Full opinion text
AGREEMENT AND ORDER DON J. YOUNG, District Judge. WHEREAS, the plaintiff class consists of all persons who are incarcerated in Marion Correctional Institution at the present time or in the future; and WHEREAS, Defendant E. P. Perini (hereinafter referred to as the Superintendent) is Superintendent of the Marion Correctional Institution, Ohio Department of Rehabilitation and Correction; and WHEREAS, Defendant E. P. Perini through his counsel prior to trial on merits waived hearing and Findings of Fact and Conclusions of Law and all issues covered by the Order of September 12, 1972; and WHEREAS, Defendant George F. Den-ton (hereinafter referred to as the Director) over objection was joined as a party defendant by Order dated March 1, 1976 for the purpose of implementing the Order of September 12, 1972 and supplemental orders; and WHEREAS, the Special Master appointed by Order dated December 1, 1975 has found that the defendants are in substantial compliance with the spirit and intent of the September 12, 1972 Order and that, as anticipated by that Order, certain of its provisions are in need of modification. IT IS AGREED AND THE COURT SO ORDERS THAT: 1. This Agreement supersedes the Order of September 12, 1972 and subsequent orders supplementing its provisions and all such orders are hereby wholly abrogated; 2. This Agreement is entered to adjust, settle and compromise the claims made in Plaintiffs’ Second Amended Complaint and is entered in lieu of any Findings of Fact or Conclusions of Law with respect to Plaintiffs’ allegations; 3. It is understood that the practices, procedures and standards prescribed below are such as have been negotiated between the parties and in no way represent a judicial determination of practices, procedures or standards required by the Constitution of the United States or of the State of Ohio. IT IS FURTHER AGREED AND THE COURT SO ORDERS THAT the defendants, their employees, agents, successors, assigns and all those in concert therewith will: 4. Unless pursuant to a warrant issued by a Court of competent jurisdiction, refrain from obstructing, censoring, reading, copying, or delaying legal mail which consists of mail between any of the members of the plaintiff class and any court of law, attorney-at-law, public service law office, law school legal clinic, or any office or official of the federal, state or local government; refrain from opening or inspecting any such legal mail from or to any member of the plaintiff class except where conducted in the presence of the recipient for the limited purpose of detecting contraband. In the event that any such legal mail from or to any member of the plaintiff class is opened or inspected inadvertently outside the presence of the recipient, the Superintendent shall notify the sender and addressee of such mail in writing of the error. 5. Refrain from interfering with, or inhibiting by imposition of sanctions, or harassment, efforts by members or the plaintiff class to assist one another in the preparation and conduct or defense of actions in any court of law involving the adjudication of the legal rights, privileges, or immunities of the assisted member of the plaintiff class. The defendants shall afford plaintiffs so desiring to work together a reasonable place to do so, but may limit such activity to non-working hours. In addition, the defendants shall maintain separate collections of law books in both the Stockade and the Honor Dormitory at Marion Correctional Institution and will make such law books available during reasonable hours to members of the plaintiff class. Each collection shall include, at a minimum, the following books: Federal Materials 1. United States Code Annotated. St. Paul: West. Constitution; Titles 18; 28 (Secs. 2241-2255, Federal Rules of Appellate Procedure, Rules of Supreme Court, Federal Rules of Evidence); 42 (Secs. 1981-1985). 2. Supreme Court Reporter. St. Paul: West. Vol. 80- (1960 to date). 3. Federal Reporter (2nd series). St. Paul: West. Vol. 273- (1960 to date). 4. Federal Supplement. St. Paul: West. Vol. 180- (1960 to date). 5. Shepard’s United States Citations. Colorado Springs: Shepard, 1968. 6. Shepard’s Federal Citations. Colorado Springs: Shepard. Federal Supplement; Federal Reporter, 2d Series. 7. Rules of local federal district courts. State Materials 1. North Eastern Reporter (2nd series) (Ohio cases). St. Paul: West. Vol. 159- (1960 to date). 2. Page’s Ohio Revised Code Annotated. Cincinnati: W. H. Anderson, Appendix, Civil Rules, Titles 1, 19, 21, 23, 25-27, 37, 29, 51-53, all with current supplements. 3. Shepard’s Ohio Citations Cases and Statutes. Colorado Springs: Shepard. 4. Schroeder-Katz Ohio Criminal Law Practice and Forms. Cleveland: Banks-Baldwin. 5. Criminal Law Reporter. Washington, D.C.: Bureau of National Affairs. Weekly. General Materials 1. Complete Manual of Criminal Forms, Federal and State, Bailey, F. Lee and Rothblatt, Henry B., Rochester: Lawyers Cooperative, 1968. 2. Black’s Law Dictionary; Black, Henry C. (latest ed.) St. Paul: West. 3. Legal Research in a Nutshell (latest ed.); Cohen, Morris L., St. Paul: West. 4. Criminal Procedure in a Nutshell, Israel, Jerold H. and LaFave, Wayne R. St. Paul: West. 5. Federal Habeas Corpus (latest ed.). Sokol, Ronald P. Charlottesville, Va.: Michie. 6. Constitutional Rights of Prisoners; Palmer, John W. (current supplement); Cincinnati: Anderson. The defendants shall assign at least three inmate law library clerks in the main stockade at Marion Correctional Institution (hereinafter referred to as the Stockade) and at least two inmate law library clerks in the Honor Dormitory of Marion Correetional Institution (hereinafter referred to as the Honor Dormitory) to assist other members of the plaintiff class in conducting legal research, and shall provide such inmate law library clerks with reasonable office supplies. 6. Provide to any member of the plaintiff class without charge, or on credit, paper, pencils, pens, notarial services, and postage (including certified mail and special delivery charges) for use in the preparation and mailing of documents and correspondence pertaining to legal proceedings involving the adjudication of the rights, privileges, or immunities of said member of the plaintiff class. In addition, the defendants shall make available photocopy service for the copying of such documents and correspondence at a price not exceeding that charged by commercial photocopy services in the City of Marion, Ohio. 7. Permit members of the plaintiff class without restriction to receive, possess and read printed materials addressed to them as individuals including newspapers, magazines, pamphlets, books, photographs, whether or not of persons known or related to the inmate, drawings, and pre-recorded magnetic tapes, with the exception of individual publications which either are obscene or inflammatory. In order to be regarded as obscene or as inflammatory, printed material must be subject to exclusion under the following standards and procedures: (a) Definitions (1) “Contemporary community standards” means the standards prevalent in the social environment of an urban center, such as Columbus, Cincinnati or Cleveland, with their range of literature and magazines which are available to the general adult public. (2) “Taken as a whole” means viewed in its entirety. It does not refer to an isolated depiction or description. (3) “Serious literary, artistic, political, or