Taylor v. Perini (446 F. Supp. 1184, 1977)

MEMORANDUM AND ORDER

DON J. YOUNG, District Judge.

This action came to be heard upon the Fourth Report of the Special Master on the Defendants’ State of Compliance with the Court’s order of September 12, 1972. The parties have filed responses making no objections to the report, although the defendants have requested leave to reserve the right to make objections to the report at a future time. The Court being fully advised in the premises, it is ordered that the report is in all respects confirmed. Said report is attached hereto as Appendix A, incorporated herein by reference, and made a part hereof as fully for all intents and purposes as if set forth at length herein. The Court further finds and orders as follows:

(1) The Fourth Report on the Defendants’ State of Compliance makes it clear that the Department’s Administrative Regulation 5120-9-19 fails to conform in certain important respects with the requirements imposed upon the defendants by paragraph 4 of the Court’s order of September 12, 1972. The objectionable features of the Administrative Regulation were pointed out by the Special Master in his third report. Taylor v. Perini, 431 F.Supp. 566, 578-579 (N.D.Ohio 1977). It is equally clear that the Departmental Publications Screening Committee, in including certain publications on its “not to be permitted” list, has failed to abide by the provisions of Administrative Regulation 5120-9-19 establishing criteria which have been approved by the Court for the exclusion of printed materials from the prison.

The defendants are therefore ENJOINED FROM:

(1) Applying to Marion Correctional Institution any portion of Administrative Regulation 5120-9-19 which is inconsistent with paragraph 4 of the Court’s order of September 12, 1972, and

(2) Relying upon the “not to be permitted” list prepared by the Department’s Publications Screening Committee in determining the admissibility of printed material received by inmates at Marion Correctional Institution.

(2) The Court is gratified to learn that the defendants have employed Personnel Decisions Research Institute to conduct a longitudinal empirical validation study of the Marion Correctional Office Psychological Inventory (M.C.O.P.I.) developed for use at Marion Correctional Institution. One effect of successful validation at other institutions will be to enhance the reliability of the results of the M.C.O.P.I. at Marion Correctional Institution. Thus the longitudinal empirical validation study is related directly to compliance with paragraph 10(d) of the Court’s order of September 12, 1972. It is clear that the validity study requires that applicants at correctional institutions other than Marion Correctional Institution be required to take the M.C.O.P.I. and that the results of these tests not be utilized for the purpose of selecting applicants for employment. It is obvious as well that there is no basis at the present time to assume the validity of the M.C.O.P.I. for use in selecting correctional officers at any institution other than Marion Correctional Institution where it was developed.

The defendants are therefore ENJOINED FROM:

(1) Seeking to obtain from Personnel Decisions Research Institute or from any other source during the course of the longitudinal empirical validation study any score earned on the M.C.O. P.I. by an applicant for employment at any correctional institution other than Marion Correctional Institution, and

(2) Relying in any way upon a score earned on the M.C.O.P.I. for making a determination concerning employment at any correctional institution other than Marion Correctional Institution until such time as the longitudinal empirical validation study has been completed.

(3) The plaintiffs have requested the Court to direct the Special Master to explore the feasibility of modification of Administrative Regulation 826 so as to permit inmates to possess and use recording devices within the prison. Former Administrative Regulation 826, to which plaintiffs refer, is now designated Administrative Regulation 5120-9-32. The request of the plaintiffs is hereby granted.

(4) The defendants have requested leave to make formal and specific objections to the Special Master’s fourth report at a future time. The request of the defendants for leave until further order within which to file objections is hereby granted.

IT IS SO ORDERED.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

J. B. TAYLOR & GEORGE BENNETT, et al. Plaintiffs, v. E. P. PERINI, Superintendent, Marion Correctional Institution Defendant

CIVIL NO. C69-275

FOURTH REPORT OF THE SPECIAL MASTER ON THE DEFENDANTS’ STATE OF COMPLIANCE

Submitted by Vincent M. Nathan, Special Master.

INTRODUCTION

This report is the fourth submitted by the Special Master in this case. It describes the defendants’ state of compliance as of November 14, 1977.

Approximately eight months have passed since the Court’s adoption of the Special Master’s third report. During this period, Superintendent Perini and his staff as well as Director George Denton and his staff have continued to cooperate with the Special Master in the development and implementation of plans of compliance. As a result, substantial progress has been made in many areas.

During the period covered by this report the Special Master has received assistance from Mr. Fraser McAlpine, a third year law student at The University of Toledo. Mr. McAlpine participated in every phase of the development and implementation of the plans described in this report, assisted in the task of monitoring compliance plans already effected, and contributed directly to the preparation of this document.

The report which follows begins with an analysis of the new inmate grievance procedure and the inmate councils which are the major mechanisms which have been developed in order to bring about compliance with the prohibitory paragraphs of the Court’s order of September 12, 1972. It then proceeds to a discussion of the defendants’ state of compliance with the provisions of the several mandatory paragraphs of that order. The report concludes with a description of the posture of this litigation as perceived by the Special Master on the basis of nearly two years of involvement with Taylor v. Perini.

THE GRIEVANCE PROCEDURE

On December 26,1976, the Department of Rehabilitation and Correction issued Administrative Regulations 5120-9-29, 5120-9-30, and 5120-9-31, thereby instituting a new inmate grievance system in all of Ohio’s adult correctional institutions. Taylor v. Perini, 431 F.Supp. 566, 571 (N.D.Ohio 1977). Between January 1, 1977 and August 31, 1977, a total of 1,582 grievances were processed by the eight Inspectors of Institutional Services who serve as institutional grievance officers under the new system.

