Full opinion text
ORDER DON J. YOUNG, District Judge. This action came on to be heard upon the first report of the Special Master, no objections thereto having been filed by any of the parties within the time heretofore fixed by the Court for the filing of same, and the Court being fully advised in the premises, it is ordered that the report is in all respects confirmed. Said report is attached hereto as Appendix B, incorporated herein by reference, and made a part hereof as fully for all intents and purposes as if set forth at length herein. The Court further finds and orders as follows: (1) It is clear that all of the defendants in this action, E. P. Perini, George Denton, and William Gilbert, are responsible for the state of noncompliance demonstrated by the report of the Special Master. In addition, certain subordinates of the Director of the Department of Rehabilitation and Correction and the Superintendent of Marion Correctional Institution, particularly the Associate Superintendent for Treatment Services at Marion Correctional Institution, are responsible for their failure to effectuate the terms of the Court’s order of September 12, 1972, attached hereto as Appendix A. It is hereby ordered that all of the named defendants, as well as their subordinates, proceed at once to effectuate full compliance with the Court’s order of September 12, 1972. (2) The progress of this case has shown beyond doubt that the defendants require assistance in implementing many of the terms of the Court’s order of September 12, 1972. It is hereby ordered that all steps taken by the defendants and their subordinates to effectuate full compliance with that order be supervised, coordinated and approved by the Special Master, acting for the Court. In this connection, the Special Master shall have the authority to state to the defendant, their subordinates, and all persons acting in concert with them or any of them the actions required to be taken by them or any of them to effectuate full compliance with the Court’s order of September 12, 1972, and to seek orders from the Court requiring any or all of said defendants, their subordinates, and persons acting in concert with them, or any of them, to show cause why they should not be punished as for contempt for failure to carry out such actions required. (3) Because of the disclosures of noncompliance contained in the Special Master’s report, it is hereby ordered that the Special Master shall continue to investigate the defendants’ state of compliance with the Court’s order of September 12, 1972, and shall make supplemental reports to the Court in the event that further or continuing instances of noncompliance are discovered. For this purpose, the Special Master shall have all of the authority granted to him by the Court’s order filed April 9, 1975. (4) The report of the Special Master has demonstrated that full compliance with certain paragraphs of the Court’s order of September 12, 1972, is complicated by the large number of inmates presently residing at Marion Correctional Institution. This is particularly true of those portions of the order which relate to job assignment, promotion, transfer, and removal. Any increase in the population of the institution will interfere further with the effectuation of these provisions of the Court’s order of September 12, 1972. It is hereby ordered that the present maximum capacity of 1,143 inmates in the stockade and 275 inmates in the honor dormitory be observed and that no inmates be admitted to Marion Correctional Institution in excess of those maximum numbers. IT IS SO ORDERED. APPENDIX A ORDER September 12, 1972 JOURNAL ENTRY AND ORDER DON J. YOUNG, District Judge. The plaintiff class (the inmates of the Marion Correctional Institution — hereinafter referred to as plaintiffs or inmates) having filed their class action complaint herein on November 7,1969, the Court having found same to be a proper class action, extensive discovery proceedings having taken place, and it appearing to the Court that the parties have waived hearing and Findings of Fact and Conclusions of Law on all issues covered by this Order, the following Order is entered without admission of any violation of the Constitutional rights, privileges or immunities of any of the members of the plaintiff class by defendant, and without a finding by the Court of whether the defendant has deprived any of the members of plaintiffs’ class of any such rights, privileges or immunities; NOW, THEREFORE: IT IS HEREBY ORDERED THAT defendant, his employees, agents, successors, assigns and all those in concert therewith (hereinafter collectively referred to as defendant) ARE ENJOINED FROM: 1. Engaging in any act or practice which has the purpose or the effect of discriminating against any member of the plaintiff class because of his race, color, or national origin, except insofar as specifically required by this Order. 2. Engaging in any form of racial harassment, intimidation or insult against any member of the plaintiff class. IT IS FURTHER ORDERED THAT defendant, his employees, agents, successors, assigns and all those in concert therewith (hereinafter collectively referred to as defendant) ARE ENJOINED TO: 1. Refrain from obstructing, censoring, reading, copying, or delaying first class mail between any of the members of plaintiffs’ class and any court of law, attorney-at-law, or public official; refrain from opening or inspecting any first class mail from any member of the plaintiff class addressed to any court of law, attorney-at-law, or public official; refrain from opening or inspecting any first class mail to any member of the plaintiff class from any court of law, attorney-at-law, or public official, except where conducted in the presence of the recipient for the limited purpose of detecting contraband. 2. Refrain from interfering with, or inhibiting by imposition of sanctions, threat of sanctions or harassment, efforts by members of the plaintiff class to assist one another in the preparation and conduct or defense of actions in any court of law involving the adjudication of the legal rights, privileges, or immunities of the assisted member of the plaintiff class. Defendant shall afford plaintiffs so desiring to work together a reasonable place to do so but may limit such activity to nonworking hours. 3. Provide to any inmate without charge, or on credit, paper, pencils, pens, notarial services and postage for use in the preparation and mailing of documents and correspondence pertaining to legal proceedings involving the adjudication of the rights, privileges or immunities of said inmate. 