Full opinion text
OPINION BOWNES, District Judge. This civil rights action brought under 42 U.S.C. § 1983 concerns the living conditions and programs available at the New Hampshire State Prison (NHSP). It is brought by twelve named inmates on behalf of all persons who are or will be incarcerated as duly convicted felons at the prison, including, but not limited to, inmates on work release, in quarantine, punitive segregation, protective custody and on trusty status. The original defendants, sued in both their individual and official capacities, were the Warden, Deputy Warden, Prison Physician, and members of the Board of Trustees of New Hampshire State Prison. The case is proceeding against the present Warden, Prison Physician, and incumbent members of the Board in their official capacities only due to the dismissal of the case against them in their individual capacities. Authority is conferred upon the Warden and the Board of Trustees by NH RSA 622:2 and 622:5 respectively. Jurisdiction is conferred by 28 U.S.C. §§ 1343(3) and (4), 2201 and 2202. This court’s findings of fact and rulings of law are incorporated in this opinion as appropriate under F.R.Civ.P. 52. The suit was originally brought by plaintiff Laaman on August 29, 1975, challenging defendants’ emergency lockup of the prison. He claimed that the lockup and the subsequent prisonwide search or “shakedown” had been instituted without a basis in fact and in bad faith, that the search had been conducted in an illegal manner, that noncontraband personal property had been confiscated by defendants, and that he was being denied visits in violation of his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. The court appointed counsel, and the case mushroomed into a broad-based attack on the general living conditions at the prison. On June 15, 1976, plaintiffs’ motions to consolidate and amend the complaint were granted, and this case was certified as a class action pursuant to F.R.Civ.P. 23(a) and (b)(2). Henceforth, the case concerned not only the lockup, but the medical care, work, education and rehabilitation opportunities, visitation and mail privileges, and a general attack on the conditions of confinement at NHSP. The complaint also alleged harassment of the named plaintiffs. On December 30, 1976, defendants’ motion for dismissal and/or for summary judgment was granted in part, and the case went to trial February 22,1977, on the remaining allegations. In my ruling on defendants’ motion for dismissal and/or for summary judgment, several of plaintiffs’ contentions were dismissed under F.R.Civ.P. 12(b)(6). I ruled that the good faith or bad faith of prison officials in instituting a prisonwide lockup is outside the purview of the federal courts as the “discretion of prison authorities in what they deem to be an emergency” is “unreviewable,” and I dismissed all claims concerning the institution of the lockup. Hoitt v. Vitek, 497 F.2d 598, 600 (1st Cir. 1974). Plaintiffs’ allegations concerning the searches and seizures during the lockup survived defendants’ motions; however, except as to the question of whether or not the search itself was conducted in such a wanton manner as to be unreasonable in violation of plaintiffs’ rights under the Fourth and Fourteenth Amendments, plaintiffs’ claims are severed from the case to be referred to a master. United States v. Savage, 482 F.2d 1371 (9th Cir. 1973), cert. den., 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974); Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. den., 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); United States ex rel. Wolfish v. United States, 428 F.Supp. 333, 341-42 (S.D.N.Y.1977); Hodges v. Klein, 412 F.Supp. 896 (D.N.J.1976); Bijeol v. Benson, 404 F.Supp. 595 (S.D.Ind.1975). See Giampetruzzi v. Malcolm, 406 F.Supp. 836, 844-45 (S.D.N.Y.1975). Plaintiffs’ claim that a single visit per week constitutes a deprivation of their First Amendment right to freedom of association was dismissed for failure to state a cause of action. Craig v. Hocker, 405 F.Supp. 656, 674 (D.Nev.1975). See McCray v. Sullivan, 509 F.2d 1332,1334 (5th Cir.), cert. den., 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Walker v. Pate, 356 F.2d 502 (7th Cir.), cert. den., 384 U.S. 966, 86 S.Ct. 1598,16 L.Ed.2d 678 (1966); Pinkston v. Bensinger, 359 F.Supp. 95 (N.D.Ill.1973); Rowland v. Wolff, 336 F.Supp. 257 (D.Neb.1971). Finally, the court dismissed all plaintiffs’ allegations concerning actual medical treatment received by individual inmates on the basis that they stated no constitutional deprivation but only possible torts. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). THE PLAINTIFF CLASS As a class, the NHSP inmates are a remarkably homogeneous prison population. The approximately 280 inmates are almost exclusively white; they are young, and most are first time felony offenders serving sentences significantly shorter than the national average. The percentage of them convicted of violent crimes is less than the national average. As a group, they have poor work records, few skills and little education. Many have or have had severe drug and/or alcohol problems, and between 10% and 35% suffer from serious psychological impairments which require some form of treatment. The experts testified that, because of the homogeneity of the population and its rather obvious needs, and the small size of the prison, it should be a relatively easy institution to run. It should be noted that the racial strife which engulfs so many of the nation’s penitentiaries is simply not a factor here. Tes. Nagel, Fogel, Rundle, Brodsky; Ex. 13A at V-13 to V-15: Ex. 13B at V-6 to V-8; Ex. 15 at 65, 90, 98; Ex. 43 at 2, 24. THE PHYSICAL PLANT NHSP is located in the City of Concord, New Hampshire, thus making urban support services available. It is a typical 19th century, Auburn style institution: a walled, maximum security penitentiary dominated by a free standing, three-story block of back-to-back cells. It was built in 1878, and no major renovations were done until the 1940’s when a modified Auburn cell block was added, increasing the prison’s size from 248 to 314 single cell units. Ex. 13A at IV-2: Ex. 13B at IV-2. The Central Control Building is the hub of the prison with the Main Cell Block, the South Wing, the West Wing, and the Administration Building jutting off it. It houses the inmate reception and processing services, part of the inmate dining and kitchen areas, some administration offices, the visiting room, and the gym-chapel. The South Wing contains much of the inmate kitchen and dining area, classrooms, counselling rooms, and the Warden’s office, with the mental health facilities secluded on the third floor. The West Wing houses the medical care unit and the isolation cells. The ground level contains the water heating system for the prison, a nonfunctional boiler, and six isolation cells. A single rail catwalk around the perimeter of the boiler room is the major access route to the cells and is unsafe according to accepted minimum standards. Ex. 13A at IV-30: Ex. 13B at IV-28. Beyond the cells were the inmate showers which, since this litigation began, have been replaced with new facilities. On the second floor of the West Wing are the psychiatric isolation cells, a classroom, and storage space. The third floor houses the medical and dental facilities. The North Wing is the Main Cell Block. The structure is three stories high and contains a