Appendix — RICHARD D. LAMM v. FIDEL RAMOS (Nos. 80-1340, 80-1329)

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80-1349

No.

IN THE

e

f

Office-Supreme Court, U.S.

FILED

FEB 6 1981

ALEXANDER L. STEVAS,

CLERK

SUPREME COURT OF THE

UNITED STATES

October Term, 1980

The Honorable RICHARD D. LAMM, Governor

of the State of Colorado; JAMES G. RICKETTS,

Executive Director of the Colorado Department

of Corrections; JOHN PERKO, Director of Adult

Services of the Colorado Department of

Corrections; EDGAR FOX, Director of the

Division of Correctional Industries of the

Colorado Department of Corrections; and

WILLIAM WILSON, Superintendent of the

Canon Correctional Facility,

Petitioners,

Vv.

FIDEL RAMOS, DAVID LEE ANDERSON,

SADIKI LISIMBA AJAMU, (a/k/a Eugene

Collins), ALEXANDER ROSES, MARK J.

MENCHETTI, LESTER LASENBY,

Respondents.

LPO LOA ALAA IAAI OAL AOC OLIGO AOI AION Af A IN ie,

APPENDIX TO THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT.

PPO P PP PP PPP PPP PPP PPP PPP PP PPBPPPPPPPPPP errr

J.D. MacFARLANE DAVID K. REES

Attorney General Assistant Attorney General

of Colorado Litigation Section

RICHARD F. HENNESSEY Attorneys for Petitioners

Deputy Attorney General

1525 Sherman Street, 3d Floor

MARY J. MULLARKEY Denver, Colorado 80203

Solicitor General Telephone: (303) 839-3611

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals for the

Tenth Circuit dated September 25, 1980, as modified

on rehearing November 10, 1980. ................. A-1

Opinion of the United States District Court for the

District of Colorado dated December 20, 1979. ..... A-51

Judgment of the United States Court of Appeals dated

ge ee A-133

Order denying the parties’ petitions for rehearing

Gated Wovembet Bi, Te sac cccscc ccc ccc ccc cece A-137

Defendants’ exhibit 1137, Memorandum from the Leg-

islative Council staff to Senator Ralph Cole dated

August 23, 1979, re: Chronology of Events Concerning

the Construction Projects at the Various Correctional

Facilities (without attachments). .................. A-143

A-1

OPINION OF THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT DATED SEPTEMBER 25, 1980, AS

MODIFIED ON REHEARING NOVEMBER 10, 1980

A-3

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FIDEL RAMOS, DAVID LEE

ANDERSON, SADIKI

LISIMBA AJAMU (a/k/a

Eugene Collins),

ALEXANDER ROSES,

MARK J. MENCHETTI and

LESTER LAZENBY, et al.

Plaintiffs-Appellees,

)

)

)

)

)

)

)

)

)

)

Vv. )

) NO. 79-2324

THE HONORABLE ) (D.C. No. 77-K-1093)

RICHARD D. LAMM, )

Governor of the State of )

Colorado; JAMES G. )

RICKETTS, Executive )

Director of the Dept. of )

Corrections; JOHN PERKO, )

Director of Div. of Adult )

Services of Colo. Dept. of )

Corrections; EDGAR FOX, )

Dir. of Div. of Correctional )

Industries of Col. Dept. of )

Corrections and WILLIAM )

WILSON, Supt. of Max. Sec. )

Unit (Warden) )

)

)

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

PREVIOUS PAGE WAS BLANK

:

A-4

J.D. McFarlane, Atiorney General, and David K. Rees.

Assistant Attorney General, Denver, Colorado (Richard F.

Hennessey, Deputy Attorney General; Mary J. Mullarkey,

Solicitor General; Sarah Scott Sammons, Assistant Attor-

ney General, Litigation Section; Tarquin Jay Bromley,

Assistant Attorney General, Human Resources Section,

Denver, Colorado, were on the brief) for Defendants-

Appellants

James E. Hartley, of Holland & Hart, Denver, Colorado and

Peggy A. Wiesenberg, National Prison Project, Washington,

D.C. (Hugh Q. Gottschalk, Denver, Colorado and Ralph I.

Knowles, Jr., National Prison Project, Washington, D.C..,

were on the brief) for Plaintiffs-Appellees

William C. Robb, Denver, Colorado (Philip G. Dufford of

Welborn, Dufford, Cook & Brown, Denver, Colorado and

Michael T. Risner, State Capitol, Denver, Colorado, were on

the brief) for Amicus Curiae The General Assembly of the

State of Colorado*

*The position of The General Assembly was supported by additional

amici curiae, the Attorneys General of States of Alaska, American Samoa.

Arizona, Delaware, Hawaii, Idaho, Indiana, lowa, Kansas. N. Mexico,

Ohio, Oklahoma, S. Dakota, Utah, Washington, Wyoming, Illinois, Michi-

gan and Nebraska.

A-5

Before HOLLOWAY, BARRETT and LOGAN,

Circuit Judges

HOLLOWAY, Circuit Judge

The defendants-appellants, hereafter the State or the

State of Colorado, appeal from an order of the United States

District Court directing inter alia that the State of Colorado

close the maximum security unit cf the Colorado State Peni-

tentiary at Canon City, Colorado, hereinafter referred to as

“Old Max.” The order was premised mainly on findings of

numerous violations of the constitutional rights of the plain-

tiff class (inmates of the penitentiary) under the Eighth

Amendment protecting against cruel and unusual punish-

ment, with some additional constitutional infringements

also being found. Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.).

Implementation of the order to close Old Max was deferred

on the condition that the State would present proper plans

for eradication of the constitutional violations found by the

district court.’ Id. at 169-70.

;

THE FACTUAL BACKGROUND

In November 1977 Fidel Ramos, an inmate at Old Max,

filed a pro se civil rights suit under 42 U.S.C. §1983 against

certain State defendants challenging as unconstitutional

his status as a “transitional worker” at Old Max and his

living conditions at that facility. In February 1978 the

National Prison Project and the A.C.L.U. Foundation of

Colorado appeared on behalf of Ramos and filed an amended

' The State of Colorado, after filing a timely notice of appeal on December

28, sought a stay of the judgment from the district court pending final

resolution of this appeal. The district court, after a hearing, refused to

grant the stay on February 21, 1980. VI R. 1293-C; Ramos v. Lamm,

supra, 485 F.Supp. at 180. The State of Colorado then filed in this court a

motion to stay enforcement of the judgment. On March 14, 1980 we

granted the stay except with respect to the portion of the judgment and

order which related to the health care of the inmates at Old Max. The

stay order has been continued pending disposition of this accelerated

appeal on the merits.

A-6

complaint, styled as a class action, basically alleging that

“the totality of the conditions” at Old Max violated various

constitutional rights of the inmates confined in that facility.

The amended complaint did not seek compensatory or puni-

tive damages as did the original pro se complaint; rather it

asked only for declaratory and injunctive relief along with

costs, expenses, and attorneys’ fees. The district court certi-

fied the suit as a class action under Rule 23(a), F.R.Civ.P.

and described the class as “[a]ll persons who are now or in

the future may be incarcerated in the maximum security

unit of the Colorado State Penitentiary at Canon City, Colo-

rado.” I R. 62.”

After extensive discovery trial began on October 15,

1979. Following five (5) weeks of trial, the district court on

November 15 ruled from the bench in favor of the plaintiff

class and entered certain emergency orders pertaining to

medical care. On December 20 the court filed a memoran-

dum opinion and order supplementing the bench ruling and

detailing its findings of violations of the plaintiffs’ rights.

Ramos v. Lamm, supra.®

On this appeal the State of Colorado argues that the

trial court erred: (1) in refusing to abstain from exercising its

jurisdiction in this case; (2) in failing to “apply the correct

constitutional standard in making its findings that the

totality of conditions at... [Old Max] violated the plaintiff

class’ eighth amendment rights;” (3) in finding a constitu-

tional violation because the evidence, measured under the

correct constitutional standard, was insufficient to support

such findings; and (4) in choosing an appropriate remedy.

We will detail additional facts as we discuss the appellate

contentions, to which we now turn.

* The class definition was later amended at tria! to include: “All persons

who now or in the future may be incarcerated in the maximum security

unit, or the new maximum or close security unit, of the Colorado Depart-

ment of Corrections.” See VI R. 1165, 1274; XL R. 128-29.

* A final judgment under Rule 54(b), Fed. R. Civ. P., was entered on the

claim for injunctive relief. See Ramos v. Lamm, supra, 485 F. Supp. at

170. No final judgment was rendered on the claims for attorneys’ fees

and costs and therefore those claims are not before us now.

A-7

iI

ABSTENTION

Subsequent to the filing of the amended complaint the

State filed.a “motion to dismiss and/or abstain.” After a

hearing the district court denied the motion to abstain with-

out prejudice to the issue being raised at a later time. During

closing arguments, counsel for the State again asked the

district court to abstain from exercising its jurisdiction.

In its written opinion the court concluded that although

it had shown “great deference” to Colorado prison officials in

the past, it was unable to continue that deference in light of

the “substantial, often compelling, evidence of long existing

and continuing constitutional violations.” 485 F.Supp. at

132. Accordingly, the district court declined to abstain.

The State first strenuously argues for reversal under

the principles enunciated in such cases as Colorado River

Water Cons. Dist. v. United States, 424 U.S. 800; Younger v.

Harris, 401 U.S. 37; Burford v. Sun Oil Co., 319 U.S. 315;

Railroad Comm’n v. Pullman Co., 312 U.S. 496. The state

claims that there were several pending state proceedings in

which the conditions of confinement at Old Max were being

challenged, that the plaintiffs could have intervened as a

matter of right in at least one of these proceedings under

Colo. R. Civ. P. 24, and that the plaintiffs could have insti-

tuted a §1983 civil rights action in a Colorado state court.

Thus abstention was mandated since the plaintiff class had

an “opportunity” to present their federal claims in a state

forum.

The State further claims that the principle of comity

and the critical state interest in the operation of its penal

system make federal court abstention “particularly impor-

tant where the plaintiff challenges the constitutionality of

the state’s prison system”; that “the state’s efforts to estab-

lish a coherent policy with respect to a matter of substantial

public concern” were disrupted by the district court’s refusal

to abstain; and that since questions of state law are critical

to the resolution of the case, the district court should have

abstained. See Brief of Appellant at 15-25.

A-8

We are acutely aware of the delicate role of the federal

courts in matters involving the administration, control, and

maintenance by the states of their penal systems — an area

historically within the domain and control of those

sovereign entities. See Battle v. Anderson, 564 F.2d 388,

391-92 (10th Cir.); Bethea v. Crouse, 417 F.2d 504, 505-06

(10th Cir.); see also Procunier v. Martinez, 416 U.S. 396,

404-05; Preiser v. Rodriguez, 411 U.S. 475, 491-92. We can-

not agree, however, with the State’s argument here that the

district court abused its discretion’ in refusing to abstain in

view of the serious violations alleged of basic rights under

the First, Eight, and Fourteenth Amendments, and the sub-

stantial evidence later offered on these claims. See, e.g.,

Campbell v. McGruder, 580 F.2d 521, 527 (D.C.Cir.); and see

Bell v. Wolfish, 441 U.S. 520, 562. “The doctrine of absten-

tion, under which a District Court may decline to exercise or

postpone the exercise of its jurisdiction, is an extraordinary

and narrow exception to the duty of a District Court to

adjudicate a controversy properly before it.” Colorado River

Water Cons. Dist. v. United States, supra, 424 U.S. at 813.

Only in “exceptional circumstances” should a federal plain-

tiff be ordered to repair to the state court. Id.; accord, Zwick-

ler v. Koota, 389 U.S. 241, 248 (abstention appropriate “only

in narrowly limited special circumstances”).

In reviewing the district court’s refusal to abstain, we

note that the Supreme Court has “confined the circum-

stances appropriate for abstention to three general catego-

ries,” none of which apply to justify refusal to hear this

constitutional case. Colorado River, supra, 424 U.S. at 814;

see generally 17 C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure §§4241-55 (1978). This is not a case

where the federal constitutional issues “might be mooted or

presented in a different posture by a state court determina-

tion of pertinent state law.” Colorado River Water Cons. Dist.

v. United States, supra, 424 U.S. at 814; Railroad Comm’n v.

Pullman Co., supra, 312 U.S. at 500-01: see Manney

* The decision to abstain is largely committed to the discretion of the

district court. See e.g., Will v. Calvert Fire Ins. Co., 437 U.S. 655, 663-66

(1978) (plurality); Baggett v. Bullitt, 377 U.S. 360, 375; George v. Parratt,

602 F.2d 818, 819 (8th Cir.).

A-9

v. Cabell ___. F.2d ____ (9th Cir. No. 79-3260, April 29,

1980). The Manney case does not apply the abstention doctrine

in the setting of a correctional institution controversy, but it

does so in a case where the application of two state statutes

might avoid the federal constitutional issues. Here there are

no underlying issues of state law which, if resolved, might

avoid the decision of this case as a whole and its substantial

constitutional claims, most of which we uphold.” The rights

claimed to have been violated are plainly federal in origin

and nature and are in no way “entangled in a skein of state

law that must be untangled before the federal case can

proceed.” McNeese v. Board of Educ., 373 U.S. 668, 674. The

mere fact that a federal claim, brought in federal court,

might have been brought instead in state court does not

justify abstention. See, e.g., Zablocki v. Redhail, supra, 434

U.S. at 379-80 n.5; Colorado River, supra, 424 U.S. at 813-

14; Zwickler v. Koota, supra, 389 U.S. at 251.

Likewise, this is not a case which presents “difficult

questions of state law bearing on policy problems of substan-

tial public import whose importance transcends the result in

the case. ..at bar.” Colorado River, supra, 424 U.S. at 814.

In Burford v. Sun Oil Co., supra, 319 U.S. 315, the Supreme

Court held that the district court should dismiss a complaint

on the ground that the issues involved a specialized aspect of

a complicated local regulatory system which, the court con-

cluded, should be left to local administrative bodies and

courts. See also Alabama Public Service Comm'n v. Southern

R. Co., 341 U.S. 341, 349. Here local state courts have not

been assigned a special review function over the administra-

tion and maintenance of Old Max. There is no state adjudica-

tive system charged with the implementation of state policy

as in Colorado River. Thus the exercise of federal jurisdic-

tion in this case will not cause a widespread disruption of a

unified scheme of local regulation. See, e.g., Campbell v.

McGruder, supra, 580 F.2d at 525; Santiago v. City of Phila-

delphia, 435 F.Supp. 136, 145 (E.D.Pa. 1977); see generally

Procunier v. Martinez, supra, 416 U.S. at 405-06; Preiser v.

* It is true, as the State points out, that the district court did discuss and

interpret several state statutes. See 485 F.Supp. at 139, 146, 157, 159-60,

167 n. 44. However, resolution of these state law questions does not

mandate the conclusion that the district court should have abstained

from deciding this case which is primarily concerned with federal consti-

tutional law. See Hagans v. Lavine, 415 U.S. 528, 545-46.

A-10

Rodriguez, supra, 411 U.S. at 499 & n.14. The fact that a

federal constitutional challenge is made against state penal

administration “does not establish that the controversy is an

unduly sensitive one beyond legitimate federal concerns.”

McRedmond v. Wilson, 533 F.2d 757, 764 (2d Cir.).

Finally, this is not a case in which the plaintiffs have

attempted to enjoin a pending state proceeding initiated by

the state against them in which they would have an oppor-

tunity to present their federal claim in a state forum. See

Younger v. Harris, 401 U.S. 37 (1971); see also Moore v. Sims,

442 U.S. 415, 423-25. Here there is no pending state proceed-

ing initiated by the state. There are only pending actions in

the state court with a number of similar issues, in which the

plaintiff class might have intervened. “Generally, as be-

tween state and federal courts, the rule is that ‘the pendency

of an action in the state court is no bar to proceedings con-

cerning the same matter in the Federal court having

jurisdiction ....’” Colorado River, supra, 424 U.S. at 817;

accord, Will v. Calvert Fire Ins. Co., supra, 437 U.S. at 662

(plurality) and 670 (Brennan, J., dissenting). Consequently,

the district court correctly determined that abstention

under the Younger line of cases was inappropriate. See

Ramos v. Lamm, supra, 485 F.Supp. at 174.

In sum, we conclude there was no error or abuse of

discretion by the district court in declining to abstain from

hearing this constitutional case and the substantial consti-

tutional claims asserted. As the Supreme Court noted in

Procunier v. Martinez, supra, 416 U.S. at 405-06:

[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 regulation or practice offends a fun-

damental constitutional guarantee, federal courts, will

discharge their duty to protect constitutional rights.®

® Appellant argues that Procunier is distinguishable because in that prison

case “there was no parallel state proceeding and. . .{it] was strictly a

first-amendment case.” Reply Brief of Appellant at 4. We cannot agree

that the Supreme Court’s reasoning logically applies only to First Amend-

ment claims. And for reasons already noted we do not feel that the

pending state proceedings justified abstention from hearing this case.

A-11

Like the trial judge, we are moved by the words of Judge

Murrah from Stapleton v. Mitchell, 60 F. Supp 51, 55 (D.

Kan.), words recalled by the Supreme Court in Zwickler v.

