Taylor v. Perini (477 F. Supp. 1289, 1979)

ORDER

DON J. YOUNG, District Judge.

This action came to be heard upon the Sixth Report of the Special Master on the Defendants’ State of Compliance with the Court’s order of July 20, 1978. 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.

NOW, THEREFORE, FOR GOOD CAUSE SHOWN, it is hereby

ORDERED that the defendants conduct a review of the Chief Inspector’s performance as outlined in the Conclusion of the Sixth Report of the Special Master on the Defendants’ State of Compliance and that they perform all actions to which they have agreed in the letter which is included as Appendix C in that report.

IT IS FURTHER ORDERED that sub-paragraph 10(d)(2) of the Court’s order of July 20, 1978, be amended to read as follows:

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 these forms 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. In the event that none of the five senior applicants for a job meets the basic requirements for the job contained in the Job Description Manual, the job assignment committee may select an inmate below the five senior applicants. In such a case, the job assignment committee shall fully document its decision.

IT IS FURTHER ORDERED that paragraph 10 of the Court’s order of July 20, 1978, be amended by the addition of the following language:

(h) Involuntary job transfers

(1) A disciplinary job transfer is one which is effected as a result of a disciplinary infraction or poor work performance. Any job transfer which is based upon a disciplinary infraction may be approved only when the infraction is job related and manifests an inability on the part of the violator to function in the job in question.

(2) A disciplinary job transfer may be recommended only by the Rules Infraction Board or the inmate’s job supervisor. All such recommendations shall be approved or disapproved by the Reclassification Committee in the case of transfers within the stockade and by the Honor Dormitory Reclassification Committee in the case of transfers within the hon- or dormitory.

(3) A job transfer for medical reasons may be recommended by the institution physician. Such recommendations shall be approved or disapproved by the Reclassification Committee in the case of transfers within the stockade, and by the Hon- or Dormitory Reclassification Committee in the case of transfers within the honor dormitory.

(4) The provisions of this subparagraph shall apply to both intrashop and intershop involuntary job transfers.

(5) The Superintendent may order a non-disciplinary job transfer when he determines that an inmate must be transferred to protect the safety and security of the inmate, of other inmates, or of the staff. In such instances, the Superintendent shall forthwith provide the Job Counselor, the appropriate reclassification committee and the affected inmate with written notice of the inmate’s removal from his job as well as with reasons therefor. No copy of this notice will be placed in the inmate’s institutional records. The Job Counselor shall consult with the affected inmate and assign him to a job which is agreeable to the inmate. In the event that such agreement is not forthcoming, the inmate shall be permitted to lay in for a period not to exceed 15 working days, during which time he may bid on all inter-shop job openings which are posted. At the end of 15 days, if the inmate has not been assigned a job, the appropriate reclassification committee shall assign him to a job. In this event, the inmate may bid on any intrashop job opening in the shop to which he has been assigned as well as on any intershop job opening, and other bidding inmates shall not be given a preference over the transferred inmate because the latter has been on his new job for less than 90 days at the time of his bid. In all instances of involuntary transfer under this subparagraph, the inmate’s record regarding the transfer shall only reflect that the transfer was made, e. g., “(date) — reassigned to (new job) from (former job).” Any involuntary transfer under this sub-paragraph shall be grievable.

IT IS FURTHER ORDERED that sub-paragraph 10(h) of the Court’s order of July 20, 1978, be renumbered 10(i) and that sub-paragraph 10(i) of the Court’s order of July 20, 1978, be renumbered 10(j).

The Court finds that the defendants have remained in substantial compliance with the provisions of the Court’s order of July 20, 1978. THEREFORE, FOR GOOD CAUSE SHOWN, it is

FURTHER ORDERED that the Special Master appointed in this cause on December 1, 1975, be dismissed.

SIXTH REPORT OF THE SPECIAL MASTER ON THE DEFENDANTS’

STATE OF COMPLIANCE

TABLE OF CONTENTS

Introduction.............................. 1291

Paragraph 4 Interference with Legal Mail .... 1292

Paragraph 5 Maintenance of Inmate Legal Services Program................. 1293

Paragraph 6 Provision of Supplies, Postage, and Photocopy Service in Connection with Legal Documents......... 1296

Paragraph 7 Censorship of Incoming Publications ....................... 1297

Paragraph 8 Imposition of Disciplinary Sanctions Without Fair Notice...... 1299

Paragraph 9 Correctional Cell Conditions..... 1304

Paragraph 10 Inmate Job Assignments....... 1307

Paragraph 11 Publication and Distribution of Staff Manual ................ 1313

Paragraph 12 Inclusion of Statement of Nondiscrimination Policy on Staff Job Descriptions and Employment Application Forms............... 1314

Paragraph 13 Staff Orientation............. 1314

Paragraph 14 Pre-hire Psychological Testing of Correctional Officers .......... 1314

Paragraph 15 In-Service Staff Training ...... 1315

Paragraph 16 Inmate Orientation............ 1316

Paragraph 17 Annual Audit by Chief Inspector 1317

Paragraph 18 Racial Balance in Housing Units 1318

Paragraph 19 Placing of Grievance References in Inmates’ Files.............. 1320

Paragraphs 20 and 21 Racial Discrimination, Harassment, ■ Intimidation, and Insult........ 1320

Paragraph 22 Resident Councils............. 1320

Paragraph 23 Inspector of Institutional Services 1326

Paragraph 24 The Chief Inspector........... 1328

Paragraph 25 The Grievance System......... 1328

Conclusion... ............................ 1334

Appendix A . ............................ 1335

Appendix B .. ............................ 1337

Appendix C .. 1386

INTRODUCTION

On July 20, 1978, the Court adopted the fifth report of the Special Master on the defendants’ state of compliance with the Court’s order of September 12, 1972. On that same date the Court issued an order, based upon an agreement entered into among the parties to this litigation, which abrogated its earlier order and established new and precise standards against which to measure compliance. In addition, the Court found that the defendants were in substantial compliance with the order of September 12, 1972, and ordered 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.”

