Petition for Writ of Certiorari — Owens v. French

Supreme Comt, US,

FILED

pee) |

85-1888 MAY 18 1008

PANIOL, JR

& i s

==} wOsEeH Ek

IN THE “gem

Supreme Court of the United Mates

October Term, 1985

NORMAN OWENS, CLOID SHULER,

and GORDON FAULKNER,

Petitioners,

VS.

RICHARD A. FRENCH, MORRIS E. DOZIER,

MARTIN W. BRADBERRY, and HENRY C. JENNINGS,

on behalf of themselves and

all others similarly situated,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

AND APPENDIX

LINLEY E. PEARSON

Attorney General of Indiana

DAviD A. ARTHUR

Deputy Attorney General

Office of Attorney Genera!

219 State House

Indianapolis, IN 46204-2794

Telephone: (317) 232-6332

Attorneys for Petitioners

Central Publishing Company, Inc., Indianapolis, IN 46206

EVECESNRIRNCE NENA

QUESTIONS PRESENTED FOR REVIEW

I. Whether the decision of the Seventh Circuit is

contrary to decisions of this Court in letting stand orders of

the District Court that are unnecessary to the vindication of

constitutional rights and which are further excessively

intrusive into the affairs of state government and not

narrowly directed to the conditions that the District Court

found to be unconstitutional.

II. Whether the decision of the Seventh Circuit is

contrary to decisions of this Court in affirming the District

Court’s order prescribing detailed procedures to be

followed when it is necessary to use mechanical restraints

against violent offenders in emergency situations.

III. Whether the decision of the Seventh Circuit is

contrary to law in failing to address issues that were

directly presented in the briefs and arguments.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ....:.. i

TAR OF AUTRE EID 6 os on cccsncassccsscass iv

FE Sr deer SEE 6) 20h ck ces cei a 2

IU AOMEIOE os 55 aes a jaan vennue Ceeeeleni nk: 2

CONSTITUTIONAL AND STATUTORY PROVI-

ite gh i lg | Irene rer yre dy wees 3

STATEMENT OF THE CASE ................... 3

A. Weete ee GC ia A eee 3

B. Course of Proceedings Below.................. 4

C. Facts Material to the Consideration of the

actions FUORI aos 65055 cag hh 4che eee 6

REASONS FOR ALLOWANCE OF THE WRIT .. 15

I. The Decision of the Seventh Circuit is Contrary to

Decisions of this Court in Letting Stand Orders of

the District Court that are Unnecessary to the

Vindication of Constitutional Rights and which

are Further Excessively Intrusive into the

Affairs of State Government and not Narrowly

Directed to the Conditions that the District Court

found to be Unconstitutional .................. 15

II. The Decision of the Seventh Circuit is Contrary to

Decisions of this Court in Affirming the District

Court’s Order Prescribing Detailed Procedures

to be Followed when it is Necessary to use

Mechanical Restraints against Violent Offenders

in Emergency Situations................eeeee- 22

ii

III. The Decision of the Seventh Circuit is Contrary to

Law in Failing to Address Issues That Were

EE | Sa 26

TSE RE PRLS a aa 26

ee ec uckn eau abenndcaweads A-1

ill

TABLE OF AUTHORITIES

CASES: Page:

Atiyeh v. Capps, 449 U.S. 1312 (1981) .............. 17

Bell v. Wolfish, 411 U.S. 520 (1979)..... 17, 19, 20, 22, 23

Burks v. Walsh, 461 F.Supp. 454(W.D. Mo. 1978), affd

sub nom Burks v. Teasdale, 603 F.2d 59 (8th Cir.

RN er aa A Meer ao yerrire ee rer eee pape 17

Chapman v. Rhodes, 434 F.Supp. 1007 (S.D. Ohio

1977), affd. 624 F.2d 1099 (6th Cir. 1980) ...... 15

Crowe v. Leeke, 540 F.2d 740 (4th Cir. 1976)........ 17

French v. Owens, 777 F.2d 1259 (7th Cir. 1985) ..... 2

French v. Owens, 538 F.Supp. 910 (S.D. Ind. 1982).. 2, 5

Hite v. Leeke, 564 F.2d 740 (4th Cir. 1976).......... 17

Jones v. North Carolina Prisoners’ Union, 433 U.S.

IN Fo 6k a ire ce ee 21

MCI Concord Advisory Board v. Hall, 447 F.Supp. 398

ED sok ek CAcda be ee keearebawnusaseete 17

Rhodes v. Chapman, 452 U.S. 337 (1981)...... 15, 16, 17,

18, 19, 21

Ruiz v. Estelle, 579 F.2d 1115 (5th Cir. 1982), cert.

denied 460 U.S. 1042 (1983) ......... cc cceccees 22

Rummel v. Estelle, 445 U.S. 268 (1980) ............. 16

Smith v. Fairman, 690 F.2d 122 (7th Cir. 1982), cert.

dented 661 UB. BOG (RBG) on cn cc vce ccccscceces 20

Union County Jail Inmates v. DiBuono, 713 F.2d 984

(3rd Cir. 1983), cert. denied U.S., 104 S.Ct. 1600 22

West v. Edwards, 439 F.Supp. 722 (D. S.C. 1977)... 17

Whitley v. Albers, U.S., 106 S.Ct. 1078 (1986) ....... 25

Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981) .... 22

iv

. =

CONSTITUTIONAL PROVISIONS

Constitution of the United States. Amendment

WU ve acv svc ck yeas ecnadadacsonsny ene ae

Constitution of the United States, Amendment

RUNNIN trast cuk Gases caeee ce oe ck 3, 15

Article I, §18, Constitution of Indiana.............. |

STATUTES:

Se SPs MU GD ann oo va ona cacusucccannncn 2

Be I ks bs Oe peewee au ae ee 2

Cet Se acs isa viva beh ee ee 3

Indiana Code §11-1-1.1-26 ......................... 4

RULES:

Rule 17, Rules of the Supreme Court of the United

WE Nasencs teach eagedee Cee 2

Rule 20.2, Rules of the Supreme Court of the United

i TEE ee Ee De yp een) UG 2

v

IN THE

Supreme Court of the United States

October Term, 1985

NORMAN OWENS, CLOID SHULER,

and GORDON FAULKNER,

Petitioners,

vs.

RICHARD A. FRENCH, MorRIS E. DOZIER,

MARTIN W. BRADBERRY, and HENRY C. JENNINGS,

on behalf of themselves and

all others similarly situated,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT:

AND APPENDIX

Petitioners Norman Owens, Superintendent of the

Indiana Reformatory, Cloid Shuler, Deputy Commissioner

for Operations for the Indiana Department of Correction,

and Gordon Faulkner, Commissioner of the Indiana

Department of Correction, respectfully pray this Court

issue a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit

(hereafter Seventh Circuit) entered in cause numbers 83-

2280 and 85-1065 on November 26, 1985, which affirmed in

part and reversed and remanded in part a decision of the

2

United States District Court for the Southern District of

Indiana, Indianapolis Division (hereafter District Court).

Respondents are Richard A. French, Morris E. Dozier,

Martin W. Bradberry, and Henry C. Jennings. The District

Court certified a class of plaintiffs as all persons who are or

may in the future be confined at the Indiana Reformatory.

OPINIONS BELOW

The decision of the Seventh Circuit issued on November

26, 1985, is reported at 777 F.2d 1259 (7th Cir. 1985), and is

found in the Appendix beginning at page A-1. The first

decision of the District Court is reported at 538 F.Supp. 910

(S.D. Ind. 1982), and is found in the Appendix beginning at

page A-50. A preliminary injunction made permanent in

the reported decision of the District Court is unreported

and is found in the Appendix at page A-91. The second

decision of the District Court entered on July 7, 1983, is

unreported and is found in the Appendix at page A-45. The

third decision of the District Court entered on December

14, 1984, is unreported and is found in the Appendix at

page A-22.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

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

The decision of the Seventh Circuit was entered on

November 26, 1985, and rehearing with suggestion for

rehearing en banc was denied on February 12, 1986. This

petition is timely filed in that it is filed prior to the

expiration of the ninety (20) day period from the denial of

the petition for rehearing allowed by 28 U.S.C. §2102 (c)

and Rule 20.2.

a

3

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United

States provides as follows:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

The Fourteenth Amendment to the Constitution of the

United States, Section One, provides, as follows:

All persons born or naturalized in the United States,

and all subject to the jurisdiction thereof, are citizens

of the United States and of the state wherein they

reside. No state shall made or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

42 United States Code 1983 provides as follows:

Every person who, under color of any statute,

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

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

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

other proper proceeding for redress. For the purposes

of this section, an Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

STATEMENT OF THE CASE

A. Nature of the Case

This petition arises from an affirmance in part, vacating

in part, and remanding in part for further proceedings by

the Seventh Circuit. This cause concerns a civil rights

4

action filed by offenders at the Indiana Reformatory and

who challenged conditions, policies, and practices at that

maximum security institution.

B. Course of Proceedings Below

This cause originated with the filing of a pro se complaint

on November 21, 1975. The complaint was filed by four

offenders then confined at the Reformatory. The

defendants named were various state officials and

employees. Plaintiffs proceeded in forma pauperis.

Counsel for the offenders was obtained by the District

Court.

On May 13, 1976, the amended class action complaint

was filed, on behalf of the same four offenders. Named as

defendants were the Superintendent of the Reformatory,

the Executive Director of the Adult Authority for the

Indiana Department of Correction, and the Commissioner

of the Department. The persons in two of the three positions

changed while the action was pending, and substitutions of

the parties were requested and granted.

On October 6, 1977, Respondents filed their motion to

determine propriety of class action. The District Court, on

December 20, granted the motion and determined the class

to be all persons who are or may in the future be confined at

the Reformatory.

On March 10, 1978, the United States of America sought

and was granted leave to participate as amicus curiae.

Respondents requested leave on March 14, 1978, to

amend their complaint to assert the existence of pendent

jurisdiction and to add claims under Article I, §18 of the

Constitution of Indiana and under Indiana Code §11-1-1.1-

26.

Evidence was heard on sixteen (16) days in July and

August of 1978. Post-trial briefs, including reply briefs,

were filed by Petitioners, Respondents, and the Amicus.

All filings were completed by October 18, 1978.

5

The case was then taken under advisement.

On February 24, 1981, Respondents moved to re-open the

record as to one of the living units at the Reformatory and

as to the practice of mechanically restraining offenders.

This motion was granted on February 25, 1981.

On March 1, 1982, the District Court took further

evidence, both as to general conditions at the Reformatory

and as to the two issues for which the record was re-opened.

On May 7, 1982, the District Court issued its

memorandum of decision, containing its findings of fact

and conclusions of law. The decision is reported as F’rench v.

Owens, 538 F.Supp. 910 (S.D. Ind. 1982), and is found in the

Appendix beginning at page A-50. An order in twenty-two

(22) rhetorical paragraphs was entered at/the same time.

This is found in the Appendix, beginning at page A-85. As

part of the Order (419), the District Court made permanent

a preliminary injunction that had been issued at the

conclusion of the taking of testimony on March 5, 1982, and

which concerned the use of mechanical restraints. The

preliminary injunction is found in the Appendix,

beginning at page A-91.

On May 17, 1982, Petitioners filed a motion to stay or to

amend the order.

On June 4, 1982, Petitioners filed a notice of appeal.

Appeal to the Seventh Circuit was attempted, but that

appeal was dismissed by the Court as premature, in Cause

No. 82-1875, due to the filing and pendency of the motion to

amend.

The motion for stay or to amend the order remained

pending before the District Court for thirteen months, until

July 7, 1983, when the District Court amended paragraphs

2 and 3 of the order as to the date for compliance only, and

amended paragraphs 9 and 11 of the order of May 7, 1982.

In all other respects, the motion to stay or to amend was

denied. A copy of the July 7, 1983, order of the District

Court is found in the Appendix, beginning at page A-45.

6

Another appeal was taken to the Seventh Circuit by

Petitioners. During the pendency of that appeal, and before

oral argument was to be heard by the Seventh Circuit,

Petitioners requested that the District Court grant them

additional time to comply with certain orders relating to

the prohibition on the use of double-decked bunk beds in

dormitory areas and as to limits on institutional population.

On the 30th day of August, 1984, the District Court entered

an order indicating that it was “inclined” to grant the

additional time but that it could not do so in light of the

pendency of the appeal. Appendix, at page A-42.

Thereafter, Petitioners sought a stay of the orders of the

District Court pending decision of the fully briefed appeal,

but the Seventh Circuit instead remanded the case to the

District Court for determination of the requested

enlargements of time.

On the 14th day of December, 1984, the District Court

entered an amended order and memorandum. The order

and memorandum are found in the Appendix beginning at

pages A-36 and A-22, respectively. Petitioners again

appealed to the Seventh Circuit, which consolidated all

appeals and ordered supplemental briefing. Appendix, at

page A-20.

On the 26th day of November, 1985, following argument,

the Seventh Circuit entered its decision, affirming in part,

reversing in part, and remanding in part the decision of the

District Court. The decision is found in the Appendix

beginning at page A-1l. Petitioners timely petitioned

(following the grant of an enlargement of time) the Seventh

Circuit for rehearing, with suggestion for rehearing en

banc. That petition was denied on the 12th day of February,

1986, with one judge voting to grant the petition. This

ruling is found in the Appendix at page A-18.

C. Facts Material to the

Consideration of the Questions Presented

The following is 2n overview of the facilities, programs,

and operations of the Reformatory. The facts below are

7

quoted from or paraphrasing the findings of fact of the

District Court.

1. The Institution

As described by the District Court:

The Indiana Reformatory is a maximum security

correctional facility housing adult male felons. It was

built in 1923. The Reformatory property is

surrounded on three sides by high walls, with the

fourth side enclosed by the cellhouse building. There

are some buildings outside the walls, including a

dormitory for inmates and a farm operation. The

Reformatory has 35 acres within its walls and 1,900

acres in the entire institution; few inmates are

permitted outside the walls. Appendix, p. A-54.

Inmates are housed in three cellhouses and two

dormitory buildings inside the walls, and one

dormitory located outside the walls.

There are 297 usable cells in J cellhouse, 317 in H

cellhouse, and 319 in G cellhouse. Each cellhouse

consists of an inside cellblock, set back from the

outside walls of the cellhouse. The ceils are located

back to back and are separated by aservice area which

runs the length of the cells and where wiring and

plumbing are located. A row of cells on a particular

tier is known as a range.

The cells in G and H cellhouses contain 44 square

feet, and cells in J ceilhouse contain 47.6 square feet.

The cells have three solid walls and a barred front.

Each cell contains a sink with cold running water, an

uncovered toilet, one or two lockers, and one or two

beds. Appendix, p. A-55.

[There is] a separate housing unit for inmates who

are considered to require segregation from the

general inmate population. This unit is known as

administrative segregation or “A.S.” This unit

consists of 100 cells in two tiers, arranged back to

back. There are 26 cells on the lower tier and 24 cells

8

on the upper tier in each section. The cells have the

same size, appearance, and furnishings as the cells in

the cellhouses.

One side of administrative segregation is used for

inmates sent to the unit as discipline for infractions of

Reformatory rules. (The “DLU”.) The other side of the

two-tier cellblock is used to house three types of

inmates: those who are confined in segregation for

their own protection (self-lock-up), those who are

under investigation for violating an institutional rule,

and pretrial detainees transferred to the Reformatory

(safekeepers).

The unit known as isolation or the maximum

restraint unit (“MRU”) is on the ground floor of the

administrative segregation building. The MRU is

used to provide even more secure confinement than

disciplinary segregation. Each of the cells in isolation

has a barred door which is covered with mesh which is

- flush with the wall of the cell. There is also a solid

metal door which has a 4” x 6” peephole as the only

means of entrance of light. Appendix, p. A-57.

Besides the cellhouses, inmates are housed in

several dormitory units, two located inside the walls

and one located outside the walls. One inside

dormitory is referred to as the K dormitory complex

and consists of six separate rooms on two floors. All

rooms are double bunked, and nearly all bunks are

occupied.

The sizes of the dormitories and number of bunks in

each are:

K-1 — 3,134 square feet — 48 bunks

K-2 — 1,892 square feet — 30 bunks

K-3 — 2,509 square feet — 48 bunks

K-4 — 2,509 square feet — 48 bunks

K-5 — 7,988 square feet — 112 bunks

K-6 — 6,438 square feet — 96 bunks

A part of the area in each room in K dormitory is a

common area where tables are located for playing

9

cards, checkers, etc. Each room had one television set,

and the two larger rooms have two. Appendix, pp. A-

58 — A-59.

The other inside dormitory is called O dormitory. It

contains one large room, O-1, and eight relatively

small rooms. This space was not constructed for

housing purposes, but has been converted for that use

since 1978 because of the influx of new prisoners. O

dormitory was opened May 1, 1981. The nine O rooms

together contain 8,618 square feet of space, housing

210 persons. Fifty persons occupy 3,190 square feet in

room QO-1, while 160 persons are housed in the

remaining 5,428 square feet. Appendix, p. A-59.

