Petition — Rhodes v. Chapman

rIinLanu

SEP2 = 1980

Case No. 8 0 - 3 3 2 MICHAEL RODAK, JR., ©

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

JAMES A. RHODES, et al.,

Petitioners,

vs.

KELLY CHAPMAN, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. BROWN

Attorney General

ALLEN P. ADLER

COUNSEL OF RECORD

LEO J. CONWAY

Assistant Attorneys General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43215

(614) 466-5414

ATTORNEYS FOR PETITIONERS

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

QUESTION PRESENTED

WHETHER THE DOUBLE CELLING OF PRISON

INMATES CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT WHERE THE RECORD INDICATES

THAT THE PRACTICE DOES NOT DEPRIVE IN-

MATES OF MINIMUM CONSTITUTIONAL GUAR-

ANTEES TO ADEQUATE FOOD, CLOTHING, SHEL-

TER, SANITATION, MEDICAL CARE AND PER-

SONAL SAFETY.

PARTIES

The petitioners in this action are James A. Rhodes,

Governor of the State of Ohio, George F. Denton,

Director of the Department of Rehabilitation and Cor-

rection, and Ronald G. Marshall, Superiatendent of the

Southern Ohio Correctional Facility, as the successor

to Arnold R. Jago, a named defendant in the courts

below. The respondents are Kelly Chapman and Richard

Jaworski, the named plaintiffs in the courts below for

a class of all inmates at the Southern Ohio Correctional

Facility.

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........-- ee eeeeeeees i

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FOE SRT TA cn disap socccctpassveseces 1

Po ine ode a due Gos 60 8 Gb wees oe 6 08 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED... .. 2c scccccccccces 2

STATEMENT OF THE CASE............ceeeeeees 4

ARGUMENT IN SUPPORT OF GRANTING

Ne a sa beware eke hee aoe es 8

CERTIFICATE OF SERVICE. .........-+++0+e0e: 15

iii

TABLE OF AUTHORITIES

Cases

Bell v. Wolfish,

ae LL, eR Ee ecce 6, 8,9,11

Burks v. Walsh, 461 F. Supp. 454 (W.D; Mo. 1978),

aff'd sub nom., Burks v. Teasdale, 603 F. 2d 59

ee Rg bos Ve Shwe kis eices Bake. ts 11

Chapman v. Rhodes,

434 F. Supp. 1007 (S.D. Ohio 1977) ............. 11

Crowe v. Leeke,

540 F. 2d 740 (4th Cir. 1976)................... 11

Detainees of Brooklyn H. of Det. for Men v.

Malcolm, 520 F. 2d 392 (2nd Cir. SN 5% 453 ews 11

Hite v. Leeke,

564 F. 2d 670 (4th Cir. MW Dols ks Sele oe Sete) 11,12

Hutto v. Finney,

UN oi a 12

Kennedy v. Mendoza - Martinez,

er Ss es ty 9

Newman v. Alabama,

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

cert. denied, 438 U.S. 915 (1978).............. 9,11

Wolfish v. Levi,

573 F. 2d 118 (2nd Cir. BP POS 9,11

iv

1

DECISIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is unreported. (A-2).The deci-

sion of the United States District Court for the South-

ern District of Ohio, Western Division is reported as

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

1977). (A - 4).

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered June 6, 1980. Juris-

diction is conferred by 28 U.S. C. Section 1254 (1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

This case involves Amendment VIII to the Consti-

tution of the United States prohibiting cruel and un-

usual punishment:

Excessive bail shall not be required,

nor excessive fines imposed, nor

cruel and unusual punishments inflict-

ed.

made applicable to the states by Section 1 and 5 of

Amendment XIV to the Constitution of the United

States:

SECTION 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof,

are citizens of the United States and of

the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws.

3

SECTION 5. The Congress shall

have power to enforce, by appropriate

legislation, the provisions of this article.

and enforced by Title 42, Section 1983, United States

Code:

Every person who, under color of

any statute, ordinance, regulation, cus-

tom, or usage, of any State ot Terri-

tory, subjects, or causes to be sub-

jected, 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.

4

STATEMENT OF THE CASE

This case was initiated in the United States District

Court for the Southern District of Ohio, Western Division

on July 10, 1975 by the filing of a complaint pursuant to

42 U.S.C. Section 1983 and 28 U.S.C. Section 1343 (3)

arising out of conditions at Ohio’s maximum security pri-

son, the Southern Ohio Correctional Facility (SOCF).

The complaint alleged that numerous facets of institu-

tional life, connected with the practice of double celling

inmates, amounted to cruel and unusual punishment

prohibited by the Eighth Amendment of the United

States Constitution. Specifically, the complaint alleged:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

violence and terror to an impermissible degree

resulted from the practice of placing two in-

mates in the same cell;

the number of guards and employees provid-

ing services to the inmate population is inade-

quate to serve the population, and the shortage

of personne! has fostered violence and a law-

less atmosphere;

the inmates are not properly fed because food

services are overtaxed;

Overcrowding has limited access to the courts;

heating and ventilation systems are not ade-

quate;

medical services are overtaxed; and

inmate job opportunities and access to educa-

tional programs have been denied, thereby

affecting the rehabilitation process. (A-8-A-9).

5

On April 1, 1976, the case was allowed to pro-

ceed as a class action. Thereafter, by order of March

23, 1977, the district court set the case for trial on

respondents’ second amended complaint on the sole

issue of whether overcrowding at SOCF was unconsti-

tutional.

The trial began on May 23, 1977 and concluded on

May 27, 1977. On June 29, 1977, the district court is-

sued its opinion declaring that double celling at SOCF

was unconstitutional. (A - 4). The district court found

that “on balance” the practice of placing two men in

cells measuring variously 63 and 68 square feet was

improper.

At the time of the trial, SOCF’s population was ap-

proximately 2300 inmates and the institution contained

1620 cells. To solve that problem, approximately 1400

inmates were double celled with differentiation accord-

ing to classification as to how much time was permitted

outside the cells. Those inmates classified general popula-

tion who were double celled were required to be in their

cells between 9:30 p.m. and 6:30 a.m. (A-15-A-16). Idle

classifications were permitted outside their cells between

two and six hours per week. Reception inmates, approxi-

mately a two week process, were treated similiarly to the

idle classification (A - 18).

The district court found SOCF to be a modern first

rate institution, built in 1973 and possessing physical

facilities able to accomodate the increased population.

Food services, ventilation, lighting, plumbing, sanita-

tion, law library and classroom facilities, medical services,

visiting privileges and guard to inmate ratio were all

adequate. The issue of clothing was not raised. The dis-

trict court did find that there had been a watering down

of jobs to make more jobs available, that some inmates

had had educational opportunities delayed, though none

had been denied an education, and that the number of

psychologists and social workers had not increased with

6

the increase in population. Any inadequacy in dental

services was not due to double celling. More importantly,

the alleged increase in violence, described by respon-

dents as a geometric increase due to double celling, was

found to be non-existent. Any increase in violent in-

cidents was due to increase in population and not double

celling. (A-9, A-12, A-20 thru A-26, A-29, A-34).

Pursuant to the above findings, petitioners were

directed to formulate a plan to eliminate double celling

at SOCF. A petition for leave to file an interlocutory

appeal was granted by the district court and denied by

the Sixth Circuit Court of Appeals. A motion to stay

execution of judgment was denied by the district court

on September 20, 1977.

On February 16, 1978, the case was assigned for an

evidentiary hearing on the plans proposed by defendants,

plaintiffs’ objections thereto, and plaintiffs’ request

for an incremental reduction order. The case progressed

to hearing on March 7, 1978, at which time defendants

orally, and in open court, asked for a reconsideration

of the court’s earlier conclusions of law.

By a memorandum of March 21, 1978, followed by

the judgment entered on April 7, 1978, the district court

adopted its prior findings of fact and ordered the de-

fendants to reduce the population at SOCF from the

assigned population of March 21, 1978 by twenty - five

persons every thirty days until single celling was accom-

plished. (A - 42).

A notice of appeal was filed on May 1, 1978. On

July 20, 1978, a motion for stay of execution of judg-

ment and expedited hearing was denied by the appellate

court. Following this Court’s decision in Bell v. Wolfish,

441 U.S. 520 (1979), the district court on August 14,

1979 denied petitioner’s motion for relief from judgment

and stay of execution of judgment. Thereafter, on Nov-

ember 8, 1979, the appellate court, by 2 - 1 vote, denied

a motion for advancement of hearing, summary reversal,

7

and stay of execution. Following briefing and oral argu-

ment on June 2, 1980, the appellate court, on June 6,

1980, issued its decision affirming the district court.

(A - 2). This petition has followed.

ARGUMENT IN SUPPORT OF GRANTING

CERTIORARI

A. Conflict With Decisions Of This Court.

The present case involves an important issue of con-

stitutional law not specificially and previously answered

by this Court - whether the double celling of convicted

maximum security inmates constitutes cruel and unusual

punishment where such practice does not deprive such

inmates of the basic necessities of life. In resolving that

double celling at SOCF is cruel and unusual punishment,

the district court has held that such practice is per se

unconstitutional, This is contrary to the holding of this

Court in Bell v. Wolfish, 441 U.S. 520 (1979), where

Mr, Justice Rehnquist, speaking for the majority, stated

at 542:

We disagree with both the District

Court and the Court of Appeals that

there is some sort of “one man, one

cell” principle lurking in the due

process clause of the Fifth Amend-

ment.

To be sure, this Court’s decision in Bell related to

the status of pre-trial detainees. It is incongruous how-

ever that conditions which this Court did not find to be

“punishment” for presumably innocent defendants

blossoms into eruel and unusual punishment where

convicted maximum security prisoners are involved.

