Appendix — Bennett v. Williams

Supreme Court brief1983

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No. ror ty cee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

LARRY BENNETT, JR, JOHN E. VickEeRS, Dk. MARION

CARROLL, Dr. THOMAS F. STATON, J. LOUIS WILKINSON,

W. S. HAMNER, JOE OLIVER, JOE RAINES,

and JUDSON C., Locke, JR..

Petitioners,

BosBBY WILLIAMS,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JAMES R. SEALE

THomMAS S. Lawson, JR.

57 Adams Avenue

Montgomery, Alabama 36104

(205) 262-1671

Counsel for Petitioners.

Washington OC © THIEL PRESS » 202 638-452"

(1)

TABLE OF CONTENTS

APPENDIX A — Opinion of the United States Court of

Appeals, Williams v. Bennett, 689 F.2d 1370 (11th

Cec ROBE) ck ia coe ek eee Ohno ee se ee 3

APPENDIX B — Judgment of Court of Appeals.......--.

APPENDIX C — Order Denying Rehearing. ......+++++:

APPENDIX D — Order of Court of Appeals Staying

eae we a Wale ee le we

APPENDIX E — Judgment of District Court..........

APPENDIX F — United States Supreme Court Opinion:

State of Alabama v. Pugh, 328 U.S. 781,98 S.Ct.

$057, 57 L.Ed.2d 1114 (1978) . 0-2 es cece evccenss

APPENDIX G — United States Court of Appeals Opinion:

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

APPENDIX H — Opinion and Order of District Court: Pugh

v. Locke, Civil Action Nos. 74-203-N, 74-47-N, United

States District Court for the Middle District of Alabama,

ee eee

APPENDIX I — Opinion and Order of District Court: .Viwman

v. State of Alabama, United States District Court for the

Middle District of Alabama, Civil Acuon Nos. 3501-N,

74-57-N, 74-203-N, February 2,1979......

Page

. %le

APPENDIX A

Bobby WILLIAMS, Plaintiff-Appellant,

Larry BENNETT, et al.,

Defendants-Appellees.

No. 81-7037.

United States Court of Appeals,

Eleventh Circuit.

Oct. 2, 1982.

Appeal was taken from various orders

and judgment of the United States District

Court for the Middle District of Alabama,

Truman M. Hobbs, J., in favor of defend-

ants in civil rights action by inmate assault-

ed by fellow inmate, and alleging depriva-

tion of his Eighth and Fourteenth Amend-

ment rights. The Court of Appeals, James

C. Hill, Circuit Judge, held that: (1) Board

of Corrections and its officials could invoke

the Eleventh Amendment so as to render

them immune from suit in their official

capacity; (2) District Court was without

subject matter jurisdiction, either under

theory of pendent jurisdiction or pendent

party jurisdiction, over assault and battery

claims against inmate who assaulted plain-

tiff inmate; and (3) following class action

in which it was determined that living con-

ditions in state prisons constituted cruel and

unusual punishment, defendants were col-

laterally estopped to relitigate issue of

whether conditions and practices in prison

in which assault occurred violated plaintiff.

inmate’s Eighth Amendment rights; but (4)

prior class action had no preclusive effect

on issue of individual constitutional wrong-

doing on part of defendants.

Reversed and remanded.

Appeal from the United States District

Court for the Middle District of Alabama.

Before HILL and HATCHETT, Circuit

Judges, and GOLDBERG *, Senior Circuit

Judge. :

JAMES C. HILL, Circuit Judge:

On January 10, 1978 in the Holman Pris-

on in Atmore, Alabama, appellant Bobby

* Honorable Irving L. Goldberg, U. S. Circuit

Judge for the Fifth Circuit, sitting by designa-

tion.

Williams was assaulted by fellow inmate

Larry Cook while Williams was sleeping in

his dormitory bunk. Cook inflicted multiple

stab wounds which rendered Williams a

permanent quadriplegic. At the time of

the incident, the dormitory housed medium

security prisoners, and no prison guards

were stationed either inside or outside the

dormitory.

Williams filed a damage action in the

district court under 42 U.S.C. §§ 19838, 1985,

and 1986 and the eighth and fourteenth

amendments against the Alabama Board of

Corrections and its members, th: Board’s

commissioner and deputy commissioner, the

warden and deputy wardens of Holman

Prison, and the captain and assistant cap-

tain of the guards at the prison, all in their

official and individual capacities. Williams

alleged that his personal injuries were the

result of the deprivation of his right under

the eighth amendment to be free from cruel

and unusual punishment and of his right

under the fourteenth amendment to be free

from deprivation of life, liberty, and proper-

ty without due process of law.' The com-

1. On appeal! ne contends that these violations

are actionable not only under the Civil Rights

Act of 1871—specifically 42 U.S.C. §§ 1983,

[footnote continued |

plaint also named Larry Cook as an individ-

ual defendant, alleging a state law assault

and battery claim.

Prior to trial the district judge granted

partial summary judgment in favor of the

Alabama Board of Corrections and all other

defendants, except Larry Cook, in their of-

ficial capacities on the basis of their elev-

enth amendment immunity. Just after

commencement of trial the state law claim

against defendant Cook was dismissed for

lack of subject matter jurisdiction. At the

close of the evidence the court granted a

directed verdict for the captain and assist-

ant captain of the guards. A jury verdict

was rendered in favor of the remaining

defendants in their individual capacities and

Williams appeals.

For the reasons developed below, we con-

clude that:

(1) The district court properly dismissed

the proceedings against defendant

Cook.

(2) The court properly held that, under

the eleventh amendment, the Board

1985, and 1986—but also directl> under the

Constitution. With respect to the aailability

of an implied cause of action agains\ state

officials directly under the eighth and ‘four-

teenth amendments, see part VI, C., infra.

(3)

(4)

(5)

(6)

of Corrections and other defendants,

insofar as they were sued in their

official capacities, were immune from

damage liability.

Prior litigation established that Wil-

liams was confined in violation of the

eighth amendment and that his inju-

ries, being the result of foreseeable

peril, were at least concurrently

caused by that wrongful deprivation

of constitutional freedom.

The injunction issued in the prior liti-

gation is of no moment insofar as it

anticipated an expected date of com-

pliance. Although relevant to con-

tempt proceedings, the time allow-

ance in the iujunction did not vary

appellees’ duties under the Bill of

Rights.

The defense of good faith qualified

immunity is not available to appellees

because prior litigation put them on

notice that the conditions of confine-

ment at the prison were unconstitu-

tional.

In order to recover, however, Wil-

liams must prove that one or more of

the individual defendants acted with

such callous indifference to Williams’

safety as to amount to constitutional

wrongdoing, and that such wrongdo-

ing produced the constitutional depri-

vation. Evidence that an individual

defendant had neither the authority

nor the resources to prevent the dep-

rivation is material to this issue.

(7) The district court improperly instruct-

ed the jury that the state could not be

compelled to pay any part of a judg-

ment in favor of Williams.

(8) Williams may not maintain a Bivins-

type action under the eighth amend-

ment in addition to his claims under

section 1983.

(9) The direction of a verdict in favor of

defendants Chancery and Raines is

reversed. Their liability vel non

should be reappraised in light of our

conclusions as to the applicable princi-

ples.

I PROLOGUE

In order to appraise the legal setting in

which the case was tried we must direct our

attention to a prior class action under 42

U.S.C. § 1983 involving conditions in the

Alabama Penal system. In Pugh v. Locke,

406 F.Supp. 318 (M.D.Ala.1976), aff'd with

modifications sub nom. Newman vy. Ala-

bama, 559 F.2d 283 (5th Cir. 1977), rev'd in

part sub nom. Alabama v. Pugh, 488 U.S.

781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978),

the district court held that living conditions

in Alabama prisons, including exposure to

the constant threat of violence from other

inmates, constituted cruel and unusual pun-

ishment in violation of the eighth amend-

ment. The court concluded that, by hous-

ing inmates “in virtually unguarded, over-

crowded dormitories, with no realistic at-

tempt ... to separate violent, aggressive

inmates from those who are passive or

weak,” the Alabama prison system had

failed to carry out its constitutional duty to

provide inmates reasonable protection from

the constant threat of violence. Jd. at 329.

Accordingly, the court entered injunctive

relief against, inter alia, the commissioner,

deputy commissioner, and members of the

Board of Corrections in their individual and

official capacities, “their agents, employees,

successors in office and any other acting in

concert with them.” Id. at 331. The decree

directed that only minimum custody in-

mates be assigned to dormitories and that

at least one guard be stationed inside and

one guard outside the dormitories at all

times. Id. at 333.

The district judge who entered the in-

junction in 1976 conducted hearings in Sep-

tember, 1978 to determine the extent of

compliance with the Pugh order. The

judge’s findings and conclusions therefore

covered the conditions in the Alabama pris-

ons at the time of the incident upon which

the current action is based. Having re-

viewed the evidence of efforts toward com-

pliance, the court held that ‘“{t]he very fact

of confinement in Alabama’s Penal System

continues to contravene the Eighth and

Fourteenth Amendment rights” of the in-

mates. Newman vy. Alabama, 466 F.Supp.

628, 680 (M.D.Ala.1979). With respect to

the state’s duty to provide inmates reasona-

ble protection from violence, the court ob-

served:

Defendants admit noncompliance with

the requirement that guards be stationed

in the living areas, including dormitories.

The dormitories, they say, are too danger-

ous for the guards to enter. That fear is

well taken. The number of reported inci-

dents of prosecutable crimes of violence

shows a steady increase over the last four

years .

The Board has not taken the first steps

to curb the pattern of violence which

makes a mockery of the Eighth Amend-

ment’s protection against cruel and un-

usual punishment. The Board has delib-

erately ignored the requirement that

guards be stationed in the dormitory

units at night.

Id. at 6382 (emphasis added).?

II THE INSTITUTION EXITS

The Pugh litigation determined that the

conditions of Williams’ confinement denied

him the protection afforded prison inmates

by the eighth amendment and that the cru-

el and unusual punishment thus inflicted

was his constant exposure to the very sort

of violence he experienced. The Alabama

Penal System, as an institution, was being

unconstitutionally operated. Williams at-

tempted to sue the institution itself by

naming as defendant the Board of Correc-

tions and its officials and employees in their

official capacities. If these defendants

were proper parties for a damage suit, his

task would have been far easier. However,

2. Based upon its findings and conclusions that

substantial compliance with the Pugh injunc-

tion had not been achieved and that the eighth

amendment violation persisted, the court

placed the Alabama prison system under the

governance of a federal receiver. Newman v.

Alabama, 466 F.Supp. 628, 636 (M.D.Ala.1979).

10a

on the basis of the eleventh amendment’s

acknowledgement of sovereign immunity,

the district court entered a partial summary

judgment in favor of the Alabama Board of

Corrections and its officials and employees

insofar as they were sued in their official

capacities. Williams now challenges the ap-

plication of sovereign immunity on two

grounds. Initially, he argues that the

Board of Corrections should not be con-

sidered the “state” for eleventh amendment

purposes. In the alternative, he argues

that a recent Alabama statute should be

construed as a partial abrogation of any

immunity the Board may have enjoyed pre-

viously.

The eleventh amendment? has

evolved to stand for the proposition that an

unconsenting state is immune from damage

suits brought in federal court by its own

citizens or by citizens of another state.

Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct.

1139, 1148, 39 L.Ed.2d 358 (1979); Edelman

3. The judicial power of the United States shall

not be construed to extend to any suit in law

or equity, commenced or prosecuted against

one of the United States by citizens of anoth-

er state or by citizens or subjects of any

foreign state.

U.S.Const. amend. XI].

lla

v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347,

1855, 39 L.Ed.2d 662 (1974). The amend-

ment effectively bars such actions for mon-

etary relief even when the state is not

named as a party. If the judgment neces-

sarily will be paid from the state treasury,

and the state is the real party in interest,

then the state may invoke its sovereign

immunity. Id. 415 U.S. at 664, 94 S.Ct. at

1356; Ford Motor Co. v. Department of

Treasury, 323 U.S. 459, 464, 65 S.Ct. 347,

850. 89 L.Ed. 389 (1945). Although Wil-

liams maintains that the Board of Correc-

tions is amenable to suit because it is politi-

cal subdivision operating independent of the

state,‘ his argument is precluded by the

Supreme Court’s decision in Alabama v.

Pugh, 488 U.S. 781, 98 S.Ct. 3057, 56

L.Ed.2d 1114 (1978). In Alabama vy. Pugh,

the Court concluded:

There can be no doubt, however, that suit

against the State and its Board of Correc-

tions is barred by the Eleventh Amend-

4. Independent local political subdivisions are

not entitled to eleventh amendment immunity.

Lake Country Estates, Inc. v. Tahoe Planning

Agency, 440 U.S. 391, 400-01, 99 S.Ct. 1171,

1176-77, 59 L.Ed.2d 401 (1979). See generally

Laje v. R.E. Thomason General Hospital, 665

F.2d 724, 727 (5th Cir. 1982).

l2a

ment, unless Alabama has consented to

the filing of such a suit.

438 U.S. at 782, 98 S.Ct. at 3057 (citation

omitted).§

Recognizing that the Board and its offi-

cials may invoke the eleventh amendment

when sued in their official capacity, we turn

now to plaintiff’s contention that the state

has since elected to waive its constitutional

5. Williams argues that Alabama v. Pugh should

not control because the Court stated, “Respon-

dents do not contend that Alabama has con-

sented to this suit ...." 438 U.S. at 782, 98

S.Ct. at 3057. Because the issue was not

raised, he claims, it should not be given st2re

decisis effect. A more complete reading of the

Court’ opinion, however, reveals that Alabama

properly raised the issue on appeal and that it

was not contested because such a contest

would prove futile:

Respondents do not contend that Alabama

has consented to this suit, and it appears that

no consent could be given under Art. I, § 14,

ef the Alabama Constitution, which provides

that “the State of Alabama shall never be

made a defendant in any court of law or

equity.” Moreover, the question of the

State’s Eleventh Amendment immunity is not

merely academic. Alabama has an interest

in being dismissed from this action in order

to eliminate the danger of being held in con-

tempt if it should fail to comply with the

mandatory injunction.

Id.

l3a

immunity by consenting to such suits. In

1979, the Alabama legislature enacted a

statute in which the state agreed to pay up

to $100,000 for judgments awarded against

officials and employees of the Board of

Corrections. Ala.Code § 41-9-74 (1981

Supp.).§ Williams maintains that by enact-

6. Board to pay judgments against board of cor-

rections Officials; limitations, exceptions, etc.

(a) As part of the consideration of the em-

ployment or appointment of the commissioner

of the board of corrections, deputy commis-

sioners of the board of corrections, members of

the board of corrections and other officers,

employees and agents of the board of correc-

tions, whether part time or full time, the board

of adjustment shall pay all final judgments

awarded in courts of competent jurisdiction

against the aforesaid commissioner, deputy

commussioner, members of the board of correc-

tions, officers, employees and agents, for acts

arising out of and performed in connection with

their official duties in behalf of the state of

Alabama, except to the extent that such cover-

age may be provided by an insurance carmer.

(b) Payment shall be limited to a maximum

of $100,000 for all claims arising out of the

same act.

evidence in any court of law wherein any of the

officers or persons idemnified herein are par-

ties. Nothing in this section shall be deemed to

waive the sovereign immunity of the state with

[footnote continued |

l+a

ing this statute the legislature intended to

effectuate a limited waiver of eleventh

amendment immunity. We disagree.

Waiver of a state’s eleventh

amendment immunity can be found only

when evidenced “by the most express lan-

guage or by such overwhelming implica-

tions from the text as [will] leave no room

for any other reasonable construction.”

Edelman, 415 U.S. at 673, 94 S.Ct. at 1360

(quoting Murray v. Wilson Distilling Co.,

213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed.

742 (1909).); accord Florida Department of

Health & Rehabilitative Services v. Florida

Nursing Home Association, 450 U.S. 147,

respect to a claim covered under this section or

to authorize the payment by the state of any

judgment or settlement against the aforesaid

commussioner, deputy commissioner, members

of the board of corrections, officers, employees

and agents, to the extent that the same exceeds

the sum of $100,000.

apply to the commissioner, any deputy com-

missioner, any member of the board of correc-

tions and any other officer, employee and agent

of the board of corrections who is found guilty

of gross negligence or intentional or knowingly

unlawful behavior.

Ala.Code § 41-9-74 (1981 Supp.).

L9a

150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132

(1981). In evaluating the statute for evi-

dence of waiver, we therefore begin with an

analysis of its language. The introductory

paragraph of section 41-9-74 states that

Alabama will pay final judgments awarded

against Board officials in suits arising out

of official acts “{a]s part of the considera-

tion of the employment or appointment” of

the individuals. Ala.Code § 41-9-74(a)

(1981 Supp.). This language suggests that

the statute was designed to be an employ-

ment benefit, analogous to liability insur-

ance, for any Alabama correctional employ-

ee who may be sued individually for acts

arising in the course of employment. Cf.

