Full opinion text
MEMORANDUM OPINION AND ORDER KANE, District Judge. This action is a suit under 42 U.S.C. § 1983 challenging conditions of confinement at the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado. Plaintiffs are persons incarcerated in this maximum security unit, and defendants include the governor of Colorado, the executive director of the Department of Corrections, and the superintendent of the maximum security unit. The suit was filed in forma pauperis on November 30, 1977. After appearance of counsel for plaintiffs and amendment of their complaint, the suit was certified as a class action on March 31, 1978, pursuant to F.R.Civ.P. Rule 23. The class consists of all persons who are now or in the future may be incarcerated in the maximum security unit, or the new maximum or close security unit, of the Colorado Department of Corrections. On May 17, 1978, a motion to dismiss, or in the alternative to abstain, was denied, and defendants answered the amended complaint on June 9, 1978. After a year and a half of discovery and months of efforts to reach a settlement, the pretrial order was filed. On October 5, 1979, the eleventh hour before trial, the Honorable Richard D. Lamm, Governor of Colorado, filed a letter with the court concerning the parties’ efforts to reach a settlement. In the letter Governor Lamm detailed the unsuccessful efforts made to bring the various constituencies of the state government into consensus and requested an additional one week’s continuance of the trial date in order to further these efforts. The request was granted. In part of his letter, Governor Lamm stated, “I understand that the parties must prepare for trial, but it is my earnest hope that a consensus can be reached before trial, one way or another. I believe that an agreement negotiated by the parties in good faith in this matter should be given a chance to succeed, which it can if there is a legislative consensus in support of it. But I cannot agree to the document which I have reviewed absent such a consensus, and I do not believe that it would be in the interest of the court or the parties for me to do so.” Trial began on October 15, 1979 and lasted for five weeks. Testimony from inmates, state officials and numerous experts was received. Thousands of pages of documentary evidence were received, and a firsthand inspection of the prison was made. After eight hours of final arguments a bench ruling was made in favor of plaintiffs holding that the conditions at the Canon Correctional Facility deprive persons incarcerated there of rights clearly protected by the United States Constitution and violate numerous rules of state law. This opinion supplants the bench ruling. THE CONTEXT OF JUDICIAL DETERMINATION Across the country, civil rights cases filed by state prisoners in federal courts have increased from 2,030 in 1970 to 11,195 in 1979, an increase of 451.5 per cent. Administrative Office of the United States Courts, 1979 Annual Report of the Director 59-62 (1979). In the District of Colorado, for the twelve month period ending June 30, 1979, 155 civil rights cases were commenced by state prisoners, compared to 106 in 1978, 51 in 1977, and only 21 in 1976. This represents an increase of 50 per cent since 1978, and almost 750 per cent since 1970. As of June 30, 1979, 115 such cases were pending in this district, compared to only 65 as of the same time in 1978. From the Colorado State Penitentiary alone, 150 civil rights cases have been filed since 1976. Of these 150, 84 were dismissed and two others were decided in favor of defendant state officials. In comparison, in only four cases was there any disposition, preliminary or otherwise, in favor of plaintiff inmates. Two cases are on appeal, nine have been stayed or consolidated with this action, 39 others are pending, and ten have had assorted histories. Of the 92 case dispositions, 86 were either dismissed or decided in favor of state officials, accounting for more than 93 per cent of the results. Such a history hardly indicates that the federal judiciary has jumped at the chance to interpose itself between Colorado officials and persons confined at the State penitentiary. The contrary is true. A great deal of this deference to state officials has been due to the substantial reluctance of federal courts to intervene in matters of prison administration. For many years, the so-called “hands off” policy was a near absolute jurisdictional bar to federal court review of alleged violations of prisoners’ asserted constitutional rights. Language from the Tenth Circuit is suggestive of the attitude that “[c]ourts are without power to supervise prison administration or to interfere with the ordinary prison rules or regulations.” Banning v. Looney, 213 F.2d 771, 771 (10th Cir. 1954), cert. denied, 348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677 (1954). See Stroud v. Swope, 187 F.2d 850, 851 (9th Cir. 1951), cert. denied, 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627 (1951); Garcia v. Steele, 193 F.2d 276, 278 (8th Cir. 1951); and Dayton v. Hunter, 176 F.2d 108, 109 (10th Cir. 1949), cert. denied, 338 U.S. 888, 70 S.Ct. 184, 94 L.Ed. 545 (1950). With Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam), however, the courts began to open their doors to prisoner complaints. In Cooper, a state prisoner alleged that he was denied religious freedom and discriminated against in his religious practice. The Seventh Circuit affirmed the district court’s dismissal: ‘We think that it is well settled that it is not the function of the courts to superintend the treatment and discipline of prisoners in penitentiaries, but only to deliver from imprisonment those who are illegally confined.’ Stroud v. Swope, Warden, 9 Cir., 187 F.2d 850, 851. A prisoner may not approve of prison rules and regulations, but under all ordinary circumstances that is no basis for coming into a federal court seeking relief even though he may claim that the restrictions placed upon his activities are in violation of his constitutional rights.' [Citations omitted.] 324 F.2d 165, 167 (7th Cir. 1963) (quoting United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105, 107 (7th Cir. 1953)). On certiorari, the Supreme Court reversed. “Taking as true the allegations of the complaint, as they must be on a motion to dismiss, the complaint stated a cause of action and it was error to dismiss it.” Cooper v. Pate, 378 U.S. at 546, 84 S.Ct. at 1734. By 1972, the Supreme Court said in Cruz v. Beto, 405 U.S. 319, 321-22, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam): Federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons’, including prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the Government for redress of grievances which, of course, includes ‘access of prisoners to the courts for the purpose of presenting their complaints.’ Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, [749] 21 L.Ed.2d 718 [721]; Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 [1035.] The court reversed the lower courts’ dismissal and granted petitioner’s motion for leave to proceed in forma pauperis. The Tenth Circuit followed suit in Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). Discussing its past dealings with prisoner complaints, the Court of Appeals stated at 505-06 (emphasis added): We have consistently adhered to the so-called “hands off” policy in matters of prison administration according to which we have said that the basic responsibility for the control and management of penal institutions, including the discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such a manner as to constitute clear abuse or caprice upon the part of prison officials. See Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). Also see Banning v. Looney, 213 F.2d 771 (10th Cir. 1954); Powell v. Hunter, 172 F.2d 330 (10th Cir. 1949). But being fully cognizant that one does not lose all his constitutional rights when he enters a prison, see Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 . . ., we have never turned a deaf ear to a bona fide claim for relief based upon the deprivation of a constitutional right when asserted by a federal or state prisoner, either in the nature of a mandamus or habeas corpus proceeding, or, as here, a claim under the Civil Rights Act. Accord, Gregory v. Wyse, 512 F.2d 378, 381 (10th Cir. 1975), Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970). In Crouse, inmates at the Kansas State Penitentiary complained, inter alia, that prison officials had stood by and not intervened when plaintiffs were assaulted by another inmate. The district court had granted summary judgment in favor of the warden, and the court of appeals reversed, finding that summary judgment was not appropriate. 417 F.2d at 507-10. Defendants have pointed to several recent Supreme Court decisions which reiterate the policy of substantial deference to prison officials. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jones v. North Carolina Prisoners’ Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); and Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). I have read these decisions and, to the extent that they are relevant, I am bound by them. In fact, I have consistently followed this policy. See Jackson v. Moore, 471 F.Supp. 1068 (D.Colo.1979); Marion-eaux v. Colorado State Penitentiary, 465 F.Supp. 1245 (D.Colo.1979); Tuggle v. Evans, 457 F.Supp. 1015 (D.Colo.1978); Mingo v. Patterson, 455 F.Supp. 1358 (D.Colo. 1978); Sorenson v. Zapien, 455 F.Supp. 1207 (D.Colo.1978); and Brown v. McGowen, 445 F.Supp. 468 (D.Colo.1978). But it is always the countervailing principle, in these decisions and others, that “a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.” Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. at 1807-1808. As the Tenth Circuit said in Battle v. Anderson, 564 F.2d 388, 392-93 (10th Cir. 1977): We, too, abhor any situation or circumstances requiring the intervention of the federal courts in matters involving the administration, control and maintenance by the sovereign states of their penal systems. It is a delicate role assigned to the federal courts to display that restraint so necessary ‘in the maintenance of proper federal-state relations.’ Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). We are cognizant of the complexity of problems confronting the states in upgrading not only a host of state institutions and facilities but in properly maintaining them both physically and with adequate personnel. If we were to close our eyes to the financial burdens a variety of ‘piecemeal’ federal court orders would impose upon the states and their taxpayers we would refuse to come to grips with reality. We are in sympathy with the ever increasing budgetary demands upon state taxpayers. There are constitutional and statutory limits on a state’s capacity to finance capital outlays. No one state governmental body is authorized to dictate a specific course of action. The governmental wheels often turn slowly simply as a result of pressure generated by a multitude of needs. Those charged with the administration of state government must pick and choose, set priorities and goals, many of which must later be abandoned or delayed because of unforeseen emergencies. Thus, it is in recognition of these problems and pressures that this court is sincerely reluctant to enter the arena involving the issues presented. The fact is, however, that the issues are jurisdiction-ally before us, just as they were jurisdictionally before the District Court. They have not been invited or solicited. We are guided by the fact that the United States Supreme Court has not wavered in its holding that the Eighth Amendment to the United States Constitution prohibiting the imposition of cruel and unusual punishment is, inter alia, intended to protect and safeguard a prison inmate from an environment where degeneration is probable and self-improvement unlikely because of the conditions existing which inflict needless suffering, whether physical or mental. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). [Emphasis added.] As I have stated in my bench ruling, there is, from the beginning of my assignment to this case to the present time, a complete and utter distaste for having to cross that Rubicon which separates the federal government from the state government. In addition to the cited decisions, the history which I have recounted shows that this circuit and district have shown great deference to prison officials, especially toward the Colorado State Penitentiary and the 150 cases that have been filed from there in the past three years. Nevertheless, the plaintiffs have presented substantial, often compelling, evidence of long existing and continuing constitutional violations. Except in fashioning the necessary relief, deference is no longer possible. JURISDICTION It is a well-settled rule that civil rights plaintiffs are not required to exhaust state remedies before seeking relief in federal court. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per curiam); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Accord, Clappier v. Flynn, 605 F.2d 519, 528 (10th Cir. 1979). Wilwording is particularly relevant since in that case state prisoners complained of conditions of confinement in the maximum security unit of the Missouri State Penitentiary. The complaint was fashioned as a petition for habeas corpus and both the district court and the Eighth Circuit dismissed the petition for failure to exhaust state remedies. 404 U.S. at 249, 92 S.Ct. 407. After stating that “[s]ection 2254 does not erect insuperable or successive barriers to the invocation of federal habeas corpus,” id. at 250, 92 S.Ct. at 408, the court said that the prisoners’ pro se complaint could “also be read to plead causes of action under the Civil Rights Act.” Id. at 251, 92 S.Ct. at 409. The court continued: Petitioners were therefore entitled to have their actions treated as claims for relief under the Civil Rights Acts, not subject, on the basis of their allegations, to exhaustion requirements. The remedy provided by these Acts ‘is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.’ Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 [503] (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). State prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). The rule is applicable here. FINDINGS OF FACT In Appendix I (Revised) to the Pre-Trial Orders there are 1,727 separate, numbered paragraphs containing stipulations and proposed stipulations of fact, excerpts of sworn testimony and summaries of statistics. Some of these paragraphs contain subheadings and, in their entirety, the data covers 229 pages. During trial, thirty-six additional witnesses were called and testified. Over four hundred exhibits were received. It would be pointless to set forth all of this evidence in detail. With only two obvious exceptions, the testimony was credible and largely uncontradicted. As will be stated more explicitly, the evidence in this case shows that prisoners in the Canon Correctional Facility are housed under conditions which fall below all recognized constitutional and professional standards. Those conditions include insufficient living space with inadequate sanitation, ventilation, light, heat, noise control and fire safety; lack of protection from violence; massive and pervasive idleness because of lack of productive activity; inadequate medical care (both mental and physical); and unnecessarily restrictive classification of prisoners into security classifications which exacerbate physical and mental deterioration. The old maximum security prison of Colorado (“Old Max”) began as a territorial prison back in the late 1860’s before Colorado became a state. For the most part, Old Max was built in the early part of this century. With the exception of the new administration building, the prison is antiquated and shows scars left by generations of neglect. Every report which has been issued in the last ten years has decried the inadequate facilities and sporadic rehabilitation at Old Max. The institution has been studied to death. In 1973, a task force from the American Correctional Association found that Old Max was an “outdated, unmanageable facility” which could not be efficiently staffed due to its design. A year and a half later, the report by the Attorney General to defendant Lamm on the events and causes of the May 18, 1975 riot found that Old Max was “antiquated” and “insecure” and recommended studying the possibility of razing the cellhouses or gutting their interiors in their entirety. In February 1977, the Corrections Master Plan which was submitted to defendant Lamm and the Colorado State Legislature recommended that Old Max be phased out as a prison. Its use as a medium security prison was considered and rejected. In February, 1978, the Department of Corrections commissioned yet another master plan. A consultant familiar with reuse and modification of existing correctional facilities, whom the Department of Corrections hired to study Old Max, found that with the exception of the new administrative building, all other facilities at Old Max, including the perimeter wall should be demolished or otherwise decommissioned so that inmates will not be housed or employed in those buildings. At the time of this study, the Department of Corrections supported demolition of all buildings at Old Max except the administration building. Paul Silver, a nationally recognized corrections architect hired by the defendants, has stated that each and every major living area at Old Max is unfit for human habitation. Although Colorado has appropriated funds to build a new maximum security prison and a new close security prison, these facilities are not scheduled to be opened until January or February 1981. In the interim, prisoners are forced to live in intolerable conditions at Old Max. Old Max was built over the years in a random fashion on a site stepping up a steep “hogback” hill at the west end of Canon City. Buildings, fences, walls and towers have been added over the years without an overall plan for development. Due to its haphazard evolution, Old Max is a collection of unmanageable and unse-curable building components. A relatively new administration building and diagnostic center front the public road and form the outer facade of the prison. Behind the walls, the prison consists of three large cellblocks — 1, 3, and 7. The central building which houses the school, auditorium, law library, main kitchen, dining rooms, and a few offices is part of the same building that houses cellhouse 1. The prison infirmary which serves all 3 prisons in Canon City is located deep within the Old Max complex near cellhouse 3. In the basement of the infirmary there is a small housing unit known as cellhouse 5 for “trusty” prisoners; upstairs is a clutch of carrels for the tiny and wholly inadequate mental health department. Beyond the North Wall is a small industry row. Outside the walls on the east side of the prison is a small obsolete building known as cellhouse 4 which originally was used as the Colorado Women’s prison and is now used to house minimum security prisoners assigned to Old Max. The main living areas of Old Max are unfit for human habitation. Housing facilities are totally obsolete and do not comply with minimal architectural standards. Cell-houses 1 and 7 house approximately 800 prisoners in high multi-storied open tiers. Each cellhouse consists of 2 concrete cell-blocks, with 4 tiers of cells back to back in 2 parallel rows with an open gallery between them. There is no room for prisoners to move. Most cells provide for barely one half the square footage of space required by modern correctional standards. Tiers are narrow and floor space is limited. As a result, prisoners live with constant jostling in very restricted space. At one point, Colorado planned to tear down cellhouse 7. As recently as 1975, it was closed. However, after the May 1975 riot, cellhouse 7 was reopened so prisoners could escape the overcrowded conditions which existed in cellhouse l. Now the population in those cellhouses has increased. Cellhouse 3 consists of 100 segregation cells in a concrete building with 10 separate wings for prisoners. It has two floors. Each floor has 2 wings of interior cells back to back. In addition, cellhouse 3 has 6 maximum isolation cells known as “the hole” on the bottom floor behind the officer control cage and a similar wing upstairs for death row. There is a special section on the second floor known to the staff as the “intensive management unit” and to the prisoners as the “dog cages.” Both terms are accurate. Prisoners in cellhouse 3 are locked in their cells ah average of 23 hours a day. The cells do not provide the 80 square feet required for prisoners in segregated status by the American Correction Association or the 60 square feet accepted by Battle v. Anderson. Environmentally Old Max is inadequate to meet the health and safety needs of prisoners in the correctional system. Buildings are in a serious state of disrepair. The roof in cellhouse 1 has been leaking in the south, north and front sections for several months. Previous repairs were ineffective. The roof in cellhouse 3 is deteriorated and has also been leaking over a major portion of the cellhouse. Plumbing throughout Old Max is unsanitary, inadequate and poses an imminent danger to public health. Cellhouse 3 does not have hot water, even though minimum standards for correctional institutions require hot water as a fundamental health measure. Cellhouses 1 and 7 cells now have hot water. Throughout the institution, there are leaking water pipes. In cellhouse 7, continuing problems with leaking plumbing have caused leaks into adjacent and lower cells. Moreover, malfunctioning