, C.A. 76-318 (D.S.C.); Trigg v. Blanton, No. 8-6057

(Chancery Court, Davidson Co., Tenn., Part 1); Ruiz v. Estelle,

C.A. No. 5523 (E.D. Tex.).

©The District Court for the Southern District of Alabama in

McCray v. Sudlivar, C.A. No. 5620-69-H, unreported, refused to

intervene and specify the exact means or methods to be used in

correcting the unconstitutional condition in the prisons, stating

that such duties are “the province and burden of the State and

those departments responsible . . . .” (Appendix J, infra, p. 116a).

ee ee ek eer

‘via

the “special delicacy of the adjustment to be preserved

between federal equitable power and state administra-

tion of its own law.” Rizzo v. Goode, 423 U.S. 362

(1976).

SUIT AGAINST THE STATE OF ALABAMA

The issuance of a mandatory injunction against the

State of Alabama and the Alabama Board of Cor-

rections violated Alabama’s Eleventh Amendment im-

munity and directly contradicted this Court’s decisions

in Scheuer v. Rhodes, 416 U.S. 232 (1974), Edelman v.

Jordan, 415 U.S. 651 (1974), and Ford Motor

Company v. Department of Treasury of the State of

Indiana, 323 U.S. 459 (1944). These cases hold that the

Eleventh Amendment denies federal courts authority to

entertain suits by private parties against a State or State

agency, if under State law the real party in fact is the

State itself, unless it has given its consent to to be sued.

Section 14 of the Alabama Constitution provides the

“the State of Alabama shall never be made a defendant

in any court of law or equity,” and, consequently, no

person or authority has the power to consent to a suit

against the State. Dunn Construction Co. v. State Board

of Adjustment, 234 Ala. 372, 175 So. 383 (1937). The

prohibition against such suits extends to Stare agencies

such as the Board of Corrections. See White v. Alabama

Insane Hospital, 138 Ala. 479, 35 So. 454 (1903); State

v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d

342 (1943).

The grant of an injunction against the State and the

Board of Corrections in an action based upon 42 U.S.C.

§1983 is in direct conflict with decisions of other

courts of appeal which hold that neither a State nor a

State agency is a “person” within the meaning of the

statute and amenable to suit under it. Meredith v.

Anzona, 523 F.2d 481 (9th Cir. 1975); Curtis v.

Everette, 489 F.2d 516 (3rd Cir. 1973). The decisions

below conflict, at least in principle, with this Court’s

holding in City of Kenosha v. Bruno, 412 U.S. 507

(1973), that municipalities are not “persons” under 42

U.S.C. §1983.

The Court of Appeals directed the District Court to

compensate its monitors by rendering judgments against

the State of Alabama for costs. As noted above, the

District Court has no authority or jurisdiction to enter

a judgment against the State in these proceedings and,

in addition, the payment of such salaries and expenses

would not fall within the exceptions of Edelman uv.

Jordan, 415 U.S. 651 (1974) and Ex Parte Young, 209

U.S. 123 (1908).

It is essential that the Court act, not only because

the State of Alabama itself has been specifically ordered

in this case to pay the compensation and expenses of

the monitors and the Human Rights Committee, but

because by the use of such injunctions federal courts

may place themselves in positions of control over States

as soverign entities rather than over particular officials

who may only be compelled to perform their delegated

functions in a constitutional manner. The issuance of

the injunction against the State is neither accidental nor

incidental, and unless addressed now by this Court,

even more serious confrontations between the federal

judiciary and the States in this and other actions can be

expected.

re ee ey

—-

ee eee

Il.

DENIAL OF JURY TRIAL

The action of the District Court, sanctioned by the

Court of Appeals, in allowing the plaintiffs to avoid a

jury trial by severing the class representative’s individual

claim for damages, dropping the claims for class

damages without notice to the class, and proceeding to

trial on the declaratory judgment and injunctive aspects

of the case without a jury, is in clear violation of this

Court’s rulings on Seventh Amendment rights in Curtis

v. Loether, 415 U.S. 189 (1974), Ross v. Bernhard, 396

U.S. 531 (1970), Datry Queen, Inc. v. Wood, 369 U.S.

569 (1962), and Beacon Theatres, Inc. v. Westover, 359

U.S. 500 (1959).

The plaintiffs in Pugh v. Locke, C.A. No. 74-57-N,

asked for monetary, declaratory and injunctive relief, all

based upon a common set of allegations and facts, and

the District Court later noted that “the questions of

law and fact, presented by the named plaintiffs are

common to the class, as are the claims presented by the

class representatives...” Pugh v. Locke, 406 F. Supp.

318 (M.D. Ala. 1976) (Appendix E, infra, pp. 33a-34a).

Assuming, as the District Court did, that a jury trial

would be available on a damage claim under 42 U.S.C.

§1983,’ a jury trial would also be available on the

same issues under a prayer for a declaratory judgment.

Beacon Theatres, Inc. v. Westover, supra. Similarly, the

addition of a request for injunctive relief would not

7This Court has analogized cases under 42 U.S.C. §1983 to

traditional tort actions. Pierson v. Ray, 398 U.S. 547 (1967);

Monroe v. Pape, 365 U.S. 167 (1961). It is also held that a jury

trial could be obtained im an action under 42 U.S.C. §3612 where

both damages and injunctive relief was sought. Curtis v. Loether,

415 U.S. 189 (1974).

authorize a non-jury trial on the legal issues involved.

Curtis v. Loether, supra. This Court’s decisions in

Beacon and Dairy Queen also require that in cases of

this nature, where equitable and legal issues are joined,

the issues common to both claims must be tried by a

jury pnor to determination of the equitable claims. The

opposite was done below.

The importance of this issue to the individual

petitioners here cannot be over-emphasized, since the

damage claims against them have not been resolved.

Nevertheless, of even greater consequence is the effect

which this procedure for isolating the demand for a

jury trial may have upon the multitude of class action

prison suits now pending around the country. Are State

officials who are defendants in actions brought under

42 U.S.C. §1983 not to be afforded a single jury trial

on issues common to both legal and equitable claims

where both damages and an injunction are sought?

Conversely, where the questions of fact are common to

the named plaintiffs, the class representatives, and the

class as a whole, can State officials be put to trial twice

on the same issues because of a severance of claims

made to avoid a jury trial? This Court has noted that

“any seeming curtailment of the right to a jury trial

should be scrutinized with the utmost care,” Demick v.

Schiedt, 293 U.S. 474, 486 (1934), and we respectfully

submit that a condemnation of the procedure used in

this case to avoid a jury trial is necessary to the

meaningful preservation of jury trials in §1983 actions

and even in other actions where both monetary

damages and injunctive relief are claimed.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

THomasS S. LAWSON, JR.

W. SCEARS BARNES, JR.

WILLIAM J. BAXLEY

LARRY R. NEWMAN

Counsel for Petitioners.

APPENDIX A

[5847] N. H. NEWMAN et al.,

Plaintiffs-Appellees,

Vv.

STATE OF ALABAMA et al.,

Defendants-Appellants.

Jerry Lee PUGH, for himself and

others similarly situated,

Plaintiffs-Appellees,

Vv.

Judson C. LOCKE, Jr. and State of

| Alaba L.,

A p p E N D X I nay aac

Worley JAMES et al.,

Plaintiffs-Appellees,

George C. WALLACE et al.,

Defendants-Appellants.

No. 76-2269.

United States Court of Appeals,

Fifth Circuit.

Sept. 16, 1977.

[5849] Appeals from the United States Dis-

trict Court for the Middle District of

Alabama.

[5850]

Before COLEMAN, Circuit Judge,

KUNZIG*, Judge, and GEE, Circuit

Judge.

COLEMAN, Circuit Judge.

[1] The Eighth Amendment to the

Constitution of the United States, rein-

forced by the Fourteenth Amendment,

prohibits the imposition of cruel and un-

usual punishment. It is much too late in

the day for states and prison authorities

to think that they may withhold from

prisoners the basic necessities of life,

which include reasonably adequate food,

clothing, shelter, sanitation, and neces-

sary medical attention, Gates v. Collier, 5

Cir., 1974, 501 F.2d 1291; Newman v.

Alabama, 5 Cir., 1974, 503 F.2d 1320,

cert. denied 421 U.S. 948, 95 S.Ct. 1680,

44 L.Ed.2d 102; Williams v. Edwards, 5

Cir., 1977, 547 F.2d 1206.

[2] It should not need repeating that

compliance with constitutional standards

may not be frustrated by legislative in-

action or failure to provide the nevessary

funds, Gates v. Collier, supra, at 1319;

Smith v. Sullivan, 5 Cir., 1977, 553 F.2d

373.

* Judge of the United States Court of Claims,

sitting by designation.

RY ORE NE PoE onc ORT

ear Or Epes ee te er me

[3-5] On the other hand, lawful in-

carceration necessitates withdrawal of or

limitations upon many individual privi-

leges and rights. A prisoner does not

retain constitutional rights that are in-

consistent with his status as a prisoner

or with the legitimate penological objec-

tives of the corrections system. Wide

ranging deference must be accorded the

decisions of prison administrators. They,

and not the courts, must be permitted to

make difficult judgments concerning

prison operations, Jones v. North Caroli-

na Prisoners’ Labor Union, Inc. [1977],

— US. , 97 S.Ct. 2532, 53 L.Ed.2d

. In his concurring opinion in

Jones, Mr. Chief Justice Berger wrote

that in penal matters the federal courts

may not “second guess” legislatures and

prison administrators except in the most

extraordinary circumstances.

The present case is somewhat similar

to Rizzo v. Goode, 423 U.S. 362, 96 S.Ct.

598, 46 L.Ed.2d 561. There petitioners

claimed that the judgment of the Dis-

trict Court represented an unwarranted

intrusion by the federal judiciary into

the discretionary authority committed to

them by state and local law to perform

their official functions. The Supreme

Court found itself “substantially in

agreement with th(o)se claims”, at 366,

96 S.Ct. at 602. The case involved an

“assertedly pervasive pattern of illegal

and unconstitutional mistreatment by

police officers”.

The Supreme Court said,

“Where, as here, the exercise of au-

thority by state officials is attacked,

federal courts must be constantly

mindful of the ‘special delicacy of the

adjustment to be preserved between

federal equitable power and state ad-

ministration of its own law’. * * *

Even in an action between private in-

dividuals, it has long been held that an

injunction is ‘to be used sparingly, and

only in a clear and plain case’.

The Court concluded that when the

District Court injected itself into the in-

ternal disciplinary affairs of the Phila-

delphia Police Department, a state agen-

cy, it had departed from the controlling

precepts of federalism in determining

the availability and scope of equitable

relief. The judgment of the Court of

Appeals affirming the decree of the Dis-

trict Court which directed the imposition

of a comprehensive program for dealing

adequately with civilian complaints was

reversed.

Se re

[5851]

This does not mean that Constitutional

standards are not to be scrupulously ob-

served or that the statutes designed to

enforce that objective are to be denied

full effect. It does mean in the prison

context that federal courts should keep

their eyes on the main objective, the

Eighth Amendment command for the

eradication of cruel and unusual punish-

ment. The remedy must be designed to

accomplish that goal, not to exercise ju-

dicial power for the attainment of what

we as individuals might like to see ac-

‘complished in the way of ideal prison

conditions. There are those who would

argue that imprisonment in any form is

cruel and unusual. The Amendment,

however, recognizes the right to punish

for criminal conduct as long as that pun-

ishment does not escalate to the cruel

and unusual.

For example, we have held that visita-

tion privileges are matters subject to the

discretion of prison officials, McCray v.

Sullivan, 5 Cir., 1975, 509 F.2d 1332,

1334.

Failure of prison authorities to provide

a rehabilitation program does not by it-

self constitute cruel and unusual punish-

ment, Ibid, at 1335.

[6] Federal courts are extremely re-

luctant to limit the freedom of prison

officials to classify prisoners as they, in

their broad discretion, may deem appro-

priate, Ibid, at 1334; Young v. Wain-

wright, 5 Cir., 1971, 449 F.2d 388.

State penitentiaries are occupied by

convicted felons, either ineligible for or

found to be unworthy of probation. By

its very nature, the operation of such a

prison is a dangerous’ undertaking.

Time and time again, experience has

dramatically taught that the manage-

ment and control of prisons, the preven-

tion of mass violence within prisons, and

the safe retention of convicts within

prison walls, present problems of the

first magnitude, in which failures occur

all too often, as recently demonstrated at

Brushy Mountain, Tennessee. There was

intense nationwide interest when a noto-

rious prisoner escaped but not much con-

cern had previously been shown for the

problems of prison officials in trying to

hold him inside the walls.

[7] The authority to manage and con-

trol a felony prison should never be un-

duly restricted or divided. That authori-

ty must repose in one well identified

place, limited only by the requirements

of the law.

This appeal is concerned with the rem-

edies prescribed by the very able District

Court for the eradication of cruel and

unusual punishment in the Alabama

State Prison System, Pugh v. Locke, 406

F.Supp. 318 (M.D.Ala., 1976). At the

federal level this involves a comparative-

ly new field of the law. It was not until

1962 that the Supreme Court applied the

Eighth Amendment ban to the states

through the Fourteenth Amendment,

Robinson v. State of California, 370 U.S.

660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

The State concedes that the evidence

established excessive overcrowding in

these prisons, that there were not suffi-

cient guards to reasonably protect the

inmates from one another, and that the

overcrowding was primarily responsible

for and exacerbated all the other ills of

the penal system. As detailed in its pub-

lished opinion, other indefensible condi-

tions were found by the District Court,

findings clearly supported by the evi-

dence.

At the outset, then, the case is reduced

to a constitutional appraisal of the reme-

dies required of the State. The State

contends that in fashioning those reme-

[5852]

dies the District Court “exceeded its ju-

dicial power and abused its discretion”.

[8] Our first response is that the de-

termined efforts of the highly dedicated

District Judge to put an end to unconsti-

tutional conditions in the Alabama pris-

on system merit high commendation.

We cannot believe that the good people

of a great state approved the prison situ-

ation demonstrated by the evidence in

this case. We note, too, that for more

than a year funds for an entirely new

prison have been available as the result

of legislative action, which is likewise

commended. A state has no higher duty

than the preservation of its governmen-

tal integrity by the enforcement of its

own laws, which inescapably includes the

maintenance of an effective state prison

system. This Court expresses the hope

that the difficulties encountered in nam-

ing a location for the new prison will be

speedily resolved.

{9} Our real issue is whether in striv-

ing to attain constitutional objectives the

District Court in a few respects went

impermissibly beyond the requirements

of the federal constitution; more specifi-

cally, did the Court supersede the duly

constituted state authorities in the per-

formance of vital state functions rather

than compelling those authorities to per-

form those functions in a constitutional

manner? We all understand, of course,

that federal courts have no authority to

address state officials out of office or to

fire state employees or to take over the

performance of their functions. Most

assuredly, however, in proper cases a

federal court can, and must, compel state

officials or employees to perform their

official duties in compliance with the

Constitution of the United States.