Reeves v. City of Jackson, 608 F.2d 644, 654

n.6 (5th Cir. 1979) (a state municipality does

not waive its immunity by purchasing liabil-

ity insurance). Section 41-9-74 makes no

mention of suits against the state or against

the Board itself as an independent political

body. Instead, the statute indicates that its

indemnity provision runs to individuals by

specifically listing those employees who

may claim the benefit of its coverage. In

addition, the provision that awards will be

paid only to the extent that coverage is not

provided by an insurance carrier suggests

l6a

further that payments pursuant to the stat-

ute were intended to be nothing more than

an insurance supplement for individuals, see

Ala.Code § 41-9-47(a), and perhaps to af-

ford some measure of relief to plaintiffs

required to sue those who might otherwise

be judgment proof individuals.

Williams relies most heavily on para-

graph (c) of the statute by arguing that the

legislature considered sovereign immunity,

but decided to waive its protection insofar

as a particular judgment did not exceed

$100,000. This construction of the statute,

however, ignores a clause which alters the

meaning of paragraph (c). The relevant

language reads as follows:

“Nothing in this section shall be deemed

to waive the sovereign immunity of the

state with respect to a claim covered un-

der this section or to authorize the pay-

ment of any judgment or settlement

against aforesaid commissioner, deputy

commissioner, members of the board of

corrections, officers, employees and

agents, to the extent that the same ex-

ceeds the sum of $100,000.

Id. § 41-9-74(c) (emphasis added). We are

not persuaded that this provision expresses

the intent of the legislature to waive sover-

iia

eign immunity; rather, the legislature ap-

pears to reaffirm Alabama’s sovereign im-

munity and simply to limit payments made

pursuant to the statute to $100,000.

Our construction of section 41-9-74 is

consistent with Alabama’s traditional reluc-

tance to waive its sovereign immunity. For

example, the Alabama Constitution un-

equivocally states “That the State of Ala-

bama shall never be made a defendant in

any court of law or equity.” Ala.Const. art.

I, § 14. Moreover, the Alabama Supreme

Court consistently maintains that “{s]ince

our Constitution unequivocally prohibits

Suits against the state, the legislature may

not consent to such a suit.”” Armory Com-

7. Wiliams attempts to disclaim such pro

nouncements by the Alabama Supreme Court

by referring to that portion of the Alabama

Constitution vesting w the legislature the

power and duty “to ena all laws necessary to

give effect to the provisions of this Constitu-

tion.”” Alja.Const. art. XVII, § 282. In an exer-

cise of this power, Williams maintains that the

legislature has excluded the Board of Correc-

tions from the protection of sovereign immuni-

ty by subjecting the Board and its officials to

“all legal restrictions, limitations, conditions

and penalties, civil and cnmminal ....” Ala.

Code § 14-1-10 (1975). This argument fails,

however, because section 14~-1-10 was in effect

[footnote continued |

18a

mission vy. Staudt, 388 So.2d 991, 992 (Ala.

1980); accord Druid City Hospital Board v.

Epperson, 378 So.2d 696, 697 (Ala.1979);

Dunn Construction Co. v. Board of Adjust-

ments, 234 Ala. 372, 175 So. 383 (1937).

Because of Alabama’s unequivocal! affirma-

tion of sovereign immunity, and because

section 41-974 fails to represent a clear

expression of intent to waive that immunity

at the time the Supreme Court determined that

the Alabama Board of Corrections could invoke

eleventh amendment immunity. Alabama Vv.

Pugh, 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d

1114 (1978). At that point, the Court conclud-

ed that apparently the Alabama legislature

could not waive the state’s sovereign immunity.

438 U.S. at 782, 98 S.Ct. at 3057. We also note

that section 14-1-10 was modified by a 1979

act by the legislature which abolishes the

Board of Corrections and transfers all responsi-

bilities and liabilities to the Governor of Ala-

bama. Ala.Code § 14-1-15 (1981 Supp.). To

the extent that section 14-1-10 may be incon-

sistent with the new organization of Alabama's

penal system it no longer has effect. Id.

Nevertheless, Williams urges us to read section

14-1-10 in conjunction with section 41-93-74 to

find the requisite evidence of intent to waive

sovereign immunity. Because such a reading

fails to provide us with a clear expression of

the intent to waive the constitutional protec-

tion, we reject the argument.

19a

in federal court,’ we hold that the Board

may not be subject to suit; however, while

its officials and/or employees may not be

sued in their official capacities, they are,

individually subject to suits for acts or

Omissions in connection with their official

duties. The grant of partial summary

judgment is affirmed.

III DEFENDANT COOK EXITS

The district court dismissed the assault

and battery claims against defendant Larry

Cook for lack of subject matter jurisdiction.

On appeal, Williams urges that Cook’s dis-

missal was improper because the court had

pendent jurisdiction over these state law

claims. We disagree.

A federal court may exercise pen-

dent jurisdiction over state law claims by

parties properly before it, provided the fed-

eral and state law claims derive from a

common nucleus of operative fact and that

8. At least one federal circuit has ruled that the

waiver must extend explicitly to suits in federal

court. Montana v. Peretti, 661 F.2d 756, 758

(9th Cir. 1981) (citing Florida Dep't of Health &

Rehabilitative Services v. Florida Nursing

Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032,

1034, 67 L.Ed.2d 132 (1981).).

20a

adjudication of the state claim will not

prove inconvenient or unfair to the litigants

or unduly burden the proceedings. United

Mine Workers v. Gibbs, 383 U.S. 715, &6

S.Ct. 1130, 16 L.Ed.2d 218 (1966); Jackson

‘y. Stinchcomb, 635 F.2d 462 (5th Cir. 1981);

Silva v. Vowell, 621 F.2d 640 (5th Cir. 1980),

cert. denied, 449 U.S. 1125, 101 S.Ct. 941, 67

L.Ed.2d 111 (1981). Implicit in the tradi-

tional concept of pendent jurisdiction is

that the court already has jurisdiction over

all the parties involved, whether because

they are diverse or because a substantial

federal claim has been asserted against the

defendant. Here, however, Cook was not a

diverse party. Nor was any substantial

federal claim asserted against him. Be-

cause Cook is not a state official, he was not

involved in the section 1983 claim. More-

over, Williams failed to proffer sufficient

evidence to maintain that Cook and state

correctional officials conspired to deprive

Williams of his constitutional rights in vio-

lation of 42 U.S.C. § 19853) (1976). See

Griffin v. Breckenridge, 403 U.S. 88, 91

S.Ct. 1790, 29 L.Ed.2d 338 (1971); Crowe v.

Lucas, 595 F.2d 985 (5th Cir. 1979).

Accordingly, the only possible

source of jurisdiction over the state law

2la

claim against Cook lies in the nascent con-

cept of pendent party jurisdiction. Under

this theory, a court in some limited circum-

stances may bring in “state” parties over

which it could not otherwise exercise juris-

diction. See Aldinger v. Howard, 427 U:S.

1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976);

Arango v. Guzman Travel Advisors Corp.,

621 F.2d 1871, 1877 n.7 (5th Cir. 1980);

Boudreaux v. Puckett, 611 F.2d 1028, 1030-—

31 (5th Cir. 1980); see, eg., Connecticut

General Life Insurance Co. v. Craton, 405

F.2d 41 (5th Cir. 1968). The exercise of

such pendent party jurisdiction turns on

judicial economy considerations and wheth-

er ‘‘... Congress has expressly or impliedly

negated the existence of jurisdiction of a

pendent claim or party.” Boudreaux, 611

F.2d at 1031.9

9. As the Supreme Court explained in Aldinger:

If the new party sought to be joined is not

otherwise subject to federal jurisdiction,

there is a more serious obstacle to the exer-

cise of pendent jurisdiction than if parties

already before the court are required to liti-

gate a state-law claim. Before it can be con-

cluded that such jurisdiction exists, a federal

court must satisfy itself not only that Art. Ii!

permits it, but that Congress in the statutes

conferring jurisdiction has not expressly or

by implication negated its existence.

427 U.S. at 18, 96 S.Ct. at 2422.

22a

The exercise of pendent party jurisdiction

already has been rejected in the context of

diversity jurisdiction. Owen Equipment &

Erection Co. v. Kroger, 437 U.S. 365, 98

S.Ct. 2396, 57 L.Ed.2d 274 (1978). Although

we recognize that the policies supporting

federal question jurisdiction differ from

those supporting diversity jurisdiction and

thus may compel a different approach to

pendent party junsdiction in federal ques-

tion cases, see generally Note, A Closer

Look at Pendent and Ancillary Jurisdiction:

Toward a Theory of Incidental Jurisdiction,

95 Harv.L.Rev. 1935, 1942-43 (1982), we

need not resolve the issue. The exercise of

pendent jurisdiction is a discretionary deci-

sion reserved to the district court. See

Jackson supra, 635 F.2d at 472-73; Gregory

v. Mitchell, 634 F.2d 199, 202 (5th Cir. 1981).

As such, the district court was in the best

position to determine if joinder of the state

law claim against Cook would interfere

with the disposition of Williams’ federal

civil mghts claim. We are not faced here

with a case of a federal court accused of

exercising jurisdiction beyond that autho-

rized by Congress. Instead, we are present-

ed with a case where a trial judge, acting

within his discretion, chose not to exercise

pendent party jurisdiction and deferred to

state courts resolution of the state law

23a

claim of assault and battery.'® In light of

the tenuous nature of pendent party juris-

diction and its emphasis on judicial econo-

my, we conclude that the court acted within

its discretion in dismissing defendant Cook.

IV THE CASE REMAINING

With Cook dismissed from the suit and

the Alabama Prison System immune from

damage liability, Williams is left with

claims against the remaining defendants in

their individual capacities. Because of the

Pugh decision, proof of actionable wrongdo-

ing by the prison system, in its corporate

form, would appear to have been a straight-

forward matter. The case remaining

against the individuals working in various

capacities in the system, however, is far

10. Williams also maintains that, even if the

court did not have subject matter junsdiction,

the fact that Cook's dismissal came after two

days of testimony was prejudicial to Williams’

case. We find no merit in this position. The

district court clearly explained to the jury that

Cook's dismissal did not reflect on Williams’

claims against the other defendants or against

Cook himself for that matter. The court stated

that the claim against Cook was brought in

good faith, but would be better adjudicated in a

state court. Record, at 904-06.

2+a

more complicated. Thus, before we evalu-

ate the effect of Pugh on the remaining

case, we find it important to focus on the

nature of Williams’ prima facie case under

42 U.S.C. § 1983 for violation of his eighth

amendment rights.!!

“In order to state a § 1983 cause of

action against prison officials based on a

constitutional deprivation resulting from

cruel and unusual punishment, there must

be at least some allegation of a conscious or

callous indifference to a prisoner’s rights,

thus raising the tort to constitutional stat-

ure.” Wright v. El Paso County Jail, 642

F.2d 134, 1386 (5th Cir. 1981). Accord Es-

telle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.

285, 292, 50 L.Ed.2d 251 (1976); Woodall v.

Foti, 648 F.2d 268, 272 (5th Cir. 1981) (per

curiam). To establish a deprivation of his

eighth amendment nghts, Williams there-

fore must bear the burden of proving delib-

erate indifference on the part of each of the

defendant officials to his need for reasona-

ble protection from violence. Only this de-

ll. The eighth amendment’s ban on cruel and

unusual punishment was first made applicable

to the states by virtue of the fourteenth amend-

ment in Robinson v. California, 370 U.S. 660,

82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

25a

gree of disregard for a prisoner’s rights

“can offend ‘evolving standards of decency’

in violation of the Eighth Amendment” and

can separate official conduct that is action-

able under section 1983 from simple negli-

gence which is not actionable under section

1983. Estelle v. Gamble, 429 U.S. at 106, 97

S.Ct. at 292.

Section 1983 imposes additional

proof requirements when that statute is

used as the vehicle to vindicate substantive

constitutional rights. The statute provides:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State ... subjects, or caus-

es to be subjected, any citizen of the

United States ... to the deprivation of

any rights, privileges, or immunities se-

cured by the Constitution ... shall be

liable to the party injured in an action at

law, suit in equity, or other proper pro-

ceeding for redress.

42 U.S.C. § 1983. The italicized language

plainly requires proof of an affirmative

causal connection between the actions taken

by a particular person “under color of state

law” and the constitutional deprivation.

See Monell vy. Department of Social Serv-

ices, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036,

26a

56 L.Ed2d 611 (1978) (causation require-

ment precludes imposition of vicarious lia-

bility on municipality for acts of its employ-

ees absent proof that execution of official

policy inflicts injury); McLaughlin v. City

of LaGrange, 662 F.2d 1385, 1388 (11th Cir.

1981) (per curiam); Rheuark v. Shaw, 628

F.2d 297, 305 (5th Cir. 1980), cert. denied,

450 U.S. 931, 101 S.Ct. 1892, 67 L.Ed.2d 365

(1981).

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

598, 46 L.Ed.2d 561 (1976), the Supreme

Court expounded on the nature of the caus-

al link which must be established. Under

review in Rizzo was the entry of injunctive

relief against the mayor, police commission-

er, and other officials of the City of Phila-

delphia in a section 1983 action alleging a

pervasive pattern of police mistreatment of

minority citizens and of Philadelphia resi-

dents in general. The Court reversed the

judgment of the district court, finding fault

with the theory of liability upon which it

was based. Specifically, the Court .disap-

proved the imposition of liability for the

officials’ failure to act in the face of a

statistical pattern of police misconduct ab-

sent proof that the supervisory defendants

had “direct responsibility for the actions” of

those police officers who had engaged in

27a

the misconduct. Id. at 375-76, 96 S.Ct. at

606 (emphasis added). The former Fifth

Circuit also has elaborated on the necessary

causal link between officials’ acts or omis-

sions and the constitutional deprivation.

“ ‘Personal participation’ is only one of sev-

eral theories which can be used to establish

causation .... Another theory ... is that

a supervisory defendant is subject to § 1983

liability when he breaches a duty imposed

by state or local law, and this breach causes

plaintiff’s constitutional injury.” Sims v.

Adams, 5387 F.2d 829, 831 (5th Cir. 1976)

(citations omitted). From Rizzo and Sims it

is clear that the inquiry into causation must

be a directed one, focusing on the duties

and responsibilities of each of the individual

defendants whose acts or omissions are al-

leged to have resulted in a constitutional

deprivation.

Thus, in order to prevail against any one

of the individual defendants, Williams must

prove the following:

1. That being confined in a dormitory

with inmates other than minimum se-

curity inmates without guards being

present deprived him of his eighth

amendment right to be free from cru-

28a

el and unusual punishment because of

the danger of violence.

2. That the individual defendant inten-

tionally, or by callous indifference,

was a cause of the constitutional dep-

rivation.

3. That this deprivation was a legal

cause of his injuries.

Williams contends that the Pugh litiga-

tion collaterally estops defendants from re-

litigating the issue of whether he (and other

inmates of Holman Prison) was deprived of

his right to be free from cruel and unusual

punishment by exposure to violence. For

this reason, Williams continues, the district

court erred in admitting evidence of de-

fendants’ good faith attempts to comply

with the dictates of the Pugh injunction.

We agree only in part with Williams’ argu-

ment.

V PUGH IN PERSPECTIVE

The Pugh litigation, the findings and con-

clusions of the court, and the injunctive

relief granted, have been woven into this

case from the start. It is from this perspec-

tive that we evaluate the principles of pre-

clusion and their proper place in these pro-

ceedings.

29a

Preclusive effect will be given

to the adjudication of an issue litigated in a

prior proceeding if the issue in the subse-

quent proceeding is identical to the one

involved in the prior action, the issue was

actually litigated, and the determination of

the issue was necessary in the prior action.

Stovall v. Price Waterhouse Co., 652 F.2d

537, 540 (5th Cir. 1981); Johnson v. United

States, 576 F.2d 606, 615 (5th Cir. 1978). In

the present case Williams seeks to estop the

defendants from relitigating issues they

purportedly litigated and lost in the Pugh

action, thus invoking the offensive use of

collateral estoppel. In Parklane Hosiery

Co. v. Shore, 489 U.S. 322, 99 S.Ct. 645, 58

L.Ed.2d 552 (1979), the Supreme Court

granted federal trial courts broad discretion

to permit the offensive use of collateral

estoppel,!* indicating, however, that the ex-

12. In Allen v. McCurry, 449 U.S. 90, 101 S.Ct.

411, 66 LEd.2d 308 (1980), the Court an-

nounced the applicability of collateral estoppel

to section 1983 actions. Although that case

specifically upheld the defensive use of collat-

eral estoppel, the Court cited with approval the

preciusion principles of Parklane Hosiery. Id.