scientific value” means a substantial value which is not merely a contrivance designed to protect otherwise obscene material. (4) “Prurient interest” means an interest in that which is lewd or lustful. (5) “Patently offensive” means a depiction or description, which is a graphic or explicit portrayal of the naked penis or vagina. (b) In the interest of health or safety the Superintendent may establish and post regulations reasonably limiting the maximum amount of printed material which may be retained by an inmate. Such regulations shall be forwarded to the Director for review and approval. (c) Printed material may be excluded from the Institution for one or both of the following reasons: (1) The printed material is obscene. In order to be considered obscene and thus subject to exclusion, printed material must meet all the following three standards, which shall be considered in the order stated below. (a) The printed material depicts or describes, in a patently offensive way, conduct falling within one or more of the following categories: (i) Nudity emphasizing a state of sexual arousal or stimulation; for example, a male erection or graphic exposure of the clitoris. (ii) Nudity emphasizing masturbatory activity. (iii) Portrayal of explicit sexual acts, heterosexual or homosexual, including vaginal, anal, oral, and manual acts. (iv) Portrayal of acts of bestiality; that is, sexual relations between human being and an animal. (v) Portrayal of acts of sado-masochism emphasizing the infliction of pain. (vi) Portrayal of an excretory function. (b) The average person, applying contemporary community standards, would find that the printed material, taken as a whole, appeals to the prurient interest. (c) The printed material, taken as a whole, lacks serious literary, artistic, political, or scientific value. (2) The printed material is inflammatory; that is, the presence of the printed material i,n the institution would constitute a clear and present danger to the security or safety of the institution. No publication shall be considered inflammatory solely on the basis of its appeal to a particular ethnic, racial, or religious audience. In order to constitute a clear and present danger to the security or safety of the institution, the printed material must meet at least one of the following criteria: (a) Printed material which incites, aids, or abets criminal activity, such as rioting or illegal drug use. (b) Printed material which incites, aids or abets physical violence against others, including instruction in making, using, or converting weapons. (c) Printed material which incites, aids, or abets escape, such as instruction in picking locks or digging tunnels. (d) No printed material shall be excluded under the above stated standard except by majority vote of an institutional Publications Review Committee consisting of three or more persons not more than one of whom shall have primary responsibility in the area of custody. The following procedures shall be observed in all cases: (1) The inmate/addressee shall receive notice of the interim prohibition of intercepted printed material on the working day following initial arrival of the printed material at the institution; (2) The notice to the inmate/addressee shall state the reason for the interim prohibition and inform him of his right to an appearance before the Publications Review Committee; (3) The Publications Review Committee shall meet on a weekly basis and any inmate wishing to appear before the Committee may do so at the meeting following the institution’s receipt of the printed material in question; (4) The Publications Review Committee shall render a decision on the date of its consideration of the printed material in question and shall provide the affected inmate with written notice of the decision and the reason therefor on the following working day; (5) In the event of a decision to exclude printed material, the inmate shall be notified of his right to appeal to the Department of Rehabilitation and Correction, and the Department shall provide the affected inmate with notice of the decision on appeal within 28 working days of the receipt of the appeal; (6) The institutional Publications Review Committee shall maintain records of all Committee proceedings for at least one year following the decision of the Committee, none of which records shall be placed, or referred to, in any inmate’s file. (e) Any list of prohibited printed materials promulgated by the Department of Rehabilitation and Correction shall not apply to printed material received by inmates at Marion Correctional Institution and shall not be considered by the institutional Publications Review Committee in making its decisions. 8. Refrain from imposing any disciplinary sanctions on, or making any adverse disciplinary record references regarding, any member of the plaintiff class except for the violation of written regulations sufficiently definite and specific and sufficiently distributed and/or posted to provide each member of the plaintiff class with fair notice of what conduct is prohibited and of the permissible range of sanctions for each such violation. For this purpose, the defendants shall publish and distribute to all members of the plaintiff class a manual containing notice of conduct which is prohibited generally and the permissible range of sanctions for each such violation. The defendants shall revise the contents of these manuals as necessary to reflect current rules and regulations. In addition, specific rules and sanctions relating thereto affecting particular groups of inmates or particular areas of the prison shall be posted prominently in such a way as to provide notice to affected inmates. A verbatim copy of this Order shall be printed in the manual referred to in this paragraph. 9. Refrain from imposing solitary confinement, punitive segregation, or correctional cell incarceration on any member of the plaintiff class unless consistent with the following conditions: (a) Such incarceration shall be for a fixed term not to exceed 15 consecutive days, nor shall any inmate be subjected to more than a total of 30 days of such incarceration during any six month period; provided, however, that the 15 and 30 day limitations shall not apply to inmates whose transfer to another correctional institution has been approved by the Department of Rehabilitation and Correction; (b) Normal institution meals (excepting only desserts) shall be provided; (c) Adequate clothing, bedding, toilet facilities, and toilet articles (including soap, toothbrush, toothpaste, and shaving gear) shall be provided; (d) Normal medical care shall be provided, and a medically trained member of the medical staff shall make rounds through the correctional cell area at least once during the course of the first and second employment shifts; in addition, all prescription drugs shall be dispensed by medical personnel; (e) A reasonable number of books of the inmate’s selection subject to general institution rules governing reading matter shall be permitted or provided; (f) Inmates enrolled in an educational course shall be permitted to have their textbooks; (g) Normal mail privileges shall be permitted; (h) Clergymen, social services personnel and attorneys shall be permitted access during reasonable hours to inmates so incarcerated; (i) Adequate light for reading in the daytime and adequate darkness for sleeping at night shall be provided; (j) Opportunity for exercise shall be provided not less than once every third day; (k) Except for brief, temporary absence, a correctional officer or other staff member shall be present inside the correctional cell area at all times unless an emergency requires his absence; such correctional officer or staff member shall visually inspect all occupied correctional cells at least once every 30 minutes. 