2. Recreation

For those inmates who are in the general population

and have work or study assignments, recreation

during good weather months is adequate. During this

time of year they are afforded approximately 90

minutes of outdoor recreation per day, in addition to

the time spent out of their cells at meals and at their

jobs. the outdoor facilities include two baseball

diamonds, an area for football or soccer, horseshoe

pits, four handball courts, two basketball courts, a

volleyball court, a shuffleboard area, and room for

jogging.

In the winter months and on rainy days, however,

exercise is limited to the so-called fieldhouse, which is

the sole facility for indoor recreation. The fieldhouse

contains a tiny gymnasium simultaneously used for

basketball, weight-lifting, ping pong, punching bags,

and television. There are four television sets hung

above the bleachers, two on each side of the basketball

floor. Appendix, pp. A-60 — A-61.

Persons in “idle-hold,” for example, are presently

allowed a 90 minute recreation period each weekday,

and another hour every Saturday or Sunday. They are

allowed 45 minutes for each meal, and are afforded a

10 minute shower period each night after the

10

recreation period. Otherwise, they are locked in their

cells all day.

Prisoners on hold status are not permitted to visit

the library (other than the law library) and are not

permitted to check books out of the library. Appendix,

pp. A-61 — A-62.

Those in administrative segregation ... [were]

permitted to go to the gymnasium two days a week for

a period from 8:00-10:30 a.m., and to the commissary

once a week for 45 to 60 minutes. They are allowed to

make one 5 to 10 minute phone call per month.

Otherwise they are locked up all the time, including

meal time, as their meals are brought to them and

served in their cells. Those who are “red-tagged” are

held in their cells 24 hours per day except for a shower.

When the weather permits outside exercise, they are

allowed 30 minutes per day in asmall fenced area just

outside the A.S. building. The area is about 30’ x 50’

~ and no equipment is furnished other than a basketball,

checkers and a checkerboard.

Although the dormitories have television sets, none

is available in the cellblocks. There is no day room

space provided in the cellblocks. Appendix, p. A-62.

3. Medical Care

At the time of the second phase of the trial (i.e., March,

1982), the medical staff at the Reformatory consisted of one

medical doctor, three physician assistants, and nine

medical technicians. There was also one medica! doctor, a

urologist, who visited the Reformatory one evening per

week. There were also two dentists, one pharmacist, two

clerks, a part-time optometrist, and an infirmary

administrator.

The District Court described the infirmary as follows:

The medical facility is contained in a separate two-

story structure of brick construction within the walls.

The first floor contains a sick call area, administrative

offices, pharmacy, emergency room, dental

11

department, segregation section, radiology unit and

an unused kitchen. The basement and first floor

hallway are used as a waiting area for those attending

sick call. On the second floor, there is an infirmary

section for in-patients consisting of a ward and rooms

for medical isolation. There are also areas for

laboratory and medicai staff offices, but the

laboratory is not in use. Appendix, p. A-62.

The District Court described general medical procedures

as follows:

Sick call for the administrative segregation and the

MRU consists of a medical technician who goes to the

cellhouse and communicates through the locked door.

Dr. Choi walks through the area once a week but

rarely examines the inmates. Those on hold status in

the general population sign up on a sheet with the

cellhouse clerk. A medical technician reviews the

sheet and decides who should be given over-the-

counter medications or called out to see the physician

assistant, or some other option. Those in the general

population group who have jobs sign out with their

work supervisor and come to the infirmary where they

are seen by a medical technician — a classification not

recognized by Indiana laws. The medical technicians

have had military corpsman training. This training

emphasizes first aid but does not include physical

diagnosis, which is part of the physician and physician

assistant training program. Appendix, pp. A-64 — A-

65.

Inmates with minor ailments who require

confinement to bed but no nursing care, for a short

term are sent to the second fleor infirmary at the

institution. This room contains two rows of old beds.

There is no mechanical ventilation, and no medical

personnel are stationed in the ward.

Inmates with significant illness or injury requiring

more specialized physician consultation or care or

skilled nursing are transported to the Wishard

Memorial Hospital, a unit of the Indiana University

12

Medical Center. Transportation is provided for by van

or an ambulance and usually involves about 40

minutes of travel. There are usually, at any one time,

approximately 10 to 12 patients from the Department

of Corrections retained at this hospital. Wishard also

provides all types of outpatient consultation and

during an average week the Reformatory may send 10

to 15 patients to Indianapolis for this purpose. In some

instances where nearer facilities are necessary,

hospitalization is utilized in nearby Anderson,

Indiana. Appendix, p. A-65.

At the time of the 1982 phase of the trial, the mental

health care staff consisted of one full-time clinical

psychologist, one full-time masters level behavioral

clinician, one consulting psychiatrist for three hours per

week, and one consulting psychologist for eight hours per

week to conduct individual counseling and group therapy.

Appendix, p. A-63.

4. Education

The District Court described academic and vocational

education as follows:

The educational programs at the Reformatory

consist of Adult Basic Education (A.B.E.), General

Equivalency Degree (G.E.D.), and college

correspondence courses. Some college courses are

taught inside the Reformatory by professors from Ball

State University. All A.B.E. and G.E.D. instruction is

at state expense. Inmates in protective custody are not

able to participate in educational programs, except for

correspondence courses.

An associate degree can be obtained in Liberal Arts,

Legal Assistance, Business Administration, or

Criminal! Justice upon successful completion of a two

year program. Inmates must pay at least part of the

cost of tuition, fees and books of the college programs.

Since inmates in educational programs are paid 40

cents per day, the lowest inmate pay rate at the

13

Reformatory, many inmates cannot participate in the

college programs because of inability to pay.

The library is open from 9:30 a.m. to 7:30 p.m.,

except during meal times. However, as previously

stated, those on idle-hold status are not permitted to

use it. Those on self-lockup are likewise not permitted

to go to the library, but may have books delivered to

their cells. Appendix, pp. A-69 — A-70.

There are twelve factories or shops in the Industries

Division, which inciude five wooden furniture

factories, a metal furniture factory, and a dry kiln, a

freight house, a mattress factory, a sign shop, a tag

shop, and a tailor shop. They presently employ 230

inmates, which is 30 more than the authorized number

of positions.

There are 13 different vocational shops, down from

15 in 1978, which teach such skills as auto body work,

upholstery, printing, bricklaying, welding, etc. These

programs take anywhere from four months to one year

to complete, and there are no advanced courses

available. Inmates who have completed vocational

training in one area are discouraged from taking

courses in any other area. There are 136 inmates in

these programs.... Appendix, p. A-70.

5. Fire Safety

The District Court found that:

The last report of the State Fire Marshall in

evidence, dated July 20, 1981, listed 122 separate

remedial activities necessary to place all buildings

and procedures in compliance with state fire laws and

regulations. Appendix, p. A-72.

6. Food Services

The District Court described food services at the

Reformatory as follows:

Meais for the general population are served three

times a day in a central dining room or mess hall, and

14

are based upon a master menu cycle of five weeks. The

menus provide adequate variety and sufficiently meet

nutritional standards. The inmates eat with plastic

utensils.

Those inmates confined in the various segregation

units are fed the same diet as those in the general

population, and the food is prepared in the same

kitchen. Food is served to these inmates in their cells,

after being heated on a hot cart at the unit. However,

there is no dietician on the staff, and those inmates who

require special diets, such a diabetics, must rely on the

food service manager and an inmate assigned to this

task. Appendix, pp. A-72 — A-73.

7. Environmental Health

The District Court found several potential health

problems in the food service and storage areas. By July 7,

1983, these problems were resolved due to a rehabilitation

project for which funds were appropriated prior to the

second phase of trial and resulting judgment. Appendix, p.

A-46.

The District Court found that roaches and rodents were

“under control” in living areas, but that unscreened

windows allowed flies, flying insects, and birds into the

areas. The District Court also found the plumbing chases to

be “dirty.” Offenders are not to be in the plumbing chases.

Appendix, p. A-74.

8. Protection of Offenders

The District Court concluded that “(s]ecurity of inmates

from physical attacks by other inmates is a problem at the

Reformatory”, but pointed to no specific facts or incidents

to support its conclusion. Appendix, pp. A-75 — A-77.

15

REASONS FOR ALLOWANCE OF THE WRIT

I.

THE DECISION OF THE SEVENTH CIRCUIT IS

CONTRARY TO DECISIONS OF THIS COURT IN

LETTING STAND ORDERS OF THE DISTRICT

COURT THAT ARE UNNECESSARY TO THE

VINDICATION OF CONSTITUTIONAL RIGHTS

AND WHICH ARE FURTHER EXCESSIVELY

INTRUSIVE INTO THE AFFAIRS OF STATE

GOVERNMENT AND NOT NARROWLY

DIRECTED TO THE CONDITIONS THAT THE

DISTRICT COURT FOUND TO BE

UNCONSTITUTIONAL

In 1981 this Court decided Rhodes v. Chapman, 452 U.S.

337 (1981), considering “for the first time the limitation

that the Eighth Amendment...imposes upon the

conditions in which a State may confine those convicted of

crimes.” Jd. at 344-45. The specific question in Rhodes was

“whether the housing of two inmates in a single cell. . .is

cruel and unusual punishment prohibited by the Eighth

and Fourteenth Amendments.” Jd. at 342. That question,

answered by this Court in the negative, is directly relevant

to the issues pertaining to crowded conditions raised in the

instant cause. In Rhodes the issue was determined in

regard to a relatively new prison. This Court has not yet

reviewed the applicability and effect of the Eighth

Amendment in terms of an older correctional institution,

such as the Indiana Reformatory.

In Rhodes, the lower courts had held that double-celling

constituted cruel and unusual punishment prohibited by

the Eighth Amendment. See Chapman v. Rhodes, 434

F.Supp. 1007 (S.D. Ohio 1977), aff'd, 624 F.2d 1099 (6th Cir.

1980). This Court reversed, reasoning that the Eighth

Amendment prohibits only those punishments that

involve the unnecessary and wanton infliction of pain’...

or are grossly disproportionate to the severity of the

16

erime....” Id. at 346 (citations omitted). It was concluded

that overcrowding or double-celling does not contravene

that prohibition.

A central message of Rhodes is that the Eighth

Amendment does not proscribe prison conditions that do

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

physical pain. Mere discomfort, frustration, or distress are

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

the extent that [prison] conditions are restrictive and even

harsh, they are part of the penalty that criminal offenders

pay for their offenses against society. ... [TJhe Constitution

does not mandate comfortable prisons, and prisons ...

which house persons convicted of serious crimes, cannot be

free of discomfort.” Jd. at 347, 349, and 349 n.14.

“(Serious deprivations of basic human needs,” id. at 347,

may be unconstitutional to the extent that they cause or

lead to “pain without any penological purpose.” Id. On the

other hand, merely “psychological problems ... [such as]

an increase in tension and aggression,” 7d. at 349 n.15, were

treated as constitutionally insignificant.

The decision in Rhodes emphasized that judgments

respecting prison conditions must be informed by

“objective factors” and reflect “objective indicia,” id. at 346

(citations omitted), and that “Eighth Amendment

judgments should neither be nor appear to be merely the

subjective views’ of judges.” Jd. at 346, quoting Rummel v.

Estelle, 445 U.S. 268, 275 (1980). This Court instructed the

federal courts to refrain from imposing their own views of

prison administration on the states, absent clear

constitutional violations stemming from objective factors.

(T Jhese considerations properly are weighed by the

legislature and prison administration rather than a

court .... [Clourts cannot assume that state

legislatures and prison officials are insensitive to the

requirements of the Constitution or to the perplexing

sociological problems of how best to achieve the goals

of the penal function in the criminal justice system.

Id. at 350.

17

In particular, this Court has admonished the federal courts

that “a prison’s internal security is peculiarly a matter

normally left to the discretion of prison administrators.” Jd.

at 349. “To the extent that [prison] conditions are

restrictive and even harsh, they are part of the penalty that

criminal offenders pay for offenses against society....” Jd.

at 349. As was further observed in Atiyeh v. Capps, 449

U.S. 1312, 1815-16 (1981) (Rehnquist, J., in chambers),

“nobody promised [convicted felons] a rose garden: and I

know of nothing in the Eighth Amendment which requires

that they be housed in a manner most pleasing to them, or

considered even by most knowledgeable penal authorities

to be likely to avoid confrontations, psychological

depression, and the like.”

This Court has never held an institution to be

constitutionally overcrowded. In both Rhodes v. Chapman

and Bell v. Wolfish, 411 U.S. 520 (1979) this Court

specifically rejected the notion that double-celling or

overcrowding is a constitutional violation per se. In both

Bell and Rhodes, this Court upheld as constitutionally

permissible double-celling that resulted in the allocation of

less than 40 square feet of living space per prisoner. See also

Hite v. Leeke, 564 F.2d 670, 673-75 (4th Cir. 1977) (double-

celling in 65 square foot cells held constitutional); Crowe v.

Leeke, 540 F.2d 740, 742 (4th Cir. 1976) (triple-celling in 68

square foot cells held constitutional); Burks v. Walsh, 461

F.Supp. 454, 489-90 (W.D. Mo. 1978), aff'd. sub. nom. Burks

v. Teasdale, 603 F.2d 59 (8th Cir. 1979) (double-celling in 49

square foot cells held constitutional); MCI Concord

Advisory Board v. Hall, 447 F.Supp. 398 (D. Mass. 1978)

(double-celling in 66 square foot cells held constitutional);

West v. Edwards, 439 F.Supp. 722 (D. S.C. 1977) (triple-

celling in 66 square foot cells held constitutional).

This Court has emphasized that a finding of

unconstitutionality may be predicated only upon a showing

of precisely that “concrete injury” that the District Court

and Seventh Circuit treated as irrelevant. Crowded

18

conditions violate the Eighth Amendmentonly where there

is “evidence that {the specific] double-celling [or crowded

condition] ... either inflicts unnecessary or wanton pain or

is grossly disproportionate to the severity of crimes

warranting imprisonment.” Rhodes v. Chapman, 452 US.

at 347. The conditions at the Reformatory are less than

ideal: but, there is no evidence or finding that conditions at

the Reformatory cause the actual, physical pain with which

this Court was concerned in Rhodes v. Chapman or that

conditions constitute grossly disproportionate punishment.

The District Court’s negative findings with regard to

housing concern ventilation, lighting, shower times, public

health standards, and toilets. None of these findings is tied

— by the District Court, by the Seventh Circuit, or in fact —

to the population level, to double-celling, or to double-

bunking — with the exception of the constitutionally

irrelevant public heaith standards.

The issues of the use of double-decked bunk beds in

dormitory areas and population go hand in hand. The issue

of double-celling is clearly also involved, but for purposes of

this facet of the issue and to show that these can be treated

separately, it will be assumed (without conceding) for

purposes of this issue that double-celling is not allowed.

Looking at the square footage provided each offender

assigned to a dormitory under the order of the District

Court shows the error of the District Court and the Seventh

Circuit under the guidelines of this Court.

With the population limit imposed by the District Court,

the number of offenders in an inside dormitory setting

would be 178. The total for the two inside dormitories is

33,088 square feet. Therefore, the square footage per

offender in K and O Dormitories would be almost 186

square feet.

Even if the population of the outside dormitory (130, as

stipulated to the District Court) were reduced by one half

due to a prohibition of the use of double-decked bunk beds,

19

the number of offenders in a dormitory setting within the

walls would be 243 and the square footage per offender

would be more than 136.

These figures are so far greater than any standard that

has ever been applied by this Court or by any other Circuit

Court of Appeals (including such standards as those

suggested by the American Correctional Association) that

certiorari must be granted to bring the orders of the

District Court and Seventh Circuit in line with

constitutional requirements and to bring the decision

within standards recognized by this Court and in line with

decisions of other Circuits on the same issue.

_ The decision of the Seventh Circuit misapprehends and

misstates the facts as to the assignment of two offenders to

the same cell, affecting it’s review of the constitutionality of

that practice at the Indiana Reformatory. The Seventh

Circuit stated that offenders who are double-celled remain

in their cells for twenty to twenty-three hours per day. That

is simply not the case. The District Court found that

offenders in protective custody might be in their cells for up

to twenty-three hours per day, a situation made necessary

by reason of their self-imposed status, but offenders in the

general population of the Reformatory are out of their cells

for a substantial part of their day. Because the

constitutionality of double-celling depends upon both the

time that the cell is occupied by two offenders and the size

of the cell under the applicable decisions of this Court, and

because of the incorrect proposition in the opinion that all

double-celled offenders spend almost the entire day in the

cell, certiorari should be granted on this point to secure

compliance with the standards set by this Court applied to

the correct facts.

Neither Rhodes nor Bell set any minimum requirements

under which double-celling is permissible. Each held that

under the facts of the case, no constitutional violation was

present. The issue in each was how the situation was

managed. It is appropriately managed and administered at

20

the Reformatory, and therefore no constitutional violation

is present under the decisions of this Court. The most that

the evidence shows is that double-celling is uncomfortable

or inconvenient. Neither comfort nor convenience is

mandated by the Constitution. Bell v. Wolfish, supra. There

is no evidence of pervasive violence between cell partners,

as one would expect. There is not the concrete injury that

this Court would require for a finding that a constitutional

violation is present.

