Record and brief — Hall v. Blake

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Office Supreme Court, U.S.

81-1730 FILED

No. * 9 =

ome" STEVAS.

In the

Supreme Court of the United States

Ocroser Term, 1981

FRANK A. HALL, et al.,

PETITIONERS,

v.

ALBERT BLAKE, et al.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Francis X. BELLoTTI

Attorney General

Lee Car. BroMBeErc

Special Assistant

Attorney General

BroMBERG, SUNSTEIN & McGrecor

31 Milk Street

Boston, Massachusetts 02109

(617) 426-6464

Blanchard Press, Inc. Boston. Mas. Law Printers

I

QUESTIONS PRESENTED

1. Where a jury in an action under 42 U.S.C. § 1983 has

found that defendant state officials are not liable for violation

of Eighth Amendment rights of plaintiff prisoners by reason of

conditions in a maximum security prison, may an appellate

court rule that equitable relief from these conditions is

nonetheless available?

2. Must the conduct of plaintiff prisoners in sabotaging

their living quarters be disregarded in determining whether

conditions thus created denied them rights under the Eighth

Amendment?

PARTIES

Petitioners are Frank A. Hall and Larry R. Meachum,

former Commissioners of Correction in Massachusetts, and

Frederick A. Butterworth, former Superintendent of

Massachusetts Correctional Institution Walpole (hereinafter

M. C. I. Walpole”).

Respondents are Albert Blake, David Aquafresca, Ralph

Hamm, Gregory Davis, James Connors and Patrick Rahilly,

all prisoners at M.C.I. Walpole, and a class consisting of all

present inmates of M.C.I. Walpole and inmates of recent

years (1975-1979).

TABLE OF CONTENTS

Page

, ͤ QA... I

/// ²˙.%—cV I

,,,, ̃ ͤ A... ... 1

r ˙ ł“—— 1 2

Constitutional and Statutory Provisions Involved. 2

, mg 2

Reasons for Granting the Write. 6

I. The Decision of the Court of Appeals Is in Con-

flict With Decisions of This Court. 6

A. Seventh Amendment Right to Jury Trial in

D 6 5 i 6 1 acb wa es od bo 40 veo 6

B. Elements of Liability Under Section 1983 9

II. The Ruling Below That Prisoner Misconduct

Must Be Disregarded in Evaluating an Eighth

Amendment Conditions Claim for Equitable

Relief Presents a Substantial Issue of Great

Importance to Prison Administration and to the

Lower Federal Courts..................... 11

TABLE OF AUTHORITIES

Cases:

Baker v. McCollan, 443 U.S. 137 (1979)............... 9

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)

ö 6, 7, 8

Bell v. Wolfish, 411 U.S. 520 (197901999. 12

Caputo v. U.S. Lines Company, 311 F.2d 413 (2d Cir.

e / „„ „c 9, 10

IV

Page

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) 7

Dolence v. Flynn, 628 F. 2d 1280 (10th Cir, 1980)....... 8

Esteile v. Gamble, 429 U.S. 97 (1976)... .. : 9

Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963) 7

Monell v. New York City Department of Social Services,

, I 9

Parratt v. Taylor, U.S. , 101 S. Ct. 1908 (1981) 9

Polk County v. Dodson, — U.S. , 102 S.Ct. 445 (1981) 9

Rhodes v. Chapman, __ U.S. __, 101 S. Ct. 2392 (1981)

CCC „bee 9, 13

Rizzo v. Goode, 423 U. S. 362 (197 0)) 9

Ross v. Bernhard, 396 U.S. 531 (197 ũnꝛtr 7

Constitutional Provisions:

U.S. Constitution,

4 4 2, 6, 7, 8, 10

Amendment VIII........ e 2, 7, 8, 11, 12

Statutes:

cory cece acces ons rancid ests 2

§§1331(a), 1343(3) and () 2

. i, 2, 6, 7, 8, 9, 10, 11, 12

Miscellaneous:

Turner, When Prisoners Sue: A Study of Prisoners 51983

Suits in the Federal Courts, 92 Harv.L.Rev. 610 (1979) 9

9 C. Wright & A. Miller, Federal Practice & Procedure

,, ̃ cis p ots aaeeeaen § 7

In the

Supreme Court of the United States

Ocroser Term, 1981

No.

FRANK A. HALL, et al.,

PETITIONERS,

U.

ALBERT BLAKE, et al.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioners, Frank A. Hall, et al., respectfully pray that

a writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the First Circuit

entered in this proceeding on December 18, 1981.

Opinions Below

The opinion of the Court of Appeals dated December 18,

1981, not yet reported, appears as Appendix A hereto. The

findings of fact and conclusions of law of the District Court,

dated September 5, 1980, are unreported and appear as Ap-

pendix B hereto.

2

Jurisdiction

The judgment of the Court of Appeals for the First Circuit

was dated and entered on December 18, 1981, and this peti-

tion for certiorari was filed within 90 days of that date. This

Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

This case involves the Seventh Amendment to the United

States Constitution, the Eighth Amendment to the United

States Constitution, and the Civil Rights Act, 42 U.S.C.

§ 1983, each of which is set out, verbatim, in Appendix C

hereto, p. A-27.

Statement of the Case

Respondents are inmates at M.C.I. Walpole who claimed

below that sanitary conditions at M.C.I. Walpole violated

their rights under the Eighth Amendment. They sued pur-

suant to 42 U.S.C. § 1083 and claimed jurisdiction pursuant to

28 U.S.C. §§ 1331(a), 1343(3) and (4). Named as defendants in

this suit were petitioners krank A. Hall, the former Commis-

sioner of Correction, Larry R. Meachum, the Commissioner oi

Correction at the time of trial, and Frederick A. Butterworth,

the former Superintendent of M.C.I. Walpole. The prisoners

sought class action certification, $10,000,000.00 in damages,

and extensive equitable relief. Shortly before trial, the Court

below certified a class consisting of present M.C.I. Walpole in-

mates and inmates of recent years, for purposes of determining

liability, but not for purposes of assessing damages. In the

event of liability, individual damage claims were to be

presented at a severed trial before a second jury. After a trial

lasting four weeks, in which they heard testimony from

twenty-six witnesses, including members of the plaintiff class,

3

all three defendants and numerous experts, the jury returned a

verdict in favor of the three defendants. One year later, the

district judge, in a ruling consistent with the jury verdict of no

liability, denied plaintiffs’ claims for injunctive relief. The

prisoners appealed, claiming they were entitled to equitable

relief notwithstanding the jury verdict. The Court of Appeals

for the First Circuit held that equitable relief was not fore-

closed by the jury verdict, and that the trial court was not per-

mitted to consider the conduct of prisoners in determining

whether an Eighth Amendment violation was present.

The evidence at trial showed that M. C. I. Walpole is a large

maximum security facility opened in 1955 with a capacity for

666 inmates, and an average inmate population of approxi-

mately 600 at the time of trial. Walpole has 13 cell blocks plus

two small cell areas, the New Man Section and the infirmary.

Each inmate has his own cell, fully furnished with plumbing,

bedding, clothing and articles for personal maintenance and

for cleaning. Of the 13 cell blocks, four (blocks Al-A4) house

medium security inmates, two (blocks B6 and B7) house recent

arrivals awaiting classification, two (blocks A6 and B9) house

protective custody inmates, four (blocks B1-B4) house maxi-

mum security inmates, and one (block 10) houses inmates

whom the administration regards as the most disruptive,

violent and difficult to control. The evidence concerning

sanitation problems focused upon the maximum security

blocks, blocks B1, B2, B3 and B4, and block 10. There was also

evidence concerning sanitation in the food service area. In ad-

dition to a kitchen, food storage area, dining hall and inmate

canteen, Walpole also has outdoor recreation yards, a gym-

nasium, indoor recreation rooms, and places for program ac-

tivities. A law library and regular library are provided. The

prison also contains visiting rooms, an avocation area, a laun-

dry, a barbershop, shop and industrial areas, an auditorium

and chapels. There are administrative offices and security

facilities. Walpole has its own power plant and maintenance

facilities.

4

The evidence showed that inmates in all parts of M. C. I.

Walpole are provided with a) a high quality, nutritous diet; b)

adequate shelter including heat, light and ventilation; o) a

fully furnished private cell; d) excellent medical care; e) a full

range of institutional clothes, bedding supplies, laundry ser-

vices, personal hygiene supplies and cleaning supplies; f) a

sound classification system which permits them to move to

lower custody status where appropriate; g) sound security pro-

cedures which restrict the movement of the more disruptive,

violent inmates to protect the personal safety of all members of

the prison community; h) regular indoor and outdoor exercise;

i) a full range of visiting, correspondence, telephone and per-

sonal property privileges; j) ready access to attorneys and a law

library; x) religious counseling and services; |) a wide array of

programs, activities and avocational opportunities; and m) job

opportunities for large numbers of men.

In substance the evidence showed that M. C. I. Walpole has

varying levels of custody, that freedom of movement and

degree of privileges depend upon the level of custody, and that

inmates are transferred from one custody level to another by

the classification system on the basis of their record and

behavior. The evidence showed that most of M. C. I. Walpole

is maintained in a relatively clean and sanitary condition and

that heavy reliance is placed upon inmate janitorial crews.

The evidence also showed that some blocks had repeated

sanitary problems because the inmate residents threw trash,

debris, food and excrement on the walls and floors, refused to

perform clean-up tasks and obstructed efforts to keep their

own living quarters clean. The evidence also showed that

prison officials made daily efforts to control the sanitary prob-

lems created by the inmates, by imposing appropriate

disciplinary measures, by transferring out trouble makers, by

encouraging the inmates to maintain the cleanliness of their

blocks, and by engaging in periodic thorough cleaning of areas

that had developed severe sanitation problems.

5

On appeal, the Court of Appeals for the First Circuit held

that the jury verdict of no liability did not preclude equitable

relief, in the following analysis:

“Under these instructions, which have not been appealed,

the jury could have made three findings in reaching its

verdict: (1) that there were no constitutional violations;

(2) if there were unconstitutional conditions, they were

not caused by the deliberate or reckless conduct of the

defendants; and (3) if there were unconstitutional viola-

tions, they were caused or substantially caused by the

plaintiffs themselves. The jury could, of course, have

reached all three conclusions. But the general verdict of

no liability precludes further analysis. The district judge

was not bound by the jury verdict in determining

whether equitable relief should issue because there was

no way to determine what common issues were decided

by the jury.”

[Footnote omitted.] (p. A-3, infra).

