Petition — Faulkner v. Wellman

IN THE

Supreme Court of the United States

October Term, 1983

GORDON H. FAULKNER, et al.,

Petitioners,

VS.

BRUCE D. WELLMAN, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 232-6332

Attorneys for Petitioner

Central Publishing Company, Inc., Indianapolis, 1N 46206

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the

Seventh Circuit has Decided this Case in a Way in Conflict

with Controlling Decisions of this Court by its Failure to

Rely upon and apply Objective Criteria to an Analysis of

Eighth Amendment Claims concerning the Indiana State

Prison.

TABLE OF CONTENTS

Page:

Questions Presented for Review ...............05. be i

PE CD ibn os Setesc ss desecces cegeddaas ili

SU 6 ee, Re i oe 2

PE lanes rents eh oviis ewes cuutseuseecenes 2

Constitutional and Statutory Provisions Involved... 3

A NE CS os ais sv kcvbanndesdwens eens 3

i tr I vec cadeesansasnsves 3

B. Course of Proceedings Below................ 3

C. Facts Material to the Consideration of the

I SID oo sv sudccdonsvevedans 5

Reasons for A!lowance of the Writ ................. 11

ER ccc ceeCuys ud picabsedcuevasueeneceneyae 15

TABLE OF AUTHORITIES

Cases: Pages:

Estelle v. Gamble, 429 U.S. 97 (1976) ............. 11, 15

Hendrix v. Faulkner, 52& F.Supp. 435 (N.D. Ind.

RIES i. vncans cece canauese et eeeeceis suns bens 2,5

McCray v. Sullivan, 509 F.2d 1332 (5th Cir.), cert.

denied, 423 U.S. 869 (1975) ......cccccvescccees 14

Madyun v. Thompson, 657 F.2d 868 (7th Cir. 1981). 14

Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) ...... 14

Rhodes v. Chapman, 452 U.S. 337 (1981)...... 11, 12, 14

Rummel v. Estelle, 445 U.S. 263 (1980) ............. 12

Solem v. Helm, U.S., 103 S.Ct. 3001 (1983) ......... 12

Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983). 2

Constitutional Provisions:

Eighth Amendment to the Constitution of the United

EN aan ses CaaS care bead ood aeeene ee 3, 11, 12

Statutes:

28 U.S.C. $1254........ Fe Skee adeae cae ana ee eee 2

SRM IIE css sé Savas won ears OOURCAA GY AR OES SOS 3

ae: EE ina vn nes ccdeoassecckevanaeentaa 3, 4

Rules:

Rule 17, Supreme Court of the United States....... 2

Rule 20.2, Supreme Court of the United States ..... 3

No.

IN THE

Supreme Court of the United States

October Term, 1983

GORDON H. FAULKNER, et al.,

Petitioners,

VS.

BRUCE D. WELLMAN, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Petitioners Gordon H. Faulkner, Commissioner of

Indiana Department of Correction, Jack R. Duckworth,

Superintendent (formerly Warden) of the Indiana State

Prison, Edward Jones, Director of Classification and

Treatment at the Indiana State Prison, Norman Hunt,

Director of Classification and Treatment for the Indiana

Department of Correction, Cloid L. Shuler, Executive

Director for the Adult Authority for the Department, Dean

Nietzke, Director of Health Care Services for the

Department, Ronald Freake, Health Care Services

Administrator at the Prison, Roger D. Saylors M.D., Major

1

Gothel D. Wilkins, Captain Eugene Koziatek, Sgt. Bryon

Glick, Lt. Robert McKee, Officer John M. Sharp, Lt. John

Riggs, Officer Bill J. Kennedy, Lt. David G. Oden, J.F.

Kozlowski, P.G. Youngblood, Bob Glancey, R. Shriner,

Rodney Keith, and Ronald Batchelor respectfully pray this

Court issue a Writ of Certiorari to review the judgment of

the United States Court of Appeals for the Seventh Circuit

(hereafter Seventh Circuit) entered in cause numbers 81-

3060 and 81-3061 on August 9, 1983, which affirmed in

part, vacated in part, and remanded to the United States

District Court for the Northern District of Indiana, South

Bend Division (hereafter District Court).

Respondents are James Odis Hendrix, Grady Thomas

Bobbitt, Melon Carroll, Donald R. Sceifers, James

Blackburn, Billie R. Adams, Bruce D. Wellman, Dwight

Walker, Douglas Shackelford a/k/a Achebe H. Lateef,

Raymond Hurt, Richard Colvin, and Stewart Brooks, all

offenders confined at the Prison at the time their respective

cases were filed in the District Court. The District Court

certified the causes as a class action, the class consisting of

“those prisoners who are, or may be in the future, confined

at the Indiana State Prison, Michigan City, Indiana in the

custody of the Indiana Department of Corrections.”

OPINIONS BELOW

The decision of the Seventh Circuit issued on August 9,

1983, is reported at 715 F.2d 269 (7th Cir. 1983). The

Memorandum and Opinion of the District Court, entered

on October 21, 1981, is reported at 525 F.Supp. 435 (N.D.

Ind. 1981), under the name of Hendrix v. Faulkner.

Because the opinion of the District Court is voluminous, it is

separately presented.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254 and Rule 17 of the Rules of this Court.

The decision of the Seventh Circuit was entered on

August 9, 1983. This petition is timely filed in that it is filed

prior to the expiration of the ninety (90) day period allowed

by 28 U.S.C. §2101 (c) and Rule 20.2.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Eight Amendment to the Constitution of the United

States provides as follows:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

42 U.S.C. §1983 provides as follows:

Every person who, under color of any statute,

ordinance, regulation, suctom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

STATEMENT OF THE CASE

A. Nature of the Case

This petition arises from an affirmance in part, vacating

in part, and remand for further proceedings by the Seventh

Circuit. This cause concerns a civil rights action filed by

offenders confined at the Indiana State Prison and who

challenged conditions, policies, and practices at that

institution.

B. Course of Proceedings

The original complaint in the Wellman action (No. S79-

3

32 in the District Court) was filed on January 18, 1979,

naming as defendants the warden and other prison officials

and employees, and certain officials of the Indiana

Department of Correction. An amended complaint was

filed on December 4, 1980. The prisoners sought damages

for themselves and declaratory and injunctive relief on

their own behalf and on behalf of the class.

Respondent Adams filed a pro se complaint under 42

U.S.C. §1983 on March 7, 1977 (No. S77-35 in the District

Court). Supplemental complaints filed on April 7, 1977,

and July 28, 1977, brought to nine (9) the total of prison

employees named as defendants. Adams alleged

constitutional violations similar in nature to those alleged

by the Wellman plaintiffs. On December 5, 1977, the

District Court dismissed Adams’ claims, and he appealed.

The order of the District Court dismissing Adams’

complaint was vacated by the Seventh Circuit in an

unpublished order dated June 3, 1979, and the cause was

remanded to permit Adams an opportunity to prove his

allegations. On remand, due to the similarity of Adams’

allegations to those of the Wellman plaintiffs, on December

27, 1979, the District Court ordered the two cases

consolidated for trial.

