Appendix — Knop v. McGinnis

eg | Suprema Cour, U.S.

ee Lave FILED

No. | JAN 14 1993

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

October Term 1992

KENNETH L. McGINNIS, et al.,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO PETITION

GARY KNOP, et al.,

Petitioners,

Vv.

Respondents.

Elizabeth Alexander

(Counsel of Record)

Adjoa A. Aiyetoro

David C. Fathi

Alvin J. Bronstein

National Prison Project

of the ACLU Foundation

1875 Connecticut Avenue, N.W.

Suite 410

Washington, DC 20009

(202) 234-4830

Patricia A. Streeter

1816 One Kennedy Square

Detroit, MI 48226

(313) 962-1177

Attorneys for Petitioners

CASILLAS PRESS, INC., 1717 K STREET, N.W., WASHINGTON, D.C. 20036

i

TABLE OF CONTENTS

Page

Knop, et al. v. Johnson, et al.,

Nos. 88-1563/1634/1879

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Nos. 88-1563/1634/1879

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 88-1563/1634

Gary KNOopP, et al., |

Plaintiffs-Appellees,

Cross-Appellants,

v. ON APPEAL and

F cross-appeal from the

PERRY M. JOHNSON, et al., United States District

Defendants-Appellants , Court for the Western

e

No. 88-1879

EVERETT HADIX, et al., 7

Plaintiffs-Appellees,

v. ON APPEAL from the

United States District

PERRY M. JOHNSON, Individually | Court for the Eastern

and as Director of the Michigan District of Michigan

Department of Corrections,

Defendant-Appellant.

2a

Decided and Filed October 16, 1992

Before: NELSON and BOGGS, Circuit Judges; and

WILHOIT, District Judge. *°

DAVID A. NELSON, Circuit Judge. These are

consolidated appeals in two class actions brought against

the Director of the Michigan Department of Corrections

by inmates of the Michigan prison system who challenge

the constitutionality of certain conditions of their

confinement. Both cases involve the State Prison of

Southern Michigan at Jackson, and Knop involves three

other Michigan prisons as well.

An issue common to the appeals in both Knop and

Hadix is whether the district courts erred in finding, as

both did, that Michigan prisoners have been denied their

right of access to the courts. On the records before us,

and finding no clear error in the facts as determined by

the district courts (Enslen and Feikens, JJ.) in their

thorough and well-crafted opinions, we are satisfied that

there are at least some Michigan prisoners who have been

denied the type of access to the courts required under

current Supreme Court doctrine.

Although it is well established that the federal

constitution requires states affirmatively to assist state

prisoners in obtaining access to the courts for presentation

of constitutional claims related to their confinement, see

Bounds v. Smith, 430 U.S. 817 (1977), there has been

some uncertainty as to the breadth of the class of claims

covered by this requirement and as to how far the states

must go in affirmatively facilitating the prisoners’ access

“The Honorable Henry R. Wilhoit, Jr., United States District

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

3a

to the courts. Our recent decision in John L. v. Adams,

969 F.2d 228 (6th Cir. 1992), which involved

incarcerated juveniles, teaches that affirmative assistance

need not be provided for litigation tha_ is not related to the

inmate's incarceration. The same limiting principle

applies, we believe, with respect to adult prisoners. The

principle was correctly applied in Knop, but not in Hadix;

the remedial order in the latter case should have been

limited, as was the order in Knop, to assistance for

prisoners in making collateral attacks on their convictions

and in challenging the constitutionality of the conditions

of their confinement.

Meaningful access to the courts cannot be assured for

juveniles, as both sides agreed in John L., absent access to

an attorney. For adult prisoners, however, access to the

courts need not entail access to an attorney; access to an

adequate law library, or to paralegal personnel with access

to such a library, is sufficient. The Hadix court directed

the Department of Corrections to provide both a

constitutionally sufficient law library and a staff of

attorneys; in this, as in certain other respects, we

conclude that the court abused its discretion.

The Knop court did not require that a staff of attorneys

be maintained, but it ordered the Department to procure

paralegal services by contract with a _ non-profit

corporation. The court rejected a plan under which

paralegal assistance would have been provided directly by

the Department. Here too, we believe, the remedy went

too far; both cases must be remanded for the development

of less intrusive remedies. In the interest of insuring

uniformity in the reshaping of the remedies, we shall

remand both cases to a single court.

The appeal in the Hadix case is limited to the access to

courts issue, but Knop presents several other issues as

well. Except as indicated below, we shall affirm the

judgment of the district court as to each of the remaining

issues presented in Knop.

4a

I

The plaintiff class that was certified in Knop consists of

prisoners at the State Prison of Southern Michigan at

Jackson,’ the Marquette Branch Prison, the Michigan

Reformatory at Ionia, and the Riverside Correctional

Facility, also located in Ionia. Knop v. Johnson, 667 F.

Supp. 467, 469 (W.D. Mich. 1987). With the exception

of the prisoners at Riverside and the Central Complex at

Jackson, the Knop class evidently corresponds to that

certified in Walker v. Johnson, 544 F. Supp. 345 (E.D.

Mich. 1982), aff'd in part and rev'd in part sub nom.

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

One of the claims advanced in Walker was that the

Michigan authorities had "violated plaintiffs' equal

protection clause right to meaningful access to the courts

as established in the Supreme Court case of Bounds vy.

Smith.” 544 F. Supp. at 361. The district court

acknowledged in Walker that Michigan's prison law

library facilities were adequate, but found that a cutback

in library hours following a series of prison riots had

unlawfully restricted access to the libraries. Jd. The

district court ordered that library hours be increased.

On appeal, this court observed that there had been no

showing that any prisoner had. actually been denied access

to the courts or had actually been prejudiced in a lawsuit.

771 F.2d at 932. We reversed the order in which the

district court had specified hours of operation for prison

libraries, and we directed the court to consider, on

remand, “whether adequate access to court has been

denied any prisoner." Jd.

Although the Walker case was remanded to the Eastern

District of Michigan, access to courts was one of the

The Jackson facility contains several “complexes,” one of which

- the Central Complex, housing about 2,400 prisoners -- is the

subject of the order in Hadix. tral Complex prisoners have been

Se oe Snap eae as far as the access to courts issue is

concerned.

——

5a

issues litigated in a 35-day bench trial conducted by Judge

Enslen, of the Western Distriet of Michigan, in Knop.

The parties did not inform Judge Enslen that the access to

courts issue had been remanded to another court, and it

was only in preparing his opinion that he focused on this.

See 667 F. Supp. at 484-85.2 Acknowledging that "[iJt

may be regrettable that there have been two federal court

proceedings involving the same issue and the same class

of inmates," Judge Enslen concluded that it was simply

too late in the game for him not to decide the plaintiffs’

access to courts claim. Jd. at 485. We have no quarrel

with this conclusion.

Judge Enslen discussed the merits of the plaintiffs’

access Claim at pages 486 through 496. After describing

the library system in detail and identifying its perceived

defects, Judge Enslen found that although some inmates

were able to use the system to prepare effective

complaints, a greater number (particularly inmates

confined in segregation, the illiterate, and inmates with

intellectual handicaps) were unable to use the system to

gain meaningful access to judicial forums. Such access,

as the court correctly noted, entails not only the drafting

of complaints and petitions for relief but also the drafting

of responses to motions to dismiss and the drafting of

objections to magistrates’ reports and recommendations.

After the submission of proposed remedial plans and

comments thereon, Judge Enslen conducted further

hearings in March of 1988. He subsequently issued a

2in an opinion filed 18 months earlier in connection with a

motion for partial dismissal on res judicata grounds, however, the

Knop court did say that it had examined Walker carefully, and it did

note that the Sixth Circuit had remanded the case “for the district

court to consider whether uate access to court has been denied

7 Dae Slip > of 3/20/86, docket item 466, at p. 7, quoting

771 F.2d at 932. Given the extraordi amount of written

material connected with this litigation, and given the fact that none of

the litigants questioned the appropriateness of the Western District as

a forum for litigation over the access to courts issue, we do not find it

surprising that the district court should have failed to raise this

question at the outset on its own motion.

6a

final opinion and order, reported as Knop v. Johnson, 685

F. Supp. 636 (W.D. Mich. 1988), directing the Michigan

Department of Corrections to contract with a non-profit

corporation for providing paralegal assistance to

prisoners; requiring the hiring of an attorney to function

as a program director; and_ establishing _ staffing

requirements that included specified numbers of civilians

with two-year paralegal degrees, prisoner paralegals,

and/or inmate law clerks. The order further provided that

the corporation's board of directors, only a minority of

whom were to be chosen by the Department, should

develop standards for providing general research

assistance to any prisoner using a law library, plus

drafting assistance to illiterate prisoners and those unable

to express themselves in English. Portions of the order

were stayed by this court pending appeal.

Shortly after entry of the remedial order in Knop, an

opinion and order were filed in Hadix. See Hadix v.

Johnson, 694 F. Supp. 259 (E.D. Mich. 1988) (Feikens,

J.). A class consisting of all prisoners confined in

Jackson's Central Complex had been certified in Hadix

some years earlier. Most of the issues raised in the case

were settled under a comprehensive consent decree

entered early in 1985. Section VI of the consent decree,

captioned "Access To Courts," contained detailed

provisions on how much time various categories of

prisoners should be permitted to spend in prison libraries,

what books should be included in the libraries, how

prisoners facing court deadlines could get additional

library time, and related matters. (A copy of Section VI,

with its "Appendix B,” is set forth as an appendix to this

opinion.) Two questions relating to court access were not

settled in the consent decree, however, and the decree

provided for the submission of these questions to the court

for resolution after a hearing on the merits. The decree

framed the questions thus:

"(1) Whether and to what extent Defendants are

constitutionally required to provide attorneys to

assist prisoners with legal matters.

Se

7a

(2) If attorneys must be provided, whether and to

what extent these attorneys must be independent.”

The opinion and order issued by Judge Feikens in 1988

broadened the issue as follows:

“whether, and to what extent, the defendants are

constitutionally required to provide access to the

courts for inmates in the Central Complex through

the provision of additional attorneys, paralegals

(civilian or inmate), and other means to assist

inmates with civil actions (including habeas corpus

proceedings) and related matters (i.e.,

grievances)." 694 F. Supp. at 262-63.

In 1979 Judge Feikens had remarked on "the existence

of experienced writ writers at [Jackson] and other

institutions who are able to frame an inmate's complaint

in constitutional terms well enough for presentation to a

state or federal court." Glover v. Johnson, 478 F. Supp.

1075, 1097 (E.D. Mich. 1979). By 1988, however Judge

Feikens had become persuaded, as had Judge Enslen, that

the pool of competent inmate writ-writers, or "jailhouse

lawyers,” was not adequate to meet constitutional norms.2

Judge Feikens concluded that the Department of

Corrections was constitutionally required to establish a

program of legal assistance for Central Complex inmates

substantially more comprehensive than the program

ordered in Knop for inmates housed elsewhere. Under the

Hadix order, for example, requests for legal assistance

were to be entertained not only in connection with the

drafting of habeas corpus petitions and civil rights claims

(including, but not limited to, those challenging conditions

of confinement) but also in connection with "[ojther civil

claims involving matters such as domestic relations,

3The Department of Corrections has also had its problems with

jailhouse lawyers. In the proceedings held before Judge Enslen with

t to a remedy, the Department abolition of the

res a

jeilboune lawyer system altogether. See 685 . Supp. at 641.

8a

personal injury, deportation, workers' compensation,

social security, detainer, wills and estates, and taxation."

694 F. Supp. at 295. The Hadix court further found that

representation should be provided "in civil matters where

an inmate (1) is a defendant; (2) did not initiate the

action; and (3) where an inmate's rights will expire absent

timely initiation of suit... ." Jd. at 294. To provide

non-judicial relief for prisoners with administrative

concerns, moreover, the Hadix court ordered the

Department of Corrections to adopt an elaborate grievance

program conforming to criteria spelled out by the court.

Id. at 296-98. And to provide the legal representation

thought to be necessary for Central Complex prisoners,

the Department of Corrections was ordered to enter into a

five-year renewable contract with Prison Legal Services of

Michigan, Inc. That entity, under the court's order, was

to maintain staffing levels consisting, at a minimum, of a

program director, four staff attorneys, six certified

paralegals, and necessary auxiliary staff. Jd. at 295.

The Director of the Department of Corrections has

appealed from the orders in both Hadix and Knop. The

Knop plaintiffs have appealed from the denial of certain

racial discrimination claims.

II

In Part A of this section we discuss the constitutional

underpinnings and scope of the right to affirmative

assistance in obtaining access to courts. In Part B we

discuss the types of legal matters to which the state's duty

of providing affirmative assistance extends.

Pi

Bounds v. Smith, 430 U.S. 817 (1977), represents the

Supreme Court's most far reaching description of the

“right of access” first recognized in Ex parte Hull, 312

) 9a

U.S. 546 (1941).4 The Court's opinion in Bounds is

silent as to the source of this right, but on other occasions

the Supreme Court has said variously that it is founded in

the Due Process Clause of the Fourteenth Amendment,

Wolff v. McDonnell, 418 U.S. 539, 579 (1974);

Procunier v. Martinez, 416 U.S. 396, 419 (1974), or the

Equal Protection Clause, Pennsylvania v. Finley, 481

U.S. 551, 557 (1987); Murray v. Giarratano, 492 U.S.

1, 7, and see id. at 11 n.6 (1989) (plurality opinion of

Rehnquist, C.J.), or the First Amendment right to petition

for a redress of grievances, Turner v. Safley, 482 U.S.

78, 84 (1987) (citing Johnson v. Avery, 393 U.S. 483

(1969)); Hudson v. Palmer, 468 U.S. 517, 523 (1984)

(same). Lower courts have also implicated the Privileges

and Immunities Clause of Article IV. Nordgren v.

Milliken, 762 F.2d 851, 853 (10th Cir.), cert. denied, 474

U.S. 1032 (1985); Smith v. Maschner, 899 F.2d 940, 947

4in Hull, a prisoner -- who was incarcerated at Jackson, as it

happens -- had eeeny tried to send a D ag ye for habeas corpus,

supported 4 exhibits, to the Clerk of United States Supreme

Court. Mic igan “> officials kept confiscating these materials,

but with help from his father the prisoner finally succeeded in getting

them to the Court. To justify the institution's attempts to prevent the

prisoner from filing his papers, nel pe y warden cited a regulation

uiring all petitions to be revi and approved by state officials

before they could be filed. The Supreme held the regulation

invalid:

“The considerations that pears its formulation are not

without merit, but the state its officers may wot abridge

or impair petitioner's mght to apply to a federal court for a

writ of habeas corpus." 312 U.S. at 549.

The prohibition against abridging or impairing a prisoner's right

to a ly or habeas compes relief subsequently spawned 8 soquirement

for 7 rmatively aiding and abetting such applications. The seminal

case is Younger v. Gilmore, 404 U.S. 15 71), a two-sentence per

curiam opinion affirming the decision of a -judge district court in

Gilmore v. Lynch, 319 F. Supp. 105 (N.D. . 1970) (California

rtment of Corrections ordered either to ex its prison

libraries or “devisf{e] another system whereby indigent prisoners are

given adequate means of obtaining the legal expertise necessary to

obtain judicial consideration of alleged grievances cognizable by the

courts.” Jd. at 112). The only authority that the Supreme Court cited

on the merits in Younger v. Gilmore was Johnson v. Avery, 393 U.S.

483 (1969), which held simply that in the absence of alternative legal

resources a state may not constitutionally prohibit prison inmates from

10a

(10th Cir. 1990). See generally John L. v. Adams, 969

F.2d 228, 231-32 (6th Cir. 1992).

One Court of Appeals has suggested, with respect to

principles developed under the “right of access" rubric,

that “because their textual footing in the Constitution is

not clear, these principles suffer for lack of internal

definition and prove far easier to state than to apply."

Morrow v. Harwell, 768 F.2d 619, 623 (Sth Cir. 1985).

Judge Enslen, similarly, has spoken of the "vagueness" of

the decision in Bounds. Knop, 667 F. Supp. at 493. But

while the constitutional underpinnings of today's right of

access doctrine may be thought to lack intellectual

coherence, we believe that the parameters of the doctrine

are relatively clear.

The Supreme Court did not hold, in Bounds, that prison

authorities are constitutionally required to provide

attorneys-at-law to assist prisoners in the preparation of

habeas corpus petitions and the like. The Bounds inmates

asserted, before the district court, that a library facility

plan proposed by North Carolina prison officials as a

means of assuring access to the courts could not pass

constitutional muster unless supplemented by a legal

defenders’ program under which prisoners could receive

the assistance of independent attorneys. See Smith v.