Between July 20, 1978 and mid-December, 1978, the Special Master had little contact with members of the staff of Marion Correctional Institution as well as of the Department of Rehabilitation and Correction. He made no visits to the prison. He did receive and answer correspondence from inmates, but he generally made no effort to affect the defendants’ conduct regarding complaints which were brought to his attention.

On December 12,1978, the Special Master met with the departmental Chief Inspector in Columbus in order to review the activities of that office. During the following three days, he conducted an on site inspection in Marion. In this he was assisted by Mr. Fraser McAlpine, a former assistant, who made himself available for this purpose at the request of the Special Master. During this inspection, the Special Master and Mr. McAlpine interviewed a large number of staff members and inmates, met with both resident councils, and studied and copied voluminous records maintained in the prison. During every phase of this inspection, the Superintendent and his staff were both courteous and cooperative, and all requests for data and information were met promptly.

The Special Master conducted a second on site inspection on December 28-29, 1978. At this time he was assisted by Mr. Daniel Cron, a third year law student at The University of Toledo. The format for the second visit to M.C.I. was much like the first, and that trip permitted the Special Master to obtain more specific information which was needed as a result of his examination of the data and information gained two weeks earlier.

On January 1, 1979, Mr. Cron visited M.C.I. for the purpose of conducting an audit of law library holdings in the stockade and the honor dormitory. The report that follows is based upon the information gained during the course of these three trips and through examination of records maintained by the defendants and provided to the Special Master.

On February 15,1979, the Special Master issued a draft copy of this report to all counsel. The discussions and negotiations that followed resulted in some amendment and produced agreement regarding the appropriate steps to be taken to correct the deficiencies and to resolve the problems reflected in this report. Those steps are described in the conclusion of this report, p. 1334 infra.

The Special Master wishes to express his appreciation to Mr. McAlpine and to Mr. Cron for their assistance in conducting this review of the defendants’ state of compliance, and particularly to Mr. McAlpine for the role that he played in the preparation of the text of this report. Since his association with the Special Master in January of 1977, Mr. McAlpine has sustained a heavy burden of responsibility in connection with this case and has discharged that responsibility with exceptional professionalism and effectiveness.

The purpose of this report is to describe the defendants’ state of compliance or noncompliance with the Court’s order of July 20, 1978. The injunctive portion of that order commences with Paragraph 4 and concludes with Paragraph 25. Corresponding numbers have been utilized throughout the text of the report to identify the provision under consideration. Throughout the body of the report, the Special Master has related the information he learned during the course of his review, has recommended in some instances that the defendants take or be required to take certain actions to achieve a higher level of compliance, has suggested that several revisions be made of the language of the Court’s order of July 20, 1978, and has made findings regarding the defendants’ state of compliance with each paragraph of that order.

PARAGRAPH 4

Interference with legal mail. Only three significant incidents of improper handling of incoming legal mail were reflected by logs maintained by the institution’s mail room personnel. In two of these cases, the envelopes bore return addresses of persons who identified themselves as attorneys, and letters of apology were sent by the Superintendent to these individuals. In the third case, the return address was simply “clerk” and the envelope bore the legend, “legal mail.” In this case it was not possible for the Superintendent to send a letter of apology without reading the letter, and he did not do so. Two other incidents reflected on the error log, the opening of letters addressed by inmates to attorneys and “returned to sender,” are explained by the fact that mail room personnel are not accustomed to legal mail in that form. No inmate complained to the Special Master of any incident of improper handling of legal mail not reflected by the institution’s error log.

In view of the large quantity of mail received at M.C.I. on a daily basis, the record of compliance with this provision of the Court’s order is remarkable.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with Paragraph 4 of the Court’s order of July 20, 1978.

PARAGRAPH 5

Maintenance of inmate legal services program. The Special Master has discovered no evidence of interference, inappropriate sanctioning, or harassment of inmate law library clerks. Likewise, no other inmate has complained to the Special Master of such treatment resulting from efforts to assist another inmate in the preparation, conduct, or defense of legal actions.

Inmates are provided with a place to work on legal matters in both law libraries in the institution. Law library hours in the stockade are 5:30 p. m. until 8:15 p. m. on Monday through Friday, 9:15 a. m. until 10:45 a. m. and 12:30 p. m. until 3:15 p. m. on Saturday, and 1:00 p. m. until 3:45 p. m. and 4:30 p. m. until 8:30 p. m. on Sunday. Law library hours in the honor dormitory commence at approximately 5:30 a. m. and extend through 11:00 p. m., less two hours per day when the library is closed. In the stockade at least, if an inmate law clerk needs to work with an inmate during the latter’s normal working hours, the law clerk may request approval of a pass by the Director of Education, and such passes generally are approved. (Some difficulty has been encountered, apparently, when officers at the shop area crash gates have refused to honor these passes.)