[10] At the outset we hold that the

steps taken by the District Court to en-

sure reasonably adequate food, clothing,

shelter, sanitation, necessary medical at-

tention, and personal safety for the pris-

oners were within its sound discretion

and will not be disturbed on appeal.

Some of the steps in regard to these

matters, if considered in isolation, may

have gone beyond constitutional man-

dates but they were justifiably invoked

for the eradication of Eighth Amend-

ment conditions. We do not pause to

discuss a number of state contentions

which are foreclosed by our opinion in

Williams v. Edwards, 5 Cir., 1977, 547

F.2d 1206, decided after this appeal was

filed and briefed.

10a

There are a few features of the case,

however, in which we are of the opinion

that less intrusive, but equally effective,

measures should have been taken by the

District Court. An adjustment of these

matters within constitutional bounds

should not hamper or impede the attain-

ment of an effective, constitutionally op-

erated state penal system. As to these

matters, we think some modifications are

in order. With those modifications, the

judgment of the District Court will be

affirmed and the case remanded for fur-

ther proceedings not inconsistent here-

with.

[11] Unless intended to apply only to

existing facilities we do not discern the

constitutional basis for the requirement

that Alabama state prisoners shall be

housed in individual cells, nor can we

agree that “design” standards, without

more, amount to a per se constitutional

limitation on the number oi prisoners

which may be housed in a particular

prison facility. Those who design pris-

ons are not vested with either the duty

or the power to prescribe constitutional

standards as to prison space. Assuming

that the District Court intended these

PORATION IE RTE AS

Se ee ee ee

[5853

lla

limitations to apply only to presently ex-

isting prisons and not to those hereafter

to be constructed the judgment in these

respects is affirmed.

The Court required that all new prison

construction should provide sixty square

feet of space per prisoner. We remand

this requirement to the District Court

for further consideration in the light of

our opinion in Williams v. Edwards, 547

F.2d, at 1215.

Ill

The District Court established and ap-

pointed a “Human Rights Committee”,

composed of 39 individuals. Whether

they were qualified by training or expe-

rience in the operation of a state prison

system is not shown. At State expense,

the Committee was authorized to employ

a fulltime staff consultant, other special-

ists, and a fulltime clerk-stenographer.

The Committee members were to be

compensated at the same rate as that

paid the Alabama State Board of Correc-

tions.

The Committee was authorized to mo-

nitor implementation of the standards

prescribed by the Court’s decree as well

12a

as those prescribed in Newman v. Ala-

bama.' The Order provided that

“(T]he Committee may at reasonable

times inspect the state prison facilities,

interview inmates, and inspect institu-

tional records. The Committee shall

review plans for implementation of

this decree to ensure that they com-

port with minimum standards set

forth. . . .. The Committee shall

be authorized to take any action [em-

phasis added] reasonably necessary to

accomplish its function.”

Our initial reaction is that “reviewing

plans for implementation of this decree

to ensure that they comport with mini-

mum standards set forth” could more

properly have been assigned to the mag-

istrate or to a master, qualified to hold

hearings, make findings of fact, a.id re-

port to the Court for its approval or

disapproval. Moreover, the authority to

“take any action”, with no accompany-

ing standards or limitations, could

amount, in practical effect, to turning

the administration of the prisons over to

the Committee, as, in some respects, ap-

pears to have occurred.

1. D.C., 349 F.Supp. 278, affirmed in part, 5

Cir., 1974, 503 F.2d 1320, cert. denied 421

U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102.

OM SO) RT Ee er er

13a

It may be that in setting up the Com-

mittee the Court had in mind the ap-

pointment of numerous biracial commit-

tees in school desegregation cases. The

analogy is not altogether inapposite but

we are not aware of any school desegre-

gation decree in this Circuit which au-

thorized such committees to do more

than assemble information, confer, ad-

vise, and make representations to the

school board and the court. They did

not participate in “day to day” school

operations, they received no compensa-

tion, and their function did not have ei-

ther the appearance or the effect of su-

perseding school boards or faculties in

the daily administration of the school

systems. Additionally, the circumstances

surrounding the operation of schools are

quite different to those prevailing in the

operation of a penitentiary.

The State asserts, and it is not disput-

ed, that in a number of instance» prison

authorities and their counsel were not

notified of meetings between committee

members and the District Court with

reference to prison operations; there-

fore, state counsel] were unable to partic-

ipate or to be heard.

[5854]

l4a

The State further asserts that the

Committee impermissibly interfered with

the Alabama Board of Corrections and

its duly authorized agents in the exercise

of powers and duties exclusively con-

ferred upon them by Alabama law.

We have examined numerous letters

appearing in the printed Appendix,

signed by the Chairman of the 39 mem-

ber Committee, addressed to the Ala-

bama Board of Corrections or its agent,

in which the addressees were directed to

take specified action in regard to certain

matters. These letters state that they

were written at the direction of the Dis-

trict Court.

From the record, we are left with the

firm conviction that the Committee un-

doubtedly did impermissibly intrude, and

had every appearance of impermissibly

intruding, upon functions properly be-

longing to the daily operation of the Al-

abama prison system. Prison officials

cannot be expected to perform in an ef-

ficient or an effective manner if they

are required to stay in line with so nu-

merous a Committee, at the same time

constantly confronted with the spectre of

federal contempt of court.

ERTS FUP

ape

15a

[12] This is not to say that the Dis-

trict Court could not take and should not

have taken appropriate steps to ensure

compliance with its remedial decree. We

think, however, that a more reasonable,

less intrusive, more effective approach

would have been to name one monitor

for each of the prisons involved, with

full authority to observe, and to report

his observations to the Court, with no

authority to intervene in daily prison op-

erations.

The use of a single monitor was the

approach, not disapproved by this Court,

in Gates v. Collier, supra. ,

The oversight of the proposed moni-

tors might well be placed in the hands of

a magistrate or a master, who could deal

with alleged, but disputed, non-compli-

ance in findings of fact and conclusions

of law, subject to the ultimate decision

of the District Judge, where appropriate.

By the single monitor method, the

prison authorities will be diverted from

the execution of their duties to the ex-

tent of conferring and cooperating with

only one court-authorized individual. As

a matter of fact, informal conferences

between the warden and only one indi-

vidual holding a charter from the Court

16a

would likely put an end to many prob-

lems without any necessity for further

reference.

Such a monitor should be a person of

undeniable qualifications, carefully cho-

sen, hopefully with experience in the op-

eration of a state or federal prison sys-

tem which has not been in litigation over

failure to abide by the Constitution.

Upon remand, and no later than thirty

days from the receipt of our mandate,

the District Court should dissolve the 39

member Committee and its functions

should be terminated. The Court should

name a monitor for each of the prisons

which are the subject of the remedial

decree. The guidelines for the monitors,

and the duties of the prison authorities

as to their cooperation with those moni-

tors, should be specifically spelled out by

an appropriate order so that none of

those involved will suffer any reasonable

doubt as to what is required of both

monitors and prison officials.

When so appointed, and their func-

tions defined, the monitors may be paid

2. It may be that one monitor could adequately

take care of more than one prison. If so, the

District Court may act accordingly.

[5855]

17a

reasonable compensation, consistently

with their qualifications and experience,

to be recovered from the State of Ala-

bama as a part of the reasonable costs of

this litigation.

Since the order appointing the 39

member Committee was not void ab ini-

tio the compensation and expense of its

members and staff as heretofore fixed

by the District Court will stand undis-

turbed, to be paid by the State as a part

of the costs of this critically important

litigation.

Appellants complain vigorously of the

actions of the District Court in assigning

a major role in the classification of pris-

oners to the Prison Classification Project

of the University of Alabama. In re-

sponse to an inquiry propounded by this

Court through appropriate judicial chan-

nels we are now in possession of an or-

der entered by the District Court on July

19, 1977, in which the Court adjudged

that the University of Alabama group is

no longer functioning insofar as these

cases are concerned. That being true,

we find this aspect of the appeal to be

moot. We make no comment thereon

18a

except to say that we understand the

classification of prisons in the Alabama

prison system will hereafter proceed un-

der the control and direction of the duly

constituted Alabama prison authorities,

with no interference or participation by

any outside group, saving, of course, the

right of the District Court by appropri-

ate measures, if needed, to see to it that

constitutionally required classification

standards, if any, are observed by the

prison authorities in the exercise of a

function which is fundamentally theirs,

McCray v. Sullivan, 5 Cir., 1975, 509 F.2d

1332.

[13] Failure of prison authorities to

provide a rehabilitation program, by it-

self, does not constitute cruel and un-

usual punishment, McCray v. Sullivan, 5

Cir., 1975, 509 F.2d 1332, 1335.

[14,15] Amicus Curiae, the United

States, concedes that there is no consti-

tutional right to rehabilitation for pris-

oners. It does proceed to argue, how-

ever, that “states have a duty to insure

that the mental, physical, and emotional

status of prisoners in their custody do

not deteriorate”. On the face of it, this

19a

is not a well considered statement. The

mental, physical, and emotional status of

individuals, whether in or out of custody,

do deteriorate and there is no power on

earth to prevent it. We think that what

the government must have meant is that

states may not inflict cruel and unusual

punishment that would likely lead to

such results. The briefs for the parties

plaintiff and for the State of Alabama

deal with this idea to considerable

length. We decline to enter this un-

charted bog. If the State furnishes its

prisoners with reasonably adequate food,

clothing, shelter, sanitation, medical care,

and personal safety, so as to avoid the

imposition of cruel and unusual punish-

ment, that ends its obligations unde:

Amendment Eight. The Constitutior

does not require that prisoners, as indi-

viduals or as a group, be provided with

any and every amenity which some per-

son may think is needed to avoid mental,

physical, and emotional deterioration.

Even so, on the facts of this case, we

affirm the actions of the District Court

designed to provide Alabama prison in-

mates with reasonable recreational facili-

ties. We do this simply because such

facilities may play an important role in

[5856]

20a

extirpating the effects of the conditions

which undisputably prevailed in these

prisons at the time the District Court

entered its order.

[16] The District Court directed that

inmates should be allowed to receive vis-

itors on at least a weekly basis. Under

our decision in McCray v. Sullivan, we

feel that visitation regulations should be

left to the prison authorities, wisely

adapted to individual circumstances if

their sound discretion should so dictate,

or included in general rules which will

allow prisoners reasonable visitation.

[17] The Court further directed that

visitors should not be “subjected to any

unreasonable searches”. Of course, no

citizen not a prisoner may be subjected

to unreasonable searches. Even s0,

within a prison the prime consideration

is the preservation of the safety and se-

curity of the prison, including the exclu-

sion of contraband. Prison authorities

have both the right and the duty by all

reasonable means to see to it that visi-

tors are not smuggling weapons or other

objects which could be used in an effort

to escape or to harm other prisoners.

AE EE ON Oe

2la

They have a duty to intercept narcotics

and other harmful contraband. This is

no more an intrusion on the rights of

visitors than the requirement that per-

sons about to board commercial aircraft

shall have their persons and baggage

electronically searched for the purpose of

determining that they are not carrying

weapons, United States v. Cyzewski, 5

Cir., 1973, 484 F.2d 509, cert. denied, 415

U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459.

That which would be unreasonable in the

outside world may be indispensable with-

in a prison.

Additionally, we conclude that prison

authorities should not be required to

maintain prison security with one eye on

the subject and the other on the conse-

quences of contempt, in which the Dis-

trict Court could convert a warden into

prisoner. If abuses actually exist, there

are other remedies less likely to interfere

with the ongoing safety of the prison.

Upon remand the District Court

should eliminate this item from its de-

cree, reserving the right to take the nec-

essary action with reference to actual

abuses if they persist to an extent justi-

fying injunctive relief.

22a

Vil

The injunction included the Governor

of Alabama. Our examination of the

record indicates that he has no hand in

the operations of the Alabama penal sys-

tem beyond the customary budget rec-

ommendations to the legislature and the

appointment of the Alabama Board of

Corrections. The statute vests all power

and control in the Board. Upon remand,

the District Court should dissolve the in-

junction entered against the Governor.

The same action should be taken as to

those members of the Board and other

prison officials who are no longer in of-

fice and thus have no further responsi-

bility for the implementation of the

Court decree. To the extent herein ap-

proved, the injunction will, of course, re-

main in full force and effect as to those

actually running the system until such

ime as it mav he shown in the vistriet

Cuuec Laat the prisens «re veing onerat-

sQimoa co w..itulional mawner :nat cne

Court shculd remove itseli irom prison

operations at the earliest date consistent

with the vindication of constitutional

rights is no doubt well known to the

District Court.

eee ee eed eagles

POD YE SO Et te ee

[5857]

23a

Vill

[18] The District Court directed that

each prisoner shall be assigned to a

meaningful job on the basis of his or her

abilities and interests, and according to

institutional needs. While there is no

federal constitutional mandate for this

proviso, as phrased it should not impose

any real burden on the penitentiary au-

thorities, so, in the context of this case

we allow it to stand, not, however, to

enjoy any precedential status in future

cases if they should arise.

[19] We interpret those portions of

the Order dealing with opportunities to

obtain a basic education, to attend voca-

tional school, and to attend a transitional

program prior to release as meaning that

if the prison authorities operate such

programs each prisoner shall have impar-

tially equal access on an objective stan-

dard of basic utility to the individual.

We would find it difficult to hold, and

we do not now hold, that if the state has

no such programs it amounts to cruel

and unusual punishment within the pro-

hibitions of the Eighth Amendment. As

a matter of fact, in the operation of a

good prison system, we understand that

such programs are fairly standard prac-

tices, instituted and operated on the ini-

tiative of state prison authorities.

24a 25a

Conclusion APPENDIX B

With the modifications herein enumer- UNITED STATES COURT OF APPEALS

ated, the judgment of the District Court For the Fifth Circuit

is affirmed. The case is remanded for

further proceedings consistent herewith No. 76-2269

and for such other and further action as ,

the District Court, pending the termina- D.C. Docket Nos. CA-3501-N,

oe : . , CA-74-57-N & CA-74-203-N

tion of this litigation, may find it neces-

sary to take for the vindication of

Eighth Amendment rights. N.H. NEWMAN et al.,

Plaintiffs-Appellees,

AFFIRMED and REMANDED.

Vv.

STATE OF ALABAMA et al.,

Defendants-Appellants.

Jerry Lee PUGH, for himself and

others similarly situated,

Plaintiffs-Appellees,

; Judson C. LOCKE, Jr. and State of

Alabama, et al.,

Defendants-Appellants.

Worley JAMES et al.,

Plaintiffs-Appellees,

Vv.