cell block of four layers of cells, free from the outside walls of the building. The ground floor cells open to the first floor, while the second, third, and fourth layers are connected by wooden tiers edged with steel mesh security screens. The front wall of each cell has a barred door and window with a pass slit at the sill. As there is no central lock system in the Main Cell Block, each cell must be individually locked and unlocked by a correctional officer. Stip. 133. Each cell measures 6' X 8' and contains a toilet bowl, sink, bed, and miscellaneous furniture. The lighting both inside and outside the cells is inadequate. The heat is uneven, and the inmates complain that some cells are excessively hot while others are too cold in both the winter and summer. The cell block is heated by wall radiation units located on the ground floor. An air circulation system has been installed since this litigation commenced, but the court noticed little improvement on its tour. The cramped and dingy space, the plumbing, heating and lighting problems make the cell block a difficult place in which to live. The situation is aggravated by the continuous din, broken windows, and the lack of screening. Sanitation is a continuing problem, but the parties noted a distinct improvement in the cleanliness of the cell block between late last year and the time of trial. The supplemental cell block, the Annex, is affixed to the' Main Cell Block at the north. It houses the trusties, protective custody inmates, and those in quarantine and punitive segregation. Conditions in the Annex for protective custody inmates were litigated in Nadeau v. Helgemoe, 423 F.Supp. 1250 (D.N.H.1976), and will not be extensively covered here. The Annex has three levels of steel plate, back-to-back, single cells with each level separated by a concrete floor. The cells measure 6' X 8' and are equipped with a combination toilet-lavatory unit, a cot or steel bunk and miscellaneous furniture. Single showers are being installed on each tier. The ventilation and lighting are inadequate. The ground floor of the Annex contains the prison library and some shower units. The Recreation Hall is a separate one-story building located west of the South Wing and separated from the main yard by the Hospital Wing. It is equipped with picnic tables, a pool table, Ping-Pong equipment, and one television set. The toilet facilities are exposed to view. In the words of defendants’ consultants: [l]ittle value for its assigned purpose can be found in this facility. There seems to have been so little effort and money expended to make this building a pleasant place that if given a choice, a number of prisoners would probably opt for the comfort of their own cells instead of spending their time here. Ex. 13A at IV-41: Ex. 13B at IV-39. The prison industries are housed in a separate building across the yard from the Main Cell Block. The building contains some recreational and storage space as well as the prison’s functioning boiler. The laundry service, the boiler, and the inmates’ weight lifting room are all located in the basement. The prison’s industrial shops and the canteen occupy the next two floors. The automotive school is in the North Yard outside the presently occupied area of the prison but within the perimeter of the outside walls. The building and equipment are more than adequate. A new building, which will be used for the repair and maintenance of State vehicles, is being constructed next to the auto school. This building will have sufficient space and facilities for its intended use. The main yard, which is used for recreation, totals just over two acres, excluding buildings, but only some of this area can actually be used for organized sports. The yard is large enough for softball games, but too small for either football or hardball. There is an adequate outdoor basketball court. Tes. Nagel; Stip. 123. SPECIFIC FACILITIES The kitchen, isolation cells, recreation facilities, medical facilities and visiting room are specific objects of the court’s scrutiny. Plaintiffs assert that the inadequacies in these areas not only contribute to the overall constitutional deficiency of NHSP, but are themselves so shockingly inadequate as to offend notions of common decency. 1. Food Service Defendants have recognized the serious state of disrepair of the kitchen, and major renovations and replacements are currently being undertaken. Such action was obviously necessary. Nevertheless, I must discuss the facilities as they existed at the end of the discovery period of the litigation, as this portion of the opinion is concerned with findings of fact. The food service facility is located on the ground floor of the South Wing. It includes a kitchen, bakery, dishwashing area, food storage space, a butcher shop and walk-in meat, dairy and bakery refrigerators and freezers. The area is old and in a state of serious disrepair. Neither the floor construction nor the drainage in the kitchen area are adequate for the maintenance of proper sanitation. Exposed overhead sewer lines run the length of the food preparation and service area, and potable water pipes cross the waste disposal lines creating a danger of sewage contamination of the food and water. Open sewer drains in the kitchen floor are unclean, and poor traps result in the accumulation of sewer gas. The toilet facilities are insufficiently separated from the food preparation area. These conditions create serious health hazards. Tes. Gordon, Oakman; Ex. 15 at 76; Stips. 151, 193. Utensils and kitchen equipment, including the hood of the range, are not properly cleaned, and much of the equipment is broken and dented. While some of the damage was a result of the 1975 Christmas Day Riot, I note that one study, predating the riot, found the equipment “antiquated, poorly organized and difficult to keep clean.” Ex. 15 at 76. Stip. 181; Ex. 21. The kitchen area is infested with rodents, cockroaches and other insects. Broken windows and inadequate screening augment the basic insect problem, and “fly sticks” with gross accumulations of dead flies hang in the kitchen. Ventilation is inadequate, and, in order to increase it, the personnel often keep a back door open which allows insects, rats and mice to enter the building. While some efforts have been made to combat the rodent infestation, in the words of defendants’ expert, “pest control cannot be effective until they control solid waste.” Tes. Oakman. Due to the lack of ventilation, volatilized grease from the stove spreads throughout the kitchen, accumulating with dirt and thus aggravating the basic hygiene problem in the food service area. Tes. Gordon, Oakman; Stip. 178. The refrigerators and freezers are dirty. The walls are constructed of rough, porous surfaces which are difficult to keep clean at best, but the experts testified that in neither November nor February was there any evidence of recent cleaning. To the contrary, at both times molds were growing on the walls. Food is not properly stored, and some is placed unwrapped and uncovered on the floors of the freezers and refrigerators. Food and nonfood items are mixed together on the shelves, and frozen food is improperly thawed before cooking. Tes. Oakman, Gordon. The butcher shop is unsanitary. The meat cutting board is old and cracked and, as a result impossible to clean properly; both plaintiffs’ and defendants’ experts agree that it must either be resurfaced or replaced. The shop is not properly cleaned, and pieces of unused meat and fat accumulate under the butcher table. Tes. Gordon, Oakman. See Ex. 21. Since defendants have begun major renovations of the kitchen area, food preparation has been moved to temporary facilities, which both plaintiffs and defendants recognize constitute a health hazard. The worst factor is the ventilation of the temporary kitchen which is “very inadequate, resulting in excessively hot and humid conditions.” Ex.