The facts of this case are legally identical to those in

Smith v. Fairman, 690 F.2d 122 (7th Cir. 1982), cert. denied

461 U.S. 946 (1984), but the Seventh Circuit came to a

directly opposite conclusion. While the available floor

space at the Reformatory is approximately 22 to 23 square

feet, the cells in Smith v. Fairman had as little as nine (9)

square feet of floor space available. As at the Reformatory,

some offenders in Smith spent most of their days in their

cells. Despite the virtual identity of facts in two cases before

the same court, the Seventh Circuit declined to rule

consistently. Therefore, this Court should grant certiorari

to secure conformity among decisions within the Seventh

Circuit itself.

The remedies actually ordered in this case reveal a total

disregard for sound notions of judicial restraint and for this

Court’s prudently adopted limitations on the proper role of

the judiciary in matters of prison administration. The

District Court and the Seventh Circuit clearly violated the

dictate that judgments in cases such as this must “spring

from constitutional requirements ... rather than a court’s

idea of how best to operate a detention facility.” Bell v.

Wolfish, 411 U.S. at 539.

The District Court’s order affirmed by the Seventh

Circuit is an order that grants double remedies to cure

violations found. The Seventh Circuit, in its decision, did

not address this issue as presented by the Petitioners, but

tacitly accepted the position of the Respondents that

whenever a violation is found the door is thereby opened to

21

the District Court to order extensive relief — a position that

is clearly contrary to existing precedent.

To be more specific, the Seventh Circuit did not reverse,

vacate, or modify either the order to reduce the population

at the Reformatory or the orders directed to the conditions

that led the District Court to conclude that the Reformatory

is unconstitutionally overcrowded. Thus, the District

Court’s order, which addresses both the population and the

conditions upon which the conclusion of unconstitutional

overcrowding is based, was upheld. When an institution is

determined to be unconstitutionally overcrowded due to

the existence of certain conditions, and each of those

conditions is eliminated, then the institution can no longer

be unconstitutionally overcrowded. Unconstitutional

overcrowding cannot be both cause and effect.

Instead of affirming both the order to reduce population

and the orders directed to specific conditions, the Seventh

Circuit should have directed the District Court to allow the

Petitioners to suggest or chose a remedy appropriate to the

conditions. The formulation of the specific remedy must be

left to the informed determination of the officials. See Jones

v. North Carolina Prisoners’ Union, 433 U.S. 119, 132-33

(1977). Otherwise, the federal courts are handing down

judgments that not only appear to be but are, in fact, their

own views of how best to operate a prison. Cf. Rhodes ».

Chapman, 452 U.S. at 346.

If, as the Seventh Circuit found, the Reformatory is

unconstitutionally overcrowded because of deficiencies in

certain areas, it follows that when the deficiencies are

eliminated the institution will not be unconstitutionally

overcrowded, and any remedy that is ordered must be

narrowly confined to rectifying the unconstitutional

condition. The population reduction is a perpetual

injunction, as are the orders pertaining to staffing, safety,

medical care, and the kitchen and dining room. Thus, the

bases upon which the institution was found to be

22

unconstitutionally overcrowded will be eliminated and the

population will be forever reduced as well. Remedies must

be narrowly tailored to the violation found. Rhodes v.

Chapman, 452 U.S. at 351. The choice as to the particular

course of action as between two or more courses that will

lead to the same result (7.e., constitutional conditions) must

be left to the prison administrators, who are more informed

as to the minutiae of the daily operation of a prison. Cf. Bell

v. Wolfish, 411 U.S. at 545-46.

The decision of the Seventh Circuit is in conflict with

recent decisions of the Third, Fifth, and Ninth Circuits,

Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3rd

Cir. 1983), cert. denied U.S., 104 S.Ct. 1600; Ruiz v. Estelle,

579 F.2d 1115 (5th Cir. 1982), cert. denied 460 U.S. 1042

(1983); and, Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981).

In each of these cases, the Courts held that the proper

method by which the federal courts are to proceed is by

determining the least intrusive method necessary to

eliminate unconstitutional conditions.

This Court should grant certiorari to address the issues of

the proper standard for determining whether an older

correctional facility is constitutionally overcrowded. and

the scope of relief to be ordered if a violation is found, and to

resolve the lack of uniformity among the Circuits.

II.

THE DECISION OF THE SEVENTH CIRCUIT IS

CONTRARY TO DECISIONS OF THIS COURT IN

AFFIRMING THE ORDER PRESCRIBING

DETAILED PROCEDURES TO BE FOLLOWED

WHEN IT IS NECESSARY TO USE

MECHANICAL RESTRAINTS AGAINST

VIOLENT OFFENDERS IN EMERGENCY

SITUATIONS

The decision of the Seventh Circuit is contrary to law in

affirming the District Court’s order prescribing detailed

23

procedures to be followed when it is necessary to use

mechanical restraints against violent maximum security

prisoners.

In its order of May, 1982, the District Court made

permanent a preliminary injunction issued at the close of

the evidence on March 5. That permanent injunction

merely incorporates the terms of the preliminary

injunction and makes it permanent. It has not been

modified in any of the subsequent decisions of the District

Court, and was not modified by the Seventh Circuit.

Testimony indicated that it is sometimes necessary for

restraints to be used on unruly, dangerous, destructive,

psychiatric or violent offenders in hospitals or mental

health settings for the protection of the offender or patients.

Tr. pp. 17-151, 19-87, 20-34. Law enforcement and

correctional personnel have found it necessary to use soft

and hard restraints on offenders who are dangerous,

aggressive, violent, and a threat to themselves and others.

The Department of Correction must have the ability to

manage disruptive and violent offenders and the flexibility

to respond to innumerable fact situations that cannot be

contemplated by any court order seeking to impose

arbitrary, unreasonable standards, time tables, and

definitions. This is why courts are precluded from delving

into the daily decisions of correctional institutions. Bell v.

Wolfish, 411 U.S. at 545-46.

The Petitioners recognize that the authority to use

mechanical restraints should be restricted to the highest

level of the administration of the facility, and that proper

documentation is necessary and reasonable. However, the

artificial, unworkable requirements of the District Court

constitute an unwarranted intrusion into the minutiae of

the daily operation of a maximum security facility having

no precedent in the law, and none is cited by the District

Court. Setting arbitrary requirements on the use of

mechanical restraints in a maximum security institution,

24

on the tacit assumption that every person to whom

restraints are applied must be psychiatrically disturbed, is

overly and artificially restrictive, will cause either the

failure to restrain or premature release of violent

offenders, and has no basis in law or fact. This is an issue

that has never been but should be addressed by this Court.

The Department of Correction has a valid policy

providing appropriate safeguards for the use of

mechanical restraints. This policy was totally ignored by

the District Court and by the Seventh Circuit. These

procedures would fully insure that the policy is properly

implemented with reasonable safeguards. The District

Court’s procedure causes an unnecessary reliance on forced

medication to control violent behavior, will increase the

cost of staffing, will cause staff and offenders to be injured,

and precludes the state from taking measures that are

necessary in an emergency.

In affirming the order of the District Court, the Seventh

Circuit allowed the mandate of specific remedies rather

than determining that a violation exists and directing the

prison administrators to remedy the violation. The District

Court is intruding into the daily operations of a state

maximum secu-ity correctional institution without regard

to the nature of the institution or to the security and contro!

necessary to the maintenance of such an institution,

contrary to the directions of this Court. In fact, the Seventh

Circuit recognized as much in “encouraging” the District

Court to allow for more flexibility in the future, but only

after a showing by the Petitioners that such flexibility is

warranted. The burden was shifted onto the Petitioners to

show absence of need for intrusive measures rather than

remaining on the Respondents to show the necessity.

Despite the presentation of specific challenges to

virtually every specific provision of the order, and despite

the fact that these same challenges have already been

presented to and rejected by the District Court, the Seventh

Circuit did not address the merits of the order, relegating

25

Petitioners to future modification of the order by the

District Court. The District Court had already refused on

several occasions to modify its order. This Court should

take cognizance of the specificity with which the order is

drawn and of its restrictive impact on correctional

management, especially in light of the fact that the issue of

the use of mechanical restraints on prisoners in a

maximum security institution and outside of a mental

health context is a case of first impression in this Court.

The District Court exceeded its authority by directly

ordering a procedural remedy that restricts the effective

management of dangerous and violent offenders. A person

who is injuring himself or others, or who is destroying

plumbing fixtures in his cell and thereby flooding other

offenders” cells, may not be restrained unless detailed,

costly, and elaborate procedures are followed. Correctional

managers must have considerable leeway in dealing with

emergency situtations, especially in a maximum security

area of a maximum security institution. Whitley v. Albers,

U.S., 106 S.Ct. 1078 (1986).

The order on mechanical restraints severely inhibits the

ability of Reformatory staff to manage violent offenders.

The discretion that is absolutely essential to deal with the

multitude of factual situations presented — which

discretion is present in the Department’s policy — is

lacking, seriously jeopardizing the safety and security of

the institution.

26

ITT.

THE DECISION OF THE SEVENTH CIRCUIT IS

CONTRARY TO LAW IN FAILING TO ADDRESS

THE ISSUES OF: (1) THE PROPRIETY OF THE

USE OF DOUBLE-DECKED BUNK BEDS IN

DORMITORY AREAS OF THE INDIANA

REFORMATORY; (2) THE ORDER TO REDUCE

THE POPULATION AT THE REFORMATORY;

AND, (3) THE ORDER AS TO THE HEALTH

CARE FACILITY OF THE REFORMATORY,

WHICH ISSUES WERE DIRECTLY PRESENTED

IN THE BRIEFS AND ARGUMENTS

This issue is apparent in the records. Each of these issues

was directly presented to the Court by way of the briefs.

The opinion of the Seventh Circuit does not address these

issues. Therefore, certiorari should be granted to address

these central and important issues on which the Seventh

Circuit has abdicated its responsibility to rule; and, to

secure compliance with the mandates of this Court.

CONCLUSION

For the foregoing reasons, it is respectfully urged that

certiorari be granted to review the decision of the United

States Court of Appeals for the Seventh Circuit, and to

reverse the decision of that Court.

Respectfully submitted,

LINLEY E. PEARSON

Attorney General of Indiana

DAVID A. ARTHUR

Deputy Attorney General

Attorneys for Petitioners

Appendix

in the

United States Court of Appeals

For the Seventh Circuit

No. 83-2280

RICHARD A. FRENCH, et al.,

Plaintiffs-Appellees,

v.

NORMAN G. OWENS, et al.,

Defendants-A ppellants.

No. 85-1065

RICHARD A. FRENCH, et al.,

Plaintiffs-Appellees,

v.

NORMAN G. OWENS, et al.,

Defendants-Appellants,

UNITED STATES OF AMERICA, ;

Amicus Curiae.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 75 C 677—S. Hugh Dillin, Judge.

ARGUED ApRIL 5, 1985—DECIDED NOVEMBER 26, 1985

Before CUDAHY and ESCHBACH, Circuit Judges, and

Morton, Senior District Judge.*

* The Honorable L. Clure Morton, Senior District Judge of the

Middle District of Tennessee, sitting by designation.

A-1

A-2

‘Cupany, Circuit Judge. This is an appeal from an or-

der of the United States District Court for the Southern

District of Indiana requiring extensive reforms at the Indi-

ana Reformatory at Pendleton, Indiana. Defendants, offi-

cials of the Reformatory, allege on appeal that the court

erred in finding constitutional violations and exceeded its

authority in issuing a detailed injunction. We have reviewed

the order and affirm most of its provisions. We vacate

with respect to several provisions and remand to the dis-

trict court for further consideration.

:

Four prisoners at the Indiana Reformatory at Pendleton

(“the Reformatory” or “Pendleton’’) filed a class action

suit under 42 U.S.C. § 1983 on behalf of all persons who

are or will be in the facility. The suit complained of over-

crowding and of the prison’s use of mechanical restraints.

It protested poor medical care and food, inadequate recre-

ation, discrimination against those in protective custody,

insufficient safety personnel and noncompliance with fire

and occupational safety standards. After a 16-day trial,

the district judge, exercising his pendent jurisdiction,

found that many of these conditions violated various pro-

- visions of Indiana law. He also found that the practice

of double-celling, in concert with other overcrowded and

unsanitary conditions, violated the eighth and fourteenth

amendments of the United States Constitution. French

v. Owens, 538 F. Supp. 910 (S.D. Ind. 1982). Therefore,

he issued a permanent injunction ordering detailed changes.

Defendants appealed. While the appeal was before this

court, the Supreme Court decided Pennhurst State School

and Hospital v. Halderman, 465 U.S. 89 (1984), which

held that under the eleventh amendment, federal courts

lacked jurisdiction over claims for injunctive relief against

state officials based upon state law. In light of Pennhurst,

we remanded this case to the district court so it could

consider whether the conditions that it had found violated

state law also violated federal law.

A-3

On remand, the court found that most of the conditions

which violated state law, offended the eighth amendment

as well. It therefore issued an amended order. That order

also accounted for improvements that had been made at

the facility over the two-year period since conditions had

originally been considered.

Defendants again appeal. The United States has filed

an amicus brief stating its position in detail on the various

alleged violations and on the remedies prescribed.

II.

“In analyzing a challenge to prison conditions based on

the Eighth Amendment, a court should examine each chal-

lenged condition of confinement .. . to determine whether

that condition is compatible with the ‘evolving standards

of decency that ak the progress of a maturing soci-

ety.’”’ Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir.

1981) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)

(plurality opinion)). We therefore examine the specifics of

Judge Diilin’s order to determine if there have been viola-

tions of the eighth amendment and, if so, whether the

remedy is appropriate.!

A. Double-Celling

Built in 1928, by 1982 the Pendleton reformatory housed

almost 2,000 prisoners, over twice its intended capacity.

To accommodate the rise in population, prison officials

placed two prisoners in cells that were intended for one.

More than one-third of all cells were converted to double

cells. After reviewing the record and personally visiting

the prison site, Judge Dillin concluded that “rampant”

' Judge Dillin offered an excellent and thorough description of

conditions at Pendleton. See French v. Owens, 538 F. Supp. 910

(S.D. Ind. 1982). We, therefore, need not rehash the facts of the

case at length but instead ‘touch on them only as they are impor-

tent in explaining our result.

A-4

double celling, in conjunction with general conditions of

overcrowding, violated the eighth and fourteenth amend-

ments.?

By 1982, the gross available space per man in the double

cells was 24 square feet, the net amount approximately

half that. In the Administrative Segregation Unit—where

prisoners are kept who need to be separated from the

general inmate population—the ceilings are lower and in-

mates on the top bunks of double cells are unable to sit

up. There is no space for a chair on the floor. As a result,

some have developed back problems.

The forty per cent of prisoners in double cells spend

between 20 and 23 hours per day in these cells. The five

per cent of inmates in protective custody leave their cells

only for showers, visits and twice-weekly recreation.

Deplorable conditions exist beyond the double-celling

problem. All cells and dormitories are inadequately ven-

tilated. There is no means of distributing heat to the cells

and, in summertime, no system for circulating air to the

cells. Rooms are dirty and odorous. Toilets and lavatories

are “virtually uncleanable.” Lighting is poor. Cells have

no hot water.

Especially in light of the poor supervision, safety,

medical care and food preparation at the facility, Judge

Dillin found the conditions intolerable. He ordered that

the population be reduced to 1,615 and enjoined double

celling.

As the district court acknowledged, the mere practice

of double celling is not per se unconstitutional. In Rhodes

v. Chapman, 452 U.S. 337 (1981), the Supreme Court up-

held its use in some instances. The institution at issue

in Rhodes, however, was described as a “top-flight, first

class facility.” Id. at 341. It had been built in the 1970s.

2 The eighth amendment is applicable to the state through the

fourteenth amendment. Robinson v. California, 370 U.S. 660

(1962).

A-5

Prisoners there shared double cells of 63 square feet, one-

third larger than the cells at Pendleton. Each cell con-

tained a night stand and shelf and radio unit. All cells

had hot water. Similarly, this court upheld the use of dou-

ble celling at the State Prison at Pontiac, Illinois in Smith

v. Fairman, 690 F.2d 122 (1982), cert. denied, 461 U.S.

946 (1983). Pontiac’s double cells ranged in size from 55

to 65 square feet, giving | aise neg there 20 to 35 per cent

more space than their Pendleton counterparts. Most of

the cells at the Pontiac facility were “neat and clean” and

much of the crowding in prisoners’ cells was due to the

inmates’ books, records, stereos and electronic equipment.

Food at Pontiac was found to be nutritious and whole-

some. Violence had dramatically declined and medical care

was found adequate.

While these institutions passed constitutional muster,

the Rhodes court noted that prison conditions could be

cruel and unusual when they “deprive inmates of the

minimal civilized measure of life’s necessities,"’ 452 U.S.

at 347, or when they result in punishments that “ ‘involve

the unnecessary and wanton infliction of pain’ or are

grossly disproportionate to the severity of the crime.” Jd.

at 346 (citations omitted).

In this circuit, we determine whether there have been

“serious deprivations of basic human needs,” id. at 347.

by examining the “totality of conditions of confinement.”