449 U.S. at 94, 101 S.Ct. at 414. The defend-

ants in this appeal have not questioned the

availability of offensive collateral estoppel in a

section 1983 action.

30a

ercise of this discretion is circumscribed by

considerations of fairness to the defendant

in foreclosing relitigation of an issue. Id.

439 U.S. at 331-32, 99 S.Ct. at 651-52. A

trial judge may justifiably refuse to allow

offensive use of collateral estopel if the

defendant did not have an incentive to liti-

gate the issue vigorously in the prior pro-

ceeding or if the defendant did not have a

full and fair opportunity to litigate it. Jd.

at 332, 99 S.Ct. at 652.

Under the circumstances of this

case we conclude that the defendant offi-

cials are collaterally estopped to relitigate

the issue of whether the conditions and

practices in Holman Prison violated Wil-

liams’ eighth amendment right to be free

from cruel and unusual punishment. The

parties there actually litigated, and the dis-

trict court necessarily decided, one of the

same basic issues at stake in this action—

namely, whether the conditions and prac-

tices to which Williams was exposed as an

inmate of Holman, including the failure

adequately to guard dormitories and to as-

sign only minimum security prisoners to

dormitories, amounted to cruel and unusual

punishment. To state it more precisely, the

Pugh decision forecloses relitigation on the

3la

issue of whether Williams was denied rea-

sonable protection from violence. That de-

cision, however, does not preclude litigation

on the issue of the degree of culpability of

each defendant—that is, whether each de-

fendant exhibited “deliberate indifference,”

which was a producing cause of the eighth

amendment violation.

We do not perceive an unfairness in es-

topping the defendants’ relitigation of the

eighth amendment issue. All of the current

defendants—with the exception of the

warden, deputy warden, captain, and assist-

ant captain of the guards at Holman—or

their predecessors in office were named de-

fendants in the Pugh litigation.’ In light

of the serious constitutional violations al-

leged and the broad declaratory and injunc-

tive relief sought in Pugh, the defendants

had every incentive to litigate the eighth

amendment issue fully and vigorously. The

journey of the case through the appellate

courts evidences the fact of their vigorous

defense. See Newman v. Alabama, 559

13. Those officials not named as defendants in

Pugh were nevertheless bound by the injunc-

tion as “agents, employees successors in office

[or] any others acting im concert with” the

named defendants. Pugh v. Locke, 406 F.Supp.

at 331.

32a

F.2d 283 (5th Cir. 1977), rev'd in part sub

nom, Alabama v. Pugh, 438 U.S. 781, 98

S.Ct. 3057, 56 L.Ed.2d 1114 (1978). More-

over, there are no procedural opportunities

in the present case that were unavailable to

the Pugh defendants and of a kind that

would be likely to alter the resolution of the

eighth amendment issue. See Parklane Ho-

siery, 439 U.S. at 332 n. 19, 99 S.Ct. at 652

n. 19.

Although not stated with the desired pre-

cision, Williams’ counsel did move “... for

a directed verdict in regard to the question

of cruel and unusual! punishment.” Record,

at 1115. Indeed, the motion was somewhat

lost among other motions which were far

from deserved. Nevertheless, without sug-

gesting that everything moved for in the

same oration had merit, a directed finding

of cruel and unusual punishment should

have been made by the district court.

The degree of culpability of each of the

individual defendants and his causal role in

the physical injumes suffered by Williams

as a result of his exposure to the constant

threat of violence present us with a differ-

ent matter. As we have pointed out above,

33a

only a gross deviation from the standard of

care owed—specifically in this case a callous

indifference to Williams’ need for protec-

tion from violence—is actionable as an

eighth amendment violation under section

1983. In our view, Pugh does not estop

each of the current defendant officials from

attempting to establish that he did not ex-

hibit such deliberate indifference. Al-

though the district judge involved in the

Pugh litigatien castigated the state for its

failure to take seriously its responsibility

for operating its prisons in conformity with

constitutional mandates, at times referring

to the deliberate disregard of steps ordered

in the Pugh injunction, see, e.g., Newman v.

Alabama, 466 F.Supp. 628, 632 (M.D.Ala.

1979), it is clear that Pugh did not resolve

the state of mind or intent of any particular

one of the current defendants in failing to

perform acts within his official responsibili-

ty. Hence one of the prerequisites of col-

lateral estoppel, identity of these issues in

the prior and subsequent actions, is missing

here. The district court’s comments in

Pugh addressed the corporate fault of the

state officialdom with responsibility for op-

eration of the Alabama penal system, not

the existence of individual fault on the part

of each of—or any one of—the current de-

34a

fendants.'4 The latter focus is critical here.

For example, it would be unfair to penalize

with persona] monetary liability an individ-

ual Board of Corrections member whose

‘vigorous efforts to hire sufficient prison

guards, or to assign available guards so as

adequately to staff the dormitories, were

overruled by the contrary views of a major-

ity of the Board. On the other hand, it

would be highly relevant to the establishing

of personal liability to introduce evidence

that an individual defendant, having juris-

diction over an adequate number of guards

and over Williams’ dormitory at the time of

the stabbing announced: “I’m not going to

station a guard in that dorm. Those prison-

ers deserve what they can do to one anoth-

”

er.” Such matters remain to be litigated.

Accordingly, we conclude that

Pugh has no preclusive effect on the issue

of individual constitutional wrongdoing.

Our examination of the Pugh litigation con-

vinces us that the causation element in that

14. Cf. Montana v. United States, 440 U.S. 147,

164 n. 11, 99 S.Ct. 970, 979 n. 11, 59 L-Ed.2d

210 (1979) (“‘Redetermination of issues is war-

ranted if there is reason to doubt the quality,

extensiveness, or fairness of the procedures

followed in the prior litigation.’’) (emphasis

added).

35a

case is not identical to the causation re-

quirement at issue here. To be sure, as the

language of section 1983 plainly requires, a

causal connection between the constitution-

al deprivation and the defendants’ acts or

omissions is as much an element of liability

for purposes of entering injunctive relief in

Pugh as it is in the present damages action.

See, e.g. Rizzo v. Goode, 423 U.S. 362, 96

S.Ct. 598, 46 L.Ed.2d 561 (1979) (injunctive

relief). It also is clear that the parties in

Pugh, collectively, as the corporate official-

dom, were in a position to end the constitu-

tional violation. However, when individu-

als are being sued in individual capacities

for damages for personal injuries, the cau-

sation inquiry must be more refined and

focused than that undertaken in Pugh,

where only declaratory and injunctive relief

were sought for constitutional violations

pervading an entire prison system. In

Pugh the focus for causation purposes was

on whether the combined acts or omissions

of all state officials with some responsibility

for operation of the Alabama penal system

created living conditions in the prisons

which violated the eighth amendment.

Thus the approach of the district court in

Pugh was broad and generalized. From

that approach ensued a sweeping injunction

36a

against all officials with any responsibility

with respect to the prisons’ operation. By

contrast, the critical causation issue here

must be whether each individual defendant

was in a position to take steps that could

have averted the stabbing incident at Hol-

man but, through caileus indifference,

failed to do so.'§ Resolution of this issue

necessarily entails a very individualized ap-

proach, taking into account the duties, dis-

cretion and means of each defendant.

There can be no duty, the breach of

which is actionable, to do that which is

beyond the power, authority, or means of

the charged party. One may be callously

indifferent to the fate of prisoners and yet

not be liable for their injuries. Those

whose callous indifference results in liabili-

ty are those under a duty—possessed of

authority and means—to prevent the inju-

ry.

We find support for our holding that

Pugh has a preclusive effect on the eighth

amendment issue but not on the issues of

individual liability in a former Fifth Circuit

case arising from a very similar factual

15. A clear showing of lack of responsibility by

one or more of the defendants would have had

only incidental impact upon the real issue in

Pugh—i.e., grant of injunction vel non.

37a

background. In Bogard v. Cook, 586 F.2d

399 (5th Cir. 1978), cert. denied, 444 U.S.

883, 100 S.Ct. 178, 62 L.Ed.2d 113 (1979), the

plaintiff, a former prisoner in the Mississip-

pi State Penitentiary, sued prison officials

under 42 U.S.C. § 1983 for damages arising

from, inter alia, a stabbing by a fellow

inmate that had rendered him a permanent

paraplegic. The plaintiff had participated

in a prior prisoners’ class action under sec-

tion 1983 and other civil mghts statutes

against various state officials. Gates v.

Collier, 349 F.Supp. 881 (N.D.Miss.1972),

aff'd, 501 F.2d 1291, 1822 (5th Cir. 1974).

In Gates the plaintiff class had secured

broad declaratory and injunctive relief

from, inter alia, violations of the inmates’

eighth amendment rights through the offi-

cials’ failure to provide adequate protection

against physical assaults by other inmates.

The district court’s holding was affirmed on

appeal, with the circuit court adopting the

trial court’s finding of fact and conclusions

of law asitsown. Gates v. Collier, 501 F.2d

1291, 1822 (5th Cir. 1974). On appeal of the

plaintiff’s subsequent damage action of per-

sonal injuries, the former Fifth Circuit was

called upon to determine the effect of the

prior Gates litigation on the plaintiff's case.

The defendant officials argued that res ju-

38a

dicata barred the plaintiff’s entire damage

suit because, as a member of the Gates

class, he could have litigated the personal

injury claim in the prior action. The plain-

tiff contended that the defendants were

collaterally estopped by the Gates suit from

attacking certain findings regarding the

unconstitutionality of the prison conditions.

The court rejected the res judicata argu-

ment for essentially the same reasons that

prompt us to deny collateral estoppel on the

deliberate indifference and causation issues

and permitted collateral estoppel on the

constitutionality of the prison conditions

just as we do now. See Bogard v. Cook, 586

F.2d 399, 409 (5th Cir. 1978), cert. denied,

444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113

(1979).

Despite the necessity of litigating

each defendants’ responsibility for the pris-

on’s condition, the Pugh findings preclude

defendants’ contention that the unconstitu-

tional condition under which Williams was

forced to live was not a proximate cause of

his injuries. In reaching this conclusion, we

distinguish between the individualized cau-

sation requirement (proof that a defendant

39a

contributed to the unconstitutional prison

conditions), and the more generalized causa-

tion requirement (proof that the unconstitu-

tional prison conditions contributed to Wil-

liams’ injuries). Although the former re-

mains to be litigated with respect to each

individual defendant, the latter was litigat-

ed effectively in the prior suit.

In the absence of Pugh, proof of inten-

tional wrongdoing by someone other than

the defendant (in this case Cook) might put

in issue the causal connection between the

proven default of the defendant and the

injury. However, Pugh was specific on this

point. Confining medium and ‘maximum

security risk prisoners in a dormitory with-

out the presence of a guard inevitably ex-

poses each inmate to violent injury at the

hands of other inmates. Pugh, 406 F.Supp.

at 325, 329-30, 333; see also Newman, 466

F.Supp. at 632. It was because of this

causal connection that the following re-

quirements, inter alia were included in the

Pugh order: (1) “{oJnly minimum custody

inmates may be assigned to dormitories;”

(2) “guards shall be stationed inside living

areas, including dormitories, at all times;”

and (3) “{tJhere shall be at least one guard

inside and one guard outside, all living ar-

eas at all times.” 406 F.Supp. at 333. The

40a

Pugh case therefore determined that the

defendant prison officials must have fore-

seen that mixed unguarded dormitories

would fester violence, and that they had a

duty to provide their inmates with reasona-

ble protection. See 406 F.Supp. at 329; see

also Gates v. Collier, 501 F.2d 1291, 1308-09

(5th Cir. 1974). Thus, if an individual de-

fendant is shown to have caused Williams

to be housed in this mixed and unguarded

fashion, through intentional conduct or cal-

lous indifference, then such action or omis-

sion was one of the causes of Williams’

injuries. Williams need not prove that a

particular defendant must have foreseen

the specific injuries suffered as a result of

the assault.

Similarly, we extend the preclu-

sive effect of Pugh to the qualified immuni-

ty or good faith defense of the individual

defendants. When sued in their individual

capacities for damages under section 1983,

defendant officials generally may assert a

good faith defense. Wood v. Strickland,

420 U.S. 308, 95 S.Ct. 992, 438 L.Ed.2d 214

(1975); Scheuer v. Rhodes, 416 U.S. 232, 94

S.Ct. 1683, 40 L.Ed.2d 90 (1974). The pa-

rameters of this defense recently were clar-

4la

ified by the Supreme Court in Harlow v.

Fitzgerald, —— U.S. , 102 S.Ct. 2727,

73 L.Ed.2d 396 (1982):

Decisions of this Court have established

that the “good faith” defense has both an

“objective” and a “subjective” aspect.

The objective element involves a pre-

sumptive knowledge of and respect for

“basic, unquestioned constitutional

rights.” Wood v. Strickland, 420 U.S.

308, 320 [95 S.Ct. 992, 999, 43 L.Ed.2d 214]

(1975). The subjective component refers

to “permissible intentions.” Ibid. Char-

acteristically the Court has defined these

elements by identifying the circumstanc-

es in which qualified immunity would not

be available. Referring both to the ob-

jective and subjective elements, we have

held that qualified immunity would be

defeated if an official “knew or reason-

ably should have known that the action

he took within his sphere of official re-

sponsibility would violate the constitu-

tional rights of the [plaintiff], or if he

took the action with malicious intention

to cause a deprivation of constitutional

rights or other injury ....” Id. at 321-

322 [95 S.Ct. at 1000] (emphasis supplied).

42a

102 S.Ct. at 2737. Harlow involved the

good faith defense afforded presidential

aides. After examining the policies under-

lying the immunity, the Court further re-

fined the defense by holding “that govern-

ment officials performing discretionary

functions generally are shielded from liabil-

ity for civil damages insofar as their con-

duct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Id.

— at , 102 S.Ct. at 2789 (citations

omitted). Thus, objective criteria now gov-

ern the evaluation of a good fai\h defense.

To the extent that good faith is defined

essentially in objective terms, if defendants

should have known that their conduct in

maintaining an unconstitutional prison vio-

lated Williams’ rights, then their good faith

defense will be defeated. In the context of

the present case, the Pugh order not only

clearly defined the constitutional rights of

the Alabama prisoners, but also served to

put the defendant officials on notice of the

continuing violations. As the court stated

in Pugh:

In Wood v. Strickland, 420 U.S. 308, 95

S.Ct. 992, 43 L.Ed.2d 214 (1975), the Su-

preme Court held that, under Section

43a

1983, plaintiffs can recover money dam-

ages from state officials if the officials

acted either in bad faith or in “disregard

of settled, indisputable law.” Jd. at 321,

95 S.Ct. 992. To put it another way: a

public official may be held liable where

he, in subjective good faith, acts in disre-

gard of a person’s “clearly established

constitutional rights.” Jd. at 322, 95 S.Ct.

992. The Court now acts in these cases

with a recognition that prisoners are not

to be coddled, and prisons are not to be

operated as hotels or country clubs.

However, this does not mean that respon-

sible state officials, including the Ala-

bama Legislature, can be allowed to oper-

ate prison facilities that are barbaric and

inhumane. Let the defendant state offi-

cials now be placed on notice that failure

to comply with the minimum standards

set forth in the order of this Court filed

with this opinion will necessitate the clos-

ing of those several prison facilities here-

in found to be unfit for human confine-

ment.

406 F.Supp. at 331 (emphasis added). Thus,

defendants are precluded from now assert-

ing that they should not have known that

failure to meet the constitutional norms

44a

established in Pugh would violate Williams’

constitutional rights. Although this is not

preclusion in the sense that the good faith

defense was litigated in the earlier suit, the

determination of a constitutional violation

in Pugh effectively precludes the defense

because of the court’s clear delination of the

prisoners’ rights.

In precluding the assertion of a good

faith defense by an individual defendant,

however, we do not disallow the admission

_of evidence demonstrating the subjective

intent of a defendant. As discussed above,

a claim alleging a constitutional deprivation

of cruel and unusual punishment requires

proof of deliberate or callous indifference

on the part of each defendant. The focus

of this inquiry necessarily centers on indi-

vidual motives and reactions. Moreover,

evidence tending to prove deliberate or cal-

lous indifference is the same evidence which

would have been used to defeat a good faith

defense under the subjective criteria.

Fielder v. Bosshard, 590 F.2d 105, 110 (5th

Cir. 1979); see also Fowler v. Cross, 635

F.2d 476, 482 (5th Cir. 1981); Bogard v.

Cook, 586 F.2d 399, 412 (5th Cir. 1978), cert.

denied, 444 U.S. 883, 100 S.Ct. 173, 62

L.Ed.2d 113 (1979). Because of the re-

quired proof of deliberate or callous indif-

45a

ference, therefore, the subjective good faith

and intent of the individual defendants re-

main relevant even in light of the objectivi-

ty now associated with the good faith de-

fense.