Petitioners interpret this Court’s statement in Bell

that confining a given number of people in a given

amount of space in such a manner as to cause them to

endure genuine privations and hardships over an extended

period of time might raise serious due process questions

to mean that an affirmative showing of deprivation of

constitutionality mandated rights must be made. No such

9

finding was made in this case. While concededly the dis-

trict court found some limitations occasioned by an in-

crease in population:

*** an institution’s obligation under

the eighth amendment is at an end if

it furnishes sentenced prisoners with

adequate food, clothing, shelter, sani-

tation, medical care and _ personal

safety. Wolfish v. Levi, 573 F 2d 118,

125 (2d Cir. 1978).

See also: Newman v. Alabama, 559 F. 2d 283, 291 (5th

Cir. 1977), cert. denied, 438 U.S. 915 (1978).

Citing Kennedy v. Mendoza - Martinez, 372 U.S.

144, 168-169 (1963), this Court in Bell stated the

criteria necessary to establish that a practice is punish-

ment:

Whether the sanction involves an af-

firmative disability or restraint, whether

it has historically been regarded as a

punishment, whether it comes into

play only on a finding... of scienter,

whether its operation will promote

the traditional aims of punishment --

retribution and deterence, whether the

behavior to which it applies is aiready

a crime, whether an alternative purpose

to which it may raticnally be con-

nected is assignable for it, and whether

it appears excessive in relation to the

alternative purpose assigned are all

relevant to the inquiry, and may often

point in differing directions.

10

None of these criteria are present in the instant case.

Double bunking of prison inmates is established both

historically and in other prison systems and the practice

has its analogies in the military, schools, colleges, and in

the home. Moreover, the practice of double celling at

SOCF was instituted because of an increase in the num-

ber of people sentenced to prison and an increase in the

number requiring confinement in a maximum security

setting. No inmate at SOCF was double celled as further

punishment for his crime or as punishment for violation

of an institutional rule. No expressed intent to punish

was alleged by the respondents, nor was it alleged that

the decision to double cell was arbitrary or purposeless.

Ohio prison administrators were simply charged with the

custody of more than 1620 maximum security prisoners

and had no other adequate facilities in which to house

them. That such a practice may be less than ideal in no

way converts such practice into cruel and unusual punish-

ment.

The respondents, of course, alleged a “totality of

evils” emanating from the practice of double celling.

The district court rejected such a broad based attack.

SOCF is a modern prison, opened in 1973; a building

having more than twenty acres under roof containing

a 25,000 volumn library. The institution also contains

a modern school, two chapels, two dining halls, two

large gynasiums, a large well equipped industrial area,

a large recreation yard, an outside visiting area with a

children’s playground, and well equipped medical facil-

ities. The institution is light and airy; the food is good;

the ventilation system, plumbing and lighting are com-

pletely adequate. The guard staff is adequate. More

importantly, while an increase in tension may huve re-

sulted from the practice of double celling, it has not been

manifested by a per capita increase in violence, and any

-

11

violence was found to be well within normal limits for

such a prison. (A - 33). SOCF is simply not the unsani-

tary dungeon frequently pictured in prison litigation.

In reaching its decision, the district court focused

on current standards promulgated by professional organ-

izations respecting the desired size of prison cells and

institutions. (A - 36). This Court in Bell, however, held

that constitutional rights are not coextensive with or

determined by such constantly changing, increasing and

somewhat utopian standards. Bell, supra, at 543, n. 27.

Prison administrators are limited by the reality of budget-

ary contraints and already existing physical facilities.

Bell simply indicates that the Constitution forbids the

deprivation of the basic necessities of life. While the

district court found a watering down of jobs, a delay in

education and less than desirable access to psychologists

and social workers, such “rights” are not of the dimen-

sion basic to sustain life. In reaching its decision, the

appellate court misapplied Bell and failed to heed the

admonition that prison administration is best left to

prison administrators. Certiorari should be granted on

this basis alone.

B. Conflicts With Other Circuits.

The decisions of the courts below are in direct con-

flict with all other circuits which have addressed the

issue. At least four other circuits have found double

celling of convicted prison inmates to be constitutionally

permissible. Newman v. Alabama, supra; Wolfish v. Levi,

supra; Detainees of Brooklyn H. of Det. for Men v.

Malcolm, 520 F. 2d 392 (2nd Cir. 1975); Crowe v. Leeke,

540 F 2d 740 (4th Cir. 1976); Hite v. Leeke, 564 F. 2d

670 (4th Cir. 1977); Burks v. Walsh, 461 F. Supp. 454

(W.D. Mo. 1978), aff'd sub nom., Burks v. Teasdale,

12

603 F. 2d 59 (8th Cir. 1979). The practice itself is not so

barbarous as to shock the conscience of civilized society.

Hutto v. Finney, 437 U.S. 678 (1978).

In all of the above decisions, the courts have taken

the position, advanced by petitioners, that the right

to relief turns not on the practice of double celling it-

self but whether such practice is part of a larger problem

of unsanitary conditions, violence, or lack of food,

clothing, shelter and medical care that are the basic

necessities of life. Contrary to the decision of the dis-

trict court, full employment, prompt education, and

complete social service programs have not been found

to be among such “rights.”

The correct test has been stated in Hite v. Leeke, supra,

at 574-575:

So far as convicted prisoners are

concerned, we have recently held spec-

ifically that the assignment of three

prison inmates to a cell about the size

of those with which we are concerned

did not amount to “cruel and unusual

punishment.” Crowe v. Leeke (4th Cir,

1976), 540 F. 2d 740. The Court

in that case emphasized that there

was no contention there, just as there

is not here, that the prisoners had been

“subjected to mental abuse or corpor-

al punishment; * * * deprived of the

basic implements of personal hy-

giene; * * * [or] that his cell failed

to meet reasonable sanitary standards.”

The petitioner’s complaint - similar

to that here - was simply that the

assignment of three prisoners, confined

13

in maximum security, to a cell was

per se unconstitutional. Finding that

there was no indication “that the over-

crowding has resulted from an ‘arbi-

trary or capricious’ exercise of judg-

ment by prison officals,” the number

of inmates, who may be safely as-

signed to a cell is a matter resting

within the sound discretion of the

prison administration, and the claim

of cruel and unusual punishment was

dismissed. Similarly in this case, it is

clear that the defendants have not

acted arbitrarily or capriciously in

their assignments of inmates nor have

they, in their dual assignments, been

“the cause of deplorable or inhumane

conditions.”

As the district court’s decision contravenes this test,

certiorari should issue to resolve such question.

C. Importance Of The Issue.

In the last decade, prison litigation has flourished

with a variety of conflicting decisions as to what is nec-

essary to provide prisoners with minimum constitutional

standards. In an era of increasing numbers of persons

being committed to prison systems with limited re-

sources, the area of greatest importance is the ability

of such systems to be able to house such numbers. A

clear statement from this Court is necessary to define

the parameter of when or if prison officials may double

cell in order to meet their burden.

In a real sense, the present case provides the proper

vehicle for resolution of this issue. The State of Ohio

has nine prisons housing 13,300 inmates in facilities

14

originally designed for 11,400. The only riaximum

security institution is SOCF. In addition to the popula-

tion ceiling placed on SOCF, two other Ohio prisons

are subject to federal court ordered ceilings. The result

reached has had a wide ranging impact resulting in chaos

for Ohio’s system of classifying prisoners, a system or-

iginally found excellent by the district court. (A - 15).

In addition, the case foreshadows the national dilemma

of prison administrators faced with federal court or-

dered limitations on the number of prisoners the penal

System may accept and their duties to accept prisoners

committed by state courts. As this ruling effects a mod-

ern insititution such as SOCF, no other case will better

offer an opportunity to define the issue. Certiorari should

thus be granted to decide this issue of national impor-

tance,

Respectfully submitted,

WILLIAM J. BROWN

Attorney General

ALLEN P. ADLER

COUNSEL OF RECORD

LEO J. CONWAY

Assistant Attorneys General

State Office Tower, 26th

Floor

30 East Broad Street

Columbus, Ohio 43215

ATTORNEYS FOR

PETITIONERS

15

CERTIFICATE OF SERVICE

I hereby certify that the requisite number of copies

of the foregoing Petition For Writ Of Certiorari have

been served on respondents, Kelly Chapman, # 122 -

531, P.O. Box 45699, Lucasville, Ohio 45699 and Rich-

ard Jaworski, # 734304, River Junction Correctional

Institution, P.O. box 37, Chattahoochee, Florida, 32324

hy forwarding such copies through the office of their

counsel, Jean P. Kamp, American Civil Liberites Union,

Suite 204, 203 East Broad Street, Columbus, Ohio,

43215, Christopher D. Stanley, 611 Rockefeller Build-

ing, Cleveland, Ohio, 44113, and Louis A. Jacobs, Ohio

State University, College of Law, 1659 North High

Street, Columbus, Ohio, 43210, by United States mail,

postpaid, this day of , 1980. I further

certify that all parties required to be served have been

so served.

ALLEN P. ADLER

Assistant Attorney General

A-1

APPENDIX

Opinion, June 6, 1980, USCA/6th Circuit,

ee en

Findings of Fact and Conclusions of Law,

Chapman v. Rhodes, 434 F. Supp. 1007,

NE as bei ek kG Ok KR ads cee

Memo on relief ordered, Chapman v. Rhodes,

I a Sik. a ee

Judgment, Chapman v. Rhodes,

I a a Na

A-2

FILED

NO. 78 - 3365 June 6, 1980

John P. Hehman, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KELLY CHAPMAN, et al.

Plaintiffs - Appellees

v.

JAMES A. RHODES, et al.

Defendants - Appellants

ORDER

BEFORE: LIVELY and MARTIN, Circuit Judges; PECK,

Senior Circuit Judge.

