Appendix — Soto v. Dickey

ij. =e & &

sac ae i4,) IP

84-1327 BAN 31 1985

ALEXANDER L. STEVAS,

CLERK

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1984

CARLOS S. SOTO and ROBERT

DEMALLORY, on behalf of

themselves and all others

Similarly situated, Petitioners

Ve

WALTER J. DICKEY, WARREN

YOUNG and THOMAS BORGEN.

ON WRIT CF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

APPENDIX IN S!UPPORT OF

PETITION FOR WRIT OF CERTIORARI

Peter J. Stone

Counsel of Record

2100 Marine Plaza

Milwaukee, Wisconsin

53202-4894

Tele: (414) 271-8210

Counsel for Petitioners

Of Counsel:

Peter L. Gardon

Whyte & Hirschboeck S.C.

Milwaukee, Wisconsin

53202-4894

lu

TABLE OF CONTENTS

Soto v. Dickey, Nos. 83-2380, 3-56

83-2381, Slip. Op. (7th Cir.

September 20, 1984) [Opinion

of the Appellate Court as

it was entered on September 20,

1984)

Soto v. Cady, Nos. 80-C-146, 57-116

80-C-321, Slip. Op. (E.D.

Wis. June 29, 1983) [Dis-

trict Court's Opinion,

Findings of Fact and

Conclusions of Law]

Soto v. Cady, No. 80-C-146, 117-118

Judgment (E.D. Wis.

June 29, 1983) [District

Court's Judgment]

Soto v. Cady, No. 80-C-146, 119-148

Decision and Order

(E.D. Wis. February 22,

1982) [Order denying

plaintiffs' motions for

preliminary injunction

and summary judgment]

Soto v. Dickey, Nos. 83-2380, 149-150

83-2381, Judgment (7th

Cir. September 20, 1984)

[Appellate Court's

Judgment]

Soto v. Dickey, Nos. 83-2380,

83-2381, Order (7th Cir.

November 5, 1984) [Order

amending opinion and

denying petition for

rehearing with suggestion

for rehearing en banc]

4 Wis. Admin. Code HSS 306.01,

306.03, 306.06, 306.08

4 Wis. Admin. Code HSS 306.08

(as amended, effective

November 1, 1984)

Page

151-152

153-159

160-167

UNITED STATE COURT OF APPEALS

For the Seventh Circuit

Nos. 83-2380, 83-2381

CARLOS S. SOTO and ROBERT DeMALLORY on

behalf of themselves and all others

Similarly situated,

Plaintiffs-Appellees,

vs.

WALTER J. DICKEY, DONALD CLUSEN, and

GERALD HERRINGA,

Defendants-Appellants.

CARLOS S. SOTO and ROBERT DeMALLORY on

behalf of themselves and all others

Similarly situated,

Plaintiffs-Appellees,

vs.

WALTER J. DICKEY, DONALD CLUSEN, and

GERALD HEERINGS,

Defendants-Appellants.

Appeal from the United States

District Court for the Eastern

District of Wisconsin.

Nos. 80-C-146 and 80-C-321---

Terence T. Evans, Judge.

ARGUED MAY ll, 1984--

DECIDED SEPTEMBER 20, 1984

Before FLAUM, Circuit Judge, PELL,

Senior Circuit Judge, and KELLAM,

Senior District Judge.*

KELLAM, District Judge. Alleging

violation of their constitutional

rights under the Eighth and Fourteenth

Amendments to the United States

Constitution, and of Rules and

Regulations of the Waupun Correctional

Institution through the improper use

of mace, a trade name for tear gas,

and similar chemical agents, in the

adjustment center at said institution

in the State of Wisconsin, Carlos S.

Soto and Robert DeMallory (Mallory)

instituted a class action pursuant to

42 U.S.C. §1983, Appeal No. 83-2380,

for injunctive and declaratory relief.

*The Honorable Richard B. Kellam,

Senior District Judge for the Eastern

District of Virginia, sitting by

designation.

Carlos S. Soto, also instituted a

separate action for damages,

injunctive and other relief, Appeal

No. 83-2381, pursuant to 42 U.S.C.

§1983, for an alleged unlawful macing

on December 13, 1979. The incident

complained of by Soto in his damage

action is also one of the incidents

forming a part of the complaint in the

Class action. The named defendants

were the administrator of the

Wisconsin Division of Corrections,

Superintendent of the Waupun

Correctional Institution (WCI) and

Assistant Superintendent of Security

at WCI, and their replacements. Tried

to the court, it rendered its decision

on June 29, 1983, granting declaratory

and injunctive relief in each action,

but denying damages to Soto. The

trial court held that the defendants'

policies and practices relating to the

-6-

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use of chemical agents in the

Adjustment Center (AC) at WCI violated

Pplaintiffs' constitutional rights

under the Eighth and Fourteenth

Amendments of the United States

Constitution and were in violation of

the Division of Corrections

Administrative Regulations, Chapter

HSS 306.08. The court issued an

injunction restricting the use of

chemical agents against inmates,

except in specific circumstances set

forth in its order. In the action for

damages, the trial court held that a

good faith immunity defense was

available to defendants and declined

to award damages to Soto.

WCI is a maximum security prison,

designed for 810 inmates, but having a

population of some 1100 or more during

-7-

the period in question. The AC, the

major segregation facility within the

prison, contains 67 cells, 59 of which

are arranged in two tiers on the main

floor, with the remaining eight cells

in the basement. Fifteen of the cells

have a wooden outer door in addition

to the iron bar doors, and are

referred to as double door or wooden

door cells. A wire mesh cage in the

AC, approximately four feet square and

10 feet high, is used for conducting a

strip search of inmates. Inmates are

sent to the AC from the general

population because of violation of

prison rules, such as possession of

contraband, theft, refusing to go to

work, fighting with prisoners or

staff, disobeying rules and refusing

to obey orders. Because the average

population in the AC during the course

of this case numbered about 80,

-8-

inmates were, at times,

double-celled. The AC in this maximum

security prison has been described as

the "end of the line."

When mace is used, it is sprayed

from a canister approximately two

inches in diameter, about five and

one-half inches high and contains

approximately four and one-half

ounces, the equivalent of

approximately 35 one-second bursts.

It vaporizes upon contact with the

human body or other surfaces. From

January 1979 until the middle of

November 1982, about 130 macing

incidents occurred in the AC, or about

2.7 macings per month. Whenever mace

is used, a written report of its use

must be made by the correctional

officer, giving information regarding

its use and the reasons therefor.

These reports are reviewed by the

-9-

Assistant Superintendent, or in his

absence, by one designated by him.

Only a supervisor may authorize the

use of mace, and he is usually the one

summoned from outside of the AC. He

must be on the spot to authorize its

use. While excessive or improper use

of a chemical agent can cause some

injury, during the four and one-half

years of use in the AC there is no

evidence in the record or documented

at WCI or the AC showing any serious

Or permanent injury from the use of a

chemical agent. Inmates will

generally experience itching,

irritation or discomfort for a period

of time from its use, but washing with

water will generally alleviate any

discomfort. The procedure prescribed

following the use of mace is to have

the inmate shower, have his eyes

rinsed out, and change his clothing.

-10-

This usually gives immediate relief of

any discomfort.

If.

Without exception, the

institutional officials and officers

were of the opinion that the use of

mace was much more humane and

effective than a flesh to flesh

confrontation with an inmate. That

is, whenever it is necessary to move

an inmate from his cell or for an

officer to enter the cell, the

procedure used is to have the inmate

come to the front of the cell and be

handcuffed so that he can be better

controlled if he is to be moved, or if

the officer needs to enter the cell.

If he refuses to come to the front of

the cell to be handcuffed, there are

few options open to the institution,

elie

one is that three or four guards,

suited up in Emergency Response Unit

gear (ERU), must enter the cell and

physically overpower the inmate and

place him in handcuffs. Experience at

WCI established this often resulted in

serious injury to staff or inmate, or

both.

Gerald Heeringa, Assistant

Superintendent in Charge of Security

at WCI, was responsible for designing

and implementing the chemical agency

policy upon his return to WCI in

1977. During 11 months of 1977, there

were forty one serious assaults on

correctional officers, and numerous

inmates and staff were injured.

Heeringa, along with Superintendent

Israel, Major Kahelski and others

testified, without contradictions,

that since the use of a chemical

agent, rather than physical force, the

o) 2<

number of assaults upon and injuries

to staff and inmates had been

drastically reduced. In fact, the

threat of the use of mace, except in a

few instances, brings about compliance

and in most instances, avoids any

necessity of physical force.

The district court found that the

inmates see the use of mace as a

serious form of force, while the

institution sees it as a substitute

for actual physical force and the most

humane and least harmful method of

dealing with obstinate and dangerous

inmates. The fact is, that in most

instances here mace was used, the

inmate immediately complied with the

order from the officer, whether it was

to be handcuffed in order to remove

him from his cell or for other

action. The officer was thus

permitted to perform his duty without

“2%<

physical confrontation between staff

and inmate. In some of the instances

complained of by the plaintiffs, they

had told the officers they would not

comply with the order unless they were

maced, and when maced, they

immediately complied.

The institution is well aware of

the need for concern in dealing with

the inmates in AC. Fortunately, as

the trial court found, most of the

inmates sent to AC serve their stay

and are returned to the general

population. A few create most of the

problems. Over more than a four year

period mace was used only 130 times or

two and a fraction times a month, and

without a single serious injury.

IIlft.

The provisions of the Wisconsin

Administrative Code, Chapter HSS 306,

at@e

deals with security at its

institutions of confinement.

Subsection HSS 306.08 prescribes that

chemical agents may be used only to

Subdue an inmate who poses an

immediate threat of bodily injury or

death to another or to regain control

of the institution or a part of it.

In confined or close areas only CN or

CS chemical agents and canister dust

chemical agent may be used, and the

manufacturer's safety instructions

must be followed. The use must be

authorized by the Superintendent, and

may only be discharged by a

correctional officer, supervisor or by

a trained staff member under the

immediate supervision of such

Supervisor, who has been properly

trained in its use. After use, the

inmate shall be examined by the

medical staff, have their eyes cleaned

=) 5-

with water and be provided with a

change of clothes. An incident report

must be submitted to the director of

the Bureau of Institutions.

The district court found that

defendants had used mace in violation

of the guidelines set out in the

Wisconsin Administrative Code, HSS

§306.08, and that since its use did

not comply with the above code, it

constituted a violation of the

Fourteenth Amendment's due process

provisions.

IV.

Turning to the more detailed

testimony of the five inmates who

testified in this case, we are mindful

that under Rule 52 of the Federal

Rules of Civil Procedure, we are bound

by the findings of fact of the trial

sY=

ere. we

court, unless clearly erroneous. This

rule, however, does not apply to

conclusions of law. Pullman-Standard

v. Swint, 102 S.Ct. 1781, 1789 (1982),

Tankersley v. Albright, 514 F.2d 956,

966 (7th Cir. 1975). Rule 52 is

particularly applicable where the

findings are based primarily upon the

credibility of the witnesses, Lee v.

National Can Corporation, 699 F.2d

932, 936 (7th Cir. 1983), unless the

reviewing court, after reviewing the

evidence, is left with the definite

and firm conviction that a mistake has

been committed. Commissioner of

Internal Revenue v. Duberstein, 363

U.S. 278, 291, 80 S.Ct. 1190, 1200

(1960); Klockner, Inc. v. Federal Wire

Mill Corp., 663 F.2d 1370, 1375 (7th

Cir. 1981). An “appellate court must

set aside the trial court's findings

if it concludes that they are ‘clearly

ai Po

erroneous.'" Kelly v. Southern

Pacific Company, 419 U.S. 318, 323, 95

S.Ct. 472, 475 (1974).

"Evaluations of evidence reached

by the accurate application of

erroneous legal standards are

erroneous evaluations." Protective

Committee, etc. v. Anderson, 390 U.S.

414, 445, 88 S.Ct. 1157, 1173 (1968).

The five inmates, including the

two named plaintiffs, testified to

instances in which they were maced.

Admitted as exhibits in the case were

reports filed by the supervisors in

some 130 instances in which they had

used mace at WCI over a four and a

fraction years period. The trial

court's findings, upon which it

determined to issue its injunction,

set out that most of the instances of

macing involved situations where

inmates were locked in their cells or

-18-

in the strip cage; that witnesses

Mallory, McAdoo, McKinley and Soto

were maced under those conditions;

that most conduct violations in the AC

were for disrespect and disobeying

orders; that most of the inmates sent

to AC are respectful to officers, do

their adjustment time and are returned

to the general population; and that

the procedures for the use of a

chemical agent in the AC do not

require that the officer in charge

create a show of force by gathering

other correctional officers and

suiting them up in ERU before the

chemical agent was usea.2/ The ERU

gear consists of a helmet with a flip

down face guard, leg guards, a four

l/rne record establishes that on

the occasion of each of the macings

referred to, there were numerous

officers present.

-19-

and one-half foot high plastic shield

used to push an inmate in the

direction it was desired he move, a

jump suit or type of coveralls made of

polyester material, gloves and a

wooden baton. In addition to the

above, the trial court's opinion sets

out that chemical agents have been

used against inmates who were throwing

liquids from their cells, yelling

obscenities, refusing to remove a book

from the butt of the door, refusing to

return a meal tray, refusing to

properly submit to a strip search, and

refusing to be double-celled, and that

some inmates suffered the effects from

macing not directed to them.