Before closing our discussion of col-

lateral estoppel, we find it necessary to

comment on the distinction between the

findings of the district court in Pugh and

its subsequent injunction. Pugh has a pre-

clusive effect on the present case because

its findings established that the conditions

at the prison constituted cruel and unusual

punishment in violation of the eighth

amendment at the time Williams was as-

saulted. Because the failure to maintain

the prison in countenance with the constitu-

tion violated Williams’ right to be free from

cruel and unusual punishment, Williams

need not prove that he was the victim of a

constitutional violation. The obstacle now

facing Williams is the attachment of legal

responsibility for his injuries to one or more

of the defendants. This will require proof

of callous indifference.

Nevertheless, a defendant may not avoid

liability by relying on the timetable seen as

46a

having been incorporated in the district

court’s injunction in Pugh. Having made

his findings in Pugh, the district judge may

well have contemplated that a considerable

period of time would be necessary to correct

the deficiencies in the Alabama prisons.

See 406 F.Supp. at 332. Defendaiits iff this

case appear to have successfully argued

that they could not have been guilty of any

wrongdoing in continuing unconstitutional

conditions so long as the conditions were

corrected within the time allowed by the

Pugh injunction."* This simply is incorrect.

The district judge in Pugh did not under-

take to amend the constitution by suspend-

ing it for a certain period of time. The fact

that the court did not require correction of

the conditions by immediate mandatory in-

junction, does not absolve the state or the

16. The district court even instructed the jury

that this was a proper defense:

If you find that the defendants did not

violate the Court's order with respect to the

Stationing of guards at Holman Prison or

providing individual cells for medium securi-

ty prisoners because the order did not require

such accomplishment by January 10, 1978,

then the defendants would not be liable for

such failure to accomplish compliance of the

order by January 10, 1978.

Record, at 1238.

47a

individual defendants of liability for consti-

tutionally related injuries arising in the in-

terim. Time given in an injunction is no

license to exercise callous indifference for

awhile. Although contempt may be avoid-

ed during this time, the possibility of liabili-

ty continues to exist. Indeed, even in the

absence of the Pugh case, an inmate who

could prove injury resulting from unconsti-

tutionally cruel and unusual punishment

would have a viable cause of action. No

one is permitted to violate the constitution

until a judge has found the violation to

exist, and, where one has been found to

exist, no one is entitled to continue uncon-

stitutional action, free of liability, until the

time set in an injunction for its correction.

It is the finding of unconstitutionality in

Pugh which is relevant to the present case,

not the correction time limits included in

the Pugh injunction.

VI JURY INSTRUCTIONS

Williams also raises a series of challenges

to the jury instructions given by the trial

court. He complains further that the court

refused to give other relevant instructions.

We address each of these challenges indi-

vidually.

48a

Initially, Williams claims revers-

ible error in the district judge’s instruction

that the jury could consider the lack of

sufficient funds to comply with the Pugh

order in deciding whether defendants used

all reasonable effort to comply and acted in

good faith. Lack of funds, he argues, is not

a defense to a claim of deprivation of a

constitutional right. See Smith v. Sullivan,

611 F.2d 1039, 1043-44 (5th Cir. 1980); Wil-

liams v. Edwards, 547 F.2d 1206, 1212-13

(5th Cir. 1977); Wyatt v. Aderholt, 503 F.2d

1305, 1315 (5th Cir. 1974); Gates v. Collier,

501 F.2d 1291, 1319-20 (5th Cir. 1974). Al-

though defendants do not deny that lack of

funds generally will not defeat a claim

alleging a constitutional violation, they ar-

gue the unfairness of disallowing the de-

fense when officials are sued in their indi-

vidual capacities and are powerless to con-

trol legislative appropriations that would

facilitate compliance.

Defendants clearly may not escape liabili-

ty solely because of the legislature’s failure

to appropriate requested funds. In chal-

lenging the plaintiff's prima facie showing

of callous indifference, however, an individ-

ual defendant certainly may present evi-

dence of the limitations within which that

49a

defendant attempted to perform his duties

at Holman Prison. One such limitation

may have been the funding available to

comply with the constitutional norms. Be-

cause the element of callous indifference

focuses on a defendant’s intent, see Fielder

v. Bosshard, 590 F.2d 105, 109 (5th Cir. 1979),

if full compliance is beyond the control of a

particular individual, and that individual

can demonstrate that he accomplished what

could be accomplished within the limits of

his authority, then he cannot be said to

have acted with callous indifference. See

Scheuer v. Rhodes, 416 U.S. 232, 247, 94

S.Ct. 1683, 1691, 40 .L.Ed.2d 90 (1974); Sla-

vin v. Curry, 574 F.2d 1256, 1262 (5th Cir.

1978).

The issues raised in the present case are

distinguishable from those raised in cases

which generally adhere to the proposition

that lack of funds is not a defense to a

constitutional deprivation. This distinction

lies in the difference between a suit for

injunctive relief against a state and a suit

for damages against an individual state em-

ployee. The assumption underlying rejec-

tion of the lack of funds defense is that a

state is not required to operate a peniten-

tiary system. If, however, a state chooses

to operate a prison system, then each facili-

50a

ty must be operated in a manner consistent

with the constitution.” Thus, when a court

is considering injunctive relief against the

operation of an unconstitutionally cruel and

unusual prison system, it should issue the

injunction without regard to legislative fi-

nancing. By such an injunction, however,

the court does not order the prison to be

operated; it merely enjoins its being oper-

ated in an unconstitutional manner. The

state may undertake to operate its prison

system in countenance with the constitution

or it may choose to close it down. That

choice is the state’s and it is not dictated by

the court. Accordingly, the State of Ala-

17. Perhaps the best illustration of this assump-

tion is the oft quoted statement:

If Arkansas is going to operate a Penitentiary

System, it is going to have to be a system

that is countenanced by the Constitution of

the United States.

Holt v. Sarver, 309 F.Supp. 362, 385 (E.D.Ark.

1970), aff'd, 442 F.2d 304 (8th Cir. 1971) (quot-

ed in Gates v. Collier, 501 F.2d 1291, 1320 (5th

Cir. 1974), and Pugh v. Locke, 406 F.Supp. at

330-31.); see also Inmates of Henry County

Jail v. Parham, 430 F.Supp. 304, 305 (N.D.Ga.

1976) (“Having freely, voluntarily and wisely

chosen to own and operate a jail, the people

and officials of Henry County have entered into

a sphere of governmental action properly bur-

dened with some special responsibilities.”’).

5la

bama was precluded from pleading lack of

funds as a defense to operating prisons in

violation of the constitution. Pugh v.

Locke, 406 F.Supp. at 330-31.

In contrast, however, we are called upon

to consider the liability of individual state

employees for injuries suffered as a result

of the unconstitutional conditions. Unlike

the state, an individual defendant generally

has neither the power to operate nor close

down a prison. Moreover, we refuse to

adopt the position that an employee who

attempts to accommodate the constitutional

rights of prisoners in his charge, within the

financial limitations imposed, should, in-

stead, resign from his position because of

the realization that full compliance is im-

possible in the absence of adequate funding.

Indeed, the corrections official who walks

away could be said to act with greater

indifference than those who remain and

attempt to work within the system.

In essence, the availability of

funds, or lack thereof, is relevant in deter-

mining whether the individual is capable of

committing the constitutional wrong al-

leged. Although each prison employee

owes a duty to the inmates affected by his

function, that duty must be measured by

52a

the scope of his discretion and the extent of

his authority. See Procunier v. Navarette,

434 U.S. 555, 561, 98 S.Ct. 855, 859, 55

L.Ed.2d 24 (1978) (quoting Scheuer v. Rho-

des, 416 U.S. at 247-48, 94 S.Ct. at 1691-

92.). For example, an individual defendant

should be able to demonstrate that he had

insufficient authority to correct the consti-

tutional deficiencies in the prison. He also

should be permitted to demonstrate that he

did not have the resources necessary to

correct that deficiency.

We are careful to note, however, that

insufficient funds does not give rise to a

separate defense. Evidence of the circum-

stances under which an individual defend-

ant was required to perform his duties sim-

ply goes to the issue of callous indifference.

To prove actionable conduct or callous indif-

ference, Williams must demonstrate that a

particular defendant had the capability (au-

thority and means) to provide adequate se-

curity and did not do so. Stated another

way, a defendant who was without the au-

thority or means to provide the necessary

security could rebut a charge of callous

indifference.

[25] Williams’ second challenge to the

district judge’s instructions centers on the

appropriate characterization of proximate

cause. Rather than using the pattern in-

structions for proximate cause which had

been requested by plaintiff,’* the court in-

stead referred to actions which “proximate-

ly caused or proximately contributed to the

injury.” The court’s instruction, Williams

claims, misled the jury by failing to draw

18. Plaintiff's Requested Jury Instructions Nos.

25 and 26 are representative of the proximate

cause instructions requested by Williams:

CONCURRING AND COMBINING CAUSES

DEFINITIONS

The acts or failures to act of two or more

persons may concur and combine to proxi-

mately cause injuries and damages. Causes

‘concur and combine’ when they join to pro

duce a given result. Adopted from Alabama

Pattern Jury Instructions, # 28-04.

CONCURRING AND COMBINING CAUSES

OF DEFENDANTS

If you are reasonably satisfied from the evi-

dence in this case that all of the defendants’

acts or failures to act concurred and com-

bined to proximately cause the injunes and

damages claimed by the plaintiff, then each

defendant is liable to the plaintiff. Adapted

from Alabama Pattern Jury Instructions,

# 28-05.

54a

attention to the fact that two independent

acts, namely the failure of prison officials

to comply with the Pugh order plus Cook’s

independent act of assaulting Williams,

could combine to produce injury, and each

defendant would be equally responsible. In

addition, he argues, the jury may have been

led to believe defendants could not be liable

if the state legislature contributed to Wil-

liams injury by failing to appropriate ade-

quate funds.

Before evaluating Williams challenge, it

is important to again note the two levels of

causation and the effect of collateral estop-

pel. Williams must prove that each individ-

ual defendant proximately caused the un-

constitutional conditions in the prison.

Once this causal link is demonstrated his

task is complete. Defendants are precluded

from contending that the unconstitutional

condition was not at least a proximate

cause of Williams’ injuries. Supra, part V,

C. Nevertheless, in establishing the initial

causal link, the proximate cause instruction

of the district court remains crucial because

the acts and omissions of many individuals

may have combined to cause the unconstitu-

tional conditions at Holman Prison.

Alabama law governs the definition of

proximate cause in this case. See 42 U.S.C.

55a

§ 1988. Accordingly, the instructions re-

quested by Williams were adapted from

Alabama Pattern Jury Instructions as ap-

proved by the Alabama Supreme Court.

See Ala. Pattern Jury Instructions No. 28.-

04, 28.05, 28.06 (1973). Each instruction

was designed to explain clearly the estab-

lished law of proximate cause in Alabama

that an individual may be liable even when

he is not the sole cause of the injuries. See

Watkins v. United States, 589 F.2d 214, 219

(5th Cir. 1979) (applying Alabama law); Al-

abama Power Co. v. Taylor, 293 Ala. 484,

498, 306 So.2d 236, 249 (1975); Lawson v.

General Telephone, 289 Ala. 283, 289, 267

So.2d 132, 138 (1972); Chambers v. Cox, 222

Ala. 1, 3, 130 So. 416, 418 (1930).

The district court, however, refused - to

use the requested instructions and instead

made abstract references to “proximate

contribution.” Although the record indi-

cates that the court understood the nature

of proximate causation,’® we cannot say

that its instructions clearly explained to the

jury the meaning of concurring causes.

Nor did the court recognize the two levels

of causation and the effect of collateral

estoppel. For these reasons, its proximate

19. See Record, at 1129-30.

56a

cause instructions were inadequate. The

better approach would have been to adapt

the pattern instructions to level one causa-

tion by explaining concurring causes in

terms of defendants’ acts or omissions and

the unconstitutional conditions at the pris-

on.

Williams also assigns as error the

trial court’s refusal to instruct the jury that

he could recover nominal damages without

proof of actual injury for the denial of an

absolute constitutional right. See Carey v.

Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55

L.Ed.2d 252 (1978) (nominal damages are

recoverable for a denial of due process

without proof of actual injury). He claims

that an absolute constitutional right is in-

volved because he asserts claims directly

under the eighth and fourteenth amend-

ments, as well as under the civil rights

statutes. Accordingly, he claims two er-

rors: first, that the court failed to instruct

the jury on his alleged direct constitutional

action, and second, that no reference was

made to the possibility of nominal damages.

Williams’ direct constitutional violation

theory is premised on the implication of a

57a

Bivins-type right of action under the

eighth and fourteenth amendments of the

Constitution. Bivins v. Six Unknown Fed-

eral Narcotics Agents, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971). Although the

Supreme Court has implied a direct right of

action under the eighth amendment against

federal officials, Carlson v. Green, 446 U.S.

14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), a

similar right of action should not be implied

against state officials. When Congress has

provided an adequate alternative remedial

scheme, which is intended to be a substitute

for direct recovery under the constitution, a

Bivens -type action is inappropriate. Id. at

18-19, 100 S.Ct. at 1472; Davis v. Passman,

442 U.S. 228, 245, 99 S.Ct. 2264, 2277, 60

L.Ed.2d 846 (1979); Bivins, 403 U.S. at 397,

91 S.Ct. at 2005. In implying a direct right

of action against federal officials in Carl-

son, the Court explained that the plaintiff's

only alternative right of dction, suit under

the Federal Tort Claims Act (FTCA), 28

U.S.C. § 2680(h), was intended to comple-

ment rather than replace a direct constitu-

tional action. 446 U.S. at 19-23, 100 S.Ct.

at 1472-74. In contrast, Williams’ alterna-

tive remedy under section 1983 against the

state officials provides an adequate substi-

tute for direct action under the eighth and

fourteenth amendments. See Dean v. Glad-

58a

ney, 621 F.2d 1331, 1336-87 n. 14 (5th Cir.

1980), cert. denied, 450 U.S. 983, 101 S.Ct.

1521, 67 L.Ed.2d 819 (1981); Hearth, Inc. v.

Department of Public Welfare, 617 F.2d

381, 382-83 (5th Cir. 1980). Because “the

inquiry is whether Congress has created

what it views as an equally effective reme-

dial scheme,” 446 U.S. at 22, 100 S.Ct. at

1474, we conclude that the effectiveness of

Williams’ claim under section 1983 pre-

cludes the implication of a direct constitu-

tional action under the eighth and four-

teenth amendments against state officials.™

20. In Carlson, the Court articulated four rea-

sons why the FTCA was an inadequate substi-

tute for a direct constitutional action: ineffec-

tive deterrence, no provision for punitive dam-

ages, no provision for jury trials, and extensive

reliance on non-uniform state law. 446 U.S. at

21-23, 100 S.Ct. at 1473-74. Actions brought

under § 1983, on the other hand, permit suits

directly against state officials in both their indi-

vidual and official capacities and generally al-

low for punitive damages and jury trials. In

addition, a plaintiff acting under § 1983 can

rely on federal law at least insofar as defining

the required constitutional deprivation. See 42

U.S.C. § 1988 (1976) (state law will be applied

only insofar as it is not inconsistent with the

Constitution and laws of the United States).

The similarity between a direct constitutional

claim and a suit under § 1983 also is evident

[footnote contunued |

59a

The trial court therefore correctly refused

to instruct the jury on this claim.

Similarly we find Williams’ claim

for nominal damages to be without merit

and his reliance on Carey v. Piphus, supra

misplaced. Carey stands for the proposition

that once a plaintiff has successfully main-

tained a cause of action for a deprivation of

constitutional due process, then nominal

damages may be recovered in the absence

of proof of actual injury. See 435 U.S. at

266, 98 S.Ct. at 1053. The problem in Carey

was that plaintiffs had suffered a constitu-

tional deprivation, but could not demon-

strate actual injury from that deprivation.

Williams, on the other hand, clearly has

suffered actual injury which is attributable

to the unconstitutional conditions at Hol-

man Prison. His difficulty is in attaching

individual responsibility for that depriva-

tion. In the absence of individual responsi-

bility, even nominal damages are not recov-

from a defendant’s perspective because both

allow for a good faith defense. Compare

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683,

40 LEd.2d 90 (1974) (good faith immunity for

state officials) with Butz v. Economou, 438 U.S.

478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (good

faith immunity for federal officials).

60a

erable. Cf. Familias Unidas v. Briscoe, 619

F.2d 391, 402-03 (5th Cir. 1980) (a good

faith defense will defeat a claim for nomi-

nal damages). If the requirements of indi-

vidual callous indifference and causation

are satisfied, then the issue of damage lia-

bility arises. At that stage of the litigation

Williams can introduce evidence of his actu-

al injuries in lieu of any claim for nominal

damages.