26a

George C. WALLACE et al.,

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Alabama

Before COLEMAN, Circuit Judge, KUNZIG*, Judge,

and GEE, Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Middle District of Alabama, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed; and that this cause be, and the

same is hereby remanded to the said District Court in

accordance with the opinion of this Court.

September 16, 1977

Issued as Mandate:

*Judge of the United States Court of Claims, sitting by

designation.

27a

APPENDIX C

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

November 7, 1977

EDWARD W. WADSWORTH

CLERK

TO ALL PARTIES LISTED BELOW:

NO. 76-2269 — NEWMAN v. STATE OF ALABAMA

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition(s) for rehearing,** and no

member of the panel nor Judge in regular active service

on the Court having requested that the 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 rehearing en banc 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

By /s/ Brenda M. Hauck

Deputy Clerk

28a

29a

**on behalf of all parties, APPENDIX D

cc: Mr. William J. Baxley IN THE

oe ; Ir UNITED STATES COURT OF APPEALS

Mr. W. Scears Barnes, Jr. | FOR THE FIFTH CIRCUIT

Messrs. Thomas S. Lawson, Jr.

William K. Martin

Mr. John C. Hoyle

Mr. Robert D. Segall

Mr. Joseph J. Levin, Jr.

Mr. George Peach Taylor

Messrs. Alvin J. Bronstein

Matthew L. Myers

Messrs. Walter W. Barnett

Stephen A. Whinston

[Filed NOV 28, 1977]

NO. 76-2269

N.H. NEWMAN, et al.,

Plaintiffs-Appellees,

STATE OF ALABAMA et al.,

Defendants-Appellants.

Jerry Lee PUGH, for himself and

others similarly situated,

Plaintiffs-Appellees,

Vv.

Judson C. LOCKE, Jr. and State of

Alabama, et al.,

Defendants-Appellants.

Worley JAMES et al.,

Plaintiffs-Appellees,

Vv.

30a

George C. WALLACE et al.,

Defendants-Appellants.

Appeals from the United States District Court for the

Middle District of Alabama

ORDER:

The motion of the appellants for stay of the issuance

of the mandate pending petition for writ of certiorari is

GRANTED.

The stay shall continue in force until the final

disposition of the case by the Supreme Court, provided,

however, that within the period prescribed for the filing

of the petition there shall be filed with the Clerk of

this Court the certificate of the Clerk of the Supreme

Court that the petition for certiorari has in fact been

filed.

The Clerk shall issue the mandate upon the filing of

a copy of an order of the Supreme Couit denying the

writ, or upon the expiration of the stay granted herein,

as the case may be.

This stay is granted because the undersigned is of the

opinion that the issues in this appeal are extremely

important and a decision by the Supreme Court would

clarify many issues of state prison administration.

This November 25, 1977.

/s/ J.P. Coleman

UNITED STATES

CIRCUIT JUDGE

3la

APPENDIX E

[318] Jerry Lee PUGH, for himself and all

others similarly situated, Plaintiffs,

Judson C. LOCKE, Jr., individually and

in his official capacity as Commission-

er of the Alabama Board of Correc-

tions, et al., Defendants.

WILCOX COUNTY COMMISSION, as

the governing body of the County of

Wilcox, State of Alabama, and all oth-

er counties similarly situated, and As-

sociation of County Commissions of

Alabama, a voluntary association, In-

tervening Ancillary Plaintiffs,

Melba Till ALLEN, individually and as

State Treasurer, State of Alabama, et

al., Ancillary Defendants,

Ira DeMent, United States Attorney,

Amicus Curiae.

Worley JAMES et al., Plaintiffs,

George C. WALLACE, individually and

in his official capacity as Governor

of Alabama, et al., Defendants.

32a

WILCOX COUNTY COMMISSION, as

the governing body of the County of

Wilcox, State of Alabama, and all oth-

er counties similarly situated, and As-

sociation of County Commissions of

Alabama, a voluntary association, In-

tervening Ancillary Plaintiffs,

Melba Till ALLEN, individually and as

State Treasurer, State of Alabama, et

al., Ancillary Defendants,

The National Prison Project of the

American Civil Liberties Union Foun-

dation, Inc., and Ira DeMent, United

States Attorney, Amici Curiae.

Civ. A. Nos. 74-203-N, 74-57-N.

United States District Court,

M. D. Alabama, N. D.

Jan. 13, 1976.

[32i]

33a

MEMORANDUM OPINION

JOHNSON, Chief Judge.

In these consolidated class actions,!

plaintiffs seek declaratory and injunctive

relief pursuant to 42 U.S.C. § 1983 for

deprivation of their Eighth and Four-

teenth Amendment rights. This Court

has jurisdiction under 28 U.S.C. §§ 1343,

2201 and 2202. This Court, as authoriz-

ed by Rule 52 of the Federal Rules of

Civil Procedure, incorporates in this

memorandum opinion the appropriate

findings of fact and conclusions of law.

{1] The Court finds that these ac-

tions are maintainable as class actions

under Federal Rule 23(a) and (b 2).

The class is composed of all persons pres-

ently confined by the Alabama Board of

Corrections or who may be so confined

in the future. The Court finds that the

class is so numerous that joinder is im-

practicable; that the questions of law

1. These class actions were consolidated on

June 27, 1975, and tried together. Following

trial of these cases, the pleadings in Pugh were

amended to conform to the evidence, and the

relief requested is now essentially identical to

that requested in James. Consequently, this

order will be entered in both cases. See Fed.

R.Civ.P. 15(b).

34a

and fact presented by the named plain-

tiffs are common to the class, as are the

claims presented by the class represen _a-

tives; and that the competent represen-

tation provided the named plaintiffs will

adequately protect the interests of the

class as a whole. The Court further

finds that the defendants in both cases

have acted and refused to act on

grounds applicable to the class, for which

both declaratory and injunctive relief are

appropriate. The defendants, sued in

their individual and official capacities,

are the Governor of Alabama, the Com-

missioner of the Alabama Board of Cor-

rections,? the Deputy Commissioner of

the Alabama Board of Corrections, the

members of the Board of Corrections,

the Warden of Kilby Corrections Facili-

ty,? and the Warden of G. K. Fountain

2. The original defendant, Commissioner L. B.

Sullivan, left office during the pendency of

these actions. His successor, Judson C.

Locke, Jr., replaces Sullivan as a defendant.

See Fed.R.Civ.P. 25(d).

3. Kilby Corrections Facility was formerly Mt.

Meigs Medical and Diagnostic Center. The

name of the institution was changed by Act of

the Alabama Legislature during the pendency

of these actions.

35a

Correctional Center. The predecessors in

office of these defendants, who were

sued in their individual and official ca-

pacities, are retained as individual de-

fendants. The Court has also had the

able assistance of United States Attor-

ney Ira DeMent and the American Civil

Liberties Union National Prison Project,

as amici curiae.

The complaint in Pugh v. Locke was

originally filed by an inmate of G. K.

Fountain Correctional Center on Febru-

ary 26, 1974. The amended compiaint

was filed by court-appointed counsel on

April 16, 1974, seeking declaratory, in-

[322] junctive and monetary relief for the al-

leged failure of defendants to adequately

protect the plaintiff class from violence

on the part of other inmates. The com-

plaint was filed on behalf of a class com-

posed of all inmates of the state penal

system who have been or may be con-

fined to G. K. Fountain Correctional

Center and who have been, are, or may

be subjected to such violence. At the

request of plaintiffs, the claims for mon-

etary damages were severed by order of

June 27, 1975. The action proceeded on

the claims for declaratory and injunctive

relief.

36a

The original complaint in James v.

Wallace was filed on June 21, 1974. An

amended complaint was filed thereafter

on July 29, 1974, by court-appointed

counsel. That complaint, on behalf of all

inmates incarcerated in state penal insti-

tutions, essentially alleges that defend-

ants fail to provide adequate rehabilita-

tion opportunities for inmates, maintain

conditions in these institutions which

make rehabilitation impossible, and pro-

vide the opportunities that do exist in an

unequal manner—all in violation of

plaintiffs’ Eighth and Fourteenth

Amendment rights.

After extensive pretrial discovery by

parties and amici curiae, the cases were

heard beginning August 20, 1975, in a

trial that lasted seven days. Because

many facts were stipulated, the evidence

at the trial consisted largely of expert

testimony. The cases are now submitted

on evidence offered at trial, depositions,

exhibits, photographs, briefs and over

1,000 stipulated facts. The trial conclud-

ed with the admission by defendants’

lead counsel, in open court, that the evi-

dence conclusively established aggrava-

ted and existing violations of plaintiffs’

Eighth Amendment rights.

37a

The Alabama Board of Corrections

(hereinafter the Board) is charged with

the responsibility for managing the

state’s penal institutions.‘ The Board

currently operates four large institutions

for male inmates—Holman Unit Prison,

G. K. Fountain Correctional Center,

Draper Correctional Center, and Kilby

Corrections Facility. Kilby also contains

the hospital facility for all state prison-

ers and the classification center for male

inmates. The Board also maintains Julia

Tutwiler Prison for women and the

Frank Lee Youth Center for young

men.’ Additionally, there are six road

camps, one pre-release center, and eight

work-release centers. Currently the in-

mate population of these institutions is

in excess of 5,000.

The four principal institutions are hor-

rendously overcrowded. At the time of

the trial of these cases the prison popula-

tion in these four institutions was as fol-

lows:

4. Ala.Code tit. 45, §§ 3, 10(1) (1958).

5. To be eligible for assignment to Frank Lee

Youth Center an inmate must be no more than

23 years old, must have a sentence of less than

10 years, must not have been convicted of a

crime involving violence, and must have no

history of drug abuse.

38a

Maximum Number

for Which Number in

Designed = Custody

Fountain 632 Over 1100

Holman 540 Over 750 .

Draper 632 Over 1000

Kilby 503 Over 700

The overcrowded condition of these in-

stitutions is the subject of another class

action, McCray v. Sullivan, 399 F.Supp.

271 (S.D.Ala.1975). Following the close

of evidence in the instant cases, a joint

interim order was entered by this Court

and the McCray court, enjoining the de-

fendants from accepting any new prison-

ers, except escapees and parole violators,

into these four institutions until the pop-

ulation in each is reduced to design ca-

pacity.£ The purpose of that emergency

order was to prevent aggravation of the

conditions created by the grave Eighth

Amendment violations.

The effects of severe overcrowding are

heightened by the dormitory living ar-

[323] rangements which prevail in these insti-

tutions. Bunks often are packed togeth-

er so closely that there is no walking

space between them. Sanitation and se-

6. Order of August 29, 1975.

39a

curity are impossible to maintain. There

was testimony that the quarantine popu-

lation at Kilby’ is so crowded that in-

mates have to sleep on mattresses spread

on floors in hallways and next to urinals.

As will be noted, overcrowding is pri-

marily responsible for and exacerbates

all the other ills of Alabama’s penal sys-

tem.

The dilapidation of the physical facili-

ties contributes to extremely unsanitary

living conditions. Testimony demon-

strated that windows are broken and un-

screened, creating a serious problem with

mosquitoes and flies. Old and filthy cot-

ton mattresses lead to the spread of con-

tagious diseases and body lice. Nearly

all inmates’ living quarters are inade-

quately heated and ventilated. The elec-

trical systems are totally inadequate, ex-

posed wiring poses a constant danger to

the inmates, and insufficient lighting re-

sults in eye strain and fatigue.

In general, Alabama’s penal institu-

tions are filthy. There was repeated tes-

7. Kilby is the receiving center for inmates be-

ing prc -ssed in and out of state prisons.

New inmates are kept in quarantine for ap-

proximately six weeks. Kilby also maintains a

permanent population of approximately 150.

40a

timony at trial that they are overrun

with roaches, flies, mosquitoes, and other

vermin. A public health expert testified

that he found roaches in all stages of

development—a_ certain indicator of

filthy conditions. This gross infestation

is due in part to inadequate maintenance

and housekeeping procedures, and in

part to the physical structure of the

buildings themselves. For example,

floors in many shower rooms are sO po-

rous that it is impossible to keep them

clean. Plumbing facilities are in an ex-

ceptional state of disrepair. In one area

at Draper, housing well over 200 men,

there is oné functioning toilet. Many

toilets will not flush and are overflow-

ing. Some showers cannot be turned off

and continually drip or even pour water.

Frequently there is no hot running

water for substantial periods of time.

Witnesses repeatedly commented on the

overpowering odor emanating from these

facilities.

Personal hygiene is an insurmountable

problem in these circumstances. The

parties stipulated that the state supplies

prisoners only with razor blades and

soap. It was further stipulated that the

state furnished no toothpaste, tooth-

4la

brushes, shampoo, shaving cream, razors

or combs; but that such items are avail-

able for those inmates who can afford

them. Further, household cleaning sup-

plies rarely are available for inmates to

maintain their living areas.

Food service conditions are equally un-

sanitary. Food is improperly stored in

dirty storage units, and is often infested

with insects. Mechanical dishwashers

are not adequately maintained and

therefore do not even approach the mini-

mum temperature required for proper

sanitation. Moreover, food service per-

sonnel, many of whom are inmates, are

often untrained and do not follow proper

sanitation procedures in the handling

and preparation of food. Inmates are

not supplied with reasonable eating and

drinking utensils; some inmates drink

from used tin cans, and have to wash

and save their own utensils from meal to

meal. Garbage sits in large open drums

throughout the dining halls. As a gener-

al rule, the food is unappetizing and un-

wholesome. Inmates with some source

of funds may supplement their diets

from the prison canteen, but the |

majority must subsist only on what is

supplied by the kitchen. One menu is

[324]

42a

prepared for all inmates who require a

special diet, regardless of whether it

meets their particular needs.

One expert witness, a United States

public health officer, toured facilities at

Draper, Fountain, Holman, and Kilby.

He testified at trial that he found these

facilities wholly unfit for human habita-

tion according to virtually every criteri-

on used for evaluation by public health

inspectors. With very few exceptions,

his testimony was that, if such facilities

were under his jurisdiction, he would

recommend that they be closed and con-

demned as an imminent danger to the

health of the individuals exposed to

them. This Court credits this testimony

and makes it a part of these findings.

There is no working classification sys-

tem in the Alabama penal system, and

the degree to which this impedes the

attainment of any proper objectives of a

penal system cannot be overstated. Al-

though classification personnel through-

- out the state prisons have been attempt-

ing to implement a wholly new classifi-

cation process established in January,

1975, understaffing and overcrowding

have produced a total breakdown of that

process. For no valid reason apparent

43a

from the evidence, far too many inmates

receive maximum security classifications

under the present classification system.

Moreover, during what is called the clas-

sification process, new inmates, who are

already trying to adjust to the new envi-

ronment of the prison, are restricted to

the overcrowded living quarters and are

permitted neither visitors nor recreation.

Testing and evaluation of these individu-

als, essential to a working classification

system, cannot be regarded as reliable or

even useful when conducted under such

traumatic and stressful conditions.