Many of the findings made by the

trial court are supported by the

evidence. Where the trial court erred

was in the conclusions reached from a

consideration of only a part of the

-20-

eee

evidence. Some of the findings leave

out facts clearly established by

credible, material and uncontradicted

evidence. For instance, the trial

court's finding that inmates were

maced while locked in their cell or in

the strip cage, or handcuffed, is

Supported by evidence. But, such

findings do not set forth the reason,

necessity or basis for the macing, and

the evidence relative to the incident.

Where the trial court found that

inmates were maced to create and

preserve an atmosphere of discipline,

to gain compliance with non-emergency

orders, to stop yelling obscenities,

stop throwing liquids from their

cells, refusing to move a book from

the butt of the wooden door to a cell,

refusing to return a meal tray, and

merely refusing to be double-celled,

they are clearly erroneous. While

=a

McKinley, McAdoo, Mallory and Soto

each asserted they were passive,

locked in their cells, had not made

threats against anyone, did not

possess a weapon, had violated no rule

at the time they were maced, and that

there was no legitimate reason to mace

them, the evidence established the

contrary. The record and exhibits

uncontradictedly establish that when

an inmate who is hollering, rattling

the bars, yelling obscenities at the

staff, throwing objects from his cell

at the staff, refused to return a meal

tray, blocks the closing of a door,

refuses to be double-celled or refuses

to comply with direction, he is

ordered to come to the front of the

cell and put his hands out so that he

can be handcuffed, guards can then

enter the cell and remove a meal tray

or an object used to throw liquid; and

=22-

Oh ee en ee eee

where necessary, moved him to another

cell with a wooden door which can be

closed to prevent his hollering or

yelling from disturbing others, or

prevent him from throwing liquid or

other objects on the officers, or

double-celled or whatever is

appropriate. If he refuses to come to

the front of the cell to be handcuffed

after being ordered so to do, and the

guard cannot prevail upon him to do

sO, a supervisor is called. The

Supervisor then attempts to persuade

the inmate to comply with the order.

If the inmate refuses, he is then

ordered by the supervisor to come to

the front of the cell and be

handcuffed. If he still refuses, he

is told that unless he does do so, he

will be maced. If he still refuses,

mace is then used. In most every

instance, the inmate then complies

= 23-

with the order. He is handcuffed and

removed from the ceil to permit a

guard to enter, and when appropriate

the inmate is moved to another cell.

Reference in the trial court's opinion

to inmates Mallory, McAdoo, McLaughlin

and Soto requires specific comment.

The evidence shows without challenge

that the first four were a serious

disciplinary problem. They were

involved in many violations of the

rules and orders of the institution,

and spent much time in the AC.

Mallory testified that of the eight

years in confinement he had spent

approximately six of them in the AC.

McAdoo, McLaughlin and Soto each had

spent about two years in the AC.

Mallory and McAdoo admitted they had

been previously found guilty of

assaulting a staff officer. Soto

admitted he had assaulted numerous

=24-

prisoners and staff officers while he

was in a Pennsylvania prison and that

he had been involved in fights with

several inmates at WCI. He admitted

he struck officer Harkinson and that

he tried to kick Dr. Bergen because he

thought he was a crackpot. He

admitted throwing his dinner tray at

an officer on July 15, 1981. He

admitted he was a real problem to get

along with because he wanted to be

himself. He, and the other inmates

were described as unpredictable--

passive at one moment and aggressive

at another. The finding that Mallory

was maced for refusing to return his

meal tray, that McAdoo was maced for

throwing milk on an officer; that

McKinley was maced for refusing to

remove a book so the wooden door to

his cell could be closed, and while he

was in the strip cage; and that Soto

-25-

was maced for refusing to be

double-celled is only a part of the

evidence. What the finding did not

include was the uncontradicted fact

that in each instance these four

inmates were maced for refusing to

obey an order to come to the front of

the cell to be handcuffed so that they

could be moved to another cell. 4/

Mallory testified that he refused to

return the meal tray to the

guarda;2/ that Lt. Prieve was

summoned and requested him to return

the tray but he refused.

2/plaintiffs' expert, Dr.

Kirkham, testified it was appropriate

for the guards to handcuff the inmate

before attempting to enter the cell.

3/The plaintiffs' expert

witness, Dr. Kirkham, testified a meal

tray can be used as a weapon; that an

inmate who had refused to return a

tray should not be permitted to keep

it. In fact, he replied “absolutely

not,” and that the rule on return of

trays must be enforced.

-26-

After the lieutenant was unable to

persuade him to do so, the lieutenant

ordered him to come to the front of

the cage and be handcuffed so an

officer could enter the cell and

collect the tray. Mallory refused,

and said the only way he would come to

the front and be handcuffed was if he

was maced. After being maced, he

admitted he came to the front of the

ceil and was handcuffed. The tray was

then removes. 4/

In the instance of inmate McAdoo,

the evidence established numerous

inmates had been throwing articles and

unknown fluids at the officers, and

4/mallory Says that again the

next day he refused to return his tray

and that on that occasion, three or

four guards suited up in ERU gear came

in and removed the tray. There is no

record of such an incident in the

files of the AC, and Assistant

Superintendent Heeringa said that if

such an event occurred, a record would

have been made of it.

o2F=

that mass confusion existed in the

AC. Several inmates had been moved to

controlled status. Captain Nichols

was summoned to the AC. McAdoo

testified he was frustrated because

his request for a tylenol tablet had

not been responded to, and that he

decided he would go up on the first

two officers who came by his cell.

Captain Nichols and Lieutenant Smith

were the victims of milk thrown by

McAdoo. Captain Nichols ordered

McAdoo to come to the front of the

cell so he could be handcuffed. He

refused, and was sprayed with mace,

after which he came to the front of

the cell, was handcuffed, carried to

the strip cage and searched. After

all containers that could be used to

throw a liquid were removed from his

cell, his cell was cleaned and he was

returned.

«26-

Inmate McKinley was maced on two

separate occasions. The first while

in the strip cage for refusing to

spread his buttocks for a strip

search,>/ after being ordered to do

so by the lieutenant. After the

macing guards in ERU gear entered the

cage and completed the search. On the

other occasion inmates had been

throwing objects and liquids at

officers. Captain McLaughlin was

called to the AC. McKinley said he

placed a book in between the butt of

the door and the door facing,

preventing the solid wooden door from

being closed. With it closed, the

5/In Bell v. Wolfish, 441 U.S.

at 558, 99 S.Ct. at 1884, the court

held that a requirement that all

inmates expose their body cavities for

visual inspection as a part of a strip

search conducted after every contact

visit with a person from outside the

institution was not unreasonable and

may be conducted on less then probable

cause.

o29-

inmate could not throw articles at the

officers. Captain McLaughlin ordered

McKinley to remove it./ After he

refused, he was ordered to come to the

front of the cell and be handcuffed.

When he refused he was told he would

be maced if he did not do so. He was

maced and immediately came to the

front of the cage and was handcuffed.

After he was handcuffed at the front

of the cell, he threw milk on the

captain and officer Beam.

Inmate Soto was told he would have

to double-cell. He testified he told

the officer on several occasions he

would not be double-celled, period.

When ordered to pack up his things so

another inmate could be moved in with

him, he testified he said he would not

6/an officer could probably have

removed it, but he would have exposed

himself to having liquids thrown at

him.

-30-

do it. The lieutenant was called and

received the same response. He was

ordered to come to the front of the

cell to be handcuffed but refused. He

was maced and immediately came to the

front of the cell and was handcuffed.

While some of these inmates

asserted they had not been ordered to

come to the front of the cage and be

handcuffed, in every instance, after

they were maced, without further

order, they came to the front of the

cell and were handcuffed.

The trial court found that inmates

were not given a shower or attention

for their eyes after being maced.

Such finding overlooks not only the

testimony of the staff but also the

testimony of the inmates. In all

instances but one the inmates were

offered or given a shower. In that

instance, the unit was cn lockdown and

-3l-

the water was cut off because the

inmates were throwing it from their

cells. In each instance the inmate

was furnished clothing, and a nurse

rinsed out the eyes of the inmates,

except where the inmate refused to

have it done. While the findings say

the cells were not cleaned, in all

instances referred to except one, the

cell was cleaned or the inmate removed

to another cell. Lastly, the court

found the inmate Johnson suffered some

Slight effects from the macing of

other inmates by the mace reaching his

cell and that McKinley said he had

some ill effects from the macing of

others. We need not deal with these

issues because under the evidence in

this case they do not reach

constitutional proportions.

-32-

V.

In providing security, the

institution must be concerned about

the safety of its staff as well as of

its inmates. It has the duty to

protect the staff from assaults,

whether by physical attack upon them,

or whether by the throwing of objects

or liquids on them. The same kind of

duty exists to protect other inmates.

The inmates in AC are there for

failure to obey the rules and

regulations of WCI, such as possession

of contraband, fignting, assault on

staff officers and so on.

Disturbances arise. Inmates become

edgy. They get noisy and almost out

of control. They are described as

unpredictable-- sive at one time and

aggressive the next moment. On one

occasion 26 inmates broke up meal

-33-

trays and made weapons of them.

Assistant Superintendent Heeringa

testified he carried scars on his body

from opening a cell door of an inmate

who appeared passive, but became

violent. Injuries occur to the staff

even when they enter the cell in the

ERU gear. While the helmet covers

part of the fact, the helmets can and

have been knocked off the head of the

guards. Too, the helmet does not

cover the full face or protect the

front of the neck. One guard dressed

in the ERU equipment had his arm cut

by a razor blade deten the inmate had

taped to his hand, requiring more than

90 stitches.

When an order is given to an

inmate there are only so many choices

available to the correctional

officer. If it is an order that

requires action by the institution,

=34-

and the inmate cannot be persuaded to

obey the order, some means must be

used to compel compliance, such as a

chemical agent or physical force.

While experts who testified on behalf

of the plaintiffs, suggested that

rather than seek to enforce orders, it

was possible to leave the inmate alone

if he chooses not to obey a particular

order, and wait him out, experience

and common sense establish that a

prison cannot be operated in such a

way.

Discipline in a maximum security

correctional institution no doubt is

difficult, but it is essential if the

prison is to function and provide for

the care, safety and security of the

staff and inmates. Services to

provide food, clothing, health,

medical, cleaning, laundry and all

other services would come to end

-35-

without discipline. Mob rule would

take over. There would not, and could

not, be any protection for staff or

inmates. Orders given must be

obeyed. Inmates cannot be permitted

to decide which orders they will obey,

and when they will obey them. Someone

must exercise authority and control.

One can quickly reason what would

happen in a maximum security prison

without proper discipline.

The evidence establishes that it

is the policy and practice at WCI for

officers to enter a cell to enforce

compliance with orders. Inmates are

and must be required to obey orders.

When an inmate refused to obey a

proper order, he is attempting to

assert his authority over a portion of

the institution and its officials.

Such refusal and denial of authority

places the staff and other inmates in

=36-

danger. One of the plaintiffs' expert

witnesses agreed that the institution

cannot permit an inmate to violate a

rule or disobey an order and that

action must be taken to compel

compliance with a lawful order.

VI.

Imprisonment carries with it the

circumscription or loss of many

Significant rights and in some cases

the complete withdrawal of certain

rights, all of which are justified by

the considerations underlying our

penal system. Hudson v. Palmer,

U.S. ’ S.Ct. » 52 L.W.

5052 (1984). Prisons are places of

confinement of persons who have

demonstrated their inability to

control and conform their behavior to

the legitimate standards of society.

o37-<

Most of those sent to the AC have

Gemonstrated their lack of respect for

the rules and regulations of the

institut‘on and their disregard of the

rights of others. A reflection upon

the facts demonstrate the severe and

grave problem confronting prison

officials. As pointed out in Hudson

v. Palmer, supra, during 1981 and the

first half of 1982, in state and

federal prisons, there were over 29

riots or similar disturbances, a

number of prison personnel were

murdered by prisoners, and over 120

prisoners were murdered by fellow

inmates. In the federal system during

1983, there were 1l inmate homicides,

359 inmate assaults on other inmates,

and 227 inmate assaults on prison

staff. There were in the same system

in 1981 and 1982, over 750 inmate

assaults on other inmates and over 520

-38-

inmate assaults on prison personnel.

With such statistics, we must “strike

the balance in favor of institutional

security" which is “central to all

other correctional goals." Hudson v.

Palmer, supra. Knowledge of the above

facts make it clear that within the

institutions “prison administrators

are to take all necessary steps to

ensure the safety of not only the

prison staff and administrative

personnel, but visitors." Hudson v.

Palmer, supra. See also Bell v.

Wolfish, 441 U.S. 520, 547, 99 S.Ct.

1861, 1878 (1979).

The district court's assertion

that we have recognized the trend

towards restricting the use of

chemical agents misinterprets what we

have said, and the decisions of other

courts.

-39-

In Stringer v. Rowe, 616 F.2d 993,

998 (7th Cir. 1980), we said:

In order to establish a

violation of the Eighth

Amendment, a plaintiff

must show that prison

officials intentionally

inflicted excessive or

grossly severe

punishment on him or

that the officials

knowingly maintained

conditions so harsh as

to shock the general

conscience. United

States ex rel. Miller v.

CEST) (7th Cir. 1973),

cert. denied, Gutierrez

v. Dept. of Public

Safety, 414 U.S. 1146,

34 eet. 900, 39 L.Ed.2d

102 (1974). Courts have

sanctioned the use of

tear gas “when

reasonably necessary

» « « to subdue

recalcitrant

prisoners." Clemmons v.

Greggs, 509 F.2a 1336, 5

The -Tsth Cir. 1975).//

2/This case was before us on the

issue of whether a motion for summary

judgment on behalf of defendants was

justified. Finding a disputed issue

of a material fact, it was remanded

for further proceedings.