Bounds, 538 F.2d 541, 542 (4th Cir. 1975). The district

court refused to require the state to establish an

independent attorneys’ office, and this decision was

affirmed by the Court of Appeals for the Fourth Circuit:

“the District Court correctly ruled that the State is under

no constitutional duty to offer the inmates of its penal

institutions both adequate legal research facilities and an

independent attorneys’ office, however helpful the dual

service might be." Jd. at 544 (footnote omitted). The

Supreme Court likewise affirmed, holding that "the

fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the

assisting other inmates in the preparation of petitions for post-

conviction relief.

a

lla

preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law." 430

U.S. at 828 (footnote omitted, emphasis supplied). As

the Eleventh Circuit has observed, “it is noteworthy that

Bounds refers to law libraries or other forms of legal

assistance, in the disjunctive, no fewer than five times.”

Hooks v. Wainwright, 775 F.2d 1433, 1435 (11th Cir.

1985), cert. denied, 479 U.S. 913 (1986).5

Sour own court, like other courts of a Is, has always

understood the Supreme Court to have meant what it said in holding

that prisoners must be provided adequate law libraries “or” uate

assistance from with legal training. In Holt v. Pitts, 702 F.2d

639, 640 (6th Cir. 1983), we explicitly endorsed “the proposition thet

& prisoner's constitutionally-guaranteed _ of access to the courts

has been — when a state provides prisoner with either the

legal tools necessary to defend himself, ¢.g., a state-provided law

library, or the assistance of legally-trained personnel.” (Emphasis

supplied.) We went on to observe, in Pitts, that

"The alternative avenues to state authorities to protect a

prisoner's right of access to the courts are precisely that --

a The choice between alternatives lies with the

state.” /d.

- Penland v. Warren County Jail, 759 F.2d 524, 531 n.7 (6th Cir.

1985) (en banc) (“Prisoners may not dictate to the state the method by

which access to the courts will be ayers }- Accord, Cepulonis v.

Fair, 732 F.2d 1, 6 (ist Cir. 1984) (° requires only ' uate

law libraries or adequate assistance trained in the [aw,'

not both’); Ward v. Kort, 762 F.2d $56, 860 (10th Cir. 1985)

"Under the State is free to make a choice .. . ."); Hooks v.

ainwrigh, 775 F.2d 1433, 1435 (11th Cir. 1985), cert. denied, 479

U.S. 913 (1986) (reversing a district court holding that “no plan

contemplating libraries alone could be sufficient due to inmate

illiteracy; * Bounds Court necessarily contemplated reliance on

inmate writ-writers or nonlawyer law clerks, see Johnson v. Avery,

393 U.S. 483 (1969)); Kelsey v. Minnesota, 622 F.2d 956, 958 (8th

Cir. 1980) (“government aoe not provide inmates with every possible

means of access to the courts").

Where female prisoners lack their male counterparts’ history of

“self-help” in the law, however, equal protection considerations may

require that library facilities be . 7 by assistance from a

rg Canterino v. Wilson, 5 . Supp. 174, 216 (W.D. Ky.

1982), aff'd. No. 86-6067, 1989 U.S. App. LEXIS 4789 (6th Cir.

n

1989) (unpublished), cert. denied, 493 U.S. 991 (1989).

- Smith v. Bonde 538 F.2d 541, 545 (4th Cir. 1975) (women

prisoners may not be afforded less access to legal research facilities

than male prisoners). See also Glover v. Johnson, 478 F. Supp.

12a

Although the Bounds Court noted that many states

provide some degree of professional or quasi-professional

legal assistance to prisoners under programs that "may

have a number of advantages over libraries alone," 430

U.S. at 830-31, the Court specifically stated that "a legal

access program need not include any particular element"

of this kind. /d. at 832. Inmates must be assured access

to courts that is "adequate, effective, and meaningful," id.

at 822, but the touchstone is access to courts, not access

to lawyers.

As the Supreme Court held in Pennsylvania vy. Finley,

481 U.S. 551 (1987), prisoners have no constitutional

right to be represented by state-paid counsel when

mounting collateral attacks upon their convictions. Even

where inmates on death row are concerned (and there are

no such inmates in Michigan, that state having no death

penalty), Bounds teaches that "“[t]he requirement of

meaningful access can be satisfied in various ways," and

“state legislatures and prison administrators must be given

‘wide discretion’ to select appropriate solutions." Murray

v. Giarratano, 492 U.S. 1, 14 (1989) (concurring opinion

of Kennedy, J., quoting Bounds, 430 U.S. at 833).

The prison library plan that was approved in Bounds

contemplated the establishment of approximately seven

core libraries to serve a prison population of about 10,000

people. 538 F.2d at 543-43, It was stipulated that "each

library [would] make use of one or two inmates as typists

to prepare court petitions and . . . supervise the day-to-

day use of the library. * * * Those inmates who work in

the libraries ... [would] be trained to the best extent

possible in researching legal questions and assisting

inmates in their research. They [would] also be permitted

to help illiterate and semi-literate inmates." /d. at 543,

1075, 1094-97, 1103 (E.D. Mich. 1979) (the fact that a women's

prison library was much smaller than the men's library at Jackson did

not constitute ~y discrimination, but the state was ordered to

continue offering the assistance of Prison Legal Services because the

women had no experienced inmate writ-writers and lacked any history

of self-help in the legal field).

a

13a

n.l. If North Carolina had implemented this plan, the

Bounds litigation would presumably have been at an end.

North Carolina did not properly implement the plan, as

it turned out. Almost a decade after the plan was

approved as satisfying the state's constitutional obligation,

the state still had no workable program for training inmate

paralegals to assist other prisoners in the use of the

libraries. See Harrington v. Holshouser, 741 F.2d 66, 69

(4th Cir. 1984). Notwithstanding the inadequacy of the

State's efforts in this area -- described by the Court of

Appeals as “a chronology of failure," id. -- the court

initially rejected the thesis that "the only way that the

State constitutionally can afford library access to its

inmates is by employing the services of a legal services

plan...." dd. at 70.

On remand, after the state had repeatedly failed to

respond to orders directing it to show that it was in

compliance with its plan, the district court finally

concluded that the only way to ensure that inmates

received meaningful access to the courts would be to

require the assistance of licensed counsel. Smith vy.

Bounds, 610 F. Supp. 597, 605-06 (E.D.N.C. 1985).

The plan adopted by the district court provided for ten

attorneys (one for every 1,000 prisoners), who were to be

made available under a contract with Legal Services of

North Carolina, Inc. Smith v. Bounds, 657 F. Supp.

1327 (E.D.N.C. 1986).

A Fourth Circuit panel affirmed the district court's

decision. It was uncontested, the panel said, that, among

other things, “the state had not demonstrated [even after

the passage of ten years] that it had provided for the

training and placement of any inmate paralegals." Smith

v. Bounds, 813 F.2d 1299, 1302 (4th Cir. 1987)

(emphasis supplied). The panel went on to make the

following observations:

“The district court did not conclude, as the

defendants contend, that prisoners have a

14a

constitutional right to access to an attorney. The

district court ordered a remedy of attorney

assistance because the state's program of law

libraries had failed to meet the defendants’

constitutional obligation of providing meaningful

access to the courts." Jd.

The panel opinion was approved by the court en banc ina

brief per curiam opinion that stressed the defendants’ long

history of failing to respond to the district court's orders

and concluded that the record showed “North Carolina

was unable or unwilling to implement its library plan

consistent with minimum constitutional requirements."

Smith v. Bounds, 841 F.2d 77, 78 (4th Cir.) (en banc),

cert. denied, 488 U.S. 869 (1988).

The Director of the Michigan Department of

Corrections has not engaged in the sort of contumacious

conduct attributed to the North Carolina authorities in the

Bounds litigation. Absent such conduct, we see no

justification for the federal courts to require the authorities

in Michigan to use taxpayer dollars to hire attorneys-at-

law for the preparation of prisoner lawsuits. 6

It may well be a good idea for Michigan to provide

lawyers for prisoners who want to bring lawsuits of their

own. Federal judges, however, should be ever mindful of

the obvious fact that not all good ideas are mandated by

the Constitution. Hooks v. Wainwright, 775 F.2d 1433,

1438 (llth Cir. 1985), cert. denied, 479 U.S. 913

(1986). As Justice O'Connor succinctly put it in her

concurting opinion in Murray y. Giarratano, 492 U.S. -

13 (1989), “[b]eyond the requirements of Bounds, the

Sin many cases, it should be remembered, the taxpayers will

already have paid for attorneys to represent the prisoners in their

criminal trials and in their direct appeals. A ximately 20 attorneys

on the staff of the State Appellate Defenders. Office, for example,

resent indigent Michigan prisoners in s as of right. Hadix,

694 F. Supp. at 275. That kind of legal aid is, of course, a horse of a

different color; we are concerned here with civil actions in which the

ae is -_ plaintiff, not criminal actions in which the prisoner is

lda

matter is one of legislative choice based on difficult policy

considerations and the allocation of scarce legal

resources." (Emphasis supplied. )?

In our constitutional democracy, as we understand it,

legislative choices are to be made by legislators who are

subject to removal by the people, and not by judges who

enjoy office for life. See San Antonio Ind. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 31 (1973) (courts lack both

authority and competence to assume a legislative role); cf.

Kelley v. Metropolitan Co. Bd. of Educ., 836 F.2d 986,

996 (6th Cir. 1987), cert. denied, 487 U.S. 1206 (1988).

A "'mother knows best’ approach should play no part in

traditional constitufional adjudication.” Murray vv.

Giarratano, 492 U.S. 1, 11 (1989) (plurality opinion of

Rehnquist, C.J.).8

But the conclusion that Michigan need not provide

attorneys to prepare prisoner lawsuits does not end our

inquiry. Standing alone, law libraries that are adequate

for prisoners who know how to use them and who have

reasonable physical access to their collections are not

adequate for prisoners who cannot read and write English,

or who lack the intelligence necessary to prepare coherent

pleadings, or who, because of protracted confinement in

administrative or punitive segregation or protective

custody, may not be able to identify the books they need.

Under the library plan that was considered by the

Supreme Court in Bounds, as we have seen, the libraries

would not have stood alone; it was contemplated that

trained inmates would be made available for helping the

illiterate and semi-literate, for performing or helping in

7*Prison administration is, moreover, a task that has been

committed to the responsibility of [the legislative and executive

branches of government], and tion of ers concerns counsel a

Prost of judicial restraint.” Turner v. Gafey, 482 U.S. 78, 85

1987).

8For a somewhat different view, see Feikens, “Federal Courts

ne Society Today: Should They?” 1991 Det. L. Rev.

l :

16a

the performance of legal research, and for typing court

petitions. It does not appear that comparable assistance

has been provided, to the extent required, in the Michigan

prisons. Judge Enslen found, for example, that librarians

at Jackson's North and South Complexes were not

competent to perform legal research; that inmates hired

there as law clerks were not allowed to assist other

inmates in their legal research; and that "the often-fabled

jailhouse lawyers or writ-writers are, at least in the

Michigan system, too few and often too uninformed to

provide adequate assistance to the inmates." Knop, 667

F. Supp. at 488. As far as Jackson's Central Complex is

concerned, similarly, Judge Feikens found that neither the

librarians nor the inmate library clerks were sources of

legal assistance; that the assistance available from

jailhouse lawyers and inmate paralegals was "unreliable"

and "restricted by financial, security, and other

constraints;" and that outside attorneys were not available

with any certainty, particularly for the substantial

percentage of inmates (between 20% and 50%) who are

unable to explain their grievances in writing. Hadix, 694

F. Supp. at 284-85.9 The records contain evidence of a

number of specific instances where unassisted inmates

suffered individualized harm because of inability to use

library resources properly.

We do not disagree with the conclusion, reached by

both of the district courts, that something more was

required in the way of paralegal assistance. It is

fundamental that a prisoner who claims to be confined

unconstitutionally must be allowed to state his case to a

court. Some such prisoners, given iaw books and

Sinmates who are reasonably articulate, on the other hand, and

who have legitimate constitutional claims cognizable under 42 U.S.C.

§ 1983, are often able to retain outside counsel. The bar is not

unaware that 42 U.S.C. § 1988 authorizes the award of reasonable

attorney fees to plaintiffs who prevail in § 1983 actions, and such

awards are sometimes substantial. See, for example, Roland y.

Johnson, No. 91-1460, 1992 U.S. App. LEXIS 22047 (6th Cir.,

September 4, 1992) puepetiaied » where the lawyers for a Michigan

prisoner who me in a § 1983 action are receiving a fee of

almost $150,000.

17a

simplified pleading forms of the sort furnished by the

courts, can handle the task adequately themselves.

Others, for reasons fully explained in the opinions of both

district courts, cannot. For prisoners of the latter sort, as

a practical matter, there can be no meaningful access to

the judicial system unless some literate person is available

to reduce their stories to intelligible written pleadings.

To the extent that inmate writ-writers, or jailhouse

lawyers, are not adequately filling the needs of prisoners

who claim they are being held unconstitutionally, the state

must furnish, at a minimum, the functional equivalent of

jailhouse lawyers who are up to the job. This means

paralegals -- not necessarily individuals who have

completed two-year training courses designed for

document-managers at large corporate law firms, but

intelligent laypeople who can write coherent English and

who have had some modicum of exposure to legal

research and to the rudiments of prisoner-rights law.

"Although legal training need not be extensive, Bounds

does require that inmates be provided the legal assistance

of persons with at least some training in the law." Gluth

v. Kangas, 951 F.2d 1504, 1511 (9th Cir. 1991) (citations

omitted).

The order of the district court in Hadix contemplates

that Prison Legal Services will “represent” inmates in a

variety of civil matters. The court's verb choice is

significant, and it reflects, we think, a misunderstanding

of what the Supreme Court has said the Constitution

requires. Inmates who have signified a desire to go to

court to present civil rights claims or claims for post-

conviction relief are not ipso facto entitled to legal

representation. They are entitled, rather, to "access" --

which means getting the courthouse door opened in such a

way that it will not automatically be slammed shut on

them. Once access has been attained, whether through a

complaint that is entirely homemade or through one

prepared by or with the help of a writ-writer or paralegal,

the court can decide whether the case presented is one that

EE ————————

18a

calls for the appointment of a lawyer to represent the

plaintiff.

Under 28 U.S.C. § 1915(d), the court may request an

attorney to represent any indigent prisoner litigant -- but

"[a]ppointment of counsel pursuant to 28 U.S.C.

§ 1915(d) is not appropriate when a pro Se litigant's

claims are frivolous . . . or when the chances of success

are extremely slim." Childs v. Pellegrin, 822 F.2d 1382,

1384 (6th Cir. 1987), quoting Mars v. Hanberry, 752

F.2d 254, 256 (6th Cir. 1985). If the court does not

choose to see that the litigant receives legal

representation, the state obviously has no independent

duty to provide such representation. And the State, as

Judge Enslen correctly noted, "is not obligated to do

anything more than assist inmates at the pleading stage."

Knop, 667 F. Supp. at 494. The required assistance, as

we have seen, falls considerably short of legal

“representation. *

Although the Knop court acknowledged that "a district

court must impose the least intrusive remedy available,”

685 F. Supp. at 637 (internal quotes omitted), and must

allow the defendants to choose their preferred method of

providing at least minimally adequate access to the courts,

id. at 641, we believe that the final order in Knop was

more intrusive than necessary. The defendants submitted

a plan for providing assistance for certain prisoners

through paralegals employed and Supervised by the state.

The court rejected this approach because (1) it failed-to

assure that prisoner-paralegal communications would

receive the kind of confidentiality that attaches to lawyer-

client communications, (2) it required prisoners to waive

any right to sue the paralegals for malpractice, and (3) it

created an unacceptable degree of conflict of interest, the

paralegals not being independent of the state. /d. In

place of the state's plan, the court ordered the Department

of Corrections to obtain paralegal services from a non-

profit corporation controlled by a board of directors on

which both the prisoners and the department would have

representation. /d. at 647. The program of legal services

19a

furnished by the corporation was to be operated under

detailed bylaws developed by the board and approved by

the court. /d. Other than appointing a minority of the

corporation's board of directors and paying all the bills,

the state was evidently to have little to do in seeing to the

provision of paralegal assistance.

It is far from self-evident that access to courts cannot be

assured without having paralegals hired by a legal services

corporation that has been created to insulate the paralegals

from supervision, direct or indirect, by those whom the

electorate have chosen to govern. We note that under the

laws of the Commonwealth of Virginia, for example,

"unit attorneys" are appointed directly by the state

government to serve as legal advisors, or “talking

lawbooks," for inmates wishing to bring incarceration-

related litigation. See Murray v. Giarratano, 492 U.S. 1,

5 (1989); cf. Giarratano v. Murray, 668 F. Supp. 511,

514 (E.D. Va. 1986). Even as to prisoners on death row,

five of the current justices of the United States Supreme

Court concluded, in Giarratano, that Virginia's scheme

does not violate the Constitution. And the dissenting

opinion of Justice Stevens, joined by the remaining three

justices (two of whom are no longer members of the

Court), did not assert that the Virginia plan would be

constitutionally inadequate for prisoners who have not

been sentenced to death.

