Supplemental Appendix — Faulkner v. Wellman

83-768 NOW 7 1983

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.

SUPPLEMENTAL APPENDIX TO

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, IN 46206

James Odis HENDRIX, Grady Thomas Bobbitt,

Melon Carrol!, Donald R. Sceiffers, James

Blackburn, Plaintiffs,

Vv

Gordon H. FAULKNER, Edward Jones, Jack

Duckworth, Charles Adkins, Defendants.

Bill R. ADAMS, Plaintiff,

v

Jack DUCKWORTH, J. F. Kozlowski, P.G.

Youngblood, Bob Glaney, R. Shriner, Rodney Keith,

Ronald Batchelor, Byron Glick, G. Wilkins,

Defendants.

Bruce C. WELLMAN, Dwight Walker, Douglas

Shackelford a/k/a/ Achebe H. Lateef, Raymond

Hurt, Richard Colvin, Stewart Brooks, Plaintiffs,

v.

Gordon H. FAULKNER, Norman Hunt, Cloid L.

Shuler, Dean Neitzke, Jack Duckworth, Edward

Jones, Major Gothel D. Wilkins, Ronald Freake,

M.D., Roger D. Saylors, M.D., Captain Eugene

Koziatek, Sgt. Byron Glick, St Robert McKee,

Officer John M. Sharp, Lt. John Riggs, Officer Bill

J. Kennedy, Lt. David G. Oden, Defendants.

Nos. S 76-187, S 77-35 and S 79-32.

United States District Court,

N.D. Indiana,

South Bend, Division.

Oct. 21, 1981.

A civil rights action was brought by prison inmates

challenging the conditions of confinement at a state prison.

The District Court, Sharp, J., held that: (1) proposed class

consisting of inmates who are or may be in future confined

at the state prison was certified; (2) claims of individual in-

mates for damages would be dismissed where no specific

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named defendant was alleged to be responsible for claimed

deprivations; (3) inmates who had registered medical

complaints between two and five years before receiving

treatment for ailments which, while not life-threatening,

involved considerable discomfort and were exacerbated by

delay in treatment were entitled to damages for violation of

their Eighth Amendment right to medical treatment; (4)

prison provided inmates with minimally adequate level of

health care which was not so deficient as to show deliberate

indifference to inmates’ serious medical needs; (5) prison

which had inmate population 20% over capacity unconstitu-

tionally deprived inmates of Eighth Amendment rights

where such overcrowding subjected inmates in in-

adequately sized cells to inadequate recreation time out of

cells; and (6) totality of circumstances at prison did not

deprive inmates of Eighth Amendment rights.

Order accordingly.

1. Federal Civil Procedure 161

Threshold requirement for class certification is

existence of class which requires representation; class as

well as its members must be clearly defined and identified

with particularity. Fed.Rules Civ.Proc. Rule 23(a), (b\2),

28 U.S.C.A.

2. Federal Civil Procedure 161

Every potential member of class in class action is not re-

quired to be identifiable, but merely circumscribed by

some objective set of criteria. Fed.Rules Civ.Proc. Rule

23(a), (bX2), 28 U.S.C.A.

3. Federal Civil Procedure 164

Second threshold requirement for class certification is

that representatives are members of that class. Fed. Rules

Civ.Proc. Rule 23(a), (b2), 28 U.S.C.A.

4. Federal Civil Procedure 186.10

It is appropriate to include future inmates in class action

challenging prison conditions.

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5. Federal Civil Procedure 163

While numbers alone do not satisfy numerosity require-

ment of class action, they are relevant consideration.

Fed.Rules Civ.Proc. Rule 23(a), (b\(2), 28 U.S.C.A.

6. Federal Civil Procedure 164

Standard for adequacy of representatives under class ac-

tion rule is that representatives must be of such character

as to assure vigorous protection of class action so that

absent class members’ rights are certain to be protected.

Fed.Rules Civ.Proc. Rule 23(aX4), 28 U.S.C.A.

7. Federal Civil Procedure 164

Second element of adequate representation under class

action rule is that named plaintiffs’ counsel be sufficiently

competent to conduct proposed litigation. Fed.Rules

Civ.Proc. Rule 23(a)4), 28 U.S.C.A.

8. Federal Civil Procedure 161.1

Two elements which must be present for action to fall

within class action rule are that defendants’ conduct or

refusal to act must be generally applicable to class and that

final injunctive of corresponding declaratory relief must be

requested for class. Fed.Rules Civ.Proc. Rule 23(a), (b)(2),

28 U.S.C.A.

9. Federal Civil Procedure 186.10

Where class consisting of prisoners who are or may be in

future confined in state prison was circumscribed by some

objective set of criteria, representatives were members of

that class, both size of class and its fluid, indeterminable

nature rendered joinder of individual claims impractical,

questions of law and fact in prison’s violation of prisoners’

constitutional rights were common to class, claims of class

representatives were not only typical but also actually

coextensive with that of class, representatives would fairly

and adequately protect interests of class, representatives’

attorneys had adequate resources to pursue action and

were experienced in conducting such litigation, and party

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opposing class acted on grounds generally applicable to

class thereby making appropriate final injunctive and

declaratory relief with respect to class as whole, proposed

class would be certified. ‘Fed. Rules Civ.Proc. Rule 23(a),

(b\(2), 28 U.S.C.A.

10. Constitutional Law 272(2)

Prison’s conduct adjustment board denied inmate due

process by failing to grant his request to call inmate

witnesses at disciplinary hearing without individually

examining witnesses for relative danger or benefit of their

testimony, without offering any rationale for support of

denial of request, and without providing basis for meaning-

ful judicial review to insure that inmate was protected

from arbitrary government action. U.S.C.A.Const.Amend.

14.

11. Prisons 13(8)

Inmate’s complaint of being denied lay assistance of his

choice at disciplinary hearing did not rise to constitutional

level where prison's conduct adjustment board complied

with lay assistance requirements and inmate did not

criticize ability of lay assistance provided him.

12. Civil Rights 13.13(1)

Defendant's direct personal responsibility for claimed

deprivation of constitutional right must be established in

order for liability to arise under Civil Rights Act. 42

U.S.C.A. §1983.

13. Federal Civil Procedure 1788.10

Where prison inmate failed to identify prison employee

or inmate who was responsible for preventing inmate from

seeing dentist for broken tooth for nine months, inmate’s

claim for damages under Civil Rights Act would be

dismissed. 42 U.S.C.A. §1983.

14. Prisons 13(9)

Prison officials were immune from damages for denying

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without reasons prisoner’s request for inmate witnesses to

appear at his disciplinary hearing where court opinion

clearly establishing that due process required documented

support in administrative record for decision not to permit

calling witnesses was not rendered until approximately

three years after officials had denied inmate’s request. 42

U.S.C.A. §1983.

15. Searches and Seizures 7(1)

Reasonableness under Fourth Amendment requires

balancing of need for particular search against invasion of

personal rights that search entails. U.S.C.A.Const. Amend.

4

16. Criminal Law 1213

In order to establish violation of Eighth Amendment,

plaintiff must show that prison officials intentionally

inflicted excessive or grossly severe punishment on him or

knowingly maintained conditions so harsh as to shock

general conscience. U.S.C.A. Const.Amend. 8.

17. Criminal Law 1213

Use of force by prison guards in conducting strip search

of prison inmate upon inmate’s return from outside institu-

tion was not so severe as to shock conscience and thus

violate Eighth Amendment where guards applied only

enough force to bend inmate over to view rectal area for

contraband after inmate had refused search, officers’

action was good-faith effort to maintain institutional

security, and inmate’s testimony was conflicting on

injuries. U.S.C.A.Const.Amend. 8.

18. Prisons 13(5)

Inmate’s claim of being locked in segregation without

notice of reasons failed to state claim where there was only

general uncorroborated testimony that lockups occurred

and there was no evidence identifying any of named prison

officials as actor responsible for alleged violation. 42

U.S.C.A. §1983.

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19. Prisons 13.5(1)

Prison inmate’s claim for damages based on allegation

that his transfer among various state institutions was solely

for purpose of personal harassment and punishment would

be denied where evidence showed that transfers were not

disciplinary in nature but were result of confrontations

between inmate and prison officials, and state statutes did

not restrict prison officials’ decisions to transfer inmates.

20. Civil Rights 13.12(6)

Prison inmate’s civil rights action against prison for loss

of personal property while in custody of prison official

failed to state claim where, even though official acted

under color of state law, clothing and personal effects fell

within definition of property, and loss of property

amounted to deprivation, inmate had remedy under state

Tort Claims Act to redress property loss. 42 U.S.C.A.

§1983; U.S.C.A.Const.Amend. 14; IC 34-4-15.4-1 et seq.

(1976 Ed.).

21. Criminal Law 1213

Under Eighth Amendment proscription against un-

necessary and wanton infliction of pain by deliberate in-

difference to “serious medical needs” of prisoners, medical

need is serious if it is one that has been diagnosed by

physician as mandating treatment or one that is so obvious

that even lay person would easily recognize necessity for

doctor’s attention. U.S.C.A.Const.Amend. 8.

_ See publication Words and Phrases for other

judicial constructions and definitions.

22. Criminal Law 1213

Under Eighth Amendment proscription against

unnecessary and wanton infliction of pain by deliberate in-

difference to serious medical needs of prisoners, plaintiff

must show not only that defendant was callously in-

different to his medical needs, but that those needs were

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serious, and that failure to treat them resulted in personal

injury. U.S.C.A.Const.Amend. 8.

23. Criminal Law 1213

Inmate’s Eighth Amendment claim alleging prison’s

deliberate indifference to his serious medical needs would

be denied where, even though inmate was denied medica-

tion on one occasion and had difficulty obtaining it on other

occasions, situation failed to support requisite gravity.

U.S.C.A.Const.Amend. 8.

24. Civil Rights 13.12(6)

Inmate’s claim of being denied witnesses and lay

advocate at disciplinary proceeding by his receipt of six-

month disciplinary action in mail before hearing date

failed to state claim where inmate failed to allege that any

of defendants were involved in incident and alleged wrong

had been remedied by state tribunal.

25. Prisons 4(9)

Prison inmate’s claim against prison for opening mail

from his attorney did not rise to constitutional level where

there was no evidence to indicate pattern or practice on

part of prison of opening of interfering with delivery of

legal mail and where opening of legal mail was inadvertent

or negligent.

26. Criminal Law 1213

Prison official's use of mace on inmate who was locked in

his cell was good-faith effort to restore discipline and was

not excessive or severe in Eighth Amendment sense where

use of mace was provoked by inmate’s throwing glass jars

through cell bars at official. U.S.C.A.Const.Amend. 8.

27. Criminal Law 1213

Prison inmate’s claim of use of excessive force in giving

him haircut was not so excessive or severe as to shock

conscience in violation of Eighth Amendment. U.S.C.A.

Const.Amend. 8.

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28. Prisons 17

Prison inmate’s claim of deliberate indifference to

serious medical need based on denial of use of backboard

for his back problem would be dismissed where disagree-

ment between patient and physician who considered re-

quest for backboard unnecessary did not rise to constitu-

tional level. U.S.C.A.Const. Amend. 8.

29. Criminal Law 1213

Prison inmate’s Eighth Amendment claim against

prison based on dietary practice in prison’s serving pork

three times a week which prisoner would not eat because of

his Moslem faith would be dismissed where it did not rise to

constitutional level because protein level of diet, subtract-

ing pork portion, met dietary allowances and where

inmates of Moslem faith received additional vegetable

portions on days pork was served. U.S.C.A.Const.Amend.

8.

30. Prisons 10

Prison inmate’s Eighth Amendment claim for mistreat-

ment of broken hand would be dismissed where there was

no evidence to implicate prison hospital administrators’

direct personal responsibility for inmate’s treatment by

prisoner nurse. U.S.C.A.Const.Amend. 8.

31. Prisons 10

Prison inmate’s claim of interference with his oppor-

tunity to secure lay assistance in disciplinary proceeding

would be dismissed where inmate failed to establish named

defendants’ direct personal responsibility for claimed

deprivation. U.S.C.A.Const.Amend. 8.

32. Constitutional Law 278(1.2)

Prisons 10

Prison inmate’s claim for loss of personal property would

be dismissed where no named defendant was claimed to be

responsible for seizure of any of inmate’s property and

where state law proided adequate remedy in Tort Claims

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Act; thus there was no constitutional deprivation of

property without due process of law. 42 U.S.C.A. §1983;

U.S.C.A.Const.Amend. 14; IC 34-4-16.5-1 et seq. (1976 Ed.).

33. Constitutional Law 272(2)

Denial of prison inmate’s request to call inmate witnesses

and officer who wrote conduct report to testify at

disciplinary hearing did not violate inmate’s limited pro-

cedural due process right to call witnesses where testimony

of inmates would have been repetitive and calling of officer

would have created unnecessary confrontation. U.S.C.A.

Const.Amend. 14.

34. Prisons 10

Prison inmate’s claim of deprivation of procedural due

process by being locked up for investigation without being

given reasons for lockup would be dismissed where

defendant failed to prove that any named defendant was

personally responsible for claimed deprivation and where

decision of Seventh Circuit Court of Appeals prohibiting

segregation for investigation was rendered after inmate's

lockup, remedying violations. U.S.C.A.Const.Amend. 14.

35. Federal Civil Procedure 186.10

Even though some members of class of inmates at state

prisons may have stated individual claims against specific

individuals, members’ claims were not properly before

court where members were not named plaintiffs, specific

individuals were not defendants, and it was not theory of

named plaintiffs’ case to try individual incidents as

separate claims.

36. Prisons 17

To prove individual claim of unconstitutional denial of

medical care by prison to prison inmate, it is necessary to

show either denial or unreasonably delayed access to

physician for diagnosis or treatment of discomfort-causing

ailment, or failure to provide prescribed treatment.

U.S.C.A.Const.Amend. 8.

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37. Criminal Law 1213

Prison inmate’s Eighth Amendment right to medical

care was violated where inmates had registered medical

complaints two years to five years before receiving treat-

ment, medical conditions, while not life-threatening,

involved considerable discomfort, and routine medical

complaints were exacerbated by delay in treatment and

inmate’s discomfort was prolonged. U.S.C.A.Const.

Amend. 8.

38. Criminal Law 1213

Delay in medical treatment of prison inmate for chest

pain for two days after which inmate was taken to prison

hospital und treated, although inmate never saw physician,

did not rise to level of constitutional violation of inmate’s

Eighth Amendment right to medical care. U.S.C.A.Const.

Amend. 8.

39. Criminal Law 1213

Systemwide deliberate indifference to Eighth Amend-

ment right of prison inmates to medical care can be

demonstrated by showing of pattern of individual incidents

of medical care or by pointing to systematic deficiencies in

delivery of medical care which make unnecessary

suffering inevitable. U.S.C.A.Const.Amend. 8.

40. Criminal Law 1213

Included in general Eighth Amendment principles

relating to provision of minimally adequate medical care to

prison inmates is right of mentally disturbed inmates to

receive appropriate psychiatric care. U.S.C.A.Const.

Amend. 8.

41. Prisons 17

State prison which provided three full-time licensed

physicians, five medical technicians with positions

available for four more, current medical equipment and

supplies, medical specialists, space at nearby hospital

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security ward for serious cases, comprehensive intake

physical, 96 hours of on-site dental coverage, psychologist

and part-time behavioral clinicians, position for

psychiatrist (although unfilled for two years), on-site

psychiatric unit for grossly disturbed inmates, and intake

program for screening and evaluating inmates to identify

those who require mental health care provided inmates

with minimally adequate level of health care and was not so

deficient as to show deliberate, unconstitutional

indifference to serious medical needs of inmates.

U.S.C.A.Const.Amend. 8.

42. Criminal Law 1213

Prison which maintained cells ranging in size from 37.3

to 38.3 square feet for prisoners who were confined 22 to 23

and one-half hours a day and who were not provided with

proper physical exercise and recreation violated those

prisoners’ Eighth Amendment rights. U.S.C.A.Const.

Amend. 8.

43. Prisons 17

State prison with inmate population 20% over its design

capacity was unconstitutionally overcrowded where large

number of inmates contributed to inadequate time allowed

out of cells for recreation. U.S.C.A.Const.Amend. 8.

44. Prisons 17

It is incumbent on incarcerating body to provide

individual inmates with healthy environment; necessary

corollary to this is that state must provide within such

living space reasonably adequate ventilation, sanitation,

bedding, hygienic materials and utilities; in short, shelter

must be such that it does not cause inmate’s degeneration or

threaten his mental and physical well-being. U.S.C.A.

Const.Amend. 8.

45. Prisons 17

State’s obligation to provide prison inmates with health

environment includes providing nutritionally adequate

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food that is prepared and served under conditions which do

not present immediate danger to health and well-being of

inmates who consume it. U.S.C.A.Const.Amend. 8.