Finally, included in the district

judge’s instructions was a statement that

the State of Alabama could not be com-

pelled to pay money judgments against of-

ficials sued in their individual capacity:

There are now eight defendants who

are sued as individuals in this lawsuit.

Neither the State of Alabama nor the

Board of Corrections is, itself, a party.

These defendants were originally sued in

their official as well as their individual

capacities. The Court dismissed them in

their official capacities because any dam-

ages awarded against them in their offi-

cial capacities would have been against

the state, and the state cannot be ordered

to pay damages in such a case. There-

fore, the defendants remain in this case

6la

solely in their individual capacities, and

any damages awarded are against them

as individuals, and the state cannot be

required by law to pay such damages.

Record, at 1232. Not only was this state-

ment irrelevant to the issues of liability and

damages, see Fed.R.Evid. 411 (excluding ev-

idence of liability insurance), but in light of

section 41-9-74 of the Alabama Code,”!

which directs the Board of Adjustments to

pay up to $100,000 to satisfy final judg-

ments against corrections officials, it may

well have been erroneous.

The existence of a collateral source of

revenue to pay a judgment generally is

excluded from evidence on two grounds.

First, it simply has no bearing on the fault

of a defendant. See 10 J. Moore, Moore’s

Federal Practice § 411.03. But more sig-

nificantly, the absence or presence of a col-

lateral source may induce a jury to decide a

case on improper grounds. Advisory Com-

mittee’s Note to Fed.R.Evid. 411. For ex-

-ample, if the court had informed the jury of

the existence of section 41-9-74, the jury

may have been more likely to hold defend-

ants liable, believing that some of the loss

21. Supra note 6.

62a

would be paid by the state. See Posttape

Associates v. Eastman Kodak Co., 537 F.2d

751, 758 (3d Cir. 1976). On the other hand,

the court’s explicit statement that the state

could not be required to pay may have

created undue sympathy for defendants to

the prejudice of Williams. See Fed.R.Evid.

403. Accordingly, we find that the instruc-

tion suggesting that the state could not be

required to pay any part of the judgment

against the defendant officials and employ-

ees sufficiently prejudiced Williams as to

warrant reversal. The Court should have

remained silent on the issue.

VII DIRECTED VERDICT

Williams final objection questions the

propriety of the directed verdict entered in

favor of defendants Raines and Chancery.

Chancery was captain of the guard, but was

not at the prison at the time of the assault.

Raines, who normally was an assistant cap-

tain of the guard, was acting captain the

day of the assault and was the first guard

to arrive at the scene of the attack. We

reverse the court’s direction of a verdict to

the extent that the liability of these two

defendants should be reappraised in light of

applicable principles set forth above.

63a

For these reasons we REVERSE and RE-

MAND this case for further proceedings

consistent with this opinion.

64a

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Eleventh Circuit

ill

No. 81-7037

D.C. Docket No. 79-5-N

BOBBY WILLIAMS,

Plaintiff-Appellant,

versus

LARRY BENNETT, ET AL,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Alabama

Before HILL and HATCHETT, Circuit Judges, and

GOLDBERG*, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Middle District of Alabama, and was argued by counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment

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

hereby REVERSED; and that this cause be, and the same

is hereby REMANDED to said District Court in accord-

ance with the opinion of this Court;

*Honorable Irving L. Goldberg, U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

65a

It is further ordered that defendants-appellees pay to

plaintiff-appellant, the costs on appeal to be taxed by the

Clerk of this Court.

October 29, 1982

66a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7037

BOBBY WILLIAMS,

Plaintiff-Appellant,

versus

LARRY BENNETT, et al.,

Defendants- Appellees.

[Filed DEC 20 1982]

Appeal from the United States District Court

for the Middle District of Alabama

ON PETITION FOR REHEARING

(December 20, 1982)

Before Judges HILL, HATCHETT, Circuit Judges, and

Judge GOLDBERG, Senior Judge.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERERFOR THE COURT

/s/ James C. Hill

United States Circuit Judge

67a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-7037

BOBBY WILLIAMS,

Plaintiff-Appellant,

Vv .

LARRY BENNETT,ET AL,

Defendants-Appellees.

[Filed FEB 16 1983]

Appeal from the United States District Court

for the Middle District of Alabama

ORDER

The court filed its opinion on October 29, 1982.

Twenty days later, Defendants filed their petition for

rehearing pursuant to Local Rule 26(b). The court

denied the petition on December 20, 1982 but due to a

clerical error, did not serve defendants’ counsel with a

copy of the order. The court then issued its mandate on

January 14, 1983. In order to prevent injustice and to

put the parties in the same position in which they would

have been had counsel been properly notified; We recall

the mandate. Local Rule 27(b). On motion of counsel,

we also hereby stay the mandate for fifty-one (51) days

in accordance with Federal Rule of Appellate Procedure

41 pending application to the Supreme Court for a

writ of certiorari.

/s{James C. Hill

UNITED STATES CIRCUTT JUDGE

68a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action No. 79-5-N

[Filed Dec 9 1980]

BOBBY WILLLAMS,

Plaintiff,

VS.

LARRY BENNETT: JOHN E. VICKERS: DR. MARION

CARROLL; DR. THOMAS F. STATON; J. LOUIS

WILKINSON; W.S. HAMNER; JOE OLIVER; and

JUDSON C. LOCKE, JR.

Defendants.

JUDGMENT

On December 8, 1980, after this cause had been sub-

mitted to a jury, a verdict was returned by said jury as

follows:

“We, the Jury, find the issues in favor of the defen-

dants Larry Bennett; John E. Vickers; Dr. Marion

Carroll; Dr. Thomas F. Staton; J. Louis Wilkinson;

W.S. Hamner; Joe Oliver; and Judson C. Locke, Jr.

This the 8 day of December, 1980.

s/ Marie Johnson

Foreperson”’

It is, therefore, the ORDER, JUDGMENT and DE-

CREE of this Court that the plaintiff take nothing by his

complaint and that the defendants Larry Bennett, John

E. Vickers, Dr. Marion Carroll, Dr. Thomas F. Staton, J.

69a

Louis Wilkinson, W.S. Hamner, Joe Oliver and Judson

C. Locke, Jr., have judgment on the verdict against the

plaintiff.

The Court granted plaintiff's motion to proceed in

forma pauperis in this cause on November 28, 1980; con-

sequently, no costs are assessed in this action.

DONE this the 9th day of December, 1980.

/s/ Truman Hobbs

UNITED STATES DISTRICT JUDGE

70a

APPENDIX F

U.S. SUPREME COURT REPORTS 57 L Ed 2d

‘438 US 781)

STATE OF ALABAMA et al., Petitioners.

JERRY LEE PUGH et al

438 US 781, 57 L Ed 2d 1114, 98 S Ct 3057

(No. 77-1107]

Decided July 3, 1978

SUMMARY

Inmates and former inmates of the Alabama prison system sued the state

of Alabarma and the Alabama Board of Corrections. as wel] as a number of

Alabama prison officials. alleging that conditions in Alabama prisons consti-

tuted cruel and unusual punishment in viclation of the Eighth and Four-

teenth Amendments. The United States District Court for the Middle

District of Alabama agreed. and issued an order proscribing measures

designed to eradicate cruel and unusual punishment in the system 406 F

Supp 318). The United States Court of Appeals for the Fifth Circuit af-

firmed, but modified some aspects of the order 559 F2d 283

Granting certiorari, the United States Supreme Court remanded the case

to the Court of Appeals with instructions to order the dismissal of Alabama

and the Evard of Corrections from the action. In a per curiam opinion.

expressing the views of Burcer. Ch J.. and Brennan, Stewart, WHITE,

BLackmwun, and Rennevuist, JJ. it was held that the suit against Alabama

and the Board of Corrections was barred by the Eleventh Amendment, since

Alabama had not consented ‘and under the Alabama Constitution. could not

consent) to the filing of such a suit

BRENNAN and MARSHALL. JJ. dissented.

Stevens, J.. dissenting, stated that the inclusion of Alabama and the

Board of Corrections as defendants was harmless error not justifying the

exercise of the Supreme Court's certiorari jurisdiction

Briefs of Counsel, p 1344, infra

1114

cee

ila

OPINION OF THE COURT

[438 US 781)

Per Curiam.

{1] Respondents, inmates or for-

mer inmates of the Alabama prison

system, sued petitioners, who in-

clude the State of Alabama and the

Alabama Board of Corrections as

well as a number of Alabama offi-

cials responsible for the administra-

tion of its prisons, alleging that con-

ditions in Alabama prisons consti-

tuted cruel and unusual punishment

in violation of the Eighth and Four-

teenth Amendments. The United

States District Court agreed end is-

sued an order prescribing measures

designed to eradicate cruel and unu-

sual punishment in the Alabama

prison system. The Court of Appeals

for the Fifth Circuit affirmed but

modified some aspects of the order .

which it believed exceeded the limits

of the appropriate exercise of the

court’s remedial powers. 559 F2d

283.

[2a] Among the claims raised here

by petitioners is that the issuance of

72a

a mandatory injunction against the

State of Alabama and the Alabama

Board of Corrections is unconstitu-

tional because the Eleventh Amend-

ment prohibits federal courts from

entertaining suits by private parties

against States and their agencies.

The Court of Appeals did not ad-

dress this contention, perhaps be-

cause it was of the view that in light

(438 US 782]

the numerous individual defend-

ants in the case dismissal as to these

two defendants would not affect the

scope of the injunction. There can be

no doubt, however, that suit against

the State and its Board of Correc-

tions is barred by the Eleventh

Amendment, unless Alabama has

consented to the filing of such a suit.

Edelman v Jordan, 415 US 651, 39 L

Ed 2d 662, 94 S Ct 1347 (1974); Ford

Motor Co. v Department of Trea-

sury, 323 US 459, 89 L Ed 389, 65 S

Ct 347 (1945); Worcester County

Trust Co. v Riley, 302 US 292, 82 L

Ed 268, 58 S Ct 185 (1937). Respon-

dents do not contend that Alabama

has consented to this suit, and it

appears that no consent could be

given under Art l, § 14, of the Ala-

bama Constitution, which provides

that “the State of Alabama shall

never be made a defendant in any

court of law or equity.” Moreover,

the question of the State’s Eleventh

Amendment immunity is not merely

academic. Alabama has an interest

in being dismissed from this action

in order to eliminate the danger of

being held in contempt if it should

fail to comply with the mandatory

injunction.! Consequently, we grant

the petition for certiorari limited to

Question 2 presented by petitioners,’

reverse the judgment in part, and

remand the case to the Court of

1. [2b] Respondents contend that petition-

ers failed to raise the Eleventh Amendment

issue in the District Court. The Court held in

Edelman v Jordan, 415 US 651, 678, 39 L Ed

“the Eleventh Amendment defense s

ciently partakes of the nature of a juris

tional bar so that it need not be raised in

trial court... .”

2. “Whether the mandatory injunction is

sued against the State of Alabama and the

Alabama Board of Corrections violates the

State’s Eleventh Amendment immunity or

exceeds the jurisdiction granted federal] courts

by 42 USC § 1983 [42 USCS § 1983}.”

74a

Appeals with instructions to order

the dismissal of the State of Ala-

bama and the Alabama Board of

Corrections from this action.

So ordered.

Mr. Justice Brennan and Mr. Jus-

tice Marshall dissent.

SEPARATE OPINION

[438 US 783]

Mr. Justice Stevens, dissenting.

This Court is much too busy to

spend its time correcting narmless

errors. Nothing more is accom-

plished by the summary action it

takes today.*

The Court does not question the

propriety of the injunctive relief en-

*Surely the Court does not intend to re

solve summarily the issue debated by my

Brothers in their separate opinions in Hutto v

Finney, 437 US 678, 700, 57 L Ed 2d 522, 98S

Ct 2565 (Brennan J., concurring), and 708-710

n 6, 57 L Ed 2d 522 (Powell, J., concurring in

part and dissenting in part).

/Ja

tered by the District Court and up-

held by the Court of Appeals. Strik-

ing the State’s name from the list of

parties will have no impact on the

effectiveness of that relief. If the

state officers disobey the injunction,

financial penalties may be imposed

on the responsible state agencies.

Hutto v Finney, 437 US 678, 57 L Ed

2d 522, 98 S Ct 2565. The District

Court’s asserted error did not trou-

ble the Court of Appeals because it

has no practical significance. It does

not justify the exercise of this

Court’s certiorari jurisdiction. I re-

spectfully dissent.

76a

APPENDIX G

N. H. NEWMAN et al.,

Plaintiffs-Appellees,

Vv.

STATE OF ALABAMA et al.,

Defendants-Appellants.

Jerry Lee PUGH, for himself and

others similarly situated,

Plaintiffs-Appellees,

Judson C. LOCKE, Jr. and State of

Alabama, et al.,

Defendants-Appellants.

Worley JAMES et al.,

Plaintiffs-Appellees,

Vv.

George C. WALLACE et al.,

Defendants-Appellants.

No. 76-2269.

United States Court of Appeals,

Fifth Circuit.

Sept. 16, 1977.

Consolidated actions were filed by

inmates of Alabama penal institution for

77a

declaratory and injunctive relief in re-

spect to alleged deprivations of their

Eighth and Fourteenth Amendment

rights. The United States District Court

for the Middle District of Alabama, at

Montgomery, Frank M. Johnson, Jr., J.,

406 F.Supp. 318, entered judgment for

plaintiffs, and defendants appealed. The

Court of Appeals, Coleman, Circuit

Judge, held that: (1) although, in respect

to steps taken by the district court to

insure reasonably adequate food, cloth-

ing, shelter, sanitation, necessary medical

attention, and personal safety for Ala-

bama state prisoners, some of the steps

taken in regard to those matters, if con-

sidered in isolation, may have gone be-

yond constitutional mandates, they were

nevertheless justifiably invoked for the

eradication of Eighth Amendment prison

conditions; (2) unless intended to apply

only to existing facilities, no constitu-

tional basis could be discerned for the

requirement that Alabama state prison-

ers be housed in individual cells, nor

could the Court of Appeals agree that

“design” standards, without’ more,

amount to a per se constitutional limita-

tion on the number of prisoners which

may be housed in a particular prison fa-

78a

cility; (3) while the district court was

entitled to take appropriate steps to in-

sure compliance with its remedial decree

pertaining to unconstitutional conditions

in Alabama state prisons, its establish-

ment and appointment of a human

rights committee would not be approved;

rather, a more reasonable, less intrusive,

and more effective approach would have

been to name one monitor for each of

the prisons involved, with full authority

to observe and to report its observations

to the court, with no authority to inter-

vene in daily-prison operations; (4) fail-

ure of prison authorities to provide a

rehabilitation program, by itself, does

not constitute cruel and inhuman punish-

ment, and (5) a state has no Eighth

Amendment obligation to provide prison-

ers with opportunities to obtain a basic

education, to attend vocational school,

and to attend a transitional program pri-

or to release.

Affirmed and remanded.

Appeals from the United States Dis-

trict Court for the Middle District of

Alabama.

79a

Before COLEMAN, Circuit Judge,

KUNZIG*, Judge, and GEE, Circuit

Judge.

COLEMAN, Circuit Judge.

The Eighth Amendment to the

Constitution of the United States, rein-

forced by the Fourteenth Amendment,

prohibits the imposition of cruel and un-

usual punishment. It is much too late in

the day for states and prison authorities

to think that they may withhold from

prisoners the basic necessities of life,

which include reasonably adequate food,

clothing. shelter, sanitation, and neces-

sary medical attention, Gates v. Collier, 5

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

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

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

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

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

It should not need repeating that

compliance with constitutional standards

may not be frustrated by legislative in-

action or failure to provide the necessary

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

Smith v. Sullivan, 5 Cir., 1977, 5538 F.2d

373.

* Judge of the United States Court of Claims,

sitting by designation.

80a

On the other hand, lawful in-

carceration necessitates withdrawal of or

limitations upon many individual privi-

leges and rights. A prisoner does not

retain constitutional rights that are in-

consistent with his status as a prisoner

or with the legitimate penological objec-

tives of the corrections system. Wide

ranging deference must be accorded the

decisions of prison administrators. They,

and not the courts, must be permitted to

make difficult judgments concerning

prison operations, Jones v. North Caroli-

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

— US. , 97 S.Ct. 2532, 53 L.Ed.2d

In his concurring opinion in

Jones, Mr. Chief Justice Berger wrote

that in penal matters the federal courts

may not “second guess” legislatures and

prison administrators except in the most

extraordinary circumstances.

The present case is somewhat similar

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

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

claimed that the judgment of the Dis-

trict Court represented an unwarranted

intrusion by the federal judiciary into

the discretionary authority committed to

them by state and local law to perform

their official functions. The Supreme

Court found itself “substantially in

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

8la

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

“assertedly pervasive pattern of illegal

and unconstitutional mistreatment by

police officers’’.