Madyun v. pson, 657 F.2d 868, 874 (7th Cir. 1981).

In this light, the picture painted of Pendleton is very dif-

ferent from that seen in Smith or Rhodes, from the lack

of = and furnishings, to the unwholesome food, medical

neglect and continuous threats to prisoners’ safety. We

agree that such conditions constitute cruel and unusual

punishment. See Toussaint v. Yockey, 722 F.2d 1490, 1492

(9th Cir. 1984) (injunction upheld against double celling

where it “engender{s) violence, tension and psychological

problems”); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.

1983), cert. denied, __. U.S. ___; 104 S.Ct. 3587 (1984)

(overcrowding can violate eighth amendment).

A-6

On appeal, defendants contend that even if the condi-

tions were cruel and unusual, the district court’s remedy

was too broad. They assert that if the population is re-

duced, there should be no need to ban double celling.

At this time we disagree. The district court has broad

powers to forge an adequate remedy to permanently cor-

rect any constitutional violation. As the Supreme Court

has stated, “once a constitutional violation is demonstrated,

the scope of the district court’s equitable powers to rem-

edy past wrongs is broad, for breadth is inherent in equi-

table remedies.” Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 15, (1971). Here, where there

was narrowly cramped double celling as a feature of se-

verely overcrowded, unsafe and unsanitary conditions, we

cannot conclude that the district court exceeded its broad

remedial power. Under present conditions, a complete ban

on double celling is fully justified. However, since dou-

ble celling is not per se unconstitutional, if the Indiana

prison system eliminates the severe overcrowding at Pen-

dleton and the pernicious evils that accompany it, the

state can at a later date seek some modification of the

ban on double celling. If adequate reasons were shown

and overall conditions warrant, such a request would, of

course, be entitled to consideration.

B. Mechanical Restraints

Plaintiffs also complained that the use of mechanical

restraints at Pendleton was unconstitutional. Mechanical

restraint was employed against those who threatened sui-

cide or were physically disruptive. Between January 1980

and January 1982, mechanical restraint was used 84 times.

Prisoners were often chained for between 12 and 24 hours,

with instances recorded of up to 2% days. Those restrained

were usually chained spread-eagled to their bed, their

lirnbs secured by hard shackles. Often they were stripped.

Sometimes the mattress was removed from the bed frame.

These prisoners were frequently denied the right to use

the toilet and had to lie in their own filth. At least one

A-7

prisoner suffered permanent nerve damage to his wrists

from lying in shackles.

Appalled by this catalogue of inhumanities, the district

court issued broad and detailed restrictions on the fur-

ther use of hard shackles and ordered that mechanical

restraint not be used as a form of punishment. It confined

the use of restraint to the infirmary and allowed its use

only when the superintendent of the prison or his substi-

tute approved. The court required psychiatric approval

for the use of restraint. The institution can restrain pris-

oners only for two hours before receiving the approval

of a eo During the period of restraint, trained

medical personnel must constantly supervise the prison-

er. Every 12 hours a psychiatrist must review the need

for further restraint. Those in need of restraint beyond

24 hours must be sent to a psychiatric hospital. Inmates

must be released at least every four hours to use the

toilet and must be kept in proper clothing.

Defendants object that the district court based its con-

clusion on insufficient findings of fact and determinations

of law and that the court’s lengthy order was without

authority because it restrained “the effective management

of dangerous and violent offenders.” (Defendant’s brief at

33). We disagree.

The court was clearly within its right to enjoin such

“outmoded and inhuman” practices. Landman v. Royster,

333 F. Supp. 621, 648 (E.D. Va. 1971). The image of indi-

viduals shackled naked for days to a metal bed frame is

a sad reminder of the “soul chilling inhumanity of condi-

tions in America’s prisons.”” Rhodes v. Chapman, 452 U.S.

337, 354 (1981). While some form of temporary restraint may

be necessary against those who pose a threat to them-

selves and others, Pendleton’s methods are “too close to

the rack and the screw to permit of constitutional differen-

tiation.” Rochin v. California, 342 U.S. 165, 172 (1952).

Other courts have found such practices to be cruel and

unusual punishment. See Stewart v. Rhodes, 473 F. Supp.

1185, 1790-93 (S.D. Ohio 1979), appeal dismissed 661 F.

A-8

2d 934 (6th Cir. 1981); Owens-el v. Robinson, 442 F. Supp.

1368 (modified 457 F. Supp. 984 (W.D. Pa. 1978)).

In dealing with detailed instances of brutality, we can-

not say the district court exceeded its broad remedial

authority in issuing a detailed injunction, especially where

Indiana’s efforts to explore alternatives seem lacking. See

Landman v. Royster, supra, 333 F. Supp. at 648. Cf.

Wells v. Franzen, slip op. No. 84-1669 (7th Cir. Nov. 26,

1985) (violation of due process to restrain prisoner without

the approval of a health professional and the taking of

adequate health precautions). With respect to some of its

specifics, however, we encourage the court at a proper

time and in response to specific requests to allow for more

flexibility. For example, if a psychiatrist is not immediate-

ly available, such as during the middle of the night, per-

haps another qualified physician might approve the initial

restraint. On the whole, however, Judge Dillin’s order

prescribes the necessary initial steps for curbing an ob-

noxious practice. As experience is gained under a properly

regulated regime, the district court may permit modifica-

tions which seem fully justified by the circumstances.

For example, the United States has urged that bed re-

straints be allowed elsewhere than in the infirmary. We

think that the urgent need for proper control fully justifies

the district court in restricting them to the infirmary at

this time. But this restriction might prove unnecessary

under some future conditions.

C. Medical Care

As the population at Pendleton skyrocketed, the quality

of medical care declined. The district court found the in-

stitution severely understaffed. Between 1978 and 1982,

the me seen increased by 62 per cent but the number

of physicians affiliated with the facility dropped, as did

the number of mental health personnel. While there are

over 190 requests for medical care per day, there is only

one full-time physician, who speaks little English. Inmates

in need of medical help get between one and ten minutes

A-9

each for evaluation and treatment. As would be expected,

there are numerous instances of neglect, misdiagnosis and

maltreatment. One patient had tuberculosis that went un-

diagnosed, another had a broken back that went un-

treated, a third had an abscessed rectum that went unat-

tended for six months.

“When a state imposes imprisonment as a punishment

for a crime, it accepts the obligation to provide persons

in its custody with a medical care system that meets

minimal standards of adequacy.” Wellman v. Faulkner,

715 F. 2d 269, 271 (7th Cir. 1983), cert. denied, ___ U.S.

—___, 104 S.Ct. 3587 (1984). The Supreme Court had ruled

that the eighth amendment is violated by “deliberate in-

difference to serious medical needs of prisoners.” Estelle

v. Gamble, 429 U.S. 97, 104 (1976). Such indifference may

be evinced by “repeated examples of negligent acts which

disclose a pattern of conduct by the prison medical staff’

or by showing “‘systematic or gross deficiencies in staffing,

facilities, equipment or procedures.” Ramos v. Lamm, 639

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

denied, 450 U.S. 1041 (1981); Wellman, supra, 715 F.2d.

at 272. Under either criterion, Pendleton’s medical serv-

ices fall short of accepted standards.

After finding an eighth amendment violation, Judge

Dillin ordered a comprehensive overhaul of Pendleton’s

medical staff. He ordered the appointment of an additional

full-time physician, required that there be 5 physician’s

assistants, a hospital administrator, and a full-time phar-

macist. To improve mental health services, Judge Dillin

mandated that there be one psychiatrist, two psychiatric

social workers, a clinical psychologist and two behavioral

clinicians. He also required the appointment of 9 medical

technicians and two typists and specified that all medical

personnel must be able to speak English.

The United States as amicus objects that detailed medi-

cal reforms and other modifications ordered at the facility

may not be necessary if population is reduced and argues

that the state should have been allowed to submit a plan

A-10

for reform. While we hesitate to tell the state of Indiana

in painstaking detail how to staff the health departments

of its prisons, Judge Dillin was within his power in draft-

ing a detailed remedy to curb egregious neglect and mis-

management. Here, too, however, every element of the

injunction need not be writ in stone. As the population

declines and food, ventilation, sanitation and safety im-

prove, the medical needs of the prisoners may change.

To account for such changes, prison officials should be en-

couraged to report periodically to the district court to

determine if modifications of the order are necessary.

These reports should provide, inter alia, suitable indicia

of the demand for services, the rate of utilization of serv-

ices and the quality of services. Based on such reports,

the district court may lower the manning requirements

or even abrogate those requirements entirely if those

steps would be consistent with a continuing guarantee of

constitutional rights.

D. Kitchen Facilities

As the Tenth Circuit noted in Ramos v. Lamm, supra,

639 F.2d at 570-71, “the state must provide an inmate

with a ‘healthy, habitable environment.’ This includes pro-

viding nutritionally adequate food that is prepared and

served under conditions which do not present an im-

mediate danger to the health and well being of the in-

mates who consume it.” The district court found the state

in violation of these standards. The kitchen, commissary

and food storage areas were unsanitary and infested with

mice and roaches. The floor was found uncleanable due

to holes, cracks, crevices, missing tile and gross porosity.

Some of the ceiling was missing. Pots and pans were cov-

ered with uncleanable grime. Little attention was paid to

special diets.

While conditions at the time of filing suit were grossly

inadequate, the district court noted that the state allo-

cated $2 million to rehabilitate the kitchen facility. The

court therefore issued a general directive requiring that

A-11

the kitchen be maintained to provide inmates with safe,

sanitary and nutritious food. We approve fully of the dis-

trict court’s action.

E. Exercise and Recreation

The district court ordered that prisoners be permitted

to engage in at least 90 minutes per day of “meaningfu:

recreation.” In so ruling, we believe the court overstepped

its bounds. The general population gets 90 minutes of out-

door exercise during good weather. The Pendleton facility

has 2 baseball diamonds, handball, volleyball and basket-

ball courts, a football field, a jogging area and a horseshoe

pit. In inclement weather, the prisoners exercise indoors

in the fieldhouse, which is equipped with sporting goods

and a small gym and has a television set. Judge Dillin

objected to the time spent in the indoor gym beeause it

was cramped and noisy. He also objected to the treat-

ment of those in Administrative Segregation. These indi-

viduals get 2% hours of exercise twice a week and spend

approximately one hour each week in commissary. The

judge found that these prisoners receive insufficient daily

exercise.

Lack of exercise may certainly rise to a constitutional

violation. Where movement is denied and muscles are

allowed to atrophy, the health of the individual is threat-

ened and the siate’s constitutional obligation is compro-

mised. In Preston v. Thompson, 589 F.2d 300 (7th Cir.

1978), for example, this court found a violation where pris-

oners were never allowed out of their cells to exercise.

Similarly, in Spain v. Procunier, 600 F.2d 189, 199 (9th

Cir. 1979), the court found it an eighth amendment viola-

tion to completely deny some prisoners exercise and to

limit the remaining population to less than five hours in-

door exercise per week.

However, we cannot say that the prisoners here are

denied “the minimal civilized measure of life’s necessities”

merely because during some periods they cannot hear the

television. Nor can we call it a “wanton and unnecessary

A-12

_ infliction of pain’ to have to exercise in cramped quarters.

Even those within the Administrative Segregation Unit

are allowed exercise periods within the constitutional

minimum. See Bono v. Saxbe, 620 F.2d 609, 613 (7th Cir.

1980). 3

F. Protective Custody

Plaintiffs complained that those prisoners who were con-

fined in protective custody did not have equal access to

the same vocational, academic and rehabilitation programs

as those in the general prison population. In its second

opinion, the district court agreed with defendants that the

failure to provide such programs did not constitute cruel

and unusual punishment, see French v. Owens, Mem. No.

IP-75-677-C (S.D. Ind. Dec. 14, 1984); see also Rhodes v.

Chapman, 452 U.S. 337, 348 (1982) (deprivations of jobs

and educational programs “simply are not punishment”),

Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981);

French v. Heyne, 547 F.2d 994, 1002 (7th Cir. 1976), but

nonetheless ordered that the same programs must be pro-

vided to protective custody inmates as to others. It stated

that “providing access to rehabilitative programs to

general population inmates while denying access to such

programs to inmates segregated for nondisciplinary rea-

sons may constitute a violation of the Equal Protection

Clause of the Fourteenth Amendment.” French v. Owens,

Mem. op. at 14. The court concluded that treating protec-

tive custody inmates differently did not serve any rational

interest when the state created conditions necessitating

the widespread use of protective custody. .

We cannot accept the district court’s rationale. This cir-

cuit has previously held that security reasons justify

limiting the access of prisoners in protective custody to

rehabilitative programs. See Bono v. Saxbe, supra, 620

F.2d at 615; Cf. Lock v. Jenkins, 641 F.2d 488, 494 (7th

Cir. 1981) (‘Prisoners selecting placement in the [protec-

tive custody] unit, generally to avoid perceived dangers

to themselves, also logically must be subject to signifi-

A-13

cant restrictions.”). Neither Bono nor Lock suggests that

limitations on protective custody inmates do not apply

when the state creates conditions that increase reliance

on protective custody. In urging such an exception to this

court’s prior rulings, Judge Dillin has, we believe, under-

mined the state’s ability to operate an effective protec-

tive custody program. Some argument can always be

made that prison conditions have contributed to the vio-

lent tendencies that require one prisoner to be locked up

to protect him from others and another to be locked up

to protect others from him. As the court concluded in

Allgood v. Morris, 724 F.2d 1098, 1100-01 (4th Cir. 1984):

The rationality of a distinction between privileges for

prisoners in the general population and those in pro-

tective custody goes to the fundamental purpose of

such segregation. Protective segregation is offered to

inmates for their safety, the safety of others in con-

finement, and to insure institutional security and

order. To allow prisoners in protective custody to en-

joy all of the same privileges to the same degree as

those in the genera] population would eviscerate the

nature of protective segregation. Because the differ-

ences in treatment among prisoners in protective

segregation and the general population has a substan-

tial, rational basis in the legitimate state interest of

prison security, we hold that Allgood’s rights to equal

protection have not been abridged.

Accordingly, we disapprove the court’s order regarding

protective custody. Of course, this should not discourage

the state from providing such rehabilitative programs as

are feasible within the limitations of the protective

custody program.

G. Correction Officers

While some instances of violence unfortunately may be

expected in America’s prisons, the record in this case de-

tails countless examples of abhorrent beatings and wicked

A-14

acts. As the district court found, “security of inmates from

physical attacks by other inmates is a problem at the Re-

formatory. Severe forms of violence, including stabbings,

bludgeonings, and homosexual rapes, occur with distressing

frequency. A number of these instances have resulted in

fatalities. Lesser forms of violence, such as harassment,

threats, intimidation, striking and beating may be said to

be routine.” One prisoner was doused with lighter fluid

by an inmate attempting to set him aflame. Another was

biudgeoned with a 10 pound can opener. A 15 year old

youth was raped at knifepoint by a group of inmates.

The constitution cannot countenance such widespread

abuses. “The right to personal security constitutes an

‘historic liberty. interest’ protected by the due process

clause. Ingraham v. Wright, 430 U.S. 651, 673 (1977). And

that right is not extinguished by lawful confinement, even

for penal purposes.” Youngberg v. Romeo, 457 U.S. 307,

315 (1982). As this circuit has noted, the eighth amend-

ment is violated when attacks occur so frequently as to

be “nervasive,” Walsh v. Brewer, 733 F.2d 473, 475 (7th

Cir. 1984). The district court so found and its order re-

quiring the state to submit a plan to employ and train

sufficient security personnel to ensure the inmates safe-

ty is without question reasonable and legitimate.

H. Fire and Safety Violations

Plaintiffs, finally, complain that the Pendleton Reforma-

tory does not meet the constitution’s required standards

for fire safety or for safety in work areas. The plaintiffs

alleged that electrical wiring was not properly maintained,

that there were inadequate fire exits, and that the facility

had no established procedures to respond to fires. (Plain-

tiffs’ Supplemental Brief at 33-37). They noted that paper

articles were stored in boiler rooms and that solvents

were stored near flames. The district court found numer-

ous violations of the Indiana State Fire Regulations. It

found these violations constitutionally unacceptable and

ordered that ‘‘to secure compliance with the personal safety

So be

A-15

requirements of the eighth and fourteenth amendments,

the defendants shall bring all buildings into compliance

with the standards of the Indiana State Fire Marshal.”

French v. Qwens, Amended Order No. IP 75-677-C, at 5

(S.D. Ind. Dee. 14, 1984).

Plaintiffs also charged that the work areas had improper

ventilation, that prisoners were exposed to lethal fumes

and fluids, that power tocls lacked safety guards and that

there was inadequate eye protection. The district court,

using Federal OSHA standards as a guide, agreed that

these conditions were constitutionally defective. It there-

fore ordered full compliance with OSHA regulations.

There is no question that fire and occupational safety

are legitimate concerns under the eighth amendment. San-

tana v. Coilazo, 714 F.2d 1172, 1183 (1st Cir. 1983), cert.

denied, ___ U.S. ___, 107 S.Ct. 2352 (1984); Leeds v.