At the time of the Special Master’s on site inspections of the institution in December, 1978, neither law library in the institution contained all of the law books required by this paragraph of the Court’s order. In an audit conducted on September 20 and 22, 1978, the Chief Inspector of the Department of Rehabilitation and Correction discovered that certain required law books were not present, and on September 28, 1978, the departmental Legal Services Assistant issued instructions to the Business Administrator at Marion Correctional Institution to order the missing volumes. According to the Business Administrator’s response of October 6, 1978, all of the mandated volumes had been ordered by that date. The volumes found to be missing and the action reported by the Business Administrator are as follows:

Stockade Library

TITLE Action Taken bv Business Administrator

Volumes 273-299, Federal Reporter (2d series) Ordered August 30,1978

Volumes 180-199, Federal Supplement Ordered August 30,1978

Rules of Local Federal Courts Direct purchase order in process, October 6.1978

Current supplement for Title 29, Page’s Ohio Revised Code Direct purchase order in process, October 6.1978

Schroeder & Katz, Ohio Criminal Law Practice and Forms Ordered August 30,1978

Cohen, Legal Research in a Nutshell Ordered August 30,1978

Israel, LaFave, & Wayne, Criminal Procedure in a Nutshell Ordered August 30,1978

Sokol, Federal Habeas Corpus Direct purchase order in process, October 6.1978

Honor Dormitory Library

TITLE Action Taken bv Business Administrator

Volumes 273-299, 538, 539, Federal Reporter (2d series) Ordered August 30,1978

Volumes 180-199, Federal Supplement Ordered August 30,1978

Rules of Local Federal Courts Direct purchase order in process, October 6, 1978

Titles 1, 19, 21, 23, 25-27, 29, 37, 51-53 and current supplements as well as Appendix and Civil Rules volumes, Page's Ohio Revised Code Direct purchase order in process, October 6, 1978

Schroeder & Katz, Ohio Criminal Law Practice and Forms Ordered August 30,1978

Shepard’s United States Citations (“Ivory Special Intermediate” supplements and second part of 1978 Cumulative Supplement) Direct purchase order in process, October 6, 1978

Supplement to Palmer, Constitutional Rights of Prisoners Ordered August 30, 1978

Sokol, Federal Habeas Corpus No action indicated

The Chief Inspector conducted a second audit of the institution’s compliance on November 21, 1978. In his report of that audit, the Chief Inspector stated that

the required law books and updating supplements have been ordered, but only about half of the missing volumes have been received at the institution thus far. The remaining volumes are expected to arrive in the near future.

On January 1, 1979, the Special Master’s assistant conducted a survey of holdings in the two institutional libraries. As of that date the only materials listed above that had been received at M.C.I. were Schroeder & Katz, Ohio Criminal Law Practice and Forms (stockade and honor dormitory), Page’s Ohio Revised Code Annotated, Titles 1,19, 21, 23, 25-27, 29, 37, and 51-53 (honor dormitory), the current supplement for Title 29 of Page’s Ohio Revised Code Annotated (stockade), and the 1974 — 1978 statutory supplement (Ivory Special Intermediate) and the second part of the 1978 Cumulative Supplement to Shepard’s United States Citation. (Still missing in the honor dormitory is the 1976-1978 Ivory Special Intermediate case supplement to these materials.) In addition, it appears that the second edition of Sokol, Federal Habeas Corpus is the latest edition of that work, and both libraries contain a copy of this treatise.

In addition to the missing volumes disclosed by the Chief Inspector’s audit, the Special Master’s assistant found the following materials missing at the time of his inspection on January 1, 1979:

Stockade Library

42 United States Code Annotated §§ 1981-1984

Volume 574, Federal Reporter 2d series

Volumes 349-355, Northeastern Reporter 2d series (Ohio Cases)

Titles 25-27, Page’s Ohio Revised Code Annotated

Page’s Ohio Revised Code, up to date inserts for “Current Material” Binder

Honor Dormitory Library

Binder and # 4 Legislative Bulletin for “Current Material” of Page’s Ohio Revised Code Annotated

According to information received from Professor Rhoda Berkowitz, Associate Law Librarian at The University of Toledo, deliveries from major law book publishers should occur, in all but the most exceptional circumstances, within 30 days of the publisher’s receipt of the order.

Three inmate law clerks have been assigned to the stockade law library and two such clerks have been assigned to the honor dormitory law library. Stockade law clerks are permitted to assist inmates in the library itself and may go to the infirmary area to assist inmates requesting legal advice. They are not permitted, however, to have contact with inmates incarcerated in the correctional cell area in the institution.

Although a separate job classification exists for law clerks in the stockade, no such job classification appears in the honor dormitory job manual. Inmate law clerks in the latter unit are included within the general classification, “dormitory help.” As a result, under existing job procedures, it is possible for an inmate law clerk in the honor dormitory to be assigned by the dormitory maintenance supervisor to duties outside the law library. This possibility came to the attention of the Special Master when a general library clerk in the honor dormitory was assigned on a temporary basis to duties outside the library because of his classification as general dormitory help. In order to prevent the assignment of law library inmate clerks to other unrelated duties that may interfere with the level of legal assistance provided in that unit, law clerks in the honor dormitory should hold a separate job classification which limits their working activity to the law library. In addition, there is no reason for honor dormitory inmate law clerks to be denied specific job classifications as law clerks since this is the existing practice with respect to inmate law clerks in the stockade.

By and large, supplies of paper, pens and other necessary items are made available in the law libraries. Lengthy delays sometimes occur following an order, and requisitions for law library supplies examined by the Special Master reflect that numerous standard items often are out of stock. At the time of the Special Master’s on site inspection on December 13-15, 1978, adequate supplies were on hand in both libraries. This resulted, in all probability, from a memorandum dated December 6,1978, from the Legal Services Assistant of the Department of Rehabilitation and Correction to the Business Administrator at M.C.I.:

If the office supplies requested and ordered by the inmate law libraries have not yet been obtained from State Office Supply, take the necessary action to purchase the supplies and get them delivered to the law libraries this week.

This memorandum tends to confirm statements made by the inmate law clerks to the effect that necessary supplies often are not available at the time that they are ordered.

FINDINGS REGARDING COMPLIANCE

No finding of substantial compliance with Paragraph 5 can be made until the defendants obtain all required legal materials for both law libraries. In addition, steps must be taken to maintain adequate supplies of paper, pens, typewriter ribbons, tape and other necessary supplies for the law libraries so that orders can be filled promptly. Finally, a separate and specific job classification for honor dormitory inmate law clerks should be developed and included in the honor dormitory job manual. In all other respects, the defendants are in compliance with the provisions of this paragraph of the Court’s order.