In reviewing the findings of fact and conclusions of law

issued by the District Court judge a year after the jury verdict,

the Court of Appeals ruled that “there was sufficient

evidence” for the District Court’s finding that conditions did

not transgress constitutional requirements. However, the

Court of Appeals expressed concern that the District Court

“might have premised its ruling that the cell block conditions

did not amount to cruel and unusual punishment on the fact

that the prisoners caused or contributed to cause the condi-

tions themselves.” The Court of Appeals then went on to hold:

“Although we would agree that in an action for damages

the conduct of the plaintiffs-prisoners might bar them

from recovering, we do not think that, under the facts

here, the conduct of the prisoners was a factor to be con-

sidered in determining whether the cell block conditions

amounted to cruel and unusual punishment.”

6

The Court of Appeals ordered a remand for an assessment by

the District Court of whether its denial of equitable relief with

respect to conditions in the blocks was independent of any con-

sideration of conduct by the plaintiffs-prisoners. The Court of

Appeals also remanded to the District Court for reconsi ra-

tion of its denial of equitable relief with respect to the housing

of prisoners in the New Man's Section.

Reasons for Granting the Writ

I. Tur Decision or THE Court or ApPpEALs Is Id CONFLICT

Wrru Decisions or THis Court.

The ruling by the Court of Appeals that “the general verdict

of no liability precludes further analysis” and that equitable

relief was not foreclosed “because there was no way to deter-

mine what common issues were decided by the jury” is

squarely in conflict with two lines of cases decided by this

Court on principles of great public importance. On the one

hand, dismissal of the jury verdict by the Court below clashes

with this Court’s rulings on the dimensions cf the Seventh

Amendment right to jury trial in civii matters. On the other

hand, the Court of Appeals’ finding of equitable liability

notwithstanding the jury determination of no liability con-

flicts with the decisions of this Court establishing principles for

determination of liability in actions under 42 U.S.C. § 1983.

A. Seventh Amendment Right to Jury Trial in Civil

Matters.

This Court’s landmark decision in Beacon Theatres, Inc. v.

Westover, 359 U.S. 500 (1959), made it clear that in a case in-

volving both legal and equitable claims, the legal claims had to

be tried first to a jury in order to preserve the rights of the

parties to a jury trial under the Seventh Amendment. Subse-

7

quent cases have stressed the policy of the Seventh Amend-

ment favoring jury determination of common issues. Dairy

Queen, Inc. v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard,

396 U.S. 531 (1970); Fitzgerald v. United States Lines Co.,

374 U.S. 16 (1963). As a leading commentator has put it: “The

controlling principle of the Beacon Theatres case is the desire

to protect jury determination of common issues.” 9 C. Wright

& A. Miller, Federal Practice & Procedure Civil § 2338, at 136

(1971).

In the instant litigation plaintiffs pressed their claim under

42 U.S.C. § 1983 for both legal and equitable relief on the

ground that their rights under the Eighth Amendment had

been violated. The factual issues relevant to a finding of

liability under § 1983 are identical, irrespective of whether

legal or equitable relief is sought. Here the evidence presented

with respect to legal and equitable relief was taken

simultaneously by the Court and jury. 42 U.S.C. § 1983 reads:

“Every person who, under color of any statute, ordinance,

regulation, custom or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the

United States or other persons within the jurisdiction

thereof to the deprivation of any rights, privileges or im-

munities secured by the Constitution and laws, shall be

liable to the person injured in an action of law, suit in

equity, or other proper proceeding for redress.” (Em-

phasis added.)

It is plain that the plaintiffs must prove the same elements to

establish a right to either legal or equitable relief under this

statute. It is equally clear that the sweeping jury verdict in

favor of all defendants established that the plaintiffs had not

proved deprivation by defendants and hence precluded any

grant of equitable relief.

In its carefully worded charge to the jury, which plaintiffs

did not chalienge on appeal, the District Court said that in

order to recover, plaintiffs had to prove a deprivation of

Eighth Amendment rights by one of the defendants. The

deprivation had to be the result of deliberate conduct or the

reckless failure to act. The jury was further instructed that

they had to find a causal relation between the conduct and a

deprivation of constitutional right. In that connection, the

jury was instructed that if plaintiffs had deliberately created

or substantially contributed to the conditions alleged to be

unconstitutional, they could not recover.

Under this instruction, the jury verdict for the defendants

constitutes a determination that (a) conditions at M. C. I.

Walpole do not fall below the constitutional standard, or (b)

whatever the conditions, defendants did not cause them, or (c)

both. Hence even if the verdict is interpreted at its narrowest,

the jury determined that there had been no deprivation of

rights caused by defendants. Since a deprivation by defen-

dants is an essential element to a claim for any kind of relief

under the statute including equitable relief, and since the

Court was bound by the jury determination of common issues,

the Court was required to deny equitable relief.

The ruling by the Court of Appeals that equitable relief was

available notwithstanding the jury’s verdict deprived defen-

dants of the jury determination in their favor on the basic

§ 1983 claim in derogation of their rights under the Seventh

Amendment, and in conflict with the principles established by

this Court in Beacon Theatres and its progeny. The ruling by

the Court of Appeals directly conflicts with this Court's

holding that a defendant's right to jury trial in an action under

a federal civil rights statute must be preserved. Curtis v.

Loether, 415 U.S. 189 (1974). The ruling below is also in con-

flict with decisions in other circuits which have recognized the

clear right to a jury trial in § 1983 cases, Dolence v. Flynn, 628

F.2d 1280 (10th Cir. 1980), and that a trial court in assessing

9

equitable relief is bound oy a jury’s general verdict determin-

ing common issues. Caputo v. U.S. Lines Company, 311 F.2d

413 (2d Cir. 1963). This Court should grant certiorari to

resolve these conflicts.

The importance of the jury trial issue in the administration

and enforcement of prisoner § 1983 cases also weighs in favor

of granting certiorari. Thousands of claims under § 1983 are

filed each year by prisoners. See Turner, When Prisoners Sue:

A Study of Prisoners § 1983 Suits in the Federal Courts, 92

Harv.L.Rev. 610 (1979). And “[t]here are over 8,000 pending

cases filed by inmates challenging prison conditions.” Rhodes

v. Chapman, __ U.S. —, 101 S.Ct. 2392, 2402, n.2 (1981)

(Brennan, J., concurring). Clarification of the jury’s role in

prisoner § 1983 suits challenging prison conditions would

greatly facilitate the handling of these cases in the lower

courts.

B. Fiements of Liability Under Section 1983.

In recent decisions this Court has stressed the principle that

liability in a § 1983 case is established only where plaintiff

proves that deprivation of his federally protected rights was

caused by conduct of a defendant acting under color of state

law. Polk County v. Dodson, U.S. , 102 S. Ct. 445 (1981);

Parratt v. Taylor, — U.S. , 101 S.Ct. 1908 (1981); Baker v.

McCollan, 443 U.S. 137, 142 (1979); Monell v. New York City

Department of Social Services, 436 U.S. 658, 691 (1978); Rizzo

v. Goode, 423 U.S. 362, 370-77 (1976). Where violation of the

Eighth Amendment is alleged, more than mere negligence

must be proven to establish the liability of defendant state of-

ficials. Estelle v. Gamble, 429 U.S. 97 (1976). Similarly,

where state prisoners complain about conditions of confine-

ment, the requisite link between alleged deprivations and con-

duct by the state officials must be established before plaintiffs

may prevail. Rhodes v. Chapman, U.S. , 101 S.Ct. 2392

(1981).

10

The ruling by the Court of Appeals below conflicts with the

principles for es:ablishing liability under § 1983 announced in

the decisions of this Court, since it held that equitable relief

was available notwithstanding the jury's finding of an insuffi-

cient nexus between alleged deprivations and actions by the

defendant state officials.

The ruling by the Court below that “the general verdict of

no liability precludes further analysis” (p. A. 3, infra) is simply

erroneous, and also in conflict with this Court’s cases

establishing the deference due to jury determinations consis-

tent with the Seventh Amendment, as discussed in Part I. A.,

supra. An examination of the record will disclose “what issues

were concluded by the general verdict of the jury.” Caputo v.

U.S. Lines Company, supra, 311 F.2d at 416. Here, under the

jury instructions below, the jury verdict exonerated the defen-

dants of liability under § 1983. Even read at its narrowest, the

general verdict determined that, because the contributory

misconduct of the plaintiff class was substantial, defendants

could not be held liable for a deprivation of plaintiffs’ constitu-

tional rights. The language of § 1983 itself and the decisions of

this Court interpreting the statute mandate proof by plaintiff

that claimed deprivations be caused by defendant's conduct.

The jury verdict in favor of the defendants resolved that issue

against plaintiffs below and hence extinguished their § 1983

claim to equitable relief as well as to damages. By permitting

equitable relief notwithstanding the absence of a sufficient

nexus between the alleged deprivations and defendants’ con-

duct, the Court of Appeals came squarely into conflict with

the principles announced by this Court in the above cases for

establishing liability in a claim under § 1983. Certiorari

should be granted to resolve the conflict.

11

II. Tur RUN BeLow Tuat Prisoner Misconpuct Must Bx

DISREGARDED IN EVALUATING AN EIGHTH AMENDMENT

ConprtTions CLAIM FoR EguiraBLe RELIEF PRESENTS A

SUBSTANTIAL IssuE oF GREAT IMPORTANCE TO PRISON

ADMINISTRATION AND TO THE LOweER FeEpERAL Courts.

The Court of Appeals squarely held that the conduct of the

plaintiff prisoners in creating unsanitary conditions in their

cell blocks could not be considered in evaluating whether a

violation of the Eighth Amendment had been made out by

reason of such conditions. See pp. A-9-A-12, infra. Petitioners

submit that this ruling is both wrong and of great importance

to prison administration and to the lower federal courts.

The ruling by the Court of Appeals is inconsistent with the

doctrine applicable throughout tort law that contributory

misbehavior by the plaintiff is relevant to liability. At the least,

the plaintiff's behavior ha: a bearing on the ultimate question

whether the causal connection between the defendant’s act

and the plaintiff's injury is sufficiently close to justify liability.

The decisions of this Court cited in Point I. B., supra, maxe it

clear that liability under § 1983 is similarly dependent upon

showing a sufficient nexus between the alleged deprivation

and conduct by the defendants. Plaintiffs’ behavior is almost

inevitably relevant to the determination of defendants’ lia-

bility, and to rule that it may not be considered, as the Court

of Appeals did below, is clearly erroneous. The evidence at the

trial below which persuaded both the jury and the District

Court judge, showed energetic and continuous efforts by staff

under the supervision of the defendant state officials to main-

tain sanitary conditions in the cell blocks, and periodic activity

by some of the prisoners to sabotage these efforts, with the

result that sanitary problems persistently reappeared in some

cell blocks. On this evidence there was plainly insufficient

nexus between the conduct and responsibilities of the defen-

dant state officials and the conditions complained of to estab-

12

lish liability under § 1983 for violation of the Eighth Amend-

ment. Parratt v. Taylor, U.S. , 101 S.Ct. 1908 (1981); Cf.