This is an appeal from a judgment of the dis-

trict court finding certain conditions at a state prison to

violate the Eighth Amendment prohibition against cruel

and unusual punishment. See Chapman v. Rhodes, 434

F. Supp. 1007 (S.D. Ohio 1977). On appeal the State

argues that the district court failed to render its decision

on the basis of the totality of conditions at the prison

and that instead the district court held “double celling”’

to be unconstitutional per se. The district court listed

in its opinion a number of considerations upon. which

it based its finding that double celling at the particular

prison in question is unconstitutional. We do not read

the opinion as holding that double celling is unconsti-

tutional under all circumstances. In response to a motion

for relief from judgment which the State filed primarily

in reliance on the decision of the Supreme Court of the

United States in Bell v. Wolfish, 441 U.S. 520 (1979),

“| Cal

2v03

A-3

which appeared after the initial findings were made by

the district court in the present case, the district court

found no conflict with the decision of the Supreme

Court and included a quotation from Bell which pointed

out the differences between the prison at Lucasville,

Ohio and the facility under scrutiny in Bell v. Wolfish.

Upon consideration of the record on appeal together

with the briefs and oral arguments of counsel the court

concludes that the findings of fact of the district court

are not clearly erroneous, that its conclusions of law are

permissible from the findings of fact and that the re-

medial provisions are a reasonable response to the viola-

tions which were found.

Accordingly, the judgment of the district court is

affirmed,

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

FILED

June 29, 1977

Kelly CHAPMAN, # 122531, Lucasville,

Ohio, and Richard Jaworski, # 140 - 021,

Lucasville, Ohio, Plaintiffs,

A-4

Vv.

James A. RHODES, Governor, George F. Denton,

Director of Rehabilitation and Corrections,

and A. R. Jago, Warden,

SOCF, Lucasville, Defendants.

No. C -1- 75 - 251. | Cr

, ee a ¥y 3

United States District Court,

S.D. Ohio, W.D. 4 w)

Prisoners at state prison brought civil rights suit

challenging constitutionality of “double celling’’ whereby

two prisoners were housed in one cell. The District

Court, Hogan, Chief Judge, held that: (1) practice of

placing two prisoners in one cell at state prison was un-

constitutional where prisoners were long term, “double

celling” had resulted in prison exceeding its designed

capacity by some 38%, cells were designed for one

person and had square footage of approximately 63 square

feet, double celled prisoners spent most of their time in

cell with cell mate, and double celling was not a tempor-

ary measure but represented a trend which had continued

for four years; but (2) only remedy immediately avail-

able was for court to declare double celling federally

unconstitutional and order state to proceed with reason-

able dispatch to formulate, propose and carry out some

plan which would terminate double celling.

Ordered accordingly.

A-5

1. Witnesses 18

In civil rights suit challenging constitutionality of

prison conditions, only seven of 35 requested writs

of habeas corpus ad testificandum were granted at govern-

ment expense in light of availability of substantial num-

ber of ex - prisoners and former prison employees who

were subject to subpoena to testify as to conditions.

42 U.S.C.A. s 1983.

2. Criminal Law 1213

Confinement within a given institution may amount

to cruel and unusual punishment. where the confinement

is characterized by conditions and practices so bad as

to be shocking to the conscience of a reasonably civil-

ized people. U.S.C.A. Const. Amend. 8.

3. Constitutional Law 272

Under the Fourteenth Amendment, a prisoner re-

tains all the rights of an ordinary citizen except those

expressly or by necessary implication taken from him

by law. U.S.C.A. Const. Amend. 14.

4. Prisons 13

Convicted maximum security inmates do not have

constitutional right to privacy or private living quarters.

5. Prisons 17

Prisoners have constitutional right to basic medical

and dental care.

6. Prisons 17

Practice of placing two prisoners in one cell at state

prison was unconstitutional where prisoners were long

term, “‘double celling” had resulted in prison exceeding

its designed capacity by some 38%, cells were designed

for one person and had square footage of approximately

63 square feet, double celled prisoners spent most of their .

time in cell with cell mate, and double celling was not a

A-6

temporary measure but represented a trend which had

continued for four years. U.S.C.A. Const. Amends.

8, 14.

7. Prisons 17

Only immediate relief which federal district court

could provide with respect to unconstitutional “double

celling” of prisoners in state prison was to declare such

practice federally unconstitutional; court would not im-

mediately order state to “single cell” or release prisoners

but would require state to proceed with reasonable dis-

patch to formulate, propose and carry out a plan which

would terminate double celling.

Christopher D. Stanley, Cleveland, Ohio, Robert

P. App, American Civil Liberties Union of Ohio, R.

Raymond Twohig, Jr., Louis A. Jacobs, Ohio State

U. College of Law, Howard J. Rosenberg, Bruce Fried-

man, Jan C. Leventer, and Edward Clark Barrows, Col-

umbus, Ohio, for plaintiffs.

Allen P. Adler, Leo J. Conway. Asst. Attys. Gen.,

Columbus, Ohio, for Defendants.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

HOGAN, Chief Judge.

Introductory

The basic question in this case is whether or not the

prisoners at the Southern Ohio Correctional Facility

for Ohio state prisoners at Lucasville, Ohio, are present-

ly being subjected to “cruel and unusual punishment”

or are being “deprived of life or liberty without due

process of law” by reason of the “double celling” — and

its concomitants — which is now and has been for some

time in effect at that institution.

A-7

The claim was made in this case, filed under 42

U.S.C. s 1983. by two inmates who had then recent-

ly been double celled. The federal rights claimed denied

are those assured under the eighth and fourteenth amend-

ments and this Court has basic jurisdiction under 28

U.S.C. ss 1331 and 1343 (3). The action was first

filed as a purported class action by the two inmates

pro se and in forma pauperis. Certification as a class

action was originally denied on the ground that the

asserted representatives were not qualified to represent

the claimed class. Thereafter, competent counsel enter-

ed appearances on behalf of the plaintiffs and there-

upon the case was certified as a class action.

[1] The plaintiffs have proceeded from the start of

this case through the evidentiary hearing in forma pau-

peris. Shortly before the trial a request was made for ap-

proximately 35 writs of habeas corpus ad testificandum

and, in addition, plaintiffs moved for two writs of habeas

corpus ad prosequendum. Seven of the writs were grant-

ed. The applications for the remainder were denied.

It was and remains the opinion of this Court (a) that a

substantial number of individuals resident of this District

(including former iamates released since the practice of

double celling began, former employees no longer in the

employ of any of the Divisions of the State of Ohio —

both of the professional and non - professional type)

existed and were within the compulsion of subpoena; (b)

that the plaintiffs were free to subpoena any such; and

(c) because of that available pool, the availability of

seven inmates for testimonial purposes was sufficient

under all of the circumstances. No limitation was plac-

ed on the plaintiffs and every subpoena requested by

the plaintiffs was issued without the prepayment of

costs and at the eventual expense of the United States,

and, in fact, a number of witnesses from the pool were

subpoenaed and did testify at the trial of this case.

A-8

The five inmates who were produced at the trial

pursuant to the writs of habeas corpus ad testificandum

did in fact each testify. The two inmates who were pre-

sent throughout the entire trial pursuant to the writs

of habeas corpus ad prosequendum sat at counsel table

and aided counsel throughout the trial of this case,

which consumed a week. Neither of them was put on

the stand, which fairly well indicates that the writs

granted were sufficient. The plaintiffs’ class, throughout

the entire controversy in this Court, has been fully and

adequately and capably represented by counsel and the

class, as such, was given adequate membership representa-

tion of its own selection.

While the plaintiffs come close to it, ' they do not

claim that double celling is per se unconstitutional. The

assertion is that under all the circumstances of this case

the practice is per accidens unconstitutional. The cir-

cumstances asserted to cumulatively bring about that

result are as follows:

a) That violence and terror, to an impermissible

degree, result from such.

b) That the guard and staff level has not been

increased, is inadequate to serve the present

population and that the inadequacy has fostered

lawlessness and violence.

c) The feeding facilities are overtaxed to the point

that the prison population is not properly fed.

d) The overcrowding has unduly burdened access

to the courts.

The plaintiffs do assert that double celling in an ap-

proimately 65 sq. ft. cell for the day - by - day times de-

scribed herein is ‘‘per se” unconstitutional.

A-9

e) The heating and ventilation systems have been

overtaxed to the point of rendering cell blocks

intolerable.

f) Available medical services are overtaxed.

g) Job opportunites have not kept pace with the

population, reducing the rehabilitation process

and the same is true of the school and schooling

facilities.

These findings and conclusions will be directed to

those areas as the relevant ones, since the State has put

at issue each of the claims.

FINDINGS OF FACT

I. The Facility

The Southern Ohio Correctional Facility is located

near the Village of Lucasville, Ohio. The immediate area

is rural. It is approximately 100 miles east of Cincinnati

and approximately 10 miles north of Portsmouth, Ohio.

It is Ohio’s only maximum security penitentiary. It was

built in the early 1970’s at a cost of some $32 million. It

was designed to replace the ancient Ohio Penitentiary in

Columbus. It is on a huge acreage tract. The structures

themselves, i. e., the facility proper, occupies more than

20 acres and is under “one” contiguous roof. Looking

at it from a brick and mortar viewpoint, it is unquestion-

ably a top - flight, first - class facility. It has been in use

only a relatively few years.

One of the controversial issues in this case is the

question of how many prisoners it was designed to house.

“Designed to house” is a rather nebulous term in this

field. Nationally, during the five or six years before

Lucasville opened, the prison population in the United

A-10

States had dropped some eleven plus percent. Nationally,

in the four years or so since it has opened, the trend has

been reversed and the prison populatien has gone up

almost forty percent. There is no controversy with this:

As built, the facility contained some 1,660 cells, and

for our present purposes, each cell was designed to and

did contain one bed. It was therefore the contemplation

of officialdom that the facility would, during its useful

life, not be called on to house more that 1,600 or 1,700

people and that would be in single cells.

