Taylor v. Perini (431 F. Supp. 566, 1977)

MEMORANDUM AND ORDER

DON J. YOUNG, District Judge:

The defendants have filed objections to the Third Report of the Special Master, which was filed February 10, 1977.

The objections deal with two matters in the report, the grievance machinery and the pre-hire psychological testing.

From the Court’s standpoint, these two matters have always been the most important elements in effecting compliance with the order of September 12,1972. They also have significance far beyond the narrow confines of this particular case, and must be considered in their broader aspects, if for no other reason than the administrative problems of the state department of which the Marion Correctional Institution is a part. However, they will be considered separately in this memorandum.

I. The Objection with Respect to the Grievance Machinery

The first two paragraphs of the order of September 12, 1972 prohibit the defendants from engaging in acts or practices that are discriminatory in purpose or effect, and from engaging in any form of racial harassment, intimidation or insult against members of the plaintiff class.

In ruling upon the first report of the Special Master, the Court found non-compliance with the order in that there was no effective grievance procedure maintained to process complaints relating to racial discrimination, harassment, intimidation, or insult.

The need of the development of an effective and independent grievance system was again referred to in the Second Report of the Special Master. The Court found that it would not find the order of September 12, 1972 had been complied with until a more effective and independent inmate grievance system had been developed and implemented.

The reports of the Special Master detail the work that was done toward the development and implementation of a more effective and independent grievance system. At the time of the Third Report an inmate grievance system had been developed and implemented to a considerable extent. Its functioning is being observed, not only by the Special Master, but by a special committee of persons most of whom are not in the employ of the defendants or the Department of Rehabilitation and Correction.

The defendants object specifically to the statement in the Third Report that It is the conviction of the Special Master that some form of permanent external monitoring is an essential ingredient to an effective grievance system.

The objections, however, deal with the defendants’ construction of the word “independent” which they state they had originally construed to mean independent of the institution, and not independent of the Department.

Their contentions are that until the grievance system which has been effectuated has been observed and evaluated, it is premature to conclude that external monitoring is essential to an effective grievance system; that such a system of external monitoring would add another level to the system, but might not be needed, efficient, or independent; and finally, although they refrain from developing the argument, that an order requiring external monitoring “might be beyond the scope of an appropriate plan to remedy past acts of alleged wrongdoing.”

As to the matter of prematurity, the report clearly shows that the new system is being observed and evaluated. Certainly this is proper. Experience under the new system should give some insight into how effective it may become when it is operating fully as it is designed to operate. Experience is always a useful source of knowledge in dealing with human problems. Nevertheless, experience is neither a substitute for nor better than, intelligence and reason in dealing with such problems. As Benjamin Franklin said “Experience keeps a dear school, but fools will learn in no other, and scarce in that.” This Court has already had close to a decade of experience with the problems at MCI, and shares the misgivings of the Special Master. The Court hopes that the new grievance system will prove to be so effective as to eliminate any question of the need for external monitoring. The Court’s experience clouds that hope considerably.

As to the matter of necessity, efficiency, or independence, the Court would point out that the burden in this case is not upon the plaintiffs now, since they prevailed, but on the defendants. While the Court has no enthusiasm for the normal political process of creating additional layers of staff when jobs do not get done, it is up to the defendants to prove that they can comply with this Court’s order without the necessity of having some one with no axe to grind calling their deficiencies to their attention.

In simplest terms, the problem may ultimately reduce itself either to the independent monitoring group, or the necessity of the Court retaining jurisdiction indefinitely. In another case, the Court pointed out that history seemed to indicate that it took forty years to eliminate all vestiges of bad old practices. In more immediate times, in the Hartford Empire case, this Court monitored its order for more than thirty years. It can do so again if it has to.

Finally, the suggestion that future wrongs are beyond the scope of a remedy for past wrongs does not withstand analysis. In the first place, the past wrongs which gave rise to this litigation neither have been nor can be remedied. An insult once uttered cannot be recalled, nor can a person who has been insulted or harassed ever be made fully whole. Under our common law, the only remedy the law provides for such wrongs is an award of damages, which was not made and cannot now be made in this matter.

The Civil Rights laws contemplate that in addition to that common law remedy, there is also the equitable remedy of injunction. This remedy is entirely prospective. It operates only to prevent future wrongs. The law, however, is not so naive as to suppose that merely saying “Thou shalt not ...” is sufficient to eliminate future evil. The only real remedy that this Court can give in this case is to see to it that the defendants demonstrate their compliance with the order of September 12, 1972 by adopting administrative procedures that will insure, a permanent change of old bad habits.

It has already been conclusively established in this case that the defendants did not, for a long time, comply with this Court’s order. Whether or not this Court maintains continuing jurisdiction in this case, the order of September 12,1972, binds the defendants in perpetuity, and anyone who conceives himself to have been injured by a violation of the order may bring action to require the defendants to show cause why they should not be punished as for contempt for the violation. In such a context it cannot possibly be said that future wrongs are beyond the scope of this case.

The defendants’ objections to that portion of the Third Report of the Special Master dealing with the grievance machinery will be overruled.

II. The Objection with Respect to the Pre-hire Psychological Testing

Paragraph 10(d) of the order of September 12, 1972 is expressed in very clear and simple language. It requires the 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.

As the case developed after September 12, 1972, it became apparent both from the evidence adduced at various hearings in open court, and the reports of the Special Master, that this rather simple paragraph was causing very complex problems.

Roughly, these problems seem to fall into two categories. The first was that which resulted from the defendants’ belief, expressed both overtly and'covertly, that this provision was a manifestation of the Court’s theorizing, which they had no intention of paying any attention to whatsoever, except to the extent necessary to deceive the Court by pretending to comply with it.

