Petition for Writ of Certiorari — Cody v. Hillard
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ey , Supreme Court, U.S,
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| JAN 4 1988
SPANTOL, JR.
IN THE
CLERK
=
Supreme Court of the United States
WILLIAM R. CODY, et al.,
Petitioners,
CAROLE HILLARD, et ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ELIZABETH ALEXANDER
Counsel of Record
ALVIN J. BRONSTEIN
DOUGLAS CUMMINGS
CUMMINGS LEGAL
CLINIC
NATIONAL PRISON PROJECT 617 West 11 Stree:
OF THE AMERICAN CIVIL
LIBERTIES UNION
FOUNDATION
1616 P Street, N.W.
Washington, D.C. 20036
(202) 331-0500
Date: January 4, 1988
Sioux Falls, S.D.
57104
(605) 332-8585
WILLIAM FROKE
EAST RIVER LEGAL
SERVICES
335 No. Main Ave.
Suite 300
Sioux Falls, S.D.
57102-0305
(605) 336-9230
CASILLAS PRESS INC - 1717 K St NW WASH DC 20036 - 223-1220
ee en ee
i
QUESTIONS PRESENTED
Did the Court of Appeals wrongly
interfere with the discretion of the
trial court to require at least a
temporary restriction on prison
overcrowding in order to cure the
violations of the Eighth Amendment
admitted by the respondents?
Must prison overcrowding amount to
torture, cruel deprivation, or
sadistic punishment in order to
violate the Eighth Amendment?
ii
LIST OF PARTIES
The petitioners William R. Cody and
Roger Flittie! represent a class of
prisoners at the South Dakota State
Penitentiary. In the Eighth Circuit there
was also an intervening plaintiff, LaVerne
Koenig, a protective custody prisoner. 2
The respondents are Carole Hillard,
President of the Board of Charities and
Corrections for the State of South Dakota;
Ted Spaulding, P.A. Gehldoff, and Lyle
Swenson, members of the Board; James Smith,
Executive Secretary; and Herman Solen,
1 During the course of the Eighth
Circuit proceedings, Roger Flittie, who had.
been a named plaintiff, returned to the
Penitentiary and was again recognized as a
named plaintiff representing the class of
prisoners in the trial court.
2 Mr. Koenig intervened in the
trial court in order to appeal the denial
of certain additional relief to protective
custody prisoners. The Eighth Circuit
appointed separate counsel for Mr. Koenig.
This petition for certiorari does not seek
to challenge the disposition of the
protective custody claims raised by Mr.
Koenig.
Neo ee
iii
Warden of the South Dakota State
Penitentiary. All respondents were sued in
their individual and official capacities.
Mr. Koenig, who was represented by
separate counsel in the Circuit Court of
Appeals, is not a party to this petition
except insofar as he is a member of the
class represented by the petitioners.
The petitioners respectfully pray
that the Supreme Court grant a writ of
certiorari to review the judgment and
opinion of the United States Court of
Appeals for the Eighth Circuit, entered in
the above-entitled proceeding on October 6,
1987.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED...... LOC TT ae bon
LIST OF PARTIES........ ecccccccccs erry:
TABLE OF CONTENTS......... cacceesesesoveeaV
meds OF RIPTTIORITING. cc cccsccccscsscseseeeWVe
OPINIONS BELOW.........24.- cocccccccccccoodh
JURISDICTION..... i 1
STATUTES INVOLVED... ccccccccccccccccccceld
STATEMENT OF THE CASE......cccccccces coceed
REASONS FOR GRANTING THE WRIT..........2.2..-8
I. THE DECISION OF THE
EIGHTH CIRCUIT CREATES
A CONFLICT WITH THE
SEVENTH CIRCUIT... . cc ccccccccccs 8
II. THE DECISION OF THE
COURT OF APPEALS
MISCONSTRUES APPLI-
CABLE PRECEDENT OF
THIS COURT... .cccccccece ceccee 16
A. The Court of Appeals
Erred By Applying a
Torture or Sadistic
Punishment Standard......17
B. The Court of Appeals
Failed to Apply the
Clearly Erroneous
Standard of Review...... 30
C. The Court of Appeals
Failed to Apply
a a 2! ee 34
ee er er ee ee 39
vi
TABLE OF AUTHORITIES
Cases
Anderson v. City of Bessemer
City, N.C. U.S. :
105 S.Ct. 1504 (1985)........ yer
Battle v. Anderson, 708 F.2d
1523 (10th Cir. 1983)
cert. denied sub non.
Meachum v. Battle, 465 U.S.
1024 (1964) .ccccccccccccccces TEU TTTTT TY 14
Bounds v. Smith, 430 U.S. 817
POGOTS «6 5 0-05604060000000nsE05se4ennnenes 3
Cody v. Hillard, 830 F.2d 912
(8th Cir. 1987) (en banc).......... passim
Cody v. Hillard, 799 F.2d 447
(Bt Cis. 1986) cccccccccccvcccceccsccese 1
Cody v. Hillard, 599 F.Supp.
1025 (D.S.D. 1984)........ 1, 5, 9, 30, 32
Crowe v. Erickson,
Civil No. 72-4101 (D.S.D.)
(May 4, 1977) wccccccccccccccccccccceces 37
Estelle v. Gamble, 429 U.S. 97
(1976) wccccccccccccccccces eoscccseseoss 21
Foulds v. Corley, F.2d
No. 87-2730 (5th Cir.)
(DOC. 1, 1987) ccccccccccccccccccccesecs 23
French v. Owens, 777 F.2d 1250
(7th Cir. 1985), cert. denied
U.S. 107 §.Ct. 77
vii
Hendrix v. Faulkner, 525 F.Supp.
435 (N.D.Ind. 1981), mod.
Wellman v. Faulkner, 715 F.2d
269 (7th Cir. 1983) cert.
denied 468 U.S. 1217 (1984)............ 12
Hutto v. Finney, 437 U.S. 678
(197B) ccccccccccsveccscccsicccccccecs passim
Inmates of Allegheny County
Jail v. Wecht, 754 F.2d
220 (3FG CAE. 1968) ccccccccccccccccsces 14
Johnson v. Glick, 481 F.2d
1028 (2nd Cir.) cert. denied
sub nom. John v. Johnson,
414 U.S. 1033 (97S) ccccccccccccsccceces 20
LaFaut v. Smith, F.2d
No. 86-7162 (4th Cir.)
i es a ccna sé kb e660 15, 23
Mitchell v. Cuomo, 748 F.2d
eo ee re 13
Morgan v. District of Columbia,
824 F.2d 1049 (D.C. Cir.
SD ee ee aan es aldose 13, 22
Newman v. Graddick, 740 F.2d
a en ica tksnneous 15
Noll v. Carlson, 809 F.2d
2466 (OER CER. ISOT) ecvccccccccsecscces 22
Pressley v. Hutto, 816 F.2d
SFr Gee Ges Bei cccccecnccesconccsen 22
Procunier v. Martinez,
416 U.S. 396 (1974) .cccccccccccceces eeeed
Pullman-Standard v. Swint,
456 U.S. 273 (1982) ccccccccccccecece 33, 34
viii
Rhodes v. Chapman, 452 U.S.
BOP EROGR) ccncccccsscsdesccescoses - passim
Ruiz v. Estelle, 679 F.2d
1115 (5th Cir. 1982), mod.
688 F.2d 266, cert. denied
a OE ke pow acesbesse sae
Santana v. Collazo, 714
F.2d 1172 (lst Cir. 1983),
cert. denied 466 U.S. 974
Dit eeethh toe debabebecbeese daca acs
Toussaint v. Yockey, 722
F.2d 1490 (9th Cir.
1984).... *ereere *enreenre#ese#se ee##Hee#ee#ee#e Ve 12, 14
Turner v. Safley, U.S.
, 107 BeGee 2254 (1987) s*eeneer#skeee *eeee -25
Walker v. Mintzes, 771 F.2d
mee Gem Gets B9GR yp cccccccascccecsccseehs
Wellman v. Faulkner,
715 F.2d 269 (7th Cir.
1983), cert. denied
468 U.S. 1217 (1984)........... 11, 322, 34
Whitley v. Albers, 475 U.S.
DER CROSS) cccccccccccescsccosccecc fem
Youngberg v. Romeo, 457 U.S.
307 (1982) Se ewe eeeeeeeeceeeee €c eee eae ee ee & 22
FEDERAL RULES AND STATUTES
eB ag Rr Pere eer Pere 5
28 weMoeGea §1343.. *ewrneetee *enreenewewneneee#e e## # oebe 2
ei. Ys 1st a5 ke Reet 4a. 4
P.M.Civ.P. BBLS SBCA). ccceccecasecess 32, 34
OPINIONS BELOW
The en banc opinion of the Court of
Appeals for the Eighth Circuit entered
October 6, 1987, is reported at 830 F.2d
912, and is reprinted as Appendix I in the
appendix separately filed (hereafter
"App."™). The opinion of the panel is
reported at 799 F.2d 447. App.II. The
trial court opinion is reported at 599
F.Supp. 1025. App. III.
JURISDICTION
The opinion and judgment of the United
States Court of Appeals for the Eighth
Circuit were issued on October 6, 1987.
This Court has jurisdiction to review the
judgment pursuant to 28 U.S.C. §1254(1).
STATUTES INVOLVED
This case involves 42 U.S.C. §1983 and
its jurisdictional counterpart, 28 U.S.C.
§1343.
2
Every person who, under color of
any statute, ordinance, regula-
tion, custom, or usage, of any
State or Territory, subjects, or
causes to be subjected, any
citizen of the United States or
other person within the jurisdic-
tion 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.
42 U.S.C. §1983 provides in pertinent part:
U.S.C. §1343 provides in pertinent
(a) The district courts shall have
original jurisdiction of any civil
action authorized by law to
commenced by any person:
be
(3) To redress the deprivation,
under color of state law,
statute, ordinance, regulation,
custom or usage of any right,
privilege or immunity secured by
the Constitution of the United
States or by any Act of Congress
providing for equal rights of
citizens or of all persons within
the jurisdiction of the United
States;
(4) To recover damages or to
secure equitable or other relief
under any Act of Congress
providing for the protection of
civil rights, including the right
to vote.
STATEMENT OF THE CASE
This action was filed in 1980 under 42
U.S.C. §1983 challenging the conditions of
confinement at the South Dakota State
Penitentiary (hereinafter SDSP) in Sioux
Falls, South Dakota. Subsequently, the
trial court, the Honorable Donald J.
Porter, approved certification of a class
represented by the petitioners.
The trial, lasting eleven days, was
completed in December, 1983. In April,
1984, the trial court issued a memorandum
opinion finding that a variety of
conditions violated the Eighth Amendment. 2
The trial court's opinion documented a
number of deficiencies, including numerous
fire safety hazards; cellblock ventilation
that ranged from inadequate to "virtually
3 The trial court also found that
prisoners were denied their constitutional
right to access to the courts in violation
of Bounds v. Smith, 430 U.S. 817 (1977).
4
nonexistent;" inadequate heating; a lack of
hot water; improper electrical wiring; food
storage and preparation deficiencies; and
health and safety hazards in the shop
areas. The medical care was found to be
deliberately indifferent to serious medical
and psychiatric needs.4
In addition, the trial court found the
prison to be "grossly understaffed." In
the thirty months since double-celling had
begun, the prison had experienced a riot
involving approximately twenty prisoners
and some sixty incidents of fighting or
assaults. > The trial court compared its
4 For example, medical staffing was
so inadequate that at times when no
licensed staff were on-site, untrained
inmate "nurses" provided emergency care and
diagnosis. Psychiatric care was virtually
non-existent; prisoners with serious mental
problems were not treated, with the result
that their physical condition deteriorated.
° Although not in the trial court
record, the dissent in the Court of Appeals
noted that, subsequent to the trial court's
decision, a jury had found a pervasive and
reckless failure to provide protection from
sexual assault in the intake and protective
5
findings to the facts in Rhodes v. Chapman,
452 U.S. 337 (1981), and noted that there
were "for the most part structural
deficiencies of a permanent nature in
numerous services, programs and in the
physical plant at the SDSP." The trial
court then concluded that "overcrowding, as
evidenced by the extent of double-celling,
substantially contributes to the
substandard living conditions at’ the
SDSP." Cody _v. Hillard, 599 F.Supp. at
1052.
Subsequently, the parties signed a
partial consent decree regarding the
constitutional violations except for
overcrowding and some minor aspects of the
remedial order for medical and psychiatric
care.© The partial consent decree covers
custody areas where double-celling occurr-
ed. See Cody v. Hillard, 830 F.2d at 918
(Lay, CJ, dissenting).
6 The aspects of medical care not
covered by the partial consent decree were
not appealed by respondents.
enn
|
6
the issues of fire safety, ventilation and
heating, kitchen sanitation and safety,
medical and psychiatric care, and access to
the courts. The partial consent decree
recites that its provisions "do substantial
justice and are fairly supported by the
evidence." (R.IX., pp. 135-136) Because of
the entry of the partial consent judgment,
the prison officiaIs waived appeal of the
trial court's findings on these issues.
The trial court then entered a order
allowing the respondents to house prisoners
up to 110% of capacity at the SDSP, thereby
allowing a limited degree of double-celling
to continue indefinitely.
On appeal, a divided panel affirmed
the trial court. The panel held that the
totality of conditions found by the trial
court justified an order limiting the
amount of double-celling, but that the
trial court should reconsider whether the
order limiting double-celling continued to
7
be necessary whenever the prison officials
demonstrated that the other unconstitu-
tional conditions had been corrected. In
reaching its decision, the panel relied on
this Court's decision in Rhodes v. Chapman,
452 U.S. 337 (1981) and the decisions of
the Seventh and Ninth Circuits, respective-
ly, in French v. Owens, 777 F.2d 1250 (7th
Cir. 1985), cert. denied U.m. ~ 207
S.Ct. 77 (1986) and Toussaint v. Yockey,
722 F.2d 1490 (9th Cir. 1984) (affirming
preliminary injunction).
The Court of Appeals en banc reversed,
with three judges dissenting. It concluded
that the trial court had not shown that
elimination of the overcrowding would
alleviate the other unconstitutional
conditions, such as the physical plant
deficiencies or the inadequate medical care
to any perceptible degree. i> a0
concluded that "the present case is light
years removed from the torture, cruel
8
deprivation, and sadistic punishment with
which the Cruel and Unusual Punishments
Clause is concerned." Cody, 830 F.2d at
915.
REASONS FOR GRANTING THE WRIT
I. THE DECISION OF THE EIGHTH
CIRCUIT CREATES A CONFLICT WITH
THE SEVENTH CIRCUIT
The decision of the Court of Appeals
for the Eighth Circuit creates a direct
conflict with the decision of the Seventh
Circuit in French v. Owens, 777 F.2d 1250
(7th Cir. 1985), cert. denied U.S. P
107 S.Ct. 77 (1986). French also involved
prison officials' appeal of a trial court
injunction against double-celling. The
factors considered by the Seventh Circuit
regarding the Indiana Reformatory included
the small cells, the amount of time prison-
9
ers spent in their cells,’ inadequate
ventilation and heat distribution,
sanitation, lighting, lack of hot water,
violence and poor staff supervision, and
poor medical care. In short, it is hard to
imagine a case closer to the facts present-
ed here. The Seventh Circuit followed the
Same procedure utilized by the trial court
here. It compared the Indiana Reformatory
to the prison in Rhodes, and held that on
the facts as found by the trial court, the
order against double-celling should be
affirmed.
The Seventh Circuit in French
interpreted Rhodes to require the trial
court to review the totality of conditions,
and to require a remedy for overcrowding
under circumstances essentially indistin-
guishable from conditions in this case. 777
7 40% of the Indiana Reformatory
prisoners had quite limited time out-of-
cell, fairly comparable to the 200 out of
the 540 SDSP prisoners without jobs. See
599 F.Supp. at 1033.
10
F.2d at 1252.
The defendants in French made an
argument similar to the argument adopted by
the Eighth Circuit: that since there’ were
separate remedies entered for the other
constitutional deficiencies found by the
trial court, the trial court did not need
to enter a remedy against overcrowding.
The Seventh Circuit answered this argument
by deferring to the remedial discretion of
the trial court:
The district court has broad
powers to forge an adequate
remedy to permanently correct 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 remedy past wrongs is broad,
for breadth is inherent in
equitable remedies." Swann _v.
Charlotte-Mecklenberg Board of
Education, 402 U.S. 1, 15, 91
S.Ct. 1267, 1275, 28 L.EBd.2@ 554
(1971). Here, where there was
narrowly \cramped double-celling
as a feature of severely
overcrowded, unsafe and unsani-
tary conditions, we cannot
conclude that the district court
exceeded its broad remedial
power. Under present conditions,
ey
a complete ban on double-celling
is fully justified. However,
since double-celling is not per
se unconstitutional, if the
Indiana prison system eliminates
the severe overcrowding at
Pendleton 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.
777 F.2d at 1253.8
8 See also the Seventh Circuit's
decision in Wellman v. Faulkner, 715 F.2d
269 (7th Cir. 1983) cert. denied 468 U.S.
1217 (1984), affirming a district court
order against overcrowding. In the course
of affirming, the Court of Appeals quoted
the trial court's rationale for its order:
The most serious problem at
the prison is simple overcrowd-
ing. Given the nature and age of
the physical -plant . it is
pervasive and cuts across all
other issues here. Given the
most generous application of
judicial restraint it raises
serious Eighth Amendment
problems. In the context of the
physical plant and the limits on
staffing this overcrowding
constitutes a violation of the
Eighth Amendment. This Court
reaches this conclusion with
greatest reluctance but the facts
compel the conclusion.
12
A «nn tne aes aaa
The approach of the Ninth Circuit in
Toussaint v. Yockey, 722 F.2d 1490 (9th
Cir. 1984) is also fundamentally at odds
with that of the Court of Appeals.?
