Opposition — Faulkner v. Wellman

mVve Ve ew DEV 1VU Woe

IN THE A ANOER L STEVAS

SUPREME COURT OF THE UNITED STATES > a

OCTOBER TERM 1983

GORDON H. FAULKNER, et al.,

Petitioners,

vs.

BRUCE D. WELLMAN, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

WILLIAM E. MARSH

(Counsel of Record)

MICHAEL R. MILSAP

PATRICIA L. BROWN

LEGAL SERVICES ORGANIZATION

OF INDIANA, INC.

107 North Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

Telephone: (317) 639-4151

Attorneys for Respondents

ee

QUESTION PRESENTED FOR REVIEW

Whether there are special and important reasons for the Court

to review the judgment of the United States Court of Appeals for

the Seventh Circuit that the overcrowding and inadequate medical

cae at the Indiana State Prison are in violation of the Eighth

and Fourteenth Amendments to the Constitution of the United

States.

TABLE OF CONTENTS

PAGE

STATEMENT OF THE CASE. . . + © © © © © © © © © © © © @ l

SUMMARY OF ARGUMENT. . 1. «© «© © © © © © © © © © © © © ® 13

ARGUMENT. . «© © © © © © © © © © © © © © © © © 8 8 oe 14

COMCLUGION. »« ee se se ese eeee ee eee eee 23

TABLE OF AUTHORITIES

CASES

Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.

265, 50 L.Bd.2d 251 (1976). . «. «© © © © © © © © © © © LG, 16

21, 22

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

cert. denied 450 U.S. 1041. . . «© 2 © ew © © © ww ow 2 LY

»

amos v. Lamm, (On Remand) 520 F.Supp. 1059,

- See: DOORS. coe se 6 ee ee ee ee

Rhodes v. Chapman, 452 U.S. 337, 101

S.Ct. 2392, 69 L.Ed. 2d 59 (1981). . . . . . . . . . . 14, 15

CONSTITUTION

Fourteenth Amendment To The Constitution

of the United States. . .* . . . * .* .* . . .* . . . . 13, 14

Eighth Amendment To The Constitution

of the United States. . . . . . . . . . . . . . . . ebay 14

ee ee me. owe ~

STATEMENT OF THE CASE

The statement of facts found in the Petition For Writ of

Certiorari is inaccurate, misleading and argumentative. This

statement of the facts is taken verbatim from the Argument sec-

tion of the brief filed by the petitioners in the United States

Court of Appeals for the Seventh Circuit. See, Brief of

Defendants-Appellees, Cross-Appellants at 13-14 and 17-22.

The trial of this case was an intensive scrutiny of the con-

ditions of confinement and the medical care provided at the

Indiana State Prison (hereinafter I.S.P.). The trial was con-

ducted inside the walls of the I.S.P and consumed eleven days of

the court's calendar. Petition For Writ of cCertiorari at 4.

The court heard 111 witnesses and received several hundred exhi-

bits. Supplemental Appendix at B-26. The transcript is 2,254

pages in length and the court wrote a 194 page opinion.

Condensation of this sizeable record is difficult, but the

petitioner's statement of the facts is a distorted view of the

evidence which was considered by the Honorable Allen Sharp,

United States District Judge. The petitioners' statement of

facts ignores the findings of facts rendered by Judge Sharp and

is a compilation of opinions of the defendants and their

employees and consultants.

Judge Sharp's opinion made many important findings of fact.

The district court found that "(t]he I.S.P. is an all male maxi-

mum security correctional facility, which has been in existance

at the present location approximately 120 years." Supplemental

Appendix at B-12. Inmates confined in the I.S.P. are housed in

unusually small cells. Judge Sharp held: “Indeed every standard

for prison living conditions requires more distinct, severable

room for individual inmates than is available at the I.S.P."

Supplemental Appendix at B-182. Some non-disciplinary inmates

are housed in cells as small as 38 square feet in size for 23 and

one-half hours per day. Supplemental Appendix at B-59.

The opinion of the district court describes an old, decrepit

prison. The district court found that "“[ljeaking pipes and

defective plumbing are not an uncommon problem.” Supplemental

Appendix at B-190. This conclusion is supported by an inspection

of the plumbing conducted by a contractor hired by the defen-

dants. The contractor concluded that essentially the entire

waste and vent system of the cell houses must be replaced and the

plumbing fixtures in the cells are “not suitable for the

occupancy.” TR 1424; Pl.'s Ex. 91 at p. 4 and Pl.'s Ex. 92. For

example, in "A" cell house the defendants’ own contractor found

defects in the plumbing in three hundred seven (307) of the three

hundred forty (340) cells inspected. Pl.'s Ex. 91 at p. 8-28.

The court's finding was also supported by the testimony of

Mr. Samuel Hoover, a public health officer, who found over five

hundred cross-connections between the drinking water system and

the sanitary sewer system at the I.S.P. Supplemental Appendix at

B-107. A cross-connection between the drinking water system and

the sanitary sewer system “creates a real and imminent threat of

contamination of the drinking water provided to the inmates."