-40-

Later in Lock v. Jenkins, 641 F.2d

488, 496 (7th Cir. 1981), we quoted

with approval from Johnson v. Glick,

481 F.2d 1028 (2nd Cir.), cert. denied

sub non, Employee-Officer Jones v.

Johnson, 414 U.S. 1033, 94 S.Ct. 462

(1973) this language:

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 the

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. 481 F.2d at 1033.

Courts should proceed cautiously

in making an Eighth Amendment judgment

for unless the Supreme Court reverses

it, “a decision that a given

punishment is impermissive under the

e¢le<

Ea OA A 8 AME VE

Eighth Amendment cannot be reversed

short of a constitutional amendment,"

so that revisions cannot be made in

the light of further experience.

Rhodes v. Chapman, 452 U.S. 337, 35l,

101 S.Ct. 2392, 2401 (1981); see also

Gregg v. Georgia, 428 U.S. 153, at

176, 96 S.Ct. 2909, at 2926. In

considering whether the Eighth

Amendment has been violated, it must

be rembered that such 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, supra, 452 U.S. at 35l,

101 S.Ct. at 2401. Bell v. Wolfish,

441 U.S. at 539, 99 S.Ct. at 1874.

The Supreme Court in Procunier v.

Martinez, 416 U.S. 396, 404-405, 94

S.Ct. 1800, 1807 (1974) and in Rhodes

242

v. Chapman, supra, 452 U.S. at 35l,

n.16, 101 S.Ct. at 2401, n.16, pointed

out some of the problems of prisoners

and reasons why federal courts adopted

a broad hands-off attitude towards

problems of prison administration, and

the limitations on the scope of

federal review of conditions in state

penal institutions. It said in

Procunier v. Martinez, supra:

Prison administrators

are responsible for

maintaining internal

order and discipline,

for securing their

institutions against

unauthorized access or

escape, and for

rehabilitating, to the

extent that human nature

and inadequate resources

allow, the inmates

placed in their

custody. The Herculean

obstances to effective

discharge of these

duties are too apparent

to warrant explication.

Rhodes v. Chapman, supra, n.16, says:

-43-

We have sketched before

the magnitude of the

problems of prison

administration.

Procunier v. Martinez,

416 U.S. 396, 404-405,

94 S.Ct. 1800, 40

D.Ed.2d (1974). See

generally National

Institute of Justice,

American Prisons and

Jails (1980) (5 Vols.).

It suffices here to repeat:

[T]he problems of

prisons in America are

complex and intractable,

and more to the point,

they are not readily

susceptible of

resolution by decree.

Most require 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, Supra, at

404-405, 94 §.Ct., at

-44-

1807 (footnote

omitted). See also

Wolff v. McDonnell, 418

U.S. 539, 561-562, 568,

94 S.Ct. 2963, 2977,

2980, 41 L.Ed.2d 935

(1974); Jones v. North

Carolina Prisoners'

Labor Union, supra, at

125, 97 S.Ct., at 2537.

Since our decision in

Martinez, the problems

of prison population and

administration have been

exacerbated by the

increase of serious

crime and the effect of

inflation on the

resources of states and

communities. This case

is illustrative. Ohio

designed and built SOCF

in the early 1970’s, and

even at the time of

trial it was found to be

a modern “top-flight,

first-class facility."

Supra, at 2395. Yet, an

unanticipated increase

in the state's prison

population compelled the

double celling that is

at issue. 452 U.S. at

351, 101 S.Ct. at 2401,

n.16.

Central to all other correctional

goals is the institutional

consideration of internal security

-45-

within the correctional facilities

themselves, and “preserving internal

order and discipline are essential

goals that may require limitation or

retraction of the retained

constitutional rights of both

convicted prisoners and pretrial

detainees." Bell v. Wolfish, supra,

441 U.S. at 546, 99 S.Ct. at 1878. If

prison officials are to be free to

take appropriate action to ensure the

safety of inmates and correctional

personnel, they must be accorded

wide-ranging deference in the adoption

and execution of policies and

practices that in their judgment are

needed to preserve internal order and

discipline to maintain institutional

security. Such considerations are

peculiarly within the province and

professional expertise of correctional

officers, and without substantial

-46-

evidence to indicate such officials

have exaggerated their response to

these considerations, courts should

defer to their judgment. Not only are

such administrators in a better

position to know and determine what

action or remedies are needed and

proper, but the operation of our

correctional systems and facilities is

within the responsibility of the

Executive and Legislative branches of

government. Bell v. Wolfish, 441 U.S.

at 547-548, 99 S.Ct. at 1878-1879;

Procunier v. Martinez, 416 U.S. at

405, 94 S.Ct. at 1807. See also, Pell

Vv. Procunier, 417 U.S. 817, 94 §.Ct.

2800 (1974); Hewitt v. Helms, supra.

The Supreme Court has “repeatedly said

both that prison officials have broad

administrative and discretionary

authority over the institution they

manage, and that lawfully incarcerated

-47-

persons retain only a narrow range of

protected liberty interests." Hewitt

v. Helms, 103 S.Ct. 864, 869 (1983).

The Eighth Amendment prohibits the

infliction of cruel and unusual

punishment; that is, the infliction of

excessive or grossly severe punishment

disproportionate to the severity of

the offense, or the unnecessary and

wanton infliction of pain or

infliction of pain without

justification. Eighth Amendment

judgments “should neither be nor

appear to be entirely the subjective

views of judges,” but such "judgments

should be informed by objective

factors to the maximum possible

extent." Rhodes v. Chapman, 452 U.S.

346, 101 S.Ct. at 2399. Hence,

"conditions that cannot be said to be

cruel and unusual under contemporary

standards are not unconstitutional,"

-

and to “the extent that such

conditions are restrictive and even

harsh, they are part of the penalty

that criminal offenders pay for their

offenses against society." Id.

The Supreme Court has never held,

nor have we or any other court of

appeals, so far as we can determine,

that the use of tear gas or a chemical

agent is a per se violation of the

Eighth Amendment, whether an inmate is

locked in his cell or not. What we,

and other courts have held, is that

the appropriateness of the use must be

determined by the facts and

circumstances of the case. We have

held, and now restate that it is a

violation of the Eighth Amendment for

prison officials to use mace or other

chemical agents in quantities greater

than necessary for the sole purpose of

punishment or the infliction of pain.

-49-

Thus, we adhere to what we said in

Stringer v. Rowe, 616 F.2d at 998, set

out above. The use of mace, tear gas

Or other chemical agent of the like

nature when reasonably necessary to

prevent riots or escape or to subdue

recalcitrant prisoners does not

constitute cruel and inhuman

punishment. Lock v. Jenkins, Supra;

Poindexter v. Woodson, 510 F.2d 464,

466 (10th Cir.), cert. denied, 423

U.S. 846 (1975); Clemmons v. Greggs,

509 F.2d 1338, 1340 (5th Cir.), cert.

denied, 423 U.S. 946 (1975); Landman

v. Peyton, 370 F.2d 135 (4th Cir.

1966); Bailey v. Turner, No. 82-6552,

(4th Cir. June 7, 1984);

Donahue v. Maynard, 437 F.Supp. 47 (D.

Kan. 1977), and this is so whether the

inmate is locked in his prison cell or

is in handcuffs, Bailey v. Turner,

supra; McCargo v. Mister, 462 F.Supp.

=$0-

|

813 (D. Md. 1978); Greear v. Loving,

391 F.Supp. 1269 (W.D. Va. 1975). The

"use of the substance (tear gas) in

small amounts may be a necessary

prison technique if a prisoner refuses

after adequate warning to move from a

cell or upon other provocation

presenting a reasonable possibility

that slight force will be required."

Spain v. Procunier, 600 F.2d 189, 195

(9th Cir. 1979). Continuing in Spain,

the court said:

The infliction of pain

and the danger of

serious bodily harm may

be necessary if there is

a threat of an equal or

greater harm to others,

as is reflected in the

doctrine of self defense

which permits one to do

harm to another person

who threatens unlawfully

to do an equal or

greater harm to another.

The responsible institutional

personnel on the spot are in a better

position to determine when its use is

-5l-

necessary than the courts. Clearly,

the use of a chemical agent in

dangerous quantities is justified only

in narrowly defined circumstances but

the use of nondangerous quantities of

the substance in order to prevent a

perceived future danger does not

violate “evolving standards of

decency” or constitute an “unnecessary

and wanton infliction of pain." We

think its use can be justified in

Situations which are reasonably likely

to result in injury to persons or a

substantial amount of valuable

property. 600 F.2d at 196. Prison

officials' responsibility extends to

the protection of the guard, as well

as to the inmates. The “safety of the

institution's guards and inmates is

perhaps the most fundamental

responsibility of the prison

administration." Hewitt v. Helms, 103

-52-

S.Ct. at 872. We should therefore be

extremely cautions before attempting

to prohibit or limit the necessary

meaus by which they may carry out this

responsibility.

The record in this case fails to

disclose that prison officials

unjustifiably used excessive force

against plaintiffs, or other inmates

or that they failed to act in good

faith and with a reasonable belief of

the lawfulness of their actions under

the circumstances. 8/ The actions

were therefore not a violation of the

Constitution, and since not a

violation of the Constitution, "it

does not in itself subject an inmate's

treatment by prison authorities to

judicial oversight." Montayne v.

8/rhe trial court found the

action of the guards in macing Soto

was in good faith.

-53-

Haymes, 427 U.S. at 242, 96 S.Ct. at

2547; Hewitt v. Helms, 103 S.Ct. 869.

The inmates’ argument is that the use

of the chemical agent is greater force

than is necessary to satisfy the

institution's legitimate interest in

maintaining security. However, in the

instances shown in the record the

chemical agent was used for failure of

the inmate to obey a direct order and

the use of mace was a reasonable

response to the institution's

legitimate security concern. The use

of mace is not a per se violation of

the Eighth Amendment. Appellees have

not met their burden of showing that

the defendants intentionally used

exaggerated or excessive means to

maintain discipline and provide the

needed security for the institution.

Nor have they shown it was used to

inflict excessive or grossly severe

-54-

)

|

punishment on them. It is not a

question here of whether the district

court's plan or the institution's plan

for maintaining order and discipline

is best, "but in what branch of the

government is lodged the authority to

initially devise the plan," Bell v.

Wolfish, 441 U.S. at 562, 99 S.Ct. at

1886. The evidence does not establish

that the actions and conduct of the

institution or its personnel, or the

regulations of the institution or

their application violate the Eighth

Or Fourteenth Amendments, or that a

chemical agent has been unjustly or

improperly used.

The decision of the district court

is therefore reversed and these cases

remanded with direction to dissolve

the injunctions issued and to dismiss

=55~

the complaints with direction that

Gefendants recover their costs.

REVERSED AND REMANDED.

A true Copy:

Teste:

Clerk of the United

States Court of Appeals

for the Seventh Circuit

-56-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CARLOS S. SOTO and

ROBERT MALLORY, on behalf

of themselves and all

others similarly situated,

Plaintiffs,

Civil Action

vs. No. 80-C-146

ELMER O. CADY, THOMAS R.

ISRAEL and GERALD HEERINGA,

Defendants.

CARLOS S. SOTO,

Plaintiff,

Vv. Civil Action

No. 80-C-321

ELMER O. CADY,

Administrator, Division

of Corrections of the

State of Wisconsin, et al.,

Defendants.

{June 29, 1983]

DECISION

Case number 80-C-146 is a class

action suit brought on behalf of

-57-

inmates confined in the Adjustment

Center at the Wisconsin Correctional

Institution at Waupun, Wisconsin. The

inmates seek an injunction, or

alternatively declaratory relief,

prohibiting the current uses of

chemical agents ("“mace" hereinafter)

at the prison.

Case number 80-C-321 is an

individual macing suit brought by

Carlos S. Soto, a former inmate at

Waupun. Soto's individual claim for

damages was consolidated and tried

with the class action claims in

80-C-146.

Trial to the court was held in

November, 1982. The first day of the

trial took place at the prison.

During the first day, I heard

_testimony from inmates and visited the

Adjustment Center. The balance of the

trial took place in Milwaukee. The

-58-

following discussion precedes my

formal fincings of fact and

conclusions of law.

I have been to the prison at

Waupun on many occasions. I have also

had a number of opportunities to visit

the prison's Adjustment Center. While

the prison, and particularly the

Adjustment Center, has never been what

one would call a pleasant place, I

have never seen it as dangerously

overcrowded as it was when I was there

during this trial. The prison is, of

course, holding over 300 inmates

beyond its approved capacity. Inmates

in the Adjustment Center are

dangerously doubled up in cells that

are small even for one person. In

short, the situation is an accident

waiting to happen. I believe that the

severe overcrowding at the prison,

-59-

especially in the Adjustment Center,

has contributed significantly to the

tensions that precipitated many of the

incidents about which I have heard

testimony or reviewed reports.

The issues here have not changed

from what they were on February 22,

1982, when I issued a decision denying

a motion for summary judgment in the

Class action. In addition to the

prison documents describing macing

incidents and affidavits of inmates

and guards considered in connection

with the motion, I have now heard

testimony from both sides regarding

several macing incidents.

Robert Mallory testified that he

was maced on February 4, 1981, while

locked in his cell. Mallory refused

to return his plastic meal tray. He

placed the tray on his bed, went to

-60-

the back of his cell and sat down. He

was not violent, did not make threats,

and had no weapons. He was ordered to

return the tray. When he refused, he

was maced. The next day, Mallory

again refused to return a meal tray.