The institution is probably best described as three

prisons, K block, L block, and J block, which share

common support facilities. K block and L block are

virtually identical and each consists of a long, spinelike

corridor with eight cell blocks off the corridor, a gym-

nasium at one end of the corridor, and access to the rest

of the facility at the other end of the corridor. The cell

blocks are numbered consecutively K - 1 through K - 8

and L -1 through L - 8 and each cell block has two upper

and two lower cell ranges with twenty cells to a range.

Some of the cell blocks have inner cell ranges in which

the outer wall of the cell block is not used as a wall of

the cells in the range. The rest of the cell blocks have

outer cell ranges in which the outer wall of the cell block

does constitute a wall of the cells in the range. In such

cell blocks, each cell has a window that can be opened or

closed by the occupants of the cell. A guard’s console

with controls for automatically closing and Opening all

the cells or any combination of them is located just in-

side the door from the corridor to the cell block. At the

end of each cell range closest to the guard console is

located a shower stall.

K block and L block corridors intersect each other

at a 90 © angle. A third corridor near this intersection

leads to J block, a smaller and more secure version of K

and L blocks. J block corridor only has four cell blocks

A-11

off of it (J - 1 through J - 4) and at the end of the coni-

dor is a visiting room rather than a gymnasium. J block

is used to house inmates on death row (who are single

celled) and inmates who have been placed in long - term

administrative isolation for various serious disciplinary

violations (some of whom are double celled). Each of the

four cell blocks has four cell ranges as described above.

Located near the intersection of J, K and L blocks

are the library and the school facilities. The library is

a modern, well - lit room, stocked with some 25,000

volumes. Included is a law library.2 Nearly every expert

witness who testified in this case found the library to be

superior in quality and quantity. The school facilities are

located above the library and at the time of trial con-

sisted of eight classrooms which were being ramodeled to

add additional classroom and office space.

A corridor from the intersection of J, K, and L

blocks leads to the rest of the facilities. Along this cor-

ridor are located two chapels for holding religious ser-

vices,- the commissary, a barber shop, the dining rooms

and kitchen and workshops. The workshops contain the

prison laundry, a machine shop, a shoe factory, a sheet

— shop, print shop, sign shop, and small engine repair

shop.

Finally, another corridor leads to the entrance of

the institution. Located off this corridor are the adminis-

trative offices and staff dining room, a large visiting

room, the medical and dental facilities, including a

hospital ward with twenty single isolation cells and two

ten-bed wards and the so-called merit block (D-2) where

inmates who have achieved honor status are housed.

The merit block has eighty cells and is presently single

celled.

* The plaintiffs do not claim that the law library

is objectively inadequate. It is quite adequate. The

plaintiffs’ claims rest on ‘‘unavailability.”

A-12

This complex is surrounded by two twelve - foot

high, barbed wire topped, chain link fences and eight

guard towers. Also, inside the fence are an outdoor

recreation field, outdoor visitation area, and tomato

garden. On the outside of the fence is a patrol road

and also located outside the fence is a power plant and

warehouse for the institution.

Shortly before the trial of this case, the plaintiffs

moved that the Judge who presided at this trial “‘view the

premises.” That motion was granted and, in the company

of a law clerk and with practically no notice, the facility

was toured for approximately four hours just a few days

before trial. The time expended was ample, since we

are no stranger to Lucasville by reason of prior inspect-

ions and one “on the spot” civil rights case hearing.

One of the difficulties of a “view” in a bench trial is

the extent to which the view of necessity becomes

evidentiary. Under that heading — the facility is new and

that, of course, is a plus; as such places go, it is not

lacking in color and most such places surely are; generally

speaking, it is quite light and quite airy, etc.

II. The Inmates

At the time of trial, SOCF contained some 2,300

inmates. Sixty - seven percent of the inmates were

serving either life or first degree felony sentences.

SOCF began receiving inmates in late 1972. Many of

the inmates were transferred to SOCF from the Ohio Pen-

itentiary. The closing of the Ohio Penitentiary * and the

transfer of its inmates to SOCF did not take place over-

night. The inmate population figures for SOCF have,

therefore, exhibited an increase from the very first year

* The Ohio Penitentiary continues to operate today

as the Correctional Medical and Reception Center (CM

RC), a central medical facility for all Ohio prisons.

A-13

of its operation. In more recent years however, the num-

ber of commitments by Ohio courts had greatly increas-

ed and the inmate population figures at SOCF (as do

those of the entire Ohio system) reflect that increase.

Sometime in 1975, the administration began double

celling inmates at SOCF. The inmate population figures

since 1975 are as follows:

PS DPT 6 ose kb cs ek ee 1,320

BIE y oko bo 6 ww se ow 1,954

SO, MOE i bk-ce kes Masacwb 2,202

Trial Date (May 23, 1977)...... 2,313

III. The Cells

Counting the medical ward, merit block and J, K,

and L blocks, SOCF has 1,660 cells. The medical ward

(D - 1) accounts for forty of these cells with two, ten -

bed dormitories and twenty outside cells.

The remaining 1,620 cells are either inside or out-

side cells. There are 660 inside cells and they are located

as follows:

Merit Block (D-2).............. 80

J-lthroughJ-4....... ek eceaea 260

K-1 through K-4............. 320

Inside cells measure 6’ x 106” x 9’ high, are window-

less, and consist of three solid walls with the fourth wall

barred and serving as an entrance.

At the time of trial, all the cells in K - 2 and K - 3,

most of the cells in K - 4, and some of the cells in J - 4

were doubled.

Cell blocks D-2 (merit) -80, K-1 (protective custody-

max)-80, J-1 (Super max)-65, J-2 (disciplinary isolation)

-65, and J-3 (death row)-60 are single celled. There are,

therefore, about 350 cells in “undoubled” blocks.

- A-14

There are 960 outside cells and they are located in

K - 5 through K - 8 and L - 1 through L - 8. Outside cells

measure 6’ 6” x 10’ 6” x 9’ high and are otherwise

similar to inside cells, except that they each have a win-

dow which can be opened or closed by the occupants.

Nearly all of these cells are doubled.

All cells, with the exception of those in the medical

ward, contain the following furniture and equipment:

one cabinet - type night stand, one wall cabinet, one wall

shelf, one wall mounted lavatory with hot and cold run-

ning water and steel mirror, one china commode which

is flushed from inside the cell, one wall mounted, built-

in radio, one heating and air circulation vent located near

the ceiling, one twenty - six inch lighting fixture and one

bed, 36 inches by 80 inches. In those cells which are

doubled, a second bed has been added, bunk style, to the

wall above the original.

There are at least three methods of “rooming”

prisoners that have been referred to in the testimony

in this case. One is the dormitory method, involving a

number of beds, etc, in one large room. At the other end

of the pendulum is one prisoner per cell of adequate

size. The third method is doubling up in the cells. The

dormitory method is the most objectionable. The prefer-

able or ideal is one prisoner per cell.

Each cell block at the facility contains as a “built-in”

adjunct a day room. By “built-in” we mean the place-

ment is such that one may go from any of the ranges to

the day room without leaving the block; or stated other-

wise, passage from a cell to the day room does not in-

volve opening the block door, nor does it involve walk-

ing into the corridor. The day rooms are in a sense part

of the cells and they are designed to furnish that type

of recreation or occupation which an ordinary citizen

would seek in his living room or den. Day rooms provide

a place where a prisoner may go to get out of the con-

fines of his cell and interact with different people, etc.

These day rooms vary in size. Each day room contains

A-15

a wall mounted television, four or five card tables, and a

varying number of chairs ranging from thirty to sixty.

Inmates who are celled in K - 5 through K - 8 and L - 1

through L - 8, who are not at meals, recreation, the

library, jobs, school, the visitors rooms, or showers, and,

except between the hours of 9:30 p.m. and 6:30 a.m.,

may divide their time between their cells and these day

rooms. During the daytime hours there is a ten minute

day room break every hour on the hour in which the day

room and the cells in the block are unlocked and in-

mates may return to their cells from the day room or vice

versa during that period.

The plaintiffs have claimed in this case that the

double celling and the increase in population has render-

ed the day rooms functionally useless. The assertion

rests on a number of subsidiary assertions, such as, in the

same breath, that now they are used by 80 to 120 people

at a time, whereas, they used to be occupied by about 40

at a time, and “some inmates do not use the day rooms

due to the overcrowding.” At the worst, the day room

availability has decreased 50%, but even that is specula-

tive. The most this Court could find as a fact based on the

evidence in the case is that there are infrequent occasions

during which the day rooms are not as available as they

would be if single celling were the 100% rule. That reduc-

tion is not significant in any respect.

IV. Inmate Classification

An inmate’s classification determines where he will be

housed at SOCF. The regulations governing the initial

classification and reclassification of inmates were admit-

ted as exhibits in this case and have been reviewed by

this Court. According to the regulations, a Reception

Center Classification Committee ( and later an Institu-

tion Ciassification Committee) attempts to determine

the needs and requirements of an inmate by considering

A-16

such information as staff reports, presentence investi-

gations and educational and vocational testing reports

and then assigns the inmate to appropriate custody, work

or training programs.

Upon arrival at SOCF, all new inmates are housed

in K - 5, which is also known as the Receiving Block,

pending classification by the Institution Classification

Committee. This process usually takes a couple of weeks.

Inmates from K - 5 do not eat in the dining room at the

same time as other inmates and generally do not mingle

with general inmate population.

