Petition for Writ of Certiorari — Wilson v. Canterino

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89-464")

No. 4

vourt, U.

* FILED

SEP 18 1989

JOSEPH F. SPANIOL, JR.

CLERK

~..

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GEORGE W. WILSON, Et Al, - - - _ Petitioners,

versas

PAT CANTERINO, A/K/A

PAT WILLIAMS, Et Al, - - - Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID FRIEDMAN* BARBARA WILLET JONES*

Legal Aide Society Corrections Cabinet

425 W. Muhammad Ali Blvd. Office of General Counsel

Louisville, Kentucky 40202 State Office Building

502/584-1254 Room 500

Counsel for Respondents Frankfort, Kentucky 40601

502/564-2024

Counsel for Petitioners

LESLIE W. ABRAMSON

University of Louisville

School of Law

Belknap Campus

Louisville, Kentucky 40292

502/588-6385

Counsel for Respondents

*Counsel of Record

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-—P.O. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

As a result of a finding of a disparity of access to

the courts between a class of female inmates and some

male inmates in the lientucky corrections system, the

Sixth Circuit Court of Appeais affirmed the district court’s

remedial order which included affirmative “sex-conscious”

relief even though there was no finding of an intent, to

discriminate, no member of the class established an in-

ability to receive any needed legal services and no such

program was provided male inmates.

The questions presented are:

1. Whether an order to hire private counsel to assist

female inmates is constitutionally improper under

the Due Process Clause or the Equal Protection

Clause when the remedial order also directed specifie

improvements which created identical resources for

access to the courts to female and male inmates,

2. Whether affirmative “sex-conscious” relief granted

- to female inmates in an action under 42 U.S.C. § 1988

is constitutionally improper when the record is de-

void of any evidence of an intent to discriminate

and resources identical to those available to male

inmates were ordered.

3. Whether the Equal Protection Clause when applied

in a female penal institution requires equality rather

than parity of treatment among female and male

inmates.

4. Whether an order to hire private counsel to assist

female inmates is constitutionally improper when

the court failed to limit the duties of private counsel

and set no standard by which such affirmative relief

could end.

LIST OF PARTIES

The parties to the proceedings below were the Peti-

tioners, George Wilson, Secretary, Kentucky Corrections

Cabinet; Betty Kassulke, Superintendent, Kentucky Cor-

rectional Institution for Women; Barry Benner, Associate

Superintendent, Kentucky Correctional Institution for

Women; Gail Chandler, Associate Superintendent, Correc-

tional Institution for Women; Raymond Barber, Superin-

tendent, Kentucky Department of Education; and the Re-

spondents, Pat Canterino, a/k/a Pat Williams: Susie M.

Bland, Tina Stone, Wanda Hicks, Joan Starks, Cecilia A.

Gonzalez, Shirley LaCourse, as representatives of the plain-

tiff class of inmates incarcerated at the Kentucky Correc-

tional Institution for Women.

iii

TABLE OF CONTENTS

—

PAGE

QUESTIONS PRESENTED ...................... i

aa cscs ccc cece cc ccccccsvccce ii

TABLE OF CONTENTS ......................... iii-vi

OPINIONS BELOW .........................2... 1- 4

SSS Sa eee sc cc ceca ccccccccccesecs 4

STATEMENT OF THE CASE .................... 4-11

REASONS FOR GRANTING THE WRIT ......... 12-27

ARGUMENT:

I. The Sixth Circuit Opinion Extends the Prin-

ciples of the Due Process Clause and the Equal

Protection Clause Beyond Constitutional Limits

and Conflicts with the Decisions of This Court,

the Sixth Circuit and Other Courts. .......... 12-18

A. Affirmative sex-conscious relief is not avail-

able in equal protection claims pursued under

Section 1983 against state corrections officials

without a showing of intent to discriminate. .12-18

II. This Opinion Creates a Conflict with Bounds and

Murray, With the Other Circuits and Within

the Sixth Circuit. .......................088. 19-25

A. The order to hire private eounsel exceeds the

obligations of state officials to provide access

ES Ea eT 19-25

III. The Principles of Federalism and Comity Pro-

hibit Overbroad and Intrusive Remedies. ...... 25-27

A. This order sets no limits and no standards by

which its effectiveness can be reviewed. ... .25-27

CONCLUSION ................ GRREEVGA wh eA USGS? 8 28

PAGE

(\ “cs ner rr ee ree latoa

Petition for Rehearing Denied ..............+. la

Opinion of the Court of Appeals for the Sixth

CE ann bik cc cha vice ces Swodentesedeweteuye 2a—12a

Memorandum Decision of the United States Dis-

trict Court for the Western District—Septem-

aS Peer USFS. chiles 13a-18a

Memorandum Decision of the United States Dis-

trict Court for the Western District—Febru-

Ary 14, 1983 .... cece ccc es eee e ne ccceenes 19a-—35a

Relevant portions of Memorandum Decision of

the United States District Court for the West-

ern District—July 26, 1982 ..... + vie: Het is Gace 36a—45a

TABLE OF AUTHORITIES

PAGE

Barefield v. Leach, No. 10281 (D. N.M. 1974) ........ 12

Batton v. North Carolina, 501 F. Supp. 1173 (E.D.

Se SU Se dAN A weds ehEh ove wenvaccuhancceaiva 12

Bell v. Wolfish, 441 U.S. 520 (1979) ...0.......00... 25

Bounds v. Smith, 430 U.S. 817 (1977) ... i » « ite Wi Bie

' 19, 21, 23, 24

Bukari v. Hutto, 487 F. Supp. 1162 (E.D. Va. 1980) .. 12

Campbell v. Miller, 787 F. 2d 217 (7th Cir. 1986), cert.

SE ry IT IS. Bk0a 6s Kcco ds sw dee oe 21

Canterino v. Wilson, 546 F. Supp. 174 (W.D. Ky.

SEE enn okedsenvrinds be Rdbet take daneondars 2,5, 18

Canterino v. Wilson, 869 F. 2d 948 (6th Cir. 1989)... 18

Cepulonis v. Fawr, 732 F, 2d 1 (1st Cir. 1984) ....... 21

Cruz v. Hauck, 762 F, 2d 1230 (Sth Cir. 1985) ....... 21

Cruz v. Hauck, 627 F. 24.710 (Sth Cir. 1980) ........ 21

Dawson v. Kendrick, 527 F. Supp. 1252 (S.D. W.Va.

EE aAlh et dina Ace AANA dhs CERERAEY OG sek oes wwe 12

Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich.

1979), aff'd sub nom. Cornish v. Johnson, 774 F. 2d

Re en es SI 5 bo « Coch as Os Ce bcd ew ee en 10, 13, 18

Gutierrez v. Mun. Ct. of S.E. J wiiotal Dist., 838 F.2d

BEE ST EEE ec Ge sa bib née bee wes chatees 14

Harrington v. Holshouser, 741 F. 2d 66 (4th Cir, 1984) 21

cert. den’d 442 U.S. 911 (1979) ................. 22

Holt v. Pitts, 702 F. 2d 639 (6th Cir. 1983) .......... 11, 24

Hooks v. Wainwright, 775 F. 2d 1433 (11th Cir. 1985). 22

Hoptowitt v. Ray, 682 F. 2d 1237 (9th Cir. 1982) .... 25

Johnson v. Avery, 393 U.S. 482 (1969) ........0...... li

Kelsey v. Minnesota, 622 ¥. 2d 956 (Sth Cir. 1980)... 21

Kendrick v. Bland, 740 F. 2d 432 (6th Cir. 1984) ....11, 26

Kendrick v. Bland, 541 F. Supp. 21 (W.D. Ky. 1981).. 2,5

Kentucky Dept. of Corrections v. Thompson, 109 8. Ct.

SE REE kG ck cdiaCiansGaakaeescauckel oeides 2

Lindquist v. Idaho State Board of Corrections, 776

Be ee TEE GRD, MOUND cans vacicarececscesecs 21-22

Local 28 Sheet Metal Workers’ Intern’l. Ass’n v.

EEOC, 478 U.S. 421 (1986) ........ ccc cecceeess 16

McMurry v. Phelps, 533 F. Supp. 742 (W.D. La. 1982),

rev'd on other grounds, Thorne v. Jones, 765 F. 2d

1270 (5th Cir. 1985) ....... Se eeu’: Se Ceck hetc< és 12

Massachusetts v. Feeney, 442 U.S. 256 (1979) ....... 15

Mescall v. Burrus, 603 F. 2d 1266 (7th Cir. 1979) .... 14

Mitchell v. Untreiner, 421 F. Supp. 886 (N.D. Fla.

BE Sick cant whh CUS Abs ve rERS oR Kha Leeeeaen bei 12

Morrow v. Harwell, 768 F. 2d 619 (5th Cir. 1985) ... = 21

Murray v. Giarratano, 109 S. Ct. 2765 (1989) . .19, 20, 21, 23

Newman v. Alabama, 683 F. 2d 1312 (11th Cir. 1982). 25

O’Lone v. Shabazz, 482 U.S. 342 (1987) ............. 14, 25

Peterkin v. Jeffes, 855 F. 2d 1021 (8rd Cir. 1988) .... 21

Preiser v. Rodriguez, 411 U.S. 475 (1973) ........... 25

Precunier v. Martinez, 416 U.S. 396 (1974) .......... 25

Rizzo v. Goode, 423 U.S. 362 (1976) ................ 25

Rhodes v. Chapman, 452 U.S. 3387 (1981) ........... 25

Ruiz v. Estelle, 679 F. 2d 1115 (5th Cir. 1982) ....... 25

Smith v. Bounds, 538 F. 2d 541 (4th Cir. 1975), aff'd,

Bounds v. Smith, 480 U.S. 817 (1977) ............ 13

Straub v. Monge, 815 F. 2d 1467 (11th Cir. 1987) .... 23

Turner v. Safley, 482 U.S. 78 (1987) ............... 14, 25

United States v. Houston, 12 M.J.907 (NMCMR1982) 12

Walker v. Mintzes, 771 F. 2d 920 (6th Cir. 1085) ..... 11, 21

23, 24

Washington v. Davis, 426 U.S. 229 (1976) ........... 14

Williams v. Leeke, 584 F. 2d 1336 (4th Cir. 1978), cert.

SE errs ore 21

Wolff v. McDonnell, 418 539 (1974) .......... 11, 19, 21, 23

No.

SUPREME COURT OF THE UNITED STATES

October Term, 1989

GrorceE W. Wiison, Et Al, - - - Petitioners,

Pat CANTERINO, A/K/A

Pat Wiuutams, Et Al, - - - Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioners, George Wilson, et al., respectfuliy

pray that a Writ of Certiorari issue to review the judg-

ment and Opinion of the United States Court of Ap-

peals for the Sixth Circuit entered in the above titled

proceeding on Apri! 10, 1989. Petition for rehearing

en bane was denied June 22. 1989.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth

Circuit has not been reported; it is reprinted in the

appendix hereto pages 2a-l2a, infra.

The memorandum decision of the United States

District Court for the Western District of Kentucky

(Johnstone, E.H.), dated July 26, 1982 is reported at

546 F. Supp. 174 (W.D. Ky. 1982) and relevant por-

tions are reprinted in the appendix hereto, pages 36a-

45a, infra.

The memorandum decision of the United States

District Court for the Western District of Kentucky

(Johnstone, E. H.), dated February 14, 1983, is re-

ported at 562 F. Supp. 106 (W.D. Ky. 1983) and is

reprinted in the appendix hereto, pages i9a-35a, infra.

The memorandum decision of the United States

District Court for the Western District of Kentucky

(Johnstone, E. H.), dated September 18, 1986, is re-

ported at 644 F. Supp. (W.D. Ky. 1986) and is re-

printed in the appendix hereto, pages 13a-17a, infra.

After a four-week bench trial challenging the total

conditions of the Kentucky Correctional Institution

for Women [hereinafter KCIW] at Peewee Valley,

Kentucky before the United States District Court for

the Western District (E.H. Johnstone) the district

court entered a memorandum decision on July 26, 1982.

Canterino v. Wilson, 546 F. Supp. 174 (W.D. Ky.

1982).

In its 1982 order the court addressed access to the

courts and concluded that the female inmates’ access

had been inadequate in the past and was not com-

parable to that provided the male inmates incarcerated

at Kentucky State Penitentiary and the Kentucky

State Reformatory [hereinafter KSP and KSR] as

provided in a 1980 federal consent decree." This con-

1Kendrick v. Bland, 541 F. Supp. 21, 34-35 (W.D. Ky. 1981).

[Portions of the consent decree regarding visitation at KSR were

reviewed by this Court last term. Kentucky Dept. of Corrections

v. Thompson, 109 Set. 1904 (1989).]

clusion was based on a review of the resources avail-

able at KCIW and not based upon any evidence that

any member of the class was unable to receive any

needed legal services for procedures inside the institu-

tion or for any other purpose. (App. 36a-45a).

In order to remedy this disparity and past inade-

quacy the court directed defendants: 1) to provide a

law library identical to that provided male inmates

at the KSP and KSR pursuant to the relevant pro-

vision of the 1980 consent decree; 2) to substantially

increase the amount of non-program hours for access

to the law library; and 3) to provide the equivalent of

at least one half-time attorney who would assist female

inmates in all areas including habeas corpus and all

other civil matters in which they have a demonstrated

need.

Defendants requested the court to reconsider di-

recting defendants to hire a half-time attorney on the

grounds that it was not constitutionally required and

no such assistance was provided at any male institution

including those operating under the consent decree.

The Defendants did not object to any other provision

-of the remedial order regarding access to courts. Even

though identical resources had been made available as

ordered, on February 14, 1983, the district court denied

the relief sought by defendants.

On September 17, 1986, over four years later, the

district court issued its final memorandum opinion and

order concluding that in order to provide meaningful

access to the courts for female inmates at KCIW and

to remedy a past inadequacy and disparity (pre 1983),

the state must provide not only the identical resources

afforded the male inmates at KSP and KSR under a

1980 consent decree but the state must also hire a half-

time attorney to assist and train female inmates in any

demonstrated legal need.