4. Permit plaintiffs without restriction to receive, possess and read newspapers, magazines, pamphlets, books and other printed matter from any source, with the exception of individual publications which either are obscene under the applicable constitutional criteria as established by the United States Supreme Court, or which constitute a clear and present danger to the security or safety of the Institution, such as publications providing instruction in picking locks, digging tunnels or making weapons. Publications of the excepted classes may be censored or prohibited only if pursuant to specific written regulations providing for: a) Specific criteria of non-acceptability; b) A specific decision making panel consisting of three or more persons not more than one of whom shall have primary responsibility in the area of custody; c) Prompt notice to the addressee of: 1) Identification of the material; 2) The interim prohibition of the material and reason therefor; 3) His right to a prompt hearing before the panel; d) A written decision including the reasons therefor not later than one week following the initial arrival at the Institution of the material in question; e) A right of the recipient inmate to appeal an adverse finding by the panel to the Department of Corrections, and to have said appeal decided not later than two weeks thereafter; f) The maintenance of records at the Institution of the proceedings described above for at least one year following the decision of the hearing panel, none of which to be placed, or referred to, in any inmate’s file. The effective date of this paragraph shall be stayed for sixty (60) days following entry of this Order to permit the promulgation of complying regulations should defendant desire to do so. 5. To the extent permitted by the terms and conditions governing funds that become available for library acquisitions from whatever source derived, such funds shall first be devoted to the purchase for the Institution Library for inmate use of each of the books (and at least three (3) copies of those with asterisks) and subscriptions to each of the periodicals listed on the Selected Bibliography entitled The Black Experience, attached hereto as Appendix A. 6. Refrain from imposing any disciplinary sanctions on, or making any adverse disciplinary record references regarding, any member of the plaintiff class except for the violation of written regulations sufficiently definite and specific and sufficiently distributed and/or posted to provide each member of the plaintiff class with fair notice of what conduct is prohibited and of the permissible range of sanctions for each such violation. The effective date of this paragraph shall be stayed for sixty (60) days following entry of this Order to permit defendant to adopt complying regulations. 7. Refrain from imposing solitary confinement, punitive segregation, or correctional cell incarceration on any member of the plaintiff class unless consistent with the following conditions: a) Such incarceration shall be for a fixed term not to exceed fifteen (15) consecutive days, nor shall any inmate be subjected to more than a total of thirty (30) days of such incarceration during any six month period; b) Normal Institution meals (excepting only desserts) shall be provided; c) Adequate clothing, bedding and toilet facilities shall be provided; d) Normal medical care shall be provided; e) At least one (1) book of the inmate’s selection subject to general Institution rules governing reading matter shall be provided; f) Inmates enrolled in an educational course shall be permitted to have their textbooks; g) Normal mail privileges shall be permitted; h) Clergymen, social services personnel and attorneys shall be permitted access to inmates so incarcerated; i) Adequate light for reading in the daytime and adequate darkness for sleeping at night shall be provided; j) Opportunity for exercise shall be provided not less than once every third day. 8. Within sixty (60) days of the entry of this Order, prepare and submit to this Court objective and reviewable written procedures for the nondiscriminatory assignment, promotion, transfer and removal of inmates to and from job assignments under the following terms and conditions: a) There must be precisely worded, job related substantive criteria for job assignment, transfer and removal; b) Any tests, the results of which will constitute criteria for job assignment must be job related; c) Job assignment, transfer and removal shall not be employed for punitive purposes, and shall not be related to discipline for rule infractions except insofar as such infractions are job related and manifest inability on the part of the violator to function in the job in question; d) There must be defined procedures for making job assignments, transfers and removals according to the specified substantive criteria, which procedures: 1) Shall provide for centralized responsibility for making such assignments; 2) Shall not allow for deference to the wishes of job supervisors or fellow inmates; 3) Shall not be dependent upon the self-initiative of inmates. 9. Within sixty (60) days of the entry of this Order, prepare and submit to this Court a plan for rectifying the present effects of past discrimination in job assignment with respect to all office jobs, the plumbing shop, the electric shop, the carpenter shop, the commissary, the hospital, the dental clinic, the cafeteria, the laundry, the trash run, porter jobs and the custodial school. 10. Within sixty (60) days of the entry of this Order prepare and submit to this Court in writing an affirmative action program reasonably calculated to insure the maintenance of a working atmosphere free of racial harassment, intimidation or insult, which program shall at a minimum include: a) The promulgation and adoption of written rules applicable to all staff prohibiting all forms of racial discrimination, harassment, intimidation and insult, coupled with sanctions for their violation ranging from written reprimand to discharge depending upon the severity and repetition of violation. b) A redefinition of all staff job descriptions to incorporate equal opportunity responsibility as an essential aspect of each such job, with the performance of such responsibility to be evaluated for purposes of retention, promotion and salary determinations; c) An orientation program for all present and incoming staff regarding the Institution’s commitment to the principle of Equal Opportunity, the fact that the staff members’ commitment to the principle is a criterion of hire, retention, promotion and assignment, and the obligations of the Institution and each staff member under the Federal Equal Employment Opportunity Act and recently expanded jurisdiction of the Equal Employment Opportunity Commission. d) A plan for the pre-hire administration to all candidates for staff positions of psychological examinations designed to disclose any propensity for racism, sadism or brutality, and to assist in selecting candidates most likely to have a helping, client-service orientation. e) A program for the in-service training of all staff members in human relations skills oriented toward the helping role of a correctional staff member and sensitivity to the nature, needs, aspirations and problems of the diverse racial, cultural, and ethnic groups which comprise the inmate population. f) A program for the orientation of present and incoming inmates in the Institution’s commitment to the principle of Equal Opportunity, the inmate’s responsibility to abide by that principle, the fact that relevant evaluations of him will include his performance in that regard, together with instruction calculated to cultivate understanding of, and sensitivity toward, the nature, needs, aspirations and problems of the diverse racial, cultural, and ethnic groups which comprise both the inmate and staff populations of the Institution. g) The designation of one or more staff members as Equal Opportunity Co-ordinator with primary job responsibility for implementing, coordinating, evaluating and reporting on the progress of all Institutional efforts to effectuate this Order. Notice shall be given to all staff and inmates of said designation and of said Co-ordinator’s responsibility and receptivity to suggestions and grievances. Said Equal Opportunity Co-ordinator and the Superintendent shall report to this Court at three-month intervals until further notice of the progress of the various programs designed to effectuate this Order. 