10. Employ a full-time Job Counselor for the purpose of coordinating all inmate job assignments within Marion Correctional Institution. All such assignments shall be made in accordance with the following procedures: (a) The Job Assignment Committees (1) In the stockade, initial job assignments shall be made by the Classification Committee. The Classification Committee shall be composed of the Associate Superintendent for Treatment or his designee, who will serve as chairman, the Inmate Personnel Officer, the Director of Psychological Services or his designee, and a representative from the Education Department. The Job Counselor shall be a non-voting member of the Classification Committee. In the Honor Dormitory, initial job assignments shall be made by the Honor Dormitory Placement Committee. The Honor Dormitory Placement Committee shall be composed of the Associate Superintendent for Treatment or his designee, who will serve as chairman, the Inmate Personnel Officer, and the Director of Psychological Services or his designee. The Job Counselor shall be a non-voting member of the Honor Dormitory Placement Committee. (2) In the stockade, job transfers shall be made by the Reclassification Committee. The Reclassification Committee shall be composed of the Associate Superintendent for Treatment, who shall serve as chairman, the Inmate Personnel Officer, a representative from Psychological Services, and a representative from Social Services. The Job Counselor shall be a non-voting member of the Reclassification Committee. In the Honor Dormitory, job transfers will be made by the Honor Dormitory Reclassification Committee. This Committee shall be composed of the Administrative Assistant to the Superintendent, the Inmate Personnel Officer, a representative from Psychological Services, and a representative from Social Services. The Job Counselor shall be a non-voting member of the Honor Dormitory Reclassification Committee. (3) The Job Counselor shall report all job vacancies as they occur to the appropriate job assignment committee. (4) These committees shall report directly to the Superintendent. The function of the job assignment committees shall be to make all initial job assignments and reassignments in the honor dormitory and the stockade. (b) Initial Assignments (1) The Classification Committee and Honor Dormitory Placement Committee shall make initial assignments of inmates to individual jobs in shops rather than to the shops for individual assignment by job supervisors, and no -job supervisor shall assign an inmate to a job other than the one designated by the job assignment committee. The decisions of the job assignment committees shall be made on the basis of information from the Job Description Manual and with the advice of the Job Counselor, whose duty it shall be to keep these committees informed of the content of all jobs in the prison and what jobs are available for initial assignment to inmates. An inmate need not be assigned to a specific job if such inmate is selected for an education program. (2) During the inmate orientation period and prior to an inmate’s initial assignment in the stockade, the Job Counselor shall meet with the inmate and be responsible for explaining to him the content of individual jobs and the job assignment system. The Job Counselor shall also obtain the abilities, qualifications and job goals of every incoming inmate. The Job Counselor shall have the authority to gain access to all available information on an inmate -including that developed through the inmate classification process utilized by the Department of Rehabilitation and Correction. The Job Counselor shall keep a record of all interviews with income inmates. (3) The Classification Committee and the Honor Dormitory Placement Committee shall keep records of all decisions as to initial job assignments, including votes as to the assignment of inmates, if such are necessary. These records shall be kept in the office of the Job Counselor. (c) Intra-Shop Transfers (1) A job supervisor shall have the authority to fill a position within his shop or job category from one job to another but only on the basis of the procedure outlined in this part (c). However, this procedure shall not apply to the filling of any jobs in the stockade which require honor or semi-honor status nor to any jobs in the honor dormitory designated as special security positions. All stockade honor and 'semi-honor status jobs and all honor dormitory special security job vacancies shall be filled in accordance with the procedure outlined in part (g) below. (2) All job vacancies in a shop with respect to which the job supervisor wishes to make an intra-shop transfer, other than temporary vacancies as defined below, must be posted by the job supervisor in a central place in the shop for at least three days, and job bid forms must be readily available to all inmates in the shop. (3) All inmates in the shop in which the vacancy has occurred shall be allowed to bid on the job by completing a job bid form prepared by the Job Counselor and submitting it to the Job Counselor or job supervisor. (4) After the three day posting period, the job supervisor shall have the authority to choose an inmate from the five inmates with most prison seniority (as defined in part (e) below) who have bid on the job. If the job supervisor chooses such an inmate, the decision of the job supervisor shall be posted in the shop for not less than the next five working days. (5) Copies of the original posting notice, all applications and the decision of the job supervisor shall be sent to the Job Counselor who shall report the vacancy, bids and decision of the job supervisor to the appropriate job assignment committee. The decision of the job supervisor shall become final if the appropriate job assignment committee takes no contrary action within two weeks or if the Superintendent does not disapprove of the assignment for security reasons. In the interim, the job supervisor shall have the authority to fill the vacancy with the inmate whom the job supervisor has chosen. (6) The job supervisor shall not have the authority to fill any position within his shop with any inmate who works under another job supervisor or in another shop. The job supervisor shall make no inter-shop transfer of inmates. (7) Temporary vacancies shall be filled at the discretion of the job supervisor by any inmate within his shop. A “temporary vacancy” shall be deemed to exist where an inmate presently holding a position is unable to perform his duties for 20 calendar days or less due to such occurrences as a furlough, an illness, the filling of another temporary vacancy, an emergency, or the like. Job supervisors shall keep records of all temporary transfers. If a temporary vacancy should last for more than 20 calendar days, the job supervisor shall notify the Job Counselor, who shall notify the appropriate job assignment committee. That job assignment committee then shall have the authority to determine whether or not the vacancy is temporary