Full opinion text
MEMORANDUM OPINION BRUCE R. THOMPSON, District Judge. This is a prisoners’ civil rights action which involves many facets of prison administration and discipline of prisoners at the Nevada State Prison. It is a class action and all inmates of the Prison are members of the class. The action was initiated by a pro se complaint filed in forma pauperis on May 1, 1972. Thereafter, counsel were appointed to represent plaintiffs and the Court desires to express its deep appreciation to counsel and Mr. Charles Zeh in particular for the tremendous amount of work, investigation and research which went into the preparation, trial and briefs of the case. The trial was held in April 1974. Both the named plaintiffs, Robbie Craig and Charles Hayter, testified. Several experts, including psychiatrists and people knowledgeable in prison administration and reform, offered their informed opinions. During the course of the proceedings, there have been changes, not only in the administration of the Prison but in the staffing. Edwin Pogue has succeeded Carl Hocker as Warden. A competent physician in internal medicine, a dentist and a psychiatrist have been added to the staff. Other improvements have been made. But the obstacles to humane treatment which are inherent in the character of the physical plant have not changed. The Nevada State Prison is approximately" one hundred years old. The maximum security institution adjacent to Carson City, Nevada, was constructed of stone quarried on the site of the edifice by prisoners. Early in-the 1960’s, a medium security prison was constructed near Stewart, Nevada, a few miles south of Carson City. Also a women’s prison was constructed adjacent to the maximum security facility. The administration of the women’s prison is not involved in this action. The manager of the State Public Works Board testified that the 1973 Nevada Legislature initiated a program with the ultimate objective of abandoning the maximum security prison. An addition to the medium security facility was under construction at the time of trial. Further, plans were being formulated for construction of a new two hundred inmate prison, perhaps in Southern Nevada, and money was appropriated for construction of a thirty-two capacity security unit at the Nevada State Hospital in Reno to house psychotic patients deemed to be unmanageable or dangerous. It depends upon the will of subsequent Legislatures whether additional institutions shall be constructed and staffed to permit the abandonment of the maximum security prison. A considerable portion of the expert testimony concerned the need for prison reform. The obvious was emphasized that is, that our present system does not work. It neither deters the commission of crime nor reforms the offender. It serves only two ends — to punish the offender and to safeguard society from his criminal activities so long as he is confined. This, however, is a sociological problem within the jurisdiction of the Legislature and does not become a judicial problem unless the means and methods adopted for the care and treatment of persons convicted of crime offend constitutional safeguards. The system of confining convicts in penitentiaries is not itself unconstitutional. At the time of the trial, there were eight hundred fifty inmates in the Nevada State Prison. Half of these were in the maximum security prison, thirty-four in the women’s prison, and the remainder in the medium security facility. This action is not concerned with conditions at the medium security facility or in the administration of that facility except in one respect only, that is, the procedures resulting in the re-transfer of a prisoner from the medium security prison to the maximum security prison. The medium security prison has dormitory housing, high school and college level educational programs, vocational training, hobby crafts, work release programs (N.R.S. 209.483, et seq.), a gymnasium, playing fields and recreational directors. Initially, all convicts committed to the Nevada State Prison are received at the maximum security prison for orientation, screening and classification. At that institution, there are three general classes of confinement, (1) isolation or punitive segregation, in which ten inmates were confined at the time of trial; (2) maximum housing, which was then harboring about fifty prisoners; and (3) the general population (the yard). Approximately ten trustees in the general population live on the short line, a dormitory outside the main security area. There is also a psychiatric ward or unit which was housing about ten persons, not necessarily inmates. More of this later. Inmates in the general population are housed mostly in single cells which have bunks with mattresses. There are also three dormitories. There is a toilet and sink in each cell with cold running water. Two sheets, two blankets and a pillow case are supplied and three towels. One sheet is changed each week. Towels are exchangeable at will. Inmates may-shave and shower at will. The inmates eat in the dining hall, three meals a day. Each inmate has clean underclothes, socks, shoes blue denim pants, shirts and jacket. He may supply and wear his own shirt of a specified style. He is permitted to have personal possessions, such as cigarettes, cosmetic supplies, a record player, a television set, books and magazines. Opportunities for recreation in the yard are limited. There is no gymnasium. An inmate may engage in weight lifting, basketball, volley ball, badminton and soft ball. Hobby crafts consist mostly of leather work and art crafts. Employment opportunities for general population inmates include culinary work, maintenance work, the license plate factory, the book repair or bindery shop ■ and the plasma program. Good time credits against the sentence may be earned by work. N.R.S. 209.285. At the time of trial, the prison administration was planning an educational program for these inmates. The recent development of the Western Community College in Carson City has brought about the possibility of an expanded educational program. Maximum security confinement contrasts with the freedom of the yard. The inmate is locked up in a cell and remains there most of the time. He is fed three times a day in the cell. The morning and late afternoon meals are the standard menu, but the food is usually cold by the time it is delivered. Sandwiches are served in the late evening. The clothing is standard. An inmate may have a radio, record player, television set, books and magazines. There is no employment opportunity, vocational training or educational program, except individual study courses. There is an outside exercise yard adjacent to the maximum security cell block which is seldom used because of insufficient supervisory personnel. A maximum security inmate may use the bullpen, an inside exercise room, about twice a week for an hour or so. The bullpen is essentially an oversized cell in the cell block, devoid of furniture or exercise equipment except a wooden table. A “max” inmate