11. Within sixty (60) days of the entry of this Order prepare and submit to this Court a plan for the elimination of the present effects of past assignments of inmates to beds on the basis of racial criteria. 12. Remove from the files of each of the sixty-seven (67) inmates listed in this Court’s Order of February 8,1972 all references, if any, to participation in any form in this or related litigation, to refrain from communicating in any other form the fact of such participation to the Parole Board, and to certify to the Court in writing within two (2) weeks of the entry of this Order that defendant is in compliance with this paragraph; and thereafter plaintiffs’ counsel or his designate shall have the right at any time during normal business hours to inspect any of said files.’ 13. To take the necessary steps to inform all staff members of the Marion Correctional Institution of the terms of this Order. 14. To file a written report with the Court within seventy-five (75) days of the entry of this Order setting forth the actions taken and progress made in effecting compliance with this Order. 15. To contemporaneously serve on plaintiffs’ counsel copies of all documents required by this Order to be filed with the Court. IT IS FURTHER ORDERED THAT this Court will retain continuing jurisdiction over this action, and the parties thereto for a sufficient length of time to make reasonably certain that the methods and practices provided herein have become permanently established. During such period of continuing jurisdiction, the Court will consider proposed modifications of this Order upon the application of any party. IT IS FURTHER ORDERED THAT the Consent Order entered in this action on February 8, 1972 is hereby abrogated. IT IS FURTHER ORDERED THAT defendant shall pay to plaintiffs’ counsel reimbursement for out-of-pocket expenses and reasonable attorney’s fees based upon services rendered in the handling of this action. In the event the parties are unable to agree upon the amount of payment under this paragraph, such issue shall be submitted to the Court for hearing and decision. IT IS FURTHER ORDERED THAT all other issues in this cause be, and the same are hereby, continued until the further order of the Court. APPENDIX B FIRST REPORT OF THE SPECIAL MASTER ON THE DEFENDANT’S STATE OF COMPLIANCE Submitted by Vincent M. Nathan, Special Master INTRODUCTION The report which follows contains the results of an investigation which began on December 2,1975, upon the appointment (as of the previous day) of the author as Special Master in the case of Taylor v. Perini. In the course of the investigation, the Special Master (and his Assistant in all but one instance) made eight trips to Marion to visit the institution. In the course of these visits, of one or two days duration, meetings were held with large numbers of staff, including both administrators and front line correctional officers. Much of one day was spent observing hearings held in Marion by members of the Adult Parole Authority. A large number of interviews with inmates were conducted. One trip was made to Columbus, Ohio, to meet with staff employed by the Department of Rehabilitation and Correction. The Special Master and his Assistant were accompanied by two members of the Department’s staff on a day long visit to Southern Ohio Correctional Facility at Lucasville, and the Superintendent of that Institution was both helpful and gracious on that occasion. - Late in December, 1975, the Special Master authorized the formation of an Inmate Liaison Committee, consisting of one inmate from each living area (lock) in the institution. This 20 man committee began to function in January. In the course of regular meetings between that Committee, the Special Master, and his Assistant information was gained concerning the problems, attitudes, and perspectives of inmates generally. During the entire course of this investigation, the Special Master has encountered a cooperative, friendly, and helpful attitude on the part of the staff of the Department of Rehabilitation and Correction, inmates, and the administration and staff of Marion Correctional Institution. Mr. Stephen Yost, the Department’s Administrative Assistant (Legal) provided liaison between the Special Master and the Department and was helpful in every way that he could be. Mr. John Canney was generous in his time, particularly with respect to discussion of development of a pre-hire testing technique for incoming staff at M.C.I. The Superintendent of Marion Correctional Institution, Mr. E. P. Perini, responded affirmatively to every request made by the Special Master. In addition to spending many hours of his own time explaining procedures and discussing problems, he obviously instructed his staff to provide a full measure of cooperation. Mr. W. J. Wheal-on, the Administrative Assistant to the Superintendent, provided liaison between the Special Master and the staff at Marion Correctional Institution, and his cooperation was outstanding in every respect. Over the course of the investigation, the Special Master asked for the submission of numerous documents and reports, frequently on a daily or weekly basis; all were provided through the efforts of the Superintendent and Mr. Whealon. Staff with whom the Special Master and his Assistant had contact during visits to Marion were uniformly courteous, helpful, and friendly. This was true not only of those persons whose administrative responsibilities were directly related to the Court’s order, and who were thus responsible for providing information to the Special Master, but also front line correctional officers who opened gates, conducted tours, gave directions and generally offered to be of help in any way they could be. While it cannot have been a pleasant experience to be under the pressure of an in-depth investigation of virtually every facet of the institution, administration and staff members were unfailingly courteous and helpful. Members of the Inmate Liaison Committee labored as well to produce the information contained in this report. Meetings were long and sometimes difficult. Committee members were charged with representing the more than 1300 inmates incarcerated at M.C.I., and they did their job well. This required concern on their part for the problems of other inmates and suppression of their own self interest to that larger concern. This was asking a lot from these men, and they performed admirably. Most important, members of the Committee were willing to acknowledge positive as well as negative aspects of the institution’s efforts to comply with the Court’s order. That in turn produced reliable information for inclusion in this report. The University of Toledo College of Law provided assistance in many forms. In addition to the provision of a special office for the conduct of the investigation and the writing of this report, secretarial services as well as other forms of financial support were given. Two secretaries labored mightily to produce the final copy of this report in one week’s time. Finally, it is literally true that the Special Master’s Assistant, Kenneth Cookson, who is a second year law Student, participated in this venture on the basis of full partnership. His contributions, both