Less than one month after the implementation of the new grievance procedure, the Director of the Department of Rehabilitation and Correction appointed a Special Monitoring Committee to study and evaluate the revised inmate grievance system throughout the state and to recommend any modifications which would accomplish the objectives of effectiveness, independence and feasibility. That Committee commenced its study in February, 1977, and issued its report in July, 1977.

The portion of this report which follows begins by describing the incidence of use of the new system by inmates during the eight months prior to September 1,1977. Within that general framework an effort is made to describe the new process as it has operated at Marion Correctional Institution. Finally, the recommendations of the Special Committee to Monitor the Inmate Grievance Committee are set forth, together with a statement of the response of the Department of Rehabilitation and Correction to each of those recommendations.

The following chart indicates that approximately 36% of all grievances filed under the new system between January 1, 1977 and August 31, 1977 arose at Marion Correctional Institution.

Chart 1

Institution Number of Grievances Filed 1/1/77-8/31/77

Chillicothe Correctional Institution (CCI) 217

Correctional Medical & Reception Center (CMRC) 118

Lebanon Correctional Institution (LCI) 258

London Correctional Institution (LoCI) 25

Marion Correctional Institution (MCI) 567

Ohio Reformatory for Women (ORW) 113

Ohio State Reformatory (OSR) 132

Southern Ohio Correctional Facility (SOFC) 152

1,582 Total

Under procedures established by the Chief Inspector, all grievances are evaluat-' ed according to 22 areas of concern. The following chart summarizes the number of grievances in each of these categories:

Chart 2

Area of Concern CCI CMRC LCI LoCI MCI ORW OSR SOCF Total

Conditions 13 810905 3 39

Extortion 0 000000 00

Harassment 6 15 16 0 27 3 18 6 91

Inappropriate Supervision 4 2 33 0 51 0 11 0 101

Inmate Accounts 10 3 3 6 38 1 3 12 76

Legal 14 1 2 0 22 0 0 13 52

Mail 23 5 16 11 48 3 3 11 120

Medical 45 17 5 2 73 22 8 31 203

Parole 4 4 1 0 8 0 1 1 19

Placement 25 0 4 0 72 1 6 3 111

Institutional Policy 26 0 20 34 0 27 11 120

Departmental Policy 12 0 0 0 1 0 3 2 18

Program 4 2 2 0 5 1 0 3 17

Property 5 52 37 2 103 18 39 21 277

Protection 0 1 0 0 0 0 2 2 5

Racial 0 0 1 0 5 0 2 1 9

Rules Infraction Board 8 0 77 1 19 3 0 11 119

Staff 9 6 20 0 0 53 2 7 97

Threats 0 0 2 0 2 2 0 1 7

Visits 5 1 8 1 27 1 2 8 53

Other 4 0 10 0 11 5 0 5 35

Use of Force Without Reports 0 1 _0 0 _0 0 0 0 _1

217 118 258 25 555 113 132 152 1,5703

Chart 3 summarizes the percentage of all grievances, by area of concern, which arose at Marion Correctional Institution from January 1 through August 31, 1977:

Chart 3

Area of Concern % of Total Grievances Arising at M.C.I.

Conditions 25.7

Extortion No grievances in any institution

Harassment 29.6

Inappropriate Supervision 50.4

Inmate Accounts 50.0

Legal 42.3

Mail 40.0

Medical 35.9

Parole 42.1

Placement 64.8

Institutional Policy 28.3

Departmental Policy 5.5

Program 29.4

Property 37.1

Racial 55.5

Protection 0.0

Rules Infraction Board 15.9

Staff 0.0

Threats 28.5

Visits 50.9

Other 31.4

Use of Force Without Reports 0.0

During this time the average daily population at Marion Correctional Institution was approximately 10% of the total population of Ohio’s eight adult correctional institutions. Thus it is apparent that in many categories, M.C.I. produced a disproportionate number of grievances. One explanation for this phenomenon could be that M.C.I. is a remarkably worse institution than others in the system. The Special Master has spent almost two years working closely with staff and inmates at Marion and has toured thoroughly the other seven institutions, meeting both the Superintendent and ranking staff in those facilities. In the judgment of the Special Master, the exceptionally high rate of filing of grievances by inmates at M.C.I. cannot be explained on the basis of differential conditions at M.C.I. as compared to the other seven institutions. This judgment is confirmed by that of a number of M.C.I. inmates who have been incarcerated at other Ohio institutions as well and who agree that M.C.I. is by no means the worst of the lot.

A better explanation for the disproportionate use of the grievance mechanism by M.C.I. inmates can be found in the observation contained in a recent publication on grievance mechanisms in correctional systems throughout the United States:

One of the most difficult problems associated with the creation of an effective design for any grievance mechanism is the establishment of credibility.

A study described in that report substantiates the thesis that the greater the credibility of a grievance mechanism, the more likely it is that inmates will make use of the system. The new Ohio grievance system in operation since January, 1977, depended to a very large extent upon the personality of the individuals serving as Inspectors of Institutional Services as well as that of the Chief Inspector. Missing from the system were certain elements which would tend to increase the belief of inmates that the mechanism would operate fairly and effectively. Chief among these were outside review of individual grievance resolutions and outside monitoring of grievance results in general.

While these systemic limitations operated more or less equally at all of Ohio’s correctional institutions, it is clear that the effectiveness of the eight Inspectors of Institutional Services varied considerably. The Special Committee to Monitor the Inmate Grievance System, whose report is discussed at pages 1193-1197 infra, made the following observation about the Inspectors whom they interviewed in depth:

However, we met some whose capacities are obviously taxed by the minimum burdens of the job and whose performance could not be characterized as fully acceptable.

The Special Master has met and talked with almost all of the Inspectors of Institutional Services and his observations confirm the findings of the Special Committee.