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

Moreover, the rule announced by the Court of Ap-

peals—that prisoner conduct must be disregarded in

evaluating the right to equitable relief in Eighth Amendment

conditions suits—contradicts this Court’s admonition that

courts must defer to prison authorities “in the adoption and

execution of policies and practices that in their judgment are

needed to preserve internal order and discipiine and to main-

tain institutional security.” Bell v. Wolfish, 411 U.S. 520, 547

(1979). The record below makes it clear that actions taken and

policies followed by the defendants were in response to prob-

lems created by the behavior of the plaintiff class. Where

prison officials have done everything in their power to control

prison conditions and sanitation problems persist due to the

conduct of the prisoners, court intervention is inappropriate.

On a theoretical plane, there is no basis for liability under

§ 1983 as discussed in Point I.B., supra. On a pragmatic level,

it is inappropriate for a court to order the prison adminis-

trators to take action which they have already taken.

Factual distinctions are of course important. Where, for ex-

ample, prisoners sabotage the heating system, the conduct of

the prisoners, though relevant to the availability of equitable

relief, is not conclusive. Prison officials must restore this essen-

tial requirement of adequate housing promptly. If they do so,

prisoners will have no § 1983 claim. However, if prison of-

ficials fail to remedy the heating problem within a reasonable

tiine, prisoners may have a valid § 1983 claim even though it

was prisoner vandalism that first created the problem. Sanita-

tion is also essential to adequate housing. However, it involves

a more amorphous problem subject to daily variations. Con-

tinuing prisoner sabotage is highly relevant to a determination

of whether court intervention is necessary or justified. Where

poor sanitation is due to “negligent omissions of officials who

13

lack the resources or motivation to operate prisons within

limits of decency,” Rhodes v. Chapman, __ U.S. , 101 S.Ct.

2392, 2407 (1981) (Brennan, J., concurring), then equitable

relief will be appropriately afforded. However, where prison

officials exhibit strong motivation and apply sufficient

resources to address the problem, yet sanitation problems per-

sist due to deliberate prisoner sabotage, the behavior of the

prisoners is highly relevant to a determination whether court

intervention is necessary or appropriate.

A ruling that prisoner behavior is immaterial to the

avaiiability of court-ordered changes in prison conditions is of

great importance to prison administration. The prison en-

vironment, particularly at a maximum security institution, of

necessity involves an uneasy equilibrium between the require-

ment for control by prison staff and the need for a modicum of

self-respect on the part of prisoners. The product of these

forces is a power struggle, sometimes subtle, sometimes

violent. A rule of law that prisoner behavior is immaterial to

coi. ditions suits will detract from the ability of prison ad-

ministrators to insist upon cooperation by the inmates,

however grudging, in maintaining tolerable conditions within

the prison. Particularly at the present time, when prison

populations are experiencing an unprecedented upsurge

nationwide, Rhodes v. Chapman, supra, 101 S.Ct. at 2404, it

is important for prison officials and for all members of the

prison community to have a clear ruling from this Court on

whether any weight will be given to prisoner conduct in

evaluating conditions claims. Since ,t}here are over 8,000

pending cases filed by inmates challenging prison conditions,”

Id., 101 S.Ct. at 2402, n.2, resolution of this issue is also im-

portant for the guidance of the lower federal courts.

14

Conclusion

For the foregoing reasons, a writ of certiorari should issue to

review the judgment and opinion of the United States Court of

Appeals for the First Circuit.

Respectfully submitted,

Francis X. BELLOTTI

Attorney General

Lee CARL BROMBERG

Special Assistant

Attorney General

BROMBERG, SUNSTEIN & MCGREGOR

31 Milk Street

Boston, Massachusetts 02109

(617) 426-6464

Dated: Boston, Massachusetts

March 17, 1982

pus

A-l

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 80-1792

ALBERT BLAKE, ET AL.,

PLAINTIFFS-APPELLANTS,

v.

FRANK A. HALL, ET AL.,

DEFENDANTS-APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joux J. McNaucurt, U.S. District Judge

Before

Albmch, CAMPBELL and Bowness, Circuit Judges.

Judith A. Stalus, with whom Norman Zalkind and Michael Avery

were on brief, for appellants.

Lee Carl Bro , Special Assistant Attorney General, with

whom Francis X. tti, Attorney General, and Bromberg, Sun-

stein & McGregor were on brief, for appellees.

December 18, 1981

Bow Nxs, Circuit Judge. Plaintiffs-appellants, inmates at the

Massachusetts Correctional Institution Walpole (Walpole),

brought a 42 U.S.C. § 1983 civil rights class action alleging

that the conditions of their confinement amounted to cruel

and unusual punishment. Declaratory and injunctive relief, as

well as damages, were sought. Named as defendants were

Frank A. Hall, former Commissioner of Correction, Larry R.

Meachum, Commissioner of Correction at the time of trial,

A-2

and Frederick A. Butterworth, former Superintendent of

Walpole. The damages case was tried to a jury which returned

a verdict in favor of the three defendants.

The judge, a year after the verdict, issued a written opinion

finding no constitutional violations and denying injunctive

relief.

The main issue on appeal is whether the evidence of condi-

tions at Walpole compelled a finding of cruel and unusual

punishment either as to the entire institution or as to certain

sections of it. The attack on the jury verdict is confined solely

to the claim that plaintiffs’ motion for judgment notwith-

standing the verdict should have been granted. There is one

related issue: whether the court should have amended its find-

ings of fact and judgment and received new evidence in regard

to a section of Walpole (New Man's Section).

We start with defendants’ contention that the seventh

amendment required the district judge to accept as binding

the findings of fact made by the jury in reaching its verdict.

The landmark case in the joint law-equity trial area is Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959). In Beacon

Theatres, the Court stressed the importance of the jury as a

fact-finding body and held that, although the complaint

sought only declaratory and injunctive relief, because the

counterclaim demanded a jury trial of the factual issues, the

jury issues had to be tried first. The Court was concerned that

if the equitable issues were decided first by the trial judge, the

defendant’s seventh amendment right to a full jury trial of the

counterclaim might be foreclosed by the doctrine of collateral

estoppel. “The controlling principle of the Beacon Theatres

case is the desire to protect jury determination of common

issues.” 9 C. Wright & A. Miller, Fed. Prac. & Proc. Civil §

2338, at 136 (1971). The problem in this case is determining

what issues were decided by the jury in reaching its verdict.

The charge instructed the jury in effect as follows. In order to

recover, plaintiffs had to prove a deprivation of a constitu-

A-3

tional right by one of the defendants. Such deprivation had to

be the result of deliberate conduct or the reckless failure to act.

The jury was also instructed that if plaintiff had deliberately

created or substantially contributed to causing the unsanitary

conditions (garbage and filth, including human excrement on

the floors and walls of the cell blocks), which they alleged

were unconstitutional, they could not recover.

Under these instructions, which have not been appealed,

the jury could have made th: ee findings in reaching its verdict:

(1) that there were no constitutional violations; (2) if there

were unconstitutional conditions, they were not caused by the

deliberate or reckless conduct of the defendants; and (3) if

there were unconstitutional violations, they were caused or

substantially caused by the plaintiffs themselves. The jury

could, of course, have reached all three conclusions. But the

general verdict of no liability precludes further analysis. The

district judge was not bound by the jury verdict in determin-

ing whether equitable relief should issue because there was no

way to determine what common issues were decided by the

jury.“

We turn now to the main issue of whether conditions at

Walpole compelled a finding of cruel and unusual punishment

either as to the institution or sections of it. We review the facts

and all the reasonable inferences to be drawn from them in the

light most favorable to the defendants. Hawkins v. Hall, 644

F.2d 914, 915 (Ist Cir. 1981). And, “[flindings of fact shall not

be set aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge of the

credibility of the witness.” Fed. R. Civ. P. 52(a).

Even in a prison setting, there are no rigid standards as to

what does and does not amount to cruel and unusual punish-

ment. Penal measures must be evaluated against “broad and

idealistic concepts of dignity, civilized standards, humanity

and decency” and “the evolving standards of decency that

' The opinion of the district judge does not suggest in any way that he felt

bound by the jury verdict.

A-4

mark the progress of a maturing society.” Estelle v. Gamble,

429 U.S. 97, 102 (1976), quoting Jackson v. Bishop, 404 F.2d

571, 579 (8th Cir. 1968), and Trop v. Dulles, 356 U.S. 86, 101

(1958). In Hutto v. Finney, 437 U.S. 678, 685 (1977), the

Supreme Court held that the punishment must not be grossly

disproportionate to the offense and must not offend society's

evolving sense of decency. This circuit has applied these two

benchmarks for determining whether prison conditions

violated the eighth amendment in Hawkins v. Hall, 644 F.2d

at 917, and Nadeau v. Helgemoe, 561 F. 2d 411, 413 (Ist Cir.

1977).

The gravamen of the complaint is that the unsanitary and

filthy conditions of Walpole compounded by inadequate

lighting, heating and ventilation, amount to cruel and unusual

punishment. Plaintiffs’ evidence depicted Walpole as a

charnel house out of the middle ages. Although defendants did

not suggest that the prison was a rose garden, their evidence

was that, while there was definite room for improvement,

conditions did not violate eighth amendment standards.

Before summarizing the evidence, it is necessary to describe

the prison. Walpole is not an old facility compared to many

state prisons. It was opened in 1955 with a capacity for 666 in-

mates. At the time of trial, there were 580 prisoners; the

average population is about 600.

There are thirteen cell blocks plus two small cell areas, the

New Man's Section and the infirmary.* Each inmate has his

own cell which is furnished with a bed, bedding, mattress,

table, chair, a sink with hot and cold running water and a

toilet. The prisoners are classified into different groups and

each group is assigned to separate cell block areas.

Blocks Al-A4 house medium-security inmates. There are a

total of 261 Ils. Blocks Al, A2 and A3 are each rectangular

with the cells located along two exterior walls. There are three

tiers of cells consisting of twelve cells to a tier on each side of

* The infirmary cell block is not a factor in the case.