- 39 at 2. On the court’s view, the temperature was over 90°. Furthermore, basic sanitation practices are still not being observed. There is exposed garbage and standing water, an open invitation to rodent and insect infestation. Tes. Gordon, Oakman. While plaintiffs and defendants differed on the maximum temperature attained by the mechanical dishwasher, both defendants’ figure of 172° and plaintiffs’ of 150° are below the acceptable minimum of 180° necessary for proper sterilization. Tes. Gordon, Oakman; Ex. 21. The inmates who work in the kitchen are not given physical examinations before or after their assignment to kitchen duty, and there seems to be no check at all on the health of those handling food. Neither cover clothes nor hairnets are utilized by those working with or near the food. Cigarette butts, soiled clothing, and boots seem to be an indigenous part of the kitchen. Tes. Wallace; Ex. 21; see Ex. 13A at III — 84: 13B at III — 70. The kitchen and dining areas were continuously dirty and unsanitary until July, 1976, when there were significant improvements. Stip. 177. However, according to defendants’ consultant, in October, 1976, “[sjanitation standards [are] so low that the institution was actually filthy in many areas . . . .” Ex. 12 at 2. I note that the dirty and unsanitary conditions have persisted for years despite repeated orders by prison administrators that the kitchen was to be scrubbed down daily. See generally Ex. 21; Ex. 53: SOP # 80. 2. The Isolation Cells There are three groups of types of isolation cells at the prison: the “West Wing” or “solitary confinement” cells; the “psychiatric” or “treatment” cells; and the “hospital” or “death” cell. All are located in the West Wing. The seven solitary confinement cells are in the basement of the West Wing, next to the defunct boiler and the institution’s water heater. Each 41/2' X 8 ' cell has a barred door and a solid steel door with an observation window measuring 2" X 4 ". Four of them are equipped with a toilet-sink combination affixed to the wall about two feet off the ground. The three dry cells are not used. There is no' hot water. No cell has any lighting or windows inside, and bare light bulbs illuminate the small hall in front of the cells. With no fresh air source and no way for air to circulate, there is no ventilation at all. Inmates placed in solitary confinement are stripped to their underwear or left naked if they wear none. No beds are provided and only a canvas mattress and, sometimes, a blanket are issued to the occupant. One inmate testified that he was stripped and denied both a blanket and a canvas mattress. He spent several nights tossing and turning on the the freezing concrete trying to keep warm. Others did not receive blankets. All the inmates complained of the temperature; it was either extremely hot or cold. When it was too hot, the heat “baked in the dirt on your feet,” and, when it was too cold, sleep was impossible. Temperature estimates varied from the 60 °’s to the 90 °’s. Tes. Vayens, Houman; see Stips. 68, 251. According to the experts, the single worst factor about the West Wing cells is their complete and total isolation. Five layers of steel and a considerable distance separate an occupant from the rest of the prison. No guard or any other person is posted in or near the area, and the cells are not checked regularly. Only the guard who brings the meals is a sure visitor, and were an inmate to scream for help at any other time, no one would hear. Adequate procedures require frequent visits by someone with some mental health training. Tes. Fogel. The inmates are given noting to do and, as a result, resort to various disruptive antics such as plugging the toilets and flooding the cells or abusing their bodies to attract attention or to help the time pass. In one inmate’s words, they were “treated like animals and acted like animals, yelling and screaming.” Tes. Houman. The reasons for which inmates were placed in solitary varied from punishment meted out after a disciplinary hearing to control of disruptive behavior. One inmate was put in solitary despite the fact that he was a known epileptic. There was an instance of an inmate isolated because of an attempted suicide, who smeared his wounds with his own excrement and then plugged the toilet. After a time, he and the cell were cleaned up, and he was returned to solitary. Tes. Houman. The combination of the total and devastating isolation, the inadequate lighting, ventilation, plumbing, size, and the uncontrollable temperatures make these cells “inhumane,” “close to the worst I’ve ever seen,” “totally unfit for human habitation,” and “the most destructive solitary unit I’ve ever seen.” Tes. Fogel, Nagel, Gordon, Rundle. The only comparison is a medieval dungeon. The almost unanimous opinion of the experts was that such stringent isolation is both a psychological and a physical horror with the potential of devastating psychic, emotional and physical damage. They recommended that the West Wing solitary cells be sealed off and never used again for any purpose at any time. The “death cell” is on the second floor of the West Wing. It was originally designed as an isolation unit for a condemned man just before his execution. Its name and original purpose is bound to have á deleterious psychological impact upon its occupant. It is a small dry cell with no amenities. It is poorly lit and ventilated. It is dirty and unsanitary, and there was testimony that it would be impossible to clean adequately. There is no furniture whatsoever in it, although some inmates said that when confined there they had been provided with a foam mattress. The cell is also far removed from either medical or custodial supervision; an inmate calling for help could not be heard. Tes. Fogel, Nagel, Gordon, Rundle. The “death cell” is sometimes used for disturbed inmates. At least one expert testified that he had seen a clearly psychotic inmate lying passively in his own filth. Tes. Rundle. The prison’s consulting psychiatrist said that several inmates placed in the “death cell” after suicide attempts had been able to get razor blades from other inmates while they were in isolation. Tes. Payson; Stip. 15. Finally, there are the “treatment” cells, also located on the second floor of the West Wing. They have been variously described as “steel tombs,” “box car cells,” or “bank vaults.” They have solid walls, no windows, and only a narrow opening for food. Of the five cells, one is padded, although inadequately, making it useless in terms of keeping an inmate from hurting himself. The rest are furnished and have adequate amenities. Like the other isolation units, the “treatment” cells are isolated from the rest of the prison and are insufficiently supervised. The “treatment” cells are presently being used to house some protective custody inmates who have asked to be placed there. The doors to the cells are unlocked so that the inmates are free to visit' with each other. The experts concurred that the use of isolation for disturbed inmates violates all modern treatment practice and is potentially psychologically destructive and physically dangerous. Disturbed persons need, at a minimum, to be observed and not to feel isolated and abandoned. Isolation is counterproductive in terms of treatment and dangerous even to a healthy person. The experts agreed that, even under the best of circumstances, it would be a hazardous practice to use any of these cells, and urged that they be closed permanently. 