toilets and deficient venting of the plumbing system have caused sewage to drain into sinks in adjacent and lower cells. Shower areas have not been maintained in clean, sanitary and safe condition. Bath water has been impounded in shower drains and troughs due to obstructed drains. Excessive moisture, humidity and overgrowths of mold, fungus and slime have resulted from inadequate ventilation. Missing ceramic floor tiles have made floors uncleana-ble and promote mold and slime buildup. The unsanitary conditions present a source of infection from fungal buildup and a hazard to users due to metal stubs sticking up through the floor and uncovered electrical boxes that are sources for electrical shock. In cellhouse 3, one inmate was burned on the arms, hands, neck, back and face by being exposed to excessively hot water in the shower; his injuries required plastic surgery. The heating and ventilation system are antiquated and incapable of providing minimally adequate heat and ventilation. Cell-houses 1 and 7 have open 5-6 story interiors with two four-tier islands of cells surrounded by glass windows around the entire building perimeter. This design precludes the elimination of drafts, the adequate control of temperatures, and the even circulation of air. State health inspections have consistently cited extreme temperature variations between the first and fourth tiers. Ventilation equipment is frequently not in use. During the summer months, odors, excessive heat, and humidity are unbearable on the upper tiers. The lack of adequate ventilation causes stagnant air with foul odors; the continued presence of contaminants in the air; a lack of adequate displacement of body heat; personal discomfort; health and sanitary problems and an increase in frustration, stress and hostility among prisoners and staff. The ventilation systems in cellhouses 1, 3 and 7 cannot be upgraded to meet minimum standards without major alterations of the ventilation systems and buildings at uneconomical expense. The noise levels in the living areas of Old Max are intolerable. Large and old cell-blocks with large vaulted spaces, tremendous physical distances, open tiers, hard surfaces, and an absence of acoustical equipment create serious and harmful noise level problems. There is a direct correlation between high noise levels and high blood pressure, hypertension, nervousness, stress, loss of appetite and detrimental psychological effect. No measures have been taken to control or abate noise in any area of Old Max. Lighting is inadequate for prisoners to read safely in their cells. Minimum standards require 30 foot candles; ordinary lighting for book reading should be 60-80 foot candles by architectural standards. Readings at Old Max for March, June and July 1979 showed lighting was only 10 foot candles. The cell lights by design are inadequate and impracticable for lighting purposes involving close eye tasks. Inadequate lighting has adverse effects on vision; moreover, insufficient lighting increases tension and fatigue among prisoners and guards. The entire institution is a fire hazard. In the event of fire in old multi-tiered facilities like cellhouses 1 and 7, it is impossible to evacuate prisoners. Cellblocks are not divided into compartmentalized fire zones. There are neither smoke barriers nor smoke detectors. Twenty-foúr hour surveillance by guards is relied upon for fire detection, and fire fighting. Even the hospital has dead end corridors which present serious barriers to evacuation in case of emergency. The institution has been cited for numerous violations of the National Fire Protection Association Standards. Conditions in the food services areas at Old Max and the Diagnostic Unit fail to meet any known public health standards. The building housing the main kitchen is obsolete; in October 1978 the Department of Corrections determined that major structural improvements were not economically feasible. Walls are soiled with dirt. The wall tile throughout the main kitchen is not readily cleanable because of recessed grouting. Concrete floor areas have deteriorated and are not readily cleanable. Ventilation is inadequate throughout the main kitchen. The fan in the kitchen is ineffective and causes dust and lint to be blown over the food preparation area. Two barely functioning floor drains serve the entire kitchen. Excessive water collects around steam kettles, dishwashers, and the produce processing area. Storage shelves have been soiled with dirt. Rodent. droppings have been found in the storeroom. Equipment is outdated and poorly arranged. Inspections by the Colorado State Health Department have revealed persistent violations of health codes. As of July 17, 1979, the State Department of Health could not issue a Certificate of Inspection for the food service facilities because the facilities were not in substantial compliance with the “Rules and Regulations Governing the Sanitation of Food Service Establishments in the State of Colorado.” Although some deficiencies were clearly laid to the outdated equipment and facilities, most deficiencies were caused by a lack of routine maintenance, operational and cleaning procedures. These unsanitary conditions have a direct impact on the health of the inmate population. Many health and sanitation deficiencies at Old Max are the result of a lack of routine maintenance and cleaning programs. The present executive director, James Ricketts, is a. professed stickler for cleanliness. Under his administration, a significant increase in cleaning activity has taken place but the facilities are still below standard. Poor housekeeping practices have been prevalent throughout the institution. Inspection after inspection cites cell-houses, corridors, and cells that are littered with trash and an accumulation of decayed food and other materials. As of July 1979, general repair and maintenance work at the prison was not being handled in a prompt and responsive manner by the industries division thus resulting in delays in repairs to plumbing, lighting and electrical systems. Every expert who has examined Old Max has concluded that it would be both infeasible and uneconomical to renovate Old Max for continued use. Defendant, former Executive Director Ault, has stated that many health and safety deficiencies at Old Max are virtually impossible to correct because of inherently deficient design and construction. As of February 1,1977, it would have cost at least 38 million dollars to make Old Max minimally habitable. Even if defendants were to upgrade individual buildings to minimize environmental health deficiencies, the design and layout of Old Max make it virtually impossible for officials to provide prisoners with adequate programming. There is inadequate space at Old Max for programs and what space is provided is poorly designed. In order to prevent debilitation of prisoners, housing units must include adequate space for outdoor recreation, indoor recreation, lounge space and private activity spaces. Yet none of the major housing units at Old Max have day rooms, activity space or private conference areas. The random layout of buildings limits spaces available for programmed recreation. Moreover, the mazelike design and disorganized layout of the prison dictate a disproportionate