After being classified, an inmate is assigned to an-

other cell block. Cell blocks K - 6 through K - 8 are pre-

sently used to house inmates who have trade or voca-

tional assignments. Cell blocks L - 1 through L - 8 house,

for the most part, inmates who are attending school or

have jobs. Cell block K - 3, and part of K - 4, house

inmates who choose to be “voluntarily idle.” Cell block

K - 2 is designated “limited activity” and houses those

inmates who have requested protective custody, but

other than that request have not substantiated a need for

protective custody. Cell block K - 1 houses inmates in

full protective custody. Cell blocks J - 1, 2, and 4 house

inmates in administrative isolation for disciplinary rea-

sons. Cell block J - 3 and a few cells in J - 2 constitute

death row. Cell block D - 2 is the merit block where in-

mates who have attained honor status are housed.

As a direct result of this classification system, the cell

block in which an inmate is celled establishes, in large

part, the amount of time in which an inmate must be

locked in his cell with a cellmate. For example, inmates

celled in cell blocks K - 6 through K -8 and L- 1 through

L - 8 have to be locked in their cell with their cellmate

only from around 9 p.m. to 6:30 a.m. During the rest

of the day, these inmates could be eating meals in the

dining room, at recreation (three times per week), at the

library (four times per week), at their particular job

or school, in the visitors room, the shower, or in the day

A-17

room.

Inmates celling in K - 3, K - 4, and K - 5 because of

their idle or receiving classification do not have as much

opportunity to be out of their cells as those inmates

in K - 6 through K - 8 and L - 1 through L - 8.

Furthermore, all the inmates in K - 3 and K - 4,

as well as K - 6 through K - 8 and L - 1 through L - 8,

are permitted. one weekly visit to the commissary, can

attend the weekly movie shown in the gymnasium, and

can attend religious services in the chapel.

Inmates celled in protective custody (K - 1) and lim-

ited activity (K - 2) have recreation in their respective

day room and are permitted to shower. With those ex-

ceptions or unless escorted by a guard (such as to the visi-

tors room), inmates in K - 1 and K - 2 spend all of their

time locked in their cells. As noted, K - 1 is single celled

and no one is placed in K - 1 or K - 2 who does not re-

quest it.

Similarly, inmates housed in the four J blocks spend

nearly all their time locked in their cells.

At the risk of complicating, but in an effort to sim-

plify — since permissible “out of cell time” is of such

import in a double celling case — the evidence in this

case establishes (out of 1,620 cells — the 40 hospital

cells being excluded):

I. A total of 340 are single celled, including

D - 2, 80; K - 1, 80; J - 1, 20; J - 2, 80 and J - 3,

80. Leaving a total remaining involved of 1,280

cells.

II. The occupants of 960 of those cells, K - 6, 80;

K - 7, 80; K - 8, 80; L - 1, 80; L - 2, 80; K -3,

80; L - 4, 80; L - 5, 80; L - 6, 80; L - 7, 80;

L - 8, 80; D - 2, 80; are on school, or work,or

merit status and are out of their cells (or at

least have that option) some ten hours a day.

A-18

III. The occupants of the remainder (320 cells)

are “out of cells” variably as follows:

K - 2 Limited Activity (semi - protective) 6 hrs. weekly

K - 3 Idle 4 hrs. weekly

K - 4 Administrative Isolation 2 hrs. weekly

K - 5 Receiving 4 hrs. weekly

(K - 5 are also “out of cells for meals”

and the “tour” in K - 5 is a brief one,

about 2 weeks.)

Inmates in K - 2 and K - 8 are there by “choice”

(at least to some degree). Inmates in K - 4 are there as

a result of claimed rule infractions and following a

plenary hearing.

V. Inmate Lifestyle

As the aforementioned indicates, about 75% of the

inmates of SOCF who are double celled have the choice

of spending a considerable amount of their time outside

of their cells. We turn now to examine the effect that

double celling has on other aspects of the inmates’ life-

style.

— Food —

The plaintiffs have claimed that double celling has

overcrowded SOCF and resulted in the inmates’ present

quantity and quality of being “grossly inadequate.”

To prove this allegation the plaintiffs presented three

lines of evidence: Some inmate testimony that food

portions have decreased since double celling began,

A-19

a New York prison expert who testified that the lowest

amount he ever knew spent for food for inmates in New

York was $1.70 each per day, and the food budget for

SOCF for 1975, 1976 and for the first part of 1977 (pex.

26). These figures show that $680,718.00 was expended

for food in 1975, $1,140,429.00 in 1976, but only

$233,370.00 for the first calendar quarter of 1977.

The defendants presented testimony that the food

was more than adequate in quantity and quality and that

much attention was paid to making certain that it was

served hot. The testimony established that the discrepan-

cy in the budget figures was due to a new “portion con-

trol” program instituted in all Ohio prisons. Furthermore,

the defendants pointed out that not reflected in the bud-

get figures was food supplied by other Ohio prisons, such as

milk from the London Correctional Institution’s dairy

farm.

None of the inmates who testified or appeared during

the trial of this case appeared in any way undernourished

or malnourished. The guards, as well as the administra-

tive personnel, eat certain of their meals at the prison

in a small cafeteria. The prepared food in that cafeteria

comes from the same kitchen which serves the prisoners’

dining rooms. Generally speaking, what wii! be served

to the inmates as an evening meal is served to the guards

and administrative personnel as a noon meal. No inordin-

ate amount of food is garbaged. The portions are ade-

quate. The kitchens and the dining rooms are clean.

There is evidence that in one month, April of 1976, some

174 mice were caught in the area of the kitchen and

dining rooms. That is an isolated instance and, under

the evidence in this case, does not establish that the con-

dition was present with any degree of permanence.

The evidence is more consistent with a temporary rodent

problem.

We do not mean to imply that the meals are the equi-

valent of home - cooked ones in any sense, but on the

A - 20

other hard, we certainly find them to be adequate in

every respect and there is no indication whatsoever

that prisoners have been underfed or that food facilities

have been taxed by the prison population.

— Air —

The plaintiffs have also claimed that double celling

has made the cell blocks “humid and stuffy with stale

air” and noise levels “intolerable.” Every cell has a heat-

ing and air circulation vent and many have windows.

The plaintiffs’ own expert testified that he noticed no

odors and that the cell blocks were “too quiet.” (While

the outside temperature exceeded 90° during this Court’s

inspection, the temperature inside the corridors and cells

remained quite comfortable. No excessive noise was

noted.) It is found that the institution is not unusually

stuffy or humid. The ventilation system is adequate.

Offensive odors are not present to any significant degree.

— Visitation —

SOCF is one of the few maximum security prisons

in the entire country which permits contact visitation

for all inmates. The plaintiffs’ claim that the visitation

facilities have been “overwhelmed” because of double

celling was not proven at trial, i.e., no evidence was pro-

duced to substantiate it.

— Lawless Atmosphere —

Another of the inmates’ claims was that double cel-

ling has resulted in overcrowding that has produced a

“lawless atmosphere” at SOCF that the guards can not

control. The statistics produced to establish an increase

in violence have been almost worthless to this Court

because of several differences in record keeping. This

A-21

Court does find that the plaintiffs have established that

violent incidents have increased as the inmate population

has increased. The plaintiffs have not established that vio-

lent incidents have increased out of proportion to the in-

crease in inmate population.

The testimony concerning the amount of guards

needed at SOCF was quite conflicting. Two guards testi-

fied for the plaintiffs that more guards were needed. One

of defendants’ experts testified that SOCF had too many

guards.

This Court accepts the testimony of plaintiffs’

expert from New York, Adam McGuillan, that a good

“acceptable” inmate to guard ratio is seven to one. The

inmate to guard ratio at SOCF is presently 6.13 to one,

well within the acceptable ratio.

— Plumbing, Lighting, Law Library —

No evidence was presented which would demonstrate

that the plumbing, lighting, or law library facilities are

inadequate to meet the needs of the increased popula-

tion.

As has been noted before, the plaintiffs’ complaint

with respect to the law library is not that it is inade-

quately equipped or booked. The claim is that access

is denied. There was no evidence produced at all with

respect to denial of access to the general population. The

claim really boils down to access being denied to inmates

in protective or disciplinary status. However, as applied

to such inmates, law books are brought to the blocks

involved on the request of inmates. There is no evidence

at all that any of such requests were unreasonably denied.

That entire situation would obviously exist whether the

cells were double occupied or single occupied.

A -22

— Rehabilitation — Jobs —

The plaintiffs further claim that overcrowding due to

double celling has reduced an inmate’s opportunity to

rehabilitate himself by lessening his chances of receiving

educational or vocational training or a meaningful job.

The statistics provided to this Court in plaintiffs’ exhibits

24 and 25 are as follows:

Inmates

Inmates Sc .ool Inmates

Working Full-Time Idle

January, 1975 698 197 201

January, 1976 855 345 464

January, 1977 1,154 430 281

May 2, 1977 1,150 426 360

These figures do not include inmates in administrative

isolation, death row, protective custody, merit status,

or absent with leave (a total of 355 inmates as of May 2,

1977).

The plaintiffs argue that the increase in the number

of inmates listed as working is not due to an increase

in the amount of jobs as much as it is due to a “watering

down” of the jobs that exist by assigning more inmates

to each job than are necessary to complete the job.

Thus, one inmate testified that he only actually worked

twenty minutes per day to complete his job. Other in-

mates, such as food service workers, work closer to five

or six hours each day. In any event, this Court finds that

the testimony that there are not enough jobs to go

A - 23

around is credible, * as is the testimony to the effect

that many inmates assigned to jobs work only an hour

or so a day.

— Schools —

There is no complaint about the classrooms or the

equipment or library facilities insofar as schools are con-

cerned. The classrooms are light, airy, and well equipped.