may take one shower a week, but has running water in his cell and can shave at will. A sub-class of maximum housing prisoners are prisoners in institutional lockup or administrative segregation. These are prisoners who are classified to this form of confinement primarily for their own protection, perhaps because of anticipated homosexual assaults or because it is known that another prisoner is out to get him. The cells are typical of those provided for the general population, but movement is restricted. At the time of trial, there were forty inmates in institutional lockup. They have restricted employment opportunities in the book bindery or as a tier runner. Exercise is available only in the cell inasmuch as they cannot be released to the bullpen, maximum security outside exercise yard or the general yard to mingle with other prisoners. Formerly they were fed like maximum security prisoners, but since this action was commenced, they have been fed two meals a day in the dining hall under guard. The “hole” or punitive segregation is the most restrictive form of confinement. It is used as punishment for violations of prison rules. There are seventeen cells in the tier comprising the hole. The small cell'has two doors, an inner steel barred door and an outer solid steel door. The cell has no bunk but is provided with a solid steel plate with a thin mattress. There is no running water. The cell has an oriental toilet, that is, a hole in the floor. An outside guard operates the flusher. No smoking is permitted. Inmates may shower and shave once a week at stated times. No employment is permitted. An inmate has a Bible and the possibility of one law book at a time, but no other reading material and no radio, record player or television set. A prisoner in solitary could write one letter a week but could receive no personal correspondence except legal mail. They have no visitation privileges. Clothing consists solely of a pair of coveralls. One blanket is supplied. On occasion, an inmate has been thrown in the hole naked after having been teargassed. Some of these conditions have been somewhat ameliorated since this action was filed. Warden Pogue testified that he had ordered five new design security toilets to replace the oriental toilets as part of a phasing-out program. DUE PROCESS IN DISCIPLINE A pre-trial order was entered in this action on November 20, 1973, which outlines ■ in general the issues to be tried. The first aspect of the action concerns due process in the administration of discipline, Counts I, II and IV of the Complaint. The procedures in effect for the administration of discipline to prisoners at the time plaintiffs Craig and Hayter were confined in the hole did not satisfy the minimal requirements of due process. Since this action was tried, we have had assistance from supervening decisions by the Ninth Circuit Court of Appeals and the United States Supreme Court, particularly Clutchette v. Procunier, 497 F.2d 809 (9th Cir., April 25, 1974), Opinion on Rehearing, 1974, 510 F.2d 613; and Wolff, Warden, v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Also, since the action was commenced, there has been a voluntary modification of disciplinary procedures by defendants. No useful purpose will be served by detailing what has occurred. On October 30, 1972, the Attorney General of Nevada, representing defendants, filed a document entitled “Proposed Disciplinary Procedures.” In the pre-trial order (p. 2, lines 16-31), defendants stipulated that due process requires the following specific elements be added to the disciplinary procedures which they have already proposed and that the Court enter an order directing that they be followed: “(c) Defendants stipulate that due process requires the following specific elements be added to the disciplinary procedures which they have already proposed and that the Court enter an Order directing that they be followed: “1. That the decision reached in a disciplinary proceeding be based upon substantial evidence adduced solely at the hearing. “2. That there be a written decision setting forth the facts and the reasons for the decision indicating that the decision is predicated solely upon the record. “3. That a verbatim record of the proceedings be kept. “4. That Due Process requires a comprehensive set of rules with a relevant schedule of sanctions, setting forth major and minor breaches, and drafted with sufficient specificity to appraise all parties beforehand of what is a punishable offense. “5. That the procedural safeguards adhere irrespective of the term of confinement in isolation.” An issue remaining for decision is the right to counsel or counsel substitute. This issue is controlled by Clutchette and Wolff, supra. The aforesaid agreed-upon procedures must be supplemented by the following in order to conform with the Clutchette opinion: 1. If a minor infraction, as defined in the Proposed Disciplinary Procedures, is charged and the prisoner is to suffer a loss of privileges, (1) he must be given notice of intent to remove one or more stated privileges, (2) together with a statement of grounds for removal, (3) at a reasonable time before discipline is imposed, and (4) must be given an opportunity to respond before such discipline is imposed. 2. Whenever a prisoner requests and is denied the privilege of confrontation and cross-examination in a disciplinary proceeding in which a serious sanction can be imposed (excluding a proceeding for an infraction that is also a crime), the prison authorities must enter in the record of the proceeding and make available to the prisoner an explanation for the denial. 3. The prison authorities must make provision for a counsel substitute whenever a prisoner subjected to disciplinary proceedings is unable competently to handle his case without help. 4.. A prisoner must be afforded counsel (and not merely counsel-substitute) when he is required to appear before a prison disciplinary committee for violation of a prison rule which may also be punishable by state authorities. DENIAL OF STATUTORY GOOD TIME The forfeiture of statutory credits against the sentence for good behavior granted under N.R.S. 209.280 and 209.-285 is a serious penalty. Nevada law entrusts the forfeiture and restoration of such credits to the state board of parole commissioners: “209.290 Forfeiture and restoration of credits. “1. If any convict shall: “(a) Commit any assault upon his keeper or any foreman, officer, convict or person, or otherwise endanger life; or “(b) Be guilty of any flagrant disregard of the rules of the prison; or “(c) Commit any misdemeanor, gross misdemeanor or felony, he shall forfeit all deductions of time earned by him before the commission of such offense, or shall forfeit such part of such deductions as to the state board of parole commissioners may seem just. “2. If any convict commits a serious violation of any of the rules and regulations of the prison, he may forfeit all or part of such deductions, in the discretion of the state board of parole commissioners. “3. A forfeiture, however, shall be made only by the state board of parole commissioners after due proof of the offense and notice to the offender, and no forfeiture shall be imposed when a convict has violated a rule without violence or intent, of which the state board of parole commissioners shall be the sole judges. “4. The state board of parole commissioners shall have the power to restore credits forfeited for such reasons as to it may seem proper.” In implementation of the foregoing statute, proceedings for forfeiture of good time credits are initiated on complaint of the warden before the board of parole commissioners and a hearing is scheduled. Notice is given to the prisoner. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), teaches that if the objective of the action is release from custody or a shortening of the length of confinement, habeas corpus is the exclusive remedy and state remedies must be exhausted. Last year, in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, 1974, the Supreme Court explained that a civil rights action for damages may go forward simultaneously with a state action for restoration of the forfeited credits. The federal court in the civil rights action may determine the validity of the procedures followed for forfeiture of credits in the light of the requirements of due process, but the court cannot order the restoration of credits found to have been wrongfully forfeited. With respect to the requirements of due process, the Wolff Court said: “For the prison inmate, the depriviation of good time is not the same immediate disaster that the revocation of parole is for the parolee.” Hence, a lesser quality of due process is required. N.R.S. 209.-290 requires “due proof of the offense and notice to the offender.” This is the skeleton of adequate due process and implies complete- compliance with the requirements of Wolff, (1) advance written notice of the claimed violation; (2) a written statement by the parole board of the evidence relied on and reasons for the forfeiture of credits; (3) an opportunity to the offender to call witnesses and present documentary evidence in his defense; and (4) an opportunity to the inmate charged to seek the aid of a fellow inmate or assistance of an impartial staff member, if the inmate charged is illiterate or the issues of such complexity as to require assistance to collect and present evidence' for an adequate comprehension of the case. The fourth requirement, above, is dictated by Wolff in the special circumstances noted. At the Nevada State Prison, an application for forfeiture of good time credits is, and in the future will be, almost always preceded by a prison disciplinary proceeding which in the future will be conducted pursuant to the requirements of the first section of this opinion. The report of that proceeding will be presented to the board of parole commissioners by the warden. Such a report has, in the past, been relied upon by the parole board. The offender charged must, nevertheless, be given the rights before the board hereinabove delineated. The importance of this may be illustrated by the testimony of Chappell Hayes, a former prisoner. He was charged and sentenced to the hole for allegedly participating in an altercation or roisterous disturbance in the Library. At the time, according to him, he was taking an aptitude test from Mr. Solaneski (phonetic). At his disciplinary hearing he asked that Solaneski be called as a witness and was refused. After he left the hole and spent several months in maximum housing, he, at classification sessions, requested a report from Solaneski which was never forthcoming. Suppose the Warden had referred his case to the board of parole commissioners for forfeiture of credits. It is important that the board should recognize the need to call Solaneski as a witness in his behalf and not rely solely on the prison disciplinary record. With respect to the named plaintiffs, Craig and Hayter, there was no lack of minimal due process in the parole board proceedings which resulted in a forfeiture of all statutory good time credits. They requested counsel and the request was denied, but both are articulate and intelligent men and fully understood the proceedings. Appointment of counsel or counsel substitute was not required. Their statutory credits were forfeited after they had pleaded guilty and had been convicted in the state district court for attempted escape. DUE PROCESS IN CLASSIFICATION The Nevada statutes impose upon the Warden the duty of classifying and separating prisoners. “209.260 Classification and separation of prisoners; clothing regula-, tions. “1. The warden shall classify and separate the prisoners into three grades, as follows: “(a) In the first grade shall be included those appearing to be corrigible or less vicious than the others, and likely to observe the laws and discipline of the prison and maintain themselves by honest industry after their discharge. “(b) In the second grade shall be included those appearing to be incorrigible or more vicious, but so competent to work and so reasonably obedient to prison discipline as not to interfere seriously with the productiveness of their labor, or of the labor of those with whom they may be employed. “(c) In the third grades shall be included those who are incorrigible or so insubordinate as to interfere seriously with the discipline of the prison or with the productiveness of its labor. “2. The prison garb or dress of the prisoners as classified in compliance with subsection 1 shall be as follows : “(a) Prisoners comprising the first grade shall be dressed in an outer dress of one color throughout, the color to be selected by the board. “(b) Prisoners comprising the second and third grades shall be dressed in clothing of the regulation prison garb.” N.R.S. 209.260. “209.270 Warden to make regulations concerning classification and separation of prisoners. “1. The warden shall make and adopt rules for the separation and classification of prisoners for their promotion and reduction from one grade to another, and from time to time shall change and amend the same as circumstances may require. “2. In making such rules and regulations, the warden shall, as far as practicable, consistent with the discipline of the prison, adopt such rules as shall, in his judgment, be most conducive to the reformation of the convicts. “3. A printed copy of the rules and regulations shall, with the approval of the board, be furnished every officer and guard at the time he is appointed and sworn, and so much thereof as relates to the duties and obligations of the convicts shall be hung up in a conspicuous place in each cell and shop, and such rules shall, so far as practicable, be written or printed in a language known to the convict occupying the cell.” N.R.S. 209.270. The conditions of a prisoner’s confinement depend a great deal upon the classification process and classification, in the final analysis, is determined by the warden upon review of recommendations made by a classification committee. Responsive