This time, guards, dressed in riot

gear, entered his cell and retrieved

the tray without incident.

Laron McKinley was maced on

November 24, 1980, for refusing to

move a book which was preventing the

closing of an outer wooden cell door.

McKinley was locked behind metal doors

at the time. McKinley was also maced

on September 26, 1980, while he was

locked, naked, in a small strip cage.

He had refused to spread his buttocks

for a search.

Soto, the individual plaintiff in

80-C-321 and a member of the class in

-6l-

80-C-146, was maced on December 13,

1979, while he was locked in a cell

and handcuffed. Soto had refused to

be double-celled with another inmate

whom Soto considered dangerous.

William McAdoo was maced on

October 1l, 1980, for throwing milk on

a correctional officer.

All in all, according to prison

incident reports, about 130 macing

incidents occurred between January 19,

1979 and November 16, 1982. The

incidents differ, of course, in the

degree of disruptive conduct exhibited

by the inmates and in the amount of

mace used by the officers. The

defendants do not seriously dispute

the facts; rather, they state that in

each case direct orders were given the

inmates--for instance, to return a

tray, remove a book, submit to a strip

o62-

search or come to the front of the

cell to be cuffed. When the orders

were disobeyed, according to the

defendants, “mace was applied" to

force compliance.

Plaintiffs argue that the use of

mace under the circumstances described

in this record are in violation of

their Eighth Amendment right to be

free from cruel and unusual

punishment. They also claim that the

macings are in violation of the

reguiations of the State of Wisconsin

under which the prison operates and

that, therefore, the use of mace

violates the inmates' rights under the

Fourteenth Amendment. Defendants

argue that their use of mace is proper

under the Eighth Amendment; that the

plaintiffs have no liberty interest in

the defendants' observation of their

-6§63-

own administrative regulations, so

that no due process claim exists;

and that even if such a claim existed,

defendants are acting within the

regulations.

Cases involving the use of

chemical agents in prisons reveal the

reluctance of the federal judiciary to

get involved with the administration

of state prisons. They show a

recognition on the part of judges that

prison officials are in a difficult

and dangerous business. See, for

instance, Hendrix v. Faulkner, 525

F.Supp. 435 (E.D. Ind. 1981), and

cases cited therein.

The decision of February 22, 1982,

reflects my reluctance to be involved

with the administration of the prison

at Waupun and a recognition of the

Gifficulty of running a prison. At

-64-

that time I stated that it was a short

step from the case law regarding

macing to the “conclusion that the

Incident Reports in the record may, in

some instances, reveal that mace is

employed in a manner not sanctioned by

the Eighth Amendment to the

Constitution." p. 10. I also stated

that defendants’ conduct was likely to

be found in violation of their own

regulations. A preliminary injunction

was denied, however, on the basis that

to grant it would disserve the public

interest:

Because of the serious

and difficult tasks

faced by defendants to

this action, I am

convinced that the

public interest is

served by allowing them

time to reevaluate their

interpretation of their

regulations before being

faced with a federal

court order. p. ll.

o63-

So far as I can tell, the decision

of February 22, 1982, has had no

effect on defendants’ views.

Consequently, I must set aside my

reluctance to become involved in the

administration of the prison and my

hope that the defendants would

recognize that regardless of their

personal views, the law, while not

entirely clear, requires curbs on the

use of chemical agents. The point has

come to be certain that the

constitutional rights of the inmates

are not being violated.

The Eighth Amendment prohibits

punishment which is incompatible with

"evolving standards of decency that

mark the progress of a maturing

society." Estelle v. Gamble, 429 U.S.

97 (1978). The use of chemical agents

in prisons has required courts to

-66-

consider whether its use is compatible

with contemporary attitudes toward

what constitutes cruel and unusual

punishment. Some courts have

Sanctioned the use of tear gas and

other chemicals. See Bethea v.

Crouse, 417 F.2d 504 (10th Cir. 1969);

Washington v. Anderson, 387 F.Supp.

412 (E.D. Okla. 1974). Other courts

in later cases have taken a close look

at the physical effects of chemical

agents and have determined that under

some conditions their use violates the

Eighth Amendment. See Spain v.

Procunier, 600 F.2d 189 (9th Cir.

1979).

Two fairly recent decisions from

the Court of Appeals for this Circuit

have recognized the trend toward

restricting the use of chemical

agents. In Stringer v. Rowe, 616 F.2d

993, 999 (7th Cir. 1980), the court

-67?-

pointed out that while courts in the

past have sanctioned the use of

chemical agents when reasonably

necessary, recent decisions have

“emphasized that use of chemical

agents such as tear gas and mace by

prison officials to subdue individual

prisoners, rather than to quell large

disturbances, should be more

restricted."

In Lock v. Jenkins, 641 F.2d 488

(7th Cir. 1981), the court considered

the use of tear gas and other chemical

disabling agents on pretrial

detainees. The analysis proceeded

under the Fourteenth, not the Eighth

Amendment. However, the court implied

that the issues posed were the same.

Relying on Stringer, supra and Spain,

Supra, the court concluded that only

in “rare occasions" would it be

appropriate to use chemical agents to

control inmates already confined in

their cells. In Lock, supra, the

record shows that the inmates were

engaged in “inciting to riot at a time

of tremendous tension in the prison

following an attempted escape and the

taking hostage of the prison Warden

and several others." The court

concluded:

We believe that the

facts shown regarding

this institute

constitute one of the

rare occasions when the

use of tear gas against

persons locked in cells

was not unjustified.

At 496.

However, as to other incidents

~revealed in the record, the conclusion

was contrary. The use of gas to

retrieve a metal food tray was found

to be constitutionally impermissible.

Also impermissible was the use of a

-6§69-

chemical agent to stop inmates from

shouting and uttering threats:

We have also found

unconstitutional the use

of a chemical agent to

stop unpleasant but not

threatening behavior by

safekeepers locked in

their cells. At 500.

These cases do not offer clear

guidance in all situations as to when

the use of mace is justified and when

it is not. They do, however, indicate

that some of the incidents in the

record before me describe conduct

which violates the Eighth Amendment.

The incidents involve macing of

inmates locked either in a cell or a

Strip cage. There appears to be no

recognition on the part of the

defendants that such macing is highly

questionable. For the most part,

there appears to be no indication that

the capacity of an individual inmate

°70~

for violence is considered in

determining whether mace is used. A

blanket statement that the individuals

in the Adjustment Center are the most

troublesome in the prison system is

not an adequate substitute for looking

at the individual case. Prisoners who

one day may be walking free in the

yard can commit an infraction of

prison rules and the next day be

locked in cells in the Adjustment

Center. In addition, the fact that

one day inmate Mallory was maced for

not returning his food tray and the

next day he was not maced for the same

action shows the apparent arbitrary

nature of the decisions.

In many cases the conduct on the

part of the inmates is passive.

Stopping the inmates' conduct could in

no way be characterized as urgent.

aFi«

me doivent bss albecaatiaaal

Also, some of the reports involved

macing for yelling and shouting,

macings prohibited by Lock. Thus,

even though the requirements of the

Eighth Amendment are not entirely

Clear under the case law, some of the

macings revealed in this record are

violations of the constitutional

rights of the inmates involved.

The Wisconsin Administrative Code

provides somewhat more specific

guidelines for Wisconsn prison

officials. H.S.S. § 306.08 provides

that chemical agents can be used only

in two situations: (1) to subdue an

inmate who poses an immediate threat

of injury or death to another, and (2)

to regain control of an institution or

part of an institution. The

regulations also provide that the use

of chemical agents “shail be

authorized only by the

o72-

Superintendent.” Plaintiffs argue

that defendants have violated these

reguations and therefore have also

violated the inmates‘ due process

rights under the Fourteenth

Amendment. Defendants argue that

"there is no basis in the record that

the plaintiffs had an expectation of a

liberty interest in defendants'

observation of their own

administrative regulations. ..."

Brief, p. 22. In support of this

proposition, defendants cite Shango v.

Gurich, 681 F.2d 1091 (7th Cir. 1982).

Defendants’ argument must be

rejected. A state can create a4

liberty interest “by statute, by rule

Or regulation." Meachum v. Fano, 427

U.S. 215, 229 (1976). The Court of

Appeals for this Circuit has stated

that "a prisoner may have due process

rights as result of entitlements

=73-

> E idiot Sell Uobandindt ee dieah ee, anh a

created by prison regulations ... ."

Arsberry v. Sielaff, 586 F.2d 37 (7th

Cir. 1978); Stringer, supra. The

court again recognized this principle

in Shango, supra. There the court

stated, however, that not every

official pronouncement spawns a

protectible right; specifically, state

granted procedural rights may not in

themselves create a liberty interest.

Shango involved interprison

transfers. The state retained total

discretion to transfer inmates between

institutions for any reason

whatsoever. The state-created right

to have a hearing regarding a transfer

did not alter the state's discretion.

Therefore, there was no “parent

substantive right” underlying the

procedural right. The analysis is

different if the state provides a

substantive right.

-74-

In Olim v. Wakinekona,

U.S. (April 26, 1983), the court

. stated:

+» « A State creates a

protected liberty

interest by placing

substantive limitations

on official discretion.

An inmate must show

"that particularized

Standards of criteria

guide the state's

discretion” ...

In Olim, the court cited with approval

the distinctions drawn in Shango.

In Hewitt v. Helms, 103 S.Ct. 864

(1983), the court recognized the fact

that a state may create a liberty

interest through enactment of

statutory or regulatory measures.

Even though the court cautioned that

not every regulation governing the

administration of a prison must be

treated as creating a liberty

interest, the regulation at issue in

that case was found to provide a

-75-

protectible interest. Similarly, the

Court of Appeals for this Circuit in a

decision post-dating Shango, supra,

discussed an Illinois law requiring

that persons receiving treatment under

its Mental Health Code be treated "in

the least restrictive environment."

The court stated that "This is a

State-created liberty interest...

csohnson by Johnson v. Brelje, 701 F.2d

1201, 1205 (7th Cir. 1983)." Thus it

is clear that if a state places

limitations on official discretion, it

in all likelihood has created a

liberty interest.

The nature of the interest

involved rather than its weight is the

determining factor in a decision as to

whether a liberty interest is

involved. In Meacham v. Fano, 427

U.S. 215 (1976), the court determined

that in the absence of a state law,

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interprison transfers did not

implicate a liberty interest because a

prisoner's expectancy of remaining at

a particular institution is “too

ephemeral and insubstantial." The

Same approach may be appropriate in

determining which regulations or laws

create liberty interest. See Hewitt,

Supra. In the present case the

interest is substantial. The state

has limited the discretion of prison

officials in the use of agents, the

abuse of which can constitute cruel

and unusual punishment. These

regulations create a liberty

interest. The inmates in the

Wisconsin prison system have a liberty

interest in not being subjected to the

use of chemical agents except as set

forth in the Wisconsin Administrative

Code.

aT}=

The question then becomes whether

defendants are in fact violating their

regulations. They ciaim that they are

not. They draw fine distinctions,

stating that no inmate is maced

because, for instance, he refuses to

return a meal tray; rather he is maced

because he disobeys a direct order to

return a tray which could result in

"his having to be physically

restrained or which could result in a

physical confrontation between the

inmate and correctional officers to

seek compliance with orders and to

coerce cooperation prior to the

necessity of using actual force."

They argue that if officers must enter

a cell to obtain compliance with an

order to return a tray, for example,

there is an immediate threat of bodily

injury which, under the regulations,

-7@-

justifies the use of a chemical

agent. The argument turns on the

possibility that a seemingly passive

inmate may attack officers who enter

the cell and that someone may be

hurt. Thus, in defendants view, the

requirement is met that mace can be

used only to "subdue an inmate or

inmates who pose an immediate threat

of bodily injury or death to

another." Additionally defendants

argue that because an inmate in a cell

is refusing a lawful order, control

over that cell is lost and mace is

appropriately used “to regain control

of an institution or part of an

institution."

It is highly questionable whether

the fact that something happen that

May result in injury equals an

immediate threat. It is questionable

oFG~

whether when defendants act first,

they can be said to be subduing an

inmate. Furthermore, although the

defendants state “chemical agents are

a type of force," they seem,

consciously or unconsciously, to

consider the use of mace an

alternative to “actual force."

Several times in their brief this

contrast becomes explicit. At page

23, defendants argue that “chemical

agents, which are a substitution for

force, are permitted to subdue an

inmate or inmates ...." At page

24, reference is made to the use of

mace “prior to the necessity of using

actual force." This attitude, which

is evident in the testimony of prison

officials, is contrary to the

Wisconsin prison regulations.

It might seem that in some

respects a factual question exists as

-80-

to what sort of force mace is. The

inmates see it as a very serious form

of force. The defendants see it as a

substitute for “actual force."

Defendants state that “chemical agents

are generally the most humane and

least harmful method of dealing with

obstinate and dangerous inmates

+ « « «" However, the decision as to

what chemical agents actually are is

not an open one. Wisconsin

Administrative Regulation HSS

306.06(a) defines force as follows:

"Force" is the exercise

of strength or power to

overcome resistance or

to compel another to act

or to refrain from

acting in a particular

way. It includes the

use of chemical,

mechanical, and physical

power or strength. Only

so much force may be

used as is reasonably

necessary to achieve the

objective for which it

is used. The use of

exceasive force is

forbidden.

ele

As it should be, the use of

chemical agents is included in the

definition of force. The appendix to

the rules further states:

Because chemical agents

pose a risk of injury to

others, resort to their

use is made in limited

Situations.