or permanent at its next regularly scheduled meeting. If the job assignment committee determines that the vacancy is permanent, the vacancy shall be filled under the procedure outlined in this part (c) or in part (d) below. (d) Inter-Shop Transfers (1) If a job supervisor is unable to or does not wish to fill a permanent vacancy from within his shop, he shall immediately notify the Job Counselor. The job supervisor shall be prohibited from making any inter-shop transfers on his own or from requesting individuals from another shop or from making requests for individuals to any job assignment committee. All inter-shop transfers shall be made exclusively under this part (d) except for the assignment of jobs requiring honor or semi-honor status in the stockade and jobs designated special security in the honor dormitory. These categories of jobs shall be filled in accordance with part (g) below. (2) Upon receipt of the notice, the Job Counselor shall post information concerning the vacancy on the next regularly scheduled working day in a central location or central locations which will inform all inmates of the opening. In addition, the information as to the opening should contain a detailed job description analysis or a reference to the Job Description Manual, which shall be readily available to all inmates. This vacancy notice shall be posted for at least three working days. All inmates shall be allowed to apply for the position on written application forms readily available to them and shall be submitted to the Job Counselor. The appropriate job assignment committee shall choose an inmate to fill the position from the top five senior inmates in prison seniority (as defined in part (e) below) who have applied, unless the job has been designated as a “skilled” job. If a job is designated as a skilled position in the Job Description Manual, the job assignment committee shall have the authority to choose an individual from outside the top five senior applicants. In such a case, however, the job assignment committee shall specifically state in its records why the job constitutes a skilled position and the reasons for selecting the particular inmate. In determining who shall fill a job, the job assignment committee shall review all records and qualifications of all applicants whom it is considering. It shall have the authority to hear witnesses. It shall obtain the advice of the Job Counselor. In all cases the decision of the job assignment committee as to who shall be assigned the job shall be posted in all designated central locations and a copy of such decision shall be sent to the affected job supervisor. All records shall be transmitted to and kept by the Job Counselor. (3) In regard to any inter-shop transfer, no job supervisor, on his own initiative, shall attempt to influence or interfere with a decision of the job assignment committees, unless the job assignment committee or the Job Counselor first seeks the opinion of the job supervisor. (4) If no inmate applies for the position and the vacancy is an entry level job, the Classification Committee or the Honor Dormitory Placement Committee shall fill the position with an inmate needing an initial assignment. If the job is not an entry level job, the information concerning the vacancy shall be reposted by the Job Counselor. If no one applies for the vacancy during the second posting period, the Reclassification Committee or the Honor Dormitory Reclassification Committee shall have the authority for a reasonable period of time to fill the position. The Job Counselor shall advise these committees in their selection process. (5) Any inmate may bid for a job posted by the Job Counselor, but preference may be given to inmates who have been on their current job for a period of 90 days. (e) “Prison seniority” or “seniority” as those terms are used in the assignment of inmates to jobs shall be defined in regard to inmates in the stockade as the length of time spent at Marion Correctional Institution for the term of incarceration presently being served. In the case of parole violators, prison seniority will accrue from the date of reincarceration at Marion Correctional Institution. In regard to inmates assigned to the honor dormitory, “prison seniority” or “seniority” shall be defined as the length of time spent at the honor dormitory at Marion Correctional Institution for the term of incarceration presently being served unless the period of time served in the honor dormitory has been interrupted and, in the judgment of the Job Counselor, the interruption should cause the accumulation of seniority to commence with the inmate’s reassignment to the honor dormitory- (f) Race (1) All shops employing four or more inmates and job categories employing four or more inmates within shops, as determined in the Job Description Manual, shall reflect the racial makeup of the ■prison population as nearly as possible within a 20% allowable deviation. (2) The job assignment committees shall be responsible to see that these racial goals are accomplished and that no segregation on the basis of race exists in any job assignments. The job assignment committees shall retain reports of the racial breakdown in shops and job categories for use in all of their deliberations. (3) The job assignment committees shall receive reports of racial breakdown in shops and job categories on no less than a quarterly basis from all job supervisors. If a job assignment committee finds that a pattern of racial discrimination exists, the committee shall have the authority to hold hearings, review records, and make affirmative decisions to eliminate all vestiges of racial discrimination in shops or job assignments. (g) Special Assignments (1) Any job in the stockade which requires honor or semi-honor status and any job in the honor dormitory which constitutes a special security position shall be filled by the Job Counselor in accordance with part (d) of these job assignment procedures except that the Superintendent must approve the assignment before it is effected. (2) The Superintendent or his designee shall determine which jobs in the stockade require honor or semi-honor status and which jobs in the honor dormitory constitute special security positions. (h) Other Provisions (1) Any job assignment decision or action of a job supervisor or the Job Counselor in connection with a job assignment shall be subject to the inmate grievance procedure. (2) The honor dormitory and stockade reclassification committees shall review annually every inmate who has worked in a particular shop for one year or more. The purpose of this review shall be to obtain the reactions of the inmate to the particular job and to determine if the job content has' changed. Prior to the review, the Job Counselor shall notify the inmate of such and explain to him the purpose of the interview. (3) The job assignment committees and the Job Counselor shall be responsible for classifying all new jobs and keeping current all job descriptions in the Job Description Manual. (i) Sanctions (1) Any job supervisor who fails or refuses to follow these guidelines shall be subject to the following disciplinary action by the Superintendent: a) First Offense: Corrective counseling or a written reprimand which shall be placed in the job supervisor’s personnel file. b) Second Offense: Not less than five days suspension without pay. c) Third Offense: Removal. (2) The determination of whether or not a job supervisor has violated any of the provisions of these guidelines shall be made at a hearing of the appropriate reclassification committee. The committee shall notify the job supervisor of the offense with which he has been charged. The job supervisor shall have the opportunity to appear before the committee. The committee shall hear witnesses and obtain all relevant evidence. The decision of the reclassification committee shall be forwarded to the Superintendent, who shall make the final determination. 