3. The Visiting Room The visiting room in the Central Control Building is small and uninviting. It is furnished with long wooden tables and unpadded wooden chairs. While there are no physical barriers to impede conversation or to prevent personal contact, the tables are wide enough to effectively circumscribe the inmates’ ability to touch their visitors or to speak with them privately. There is no separate private room for attorney-client consultations. Stips. 125, 126; see Stip. 496. 4. Gym Above the visiting room is an area of approximately 2,500 square feet, which is used alternatively as the prison’s only gymnasium, chapel, and theater. Portions of this limited space are taken up by a stage and a storage section for religious equipment. The ceiling is not acoustically designed for religious, theatrical or lecture use and does not muffle the noise produced during the athletic activities of the inmates. Consequently, the use of the gym has been restricted to three nights per week so as to minimize disturbance of visitations taking place directly below. Stips. 135, 136, 139. 5. Fire Danger and Emergency Exits One final and important aspect of the physical problems at NHSP is the lack of emergency exits, evacuation plan or fire prevention equipment. A dangerous situation is created by the dearth of equipment and emergency exits, the combustibility of portions of the prison, and the lack of staff training for emergency evacuation. To compound the situation, inmates are allowed to purchase and retain lighter fluid. This not only presents a danger to individual inmates and staff, but could enable prisoners to “ignite a blaze of major proportions in numerous vulnerable areas about the institution.” Ex. 13A & B at III — 42. A serious fire hazard in the cell block was noted by defendants’ consultant. The age of the structure, numerous coats of paint on the walls, wooden catwalks and inmate possession of lighter fluid all serve to contribute to a hazardous fire situation. In the event of a serious fire, the requirement to individually unlock each cell door with a key could easily result in a loss of life disaster of most serious proportions. Ex. 13A & B III — 13. The ceiling, roof, and catwalks are all constructed, at least in part, with timber. The building is sprinkled. There are exits only at the north and south ends of the cell block, and those lead into other parts of the prison. Emphasizing the heavy reliance on “the actions of the prison officers to facilitate evacuation,” defendants’ consultant concluded that “the personal safety of the inmates is all but ignored." Ex. 13A at III— 55 — 56: Ex. 13B at III-53-54. See Ex. 13A at III — 13, IV-33 to IV-36, IV-55 to IV- 56: Ex. 13B at III-13, IV-31 to IV-34, IV-53 to IV-54. The Central Control Building is sprinkled throughout, but there is no emergency exit to the exterior except through keyed doors or through barred windows to an adjacent roof. Most significantly, the only exit from the gym-chapel on the third floor is limited to a narrow wooden stairway. Ex. 13A at IV-20 to IV-23: Ex. 13B at IV-18 to IV-21. The West Wing does not have a sprinkler system. Exit from the third floor is only possible by the single stairway to the second level; there is no emergency exit. The stairway poses special problems for non-ambulatory patients because of the difficulty of negotiating the stairs with a stretcher; the situation would be dangerously aggravated in case of an emergency evacuation. There are only secured doors to the exterior from the second floor. Ex. 13A at IV-28 to IV-34: Ex. 13B at IV-26 to IV-34. While the South Wing is equipped with sprinklers, the building itself is partially constructed of flammable materials, and combustibles are stored in the attic which has no fire or smoke detectors. Access to the third floor is solely by a narrow wooden staircase, and there are no emergency exits from either the second or third floors. Ex. 13A at IV-24 to IV-28: Ex. 13B at IV-22 to IV-26. The Annex does not have a sprinkler system, and the fire fighting equipment is behind locked bars; however, the building is not combustible. There are exits to the main prison yard, the front yard and the Main Cell Block, all from the bottom level. Ex. 13A at IV-36 to IV-38: Ex. 13B at IV-34 to IV-36. The Main Entrance Building is combustible but contains sprinklers. The only door to the exterior remains locked so that emergency exit frotn this building would have to be through an adjacent part of the prison. Ex. 13A at IV-17 toIV-19: Ex. 13B at IV-15 to IV-17. The Administration Building is not sprinkled, has no fire alarm system and is combustible. The emergency exits are adequate except that some are kept locked. Ex. 13A at IV-11 to IV — 16: Ex. 13B at IV-9 to IV-14. The Recreation Building is combustible, is not sprinkled and access to it is by an awkward sliding door. While the Industries Building has free egress, the stairways from the upper floors are remote and there is only one from the fourth floor. In some cases, they are built of combustible material, and many flammable items are stored in the Industries Building. Ex. 13A at IV-56: Ex. 13B at IV-54. On my view, I noted that there are some fire extinguishers at NHSP, but that many of them have not been checked for some time, one as long ago as 1972. The distribution of extinguishers seemed to have little to do with the location of high risk areas in terms of fire hazard as described by defendants’ consultant or as observed by this court. Furthermore, some of the extinguishers are contained in locked areas, inaccessible to anyone without a key, while others are kept within easy reach of both inmates and officials. While the staff are presently receiving some classroom training in emergency evacuation, in February, plaintiffs’ experts found the staff generally unaware of the existence of any plans for evacuation. There had been no practice training for the management of large-scale crises at NHSP and, while, the employees are now being taught how to deal with a critical situation, no written plan has been distributed to the inmates. Tes. Ash. In summary, the physical plant is antiquated and dilapidated. It is not maintained properly, and its facilities are inappropriately utilized. The combined impact of unplanned development and expansion of the institution, shifting penological philosophies and the concomitant changes in the institution’s programs, the lack of upkeep and ineffective use of what the plant can offer, results in a prison outdated, misused and dangerous to the lives of both the keepers and the kept. THE DAILY ROUTINE The day begins at 5:00 o’clock for the inmates who prepare breakfast. The electric power goes on at 6:00. The farm trusties eat their breakfast before the general population who eats at 7:00. Inmates assigned jobs report to the shops at 7:30 and work until an early lunch is served at 11:20. They are locked into their cells