Koota, supra, 389 U.S. at 248, in describing the duty of

federal courts “to guard, enforce, and protect every right

granted or secured by the Constitution of the United States”:

We yet like to believe that whenever the Federal Courts

sit, human rights, under the Federal Constitution are

always a proper subject for adjudication, and that we

have not the right to decline the exercise of that juris-

diction simply because the rights asserted may be ad-

judicated in some other forum.

lil

THE EIGHTH AMENDMENT CLAIMS

In a bifurcated argument the State, supported by the

Colorado General Assembly as amicus, challenges the dis-

trict court’s ultimate finding that the constitutional rights of

the plaintiff class have been violated as a result of the condi-

tions of confinement at Old Max. Their general line of argu-

ment is that (1) the trial court failed to use the correct

constitutional standard in assessing the Eight Amendment

claims, and (2) the evidence, measured by the correct stan-

dard, “is insufficient to support the trial court’s finding that

the conditions of confinement. ..constitute cruel and un-

usual punishment.” See Brief of Appellant at 25, 34; Brief of

Amicus Curiae at 13-14.

We will consider the constitutional standard to be ap-

plied to the Eight Amendment claims first. Then we will

analyze the more specific challenges to the trial court’s find-

ings leading to its conclusion that the State has violated the

constitutional guarantee.

A. THE CONSTITUTIONAL STANDARD

In Battle v. Anderson, supra, 564 F.2d at 393. we stated

that “the Supreme Court has not wavered in its holding that

the Eight Amendment. . .is, inter alia, intended to protect

and safeguard a prison inmate from an environment where

A-12

degeneration is probable and self-improvement unlikely be-

cause of the conditions existing which inflict needless suffer-

ing, whether physical or mental.” In affirming the district

court’s finding there that overcrowding in the Oklahoma

State Penitentiary violated the inmates’ Eighth Amend-

ment rights, we held “that while an inmate does not have a

federal constitutional right to rehabilitation, he is entitled

to be confined in an environment which does not result in his

degeneration or which threatens his mental and physical

well being.” Jd. at 401, 403.

The district court and the plaintiffs rely to some degree

on this language from Battle to support the conclusion that a

constitutional violation occurred here.’ See 485 F.Supp. at

133, 156; Brief of Appellee at 43, 101. The State and the

amicus say that it was error to apply the “degeneration

standard” from Battle, error which taints the finding that

the totality of conditions at Old Max violate the Eighth

Amendment. They urge that we adopt instead the standard

enunciated in Newman v. Alabama, 559 F.2d 283, 291 (5th

Cir.), cert. denied, 438 U.S. 915:

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 punishment, that ends its obligation

under Amendment Eight.

See Brief of Appellant at 27-33; Reply Brief of Appellant at 6,

9-11; Brief of Amicus Curiae at 8-9, 11-14.

7 The district judge did not rely solely upon the quoted language from

Battle in finding that the inmates’ constitutional rights had been

violated. He also stated (485 F.Supp. at 153-54 n.20):

I find that the conditions of confinement at. . .|Old Max] meet all

tests by all known measures of proof. As shown by substantial evi-

dence, these conditions shock the conscience, are incompatible with

evolving standards of decency, involve unnecessary and wanton

infliction of pain, and evidence both deliberate indifference to the

prisoners’ protected interests and “circumstances and conduct so

grossly incompetent, inadequate or excessive as. . . to be intolerable

to basic fairness.” (Emphasis added).

See also Brief of Appellees at 37-38.

A-13

We see no conflict between our decision in Battle and the

Fifth Circuit’s decision in Newman. The standard

announced in Battle concerned degeneration in relation to

the entire penal environment — the conditions of confine-

ment. These conditions were not identified in Battle beyond

inadequate cell space. We conclude that in the areas of shel-

ter, sanitation, food, personal safety, and medical care — the

core areas in any Eighth Amendment claim” — the district

court’s findings and conclusions of violations of the plain-

tiffs’ rights are entirely justified and supported by the rec-

ord. We do not think, however, that the record in this case

requires or justifies going into all of the concepts on penology

pressed by the plaintiffs and adopted in the district court’s

opinion — the concepts of motility, classification, and idle-

ness — since the shortcomings in these areas are not of

constitutional dimension. While there may be a point where

abuse in these areas would constitute an actual violation of

the Eighth Amendment guarantee, we hold that in this case

the present record and the findings on these subjects do not

warrant the court’s broad remedial orders (485 F.Supp. at

170) intruding into these areas of prison administration. See

Battle v. Anderson, supra, 564 F.2d at 403; Newman v. Ala-

bama, supra, 559 F.2d at 291-92; Marchesaniv. McCune, 531

F.2d 459, 462 (10th Cir.), cert. denied, 429 U.S. 846.

Thus we conclude that the district court did not apply an

improper constitutional standard here in making its find-

ings on shelter, sanitation, food, personal safety, and medi-

cal care at the Colorado prison.

B. THE SUFFICIENCY OF THE EVIDENCE TO

SUPPORT THE FINDINGS OF EIGHTH AMEND.-

MENT VIOLATIONS

With a few exceptions, the State generally admits that

there was “little conflict in the evidence which was intro-

duced at trial.” Instead its argument is “directed towards

what it feels was a clearly erroneous assimilation of those

facts” by the district court. Brief of Appellant at 25-26, 37.

® We would agree that adequate clothing is also a core area of considera-

tion in an Eighth Amendment claim. However, because it is not an issue

in this case, we need not discuss it.

A-14

Thus it appears the State is mainly arguing that the undis-

puted evidence does not support the court’s ultimate finding

and conclusion that the conditions of confinement at Old

Max violate the Eighth Amendment rights of the inmates.

See generally XLV R. 106-07.

After extensive hearings and a personal inspection of the

prison, the district court made detailed findings of fact in the

core areas which we have mentioned. Such findings by the

trial judge who heard and saw the evidence may not be set

aside on appeal unless they are clearly erroneous. See e.g.,

Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571

F.2d 1144, 1148-49 (10th Cir.), cert. denied, 439 U.S. 862

(1978); Battle v. Anderson, supra, 564 F.2d at 400; F.R.Civ.P.

52(a).° The resolution of conflicts in the evidence and the

appraisal of credibility of witnesses are for the trial court

hearing a case without a jury. See Rasmussen Drilling, Inc. v.

Kerr-McGee Nuclear Corp., supra, 571 F.2d at 1149. Guided

by these principles we will consider the findings in detail.

1, SHELTER AND SANITATION

The district court made a general finding that the in-

mates of Old Max “are housed under conditions which fall

below all recognized constitutional and professional

standards.”’® 485 F. Supp. at 133. Specifically it found inter

* In applying Rule 52 the Supreme Court has said that

A finding is “clearly erroneous” when although there is evi-

dence to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has been

committed.

United States v. United States Gypsum Co., 333 U.S. 364, 395.

'° The appellants point out that professional standards “establish goals

and simply do not establish constitutional minima.” Reply Brief of

Appellant at 11, quoting Bell v. Wolfish, 441 U.S. 520, 544. While we

agree that a variance from state standards or from standards prom-

ulgated by certain professional organizations does not establish a per se

constitutional violation, it is a factor to be considered in determining

whether contemporary standards of decency have been met. See, e.g.,

Estelle v.Gamble, 429 U.S. 97, 103-04 & n. 8: Smith v. Sullivan, 611 F.2d

1039, 1045 (5th Cir.); Burks v. Walsh, 461 F. Supp. 454, 483 (W.D. Mo.):

Palmigiano v. Garrahy, 443 F. Supp. 956, 961 n. 2, 979-80 n. 30(D.R.L);

see generally Battle v. Anderson, supra, 564 F.2d at 395.

A-15

alia that “|t|he main living areas of Old Max are unfit for

human habitation”; that most of the cells in which inmates

are confined provide for barely one-half the square footage of

space required by modern correctional standards; and that

“leJnvironmentally Old Max is inadequate to meet the

health and safety needs of prisoners in the correctional sys-

tem.” Jd. at 134. With respect to the “physical environment,”

the court found that the “conditions are grossly inadequate

and constitutionally impermissible.” Jd. at 155.

The State argues that much of the court’s criticism of

Old Max is directed at the prison’s design, which it admits “is

a vestige of the past and is not consistent with modern

penology.” Brief of Appellant at 48. The “salient point”

according to the State “is that long before this suit was filed,

the state had begun to build a ‘state of the art’ prison which

will not have the deficiencies of the present Auburn pris-

ons.” Id. It argues that since the designing of Auburn style

prisons was stopped in the late 1960’s, and the constitu-

tionality of using certain cells at Old Max was upheld by this

court in 1975, “its beginning to plan a new prison in 1976 is

overwhelming evidence that it is keeping pace with evolving

standards of decency that mark a maturing society.”!' Jd. at

50. The State also says that since “the length of confinement

must be considered” in determining whether constitutional

standards have been violated, the trial court’s failure to

recognize that Old Max will soon be closed voluntarily con-

stitutes reversible error. /d. Finally, with respect to sanita-

tion, the State argues that “the totality of circumstances in

sanitation cannot be held to be unconstitutional” because

the evidence clearly shows that sanitation “has improved

greatly over the last few years”; that cleaning activity has

increased significantly under the directorship of defendant

Ricketts; and that many of the sanitation problems at Old

Max are a direct result of the inmates’ absolute refusal to

help keep the prison clean. Jd. at 56-57.

'! Although construction of a new prison should be considered in devising

an appropriate remedy, see Part VII, infra, we must agree with the

district court that it is not a defense to demonstrated present constitu-

tional violations. See 485 F. Supp. at 167-68; see also Battle v. Anderson,

supra, 564 F.2d at 403.

A-16

In response, plaintiffs argue that “the undisputed find-

ings establish that the physical conditions of confinement at

Old Max are ‘grossly inadequate’ ”; that the construction of

new prison facilities which will be completed in the future is

not a defense to present unconstitutional conditions of con-

finement; and that there is no record evidence which supports

the State’s claim that Old Max will be closed voluntarily or

permanently. Answer Brief of Appellees at 46-49, 55-59.

In Battle v. Anderson, supra, we upheld the district

court’s conclusion that “[ilt is incumbent on the incarcerat-

ing body to provide the individual with a healthy habilita-

tive environment.” 564 F.2d at 395. In affirming in Battle,

we upheld the finding that 60 square feet of living space was

the minimum amount of square footage which the Eighth

and Fourteenth Amendments require that a state provide an

inmate. Jd. at 395, 397, 403. A necessary corollary to this

ruling is that a state must provide within such living space

reasonably adequate ventilation, sanitation, bedding,

hygienic materials, and utilities (i.e., hot and cold water,

light, heat, plumbing). Jd. at 394-95, 403; see also Bono v.

Saxbe, 620 F.2d 609, 613 (7th Cir.); Hite v. Leeke, 564 F.2d

670, 674 (4th Cir.); Palmigiano v. Garrahy, supra, 443 F.

Supp. at 979; Laaman v. Helgemoe, 437 F.Supp. 269, 308-09,

323 (D.N.H.). In short, a state must provide an inmate with

shelter which does not cause his degeneration or threaten

his mental and physical well being. Battle v. Anderson,

supra, 564 F.2d at 403.

Considering the record in light of this standard, the

evidence showed these facts. Old Max came into existence as

a territorial prison in the late 1860’s before Colorado became

a state. The physical facility as it exists now “dates from

1895, with numerous additions, the most recent in 1971.” II

App. Exh. 26; I App. Tes. 15-17. Approximately 1000 in-

mates are housed in five cellhouses within the walls of the

institution and one cellhouse outside the prison walls. I App.

Tes. 16-17; IV App. Tes. 114; Brief of Appellant at 39.

Most of the prison population is housed in three cell-

houses — 1, 3 and 7. Cellhouse 1, built in 1948, contains

approximately 360 inmates who are assigned single cells

A-17

which are 35 square feet in size, with net usable space of

about 14 square feet. I App. Tes. 43-44; II App. Exh. 97; V R.

849. Cellhouse 3, built in 1951, contains approximately 86

prisoners i, protective custody, administrative segregation,

punitive segregation, or deathrow. Inmates in cellhouse 3

are not considered members of the general prison population

since they are locked in their ceils an average of 23 hours a

day. I App. Tes. 19. These cells do not provide the inmate the

60 square feet of space required in Battle.'* Cellhouse 7 was

built in 1938 and is structurally similar to cellhouse 1.'° It

houses approximately 390 inmates who are either in protec-

tive custody or administrative segregation, or who are clas-

sified as transitional workers (i.e. inmates without jobs).

Cellhouse 7 has 326 cells of 31.5 square feet and 64 cells,

used for administrative segregation, of approximately 62

square feet. I App. Tes. 30; II App. Exh. 165-66; V R. 862;

XXIII R. 11; XXIX R. 50.

The remainder of the prison population is housed in

cellhouses 4 and 5 and the Diagnostic Unit. Cellhouse 4,

built in the 1930’s, is located outside the prison walls and

once was used as the women’s prison. The cells are about 40

square feet. I App. Tes. 17, 44-45. Cellhouse 5 is located

under the prison infirmary and houses about 20 trustee

inmates.'* Jd. at 17. The Diagnostic Unit cellhouse is a

!2 Appellants admit “that most of the cells in cellhouses 1 and 7 do not

provide the sixty square feet per inmate required by Battle... .” Brief

of Appellant at 52. There is some indication in the record that the cells

in cellhouse 3 are smaller than those in cellhouses 1 and 7. See I App.

Tes. 392-93. However the record, the appellate briefs, and the district

court’s opinion do not reveal the exact size of the cells in cellhouse 3.

However, the district court did find that these cells in cellhouse 3 failed

to meet the Battle standard, see 485 F.Supp. at 134, and the defendants

do not contest this finding.

'3 In 1975, cellhouse 7 was closed and plans were made to tear it down.

However, after the prison riot in May 1975, it was reopened to relieve

overcrowded condition of cellhouse 1. Brief of Appellant at 41; | App.

Tes. 31; 485 F.Supp. at 134.

'* The record does not reflect the size of the cells in cellhouse 5. Appellant

claims that cellhouse 5 houses approximately 40 prisoners who live “in

cubicles, not cells, which surround a central common area.” Brief of

Appellant at 40.

.

a

.

A-18

three-tier unit which was built in 1962 and currently houses

120 inmates. The cells in this unit are approximately 49

square feet. I App. Tes. 45-46, 369; III App. Tes. 110. Thus we

note that there is a widespread deficiency in living space

under the Battle standard.

Aside from the deficiency in cell size, the buildings

where inmates live are in a serious state of disrepair and fail

to meet minimal health and safety needs of the prisoners.

For example, the roofs in the major cellhouses and the prison

auditorium leak, despite repair work. See I App. Tes. 27, 392,

395, 398; III App. Tes. 131-32; II App. Exh. 130-32, 144-45.

Existing heating and ventilation systems are incapable of

providing adequate temperature control and ventilation in

the cellhouses and in some work buildings used by the in-

mates. See III App. Tes. 102-03, 128-46; 189, 191; II App.

Exh. 130-32, 143-50, 158, 162-66, 196-97, 200.

Inadequate ventilation, especially in the cells and show-

er areas, results in excessive odors, heat, and humidity with

the effect of creating stagnant air as well as excessive mold

and fungus growth, thereby facilitating personal discomfort

along with health and sanitation problems. See II App. Exh.

158, 162-67. Leaking pipes and defective plumbing cause

sewage to accumulate in cells and service areas or to drain

into adjacent or lower cells, resulting in innumerable health

and safety problems which, when combined with the temper-

ature control and ventilation problems, make the main liv-

ing areas particularly unfit for human habitation. See I App.

Tes. 29, 42, 44, 85; II App. Exh. 11-13, 26, 131-51: III App.

Tes. 131-47, 215; IV App. Tes. 116-17; XX XIII R. 83-85, 106.

In addition, the evidence also shows an extensive prob-

lem with rodent and insect infestation in the cellhouses. See

I App. Tes. 27, 191-92; II App. Exh. 145, 147, 163, II App.

Tes. 109-10, 128-46, 195-96. Trash, decayed food, and other

material routinely litter the cells and corridors of the cell-

houses, conditions which are partially the product of the

inmates’ own actions. See, I App. Tes. 27-28, 196: II App.

Exh. 131-45, 162, 167, III App. Tes. 137-38. Nevertheless.

many of the health and sanitation deficiencies, were found to

be “the result of a lack of routine maintenance and cleaning

programs.” 485 F.Supp. at 136. Bath water in the shower

A-19

areas remains impounded on the floors due to obstructed

drains. Missing ceramic floor tiles make shower room floors

exceptionally difficult to clean and provide areas for signifi-

cant mold and slime buildup. Metal stubs sticking up

through the floor along with exposed electrical wiring pro-

vide additional health hazards to inmates using the shower

facilities. See I App. Tes. 203; II App. Exh. 130-32, 144,

148-52, III App. Tes. 107-09, 125-26, 143, 147, 195. These

deficiencies could be corrected by routine maintenance and

cleaning prgrams. See II App. Exh. 130-32, 162-68.

The health and sanitation problems extend beyond the

common-use areas and into the individual cells. The evi-

dence shows that in some instances inmates are not provided

with enough cleaning supplies to allow them to adequately

clean their own cells. See I App. Tes. 19”; III App. Tes. 18,

125-27, 197. Numerous broken windows and the lack of

window screens contribute significantly to the fly infesta-

tion problem. See id. at 128. The bedding used by inmates is

heavily stained and soiled, and is not cleaned or changed

when a new inmate is assigned to a cell. See id. at 105-07,

131, 139; [Il App. Exh. 144, 152; 1 App. Tes. 196. These items

could also be corrected by routine maintenance and cleaning

programs. See II App. Exh. 162-68.