On defendants’ appeal, the Sixth Circuit Court of

Appeals on April 10, 1989, entered’ a judgment and

opinion affirming the order. (App. 2a-12a).

A petition for en banc rehearing was denied on June

22, 1989. (App. la).

JURISDICTION

The jurisdiction of this court to review the judg-

ment of the Sixth Circuit is invoked under 28 U.S.C.

1254(1).

STATEMENT OF THE CASE

This appeal concerns an equal protection and due

process question arising from a prison conditions suit

filed by the female offenders incarcerated at KCIW.

On October 31, 1980, the plaintiff class filed a com- -~

plaint challenging the totality of the conditions at

KCIW., On February 24, 1982, plaintiff class filed

their second amended complaint again challenging the

totality of the conditions at the institution, adding new

claims unrelated to the questions presented today. With

respect to access to courts, plaintiffs complained that

inmates at KCIW did not have adequate access to

“Docket #3, 10/31/80.

. . ie

courts because the law library was inadequate and in-

ferior to the resources available to male prisoners.*

The class sought a declaratory judgment and injunc-

tive relief.

Subsequent to a four-week trial in April and May

of 1982, the district court entered a memorandum opin-

ion and order addressing all conditions and all claims

tried before the court. Canterino v. Wilson, supra.

In its 1982 order the court found when the lawsuit

was initiated in October of 1980 the law library was

woefully inadequate, but, concluded that after the suit

was filed significant improvements had been made.

At the time of trial in 1982, the law library was only

missing some of the books provided for in a 1980 con-

sent decree which resolved a conditions suit at two male

institutions.* (App. 39a-40a). The court found dis-

parities at KCIW with respect to the hours the law

library was open during non-program time as well as

access to an attorney from the Office of Public Ad-

8Docket #97, 2/24/82.

4The consent decree was approved by this same district judge

in May 1980 only six months prior to the initiation of this action.

Under the terms of that consent decree implementation of the

majority of the terms was not required until November 1980, un-

jess otherwise provided. The law library did not have to be

updated until August 1980, two months before this suit was filed.

Kendrick v. Bland, 541 F. Supp. 21-22 [§ 1.A], 34-35, 47 (W.D.

Ky. 1981).

vocacy, again citing the 1980 consent decree as its

benchmark for comparison.’

As a result of the court’s finding a past inadequacy

and-disparity between male and female inmates with

respect to access to the courts in 1982 the district court

concluded :

As noted in the findings of facts, defendunts have

made substantial progress in bringing their law

library into compliance with minimum standards.

Here again, however, there is still a substantial

disparity between the resources available to women

inmates and those provided for male inmates un-

der § 8 of the Kendrick and Thompson Consent

Decree. To bring access to courts to Constitu-

tional parity, defendants must 1) supply a library

equivalent to those required for males at KSP and

KSR, 2) substantially increase the amount of non-

program time the library is open, and 3) provide

the equivalent of at least one half-time attorney,

who will assist inmates in all areas, including

habeas corpus and other civil matters, in which

they have a demonstrated need. These minimal

steps are required by both the equal protection

clause and the decision of the — Court in

Bounds vy. Smith, 430 U.S. 817, . Ct. 1491,

5As acuveledael by the dissent (Guy), the Office of Public

Advocacy assists indigent inmates in pre-and post-conviction cases

pursuant to Kentucky Revised Statutes Chapter 31 and is not

under Corrections’ jurisdiction/control for any purpose.

The district court acknowledged the statutory authority of Office

of the Public Advocacy in its 1983 opinion, yet appears to have

found Corrections’ defendants accountable for disparities relating

to services provided by that office. (App. 25a).

L. Ed. 2d —- (1977). (App. 40a). [emphasis

added ].

On that same date the court entered an order in

conformity with its opinion. (App. 41a-45a).

A timely notice of appeal and motion to stay were

filed.” Subsequent to the entry of this 1982 order court

conferences were conducted to resolve, if possible, de-

fendants challenge to that portion of the remedial order

directing defendants to hire a half-time attorney. In

an attempt to resolve the challenge, the court ordered

supplemental briefs.’

On February 14, 1983, after reviewing the supple-

mental briefs the district court entered a second order

concluding the hiring of a half-time attorney was re-

quired by the Equal Protection Clause and the decision

of this Court in Bounds y. Smith, 430 U.S. 817, (1977).

In its order the district court determined:

. since the filing of this action, defendants are

commended for their significant efforts to improve

the resources of the KCIW law library. In addi-

tion, the availability of the library has been ex-

tended to fifteen hours on [of] non-program time

per week, the minimum imposed by this court’s

order July 26, 1982. (App. 21a).

The court ruled that even though the law library and

its hours had been expanded as ordered and even

though trained inmate law clerks were available as well

as an attorney from the Office of Publie Advocacy to

®Docket #206, 207, 8/3/82.

7Docket #223, 10/22/82.

assist in criminal matters, these tools were still insuffi-

cient to provide meaningful access without the hiring

of the half-time attorney. Primarily because of a his-

tory of a lack of self help and access to experienced

writ writers female inmates had an entitlement to pri-

vate counsel. (App. 19a-36a). The court directed de-

fendants to submit a plan providing for the hiring of

a half-time attorney. With objection the defendants

submitted a plan for private counsel assistance while

at the same time not waiving their right to appeal.

Defendants continued te object to the hiring of a

half-time attorney through appropriate motions. Con-

ferences were conducted and additional briefs were

again ordered by the court permitting additional proof

by affidavit.®

The supplemental information provided the court

demonstrated 1) female inmates had the identical law

library available to male inmates as required by the

1980 consent decree, 2) the number of female inmate

legal aides had been increased, and, 3) the female

legal aides received the same legal aide training as

required by the 1980 consent decree. Further, of the

legal aides then available at KCIW, one had 17 years

experience in the legal field, an AA degree and addi-

tional college credits earned while incarcerated; one

had a high school diploma with three semesters of

college, and one had received a G.E.D. and completed

8Docket #514, 7/23/85.

two semesters of college while incarcerated at KCTW

achieving a GPA of 3.3."

After a review of the additional information on

September 15, 1986, the district court issued its final

order and concluded: ‘‘. . . in order to provide mean-

ingful access to the female inmates at KCIW, the state

should provide the same opportunities accorded to the

male inmatts at other prisons.’’ (App. 17a). The

court determined the ‘‘same opportunities’’ could be

achieved only by providing legal assistance through a

half-time attorney. The court ruled such a remedy

was necessary because past inadequate resources and

disparities had prevented female inmates from gain-

ing experience comparable to that available to the male

inmates through the male inmate writ writers. (App.

17a).

Defendants were again directed to hire a part-time

attorney initially for eighteen mouths to ‘‘assist and

train the female inmates in all areas of demonstrated

legal need’’. (App. 17a)

On appeal defendants challenged this order because

it constituted an overbroad and intrusive remedy and

was improper both under the Equal Protection Clause

and the Due Process Clause as set out by this Court

under Bounds v. Smith, 480 U.S. 817 (1977).

On appeal the Sixth Circuit recognized no class

member testified she had wanted any legal services

she had not been able to receive. (App. 3a). In addi-

tion, both courts below recognized that male inmates

*Docket #338, 10/3/84.

in Kentucky did not have private counsel to assist them

in legal matters. Both courts below did acknowledge

that attorneys from the Office of Public Advocacy, pur-

suant to a separate Kentucky statutory scheme, pro-

vided services for criminal matters to all indigent male

and female inmates.”

The Sixth Circuit found no abuse of discretion even

when there was no evidence of a denial of access to

the courts to the class as a whole or to any member

standing alone. (App. 3a). Although the remedy was

to correct an equal protection violation the Sixth Cir-

cuit affirmed without requiring any proof of an intent

to discriminate against the female offenders. (App.

12a).

The Sixth Circuit did recognize there were no re-

cent appellate court decisions but for an earlier decision

of its own addressing the application of the Equal Pro-

tection Clause in a female penal facility. In that opin-

ion it had concluded the Equal Protection Clause does

not require equality of treatment but parity. Glover

v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979), aff’d

sub nom. Cornish v. Johnson, 774 F. 2d 1161 (6th Cir.

1985) (mem.). Yet in this instance the Sixth Circuit

affirmed an order requiring more than equality.

10The district court initially concluded, however, that the serv-

ice provided at KCIW by the Office of Public Advocacy was not

comparable to that offered the male inmates at KSP and KSR

based on an hours per inmates ratio, not on whether services needed

were provided. (App. 25a-40a).

Even the Office of Public Advocacy was not named as a de-

fendant the district court found that the state defendants did not

explain this disparity. (App. 25a). (see ftn. 5).

The Sixth Circuit also recognized that neither the

majority of the circuits nor this Court has not man-

dated that all legal resources be provided inmates in

order to provide meaningfu! access. Yet in this case

affirmed an order requiring the provision of all legal

resources without evidence of a denial of access or an

intent to discriminate.

A petition for rehearing en bane was filed. De-

fendants argued that the opinion was contrary to the

decisions of this Court, in particular, Bounds v. Smith,

430 U.S. (1977), Wolff v. McDonnell, 418 U.S. 539,

(1974) and Johnson vy. Avery, 393 U.S. 483 (1969).

Defendants also argued the opinion conflicted with

the Sixth Circuit’s own opinions, in particular, Walker

v. Mintzes, 771 F. 2d 920 (6th Cir. 1985); Kendrick

v. Bland, 740 F. 2d 432 (6th Cir. 1984); Holt v. Pitts,

702 F. 2d 639 (6th Cir. 1983) ; Glover v. Johnson, 478

F. Supp. 1075 (E.D. Mich. 1979), aff’d sub nom. Cer-

nish v. Johnson, 774 F. 2d 1161 (6th Cir. 1985) (mem.).

The petition for rehearing en bane was denied on

June 22, 1989. This petition now follows.

REASONS FOR GRANTING THE WRIT

I. The Sixth Circuit Opinion Extends the Principles of

the Due Process Clause and the Equal Protection Clause

Beyond Constitutional Limits and Conflicts with the

Decisions of this Court, the Sixth Circuit and Other

Circuits.

A. Affirmative sex-conscious relief is not available in equal pro-

tection claims pursued under Section 1983 against state cor-

rections officials without a showing of intent to discriminate.

The question for review is not whether female in-

mates are entitled to meaningful access to the courts

or even whether the Equal Protection Clause entitles

female inmates to comparable treatment. The question

presented is whether the constitution mandates more

than an equality of access to the courts for female than

for male inmates. Defendants ouly challenge that por-

tion of a remedial order which directed affirmative sex-

conscious relief without a showing of an injury or an _

intent to discriminate on the part of state corrections

officials.

The majority of federal court decisions addressing

application of the Equal Protection Clause to inear-

cerated females are at the district court level." .Two

circuit courts have reviewed the question as well.

"McMurry v. Phelps, 533 F. Supp. 742 (W.D. La. 1982),

rev’d on other grounds, Thorne v. Jones, 765 F. 2d 1270 (5th Cir.

1985); United States v. Hoiston, 12 M.J. 907 (NMCMR 1982) ;

Dawson v. Kendrick, 527 F. Supp. 1252 (S.D. W.VA. 1981) ;

Bukari v. Hutto, 487 F. Supp. 1162 (E.D. VA. 1980) ; Batton v.

North Carolina, 501 F. Supp. 1173 (E.D. N.C. 1980); Cornish v.

Johnson, 774 F. 2d 1161 (6th Cir. 1985); Glover v. Johnson, 478

F. Supp. 1975 (E.D. Mich. 1979), aff’d sub nom. Mitchell v. Un-

treiner, 421 F. Supp. 886 (N.D. Fla. 1976); Barefield v. Leach,

No. 1€281 (D. N.M. 1974).

In 1975 the Fourth Cireuit found an unjustified

disparity of access to courts regarding adequate legal

research facilities for female inmates and directed the |

removal of the discrimination. Smith v. Bounds, 538

F. 2d 541, 545 (4th Cir. 1975), aff’d, Bounds v. Smith,

supra. (see ftn. 7).

In 1985 the Sixth Cireuit issued an opinion in which

the facts were almost identical to the present case.

There the Sixth Circuit affirmed an order to provide

female inmates a legal education course comparable

to that provided male inmates in order to train female

inmates to help themselves. As the record there in-

dicated, female inmates had had no access to that pro-

gram either at that time or in the past. Glover v. John-

son, supra,

Generally the circuit and district courts have con-

cluded, without much dispute, the Equal Protection

Clause applies to incarcerated females. However, when

fashioning a remedy to correct any disparity in treat-

ment the courts have recognized the significant and

substantial economic factors involved. By virtue of

statistics alone, the male inmate population far ex-

ceeds the female population.” As a result, most re-

medial orders in this arena have directed ‘‘comparable

treatment’’ or ‘‘parity of treatment’’ for female in-

mates and not the identical treatment provided simi-

larly situated male inmates. ‘his ‘economic reality”’

12As noted by the dissent, two male institutions in Kentucky

housed 2400 inmates while in comparison KCIW housed 150 fe-

males, the entire female population for the system. (App. 1la-12a;

36a, 39a).

analysis certainly comports with this Court’s most re-

cent opinions. Z'urner v. Safley, 482 U.S. 78 (1987) ;

O’Lone v. Shabazz, 482 U.S. 342 (1987).

In all the decisions addressing similar equal pro-

tection claims for incarcerated females the courts found

both unconstitutional conditions and disparate treat-

ment. The remedies directed officials to correet the

constitutional deficiencies as it related to the specific

subject matter. With respect to disparities found by

the courts, the officials were directed to correct those

disparities by providing comparable treatment. No

Court directed affirmative sex-conscious relief in order

to make female felons ‘‘whole”’.

More importantly, this Court has ruled that in

order to be awarded affirmative relief in an equal pro-

tection claim filed under Section 1983 an intent to dis-

eriminate must be established. In Washington v.