In Toussaint, the Ninth Circuit
considered an appeal by prison officials
from a preliminary injunction barring
double-celling in administrative segrega-
tion at four California prisons. The
district court found that double-celling
exacerbated the already bad conditions in
the cells and engendered violence, tension
and psychiatric problems. The Court of
Appeals held that these findings distin-
Hendrix v. Faulkner, 525 F.Supp. 435 at 527
(N.D.Ind. 1981), quoted in Wellman _ v.
Faulkner, 715 F.2d at 274.
9 Petitioners do not claim that a
direct conflict exists between the Eighth
and Ninth Circuit because the Ninth Circuit
decision was rendered in an appeal from a
preliminary injunction rather than on an
appeal on the merits. Nonetheless. the
rationale of Toussaint is also the
rationale of French, and fundamentally
inconsistent with the rationale of the
Court of Appeals in this case.
a
die titer tt tet
13
guished the case from Rhodes _v. Chapman,
and "clearly support[ed] the double-celling
portion of the preliminary injunction."
Toussaint, 722 F.2d at 1492. Moreover,
just like the Seventh Circuit in French,
the Ninth Circuit held that the ban on
double-celling was appropriate until the
defendants had cured the other unconstitu-
tional conditions. 722 F.2d at 1492, n.3.
The decision of the Court of Appeals
requires that overcrowding be comparable
to torture before it offends the Eighth
Amendment; this standard is inconsistent
with appellate decisions since Rhodes in
the District of Columbia, 19 the Second
Circuit,11 the Third Circuit,}2 the Fifth
10 Morgan v. District of Columbia,
824 F.2d 1049 (D.C. Cir. 1987) (affirming
jury verdict for prisoner on theory that
severe overcrowding led to a failure to
protect; Whitley v. Albers, 475 U.S. 312
(1986), standard inapplicable to over-
crowding claim).
11 Mitchell v. Cuomo, 748 F.2d 804
(2nd Cir. 1984) (affirming grant of pre-
liminary injunction in prison overcrowding
14
Circuit,13 the Seventh Circuit,+4 the Ninth
Circuit,+>5 the Tenth Circuit,+© and the
case; conditions were insufficient living
area, substandard plumbing facilities and
food services, and an increase in the level
of tension and fights).
12
Inmates of Allegheny County Jail
v. Wecht, 754 F.2d 120 at 127 (3rd Cir.
1985) (affirming trial court's refusal to
modify jail overcrowding order; "(m)ean-
while, by virtue of the ceiling on the jail
population, some alleviation of the
unconstitutional conditions found by the
trial court occurred as a result of the
May 25, 1983 injunction").
13 Ruiz v. Estelle, 679 F.2d 1115,
1146-1148 (5th Cir. 1982), mod. on other
grounds 688 F.2d 266 cert. denied 460 U.S.
1042 (1983) (affirming order that each
dormitory prisoner be provided with at
least forty square feet; further prison
population reductions might be necessary if
other remedial measures did not’ render
conditions constitutional).
14 French v. Owens, supra; Wellman
v. Faulkner, 715 F.2d 269 (7th Cir. 1983)
cert. denied 468 U.S. 1217 (1984).
15 Toussaint v. Yockey, supra.
16 Battle v. Anderson, 708 F.2d
1523, 1525, 1537 (10th Cir. 1983), cert.
denied sub nom. Meachum v. Battle 465 U.S.
1014 (1984) (past conditions in the
Oklahoma prison-~ systen, including
deteriorated physical plant, overcrowding
and lack of adequate medical care, violated
the Eighth Amendment; trial court should
sail
15
Eleventh Circuit.1?? Prison conditions
cases not involving overcrowding from
additional Circuits similarly have not
required a finding of torture as a
predicate to a successful Eighth Amendment
claim. 18
retain jurisdiction long enough to
determine that conditions did not drop
below constitutional minima).
17 Newman v. Graddick, 740 F.2d
1513, 1521 (11th Cir. 1984) (trial court
has authority to order release of prisoners
from facility so overcrowded as to be
unconstitutional; remanded to trial court
for hearing on current conditions).
18 See Santana v. Collazo, 714 F.2d
1172, 1179 (ist Cir. 1983) cert. denied
466 U.S. 974 (1984) (Eighth Amendment draws
its meaning from evolving standards of
decency; isolation confinement of
juveniles remanded to determine if it
violates the Eighth Amendment) and LaFaut
v..Smith, _ F.24 ._. Mo. 86-7162 (4th
Cir.) (Dec. 2, 1987) (reversing trial court
and holding that Eighth Amendment required
that handicapped prisoner be provided with
adequate toilet facilities) (Opinion by
former Justice Powell, sitting by
designation). A copy of the slip opinion
has been filed with the Court. See also
Walker v. Mintzes, 771 F.2d 920, 928 (6th
Cir. 1985) (affirming trial court finding
that one shower per week for administrative
segregation prisoners and three showers per
week for general population prisoners
16
The Court of Appeals for the Eighth
Circuit adopted a radical approach to the
meaning of the cruel and unusual punishment
clause, an approach that has been adopted
by no other Court of Appeals and that is
fundamentally inconsistent with the prison
conditions of confinement decisions of
virtually every other Court of Appeals.
Because the Eighth Circuit decision
radically reinterprets Eighth Amendment
doctrine, and because it directly conflicts
with the decision of the Seventh Circuit in
French v. Owens, supra, petitioners
request that this Court grant a writ of
certiorari.
II. THE DECISION OF THE COURT OF
APPEALS MISCONSTRUES APPLICABLE
PRECEDENT OF THIS COURT
The Eighth Circuit made several
interrelated errors when it reviewed the
trial court's decision in this’ case.
required under the Eighth Amendment).
17
First, it inappropriately applied a
"torture" standard to determine whether or
not an Eighth Amendment violation existed.
Second, it misconstrued the record and
failed to apply the clearly erroneous rule
in its review of the trial court's
findings. Third, it inappropriately
restricted the discretion of the trial
court to determine the scope of a remedy
for unchallenged constitutional violations.
A. The Court of Appeals Erred
A in a orture o
Sadistic Punishment Standard
The Court of Appeals misconstrued
the Eighth Amendment standard formulated by
this Court. | Its misunderstanding of the
constitutional standard appears in the
following passage:
The present case is light
years removed from the torture,
cruel deprivation, and sadistic
punishment with which the Cruel
and Unusual Punishments Clause is
concerned. See Hutto v. Finney,
437 U.S. 678, 681-84 & nn. 3-6,
98 S.Ct. 2565, 2568-70 & nn. 3-6,
57 L.Ed.2d 522 (1978) (conditions
included use of a five-foot long
18
leather strap to whip inmates for
minor offenses, use of a device
to administer "electrical shocks
to various sensitive parts of an
inmate's body," and use of inmate
guards authorized to use deadly
force against "escapees" and who
therefore could "murder another
inmate with practical impunity").
The lack of anything in this
record even remotely approaching
these conditions, or even remote-
ly showing any conditions of
confinement that fall below the
constitutional standards
elucidated in cases such as
Rhodes and Whitley v. Albers, 475
U.S. 312 (1986), reveals the
impropriety of the District
Court's order.
830 F.2d at 915.
In Hutto v. Finney, 437 U.S. 678
(1978), the first case cited by the Court
of Appeals, this Court, far from endorsing
a torture standard as the basis for finding
an Eighth Amendment violation, specifically
endorsed a more encompassing standard:
The Eighth Amendment ban on
inflicting cruel and _ unusual
punishments, made applicable to
the States by the Fourteenth
Amendment, "“proscribe[s] more
than physically barbarous
punishments." Estelle amble,
429 U.S. 97, 102, 97 S.Ct. 285,
290, 50 L.Ed.2d 251. It prohi-
ee eee Tee
19
bits penalties that are grossly
disproportionate to the offense,
Weems v. United States, 217 U.S.
363, 367, 30 &.CU. -544, 549, 54
L.Ed. 793, as well as those that
transgress today's "broad and
idealistic concepts of dignity,
civilized standards, humanity,
and decency." Estelle v.
Jackson, supra, at 102, 97 S.Ct.
at. 240, @uoting Jackson yv.
Bishop, 404 F.2d 571, 579 (CA8
1968). Confinement in a prison
or in an isolation cell is a form
of punishment subject to scrutiny
under Eighth Amendment standards.
437. Bb. G6 665. See also Rhodes v.
eee, 452 U.S. at 345-347 (Eighth
Amendment extends beyond barbarous physical
punishments; Eighth Amendment, construed
under evolving standards of decency,
prohibits the unnecessary and wanton
infliction of pain, and punishments grossly
disproportionate to the crime; conditions
may not deprive prisoners of the minimal
civilized measure of life's necessities).
In Whitley v. Albers, 475 U.S.
312, 106 S.Ct. 1078, 1085 (1986), this
Court held that the proper standard for
determining whether a prison security
20
measure undertaken to resolve a disturbance
violated the Eighth Amendment turned on
whether force was applied maliciously and
sadistically for the very purpose of
causing harm, citing Johnson v. Glick, 481
F.2d 1028, 1033 (2nd Cir.), cert. denied
sub nom. John v. Johnson, 414 U.S. 1033
(1973).
This language, on its face, might
appear to support the adoption by the Court
of Appeals of a "torture, cruel depriva-
tion, and sadistic punishment" test for
Eighth Amendment violations.19
In fact, however, this Court
distinguished the standard for the use of
force during prison disturbances from the
standard for other prison conditions of
confinement challenged under the Eighth
Amendment. This Court specifically
19 Whitley also holds, however,
that an express intent to inflict
unnecessary pain is not required. 106
S.Ct. at 1085.
21
distinguished the standard it applied in
Whitley from the standard applicable to
prison medical care; the Court reaffirmed
that prison medical care, which ordinarily
does not intefere with security, is judged
by the deliberate indifference standard
established in Estelle v. Gamble, 429 U.S.
97, 104 (1976). See Whitley, 106 S.Ct. at
1084.
The provision of adequate
shelter, like the provision of medical
care, does not clash with other governmen-
tal responsibilities. Cf. Whitley, 106
S.Ct. at 1084.29 Indeed, the provision of
20 Whitley is less directly
applicable than either Hutto or Rhodes to
the injunctive challenge in this case.
Both Hutto and Rhodes deal with ongoing
conditions of prison confinement, while
Whitley concerns damages liability for
acts of prison officials in suppressing a
viot. Thus, the central concern in
Whitley is the state of mind of prison
officials. In Hutto, Rhodes and this case,
the state of mind of prison officials is
essentially irrelevant, since the officials
are obviously aware of the» continuing
conditions imposed on _ prisoners. By
analogy, pain and suffering imposed on a
22
adequate and safe shelter, free from un-
constitutional overcrowding, obviously
promotes prison security. The Circuit
Courts of Appeals other than the Eighth
Circuit that have considered the issue
after Whitley have held that the emergency
use of force standard in Whitley does not
apply to overcrowding?! or cell conditions
prisoner by an official's miscalculation in
the use of force is different, under
Whitley, from physical punishments
deliberately imposed on prisoners because
of budgetary shortages. Cf. Youngberg v.
Romeo, 457 8.84 207, 323 (1982)
(institutional professionals have good
faith defense in damages if budgetary
restraints were responsible for actions;
the Court's characterization of the
official's defense as a good faith defense
makes clear that the budgetary restrictions
claim is irrelevant to injunctive actions).
21 See Morgan v. District of
Columbia, 824 F.2d 1049, 1057-1058 (D.C.
Civ: 4907 ba Cf. Pressley v. Hutto, 816
F.2d 977, 979 (4th Cir. 1987) and Noll v.
Carlson, 809 F.2d 1446 (9th Cir. 1987),
both citing Whitley in the course of
applying a deliberate indifference standard
to allegations of a failure to protect
prisoner safety, and reversing dismissal of -
prisoner complaints on this issue.
23
of confinement2? challenges.
The problem with the Circuit's
interpretation of the Eighth Amendment goes
beyond its verbal formulation of the
standard. The Court of Appeals
fundamentally misconstrued the balanced
nature of this Court's Eighth Amendment
approach to prison conditions of
confinement.
For example, the Court of Appeals
quotes out of its full context this Court's
carefully balanced opinion in Procunier v.
Martinez, 416 U.S. 396 (1974). While the
Court of Appeals quotes the Court's
reference to a "hands-off" tradition in
22 See Foulds v. Corley, F.2d
____ -No. 87-2730 (5th Cir.) (Dec. 1, 1987)
(reversing district court dismissal of
prisoner complaint because district court
had applied Whitley malicious or sadistic
intent standard to cell conditions case).
A copy of the slip opinion has been filed
with the Court. See also LaFaut v. Smith,
supra, n.18 (Whitley standard for use of
force does not apply to challenges to
inhumane conditions of confinement).
24
prison litigation,?3 it ends its quotation
23 See Cody, 830 F.2d at 913-914:
Moreover, the federal courts
traditionally
have adopted a broad hands-off
attitude toward problems of
prison administration. In part
this policy is the product of
various limitations on the scope
of federal review of conditions
in state penal institutions.
More fundamentally, this
attitude springs from complemen-
tary perceptions about the nature
of the problems and the efficacy
of judicial intervention. Prison
administrators are responsible
for maintaining internal order
and discipline, for securing
their institutions against
unauthorized access or escape,
and for rehabilitating, to the
extent that human nature and
inadequate resources allow, the
inmates placed in their custody.
The Herculean obstacles to
effective discharge of these
duties are too apparent to
warrant explication. Suffice it
to say that the problems of
prisons in America are complex
and intractable, and, more to the
point, they are not readily
susceptible of resolution by
decree. Most require expertise,
comprehensive planning, and the
commitment of resources, all of
which are peculiarly within the
province of the legislative and
executive branches of government.
For all of those reasons, courts
25
precisely at the point that this Court
rejects the hands-off approach:
But a policy of judicial
restraint cannot encompass any
failure to take cognizance of
valid constitutional claims
whether arising in a federal or
state institution. When a
prison regulation or practice
offends a fundamental constitu-
tional guarantee, federal courts
will discharge their duty to
protect constitutional rights.
416 U.S. at 404-405. See also Turner Vv.
Safley, U.S. , 207 8.Ce. 2ea6 at
2259 (1987):
We begin, as did*the courts
below, with our decision in
Procunier v. Martinez, supra,
which described the principles
that necessarily frame our
are ill equipped to deal with the
increasingly urgent problems of
prison administration and reform.
Judicial recognition of that fact
reflects no more than a healthy
sense of realism. Moreover,
where state penal institutions
are involved, federal courts have
a further reason for deference to
the appropriate prison authori-
ties.
Procunier v. Martinez, 416 U.S. 396, 404-
05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224
(1974) (footnotes omitted).
26
analysis of prisoners' constitu-
tional claims. The first of
these principles is that federal
courts must take cognizance of
the valid constitutional claims
of prison inmates. Id. at 405, 94
S.Ct. at 1807. Prison walls do
not form a barrier separating
prison inmates from the protec-
tions of the Constitution.
The court below also failed to
appreciate that Rhodes _v. Chapman is a
carefully balanced opinion. Rhodes
rejects the argument that double-celling is
a per se violation of the Constitution.
But Rhodes also rejects any suggestion that
overcrowding under all conditions is beyond
the reach of the Constitution.
If Rhodes stood for the principle
that overcrowding under virtually any
imaginable circumstances does not offend
the Constitution, then this Court would not
have needed its careful review of the
record in that case to reach its conclusion
that the overcrowding did not reach
constitutional dimensions.
In this Court's decision in
et PR et as
oe ees wet ee!
eR Ot te
27
Rhodes, it discussed a number of factors in
determining whether double-celling is
unconstitutional, including the length of
time that double-celling continues; the
length of time spent in the cell; the
absence or presence of dayrooms; the
adequacy of physical plant, including
ventilation and heating, sanitation, and
food services; the effect on services; the
existence of systemic failures in medical
care; the level of violence; and the impact
of overcrowding on staffing. In Rhodes
itself, the calculus came down to nothing
more than the length of time that double-
celling continued. Essentially all the
other findings regarding conditions were
favorable to the prison. Because as noted
Supra, overcrowding is not a per se
violation of the Constitution, the Court
rejected the argument that overcrowding
under these circumstances offended the
Eighth Amendment.
28
At the same time, however, the
Court utilized the Rhodes case as a vehicle
to endorse federal intervention where
warranted by the facts:
Courts certainly have a
responsibility to scrutinize
Claims of cruel and _ unusual
confinement, and conditions in a
number of prisons, especially
Older ones, have justly been
described as "deplorable" and
"sordid." Bell _v. Wolfish, 441
U.S. at 562. When conditions of
confinement amount to cruel and
unusual punishment, "federal
courts will discharge their duty
to protect constitutional
rights." Procunier v. Martinez,
416 U.S. 396, 405-406 (1974); see
Cruz _v. Beto, 405 U.S. 319, 321
(1972) (per curiam).
Id. at 352.
In an accompanying footnote, the
Court pointed to cases involving the
Colorado, Louisiana, Mississippi and
Alabama prison systems as illustrative of
appropriate federal court intervention:
Examples of recent federal
court decisions holding prison
conditions to be violative of the
Eighth and Fourteenth Amendments
include Ramos v. Lamm, 639 F.2d
559 (CA10 1980), cert. denied,
Be
ee ee eee
29
U.S. (1981); Williams v.
Edwards, 547 F.2d 1206 (CA5
1977); Gates v. Collier, 501 F.2d
1291 (CA5 1974); Pugh v. Locke,
406 F.Supp. 318 (M.D.Ala. 1976),
aff'd as modified, 559 F.2d 283
(CA5 1977), rev'd in part on
other grounds, 436 U.8. 781
(1978) (per curiam).
ig. at 352, n.i7.