Suplemental Appendix at B-107. Mr. Hoover identified over 161

water leaks in the plumbing system in the cell houses and

numerous leaks in the sewer lines which were releasing hazardous

methane gas in the cell houses. Pl.'s Ex. 306 at p. 2-4.

Escaping methane gas creates the potential for an explosion in

the cell house. This threat is exacerbated by exposed wiring

which was found in the pipe chase area of the cell houses.

Supplementai Appendix at B-106. This conclusion was reinforced

by the cseport of the chief inspector for the Indiana State Fire

Marshall. This inspector advised the defendants that numerous

“remedial activities are necessary. . . all electrical wiring

shall be upgraded to a safe condition." Pl.'s Ex. 90 at p. l.

The district court found that “the conditions in the main

food service area showed a difficiency in routine maintenance and

cleaning procedure." Supplemental Appendix at B-190-91. Judge

Sharp further described 1.S.P. as follows:

In addition there is a problem with rodent and

insect infestation. Trash, food and other

material litter the cells and corridors in

some places, conditions which are the product

of the inmate's own actions. Some shower

drains were similarly obstructed, providing

areas for mold and slime to build up. Exposed

electrical wiring did pose some hazards but

again the evidence is,that the inmates take

the covers off the junction boxes. There is

evidence that in some instances inmates are

not provided with enough cleaning supplies to

clean their own cells. Finally, the

mattresses seem to suffer from irregular main-

tenance and cleaning procedure. Supplemental

Appendix at B-190.

In addition, the memorandum opinion of the district court

recites the following observations made by Mr. Samuel Hoover, the

retired Director of the Division of Preventive Health Services of

the United States Public Health Service:

Ventilation and temperature conditions in the

I.S.P. can be an environmental health hazard

during hot, humid, climatic conditions. . . No

area was found to meet [American Public Health

Association] standard, and six out of ten

areas tested had no detectable ventilation.

Supplemental Appendix at B-108.

zx *

Lighting in the I.S.P. is very deficient rela-

tive to any past or present standard pro-

mulgated for adequate vision in the United

States. Supplemental Appendix at B-108.

x «

The milk coolers were very dirty and in poor

repair. Supplemental Appendix at B-1lll.

In the kitchen area food was stored directly

on the floor and in non-food grade containers

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such as Rubbermaid garbage cans. Supplemental

Appendix at B-111-12.

In the bakery the equipment was dirty but sup-

posedly ready for _ reuse. Supplemental

Appendix at B-112.

The I1.S.P. laundry facilities do not meet

institutional standards. Supplemental

Appendix at B-112.

In regard to recreational facilities... the

toilet and shower facilities are inadequate to

serve the 400-600 inmates who use it on a

daily basis. These shower facilities, five

shower heads in all, serve as extended facili-

ties for the cell houses whose shower fixture

ratio is beyond any standard or realistic use

potential. Supplemental Appendix at B-112.

None of the housing units has-~ sprinkler

systems nor had any fire drills been conducted

for inmates. Ladders were used in D Cell

House as a second exit in violation of 1976

Life Safety Code of the National Fire

Protection Association. Stairways should be

installed from the upper floors. The distance

from the furthest point of habitation in B and

D Cell Houses exceeds the maximum travel

distance of 150 feet to an exit by 100 feet in

some instances. All cell doors are key locked

after 9:00 o'clock P.M. and the keys are

returned to the control room of the guard

hall. Thus, in the event of fire in a cell

house each.cell would have to be unlocked

manully (sic) to release the inmate.

Supplemental Appendix at B-106-07.

The United States Court of Appeals for the Seventh Circuit

summarized the record as follows:

Michigan City's physical plant is more than

one hundred years old. Given its age, it is

not surprising that there are problems with

plumbing, electrical wiring and rodent and

insect infestation. Routine maintenance in

the cells, corridors and main food service

area is deficient. As discussed above, the

medical care system makes unnecessary suf-

fering inevitable, and overcrowding simply

heightens this pain. Overcrowding also has

resulted in extremely limited time for outside

recreation and unreasonable periods of time

some prisoners must spend locked in

~4-

———

exceedingly crampeaq celis. For exampie, pri-

soners in the A & O Unit have been spending

between 22 and 23 1/2 hours per day in their

cells, although the cells' floor space only

amounts to 17 square feet. There was testi-

mony that some inmates have not had outside

recreation in five months. There has also

been an extreme shortage of prison personnel

in recent years. Appendix at A-13. (emphasis

in original)

The petitioners ‘factual description of medical care provided

inmates at the I1.S.P. also ignores the findings made by the

district court and the description of the system by the United

States Court of Appeals for the Seventh Circuit. The seventh

circuit concluded that "“unnesessary suffering is inevitable"

because of the “gross deficiencies in staffing, the shocking

delays in treatment and the ongoing severe problems in stocking

needed supplies." Appendix at A-12.

The district court made numerous other findings which are

examples of the level of medical care provided for the inmates.