Johnson v. Avery, 393 U.S. 483 (1969), is also

instructive in this connection. Because Tennessee

provided no meaningful alternative for prisoners who

wished to seek post-conviction relief, the United States

Supreme Court held that Tennessee could not impose a

blanket prohibition against inmates setting themselves up

as_ writ-writers for other inmates. "Jails and

nitentiaries," said the Court, “include among their

inmates a high percentage of persons who are totally or

functionally illiterate, whose educational attainments are

slight, and whose intelligence is limited." /d. at 487.

Such persons are not automatically entitled to appointed

counsel when they indicate they wish to seek post-

20a

conviction relief, the Court declared, which is why the

state must at least let them consult with prisoner writ-

writers -- and must do so notwithstanding that such writ-

writers “are sometimes a menace to prison discipline and

that their petitions are often so unskillful as to be a burden

on the courts which receive them." /d. at 488.

The Johnson Court noted with apparent approval that

"[a]t least one State employs senior law students to

interview and advise inmates," while other states have

public defenders, paid from public funds, available to

consult with prisoners on habeas corpus matters. /d. at

489. Without expressing any judgment concerning such

psans, the Court noted that they demonstrate the

availability of “techniques . . . to provide alternatives if

the State elects to prohibit mutual assistance among

inmates." Jd. at 489-90.

Neither a system involving tlie direct employment of

legal personnel by a state nor a system of mutual

assistance among inmates could guarantee avoidance of

the type of potential conflict of interest by which the Knop

court was troubled. Neither system, similarly, could

assure a prisoner whom the system had failed that he

would have a reasonable chance of obtaining a collectable

judgment for malpractice. And where unregulated inmate

writ-writers are concerned, at least, it seems doubtful that

the confidentiality of inmate communications could be

assured. Such considerations simply did not seem to

trouble the Johnson court -- one reason, in all

probability, being that the Court obviously did not think

of writ-writers as providing legal representation. |

In Wolff v. McDonnell, 418 U.S. 539 (1974), finally,

the Supreme Court declared that illiterate inmates

involved in prison disciplinary proceedings “should be

free to seek the aid of a fellow inmate, or if that is

forbidden, to have adequate substitute aid in the form of

help from the staff or from a sufficient! competent

inmate designated by the staff." Id. at 570 (emphasis

supplied). Here again, the Supreme Court seems to have

2la

been far less concerned than was the Knop court about

reliance on assistance provided by employees of the state.

Perhaps the advantages of placing all prisoner paralegals

on the payroll of a non-profit corporation would outweigh

the disadvantages of doing so. We do not believe,

however, that the courts may appropriately tell the

Department of Corrections how to strike this balance.

"Injunctive relief against a state agency or official must be

no broader than necessary to remedy the constitutional

violation.” Toussaint v. McCarthy, 301 F.2d 1080, 1086

(9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

Fundamental precepts of comity and federalism admit of

no other rule -- and such precepts “are perhaps nowhere

more compelling than in actions seeking relief against

unconstitutional practices . . . in state penal institutions.”

Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir. 1984),

citing, among other cases, Preiser v. Rodriguez, 411 U.S.

475, 491-92 (1973); Hewitt v. Helms, 459 U.S. 460

(1983); Rhodes v. Chapman, 452 U.S. 337, 349 n.14

(1981); and Bell v. Wolfish, 441 U.S. 520, 548 (1979).

See also Turner v. Safley, 482 U.S. 78, 88-89 (1987);

Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989); and

Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748,

753 (1992). If the State of Michigan wishes to facilitate

its prisoners’ access to the courts by furnishing assistance

through paralegals hired and supervised by the state itself,

we think it should be permitted to do so.

B

We turn next to the question of the types of legal

matters to which the state's obligation of affirmative

assistance extends. The Knop order requires only that the

prisoners be furnished paralegal assistance for making

collateral attacks upon their convictions and for

challenging the conditions of their confinement; the Hadix

order, as we have seen, requires legal assistance for a

variety of additional purposes, including the handling of a

broad spectrum of civil matters in which inmates have

been named as defendants, as well as matters in which an

22a

inmate must commence suit in a timely manner or suffer

his claim to be barred by laches or a statute of limitations.

Other courts of appeals have declined to extend the

Bounds rule beyond assistance in initiating habeas corpus

proceedings (the type of lawsuit addressed in Johnson v.

Avery, 393 U.S. 483) and civil rights actions involving

constitutional claims (a form of action which the Supreme

Court has held cannot reasonably be distinguished from

the habeas action. Wolff v. McDonnell, 418 U.S. 539,

577-80 (1974)). See, e.g., Nordgren v. Milliken, 762

F.2d 851, 855 (10th Cir.), cert. denied, 474 U.S. 1032

(1985); Morrow v. Harwell, 768 F.2d 619, 623 (Sth Cir.

1985) (semble). Our own court, similarly, has read

Bounds as requiring affirmative assistance for incarcerated

juveniles only in “the preparation of legal papers in cases

involving constitutional rights and other civil rights

actions related to their incarceration." John L. v. Adams,

969 F.2d 228, 235 (6th Cir. 1992). As to other types of

civil actions, although "states may not erect barriers that

impede the right of access of incarcerated persons,” we

held that a requirement of affirmative assistance would be

“an unwarranted extension of the right of access." /d. at

235-36. If such a requirement is unwarranted for

incarcerated juveniles, it is unwarranted for incarcerated

adults.

It might be a good idea for the taxpayers of Michigan to

provide legal assistance for prisoners in all civil matters as

to which a need can be demonstrated, just as it might be a

good idea for the taxpayers to provide such assistance for

the populace at large. Again, however, we return to the

obvious truth that not every good idea is mandated by the

Constitution. And if the ordinary law-abiding

Michigander has no constitutional right of access to the

public purse for legal assistance on claims involving such

things as domestic relations, personal injury, deportation,

workers compensation, social security, detainer, wills and

estates, and taxation, it does not seem to us that such a

constitutional right springs into existence by virtue of the

23a

needy person's having been convicted of a crime and

sentenced to prison.

Ill

In the Civil Rights of Institutionalized Persons Act of

1980, 42 U.S.C. §§ 1997 et seg., Congress provided for

the granting of continuances in prisoner civil rights

actions “in order to require exhaustion of such plain,

speedy, and effective administrative remedies as are

available." 42 U.S.C. § 1997e(a)(1). In this connection,

Congress directed the United States Attorney General to

"promulgate minimum standards for the development and

implementation of a plain, speedy and effective system for

the resolution of [state prisoners'] grievances... ." 42

U.S.C. § 1997e(b)(1). Such grievance resolution systems

as may be “voluntarily submitted" by individual states are

to be reviewed by the Attorney General and may be

certified by him as being in compliance with the minimum

standards. 42 U.S.C. § 1997e(c)(1). The failure of a

State to adopt an administrative grievance procedure

meeting the prescribed standards cannot constitute the

basis of an action by the Attorney General, however,

notwithstanding the Attorney General's power, under

§ 1997a, to sue states that are believed to be depriving

prisoners of their civil rights. 42 U.S.C. § 1997e(d).

Although adoption of a prisoner grievance system

designed to meet federal standards is not mandatory under

the act passed by Congress, it has been made mandatory

for the Central Complex at Jackson under the order issued

by the court in Hadix. Agreeing with the findings of "two

court-appointed experts ... that-the current grievance

program is ineffective and unresponsive to the needs of

both the inmates and the Central Complex

administration," 694 F. Supp: at 296, the district court

ordered the Department of Corrections to draft policy

directives to meet standards promulgated by the Attorney

General for grievance programs. /d. at 297. The court

went on to specify in some detail how this would be done

with respect to such matters as inmate review of the

r

24a

grievance program, representation of the entire Central

Complex inmate population in the review process, and

employee participation in an advisory role. /d. The court

further ordered that the grievance process should

incorporate a series of discrete steps specified by the

court; that the Department of Corrections should

"implement personnel changes as recommended by

Professor Wolfson [one of the court-appointed experts] in

his study," including the hiring of qualified persons to

serve as grievance investigators, members of grievance

panels, grievance coordinators, and “other personnel as

necessary for the objectives;" that certain of the newly

hired persons ("grievance coordinators independent of the

Department of Corrections, [hired] to oversee the work of

the grievance investigators and the grievance panels")

should provide yearly reports evaluating the performance

of the grievance system; that persons involved in the

grievance process should be provided training in

investigation and mediation techniques; and that "the

Department of Corrections shall commission a periodic

“review of the grievance system at the Central Complex b

an outside body." Jd. at 297-98. The district court feit

that a restructured grievance program would reduce the

workload of the courts by encouraging administrative

resolution of disputes that currently wind up in court.

The modifications that the Department of Corrections was

directed to make in the existing grievance system were

said to be "minimal but necessary." /d. at 298.

Desirable though many of these provisions may be, they

do not strike us as "minimal." Neither do they appear to

come within the ambit of the issues reserved bythe

consent decree for resolution by the court. And be that as

it may, they certainly do not represent the least intrusive

remedy that can vl gooey as necessary to vindicate

inmates’ constituti right of access to the courts. If

prisoners currently exercise their right of access to the

courts on a broader scale than the courts would like, that

hardly justifies judicial intervention in the state's

administrative system under the guise of protecting the

right of access to, of all things, the courts! “Federal

25a

courts may not order States or local governments, over

their objection, to undertake a course of conduct not

tailored to curing a constitutional violation that has been

adjudicated." Rufo v. Inmates of Suffolk County Jail, 112

S. Ct. 748, 762 (1992). This part of the Hadix order

looks to us like judicial legislation run wild.

IV

Subsequent to issuance of the order in Hadix, the

defendant moved for a new trial on the strength of what

appeared to be ex parte communications between the court

and a key witness for the plaintiffs. The motion was

denied in an order (docket item 505) wherein the court set

forth the pertinent facts in considerable detail. The

defendant contends on appeal that the Hadix court

committed reversible error in failing either to recuse itself

or to grant a new trial.

The communications in question followed a request that

Judge Feikens made in open court during testimony

presented by Sandra Girard, the Director of Prison Legal

Services, Inc. The court asked Ms. Girard if she would

prepare a written memorandum describing the impact on

Prison Legal Services of frequent prisoner transfers

necessitated by overcrowding. Ms. Girard said she

would, agreeing, at the court's request, to send copies to

counsel. No objection was made by the defendant.

In response to the court's request, Prison Legal Services

prepared a nine-page memorandum dated March 11,

1988. Copies were sent to the court and to counsel.

A few days later Judge Feikens sent Sandra Girard a

letter asking further questions. Although defense counsel

initially disclaimed receipt of a copy of this letter, which

is not part of the official court record, it is now conceded

that copies were sent to counsel. Ms. Girard responded to

the court's request by furnishing a survey and related

materials describing legal services programs in other

26a

States. It is undisputed that defense counsel were

provided copies.

Following his review of the new materials, Judge

Feikens had his law clerk telephone Ms. Girard to ask

about the availability of further background materials.

Pursuant to this inquiry, Ms. Girard sent the court a

letter, with a copy to counsel, offering to provide, among

other things, certain questionnaires dealing with legal

services programs in other states. Judge Feikens then had

his law clerk telephone Ms. Girard again and request

copies of the materials referred to in her letter. A third

package of documents was submitted to the court in

response to this request, with copies of the transmittal

letter going to counsel. This led to the filing of written

objections by the defendant and, ultimately, to the motion

for new trial.

This court has made it clear that it is "impermissible for

a trial judge to deliberately set about gathering facts

outside the record." Price Bros. Co. v. Philadelphia

Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980).

Moreover, “a judge may not direct his law clerk to do that

which is prohibited to the judge." id. Ex parte

communications from a judge's chambers to one side in a

contested lawsuit are “clearly at odds with our adve

system of justice." Price Bros. Co. v. Philadelphia Gear

Corp., 649 F.2d 416, 425 (6th Cir. 1981) (Merritt, Bas

concurring). In view of these principles, Judge Feikens'

requests for additional information should have been

placed on the record, and the one-on-one telephone calls

from the court's law clerk to the plaintiffs’ key witness

should not have been made.

In context, however, these lapses appear relatively

harmless. Because Ms. Girard was consistently

scrupulous about sending counsel copies of her letters --

as the court doubtless expected her to be -- the court was

furnished nothing that counsel did not know about. Judge

Feikens has expressly stated, moreover, that "[njone of

the documents included in the three packages of materials

ne ee

27a

submitted by Girard in response to inquiries made by the

Court formed any basis for my findings of fact or my

conclusions of law in my Memorandum Opinion and

Order filed July 1, 1988." Doc. entry 505. We have no

reason to question this, and we find no error in the denial

of the defendant's motion.

The only remaining issue raised on appeal in Hadix is

whether the Hadix court erred in taking judicial notice of

proofs in Knop without notice to the defendant. Our

disposition of the appeals makes it unnecessary to address

this question.

Vv

The access to courts claim that was tried in Knop

contained a sub-issue not presented in Hadix: the

constitutionality of the prison officials’ system of handling

mail sent to inmates by courts and by counsel.

Concluding that there were problems in this area, the

court ordered implementation of a system-wide policy

insuring that legal mail will be opened only in the

presence of the addressee if that is the addressee's wish.

The Knop court also heard evidence on three additional

claims: (1) that prisoners had been subjected to cruel and

unusual punishment by reason of the Department's alleged

failure to provide proper winter clothing; (2) that the lack

of toilets and washbasins in certain locked cells

constituted cruel and unusual punishment; and (3) that

inmates were denied equal protection of the law by a

variety of practices claimed to reflect racial

discrimination.

The district court granted a measure of relief on each of

these claims. Taking judicial notice of the severity of

Michigan's winters, the court ordered that inmates who

were required to go outside in the wintertime be provided

adequate clothing, including hats and gloves or mittens

and, where appropriate, boots. The installation of in-cell

flush-toilets was ordered in certain units at the Riverside

28a

facility. And with regard to racial discrimination, the

Department of Corrections was ordered to forward all

prisoner grievances on the subject to the Legislative

Ombudsman's Office. Both sides have appealed from the

district court's order on the racial discrimination question,

and the defendants have appealed on the other issues.

A

Under Michigan's established policy, privileged mail is

to be opened only in the presence of the addressee

prisoner if the prisoner has opted to request such

treatment. During their orientation to the prison system,

inmates receive a handbook that is supposed to explain the

privileged mail policy, along with a variety of other

matters. The policy is explained orally as well.

In practice, the policy varies from institution to

institution. The handbooks used at some facilities do not

explain the policy clearly or do not discuss it at all. At

Jackson and Marquette, mail from any attorney is treated

as privileged after an inmate notifies the mailroom that he

has an attorney. At the Reformatory, cm mail from

attorneys specified by the inmate receives such treatment.

The district court found no constitutional infirmity in

the opt-in system as such, but did find that the authorities’

method of implementing the system, particularly at the

Reformatory, permitted needless infringement of the

inmates’ right to confidentiality in their communications

with counsel. The court observed that it is not uncommon

for a prisoner to receive mail from a court-appointed

attorney before the inmate knows the attorney's identity.

The court therefore ordered implementation of a uniform

policy at all facilities, with inmates being asked at intake

whether they wish to invoke their privilege of being

present at the opening of legal mail. Where the response

is affirmative, all incoming mail from attorneys and from

the courts is to be treated as privileged mail.

;

'

29a

A prisoner's right to receive mail is protected by the

First Amendment. See Pel! v. Procunier, 417 U.S. 817,

822 (1974); Parrish v. Johnson, 800 F.2d 600, 603 (6th

Cir. 1986). In criminal settings, the Sixth Amendment

protects the attorney-client relationship from unwarranted

intrusion. Wolff v. McDonnell, 418 U.S. 539, 576

(1974). Prison officials may, of course, impose

restrictions that are “reasonably related" to the prison's

security needs or other “legitimate penological

objectives." Turner v. Safley, 482 U.S. 78, 87 (1987).

Our court has said that prison officials must “put forth

legitimate reasons for interfering with a prisoner's

incoming mail.” Parrish, 800 F.2d at 604.

We agree with the conclusion of the district court that

prisoners may not be required to designate particular

attorneys in order to activate privileged treatment of their

legal mail. The district court acted properly in requiring

that each prisoner receive written notice of the legal mail

policy upon intake and in eliminating any requirement that

requests for = treatment of legal mail be renewed

upon transfer from one facility to another.

B

The district court found that the defendants were failing

to provide inmates with adequate winter clothing. This

finding was not clearly erroneous. We cannot agree with

the defendants’ argument that the district court wrongly

‘substituted its judgment for that of prison authorities. The

Eighth Amendment prohibits punishment that "involve[s]

the moe and wanton infliction of pain." Rhodes v.

Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.

Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)).

Exposure to Michigan winters without adequate clothing

can obviously inflict pain. No legitimate government

interest is served by withholding adequate clothing, and

the district court was justified in ordering the remedy it

did.