11. Publish and distribute to all staff members at Marion Correctional Institution a staff manual containing written rules applicable to all staff prohibiting all forms of racial discrimination, harassment, intimidation and insult, coupled with sanctions for their violation ranging from written reprimand to discharge depending upon the severity and repetition of violation. The manual shall include a verbatim copy of this order. 12. Include on all staff job descriptions as well as on all employment application forms utilized by Marion Correctional Institution the following language: It is the firm policy of the Marion Correctional Institution to maintain a working atmosphere free of any discrimination on the basis of race, sex, religion and national origin. Discriminatory harassment, intimidation, or insult of staff, inmates or visitors to the institution will subject the employee to disciplinary action. The ability and willingness of the employee to abide by this policy and to refrain from such actions are essential requirements for employment. The employee’s performance with respect to this policy will be evaluated regularly as a major criterion for determining retention and promotion. 13. Require attendance of all incoming staff at an orientation program presenting Marion Correctional Institution’s commitment to the principle of racial equality, the fact that the staff member’s commitment to this principle is a criterion of hire, retention, promotion and assignment, and the obligations of the institution and each staff member under the Federal Equal Employment Opportunity Act. 14. Refrain from hiring or assigning to duty as a correctional officer at Marion Correctional Institution any person who has not both successfully completed the Marion Correctional Officer Psychological Inventory and as a result thereof been certified as eligible for employment as a correctional officer by the Department of Administrative Services of the State of Ohio. Nothing herein shall prohibit the occasional transfer of correctional officers from other Ohio correctional institutions so long as such transfers are not initiated or encouraged by the defendants in order to avoid the application of this paragraph. 15. Provide a program for in-service training of all correctional officers and of all staff members who have significant direct contact with members of the plaintiff class. The training program shall include training in human relations skills oriented toward the helping role of a correctional staff member and sensitivity to the nature, needs, aspirations and problems of the diverse racial, cultural, and ethnic groups which comprise the inmate population. Every correctional officer and every staff member having significant direct contact with inmates shall receive a minimum of 16 hours of in-service training during the course of each year of employment. A record of each staff member’s in-service training shall be maintained in his or her employment file. 16. Provide a program of orientation for incoming inmates on the Marion Correctional Institution’s commitment to racial equality, the inmate’s responsibility to abide by that principle, the fact that relevant evaluations of him will include his performance in that regard, together with instructions calculated to cultivate understanding of, and sensitivity toward, the nature, needs, aspirations and problems of the diverse racial, cultural, and ethnic groups which comprise both the inmate and staff populations of the institution. 17. Cause the Departmental Chief Inspector to conduct an annual audit of the extent of compliance with the provisions of this Order, to report his findings in writing to the Director, and to maintain a copy of all such reports. 18. Maintain racial balance in the assignment of beds and cells to members of the plaintiff class. The racial balance in each cellblock shall reflect the racial balance in the stockade population, plus or minus 5%; the racial balance in each stockade dormitory other than 2B, 5 and 5E (so long as those dormitories continue to be used to house educational and drug rehabilitation program participants) shall reflect the racial balance of the stockade population, plus or minus 15%; the racial balance in each dormitory in the honor dormitory shall reflect the racial balance of the honor dormitory, plus or minus 15%. The defendants shall be regarded as being in compliance with respect to the assignment of beds in the stockade dormitories other than 2B, 5, and 5E (so long as those dormitories continue to be used to house educational and drug rehabilitation program participants) so long as no more than one such dormitory fails to reflect the racial balance of the stockade population plus or minus 15%. Racial balance with respect to all dormitories and cellblocks shall be measured on a monthly basis by averaging the weekly racial balance for each cellblock and dormitory. Initial assignments to cells and beds shall be made in such a way as to integrate cell rows and dormitory bed rows. Voluntary cell or bed transfers shall be permitted only when such a transfer does not increase racial segregation in a cell row or a stockade or honor dormitory bed row. 19. Refrain from placing in any inmate’s file which is available to the Adult Parole Authority any reference or document relating to activities related to the filing of any grievance by that inmate or to any claim that the provisions of this Order have been violated. 20. Refrain from engaging in any act or practice which has the purpose or the effect of discriminating against any member of the plaintiff class because of his race, color, or national origin, except insofar as specifically required by this Agreement. 21. Refrain from engaging in any form of racial harassment, intimidation, or insult against any member of the plaintiff class. 