to N.R.S. 209.270(1), supra, the Warden has adopted regulations, “Custodial Classification Procedure,” Revised 3/2/72. Classification is defined as “the process whereby inmates are assigned various levels of custodial supervision and are programmed according to individual and institutional needs.” The regulations recognize that there is an internleshing of classification as such and disciplinary action. One section provides: “401.08 DISCIPLINARY CLASSIFICATION “The Disciplinary Committee shall have classification powers and may establish any degree of custodial supervision they feel is warranted. It shall be the responsibility of the Classification Clerk to transcribe that portion of the Disciplinary Committee meeting minutes which establishes the new level of custodial supervision, on the proper classification chrono format.” There are many kinds of classifications which it is not useful to detail here. They relate generally both to the places of confinement and to the privileges which a prisoner may enjoy. For example, a prisoner may be classed “Minimum A” and housed either in the Main Prison, General Population or the Medium Security Prison and be eligible for Off-Reservation Work Crew Assignments (Section 401.23). The point is that classification does not relate solely to the place of confinement. The evidence shows that the warden actively pursues his statutory authority with respect to the classification of prisoners and that the recommendations of a classification committee are by no means rubber-stamped. The evidence shows that a prisoner’s classification is reconsidered no less often than every ninety days. The hearings consist of personal interviews with the committee which are called without prior notice to the prisoner and are conducted informally. The prisoner’s case is reviewed and his progress under the program then in effect is reviewed. The purpose is to “determine if previously recommended programs have been fulfilled and to establish new goals.” Plaintiffs, on behalf of themselves and other inmates complain of these procedures as lacking in due process. The evidence shows that the warden’s classification decisions, for example, a decision to maintain a prisoner in maximum housing, are reached after consideration of all sorts of information, some of it hearsay, some suspicion, some inferences from presumed knowledge not documented in the prisoner’s file. The evidence, nevertheless, shows that the warden consistently makes a valiant and sincere effort to make a decision with respect to a prisoner’s classification which is responsive to the mandates of the statute. It is our conclusion that the classification process cannot be truly equated with disciplinary proceedings vis-avis the requirements of due process of law. The principal Ninth Circuit touchstone in this area is Allen v. Nelson, 354 F.Supp. 505 (N.D.Cal.1973), affirmed 1973, 484 F.2d 960. The Circuit Court adopted the opinion of the District Court. The Allen case is authority for the proposition that the conditions of confinement of a prisoner are an appropriate subject of a habeas corpus petition if his placement in the prison system is initiated or continued in violation of constitutional safeguards. The Allen case analyzed the problems of that petitioner primarily in terms of the cruel and unusual punishment safeguards of the Eighth Amendment but added, as an alternative ground, that the petitioner had been continued in segregated confinement for eighteen months without notice, hearing or an opportunity to refute the reasons for segregated confinement, all in violation of due process of law. With respect to the general process of classification, it is difficult to envision a procedure under normal due process requirements. If notice is to be given, notice of what — that a meeting will be held? If a decision is made retaining the inmate in his current status, what findings are to be recorded — that no change of program is warranted? The process is an amorphous one, resulting in a broad exercise of discretion and judgment. It is a rare case, indeed, which will lend itself to judicial review. And, unlike the procedures for administration of discipline, the classification process does not lend itself to the elucidation of specific due process requirements. Each case in this area is unique and must depend on its own special facts. Allen v. Nelson, supra, was such a case. The result was dictated by the facts, and the Court had a great deal of difficulty articulating violations of constitutional rights to correct an apparent injustice. In that case, the initial transfer to segregation from the general population was because the prisoner was suspected of complicity in the murder of a correctional officer. The charge was later dropped for lack of evidence, yet he was continued in segregation and, despite numerous reclassification hearings, was continued there for eighteen months, primarily because he was considered a management problem. The Court apparently reached the conclusion that the continuation of the prisoner in segregated confinement under these circumstances was a cognizable injustice and relied upon the Eighth and Fourteenth Amendments to devise a remedy. When another case of that sort arises and, as we have said, it will be a rare case, Allen v. Nelson, supra, may be relied upon as precedent. Plaintiffs Craig and Hayter do not pose such a case. On April 3, 1970, they were ringleaders in an attempted escape in which a group of inmates took over a cell house and held two guards as hostages. The prisoners had two automatic weapons and several bombs. One officer was shot and wounded. After twenty-nine days in punitive segregation, both Craig and Hayter remained in maximum housing for about two and one-half years. In the interim, they pleaded guilty to the attempted escape in District Court and the Parole Board revoked all their good time credits. In the circumstances we have summarized, it is not for the Court to substitute its judgment for that of the Warden and his advisory staff and committees with respect to when,, if ever, it would be safe to release a subject to the general population. Here there was no question about the misconduct, unlike the Allen case, where the Court believed the prison authorities were acting on the basis of unwarranted suspicion. INMATE TRANSFER TO OUT-OF-STATE FACILITIES The Nevada Legislature has adopted the Interstate Corrections Compact (N. R.S. § 215.020) and contracts have been entered into between Nevada and other States pursuant to the compact for the reception and treatment of Nevada prisoners in an institution in the receiving state, for instance, California. In the past, the interstate transfer of prisoners has been administered in accordance with the discretion of the warden and, on occasion, a prisoner has been bundled up and spirited away to an out-of-state institution without prior notice. Plaintiffs contend that due process applies to action taken in transferring a Nevada prisoner to an out-of-state institution. This issue