The second category of problems arises from the fact that psychologists did not appear to agree that there were any readily available tests, or perhaps any tests at all, designed to accomplish the purpose of the subparagraph. This apparent disagreement was most unfortunate, for the Court is stubborn in its belief that compliance with this subparagraph is one of the most important, if not the most important, of all the elements involved in the Court’s order.

The necessity of holding a hearing so that the Court could resolve the conflicting views of the psychologists was resolved by the apparent agreement of the parties to have experts construct and validate a test battery which could be used to bring the defendants into compliance with the order. Part of this has been accomplished, although it was necessary for the Court to amend and elaborate the language of sub-paragraph 10(d) in order to do so. This elaboration did not in any way change the basic form or meaning of the subparagraph. According to the reports of the Special Master, a tentative test battery has been constructed, and is about to be employed.

The defendants’ objections are in the form of a refusal to make the necessary follow-up tests to determine the validity of the final test battery which will be designed for them to use in order to comply with the Court’s order.

The defendants also question the portion of the report of the Special Master that the cost of scoring and clinical evaluation of the tentative test battery to be administered in compliance with the order is outside of the contract with the experts developing the test battery, and will have to be paid for by the defendants.

As to this matter, the order of September 12, 1972 is clear and dispositive. The order requires the defendants to administer the test. Obviously, administering the test involves more than having the candidate fill out the papers and then discarding the papers. The tests have to be scored and evaluated by someone competent and professionally honest enough to do so properly. The Court supposed that this matter had been resolved in connection with the hearings which led.to the appointment of the Special Master. The defendants’ objections in this regard will be overruled. It is , their obligation to administer and to pay for the scoring and evaluation of all future pre-hire psychological examinations.

To return to the matter of the “longitudinal empirical validation study” which the Special Master reports should be made, and which he hopes that the Department will cooperate with, the Special Master says that he does not regard such a step as being essential to compliance with subparagraph 10(d) of the order. The Court would perhaps have agreed at the time the order was entered. However,- the conduct of the defendants with respect to compliance, and the difficulties that have been encountered in respect to the construction of an acceptable test battery, have a strong tendency to make the Court feel that from a strictly legal standpoint, it is incumbent upon the defendants to establish empirically, as well as theoretically, the validity of the final battery constructed..

In a sense, it is somewhat incongruous for the defendants, who have continuously taken the position that the empiric method is the only proper way of proving anything, to be satisfied now with merely theoretical proof. It reminds one somewhat of Don Quixote’s construction of his helmet. It also raises questions as to whether there may not be some rather obvious ulterior motives, such as that of saving money, for defendants’ eagerness in this instance to rely on the scientific method instead of empiricism.

The Court is not prepared to make a final resolution of this problem at this time. It was possible to avoid doing so in the. matter of constructing the test battery by getting a grant of funds. Perhaps if a sufficiently unified and enthusiastic attempt is made to do so once more, the necessity for a showdown with perhaps a resultant appeal, can again be avoided.

The defendants’ objections in this regard will be overruled at this time, with leave, however, to refile them if the problem remains unsolved at the time of subsequent reports of the Special Master.

WHEREFORE, for the reasons stated, good cause therefor appearing, it is

ORDERED that the objections of the defendants to the Third Report of the Special Master be, and the same hereby are, overruled; and it is

FURTHER ORDERED that the Third Report of the Special Master be, and the same hereby is, adopted in all respects; attached hereto as Appendix A, incorporated herein by reference, and made a part hereof as fully for all intents and purposes as if set forth at length herein; and it is

FURTHER ORDERED that the defendants have leave to renew their objection to the conducting of a longitudinal empirical validation study of the psychological test battery at an appropriate future time, should they desire to do so.

IT IS SO ORDERED.

APPENDIX

THIRD REPORT OF THE SPECIAL MASTER ON THE DEFENDANT’S STATE OF COMPLIANCE

Submitted by Vincent M. Nathan, Special Master.

INTRODUCTION

The report which follows describes the defendant’s state of compliance with the Court’s Order in this case as of January 21, 1977. As the third report of the Special Master, it supplements earlier reports which may be found in Taylor v. Perini, 413 F.Supp. 189, 198 (N.D.Ohio 1976) and Taylor v. Perini, 421 F.Supp. 740, 742 (N.D.Ohio 1976). The original order to which this report relates may be found in Taylor v. Perini, 413 F.Supp. 189, 194 (N.D.Ohio 1976). No effort is made to restate the detailed provisions of that Order or the conclusions and findings of the Special Master contained in earlier reports.

The work of the Special Master in this case has consumed almost thirteen months. Superintendent Perini and his staff as well as Director George Denton and his staff have continued to cooperate in every way and have made themselves available to deal with the difficult problems underlying this case. As a result, substantial progress has 'been made in effectuating many provisions of the Court’s Order. While several serious problems remain, steps have been taken to develop compliance plans with respect to all of the provisions of the Order.

PROHIBITORY PARAGRAPHS

Since the Court’s adoption of the second report of the Special Master on September 23, 1976, the principal emphasis of the Special Master has been upon the implementation of a compliance plan with respect to these paragraphs. The compliance plan described in that second report consisted of (1) development of an effective and independent grievance system to deal with allegations of racial discrimination, harassment, intimidation or insult and (2) establishment of a permanent inmate council at Marion Correctional Institution. Substantial progress has been made in both areas.

The special committee established on June 4, 1976, to study Ohio’s inmate grievance system submitted its unanimous report to Director Denton on October 8, 1976. That report consisted of a letter of transmittal together with four proposed Administrative Regulations. See Appendix A, page 598 infra. Proposed Administrative Regulation 845 provides for the appointment of an Inspector of Institutional Services at each correctional institution under the jurisdiction of the Department. While reporting directly to the institution’s superintendent, the Inspector of Institutional Services is accountable as well to the newly established departmental grievance officer established by proposed Administrative Regulation 845A. This individual serves two functions. The first is that of an appellate officer to hear inmates’ appeals from decisions rendered by the Inspector of Institutional Services and/or the Superintendent; the second is that of a monitoring agency to insure that local grievance systems are operating efficiently and in keeping with the Department’s policies.