PARAGRAPH 6

Provision of supplies, postage, and photocopy service in connection with legal documents. As was pointed out in the discussion of Paragraph 5, supra, supplies of paper are provided to the inmate law library clerks both in the stockade and in the honor dormitory. According to the individuals assigned to these positions, this paper is made available to inmates in the general population upon request so long as adequate supplies are available. On occasion, sufficient paper is reported not to be available, and requisitions for supplies for the two law libraries confirm this. Pens are supplied to the law libraries in very small quantities that are sufficient only to meet the needs of the law library clerks themselves.

A “legal kit,” consisting of one legal pad, five sheets of legal size carbon paper, 10 sheets of legal size, onion skin paper, 10 sheets of legal size, bond paper, five sheets of 8V2" by 11" carbon paper, 12 sheets of 8V2" by 11" bond paper, and a ball point pen, is for sale in both commissaries in the institution. The cost of the kit is $1.50. In a consent judgment entered by Judge Joseph Kinneary on June 28, 1978, in the case of Cox v. Patterson, C-2-75-661 (S.D.Ohio 1978), inmates at the Columbus Correctional Facility who earn or receive less than $5.00 per month and who do not have on deposit at any time during the previous 30 days more than $4.99 are entitled to one legal kit per month free of charge. On July 11, 1978, in a memorandum signed by the Director of the Department of Rehabilitation and Correction and his legal assistant, all managing officers — including Superintendent Perini — were informed that this policy would be applied throughout the entire department and that inmates eligible for free legal kits would also be provided with free postage for all documents or correspondence directed to a court of law.

All inmates at Marion Correctional Institution are assigned to jobs that result in monthly payments of $5.00 or more; thus, none are entitled to free legal kits or postage in accordance with the policy directive resulting from Cox v. Patterson. Nonetheless, since the Court’s order in Taylor v. Perini requires that legal supplies be made available on credit whenever the inmate is unable to pay for such supplies from his institutional account, the legal kit should be made available on credit to any inmate whose account balance at the time he seeks to make the purchase at the commissary is less than $1.50. By limiting an inmate to one legal kit per week on credit, the defendants are assured that sufficient funds will be credited from the next state pay to cover any accumulated indebtedness.

The availability of legal kits in both commissaries is mandated by Administrative Regulation 5120-9-48, and the departmental policy in this regard is confirmed by the policy statement directed to all managing officers on July 11, 1978. Availability of the kits generally should be regarded as a requisite for compliance with this paragraph of the Court’s order in Taylor v. Perini. The availability of these legal kits in the commissary, whether or not on credit, will not relieve the defendants of their obligation to continue to make available adequate quantities of paper and other supplies in the two law libraries in the institution.

Records submitted by the defendants indicate that postage, including certified and special delivery postage, continues to be made available on credit for the mailing of legal papers by inmates who do not have the necessary funds to purchase such postage. Likewise, notarial service continues to be provided, without charge, by several staff members, and the Special Master received no significant complaints about the availability of this service. Finally, photocopy services are provided through an outside commercial photocopy company, and records submitted to the Special Master indicate that the service is being used on a regular and widespread basis by inmates. The cost of this service is $.12 per page, the usual and customary charge for such services in Marion, Ohio.

FINDINGS REGARDING COMPLIANCE

The defendants are in compliance with those portions of Paragraph 6 that require the provision of notarial services, postage, and photocopy services, without charge or on credit, for the preparation and mailing of legal documents and legal correspondence. With the implementation of the policy regarding legal kits discussed above, the defendants will be in full compliance with respect to the provision of paper, pencils, and pens as well.

PARAGRAPH 7

Censorship of incoming publications. Between July 20, 1978 and December 1, 1978, the institutional Publications Review Committee considered 16 cases that were referred to it. In six of these cases, involving 10 publications, the printed material was excluded by unanimous vote of the committee; in four cases, the material was admitted (in three cases by a unanimous vote and,, in one case by a vote of two to one); in five cases, the material was sent out of the institution or destroyed at the inmate/recipient’s request without a hearing; finally, in one case one publication was excluded by a unanimous vote and one publication was admitted by a vote of two to one.

The following chart indicates the titles of excluded publications as well as the grounds for exclusion relied upon by the committee:

TITLE GROUNDS

Honkey Magazine Obscenity

215 Choice Men Obscenity

Best of Golden Boys Obscenity

Hard Boys Obscenity

Chicken Pickup Obscenity

Popular Mechanics (9/78) Inflammatory

Beaver Feaver Obscenity

Classy Asses Obscenity

Screw # 499 Obscenity

Hustler Magazine (10/78) Obscenity

Purple Magazine (10/78) Obscenity

All of the excluded materials had been sent out of the institution or destroyed by the time of the Special Master’s on site inspection in December of 1978. Many of the same titles, however, were evaluated by the Special Master in connection with previous reports, and it is probable that those publications that were excluded on the basis of obscenity fall within the guidelines promulgated by Paragraph 7 of the Court’s order. In the case of the September, 1978 issue of Popular Mechanics, the issue contained an article on the fabrication of weapons. For this reason, it was properly ex-cludable under the definition of “inflammatory” contained in the Court’s order of July 20, 1978.

The institutional committee consists of three staff members, only one of whom has primary responsibility in the area of custody. In all cases, the affected inmate received notice of the interim prohibition and the reasons therefor by the end of the working day following receipt of the material in the institution. In those cases in which hearings were held, they took place within one week of the receipt of the publication; indeed in virtually all cases the hearing was held within two or three days of receipt. Inmates were advised of their right to attend the hearing on the notice informing them of the interim prohibition, and in five cases the inmate did so appear. The institutional committee informed inmates of their right to appeal in all cases of exclusion and provided inmates with proper appeal forms upon request. Two exclusions resulted in appeals to the departmental Publication Screening Committee, and in both cases the exclusions were upheld. In both of these cases the departmental committee provided the affected inmate with notice of its decision on appeal within 28 working days of receipt of the appeal. Finally, all records of institutional committee actions are maintained in a file by the committee chairman, and a perusal of files of inmates involved in cases of exclusion satisfied the Special Master that no records of such committee proceedings are kept in any inmate’s file.