All these cases have in common at
least the following findings that
distinguish them from the _ findings
regarding the Southern Ohio prison at issue
in Rhodes: inadequate physical plant,
systemic medical and psychiatric failures,
and inadequate staffing. All of these same
conditions were found by the trial court to
exist in this case.24
24 As noted by Chief Judge Lay in
dissent, the trial court carefully analyzed
the factors considered by this Court in
Rhodes and, factor by factor, compared the
Court's analysis to its findings in this
case. "The district court wrote some 83
pages carefully analyzing the overall
deficiencies of the South Dakota prison
system. In my judgment, it is one of the
most thorough analytical district court
opinions I have ever read. It holds,
albeit reluctantly, that under the totality
of circumstances the prison system in South
30
The decision of the Court of
Appeals, if allowed to stand, would
withdraw the reach of the Eighth Amendment
from the consideration of the "deplorable"
and "sordid" conditions referred to in
footnote 17 of the Rhodes opinion so that
the Cruel and Unusual Punishment Clause
would bar little more than deliberate
torture.
The Court of Appeals Failed
to Apply the Clearly
Erroneous Standard of Review
The Court of Appeals purported to
hold that the injunctive order entered by
the trial court limiting overcrowding was
not related to curing the constitutional
violations at the prison.
The lack of ventilation and lack
of hot water exacerbated the health risks
from overcrowding. See 599 F.Supp. at
1033-1034. Fire safety hazards such as
Dakota is unconstitutional as violating the
eighth amendment." 830 F.2d at 917, n.3.
ee ee
31
lack of sufficient exits (id. at 1029) and
jerry-rigged wiring (id. at 1030) are
obviously exacerbated by overcrowding.
Shortages of medical and psychiatric staff
led to the use of inmate nurses (id. at
1035-1038) and lack of treatment’ for
mentally ill prisoners, so that their
physical health deteriorated (id. at 1042);
such shortages are also obviously
exacerbated by the overcrowding. The trial
court also found the prison "grossly
understaffed"; the incidents of violence
and the pervasive and reckless failure of
the state to provide protection from sexual
attack in two of the double-celled areas?°
have obvious relation to the _ staffing
shortages. Stopping double-celling in
these areas constituted an appropriate
remedial step to reduce that risk.
Under these circumstances, the
25° See 830 F.2d at 918 (Lay, CJ,
dissenting).
32
baituwe of the Court of Appeals to defer to
the trial court's finding that the extent
of double-celling substantially contributed
to the substandard living conditions at the
prison violated the "clearly erroneous"
standard of review*® required under
F.R.Civ.P. Rule 52(a).
In Anderson v. City of Bessemer
City. N.C... 9.8. , 105 S.Ct. 1504 at
1512 (1985), this Court held that the
"clearly erroneous" standard applies
even when the district court's
findings do not rest on credi-
bility determinations, but are
based on physical or documentary
evidence or inferences from other
facts.
26 The respondents conceded in the
Court of Appeals that they could not
succeed without a finding by the Court of
Appeals that the trial court's findings
were clearly erroneous. Respondents' Reply
Brief, p.10. The Court of Appeals made no
such finding. Nor could it, in view of the
respondents' admission in the partial
consent decree that remedies for the other
constitutional violations were "fairly
supported by the evidence." See p.6, supra.
33
The rationale for deference
to the original finder of fact is
not limited to the superiority of
the trial judge's position to
make determinations of credibili-
ty. The trial judge's major role
is the determination of fact, and
with experience in fulfilling
that role comes expertise. Dup-
lication of the trial judge's
effort in the court of appeals
would very likely contribute only
negligibly to the accuracy of
fact determination at a huge cost
in diversion of judicial
resources.
Anderson v. City of Bessemer
City, N.C. holds that the clearly erroneous
standard of review governs not just subsid-
iary findings of fact but ultimate findings
based on inferences from the subsidiary
findings. See, e.g., 105 S.Ct. at 1513:
Based on our own reading of
the record, we cannot say that
either interpretation of the
facts is illogical or implaus-
ible. Each has support in
inferences that may be drawn from
the facts in the record; and if
either interpretation had been
drawn by a district court on the
record before us, we would not be
inclined to find it clearly
erroneous.
See also Pullman-Standard v. Swint, 456
34
U.S. 273 (1982).
In this case, the Court of
Appeals improperly ignored the trial
court's findings of fact and substituted
its own factual conclusions in violation of
Anderson and Rule 52(a).
C. The Court of Appeals Failed
to Apply Hutto _v. Finney
Another fundamental failure of
the Court of Appeals was its failure to
give appropriate deference to the trial
court's discretion to order an appropriate
remedy. Here that failure to defer to the
trial court is particularly baffling
because the respondents specifically admit-
ted in the partial consent decree that the
evidence supported the need for remedies
for -the deficiencies in fire _ safety,
ventilation and heating, kitchen health and
safety, and medical and psychiatric care.
Because of the respondents' admissions of
these violations, the Court of Appeals
should have recognized the discretion of
a ot Ur NE
35
the trial court, exercised in light of its
close familiarity with the case, to
require a limitation on overcrowding at
least until the other’ constitutional
violations were addressed.
The failure of the Court of
Appeals to defer to the trial court ignored
this Court's decision in Hutto v. Finney,
437 U.S. 678 (1978). In that case, like
this one, the order on appeal was one part
of a broader remedial order directed at
unconstitutional prison conditions. In
Hutto, the particular order appealed by
prison officials was an order limiting
isolation confinement in the Arkansas
prison system to thirty days:
The length of time each
inmate spent in isolation was
simply one consideration among
many. We find no error in the
court's conclusion that, taken as
a whole, conditions in the
isolation cells continued to
violate the prohibition against
cruel and unusual punishment.
SR
36
The order is supported by
the interdependence of the
conditions producing the
violation. The vandalized cells
and the atmosphere of violence
were attributable, in part, to
overcrowding and to deep-seated
enmities growing out of months of
constant friction. The 30-day
limit will help to correct these
conditions.
x «
Finally, the exercise of
discretion in this case is
entitled to special deference
because of the trial judge's
years of experience with the
problem at hand and his
recognition of the limits on a
federal court's authority in a
case of this kind.
(footnotes omitted) 437 U.S. at 687-688.
The Court of Appeals particularly
ignored the admonition of this Court in
Hutto that temporary prophylactic reme-
dies?’ were within the trial court's
27 In July, 1987, the trial court
held a six-day hearing on compliance with
the partial consent decree. The petition-
ers presented evidence of violations in
every major area. Subsequently, the
parties signed a new remedial stipulation
appointing an expert panel. Petitioners
anticipate that monitoring of the new
remedial stipulation will not occur for
37
discretion in order to cure the underlying
constitutional violations:
As we explained in Milliken
v. Bradley, 433 U.S. 267, 281, 97
$.Ct. 2749, 2757, 53 L.Ed.2d 745,
state and local authorities have
primary responsibility for curing
constitutional violations. oe
however [those] authorities fail
in their affirmative obliga-
tions... judicial authority may
be invoked.' Swann v. Charlotte-
Mecklenburg Board of Education,
402 Wees 2, 129, Fs B.Ct. i267, 28
L.Ed.2d 554. Once invoked, ~the
scope of a district court's
equitable powers to remedy past
wrongs is broad, for breadth and
flexibility are inherent in
equitable remedies.'" Ibid. In
this case, the District Court
was not remedying the present
effects of a violation in the
past. It was seeking to bring an
ongoing violation to an immediate
halt. Co-operation on the part
of Department officials and
compliance with other aspects of
another year or more. The respondents have
a history of not fulfilling prior consent
decrees. For example, the respondents had
ignored a previous consent decree, Crowe v.
Erickson, Civil No. 72-4101 (D.S.D.) (May
eee see (Agreement in Settlement and
Judgment Confirming Settlement), that
required the elimination of the use of
inmate nurses to perform x-rays. This
previous recalcitrance is another reason to
defer to the trial court's judgment regard-
ing appropriate remedial measures.
38
the decree may justify elimina-
tion of this added safeguard in
the future, but it is entirely
appropriate for the District
Court to postpone any such deter-
mination until the Department's
progress can be evaluated.
aa. at 677, n.9.
In view of Hutto, the Court of
Appeals should have recognized the
discretion of the trial court to limit
overcrowding until the unchallenged
constitutional deprivations were addressed.
The failure of the Court of Appeals to
follow Hutto also requires reversal by this
Court.
In_ short, the decision of the
Court of Appeals was flawed on every level
of legal analysis. It ignored the trial
court's role in finding facts, misconstrued
the applicable Eighth Amendment standard,
and failed to defer to the discretion of
the trial court in formulating an éeuttenie
remedy for the other admitted
constitutional violations. For all these
39
reasons,
certiorari.
this Court should grant a writ of
CONCLUSION
For the above reasons, the petitioners
request that this Court grant a writ of
certiorari to review the decision of the
Court of Appeals for the Eighth Circuit.
Respectfully submitted,
ELIZABETH ALEXANDER
(Counsel of Record)
ALVIN J. BRONSTEIN
NATIONAL PRISON PROJECT
OF THE AMERICAN CIVIL
LIBERTIES UNION
FOUNDATION
1616 P Street, N.W.
Washington, D.C. 290036
(202) 331-0500
DOUGLAS CUMMINGS
CUMMINGS LEGAL
CLINIC
617 West 11 Street
Sioux Falls, S.D.
57104
(605) 332-8585
WILLIAM FROKE
EAST RIVER LEGAL
SERVICES
335 No. Main Ave.
Suite 300
Sioux Falls, S.D.
57102-0305
(605) 336-9230
Attorneys for Petitioners
Date: 1988
January 4,
United States District Court
District of South Dakota
Southern Division
Donald J. Porter
U.S. District Judge
Rm. 413 - U.S. Courthouse
Pierre, South Dakota 57501 May 31, 1984
(Incorporating April 30 and
May 22, 1984 Memorandum
Opinion and Supplemental
Opinion)
Elizabeth Alexander
1346 Connecticut Avenue, NW FILED
Suite 402 May 31, 1984
Washington, D.C. 20036 Wiliam F. Clayton,
Clerk
William D. Froke kmt
EAST RIVER LEGAL SERVICES
329 North Phillips Avenue
Sioux Falls, South Dakota 57012
Douglass P. Cummings, Jr.
671 West 11th Street
Sioux Falls, South Dakota 57104
Attorneys for Plaintiffs
Honorable Mark V. Meierhenry
Attorney General, State of South Dakota
Mark W. Barnett, and
Richard Dale
Special Assistant Attorneys General
State Capitol
Pierre, South Dakota 57501
Attorneys for Defendants
RE: CIVIL NO. 80-4039
WILLIAM R. CODY, Individually and on behalf of all other per-
sons similarly situated, Plaintiffs
vs.
CAROLE HILLARD, President of the Board of Charities and Cor-
rections; FRANK BROST, Vice President; TED SPAULDING,
Member; D.A. GEHLHOFF, Member; LYLE SWENSON, Member;
JAMES SMITH, Executive Secretary; HERMAN SOLEM, Warden
of the South Dakota State Penitentiary; sued individually and in their
official capacities, Defendants.
Dear Counsel: MEMORANDUM OPINION
Plaintiff William Cody represents a class of persons who are
now or who will be incarcerated in the South Dakota State |
Penitentiary at Sioux Falls, South Dakota or in the Women’s
Correctional Facility at Yankton, South Dakota.! The plaintiff
class challenges the constitutionality under the first, fifth, sixth,
eighth and fourteenth amendments to the United States Con-
stitution of numerous conditions and practices of confinement
primarily at the South Dakota State Penitentiary (SDSP) and
secondarily at the Women’s Correctional Facility. Plaintiffs pro-
ceed under 42 U.S.C. § 1983? and this Court exercises sub-
ject matter jurisdiction under under 28 U.S.C. § 1343(a)(3).
Defendants Hillard, Brost, Spaulding, Gehlhoff, Swenson
and Smith are officers or members of the Board of Charities |
and Corrections of South Dakota, charged with the administra- 3
tion, supervision and maintenance of the SDSP and the Women’s
Correctional Facility. Defendant Herman Solem is the Warden
of the SDSP. Plaintiffs request both declaratory and injunc-
tive relief.
This action was tried to the court seven days in June, June
7-10, and 13-15) and four days in December (December 13-16), |
1983, in Sioux Falls, South Dakota. The case has been fully ,
' By stipulation of the parties this court by order filed August 23,
1982 certified plaintiffs’ cause as a class action.
2 Although plaintiffs also alleged causes of action under 42 U.S.C.
§§ 1985, 1988, they have not pursued these alternative causes and the
court finds it unnecessary to consider them.
3a
briefed by the parties and extensive proposed findings of fact
have been submitted. At trial plaintiffs called four expert wit-
nesses, and defendants three such witnesses.
The following is a brief summary of the qualifications and
areas of testimony of each of the plaintiffs’ experts:
1. Robert W. Powitz, Ph.D., Environmental Health,
is the Director of Environment Health and Safety
at Wayne State University in Detroit, Michigan. He
is a licensed sanitarian in the states of New Jersey
and Michigan, and is an accredited sanitarian by the
National Environmental Health Association and by
the American Public Health Association entitled
‘‘Standards for Health Services in Correctional In-
Stitutionals.’’ He inspected the SDSP on May 16,
1983, viewing among other things the individual cells,
the food service areas and the vocational shop areas.
2. Ronald Sable, M.D.., is board certified in internal
medicine. He is currently the attending physician in
internal medicine at Cook County Jail. He reviewed
and inspected the medical, dental and psychiatric and
psychological policies and practices at the SDSP one
day in May, 1983.
3. Gordon Kampka is the Vice-President of Abraxas
Associates, Inc., a management consultant firm in
Fallston, Maryland. He has studied, lectured and
written in the fields of criminal justice and public ad-
ministration; he is a contributing editor to the Jour-
nal of Prison Health. He has consulted the National
Institution of Corrections, the National Prison Over-
crowding Project and several state and local correc-
~ tional systems. He was formerly employed as Mary-
land’s Secretary for Public Safety and Correctional
Services and for approximately six years before that
as Warden of the Baltimore City Jail. He conducted
a general inspection of the SDSP on June 8, 1983.
The
4a
4. Lloyd T. Baccus, M.D., is an Assistant Professor
of Psychiatry at Emory University School of
Medicine in Atlanta, Georgia. He also has a private
practice with emphasis in forensic psychiatry. He has
served and continues to serve as a consultant to
several state corrections systems in the evaluation
and administration of mental health care services.
He is currectly involved in developing with other ex-
perts a mental health plan for the Texas Corrections
System — this as a result of a class action suit
brought on behalf of more than 33,000 inmates
challenging the conditions of confinement in various
institutions operated by the Texas Department of
Corrections. (see Ruiz v. Estelle, 679 F.2d 1115 (5th
Cir. 1982), cert. denied 103 S.Ct. 1438 (1983)). He
inspected the mental health care services and policies
at the SDSP for approximately one day in
September, 1983.
defendants called the following experts:
1. Bonnie C. Norman, M.S. in Public Administra-
tion and specializing in hospital administration, is cur-
rently employed and has been for more than seven
years as the Director of Medical Services for the
Los Angeles Sheriff's Department. Her primary
responsibility in this position is to direct health care
services in correctional institutions. She has authored
articles on health care services in corrections
systems, and has participated in drafting, revising
and/or auditing state and national standards for the
administration of health care services in corrections
systems. She inspected the health care services and
policies at the SDSP for approximately two days in
May, 1983, and one day in December, 1983.
2. Winston Satran is the Warden of the North Dakota
State Penitentiary in Bismarck, North Dakota. He
ee eee
- em.
Sa
has been employed in various correctional positions
for approximately sixteen years. He has attended
several seminars respecting corrections administra-
tion and as a part of his training and experience he
has visited numerous state and federal prison
facilities. He toured the SDSP for approximately one
and one-half days in May, 1983 and again for approx-
imately one and one-half days in December 1983.
3. William R. Gore is a sanitarian from Sacramento,
California. For approximately eight years he has
served as Program Supervisor, Office of Local En-
vironmental Health Programs, Department of Health
Services, State of California. In that position he is
in charge of conducting environmental health surveys
for numerous state institutions, including nearly all
of California’s correctional institutions. He has been
involved over the years with formulating and apply-
several national and state standards associated with
environmental health aspects of correctional institu-
tions in California. He toured the SDSP, focusing par-
ticularly on environmental health concerns raised by
the plaintiffs, for approximately two days in Decem-
ber 1983.
In addition to expert testimony, the court had the benefit
of sworn testimony from several corrections officers at the
SDSP, including the Warden, other staff and also inmates. The
Court also received in evidence 131 exhibits. One of these
exhibits, entitled the ‘‘South Dakota Penitentiary Study’’,
(hereafter cited ‘‘SDSP’’ Study’’), was particularly helpful in
substantiating a number of the court’s findings of fact. This
comprehensive survey, published in 1981, identifies deficien-
cies in the physical plant as well as in several practices, pro-
grams and services at the SDSP. The survey was conducted
primarily by a team of professional consultants from Sioux
Falls, South Dakota, Chicago, Illinois and Omaha, Nebraska,
6a
with the assistance of members of (1) the South Dakota Board
of Charities and Corrections; (2) an advisory committee com-
posed of various state public officials such as the attorney
general and several legislators; (3) the SDSP staff including
the Warden; and (4) the Division of Law Enforcement As-
sistance. Appendix A to the SDSP Study contains fifty-eight
unnumbered pages of evaluations performed by the consultants
on specific aspects of confinement at the SDSP. Included in
these evaluations are the findings and conclusions of the con-
sultants based in part on the degree of compliance with the
‘‘most important’ correctional standard promulgated by two
nationally-recognized associations of experts in the field of cor-
rections: the American Correctional Association (ACA) and
the American Public Health Association (APHA), SDSP Study
at 79-80. The Study further presents potential solutions, both
current and long-term, to alleviate these various deficiencies,
and also identifies the most cost-effective options available to
the State.