30a

i

Certain cells at Riverside lack flush-toilets and wash

basins with running water. Inmates in these cells use

central lavatory facilities as permitted by prison officers.

There are occasions when access to the central toilets is

not permitted, necessitating the use of nonflushable

receptacles in the inmates’ cells. The court found the

Riverside facilities to be generally clean, with the

exception of areas where urine may have been spilled on

the floor.

Access to toilets varies among four population groups at

Riverside. One hundred thirty cells in the Riverside

reception and guidance center lack toilets and wash

basins. Inmates in the center are locked in their cells

approximately 18 hours per day, being out of the cell

three times a day for meals and once for recreation.

Inmates receive portable urinals on their arrival, and some

inmates use these to throw urine and feces into the

courtyard. The court found that the defendants failed to

provide inmates in the reception area with regular access

to bathroom facilities, forcing them to relieve themselves

in their cells. The court concluded that this was a

violation of the Eighth Amendment.

Ninety-six cells in the protective custody unit lack

toilets and basins. Protective custody inmates are locked

in their cells each night from about 10 or 11 p.m. to 6 or

6:30 a.m. During the day they are generally out of their

cells. Officers frequently let inmates out during the night

to use the toilet facilities. Nonetheless, the court found

that inmates faced a substantial risk of not —s allowed

to use the toilet facilities upon request and were frequently

forced to urinate or defecate in their cells. In the court's

view this was unconstitutional.

Approximately 20 inmates are housed in the

administrative segregation unit. These inmates are

confined to their cells except for a daily recreation period

of one hour and during toilet trips. Officers make regular

3la

bathroom runs four or five times a day and make rounds

every 30 minutes, at which time inmates can request to

use the toilet. These requests are not always granted,

however, particularly during the late night and early

morning. The court found this to be unconstitutional.

We do not agree that it violates the Eighth Amendment

to require prisoners to use nonflushable toilets on

occasion. The drafters of the Eighth Amendment used

them, after all, and countless millions of modern

Americans have done so too. The district court

"specifically flound] that the [Riverside Correctional

Facility] and the [Riverside Psychiatric Center] generally

are clean facilities, that defendants maintain clean

hallways, and, with the exception of areas where urine

may be spilled on the floor, that the cells are clean.” 667

F. Supp. at 480 (citations omitted). The “[d]efendants

established ... that correctional officers frequently let

inmates out during the night to use the toilet facilities."

Id. at 481. In light of these findings, we do not believe a

constitutional violation can be shown on the basis of

additional findings that inmates “do use their urinals in

their cells, and on occasion even are forced to defecate in

their cells,” or that inmates regularly throw urine and

feces into the courtyard. Id.

D

The district court found that black inmates are not

intentionally discriminated against on a classwide basis in

terms of their placement in protective custody; that there

is no intentional racial discrimination with respect to

eating areas, food serving lines, or servers; and that racial

disparities in job assignments do not represent a

widespread or general pattern of discrimination. The

court found further that although prison officials do not

condone incidents of racially discriminatory punishment

of inmates, they have condoned racial slurs. This form of

racial harassment was found to represent a policy,

practice, or custom of the Department of Corrections, and

rs

32a

the court ordered the defendants to submit a remedial

plan.

Because the plan ultimately submitted was considered

inadequate, the court took the (in its words) “somewhat

drastic step of mandating particular disciplinary actions."

Knop, 685 F. Supp. 636, 640. The order prescribed a

detailed grievance system to be operated under the

supervision of-.the Legislative Ombudsman's Office.

Pursuant to the procedure described in First National

Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir. 1976),

the court subsequently indicated that it was prepared to

modify this portion of the order to reflect the fact that the

court had no jurisdiction over the Ombudsman's Office.

Instead of telling the Ombudsman's Office what to do, the

court proposed to order the defendants to contract with

that office, or with a similar independent agency, to

implement the grievance and disciplinary procedure

outlined in the court's order.

We have recognized that racial harassment by

government employees can violate rights protected by the

Equal Protection Clause. Poe v. Haydon, 853 F.2d 418,

429 (6th Cir. 1988), cert. denied, 488 U.S. 1007 (1989).

Supervisory officials, however, are not liable for

harassment by their subordinates absent "a showing that

the supervisor encouraged the . . . misconduct or in some

other way directly participated in it." Bellamy v. Bradley,

729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845

(1984). The defendants’ failure adequately to investigate

claims of racial harassment in this case did not, in our

view, rise to the level of "encouragement." The detailed

grievance procedure set forth in the district court's order,

moreover, intrudes unnecessarily in the state's operation

of its prisons. Part III of the order, set forth at 685 F.

Supp. 644-46, will therefore be vacated.

Shortly before trial, the plaintiffs altered their

discrimination-in-employment claim to assert that the

defendants’ anti-discrimination policy was unconstitutional

because it set a limit on minority employment. The

ee

|

33a

district court correctly recognized that the altered claim

pitted members of the class against each other, and it

decertified the class with respect to the claim. The

plaintiffs do not challenge the partial decertification, but

they contend that the court erred in failing to decide the

individual claims of the named plaintiffs. As the

defendants point out, however, the court was not asked to

do so.

VI

The district court imposed sanctions against the

defendants and their counsel under Rule 11, Fed. R. Civ.

P., for the filing of four pretrial motions for summary

judgment. The court determined that the motions were

legally untenable and had been filed for an improper

purpose. Finding that the district court did not “base[ ] its

ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence,” and thus did not

abuse its discretion, Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990), we uphold the imposition of

the sanctions.

The judgments of the district courts are AFFIRMED in

part and REVERSED in part. The remedial order

entered by the district court in Hadix is VACATED, Parts

I, III and IV A of the remedial order entered by the

district court in Knop are VACATED, and both cases are

REMANDED to the United States District Court for the

Western District of Michigan for further proceedings not

inconsistent with this opinion.

34a

APPENDIX

SECTION VI OF CONSENT DECREE

VI. Access to Courts

‘.

Each General Population inmate may use the

law library at least six hours per week in two-

hour segments. To accommodate this use, the

law library shall remain open at least 55 hours

per week, with at least one-third of those hours

during evenings after 5:00 p.m. and weekends.

The law library will remain open additional

hours as staff becomes available. Prisoners

who have pending court cases requiring

additional law library time in excess of the six-

hour guarantee will be allowed the additional

access necessary.

Within 30 days after the entry of the Judgment

in this matter, the Department will initiate

procedures to order for the main law library, to

the extent not currently provided, each of the

publications listed in Appendix B, "Minimum

Collection for Main Law Libraries," with the

addition of a complete edition of Michigan

Compiled Laws Annotated. For each required

publication, the Department shall have a

subscription for revised additions, pocket parts,

or advance sheets which shall be made

available for prisoner use forthwith upon —

delivery to the institution. Periodically, at six-

month intervals, Defendant shall survey each

collection to identify missing or mutilated

volumes. All missing or mutilated volumes,

however discovered to be missing or mutilatd,

will be replaced or restored promptly.

Inmates in Administrative Segregation or

Protective Custody shall be guaranteed two

hours per week direct personal access to a

limited law library collection as indicated in

35a

Appendix B, “Minimum Collection for

Administrative Segregation Law Libraries." In

addition,. on three days each week, such

inmates may request five volumes brought to

them from the main law library collection

unless the particular volumes are loaned to

another inmate. These volumes shall be

delivered to the inmate in segregation on the

day following the day on which requests are

collected. The book(s) may be collected after

24 hours.

. Law library facilities shall be maintained with

adequate ventilation and lighting with sufficient

space to accommodate the reasonable needs of

the inmates.

. The allotted time per prisoner for law library

use shall not include the time necessary to

travel to and from the library, but will include

only the amount of time actually spent in the

library.

. The detail system by which inmates in general

population presently gain access to the law

library shall be continued in order to assure

prisoner access to the law library.

. Special and additional library time shall be

allowed on a call out system to an individual

prisoner as needed, provided that he can

demonstrate a bona fide need as determined by

the supervisor of the law library. Such a bona

fide need shall include, but not be limited to,

Situations such as a deadline for filing briefs,

pleadings, responses to a pleading, or other

such documents with a court.

. Inmate staff working in the law library shall

not have the authority to deny other prisoners

access to the law library. Inmate staff shall be

36a

supervised by a professional librarian and staff

clerk.

9. The Department of Corrections shall provide

notarial services as necessary. Pursuant to the

request of plaintiffs, the Department of

Corrections shall post a notice at the prison law

library indicating that in many cases

declarations under penalty of perjury, in lieu of

formal affidavits, are allowed.

10. The Department shall enforce its policy for

treatment of privileged legal mail, including

mail from Federal, State and local courts,

governmental agencies, and attorneys, which

provides that such mail will not be read, that

upon the inmate's written demand, such mail

will not be opened except in the presence of

the inmate to whom the mail is addressed,

and that such mail may be opened to search

for contraband. The Department further shall

— that inmates shall seal all outgoing

egal mail which prison officials shall then

cause to be posted unopened in the U.S. mail.

il. Paralegal training will be instituted at the

State Prison of Southern Michigan as a

regular educational program under the

auspices of Jackson Community College.

12. Electric typewriters shall be permitted.

13. Any property limitation imposed on prisoners

shall not apply to legal papers and law books

except that if the quantity thereof conflicts

with important institutional goals such as

security or fire safety, a limitation may be

sought through the administrative hearing

ane The standard for imposition of a

imitation shall be whether the material in

37a

question is reasonably necessary to assist the

prisoner with respect to his pending litigation.

14. Each visiting attorney shall be afforded a

table and chair in a space providing suitable

privacy.

APPENDIX B

MINIMUM COLLECTION FOR MAIN LAW

LIBRARIES

MICHIGAN MATERIALS

1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39,

40-41)

OR

i (Vol. 1, 24, 24A, 25,

25A)

2. Michigan Digest (West) (all)

OR

Michigan Digest (Callaghan) (all)

3. Michigan Supreme Court Reports (Vol. 358 (1960) to

the present plus subscription to advance sheets)

4, Michigan Appeals Reports (Vol. 1 to the present plus

subscription to advance sheets)

7. Honigman and Hawkins - Michigan Court Rules

Annotated (all)

38a

8. Michigan Criminal Jury Instructions (all)

9. Hensel - in the Michi

FEDERAL MATERIALS

1. United States Code Annotated (Constitution volumes,

Titles 18, 28, 42)

2. Supreme Court Reporter (From Vol. 80 (1959) to the

present plus subscription to advance sheets)

OR

ni , Lawyers’

Edition, 2nd Series (From Vol. 4 (1959) to the

present plus subscription to advance sheets)

3. Federal Reporter, 2nd Series (From Vol. 300 (1962) to

the present plus subscription to advance sheets)

4. Federal Supplement (From Vol. 200 (1961) to the

present plus subscription to advance sheets)

5. Federal Practice Digest, 2d (all)

6. Shepard's United States Citations (all)

7. Shepard's Federal Citations (all)

8

. Wright - Federal Practice and Procedures (Vols. 1, 2

and 3) (Criminal)

9. Sokol - Federal Habeas Corpus (latest edition)

GENERAL MATERIALS

1. Corpus Juris Secundum (22, 22A, 23, 23A, 24, 24A,

24B (Vols. covering Criminal Law))

39a

2. Black - Black's Law Dictionary, Revised 4th Ed.

(1968)

OR

Ballentine - Ballentine's Law Dictionary, 3rd Ed.

(1969)

3. Cohen, M. - Legal Research in a Nutshell (latest

edition)

OR

Elias - Legal Research: How to Find and Understand

the Law

4. Bailey and Rothblatt -

Forms, 2nd Ed. (2 volumes)

5. Israel and LaFave - Criminal Procedure in a Nutshell,

2nd Ed. (1975)

rimioa! Low 2

Rubin - Law of Criminal Correction, 2nd Ed. (1973)

Werner - Manual for Prison Law Libraries (1976)

Dorsen, N. - The Rights of Prisoners (1973)

OR

Rudovsky, D. - The Rights of Prisoners (1973)

OR

Palmer, J.W. - Constitutional Rights of Prisoners

(1977)

- Fs

10. LaFave, W.R. - Principles of Criminal Law (1978)

40a

OR

LaFave and Scott, Handbook in Criminal Law (1972)

OR

Loewy, A.R. - Criminal Law in a Nutshell, 2nd Ed.

(1972)

Additional Volumes

A complete edition of MCLA for SPSM Main Law

Library.

INIMUM ECTION F MINISTRATIV

SEGREGATION LAW LIBRARIES

1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39,

40-41)

OR

Michigan Statutes Annotated (Vol. 1, 24, 24A, 25,

25A)

2. A treatise on Michigan criminal law and procedure

3. Superseded “advance sheets" of Shepard's Citations

(United States, Federal, and Michigan);

4. A treatise (e.g., Nutshell series) on prisoners’ rights;

5. A treatise on habeas corpus;

6. A general treatise on criminal law and on criminal

procedure;

7. A legal dictionary;

8. Federal rules of civil and criminal procedure;

4la

9. A Michigan Department of Corrections Resident

Guidebook; and

10. A list of the main law library holdings as periodically

updated.

42a

Gary KNOP, John Ford, William Lovett, II, Raman-

do Valeroso, Gus Jansson, Pat Sommerville, Vernard

Cohen, T. John Spytma, Robert Shipp, Butch Davis,

Ron Mixon, and Kerwin Cook, individually and on

behalf of all other persons similarly situated, Plaintiffs,

v.

Perry M. JOHNSON, Robert Brown, Jr., Dale Foltz,

John Jabe, Thedore Koehler, John Prelesnik, and Jack

Bergman, Defendants.

No. G84-651.

United States District Court,

W.D. Michigan, S.D.

(Aug. 10, 1987)

Elizabeth Alexander, Adjoa Aiyetoro & Nkechi Taifa-

Caldwell, National Prison Project, Washington, D.C., Patricia

Streeter, Detroit, Mich., for plaintiffs.

Thomas Nelson, Brian McKenzie, David Edick, Michigan

Office of the Atty. Gen., Lansing, Mich., for defendants.

OPINION

ENSLEN, District Judge.

This is a prison case that concerns conditions of confine-

ment at four major prisons in the Michigan system. It is a class

action proceeding in which the plaintiff class is composed of

all prisoners who are or will be confined by the Michigan

43a

Department of Corrections at the State Prison of Southern

Michigan (‘‘SPSM’’), located in Jackson, Michigan; the

Michigan Reformatory (‘‘MR’’), located in Ionia, Michigan;

the Riverside Correctional Facility (“‘RCF’’), also located in

Ionia, Michigan; and the Marquette Branch Prison (‘‘MBP’’)

(including the former Michigan Intensive Programming Center

(‘‘MIPC’’), which now is designated as A-Block of the MBP),

located in Marquette, Michigan.

The defendants in the case are the Director of the Michigan

Department of Corrections (‘‘MDOC’’), who now is Robert

Brown, Jr.; the Deputy Director of the MDOC and the Direc-

tor of the Bureau of Correctional Facilities, who now is Daniel

Bolden; the Warden of the State Prison of Southern Michigan,

who currently is John Jabe and who for most of the relevant time

period was Dale Foltz; the Warden of the Michigan Refor-

matory, who currently is Pamela Withrow and who for most

of the relevant time period was John Jabe; the Administrator

of the Reception and Guidance Center, John Prelesnik; the

Warden of the Marquette Branch Prison, Theodore Koehler;

and the Warden of the Riverside Correctional Facility; who

currently is Denise Quarles and who for part of the relevant

time period was William Abshirer. Pursuant to Rule 25(d)(1)

of the Federal Rules of Civil Procedure, new defendants

automatically have been substituted for original defendants as

they have succeeded them in office. The Court notes here

that although Jack Bergman was named as a defendant in his

former capacity as the Administrator of the MIPC, he effec-

tively has been dropped from the action because the MIPC

has been converted into A-Block of the MBP, under the con-

trol of Warden Koehler.

In their first amended complaint, filed on April 6, 1985, plain-

tiffs raised numerous grounds for relief against defendants.

On March 20, 1986, the Court severed the following four

FS ee

44a

issues for immediate trial: (1) whether the lack of toilets and

washbasins in certain locked cells at the RCF violates plain-

tiffs’ Eighth Amendment right not to be subjected to cruel and

unusual punishment; (2) whether defendants’ alleged failure

to provide plaintiffs with proper winter clothing also violates

their Eighth Amendment right not to be subjected to cruel

and unusual punishment; (3) whether defendants engage in

racially discriminatory actions concerning job assignments,

cafeteria serving lines, and the placement of inmates in ad-

ministrative segregation, punitive detention, and protective

custody in violation of plaintiffs’ Fourteenth Amendment right

to the equal protection of the law; and (4) whether defendants

are unlawfully interfering with plaintiffs’ constitutional right

of access to federal and state court systems. This last issue

includes the issue of whether defendants’ system for handling

inmates’ incoming legal mail is constitutional. On May 14, 1986,

the Court declined to sever for immediate trial plaintiffs’ claim

that defendants are not providing them with constitutionally

adequate mental health care because it has conducted

numerous hearings on that issue in connection with the Con-

sent Decree entered in the related case of United States v.