Later it is pointed out in the

appendix that there is a limitation on

the use of chemical agents similar to

the limitation on the use of firearms:

As with firearms, only

the Superintendent may

authorize its use.

Defendants’ apparent attitude that

chemical agents are not “actual force”

is simply incorrect under either the

regulations or the Eighth Amendment.

‘Despite this, defendants in fact use

mace in many cases as the first type

of force used. That is, aa

prisoner refuses to return a tray or

to be moved, even before he makes any

-82-

a

physicaliy threatening gesture or

statement, he may be maced. In other

words, mace is used as a “first

strike" weapon.

The clear implication of the

regulations is that mace is a serious

use of force. For purposes of

illustration, if the use of mace were

analogized to hitting an inmate with a

baton, the excesses in its use as

revealed in this record would be

apparent. No one would argue that the

prison officials could tell an inmate

to return a tray and then tell him

that if he refused, they would hit him

once with a baton; if he continued to

refuse that they would continue to hit

him. The flavor of corporal

punishment in that scene is clear, and

the regulations prohibit corporal

punishment. HSS 306.06(2). Yet when

mace is used, defendants seem to feel

=§3-

that they are not using force at all

or at least that they are being humane.

To say that they are incorrect is

not to argue with them that the use of

Mace prevents danger to the

correctional officers and is

expedient. It is not to say that mace

can never be used. It is not to

disregard the interests of the |

officers in being unharmed on the

job. But the regulations and the

Eighth Amendment must be recognized as

providing limits on the use of

chemical agents. The almost routine

use of chemical agents that I have

observed in this case violates the

inmates’ rights under both the Eighth

and the Fourteenth Amendments.

The order which will be issued in

this case will follow in all respects

the prison regulations. I will order

-84-

9/

that in a non emergency situation—

the regulations be strictly complied

with. Prior to the use of mace,

approval of the Superintendent must be

obtained. The Superintendent may

Gelegate that authority to Mr.

Heeringa, the Assistant Superintendent

of Security. However, the delegation

of authority must go no lower into the

ranks than Mr. Heeringa. I am

personally impressed with Mr.

Heeringa, and I am confident that he

will properly exercise his authority

and good judgment. I do not have that

same confidence in lower ranking

9/Nothing in this record reveals

anything about what would be done in

an emergency, for no true emergencies

are involved here. My order is not

intended to apply to a situation in

which, for instance, inmates are out

of their cells, rioting, destroying

property, or physically threatening

correctional officers.

-85-

officers, especially those pulling

long duty in the Adjustment Center.

Secondly, “to subdue an inmate who

poses an immediate threat of injury"

means that the inmate is at the

minimum making physically threatening

gestures. In some cases the throwing

of items from the cells equals

physically threatening gestures. Even

if physically threatening gestures are

made, however, if an inmate is locked

in his cell, and certainly if he is

locked in a strip cage, a careful

judgment must be made as to whether

less serious alternatives are

available. Finally, “to regain

control of a cell" does not mean to

require an inmate to return a tray or

to relinquish cigarettes or to spread

his buttocks. Nor, under the case

law, does it mean to force an inmate

-86-

to stop shouting. In addition, the

prison officials are required to

comply with the regulations to allow

the medical staff to treat inmates

following macing incidents.

Lastly, I come to the question of

damages in Mr. Soto's individual

case. While I find that his rights

have been violated, I also find that

the individual defendants, although

acting improperly, did not do so

recklessly but rather acted in good

faith, believing that their actions

did not run afoul of the

Constitution. Accordingly, individual

damages will not be awarded. The

relief here will be limited to the

injunction to be granted. It goes

without saying, however, that a good

faith immunity defense will no longer

be avaliable to state agents after

this decision is issued.

-87-

Findings of Fact

l. Plaintiffs are now, or at the

commencement of this action were,

inmates in the Adjustment Center of

the Waupun Correctional Institution,

Waupun, Wisconsin.

2. Defendant Elmer 0. Cady was,

at all times material, the

Administrator of the Division of

Corrections, Department of Health and

Social Services, State of Wisconsin.

Defendant Cady had the ultimate

responsibility within the Division of

Corrections for all policies,

procedures, and correctional staff

employed within the correctional

institutions in Wisconsin, including

the Waupun Correctional Institution.

In May of 1983, Mr. Walter Dickey,

Professor of Law of the University of

Wisconsin Law School and a witness in

this case, assumed the position held

by Mr. Cady.

3. Defendant Thomas R. Israel is

the Superintendent of the Waupun

Correctional Institution. He is

responsible for all policies,

procedures, and correctional staff

within the institution.

4. Defendant Gerald Heeringa is

Assistant Superintendent of Security

of the Waupun Correctional

Institution. He is responsible for

all security policies and procedures

within the institution.

5. The Waupun Correctional

Institution is a maximum security

prison in the State of Wisconsin, and

at the time of trial had a population

of approximately 1,154 inmates. The

approved designated capacity for the

Waupun Correctional Institution is 810

inmates.

6. The Adjustment Center, the

Major segregation center within the

institution, is a concrete and steel

building containing 67 cells. 59

cells are arranged in 2 tiers on the

main floor. The remaining 8 cells are

in the basement. Each of the cells is

approximately 7 feet wide by 10 feet

long by 8 feet high. Three of the

sides of each cell are solid

concrete. The fourth side consists of

a metal barred door. The ceiling and

floor are concrete. 15 of the cells

have a wooden outer door in addition

to the metal barred doors and are

commonly referred to as double door or

wooden door cells.

7. The strip cage is a thick

wire mesh cage in the Adjustment

Center, which is approximately 4 feet

wide by 4 feet long by 8 feet high.

-90-

Strip searches of inmates are

conducted in this cage.

8. The cells in the Adjustment

Center do not have windows.

9. Inmates are sent to the

Adjustment Center from the general

population for disciplinary purposes

and punishment resulting from

violations of prison rules. The

reasons an inmate may be sent to the

Adjustment Center range from

possession of contraband, theft,

refusing to go to work, up to fighting

with prisoners or staff.

10. Inmates are normally allowed

to have cigarettes and matches in the

Adjustment Center. Inmates are fed in

the Adjustment Center 3 times a day.

The meals are delivered by

correctional officers on plastic trays

and are served to the inmates while

ye

they are locked in their cells.

Plastic eating utensils and paper cups

are provided.

ll. The average daily population

in the 59 cells of the justment Center

since approximately the summer of

1982, is 80 inmates. Inmates are

frequently double-celled in the

Adjustment Center and, in fact, more

than two inmates have been placed in

an Adjustment Center cell ona

frequent basis during the last three

years. At times, over 100 inmates

have been held in the Adjustment

Center.

12. The chemical agents presently

used in the Adjustment Center are

Chloroacetenophenone (CN) and

Chliorobenzylmalononitrite (CS).

13. The CN used in the Adjustment

Center is in a liquid form, and is a

-92-

by-product of a kerosene-type

substance which makes the CN stick to

surfaces and persist. CN is sprayed

from a canister. The canisters used

in the Adjustment Center are

pproximately 2 inches in diameter, and

about 5-1/2 inches high. They contain

approximately 4-1/2 ounces of CN,

which is equivalent to approximately

35 1l-second bursts of CN. CN

vaporizes upon contact with the human

body and other surfaces.

14. Mace is a brand name used by

one of the manufacturer of the CN

which is available in the Adjustment

Center.

15. CS is a stronger chemical

agent than CN. CS is used in a powder

or dust form and is often referred to

as Federal Duster. CS dust is also

disbursed from a canister.

-93-

16. A liquid form of CS was also

used in the Adjustment Center during

the period relevant to the lawsuit.

The liquid form of CS, often called

Federal Streamer, is no longer used in

the Adjustment Center.

17. CN and CS are intended to

have the immeciate effect of disabling

and incapacitating persons on whom

they are discharged by causing pain

and an intense and pervasive burning

and tearing action.

18. The application and use of CN

and CS may result in serious and

permanent physical injury, especially

to the eyes and skin, in the absence

of immediate and competent medical

attention.

19. The effects of CN and CS may

be moderated by thoroughly cleansing

and bathing the body, changing

clothing and bedding, and ventilating

the affected area.

-94-

20. The use of chemical agents in

the Adjustment Center has increased

dramatically in the past 4-1/2 years.

21. From January 1, 1979 to

November 4, 1982, approximately 130

macing incidents occurred in the

Adjustment Center.

22. Most of the macing incidents

involve situations where inmates were

maced while locked in their cells or

in the strip cage. Some incidents

involved inmates who suffered the

effects of mace used on another inmate.

23. “Macing Incident Reports” are

written by correctional officers and

are intended to contain most of the

relevant information regarding the use

of chemical agents on a particular

occasion.

24. The defendants' policy

concerning the use of mace in the

Adjustment Center hasn't changed since

-95-

the filing of the lawsuit or the

rendering of the summary judgment

Gecision in February of 1982.

25. Many states operate their

prisons without the use of mace or

chemical agents, except in extreme

riotous situations.

26. The policy concerning the use

of mace in the Adjustment Center was

set by defendant Heeringa, and

approved by defendants Israel and Cady.

27. The possibility of serious

injury as a result of the use of

chemical agents is greater when

chemical agents are used in enclosed,

poorly-ventilated areas such as a

prison cell.

28. The first document issued by

the Division of Corrections,

Department of Health and Social

Services, on the use of chemical

agents was placed into effect on

January 15, 1978, and stated that,

Chemical agents for

purposes of security and

control shall be used

only in extra-ordinary

circumstances when a

Situation arises in

which physical force

would be otherwise

necessary and

unavoidable to protect

residents or staff from

great bodily harm.

(Emphasis added.)

Ex. 136.

29. Most of the inmates who are

placed in the Adjustment Center are

respectful to officers, do their

adjustment time and are returned to

the general population.

30. Correctional officers have

discretion to ignore some of the

conduct of inmates in the Adjustment

Center without taking disciplinary

action.

31. Some methods of dealing with

inmate misconduct are to take a

oS7<

portion of the inmate's property away

or to increase his adjustment time.

32. The most frequent kind of

major conduct violations in the

Adjustment Center are disrespect and

disobeying orders.

33. The authority to approve the

use of chemical agents in -he

Adjustment Center has been delegated

by defendants to the lowest

Supervisory level.

34. Defendants’ procedures for

the use of chemical agents in the

Adjustment Center do not require that

the officer in charge create a show of

force by gathering other correctional

officers an suiting them up in

Emergency Response Unit (E.R.U.) gear

before chemical agents are used.

35. The E.R.U. gear includes a

helmet with faceguard, a 4-1/2 foot

high, 2-man plastic shield, leg

-98-

guards, supporter, jump suit and a

wooden baton. This equipment is

available for several of the guards in

the Adjustment Center.

36. Defendants’ policy in the

Adjustment Center requires that

chemical agents be used first against

an inmate for refusing to obey an

order. After the use of chemical

agents, officers enter the cell

dressed in E.R.U. gear.

37. The cells in the Adjustment

Center are not cleaned after mace is

used against the inmate while he was

in that cell, except in the discretion

of the supervisor present. In the

Ajustment Center, decisions whether to

allow inmates to shower or to change

clothing and bedding after the use of

chemical agents are also left to the

discretion of the supervisor.

-99-

38. Chemical agents have been

used to create and preserve an

atmosphere of discipline in the

Adjustment Center.

39. Chemical agents have been

used in the Adjustment Center to gain

compliance with non-emergency orders

when the inmates against whom the

agents are used are locked in their

cells, handcuffed, or otherwise

restrained.

40. Chemical agents have been

used to seek compliance with an order

to stop yelling obscenities.

41. Chemical agents have been

used in the Adjustment Center against

inmates who refuse orders to take

medication.

42. Chemical agents have been

used in the Adjustment Center against

inmates who refuse an order to stop

throwing liquids from their cells.

-100-

43. Chemical agents have been

used in the Adjustment Center against

an inmate for refusing to remove a

book from the outer wooden door of an

adjustment cell.

44. Inmate Robert Mallory was

directly maced, in the eyes, on

February 4, 1981, while he was passive

and locked in his cell, for refusing

to return his plastic meal tray.

Instead of returning the tray, he

placed it on his bed, went to the back

of the cell and sat on the toilet or

Sink. He was not violent, made no

threats against any of the guards, had

no weapons and was not barricaded in

his cell.

45. On February 5, 1981, Mallory

followed the same pattern of conduct

as on February 4, 1981. However,

instead of macing Mallory on that

-101-

date, several of the guards entered

his cell dressed in E.R.U. equipment

and retrieved the tray from the cell.

46. Inmate Mallory suffered the

effects of mace as a result of the use

of chemical agents against other

inmates in the Adjustment Center,

including April 16, 1980, when another

inmate was sprayed with 4 cans of mace.

47. Inmate William McAdoo was

directly maced on October ll, 1980,

while he was passive and locked in his

cell, for throwing some milk from a

paper cup on a correctional officer.

Inmate McAdoo was not violent, did not

issue any threats against any

correctional officers, had no weapons

and was not barricaded in his cell.

48. Inmate McAdoo was not given a

shower and the water in his cell was

turned off for a period of time after

the macing incident, preventing him

-102-

from ridding himself of the effects of

mace.

49. On other occasions while

inmate McAdoo was in the Adjustment

Center, he suffered the effects of

mace and chemical agents when they

were used against other inmates.

50. Inmate Gregory Johnson is an

asthmatic. He was never directly

maced while in the Adjustment Center.

However, on several occasions he

suffered the effects of mace when it

was sprayed against other inmates,

including inmate Warren Washington on

March 8, 1981.