46. Criminal Law 1213

Where prisoners were adequately sheltered, fed,

protected and provided with opportunities for education,

cumulative impact of conditions of incarceration from

rodent and insect infestation, leaking pipes and defective

plumbing, and overcrowding did not violate Eighth

Amendment. U.S.C.A.Const.Amend. 8.

47. Prisons 17

Lack of financing is not defense to failure to provide

minimum constitutional standards for inmates of prisons.

U.S.C.A. Const.Amend. 8.U.S.C.A.Const.Amend. 8.

William Marsh, Patricia Brown, Michael Milsap, Legal

Services Program of Northern Indiana, Inc., Indianapolis,

Ind., Edward L. Volk, Marsha Shatz, Newby, Lewis,

Kaminiski & Jones, LaPorte, Ind., for plaintiffs.

Linley E. Pearson, Atty. Gen. of State of Ind., David A.

Arthur, Sabra A. Weliever, Bruce L. Kamplain, Deputy

Attys. Gen., Indianapolis, Ind., for defendants.

MEMORANDUM OPINION, FINDINGS OF F.\CT,

CONCLUSIONS OF LAW, AND ORDER

SHARP, District Judge.

This action is a suit under 42 U.S.C. §1983 challenging

conditions of confinement at the Indiana State Prison

(hereinafter I.S.P.) at Michigan City, Indiana. The I.S.P. is

an all male maximum security correctional facility, which

has been in existence at the present location approximately

120 years. Jurisdiction is conferred by 28 U.S.C. §1343(3)

and (4).

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The Court has consolidated herein three actions, cause

numbers S 76-187, S 77-35 and S 79-32, wherein the

plaintiffs seek individual damages and injunctive and de-

claratory relief on behalf of all inmates confined at the

I.S.P. A class certification is sought and will be dealt with

herein. Specifically, plaintiffs ask that the Court find, upon

consideration of the totality of the conditions at the I.S.P.,

that those conditions violate the Eighth and Fourteenth

Amendments to the Constitution of the United States.

Plaintiffs in S 76-187 whose claims have not been dis-

missed or severed are James Odis Hendrix, Grady Thomas

Bobbitt, Melon Carroll, Donald R. Sceifers, and James

Blackburn. Each is an offender incarcerated at the Prison.

Defendants in S 76-187 are Gordon Faulkner, Commissioner,

Jack Duckworth, Warden, and Edward Jones, Director of

Classification and Treatment at the Prison.

Plaintiff in S 77-35 is Billie R. Adams, who is an offender

incarcerated at the Prison. Defendants in S 77-35 are Jack

Duckworth, J. F. Kozlowski, P. G. Youngblood, Bob

Glaney, R. Shriver, Rodney Keith, Ronald Batchelor,

Byron Glick and G. Wilkins. J.F. Kozlowski is no longer

employed at the Prison.

Plaintiffs in S 79-32 are Bruce Wellman, Dwight

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

Raymond Hurt, Richard Colvin and Stewart Brooks.

Walker, Shackelford and Colvin are offenders in-

carcerated at the Prison. Wellman, Hurt and Brooks were

previously incarcerated at the Prison. Defendants in S 79-

32 are Gordon Faulkner, Norman Hunt. Cloid L. Shuler,

Dean Nietzke, Jack Duckworth, Edward Jones, Major

Gothel D. Wilkins, Ronald Freake, M.D., Roger D. Saylors,

M.D., Captain Eugene Koziatek, Sgt. Byron Glick, Lt.

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

Officer Bill J. Kennedy, and Lt. David G. Oden. Riggs is

deceased. Saylors is no longer employed at the Prison and is

not serving the Prison under contract. Kennedy is no longer

employed at the Prison.

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In cases of this kind, this Judge is every mindful of the

limited right the federal courts have to adjudicate claims

that arise from state prison confinement. Noted opinions

have been handed down from every level of the federal

court system that advise extreme caution in adjudicating

claims that essentially involve the general administration

of a state prison and do not reach, as they must, the level of

constitutional violations. Justice Powell of the Supreme

Court of the United States set forth the reason for this

principle in striking and memorable language:

‘(TJhe problems of prisons in America are complex

and intractable, and more to the point, they are not

readily susceptible of resolution by decree. Most re-

quire expertise, comprehensive planning, and the

commitment of resources, all of which are peculiarly

within the province of the legislative and executive

branches of government. For all of those reasons,

courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.

Judicial recognition of that fact reflects no more than a

healthy sense of realism.” Procunier v. Martinez, 416

U.S. 396 at 405, 94 S.Ct. 1800 at 1807, 40 L.Ed.2d 224

(1979).

The Supreme Court of the United States has continuously

expressed its adherence to this doctrine of restraint from

undu> interference in the administration of state prisons

unless federal constitutional violations and deprivation are

clearly evident. The principle has been enunciated again

and again with a variety in the language. The dominant

thought remains clear. The most recent statement of this

settled principle is contained in Rhodes v. Chapman, ——

U.S. —__, 101 S.Ct. 2392, 69 L.Ed2d 59 (1981), stating that

courts must bear in mind that their inquires “spring from

constitutional requirements and that judicial answers to

them must reflect that fact rather than a court’s idea of how

best to operate a detention facility.” Rhodes, supra, at __.,

101 S.Ct. at 2401, citing Bell v. Wolfish, 441 U.S. 520, 539,

99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979). Federal judges

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must be circumspect not to interfere without warrant and

subject themselves to the suspicion that “it is the office of

the good judge to enlarge his jurisdiction.” 1 Works of

Thomas Jefferson 121-22 (Federal ed. 1904).

This Judge has indicated from the beginning of this case

to the present time, acomplete and utter distaste for having

to cross that Rubicon which separates the federal govern-

ment from the state government and enter into the morass

of the day to day operation of the prison.

THE PLAINTIFF CLASS

Plaintiffs have moved the Court to determine that this

action should be maintained as a class action under Rules

23(a) and 23(b\2) of the Federal Rules of Civil Procedure.

{1] A threshold requirement for class certification is

the existence of a class which requires representation.

Dolgow v. Anderson, 43 F.R.D. 472, 491 (E.D.N.Y. 1968),

summary judgment rev’d, 438 F.2d 825 (2d Cir. 1971);

Ridgeway v. International Brotherhood of Electrical

Workers, 74 F.R.D. 597, 602 (D.IIl. 1977). The class, as well

as its members, must be clearly defined and identified with

particularity. Williams v. Page, 60 F.R.D. 29, 34

(N.D.I11.1973); Inmates of Lycoming County Prison v.

Strode, 79 F.R.D. 228, 231 (M.D.pa. 1978).

The proposed class consists 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 Correction.” This type of class has

been described as “obviously definable and identifiable.”

Inmates of Lycoming County Prison v. Strode, supra. In this

context, it has further been said that:

“The use of the class action form is a desirable and

logical way to challenge prison conditions and it only

makes sense to include future inmates. See Santiago v.

City of Philadelphia, 72 F.R.D. 619 (E.D.Pa.1976);

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Miller v. Carson, 401 F.Supp. 835 (M.D.Fla.1975);

Dillard v. Pitchess, 399 F.Supp. 1225 (C.D.Cal.1975).”

Inmates of Lycoming County Prison v. Strode, supra.

[2] Each potential member of the class is not required

to be identifiable, but merely “circumscribed by some

objective set of criteria.” Ridgeway v. 1.B.E.W., supra;

Carpenter v. Davis, 424 F.2d 257 (5th Cir. 1970). Plaintiffs’

definition of the class for which certification is now being

sought clearly meets this requirement. See, generally,

Alliance to End Repression v. Rochford, 565 F.2d 975, 977-

978 (7th Cir. 1977).

[3] A second threshold requirement for class certifica-

tion is that the representatives are members of that class.

Equal Employment Opportunity Comm. v. Whirlpool

Corp., 80 F.R.D. 10, 14 (N.D.Ind.1978); Inmates of

Lycoming v. Strode, supra. This prerequisite has been

described as “the most fundamental requirement of Rule

23(a).” E.E.0.C. v. Whirlpool Corp., supra. The named

plaintiffs here are prisoners who are confined at the

Indiana State Prison, Michigan City, Indiana, in custody of

the Indiana Department of Correction. Complaint at 2 and

4 (Pars. 1 and 7), and, therefore, these representatives are

members of the proposed class.

A. The class is so numerous that joinder of all members is

impracticable.

[4] The proposed class consists of the current prisoner

population at the Prison, numbering approximately 1900

persons. The class would also include all those persons who,

in the future, are incarcerated at I.S.P., potentially

hundreds or thousands of additional class members. It is

appropriate to include future inmates in a class action

challenging prison conditions. Ahrens v. Thomas, 570 F.2d

286, 288 (8th Cir. 1978); Jnmates of Lycoming County Prison

v. Strode, supra, at 231.

[5] While numbers alone do not satisfy the numerosity

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requirement, they are a relevant consideration. In

Swanson v. American Consumer Industries, Inc., 415 F.2d

1326 (7th Cir. 1969), it was held that 151 class members was

a sufficient number to satisfy the requirement of

F.R.Civ.P. 23(a\1). Joinder of 1008 class members has also

been held to be impracticable. Hopson v. Schilling, 418

F.Supp. 1223 at 1236-1237, as it has when the class

included “hundreds of persons,” Ridgeway v. 1.B.E.W.,

supra, at 603. The inclusion within the class of persons who

will, in the future, be incarcerated at I.S.P. makes the class

even more numerous, and makes joinder of all class

members totally impracticable. It has been said that “the

term ‘impracticable’ within the meaning of Rule 23(a\1)

does not refer to impossibility but only to difficulty or

inconvenience.” Vernon J. Rockler and Co. v. Graphic

Enterprises, Inc., 52 F.R.D. 335, 339 (D.Minn.1971).

Both the size of the proposed class here and its fluid, in-

determinable nature render joinder unwise, imprudent

and impractical, the essential elements of impracticability.

3B Moore's Federal Practice, 923.05, pp. 271, 272 (1976);

Swanson v. American Consumer Industries, Inc., supra, at

1333. Therefore, a class action is the procedural vehicle of

choice in the present litigation.

B. There exist questions of law and fact common to the class.

The questions of law and fact common to the class in this

action are:

Whether the conditions, practices, and policies of the

Indiana Department of Correction and the I.S.P. deprive

plaintiffs and the class of their right to be free from cruel

and unusual punishment as guaranteed to them by the

Eighth and the Fourteenth Amendments to the Constitu-

tion of the United States;

Whether the conditions, practices and policies of the

Indiana Department of Correction and the I.S.P. deprive

plaintiffs and the class of due process of law as guaranteed

B-17

to them by the Fourteenth Amendment to the Constitution

of the United States;

Whether the conditions, practices and policies of the

Indiana Department of Correction and the I.S.P. deprive

plaintiffs and the class of their right to free speech as

guaranteed to them by the First and the Fourteenth

Amendments to the Constitution of the United States; and

Whether the conditions, practices, and policies of the

Indiana Department of Correction and the I.S.P. deprive

plaintiffs and the class of the rights to educational and

rehabilitative programs, as guaranteed to them by Article

I §18 of the Constitution of the State of Indiana and by I.C.

11-1-1.1-26 and 11-1-1.1-27 of the laws of the State of

Indiana.

A class action is particularly well-suited to this civil

rights case alleging that certain conditions, practices, and

procedures of defendants violate constitutional guarantees.

Newman v. Alabama, 349 F.Supp. 278 (M.D. Ala. 1°72),

aff'd, 503 F.2d 1320 (5th Cir. 1974), cert. den., 421 U.S. 948,

95 S.Ct. 1680, 44 L.Ed.2d 102 (1975); Bishop v. Stoneman,

508 F.2d 1224 (2d Cir. 1974); Battle v. Anderson, 376

F.Supp. 402 (E.D.Ok1.1974). Courts have unhesitatingly

certified classes when confronted with similar problems

involving prisoners. Jackson v. Bishop, 404 F.2d 571 (8th

Cir. 1968): Johnson v. Rockefeller, 58 F.R.D. 42

(S.D.N.Y.1973); Washington v. Lee, 263 F.Supp. 327

(M.D.Ala. 1966), aff'd sub nom., Lee v. Washington, 390 U.S.

333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); Inmates of Attica

Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir.

1971).

C. The claims of the class representatives are typical of the

claims of the class.

The named plaintiffs have alleged deprivation of this

statutory and constitutional rights by operation of

challenged policies, practices and conditions of defendants.

B-18

All of the named plaintiffs have an interest not only typical

of but actually coextensive with that of the class. Each and

every inmate of I.S.P. has an identical interest in seeing

that the defendants are required to operate the I.S.P. so as

not to deprive them of the rights guaranteed to them by the

First, Eighth, and Fourteenth Amendments to the

Constitution of the United States. The claims of the

representative parties and those of the class are based upon

alleged violations of these same constitutional provisions.

D. The class representative will fairly and adequately

protect the interests of the class.

[6] Thestandard for adequacy of representatives under

Rule 23(a)4) is that the representatives must be of such a

character as to assure the vigorous protection of the action

so that the absent class members rights are certain to be

protected. Hohmann v. Packard Instrument Co., 399 F.2d

711 (7th Cir. 1968).

The first requirement is plainly met in this case. Named

plaintiffs’ interests in securing their statutory and

constitutional rights is co-extensive with the similar

interests of all class members. Secondly, the named

plaintiffs have a vital personal stake in the outcome of the

case so as to insure zealous pursuit of the action. Rodriquez

v. Swank, 318 F.Supp. 289 (N.D.II1.1970), aff'd, 403 U.S.

901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971).

[7] The second element of adequate representation is

that the named plaintiffs’ counsel by sufficiently competent

to conduct the proposed litigation. Sullivan v. Chase Invest-

ment Services, Inc., 79 F.R.D. 246 (N.D.Cal. 1978); Jenson v.

Continental Financial Corp., 404 F.Supp. 806 (D.Minn.

1975). Plaintiffs are represented by attorneys from Legal

Services Organization of Indiana, Inc., and Legal Services

Program of Northern Indiana, Inc., both being legal

services programs which have extensive experience in

prison law and in protecting the rights of group litigants.

Legal Services Organization has adequate resources

B-19

available to fully pursue this action. The attorneys who are

counsel of record in this case are experienced in conducting

litigation of this type. Thus, plaintiffs’ counsel has the

experience and the resources to protect and forward the

interests of not only the named plaintiffs but also each

member of the class.

THE PRESENT CASE FALLS WITHIN THE CATE-

GORY OF CLASS ACTIONSIN WHICH THE PARTY

OPPOSING THE CLASS HAS ACTED OR FAILED

TO ACT ON GROUNDS GENERALLY APPLICABLE

TO THE CLASS, THEREBY MAKING APPRO-

PRIATE FINAL INJUNCTIVE AND DECLARATORY

RELIEF WITH RESPECT TO THE CLASS AS A

WHOLE.

[8] In addition to satisfying the requirements of Rule

23(a), the present actions falls within the criteria of Rule

23(b)(2). The Notes of the Advisory Committee, 39 F.R.D. 69,

102 (1976), suggest that subsection 23(b)(2) is uniquely

suited to civil rights actions to redress constitutional

deprivations of large classes of persons. See also, Fujishima

v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1972);

Inmates of Lycoming County Prison v. Strode, supra, at 234;

Hopson v. Schilling, supra, at 234; Hopson v. Schilling,

supra, at 1237; Diron v. Quern, 76 F.R.D. 617 (N.D.IIL.

1977). These are two elements which must be present for an

action to fall within 23(b)2): “the defendants’ conduct or

refusal to act must be ‘generally applicable’ to the class”;

and, “final injunctive or corresponding declaratory relief

must be requested for the class.” Kornbluh v. Stearns &

Foster Co., 73 F.R.D. 307, 310. Both elements are met in the

instant case.

[9] As has been previously set out in this memorandum,

all class members in this case are being subjected to the

conditions, policies and practices about which the named

plaintiffs complain. In that light, it is clear that class relief

would be the appropriate vehicle for resolution of this

action, since the conditions, policies and practices will

B-20

continue to apply to those who do not come within the scope

of any final order.

Since the constitutional violations complained of herein

are based on practices, policies and conditions applicable to

each and every member of the class, declaratory and

injunctive relief with respect to the class as a whole may be

appropriate. Therefore, the proposed class is certified

pursuant to F.R.Civ.P. 23(a) and 23(b\2).

Il.

INDIVIDUAL PLAINTIFFS’ CLAIMS

A. Bruce Wellman

Plaintiff Wellman was incarcerated at the I.S.P. from

October 1976 to June 8, 1979. Approximately seven months

of this period was spent outside the institution on court

order. At the time of trial Wellman was not an inmate at the

I.S.P. Wellman’s deposition was introduced into evidence

and his claim is based on evidence found in that C2position.

