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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981

## Text

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

A-29
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.

A-30

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.

A-31

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
co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1298%3A2. Public record. Not legal advice.