51. Inmate Laron McKinley was

maced on November 24, 1980, while he

was passive and locked in one of the

Gouble-doored adjustment cells. On

that date, he was maced for refusing

to remove a book from the outer wooden

door of the cell. The inner metal

barred door was locked at all times.

-103-

Inmate McKinley did not issue any

threats against any correctional

officers, did not possess any weapons

in his cell, and was not barricaded in

his cell.

52. Inmate McKinley was also

maced on September 26, 1980, while

locked in the strip cage. On that

date, he was maced for refusing to

spread his buttocks to complete a

Strip search procedure. At the time

he was maced, McKinley was naked and

had no weapons.

53. On other occasions, inmate

McKinley suffered the effects of mace

while he was in the Adjustment Center

when mace wasS sprayed on other inmates.

54. Inmate Carlos Soto was maced

on December 13, 1979, while locked in

his cell and handcuffed. Inmate Soto

was maced for refusing to double-cell

with another inmate.

-104-

55. On other occasions while in

the Adjustment Center, Soto suffered

the effects of mace when it was

sprayed against other inmates.

56. On various occasions, members

of the plaintiffs' class suffered the

effect of chemical agents but were

denied medical treatment, an

opportunity to shower or bathe, an

opportunity to have the cell cleaned

and ventilated, and to have their

clothes, bedding, and mattress changed.

57. As a direct result of the

conduct, policies and procedures of

defendants and their agents and

subordinates, inmates have suffered

and wi’ . continue to suffer

irreparable harm. Plaintiffs have

been without and will continue to be

without an adequate remedy at law.

The balance of harms favors

plaintiffs, and public policy requires

that relief be granted to them.

-105-

Conclusions of Law

1. This action arises under the

United States Constitution,

particularly under the provisions of

the Eighth and Fourteenth Amendments

to the United States Constitution, and

under federal law, particularly the

Civil Rights Act, Title 42 of the

United States Code, §1983.

2. This court has jurisdiction

pursuant to Title 28 of the United

\States Code, §1343(3).

3. This action is certified as a

class action on behalf of ail past,

present and future residents of the

Adjustment Center at the Waupun

Correctional Institution.

4. The Waupun Correctional

Institution, including the Adjustment

Center, is being operated and

-106-

maintained by defendants pursuant to

state law.

5. At all times relevant to this

action, the defendants were acting

under the color and pretense of the

Statutes, ordinances, regulations,

customs and usages of the State of

Wisconsin, and under the authority of

their offices.

6. All of the defendants and

their subordinates and agents are

bound by the Wisconsin Administrative

regulations, including HSS §306.08.

Ve During the times relevant to

this action, defendants and their

subordinates and agents have used

chemical agents in the Adjustment

Center against the plaintiffs in

violation of plaintiffs'

constitutional rights under the Eighth

Amendment.

-107-

8. During the times relevant to

thas action, defendants and their

subordinates and agents have used

chemical agents in the Adjustment

Center against plaintiffs in violation

of plaintiffs‘ constitutional rights

under the Fourteenth Amendment to the

Constitution by using chemical agents

in violation of the Wisconsin

Administrative regulations - HSS

$306.08.

-108-

INJUNCTIVE ORDER

The court finds that defendants,

their agents, employees and

subordinates have used or permitted

the use of and are continuing to use

Or permit the use of chemical agents,

including CN and CS, in the Adjustment

Center of the Waupun Correctional

Institution under circumstances which

constitute cruel and unusual

punishment to the plaintiffs in

violation of the Eighth Amendment to

the United States Constitution; that

such use also has been and continues

to be in violation of the

administrative regulations of the

State of Wisconsin, Department of

Health and Social Services,

specifically HSS 306.08, and that such

use has been and continues to be in

-109-

violation of the Due Process Clause of

the Fourteenth Amendment to the United

States Constitution; that plaintiffs

have been and are continuing to be

harmed, and the public interest and

the equities of the situation require

that the court now take action to

permanently enjoin the defendants’

wrongful conduct;

-110-

NOW, THEREFORE, IT IS ORDERED WITH

RESPECT TO THE USE OF CHEMICAL AGENTS

IN THE ADJUSTMENT CENTER OF THE WAUPUN

CORRECTIONAL INSTITUTION:

l. Unless actual physical

control of all or a portion of the

institution has been lost, chemical

agents, including CN and CS, may not

be used except to subdue an inmate or

inmates who pose a clear, immediate,

actual anda direct threat of bodily

injury or death to another. Chemical

agents may not be used:

(a) aS an ordinary procedure

or other than in extreme and

exceptional cases;

(b) to control an inmate who

is not violent unless the threat

of violence is clear, immediate,

actual and direct;

-lll-

(c) to control an inmate who

is locked in his cell, unless

there is a clear, immediate,

direct and actual threat of bodily

injury or death to another;

(d) to control an inmate who

is handcuffed or otherwise

restrained unless there is a

clear, immediate, direct and

actual threat of great bodily

injury or death to another.

2. The use of chemical agents is

not appropriate to force an inmate's

compliance with a non-emergency order

where the inmate's refusal to obey the

order is passive and non-violent. The

mere possibility of a physical

confrontation and the potential of

resulting bodily injury, absent a

clear, immediate, direct and actual

threat of bodily injury is

insufficient to justify the use of

-112-

chemical agents. It will ordinarily

not be proper to use chemical agents

in the following circumstances:

(a) when an inmate refuses

to return a meal tray, cup, dishes

or other eating articles; a

refusal to return such an item,

however, justifies the withholding

of future food services to the

inmate;

(b) when an inmate refuses

to return contraband, such as

cigarettes, unless it is

contraband which may reasonably be

considered, in its present form,

to be a weapon;

(c) when an inmate throws an

object, such as food, water, urine

or feces, out of his cell;

(d) to quiet a prisoner;

(e) when an inmate refuses

non-emergency medical treatment;

-113-

(f) when an inmate refuses

to leave his cell to have it

cleaned; and

‘g) when an inmate refuses

to spread his buttocks for a

search in the strip cage where

such refusal is passive and

non-violent.

3. Chemical agents may never be

used against an inmate if he is

passive and non-violent.

4. Chemical agents may never be

used to punish an inmate.

5. Whenever circumstances are

such that the use of chemical agents

is proper, the person authorizing

their use shall give full

consideration to the alternative use

of other means of non-deadly force.

6. The use of chemical agents in

non-emergency circumstances shall be

-114-

authorized only by Mr. Israel or Mr.

Heeringa.

7. Chemical agents shall not be

used in amounts greater than necesaary.

8. Chemical agents are to be

used in accordance with the

manufacturer's instructions.

9. Following each use of a

chemical agent, all exposed inmates

shall be examined by a competently

trained member of the medical staff.

10. This ORDER regarding the use

of chemical agents in the Adjustment

Center of the Waupun Correctional

Institution is to be in addition to

those restrictions already set forth

in HSS 306.08. Nothing herein should

be construed to relieve any person of

an obligation to fully, completely and

in good faith comply with and

implement all administrative

procedures promulgated by the Division

-115-

of Corrections, Department of Health

and Social Services, State of

Wisconsin, regarding the use of

chemical agents to the extent they are

not inconsistent with this ORDER.

Dated at Milwaukee, Wisconsin,

this 29th day of June, 1983.

BY THE COURT:

/s/ Terence Evans

TERENCE T. EVANS

UNITED STATES DISTRICT

JUDGE

3985p/02-03-85

-116-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CARLOS S. SOTO, et al.,

{June 29, 1983)

Plaintiffs,

vs. Docket No.

80-C-146

ELMER O. CADY, et al., Judge

Terence T.

Defendants. Evans

DECISION BY COURT

This action came to trial before

the Court with the judge named above

presiding. The issues have been tried

and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

That in non-emergency situations,

chemical agents in the adjustment

center of Waupun Correctional

Institution be used only in accordance

with the procedures outlined on pages

31 through 34 of the decision and

order dated June 29, 1983.

-117-

Dated: 6/29/83

SOFRON B. NEDILSKY, Clerk

By /s/ Regina Torcura

Deputy Clerk

-118-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CARLOS S. SOTO and

ROBERT DE MALLORY, on

behalf of themselves and

all others similarly

Situated,

Plaintiffs,

vs. Civil Action

No. 80-C-146

ELMER O. CADY

THOMAS R. ISRAEL and

GERALD HEERINGA,

Defendants.

[February 22, 1982]

DECISION AND ORDER

This is an action under 42 U.S.C.

§1983, filed pro se by plaintiffs

Carlos S. Soto and Robert DeMallory,

alleging that defendants violated

their constitutional rights under the

Eighth and Fourteenth Amendments

through the arbitrary, capricious, and

excessive use of mace, tear gas, and

-119-

other chemical disabling agents in the

Adjustment Center at the Wisconsin

State Prison at Waupun. On July 7,

1980, Attorney Peter Stone was

appointed to represent the plaintiffs,

and on September 1l, 1981, an amended

complaint was filed. On February 12,

1981, the case was certified as a

Class action. Plaintiffs have now

moved for summary judgment granting a

permanent injunction or,

alternatively, a preliminary

injunction.

Plaintiffs seek an injunction (1l)

prohibiting prison authorities from

using any chemical disabling agents,

other than mace and canister-type

dust, in the Adjustment Center, (2)

restricting the use of mace and other

chemical agents, and (3) requiring

that any resident exposed to a

disabling agent be allowed to cleanse

-120-

his eyes and body and air his cell

after exposure.

In support of the motion,

plaintiffs have submitted numerous

affidavits from prisoners alleging

various macing incidents. In

addition, the affidavit of Mr. Stone

sets forth actual prison documents --

Incident Reports of macing incidents.

The Incident Reports were prepared by

various prison officers after macings

had occurred. Taken together,

plaintiffs argue, the documents reveal

that the practices of the prison

officers are in violation of the

constitution and of Wisconsin prison

regulations governing the use of

chemical substances. In response,

defendants present numerous affidavits

from officers as weil as higher level

officials regarding both the need, as

they see it, for the use of mace in

-121-

general and further statements about

the specific incidents reflected in

the plaintiffs' affidavits.

The affidavits of the prisoners

paint a picture of the use of mace at

the Adjustment Center that differs

substantially from the situation as

portrayed by the defendants.

DeMallory, for example, states that

because his request for the return of

some personal property, including his

radio and typewriter, was denied, he

placed his meal tray on his bed rather

than at the front of his cell. For

this, claims DeMallory, he was maced.

The affidavit of Robert Lee Barnes

states that he was maced without

provocation merely because he was

about to be transferred to another

correctional institution. The

affidavit of Laron McKinley states

that he was maced for refusing to

-122-

remove a book from the outer wooden

door of his cell. The affidavit of

Filemon Amaro states that

approximately 5 or 6 cans of mace were

used against him while he was locked

in his cell. The affidavit of Paul

Chapman states that mace was blown

over the entire cell block in the

Adjustment Center by a fan in order to

test its effects. The affidavit of

Warren Washington states that he was

maced for refusing to give up his

plastic evening meal tray and that he

was maced in the face while he was

naked and handcuffed ina “strip

cage." The affidavit of plaintiff

Soto states that after he placed his

hands through the bars to be

handcuffed he was maced.

All of the prisoner affidavits

state that injuries were received as a

result of the macings, including, most

-123-

significantly, burning of the eyes,

temporary loss of sight and difficulty

with breathing.

In sum, the affidavits of the

prisoners attempt to show that mace

was used against them by the

defendants without adequate

provocation in circumstances under

which the inmates presented no threat

to human life or to the destruction of

prison property. The affidavits,

plaintiffs argue, also support their

contention that excessive amounts of

mace were used as a means of summary

punishment.

The defendants argue that their

affidavits raise genuine issues of

fact, thus precluding a grant of

summary judgment against them. They

also contend that their affidavits

demonstrate that the use of mace in

the Adjustment Center is within

-124-

constitutionally permissible

limitations.

Summary judgment is inappropriate

if material facts are in dispute. All

inferences and doubts drawn from the

facts in the record must be viewed in

the light most favorable to the party

opposing the motion. Staren v.

American National Bank & Trust Co. of

Chicago, 529 F.2d 1257 (7th Cir.

1976). The extent, provocations and

justifications for the macing

incidents, as disclosed in the

affidavits, are in dispute. Thus, the

request for summary judgment

permanently enjoining the defendants

from using mace and other chemical

disabling agents cannot be granted.

The plaintiffs' remaining request

is for a preliminary injunction

enjoining, within certain limitations,

the use of mace and other chemically

-125-

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disabling agents during the pendency

of this suit. Included in this

request are the plaintiffs' objections

to what they see as inadequate medical

attention following macing incidents.

In this circuit, a preliminary

injunction will be granted where the

following requirements have been

satisfied:

"(1) the plaintiffs have

no adequate remedy at

law and will be

irreparably harmed if

the injunction does not

issue; (2) the

threatened injury to the

plaintiffs outweighs the

threatened harm the

injunction may inflict

on the defendant; (3)

the plaintiffs have at

least a reasonably

likelihood of success on

the merits; and (4) the

granting of a

preliminary injunction

will not disserve the

public interest."

Fox Valley Harvestore,

Inc. v. A. O. Smith

Harvestore Products

Inc., 545 F.2d 1096,

1097 (7th Cir. 1976).

-126-

oe

All four requirements must be met.

In reviewing the request for

preliminary injunctive relief, I am

again confronted with the

contradictory affidavits. I can, in

part, resolve that concern by relying

only on the official “Incident

Reports" -- which come from the

defendants’ own records and are

written by prison employees -- and the

affidavits presented by the defendants.