Plaintiff Wellman first condents that he was denied due

process before the Conduct Adjustment Board (hereinafter

C.A.B.), when they denied his request to have witnesses

appear on his behalf and refused him the lay advocate of his

choice. Plaintiff Wellman had requested that Albert

Cornell be permitted to represent him but the C.A.B.

provided inmate Arthur Wilson as lay advocate.

{10} The uncontradicted evidence is that Wellman

appeared before the C.A.B. in December 1977 and asked

that he be allowed to call three witnesses, all inmates. This

request was denied without comment. Plaintiff Wellman

contends this denial of his right to call witnesses violated

procedural due process as required by Wolff v. McDonnell,

418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Wolff, supra, recognized that prison inmates are entitled

to a degree of the protections afforded by the due process

B-21

clause in prison disciplinary proceedings. ld. at 555-556, 94

S.Ct. at 2974. The Supreme Court stated therein:

We are also of the opinion that the inmate facing

disciplinary proceedings should be allowed to call

witnesses and present documentary evidence in his

defense when permitting him to do so will not be

unduly hazardous to institutional safety or correc-

tional goals. Ordinarily, the right to present evidence

is basic to a fair hearing; but the restricted right to call

witnesses from the prison population carries obvious

potential for disruption and for interference with the

swift punishment that in individual cases may be

essential to carrying out the correctional program of

the institution. We should not be too ready to exercise

oversight and put aside the judgment of prison

administrators. It may be that an individual

threatened with serious sanctions would normally be

entitled to present witnesses and relevant documentary

evidence; but here we must balance the inmate’s

interest in avoiding loss of good time against the needs

of the prison, and some amount of flexibility and

accommodation is required. Prison officials must have

the necessary discretion to keep the hearing within

reasonable limits and to refuse to call witnesses that

may create a risk of reprisal or undermine authority,

as well as to limit access to other inmates to collect

statements or to compile other documentary evidence.

Although we do not prescribe it, it would be useful for

the Committee to state its reason for refusing to call a

witness, whether it be for irrelevance, lack of

necessity, or the hazards presented in individual cases.

Wolff, supra, at 565-566, 94 S.Ct. at 2979.

The Seventh Circuit Court of Appeals has addressed the

limited right of inmates to call witnesses at disciplinary

hearings. See Hayes v. Walker, 555 F.2d 625(7th Cir. 1977)

(hereinafter Hayes J). In Hayes J, the Courtof Appeals held

that the district court erroneously dismissed the witness

denial portion of Hayes’ complaint because the record

B-22

before the court did not permit “even limited review” of the

disciplinary committee’s decision. The court stated:

The Institutional Adjustment Committee offered in

justification of its action only broad conclusory

findings of possible hazard both to potential witnesses

and to institutional security which applied to all of the

proposed witnesses on plaintiff's list. There is no

indication in the record that the Institutional Adjust-

ment Committee examined each proposed witness for

the relative benefit or danger in his testimony.

Similarly, this court cannot determine whether the

broad conclusion applicable to all of the witnesses was

improper as to individual witnesses. Since the record

is barren of support for these broad conclusions, we

find that the case must be returned to the district court

for a determination of whether the Institutional

Adjustment Committee’s decision was a proper

exercise of discretion. We are not requiring that a

statement of reasons be given to support the denial ofa

request for witnesses. We hold only that some support

for the denial of a request for witnesses appear in the

record. Hayes I, supra, at 630 (emphasis added)

The Court of Appeals in Hayes ] reversed and remanded

the cause to the district court to determine if the complete

administrative record justified the decision not to call

witnesses. At trial the district court heard testimony from

the Institutional Adjustment Committee members as to

their basis for reaching their decision on Hayes’ request for

witnesses. This testimony formed the basis for the district

court’s decision that the Committee’s denial of Hayes’

request for witnesses was a proper exercise of discretion.

The Court of Appeals, however, reversed this decision in

Hayes v. Thompson, 637 F.2d 483 (7th Cir. 1980)

(hereinafter Hayes JJ.) The court stated:

Although it may be relevant to other issues in this case,

it is clear that under Hayes 7] this subsequent

testimony may not be considered in reviewing the

Committee’s decision. The requirement of support in

B-23

the administrative record is central to the effectiveness

of judicial review in insuring that a prisoner has not be

subjected to arbitrary action by prison officials. If sub-

sequent testimony is allowed to substitute for support

in the record, the Court can no longer assure itself that

the Committee made a reasoned, well-founded

decision. Such post-hoc rationalizations are to be

viewed with suspicion, and are not a proper basis for

meaningful judicial review. Support in the adminis-

trative record is necessary to protect the prisoner from

arbitrary official action, and is a minimum require-

=e due process. Hayes II, supra, at 488. (emphasis

)

The Court then concluded that the broad conclusory

findings of the Committee in denying the request for

witnesses were not adequate to allow judicial review.

Therefore, the denial constituted an abridgement of Hayes’

due process rights.

Here the conclusions must be the same. There is no

evidence that plaintiff Wellman’s proposed witnesses were

examined individually for the relative danger or benefit of

their testimony. Nor is there any support in the record for

the denial of Wellman’s request for witnesses. There is only

a blank denial, barren of any rationale for support. This

record provides no basis for meaningful judicial review so

as to insure that a prisoner is protected from arbitrary

government action. Hayes IJ, supra, at 488; Bono v. Saxbe,

620 F.2d 609, 619(7th Cir. 1980). Therefore, the Court must

conclude that the denial of Wellman’s request for witnesses

violated his due process rights.

This circuit in Bono, supra, at 619, approved the district

court’s order which required the hearing officer to

document his reasons for not calling witnesses or intro-

ducing documentary information. The district court

required in Bono v. Saxbe, 462 F.Supp. 146 (E.D.IIl.1978),

that:

© An inmate will be permitted to have witnesses appear

and to present documentary evidence, provided that

B-24

calling of witnesses or disclosure of documentary

evidence would not jeopardize or threaten institutional

security or individual safety, and further provided

that the witnesses are available at the institution

where the hearing is being conducted. The evidence

must be material and relevant to the issue... Where a

witness is not available within the institution, nor per-

mitted to appear, the inmate may submit a written

statement by that witness. The hearing administrator

shall, upon the inmate’s request, postpone the hearing

to permit the obtaining of written statements.

Repetitive witnesses need not be called. Reasons for

declining to permit a witness or documentation shall

be documented. Id., at 150.

The circuit court further explained in Hayes // that the

prison disciplinary committee must examine each

proposed witness for the relative benefit or danger of his

testimony. Hayes II, supra, at 486.

The defendants shall comply with these aforementioned

guidelines enunciated by the Court of Aypeals in regard to

an inmate’s right to call witnesses at a disciplinary hearing.

Further, the conduct report at issue here shall be stricken

from plaintiff Wellman’s institutional packet regardless of

where he is incarcerated.

{11] Plaintiff Wellman secondly complains that he was

denied the lay assistant of his choice at the displinary

hearing. The Supreme Court in Wolff, supra, 418 U.S. at

570, 94 S.Ct. at 2981, stated that: [an inmate], “should be

free to seek the aid of a fellow inmate, or if that is forbidden,

to have adequate substitute aid in the form of help from the

staff or from a sufficiently competent inmate designated by

the staff”. Plaintiff Wellman has not criticized the ability of

the lay advocate provided him in any way. Rather, he

complains of not getting the advocate of his choice. This

does not rise to a constitutional level because the C.A.B.

fully complied with the requirements of Wolff in regard to

lay assistance. This allegation is therefore without merit.

B-25

Plaintiff Wellman’s third complaint is that in January

1978 he broke a tooth on a rock in the beans at the prison

dining hall. Wellman allegedly asked to see the dentist a

number of times but was told by an unnamed source that

lockup people did not go to the hospital and to put aspirin in

the tooth. Then nine months after the injury Wellman

claims to have paid an inmate clerk three boxes of

cigarettes for an appointment with the dentist. He saw the

dentist immediately. This evidence was elicited by the

defendant's own attorney and stands uncontradicted.

[12] However, plaintiff Wellman’s proof on this issue

lacks a critical element. There is no identified actor in this

chain of events, neither guard, nor doctor or dentist, nor

prison administrator, nor inmate. Plaintiff Wellman here

seeks damages. A defendant’s direct personal responsibility

for the claimed deprivation of a constitutional right must

be established in order for liability to arise under 42 U.S.C.

§1983. Stringer v. Rowe, 616 F.2d 993, 1000-1001 (7th Cir.

1980); Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971). Nor

is this a situation where a pro se pleading is being

considered. See, Haines v. Kerner, 404 U.S. 519, 92 S.Ct.

594, 30 L.Ed.2d 652 (1972); Duncan v. Duckworth, 644 F.2d

653 (7th Cir. 1981). Plaintiff Wellman was represented by

able trial counsel who had named 17 defendants at the time

of trial. Not one of those defendants is even mentioned in

Wellman’s testimony; in fact, no individual is ever named

or described.

[13] The trial of a lawsuit is the main event, the arena

where the evidence must be put on. This Court heard one

hundred and eleven witnesses and no one testified as to who

the participants were in this scenario. The claim, if true,

may state a claim under Estelle v. Gamble, 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976), but plaintiff Wellman,

with able counsel, has failed to put on any proof showing

that any of the defendants were in any way personally

responsible for the delay in his treatment. Therefore, the

B-26

defendant has failed to prove his claimed denial of medical

treatment and it is accordingly dismissed.

{14] Finally, the prison officials contend they acted in

good faith on a belief that their actions conformed to the

procedural requirements of Wolff, supra, and they should

therefore be immune from damages. The Supreme Court

has recognized a qualified good-faith immunity for state

prison officials acting within the scope of their official

responsibilities when damages are sought for constitu-

tional violations under 42 U.S.C. §1983. Procunier v.

Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978).

Accord, Knell v. Bensinger, 522 F.2d 720 (7th Cir. 1975). In

Navarette, a state prisoner brought a §1983 action against

prison officials charging wrongful interference with his

outgoing mail, a violation of his First Amendment rights.

The Supreme Court held that the qualified immunity it had

outlined for school officials in Wood v. Strickland, 420 U.S.

308, 95 S.Ct. 992, 43 L.Ed2d 214 (1975), was applicable to

state prison officials as well. The test enunciated in

Navarette consists of two parts:

Under the first part of the Wood v. Strickland rule, the

immunity defense would be unavailing to [the prison

officials] if the constitutional right allegedly infringed

by them was clearly established at the time of their

challenged conduct, if they knew or should have

known of that right and if they knew or should have

known that their conduct violated the constitutional

norm.

[T]he second branch of the Wood v. Strickland

standard...would authorize liability where the

official has acted with “malicious intention” to deprive

the plaintiff of a constitutional right or to cause him

“other injury.” Navarette, 434 U.S. at 562, 566, 98 S.Ct.

at 862, quoted in Chapman v. Pickett, 586 F.2d 22, 25

(7th Cir. 1978).

It is this two-pronged test which we apply here.

B-27

This denial of witnesses occurred in December 1977. The

Wolff decision provided only that a request for witnesses

may be denied if it will be unduly hazardous to institutional

safety or correctional goals. Wolff, supra, 418 U.S. at 565,

94 S.Ct. at 2979. Not until this circuit decided Hayes J] in

December 1980 and Bono v. Saxbe in April 1980 was it

“clearly established” that due process required documented

support in the administrative record for a decision not to

call witnesses. Thus, these defendants could not have

reasonably known that Wolff could be read to require an

administrative record more specific than the reasons -

enumerated in the Wolff decision. Therefore, the

defendants are immune from damages for their denial of

the witness request.

B. Dwight Walker

Plaintiff Walker has been incarcerated at the I.S.P. for

seven years. He has raised two separate individual claims

for damages. First, plaintiff Walker contends that exces-

sive force was used to effectuate a strip search of his person,

and second, that during his incarceration he was placed in

segregation units without any notice as to why he was being

locked up.

In December 1978 plaintiff Walker was summoned to

testify in a criminal matter in Pulaski County, Indiana.

Captain Koziatek informed Walker that he would have to

be strip searched before leaving the prison. Walker refused

to be strip searched and was warned he would have a

conduct report if he did not comply. Walker still refused to

submit to the search. On his return to the prison Walker

was taken to I.D.U. lockup unit by Lt. Oden. Walker was

then asked to step out of his clothes for a strip search and he

did so. Lt. Oden then ordered Walker to stick his finger in

his mouth, lift his genitals, and bend over and spread his

buttocks for a visual rectal inspection. Walker refused to

submit to this portion of the search. Lt. Oden then grabbed

Walker around his neck and Officer Kennedy grabbed

Walker’s arm and twisted it up behind his back in an

B-28

attempt to bend Walker over to subject him to the visual

cavity search. Plaintiff Walker contends that Sergeant

Riggs (deceased at the time of trial) rammed him with his

knees in this altercation. Lt. Oden testified that Sgt. Riggs

was about six feet away from Walker making the visual

examination of the rectal area. It is extremely convenient

that the person alleged to have used the most force, Sgt.

Riggg, is unable to testify on his own behalf. Nor is this

claim supported by any witness other than the plaintiff.

For those reasons this Court discredits this allegation

against Sgt. Riggs that he struck Walker with his knee.

Plaintiff Walker further contends that the force employed

was so excessive as to cause him personal injury. The

uncontradicted facts establish that all inmates when

returning from outside the institution are strip searched.

[15] The Supreme Court of the United States

addressed the issue of strip searching inmates with the

visual inspection of body cavities in Bell v. Wolfish, 441 U.S.

520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1978). The

court recognized that these searches were necessary not

only to discover but also deter the smuggling of weapons,

drugs, and other contraband into a prison. In Wolfish, the

court concluded that strip searches, including the exposure

of body cavities for visual inspection, did not violate the

Fourth Amendment prohibition against unreasonable

searches. /d., at 558, 99 S.Ct., at 1884. However, the court

went on to say that the searches must be conducted in a

reasonable manner. Reasonableness under the Fourth

Amendment requires a balancing of the need for the

particular search against the invasion of personal rights

that the search entails. Wolfish, supra, at 558, 99 S.Ct., at

1884.

The evidence here indicates that the smuggling of

contraband is a serious problem in this institution, just as it

is in other correctional facilities. See, e.g., Daughtery v.

Harris, 476 F.2d 292 (10th Cir.), cert. den., 414 U.S. 872, 94

S.Ct. 112, 38 L.Ed.2d 91 (1973). The Supreme Court, in

B-29

balancing this institutional interest in security against the

privacy interest of the inmates, determined that such a

search was constitutional.

The question here is whether the force used to administer

this search was so excessive as to become actionable under

§1983. See Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert.

den. sub. nom., Employee-Officer John v. Johnson, 414 U.S.

1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Johnson, supra,

clearly establishes that prison officials violate due process

upon making an unprovoked attack on a pretrial detainee.

Id., at 1033; Lock v. Jenkins, 641 F.2d 488, 495 (7th Cir.

1981). Judge Friendly, speaking for the court in Johnson,

provided this structure for analysis:

Although “the least touching of another in anger is a

battery,” [citation omitted], it is not in violation of a

constitutional right actionable under 42 U.S.C. §1983.

The management by a few guards of large number of

prisoners, not usually the most gentle or tractable of

men and women, may require and justify the occa-

sional use of a degree of intentional force. Not every

push or shove, even if it may later seem unnecessary in

the peace of a judge's chambers, violates a prisoner's

constitutionai rights. In determining whether the

constitutional line has been crossed, a court must look

to such factors as the need for the application of force,

the relationship between the need and the amount of

force that was used, the extent of injury inflicted, and

whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.

Johnson, supra, at 1033. [emphasis added]

[16] The Seventh Circuit has applied this same analytic

framework to the treatment of convicted persons which

thus invoked the Eighth Amendment rather than the Due

Process Clause. Stringer v. Rowe, 616 F.2d 993, 998-999 (7th

Cir. 1980); Lock, supra, at 496, n.13. In order to establish a

violation of the Eighth Amendment, a plaintiff must show

that prison officials intentionally inflicted excessive or

B-30

grossly severe punishment on him or knowingly main-

tained conditions so harsh as to shock the general

conscience. Stringer, supra, at 998; United States ex rel.

Miller v. Twomey, 479 F.2d 701, 719-2 (7th Cir. 1973), cert.

den. sub nom. Gutierrez v. Dept. of Public Safety, 414 U.S.

1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974). The essential

question then becomes whether this use of a force

constituted cruel and unusual punishment. Stringer,

supra, at 999; see also, Meredith v. Arizona, 523 F.2d 481

(9th Cir. 1975).