Inmate Finken, an epileptic since birth who required medication

three times a day, failed to receive his medication for a whole

month. At the end of the month, Mr. Finken was involved in a

confrontation with an officer which resulted in personal injury

to Mr. Finken. Mr. Finken requested a sick call pass but was not

taken to the hospital until a week and one day later when x-rays

discovered a broken rib. Supplemental Appendix at B-164-66.

Inmate Stewart Brooks continues to suffer the effects of a

fractured bone being reset by an inmate, pursuant to the instruc-

tions of the I.S.P. physicians assistant. The district court

said, "“[t])his Court is acutely sympathetic to the apparent medi-

cal mistreatment suffered by plaintiff Brooks." Supplemental

Appendix at B-50.

Judge Sharp found that the prison dentist had instructed

inmate Sam James to pull the teeth of other inmates. When he was

took two dentists two hours to remove the broken tooth.

Supplemental Appendix at B-174.

Plaintiff Wellman broke a tooth on a rock in the beans at the

I.S.P. dining hall. Despite his numerous requests to see a den-

tist, he was not given an appointment with a dentist until nine

months after the injury. At that time he paid an inmate clerk

three boxes of cigarettes and received the appointment with the

dentist immediately. Supplemental Appendix at B-26.

James Odis Hendrix sought medical treatment for a stomach

disorder for two years before he was able to see any medical per-

sonnel. Supplemental Appendix at B-174. The district court

awarded Mr. Hendrix five hundred dollars damages for this denial

of medical care. Supplemental Appendix at B-193.

Mellon Carrol had an abscess on his buttock which had gone

largely untreated since 1975. The condition, which makes it

painful to sit or walk, continued to persist at the time of trial,

and the court awarded Mr. Carrol $1,000 damages. Supplemental

Appendix at B-175 and B-193.

Grady Thomas Bobbit sought treatment for a dental problem

from 1975 until 1977 at which time the problem was solved by

extraction of a tooth. The court awarded Mr. Bobbit $500 dama-

ges. Supplemental Appendix at B-175 and B-193. The damage

awards to these three inmates were vacated by the court of

appeals on respondeat superior grounds and the matter remanded

"for clarification and an appropriate disposition." Appendix at

A-18.

The opinion of the district court reviews the testimony of

numerous inmate witnesses, but for unexplained reasons makes no

mention of the testimony of other witnesses, both inmate and non-

inmate, many of whom testified about medical care. The court of

appeals said, "in the instant case, we think the record contains

sufficient evidence of repeated instances of negligent medical

treatment together with evidence of general systemic deficiencies

to establish that there is a deliberate indifference to serious

medical needs such that unnecessary suffering is inevitable."

Appendix at A-8. In addition to those examples cited by the

court of appeals, the record contains many other “repeated

instances of negligent medical care." The following is a brief

compilation of some of those instances:

Inmate Pasha was bitten by a rat in his

cell. Correctionai officers refused to take

him to the infirmary for treatment and simply

gave him some "methylate”" (sic) on a Q-tip to

clean the bite. TR 409-10.

Carl Sanderson developed infection in a

Surgery scar while the prison was “under

lock." The cellhouse officer refused to take

him to the infirmary and he had to lance the

infection himself. TR 415-16. The same

inmate was, for the same injury, given a

defective cast which wore through but the

I.S.P. doctor refused to replace it. TR

414-16.

Inmate Cooley died in the prison infirmary

the day after asking a physician's assistant

for nitroglycerin pills for his heart con-

dition. The physician's assistant refused to

give him the medication because he had just

been given some pills two or three days

before. TR 421-22.

Inmate Gary Hurin was returned to the

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I.S.P. infirmary from a psychiatric hospital

in a very depressed condition. The I.S.P.

doctor refused to keep him in the infirmary

and put him in a disciplinary lock-up unit

where he committed suicide by slashing his

wrists and hanging himself. TR 422-23.

Cleophus Williams injured a finger playing

handball in August of 1978 and reinjured it

playing basketball later in 1978. The finger

was not x-rayed until August, 1979 at which

time it was discovered that there was a broken

bone in the finger. At that time the doctor

recommended surgery which was performed seven

months later in March, 1980. TR 450-51.

Inmate Williams was given a routine blood

test when he entered the I.S.P. in October,

1977. In August, 1978, he was advised that

the test showed that he had syphilis and

treatment was commenced. TR 451-52.

Kareem An-noor was given a prescription by

a doctor for Benadryl to treat an allergy

problem. Despite the prescription he never

received the medication, and the doctor told

him that the warden had told the doctor that

the inmate could not have that prescription.

TR 485-86.

Arthur Pierce, Jr. was given a prescrip-

tion for a special diet because of his diabe-

tes. A few days after receiving the

prescription, Mr. Pierce was told by the doc-

tor who prescribed it that he could not

EEE teeta er Ne iM (2020 OO tlt OO SS OEOVOOOOS ttt, |

do not have a diet for diabetics. TR 492-93.

Mr. Pierce, who is on continuous medica-

tion for his diabetes, testified that each

time a prescription ran out, the inmate had to

go to the infirmary for a new prescription.