Several factors coincide to explain the higher degree of inmate confidence in the grievance mechanism as it operated at M.C.I. and thus the higher incidence of use of the system by those inmates. In the first place, the Inspector of Institutional Services at M.C.I. has made a substantial effort to make the grievance system work. Intimately acquainted as he is with the history of Taylor v. Perini, he understands the relationship between the development of a successful grievance mechanism and the termination of this litigation. Second, and of at least equal importance, the presence of the Special Master on the scene in Marion and his assurances to inmates that Marion grievances were being monitored by him would explain the inmates’ greater willingness to resort to the system. In addition, the two inmate councils at M.C.I. have been instructed repeatedly by the Special Master to refer inmates with complaints to the Inspector of Institutional Services. Members of both councils have made it clear to the Special Master that they have done this. Finally, the Special Master informed M.C.I. inmates (through the inmate council) of the appointment of the Special Committee to review the inmate grievance system. As a result, M.C.I. inmates probably were more aware of that Committee’s activities than were inmates at other institutions.

Thus it is the conclusion of the Special Master that the high incidence of use of the grievance system by M.C.I. inmates reflects the fact that those inmates had greater confidence that their complaints would be resolved by the mechanism. As will be shown subsequently, however, this confidence was not justified in all instances.

The data in Charts 1, 2, and 3 supra make it clear that a substantial number of complaints continue to be made in areas directly related to the prohibitory paragraphs of the Court’s order in this case. Eighty-three grievances were filed in the areas of harassment, inappropriate supervision, and race. In addition, a substantial number of grievances were filed in areas which are unrelat-. ed to Taylor but which have obvious constitutional implications (for example, 73 grievances in the area of medical care). These data reinforce the conclusion of the Special Master that the development of an effective grievance system is essential in order to avoid the continuation or recurrence of practices which led to this litigation as well as the development or continuation of others which in all likelihood would lead to similar litigation.

The Special Master has in fact reviewed the entire mass of grievances dealt with by the Inspector of Institutional Services at M.C.I. from January through October, 1977. It is clear to the Special Master that the Inspector has made a substantial and good faith effort to fulfill his obligations under the Department’s Administrative Regulations establishing the grievance mechanism. Those efforts have been successful to the point that the unequivocal finding of the Special Master in his first report to the Court is no longer true:

There is no effective grievance procedure maintained to process complaints relating to racial discrimination, harassment, intimidation, or insult. Taylor v. Perini, 413 F.Supp. 189, 267 (N.D.Ohio 1976).

At the same time, the Special Master’s review of the voluminous records produced by M.C.I. has convinced him that the operation of the present system is not sufficient to accomplish the purposes of the Court’s order in this case. In reaching this conclusion, the Special Master is but applying to a single institution the general observation made by the Special Committee to Monitor the Inmate Grievance System about the system as a whole.

In general the Inspector has been successful in resolving day-to-day complaints concerning misdelivery of mail, the inability of inmates to obtain proper clothing from the quartermaster, and requests of inmates for free replacement of broken eyeglasses. By utilizing appropriate staff, he has been able to resolve a number of questions concerning inmates’ financial accounts and institutional records. In cases in which the institution has been in error, the Inspector has apologized or has obtained an apology from a staff member. At no point, however, has the Inspector recommended any change of basic institutional or departmental policy in spite of the recurrence of complaints in a particular area.

For example, 103 grievances concerning property were filed between January 1 and August 31, 1977. This constituted more than 18% of the grievances responded to by the Inspector during this period. The majority of these alleged theft, loss, or destruction of inmates’ property by other inmates or by members of the staff. In virtually no such case was the Inspector able to assist the inmate in any way other than by providing him with forms needed to file a claim before the Court of Claims. No suggestions have been made with respect to increasing security or the taking of any other steps which might render inmates’ property more secure. Likewise, although 73 grievances relating to medical care were received, the Inspector has made no recommendations for change in policy or practice within the medical department. These constitute clear examples of the usefulness of the grievance system in identifying serious and recurring problems; what is needed, however, is a determined effort on the part of the Inspector to find at least a partial solution to the problem and to recommend an appropriate course of action to the Superintendent or to the Chief Inspector.

With respect to grievances directly related to the prohibitory paragraphs of the order of the court in this case, the Inspector has been less effective than he has been in resolving day-to-day problems. Allegations of harassment, inappropriate supervision, and racial discrimination have been reduced in almost every ease to a test of credibility between the charging inmate and the charged staff member. While the Inspector frequently discussed the allegation with the officer, the credibility contest was resolved in virtually all cases in favor of the staff member. In only one case was an officer reprimanded, and then only after he admitted that he had kicked an inmate in the heel who was violating dormitory rules by doing push-ups.

The Special Master recognizes that reliable evidence in cases in which the inmate alleges harassment, inappropriate supervision, and racial discrimination is difficult to obtain. One advantage of a formal grievance system, however, is that a pattern of conduct may emerge from repetitive complaints about a particular staff member. This in fact has occurred in the case of at least one officer against whom seven grievances were filed between July 29, 1977 and September 7, 1977. All alleged harassment or inappropriate supervision. Although the Inspector spoke with the officer on a number of occasions, it does not appear that any written report of these repeated allegations was ever made to the Superintendent or that a concerted investigation was launched to determine the suitability of this officer for continued employment. The Inspector did recommend that the officer attend a one-week training course at the Ohio Peace Officer Training Academy, and the officer was scheduled to attend the course on November 14 through 18.