Without doubt, the State’s inability to meet minimal

shelter and sanitation standards contributes immeasurably

in making the main living areas unfit for human habitation.

III App. Tes. 215. Unquestionably, the small cells in which

inmates are confined, along with the deteriorating and un-

sanitary conditions in the main living areas, have a direct

detrimental impact on the health and well being of the

inmates. Considering the record as a whole we must sustain

the trial court’s findings and conclusion that the conditions

in which inmates are confined at Old Max are “grossly in-

adequate and constitutionally impermissible.”

2. FOOD

The district court found that the “[clonditions in the food

services areas. . . fail to meet any known public health stan-

dards”; the kitchen facilities and equipment are obsolete and

unsanitary; state health code violations persist, after nu-

A-20

merous inspections; most of the deficiencies are “caused by a

lack of routine maintenance, operational and cleaning pro-

cedures”; these deficiencies “have long been serious prob-

lems”; and the “unsanitary conditions have a direct impact on

the health of the inmate population.” 485 F. Supp. at 136,

155. The court concluded that these “conditions are grossly

inadequate and constitutionally impermissible.” Jd. at 155.'°

The state recognizes that the court’s findings concern-

ing the sanitation in the kitchen areas are “extremely se-

rious.” However, it argues that the court “pieced together

various facts and failed to accurately reflect the totality of

conditions” at Old Max. Brief of Appellant at 53-54. More-

over, because this is “the one area in which the defendant’s

evidence significantly conflicted with the plaintiffs evi-

dence,” the State complains that the court failed to note

favorable testimony from a defense witness concerning the

kitchen facility, despite the court’s conclusion that all state

witnesses were credible. Jd. at 52, 54. Finally, although it

does not deny the health code violations, the State objects to

the district court’s use of state health department standards

in determining whether the conditions in the food service

area violate constitutional standards. Jd. at 55-56.

As we noted earlier, the State must provide an inmate

with a “healthy habilitative environment.” This includes

providing nutritionally adequate food that is prepared and

served under conditions which do not present an immediate

danger to the health and well being of the inmates who

consume it. See, e.g., Palmigiano v. Garrahy, supra, 443 F.

Supp. at 962, 979; Laaman v. Helgemoe, supra, 437 F. Supp.

at 309, 323; Pugh v. Locke, 406 F. Supp. 318, 329 (M.D. Ala),

affd as modified sub nom., Newman v. Alabama, 559 F.2d

283, 288 (5th Cir.), rev'd in part sub nom., Alabama v. Pugh,

438 U.S. 781, cert. denied, Newman v. Alabama, 438 U.S.

915; see also Campbell v. McGruder, supra, 580 F.2d at 548,

Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854,

862 (4th Cir.). Moreover the state health code, while not

establishing “constitutional minima,” is relevant in making

a finding regarding the constitutionality of existing condi-

tions. See note 10 supra; see also Williams v. Edwards, 547

F.2d 1206, 1214 (5th Cir.).

'° There is no claim here that the food being served to the inmates is

nutritionally inadequate.

A-21

Here conditions in the main food service areas are sub-

stantially similar to the unsanitary conditions which exist

in the main living areas. The physical plant itself is old,

outdated, and poorly maintained. Kitchen equipment is in a

state of disrepair. The dishwasher in the main kitchen leaks

water all over the floor, creating a safety hazard for those

working in the kitchen area. Floor drains barely function

and standing pools of water are common. Rotting food re-

mains on floors which are not readily cleanable due to their

deteriorated condition. Ventilation throughout the main

kitchen is inadequate and high temperatures are common.

In addition, sanitation deficiencies are compounded by a

highly irregular and ineffective cleaning program. The

floors, walls, windows, and food storage shelves throughout

the food service area are soiled with dirt and rodent drop-

pings. The walls of the walk-in coolers where food is stored

have mold growing on them. Floor fans used to circulate the

air cause dust and lint to be blown over the food preparation

and dishwashing areas. Rodent and insect infestation is

extensive.

Inmate workers are not given basic instruction on food

protection and food service sanitation.'° Consequently food

items are stored on the floors of walk-in storage compart-

ments and food is often left uncovered allowing the rodents

and roaches to contaminate it. Food products which can

support food borne diseases are not properly stored and are

often left out at room temperature. Food preparation sur-

faces and cooking equipment are not properly cleaned and

therefore provide areas for significant bacterial growth.

Food, when it is being served to inmates, is kept at substan-

dard temperatures due to the improper use of the available

equipment. See III App. Tes. 98-102, 110-125, 209; II App.

Exh. 283-88.

After inspecting such conditions the Colorado Depart-

ment of Health itself found that “[s]ubstantial deficiencies

exist in the food service facilities” at Old Max. As of July 17,

1979, that state agency refused to issue a Certificate of In-

spection for the food service facilities since they were not “in

'6 III App. Tes. 119.

A-22

substantial compliance with the ‘Rules and Regulations

Governing the Sanitation of Food Service Establishments in

the State of Colorado.’” II App. Exh. 255, 291. It was the

conclusion of Mr. Gordon, an expert in the field of environ-

mental health, sanitation, and safety,’ that “the food service

[at Old Max/ represents imminent danger to the health and

well-being of the inmates consuming food in that operation.”

XXIX R. 35 (emphasis added); see also III App. Tes. at 94,

199-200, 205-06, 215.

Considering all the evidence, we conclude that the rec-

ord amply supports the district court’s findings and conclu-

sions that the conditions in the food service areas at Old Max

are unsanitary and have a substantial and immediate detri-

mental impact upon the health of the inmate population. We

must uphold the court’s findings and conclusions that the

conditions in the food service areas at Old Max “are grossly

inadequate and constitutionally impermissible.”

3. PERSONAL SAFETY

The district court found that the inmates and correc-

tional staff at Old Max have lived in an atmosphere of ten-

sion, anxiety and fear, resulting in an unsafe environment

for both; that the institution “is still fraught with tension

and violence”; and that “(t]he design and staffing of all the

major housing units contribute immeasurably to violence

between inmates, often leading to severe injury and death.”

485 F. Supp. at 140-42. It also found that the conditions of

confinement, one of which was the lack of physical safety for

inmates, “evidenced. ..deliberate indifference to the pris-

oners’ protected interests.” Jd at 153-54 n. 20. The court

concluded that the lack of safety deprived prisoners of their

constitutional right to be reasonably protected from con-

stant threats of violence and sexual assault from other in-

mates. Jd. at 155-56.

7 In the District of Columbia, Mr. Gordon was serving by appointment of

the Mayor as Program Manager for a special task force on inspection of

city-wide, community-based residential facilities. Previously he was

Chief of the Institutional Hygiene Division of the District of Columbia

Environmental Health Administration. XXIX R. 2-3.

A-23

The State claims that the district court has distorted the

facts and has “patched together various portions of the rec-

ord under the guise of making a finding of the totality of

conditions” at Old Max; that it “has failed to distinguish

between the prison’s history of violence and the conditions

which existed in October 1979”; that the level of violence at

Old Max has been “significantly reduced” in recent years;

that the reference to suicides and self-mutilatory gestures is

improper since a state has no duty to keep an inmate from

hurting himself; and that reliance upon the number of in-

mates in protective custody to show that fear and violence

exists at Old Max is misplaced since Old Max houses protec-

tive custody cases from other prisons in the state system.

Brief of Appellant at 57-64. The State further says that the

current staffing levels at Old Max are based on the needs of

the new prison which is currently being built and that the

district court’s finding that inadequate staffing at Old Max

contributes to inmate violence is inconsistent with its find-

ing that the prison’s physical design makes it impossible to

provide adequate security. Jd. at 58. Finally, the State

argues that the district court has misconstrued the law con-

cerning a prisoner’s right to safety and that the plaintiff

class has failed to show that the State has acted with deliber-

ate indifference toward their safety. Jd. at 62-64.

As we noted in Marchesani v. McCune, 531 F.2d 459, 462

(10th Cir.), cert. denied, 429 U.S. 846, a “[p|rison setting is,

at best, tense. It is sometimes explosive, and always poten-

tially dangerous.” Nevertheless, as the State concedes, an

inmate does have a right to be reasonably protected from

constant threats of violence and sexual assaults from other

inmates. Brief of Appellant at 62. See Clappier v. Flynn, 605

F.2d 519 (10th Cir.); Hite v. Leeke, 564 F.2d 670, 673 (4th

Cir.); Finney v. Arkansas Bd. of Correction, 505 F.2d 194,

201 (8th Cir.). Moreover, he does not need to wait until he is

actually assaulted before obtaining relief. See Woodhous v.

Virginia, 487 F.2d 889, 890 (4th Cir.).

Here the evidence shows that in recent years the inmate

population at Old Max has been plagued with violence and

the fear of violence. See II App. Exh. 109; XX XVII R. 55-58,

61-64; and Brief of Appellant at 6-7. In May 1975 a major riot

occurred at Old Max. In August 1976 the Governor of Colo-

A-24

rado ordered prison officials to conduct a massive lockup of

the total prison population to help reduce the violence and

other criminal activity which was occurring inside the pris-

on walls. See I App. Exh. 97, 108; XX XVII R. 66. In 1977 a

special project team investigated Colorado’s correctional

system and concluded “that an environment of tension, anxi-

ety, and fear exists for both inmates and correctional staff’

at Old Max. II App. Exh. 15, 25. InJune 1978 an interagency

crisis committee, investigating attempted suicides in cell-

house 3, concluded that under the current conditions and

staffing patterns, security could not be maintained in that

cellhouse. Jd. at 114.

The violence and fear which permeated the prison

population of Old Max in past years continues to exist. The

efforts of many inmates are directed at merely staying alive

while they serve their sentences. IV App. Tes. 118. Protec-

tive custody inmates are routinely threatened and attacked

by other inmates. See XXVII R. 121-24; XXXVII R. 84; I

App. Tes. 39. Prison records for 1978 and part of 1979 show a

significant number of stabbings, assaults, fights, and

threats. See II App. Exh. 227-47; I App. Tes. 79-87, 429-31; II

App. Tes. 188-90. Undoubtedly many more incidents go un-

reported. See I App. Tes. 79, 429; II App. Tes. 189.

The evidence indicates that the architecture of the cell-

houses and the physical layout of buildings and other struc-

tures contribute to the violence and illegal activity bet ween

inmates. II App. Exh. 12, 26, 89-90, 97-100, 105-06, 110; IV

App. Tes. 117; XXXIII R. 52-61; XXXVII R. 185. The

architecture of cellhouses 1 and 7, which was designed for a

less mobile prison population, does not provide adequate

visibility for guards to properly monitor from secure vantage

points inmate movement within the cellhouse. See I App.

Tes. 42-44, 389-90; II App. Exh. 97; XXXIII R. 58-61. The

internal structure of the cellhouses along with the random

construction of the buildings, walls, and fences within the

perimeter of the prison provide numerous “blind areas”

where violence, threats, and other illegal activities can

occur without detection by prison officials. See, XXVII R.

95-97; I App. Tes. 42-43, 85-86, 431; IV App. Tes. 72, 113; II

App. Exh. 89-90; XXXIII R. 52-61.

A-25

Violence and illegal activity between inmates at Old

Max is further facilitated by the inadequacy of the staffing

levels. Past investigations by the State revealed that staff-

ing levels at Old Max were insufficient to provide adequate

security for inmates and staff and that the lack of adequate

supervision and surveillance of inmates contributes signifi-

cantly to violence and other illegal activity. See II App. Exh.

12, 89-90, 97-100, 105-07, 111, 114. Despite the reports

which highlighted the need for increased staffing at Old

Max, the Colorado Department of Corrections actually de-

creased its security staff in fiscal year 1978-79. See IV App.

Tes. 131. The expert witnesses, including the former execu-

tive director of the Department of Corrections, overwhelm-

ingly concluded that current staffing levels at Old Max con-

tinue to be inadequate and cannot provide a reasonably safe

environment for inmates.'® See I App. Tes. 20-44.

Although a larger security staff would not completely

obviate the inmate safety problem the evidence shows that

additional security personnel could significantly reduce it.!”

E.g., 1 App. Tes. 21-22, 76-78; II App. Exh. 12. We are con-

vinced that the record amply supports the finding that the

State has been “deliberately indifferent” to the legitimate

'® The district court did note that “violence at Old Max has been signifi-

cantly reduced, [but that] the threat of occurrence is omnipresent.” 485

F. Supp. at 155-56. Since violence has been “significantly reduced,”

appellants argue that “it cannot be said that the level of violence at the

institution violates the plaintiffs’ constitutional rights.” Brief of Appel-

lant at 62,64. We disagree. Merely because the current level of violence

and illegal activity is statistically lower than in past years does not

mean that the present situation meets minimum constitutional stan-

dards. See Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 201 (8th

Cir.); Holt v. Sarver, 309 F. Supp. 362, 377 (E.D. Ark.), aff'd, 442 F.2d

304 (8th Cir.).

‘9 If the appellants are suggesting, by their reference to their proposed

1981 budget, that they lack sufficient funds to increase the security

staff at Old Max, we must reject their argument. The lack of funding is

no excuse for depriving inmates of their constitutional rights. See

Smith v. Sullivan, 611 F.2d 1039, 1043-44 (5th Cir.); Campbell v.

McGruder, 580 F.2d 521, 540(D.C. Cir.); Battle v. Anderson, supra, 564

F.2d at 395-96, 400; Palmigiano v. Garrahy, 443 F. Supp. 956, 979

(D.R.I.) and cases cited therein.

A-26

safety needs of the inmates confined at Old Max.”° See Pal-

migiano v. Garrahy, supra, 443 F. Supp. at 973, 980; see also

Litile v. Walker, 552 F.2d 193, 197-98 n.8 (7th Cir.), cert.

denied, 435 U.S. 932. Accordingly we must uphold the

court’s finding and conclusion that the State has failed to

reasonably protect inmates from constant threats of violence

and assaults from other inmates and that this failure

violates the inmates’ constitutional rights under the Eighth

Amendment.

4. HEALTH CARE

The district court found that “the blatant inadequacy of

health care is perhaps the most appalling” of all the prob-

lems at Old Max and that the State has “been aware of grave

and systemic deficiencies in the medical care delivery sys-

tem at Old Max for years.” 485 F. Supp. at 142, 158. It

concluded that:

The failures of Old Max extend across the board

from inadequate staff and resources to insufficient

transportation arrangements to lack of training and

qualification of the limited staff that does exist. The

problem is not simply a matter of isolated incidents of

alleged negligence or difference of opinion. It is a mat-

ter of such large scale failure as to evidence deliberate

indifference to serious health needs.

Id. at 158.

The State argues that the district court “misconstrued

the applicable law and failed to accurately reflect the evi-

dence in the record.” Brief of Appellants at 82, 117; Reply

Brief of Appellants at 11-13. With respect to the medical care

which is provided to inmates at Old Max, the State admits

that deficiencies existed prior to 1977. However, it says that

the “[{hJealth care provisions at. . .{Old Max] must be seen in

20 Appellees claim that the “deliberate indifference” standard is applic-

able only in §1983 damage actions against specific prison staff mem-

bers. Brief of Appellee at 73-74. While it appears that a showing of

deliberate indifference is not a prerequisite to obtaining the injunctive

and declaratory relief sought here, see Withers v. Levine, 449 F. Supp.

473, 479 (D.Md.), aff'd, 615 F.2d 158, 162 (4th Cir.), petition for cert.

pending, No. 79-6535 (May 5, 1980), we need not reach this issue since

the record here supports the finding of deliberate indifference.

A-27

acontinuum”; that the general standard of care provided has

been upgraded consistently and that the evidence shows

that “|t]he medical facilities, equipment, and staff. . .|are|

sufficient to deliver adequate medical care to the prison

population.” Brief of Appellants at 104, 115. The State furth-

er claims that the record does not show “deliberate indiffer-

ence” by prison officials to inmates’ medical needs and that

the trial court’s conclusion concerning the inadequacy of

medical care at Old Max is based on “isolated instances” of

inadequate or improper medical care. /d. at 99-100.

With respect to mental health care, the State relies on

Bowring v. Godwin, 551 F.2d 44 (4th Cir.) and maintains

that the evidence shows that out of the entire prison popula-

tion only 15 inmates were identified as being “seriously

mentally ill.” According to the State, the evidence did not

show “that action by health care personnel could have made

any appreciable difference in the condition of these [15]

inmates.” Furthermore, the evidence also failed to show that

prison officials were deliberately indifferent to “inmates’

serious psychological/psychiatric needs.” Brief of Appellants

at 107-09. Consequently the State argues that the court

erroneously concluded that inmates at Old Max received

constitutionally inadequate health care from the State.

As the State admits, it has a constitutional obligation

“to provide medical care for those whom it is punishing by

incarceration.” Estelle v. Gamble, 429 U.S. 97, 103; Brief of

Appellants at 97. We are convinced that this duty necessari-

ly requires that the State “make available to inmates a level

of medical care which is reasonably designed to meet the

routine and emergency health care needs of inmates.” Battle

v. Anderson, 376 F. Supp. 402, 424 (E.D. Okla.); accord,

Laaman v. Helgemoe, supra, 437 F. Supp. at 312. This in-

cludes medical treatment for inmates’ physical ills, dental

care, see, e.g., id. at 313, and psychological or psychiatric

care, see, e.g., Inmates of Allegheny Cty. Jail v. Pierce, 612

F.2d 754, 763 (3rd Cir.), on remand, 487 F. Supp. 638, 643

(W.D. Pa.); Bowring v. Godwin, supra, 551 F.2d at 47.