has been mooted. On June 6, 1973, Warden Pogue promulgated regulations (Ex. 3 in evidence) which prescribe a procedure for out-of-state transfers, including notice and an opportunity to be heard, providing all the process due in this situation. See: Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974); Wheeler v. Procunier, 508 F.2d 888 (9th Cir. 1974); Gomes v. Travisono, 490 F. 2d 1209 (1st Cir. 1973). ACCESS TO JUDICIAL PROCESS The concept of a prisoner’s eonstitutional right to access to the courts is founded on the Due Process Clause. Here, again, the Supreme Court has spoken with considerable definitiveness. There are three major aspects to the problem, (1) communication with courts and attorneys; (2) legal assistance; and (3) access to legal reference materials. A prisoner’s right to communicate by mail with court officials and with attorneys cannot be curtailed or restricted, although the state is under no obligation to provide the means of communication, i. e., stamps. All legal mail must leave the prison unopened and uncensored. Any incoming legal mail may be opened in the presence of the prisoner for the detection of contraband, but cannot be read or censored by the prison officials. These principles we find to be established by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), a prisoner had been disciplined for giving legal assistance to other prisoners. The Supreme Court said: “Even in the absence of such alternatives, the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C.A. 9th Cir. 1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions). But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.” The Court noted alternatives to assistance from other prisoners which had been used in some States, i. e., regular service from paid public defenders, employment of senior law students to aid prisoners, and voluntary service from members of the state bar. None of these sources of help is available in Nevada on a regular basis. Nevada has no law school. Thus the Nevada State Prison must permit inmates to help one another under appropriate regulations governing security and non-disruption of normal prison management. This' Court is aware of no specific regulations at the Nevada State Prison governing legal assistance to prisoners. We know from experience that knowledgeable writ writers, notably Robert Peoples, James Mears and Robbie Craig, have assisted other inmates. And, judging from the flood of correspondence which this Court receives from prisoners, it cannot be surmised that the policy has been unduly restrictive. We note, however, that many letters commence with a phrase such as “I am a layman at law” and indicate that the writer doesn’t know what to do about a problem which he thinks he has. Johnson v. Avery, supra, observed : “In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing. E. g., Taylor v. Pegelow, 335 F.2d 147 (C.A. 4th Cir. 1964); United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (C.A.2d Cir. 1964). See 28 U.S.C. § 1915(d); R. Sokol, A Handbook of Federal Habeas Corpus 71-73 (1965).'” The quotation states the practice in this Court. Under these circumstances, we think the Nevada State Prison should anticipate by its regulations the Johnson v. Avery problem and should maintain a roster of inmate writ writers and notify incoming prisoners of their availability to render assistance. We realize, of course, that such assistance must be voluntary and that a prisoner cannot be compelled to give legal aid to another. It is also obvious that the pool of inmates with sufficient education or experience or intelligence to offer effective help may vary a great deal from time to time. But an effort along this line should be made. The third problem is that of legal reference materials. In Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L. Ed.2d 142 (1971), the Supreme Court affirmed the opinion of a three-judge district court in Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970). The law is that the state must provide a prisoner with reasonable access to adequate legal reference materials. The state’s interest in curtailing expense is not an excuse. Without such access, the prisoner’s constitutional right to appeal to the courts for redress of alleged wrongs is rendered meaningless, and only those financially capable of retaining private counsel will enter the courtroom door. The only printed regulations (unless something has been overlooked in the mass of material before the Court) is the following: “There shall be a suitable place in each institution where inmates, with the permission of the designated employee, may have access to such law books as are available to them. No law books shall be taken from such place by any inmate. Misuse of the law books may result in denial of permission.” Article 5, Section 2501, Nevada State Prison Rules and Regulations. There is a prison law library and a method of obtaining copies of additional legal references from the State Law Library in Carson City. The law library is supported from three sources — federal funds, state funds and the inmate welfare fund — although state support appears to have been slight. There is in evidence an inventory of the law library as of 1973. It is woefully inadequate as well as incomplete, that is, many volumes are missing from the sets that are maintained. The service through the very complete Nevada State Law Library in Carson City is helpful as a supplement, but is not a substitute for basic reference materials immediately at hand. The system has worked, in a way, as evidenced by the fifty and sixty page briefs received by this Court, but they must have been prepared after long delays and abrasive frustrations. Many of the books in the present library are useless as ready reference materials. An adequate reference library may be maintained at a relatively small expense. It should include, at a minimum, the decisions of the United States Supreme Court, the complete Federal Reporter System, the complete Pacific Reporter and Shepards Citators for these publications: also, the Nevada Revised Statutes, Nevada Digest and Modern Federal Practice Digest. In addition, there should be more than one set of a general reference work on criminal law, such as the Criminal Law Reporter. The foregoing is stated in an advisory way. It is suggested that the Board of Prisons obtain recommendations from a committee comprised, perhaps, of knowledgeable persons from the office of the Attorney General, the State Public Defender and others in order to constitute a useful and adequate reference library. REASONABLE AND ADEQUATE MEDICAL CARE • The parties have stipulated in the pre-trial order that inmates have a constitutional right to a healthful environment and to be provided with reasonable and adequate medical care. They post the questions: What is a healthful environment? What is reasonable and adequate medical care? With respect to the seventeen cells comprising “the hole” this subject of discussion will be deferred to the section on Cruel and Unusual