# Petition for Writ of Certiorari — Owens v. French > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1909%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 817 ## Text 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 <