Relying solely on this material, I

find that plaintiffs have shown that

they are likely to succeed on their

claim that at least some of the macing

incidents are unconstitutional.

However, in my view, the granting of a

preliminary injunction may more

seriously harm defendants than

plaintiffs and, in this circumstance,

granting an injunction would not serve

the public interest.

-127-

The state has regulations

governing the use of mace in its

prisons. As written, the regulations

are constitutional. If properly

interpreted and followed, the

regulations would protect prisoners

from unconstitutional macings as

effectively as an injunction. In my

view, plaintiffs' proof at trial is

likely to show that defendants do not

follow those regulations. However, if

I were to issue a preliminary

injunction, I would be doing no more

that enjoining defendants to follow

their own regulations.

That sort of order would be both

somewhat absurd and possibly harmful

to the administration of the prison.

Federal courts have followed a strong,

well-established policy of avoiding

unnecessary interference with internal

prison administration. For that

-128-

reason and because the state

administrative regulations exhibit a

sensitivity to constitutional

requirements, I will not preliminarily

enjoin defendants, but will admonish

them to look more closely at their

regulations and the case law discussed

below. In addition, I will expedite a

final determination in this case.

The Incident Reports and the

affidavits of the defendants show that

macing incidents generally fall into

four somewhat overlapping categories:

refusals of inmates to come to the

front of their cells to be handcuffed;

refusal to submit to strip searches;

refusal to relinquish items from

cells; and incidents of yelling and

throwing food, liquids, etc.

Thirty-nine Incident Reports

written by prison officers are

attached to Mr. Stone's affidavit. Of

-129-

those, approximately 17 involve

macings primarily in response to an

inmate's refusal to come to the front

of his cell to be handcuffed. Because

inmates in the Adjustment Center are

considered dangerous, they are

handcuffed before their cells are

opened. The usual procedure is that

an officer tells an inmate to come to

the bars to be handcuffed. If the

inmate refuses, what is referred to as

a “direct order” is given to the

inmate. If that order is disobeyed,

the inmate is maced. Ordinarily,

following the macing, the inmate

complies with the request. For

example, Exhibit ll, attached tc the

Stone affidavit, states:

"On the above date and

time, Inmate Cone

#60840-A was ordered to

be placed in full

Observation in the

Health Services Unit by

Dr. Arneson. Inmate

-130-

Cone refused to leave

his cell, AC Cell #5. I

then ordered him to come

to the bars to be moved

to HSU and he refused.

I then discharged a one

second burst of mace at

Inmate Cone striking him

in the chest area. ...

From time to time, one burst of

mace does not induce compliance with

an order. Exhibit 1 includes the

following statement:

"On above date and time

I was called to the A.C.

after Sgt. Strelow

notified me that Johnson

#544857 had refused

several direct orders to

come up to his bars to

be cuffed so that his

cell could be cleaned.

When I arrived at the

A.C. I proceeded to

Johnson's cell and again

issued him a direct

order to come up to his

bars which he still

refused. I then

informed Johnson that if

he did not comply with

the order we would use

Mace, still r-c7#iving no

response from »hnson.

At this time tne proper

procedure was followed

and Mace was

administered. After

-13l1-

several minutes had

passed Johnson still

would not come up to his

bars. CS Dust was then

used with two one-second

bursts being sprayed

into the air. After

waiting several minutes

with Johnson's cell door

closed it was reopened

but Johnson still

refused to come up to

the bars. The above

named Officers who were

already suited up in

full Crowd Control Gear

were instructed to enter

the cell. A struggle

occurred at this time

with Johnson finally

being cuffed and removed

to the shower... ."

Approximately eight reports show

that a similar pattern occurs when

inmates refuse to submit to strip

searches. Exhibit 2 reveals the

following:

"On above date and

approximate time, Inmate

Broadie #7621-A was

transferred from Program

Status to Adjustment

Status and refused to

comply with a direct

order of being strip

shook (sic). I

explained to Broadie

-132-

that if he did not

comply with the direct

order, I would spray him

with mace. Broadie

still refused the

order. I instructed

four officers to suit up

into Crowd Control

equipment and proceeded

to Cell #4. I did use a

small amount of mace on

Broadie. After

approximately five

minutes, Broadie came to

the bars and was cuffed

and taken to Cell 14

where he complied to a

strip search ...."

The incidents involving the

inmates' failure to relinguish items

from their cells show the same

pattern. On February 17, 1981, Inmate

John Schwartz was maced for refusal to

relinquish a ring. Exhibit 7. On

April 29, 1980, Inmate Roger Tubbs was

maced for failure to give up his

Cigarettes. Exhibit 20. Three

incidents are reported in which

inmates were maced for failure to give

back the plastic tray on which their

-133-

food is served. Exhibits 5, 9, 10.

For example, Exhibit 5 contains the

following statement:

"Off. Kluza was picking

up noon meal trays and

Inmate Washington

refused to give out his

tray. I went down and

talked with Washington

but he still refused to

give out the tray. I

gave Washington a direct

order to hand out his

tray, this he also

refused. I notified the

Security Officer and Lt.

Steckbauer entered the

block at 12:10 P.M. to

supervise. Off. Kluza,

Hoekstra and V. Nelson

suited up in riot gear;

Lt. Steckbauer issued me

(Sgt. Strelow) a

canister of mace, and

supervised the

application of it.

"Inmate Washington was

again given a direct

order to come to the

front of his cell to be

cuffed or to hand out

his food tray.

Washington refused all

direct orders. I

informed Washington that

mace would be used if he

refused these orders.

Washington still

refused, mace was then

applied... ."

-134-

Finally, a smaller number of

incidents are reported in which the

inmates were thiowing food or liquids

at the officers or in which they were

causing disruption by shouting. For

instance, Exhibit 21 reveals:

"On the above time and

date, I was informed

there was a problem at

the Adjustment Center.

Upon arrival there was a

great deal of noise and

bar rattling by

inmates. Sgt. Hills

informed me inmate

Amaro, #59227-A, for no

reason, started yelling

and threatening staff.

I went over to Amaro's

cell and tried talking

to him but with no

avail, and all the while

Amaro kept on pacing,

with hands above his

head yelling kill-kill.

I gave Amaro several

direct orders to come to

the front of the cell,

without any response

from him except his

repeated yelling of

kill. Chemical mace was

then applied with no

change. Amaro still

kept yelling and

disrupting the

Adjustment Center.

-135-

Permission was obtained

from Capt. H. McLaughlin

to use the Silent

Partner, Federal

Streamer, which also had

no effect on Amaro.

Three officers were then

informed to dress in

Riot Gear, and inmate

was physically taken

from his cell to

Control, Full

Restraints. Amaro

continually struggled

and kept on yelling,

kill, kill everyone."

The incident reported which

involves the most disruptive behavior

is revealed in Exhibit 23. Several

inmates were yelling "We want to go to

the hole, we want to go to the hole."

An officer on the cell block reported

that five inmates had thrown liquid at

him. It was determined that some of

the inmates would have to be removed:

". . » Residents Bell,

Jordan and Killebrew

caused no problems in

the transfer, however,

Bowie threw a pail of

liquid at me as I passed

his cell and then began

-136-

yelling disrespectful

and threatening

statements at me.

“Wiggins refused several

direct orders to come to

the bars of his cell to

be handcuffed. It then

became necessary to use

chemical mace on him.

The effects of the mace

were immediate in that

he came up to the bars

very quickly, was

cuffed and transferred

to Cell il, Controlled

Status ... .”*

The record also contains the

affidavits of Elmer 0. Cady,

Administrator of the Division of

Corrections of the State of Wisconsin,

and Gerald Heerings, Assistant

Superintendent of Security at Waupun

Correctional Institution. Mr. Cady

points out that the inmates at the

Adjustment Center are the “most

aggresive, assaultive, and disruptive

types in the institution." In his

view, control of the Adjustment Center

is “absolutely vital to the overall

-137-

operation of Waupun Correctional

Institution."

He also states that

repeated failure of inmates to obey

ligitimate orders would result in a

critical breakdown of order and

discipline.

If an inmate repeatedly

refuses an order,

"and the officers and

supervisors believe

there is reasonable

concern that the use of

physical force would

result in

injury, a

decision may be made to

use mace to reduce the

inmate's resistance so

that restraints may be

placed on him. Without

the use of chemical

agents, it would be

necessary

for officers

to enter the cell and

forcibly cuff the

inmate."

On this point

» Mr. Heeringa states:

“Failure to comply with

an order which requires

physical force to secure

compliance, under

supervision by security

supervisory staff

members is considered a

legitimate justification

for the use of chemical

-136-

agents to avoid injury

to both inmates and

staff."

Both Cady and Heeringa claim that

the use of mace at the Adjustment

Center complies with the regulations

pertaining to the use of chemical

agents found in 4 Wisconsin

Administrative Code, HSS § 306.08.

The court of appeals for this

circuit has addressed the questions

posed by the use of chemical agents in

correctional facilities in two recent

cases. In Stringer v. Rowe, 616 F.2d

993 (7th Cir. 1980), the court pointed

out that while courts in the past have

Sanctioned the use of chemical agents

when reasonably necessary, recent

decisions have “emphasized that use of

chemical agents such as tear gas and

mace by prison officials to subdue

individual prisoners, rather than to

-139-

quell large distrubances, should be

more restricted." At 999.

In Lock v. Jenkins, 641 F.2d 488

(7th Cir. 1981), the court considered

the use of tear gas and other chemical

disabling agents on pretrial

detainees. Thus, the analysis

proceeded under the Fourteenth, not

the Eighth, Amendment. However, the

court implied that the issues posed

were the same. Relying on Stringer

and Spain v. Procunier, 600 F.2d 189

(9th Cir. 1979), the court concluded

that only in “rare occasions" would it

be appropriate to use chemical agents

to control inmates already confined in

their cells. In Lock, the records

show that the inmates were engaged in

"inciting to riot at a time of

tremendous tension in the prison

following an attempted escape and the

taking hostage of the prison Warden

-140-

and several others." The court

concluded:

"We believe that the

facts shown regarding

this incident constitute

one of the rare

occasions when use of

tear gas against persons

locked in cells was not

unjustified." At 496.

However, as to other incidents

revealed in the court record, the

conclusion was contrary. The use of

gas to retrieve a metal food tray was

found to be constitutionally

impermissible. Also impermissible was

the use of a chemical agent to stop

inmates from shouting and uttering

threats. The court stated, at page

500:

“We have also found

unconstitutional the use

of chemical agents to

stop unpleasant but not

threatening behavior by

safekeepers locked in

their cells."

-141-

It is a short step from these

cases to the conclusion that the

Incident Reports in the record may, in

some instances, reveal that mace is

employed in a manner not sanctioned by

the Eighth Amendment to the

Constitution. As I stated above,

those same Incident Reports tend to

show violations of the state

regulations found in 4 Wisconsin

Administrative Code, HSS § 306.08.

The regulations provide for the use of

chemical agents in only two

situations: to subdue an inmate who

poses an immediate threat of injury or

death to another, and to regain

control of an institution or part of

an institution. Defendants seem to

interpret the regulations to authorize

the use of mace on an inmate who is

locked in a single cell and refuses to

obey a routine non-emergency order.

-142-

On its face, that interpretation of

the regulation may be too broad. A

proper interpretation of the

regulation would seem to limit the use

of mace unless prison authorities can

demonstrate that immediate compliance

with a direct order is necessary, and

that compliance with the order can

only be secured by entering the cell

and engaging in physically violent

contact with the inmate where, in all

likelihood, a prison official or the

inmate himself will be injured.

The regulations, to be

constitutional, must be interpreted to

limit the use of mace to extreme

Situations. They must recognize that

the use of mace to subdue individual

prisoners in single cells (as opposed

to quelling larger disturbances), must

be “more restricted." Stringer, supra

at 999.

-143-

Furthermore, the regulations

contain a built-in safe-guard to

prevent abuses: any use of chemical

agents must be authorized by the

Superintendent, a requirement I

interpret to apply to each macing

incident. By using the term

"superintendent" in the regulations,

the intent appears to be to vest the

power to authorize macings in one

high-ranking official. In this case,

I would interpret the term to include

both Mr. Thomas Israel and, perhaps

more appropriately, Mr. Heerings, the

"Assistant Superintendent - Security"

at the Waupun Correctional

Institution. I also interpret the

regulations to mean that if Mr.

Heeringa is unavailable, use of

chemical agents must be authorized by

someone of relatively responsible rank

outside the Adjustment Center who is

-144-

specificaliy designated by Mr.

Heeringa or Mr. Israel.

As I stated, however, I find that

the issuance of an injunction may

seriously harm the defendants‘

interest and duty in maintaining order

in the institution and may, as a

result, disserve the public interest.

The affidavits of Cady and Heeringa

state that without the use of chemical

agents it would be much more dangerous

to force compliance with legitimate

orders, with the result being a

breakdown of order and discipline in

the entire prison. I believe these

concerns to be legitimate.

The Adjustment Center at the

Wisconsin State prison is reserved for

inmates who pose disciplinary problems

while among the general population.

Unfortunately, placement in the Center

does not deter some inmates from

-145-

engaging in prohibited conduct. In

some instances, guards in the Center

become the object of an inmate's

frustrations both real and imagined.

A prison cannot be run by stubborn,

defiant inmates, but rather it must be

run by state officials lawfully

entrusted with the responsibility for

administering a reasonably safe and

orderly institution. Because of the

serious and difficult tasks faced by

defendants to this action, I am

convinced that the public interest is

served by allowing them time to

reevaluate their interpretation of

their regulations before being faced

with a federal court order.