The Special Master feels some concern about the phenomenon of sending out or destroying printed material at the inmate’s request without a hearing which occurred in five cases. While the Special Master is satisfied that all of these inmates were made aware of their right to a hearing and that all waived such a hearing and requested the disposal of the materials, the institutional committee chairman must take care to be certain that the waiver in such cases is truly voluntary. The inmate should sign a written waiver in these instances and the committee chairman should schedule a hearing unless he is completely satisfied that the inmate’s decision is free of coercion, real or imagined.

In October, 1978, the Director of Social Services, who serves as chairman of the institutional Publications Review Committee, caused the departmental Publication Screening Committee’s “to be permitted” and “not to be permitted” lists to be posted in various locations within both the stockade and the honor dormitory. The direction which accompanied these lists instructed personnel to forward to the inmate/addressee any publication on the “to be permitted” list and to forward to the Publications Review Committee any publication on the “not to be permitted” list. Although it appears that the “not to be permitted” list was being used only for the purpose of initial screening, the Special Master pointed out to the chairman of the Publications Review Committee that Paragraph 7(e) of the Court’s order of July 20, 1978, provides that such a list “shall not be considered by the Institutional Publications Review Committee in making its decisions.” (emphasis added) It was the opinion of the Special Master that this language prohibited any reference to the “not to be permitted” list by institutional officials charged with screening incoming publications. As a result, on November 6, 1978, the chairman of the institutional committee sent a memorandum to all affected staff requiring the removal of the “not to be permitted” list from bulletin boards throughout the institution. In the future, according to the committee chairman, the “not to be permitted” list will be destroyed upon its arrival in the institution.

Any possible reliance by M.C.I. officials upon the departmental “not to be permitted” list has been a matter of concern to the Special Master because the list continues to proscribe publications which are clearly admissible under the standards established by the Court’s order of July 20, 1978. On October 24, 1978, for example, the item “personal pictures” was added to the list. Other proscribed publications include Knight’s Black Voices from Prison, Freedom Now, a publication of the Socialist Workers Party, Lesbianism and the Women’s Movement, and Malcolm X Talks to Young People. In the opinion of the Special Master, the emergence of a policy calling for the destruction of the “not to be permitted” list upon its arrival at M.C.I. is a fitting if somewhat ironic denouement.

FINDINGS REGARDING COMPLIANCE

It is the finding of the Special Master that the defendants have remained in full compliance with the provisions of Paragraph 7 of the Court’s order.

PARAGRAPH 8

Imposition of disciplinary sanctions without fair notice. On September 7, 1978, the new inmate manual was distributed to all residents in the stockade; the new honor dormitory manual was distributed to residents in that unit on November 8, 1978. The purposes of these new manuals were to provide a comprehensive set of rules and to apprise inmates of the sanctions which are applicable to violations thereof. In addition, the new manuals contain a verbatim copy of the Court’s order of July 20, 1978.

In order to determine the extent to which these new manuals appeared to be providing notice of all offenses with which inmates are charged, the Special Master reviewed a large number of conduct reports issued under Class 11-16, “any act not specifically set forth herein, knowingly done which constitutes an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself,” Class III — 14, “aiding and abetting Class III rule violations” and Class III — 15, “violation of any other published institutional rules, regulations, or procedures.” All Class 11-16 and Class III — 14 conduct reports reflected alleged conduct that is proscribed in the inmate manual. The same is generally true with respect to Class III-15 conduct reports. In this category, however, a number of inmates were charged with and convicted of taking extra food in the stockade cafeteria. There is no reference to this subject in the cafeteria rules in the stockade inmate manual.

While it appears that the institution’s staff is making a conscientious effort to relate conduct reports to rules contained in the inmate manuals, the omission of any reference to extra helpings of food in the cafeteria rules points up the need to revise the manuals as needed and to post other written rules in areas where they will be seen by inmates. Particularly with the issuance of new administrative regulations outlining the nature of Class II and Class III offenses, as well as disciplinary hearing procedures, the need for updating has become all the more apparent. In particular, these manuals — because they are the first effort of the administration to provide a comprehensive set of rules of conduct — contain occasionally misleading or incorrect information in spite of the sincere efforts of the Superintendent and his staff to achieve clarity and accuracy. A careful and thorough revision at this point is likely to produce a manual that will be usable for a substantial period of time.

One extremely serious violation of Paragraph 8 did occur during the period between the issuance of the Court’s order of July 20, 1978 and December 13, 1978, when the Special Master conducted the first of his two on site investigations. On December 5, 1978, an inmate in the honor dormitory delivered to a staff member an envelope addressed to an inmate in the stockade, with a request that it be delivered via interdepartmental mail. At or about the same time, the honor dormitory inmate sent a letter, via inter-departmental mail, addressed to the Chairman of the Stockade Resident Council. Both letters were intercepted by the Superintendent who, on December 6, 1978, sought and obtained from Director Denton permission to read the contents of the envelopes. The basis for the request for permission to read was as follows:

Several Honor Dorm inmates have informed us that certain Honor Dorm inmates were going to circumvent our regulations in an effort to make us appear in a bad light when Special Master Vincent M. Nathan comes to the institution next week to make his final report on our compliance with Taylor v. Perini.

We wish to examine the contents of these envelopes in an effort to forestall any difficulties in this area.