amount of staff time to security and monitoring traffic. Staff are not available to oversee programs and activities. Former Director Ault recognized that the limitations of the 100 year old prison would make it difficult for the Department of Corrections to implement Colorado laws which require all inmates to work. The most serious defect in the design of Old Max, however, is the inherent inability to provide prisoners with basic safety. The American Correctional Association report, the Attorney General’s report, the 1977 Master Plan and the Five Year Correctional Plan all found that the design of the prison makes it virtually impossible to provide prisoners with security. The haphazard growth of the institution and the nature of the site do not permit adequate surveillance. Due to inadequate planning and design, the prison cannot be staffed efficiently to provide for security. So many walls and fences have been constructed within the perimeter of Old Max, it takes a disproportionate amount of staff to man the security towers; it is necessary to man 10 towers around the clock, to provide what is less than adequate surveillance. Because buildings, yards and walls have developed in a random fashion, inmate traffic around the prison is congested and confused. Moreover, there are a large number of blind spots which permit assaults and violent incidents to occur out of the sight of correctional officers. There are so many niches and crannies which are hidden from visibility at Old Max that officials have restricted prisoner movement and the use of outdoor space. The cellhouses do not provide for safety. Housing contributes to violence between inmates often leading to severe injury and death. The design of cellhouses 1 and 7 fails to provide for visibility. The guards’ cage at the far end of the cellhouse is inadequate for surveillance. There is no secure vantage point from which cell movement can be observed. Visual surveillance of the upper tier cells and most of the tiers is obstructed from the ground floor. Similarly, cellhouse 3 has 10 separate wings for housing prisoners. This design does not allow for visual surveillance and observation from the central control cage. Old Max fails to meet life safety codes, building codes, health codes, fire safety codes, or other regulations relating to the safety of inmates and staff. IDLENESS Old Max is characterized by massive and pervasive idleness. • Although the defendants have been aware of the problem of idleness for years, nothing has been done to alleviate the dead time and boredom which dominate the lives of most prisoners at Old Max. In recent years, actions have been taken to restrict rather than to increase activity at the prison. No substantial effort has been made to increase jobs or programs or activities at Old Max nor are there any developed plans or funds for jobs, programs, activities or staff at the new prisons. In 1973, the American Correctional Association found that idleness was responsible for more problems at Old Max than any other factor. Similarly, the report of the Attorney General on the events and causes of the May 18, 1975 riot at the Colorado State Penitentiary concluded that “there is too much ‘dead’ time during which inmates have no effective opportunity to engage in productive activity,” and that “more work and recreation programs are needed.” While fully cognizant of these reports, prison officials began to restrict productive activity at Old Max. After 1975, officials tore down a substantial portion of industry row along the north wall eliminating the cannery, mattress factory, brick plant, shoe shop, butcher shop, tin shop, garbage shop, soap plant, blacksmith shop and tailor shop. For totally unexplained reasons, inmates do not even remove trash and garbage. Such removal is performed by an outside contractor. In 1977, after Allen Ault became Director, officials tore down the laundry which employed over 50 prisoners. In 1977, the officials tore down the general library and stopped providing any library services or books to prisoners, in 1976, the Warden of Old Max, after consultation with Governor Lamm, discontinued a number of inmate self-help groups at Old Max, including the Black Cultural Development Society, the Latin American Development Society, the Progressors, each of whose membership ranged from 100-200 prisoners. In 1977, officials discontinued the Alcoholics Anonymous Study Group which involved 234 prisoners. Later, the officials banned the inmate council and discontinued the inmate radio station and the inmate newspaper. None of these jobs or activities has been reinstated or replaced. The majority of prisoners at Old Max are unemployed. Such unemployed inmates in the general population are referred to as “transitional workers” or “TWs.” These prisoners are eligible for jobs but are not assigned only because there are no jobs available. Even though TWs are not so assigned for disciplinary violations, they are forced to remain in their cells at least 20 hours a day. Not only are they denied employment opportunities, but because they are not workers, they are denied access to any constructive or productive activities such as hobbies or crafts and drug and alcohol treatment groups. Essentially, they are subject to double punishment because no jobs are provided. Over a hundred prisoners at Old Max are confined in protective custody to escape the violent and unsafe conditions in the general population. They are there for their own safety, not because of misconduct. Even so, they are locked in their cells for at least 20 hours a day, and allowed to leave only for meals and showers, and for recreation twice a week. Prison rules deny them the opportunity to participate in employment, education, drug treatment programs, hobby activities and religious programs. In recent months they have had to forego one of the opportunities for recreation in order to go to the canteen. One of the nation’s leading experts in the field of corrections, John P. Conrad, testified that an excessive number of prisoners in protective custody is an indication of improper administration and inadequate staff. There is no legitimate penological reason for denying these inmates access to jobs and other constructive activity. The only reason for their forced idleness is that there is inadequate staff to provide protection outside the cells. That so many inmates are willing to endure these conditions is an indication of the level of concern for personal safety. In short, many prisoners at Old Max are locked in their cells for more than 20 hours a day. Largely because of inadequate resources, prison rules and regulations severely restrict the opportunity of many inmates to participate in the few programs which do exist. The result is clear: only a small number of inmates are involved in programs and the rest spend their days confined in their cells with nothing constructive to do. ISOLATION A large number of prisoners are subjected to long-term isolation under oppressive conditions of confinement. In cellhouse 3, prisoners are locked in their cells for more than 22 hours a day. They are not let out of their cells for daily showers or daily exercise. They are prohibited from participation in all programs. They are not allowed out of