22. Maintain inmate organizations known as Resident Councils both in the honor dormitory and in the main stockade at Marion Correctional Institution. The Stockade Resident Council shall consist of 18 inmate representatives, one from each housing unit to be elected by the inmates in that housing unit in the stockade. The Honor Dormitory Resident Council shall consist of six inmate representatives, three from each housing unit to be elected by the inmates in that housing unit of the dormitory. One alternate representative shall be elected for each member of the two Councils. In addition, in the event that a representative is transferred from one stockade housing unit to another or from one honor dormitory housing unit to another during his term of office, he shall be entitled to complete that term as a representative at large. The alternate representative in the housing unit from which the representative was transferred shall become the representative for that housing unit for the remainder of the term. Elections shall be held during the first week of February and during the first week of August of each year. Vacancies shall be filled in special elections. Each Council may adopt guidelines for its membership and operation subject to the approval of the Superintendent, who shall provide the Council with a written explanation for any disapproval. The function of the Councils shall be to study problems relating to the full range of institutional life and to recommend to the Superintendent courses of action to deal with those problems. In addition, the Councils may recommend the development of new programs and/or the adoption of new policies to improve the quality of institutional life. The defendants shall cooperate with the Resident Councils by permitting the Councils and committees thereof to meet on a regular basis, providing reasonable office, meeting, and filing space, providing reasonable office supplies to the Councils and their members and by meeting reasonable Council requests for information and for staff participation. The Superintendent and/or staff members designated by him shall meet on a frequent and regular basis with the Councils or committees thereof. The Superintendent or his designee shall provide the Council with a written response to all written Council recommendations. The Resident Councils shall be permitted to report their activities, including administrative responses to Council recommendations, to the general population on a regular basis. Such reports may be distributed in the form of an institutional newsletter or newspaper. The defendants shall refrain from engaging in any form of harassment, intimidation or insult against any member of the plaintiff class because of that person’s membership on a Resident Council. 23. Appoint a member of the administrative staff at Marion Correctional Institution to serve as Inspector of Institutional Services. The duties of the Inspector of Institutional Services shall be the following: (a) The Inspector of Institutional Services shall be primarily responsible for: (1) the inspection of Institutional Services; (2) the investigation and processing of grievances made by inmates; (3) the monitoring of the application of Institutional and Departmental rules affecting the services to inmates or the security of the institution; (4) personally conducting all training of institutional staff on the operation and purposes of the inmate grievance procedure; (5) personally conducting orientation programs for newly received inmates relative to the purposes and functions of grievance procedures. (b) The Inspector of Institutional Services shall engage in regular consultation with the Resident Councils referred to in paragraph 22 of this Order. (c) The Inspector of Institutional Services shall provide the inmate grievant with a written statement of the determination of his grievance and the reason for that determination. (d) The Inspector of Institutional Services may be given special assignments by the Superintendent or by the Departmental Chief Inspector; however, no such assignment shall be inconsistent with the duties set forth above. (e) The Inspector of Institutional Services shall have sufficient authority, civilian secretarial assistance, and resources to perform his duties in a confidential, impartial, and effective manner. (f) The Inspector of Institutional Services shall report directly to the Superintendent and shall also be required to submit all reports, documents, or other forms of accountability of his work to the Departmental Chief Inspector, monthly, or as otherwise required. (g) The Inspector of Institutional Services shall be an administrative assistant to the Superintendent and shall have the experience and special training needed to perform effectively the duties with which he is charged. 24. Employ an individual to serve as Chief Inspector for the Department of Rehabilitation and Correction pursuant to Administrative Regulation 5120-9-30. The office of the Chief Inspector as well as the duties and authority of that individual shall be as prescribed in that Administrative Regulation including any amendments, except that the duties given the Chief Inspector by this Order shall be limited to Marion Correctional Institution. 25. The defendants shall maintain an effective procedure for the resolution of inmate grievance arising at Marion Correctional Institution. Except as otherwise indicated in this paragraph, a grievance may relate to any aspect of institutional life. It may concern departmental or local institutional policies, procedures, rules and regulations or the application of any of these to the grievant. It may also relate to actions on the part of any staff member or inmate affecting the grievant. A grievance must be specific in its description of the complaint or problems. A grievance filed with the Inspector of Institutional Services must be individual in nature even though other inmates may be similarly affected. The grievance shall not act as an additional or substitute appeal process in connection with the Rules Infraction Board or Institutional Hearing Officer proceedings. A complaint relating to a specific disciplinary decision will not be considered. A complaint alleging punishment for violation of a rule not contained in the Inmate Manual or not properly posted, however, shall be grievable. In addition, complaints unrelated to institutional life such as legislative action, policies and decisions of the Adult Parole Authority, judicial proceedings and sentencing are not grievances within the scope of this paragraph. No claim involving subject matter exclusively within the jurisdiction of the courts or other agencies will be considered. Any complaint which is partly grievable and partly not grievable under this paragraph shall be considered except to the extent that it is not grievable under this paragraph. The Superintendent shall install locked mailboxes for inmates at Marion Correctional Institution to mail kites and written requests. Each inmate at Marion Correctional Institution shall receive either a written or an oral response to his kite or written request as soon as possible but in no event more than five working days after receipt by the appropriate staff member or administrator. Normal and routine requests and inquiries shall be handled informally. Any inmate wishing to file a grievance may do so, in writing or in person, by notifying the Inspector of Institutional Services of the nature of his grievance. The grievance resolution procedure shall be as follows: (1) Upon notification by an inmate, in writing or in person, of a grievance the Inspector of Institutional Services shall take such actions as are necessary to resolve the grievance and make a brief written description of the grievance and the resolution thereof in a log kept for that purpose. The log shall be maintained for inspection by the Superintendent and the Chief Inspector. (2) Either the inmate or the Inspector may require that the grievance be stated in detail on a form provided for that purpose. Upon request, the Inspector of Institutional Services will assist in the completion of that form. A copy of the completed form is to be given to the inmate, and the original retained by the Inspector of Institutional Services. (3) The Inspector of Institutional Services shall conduct all interviews, records research, or other investigation necessary to effect a proper resolution of the grievance. He shall maintain a written record of his investigations as well as