Davis, 426 U.S. 229 (1976), this Court held that pur-

poseful intent must be present before there is a viola-

tion of equal protection in a racial setting, and indi-

eated that discriminatory purpose or intent is generally

required in all equal protection cases.

Similarly, other circuits have held that without the

demonstrating discriminatory purpose or intent by a

defendant toward a plaintiff, a section 1983 equal pro-

tection claim must be dismissed. Mescall vy. Burrus,

603 F. 2d 1266, 1271 (7th Cir. 1979), and Gutierrez v.

Mun. Ct. of S.E. Judicial Dist., 838 F. 2d 1031, 1047

(9th Cir. 1988). Purposeful discrimination is an

essential element of an equal protection claim viola-

tion and no sveh intent or purposeful discrimination

was demonstrated by the plaintiffs.

In Massachusetts v. Feeney, 442 U.S. 256 (1979) this

Court applied the Davis’ discriminatory purpose or in-

tent requirement in a Section 1983 claim and stated:

‘Discriminatory purpose, . . . implies more than

intent as violation or intent as awareness or conse-

quence. It implies that the decision-maker, .. .

selected or reaffirmed a particular course of action

at least in part ‘‘because of,’’ not merely ‘‘in spite

of,’’ its adverse effects upon an identifiable group

(citations omitted). Jd. at 279.

As noted by the dissent in the Sixth Cirtnit opinion

no intent to discriminate was ever established, and

therefore, affirmative relief to remedy past disparities

was not justified. In particular, Judge Guy, stated:

As I understand the court’s rationale, it found that

the women inmates had been denied meaningful

access because they had not been provided the same

access as the male inmates. This rationale does

not withstand serutiny. Initially in order to estab-

lish an equal protection violation plaintiffs must

show that the state intentionally discriminated

against women prisoners as a group for no legiti-

mate reason. It is undisputed that prior to the

consent decree entered in the men’s prison case in |

1981, the law libraries at both KSR and KSP were

also ‘‘woefully inadequate’’. Therefore, at most,

the male inmates enjoyed the benefit of a constitu-

tionally adequate library for two years longer than

female inmates at KCIW. Furthermore, as the

court pointed out, in 1982 the Kentucky prison

system housed a minimum of 2400 male prisoners

and only 150 female inmates. Undoubtedly, it is

an historical fact that due to the extremely dis-

proportionate number of male inmates, the men

have, by virtue of longer and more varied experi-

ence, acquired a greater level of expertise in meet-

ing their own legal needs. I glean from this fact

no evidence of any intentional discrimination

against women as a class by the state. Indeed, it

appears that the OPA, which is charged by statute

with providing legal assistance to inmates in crim-

inal matters only, regulates its own hours ‘and it

is not subject to the complete discretion of prison —

authorities in its choice of number of hours of

legal assistance to provide at any one facility.

(App. lla-12a).

In Local 28 Sheet Metal Workers’ Intern. Ass’n v.

EEOC, 478 U.S. 421 (1986) this Court approved the

use of race-conscious affirmative relief. But there the

lower court had an established egregious record of

intentional race discrimination with a deliberate fail-

ure to remedy the violations as previously ordered.

In addition, the affirmative relief was pursuant to a

Title VII claim and the purpose of the relief order

was to eradicate discrimination in an employment

setting.

This case demonstrates no pervasive evidence of

intentional discrimination. In fact, the district court

commended the warden and her staff as being dedicated

and committed to the welfare of the inmates, a fact

the court noted was unusual in most prison conditions

suits. And, the court continued to commend the state

for its efforts in its 1983 and 1986 orders. This case

demonstrated a speedy attempt to eradicate the dis-

parity, not a deliberate refusal to correct. By the time

the parties began trial, in April 1982 defendants had

expanded the law library and its facilities. Soon after

the July 1982 decision, the remaining portions of the

order, but for the hiring of the half-time attorney, were

accomplished. (App. 192-362).

This Court in Bounds, supra, defined the state’s

obligations to provide access to the courts to all inear-

cerated felons. Once again recognizing the economic

realities of such an obligation, this Court left the state

officials an ability to experiment. This deference to

state administrators has long been and continues to be

the hallmark of tnis Court’s opinions addressing the

constitutional obligations of state officials to inearcer-

ated felons.

Deference was not permitted in this ease. The

remedy required more than an equality or an identity

of treatment solely to make up for past disparities, i.e.

a lack of access to experienced writ writers. This af-

firmative sex-conscious relief was ordered even though

the court recognized that in all other respects the legal

resources available to female inmates met minimum

constitutional standards and were equivalent to those

provided male inmates. (App. 40a, 21a).

Even more puzzling is the conflict this decision

creates with the Sixth Circuit’s separate opinion in

this same litigation. One other provision of the 1982

district court order was challenged by defendants on

appeal. Defendants questioned a ruling that a Ken-

tucky statute had created a protected liberty inter-

est to participate in community programs. In a re-

versal, the Sixth Circuit also ruled plaintiffs’ claims

of sexual disparity regarding the implementation of

the community programs were unsubstantiated for

many reasons, one of which was a failure to demon-

strate any injury resulting from the supposed dis-

erimination. Canterino v. Wilson, 869 F. 2d 948 (6th

Cir. 1989).

No such injury was ever required to support the

affirmative remedy now challenged. In fact, the Sixth

Cireuit acknowledged there was no evidence in the

record that plaintiffs were unable to receive any needed

legal services for any procedure inside the institution

or otherwise. Therefore, in the same litigation, in two

separate opinions, the Sixth Circuit applied different

standards of law.

Similarly in Glover, supra, the Sixth Circuit Court

affirmed an order requiring the state to provide a train-

ing program ‘‘comparable’’ to the male program for

female inmates in order to train them to help them-

selves and each other in the presentation of their claims

to the courts.

In this instance sex-conscious affirmative relief was

upheld by the Sixth Circuit without a finding of any

injury and without a finding of purposeful intent to

discriminate. Constitutional principles which limit

remedies for equal protection claims pursued under

Section 1983 have been breached.

II. This Opinion Creates a Conflict with Bounds and Mur-

ray, with the Other Circuits and Within the Sixth

Circuit.

A. The order to hire private counsel exceeds the obligations

of state officials to provide access to the courts.

The order to hire private counsel exceeds the limits

set by this Court in Bounds, supra, and more recently

in Murray v. Giarratano, 109 S. Ct. 2765 (1989). In

addition, the court set no limits or standards by which

this remedy could cease to be an obligation of the state,

but merely ordered private counsel be hired initially

for an eighteen-month period.

Certainly by the time of the 1986 order, some four

years after trial and the 1982 order, the legal resources

available to females were equivalent to their male

counterparts. Even though no proof had been estab-

lished that any class member was unable to get any

needed legal services and only because of the lack of

history of self-help, affirmative sex-conscious relief was

still found necessary.

This court in Bounds, supra, Wolff, supra, and

now Murray, supra, has concluded inmates, while en-

titled to meaningful access, are certainly not entitled

to private counsel especially when other adequate re-

sources are available. Without question, deference

must be given state officials to experiment with differ-

ent options. In Wolff, supra, this court remanded the

question of the adequacy of the Nebraska program

by evaluating two variables: 1) the need for legal

assistance in particular civil rights matters as well as

federal and state habeas petiticns; and 2) whether the

corrections facility is meeting that need. In this case,

no such evaluation took place.

This decision was based solely on a comparison to

those provisions contained in a consent decree. Besides

the adequacy of the law library itself, no other evidence

existed in the record to establish that a need for any

legal assistance was not being met by the program at

KCIW. This included legal needs for institutional

administrative procedures as well as any civil or erim-

inal matters. Surely, the absence of such evidence is

crucial to concluding that any constitutional violation

has occurred whether it is a violation of equal protec-

tion or access to the courts.

This excessive remedy was found to be unjustified

by Judge Guy in his dissent. (App. lla-12d). Cer-

tainly, if death row inmates are not entitled to private

counsel to pursue post-conviction relief, private coun-

sel is inappropriate in this instance when all other legal

resources have been made available. Murray, supra.

Private counsel, as ordered, is not provided any-

where in the Kentucky corrections system. In addi-

tion, counsel’s role is not limited to constitutional law

claims or criminal matters but is only limited to a

‘‘demonstrated legal need’’ which could include any-

thing from handling name changes to tax advice or di-

vorece. Non-incarcerated citizens of the United States

of America do not have such entitlements. Therefore,

as a result of this order, inmates at KCIW have not

only more than that provided all male inmates in the

Kentucky system but more than is available to any non-

incarcerated citizen of the United States. This far

exceeds the principles of federalism and comity which

should temper federal equitable relief when constitu-

tional violations occur. The only constitutional viola-

tion that was established in this trial was a lack of

comparable resources for access to the courts between

male aud female populations. There was no demon-

stration of a denial of access to courts.

More importantly, the court did not set a standard

by which it intended to judge the effectiveness or the

adequacy of private counsel at the conclusion of the

trial period. If this order is judged merely as remedy

for past inadequate access, it is clearly improper.

Bounds, supra; Wolff, supra; Murray, supra. It also

creates a confiict with at least eight other circuits which

the Sixth Circuit recognized in its opinion. These eight

circuits including the Sixth Cireuit,’* have ruled ac-

cess to the courts does not require the hiring of private

counsel when other alternatives and resources are made

available.* All these circuits agree that meaningful

13Walker v. Mintzes, supra; Holt v. Pitts, supra.

M4Cepulonis v. Fair, 732 F. 2d 1 (1st Cir. 1984); Peterkin v.

Jeffes, 855 F. 2d 1021 (3rd Cir. 1988) ; Harrington v. Holshouser,

741 F. 2d 66 (4th Cir. 1984); Williams v. Leeke, 584 F. 2d 1336

(4th Cir. 1978), cert. den’d, 442 U.S. 911 (1979) ; Morrow v. Har-

well, 768 F. 2d 619 (5th Cir. 1985) ; Cruz v. Hauck, 627 F. 2d 710

(5th Cir. 1980); Cruz v. Hauck, 762 F. 2d 1230 (5th Cir. 1985) ;

Campbell v. Miller, 787 F. 2d 217 (7th Cir. 1986), cert. den’d, 479

U.S. 1019 (1986); Kelsey v. Minnesota, 622 F. 2d 956 (8th Cir.

1980) ; Sands v. Lewis, 878 F. 2d 1188 (9th Cir. 1988) ; Lindquist

(Footnote Continued on Next Page)

or adequate access to the courts must be measured in

terms of whether persons are inhibited or prohibited,

as a result of the inadequacies, from filing civil actions

or criminal actions. The legal programs or options are

judged in terms of the extensiveness of the law library,

its availability and any non-professional legal assistance

provided, if any (i.e. trained inmate legal aides or para-

legals from the community).

All of the circuits including the Sixth Circuit have

consistently held when there is a substantive law li-

brary available on a reasonable hourly basis with access

to either trained inmate legal aides or paralegals, there

is no justification or need for the hiring of private

counsel to assist inmates. This result is the same even

if there are illiterate or non-English speaking inmates

at the institution. In no instance have the circuit

courts ordered the hiring of private counsel to make up

for past inadequacies or past denials of access much

less past disparities.

In this instance, the female inmates, at least by

1983, had already been provided the identical legal

resources provided male inmates which included trained

inmate legal aides. There is no justification for the

court’s order directing defendants to hire private coun-

sel to assist those same female inmates solely based on

a, lack of history of self-help. As a result, this order

requires defendants to provide females all legal re-

(Footnote Continued From Preceding Page)

v. Idaho State Board of Corrections, 776 F. 2d 851 (9th Cir. 1985) ;

Hooks v. Wainwright, 775 F. 2d 1433 (11th Cir. 1985) ; Straub v.

Monge, 815 F. 2d 1467 (11th Cir. 1987).

source tools available which has not been required by

this Court. Bounds, supra; Wolff, supra; Murray,

supra.

This decision is in direct conflict with the Sixth

Circuit’s own opinions regarding access to courts. In

1985, the Sixth Circuit ruled that access to courts

need only be ‘‘reasonable and adequate’’, and prisoners ~

must be supplied with some means of obtaining legal

assistance. Such reasonable and adequate access could

be in the form of an adequate law library, jailhouse

lawyers, or outside legal assistance. Walker v. Mintzes,

supra. In that opinion, the Sixth Circuit stated:

We are concerned with the right of access to the

courts not necessarily to a prison law library.

There is no claim made here that any particular

prisoner was actually impeded in their access to

court.

Walker, at 932.

In this case, no claim was made that any inmate

was actually impeded in her access to courts. The

claim was only that the law library was inadequate and

the resources available to females were not comparable

to that provided the male inmates. In Walker, the

Sixth Circuit concluded:

. . . there exists no showing here that any prisoner

has been denied access to the courts by the Michi-

gan prisons’ rules and regulations. These prisons

provide additional assistance to any prisoner who

demonstrates a need, and jailhouse lawyers are

available. We are unable to eonclude under these

circumstances that all inmates are being denied

access within the meaning of Bounds.

Walker, at 932.

Similarly, the Sixth Circuit in a per curiam de-

cision stated there was no one single formula which

constituted access to courts, recognizing that alterna-

tive avenues are just that, alternatives, and that the

choice of those alternatives should lie with the state.

Holt v. Pitts, supra. In Holt, a prisoner’s constitu-

tional right of access to courts could be accomplished

as long as the state provided a prisoner with tools neces-

sary to defend himself:

A prisoner who chooses not to avail himself of

the alternatives provided has no basis—constitu-

tional or otherwise for complaint.

Id. at 640-641.

More importantly, there is no formula by which the

parties, including the court, cau measure the success of

this part-time attorney. There are no limits to the

assistance provided by counsel to constitutional issues

including criminal matters or habeas petitions. Even

though concurring, District Judge Surheinrich wrote

separately to express his concern with the effect of the

affirmative relief imposed by the district court con-

cluding that the remedy seems most likely to result in

‘further proliferation of baseless suits’’ rather than

achieving the intended effect of providing female in-

mates with equa! and constitutionally necessary access

to the ecurts. (App. 10a.) And certainly Judge Guy,

in his dissent, believed the court had gone beyond any

remedies authorized by the facts and evidence presented

as well as the law.