The Supreme Court said,

“Where, as here, the exercise of au-

thority by state officials is attacked,

federal courts must be constantly

mindful of the ‘special delicacy of the

adjustment to be preserved between

federal equitable power and state ad-

ministration of its own law’. * * *

Even in an action between private in-

dividuals, it has long been held that an

injunction is ‘to be used sparingly, and

only in a clear and plain case’.

The Court concluded that when the

District Court injected itself into the in-

ternal disciplinary affairs of the Phila-

delphia Police Department, a state agen-

cy, it had departed from the controlling

precepts of federalism in determining

the availability and scope of equitable

relief. The judgment of the Court of

Appeals affirming the decree of the Dis-

trict Court which directed the imposition

of a comprehensive program for dealing

adequately with civilian complaints was

reversed.

This does not mean that Constitutional

standards are not to be scrupulously ob-

82a

served or that the statutes designed to

enforce that objective are to be denied

full effect. It does mean in the prison

context that federal courts should keep

their eyes on the main objective, the

Eighth Amendment command for the

eradication of cruel and unusual punish-

ment. The remedy must be designed to

accomplish that goal, not to exercise ju-

dicial power for the attainment of what

we as individuals might like to see ac-

complished in the way of ideal prison

conditions. There are those who would

argue that imprisonment in any form is

cruel and unusual. The Amendment,

however, recognizes the right to punish

for criminal conduct as long as that pun-

ishment does not escalate to the cruel

and unusual.

For example, we have held that visita-

tion privileges are matters subject to the

discretion of prison officials, McCray Vv.

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

1334.

Failure of prison authorities to provide

a rehabilitation program does not by it-

self constitute cruel and unusual punish-

ment, Ibid, at 1335.

Federal courts are extremely re-

luctant to limit the freedom of prison

officials to classify prisoners as they, In

83a

their broad discretion, may deem appro-

priate, Ibid, at 13834; Young v. Wain-

wright, 5 Cir., 1971, 449 F.2d 338.

State penitentiaries are occupied by

convicted felons, either ineligible for or

found to be unworthy of probation. By

its very nature, the operation of such a

prison is a dangerous undertaking.

Time and time again, experience has

dramatically taught that the manage-

ment and control of prisons, the preven-

tion of mass violence within prisons, and

the safe retention of convicts within

prison walls, present problems of the

first magnitude, in which failures occur

all too often, as recently demonstrated at

Brushy Mountain, Tennessee. There was

intense nationwide interest when a noto-

rious prisoner escaped but not much con-

cern had previously been shown for the

problems of prison officials in trying to

hold him inside the walls.

The authority to manage and con-

trol a felony prison should never be un-

duly restricted or divided. That authori-

ty must repose in one well identified

place, limited only by the requirements

of the law.

84a

This appeal is concerned with the rem-

edies prescribed by the very able District

Court for the eradication of cruel and

unusual punishment in the Alabama

State Prison System, Pugh v. Locke, 406

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

federal level this involves a comparative-

ly new field of the law. It was not until

1962 that the Supreme Court applied the

Eighth Amendment ban to the states

through the Fourteenth Amendment,

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

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

The State concedes that the evidence

established excessive overcrowding in

these prisons, that there were not suffi-

cient guards to reasonably protect the

inmates from one another, and that the

overcrowding was primarily responsible

for and exacerbated all the other ills of

the penal system. As detailed in its pub-

lished opinion, other indefensible condi-

tions were found by the District Court,

findings clearly supported by the evi-

dence.

At the outset, then, the case is reduced

to a constitutional appraisal of the reme-

dies required of the State. The State

contends that in fashioning those reme-

85a

dies the District Court “exceeded its ju-

dicial power and abused its discretion”.

[8] Our first response is that the de-

termined efforts of the highly dedicated

District Judge to put an end to unconsti-

tutional conditions in the Alabama pris-

on system merit high commendation.

We cannot believe that the good people

of a great state approved the prison situ-

ation demonstrated by the evidence in

this case. We note, too, that for more

than a year funds for an entirely new

prison have been available as the result

of legislative action, which is likewise

commended. A state has no higher duty

than the preservation of its governmen-

tal integrity by the enforcement of its

own laws, which inescapably includes the

maintenance of an effective state prison

system. This Court expresses the hope

that the difficulties encountered in nam-

ing a location for the new prison will be

speedily resolved.

Our real issue is whether in striv-

ing to attain constitutional objectives the

District Court in a few respects went

impermissibly beyond the requirements

of the federal constitution; more specifi-

cally, did the Court supersede the duly

constituted state authorities in the per-

formance of vital state functions rather

86a

than compelling those authorities to per-

form those functions in a constitutional

manner? We all understand, of course,

that federal courts have no authority to

address state officials out of office or to

fire state employees or to take over the

performance of their functions. Most

assuredly, however, in proper cases a

federal court can, and must, compel state

officials or employees to perform their

official duties in compliance with the

Constitution of the United States.

At the outset we hold that the

steps taken by the District Court to en-

sure reasonably adequate food, clothing,

shelter, sanitation, necessary medical at-

tention, and personal safety for the pris-

oners were within its sound discretion

and will not be disturbed on appeal.

Some of the steps in regard to these

matters, if considered in isolation, may

have gone beyond constitutional man-

dates but they were justifiably invoked

for the eradication of Eighth Amend-

ment conditions. We do not pause to

discuss a number of state contentions

which are foreclosed by our opinion in

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

F.2d 1206, decided after this appeal was

filed and briefed.

There are a few features of the case,

however, in which we are of the opinion

87a

that less intrusive, but equally effective,

measures should have been taken by the

District Court. An adjustment of these

matters within constitutional bounds

should not hamper or impede the attain-

ment of an effective, constitutionally op-

erated state penal system. As to these

matters, we think some modifications are

in order. With those modifications, the

judgment of the District Court will be

affirmed and the case remanded for fur-

ther proceedings not inconsistent here-

with.

Unless intended to apply only to

existing facilities we do not discern the

constitutional basis for the requirement

that Alabama state prisoners shall be

housed in individual cells, nor can we

agree that “design” standards, without

more, amount to a per se constitutional

limitation on the number of prisoners

which may be housed in a particular

prison facility. Those who design pris-

ons are not vested with either the duty

or the power to prescribe constitutional

standards as to prison space. Assuming

that the District Court intended these

limitations to apply only to presently ex-

isting prisons and not to those hereafter

88a

to be constructed the judgment in these

respects is affirmed.

The Court required that all new prison

construction should provide sixty square

feet of space per prisoner. We remand

this requirement to the District Court

for further consideration in the light of

our opinion in Williams v. Edwards, 547

F.2d, at 1215.

ITT

The District Court established and ap-

pointed a “Human Rights Committee”,

composed of 39 individuals. Whether

they were qualified by training or expe-

rience in the operation of a state prison

system is not shown. At State expense,

the Committee was authorized to employ

a fulltime staff consultant, other special-

ists, and a fulltime clerk-stenographer.

The Committee members were to be

compensated at the same rate as that

paid the Alabama State Board of Correc-

tions.

The Committee was authorized to mo-

nitor implementation of the standards

prescribed by the Court’s decree as well

as those prescribed in Newman v. Ala-

bama.' The Order provided that

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

Cir., 1974, 503 F.2d 1320, cert. dened 421 US

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

89a

“(T]he Committee may at reasonable

times inspect the state prison facilities,

interview inmates, and inspect institu-

tional records. The Committee shall

review plans for implementation of

this decree to ensure that they com-

port with minimum standards set

forth. . . .. The Committee shall

be authorized to take any action [em-

phasis added] reasonably necessary to

accomplish its function.”

Our initial reaction is that “reviewing

plans for implementation of this decree

to ensure that they comport with mini-

mum standards set forth” could more

properly have been assigned to the mag-

istrate or to a master, qualified to hold

hearings, make findings of fact, and re-

port to the Court for its approval or

disapproval. Moreover, the authority to

“take any action’’, with no accompany-

ing standards or limitations, could

amount, in practical effect, to turning

the administration of the prisons over to

the Committee, as, in some respects, ap-

pears to have occurred.

It may be that in setting up the Com-

mittee the Court had in mind the ap-

pointment of numerous biracial commit-

tees in school desegregation cases. The

analogy is not altogether inapposite but

90a

we are not aware of any school desegre-

gation decree in this Circuit which au-

thorized such committees to do more

than assemble information, confer, ad-

vise, and make representations to the

school board and the court. They did

not participate in “day to day” school

operations, they received no compensa-

tion, and their function did not have ei-

ther the appearance or the effect of su-

perseding school boards or faculties in

the daily administration of the school

systems. Additionally, the circumstances

surrounding the operation of schools are

quite different to those prevailing in the

operation of a penitentiary.

The State asserts, and it is not disput-

ed, that in a number of instances prison

authorities and their counsel were not

notified of meetings between committee

members and the District Court with

reference to prison operations; there-

fore, state counsel were unable to partic-

ipate or to be heard.

The State further asserts that the

Committee impermissibly interfered with

the Alabama Board of Corrections and

its duly authorized agents in the exercise

of powers and duties exclusively con-

ferred upon them by Alabama law.

9la

We have examined numerous letters

appearing in the printed Appendix,

signed by the Chairman of the 39 mem-

ber Committee, addressed to the Ala-

bama Board of Corrections or its agent,

in which the addressees were directed to

take specified action in regard to certain

matters. These letters state that they

were written at the direction of the Dis-

trict Court.

From the record, we are left with the

firm conviction that the Committee un-

doubtedly did impermissibly intrude, and

had every appearance of impermissibly

intruding, upon functions properly be-

longing to the daily operation of the Al-

abama prison system. Prison officials

cannot be expected to perform in an ef-

ficient or an effective manner if they

are required to stay in line with so nu-

merous a Committee, at the same time

constantly confronted with the spectre of

federal contempt of court.

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

trict Court could not take and should not

have taken appropriate steps to ensure

compliance with its remedial decree. We

think, however, that a more reasonable,

less intrusive, more effective approach

would have been te name one monitor

for each of the prisons involved, with

92a

full authority to observe, and to report

his observations to the Court, with no

authority to intervene in daily prison op-

erations.

The use of a single monitor was the

approach, not disapproved by this Court,

in Gates v. Collier, supra.

The oversight of the proposed moni-

tors might well be placed in the hands of

a magistrate or a master, who could deal

with alleged, but disputed, non-compli-

ance in findings of fact and conclusions

of law, subject to the ultimate decision

of the District Judge, where appropriate.

By the single monitor method, the

prison authorities will be diverted from

the execution of their duties to the ex-

tent of conferring and cooperating with

only one court-authorized individual. As

a matter of fact, informal conferences

between the warden and only one indi-

vidual holding a charter from the Court

would likely put an end to many prob-

lems without any necessity for further

reference.

Such a monitor should be a person of

undeniable qualifications, carefully cho-

sen, hopefully with experience in the op-

eration of a state or federal prison sys-

tem which has not been in litigation over

failure to abide by the Constitution.

93a

Upon remand, and no later than thirty

days from the receipt of our mandate,

the District Court should dissolve the 39

member Committee and its functions

should be terminated. The Court should

name a monitor for each of the prisons

which are the subject of the remedial

decree. The guidelines for the monitors,

and the duties of the prison authorities

as to their cooperation with those moni-

tors, should be specifically spelled out by

an appropriate order so that none of

those involved will suffer any reasonable

doubt as to what is required of both

monitors and prison officials.?

When so appointed, and their func-

tions defined, the monitors may be paid

reasonable compensation, consistently

with their qualifications and experience,

to be recovered from the State of Ala-

bama as a part of the reasonable costs of

this litigation.

Since the order appointing the 39

member Committee was not void ab ini-

tio the compensation and expense of its

members and staff as heretofore fixed

by the District Court will stand undis-

turbed, to be paid by the State as a part

2. It may be that one monitor could adequately

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

District Court may act accordingly.

94a

of the costs of this critically important

litigation.

Appellants complain vigorously of the

actions of the District Court in assigning

a major role in the classification of pris-

oners to the Prison Classification Project

of the University of Alabama. In re-

sponse to an inquiry propounded by this

Court through appropriate judicial chan-

nels we are now in possession of an or-

der entered by the District Court on July

19, 1977, in which the Court adjudged

that the University of Alabama group is

no longer functioning insofar as these

cases are concerned. That being true,

we find this aspect of the appeal to be

moot. We make no comment thereon

except to say that we understand the

classification of prisons in the Alabama

prison system will hereafter proceed un-

der the control and direction of the duly

constituted Alabama prison authorities,

with no interference or participation by

any outside group, saving, of course, the

right of the District Court by appropri-

ate measures, if needed, to see to it that

constitutionally required classification

standards, if any, are observed by the

prison authorities in the exercise of a

95a

function which is fundamentally theirs,

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

1332.

[13] Failure of prison authorities to

provide a rehabilitation program, by it-

self, does not constitute cruel and un-

usual punishment, McCray v. Sullivan, 5

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

[14,15] Amicus Curiae, the United

States, concedes that there is no consti-

tutional right to rehabilitation for pris-

oners. It does proceed to argue, how-

ever, that “states have a duty to insure

that the mental, physical, and emotional

status of prisoners in their custody do

not deteriorate”. On the face of it, this

is not a well considered statement. The

mental, physical, and emotional status of

individuals, whether in or out of custody,

do deteriorate and there is no power on

earth to prevent it. We think that what

the government must have meant is that

states may not inflict cruel and unusual

punishment that would likely lead to

such results. The briefs for the parties

plaintiff and for the State of Alabama

deal with this idea to considerable

length. We decline to enter this un-

charted bog. If the State furnishes its

96a

prisoners with reasonably adequate food,

clothing, shelter, sanitation, medical care,

and personal safety, so as to avoid the

imposition of cruel and unusual punish-

ment, that ends its obligations under

Amendment Eight. The Constitution

does not require that prisoners, as indi-

viduals or as a group, be provided with

any and every amenity which some per-

son may think is needed to avoid mental,

physical, and emotional deterioration.

Even so, on the facts of this case, we

affirm the actions of the District Court

designed to provide Alabama prison in-

mates with reasonable recreational facili-

ties. We do this simply because such

facilities may play an important role in

extirpating the effects of the conditions

which undisputably prevailed in these

prisons at the time the District Court

entered its order.

The District Court directed that

inmates should be allowed to receive vis-

itors on at least a weekly basis. Under

our decision in McCray vy. Sullivan, we

feel that visitation regulations should be

left to the prison authorities, wisely

adapted to individual circumstances if

their sound discretion should so dictate,

97a

or included in general rules which will

allow prisoners reasonable visitation.

[17] The Court further directed that

visitors should not be “subjected to any

unreasonable searches’. Of course, no

citizen not a prisoner may be subjected

to unreasonable searches. Even so,

within a prison the prime consideration

is the preservation of the safety and se-

curity of the prison, including the exclu-

sion of contraband. Prison authorities

have both the right and the duty by all

reasonable means to see to it that visi-

tors are not smuggling weapons or other

objects which could be used in an effort

to escape or to harm other prisonets.

They have a duty to intercept narcotics

and other harmful contraband. This is

no more an intrusion on the rights of

visitors than the requirement that per-

sons about to board commercial! aircraft

shall have their persons and baggage

electronically searched for the purpose of

determining that they are not carrying

weapons, United States v. Cyzewski, 5

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

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

That which would be unreasonable in the

outside world may be indispensable with-

in a prison.

98a

Additionally, we conclude that prison

authorities should not be required to

maintain prison security with one eye on

the subject and the other on the conse-

quences of contempt, in which the Dis-

trict Court could convert a warden into

prisoner. If abuses actually exist, there

are other remedies less likely to interfere

with the ongoing safety of the prison.

Upon remand the District Court

should eliminate this item from its de-

cree, reserving the right to take the nec-

essary action with reference to actual

abuses if they persist to an extent justi-

fying injunctive relief.

VII

The injunction included the Governor

of Alabama. Our examination of the

record indicates that he has no hand in

the operations of the Alabama penal sys-

tem beyond the customary budget rec-

ommendations to the legislature and the

appointment of the Alabama Board of

Corrections. The statute vests all power

and control in the Board. Upon remand,

the District Court should dissolve the in-

junction entered against the Governor.

The same action should be taken as to

those members of the Board and other

prison officials who are no longer in of-

99a

fice and thus have no further responsi-

bility for the implementation of the

Court decree. To the extent herein ap-

proved, the injunction will, of course, re-

main in full force and effect as to those

actually running the system until such

time as it may be shown in the District

Court that the prisons are being operat-

ed in a constitutional manner. That the

Court should remove itself from prison

operations at the earliest date consistent

with the vindication of constitutional

rights is no doubt well known to the

District Court.