Although the constitutional standard for adequate

health care has not been fully spelled out, the Supreme

Court has held in the context of a §1983 action for damages

A-28

and injunctive relief that only “deliberate indifference to

serious medical needs” of prisoners violates the Eighth

Amendment proscription against cruel and unusual punish-

ment. Estelle v. Gamble, supra, 429 U.S. at 106; see also

Twyman v. Crisp, 584 F.2d 352, 355 (10th Cir.). Consequent-

ly, accidental or inadvertent failure to provide adequate

medical care, or negligent diagnosis or treatment of a medi-

cal condition do not constitute a medical wrong under the

Eighth Amendment. See Estelie v. Gamble, supra, 429 U.S.

at 105-06. A fortiori, a mere difference of opinion between

the prison’s medical staff and the inmate as to the diagnosis

or treatment which the inmate receives does not support a

claim of cruel and unusual punishment. See, e.g., Bowring v.

Godwin, supra, 551 F.2d at 48; Smart v. Villar, 547 F.2d 112,

114 (10th Cir.).

The two-pronged Estelle standard “requires deliberate

indifference on the part of prison officials and it requires

the prisoner’s medical needs to be serious.” West v. Keve, 571

F.2d 158, 161 (3d Cir.). A medical need is serious if it is “one

that has been diagnosed by a physician as mandating treat-

ment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.” Laa-

man v. Helgemoe, supra, 437 F. Supp. at 311; See also West v.

Keve, supra, 571 F.2d at 162-63 n.6. Deliberate indifference

to serious medical needs is shown when prison officials have

prevented an inmate from receiving recommended treat-

ment or when an inmate is denied access to medical person-

nel capable of evaluating the need for treatment. See, e.g.,

Inmates of Allegheny Cty. Jail v. Pierce, supra, 612 F.2d at

762; Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.). In class

actions challenging the entire system of health care, deliber-

ate indifference to inmates’ health needs may be shown by

proving repeated examples of negligent acts which disclose a

pattern of conduct by the prison medical staff, see id. at 52, or

by proving there are such systemic and gross deficiencies in

staffing, facilities, equipment, or procedures that the inmate

population is effectively denied access to adequate medical

care. See, e.g., Inmates of Allegheny Cty. Jail v. Pierce, supra,

612 F.2d at 762-63; Todaro v. Ward, supra, 565 F.2d at 52;

Williams v. Edwards, supra, 547 F.2d at 1215; Palmigiano v.

Garrahy, supra, 443 F. Supp. at 983-84; Laaman v. Helge-

moe, supra, 437 F. Supp. at 312-13; Battle v. Anderson, sup-

ra, 376 F. Supp. at 424. Much of the evidence presented at

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trial is relevant to this last standard of “deliberate indiffer-

ence.”

The record shows that the medical staff at the infirmary

in Old Max is responsible for providing medical services for

all the prison facilities in the Canon City area, including the

maximum security prison, the medium security prison, and

the women’s prison — a total inmate population of approx-

imately 1,400. XXV R. 82-83; XXXVIII R. 5, 100-01. In

addition, the medical staff is responsible for the initial

medical and dental screening of all new prisoners entering

the Colorado prison system — approximately 1,350 inmates

in 1978. XXXVIII R. 101, 114.

Despite the large number of prisoners who depend on

the Old Max staff for medical services, the State provides

less than 10 hours per week of on-site primary physician

coverage. Expert witnesses agreed that a minimum of 40

hours per week of on-site primary care physician coverage is

needed for the Maximum Security Prison (Old Max) to meet

minimally acceptable standards of health care. See XXV R.

80-84, 90-92, 201; XX XVIII R. 75, 78-79, 101-02; Brief of

Appellants at 85. One expert indicated that “primary care

physician on-site coverage” is the “most important aspect of

the medical care services at the facility” and that 10 hours

per week is “grossly inadequate.” XXV R. 90 (emphasis

added); see also I App. Tes. 238; XXV R. 96; XXXVIII R.

74-75. Expert witnesses uniformly agreed that a four-fold

increase in primary physician coverage was necessary,

along with additional on-site coverage from specialists. See

XXV R. 92, 126-27, 200-02, 213; XXXVIII R. 74-78. The

State’s expert admitted that in order to meet minimally

acceptable standards of health care, there must be at least 4

hours per week of on-site coverage from a general internist

and a general surgeon, and 4 hours of on-site coverage every

other week from an ear, nose, and throat specialist and an

orthopedic surgeon. See XX XVIII R. 76, 79; see also XXV R.

126-27, 201. At the time of trial this specialist coverage was

not provided.”

“1 The record does show that a certified radiologist comes to Old Max two

days a week to perform diagnostic X-ray procedures and an optometrist

comes once a week to perform optical examinations and prescribe glass-

es for inmates. XXXVIII R. 28-29, 44-45, 80-81.

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Experts from both sides agreed that because of the

inadequacy of on-site primary physician coverage, other

medical personnel are being used as “physician substitutes”

and are being forced to make decisions and perform services

for which they are neither trained nor qualified. XXV R.

90-98, 113-14, 127; XXXVIII R. 75; see also XXI R. 129.

Experts agreed that the current practice of leaving “stand-

ing orders” — a system where the physician leaves instruc-

tions for handling a number of medical situations which may

arise — could be “dangerous” and cannot substitute for

adequate on-site physician coverage. XXV R. 172-74; Brief

of Appellants at 86. One expert described a number of “typi-

cal” incidents where inadequately supervised medical staff

have misdiagnosed or improperly treated inmates’ medical

conditions and have on occasion caused potentially life-

threatening situations along with needless pain and suffer-

ing. XXV R. 99-125; see also I App. Tes. 234, 270-73.

Prisoners generally have more extensive dental prob-

lems than the average citizen. Consequently dental care is

one of the most important medical needs of inmates. XXV R.

133; XXXVIII R. 85, 113. In August 1978 the Old Max

infirmary provided only 12 hours per week of on-site dental

care by a licensed dentist. XX XVIII R. 35, 116. Prior to trial

only 28 hours per week of on-site dental care was available

at the Old Max infirmary — a level of coverage which ex-

perts agreed was inadequate to meet the needs of the prison

population at Old Max. XXV R. 134, 182; XX XVIII R. 84-85.

During the trial, the State increased the on-site dental care

coverage at the Old Max infirmary to 40 hours per week

which, according to the State’s expert witness, is sufficient

for an inmate population of 800 to 1,000. XXXVIII R. 35,

84-85. However, since the medical staff at Old Max is re-

sponsible for providing dental care for a prison population of

approximately 1,400, along with screening a large number

of new prisoners, dental care coverage remains inadequate

to meet the needs of Old Max inmates. See XX XVIII R. 35,

113-117; see also II App. Exh. 8. This conclusion is further

supported by evidence which shows that as of July 1979,

inmates needing oral surgery had to wait an inordinant

amount of time before receiving proper care and that these

inmates when not treated in a timely fashion are prone to

develop infections and abscesses leading to continued and

unnecessary pain and loss of teeth. XXV R. 135.

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In addition to the physicians and dentists, the medical

staff at the Old Max infirmary includes three Physician’s

Assistants (PA’s), three Registered Nurses (RN’s), one

licensed practical nurse (LPN) and one nurse practioner.

XXV R. 89, 136, 170; XX XVIII R. 39-40, 44, 109. Although

the infirmary is open 24 hours a day, seven days a week, PA’s

are scheduled only five days a week. However, at least one

PA is “on call” during the hours when there are none in the

infirmary. Jd. at 41-44. Expert testimony indicated that

there is a “definite need” for several more PA’s. XXV R. 90;

see also XXXI R. 142-43. The evidence also indicates that

there is no Registered Nurse working the late night shift,

notwithstanding a jtate health department regulation re-

quiring that an RN be on duty 24 hours a day. XXV R.

136-38; XX XVIII R. 109; II App. Exh. 5; Brief of Appellant at

86.

While there was some dispute by the experts as to the

proper scope of medical services which should be provided by

the staff at the infirmary, it is clear from the evidence that in

order to meet the needs of inmates the medical staff must

currently rely on medical services provided by civilian

health care facilities. See XXXVIII R. 46-48, 56. Conse-

quently an integral part of the prison health care program is

the transportation of inmates to and from the locations

where the medical care is given. See XXV R. 128-29. At the

time of trial the medical department at Old Max did not have

any security staff or vehicles assigned to it solely for the

purpose of transporting inmates to health facilities. The one

prison vehicle used for transporting inmates to outside

health facilities is also used for transporting prisoners to

court. The lack of staff and vehicles often results in cancella-

tion of planned medical trips in order to transport inmates to

court. Transportation cancellations result in a serious back-

log of prisoners who are waiting to be sent to outside facili-

ties for needed care. I App. Tes. 254; II App. Exh. 6-7; XXV R.

128-29; XXXVIII R. 48-49, 78, 121, 128-29.

Expert witnesses uniformly recognized that transporta-

tion problems exist which unnecessarily delay the delivery

of health care services to inmates. See I App. Tes. 254; IV

App. Tes. 130; XXV R. 128-33; XXXVIII R. 48-49, 78, 126-

31. One prison official who is directly responsible for health

A-32

care at Old Max testified that the medical department

needed to have its own staff to transport prisoners to the

prison infirmary and the outside health facilities. More im-

portantly, this prison official admitted that the medical staff

has an “essential need” for at least 6 additional officers along

with 2 cars which are used exclusively for transporting pris-

oners to outside medical facilities. See XXXVIII R. 48-49,

130-31.

Undoubtedly because of the lack of civilian staff, the

State has permitted inmates to be used in delivering health

care services to the inmate population. The evidence shows

that inmates are used as lab technicians, dental assistants,

orderlies, X-ray technicians, and as file clerks in the medical

records department. XXV R. 138; XX XVIII 28-30, 33-34, 37,

45-46, 87, 120-23; II App. Exh. 5, 91. Expert testimony indi-

cated that “virtually all” existing standards of health care in

correctional institutions prohibit the use of inmate person-

nel in providing direct health services to other inmates.

XXV R. 139.

Dr. King, attending physician in the Department of

Medicine at the Cook County Hospital in Chicago and Assis-

tant Professor in the Department of Community Health and

Preventive Medicine at Northwestern University, testified

after reviewing the medical services provided at Old Max.

He concluded that: “Given the types of staffing and the types

of other resources such as transportation, certain equipment

deficiencies, I do not believe that they [the defendants/ are

able to provide minimally adequate basic medical care.” XXV

R. 158, 72. (Emphasis added). A State expert concluded that

additional personnel and equipment were necessary to pro-

vide adequate medical care at the Old Max infirmary.

XXXVIII R. 90.

Inadequate staffing also negatively affects the delivery

of reasonable mental health care to those inmates who are

seriously mentally ill. Experts estimated that 5-10% of the

inmates at Old Max are “seriously mentally ill” and that

another 10-25% need treatment although they are not

seriously ill. I App. Tes. 229-31, 245, 373; XXV R. 176; but

see XX XI R. 68. One expert found that there are clearly more

A-33

inmates at Old Max who need psychiatric or psychological

treatment than are receiving it. | App. Tes. 231-32. Another

expert concluded that the “|mlental health service at Old

Max is extremely limited and totally incapable of providing

the mental health care of those who have been identified as

having severe, chronic or acute disorders... .” Il App. Tes.

191; see also I App. Tes. 245-46, 376, 382-83; I] App. Tes. 301.

The lack of adequate mental health services, according to

this expert, contributes to inmate suffering and at times

causes suicide and self-mutilation by inmates. II App. Tes.

209; see also I App. Tes. 233-35, 254-55.

As the State admits, there is no on-site psychiatrist or

licensed Ph.D. psychologist at Old Max to provide daily care

and counselling for inmates. A psychiatrist from the state

reformatory is scheduled to visit Old Max once a month, but

in the year before trial had only come once every two

months. One expert feund that this level of psychiatric

coverage is “ridiculously pathetic” considering the number

of “clearly recognizable seriously ill people” at Old Max. I

App. Tes. 233; see also II App. Tes. 198.

Efforts to obtain further psychiatric coverage have been

frustrated due to the lack of funding. XX XI R. 138-39. In fact

psychiatric coverage has been cut back in order to increase

dental and optometric coverage. XXV R. 112. Experts uni-

formly agreed that for Old Max to have a minimally ade-

quate mental health program it needed at least one full time

psychiatrist. I App. Tes. 255-56; II App. Tes. 192, 196-97.

At the time of trial the regular mental health staff at

Old Max consisted of three civilians and two inmates who do

clerical work. XXXIV R. 80, 116. The clinical staff members

apparently spend more of their time on administrative work

than on the treatment of ill inmates. See XXXI R. 90;

XXXIV R. 80. Once an inmate is placed on a waiting list, it

takes anywhere from 2-5 weeks before he is seen by a mem-

ber of the mental health staff. Jd. at 85. One expert witness

found that the mental health staff is overworked, under-

trained, and underqualified. If App. Tes. 200-09. Both ex-

perts who testified on mental health matters found that the

work by individual staff members was not being competent-

ly handled. I App. Tes. 225-26; II App. Tes. 209.

A-34

Considering the evidence as a whole, we must hold that

the district court was not in error in finding that the medical

and mental health staffs of Old Max are “grossly inadequ-

ate.” Because of the staff shortages inmates are effectively

denied access to diagnosis and treatment by qualified health

care professionals. Such conditions endanger their health

and well being, make unnecessary suffering inevitable, and

evince on the part of the State a deliberate indifference to the

serious health needs of the prison population. Accordingly,

we must uphold the district court’s findings and conclusion

that the State has subjected the plaintiff class to cruel and

unusual punishment in that it has denied them access to

reasonably adequate health care.”

; IV

RESTRICTIONS ON VISITATION

In addition to the Eighth Amendment violations, the

district court found that prison visitation policies “are over-

broad and prevent or impair meaningful visitation without

being necessary to any legitimate penological purpose” and

do not take into consideration individual circumstances. 485

F. Supp. at 162. It was further found that the current restric-

tions on visitation “are an exaggerated and excessive re-

sponse to concerns for prison security.” Jd. The court held

that these policies improperly infringe upon inmates’ fun-

damental rights of association, privacy, and liberty which

are protected by the First, Ninth, and Fourteenth Amend-

ments. Jd. at 150-51, 161-62.”°

The State argues that the court ignored well established

law, erroneously cited professional and other standards to

*2 As noted earlier because of the deep concern of the panel as to this problem,

we did not stay the provisions of the district court’s order pertaining to

health care. Our full review of the case reenforces our concerns on this

medical care question which is of paramount importance.

3 Under the general heading “Access,” the district court held that certain

prison policies concerning visitation, mail, and the law library violated

inmates’ constitutional rights. The issues of restrictions on prisoners’

mail are discussed below in Part V, infra, while the issues of access to

the courts and the prison law library are treated in Part VI, infra.

A-35

establish constitutional minima, and improperly relied on a

line of cases dealing with the sanctity of the family which is

inapplicable in a prison setting. The State says that since

1976 visitation policies have gradually been relaxed, new

policies and regulations enhance the visitation process, all

inmates except those in segregated units are permitted con-

tact visits, and the restrictions presently imposed are consti-

tutional since they “are clearly justified by the legitimate

policies and goals of the correctional system.” Brief of Appel-

lants at 125-29.

When confronted with the question whether inmates

have a constitutional right to receive visits from family and

friends, courts have reached varying results. See, e.g., White

uv. Keller, 438 F. Supp. 110, 114-19 (D. Md), aff'd, 588 F.2d

913 (4th Cir,); Laaman v. Helgemoe, supra, 437 F. Supp. at

320-22 and cases discussed therein. However we need not

decide this basic issue since the district court did not find,

nor is it claimed by the plaintiffs, that prison officials are

denying visitation entirely.

Assuming that such a right exists, the Supreme Court

has made it clear that “lawful incarceration brings about the

necessary withdrawal or limitation of many privileges and

rights, a retraction justified by the considerations under-

lying our penal system.” Pell v. Procunier, 417 U.S 817, 822;

accord, Jones v. North Carolina Prisoners’ Union, 433 U.S.

119, 125; See generally Daughtery v. Harris, 476 F.2d 292

(10th Cir.), cert. denied, 414 U.S. 872. A corollary in the

context of a First Amendment claim “is that a prison inmate

retains those First Amendment rights that are not inconsis-

tent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.”** Pell v.

Procunier, supra, 417 U.S. at 822. We think that the under-

lying principle of this corollary is also applicable to rights

*4 Legitimate penological objectives thus far identified by the Supreme

Court include “the preservation of internal order and discipline, the

maintenance of institutional security against escape or unauthorized

entry, and the rehabilitation of the prisoners.” Procunier v. Martinez,

416 U.S. 396, 404, 412; see also Bell v. Wolfish, 441 U.S. 520, 546-47; Pell

v. Procunier, supra, 417 U.S. at 822-23 (deterrence of crime is an

important function of the corrections system along with rehabilitation

and security).

A-36

which are guaranteed by other constitutional provisions. See

Bell v. Wolfish, supra, 441 U.S. at 544-48, 554; Jones v. North

Carolina Prisoners’ Union, supra, 433 U.S. at 125, 129.