Proposed Administrative Regulation 845B establishes a new and somewhat more efficient grievance procedure to be followed by inmates. The system is designed to provide the fastest possible response to grievances as well as to develop written records for review by the departmental grievance officer and others. Finally, proposed Administrative Regulation 845C calls for the establishment of an external review commission to examine and review the operation of the new grievance system. The membership of the proposed commission would consist of five persons nominated by the deans of the state supported law schools in Ohio, three persons selected by the Director of the Department of Rehabilitation and Correction, and one person (to serve as chairman) nominated by the Chief Justice of the Supreme Court of Ohio.

Following the submission of its written report, the special committee met with Director Denton and members of his staff on October 19, 1976. A number of aspects of the committee’s proposals were discussed at that meeting. On November 5, 1976, the Director responded to the Chairman of the special committee, accepting with only minor modification the Committee’s proposed Administrative Regulations 845, 845A and 845B. The Director rejected proposed Administrative Regulation 845C and suggested in its place interim monitoring by the special committee for a period of several months.

In a subsequent meeting between the Director and the Special Master on November 10, 1976, agreement was reached with respect to all details concerning proposed Administrative Regulations 845, 845A and 845B. A compromise was reached with respect to the issue of outside monitoring. The plan which emerged was the creation of a temporary external monitoring committee charged to report both to the Director and to the Special Master after six months of study of the new system. Both parties agreed to the appointment of John Conrad (the chairman of the earlier special committee) to serve as Chairman of the external monitoring committee. It was further agreed that the Special Master would be authorized to nominate two of the six members of the monitoring committee, subject to the Director’s power of veto. Mr. Denton agreed to provide full support for the activities of the committee and to insure cooperation from all employees of the Department of Rehabilitation and Correction. On December 21,1976, the Department issued new Administrative Regulations containing the provisions agreed upon by the Special Master and the Director. These Administrative Regulations numbered 5120-9-29, 5120-9-30, and 5120-9-31 are attached as Appendix B, page 607 infra.

On January 7, 1977, the Director and the Special Master met again to agree upon the membership of the monitoring committee. The committee which emerged from that discussion consisted of the following persons:

Chairman:

Mr. John Conrad Columbus, Ohio

Members:

Mr. William L. Howland Portsmouth, Ohio

Mrs. Robert F. Jackson Toledo, Ohio

Dr. Walter D. McClaskey Marion, Ohio

Mr. Harrison Morris Columbus, Ohio

Mr. Norman Zemmelman Toledo, Ohio

Mr. Conrad is a Senior Fellow in the Center on Crime and Justice at the Academy for Contemporary Problems. Mr. Howland is an attorney and a past President of the Ohio State Bar Association. He serves as a member of the Citizens Advisory Committee for Southern Ohio Correctional Facility. Mrs. Jackson is an active volunteer worker and a past Chairman of the League of Women Voters in Toledo. Dr. McClaskey is a member of the House of Representatives of the Ohio Legislature and serves as a member of the Citizens Advisory Committee for Marion Correctional Institution. Mr. Morris is the Educational Administrator of Ohio’s Department of Rehabilitation and Correction. Mr. Norman Zemmelman is an attorney with substantial experience in the field of criminal law.

The Director and the Special Master agreed upon the substance of a charge to the external monitoring committee. See Appendix C, page 613 infra. On January 11, 1977, Director Denton appointed the committee and distributed copies of the joint charge to all members. That committee will begin to function in early February, 1977. Its report will be due on or about August 1, 1977.

Pursuant to Administrative Regulation 5120-9-30, Mr. David R. McKeen was appointed to serve as Chief Inspector of the Department of Rehabilitation and Correction. Mr. McKeen’s first task was the appointment of persons to serve as Inspectors of Institutional Services at the various institutions throughout the state. In a number of institutions, persons who were serving as Inmate Liaison Officers under the former system were retained; in several, however, including Marion Correctional Institution, new appointments were made. Mr. McKeen has met with all the Inspectors and has prepared forms and issued directives for the implementation of the new grievance system.

The two inmate councils — one for the stockade and one for the honor dormitory— elected at M.C.I. on August 6, 1976, have functioned with reasonable success since that time. Superintendent Perini assigned his Associate Superintendent for Treatment Services to provide liaison between the stockade council and the Superintendent; the same function in connection with the honor dormitory council was assigned to the Administrative Assistant to the Superintendent at M.C.I. Both of the councils have experienced difficulty in convincing other inmates that sufficient progress is being made. It is fair to say, however, that such difficulty was foreseeable at the time the councils were formed. There is substantial evidence that Superintendent Perini has made a good faith effort to cooperate with both groups, and the staff members who have been assigned to serve as liaison have been effective in their efforts to work with the inmate groups at the first level of staff involvement.

Both councils have adopted rules of governance which have been approved by Superintendent Perini. See Appendix D, page 615 infra. In the case of the stockade council in particular, a good deal of time was necessary for internal organization and investigation of general inmate complaints. Both groups, however, have accomplished certain of their objectives.

For example, on December 17, 1976, Superintendent Perini responded formally and positively to an earlier request by the stockade council for the development of a new system to remedy shortages in sheets and pillow cases issued to inmates. The new policy is reported to be effective in dealing with the problem. The stockade council itself has issued one report to the general population, summarizing its activities from August, 1976 to January, 1977. That report is attached as Appendix E, page 624 infra.

The honor dormitory council has addressed itself to a number of problems in that unit. On December 17, 1976, Superintendent Perini made a formal response to a number of problems raised earlier by the council. That response is attached as Appendix F, page 626 infra. In addition, Superintendent Perini’s Administrative Assistant has been successful in resolving a number of complaints (e.g. malfunctioning of plumbing) without recourse to the Superintendent.