Consequently, to allow this opinion to stand creates

a substantive conflict with this Court, other circuits and

even with the Sixth Circuit regarding access to the

courts.

III, The Principles.of Federalism and Comity Prohibit

Overboard and Intrusive Remedies.

A. This order sets no limits and no standards by which

its effectiveness can be reviewed.

While recognizing the federal equity courts’ author-

ity to fashion appropriate remedies when constitu-

tional violations are found, the relief granted can be

no broader than necessary and must be tempered with

principles of federalism and comity. In addition, great

deference must be granted prison administrators.

O’Lone, supra; Turner, supra; Hewitt v. Helms, 459

U.S. 460 (1983); Rhodes v. Chapman, 452 U.S. 337

(1981) ; Bell v. Wolfish, 441 U.S. 520 (1979) ; Rizzo v.

Goode, 423 U.S. 362 (1976) ; Procunier v. Martinez, 416

U.S. 396 (1974); Presier v. Rodriguez, 411 U.S. 475

(1973). This principle has been consistently applied

by the circuit courts as many district court remedial

orders have been viewed as too expansive or intrusive.”

This limit on the federal equity court has not been

followed here. Arguments I and IT herein have estab-

MRuiz v. Estelle, 679 F. 2d 1115 (5th Cir. 1982) ; Hoptowit v.

Ray, 682 F. 2d 1237 (9th Cir. 1982); Newman v. Alabama, 683

F. 2d 1312 (11th Cir. 1982).

lished no basis under the Equal Protection Clause or the

Due Process Clause for the entry of such an order. A

review of the terms of the order on its face requires a

finding of a violation of the principles of federalism

and comity. The order set no limit on the assistance

of private counsel to civil rights, habeas or criminal

matters. This order mandates counsel to assist in all

demonstrated legal needs. Private citizens have no

such entitlements. In addition, no legal need has ever

been demonstrated by any plaintiff class member.

More importantly, this remedy has no standards by

which the state or any court can determine success.

The parties only know a review will be conducted

within eighteen months, after the remedy begins. This

far exceeds equitable limits and breaches the principles

of comity and federalism. os

Finally, the Sixth Circuit failed to take into ac-

count the good faith history of the defendants whieh

it required in a previous opinion reversing an injune-

tion arising from the 1980 consent decree. Kendrick

v. Bland, 740 F. 2d 482 (6th Cir. 1984). There, the

distriet court had found a patter: and practice -of

brutality and harassment at KSP and as a result, en-

joined specific officers from performing certain func-

tions in the institution. In a reversal, the Sixth Cir-

cuit concluded the findings were not clearly erroneous

but the remedy was not the least intrusive. The Sixth

Cireuit determined that the least intrusive remedy in

that instance was ‘‘particulariy compelling because the

corrections defendants had exhibited a history of eo-

operation and good faith’’ through the comprehensive

consent decree designed to rectify practices and poli-

cies and conduct that had been alleged to have been

unconstitutional. Jd. at 439. The Sixth Circuit stated:

Given this history, it must be assumed that the

state will continue to act in good faith to alleviate

unconstitutional harassment and to comply with

the order enjoining such conduct.

Id. at 439.

In this opinion, defendants were not given that con-

sideration. The record in this case similarly demon-

strated a good faith history as was recognized by the

district court in its commendation of the warden and

her staff and in its subsequent opinions. The record

established the law library was expanded prior to trial

and additional legal services and resources were ex-

panded immediately after the 1982 order.

The order challenged here cannot be justified under

the Equal Protection Clause and the Due Process

Clause nor can it be sanctioned under the principles of

comity and federalism as the least intrusive remedy.

The remedy directing the hiring of private counsel

was in additior to a remedial order requiring the state

to provide the female inmates with resources equal to

those provided the males. That portion of the order

challenged here is an extraordinary order and conflicts

with this Court’s own opinions, those of other circuits

and decisions within the Sixth Circuit itself on same

or similar issues and should be reversed.

CONCLUSION

The defendants urge this Court to consider the rami-

fications of this decision and the possible effect on cor-

rections officials not only in this circuit but throughout

the country when choosing alternatives to provide

meaningful and adequate access to the courts and who

must attempt to treat female inmates comparably even

though a dramatic difference exists in their numbers.

It is important for this Court to review this deci-

sion in order to provide guidance to state prison ad-

ministrators to resolve the equal protection and access

to courts question as well as the limits on remedial

orders.

THEREFORE, Petitioner requests that Writ of Certio-

rari be granted.

Respectfully submitted,

BARBARA W. JONES

Corrections Cabinet

Office of General Counsel

State Office Building

Room 500

Frankfort, Kentucky 40601

Telephone: 502/564-2024

Counsel for Petitioners

APPENDIX

No. 86-6067

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Par Cantertno, Et Al, - - - Plaintiffs-Appellees,

Grorce Witson, Et Al. - - Defendants-Appellants,

Unitep States or America, - - - - Intervenor

ORDER — Filed June 22, 1989

Berore: Guy and Bosas, Circuit Judges; and SuHRHEIN-

ricH*, United States District Judge

The Court having received a petition for rehearing en

bane, and the petition having been circulated not only to the

original panel members but also to all other active judges

of this Court, and no judge of this Court having requested

a vote on the suggestion for rehearing en bance, the petition

for rehearing has been referred to the original hearing

panel.

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition were

fully considered upon the original submission and decision

of the case. Accordingly, the petition is denied. Judge

Guy adheres to his dissent.

Enverep By Orper Or THe Court

Leonard Green, Clerk

*Hon. Richard Suhrheinrich sitting by designation from the

Eastern District of Michigan

NOT RECOMMENDED POR FULL TEXT PUBLICATION

See Sixth Circuit Rule 24.

No. 86-6067

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Pat CanTeRino, a/k/a

Pat Wrap, etal. - - - Plaintiffs-Appellees,

Unirep States or AmernicA - - Plaintiff-Intervenor,

Georce Witson, etal, - - - Defendants-Appellants.

Filed April 10, 1989

BeroreE: Guy and Boces, Circuit Judges; and SunrHern-

RICH, District Judge.*

Per Curiram. This is an appeal from the district court’s

ruling in this prisoners’ class action suit challenging the

conditions of confinement at the Kentucky Correctional

Institute for Women (KCIW). This appeal focuses on

only one aspect of that ruling: the requirement that KCIW

hire a part-time attorney on a temporary basis in addition

to upgrading the prison’s library. The basis for this ruling

was the trial judge’s determination that the legal facilities

and assistance the women had been receiving did not pro-

vide them with minimally adequate access to the courts as

guaranteed by the Constitution, and that the women’s fa-

cilities were not substantially equivalent to those provided

*The Honorable Richard Suhrheinrich, United States District

Judge for the Eastern District of Michigan, sitting by designation.

to male inmates in Kentucky. Canterino v. Wilson, 546 F.

Supp. 174, 216 (W. D. Ky. 1982).

In October 1980, female inmates of KCIW filed suit

challenging a number of the conditions of their confine-

ment, including the library facilities and lack of legal train-

ing and/or assistance. The district judge held a four-week

trial, after which he ordered the defendants to update the

prison library and provide a half-time attorney for the in-

mates. The court ordered the parties te brief the issue of

access to an attorney and legal materials, after which the

court ordered the parties to formulate a plan to provide the

female inmates at KCIW meaningful access to the courts.

The defendants submitted a plan proposing the hiring of

an attorney for 20 hours per week. In July 1982, the dis-

trict judge ordered that such an attorney be hired.

In his opinion, the district judge found that the women

lacked any history of “self-help” in the law. He further

found that the library at KCIW was inadeqnate and that

the prison had to upgrade its materials, extend its hours,

and, in addition, provide the inmates with a half-time attor-

ney to assist them. The court held that these improvements

were necessary to comply with the equal protection clause,

as well as to provide the inmates access to the courts. How-

ever, it should be noted that no inmate testified that they

wanted any legal services that they had not been able to

receive. Further, male inmates in Kentucky do not have

an attorney assigned to their prisons. On the other hand,

the Office of Public Advocacy (OPA) spends 96 hours per

week at one male prison and 120 per week at another, while

their time spent at the women’s prison is limited to two to

three hours every three weeks. Further, the male inmate

legal aides are trained by experienced peers, whereas the

women are given a two-week course, but none of their peers

is experienced in handling habeas petitions or civil rights

suits.

After the court issued its initial order, the defendants

moved for supplemental relief regarding the order requir-

ing that an attorney be hired, arguing that the female in-

mates now received the same legal services as male inmates

in Kentucky. At this point, the library had been updated,

and its open hours had been extended to 15 per week. In

addition, the number of inmate legal assistants had been

increased from one to four. The defendants stressed the

fact that the Kentucky Office of Public Advocacy, a state-

funded legal services agency, provides assistance with

criminal matters and provides an attorney to KCIW for

one half-day every three weeks to assist with civil cases.

In addition, the defendants claimed that the updated library

and inmate legal aides were sufficient to meet the constitu-

tional standard.

The district judge disagreed, and again ordered the

parties to provide the inmates with the equivalent of a half-

time attorney, reasoning that the law library alone was not

sufficient to compensate the women for the lack of a history

of self-help which the male inmates had. Subsequently, in

September 1986, the defendants filed a motion to amend

the earlier orders of the district judge, which motion was

denied. The district judge reiterated his earlier finding

that the prison library alone, even after being updated, was

insufficient to satisfy the right of access to the courts. The

court expressly ordered the defendants to hire a half-time

attorney for eighteen months to assist and train the female

inmates in areas in which they needed assistance. The de-

fendants now appeal.

The standard of review in this case demands that we

give great deference to the factual findings of the district

judge. Kendrick v. Bland, 740 F. 2d 432, 434 (6th Cir.

1984). Although “[dleference to prison authorities is

especially appropriate when state penal facilities are in-

volved,” Newman v. State of Alabama, 683 F. 2d 1312, 1320

(11th Cir. 1982), “district courts have broad discretion to

fashion remedies once constitutional violations are found.”

Hoptowit v. Ray, 682 F. 2d 1237, 1245 (9th Cir. 1982). The

standard, then, is one of abuse of discretion. Id. at 1246.

Ill

In Bounds v. Smith, 430 U. S. 817, 821 (1977), the Su-

preme Court affirmed the Fourth Circuit’s determination

that North Carolina’s library plan “denied women prisoners

the same access rights as men to research facilities.” The

Court began its analysis by stating that “prisoners have

a constitutional right of access to the courts.” IJbid. The

Court then reviewed a number of precedents in which this

principle was held to require that indigent prisoners be

“allowed to file appeals and habeas corpus petitions with-

out payment of docket fees,” fd. at 822 (citing Burns v.

Ohio, 360 U. S. 252, 257 (1959)); that trial transcripts be

provided to indigent prisoners at no cost, Ibid. (citing

Griffin v. Illinois, 351 U.S. 12, 20 (1956)) ; and that counsel

be appointed when necessary to ensure “ ‘a meaningful

appeal.’ ” Id. at 823 (quoting Douglas v. California, 372

U. S. 353, 358 (1963)). The Court explained that the guid-

ing principle in these cases is that “States must ‘assure

the indigent defendant an adequate opportunity to present

his claims fairly.” Ibid. (quoting Ross v. Moffitt, 417 U.

S. 600, 616 (1974)). The Court focused on two prior cases,

Johnson v. Avery, 393 U. S. 483 (1969), and Wolff v. Mc-

Donnell, 418 U. 8. 539 (1974), both of which held that in the

ease of illiterate, indigent prisoners with ut the skills ne-

cessary to present their own cases, their “ ‘constitutional

right to help’ ” could be satisfied by securing the aid of

other, more skilled inmates. Bounds, 430 U. S. at 823-24

(quoting Johnson, 393 U.S. at 502 (White, J., dissenting) ).

However, the Court noted that neither case had ruled out

the possibility that further measures would be necessary

to provide truly meaningful access to the courts to inmates.

Id. at 824. Thus, the Court held

that the fundamental constitutional right of access to

the courts requires prison authorities to assist inmates

in the preparation and filing of meaningful legal papers

by providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law.

Td. at 828.

In the present case, the prison officials argue that the

above holding supports their position that prisoners must be

provided with either a library or legal assistance, but not

both. However, in Bounds itself, the Court discussed a

number of alternatives to providing an adequate law library,

stating that although “a legal access program need not in-

clude any particular element ... [a]ny plan... must be

evaluated as a whole to ascertain its compliance with con-

stitutional standards.” \/d. at 832. In other words, the ap-

pellants are correct that it is not always necessary to pro-

vide both a library and legal assistance; however, they are

incorrect in their assertion that a court may not require

such a combination of elements. In fact, in Bounds, despite

the availability of “jailhouse lawyers, the Court found that

an adequate library “or other forms of legal assistance”

were necessary to provide constitutionally adequate access

to the courts. Id. at 825. Thus, the existence of a law li-

brary, however adequate, does not per se eliminate the

necessity for further measures to protect the right of ac-

cess to the courts.

We are aware that other courts have found that, in par-

ticular sitnations, both a library and legal assistance were

not necessary. In Kelsey v. State of Minnesota, 622 F. 2d

956, 958 (8th Cir. 1980), the Eighth Circuit found that a

particular priscner’s legal needs were met by existing fa-

cilities. However, that court also stated that every pro-

gram “must be evaluated on its own to establish, first, what

the prisoners’ needs for legal assistance are and, second,

whether those needs are being met.” Jbid. (citations omit-

ted).