A number of allegations of harassment have been related to various officers’ conduct in writing disciplinary conduct reports against inmates. These have been uniformly dismissed by the Inspector as relating to the Rules Infraction Board process and thus being outside the scope of his jurisdiction. While it is true that Administrative Regulation 5120-9-31 provides, “A complaint relating to a specific disciplinary decision will not be considered,” allegations of harassment by abuse of the power to issue disciplinary conduct reports fall within the jurisdiction of the Inspector. Indeed the last sentence of section (C) of Administrative Regulation 5120-9-31 specifies that

Such claims which present allegations which in part [are grievable] and in part [are not grievable] will be considered insofar as they are not excluded under this paragraph.

In one case an inmate filed a grievance alleging harassment and intimidation in the act of “issuing frivolous disciplinary reports.” Although the grievance was heard after the inmate had been found not guilty by the Rules Infraction Board, the entire response of the Inspector was the following:

This complaint revolved around a conduct report being issued against him, and according to the Administrative Regulations the Inspector is not to be involved in decisions having to do with the R.I.B. process. The decision was made by the R.I.B. panel and Inmate___was found to be not guilty, so the process was carried through.”

In spite of the fact that the grievance mechanism at M.C.I. has not accomplished all that it must in order to eliminate the practices which have led to this litigation, it is clear to the Special Master that the Inspector at Marion has attempted to make the system work effectively. He spends his entire working day acting as Inspector, meets with individual inmates on a regular and frequent basis, and makes an effort to resolve those issues which appear to him to be susceptible to resolution. Formal responses have almost always been timely. While this report has suggested certain areas in which the Inspector must develop more initiative and sensitivity in responding to inmates’ complaints, it should not be taken as any indication of lack of qualification on the part of the individual who holds this position. With improved training and direction from the Chief Inspector and the development of more independent status vis á vis the Managing Officer, the Inspector at M.C.I., in the opinion of the Special Master, is capable of performing the duties of his position. The reforms which are needed are systemic in nature; when those reforms are made, the current Inspector at Marion will be in a position to perform in a more effective manner.

Thus it is clear to the Special Master that the grievance system at Marion Correctional Institution, in its actual operation, is serving as a vehicle for the voicing of complaints by inmates — including those concerning areas relating to the Court’s order in this case. At the same time additional efforts are required in order to make the system responsive to inmates who use it. In particular, the present system appears to be ineffective in dealing with allegations of harassment and inappropriate supervision.

Twenty-one appeals from inmates at M.C.I. were decided by the Chief Inspector between January and November, 1977. Of these, three resulted in a finding that the Inspector of Institutional Services was in error and the inmate was given relief by the Chief Inspector. In four cases it appears that the inmate was given partial relief. (In one of these, the grievance was “dismissed” in spite of the fact that the Chief Inspector acknowledged that “your claim was valid.” The ground for the dismissal was that the procedure which led to the inmate’s complaint'had been corrected by an earlier order of the Chief Inspector based upon his administrative review of recent grievances.) In 14 cases, the decision of the Inspector of Institutional Services was upheld.

Several of these 14 responses by the Chief Inspector confirm the weaknesses observed above concerning the operation of the system at Marion. In one appeal relating to destruction of property during a shakedown, the Chief Inspector offered no solution other than the inmate’s filing a claim with the Court of Claims. If the property was in fact destroyed during a shakedown by officers, some additional response certainly would have been appropriate. In another appeal involving an allegation of misuse of the disciplinary conduct report writing process, the Chief Inspector responded, “Had there been no basis for a ticket, the review officer would have not processed the ticket in the beginning.” The assumption that all such abuses will be rectified by the charging officer’s shift commander is hardly a complete disposition of the question raised by the inmate on appeal.

In discussing the effectiveness of the grievance system at the institutional level, the Special Master indicated that while the system represented a distinct improvement over that which it replaced, substantial room for improvement existed. The same, it would appear, can be said about the operation of the system at the departmental level. The Special Master is impressed by the fact that a fair number of inmates are receiving partial or total relief at the hands of the Chief Inspector; at the same time, there appear to be a lack of initiative in dealing with certain problems and a failure to recognize the true import of certain appeals. As a result, the system is not operating with the effectiveness which was sought by those who implemented it.

The final element of this analysis of the new inmate grievance procedure relates to the recommendations of the Special Committee to Monitor the Inmate Grievance System which submitted its report to the Director of the Department of Rehabilitation and Correction and to the Special Master in July, 1977. The events leading to the appointment of this Committee are detailed in Taylor v. Perini, 431 F.Supp. 566, 571-572 (N.D.Ohio 1977). In its report, the Committee made a number of unanimous recommendations for improvement of the grievance system, the adoption of which will increase the credibility of the system and make it more effective. See Appendix A, p. 1217 infra. What follows is a brief summary of the Committee’s recommendations together with the response of the Department of Rehabilitation and Correction to those recommendations.

1. There should be a permanent external monitoring committee. The Committee recognized that permanent external monitoring, on a continuous basis, was essential to establish the independence, and thus the credibility, of the grievance mechanism. The Committee recommended that a permanent monitoring committee of five members be appointed by the Governor, and it established criteria for the membership and standards for the operation of such a committee. In response to this recommendation, the Department of Rehabilitation and Correction informed the Special Master of Amended House Bill Number 305 which was then pending before the General Assembly of the State of Ohio. That Bill provided for the appointment of a Correctional Institution Inspection Committee consisting of eight legislators appointed by the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The Department proposed to sponsor an amendment to the legislation which would require that committee to include in its annual report a “separate evaluation of the inmate grievance procedure at each state correctional institution.” At a meeting of the Director of the Department of Rehabilitation and Correction, the Chairman of the Special Committee to Monitor the Inmate Grievance System, and the Special Master, it was agreed that this legislative committee would fulfill the purpose of the monitoring committee recommended by the Special Committee. Both the Department of Rehabilitation and Correction and the Special Master spoke in favor of the Bill at a meeting of the Finance Committee of the House of Representatives. The Bill was subsequently passed by the Legislature and signed into law by the Governor. The text of the law is attached as Appendix B, p. 1223 infra.

