# Petition — Faulkner v. Wellman

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0924%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 1217

## Text

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

A-l

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

A-2

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

A-3

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

A-4

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

A-5

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.

A-6

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).

A-7

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

A-8

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.

A-9

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

A-10

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.

A-1l

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

A-12

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

A-13

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.

A-14

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.

A-15

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.

A-16

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

A-17

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

A-18

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

A-19

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.

A-20

(THIS PAGE INTENTIONALLY LEFT BLANK)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0924%3A1. Public record. Not legal advice.