# Appendix — Knop v. McGinnis

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1973%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 973

## Text

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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Knop, et al. v. Johnson, et al., No. G84-651,

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Knop, et al. v. Johnson, et al., No. G-84-651

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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.

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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 de

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1973%3A2. Public record. Not legal advice.