This procedure always resulted in a 3 to 4 day

period without the medication. TR 490-91.

The emergency medical procedure included

sending untrained inmates from the infirmary

to respond to emergency calls. An inmate

described in detail how he was sent to a

cellhouse to respond to an emergency call that

an inmate had been stabbed. The untrained

inmate tried unsuccessfully to treat the vic-

tim who died of the stab wounds. TR 499-501.

A different inmate described two stabbing

incidents in the cellhouse where untrained

inmate attendants provided the only response

to an emergency call for assistance. In both

cases the inmates tried to treat the stabbing

victims, but in both cases the victims died.

TR 531-34.

An I.S.P. physician's assistant testified

that inmate Clyde Tinsley suffered a heart

attack at the prison at 8:30 p.m. on January

2, 1981, three days prior to the trial of this

case. The physicians assistant was called to

the prison to provide emergency assistance.

Upon his arrival he called for the doctor to

assist but the doctor refused to come to the

removed to a hospital. TR 646-47.

The court of appeals' opinion summarizes

the medical care provided for James

Stubblefield, a 47 year old inmate who died of

a heart attack. Mr. Stubblefield was treated

at the prison infirmary for 9 hours by medical

technicians before he was sent to a hospital.

A medical technician is the equivalent of an

orderly. TR 651. On four occasions the medi-

cal technician requested the doctor to come in

to see the inmate, but on each occasion the

doctor refused. Appendix at A-1ll.

Psychiatrist Frank Rundle described inmate

Kaiser as suffering from a chronic schizophre-

nic illness with repeated exacerbations and

remissions. Dr. Rundle, in his uncontradicted

testimony, stated that it was impossible for

this inmate to receive, at the I.S.P, the kind

of medical treatment which would prevent this

cycle. Dr. Rundle testified, “the occurence

of repeated episodes during which such an

individual becomes floridly psychotic is

accompanied by a progressive deterioration in

psychological and intellectual functioning

which leads to more and more serious impair-

ment of that person's capability of

adjustment." TR 1004.

Dr. Rundle testified that inmate Deel, an

inmate confined to a lock-up unit at the

I.S.P. was suffering from a “chronic schi-

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RSS — eee

for an indefinite period and regular super-

vision by a psychiatrist.” TR 1008. No

psychiatrist was available at the I.S.P.

Dr. Rundle found inmate Bell to be “a man

who has experienced a serious psychotic

illness who was appropriately treated at the

hospital with medication and who, in my opi-

nion, should have been seen for regular eva-

luation after returning to prison and

continued medication. And quite predictably,

without that, his symptoms would reoccur." TR

1010-11.

Dr. Rundle testified that inmate Jones was

"manifesting symptoms of a serious psychotic

illness which I would place again in the schi-

zophrenic category." TR 1011. Dr. Rundle

testified that inmate Jones had been in the

lock-up unit for some months, had never been

seen by a psychiatrist nor received medica-

tion, and "in my opinion, that man [Jones]

should have been in a hospital on the day that

I examined him." TR 1012.

Shorobbie Carter was bitten by a rat while

he was removing food from a food cart in June,

1979. He was taken to the I1.S.P. infirmary

technician. The medication used in the shot

had an expiration date of January 9, 1978,

nearly one and one half years prior to its

usage. TR 302-06.

In addition to this uncontroverted evidence, the court heard

lie

evidence of many other examples of the medical care provided to

inmates at the I.S.P. In many of these cases, doctors gave the

court conflicting opinions as to the adequacy of the treatment.

~-12-

SUMMARY OF ARGUMENT

Special and important reasons for this Court to review the

decision of the United States Court of Appeals for the Seventh

Circuit do not exist. This Court has developed the eighth

amendment standards as they relate to overcrowding and medical

care in prisons. The Fourteenth Amendment to the Constitution of

the United States applies these standards to the states. The

court of appeals properly applied those standards to the evidence

in the record,

The record demonstrates that the Indiana State Prison

(hereinafter I.S.P.) is a dismal, ancient prison where inmates

are housed in small cells for long hours every day. The judgment

of the district court that the I.S.P does not have the capabi-

lity of housing more than 1,615 persons is a narrow constitu-

tional holding supported by the record, which would have

supported a much broader, more intrusive remedy.

The court of appeals correctly concluded that evidence of

systemic deficiencies in the medical care delivery system and

repeated examples of inadequate medical care demonstrated a deli-

berate indifference to the well being of inmates which made suf-

fering inevitable.

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ARGUMENT

The United States Court of Appeals for the Seventh Circuit

found two constitutional deficiencies in the conditions of con-

finement at the Indiana State Prison. Appendix at A-6. First,

the court found that the medical care delivery system at the

Indiana State Prison (hereinafter I.S.P.) does not satisfy the

"minimum level of medical service [which] must be maintained to

avoid the imposition of cruel and unusual punishment." Appendix

at A-12. Second, the court of appeals affirmed the district

court's holding that the Indiana State Prison is unconstitu-

tionally overcrowed.