2. The Inspector of Institutional Services at each institution should be appointed by and be under the direct supervision of the Chief Inspector. The Special Committee believed that this organizational change was dictated by the need “for the maintenance of the credibility of the system.” The Department of Rehabilitation and Correction responded that it could not agree to this proposal because of the need for all personnel at a given institution to be appointed by and directly responsible to the Managing Officer. In addition, the Department suggested that the Inspector would be considerably less effective if he were to be regarded as an “outsider” by other staff within the institution. The Department agreed that the Inspector should be responsible both to the Managing Officer and to the Chief Inspector. Indeed, on April 5, 1977, the Director and the Chief Inspector had issued a directive to all managing officers indicating that performance evaluations on Inspectors of Institutional Services would be completed by the Chief Inspector and then be returned to the Managing Officer for signature as appointing authority. See Appendix. C, p. 1224 infra. In the opinion of the Special Master, this arrangement constitutes a reasonable response to the recommendation of the Special Committee.

3. The Administrative Regulations should be much more specific concerning the qualifications and duties of the Chief Inspector and the Inspector of Institutional Services. The Special Committee recommended that a number of specific criteria be incorporated into the Administrative Regulations relating to these officials. The Department agreed to all of these recommendations with two exceptions. The Special Committee recommended that the Inspector of Institutional Services “have no other assignments than those necessary for the inspection of services and the resolution of grievances.” The Department agreed to amend the regulation to make it clear that the “primary function” of the Inspector would be the resolution of grievances and the inspection of services. The Special Committee recommended that the Inspector of Institutional Services conduct training of institutional staff on the operation and purpose of the grievance system and that he maintain a roster of staff members receiving training. The Department suggested only the elimination of the duty to maintain a roster based upon the fact that such a roster is maintained by the training officer in each institution.

While the Special Master has no difficulty with the maintenance of a training roster by the institutional training officer, he is concerned about the Department’s response with respect to the duties of the Inspectors. The Department has argued that the modest incidence of use of the grievance system at some institutions suggests that the position does not require the full-time attention of the Inspector. In the opinion of the Special Master, however, the low utilization rate indicates only that the Inspector should be doing more than he is at each of those institutions to make the grievance system operate effectively. Nonetheless, so long as the position of Inspector remains full-time at Marion Correctional Institution, as it has been since January, 1977, the Special Master does not believe that he has the authority to object to the Department’s position as it relates to other institutions. If the Department is truly interested in developing an effective grievance mechanism at all of its adult institutions, however, it should inquire into the reasons for the low level of grievance activity at certain of its institutions rather than insist that additional unrelated responsibilities be assigned to the Inspectors at those institutions.

4. The terminology of “formal” and “informal” grievances should be discarded as confusing and unspecific. For the reasons suggested in the Special Committee’s recommendation, the Department of Rehabilitation and Correction agreed to discard the distinction between “formal” and “informal” grievances.

5. Inspectors should be encouraged to engage in regular consultation with inmate groups. The Department of Rehabilitation and Correction agreed to implement this recommendation by inserting language to this effect in the amended version of the Administrative Regulation detailing the duties of the Inspector of Institutional Services.

6. The Chief Inspector should review the draft of all proposed Administrative Regulations in advance to determine the probable impact of the regulation in creating grievances. The Department of Rehabilitation and Correction agreed to implement this recommendation.

7. The role of the Managing Officer with respect to the Inspector of Institutional Services should be limited to information and advice and Managing Officers should not assume the role of “Super-Inspector”. The substance of this recommendation is that the Managing Officer, to the extent that he resolves informal complaints by various means, should keep the Inspector of Institutional Services informed. In addition, investigations of serious complaints, brought to the attention of the Managing Officer, should be delegated to the Inspector. Finally, the Inspector should be totally independent, consistent with the institution’s need for security, to investigate and resolve grievances. He should not be regarded as a mere assistant to the Managing Officer. Although the Special Committee did not recommend any particular action to implement this recommendation, the Department of Rehabilitation and Correction agreed with the recommendation in principle. To the extent possible, this attitude will be reflected in the revised Administrative Regulations and in the operation of the Chief Inspector’s office vis a vis managing officers.

8. Inspectors should demonstrate increased initiative 'in the conduct of general inspections as opposed to resolution of grievances. Administrative Regulation 5120-9-29(a) provides that the Inspector “shall also monitor the application of institutional and departmental regulations affecting the services and security of the institution.” These duties are in addition to his responsibilities as the grievance resolution agent within the institution. The Department of Rehabilitation and Correction agreed to emphasize this facet of the Inspector’s responsibilities. As a beginning, the Chief Inspector has ordered each Inspector to submit a report each month on the operation of one departmental policy within the institution.

9. Independent reviewers should be appointed to assist in the settlement of grievances. As part of its recommendation that a permanent external monitoring committee be established, the Special Committee made it clear that the functions of system monitoring and grievance review are altogether different in nature. The Special Committee recommended that its proposed monitoring committee nominate independent reviewers to advise the Director in those cases in which the inmate grievant is dissatisfied with the result of the grievance process and in those cases in which the Director wishes to obtain outside views before affirming a decision of the Chief Inspector favoring the inmate. As an alternative, the Chairman of the Special Committee suggested the use of outside reviewers who would make advisory recommendations to the Chief Inspector.