to the investigation itself and the preparation of this report, have been invaluable. The report which follows begins with an analysis of 13 mandatory paragraphs and ends with discussion of the two prohibitory paragraphs at the beginning of the Court’s order. This organization was utilized because many of the specific areas dealt with by the mandatory paragraphs relate more or less directly to the overall problem of racial discrimination, harassment, intimidation, and insult. Each mandatory paragraph is treated separately. After a short statement of the content of the paragraph, there is a brief description of the method of investigation employed by the Special Master. Where necessary, a statement of current practices at Marion Correctional Institution is included. This, in turn, is followed by a discussion of evidence relating to compliance. Because Administrative Regulations adopted by the Department of Rehabilitation and Correction deal with many of the practices and procedures to which the Court’s order addresses itself, these have been mentioned in connection with each paragraph of the order. Copies are included as appendices. Finally, each section of the report concludes with the findings of the Special Master with respect to each paragraph of the Court’s order. One cautionary note is in order with respect to the inclusion of the discussion of Departmental Administrative Regulations within the body of this report. Although some instances of noncompliance with provisions of the Court’s order constitute as well violations of certain Administrative Regulations, the mere existence of these Regulations should not be taken as indicating that noncompliance in such instances is limited to the Superintendent or staff of Marion Correctional Institution. To the contrary, in those cases in which the institution is found to be in a state of noncompliance with the Court’s order and with the relevant Administrative Regulation, there is no evidence that officials of the Department of Rehabilitation and Correction have taken action to compel compliance on the part of the Superintendent or his staff. In the case of the Administrative Regulations dealing with censorship of incoming printed materials and tapes, the Regulations themselves, as applied to Marion Correctional Institution, constitute noncompliance with mandatory Paragraph 4 of the Court’s order. What follows is a report on the state of compliance and noncompliance by the institution with the order issued by the court on September 12, 1972. Although much of what has been learned to date will be of assistance in developing plans of compliance for implementation, this report is almost totally devoid of such references. Upon the Court’s adoption of the findings of the Special Master contained herein, compliance plans can be developed quickly with respect to some areas of noncompliance and only with expenditure of great time and effort as to others. Those matters, however, are not the subject of this report. MANDATORY PARAGRAPHS PARAGRAPH 1 Paragraph 1 restrains the defendant from “obstructing, censoring, reading, copying, or delaying” first class legal mail. Inspection in the presence of the inmate/addressee for the limited purpose of detecting contraband is permitted. For the purpose of this investigation, the term “legal mail” is taken to include mail addressed to or received from any court of law, attorney-at-law, public service law office, law school legal clinic, and any office or official of the federal, state, or local government. TREATMENT OF LEGAL MAIL All first class mail is received in the “outside” mail room located on the second floor of the administrative wing of the institution. The mail room staff consists of one officer and two clerks. All pieces other than legal mail are opened by machine and inspected for contraband. These items are then sorted and packaged for delivery to the “inside” mail room, which is located on the first floor inside the crash gate which separates the administrative wing from the rest of the institution. From that point the mail is collected by correction officers for delivery to cell blocks and dormitories by means of a mail call. Legal mail, on the other hand, is separated in the outside mail room, and is delivered to the inside mail room without being opened. Passes are issued to inmates who call for their legal mail. Upon presentation of a pass, the legal item is opened in the presence of the inmate, inspected for contraband, and delivered to him. In order to monitor the effectiveness of the process just described, a method of investigation was developed to disclose the incidence of breakdown in the process currently employed by the institution. METHOD OF INVESTIGATION Beginning December 2, 1975, the Marion Correctional Institution (hereinafter M.C.I.) maintained a daily log indicating the incidence of improper treatment of legal mail received by the mail office. Information relating to each incident (name and number of addressee, name of individual who opened the piece in error, and the nature of notification of the inmate/addressee) was included. Beginning January 16,1976, all legal mail was ordered to be stamped “SPECIAL HANDLING” at the time of its receipt in the mail office. On that same date, the mail room was instructed to make a photocopy of all legal mail envelopes opened erroneously. On January 20, 1976, all correctional officers were directed to sign any envelope containing legal mail and presented by an inmate/addressee after having been delivered in regular mail call and thus opened outside the inmate’s presence. Finally, the members of the Inmate Liaison Committee were asked to collect all evidence of improper treatment of legal mail and to submit it to the Special Master. EVIDENCE RELATING TO COMPLIANCE Evidence relating to compliance prior to December 1, 1975, is virtually nonexistent. On September 22, 1975, the Administrative Assistant to the Superintendent issued a written reprimand to a member of the staff concerning improper treatment of legal mail. The memorandum stated in part: This will be a follow-up of our impromptu conversation regarding the above subject and of the requirements to adhere strictly to the guidelines presented by Judge Young’s court. The order of September 12, 1972, is specified, in that; all legal and official mail sent to an inmate, is to be opened in his presence and screened only for possible contraband and pornographic material. The legal mail log which begins on December 2, 1975, discloses five incidents of error in opening legal mail in the outside mail room. Of these, two involved envelopes which bore return addresses which did not identify the legal character of the letters. A third, received on February 14,1976, bore a return address from the State of Ohio, Industrial Commission of Ohio. The fourth example was a letter sent by the Special Master to an inmate at Chillicothe Correctional Institution. This letter was opened at Chillicothe and forwarded to the addressee, who in the meantime had been transferred to Marion. On February 19, 1976, a letter bearing a return address of the American Civil Liberties Union, Cleveland, Ohio, left the outside mail room unopened. By the time it reached the inmate/addressee in the course of a regular mail call, it had been opened by someone whose identity has not been discovered. The most likely possibility is that it was opened by a person in the inside mail room and added to the regular mail call delivery. Thus the record maintained by staff in the outside mail room discloses only one example of improper handling of incoming first class legal mail by that office. It indicates in addition a clear but unexplained infraction in the case of the letter from the American Civil Liberties Union. Evidence submitted by representatives of the Inmate Liaison Committee, however, presents a different story. Eight examples of clear-cut violations by the staff of the outside mail room were placed in the hands of the Special Master. Return addresses of the following senders were clearly indicated: Special Master .............. 