VIII

The District Court directed that

each prisoner shall be assigned to a

meaningful job on the basis of his or her

abilities and interests, and according to

institutional needs. While there is no

federal constitutional mandate for this

proviso, as phrased it should not impose

any real burden on the penitentiary au-

thorities, so, in the context of this case

we allow it to stand, not, however, to

enjoy any precedential status in future

cases if they should arise.

We interpret those portions of

the Order dealing with opportunities to

obtain a basic education, to attend voca-

tional school, and to attend a transitional

program prior to release as meaning that

100a

if the prison authorities operate such

programs each prisoner shall have impar-

tially equal access on an objective stan-

dard of basic utility to the individual.

We would find it difficult to hold, and

we do not now hold, that if the state has

no such programs it amounts to cruel

and unusual punishment within the pro-

hibitions of the Eighth Amendment. As

a matter of fact, in the operation of a

good prison system, we understand that

such programs are fairly standard prac-

tices, instituted and operated on the ini-

tiative of state prison authorities.

Conclusion

With the modifications herein enumer-

ated, the judgment of the District Court

is affirmed. The case is remanded for

further proceedings consistent herewith

and for such other and further action as

the District Court, pending the termina-

tion of this litigation, may find it neces-

sary to take for the vindication of

Eighth Amendment rights.

AFFIRMED and REMANDED.

APPENDIX H

[318] Jerry Lee PUGH, for himself and all

others similarly situated, Plaintiffs,

Judson C. LOCKE, Jr., individually and

in his official capacity as Commission-

er of the Alabama Board of Correc-

tions, et al., Defendants.

WILCOX COUNTY COMMISSION, as

the governing body of the County of

Wilcox, State of Alabama, and all oth-

er counties similarly situated, and As-

sociation of County Commissions of

Alabama, a voluntary association, In-

tervening Ancillary Plaintiffs,

Vv.

Melba Till ALLEN, individually and as

State Treasurer, State of Alabama, et

al., Ancillary Defendants,

Ira DeMent, United States Attorney,

Amicus Curiae.

Worley JAMES et al., Plaintiffs,

George C. WALLACE, individually and

in his official capacity as Governor

of Alabama, et al., Defendants.

102a

WILCOX COUNTY COMMISSION, as

the governing body of the County of

Wilcox, State of Alabama, and all oth-

er counties similarly situated, and As-

sociation of County Commissions of

Alabama, a voluntary association, In-

tervening Ancillary Plaintiffs,

Vv.

Melba Till ALLEN, individually and as

State Treasurer, State of Alabama, et

al., Ancillary Defendants,

The National Prison Project of the

American Civil Liberties Union Foun-

dation, Inc., and Ira DeMent, United

States Attorney, Amici Curiae.

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

United States District Court,

M. D. Alabama, N. D.

Jan. 13, 1976.

[321]

103a

MEMORANDUM OPINION

JOHNSON, Chief Judge.

In these consolidated class actions,!

plaintiffs seek declaratory and injunctive

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

deprivation of their Eighth and Four-

teenth Amendment rights. This Court

has jurisdiction under 28 U.S.C. §§ 1348,

2201 and 2202. This Court, as authoriz-

ed by Rule 52 of the Federal Rules of

Civil Procedure, incorporates in this

memorandum opinion the appropriate

findings of fact and conclusions of law.

[1] The Court finds that these ac-

tions are maintainable as class actions

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

The class is composed of all persons pres-

ently confined by the Alabama Board of

Corrections or who may be so confined

in the future. The Court finds that the

class is so numerous that joinder is im-

practicable; that the questions of law

l. These class actions were consolidated on

June 27, 1975, and tried together. Following

trial of these cases, the pleadings in Pugh were

amended to conform to the evidence, and the

relief requested is now essentially identical to

that requested in James. Consequently, this

order will be entered in both cases. See Fed.

R.Civ.P. 15(b).

104a

and fact presented by the named plain-

tiffs are common to the class, as are the

claims presented by the class representa-

tives; and that the competent represen-

tation provided the named plaintiffs will

adequately protect the interests of the

class as a whole. The Court further

finds that the defendants in both cases

have acted and refused to act on

grounds applicable to the class, for which

both declaratory and injunctive relief are

appropriate. The defendants, sued in

their individual and official capacities,

are the Governor of Alabama, the Com-

missioner of the Alabama Board of Cor-

rections,? the Deputy Commissioner of

the Alabama Board of Corrections, the

members of the Board of Corrections,

the Warden of Kilby Corrections Facili-

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

2. The original defendant, Commissioner L. B.

Sullivan, left office during the pendency of

these actions. His successor, Judson C.

Locke, Jr., replaces Sullivan as a defendant.

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

3. Kilby Corrections Facility was formerly Mt.

Meigs Medical and Diagnostic Center. The

name of the institution was changed by Act of

the Alabama Legislature during the pendency

of these actions.

105a

Correctional Center. The predecessors in

office of these defendants, who were

sued in their individual and official ca-

pacities, are retained as individual de-

fendants. The Court has also had the

able assistance of United States Attor-

ney Ira DeMent and the American Civil

Liberties Union National Prison Project,

as amici curiae.

The complaint in Pugh v. Locke was

originally filed by an inmate of G. K.

Fountain Correctional Center on Febru-

ary 26, 1974. The amended complaint

was filed by court-appointed counsel on

April 16, 1974, seeking declaratory, in-

[322] junctive and monetary relief for the al-

leged failure of defendants to adequately

protect the plaintiff class from violence

on the part of other inmates. The com-

plaint was filed on behalf of a class com-

posed of all inmates of the state penal

system who have been or may be con-

fined to G. K. Fountain Correctional

Center and who have been, are, or may

be subjected to such violence. At the

request of plaintiffs, the claims for mon-

etary damages were severed by order of

June 27, 1975. The action proceeded on

the claims for declaratory and injunctive

relief.

106a

The original complaint in James vy.

Wallace was filed on June 21, 1974. An

amended complaint was filed thereafter

on July 29, 1974, by court-appointed

counsel. That complaint, on behalf of al]

inmates incarcerated in state penal insti-

tutions, essentially alleges that defend-

ants fail to provide adequate rehabilita-

tion opportunities for inmates, maintain

conditions in these institutions which

make rehabilitation impossible, and pro-

vide the opportunities that do exist in an

unequa! manner—all in violation of

plaintiffs’ Eighth and Fourteenth

Amendment rights.

After extensive pretrial discovery by

parties and amici curiae, the cases were

heard beginning August 20, 1975, in a

trial that lasted seven days. Because

many facts were stipulated, the evidence

at the trial consisted largely of expert

testimony. The cases are now submitted

on evidence offered at trial, depositions,

exhibits, photographs, briefs and over

1,000 stipulated facts. The trial conclud-

ed with the admission by defendants’

lead counsel, in open court, that the evi-

dence conclusively established aggrava-

ted and existing violations of plaintiffs’

Eighth Amendment rights.

107a

The Alabama Board of Corrections

(hereinafter the Board) is charged with

the responsibility for managing the

state’s penal institutions. The Board

currently operates four large institutions

for male inmates—Holman Unit Prison,

G. K. Fountain Correctional Center,

Draper Correctional Center, and Kilby

Corrections Facility. Kilby also contains

the hospital facility for all state prison-

ers and the classification center for male

inmates. The Roard also maintains Julia

Tutwiler Prison for women and the

Frank Lee Youth Center for young

men.* Additionally, there are six road

camps, one pre-release center, and eight

work-release centers. Currently the in-

mate population of these institutions is

in excess of 5,000.

The four principal institutions are hor-

rendously overcrowded. At the time of

the trial of these cases the prison popula-

tion in these four institutions was as fol-

lows:

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

5. To be eligible for assignment to Frank Lee

Youth Center an inmate must be no more than

23 years old, must have a sentence of less than

10 years, must not have been convicted of a

crime involving violence, and must have no

history of drug abuse.

[323]

108a

Maximum Number

for Which Number in

Designed Custody

Fountain 632 Over 1100

Holman 540 Over 750 .

Draper 632 Over 1000

Kilby 503 Over 700

The overcrowded condition of these in-

stitutions is the subject of another class

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

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

of evidence in the instant cases, a joint

interim order was entered by this Court

and the McCray court, enjoining the de-

fendants from accepting any new prison-

ers, except escapees and parole violators,

into these four institutions until the pop-

ulation in each is reduced to design ca-

pacity.6 The purpose of that emergency

order was to prevent aggravation of the

conditions created by the grave Eighth

Amendment violations.

The effects of severe overcrowding are

heightened by the dormitory living ar-

rangements which prevail in these insti-

tutions. Bunks often are packed togeth-

er so closely that there is no walking

space between them. Sanitation and se-

6. Order of August 29, 1975.

109a

curity are impossible to maintain. There

was testimony that the quarantine popu-

lation at Kilby’ is so crowded that in-

mates have to sleep on mattresses spread

on floors in hallways and next to urinals.

As will be noted, overcrowding is pri-

marily responsible for and exacerbates

all the other ills of Alabama’s penal sys-

tem.

The dilapidation of the physical facili-

ties contributes to extremely unsanitary

living conditions. Testimony demon-

strated that windows are broken and un-

screened, creating a serious problem with

mosquitoes and flies. Old and filthy cot-

ton mattresses lead to the spread of con-

tagious diseases and body lice. Nearly

all inmates’ living quarters are inade-

quately heated and ventilated. The elec-

trical systems are totally inadequate, ex-

posed wiring poses a constant danger to

the inmates, and insufficient lighting re-

sults in eye strain and fatigue.

In general, Alabama’s penal institu-

tions are filthy. There was repeated tes-

7. Kilby is the receiving center for inmates be-

ing processed in and out of state prisons.

New inmates are kept in quarantine for ap-

proximately six weeks. Kilby also maintains a

permanent population of approximately 150.

;

timony at trial that they are overrun

with roaches, flies, mosquitoes, and other

vermin. A public health expert testified

that he found roaches in all stages of

development—a certain indicator of

filthy conditions. This gross infestation

is due in part to inadequate maintenance

and housekeeping procedures, and in

part to the physical structure of the

buildings themselves. For example,

floors in many shower rooms are so po-

rous that it is impossible to keep them

clean. Plumbing facilities are in an ex-

ceptional state of disrepair. In one area

at Draper, housing well over 200 men,

there is one. functioning toilet. Many

toilets will not flush and are overflow-

ing. Some showers cannot be turned off

and continually drip or even pour water.

Frequently there is no hot running

water for substantial periods of time.

Witnesses repeatedly commented on the

overpowering odor emanating from these

facilities.

Personal hygiene is an insurmountable

problem in these circumstances. The

parties stipulated that the state supplies

prisoners only with razor blades and

soap. It was further stipulated that the

state furnished no toothpaste, tooth-

llla

brushes, shampoo, shaving cream, razors

or combs; but that such items are avail-

able for those inmates who can afford

them. Further, household cleaning sup-

plies rarely are available for inmates to

maintain their living areas.

Food service conditions are equally un-

Sanitary. Food is improperly stored in

dirty storage units, and is often infested

with insects. Mechanical dishwashers

are not adequately maintained and

therefore do not even approach the mini-

mum temperature required for proper

Sanitation. Moreover, food service per-

sonnel, many of whom are inmates, are

often untrained and do not follow proper

Sanitation procedures in the handling

and preparation of food. Inmates are

not supplied with reasonable eating and

drinking utensils; some inmates drink

from used tin cans, and have to wash

and save their own utensils from meal to

meal. Garbage sits in large open drums

throughout the dining halls. Asa gener-

al rule, the food is unappetizing and un-

wholesome. Inmates with some source

of funds may supplement their diets

from the prison canteen, but the large

majority must subsist only on what is

supplied by the kitchen. One menu is

[324]

liZza

prepared for all inmates who require a

special diet, regardless of whether it

meets their particular needs.

One expert witness, a United States

public health officer, toured facilities at

Draper, Fountain, Holman, and Kilby.

He testified at trial that he found these

facilities wholly unfit for human habita-

tion according to virtually every criteri-

on used for evaluation by public health

inspectors. With very few exceptions,

his testimony was that, if such facilities

were under his jurisdiction, he would

recommend that they be closed and con-

demned as an imminent danger to the

health of the _ individuals exposed to

them. This Court credits this testimony

and makes it a part of these findings.

There is no working classification sys-

tem in the Alabama penal system, and

the degree to which this impedes the

attainment of any proper objectives of a

penal system cannot be overstated. Al-

though classification personnel through-

out the state prisons have been attempt-

ing to implement a wholly new classifi-

cation process established in January,

1975, understaffing and overcrowding

have produced a total breakdown of that

process. For no valid reason apparent

iiSa

from the evidence, far too many inmates

receive maximum security classifications

under the present classification system.

Moreover, during what is called the clas-

sification process, new inmates, who are

already trying to adjust to the new envi-

ronment of the prison, are restricted to

the overcrowded living quarters and are

permitted neither visitors nor recreation.

Testing and evaluation of these individu-

als, essential to a working classification

system, cannot be regarded as reliable or

even useful when conducted under such

traumatic and stressful conditions.

Prison officials do not dispute the evi-

dence that most inmates are assigned to

the various institutions, to particular

dormitories, and to work assignments al-

most entirely on the basis of available

space. Consequently, the appreciabie

percentage of inmates suffering from

some mental disorder is unidentified, and

the mentally disturbed are dispersed

throughout the prison population with-

out receiving treatment. This Court

previously found in an Alabama prison

system case that approximately 10 per-

cent of the inmate population are psy-

chotic, and that another 60 percent are

lil¢a

disturbed enough to require treatment.’

The evidence in the instant cases clearly

reflects that nothing has been done to

alleviate this situation. Some of these

inmates should, according to the undis-

puted evidence presented in these cases,

be transferred to a facility for the crimi-

nally insane, and many others should be

treated within the penal system. The

evidence further reflects that there are

also a number of mentally retarded in-

mates who need to be, according to any

humanitarian concept, identified and

placed in an appropriate environment.

A 1972 study prepared by the University

of Alabama Center for Correctional Psy-

chology, under contract with the Board

of Corrections, highlighted the woefully

inadequate mental health program in Al-

abama prisons and suggested minimum

standards. None of these recommended

standards have been implemented. The

findings and conclusions of that study

are fully supported by the evidence in

these cases.

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

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

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

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

[325]

1l5a

Further effects of failure to classify

are manifold. Violent inmates are not

isolated from those who are young, pas-

sive, or weak. Consequently, the latter

inmates are repeatedly victimized by

those who are stronger and more aggres-

sive. Testimony shows that robbery,

rape, extortion, theft and assault are ev-

eryday occurrences among the general

inmate population. Rather than face

this constant danger, some inmates vol-

untarily subject themselves to the inhu-

man conditions of prison isolation cells.

Emotional and physical disabilities

which require special attention pass un-

noticed. There is no rational basis on

which to assign inmates to the few voca-

tional, educational and work opportuni-

ties which do exist. All of this contrib-

utes to the apathy, tension and frustra-

tion which pervade Alabama prisons.

The inmate population also contains a

number of aged and infirm who are of-

ten housed in dormitories in which condi-

tions are particularly hazardous. There

are no special programs to meet the

needs of these people and they are fre-

quently unprotected from the general

population. For example, in Draper

such prisoners—some of them confined

ll6a

to wheelchairs, others scarcely able to

move without help—are left without su-

pervision in second-floor quarters that

are accessible only by stairway, with no

means of evacuation in the event of fire

or other physical emergency, and utterly

helpless in the event of the sort of medi-

cal emergency to which the elderly are

susceptible. In this idleness, filth and

despair, the condition of these inmates

can be expected only to deteriorate fur-

ther.

Each of these failings in Alabama’s

penal system is compounded by that sys-

tem’s most pervasive and most obvious

problem: the overcrowding with which

all prisoners must live. Yet even if the

inmate population were reduced to de-

sign capacity, the system would still be

woefully understaffed. Former Commis-

sioner Sullivan testified that the four

large institutions alone need, at a mini-

mum, 692 guards, but that they current-

ly employ only 383. Guards rarely enter

the cell blocks and dormitories, especially

at night when their presence is most

needed. The extremely high inmate-to-

staff ratio makes personal interaction

between the two virtually impossible be-

ll7a

cause staff members must spend all their

time attempting to maintain control or

to protect themselves.

Another result of understaffing is that

some inmates have been allowed to as-

sume positions of authority and control

over other inmates, creating opportuni-

ties for blackmail, bribery, and extortion.

Some prisoners are used as “strikers” to

guard other inmates on farm duty and

as “cell flunkies” to maintain order and

perform tasks for prison staff. They are

afforded special privileges, including

freedom to ignore prison regulations and

to abuse other inmates. Inmate clerks

have access to the institutional files and

mail of other inmates; inmate medica]

aides are used to dispense some medi-

cation, which they may withhold at will.