A-5

the central area of the block which is known as the “flats.” The

cells on the second and third tiers open onto a catwalk with

stairways going down to the “flats.” Each cell has a window in

the exterior wall looking outside onto the prison grounds. A

solid steel door with a small observation window opens to the

central area of the block. Block A4 has three tiers of fifteen cells,

each along an interior wall, facing a blank wall with an of-

ficer's observation gallery. These cells have three solid sides

with a grille door facing onto the flats. Ventilation is supplied

by a combination heat and air circulation system.

Cell Blocks B6 and B7 are occupied by those inmates who

have recently arrived at Walpole and have not yet been

classified. Each block contains forty-five cells and is identical

to Block A4.

Maximum security inmates are housed in Blocks BI — B4.

Each block has forty-five cells arranged in three fifteen-cell

tiers identical in layout and construction to Blocks A4, B6 and

B7.

Block 10 contains those inmates whom the administration

believes to be the most disruptive, violent and difficult to con-

trol. It consists of four tiers of fifteen cells each, two tiers back-

to-back on the ground level, and two tiers above them. The

upper tier cells have three solid walls and a grille door opening

onto the central corridor. The lower level cells have a solid

steel door with an observation window that closes over the

grille door.

Protective custody inmates, those who fear physical harm

from other prisoners, are housed in Blocks A6 and B9. Block

A6 is identical to Blocks BI, B4, BG, B7 and A.4. Block B9 has

an upper and lower level. The lower level consists of three

five-cell tiers. Each cell has three solid walls, a grille wall with

a grille door in it facing onto the corridor. The upper level has

two back-to-back tiers of ten cells each. Each cell has a grille

door in a solid wall and a solid steel door that can be closed

over the grille.

A-6

The New Man’s section is an eight-cell unit located beneath

the infirmary. It has no natural light or ventilation.

There are showers for each cell block.

Walpole also includes a kitchen, food storage area, dining

hall and inmate canteen. There are outdoor recreation yards,

a gymnasium, indoor recreation rooms and places for program

activities. A law library and regular library are provided. The

prison also contains visiting rooms, an avocation area, a laun-

dry, a barbershop, shop and industrial areas, an auditorium

and chapels. There are administrative offices and security

facilities. Walpole has its own power plant and maintenance

facilities.

We focus first on the sanitary conditions in the maximum

security section of Walpole, Blocks BI to B4 and Block 10,

because they were the worst in the prison. The testimony of

plaintiffs’ witnesses can be summarized as follows. Many of

the toilets in the cells had been broken and did not work. Sinks

in a number of cells were plugged up and did not drain pro-

perly, and many of them were broken and had sharp edges.

The floors and walls were caked with dirt, grime and human

excrement. The floors were so covered with garbage and

debris that it was difficult to walk on them. Because of leaks in

the roof, after a rainstorm the floors became wet and slimy.

Most of the plumbing fixtures in Block 10 were so old that cor-

rosion and layers of paint made cleaning impossible. Many

windows were broken and without screens. Because of poor

ventilation and the way the heating system worked, inmates

on the top levels were roasting while those on the ground level

were cold. The showers were filthy and moldy and they stank.

What shower curtains there were, were covered with slime

and grime. Howard Wenslev, Director of Regional Operations

for the State Department of Public Health, testified tliat these

blocks were unfit for human habitation, as did two other

expert witness called by plaintiffs, Wesley Eugene Profit and

Joseph G. Cannon.

A-7

Defendants admitted that sanitation in the maximum

security blocks was a continuing problem, but testified that

they were doing their best to cope with it. The unsanitary con-

ditions, according to defendants, were due mainly to openly

defiant inmates who threw paper, foud, garbage and their

own excrement on the floors and walls. A system of inmate

“runners” is used to keep the cell blocks clean. Four runners

per cell block have the duty to remove trash and keep the

floors, walls and shower facilities clean. Each inmate has the

responsibility for keeping his own cell and is furnished the

necessary materials to do so. This system has broken down

from time to time in the maximum security blocks. When this

happens and sanitary conditions become intolerable, a

“lockup” is imposed and correction officers try to clean up.

They have been impeded in their efforts to do so by inmates

who throw excrement, food, and garbage at them. Block 10

has been a particularly difficult problem because of its volatile

inmates. The runner system had to be abandoned some

months prior to trial; since then, correction officers have done

the daily cleaning. Sanitary conditions are dependent upon the

defiance mood of the inmates and, at times, the upper two

tiers of Block 10 were practically spotless. In 1978, Block 10 re-

ceived a thorough cleaning and repainting. At the time of

trial, the maximum security blocks were in the process of being

scraped, thoroughly cleaned, and repainted. All occupied cells

had plumbing in working order at the time of trial. Plumbing

repairs are made as promptly as possible, usually within

twenty-four hours. A capital outlay budget has been provided

to upgrade the plumbing system.

The evidence relating to other sections of the prison was also

conflicting. There was testimony of a rodent and cockroach in-

festation so severe as to pose a danger to health. This was

countered by testimony that the problem was not any worse

than that encountered in any large institution. Evidence of

continued health code violations in the kitchen and eating area

A-8

was met by testimony that this was not unusual in a facility of

this size and that no specific instances of disease, illness or acci-

dent due to code violations had occurred.

Plaintiffs’ evidence as to conditions in the New Man's Sec-

tion was, for the most part, uncontroverted. Its subterranean

location results in a complete lack of natural light and ventila-

tion. There was no mechanical ventilation. Water seeps

through the walls and ceilings, and sewage backs up

periodically. Plaintiffs’ expert, the Director of Regional

Operations for the Massachusetts Department of Public

Health, testified that the New Man’s Section was unfit for

human habitation and could not be made fit. There is no op-

portunity for out-of-cell or outdoor exercise for the inmates.

Defendants impliedly admitted to the existence of these condi-

tions by testifying that use of this section is severely restricted,

that it has been emptied from time to time, that a thirty-day

limit has been put on confinement there, and that it is planned

to close this section when the population of the prison has

declined sufficiently.

Plaintiffs also claimed that the idleness of many prisoners

not only contributed to unconstitutional conditions, but that

idleness was deliberately forced on the Block 10 inmates as a

form of punishment. Another claim of a constitutional viola-

tion was based on the undisputed fact that those housed in the

lower tiers of Block 10 and the New Man’s Section were not af-

forded the opportunity to exercise out of their cells or out-

doors.

Defendants’ evidence emphasized that Walpole as a whole

is adequately operated. Inmates are provided with a nutritious

diet, adequate heat, light and ventilation, an adequately

equipped private cell, good medical care, personal hygienic

and cleaning supplies, necessary clothing and bedding

materials, regular indoor and outdoor exercise, regular visits,

ready access to attorneys and a law library, religious counsel-

ing and services, hobby and vocational programs, and job op-

portunities for a good number of inmates.

A-9

The district court made specific findings on all of the claims

made. It found that inmates were not denied the right to

reasonable exercise, that there was not a policy of deliberate

idleness forced upon inmates of Block 10 in order to punish

them. It held that idleness “did not present a picture of con-

stitutional violation.” As to sanitary conditions, the court

found that, although “they leave a great deal to be desired,

that, however, they are not shocking or barbarous and do not

transgress the Constitutional standard. The problems of which

complaints were made were created by the plaintiff class, in

large measure.” After reciting the factors that it had taken into

consideration, the court stated: “In summary, the plaintiffs

have failed to establish by a fair preponderance of the evidence

that the inmates at Walpole have been subjected to cruel and

unusual punishment in violation of the Eighth Amendment, in

the blocks, in the New Man's Section, or by reason of condi-

tions in the kitchen area. The conditions complained of were

created by the plaintiffs’ own conduct in the cell blocks.” The

court concluded: “The conditions of confinement of the in-

mates at Walpole are not barbarous to the extent that they of-

fend society's evolving sense of decency. Nadeau v. Helgemoe,

561 F.2d 411 (Ist Cir. 1977). The sanitation problem in the

cell blocks was created by the plaintiffs themselves.”

The thrice-repeated statement that the conditions in the cell

blocks were created by the prisoners themselves raises a ques-

tion as to what standard the court applied in finding that these

conditions did not transgress constitutional requirements. We

do not quarrel with the factual basis for the finding — there

was sufficient evidence for it. But the place it is given in the

opinion — each time after a finding of no constitutional viola-

tion — suggests that the court might have premised its ruling

that the cell block conditions did not amount to cruei and

unusual punishment on the fact that the prisoners caused or

contributed to cause the conditions themselves. Although we

would agree that in an action for damages the conduct of the

A-10

plaintiffs-prisoners might bar them from recovering, we do

not think that, under the facts here, the conduct of the

prisoners was a factor to be considered in determining whether

the cell block conditions amounted to cruel and unusual

punishment. There was no evidence from which it could be

found that all of the inmates, or even a majority of them, were

responsible for the conditions. We see no reason why well-

behaved inmates should have to suffer cruel and unusual

punishment because of the actions of some disruptive ones.

Despite the district court’s findings, the prison administration

must bear the ultimate responsiblity for cell block conditions.*

To rule otherwise would mean, in the final analysis, that the

prison was being run by the inmates, not by those charged by

law with its administration. We realize that prison ad-

ministrators do not have an easy task, but dealing with violent

and disruptive men without violating the crvel and unusual

punishment pros siption of the eighth amendment is their job.

The Eighth Circuit put it well in Wycoff v. Brewer, 572 F.2d

1260, 1267 (8th Cir. 1978):

It must be realized, however, that prison administrators

are re- lired to deal in a constitutional manner with con-

victs who are violent and unruly as well as with those

whose conduct is exemplary or at least peaceful. And

while prison officials must have some latitude in imposing

conditions reasonably necessary to control a prisoner's

behavior, the contributory fault of an inmate does not

necessarily deprive him of his right to relief from depriva-

tions of constitutional dimension.

We have been unable to find any case holding that equitable

relief from unconstitutional living conditions should be denied

because the conditions were created in whole or in part by

The court did not comment directly on the testimony of Joseph G. Can-

non, an expert with twenty-seven years’ experience in state correctional

work, including three years as Commissioner of Correction for the State of

Kentucky, that the unsanitary conditions were due to lack of supervision by

the administration.

A-11

some of the prisoners. Although the law in this area has not yet

jelled, the cases point in the directon of the position we take.

In Ramos v. Lamm, 639 F. 2d 559, 569-70 (10th Cir. 1980),

cert. denied, 49 U.S. L. W. 3743 (April 6, 1981), the court

noted that one of the defenses of the prison officials was that

the unsanitary conditions were due to an absolute refusal by

the inmates to help keep the prison clean. The court, never-

theless, held the prison administration responsible for the

trash, decayed food, and other material that routinely littered

the corridors. In Palmigiano v. Garrahy, 443 F. Supp. 956,

963-64 (D. R.I. 1977), the district court placed primary

responsibility for sanitation on the administration, althcugh it

acknowledged the inmates’ role as well.