The complaint in No. 81-3061 was filed on November 4,

1976. On December 9, 1977, the District Court dismissed

certain of the plaintiffs’ allegations. At this time, there

were twelve plaintiffs, each an offender incarcerated at the

Indiana State Prison, Michigan City, Indiana. In

summary, the plaintiffs challenged the conditions of their

confinement as being in violation of the Constitution. On

September 25, 1979, the District Court appointed counsel

to represent the plaintiffs. Each side waived trial by jury.

On July 30, 1980, at the request of plaintiffs, No. 81-3061

was consolidated with the other two cases before the

District Court. Trial was held in the three consolidated

cases in January and February, 1981, covering eleven court

days. On October 21, 1981, the District Court entered

4

judgment, awarding a total of $2,000.00 in damages to

three of the named plaintiffs in No. 81-3061—James Odis

Hendrix, Grady Thomas Bobbitt, and Melon Carroll. In

addition, the District Court ordered a staged reduction in

population at the Prison and further that the offenders

confined on the Admissions and Orientation Unit (“A & O”)

be released from their cells not less than three hours per

day, with one of these three hours to be out of doors at the

option of the offender.

Petitioners moved to amend the judgment, which motion

was denied on November 25, 1981, with the exception of

correcting a clerical error. The opinion of the District

Court is reported at 525 F.Supp. 435 (N.D. Ind. 1981), and

is contained in the appendix to this Brief. The District

Court’s Order of November 25, 1981, denying Petitioners’

motion to amend is found in the Appendix at page A-3.

The Wellman and Adams plaintiffs and the defendants in

each of the three consolidated case filed cross-appeals,

which appeals were consolidated by the Seventh Circuit for

briefing, argument, and decision.

The Seventh Circuit affirmed the District Court as to the

staged reduction in population, the time-out-cell order

relating to one unit of the Prison, and the denial of damages

to prisoners who failed to prove personal responsibility of a

named defendant. The awards of damages to respondents

Hendrix, Bobbitt, and Carroll were vacated and remanded

for a determination of whether the requisite personal

liability of defendants was established at trial. The Seventh

Circuit reversed the District Court’s conclusion that there

was not deliberate indifference to serious medical needs,

and remanded for a determination of “further appropriate

relief.”

C. Facts Material to the

Consideration of the Question Presented

There is no evidence showing or tending to show that

increases in population or the current levels of population

5

cause actual, physical pain. The District Court’s sole

conclusion with respect to crowding is that it leads to

limited time out of cell. There is no credible evidence and no

finding of fact that the current level of population has

resulted in an unacceptable level of safety leading to

attacks on offenders. There is no evidence that the level of

population has resulted in persons sleeping on dirty floors

crawling with vermin. No evidence was produced to show

an escalation of violence with an escalation in population, or

any relationship between violence and population density.

There is no concrete evidence that population density has

led to widespread outbreaks of contagious diseases. The

Respondents failed to prove, and the District Court did not

find, sufficient facts upon which to base any conclusion that

the Prison is unconstitutionally overcrowded.

The only “facts” from which the District Court could have

concluded that the Prison is unconstitutionally overcrowded

are merely subjective opinions. The only opinion cited by

the District Court is that of Cloid L. Shuler, Executive

Director of the Adult Authority for the Indiana

Department of Correction. Mr. Shuler gave an administra-

tive capacity of 1750, which is the figure that the District

Court mandated be achieved by December 31, 1982.

However, that capacity is one beyond which facilities and

resources are strained, and not one beyond which violence

becomes rampant. (R.p.2030). Rated capacity is an ideal

toward which prisons strive, and do not constitute a

minimum constitutional requirement. In addition,

“expert” witnesses believed the Prison to be overcrowded,

but these opinions, like standards adopted by organizations,

are merely recommendations and simply do not establish

the constitutional minima; rather, they establish goals

recommended by the private organization.

Much of the medical evidence is in the nature of a

disagreement among doctors. Dr. Shansky and Dr.

Hastings disagreed on nearly everything. The examples

used by Dr. Shansky do not involve any life-threatening

6

situations. While errors are made, the cases he chose are

difficult cases. A diabetic who missed a few injections and

had a few injections reversed, constituting a very small

percentage and having no adverse impact, (R.pp.791, 2084)

a diabetic who received an unnecessary but harmless test,

(R.pp.744, 2094) and a heart patient who wanted physical

therapy but was found not to be likely to benefit do not show

deliberate indifference (R.pp.752, 2119). Dr. Shansky’s

complaints were either wrong, as in the case of the person

he thought was receiving a potentially lethal dose of

medication (R.pp.748, 2106-07) or of such a trivial nature

that they show nothing about the system, as in the case of

the medical technician who opined that a person was not ill

and who referred the patient to a physician in any event

(R.p.743). The two doctors disagreed numerous times on

questions of medical judgment, as in the case of the reason

for the death of James Marshall (R.pp.753-54, 2123, 2188,

2190-91).

The system is not such that suffering is inevitable. The

medical care received is adequate and is available. As seen

in the charts in evidence, there is very little barrier to

getting care (R.pp.2147, 2177). A civilian hospital is

available and is frequently used—maybe overused

(R.pp.2154-55). Staff is available at all times. While the

record-keeping system is antiquated, it was not shown to

have resulted in a denial of care (R.p.2163). It was not even

shown to have resulted in anything the level of negligence.

The record establishes the following facts, each of which

supports the District Court’s conclusion that there is no

constitutional violation.

The physical facilities of the infirmary are attractive.

(Def.Ex. HHH). The infirmary is adequately staffed and

equipped to provide twenty-four hour care. (Def.Ex. HHH;

R. pp. 1866-67). The medical services system at the Prison is

a recently developed, basically sound system that is well

oriented, well-integrated, and relatively well administered

(R.pp.2078-79). The absence of a medical director at the

7

departmental level who is a physician has not interfered

with the quality of the health services program at the

Prison (Def.Ex. HHH, p.6; R.p.2131). There is a good use of

providers with different levels of skills, as in modern

hospital systems (R.p.2128). There is a good division

according to level of care needed. (Def.Ex. HHH). Medical

technicians do not write prescriptions (R.p.653). The

Prison has a plan for medical emergencies that is detailed.

(Def.Ex. M). There are three full-time physicians, three

full-time physician’s assistants and five medical

technicians at the Prison (R.pp.636, 650). Continuing

medical education for Prison medical staff is available

(R.pp. 1882-83). Each shift reports to the shift coming on the

occurrences of the shift (R.pp.774, 1880-81). Physicians

make rounds in segregation units every week (R.p.629).

Dentists are present for a combination of ninety-six

hours per week (R.pp.717, 1891). A consulting oral surgeon

is available (R.p.1891).

The full facilities of Memorial Hospital are available.

(Def.Ex. HHH; R.pp. 1876-78). A full range of consultants,

in all areas except neurology, neurosurgery, and vascular

surgery, is available or under contract (R.pp. 1890, 2153). If

needed, physiotherapy is done at Memorial Hospital

(R.p.1907). Approximately forty-five patients each month

are treated at Wishard Memorial Hospital in Indianapolis

(R.p.1879). This includes amputees (R.p. 1880). There is, if

anything, over-referral to specialists, but not to the extent

that the specialists cannot evaluate each patient properly

(R.pp.2154-55).