Nor is there any complaint that access to schooling has

been denied. About one out of six inmates opts to go to

school and that was the percentage at the time of single

celling, and still is. Classroom attendance involves approx-

imately 10 hours a week and inmates in school have ac-

cess to the library. There is no evidence that any inmate,

ready, able, and willing to receive schooling has been

denied the opportunity. There is evidence and it is found

that the opportunity has been substantially delayed since

double celling. Double celling has obviously interfered

with studying since studying is left for the cells and day

room.

4 Inmates who work receive twenty dollars a month.

Of this twenty dollars, eight dollars is placed in a fund

to be given to the inmate upon his release from incar-

ceration. The remaining twelve dollars may be used by

the inmate at the commissary. Inmates who do not work:

and are indigent receive personal hygiene items (razors,

soap, toothbrushes, etc.) at the expense of the state.

Indigent inmates also receive free postage and paper

for one letter per week as well as free postage for all

court related mail.

A-24

— Medical, Dental and Psychological —

At least one registered nurse and several nurses are

on duty full time. A prisoner seeking medical assistance

obtains a sick call pass from the nurses. Sick call is held

every day for the general population. It is held only oncea

week in the so - called “up - tight” blocks (isolation,

disciplinary, idle, protective custody). That means that

except for emergency situations, a prisoner in an up -

tight block has an opportunity only once a week to see

a nurse who comes around to that block. The decision

whether an inmate will be seen by a doctor is made by

a nurse and following the request of a guard and that

is true both in the uptight and general population blocks.

The facility has an arrangement with one physician

who is a qualified one and has considerable education,

training and experience in both the general practitioner

and surgical field. Sick calls are held by him at the fac-

ility at regular intervals at least twice a week, and the

same doctor who lives and offices near the institution

is available for emergencies at all times. There is a hos-

pital close by at Portsmouth, Ohio which has been used

for emergency purposes and many serious cases are

referred to the Correctional Medical and Reception

Center at the old Ohio Penitentiary at Columbus, Ohio.

There is no credible evidence in this case based on which

one could conclude that the authorities were indifferent

to the medical needs of the inmates. Each week the doc-

tor does see a substantial number of prospective patients

and also those receiving ongoing treatment, and he does

sssué such prescriptions and orders and directions as he

considers medically necessary. Those prescriptions are

daily provided for from an adequate pharmacy. There is

no substantial evidence that the directions are not follow-

ed as a general rule.

A -25

There is evidence in the case of a denial of what

inmates consider to be appropriate medical treatment

and there is evidence of isolated instances of failure to

provide medical attention on request of a guard. The

Medical staff has not been increased since the days of

single celling. The situation does, of course, leave much

to be desired, but cannot be described as out of hand or

the result of indifference.

With respect to dental — there was a full - time

dentist in the employ of the institution from April of

1976 to April of 1977. The dentist who occupied that

position left and since has been replaced. Both at the

time he came on and within a month after he left, a

substantial waiting list and backlog of dental needs

built up. There are several dental paratechnicians re-

cruited and trained from the dental staff. When the then

new dentist came on in April of 1976, there were approx-

imately 100 people waiting to see him and in mid-May

of this year, the backlog before the arrival of the new

dentist was as follows:

There were approximately 170 people waiting to get

dentures of one kind or another;

Approximately 140 people waiting to have teeth

pulled and several hundred awaiting cleaning and

cavity attention.

These temporary situations are, of course, intolerable. On

the other hand, the evidence indicates that one dentist

with the para - assistant is able ordinarily to cope with

the needs of the population to the extent that those

needs could be described as pressing. That is not to say

that a single dentist can do anything but deal with im-

mediate problems. He cannot. For instance, there is no

time at all to formulate treatment plans for patients

and carry them out. Again, there is no evidence that the

authorities are indifferent to the needs.

A - 26

Included in the staff at the facility are a psycholo-

gist and a social worker. The staff has not been increased

since the double celling. The services rendered in that

area have been substantially denied to a number of in-

mates due to the double celling.

VI. Violence

The evidence in this case relating to double celling

and violence is divided into three categories: (1) Expert,

(2) Guard and inmate, and (3) State prison management

and its records.

— Expert —

The experts were all in agreement - as is everybody -

that single celling is desirable. Double celling involves,

of course, loss of privacy and close contact with another

person involving an increase in tensions and frustrations.

That is accented (1) by the fact that the inmate has little,

if anything, to say on the choice of a cellmate, and (2)

by the fact that a substantial number of the inmates are

victims of some form of emotional or mental disorder.

One expert testified that in a maximum security prison

of any size some 15% of the inmates may be expected to

be schizophrenic and that that type is particularly prone

to violence engendered by “close quarters” and “frus-

trations”. The prison psychologist and chaplain both tes-

tified that double celling had led to increasing tension,

both proportionate and geometric, and agressive and anti-

social characteristics.

— Guards and Inmates —

Introductorily, the credibility of the inmates and the

two guards who testified for the plaintiffs is unusually

difficult of assessment. The plaintiffs’ main factual wit-

A-27

nesses consisted of the five inmates and one guard, John-

son. According to Johnson, the conditions with respect

to double celling are intolerable. He testified that two

men cannot move at the same time in a double cell

(that is not so); that in one month he had four stabbings,

two fights and a rape in a day room since double celling

and none before; that nearly all the prisoners carry

weapons to protect themselves; that in his cell block there

were two fights a week between cellmates and two rapes

a month vs. scarcely any stabbings or rapes before

and alot less fights; that extortions and body sales were

rampant now generally and scarcely occurred at all dur-

ing single celling; that most of the violence occurred

between cellmates; that one guard in a “general popula-

tion” block could maintain order if the block were single

celled but that with double celling it is “impossible” to

do so; that a guard can establish “rapport” in a single

celled block but not in a double celled one; that the day

rooms are now overcrowded and it is impossible to

maintain order., etc. Johnson came under the heading

of “protesting too much.” He has been suspended sev-

eral times and at the time of trial was the subject of some

disciplinary proceeding. He failed to report most, if not all,

of the incidents of violence he testified to - giving as the

reason they were not to be reported until verified or con-

firmed with the names of the participants and citing the dif-

ficulties in getting one inmate to name another. Based

largely on his demeanor on the stand this Court does not

regard Johnson as a credible witness.

The difficulty in assessing the credibility of the in-

mates’ testimony is pointed up by this Footnote 3 to

the Plaintiffs’ request for findings:

3/ The refusal of inmates to “snitch” on the witness

stand and name victims and predators they observed

is understandable. “Snitching” is the act of reporting

criminal behavior to the administration. The testi-

A - 28

mony shows that if it becomes known that an “in-

mate snitched” his life was not worth a plug nickel ***

Thus, while the inmates testified at length to violence,

increase in violence, extortions, rapes and body sales

and to the necessity of a substantial number of new in-

mates seeking protective custody or placing themselves

under the protection of a “man” — all, when asked on

cross - exam, declined to name names, etc. For reasons

best known to themselves the defendants did not seek a

Court order to answer. The point is that the inmate testi-

mony was conclusory and general and not of much

help from a credibility point of view.

We have no doubt that to a certain degree the crim-

inal activity described by the prisoners does exist to

a certain extent at Lucasville and, for that matter, in all

prisons. The mere classification of a prison as “high

security” implies that the overwhelming percentage of

its inmates are there because of the commission of crimes

involving violence directly (such as homicides) or court-

ing it (such as burglary or larceny) and the fact of the

matter is, as the recidivism rates show, that the inmate

is likely to repeat. The problem posed by this case is

simply whether double celling, as such, accounts for it.

—Prison Management and Its Records—

It has now been about two years since double celling

has been in practice, to some and an ever-increasing extent,

at Lucasville. The prison physician, who has been there

throughout most of that time and would be called on to

administer to any inmate seriously affected by violence,

testified that there has been no increase other than what

one would expect from increased numbers. He was joined

in that testimony by the Superintendent and other pris-

on authority. More importantly, the Regulations of the

Department of Corrections of Ohio require the written

reporting of any acts of violence. Such reports have been

A -29

made and are in evidence as plaintiff’s exhibits 28, 29 and

30. These records are in detail and bespeak credibility.

On a percentage of incident rate (obtained by div-

iding the population number into the number of inci-

dents) and on a quarterly basis, there is no substantial

difference between occurrances during single celling and

double celling. Thus, the “Stabbings” during the first

and second quarters of 1975 (single celling) were respect-

ively .22% and .40%; during the last quarter of 1976 and

the first quarter of 1977 (double celling) the figures

were .33 and .27. For “Fights” the comparable figures

were 1.05 and .47 vs. .66 and .87. For “alleged — self

inflicted” the comparable figures were .22 and .0 vs.

.28 and .04.

We accept these figures and conclusorily find that

there has been no increase in violence or criminal activ-

ity increase due to double celling; there has been due to

increased population.

CONCLUSIONS OF LAW

1. “Traditionally, federal courts have adopted

a broad hands - off attitude toward problems of prison

administration. In part this policy is the product of

various limitations on the scope of federal review of

conditions in state penal institutions. More fundamental-

ly, this attitude springs from complementary perceptions

about the nature of the problems and the efficacy of

judicial intervention. Prison officals are responsible for

maintaining internal order and dicipline . . . and for

rehabilitating, to the extent that human nature and in-

adequate resources allow, the inmates placed in their

custody. The Herculean obstacles to effective discharge

of these duties are too apparent to warrant explication.

Suffice to say that the problems of prisons in America

are complex and intractable, and, more to the point, they

are not readily susceptible of resolution by decree. Most

require expertise, comprehensive planning, and the com-

A - 30

mitment of resources, all of which are peculiarly within

the province of the legislative and executive branches of

government. For all of those reasons, courts are ill

equipped to deal with the increasingly urgent problems

of prison administration and reform. Judicial recognition

of that fact reflects no more than a healthy sense of real-

ism. Moreover, where state penal institutions are involv-

ed, federal courts have a further reason for deference

to the appropriate prison authorities.