Watson, 630 F.2d 674, 675 (9th Cir. 1980). However, “not

every deviation from ideally safe conditions constitutes a

violation of the constitution.” Ruiz v. Estelle, '679 F.2d

1115, 1152-53. See Santana, supra, 714 F.2d at 1183. The

eighth amendment does not constitutionalize the Indiana

Fire Code. Nor does it require complete compliance with

the numerous OSHA regulations. “The district judge may

consider these standards, but must order the correction

of specific violations and may require only that these cor-

rections bring the conditions above constitutional minima.”

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982). While fire

and occupational safety no doubt need improvement at

Pendleton, the district court erred in requiring compliance

with specific administrative requirements to remedy those

defects. On remand, the district court should reconsider

these matters and require specific corrections of condi-

tions to meet constitutional standards.

Il.

The judgment of the district court insofar as it pertains

to overcrowding and double celling, mechanical restraints,

medical care, kitchen services and correction officers is

A-16

therefore affirmed. The judgment to the extent it pertains

to exercise and recreation, protective custody and fire and

occupational safety is vacated and remanded to the district

court for further proceedings not inconsistent with this

opinion.

AFFIRMED IN PART; VACATED AND

REMANDED IN PART.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 60054-—-Midwest Law Printing Co., Inc., Chicago—11-26-85—450

é

!

:

.

5

'

&

;

'

i

A-17

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 26, 1985.

Before

HON. RICHARD D. CUDAHY, Circuit Judge

HON. JESSE E. ESCHBACH, Circuit Judge

Hon L. CLURE MORTON, Senior District Judge*

No. 83-2280 ) Appeals from the

RICHARD A. FRENCH, et al., ) United States

Plaintiffs-Appellees, ) District Court for

VS. ) the Southern

NORMAN G. OWENS, et al., ) District of Indiana

Defendants-Appellants. ) Indianapolis Division

RRR ET earth ck Seth oe

No. 85-1065 ) No. 75 C 677

RICHARD A. FRENCH, et al., )

Plaintiffs- Appellees, ) Judge S. Hugh Dillin

VS.

NORMAN G. OWENS, et al.,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Amicus Curiae.

Nee ee eee ee ee”

This cause was heard on the record from the United

States District Court for the Southern District of Indiana,

Indianapolis Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the judgment of the said

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

is hereby, AFFIRMED IN PART, VACATED AND

REMANDED IN PART, in accordance with the opinion of

this Court filed this date.

* The Honorable L. Clure Morton, Senior District Judge of the Middle

District of Tennessee, sitting by designation.

A-18

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 12, 1986.

Before

HON. WALTER J. CUMMINGS, Chief Judge

HON. WILLIAM J. BAUER, Circuit Judge

HON. HARLINGTON Woop, JR., Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

HON. RICHARD A. POSNER, Circuit Judge

Hon. JOHN L. CorFEY, Circuit Judge

HON. JOEL M. FLAUM, Circuit Judge

HON. FRANK H. EASTERBROOK, Circuit Judge

HON. KENNETH F. RIPPLE, Circuit Judge

RICHARD A. FRENCH, et al., ) Appeal from the

Plaintiffs-Appellees, ) United States

. ) District Court for

Nos. 83-2280 vs. ) the Southern

85-1065 ) District of Indiana,

) Indianapolis

NORMAN G. OWENS, et al., ) Division.

Defendants-Appellants. )

) No. 75 C 677

)S. Hugh Dillin,

) Judge.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed in the above-entitled

cause by counsel for plaintiffs-appellees, all members of the

original panel* voted to deny same. A vote of the active

members of the court was requested, and a majority** of

* The Honorable L. Clure Morton, Senior District Judge of the Middle

District of Tennessee, sitting by designation on the original panel did not

participate in the suggestion for rehearing en banc.

** The Honorable Richard A. Posner voted to grant the rehearing en

bane.

A-19

the judges in regular active service voted to deny a

rehearing en banc. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing and suggestion for rehearing en banc be, and the same is

hereby, DENIED.

en

A-20

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 16, 1985.

Before

By the Court:

RICHARD A. FRENCH, et al., ) Appeals from the

Plaintiffs-Appellees, ) United States

) District Court for

No. 83-2280 vs. ) the Southern

) District of Indiana,

NORMAN G. OWENS, et al., ) Indianapolis

Defendants-Appellants. ) Division.

RICHARD A. FRENCH, et al, ) No. 75-C-677,

Plaintiffs- Appellees, ) Hon. S. Hugh Dillin,

) Judge.

No. 85-1065 vs. )

)

NORMAN G. OWENS, et al., )

Defendants-Appellants, )

)

UNITED STATES OF AMERICA, )

Amicus Curiae. )

ORDER

The Court, on its own motion, orders that these appeals

are CONSOLIDATED.

IT IS FURTHER ORDERED that supplemental

briefing shall proceed as follows:

1. Defendants-appellants shall file their supplemental

brief and required short appendix on or before February

15, 1985.

A-21

2. Plaintiffs-appellees shall file their supplemental

brief on or before March 8, 1985.

3. Defendants-appellants shall file their reply brief, if

any, on or before March 22, 1985.

This matter shall be set for oral argument during the

week of April 1, 1985 or as soon thereafter as practicable.

Accordingly, requests for extensions of time will be re-

garded with extreme disfavor.

A-22

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RICHARD A. FRENCH

Morris E. DOZIER,

MARTIN W. BRADBERRY,

HENRY C. JENNINGS,

On behalf of themselves and

all others similarly situated,

Plaintiffs,

-Vs- NO. IP 75-677-C

NorMAN OWENS, Individually and

in his official capacity

as Superintendent of the

Indiana Reformatory;

CLOID SCHULER, In his capacity

as Executive Director of

the Adult Authority, Indiana

Department of Correction;

GORDON FAULKNER, In his

capacity as Commissioner

of the Indiana Department

of Correction,

ee ee ee ee es he _____ _ Oo iit

Defendants.

MEMORANDUM

This case is before the Court on remand from the United

States Court of Appeals for the Seventh Circuit, by agree-

ment of the parties and pursuant to this Court's

Memorandum Entry of August 30, 1984. This Court pre-

viously entered its Order and Memorandum of Decision

awarding permanent injunctive relief in favor of the plain-

A-23

tiffs on May 7, 1982, finding that certain conditions of

confinement at the Indiana Reformatory violated state and

federal law. French v. Owens, 538 F.Supp. 910 (S.D.Ind.

1982). During the pendency of this case on appeal to the

Seventh Circuit Court of Appeals, the United States

Supreme Court ruled in Pennhurst State School and

Hospital v. Halderman, __— U.S. 104 S.Ct. 900, 79

L.Ed.2d 67 (1984), that under the Eleventh Amendment to

the United States Constitution, federal courts lacked

jurisdiction over claims for injunctive relief against state

officials based upon state law.

Because the May 7, 1982 order was based, in part, upon

findings of state law violations and compelled state officials

to comply with state law, that order must be reconsidered

in light of Pennhurst, supra.

The original decision in this case was rendered under the

familiar principle of first considering pendent state law

claims in order to avoid unnecessarily determining federal

constitutional law questions. Numerous violations of state

law were found and in areas where no specific state statute

applied, certain violations of the Eighth and Fourteenth

Amendments to the United States Constitution were found.

The Court specifically found that the deplorable housing

and extensive overcrowding, including double-celling and

double-bunking, constituted cruel and unusual punish-

ment when considered in light of the other grievous condi-

tions imposed upon the inmates. The Court also found that

the totality of the conditions existing at the Reformatory

violated the Eighth and Fourteenth Amendments. These

holdings are not altered by this memorandum, see Wellman

v. Faulkner, 715 F.2d 269, 274 (7th Cir. 1983), cert. denied,

—_.._- U.S. —_, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984);

Palmigiano v. Garrahy, 443 F.Supp. 956, 979(D.R.1. 1977),

nor are the previous findings with respect to prison

discipline and access to courts altered herein.

The Court found that state statutes regulating prison

conditions were violated at the Reformatory as follows: Ind.

a i eels

A-24

Code § 11-10-11-2 respecting exercise and recreation; Ind.

Code §§ 11-10-3-2 and 11-10-4-2 respecting medical care for

both physical and mental health problems; Ind. Code §§ 11-

10-5-1, 11-10-6-2, and 11-10-6-3 respecting academic and

vocational education and employment; and Ind. Code §§ 11-

11-6-1 and 11-11-6-2 respecting a safe and healthful

environment. Upon finding these state law violations, the

Court did not determine whether the same conditions con-

stituted violations of federal law. In light on Pennhurst,

however, this Court lacked jurisdiction to consider the

pendent state law claims. Therefore, the Court must now

reconsider the findings in this case under federal law

standards.

The Eighth Amendment to the United States Constitu-

tion proscribes the imposition of cruel and unusual punish-

ment and is applicable to the states through the Fourteenth

Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct.

1417, 8 L.Ed.2d 758 (1962). The proscription against cruel

and unusual punishment must be viewed under “evolving

standards of decency that mark the progress of amaturing

society.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct.

2392, 69 L.Ed.2d 59, 68 (1981). Conditions of confinement

will abridge the Eighth Amendment if they “invoive the

unnecessary and wanton infliction of pain ... or are grossly

disproportionate to the severity of the crime” (citations

omitted). Id. Additionally, prison conditions resulting in

serious deprivations of basic human needs have been found

to constitute cruel and unusual punishment under the

Eighth Amendment. Hutton v. Finney, 437 U.S. 678, 98

S.Ct. 2565, 57 L.Ed.2d 522 (1978); Estelle v. Gamble, 429

U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

In considering challenged prison conditions under the

Eighth Amendment, the Court must consider the “totality

of the conditions of confinement” but nevertheless, must not

make vague conclusions of unconstitutionality. Smith v.

Fairman, 690 F.2d 122 (7th Cir. 1982). Conditions which

independently are unquestionably constitutional do not be-

ay |

A-25

come unconstitutional by their aggregation. Wellman v.

Faulkner, 715 F.2d 269, 275 (7th Cir. 1983). Conditions may

be restrictive and even harsh, but unless they constitute

cruel and unusual punishment, “they are part of the

penalty that criminal offenders pay for their offenses

against society.” On the other hand, conditions other than

those in Gamble and Hutto, alone or in combination (our

italics), may deprive inmates of the minimal civilized

measure of life’s necessities and be cruel and unusual.

Rhodes v. Chapman, 452 U.S. 337, at 347.

1. Exercise and Recreation

The importance of regular exercise and recreation to the

physical and psychological health of incarcerated

individuals is well recognized. Patterson v. Mintzes, 717

F.2d 284 (6th Cir. 1983); Ruiz v. Estelle, 679 F.2d 1115, 1152,

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

U.S. —_, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). See

Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978); Hendrix

v. Faulkner, 525 F.Supp. 435, 523 (N.D.Ind. 1981), aff'd in

part, rev'd in part sub nom, Wellman v. Faulkner, 715 F.2d

269 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct.

3587, 82 L.Ed.2d 885 (1984). A deprivation of exercise or

recreation, impairing the physical or mental heaith of

inmates, violates the Eighth Amendment. Ruiz v. Estelle,

679 F.2d at 1152. Factors to consider in analyzing the

adequacy of exercise and recreation for prisoners include

the size of the cell, the amount of time the inmate spends

locked in the cell each day, and the overall duration of

confinement. Jd. at 1151. The inmates at the Reformatory

were found to be double-celled and double-bunked in less

than half the space required under contemporary

minimum standards.

The inmates are confined for up to 23 hours a day and fre-

quently, when exercise and recreation are provided, the

inmates are crowded in the tiny gymnasium where no

meaningful exercise or recreation is possible for the vast

eee ee

A-26

majority of the inmates. Additionally, few inmates were

found to have education assignments and only 64% had job

assignments. The number of working inmates, neverthe-

less, exceeds the authorized number of positions available.

Lastly, the Indiana Reformatory is a maximum security

institution in which most inmates are serving long, and

frequently life, sentences. The conditions at the

Reformatory have resulted in increased tension and

violence and have caused a significant increase in the

number of inmates seeking protective custody. Inmates in

protective custody, as well as those in administrative

segregation pending investigations of prison rules and pre-

trial detainees, are afforded significantly less exercise and

recreation than inmates in the general population and are

denied access to educational, vocational and work assign-

ments. The increased severity of confinement for these

inmates serves no penological purpose and is imposed upon

them merely because the institution is overcrowded and

lacks suffcient staff to secure their safety. Therefore,

considering the size of the cells and dormitories, the time

spent confined in them, the duration of confinement at the

Reformatory and other noted conditions, the deprivation of

adequate exercise and recreation has a degenerative effect

on the mental and physical health of the inmates and

constitutes cruel and unusual punishment in violation of

the Eighth and Fourteenth Amendments.

~ De hed

2. Medical and Psychiatric Care

The defendants have an obligation to provide adequate

medical care for individuals incarcerated at the

Reformatory. Intentional denial of access to medical care

or interference with prescribed treatment by prison

officials violates the Eighth Amendment. Estelle v. Gamble,

429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The

Supreme Court has explained that “the denial of medical

eare is cruel and unusual because, in the worst case, it can

result in physical torture, and, even in less serious cases, it

A-27

can result in pain without any penological purpose.” Rhodes

v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d

59, 69 (1981).

The obligation to provide medical care to incarcerated

individuals extends to medical treatment for physical

illness, to dental care, and to psychiatric and psychological

care. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980),

cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239

(1981). See also Monmouth County Correctional Institution

Inmates v. Lanzaro, No. 82-1924 (D.N.J. Oct. 10, 1984):

Fieids v. Gander, 734 F.2d 1313 (8th Cir. 1984); Wellman v.

Faulkner, 715 F.2d 269 (7th Cir. 1983), cert. denied, ___

U.S. —__, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984).

In considering whether the denial of medical care

reaches constitutional significance, courts must determine

whether the system of providing medical care evidences a

deliberate indifference to the serious medical needs of the

inmates. Estelle v. Gamble, supra; Wellman v. Faulkner,

supra.

“Deliberate indifference” may be demonstrated by

repeated examples of improper or inadequate medical

treatment, interference with prescribed treatment, failure

to treat legitimate medical complaints, or by systemic

deficiencies in staff, facilities, equipment or procedures.

Weliman v. Faulkner, supra; Ramos v. Lamm, 639 F.2d 559

(10th Cir. 1980).

The delivery of medical and psychiatric services, the

physical facilities and the procedures for diagnosing and

treating the serious health needs of the inmates at the

Reformatory were previously found to be grossly sub-

standard. The Court noted that serious staff deficiencies

existed. The only staff physician also acts as medical

director and has a private medical practice. Although he is

“on call” 24 hours as day, the record shows examples of his

unavailability and refusal to come to the Reformatory

when called. Furthermore, he is a native Korean and is

A-28

unable to communicate effectively in English. The

remaining medical staff was found to be performing tasks

for which they were not qualified and they were over-

worked and inadequately supervised. An additional

physician position has been authorized for years but

unfilled due to the unrealistic salary offered.

The procedures for the delivery of medical care to the

inmates was found to be “so insufficient as to guarantee

inadequate services.” Memorandum of Decision of May 7,

1982 at 14. Medical technicians (a classification not

recognized under Indiana law) see between 150 and 190 pa-

tients in a few hours, the physician assistants may see 20 to

30 patients in a two hour period, and the physician, out of

the 190 patient requests per day, will see approximately 10

patients. Inmates on lockup are denied adequate medica!

services to an even greater degree. Instances of neglect of

serious illnesses for unreasonable lengths of time,

improper diagnosis and treatment by unqualified staff,

failure to follow prescribed treatment, failure to provide

special diets, and discontinuation of prescribed medication

are documented in the record. The lack of effective

procedures for the delivery of a minimum level of medical

care is obvious and intolerable.

The physical facilities and equipment are inadequate,

antiquated, obsolete and poorly staffed. The second floor

infirmary, available for inmates with minor ailments

requiring confinement to bed, has no mechanical ventila-

tion and no medical personnel stationed on the ward.

Inmates requiring any more acute care cannot be treated at

or near the Reformatory but rather must be transported to

Wishard Memorial Hospital in Indianapolis, 40 minutes

from the Reformatory. Wishard Hospital provides both in-

patient and out-patient services for inmates. Closer

hospitalization facilities in Anderson, Indiana are almost

never used.

As a result of the insufficient and unqualified medical

staff, the inadequate procedures for the delivery of medical

<<eOPR PEE EEECERERE Emre -

‘

i

}

'

k

:

|

:

A-29

services to the inmates, and the inadequate physical

facilities, instances of inadequate and improper medical

care, interference with prescribed medication and treat-

ment, and a denial of access to medical care for legitimate

medical complaints are commonplace. The record clearly

shows that the extensive deficiencies in the medical care

provided to the inmates constitute a deliberate indifference

to the serious medical needs of the inmates, imposing upon

them cruel and unusual punishment.