his conclusions and recommendations or actions concerning the grievance. (4) Should the grievance not be resolved by the Inspector of Institutional Services within ten working days, he shall notify the inmate in writing of the reasons for the extension of time with a copy to the Chief Inspector. Any extension of time beyond 30 days must be approved by the Chief Inspector. (5) If the resolution of the grievance is not within the scope of authority of the Inspector of Institutional Services, he shall submit his findings and recommendations concerning the disposition of the grievance to the Superintendent for his endorsement, modification, or disapproval. Within ten working days, the Superintendent shall respond to the Inspector of Institutional Services. (6) In all eases the Inspector of Institutional Services shall provide the inmate with written notice of the resolution of his grievance and the reasons for that resolution. (7) Whenever the inmate is dissatisfied with the resolution of his grievance, he may, within five working days of receipt of written notice of the resolution of his grievance, either appeal in writing to the Chief Inspector upon a form provided for that purpose or seek outside review of his grievance on a form provided for that purpose. If the inmate appeals directly to the Chief Inspector, the latter shall notify the inmate within 20 working days of his decision on appeal. If the Chief Inspector requires additional time, he shall so notify the inmate in writing of the reasons for the extension with a copy to the Director. If the inmate seeks outside review of his grievance, the grievance and the proposed resolution thereof shall be reviewed by a panel of members of an Outside Review Committee. The Outside Review Committee shall consist of persons appointed by the Superintendent, but they shall not be affiliated in any way with the Department of Rehabilitation and Correction. The Outside Review Committee shall have access to any and all parts of the institution and shall have the right to hold hearings, call witnesses, and review records relevant to a grievance. The Outside Review Committee may develop guidelines for its own operation. The findings and recommendations of the Outside Review Committee or any panel thereof shall be in writing and copies of those findings and recommendations shall be forwarded to the Chief Inspector, the Inspector of Institutional Services, and the affected inmate/grievant. All recommendations of the Outside Review Committee or panel thereof shall be advisory only, and the Chief Inspector shall recommend a final resolution of the grievance to the Director. The Chief Inspector shall advise the inmate of the final resolution of such a grievance in the same manner as in other cases, with copies to the Outside Review Committee and the Inspector of Institutional Services. All decisions of the Chief Inspector shall be implemented as promptly as possible. (8) The Inspector of Institutional Services shall maintain for three years in his office all records relating to each grievance. The Inspector of Institutional Services shall be required to submit monthly reports summarizing his activities to the Superintendent and the Chief Inspector. The form and content of the reports shall be prescribed by the Chief Inspector. The Inspector of Institutional Services shall have the authority to interview any institutional personnel or inmates necessary to investigate grievances and to determine compliance with departmental and institutional regulations. The Inspector of Institutional Services shall also have access to all relevant records and files. The Inspector of Institutional Services shall make a continuing survey of all institutional areas to determine compliance with administrative and institutional regulations. The Inspector of Institutional Services shall submit a report of his findings to the Superintendent on a monthly basis or more often if necessary. False accusations and statements by inmates or staff may be the subject of disciplinary action when made in a knowing, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated. The burden of proof in such cases shall always rest with the institution. Failure of an inmate to substantiate his grievance accusations shall not, by itself, be used as grounds to initiate disciplinary action. 26. Before any court will enforce the practices, procedures or standards established by any paragraph of this Order on the ground that they are alleged to have been or are in the process of being violated, the claim of violation must have been presented as a grievance and appealed with or without outside review to the Chief Inspector or, in appropriate cases, filed with him. Regardless of how it is styled, any court action to enforce the practices, procedures or standards established in this Order shall be treated as a motion to show cause for civil rather than criminal contempt or as a motion to enforce the Order. Evidence of the actions and the reasons therefor taken at each step of the Grievance Procedure shall be admissible. If the defendant in any such action is adjudged to be in violation of the practices, procedures or standards established by this Order, the defendant shall be given a reasonable time to purge himself of contempt before sanctions are imposed. If within the reasonable time designated by the court the defendant brings himself into compliance with the practices, procedures or standards established by this Order, no sanctions will attach unless the court finds that the violation was willful, deliberate and in bad faith. It shall be a defense to a claimed violation of this Order that compliance with the particular provisions alleged to have been violated was rendered impracticable by an institution-wide emergency such as a riot or a work stoppage. IT IS SO ORDERED. MEMORANDUM AND ORDER DON J. YOUNG, District Judge. This action came to be heard upon the Fifth Report of the Special Master on the Defendants’ State of Compliance with the Court’s order of September 12, 1972. The parties have filed no objections to that report. The Court being fully advised in the premises, it is ordered that the report is in all respects confirmed. Said report is attached as an appendix hereto, 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 finds that the Defendants are in substantial compliance with the provisions of the Court’s order of September 12, 1972. In making this finding the Court wishes to acknowledge the cooperation which has been forthcoming from Director George F. Denton and Superintendent E. P. Perini over the course of the past two and one-half years. In addition, the Court wishes to express its appreciation to Messrs. Richard Walinski, Cary Rodman Cooper, and Niki Z. Schwartz, counsel for the various parties, whose contribution to the successful conclusion to this lengthy litigation is worthy of special comment. The Court further orders that the Special Master be dismissed, subject to his reviewing the state of the Defendants’ compliance with the Court’s final order in this cause and reporting his findings to the Court by December 31, 1978. For the purpose of that review and report, the Special Master shall have all of the authority granted to him by the Court’s order filed April 9,1975. In the event that the Special Master’s report discloses substantial noncompliance with the Court’s final order in this cause, the Special Master may be reappointed