Punishment. The balance of the maximum security prison is patently not the most healthful environment conceivable. It is rugged, in a sense, but not more so than many hunters, fishermen and hikers accept voluntarily. There is a shortage of recreational space and recreational facilities. But none of these deprivations adds up to a constitutionally impermissible unhealthy environment. The old buildings and cell blocks would, in the opinion of many, best be abandoned, and this seems to be in the mind of the Nevada Legislature and Governor. The lack of adequate medical care has, in the past, been a deplorable situation, but conditions have improved since this action was commenced. A full-time physician and a full-time dentist are now employed, as well as two registered nurses, a psychiatrist and a part-time pharmacist, to service the inmates of the- institutions near Carson City. Genuine complaints from inmates are given reasonably prompt attention. There is a prison pharmacy from which all kinds of drugs are dispensed on prescription. There is a prison hospital ward to which sick inmates are removed when the doctor so directs. In instances of emergency or necessity, prisoners are taken under guard to a local hospital for diagnostic or treatment procedures not available in the prison. These facilities and procedures do not support a conclusion of inadequate and unreasonable medical care and treatment. In Shields v. Kunkel, 442 F.2d 409 (9th Cir. 1971), the Court wrote: “Failure or refusal to provide medical care may violate the Fourteenth Amendment, but mistreatment does so only under exceptional circumstances that approach failure to provide care at all. Simple malpractice does not give rise to an action under section 1983. (Stiltner v. Rhay (9th Cir.) 371 F.2d 420, cert. denied (1967) 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346). The record in this case shows only a difference of opinion as to diagnosis and treatment, not a refusal to provide treatment. The defendant’s views may be wrong and might give rise to a malpractice claim under state law, but they cannot be said to be so outrageous as to amount to no treatment at all. A difference of opinion between patient and physician, without more, does not state a claim under section 1983. (Coppinger v. Townsend (10th Cir. 1968) 398 F. 2d 392.)” See also: Stiltner v. Rhay, 371 F.2d 420 (9th Cir. 1967). The record in this case does not support a general charge of inadequate medical care and facilities at the Prison. Individual complaints of mistreatment will have to be considered on an' individual basis under the standard quoted from Shields v. Kunkel, supra. Cf. Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973); Corby v. Conboy, 457 F.2d 251 (2nd Cir. 1972). INTRA-PRISON TRANSFERS One section of the pre-trial order states an issue with respect to transfers of the place of confinement within one institution or from one institution to another of the prison system. What are the due process requirements applicable in this circumstance? We refer, of course, to such things as the involuntary transfer of a prisoner from the medium security prison to the maximum security prison, or from the yard to the maximum housing cell block in the latter facility. Historically, prison officials have been inclined to treat such decisions as classification decisions, but the court in Allen v. Nelson, supra, cogently observed: “The difficulty is compounded when prison authorities seek to differentiate the justification for ‘punitive’ as contrasted with ‘administrative’ segregation. While prison administrators recognize a distinction, the result is often identical. Courts have realistically avoided falling into this semantic <trap.” As a consequence of more recent considerations of the problem, it is now clear that any involuntary change in a prisoner’s conditions of confinement which amount to a “substantial, significant deprivation of his liberty" must be preceded by a due process hearing of the sort hereinabove described for major disciplinary infractions under the heading “Due Process in Discipline.” Wheeler v. Procunier, 508 F.2d 888 (9th Cir., 1974); Clutchette v. Procunier, 510 F.2d 613 (9th Cir., 1974). Transfers such as those we have noted above fall into this class. We recognize, nevertheless, that such a transfer may be deemed advisable for other reasons than a major infraction of disciplinary rules. But, because the result is the same, a prisoner must be given a statement of the reasons and an opportunity to refute them before the transfer is made (except in emergencies). FIRST AMENDMENT RIGHTS The rights of prisoners under the First Amendment of the United States Constitution relate primarily to regulations governing correspondence, visits and reading material. The 1971 Rules and Regulations of the Nevada State Prison include the following: “2301 — POLICY REGARDING MAIL: “It is considered essential to eventual resocialization of prison inmates that they maintain contact with their families and desirable friends by use of the mail privilege. Therefore, inmates are encouraged to make use of the mail privilege. “2303 — MAIL PRIVILEGES: “The sending and receiving of mail is a privilege — NOT A RIGHT! Any violation of the rules regarding the mail privilege by either the inmate or his correspondent may cause suspension of mail privileges. “USE OF THE MAIL PRIVILEGE: “The warden shall establish regulations governing inmate correspondence. Such regulations shall not be inconsistant [sic] or in conflict with the following provisions: “1. All correspondence, packages and personal property, sent or received by an inmate, may be inspected and censored. (No inmate shall be permitted to send or receive a package or communication of any nature until he has signed the required form consenting to the opening of same and examination of the contents.) This shall not preclude correspondence between an Attorney-of-Record and his client. “2. No C.O.D. mail or C.O.D. articles of any kind will be accepted for an inmate. “3. The system to provide for the payment of postage shall include adequate safeguards against the misuse of stamps and stamped envelopes. At no time will an inmate be permitted to have in his possession more than the number of stamped envelopes and postal cards prescribed by the institutional regulations. “4. Any inmate who has less than one dollar in his current account may be supplied with a stamped envelope and/or postage for one letter each calendar week. “5. Inmates shall be limited to the standing reasonable number of letters each week as determined by the institutional regulations. “6. No articles or merchandise of any kind may be received by inmates unless specifically approved by the institutional regulations. “7. Inmates may not send or receive letters that pertain to criminal activities ; nor lewd, obscene, defamatory, contraband materials, or any other material inappropriate to their rehabilitation. “8. Persons shall not be permitted to correspond with more than one inmate unless it is established