Meetings between the two councils and the Superintendent have not been frequent or regular. This has resulted to a large extent, however, from the difficulties experienced by both groups in organizing themselves as well as from the laudable insistence of the inmate groups that they be prepared factually on an issue before presenting it to the Superintendent. With the end of the expected shakedown period, it is to be hoped that regular meetings with the Superintendent will occur.

Under the rules adopted by both inmate councils, members serve for a period of six months. A second election was held on February 5, 1977. The number of inmates who voted in the election was high, indicating that the councils have commanded the interest of the population of the institution.

The Special Master has been very favorably impressed by the quality of both the leadership and the general membership of both of the inmate councils. The transition between the original groups and the newly elected councils will be of the utmost importance to the future operation and effectiveness of these inmate bodies.

One additional matter remains to be discussed in connection with the prohibitory paragraphs of the Court’s Order. In his first report, the Special Master made a finding of discrimination with respect to the denial of a request by inmates of Hispanic origin to form an institutional organization. Taylor v. Perini, 413 F.Supp. 189, 267 (N.D.Ohio 1976). Since that time, efforts have been made to address the needs of Hispanic inmates in two ways. Special provision was made for Hispanic inmates to elect one member of the stockade inmate council. In addition, Mr. Kenneth Cookson, the Assistant to the Special Master, has met several times with these inmates to develop a Spanish Culture program. Mr. Cookson has been aided in this effort by Father Frederick Furey, the Catholic Chaplain at M.C.I. As a result of these meetings a proposal and set of guidelines for such a program is in the process of preparation and will be presented to the Superintendent in the near future.

CONCLUSIONS

In the opinion of the Special Master, very substantial progress has been made to deal with the difficult problems of racial discrimination harassment, intimidation, and insult which are proscribed by the prohibitory paragraphs of the Court’s Order of September 12, 1972. The newly adopted departmental grievance system is designed to deal with complaints of this nature as well as other grievances which inmates may have. It is the conviction of the Special Master that some form of permanent external monitoring is an essential ingredient in an effective grievance system. This was the position of the special committee which studied the former system and recommended extensive change including the adoption of permanent external monitoring. The precise form of the external monitoring mechanism is not a matter of great importance so long as the review is conducted primarily by persons outside the correctional structure and independent of the Department of Rehabilitation and Correction. A chief effect of external monitoring will be to promote the system’s credibility in the eyes of inmates and thus to encourage them to utilize the grievance procedure. In addition, reliable external monitoring will be of substantial assistance to the Director in conducting the continuous assessment of the system which is necessary in order to maintain an effective grievance mechanism. Thus far, the Department of Rehabilitation and Correction has agreed only to interim monitoring for six months, and it is the strong recommendation of the Special Master that this matter be reconsidered by the Department during the initial monitoring period.

As predicted by the Special Master in his second report, the newly established inmate councils at M.C.I. have not accomplished miracles. With the continuation of a good faith effort by the prison’s administration to cooperate with the councils and to strengthen them, these organizations may take root in the institution. Above and beyond all other compliance efforts, Superintendent Perini and his staff must recognize that this will be the chief contribution of the institution itself to the termination of this litigation and the prevention of future suits like Taylor v. Perini. With respect to the Department of Rehabilitation and Correction, the implementation of an effective and independent grievance system is the chief contribution which it can make toward these goals.

PARAGRAPH 1

Seven incidents of error in the handling of legal mail addressed to inmates at M.C.I. have occurred since the end of the period covered by the second report of the Special Master.

Of these, only five can be attributed to improper treatment by staff at Marion Correctional Institution. Four occurred on the same day and resulted from the error of one relief officer. The period covered by this report includes the unusually heavy mail received by the institution around Christmas. Superintendent Perini obtained the names of senders of legal mail opened improperly by M.C.I. staff and sent letters of apology to all of those persons.

Inmates continue to complain about general mailroom operations, alleging that sorting and delivery are not being handled in a conscientious and efficient manner. These complaints are under consideration at this time by the stockade inmate council, and it is to be hoped that the council and the administration will be able to work together to devise improved procedures.

CONCLUSIONS

The institution remains in compliance with the provisions of Paragraph 1 of the Court’s Order. The incidence of error, while unfortunate, remains within reasonable bounds. That regular mailroom personnel have become familiar with the newly adopted procedures is confirmed by the fact that all errors chargeable to M.C.I. staff were committed by two relief officers. This phenomenon, however, makes it clear that greater care must be exercised in training and supervising relief personnel in the mailrooms in the institution.

PARAGRAPH 2

The stockade law library at M.C.I. continues to be staffed by two inmate law clerks and one inmate typist. According to the inmate law clerks involved, this number is sufficient to handle the workload in the law library. The Special Master has attempted to determine on an independent basis whether or not this is the case. In order to do so, he asked the inmate law clerks to complete “Legal Assistance Request Forms” for all inmates requesting legal assistance from a clerk. Between November 22, 1976 and January 8, 1977, 40 such requests were made. No inmate has complained to the Special Master that the law library is staffed inadequately.

The inmate law clerks continue to complain about the absence of duplicating facilities which would avoid the necessity to type as many as 12 copies of some lengthy legal documents. Three photocopy machines are located in the institution, and inmates are apparently willing to pay for-copies. Although no machine is located in an area to which the law clerks have access, arrangements could be made to have photocopying done on a daily or every other day basis. This would have the effect of freeing the inmate law clerks for other and' more important tasks.

The inmate law clerks have complained as well about difficulties encountered in contacting the inmates for whom they are doing legal work. This requires a greater degree of freedom of movement throughout the institution or the ability to call inmates on pass during their non-working hours.