I. BACKGROUND INFORMATION
Portions of the SDSP physical plant were constructed more
than one hundred years ago. There have been a number of
improvements and renovations over the years. There are cur-
rently a total of three cell blocks at the SDSP: West Hall, which
contains 140 cells; East Hall, which contains 200 cells; and
Federal Hall, which contains 100 cells. At the time of trial on
December 15, 1983, there were 538 inmates living inside the
three cell halls.
Plaintiffs in their complaint allege that (1) the conditions of
their confinement at the SDSP amount to cruel and unusual
punishment in violation of the eighth and fourteenth amend-
ments; (2) as to those inmates housed in protective custody,
the conditions of their confinement not only amouuit to cruel
Ta
and unusual punishment but also deny them equal protection
of the laws as applied to other inmates at the SDSP — in viola-
tion of the fourteenth amendment; and (3) inmates at the SDSP
and at the Women’s Correctional Facility are denied mean-
ingful access to the courts, as guaranteed by the Constitu-
tion. Specifically, as to the conditions of their confinement at
the SDSP, the plaintiff class asserts that (1) various en-
vironmental conditions exist in the cell halls, such as inade-
quate fire protection, inadequate ventilation and heating, lack
of hot running water and inadequate water temperature con-
trol, insufficient lighting, and inadequate electrical wiring; (2) a
number of inmates housed in protective custody and a number
of newly admitted inmates housed in the intake area are double-
celled; (3) the medical and dental care is inadequate; (4) the
mental health care is inadequate; (5) a number of inmates in
the general population are double-celled; (6) various en-
vironmental conditions exist in the kitchen and food storage
area, such as an improper milk pasteurization process, im-
proper food storage, a potential for back siphonage, an un-
safe kitchen elevator, and several other unsanitary and im-
proper conditions; and (7) various environmental conditions
and practices exist in the shops, vocational programs, and other
areas, such as inadequate ventilation, lighting and fire protec-
tion, and unsanitary practices and conditions.
Il. FINDINGS OF FACT
A. ENVIRONMENTAL CONDITIONS — CELL HALLS
1. Fire Safety
The SDSP provides inadequate on-site fire pro-
tection to inmates housed in West, East and
Federal Halls. At present there exists in all three
halls: an insufficient number of fire safety exits
including exit stairs; insufficient night staff to ade-
quately respond to an emergency fire; no remote
-_
8a
automatic unlocking devices to simultaneously
release inmates from their individual cells; no
compartmentalization of these halls by the use of
smoke detectors; an absence of a fire alarm
system, smoke detectors, sprinklers, emergency
lighting, and exit stairs encased with fire-
resistant materials. In addition, East Hall is ser-
viced by plastic pipe in the plumbing chases,
which pipe would emit toxic vapors in the event
of exposure to fire. Inadequate ventilation sys-
tems, especially existing in West Hall, compound
the aforementioned hazardous conditions. In
most prison fires, exposure to toxic vapors and
smoke, rather than to the fire itself, pose the
greatest threat to the lives of inmates.
. Ventilation and Heating System
a. Inadequate ventilation poses a severe health
problem. Adequate ventilation constitutes an im-
- portant environmental factor relating to degrees
of comfort and disease prevention.
b. Ventilation in the individual cells in West Hall
is virtually non-existent. In East and Federal
Halls, ventilation through each cell is generally
inadequate. However, the air moves on an even
plane from a small vent located on the bottom
of the back wall of each cell toward the front of
the cell. This lack of air movement poses a health
hazard to inmates in the event of a fire. In addi-
tion, insufficient ventilation exists in the West
Hall shower area.
c. In each of the three halls there exists one heat
source for the entire cell block. Heat is pumped
into the cells through the baseboards located on
the bottom tier of cells. The heat then rises
9a
through the upper tiers, creating generally cold
temperatures on the upper tiers. This system
inadequately distributes warm air through the cell
halls and results in generally uncomfortable liv-
ing conditions. Inadequate ventilation in the in-
dividual cells compounds these conditions.
. Overhead Lighting and Electrical Wiring
a. In all three halls the cells are poorly lighted.
An overhead fluorescent bulb in each cell fur-
nishes insufficient light in order for inmates to
conduct ordinary cell activities. Although inmates
are issued small plug-in lamps to supplement the
otherwise available light, there still exists inade-
quate illumination for the entire cell. The lack of
adequate overhead lighting compounds the safety
hazards due to faulty electrical wiring in the cells.
b. There exists in many cells a significant amount
of ‘‘jerry-rigged”’ electrical wiring; i.e., wiring
fashioned by the inmates for their own use. This
poses a Safety and fire hazard to the inmates.
c. In large part, the electrical wiring in the cells
is substandard and inadequate. The electrical
Outlets in many cells, particularly in West Hall,
are improperly grounded, thereby presenting a
safety hazard to the inmates.
. Hot Water and Water Temperature Control
System
a. Basic personal hygiene requires that hot
water be available for washing and cleansing.
b. No running hot water is available to inmates
in cells in Federal Hall. Rather, hot water is cur-
rently delivered to these cells once each day by
inmate runners who circulate through the Hall.
10a
c. The hot water temperature in the individual
cell wash basins in East Hal measures 140°
Farenheit, presenting potential hazards to in-
mates such as burning and scalding. The sinks
in West and East Hall cells lack an automatic mix-
ing valve to deliver water at reasonably comfor-
table temperatures. Running water in these sinks
cannot be blended manually in the spigot prior
to delivery.
B. ENVIRONMENTAL CONDITIONS — KITCHEN AND
FOOD STORAGE AREA
1. Milk Pasteunzation Process
a. The SDSP kitchen is equipped with a batch
pasteurizer to purify milk. Pasteurization serves
to eliminate harmful bacteria and other disease-
carrying organisms from the milk.
b. The consumption of improperly pasteurized-
milk can result in serious disease. Proper pas-
teurization requires that the temperature read-
ings and the length of time associated with each
pasteurization be recorded and regularly moni-
tored by those in charge.
c. On several random occasions milk samples
taken from the SDSP batch pasteurizer were |
determined bacteriologically unsatisfactory by the
South Dakota State Chemical Laboratory. More-
over, no temperature and time of duration read-
ings associated with each pasteurization are re-
corded and monitored by those in charge. These
conditions present a health hazard to the inmates.
2. Food Storage
a. Proper storage of food serves to prevent
spoilage and the spread of food borne diseases.
lla
Proper storage is particularly important where
the same foods are being prepared for a large,
contained population, such as for inmates at the
SDSP.
b. The lower level (basement) food storage area
stocks primarily canned goods (single service ar-
ticles) but also other food stuffs. Some of these
items are stored under drain pipes which have
the potential for breaking or cracking — thereby
causing unsanitary spillage over and around these
stored foods. It was evident to defendants’ en-
vironmental health expert, Mr. Gore, upon his
tour of the area, that such breaking or cracking
had occurred in the past. At the time plaintiffs’
environmental health expert, Dr. Powitz, in-
spected this area on May 16, 1983, one of these
drain lines had in fact broken, causing waste-
water to leak out. Drip troughs are presently in
place in an attempt to prevent spillage over these
stored food items. However, in the event of a
break in a pressure-flow-type pipeline, the poten-
tial for contamination of these food articles is
great. Under these conditions the lower level
food storage area provides inadequate protec-
tion against contamination and therefore presents
a health hazard to the inmates.
c. When Dr. Powitz toured the lower level
storage area, he saw one dead mouse and fresh
mouse droppings along one wall, indicating not
only an active mice infestation but also infrequent
cleaning in this area. Defendants’ environmen-
tal health expert, Mr. Gore, also noted mouse
droppings in this area upon his tour in December,
1983.
d. Food storage in the kitchen area is deficient.
Basic refrigeration space for short-term food
12a
storage is inadequate. The freezer space is also
inadequate to meet the needs of the total inmate
population. The kitchen is not equipped with a
walk-in freezer. The existing freezer space pre-
sents sanitation problems. The freezer is infre-
quently cleaned and is overloaded with food
items.
Dr. Powitz inspected the freezer and found some
food articles stored on the floor of the freezer,
thereby subjecting these foods to condensation, .
dripping, splashing and dirt.
d. The methods of storing meat in the kitchen
area are improper in some respects. During Mr.
Gore’s inspection of the refrigerated meat
storage box in the kitchen, he found raw kidneys
and other uncooked foods placed aboved un-
covered cheese slices. It is improper to store
raw or uncooked foods above uncovered ready-
to-serve, prepared foods; storage in this man-
ner subjects these food to potential contamina-
tion and adulteration.
3. Kitchen Elevator
a. The kitchen elevator is outdated and unsafe.
The heavy metal doors of the elevator must be
manually opened and closed by the passenger.
These doors are not equipped with handles on
the inside, but only on the outside. Therefore, |
in order to operate the elevator, a passenger ‘|
must stand inside and at the same time reach out-
side the elevator to close the doors.
b. There have been two reported incidents of
injuries incurred by inmates who have slammed
their hands in between these elevator doors in
an attempt to operate the elevator.
13a
4. General Kitchen Practices and Conditions
a. Ventilation in the kitchen areas is makeshift
and inadequate. Stand-up fans are used to dis-
tribute air in the closed area. The kitchen hoods
lack an ancillary fire protection system.
b. Many pots and pans and a majority of dining
utensils are in a state of disrepair to the extent
that they cannot be properly cleaned and
sanitized.
c. The kitchen oftentimes serves as a walk-
through area for inmates, particularly those pro-
ceeding to the infirmary. The use of the kitchen
in this manner is both unsanitary and a bad prac-
tice. Inmates and other plainclothes people may
in this way expose the kitchen area to germs,
dirt and viruses. This increases the potential for
contacting and spreading communicable diseases
among the inmates.
It is also possible for inmates in the general
population to sabotage the area by placing, for
example, foreign matter in foods ultimately con-
sumed by inmates and staff.
d. Hair restraints (i.e., hair nets) or hair cover-
ing of some sort for the kitchen staff, along with
proper footwear are necessary to. maintain a
sanitary environment:in the kitchen area.
e. The ice machine is inadequately maintained
and serviced. This causes a build-up of mold,
minerals and stains on the interior walls of the
machine, resulting in unsanitary conditions.
f. At the time Dr. Powitz visisted the kitchen
area, frozen fish were being thawed in still water
rather than for example, under running water.
l4a
This is an improper method for defrosting frozen
foods.
g. The kitchen area is not equipped with a
separate lounge for the inmate kitchen staff. As
a result, the staff use the kitchen area as a
lounge. This is an unsanitary practice in a food
preparation area.
h. The dishwashing area is characterized by ex-
cessive noise, some of which cannot be avoided.
i. At the time of Dr. Powitz’ tour of the kitchen
area, the temperature in the milk holding box
registered 48° Fahrenheit. This temperature is
excessive for storing a potentially hazardous food
product such as milk.
j. Overall, the kitchen area is maintained in a
sanitary condition.
C. ENVIRONMENTAL CONDITIONS—SHOPS AND
VOCATIONAL PROGRAMS
a. In the welding shop, exhaust ventilation is in-
adequate in the midshop welding booths. Toxic
fumes produced from the welding benches are
directed up into the welder’s breathing zone.
There is no scavenger ventilation system to
remove such fumes from the air at their source.
This presents a health hazard to the inmates.
b. In the furniture upholstering shop, particularly i
in two spray booths, the ventilation is inadequate
to remove fumes toxic to the liver.
c. Several drums containing a considerable
amount of solvent are improperly stored in the
sign shop. These drums are not kept in a storage
cabinet or room designed specifically for the
Palatine ie A lie es Now oie at ms illest sehen 8
15a
storage of solvent — thus creating a fire hazard
to the inmates.
d. In the barbershops there are no sanitizers us-
ed on the combs, brushes and clippers and no
single service neck papers. These unsanitary
conditions can cause skin infections.
e. In the book bindery. tag and sign shops there
are no safety or lock-out devices on any of the
presses and paper cutters. This presents a safety
hazard to the inmate workers.
f. One inmate worker injured his hand when the
printing machine in the print shop was unex-
pectedly engaged—even though the safety shield
on the machine was in place and this was design-
ed to prevent operation of the machine.
g. Several table saws and other power tools in
the carpentry shop lacked adequate devices to
collect and remove sawdust from the air.
D. ENVIRONMENTAL CONDITIONS—OTHER AREAS
a. The lighting in the underground corndor lead-
ing to the recreation building is inadequate.
b. Several unsanitary conditions and practices ex-
ist in the infirmary. Transfer forceps are improp-
erly stored in a disinfectant solution which has
the potential for contamination. There are no
vacuum breakers attached to the x-ray developer
and the washtub in order to prevent back siphon-
age flows into the regular water system. A deep
fat fryer is sometimes used in the infirmary with-
out proper ventilation or fire prevention equip-
ment.
16a
E. CONDITIONS OF CONFINEMENT—DOUBLE-
CELLING
1. General ~
a. The general inmate population at the SDSP
has increased dramatically since 1974. In Oc-
‘tober, 1983 the inmate population reached an all-
time high of approximately 560 men housed in-
side the walls of the prison. Taking all three cell
halls, the SDSP is equipped with a total of 440
cells.
b. At the time of trial on December 15, 1983,
there were 538 inmates living inside the three
cell halls. Ninety-eight cells (196 inmates) were
doubled up. Therefore, as of December 15,
1983, the SDSP was over physical capacity by
ninety-eight inmates (approximately 22 per cent).
c. Approximately seventy-five to eighty per cent
of the inmate population at the SDSP are serv-
ing sentences for non-violent crimes. Approx-
imately fifty-five per cent of the population are
first offenders.
d. West Hall contains 140 cells which each meas-
ure approximately sixty-three square feet in
space. East Hall contains 200 cells, each meas- *
uring approximately fifty-six square feet in space.
Federal Hall contains 100 cells, each measuring
approximately fifty-five square feet in space.
te a Lia Re, a a 8. ie
2. Impact of Double-Celling
a. Double-celling, depending on such factors as
the extent and duration of this practice, the size
of the dobule cell, and the amount of out-of-cell
time afforded these inmates, places stress on
both staff and inmates as well as on existing pro-
grams, services, equipment and the physical
17a
plant at the SDSP. Double-celling over time has
a negative impact on all programs and services,
including medical, food and laundry services,
recreation, and school programs. Double-celling
over time also affects the level of tension among
inmates and staff in a prison.
b. Double-celling at the SDSP has resulted in
crisis management with respect to the
maintenance of ancillary support facilities such
as food services, laundry services, medical ser-
vices, plumbing and electrical wiring.
c. Double-celling at the SDSP has resulted in an
overloading of services such as the work, recrea-
tion and school programs.
d. The SDSP administration has attempted to
reduce the negative impact of double-celling by
expanding the amount of out-of-cell time afford-
ed inmates by making a reasonable effort to
double-cell only those inmates who volunteer to
live with another inmate in the same cell, and
by increasing the placement of inmates: (1) into
trustee status in a detached unit of SDSP, located
immediately outside the walls of the prison,
known as the ‘‘Cottage’’; (2) into trustee status
in a unit located at the Human Services Center
in Yankton; (3) into a detached dormitory, out-
side the walls of the prison, known as the ‘‘West
Farm’’; (4) into public service restitution pro-
grams in various communities in South Dakota.
There are presently approximately 220 to 230
inmates housed outside the walls of the prison.
e. The SDSP has also attempted to place in-
mates in work release or school release pro-
grams throughout the state. There are approx-
a
18a
imately 220 to 230 inmates housed outside the
walls of the prison.
f. There is a relatively low level of tension bet-
ween inmates and staff at SDSP. Since the ad-
vent of double-celling in approximately the first
part of 1981, there has been one recorded in-
stance of a riot involving approximately twenty
persons in November, 1981, and approximately
sixty incidents (recorded in the disciplinary logs
for the period January 1, 1981 to June 30, 1983)
of fighting or assaults between inmates and/or
inmates and staff.
g. The SDSP is grossly under-staffed. The level
of prison staff has not increased in proportion to
the level of the general inmate population.
3. Availability of Jobs
a. There are approximately 200 inmates in the
general population inside the walls of the SDSP
who are without jobs. For various reasons, ap-
proximately 30 to 40 of these inmates do not wish
to work outside of their cells. That leaves ap-
proximately 150 inmates who want to work, but
for whom no jobs are available.
b. An over-capacity inmate population at the
SDSP has a negative impact on the availability
of jobs for a significant number of inmates.
4. Public Health Impact of Double-Celling
a. Double-celling at the SDSP creates a serious
potential both for injuries and the spread of com-
municable diseases among the inmates. In order
to reduce this potential public health problem it
is a generally recognized standard that each in-
mate should be accorded a minimum of 60 square
19a
feet of living space. Double-Celling at the SDSP
presently precludes 196 inmates (representing
approximately 36 per cent of the total inmate
population) from attaining this standard.
b. The majority of double-celling at the SDSP
exists in the West Hall cells, which lack adequate
ventilation (see Findings of Fact No.1 II(A)(2)
supra.) There are also a number of double cells
in Federal Hall in which no running hot water is
available to the inmates.
c. There is an increased potential for inmates
who are double-celled to contact upper respira-
tory diseases.
d. In 1983, two inmates housed in the double-
celled areas were treated for a communicable
disease. One of these inmates was treated for
pediculosis. Another inmate was diagnosed, after
approximately two months of medical attention
at the SDSP, by an outside dermatologist as hav-
ing contracted scabies. By the time he was refer-
red to the dermatologist, this inmate had a rash
covering all areas of his body. In response to this
diagnosis for scabies, only those individuals hous-
ed on this inmate’s same tier were treated pro-
phylactically for scabies.