The contributing role of the inmates in creating unsanitary

conditions was remarked upon in the extensive litigation con-

cerning the Arkansas prison system. Although the prison of-

ficials did not raise it explicitly as a defense, the prisoners’ role

did not preclude the court from ordering relief. See Holt v.

Sarver, 309 F. Supp. 362, 378, 384-85 (E. D. Ark. 1970), aff d.

442 F.2d 304 (8th Cir. 1971). In a later Arkansas case, the

court, in finding that conditions had deteriorated rather than

improved, observed that acts of vandalism and personal

violence by the inmates were the result of overcrowding and

other unconstitutional conditions. Finney v. Hutto, 410 F.

Supp. 251, 276-77 (E. D. Ark. 1976), aff'd, 548 F.2d 740 (8th

Cir. 1977), aff'd, 437 U.S. 678 (1978).

An analogy may be made to the eighth amendment right to

be reasonably protected from violence in prison. See Gates v.

Collier, 501 F.2d 1291, 1309 (5th Cir. 1974); Woodhous v.

Virginia, 487 F. 2d 889, 890 (4th Cir. 1973) (per curiam); Mar-

tinez Rodriguez v. Jimenez, 409 F. Supp. 582, 594 (D. P.R.

1976); Pugh v. Locke, 406 F. Supp. 318, 329-30 (N.D. Ala.

1976), aff'd sub nom. Newman v. Alabama, 559 F. 2d 283 (5th

Cir. 1977), rev d on other grounds sub nom. Alabama v. Pugh,

A-12

438 U.S. 791 (1978). Such violence is clearly the “fault” of the

prisoners, yet prison officials are constitutionally required to

prevent it.

We do not mean to suggest that prison officials cannot re-

quire inmates to keep their cells and living space clean. This

can be done by any combination of discipline and reward that

is appropriate and does not violate the eighth amendment.

What we hold is that the prison administration must see to it

that unsanitary conditions do not continue unabated because

the conditions were first caused by the inmates themselves.

Cleanups must be conducted regularly, although they benefit

those who made the mess as well as those who did not.‘

Because it is not clear whether the finding that the prisoners

created the cell block conditions prompted the ruling that

there was no constitutional violation, we remand’ to the

district court to determine, without regard to the role of the

prisoners, whether the conditions in any of the cell blocks

amount to cruel and unusual punishment.

We also must question the court’s conclusion that conditions

in the New Man’s Section did not amount to cruel and unusual

punishment. It is difficult for us to understand why confining

men in a dungeon even with a thirty-day limit under the con-

ditions described, and which were essentially uncontroverted,

This is not to say that identifiable inmates who create unconstitutional

conditions, or thwart the efforts of prison administrators to keep prision con-

ditions up to constitutional standards, are necessarily entitled to relief from

the very conditions they themselves create. Depending on the circumstances,

such individuals might well be estopped from relief against self-imposed con-

ditions. The administrators, however, owe a duty to the other inmates to see

that the conditions in which they live are up to standard, and if constitu-

tional conditions cannot be maintained in one location because of the

misconduct of certain unruly inmates, then those inmates who are not

responsible must be moved to a location where their rights can be secured, or

the unruly inmates must themselves be relocated. This is much the same as

the duty owed to protect inmates from the violence of other prisoners.

5 See Nadeau v. Helgemoe, 561 F. 2d 411, 418-19 (Ist Cir. 1977), for an ex-

ample of another prison case remand due to ambiguities in the district court's

rulings.

A-13

does not offend society’s evolving sense of decency. See

Hawkins v. Hall, 644 F.2d at 917-18. The New Man’s Section

is reminiscent of the middle ages, not a penal institution open-

ed in 1955. We think the court's find ng must have been influ-

enced by testimony of the defendants that they intended to

close the New Man's Section. On page five of its opinion, the

court ended its description of this section by stating: “It is in-

tended that this section be closed.” The court also found: “So

far as the New Man’s Section is concerned, no man may

presently be placed there against his will.” It is true that

Thomas McLaughlin, Associate Deputy Superintendent,

testified that the New Man’s Section was the safest place in the

prison and that some inmates went there for protection, but

we are hard put to find any evidence that the section was

limited to volunteers. Moreover, in finding that no man may

be placed in the New Man’s Section against his will, the court

overlooked the realities of prison life at Walpole. It was referr-

ing to prisoners who, because of the fear that if they were kept

in the general prison population they would be physically

assaulted or killed, had asked for protective custody. Given the

Hobson's choice of the New Man's Section or the risk of death

at the hands of other inmates, they naturally chose to stay

alive. In this connection, we note the uncontradicted

testimony of Wesley Profit, a clinical psychologist with special

emphasis on delinquency in crime. Profit ran a progam at

Walpole from 1976 to 1978 on race relations for the maximum-

security inmates. He testified inter alia that Walpole has a na-

tional reputation for being one of the most violent prisons in

the country with a significant number of inmate murders.

After the findings and judgment were handed down, plaintiffs

moved to amend those portions that had to do with the New

Man’s Section, asserting that the defendants’ plan to close the

New Man’s Section was not carried out in the year that passed

between the trial and the findings, and that defendants have

continued to use the New Man’s Section for inmates who

would otherwise be held in Block 10. Plaintiffs also moved to

A-14

strike that portion of the findings in which the court found

that “no man may presently be placed there [New Man's Sec-

tion] against his will.” If defendants changed their intention to

close the New Man’s Section and also its use between the date

of the jury verdict and when the findings were issued, the

district court’s determination of whether there was a violation

of the eighth amendment may be affected. We think that

plaintiffs should be given an opportunity to prove their allega-

tions that defendants no longer intend to close the New Man’s

Section and that its use changed between the end of the trial

and the date the court’s findings were issued. If the court finds

that defendants intend to continue to use the New Man’s Sec-

tion, then it should determine whether the conditions prevail-

ing at the time of the new hearing constitute cruel and unusual

punishment.

We have read the entire record carefully and considering

our standard of review, the clear error rule, and the discretion

a trial judge has in making credibility determinations, we

uphold all findings except those as to the cell block conditions

and the New Man's Section.

We also affirm the district court’s denial of plaintiffs’ mo-

tion for judgment notwithstanding the verdict.

Affirmed in part and remanded for further proceedings con-

sistent herewith.

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APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION |

NO. 78-3051-MC

ALBERT BLAKE, ET AL.,

U.

FRANK A. HALL, ET AL.,

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

September 5, 1980

McNavucnt, D. J.

This is a civil rights class action for declaratory and injunc-

tive relief “from the conditions of incarceration” at the

Massachusetts Correctional Institution at Walpole, brought by

inmates on behalf of “all past, present and future inmates”

there. The law action arising out of the same subject matter,

seeking damages under 42 U.S.C. § 1983, was tried concur-

rently to a jury.

Plaintiffs claimed in their opening statement a violation of

their constitutional rights as a result of “neglect” and/or bad

faith and/or with specific intent. Some sections of Walpole, it

was claimed, were filled with garbage — food piled high

walls caked with filth — institution filled with rodents — in-

sects — lack of screens — toilets flooding — water leaks —

unbearably hot in the summer and cold in the winter — inade-

quate garbage removal in Block 10, etc. There were claims of a

“subterranean dungeon-like area” (the “New Man's section”).

Plaintiffs claimed that the defendant state officials subjected

Walpole inmates to conditions of confinement so oppressive,

unsanitary, unhealthy, degrading and debilitating as to

A-16

violate their Constitutional right to be free from cruel and

unusual punishments. Defendants conceded in their opening

statement that “Walpole” is not a pleasant place; that while

unsanitary conditions might have existed there, their descrip-

tion by the plaintiffs was exaggerated; that effort was made,

with a large number of facilities, to take care of the great

number of needs of approximately 600-650 people; that effort

was exerted to provide improvements in education and work

skills for the prisoners; that order had to be maintained in a

relatively small place while dealing with the most violent of

criminals in the correctional system; that the inmates

themselves created the conditions of which they complain, by

throwing food, excrement, and garbage; that the inmates

refused to cooperate, throwing food, canned goods, and trash

barrels from tiers. Defendants contended that it was the in-

mates who broke the sinks, toilets, and threw them into the

cellblocks; and that when corrections officers attempted to

clean the place up for the benefit of the inmates, urine, excre-

ment and garbage were thrown at them.

The court (and jury) was provided with a color coded

diagram of a schematic nature, of MCI Walpole. This institu-

tion is the maximum security prison for the Commonwealth of

Massachusetts, with a capacity of 666 inmates. At the time of

trial the population numbered slightly less than 580. It was

opened in 1955, replacing the Charlestown State Prison. The

schematic diagram reveals that as one faces the lobby and ad-

mi. trative section in the center of the prison, the minimum

security blocks, Al, A2 and A3, are to the left, off a main cor-

ridor. Also to the left, across the main corridor from Al, is

Block 10. Block B10 is at the far end of the minimum security

section, and it is structurally different from both minimum

and maximum blocks. It is used for the segregation of “dif-

ficult” inmates. To the right of the administrative area are the

maximum security blocks, BI, 2, 3, 4, 6 and 7. Blocks A4 and

A6, although they are minimum security blocks, are also

A-17

located in the maximum security end. Finally, to the extreme

right is maximum security Block 9, where approximately 75

men are kept in protective custody.

Block 10 contains 60 individual rooms. The minimum

security cellblocks near it each contain 72 cells. The maximum

end cellblocks (8) have 45 cells per block. Each cell in the

minimum end has a window. In the maximum end, cells do

not have windows. Natural light is available only from a

ceiling-level skylight. In the administrative portion of the

prison are the control room, deputies’ office, visiting rooms,

law library, chapel, social services, hospital services, day

rooms, library, computer program room, education and

classroom area, an auditorium, a dining room, office area, kit-

chen, staff dining room, receiving area and storage area.

The “New Man’s section” is a small unit beneath the prison

infirmary. It is now used primarily for protective custody in-

mates. New men actually are held in Blocks B6 and B7 in the

maximum security area.

Maximum Security Blocks

Cellblocks B1 through B4, containing a total of 180 rooms,

provided space for inmates posing the greatest risk of violent

behavior. The construction of each cell (similarly to cells in

Blocks A4, B6 and B7) shows three solid walls and a grille wall

with a grille door facing the “flats”. There are three tiers of 15

cells each along one long wall, facing a blank wall with an of-

ficers’ observation gallery. Ventilation is provided only by a

mechanical heat and air circulation system. Light is provided

by the bank of skylights running across the top of the blocks.