Plaintiffs also seek an order

requiring defendants to provide

immediate medical attention to inmates

exposed to chemical agents and to

allow them to bathe or shower, change

-146-

their clothing, and ventilate their

cells. On this point, a direct

dispute appears in the facts presented

to the court. Plaintiffs all claim,

in almost identical language, that

they were denied medical treatment,

showers or baths, changes of clothing,

and ventilation. Defendants all state

that medical attention is always

given, and that water is available for

cleansing.

Again a regulation speaks to the

issue. Regulation HSS 306.08(5)

provides:

"After chemical agents

have been used, all

exposed inmates are to

be examined by the

medical staff. These

inmates shall have their

eyes cleaned with water

and be provided with a

change of clothing as

soon as possible.

Exposed living quarters

shall have bedding and

mattress changes and a

thorough cleansing."

-147-

The regulation is clear. If followed,

it provides protection to the inmates.

IT IS THEREFORE ORDERED that

plaintiffs' motion for summary

judgment permanently Or temporarily

enjoining the defendants is denied.

IT IS FURTHER ORDERED that counsel

for each side appear for a conference

with the court on April 22, 1982, at

9:30 a.m. to consider further

proceedings in this case.

SO ORDERED.

Dated at Milwaukee, Wisconsin,

this 22nd day of February, 1982.

BY THE COURT:

/s/ Terence Evans

TERENCE T. EVANS

UNITED STATES DISTRICT JUDGE

-148-

Opinion by Judge Kellam

JUDGMENT-ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 20, 1984

Before

Hon. Joel M. Flaum, Circuit Judge

Hon. Wilber F. Pell, Jr., Senior

Circuit Judge

Hon. Richard B. Kellam, Senior

District Judge*

No. 83-2380

CARLOS S. SOTO and Appeals from

ROBERT DE MALLORY, the United

individually and on States District

behalf of all others Court for the

Similarly situated, Eastern

Plaintiffs-Appellees District of

Wisconsin

vs.

No. 80-C-146

ELMER CADY, Admini- Terence T.

Sstrator of Corrections Evans, Judge.

Thomas Israel, Superin-

tendent, State Prison

GERALD HEERINGA,

Security Superintendent,

State Prison, Defendants-

Appellants.

-149-

No. 83-2381

CARLOS S. SOTO, No. 80-C-321

Plaintiff-Appellee,

vs.

ELMER ©. CADY, et al.,

Defendants-Appellants.

This cause was heard on the record

from the United States District Court

for the Eastern District of Wisconsin,

Division, and was

argued by counsel.

On consideration whereof, IT IS

ORDERED AND ADJUDGED by this Court

that the judgment of the said District

Court in this cause appealed from be,

and the same is hereby, REVERSED AND

REMANDED, in accordance with the

opinion of this Court filed this date.

*The Honorable Richard B. Kellam,

Senior District Judge for the Eastern

District of Virginia, sitting by

designation.

-150-

UNITED STATES COURT OF APPE) LS

For the Seventh Circuit

Chicago, Illinois 60604

November 2, 1984

Before

Hon. Joel M. Flaum, Circuit Judge

Hon. Wilber F. Pell, Jr., Senior

Circuit Judge

Hon. Richard B. Kellam, Senior

District Judge*

No. 83-2380, 83-2381

CARLOS S. SOTO and Appeal from

ROBERT DE MALLORY, the United

on behalf of them- States District

selves and others Court for the

Similarly situated, Eastern

Plaintiffs-Appellees District of

Wisconsin

vs.

No. 80-C-146,

WALTER J. DICKEY, 80-C-321

DONALD CLUSEN and Terence T.

GERALD HEERINGA, Evans, Judge

Defendants-Appellants.

CARLOS S. SOTO and ROBERT

DE MALLORY, on behalf of

themselves and all others

Similarly situated,

Plaintiffs-Appellees,

vs.

WALTER J. DICKEY,

DONALD CLUSEN, and

GERALD HEERINGS,

Defendants-Appellants.

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The slip opinion in the

above-entitled cause decided

September 20, 1984, is amended as

follows:

Footnote 4 on page 10 is deleted.

Footnotes 5 and 6 on page ll thus

become footnotes 4 and 5,

respectively, footnote 7 on page 15

becomes footnote 6, and footnote 8 on

page 20 becomes footnote 7.

Nos. 83-2380, 83-2381

On consideration of the petition

for rehearing and suggestion for

rehearing en banc filed by plaintiffs-

appellees, no judge in active service

has requested a vote thereon, and all

of the judges of the original panel

have voted to deny a rehearing.

Accordingly,

IT IS ORDERED that the aforesaid .

petition for rehearing be, and the

same is hereby, DENIED.

*The Honorable Richard J. Kellam,

Senior District Judge for the Eastern

District of Virginia, sitting by

Gesignation.

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taint

4 Wis. Admin. Code HSS 306.01

HSS 306.01 Applicability and

purpose. (1) Pursuant to authority

vested in the department of health and

social services by s. 227.014 (2),

Stats., the department adopts this

chapter which applies to the

Cepartment, division to participate in

activities within a secure surrounding

that may assist them in a successful

reintegration into the community.

4 Wis. Admin. Code HSS 306.03

HSS 306.03 Security policy.

Primary security objectives of the

division of corrections are to protect

the public, staff, and inmates and to

afford inmates the opportunity to

participate in a safe setting in

activities that equip them to be

successfully reintegrated into the

community.

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4 Wis. Admin. Code HSS 306.06

HSS 306.06 Use of force. (1) In

this chapter, the following

definitions apply:

(a) "Force" is the exercise of

strength or power to overcome

resistance or to compel another to act

or to refrain from acting ina

particular way. It includes the use

of chemical, mechanical, and physical

power or strength. Only so much force

may be used as is reasonably necessary

to achieve the objective for which it

is used. The use of excessive force

is forbidden.

(b) “Non-deadly force" is force

which the vu er reasonably believes

will not create a substantial risk of

causing death or great bodily injury

to another.

(c) "Deadly force" is force which

the user reasonably believes will

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create a substantial risk of causing

death or great bodily injury to

another.

(d) "Bodily injury" means physical

pain or injury, illness, or any

impairment of physical condition.

(e) “Great bodily injury” is

bodily injury which creates a high

probability of death, or which causes

serious permanent disfigurement, or

which causes a permanent or protracted

loss or impairment of the function of

any bodily member or organ or other

serious bodily injury.

(f) “Reasonably believes" means

that the actor believes that a certain

fact situation exists and such belief

under the circumstances is reasonable

even though erroneous.

(2) Corporal punishment of inmates

is forbidden.

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(3) Non-deadly force may be used

by correctional staff against inmates

only if the user of force reasonably

believes it is immediately necessary

to realize one of the following

purposes:

(a) To prevent death or bodily

injury to oneself or another;

(b) To prevent unlawful damage to

property that may result in death or

bodily injury to oneself or another;

(c) To regain control of an

institution or part of an institution

after an inmate takeover;

(d) To prevent the escape of an

inmate from an instituticn;

(e) To apprehend an inmate who has

excaped from an institution;

(f) To change the location of an

inmate; or

(£) (sic) To prevent unlawful

damage to property.

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(4) Deadly force may be used:

(a) For the purposes stated in

sub. (3) (a)-(c);

(b) To prevent escape anc

apprehend an escapee from a maximum or

medium security institution; or

(c) To prevent escape from a

minimum security institution if the

user reasonably believes that there is

a substantial risk that a person

escaping will cause death or bodily

hari to another unless immediately

apprehended.

(5) Deadly force may not be used

if its use creates a substantial

danger of harm to innocent third

parties, unless the danger created by

not using such force is greater than

the danger created by using it.

4 Wis. Admin. Code 306.08 [effective

through November l, 1984)

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HSS 306.08 Use of chemical agents.

(1) Chemical agents may be used only

as follows:

(a) To subdue an inmate or inmates

who pose an immediate threat of bodily

injury or death to another; or

(b) To regain control of an

institution or part of an institution.

(2) In confined or close areas,

only CN and CS chemical agents and

cannister dust chemical agents may be

used. In all respects, the

manufacturer's safety instructions

shall be followed.

(3) Tear gas grenades,

projectiles, pepper foggers, and riot

shells may only be used in outside

areas and large enclosed areas in

which the danger due to a reduction in

oxygen is minimal.

(4) The use of chemical agents

shall be authorized only by the

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superintendent. It may only be

discharged by a correctional officer

supervisor or by a trained staff

member under the immediate supervision

of such a supervisor. Each

institution shall insure that every

staff member authorized to use

chemical agents is properly trained in

its use.

(5) After chemical agents have

been used, all exposed inmates are to

be examined by the medical staff.

These inmates shall have their eyes

cleaned with water and be provided

with a change of clothing as soon as

possible. Exposed living quarters

Shall have bedding and mattress

changes and a thorough cleaning.

(6) Whenever a chemical agent has

been used, an incident report shall be

submitted to the director of the

bureau of institutions.

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4 Wis. Admin. Code 306.08 [as amended

effective November l, 1984]

HSS 306.08 Use of chemical agents.

(1) Definitions. In this section: (a)

"Chemical agent" means CN or CS or a

comparable incapacitating agent in a

form which includes, but is not

limited to, a tear gas grenade,

projectile, pepper fogger, riot shell,

Or cannister.

(b) "CN" means chloroacetophenone.

(c) "CS" means O-chlorobenzyl

malononitrile.

(2) Regulation. The use of a

chemical agent is a form of non-deadly

force and is regulated by this section.

(3) Emergency Situations.

Chemical agents may be used when

necessary in the following emergency

situations:

(a) To prevent imminent escape;

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(b) To subdue an inmate who poses

an immediate threat of bodily injury

or death to self or someone else; or

(c) To regain control of all or

part of an institution during a

disturbance as defined in s. HSS

306.22(1), or an emergency as defined

in s. HSS 306.23(1).

(4) Nonemergency situations. (a)

To deal with situations other than

those described in sub. (3), chemical

agents may only be used where s. HSS

306.06(3) permits the use of force and

the inmate physically threatens to use

immediate physical force, which may

involve a threat to use a weapon,

against the staff member. An inmate':

verbal threats do not justify using

chemical agents.

(b) In order to ensure that

chemical agents are used only as a

last resort in these situations, the

-16l1-

staff member shall take the following

steps, if feasible, before actually

employing a chemical agent:

1. Communicate with the inmate;

2. Ask one or more other

available people to communicate with

the inmate, such as another security

officer, a social worker, a crisis

intervention worker, a member of the

clergy, or a psychologist or

psychiatrist;

3. Wait for a reasonable period

of time, unless waiting would likely

result in an immediate risk of harm to

the inmate or to another person;

4. Make a show of force to the

inmate;

S. Use physical power and

strength; and

6. Use any other reasonable

means short of applying a chemical

agent to enforce an order.

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REID ALR GN REA AL OO EOP FOB LOE IER TY Or

(c) When s. HSS 306.06(3) permits

the use of force and a staff member

knows of an inmate's history of

violent behavior in similar situations

and reasonably believes that the

inmate will become violent in this

Situation, a chemical agent may be

used after the procedures in par. (b)l

to 4 have been followed but before the

inmate physically threatens to use

actual physical force.

(5) Prohibited Use. Chemical

agents shall not be used when:

(a) It is clear thac the chemical

agents would have no physical effect

on the inmate; or

(b) An inmate refuses to follow an

order and exhibits no other behavior

that would justify application of a

chemical agent under sub. (3).

(6) Order of Use. When use of CN

or CS is indicated, CN shall be used

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first. If CN is ineffective, CS may

be used.

(7) Use in Confined or Close

Areas. In confined or close areas,

only CN or CS may be used. In all

respects, the manufacturer's safety

instructions shall be followed.

(8) Use Outside and in Large

Enclosed Areas. Tear gas grenades,

projectiles, pepper foggers and riot

shells may only be used in outside

areas or in large enclosed areas in

which the danger due to a reduction in

oxygen is minimal.

(9) Authorization. Use of

chemical agents may only be authorized

by the following persons:

(a) In situations under sub.

(3) (b) or (c), by the superintendent

or his or her designee;

(b) In situations under sub.

(3) (a), by the senior staff member

present at the time and place; and

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(c) In all situations under sub.

(4), by the superintendent or deputy

Superintendent, or, if neither is

present at the institution, the

security director or, if that person

is not available, the assistant

superintendent on call or in charge of

the institution.

(10) Application. Chemical agents

may be employed only by a trained

supervisor or staff member. When a

chemical agent is used in a situation

under sub. (4), the use shall be under

the immediate supervision of a

supervisor. Each institution shall

ensure that every staff member

authorized to use chemical agents is

properly trained in their use.

(11) Medical Attention and

Clean-Up. As soon as possible after a

chemical agent has been used, all

inmates who have been exposed to the

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chemical #11 be examined by the

medical staff. These inmates shall

have their eyes cleaned with water and

be provided with a change of

clothing. Exposed living quarters

shall have bedding and mattresses

changed and shall be thoroughly

Cleaned. Whenever CS is used, exposed

inmates shall be offered an

opportunity to shower.

(12) Incident Report. AS scOon as

possible following the use of a

chemical agent, an incident report

shall be submitted to the director of

the division's bureau of adult

institutions. The incident report

shall be as thorough as possible,

describing:

(a) The problem leading to the use

of the chemical agent;

(b) The steps taken prior to the

use of the chemical agent;

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(c) Why those steps were

inadequate; and

(d) Measures taken following the

use of the chemical agent.

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