that the correspondent is an immediate relative of the inmate concerned. Any exception must be approved by' the Warden or his delegate. “9. Inmates may not send registered or certified mail or any communication or article requiring a return receipt without the permission of the Warden or his delegate. Nothing in these rules shall deprive an inmate of correspondence with his or her attorney or with Courts having jurisdiction over matters of legitimate concern to him or her. “10. Funds from individual donors may be sent to inmates only by money orders or certified checks which indicate the name and relationship to the inmate to whom the money is sent. “11. Newspapers and periodicals on the approved list of each institution may be subscribed to by inmates through the established channels and must come directly from the publisher. “12. Except with the permission of the Warden or his delegate inmates shall not correspond with other inmates or ex-inmates of any correctional institution. The Warden or his delegate shall ascertain if correspondents are on probation or parole; if so, they must have permission of their supervisor to correspond. “2304 — APPROVAL OF CORRESPONDENCE LIST: “Except by permission of the Warden, inmates shall be permitted to correspond only with those persons who are on their mailing or approved correspondence list. Such list shall include only members of the inmates family and friends who might contribute to the inmates welfare. A married couple living in the same household may be considered as one. Applications to correspondents, giving the full name, relationship, residence address and mailing address of the proposed correspondent must be submitted on the prescribed form. Before approving the inmates correspondence list the Warden, or his designated representative, shall: “1. Notify the person named thereon that the inmate has requested permission to correspond with them and ask them if they so desire to engage in such correspondence. “2. Furnish all correspondents with a copy of the rules and regulations governing correspondence and a notice that all violations may result in the removal of their names from the approved correspondence list. “3. Conduct such investigations as are necessary to verify the relationship claimed by the inmate and to establish that valid reason exists for permitting such correspondence. “4. Permit inmates to write to a former and prospective employers and to others on matters of leti tímate [sic] business when approved. “5. Set age limits below which no person, except members of his immediate family, may correspond with an inmate, and set other regulations that protect the interest of both the inmate and the correspondent. “2305 — CENSORING: “The Warden may provide for censoring of inmate correspondence and the inspection of all inmate packages by properly qualified employees. “2306 — CONFIDENTIAL LETTERS: “Any inmate may address a sealed letter to: the Governor of Nevada, the Warden of the State Prison, Secretary of State of Nevada, Attorney General of Nevada, any Court having jurisdiction of the inmate’s case, the Secretary of the Board of Parole, the Secretary of the Board of Pardons, and the inmate’s Attorney-of-Record. Correspondence from said Attorneys shall be treated as privileged material. “2307 — PARTICIPATION IN PRIZE CONTESTS: “Inmates will not be permitted to participate in contests sponsered [sic] by radio and T.V. programs or in newspapers and other publications, when prizes are offered. “ARTICLE 6. VISITING “2601 — POLICY REGARDING VISITS: “Visits by family members, desirable friends, business associates and former or prospective employers, contribute to the morale and treatment of inmates. The Nevada State Prison encourages such wholesome visits and provides the means, compatible with security, for such visits. “2602 — VISITS AND PRIVILEGES: “Receiving visits is a privilege — NOT A RIGHT!, and is subject to restriction or forfeiture. “2603 — VISITS TO INMATES: “The Warden shall establish visiting regulations, not inconsistent or in conflict with the following: “1. A suitable place within the institution shall be provided for inmate’s visits. Except by permission of the Warden, no inmate shall be visited elsewhere. “2. Any inmate that does not wish to see a visitor shall be requested to refuse such visit in writing and in any case a notation shall be made in the record of such refusal. “3. A schedule of hours and days on which visits may be held shall be posted. “4. No money, writing, or merchandise of any sort may be given or received by inmates or visitors, except in accordance with approved institutional regulations or with permission of the Warden. “5. Visitors will not be permitted to visit more than one inmate in the institution unless the visitor is a member of the immediate family of the inmates concerned. “2604 — APPROVAL OF VISITING LIST: “Only those persons named on the visiting list can be permitted to visit an inmate, except by the permission of the institutional head. Such lists shall include only members of the inmate’s family and friends who might contribute to the inmate’s welfare. A married couple living in the same household may be considered as one. Applications to receive visits giving the full name, relationship, residence address, and mailing address of the proposed visitor must be submitted on the prescribed form. Before such list is approved the institutional head shall: “1. Inform the person named thereon that the inmate has requested permission to receive visits from them, ask them if they want to make such visits. “2. Give copies of the institution regulations concerning visits and notice that any violations may result in cancellation of the visiting privileges. “3. Indicate the age limits below which no person, other than members of the immediate family, may visit an inmate, and such other regulations as should protect the interest of both the visitor and the inmate. “4. Conduct such investigations as are needed to verify the relationship claim between the visitor and the inmate, and establish that good reason exists for permitting such visits. “2605 — NARCOTICS: “Any person having been involved and/or convicted of any type of narcotics offense, will not be permitted to visit without permission of the Warden. “2606 — RECEPTION OF NEW VISITORS PENDING APPROVAL: “Qualified employees shall interview all persons not previously approved who request visits to inmates. As requested visits conform to other requirements of the institution, they may be approved for the one visit pending investigation and approval for subsequent visits. “2607 — SUPERVISION OF VISITS: “All visits shall be subject to the following requirements: “1. An employee of the institution shall be present at all times and shall carefully supervise such visits. Exception: The employee shall not be within hearing of an Attorney and his client. “2. He shall maintain good order and in the event of an inmate or visitor creating a disturbance or becomming [sic] unduly emotional, or for other good or