5. Double-Celling in the Intake Area
a. The intake area at the SDSP where newly ad-
mitted inmates are housed, has a capacity of
seventeen cells. On occasion as many as seven
or eight of these cells are doubled up. Newly ad-
mitted inmates may spend from eight to fourteen
days in this area.
b. Double-celling in the intake area has occur-
red and will likely occur in the future.
20a
c. The SDSP administration makes reasonable
efforts: to double-cell new admittees who are
compatible with one another; to provide these
inmates a sufficient amount of out-of-cell time in
orientation and training activities; and to reduce
the total amount of time these inmates are
double-celled.
d. From a public health standpoint, it is inap-
propriate to double-cell new admittees. The po-
tential for inmates to contract contagious disease
is heightened because these inmates have not
been medically screened prior to entering this
area. Double-celling new admittees also impedes
legitimate correctional objectives in successful-
ly orienting and screening new admittees.
6. Double-Celling in the Protective Custody Area
a. Out of approximately 45 inmates housed in
protective custody, 22 inmates are double-celled.
b. The practice of double-celling inmates hous-
ed in protective custody at the SDSP is inap-
propriate and without correctional justification.
These inmates need protection not only from
other inmates in the general pcpulation but also
from other protective custody inmates. The
negative impact attributed to double-celling in
other areas of the institution is exacerbated in
the protective custody area due to the inordinate-
ly limited out-of-cell time available to these in-
mates.
21a
F. CONDITIONS OF CONFINEMENT — PROTECTIVE
CUSTODY INMATES
a. There are approximately forty-five inmates
at the SDSP in protective custody. These in-
mates are provided protection from the general
inmate population for a variety of reasons.
b. Inmates in protective custody do not generally
have equal access with the general inmate
population to jobs and programs at the SDSP.
c. It is sound correctional policy to provide pro-
tective custody inmates equal access with the
general inmate population to jobs and programs
as long as protective custody inmates can be ade-
quately protected and a safe environment
maintained.
d. Approximately ten protective custody inmates
hold jobs. Most protective custody inmates per-
form laundry jobs which are reserved exclusively
for these inmates. Also one or two protective
custody inmates work in the protective custody
area as runners or clean-up men.
e. It is possible for the SDSP to safely provide
protective custody inmates with equal access to
jobs and programs.
f. There are no protective custody inmates
enrolled in the regular school program at the
SDSP. The regular school program enrolls ap-
proximately 400 to 500 general population in-
mates per year. :
g. One or two protective custody inmates are
participating in the education program by cor-
respondence from within their cells. Inadequate
22a
staff prevent the SDSP from extending to pro-
tective custody inmates the benefits of regular
classroom schooling.
h. There are no protective custody inmates
enrolled in vocational programs at the SDSP.
i. Several special classes, involving instruction
in art, first aid and self-motivation and offered
to inmates in the general population, are not
available to protective custody inmates. An alco-
hol and drug dependency awareness class is
available to protective custody inmates.
j. Protective custody inmates can use the law
library only on Thursdays from 9:00-11:15 a.m.
and from 1:00-3:30 p.m.
k. Protective custody inmates are denied Class
I contact visits with outsiders unless these in-
mates waive their right to protection during these
visits. Contact visits by protective custody in-
mates are currently conducted at the same time
as those for general population inmates. The con-
tact visitation room has a capacity for approx-
imately sixty people. No guards are stationed in
the room during contact visitation.
|. Protective custody inmates are allowed three
out-of-cell recreation periods per week for a total
of one and one-half to three hours per week.
m. A protective custody inmate who does not
have a job spends approximately twenty-three
hours per day in his cell.
n. Protective custody inmates receive less out-
of-cell recreation time than do inmates housed
in close custody in the Adjustment Center. In-
23a
mates housed in close custody in the Adjustment
Center, by court order (see Judicial Notice of
Judgment in Wabasha v. Solem, No. 79-4064,
slip.op. at 4 (D. 5.D. Feb. 18, 1983)) receive at
least five exer.ise periods per week for forty-
five minutes each, for a total of at least three
hours, forty-five minutes.
0. Protective custody inmates go to the dining
room to pick up their food (at a time when in-
mates in the general population are confined to
their cells) but return to their own cells to eat
their meals. The only eating utensil provided is
a spoon.
p. The policies and practices associated with
protective custody status at the SDSP, par-
ticularly in terms of excessive in-cell time and
a basic lack of access to programs and activities,
are similar to those associated with punitive
segregation status at most institutions.
q. The above-identified policies and practices
associated with protective custody status at the
SDSP with respect to a basic lack of access to
jobs, programs and activities, and excessive in-
cell time, constitute serious deficiencies without
correctional justification. These deficiencies could
be remedied without major expense or institu-
tional restructuring.
G. CONDITIONS OF CONFINEMENT — MEDICAL AND
DENTAL CARE
1. Use of Inmate Workers
(i) Initial examinations and Screening Functions.
a. Mr. Shelton, one of the inmate medical
24a
workers at the SDSP, has no formal training or
education in the medical field.
b. Mr. Huth, formerly an inmate dental assis-
tant, had no formal training or education as a den-
tal assistant.
c. There are no nurses or qualified medical staff
regularly scheduled at the SDSP between the
hours of 8:30 p.m. and 7:30 a.m. on weekdays,
or at any time on weekends. During this time,
Mr. Shelton or another inmate medical worker
would perform an initial examination on any in-
mate needing qualified medical attention. For ex-
ample, if Mr. Shelton was called to attend to an -
apparent heart attack victim at a time when no
qualified medical staff were present, he would
take the patient’s history and vital signs, review
the patient’s medical chart, and report the results
of his examination by telephone to the doctor on
call. This practice has since changed in that Mr.
Shelton no longer has access to a patient’s
medical record.
d. Mr. Shelton occasionally performs visua! ex-
aminations of an inmate’s genitals at the request
of the nurses.
e. During times when the dentist is not present
at the SDSP, the inmate dental workers screen
inmate requests for dental service. There are
no written rules or guidelines which regulate the
manner in which inmates are selected for dental
care and treatment. Inmate dental workers assist
the nurses in scheduling other inmates for den-
tal treatment. It is inappropriate for inmate dental
workers under these circumstance to be involv-
ed in scheduling other inmates for dental
services.
25a
f. In scheduling inmates for medical treatment,
the nurses would give Mr. Shelton the medical
charts of those inmates requesting medical treat-
ment. Mr. Shelton in turn makes a list of these
names, signs passes that will summon these in-
mates to the infirmary, and finally gives this list
and the passes to a prison official who then will
issue the passes and summon the inmates for
treatment. It is inappropriate for inmate medical
workers to be involved in scheduling other in-
mates for medical treatment.
(ii) Inmates’ Access to Medical Records
a. Mr. Shelton is involved in typing and filing in-
mate medical records. During times that the
nurses are present, Mr. Shelton has access to
inmate medical records.
b. Inmate workers have on occasion made en-
tries in the medical records.
c. Until approximately one month before trial in
June, 1983, Mr Shelton had a key to the files for
inmate medical records.
d. It is inappropriate for inmate workers to have
any sort of access to the medical records of other
inmates.
(iii) Treatment of Other Inmates
a. Until approximately one month before trial in
June 1983, Mr. Shelton routinely performed me-
dical x-rays on other inmates. Mr. Shelton re-
ceived on-the-job training in how to perform x-
ys from another inmate medical worker.
b. During times when Mr. Shelton was absent,
Mr. Huth performed medical x-rays on other
inmates.
26a
c. Mr. Shelton routinely developed and perform-
ed a first reading on an x-ray. If Mr. Shelton,
in reading an x-ray, discovered for example, in
his estimation, a possible fracture of a bone, he
would submit the x-ray to a nurse for a second
reading. On the other hand, if Mr. Shelton, after
performing a first reading of the x-ray, determin-
ed that there was no fracture, he would not sub-
mit the x-ray to a nurse for a second reading.
d. Until approximately one month before trial in
June, 1983, Mr. Shelton routinely performed me-
dical x-rays on other inmates during times when
no qualified medical personnel were present at
the SDSP. During these times, if Mr. Shelton,
in performing the first reading of an x-ray, dis-
covered in his estimation, an apparent hairline
fracture of a bone for example, he would wrap
the area around the bone with an ace bandage
and give the inmate an order slip for ice and
either Tylenol or aspirin. Mr. Shelton would not
contact qualified medical personnel under these
circumstances. On the other hand, if Mr. Shelton
in his own estimation determined a bone frac-
ture to be serious, he would notify a prison of-
ficial who would then decide whether to call upon
a qualified medical person.
e. Although during the time when Mr. Shelton
was performing medical x-rays he received mon-
thly reports with respect to how much his body
had been exposed to x-ray radiation, he never
understood the reports and no qualified medical
personnel assisted him in interpreting these re-
ports. Mr. Shelton was never instructed by qual-
ified medical personnel in x-ray safety precau-
tions and procedures.
27a
f. In October, 1983, an inmate was given a med-
ical x-ray by a prison guard who had no formal
training or education in the use of x-ray equip-
ment. Mr. Shelton advised the guard as the
guard performed the x-ray.
g. It is inappropriate for inmate medical workers
having no formal training or education in the
medical field to perform medical x-rays on other
inmates. It is also inappropriate for such inmate
medical workers to perform a first reading of
medical x-rays. On-the-job training of a medical
inmate worker by another medical inmate worker
in the use of x-ray equipment is inappropriate.
h. Mr. Huth, the inmate dental worker, routine-
ly performed dental x-rays on other inmates.
Normally there were no qualified medical per-
sonnel present when Mr. Huth performed x-
rays. In order to take dental x-rays, Mr. Huth
routinely placed his hand within the inmate pa-
tient’s mouth to position the x-ray film.
i. It is inappropriate for inmate dental workers
having no formal training or education in the use
of dental x-ray equipment and the proper pro-
cedures and safety precautions for its use to per-
form dental x-rays on other inmates.
j. During a time when no qualified medical per-
sonnel were present at the SDSP, Mr. Almont,
an inmate dental worker, attempted to perform
an EKG exam with the assistance of Mr. Shel-
ton upon another inmate who was experiencing
heart problems. Neither Mr. Shelton, or Mr. Al-
mont possessed proper training in the use of an
EKG machine or in reading and interpreting the
output from such a machine.
28a
k. During a time when qualified medical person-
nel were not present, Mr. Shelton treated an in-
mate who had injured his chin. After he examin-
ed the injury, Mr. Shelton determined that it
would require stitches. Mr. Shelton then notified
a prison official, who sent the inmate patient out
of the institution for qualified medical treatment.
|. During this same time (when qualified medical
personnel were not present) Mr. Shelton treated
an inmate who had lost consciousness and was
transferred to the SDSP infirmary from the
prison farm, which is approximately twelve miles
from the main prison. Mr. Shelton treated the
inmate for approximately five minutes before a
qualified prison nurse arrived in answer to the
emergency.
m. During this same time when there were no
qualified medical personnel present at the SDSP,
Mr. Shelton treated an inmate who experi-
enced breathing problems. The treatment con-
sisted of setting the inmate up to a breathing
machine.
n. On occasions when Mr. Shelton was not pre-
sent, Mr. Huth participated in treating medical
emergencies among the inmate population. Such
treatment typically consisted of treating and ban-
daging the wounded area but also consisted of,
for example, attempting to administer oxygen to
a potential heart attack victim.
o. Mr. Huth routinely assisted the dentist at the
SDSP in performing amalgrams (fillings), bridge
and dental work on inmates.
p. During times when the dentist was not pre-
sent and an inmate complained of a sore tooth,
Mr. Huth routinely treated the inmate by plac-
* Bre a
29a
ing a temporary filling in the sore tooth. On oc-
casion an inmate treated with such a temporary
filling would not be scheduled to see the dentist
until he again complained of a sore tooth.
q. On occasions when the dentist was not pre-
sent, Mr. Almont would operate both a low and
high speed drill on another inmate’s mouth —
in an attempt to grind down a crown or a chip-
ped tooth or a burr from a temporary filling, or
to adjust the bite on a filling.
r. It is inappropriate for inmate workers, wheth-
er dental or medical, to be in any way involved
in the direct treatment of another inmate.
2. Emergency Medical Care
a. There are no protocols, i.e., written guide-
lines setting forth the systems and procedures
to be employed in responding to a particular
emergency, governing emergency medical care
at the SDSP.
b. Correctional officers at the SDSP are not re-
quired to achieve or to maintain certification in
cardiopulmonary resuscitation (CPR). Although
the SDSP administration makes reasonable ef-
forts to train custodial staff in CPR, the institu-
tion does not maintain adequate documentation
of such training. As a result, there is no estab-
lished system at the SDSP to ensure that a cus-
todial staff person properly trained in CPR will
be called upon in the event of an emergency.
c. During times when no qualified medical per-
sonnel are present, inmates requiring medical
treatment are examined initially by an inmate
worker.
30a
or
d. In the event of a medical emefgency during
a time when qualified medical emergency are not
present, the decision whether to call for an am-
bulance rests ultimately with a supervisor. It
takes approximately two to three minutes for a
correctional officer responding to an emergen-
cy to obtain the necessary keys to open up the
cell and attend to the stricken inmates. It takes
approximately two to three additional minutes for
the supervisor to reach the cell in order to make
a decision whether to call for an ambulance.
Depending on the circumstances, a correctional
officer junior in command to the supervisor may
make the decision whether to call for an am-
bulance. If an ambulance is summoned it normally
takes from ten to twenty-five minutes for the am-
bulance to arrive at the scene of the emergency.
e. The SDSP does not have a crash cart, nor
does it have all the medical equipment normally
found on a crash cart.
f. The SDSP lacks adequate resuscitation equip-
ment. Not all corrections officers are trained in
the proper use of existing resuscitation
equipmeitt.
g. Aside from the above-detailed deficiencies in
emergency care, the SDSP staff has taken
reasonable effort to properly respond to and treat
medical emergencies.
. Prescnption Drugs
a. There is no formulary, i.e., a list of those
prescription drugs which qualified medical per-
sonnel choose from in prescribing medication for
a particular condition, of prescription drugs at the
SDSP.
3la
b. The SDSP infirmary has a written policy pro-
hibiting physicians from prescribing certain
medications for the inmates. The list of prohib-
ited medications includes: sleeping medications
of any type; pain relievers such as darvon, talwin,
demerol, codeine and methadone; minor tran-
quilizers such as serax, librium, valium; mood
stimulators such as dexedrine and nitalin; appetite
suppressants of any type; and various cough
medicines such as robitussin, terpin hydrate, and
various codeine preparations. Under certain cir-
cumstances a physician at the SDSP may find it
necessary to indicate one of the above enumer-
ated drugs in treating an inmate; it is inappropri-
ate to strictly prohibit the use of these medica-
tions by a treating physician.
c. The SDSP infirmary also has a written policy
discouraging physicians at the SDSP from pre-
scribing certain anti-asthmatic preparations (such
as aminophyllin, anesec and tedral) and certain
anti-convulsant medications (such as dilantin,
mysoline and phenobarbital) in treating inmates.
It is inappropriate to strictly limit and discourage
a treating physician at the SDSP from prescrib-
ing these medications under all circumstances.
d. At present corrections officers at the SDSP
deliver pre-packaged unit-dose prescription me-
dications, which are brought into the institution
each day and inspected by the registered nurse,
to those inmates who have been indicated for
treatment. This procedure for dispensing pre-
scription medications is adequate. However,
there is currently no procedure by which the
receiving inmate acknowledges, by his signature
or his initials on a form to be filed in his perma-
32a
nent medical file, receiving or refusing to receive
the prescription medication. It is inappropriate
for the SDSP staff to only record those instances
when the inmate refuses his medication, rather
than recording both instances where the inmate
receives his medication and when the inmate
refused to receive his medication.
e. One inmate, Mr. Lone Eagle, was admitted
to the SDSP in December, 1982, while on
prescribed medications of, among other things,
dilantin. Mr. Lone Eagle’s medical records
revealed a history of epileptic seizures, for which
he placed on dilantin in 1979. For approximately
four or five days after he was admitted to the
SDSP, Mr. Lone Eagle did not receive his pre-
scribed medications. An inmate who enters the
SDSP while on a prescription for dilantin and
whose medical records indicate a history of seiz-
ures should be continued on dilantin until receiv-
ing a full medical evaluation. Since being admit-
ted, Mr. Lone Eagle has expenenced three
seizures—each one of them occurring at a time
when he was denied his prescription medication.
f. In September, 1983, there were approximate-
ly 27 inmates on major tranquilizers at the SDSP.
It is important for inmates on major tranquilizers
to be regularly monitored by the treating
psychiatrist, on a schedule ranging from several
times a week to once every three months,
depending on the stabilization of the individual.
Proper monitoring procedures allow the psychia-
trist to regulate the dosage of the particular tran-
quilizer given the inmate, and to detect possible
harmful side effects from the particular tran-
quilizers, such as creating deficiencies in the im-
munity system. The SDSP has no wnittten
33a
policies governing such a monitoring procedure,
nor is there any indication that the SDSP main-
tains such a monitoring procedure. -
. Provisions for Special Diets
a. The SDSP provides one general food line and
one special food line. The special diet line con-
sists of low-salt or no-salt content foods, with
a salt substitute available.
b. Although there are no records kept regarding
the names and the number who are diabetic, it
is estimated that there are approximately six
diabetics at the SDSP. There is no speical diet
line provided for these diabetic inmates, nor are
the various foods included in the general or special
food lines labeled as to their nutritional or calorie
content. These deficiencies are offset by the
reasonable attempts made by the SDSP nurses
to educate these diabetic inmates on a one-to-
one basis regarding their special dietetic needs.
These inmates are also given literature by the
nurses, explaining proper diabetic diet control.