Similarly grievous deficiencies exist with respect to the

availability of psychiatric care. The staff is grossly in-

sufficient, especially in light of the high level of mental

illness that occurs statistically in maximum security

institutions such as the Reformatory. The mental health

care staff contains only one psychiatrist available for

diagnostic purposes for three hours per week. The other

full-time and part-time staff members, including two

psychologists and a behavioral! clinician, are unable to

prescribe medications and have an anti-drug bias. The

intolerable barbaric practice of depriving psychotic

inmates of needed medication to control their illnesses and,

instead restraining them in heds, spread-eagle fashion, in

the event of a seizure or episode of delusion has been

prohibited by this court through the preliminary restrain-

ing order made permanent by the Order of May 7, 1984.

The insufficient staff coupled with grossly inadequate

procedures for the delivery of psychiatric services result in

improper or inadequate treatment or in a complete

deprivation of treatment for the inmates’ serious mental

health problems. There is a long waiting list of inmates

seeking psychiatric help, no method of rapidly transport-

ing inmates to the only available acute psychiatric

hospitilization facilities at the Westville Psychiatric Unit

in Westville, Indiana, no follow-up care procedures upon

return to the Reformatory, and frequent discontinuation of

prescribed medications. Additionally, 70% of the inmates

at the Reformatory have histories of substance abuse, yet

A-30

only five receive professional counseling and treatment. As

in the case of medical care, an additional staff position has

been authorized but unfilled due to an uncompetitive

salary level.

The systemic deficiencies in the staffing and procedures

for the delivery of psychiatric care to the inmate population

demonstrate a deliberate indifference to the serious health

needs of the inmates and result in cruel and unusuai

punishment in violation of the Eighth and Fourteenth

Amendments.

38. Safe and Healthful Environment

Inmates are subjected to double-celling and double-

bunking with little if any area tosit erect or stand. The cells

and dormitories have exceedingly poor lighting,

inadequate ventilation, indequate temperature control, are

dirty and odorous and have virtually uncleanable toilets

and lavatories. The inmates are denied adequate medical

and psychiatric care and are unreasonably deprived of

exercise, recreation, education or job opportunities. These

aggravated, overcrowded housing conditions were found to

violate the Eighth Amendment. Additional aggravating

conditions, including hazardous work areas, inadequate

precautions against fire, inadequate and unhealthy food

services, other hazardous and unhealthy environmental

conditions, and lack of protection of inmates, were found to

violate state law. These latter conditions also violate federal

law.

A. Work Areas

The work areas at the Reformatory were found to be in

violation of minimum safety standards required under

Occupational Safety and Health Administration (OSHA)

regulations. The work areas particularly lacked adequate

ventilation, respirators and gloves and the noise levels in

some areas far exceeded the maximum allowable.

Violations of these minimum standards unreasonably

A-31

threaten the health and safety of the inmates and inflict

upon them unnecessary and wanton pain.

B. Fire Protection

Most, if not ail the buildings at the Reformatory pose an

imminent threat to the safety of the inmates in case of fire.

Improper storage of flammable substances, lack of exit

signs, smoke detectors or alarm systems, lack of alternate

methods of egress, and inadequate evacuation procedures

are documented in the record. Failure to provide

reasonable protection against the threat of fire constitutes

cruel and unusual punishment. See Santana v. Collazo, 714

F.2d 1172 (1st Cir. 1983), cert. denied, ___ U.S. ___., 104

S.Ct. 2352 (1984). The defendants have systematically

failed to provide adequate fire protection, demonstrating a

wanton indifference to the health and safety of the

Reformatory inmates.

C. Food Services

The kitchen, commissary and food storage areas at the

Reformatory are unsanitary and infested with mice and

roaches. The kitchen floor was found to be uncleanable due

to holes, cracks, crevices, missing tile and gross porosity.

Pots and pans were in such poor repair as to beuncleanable

and the food warming tables in the dining area were

inoperable. Procedures for providing special diets to

inmates requiring such were lacking. The deplorable

condition of the facilities and deficiencies in the delivery of

food services pose an imminent threat to the health and

safety of the inmates in violation of the Eighth and

Fourteenth Amendments. Ramos v. Lamm, 639 F.2d 559

(10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981).

D. Environmental Health Problems

In addition to the infestation of the kitchen and food

storage areas, the dormitories and one cellblock are

infested with birds, flies, and other insects in warm

A-32

months. Plumbing chases were found to be dirty and ideal

for harboring insects and rodents. Lack of hot water in the

cells, inadequate ventilation, and unsanitary toilets,

showers, and lavatories encourage the spread of

communicable diseases and pose additional serious public

health threats. Inadequate lighting, especially on the

administrative segregation unit, causes eyestrain, hinders

sanitation efforts and smacks of unjustified punitive action.

These conditions, exascerbated by overcrowding and in-

adequate opportunities for activity outside the cell or

dormitory, fail to meet contemporary standards of decency

and impose unnecessary and wanton pain upon the

inmates.

E. Inmate Protection

The defendants have an obligation to protect inmates

from unreasonable risks of violence or bodily harm from

other inmates. Walsh v. Brewer, 733 F.2d 473, 476 (7th Cir.

1984). “{D]eliberate indifference’ to violent inmate attacks

deprive inmates of their eighth amendment rights.” /d. at

476. At the Reformatory, severe forms of violence resulting

in a number of fatalities, were noted to occur with dis-

tressing frequency.

The security staff at the Reformatory is inadequate to

handle the number of confined inmates. The overcrowding

and other grievous conditions result in increased tension to

the “blowing level,” increased incidences of violence, sexual

assaults, and aggressive behavior. With an insufficient

security staff and inadequate communication system

among the prison guards, a lack of control over behavior

among inmates is inevitable. The lack of security in the

general population has required widespread use of protec-

tive custody, despite the additional restrictions and

intolerable conditions imposed there. Still, violence

persists.

The record clearly demonstrates that the inadequate per-

sonal security afforded the inmates constitutes cruel and

unusual punishment.

A-33

4. Academic and Vocational Education

The inadequacy of academic and vocational education

and work programs was previously found to violate state

law. The deprivation of rehabilitative programs, however,

generally does not constitute cruel and unusual punish-

ment. Bono v. Saxbe, 620 F.2d 609 (7th Cir. 1980); French v.

Heyne, 547 F.2d 974 (7th Cir. 1976). Nevertheless,

providing access to rehabilitative programs to general

population inmates while denying access to such programs

to inmates segregated for nondisciplinary reasons may

constitute a violation of the Equal Protection Clause of the

Fourteenth Amendment. Durso v. Rowe, 579 F.2d 1365(7th

Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59

L.Ed.2d 82 (1979); French v. Heyne, supra. If the denial of

access to rehabilitative programs for inmates in protective

custody does not rationally further some legitimate state

interest, the disparate treatment of those inmates may be

proscribed. Durso v. Rowe, supra; French v. Heyne, supra.

Generally, a rational relationship exists between the

legitimate state interest in maintaining prison security and

providing protective custody to inmates with limitations on

privileges. Allgood v. Morris, 724 F.2d 1098 (4th Cir. 1984);

Lovell v. Brennan, 566 F Supp. 672 (D.Me. 1983), affirmed,

728 F.2d 560 (1st Cir. 1984); Durrough v. Hogan, 563 F.2d

1259 (5th Cir. 1977). When the state creates the conditions

necessitating the widespread use of protective custody,

however, the denial of access to rehabilitative programs is

not justified by the state’s interest in prison security.

Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977). See

also Reddin v. Israel, 455 F.Supp. 1215 (E.D.Wis. 1978).

The security interest is not rationally furthered by over-

crowding protective custody facilities while overcrowded,

understaffed, and other deplorable conditions of confine-

ment persist in the general population.

Such aggravating conditions exist at the Reformatory,

resulting in the utter failure to control violence among the

inmate population and necessitating extensive use of

A-34

protective custody. Denying access to rehabilitative

programs to the large number of inmates in protective

custody is irrational and violates the inmates’ rights under

the Equal Protection Clause of the Fourteenth

Amendment.

In summary, the conditions existing at the Reformatory

at the time of and prior to the May 7, 1982 Order and

Memorandum in many respects imposed cruel and unusual

punishment upon the inmates or denied certain inmates of

their rights to equal protection. The Court recognizes that,

since the 1982 order, substantial progress has been made

toward correcting the unconstitutional conditions and that

the improvements must be considered in fashioning an

appropriate remedy. Ramos v. Lamm, 639 F.2d at 586. The

improvements at the Reformatory noted in detail in the

Court’s memorandum Order of July 7, 1983, included new

housing and health care facility construction, renovation of

existing facilities, increased staffing and improved

procedures for delivering necessary services and providing

exercise, recreation, education and work. The Court,

therefore, will modify the order of injunctive relief

previously entered in this cause consistent with the

constitutional violations found herein and in light of the

progress made toward remedying the unconstitutional

conditions of confinement.

Dated this 14th day of December, 1984.

/s/_ §S. Hugh Dillin

S. Hugh Dillin, Judge

Copies to:

Donald R. Lundberg, William E. Marsh, Legal Services

Organization of Indiana, Inc., Suite 300, 107 North

Pennsylvania Street, Indianapolis, Indiana, 46204

Linley E. Pearson, Indiana Attorney General, 219 State

House, Indianapolis, Indiana, 46204 (David A. Arthur,

Deputy)

SS eee i

A-35

John Daniel Tinder, United States Attorney, 274 United

States Courthouse, Indianapolis, Indiana, 46204 (Haroid

R. Bickham, Assistant)

James Clute, Civil Rights Division, Department of Justice,

P.O. Box 23991, Washington, D.C., 20026-3991

Edith S. Marshall, Department of Justice, HOLC

Building, 320 First Street, N.W., Washington, D.C.

20530

A-36

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RICHARD A. FRENCH

Morris E. Dozier,

MARTIN W. BRADBERRY,

HENRY C. JENNINGS,

On behalf of themselves and

all others similarly situated,

Plaintiffs,

-VS- NO. IP 75-677-C

NORMAN OWENS, Individually and

in his official capacity

as Superintendent of the

Indiana Reformatory;

CLOID SCHULER, In his capacity

as Executive Director of

the Adult Authority, Indiana

Department of Correction:

GORDON FAULKNER, In his

capacity as Commissioner

of the Indiana Department

of Correction,

ee Ne ee ee Ne ee ee ae ae a a ea ae ae ea ae ee eae ee ee eae a eal ea ad

Defendants.

AMENDED ORDER

The Court having this day filed its amended

memorandum of decision in the above entitled cause, as

follows: (H.I.), now pursuant thereto

IT IS ORDERED ADJUDGED AND DECREED that

the defendants, their agents, successors in office, and all

persons acting in concert or participation with them, shall

comply with the following requirements:

a Se

A-37

1. Paragraphs 3, 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 17, 20

and 21 of this Court’s order of May 7, 1982 are hereby

vacated. Consistent with the July 7, 1983 amendments

made to the May 7, 1982 order, paragraph 11 of the order is

amended to provide that: “The right of an inmate to call a

particular witness at a disciplinary hearing may be denied

by the defendants only when the record reflects a justifi-

able reason for refusing to call the desired witness.”

2. Effective January 1, 1985, and thereafter the popula-

tion at the Indiana Reformatory shall not at any time

exceed 1,615 persons. This figure will be modified to take

into consideration any additional newly constructed

housing, if any.

3. Effective May 1, 1985, and thereafter, no more than

one inmate shall be assigned to any cell.

4. Effective May 1, 1985, and thereafter, double bunk

beds shall not be used in any dormitory.

5. At the earliest possible time and by no later than

January 1, 1985, the medical staff at the Reformatory shall

include at least two full-time medica! doctors, five full-time

physician’s assistants, a full-time hospital administrator, a

full-time pharmacist, a psychiatrist or psychiatrists for at

least 40 hours per week, two Masters level psychiatric

social workers, one Ph.D. clinical psychologist, two

behavioral clinicians, nine medical technicians, and two

full-time clerk typists. All medical personnel shall be fully

qualified, and ail newly hired personnel must be able to

converse fluently in the English language. If qualified

personnel cannot be obtained at present salary levels, raise

the levels.

6. Defendants shall provide medical care facilities and

equipment sufficient to make available adequate medical

care to the inmate population. Within 30 days, defendants

shall submit specific plans to comply with this paragraph

by May 1, 1985. Said plans shall include development of

alternative emergency care facilities, provisions for the

A-38

_ prompt referral of inmate patients for diagnosis and treat-

ment without nonmedical limitations on the number of

daily referrals, obtaining adequate medical equipment, and

either renovating the present facility or constructing a new

medica! facility at the Reformatory. Notwithstanding the

earlier compliance date of January 1, 1985. renovation of

the present medical facility shall be complete by January 1,

1986, or alternatively, construction of a new medical

facility shall be complete by July 1, 1986.

7. Defendants shall establish adequate and proper

procedures for the delivery of medical care to the inmate

population. Within 30 days, defendants shall submit

specific plans to comply with this paragraph by May 1,

1985. Said plans shall include procedures for sick call open

to all inmates at least six days per week, delineation of

responsibility and authority between the various medical

personnel, provisions for close supervision of all nonphysi-

cian personnel, and provisions for daily sick call for all

inmates confined to their cells.

8. Defendants shall provide substance abuse programs

and mental health services and counseling for those who

need and want such treatment. Within 30 days, the

defendants will submit a plan for compliance with this

paragraph, including crisis intervention, so that

compliance will occur on or before May 1, 1985.

9. Defendants shall within 60 days submit tothe Court a

plan which will provide for preparation and distribution of

special medically prescribed diets under the supervision of

qualified personnel.

10. The kitchen and dining room at the Indiana

Reformatory shall be at all times maintained in such a

condition as is necessary to provide the inmates with safe,

sanitary and nutritionally adequate food.

11. Each inmate at the Indiana Reformatory who is in

general population, protective custody, or otherwise

segregated for nondisciplinary reasons, shall have the

—————i‘(i‘i‘itit;””;”;t”

A-39

opportunity to engage in recreation outside his living unit

for at least 90 minutes each day. Inmates confined to the

Maximum Restraint Unit or the Administrative Segrega-

tion Unit for disciplinary reasons shall have the

opportunity to engage in recreation outside the living unit

for at least 50 minutes each day. The recreation shall be

made available outdoors, unless inclement weather or

security reasons necessitate otherwise, in which case the

recreation opportunity may be indoors. Whether indoors or

outdoors, the opportunity to recreate shall be in a facility

where the inmates have an opportunity to engage in

meaningful recreation. Inmates confined to Disciplinary

Segregation shall be afforded a meaningful opportunity to

recreate during the 60 minutes each day out of cell, which

opportunity to recreate can be out of doors, on the range if

adequate equipment is provided, or at some other place,

provided, however, that inmates who abuse the right to

engage in recreation may be deprived of such opportunity

for a period not to exceed 30 days. Otherwise, permitting

the inmates to have access to the range in front of the cells

does not constitute compliance with this paragraph.

12. Ail inmates confined in the protective custody

program and ali other inmates segregated for nonpunitive

reasons, shall be provided access to all programs, activities,

recreation and counseling on a basis which is reasonably

comparable with that afforded the general population.

Within 60 days, the defendants shall submit specific plans

to comply with this paragraph.

13. The defendants shall at all times employ an

adequate number of correctional officers to secure within

reason the personal safety of all inmates confined at the

Indiana Reformatory. The correctiona! officers shali be

adequately trained and shall be deployed in such a manner

that the personal safety of the inmates is protected.

Additional attention shall be given to dormitories and

upper tiers of the ceilblocks. The defendants shall submit a

plan for complying with this paragraph within 60 days of

this date.

A-40

14. All buildings at the Indiana Reformatory in which

inmates live or work shall be reasonably secure from

dangers of fire. In order to secure compliance with the

personal safety requirements of the Eighth and Fourteenth

Amendments, the defendants shall bring all buildings into

compliance with the standards of the Indiana State Fire

Marshal no later than May 1, 1985, and shall maintain the

buildings in accordance with that standard at all times

thereafter.

15. All operations in the various places of work and

training at the Indiana Reformatory shall be operated in a

safe manner as required by the Eighth and Fourteenth

Amendments to the Constitution of the United States in

accordance with the regulations of the Occupational Safety

and Health Administration. The defendants shall submit a

plan for compliance with this paragraph within 60 days of

this date.

All of which is considered and ordered this 14th day of

December, 1984.

/s/_ §S. Hugh Dillin

S. Hugh Dillin, Judge

Copies to:

Donald R. Lundberg, William E. Marsh, Legal Services

Organization of Indiana, Inc., Suite 300, 107 North

Pennsylvania Street, Indianapolis, Indiana, 46204

Linley E. Pearson, Indiana Attorney General, 219 State

House, Indianapolis, Indiana, 46204 (David A. Arthur,

Deputy)

John Daniel Tinder, United States Attorney, 274 United

States Courthouse, Indianapolis, Indiana, 46204 (Harold

R. Bickham, Assistant)

James Clute, Civil Rights Division, Department of J ustice,

P.O. Box 23991, Washington, D.C., 20026-3991

Edith S. Marshall, Department of Justice, HOLC

Building, 320 First Street, N.W., Washington, D.C.