“But a policy of judicial restraint cannot encompass

any failure to take cognizance of valid constitutional

claims whether arising in a federal or state institution.

When a prison . . . practice offends a fundamental consti-

tutional guarantee, federal courts will discharge their

duty to protect constitutional rights.” Procunier v. Mar-

tinez, 416 U.S. 396, at 404, 405, 94 S. Ct. 1800, at

1807, 40 L. Ed. 2d 224 (1973).

2. The “cruel and unusual punishment” clause

of the Eighth Amendment is “progressive and is not

fastened to the obselete but may acquire meaning as

public opinion becomes enlightened by humane justice.”

Weems v. United States, 217 U.S. 349, 30 S. Ct. 544,

553, 54 L. Ed. 793 (1910).

[2] 3. Confinement itself within a given institution

may amount to a cruel and unusual punishment where

the confinement is characterized by conditions and

practices so bad as to be shocking to the conscience

of a reasonably civilized people. Holt v. Sarver, 309

F. Supp. 362 (E.D. Ark. 1970), aff'd 442 F. 2d 304

(8th Cir. 1971).

[3] 4 Under the Fourteenth Amendment, “a

prisoner retains all the rights of an ordinary citizen ex-

cept those expressly, or by neccessary implication, taken

from him by law.” Coffin v. Reichard, 143 F. 2d 443,

445 (6th Cir. 1944).

5. The courts have a duty to protect prisoners

from unlawful and onerous treatment of a nature that,

by itself, adds punitive measure to those legally meted

out by the court. (From Sands v. Wainwright, 357

F. Supp. 1062 (M.D. Fla. 1973), vacated on other

grounds 491 F. 2d 417 (5th Cir. 1974).)

6. The foregoing principles are well and authoria-

‘ively established. and in line with them various federal

courts, in the last seven or eight years, have critically

examined the custodial institutions of many states

and cities in an effort to ascertain and, if necessary, protect

inmates from unconstitutional treatment while incar-

cerated. The question is constantly stated as one of

ascertaining the “totality of the circumstances” of the

particular case and then inquiring into whether the

totality as determined is intolerant or shocking to the

conscience, or barbaric or totally unreasonable in the

light of the ever changing modern conscience. Since the

“totality ” of the circumstances differ from case to case,

it is difficult to find “controlling” authority.

7. For example, one of the first circumstances

involved in the inquiry is whether the inmates involved

are convicts or detainees. The Second Circuit, in a double

celling case, Brooklyn v. Malcolm, 520 F. 2d 392 (1975)

emphasized at the outset that —

Here we are concerned only with the confinement

of pretrial detainees and not convicted inmates.

Malcolm was a “due process” rather than “Eighth

Amendment” case. However, there does not seem to be

any difference between the two in the sense that the

limitations imposed by both seem, under the decisions,

A -32

fairly much the same.

8. Many prior prison condition cases involving

double celling or overcrowding did not involve maximum

security convicted felons but rather county or city jails

housing pretrial detainees or misdeameanants. Brooklyn

v. Malcolm, supra; Ambrose v. Malcolm, 414 F. Supp.

485 (S.D.N.Y. 1976); Rhem v. Malcolm, 377 F. Supp.

995 (S.D.N.Y.), aff'd, 507 F. 2d 333 (2d Cir. 1974);

Inmates of Suffolk County Jail v. Eisenstadt, 360 F.

Supp. 676 (D. Mass. 1973), aff'd 518 F. 2d 1241 (1st

Cir. 1975); Jones v. Wittenberg, 323 F. Supp. 93 (N.

D. Ohio 1971), aff'd sub. nom. Jones v. Metzger, 456

F. 2d 854 (6th Cir. 1972). See also, Rodriguez v. Jim-

enez, 409 F. Supp. 582 (D.P.R.), aff'd 537 F. 2d 1

(1st Cir. 1976). Other cases involved jail structures which

were antiquated and in which the plumbing, lighting,

heating, ventilation, sanitation, and noise levels bear

no resemblance to SOCF at all. Rodriguez v. Jimenez,

supra, (jail built in 1808); Inmates of Suffolk County

Jail v. Eisenstadt, supra, (jail built in 1848); Jones v. Wit-

tenberg, supra, (jail built in 1895); Hamilton v. Schiro,

338 F. Supp. 1016 ( E. D. La. 1970 ) and Hamilton

v. Landrieu, 351 F. Supp.549 ( E. D. La. 1972 ) ( pris-

on built in 1929 ). See also, Pugh v. Locke, 406 F.

Supp. 318 (M. D. Ala. 1976 ); Holt v. Sarver, supra.

Still other cases involved dormitory or barracks housing

for inmates. Gates v. Collier, 423 F. Supp. 732 (N.D.

Miss. 1976); Holt v. Sarver, supra. The failure to provide

basic medical treatment to inmates is a condition found

in other cases which is not present in this case. Rodre-

guez v. Jimenez, supra; Pugh v. Locke, supra; Costello

v. Wainwright, 397 F. Supp. 20 (M.D.Fla. 1975), aff'd,

025 F. 2d 1239 (5th Cir. 1976); Jones v. Wittenberg,

supra, and 73 F.R.D. 82 (N.D.Ohio 1976); Hamilton v.

Schiro, supra.

9. On the question of inmate violence, Courts have

A - 33

recognized that probably no prison is a “safe” place to

live ° and that incidents of violence, including homosex-

ual attacks, are going to occur in the best run prisons.

See, e.g., Finney v. Hutto, 410 F. Supp. 251 at 263

(E.D. Ark. 1976). It is simply impossible to stamp out

crime and violence in a place where one is the most apt to

expect it — a maximum security prison. For one reason

the authorities are simply unable in most incidents to as-

certain the identity of the agressors. This fact of life does

not, of course, excuse prison officials from using ordinary

care for the safety of inmates from violence from other in-

mates. The defendants have not failed to use ordinary

care for inmate safety. A sufficient number of guards has

been provided. Homosexuality, enforced and consensual,

extortion and criminal activity have increased with

double celling, but only proportionally and not geomet-

rically.

[4] 10. With respect to inmate privacy, this Court

is aware of no authority holding that convicted maxi-

mum security inmates have a constitutional right to pri-

vacy or private living quarters — nor have we been cited

to any.

[5] 11. Medical and Dental. The Supreme Court

has recently reaffirmed: “These elementary principles

establish the government’s obligation to provide medical

care for those whom it is punishing by incarceration . . .

‘ it is but just that the public be required to care for the

prisoner, who cannot, by reason of a deprivation of lib-

> One witness testified that in the same period of time

during which two inmates were killed at SOCF, 164

inmates and 16 staff members were killed at another

state’s maximum security prison of comparable size to

SOCF.

A - 34

erty, care for himself.’ ” Estelle v. Gamble, 429 U‘S.

97, 97 S.Ct. 285, 290. 50 L.Ed. 2d 251 (1976). The

state may not be indifferent to but must provide basic

care. And that, of course, is true of dental care. The

record does establish that the inmates’ State has provided

an adequate medical staff consisting of a physician and

several nurses; that the doctor holds at least semi - weekly

sick calls; that he is subject to and does respond to emer-

gency calls; that patients have been treated, hospital-

ized at the location, and on occasion as required taken

to local or Columbus hospitals. The constitutional

requirements of basic medical care and concern for the

inmates have been met.

That cannot be said of the dental care situation.

There have been two occasions during which the defen-

dants have failed to provide adequate dental care and

each of them has occurred when the state - provided

dentist resigned and there existed a vacancy pending

obtaining a successor. At the present time a competent

dentist is adequately serving the facility and whatever

relevancy the previous deficiency had to “double celling”

has passed.

(6} 12. It is our conclusion overly and on balance

that the double celling at Lucasville is unconstitutional.

The conclusion is based on these reasons.

A

The inmates are “long term.” That can only accent

the problems of close confinement and overcrowding.

A - 35

B

The rated capacity of the installation is 1,600. It

was designed to hold that number. Overly, it is now hold-

ing some 38% more people than the designers and build-

ers intended it to. One method the Courts have used

rather consistently to gauge overcrowding has been to

compare the actual population with the rated capacity.

Overcrowding necessarily involves excess limitation of

general movement as well as physical and mental injury

from long exposure. Remedial decrees have issued limit-

ing to “design capacity.” See Miller v. Carson, 401 F.

Supp. 835 (M.D. Fla. 1975); Ambrose v. Malcolm,414 F.

Supp. 485 (S.D.N.Y. 1976). In the latter case, the Court

said:

“« |. . it is manifest that the defendants

may not house detainees in the dormitor-

ies of (the prison) in numbers significantly

in excess of its rated capacity. Certainly

this is true where, as here, the defendants

have presented no evidence as to why the

capacity set by the defendants themselves —

or their predecessors — should not control,

subject only to such variation as the record

- in this case may justify.” (at 494)

“Rated capacity” or “design capacity” was directed by

remedial decree in Taylor v. Sterrett, 344 F. Supp.

411 (N.D. Tex. 1972). See also, to the same general

effect: Hamilton v. Schiro, 338 F. Supp. 1016 (E.D.

La. 1970); Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala.

1976).

C

The cells were designed, built and rated to house

one man. The square footage in each is, for our purposes,

A - 36

approximately 63 square feet — meaning that double

celling reduces the square footage of living quarters per

man to something in the neighborhood of 30 - 35 feet

at best.

One court has said flatly, “ .. . 50 square feet of

living space is the minimal acceptable requirement to

comport with the Constitution.” Gates v. Collier, 423

F. Supp. 732, 743 (N.D. Miss. 1976). That conclusion

is supported by the testimony in this case and other-

wise,

The American Correctional Institution has concluded

that 75 square feet is the minimally acceptable standard.