2 letters Office of Personnel, Washington, D. C. . . 1 letter Legal Aid Society of Cincinnati ..... 2 letters University of Akron School of Law Appellate Review Office 2 letters Max Kravitz, Attorney at Law.......1 letter Each of these envelopes bears clear evidence of having been opened in the outside mail room and/or having been delivered at a regular mail call. It should be noted that none of these incidents appears on the legal mail log submitted by the staff of the outside mail room. Two examples of delay of incoming first class legal mail came to light in the course of this investigation. Two letters written by the Special Master to members of the Inmate Liaison Committee were postmarked in Toledo on February 3, 1976. These letters were delivered to inmates in the honor dormitory at MCI on February 10. Eighteen identical letters, addressed to inmates within the stockade itself and announcing a meeting of the Inmate Liaison Committee on February 7, were received by the inmates sometime between February 4 and 6. Because of this delay, the two honor dormitory residents were not aware of the impending meeting until passes were issued to them on February 7. Administrative Regulation 814 permits the opening and reading of incoming and outgoing mail under special circumstances. Prior permission must be obtained from the Director of the Department of Rehabilitation and Correction. See Appendix A, page 268 infra. Paragraph 7 of this regulation, authorizing censorship, does not exempt legal mail. The Administrator of the Bureau of Program Services of the Department of Rehabilitation and Correction, in an interview with the Special Master on January 23, 1976, stated her understanding to be that Paragraph 7 of Administration Regulation 814 does not apply to legal mail. The position of the Superintendent of M.C.I., on the other hand, is that while Administrative Regulation 814 authorizes the inspection of all incoming mail, including legal mail, “as a matter of policy all legal mail is opened in the Inmate’s presence.” Sheely v. Perini, Case No. C75-244, currently pending before this court. (Answer of the Defendant, paragraph 7) In order to test this announced position, the Special Master caused a letter, clearly designated as legal mail, to be addressed to an inmate in Marion whose mail was under surveillance pursuant to Administrative Regulation 814. The letter was handled in all respects as legal mail and was opened and inspected for contraband in the presence of the inmate/addressee. One additional incident brought to the attention of the Special Master was the opening of a stamped and sealed manila envelope, addressed to the Chairman of the Adult Parole Authority. The envelope was opened in an inmate’s cell in the course of a shakedown by a correctional officer. Because the envelope was inspected only for contraband in the presence of the affected inmate, and because the very purpose of a shakedown is the discovery of contraband, this conduct does not appear to be a violation of the court’s order. (Following this incident the postage was removed from the envelope and a new envelope was given to the inmate.) Apart from the specific incidents relating to legal mail discussed above, inmate allegations of interference with incoming and outgoing first class mail are widespread and have resulted in the filing of another suit in this court. Sheely v. Perini, Case No. C75244. Complaints relate to reading, delaying, and returning of mail to sender in spite of the addressee’s presence in the institution. Loss and theft of both incoming and outgoing first class mail are alleged, and instances of theft or loss of incoming packages have been verified. Complaints of delayed mail by inmates residing in the honor dormitory are particularly numerous and repetitive. While non-legal mail is not specifically within the scope of the order under consideration, the problems relating to legal mail are likely to continue until a thorough reorganization of all handling of incoming mail occurs. Furthermore, there is virtually no method of testing the effectiveness of outgoing mail procedures as they relate to legal mail without consideration of the larger problem of all outgoing mail. RELEVANT ADMINISTRATIVE REGULATIONS Paragraphs 2 and 8 of the Administrative Regulation 814, Appendix A, p. 268 infra, conform to the requirements of paragraph 1 of the Court’s order. Thus the violations of the order detailed above constitute as well violations of an Administrative Regulation issued by the Department of Rehabilitation and Correction. FINDING REGARDING COMPLIANCE It is the finding of the Special Master that the institution has made a good faith effort to comply with the provisions of Paragraph 1 of the Court’s order. No evidence of intentional violation has been discovered. On the other hand, the violations discussed above do constitute noncompliance with the order and additional procedures must be adopted to ensure full compliance. While occasional errors are bound to occur in any system, the incidence of error disclosed by this investigation appears at least in part to result from inadequate supervision of mail room personnel. PARAGRAPH 2 Paragraph 2 relates to the protection of “jailhouse lawyering” which was dealt with by the United States Supreme Court in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). The order in Taylor v. Perini contains three distinct elements: (1) Protection of inmates from sanctions, threats of sanctions or harassment in their efforts to assist one another in their legal affairs (2) A requirement that inmates wishing to work together be given a reasonable place to do so (3) Permission to the institution to limit such activity to non-working hours METHOD OF INVESTIGATION In order to test compliance with this paragraph, the Special Master and his Assistant interviewed the two inmates who currently serve as Inmate Legal Advisors, inspected the law library and its work area maintained by the institution, and compared what they heard and saw to the situation observed at Southern Ohio Correctional Facility (hereinafter S.O.C.F.) in Lueasville, Ohio. In addition, the Special Master interviewed one inmate in Marion whose jailhouse lawyering activities resulted in significant reprisals and reviewed carefully both the written and the taped record in that case. Finally, the question of the extent of cooperative inmate legal assistance permitted by the institution was discussed at some length with the Inmate Liaison Committee. EVIDENCE RELATING TO COMPLIANCE Two inmates at Marion Correctional Institution have been assigned to serve as Inmate Legal Advisors for a total population of 1321 as of January 31, 1976. Five inmates are assigned to this position for approximately 1980 inmates at S.O.C.F. Thus the ratio of 1:660 at Marion compares to a