In Cepulonis v. Fair, 732 F. 2d 1, 5-6 (1st Cir. 1984),

the First Circuit held that it was error for the district

court to have ordered beth the creation of a satellite library

and the creation of a law student assistance program. In

Campbell v. Miller, 787 F. 2d 217, 227-28 (7th Cir. 1986),

the Seventh Circuit held that restricted access to library

facilities for maximum security inmates did not deprive

the inmates of meaningful access to the courts. The court

relied heavily on the Ninth Circuit’s opinion in Lindquist

v. Idaho State Board of Corrections, 776 F. 2d 851, 858 (9th

Cir. 1985), in which that court stated that “[t]he fact that

an inmate must wait for a turn to use the library does not

necessarily mean that he has been denied meaningful access

to the courts.” The Lindquist court held that a prison’s

adequate library plus well-trained inmate law clerks were

sufficient te meet constitutional standards and, thus, ap-

pointed counsel was not necessary. Jd. at 856. A similar

result was reached in Hooks v. Wainwright, 775 F. 2d 1433,

1438 (11th Cir. 1985), where the Eleventh Circuit held that

the Constitution does not require appointment of counsel

for inmates who were challenging the conditions of their

confinement.

On the other hand, in Morrow v. Harwell, 768 F. 2d 619,

623 (5th Cir. 1985), the Fifth Circuit held that a bookmobile

check-out system plus law student assistance did not meet

constitutional standards. The court stated that, “[i]n the

absence of some sort of direct legal assistance, . . ., the

inmates must be given access to a library. . . .” Ibid.

Further, in Wade v. Kane, 448 F. Supp. 678, 685 (E.D. Pa.

1978), aff'd, 591 F. 2d 1338 (3d Cir. 1979) (mem.), the dis-

trict court held that law student assistance did not com-

pensate for the inadequacy of the prison’s law library, and

that the closing of the prison’s Law Clinic coupled with the

library’s inadequacy amounted to a constitutional violation.

This court has held, in the past, that when a prisoner is

afforded assistance of counsel, and law books were avail-

able to the inmate, no constitutional violation had occurred.

Holt v. Pitts, 702 F. 2d 639, 640-41 (6th Cir. 1983). Fur-

ther, in Glover v. Johnson, 478 F. Supp. 1077, 1096 (E.D.

Mich. 1979), aff'd sub nom Cornish v. Johnson, 774 F. 2d

1161 (6th Cir. 1985) (mem.), this court affirmed the dis-

trict court’s decision holding that the law library at the

women’s prison was adequate even though it was smaller

than the library available to male inmates. However, the

district court further stated that “the provision of satis-

factory law library does not settle this issue.” Ibid. The

court thus went on to reject the contention, also made here

by the prison officials, that either a library or legal assist-

ance is required, but not both, stating that this was an

unduly narrow reading of Bounds. Ibid. Thus, the court

required that legal assistance and training was necessary

to satisfy the women inmates’ right of access to the courts.

Id. at 1097.

The cases in other jurisdictions which appear to con-

flict with our decision here are distinguishable from this

case for one important reason: none involved a finding by

the district court that there was an equal protection vio-

lation in that women inmates had less satisfactory access

to the courts than male inmates. Kelsey, 622 F. 2d 956 (8th

Cir. 1980) ; Cepulonis, 732 F. 2d 1 (1st Cir. 1984) ; Campbell,

787 F. 2d 217 (7th Cir. 1986) ; Lindquist, 776 F. 2d 851 (9th

Cir. 1985); Hooks, 775 F. 2d 1433 (11th Cir. 1985). That

distinction is significant. The fourteenth amendment “re-

quires, even in the context of prison conditions, that any

such disparity [between the treatment of male and female

inmates] must ‘serve important governmental objectives’

and must be ‘substantially related to achievement of those

objectives.’” Bukhari v. Hutto, 487 F. Supp. 1162, 1171

(E.D. Va. 1980) (quoting Craig v. Boren, 429 U.S. 190, 197

(1976)). Further, “the cost of protecting a constitutional

right cannot justify its total denial.” Bownds, 430 U.S. at

825.

Here, the district judge found as fact that there was

a disparity between male and female inmates’ access to the

courts. The judge further determined that, to cure that

disparity, women inmates needed legal assistance and train-

ing on a part-time, temporary basis. The district judge

ordered only that this plan be implemented on a trial basis,

for only eighteen months. The prison officials do not argue

that this disparity serves an “important governmental ob-

jective.” They argue only that the district judge abused

his discretion in basing his finding of a disparity on the

women inmates’ lack of a history of self-help. However,

the district court in Glover, as affirmed by this court, based

its holding that women inmates required legal assistance

on its finding that male inmates had the benefit of “experi-

enced writ writers” among them while women inmates

“have not yet developed this expertise. . . .” 478 F. Supp.

at 1097. We did not find error in the use of this reasoning

in Glover, nor do we find error here.

On the whole, then, we find no reason to afford the

district judge here any less deference than was afforded

the district judge in Kendrick v. Bland, 740 F. 2d 482, 434

(6th Cir. 1984). Where, as in Kendrick and the instant

case, the district court has had “extended involvement and

intimate understanding of the facts and issues joined in

this action,” that judge’s determinations must be given

great deference. Ibid. Here, the district judge’s extremely

detailed and earefully drafted opinion, 546 F. Supp. 174

10a

(W.D. Ky. 1982), evinces his “extended involvement and

intimate understanding” of the issues, both legal and fac-

tual, involved in this case. We find no basis for distributing

his findings and conclusions. Thus, we AFFIRM.

Srvuruerneicn, District Judge, concurring,

I am in substantial agreement with Judge Bogg’s opin-

ion but write separately to emphasize my feelings on the

affirmative relief imposed by the district court. During the

past four years, I have witnessed an ever-expanding vol-

ume of meritless cases generated by prisoners, many pris-

oners having apparently made a hobby of writ-writing.

The affirmative relief ordered by the district court seems

most likely to result in a further proliferation of baseless

suits, rather than achieving the intended effect of provid-

ing female inmates with equal and constitutionally neces-

sary access to the courts. However, our review here is

limited‘to a determination of whether the district court

abused its discretion in fashioning the instant remedy.

Under these facts, I camnot find that the district court

abused its discretion. Accordingly, I concur.

Guy, Circuit Judge, dissenting.

The district court found that the provision of attorney

assistance at KWIC was essential “to establish equality of

access among the female and male inmate populations.”

Canterino v. Wilson, 644 F. Supp. 738, 741 (W.D. Ky. 1986).

Plaintiffs argue on appeal, and the covrt below agreed,

that female inmates have’ been denied equal protection of

the laws because “[h]istorically, women inmates have not

gained the experience of their male counterparts in pro-

viding legal assistance to other inmates as ‘writ-writers’

or ‘jailhouse lawyers’ because of the unavailability for many

years of sufficient legal resources.” Canterino v. Wilson,

562 F. Supp. 106, 112 (W.D. Ky. 1983). As additional

support for its finding of an equal protection violation, the

district court noted that:

lla

“KSP [Kentucky men’s maximum security prison] has

three full-time [OPA] attorneys serving around 900

inmates,” or one attorney hour per about seven inmates

per week. “KSR [Kentucky men’s medium security

prison] has two full-time attorneys and one part-time,

serving 1500 inmates a total of 96 attorney hours per

week,” or about one attorney hour per fifteen inmates

per week. There are about 150 women inmates in-

earcerated at KCIW. The state offered no basis for

providing the women at KCIW with only one attorney

hour per 150 inmates per week.

562 F. Supp. at 111 (citations omitted).

As I understand the court’s rationale, it found that the

women inmates had been denied meaningful access because

they had not been provided with the same access as the

male inmates. This rationale does not withstand scrutiny.

Initially, in order to establish an equal protection vioiation,

plaintiffs must show that the state intentionally discrim-

imated against women prisoners as a group for no legiti-

mate reason. It is undisputed that, prior to the consent

decree entered in the men’s prison case in 1981, the law li-

braries at both KSR and KSP were also “woefully inade-

quate.” Therefore, at most, the male inmates enjoyed the

benefit of a constitutionally adequate library for two years

longer than female inmates at KCIW. Furthermore, as the

court pointed out, in 1982, the Kentucky prison system

housed a minimum of 2400 male prisoners and only 150 fe-

male inmates. Undoubtedly it is an historical fact that, due

to the extremely disproportionate number of male inmates,

the men have, by virtue of longer and more varied experi-

ence, acquired a greater level of expertise in meeting their

own legal needs. I glean from this fact no evidence of any

intentional discrimination against women as a class by the

state. indeed, it appears that the OPA, which is charged

12;

by statute with providing legal assistance to inmates in

criminal matters only, regulates its own hours and is not

subject to the complete direction of the prison authorities

in its choice of the number of hours of legal assistance to

provide at any one facility.

Plaintiffs attempt to justify the court’s “affirmative sex-

conscious relief” under the rationaie of the Supreme Court’s

holding in Local 28 Sheet Metal Workers v. EEOC, 478 U.S.

421, 106 S. Ct. 3019 (1986), in which the Court approved

the use of race-conscious aflirmative relief without requir-

ing that only identifiable victims of past discrimination

be benefited. That case is inapposite for two reasons.

First, courts faced with evidence of intentional race or

sex discrimination fashion relief in this area under the

statutory directive of Title VII and the longstanding and

consistent federal policy to eradicate such discrimination

in the employment context. Second, the Court found the

race-conscious remedy appropriate in that case explicitly

because the union’s discriminatory practices were partially

longstanding and egregious. 478 U.S. at 476; 106 S. Ct.

at 3050.

In contrast, this case presents no issue of pervasive

discrimination nor any justification for imposing an “af-

firmative” remedy for past recalcitrance. Our sole ques-

tion here is whether the state is required, under the four-

teenth amendment’s equal protection clause, to assist female

inmates in achieving the identical level of access as is en-

joyed by male inmates, even though male inmates’ access

may be characterized as “more meaningful” than is con-

stitutionally required. I would answer that question in the

negative and reverse.

l3a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0545-L(J)

Pat Canterino, et al, - - - - - Plaintiffs,

AND

Unirep States oF AMERICA -~ - Plaintiff-Intervenor,

Grorce WILson, et al., - - - - Defendants. 7

MEMORANDUM — Filed September 18, 1986

This case is before the court en defendants’ motion to

alter or amend this court’s July 26, 1982 and February 10,

1983 orders concerning the access to the courts issue.

Plaintiffs, inmates at the Kentucky Correctional Insti-

tution for Women (KCIW), instituted this action in 1981

for relief concerning conditions of their confinement, dis-

parate treatment of men and women incarcerated in Ken-

tucky prisons, and denial of vocational training and edu-

cational opportunities. This motion is limited to the issue

of access to the courts.

After a four-week trial, this court held that substantial

disparity existed between legal resources available to fe-

males at KCIW and those provided to male inmates under

§ 8 of the Consent Decree in Kendrick v. Bland, 541 F.

Supp. 21 (W.D. Ky. 1981). Canterino v. Wilson, 546 F.

Supp. 174 (W.D. Ky. 1982). Specifically, this court found

that females at KCTW only recently were provided mini-

| —

l4a

mal access to adequate legal resources, and also lacked any

history of self-help in the legal field. Therefore, this court

ordered defendants to suuply KCIW law labrary facilities

equivalent to those provided to male prisoners at Kentucky

State Reformatory (KSR) and Kentucky State Peniten-

tiary (KSP), substantially increase the amount of non-

program time the library is open, and provide the equiva-

lent of a half-time attorney to assist inmates in all areas

of demonstrated need. The court held these minimal steps

necessary to comply with the equal protection clause and

with Bounds v. Smith, 97 S. Ct. 1491 (1977). 546 F. Supp.

at 216. |

Following that decision, defendants moved for supple-

mental relief with respect to the court’s attorney assistance

requirement for the female inmates. Canterino v. Wilson,

562 F. Supp. 106 (W.D. Ky. 1983). In reiterating its

earlier decision, this court noted that defendants failed to

meet their burden of showing that legal needs of prisoners

were served by the existing programs, and ordered defend-

ants to formulate a plan which “must in some way provide

for identification of either paid or volunteer attorneys or

paralegal advisors within the meaning of Bounds, . . .”

562 F. Supp. at 112.

This court also noted that although the law library was

complying with earlier established standards as a source

of legal information, (Canterino, 546 F. Supp. at 216), the

physical conditions of and access to the library were in-

adequate. In addition, this court found that the training

provided to inmate legal aides was insufficient because it

was limited to legal research and did not teach the type of

research and writing skills necessary to prepare legal briefs

in civil matters. Canterino, 562 F. Supp. at 110.

In conclusion, this court again noted that its decision

was based on the disparity of access provided to female and

male inmates:

Seis

l5a

Historically, women inmates have not gained the ex-

perience of their male counterparts in providing legal

assistance to other inmates as “writ-writers” or “jail-

house lawyers” because of the unavailability for many

years of sufficient legal resources. . . . The actions

pending before this Court reflect the absence of effee-

tive inmate writ-writers at KCIW in comparison to the

State’s male institutions. . . . The services of an

attorney is justified, not because there is or is not a

similar program offered at the men’s prisons, but be-

cause, unlike the male population generally, the women

do not have a history of self-help.in the legal field; the

evidence tends to show that until recently they have

had little access to adequate legal resources.

562 F. Supp. at 112.

Defendants now state that they will not implement the

attorney assistance program voluntarily, but only upon

order of the court. Although this court construes its de-

cision in 1983 as such an order, it has reviewed the renewed

arguments of both sides with respect to this matter. De-

fendants argue that a half-time attorney will “do the work

for the inmates and not take on the role of a teacher,” and

propose, instead, an expansion of the Office of ?ublic Ad-

vocacy legal training program. Defendants also cite two

recent court decisions as construing Bounds in support of

their position, Lindquist v. Idaho State Board of Correc-

tions, 776 F. 2d 851 (9th Cir. 1985), and Hooks v. Wain-

wright, 775 F. 2d 1433 (11th Cir. 1985).

In Lindquist, the court held that Bounds does not re-

quire a state to provide inmates with both access to a com-

petent law library and legal assistance, The court noted

that several experienced writ-writers were present within

the Idaho prison system, and that the system provided

videotape training courses for inmate law clerks. 776 F. 2d

l6a

at 856-7. Siniilarly, in Tooks, the court reversed a Florida

district court which ordered that state’s prison system to

provide legal services, after noting the inadequacies of the

law library system. The appellate court stated that dis-

trict courts which interpret Bounds as mandating legal

assistance are in error, and that if inmates are not consti-

tutionally entitled to the assistance of counsel in 41 U.S.C.