Sick call for general population is available five days a

week (R.p.916). There is found no evidence to substantiate

the claim that large numbers of sick call requests are

stopped by officers. The records show that there are few

barriers to health care (R.pp.2147, 2177).

The examination equipment is up-to-date and in good

repair. (Def.Ex. HHH; R.p.1889). The wards in the

infirmary are used for persons not in need of skilled

8

nursing care. Such persons would be outpatients in the free

world. (Def.Ex. HHH; R.pp.2136-37).

Although there are sometimes delays in getting supplies

due to State law and procedures, these delays do not

interfere with care. (R.pp.624, 1869-69, 1876). In the two

years prior to trial, the Prison has received or let bids on an

EKG machine, a new emergency room trolley, $2,500.00

worth of surgical instruments, a new trauma kit, a new x-

ray plant, anew optometry basic unit, new microscope, new

dry processor for x-rays, a new dental x-ray, and a cleaner

for surgical instruments. (R.pp.1869-89). There is an

approved paramedic kit in each shelter unit. (Def.Ex.

HHH). The institution’s ambulance is equivalent to one

found in the free world. (Def.Ex. HHH; R.p.1886). Stab

victims can be adequately stabilized at the infirmary for

transport to Memorial Hospital. (R.pp.509-10). The

laboratory services are good, There is no problem with

using an offender to run tests if his information is limited to

test values. (Def.Ex. HHH; R.p.736). Minor surgery only is

performed at the Prison. (R.pp.1873-74).

The Medicul Services Audit Review Committee consists

of Dr. Freake, a physician, a physician’s assistant, a

medical technician, sometimes the dentist, and the

psychologist when appropriate. (R.pp.615-16, 1926).

Medical policies, including restrictions on length of a

prescription with Audit Committee approval, are

formulated by the medical staff and given to the Warden

for his support. This is not interference with medical

decisions. (P].Ex. 50, 51, 52; Hendrix Exhibits’ 1, 2, 3, 4, 5;

R.pp.622, 2337).

All newly arriving offenders receive an in-take

examination. (Pl.Ex. 53; R.pp.631-32). Newly arrived lifers

are kept in a secluded area until a medical examination can

be completed. (P!.Ex. 11). Annual physical examinations

and medical histories are not effective, and the payoff

would be low (R.p.2161).

No medications were found in the infirmary that were

beyond the expiration date. (Def.Ex. HHH). The new unit-

dose prescription system will be more efficient when fully

in place (Def.Ex. HHH; R.pp.2166-67). Only if different

physicians prescribe medications without records

available is a prescription profile useful to reduce risks

(R.pp.72-73). Aspirin is always available in the cellhouses.

(PI.Ex. 83, p.27). No plaintiff is in need of psychiatric care.

(R.p.1044). The consulting psychiatrist is available for

emergencies. (R.p.1936). No grossly disturbed offenders

were found in housing units, which is rare among prisons.

(Def.Ex. HHH). The psychiatric unit at Westville

Correctional Center has alleviated, to some extent, the

urgency of the need for on-site psychiatric care. (R.p.786).

Westville’s Psychiatric Unit is adequate to meet the needs

of the Prison and of the entire Department. (R.pp.1048,

1844, 1847). Offenders who return from the Psychiatric

Unit at Westville are followed up by the team consisting of

a physician, the psychologist, and the assistant warden for

programs. (R.pp.1928, 1931, 1947). It is better to be an

“outpatient” from the Psychiatrist Unit in the general

population of Westville. This is occurring and is to

continue. (R.p.1050). The psychologist sees up to ten

percent of the population in a month in both group and

individual therapy. (R.p.1915). A program to help two

hundred offenders in protective custody or on idle status is

operating under a grant, with two out of three positions

filled. (R.p.1921). There are at the Prison stress and

relaxation therapy groups involving seventy-five to eighty,

and psychotherapy including substance abuse counseling.

(R.pp.1922-23, 1946). There is a good referral system in

place at the Prison of offenders with mental health

problems. (Def.Ex. GGG; R.pp.1810, 1823). Mental health

services available to offenders at the Prison are relatively

similar to those available through community, government-

sponsored health agencies. (Def.Ex. GGG).

10

REASONS FOR ALLOWANCE OF THE WRIT

The Seventh Circuit has Erroneously Decided a

Question in a Way in Conflict with Controlling

Decisions of this Court, by its failure to Apply

Objective Criteria to an Analysis of Eighth

Amendment Claims.

On June 15, 1981, this Court decided the case of Rhodes v.

Chapman, 452 U.S. 337 (1981), in which this Court

considered “for the first time the limitation that the Eighth

Amendment...imposes upon the condition in which a

State may confine those convicted of crimes.” Jd., at 344-45.

This Court held that the Eighth Amendment prohibits only

those punishments that “involve the unnecessary and

wanton infliction of pain’. ..or are grossly disproportionate

to the severity of the crime...” /d., at 346 (citations

omitted).

A central message of Rhodes is that the Eighth

Amendment does not proscribe prison conditions that do

not, directly or indirectly, result in the infliction of actual,

physical pain. Mere discomfort, frustration, or distress are

not, in this context, matters of constitutional moment. ”To

the extent that [prison] conditions are restrictive and even

harsh, they are part of the penalty that criminal offenders

pay for their offenses against society... . [T]he Constitution

does not mandate comfortable prisons, and prisons...

which house persons convicted of serious crimes, cannot be

free of discomfort.” /d., at 347, 349, and 349 n. 14. Merely

“psychological problems [such as] an increase in tension

and aggression” (/d., 349 n. 15) were viewed by this Court as

constitutionally insignificant. It is “serious deprivations of

basic human. needs” that may be unconstitutional to the

extent that they cause or lead to “pain without any

penological purpose.” J/d., at 347 (emphasis added).

Deprivation of “life’s necessities” may be “cruel and

unusual under the contemporary standard of decency that

we recognized in [Estelle v.] Gamble, [429 U.S. 97 (1976)].”

Id., at 347.

11

Finally, this Court held that judgments respecting

conditions must be informed by “objective factors” and

must reflect “objective indicia,” and that “‘Eighth

Amendment judgments should neither be nor appear to be

merely the subjective views’ of judges.” Jd., at 346, quoting

Rummel v. Estelle, 445 U.S. 263, 275 (1980). See also, Solem

v. Helm, _— U.S. ——, 103 S.Ct. 3001, 3010-11 (1983). In

order to find a condition to be cruel and unusual, there must

be a “concrete injury,” a demonstration in the evidence the

specific condition “either inflicts unnecessary or wanton

pain or is grossly disproportionate to the severity of crimes

warranting imprisonment.” /d., at 347.