Prison officials do not dispute the evi-

dence that most inmates are assigned to

the various institutions, to particular

dormitories, and to work assignments al-

most entirely on the basis of available

space. Consequently, the appreciable

percentage of inmates suffering from

some mental disorder is unidentified, and

the mentally disturbed are dispersed

throughout the prison population with-

out receiving treatment. This Court

previously found in an Alabama prison

system case that approximately 10 per-

cent of the inmate population are psy-

chotic, and that another 60 percent are

44a

disturbed enough to require treatment.®

The evidence in the instant cases clearly

reflects that nothing has been done to

alleviate this situation. Some of these

inmates should, according to the undis-

puted evidence presented in these cases,

be transferred to a facility for the crimi-

nally insane, and many others should be

treated within the penal system. The

evidence further reflects that there are

also a number of mentally retarded in-

mates who need to be, according to any

humanitarian concept, identified and

placed in an appropriate environment.

A 1972 study prepared by the University

of Alabama Center for Correctional Psy-

chology, under contract with the Board

of Corrections, highlighted the woefully

inadequate mental health program in Al-

abama prisons and suggested minimum

standards. None of these recommended

standards have been implemented. The

findings and conclusions of that study

are fully supported by the evidence in

these cases.

8. Newman v. Alabama, 349 F.Supp. 278 (M.D.

Ala.1972), aff'd in part 503 F.2d 1320 (5th Cir.

1974), cert. denied 421 U.S. 948, 95 S.Ct. 1680,

44 L.Ed.2d 102 (1975).

45a

Further effects of failure to classify

are manifold. Violent inmates are not

isolated from those who are young, pas-

sive, or weak. Consequently, the latter

inmates are repeatedly victimized by

those who are stronger and more aggres-

sive. Testimony shows that robbery,

rape, extortion, theft and assault are ev-

eryday occurrences among the general

inmate population. Rather than face

this constant danger, some inmates vol-

untarily subject themselves to the inhu-

man conditions of prison isolation cells.

Emotional and physical disabilities

which require special attention pass un-

noticed. There is no rational basis on

which to assign inmates to the few voca-

tional, educational and work opportuni-

ties which do exist. All of this contrib-

utes to the apathy, tension and frustra-

tion which pervade Alabama prisons.

The inmate population also contains a

number of aged and infirm who are of-

ten housed in dormitories in which condi-

tions are particularly hazardous. There

[325] are no special programs to meet the

needs of these people and they are fre-

quently unprotected from the general

population. For example, in Draper

such prisoners—some of them confined

46a

to wheelchairs, others scarcely able to

move without help—are left without su-

pervision in second-floor quarters that

are accessible only by stairway, with no

means of evacuation in the event of fire

or other physical emergency, and utterly

helpless in the event of the sort of medi-

cal emergency to which the elderly are

susceptible. In this idleness, filth and

despair, the condition of these inmates

can be expected only to deteriorate fur-

ther.

Each of these failings in Alabama’s

penal system is compounded by that sys-

tem’s most pervasive and most obvious

problem: the overcrowding with which

all prisoners must live. Yet even if the

inmate population were reduced to de-

sign capacity, the system would still be

woefully understaffed. Former Commis-

sioner Sullivan testified that the four

large institutions alone need, at a mini-

mum, 692 guards, but that they current-

ly employ only 383. Guards rarely enter

the cell blocks and dormitories, especially

at night when their presence is most

needed. The extremely high inmate-to-

staff ratio makes personal interaction

between the two virtually impossible be-

47a

cause staff members must spend all their

time attempting to maintain control or

to protect themselves.

Another result of understaffing is that

some inmates have been allowed to as-

sume positions of authority and control

over other inmates, creating opportuni-

ties for blackmail, bribery, and extortion.

Some prisoners are used as “strikers” to

guard other inmates on farm duty and

as “cell flunkies” to maintain order and

perform tasks for prison staff. They are

afforded special privileges, including

freedom to ignore prison regulations and

to abuse other inmates. Inmate clerks

have access to the institutional files and

mail of other inmates; inmate medical

aides are used to dispense some medi-

cation, which they may withhold at will.

The problems posed by understaffing

are aggravated by the fact that most of

the large institutions are located in rural

areas of the state. The guards, drawn

largely from the local population, are

practically all white and rural in contrast

to the predominantly black and urban

inmate population they supervise. A

number of witnesses testified that staff

members address black inmates with ra-

cial slurs, further straining already tense

relations.

48a

In view of the foregoing, the rampant

violence and jungle atmosphere existing

throughout Alabama’s penal institutions

are .no surprise. The evidence reflects

that most prisoners carry some form of

homemade or contraband weapon, which

they consider to be necessary for self-

protection. Shakedowns to remove

weapons are neither sufficiently thor-

ough nor frequent enough to significant-

ly reduce the number of weapons.

There are too few guards to prevent out-

breaks of violence, or even to stop those

which occur.

While it is clear that violence is wide-

spread, there are. no accurate statistics

on the incidence of violence. A cardinal

precept of the convict culture is that no

inmate should report another inmate to

officials. This reluctance to report vio-

lence is compounded by the failure of

prison officials to keep accurate records

of violence which does come to their at-

tention.

One 20-year-old inmate, after relating

that he has been told by medical experts

that he has the mind of a five year old,

testified that he was raped by a group of

inmates on the first night he spent in an

Alabama prison. On the second night he

[326]

49a

was almost strangled by two other in-

mates who decided instead that they

could use him to make a profit, selling

his body to other inmates.

An inmate required to live in these

circumstances stands no chance of leav-

ing the institution with a more positive

and constructive attitude than the one

he or she brought in. The evidence re-

flects that even if rehabilitation pro-

grams, adequate in number and quality,

were available, whatever benefit might

be derived from them could be undone

quickly by this inhumane environment.

Consequently, this Court finds that. these

conditions create an environment in

which it is impossible for inmates to re-

habilitate themselves—or to preserve

skills and constructive attitudes already

possessed—even for those who are in-

clined to do so. Further, this Court

finds that these conditions create an en-

vironment that not only makes it impos-

sible for inmates to rehabilitate them-

selves but also makes dehabilitation in-

evitable.

Inmates are denied any meaningful

opportunity to participate in vocational,

educational or work activities. As a re-

sult, most inmates must spend substan-

50a

tially all of their time crowded in dormi-

tories in absolute idleness. Such unbro-

ken inactivity increases boredom, tension

and frustration, which in turn promote

incidents of violence. The evidence re-

flects that idleness of this magnitude de-

stroys any job skills and work habits in-

mates may have, and contributes to their

mental and physical degeneration.

An examination of the very: few reha-

bilitative programs which do exist re-

veals that they are totally inadequate to

provide reasonable opportunities for re-

habilitation—or even to prevent physical

and mental deterioration—of most of the

inmate population. It was stipulated

that the average reading level of prison-

ers entering the penal system in the first

quarter of the year 1975 was below the

sixth grade level. Yet basic education

classes are available to only a small

number of inmates. For example, Hol-

man Prison, with more than 750 inmates,

offers Adult Basic Education for only 40

inmates at any one time. At Kilby, an

inmate conducts that institution’s only

basic education class.

While the Board of Corrections has

made some recent efforts to increase vo-

cational training and work opportunities,

5la

those programy are available to only a

limited number of selected inmates. Eli-

gibility requirements for most programs

are quite restrictive.®

In light of the stipulation that 59 per-

cent of Alabama’s state prisoners are un-

skilled—and that another 5.5 percent

claim no occupation—it is clear that ac-

cess to existing programs for these pris-

oners who need vocational training is

minimal. For those few inmates who

qualify, the range of occupations and

trades offered is extremely limited.

The Board offers an acceptable reha-

bilitation opportunity to a limited nwm-

ber of inmates through one pre-release

center and eight work-release centers.

In addition to providing job skills, the

programs allow prisoners to gradually

re-enter the community and to save

some money, up to 75 percent of their

salaries, prior to release. Again, there

are stringent eligibility requirements for

the few openings in these programs.

9. For example, for entry into many programs

an inmate must have no disciplinary violations

for six months prior to enrollment, must have

no holdovers, must have a regular duty assign-

ment, must not be considered a security risk,

and must be within 18 months of his or her

release date upon completion of the course.

52a

' The single exception to the dearth of

rehabilitation programs is the Frank Lee

Youth Center. However, that institution

houses approximately 200 selected in-

mates who meet strict objective and sub-

jective criteria.” Most inmates at Frank

Lee can expect to participate in a num-

ber of educational, vocational and recrea-

tional activities. To date the inmate

population at Frank Lee has been over

50 percent white in contrast to the pre-

dominantly black populations at other

state penal institutions.

Institutional work assignments offer

little to motivate inmates. There are too

few jobs and most take only a few hours

to perform. Frequently many more in-

mates are assigned to a particular job

[327] than are required to accomplish it. Pris-

oners work for no pay and at jobs which

do not teach usable skills. Inmates at

Fountain and Holman, most of whom in-

tend to return to metropolitan areas

upon release, are routinely assigned to

farm labor. Fountain operates a license

10. See note 5 supra. The Director of the

Frank Lee Youth Center, William Gilmore, tes-

tified that he relied on his own subjective eval-

uation, as well as the criteria outlined in note

5, in selecting inmates.

ee! PME OP Ae ME eh te ne Mow ee

53a

tag plant, and Draper has a mattress

factory. Neither of these programs is

available to any significant number of

inmates. Other inmates who have an

assigned task perform housekeeping

functions for the institution. As ob-

served, the lack of meaningful work op-

portunities contributes to idleness, bore-

dom, apathy and frustration.

The flow of money through Alabama

prisons is for all practical purposes un-

controlled. Each prisoner receives 25

cents per week from the state, as well as

postage and paper for one letter each

week. There are almost no legitimate

means for an inmate te earn morey.

Some prisoners receive substantial sums

from outside sources and through contra-

band activities. Money is required to

buy personal hygiene items, food to sup-

plement the prison diet, and postage.

Money can also buy drugs, alcohol,

changes in institutional records, special

privileges, sex, and housekeeping favors.

Interest collected on loans made by in-

mates with money is exorbitant, and

may be collected in a ruthless manner.

Gambling, smuggling, and extortion are

several of the abuses fueled by the fail-

ure of prison officials to control the pos-

54a

session of currency inside the institution.

Finally, many prisoners must make the

difficult transition from prison life on

the pittance the state provides them

upon release.!!

There is no organized recreation pro-

gram for Alabama’s prisons. While

some athletic facilities and equipment

are available, they are not properly

maintained. Almost no provision is

made for inmates to participate in hob-

bies. Consequently, inmates have little

to occupy the inordinate amount of free

time they must fill.

The chances of successful rehabilita-

tion or the chances of escaping mental

and physical degeneration are also di-

minished by the fact that prison environ-

ment is much different from that in the

society to which an inmate must return.

11. The state is required by statute to provide

an inmate, upon release, with “a decent suit of

clothes and with the least expensive mode of

public transportation back to the point of sen-

tencing . ...” Ajla.Code tit. 45 § 54

(Supp.1973). The state also provides ten dol-

lars in cash to all inmates serving five years or

less, and an additional two dollars per year for

each additional year served. Ala.Code tit. 45

§ 55 (1958).

55a

Current visitation policies discourage vis-

its—which are essential to the mainte-

nance of community ties—and therefore

decrease an inmate’s chances of success-

ful reintegration upon release. Some in-

stitutions allow visitors only on alternate

Sundays, while inmates in quarantine at

Kilby are permitted no visitors. Visiting

areas are overcrowded and uncomforta-

ble, allow no privacy, and prohibit physi-

cal contact in some instances. Public

transportation to institutions located in

remote areas of the state is infrequent

and too expensive for many people to

use regularly.

An oral order enju:ning the use of tso-

lation a..d segregation cells which do not

meet minimum standards was issued by

the Court at the conclusion of the trial

in these cases. The indescribable condi-

tions in the isolation cells required imme-

diate action to protect inmates from any

further torture by confinement in those

cells. As many as six inmates were

packed in four foot by eight foot cells

with no beds, no lights, no running

water, and a hole in the floor for a toilet

which could only be flushed from the

outside. The infamous Draper “dog-

house” is a separate building, locked

56a

from the outside, with no guard sta-

tioned inside. Inmates in punitive isola-

tion received only one meal per day, fre-

quently without utensils. They were

permitted no exercise or reading materi-

al and could shower only every 11 days.

Punitive isolation has been used to pun-

ish inmates for offenses ranging from

[328] swearing at guards and failing to report

to work on time, to murder.

[2,3] In light of the foregoing facts,

this Court has a clear duty to require the

defendants in these cases to remedy the

massive constitutional infirmities which

plague Alabama’s prisons. It is with

great reluctance that federal courts in-

tervene in the day-to-day operation of

state penal systems, Procunier v. Mar-

tinez, 416 U.S. 396, 404—05, 94 S.Ct. 1800,

40 L.Ed.2d 224 (1974); Cruz v. Beto, 405

U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d

263 (1972); Novak v. Beto, 453 F.2d 661,

671 (5th Cir. 1971); Diamond v. Thomp-

son, 364 F.Supp. 659, 662 (M.D.Ala.1973),

a function they are increasingly required

to perform.” While this Court continues

12. Federal courts in a number of states includ-

ing Massachusetts, Inmates of Suffolk County

Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass.

[footnote continued]

57a

to recognize the broad discretion re-

quired for prison officials to maintain

orderly and secure institutions, Procunier

v. Martinez, 416 U.S. at 404—05, 94 S.Ct.

1800; Diamond v. Thompson, 364

F.Supp. 659 (M.D.Ala.1973); Newman v.

Alabama, 349 F.Supp. 278 (M.D.Ala.

1972), aff'd in part 503 F.2d 1320 (5th

Cir. 1974), cert. denied 421 U.S. 948, 95

S.Ct. 1680, 44 L.Ed.2d 102 (1975), consti-

tutional deprivations of the magnitude

1973), aff'd 494 F.2d 1196 (lst Cir. 1974);

Maryland, Collins v. Schoonfield, 344 F.Supp.

257 (D.Md.1972); Arkansas, Holt v. Sarver,

309 F.Supp. 362 (E.D.Ark.1970), aff'd 442 F.2d

304 (8th Cir. 1971); and Mississippi, Gates v.

Collier, 349 F.Svop. 881 (N.D.Miss.1972), aff'd

501 F.2d 1291 (Sth Cir. 1974), recently have

had occasion to hold conditions in penal insti-

tutions in those states unconstitutional. In Al-

abama, this Court in previous cases has ad-

dressed the issues of inadequate medical care,

Newman v. Alabama, 349 F.Supp. 278 (M.D.

Ala.1972), aff'd in part 503 F.2d 1320 (5th Cir.