The envelope addressed to the Chairman of the Stockade Resident Council contained a copy of a letter written by honor dormitory inmates to the Superintendent announcing the resignation of the Honor Dormitory Resident Council. The envelope addressed to another inmate in the stockade contained a copy of a publication entitled “The Jailhouse Lawyer’s Manual” as well as a personal letter from the honor dormitory inmate to the stockade inmate. The pertinent portion of the text of that letter was as follows:

I’m going to try to bring this grievance system to a stop out here, because it is not working and this is the only way that (I see) we can show the Court that it’s not working. If no inmate here at M.C.I. file grievance, then the Court is going to ask why?

And then we can say that it’s because the system do not work. I received a letter from Tripp today stating that if an inmate wants to file an appeal with the Chief Inspector, the appeal must go through his office. You know that I do not like this approach and I don’t think an appeal should have to go through Tripp’s officer if the inmate don’t want it to, we only have 5 days to appeal and Tripp can say he never received the appeal or anything else he want to say about the appeal. Like I sent him an appeal to mail to the Chief Inspector on 12/1/78 and he sent the appeal back today and stated that I would have to put a stamp on it and mail it myself, that cost-ed me two (2) days of my appeal time. I’m going to talk to (the Chairman of the Stockade Resident Council) about stoping the grievance system in there see what he thinks about it.

On December 19,1978, following the Special Master’s first on site inspection in Marion but before his second, a conduct report was prepared and issued against the honor dormitory inmate. Before issuing the conduct report, the Associate Superintendent for Treatment Services sought and obtained advice on the matter from a person serving as in-house counsel for the Department of Rehabilitation and Correction. Having been advised that, consistent with the Court’s order in Taylor v. Perini, the honor dormitory inmate could be charged with a disciplinary offense, the Associate Superintendent issued the following conduct report. Only the names of inmates referred to in the body of the conduct report are omitted.

At the above time and date Inmate _requested that Sgt. W. Robinson, MCI Mail Supervisor, deliver an envelope via inter-departmental mail to an inmate at MCI Main Stockade. The hand print-

ed name was Mr.__The envelope was dated 12-5-78 and marked and circled “legal papers”. Inter-departmental mail had been used in the past to smuggle contraband into Correctional Cells and to solicit unauthorized business activity. Also, the named inmate (addressee),. had been cited by RIB for attempting to use the mails to send U.S. cash currency to a person in the State of New York. Sgt. Robinson brought the envelope to the Superintendent’s Office expressing his concern, as he felt something was not correct. On 12-6-78 Supt. Perini requested to view the contents of the envelope as the MCI Administration had received information that attempts would be made to discredit MCI and it’s attempt to continue compliance in Taylor vs. Perini C-69-275 prior to the audit of the Special Master Professor Vincent M. Nathan, who was scheduled to be at MCI on 12-13, 14, 15-78. The Director of DR & C gave permission to view the contents (note: 1st Class U.S. Mail Service was not involved). The envelope contained a 48 page manual entitled; The Jailhouse Lawyer’s Manual, a letter addressed to _, dated 12-5-78, indicating the address of Inmate_brother_in _, _ (who was involved with the paying for the making of jewelry boxes in violation of MCI Arts and Crafts Policy), the whereabouts of a typewriter and a categorical statement of the sender that he was going to try to stop the Grievance Procedure at MCI which was authorized by the Federal Court in Taylor vs. Perini and the Administrative Regulations of DR & C, specifically; AR # 5120-9-31. Specifically the writer stated he would try to stop the grievances at the Honor Dormitory and would (5th paragraph) talk to _ (Chairman of the Main Stockade Resident Council) about stopping the grievance system in the Main Stockade at MCI.

In addition to the material to _, another envelope was in the larger envelope containing a carbon copy of a letter sent to Supt. Perini by_under the date of 12-4-78 and was sent to Stockade Council Chairman- This carbon copy advised Supt. Perini that the Honor Dormitory Council had resigned their elected positions at the Honor Dormitory Affairs Council. It may be noted that in August of 1978 the Special Master in his 5th Report of Compliance, required of the MCI Administration to make the .grievance (system) work as well as the Inmate Councils at the Honor Dormitory and the Main Stockade. Based on the above information it is felt that Inmate _failed to follow the dictates of the Federal Court and higher authority, attempted to disrupt the operations of the MCI Grievance Procedure and attempted to enlist others into a scheme to establish a plan of action to show the Federal Court that the grievance system does not work at MCI. As the Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order, we are submitting the direction of the Special Master in his 5th Report on Compliance, page 71, section (8), paragraph 4;

“False accusations and statements by inmates or staff may be subject to disciplinary action when made in a knowingly, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated.”

The honor dormitory inmate was charged with violation of the following rules of conduct: Class II — 1 (Disobedience of a direct order, which shall include aggravated insubordination); Class 11-16 (Any act not specifically set forth herein, knowingly done which constitutes an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself); and Class 11-22 (attempt to violate a Class II rule). The Class II rule which the inmate was accused of attempting to violate was Class 11-21 (conspiracy to violate a rule of conduct).

At this point it should be noted that on October 20,1978, an amended version of the Department’s Administrative Regulation 5120-9-06 prescribing rules of conduct was issued. In that amended version, Class lile became, “any act not specifically set forth herein, knowingly done which constitutes an obvious threat to the security of or a disruption to the operation of the institution, its staff, other inmates, or the inmate himself.” (new language emphasized). At the time the conduct report in question was issued, these amended regulations had not been substituted for the former regulations contained in the inmate manuals, although the Special Master was told that the new regulations had been placed by that time in the two law libraries and in copies of the Administrative Regulations which are required to be kept in each of the housing units in the institution. In view of the fact that inmates were never notified that the language contained in their manuals was no longer controlling, they were entitled to rely upon the information contained in the manuals and were not required to double check that language against the text of the administrative regulations themselves.