ratio of 1:396 at S.O.C.F. Given the obviously high degree of involvement in the legal process by inmates in a correctional institution, the S.O.C.F. program would appear to be understaffed. The figures at Marion indicate that the formal program of inmate legal assistance is far from adequate to serve all of the reasonable needs of the inmates. This fact becomes striking in view of the widespread phenomenon of underemployment of inmates which results from having almost two inmates for every one full-time job to be filled. (See discussion in connection with paragraph 8, p. 251 infra.) The physical area of the law library, which comprises an alcove in the general library, is small, measuring 17' by 13'. The usable work area is virtually filled by a desk, filing cabinet, and two large tables upon which typewriters are placed. This area is used for “client” interviews, counseling, research, and typing. In addition to the two Inmate Legal Advisors and the inmates they assist, all inmates wishing to conduct legal research for themselves or their fellows must utilize this limited space as law books may not be checked out of the library. The collection itself fails to meet the minimum requirements for a collection for prison law libraries published by the American Association of Law Libraries, and recommendations for significant upgrading have been made recently by an official of the Department of Rehabilitation and Correction. The three typewriters which are available in the law library are old and in a state of less than good repair. All are of the manual type. Because no photocopying machine is available to inmates (with or without charge), a single document may have to be typed as many as half a dozen times. If carbon paper is available, no more than an original and two or three copies can be prepared at one time. General library hours, and thus law library hours, are restricted to 6:00 p. m. to 8:30 p. m., Monday through Friday, and 9:00 a. m. to 3:00 p. m. on Saturday. On several occasions during on site inspections, the library was closed during these normal hours. The institution has been without a full-time librarian since November 29,1975, and no prospects for this position are in sight at the time of the submission of this report. The experienced and conscientious correctional officer currently in charge of the library is assigned as well to other duties in the area of custody. Thus, in spite of his good faith efforts to maintain a reasonable level of service in the Library, he cannot be expected to function as effectively as would a full-time trained librarian. Inmate Legal Assistants are not permitted to enter another inmate’s lock for the purpose of counseling and may not invite “clients” to their own cells or dormitories. The Assistants are not permitted to visit inmates incarcerated in correctional cells for the purpose of conducting legal business. This may result in a period of as long as 15 days without legal assistance by an Inmate Legal Advisor. One very significant case of harassment and sanctioning of an inmate jailhouse lawyer (not assigned as Inmate Legal Advisor) has been documented. The inmate involved has filed a lawsuit in this court relating to this matter. Hill v. Perini, C75-132. In February, 1975, the inmate was ticketed for a violation of Class II, Rule 19, which provides as follows: All misdemeanors specified in the Ohio Revised Code or U.S.Code such as mail violations. The entire text of the ticket, written by the Associate Superintendent for Treatment Services, consists of the following: It was called to my attention that resident Hill 132-337 has been corresponding with various legal agencies using the title “Legal Advisor.” This is not resident Hill’s title and he is not even assigned to the Law Library. Accompanying this report are copies of envelopes addressed to the resident. Placed in evidence were several envelopes bearing return addresses indicating the legal character of the letters and addressed as follows: Mr. William Hill Legal Advisor P. 0. Box 57 Marion, Ohio 43302 A letter was written by the Superintendent of M.C.I. to one attorney involved on March 27, 1975, returning the letter addressed to Mr. Hill and requesting the lawyer to “strike out the title, legal advisor, and substitute # 132-337 in it’s (sic) place.” Superintendent Perini opened and read the attorney’s letter before returning it. Hill v. Perini, Case No. C75-132 (Defendant’s Answer, paragraph 9). In the course of the hearing before the Rules Infraction Board, Mr. Hill asked the panel to inform him of the misdemeanor he was accused of committing. The answer was, “a mail violation.” When Mr. Hill asked whether he was being accused of violating a state or federal law, he was told that he could “put it that way” if he wished. Mr. Hill was convicted by a unanimous panel and sentenced to serve five days in the correctional cell. He was subsequently incarcerated in a correctional cell for five days. In July, 1975, Mr. Hill was ticketed again by the Associate Superintendent for Treatment Services. Again he was charged with a violation of Class II, Rule 19. The offense consisted of using the title “Legal Advisor” on a paper which an inmate for whom Hill was providing legal services took to the Associate Superintendent for notarizing. Hill was convicted by the Rules Infraction Board a second time and was sentenced to and served five days in the correctional cell. The panel informed Mr. Hill that he would be transferred to maximum security (S.O.C.F.) in the event of another violation. Like all convictions of Class II offenses, records of these offenses are included in Mr. Hill’s master pocket which is available to the Parole Board at the time of any hearing regarding Mr. Hill. In the course of observing hearings held in Marion by the Parole Board, both the Special Master and his Assistant noted the use by the panel of records of institutional violations. One justification offered by the panel for Mr. Hill’s conviction was avoidance of confusion to the courts and the public concerning the status of a person engaging in jailhouse lawyering. This, in turn, was based upon a memorandum dated January 15, 1974, from the then Administrative Assistant to the Director of the Department of Rehabilitation and Correction to all managing officers. See Appendix B, p. 270 infra. No conceivable reading of this memorandum provides support for Mr. Hill’s conviction of a Class II, Rule 19 offense. Finally, it should be noted that Mr. Hill made a formal request for classification as an Inmate Legal Advisor on two occasions. Both requests were rejected by the Reclassification Committee. Some difficulty has been encountered with regard to preparation and submission of petitions for habeas corpus relating to incarceration in M.C.I. As a result of the posting of a memorandum sent by a legal assistant to the Department of Rehabilitation and Correction to all managing officers, Appendix C, p. 271 infra, the current Inmate Legal Advisors came to believe that all petitions for habeas corpus had to be submitted to the Superintendent of the institution, and apparently a number have been submitted. The effect of such submission, of course, is to acquaint the Superintendent with allegations which may involve his own or his staff’s activities. Law books, like other publications, are generally permitted only if received directly from a publisher. (See discussion of Paragraph 4, p. 209 infra.) Thus