1974), cert. denied 421 U.S. 948, 95 S.Ct. 1680,

44 L.Ed.2d 102 (1975); and disciplinary proce-

dures, Diamond v. Thompson, 364 F.Supp. 659

(M.D.Ala.1973), in the state’s prisons. Federal

courts in other districts of this state have

found unconstitutional conditions in both .

state, McCray v. Sullivan, 399 F.Supp. 271

(S.D.Ala.1975), and local, Thrasher v. Bailey,

CA 73P 816-S (N.D.Ala. Aug. 29, 1973), penal

facilities.

58a

presented here simply cannot be counte-

nanced, and this Court is under a duty

to, and will, intervene to protect incar-

cerated citizens from such wholesale in-

fringements of their constitutional

rights. See Procunier v. Martinez, 416

U.S. at 405—06, 94 S.Ct. 1800; Johnson v.

Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 21

L.Ed.2d 718 (1969).

[4-7] Federal litigation by prisoners

alleging systemic constitutional deficien-

cies has mushroomed in recent years.

There has been growing recognition by

the courts that prisoners retain all rights

enjoyed by free citizens except those

necessarily lost as an incident of confine-

ment. See Pell v. Procunier, 417 U.S.

817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495

(1973); Jackson v. Godwin, 400 F.2d 529,

532 (5th Cir. 1968); Washington v. Lee,

263 F.Supp. 327, 331 (M.D.Ala.1966),

aff'd per curiam, 390 U.S. 333, 88 S.Ct.

994, 19 L.Ed.2d 1212 (1968); cf. Price v.

Johnston, 334 U.S. 266, 285, 68 S.Ct.

1049, 92 L.Ed. 1356 (1948); Gates v. Col-

lier, 501 F.2d 1291 (5th Cir. 1974). The

Supreme Court recently identified three

legitimate functions of a correctional

system: deterrence, both specific and

ven ee ee eS

poate ST oe

wer ne

59a

general; rehabilitation; and institutional

security. Pell v. Procunier, 417 U.S. at

822-23, 94 S.Ct. 2800. “It is in the light

of these legitimate penal objectives that

a court must assess challenges to prison

regulations based on asserted constitu-

tional rights of prisoners.” Id. at 823, 94

S.Ct. at 2804. Therefore, when a prison

policy advances one of these valid goals,

the Court is required to weigh the com-

peting interests of the prisoner and of

the state in pursuing that goal. When

an inmate is restricted in a manner

which supports no such valid purpose,

that restriction cannot stand.

[8-10] Prisoners are entitled to be

free of conditions which constitute cruel

and unusual punishment in violation of

the Eighth and Fourteenth Amend-

ments, The content of the Eighth

Amendment is not static but “must draw

its meaning from the evolving standards

of decency that mark the progress of a

maturing society.” Trop v. Dulles, 356

U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d

[329] 680 (1958). There can be no question

that the present conditions of confine-

ment in the Alabama penal system vio-

late any current judicial definition of

cruel and unusual punishment, a situa-

60a

tion evidenced by the defendants’ admis-

sion that serious Eighth Amendment vio-

lations exist.“ In these circumstances, it

is the very confinement itself which im-

permissibly contravenes the Eighth and

Fourteenth Amendment rights of the

plaintiff classes.

[C]jonfinement itself within a given in-

stitution may amount to a cruel and

unusual punishment prohibited by the

Constitution where the confinement is

characterized by conditions and prac-

tices so bad as to be shocking to the

conscience of reasonably civilized peo-

ple even though a particular inmate

may never personally be subject to

any disciplinary action.

Holt v. Sarver, 309 F.Supp. 362, 372—73

(E.D.Ark.1970), aff'd 442 F.2d 304 (8th

Cir. 1971).

The conditions in which Alabama pris-

oners must live, as established by the

evidence in these cases, bear no reasona-

ble relationship to legitimate institution-

13. Defendants through their lead counsel, the

Honorable Robert S. Lamar, Jr., admitted in

open court, at the close of trial, that plaintiffs

had proved serious Eighth Amendment viola-

tions.

—_— led tel

6la

al goals. As a whole they create an

atmosphere in which inmates are com-

pelled to live in constant fear of vio-

lence, in imminent danger to their physi-

cal well-being, and without opportunity

to seek a more promising future.

{11} The living conditions in Alabama

prisons constitute cruei and unusual pun-

ishment. Specifically, lack of sanitation

throughout the institutions—in living

areas, infirmfries, and food service—

presents an imminent danger to the

health of each and every inmate. Pris-

oners suffer from further physical dete-

rioration because there are no opportuni-

ties for exercise and recreation. Treat-

ment for prisoners with physical or emo-

tional problems is totally inadequate.

This Court has previously ordered that

the penal system provide reasonable

- medical care for inmates in these institu-

tions on a finding that

[flailure of the Board of Corrections to

provide sufficient medical facilities

and staff to afford inmates basic ele-

ments of adequate medical care consti-

tutes a willful and intentional viola-

tion of the rights of prisoners guaran-

teed under the Eighth and Fourteenth

Amendments.

62a

Newman v. Alabama, 349 F.Supp. at

285-86. The evidence in these cases

leads to the inescapable conclusion that

the gross inadequacies in medical care

_ found in that case have not been reme-

died.

[12] Prison officials are under a duty

to provide inmates reasonable protection

from constant threat of violence.

While occasional, isolated attacks by

one prisoner on another may not con-

stitute cruel and unusual punishment,

Penn v. Oliver, 351 F.Supp. 1292 (E.D.

Va.1972), confinement in a prison

where violence and terror reign is ac-

tionable. A prisoner has a right, se-

cured by the eighth and fourteenth

amendments, to be reasonably protect-

ed from constant threat of violence

and sexual assault by his fellow in-

mates, and he need not wait until he is

actually assaulted to obtain relief.

Woodhous v. Commonwealth of Virginia,

487 F.2d 889, 890 (4th Cir. 1973); see

Finney v. Arkansas Board of Cor-

rections, 505 F.2d 194, 201 (8th Cir.

1974); Gates v. Collier, 501 F.2d 1291,

1308—09 (5th Cir. 1974); Holt v. Sarver,

309 F.Supp. 362, 376-78, 381 (E.D.Ark.

1970), aff’d 442 F.2d 304 (8th Cir. 1971).

63a

[13] The defendants in these cases

have failed to carry out that duty. The

evidence establishes that inmates are

housed in virtually unguarded, over-

crowded dormitories, with no realistic at-

tempt by officials to separate violent,

aggressive inmates from those who are

passive or weak. The tension generated

[330] by idleness and deplorable living condi-

tions contributes further to the ever-

present threat of violence from which

inmates have no refuge.

[14] The evidence in these cases also

establishes that prison conditions are so

debilitating that they necessarily deprive

inmates of any opportunity to rehabili-

tate themselves, or even to maintain

skills already possessed. While courts

have thus far declined to elevate a posi-

tive rehabilitation program to the level

of a constitutional right, it is clear that a

penal system cannot be operated in such

a manner that it impedes an inmate’s

ability to attempt rehabilitation, or sim-

ply to avoid physical, mental or social

deterioration.

The absence of an affirmative pro-

gram of training and rehabilitation

may have constitutional significance

where in the absence of such a pro-

64a

gram conditions and practices exist

which actually militate against reform

and rehabilitation.

Holt v. Sarver, 309 F.Supp. at 379.

[15] Not only is it cruel and unusual

punishment to confine a person in an

institution under circumstances which in-

crease the likelihood of future confine-

ment, but these same conditions defeat

- the goal of rehabilitation which prison

officials have set for their institutions.

See James v. Wallace, 382 F.Supp. 1177,

1180 n.4 (M.D.Ala.1974).

[16-18] Prisoners are protected by

the Due Process and Equal Protection

clauses of the Fourteenth Amendment,

Washington v. Lee, supra; therefore,

they must be free from arbitrary and

capricious treatment by prison officials.

Sostre v. McGinnis, 442 F.2d 178, 198—99

(2d Cir. 1971) (en banc), cert. denied sub

nom. Sostre v. Oswald, 404 U.S. 1049, 92

S.Ct. 719, 30 L.Ed.2d 740 and sub nom.

Oswald v. Sostre, 405 U.S. 978, 92 S.Ct.

1190, 31 L.Ed.2d 254 (1971); Jackson v.

Godwin, 400 F.2d 529, 532 (5th Cir. 1968).

There is evidence in these cases that the

Alabama penal system makes available a

very limited number of vocational, edu-

cational, and work opportunities. Open-

65a

ings in whatever programs are offered

must be assigned on a reasonable and

rational basis. See Thompson v. Gal-

lagher, 489 F.2d 443 (5th Cir. 1973).

Currently, inmates are able to buy and

sell desirable jobs. Moreover, while the

prison system is entitled to make ration-

al distinctions in making assignments, it

is impossible to do so without a function-

-ing classification system.

[19,20] The inmates’ ability to en-

gage in rehabilitation is further frustrat-

ed by unreasonable restrictions on visita-

tion from family and friends. Any re-

strictions imposed by the prisons’ visita-

tion policies must be reasonably related

to a legitimate governmental interest.

See Thompson v. Gallagher, supra. The

visitation policies currently employed by

Alabama penal institutions do not serve

the valid penal objectives defined by the

Supreme Court in Pell v. Procunier, 417

U.S. at 822-23, 94 S.Ct. 2800.

[21] The response of the defendants

to the matters set forth in this opinion

consistently has been that they cannot

alleviate the conditions because of inade-

quate funding by the state legislature.

However, a state is not at liberty to

66a

afford its citizens only those constitu-

tional rights which fit comfortably with-

in its budget. The Alabama Legislature

has had ample opportunity to make pro-

vision for the state to meet its constitu-

tional responsibilities in this area, and it

has failed to do so. It is established

beyond doubt that inadequate funding is

no answer to the existence of unconstitu-

tional conditions in state penal institu-

tions.

Let there be no mistake in the matter;

the obligation of the Respondents to

eliminate existing unconstitutionalities

does not depend upon what the Legis-

lature may do, or upon what the Gov-

ernor may do, or, indeed, upon what

Respondents may actually be able to

accomplish. If Arkansas is going to

operate a Penitentiary System, it is

going to have to be a system that is

countenanced by the Constitution of

the United States.

[331] Holt v. Sarver, 309 F.Supp. at 385. See

Finney v. Arkansas Board of Cor-

rections, 505 F.2d 194, 201 (8th Cir.

1974); Gates v. Collier, 501 F.2d 1291,

1319-20 (5th Cir. 1974).

[22-25] In Wood v. Strickland, 420

U.S. 308, 95 S.Ct. 992, 48 L.Ed.2d 214

67a

(1975), the Supreme Court held that, un-

der Section 1983, plaintiffs can recover

money damages from state officials if

the officials acted either in bad faith or

in “disregard of settled, indisputable

law.” Id. at 321, 95 S.Ct. 992. To put it

another way: a public official may be

held liable where he, in subjective good

faith, acts in disregard of a person’s

“clearly established constitutional

rights.” Id. at 322, 95 S.Ct. 992. The

Court now acts in these cases with a

recognition that prisoners are not to be

coddied, and prisons are not to be oper-

ated as hotels or country clubs. How-

ever, this does not mean that responsible

state officials, including the Alabama

Legislature, can be allowed to operate

prison facilities that are barbaric and in-

humane. Let the defendant state offi-

cials now be placed on notice that failure

to comply with the minimum standards

set forth in the order of this Court filed

with this opinion will necessitate the

closing of those several prison facilities

herein found to be unfit for human con-

finement.

68a

The costs of these proceedings will be

taxed against the defendants.

An order will be entered accordingly.

ORDER

Pursuant to the findings of fact and

conclusions of law set forth in the mem-

orandum opinion made and entered in

this cause this date, it is the order, judg-

ment and decree of this Court that:

1. Defendants, George C. Wallace, in-

dividually and in his official capacity as

Governor of Alabama; The State of Ala-

bama; The Alabama Board of Correc-

tions; Judson C. Locke, Jr., individually

and in his official capacity as Commis-

sioner of the Alabama Board of Correc-

tions; L. B. Sullivan, individually and in

his capacity as Deputy Commissioner of

the Alabama Board of Corrections; Bill

Long, individually and in his official ca-

pacity as Warden of Kilby Corrections

Facility; J. O. Davis, individually and as

Warden of G. K. Fountain Correctional

Center; M. B. Harding, individually; H.

Crouch, individually; Yetta G. Samford,

Jr., individually; Dr. Max V. McLaugh-

lin, individually; and Reverend John E.

Vickers, Dr. Thomas F. Staton, Dr. Mari- ~

on L. Carroll, Jr.. and Mr. Thomas E.

69a

Bradford, Sr., individually and as mem-

bers of the Board of Corrections of the

State of Alabama, their agents, employ-

ees, successors in office and any others

acting in concert with them, be and each

is hereby enjoined from failing to imple-

ment fully and within the times pre-

scribed each of the requirements set

forth in Appendix A to this decree.

2. A Human Rights Committee for

the Alabama Prison System be and is

hereby designated and appointed. The

members of that Committee are listed in

Appendix B attached hereto and incorpo-

rated herein. The members of the Com-

mittee shall be paid on a per diem basis

and shall be reimbursed for travel and

other expenses necessarily incurred at

the same rate and in the same manner

as members of the Alabama Board of

‘Corrections. The function of the Human

Rights Committee, acting as a Commit-

tee as a whole or through standing sub-

committees appointed by the Committee

chairman, shall be to monitor implemen-

tation of the standards set forth in Ap-

pendix A to this decree. In view of this

Court’s finding that the standards estab-

lished in Newman v. Alabama, 349

F.Supp. 278, aff’d in part 503 F.2d 1320

70a

(5th Cir. 1974), cert. denied 421 U.S. 928,

95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), have

not been implemented, the Human

Rights Committee shall also have the au-

thority and duty to monitor implementa-

tion of the requirements of that order.

The Committee may at reasonable times

inspect the state prison facilities, inter-

view inmates, and inspect institutional

records. The Committee shall review

plans for implementation of this decree

to ensure that they comport with the

minimum standards set forth. At its

[332] discretion, the Committee may engage

and consult appropriate, independent

specialists who shall be compensated by -

the Board of Corrections. The Commit-

tee shall be authorized to take any ac-

tion reasonably necessary to accomplish

its function. The Committee is also

hereby authorized and empowered to

employ upon a full time basis a staff

consultant, trained and experienced in

the operation of state prison systems, an-

swerable only to the Human Rights

Committee; said full time consultant

shall be paid upon a basis and at a rate

commensurate with the remuneration

being received by the Commissioner of _

the Alabama Board of Corrections. The

Committee is further authorized and em-

7la

powered to employ [to be paid by the

defendant Board] one full time clerk-ste-

nographer, responsible only to the Com-

mittee. Adequate physical facilities and

equipment and supplies will be made

available to the consultant and to the

clerk by the Alabama Board of Correc-

tions.

