# Petition for Writ of Certiorari — Cody v. Hillard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1210%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 906 ## 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 decre [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1210%3A1. Public record. Not legal advice.