The District Court concluded and the Seventh Circuit

upheld the conclusions, that there was no validity to

Respondents’ claims relative to the Prison’s physical

environment, the level of violence, the use of body cavity

searches, harassment of visitors, interference with mail,

management of offender property, the adequacy of the

grievance system, the safety of work lacerations,

disciplinary procedures. vermin control, and diet. The

District Court and the Seventh Circuit pointed to only two

arguably “objective facts”—the routine maintenance and

excessive periods of time spent in cells by offenders on one,

very small (in terms of its population) unit of the Prison.

These problems (if, indeed, they are of a constitutional

magnitude) are susceptible of remedies other than the

drastic and potentially devastating reduction, which step

necessarily impacts not only upon the Prison but upon the

entire criminal justice system of the State of Indiana. The

District Court ordered—and the Seventh Circuit

affirmed—more time out of cell for offenders on the one

unit in which offenders were found to be locked in their

cells for too great a period. The claimed problem of routine

maintenance is an administrative detail that can be dealt

with short of population reduction. Different management

techniques and procedures could render this “problem” a

moot point without the drastic action of reduction in

population.

12

The figures determined by the District Court and

affirmed by the Seventh Circuit lack any “objective

indicia.” The ultimate reduction to 1615 finds no basis in

the record, and is therefore nothing more than the

“subjective view” of judges. The closest “fact” to this figure

is that there are approximately 1615 cells for general

population. This does not include specialized cells (i.e.,

medical and disciplinary segregation or protective

custody), dormitory space, or the fact of large, two-person

cells in the honor cellhouse about which no one complained.

There is a constant, predictable population in each of these

areas. Thus, even given a one-man one-cell position, there is

no objective factor demonstrating that 1615 is an

appropriate level of population. The District Court

virtually picked the number out of thin air and the Seventh

Circuit affirmed the figure as “broadly supported by the

Record,” pointing only to the age of the Prison and the

length of time out of cell for the fifty-three (53) offenders in

one unit. Neither the District Court nor the Seventh Circuit

found any other adverse effect of the population level. It is

noteworthy that neither Court found a constitutional

violation in the amount of time out of cell for the vast

majority of offenders (the general population), in the

physical plant per se, in the staffing levels or training, or in

the level of violence. These crucial objective factors point to

a finding of an acceptable rather than over-crowded

population level.

The Seventh Circuit erroneously affirmed the decision

and order of the District Court in the absence of any

objective indicia of a violation of the Eighth Amendment,

in contravention of the applicable decisions of this Court.

Therefore, a writ of certiorari should issue.

The Seventh Circuit has also erroneously affirmed the

decision and order of the District Court that offenders

confined on the Admissions and Orientation Unit (“A & O

Unit”) be given three hours out of their cells daily, with one

of the hours to be out of doors at the option of the offender.

13

This conclusion is in conflict with controlling decisions of

this Court, of the Seventh Circuit, and of other Circuit

Courts of Appeals.

“Deprivation of exercise per se does not violate the cruel

and unusual clause....” Miller v. Carson, 563 F.2d 741, 751

n. 12 (5th Cir. 1977). And in McCray v. Sullivan, 509 F.2d

1332, 1335 (1975), the Fifth Circuit affirmed a district

court’s refusal to order that exercise be made available to

offenders in administrative segregation. The Seventh

Circuit itself, in interpreting and applying Rhodes v.

Chapman, held that “unrelieved confinement in cells” and

“lack of recreational opportunities” do not state a cause of

action. Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.

1981). The restrictive environment of the A & O Unit is

necessary due to its purpose and function as a segregation

unit. Neither the District Court nor the Seventh Circuit

paid any attention to the function of the unit, in

contravention of this Court’s directive in Rhodes v.

Chapman that to constitute a violation there must be “pain

without penological purpose” (emphasis added).

The order relating to the amount of time out of cell on the

A & O Unit is contrary to the controlling decisions of this

Court, of other Courts of Appeals, and of the Seventh

Circuit.

The District Court concluded that there was no

deliberate indifference to serious medical needs of

offenders at the Prison. The Seventh Circuit vacated this

part of the District Court’s decision and remanded for

further relief. In so doing, the Seventh Circuit did not reject

the findings of the District Court as unreasonable or as an

abuse of discretion. That Court merely rejected the District

Court, finding a language barrier, the absence of a

psychiatrist, deficiencies in the care of one offender two

years before trial, delays in care to three of the

Respondents, and a lack of colostomy bags. Based upon

these unrelated and isolated incidents, the Seventh Circuit

found that the system will inevitably result in a great deal

14

of pain. Momentary lapses and isolated delays do not

constitute “deliberate indifference to ser‘vus medical needs

of prisoners,” as required under Estelle v. Gamble, 429 U.S.

97 (1976). The Seventh Circuit totally ignored the finding of

the District Court, just as it failed to even mention the

Department’s Westville Psychiatric Unit only a few miles

from the Prison as an alternative to on-site, full-time

psychiatric care. There was no evidence that the “language

barrier” resulted in inadequate, delayed, or inappropriate

health care. There was no evidence of that situations such

as that involving the one offender were commonplace or

inevitable. The Seventh Circuit’s decision on medical care

is nothing more nor less than a statement of the type of

health care delivery system subjectively believed by that

Court to be appropriate for a maximum security

institution. The view is based upon isolated incidents and

not upon either systemic deficiencies or objective criteria.

The reversal is thus contrary to the decisions of this Court

in both substance and procedure, and a writ of certiorari to

review that determination should issue.

The decision of the Seventh Circuit is contrary to the

controlling decisions of this Court. Therefore, a writ of

certiorari to review the decision should issue.

CONCLUSION

For the foregoing reasons, it is respectfully urged that a

writ of certiorari issue to review the decision of the United

States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

Attorneys for Petitioners

15

Appendix

JUDGMENT ON DECISION BY THE COURT

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA

Consolidated Cases

Civil Action File No.

JAMES OpDIS HENDRIX et al ) 876-187

BILLIE R. ADAMS ) S77-35

BRUCE C. WELLMAN et al ) §79-32

)

vs. ) JUDGMENT

)

GORDON H. FAULKNER et al )

JACK DUCKWORTH et al )

GORDON H. FAULKNER et al )

This action came on for trial before the Court, Honorable

ALLEN SHARP, United States District Judge, presiding,

and the issues having been duly tried and a decision having

been duly rendered,

It is Ordered and Adjudged that Plaintiffs HENDRIX

and BOBBITT shall recover damages from the defendants

in their official capacity in the amount of $500.00 each.

Plaintiff CARROLL shall recover damages from the

defendants in their official capacity in the amount of

$1,000.00.

Defendants are ordered to begin astaged reduction of the

inmate population at Indiana State Prison. That reduction

must commence now and be concluded on the schedule here

ordered. The inmate population at the Indiana State Prison

must be reduced so as to not exceed a total of 1750 inmates

by December 31, 1982. By December 31, 1983, additional

reduction must be made so that the total inmate population

shall not exceed 1615. Based on the evidence there should

be and hereby is placed a ceiling on inmate population. On

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and after January 1, 1984, no more than 1615inmates shall

be confined at the Indiana State Prison. The facts of this

case and the Eighth Amendment compel this result.