The only reason the petitioners cite to this Court for the

issuance of a writ of certiorari to review this judgment of the

court of appeals is that “The Seventh Circuit has Erroneously

Decided a Question in a Way in Conflict with Controlling Decisons

of this Court. . ." Petition For Writ of Certiorari at ll. The

reason asserted by the petitioners is not a “special and impor-

tant reason" for the issuance of the writ as to either of these

two questions. United States Supreme Court Rule 17.

This Court has defined the standards, imposed by the Eighth

and Fourteenth Amendments to the Constitution of the United

States, which limit the conditions in which an individual can be

incarcerated by a state. In Estelle v. Gamble, 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court defined the standard

for evaluating the medical care which must be provided to persons

incarcerated by a state. In Rhodes v. Chapman, 452 U.S. 337, 101

S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Court defined the standard

used to determine whether the conditions in which the individual

is confined are consistent with the Eighth Amendment.

The standards defined by this Court in Rhodes v. Chapman and

Estelle v. Gamble, are as specific and workable as is humanly

-14-

possible. Prior to Chapman many federal courts, both district

courts and courts of appeal, defined the eighth amendment stan-

dard as it applies to prison conditions and overcrowding. See

Rhodes v. Chapman, 452 U.S. 337 (1981) (Brennan, J. concurring).

The Court's opinion in Chapman resolved any prior doubt as to

what is the appropriate definition of the eighth amendment stan-

dard.

It is, of course, the function of this Court to provide the

standard by which the conditions in a particular prison should be

evaluated. Once that standard has been announced, it becomes

the function of the district courts and the courts of appeals to

apply that standard to individual claims for relief brought

before those courts. It is not a part of the function of this

Court to review routine prison cases, such as the present case,

to determine whether the district court and court of appeals have

correctly applied the standard to the facts.

Given the use of the appropriate standard by the district

court and court of appeals, Justice Brennan's observation in

Chapman is controlling. Justice Brennan said, "“({eJach of these

descriptions has its merit, but in the end, the court attempting

to apply them is left to rely upon its own experience and its

knowledge of contemporary standards." 452 U.S. 337 (1981)

(Brennan, J. concurring).

There is good reason for this allocation of functions. In

the present case, the district court judge conducted a lengthy

trial, inside the walls of the I.S.P., at which all parties were

given a full opportunity to enlighten the court as to the medical

care and the overcrowding at the I.S.P. The court heard from

prison administrators, employees, inmates and experts first hand

and experienced the atmosphere and the emotion of the prison

during eleven full days of trial. In addition to the testimony,

-15-

the court i00Ked at scores of pictures ana reviewed hundreds or

documents. Following the district court judgment, the entire

record, including the transcript and all of the exhibits, were

sent to the court of appeals for a reveiw by that court. Another

appellate court review by this Court would be inefficient and

purposeless.

It is clear that both lower courts followed Chapman and

Gamble. This Court's opinion in Rhodes v. Chapman, 452 U.S.

337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), was released after the

trial of the present case, but before judgment. Upon publication

of the Chapman opinion, the district court ordered counsel for

the parties to brief Chapman, and the court rendered its judgment

in this case only after receiving those briefs. Supplemental

Appendix at B-189. The district court unquestionably decided

this case by applying the standards defined in Chapman and

Gamble to the evidence presented at the trial. Supplemental

Appendix at B-14; B-186-89; and B-177. The court of appeals uti-

lized the Gamble and Chapman standards in reviewing the judgment

of the district court. Appendix at A-7 and A-14.

The petitioners have set forth no “special and important

reasons" why this Court should issue a Writ of Certiorari to

review the opinion of the court of appeals in this case.

While it is clear that the Chapman opinion establishes the

controlling legal standard in this case, the actual holding of

the Chapman case has no bearing on the present case. Factually

the difference between the Southern Ohio Correctional Pacility,

which was an issue in Chapman, and the I.S.P., which is at issue

in the present case, are as different as day and night. Justice

Brennan described the Southern Ohio Correctional Facility as

follows:

From the district court opinion, I know that

the prison is a modern, “top-flight, first

class facility," built in the early 1970's at

a cost of some $32 million, 434 F.Supp. 1007,

-16-

1009 (SD Ohio 1977). Judge Hogan, who toured

the facility, described it as “not lacking in

color," and, “generally speaking, .. . quite

light and. .. airy, etc." Id. at 1011. The

cells are reasonably well-furnished, with one

cabinet-type night stand, one wall cabinet,

one wall shelf, one wall mounted lavatory with

hot and cold running water and steel mirror,

one china commode flushed from inside the

cell, one wall-mounted radio, one heating and

air circulation vent, one lighting fixture,

and one bed or bunkbed. Id. at 1011-1012.

Prisoners in each cell block have frequent

access to a day room, which is "in a sense

part of the cells," and is “designed to fur-

nish that type of recreation which an ordinary

citizen would seek in his living room or den."