their cells for meals. Inmates in cellhouse 3 are denied the most rudimentary opportunity for human contact: treatment staff rarely come to cellhouse 3 and the three guards who are assigned to the cellblock rarely enter the cellblock areas to talk to prisoners. Many prisoners are placed in cellhouse 3 for administrative reasons, not for punishment. Nonetheless, all prisoners in cell-house 3, even those who are there because of serious mental problems, are treated in the same harsh and restrictive manner as those who are being punished. While punitive segregation is limited to specific lengths of time, administrative segregation is not. The total lack of activity in cell-house 3 increases frustration and stress and causes mental and physical deterioration. Defendants have done little or nothing to reduce the large numbers of prisoners in administrative segregation or to create opportunities for constructive activity. In fact, the number of inmates in administrative segregation has increased to the point that a second unit has been created in cell-house 7. EMPLOYMENT The State of Colorado has placed a clear statutory duty on the defendants to “assume[ ] responsibility for training offenders in general work habits, work skills, and specific training skills that increase their employment prospects when released,” to “[d]evelop industries that provide forty hours of work activity each week for all able-bodied offenders,” and to “[p]rovide an environment for the operation of correctional industries that closely resembles the environment for the business operations of a private corporate entity.” C.R.S., § 17-24-102(l)(a), (b), (c), (d) (1978). Despite this duty, the majority of prisoners at Old Max do not participate in work and training programs. On July 1, 1978, less than Vi of the prisoners at Old Max (206 out of the 847 prisoners) were assigned to jobs. As of June 4,1979, nearly 400 prisoners were completely idle. The industries program does not have sufficient staff to operate. Even though Old Max houses half of the prisoners who are incarcerated in the Colorado prison system, the Department has assigned only 13 of its 167 correctional industries staff to the production industries program at Old Max. Staff shortages have adversely affected prisoners in working status since staff cutbacks have resulted in prisoners spending more idle time in their cells. There are very few production shops at Old Max. The shops which exist — tag plant, sign shop, print shop, machine shop, carpentry/furniture shop — employ few prisoners. Other jobs are primarily maintenance, clerical and “porter” jobs which do not keep prisoners busy and do not develop job skills. Industrial shops at Old Max are limited by a lack of qualified and trained personnel, old equipment which frequently breaks down, a lack of materials and a lack of stock and inventory. None of the industries shops offer journeyman or trade certificates. Not all shop supervisors are certified as vocational training instructors. Defendants have not made any significant effort to create new industrial jobs for prisoners at Old Max. In the last three years, defendants have started only one new shop. Only two prisoners have been assigned to this shop since it opened. There is no formal follow-up to see if prisoners employed in prison industries are actually placed in private industry upon release. There is little or no systematic training oriented to employment and no indication of joint planning and program development between correctional industries, vocational education and academic education. There is no overall program of vocational education and on-the-job training which extends from the classroom through work release opportunities and parole. There is no vocational training offered. As previously stated, prisoners who are unemployed because no jobs are available are denied opportunities to participate in other productive activities because they are not employed. Unemployed or under-employed prisoners increase security problems for the staff. Gambling, alcohol and drug abuse, and fights fill the void created by the idleness. Unemployment and idleness could become even worse at the new facilities. There are presently no firm plans for industry programs at New Max. The Department does not plan to .move the existing tag plant, sign shop, print shop, machine/welding shop or the furniture shop to New Max. The Department intends to keep industry row at Old Max operating until the shops generate enough profit to support construction of industrial shops at New Max. However, the Department does not plan to permit prisoners at New Max or the new close security prison to be transported to Old Max to work in the interim. The Department estimates that at least a third of the prisoners at New Max will be ineligible for jobs, and that another third will be in protective custody. Jobs have not been developed for those in protective custody, although there has been some mention of possible “cottage industries” for such inmates. It has also not developed enough jobs for those prisoners at Old Max who are expected to move to the new close security prison. EDUCATION Department statistics indicate that 75-85% of the prisoners at the penitentiary lack a high school diploma. The average reading level of prisoners is 7th-8th grade level. Nonetheless, educational programs at Old Max are totally inadequate. Education has no priority in the Department of Corrections. The education department is most conspicuous by its absence. It suffers from lack of teachers, lack of funds, lack of space and lack of supplies. There is only one full-time civilian teacher at Old Max for a population of 800-900 prisoners. The other teacher who is assigned to the school spends little or no time teaching prisoners. The education department has a budget of $6,000, half of which has been diverted to other departments. In early 1979, the school did not have basic supplies such as pencils, paper, chalk and textbooks. Hardly any inmates are given the opportunity to participate in educational programs. All prisoners in cellhouses 3 and 4, and all inmates in punitive segregation, administrative segregation and protective custody are totally excluded from educational programs. Prisoners with jobs are not permitted to participate in daytime educational programs. Even prisoners’ efforts for self-improvement have been severely limited and inhibited. There are no areas for study, either in the classroom area or elsewhere within the maximum security prison; most study must take place in inmate cells under the most adverse circumstances without adequate lighting, space or quiet for reading. The prison does not provide prisoners with funds for correspondence courses. At the time this suit was commenced, there was no general library at Old Max. One is presently planned but existing books are stored in a basement. Programs to encourage use of library books are nonexistent. Even though the Colorado State Librarian has a duty to provide general library services to prisoners at Old Max, there was no provision for a professional librarian or library services. C.R.S., § 24-90-107(l)(a) (1973). No volunteers are used anywhere in the institution. RECREATION Recreation programs are important because they allow