3. The defendants, within six months

from this date, shall submit to this Court

a comprehensive report setting forth

their progress in the implementation of

each and every standard. The report

shall set forth reasons for the incomplete

implementation of any standard. The

report shall also include a time-table for

full compliance.

4. The court costs incurred in these

proceedings be and are hereby taxed

against the defendants. The defendants

are ordered to pay to the Clerk of this

Court within 30 days the court costs, as

set forth on the costs bills of plaintiffs’

attorneys.

5. Jurisdiction of these cases be and

is hereby specifically retained.

72a

APPENDIX A

MINIMUM CONSTITUTIONAL STAN-

DARDS FOR INMATES OF ALA-

BAMA PENAL SYSTEM

I. Overcrowding

1. The number of inmates in each in-

stitution in the Alabama penal system

shall not exceed the design capacity for

that institution. No new prisoners, ex-

cept escapees and parole violators who

have had their paroles revoked, may be

accepted until the inmate population is

no greater than the design capacity for

each facility.

II. Segregation and Isolation

1. No more than one prisoner shall be

confined in a single cell, and each such

cell shall be a minimum of 40 square

feet. Within six months, the area of

each single occupancy isolation cell shall

be no less than 60 square feet.

2. Each cell shall be equipped with a

toilet which can be flushed from the in-

side, a sink with hot and cold running

water, ventilation and lighting which

73a

meet minimum standards of the United

States Public Health Service, clean linen,

and a bed off the floor.

3. Each inmate confined in isolation

shall be

(a) permitted to bathe at least every

other day;

(b) provided three wholesome and nu-

tritious meals per day, served with

eating and drinking utensils;

and linens as are required to be

provided to the general inmate

population;

(d) provided reading and writing ma-

terials, and allowed any personal

legal papers or research materials;

(e) allowed at least 30 minutes out-

door exercise per day; and

(f) afforded adequate medical and

mental health care, including ex-

amination by a physician and a

qualified mental health care pro-

fessional at least every third day.

No inmate shall be deprived of

physical aids or prosthetic devices.

4. Confinement in isolation shall be

imposed as punishment only after com-

pliance with the requirements of due

74a

process as set forth in Wolff v. McDon-

nell, 418 U.S. 539, 94 S.Ct. 2963, 41

L.Ed.2d 935 (1974). Any period of con-

[333] finement for the purpose of punishment

shall not exceed 21 days.

5. Any prisoner who is voluntarily

segregated must be released imivediately

upon request.

6. The confinement of any prisoner in

administrative segregation must be re-

viewed at least every seven days, and

the prisoner must be released from seg-

regation unless such review determines

that there is good cause for continued

segregation.

Ill. Classification

1. By April 15, 1976, the defendants

shall file with the Court a plan for the

classification of all inmates incarcerated

in the Alabama penal system. The

Board of Corrections shall contract with

the University of Alabama Department

of Correctional Psychology to aid in the

implementation of that plan. The classi-

fication shall be fully completed no later

than August 16, 1976.

2. The plan to be submitted to the

Court shall include:

75a

(a) due consideration to the age; of-

fense; prior criminal record; voca-

tional, educational and work

needs; and physical and mental

health care requirements of each

inmate;

(b) methods of identifying aged, in-

firm, and _ psychologically dis-

turbed or mentally retarded in-

mates who require transfer to a

more appropriate facility, or who

require special treatment within

the institution; and

mates for whom transfer to a pre-

release, work-release, or other

community-based facility would be

appropriate.

3. The classification of each inmate

shall be reviewed at least annually.

IV. Mental Health Care

1. The defendants shall identify those

inmates who, by reason of psychological

disturbance or mental retardation, re-

quire care in facilities designed for such

persons, and arrangements shall be made

for the transfer of such inmates.

2. The defendants shall identify those

inmates who require mental health care

76a

within the institution and make arrange-

ments for the provision of such care.

38. The defendants shall hire at least

those mental health professionals and

support personnel as set forth in Mini-

mum Mental Health Standards for the

Alabama Correctional System. (Center

for Correctional Psychology, University

of Alabama, December 1972).

V. Protection from Violence

1. The defendants shall make reason-

able efforts, including classification and

monitoring, to segregate inmates known

to engage in violence and aggression.

2. Only minimum custody inmates

may be assigned to dormitories.

3. The defendants shall establish reg-

ular procedures, including frequent

shakedowns and frisks of inmates re-

turning to the institutions, to reduce the

number of weapons held by inmates.

4. Defendants shall enforce prison

regulations designed to reduce violence,

including rules against fighting, posses-

sion of weapons, gambling, or possession

of currency within the institutions. In-

mates, except those in pre-release and

work-release type programs, shall not

possess currency. Defendants shall insti-

[334]

77a

tute a scrip system for approved intra-

institutional purchases by inmates.

5. With the exception of isolation

units, guards shall be stationed inside

living areas, including dormitories, at all

times. There shall be at least one guard

inside, and one guard outside, all living

areas at all times. As to isolation units,

guards must be stationed at all times so

as to have visual and voice contact with

the isolated prisoners.

6. At no time shall prisoners be used

to guard other prisoners, nor shall pris-

oners be placed in positions of authority

over other inmates.

7. The defendants shall keep accurate

records of incidents of violence which

come to their attention, and all assaults

and other offenses punishable under the

laws of Alabama shall be reported forth-

with to the local district attorney. Ac-

curate records shall be kept reflecting

the disposition of such incidents by pris-

on authorities and any resultant criminal

prosecutions undertaken.

VI. Living Conditions

1. Prisoners shall be supplied, with-

out charge, toothbrushes, toothpaste,

78a

shaving cream, razors and razor blades,

soap, shampoo, and combs. Each prison-

er also shall be provided adequate clean

clothing and a storage locker with a lock.

2. Each prisoner shall be supplied

weekly with clean bed linen and towels.

3. Each inmate shall have access to

household cleaning supplies in order to

maintain living areas, and sanitary con-

ditions within the institutions shall meet

minimum public health standards. The

defendants shall be responsible for im-

plementing a regular and effective pro-

gram of insect and rodent control.

4. All institutions shall be adequately

heated, lighted and ventilated. Windows

and doors shall be properly screened and

otherwise properly maintained. FElectri-

cal wiring must be safe.

5. Each prisoner shall have a bed off

the floor, a clean mattress, and blankets

as needed.

6. Each institution shall maintain in

working order one toilet per 15 inmates,

one urinal or one foot of urinal trough

per 15 inmates, one shower per 20 in-

mates, and one lavatory per 10 inmates.

79a

7. Each inmate shall have a minimum

of 60 square feet of living space.

VII. Food Service

1. Every prisoner is entitled to three

wholesome and nutritious meals per day,

served with proper eating and drinking

utensils.

2. The food served to inmates shall

be nutritionally adequate and properly

prepared under the direction of a food

service supervisor for each institution;

each supervisor shall have at least bache-

lor’s level training in dietetics or its

equivalent. The defendants shall employ

a nutrition consultant for the Board of

Corrections, who shall be a registered

dietitian, to assist in menu planning,

methods of food preparation, purchasing

standards, and sanitation.

3. Food shall be stored, prepared and

served under sanitary conditions which

meet minimum public health standards.

Equipment shall be maintained in good

working condition. All kitchen employ-

ees shall be trained in the handling of

food and those who assist in the prepara-

tion of food shall receive training in food

preparation. Regulations relating to

food service will. be rigorously enforced.

80a

4. Each inmate who requires a special

diet for reasons of health or religion

shall be provided a diet to meet his or

her individual need.

VIII. Correspondence and Visitation

1. Defendants shall not limit the

number or length of letters a prisoner

may send or receive. Mail to or from

courts, attorneys or other public officials

shall be inspected only for contraband,

and only in the presence of the prisoner

to whom it is addressed or by whom it is

mailed. Inspection or censorship of oth-

er mail must be in accordance with the

standards set forth in Procunier v. Mar-

tinez, 416 U.S. 396, 94 S.Ct. 1800, 40

L.Ed.2d 224 (1973). The defendants

shall supply postage and paper for up to

five letters per week for each inmate.

2. Each institution shall provide a

comfortable, sheltered area for visita-

tion. The visiting area must not, except

for security purposes that have been doc-

umented, physically separate visitors

from inmates. Visitation policies must

permit an inmate to receive visitors on

at least a weekly basis, and rules govern-

ing visitation must allow reasonable time

and space for each visit. Visitors shall

8la

not be subjected to any unreasonable

searches. Inmates undergoing initial

classification shall not be denied visita-

tion privileges.

[335] IX. Educational, Vocational, Work and

Recreational Opportunities

1. Each inmate shall be assigned a

meaningful job on the basis of the in-

mate’s abilities and interests, and accord-

ing to institutional needs. Inmates shall

not be required or allowed to perform

household or personal tasks for any per-

son

2. Each inmate shall have the oppor-

tunity to participate in basic educational

programs.

3. Each inmate shall have the oppor-

tunity to participate in a _ vocational

training program designed to teach a

marketable skill.

4. The defendants may establish rea-

sorable entrance requirements and ra-

tional objective criteria for selecting in-

mates to participate in particular pro-

grams. However, no inmate shall be de-

nied educational, vocational and work

opportunities except while in isolation

for disciplinary reasons or when the par-

82a

ticipation of an inmate in a particular

program presents a clear threat to insti-

tutional security.

5. Every inmate, prior to release,

shall be afforded the opportunity to par-

ticipate in some transitional program de-

signed to aid in his or her re-entry into

society.

6. Each institution shall employ a

qualified full-time recreation director

with at least bachelor’s level training, or

its equivalent, in recreation or physical

education. Adequate equipment and fa-

cilities shall be provided to offer recrea-

tional opportunities to every inmate.

Space shall be available for inmates to

engage in hobbies. Suitable vocational

programs shall be provided.

X. Physical Facilities

1. Defendants shall ensure that the

physical plant of each facility in the Ala-

bama penal system meets all of the mini-

mum standards of the United States

Public Health Service.

(a) Physical facilities in Draper Cor-

rectional Center shall meet mini-

mum standards by December 15,

1976. A report setting forth

83a

progress in the implementation of

this requirement shall be filed 60

days before that date.

(b) Physical facilities in G. K. Foun-

tain Correctional Center _ shall

meet minimum standards by De-

cember 15, 1976. A report setting

forth progress in the implementa-

tion of this requirement shall be

filed 60 days before that date.

Prison shall meet minimum stan-

dards by December 15, 1977. A

report setting forth progress in

the implementation of this re-

quirement shall be filed six

months before that date.

(d) Physical facilities in Kilby Correc-

tions Facility shall meet minimum

standards by December 15, 1977.

A report setting forth progress in

the implementation of this re-

quirement shall be filed six

months before that date.

2. The defendants shall _ establish

work-release, pre-release, and other com-

munity-based facilities to house inmates

identified as appropriate for participa-

tion in such programs.

84a

XI. Staff

1. Qualified staff sufficient to main-

tain institutional order and to administer

programs shall be employed by the de-

fendants, including a total custodial staff

at each institution of no less than

Draper 184

Kilby 171

Fountain 178

Holman 159

2. Defendants shall provide appropri-

ate and effective training programs for

all staff members employed within the

Alabama penal system.

3. Defendants shall immediately in-

stitute an affirmative hiring program

designed to reduce and having the effect

of reducing the racial and cultural dis-

parity between the staff and the inmate

population.

[336]

MEMBERSHIP OF THE HUMAN RIGHTS COMMITTEE

85a

APPENDIX B

FOR THE ALABAMA PRISON SYSTEM

1. Mr. M. R. Nachman, Jr.—Chairman-

—P.0. Box 668

Montgomery, Alabama 36101

Mr. Oscar W. Adams, Jr.

2121 Build ag

Birmingham, Alabama 35203

Dr. Mary Catherine Beasley

14 Park Wood

Tuscaloosa, Alabama 35401

Dr. Wiley R. Boyles

3243 Fernway Drive

Montgomery, Alabama 36111

Dr. Fred Campbell

1722 Pine Street |

Montgomery, Alabama 36106

Dr. John Murphy Chenault

1115 Somerville Road

Decatur, Alabama 35610

86a

7. Dr. Nace R. Cohen

750 Washington Avenue

Montgomery, Alabama 36104

Mr. Lee P. Dodd

Double Springs, Alabama 35553

9. Mr. William Fasin

10.

11.

13.

14.

1563 Oakland Street

Montgomery, Alabama 36108

Gen. E. M. Friend, Jr.

2030 1st Avenue, North

Birmingham, Alabama 35203

Mrs. Emily B. Gassenheimer

312 Scott Street

Montgomery, Alabama 36104

Dr. Lewis Jones

310 Bulls Street

Tuskegee, Alabama 36083

Dr. Moses W. Jones

244 Monroe Street

Montgomery, Alabama 36104

Dr. J. J. Kirschenfeld

2119 E. South Boulevard

Montgomery, Alabama 36111

15.

16.

17.

18.

19.

21.

87a

Mr. Atley A. Kitchings, Jr.

600 19th Street, North

Birmingham, Alabama 35203

Mr. John L. LeFlore

1504 Chataque Avenue

Mobile, Alabama 36603

Mr. James L. Lovvorn

443 Wright’s Mill Road

Auburn, Alabama 36830

Mr. John C. McCluney

3617 Southview Avenue

Montgomery, Alabama 36111

Mr. H. D. MclInish

P.O. Box 1665

Dothan, Alabama 36301

Mrs. Laurie W. Mandell

Route 4, Box 168

Montgomery, Alabama 36111

Col. Floyd T. Mann

P.O. Box 295

Lanett, Alabama 36863

Dr. Julius Michaelson

P.O. Box 910

Foley, Alabama 36535

[337] 23.

26.

30.

88a

Dr. Alberta Murphy

13 Hillcrest Drive

Tuscaloosa, Alabama 35401

Mr. James Murry

101-A Chambless Building

Tuskegee Institute, Alabama 36088

Mrs. Fannie Allen Neal

2662 Rutland Street

Montgomery, Alabama 36108

Mrs. Otis Owens

33 Parkside

Tuscaloosa, Alabama 35401

Dr. Julius Pryor, Jr.

1156 Oak Street

Montgomery, Alabama 36104

Dr. Janet Robbins

Route 2, Box 204-A

Ramer, Alabama 36069

Dr. Paul I. Robinson

3303 Royal Carriage Drive

Montgomery, Alabama 36111

Mr. Solomon S. Seay, Jr.

352 Dexter Avenue

Montgomery, Alabama 36104

31.

32.

36.

37.

89a

Mrs. Edward M. Selfe

3542 Lennox Road, South

Birmingham, Alabama 35213

Mrs. Mary Jo Smiley

4601 Lawnwood Drive

Montgomery, Alabama 36108

Mrs. Betty Stokes

801 Montgomery Road

Tuskegee Institute, Alabama 36088

Mr. Thomas W. Thagard, Jr.