Id. at 1012. Food is “adequate in every

respect," and the kitchens and dining rooms

are clean. Id., at 1014. Prisoners are all

permitted contact visitation. Ibid. The

ratio of inmates to guards is "well within the

acceptable ratio,” and incidents of violence,

while not uncommon, have not increased out of

proportion to inmate population. Id., at

1014-1015, 1016-1018. Plumbing and lighting

are adequate. Id., at 1015. The prison has a

modern, well-stocked library, with an adequate

law library. Id., at 1010, 1010, n. 2. It has

eight schoolrooms, two chapels, a commissary,

a barber shop, dining rooms, kitchens, and

workshops. Ibid. Virtually the only serious

complaint of the inmates at the Southern Ohio

Correctional Facility is that 1,280 of the

1,620 cells are used to house two inmates.

452 U.S. at 365.

The 1.8.P. is not comparable to the Southern Ohio

Correctional Facility in any of these descriptions. The I.S.P.

is a very old prison “which has been in existence at the present

location approximately one hundred twenty years." Supplemental

Appendix at B-12. The cell blocks at the I.S.P. have nothing

equivalent to the day rooms to expand the cell space available to

the inmates. In contrast, the inmates at the I.S.P. are confined

in very small cells for unreasonable periods of time. The

seventh circuit found that “overcrowding also has resulted in

extremely limited time for outside recreation and unreasonable

periods of time some prisoners must spend locked in exceedingly

cramped cells." Appendix at A-13.

ol Fe

The record in this case clearly demonstrates that the I.S.P.

is being utilized far beyond its capability. Age and neglect

have produced a physical facility with very limited usage. The

limitations of the physical plant are compounded by shortages of

staff and supplies resulting from limited funding. The court of

appeals found that there has been "an extreme shortage of prison

personnel in recent years." Appendix at A-13.

The personnel at the I.S.P. are not only deficient in their

numbers, they are not adequately trained, (TR 20; 579-80) and they

are inexperienced. Low pay and unsafe working conditions contri-

bute to a turnover rate in excess of 30 per cent per year. MTR

18-23. The security at the I.S.P. is provided by a poorly paid,

untrained custody staff, one third of whom are new at any given

time.

The district court and the court of appeals were obligated

by the Chapman opinion to apply the Chapman eighth amendment

standard to the conditions of confinement at the I.S.P. "Courts

certainly have a responsibility to scrutinize claims of cruel and

unusual confinement, and conditions in a number of prisons, espe-

cially older ones, have justly been described as ‘deplorable’ and

*sordid.'" Rhodes v. Chapman. 452 U.S. at 352.

Judge Sharp discharged that responsibility in the following

manner: “The analysis is that of the Eighth Amendment which com-

pels consideration of the amalgam of conditions, past, present

and future, which make up the prison. .. . This [population]

ceiling arises from the Court's determination of the total capa-

bility of the correction system at the I.S.P." Appendix at A-4.

The court of appeals agreed that “at current population

levels Michigan City's physical and personnel resources are so

overtaxed that unnecessary suffering is serious and inevitable."

Appendix at A-13. The petitioners are asking this overworked

-18-

=

Court to duplicate the review performed by the court of appeals.

In Chapman, this Court cautioned lower courts that "“[(iJn

assessing claims that conditions of confinement are cruel and

unusual, courts must bear in mind that their inquiries ‘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 v. Chapman, 452

U.S. at 351.

Judge Sharp and the court of appeals unquestionably followed

this Court's admonition. Judge Sharp said, “(t]his Judge has

indicated from the beginning of this case to the present time, a

complete and utter distaste for having to cross that Rubicon

which separates the federal government from the state government

and enter into the morass of the day to day operation of the

prison." Supplemental Appendix at B-15. In a pre-trial hearing

on March 19, 1979, Judge Sharp said, "(t]he Judiciary should stay

its hand, except where it's clearly mandatory in a constitutional

sense." Court Proceedings, March 19, 1979 in Cause No. 79-32 at

page 12.

The conditions at I.S.P. are nearly identical to many other

cases in which broad, intrusive remedies have been ordered by

the federal judiciary. The I.S.P. is similar to "Old Max" the

institution at issue in Ramos v. Lamm, 639 F.2d 559 (10th Cir.

1980); cert denied, 450 U.S. 1041. On similar facts the district

court in Colorado utilized the full breadth of the federal judi-

cial power to remedy the unconstitutional conditions. Even a

brief comparison of the two cases demonstrates vividly the

restraint exercised by Judge Sharp. On remand from the court of

appeals the district court ordered the following actions and much

more:

l. 60 square feet of space for each

person;

2. Lighting at 30 foot candles in each

cell;

3. 10 cubic feet of fresh air per inmate

in all living areas;

4. Reduce noise levels to 60 dB(A) where

possible;

Ss. Hot and cold running water in each

cell;

6. Required written daily routine of

housekeeping and minimal level of cleanliness;

V6 Unsanitary blankets and mattresses

replaced;

8. Required preventive maintenance

program;

9. Fire safety must satisfy Code;

10. Regular fire drills;

ll. Buildings shall meet all building and

electrical codes;

12. Inmates must be provided personal

hygiene materials;

13. Procedure required for maintaining

inventory of inmates personal property;

14. Staff shall be provided adequate

training.