After discussion with the Special Master, the Department of Rehabilitation and Correction agreed to initiate an “experimental” program at Marion Correctional Institution, utilizing members of the institution’s Citizens’ Advisory Committee to serve as outside reviewers. Any inmate dissatisfied with the decision rendered by the Inspector of Institutional Services will be permitted to seek outside review. A single member or a panel of the Citizens’ Advisory Committee will be assigned to cases on a rotating basis. An outside reviewer will be permitted to reach his decision on the basis of the written record, to order an investigation and a written report of its results, or to hold a hearing within the institution in order to hear evidence. At the conclusion of his study, the reviewer will submit a written advisory opinion to the Chief Inspector, a copy of which will be sent to the inmate/grievant. In no case will the opinion of the reviewer be binding upon the Chief Inspector or the Director. After the Chief Inspector has determined the action which he believes to be appropriate, his recommendation as well as the advisory opinion of the outside reviewer will be forwarded to the Director for final action.

The Special Master is appreciative of the willingness of the Department to implement this experimental program at Marion. Before outside review can commence, however, it will be necessary to develop review procedures and to train the members of the Citizens’ Advisory Committee to serve as reviewers. For these purposes, the Special Master recommends that the Center for Community Justice, an agency with substantial expertise in this area, be employed to conduct a training program in Marion. The training effort should be directed at the members of the Citizens’ Advisory Committee, the eight institutional Inspectors, and the Chief Inspector simultaneously. Approximately three months after the process of outside review begins, it is the recommendation of the Special Master that a review be conducted of the program’s effectiveness.

The Special Master has indicated strongly his agreement with the principle enunciated by the authors of Grievance Mechanisms in Correctional Institutions:

The mechanism must include some form of independent review, i. e., review by people outside the correctional structure. The more totally independent of official governmental control such review is, the more likely it will be to promote inmates’ belief in the mechanism’s fairness and their willingness to use it.

It should be stressed that the element of outside monitoring which will be provided by the legislative committee established by recent legislation is altogether different from that of outside review of individual grievances which will be provided by the Citizens’ Advisory Committee. Like the Special Committee to Monitor the Inmate Grievance System, the Special Master believes that both elements are essential for the maintenance of an effective fair, and credible system. Thus any final conclusions with respect to the effectiveness of the grievance mechanism must await the evidence which will be produced by the use of outside reviewers at Marion Correctional Institution over the next months.

THE INMATE COUNCILS

In addition to the development of an effective grievance mechanism, compliance with the prohibitory paragraphs of the Court’s order in this case requires the establishment of a permanent and effective inmate council in the stockade and in the honor dormitory at M.C.I. The purpose of these councils is to provide a means for bringing problems to the attention of the administration in order that those problems may be alleviated by administrative action. Like the grievance system, ongoing inmate councils will serve to promote compliance with all of the provisions of the Court’s order as well as to avoid practices and procedures which could lead to similar litigation.

In his third report, the Special Master was able to report some progress on the part of the first councils which were elected on August 6, 1976; indeed, at the time of the election of the second councils on February 5, 1977, there appeared to be a high degree of interest in these organizations on the part of inmate population. The Special Master made it clear that the strengthening of the councils was a matter of highest priority:

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

It is thus with great regret that the Special Master must report that both inmate councils — and particularly the stockade council — have experienced substantial difficulty since the most recent report of the Special Master. The result, which could surprise no one, is that inmate interest in the organizations has fallen off to a remarkable extent. Inmate apathy was apparent at the time of the election of the third councils on August 5, 1977, and the third stockade council has experienced significant difficulties in retaining membership and accomplishing the basic tasks of organization.

For many months the Special Master has emphasized that both councils would require the dedicated assistance of staff liaison. This responsibility was assigned by the Superintendent to two high ranking staff members. Their task was to assist the councils in the development of viable proposals to remedy existing problems as well as in the marshalling of resources to implement these proposals upon their acceptance by the Superintendent. The guidance and assistance of these liaison staff members were essential for the development of proposals acceptable to the Superintendent.

With respect to the stockade council, the liaison staff member has adopted an essentially passive role. He has been willing to assist the council in some ways when it has sought his help, but he has not provided the element of positive guidance which is needed. The problem was compounded by the fact that the Superintendent met infrequently with the council or its executive committee. As a result, the organization simply drifted.

In many instances, proposals made by the council were met with negative response; in others, no formal response was ever given; in still others, the administration agreed to the proposal put forward by the council but failed to implement the needed changes. The inmates thus have learned that agreement alone does not accomplish change, and their distrust of the system has been increased by the failure of the administration to implement a number of solutions upon which agreement was reached. These delays and failures in implementation have created in some instances a higher level of frustration among inmates than did the problem which, gave rise to the council proposal in the first instance.

The Special Master has not received regular written reports from the liaison staff member concerning the activities of the stockade council. Thus the following statement of council proposals and administrative responses has been drawn from the records and minutes of the stockade council itself.

Chart 4

Substance of Proposal Date of Proposal Response by the Administration

1. The council requested 12-9-76 that a new system be established for the distribution of sheets and pillow cases to remedy shortages in the institution. On 12-17-76, the Superintendent responded formally and positively to the council's request. The new system is operational and is working effectively.

2. The council proposed 12-9-76 that the audio system in the gymnasium used for showing movies be repaired or replaced. On 3-2-77 and 6-29-77 the council was assured that a new audio system would be installed by 11-77. The sound system has not yet been ordered.

3. The council indicated 12-9-76 the need for improved procedures designed to insure the delivery of Christmas packages without inordinate delay. The administration assigned additional personnel to assist with the delivery of Christmas packages, and such packages were delivered with a minimum of complaints.

4. The council requested 1-77 that the administration provide better service in the cafeteria for inmates with dietary problems. Although the administration did assign responsibility for improving the diet line to the institutional physician, no progress has been reported.