When an institutional restriction infringes on a specific

constitutional right, the prison policy must be evaluated in

light of the legitimate objectives of penal administration —

security, order and rehabilitation. See Bell v. Wolfish, supra,

441 U.S. at 520. And when the policy in question involves

the entry of people into the prison for face-to-face contact

with inmates, security and related administrative consid-

erations are sufficiently paramount to justify the imposition

of some restrictions on such visits. Pell v. Procunier, supra,

417 U.S. at 826-27; see also Jones v. North Carolina Prison-

ers’ Union, supra, 433 U.S. at 125-26. Because the running of

a penal institution is both complex and difficult, prison

administrators are to be “accordec. wide-ranging deference”

in adopting and executing policies and practices which, in

their judgment, are necessary to preserve internal order and

discipline and to maintain institutional security. Bell v.

Wolfish, supra, 441 U.S. at 547; Jones v. North Carolina

Prisoners’ Union, supra, 433 U.S. at 126. “Such considera-

tions are peculiarly within the province and professional

expertise of corrections officials, and, in the absence of sub-

stantial evidence in the record to indicate that officials have

exaggerated their response to these considerations, courts

should ordinarily defer to their expert judgment in such

matters.” Pell v. Procunier, supra, 417 U.S. at 827; accord,

Bell v. Wolfish, 441 U.S. at 547-48; Jones v. North Carolina

Prisoners’ Union, supra, 433 U.S. at 128.

The regulations being challenged here permit each in-

mate a total of 5 full days or 10 half days of visiting privi-

leges per month. Visits by attorneys are not counted against

inmate visiting days. Prisoners are permitted visitors on

specific days between Thursday and Sunday. All visitors

must be on an approved visitors list which is generally lim-

ited to the inmate’s immediate family.”° If an inmate has no

immediate family residing in Colorado, he may have 3 non-

family visitors on his approved list, which is limited to 13

*° The regulation provides that an inmate’s “immediate family includes

spouse, common-law spouse, fiance if inmates are respectively not mar-

ried, children, stepchildren, grandparents, siblings, step-siblings, or

legal guardian, parents, and step parents.” VII Supp. R. Pl. Exh. No. 128

at 3.

A-37

persons. Changes in individual visiting lists may be made

each 60 days. VII Supp. R. Pl. Exh. No. 128 at 2-4; Def. Exh.

No. 1107.

Because of security problems which existed with open

visitation, prison officials, beginning in 1976, did not permit

inmates to have physical contact with their visitors. [V App.

Tes. 128-29. Instead, inmates and their visitors sat in booths

with glass partitions between them and spoke with each

other through telephones. In July 1979, prison officials re-

moved the glass partition in many booths to permit limited

physical contact between inmates and visitors. With the

exception of those inmates confined in segregated units, who

must use the partitioned booths,*° inmates may now kiss

their visitors at the beginning and conclusion of a visit. They

may hold hands with their visitors and may hold small chil-

dren on their laps. Any other type of bodily contact is prohi-

bited. I App. Tes. 402; XXX VIII R. 117; VII Supp. R. Pl. Exh.

No. 128 at 7; Def. Exh. No. 1107; Brief of Appellants at 128.

As noted, the district court found that these regulations

were overbroad, unrelated to any legitimate penological

purpose, and an exaggerated and excessive response to con-

cerns for prison security. We cannot agree with the trial

court’s conclusions on this subject.

There can be no doubt that contact visits between in-

mates and their visitors provide a unique opportunity for

passing contraband, including weapons and drugs, into the

prison. See Feeley v. Sampson, supra, 570 F.2d at 373; see

generally Woods v. Daggett, 541 F.2d 237, 240 (10th Cir.);

Daughtery v. Harris, supra, 476 F.2d at 294. Prison officials

have chosen to permit limited contact visitation for most

inmates as opposed to some other method of countering a

© Because this part of the plaintiff class is denied contact visitation

privileges, the question of whether such visits are mandated by the

constitution is properly presented. Although the Supreme Court has not

addressed this particular issue, see Bell v. Wolfish, supra, 441 U.S. at

559-60 n. 40, we think the weight of present authority clearly estab-

lishes that there is no constitutional right to contact visitation. See. e.g.,

Feeley v. Sampson, 570 F.2d 364, 373 (1st Cir.); Oxendine v. Williams,

509 F.2d 1405, 1407 (4th Cir.) (per curiam); Lock v. Jenkins, 464 F.

Supp. 541, 550(N.D. Ind.); Owens-El v. Robinson, 457 F. Supp. 984, 988

(W.D. Pa.); aff'd in part, rev'd in part sub nom., Inmates of Allegheny

Cty. Jail v. Pierce, 612 F.2d 754, 758-60 (3d Cir. ); see also White v. Keller,

supra, 438 F. Supp. at 114-19. We agree with this view.

A-38

known security problem. This decision should be accorded

deference so long as it is a reasonable response to the legiti-

mate concerns of prison security. The existence of less re-

strictive alternatives is not dispositive of the matter, see,

e.g., Inmates of Allegheny Cty. Jail v. Pierce, supra, 612 F.2d

at 759; Feeley v. Sampson, supra, 570 F.2d at 373, for we are

convinced that the discretion of prison officials in these mat-

ters should stand unless patently unreasonable.

We cannot say that this record “conclusively” shows

that the prison officials were wrong in considering unlimited

contact visitation a threat to the security and order of the

prison. See Bell v. Wolfish, supra, 441 U.S. at 555. Nor is

there any basis in the record for saying that the restrictions

imposed on contact visitation are irrational. In fact the rec-

ord shows that the current restrictions on contact visitation

have been successful in discouraging the transfer of contra-

band between inmates and their visitors. See I App. Tes. 404;

cf. Bell v. Wolfish, supra, 441 U.S. At 559.

With respect to the regulation allowing three non-

family visitors to be on an inmate’s approved visiting list

only when the inmate does not have immediate family resid-

ing in Colorado, we think that the regulation is a rational

response to legitimate penal concerns. The current regula-

tion permits inmates to have personal contact with those

individuals whom prison officials believe are most likely to

aid in their rehabilitation, while keeping visitations at a

manageable level that will not jeopardize institutional

security. See Pell v. Procunier, supra, 417 U.S. at 827. Those

prisoners who have immediate family in Colorado may still

communicate with non-family friends by using the mails or

by communicating to these individuals through the family

members and attorneys who are permitted to visit them. See

id. at 823-25 & n. 4. So long as these alternative channels of

communication are open to prison inmates, we think that

the numerical and qualitative restrictions on inmates’ visi-

tors are not unreasonable. See id. at 827-28.

Accordingly, the trial court’s ruling on the visitation

regulations must be set aside.

A-39

V

RESTRICTIONS ON PRISONERS’ MAIL

Under the subject of “access” the trial court dealt with

several regulations concerning prisoners’ mail. It was held

that certain prison censorship rules complied with the re-

quirements of Procunier v. Martinez, 416 U.S. 396, 418-19;

that in case of rejection of a letter to or from an inmate, the

writer must be given an opportunity to protest the decision;

that complaints thereon be referred to a prison official other

than the one who originally disapproved the correspon-

dence; and that notice that correspondence has been rejected

must contain a brief but adequate explanation, with rejected

correspondence being returned to the sender. The trial judge

also upheld the regulation prohibiting the receipt of

periodicals and other materials not mailed directly from the

publisher or an established vendor or distributor. 485 F.

Supp. at 163. No appellate issue is raised as to these rulings.

However, other mail restrictions were held invalid by

the trial court. First, it was found that there is a policy of

refusing to deliver mail in a language other than English;

that one-third of the population at Old Max is Hispanic; that

“[njumerous prisoners lack speaking, reading and writing

skills in English, as do many of their correspondents”; and

that the English language rule seriously infringed protected

First and Fourteenth Amendment interests without being

necessary to any legitimate penological purpose. 485 F.

Supp. at 151, 164. Beyond the general argument that the

trial court’s order intrudes on prison administration, there is

no argument or authority presented in defense of this lan-

guage discrimination by the State with respect to corre-

spondence. We must agree with the trial court that the

policy as applied infringes on the constitutional rights of the

defendants, without any reasonabie justification furthering

an important or substantial state interest. See Procunier v.

Martinez, 416 U.S. 396, 413.

Second, the court found that there is a policy of refusing

to deliver mail when correspondence would allegedly cause

A-40

severe psychiatric or emotional distrubance to an inmate.

CCF Reg. 302-18(7)(b). The trial court found that such a

restriction is not wholly unreasonable on its face, but that

there is an anomaly in that there is no qualified psychiatrist

or psychologist at the prison to make a decision whether

receipt of certain correspondence would cause such distur-

bance. The court ruled that until there is such personnel to

apply the rule, it is void and may not be applied. Again, there

is no specific defense on this restriction by the State, nur any

authority or evidence presented to justify the application of

the rule while the medical personnel deficiency exists. We

feel again that, in the circumstances, the order of the trial

court was not in error in restraining the enforcement of the

restriction until qualified personnel is available to apply the

rule. See Guajardo v. Estelle, 580 F.2d 748, 757 (5th Cir.).

Third, the trial court found that the prison regulation

does not make clear that in those exceptional circumstances

when outgoing privileged (legal) mail may be opened, it can

only be opened in the presence of the sending inmate. The

court held that such presence of the sender is required when

the opening of his mail occurs. 485 F. Supn. at 164. In this

instance also there is no specific defense of the prison policy

and we agree aguin with the ruling of the trial court. See

Hardwick v. Ault, 447 F. Supp. 116, 129-30 (M.D. Ga.); see

also Gates v. Collier, 501 F.2d 1291, 1310-14 (5th Cir.); Carty

v. Fenton, 440 F. Supp. 1161, 1163 (M.D. Pa.) (incoming

privileged mail must be opened in the presence of the in-

mate).

Fourth, the trial court found that in defining “legal

mail,” the regulations state that such mail is “any mail

directed between an inmate and any public official or agency

or any lawyer with respect to either his criminal conviction

or a complaint he might have concerning the administration

of the prison under exceptional circumstances.” CCF Regula-

tion 302-18(6) (emphasis added). The court found that the

latter qualification is not allowable. 485 F. Supp. at 164. No

authority or record evidence is cited by the State as a specific

defense of this regulation. We therefore sustain the trial

court’s ruling, holding invalid the restrictive definition of

legal mail quoted above. The protection afforded the legal

correspondence applies equally to criminal and civil mat-

A-41

ters, and privileged correspondence with counsel, public offi-

cials, and agencies cannot be thus confined. See Guarjardo v.

Estelle, 580 F.2d 748, 758 (5th Cir.).

In sum, we must agree that in the particulars discussed

the restrictions on prisoners’ mail are invalid under the

First and Fourteenth Amendments, being unjustified under

the standards laid down by the Supreme Court in Procunier

v. Martinez, supra, 416 U.S. at 413. We accordingly affirm

the rulings of the district court in these respects.

VI

ACCESS TO THE COURTS

The district court found that the three law libraries at

Old Max “fall below any known acceptable standard.”

Ramos v. Lamm, supra, 485 F. Supp. at 151. More specifical-

ly the court found that the general population library con-

tains approximately half the volumes recommended by the

American Association of Law Libraries Committee on Law

Library Services to Prisoners; that this library consists

mainly of outdated advance sheets, pocket parts, and dis-

cards from other sources; and that the separate law libraries

for protective custody inmates in Cellhouse 7 and for segre-

gated inmates in cellhouse 3 have fewer materials and are

far more inadequate than the general population library.

With respect to the staffing of these facilities, the court

found that while there is inmate assistance available for

those inmates who need help, there is no civilian staff with

legal or paralegal training to supervise the libraries or to

assist inmates with research. The court also found that the

law libraries are open five days a week, that prison regula-

tions permit only 13 inmates to use the law library facilities

each day (65 inmates per week), that each library visit is

limited to a maximum of three hours, and that with the

current inmate population at Old Max, a prisoner may have

access to a prison law library for only three hours every 13

weeks. Id. at 151-52, 165-66. Considering the prison’s facili-

ties and rules as a whole, the district court held that inmates

are not provided with “meaningful access to the courts.” Jd.

at 166.

A-42

The State argues that the trial court erred in finding

that the law library facilities and the library regulations at

Old Max are constitutionally defective; that existing facili-

ties “far exceed” those which were approved by the Supreme

Court in Bounds v. Smith, 430 U.S. 817; and that there was

no evidence, showing a pattern or practice by prison officials

of denying inmates access to legal materials, library facili-

ties or the courts, or showing that any inmate had been

prejudiced (i.e., by dismissal of a case) or substantially

harmed due to current prison regulations or facilities. Brief

of Appellants at 129-34.

It is now clear that inmates have a constitutional right

to “adequate, effective, and meaningful” access to the courts

and that the states have “affirmative obligations” to assure

all inmates such access. Bounds v. Smith, supra, 430 U.S. at

822, 824. In Bounds the Supreme Court held that “the fun-

damental constitutional right of access to the courts requires

prison authorities to assist inmates in the preparation and

filing of meaningful legal papers by providing prisoners

with adequate law libraries or adequate assistance from

persons trained in law.” Jd. at 828. However the ruling in

Bounds does not hold that inmates have an absolute right to

any particular type of legal assistance. See Williams uv.

Leeke, 584 F.2d 1336, 1339 (4th Cir.), cert. denied, 442 U.S.

911. The states are still free to choose among a variety of

methods or combinations thereof in meeting their constitu-

tional obligations. See Bounds, supra, 430 U.S. at 830-32.

Under some circumstances, however, even the existence

of an adequate law library will not satisfy the State’s consti-

tutional duty. See Jd. at 823-24 & n. 10-11; Twyman v. Crisp,

584 F.2d 352, 357 (10th Cir.); Glover v. Johnson, 478 F. Supp.

1075, 1096 (E.D. Mich.); Wade v. Kane, 448 F. Supp. 678, 684

(E.D. Pa.) aff’d without opinion, 591 F.2d 1338 (3d Cir.); see

also Battle v. Anderson, 614 F.2d 251, 255 (10th Cir.); Wet-

more v. Fields, 458 F. Supp. 1131, 1142-43 (W.D. Wis.). The

existence of prison regulations that limit an inmate’s access

to the law library or that limit the time, place, and manner

in which he can engage in legal research or preparation of

legal documents must be considered. See Twyman uv. Crisp,

supra, 584 F.2d at 358; Elkanich v. Alexander, 315 F. Supp.

659, 662 (D. Kan.), aff'd, 430 F.2d 1178 (10th Cir.) (per

A-43

curiam); see generally annot., 23 A.L.R. Fed. 1, 28 (1975 &

Supp. 1979). In order to properly evaluate existing condi-

tions, courts must consider the regulations, facilities, and

available resources together as a whole, remembering that

“meaningful access” is the touchstone of this constitutional

guarantee. See Bounds, supra, 430 U.S. at 823, 832; Twy-

man v. Crisp, supra, 584 F.2d at 357-58.

Here the record shows that the State has chosen to

provide both law libraries and inmate assistance. Old Max

has three law “libraries,” each serving a different segment of

the inmate population. The library in cellhouse 3 is used

exclusively by the inmates in that building. Cellhouse 7

library is for the exclusive use of protective custody inmates

in that building. The remainder of the prison population,

except for inmates housed in the Diagnositic Unit, is permit-

ted to use the general population law library. Inmates in the

Diagnositc Unit do not have direct access to any law library

facility.2” XXXI R. 7-8; XX XIX R. 26-27, 58-59; VII Supp. R.

Pl. Exh. No. 36 at 1.

Current regulations indicate that the general popula-

tion law library is open 122 hours a day, five days a week

and that the library in cellhouse 3 is open four hours a day,

five days a week. Jd. at 1; see also Brief of Appellants at 133;

Brief of Appellees at 141. The testimony at trial, however,

indicated that during the summer months the libraries are

closed in the evenings. XX XIX R. 24-25. The record does not

show that any regulations currently exist for the use of the

library in cellhouse 7, although the State claims that it is

open the same number of hours as the cellhouse 3 library.

The absence of regulations for this library is possibly due to

the fact that it was just being stocked with books at the time

of trial and was not in operating order prior to that time. See

Brief of Appellants at 132; XX XIX R. 26-27.

The record also shows that prison officials permit a

maximum of six inmates to use the general population li-

brary at one time, while only one inmate is allowed to use the

27 The record does show that an inmate library clerk visits the Diagnostic

Unit one morning every week to help inmates with their legal needs.

XXXI R. 7-8; XXXIX R. 27, 58-59.

A-44

library in cellhouse 3 at any one time. Library time is allo-

cated among inmates by the prison’s school supervisor based

on daily requests from inmates. Priority is given to inmates

facing court deadlines. Inmates are limited to approximate-

ly three hours or less per visit. Regulations prohibit inmates

from checking out legal materials from the library.*° At the

time of trial, an inmate requesting use of the general popula-

tion library normally could obtain access the same day.

Waiting lists in the past have required inmates to wait no

longer than a week. Apparently the State has kept no rec-

ords on inmate use of the libraries in cellhouse 3 and 7.

The law books available to inmates vary, depending on

the library being used. The evidence shows that the library

in cellhouse 3 has only a few volumes of the Federal Reporter

(2d series) and the Federal Supplement. The State admits

that the cellhouse 7 library “contains approximately the

same materials as the library in cellhouse 3.” Jd. A prison

library which lacks these basic materials is an inadequate

law library. See Wade v. Kane, supra, 448 F. Supp. at 682; see

also Bounds, supra, 430 U.S. at 819-20 n.4. Consequently,

we must agree with the district judge who saw the facilities

that the law libraries in cellhouse 3 and 7 fall below accept-

able standards and cannot alone provide inmates with

meaningful access to the courts.