On September 15, 1976, Professor Rhoda L. Berkowitz, who has been serving as consultant to the Special Master with respect to the development of adequate law library facilities at M.C.I., submitted a list of books which she recommended be purchased for the stockade law library. See Appendix G, pages 629-630 infra. On October 5, 1976, Mr. Stephen Yost of the Department of Rehabilitation and Correction, informed the Special Master that “that library is essentially in compliance with Professor Berkowitz’s list except for the purchase of a few additional copies of the ‘nutshell’ volumes.” In the near future, Professor Berkowitz will conduct her own inventory of legal materials in the stockade library and report to the Special Master.

Since the Court’s adoption of the second report of the Special Master, a new law library has been opened in the honor dormitory at M.C.I. Two inmate law clerks have been assigned to this area which serves also as a general library for inmates in the honor dormitory. This level of staffing appears to be entirely adequate for the population of that unit. Thirteen legal assistance request forms were received by inmate law clerks in the honor dormitory between December 17, 1976 and January 11, 1977.

Unfortunately, an adequate supply of law books has not yet been placed in the honor dormitory law library, and shelving for the books which will be placed there has not yet been completed. Steps have been taken, however, to accomplish these objectives.

On September 15, 1976, Professor Berkowitz submitted a list of books which she recommended be purchased for the honor dormitory library. See Appendix H, page 630 infra. On October 5, 1976, Mr. Yost informed the Special Master that the institution “has been directed to undertake to bring the honor dormitory law library up to the basic level as set forth in Professor Berkowitz’s list and to report their progress in this direction by November 15, 1976.” Following this directive, efforts were made to obtain a number of used law books from publishers, but this effort was unsuccessful. Other correctional institutions in Ohio were contacted, and a number of duplicate copies in those institutions were sent to Marion.

Subsequently, Mr. Yost and the Special Master agreed that efforts would be made in the first instance to obtain for the honor dormitory law library all books on a list of recommended books compiled by Mr. Yost on December 15, 1975. See Appendix I, pages 631-632 infra. This list is somewhat shorter than that proposed by Professor Berkowitz, and Mr. Yost agreed that further consideration would be given to additional purchases recommended by Professor Berkowitz after the honor dormitory law library reached recommended departmental standards. An inventory of the law book holdings in the honor dormitory was completed by one of the inmate law clerks on December 7, 1976, and an order for a number of titles was prepared by Mr. Yost and approved by the Assistant Director of the Department on January 4, 1977. To date, some but not all of these volumes have been received in Marion.

The Special Master has not made an independent inventory of current law library holdings in the honor dormitory. Casual inspection, however, makes it clear that a substantial number of the required volumes are not available at this time to inmates in the honor dormitory. While efforts are being made to develop the honor dormitory law library, those inmates do not have access to the law library in the stockade. It is reported, however, that law books are sent to the honor dormitory from the stockade on a loan basis when certain volumes are requested by inmates and/or law clerks in the honor dormitory.

The honor dormitory law library is under the jurisdiction of the institution’s librarian, Mr. David Williams. Inmate law clerks report that the new facility has been stocked with adequate quantities of legal supplies. Several work tables are available to inmates as is one typewriter. The law library is open Monday-Friday, 12:30-8:30 p. m.; Saturday, 8:30 a. m.-3:30 p. m.; and Sunday, 1:00-9:00 p. m.

CONCLUSIONS

A careful and complete inventory of all legal materials held in both law libraries at M.C.I. is necessary in order to be certain that all required legal materials have been ordered. The Special Master recommends that such an inventory be conducted personally by Mr. Stephen Yost in cooperation with Professor Berkowitz in order to obtain completely reliable data. Steps must be taken to bring both facilities up to department standards as quickly as possible. As the new library is being developed in the honor dormitory, it is essential that the institution’s librarian assume complete responsibility for cataloguing, shelving, and maintaining records with respect to all volumes received. Inmate law clerks in both facilities must be taught to maintain the collections by inserting pocket part supplements, replacement volumes, etc. Regular and frequent inspections of both facilities by the institution’s librarian are necessary in order to be certain that the libraries are clean and usable at all times.

As inmates assigned to work in either law library leave the institution or are reassigned, it is necessary that steps be taken to assign new men to these jobs as quickly as possible so that the flow of legal services to inmates will continue without interruption. In addition, steps must be taken at once to provide inmate law clerks with greater and easier access to the inmates for whom they are doing legal work. A procedure for accomplishing this should be the responsibility of the Director of Education who is responsible for all library operations in the institution.

It is the recommendation of the Special Master that the institution consider the feasibility of making improved photocopy facilities available to inmate law clerks for the duplication of legal documents. Inmates for whom the service is used should be charged the actual cost of the service, and a cash slip system of payment should be devised. All copying should be done in such a manner as to protect the confidentiality of the documents involved while permitting the institution to meet its legitimate security needs.

PARAGRAPH 3

No difficulties have been reported by inmates with respect to provision of supplies in connection with legal proceedings in which they are involved. Adequate supplies are on hand in the institution’s two law libraries; in addition notarial services are available in both units on a regular basis. One inmate experienced difficulty in ; obtaining notarization of a document by the Notary Public serving the honor dormitory. The Special Master investigated the matter and determined that the staff member was justified in refusing to notarize the document since the last page of the document in chief was almost blank and the signature line was placed on the next page. The document was notarized in its then existing form by a staff member in the stockade. Finally certified postage was made available to inmates for legal mail during the period around Christmas, 1976. This was the institution’s first opportunity to rectify earlier noncompliance in this respect which occurred during the Christmas season of 1975.

CONCLUSIONS

The institution remains in full compliance with all of the provisions of Paragraph 3 of the Court’s Order of September 12, 1972.