Each cell has a toilet, sink with hot and cold running water,

table and chair, bed and mattress. Shower facilities are

available on each tier. The inmates there are not permitted to

work, except that four inmates in each block act as runners

cleaning the blocks. The men have personal property

privileges and may maintain in their cells televisions, radios,

personal clothing, and the like.

A-18

There are no organized recreational programs. The inmates

have limited indoor recreational facilities in addition to daily

periods in the B section, outdoor recreation yard. If an inmate

in a maximum block wishes to participate in the industries

program or in jobs requiring access to less secure parts of the

institution, the inmate must first earn his way to placement in

the A section. Prior to November, 1978, educational programs

were instituted including a limited number of high school and

college courses, black studies, a Spanish course and tutorials,

religious groups, art workshops, and a race relations seminar.

Protective Custody Blocks

Protective custody is provided for prisoners who are

“unsafe” in the general prison population for any of a number

of reasons. Protective custody inmates are housed in Block A6

(described as medium security) and in Block 9. Occasionally,

an eight-cell unit, located below the infirmary, known as the

“New Man’s section”, has been used. A6 houses 45 men in-

dividually; Block 9 houses 30. The “New Man’s section” will

hold up to eight. In A6, the cells are furnished similarly to

those in the maximum security block. The inmates, as do those

in maximum security, receive institutional bedclothes, laun-

dry service and cleaning supplies. They are fed in the block on

tables set up in the flats. Ordinarily, these men are not permit-

ted to work, except as runners. They have visiting privileges

and may use the outdoor yard. The only programs available to

the men in A6 and in Block B9 are a G.E.D. course and a

tutorial. The fact of protective custody explains the enforced

idleness, with the exception of the out-of-cell time for showers

or outdoor exercises.

New Mans Section

As stated hereinbefore, this section is an eight-cell unit,

located below the infirmary, without natural light or ventila-

tion. It has been used from time to time for protective custody

of inmates unable to live safely with their peers in either A6 or

B9. A 30-day limit was imposed on stays in this section by

A-19

order of the Commissioner of Corrections. It is intended that

this section be closed.

Block 10

This block has two tiers back-to-back on an upper level and

two tiers back-to-back on a lower level, for a total of 60 cells.

Approximately 45 inmates are usually housed there. These are

described as the most severely disruptive, violent inmates in

the prison system. A prisoner is transferred there after engag-

ing in assaultive or destructive behavior, to preserve order or

security in the general population, and to protect the ur of

other inmates and staff.

Each tier has a five - foot - wide corridor in front of the cells.

Each cell on the upper level has three solid walls and a grille

door facing the corridor. The lower cells also have a solid steel

door which can be closed over the grille door. The solid steel

door has an observation window in it. The cells are furnished

similarly to other cells in the prison. Each inmate is entitled to

clothing, bedclothes, laundry service, hygiene items and

cleaning supplies. In March of 1979, inmates’ television sets

were confiscated. Radios and televisions are permitted on the

upper level. Inmates in the upper tiers are entitled to one hour

of outdoor recreation each day in a small fenced area behind

the block called a “kennel”. Lower level men may exercise

only in the corridors. Block 10 inmates are fed their meals on

trays in their cells.

Minimum Security Blocks

Blocks Al through A4 provide a total of 261 cells, 45 of them

in A4, and 72 in each of the other three. Al, 2 and 3 have three

tiers with 12 cells on each side, the central area of the block be-

ing called the “flats”. The cells on the upper tiers open to cat-

walks leading to stairways for access to the flats. Each cell has

a window. Most windows are unscreened, although the

legislature has appropriated funds for the purchase of new

screens. There are three showers per tier. Each cell has an

electric light fixture with a hookup for other electrical appli-

A-20

ances. The inmates there are permitted to use their own per-

sonal clothing, and weekly laundry service is provided. The in-

mates may maintain personal property, including radios and

televisions. Cleanser, disinfectant, sponges, mops and brooms

are provided for the inmates to clean their individual cells.

The inmates dine in the institution dining hall. After supper

they have an open period when they may pursue recreation,

programs, avocation or other activities. They are locked in

their cells at 9:30 p.m. for the evening count. Each prisoner in

this section has a job assignment, many of them working in the

prisoner industries area, in the manufacture of metal prod-

ucts, brushes and brooms, or in the printing shop. Others work

at janitorial or maintenance jobs throughout the prison or at

clerical jobs.

Cellblocks B6 and B7 contain a total of 90 cells. They are

used for housing new arrivals. The average stay in B6 or B7 is

approximately 60 days. Men are thereafter transferred to MCI

Norfolk for classification and a permanent institution assign-

ment. About 15% of them return to Walpole; the others being

assigned to other institutions.

Idleness

There is idleness, as claimed by the plaintiffs, at Walpole.

The extent of it depends upon the area in which an inmate is

located. In the maximum security blocks inmates are not per-

mitted to work. These men are the most disruptive prisoners in

the correctional system. Four inmates in each block act as run-

ners cleaning the block. As previously recited, the men in the

lower tiers of Block 10 are not permitted any exercise, and the

men in the upper tiers are allowed one hour of outdoor recrea-

tion each day. The men are locked in their cells from 9:30 p.m.

to 7:00 a.m. and, when a major count occurs. In Blocks BI

through B4, meals are taken in the flats, and men ordinarily

leave the blocks for no more than three visits per week in the

B-section visiting room, attorney visits which are unlimited,

counseling sessions, program activities, limited work

A-21

assignments, administrative hearings, medical appointments,

trip: to outside hospitals, court trips, law library sessions and

religious services. In these Blocks Bl through Ba there are daily

periods in the outdoor recreation yard and there are limited in-

door recreation facilities. These men do not participate in the

industries program. In the A section, however, educational

programs are available. The men in the protective custody

blocks, A6 and B9, and in the New Man's section obviously re-

quire strict security conditions for protective purposes, but

their stay is limited. During that time, in A6, there is access to

programs and job opportunities. Correspondence privileges,

access to medical care, attorney access and the right to use the

law library are comparable to other A section inmates. In B9

visiting privileges are allowed and the men have their own

recreation areas indoors and outdoors. Correspondence,

medical care, attorney access and library rights are provided.

So far as the New Man’s section is concerned, no man may

presently be placed there against his will.

I am not persuaded, and therefore do not find, that the in-

mates at Walpole have been denied the right to a reasonable

opportunity for exercise. Plaintiffs argue that inmates are sub-

jected to long periods of total idleness which leads to anger,

frustration and rebellion. The plaintiffs would have the court

find that the periods of total idleness constituted a deliberate

policy on the part of the defendants. I am not persuaded, and

therefore do not find, that there was a deliberate idleness en-

forced upon the inmates in Block 10 in order to punish them.

There is no doubt that idleness is a major problem. The situa-

tion at Walpole, however, with respect to this aspect of prison

life, does not present a picture of constitutional violation.

There are programs, work opportunities, avocational and

recreational facilities, visiting, correspondence and personal

property privileges. There is also a classification system which

permits inmates, regardless of precious conduct, to earn their

way to lower custody status and less idleness.

A-22

Sanitation, Health and Safety

Sanitation is obviously a problem at Walpole. The facilities

there are used by large numbers of persons, not only the in-

mates, but hundreds of staff workers and large numbers of

visitors. Sanitation will be a problem in any such institution

and the degree of cleanliness achieved will depend upon the

cooperation of the staff and the inmates.

Inmate runners are used in the cellblocks. Commonly, two

runners will serve the flats area, one will serve the second tier

and one will serve the third tier. These persons remove trash

and debris, sweep floors and walls, and clean the showers.

Each inmate is responsible for keeping his own room clean.

The most severe problems have most occurred in Blocks Bl

through B4 and in Block 10. These areas have suffered from

dirty conditions over extended periods of time. There has been

an accumulation of filth reaching ceiling level, thoroughly en-

crusted (language suggested by counsel for plaintiffs), admit-

tedly caused by the inmates themselves throwing paper,

debris, food, liquids, feces and urine on the floors and walls of

the ce Iblocks. Serving meals in the blocks, necessitated by

security, adds to the problem. The garbage attracts

cockroaches and mice. On occasion, and particularly during

lockup, runners have refused to work, and the prison staff has

swept and mopped the blocks. Such efforts have frequently

been for nought, since the inmates, with the garbage from

their next meal, served in the cells by the correction officers, is

available to recreate the sanitary problem quickly. In some in-

stances normal conditions have been restored within a few

days, but lockups have also lasted better than a month.

One Howard Wensley, a sanitary inspector, conducted in-

spections at Walpole once or twice a year, since 1972. He

wrote reports and sent them to prison officials. His reports,

Exhibits 24 through 35, indicate many sanitary code viola-

tions. The evidence also discloses correction of many of these,

such as fire damage in 1973, the operation of an unsanitary

A-23

landfill, a lack of smoke detectors, leaks in the dining room,

broken windows in the bakery, dirty trash barrels and leaky

slop sinks. He described the absence of electrical outlets and

the rigging of makeshift wiring for appliances, such as lamps

and radios. He told of ventilation and heating problems. He

spoke of slime on walls and plumbing fixtures, sewage

backups, and the clogging of drains in showers. He

characterized Walpole as “unfit for human habitation” by

reason of sanitation problems. He said that diseases, such as

Salmonella, Shigella and Typhoid might spread. On the other

hand, there was the testimony of Dr. Ronald I. Goldberg who

testified that there is virtually no possibility of an outbreak of

any of those diseases, and there was no evidence of any such a

case having occurred at Walpole. As defendants have argued,

there was not an instance of disease of any kind, illness, acci-

dent or injury, attributable to code violations.

William Babineau, a Department of Public Health Inspec-

tor of food service establishments, described the sanitary con-

ditions at Walpole in the food service areas as “average” and as

not hazardous to health. Mr. Wensley's opinion concerning

the pest problem was in contrast to that of Lewis Wells of the

Massachusetts Pest Control Board and that of Robert Verville,

an exterminator who had serviced Walpole on a weekly basis

for a year prior to the trial. I conclude that the sanitary condi-

tions at Walpole leave a great deal to be desired; that,

however, they are not shocking or barbarous and do not trans-

gress the Constitutional standard. The problems of which

complaint was made were created by the plaintiff class, in

large measure.

There was conflicting testimony concerning the quality of

the food at Walpole. It travels a distance from the preparation

area to the blocks where it is served. Only minimum section in-

mates and new men eat in the main dining room. There have

ten legitimate complaints concerning conditions in the food

preparation area: complaints concerning the lack of window

A-24

screens, broken windows, broken or leaking equipment, flak-

ing paint, pooling of water on the floor, and a leaking roof.