at 11:45 for the noontime head count and report back to work at 1:00 P.M. Yard time begins at 3:00. The evening meal is served at 4:20, and the evening head count takes place at 5:00, at which time mail and medications are delivered. The inmates again have yard time until 8:00 o’clock when evening activities begin, and some of the Annex population is released into the yard. The final head count is at 9:30 P.M. In 1977, the total cell time for the general population is between twelve and thirteen hours per day as compared to 1965 when the inmates spent between fifteen and sixteen hours a day in their cells. Between 1965 and 1977, the inmates’ yard time increased from approximately one hour daily to just over four hours per day. Ex. 49; Ex. 52; Ex. 53, SOP # # 39, 57, 68. QUARANTINE An inmate’s first contact with NHSP is during “quarantine.” While “quarantine” is really a medical term, here it denotes a period of mutual orientation between the new inmate and the institution. Defendants describe the quarantine procedure at NHSP as follows. The doctor and the dentist see every new inmate within seventy-two hours of his arrival. The doctor takes a medical history of the patient, does a routine physical examination, takes a blood test, and does other laboratory procedures if warranted. The examination normally takes between fifteen and thirty minutes. The Treatment Division of the prison conducts an initial classification interview, a complete psychological evaluation and a social work-up. The information thus garnered, presentence material and the inmate’s criminal record are submitted to the Work Board Classification Team which assigns a security classification, a treatment designation and a job to the inmate. Pictures and fingerprints are taken during quarantine. The inmate is given the prison’s written rules and regulations which are orally explained to him within a week of his arrival. Ex. 31; Tex. Clarke, Piela. The reality of the quarantine period is quite different from its formal outline. While it is not supposed to last for more than fourteen days, some inmates have been held in quarantine up to a month, and one expert testified that the quarantine cells looked as if they had been lived in for years. Because of some administrative mix-ups and difficulties, some prisoners were in quarantine for an unnecessarily long time, but defendants aver that the situation is now improved. Tes. Fogel, Clarke. From plaintiffs’ eyes, quarantine at NHSP is “dead time.” According to the inmates, they were let out of their cells only for meals and a shower once a week, although one inmate testified that he was allowed to exercise one hour a day. Inmates were sleeping when plaintiffs’ expert visited at approximately 10:00 o’clock in the morning. Tes. Fogel, Nagel, Jacques, Roy, Meade. Medical attention during quarantine is scant at best. Some inmates said that they never saw a medical staff member the entire time in quarantine, and only one said that he had seen the doctor within the prescribed seventy-two hour period. Those who did see the doctor uniformly testified to the inadequacy of the medical attention they received. One inmate was given a tine test for tuberculosis, but there was no follow-up. In another examination, the doctor merely looked at the inmate’s mouth and fingers and dismissed him. In some cases, the doctor neither asked any questions of the inmate nor evinced any interest in medical problems or history when the information was volunteered. In one case, the inmate stated that the doctor never asked him anything about stomach problems or diet, yet put into his medical record that no special diet was necessary. Another inmate testified that he had been going through withdrawal from a prescribed drug when he arrived at the prison but was unable to see the doctor even though he tried. Not only was there no routine physical examination, but he was unable to renew his prescription or get other relief for his withdrawal symptoms. The doctor’s notes of these physical exams are very brief. Ex. 40H; Ex. 3; Tes. Fogel, Meade, Roy, Jacques, Wallace, Laaman. Of the inmates who testified, most had been visited and interviewed by personnel from the Mental Health Division, three had been tested, and one saw the psychiatrist for four to five minutes. One saw a social worker approximately once a week, and another inmate voluntarily began counseling with the Mental Health staff within one week of his arrival at NHSP. Tes. Farnsworth, Meade, Roy, Jacques. Only two received a copy of any rules and regulations; one received them on his first trip through the prison in 1973, but did not get any his second time around in 1975, and the other got an old set of rules but stated that “it didn’t seem like anyone paid any attention.” In any case, it makes little difference whether or not the inmates get the rules because the staff neither receives nor is familiar with them. No inmate received a tour of the library, a security or custody orientation or even any explanation of what constitutes acceptable or unacceptable conduct or of how the canteen operates. One inmate saw the chaplain, but only because the chaplain was in the Annex visiting someone else. All inmates were photographed and fingerprinted. Tes. Farnsworth, Meade, Roy, Jacques, Fogel. The experts explained the purpose and effect of a quarantine period. None of them disagreed with the need for an initial period of isolation. It allows a person entering a prison, who naturally feels a great deal of anxiety, to ask questions, talk about his fears, learn the ropes, and adjust to institutional life. The isolation period also allows the various prison services to evaluate the new inmate, to plan how best to integrate him into the prison, to “soft sell” their programs, and to inculcate him with some of the things he will need to know to acclimate to life in prison. Thus, the differing needs of the new inmate and the institution can mutually accommodate each other during the quarantine period. Tes. Na-gel, Fogel. In other prisons quarantine programs, new inmates are given extensive diagnostic and medical tests and complete classification work-ups. They are dressed in different clothing for easy identification when they do mingle with the general population. They get written rules and regulations which are then explained to them. Tes. Fogel. MEDICAL FACILITIES AND TREATMENT The function of the medical services and facilities at NHSP has never been defined, and the result is confusion and misunderstanding as to their basic purpose. The facilities and staff are inadequate as either a prison hospital rendering extensive medical care or as a temporary infirmary designed to meet only routine and emergency medical needs. The medical services are on the third floor of the West Wing. They include a dentist’s operating and treatment room, dental X-ray room and laboratory, a private bedroom, one secure six-bed ward, a toilet, a drug storage room, a food preparation room, a treatment room, and a doctor’s office and lavatory. There is also a small room that was once used for medical X-rays, but is now used for medical storage. The “space allocated for medical treatment is confined [and] congested.” Ex. 13A at IV-32: Ex. 13B at IV-30; Stip. 1. The infirmary has not been licensed by the New Hampshire Department of Public Health since January, 1968. Stip. 26. As a temporary way station to outside medical attention, the medical facilities are poorly located. A transfer out of NHSP is necessary for any specialized or emergency care or treatment, and approximately 200-250 such transfers occur per year. To get a man from the infirmary to an ambulance or any other vehicle is cumbersome at best; he must be brought from the third floor of the West Wing, across the second floor of the Central Building, to the first floor of the Main Entrance. This odyssey is further burdened by the difficulty with which the West Wing stairs are negotiated with a stretcher. Stips. 