So long as diabetic inmates receive proper
dietary counseling by trained staff, these inmates
can make appropniate food selections from either
the general or special diet line in order to pro-
perly control their diet.
c. The SDSP adequately provides for the special
dietary needs of the inmates.
. Protocols
a. Protocols, i.e., written statements of policy
and procedure, enable the health care staff to ap-
propriately respond to the health care needs of
the prison inmates. Protocols assist the health
care staff and the prison administration in set-
ting in advance various policies and procedures
34a
to be followed in meeting the health care and
needs of the inmates. Protocols also protect the
inmates.
b. At present there are no protocols at the SDSP
relating to standing orders and telephone orders
received by the nursing staff from the attending
physicians; emergency care; infection control and
reporting; treatment of hypertensive inmates:
treatment and monitoring of inmates on psycho-
tropic drugs or major tranquilizers; and the treat-
ment and monitoring of inmates on INH medica-
tion.
c. In March, 1983, the SDSP adopted written
policies relating to: general health care services:
dental care; the use of inmate workers; the pro-
vision of medical, dental or orthopedic pros-
theses; infirmary care; notification or serious il-
Iness or death; employee use of institutional
medical staff and facilities; the maintenance of
medical records; a prohibition on medical ex-
perimentation upon inmates; provisions for in-
formed consent; psychiatric transfers; utilization
of pharmaceutical products; and optometric ser-
vices. In general these protocols are inadequate
and incomplete; they fail to describe in specifics
the policies and procedures associated with each
area of health care.
. Medical Records
a. At present the medical records of inmates at
the SDSP are inadequately organized. The rec-
ords are not placed in an inmate's medical file
in any particular order. Also, the information con-
tained in an inmate's medical file inadequately
identifies such areas as the subjective, objective,
35a
assessment, and planning data associated with
the inmate’s care a.d treatment while at the
prison.
b. Aside from these deficiencies the medical rec-
ords and files of the inmate at the SDSP are kept
in_a satisfactory manner.
. Quality Control
There is at present no defined quality control pro-
gram at the SDSP, particularly governing labo-
ratory services.
. Staff.
a. There are an equivalent of three full-time
registered nurses at the SDSP. This is an inade-
quate number of full-time registered nurses.
b. There are two physician sessions and one
physician’s assistant session per week for an
average of two to three hours each at the SDSP.
The attending physician or physician's assistant
makes reasonable efforts to see every inmate
scheduled for examination and/or treatment.
. Financial Constraints on Medical and Dental
Services
a. Inmate James Weinandt has a severely de-
formed left foot, which was operated on prior to
his admission to the SDSP. After his admission
to the SDSP physician, Mr. Weinandt was told,
in reference to his physical deformity, that there
was nothing that could be done for his foot. Mr.
Weinandt was issued regular, hard-soled inmate
shoes upon his admission to the SDSP. Mr.
Weinandt suffered bruises and blisters on his left
foot as a result of wearing these shoes; he re-
quested of SDSP officials that he be issued ten-
mis shoes in place of the other shoes. Mr.
Weinandt was then informed by prison officials
36a
that he could have tennis shoes only if he could
pay for them; Mr. Weinandt was further inform-
ed that he could not leave his cell without wear-
ing shoes. Approximately one week before Mr.
Weinandt’s trial testimony in June, 1983, he was
informed that he would be issued a pair of ten-
nis shoes.
b. Inmate Thomas S. Seidschlaw was referred
to an outside dermatologist by an SDSP physi-
cian, for treatment of a severe acne condition.
The dermatologist examined Mr. Seidschlaw and
prescribed among other things the medication
Acutane which is a drug used to treat severe
acne problems. Mr. Seidschlaw’s medical rec-
ords indicate that the day following his visit to
the dermatologist, the SDSP physician review-
ed the dermatologist’s recommendations for
treatment and issued the following order to the
on-duty nurse: ‘‘Do not start Acutane at present
{check with the] administration regarding cost
(Acutane therapy as ordered would cost $100 per
month). . .’’ The associate warden was notified
that same day and, according to Mr. Seidsch-
law’s medical records, approximately four days
later the warden and the associate warden order-
ed the permanent discontinuance of Acutane
therapy on Mr. Seidschlaw. The outside derma-
tologist described his recommended treatment
as ‘‘medically necessary’ in the treatment of
Mr. Seidschlaw’s severe acne condition.
c. The expense associated with prescribing and
monitoring the Acutane treatment for Mr.
Seidschlaw, as recommended by the der-
matologist, was a factor in discontinuing such
treatment. If Mr. Seidschlaw had offered to pay
37a
for the Acutane treatment himself, it would have
been prescribed for him.
d. It is inappropriate for a warden, an associate
warden or any member of the prison administra-
tion staff to overrule a specialist’s medical judg-
ment on the sole ground that the recommended
treatment is too expensive.
e. It is improper to deny an inmate medical treat-
ment based solely on the cost of the treatment.
f. Inmate Earl Anderson has a skin condition
consisting of lesions, blisters, eruptions and open
sores. This condition covers most of his body
and has been a recurring problem for many
years. Mr. Anderson’s condition recurred in late
October, 1983, and he was given medication
which caused facial swelling, extreme irritation
to the problem areas of his skin, and an increase
in the redness of the rash. Mr. Anderson subse-
quently requested an appointment with an out-
side dermatologist, but he was told that it could
be three and one-half months before he could see
a dermatologist. Therefore on his own initiative
Mr. Anderson called a dermatologist direct and
arranged for an appointment. Mr. Anderson was
then told by correctional staff at the SDSP that
he would lose his trustee status if he kept the
appointment with the dermatologist. Mr. Ander-
son cancelled his appointment. Subsequently,
Mr. Anderson consulted with counsel for the
plaintiffs and shortly thereafter an appointment
with an outside dermatologist was arranged. As
a result of treatment by this dermatologist, Mr.
Anderson’s skin condition has generally been
suppressed.
niacin
38a
g. There are no written policies with respect to
whether various medical procedures are elective
or necessary in any given instance. A mandatory
or necessary medical procedure leaves no discre-
tion in the treating physician to deny or withhold
treatment by such a procedure; elective pro-
cedures on the other hand leave to the treating
physician relatively full discretion in determin-
ing whether, under all the circumstances of the
particular case, to provide or to withhold treat-
ment by way of such a procedure. On occasions
the medical and dental staff at the SDSP have
consulted the warden regarding whether in in-
dividual cases an elective or somewhat doubtful
elective treatment or procedure should be per-
formed in light of the expense associated with
such a treatment or procedure. The SDSP has
failed to establish clear written guidelines relating
to cost and elective procedures.
h. In the absence of protocols distinguishing
elective from necessary medical services, the
decision whether a particular procedure or treat-
ment is elective or medically necessary is one
properly left to the treating physician.
H. CONDITIONS OF CONFINEMENT—PSYCHIATRIC
AND PSYCHOLOGICAL CARE
1. Staff
a. At present there is one psychiatrist at the
SDSP who performs his work on a volunteer
basis. The psychiatrist visits the institution one
day each week for approximately five hours. One
visit per month is typically devoted primarily to
performing inmate evaluations for the parole
board.
39a
b. The psychiatrist’s direct involvement with in-
mates is largely devoted to identifying and assess-
ing a particular inmate’s needs and treatability,
prescribing medication and occasionally arrang-
ing the transfer of certain inmates to the Human
Service Center in Yankton. The actual psychiatric
treatment provided by the psychiatrist to the in-
mate patients is normally limited to prescribing
medications, brief counseling, conducting inter-
mittent follow-up examinations until the patient
is stabilized, and referring patients to other per-
sonnel within the SDSP or to other persons or
institutions outside the SDSP. At the time of trial
in June, 1983, the psychiatrist was engaged in
individual psychiatric therapy, on a continuing
basis, with two inmates. The psychiatrist visited
one of these inmates approximately five times
in five months; the other inmate had been visited
approximately three times in six weeks. It is not
possible under present circumstances for the
psychiatrist to conduct long-term psychotherapy
on individual inmates experiencing non-emer-
gency mental problems, i.e., inmates having a
difficult time adjusting to the prison environment.
c. The SDSP employs one full-time psycholo-
gist.
d. The psychologist’s first priority and the
largest single part of his work consists of per-
forming a series of psychological tests and eval-
uations on inmates upon their initial entry into
the SDSP. The psychologist does not see any
inmate on a regular counseling basis. The SDSP
psychologist does some counseling for inmates
with mental problems of a less severe nature:
2.
40a
he typically spends approximately one-half hour
to forty-five minutes a day (the equivalent of ap-
proximately one or two interviews per day or
eight to ten interviews per week) counseling
inmates.
e. The SDSP employs seven full-time
counselors and the equivalent of two and one-
half full-time drug and alcohol counselors.
f. It is important for a prison institution to have
a sufficient counseling staff. Adequate counsel-
ing staff reduces the number of instances in which
individuals in the general population deteriorate
both physically and mentally, thus reducing the
number of inmates who must be referred to a
mental hospital for psychiatric treatment. Ade-
quate counseling services aid in the treatment
and prevention of menial health problems among
the inmate population by enabling qualified per-
sonnel to intervene at an early stage in the
diagnosis, care and treatment of these problems.
Adequate counseling services also assist, for ex-
ample, in the continued monitoring of inmates
who have returned to the general population after
having been removed from the general popula-
tion for psychiatric treatment. At present, the
counseling staff at the SDSP does not have time
to adequately perform psychotherapy or
psychological treatment on inmates.
Demand for Mental Health Services
a. There are approximately 20 to 25 psychotic
inmates at the SDSP. The SDSP psychologist
encounters inmates during the intake evaluation
and assessment process whose psychological
problems are so severe that these inmates will
4la
potentially experience or have experienced and
will continue to experience a deterioration in their
physical health. There are occasions at the SDSP
when inmates experiencing a deterioration in
their physical health due in part to mental health
problems have not been referred to or treated
by qualified personnel, so that the physical health
of these inmates continues to deteriorate.
b. There are inmates at the SDSP who have
serious psychiatric needs which are not being ad-
dressed by qualified personnel.
c. It is estimated by the psychiatrist at the SDSP
that at least ninety-five per cent of inmates at
the SDSP have personality disorders.
d. An inmate’s mental condition need not pre-
sent a risk of harm to himself or to others before
psychiatric intervention by qualified personnel is
required. Psychiatric intervention is clearly
necessary in those instances where an inmate
is contemplating suicide or where he exhibits
psychiatric symptoms in such a degree that the
inmate presents a risk of harm to himself or to
others. There are also instances in which
psychiatric intervention is necessary where an .
inmate exhibits psychiatric symptoms short of
the contemplation of suicide or the risk of harm
to himself or to others. An inmate experiencing
significant personality distress in the form of
depression or psychotic symptoms to the degree
he has lost contact with reality not only requires
but is amenable to psychiatric intervention and
treatment.
e. Upon inmate Charles P. Lone Eagle’s ad-
mission to the SDSP it was recommended (on
the basis of a report by an outside psychiatrist
42a
who examined Mr. Lone Eagle) by the judge who
sentenced him that the SDSP consider giving Mr.
Lone Eagle psychiatric treatment. Mr. Lone
Eagle met with the volunteer psychiatrist at the
SDSP on three or four occasions; the average
length of these meetings was three or four
minutes. Mr. Lone Eagle has not been seen by
any other psychiatrists since his admission to the
SDSP. Mr. Lone Eagle has received no group
or individual psychiatric therapy (other than his
brief encounters with the psychiatrist) since his
admission to the SDSP, other than through
Alcoholics Anonymous meetings. There is no in-
dication that Mr. Lone Eagle ever received a
comprehensive psychiatric examination and
assessment (including a full mental status ex-
amination and a review of all pertinent personal,
family, work and education background and
history) to determine whether intensive
psychiatric treatment is required.
f. It is not uncommon for inmates to attempt to
interfere with or to obstruct a psychiatric in-
mate’s medication treatment plan. In order to
minimize the potential for such interference or
obstruction, an institution needs adequate staff-
ing to maintain a sufficient level of contract with
the inmate-patient.
g. One inmate who eventually committed suicide
in 1983 and who, prior to this time, was taking
medication pursuant to a treatment plan devis-
ed by his psychiatrist was persuaded by two
other inmates to discontinue taking his medica-
tion. This inmate-patient, so long as he continued
his medication, exhibited a relatively stable men-
tal health condition; however, once the patient
discontinued his medication his mental condition
43a
destabilized to the point that he required further
psychiatric care and treatment.
. Proper Treatment of Mental Illness Among In-
mates at the SDSP
a. The development of a plan for the appropriate
treatment of mental illness among inmates at an
institution such as the SDSP requires a detailed
assessment of the needed levels of care.
b. There are three levels of care which are
essential in providing an adequate system of
psychiatric and psychological care. Absent such
a system, the probability is strong that inmates
requiring psychiatric and psychological treatment
will not be cared for adequately and will ex-
perience unnecessary mental and/or physical
deterioration in the general inmate population.
c. The first necessary level of care consists of
in-patient hospitalization care to treat acutely
psychotic individuals, individuals experiencing
suicidal tendencies, and those other individuals
most significantly impaired by psychiatric illness.
d. The second necessary level of care consists
of intermediate care and treatment for those in-
dividuals who have been stabilized by medica-
tion and supportive psychotherapy but who can-
not return immediately to the general inmate
population. This level of care is designed to pro-
vide a transition for inmates coming from an in-
patient psychiatric hospital environment back
into the general inmate population. An inter-
mediate level care facility would provide the
inmates an environment less intensive than the
first level psychiatric hospital, but more suppor-
tive than that provided by the general popula-
44a
tion facility. An intermediate level care facility —
requires appropriate nursing staff, support staff,
and psychiatric and psychological staff.
e. The third necessary level of care consists of
out-patient care for inmate-patients who have
received psychiatric treatment and who have
returned to the general population so that these
inmates can have prescribed medications
monitored and can receive supportive group or
individual psychotherapy as indicated.
f. The mental health needs of inmates at the
SDSP require that the SDSP maintain an acute
(first level) care and an intermediate (second
level) care facility equipped with approximately
twenty to twenty-five beds. Of these number,
approximately eight to ten beds would be
devoted to psychiatric care—requiring twenty-
four hour nursing coverage and adequate sup-
port staff. The remaining beds would be devoted
to intermediate care.
g. Staffing for this facility would require a full-
time psychiatrist, two full-time psychologists, ap-
proximately six full-time equivalent nurses in
order to provide twenty-four coverage, at least
four full-time equivalent counselors or psychiatric
social workers to provide support to the
psychiatric and psychology staff, and the
necessary correctional staff to provide twenty-
four hour security over the facility.
h. The mental health needs of inmates at the
SDSP also require that the SDSP provide out-
patient (third level) care.
i. In addition to the staff necessary to provide
acute and intermediate care, adequate out-
45a
patient care would require approximately two
days per week of on-site psychiatric coverage,
a full-time psychologist whose work is devoted
exclusively to the treatment component of mental
health care, and increased counseling staff. The
full-time psychologist position would be in addi-
tion to the present full-time psychologist who
performs primarily administrative functions in-
volving the evaluation and assessment of newly
admitted inmates. While it is preferable that
every counselor have a master’s degree, a
counselor holding a bachelor’s degree accom-
panied by sufficient experience and appropriate
supervision is acceptable.
I. CONDITIONS OF CONFINEMENT—INTAKE AREA
a. Initial medical screening of newly admitted in-
mates at the SDSP is conducted by corrections
officers. There are no formal procedures,
guidelines or protocols regarding this initial
screening process.
b. There is no training program at the SDSP to
properly instruct corrections officers in how to
conduct initial medical examinations and
assessments of newly admitted inmates.
c. It is good medical practice for an institution
such as the SDSP to have protocols relating to
the immediate medical screening of newly admit-
ted inmates.
d. A full medical history and physical examina-
tion of newly admitted inmates is taken some
time within the week that these inmates arrive
at the SDSP. The current medical policies of the
SDSP provide only for a physical examination of
46a
new inmates within fourteen days of admission.
Depending upon the date and time of his initial
entry to the SDSP, an inmate may spend from
eight to fourteen days in the intake area.
e. Although on weekdays inmates in the intake
area are typically involved in orientation and
classification activities from five to six hours per
day, the amount of out-of-cell time afforded these
inmates on weekend days is limited to mealtimes
and time for attending church, These inmates are
denied altogether time out of their cells for pur-
poses of recreation.
f. The psychological examination and screening
of newly admitted inmates at the SDSP is
adequate. :
g. Aside from the orientation and classification
activities and the psychological screening pro-
grams conducted for newly admitted inmates, the
operation of the intake area at the SDSP con-
stitutes a serious deficiency which has no cor-
rectional justification and which could be cor-
rected at no major cost.
h. The SDSP administration has taken
reasonable efforts in attempting to acclimate
newly admitted inmates, through orientation,
classification and counseling programs, to the
SDSP prison environment.
J. ACCESS TO THE COURTS
1. Inmates at the SDSP
a. The contents of the law library at the SDSP
conform to the requirements of this court in the
Agreement In Settlement And Judgment Con-
firming Settlement entered in Crowe v. Enckson,
47a
No. 72-4101, slip op. at 11 and Exh.A (D.S.D.