During 1979 certain foods were embargoed by reason of taint

by rodent droppings. It appears, however, that efforts have

been made to correct problems drawn to the attention of the

institutional staff. The witness Babineau characterized sanita-

tion in the food service area as “average”. A new dishwasher

was installed in 1979 at a cost of $30,000; repairs were com-

pleted in the roof in 1978; and the Corrections Department

obtained $350,000 for the fiscal year 1980 to replace worn kit-

chen equipment. Walpole has had a pest control service under

contract for years and spraying equipment is available with in-

secticide to cope with the problem. I accept the testimony of

Mr. Verville who stated that the infestation problem is com-

parable to that in other large food service establishments.

There is no question that the heating and ventilation system

has faults. Senator Jack Backman testified that, in the middle

of winter, he had seen inmates on a top tier in their

underwear, while inmates on the flats were dressed in shirt

and pants, socks and shoes. There has been a capital outlay ap-

propriation exceeding half a million dollars to make im-

provements in the ventilation system at Walpole.

I have considered all of the testimony presented to the court

and jury, including that of the dietician, concerning the

guidance given to the steward at Walpole, concerning

medically prescribed diets; I have considered the quality of the

food and produce as described by the steward. I have, in brief,

taken into account all of the testimony that I consider to be

worthy of credibility, cogent and trustworthy. I have not

neglected the reports by the witness Wensley concerning

sanitary code violations consisting of torn or damaged bedding

material. It appears that Walpole has replaced its fire retar-

dant foam mattresses. They would give off toxic fumes if ex-

posed to open flame. The bed clothing stock is, apparently,

maintained at a proper level.

A-25

With respect to the safety of the inmates, some seven years

ago the electronic gang-locking system in Blocks Al through

A3 was destroyed by inmates. Each cell in those blocks must be

unlocked individually. From the testimony that the Correc-

tions Department has “in progress” a capital outlay appropria-

tion and contract to repair this system, and in the light of the

fact that the inmates in those blocks are locked in only a few

hours per day, I am content that there is no Constitutional

violation in this regard. Medical services appear to be ade-

quate.

In summary, the plaintiffs have failed to establish by a fair

preponderance of the credible evidence that the inmates at

Walpole have been subjected to cruel and unusual punishment

in violation of the Eighth Amendment, in the blocks, in the

New Man’s section, or by reason of conditions in the kitchen

area. The conditions complained of were created by the plain-

tiffs’ own conduct in the cellblocks.

CONCLUSIONS

This court has jurisdiction of this matter pursuant to the

provisions of 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331(a),

1343(3) and (4). The plaintiffs in these actions adequately

represent the class of prisoners in Walpole and are entitled to

maintain this class action. Each of the named defendants was

an agent of the Commonwealth of Massachusetts, and the ac-

tions of these persons constituted acts under color of state law

as that phrase is used in 42 U.S.C. § 1983. The prisoners con-

fined in Walpole retained their Constitutional rights, except

those which are in conflict with the security and rehabilitative

goals of the prison system. Punishment may be so below

civilized norms or so inconsistent with the basic dignity of man

as to be cruel and unusual no matter what its provocation; or it

may be cruel and unusual because extremely disproportionate

to the occasion. See Estelle v. Gamble, 429 U.S. 97 (1977). See

also O’Brien v. Moriarity, 489 F.2d 941 (Ist Cir. 1974). The

conditions of confinement of the inmates at Walpole are not

A-26

barbarous to the extent that they offend society's evolving

sense of decency. Nadeau v. Helgemoe, 561 F.2d 411 (Ist Cir.

1977). The sanitation problem ir the cellblocks was created by

the plaintiffs themselves. Having concluded that the plairtiffs

have not proved violation of Eighth Amendment rights, judg-

ment shall be entered in favor of the defendants. Having

found no violation of the prisoners’ Constitutional rights, by

reason of single complaints, or by way of the totality of condi-

tions, the relief sought by the plaintiffs must be denied, even

apart from the jury verdict (a general verdict in favor of all

three defendants on the damage claims).

s/ Jon J. MCNaucHnT

UNITED STATES DISTRICT JUDGE

A-27

APPENDIX C

UNITED STATES CONSTITUTION, AmeNnpMENT VII

In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States, than according to

the rules of common law.

UNITED STATES CONSTITUTION, AmenpMENT VIII

Excessive bail shall not be required, nor excessive fines im-

posed nor cruel and unusual punishment inflicted.

Trriæ 42, UNITED STATES CODE, § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the depriva-

tion 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.

uon O00

RECEIVED

APK 1 6 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

CASE NO. 81-1730

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1961

FRANK A. HALL, et al.,

Petitioners

ALBERT BLAKE, et al.,

Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FIRST CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ANN LAMBERT GREENBLATT

COUNSEL OF RECORD

Massachusetts Correctional Legal

Services, Inc.

294 Washington Street, Room 744

Boston, Massachusetts 02108

(617) 482-2773

JUDITH A. STALUS

Massachusetts Correctional Legal

Services, Inc.

294 Washington Street, Room 744

Boston, Massachusetts 02108

(617) 482-2773

MICHAEL AVERY

2 Park Square

Boston, Massachusetts 02116

(617) 426-2020

NORMAN S. ZALKIND

65A Atlantic Avenue

Boston, Massachusetts 02110

(617) 742-6020

COUNSEL FOR RESPONDENTS

TABLE OF CONTR ITS

Page

Opinions Z 1

EE ES i ee eee 1

GUSSCSONS rene. eee eee eee e 1

Constitutional Provisions Involved....... 1

eee eee eee eee e 1

. „„ „6 „„ „ „ „ „ „ „„ „0 2

T . oeeees 6

PV Cir Gms occeccccodéécceocs 7

TABLE OF AUTHORITIES

Page(s)

DiMarzo v. Cahill, 575 F. 2d 15

8 r. „ cert. denied,

493 v. 8. 927 Deere Cebtoetedecbeccoe 5

Gates v. Collier, 349 F. Supp.

ss. 1972), aff'd

501 r. 2d 1291 (5th Cir. Dh oneeoeeboéoaes 4, 5

Holt v. Sarver, 309 F. Supp.

-D. Ark. 1970), aff'd

442 F. 2d 304 (8th Cir. 1971117. 4

Hutto v. Finney, 437 U.S.

„ ———— „ „„ „„ „ „ „ „ 4

Inmates of Suffolk County Jail

Vv. * senstadt, 494 F. x4 1196

r. 9), cert. denied,

419 BoB. OFF CROTE) cocvcccccccescecvevecece 5

Jackson v. Bishop. 404 F.2d

. „4 est 5

Newman v. Alabama, 559 F.2d

. Drees 5

Owens-El v. Robinson, 442 F. Supp.

W.D. Pa. 1978), aff'd

in part sub nom. Inmates of

Aljeghany, County Jail v. Pierce,

* r ir. D 4

Pugh Vv. Locke. 406 F. Supp.

M.D la. 1976), aff'd

sub nom. " Newman v. Alabama,

SSD F.28 2S CSE CAE, e 4

Ramos v. Lamb, 485 F. Supp.

- Col. 1979), aff'd

639 F. 2d 559 (loth Cir. 1980ù: 4

Rozecki v. Caughey. 459 F. 2d

st . eee 5

Wycoff v. Brewer, 572 F. 2d 1260

E. eres ete eee eee eee eee es 4

Opinions Below

The respondents adopt the statement of the

petitioners and direct the Court's attention to the

texts of the opinions included in the appendix of the

petition.

Jurisdiction

The respondents adopt the statement of the

petitioners.

Questions Presented

Respondents adopt the statement of the petitioners,

with regard to the first question presented, but deny

that petitioners’ statement of the second question is

an accurate reflection of the ruling of the Court of

Appeals, which did not hold that “conduct of plaintiff

prisoners in sabotaging their living quarters [must] be

disregarded in determining whether conditions thus

created denied them rights under the Eighth Amendment.”

(See A-9-10 of Petition, opinion of Court of Appeals.)

Constitutional Provisions Involved

The respondents adopt the statement of the peti-

tioners.

Statement of the Case

This case was brought by inmates at the Massachu-

setts Correctional Institution at Walpole to challenge

the constitutionality of the conditions of their confine-

ment. The damages part of the case was tried to a jury

which returned a verdict of no liability as to each

individual defendant. Later the district court issued

findings of fact and conclusions of law denying the

inmates’ claims for injunctive relief.

The inmates appealed. Citing certain ambiguities

in the trial court's opinion, the First Circuit Court of

Appeals remanded the case to the district court for

further deliberation.

The prison administration then petitioned this

Court for a writ of certiorari. They have not, however,

moved for a stay of the Court of Appeals judgment. The

case is presently active in the district court.

Argument

The Court of Appeals has remanded this case to

the trial judge for clarification of his opinion. Review

of the decision to remand by this Court, while proceed-

ings continue in the District Court, would clearly be

premature.

The Appeals Court has not formulated a final

rule for review of Eighth Amendment claims. The Appeals

Court judges were unable to determine from the lower

court decision whether inmate contribution to unconsti-

tutional conditions was given improper consideration by

the trial judge. Their decision does not bar all con-

sideration of inmate misbehavior as a defense. Identi-

fiable inmates who actually create unconstitutional

, conditions may be barred from seeking equitable relief.

‘whe court has only held that well-behaved inmates may

not be subjected to cruel and unusual punishment because

of other prisoners' misbehavior. Responsibility for

maintaining acceptable conditions and curbing recalci-

trant inmates lies with prison administrators not inmates.

The district court has not yet had an opportunity

to apply this general principle to the specific facts of

the case nor has the Court of Appeals had an opportunity

to review the guideline'’s application. Review by this

Court of such an unripened issue is clearly inappropriate.

The Court of Appeals has remanded the case for

further proceedings concerning the District Court's

reliance on certain factors in making his rulings of law

and, too, concerning current conditions in one section

of the prison. So long as these issues remain unresolved

and no final decree has been entered, the case is not

ripe for review in this Court.

Further, petitioners have made no showing that

the issues on which they seek review -- the use of

inmate misbehavior as a defense in prison conditions

litigation -- is actually a substantial issue facing

the federal courts which need this Court's guidance.

They point to some 8000 pending prisoner cases but do

not point to a single case in which such a defense has

been recognized. In fact, federal courts have consis-

tently ordered injunctive relief when faced with

unconstitutional conditions regardless of inmate

involvement in creation of those conditions. Hutto v.