80, 82; Ex. 13A at IV-32: Ex. 13B at IV-30; Tes. Prout. As a hospital unit, the infirmary is clearly inadequate; it barely has the capacity to do routine medical examinations and limited emergency treatment. Stip. 3. Many of the constraints are dictated by the physical location, layout and space allocated to it. Bed space is limited, but there were no complaints that any inmate had been denied a bed when needed. Unless the situation requires a medical transfer, prisoners are usually treated in their cells, thus obviating a major need for the ward. Furthermore, protective custody inmates are frequently assigned bed space in the infirmary. While this practice was condemned by defendants’ experts as “a clear misuse of medical facilities and staff,” Ex. 12 at 25, it shows that a shortage of infirmary bed space does not exist at NHSP at the present time. The infirmary itself is airy and pleasant, but there are no dividers between the six beds so that there is no privacy for the patients. There are no pillows. The linen supply is scanty and the linen storage room is not satisfactory. Patients have access to the linen without regard to the degree of their contagion. Stip. 9; Ex. 14 at 15; Ex. 21; Tes. Gordon, Novak. The position of the infirmary in relation to the nurse’s station was criticized by almost all the experts and defendants’ visiting consultants. The beds cannot be seen from the station, and there is one bed that is not visible from the door of the infirmary. The medical facilities are equipped with neither an intercom nor a call system. On my view, the door to the ward was locked, even though there was a patient inside. A person sick enough to be in an infirmary needs almost constant monitoring and care, which is practically impossible under the present conditions and procedures. Ex. 13A at III — 101: Ex. 13B at III — 86; Tes. Prout, Novak, Gordon. The examination or treatment room is, at 80 square feet, “too small for a physician to render care such as suturing lacerations and applying casts. This room appears to be equipped to render first aid and very limited medical procedures.” Ex. 21. It is less than the minimum recommendation for a medical examination room. It has been suggested that the storage room, which is slightly larger, be converted into a treatment room. Ex. 21; Tes. Payson, Gordon. The infirmary kitchen is small, cluttered, “old, unsanitary, and under-equipped.” Ex. 15 at 77. Defendants have recognized that it is less than satisfactory and are not using it as a kitchen at this time. There is also no secure place for records, and pharmaceutical supplies are not securely kept. There are no X-ray or laboratory facilities at all and little space for storage. Ex. 21; Ex. 13A at III — 100: Ex. 13B at III-85 to HI-86; Tes. Gordon, Oakman, Payson. The medical staff consists of one full-time dentist, one part-time psychiatrist, one full-time physician and three full-time nurses. The physician is over seventy-one years of age. There are no male nurses on the staff. A nurse is present at the institution between 7:00 A.M. and 11:00 P.M. seven days a week, and one is “on call” during the night shift. With this staff, no provision can be made, for vacations or sick leave; if a nurse is out sick, the prison is without a nurse for the duration of her illness. With the nighttime medical personnel “on call,” the prison guards must determine whether or not an inmate needs medical attention. If so, he calls the nurse on the telephone and she decides, on the basis of what she is told by the officer, whether or not to come to the prison. The doctor has not conducted any staff training sessions, and the, only training the prison personnel receive now is the training courses which include some first aid. Tes. Piela, Clarke, Dewey; Stips. 13, 24, 33; Ex. 53: SOP # 8. While the daily caseload of the doctor is not overly burdensome, his total workload is overwhelming. He sees between fifteen and thirty prisoners a day, but he is on call twenty-four hours a day, seven days a week. He has been called during off-hours between three and thirty times a month for the past two years. If the doctor does not adequately respond to the medical needs of the inmates, it is, in part, because of the workload. Stips. 19, 30; Tes. Payson. The almost unanimous opinion was that, with the exception of the dental care, the medical staff is insufficient to meet the needs of the prison. At a minimum, the institution should have round the clock nursing which requires five full-time nurses. The doctor, himself, has requested additional staff of two more nurses and two medics in order to provide more counseling and follow-up and to see more patients. Stip. 16; Ex. 13A at III-102: Ex. 13B at III — 87; Ex. 15 at 78; Ex. 21; Ex. 35 at 19; Tes. Prout, Payson, Clarke, Novak. The dental office is, in contrast to the rest of the medical facilities, outstanding, and the services offered the inmates are not only satisfactory but exemplary. The dentist is at the prison five days a week and is on call twenty-four hours a day. There is sufficient space for the three dental chairs, and there is a separate office for X-ray and lab work. The only complaints are the location of the facility and the lack of an office for the dentist. Overall, the dental program is excellent. Stip. 10; Ex. 13A at III — 102 to III — 103: Ex. 13B at III-88. A visiting psychiatrist and a few other medical consultants aid the regular staff. There was considerable evidence of friction between them and the prison physician, and, in the case of a disagreement as to medication, the prison doctor’s decision prevails. Stips. 48, 49, 88, 96; Tes. Prout; Ex. 40G; Ex. 51. The back-up availability of the Concord Hospital would satisfy the prison’s needs for medical expertise if the prison physician could make use of its facilities as needed. However, plaintiffs contend that, given the difficulty of transferring inmates out of the prison, the medical services there are inadequate without medical consultants specializing in orthopedics, neurology, neurosurgery and cardiology. Plaintiffs’ expert testified that the prison physician is presently unable to respond to some inmates, not only because of his workload, but because he is not an expert himself and does not have experts freely available to him. Tes. Payson. Medical transfer of prisoners to an outside medical facility is severely impeded by NH RSA 623:1 as amended in 1975. Any person confined in a county jail, house of correction, state prison, or other place of detention may, under such precautions and for such time and purpose as any justice of the superior court or the governor may order, be temporarily taken by some regular or specially authorized officer from such place of detention because of his own extremely critical illness, or the imminently approaching death, or the funeral of a member of his immediate family, or for such imperative and extraordinary purpose