May 4, 1977). (Nichol, C.J., presiding). From
approximately August, 1982 tc January, 1983,
the SDSP temporarily cancelled all subscriptions
for the pocket parts and supplements for volumes
contained in the law library—due to an inability
to obtain sufficient funding from the state to con-
tinue these subscription.
b. In addition to the materials contained in the
library, the inmates may obtain xerox copies of
other documents or cases, up to a maximum of
twenty-five pages, from the University of South
Dakota law library.
c. There are inmates who have been hired to
work in the SDSP law library who have had no pre-
vious training or experience in legal research or
in the practice of law. There is no paid, full-time,
non-inmate staff employed in the law library.
d. At the time that then-inmate Roger Flittie
(one of the orginal named representatives of the
plaintiff class in the present action) was hired
as an inmate law clerk, his only law-related train-
ing consisted of a twelve week, four credit com-
munity college course in criminal law. Subse-
quent to his appointment, Mr. Flittie sat through
another twelve week course in criminal law, and
received four credit hours in a community col-
lege course in family law.
e. At the time when Mr. Huth, another inmate
law clerk, began his work in the SDSP law
library, he had no paralegal training. Subsequent-
ly, Mr. Huth paid the expenses for a paralegal
course which he attended outside the SDSP for
a time and then completed inside the SDSP by
48a
correspondence. This training did not include in-
struction in methods of legal research.
f. As law clerks in the SDSP law library, Mr.
Flittie and Mr. Huth assisted other inmates in
legal research and in preparing and filing appeals
of their convictions, post-conviction motions and
other matters, and a variety of civil litigation mat-
ters, including civil rights actions under 42
U.S.C. § 1983. Mr. Huth also assisted other in-
mates in the filing of institutional grievances
against correctional officers and other person-
nel at the SDSP.
g. Under the consent decree entered into by the
parties in Crowe v. Erickson, supra, this court
ordered that: ‘“The state will provide periodic
workshops to train selected inmates in the fun-
damentals of legal research.’’ The parties to the
decree further agreed that this provision among
others ‘‘constituted the minimum responsibility
[of the state toward the inmates at the SDSP]
required under law.’’ Although the SDSP has
periodically provided certain inmates with law
courses conducted by various outside attorneys,
this undertaking fails to satisfy the minimum re-
quirements of Crowe v. Erickson; the SDSP has
failed to train selected inmates, especially in-
mates selected as law clerks in the law library,
in the fundamentals of legal research. Inmates
at the SDSP are denied meaningful access to the
courts if they must depend upon inmate workers
who are inadequately trained in the fundamen-
tals of legal research to assist them in legal
matters.
h. The inmate law clerks determine the order
in which inmate requests for access to the law
¢ Meme are AS sa
Pi ia ttl ht a tk
bette bi. elite i Ths tay tate ~<a
ei
49a
library will be granted. The SDSP normally limits
the use of the law library to no more than four
inmates at any one time. The library is open from
approximately 7:30 to 11:30 a.m. and approx-
imately 12:25 to 3:40 p.m. five days per week.
i. During the time when Mr. Flittie and Mr. Huth
served as law clerks, they were either prohibited
or strongly @™couraged by correctional officers
at the SDSP assisting other inmates in civil
nghts litigation against the State of South Dakota
or SDSP officials.
j. Inmates proceeding in federal court on their
own or with the assistance of another inmate who
is inadequately trained in the law are generally
a burden on the court — due to their inability
to properly prepare and file legal documents.
. Inmates at the Women’s Correctional Facility
a. There is no law library at the Women’s Cor-
rectional Facility in Yankton, South Dakota. In-
mates at the facility have access to a set of state
statutes. :
b. There is no written policy at the Women’s
Correctional Facility regarding legal access. The
Facility currently practices an informal policy
which affords any inmate who first requests it
access to the University of South Dakota law
library approximately thirty miles away. Before
transporting an inmate to this library, the warden
of the facility attempts to solicit the assistance
of either a law student or a faculty member at
the school. A notice describing the procedure by
which inmates at the Women’s Correctional
Facility will be transported to the University of
South Dakota law library and given assistance
50a
if possible is posted on the bulletin board at the
Facility. This notice constitutes the primary, if
not the only, source of information available to
inmates at the Facility regarding legal access.
c. The Womens’ Correctional Facility does not
have professionally trained staff members to
assist inmates with their legal problems. An out-
side legal services program is available to assist
these inmates on civil matters only.
d. The average educational background of in-
mates at the Womens’ Correctional Facility is
a tenth grade education. Approximately ninety
per cent of these inmates are indigent.
III. CONCLUSION OF LAW
A. Scope of Federal Judicial Involvement
At the outset, this Court recognizes that ‘‘[t]raditionally,
federal courts have adopted a broad hands-off attitude toward
problems of prison administration.’’ Procunier v. Martinez,
416 U.S. 396, 404 (1974). These problems are ‘‘complex and
intractable, . . . they are not readily susceptible of resolution
by [judicial] decree. Most [prisons] require expertise, com-
prehensive planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and
executive branches of government.’’ Jd. at 405.
However, this court is also mindful that ‘‘[c]ourts certainly
have a responsibility to scrutinize claims of cruel and unusual
confinement. . .When conditions of confinement amount to
cruel and unusual punishment, ‘federal courts will discharge
their duty to protect constitutional rights.’ ’’ Rhodes v. Chap-
man, 452 U.S. 337, 352 (1981) (citing Procunier, 416 U.S.
at 405-06).
at agg
Sla
B. Cruel and Unusual Punishment Under the Eighth
Amendment: The Constitutional Standard
In Rhodes v. Chapman, 452 U.S. at 344-45, the Supreme
Court confronted for the first time the contention by inmates
that the conditions of confinement at a particular state prison
amounted to cruel and unusual punishment in violation of the
eighth and fourteenth amendments.’ The constitutional stan-
dards established in Rhodes guide this court’s decision. The
Court there explained:
No static ‘‘test’’ can exist by which courts deter-
mine whether conditions of confinement are cruel
and unusual, for the Eighth Amendment ‘‘must draw
its meaning from the evolving standards of decency
that mark the progress of a maturing society.’’ Trop
v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
The Court has held, however, that “‘Eighth Amend-
ment judgments should neither be or appear to be
merely the subjective views’’ of judges. To be sure,
‘‘the Constitution contemplates that in the end [a
court’s] own judgment will be brought to bear on
the question of the acceptability’ of a given punish-
ment. But such ‘‘ ‘judgment[s] should be informed
by objective factors to the maximum possible ex-
tent.” ”’
Rhodes, 452 U.S. at 346 (citations omitted).
Conditions of confinement which ‘‘involve the unnecessary and
wanton infliction of pain,’’ Gregg v. Georgia, 428 U.S. 153,
173 (1976) (joint opinion), or are ‘‘grossly disproportionate
to the severity of the crime warranting imprisonment’’ are
*The eighth amendment, which prohibits “cruel and unusual
punishment”, U.S. Const. amend. VIII, is applicable to the States
through the fourteenth amendment. Robinson v. California, 370 U.S.
660 (1962).
52a
violative of the eighth amendment. Rhodes, at 346-47. Included
in prison conditions that involve the unnecessary and wanton
infliction of pain are those that are ‘‘totally without penological
justification.’’ Gregg v. Georgia, 428 U.S. at 183; Estelle v.
Gamble, 429 U.S. 97, 103 (1976), quoted in Rhodes, at 346.
‘‘(C]onditions that cannot be said to be cruel and unusual under
contemporary standards are not unconstitutional. To the ex-
tent that such conditions are restrictive and even harsh, they
are part of the penalty that criminal offenders pay for their
offenses against society.’’ Rhodes, at 347.
Both the plaintiff class and the defendants agree that Rhodes
counsels this court to examine the totality of conditioisn of con-
finement in order to determine whether the plaintiff class has
stated an eighth amendment violation. The Court in Rhodes
declared that ‘‘conditions . . . alone or in combination’’ may
constitute cruel and unusual punishment. Jd.; see 452 U.S. at
363 n.10 (Brennan, J., concurring) (‘“The Court today adopts
the totality-of-the-circumstances test.’’) Justice Brennan in
a concurring opinion explained:
It is important to recognize that various deficien-
cies in prison conditions ‘‘must be considered
together.’’ Holt v. Sarver,, 309 F.Supp. (362, 373
(E.D. Ark. 1970), aff'd 442 F.2d 304 (8th Cir.
1971)5]. The individual conditions ‘‘exist in com-
4The vast majority of federal courts have interpreted Rhodes as
adopting the “totality of conditions” standard. See Ruiz v. Estelle, 679
F.2d 1115, 1139 & n.98 (Sth Cir.) (citing cases), modified per curiam,
688 F.2d 266 (5th Cir. 1982), cert. denied, 103 S.Ct. 1438 (1983).
5One commentator has remarked that the district court in Holt v.
Sarver was the first court to employ the totality-of-conditions test in
analyzing conditions of confinement. See Robertson, When the
Supreme Court Commands, Do the Lower Courts Obev? The Impact
of Rhodes v. Chapman on Correctional Litigation, 7 Hamline L.Rev.
79, 81 n.15. (1984).
—_—_———
ee ee Pee, ee ee
S3a
bination; each affects the other; and taken together
they [may] have a cumulative impact on the inmates.’’
Ibid. Thus, a court considering an Eighth Amendment
challenge to the conditions of confinement must ex-
amine the totality of the circumstances. Even if no
single condition of confinement would be unconstitu-
tional in itself, ‘‘exposure to the cumulative effect
of prison conditions may subject inmates to cruel
and unusual punishment.’’ Laaman v. Helgemore,
437 F.Supp. 269, 322-[23 (D.N.H. 1977)].
Rhodes, at 362-63 (Brennan, J. concurring).
In order for this court to make a judgment based on ‘‘ob-
jective factors to the maximum possible extent’’ and on ‘‘con-
temporary standards of decency’’, it is necessary to consult
pertinent expert opinions in the form of sworn testimony and
exhibits received in evidence, relevant case law regarding par-
ticular conditions of confinement in a factually similar setting,
and various nationally recognized correctional standards
relating to particular conditions. In this regard the court also
draws from the conclusions and recommendations contained
in the SDSP Study. While the opinions of experts as well as
the correctional standards promulgated by certain professional
organizations, such as the American Correctional Asseciation,
the American Public Health Association and the American
Medical Association, do not establish per se the constitutional
minimum standards of decency, they do establish recommend-
ed goals which are instructive on certain questions. See Rhodes,
at 348-49 n.13; Ramos v. Lamm, 639 F.2d 559, 567 n.10 (10th
Cir. 1980), cert. dented, 450 U.S. 1041 (1981).
54a
C. Legal Effect of Changed Condition and Practices
Occurring in the Midst of or in Anticipation of Trial.
This court is aware that with respect to several of the
allegedly unconstitutional conditions and practices of confine-
ment at the SDSP the defendants have instituted in the midst
of or in anticipation of trial changes or improvements, or have
presented evidence of planned, future changes or im-
provements. ‘‘It is the duty of the courts to beware of efforts
to defeat injunctive relief by protestations of repentance and
reform, especially when abandonment seems timed to an-
ticipate suit, and there is probability of resumption.’’ United
States v. Oregon State Medical Society, 343 U.S. 326, 333
(1952). As a general proposition, the ‘‘voluntary cessation of
allegedly illegal conduct does not deprive the tribunal of power
to hear and determine the case, i.e., does not make the case
moot. . . The defendant is free to return to his old ways.”’
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)
(footnote omitted). Although defendants’ efforts to ameliorate
or correct in the midst of or in anticipation of trial various alleg-
ed deficiencies at the SDSP are commendable, they do not
deprive this court of the power to order injunctive and/or
declaratory relief, where otherwise proper, unless: ‘‘(1) it can
be said with assurance that ‘there is no reasonable expecta-
tion’ that the alleged violations[s] will recur, and (2) interim
relief or events have completely and irrevocably eradicated
the effects of the alleged violation.’’ County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v.
W.T. Grant Co., 345 U.S. at 633). Defendants bear a ‘‘heavy’’
burden of showing that both of these conditions have been
satisfied in order to render moot any allegedly deficient con-
ditions or practices of confinement. County of Los Angeles,
, 440 U.S. at 631. One way, of course, to meet this burden
is by consent or stipulation of the parties which is entered in
the record and so decreed by the court.
55a
D. Applicativn of the Constitutional Standard to the Findings
1. General
At the core of the eighth amendment lies the state's obliga-
tion to provide inmates with reasonably adequate shelter, fire
protection provisions, food, sanitation, ventilation, medical
care, dental care and mental health care, hygienic materials
and utilities, such as hot and cold water, light, heat and plum-
bing. See Ramos v. Lamm, 639 F.2d at 568: Newman v.
Alabama, 559 F.2d 283, 291 (5th Cir. 1977), rev'd in part on
other grounds, 438 U.S. 781 (1978) (per curiam No. 77-1107),
cert. denied, 438 U.S. 915 (No. 77-1422); Grubbs v. Bradley,
952 F.Supp. 1052, 1122 (M.D. Tenn. 1982). These are the
‘basic necessities of civilized life’? which are wholly controll-
ed by prison administration and staff; inmates must necessarily
rely on admininstration and staff to ensure that these basic
needs are met. Grubbs v. Bradley, 552 F.Supp. at 1122: Estelle
v. Gamble, 429 U.S. 97, 103 (1976).
2. Environmental Conditions—Cell Halls
a. Fire Safety
The South Dakota Penitentiary Study (‘‘SDSP Study"’) sup-
ports each court finding with respect to fire safety in the SDSP
cell halls. See SDSP Study at 88, Appendix A at 41-46, 49 (un-
numbered pages of appendix numbered in sequence according
to ‘‘Evaluation Summary’’, SDSP Study at 90-91). In adop-
ting such findings, the court minimizes its intrusion into the
details of prison administration with respect to fire safety,
allowing South Dakota’s own state-sponsored published stan-
dards to govern. Cf Williams v. Edwards, 547 F.2d 1206, 1213
(Sth Cir. 1977) (use in part of state fire and health codes to
establish eighth amendment violation minimizes intrusion by
federal court into details of prison administration).
S6a
b. Ventilation and Heating System
The SDSP Study concluded that ‘‘[a]ll housing areas are
deficient in air movement.’’ Appendix A at 3. The SDSP Study
also disapproved the inadequate ventilation in the West Hall
lower level shower area, see id. at 1, as well as the generally
obsolete heating system servicing all three cell halls: ‘‘The
existing heating system is inefficient and the facility design
generally does not allow for proper distribution of tempered
air. This is a result of both obsolescence in [the] original design
of various sections [of the SDSP] as well as the patch-work
accumulation of [heating] components."’ /d. at 47; see also id.
at 48, 49.
On several occasions, federal courts have held ventilation
and heating deficiencies similar to these existing at the SDSP
violative of the eighth amendment, See Ramos v. Lamm, 639
F.2d at 569-70 (inadequate ventilation especially in cell and
shower areas, coupled with deficient heating system and other
unsanitary conditions constitutes breach of ‘‘minimal shelter
and sanitation standards contribut[ing] immeasurably in mak-
ing the main living areas unfit for human habitation.’’); French
v. Owens, 538 F.Supp. 910, 913, 926 (S.D. Ind. 1982); Hut-
chings v. Corum, 501 F.Supp. at 1282, 1293 (constitutionally
inadequate ventilation system); Palmigiano v. Garrahy, 443
F.Supp. 956, 962, 979, 987 (D. R.I. 1977), remanded on other
grounds, 599 F.2d 17 (1st Cir. 1979); Pugh v. Locke, 406
F.Supp. 318, 323, 329, 334 (M.D. Ala. 1976), aff'd in rele-
vant part and remanded sub nom. Newman v. State of Alabama,
559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds,
438 U.S. 781 (1978) (per curiam) (No. 77-1107) cert. denied,
438 U.S. 915 (1978) (No. 77-1422).
S7a
c. Overhead Lighting and Electrical Wiring
The SDSP Study concluded that: ‘‘An area of deficiency [in
the three cell halls] is the obsolensence [sic] of the cell block
construction and the lack of adequate lighting in the cells. This
inadequacy goes further to present a very real safety hazard,
with inadequate and exposed wiring and an array of extension
cords.’’ Appendix A at 5; see also id. at 49 (provisions for elec-
tricity in cell blocks are generally obsolete); id. at 39 (in large
part, electrical wiring is substandard and nonconforming to
Underwriters Electrical Code).
Several courts have also condemned similar lighting and elec-
trical wiring deficiencies as violative of the eighth amendment.
See Grubbs v. Bradley, 552 F.Supp. at 1052, 1072-74, 1098-99,
1126 (inadequate lighting and electrical wiring); French v.
Owens, 538 F.Supp. at 913-14, 926 (inadequate in-cell lighting);
Ramos v. Lamm, 485 F.Supp. at 135, 155 (same); Palmigiano
v. Garrahy 443 F.Supp. at 961, 979-80, 987 (same); Pugh v.
Locke, 406 F.Supp. at 323, 329, 334 (inadequate lighting and
electrical wiring).
d. Hot Water and Water Temperature Control System
The SDSP Study noted the absence of running hot water
in the cells in Federal Hall. See Appendix A at 19. Basic per-
sonal hygiene requires the availability of hot running water,
and for this reason, several courts have condemned the ab-
sence of hot water as violative of the eighth amendment. See
Grubbs v. Bradley, 552 F.Supp. at 1100, 1126, 1132; French
v. Owens, 538 F Supp. at 925, 926; Lightfoot v. Walker, 486
F.Supp. 504, 510, 525, 528 (S.D. Ill. 1980); Ramos v. Lamm,
485 F.Supp. at 135, 155; Battle v. Anderson, 447 F Supp. 516,
523, 524-25 (E.D. Okla.), aff'd, 564 F.2d 388 (10th Cir. 1977);
Palmigiano v. Garrahy, 443 F Supp. at 961, 979, 987; Pugh
v. Locke, 406 F.Supp. at 323, 332. The provision for delivery
58a
of hot water once each day to inmates in Federal Hall does
not rectify this fundamental deficiency.
Plaintiffs complain of the potential for burning and scalding
due to the extremely high temperatures of running hot water
in individual wash basins in cells in East Hall. Although the
cell wash basins in East and West Halls lack an automatic mix-
ing valve to deliver running water at reasonably comfortable
temperatures, the court concludes that, so long as these basins
are equipped with stoppers or plugs in order to allow inmates
to manually blend hot and cold water, these deficiencies are
adequately rectified.