prisoners to release stress and avoid deterioration. Old Max does not have a sufficient number of recreational programs and opportunities for prisoners. Recreation programs principally consist of offender initiated athletic activities which are monitored by the recreation staff. They are clique oriented and serve to restrict the use of the gym and athletic equipment to a limited number of offenders. Non-athletic programs are almost non-existent. Access to the gym is limited. It is closed every day from 1-3 p. m. and entirely closed on Friday, Saturday and Sunday evenings. Officials offer little in the way of programmed activities to combat boredom and idleness. The few group activities which are offered are restricted in number to 15 prisoners. In 1976, groups and community programs were open and memberships usually included from 60-100 prisoners. The only group activities offered consist of a bi-monthly discussion group for 15 prisoners every other Monday night, an Alcoholics Anonymous group for 15 prisoners on Wednesday and Friday nights, and a Narca-non group for narcotics addicts on Thursday nights. Chicano and black study classes have been discontinued, as well as the bridge and chess clubs. PERSONAL SAFETY In recent years, Old Max has been plagued with violence and the fear of violence. In May 1975, there was a major riot at the maximum security prison. In August 1976, in response to the loss of lives, serious injuries, strongarming, violence and drug dealing, the Chief of the Division of Correctional Services and the Superintendent of Old Max ordered a massive lockdown of the entire prison population. In September 1976, Governor Lamm declared that “the prison has fallen under a reign of terror,” and called a special legislative session to address the situation. The legislature responded with bills making it a felony to make, possess, or bring contraband into the prison, making it a felony to assault a prison employee; increasing the penalties for escape; redefining riot offenses to include inciting, participating in, or failing to disperse from a riot; and requiring all visitors to submit to body and car searches. The situation has not changed. In submitting the State Master Plan to Governor Lamm, Thomas Sheehan highlighted the dangerous atmosphere at Old Max stating: “[A]n environment of tension, anxiety and fear exists for both inmates and correctional staff. The result is an unsafe environment for both. Consequently, effective offender programming, including work activities, cannot occur.” Recent studies have confirmed that the system is still fraught with tension and violence. In its investigation of cellhouse 3, the 1978 Interagency Crisis Committee found that: In the assessment of the staffing patterns of Cell House # 3, it became overwhelmingly evident to the committee that staffing was grossly inadequate. The physical facility has ten individual units that should require a minimum of one person on duty per shift to maintain observation and guarantee security. In addition, there should be three individuals unassigned that coordinate communication and programming in order to handle emergency situations and anything out of the ordinary. The present staffing finds 91 inmates in ten locations managed by three employees. There is no possible way that they can maintain security. • Courts have taken judicial notice that most acts of violence go unreported in prison. See, e. g., Pugh v. Locke, 406 F.Supp. 318, 325 (M.D.Ala.1976). In general, the crime of rape at Old Max is unreported and prisoners report even fewer rapes than victims in the larger society. Even so, defendants’ logs indicate an extraordinarily high amount of stabbings, assaults, fights and threats. Medical reports reflect an inordinately high number of suicide and self-mutilatory gestures. Contraband logs and shift reports reveal the excessive number of weapons which officials have uncovered. The figures reflected in defendants’ records represent the tip of the iceberg. Until recently, defendants did not keep records of the number of suicides or suicide attempts at the prison. Moreover, when this law suit began, defendants claimed that there were no readily available means of obtaining data on deaths or violent‘assaults. See, e. g., Objections to Interrogatories 18-22 (October 2, 1978). Records which reflect violence are kept in different offices. To complicate matters, record-keeping practices have changed with each turnover in administration. Perhaps one of the most accurate barometers of the fear that pervades Old Max is the extraordinary number of prisoners who have placed themselves in “protective custo-i/ dy” where they are deprived of almost all activities and are locked in tiny, cramped cells for all but a few hours a day. In July 1978, 18% of the prisoners at Old Max (135 of 765) were classified as protective custody. While the number of those in protective custody has been reduced to about 100, the number of inmates requesting protection has continued to increase. The Attorney General’s report on the events and causes of the May 18, 1975 riot identified faulty architecture, inadequate staffing, idleness, lack of constructive activity, inadequate guard training, racial tension, and poor contraband control as some of the underlying causes of violence. No significant improvements have been made. As has been detailed, the architecture and layout of the facility make it virtually impossible to provide security. There are innumerable blind spots which permit assaults, stabbings and rapes to occur without surveillance. The design and staffing of all the major housing units contribute immeasurably to violence between inmates, often leading to severe injury and death. Prisoners have been brutally injured in every major living unit, including the “protective custody” units. What nooks, crannies and cells are not concealed are cluttered. Defendants have failed to maintain adequate staffing at Old Max to protect prisoners from the unsafe physical surroundings. (1977 Master Plan, p. 7.2; Ex. 2) When one considers that the prisoner population at Old Max is greater today than it was in 1975 and that staffing patterns in the housing units have not been significantly increased, it is clear that the understaffing at Old Max is even more dangerous to prisoners today than it was in 1975. In its report to Governor Lamm and Superintendent Wilson on the rash of suicides and suicide attempts, the Interagency Crisis Committee concluded that “almost everything they reviewed sooner or later related to inadequate staffing.” After reviewing staffing levels, the committee found that “it became overwhelmingly evident that staffing was grossly inadequate.” Although these reports recommended substantial increases in staffing, the Department of Corrections requested fewer new positions than it needed and in fact decreased security staff at the facility in fiscal year 1978-79. Administrative turnover has contributed to the unstable environment for corrections and the high tension among staff and prisoners. (1977 Master Plan, p. 3.19; Ex. 2) In the past seven years, there have been six different Wardens at the Penitentiary, four Directors of the Division of Corrections, and four Executive Directors of the Department. As a result, policies