{17] This Court is well aware of the demanding and

often dangerous position of prison guards in the institu-

tional society. Here the guards, when faced with a recalci-

trant inmate, applied physical force. They laid hands on

plaintiff Walker but there is no claim of the use of gas,

mace, fists, or clubs. In this situation where Walker had

been outside the institution, possibly unsupervised at

times, the strip search becomes a necessity. To allow the

inmate to thwart the rectal inspection by mere refusal

would be to provide a conduct for contraband. Legion are

the cases in which inmates have attempted to smuggle

contraband into an institution by concealing it in body

cavities. See, e.g., United States v. Ferraro, 590 F.2d 335

(6th Cir. 1978); United States v. Park, 521 F.2d 1381 (9th

Cir. 1975). Here the officers applied only enough force to

bend Walker over to view his rectal area. This was a good

faith effort to maintain institutional security. And

although Walker claims he was injured, his testimony is

conflicting. At one point he complains of a back injury and

at another it is a neck injury. However, on January 3, 1981

he registered no complaint about his back or neck, instead

he complained of his thumb. Accordingly, his hand was x-

rayed on January 5, 1981 and shown to be normal. In light

of these considerations the Court must find that the force

used in conducting this involuntary visual rectal inspection

was not excessive. It was not so severe or excessive as to

shock the conscience in violation of the Eight Amendment.

B-31

In fact, it was reasonable under the circumstances. There-

fore, this claim is without merit.

[18] Plaintiff Walker’s second claim is that he was

locked up in segregation on several occasions without any

notice as to why he was being locked up. Walker testified he

had been locked up without a hearing in March or April of

1975, and periodically through the years of 1977, 1978 and

1979. His contention is that he never received notice within

24 hours as to why he was locked up. Further, plaintiff

Walker alleges he was denied the right to consult with his

lay advocate in January 1979 until the day of the hearing.

Walker also contends Acting C.A.B. Chairman Penfold

gave him 60 days in lockup after he was found not guilty of

all charges because “he had to be guilty of something”. (R.

139). Unfortunately, Mr. Penfold is not a defendant in any

of these consolidated actions. Finally, plaintiff Walker

contends he was put on administrative segregation status

on April 4, 1978 without any notice as to the reason for it.

and, he was subsequently released from A.S. without

signing a conduct contract.

This Court is aware that inmates often feel they are

moved about by hidden forces beyond their control. How-

ever, to establish liability for any of these alleged

procedural due process violations evidence which at least

implicates any defendant is required. That evidence is

lacking here. There is only general uncorroborated

testimony that these lockups occurred. Yet no specific actor

is ever named as responsible. This portion of plaintiff

Walker’s claims suffers the same failure of specific proof as

plaintiff Wellman’s allegation of denial of medical treat-

ment. The Court refers to and incorporates by reference

that analysis here. There is no evidence identifying any of

the named defendants as the actor responsible for any part

of ths alleged violation. Therefore, these allegations must

fail for lack of proof under Adams v. Pate, supra, at 108.

B-32

C. Achebe Habib Lateef

[19] Plaintiff Lateef is currently an inmate at the L.S.P.

and was first incarcerated there on September 5, 1975. He

was assigned to a job in the I.S.P. library in 1975 and was

employed there continuously until June 27, 1980. The

library was considered to be a desirable place to work. On

June 27, 1980 plaintiff Lateef was transferred from the

I.S.P. to the Indiana Reformatory. This was the first ina

series of four institutional transfers for Lateef in a four

month period. Plaintiff Lateef contends that this series of

transfers were solely for the purpose of personal harass-

ment.

Plaintiff Lateef was transferred to the Indiana Reforma-

tory on June 27, 1980. On that date he received a notice from

the Director of Classification informing him that effective

immediately he was being transferred to the reformatory

where he would enter the general population. The notice

stated that this was an administrative transfer in Lateef’s

best interest as well as that of the institution and that this

was not a disciplinary transfer. Lateef was confined at the

Indiana Reformatory from June 27, 1980 until August 12,

1980 at which time he was transferred to the Indiana

Department of Correction’s Reception and Diagnostic

Center.

At the Reception and Diagnostic Center plaintiff Lateef

was interviewed by a psychologist on one occasion for about

an hour and the classification director a number of times.

Lateef did not undergo any tests. On September 3, 1980,

after approximately 21 days at the Reception and

Diagnostic Center, plaintiff Lateef was transferred back to

the Indiana Reformatory where he was assigned to the

general population.Then on October 29, 1980 Lateef was re-

turned to the I.S.P. and assigned to the N.S.B. lockup unit.

Plaintiff Lateef contends that this series of transfers

were for the purpose of harassment and retailiation. As a

result of these transfers Lateef alleges as damages that his

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contacts outside the prison have been disrupted, that he lost

property, including clothing and books, and that he

developed assorted medical conditions.

On November 17, 1980, plaintiff Lateef was advised by

the I.S.P. Classification Committee that unless he signed a

behavior modification contract he would be placed on

indefinite administrative segregation and confined to a

lockup unit. Lateef, (Tr. 70). At the hearing of the

Classification Committee on November 17, 1980, the

committee gave plaintiff Lateef several reasons why he was

being assigned to administrative segregation. The contract

which was proposed to plaintiff Lateef would have

required that he work in the soap shop for approximately a

year, he not receive a conduct report for 12 months, he be

denied evening recreation for a period of six months, and

other miscellaneous restrictions. The job in the soap shop

which was required by the behavior modification contract

was not as desirable a job as plaintiff Lateef held in the

prison library prior to his transfer to the Indiana Reforma-

tory and plaintiff Lateef considered it to be a form of

punishment.

At this meeting of the Classification Committee on

November 17, 1980, plaintiff Lateef was presented with a

memorandum from the Director of Classification outlining

the reasons why he believed a behavior contract was

appropriate. This document referred to Lateef’s involve-

ment in the takeover of C cell house in April 1980, which

included the taking of hostages and his involvement with

the planning of a work stoppage while at the Indiana

Reformatory. This later incident was the stated reason for

Lateef’s transfer back to the I.S.P. Based on this past

conduct, the Director of Classification determined that

Lateef’s behavior needed modification and recommended

this contract in population. Plaintiff Lateef refused this

contract and has remained in N.S.B. lockup or administra-

tive segregation. On N.S.B. lockup Lateef is confined to his

B-34

cell 22 hours a day and allowed out two hours a day for

recreation in the walkway in front of the cells.

The Executive Director of Adult Authority, Indiana

Department of Corrections, Mr. Schuler, testified that he

was aware of the reasons for the transfers of plaintiff

Lateef. This testimony essentially expands the written

reasons provided to Lateef, particularly in regard to the

takeover of C cell house and the work stoppage at the

Indiana Reformatory. Additionally, Mr. Schuler was

briefed in regard to the previous conduct of Lateef while

incarcerated prior to these transfers. Further, Mr. Schuler

received a report from the Reception and Diagnostic

Center after Lateef's evaluation, that there was no

assistance they could provide there. And finally, Schuler

testified that no prisoner had ever been sent to the

Diagnostic Center to punish or harass him.

The threshold question regarding Lateef’s complaint

must be whether these transfers between institutions

within the same state infringed a liberty interest protected

by the Due Process Clause. In Meachum v. Fano, 427 U.S.

215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v.

Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976),

the Supreme Court considered the conditions that must be

present for a prisoner to be entitled to a hearing before his

transfer from one state prison to another prison within the

same state. The court “held in Meachum v. Fano, that no

due process liberty interest of a duly convicted prison

inmate is infringed when he is transferred..., whether

with or without a hearing, absent some right or justifiable

exception rooted in state law that he will not be transferred

except for misbehavior or upon occurrence of other

specified events.” Montanye, supra, at 243, 96 S.Ct. at 2547.

In adopting this standard the Seventh Circuit Court of

Appeals has recognized that a prisoner may have due

process rights as a result of entitlements created by prison

regulations and by official policies or practices. Arsberry v.

Sielaff, 586 F.2d 37, 47 (7th Cir. 1978); see also, Stringer v.

B-35

Rowe, 616 F.2d 993 (7th Cir. 1980); Anthony v. Wilkinson,

637 F.2d 1130 (7th Cir. 1980).

Critical in this anaylsis is plaintiff Lateef’s claim that

these transfers were punitive in nature. This is important

because Wolff v. McDonnell, supra, is undisturbed by

Meachum and Montanye, and disciplinary measures which

represent a change in conditions of confinement give rise to

procedural due process requirements. Thus, if Lateef could

establish that his transfer was disciplinary, he has stated a

valid claim. Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir.

1981); Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1981),

cert. den., 489 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82

(1979). However, there is no evidence of that in this case.

The transfers to other institutions were not followed by any

disciplinary punishment or loss of good time. Rather, the

transfers appear to be the result of confrontations between

Lateef and individuals in the institutions in which he was

incarcerated. The Executive Director of the Adult

Authority testified that it was their approach to remove

such individuals from the scene of the confrontation to a

neutral environment to better enable them to adjust to their

confinement. He further testified that this was one of the

principal reasons behind Lateef’s transfer and that these

transfers were not disciplinary in nature. This testimony is

fully supported by the record of Lateef’s involvement in the

takeover and hostage seizure of C cell house at the I.S.P.

Nor does the Indiana Code restrict prison officials’ deci-

sions to transfer an inmate from one institution to another

in any way. This Court can find no statutory or regulatory

creation of a right for a prisoner to serve in any particular

institution or be entitled to a hearing of any kind prior toa

transfer to another institution. Therefore, plaintiff Lateef’s

claim is without merit and is hereby denied.

(20] Plaintiff Lateef also alleges that he lost a laundry

bag full of clothing and personal items which he last saw in

the hand of defendant Officer Bill Kennedy. After losing

this property on December 15, 1977, Lateef filed a

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greivance with respect to this lost property but contends he

has not received a response to the grievance nor been

compensated for his lost property. This property is alleged

to consist of clothing, personal pictures, a picture album, a

watch, and a pair of eyeglasses. The essence of this claim is

that plaintiff Lateef has been deprived of his property

without due process of law. This evidence stands uncontra-

dicted.

The Supreme Court has recently addressed this identical

issue in Parratt v. Taylor, U.S , 101 S.Ct. 1908, 68

L.Ed.2d 420 (1981), citing with approval Bonner v.

Coughlin, 517 F.2d 311 (7th Cir. 1975), mod. en banc, 545

F.2d 565 (1976), cert. den., 435 U.S. 932, 98 S.Ct. 1507, 55

L.Ed.2d 529 (1978). In Parratt an inmate of a Nebraska

prison ordered by mail certain hobby materials. After

being delivered to the prison, the packages containing the

materials were lost when the normal procedure for receipt

of mail packages was not followed. Parratt brought a §1983

action against the prison officials to recover the value of the

hobby materials, claiming that the officials had

negligently lost the materials and thereby deprived him of

property without due process of law inviolation of the

Fourteenth Amendment. The value of the items in Parratt

was $23.50.

Accordingly, the initial inquiry in Parratt and here must

focus on two elements to a §1983 action: (1) whether the

conduct complained of was committed by a person acting

under color of state law; and (2) whether this conduct

deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.

It is unquestionable that the alleged conduct by the

corrections officer in this case satisfies the “under color of

law” requirement. Parratt, supra, at 1913. Officer

Kennedy was a state employee in a position of considerable

authority. Nor is it contended otherwise. The inquiry must

therefore turn to the second requirement.

The claim here refers to no other right, privilege or

B-37

immunity secured by the Constitution or federal laws other

than the Due Process Clause of the Fourteenth Amend-

ment. Unquestionably, Lateef’s claim satisfies three pre-

requisites of a valid due process claim: the defendant acted

under color of state law; the previously listed items fall

within the definition of property; and the alleged loss

amounted to a deprivation. However, the Supreme Court

held in Parratt that standing alone these three elements do

not establish a violation of the Fourteenth Amendment.

Parratt, supra, at 1913. The court reasoned as follows:

Although he has been deprived of property under color

of state law, the deprivation did not occur as a result of

some established state procedure. Indeed, the depriva-

tion occurred as a result of the unauthorized failure of

agents of the State to follow established state

procedures. There is no contention that the procedures

themselves are inadequate nor is there any contention

that it was practicable for the State to provide a

predeprivation hearing. Moreover the State of

Nebraska has provided respondent with the means by

which he can receive redress for the deprivation. The

State provides a remedy to persons who believe they

have suffered a tortious loss at the hands of the State.

See Neb.Rev.Stat. §81-8,209 et seg. (Reissue 1976).

Through this tort claims procedure the state hears and

pays claims of prisoners housed in its penal institu-

tions. This procedure was in existence at the time of

the loss here in question but respondent did not use it.

It is argued that the State does not adequately protect

the respondent’s interests because it provides only for

an action against the State as opposed to its individual

employees, it contains no provisions for punitive

damages, and there is no right to a trial by jury.

Although the state remedies may not provide the

respondent with all the relief which may have been

available if he could have proceeded under §1983, that

does not mean that the state remedies are not adequate

to satisfy the requirements of due process. The

remedies provided could have fully compensated the

respondent for the property loss he suffered, and we

B-38

hold that they are sufficient to satisfy the require-

ments of due process.

This analysis cited above is the proper manner to

approach a case such as this. Here a guard took the

plaintiffs personal property and while we do not know

what happened to it, we know that it was not properly pre-

served for Lateef. Likewise, the State of Indiana provides a

remedy to rederess property loss or damage inflicted by a

state officer through the Indiana Tort Claims Act, I.C. 34-4-

16.5-1 et seq. This act became effective February 19, 1974

and was therefore in effect when plaintiff Lateef’s loss

occurred. It may reasonably be concluded, therefore, that

the existence of an adequate state remedy for property

damage inflicted by a state officer avoids the conclusion

that there has been any constitutional deprivation of

property without the due process of law within the meaning

of the Fourteenth Amendment. Parratt, supra, at 1916.

For the foregoing reasons this claim is denied.

D. Raymond Hurt

Plaintiff Hurt was incarcerated at the I.S.P. from 1973

until November 1980, except for approximately six months

in 1974 when he was on parole. Plaintiff Hurt did not per-

sonally testify in this action, the evidence of his claims is

based solely on his deposition which was admitted into

evidence. Hurt was confined to N.S.B. and I.D.U. lockup

units from 1976 to April 1979. He complained that in 1976

and prior to then he received food with roaches in it. No

more specific evidence was provided and no foreign objects

had been found in his food since 1976. There is no allegation

of personal injury stemming from this evidence. It will be

further considered herein with the food services.

Plaintiff Hurt contends that approximately $300.00

worth of his personal property was lost in April 1979. The

specific items included a radio, books, and clothing. How-

ever, no defendant is named in this allegation so it must fail

for lack of proof under Adams v. Pate, supra, and the Court

refers to and incorporates here the same analysis as

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previously applied to Plaintiff Wellman’s claim for denial

of medical treatment. Further, the Court refers to and

incorporates here the analysis under Parratt, supra, as

previously applied to plaintiff Lateef’s claim for lost

personal property. In light of those aforementioned cases,

this claim is denied.

Next Hurt alleges that he was denied his medication for

asthma and had a difficult time obtaining that same

medication in the lockup units. Hurt testified that he asked

Dr. Saylors and Lt. Oden for his medication and was

informed one time that the Warden had instructed them

not to give out any medication in the lockup units. No date

was ever established for these events. Dr. Mai, one of the

staff physicians at the I.S.P., testified that sometimes there

had been a delay in receiving supplies but that it had never

interfered with the activity of the hospital. Mr. Freake, the

Hospital Administrator, also testified that there was some

delay in receiving medical supplies on orders of over

$200.00 because they required approval of the Purchasing

Department in Indianapolis. However, during these delays

any shortages were filled by Memorial Hospital without

delay. Finally, the Warden testified that he has not

attempted to influence the medical staff in the administra-

tion of any medication to any particular inmate, and, that

he has never overruled a prescription.

(21, 22] In Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.

285, 292, 50 L.Ed.2d 251 (1976), the Supreme Court held

that “deliberated indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton

infliction of pain’, Gregg v. Georgia, 428 U.S. 153, at 173, 96

S.Ct. 2909, at 2925, 49 L.Ed.2d 859 (joint opinion),

proscribed by the Eighth Amendment.” “This is true,” said

the Court, “whether the indifference is manifested by

prison doctors in their response to the prisoner’s needs or by

prison guards in intentionally denying or delaying access to

medical care or intentionally interfering with the treat-

ment once prescribed.” Jd., 429 U.S. at 104-105, 97 S.Ct. at

B-40

291. This standard is two-pronged. It requires deliberate

indifference on the part of prison officials and it requires

the prisoners medical needs to be serious. Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980); West v. Keve, 571 F.2d

158, 161 (3d Cir. 1978). A medical need is serious if it is one

that has been diagnosed by a physician as mandating treat-

ment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.