20530

A-41

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

October 15, 1984.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. JOHN L. Correy, Circuit Judge

RICHARD A. FRENCH, et al., ) Appeal from the

Plaintiff-A ppellees, ) United States

) District Court for

No. 83-2280 vs. ) the Southern

) District of Indiana,

NORMAN G. OWENS, et al., ) Indianapolis

Defendants-Appellants. ) Division.

)

) No. 75-C-677

) Hon. S. Hugh

) Dillin, Judge.

ORDER

This matter is before the Court on the defendants-

appellants’ “MOTION FOR STAY” and the plaintiffs-

appellees’ “CONSOLIDATED MOTION TO REMAND

CASE TO THE DISTRICT COURT AND NOTICE OF

OPPOSITION TO APPELLANTS’ MOTION FOR

STAY.” On consideration thereof,

ITIS ORDERED that this case is REMANDED toallow

the district court to consider the parties’ motions for

modification and other action, as appropriate.

The parties are directed to file STATUS RE PORTS on

or before November 19, 1984.

A-42

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA ;

INDIANAPOLIS DIVISION |

RICHARD A. FRENCH, et al.,

Plaintiffs,

V.

CAUSE NO.

IP75-677-C

)

)

)

)

|

NORMAN G. OWENS, et al., )

)

Defendants. )

MEMORANDUM ENTRY

This cause came on for hearing upon the defendants’

Motion for Enlargement of Time Within Which to Comply

With Paragraphs 3 and 5 of Order. Although defendants’

motion is stated to be pursuant to Rule 6(b) of the Federal

Rules of Civil Procedure, the Court construes it to be a

motion for modification of a permanent injunction

pursuant to Rule 60(b) of the Federal Rules of Civil

Procedure. See U.S. v, City of Chicago, 663 F.2d 1354, 1359,

n.16 (7th Cir. 1981) (en bane).

Because this case is pending on appeal to the United |

States Court of Appeals for the Seventh Circuit, this Court 7

is presently without jurisdiction to grant any modification

of the permanent injunction. Textile Banking Co., Inc. v. |

Rentschler, 657. F.2d 844, 849 (7th Cir. 1981). However,

having heard evidence on the defendants’ motion, and in

accordance with the procedures outlined in Textile

Banking, the Court hereby declares that it is inclined to

grant relief upon defendants’ motion. 657 F.2d 844 at 849,

n.2. Therefore, defendants are now free to rely upon this

declaration in seeking leave from the Court of Appeals to

remand this case for consideration by this Court of a

modification to paragraphs 3 and 5 of the permanent

injunction.

A-43

Additionally, plaintiffs have orally moved in open court

that this Court reconsider and modify those portions of the

permanent injunction decided on pendent state law

grounds. In view of the very recent decision of the United

States Supreme Court in Pennhurst State School and

Hospital v. Halderman, —_— U.S. —~, 104 S.Ct. 900

(1984), it appears that some of the relief granted may be in

violation of the Eleventh Amendment. The Court is advised

that all parties have agreed in their briefs in the Court of

Appeals that this case should be remanded to the district

court for further consideration in light of Pennhurst. Thus,

this Court hereby declares, pursuant to Textile Banking,

that it is inclined to grant relief upon plaintiffs’ motion.

Plaintiffs, too, are free to rely upon this declaration in

seeking leave from the Court of Appeals to remand this case

for further consideration in light of the decision in

Pennhurst.

Entered this 30 day of August, 1984.

/s/_ §. Hugh Dillin

JUDGE, UNITED STATES

DISTRICT COURT

Distribution: Donald R. Lundberg

Legal Services Organization

of Indiana, Inc.

107 N. Pennsylvania St., #300

Indianapolis, IN 46204

David A. Arthur

Deputy Attorney Genera!

219 State House

Indianapclis, IN 46204

Harold R. Bickham

Assistant U.S. Attorney

274 U. S. Courthouse

Indianapolis, IN 46204

A-44

Paul S. Lawrence

Edith S. Marshall

Civil Rights Division

942 HOLC Building

Ist and C, N.W.

Washington, DC 20530

A-45

IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RICHARD A. FRENCH, et. al.,

Plaintiffs,

CAUSE NO.

IP 75-677-C

VS.

NORMAN G. OWENS,

Defendants,

UNITED STATES OF AMERICA

Amicus Curiae.

ORDER

This case came before the Court on June 29, 1983 for a

Compliance Conference with the Court. Attorneys for the

parties advised the Court that they were needing tc discuss

compliance with the Order of this Court dated May 7, 1982.

On August 13, 1982, after being ordered by the Court to

meet and discuss implementation of the Order, the parties

filed a Joint Report to the Court stating that:

“The Counsel for the Plaintiffs and the Defendants

have met with some of the Defendants and their

counsel at two substantial, lengthy meetings to discuss

compliance with the Order. Substantial progress has

been made toward reaching agreement on severa! key

items contained in the Order. The Defendants have

made a good faith effort to move toward compliance

with the Order as rapidly as current staff and

resources permit. The parties plan to continue their

discussion and are optimistic that some of the items in

the Order can be resolved without further judicial

proceedings. It is anticipated that some of the items in

the Order will be, in the future, subject to judicial

proceedings for a stay and for an appeal.”

ee ee ee ee ee ee ee ee

A-46

The Court finds, based on representations of counsel for

both parties, that the progress made by the Defendants

towards compliance with the Order has continued at a

reasonable rate from August 13, 1982 until the present

time. Specifically, based upon representation by counsel,

the Court finds that the following progress has been made

towards compliance with the Order:

1) Double celling has been dramatically reduced at the

Indiana Reformatory to the point where approximately 40

cells are occupied by two inmates at the present time;

2) The kitchen and serving area at the Indiana

Reformatory kas been rehabilitated and is now in

compliance with the Order of the Court;

3) The Maximum Restraint Unit has been re-

habilitated and is now in compliance with the Order of the

Court;

4) Substantial progress has been made toward

construction of a new hospital or infirmary such that the

defendants are now in compliance with or making substan-

tial progress toward compliance with the Court’s Order as

it relates to medical facilities;

5) The professional medical care provider staff at the

Indiana Reformatory has been significantly increased and

is now in compliance with the Order of the Court.

6) The Defendants have significantly improved the

access of self lock-up and protective custody inmates to

programs, activities and counseling and the Defendants

are currently in substantial compliance with the Order of

the Court;

7) The procedures for delivery of medical care to the

inmate population have been improved and the Defendants

are currently in compliance with the Court’s Order regard-

ing medical procedures;

8) The Defendants have added 44 new positions for

custody officers to the manning table of the Indiana

A-47

Reformatory and have filled most of those positions and the

Defendants are currently in substantial compliance with

the Court’s Order to secure sufficient staff to safely and

securely operate the Reformatory;

9) The Defendants have improved the availability of

substance abuse programs and mental health services and

counseling and are currently in substantial compliance

with the Order of the Court as to those programs;

10) The Defendants have improved the availability of

special medically prescribed diets, including the assign-

ment of a licensed dietitian to the Indiana Reformatory and

are in compliance with the Court’s Order to provide special

medically prescribed diets;

11) The Defendants have let bids which, when followed

through to completion, will bring the living units at the

Indiana Reformatory into compliance with the standards

of the Indiana State Fire Marshal, and the Defendants have

made satisfactory progress toward compliance with the

Court’s Order;

12) The Defendants have progressed towards bringing

the work locations at the Indiana Reformatory into

compliance with the Occupational Safety and Health

Administration Regulations and are currently in

substantial compliance with the Court’s Order.

The Court having duly considered the Motion to Stay and

the Motion to Amend filed by the Defendants, and the Court

further having considered the responses thereto filed by

the Plaintiffs, and the United States of America, Amicus

Curiae and the Court being further advised by counsel at

the conference with the Court on June 29, 1983,

NOW, THEREFORE IT IS ORDERED that the Order

of this Court dated May 7, 1982, is amended as follows:

1) Paragraph 2 of the Order is amended to provide that

effective October 1, 1983, and thereafter, the population of

the Indiana Reformatory shall not exceed 1,750 persons;

A-48

2) Paragraph 3 of the Order is amended to provide that

effective July 1, 1984, the population of the Indiana

Reformatory, shall not exceed 1,375 persons, provided,

however, that upon the completion of the 240 bed addition

to the Indiana Reformatory which is now under construc-

tion, the popuiation limit imposed by this paragraph shall

be increased to 1,615 persons;

3) Paragraph 9 of the Court’s Order is amended to pro-

vide as follows: “Each inmate at the reformatory who is in

general population, protective custody or self-lock-up, shall

have the opportunity to engage in recreation outside his

living unit, for at least 90 minutes each day. Inmates

confined to the Maximum Restraint Unit or the

Administrative Segregation Unit for Disciplinary Reasons

shall have the opportunity to engage in recreation for at

least 60 minutes each day. Weather permitting and except

in cases of emergency, all inmate recreation at the Indiana

Reformatory shall be out of doors. Inmates confined to

Disciplinary Segregation shall be afforded a meaningful

opportunity to recreate during the 60 minutes each day out

of cell, which opportunity to recreate can be out of doors, on

the range if adequate equipment is provided or at some

other place, provided however that inmates who abuse the

right to engage in recreation can be deprived of such oppor-

tunity for a period not to exceed 30 days.”

4) Paragraph 11 of the Order is amended to provide

that: “The right of an inmate to call a particular witness ata

disciplinary hearing may be denied by the defendants only

when the record reflects a justifiable reason for refusing to

call the desired witness.”

IT IS FURTHER ORDERED that the Defendants’

Motion to Stay the Court’s Order that all inmates be

provided an educational, vocational or job assignment is

hereby denied. |

IT IS FURTHER ORDERED that the Defendants’

Motion to Stay or Amend the Order entered by this Court

Ee

A-49

limiting the use of mechanical restraints by the Defendants

is hereby denied.

IT IS FURTHER ORDERED that counsel for both

parties have represented to the Court that the foregoing

Order disposes of all pending motions for stay and motions

to amend the Order, but in the event any such motions have

been inadvertently omitted from this Order, any and all

other motions to amend or for stay heretofore filed by the

Defendants in this action are hereby denied.

DATED this 7th day of July, 1983.

/s/ 8. HUGH DILLIN

S. HUGH DILLIN, UNITED

STATES DISTRICT JUDGE

Copies to:

Linley E. Pearson

Attn: David A. Arthur

Indiana Attorney General

Indiana State House

Indianapolis, Indiana 46204

Donald R. Lundberg

William E. Marsh

Michael R. Milsap

Legal Services Organization

of Indiana, Inc.

107 N. Pennsylvania #300

Indianapolis, Indiana 46204

Harold Bickham

Assistant U.S. Attorney

U.S. Courthouse

Indianapolis, IN 46204

Stephen Whinston

Special Litigation Section

Civil Rights Division

Department of Justice

942 HOLE Building

Ist and C., N.W.

Washington, D.C. 20534

A-50

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

RICHARD A. FRENCH

Morris E. Dozier,

MARTIN W. BRADBERRY,

HENRY C. JENNINGS,

On behalf of themselves and

ali others similarly situated,

Plaintiffs,

-VS- NO. IP 75-677-C

NORMAN OWENS, Individually and

in his capacity as

Superintendent of the

Indiana Reformatory;

CLOID SCHULER, In his capacity

as Executive Director of

the Adult Authority, Indiana

Department of Correction;

GORDON FAULKNER, In his

capacity as Commissioner

of the Indiana Department

of Correction,

ee New Ne Nee Ne Ne Ne Ne ee Ne ee Ne Ne Ne ee ee New Nee Nee Nee Ne Nee “ee es

Defendants.

MEMORANDUM OF DECISION

This is a class action brought under 42 U.S.C. §1983 by

four inmates in the Indiana Reformatory at Pendleton,

Indiana on behalf of all persons who are or will be confined

in the Reformatory. The inmates allege that the conditions,

rules, and practices at the Reformatory violate inmates’

rights guaranteed by the United States Constitution and by

the Indiana Constitution and laws of the state. The inmates

A-51

seek to enjoin the responsible state officials from further

violations.

The inmates complain of poor living conditions, in-

adequate medical care, lack of safety and security, bad food

services, inadequate educational and vocational programs,

an arbitrary system of prison discipline, and insufficient

access to the courts. The inmates maintain that conditions

at the Reformatory violate their right under the Eighth

Amendment to the United States Constitution to be free

from cruel and unusual punishment. The inmates also

argue that the system of prison discipline and the access to

legal materials fall short of the demands of due process of

law as guaranteed by the Fourteenth Amendment to the

United States Constitution. The inmates also insist that

their right to equal protection found in the Fourteenth

Amendment is violated because they are subject to harsher

conditions and treatment than are inmates at the Indiana

State Farm. Lastly, the inmates press a claim based on

state law, arguing that they are being denied their right to

rehabilitative and educational programs as guaranteed by

Article I, §18 of the Indiana Constitution and I.C. 1971, 11-

1-1.1-26. Since the initiation of the action, the statute just

mentioned has been repealed. However, it and other former

sections of statute defining prisoners’ rights have been

replaced by various sections of P.L. 120 of the Acts of 1979

(hereafter P.L. 120), having to do with the Department of

Correction. The 1979 Act is codified in I.C. 11-8-1-1 through

11-13-6-9; particular sections will be considered to the

extent that the evidence may tend to show a violation

thereof. Rule 15(b), F.R. Civ.

Jurisdiction over this case is based on 28 U.S.C. §§1343(3)

and (4), which provide for the original jurisdiction of

federal district courts in suits authorized by 42 U.S.C.

§1983. The inmates’ request for declaratory relief is

authorized by 28 U.S.C. §§2201 and 2202. Jurisdiction over

the state law claims is based on pendent jurisdiction.

:

Procedural Background

This case began on November 21, 1975, when four

inmates in the Indiana Reformatory filed a pro se

complaint alleging that the conditions, rules, practices, and

policies at the Reformatory were unconstitutional. This

complaint was dismissed with leave to file an amended

complaint.

A-52

On May 13, 1976, an amended class action complaint was

filed, charging constitutional violations at the

Reformatory. Plaintiffs’ motion to maintain the suit as a

class action was granted on December 20, 1977. The

plaintiff class was defined as “a]] persons who are or may in

the future be confined in the Indiana Reformatory,

Pendleton, Indiana. The United States Government

entered the case on March 10, 1978 when the Government

was granted leave to participate as amicus curiae.

Trial began on July 5, 1978 and ended on August 14,

1978. Ruling was reserved pending submission of proposed

findings of fact and conclusions of law by both parties and

filing of post-trial briefs. The cause was reopened for the

taking of additional evidence March 1-5, 1982. The Court,

in the presence of counsel, inspected the cellblocks, inside

dormitories, kitchen, dining hall, visitors’ room, and

infirmary on March 5, 1982.

General Principles

The Eighth Amendment to the Constitution of the United

States prohibits cruel and unusual punishment and is

applicable to the states through the Fourteenth

Amendment. Robinson v. State of California, 370 U.S. 660,

82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). There is no precise

definition of cruel and unusual punishment nor are there

any mechanical standards to apply; rather, the Eighth

Amendment embodies broad concepts of decency and

humanity against which penal measures must be

evaluated. Punishment must be made compatible with

A-53

“evolving standards of decency that mark the progress of a

maturing society.” Rhodes v. Chapman, —___ U.S. ——., 101

S.Ci. 2392, 69 L.Ed.2d 59 (1981); Trop v. Dulles, 356 U.S.

86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957).

The ban on cruel and unusual punishment was first used

to check the use of torture and other physical abuse; how-

ever, the ban has developed into a means to prevent condi-

tions which involve the unnecessary and wanton infliction

of pain or go beyond present notions of decency. There is no

iron curtain surrounding prisons. Prison confinement is a

form of punishment subject to the stricture of the Eighth

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

285, 50 L.Ed.2d 251 (1976); Newman v. Alabama, 559 F.2d

283 (5 Cir. 1977); Laaman v. Helgemoe 437 F.Supp. 269

(D.N.H. 1977).

The shifting standard of what constitutes cruel and

unusual punishment is not, however, an invitation to a

federal court to create its vision of an ideal prison. As the

Supreme Court pointed out in Wolff v. McDonnell, 418 U.S.

539, 94 S.Ct. 2963, 41 L.Ed.2d 954 (1974), prison is “a

closed, tightly controlled environment peopled by those

who have chosen to violate the criminal law and who have

been lawfully incarcerated for doing so.” Lawful

incarceration by definition involves withdrawal of some

rights and privileges. The running of prisons involves

complex and often contradictory objectives. Notions of

punishment and rehabilitation mix with the need for safety

and security. Courts must proceed cautiously in making an

Eighth Amendment judgment. See Rhodes v. Chapman,

supra.

However, the need for discretion does not mean no

judicial oversight. “Courts certainly have a responsibility

to scrutinize claims of cruel and unusual confinement, and

conditions in a number of prisons, especially older ones,

have justly been described as ‘deplorable’ and ‘sordid’. Bell

v. Wolfish, 441 U.S., at 562, 99 S.Ct. 1861, 60 L.Ed.2d 447.”

Rhodes v. Chapman, supra.