The general population law library is the largest of the

three law libraries at Old Max. Its book collection consists

mainly of paperback advance sheets and other outdated

material. An evaluation of this library, prepared by an out-

side source at the request of the State in 1978, determined

that many of the volumes were unusable and should be

discarded. This same report concluded that the book collec-

tion is “wholly inadequate” to meet the minimum standards

of the American Association of Law Libraries Committee on

Law Library Service to Prisoners — standards which the

Supreme Court found relevant in Bounds, supra, 430 U.S. at

28 The regulations do permit inmates, absent compelling reasons to the

contrary, to purchase law books or other legal materials from the

primary sources of supply (/.e., the publisher). These purchased items

may apparently be kept by the inmate in his cell. See VII Supp. R. PI.

Exh. No. 39 at 5-6.

A-45

819-20 n.4. The State’s most recent inventory of the library’s

law books shows that volumes are missing throughout its

collection of federal decisions (i.e., U.S. Reports, Supreme

Court Reporter, Federal Reporter, 2d Series, and Federal

Supplement). E.g., VII Supp. R. Pl. Exh. No. 37 at 11, 22;

VIII Supp. R. Def. Exh. No. 1123 at 1-10. Consequently we

must agree with the trial judge that the general population

library is inadequate and does not meet the needs of the

inmates who use it.

Concluding that the prison’s law libraries are inade-

quate does not end our inquiry. We must also consider the

adequacy of alternative methods which the State has

adopted to satisfy its constitutional duty of affording in-

mates meaningful access to the courts. The record shows

that the State has allowed 3 inmate law library clerks to

provide assistance to those inmates who request help.

XXXIX R. 26-29. However there are no specific findings

concerning the training or competence of these library

clerks and the State has not pointed to any record evidence

which would show these critical factors.*” Consequently we

think the State has failed to demonstrate that it has fur-

nished an adequate alternative means of access to the courts

for the inmates. See Buise v. Hudkins, 584 F.2d 223, 228 (7th

Cir.), cert. denied, 440 U.S. 916; Cruz v. Hauck, 515 F.2d 322,

332 (5th Cir.), cert. denied, 424 U.S. 917; compare Hampton

uv. Schauer, 361 F. Supp. 641 (D. Colo.). In this connection we

note that there is no evidence that the inmate library clerks

have access to any law library facility other than the in-

adequate ones at Old Max. Even an individual highly

trained in the law would be unable to provide competent

assistance to others if forced to depend solely upon the in-

adequate law libraries at Old Max.

Accordingly, we sustain the district court’s finding and

conclusion that the State has denied the inmates meaningful

access to the courts in violation of their constitutional rights.

2° One defense witness did state that he “believed” the inmate library

clerks knew “how to use the books and assist other inmates with the use

of the books.” XX XIX R. 25. This evidence does not show, however, that

the library clerks are capable of helping any inmate draft a legal

document. More importantly, this evidence does not show that the

library clerks are capable of helping the large number of prisoners who,

as the district court found, are unable to speak, read, or write in

English. 485 F. Supp. at 151.

A-46

Vil

THE REMEDY AND DISPOSITION OF THIS APPEAL

To remedy the constitutional violations found the dis-

trict court ordered that the Old Max facility be ciused.

However, the execution of the order was temporarily stayed

on the condition that the State would take immediate steps

to provide the plaintiff class “with the basic human needs”

which the court had identified in its opinion, and that the

State would present a detailed plan setting forth the means

by which it would protect the plaintiff class from further

constitutional violations. The State’s plan, according to the

district court, was to be “in furtherance of, but not necessarily

limited to” five enumerated principles.— the principles of

productive activity, motility, health, integrity and safety,

and coherence. Future stays were contingent upon the State’s

compliance with these conditions. 485 F. Supp. at 169-70.

Subsequently, in denying the State’s motion for a stay of

execution of the judgment pending an appeal, the court ex-

plained its earlier order:

All that the remedy requires, in essence, is that the

state develop its own plans and make good faith im-

mediate and continuing efforts to implement those

plans so that the numerous constitutional violations

set forth in my memorandum opinion and order will

neither be repeated nor advanced.

Id. at 175.

The State argues on this appeal that the district court

abused its discretion in its choice of remedy. Specifically it

claims that the order of closure was the most intrusive action

the court could have taken, that since 1977 it has been

moving in a rapid manner to change its prison system, and

that since 1978 it has been working according to a five year

master plan, introduced into evidence, to ensure that this

change will take place in an orderly manner. Brief of Appel-

lants at 141-47.

A-47

The Colorado General Assembly, as amicus, states that

its good faith efforts to eliminate undesirable prison condi-

tions are well established in the record which shows, accord-

ing to the amicus, appropriations of nearly $22,500,000 be-

tween 1976 and 1979 for the State’s prison system, including

an allocation of major funds for the construction of an entire-

ly new maximum security and close security facility. The

amicus claims that this evidence amply demonstrates that it

“has embarked on a plan, which is being funded and im-

plemented, and which will result in the substantial mod-

ifice ion of the correctional system in Colorado.” Brief of

Amicus Curiae at 14-15.

During the oral argument of this appeal, the State

claimed that the new prison facility will be completed and

occupied within a matter of months. The amicus makes a

similar claim in its appellate brief. Reply Brief of Amicus

Curiae at 6. In an authorized post-argument response to this

contention, the appellees claim that there are conflicting

reports on this point and that if “developments in the con-

struction of the new facilities are relevant to the remedy in

this case, these developments should be presented in the

first instance to the district court.” Letter of Appellees’

Counsel, filed 6/9/80.

We must agree that the developments in the construc-

tion of the new prison facilities are ¢ tremely relevant in

fashioning an appropriate remedy fur the constitutional

violations which exist in this case. See Holt v. Sarver, 442

F.2d 304, 309 (8th Cir.). And while the scope of a district

court’s equitable powers to remedy constitutional violations

is “broad,” see Hutto v. Finney, 437 U.S. 678, 687 n.9 we have

noted before that the exercise of this power is necessarily

tempered by the public interest involved. See Battle v.

Anderson, 594 F.2d 786, 793 (10th Cir.); Gates v. Collier, 407

F. Supp. 1117, 1120-21 (N.D. Miss.).

It is common ground that the State of Colorado has

appropriated large amounts of money for the construction of a

new correctional facility to accommodate the inmates of Old

Max and that this construction has been underway for some

A-48

time. See I App. Exh. 96-107.°° The amicus points out that

recent legislation has authorized funds for 90 new staff posi-

tions to coincide with the opening of both the new maximum

and the close security facility. The vast majority of these new

positions will be used for new security, housing and medical

personnel. Reply Brief of Amicus Curiae at 8.

The district court entered its Rule 54(b) order and an

immediate appeal of the court’s December 1979 order fol-

lowed. The appeal is now decided in this court, with the

rulings on constitutional violations sustained part and va-

cated in part. However, it is apparent that events have

moved forward, that new measures have been taken, and

whether the remedial order should stand or be modified

should be reconsidered after further proceedings in light of

changed conditions and this opinion.

For these reasons we feel that the case should be re-

manded for the district court to reconsider the proper re-

medy in light of the present state of conditions, as was done

in the Battle controversy involving the Oklahoma penitenti-

ary. See 594 F.2d 786, 793. On remand the district court

should consider, inter alia, the present status of the new

facility, the specific plans to which the State is committed for

the transfer and housing of inmates in the new facilities, the

specific commitments for enlarged staff personnel to remedy

the deficiencies in personnel that have been found, and the

actual progress made in these areas. The district court

should conduct any necessary further proceedings for the

development of the facts on the status of these matters and

on actions required to eradicate the constitutional violations

found, with respect to those violations on which the district

court’s rulings are upheld herein.

%° The district court’s opinion in December 1979 referred to the fact that

Colorado has appropriated funds to build a new maximum security

prison and a new close security prison, and that opening of these

facilities is not scheduled until January or February 1981. 485 F. Supp.

at 134.

A-49

Vill

CONCLUSION

In sum, we hold: (1) that the district court did not err or

abuse its discretion in refusing to abstain from deciding the

merits of this case; (2) that the district court’s findings were

not in error as to Eighth Amendment violations at Old Max

in the areas of shelter, sanitation, food, safety, and medical

care and in the finding of a violation of the inmates’ constitu-

tional right of access to the courts, due to the inadequate law

library facilities and the restricted access permitted to them;

(3) that the provisions of the district court’s remedial order

on motility, classification, and idleness, are vacated, as pro-

vided in Part III A, supra; (4) that the findings and judgment

holding unconstitutional the prison’s visitation regulations

and policies are vacated; (5) that the ruling holding invalid

and unenforceable four of the restrictions on inmates’ corre-

spondence was not in error and is sustained; and (6) that the

remedial order is vacated and the cause remanded for furth-

er proceedings and reconsideration as provided above, ex-

cept with respect to the portions of the order on health care,

which shall remain in effect until the district court’s recon-

sideration and entry of any new order thereon.

Accordingly, the district court’s findings and conclu-

sions are affirmed in part and set aside in part; the district

court’s remedial order is vacated in part; and the cause is

remanded for further proceedings, all in accord with this

opinion.

A-51

OPINION OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO DATED

DECEMBER 20, 1979

PREVIOUS PAGE WAS BLANK »

A-53

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

FIDEL RAMOS, DAVID

LEE ANDERSON, SADIKI

LISIMBA AJAMU (a/k/a

Eugene Collins),

ALEXANDER ROSES,

MARK J. MENCHETTI and Civil Action

LESTER LAZENBY, et al., No. 77-K-1093

Plaintiffs,

vs. MEMORANDUM

OPINION AND

RICHARD D. LAMM, ORDER

ALLEN L. AULT,

JOHN PERKO,

EDGAR FOX AND

WILLIAM WILSON

ee eee ee ie iT iT ee Aa ae el

Defendants.

JAMES E. HARTLEY and HUGH Q. GOTTSCHALK,

Attorneys at law, appearing on behalf of The ACLU Founda-

tion of Colorado, Inc., P.O. Box 8749, Denver, Colorado

80201; and

PEGGY A. WIESENBERG and RALPH I. KNOWLES,

JR., Attorneys at law, appearing on behalf of The National

Prison Project, 1246 Connecticut Avenue, N.W., Suite 1031,

Washington, D.C. 20036; attorneys for plaintiffs.

JOSEPH N. de RAISMES, First Assistant Attorney

General, RICHARD H. GOLDBERG, JEFFREY WEIN-

MAN, and MAUREEN PHELAN, Assistant Attorneys

General, Office of the Attorney General, 1525 Sherman

Street, 3rd Floor, Denver, Colorado 80203, attorneys for

defendants.

PREVIOUS PAGE WAS BLANK

>

A-54

KANE, District Judge

This action is a suit under 42 U.S.C. §1983' challenging

conditions of confinement at the maximum security unit of

the Colorado State Penitentiary at Canon City, Colorado.

Plaintiffs are persons incarcerated in this maximum secur-

ity unit, and defendants include the governor of Colorado,

the executive director of the Department of Corrections, and

the superintendent of the maximum security unit. The suit

was filed in forma pauperis on November 30, 1977. After

appearance of counsel for plaintiffs and amendment of their

complaint, the suit was certified as a class action on March

31, 1978, pursuant to F.R.Civ.P. Rule 23. The class consists of

all persons who are now or in the future may be incarcerated

in the maximum security unit, or the new maximum or close

security unit, of the Colorado Department of Corrections.

On May 17, 1978, a motion to dismiss, or in the alterna-

tive to abstain, was denied, and defendants answered the

amended complaint on June 9, 1978. After a year and a half

of discovery and months of effort to reach a settlement, the

pretrial order was filed. On October 5, 1979, the eleventh

hour before trial, the Honorable Richard D. Lamm, Gov-

ernor of Colorado, filed a letter with the court concerning the

parties’ efforts to reach a settlement. In the letter Governor

Lamm detailed the unsuccessful efforts made to bring the

various constituencies of the state government into consen-

sus and requested an additional one week’s continuance of the

trial date in order to further these efforts. The request was

granted. In part of his letter, Governur Lamm stated, “I

understand that the parties must prepare for trial, but it is

my earnest hope that a consensus can be reached before

' This statute was passed by Congress on April 20, 1871 and provides as

follows:

“Every person who, under color of 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.”

Jurisdiction is provided at 28 U.S.C. §1343(3).

A-55

trial, one way or another. I believe that an agreement

negotiated by the parties in good faith in this matter should

be given a chance to succeed, which it can if there is a

legislative consensus in support of it. But I cannot agree to

the document which I have reviewed absent such a consen-

sus, and I do not believe that it would be in the interest of the

court or the parties for me to do so.” Trial began on October

15, 1979 and lasted for five weeks. Testimony from inmates,

state officials and numerous experts was received.

Thousands of pages of documentary evidence were received,

and a firsthand inspection of the prison was made. After

eight hours of final arguments a bench ruling was made in

favor of plaintiffs holding that the conditions at the Canon

Correctional Facility deprive persons incarcerated there of

rights clearly protected by the United States Constitution

and violate numerous rules of state law. This opinion sup-

plants the bench ruling.

THE CONTEXT OF JUDICIAL DETERMINATION

Across the country, civil rights cases filed by state pris-

oners in federal courts have increased from 2,030 in 1970 to

11,195 in 1979, an increase of 451.5 per cent. ADMINIS-

TRATIVE OFFICE OF THE UNITED STATES COURTS,

1979 ANNUAL REPORT OF THE DIRECTOR 59-62

(1979).? In the District of Colorado, for the twelve month

period ending June 30, 1979, 155 civil rights cases were

commenced by state prisoners, compared to 106 in 1978, 51

in 1977, and only 21 in 1976.° This represents an increase of

50 per cent since 1978, and almost 750 per cent since 1970.

As of June 30, 1979, 115 such cases were pending in this

district, compared to only 65 as of the same time in 1978.4

* For a study of state prisoner civil rights actions, see Turner, When

Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal

Courts, 92 Harv. L. Rev. 610 (1979).

* ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,

1979, 1978, 1977 and 1976 ANNUAL REPORTS OF THE DIRECTOR.

* 1979 and 1978 ANNUAL REPORTS, at A-23 and A-25, respectively.

A-56

From the Colorado State Penitentiary alone, 150 civil

rights cases have been filed since 1976. Of these 150, 84 were

dismissed and two others were decided in favor of defendant

state officials.° In comparison, in only four cases was there

any disposition, preliminary or otherwise, in favor of plain-

tiff inmates. Two cases are on appeal, nine have been stayed

or consolidated with this action, 39 others are pending, and

ten have had assorted histories. Of the 92 case dispositions,

86 were either dismissed or decided in favor of state officials,

accounting for more than 93 per cent of the results. Such a

history hardly indicates that the federal judiciary has

jumped at the chance to interpose itself between Colorado

officials and persons confined at the State penitentiary. The

contrary is true.

A great deal of this deference to state officials has been

due to the substantial reluctance of federal courts to inter-

vene in matters of prison administration. For many years,

the so-called “hands off” policy was a near absolute jurisdic-

tional bar to federal court review of alleged violations of

prisoners’ asserted constitutional rights. Language from the

Tenth Circuit is suggestive of the attitude that “[clourts are

without power to supervise prison administration or to in-

terfere with the ordinary prison rules or regulations.” Ban-

ning v. Looney, 213 F.2d 771, 771 (10th Cir. 1954), cert.

denied, 348 U.S. 859 (1954). See Stroud v. Swope, 187 F.2d

850, 851 (9th Cir. 1951), cert. cenied, 342 U.S. 829 (1951);

Garcia v. Steele, 193 F.2d 276, 278 (8th Cir. 1951); and

Dayton v. Hunter, 176 F.2d 108, 109 (10th Cir. 1949), cert.

denied, 388 U.S. 888 (1950).° With Cooper v. Pate, 378 U.S.

546 (1964) (per curiam), however, the courts began to open

their doors to prisoner complaints. In Cooper, a state prison-

er alleged that he was denied religious freedom and dis-

° Nationwide, of the 10,301 state prisoner civil rights actions disposed of

during the twelve month period ending June 30, 1979, 9,526, or 92.47 per

cent, were disposed of before pretrial, and only 358, or 3.47 per cent, went

to trial. 1979 ANNUAL REPORT, at A-30 — A-31.

® For a history and discussion of the “hands off” doctrine, see Note, Beyond

the Ken of the Courts: A Critique of Judicial Refusal to Review the

Complaints of Convicts, 72 Yale L. J. 506 (1963); Comment, Constitution-

al Rights of Prisoners: The Developing Law, 110 U. Pa. L. Rev. 985

(1962).

A-57

criminated against in his religious practice. The Seventh

Circuit affirmed the district court’s dismissal:

‘We think that it is well settied that it is not the function

of the courts to superintend the treatment and disci-

pline of prisoners in penitentiaries, but only to deliver

from imprisonment those who are illegally confined.’

Stroud v. Swope, Warden, 9 Cir., 187 F.2d 850, 851. A

prisoner may not approve of prison rules and regula-

tions, but under all ordinary circumstances that is no

basis for coming into a federal court seeking relief even

though he may claim that the restrictions placed upon

his activities are in violation of his constitutional

rights. [Citations omitted. |

324 F.2d 165, 167 (7th Cir. 1963) (quoting United States ex

rel. Morris v. Radio Station WENR, 209 F.2d 105, 107 (7th

Cir. 1953) ). On certiorari, the Supreme Court reversed.