as shall be deemed justifiable and humane by said justice, or the governor, to whom application is made. Whenever any such person so confined by order of a justice of the superior court shall be transferred to the New Hampshire hospital except on order of the justice of the superior court who originally ordered his commitment, the administrator of the institution from which he shall be transferred shall give written notice of such transfer to the justice who originally ordered such commitment within five days of such transfer, and said administrator shall likewise give notice to such justice upon the return of such person from New Hampshire hospital. Whenever such transfer is ordered except by the presiding justice for the county from which commitment was originally ordered, the presiding justice for that county shall likewise be notified of any transfer to or from the New Hampshire hospital. Authority is usually requested from the Governor of the State and has often taken several days to obtain. However, emergency transfers can and do take place quickly, and, as noted above, over two hundred such transfers occurred last year. Defendants agree that psychotic inmates must be transferred to the state mental hospital because the prison simply does not have the staff to properly deal with them. The experts unanimously found this statute cumbersome and inimicable to the rendering of adequate medical care. Tes. Rundle, Novak, Clarke, Avery; Ex. 13A at III — 104: Ex. 13B at III — 89; Ex. 14 at 15; Ex. 40B & G; Ex. 51. The transfer situation is aggravated by the lack of complete medical records at the prison. Specifically, as of June 29, 1976: Although orders for medication and brief M.D. notes are on file in the inmate’s folder, there are no recordings of the following: 1. Medical history, 2. Physical exam, 3. Progress notes indicating reasons for need for medications and progress or regression of the health status of the inmate, 4. Records of administration of medications as ordered by the M.D., 5. Copies of transfer information sent to the Concord Hospital when an inmate is sent to that facility for surgery, and 6. Records of care rendered in the infirmary with exception of brief note on M.D. order sheet. We were informed that as of two months ago all inmates are seen by the physician and the dentist within 72 hours after admission. Although it appears that this is so, documentation of this activity is scanty in the infirmary. The dentist keeps his own records which we did not view. There are approximately 300 inmates and approximately lh are receiving medications. Ex. 21. According to plaintiffs’ experts, the records they examined were deficient in the following respects: no basis for medical care was noted; there were no written plans for future treatment; at times, the physician used only an order sheet; he sometimes made judgmental comments in his notes or otherwise displayed a lack of objectivity; finally, the notes contained references to events that had no bearing on the patient’s physical or mental condition. Defendants’ expert said that the records were disorganized, without sufficient detail and, in general, less than satisfactory; however, he noted that this is a common problem not just encountered in prisons. The court’s perusal of the mental health files submitted as an exhibit confirms many of the above observations. Ex. 51; Tes. Pay-son, Prout, Novak. To support the experts’ testimony, plaintiffs submitted a summary of the medical records of 370 inmates at NHSP. According to plaintiffs, of the 370 records studied, approximately 75% contained no notation of a physical examination, 86% contained no medical history and only 9% contained complete notes on a medical history, a physical examination and a mental health diagnosis. The files of the great majority of inmates would be, therefore, relatively useless to any physician not personally familiar with the patient. Ex. 5. The experts testified that accurate and complete medical records are essential for adequate health care because they form the basis for later diagnosis and treatment and for judgments concerning the quality of the services received. As such, they can protect the prison and its staff from law suits such as this which challenge the adequacy of the medical treatment rendered. Tes. Payson, Prout. The access the prisoners have to the medical staff and services is by the “sick slip system.” Sick slips are to be handed to the Duty Officer in the Cell Block at 8:00 a. m. daily by the men going to work. ****** The Major’s Aide will compile a list in duplicate of all those wishing to see the Doctor or the Dentist, attach the slips to this list, and send same to the Infirmary. The Doctor and Dentist will review the list, making additions or deletions based on their knowledge of the man making the medical request. • After the Medical Department reviews the list, one copy is to be sent to the Control Room so that those on the list may be called to the Infirmary. Ex. 53: SOP # 35. The obvious defect in this procedure is that it places several people in positions in which they can exercise discretion as to whether or not to forward the complaint, and the inmates claim that many of their requests remain unanswered. One inmate said that he had been told by the medical staff to return for a checkup, but was never called in despite ten request slips in fourteen days. Another testified that he vomited blood before he was able to get medical attention for his ulcer. Tes. Avery, Boston. This court also takes into account the testimony heard and the findings made concerning the access of protective custody inmates at NHSP to medical care. The very fact that they believe [that they must cut themselves to get medical attention] . . . and the fact that they believe that they must resort to self-help remedies indicates a lack of confidence so serious that would seem to this court to be antithetical to any kind of medical treatment. Nadeau, supra, 423 F.Supp. at 1259. While nearly all the inmates testified that they had had difficulties in getting medical attention, the doctor says that he turns down only one or two prisoner requests for medical attention per day. However, he has received complaints from inmates that their sick slips were thrown away or ignored by the custodial staff. Stips. 31, 36. From the evidence, it is obvious that all the sick slips put into the system do not reach the medical personnel. The experts testified uniformly that the sick slip system is not a good method of access to health care services precisely because it allows essentially medical decisions to be made by custodial officers. It also places nonmedical staff members in a very powerful position vis-a-vis the inmates because the availability of medical attention is so crucial to a person’s physical and mental well-being, whether or not medical treatment is, in fact, necessary. Regardless of the validity of the decisions not to see inmates, the lack of response leads them to believe that irrational and arbitrary determinations are being made about their medical needs, and the blame will often come to rest, whether or not true, upon the guards. The system violates the confidentiality that is normally associated with communications between a doctor and a patient. The public nature of the sick slip system may inhibit inmates from revealing the true nature of their ailments. They may be embarrassed or they may wish to avoid