and practices are constantly changing, leaving prisoners and staff in a constant state of flux. An atmosphere of tension, anxiety and fear exists for both inmates and correctional staff. Reports dating to the Civil Rights Commission Study in 1973 have stressed the need for affirmative action to help lessen the disparity in race and culture between prisoners and guards. Although there have been some improvements, evidence reveals that only 4.4% of the correctional employees in the three Canon.City prisons are black and only 6.5% are Hispanic. Numerous reports have criticized the rural location of the prison which makes it particularly difficult to recruit professional staff and minorities. Given the cultural differences, the need for staff training is accentuated. Yet staff personnel receive no continuing training. Initial training was only recently instituted and, while it is laudable, it is grossly inadequate. No staff training meets any known professional or occupational standards. MEDICAL CARE Defendants have been aware of grave and systemic deficiencies in the medical care delivery system at Old Max for years. In 1974, the state grand jury which investigated the maximum security prison found that staffing was inadequate in medical and psychological services. At that time the grand jury cautioned “this situation can no longer be ignored by the ■ Colorado State Government.” In 1977, the State Master Plan found that staffing, facilities and equipment in medical and mental health services were still inadequate to meet prisoners’ health care needs. The prison is totally ill-equipped and unable to provide essential health services. Both in terms of physical and mental health delivery, the conditions in the penitentiary amount to an emergency situation. As one expert described the situation, it is a time bomb ready to explode into a disaster. The infirmary at Old Max is responsible for providing medical services to all prisoners in the Canon City area including prisoners at Old Max, the medium security prison, the women’s prison and the diagnostic center. Staffing is completely inadequate. The shortage in medical staff including doctors, nurses, and other support staff results in inadequate medical coverage. The primary care physician who has responsibility for the entire medical care program is paid for % time for prison services, he operates his own private practice and spends about three to five hours on-site at the prison per week on patient care. He is available for telephone consultation with staff as his personal circumstances permit. Physician assistants are acting as physician substitutes rather than as physician extenders. One physician assistant has requested more physician supervision, but his request has gone unheeded. There are no registered nurses to staff the infirmary at night. There is no ancillary staff to provide 24-hour a day, 7-day a week service. Because the medical facility is understaffed, medical personnel are continually called upon to perform services for which they have not been trained and for which they are not qualified. Contrary to every medical expert opinion, the Department uses inmate help in the medical services area. In 1977 when the law suit was filed, prisoners worked as nurses and were the sole providers of health care when civilian nurses and doctors were not present. Prisoners continue to work in such sensitive areas as the x-ray lab, the medical records department, dental services, the optometry department, physical therapy department, and the mental health department. The use of inmates in these areas violates the American Medical Association Standards for Correctional Health Care, and Colorado’s own health care standards. The use of such inmates presents serious problems in that some inmates may abuse their, positions for personal gain or be subject to pressure from other inmates for special favors. A prison infirmary requires quick exits and easy access to an outside medical facility. Adequate transportation is necessary to enable inmates to have outside medical consultations with specialists. One of the most serious problems with the prison health care system is that the Department of Corrections does not provide numerous vital medical procedures on site and relies on transporting prisoners to Colorado State Hospital for treatment. There has been a serious breakdown in this system because security staff control and interfere with prisoner access to needed health care services. Over the years, reports have pointed to an ongoing conflict of interest and lack of cooperation between security and medical services. Medical decisions are not followed by security officers. Treatment is delayed and avoided. Illness or injury which could be treated successfully is neglected until near fatal conditions develop. One inmate, in otherwise excellent condition, suffered an appendicitis. After misdiagnosis and hours of delay before receiving competent attention, he was then delayed without any excuse at all, from being transported to the Colorado State Hospital. Transport was further interrupted and, upon arrival, adequate attention was not given until after the appendix ruptured and the inmate was placed in a life-threatening situation. The inmate was then transferred back to Old Max before he had adequately recovered and complications and further needless suffering ensued. Follow-up care was delayed and incompetent. Were it not for the fact that the inmate was previously in superb condition because of his training as a champion weightlifter, he might have died. It is certain that his suffering was needlessly prolonged and that the treatment he received was inexcusably delayed and inadequate. Another inmate, through bureaucratic indifference, was forced to engage in activities expressly prohibited by a physician. Though suffering from exceedingly painful spinal disc problems and consequent surgery, he was forced to engage in lifting and other heavy manual labor. Medical aid was denied and medical prescriptions ignored. The extent of his permanent injuries resulting from this treatment remains to be determined. Another inmate came to the institution with a serious heart condition. Instead of being placed in the infirmary for direct observation and monitoring of his condition, he was placed in one of the cellhouses. He died before receiving medical attention. Trips to Colorado State Hospital are dependent on the availability of transportation which is controlled by security staff. There is only one motor vehicle available for transferring prisoners to CSH. Medical staff must compete with security staff. As a result, there is a serious backlog of prisoners waiting for general surgery, orthopedic surgery and for treatment by ear, nose and throat specialists. Three to four specialty clinics a week have been cancelled because Department of Corrections security staff did not provide the necessary transportation to CSH. Moreover, arbitrary rules imposed by prison officials have prevented prisoners from obtaining prompt medical treatment. Even though five prisoners may be scheduled to go to CSH for treatment, if one of those five prisoners is classified as “maximum security,” security staff will only permit one prisoner to be transported to CSH that day. As