This change of text is important because the conduct report itself describes Class II-16 as “an act knowingly done which could cause the disruption to the operations of the institution.” Apart from the fact that action which “could cause” a disruption should not be punishable under even the new text of the rule, the charging staff member’s reliance upon the amended language constitutes the clearest example of an attempt to impose a disciplinary sanction without fair notice of the rule which is alleged to have been violated.

On the same day that the conduct report was issued, the honor dormitory inmate was brought into the stockade for a hearing before a hearing officer. The inmate pleaded not guilty, claiming that “these were only his thoughts, not his intent.” The hearing officer referred the matter to the Rules Infraction Board with the notation that the charging staff member was to be present.

On December 21,1978, the honor dormitory inmate was brought before the Rules Infraction Board. He pleaded not guilty and summarized his own position as follows:

I am entitled to my own opinions and feelings. I felt the grievance procedure wasn’t working. I made the statement that just because we had a large number of grievances doesn’t mean it was working. I was just expressing my feelings of which I’m entitled to. I am not trying to stop the grievance system, I was just expressing my opinion.

The inmate was found guilty, apparently on all charges, and the Rules Infraction Board recommended that the inmate’s honor status be rescinded. Pending review by the Honor Placement Committee which reviews such recommendations, the inmate was assigned to a housing unit in the stockade. The inmate appealed to the Superintendent, who affirmed the decision of the Rules Infraction Board. At this point, the inmate filed an appeal with the Director of the Department of Rehabilitation and Correction. While that appeal was still pending and before any action had been taken by the Honor Placement Committee, the Special Master learned the facts which have been related above and discussed the matter with the Superintendent, the Chief Inspector, and special counsel employed by the Department for this litigation.

By no stretch of the imagination did the offending letters constitute disobedience of a direct order or insubordination. Apparently, the charging officer felt it was enough that the inmate “failed to follow the dictates of the Federal Court and higher authority”, and he grounded the institution’s authority to sanction such conduct on the following proposition:

As the Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order, we are submitting the direction of the Special Master in his 5th Report on Compliance, page 71, section 8, paragraph 4: ‘False accusations and statements by inmates or staff may be subject to disciplinary action when made in a knowingly, deliberate, and malicious attempt to cause significant injury to another party and the potential for such injury is substantiated.’

The language referred to by the charging staff member is found in Paragraph 25 of the Court’s order of July 20,1978. In fact that language relates to false accusations and statements made in the course of the utilization of the grievance process itself, and thus it is irrelevant to the issue at hand. “Giving false information or lying” constitutes a Class 11-24 offense, but the description in the inmate manual narrows the offense to “knowingly giving false, inaccurate, or misleading information to a member of the staff of M.C.I.”

Thus, as the charging staff member appears to concede in the text of the conduct report, any “false accusation” or “statement” made by the inmate in connection with the effectiveness of the grievance system appears not to be an act of disobedience or insubordination against officials at the prison. As for the suggestion that the “Federal Court does not establish sanctions against inmates (who) would attempt to violate the provisions of a Federal Court Order,” one would have thought that the course and experience of this litigation would have taught high ranking staff members that the Court is more than able to assert its own authority when faced with disobedience by anyone of any of its orders. In the circumstances of this case, if the Superintendent believed that the actions of the honor dormitory inmate constituted a violation on the latter’s part of any provision of the Court’s order of July 20, 1978, the Superintendent’s appropriate course of action was to file a motion to show cause why the inmate should not be held in contempt. If, on the other hand, he feared that the inmate’s actions would result in the destruction of the inmate grievance system mandated by Paragraph 25 of the Court’s order, and thus in a possible charge of contempt against himself, the Superintendent should be assured that his inability to comply with any portion of the Court’s order, to the extent that such compliance is rendered impossible by inmates’ actions that are beyond the Superintendent’s control, would not be contumacious.

Likewise, it is clear that the inmate’s letters did not constitute an act which constitutes “an obviously immediate and direct threat to the security of the institution, its staff, other inmates, or the inmate himself,” the relevant portion of the text of the Class 11-16 offense. Whether they might constitute an obvious threat of a disruption to the operation of the institution, etc., is beside the point, as this language was not sufficiently brought to the attention of the inmate population to permit sanctions to be imposed for violations thereof in accordance with Paragraph 8 of the Court’s order of July 20, 1978.

Finally, in view of what has been said above, the inmate could not possibly be guilty of an “attempt” to “conspire” to violate a rule of conduct, since the conduct to which he allegedly attempted to conspire would not, in itself, constitute a violation of a rule of conduct.

The Special Master shared these views with the Superintendent, the Chief Inspector, and special counsel and made it clear that he regarded the issuance of the conduct report, the finding of guilt, and the sanction recommended by the Rules Infraction Board to constitute flagrant violations of Paragraph 8 of the Court’s order. In the course of these discussions, the Special Master learned for the first time, that the matter of an appropriate response to the inmate’s action had been raised with in-house counsel within the Department of Rehabilitation and Correction, that the course of conduct pursued had been approved as nonviolative of the provisions of the Court’s order in Taylor v. Perini, and indeed that the language of the conduct report itself had been reviewed and approved by in-house counsel. For this reason and for no other, the Special Master went to great lengths to explain why he believed that this incident constituted an egregious violation of the Court’s order and urged the Superintendent and his special counsel to rectify the matter as best they could by withdrawing the conduct report, returning the inmate to the honor dormitory forthwith, and removing all references to the incident from the inmate’s file. Although somewhat perplexed by the conflicting opinion of lawyers on the subject, the Superintendent, upon advice of his special counsel, acquiesced and took the steps requested by the Special Master.