Further, all inmates housed in the A & O unit shall receive

three hours a day of time out of cell. Outdoor exercise must

be available at the option of the inmates for one of those

three hours every day. Obviously, inclement weather may

limit this time outdoors but such time shall be available at

the inmates’ option.

This Court shall retain jurisdiction of this cause. This

opinion shall constitute the necessary findings of fact and

conclusions of law under Federal Rule of Civil Procedure

52. The defendants shall file timely reports to the Court

indicating their compliance with this order.

Each party will bear its own cost. The question of the

award of attorney fees to plaintiffs’ counsel under 42 U.S.C.

§1988 is reserved for further proceedings.

Dated at SOUTH BEND, INDIANA, this 21st day of

OCTOBER, 1981.

RICHARD E. THOMAS

Clerk of Court

BY TERESE M. HINKLE

Deputy Clerk

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BRUCE D. WELLMAN et al

Plaintiffs

No. S79-32

ts

GORDON H. FAULKNER et al

Defendants

BILLIE R. ADAMS

Plaintiff

No. 877-35

Vv.

JACK R. DUCKWORTH et al

Defendants

JAMES ODIS HENDRIX et al

Plaintiffs

v. No. 876-187

OTIS R. BOWEN et al

Defendants

me me me ee ee ee ee ee re eee ee ee eee”

ORDER

All defendants in these causes filed, by the Attorney

General of the State of Indiana, a Motion to Amend the

Judgment of this Court, which was entered October 21,

1981, pursuant to Federal Rules of Civil Practice 5%e). The

stated purpose being to correct alleged manifest errors of

law and fact. No new or additional evidence is offered.

The Court and parties agree that there is a mistake in

regard to the size of the cells in I Cell House. On page 44 of

the opinion this Court found that the “Cells in I Cell House

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are 56 square feet in size.” That finding should read that the

“Cells in I Cell House contain 56 square feet per occupant,

112 square feet total.” The opinion of the Court is hereby

ordered amended to so read. No issue of double celling

inmates in I Cell House was ever raised,

Secondly, the defendants contend that the final

population ceiling of 1615 inmates fails to adequately

consider K Dormitory, the reduce@ security housing

immediately outside the prison walls. The defendants

construe this ceiling as a simple mathematical calculation

containing an error which would warrant an increase in

the population ceiling. Such a construction seriously

misreads the analytic framework applied by the Court,

however inartful. For indeed, as the plaintiff's noted in

their response a simple tabulation of the number of cells

which comply with contemporary standards may well have

resulted in a significantly lower ceiling. Rather, the

analysis is that of the Eighth Amendment which compels

consideration of the amalgam of conditions, past, present,

and future, which make up the prison. Included in that is

this Court’s statement that all currently existing housing at

the I.S.P. was considered. (Memorandum Opinion at p.

150). This ceiling arises from the Court’s determination of

the total capability of the correction system at the I.S.P.

This Court was fully aware of the evidence alluded to by the

defendants, understood the ramifications of its order in

regard to population ceiling, and in light of the evidence

can only consider said order restrained. Therefore, the

Court declines to amend its judgment in this respect.

Thirdly, in regard to the incidents involving inmates

Wadood (Love) and Chris Brown, the defendants contend

that rebutting evidence compels different findings.

However, this Court considered all the evidence in regard

to these incidents and in light of the coherence and

credibility of the testimony, found these facts. Further

review by this Court at this time recalls those witnesses and

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serves only to affirm those initial conclusions. Therefore,

the Court declines to amend its judgment in these respects.

Finally, the defendants allege error on the part of the

Court in awarding damages to plaintiffs Hendrix, Carroll

and Bobbit. They assert the failure of the Court to enter a

finding of personal involvement on the part of a named

defendant as in Adams v, Pate, 445 F.2d 105 (7th Cir. 1971).

However, in the context of a class action alleging

inadequate medical care the standard is provided by the

Eighth Amendment, as interpreted in Estelle v. Gamble,

429 U.S. 97 (1976). Estelle requires a showing of deliberate

indifference to a serious medical need. A plethora of cases

have explained this to include systematic deficiencies in

staffing, facilities, equipment or procedures. These

individuals endured for extended periods of time a

systematic failure to receive treatment, even though their

ailments were made known. This Circuit has recognized

that a denial of medical care to an inmate “may be of sucha

kind that the claimant will have had no personal contact

with, or knowledge of the person directly responsible.”

Duncan v, Duckworth, 644 F.2d 653 (7th Cire. 1981).

Therefore, the Court declines to amend its judgment in

these respects.

Enter November 25, 1981.

Allen Sharp

JUDGE, UNITED STATES

DISTRICT COURT

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IN THE

UNITED STATES COURT OF

APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 81-3060 and 81-3061

BRUCE D. WELLMAN, et al.,

Plaintiffs-A ppellants, Cross-A ppellees,

Vv.

GORDON H. FAULKNER, et al.,

Defendants-A ppellees, Cross-A ppellants.

Appeals from the United States District Court for the Northern District of

Indiana, South Bend Division,

Nos. 76 C 1877, 77 C 35 and 79 C 32—Allen Sharp, Judge

ARGUED SfPTEMBER 13, 1982—DECIDED AUGUST 9, 1983

Before BAUER and CUDAHY, Circuit Judges, and WEICK,

Senior Circuit Judge.*

CUDAHY, Circuit Judge. In these consolidated appeals we

consider whether the conditions of imprisonment at the

Indiana state prison at Michigan City meet constitutional

* The Honorable Paul C, Weick, Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit, is sitting by designation.

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standards. Plaintiffs challenge the adequacy of Michigan

City’s medical care, the condition of its physical plant, the

level of violence, the amount of time prisoners must spend

in their cells and certain prison procedures (or lack thereof)

that allegedly heighten the level of tension in the prison.

The district court found that the totality of conditions did

not violate the eighth amendment but that certain specific

constitutional violations were established. Hendrir v.

Faulkner, 525 F. Supp. 435 (N.D. Ind. 1981). We affirm the

district court's finding regarding the totality of conditions,

its findings of certain specific constitutional violations and

the remedies it ordered. We also conclude, however, that

plaintiffs have established that the medical care at

Michigan City is inadequate by constitutional standards

and we therefore reverse and remand for further

proceedings to determine further appropriate relief.

The state cross-appeals from the district court’s damage

award. We vacate the award and remand for consideration

of whether the plaintiffs established at trial the requisite

personal liability of defendants. We affirm the district

court's denial of damages to plaintiffs who did not establish

the personal responsibility of defendants.

Medical Care

When a state imposes imprisonment as a punishment for

crime, it accepts the obligation to provide persons in its

custody with a medical care system that meets minimal

standards of adequacy. This obligation is enforceable in

federal court, since inadequate medical care for prisoners

violates the eighth amendment.' Estelle v. Gamble, 429 U.S.

97, 104 (1976); id. at 116 n.13 (“denial of medical care is

surely not part of the punishment which civilized nations

may impose for crime.”) (Stevens, J., dissenting). “When

systematic deficiencies in staffing, facilities or procedures

make unnecessary suffering inevitable, a court will not

' The eighth amendment is applicable to the state through the

fourteenth amendment. Robinson v. California, 370 U.S. 660 (1962).