an inmate with his own collection of law books must obtain prior approval for their entry into the institution. Another example of harassment was revealed by an inmate who stated that he attempted to send money to a lawyer on behalf of a friend incarcerated in M.C.I., and that he was refused permission to do so by the Associate Superintendent for Treatment Services. Difficulties encountered by residents of the honor dormitory exceed those experienced by the stockade population in several respects. Honor dormitory residents’ access to the law library in the stockade is announced to be limited to 9:00 p. m. to 11:30 p. m. on Tuesday and Thursday. Because the inmates may not leave the honor dormitory until the completion of the regular 9:00 p. m. count, these limited hours are somewhat shorter in reality. Because Inmate Legal Advisors are not on duty in the library during these hours, honor dormitory residents have no access whatsoever to the formal inmate legal assistance program. A virtually useless partial collection of reported cases constitutes the only “law library” available in the honor dormitory itself, and no facilities for typing of legal documents were observed during on site inspections of the honor dormitory. A principal difficulty involved in the encouragement of jailhouse lawyering, structured or otherwise, is the possibility that “dealing” will result. Class II, Rule 9 forbids Dealing, which shall include any transaction for which payment of any kind is made, promised, or expected. Obviously, the possibility that Inmate Legal Advisors, or their informal counterparts, will charge for their services is a real one. The need for reliance upon a system of inmate legal assistance, which is countenanced by the Court’s order and which fills to only a limited extent the need for competent legal service, outweighs the risk of dealing which is inherent in such a system. RELEVANT ADMINISTRATIVE REGULATIONS Administrative Regulation 837, Appendix D, p. 272 infra, is entirely consistent with and indeed exceeds in some respects the requirements of Paragraph 2 of the order issued in Taylor v. Perini. Thus, any violation of Paragraph 2 of that order constitutes as well a violation of the spirit and the letter of the Regulations of the Department of Rehabilitation and Correction. FINDINGS REGARDING COMPLIANCE The finding of the Special Master with regard to Paragraph 2 of the Court’s order is that the violations discussed above constitute noncompliance with the order. In particular, the Special Master finds noncompliance in the following respects: (1) Appointment of an unreasonably small number of Inmate Legal Ad-visors to serve the inmate population (2) Provision of inadequate physical facilities and support in the law library including the absence of a full-time librarian (3) Unreasonable restrictions upon access to legal advice (4) Inadequate law library hours (5) Unreasonable restrictions upon receipt of legal publications (6) Deliberate harassment of jailhouse lawyers other than duly appointed Inmate Legal Advisors (7) Imposition of any requirement that petitions for habeas corpus be submitted in advance to the Superintendent (8) Interference with inmates’ efforts to assist one another by sending money to a lawyer (9) Denial of legal assistance to residents of the honor dormitory PARAGRAPH 3 Paragraph 3 requires the institution to provide certain specific forms of assistance to inmates in connection with legal proceedings in which they are involved. The categories of assistance, which must be provided without charge or on credit, include the following: (1) Supplies in the form of paper, pencils and pens (2) Notarial services and (3) Postage METHOD OF INVESTIGATION In order to test compliance with this paragraph, the Special Master and his Assistant interviewed the two Inmate Legal Advisors functioning at M.C.I. as well as staff employed in the two mail rooms of the institution. In addition, records of requisitions submitted for law library materials were obtained from the Associate Superintendent for Treatment Services. Inmate input was provided by the Inmate Liaison Committee. EVIDENCE RELATING TO COMPLIANCE Supplies in the form of paper, carbon paper, envelopes, legal pads and typewriter ribbons are reported by inmates to be in somewhat limited supply. By all accounts pens are not made available in the law library, where all materials referred to in Paragraph 2 are kept. An inmate is not permitted to receive free supplies or to purchase any of these materials on credit in the commissary. At the same time, it does appear that the institution maintains a reasonable stock of such supplies, at least for the support of its limited formal legal assistance program. Requisitions indicate that $47.94 worth of such supplies were furnished to the law library from December 8, 1975, through March 3, 1976, averaging $15.98 per month. According to the Associate Superintendent for Treatment Services, the average monthly expenditure for law library supplies in 1975 was $8.00. Such supplies as are made available to the law library are kept locked in the desk used by the two Inmate Legal Advisors and are distributed by those men to other inmates requiring supplies. According to one inmate in the honor dormitory, “There are some supplies left out for our use.” Legal supplies of a limited nature are available for sale in the commissary, although a legal kit required by Administrative Regulation 837 is not available. With respect to provision of notarial services, a total of 71 legal documents were notarized without charge in the month which began on January 19 and ended on February 20, 1976. Three staff member,1 provided the following services: Associate Superintendent for Treatment Services ....... 20 documents Social Services Supervisor .... 47 documents Personnel Office Employee ..... 4 documents Notarial service is provided to residents of the honor dormitory by one of these three individuals on a regular basis. A widespread complaint by residents of the stockade relates to delays and “runarounds” which occur in an effort to obtain notary services. This should be compared to the system employed at S.O.C.F. where a “notary call” is held five mornings a week. Inmates desiring notary service are called on pass by Inmate Legal Advisors and a Notary Public is made available at a desk in the law library to perform notary services. Finally, it does appear that first class postage for legal mail is made available on credit on a regular basis in the inside mail room. There is no evidence that any inmate has been refused regular first class postage for legal mail. This is in addition to the one letter per week at state expense which is provided in compliance with Administrative Regulation 814(a)(4). It does appear, however, that certified postage is not made available to an inmate for any purpose unless funds in his account are sufficient to pay for the postage. Furthermore, according to an undated memorandum distributed by the mail supervisor, certified postage was not available for purchase from December 11, 1975, through January 2,1976, because of the pressures of the Christmas mail rush. RELEVANT ADMINISTRATIVE REGULATIONS There are no Administrative Regulations directly relevant to this Paragraph of the Court’s order. As indicated above, Administrative Regulation 837 requires that a “legal kit” be available for purchase in the commissary and Administrative Regulation 