5. The council requested 1-77 the administration to install a microwave oven in the visiting room for use by visitors. The administration refused to provide such an oven, but did agree to allow a microwave oven if it was purchased by an inmate organization.

6. The council requested 1-77 permission for visitors to bring cameras into the visiting room for taking family photographs. The institution refused to allow visitors to bring in cameras. The Jaycees would continue to be responsible for photographs, although this procedure has proven to be ineffective.

7. The council proposed 3-77 that a sink be installed in the masonry school area. On 4-4-77, the Director of the Education Department responded that the need for a sink in that area was being examined. No formal response has been given to the council.

8. The council requested 3-22-77 the designation of a cell-block for use by inmates participating in the college program. This proposal was refused on 3-28-77.

Date of Substance of Proposal Proposal Response by the Administration

9. The council requested 3-22-77 the designation of another quiet dormitory. On 3-28-77, the council was instructed that they must establish a greater showing of need for another quiet dormitory.

10. The council proposed 3-22-77 the creation of a vocational education program for food service training. The administration indicated on 3-28-77 that this was a possibility and would be examined. No final response has been submitted to council.

11. The council requested 3-22-77 the provision of towels larger than the hand towels presently issued. The administration stated that larger towels were not available for distribution.

12. The council requested 3-22-77 that inmates be allowed to acquire postage through the cash slip system since stamps were no longer allowed. The administration agreed to this proposal and the procedure has been adopted and has been working effectively by 5-77. However, the cash slip system is restricted to legal mail, excess postage, and cards.

13. The council proposed a 5-6-77 revision of the good conduct visit policy to allow inmates to accumulate good conduct visits so they could be used more conveniently and to allow persons not on the institutional visiting list to visit during a good conduct visit. The administration refused to permit either the accumulation of good conduct visits or visits by persons not on the visiting list during such visits.

14. The council requested 5-6-77 that the administration provide coloring books for small children in the visiting room. The council had not received a formal response to this proposal.

15. The council proposed 5-6-77 that fans be provided for the visiting room for the summer months. The council has not received a formal response to this proposal.

16. The council requested 5-6-77 that the administration acquire facilities to allow inmates to make a monthly phone call. This was not a council project initially, but once the plan became known, the council adopted it as a council project. Negotiations with the telephone company are still in progress.

Substance of Proposal Response by the Administration Date of Proposal

17. It was requested that representatives from council be allowed to participate in the orientation program for incoming inmates. This proposal was approved on 7-19-77, and council representatives have been allocated 30 minutes to address incoming inmates on a weekly basis. 5-6-77

18. The council requested that all rule and policy changes be posted in advance to put inmates on prior notice. The council has not received a formal response to this proposal. 5-6-77

19. The council proposed 5-6-77 that inmate's visiting files be kept confidential. The council has not received a formal response to this proposal.

20. The council requested 5-6-77 that new arrivals at M.C.I. be given a $5 line of credit to make purchases from the commissary before their funds are transferred from their former institution. No final response has been submitted to council.

21. The council indicated 10-4-77 the need to provide more adequate cleaning of cell-block and dormitory refuse cans. On 10-4-77, the Superintendent assured the council that he would investigate the problem. No final response has been received by council.

Thus in some eleven months, 21 council proposals have resulted in six positive and six negative responses. Two matters upon which the council and the administration are in agreement — the installation of telephones and a new movie sound system— have dragged on for months without any demonstrable progress. Nine proposals have not been graced with a formal written response of any kind from the administration.

Given such a record, it is hardly astonishing that the council has lost the confidence of much of the inmate population and is suffering from a degree of internal dissension. Indeed the fact that the council has survived at all is something of a tribute to the willingness of some inmates at least to continue to seek to improve their situation through orderly and legitimate channels.

The inmate council in the honor dormitory has proven to be somewhat more effective than that in the stockade. Staff liaison with that group has been more effective and many of the proposals made by the council were of such a nature that they could be agreed to and implemented by the liaison staff member. The following chart indicates the nature and date of formal proposals which have been submitted by the honor dormitory council together with a statement of the administration’s response.

Chart 5

Date of Substance of Proposal Proposal Administrative Response

1. A request was made for 9-16-76 repair of the deep fryer and exhaust fans in the cafeteria. On 12-17-76, the administration agreed to repair these facilities as soon as possible. After evaluation of this equipment, the fans were found to be operating and the fryer was beyond repair.

2. A request was made for 9-16-76 the addition of pastries to the commissary list. As of 6-7-77. baked goods were available in the commissary, but once these items were available, inmates were no longer able to take bread from the dining room.

3. A request was made for 9-17-76 a revised cafeteria schedule and distribution of planning menus. The evening cafeteria remains the same. The menus requested were the master planning menus, and the administration felt that because the menus were not binding they need not be distributed.

4. A request was made to 9-16-76 alter the work schedule of men assigned to the cafeteria and to attempt to alleviate the shortage of help in that area. On 12-17-76, the administration agreed that incoming inmates would be assigned to the cafeteria to solve the problems in that area. The council reported on 8-9-77 that this situation had greatly improved.

5. A request was made for 10-3-76 the enlargement of the visiting room. On 12-17-76, the administration agreed to examine this proposal and submit a report by 1-1-77. Because of excessive cost, this proposal was refused.

6. The council proposed 10-3-76 that the men|s and women's restrooms adjacent to the visiting room be enlarged. Although no action was taken to enlarge the men's restroom, a second women's bathroom has been constructed and made available.

7. A request was made for 10-3-76 the enlargement of the outdoor- visiting area and to provide improved accommodations in that area. The institution promised to give a final answer by 3-1-77. A plan was submitted on 6-2-77 that denied the proposal to enlarge the area, but the accommodations were improved in June, 1977.