PARAGRAPH 4

Between August 9, 1976 and December 31, 1976, 43 incoming publications were screened by the Publication Screening Committee at M.C.I. Of this number, the following 32 publications were excluded:

Apart from materials sent to Columbus in connection with an inmate’s appeal from the decision of the institutional Publication Screening Committee, the Special Master has seen all of the excluded publications. All appear arguably to fall within the definition of “obscenity” or “clear and présent danger” contained in the standards for exclusion of printed materials adopted bjl the institution and approved by the Court.' See Taylor v. Perini, 421 F.Supp. 740, 775-76 (N.D.Ohio 1976). All procedures utilized by the institution’s Publication Screening Committee and the composition of that committee remain unchanged from the description contained in the second report of the Special Master. Id. at 747-49.

Four decisions of the M.C.I. Publication Screening Committee during this period were appealed to the Department’s Publication Screening Committee in Columbus. With the Court’s adoption of the second report of the Special Master, the Department’s Publication Screening Committee is required to act upon all such appeals within 28 working days from the time of receipt of the appeal. Taylor v. Perini, 421 F.Supp. 740, 749 (N.D.Ohio 1976). The following indicates that the Departmental committee has not been entirely successful in meeting this standard:

Publication On Appeal Date Appeal Number of Received Decided Working Days Decision

Sept., '76 "Hustler" 9/7 9/14 5 Exclusion

"Guns and Ammo" 10/9 12/2 38 Exclusion

"Foto-Rama" 10/29 12/9 26 Exclusion

three books 12/13 1/31 35 Exclusion

Thus, in two of four cases appealed to the Publication Screening Committee, the new and extended deadline for decision has not been met. According to Reverend Frederick R. Silber, the Coordinator/Convenor of the departmental committee, much of this difficulty results from the use of a committee comprised partially of volunteers. Nonetheless, Reverend Silber has agreed to take steps to insure that all future appeals from M.C.I. will be decided within the 28 working day deadline.

A second matter of some concern has arisen at the departmental level since the Court’s adoption of the second report of the Special Master. On December 21, 1976, the Department filed Administrative Regulation 5120-9-19 on the subject of Printed Materials. See Appendix J, page 633 infra. The new Administrative Regulation permits exclusion based upon a finding of “obscenity” or “clear and present danger”, and the criteria for these standards are the same as those utilized by the Publication Screening Committee at M.C.I. Thus in these respects, departmental and institutional policies are consonant. In several very important respects, however, the new Administrative Regulation is inconsistent with the requirements of the. Court’s order in Taylor v. Perini. For example, while the Court’s order requires the admission of printed material from any source, section (B) of the Administrative Regulation continues the earlier policy of requiring prior approval of the managing officer or his designee in the case of printed material not received directly .from a publisher o.r .distributor. Section (B)(1) of the Administrative Regulation treats all pre-recorded magnetic tapes as printed materials, although the Court adopted the recommendation of the Special Master in his first report that pre-recorded personal (as opposed to commercially recorded) tapes be treated like personal letters and that they be listened to only to the extent necessary to determine that they are personal in nature. Taylor v. Perini, 413 F.Supp. 189, 215 (N.D.Ohio 1976). In addition, the Administrative Regulation does not require the use of a three person panel for screening and does not impose a one week limit for decision making by such a panel.

The Special Master is fully aware that the Court’s Order in Taylor v. Perini does not mandate reform of departmental policies to the extent that those policies are applied to correctional institutions other than Marion Correctional Institution. On the other hand, it should be remembered that the provisions of Paragraph 4—like the rest of the Court’s Order in Taylor v. Perini —was in effect consented to by the Department of Rehabilitation and Correction. Under these circumstances, the maintenance of one publication screening policy for M.C.I. and a different policy for all other correctional institutions in Ohio is somewhat difficult to understand. Quite apart from the utility of such a double standard, its application is likely to bring about confusion on the part of officials at M.C.I. and to affect in an adverse manner the excellent record of compliance which has emerged over the past nine months. Finally, in the opinion of the Special Master, the adoption of the new Administrative Regulation does not auger well for continued compliance at M.C.I. once the Court has terminated its jurisdiction in Taylor v. Perini.

At the request of the Special Master, Director Denton has ordered that Administrative Regulation 5120-9-19 be reconsidered with a view toward harmonizing it with the provisions of the Court’s Order in Taylor v. Perini. In addition, the Director has reminded Superintendent-Perini of his obligation to ignore the Administrative Regulation to the extent that it conflicts with the Court’s Order.

CONCLUSIONS

The institution remains in full compliance with the provisions of Paragraph 4 of the Court’s Order of September 12, 1972. The Department’s Publication Screening Committee, on the other hand, has not yet come into compliance with the requirement that all appeals from adverse decisions at the institutional level be decided by the departmental committee within 28 working days. It is essential that such compliance commence at once. Finally, the adoption of newly revised Administrative Regulation 5120-9-19 has created a number of potential problems with respect to the institution’s continued compliance with this paragraph of the Court’s Order. It is hoped that these problems will be obviated as a result of the review of the Administrative Regulation which the Department has undertaken.

PARAGRAPH 5

At the time of the adoption of the second report of the Special Master, the Court granted “the motion of the defendant for a finding of compliance with Paragraph 5 of the September 12, 1972 order with the understanding that the Honor Dormitory Law Library will be completed.” Taylor v. Perini, 421 F.Supp. 740, 742 (N.D.Ohio 1976). At that time 30 volumes required by the order were not on the shelves at M.C.I. Since the finding of compliance, 12 of these 30 volumes have been placed on the shelves of the institution’s library. Of the 18 remaining volumes, nine are on order and nine out of print. Thus, in spite of the Court’s earlier conditional finding of compliance, the institution has continued to attempt to come into complete compliance with Paragraph 5.

PARAGRAPH 6.

