Petition for Writ of Certiorari — Cody v. Hillard

Supreme Court brief1988

Ask Donna

What actually matters in this document.

Text

+ Y fe 11%@1 :

ey , Supreme Court, U.S,

) \e RTL ED

| 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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition for Writ of Certiorari — Cody v. Hillard · 485 U.S. 906 | Frix