sufficient reasons, he may stop the visit and remove the participants from the visiting area. “3. Visitors shall be dressed in such a manner as to be acceptable in a public place. “4. Persons who obviously have been drinking intoxicating beverages or using illegal drugs will not be permitted on the grounds of the institution. “2608 — PRECAUTIONARY MEASURES: “The Warden shall provide that all reasonable precautions be taken to make certain that no visitor carries any weapon or other contraband onto the prison grounds. Whenever the head of the institution or his designee deems it necessary he may request the searching of and/or the finger printing of any person who enters the institutional grounds. Refusal to comply with the above may result in the cancellation of the visiting privileges. “2609 — VISITS BY FORMER INMATES : “Visits to the Nevada State Prison or lands adjacent to them by ex-inmates of this or any other State are prohibited unless the visitor has permission from the Warden. If the visitor is on parole or probation, permission will not be given unless such visits have been previously approved by their supervisors.” With respect to reading materials, there is a rule against the possession of “lewd or obscene writing or pictures or any other indecent materials” (Sec. 1206; and under Rule 2303(11), supra, newspapers and periodicals must be on an approved list. The publications available in the prison library have presumably been screened. Here, again, the 1971 rules and regulations do not accurately portray the present prison policies in these areas and it is difficult to determine from the evidence exactly what has transpired. With respect to correspondence, the Nevada rules are quite similar to those promulgated in California which were-held unconstitutional in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (April 29, 1974). In Martinez, as a preface to the ultimate holding, the Court had this to say: “Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning,. and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill-equipped to deal with the increasingly urgent problems of prison administration and. reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.” Martinez went on to hold that prison regulations of this type restricting correspondence in instances where an identifiable governmental interest such as “the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners” is not demonstrably affected cannot stand. The decision also approved the requirement that if mail is censored, there must be procedural safeguards. Subsequent First Amendment decisions in the context of prison administration have served to clarify the Martinez guidelines. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The guidelines established by these cases are specific and understandable. The Prison Board may easily approve new regulations which are not unconstitutionally vague and which do not infringe rights under the First Amendment. We may observe in passing that the evidence adduced at trial showed a propensity of the prison officials to exercise censorship on the basis of their own personal prejudices and predilections. This can happen only because of the vagueness and generality of existing regulations. It is apparently a prevalent practice which was alluded to unflatteringly in the Martinez opinion. With respect to visitation privileges, we think it may fairly be said that the Pell and Saxbe decisions, supra, give the states a broader discretion reasonably to control visits between prisoners and non-prisoners in promotion of the governmental interests in prison security and in prisoner rehabilitation. So long, as there are reasonable alternative means of communication, a prisoner has no First Amendment right to associate with whomever he sees fit. Pell v. Procunier, supra. There is not much in the Nevada Prison Rules about reading material. As we have noted, possession of lewd, obscene and indecent materials is prohibited, and Rule 2303(7) precludes the sending or reception through the mails of lewd, obscene or defamatory materials or “any other material inappropriate to their rehabilitation.” These standards are too vague and broad to be enforceable. They lead to the arbitrary confiscation of reading matter by the prison guards dictated by the personal prejudices and predilections of the confiscator. The evidence shows that this is what has occurred at the instant prison. If reading matter is to be censored or prohibited, here, as in the case of censored correspondence, there should be procedural safeguards such as those approved in the Martinez case, supra. One regulation, Section 1802, precludes pictures or decorations which feature nudity. This, our tour of the prison disclosed, is honored more in the breach than in the observance. CRUEL AND UNUSUAL PUNISHMENT The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” These restrictions on governmental excesses are made applicable to the states through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Plaintiffs, in addition to attacking specific aspects of Nevada penal treatment, argue, in substance, that the whole penal system is base, ineffective and inhuman and should be voided in response to the dictates of the Eighth Amendment. These sociological arguments are more properly addressed to the Legislature than to the Courts. There is, of course, much to be said to the point that our penal system as a whole is a drastic failure and serves little to accomplish the ultimate goals for which it was created. But these contentions, if accepted as true, do not bring it in conflict with the prohibitions of the Eighth Amendment. “When a prison regulation[s] [and] practice [s] offends a fundamental constitutional guarantee, the federal courts will discharge their duty to protect constitutional rights.” Procunier v. Martinez, supra. The difficulty lies in defining the impact or scope of the Eighth Amendment guarantee against cruel and unusual punishment. Much has been written on the subject, but the lessons are not particularly clear and there is little consensus. For instance, in the landmark ease of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which voided state death penalty statutes where the imposition of capital punishment was left to the unguided and uninformed discretion of a jury, the High Court entered a per curiam order which was supplemented by five separate concurring opinions, followed by four separate dissenting opinions. It is clear, nevertheless, that the Eighth Amendment does have meaning and must be given effect in an appropriate case. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Robinson v. California, 370 U. S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The most lucid exposition of the meaning of the Eighth Amendment is found in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), where Chief Justice Warren wrote for the majority of the Court: “The exact scope of the constitutional phrase ‘cruel and unusual’ has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amen