This incident has been described at such length because, in the opinion of the Special Master, it carried the potential of setting back enormously the progress which the parties have made in this litigation over the past three years. The advice of in-house counsel in Columbus, if followed, would have resulted, at a minimum, in a finding of noncompliance and a recommendation by the Special Master that continued monitoring of the defendants’ compliance be required. In view of the attitude displayed by the Superintendent, however, when the Special Master’s point of view was brought home to him, the Court may be inclined to treat the matter as a closed incident. Once before in the course of this lawsuit the advice and actions of in-house counsel threatened dire consequences to one of the defendants in this case. But for the availability of special counsel then and now, the outcome of relying upon such advice could have been most unfortunate.

Thus while it is the recommendation of the Special Master that the Court accept the corrective actions taken by the Superintendent as sufficient to indicate a continuing commitment on his part to comply with the substance of Paragraph 8 of the Court’s order, the defendants should understand that the Court’s acceptance of the Special Master’s recommendation, if that in fact occurs, will be a matter of grace rather than right.

FINDINGS REGARDING COMPLIANCE

The Special Master finds that the current inmate manuals are in need of revision and recommends that the Court require that revisions be made to cause the manuals to reflect current rules and practices and that revised manuals be distributed to all inmates no later than June 1, 1979. Otherwise, apart from the incident described at length in the immediately preceding portion of this report and for the reasons stated therein, the Special Master finds that the defendants have remained in compliance with the provisions of Paragraph 8 of the Court’s order of July 20, 1978.

PARAGRAPH 9

Correctional cell conditions. By and large, the defendants have maintained the conditions in the correctional cells which are mandated by this provision of the Court’s order. Inmates incarcerated in these cells have received normal institutional meals, although several complained that food is cold by the time it is served. Adequate clothing, bedding, toilet facilities and toilet articles are provided on a routine basis. The library book cart makes daily rounds to these cells, and inmates enrolled in educational programs are permitted to keep their textbooks. Normal mail privileges are provided. Clergymen and social services personnel are permitted to visit the area, and log books reflect that such visits in fact are made. While no attorneys have actually visited in this area, the Special Master has received no reports that access to attorneys is denied inmates held in these cells. The light is adequate for reading during the day, and, although the area is never completely dark at night, the lighting is sufficiently subdued to permit sleeping. Finally, inmates in the correctional cells are given an opportunity to exercise at least once every third day.

Only three of the eleven subparagraphs of Paragraph 9 require further discussion. Subparagraph 9(a) proscribes the incarceration of an inmate in a correctional cell for a period exceeding 15 days or for a total of more than 30 days within a six months period. Either of these limits may be exceeded only when an inmate’s transfer to another correctional institution has been approved by the Department of Rehabilitation and Correction. The purpose of the exception is to permit the inmate to be confined in a correctional cell pending transfer to a maximum security institution and to avoid the necessity of placing such an inmate in the general population after a decision has been made (and approved) that he is not amenable to medium security classification.

Apart from instances in which an inmate has been held awaiting transfer to another institution, the defendants have complied with the requirements of this subparagraph. In one instance, however, involving a person whose transfer had been approved by the Department, the defendants misunderstood the purpose of the exception and utilized it incorrectly.

In this instance an inmate was apprehended after escaping from M.C.I. and the Rules Infraction Board recommended his transfer to maximum security. The recommendation was approved. Subsequently, however, the State of Ohio moved to prosecute the inmate on charges of escape as well as others, and he was held in a correctional cell at M.C.I. from July 24 until August 23, 1978, pending arraignment.

As the Special Master pointed out to the Chief Inspector when this situation came to the former’s attention, the purpose of the exception to the general rule in subparagraph 9 is not to permit an inmate to be held in a correctional cell at M.C.I. for a long period of time awaiting arraignment or any other legal proceeding; rather, it is intended to account only for a brief delay which may occur in physically transferring from M.C.I. a prisoner whose transfer to another institution has been approved at the departmental level. In the case in hand, the defendants should have held the inmate in a maximum security institution pending his arraignment and brought him to Marion only when his appearance in court was required.

Subparagraph 9(d) requires that normal medical care be provided to all inmates housed in correctional cells and that a medically trained staff member make rounds of the correctional cells at least once during the course of the first and second employment shifts. The Special Master inspected log books maintained in the correctional cells and determined that medical rounds have been made at least once during the first and second shifts of each day. Indeed, most often, such rounds were made as well on the third shift.

Additionally, however, this subparagraph requires that prescription medication be dispensed in the correctional cell area by medical rather than correctional personnel. While the defendants generally have complied with this standard, there has been some deviation. For an undetermined period of time on one shift, the only medically trained staff person was female, and during this time prescription medication was passed to men in the correctional cells by a correctional officer. On some occasions it may be that the pharmacist performed this function and on others that inmates held in correctional cells were brought by the officer out of the cell area into an entrance way where the paramedic dispensed medication. According to persistent and reliable reports from inmates, however, there were other occasions upon which medication was passed directly to the inmate in his cell by the correctional officer on duty.

On December 18, 1978, the Superintendent issued an order to the Infirmary Director that the pharmacist dispense prescription medication to correctional cell inmates when only the female paramedic is on duty; in the absence of the pharmacist, the Superintendent ordered that the inmate be brought from his cell to the entrance way where such medication will be dispensed by the female paramedic. This order was confirmed to infirmary staff by the Infirmary Director on December 22, 1978. If these orders are followéd, the problem should not recur in the future.

Finally, the defendants have not adhered to the provisions of subparagraph 9(k) requiring that a correctional officer or other staff member be present within the correctional cell area except for brief, temporary absences or during emergencies and that each occupied correctional cell be visually inspected at least every 30 minutes. The Special Master received reports that the officers assigned to the correctional cell area spent considerable periods outside of that area, particularly during the second and third employment shifts. In order to investigate those reports the Special Master obtained copies of the institution’s Daily Report Sheets for September and November, 1978, which indicate the assignment of individual officers to partic