The Special Master has received a complete draft for a new inmate manual from the institution’s training officer. That draft has been edited and partially rewritten by the Assistant to the Special Master. The next step in the development of a new manual providing fair notice of all rules and regulations together with the sanctions for the violation thereof will be the presentation of this draft to staff at M.C.I. for final review.

CONCLUSIONS

A new inmate manual meeting the requirements of Paragraph 6 of the Court’s Order will be ready for publication within 90 days following the submission of this report. The manual will be in looseleaf form to permit up-to-date amendment of rules and regulations as well as the sanctions for violation thereof.. The publication and distribution of this manual to the insti- . tution’s population will constitute full compliance with this paragraph of the Court’s Order.

PARAGRAPH 7

One violation of the 30 day limit on incarceration in a correctional cell within a six month period has occurred since the second report of the Special Master. An inmate by the name of Corbin (139-965) served seven days in a correctional cell from April 29, 1976, until May 6, 1976. He spent an additional 11 days in such a cell between June 23, 1976, and July 3, 1976. He was sentenced once again to a correctional cell on August 17, 1976. Fourteen days later, on August 30,1976, the Special Master’s assistant became aware that the 30 day limit had been exceeded by two days and reported that fact to Superintendent Perini by telephone. Superintendent Perini ordered the immediate release of the inmate, and the release was effected on the same date. At the same time, Mr. Perini issued orders to staff in the institution’s record office to notify him whenever a sentence imposed by the Rules Infraction Board would result in violation of Paragraph 7(a) of the Court’s Order.

Subsequently, on,November 2, 1976, Mr. Corbin once again entered a correctional cell as a result of his refusal to return to his housing area. He spent five days in the correctional cell until his release on November 7. On that date he had served exactly 30 days within a six month period, and he was transferred to the infirmary where he was placed in a nondisciplinary cell or ward until November 17, 1976, when he was transferred to Southern Ohio Correctional Facility. At the time of the inmate’s last incarceration in a correctional cell, it appears that the system adopted to enforce compliance with the Court’s limitation operated effectively, and the limit was not exceeded.

Several violations of the “normal medical care” provision of Paragraph 7 occurred in September and December of 1976. It should be recalled that the order in Taylor v. Perini was modified in effect by this Court’s Order in Price v. Perini, issued on January 14, 1976, requiring that “regular visits ... be made (to the correctional cell area) by the medical staff without the necessity of a request.” Three such rounds were not made on both September 17 and 21; no first shift rounds were made on December 1, 2, or 3. These violations were brought to the attention of Mr. C. E. Parker, the Infirmary Administrator, by the Special Master’s assistant. On both occasions, Mr. Parker stated that he woüld take steps to avoid recurrence of the violation.

No other violations of any provision of Paragraph 7 of the Court’s Order have been discovered by the Special Master since the expiration of the period covered by his second report.

CONCLUSIONS

The institution remains- in good -faith compliance with this paragraph of the Court’s Order. While occasional errors may be inevitable, it appears that when Mr. Perini and his staff learn of such violations they take immediate steps to prevent recurrence. Because violations did occur with respect to the time limit imposed upon incarceration in a correctional cell and the making of regular medical rounds on all three shifts of each day, it is the recommendation of the Special Master that Superintendent Perini continue to monitor these two areas with great care.

PARAGRAPH 8

The new full-time education program which was adopted at M.C.I. in order to reduce the number of inmates in need of regular jobs went into effect on or about September 1, 1976, as scheduled. As of December 14, 1976, the new program had reached the following levels of enrollment:

Pro gram Enrolled as of December 14, 1976 Program Capacity

Adult Basic Education 71 160

General Educational Development 30 40 (G.E.D.)

Vocational Education 81 105

College Program 101 75

Total 283 380

While 74% of the total program capacity has been reached, this results from substantial overpopulation (135%) in the college program. Only 44% of program capacity has been achieved in the Adult Basic Education program while 75% and 77% of such capacity has been achieved in the G.E.D. and vocational educational programs respectively.

These data do not include 20 vocational students who had been interviewed and approved for entry but who had not passed through the Reclassification Committee at that time. Adult Basic Education, the program with the lowest enrollment in the educational department, is the only element which is not on schedule according to the Director of Education at M.C.I. By March 1, 1977, the Director of Education predicts that capacity enrollment in all programs except A.B.E. can be achieved and that between 100 and 125 residents can be participating in the A.B.E. program.

No overall plan of compliance has been adopted with respect to the development of objective and reviewable written procedures relating to assignment, promotion, transfer, and removal of inmates to and from job assignments. Such a plan is in the process of development, however, and will be submitted to the Court within 60 days of the confirmation of this report. The first step in the development of a compliance plan is almost complete at this time. This involves the development of reliable job descriptions for all work assignments in the institution. In order to obtain this information, Professor Timothy Heinsz in his capacity as consultant prepared forms for completion by all job supervisors in the prison. When these were received, a number of supervisors were contacted personally to clear up ambiguity in the job descriptions which they submitted. Subsequently, members of the two inmate councils were asked to prepare descriptions of the same jobs. These have been received, and Professor Heinsz is now in the process of developing final descriptions. These in turn will be submitted to job supervisors for final critique. The job descriptions which emerge from this process will meet the mandate of Paragraph 8(a) of the Court’s Order which requires “precisely worded, job related substantive criteria for job assignment, transfer and removal.”

The heart of the difficulty with respect to Paragraph 8 lies in the substance of subsection (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.

Any plan of compliance must take into account the phenomenon of intra-shop as well as inter-shop transfers and initial assignments. The system which is finally adopted should be as simple and uncomplicated as possible and should be designed to make it possible for inmates with the quali-. fications and desire for self-improvement to progress to a job which is useful and challenging. A fair system of job assignment, promotion, transfer, and removal should produce a reasonable degree of racial balance within all employment units in the institution. Finally, the system must eliminate all vestiges of power held by some inmates over job assignments which results in their ability to sell such jobs to other inmates.