Michigan, No. G84-63 (W.D.Mich.).

After numerous pretrial motions, hearings, and other skir-

mishes between the parties, many of which Magistrate

Rowland handled, the Court conducted a thirty-five day bench

trial on the severed issues that was spread over five months;

June 1986, August 1986, October 1986, March 1987, and April

1987. During the trial it listened to testimony from 103

witnesses — seventy-eight for the plaintiffs and twenty-five

for the defendants — and received hundreds of exhibits into

evidence. There remain some unresolved evidentiary motions

that I will decide when I discuss the substantive issue to which

the evidence pertains. In accordance with Rule 52(a) of the

Federal Rules of Civil Procedure, the following opinion con-

Se ee

45a

constitutes the Court’s findings of fact and conclusions of law

on the’ severed issues.

Introduction to the Case

The prisoners who have brought this action are confined

in Michigan’s oldest and largest prisons. The Marquette

Branch Prison, which is located in Michigan’s Upper Penin-

sula, far away from the State’s major population centers, is

both a maximum security and a minimum security facility. The

maximum security inmates are housed inside the walls of the

prison. The inside prison has a rated capacity of 606 inmates,

which is broken down into three groups; 249 administrative

segregation cells; 262 cells for inmates in the general popula-

tion group; and 95 protective custody cells. The administrative

segregation units of the prison house the system’s most dif-

ficult to manage inmates and is predominately black. Pls. Exh.

510B. The prison also has a trustee division, which houses

the minimum security inmates and currently is predominately

white. Pls. Exh. 521A. The staff of the institution is over-

whelmingly white. Pls.Exh. 521Q; Transcript (‘‘T’’) of 3-16-87

at 12. The protective custody unit, which used to be the MIPC,

also is predominately white, although it is more evenly divid-

ed between black inmates and white inmates than the rest of

the institution. T of 3-17-87 at 93.

The systems’ largest facility is the State Prison of Southern

Michigan, which is located in Michigan’s Lower Peninsula near

the major population centers of Lansing, Grand Rapids, and

Detroit. The SPSM currently is composed of three complexes:

the centrai complex, the south complex, and the north com-

plex. The central complex houses close custody inmates, which

is the security level just below maximum security, and includes

inmates confined to administrative segregation and protective

custody. Inmates confined in the central complex are involv-

ed in this case only on the racial discrimination claim. The

46a

north complex is a medium security facility, while the south

complex is a minimum security facility. The inmates confined

in the central complex are overwhelmingly black; the racial

compositions of the south and north complexes are more even-

ly divided between black inmates and white inmates.

The Michigan Reformatory and the Riverside Correctional

Facility also are located in Michigan’s Lower Peninsula. The

MR houses both minimum security and close custody inmates.

The minimum security inmates are housed in the institution’s

trustee division. The close custody inmates are housed inside

the walls of the institution, are primarily if not exclusively under

the age of twenty-five, and are predominately black. The RCF

is located near the Reformatory and contains four housing

groups that are relevant to this case: protective custody, ad-

ministrative segregation, general population, and inmates go-

ing through reception or quarantine. Some of the cells in this

institution do not have a toilet or washbasin inside the cell.

Located in the same group of buildings as the RCF is the River-

side Psychiatric Center (‘‘RPC’’), which also contains some

cells that do not have a toilet or washbasin within the cell.

[1] The Court will divide its discussion of the severed

issues into five parts: (1) legal mail; (2) lack of adequate winter

clothing; (3) lack of in-cell toilets and washbasins at the RCF

and the RPC; (4) access to courts; and (5) racial discrimina-

tion. Following my discussion of the substantive issues, I will

briefly discuss for the benefit of the parties the appealability

under rule 54(b) and 28 U.S.C. § 1292 of my judgments on

those issues. Since plaintiffs’ claims generally implicate dif-

ferent constitutional provisions, I will discuss the applicable

legal standards in connection with each substantive claim rather

than in a general discussion at this point in the opinion. The

Court does observe that one overriding standard it has con-

sidered and applied throughout this opinion is the substan-

47a

tial deference it must give state prison officials, who have the

difficult task of determining how to run their institutions. See

Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800,

1807, 40 L.Ed.2d 224 (1974). Due to considerations of comi-

ty and federalism, a federal court should hesitate to interfere

in the operation of state prison systems, and should do so on-

ly when necessary to protect the constitutional rights of in-

mates. See Kendnck v. Bland, 740 F.2d 432, 437-39 (6th Cir.

1984). If a constitutional violation does exist, however, then

it unquestionably is the Court’s duty to remedy it. See Rhodes

v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 2402, 69

L.Ed.2d 59 (1981).

Rulings on the Severed Issues

I. Plaintiffs’ Legal Mail Claim

The Court will divide its discussion of plaintiffs’ legal mail

claim into three parts. First, I will discuss the applicable legal

standards. Secondly, I will discuss defendant’s system of pro-

viding privileged treatment for inmates’ incoming legal mail.

Finally, I will discuss whether defendants’ system is un-

constitutional in any respect.

Inmates retain ‘‘all first amendment [and other constitu-

tional] rights not incompatible with their status as prisoners,

‘or with the legitimate penological objectives of the correc-

tions system.’ ’’ Brooks v. Setter, 779 F.2d 1177, 1180 (6th

Cir.1985), quoting in part Pell v. Procunier, 417 U.S. 817,

822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). The

Supreme Court has recognized that in the context of incom-

ing inmate correspondence, a penal institution’s legitimate

security needs justify certain measures that may infringe on

inmates’ First Amendment and Sixth Amendment rights, as

well as their right of access to the courts. See Procunier v.

48a

Martinez, 416 U.S. 396, 412-413, 94 S.Ct. 1800, 1810-1811,

40 L.Ed.2d 224 (1974). These measures, as with other

measures affecting inmates’ constitutional rights, are valid if

they are ‘‘reasonably related’’ to the institution’s security

needs or other ‘‘legitimate penological interests’’. Turner v.

Safley, ____ U.S. , 107 S.Ct. 2254, 2261, 96

L.Ed.2d 64, 79 (1987). In evaluating whether a particular

measure satisfies this standard, a court must examine whether

there is ‘‘a ‘valid, rational connection’ between the prison

regulation and the legitimate governmental interest put for-

ward to justify it’’; whether ‘‘the governmental objective [is]

. .. a legitimate and neutral one’’; whether ‘‘alternative means

of exercising the right . . . remain open to prison inmates’’;

the ‘‘impact accommodation of the asserted constitutional right

will have on guards and other inmates, and on the allocation

of prison resources generally’’; and whether there are any

ready alternatives to the challenged regulation. Jd. ___ U.S.

___, 107 S.Ct. at 2261-62, 96 L.Ed.2d at 79-80. In the legal

mail context, prison officials bear the burden of putting ‘‘forth

legitimate reasons for interfering with a prisoner’s incoming

mail.’’ Parnsh v. Johnson, 800 F.2d 600, 604 (6th Cir.1986).

The Supreme Court has held that prison officials may open

legal mail sent to inmates and inspect it for the presence of con-

traband, although they cannot read the mail. Wolff v. McDonald,

418 U.S. 539, 574-77, 94 S.Ct. 2963, 2983-85, 41 L.Ed.2d 935

(1974). The Supreme Court indicated in Wolff, however, and

several other courts have explicitly held, that an inmate has

the nght to be present when prison officials open his legal mail

and inspect it for contraband. Jd. at 577, 94 S.Ct. 15 2985;

see, e.g., Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir. 1976);

see also Parnsh, 800 F.2d at 604 (citing cases). Employing

the standard established in Turner, is it fair to say that the

Supreme Court has already determined that a prison regula-

tion that allows officials to open and to inspect an inmate’s

incoming legal mail for contraband is reasonably related to a

ee

49a

legitimate penological interest and thus is constitutionally valid,

particularly if the inmate is allowed to be present during the

inspection process. See id. at 603-04. The real issue in this

case, thus, is whether there is anything about Michigan’s

system in particular that is unconstitutional.

Michigan’s system for treating legal mail as privileged, meaning

that plaintiffs have the right to be present when the mail is opened

and inspected for contraband, is contained in two administrative

rules and a policy directive. Administrative Rule 791.6603(4)

provides that ‘‘[p]ursuant to a specific written request by a

resident, mail which is clearly identified as coming from the

resident’s designated attorney or the corrections ombudsman

shall be opened and inspected for contraband in the resident’s

presence.’’ This rule clearly requires the inmate to invoke

his right to be present when mail coming from his attorney,

whom he must designate in advance, or from the corrections

ombudsman is inspected for contraband. The second Ad-

ministrative Rule, rule 791-6615(2), apparently supplements

rule 791.6603(4) by providing that in addition to mail from an

inmate’s designated attorney and from the corrections om-

budsman, prison officials shall treat as confidential mail com-

munications between inmates and courts, public officials, the

director of the Department of Corrections, and the correc-

tions commission. Finally, Policy Directive PD-BCF-63.03 pro-

vides in pertinent part that ‘‘[uJpon written request by a

prisoner to the institution’s mail room supervisor, mail which

is clearly designated as being from the prisoner’s designated

attorney, the courts, or from the Legislative Corrections Om-

budsman, shall be opened and inspected for contraband in the

prisoner’s presence.’’ This policy directive is similar to rule

791.6603(4), except that it clarifies that an inmate must send

his request for confidential treatment to the mailroom super-

visor for his institution and it encompasses mail from a court

as well as mail from an attorney and the corrections

ombudsman.

50a

As the policy directive indicates, inmates must renew their

request for confidential treatment of their legal mail each time

they are transferred to a new institution. Pis. exh. 404-A at

12; cf. T. at 3131-33. The testimony at trial also indicated that

each institution has a different method for handling privileged

legal mail. At the SPSM and the MBP, once an inmate has

notified the mailroom that he has an attorney, the mailroom

makes a notation that any mail the inmate receives that is clear-

ly marked as coming from an attorney (not necessarily the

inmate’s designated attorney), a court, or the corrections om-

budsman is to be treated as privileged mail. T at 530. The

MR employs a different system, however, under which mail

from a court or the corrections ombudsman is automatically

treated as privileged, but mail from an attorney is not treated

as privileged unless the inmate specifically designates the at-

torney. Jd. at 530-31; pls. exhs. 155 (grievance response) &

496 at 1.

The privileged mail policy, including the institutions differ-

ing interpretations of it, is not, moreover, adequately explained

to the inmates. The resident guidebooks for the various in-

stitutions do not contain a clear and correct explanation of the

policy. The guidebook for the SPSM-North Complex, pls. exh.

404-C, in fact contains no discussion of the policy, while the

guidebook for the MBP is misleading in that it does not inform

inmates they must take action to have their legal mail treated

as a privileged communication. During the orientation process

the inmates are given a general guidebook to read that does

explain the privileged mail policy, and the policy is explained to

them orally as well at that time. Pls. exh. 404-A at 12; 3-18-87

T at 24. An inmate is not allowed to keep this guidebook,

however, and upon his arrival at an institution he is given that

institution’s guidebook. Copies of the general guidebook are

not, moreover, readily available for inmates to read. Finally,

on occasion inmates who have requested privileged treatment

5la

for their legal mail find that their mail has been opened and

inspected outside of their presence, although the Court is con-

vinced that these openings are rarely, if ever, intentional.

Plaintiffs raise essentially three claims against defendants’

legal mail policy. First, they argue that the policy improperly

requires the inmates to invoke their right to be present when

their legal mail is opened and inspected for contraband. Second-

ly, they argue that the institutions differing interpretations and

applications of the privileged mail policy creates confusion

among the inmates. Finally, they argue that many inmates are

not aware of the policy. They request the Court to invalidate

the requirement that inmates must request privileged status

for their legal mail.

[2] The Court agrees that certain aspects of defendants’

legal mail policy, both as it is written and as it is implemented,

violate the inmates’ constitutional right to be present when

prison officials open their legal mail and inspect it for contra-

band. I do not find that defendant’s policy unconstitutionally

shifts to the inmates the burden of invoking this right. I agree

that defendants bear the burden of putting forth legitimate

reasons for their policy. The Supreme Court, though, already

has sanctioned the ‘‘policy’’ of inspecting legal mail for con-

traband. The issue here is defendants’ method of implement-

ing the inmates’ right to be present when that inspection oc-

curs, t.e., whether inmates should be required to opt-in to

the system or be considered ‘‘in’’ the system and allowed

to opt-out of it. The Court believes that this is the kind of

decision that courts generally should leave to the discretion

of prison officials. Plaintiffs have produced no evidence that

defendants’ decision to place the burden on the inmates by

itself infringes on their First or Sixth Amendment rights or

their right of access to the courts. Compare Guajardo v.

Estelle, 432 F.Supp. 1373, 1381 (S.C.Tex.1977) (court found

52a

no legitimate basis for a ‘‘requirement that inmates specially

request that inspection of incoming attorney mail take place

only in their presence’’) aff'd in part and rev'd in part, 580

F.2d 748 (5th Cir. 1978). The Court thus sees no basis for

invalidating that requirement, even though I agree with piain-

tiffs that the reasons for this policy are at best obscure. See

3-17-87 T at 60-61. Plaintiffs simply have not supported their

claim that the present system unduly increases the possibili-

ty that an inmate will erroneously be denied privileged treat-

ment of his legal mail. At best, plaintiffs have established that

isolated incidents of error occur in a system that hand’es

thousands of pieces of mail. See 3-23-87 T at 59.

If defendants are going to use such a policy, however, they

must implement it in a manner that will allow inmates a full

and informed opportunity to invoke their right to be present

when their legal mail is opened and inspected for contraband.

I find that the way in which defendants presently administer

their opt-in system does not achieve that goal. As the Court

already has discussed, the guidebooks given to the inmates

at the subject facility do not adequately explain the system.

The Court cannot, moreover, accept defendants’ contentions

that inmates fully understand the system. There is no evidence

that the general inmate guidebook, which does explain the

system, is routinely available to the inmates; I cannot place

much credence on the testimony of high level officials, such

as Director Brown, who testified they did not know of any

inmate confusion regarding the policy because such individuals

are not in daily contact with the inmates; and plaintiffs pro-

duced evidence of confusion among both inmates and staff.

See, e.g., T at 1526-27; pls. exh. 169 (staff misstating the policy

at MBP). Although the evidence on this point is not over-

whelming, the Court finds it sufficient to establish that defen-

dants’ method of implementing their opt-in system unduly in-

53a

fringes on the inmates right to be present when their legal

mail is opened and inspected for contraband.

[3] In particular, the Court finds that there are three un-

constitutional flaws in defendants’ system. First, each institu-

tion implements the policy differently, and the differences are

not adequately explained to the inmates. Indeed, even Direc-

tor Brown did not know there are differences between the

institutions. 3-18-87 T at 25. Second, an inmate must renew

his request whenever he is transferred to a new institution.

Given the number of transfers which the Court heard

testimony on at trial, it finds that this requirement unduly in-

fringes on the inmates’ right to be present when their legal

mail is opened and inspected. Finally, and most importantly,

the requirement that an inmate specifically designate an at-

torney, at least as it is implemented at the Reformatory, can

cause inmates unintentionally to waive this right. This situa-

tion can arise in two contexts. First, whenever an inmate is

appointed an attorney in a case there is a chance that defen-

dants will inspect the initial communication from that attorney

to the inmate for contraband outside of the inmate’s presence

because the inmate will have been unable to notify the

mailroom of the attorney’s existence and identity. Secondly,

in a class-action context, where one attorney or set of at-

torneys represent a number of inmates, the inmates similarly

may be unable to invoke their right to be present when their

legal mail is opened and inspected.

The Court accordingly will grant plaintiffs partial relief on

this issue, and will require defendants to submit a revised

system for allowing inmates to invoke their right to be pres-

ent when their clearly marked legal mail, t.e., mail from at-

torneys, the courts, and the corrections ombudsman, is opened

and inspected for contraband that will remedy these constitu-

tional defects. Defendants’ submission will be due sixty (60)

a

o4a

days from the date of this opinion. Plaintiffs will have thirty

(30) days to respond to the submission. The Court thereafter

will issue a final judgment on the issue.

To provide some guidance for defendants, the Court

observes that the revised system should contain the follow-

ing features. First, it should cover mail from an inmate’s at-

torney, from a court, and from the corrections ombudsman.

See Taylor, 532 F.2d at 475. Secondly, the policy should be

uniform throughout the subject institutions. Thirdly, an inmate

should be given the choice during the orientation process of

receiving privileged treatment for his clearly marked legal mail,

and if he exercises his right to be present when the mail is

inspected he should maintain that right whenever he is transfer-

red among the subject institutions unless and until he decides

to revoke his request. Fourthly, an inmate should not be re-

quired to designate a specific attorney, but rather only to state

whether he wants privileged treatment for his legal mail. The

requirement in rule 791.6603(4) that the mail be clearly iden-

tified as legal mail adequately informs prison officials that it

may require special handling. See Harrod v. Halford, 773 ¥ .2d

234 (8th Cir. 1985), cert. dented, ____ U.S. ___, 106 S.Ct.