3. Environmental Conditions — Kitchen and Food Storage
Areas
The SDSP Study supports several of the court’s findings
regarding environmental conditions in the kitchen and food
storage areas. With respect to the provisions at the SDSP
for proper food storage, in order to preserve foods and pre-
vent waste, spoilage and the spread of food-borne diseases,
the Study concluded:
This is an area in which the existing physical plant
is grossly deficient. The kitchen area, remodeled in
1944, has no walk-in freezer, as an institution of this
size should. Also, the basement located food storage
area is inadequate in every respect including the abili-
ty to be secured against pilferage. Use of the former
slaughterhouse for food supply warehousing helps
to ameliorate this problem but creates a separate
logistic problem in the frequent movement of sup-
plies which it necessitates.
Appendix A at 30. See also id. at 28 (ventilation in kitchen area
is ‘‘makeshift and hazardous;”’ inmates regularly circulate
through kitchen; ‘‘[{k]itchen elevator is outdated and unsafe;”’
59a
and kitchen hoods lack ancillary fire protection system); id.
at 31 (food storage provisions in food preparation area are
‘‘[vJery poor . . . both in quality and in basement location’’).
These conclusions were substantiated by expert testimony
at trial.
Several courts have condemned as violative of the eighth
amendment similar environmental conditions in the kitchen and
food storage areas. See Ramos v. Lamm, 639 F.2d at 570-72
(‘‘old, outdated’’ kitchen and food storage area, inadequate
kitchen ventilation, active rodent and insect infestation, im-
proper food storage, non-compliance with state health code,
along with other unsanitary conditions and practices in food
service areas has ‘‘substantial and immediate detrimental im-
pact’ on health of inmates in maximum security unit of Col-
orado State Penitentiary); Grubbs v. Bradley, 552 F.Supp. at
1074-75, 1089, 1099-1100, 1128, 1132 (improper food storage,
active rodent infestation, ‘‘old, dirty and uncleanable’’ uten-
sils, leakage of overhead plumbing line onto stored food box,
generally dirty refrigerator, among other unsanitary conditions
and practices pose ‘‘substantial risk’’ to health of inmates in
three Tennessee prisons); French v. Owens, 538 F.Supp. at
921-11, 916; Lightfoot v. Walker, 486 F Supp. at 512-13, 524.
525, 528; Battle v. Anderson, 447 F.Supp. at 522, 523, 525:
Palmigiano v. Garrahy, 443 F.Supp. at 962-63, 979-80; 987;
Laaman v. Helgemoe, 437 F .Supp. at 278-79, 323, 326; Pugh
v. Locke, 406 F.Supp. at 323, 329, 334. See also Capps v.
Attyeh, 559 F.Supp. 894, 914, 915 (D. Ore. 1982) (milk pas-
teurization process, due to non-functioning thermometer, alone
constitutes cruel and unusual punishment).
4. Environmental Conditions — Shops and Vocational Pro-
grams
Inadequate ventilation in regard to cell areas has been con-
demned by several courts as violative of the eighth amend-
60a
ment under the totality-of-conditions standard. See supra at
pp. 46-47. The court likewise recognizes the potentially harm-
ful health effects of inadequate ventilation in the welding and
furniture upholstering shops at the SDSP, especially since toxic
fumes are often present in these shops. In French v. Owens,
538 F.Supp. at 921, 926, the court held that inadequate ven-
tilation in the furniture shop and in the paint spray booths at
an Indiana prison, along with the use by inmates of toxic glues
without adequate ventilation, respirators or gloves, contributed
to a finding of cruel and unusual punishment under the totality-
of-conditions test.
The court concludes that the findings of fact with respect
to environmental conditions in the SDSP shops and vocational
programs demonstrate serious deficiencies presenting health
hazards to inmates employed in these areas.
5. Conditions of Confinement — Double-Celling
a. General Inmate Population
In Rhodes, 452 U.S. 337, the Supreme Court held that
double-celling does not constitute a per se violation of the eighth
amendment. The Court overturned a lower court injunction
prohibiting, except as a temporary measure, double-celling at
an Ohio prison. A careful review of the totality of conditions
of confinement present in Rhodes, as compared with the totality
of conditions existing at the SDSP leads this court to distinguish
Rhodes on its facts.
The Ohio prison scrutinized in Rhodes was described by the
district court as ‘‘unquestionably a top-flight, first-class facil-
ity.’’ 434 F.Supp. 1007, 1009 (S.D. Ohio 1977). It was built
in the early 1970’s and the cells, which each measured ap-
proximately 63 square feet, were described as ‘‘exceptional-
ly modern and functional.’’ 452 U.S. at 349, n.13. The cells
Ola
were adequately ventilated and temperatures throughout the
cellblock were ‘‘well-controlled’’. Jd. at 342. A heating and
air circulation vent was located near the ceiling of each cell
and a majority of cells had a window that inmates could open
or close. Jd. at 341. Each cell contained a sink with hot and
cold running water and each cell was equipped with a built-in
radio. Jd. Located adjacent to each cell block was a dayroom
furnished with a wall-mounted television, card tables, and
chairs; the dayroom was open to inmates each day between
6:30 a.m. and 9:30 p.m. /d. Of those inmates double-celled
(approximately 1400 out of a total inmate population of 2300),
about 75 percent had the opportunity ‘‘of spending much of
their waking hours outside their cells, in the dayrooms, school,
workshops, library, visits, meals, or showers.”’ Jd. at 342.
Job and educational opportunities diminished only marginally
as a result of double-celling. Jd. at 348. The kitchen and food
services were adequate, and there was no evidence of sys-
tematic failures to meet inmate medical or dental needs. /d.
at 342. Amidst these ‘‘generally favorable findings’’, Jd. at
343, the Supreme Court held that ‘‘double-celling under these
circumstances’’ did not constitute cruel and unusual punish-
ment in violation of the eighth amendment. /d. at 348.
This court’s findings of fact detail the extent of double-celling
at the SDSP and its impact on all programs and services, as
well as on the physical plant. The court is convinced that these
findings taken together with the other findings respecting vari-
ous conditions of confinement at the SDSP distinguish the in-
stant case from Rhodes.
In contrast to the‘‘exceptionally modern and functional”’
facility under review in Rhodes, the SDSP is generally old and
non-functional; inmates housed in individual cells in West, East
and Federal Halls are subjected to numerous substandard liv-
ing conditions. In this regard, the SDSP Study, at 95, con-
62a
cluded: ‘‘Existing cell blocks are totally unsatisfactory for hous-
ing inmates from the individual and combined application of
numerous minimum standards for correctional facilities.’’
This court’s findings with respect to various conditions of
confinement at the SDSP run contrary to the ‘‘generally favor-
able findings’ cited in Rhodes: the ventilation system, especial-
ly regarding West Hall where the majority of double-celling
exists, is inadequate; the heating system in all three cell halls
is generally inadequate and fails to adequately control air
temperatures throughout each cell hall; several inmates are
double-celled in Federal Hall where there is no running hot
water; there are no lounges or dayrooms available to amelio-
rate the effects of double-ceiling (see SDSP Study, Appendix
A at 7, 12); the Warden at the SDSP testified that double-
celling at the SDSP has placed undue burdens on various ser-
vices, programs and maintenance activities with respect to the
physical plant; the SDSP is grossly understaffed; overcrowding
at the SDSP has a negative impact on the availability of jobs
for a significant number of inmates; several unsanitary condi-
tions exist in the kitchen and food storage areas; and system-
wide deficiencies are present in the areas of physical and mental
health care. These findings, despite other more favorable find-
ings such as the generally adequate level of sanitation through-
out the SDSP, the generally low tension among inmates and
among inmates and staff, and the sincere efforts made by the
SDSP administration and staff to maintain a healthful prison
environment, constitute for the most part structural deficien-
cies of a permanent nature in numerous services, programs
and in the physical plant at the SDSP. Many of these findings
relating to structural deficiencies at the SDSP spring directly
from the State-commissioned SDSP Study.The record in this
case supports the conclusion that overcrowding, as evidenc-
ed by the extent of double-celling, substantially contributes
to the substandard living conditions at the SDSP.
63a
Several post-Rhodes decisions have held the practice of
double-celling, when considered among the totality of condi-
tions of confinement similar to those prevailing at the SDSP,
unconstitutional under the eighth amendment.
See Grubbs v. Bradley, 552 F.Supp. at 1070-87, 1110-13,
1125-26, 1131 (extensive double-celling in old, poorly-main-
tained Tennessee prison units, combined with inadequate ven-
tilation, lighting, fire safety provisions, job and educational op-
portunities, kitchen and food storage facilities, physical and
mental health care, and other deficient conditions); French v.
Owens, 538 F.Supp. at 924-26, 927 (distinguishing Rhodes:
double-celling in 59 year-old Indiana prison, combined with in-
adequate ventilation and heating system, deficient electric wir-
ing, unsanitary kitchen and food areas, inadequate fire pro-
tection provisions, inadequate job and vocational opportunities,
no running hot water in cell basins, absence of dayrooms, in-
adequate medical care, and other conditions); Cf. Hendrix v.
Faulkner, 525 F.Supp. 435, 463-510, 525-26 (N.D. Ind. 1981),
aff'd tn relevant part sub. nom. Wellman v. Faulkner, 715 F.2d
269, 274 (7th Cir. 1983) petition for cert. filed, 52 U.S.L.W.
3400 (U.S. Nov. 7, 1983) (No. 83-768) (although double-celling
not practiced, excessive in-cell time in cells ranging in size
from 54 to 59.2 square feet in Indiana state prison over 100
years old, combined with otherwise constitutionally adequate
conditions of confinement, constituted unconstitutionally over-
crowded conditions). But see Smith v. Fairman, 690 F.2d 122
(7th Cir. 1982), cert. denied, 103 S.Ct. 2125 (1983) (double-
celling approximately 56 percent of the general inmate popula-
tion at an Illinois prison in cells ranging in size from roughly
55 to 65 square feet — combined with totality of other condi-
tions of confinement — did not constitute eighth amendment
violation).
In Burks v. Walsh, 461 F.Supp. 454 (W.D. Mo. 1978), aff'd
sub. nom. Burks v. Teasdale, 603 F.2d 59 (8th Cir. 1979),
64a
a pre-Rhodes decision, the court held inter alia, that double-
celling inmates in 65 square foot cells (Housing Unit 3 con-
structed in 1865), combined with other conditions of confine-
ment at the Missouri State Penitentiary, did not violate the »
eighth amendment. 461 F.Supp. at 487-88. This court dis-
tinguishes the holding in Burks on two grounds. First, although
basing its decision on the totality-of-conditions standard, the
Burks court limited its analysis only to inmate allegations con-
cerning ‘‘over-crowding and unsanitary conditions’’, deferr-
ing other issues, such as claims of inadequate medical care,
for a separate trial. 461 F.Supp. at 456 & n.1. Second, although
the Eighth Circuit affirmed in general the district court, the
appeals court did so ‘‘[s]ubject to [certain] observations, re-
quirements and possible caveats.’’ Burks v. Teasdale, 603
F.2d at 63. In this regard, the Eighth Circuit made the following
observation with respect to the practice of double celling in-
mates in Housing Unit 3:
We are concerned with the action of the district court
in permitting double-celling to continue permanent-
ly or indefinitely in Housing Unit 3. We do not hold
categorically that putting two men in a cell with a
floor space no larger than 65 square feet either is
or is not constitutionally permissible. . . But, we
think that it must be recognized that putting «wo men
in such a small cell and keeping them there for long
periods of time can produce intolerable tensions and
will almost inevitably cause trouble not only to the
inmates but also prison personnel. As stated, the
district court has retained jurisdiction of the case;
we think that the district judge should keep a close
watch on the situation in Housing Unit 3, and we
think that whether constitutionally required or not,
double-celling in that unit ought to be eliminated
when practicable.
65a
b. Inmates Housed in the Intake and Protective
Custody Areas
The practice of double-celling newly admitted inmates, taken
together with other conditions of their confinement at the
SDSP (see Findings of Fact, supra, II. E.5. & I.), particularly
the fact that qualified medical staff do not timely screen these
inmates for potentially dangerous communicable diseases (see
Conclusions of Law, infra, Ill. D.7.d.), constitutes a serious
deficiency. Cf. Lareau v. Manson, 651 F.2d 96, 107-08 (2d
Cir. 1981) (confining up to eight new arrivals in double-bunked
dormitory and forcing some of them to sleep on mattresses
placed on the the floor — combined with other conditions,
especially inadequate medical screening — constitutes cruel
and unusual punishment in violation of eighth amendment).
At their own request, protective custody inmates at the
SDSP are removed from the general population and confined
to a group of cells located in East Hall. As such, these inmaies
are subject to the same general conditions of confinement as
are inmates in the general population, i.e., environmental con
ditions, health care policies and practices, and general effects
of double-celling. Inmates housed in protective custody,
despite their having chosen this confinement status, retain their
eighth amendment nights.
The fact that these inmates for the most part re-
quested placement in protective custody does not
change the status of their conditions of incarcera-
tion. It is obvious that those who request protec-
tive custody must exercise the classic Hobson's
choice. They opt between the lesser of two evils,
and in no way can those inmates requesting protec-
tive custody be characterized as having exercised
voluntary relinquishment of a known right to be free
from incarceration under conditions which are in-
tolerable and a clear violation of Eighth Amendment
standards.
66a
M.C.I. Concord Advisory Board v. Hall, 447 F.Supp. 398,
401 (D.Mass. 1978).
The practice of double-celling protective custody inmates,
considered along with other conditions of their confinement
at the SDSP, particularly the insufficient out-of-cell time
available (see Finding of Fact, supra, II.F.), constitutes a defi-
ciency of constitutional dimension. In Campbell v. Cauthron,
623 F.2d 503, 507 (8th Cir. 1980), the Eighth Circuit recogniz-
ed that the duration of confinement affects whether the con-
ditions of incarceration are constitutionally adequate. Even
acknowledging that ‘‘most inmates are confined in the jail for
relatively short periods of time,’’ the court had ‘‘no trouble’’
in holding that overcrowded conditions which accorded each
inmate approximately eighteen to twenty-six square feet of
dormitory space, coupled with only a few hours each week
of out-of cell time, constituted cruel and unusual punishment.
Id. at 506.
Several courts have held unconstitutional the practice of
double-celling protective custody inmates under conditions
similar to those existing at the SDSP. See French v. Owens,
538 F.Supp. at 916, 924, 926, 927 (double-celling protective
custody inmates combined with severe restrictions on out-of-
cell time); Burks v. Walsh, 461 F.Supp. at 486-89 (double-
celling protective custody inmates, who had “‘substantially
less’’ out-of-cell time than inmates in general population, in
cells measuring 47.18 square feet, is ‘‘plainly intolerable’’);
Battle v. Anderson, 457 F.Supp. 719, 738 (E.D. Okla. 1978)
(double-celling protective custody inmates in overheated cells,
combined with no outdoor exercise but approximately two
hours per day out-of-cell time, constitutes conditions of con-
finement which ‘‘are punitive in nature and would not be
allowable even if the inmates were being subjected to
disciplinary sanctions’’), remanded on other grounds, 594 F.2d
786 (10th Cir. 1979); M.C.I. Concord Advisory Board v. Hall,
67a
447 F.Supp. at 401, 404 (double-celling protective custody in-
mates in cells measuring approximately sixty-six square feet,
accompanied by inadequate ventilation, plumbing and lighting,
is “‘sufficiently shocking as to violate standards of common
decency.)”’
6. Conditions of Confinement — Protective Custody
Inmates
Protective custody inmates at the SDSP are denied various
educational and job opportunities, various dining, outdoor
recreation and visiting privileges, and access to various pro-
grams and other activities otherwise available to inmates in
the general population (see Findings of Fact, supra, II.F.). A
necessary component of protective custody status, however,
is the limited access to programs, activities and privileges that
would tend to bring inmates accorded this status in contact
with inmates in the general population. See Lovell v. Brennan,
566 F.Supp. 672, 691 (D.Me. 1983). Protective custody in-
mates desire this protection and defendants have an interest
in maintaining it — principally by isolating these inmates from
other inmates.
Whether under the equal protection clause of the fourteenth
amendment® or the ‘‘unconstitutional conditions’’ standard
developed in Wojtczak v. Cuyler, 480 F.Supp. 1288, 1291,
°Under the equal protection clause, defendants are entitled to place
restrictions on the opportunities, rights and privileges accorded pro-
tective custody inmates, as compared to those available to inmates in
the general poulation, provided that these restrictions are rational
rather than arbitrary and capricious. Nadeau v. Helgemoe, 561 F.2d
411, 416 (Ist Cir. 1977). In order to prevail on an equal protection
claim, the protective custody inmates must demonstrate “that they
received treatment which was invidiously dissimilar to that received by
other inmates.” Lyon v. Farrier, No. 83-1062, slip op. at 3 (8th Cir.
March 20, 1984) (per curiam).
68a
1302-07 (E.D. Pa. 1979)’, the interests of protective custody
inmates in increased access to opportunities, rights and
privileges accorded other inmates must be balanced with the
legitimate interest of the defendants — as well as of protec-
tive custody inmates — in securing protection for inmates in
protective custody.
The Court concludes that there are valid security considera-
tions present for, and defendants have a rational basis for, plac-
ing restrictions, of the kind and to the extent detailed in the
findings of facts, on the rights, privileges and opportunities
available to protective custody inmates. See Lovell v. Bren-
nan, 566 F.Supp. at 690-92. Plaintiffs have not shown that
protective custody inmates at the SDSP receive ‘‘treatment
invidiously dissimilar to that received by other inmates.’’ Lyon
v. Farner, No. 83-2061, slip op. at 3 (8th Cir. March 20, 1984)
(per curiam).
7. Health Care
a. Constitutional Standard
Although the adequacy of health
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