The development of a compliance plan to accomplish all of these objectives will not be a simple task. Indeed, there is an element of contradiction inherent in these multiple objectives. As a result, the plan which emerges will be submitted to the Court and to all of the parties to this litigation before attempts at implementation are made.

Job assignment data have been included in each of the previous reports of the Special Master. The following data represent levels of employment in all employment units in the main stockade as of late December, 1976. As of December 31, 1976, 1135 inmates were incarcerated in the main stockade. Of these, 514 (45.3%) were white and 621 (54.7%) were black. The following data account for 1048 inmates in this unit of the institution.

Shop Cafeteria (Stockade) Cont'd. Total Captains Office Carpenter shop Job # Black # White % Black % White 11 0 13 7 0 0 0 4 Menu Board workers Coffee makers Set-up men Bread room workers Diet kitchen workers Pot & grill workers Pan room workers Dish room workers Garbage dock workers Creamery workers Cooks Porters Sugar server Maintenance Refrigeration Extra help Men in court (this date) Men in court (C.C.) Men in court (Hospital) Office Clerks Office porter Clothing Room Ice cream mixer Cafe table set up 1 Store room workers Officer cafe workers 4 Vegetable room workers 1 Bakery shop workers 4 Butcher shop workers 2 Silverware & cup man 1 Night cleaners '_3 106 0 1 0 1 0 1 3 1 3 0 4 8 5 1 1 1 3 0 0 0 2 0 1 1 0 2 1 5 4 8 0 0 70 50 100 50 100 75 50 88 79 100 0 62 58 0 0 0 57 100 100 100 33 100 50 0 100 0 80 17 50 20 100 100 60 50 0 50 0 25 50 12 21 0 100 38 42 100 100 100 43 0 0 0 67 0 50 100 0 100 20 83 50 80 0 , _0 40 Clerk runners 33 67 Carpenter Chair repair Carpenter helper Washroom porter Porter 25 0 50 100 100 50 75 100 50 0 _0 50 Total

Comparison of these data with racial percentages in the overall population indicates that while many employment units reflect reasonable racial balance, others (e. g., barbers, the garment shop, and maintenance) continue to reflect a high degree of racial imbalance.

As of December 31, 1976, 209 inmates were incarcerated in the honor dormitory. Of these, 79 (37.8%) were white and 130 (62.2%) were black. The following data account for 222 inmates in this unit of the institution. That the data account for more inmates than are indicated as living in the honor dormitory is explained by the fact that total population is reported to the Special Master at the end of each month. The population level at the honor dormitory declined steadily during the month of December (as supervisors reported employment totals in their shops) as virtually no new inmates were assigned to this unit during the month. Inmates were released from the honor dormitory in December, however, as the result of parole.

Again, these data, when compared to racial percentages in the honor dormitory population, indicate that substantial racial disparity continues to exist in a number of employment units. E. g., Coy’s tractor gang, the power plant, and Witzel’s gang.

CONCLUSIONS

Within 60 days after the confirmation of this report, the Special Master will submit a complete compliance plan to the Court and the parties for their review. Precisely worded, job related substantive criteria for job assignment, transfer, and removal will be completed by that time as well. The compliance plan will concentrate upon subsection (d) of Paragraph 8, as earlier reports of the Special Master have indicated that the institution is basically in compliance with subparagraphs (b) and (c).

PARAGRAPH 9

Compliance with respect to this paragraph of the Court's Order has been defined in terms of achievement of racial balance in each of the affected employment units which reflects the racial balance of the overall stockade population allowing for a deviation factor of ± 10%. In addition fair balance is required with respect to intrashop assignments in’ certain of the larger employment units such as the hospital, the laundry, and the cafeteria.

As of late December, 1976,. percentage by race in the affected employment units was as follows:

As of December 31, 1976, the percentage of black inmates in the stockade was 54.7 and the percentage of white inmates was 45.3. Taking into account the allowed 10% deviation factor, the following employment units are now in overall compliance with Paragraph 9 of the Court’s Order: porters, the plumbing shop, the carpenter shop, the commissary, the hospital, the stockade cafeteria, the laundry, and the custodial school. In addition, the Dental Clinic should be regarded as being in compliance in view of the small number of inmates employed in this unit. Of the five inmates working in the Dental Clinic, three are white and two are black. The Special Master has agreed with the position put forward by the institution that when apparent racial imbalance (measured in percentages) is the result of the assignment of one individual of a particular race to a very small employment unit, such imbalance is more illusory than real.

Employment units which are not in compliance are office workers, the electric shop, arid the trash run. The following data indicate the progress or lack of progress which has been made in these three employment units since the first report of the Special Master:

Thus, improvement with respect to office workers and the electric shop has been slight. On the other hand, racial imbalance in the trash run has increased steadily over the course of the past nine months. The figures reported for this employment unit, however, are somewhat misleading. Shortly before the Special Master called for the data reported above, two black inmates working in the trash run were paroled and a third left to become a full-time participant in the institution’s college program. These three openings have not been filled as of the date of this report.

Although overall employment figures in the stockade cafeteria, the hospital (infirmary), and the laundry indicate compliance within the 10% deviation factor which is allowed, significant imbalance remains with respect to certain job assignments within each of these employment units. For example, 11 (79%) dishroom workers in the cafeteria are black while three (21%) are white; seven (88%) pan room workers in that unit are black and one (12%) is white. Six (75%) porters in the infirmary are black while two (25%) are white; on the other hand, two (29%) of the clerks in that unit are black and five (71%) are white. In the laundry, ten (83%) shirt, pressers are black and two (17%) are white; in the same employment unit, four (80%) pullers are black and one (20%) is white.

CONCLUSIONS

Significant improvement has been made since the confirmation of the second report of the Special Master in bringing more of th