Laaman v.Helgemoe, 437 F.Supp. 269, 311 (D.N.H. 1977).

Traditionally, a plaintiff must show not only that the

defendant was callously indifferent to his medical needs,

but that those needs were serious, and that the failure to

treat them resulted in personal injury. Hampton v.

Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir.

1976).

{23} Here plaintiff Hurt alleges only that he was denied

his medication on one occasion and that he had difficulty

obtaining it on other occasions. Giving the plaintiff all

favorable inferences this one denial may constitute

deliberate indifference but the evidence of this situation

fails to support the requisite gravity. It is not every injury

or illness that invokes the constitutional protection, only

those that are serious and have that effect. Hampton, supra,

at 1081. Due to this failure of proof on the second prong of

the test, this claim must be denied.

[24] Plaintiff Hurt next alleges that on one occasion he

appeared by the C.A.B. and asked for witnesses and a lay

advocate. He was told he could have them and the case was

continued. However, before the next hearing date on this

matter, plaintiff Hurt received a six month disciplinary

action in the mail. This was prior to Hurt’s opportunity to

appear with assistance and present evidence. Inmate

Brooks, on Hurt’s request, appealed this to an Indiana State

Court which resulted in the C.A.B. dismissing the charge

altogether.

Plaintiff has not alleged that any of the defendants were

involved inthis incident or when it occurred. Nor has any

B-41

damage been alleged. In fact, by Hurt’s own admission the

alleged wrong has already been remedied by a state

tribunal. Therefore, this claim is without merit and is

accordingly denied.

[25] Plaintiff Hurt next complains that in August 1979

he received one item of legal mail which had been opened

outside of his presence. Further evidence indicated that

mail is delivered five days a week and is delivered to

inmates by 2:30 o’clock P.M., except for heavy days when

first class mail is given priority. No mail is censored and

only non-legal mail is opened to inspect for contraband.

Non-legal mail is opened by the clerk outside of the

presence of the inmate. If legal mail is suspected of having

contraband in it, it is opened in the presence of the inmate.

Legal mail is from time to time opened by accident due to

the volume of the mail or the failure of the sender toclearly

mark it as legal mail. On those occasions the legal mail is

usually hand delivered to the inmate and he is told it was

opened by mistake. The testimony of plaintiff Walker bears

this out.

The Supreme Court of the United States first addressed

the issue of censorship and regulation of inmate mail in

Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40

L.Ed.2d 224 (1974). In Procunier, supra, the court found

that prison mail regulations providing for censorship were

properly invalidated by the district court since they autho-

rized prison officials and employees to apply their own per-

sonal prejudices and opinions as standards. Then in Wolff v.

McDonnell, supra, the court held that mail between an

attorney and a client, who was an inmate, was protected by

the Sixth Amendment and could not be read by the prison

officials. Further, if such legal mail is suspected of contain-

ing contraband that mail must be opened in the presence of

the inmate. 418 U.S. at 577, 94 S.Ct. at 2985. The court also

stated that “by acceding to a rule whereby the inmate is

present when mail from attorneys is inspected [the

petitioners] have done all, and perhaps even more, than the

Constitution requires.” Jd.

B-42

The mail regulations as developed here fully comply with

these standards. What the plaintiff contends and the

defendants concede is that through inadvertence or

negligence legal mail is opened on occasion. However, the

official in charge of the mail delivery, in that situation,

takes the added precaution of individual delivery and

explanation to the inmate to assure the confidentiality of

the mail in question. This is a salutary practice which

insures confidentiality and avoids misunderstanding. At

worst, Hurt’s claim of receiving opened legal mail indicates

negligence on the part of prison officials or employees.

There is no evidence in the entire case to indicate a pattern

or practice of opening or interfering with the delivery of

legal mail. Therefore, this claim does not rise to a constitu-

tional level and it is accordingly denied.

Plaintiff Hurt next alleges that he was sitting quietly in

his cell on I.D.U. writing a letter when Officer Konkey

sprayed mace in his face. The prisoners on the cell block

were creating a disturbance at that time but Hurt contends

he was not involved. Subsequently an inmate nurse on the

unit came to Hurt’s cell and put something in his eyes,

presumably to counteract the mace.

The testimony of Officer Konkey paints quite a different

picture of the incident involving plaintiff Hurt. According

to his testimony Hurt was upstairs in his cell yelling,

screaming and disrupting the other inmates. Hurt was

asked to be quiet several! times and refused. Later the same

day, while Officer Konkey was walking past Hurt’s cell,

Hurt threw a glass jar through the bars which shattered

and cut Konkey on the hand. Konkey continued to pass out

medication and when finished came back to talk to Hurt.

When Konkey returned to Hurt’s cell, Hurt threw another

glass jar through the bars at which time Konkey used mace

on Hurt. Konkey did not use any more mace on Hurt. That

concluded the evidence in regard to this incident in 1976.

Next on May 3, 1977 plaintiff Hurt alleges he was beaten

three times. At approximately noon Hurt testified he was

B-43

in the shower area when Officers Morris and Wysong

destroyed his commissary items. When he asked the

officers why they did this, Morris allegedly took out his

handcuffs and ordered Hurt into his cell. Hurt contends he

believed Morris was going to hit him, so he swung first and

hit Wysong in the face. Then, according to Hurt, Morris

and Wysong both took out their handcuffs and chased him

to the end of the range. Hurt alleges he was caught,

knocked down, and beat with fists and handcuffs. After this

scuffle he was again ordered to go into his cell, and this time

complied.

Then approximately five minutes later, according to

Hurt, Captain Koziatek, Bachelor, Lt. McKee and several

other officers came to his cell and ordered him out, stating

that they were taking him to lockup. Hurt’s hands were

handcuffed behind his back, and he alleges that Captain

Koziatek slammed him into the wal! face first. Then when

they got on the I.D.U. elevator Hurt alleges Captain

Koziatek told him he would kill him if he hit one of his

officers again and kicked his legs out from under him and

hit him on the back of the head with handcuffs. Once at

I.D.U. Hurt alleges Koziatek said he would kill him if he

didn’t get his hair cut. Hurt responded that he wouldn't get

his hair cut because it was against his religion based upon

his Cherokee Indian ancestry. Koziatek allegedly replied

that he would get it cut and took Hurt to his cel! and started

hitting and punching him. Hurt then asked Captain

Bachelor to go to the doctor because his chest and head

hurt. Hurt was then escorted to the hospital by Officer

Sharp, hands still cuffed behind his back, and received x-

rays. Hurt was then taken back to I.D.U.

On his arrival at I.D.U. Hurt alleges there was a barber

chair sitting there, an inmate barber, and five or six

officers including Lt. McKee and Officer Sharp. An

unidentified person allegedly told Hurt he was going to get

a haircut. Hurt again refused. Officer McKee then

allegedly grabbed Hurt’s arm and Hurt kicked Officers

B-44

Sharp and McKee. Then according to Hurt, three or four

people grabbed him and slammed him into the chair. All

this time Hurt alleges there were officers twisting his legs

and arms and beating him so that he passed out. Hurt’s hair

was cut. Afterwards, Hurt alleges he was taken to his cell,

thrown on the floor on his face and was beaten on his back

and kidneys while the officers supposedly removed the

handcuffs from him. After the handcuffs were removed,

Hurt was left in his cell. Hurt contends he could hardly

walk for the next two or three days. Individuals allegedly

involved in the barber chair incident include Koziatek,

Glick, Swiger, Sharp and McKee, and two other officers

Hurt did not know. This testimony was elicited at the

deposition by defense counsel.

Captain Koziatek, a principal actor in this scenario,

testified in person at the trial of this cause. It was his testi-

mony that Hurt’s hair was below the shoulders in length

which was in violation of the Department of Correction’s

policy. The written policy at that time was that the hair not

hang lower than the top of or touch around the collar. Wear-

ing the hair up in braids or other fashion was acceptable so

long as it was sanitary. Hurt’s hair was in an unsanitary

condition, matted, tangled, and unwashed. Koziatek also

testified that he had never kicked the legs out from under

any inmate in the elevator going up to I.D.U. Finally,

Koziatek testified that he had not assaulted Hurt or ever

threatened to kill him, or threaten him in any way. Officer

Sharp also testified that he was present at the time Hurt

received his haircut and that Hurt had to be physically held

in the chair. Sharp remembered Hurt kicking one of the

officers present but had no memory of Hurt being hit or

punched in any way. Officer Swiger was also present at the

haircut, and testified essentially that Hurt was unwilling to

have his hair cut, had to be physically restrained, but did

not see Hurt hit anybody, or anyone hit Hurt.

Plaintiff Hurt, by counsel, has stated this is not a

challenge to this hair length regulation, rather it is a

B-45

challenge to the procedure used in the involuntary cutting

of Hurt’s hair. Plaintiff Hurt contends that the amount of

force used was so excessive as to be actionable under

Johnson v. Glick, supra.

This is a situation where an inmate insisted on having

hair which was maintained so as to violate the prison

regulations. The record shows that Hurt was asked and

cautioned to have his hair cut, and written up several times

because the fashion in which he maintained it violated

prison regulations. Unfortunately for all concerned

plaintiff Hurt refused to comply. Plaintiff Hurt did not

testify in person at this trial. Officers Konkey, Koziatek,

Sharp and Swiger did testify in person about these

incidents and their demeanor and bearing causes this

Court to credit their testimony.

[26] In Lock v. Jenkins, supra, the Seventh Circuit

Court of appeals adopted the position that “only in rare

circumstances would it be appropriate for tear gas to be

used to control inmates already confined in their cells.” /d.,

at 496. The amount of as used was reasonable and it was

needed under the circumstances to restore order. Under

Johnson v. Glock, supra, standards, as previously

enunciated in regard to plaintiff Walker, Officer Konkey’s

use of mace on Hurt was a reasonable application of force

used in a good faith effort to restore discipline. There is no

showing that this was excessive or severe in the Eighth

Amendment sense. The Court must conclude that this was

one of the rate instances when the use of gas against a

person locked in a cell was justified.

{27] In regard to the series of events which culminated

in piaintiff Hurt receiving a haircut, the Court notes that

neither Officer Morris or Wysong, who allegedly beat Hurt

severely, are named as defendants in this case. Therefore,

their conduct becomes extraneous because there is no

allegation or evidence that any named defendant should

have known of, knew of, or directed their conduct. The

absence of these alleged principal actors as defendants

B-46

casts doubt on the veracity of plaintiff Hurt’s story. Officer

Koziatek is a named defendant and is accused by Hurt of

numerous acts of brutality. However, witnesses at the scene

do not recall this alleged abuse by Koziatek, and the officer

denies it ever occurred. Also, plaintiff Hurt failed to

answer the question as to whether he suffered any cuts or

abrasions from these alleged beatings with metal hand-

cuffs. There is an obvious lack of documentation of any

injuries which would be concurrent with the alleged

severity of these assaults. Therefore, this Court must accept

Captain Koziatek’s version of these events. While other

assaults are alleged no individuals are named as the

perpetrators. These claims suffer from a failure to prove a

defendant’s direct personal responsibility and are there-

fore without merit. See Stringer, supra; Adams v. Pate,

supra.

In regard to the actual giving of the haircut, the allega-

tions of excessive force by unidentified officers are without

proof, and must fail for that reason. The court is sure this

was an unpleasant incident for all involved. However, the

force used throughout this incident was not so excessive or

severe so as to chock the conscience in violation of the

Eighth Amendment. Stringer, supra. In light of all the

foregoing, the Court must find that none of plaintiff Hurt’s

claims rise to the level of a constitutional violation. They

are, therefore, dismissed.

E. Richard Colvin

Plaintiff Colvin has been incarcerated at the I.S.P. from

December 1974 to the present time except for the period of

September 1979 to November 1980, during which time he

was at another institution within the Department of

Correction. Colvin lived in C Cellhouse from December

1974 through September 1979, and has lived in D Cellhouse

since his return to I.S.P. on November 4,1980. There are

two principal issues raised by plaintiff Colvin, the first

being a medical complaint and the second a dietary

complaint.

B-47

(28] Plaintiff Colvin first contends that he has a back

problem which requires a backboard. While at the I.S.P.

the plaintiff contends that he has had a backboard

approximately four and one-half years. Plaintiff also had a

backboard while he was located at the Westville Correc-

tional Center. He further alleges that his backboard was

prescribed by a physician and that since his return to the

I.S.P. he has been denied the use of a backboard. Colvin

further testified that he was told by Dr. Mai, a prison

physician that a backboard was not necessary. The Medical

Services Audit Review Committee also considered this

request for a backboard and decided that it was unneces-

sary.

Under Estelle v. Gamble, supra, as previously discussed

in regard to plaintiff Hurt, a plaintiff must show deliberate

indifference to a serious medical need. The evidence here

fails on both points. Dr. Mai and the Medical Services

Audit Review Committee considered this request for a

backboard and found it unnecessary. Nor is there any

showing of the requisite gravity. Rather, this is a disagree-

ment between the patient and the doctor over the course of

treatment. Here the doctor simply did not feel a backboard

was necessary. Such disagreement does not rise to a

constitutional level. Therefore, this claim is accordingly

dismissed.

{[29] Plaintiff Colvin’s second complaint is that he has

difficulty obtaining a pork-free diet. Colvin is of the

Moslem faith which prohibits the eating of pork. The

dietician who testified on behalf of the plaintiff found that

pork products were used generally about three times a

week. It was her conclusion that those persons not eating

pork would not be getting any proteins at their mealtimes.

The Food Service Director of the Department of Correc-

tion, Mr. Prill, testified that he makes 12 or 13 trips a year

to the I.S.P. to examine the food services. Master menus are

prepared by his office and the nutritional values calculated

for them. Then, if a substitution occurs on any particular

B-48

menu at any institution that as served menu is sent to Prill’s

office to determine the nutritional values.

Prill also testified that he was aware Moslems could not

eat pork and that it was his opinion that Moslems still re-

ceived adequate nutrition from the foods served. According

to the National Research Council on dietary allowances a

male person need only receive 56 grams of protein per day.

According to Prill, the average diet at the I.S.P. contained

100 grams of protein per day, subtacting the 41 to45grams

in the average pork serving left 55 grams of protein in that

day’s diet. Pork is only served three times a week and on

those days the inmates are allowed to receive extra portions

of vegetables.

In order to establish an Eighth Amendment violation,

plaintiffs must show either that the actions of the defendant

intentionally inflicted excessive or grossly severe punish-

ment upon them or conditions so harsh as to shock the

conscience were maintained. LaBatt v. Twomey, 513 F.2d

641 (7th Cir. 1975). There can be no doubt that the Constitu-

tion requires that diet be adequate to maintain the health of

the inmates. Campbell v. Cauthron, 623 F.2d 503, 508 (8th

Cir. 1980). However, this is not a case such as Holt v. Sarver,

300 F.Supp. 825, 832 (E.D.Ark. 1969), where the prisoners

were receiving fewer than 1000 calories a day and their

meals consisted primarily of 4-inch squares of “grue”.

Rather, this is situation where reasonable accommodations

have been made to insure that those inmates of the Moslem

faith receive adequate nutrition without eating pork. The

evidence shows that without eating the pork on those occa-

sions when it is served an inmate still receives the

recommended minimum allowance of protein for the day

and is allowed to have additional helpings of another item.

This complaint in regard to the dietary practice does not

rise to a constitutional level and is therefore dismissed.

F. Stewart Brooks

Plaintiff Brooks was incarcerated at the 1.8.P. from

September 24, 1975 to February 28, 1979. On July 27, 1977,

B-49

Brooks injured his hand in an altercation with another

prisoner. The medical treatment he received is the basis of

one of his complaints. Brooks’ second complaint arises out

of the procedures employed by the Conduct Adjustment

Board in regard to the selection of lay advocates.

{30} On July 27, 1977 when Brooks injured his hand he

was taken to the prison hospital. At the hospital an x-ray

was taken of the injured hand and a prisoner taped four

tongue depressors on the hand. Brooks was then sent back

to his cell with Tylenol capsules for pain. The next day the

hand was swollen and painful so Brooks was returned to the

prison hospital. Brooks saw the same prisoner again, an

inmate named Archie Burr, who put a cast on the hand

without any supervision. Burr testified he was instructed to

put a cast on Brooks’ hand by the written order of

physician’s assistant Kasprzak. Kasprzak is not named

herein as a defendant. Burr further testified that though

this was the first time he had ever put a cast on, it was a

common practice for prisoner nurses to apply casts to other

inmates. Brooks complains that the bones were improperly

aligned by this cast which caused the little finger of his

hand to heal sticking out to the side. Approximately six

months after the injury occurred Brooks was taken to see a

bone specialist who told him the hand had healed

improperly and would require surgery to be reset. Since

leaving the prison Brooks has not sought further treatment

of his hand. The plaintiff's witness Dr. Shansky, testified

that under no circ nistances would it be appropriate for an

untrained prisoner to set a fracture by placing a cast.