814(a)(4) requires that one letter per week at state - expense be provided for each inmate. The institution complies with the latter, but not with the former. FINDINGS REGARDING COMPLIANCE It is the finding of the Special Master that the institution is in compliance with the provisions of Paragraph 3 of the Court’s order, with the exception of the failure to provide certified postage for legal mail, without charge or on credit, twelve months of the year. In view of the widespread distrust by inmates of the internal mail system at Marion Correctional Institution, at least partially justified by evidence of the inefficiency of the system, the requirement that certified mail be provided, at least on credit, seems a reasonable one. While finding that the institution is in basic compliance with that portion of the Court’s order requiring the provision of notarial services, the Special Master recommends that the system employed at S.O. C.F. be adopted in order to reduce complaints regarding difficulties encountered in obtaining such services within the stockade at M.C.I. PARAGRAPH 4 Paragraph 4 relates to censorship and exclusion of printed matter, and prohibits such censorship and exclusion of materials received from any source unless the publications are obscene or such as to constitute a clear and present danger to the security or safety of the institution. Such material may be censored or prohibited only on the basis of specific criteria, and then only as a result of a process designed to insure a fair and balanced hearing panel, notice to the affected inmate, a speedy determination of acceptability, the right to appeal, and the maintenance of records of censorship and exclusion for at least one year. The order prohibits the inclusion of any reference to such proceeding in any inmate’s file. At the outset, the limits of the phrase “printed matter” must be established. In addition to newspapers, magazines, pamphlets, and books — specifically mentioned in this paragraph — inmates receive photographs and tape recordings. Photographs fall within the scope of a dictionary definition of the word “print”, which includes “a photographic copy made on a sensitized surface.” Webster’s New International Dictionary (3d ed.) Tape recordings, which may be recorded commercially (eg. music) or by friends and relatives of an inmate, are not within the plain meaning of the term “printed matter.” At the same time, magnetic tape recordings prepared by a relative or friend of an inmate are highly analogous to personal letters not subject to censorship by the terms of Administrative Regulation 814(1) except with prior written permission of the Director of the Department of Rehabilitation and Correction. This analogy is rejected by the terms of Administrative Regulation 826 which provides that all incoming and outgoing pre-recorded tapes are “subject to audible review by the staff of the institution.” This regulation provides that such tapes are subject to Administrative Regulation 814(b) which proscribes censorship or exclusion of books, newspapers, magazines and other publications unless the obscene or inflammatory nature of the publication is established. The Special Master has thus treated incoming tape recordings by whomever recorded as a specie of “printed matter” within the scope of Paragraph 4 of the Court’s order. METHOD OF INVESTIGATION In order to test compliance with Paragraph 4, a number of interviews were held with the Associate Superintendent for Treatment Services, the individual designated by the Superintendent to deal with incoming materials subject to censorship or exclusion. A record of all incidents of exclusion since January, 1975, was obtained. On January 21, 1976, the Special Master requested that such records be submitted weekly, together with all excluded material other than that sent to Columbus for review by the Publications Screening Committee of the Department of Rehabilitation and Correction. This material was reviewed by the Special Master and his Assistant. Several conferences were held with mail room personnel in Marion individually and as a group to attempt to insure that all allegedly censorable material would reach the Associate Superintendent for Treatment. The views and a statement of practices of the Department of Rehabilitation and Correction itself were obtained in the course of interviews with staff in Columbus. Finally, knowledge of inmate experiences with the system employed at M.C.I. was obtained from the Inmate Liaison Committee. CURRENT PRACTICES AT M.C.I. Censorable material may enter the institution in one of several ways. First class mail is received in the outside mail room. In the course of inspection for contraband, obscene or inflammatory material (usually in the form of photographs or advertisements) may be discovered. Second and third class mail — magazines and newspapers — are received in the inside mail room. Inspection may disclose objectionable material. The staff of both mail rooms consult a list of “not to be permitted” publications as well as another “to be permitted” list issued by the Publications Screening Committee of the Department of Rehabilitation and Correction. See Appendix E, p. 273 infra. If the item in question appears on the “to be permitted” list, it is delivered to the inmate/addressee. All other questionable material is reported to be sent from the mail room to the Associate Superintendent for Treatment Services, without notice to the affected inmate. One exception may be material which is listed as “not to be permitted” by the Publications Screening Committee. At one time the Special Master was informed by the Associate Superintendent for Treatment Services and by inside mail room personnel that all questionable material, listed or not, was sent to the Associate Superintendent; at a later point in time, the manager of the inside mail room stated that materials on the “not to be permitted list” were excluded by the staff of the inside mail room without reference to the Associate Superintendent. In such case, inmates were said to be called to the inside mail room to indicate what disposition they wished to have made of the offensive material. In view of the extremely small amount of second and third class material referred to the Special Master by the Associate Superintendent for Treatment Services, and because one copy of the “Gay Community News” which is routinely censored was retrieved by the Special Master from a wastebasket in the inside mail room in spite of the fact that the newspaper was addressed to an inmate residing at M.C.I., there is basis for believing that not all questionable material has been referred to the Associate Superintendent for his consideration. It is the belief of the Special Master that some such material is disposed of by personnel in the inside mail room. Obscene or inflammatory material may enter the institution through inmates’ visitors. In this case, it is discovered through routine searches conducted upon visitors and their possessions or through a very thorough (strip) search of the inmate upon his return from his visit. The practice at M.C.I., in accordance with Administrative Regulation 814(b)(1), is to insist that all books, magazines and newspapers be sent directly from the publisher. Unless prior permission has been obtained from the Associate Superintendent for Treatment Services, such materials are not permitted. A visitor found with such materials is told that they cannot