Finney, 437 U.S. 678, 688 (1978); Ramos v. Lamb, 485

F. Supp. 122, 135 (D. Col. 1979), aff'd 639 F.2d 559

(10th Cir. 1980); Owens-El v. Robinson, 442 F. Supp. 1368

(W.D. Pa. 1978), aff'd in part sub nom. Inmates of

Alleghany County Jail v. Pierce, 612 F. 2d 754 (3rd Cir.

1979); Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978);

aff'd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.

1977); Gates v. Collier, 349 F. Supp. 881, 894 (N.D. Miss.

1972), aff'd 501 F.2d 1291 (5th Cir. 1974); Holt u.

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

F. 2d 304 (8th Cir. 1971).

The Appeals Court decision is not in conflict

with any decisions of this Court or with the right of

trial by jury. The district court carefully protected

the right to trial by jury by submitting the case to

the jury prior to making any findings as to equitable

issues. The jury was instructed to return a general

verdict unless they found liability as to any given

defendant. Only then were they to answer specific

quest ions regarding the constitutionality of various

areas of confinement in Walpole.

As the Court of Appeals correctly observed, it

is impossible to determine from the general verdict

whether it was based on a finding that the conditions

at Walpole were not in violation of the Eighth Amendment

or on findings that conditions were in violation of the

Eighth Amendment, but that they were not the product of

intentional or reckless misconduct by the individual

defendants or were caused by some agency other than the

defendants (e.g., the state legislature, the inmates,

etc.).

Petitioners' argument that proof of liability

is identical for money damages and equitable relief is

patently wrong.* A state official will often have

responsibility for remedying unconstitutional conditions

which are not of his doing. A showing of good faith or

best efforts by state officials may shield them from

liability in damages but cannot protect them from

injunctive orders. Intentional or reckless misconduct

is clearly not a requisite for establishing an equitable

Claim. DiMarzo v. Cahill, 575 F. 2d 15 (lst Cir. 1978),

cert. denied, 493 U.S. 927 (1978); Inmates of Suffolk

County Jail v. Eisenstadt, 494 F.2d 1196 (lst Cir. 1979),

cert. denied, 419 U.S. 977 1974); Newman v. Alabama,

559 F. 28 283 (Sth Cir. 1977); Gates v. Collier, 501

F. 2d 1291 (Sth Cir. 1974); Rozecki 7. Gaughan, 459

F. 2d 6 (lst Cir. 1972); Jackson v. Bishop, 404 F.2d 571

(8th Cir. 1968).

* Rule 25(d) of the Federal Rules of Civil Procedure,

for example, requires automatic substitution of

successive public officers being sued in their official

capacity. Obviously, a substituted party would not

assume his predecessor's liability in money damages.

Conclusion

Respondents respectfully request that this

Court deny the Petition for Writ of Certiorari. The

decision of the First Circuit, Court of Appeals is in

accord with all decisions of this Court and other

federal courts which nave considered similar issues.

Moreover, the present petition is underripe.

Respectfully submitted,

U..

Ann rt Greenblatt

Counsel of Record

Massachusetts Correctional

Legal Services, Inc.

294 Washington Street, Room 744

Boston, Massachusetts 02108

(617) 482-2773

talus

ssachusetts Correctional

Legal Services, Inc.

294 Washington Street

Boston, Massachusetts 02108

(617) 482-2773

chael Ave 1

2 Park Square

Boston, Massachusetts 02116

(617) 426-2020

65A Atlantic Avenue

Boston, Massachusetts 02110

(617) 742-6020

Counsel for Respondents

@Jo

CERTIFICATE OF SERVICE

I, Ann Lambert Greenblatt, hereby certify that

I have served the foregoing Opposition to Petition

for Writ of Certiorari upon the petitioners by forward-

ing a copy through the office of their counsel Lee

Carl Bromberg, 31 Milk Street, Boston, Massachusetts

02109 by United States Mail, first class postage

prepaid, this 14th day of April, 1982.

(bee

Ann L&mbert Greenblatt

— r

APR 1 6 1982)

IN THE SUPREME COURT OF THE UNITED STATES | OFFICE OF THE CLERK

SUPREME COURT, U.S.

FRANK A. HALL, et al.,

Petitioners

v. NO. 81-1730

ALBERT BLAKE, et al.,

Respondents

RESPONDENTS’ MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondents Albert Blake, Ralph Hamm and Patrick

Rahilly, through their attorney, respectfully move the

Court, pursuant to Rule 46 of the Rules of the United

States Supreme Court, for leave to proceed in forma

pauperis. Respondents are named representatives of the

class of prisoners housed at the Massachusetts Correctional

Institution at Walpole certified by the district court.

Respondents did seek, and were granted, leave to proceed

in forma pauperis in the district court and continued to

proceed in forma pauperis in the First Circuit Court of

Appeals, pursuant to Rule 24 of the Federal Rules of

Appellate Procedure.

For the foregoing reasons, respondents respectfully

request that their motion be allowed.

5 fully submitted,

Inn rt Greenblatt

Counsel for Respondents

Massachusetts Correctional

Legal Services, Inc.

294 Washington Street, Room 744

Boston, Massachusetts 02108

(617) 482-2773

IN THE

UNITED STATES SUPREME COURT

= OCTOBER TERM, 1981

FRANK A. HALL, et al.,

Petitioners

v. NO. 81-1730

*

ALBERT BLAKE, et al.,

Respondents

AFFIDAVIT OF _ RALPH C. HAMM IIT

I, the above-named affiant, being first duly sworn,

depose and say that I am a respondent in the above-entitled

case; that in support of my motion to proceed on appeal

without being required to prepay fees, costs or give

security therefor, I state that because of my poverty I am

unable to pay the costs of said proceeding or to give

security therefor.

I further swear that the responses which I have made

to the questions and instructions below relating to my

ability to pay the cost are true.

1. Are you presently employed? No.

K a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

* b. If the answer is no, state the date of your

last employment and the amount of the salary

and wages per month which you received.

— Re ee + — — — — - —— — — — —

2.

Have you received within the past twelve months

any income from a business, profession or other

form of self-employment, or in the form of rent

payments, interest, dividends, or other source? No,

a. If the answer is yes, describe each source of

income, and state the amount received from each

during the past twelve months.

Do you own any cash or checking or savings account? No.

a. If the answer is yes, state the total value

of the items owned.

Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing)? No.

a. If the answer is yes, describe the property and

state its approximate value.

List the persons who are dependent upon you for

support and state your relationship to those

persons.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties

= vere Ze 2 —

nenne Mm deen 20 before us this A7 day of PV ored,

1982.

e

Deter, b.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1981.

PRANK A. HALL, et al.,

Petitioners

ALBERT BLAKE, et al.,

Respondents

AFFIDAVIT OF_ALBERT BLAKE

I, the above-named affiant, being first duly sworn,

depose and say that I am a respondent in the above-entitled

case; that in support of my motion to proceed on appeal

without being required to prepay fees, costs or give

security therefor, I state that because of my poverty I am

unable to pay the costs of said proceeding or to give

security therefor.

I further swear that the responses which I have made

to the questions and instructions below relating to my

ability to pay the cost are true.

1. Are you presently employed? No.

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

b. If the answer is no, state the date of your

last employment and the amount of the salary

and wages per month which you received.

Have you received within the past twelve months

any income from a business, profession or other

form of self-employment, or in the form of rent

payments, interest, dividends, or other source? No.

a. If the answer is yes, describe each source of

income, and state the amount received from each

during the past twelve months.

Do you own any cash or checking or savings account? No.

a. If the answer is yes, state the total value

of the items owned.

Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing)? No.

a. If the answer is yes, describe the peeperty and

state its approximate value.

List the persons who are dependent upon you for

support and state your relationship to those

persons.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties

for perjury. I Declare under penalty of perjury under the laws of the

*

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Leavenworth, Kansas

SUBSCRIBED AND SWORN TO before me this day of ,

1982.

—__March 17, 1982

“

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1981.

FRANK A. HALL, et al.,

Petitioners

v. NO. 81-1730

ALBERT BLAKE, et al.,

Respondents

AFFIDAVIT OF_PATRICK RAHILLY

I, the above-named affiant, being first duly sworn,

depose and say that I am a respondent in the above-entitled

case; that in support of my motion to proceed on appeal

without being required to prepay fees, costs or give

security therefor, I state that because of my poverty I am

unable to pay the costs of said proceeding or to give

security therefor.

I further swear that the responses which I have made

to the questions and instructions below relating to my

ability to pay the cost are true.

1. Are you presently employed? No.

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

b. If the answer is no, state the date of your

last employment and the amount of the salary

and wages per month Which you received.

— — — —ñ— rr en eee ee — -- — —

0

2. Have you received within the past twelve months

any income from a business, profession or other

form of self-employment, or in the form of rent

payments, interest, dividends, or other source? No.

a. If the answer is yes, describe each source of

income, and state the amount received from each

during the past twelve months.

3. Do you own any cash or checking or savings account? No,

a. If the answer is yes, state the total value

of the items owned.

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing)? No.

a. If the answer is yes, describe the property and

state its approximate value.

5. List the persons who are dependent upon you for

support and state your relationship to those

persons.

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties

for perjury. ;

SUBSCRIBED AND SWORN TO before me this Ge day —

1982.

*

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«

RECEIVED

APR 1 6 1982

IN THE SUPREME COURT OF THE UNITED STATES — . — *

FRANK A. HALL, et al., -

Petitioners

5. NO. 81-1730

ALBERT BLAKE, et al.,

Respondents

AFFIDAVIT

I, Ann Lambert Greenblatt, being duly cautioned

and sworn, depose and say:

1. I am counsel of record for the respondents

in the above-captioned case.

2. I am a member of the Bar of this Court.

3. This affidavit is prepared pursuant to

Rule 28.2, Rules of the United States Supreme Court.

4. I personally mailed an original and one

copy of the Brief in Opposition to Petition for Certiorari

with accompanying documents to the Clerk of Court, United

States Supreme Court, One First Street, Washington, D.C.

20543, first class postage prepaid, on April 14, 1982.

eee

rt Greenblatt

Sworn to before me and subscribed in my presence

this 14th day of April, 1982.

ry c

My commission deere eue, 4 1457

CERTIFICATE OF SERVICE

I, Ann Lambert Greenblatt, hereby certify that

I have served a copy of the foregoing Motion for Leave

to Proceed in Forma Pauperis upon the petitioners by

forwarding a copy through the office of their counsel,

Lee Carl Bromberg, 31 Milk Street, Boston, Massachusetts

02109, by United States Mail, first class postage prepaid,

this 14th day of April, 1982.

rt Greenblattt

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