600 Bell Building

Montgomery, Alabama 36104

Ms. Sue Thompson

2618 Eighth Street

Tuscaloosa, Alabama 35401

Mr. Barney Weeks

231 West Valley Avenue

Birmingham, Alabama 35209

Rev. Dan C. Whitsett

2122 Mona Lisa Drive

Montgomery, Alabama 36111

90a

38. Mrs. Roscoe A. Williams

621 Alabama Street

Montgomery, Alabama 36104

39. Rev. Robert W. Wingard

3151 Woodfern Drive

Montgomery, Alabama 36111

i aeenss —— a

9la

APPENDIX F

IN THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

[Filed MAR 5, 1976]

CIVIL ACTION NO. 3501-N

N.H. NEWMAN, AND OTHERS,

Plaintiffs,

STATE OF ALABAMA; et al.,

Defendants,

UNITED STATES OF AMERICA,

Amicus Curiae.

CIVIL ACTION NO. 74-57-N

JERRY LEE PUGH, for himself and all others similarly

situated,

Plaintiffs,

JUDSON C. LOCKE, JR., individually and in his

official capacity as Commissioner of the Alabama Board

of Corrections; et al.,

Defendants,

92a

WILCOX COUNTY COMMISSION, as the governing

body of the County of Wilcox, State of Alabama, and

all other counties similarly situated; et al., .

Intervening Ancillary

Plaintiffs,

MELBA TILL ALLEN, individually and as State

Treasurer, State of Alabama; et al.,

Ancillary Defendants,

IRA DE MENT, United States Attorney,

Amicus Curiae.

CIVIL ACTION NO. 74-203-N

WORLEY JAMES; et al.,

Plaintiffs,

GEORGE C. WALLACE, individually and in his official

capacity as Governor of Alabama; et al.,

Defendants,

WILCOX COUNTY COMMISSION, as the governing

body of the County of Wilcox, State of Alabama, and

all other counties similarly situated; et al., .

Intervening Ancillary

Plaintiffs,

93a

MELBA TILL ALLEN, individually and as State

Treasurer, State of Alabama; et al.,

Ancillary Defendants,

THE NATIONAL PRISON PROJECT OF THE AMERI-

CAN CIVIL LIBERTIES UNION FOUNDATION, INC.;

and IRA DE MENT, United States Attorney,

Amici Curiae.

MEMORANDUM OPINION

This cause is now submitted upon the motion for

rehearing and modification filed by defendants on

February 23, 1976. This motion was substituted by the

defendants for their motion for a new trial filed

January 23, 1976. This Court has previously entered an

order concerning Paragraph B of defendants’ motion,

which requests a rehearing in these cases. The order

previously entered required defendants to specify with

particularity the errors of law to which this part of

their motion refers. On March 1, 1976, defendants filed

their specification of errors of law.

Paragraph A of defendants’ motion submits ten

specific requests for modification of this Court’s order

of January 13, 1976, that will be discussed seriatim.

The first ground in support of defendants’ motion

seeks modification of Paragraph III §1 of the order of

this Court which presently requires the defendants to

“contract with the University of Alabama Department

of Correctional Psychology to aid in the implementa-

tion of [the classification plan to be filed with the

Court by April 15, 1976].” That portion of the order

is based in part on the testimony of Dr. Carl B.

Clements, staff member and former acting director of

the Department of Correctional Psychology, that the

94a

Department has the ability and resources to aid the

defendants with the plan. However, the defendants

should be afforded the opportunity to select the

assistance of any comparably qualified and_ willing

agency or experts. If defendants do find a comparably

qualified and willing agency or experts, defendants

should submit to the Court the mame of the agency and

data evidencing its ability. That part of Paragraph III

§1 of the order will be modified accordingly.

The second modification requested by the defendants

concerns Paragraph IV §3 of the order which requires

the hiring of “at least those mental health professionals

and support personnel as set forth in Minimum Mental

Health Standards for the Alabama Correctional System

(Center for Correctional Psychology, University of

Alabama, December, 1972).” It should be noted that

the study admitted in evidence in these cases, was

carried out under contract from the defendant Board of

Corrections. However, the evidence in these cases

established that the defendants have failed to imple-

ment even those mental health standards set forth four

years ago in the case of Newman v. Alabama, 349 F.

Supp. 278 (M.D. Ala. 1972), which was affirmed by the

Court of Appeals, 503 F.2d 1320 (5th Cir. 1974). The

defendant Board of Corrections proposed minimum

mental health personnel standards pursuant to an order

in that case. See Report of Defendants, January 4,

1973, Exhibit 9. Consequently, the order herein will be

modified to require the defendants to meet the

standards for hiring mental health personnel contained

in their own report to the Court filed in Newman v.

‘Alabama on January 4, 1973.

Third, defendants seek modification of Paragraph II

of the order, setting forth minimum standards for

95a

isolation and segregation. That paragraph will be

modified to reflect the distinct functions served by

isolation for punishment and by administrative segrega-

tion. Inmates who are duly confined in isolation

according to the standards set forth in Wolff v.

McDonnell, 418 U.S. 579 (1974), may face deprivations

which may not be imposed on inmates who are

administratively segregated. Courts have recognized,

however, that inmates in punitive isolation may “not be

deprived of basic necessities including light, heat,

ventilation, sanitation, clothing and a proper diet.”

Finney v. Arkansas Board of Corrections, 505 F.2d

194, 208 (8th Cir. 1974); see Berch v. Stahl, 373 F.

Supp. 412 (W.D.N.C. 1974). Consequently, Paragraph II

of the order will be modified to allow prison officials

the option of imposing additional sanctions against

inmates who are in punitive isolation. An inmate in

punitive isolation may be provided fewer than three

meals per day provided that the inmate’s total diet

while he is so confined, is not nutritionally inadequate.

Required plumbing facilities may be omitted from a

few punitive isolation cells for the confinement of

inmates in punitive isolation who consistently misuse

such facilities. However, those cells must contain at

least a toilet which can be flushed from the outside

and such cells must be closely supervised by cor-

rectional personnel. Reading matter other than legal

materials may be withheld for the period of punitive

isolation. Finally, this Court declines to decrease the

minimum cell space required by Paragraph II §1 as

requested by defendants in paragraph A(8) of their

motion. However, defendants may upon an appropriate

request be granted an extension of time in which to

bring existing isolation cells up to the minimum 60

square foot requirement.

96a

Fourth, defendants petition for modification of the

requirement in Paragraph II] §5 that “[a]ny prisoner

who is voluntarily segregated must be released im-

mediately upon request.” This requirement applies only

to those inmates who are segregated by their own

request, and not to inmates who are segregated by

responsible officials for punitive or administrative

reasons. The requirement in no way interferes with the

discretion of prison officials in imposing segregation.

Consequently, this request for modification will be

denied.

The fifth ground advanced by defendants in support

of their motion is a request for modification of the

standard contained in Paragraph VII §4 under which

“fe]ach inmate who requires a special diet for reasons

of... religion shall be provided a diet to meet his or

her individual needs.”” The Court does not intend for

that standard to be manipulated as a means of

obtaining special treatment or privileges. Further, the

Court recognizes that the obligation to provide a special

diet on religious grounds is due only to conscientious

adherents to a bona fide religion. That portion of the

order should be construed to allow the Board of

Corrections to establish a procedure for reviewing

requests for special diets on religious grounds. No

modification to allow the establishment of such

procedures is appropriate.

The sixth modification sought by defendants con-

cerns Paragraph IX §1 which provides that “[i] nmates

shall not be required or allowed to perform household

or personal tasks for any person.” There was repeated

testimony presented upon the trial of these cases that

prison officials, and even other inmates, used prisoners

to perform personal and household tasks. These

97a

personal services are performed without pay, and for no

apparent vocational, educational or therapeutic purpose.

Clearly, inmates may be required to perform household

tasks within the institution; and the vocational,

educational, and work programs established by the

defendants may include household labor under appro-

priate circumstances. Appropriate circumstances for the

requiring of inmates to perform household labor,

maintenance work and other personal services will

include the performance of such tasks at state owned

and . operated facilities and for state governmental

officials who may be physically disabled and need

personal services in order to perform their official

functions. That part of the Court ord i

modified accordingly. pedis

Seventh, defendants object to Paragraph VIII §1

which requires that the defendants supply “postage and

paper for up to five letters per week for each inmate.”

Under the conditions reflected by the evidence in these

cases, it is incumbent on the defendants to provide

inmates with some means to exercise their right to

access to the courts, and to provide them with

reasonable methods of communication with society

outside the institution.

It is clear that prisoners have a right an

the F irst and Sixth Amendments °° pgp goog

public officials, and lawyers in order to present

grievances and seek legal redress. Johnson v. Avery, 393

U.S. 483 (1969); Barlow v. Amiss, 477 F.2d 897 (5th

Cir. 1973); Frye v. Henderson, 474 F.2d 1263 (5th Cir.

1973). “All other rights are illusory without it being

entirely dependent for their existence on the whim or

caprice of the prison warden.” Adams v. Carlson, 488

F.2d 619 (7th Cir. 1973) quoting Sti

g Stiltner v. Rhay,

F.2d 314 (9th Cir. 1963). —

98a

The Alabama prison system does not provide inmates

with money or with any means of earning money with

which to buy postage. Consequently, the defendants

must provide some appropriate method for inmates to

exercise their rights of access.

Moreover, the Court found that the inadequate

visitation policies of the Board of Corrections unrea-

sonably interferes with the prisoners’ efforts to engage

in rehabilitation, and in fact those policies decrease

both social skills and the chances of successful

reintegration into society. Given the inaccessibility of

most of Alabama’s penal institutions, infrequent visiting

hours, and inadequate visiting facilities, there are few

ways for inmates, many of whom are indigent, to

communicate with friends and relatives outside the

institution. Therefore, the defendants will be required

to make available postage in reasonable amounts as one

method of alleviating the unconstitutional conditions

created in part by current visitation policies. Under

these conditions, the requirement in the Court order as

written will be modified so as to require defendants to

supply postage and paper for each inmate, who so

wishes, to write not less than two letters per week.

Eighth, defendants’ request that shampoo be omitted

from the list of personal hygiene items to be supplied

to inmates will be granted.

Finally, defendants seek modification of Paragraph

VIII §2 which presently requires that “[v]isitation

policies must permit an inmate to receive visitors on at

least a weekly basis.’’ Repeated testimony by experts in

these cases established that inmates suffer great

disorientation and stress during their initial entry into

the prison system, and that their adjustment to prison

life may be greatly affected at that time. Consequently,

99a

the Court will not modify that part of the order that

prohibits defendants from denying visitation privileges

to inmates at that critical period.

As to that part of defendants’ motion for rehearing

filed in these cases February 23, 1976, wherein

defendants “move the Court to grant a rehearing on the

gound that errors of law occurred before and during the

trial hereof prejudicial to the defendants” and upon

consideration of the specification of these “errors of

law” as filed by defendants March 1, 1976, it appears

that the motion for rehearing is absolutely without any

merit and is due to be denied.

An order will be entered accordingly.

** *

ORDER

Pursuant to the memorandum opinion of this Court

made and entered herein this date, it is the ORDER,

JUDGMENT and DECREE of this Court that:

1. Paragraph III §1 of Appendix A to this Court’s

order of January 13, 1976, be and is hereby modified

to read

By April 15, 1976, the defendants shall file with

the Court a plan for the classification of all

inmates incarcerated in the Alabama penal system.

The Board of Corrections shall contract with the

University of Alabama Department of Correctional

Psychology, or some other comparably qualified

agency or experts to be approved by the Court, to

aid in the implementation of that plan.

2. Paragraph IV §3 be and is hereby modified to

read

100a

The defendants shall hire at least those mental

health professionals and support personnel as set

forth in Exhibit 9 of the Board of Corrections

Report to the Court filed January 4, 1973, in

Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala.

1972).

3. Defendants’ motion that the minimum space

required for each isolation cell be reduced be and is

hereby denied. Further, Paragraph II of the order be

and is hereby modified to read

1. No more than one prisoner shall be confined to

a single cell, and each such cell shall be a

minimum of 40 square feet. Within six months,

the area of each single occupancy isolation cell

shall be no less than 60 square feet.

2. Prison officials may, at their discretion, impose

additional sanctions as further set forth below

against inmates who are duly confined in punitive

isolation according to the procedural requirements

of Wolff v. McDonnell, 418 U.S. 539 (1974).

3. Each cell shall be equipped with a toilet which

can be flushed from the inside; a sink with hot

and cold running water, except that inmates in

punitive isolation who consistently misuse plumb-

ing facilities may be confined while in isolation in

a cell equipped with no less than a toilet which

can be flushed from the outside if such cell is

closely supervised by correctional personnel; venti-

lation and lighting which meet minimum standards

of the United States Public Health Service; clean

linen; and a bed off the floor.

4. Each inmate’ confined in isolation shall be

(a) permitted to bathe at least every other day;

(b) provided three wholesome and nutritious

meals per day served with eating and drinking

10la

utensils, except that inmates in punitive isola-

tion may be provided two meals per day if the

total diet while in punitive isolation is nutrition-

ally adequate;

_as are required to be provided to th

inmate population; or

(d) provided reading and writing materials; and

allowed any personal legal or research materials,

except that reading matter other than legal

materials may be withheld from an inmate in

Punitive isolation for the period of such

confinement;

(e) allowed at least 30 minutes of outdoor

exercise per day; and

(f) afforded adequate medical and mental health

care, including examination by a physician and a

qualified mental health care professional at least

every third day. No inmate shall be deprived of

physical aids or prosthetic devices.

4. Defendants’ motion to modify Paragraph VII §4

of the order which requires that a special diet be

provided to inmates for reasons of health igi

be and is hereby denied. a

2 Paragraph IX §1 be and is hereby modified to

Each inmate shall be assigned a meaningful job

on the basis of the inmate’s abilities and interests

and according to institutional needs. Inmates shall

not be required or allowed to perform household

or personal tasks except within the institution; as

part of a legitimate vocational, educational | or

work | program; at state owned and operated

facilities; or in the assistance of state governmental

officials who may need such personal services to

perform their official functions.

102a

6. Paragraph VIII §1 be and is hereby modified to

read

Defendants shall not limit the number or length

of letters a prisoner may send or receive. Mail to

or from courts, attorneys or other public officials

shall be inspected only for contraband and only in

the presence of the prisoner to whom it is

addressed or by whom it is mailed. Inspection or

censorship of other mail must be in aé@cordance

with the standards set forth in Procunter v.

Martinez, 416 U.S. 396 (1973). The defendants

shall supply postage and paper for each inmate,

who so wishes, to write not less than two letters

per week.

7. Defendants’ motion to modify Paragraph VIII §2

of the order to deny full visitation privileges for one

month to inmates undergoing initial classification be

and is hereby denied.