A-54

In determining whether the conditions at the

Reformatory are cruel and unusual, each factor cannot be

viewed separately. It is necessary to look at the totality of

conditions in evaluating claims based on the Eighth

Amendment. As the Court of Appeals for the Fifth Circuit

explained in Gates v. Collier, 501 F.2d 1291 (5 Cir. 1974), in

upholding a district court’s determinatien of a violation of

the ban on cruel and unusual punishment:

“Each factor separately, i.e., overcrowding dormitory

barracks, lack of classification according to severity of

offense, untrained inmates with weapons, lack of

supervision by civilian guards, absence of a procedure

for confiscation of weapons, may not rise to constitu-

tional dimensions; however, the effect of the totality of

these circumstances is the infliction of punishment on

inmates violative of the Eighth Amendment, as de-

termined by the trial court.” 501 F.2d at 1309. See also

Williams v. Edwards, 547 F.2d 1206 (5 Cir. 1977);

Johnson v. Levine, 588 F.2d 1378 (4 Cir. 1978).

It is a familiar principle that where there are possibly

dispositive state law claims pendent to federal constitu-

tional claims, the state claims will be dealt with first.

Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1872, 39 L.Ed.2d

577 (1974); Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct.

445, 90 L.Ed. 358 (1946); Siler v. Louisville & Nashville R.

Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). This

rule will be observed insofar as it is possible so to do.

Findings of Fact

The Indiana Reformatory is amaximum security correc-

tional facility housing adult male felons. It was built in

1923. The Reformatory proper is surrounded on three sides

by high walls, with the fourth side enclosed by the cellhouse

building. There are some buildings outside the walls,

including a dormitory for inmates and a farm operation.

The Reformatory has 35 acres within its walls and 1,900

acres in the entire institution; few inmates are permitted

outside the walls.

A-55

The number of inmates housed in the Reformatory in

August, 1978 was 1,215. By January 27, 1982 it had risen to

1,972.

I. Housing

“Every owner of an animal within the city shall see that

his animal ... has proper ... shelter and ventilation,

including quarters that are protected from excessive

heat and cold and are of sufficient size to permit the

animal to exercise and move about; such exercise

enclosure shall be no smaller than twenty-four (24)

square feet in area...” Sec. 6-7, Indianapolis Code

(City of Indianapolis, Indiana).

Inmates are housed in three cellhouses and two

dormitory buildings inside the walls, and one dormitory

located outside the walls.

There are at present 297 usable cells in J cellhouse, 317 in

H cellhouse, and 319 in G cellhouse. Each cellhouse consists

of an inside cellblock in which two rows of cells on three

tiers or floors are in the middle of the cellhouse, set back

from the outside walls of the cellhouse. The cells are located

back to back and are separated by a service area which

runs the length of the cells and where wiring and plumbing

are located. A row of cells on a particular tier is known asa

range.

The cells in G and H cellhouses contain 44 square feet,

and cells in J cellhouse contain 47.6 square feet. The cel!s

have three solid walls and a barred front. Each cell

contains a sink with cold running water, an uncovered

toilet, one or two lockers, and one or two beds. The furniture

and fixtures take up half the floor space. The back of each

cell contains a 96 square inch grate with 12 to 15 holes in it,

which is to serve as a ventilation duct. The grates are not

cleaned and are clogged with dirt and lint.

The living quarters do not have adequate positive

ventilation systems. The heat comes into the cellhouses in

A-56

the lower part of the outside walls. There is no mechanism

to disperse the heat to the cells. There is no summertime

forced-air system to the cells. The cold and hot air systems

are inadequate. For the most part the manipulation of the

windows and the heating systems in the living quarters is

the method of ventilation control. Many of the window

opening and closing devices are defective. Consequently

many windows must be sealed in the winter, disallowing

any opportunity for manipulation when it is found

necessary. The cells are too cold in winter and too hot in

summer.

An attempt has been made in the cellhouses since 1978 to

improve in-cell lighting. There have been considerable

wiring alterations and fluorescent bults have been sub-

stituted for incandescent bulbs. Unfortunately this has not

always resulted in improved lighting in the individual

cells. In general, in-cell lighting is inadequate. Many, if not

most, of the fluorescent fixtures, since initial issuance, have

been replaced by incandescent bulbs of 40 or 60 watts. The

result, no improvement. Many outside windows are dirty

which diminishes the amount of natural light supplied to

the cell and dormitory areas. Many cells have dark colored

paint, have very dirty walls, walls practically covered with

posters and the like, all of which adversely affect the

amount of light available to the inmate. Some light fixtures

are in need of repair.

Many cells have toilet stools and sinks which, because of

age and deterioration, are literally uncleanable. Many cells

need paint. Many shower areas contain an accumulation of

grime from the combination of water with detergents, and

even have a noticeable mold growth. Cells are wet mopped

only once a week, often without the benefit of cleaning

materials. Showering is done daily by ranges, with 15

minutes being allowed for showering including travel time

from the cell to and from the shower area, located at one end

of the first floor of each cellhouse. Given the number of men

using the showers at the same time and the number of

showerheads, the time allowed is inadequate.

A-57

Defendants maintain a separate housing unit for inmates

who are considered to require segregation from the general

inmate population. This unit is known as administrative

segregation or “A.S.” This unit consists of 100 cells in two

tiers, arranged back to back. There are 26 cells on the lower

tier and 24 cells on the upper tier in each section. The ceils

have the same size, appearance, and furnishings as the cells

in the cellhouses.

One side of administrative segregation is used for

inmates sent to the unit as discipline for infractions of

Reformatory rules. (The “DLU”.) The other side of the two-

tier cellblock is used to house three types of inmates: those

who are confined in segregation for their own protection

(self-lockup), those who are under investigation for

» violating an institutional rule, and pretrial detainees

transferred to the Reformatory (safekeepers).

The unit known as isolation or the maximum restraint

unit (“MRU”) is on the ground floor of the administrative

segregation building. The MRU is used to provide even

more secure confinement than disciplinary segregation.

Each of the cells in isolation has a barred door which is

covered with mesh which is flush with the wall of the cell.

There is also a solid metal door which has a 4” x 6” peephole

as the only means of entrance of light. This door is

controlled by the correctional officers and is shut at times

as ameansof disciplining inmates. One 40 watt light bulb is

located above the door and is controlled by a switch located

outside the cell. The toilet and lavatory fixtures are

particularly scabrous. |

In 1978 each of the cells had asingle occupant. According

to the “Master Plan” of the Department of Corrections, put

in evidence at that time, the anticipated rise in prison

population would be met by the construction of new

facilities in both northern and southern Indiana. Indeed,

the population at the Reformatory (1,215 on August 11,

1978) was to be reduced by 1981. Unfortunately, the

Legislature has never funded the program, with the result

A-58

that the population has zoomed to nearly 2,000 and doubie-

celling is rampant.

As of January 27, 1982, 310 of the 938 available cells in G,

H and J cellhouses — 33% — had been converted to double

cells by the addition of an extra bed and locker, and 26% of

the 100 administrative segregation cells had likewise been

so converted. This reduced the gross available space per

man to less than 24 square feet, and the net space to

approximately half this amount. The minimum amount of

square feet per man thought to be necessary by the expert

witnesses who testified, including defendants’ experts, is

50 square feet. Considerably more may be required

depending upon how much time per day the inmate is

required to spend in his cell.

In the A.S. unit the cells have less height than those in the

regular cellblocks, with the result that it is physically

impossible for the doublecelled occupant of the upper bed

to sit erect. There is no room in a double cell for a chair or

stool, so unless the occupant of the upper bed has

permission to sit on his cellmate’s bed (frequently not

granted) he cannot sit except upon the floor or the coverless

toilet stool. It is only those in protective custody who have

been doublecelled, so that those who have committed no

infraction of the rules are treated more harshly than those

in the DLU.

Besides the cellhouses, inmates are housed in several

dormitory units, two located inside the walls and one

located outside the walls. One inside dormitory is referred

to as the K dormitory complex and consists of six separate

rooms on two floor. All rooms are double bunked, and

nearly all bunks are occupied.

The sizes of the dormitories and number of bunks in each

are:

K-1 — 3,184 square feet — 48 bunks

K-2 — 1,892 square feet — 30 bunks

K-3 — 2,509 square feet — 48 bunks

K-4 — 2,509 square feet — 48 bunks

K-5 — 17,988 square feet — 112 bunks

K-6 — 6,438 square feet — 96 bunks

=o -

A-59

A part of the area in each room in K dormitory is a

common area where tables are located for playing cards,

checkers, etc. Each room has one television set, and the two

larger rooms have two. However, the entire area is very

crowded, with bunks as close together as 24 inches or less.

There are overhead plumbing leaks. Showers are unclean,

toilet seats broken, and some lavatories do not function

properly.

Public health standards recommend that an inmate

housed in a dormitory be afforded a minimum of 75 square

feet of living area and an additional 35 square feet of

activity space. None of the rooms in K dormitory meet this

standard, or even come close to it.

The other inside dormitory is called O dormitory. It

contains one large room, O-1, and eight relatively small

rooms. This space was not constructed for housing

purposes, but has been converted for that use since 1978

because of the influx of new prisoners. O dormitory was

opened May 1, 1981. The nine O rooms together contain

8,618 square feet of space, housing 210 persons. Fifty per-

sons occupy 3,190 square feet in room O-1, while 160 per-

sons are housed in the remaining 5,428 square feet — an

average of 33.92 square feet each, including that contained

in the common area in each room, and that allotted for

toilets, showers, and lavatories. As in K dormitory, each

room does contain a common area, with tables, and each

room contains a television set (2 in O-1).

Each inmate in the K dormitories and in O-1is furnished

with a chair. However, it is so crowded in the other rooms in

O dormitory that only 77 chairs are furnished for the 160

persons. In some of the rooms, the bunks are only twenty

inches apart. All rooms are poorly ventilated, with the

result that some are stifling, uncomfortable and odorous.

Showers and toilets in O-1 and the second floor area are in

poor condition.

The outs.:c. dormitory is likewise overcrowded and has

other major deficiencies. However, it is undergoing some

A-60

major remodeling, so no further comment will be made as

to it. It is occupied by inmates who are minimum security

risks. '

II. Exercise and Recreation

“(a) To the greatest extent possible, consistent with

the security of facilities and programs and depart-

mental resources, the department shall establish recrea-

tional and cultural programs and activities designed to

develop and maintain the physical and menial health of

confined persons.

(6) The programs and activities should cover a wide

range of interests and talents and include:

(1) Meaningful, relevant reading material;

(2) Reasonable availability of radio and television;

(3) Reasonable opportunities to engage in musical

endeavors, painting, crafts, and other creative

pursuits; and

(4) Availability of physical recreation and sports.”

Indiana Code 11-10-11-1.

“A confined person shall be given a reasonable oppor-

tunity for physicai exercise outside of his immediate

living quarters and out-of-doors if feasible.” Indiana

Code 11-10-11-2.

Public Law 120, from which the above is excerpted,

reads well and shows that the Legislature recognizes

“evolving standards of decency.” Unfortunately,

defendants appear to be in violation of State law at the

Indiana Reformatory, partly because of lack of funding,

partly because of overcrowding, and partly because of a

lack of planning on the part of the defendants.

For those inmates who are in the general population and

have work or study assignments, recreation during good

weather months is adequate. During this time of year they

are afforded approximately 90 minutes of outdoor recrea-

tion per day, in addition to the time spent out of their cells at

meals and at their jobs. The outdoor facilities include two

baseba!l diamonds, an area for football or soccer, horseshoe

A-61

pits, four handball courts, two basketball courts, a

volleyball court, a shuffleboard area, and room for jogging.

In the winter months and on rainy days, however, exer-

cise is limited to the so-called fieldhouse, which is the sole

facility for indoor recreation. The fieldhouse contains a tiny

gymnasium simultaneously used for basketball, weight-

lifting, ping pong, punching bags, and television. There are

four television sets hung above the bleachers two on each

side of the basketball floor. When basketball activities are

taking place, or even when inmates are “pumping iron” or

punching bags, it is impossible for the audio portion of the

television program (or programs) to be understood. The

overall impression is of bedlam.

There is an auditorium in the building, but it is not used

because it is in a state of disrepair. So much for “musical

endeavors, painting, crafts, and other creative pursuits.”

Moreover, as of early 1982, at a time when the prison

population was 1,972, only 64.4% of the inmates had assign-

ments. The balance included 402 persons in “idle-hold”

status, meaning that they were in the general population

but without a job through no fault of their own. There were

277 persons in the A.S. unit and the MRU, 95 of whom were

self-lockups. These persons have much less opportunity for

meaningful exercise or recreation outside their living

quarters.

Persons in “idle-hold,” for example, are presently

allowed a 90 minute recreation period each weekday, and

another hour every other Saturday or Sunday. They are

allowed 45 minutes for each meal, and are afforded a 10

minute shower period each night after the recreation

period. Otherwise, they are locked in their cells all day. In

short, they spend approximately 20 hours per day in the

cramped confines of a cell or dormitory, frequen.'y being

doublecelled!

Prisoners on hold status are not permitted to visit the

library (other than the law library) and are not permitted

A-62

to check books out of the library. So much for “meaningful,

relevant reading material.” Some prisoners on idle-hold

have been seeking a job for more than a year, without

success.

Those in administrative segregation are even less

favored — including self-lockups who may have requested

being locked up for their own protection because of

suspected cooperation with their jailers. They presently are

permitted to go to the gymnasium two days a week for a

period from 8:00-10:30 a.m., and to the commissary once a

week for 45 to 60 minutes. They are allowed to make one 5 to

10 minute phone call per month. Otherwise they are locked

up all the time, including meal time, as their meals are

brought to them and served in their cells. Those who are

“red-tagged” are held in their cells 24 hours per day except

for a shower. When the weather permits outside exercise,

they are allowed 30 minutes per day in a small fenced area

just outside the A.S. building. The area is about 30’ x 50’

and no equipment is furnished other than a basketball,

checkers and a checkerboard.

Although the dormitories have television sets, none is

available in the cellblocks. There is no day room space

provided in the cellblocks whatsoever, although it would

seem that it would be possible to utilize an area in the

hallway outside the first floor ranges for a day room, and

supply television in such areas. The only radio facilities in

the cellblocks are jacks into which a radio may be plugged;

there is a choice of three stations.

III. Medical Care

“(c) A committed person is entitled to:

(1) Medical care, medicc! personnel, and medical

facilities of a quality comp.ying with applicable state

licensing requirements;

(2) First aid or emergency medical treatment on a

twenty-four-hour basis; and

(3) Mental health care by a psychiatrist or

psychologist.” Indiana Code 11-10-3-2.

A-63

“The department shall provide for the care and

treatment of every committed offender who is

determined to be mentally ill by a psychiatrist employed

or retained by the department. To provide that care and

treatment, the department may:

(1) Establish and operate its own mental health

facilities and programs;

(2) Transfer offenders to the department of mental

health, subject to the approval of the commissioner of

mental health; or

(3) Contract with any city, county, state, or federal

authority or with other public or private organizations

for the provision of care and treatment.” Indiana Code

11-10-4-2.

A. Medical Services

The quantity and quality of medical care at the

Reformatory has retrogressed from marginal in 1978 to

inadequate in 1982. Then and now there is only one medical

doctor, Dr. Choi, who theoretically is on call 24 hours per

day, and who also serves as medical director. This person is

a native of Korea who received the bulk of his formal

medical education in that country. Because of language

problems, he has a great deal of difficulty in

communicating with many of his patients. Assisting him

are three physician’s assistants (“P.A.”) and nine medical

technicians (“Med.Tech.”). One P.A. and two Med.Techs.

have been added since 1978, but on the other hand in 1978

the institution had the services of three additional medical

doctors, working on contract, and now has but one, a

urologist, for one evening a week. Meanwhile, the prison

population has increased by 62%.

There are also two dentists who work at the Reformatory

full time. The press of work is such that they have no time

for preventative or restorative work, but are largely

limited to doing fillings and extractions. The medical

complement is rounded out with one pharmacist, two

clerks, a part time optometrist, and a hospital administra-

tor who is about to leave.

A-64

The medical facility is contained in a separate two-story

structure of brick construction within the walls. The first

floor contains a sick call area, administrative offices,

pharmacy, emergency room, dental department,

segregation section, radiology unit and an unused kitchen.

The basement and first floor hallway are used as a waiting

area for those attending sick call. On the second floor, there

is an infirmary section for inpatients consisting of a ward

and rooms for medical isolation. There are also areas for

laboratory and medical staff offices, but the laboratory is

not is use.

Sick call for the administrative segregation and the

MRU consists of a medical technician who goes to the

cellnouse and communicates through a locked door. Dr.

Choi walks through the area once a week but rarely

examines the inmates. Those on hold status in the general

population sign up on a sheet with the cellhouse clerk. A

medical technician reviews the sheet and decides who

should be given over-the-counter medications or called out

to see the physician assistant, or some other opzion. Those in

the general population group who have jobs sign out with

their work supervisor and come to the infirmary where

they are seen by a medical technician — aclassific

This text is long and has been trimmed here. Open the source document for the complete record.