2254, 90 L.Ed.2d 699 (1986). The Court believes that the

SPSM’s system for handling privileged mail, under which no

specific attorney is designated but an inmate rather is simply

marked as wanting privileged treatment for his legal mail, ade-

quately protects the inmates’constitutional rights in this

respect. See 3-23-87 T at 57-59 (testimony of Thomas

Phillips). Finally, the Court recognizes plaintiffs’ contention

that on occasion their legal mail is read. I find no evidence

that these incidents, if they occur at all, are widespread,

however, and thus will grant plaintiffs no relief on that issue.

55a

Il. Plaintiffs’ Winter Clothing Claim

Plaintiffs claim that defendants do not provide them with

clothing that is adequate for Michigan winters. First Amend-

ed Complaint 4 47. The Eighth Amendment, which applies to

the states through the Fourteenth Amendment, proscribes

the infliction of cruel and unusual punishment. The Supreme

Court has interpreted these words “‘ ‘in a flexible and dynamic

manner’ ’’, drawing upon objective criteria that reflect ‘‘ ‘the

evolving standards of decency that mark the progress of a

maturing society.’ ’’ Rhodes, 452 U.S. at 345-46, 101 S.Ct.

at 2398-99 (citations omitted). Under the Eighth Amendment,

a State may not incarcerate inmates under conditions that ‘‘in-

volve the wanton and unnecessary infliction of pain,’’ which

includes ‘‘inflictions of pain . . . that are ‘totally without

penological justification’ ’’, or under conditions that are

‘“grossly disproportionate to the severity of the crime war-

ranting imprisonment.’’ Jd. at 346-47, 101 S.Ct. at 2399 (cita-

tions omitted). In particular, conditions can be cruel and unusual

if, considered alone or in combination, they ‘‘deprive inmates

of the minimal civilized measure of life’s necessities.’’ Jd., at

347, 101 S.Ct. at 2399; Walker v. Mintzes, 771 F.2d 920 (6th

Cir. 1985).

[4] Several courts, including the Sixth Circuit, have stated

that adequate clothing is one of the necessities of life of which

State prison officials cannot deprive an inmate. E.g., Bellamy

v. Bradley, 729 F.2d 416, 419 (6th Cir.1984), cert. denied,

469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1985); Tous-

saint v. McCarthy, 597 F.Supp. 1388, 1410-11 (N.D.Cal.

1984); aff'd tn part, rev'd tn part, vacated in part, and remand-

ed, 801 F.2d 1080 (9th Cir. 1986). An inmate is not entitled

to the clothing of his choice, and prison officials do not violate

the Constitution simply because the clothing they provide may

not be aesthetically pleasing or may be illfitting. See Williams v.

56a

Duckworth, 598 F.Supp. 9, 16 (N.D.Ind.1983), aff'd mem.,

749 F.2d 34 (7th Cir.1984); Wolfish v. Leu, 573 F.2d 118,

132-23 (2d Cir.1978), rev’d and remanded on other grounds

sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979). States must, however, provide inmates

with clothing that is at least minimally adequate for the condi-

tions under which they are confined. Prison officials thus violate

the Constitution if they provide inmates with clothing that is

‘patently insufficient to protect [them] from the cold in the

winter months.’’ Balla v. Idaho State Board of Corrections,

595 F.Supp. 1558, 1575 (D.Idaho 1984). Inmates exposed to

harsh winter conditions without proper winter clothing may

indeed suffer ‘‘inflictions of pain’’ that are ‘‘totally without

penological justification,’’ in violation of the Eighth

Amendment.

Defendants’ clothing policy is set out in Policy Directive PD-

BCF-51.01, which provides in pertinent part that ‘‘[a]ll new-

ly committed prisoners’’ will receive an unlined jacket and that

‘‘[w]inter coats, blue corduroy headgear with earmuffs, and

long underwear, if requested will be issued to prisoners

employed outside in cold weather.’’ In accordance with the

policy, inmates are not provided gloves or boots unless they

are assigned to an outside work detail, in which event they

receive adequate winter clothing. E.g., T at 1539-40; T at

1337; T at 2587; see defs. exhs. 385 & 387 (boots and vests).

Inmates at the MR and SPSM in addition are not provided hats;

most inmates at the MBP do receive knitted hats and at least

some apparently receive long underwear as well. Pls exh. 397;

T at 1379; T at 1963. The Court has examined the jackets that

inmates generally receive during the orientation process. Pls.

exhs. 511A & 511B. Exhibit 511A is a lightweight, unlined

jacket that is totally inadequate for winter wear. Exhibit

511B is a similar jacket that has a medium-weight lining.

Although it is a better winter jacket than exhibit 511A because

57a

of the lining, exhibit 511B also is inadequate for winter wear.

The Court can take judicial notice of the severity of Michigan

winters, and firmly believes that both of these two jackets fail

to provide inmates with adequate protection from the cold and

snow. Inmates presented credible testimony about the jackets’

inadequacy for winter wear. E.g., T at 1963-64; T at 2023.

Although there was not a significant amount of testimony about

inmates becoming seriously ill due to exposure to the cold,

the Court does not believe that inmates are required to

establish that they have become seriously ill, or that some

of them have died, before being entitled to relief from con-

stitutional conditions of confinement. There was abundant

evidence, moreover, that inmates, except possibly those con-

fined in segregation units, have to go outside to go to meals,

to use the telephone, when they are transferred to other in-

stitutions, to go to jobs and other appointments, and for recrea-

tional periods.

Defendants did introduce evidence at trial that they are pro-

ducing and distributing a new coat, defs. exh. 315, that the

court considers to be adequate for winter wear. 3-18-87 T

at 119-26. Between March, 1985 and March, 1987 defend-

ants had manufactured and shipped 17,286 of the new coats.

Id., at 120. A substantial portion of those coats had been sent

to the subject facilities. Jd. at 120-21. Well over half of the

inmates at those facilities, however, did not have the new coat

during the 1986-1987 winter. T at 242-47; T at 248-58. The

Court observes here that it found both Mr. Hines and Mr.

Valeroso to be very credible witnesses. In addition, defend-

ants introduced no evidence that they have changed their policy

concerning hats, gloves, and boots. Thus, the preponderance

of the evidence demonstrates that defendants do not provide

all inmates who are unable to provide adequate winter clothing

on their own with an adequate winter coat, a hat, gloves and

boots. Even inmates who possess their own coats, moreover,

58a

must give them up when they are transferred, and risk never

seeing them again.

[5] The Court finds, based on the facts in the record, that

defendants are failing to provide inmates with adequate winter

clothing. As I stated previously, the unlined coat and the coat

with the light cotton lining are unsuitable for winter wear, and

to force inmates to venture outside in them constitutes the

infliction of substantial pain without an adequate penological

justification. Moreover, inmates often are forced to forego out-

door exercise due to the lack of adequate winter clothing.

Although exercise and other recreational pursuits are not

necessarily a core concern of the Eighth Amendment, under

certain circumstances a deprivation of recreational oppor-

tunities can violate the Constitution. See Walker 771 F.2d at

927-28. Inmates who lack adequate winter clothing, particularly

those confined at the MBP where the winters are long and

harsh, face a substantial risk of such a constitutional depriva-

tion. See T at 1964-66. Even if this were not the case,

however, the Court finds, as it stated previously, that defen-

dants are violating the Constitution by exposing inmates to

winter weather without providing them with adequate clothing.

The Court realizes that defendants now are manufacturing

an acceptable winter coat. As I already have found, however,

a majority of the inmates at the subject facilities do not have

it. Defendants’ official policy, moreover, pls. exh. 396, re-

quires only that inmates be given an unlined jacket. The Court

thus believes it properly can order defendants to provide ade-

quate winter coats, and that this issue is not moot and does

not fall under Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423,

88 L.Ed.2d 371 (1985), for two reasons. First, a majority of

the inmates at the subject facilities have not yet received the

new coat. Second, a voluntary cessation of unconstitutional

conduct does not preclude a court from granting injunctive

59a

relief where it is not convinced that the unconstitutional con-

duct will not reoccur. In this case, the Court is not so con-

vinced because defendants’ official policy on coats has not

changed. Finally, defendants produced no evidence that they

routinely provide inmates with gloves, hats, and boots. The

Court finds that hats and gloves or mittens are required winter

clothing at the subject facilities. The Court also finds, however,

that boots are not required if inmates are given adequate winter

socks and if walkways and outdoor exercise areas are kept

free of snow.

One final point the Court will discuss on this issue is defen-

dants’ claim that they are not responsible for any constitu-

tional deprivations that may be occurring. Due to the Eleventh

Amendment, and under the doctrine of Ex Parte Young, plain-

tiffs have sued defendants in both their official and individual

capacities. The Supreme Court recently clarified that ‘‘[a]s

long as the government entity receives notice and an oppor-

tunity to respond, an official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity.’’

Kentucky v. Graham, 473 U.S. 167, 105 S.Ct. 3099, 3105,

87 L.Ed.2d 114, 121 (1985). Given the Eleventh Amendment,

the only way a plaintiff can reach state action is to sue individual

officers of the State in their official capacities. See id. 473 U.S.

159, 165, 105 S.Ct. at 3106 n. 14, 87 L.Ed.2d at 122 n. 14

(‘‘implementation of state policy or custom may be reached

in federal court only because official-capacity actions for pro-

spective relief are not treated as actions against the Siate’’).

In an official-capacity action, however, ‘‘a governmental enti-

ty is liable under § 1983 only when the entity itself is a “mov-

ing force’ behind the deprivation.’’ Jd. 473 U.S. at 167, 105

S.Ct. at 3106, 87 L.Ed.2d at 122 (citation omitted). The Court

thus must apply the Monell standard, see Monell v. Depart-

ment of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978), in deciding whether defendants are

|

60a

responsible for any constitutional deprivations plaintiffs may

be suffering. See Clay v. Conlee, 815 F.2d 1164, 1170 (8th

Cir. 1987). This standard is similar to the standard for super-

visory liability that the parties have argued in their written

submissions. See Hays v. Jefferson County, 668 F.2d 869,

872-74 (6th Cir. 1982), cert. dented, 459 U.S. 833, 103 S.Ct.

75, 74 L.Ed.2d 73 (1982). The Court need not discuss this

issue further at this time, however, because defendants’ ac-

tions and inactions regarding winter clothing clearly represent

official policy, and it is pursuant to official policy that plaintiffs’

constitutional rights are being violated.

In accordance with the above discussion, the Court will grant

plaintiffs relief on this issue, and will enter a judgment, en-

joining defendants to provide inmates with constitutionally ade-

quate winter coats, hats, gloves, and, under specified cir-

cumstances, boots. Inmates are exempt from this order if they

are confined in areas where they do not have to go outside

during the winter. Defendants, however, must provide ade-

quate winter clothing to inmates during all institutional

transfers.

Ill. Plaintiffs’ Lack of Access to Toilets Claim

Plaintiffs’ third claim concerns only those inmates who’are

confined at the RCF and the RPC. Certain cells in these two

buildings do not have toilets and washbasins in them. Conse-

quently, inmates must use central lavatory facilities. This lack

of in-cell sanitary facilities has caused inmates on occasion to

have to urinate and to defecate in their cells in nonflushable

receptacles. Plaintiffs contend that this situation violates their

right under the Eighth Amendment not to be subject to con-

ditions of confinement that constitute cruel and unusual punish-

ment. Defendants respond that they have a system for releas-

ing inmates from their cells to use the central lavatory facilities

6la

that works well, with only occasional sporadic breakdowns,

and that no inmate is suffering from cruel and unusual condi-

tions of confinement simply because he does not have a toilet

and a washbasin in his cell.

As the Court discussed previously in connection with plain-

tiffs’ winter clothing claim, the Eighth Amendment prohibits

States from incarcerating inmates under conditions that, among

other things, involve the wanton and unnecessary infliction of

pain. This standard encompasses inflictions of pain that are

totally without penological justification and conditions of con-

finement that deprive inmates of the minimal civilized measures

of life’s necessities. Among the necessities of life the Eighth

Amendment protects is sanitary living conditions and personal

hygiene. Walker, 771 F.2d at 926 & 928. The amendment,

moreover, also reaches out to protect the basic dignity of man,

which is its primary underlying concept. Trop v. Dulles, 356

U.S. 86, 100, 78 S.Ct. 590, 597, 21 L.Ed.2d 630 (1958)

(plurality opinion); see Gregg v. Georgia, 428 U.S. 153, 173,

96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (plurality opi-

nion). It ensures that the State exercises its power to punish

‘“within the limits of civilized standards.’’ Trop, 356 U.S. at

100, 78 S.Ct. at 598. In the context before the Court, where

prison officials are not required to balance against the safety

and constitutional rights of inmates ‘‘competing institutional

concerns for the safety of prison staff and other inmates,”’

inmates need not prove ‘‘[a]n express intent to inflict un-

necessary pain.’’ Whitley v. Albers 475 U.S. 312, __, 106

S.Ct. 1078, 89 L.Ed.2d 251, 260-62 (1986). Although mere

‘‘inadvertence or error in good faith’’ will not constitute cruel

and unusual punishment, prison officials cannot unnecessarily

and wantonly inflict pain on inmates. Jd. 475 U.S. at 1084,

106 S.Ct. at ___, 89 L.Ed.2d at 260-61.

62a

When faced with a situation where inmates are confined in

cells without toilets and washbasins and are forced te depend

on corrections officials for access to those facilities, courts can

and have followed one of three different approaches. First,

a court can find that it is a per se violation of the Eighth Amend-

ment to confine an inmate in a situation where he may have

to defecate or urinate in a nonflushable toilet or other recep-

tacle, particularly when the inmate has no means of cleansing

himself after performing his bodily functions. Several courts

have followed this approach, finding that it violates the Eighth

Amendment to ‘‘lock[] a person, for any significant period of

time, in a cell lacking a flush toilet and a washbowl.”’ Flakes

v. Percy, 511 F.Supp. 1325, 1332 (W.D. Wisc. 1981); see also

LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir.1972)

(‘‘Causing a man to live, eat and perhaps sleep in close con-

fines with his own human waste is too debasing and degrading

to be permitted’’), cert. dented, 414 U.S. 878, 94 S.Ct. 49,

38 L.Ed.2d 123 (1973); Strachan v. Ashe, 548 F.Supp. 1193,

1202 (D.Mass.1982) (objecting to the use of a ‘‘soil pot’’);

Heitman v. Gabriel, 524 F.Supp. 622, 626 (W.D.Mo.1981)

(‘‘{nJo inmate shall be confined for more than one hour in any

locked cell which does not have working plumbing’’); Wolfish

v. Levi, 439 F.Supp. 114, 157 (S.D.N.Y.1977) (‘‘it falls to-

day below an acceptable level of humaneness to confine a

prisoner of any sex where he or she must solicit freedom to

use a toilet’), rev’d and remanded, 573 F.2d 118 (2d Cir.1978);

rev'd in part and remanded on other grounds sub nom., Bell

v. Wolfish, 411 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447

(1979); Negron v. Preiser, 382 F.Supp. 535, 539 n. 4 & 543

(S.D.N.Y.1974) (declining to find a constitutional violation

where ‘‘only those patients who are free to leave the cells

when they choose, or those patients who are so acutely

agitated that they overly threaten to use the toilet facilities

to harm themselves or others’’ will be confined in cells without

63a

toilets); cf., Groseclose v. Dutton, 609 F.Supp. 1432, 1437

(M.D.Tenn.1985) (noting potential problems where ‘‘meals

must be eaten in the cells, often near a malodorous cement

commode’’), appeal dismissed, 788 F.2d 356 (6th Cir.1986);

Blake v. Fair, 563 F.Supp. 836 (D.Mass.1983) (finding un-

constitutional conditions where, among other things, inmates

were confined in a cage area without a toilet or a sink).

A second approach would be to consider that a constitutional

violation occurs in a class action context only when the prison’s

system of releasing inmates to use toilet facilities is madequate,

and instances of inmates not being released to use the facilities

are sufficiently frequent that they face a substantial risk of being

forced to defecate or urinate in their cells and not being able

readily to dispose of their body wastes. Under this approach,

a court may grant injunctive relief only if it finds a pattern or

practice of noncompliance with a regular release program, or

the absence of such a program. See Osborn v. Manson, 359

F.Supp. 1107, 1112 (D.Conn. 1973) (holding that defendants

may confine inmates in cells without toilets if the inmates are

‘“‘permitted to use bathroom facilities at reasonable intervals

and . . . permitted to exercise outside their cells for one hour

per day’’); cf. Dimarzo v. Cahill, 575 F.2d 15 (1st Cir.1978)

(upholding district court order that did not require defendants

to install toilets in cells but only to install them ‘‘at the site

of existing water and sewer lines’’), cert. denied, 439 U.S.