8. Defendants’ motion to modify Paragraph II §5 of

the order which requires that an inmate who is

voluntarily segregated be released immediately upon

request be and is hereby denied.

9. Paragraph VI §1 be and is hereby modified to

read

Prisoners shall be suppled, without charge,

toothbrushes, toothpaste, shaving cream, razors

and razor blades, soap, and combs. Each prisoner

also shall be provided adequate clean clothing and

a storage locker with a lock.

It is the further ORDER, JUDGMENT and DECREE

of this Court that defendants’ motion for a rehearing

on the ground that errors of law occurred before and

during the trial hereof prejudicial to defendants be and

the same is hereby denied.

103a

Done, this the 5th day of March, 1976.

/s/ [illegible]

UNITED STATES DISTRICT

JUDGE

104a

APPENDIX G

[233]

IN THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

[Filed JAN 20 1975]

CIVIL ACTION NO. 74-57-N

JERRY LEE PUGH, for himself and all others similarly

situated,

Plaintiffs,

Vv.

L.B. SULLIVAN, individually and in his official

capacity as Commissioner of the Alabama Board of

Corrections; et al.,

Defendants.

ORDER

Defendants’ “Motion for Order Compelling Dis-

covery” filed January 17, 1975, wherein defendants ask

this Court to order the plaintiffs to answer certain

interrogatories propounded to them by defendants, is

ORDERED to be and is hereby granted.

It is further ORDERED that plaintiffs answer said

interrogatories within 10 days from this date.

It is further ORDERED that plaintiffs’ motion for

leave to amend by adding as a party defendant Warden

105a

H. Crouch of the G.K. Fountain Correctional Center be

and is hereby granted.

It is further ORDERED that plaintiffs’ motion for

leave to amend by dropping all claims for class damages

be and is hereby granted without prejudice to the right

of any individual member of the plaintiff class to

pursue independently his claim for dam for in-

dividual injuries. soi ety

‘It is further ORDERED that defendants’ motion for

trial by jury be and is denied for want of any issues

triable to a jury remaining in this lawsuit.

Done, this the 20th day of January, 1975.

/s/ Frank M. Johnson, Jr.

UNITED STATES DISTRICT

JUDGE

106a

APPENDIX H

[332]

IN THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

[Filed JUN 27 1975]

CIVIL ACTION NO. 74-57-N

JERRY LEE PUGH, for himself and all others similarly

ituated,

ne Plaintiffs,

Vv.

L.B. SULLIVAN, individually and in his official capacity

as Commissioner of the Alabama Board of Corrections;

et al.,

Defendants.

ORDER

Upon consideration of the matters presented to the

Court during the hearing conducted in this cause this

date, it is ORDERED:

1. That plaintiffs’ motion to sever plaintiffs’ class

action injunctive claims from the individual claims for

damages asserted by plaintiff Pugh be and the same 1s

hereby granted.

2. That defendants’ motion filed June 6, 1975,

asking this Court to dismiss the claims of the plaintiff

107a

class for declaratory and injunctive relief be and the

same is hereby denied.

3. That plaintiffs’ motion seeking leave to amend

filed June 13, 1975, be and the same is hereby granted.

4. That defendants file responsive pleadings to

plaintiffs’ complaint as amended June 13, 1975, within

10 days from this date.

5. That with the exception of defendants’ response

to plaintiffs’ amended complaint, all pleadings in this

case be and they are hereby closed.

6. That the attorneys for the parties prepare and

present to this Court not later than July 10, 1975, a

pretrial order outlining the issues for trial in this case.

7. That this cause be and the same is hereby

consolidated for trial with Worley James, et al. v.

George C. Wallace, et al., Civil Action No. 74-203-N.

[333] 8. That the attorneys for the parties in this

cause be and they are hereby bound by the cutoff dates

and the trial date set forth in the order of this Court

made and entered in Worley James, et al. v. George C.

Wallace, et al., on June 24, 1975.

Done, this the 27th day of June, 1975.

FRANK M. JOHNSON, JR.

UNITED STATES DISTRICT

JUDGE

108a

APPENDIX I

[431]

IN THE

UNITED STATES DISTRICT COURTS FOR THE

SOUTHERN AND MIDDLE DISTRICTS

OF ALABAMA

[Filed AUG 29 1975]

CIVIL ACTION NO. 5620-69-H

ROBERT G. McCRAY,

Petitioner,

L.B. SULLIVAN,

Respondent.

CIVIL ACTION NO. 6091-70-H

ROBERT G. McCRAY,

Petitioner,

L.B. SULLIVAN,

Respondent.

109a

CIVIL ACTION NO. 7094-72-H

JERRY WHITE and ALVIN CLAYBRONE,

Petitioners,

Vv.

COMMISSIONER OF ALABAMA

BOARD OF CORRECTIONS,

Respondent.

CIVIL ACTION NO. 74-57-N

JERRY LEE PUGH, for himself and all others similarly

situated,

Plaintiffs,

Vv.

L.B. SULLIVAN, individually and in his official

capacity as Commissioner of the Alabama Board of

Corrections; et al.,

Defendants,

IRA DE MENT, United States Attorney,

Amicus Curiae.

110a

CIVIL ACTION NO. 74-203-N

WORLEY JAMES, et al.,

Plaintiffs,

Vv.

GEORGE C. WALLACE, individually and in his official

capacity as Governor of Alabama; et al.,

Defendants,

THE NATIONAL PRISON PROJECT OF THE AMERI- *

CAN CIVIL LIBERTIES UNION FOUNDATION, INC.,

and IRA DE MENT, United States Attorney,

Amici Curiae.

ORDER AND INJUNCTION

The plaintiffs in the above-captioned cases who are

prisoners incarcerated by the State of Alabama in its

penal system suing for themselves and for others

similarly situated as prisoners in the Alabama prison

system charge the defendant state officials who hold

them in custody with massive and aggravated viola-

tions of the Eighth Amendment to the Constitution of

the United States. The G.K. Fountain Correctional

Institution, formerly known as the Atmore Prison

Farm, and Holman Prison are located within the

geographical limits of the Southern District of Alabama.

The Mount Meigs Medical and Diagnostic Center and

the Draper Prison are geographically situated in the

Middle District of Alabama.

llla

Evidence has been taken in each of the cases and the

cases are now submitted.'! Upon these submissions it

clearly appears that the plaintiffs’ Eighth Amendment

rights have been and are being violated to the point

that their continued incarceration under the conditions

existing in the four prison facilities herein identified

constitutes cruel and unusual punishment. The plaintiffs

in all cases seek interim emergency relief by asking that

the defendants be enjoined from accepting any new

prisoners into the Alabama correction system until the

population of each prison in the system is no greater

than its stipulated designed capacity. The serious

overcrowding in these facilities and the serious lack of

custodial officers results in the almost complete

inability on the part of the Alabama prison officials to

control violence within these prisons; this violence

includes, but is not limited to, stabbings and sexual

assaults by inmates upon other inmates, on a regular

and continued basis. Such conditions clearly dictate

that the plaintiffs are entitled to interim emergency

relief. Failure to grant this interim emergency relief

designed to immediately commence a reduction in the

prison facilities concerned will continue to subject the

plaintiffs and the members of plaintiffs’ class to these

serious constitutional deprivations. This interim emer-

gency relief is being granted jointly by the two judges

having these cases under submis.ion. The Middle

District cases and the Southern District cases will

otherwise be disposed of separately.

‘Judge Hand in the Souther District cases has filed his

findings and conclusions finding Eighth Amendment violations.

In the Middle District Cases the defendants acknowledged, at the

conclusion of the trial in open court, serious Eighth Amendment

violations.

112a

[433] Accordingly, it is the ORDER, JUDGMENT

and DECREE of these Courts that L.B. Sullivan,

individually and in his official capacity as Commissioner

of the Alabama Board of Corrections; George C.

Wallace, individually and in his official capacity as

Governor of Alabama; The Alabama Board of Cor-

rections; Yetta Samford, Jr., individually and as a

member of the Alabama Board of Corrections; J.E.

Vickers, individually and as a member of the Alabama

Board of Corrections; Thomas F. Staton, individually

and as a member of the Alabama Board of Corrections;

Max V. McLaughlin, individually and as a member of

the Alabama Board of Corrections; Thomas E. Brad-

ford, Sr., individually and as a member of the Alabama

Board of Corrections; the Wardens of G.K. Fountain

Correctional Center, the Medical and Diagnostic Center,

the Draper Prison, and the Holman Prison; their agents,

assigns, successors in office, employees, and any others

acting in concert with them, be and each is hereby

ENJOINED from accepting or permitting the accept-

ance of any new prisoners, except escapees who have

been apprehended and parole violators who have had

their paroles revoked, into the Alabama penal system

until the population of Draper Prison, G.K. Fountain

Correctional Center, Holman Prison and the Mount

Meigs Medical and Diagnostic Center is no greater than

the designed capacity for said facilities.

It is further ORDERED that the United States

Marshals for the Middle and Southern Districts of

Alabama forthwith serve each defendant, including the

Wardens of G.K. Fountain Correctional Center, Holman

1l3a

and Draper Prisons and the Mo

Diagnostic Center, ye shorelines

with a copy of this injunction.

Done, this the 29th day of August, 1975.

/s/ Frank M. Johnson, Jr.

UNITED STATES DISTRICT JUDGE

/s/ W. B. Hand

UNITED STATES DISTRICT JUDGE

ll4a

APPENDIX. J

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT G. McCRAY,

Petitioner,

versus C.A. No. 5620-69-H

L.B. SULLIVAN,

Respondent.

ROBERT G. McCRAY,

Petitioner,

versus C.A. No. 6091-70-H

L.B. SULLIVAN,

Respondent.

JERRY WHITE and ALVIN CLAYBRONE,

Petitioners,

versus C.A. No. 7094-72-H

COMMISSIONER OF ALABAMA

BOARD OF CORRECTIONS,

Respondent.

ORDER

In its Order of August 7, 1975, this Court disposed

of the issues raised by Civil Action 7094-72-H; allowed

amendment of Civil Actions 5620-69-H and 6091-70-H

to permit them to proceed as class actions, and

continued same for further study. On August 29, 1975

a joint Order in this and other cases was issued with

1l5a

Judge Frank M. Johnson, Jr. of the Middle District,

enjoining prison authorities from accepting any more

prisoners in any of the State institutions until such time

as those institutions had a prison population no greater

than the design capacity of said respective facilities,'

which injunction is still in force and effect. By further

joint Order dated October 9, 1975, the Courts allowed

a clarification of the aforesaid injunction permitting

administrative transfer of prisoners within the prison

system without the necessity of having to transport the

body through overburdened institutions.

Having therefore reserved judgment on the remaining

issues in this case pending possible action by the 1975

Legislature, which was then in session to fashion some

relief, and the Legislature having adjourned without

addressing itself fully to the question, and the Courts

having taken additional testimony on the problem,

determines that further order is now appropriate.

As heretofore set forth in the August 7, 1975 Order,

G.K. Fountain Correctional Center, Draper Correctional

Center, Holman Unit and Medical and Diagnostic Center

are grossly overpopulated and grossly understaffed,

proximately resulting in conditions that give rise to

sub-human treatment of the inmates incarcerated

therein, a condition which this Court found to be

"Robert G. McCray v. L.B. Sullivan, Civil Action 5620-69-H;

Robert G. McCray v. L.B. Sullivan, Civil Action 6091-70-H; Jerry

White and Alvin Claybrone v. Commissioner of Alabama Board

of Corrections, Civil Action 7094-72-H; Jerry Lee Pugh v. L.B.

Sullivan, et al, Ira De Ment, U.S. Attorney, Amicus Curiae, Civil

Action 74-57-N; and Worley James, et al. v. George C. Wallace,

et al, The National Prison Project of the American Civil Liberties

Union Foundation, Inc. and Ira De Ment, U.S. Attorney, Amicus

Curiae, Civil Action 74-203-N.

1l6a

violative of the Constitution of the United States. The

only relief that appears on the horizon is the passage of

a bond issue that would permit certain corrective

measures to be taken in the physical plants of the

various institutions, and the reduction in population

resulting from the injunction of the Courts.

It has been urged upon this Court, and others, that

definitive order should issue specifying what would

meet Constitutional muster in this type case. Such

advocacy requires of this Court that it give a

declaratory judgment or an advisory opinion on what is

meant by cruel and inhuman punishment as prohibited

by the Constitution. Neither this nor any other Court

has infinite wisdom or a crystal ball that would permit

it to one time determine what other judges might agree

is required by the circumstances presented to them by

the facts in these cases and for this reason this Court

will not attempt to undertake such an effort.

It is and should be the province and burden of the

State and those departments responsible, to undertake

corrective action to provide the minimum requirements

of a system that does not impose cruel and inhuman

punishment upon inmates incarcerated by it. This Court

is of the opinion that it does not possess and should

not assume authority to direct the exact means or

method to be pursued by the State in discharging such

duties. Suffice it to say that if the State fails to

properly discharge such duties of providing and

operating its prison facilities in a manner which no

longer infringes upon the Constitutional rights of the

inmates it may become necessary to enjoin further use

of such facilities for the incarceration of prisoners.

The Board of Corrections and Commissioner has

previously indicated to this Court and they are unable,

INRA

117a

under Present funding, to undertake any meaningful

corrective measures. Bond funds have now been

authorized and it is hoped that the Legislature, which

convenes in May, will provide additional funds and

means sufficient to enable the State to discharge its

duties with respect to its prison facilities. In light of

this It is therefore ORDERED that the defendants

provide this Court within 90 days a written report of

the present condition of the prison system as it affects

the institutions specified herein; the contemplated use

of the bond funds authorized by the people of the

State of Alabama; the effect of such use on present

conditions in the various institutions; time schedule of

such implementation; and the recommendations it

proposes to make to the next session of the Legi

for additional or further relief. sani

It is further ORDERED that the defendants make a

supplemental report in writing within 180 days

reflecting the then conditions of the prisons and the

success, if any, to be derived from legislative action

Unless . such reports indicate probable success in

alleviating the present conditions within the foreseeable

future and unless the Legislature shows a willingness tu

address itself forcefully to the problem with legislation

that speaks affirmatively to the solution of the

overcrowding, understaffing and administration of the

present penal system, then this Court will again review

the matter with the view towards other appropriate

118a

action. The Court retains jurisdiction pending further

orders.

DONE this 10th day of February, 1976.

/s/ W.B. HAND

UNITED STATES DISTRICT

JUDGE

U.S. DIST. COURT

SOU. DIST. OF ALA.

FILED AND ENTERED THIS THE

10TH DAY OF FEBRUARY, 1976

MINUTE ENTRY NO. 40007

WILLIAM J. O’CONNOR, CLERK

BY:

/s/ J. BETANCOURT

Deputy Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.