The National Sheriffs Assn. Handbook on Jail Archi-

tecture (1975) asserts that single occupancy detention

rooms should average 70 - 80 square feet (at pg. 62).

The National Sheriffs Assn. Manual on Jail Adminis-

tration (1970) suggests that in multiple celling 55 square

feet of space per occupant is mimimal.

The National Council on Crime and Delinquency

Model Act for the Protection of Rights of Prisoners

(1972) concludes that “not less than fifty square feet

of floor space in any confined sleeping area” should be pro-

vided as the minimal.

The Report of the Special Civilian Committee for the

study of the United States Army Confinement System

(1970) indicates that the Army standard in 1969 was 55

Square feet and the Army, not known for “coddling,”

adheres to that.

All of the above conclusions deal with “sleeping

space” and contemplate additional space for other pur-

poses, such as day rooms. All are relatively contempor-

ary. All indicate the “contemporary” standard. Weems.

See also, Pugh v. Locke, supra, requiring single occupancy

isolation cells of 60 square feet; Martinez v. Jimenez,

409 F. Supp. 582 (D.P.R. 1976) “not less than 10x 7.”

In the Gates v, Collier case, supra, the Court observed

with respect to the standard of 50 square feet of living

(sleeping) space per man, “No one takes issue with the

basic requirement for human decency and this Court

A -37

holds a failure to achieve that minimal standard contra-

venes the Eighth Amendant prohibiting cruel and un-

usual punishment.”

D

At the best a prisoner who is double celled will

spend most of his time in the cell with his cellmate. A

substantial number must so spend ail but six hours a

week and another substantial number all but four hours

a week.

E

The double celling involved here began almost two

years ago and now involves some 1,400 people. In other

words, this is not a situation in which the present need

of and for single cells has just been brought about through

a reversal in trends. As we have pointed out, the prison

population in the United States declined steadily in the

early to middle seventies and was relatively stable until

1972. Since then it has grown some 39 or 40% and 1976

was the largest single year on record. Constitutionality

and unconstitutionality are relative or elastic terms and

we certainly are not concluding that all double celling

in any 60 square foot cell is beyond the ambit. The

State need not contemplate a trend reversal. But the

present trend has continued for four years — the double

celling at Lucasville has done nothing but increase. It

is in that background of relative permanence that the

conclusions herein are reached. Double celling in 60 -

foot cells is undoubtedly permissible as a temporary

measure, but we deal not with anything temporary

here.

REMEDY

[7] At this time and on this present record, this

A - 38

Court is not in any position to do aught but conclude and

declare that double celling at Lucasville is federally un-

constitutional.

That conclusion (if it be eventually determined to

be correct) may require the State to build additional

facilities and to raise the funds necessary to do so. This

Court certainly has no power to direct that on the pre-

sent record and it is problematical whether a Court

would ever be in a position to do so.

As the Court said in Brooklyn v. Malcolm, 520 F.

2d 392 (2nd Cir. 1975), “we, can, however, order the re-

lease of persons held under conditions which deprive them

of rights guaranteed by the Constitution unless the con-

ditions are corrected within a reasonable time.”

The plaintiffs urge that the defendants should be

ordered to “single cell” or “release” right now. We rather

doubt that the State is, overnight, prepared to move any

substantial number of inmates from Lucasville and “sin-

gle cell” them elsewhere. A “single cell” or “release” or-

der would be clear abuse of discretion on the present re-

cord. On the other hand, the State must proceed with

reasonable dispatch to formulate, propose and carry out

some plan which will terminate double celling at SOCF.

Within ninety (90) days from the filing hereof, the

defendants may propose and file herein such a plan.

A date for hearing thereon will be thereupon assigned.

No order will issue at this time. Jurisdiction is retained.

4

A -39

FILED

No.C-1-75 -251 March 21, 1978

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KELLY CHAPMAN, et al.,

Plaintiffs

vs.

JAMES A. RHODES, et al.,

Defendants

MEMO

An evidentiary hearing has taken place in this case

on the alternative plans to terminate double celiing at

Lucasville (as submitted by the defendants) and on the

“incremental reduction” suggestion of the plaintiffs.

The defendants have proposed five alternate plans.

Alternates numbered 4 and 5 are contingent upon fur-

ther action by the Ohio Legislature and would require

voter approval. At best, either plan would take something

in the neighborhood of five years to put into effect and

involve too much speculation to merit approval.

Alternative Plans 2 and 3 each would involve the in-

stallation of dormitories, one in cell blocks and the other

in a gym and shop area. From the evidence at this hear-

ing, as well as at the merit trial of this case, it is clear

that “dormitory” facilities are even less desirable than

double celling; in other words, those cures are worse

than the ailment.

Alternate 1 proposes that double celling be authoriz-

ed only for cell blocks containing prisoners having

either a job or school assignment, or both. The inmates

A - 40

involved in double celling would be permitted to remain

outside these cells between the hours of 6:30 a.m. and

9:30 p.m. All other housing areas would be authorized

single cells only. The trouble with this alternate is that

it would (or could) lead to an inmate population of

2,500 some 200 more than when this case started. And,

as we have seen, the greater the population, the less

meaningful the job and school assignments. Alternate 1

has merit to the extent that it deals with the problem of

“around the clock” double celling. In the end, however,

it would simply add to the overtaxation of the facilities

of the institution.

The plaintiffs suggest that this Court simply order

the population reduction by the defendants of 100 men

per month until the population is reduced to design

capacity, by whatever means the defendants select.

When this case was tried, the population was ap-

proximately 2,300. It is now approximately 2,000.

For working purposes, the design capacity is 1,700.

So a reduction of 300 will accomplish the desired result

(including, of course, the more meaningful job and

school assignments and rehabilitation services).

The Ohio (pertinent) prison population is about

13,000. Lucasville is the only maximum security institu-

tion (the classification into which involves considera-

tions of potential danger to society, escape likelihood,

etc.). There are three medium security institutions in

Ohio, at Marion, Chillicothe and London. Of its total

inmate population, 1,400 entered Lucasville in the period

1975 - ‘76 - ‘77.

The plaintiffs suggest that the overall population

(statewide) could be reduced by commutation, parole,

etc. Neither this Court nor the defendants have any

control of such matters - nor any business in it. The

plaintiffs also suggest the increased use of half - way

houses (for suitable inmates of the general population)

with the “domino” affect it would have throughout;

or the use of local jails. The latter are up to capacity -

A,- 41

or over - already. The former usage would depend on the

parole authorities and for that and other reasons it is

not feasible to get into that.

The State has not seriously contested the assertion

that some of its other correctional institutions are not

overpopulated or even full. The State does assert that

it could not accomplish a wholesale transfer out of

Lucasville of some three or four hundred inmates over-

night, or even in a brief period of time. That assertion

is reasonable - the State does not contest that a “mix”

can reasonably be accomplished in a reasonable time.

Conclusorily - (1) we are satisfied from the evidence

that a reduction in population can be reasonably ac-

complished, (2) that the choice of method (reducing

admissions, accelerating transfers, etc.) should be left

to the defendants, (3) that a reduction in inmate popula-

tion of twenty - five (25) men per month beginning in

April, 1978 and continuing until the population is re-

duced to approximately 1,700 overall is proper and the

defendants should be ordered so to do.

The defendants have moved for a reconsideration

of the June 29, 1977 Conclusions of this Court - based

on Hite v. Sessions, 564 F. 2d 670 (4th Cir. 1977).

There are some substantial differences in the facts involv-

ed and the motion to reconsider is therefore denied.

The parties are requested to prepare and submit

a proposed judgment in accord with the Findings and

Conclusions of June 29, 1977 and this memo. If the

parties are not able to agree on a proposed judgment,

each side may submit his own.

/s/ Timothy Hogan

United States District Judge

A -42

FILED

NO.C-1-75-251 April 7,1978

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KELLY CHAPMAN, et al.,

Plaintiffs

vs,

JAMES A. RHODES, et al.,

Defendants

JUDGMENT

This matter having come before the Court to determ-

ine the relief necessary to implement this Court’s order

of June 29, 1977, and the Court having considered the

evidence presented at all hearings conducted in the case,

the briefs and argumer.ts of the parties, and its memor-

anda of June 29, 1977, and March 21, 1978, it is hereby

ORDERED, ADJUDGED, AND DECREED:

1. The Findings of Fact and Conclusions of Law

of June 29, 1977 and the Memorandum decision of

March 21, 1978 are adopted and incorporated herein

as the Findings of this Court for purposes of this Order.

2. Defendants shall reduce the assigned population

at the Southern Ohio Correctional Facility ( S.O.C.F.)

from the population on March 21, 1978 (approximately

1995) by twenty - five persons on or before April 30,

1978, and shall continue to reduce the population by

twenty - five persons every thirty days thereafter until

the population is reduced to the single - celled capacity

of the institution.

A - 43

3. Defendants shall use any constitutional means

of their choice to accomplish the population reduction,

including reducing admissions, accelerating transfers,

etc., provided that the defendants shall not transfer

members of the plaintiff class to other institutions in

which they will be double - celled, or placed in dormi-

tories (unless the transferees have been reclassified).

4. Defendants shall submit to the Court and

to counsel for the plaintiffs, within ten days after the end

of each thirty - day period, a statement showing the num-

ber of the assigned population at S.O.C.F. at the end of

the period (In - house, Absent With Leave and Absent

Withouv Leave).

5. Costs are awarded to plaintiffs.

6. Any issue involving attorney’s fees is severed and

will be passed on in due course on any application filed

therefor. There is no just reason to delay the entry of

this judgment as to the other issues and the entry hereof

is directed.

/s/ Timothy Hogan

United States District Judge