See, Ramos _v. Lamm, 520 F.Supp. 1059,

1062-65 (D. Colo. 1981)

Remedies of the kind imposed in Ramos do inject the federal

judiciary in the day to day operation of the prison. The record

in the present case would have supported a similar broad consti-

tutional holding and remedy, but the lower courts exercised

restraint.

~20-

Ruling on a motion filed by petitioners pursuant to Rule

59(e), Pederal Rules of Civil Procedure, Judge Sharp said, "(t]his

Court was fully aware of the evidence alluded to by the defen-

dants, understood the ramifications of its order in regard to

population ceiling, and in light of the evidence can only con-

sider said order restrained." Appendix at A-4.

The court's restraint produced an order which will have no

negative impact on the day to day operation of the I.S.P. The

population ceiling will restrict the flexibility of state offi-

cials who decide to which prison each individual inmate should be

assigned, but will not interfere in any way with the administra-

tion of the I.S.P. The order requires no ongoing scrutiny by the

court, no periodic compliance reviews and no subsequent judgments

as to whether the defendants have complied with the court's

order. The memorandum opinion reflects a diligent effort by the

court to decide the case on the narrowest possible constitutional

grounds and to impose the narrowest possible remedy, and it suc-

ceeded. Any narrower holding would have constituted a total abdi-

cation of the court's responsibility as defined in Chapman.

The United States Court of Appeals for the Seventh Circuit

held that the district court was too restrained in ruling on the

adequacy of the medical care at the I.S.P. The district court

judge's “utter distaste" for entering "the morass" led to an

erroneous application of the standard of Estelle v. Gamble, 429

U.S. 97, 97 S.Ct. 285, 50 L.Ed. 251 (1976). The record compels

the court of appeals' conclusion that “the record contains suf-

ficient evidence of repeated instances of negligent medical

treatment together with evidence of general systemic deficiencies

to establish that there is a deliberate indifference to serious

medical needs such that unnecessary suffering is inevitable."

Appendix at A-8.

-21l-

—

This Court recognized in Gamble that:

An inmate must rely on prison authorities to

treat his medical needs; if the authorities

fail to do so, those needs will not be met.

In the worst cases, such a failure may

actually produce physical “torture or a

lingering death," In re Kemmler, supra, the

evils of most immediate concern to the draf-

ters of the Amendment. In less serious cases,

denial of medical care may result in pain and

suffering which no one suggests would serve

any penological purpose. 429 U.S. at 103.

The petitioners' .contention that the judgment of the seventh

circuit was based on “unrelated and isolated incidents” is a bla-

tently erroneous characterization of that court's opinion.

Petition for Writ of Certiorari at 14. The unanimous decision of

the court of appeals is plainly based upon a careful evaluation

of the entire, lengthly record. The “isolated incidents" are

merely examples of what is contained in the record. The court

said, “[wle think the record contains sufficient evidence of

repeated instances of negligent medical treatment together with

evidence of general systemic deficiencies to establish that there

is deliberate indifference to serious medical needs such that

unnecessary suffering is inevitable. For example, ... ."*

Appendix at A-8 (emphasis added). Following the “for example"

the court referred to the evidence which petitioners characterize

as “isolated incidents."

Petitioners' attack on the opinion of the court of appeals is

based on the erroneous principle that the court of appeals is

obligated to identify, in its opinion, each piece of evidence

which it deems to support the judgment. No authority for this

principle is cited by the petitioners because no such principle

exists. The opinion gives some examples of the evidence in the

record, but it did not include in the opinion, nor could it be

expected to include in the opinion, a recitation of all evidence

-22-

in the 2,000 plus page record which supports its conclusion.

The petitioners’ prayer for relief from this Court on the

medical care judgment is identical to its prayer on the

overcrowding judgment. The petitioners would have this Court

duplicate the review performed by the United States Court of

Appeals for the Seventh Circuit. This request is not a "special

and important reason" for this Court to grant the Writ of

Certiorari.

CONCLUSION

The Petition for Writ of Certiorari does not state any

"special and important" reason why this Court should grant the

Writ of Certiorari. The United States Court of Appeals for the

Seventh Circuit used the proper Eighth Amendment standards in

deciding this case and another appellate court review of the

lengthy record would be duplicative. The Petition For Writ of

Certiorari to the United States Court of Appeals for the Seventh

Circuit should be denied.

"Ve. submitted,

0 eS le

WILLIAM E. MARSH

(Counsel of Record)

PATRICIA L. BROWN

MICHAEL R. MILSAP

Legal Services Organization

of Indiana, Inc.

107 North Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

317/639-4151

ATTORNEYS FOR RESPONDENTS

-23-

Few fr

ORIGINAL «er

} NO 83-pee DEC 19 1983

Se

RO) oh Orr

» 8 IN os ey rar cae CLERK

SUPREME COURT OF THE UNITED STATES uP OURT

~ OCTOBER TERM 1983 a MT. US. |

GORDON H. FAULKNER, et al.,

Petitioners,

vs.