The problems posed by understaffing

are aggravated by the fact that most of

the large institutions are located in rural

areas of the state. The guards, drawn

largely from the local population, are

practically all white and rural in contrast

to the predominantly black and urban

inmate population they supervise. A

number of witnesses testified that staff

members address black inmates with ra-

cial slurs, further straining already tense

relations.

116.

iida

In view of the foregoing, the rampant

violence and jungle atmosphere existing

throughout Alabama’s penal institutions

are .no surprise. The evidence reflects

that most prisoners carry some form of

homemade or contraband weapon, which

they consider to be necessary for self-

protection. Shakedowns to remove

weapons are neither sufficiently thor-

ough nor frequent enough to significant-

ly reduce the number of weapons.

There are too few guards to prevent out-

breaks of violence, or even to stop those

which occur.

While it is clear that violence is wide-

spread, there are no accurate statistics

on the incidence of violence. A cardinal]

precept of the convict culture is that no

inmate should report another inmate to

officials. This reluctance to report vio-

lence is compounded by the failure of

prison officials to keep accurate records

of violence which does come to their at-

tention.

One 20-year-old inmate, after relating

that he has been told by medical experts

that he has the mind of a five year old,

testified that he was raped by a group of

inmates on the first night he spent in an

Alabama prison. On the second night he

[326]

119a

was almost strangled by two other in-

mates who decided instead that they

could use him to make a profit, selling

his body to other inmates.

An inmate required to live in these

circumstances stands no chance of leav-

ing the institution with a more positive

and constructive attitude than the one

he or she brought in. The evidence re-

flects that even if rehabilitation pro-

grams, adequate in number and quality,

were available, whatever benefit might

be derived from them could be undone

quickly by this inhumane environment.

Consequently, this Court finds that these

conditions create an environment in

which it is impossible for inmates to re-

habilitate themselves—or to preserve

skills and constructive attitudes already

possessed—even for those who are in-

clined to do so. Further, this Court

finds that these conditions create an en-

vironment that not only makes it impos-

sible for inmates to rehabilitate them-

selves but also makes dehabilitation in-

evitable.

Inmates are denied any meaningful

opportunity to participate in vocational,

educational or work activities. As a re-

sult, most inmates must spend substan-

120a

tially all of their time crowded in dormi-

tories in absolute idleness. Such unbro-

ken inactivity increases boredom, tension

and frustration, which in turn promote

incidents of violence. The evidence re-

flects that idleness of this magnitude de-

stroys any job skills and work habits in-

mates may have, and contributes to their

mental and physical degeneration.

An examination of the very few reha-

bilitative programs which do exist re-

veals that they are totally inadequate to

provide reasonable opportunities for re-

habilitation—or even to prevent physical

and mental deterioration—of most of the

inmate population. It was stipulated

that the average reading level of prison-

ers entering the penal system in the first

quarter of the year 1975 was below the

sixth grade level. Yet basic education

classes are available to only a small

number of inmates. For example, Hol-

man Prison, with more than 750 inmates,

offers Adult Basic Education for only 40

inmates at any one time. At Kilby, an

inmate conducts that institution’s only

basic education class.

While the Board of Corrections has

made some recent efforts to increase vo-

cational training and work opportunities,

1Zla

those programg” are available to only a

limited number of selected inmates. Eli-

gibility requirements for most programs

are quite restrictive.’

In light of the stipulation that 59 per-

cent of Alabama’s state prisoners are un-

skilled—and that another 5.5 percent

claim no occupation—it is clear that ac-

cess to existing programs for these pris-

oners who need vocational training is

minimal. For those few inmates who

qualify, the range of occupations and

trades offered is extremely limited.

The Board offers an acceptable reha-

bilitation opportunity to a limited num-

ber of inmates through one pre-release

center and eight work-release centers.

In addition to providing job skills, the

programs allow prisoners to gradually

re-enter the community and to save

some money, up to 75 percent of their

salaries, prior to release. Again, there

are stringent eligibility requirements for

the few openings in these programs.

9. For example, for entry into many programs

an inmate must have no disciplinary violations

for six months prior to enrollment, must have

no holdovers, must have a regular duty assign-

ment, must not be considered a security risk,

and must be within 18 months of his or her

release date upon completion of the course.

122a

The single exception to the dearth of

rehabilitation programs is the Frank Lee

Youth Center. However, that institution

houses approximately 200 selected in-

mates who meet strict objective and sub-

jective criteria.'"* Most inmates at Frank

Lee can expect to participate in a num-

ber of educational, vocational and recrea-

tional activities. To date the inmate

population at Frank Lee has been over

90 percent white in contrast to the pre-

dominantly black populations at other

state penal institutions.

Institutional work assignments offer

little to motivate inmates. There are too

few jobs and most take only a few hours

to perform. Frequently many more in-

mates are assigned to a particular job

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

oners work for no pay and at jobs which

do not teach usable skills. Inmates at

Fountain and Holman, most of whom in-

tend to return to metropolitan areas

upon release, are routinely assigned to

farm labor. Fountain operates a license

10. See note 5 supra. The Director of the

Frank Lee Youth Center, William Gilmore, tes-

tified that he relied on his own subjective eval-

uation, as well as the criteria outlined in note

5, in selecting inmates.

128a

tag plant, and Draper has a mattress

factory. Neither of these programs is

available to any significant number of

inmates. Other inmates who have an

assigned task perform housekeeping

functions for the institution. As _ ob-

served, the lack of meaningful work op-

portunities contributes to idleness, bore-

dom, apathy and frustration.

The flow of money through Alabama

prisons is for all practical purposes un-

controlled. Each prisoner receives 25

cents per week from the state, as well as

postage and paper for one letter each

week. There are almost no legitimate

means for an inmate to earn money.

Some prisoners receive substantial sums

from outside sources and through contra-

band activities. Money is required to

buy personal hygiene items, food to sup-

plement the prison diet, and postage.

Money can also buy drugs, alcohol,

changes in institutional records, special

privileges, sex, and housekeeping favors.

Interest collected on loans made by in-

mates with money is exorbitant, and

may be collected in a ruthless manner.

Gambling, smuggling, and extortion are

several of the abuses fueled by the fail-

ure of prison officials to control the pos-

Lata

session of currency inside the institution.

Finally, many prisoners must make the

difficult transition from prison life on

the pittance the state provides them

upon release.!!

There is no organized recreation pro-

gram for Alabama’s prisons. While

some athletic facilities and equipment

are available, they are not properly

maintained. Almost no provision is

made for inmates to participate in hob-

bies. Consequently, inmates have little

to occupy the inordinate amount of free

time they must fill.

The chances of successful rehabilita-

tion or the chances of escaping mental

and physical degeneration are also di-

minished by the fact that prison environ-

ment is much different from that in the

society to which an inmate must return.

11. The state is required by statute to provide

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

clothes and with the least expensive mode of

public transportation back to the point of sen-

tencing . . ..” Ala.Code tit. 45 § 54

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

lars in cash to all inmates serving five years or

less, and an additional two dollars per year for

each additional year served. Ala.Code tit. 45

§ 55 (1958).

125a

Current visitation policies discourage vis-

its—which are essential to the mainte-

nance of community ties—and therefore

decrease an inmate’s chances of success-

ful reintegration upon release. Some in-

stitutions allow visitors only on alternate

Sundays, while inmates in quarantine at

Kilby are permitted no visitors. Visiting

areas are overcrowded and uncomforta-

ble, allow no privacy, and prohibit physi-

cal contact in some instances. Public

transportation to institutions located in

remote areas of the state is infrequent

and too expensive for many people to

use regularly.

An oral order enjuining the use of iso-

lation and segregation cells which do not

meet minimum standards was issued by

the Court at the conclusion of the trial

in these cases. The indescribable condi-

tions in the isolation cells required imme-

diate action to protect inmates from any

further torture by confinement in those

cells. As many as six inmates were

packed in four foot by eight foot cells

with no beds, no lights, no running

water, and a hole in the floor for a toilet

which could only be flushed from the

outside. The infamous Draper “dog-

house” is a separate building, locked

126a

from the outside, with no guard sta-

tioned inside. Inmates in punitive isola-

tion received only one meal per day, fre-

quently without utensils. They were

permitted no exercise or reading materi-

al and could shower only every 11 days.

Punitive isolation has been used to pun-

ish inmates for offenses ranging from

[328] swearing at guards and failing to report

to work on time, to murder.

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

this Court has a clear duty to require the

defendants in these cases to remedy the

massive constitutional infirmities which

plague Alabama’s prisons. It is with

great reluctance that federal courts in-

tervene in the day-to-day operation of

state penal systems, Procunier v. Mar-

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

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

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

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

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

son, 364 F .Supp.-689, 662 (M.D.Ala.1973),

a functiopfthey are increasingly required

to perform.” While this Court continues

12. Federal courts in a number of states includ-

ing Massachusetts, Inmates of Suffolk County

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

[footnote continued]

127a

to recognize the broad discretion re-

quired for prison officials to maintain

orderly and secure institutions, Procunier

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

1800; Diamond v. Thompson, 364

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

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

1972), aff'd in part 508 F.2d 1320 (5th

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

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

tutional deprivations of the magnitude

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

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

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

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

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

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

901 F.2d 1291 (5th Cir. 1974), recently have

had occasion to hold conditions in penal insti-

tutions in those states unconstitutional. In Al-

abama, this Court in previous cases has ad-

dressed the issues of inadequate medical care,

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

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

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

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

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

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

courts in other districts of this state have

found unconstitutional conditions in both

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

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

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

facilities.

128a

presented here simply cannot be counte-

nanced, and this Court is under a duty

to, and will, intervene to protect incar-

cerated citizens from such wholesale in-

fringements of their constitutional

rights. See Procunier v. Martinez, 416

U.S. at 405-06, 94 S.Ct. 1800: Johnson v.

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

L.Ed.2d 718 (1969).

[4-7] Federal litigation by prisoners

alleging systemic constitutional deficien-

cies has mushroomed in recent years.

There has been growing recognition by

the courts that prisoners retain all rights

enjoyed by free citizens except those

necessarily lost as an incident of confine-

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

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

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

032 (5th Cir. 1968); Washington v. Lee,

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

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

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

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

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

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

Supreme Court recently identified three

legitimate functions of a correctional

system: deterrence, both specific and

129a

general; rehabilitation; and institutional

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

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

of these legitimate penal objectives that

a court must assess challenges to prison

regulations based on asserted constitu-

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

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

policy advances one of these valid goals,

the Court is required to weigh the com-

peting interests of the prisoner and of

the state in pursuing that goal. When

an inmate is restricted in a manner

which supports no such valid purpose,

that restriction cannot stand.

[8-10] Prisoners are entitled to be

free of conditions which constitute cruel

and unusual punishment in violation of

the Eighth and Fourteenth Amend-

ments, The content of the Eighth

Amendment is not static but “must draw

its meaning from the evolving standards

of decency that mark the progress of a

maturing society.” Trop v. Dulles, 356

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

[329] 630 (1958). There can be no question

that the present conditions of confine-

ment in the Alabama penal system vio-

late any current judicial definition of

crue! and unusual punishment, a situa-

130a

tion evidenced by the defendants’ admis-

sion that serious Eighth Amendment vio-

lations exist.’ In these circumstances, it

is the very confinement itself which im-

permissibly contravenes the Eighth and

Fourteenth Amendment rights of the

plaintiff classes.

(C]onfinement itself within a given in-

stitution may amount to a cruel and

unusual punishment prohibited by the

Constitution where the confinement is

characterized by conditions and prac-

tices so bad as to be shocking to the

conscience of reasonably civilized peo-

ple even though a particular inmate

may never personally be subject to

any disciplinary action.

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

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

Cir. 1971).

The conditions in which Alabama pris-

oners must live, as established by the

evidence in these cases, bear no reasona-

ble relationship to legitimate institution-

13. Defendants through their lead counsel, the

Honorable Robert S. Lamar, Jr., admitted in

open court, at the close of trial. that plaintiffs

had proved serious Eighth Amendment viola-

tions.

l3la

al goals. As a whole they create an

atmosphere in which inmates are com-

pelled to live in constant fear of vio-

lence, in imminent danger to their physi-

cal well-being, and without opportunity

to seek a more promising future.

(11) The living conditions in Alabama

prisons constitute cruel and unusual pun-

ishment. Specifically, lack of sanitation

throughout the institutions—in living

areas, infirmaries, and food service—

presents an imminent danger to the

health of each and every inmate. Pris-

oners suffer from further physical dete-

rioration because there are no opportuni-

ties for exercise and recreation. Treat-

ment for prisoners with physical or emo-

tional problems is totally inadequate.

This Court has previously ordered that

the penal system provide reasonable

medical care for inmates in these institu-

tions on a finding that

[flailure of the Board of Corrections to

provide sufficient medical facilities

and staff to afford inmates basic ele-

ments of adequate medical care consti-

tutes a willful and intentional viola-

tion of the nghts of prisoners guaran:

teed under the Eighth and Fourteenth

Amendments.

132a

Newman iy. Alabama, 349 F.Supp. at

285-86. The evidence in these cases

leads to the inescapable conclusion that

the gross inadequacies in medical care

found in that case have not been reme-

died.

[12] Prison officials are under a duty

to provide inmates reasonable protection

from constant threat of violence.

While occasional, isolated attacks by

one prisoner on another may not con-

stitute cruel and unusual punishment,

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

Va.1972), confinement in a prison

where violence and terror reign is ac-

tionable. A prisoner has a right, se-

cured by the eighth and fourteenth

amendments, to be reasonably protect-

ed from constant threat of violence

and sexual assault by his fellow in-

mates, and he need not wait until he is

actually assaulted to obtain relief.

Woodhous v. Commonwealth of Virginia,

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

Finney v. Arkansas Board of Cor-

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

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

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

309 F.Supp. 362, 376-78 38] (E.D.Ark.

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

133a

[13] The defendants in these cases

have failed to carry out that duty. The

evidence establishes that inmates are

housed in virtually unguarded, over-

crowded dormitories, with no realistic at-

tempt by officials to separate violent,

aggressive inmates from those who are

passive or weak. The tension generated

[330] by idleness and deplorable living condi-

tions contributes further to the ever-

present threat of violence from which

inmates have no refuge.

[14] The evidence in these cases also

establishes that prison conditions are so

debilitating that they necessarily deprive

inmates of any opportunity to rehabili-

tate themselves, or even to maintain

skills already possessed. While courts

have thus far declined to elevate a posi-

tive rehabilitation program to the level

of a constitutional right, it is clear that a

penal system cannot be operated in such

a manner that it impedes an inmate’s

ability to attempt rehabilitation, or sim-

ply to avoid physical, mental or social

deterioration.

The absence of an affirmative pro-

gram of training and rehabilitation

may have constitutional significance

where in the absence of such a pro-

134a

gram conditions and practices exist

which actually militate against reform

and rehabilitation.

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

[15] Not only is it cruel and unusual

punishment to confine a person in an

institution under circumstances which in-

crease the likelihood of future confine-

ment, but these same conditions defeat

the goal of rehabilitation which prison

officials have set for their institutions.

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

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

[16-18] Prisoners are protected by

the Due Process and Equal Protection

clauses of the Fourteenth Amendment,

Washington v. Lee, supra; therefore,

they must be free from arbitrary and

capricious treatment by prison officials.

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

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

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

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

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

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

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

There is evidence in these cases that the

Alabama penal system makes available a

very limited number of voeational, edu-

cational, and work opportunities. Open-

135a

ings in whatever programs are offered

must be assigned on a reasonable and

rational basis. See Thompson v. Gail-

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

Currently, inmates are able to buy and

sell desirable jobs. Moreover, while the

prison system is entitled to make ration-

al distinctions in making assignments, it

is impossible to do so without a function-

‘Ing classification system.

[19,20] The inmates’ ability to en-

gage in rehabilitation is further frustrat-

ed by unreasonable restrictions on visita-

tion from family and friends. Any re-

strictions imposed by the prisons’ visita-

tion policies must be reasonably related

to a legitimate governmental interest.

See Thompson v. Gallagher, supra. The

visitation policies currently employed by

Alabama penal institutions do not serve

the valid penal objectives defined by the

Supreme Court in Pell y. Procunier, 41

U.S. at 822-28, 94 S.Ct. 2800.

[21] The response of the defendants

to the matters set forth in this opinion

consistently has been that they cannot

alleviate the conditions because of inade-

quate funding by the state legislature.

However, a state is not at liberty to

136a

afford its citizens only those constitu-

tional rights which fit comfortably with-

in its budget. The Alabama Legislature

has had ample opportunity to make pro-

vision for the state to meet its constitu-

tional responsibilities in this area, and it

has failed to do so. It is established

beyond doubt that inadequate funding is

no answer to the existence of unconstitu-

tional conditions in state penal institu-

tions.

Let there be no mistake in the matter;

the obligation of the Respondents to

eliminate existing unconstitutionalities

does not depend upon what the Legi

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