§ 1983 cases [see Hardwick v. Ault, 517 F. 2d 295, 298 (Sth

Cir. 1975) |, no rational basis exists on which to mandate

counsel for prisoners considering, filing or pursuing such

claims. 775 F. 2d at 1498. [In support of denial of a mo-

tion for rehearing en banc, the court stated that the earlier

opinion was an interlocutory appeal on the legal assistance

issue alone, and that no decision had been made concern-

ing the adequacy of the law library. Two dissenting judges

stated that the earlier opinion misinterpreted Bounds and

failed to recognize that its issue was more narrow, given

the alleged law library inadequacies. Hooks v. Wainwright,

781 F. 2d 1550, 1551 (11th Cit 1986)| This court agreed

with the dissenting judges, and declines to follow the above

cases for reasons which follow.

In Bounds, the Supreme Court reaffirmed the existence

of a constitutional right to meaningful access to the courts,

which requires states to provide inmates with adequate

law libraries or adequate assistance from legally-trained

persons. 978. Ct. at 1498. In so holding, the court noted

that although some states have established a combination

of both, a legal access program does not require any of

the particular elements named, but rather, must be evalu-

ated as a whole to ascertain compliance with constitutional

standards. 978. Ct. at 1499-1500. An remand, the district

court later held that, absent proof of an adequate law li-

brary or inmate paralegal training program, the state was

required to submit a plan for providing some form of legal

17a

assistance . Smith v. Bounds, 610 F. Supp. 597, 606 (D.C.

N.C. 1985).

This court finds its earlier decisions consistent with

Bounds and distinguishable from Lindquist and Hooks. In

ordering the state to provide a plan for inmate legal assist-

ance, this court relied, not only on Bounds, but on the Four-

teenth Amendment equal protection guarantee. Thus, this

court held that in order to provide meaningful access to

the courts to the female inmates at KCIW, the state should

provide thé same opportunities accorded to male inmates

at the other prisons. In order to provide equal opportuni-

ties in this situation, inmate legal assistance is necessary,

since the past unavailability of legal resources has pre-

vented females from gaining legal assistance experience

comparable to that of the male writ-writers.

This decision is consistent with Bounds, in that this

court has determined that the existing law library facilities

alone are not sufficient to provide meaningful access. <Al]-

though the state’s substitute proposal of additional legal

training — such as that found in Lindquist — is a workable

idea for the future, that proposal alone is insufficient to

establish equality of access among the female and male in-

mate populations.

Plaintiffs propose that a half-time attorney be hired on

a short-term basis (ie: 18 months) in order to evaluate

the program’s effectiveness. This court agrees with this

proposal and further suggests, in order to alleviate defend-

ants’ concerns, that the program include inmate training

anc assistance.

An appropriate order shall accompany this memoran-

dum.

Dated: 9-15-86

(s) Edward H. Johnstone

Edward H. Johnstone, Chief Judge

United States District Court

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0545-L(J)

Pat CanTERINo, et al, - - - - - Plaintiffs,

AND

Unirep States oF AMERICA” - | . Plaintiff-Intervenor,

Grorce WILSON, et al., - - - - Defendants.

ORDER

In accordance with the memorandum opinion this date

entered,

Ir Is OrnpereD:

1. Defendants’ motions to alter and amend this court’s

earlier decisions rendered July 26, 1982 and February 10,

1983 are DENIED;

2. In accordance with those opinions, defendants shall

hire a half-time attorney for an initial eighteen-month per-

iod to assist and train the female inmates in all areas of

demonstrated legal need.

Dated: 9-15-86

(s) Edward H. Johnstone

Edward H. Johnstone, Chief Judge

United States District Court

19a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0545-L(J)

Pat CanTertno, et al, - - - - - #£Plaintiffs,

Grorce Witson, et al., - 7 - - Defendants.

February 14, 1983.

MEMORANDUM OPINION

JOHNSTONE, District Judge.

This matter is before the Court on Defendant Kentucky

Department of Correction’s post-trial motion for supple-

mental relief from this Court’s Order entered on July 26,

1982. A four week bench trial was held and judgment rend-

ered in favor of the plaintiff-class, women inmates at the

Kentucky Correctional Institution for Women (KCIW).

Canterino, et al. v. Wilson, et al., 546 F. Supp. 175 (W.D.

Ky. 1982).

At a compliance conference conducted by the Court to

settle the litigants’ differences on October 13, 1982, two

contested issues remained unresolved. First, whether ad-

ministrators of KCIW must provide attorney-assistance

for criminal and civil matters in order to meet their con-

stitutional duty to assure that all inmates incarcerated at

KCIW are provided meaningful access to the courts.

Second, whether administrators of KCIW, have created a

constitutionally protected liberty interest in favor of the

20a

inmates requiring that a corrections officer may only issue

an incident report if he or she personally witnesses an alleg-

ed institutional rule infraction. The Court requested the

parties submit post-trial memoranda indicating their re-

liance on trial testimony and the applicable law on these

two issues. Because of the length of the trial proceedings,

a complete transcript is not available at this writing. How-

ever, having thoroughly reviewed the evidence, the memo-

randa of counsel, and the-applicable law, the Court makes

the following findings and conclusions.

I. ACCESS TO THE COURTS

Paragraph five of the Court’s Order entered July 26,

1982, provides that, in addition to improvements required

for the institution’s law library: "

Defendants [Kentucky Department of Corrections]

shall make the services of an attorney available to in-

mates at KCIW on a part-time basis for at least twenty

hours per week.

Defendants’ memorandum sets forth the position that the

inmates at KCIW have the same legal services as do all

Kentucky male inmates in the system. They also state that

the Kentucky Office of Public Advocacy (OPA) provides

assistance with criminal matters for all Kentucky inmates

and that OP A’s current practice of providing one attorney

to KCIW for one half day every three weeks is adequate to

meet the needs of the women. As for civil matters, defend-

ants suggest that the inmates’ needs are satisfied by the ser-

vices provided by inmate legal-aides and the institution’s

recently upgraded law library.

Plaintiffs counter that the defendants have a constitu-

tional duty to provide all K@IW inmates with meaningful

access to the courts, which in this case, requires the state to

2la

provide attorney-assistanee to the inmates in addition to

the law library.

This Court’s Memorandum Opinion, Canterino v. Wil-

son, 546 F. Supp. at 216, imposing upon the defendants the

duty to provide “. . . the equivalent of at least one half-

time attorney, who will assist inmates in all areas, including

habeas corpus and other civil matters, in which they have a

demonstrated need. . . .” found such assistance “. . . re-

quired by both the equal protection clause and the decision

of the Supreme Court in Bounds v. Smith, 480 U.S. 817, 97

S. Ct. 1491, 52 L. Ed. 2d 72 (1977).”

At trial, this Court found the KCIW law library “woe-

fully inadequate” when the lawsuit was initiated. Canter-

ino v. Wilson, 546 F. Supp. at 208. However, since the filing

of this action, defendants are commended for their signifi-

cant efforts to improve the resources of the KCIW law

library. In addition, the availability of the library has been

extended to fifteen hours on non-program time per week,

the minimum imposed by this Court’s Order, July 26, 1982.

Supplementing the law library, the Court found that

“fojne attorney from the Kentucky Office for Public

Advocacy visits KCIW for a half day every three weeks

to assist inmates with criminal appeals. This attorney does

~ not assist in civil matters or prison disciplinary proceed-

ings, although most legal problems at KCIW concern civil

matters, such as child custody. (Jarvis Testimony).” Can-

terino v. Wilson, 546 F. Supp. at 203.

The United States Supreme Court recognized “{i]t is

now established beyond doubt that prisoners have a con-

stitutional right to access to the courts,” Bounds v. Sinith,

420 U. S. 817, $21, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72

(1977), and that the burden is upon the states to ensure that

the right of access remains unfettered. 430 U.S. at 829, 97

S. Ct. at 1498. To meet the constitutional requirement, the

right to access must be “meaningful.” 430 U.S. at 823, 97

22a

S. Ct. at 1495. “ ‘Meaningful access’ to the courts is the

touchstone.” Jd. Under Bounds, the right of meaningful

access extends to the preparation and filing of actions

challenging the fact of a prisoner’s confinement as well as

to actions challenging the legality of his conditions of con-

finement. 4380 U.S. at 827, 97 S. Ct. at 1497; see Johnson

v. Avery, 393 U. S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718

(1969) (habeas corpus) ; Wolff v. McDonnell, 418 U. S. 539,

94S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (civil rights).

In Bounds, the Court emphasized that while law librar-

ies were one constitutionally acceptable method to assure

meaningful access to the courts, other methods were not

foreclosed:

Among the alternatives are the training of inmates as

paralegal assistants to work under lawyers’ supervi-

sion, the use of paraprofessionals and law students,

either as volunteers or in formal, clinical programs,

the organization of volunteer attorneys through bar

associations or other groups, the hiring of lawyers on

a part-time consulant basis, and the use of full-time

staff attorneys, working either in new prison legal

assistance organizations or as part of public defender

or legal services offices. . . . Independent legal ad-

visors can mediate or resolve administratively many

prisoner complaints that would otherwise burden the

courts, and can convince inmates that other grievances

against the prison or the legal system are ill-founded,

thereby facilitating rehabilitation by assuring the in-°

mate that he has not been treated unfairly. . . . Any

plan, however, must be evaluated as a whole to ascer-

tain its compliance with constitutional standards.

430 U.S. at 831-832, 97 S. Ct. at 1499-1500.

Recognizing this right to access to the courts, the ques-

tion before us is what type of plan is sufficient under the

23a

factual record developed in this action to ensure meaning-

ful access to the courts on behalf of inmates at KCIW. The

defendants contend that the KCIW law library, as supple-

mented by inmate law clerks and assistance of the once a

month visit of the OPA attorney for criminal appeals, is

sufficient. This Court disagrees.

While other courts have held that law libraries are

sufficient in and of themselves te protect the meaning-

ful access to the courts, the factual record in this case in-

dicates a law library available to some of the inmates only

fifteen hours a week under the supervision of inexperienced

inmate legal aides is insufficient to provide the inmates

with the rights extended to them by the Constitution.

These limitations imposed on the use of the library are com-

pounded by the library’s physical conditions. The testi-

mony at trial showed that the library has insufficient space,

lighting, and study areas, was too noisy, and compared un-

favorably to the facility at the men’s institution. [Inmate

Legal Aide Carol Jarvis Testimony]. The physical de-

ficiencies impede an iamate’s ability to use the law library.

There are no tables available for research. [Carol Jarvis

Testimony]. Generally, protective custody and other in-

mates in the Cell Block cannot go to the law library. Legal

aides must bring books to their cells and each inmate is

limited to four law books per day, four days per week.

[Testimony of Warden Betty Kassulke, Associate Warden |

Gail Chandler, and Carol Jarvis]. Some books, such as

the Kentucky Revised Statutes and the Criminal Law of

Kentucky may not be taken to the Cell Block. [Carol Jarvis

Testimony ].

These inmates are forced to rely upon a system whereby

they must request specific legal materials from their cells.

Such a system is wholly inadequate to ensure meaningful

access to the courts. Williams v. Leeke, 584 F. 2d 1336, 1339

(4th Cir. 1978): Accord, Cruz v. Hauck, 627 F. 2d 710, 720-

94a

721 (5th Cir. 1980); Hooks v. Wainwright, 536 F. Supp.

1330, 1841 (M. D. Fla. 1982). Unless the library adequately

provides access to the courts for all inmates, some other

assistance should be available for the initiation of habeas

corpus and civil rights actions.

Exacerbating this situation is the fact that many in-

mates at KCIW are illiterate or otherwise unable to do

effective legal research. Plaintiffs’ Exhibit 5 imports that

69% of the KCIW population had less than a high school

education, with half of the total population having com-

pleted only the eighth, ninth or tenth grades. This is cor-

roborated by Table IT of Plaintiffs’ Exhibit 6 and Defend-

ants’ Exhibit 103.

Even if unlimited physical access could be provided to

the law library, it would be unavailing to one who lacks

sufficient opportunity or intellectual ability to utilize the

facility. The facts indicate that this is the case at KCIW.

The unrebutted trial testimony shows that the in-

mate legal aides at KCILW cannot effectively perform the

function of a legal assistant, as that term was used in

Bounds v. Smith, 480 U. S. at 831, 97 S. Ct. at 1499. No

comprehensive paralegal training is given, only a training

course limited to legal research. [Carol Jarvis Testimony].

However, that course did not attempt to teach the sort of

research and writing skills necessary to prepare legal briefs.

The emphasis of the training was on criminal cases, with

only films used+to train inmates on civil matters. No con-

tinuing legal education seminars are conducted after the

initial training. Since the attorney from OPA handles

criminal appeals only and does not monitor the cases filed

by the legal aides, it appears that the OPA attorney’s nar-

row scope of representation and supervision, plus the clerks’

lack of serious training in civil matters, do not qualify the

inmate law clerks as “paralegal assistants . . . work[ing]

25a

under lawyers’ supervision.” Bounds v. Smith, 430 U.S.

at 831, 97 S. Ct. at 1499.

As defendants point out, the OPA attorney’s services

are limited by statute to provide only for “the representa-

tion of indigent persons accused of crimes or mental states

which may result in their incarceration or cc afinement.”