“Taking as true the allegations of the complaints, as they

must be on a motion to dismiss, the complaint stated a cause

of action and it was error to dismiss it.” Cooper v. Pate, 378

U.S. at 546.

By 1972, the Supreme Court said in Cruz v. Beto, 405

U.S. 319, 321-22 (1972) (per curiam):

Federal courts sit not to supervise prisons but to

enforce the constitutional rights of all ‘persons’, includ-

ing prisoners. We are not unmindful that prison offi-

cials must be accorded latitude in the administration of

prison affairs, and that prisoners necessarily are sub-

ject to appropriate rules and regulations. But persons in

prison, like other individuals, have the right to petition

the Government for redress of grievances which, of

course, includes ‘access of prisoners to the courts for the

purpose of presenting their complaints.’ Johnson v. Av-

ery, 393 US 483, 485, 21 L Ed 2d 718, 721, 89 S Ct 747;

Ex parte Hull, 312 US 546, 549, 85 LEd 1034, 1035,61S

Ct 640.

The court reversed the lower courts’ dismissal and granted

petitioner’s motion for leave to proceed in forma pauperis.

A-58

The Tenth Circuit followed suit in Bethea v. Crouse, 417

F.2d 504 (10th Cir. 1969). Discussing its past dealings with

prisoner complaints, the Court of Appeals stated at 505-06

(emphasis added):

We have consistently adhered to the so-called

“hands off” policy in matters of prison administration

according to which we have said that the basic responsi-

bility for the control and management of penal institu-

tions, including the discipline, treatment, and care of

those confined, lies with the responsible administrative

agency and is not subject to judicial review unless exer-

cised in such a manner as to constitute clear abuse or

caprice upon the part of prison officials. See Graham v.

Willingham, 384 F.2d 367 (10th Cir. 1967). Also see

Banning v. Looney, 213 F.2d 771 (10th Cir. 1954;

Powell v. Hunter, 172 F.2d 330 (10th Cir. 1949). But

being fulling cognizant that one does not lose all his

constitutional rights when he enters a prison, see Cooper

v. Pate, 378 U.S. 546, ... , we have never turned a deaf

ear to a bona fide claim for relief based upon the depri-

vation of a constitutional right when asserted by a feder-

al or state prisoner, either in the nature of a mandamus

or habeas corpus proceeding, or, as here, a claim under

the Civil Rights Act.

Accord, Gregory v. Wyse, 512 F.2d 378, 381 (10th Cir. 1975),

Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970).

In Crouse, inmates at the Kansas State Penitentiary com-

plained, inter alia, that prison officials had stood by and not

intervened when plaintiffs were assaulted by another in-

mate. The district court had granted summary judgment in

favor of the warden, and the court of appeals reversed, find-

ing that summary judgment was not appropriate. 417 F.2d

at 507-10.

Defendants have pointed to several recent Supreme

Court decisions which reiterate the policy of substantial

deference to prison officials. See Bell v. Wolfish, US.

—____., 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones v. North

Carolina Prisoners’ Union, Inc., 433 U.S. 119 (1977); and

Procunier v. Martinez, 416 U.S. 396 (1974). I have read these

A-59

decisions and, to the extent that they are relevant, I am

bound by them. In fact, I have consistently followed this

policy. See Jackson v. Moore, 471 F. Supp. 1068 (1979);

Marioneaux v. Colorado State Penitentiary, 465 F. Supp.

1245 (1979); Tuggle v. Evans, 457 F. Supp. 1015 (1978);

Mingo v. Patterson, 455 F. Supp. 1358 (1978); Sorenson v.

Zapien, 455 F. Supp. 1207 (1978); and Brown v. McCowen,

445 F. Supp. 468 (1978). But it is always the countervailing

principle, in these decisions and others, that “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 regulation or

practice offends a fundamental constitutional guarantee,

federal courts will discharge their duty to protect constitu-

tional rights.” Procunier v. Martinez, 416 U.S. at 405-06. As

the Tenth Circuit said in Battle v. Anderson, 564 F.2d 388,

392-93 (10th Cir. 1977):

We, too, abhor any situation or circumstances re-

quiring the intervention of the federal courts in matters

involving the administration, control and maintenance

by the sovereign states of their penal systems. It is a

delicate role assigned to the federal courts to display

that restraint so necessary ‘in the maintenance of prop-

er federal-state relations.’ Townsend v. Sain, 372 U.S.

293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). We are cogni-

zant of the complexity of problems confronting the

states in upgrading not only a host of state institutions

and facilities but in properly maintaining them both

physically and with adequate personnel. If we were to

close our eyes to the financial burdens a variety of

‘piecemeal’ federal court orders would impose upon the

states and their taxpayers we would refuse to come to

grips with reality. We are in sympathy with the ever

increasing budgetary demands upon state taxpayers.

There are constitutional and statutory limits on a

state’s capacity to finance capital outlays. No one state

governmental body is authorized to dictate a specific

course of action. The governmental wheels often turn

slowly simply as a result of pressure generated by a

multitude of needs. Those charged with the administra-

tion of state government must pick and choose, set

A-60

priorities and goals, many of which must later be aban-

doned or delayed because of unforeseen emergencies.

Thus, it is in recognition of these problems and pres-

sures that this court is sincerely reluctant to enter the

arena involving the issues presented. The fact is,

however, that the issues are jurisdictionally before us,

just as they were jurisdictionally before the District

Court. They have not been invited or solicited. We are

guided by the fact that the United States Supreme Court

has not wavered in its holding that the Eighth Amend-

ment to the United States Constitution prohibiting the

imposition of cruel and unusual punishment is, inter

alia, intended to protect and safeguard a prison inmate

from an environment where degeneration is probable

and self-improvement unlikely because of the conditions

existing which inflict needless suffering, whether

physical or mental. Estelle v. Gamble, 429 U.S. 97 S.Ct.

285, 50 L.Ed. 2d 251 (1976); Gregg v. Georgia, 428 U.S.

153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). [Emphasis

added. |

As I have stated in my bench ruling, there is, from the ~*

beginning of my assignment to this case to the present time,

a complete and utter distaste for having to cross that Rubi-

con which separates the federal government from the state

government. In addition to the cited decisions, the history

which I have recounted shows that this circuit and district

have shown great deference to prison officials, especially

toward the Colorado State Penitentiary and the 150 cases

that have been filed from there in the past three years.

Nevertheless, the plaintiffs have presented substantial,

often compelling, evidence of long existing and continuing

constitutional violations. Except in fashioning the neces-

sary relief, deference is no longer possible.

JURISDICTION

It is a well-settled rule that civil rights plaintiffs are not

required to exhaust state remedies before seeking relief in

federal court. See Wilwording v. Swenson, 404 U.S. 249

(1971) (per curiam); King v. Smith, 392 U.S. 309 (1968);

Houghton v. Shafer, 392 U.S. 309 (1968) (per curiam; Dami-

A-61

co v. California, 389 U.S. 416 (1967) (per curiam); McNeese v.

Board of Education, 373 U.S. 668 (1963); Monroe v. Pape, 365

U.S. 167 (1961). Accord, Clappier v. Flynn, 605 F.2d 519, 526

(10th Cir. 1979). Wilwording is particularly relevant since

in that case state prisoners complained of conditions of con-

finement in the maximum security unit of the Missouri

State Penitentiary. The complaint was fashioned as a peti-

tion for habeas corpus and both the district court and the

Eighth Circuit dismissed the petition for failure to exhaust

state remedies. 404 U.S. at 249. After stating that “|slection

2254 does not erect insuperable or successive barriers to the

invocation of federal habeas corpus,” id. at 250, the court

said that the prisoners’ pro se complaint could “also be read

to plead causes of action under the Civil Rights Act.” Jd. at

251. The court continued:

Petitioners were therefore entitled to have their

actions treated as claims for relief under the Civil

Rights Acts, not subject, on the basis of their allega-

tions, to exhaustion requirements. The remedy pro-

vided by these Acts ‘is supplementary to the state re-

medy, and the latter need not be first sought and re-

fused before the federal one is invoked.’ Monroe v. Pape,

365 US 167, 183, 5 L Ed 2d 492, 503, 81 S Ct 473 (1961);

McNeese v. Board of Education, 373 US 668, 10 L Ed 2d

622, 83 S Ct 1433 (1963); Damico v. California, 389 US

416, 19 L Ed 2d 647, 88 S Ct 526 (1967). State prisoners

are not held to any stricter standard of exhaustion than

other civil rights plaintiffs. Houghton v. Shafer, 392 US

639, 20 L Ed 2d 1319, 88 S Ct 2119 (1968).

The rule is applicable here.’

7 Several lower courts have attempted to establish an exhaustion require-

ment in prisoner civil rights litigation but have been reversed by the

courts of appeal. See McCray v. Burrell, 367 F.Supp. 1191 (D. Md. 1973),

rev'd, 516 F.2d 357 (4th Cir. 1975), cert. dismissed as improvidently

granted, 426 U.S. 471 (1976) (per curiam); Hardwick v. Ault, 517 F.2d

295 (5th Cir. 1975). McCray provided the Supreme Court with an express

opportunity to require that state prisoners exhaust state remedies before

seeking federal civil rights relief, but the court dismissed its writ of

certiorari as improvidently granted, 426 U.S. at 471, after the issue had

been briefed and argued on its merits. Four members of the court

nonetheless expressed agreement with the Fourth Circuit's decision that

exhaustion is not required. Jd. at 471-75.

A-62

FINDINGS OF FACT

In Appendix I (Revised) to the Pre-Trial Orders there

are 1,727 separate, numbered paragraphs containing sti-

pulations and proposed stipulations of fact, excerpts of sworn

testimony and summaries of statistics. Some of these para-

graphs contain subheadings and, in their entirety, the data

covers 229 pages. During trial, thirty-six additional witness-

es were offered and received. Over four hundred exhibits

were received. It would be pointless to set forth all of this

evidence in detail. With only two obvious exceptions, the

testimony was credible and largely uncontradicted.

As will be stated more explicitly, the evidence in this

case shows that prisoners in the Canon Correctional Facility

are housed under conditions which fall below all recognized

constitutional and professional standards. Those conditions

include insufficient living space with inadequate sanitation,

ventilation, light, heat, noise control and fire safety; lack of

protection from violence; massive and pervasive idleness

because of lack of productive activity; inadequate medical

care (both mental and physical); and unnecessarily restric-

tive classification of prisoners into security classifications

which exacerbate physical and mental deterioration.

The old maximum security prison of Colorado (“Old

Max”) began as a territorial prison back in the late 1860's

before Colorado became a state. For the most part, Old Max

was built in the early part of this century. With the excep-

tion of the new administration building, the prison is anti-

quated and shows scars left by generations of neglect.

Every report which has been issued in the last ten years

has decried the inadequate facilities and sporadic rehabil-

itation at Old Max. The institution has been studied to

death.

In 1973, a task force from the American Correctional

Association found that Old Max was an “outdated, unman-

ageable facility” which could not be efficiently staffed due to

its design. A year and a half later, the report by the Attorney

General to defendant Lamrn on the events and causes of the

May 18, 1975 riot found that Old Max was “antiquated” and

“insecure” and recommended studying the possibility of raz-

A-63

ing the cellhouses or gutting their interiors in their entirety.

In February 1977, the Corrections Master Plan which was

submitted to defendant Lamm and the Colorado State Legis-

lature recommended that Old Max be phased out as a prison.

Its use as a medium security prison was considered and

rejected.

In February, 1978, the Department of Corrections com-

missioned yet another master plan. A consultant familiar

with reuse and modification of existing correctional facili-

ties, whom the Department of Corrections hired to study Old

Max, found that with the exception of the new administra-

tive building, all other facilities at Old Max, including the

perimeter wall should be demolished or otherwise decom-

missioned so that inmates will not be housed or employed in

those buildings. At the time of this study, the Department of

Corrections supported demolition of all buildings at Old Max

except the administration building. Paul Silver, a national-

ly recognized corrections architect hired by the defendants,

has stated that each and every major living area at Old Max

is unfit for human habitation.

Although Colorado has appropriated funds to build a

new maximum security prison and a new close security

prison, these facilities are not scheduled to be opened until

January or February 1981. In the interim, prisoners are

forced to live in intolerable conditions at Old Max.

Old Max was built over the years in a random fashion on

a site stepping up a steep “hogback” hill at the west end of

Canon City. Buildings, fences, walls and towers have been

added over the years without an overall plan for

development.

Due to its haphazard evolution, Old Max is a collection

of unmanageable and unsecurable building components. A

relatively new administration building and diagnostic cen-

ter front the public road and form the outer facade of the

prison. Behind the walls, the prison consists of three large

cellblocks — 1, 3, and 7. The central building which houses

the school, auditorium, !aw library, main kitchen, dining

rooms, and a few offices is part of the same building that

A-64

houses cellhouse 1. The prison infirmary which serves all 3

prisons in Canon City is located deep within the Old Max

complex near cellhouse 3. In the basement of the infirmary

there is a small housing unit known as cellhouse 5 for

“trusty” prisoners; upstairs is a clutch of carrels for the tiny

and wholly inadequate mental health department. Beyond

the North Wall is a small industry row. Outside the walls on

the east side of the prison is a small obsolete building known

as cellhouse 4 which originally was used as the Colorado

Women’s prison and is now used to house minimum security

prisoners assigned to Old Max.

The main living areas of Old Max are unfit for human

habitation. Housing facilities are totally obsolete and do not

comply with minimal architectural standards. Cellhouses 1

and 7 house approximately 800 prisoners in high multi-

storied open tiers. Each cellhouse consists of 2 concrete cell-

blocks, with 4 tiers of cells back to back in 2 parallel rows

with an open gallery between them. There is no room for

prisoners to move. Most cells provide for barely one half the

square footage of space required by modern correctional

standards.® Tiers are narrow and floor space is limited. As a

result, prisoners live with constant jostling in very re-

stricted space.

At one point, Colorado planned to tear down cellhouse

7. As recently as 1975, it was closed. However, after the May

1975 riot, cellhouse 7 was reopened so prisoners could escape

the overcrowded conditions which existed in cellhouse 1.%

Now the population in those cellhouses has increased.

Cellhouse 3 consists of 100 segregation cells in a con-

crete building with 10 separate wings for prisoners. It has

two floors. Each floor has 2 wings of interior cells back to

back. In addition, cellhouse 3 has 6 maximum isolation cells

known as “the hole” on the bottom floor behind the officer

® In cellhouse 7, most cells are 31.5 square feet. In cellhouse 1, cells are 35

square feet.

* In May of 1975, the population in cellhouse 1 was 357 and the Attorney

General’s Investigation found that prisoners, line officers and adminis-

trators all agreed that it had to be drastically reduced.

A-65

control cage and a similar wing upstairs for death row. There

is a special section on the second floor known to the staff as

the “intensive management unit” and to the prisoners as the

“dog cages.” Both terms are accurate. Prisoners in cellhouse

3 are locked in their cells an average of 23 hours a day. The

cells do not provide the 80 square feet required for prisoners

in segregated status by the American Correction Associa-

tion or the 60 square feet accepted by Battle v. Anderson.

Environmentally Old Max is inadequate to meet the

health and safety needs of prisoners in the correctional sys-

tem. Buildings are in a serious state of disrepair. The roof in

cellhouse 1 has been leaking in the south, north and front

sections for several months. Previous repairs were ineffec-

tive. The roof in cellhouse 3 is deteriorated and has also been

leaking over a major portion of the cellhouse.

Plumbing throughout Old Max is unsanitary, inade-

quate and poses an imminent danger to public health. Cell-

house 3 does not have hot water, even though minimum

standards for correctional institutions require hot water asa

fundamental health measure. Cellhouses 1 and 7 cells now

have hot water.

Throughout the institution, there are leaking water

pipes. In cellhouse 7, continuing problems with leaking

plumbing have caused leaks into adjacent and lower cells.

Moreover, malfunctioning toilets and deficient venting of

the plumbing system have caused sewage to drain into sinks

in adjacent and lower cells.

Shower areas have not been maintained in clean, sani-

tary and safe condition. Bath water has been impounded in

shower drains and troughs due to obstructed drains. Exces-

sive moisture, humidity and overgrowths of mold, fungus

and slime have resulted from inadequate ventilation. Miss-

ing ceramic floor tiles have made floors uncleanable and

promote mold and slime buildup. The unsanitary conditions

present a source of infection from fungal buildup and a

hazard to users due to metal stubs sticking up through the

floor and uncovered electrical boxes that are sources for

electrical shock. In cellhouse 3, one inmate was burned on

A-66

the arms, hands, neck, back and face by being exposed to

excessively hot water in the shower; his injuries required

plastic surgery.

The heating and ventilation system are antiquated and

incapable of providing minimally adequate heat and ven-

tilation. Cellhouses 1 and 7 have open 5-6 story interiors

with two four-tier islands of cells surrounded by glass win-

dows around the entire building perimeter. This design pre-

cludes the elimination of drafts, the adequate control of

tempera ures, and the even circulation of air. State health

inspections have consistently cited extreme temperature

variations between the first and fourth tiers. Ventilation

equipment is frequently not in use. During the summer

months, odors, excessive heat, and humidity are unbearable

on the upper tiers. The lack of adequate ventilation causes

stagnant air with foul odors; the continued presence of con-

taminants in the air; a lack of adequate displacement of body

heat; personal discomfort; health and sanitary problems and

an increase in frustration, stress and hostility among prison-

ers and staff. The ventilation systems in cellhouses 1, 3 and 7

cannot be upgraded to meet minimum standards without

major alterations of the ventilation systems and buildings at

uneconomical expense.