BRUCE D. WELLMAN, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENTS' MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

“WILLIAM E. MARSH

(Counsel of Record)

MICHAEL R. MILSAP

PATRICIA L. BROWN

LEGAL SERVICES ORGANIZATION

OF INDIANA, INC.

107 North Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

Telephone: (317) 639-4151

Attorneys for Respondents

RESPONDENTS’ MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondents Dwight Walker and Billie R. Adams, by counsel

respectfully move pursuant to 28 U.S.C. §1915 and Rule 46, Rules

of the Supreme Court of the United States for leave to proceed in

forma pauperis in this cause.

The undersigned serves as counsel for a class consisting of

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

the Indiana State Prison, Michigan City, Indiana." Supplemental

Appendix at B-15 and B-21. Only two of the named plaintiffs, who

are the representatives of the class, are currently confined at

the Indiana State Prison. The affidavits of those two, Dwight

Walker and Billie R. Adams are attached hereto.

Respondents did, with leave of the court, proceed in forma

pauperis in the United States Court of Appeals for the Seventh

Circuit in this action.

Respondents did not seek leave to proceed in forma pauperis

in the United States District Court for the Northern District of

Indiana in this action.

WHEREFORE, Respondents, Dwight Walker and Billie R. Adams,

individually and as representatives of the class certified by the

district court, pray that they be allowed to proceed in forma

pauperis in this Court without prepayment of fees and costs or

security therefor.

Re: coe

ILLIAM E. MARSH

(Counsel of Record)

MICHAEL R. MILSAP

PATRICIA L. BROWN

LEGAL SERVICES ORGANIZATION

OF INDIANA, INC.

107 Nortiu Pennsylvania Street

Suite 300

Indianapolis, Indiana 46204

Telephone: (317) 639-4151

Attorneys for Respondents

om & 2ervesv a2 2589 erwe st wee We jews ower 2 & BNW Ww eee

IN FORMA PAUPERIS

I, Billie R. Adams, being first duly sworn, depose and say

that I am the Respondent in the above entitled case; that in sup-

port of my motion to proceed without being required to prepay

fees, costs or give security therefore, I state that because of

my poverty I am unable to pay the costs of said proceedings or

give security therefore; and 1 believe I am entitled to redress.

I further swear or affirm that the following statements

relating to my ability to pay the costs of participating in this

proceeding are true.

1. I am presently incarcerated as an inmate at the Indiana

State Prison in Michigan City, Indiana. I am employed as an

inmate worker inside the prison where my daily wage scale

F/.oe I have been continuously incarcerated at the Indiana

State Prison since 1972 , and have had no

employment other than inmate labor during that period of time.

2. Within the last twelve months, I have received no income

from a business, profession or other form of self employment, or

in the form of rent payments, interests, dividends or any other

source.

3. My only cash or checking or savings account is my inmate

account at the Indiana State Prison and the balance in my inmate

account is f4 s ‘J .

4. I do not own any real estate, stocks, bonds, notes,

automobiles or other valuable property.

5. No other persons are dependent upon me for support.

that the foregoing representations are true and accurate to the

best of my knowledge, information and belief.

DATED: W118 [3 _ Belle Od arna__

Subscribed and affirmed before me a Notary Public this [EH

Leanren. be; 1983.

Mnikintih

ary Public (signature)

TOwWW [egWAco Baenes

Notary Public (printed)

My Commission Expires: County Residence:

My Commission Expires October 7, 196 olay

day o

I, Dwight Walker, being first duly sworn, depose and say

that I am the Respondent in the above entitled case; that in sup-

port of my motion to proceed without being required to prepay

fees, costs or give security therefore, I state that because of

my poverty I am unable to pay the costs of said proceedings or

give security therefore; and I believe I am entitled to redress.

I further swear or affirm that the following statements

relating to my ability to pay the costs of participating in this

proceeding are true.

1. I am presently incarcerated as an inmate at the Indiana

State Prison in Michigan City, Indiana. I am employed as an

inmate worker inside the prison where my daily wage scale

‘

is JS]. 10 I have been continuously incarcerated at the Indiana

: ia

State Prison since Fes. 6 4/975 , and have had no

employment other than inmate labor during that period of time.

2. Within the last twelve months, i have received no income

from a business, profession or other form of self employment, or

in the form of rent payments, interests, dividends or any other

source.

3. My only cash or checking or savings account is my inmate

account at the Indiana State Prison and the balance in my inmate

/

account is § £0. g@ ‘

ye

4. I do not own any real estate, stocks, bonds, notes,

automobiles or other valuable property.

5. No other persons are dependent upon me for support.

a? vVereygut MSsAT. sg eee eum MEME uo peeves 405 we | el Re fe

that the foregoing representations are true and accurate to the

best of my knowledge, information and belief.

DATED: WVUVE// BEA LZ, LI22 i

DWIGH®@/ WALKER

Subscribed and affirmed before me a Notary Public this 25

day of MOVEMBER , 1963.

Notary Public (printed)

My Commission Expires: County of Residence:

CclyBeR l/ 17F6 LA PORIJE