-K.R.S. 31.010. The November, 1982, affidavit of David

Norat, OPA attorney servicing KCIW, provides that he

does not “. . . undertake representation of inmates in civil

actions other than in petitions for writs of habeas corpus

and other civil cases directly relating to the challenge of a

criminal conviction or a sentence.” While OPA may be

prohibited by statute from assisting the inmates at KCIW

on legal matters such as civil rights actions, the OPA is not

the only source of attorney-assistance available to the de-

fendants to provide counsel for these inmates,

Even this limited access to the OPA attorney af-

forded the KCIW inmate is less than that afforded to

similarly situated male inmates in the Kentucky Prison

System. The proof at trial indicated a denial of equal

protection. We found, in our Memorandum Opinion of

July 26, 1982, “KSP [Kentucky men’s maximum security

prison] has three full-time attorneys serving around 900

inmates,” or one attorney hour per about seven inmates per

week. Canterino v. Wilson, 546 F. Supp. at 203. “KSR

[ Kentucky men’s medium security prison] has two full-time

attorneys and one part-time, serving 1500 inmates a total

of 96 attorney hours per week,” or about one attorney hour

per fifteen inmates per week. 7d. There are about 150

women inmates incarcerated at KCIW. The state offered

no basis for providing the women at KCIW with only one

attorney hour per 150 inmates per week. The state has

failed to show how such a disparity in access to the courts

is justified. Glover v. Johnson, 478 F. Supp. 1075, 1079

(EK. D. Mich. 1979).

26a

As recognized in Bounds, acceptable legal services pro-

grams may very widely in their format. But to a greater

or lesser degree, dependent upon the cireumstances of a

particular prison setting, it has been held that all permiss-

ible programs must affirmatively include at least three

aspects to meet the Bounds standard. First, some source

of legal information of a professional nature must be avail-

able to all inmates for the full legal development of their

claims. This may consist of an adequate law library avail-

able to all inmates or qualified attorneys in sufficient num-

ber, or some combination of both. Secondly, for those in-

mates who possess insufficient intellectual or educational

abilities to permit reasonable comprehension of their legal

claims, provision must be made to allow them to communi-

eate with someone who, after consultation with the legal

learning source, is capable of translating their complaints

into an understandable presentation. Such a presentation

does not have to be refined, but it must be reasonable,

straightforward, and an intelligible statement. This goal

may be accomplished for the unlearned inmate through an

institutional attorney, a free-world person with paralegal

training, or an inmate, who through experience and intelli-

gence, is a competent “writ-writer.”. Where these sources

of assistance are present, and no physical or coercive re-

straints to prisoner complaints exist, due process man-

dating access to the courts is met.

Against this standard we measure the existing KCIW

system.

Regarding a source of legal information, we find that

the KCIW law library is now or is currently in the

process of meeting the standards set out in this Court’s

Order entered July 26, 1982. However, the provision of a

satisfactory law library does not settle the issue. As it is

recognized in this Circuit, “. . . . Defendants’ position that

they are obligated only to provide either an adequate law

27a

library or qualified legal assistance is too narrow a reading

of Bounds. [Judge Feikens’s emphasis]” Glover v. John-

son, 478 F. Supp. 1075, 1096 (E. D. Mich. 1979).

Faced with a similar issue in considering the constitu-

tionality of conditions at the women’s correctional facility

in Michigan, Judge Feikens noted in Glover v. Johnson

that “[t]he adequacy of a prisoner’s rights to access to the

courts must be measured by the actual opportunity he or

she has to raise a valid and meaningful claim before the

courts.” The United States Supreme Court recognized in

Wolff v. McDonnell, 418 U. S. 539, 94 S. Ct. 2963, 41 L. Ed.

2d 935 (1974), that the Due Process Clause assures that no

person will be denied the opportunity to present to the

judiciary allegations concerning violations of fundamental

constitutional rights. “The recognition by the Court that

prisoners have certain constitutional rights which can be

protected by civil rights actions would be diluted if inmates,

often ‘totally or functionally illiterate,’ were unable to arti-

culate their complaints to the courts.” Id. at 579, 94 S.

Ct. at 2986.

It does not necessarily follow that the presence of a few

inexperienced inmate legal aides at KCTW fulfill the con-

stitutionally necessary translator to provide the metamor-

phosis for an inmate’s pro se complaint into an understand-

able legal presentation. Historically, women inmates have

not gained the experience of their male counterparts in pro-

viding legal assistance to other inmates as “writ-writers” or

“jailhouse lawyers” because of the unavailability for many

years of sufficient legal resources. Glover v. Johnson, 478

F. Supp. at 1097. As noted at the time of the filing of this

action, the KCIW law library was “woefully inadequate.”

Canterino v. Wilson, 546 F. Supp, at 203. The actions pend-

ing before this Court reflect the absence of effective inmate

writ-writers at KCIW in comparison to the State’s male

institutions.

28a

Defendants cannot reject the responsibility impressed

upon them by the Constitution that they shall “. . . as-

sist inmates in the preparation and filing of meaningful

legal papers. . . .,” Bounds v. Smith, 430 U.S. at 823, 97

S.Ct. at 1495, on the grounds that men do not share the same

opportunity. The services of an attorney is justified, not

because there is or is not a similar program offered at the

men’s prisons, but because, unlike the male population gen-

erally, the women do not have a history of self-help in the

legal field; the evidence tends to show that until recently

they have had little access to adequate legal resources. At

trial, defendants elicited no evidence substantiating the

adequacy of its legal assistance program and did not carry

its burden of demonstrating that the legal needs of the pri-

son population are served by the existent program. Until

the goal of meaningful access is reached, the defendants are

charged with the responsibility of formulating a plan, com-

patible with security objectives, which will ensure that in-

mates needing assistance will have access to competent

assistance.

Since trained inmate writ-writers are not available,

such a plan, of course, must in some way provide for iden-

tification of either paid or volunteer attorneys or para-

legal advisors within the meaning of Bounds, and it must

also create a method whereby the inmate-plaintiff and

advisor can meet together.

Based upon this Court’s findings of fact at trial, the

Court concludes that the program in effect at the time of

trial as modified to date for providing KCIW inmates with

legal assistance, taken together, does not provide a “con-

stitutionally acceptable method to assure meaningful access

to the courts.” Bounds vy. Smith, 430 U.S. at 830, 97 S.

Ct. at 1499. We adopt the language of the Court’s Mem-

orandum Opinion and Order entered July 26, 1982, where

it provides:

29a

To bring access to courts to constitutional parity, de-

fendants must 1) supply a library equivalent to those

required for males at KSP and KSR, 2) substantially

increase the amount of non-program time the library is

open, and 3) provide the equivalent of at least one

half-time attorney, who will assist inmates in all areas,

including habeas corpus and other civil matters, in

which they have a demonstrated need.

Canterino v. Wilson, 546 F. Supp. at 216. Finding nothing

indicating defendants are not in compliance with the first

two elements of the Court’s mandate, we leave to the parties

the task of formulating the precise details within today’s

guidelines to accomplish the third element necessary to

afford inmates at KCIW their fundamental constitutional

right to meaningful access to the courts.

Il. INCIDENT REPORTS

Paragraph four of the Court’s Order in this action pro-

vides :

Defendants are directed to distribute to each inmate

brought before the Adjustment Committee a document

explaining in plain language the inmate’s minimum due

process rights which are embodied in defendants’ In-

ternal Management Directives. This document shall

be served on inmates at least twenty-four hours prior

to their Adjustment Committee hearing.

Defendants, by their Motion for Supplemental Relief,

dated September 17, 1982, sought to avoid this require-

ment contending it creates a “substantial burden” and

is “unnecessary and not required by law or the Consent

Decree or the Internal Management Directives.”

On the other hand, plaintiffs respond that such a docu-

ment is essential to ensure that each residents’ due process

rights are protected.

30a

At a conference conducted by the Court on October 13,

1982, the parties agreed that, except for one contested pro-

vision, the plaintiffs’ tendered document: “Inmate Rights—

KCIW Disciplinary Procedures,” Exhibit “A” to Plaintiffs’

Response to Defendants’ Notice of Compliance, should be

adopted in its entirety to meet the requirement of para-

graph four of the Order. The contested subsection pro-

vides:

§ LB. A CO [corrections officer] may only issue a write-

up if he or she personally witnessed the incident.

This Court, in its Memorandum Opinion, interpreted

Internal Management Directive (IMD) 713.03(D)(1) as

requiring incident reports to include only facts personally

witnessed by the reporting corrections officer. Canterino

v. Wilson, 546 F. Supp. 174, 202 (W.D. Ky. 1982). IMD

713.03(D)(1), Exhibit PX-22, specifically limits the issu-

ance of incident reports to “. . . only those facts which the

reporting employee has personally witnessed and otherwise

verified. . . .” [emphasis added]. The Court concluded

this directive governed the issuance of all incident reports

on the trial testimony of Gary Dennis, Executive Director

of the Office of Corrections Training. [Defendants attached

the partially transcribed portion of his trial testimony as

Exhibit 1 to their post-trial memorandum}. At page 4 of

Exhibit 1, Mr. Dennis testified:

We go over with them [corrections officers] the Inci-

dent Report. We talk with them about the importance

of report writing and the fact that they are only to

report what they see. They are not to deal with hear-

say.

From the trial testimony, this appears to be a blanket re-

quirement limiting the discretion of all corrections per-

sonnel, except in the case of an “extraordinary occurrence.”

3la

Mr. Dennis, at page 5 of Exhibit 1, explained the difference

between an “incident report” and an “extraordinary occur-

rence report.”

We talk about two different kinds of reports. We have

an incident report which is an Adjustment Committee

action. We teach the employees to fill that out if there

[is] an infraction of the code of conduct or the rules

or regulations. There is another incident report

called or sometimes referred to [as] an extraordinary

occurrence report which is filled out. These are quite

different. The incident report, that is where we teach

our line staffmembers you report only what you see.

Then that is turned over to the next [line] of super-

vision which is probably [a] lieutenant for investiga-

tion.

So we teach our line correctional officers, the new em-

ployees, your responsibility is [to] report only what

you see, write in that report factual information and

then that report is passed up to the next level of super-

vision and they will undertake the investigation. That

is in an instance where there is [a] violation of the code

of conduct. [emphasis added}.

Even in a situation where an inmate might repeatedly say

or do something disruptive, yet no staff member personally

witnesses the act, Mr. Dennis explained at page 6-7 of Ex-

hibit 1:

. we teach them they are not to take action on hear-

say. That they charge an inmate with an offense that

they have first hand knowledge of. They are not to

take another inmate’s testimony or another inmate’s

word that “X” called him an SOB.

32a

Gary Dennis went on to explain, at page 6 of Exhibit

1, that in a situation where no officer witnesses a serious

incident, such as “cutting” incident.

. we would instruct our officer there to do an extra-

ordinary occurrence report. Which means at this par-

ticular point in time you are not charging any inmate

with an offense under the offense and penalty code.

All you are doing is describing what is an extraordi-

nary occurrence. Whether it is a cutting or a fire or

something that would bear investigation.

828-602

We would teach them to write a full description of the

incident of what they saw. I want to make a clear

distinction that in that case they are not charging an

inmate with a violation. All they are doing is report-

ing the circumstances of that event. [emphasis added].

Thus, the policy governing the write-ups of an extraordi-

nary occurrence report, where there is a serious offense

and a full investigation vertifying the event, even in the

absence of a corrections officer personally witnessing the

event, provides for charges to be brought against an inmate,

not on the basis of the incident report alone, but upon

the staffs’ thorough investigation and the recommendation

of an adminstrative officer. As KCIW Warden Betty

_ Kassulke testified, extraordinary occurrence reports issue

for fires, escapes, serious injuries, accidents, and similar

incidents. Plaintiffs agree with this dichotomy distinguish-

ing incident reports and extraordinary occurrence reports.

It is recognized in this Circuit that state policy limit-

ing prison officials’ discretion creates an enforceable liberty

interest. Bills v. Henderson, 631 F. 2d 1287 (6th Cir.

1980); Walker v. Hughes, 558 F. 2d 1247 (6th Cir. 1977).

In addressing the issue of an inmate transfer into segre-

33a

gation, the Sixth Circuit stated that a “[l]iberty interest

can be created by state rules or mutually explicit under-

standings as well as the statute.” Bills v. Henderson, 631

F, 2d at 1291. <

In this action, the record reflects that the Kentucky

Department of Corrections, through IMD 713.03(D)(1),

Exhibit PX-22, has created such a liberty interest as set

out above. The testimony of Gary Dennis confirms that

this policy is applicable to all corrections officers.

As noted, it has been the state’s policy that all incident

reports shall issue only where a corrections officer persori-

ally witnesses the incident. In the case of an extraordinary

occurrence, such as an escape, murder, extortion, fire, or

similar serious violation of institutional rules or law, the

Department indicates that, regardless of whether there is

a staff witness, a full investigation shall be conducted veri-

fying, documenting, and substantiating the incident, and

upon the recommendation of administrative personnel, spe-

cifie charges identifying the alleged infraction shall be

brought against an inmate in the form of an “extraordinary

occurrence report.” The Court recognizes that the Ad-

ministrators of the Kentucky Corrections Department must

be allowed to issue charges of serious institutional infrac-

tions based on a thorough investigation since they cannot

operate and maintain security otherwise. However, as to

violations of prison conduct code, the Department requires

all write-ups to be personally witnessed by a corrections

officer. The defendants have offered no trial testimony or

exhibits to the contrary.

On the basis of the record, exhibits, and trial testimony,

the Court finds that the existing policy of the Department

of Corrections might be better stated as follows:

Where there is a violation of the prison code of con-

duct, a corrections officer may only issue an incident

34a

report if he or she personally witnessed the incident

pursuant to IMD 713.03(1) (1);

However, in the event of a serious inmate infraction

(e.g., murder, fire, extortion, escape) a corrections offi-

cer need not personally witness the incident, but only

upon a thorough staff investigation verifying, docu-

menting, and substantiating the acts or events involved

in such an infraction, charges may be brought upon the

recommendation of an administrative officer in the

form of an extraordinaryfoccurrence report.

The Department of Corrections current policy reflects an

attitude of professionalism by the administrators and staff

in their attempt to maintain the delicate balance between

institutional security and fairness to the inmate charged

with a rule infraction.

An appropriate order is this day entered.