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hesitate to use its injunctive powers.” Todaro v. Ward, 565

F.2d 48, 52 (2d Cir. 1977) (Kaufman, C.J.). Further, the

policy of deferring to the judgment of prison officials in

matters of prison discipline and security does not usually

apply in the context of medical care to the same degree as in

other contexts. /d. at 54. Compare Bell v. Wolfish, 441 U.S.

520, 551 n.32 (1979) (deferring to prison officials’ judgment

on means to control smuggling of money, drugs and

weapons into prison).

With respect to medical care, plaintiffs can establish an

eighth amendment violation only if they can prove that

there has been a “deliberate indifference to serious medical

needs of prisoners.” Estelle v. Gamble, 429 U.S. at 104. Asa

practical matter, “deliberate indifterence” can be

evidenced by “repeated examples of negligent acts which

disclose a pattern of conduct by the prison medical staff” or

it can be demonstrated by “proving there are such systemic

and gross deficiencies in staffing, facilities, equipment, or

procedures that the inmate population is effectively denied

access to adequate medicare care.” Ramos v. Lamm, 639

F.2d 559, 575 (10th Cir. 1980) (citation omitted), cert.

denied, 450 U.S. 1041 (1981). See also Todaro v. Ward, 565

F.2d 48, 52 (2d Cir. 1977).

In the instant case, we think the record contains

sufficient evidence of repeated instances of negligent

medical treatment together with evidence of general

systemic deficiencies to establish that there is deliberate

indifference to serious medical needs such that

unnecessary suffering is inevitable. For example, two of

the three physicians at Michigan City are recent

immigrants from Vietnam and, unfortunately, their

English language skills are such that they cannot

communicate effectively with their patients. A physician's

assistant at the prison testified “I've seen [the prisoners]

come out storming mad because they do not understand

them.” Tr. at 662. Even the defendants’ medical expert

testified that he observed a “language barrier between the

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inmate and the physician on a number of occasions” and

acknowledged that this problem could interfere with the

quality and effectiveness of medical care. Tr. at 2152-53.

An impenetrable language barrier between doctor and

patient can readily lead to misdiagnoses and therefore

unnecessary pain and suffering. This type of language

problem which is uncorrected over a long period of time

and as to which there is no prospect of alleviation, can

contribute to unconstitutional deficiencies in medical care.

Nor has the state adequately staffed the psychiatric care

component of Michigan City’s medical care system.

Treatment of the mental disorders of mentally disturbed

inmates is a “serious medical need.” Ramos v. Lamm, 639

F.2d 559, 574 (10th Cir. 1980), cert. denied, 450 U.S. 1041

(1981); Jnmates v. Pierce, 612 F.2d 754, 763 (3rd Cir. 1979);

Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977); Finney

v. Mabry, 534 F. Supp. 1026, 1087 (E.D. Ark. 1982). At

Michigan City, however, the position of staff psychiatrist

has been unfilled for over two years, and there seems to be

no prospect of filling it. Defendants’ medical expert saw

this as “{t]he most obvious serious deficiency in health care

at Indiana State Prison” because “without an on-site

psychiatrist there is no one qualified to evaluate and treat

psychiatric emergencies such as suicide and homicide

candidates, or to follow patients who need to be maintained

on long term psychotropic medications.” DX HHH at 13.

Maintenance on long term psychotropic medications

enables patients to avoid the unnecessary suffering of acute

episodes of mental illness. Without such care, repeated

acute episodes can be predicted. Tr. at 1002-03. As

plaintiffs’ psychiatric expert explained, a psychiatrist is

* Plaintiffs’ psychiatric expert testified that, “[glenerally, the

occurrence of repeated episodes during which such an individual

becomes floridly psychotic is accompanied by a progressive

deterioration in psychological and intellectual functioning which leads

to more and more serious impairment of that person's capability of

adjustment.” Tr. at 1004.

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needed to supervise long term maintenance because “{a]

regular physician, that is non-psychiatric physician is not

really in a position to perform the evaluation to make

decisions about drug dosage that would require the

services of a psychiatrist.” Tr. at 1003.*

The district court recognized the importance of on-site

care, but decided against finding an eighth amendment

violation in part because a psychiatric position was

authorized for the prison and prison officials had been

trying for two years to fill it. We think this circumstance

may weigh more heavily against the state than for it, since

the position has remained vacant for two years and the

authorized salary is, in the district court’s words, “woefully

inadequate.” Despite the apparent good intentions of prison

officials, there seems to be no foreseeable cure for this

serious systemic deficiency.

In addition, plaintiffs showed many individual instances

of medical maltreatment, including several that the

district court found constituted eighth amendment

violations in and of themselves and for which the district

court awarded damages. For example, James Hendrix was

denied treatment for a stomach problem fdr two years,

Melon Carrol! was denied treatment for a painful abscess

for five years and Grady Bobbitt was denied treatment for

a dental problem for two years. The district court found

that, “{t]hese individuals endured for extended periods of

time a systematic failure to receive treatment, even though

their ailments were made known.” Order of November 25,

1981, Defendants-Appellees’ Appendix at 97.

In addition, there was a good deal of evidence about the

' Warden Duckworth testified that hiring a psychiatrist was the single

greatest need he saw for the prison. A psychiatrist would not only be

beneficial to the mentally il! patients themselves but would also benefit

the rest of the inmates because the mentally ill patients make life less

bearable for the majority. Tr. at 2340. Warden Duckworth expiained

that he has been unable to hire a psychiatrist because the authorized

salary is too low and he cannot do anything about raising it

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seemingly inadequate medical care received by James

Stubblefield, who died of heart failure at age 47. Mr.

Stubblefield first came to the prison infirmary at 3:00 PM

on February 9, 1979, and complained of chest pains. His

blood pressure and pulse were checked and he was sent

back to his cell. By 6:00 PM, Mr. Stubblefield returned to

the infirmary again complaining of chest pain. He

appeared to be in “severe distress” and had trouble

breathing. PX 88. Nevertheless, no physician came to

check on Stubblefield. A prison doctor was called by

telephone and he prescribed a mild tranquilizer.

Stubblefield was then admitted to the prison infirmary. By

7:30 PM, Stubblefield’s blood pressure had dropped to

60/40 and his pulse was irregular. Plaintiffs’ medical

expert and defendants’ medical expert agreed that

Stubblefield “had suffered some type of cardiovascular

catastrophe at that point.” “He was in cardiovascular

shock.” Tr. at 2120, 2121. Still no doctor came to see

Stubblefield. At 9:45 PM, Stubblefield’s blood pressure

was still only 60/40 and his pulse rate was up to 120 beats

per minute. The infirmary progress notes state, “request

[the doctor] to come in again and again he declined.” PX 88.

Finally, after four attempts to get [the doctor] to see

Stubblefield, the infirmary called a second prison doctor.

This doctor prescribed some medication for Stubblefield,

though he did not order that Stubblefield be sent to the

hospital until midnight, nine hours after Stubblefield had

begun alerting the prison personnel to his chest pain.