This Court is acutely sympathetic to the apparent

medical mistreatment suffered by plaintiff Brooks. It

would appear to state a claim under Estelle v. Gamble,

supro. However, Brooks fails to allege that any defendant

was involved with, or had knowledge of this course of treat-

ment ordered by physician's assistant Kasprzak. There is

no evidence to implicate Hospital Administrator Freake or

Warden Duckworth or any other named defendant.

B-50

Plaintiff Brooks has failed to prove any defendant’s direct

personal responsibility for the claimed depreviation as

required by Adams v. Pate, supra. Therefore, this claim

must be and is dismissed.

[31] Plaintiff Brooks second allegation is in regard toa

January 1979 appearance before the C.A.B. Brooks was

given a list of four prisoners’ names from which to select a

lay advocate to represent him. Brooks informed the screen-

ing officer Richard Day, that he did not want any of those

four, that there was an inmate in population whom he

wanted to represent him. The prison rule at that time was

that anyone in population was eligible to serve as a lay

advocate. Day indicated on the report that Brooks did not

want a lay advocate since he had refused the four offered.

Brooks appeared at the hearing without representation

and the C.A.B. chairman inquired about this. Brooks

explained the prior events and Day denied that it

happened. After the hearing Brooks attempted to discuss

the matter with Day. Day ordered Brooks to be quiet and

wrote him up for refusing a direct order for which Brooks

got 60 days in lockup.

The procedure of providing a list of inmates versed in the

procedures of the C.A.B. is one which finds its origin in

Wolff v. McDonnell, supra. The Supreme Court stated in

Wolff that an inmate “should be free to seek the aid of a

fellow inmate, or if that is forbidden, to have adequate

substitute aid in the form of help from the staff or from a

sufticiently competent inmate designated by the staff.” Jd.

at 570, 94 S.Ct. at 2982. The C.A.B. fully complied with this

procedure by supplying a list of inmate lay assistants

designated by the staff. This provided Brooks the requisite

opportunity to secure assistance which he chose to forgo.

However, the C.A.B. having heard Brook’s explanation

allowed him to submit written evidence on the merits of his

claim after the hearing. This procedure followed by the

C.A.B. did not violate plaintiff Brook's due process rights.

It was the conduct of Officer Day that interfered with

B-51

Brooks’ access to a lay assistant. However, Officer Day is

not a defendant in this case so this claim suffers from the

now familiar infirmity under Adams v. Pate, supra, at 108,

of failure to establish a defendant’s direct personal

responsibility for the claimed deprivation. Therefore, this

claim must be dismissed.

G. Billie R. Adams

Plaintiff Adams, the sole plaintiff in S. 77-35, has been an

inmate at the I.S.P. since October 1972 to the present. From

April 1975 to July 1978 Adams was subjected to a series of

lockups on segregation. It is these lockups he complains of

and some lost personal property and a C.A.B. procedure

regarding the calling of witnesses.

[32] Property belonging to Plaintiff Adams and

registered with the I.S.P. was seized during a shakedown

on January 28, 1977. The property seized included a tele-

vision, a guitar, leather tools and supplies, stereo head-

phone, three pair of shoes, smoking pipes, a hot pot, and

jewelry. This property was never returned. The property

was alleged seized by ten unnamed officials.

Next in September 1979, plaintiff Adams contends that

two purses, and five or six billfolds belonging to him were

confiscated by prison officials from the car of Dr. Higgins,

the I.S.P. dentist. Adams had been given permission by

Assistant Warden Cohen to have Dr. Higgins take the

leather goods to a church display and sell them. These items

were confiscated when Dr. Higgins’ car was searched in

connection with a suspicion that it was bringing

contraband into the institution. Plaintiff Adams sought the

return of his leather goods for over a year at which time

Assistant Warden Cohen ordered their return. One purse

was returned to Adams but he was informed by

Investigator Penefold that the rest of it had come up

missing.

The Court incorporates here by reference the prior lost

property analysis made in regard to plaintiff Lateef. The

B-52

Supreme Court in Parratt v. Taylor, supra, stated the

inquiry must focus on two elements of a §1983 action: (1)

whether the conduct complained of was committed by a

person acting under color of state law; and (2) whether this

conduct deprived a person of rights, privileges or

immunities secured by the Constitution or laws of the

United States. Here, these claims are deficient in both

respects. First, no individual is ever named as responsible

for the seizure of any of this property. No defendant is ever

implicated in the actual taking which resulted in the loss.

Second, the State of Indiana provides an adequate state

remedy, the Indiana Tort Claims Act, I.C. 34-4-16.5-1 et

seq., for property lost by a state officer. The availability of

this remedy avoids the conclusion that there has been any

constitutional deprivation of property without due process

of law within the meaning of the Fourteenth Amendment.

However, this Court notes with chagrin the regularlity of

such lost property claims and hopes the prison administra-

tion would address the situation. In light of the foregoing,

this claim does not rise to a constitutional level and is

dismissed.

[33] When plaintiff Adams was locked up on January

28, 1977 he was charged with possession of 14 marijuana

cigarettes and $90.00 of United States currency which was

found in a common area of his dormitory housing about 60

men. The locker in which the contraband was found was

shared by Adams with two other inmates for the storage of

property. Those two inmates did not receive conduct

reports.

At the hearing before the C.A.B. on this charge Adams

requested the testimony of four inmate witnesses,

Olsterhouse, Ware, Smith and Fetters. Ware and

Olsterhouse were the two who shared this area with Adams

and they testified at the hearing. Olsterhouse testified that

ten different inmates used the cabinet where the

contraband was found for the storage of leather goods and

that the cabinet did not havea lock on it. The C.A.B. refused

B-53

to hear testimony from inmates Smith and Fetters.

Plaintiff Adams contends Smith and Fetters would have

testified that they and other frequently used the cabinet

and that area. Adams also requested that the officer who

wrote the conduct report testify at the hearing. The C.A.B.

refused to call Officer Keith to testify. This hearing before

the C.A.B. was concluded on February 3, 1977. Adams was

found guilty of possession of contraband and sentenced to

six months on I.D.U. disciplinary lockup. He served five

months and 22 days of that sentence.

The Court refers to, and incorporates by reference here,

the prior analysis of an inmate’s right to call witnesses

under Wolff v. McDonnell, supra, and its progeny, as dis-

cussed in regard to plaintiff Wellman. The testimony of

inmates Smith and Fetters, according to what plaintiff

Adams contends they would have said, would have been

cumulative on the point that this area and cabinet were

used by a number of inmates. That fact was established by

the testimony of inmate Olsterhouse. The denial of the

request to call the officer who wrote the conduct report was

premised on a policy of not calling the officers to testify at

the hearings. The basis of this policy being to avoid an addi-

tional confrontation between the staff member and the

person that is being reported. The rationale of the C.A.B. in

denying the requests for these witnesses is drawn directly

from Wolff, supra, at 565-566, 94 S.Ct. at 2979. The testi-

mony of the two other inmates would have been repetitive

and the calling of the officer would have created an

unnecessary confrontation. This procedure did not violate

plaintiff Adams’ limited procedural due process right to

call witnesses. Therefore this claim is dismissed.

[34] Plaintiff Adams finally contends that he was

subjected to a series of lockups which failed to conform to

procedural due process requirements.

In April 1975 plaintiff Adams was confined to I.D.U., a

lockup unit at the I.S.P., for a period of 11 days for

“investigation.” When plaintiff Adams was locked up in

B-54

I.D.U. in April 1975, he was not told the reason he was

being locked up, he was not given a conduct report and he

was not given a hearing in connection with the lockup.

From August 1, 1975 until August 11, 1975, Adams was

confined to I.D.U. lockup unit for “investigation.” He was

not given ary reason for his confinement to I.D.U. on

August 1, 1975, nor was he given a hearing of any kind in

connection with the lockup and he was never told why he

was released.

Adams was again confined to I.D.U. from August 22,

1975 to August 27, 1975 for “investigation.” In connection

with the lockup on August 22, 1975, nodisciplinary charges

were filed against Adams, and he did not at any time

receive a hearing connected with the confinement.

Adams was again confined to I.D.U. for investigation on

October 15, 1975 and was confined at the N.S.B.

disciplinary lockup unit until October 31, 1975. When

Adams was locked up on October 15, 1975, he was told only

that it was for “investigation,” and was given no other

reason for the lockup.

About ten days after being locked up, Adams was givena

conduct report charging him with possession of marijuana

because two seeds and some flakes of marijuana were found

in an envelope belonging to Adams in the electric shop

where he was employed. At a hearing before the C.A.B. in

connection with the charge of possession of marijuana, the

charge was dismissed. Adams then submitted to the chair-

man of the C.A.B. a request that the charge of possession of

marijuana which had been dismissed be expunged from his

packet. Sgt. Kozlowski advised Adams that the dismissed

charge would not be removed from his packet and some

time later, Adams’ counselor told him that it was still there.

At the time Adams testified in the trial of this action on

January 6, 1981, the charge of possession of marijuana

which had been dismissed by the C.A.B. in October of 1975

still appeared in his packet. On February 4, 1981, Warden

Duckworth removed from the packet of Adams the conduct

B-55

report charging him with possession of marijuana which

had been dismissed by the C.A.B. in October 1975.

Adams was again locked up on I.D.U. on April 8, 1976

and was confined on I.D.U. until June 6, 1976. Adams was

told only that he was being held for investigation and was

not given any other reason for his confinement until he was

given a conduct report about three weeks after he had been

locked up on I.D.U. on April 8, 1976. The:conduct report

charged Adams with violation of institutional rules

because a package mailed to him from Tandy Leather Co.

in Florida contained marijuana. Following the filing of the

conduct report, Adams was given a hearing on the charges

and they were dismissed.

Adams was again locked up on January 28, 1977

pursuant to a conduct report. The lockup on January 28,

1977 was the seventh time Adams had been locked up ina

disciplinary isolation unit in a period of 21 months but this

was the first occasion on which he had received a conduct

report prior to the time he was locked up. Prior to the

lockup on January 28, 1977 Adams had never been found by

the C.A.B. to have violated the rules of the institution. Here

Adams received a hearing before the C.A.B. on the charge

of possesion of contraband and was sentenced to six months

on I.D.U. disciplinary lockup.

Adams was again locked up for investigation on June 29,

1978, for a period of 13 days in B Seclusion. At the time he

was locked up Adams was not served with a conduct report

and was told that he was being locked up for investigation.

During the time he was locked up Adams was served witha

conduct report charging him with possession of narcotic

paraphernalia, specifically an alligator clip. The alligator

clip was found in a box of junk in Adams’ cell by officers

who were cleaning out his cell following Adams’ lockup for

investigation on June 29, 1978. The possession of the

alligator clip was not discovered until after Adams was

locked up. At no time did Adams receive a hearing in

B-56

connection with the lockup on June 19, 1978, and the

conduct report was ultimately dismissed.

In only one of these instances were disciplinary charges

filed against plaintiff Adams. On every other occasion

Adams was locked up for investigation he was not given

any reason for his confinement, he was not given any kind of

hearing in connection with the lockup, nor was he told why

he was being released. Each of these six incidents set forth

a violation of Wolff v. McDonnell, supra. Specifically,

plaintiff Adams was not given any reason for his lockupora

hearing. Adams seeks damages for this confinement

without the benefit of due process.

However, as disturbing as it is to the Court, plaintiff

Adams has failed to named or even implicate one of the

defendants as being responsible for these deprivations.

Adams testimony reveals a series of lockups but never

names an actor as responsible. Rather, Adams contends

only that this was a pattern of harassment perpetrated

upon him by the defendants and institution.

The defendants contend only that no inmate has been

locked up on a general charge of investigation since mid-

1980. This would coincide with the decision of the Seventh

Circuit Court of Appeals in Sargeant v. Jenkins, 631 F.2d

734, an unpublished order which this Court took judicial

notice of during this trial. In Sargeant, this Court granted

summary judgment for the defendants at the district court

level. The Seventh Circuit then held that segregation due to

“investigation” provided insufficient notice of the reason

why the inmate was being locked up. The Court of Appeals

went on to note that the prison rules provided the precise

safeguards that were missing from the actual practice. The

Seventh Circuit declined, however, to order a mandatory

injunction requiring the defendants to follow their pro-

cedure but did put them on notice that their practice was

unconstitutional. Further, the Court held that the

defendants were immune from personal liability under

Procunier v. Navarette, supra.

B-57

These incidents here all occurred prior to this Seventh

Circuit ruling. The Sargeant opinion expressly intended to

put an end to the complained of practice prospectively. It

was not intended to be retroactive. The defendants contend

that their current practice comports with the guidance of

Sargeant and the plaintiffs do not contest that. This failure

by some unnamed persons to give plaintiff Adams

sufficient notice of the reason for his segregation occurred

within the time frame of the Sargeant case and has been

remedied by that decision. In regard to the remaining

allegations of due process violations those claims must fail

due to a failure to prove that any defendant was personally

responsible for the claimed deprivation of a constitutional

right. Stringer, supra, at 1000-1001; Adams v. Pate, supra,

at 107. Therefore, this claim is dismissed.

The individual claims of the following plaintiffs all relate

to the delivery of medical services: James Odis Hendrix;

Mellon Carroll; Grady Thomas Bobbitt; and James Edwin

Blackburn. These claims will be considered in conjunction

with the analysis of the prison medical services.

The individual claim of plaintiff Donald Ray Sciefers

goes to the condition of the cells in which he has been

housed. This evidence will be considered in conjunction

with the analysis of the prison physical plant.

Ill.

The Prison: An Overview

The I.S.P. is a maximum security penitentiary for male

felons over the age of thirty. The original legislative

authority for its construction was passed in 1859. The

prison is enclosed by a forty foot wall which encompasses

twenty-four acres of land. Enclosed are the housing units,

industrial shops, prisoners’ dining facilities, infirmary,

chapel, and other related facilities including a six acre

recreation area. The inmate population at the time of trial

was approximately 1900, by the time of oral argument it

was approaching 2000.

B-58

Inmates in the general! population are housed in A, B, C,

and D and I Cell Houses. Newly arrived inmates are housed

in the Admission and Orientation Unit (A & O). Inmates in

disciplinary segregation are housed in the New Service

Building (N.S.B.), B Cell House Seclusion, D Cell House

Detention Unit, I Cell House Dention Unit (I.D.U.), and in

(A & O). Inmates in protective custody are housed in A & O

and in a ward in the infirmary. Inmates on administrative

segregation are housed in N.S.B. Inmates on self-lockup

are housed in I.D.U. and A & O. The individual plaintiffs in

this action have been housed at different times in the

various cell houses as well as the detention units. Addi-

tionally, all members of the class a/v all housed in units of

the prison.

Cells in A, B,C, and D Cell Houses are 40 to 48 square feet

in size. Cells in I Cell House are 56 square feet in size. Cells

in A & Oare 38 square feet in size. Inmates housed at A & O

are confined there 23 and one-half hours per day. Inmates

confined to N.S.B. lockup unit, the I.D.U. lockup unit and B

Cell House Seclusion are in their cells 23 and one-half hours

a day. Inmates on administrative segregation are in their

cells 22 hours a day.

IV.

The Experts

Mr. Joseph G. Cannon.

Mr. Cannon called as plaintiffs’ first expert witness is

presently employed as a Professor at the University of

Missouri-St. Louis. He received his B.S. degree in Social

Administration with specialization in corrections from

Ohio State University in 1950 and his Master of Social

Work degree with specialization in Correctional

Administration from the same university in 1956.

Mr. Cannon has worked in the Illinois Department of

Correction, the Minnesota Department of Correction, and

the Maryland Department of Correction. It must be noted

B-59

that he was in charge of Adult Correctional Institutions for

the State of Minnesota and left that position to become the

Warden of the Illinois State Penitentiary. His experience in

corrections is extensive.

Mr. Cannon toured the facilities of the Indiana State

Prison on March 21, 1980. During the tour, he interviewed

inmates, staff and administration of I.S.P. He has testified

as an expert witness in prison conditions cases in United

States District Courts in the districts of West Virginia,

Rhode Island, Wisconsin, and Massachusetts over the past

ten years.

The following are his opinions and observations regard-

ing the conditions of confinement at I.S.P.:

General references have already been made relative to

the extreme conditions of the physical plant. The interest

here is to focus on specific conditions that deserve special

mention.

The lack of hot water in the cell houses is unconscionable

and unjust treatment of the prisoners, in his opinion. The

word is out among the population that in some cell houses

hot water taps may be secured for a price. This situation

can only ferment trouble.