the possibility of criminal liability. Finally, because custodians make informal decisions concerning health care, there is often no record at NHSP of an individual’s request for medical attention, when and for what reason or what the disposition was. Tes. Prout, Pay-son, Rundle, Novak. Defendants have recognized the inadequacies of the sick slip system and have proposed new procedures. Ex. 38. Defendants’ method of distributing medication is hazardous to the health and well-being of the inmates. Approximately 50% of the inmates receive medication, and, until the end of 1976, all medication except injections were delivered by guards who were entirely untrained in medical matters. There is no log of the medications given out. The lack of any record of the distribution makes it impossible to determine which inmate received what medication so that, if a mistake were made, there would be no information to help determine the necessary course of action. Distribution of the medications by untrained custodial officers, of course, increases the possibilities of such errors. Furthermore, delivery of the medicines by guards mixes the custodial and medical roles which should be kept separate. Tes. Prout, Novak; Ex. 21. The experts and consultants unanimously condemned this practice, and it has mostly ceased. Medications are distributed by nurses to the inmates who must now come to the distribution room to receive it. However, nighttime medications are still delivered by the guards, as are all medications to inmates in the Annex. Tes. Piela. The prison doctor spends approximately $1,000 per year of his personal income purchasing medication for the prisoners because the budget is inadequate. Plaintiffs complain that this results in inmates receiving only the least expensive drugs, but there was no evidence to support this contention. The supply of drugs is insufficient. There was testimony that large amounts of tranquillizers are prescribed at the prison, but less in February, 1977, than in November, 1976. There is no prison pharmacy, and medications are purchased locally. Tes. Clarke; Stip. 103; Ex. 21. A prevalent health problem with many prisoners is peptic ulcers, and the common method of treatment is by special diet. Of the approximately one hundred “handicaps” identified by plaintiffs through the doctor’s notes, 16% were labeled as ulcers of one sort or another, and an additional 13% were identified as obesity, hypertension or diabetes, all conditions requiring dietary care. As of late 1976, the doctor had issued between forty and fifty special diet cards, which amounts to between 15% and 20% of the prison population. Stip. 70; Ex. 5; Tes. Prout, Payson. The evidence is clear that the diet line cards are useless because no special food is prepared for those who need it. There is no dietician at the prison. An inmate who works in the kitchen testified that no special food is prepared unless a particularly hard to digest meal is served to the general population, and then the special diet consists of hamburger. Another inmate testified that he had been eating nothing but plain cereal for the past three weeks because he had been experiencing severe stomach pains and vomiting blood. Other inmates testified to similar, although less dramatic, incidents. The visiting psychiatrist complained that no low fat diet is available for inmates with circulatory diseases or gall bladder problems. Tes. Wallace, Avery, Jacques, Payson; but see Ex. 13A at III — 84: Ex. 13B at III — 70. Permanent damage can occur from a failure to treat peptic ulcers: sometimes even surgery may be required to remove the scar tissue resulting from an untreated ulcer. MENTAL HEALTH SERVICES The location of the mental health unit on the top floor of the South Wing effectively precludes contact with any inmates except those motivated and directed to seeking out the services offered there. The functional isolation of the unit is magnified by the fact that the only access to it is via a stairway so narrow that it is difficult for two people to pass. Casual or spontaneous encounters are unlikely because the contact the mental health personnel have with the inmates is “akin to a mail-order operation.” Ex. 13A at III — 100: Ex. 13B at III-85. As of the end of 1976, the staff of the mental health unit consisted of two counselors, one psychologist, and one psychiatric social worker. As of February, 1977, one of the three counselors had been assigned as Supervisor of Work Release and another was Acting Director of the, unit; only one is working solely as a full-time counselor, although each is supposed to carry a full caseload. The visiting psychiatrist and a sociologist are consultants to the unit. There has been a long-term vacancy in the position of Staff Director. In addition, the division’s Administrative Assistant has been assigned to the Deputy Warden, and the Manpower Grant which financed the clerk-typist ended in March. At trial, the witnesses did not know whether or not it would be renewed. Two other job positions are vacant, and no one can be hired due to the general governmental job freeze in New Hampshire. At its apex in 1972, the mental health division, then known as the Disturbed Offenders Program, had five full-time and four part-time counselors and a director. Tes. Ingham, Clarke; Stips. 87, 88, 89, 275, 276; Ex. 12 at 33. The staff is made up of persons with less than full academic credentials for their positions. The full-time counselor has a Bachelor’s and a Master’s degree in history and has taken some courses in sociology. He does not wish to further his education because of his job’s uncertainty due to the funding problems and because of the expense involved. None of the staff has any correctional mental health training. Tes. Brodsky, Ingham. The purpose of the division has changed over the years and is again in the process of shifting. In 1972, as the federally financed Disturbed Offenders Program, it was designed to identify and treat inmates who were psychologically troubled or who presented severe management problems. Over the years, the emphasis shifted from identification to crisis intervention. In 1975, New Hampshire assumed financial responsibility for the program. Today, the Director of Treatment has titled the program the Diagnostic and Counseling Service Division and is building up its diagnostic capabilities. A revised BETA intelligence test, the MMPI personality test and a “sentence completion” personality diagnostic test are supposed to be administered to all incoming inmates. In September, 1976, the division started taking notes at the interviews and making formal social work profiles and case summaries. The psychologist and social workers are spending proportionately more time now diagnosing than treating. As of October, 1976, the staff “interpreted] their mission to be solely counseling of inmate volunteers,” Ex. 12 at 33, but now they are spending less than 40% of their time on treatment and therapy and up to 40% in diagnostic services. Tes. Clarke, Ingham; Ex. 15 at 86-89. However, “counseling” must be broadly interpreted. Even before the recent shift to diagnosis, the full-time staff spent less than 40% of their time actually in therapy sessions with clients and about the same coping with “crisis” situations and acting as in-house functionaries. Crises occur “with a certain frequency” and most are institutionally induced. They include problems with access to medical trea