Plaintiffs’ medical expert testified that there “were very

serious deficiencies in the care of Mr. Stubblefield.” Tr. at

755. Defendants’ medical expert did not dispute this

conclusion. See Tr. at 2119-23. Instead, defendants’ medical

expert testified that the modern treatment for

cardiovascular shock is to place the patient in an intensive

care unit. Yet five hours passed from the time Stubblefield

was obviously in cardiovascular shock and the time he was

finally taken to the hospital. He died the following day.

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There also have been very disturbing problems in

stocking necessary medical supplies. Tr. 639-40. One of the

more distressing instances of this problem is the prison’s

apparently continuing difficulty in stocking disposable

waste-collection bags for inmates who have had a

colostomy. These inmates have been forced to wash out and

re-use bags that are designed for single-use. A physician’s

assistant at the prison explained why this practice literally

stank: “It’s very foul smelling for one, causes problems in

the cells next to the inmates. The seals on these are only

designed to be used once so they do not seal properly

afterwards. They do not drain correctly after being used.”

Tr. at 640.

Therefore, given the gross deficiencies in staffing, the

shocking delays in treatment and the ongoing severe

problems in stocking needed supplies, we think plaintiffs

have established that there is a deliberate indifference to

serious medical needs of prisoners at Michigan City such

that a great deal of unnecessary suffering is inevitable. We,

of course, recognize that many of these appalling medical

deficiencies are closely related to the lack of funds to

support these activities. We understand that prison

officials do not set funding levels for the prison. But, as a

matter of constitutional law, a certain minimum level of

medical service must be maintained wo avoid the imposition

of cruel and unusual punishment.

Overcrowding

Defendants appeal from the district court’s holding that

Michigan City is unconstitutionally overcrowded: “(t]he

most serious problem at the prison is simple overcrowding.

Given the nature and age of the physical plant it is

pervasive and cuts across all other issues here. Given the

most generous application of judicia! restrain it raises

serious Eighth Amendment problems. In the context of the

physical plant and the limits on staffing this overcrowding

constitutes a violation of the Eighth Amendment of the

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Constitution of the United States. This Court reaches this

conclusion with greatest reluctance but the facts compel

the conclusion.” Hendrix, 525 F. Supp. at 527. Accordingly,

the district court ordered a two-stage reduction in

population from 1950 inmates at time of trial to 1750

inmates by December 31, 1982 and to 1615 inmates by

December 31, 1983.

We think the district court’s conclusion is broadly

supported by the Record. Michigan City’s physical plant is

more than one hundred years old. Given its age, it is not

surprising that there are problems with plumbing,

electrical wiring and rodent and insect infestation. Routine

maintenance in the cells, corridors and main food service

area is deficient. As discussed above, the medical care

system makes unncessary suffering inevitable, and

overcrowding simply heightens this pain. Overcrowding

also has resulted in extremely limited time for outside

recreation and unreasonable periods of time some

prisoners must spend locked in exceedingly cramped cells.

For example, prisoners in the A & O Unit have been

spending between 22 and 23 hours per day in their cells,

although the cells’ floor space only amounts to 17 square feet.

There was testimony that some inmates have not had

outside recreation in five months. There has also been an

extreme shortage of prison personnel in recent years.

Hence, we agree with the district court that at current

population levels Michigan Cit) ’s physical and personnel

resources are so overtaxed that unnecessary suffering is

serious and inevitable.

Other Conditions of Confinement

Various prison conditions do not exist in isolation.

Rather, challenged conditions must be viewed in the light

of other prison conditions that may aggravate or mitigate

the effect of the challenged conditions. For example, “the

constitutionality of double-celling involves an assessment

of many factors, including, intera alia, the duration of the

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confinement, the size of the cells and the opportunities for

inmates to leave their cells during the normal prison

routine.” Madyun v. Thompson, 657 F.2d 868, 872 n.5 (7th

Cir. 1981). See Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th

Cir.), modified, 688 F.2d 266 (5th Cir. 1982), cert. denied,

103 S. Ct. 1438 (1983); Villaneuva v. George, 659 F.2d 851,

854 (8th Cir. 1981) (en banc.). See also Smith v. Fairman,

690 F.2d 122, 125 (7th Cir. 1982). At the same time,

“otherwise unquestionably constitutional conditions [do

not] become unconstitutional by their aggregation.”

Madyun, 657 F.2d at 874 n.10. But see Rhodes v. Chapman,

452 U.S. 337, 362-63 (Brennan, J., concurring).

With these standards in mind, we have reviewed the

evidence respecting plaintiffs’ challenges to the prison’s

physical environment, the level of violence and several

prison practices that are alleged to create unnecessary

tension in the institution.‘ Based on this review, we cannot

say that the district court erred in determining that these

conditions of confinement were insufficient to establish

further eighth amendment violations.

Damages

Plaintiffs appeal from the district court’s denial of

damages to the named plaintiffs in 81-3060. Decedents

cross-appeal from the district court’s award of five

hundred dollars each to plaintiffs Hendrix and Bobbitt and

one thousand dollars to plaintiff Carroll. Damages were

awarded to these plaintiffs in 81-3061 for specific instances

of medical maltreatment—these prisoners were denied

adequate medical care for several years—and not for the

general deficiencies in medical facilities and personnel.

‘ Plaintiffs argue that “unnecessary tension in the institution is created

by arbitrary and racially harassing body cavity searches, harassment of

visitors, illegal interference with inmate mail, frequent mismanagement of

inmates’ property coupled with an inadequate grievance system, unsafe

work locations and arbitrary and capricious disciplinary procedures.”

Plaintiffs-Appellants’ Brief at 10-11.

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Defendants contend that none of the plaintiffs in 81-3060 or

in 81-3061 presented at trial any evidence of personal

involvement, knowledge or acquiescence in these denials of

medical care by any of the named defendants. See Adams v.

Pate, 445 F.2d 105 (7th Cir. 1971). The named defendants

are the Warden, the Commissioner and the Director of

Classification and Treatment.®

To recover damages under 42 U.S.C. §1983, a plaintiff

must establish a defendant’s personal responsibility for the

claimed deprivation of a constitutional right. Duncan v.

Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). The personal

responsibility requirement is satisifed “if the official acts

or fails to act with a deliberate or reckless disregard of

plaintiff's constitutional rights, or if the conduct causing

the constitutional deprivation occurs at her direction or

with her knowledge and consent.” Crowder v. Lash, 687

F.2d 996, 1005 (7th Cir. 1982).

We consider first the plaintiffs’ argument for a

modification. based on several of our cases, in the

procedural requirements for proving defendants’ personal

responsibility. Thus, several of our cases have held that,

under some circumstances the responsibility of senior

prison officials can be assumed at the pleading stage,

pending discovery of those who were directly responsible

for whatever deprivation may have occurred. Duncan, 644

F.2d 653, 655; Chavis v. Rowe, 643 F.2d 1281, 1290 n.9 (7th

Cir.), cert. denied, 454 U.S. 907 (1981). Plaintiffs argue that

this rule should be applied and extended in the case before

us so that a named defendant’s liability may be presumed

until the defendant identifies who was directly responsible

if the named defendant was not. “If those officials so named

or called to testify all remain silent as to the persons

responsible for the deprivations and such information is in

the hands of defendants but not necessarily discoverable by

* The “treatment” referred to in Edward Jones’ job title apparently does

not mean medical treatment. See Tr. at 1953-91.