with such powers and duties as the Court may assign at that time. IT IS SO ORDERED. APPENDIX FIFTH REPORT OF THE SPECIAL MASTER ON THE DEFENDANTS’ STATE OF COMPLIANCE Submitted by Vincent M. Nathan Special Master INTRODUCTION Since the Court’s adoption of the Fourth Report of the Special Master on December 5, 1977, the defendants have remained in substantial compliance with those portions of the Court’s order of September 12, 1972, as to which findings of compliance have been made in earlier reports. In addition, compliance plans have been effected in connection with those portions of the Court’s original order with respect to which the defendants had not achieved compliance at the time of the Fourth Report. Thus, at the outset of this report the Special Master is able to state that the defendants have achieved substantial compliance with all of the provisions of the Court’s order of September 12,1972, and that, in his opinion, the time has arrived for the Court to terminate ongoing supervision of the defendants’ activities in this case. This happy state of affairs reflects credit upon all of the parties to this litigation and their counsel. Superintendent Perini and Director Denton, as well as members of their respective staffs, have continued -to manifest the spirit of cooperation which has characterized their behavior since the appointment of the Special Master in December, 1975. Late in April, 1978, when it became apparent that this report would reflect a state of substantial compliance, the Special Master met with counsel for all of the parties to begin discussions on the subject of the termination of the tenure of the Special Master. The results of those discussions are reflected in a proposed Agreement and Order to which reference is made throughout this report and which the Special Master recommends be adopted by the Court in substitution for its order of September 12, 1978. The proposed Agreement and Order incorporates the specific plans of compliance which the defendants have adopted in order to achieve compliance with the Court’s order. It provides, in its concluding paragraph, a mechanism for the resolution of all future disputes concerning the defendants’ compliance with the Court’s mandate in a way which is designed to minimize the Court’s further involvement in the affairs of the prison. In addition, the defendants have agreed to maintain on a voluntary basis until January 1,1979, the interim population limit imposed upon Marion Correctional Institution by the Court in its order of April 9,1976. Thereafter, if the defendants find it necessary to increase the population at M.C.I., they have agreed to do so in increments of no more than 20 inmates per month. As a result, the Court may feel confident that the practices, procedures, and standards which have been implemented as a result of this lengthy litigation will have a further reasonable period of time in which to become ingrained without the added stress which a precipitous, substantial increase in the prison’s population might create. Finally, the parties have agreed that the monitoring activities of the Special Master should cease for approximately six months after the Court’s adoption of this report, but that an on-site review by the Special Master should be conducted at the end of that period. As a result of that review, the Special Master will be in a position to report to the Court, by December 31, 1978, the extent to which the defendants have remained in compliance with the Court’s order without the benefit of judicial oversight through the Special Master. The willingness of Director Denton and Superintendent Perini to agree to all of these matters has convinced the Special Master that the defendants have no intention of lapsing into a state of noncompliance with the spirit and intent of the Court’s order of September 12, 1972. With the assistance of counsel who have displayed the highest form of professionalism in their vigorous representation of their clients’ interests in this litigation, the defendants have made it clear that they wish to continue to abide by the Court’s mandate. No less remarkable has been the willingness of the two Resident Councils to accept the proposed Agreement and Order, the voluntary temporary limit upon the population level, and the termination of active monitoring by the Special Master as a satisfactory resolution of this litigation. At a meeting of the two Councils on June 20, 1978, a unanimous consensus among the Council members was reached on this matter. That decision reflected well-placed confidence in the judgment of plaintiffs’ counsel who has achieved the objectives which his clients sought in filing this action. By focusing upon the substance of the Court’s order of September 12,1972, and avoiding the temptation to convert Taylor v. Perini into an instrumentality for the Court’s perpetual involvement in the affairs of the prison, the plaintiffs have demonstrated their good faith and their counsel has provided representation and guidance in the best tradition of the legal profession. The report which follows reflects developments which have occurred at Marion Correctional Institution from January through May, 1978. Reference will be made first to each of the mandatory provisions of the Court’s order of September 12, 1972, indicating the extent to which compliance has been maintained or achieved. Then a review of the inmate councils and the grievance procedure, the mechanisms adopted to deal with the requirements of the two prohibitory paragraphs of the Court’s order, will be undertaken. In developing the information contained in the report, the Special Master has continued to receive assistance from Mr. Fraser McAlpine, now a recent graduate of The University of Toledo College of Law, and for that assistance he wishes once again to express his gratitude. PARAGRAPH 1 Between January 6, 1978 and May 18, 1978, only two pieces of incoming legal mail were opened erroneously outside the presence of the inmate/addressee. This finding is confirmed by logs maintained by institutional mail room personnel and by the absence of any reports by inmates to the Special Master indicating a greater incidence of error. Given the large quantity of mail which is processed every day at the institution, it is clear that Superintendent Perini has been remarkably successful in implementing procedures to avoid error. With respect to the two errors which were made, Superintendent Perini sent letters of apology to both the senders and the addressees of the letters. This procedure has been incorporated in the proposed Agreement and Order to insure that parties affected in the future by such errors will be informed. Shortly after the adoption of the Special Master’s Fourth Report, the Chief Counsel of the Ohio Attorney General agreed to implement procedures for the mailing of responsive pleadings in inmate initiated litigation against state officials directly to the inmate/addressee. When the Special Master called the attention of the Chief Counsel to the fact that responsive pleadings continued to be sent to the Superintendent with instructions that a copy be delivered to the affected inmate, the Chief Counsel, on February 14, 1978, reiterated his original instructions to the Division of Criminal Activities. Since that time it appears that all such responsive pleadings have been mailed directly to the inmate. Thus, the defendants have maintained a state of com