The noise levels in the living areas of Old Max are

intolerable. Large and old cellblocks with large vaulted

spaces, tremendous physical distances, open tiers, hard sur-

faces, and an absence of acoustical equipment create serious

and harmful noise level problems. There is a direct correla-

tion between high noise levels and high blood pressure,

hypertension, nervousness, stress, loss of appetite and detri-

mental psychological effect. No measures have been taken to

control or abate noise in any area of Old Max.

Lighting is inadequate for prisoners to read safely in

their cells. Minimum standards require 30 foot candles;

ordinary lighting for book reading should be 60-80 foot can-

dles by architectural standards. Readings at Old Max for

March, June and July 1979 showed lighting was only 10 foot

candles. The cell lights by design are inadequate and im-

practicable for lighting purposes involving close eye tasks.

A-67

Inadequate lighting has adverse effects on vision; moreover,

insufficient lighting increases tension and fatigue among

prisoners and guards.

The entire institution is a fire hazard. In the event of fire

in old multi-tiered facilitities like cellhouses 1 and 7, it is

impossible to evacuate prisoners. Cellblocks are not divided

into compartmentalized fire zones. There are neither smoke

barriers nor smoke detectors. Twenty-four hour surveillance

by guards is relied upon for fire detection, and fire fighting.

Even the hospital has dead end corridors which present

serious barriers to evacuation in case of emergency. The

institution has been cited for numerous violations of the

National Fire Protection Association Standards.

Conditions in the food services areas at Old Max and the

Diagnostic Unit fail to meet any known public health stan-

dards. The building housing the main kitchen is obsolete; in

October 1978 the Department of Corrections determined

that major structural improvements were not economically

feasible. Walls are soiled with dirt. The wall tile throughout

the main kitchen is not readily cleanable because of recessed

grouting. Concrete floor areas have deteriorated and are not

readily cleanable. Ventilation is inadequate throughout the

main kitchen. The fan in the kitchen is ineffective and

causes dust and lint to be blown over the food preparation

area. Two barely functioning floor drains serve the entire

kitchen. Excessive water collects around steam kettles,

dishwashers, and the produce processing area. Storage

shelves have been soiled with dirt. Rodent droppings have

been found in the storeroom. Equipment is outdated and

poorly arranged.

Inspections by the Colorado State Health Department

have revealed persistent violations of health codes. As of

July 17, 1979, the State Department of Health could not

issue a Certificate of Inspection for the food service facilities

because the facilities were not in substantial compliance

with the “Rules and Regulations Governing the Sanitation

of Food Service Establishments in the State of Colorado.”

Although some deficiencies were clearly laid to the outdated

equipment and facilities, most deficiencies were caused by a

A-68

lack of routine maintenance, operational and cleaning pro-

cedures. These unsanitary conditions have a direct impact

on the health of the inmate population.

Many health and sanitation deficiencies at Old Max are

the result of a lack of routine maintenance and cleaning

programs. The present executive director, James Ricketts, is

a professed stickler for cleanliness. Under his administra-

tion, a significant increase in cleaning activity has taken

place but the facilities are still below standard. Poor house-

keeping practices have been prevalent throughout the in-

stitution. Inspection after inspection cites cellhouses, corri-

dors, and cells that are littered with trash and an accumula-

tion of decayed food and other materials. As of July 1979,

general repair and maintenance work at the prison was not

being handled in a prompt and responsive manner by the

industries division thus resulting in delays in repairs to

plumbing, lighting and electrical systems.

Every expert who has examined Old Max has concluded

that it would be both infeasible and uneconomical to reno-

vate Old Max for continued use. Defendant, former Execu-

tive Director Ault, has stated that many health and safety

deficiencies at Old Max are virtually impossible to correct

because of inherently deficient design and construction. As

of February 1, 1977, it would have cost at least 38 million

dollars to make Old Max minimally habitable. Even if defen-

dants were to upgrade individual buildings to minimize en-

vironmental health deficiencies, the design and layout of

Old Max make it virtually impossible for officials to provide

prisoners with adequate programming.

There is inadequate space at Old Max for programs and

what space is provided is poorly designed. In order to prevent

debilitation of prisoners, housing units must include ade-

quate space for outdoor recreation, indoor recreation, lounge

space and private activity spaces. Yet none of the major

housing units at Old Max have day rooms, activity space or

private conference areas. The random layout of buildings

limits spaces available for programmed recreation. More-

over, the mazelike design and disorganized layout of the

prison dictate a disproportionate amount of staff time to

security and monitoring traffic. Staff are not available to

oversee programs and activities. Former Director Ault recog-

A-69

nized that the limitations of the 100 year old prison would

make it difficult for the Department of Corrections to imple-

ment Colorado laws which require all inmates to work.

The most serious defect in the design of Old Max, how-

ever, is the inherent inability to provide prisoners with basic

safety. The American Correctional Association report, the

Attorney General’s report, the 1977 Master Plan and the

Five Year Correctional Plan all found that the design of the

prison makes it virtually impossible to provide prisoners

with security. The haphazard growth of the institution and

the nature of the site do not permit adequate surveillance.

Due to inadequate planning and design, the prison can-

not be staffed efficiently to provide for security. So many

walls and fences have been constructed within the perimeter

of Old Max, it takes a disproportionate amount of staff to

man the security towers; it is necessary to man 10 towers

around the clock, to provide what is less than adequate

surveillance. Because buildings, yards and walls have de-

veloped in a random fashion, inmate traffic around the pris-

on is congested and confused. Moreover, there are a large

number of blind spots which permit assaults and violent

incidents to occur out of the sight of correctional officers.

There are so many niches and crannies which are hidden

from visibility at Old Max that officials have restricted pris-

oner movement and the use of outdoor space.

The cellhouses do not provide for safety. Housing con-

tributes to violence between inmates often leading to severe

injury and death. The design of cellhouses 1 and 7 fails to

provide for visibility. The guards’ cage at the far end of the

cellhouse is inadequate for surveillance. There is no secure

vantage point from which cell movement can be observed.

Visual surveillance of the upper tier cells and most of the

tiers is obstructed from the ground floor. Similarly, cell-

house 3 has 10 separate wings for housing prisoners. This

design does not allow for visual surveillance and observation

from the central control cage.

Old Max fails to meet life safety codes, building codes,

health codes, fire safety codes, or other regulations relating

to the safety of inmates and staff.

A-70

IDLENESS

Old Max is characterized by massive and pervasive idle-

ness. Although the defendants have been aware of the prob-

lem of idleness for years, nothing has been done to alleviate

the dead time and boredom which dominate the lives of most

prisoners at Old Max. In recent years, actions have been

taken to restrict rather than to increase activity at the pris-

on. No substantial effort has been made to increase jobs or

programs or activities at Old Max nor are there any de-

veloped plans or funds for jobs, programs, activities or staff

at the new prisons.

In 1973, the American Correctional Association found

that idleness was responsible for more problems at Old Max

than any other factor. Similarly, the report of the Attorney

General on the events and causes of the May 18, 1975 riot at

the Colorado State Penitentiary concluded that “there is too

much ‘dead’ time during which inmates have no effective

opportunity to engage in productive activity,” and that

“more work and recreation programs are needed.”

While fully cognizant of these reports, prison officials

began to restrict productive activity at Old Max. After 1975,

officials tore down a substantial portion of industry row

along the north wall eliminating the cannery, mattress fac-

tory, brick plant, shoe shop, butcher shop, tin shop, garbage

shop, soap plant, blacksmith shop and tailor shop. For total-

ly unexplained reasons, inmates do not even remove trash

and garbage. Such removal is performed by an outside con-

tractor. In 1977, after Allen Ault became Director, officials

tore down the laundry which employed over 50 prisoners. In

1977, the officials tore down the general library and stopped

providing any library services or books to prisoners. In 1976,

the Warden of Old Max, after consultation with Governor

Lamm, discontinued a number of inmate self-help groups at

Old Max, including the Black Cultural Development Soci-

ety, the Latin American Development Society, the Progress-

ors, each of whose membership ranged from 100-200 prison-

ers. In 1977, officials discontinued the Alcoholics Anony-

mous Study Group which involved 234 prisoners. Later, the

officials banned the inmate council and discontinued the

inmate radio station and the inmate newspaper. None of

these jobs or activities has been reinstated or replaced.

A-71

The majority of prisoners at Old Max are unemployed.

Such unemployed inmates in the general population are

referred to as “transitional workers” or “TWs.” These prison-

ers are eligible for jobs but are not assigned only because

there are no jobs available. Even though TWs are not so

assigned for disciplinary violations, they are forced to re-

main in their cells at least 20 hours a day. Not only are they

denied employment opportunities, but because they are not

workers, they are denied access to any constructive or pro-

ductive activities such as hobbies or crafts and drug and

alcohol treatment groups. Essentially, they are subject to

double punishment because no jobs are provided.

Over a hundred prisoners at Old Max are confined in

protective custody to escape the violent and unsafe condi-

tions in the general population. They are there for their own

safety, not because of misconduct. Even so, they are locked in

their cells for at least 20 hours a day, and allowed to leave

only for meals and showers, and for recreation twice a week.

Prison rules deny them the opportunity to participate in

employment, education, drug treatment programs, hobby

activities and religious programs. In recent months they

have had to forego one of the opportunities for recreation in

order to go to the canteen.

One of the nation’s leading experts in the field of correc-

tions, John P. Conrad, testified that an excessive number of

prisoners in protective custody is an indication of improper

administration and inadequate staff. There is no legitiznate

penological reason for denying these inmates access to jobs

and other constructive activity. The only reason for their

forced idleness is that there is inadequate staff to provide

protection outside the cells. That so many inmates are will-

ing to endure these conditions is an indication of the level of

concern for personal safety.

In short, many prisoners at Old Max are locked in their

cells for more than 20 hours a day. Largely because of inade-

quate resources, prison rules and regulations severely re-

strict the opportunity of many inmates to participate in the

few programs which do exist. The result is clear: only a small

number of inmates are involved in programs and the rest

spend their days confined in their cells with nothing con-

structive to do.

A-72

ISOLATION

A large number of prisoners are subjected to long-term

isolation under oppressive conditions of confinement. In cell-

house 3, prisoners are locked in their cells for more than 22

hours a day. They are not let out of their cells for daily

showers or daily exercise. They are prohibited from parti-

cipation in all programs. They are not allowed out of their

cells for meals. Inmates in cellhouse 3 are denied the most

rudimentary opportunity for human contact: treatment staff

rarely come to cellhouse 3 and the three guards who are

assigned to the cellblock rarely enter the celiblock areas to

talk to prisoners.

Many prisoners are placed in cellhouse 3 for administra-

tive reasons, not for punishment. Nonetheless, all prisoners

in cellhouse 3, even those who are there because of serious

mental problems, are treated in the same harsh and restric-

tive manner as those are being punished. While punitive

segregation is limited to specific lengths of time, administra-

tive segregation is not. The total lack of activity in cellhouse

3 increases frustration and stress and causes mental and

physical deterioration.

Defendants have done little or nothing to reduce the

large numbers of prisoners in administrative segregation or

to create opportunities for constructive activity. In fact, the

number of inmates in administrative segregation has in-

creased to the point that a second unit has been created in

cellhouse 7.

EMPLOYMENT

The State of Colorado has placed a clear statutory duty

on the defendants to “assume responsibility for training

offenders in general work habits, work skills, and specific

training skills that increase their employment prospects

when released,” “to develop industries that provide forty

hours of work activity each week for all able-bodied offend-

ers,” and “to provide an environment for the operation of

correctional industries that closely resembles the environ-

ment for the business operations of a private, corporate enti-

ty.” C.R.S., § 17-24-102 (a) (b) (c) (d) (1978).

A-73

Despite this duty, the majority of prisoners at Old Max

do not participate in work and training programs. On July 1,

1978, less than “4 of the prisoners at Max (206 out of the 847

prisoners) were assigned to jobs. As of June 4, 1979, nearly

400 prisoners were completely idle.

The industries program does not have sufficient staff to

operate. Even though Old Max houses half of the prisoners

who are incarcerated in the Colorado prison system, the

Department has assigned only 13 of its 167 correctional

industries staff to the production industries program at Old

Max. Staff shortages have adversely affected prisoners in

working status since staff cutbacks have resulted in prison-

ers spending more idle time in their cells.

There are very few production shops at Old Max. The

shops which exist — tag plant, sign shop, print shop,

machine shop, carpentry/furniture shop — employ few pris-

oners. Other jobs are primarily maintenance, clerical and

“porter” jobs which do not keep prisoners busy and do not

develop job skills. Industrial shops at Old Max are limited by

a lack of qualified and trained personnel, old equipment

which frequently breaks down, a lack of materials and a lack

of stock and inventory. None of the industries shops offer

journeyman or trade certificates. Not all shop supervisors

are certified as vocational training instructors.

Defendants have not made any significant effort to cre-

ate new industrial jobs for prisoners at Old Max. In the last

three years, defendants have started only one new shop.

Only two prisoners have been assigned to this shop since it

opened. There is no formal follow-up to see if prisoners em-

ployed in prison industries are actually placed in private

industry upon release.

There is little or no systematic training oriented to em-

ployment and no indication of joint planning and program

development between correctional industries, vocational

education and academic education. There is no overall pro-

gram of vocational education and on-the-job training which

extends from the classroom through work release opportuni-

ties and parole. There is no vocational training offered.

: A-74

As previously stated, prisoners who are unemployed

because no jobs are available are denied opportunities to

participate in other productive activities because they are

not employed. Unemployed or under-employed prisoners in-

crease security problems for the staff. Gambling, alcohol and

drug abuse, and fights fill the void created by the idleness.

Unemployment and idleness could become even worse

at the new facilities. There are presently no firm plans for

industry programs at New Max. The Department does not

plan to move the existing tag plant, sign shop, print shop,

machine/welding shop or the furniture shop to New Max.

The Department intends to keep industry row at Old Max

operating until the shops generate enough profit to support

construction of industrial shops at New Max. However, the

Department does not plan to permit prisoners at New Max or

the new close security prison to be transported to Old Max to

work in the interim. The Department estimates that at least

a third of the prisoners at New Max will be ineligible for jobs,

and that another third will be in protective custody. Jobs

have not been developed for those in protective custody,

elthough there has been some mention of possible “cottage

industries” for such inmates. It has also not developed

enough jobs for those prisoners at Old Max who are expected

to move to the new close security prison.

EDUCATION

Deparlinent statistics indicate that 75-85% of the pris-

oocrs at the penitentiary lack a high school diploma. The

average reading level of prisoners is 7th-8th grade level.

Nonetheless, educational programs at Old Max are totally

inadequate. Education has no priority in the Department of

Corrections. The education department is most conspicuous

by its absence. It suffers from lack of teachers, lack of funds,

lack of space and lack of supplies. There is only one full-time

civilian teacher at Old Max for a population of 800-900

prisoners. The other teacher who is assigned to the school

spends little or no time teaching prisoners. The education

department has a budget of $6,000, half of which has been

diverted to other departments. In early 1979, the school did

not have basic supplies such as pencils, paper, chalk and

textbooks. a

A-75

Hardly any inmates are given the opportunity to par-

ticipate in educational programs. All prisoners in celihouses

3 and 4, and all inmates in punitive segregation, administra-

tive segregation and protective custody are totally excluded

from educational programs. Prisoners with jobs are not per-

mitted to participate in daytime educational programs.

Even prisoners’ eiforts for self-improvement have been

severely limited and inhibited. There are no areas for study,

either in the classroom area or elsewhere within the max-

imum security prison; most study must take place in inmate

cells under the most adverse circumstances without ade-

quate lighting, space or quiet for reading. The prison does

not provide prisoners with funds for correspondence courses.

At the time this suit was commenced, there was no general

library at Old Max. One is presently planned but existing

books are stored in a basement. Programs to encourage use

of library books are nonexistent. Even though the Colorado

State Librarian has a duty to provide general library ser-

vices to prisoners at Old Max, there was no provision for a

professional librarian or library services. C.R.S., § 24-90-107

(a) (1973). No volunteers are used anywhere in the insti-

tution.

RECREATION

Recreation programs are important because they allow

prisoners to release stress and avoid deterioration. Old Max

does not have a sufficient number of recreational programs

and opportunities for prisoners. Recreation programs princi-

pally consist of offender initiated athletic activities which

are monitored by the recreation staff. They are clique

oriented and serve to restrict the use of the gym and athletic

equipment to a limited number of offenders. Non-athletic

programs are almost non-existent. Access to the gym is lim-

ited. It is closed every day from 1 - 3 p.m. and entirely closed

on Friday, Saturday and Sunday evenings.

Officials offer little in the way of programmed activities

to combat boredom and idleness. The few group activities

which are offered are restricted in number to 15 prisoners. In

1976, groups and community programs were open and mem-

berships usually included from 60-100 prisoners. The only

A-76

group activities offered consist of a bi-monthly discussion

group for 15 prisoners every other Monday night, an Alco-

holics Anonymous group for 15 prisoners on Wednesday and

Friday nights, and a Narcanon group for narcotics addicts on

Thursd

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