927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1979). Prison officials do

not violate the Constitution, this approach holds, merely

because they confine inmates in cells without toilets and in-

mates occasionally are forced to defecate or urinate in their

cells without the benefit of a flushable toilet and a washbasin.

A final approach would be to hold that prison officials violate

the Constitution only if the conditions of confinement pose a

serious risk of harm to the inmates’ health. Under this ap-

64a

proach, even a pattern or practice of inmates not being released

to use the bathroom facilities, and thus being forced to defecate

or urinate in their cells, would not violate the Constitution if

it did not pose a serious risk of harm to the inmates’ physical

health. See Miles v. Bell, 621 F.Supp. 51, 61 (D.Conn.1985)

(finding that forcing dormitory inmates to wait to use the

bathroom does not cause ‘‘significant adverse health effects’’;

the court contrasted the situation, however, with one where

inmates may experience ‘‘serious problems of toilets that [do]

not flush, leaking toilets, wet floor and water shutdowns’’);

cf. Shrader v. White, 761 F.2d 975, 986 (4th Cir.1985) (find-

ing food service conditions adequate where there was ‘‘no

evidence of outbreaks of food poisoning, diarrhea, or other

diseases which are indicative of unhealthy conditions in the

preparation or handling of food’’); Grubhs v. Bradley, 552

F.Supp. 1052, 1123 (M.D.Tenn.1982) (the Eighth Amend-

ment requires conditions that are ‘‘sanitary enough so that

inmates are not exposed to an unreasonable risk of disease’’);

Collins v. Haga, 373 F.Supp. 923, 926 (W.D.Va.1974)(the

court found sanitary conditions to be adequate, in part because

‘‘there is no indication that any inmate has become ill by reason

of the conditions’’).

[6] Having reviewed the case law and the parties’ written

submissions on this issue, the Court concludes that the- first

view properly interprets and implements the core values of

the Eighth Amendment. It is too late in the development of

our societal values to permit prison officials to confine inmates

in cells where they do not have free access to toilet facilities

and a washbasin. I fully agree with the Court of Appeals for

the Second Circuit that ‘‘[c]ausing a man to live, eat and

perhaps sleep in close confines with his own human waste is

too debasing and degrading to be permitted.’’ LaReau, 473

F.2d at 978; see also Bel v. Hall, 392 F.Supp. 274, 277

(D.Mass. 1975) (‘‘[djeprivation of elementary sanitary facilities

65a

automatically and without having disobeyed any of the institu-

tional rules is not only hazardous to health but connotes an

institutional disdain for the inmates which is bound to have

a cumulative effect and to produce in them feelings of depres-

sion and despair’’). Exposing an inmate to a situation where

he may be forced to defecate or urinate in his own cell without

the presence of proper toilet facilities or a washbasin violates

the basic human dignity the Eighth Amendment protects. See

Flakes, 511 F.Supp. at 1329-32.

[7] Even if I were to follow the second approach,

moreover, the evidence in ihis case, which I will discuss in

the following paragraphs, is more than adequate to support

a finding that defendants are violating the Eighth Amendment

rights of those inmates confined at the RCF who do not have

access, t.e., without staff assistance, to toilet facilities and

washbasins. Plaintiffs have established by more than a

preponderance of the evidence that defendants do not ade-

quately provide these inmates necessary access to toilet

facilities and a washbasin, and thus subject them to a substantial

risk of having to defecate or urinate in their room without the

benefit of a flushable toilet or a washbasin.

Finally, the Court must reject the third approach, which

defendants urge me to adopt. In this context, I believe that

requiring plaintiffs to establish that they face a substantial risk

of physical harm due to the conditions at the RCF does not

give proper weight or respect to the somewhat intangible value

of human dignity. The evidence does demonstrate, however,

that inmates who are forced to defecate and urinate in their

celis at the RCF are exposed to a health risk. See T at 743-47

& 758-60. The Court found Mr. Duel’s testimony on this point

to be specific and credible. Although Mr. Duel could not quan-

tify the health risk posed to the inmates, the Court finds that

a not insubstantial risk does exist, particularly given that in-

66a

mates are not always provided adequate facilities and materials

for cleaning their urinals, t.e., they often have to clean them

in the same sinks in which they brush their teeth and wash

up and often are given no cleansers to use. T at 1032 &

1055-56 (R&GC); T at 1059, 1414-15, 1806, & 1889 (Pro-

tective Custody); T at 1076 & 1093-94 (Administrative

Segregation); and T at 1734 (RPC).

To compensate for the lack of toilets and washbasins in cer-

tain cells at the RCF and the RPC, defendants attempt to main-

tain a policy of allowing inmates out of their cells to use the

toilet facilities. Since defendants’ policy tends to vary with each

housing group at the institutions, the Court will discuss it in

connection with a separate discussion of the status of each

group. Defendants also maintain a regular policy of cleaning

the hallways and other common areas at these facilities, and

of providing inmates with ample opportunities to clean their

own cells on a regular basis. The Court specifically finds that

the RCF and the RPC generally are clean facilities, that defen-

dants maintain clean hallways, and, with the exception of areas

where urine may be spilled on the floor, see pls. exh. 376a,

that the cells are clean. Defs. exhs. 373, 374, 378, 379, &

381. The issue in this context, however, is not necessarily

the general sanitary condition of defendants’ physical facilities,

but whether inmates are given adequate access to toilet

facilities. I will discuss this issue separately for each of the

four population groups that defendants house at the RCF and

the RPC.

The first population group the Court will discuss is the in-

mates confined in the Reception and Guidance Center, which

is located in 7-Building on the first and second floors. Sixty-

seven of the cells on the first floor and sixty-three of the cells

on the second floor of seven building do not contain toilets

or washbasins. Pls. exh. 27 at 13. Inmates are confined in this

67a

facility for an average period of two weeks while they are go-

ing through orientation and awaiting transfers to other institu-

tions. 4-24-87 T at 20. During that two-week period, they are

locked in their cells approximately eighteen hours per day and

are allowed out of their cells three times a day for meals and

once a day for recreation. Pls. exh. 388; T at 1353-54. They

are given a urinal on their arrival at the Reception Center and

are told to use it, and to attempt to attract the attention of

an officer if they have an emergency. T at 1033, 1054, & 1353.

At least two inmates were given a used urinal. T at 1414-15

& 1742. Several inmates testified that they were forced to

use the urinals, and on occasion even to defecate in their cells,

because they were unable to use the regular toilet facilities.

T at 1033 (urinate); T at 1054 (urinate); T at 2298 (urinate):

T at 1061 (urine in courtyard from inmates in 7-2 quarantine):

T at 2296-7 (defecate); T at 2298 (urinate). This testimony

was buttressed by testimony of urine and feces being thrown

into the courtyard by inmates confined in the Reception area

and the Protective Custody area. T at 1046 (feces and urine):

T at 1061-62 (feces and urine); T at 1068 (feces and urine):

T at 1078-79 (feces); T at 1417 (inmates in quarantine dump-

ing urinals); T at 1436-37 (feces and urine); T at 1707 (feces):

& T at 1885 (inmate dumped urinal out of window).

The Court does not find that inmates throw urine and feces

into the courtyard on a daily basis. I do find however, that it

occurs often enough to support a finding that defendants fail

to provide inmates in the Reception area with regular access

to bathroom facilities and that such inmates often are forced

to urinate and defecate in their cells. In this regard, I specifical-

ly find that Mr. Waterman’s trial testimony was not credible

and was insufficient to rebut plaintiffs’ evidence. It was not

credible because it contradicted his detailed deposition

testimony on this issue. Even if it were credible it was insuffi-

cient because Mr. Waterman did not deny at trial that inmates

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frequently throw urine and feces out the windows; he

merely stated that it was not a ‘‘daily’’ occurrence. 3-25-87

JT at 146.

Defendants in their post-trial submissions have pointed the

Court to nothing in the record demonstrating that they pro-

vide inmates confined at the Reception Center with regular

access to bathroom facilities. The logs they submitted in sup-

port of their claim that they provide inmates with such access

apparently concern only the protective custody and ad-

ministrative segregation units. See pls. exh. 362. As I will

discuss later in this opinion, moreover, even those logs do

not adequately support defendants’ position. In summary, the

preponderance of the evidence demonstrates that inmates con-

fined in the Reception area are expected to use their urinals,

do use their urinals in their cells, and on occasion even are

forced to defecate in their cells. The Court already has found,

moreover, that defendants do not always provide these in-

mates with adequate cleaning materials for their urinals.

The second population group housed in seven building is the

protective custody unit, which is housed on the third floor of

the building. Ninety-six of the cells on this floor do not have

toilets or washbasins. Protective custody inmates are locked

in their cells during the night, from approximately 10:00 or

11:00 p.m. to approximately 6:00 or 6:30 a.m. During the day

they generally are out of their cells on assignments or just

around the housing unit. Pls. exh. 27 at 14-15; see T at 1034.

As with the Reception Center inmates, inmates in protective

custody are provided with urinals and are told to use them.

3-23-87 T at 107; T at 1040; T at 1704. Several inmates

testified that they have had to urinate and to defecate in their

cells because they could not get out to use the toilet facilities.

T at 1040-44 (defecate and urinate); T at 1059-61 (defecate

and urinate); T at 1415-17 (defecate); T at 1430-31 (defecate);

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T at 1704-05 (defecate); & T at 1886-88 (defecate). This

testimony also was buttressed by testimony that inmates con-

fined in the protective custody units dump urine and feces out

of their windows.

Defendants established on their cross-examination of some

of the inmates that correctional officers frequently let inmates

out during the night to use the toilet facilities. T at 1708-09;

T at 1903. The bathroom logs defendants submitted, more-

over, also demonstrate that the correctional officers frequently

let inmates out of their cells during the night to use the

facilities. Such logs do not, and cannot, however, indicate the

number of times the correctional officers have ignored inmate

requests to use the toilet facilities. The Court finds that plain-

tiffs have established by a preponderance of the evidence that

inmates frequently are forced or required to urinate or to defec-

ate in their cells, and face a substantial risk of not being allowed

to use the toilet facilities when they need to do so. F inally,

as I already have found, defendants do not always supply these

inmates with adequate cleaning supplies for their urinals, and

on occasion have provided inmates with used urinals. T at

1058-59.

Defendants argue that the Court should not consider the

situation of the protective custody inmates because they are

phasing out that unit and are replacing those inmates with

general population inmates, who are given access to toilet

facilities. Warden Quarles testified at trial that defendants are

converting the protective custody unit to a general population

unit, and expect to finish that project by the summer. 4-24-87

T at 21-22. The Court has no evidence, however, that

this transition actually has occurred. [ agree with plaintiffs,

moreover, that even if the transition actually has occurred

defendants have failed to demonstrate that ‘“ ‘there is no

reasonable expectation . . . ’ that the alleged violation

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will recur.’’ County of Los Angeles v. Davis, 440 U.S. 625,

631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting

in part United States v. W.T. Grant Co., 345 U.S. 629, 633,

73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953)). Absent some kind

of assurance that defendants will only confine in these cells

inmates who will have free access to toilet facilities, without

staff assistance, the Court believes it properly can enjoin any

unconstitutional conditions that exist regarding the lack of

toilets in them.

The third population group housed in seven building is the

administrative segregation unit. These inmates are confined

in their cells most of the time, being allowed out only to use

the toilet facilities and for a daily recreation period of one hour.

Pls. exh. 29 at 17. There are approximately twenty inmates

confined in the segregation unit. Defs. exh. 313. Correctional

officers make regular bathroom runs four or five times a day,

during which time inmates are allowed out of their cells to use

the toilet facilities. Pls. exh. 369; Seg.Record dated 11-18-85.

In addition, correctional officers make rounds on the unit every

one-half hour, during which time inmates can request to be

allowed to use the toilet facilities. 4-24-87 T at 19; pls. exh.

27 at 15; pls. exh. 29 at 21.

These requests are not always granted, however, particular-

ly during the late night and early morning hours. Defendants’

green log book for the segregation unit indicates that inmates

are occasionally allowed out of their cells during the early morn-

ing hours to use the toilet facilities. Once again, however, the

logs do not reflect the times when an inmate is not allowed

out of his cell to use the facilities. See T at 1091-93; T at

1890-91: T at 1077. Plaintiffs’ evidence of administrative

segregation inmates being forced to defecate or urinate in their

cells is less convincing than their evidence on inmates con-

fined in protective custody and in the Reception Center.

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Instances of these inmates being forced to urinate or defecate

in their cells present significant constitutional concerns,

however, because they are locked in their cells most of the

time and must eat their meals in their cells. See pls. exh. 30

at 11; pls. exh. 29 at 14-15. They are not, moreover, always

allowed to wash themselves before mealtimes. T at 1094; T

at 1077. Under such circumstances, the Court finds that defen-

dants are violating the Eighth Amendment rights of the ad-

ministrative segregation inmates by confining them in cells

without toilets or washbasins.

As a concluding note on the administrative segregation in-

mates, the Court observes that the parties dispute whether

the current American Correctional Association standards for

Adult Correctional Institutions require defendants to give in-

mates in segregation units free access to toilet facilities. Defen-

dants argue that standard 2-4130 of the January 1986 supple-

ment indicates that prison officials are not required to pro-

vide inmates in segregation units with free access to toilet

facilities. Plaintiffs respond that the January 1986 revisions did

not affect standard 2-4135, which does require prison officials

to provide inmates in segregation units with free access to

toilet facilities. Plaintiffs attached standard 2-4135 to their post-

trial brief on this issue. The Court believes that plaintiffs prob-

ably have the better of this argument. I do not find the ACA

standards on this issue to be persuasive one way or the other,

however. This is one issue on which the Court finds expert

opinion to be helpful, but not persuasive. See Rhodes, 452 U.S.

at 348 n. 13, 101 S.Ct. at 2400 n. 13.

The final population group the Court will consider is the in-

mates confined in the Riverside Psychiatric Center, which is

in 11 building. Forty-eight of the rooms in the east wing of

this building do not have toilets or washbasins in them. Most

of the inmates confined in these rooms are not locked in their

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cells and are allowed free access to toilet facilities, except dur-

ing the relatively brief count times. 3-25-87 T at 148 & 159.

Some inmates, however, are in seclusion, during which time

they are not free to leave their cells to use the toilet facilities.

Id. at 151-52. Approximately one to three inmates may be

on seclusion at a time in the east wing of the building, although

the number could be as high as twelve. Jd. at 152-53 & 157.

Many of these inmates take psychotropic medications that in-

crease their thirst for liquids, and consequently also increase

the frequency of their urination. T at 3300-04.

To cope with this problem, defendants occasionally place

urinals in the seclusion cells. 3-25-87 T at 157. These inmates

also are offered a toilet break every two hours and are checked

every fifteen minutes, during which time they may request

to use the bathroom. Jd. at 152. It appears, however, that

nurses occasionally may delay allowing an inmate in seclusion

to use the bathroom if he or she believes the inmate is mere-

ly playing games. /d. at 159. In addition, there is evidence

that not more than two inmates are allowed out of their rooms

at any one time to use the bathroom facilities. See pls. exh.

368. Finally, there was some evidence that inmates confined

at the RPC in cells without toilets have urinated and defecated

in their cells. T at 1736-37 & 1740-41; T at 1897.

Defendants contend that even inmates in cells with toilets

at the RPC occasionally urinate and defecate in their cells, and

that ‘‘the problem in 11 building has more to do with the

medical problems of individual inmates, rather than the physical

plant.’’ They cite to Dr. Bort’s deposition testimony, intro-

duced by the plaintiffs, in support of their contention. The

Court has reviewed the admitted portions of Dr. Bort’s deposi-

tion and finds nothing in them indicating that inmates in cells

with toilets urinate and defecate on the floor of the cell. Dr.

Bort did testify at his deposition, however, that the State

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Department of Mental Health is opposed to placing toilets in

the cells at Riverside. Pls. exh. 4 at 11. Plaintiffs’ psychiatric

expert, Dr. Rundle, testified, moreover, that patients may

urinate and defecate on the floor even when they have direct

access to toilet facilities and that most mental health hospitals

have some seclusion rooms without toilets and sinks. T at

3314. Dr. Rundle did indicate he disagrees with defendants’

use of the seclusion rooms at Riverside and with the Depart-

ment of Mental Health’s rationale for not wanting toilets in

the cells. T at 3314-16.

In accordance with the above discussion, the Court con-

cludes that defendants are violating the Eighth Amendment

by confining inmates in cells without toilets or washbasins at

the RCF and not allowing such inmates free access to central

toilet facilities. The basis for the Court’s holding differs for

the various population groups confined at this facility. With

respect to the inmates confined at the Reception Center and

in protective custody, the preponderance of the evidence clear-

ly demonstrates that these inmates are not allowed adequate

access to the central toilet facilities, and often are required

to urinate or defecate in their rooms without the benefit of

a flushable toilet facility. Defendants, moreover, expect in-

mates to use the urinals they give them when they first enter

the facility. Under both the first and second of the three ap-

proaches to this issue it discussed at the beginning of this sec-

tion, the Court finds that defendants are violating the Eighth

Amendment rights of inmates confined in the Reception Center

and in protective custody. Simply put, it violates the basic digni-

ty of these inmates to require them to urinate and to defecate

into improper containers and to live in close proximity to their

body wastes. Defendants are using a medieval building in the

1980s.