Another aspect of the physical plant that needs attention

is the dried food that he found on the front of several cells in

Cell House I, detention unit. It appeared that food had been

splashed on the cell fronts when meals were served to men

in their cells. While it is understandable that this might

occur during the serving of trays and that some of the

spillage may be caused by the prisoners, it is the responsi-

bility of the administration to see that the housing units are

maintained.

The kitchen and dining room were visisted for two meals

and an observation of procedures. Supervision was lacking.

The staff that were present in the kitchen tended to stand

around and talk to each other. Cannon observed a serving

line and noticed that some prisoners were receiving two

B-60

and three pork chops while others received one or none,

even though requests were made for additional servings.

Calling the matter to the attention of one of the staff in the

kitchen Cannon was informed that it didn’t happen. During

his two visits to the kitchen and dining rooms the serving

lines were not being properly supervised.

In the kitchen, large containers of food were uncovered

and sitting under broken windows where something could

fall into them.

Cannon found the educational program understaffed,

undersupervised and underattended among other

apparent areas of difficulty. Cannon visited the school on

two occasions.

In an academic classroom area designed to accommodate

at least 100 students, Cannon found 18 men involved in

classroom activities the first day and 22 the second day. He

also found small groups of completely unsupervised

prisoners in small secluded offices that had the windows

covered or painted over in order to avoid proper supervi-

sion by an officer or teacher. The academic area of the

school and especially those secluded offices were not being

properly supervised and thus were potentially dangerous

areas for most prisoners. One reason the school fails to

attract more students is this lack of supervision.

In a population of 1600 there will be 500 functional

illiterates. When Cannon inquired regarding the number of

classes that were available to deal with this problem, he

was told that there were two classes and that they met only

in the mornings. A high percentage (80 to 90%) of the

illiterate population have the potential and capacity to

achieve educationally at the high school and college level, if

given the opportunity. The men in this prison are not being

given the opportunity and are forced to live in an

atmosphere that discourages such potential. This contrib-

utes to the propensity toward future criminal behavior.

The recreation program with its 5 P.M. to9 P.M. nightly,

B-61

year round, yard activity is very commendable. Cannon

stated this was the first prison that he had worked in or

visited that has had this degree of yard availability. Cannon

visited the yard area and field house during his first visit

and again found supervision to be inadequate. It was a

rainy evening and even with the rain some men were inthe

open yard area while most were in the field house. Cannon

circulated through the field house among some two to three

hundred men. He only found three officers and this is an

inadequate number in such a situation.

During a tour of the industrial shops, Cannon was

impressed with the potential for on-the-job training,

especially in the machine shop and to a lesser degree the

auto tag shop.

During Cannon’s two visits to the shops, he found much

idleness and little productive activity. Again he was

impressed with the potential for meaningful production

and training but at the same time frustrated with the lack

of interest and concern for this potential on behalf of those

responsible.

This concluded the testimony of Dr. Cannon.

Dr. Herbert T. Wood.

Dr. Wood, called as plaintiffs’ expert witness, presently

serves as Chief of the Bureau of Occupational and Institu-

tional Hygiene for the District of Columbia Government.

He has a Bachelor’s Degree in Chemical Engineering,

magna cum laude, Catholic University of America, 1961,

and his Doctorate in Physical Chemistry from the

University of Wisconsin in 1965.

Dr. Wood has been a consultant for the United States

Department of Justice inspecting the vocational industrial

areas of state reformatories for occupational safety and

health-hazards since 1978. His further consultations and

publications in this area are too numerous to mention.

Suffice it to say that he is eminently qualified to give his

opinion.

B-62

The following are his opinions and observations:

At each working area an interview was conducted with

someone (usually the foreman) to ascertain the number of

inmates working the area, the processes involved in

accomplishing the tasks assigned to this area, the tools and

equipment in use, and the period of time the inmates were

in the area. The equipment was inspected and, if necessary,

ventilation and/or noise measurements taken during the

operation. In the event that glues, solvents, lacquers,

paints, etc., were being used, the types and usage rates

were also ascertained.

The occupational environment in each area was

examined and compared with the requirements of the

Occupational Safety and Health Standards (29 CFR

§1910).

In the Tailor Shop cloth in bolts is cut (using templates

for patterns) and then sewn into clothing for use in state

institutions. The sewing is done on industrial sewing

machines. Most of these machines had unguarded belts

(1910.219) in which the operator could catch his fingers.

The electric wiring was in disrepair with junction boxes

uncovered, wire nuts exposed, etc., (1910.308). This could

easily cause sparks which could lead to a serious fire or an

electric shock to the workers.

All of the laundry in the institution, exclusive of the

hospital linen and officers’ uniforms, is done in the laundry

shop. The clothes are sorted, washed, extracted, dried, and

folded in this building. The operation is well designed and

organized. One fan, however, had unguarded blades which

could injure someone who happened to be struck

(1910.219).

The workers in the Auto and Motorcycle Tag Shop are

presently working a ten hour shift preparing for the new

licensing year. The metal for the tags is taken off a large

reel, washed, rinsed, laminated and cut to the correct size.

The cutter produced a noise level of 89-92dB(A). For a

B-63

normal six hour shift these noise levels would not be a

problem. However, for a ten hour shift ear plugs or muffs

are necessary (1910.95). The plates are then pressed in a

rimming machine which puts a groove completely around

the plate. This machine produced a noise level of 98dB(A).

Exposure to this noise level should not be allowed more

than three hours (1910.95) unless ear muffs or plugs are

used. The plates are then embossed with the numbers. Four

machines are used for this purpose. Two of them, embosser

numbers 1 and 2 produced noise levels (92dB(A)) which

would necessitate the use of ear plugs or muffs if the work

continued for more than six hours (1910.95). Also, it was

observed that all of the embossing machines had been

rewired and the new wires (and wire nuts) were outside of

the conduit (1910.308). This is extremely hazardous since

the operator’s hands are very close to the wires and, in addi-

tion, extremely flammable solvents are used in the dip

tanks nearby. A spark would create a fire hazard.

The tags are dipped in a special coating material to

provide extra life to the tags. This material, a 3 M product

with the trade name Reflecto-Lite, is contained in an

enclosed dip tank through which the plates are carried on

racks. The solvents used for this material are extremely

toxic and flammable but the ventilation system contained

within the dip tank enclosure was removing the vapors

adequately.

Also in this area small dog tags are made using a

machine to stamp out the metal tags and a second machine

to punch the numbers on the tag. The noise levels produced

by these operations were such that no hazard exists.

Metal lockers are made starting with sheet metal and

going through the processes of shearing, bending, spot

welding, grinding, and painting. There was no noise

hazard. The metal shearer was foot operated and there

were signs warning the operator to keep his hands free.

The painting was done in the open in front of a spray

paint booth. The reason given for not using the booth was

B-64

that the wheeled truck used to carry the lockers would not

fit into the booth (the lockers themselves do). The ventila-

tion of the booth was adequate and the painter used aspray

mask. While this mask removes the pigment of the paint

from the air it does not remove the toxic solvents and is thus

inadequate for this job, particularly since the vapors are

not being removed from the air (1910.1000), (1910.133).

Dr.Wood believed a correct respirator and a truck small

enough to enter the booth should be purchased.

The Solvent Room contains the paints and flammable

and toxic solvents used in the tag shop operations. In addi-

tion, it contains a covered strip tank for the racks used to

dip the auto tags. The room had three deficiencies: First,

the light switch was inside (1910.309). If there was a build-

up of vapors in the room and the switch arced while the

light was turned on an explosion would result; Second, the

room was sloppy and could be the cause of a tripping injury

(1910.141). Finally, because of the large amount of liquid

present a door sil! is needed (1910.106).

In the Sign Shop, which is located above the tag shop,

road signs are made using the silk screen process.

Unopened cans of paint and thinner are kept in a caged

area in the shop and opened cans in a metal cabinet in the

room. This cabinet, however, does not meet OSHA require-

ments for fire safety (1910.309) and a correct cabinet

should be used.

The silk screens are cleaned on a vertical board on a

trough. Naphtha is used as the cleaning agent and sprayed

on the screens mounted in the trough. The spent naphtha

collects in the troughs and flows into a storage tank and

then is pumped to the spray gun and is used again. Naphtha

is avery flammable (1910. 106) and toxic (1910. 1000) liquid.

There is no local ventilation to prevent the vapors of the

naphtha from entering the room. The operator of the clean-

ing unit wears the same maks as is used on the first floor

and thus is unprotected from the vapors of the naphtha. A

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loca] ventilation system should be installed and the proper

organic cartridge respirator used.

The floor of this shop is in an extreme state of disrepair.

Metal plates, some overlapping, cover portions of the floor.

In some cases the plates are loose and are tripping hazards

(1910.141). They should be repaired.

The Machine Shop is primarily a support facility for the

tag shop. The male and female parts of dies are made as

well as working parts of the machine. A good number of the

lathes and drills do not have guards on the power belts

(1910.219). Some welding is done in the shop but no local

ventilation is provided (1910.252).

The Soap Factory is a large two story building where

bulk soap is manufactured in large kettles, powered soap

(and detergents) are blended, and other housekeeping

products (waxes, strippers, etc.) are produced and

packaged. The area was quite clean considering the type of

operation being carried out.

The same respirator that is used in the painting areas is

used in the dusty areas of this operation. This mask is not

designed for this type of operation and the proper

respirator should be used (1910.133).

The hood over the blending pit had adequate draw for

this type of operation when used in conjunction with a

respirator for the operator.

In the dry cleaning operation clothing is dry cleaned

using perchloroethylene as the cleaning fluid. Approxi-

mately three gallons of this material is used per week. The

perchloroethylene is stored in a 55-gallon drum in the room

and transferred to the washer by an open bucket.This is an

incorrect procedure because of the toxicity of percholor-

ethylene (1910.1000) and its ability to injure the skin if it

comes in contact with it. Special containers for the transfer

of toxic materials of this type are available commercially.

The wiring in this area is in disrepair and one junction

B-66

box did not have a cover (1910.308). Also, two sewing

machines did not have guards on the power belts

(1910.219).

The Power Plant is an extremely clean and well kept up

operation. In the shop in the basement the machine does not

have a guard on the belt (1910.219).

The Store House handles the loading and unloading of

dry goods. There were no violations in this well run opera-

tion.

The Industrial Warehouse building is in serious

disrepair and its use for the storage of the amount of toxic

(1910.1000) and flammable (1910. 106) materials (naphtha,

toluene, xylene, paints, etc.) is ill advised. The roof leaks

making the floor slick increasing the chance of a spill of

these materials with the resulting potential for poisoning

and fire. The firefighting system in the building does not

meet the standards for this type of storage (1910.159).

The Welding Shop has a number of booths along two

walls and in a row in the middle of the shop. Approximately

half of the booths had no curtains to prevent the welding

arcs from being visible throughout the shop (1910.252).

Although a local exhaust system was installed, it provided

essentially no ventilation at the site of the welding

(1910.252). Several of the exhaust ducts were not

connected. This shop should not be used for welding until

the curtains are installed and the local ventilation system is

repaired.

In the Auto Body Shop the surfaces of cars are repaired.

Dents are pounded out and tears are filled in with plastic

filler, the surfaces sanded and then painted. The filler hasa

toxic solvent (the can was labelled “vapor harmful”) and the

worker should use a respirator or be provided with local

ventilation to eliminate the vapors (1910.133). At present

neither is provided.

A paint spray booth is provided in the shop but it does not

have adequate ventilation (1910.107). Two types of

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respirators were available for the workers, one correct (an

MSA cartridge type) and one incorrect (a sponge type).

This latter mask should not be used since it stops the paint

pigment but not the toxic solvents.

In the Electronics Shop there was one fan with

unguarded blades (1910.219). The shop was quite clean and

well ordered.

The Auto Service Shop, although somewhat messy, was

in good shape. The tailpipe exhaust system had an adequate

ventilation rate. There were some wiring irregularities

(1910.308). One of the fire extinguishers was missing

(1910.157).

The Maintenance Shops employ between 100 and 110

inmates, the Maintenance Shops serve mainly as places

where the inmate workers receive their job assignments for

maintenance projects throughout the institution. Some

work, however, is done in the shops.

The Steel Shop is basically a metal working shop. Some

welding is done in the shop and no local ventilation is

supplied (1910.252).

The Carpentry Shop contains several table saws without

guards (1910.219). In addition, none of them had local

ventilation systems to prevent the sawdust from entering

the air (1910.1000).

In the Sanitation Shop pesticides and insecticides are

stored for use in the institution. Respirators are available

for use of the inmate workers.

Maintenance also maintains an Air Conditioning Shop,

an Electric Shop, a Supply Shop, and Plumbing Shop.

There were no deficiencies in these shops.

In the Paint Shop one room is set aside as a spray booth

with the fans set in the wall. This design is incorrect since

the motors are in the path of the exhausted air and thus

exposed to the flammable solvents (1910.107). This area

should not be used for spray painting unit this deficiency is

corrected. B-68

This concluded the testimony of Dr. Wood.

Mr. John P. Conrad.

Mr. Conrad, called as plaintiffs’ third expert witness,

presently serves as the Principal Program Officer, for the

American Justice Institute. He received his B.A. in

political science from the University of California and his

A.M. in social service administration from the University

of Chicago.

Mr. Conrad started in corrections as a parole officer with

the California Youth Authority. He then moved to San

Quentin Prison as senior sociologist for five years. He next

worked for the California Department of Correction’s staff

from where he moved to the United States Bureau of

Prisons as Chief of Research. He has been engaged in

research for the Law Enforcement Assistance Administra-

tion since 1969 and his selected list of publications is quite

extensive. He stated preliminarily an opinion shared by

this Court, that the staff was doing the best they could with

meager resources.

Mr. Conrad toured the facilities of the Indiana State

Prison on May 19 and 20, 1980. During the tour, he inter-

viewed inmates, staff and administrators of the prison. The

following are his opinions and observations regarding the

conditions of confinement at the Indiana State Prison:

In regard to the staff Mr. Conrad made the following

observations. New correctional officers earn about

$11,000.00 per year, or about $917.00 a month. He would

judge, from comments made to him by various members of

the staff, that for a family man without a working wife, this

salary must be insufficient. The significance of this

situation is that correctional officers will be recruited from

men and women whose basic qualifications as to

intelligence and education will be minimal. Many will

accept employment temporarily. Mr. Conrad was told that

the turnover rate for correctional officers is about thirty

per cent per year. It will be difficult to retain the best

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recruits, and the development of supervisory staff will

depend on making the best of what is avaiiable from an

unsatisfactory basic pool of employees. Under the circum-

stances, the staff training program assumes great

importance. There is a one-week training course for new

officers, and no program for supervisory personnel. I

regard this aspect of the staff situation as most

unsatisfactory and urgently in need of correction.

In regard to disciplinary procedures the present situa-

tion is unsatisfactory in structure and general policy.

Under the provisions of the present regulations, rule

infractions of a major nature are heard by a Conduct

Adjustment Board consisting of a sergeant, a correctional

officer and a treatment counselor. The qualifications and

training of the personnel assigned to the Conduct Adjust-

ment Boards do not appear to have been given serious

attention in the past. Mr. Conrad was puzzled as to the low

status of the personnel assigned to this crucial function. In

most prisons that he has any familiarity with, assignments

to these functions are generally reserved for relatively

senior personnel. He was told that under the new regula-

tions, the chairman of the board will be a captain, but that

custodial staff will dominate the board. He believes this is

unsound, neither the reality nor the appearance of

impartiality will be maintained under such circumstances.

Mr. Conrad believed consideration should be given to adop-

tion of the Minnesota system of independent hearing

officers, preparation of the charges by legally trained

personnel and defense representation by persons chosen by

inmates under charges.

The various classes of segregation were confusing. What

seems clear is that a man going into segregation for any

reason will probably not be released to the general popula-

tion during his stay at Michigan City. Many of the men in

Administrative Segregation (the most serious chronic

disciplinary problems) claimed to have been locked up for

periods in excess of a year—some for as long as three years.

B-70

While some of the offenses admitted to him by these

prisoners were very serious, there seemed to be no program

to modify their behavior other than the service of a long

sentence in secluded idleness. Mr. Conrad recommended

that all persons in Administrative Segregation or the

Seclusion units should be assigned a counselor for intensive

contacts. Sentences to these units should be indeterminate,

with provision for parole controls to allow for trial returns

to the general population. It simply is not acceptable to

require protracted sentences under these conditions with

no provision for programmed release. Further, the educa-

tional and recreational staffs should give special attention

to the need for programs for those men who must be

detained for periods of time in excess of a week. There

should be encouragement to participate in cell courses, and

in daily yard exercise. This recommendation should be

readily feasible; there are four correctional officers on duty

in these units during the daylight hours.

There were 46 prisoners in protective custody at the time

of the visit. While this is not an unusually large number of

prisoners so confined, it is unsatisfactory to find that no

program is provided for them. Much more could and should

be done to assure that these men are properly programmed.