ORDER

For the reasons stated in the Memorandum Opinion this

day entered,

Ir Is OrDERED:

1. The parties shall submit a plan formulating the

precise details to assure inmates at KCIW their funda-

mental. constitutional right to meaningful access to the

courts. Supplementing the changes previously mandated

by this Court’s Order of July 26, 1982, enlarging the KCIW

law library and expanding its availability, this plan shall

“specifically provide for identification of either paid or vol-

unteer attorneys or paralegal advisors within the meaning

of Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed 2d

72 (1977), who will assist inmates in all areas, including

criminal actions, habeas corpus and other civil matters, in

which the inmates have a demonstrated need. By neces-

or ‘ute

oua

sity, this plan will incorporate the available services af-

forded by the Kentucky Office of Public Advocacy, but will

not be limited to that agency in fulfilling the state’s con-

stitutional responsibility. The plan must also create a

method whereby the inmate plaintiff and advisor can meet

together. Within the guidelines set out in the Memorandum

Opinion, we leave to the parties the task of formulating the

precise details.of the plan.

The plan shall be submitted within sixty days of this

Order.

2. As agreed and modified by the parties at a confer-

ence conducted by the Court on October 13, 1982, plaintiffs’

tendered due process document: “Inmates Rights — KCI W

Disciplinary Procedures,” Exhibit “A” to Plaintiffs’ Re-

sponse to Defendants’ Notice of Compliance, shall be

adopted in its entirety. However, while § I.B., as tendered,

adequately addresses defendant’s policy for verification and

issuance of an “incident report,” it does not address its

policy for verification and issuance of an “extraordinary

occurrence report” and the parties may supplement the

wording of that section to clarify any ambiguity created by

that omission.

“As agreed by the parties, the due process document shall

be incorporated verbatim into the new KCIW resident

handbook for distribution to all inmates. However, until

the information can be incorporated in the handbook, the

document shall be given to the charged inmate at least 24

hours prior to the Adjustment Committee hearing.

This requirement shall become effective as soon as pos-

sible, or no later than ten days from the entry of this Order.

36a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0545-L(J)

Pat CaNnTERINO, et al., - - - - - Plaintiffs,

AND

Unitep States or America - - Plaintiff-Intervenor,

Grorce W. Witson,etal, - - - - Defendants.

MEMORANDUM OPINION—July 26, 1982

This action is before the Court for judgment following

a four week trial, submission of post-trial briefs and ora’

arguments. Plaintiffs are inmates at the Kentucky Cor-

rectional Institution for Women (KCIW). They seek a

broad range of relief concerning the conditions of their

confinement, disparate treatment of men and women in-

mates in Kentucky’s prisons, and the denial of opportuni-

ties for vocational training and education. This action

was filed on Uctober 31, 1980 and a class was certified on

December 22, 1980 pursuant to Rule 23(a), (b)(1) and

(b)(2) of the Federal Rules of Civil Procedure for pur-

poses of declaratory and injunctive relief. Defendants are

officials of the Kentucky Department of Corrections with

responsibility for operating KCIW.

Plaintiffs’ complaint was amended for the second time

by motion made December 23, 1981 and sustained February

22, 1982. The second amended complaint joined the Super-

ola

intendent of Public Instruction as a defendant, alleging

the Department of Education operates vocational educa-

tion programs for the Department of Corrections in a man-

ner which discriminates against women in violation of Title

IX of the Education Amendments of 1972 and Title II of

the Vocational Education Amendments of 1976. The Court

severed the claims against the Department of Education

on April 6, 1982, pending trial of the claims against the ~

Department of Corrections.

The United States Department of Justice filed a com-

plaint in intervention on March 11, 1982, alleging discrim-

ination against female inmates in the Kentucky prison

system in violation of the equal protection clause of the

fourteenth amendment and 20 U.S.C. 1681.'. This action

‘is properly maintained as a class action and jurisdiction

is proper under 28 U.S.C. §§1341, 1848, 1345 and 42 U.S.C.

§2000h-2. Venue is proper under 28 U.S.C. §§1391 and

1392.

KCIW is a multi-custody prison located on a compound >

of 276 acres, seven of which are fenced and contain the

main institutional buildings. One building, opened in 1938,

contains the dormitories, cafeteria, kitchen, infirmary, aca-

demic school, institutional offices, admissions and orienta-

tion unit, canteen, laundry, special management unit (cell-

block), and law library (PX 55, DX 8). An annex to this

building, constructed more recently, houses the vocational

education program. In addition to the main building,

KCIW has an honor cottage, a chapel, a recreation build-

ing called the “Barn”, and a minimum security unit known

as “staff house.”

The institution was designed to house a maximum of

110 inmates. Its population reached a modern high of 145

in 1976, at which time the state opened a new minimum

security institution in northern Kentucky for women to

relieve overcrowding at KCLW. That minimum security

38a

facility, the Daniel Boone Career Development Center

(DBCDC), which usually housed around thirty women, (DX

22, p. 5), was closed in September, 1981 for budgetary rea-

sons.” The prisoners at DBCDC were all transferred back

to KCIW. Thus KCIW houses all minimum, medium and

maximum security female offenders in Kenutcky.

Most inmates at KCIW (63%) are between 18 and 30

years old. The median education level is tenth grade.

About two-thirds of the inmates come from broken homes

and almost three-quarters were responsible for at least

one dependent child before incarceration. All but a handful

were the sole or primary support for at least one dependent.

A large majority (74%) of KCIW inmates were being in-

carcerated for the first time. Property crimes of theft,

fraud and forgery comprise nearly half or all convictions.

Murder and manslaughter are the next most frequent

crimes, followed by drug related offenses. (See Peachee,

“A Description of Female Offenders at KCIW,” PX 5).

KCIW has operated since 1977 under a Levels System in

which all institutional privileges are allocated on the basis

of behavior and seniority. This system is all encompassing

and is at the heart of plaintiffs’ allegations of sex-based

disparities in conditions of confinement.

The court has divided the case into three main parts:

the Levels System, vocational education and training, and

general conditions of confinement. Issues concerning the

classification procedures used at KCLW overlap into each

of these areas, but some aspects of the classification system

wil be addressed separately.

Although the findings and conclusions which follow dic-

tate that substantial changes must be made at KCIW, this

should not be taken as an adverse reflection on Superin-

tendent Kassulke, Associate Superintendent Chandler or

the other highly committed staff people at the institution.

Officials at KCIW, contrary to the case in so many condi-

39a

tions of confinement lawsuits, have exhibited great dedi-

cation to their jobs and genuine concern for the welfare of

the inmates in their charge. The Court respects the efforts

of these officials in a difficult job.

I. FINDINGS OF FACT

(Findings in their entirety are not included—only those

findings which relat@ to this petition are reprinted)

5. Access To Courts

The law library at KCIW was woefully inadequate when

this lawsuit was initiated. The Supreme Court Reporter

had not been updated in over six years; of the nearly 400

Federal Reporters published since 1960, only 22 were in the

KCIW law library; over one-third of the Kentucky Deci-

sions from the Southwest Reporter, Second Series, were

missing; there were no Shepard’s Citations. (See Teitle-

baum Testimony, PX 204). Since the initiation of this

suit, defendants have made a significant effort to improve

the holdings of the KCITW law library. (Joint Exhibit 1).

The collection still does not include many basic books which

must be provided at KSR and KSP under the Consent De-

cree in Kendrick and Thompson. (PX 4, § 8).

The law library is open to inmates from 12:30 p.m. until

3:15 p.m., Tuesday through Friday. Since these hours

largely overlap withthe afternoon program hours and

work:shift, the library is available only a few minutes each

day unless an inmate gets permission to miss class or work.

(Testimony of Carol Jarvis, and Elizabeth Chandler, Assoc.

Supt.).

One attorney from the Kentucky Office for Public Ad-

vocacy visits KCIW for a half day every three weeks to

assist inmates with criminal appeals. This attorney does

not assist in civil matters or prison disciplinary proceed-

ings, although most legal problems at KCTW concern civil

40a

matters, such as child custody. (Jarvis Testimony). KSP

has three full-time attorneys serving around 900 inmates.

(Parke Testimony). KSR has two full-time attorneys and

one part-time, serving 1500 inmates a total of 96 attorney

hours per week. (Teitlebaum Testimony). (See also, PX

4, Consent Decree § 3).

(Relevant Portions of Conclusions of Law)

5. Access to Courts

As noted in the findings of fact, defendants have made

substantial progress in bringing their law library into com-

plaince with minimum standards. Here again, however,

there is still a substantial disparity between the resources

available to women inmates and those provided for males

under § 8 of the Kendrick and Thompson Consent Decree.

To bring access to courts to Constitutional parity, defend-

ants must 1) supply a library equivalent to those required

for males at KSP and KSR, 2) substantially increase the

amount of- non-program time the library is open, and 3)

provide the equivalent of at least one-half-time attorney,

who will assist inmates in all areas, including habeas corpus

and other civil matters, in which they have a demonstrated

need. These minimal steps are required by both the equal

protection clause and the decision of the Supreme Court

in Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, —_. L. Ed.

2d — (1977).

4la

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0545-L(J)

Pat CANTERINO, et al., : - : - - Plaintiffs,

AND

Unitep States or America, - - Plaintiff Intervenor,

Grorce W. WILson, et al., - - - : Defendants.

ORDER—July 26, 1982

“or the reasons stated in the Memorandum Opinion en-

tere. this day,

Ir Is OrnDERED AND ADJUDGED:

1. Defendants shall have a period not to exceed ninety

days in which to revise their policies on institutional priv-

ileges in a manner that will ensure female inmates are

afforded the same normal institutional privileges as male

inmates. Thereafter, defendants are permanently enjoined

from operating and enforcing the Incentive Levels System,

5th revision, entered into evidence as plaintiffs’ Exhibit 122.

2. On or before October 15, 1982, defendants shall sub-

mit a plan for improving the opportunities for female in-

mates in the area. of vocational education, on the job train-

ing, prison industries and community release programs in

a manner consistent with the findings of fact and conclu-

sions of law entered this day. Plaintiffs and the United

42a

States shall file their objections to defendants’ plan by

November 15, 1982. The Court will then set a date for the

parties to meet and confer in an effort to resolve any differ-

ences which may exist, and will thereafter hold a hearing

on any objections which cannot be resolved.

3. Defendants shall take steps to reduce overcrowding

in the Admissions and Orientation Unit and to eliminate the

practice of housing inmates classified to Admissions and

Orientation in the infirmary as soon as possible. No later

than November 1, 1982, defendants shall submit to the Court

their plan for bringing housing at KCIW into compliance

with the American Correctional Association standards cur-

rently enforced in the male institutions. Plaintiffs shall

have thirty days after the submission of this report to file

their objections and the Court will schedule a hearing on

any objections which cannot be resolved by agreement.

4. Defendants are directed to distribute to each inmate

brought before the Adjustment Committee a document ex-

plaining in plain language the inmate’s minimum due proc-

ess rights which are embodied in defendants’ Internal Man-

agement Directives. This document shall be served on

inmates at least twenty-four hours prior to their Adjust-

ment Committee hearing.

5. Defendants shall make the following materials avail-

able in the KCIW law Hbrary:

Federal Materials

1. West’s Supreme Court Reports, or Lawyer’s Edition,

1960 and forward

2. Federal Second Reporter, 1960 and forward

3. Federal Supplement Reports, 1960 and forward

4. United States Code Annotated, West Publishing

Company :

(a) Index volumes

450

(b) Constitution of the United States volumes

(d) Title 28 volumes

(e) Title 42 volumes

Federal Practice Digest, Second Series

6. Paperback edition--Federal Rules of Civil Proced-

ure, Evidence, Appellate Procedure and Title 28,

West Publishing Company

Paperback edition—Federal Rules of Criminal Pro-

cedure, Evidence, Appellate Procedure and Title 18,

West Publishing Company

8. Shepard’s United States Citations

9. Shepard’s Federal Second and Federal Supplement

Citations

Kentucky Materials

1. Kentucky Revised Statutes

2. Kentucky Digest, West Publishing Company

3. Southwestern Report, 2d Series, Kentucky cases, en-

tire series, for the years preceding the publication of

S.W.2d, either Southwestern Reporter of the official

reports of the Kentucky Court of Appeals

4. Shepard’s Kentucky or Southwestern Reporter Cita-

tions

Miscellaneous Publications

1. Corpus Juris Secundum:

(a) Habeas Corpus volumes

(b) Appeal and Error volume-

2. Black’s Law Dictionary

3. Cohen, Legal Research im Nutshell

dha

Criminal Law Reporter

Israel, Criminal Procedure in a Nutshell

Murrell, Kentucky Criminal Law

Sokol, Federal Habeas Corpus

Prison Law Monitor

Wright, Federal Courts

10 Potts, Prisoners Self-Help Litigation Manual

11. ACLU Handbook, The Rights of Prisoners

12. Bronstein, Hirschkop, Prisoners’ Rights, 1979

The materials listed in this paragraph shall be kept up to

date according to publishers revisions. Defendants are

further directed to keep the law library at KCIW open

and staffed during at least fifteen (15) hours of non-pro-

gram time per week. Defendants shall make the services

of attorney available to inmates at KCIW on a part-time

basis for at least twenty hours per week. -

Pr SP FF

6. Defendants shall take steps immediately to open the ¢

yard for female inmates at KCIW an amount of time sub- ~

stantially equivalent to the hours in which the yard is open

to male inmates at KSR and KSP.

7. Defendants shall make available to all female in-

mates necessary items for personal hygiene at no charge

in a manner equivalent to their provisions for male inmates

in this area.

8. Defendants are enjoined from enforcing their inter-

pretation of K.R.S. 197.140 in a manner which operates as

a blanket prohibition against all minimum security activi-

ties, and are directed to submit to the Court a revision of

the applicable Internal Management Directives in aeccord-

ance with the Court’s findings and conclusions on this issue.

9. Defendants shall institute a default provision in

their grievance procedure for women at KCIW similarly

toa

situated to men at KSP and KSR, requiring favorable ac-

tion on grievances not acted upon within the prescribed

time limits.

10. This Court will retain jurisdiction until it is satis-

fied that the terms of the memorandum opinion and order

in this action have been complied with in all respects.

Dated: July 26, 1982

(s) Edward H. Johnstone

Edward H. Johnstone _

Judge, United States District Court

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