The situation is a little different for the inmates in the ad-

ministrative segregation unit and the inmates in the Riverside

74a

Psychiatric Center. Defendants have established that inmates

in the administrative segregation unit generally are allowed

access to toilet facilities. The Court cannot, however, ignore

the significant risk, which plaintiffs have established exists,

that these inmates may be required to defecate or urinate in

their cells, particularly in the late night and early morning

hours. This risk is exacerbated by the lack of washbasins or

other cleaning materials in the cells and by the fact that these

inmates are forced to eat in their cells, often times without

the opportunity to clean up before the meal. The Court thus

finds that defendants’ treatment of the administrative segrega-

tion inmates at the RCF also violates the Eighth Amendment.

It violates the Eighth Amendment to lock an inmate, for any

significant period of time, in a cell without an operable toilet

and washbasin. Even though the administrative segregation

inmates are not forced to urinate or defecate in their cells as

frequently as the Reception Center and protective custody in-

mates are, the risk that they will have to do so exists and it

is defendants’ official policy of not having toilets or washbasins

in those cells which subject them to that risk.

[8] The Court declines to find an Eighth Amendment viola-

tion with respect to those inmates confined at the RPC. The

only Eighth Amendment problem in this unit concerns inmates

who are on seclusion status. Inmates who are not in seclu-

sion have regular access to toilet facilities, and I cannot ac-

cept plaintiffs’ argument that I should issue an order covering

all of the cells in eleven building simply because defendants

may at some time use them for other purposes. The evidence

produced at trial established that defendants currently limit

toilet access only for inmates in seclusion; there was little,

if any, evidence that this policy may change in the future. With

regard to the seclusion inmates, I cannot ignore Dr. Bort’s

testimony that the Department of Mental Health is opposed

to placing toilets in the cells and Dr. Rundle’s testimony that

a

75a

mental health hospitals have and employ seclusion rooms that

do not have toilets or washbasins. Dr. Rundle indicated that

defendants are not properly employing the seclusion rooms

at Riverside, but plaintiffs produced no other evidence on that

issue. I thus cannot find that it violates contemporary stand-

ards of decency for defendants to confine inmates at the RPC

in seclusion cells without toilets or washbasins.

The Court thus will enter an order granting plaintiffs partial

relief on this issue. Since it is defendants’ official policy to con-

fine inmates at the RCF in cells without toilets, there can be

no question as to their responsibility for the constitutional viola-

tions that are occurring. I am not unsympathetic, however,

to defendants’ need for these administrative segregation and

protective custody cells. I therefore will not, at this time, adopt

plaintiffs’ suggestion that I enjoin defendants from confining

any inmate, absent emergency conditions, in a cell without

an operative toilet and washbasin for more than forty minutes.

Rather, I will give defendants sixty (60) days from the date

of this opinion to produce a plan for remedying the deficien-

cies that exist at the RCF. Plaintiffs shall then have thirty (30)

days to comment on the plan. The Court thereafter will either

accept defendants’ plan, order defendants to produce a revised

plan, or impose its own plan on defendants.

IV. Plaintiffs’ Access to Court’s Claim

Plaintiffs’ fourth claim is that defendants are denying them

their constitutional right of access to the courts by failing to

satisfy their obligation to assist inmates ‘‘in the preparation

and filing of meaningful legal papers by providing’ them ‘‘with

adequate law libraries or adequate assistance from persons

rained in the law.’’ Bounds v. Smith, 430 U.S. 817, 828, 97

S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). Before discussing

the merits of plaintiffs’ claim, the Court will address two

preliminary matters.

76a

The first preliminary matter concerns the case of Walker

v. Johnson which was remanded, in part, by the Sixth Circuit

to the District Court for the Eastern District of Michigan in

1985. Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985). One

of the issues discussed by the Sixth Circuit, and remanded

to the District Court, was whether the Michigan prison system

provides inmates confined at the SPSM, the MR, and the MBP

with adequate access to the courts. The class of inmates in-

volved in the Walker proceeding apparently is the same class

of inmates that is involved in this proceeding. Unfortunately,

neither of the parties to this case informed the Court that the

Sixth Circuit had remanded the access to courts issue to Judge

Newblatt for further proceedings, or requested the Court to

stay any proceedings on that issue since it already was before

Judge Newblatt. Defendants did file a motion for partial

dismissal on September 25, 1985 that was based in part on

the Walker decision. They did not discuss the access to courts

issue in their motion and brief, however, and did not request

the Court to defer to the proceedings before Judge Newblatt.

The Court realized for the first time the nature of the issue

and the status of the proceedings before the Eastern District

as it was preparing this opinion.

It may be regrettable that there have been two federal court

proceedings involving the same issue and the same class of

inmates. Nevertheless, given the status of these proceedings,

I see no reason not to decide plaintiffs’ claim. It simply is too

late in the game for me not to decide the access to courts

issue. In addition, I note that Judge Newblatt issued his deci-

sion in 1982. I have no idea what evidence Judge Newblatt

had before him and have only his opinion as evidence of the

condition of Michigan’s law library system at that time. The

Court thus does not believe it is in any way precluded from

ruling on plaintiffs’ claim, except of course to the extent that

it must follow the Sixth Circuit’s rulings in Walker on this issue.

‘na

77a

The second preliminary matter is defendants’ April 23, 1987

request that I take judicial notice of state and federal court

records concerning lawsuits brought by three inmates who

testified on the access to courts issue. Defendants contend

that these records impeach part or all of the witnesses’

testimony and indicate that they provide inmates with ade-

quate access to the courts. Plaintiffs oppose defendants’ re-

quest. They argue, in essence, that the Court should not grant

the request because defendants waited until the last moment

to file it, and thus precluded them from presenting rebuttal

evidence, and because the Court had prevented them from

submitting rebuttal grievances on the ground that defendants

would not have an opportunity to explain or to rebut the

grievances.

Rule 201(d) of the Federal Rules of Evidence provides that

‘‘[a] court shall take judicial notice if requested by a party and

supplied with the necessary information.’’ Paragraph (e) of

the rule provides that a party is entitled to ‘‘an opportunity

to be heard as to the propriety of taking judicial notice and

the tenor of the matter noticed’’ while paragraph (f) states

that ‘‘[jJudicial notice may be taken at any stage of the pro-

ceeding.’’ As defendants argue, courts routinely take judicial

notice of court records. E.g. E.I. Du Pont de Nemours & Co.

v. Cullen, 791 F.2d 5, 7 (1st Cir.1986); Moore v. Estelle, 526

F.2d 690, 694 (Sth Cir.1976); cert. denied, 426 U.S. 953, 96

S.Ct. 3180, 49 L.Ed.2d 1192 (1977). Moreover, also as defen-

dants argue, the records they seek to introduce are relevant

to this proceeding. Plaintiffs do not contest the records’ ac-

curacy or, for the most part, their relevancy.

[9] Rule 201 and the cases defendants cite in their briefs

seemingly require the Court to take judicial notice of the court

records. I believe, however, that the rule is not as mandatory

as it appears to be, and under the peculiar circumstances of

78a

this case deny defendants’ request. I base my decision on three

grounds.

First, judicial notice is an alternative means of proof that

is subject, like all other offers of evidence, to rules 403 and

611(a). See Ohio Bell Telephone Co. v. Public Utilities Com-

mission, 301 U.S. 292, 301-02, 57 S.Ct. 724, 729, 81 L.Ed.

1093 (1937) (‘‘notice, even when taken, has no other effect

than to relieve one of the parties to a controversy of the burden

of resorting to the usual forms of evidence’’; ‘‘ ‘[iJt does not

mean that the opponent is prevented from disputing the mat-

ter by evidence if he believes it is disputable’ ’’) (citation omit-

ted); Colonial Leasing Co. v. Logistics Control Group Int'l,

762 F.2d 454, 461 (5th Cir. 1985) (‘‘it is clear that the court's

power to take judicial notice ‘at any stage’ may be circum-

scribed by other considerations’’). Secondly, defendants did

not give plaintiffs fair notice of their intent to request the Court

to take judicial notice of the court records. The relevant

witnesses testified in August, 1986 (August 13th (Kingon)

August 15th (Kemp-Bey), and August 25th (Cade)). Yet defen-

dants did not produce court records until April 23, 1987, only

five days (including two weekend days) before the end of trial,

thereby effectively denying plaintiffs any opportunity to pre-

sent the three inmates as rebuttal witnesses. Arguably plain-

tiffs were able in their June 9, 1987 reply brief to rebut any

inferences the Court could draw from the records. Normally,

the Court would accept such a written submission in lieu of

live rebuttal testimony. I decline to do so here, however,

because the credibility of the witnesses is important and defen-

dants are in effect offering the records in lieu of, or as a sup-

plement to, their cross-examination of the inmates.

Finally, defendants’ request simply strikes me as being un-

fair, and I believe that it would be inconsistent with my other

evidentiary rulings to grant it. I have tried to be fair to both

79a

parties in admitting evidence while remaining cognizant of the

fact that I must determine what conditions presently exist in

the subject institutions. In trying to achieve these goals, I have

excluded some evidence I arguably should have admitted and

have admitted some evidence I arguably should have exclud-

ed. In this instance, given defendants’ inexcusable delay in

requesting me to take judicial notice of the court records, I

deny their request. I note, however, that the records con-

cern only three of the inmates who testified on the access to

courts issue and that even without this testimony, plaintiffs

produced sufficient evidence to satisfy their burden of proof.

Turning now to the merits of the plaintiffs’ claim, this was

a difficult issue to decide. As I will discuss, plaintiffs’ proofs,

although adequate, were not overwhelming. In addition, the

published case law is in conflict, with courts enunciating in-

teresting, thoughtful, and sometimes widely varying views on

access to the courts. This also is an area in which this Court,

like most other federal district courts, has substantial personal

knowledge of the issues and of the difficulties inmates face

in presenting their concerns to a court. I have reviewed

numerous prisoner petitions, some of which were well-written

and well-researched, and others of which reflected a complete

lack of legal knowledge and of the ability to write coherent

sentences and paragraphs. Finally, this is an area in which the

Court, as one who uses legal resources and hears and decides

cases on a daily basis, has a special interest. Nevertheless,

the Court must decide plaintiffs’ claim in accordance with the

law and the evidence produced at trial. I will discuss my fac-

tual findings, the legal standards I must consider, and finally

my conclusions of law. Any legal conclusions I may make in

my factual discussion shall be considered part of my conclu-

sions of law.

80a

Defendants’ Law Library System

Defendants have chosen to meet their obligation to assist

inmates ‘‘in the preparation and filing of meaningful legal

papers’ primarily by providing them with law libraries. They

have contracted with Prison Legal Services of Michigan to pro-

vide some representation to inmates at the SPSM. Pls. exh.

108. Prison Legal Services cannot, however, represent in-

mates in civil rights actions against the Department of Cor-

rections or its employees; it has insufficient staff to meet the

demands of the inmates; and its services are available only

to inmates confined at the SPSM. See T at 505-06. At each

institution, therefore, defendants maintain a main law library

that most of the general population inmates can use. Inmates

in administrative segregation, punitive detention, and protec-

tive custody, and many minimum security inmates, do not,

however, have direct physical access to these main law

libraries. For these inmates, defendants attempt to satisfy their

legal obligation by providing them with access to **mini-law

libraries’’ and by allowing them to request books from the main

law library. Since defendants have chosen to provide inmates

with law libraries, I must evaluate their adequacy and must

determine whether they provide inmates with meaningful ac-

cess to the courts. Since each of the institutions has a different

library structure, I will discuss them separately. ;

First, I consider the facilities available at the State Prison

of Southern Michigan. Two complexes of this institution, the

north complex and the south complex, are involved in this

issue. Both complexes have their own law libraries that con-

tain the required minimum collection. See pls. exh. 115. Each

library, in addition, has access to the central complex law

library, which contains many materials that are not on the re-

quired list. 3-19-87 T at 118; see defs. exh. 258 & 278a.

Defendants inventory their holdings on a semi-annual basis

8la

and regularly order and receive updated materials and

replacements for materials that have been reported lost or

damaged. See defs. exhs. 257, 257a, 253, 252a, 251b, 251c

& 251d; pls. exh. 120 & 121; 3-19-87 T at 158-60; 3-23-87

T at 12-14. The inventories occasionally are disorganized and

imprecise in identifying missing volumes. See pls. exh. 121.

I find, however, that the north complex and south complex

law librarians generally keep their collections up-to-date and

in order. I also find, though, that there are certain materials

not required by official policy, see PD-BCF-61.01, and which

these libraries do not otherwise have in their collections, to

which the inmates should have direct access: (1) a complete

set of the Wright and Miller treatise on Federal Practice and

Procedure, which the Court itself regularly uses (the libraries

carry only volumes 1-3A of this treatise; although the central

complex library carries the complete treatise, given its value

to those pursuing federal court litigation, the north and south

complex libraries also should carry it); (2) Michigan civil jury

instructions (the law libraries carry only the criminal jury in-

structions); and (3) all of the local court rules for the state

and federal courts (it appears that only the north complex

library carries the federal local court rules).

The law libraries’ physical facilities are cramped, particularly

at the south complex, but adequate. See defs. exh. 327-28

& 331-34. The north complex law library is housed in the

academic school, along with the general library, and seats 18-22

inmates (which includes general library inmates). 3-23-87 T

at 7 & 24. The north complex has never turned any inmates

away because of space limitations. Jd. at 10. Books are

available in the library on a call-out basis; the inmate requests

a book from the inmate law clerk, who then retrieves it for

him. An inmate can request up to three books at a time. By

system-wide policy, each inmate is entitled to six hours of

library time per week, in two-hour segments, plus extra time if

82a

needed. In addition, the law libraries are supposed to be open

a minimum of 25 hours per week, with at least one-half of those

hours after 5:00 p.m. or on weekends. See pls. exh. 130; def.

exh. 256 & 274. The north and south complex law libraries

generally are open for the required number of hours, although

there are times when they are closed, particularly in the north

complex, due to staff absences. T at 950-51. The closures,

however, although regrettable and a situation defendants cer-

tainly should rectify, are noi sufficiently frequent to infringe

on the inmates’ right of access to the courts.

The south complex law library is housed in a trailer that can

accommodate about nine inmates at a time. Although the

available space is small, the librarian testified that he never

has had to turn anyone away because of lack of space, 3-19-87

T at 152, and the evidence in the record does not establish

that the small space is a significant problem. As with the north

complex library, books are available to inmates by request and

each inmate generally is limited to three books at a time. In-

mate access to both libraries generally is on a call-out basis,

pursuant to which an inmate submits a request to use the law

library, and then is placed on a call-out sheet by the librarian

or inmate law clerk and allowed to go to the library by the

correctional officers for his housing unit. See defs. exh. 256

& 274. In the south complex, some inmates have a detail to

the law library, pursuant to which they are allowed to go to

the library at a scheduled time on a regular basis. The Court

heard some evidence that inmates are not able to use the law

library because its hours conflict with academic or work

assignments, e.g., T at 2542-43 & T at 951; that inmates are

denied access to the law libraries; and that inmate law clerks,

particularly in the north complex, deny access to inmates they

do not like. These situations are not, however, sufficiently

frequent or egregious to infringe on the inmates’ right of ac-

cess to the courts although I certainly condemn them. The

83a

call-out system of library access is susceptible of, and occa-

sionally subject to, abuse by staff and inmate law clerks. The

evidence does not demonstrate, however, that it is being im-

properly implemented at the north and south complexes on

a class-wide basis.

In terms of staffing, both libraries are headed by civilian law

librarians. The south complex librarian has an associate’s

degree in library technology; the north complex librarian has

a bachelor’s degree, but no specialized training in librarian-

ship. Both librarians have attended a two-day state sponsored

workshop on legal research. They are not, however, allowed

to assist inmates in legal research, other than to offer advice

on where to look for guidance. See 3-19-87 T at 1661 3-23-87

T at 34 & 49; pls. exh. 142. I specfically find that the librarians

are not qualified or competent to perform legal research, or

even to offer inmates sound legal advice on where to research

their specific problems. In particular, I heard no evidence from

defendants indicating that their two-day legal research

workshop is adequate training for the librarians, and I seriously

doubt that it could be. The central complex librarian, who

directly supervises the north and south complex librarians,

does have a master’s degree in library science from the

University of Michigan and significant experience working in

law libraries. There was no evidence, however, that she pro-

vides advice on inmate requests for legal assistance.

In addition to the civilian staff, the l

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