Many could be assigned to work programs during the day,

or to school, remaining in protective control only at night. It

was not clear to Mr. Conrad that sufficient investigation of

the situations of the men under protection had preceded

their assignment.

This is a difficult problem to manage in any prison. It

must be kept in mind that under the present protective

custody plan, very few inmates once assigned to such a unit

can ever return to the general population. The basic

principle should be to take very step possible to provide

alternatives to inmates requesting protection.

At the Education Department, about 300 prisoners are

enrolled in academic and vocational training program.

About 140 are on all day assignment to vocational training;

B-71

the rest are part time students. Because the work program,

to be discussed in the next section, is so inadequate, it would

be desirable to expand the educational program to the

greatest extent consistent with quality in the program

offerings. There appeared to be some unused space in the

education unit; it should be put to use as rapidly as possible.

Mr. Conrad does not recommend mandatory assignment to

educational program under any circumstances.

The main prison industry is the license and sign plant, to

which 207 men are assigned. Payment is meager with a

maximum daily rate of $1.10 for skilled workers. Equip-

ment appears to be adequate. Mr. Conrad was told that

there is a waiting list for assignment and that turnover is

low. The work day is about five hours, the pace was

leisurely. A fairly typical tag plant; not a bad place to get

away from the rest of the prison, but hardly comparable to

conditions in an efficient factory—which one would like to

see these men returning to when released.

There really isn’t enough work to go around. The food

manager told Mr. Conrad that he employed 150 men in the

mess hall where 100 would be more than enough. The

consequence is that many of the workers in the mess hall

are working at assignments that could not possibly keep

them busy for as much as an hour a day. There seemed to be

a large number of cell tenders, men whose assignment is to

sweep up and mop the cell houses. The number of men who

are not in full time lockup but officially idle is about 50, not

an impressive fraction of the total population. This is

mostly an idle prison, inhabited by criminals with long

sentences. There are over 450 lifers from the old statutes,

and a considerable number of men under the new law who

are serving very long terms—some adding up to more than

100 years. The combination of semi-idleness and protected

incarceration is dangerous to both staff and prisoners. It

should be a matter of high priority to create a program of

heightened activity, consisting of more work and more

education. .

B-72

A classification system is useful only where there are

programs for which prisoners can be classified. It is effec-

tive only if staff are available to interpret it to program

staff and to inmates. At Michigan City there are ten

classification counselors for the whole population—an

average of at least 180 inmates per counselor. Further,

these counselors are occupied doing board reports and

maintaining minimal records. Counselors are unable to

maintain regular systematic contacts with their caseload.

A functional caseload per counselor would be sixty, with

counselors handling inmates in segregation and protective

custody at somewhat lower levels than sixty.

In the area of mental health professions, an institution

this size, with this population requires one full time board

certified psychiatrist, two clinical psychiatrists and the

same number of psychiatrist social workers to meet the

inmates mental health needs. Currently, none of these posi-

tions exist with the exception of a vacant position for a

psychiatrist.

This concluded the testimony of Mr. Conrad.

Mrs. Louise E. Goggans.

Mrs. Goggans, called as plaintiffs’ fourth expert witness,

is currently employed as the Director of Nutrition Services

at Wishard Memorial Hospital in Indianapolis, Indiana.

She received her A.B. degree in Home Economics from

Indiana University in 1956, did a dietetic internship at

Hines V.A. Hospital, Hines, Illinois and received her M.S.

degree in Nutrition Education from the same university in

1969.

Mrs. Goggans has worked as a staff dietician since 1957

at no less than six hospitals. She has over twenty years

experience as a dietician. Mrs. Goggans is also a member of

the American Dietetic Association, the Indiana Dietetic

Association, the Central District Dietetic Association,

Indiana Public Health Association.

On Friday, August 1, 1980, Mrs. Goggans made an

B-73

inspection of the food service facilities at the Indiana State

Prison, Michigan City, Indiana. During the aforemen-

tioned inspection, she interviewed inmates, staff and

administrators of the Indiana State Prison. The following

are her observations and conclusions regarding the food

service provided at the Indiana State Prison:

The inspection began by proceeding to the prisoners’

Dining Room (PDR) and kitchen. The food service facility

is asingle large building which sits somewhat in the middle

of the prison complex inside the walls. There is a service

line on each side of the dining room with the conveyor and

dish room in the middle of the room. The kitchen consists of

a ramp area containing six large steam-jacketed kettles, a

bank of deep fat fryers, a bank of grills, a bakery prepara-

tion area, two large rotary overns, large walk-in coolers

and a walk-in freezer, and an area for special diet prepara-

tion. Above the kitchen is the food service supervisor's

office.

The breakfast menu for the day was: fresh oranges,

cream of rice cereal with raisins, boiled eggs, toast, jelly,

milk, coffee. The breakfast cook was preparing the cereal

and eggs when Mrs. Goggans arrived, which was

approximately 5:00 o’clock A.M. After preparing them,

they were placed in large stainless steel containers and

taken to the serving line for breakfast.

Meal service began at 5:45 o’clock A.M. and the prison

workers ate their breafast first. Mrs. Goggans was never

told exactly how many prisoners worked on each shift, but

was told by both Mr. Jasper, the food service director, and

the supervisor, Jim, that the total number of workers was

105, and the number of civilian supervisors was 18. Mr.

Jasper said the shifts and working times were determined

each day by the menu preparation and his own discretion.

When the prisoners were fed, they received adequate

portions and Mrs. Goggans was told that the only items

served that were rationed were meat and fresh fruit. The

B-74

prison workers were attired in regular prison garb (blue

demin shirt and blue jeans) or white shirt and white pants.

All the workers had some type of covering on the heads, e.g,

hairnet, handkerchief or cap. They all used either cotton or

plastic gloves while they served the food.

There was a special diet line set up for the diabetic

patients but Mrs. Goggans did not observe anyone who was

served from this line either at breakfast or at lunch. The

diabetic menu is written for an 1800 calorie diet and Mr.

Jasper said they adjust the diet up to 2500 calories or down

to 1200 calories according to the doctor’s orders.

During the breakfast hour Mrs. Goggans went to the

I.D.U. detention unit and observed the breakfast service

there. The food was transported on a hot cart and the coffee

in a large stainless steel thermos. The prisoners there

received the same food except they also got two slices of

bread in addition to toast. Patients in the hospital were also

served from a hot cart. There were only 13 patients in the

hospital, and one of them was in isolation.

After breakfast, Mrs. Goggans observed the dinner

preparation. The “ramp cook” was making a white sauce

for the escalloped potatoes. The potatoes were dehydrated

sliced potatoes which had been rehydrated early that

morning. The coleslaw consisted of coarsely chopped

cabbage mixed with salad dressing. The baker was

preparing chocolate cake with chocolate icing. Fish was

deep-fried about 9:45 o'clock A.M. The fish was a

prefabricated product that tasted good while it was hot. A

tartar sauce had been prepared to accompany the fish. The

coleslaw, which was very coarsely chopped, had no

seasoning, was not a very good product. The potatoes were

not cooked long enough and were tough and chewy. The

creamy style corn was canned and had been heated with

oleomargarine added for seasoning so it was adequate. The

chocolate cake had extra eggs and flour added to give ita

better texture, so it was very good and had an excellent

texture.

B-75

Mrs. Goggans asked Mrs. Jasper about:

a. Recipes for food preparation:

He told here that they were kept in his file and he used

them for training of the cooks. However, she did not see any

of them. He also said that each time a product was

prepared, it was prepared differently to add more variety

to the meals. To her, this would defeat the purpose of having

standardized receipes if the product was going to be

prepared a different way each time 1t was cooked.

b. The amount of money spent per diem per man:

That amount is one dollar ninety-one cents ($1.91).

c. Who does the training of cooks and supervisors:

Mr. Jasper takes personal responsibility for the training

of the personnel. The early supervisor, Jim, who stated that

he had been on the job for about three years, did not appear

to have much knowledge about food preparation. Mrs.

Goggans observed him telling the employees in the kitchen

to put out their cigarets a number of times.

The present area where the trash and garbage is stored is

located outside the kitchen and dining room in the rear of

the building. The area was dirty, smelly and fly-infested. A

new area is supposedly being constructed inside the

kitchen for this purpose. Mrs. Conrad questioned the

feasibility of locating the area inside the kitchen consider-

ing the condition of the present area. It would possibly

cause problems with dirt, odor and insects.

The other areas that Mrs. Goggans visited were the

general store, butcher shop, and storage for the

commissary. In the commissary, the correctional sergeant

in charge stated that aside from tobacco, the food items are

the fastest selling items in the commissary.

Just before preparing to leave, a group of inmate workers

asked if they could speak with Mrs. Goggans. There were

about 12 prisoners in the group who indicated that they had

B-76

some complaints about the food service that they wished to

share. They told her the following things.

a. Normally, no one employed in the kitchen or dining

room wore gloves or hats, that these items were passed out

to them and other preparations made because of the notice

the prison officials had of her intended inspection.

b. Most of the prisoner workers refused to eat the baked

goods and advised their friends to do the same because one

of the bakers had been treated twice for hepatitis and once

for gonorrhea and used his hands in icing the cakes and in

handling the baked products.

c. The baked goods were usually baked a day ahead and

were stale by the time they were served.

d. Prison employees had been working on cleaning up

the kitchen for three weeks prior to her visit.

e. Their most adamant complaint was that the quality

of the food was so poor and no real effort was made to

improve it in spite of their consistent complaints. No

seasoning is used in food preparation except salt and oleo.

Mrs. Groggans did not see any evidence of spices or flavor-

ing, even though Mr. Jasper told her that the cooks used

many varieties.

A great deal of preparation apparently was made for this

visit. Even though the floors had been recently scrubbed

and mopped, there was an observable accumulation of old

dirt on the floors.

The serving of special diets is inadequate. A prisoner

prepares the food. Since there is no dietician or other

qualified person there to supervise or check his work, the

diets could not be accurate. Mr. Jasper indicated that the

1800 calorie diet could be raised to 2500 calories or lowered

to 1200 calories if needed, but there was only one written

diet and that was an 1800 calories diet, and to make these

adjustments would require someone who had been trained

to handle special diets.

B-77

Even though the food is adequate in quantity, the

preparation is poor so the end product is often undesirable

and probably leads to excess waste. If trained personnel is

available, it would seem practical to allow them to us their

talents and skills to make the food more appetizing. Man-

power does not seem to be a problem, since there appears to

be plenty of people working in the kitchen.

For those inmates who do not eat pork, perhaps for

religious reasons, their diet would be deficient since there

are not substitutes offered on the menu. Here again, the

services of a qualified dietician could be used to adequately

adjust the menu with substitutes for these inmates.

The menus provided Mrs. Goggans were checked for

accuracy and adequacy according to RDA (recommended

dietary allowances). The diabetic menu was inaccurate on

four of the seven days. Cookies were on the diabetic menu

for breakfast on Tuesdays and normally sweets are not

served to diabetics.

Nutrients Days of the week below RDA

Calories Sunday, Tuesday, Thursday

Vitamin A Sunday, Wednesday, Friday,

Saturday

Vitamin D Every day (no fortification)

Vitamin C Sunday, Tuesday, Saturday

Thiamine Tuesday

Riboflavin None

Niacin Tuesday, Thursday, Saturday

Calcium Wednesday and Thursday

Phosphorous None

Magnesium Every day

Protein None

The inadequacies of the above listed nutrients, would

leave the diet deficient of the recommended daily allow-

ances and therefore making the menu inadequate. These

calculations were made prior to visiting the institution

based on a standard serving rather than what was actually

served.

B-78

This concluded the testimony of Mrs. Goggans.

Dr. Ronald M. Shansky, M.D.

Dr. Shansky, called as plaintiffs’ fifth expert witness, is

currently employed by Cook County Hospital as an

attending physician and is the Medical Director of the

Uptown Peoples Health Center. He received his B.S.

degree from the University of Wisconsin in 1967 and his

Doctor of Medicine from the Medical College of Wisconsin

in 1971. He subsequently received his Master of Public

Health from the University of Illinois School of Public

Health in 1975. Dr. Shansky is a licensed physician in the

State of Illinois and is board certified by the American

Board of Internal Medicine.

Dr. Shansky’s medical experience is very wide. Most

notable, however, in his service as the staff physician at the

Metropolitan Correctional Center of Chicago, his appoint-

ment by United States District Court Judge J. Foreman to

advise on health conditions at Menard State Prison in 1976,

and his position as medical consultant to the United States

Department of Justice Civil Rights Division. Additionally,

Dr. Shansky has inspected the medical facilities in 14

prisons in eight different states.

On July 18 and 19, 1980, Dr. Shansky inspected the

medical facilities at the I.S.P. The inspection consisted of

review of the physical facilities, interviews with correc-

tional and medical staff, interviews with inmates, and

review of medical records and documents. Dr. Shansky also

went through the medical facility on January 12, 1981,

prior to his testimony. The following are his opinions and

observations regarding the medical facilities and services

at the 1.S.P.:

The leadership of the medical services program belongs

to Dr. Ronald Freake, a non-physician. He has clearly

attempted to improve the organization of the medical

services by developing a policy and procedure manual and

protocols for medical care. Physician assistants have been

B-79

hired, a medical audit review committee has been

established and efforts have been made to give some of the

staff cardio-pulmonary resuscitation training. Many of the

staff, the physician extenders in particular, seemed

extremely dedicated, concerned and committed to adecent

standard of care for the inmates. They work under

extremely trying conditions. In addition, plans are under-

way to develop a unit dose system for the pharmacy.

Policies do include an entrance history and physical exam

on all inmates. Finally, various specialists from the com-

munity are used and dental services are available. Despite

the encouraging signs noted by the above-described

phenomena, serious deficiencies exist resulting in potential

threat to the health and well being of the inmate popula-

tion.

STAFFING

Physician staffing consisted of Doctors Mai, Gallinatti

and Dang. Their responsibilities included daily sick call for

the general population, infirmary rounds, supervision of

medical technicians and physician assistants, segregation

sick call, performance of medical procedures, review of

laboratory, ancillary services reports, and functioning on

committees as designated. In addition, they are expected to

be on call for emergencies at nights and on weekends. From

discussions with staff and review of records, the physician

staffing has been deficient for quite some time. Supervision

of the physician assistants and medical technicians was

extremely deficient. In addition, both inmates, correctional

staff and health services staff indicated that at least one

and possibly two of the physicians had difficulty under-

standing the patients and were unintelligible themselves to

the patients because they are foreign medical graduates.

Since doctor/patient communication is the basis of the

doctor/patient relationship, deficiencies in this area may

result in serious jeopardy to the well being of the patients.

Three full time physicians, as the total physician staff, does

not appear to be adequate. In addition, the positions must

B-80

be filled with individuals who take full responsibility for

the care of the patients. The significant shortage in

physician staffing results in inefficient primary care func-

tions and may also result, therefore, in inappropriate use of

specialists. A very serious result of this physician shortage

is the inadequate supervision for all personnel functioning

under the supervision of these physicians.

Physician assistant staffing consisted of Mr. Baker and

Mr. Pitcher and there was one nurse practitioner, Ms. Case.

Ms. Case was responsible for supervising the medical

technicians. The physician assistants were responsible for

performing sick call duties, triaging inmates to the

medical technicians and physicians and performing

various medical procedures under the supervision of a

physician. In addition to seeing patients from the general

population at sick call, physician assistants could admit

patients to the infirmary when indicated. The physician

assistants were also on call for emergencies. This number

(3) of primary care extenders is also insufficient and results

in overwork and delegation of functions to medical

technicians which are beyond the capability of the medical

technicians.

There were five medical technicians whose major

responsibilities were sick call, the infirmary whenever

they were able to get there, and medication distribution. It

was agreed by all staff that this number of medical

technicians was also insufficient and resulted in officers

distributing medications on the tiers and in the work areas.

From the medical records and from inmates and staff, it

was consistently reported that inmates did not get their

medications. No record is kept as to whether the inmate

received his medications. When the officer doesn't give the

medication, he writes “R”. This does not differentiate

refusal from unavailable. Only medical personnel should

be involved in the distribution of medications.

There is only one laboratory technician and this resulted

B-81

in inmates working in the laboratory and thus having

access to Jaboratory results.

A correctional officer was responsible for the medical

records. This is totally unacceptable. A full time medical

records librarian and several clerk typists are necessary to

staff an adequate medical records library.

No physical therapy staff were present. At least one part

time and possibly full time physical therapy person should

be present.

Dr. Freake indicated that dentists were providing a total

of 96 hours of dental services. He also indicated that this

resulted in up to two weeks delay for routine and sometimes

urgent dental services. This is woefully inadequate and

results in significant delays, discomfort and pain for

inmates at the institution. In

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