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plaintiffs, then liability should attach to those officials who

are in a position to know but, through a conspiracy of

silence, do not disclose that information.” Plaintiffs-

Appellants’ Reply Brief at 23.

This argument is similar to one that carried the day for

the plaintiff in Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.

2d 687 (1944). Mr. Ybarra suffered an injury of unknown

origin to his shoulder between the time he was anesthetized

for an appendectomy and the time he awoke in the recovery

room. Ybarra argued that res ipsa loquitur should be

applied against all of the doctors and hospital employees

connected with the operation, though presumably not all of

them were responsible. The defendants argued that they

were entitled to a dismissal because the plaintiff had not

shown which of the defendants was responsible for his

injury. The California Supreme Court held that Ybarra

could proceed to trial because under the circumstances it

was appropriate to place the burden of initial explanation

for the injury on the defendants. At the subsequent trial,

each of the testifying defendants denied seeing anything

occur that could have caused the injury tothe plaintiff. The

trial court held, however, that this evidence did not

overcome the plaintiff's prima facie case and entered

judgment against all the defendants. The California

appellate court affirmed the judgment. Ybarra v.

Spangard, 93 Cal. App. 2d 43, 208 P.2d 445 (1949) (“ Ybarra

II”).

The principle basis for applying res ipsa loquitur in

Ybarra apparently was the special circumstances of the

medical personnel-patient relationship. “The basis of the

decision appears quite definitely to have been the special

responsibility for the plaintiff's safety and undertaken by

everyone concerned.” W. Prosser, HANDBOOK OF THE LAW

OF TORTS 223 (4th ed. 1971). If so, Ybarra is analogous to

the case before us insofar as prison authorities have a

special responsibility to inmates who are totally dependent

upon them to receive medical treatment. Estelle, 429 U.S.

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at 103. Ybarra is, however, not analogous to the degree that

these plaintiffs, unlike Ybarra, were not unconscious at the

time they suffered the alleged injuries.

Considering all relevant factors, we do not think it

appropriate in the case before us to extend, in the fashion of

Ybarra II, the presumption of senior prison official

responsibility beyond the pleading stage. See Duncan, 644

F.2d 653. Unlike Ybarra, the defendants here are not the

individuals who were immediately responsible for

plaintiffs’ care. Also, unlike Ybarra in which the standard

of liability was mere negligence, in the instant case

negligence would not be enough, Estelle, 429 U.S. at 106.

We are reluctant under these facts to presume a higher

degree of culpability. Finally, although prisoners are to

some extend handicapped in identifying who precisely is

responsible for their maltreatment, we cannot say that they

are so limited in their access to information that the burden

of explanation should be shifted to defendants beyond the

point indicated in Duncan, 644 F.2d 653. We confront the

problem here after trial, when through discovery and

otherwise, there should have been an opportunity to

identify the directly culpable parties. As indicated above

different considerations would apply on a motion to dismiss

or otherwise early in the proceedings.

We next consider plaintiffs’ entitlement to damages

under the existing standards. With respect to the plaintiffs

in 81-3060, the district court denied them damages because

they had not shown that any of the named defendants were

responsible for the injuries they suffered. Hendrir, 525

F.Supp. at 447, 450, 454, 457, 459 and 463. Having

reviewed the evidence and plaintiffs’ arguments, we cannot

conclude that the district court erred in finding that the

personal responsibility requirements of Adams v. Pate, 445

F.2d 105, and its progeny were not satisfied. Of course, the

same principles governing personal responsibility apply to

the medical claims of these plaintiffs as to the claims of

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Hendrix, Bobbitt and Carroll, explained below, and the

district court, if appropriate, may consider this on remand.

With respect to those plaintiffs in 81-3061 who were

awarded damages (Messrs. Hendrix, Bobbitt and Carroll),

we vacate the awards and remand for clarification and

appropriate disposition. The district court, in its post-trial

Order, stated with respect to Hendix, Bobbitt and Carroll:

These individuals endured for extended periods of

time a systematic failure to receive treatment, even

though their ailments were made known.

Order of November 25, 1981, Defendants-Appellees’

Appendix at 97. This statement of the district court can be

read as suggesting that some or all of the named defendants

knew of and acquiesced in the nontreatment of these

plaintiffs so that there may be an “affirmative link”

between the defendants and the constitutional violation.

See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.

1983). After making this statement, however, the district

court cited Duncan v. Duckworth, 644 F.2d 653 (7th Cir.

1981). As we discussed above, exclusive reliance on Duncan

to establish liability of persons having no “affirmative link”

to the constitutional violation would be inappropriate in

this case after trial on the merits. On the other hand, there

may be a connection through “systemic” conditions for

which senior prison officials may have been responsible.

Presumably, the latter circumstance would involve

problems of proximate cause which we are not now ina

position to evaluate. Thus, we vacate the award and

remand for clarification of the plaintiffs’ entitlement to

damages under Adams v. Pate, 445 F.2d 105, and its

progeny.

Costs

The district court held that each party should bear its

own costs. This court follows the general rule about the

award of costs, namely, that there is a presumption in favor

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of awarding costs to the prevailing party. Popeil Brothers,

Inc. v. Schick Electric, Inc., 516 F.2d 772, 774-75 (7th Cir.

1975). To prevent an award of costs, the losing party must

overcome the presumption. Jd. at 775.

In light of the additional relief we have ordered herein,

we vacate the district court’s order and remand for a

determination by the district court whether costs should

now be awarded to plaintiffs. See 6J. Moore, W. Taggart, &

J. Wicker, MOORE’S FEDERAL PRACTICE 9454.70 (2d ed.

1982).

The cause is affirmed in part, vacated in part and

remanded for further proceedings in accordance with this

opinion.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

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Opinion by Judge Cudahy

JUDGMENT—ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

August 9, 1983

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD D. CuDAHY, Circuit Judge

Hon. PAUL C. WEICK, Senior Circuit Judge*

BRUCE D. WELLMAN, et al., )

Plaintiffs-A ppellants, ) Appeals from

Cross-A ppellees, ) the United

) States District

) Court for the

) Northern District

) of Indiana,

Nos. 81-3060, vs ) South Bend

81-3061 ) Division.

)

) Nos. 76-C-187,

GORDON H. FAULKNER, et al., ) 77-C-035,

Defendants-A ppellees, ) and 79-C-032

Cross-A ppellecs. ) Allen Sharp,

) Judge.

This cause was heard on the record from the Uniied

States District Court for the Northern District of Indiana,

South Bend Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the said

District Court in this cause appealed from be, and the same

is hereby, AFFIRMED in part, VACATED in part and

REMANDED, in accordance with the opinion of this Court

filed this date.

*The Honorable Paul C. Weick, Senior Circuit Judge of the United

States Court of Appeals for the Sixth Circuit, is sitting by designation.

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