8. A request was made for 10-3-76 one-time visits by persons not on the visiting list. This proposal was refused on 11-30-76.

9. The council requested 10-3-76 that inmates be allowed to wear either blue or green institutional clothing on visiting days. This proposal was refused on 11-30-76.

Substance of Proposal Date of Proposal Administrative Response

10. The council requested that inmates be allowed to bring food into the institution from the visiting, room. 1CK3-76 Although this request was turned down on 11-30-76, the Superintendent created an exception for the forthcoming Christmas holidays.

11. The council indicated the need for a trained food service supervisor for the cafeteria. 10-3-76 On 12-17-76, the administration agreed to appoint a qualified person to fulfill this need. On 3-23-77, the administration stated that there was no one available for that position. Subsequently, such a person was appointed.

12. The council submitted a committee report on the plumbing problems in the honor dorm laundry room and in several bathrooms. 12-4-76 The bathrooms have been repaired to some extent, but the plumbing in the laundry room continues to be in disrepair.

13. The council proposed that GED classes be provided for honor dorm inmates. 12-27-76 No formal response has been' given to the council.

14. The inmate council 1-27-77 submitted a list of equipment needs for recreation. Although all of the items on the list were not supplied, a substantial improvement was made in this area.

15. The council requested 2-11-77 that a used or new clothes dryer be purchased for the honor dorm laundry. A used dryer was delivered on 6-16-77, but it has not yet been installed.

16. The council suggested 2-22-77 that the furlough procedures be reevaluated and modified. On 4-26-77, the administration explained the furlough procedures to the council and resolved problems that did not create a conflict with Administrative Regulations.

17. The council indicated 4-25-77 the need for additional emergency equipment in the honor dorm medical room. The administration increased the medical supplies available in the honor dorm.

18. The council requested 9-12-77 that the administration review a set of newly posted honor dorm rules. Of the five rules that the council found to be objectionable, one rule was modified, two rules were reexamined and recommendations for change were accepted. It was decided that the remaining two rules would continue to be enforced, but compromise was reached concerning the scope of the rule.

Of the 18 proposals described above, 17 have received formal responses and 12 have produced action by the administration. While the administrative response has not always been completely satisfactory to the council, substantial progress had been made on a number of issues. In some cases, implementation of agreed changes has been much too slow, e.g., installation of a clothes dryer which was delivered to the institution on June 16, 1977. While staff liaison has been more effective with respect to the honor dormitory council, contact between the group and the liaison staff member has been uneven. More frequent and regular meetings between the council and the liaison staff, regular contact between the council and the Superintendent, and greater attention to the speedy implementation of approved proposals are necessary at this time.

One reason for the relative success of the honor dormitory council may have been its relatively small size. This council is made up of six representatives and 12 alternates. After discussions about the state in which the stockade council found itself, the Superintendent and the Special Master agreed to suggest to the stockade organization that six standing committees of the council be established. One of the six committees will be concerned with each of the following areas: food service; mail and visiting; medical service; recreation; safety and sanitation; and policy.

Appointment to the standing committees will be made by the council, which will retain its present organizational structure. The Superintendent will appoint a member of his staff in each of the relevant areas of concern to act as staff liaison and meet regularly and frequently with each standing committee. The function of staff liaison will be to assist the committee in the development of proposals for submission to the Superintendent and to see to it that proposals which are approved are implemented as fully and quickly as possible. The various inmate committees will report back on their efforts and progress to the entire council. Election of council members will be unchanged by the new procedure, and the council will continue to meet as a body on a regular basis.

The stockade council agreed to this proposed change on October 22, 1977. The hope is that the new arrangement will provide for more effective staff assistance and input while making it easier for small groups of inmates to develop viable proposals for presentation to the administration.

Before the new system could be implemented in the stockade, a work stoppage occurred from October 31 through November 2, 1977. At the time of the stoppage, the Superintendent announced that he would not meet with any group of inmates other than the duly elected inmate council. As a result of the discussions which the Superintendent conducted or authorized with the council, the stoppage was brought to an end without damage or injury. The final resolution was brought about by a vote of the entire population which was reflected by the vote of the council to end the strike.

In announcing the end of the stoppage to each housing unit within the stockade, the Superintendent gave much credit to the inmate council for its responsible negotiations and representation. Hopefully, the council itself gained stature in the eyes of the population. Thus it may be that this unfortunate event will produce the favorable result of altering for the better the relationship between the council and the administration and of increasing the effectiveness and credibility of the council. Since the work stoppage ended, the Superintendent has conducted discussions with the council on a number of important matters which concerned the inmate body. The continuation of an attitude of mutual respect and cooperation, together with the restructuring of the council which was described above, offer the best possibilities at this time for the development of an effective council within the stockade.

CONCLUSIONS

Compliance with the prohibitory paragraphs of the Court’s order requires the development of a credible and effective grievance mechanism as well as a permanent and effective inmate council in the stockade and in the honor dormitory at M.C.I. These mechanisms relate as well to compliance and continued compliance with numerous mandatory provisions of the order.

The adoption of the recommendations of the Special Committee to Monitor the Inmate Grievance System will be a significant step in the right direction. In particular, the provision of an element of outside review through the M.C.I. Citizens’ Advisory Committee should instill in the system greater objectivity and credibility. The Inspector of Institutional Services at Marion will require increased assistance and training from the Chief Inspector, particularly in view of the heavy workload which the institution’s Inspector carries relative to that of his counterparts in other institutions. The grievance system must be used to identify recurring problems, and it is the duty of the Inspector of Institutional Services to develop solutions to these problems when this is possible. In particular, a more effective means of dealing with grievances alleging harassment and inappropriate supervision must be found. Finally, more attention must be given to the inspection as opposed to the grievance