Full opinion text
MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER SHARP, District Judge. This action is a suit under 42 U.S.C. § 1983 challenging conditions' of confinement at the Indiana State Prison (hereinafter I.S.P.) at Michigan City, Indiana. The I.S.P. is an all male maximum security correctional facility, which has been in existence at the present location approximately 120 years. Jurisdiction is conferred by 28 U.S.C. § 1343(3) and (4). The Court has consolidated herein three actions, cause numbers S 76-187, S 77-35 and S 79-32, wherein the plaintiffs seek individual damages and injunctive and declaratory relief on behalf of all inmates confined at the I.S.P. A class certification is sought and will be dealt with herein. Specifically, plaintiffs ask that the Court find, upon consideration of the totality of the conditions at the I.S.P., that those conditions violate the Eighth and Fourteenth Amendments to the Constitution of the United States. Plaintiffs in S 76-187 whose claims have not been dismissed or severed are James Odis Hendrix, Grady Thomas Bobbitt, Melon Carroll, Donald R. Sceifers, and James Blackburn. Each is an offender incarcerated at the Prison. Defendants in S 76-187 are Gordon Faulkner, Commissioner, Jack Duckworth, Warden, and Edward Jones, Director of Classification and Treatment at the Prison. Plaintiff in S 77-35 is Billie R. Adams, who is an offender incarcerated at the Prison. Defendants in S 77-35 are Jack Duck-worth, J. F. Kozlowski, P. G. Youngblood, Bob Glaney, R. Shriver, Rodney Keith, Ronald Batchelor, Byron Glick and G. Wilkins. J. F. Kozlowski is no longer employed at the Prison. Plaintiffs in S 79-32 are Bruce Wellman, Dwight Walker, Douglas Shackelford a/k/a Achebe H. Lateef, Raymond Hurt, Richard Colvin and Stewart Brooks. Walker, Shackelford and Colvin are offenders incarcerated at the Prison. Wellman, Hurt and Brooks were previously incarcerated at the Prison. Defendants in S 79-32 are Gordon Faulkner, Norman Hunt, Cloid L. Shuler, Dean Nietzke, Jack Duckworth, Edward Jones, Major Gothel D. Wilkins, Ronald Freake, M.D., Roger D. Saylors, M.D., Captain Eugene Koziatek, Sgt. Byron Glick, Lt. Robert McKee, Officer John M. Sharp, Lt. John Riggs, Officer Bill J. Kennedy, and Lt. David G. Oden. Riggs is deceased. Saylors is no longer employed at the Prison and is not serving the Prison under contract. Kennedy is no longer employed at the Prison. In cases of this kind, this Judge is every mindful of the limited right the federal courts have to adjudicate claims that arise from state prison confinement. Noted opinions have been handed down from every level of the federal court system that advise extreme caution in adjudicating claims that essentially involve the general administration of a state prison and do not reach, as they must, the level of constitutional violations. Justice Powell of the Supreme Court of the United States set forth the reason for this principle in striking and memorable language: “[T]he problems of prisons in America are complex and intractable, and more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.” Procunier v. Martinez, 416 U.S. 396 at 405, 94 S.Ct. 1800 at 1807, 40 L.Ed.2d 224 (1979). The Supreme Court of the United States has continuously expressed its adherence to this doctrine of restraint from undue interference in the administration of state prisons unless federal constitutional violations and deprivation are clearly evident. The principle has been enunciated again and again with a variety in the language. The dominant thought remains clear. The most recent statement of this settled principle is contained in Rhodes v. Chapman, --- U.S. ---, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), stating that courts must bear in mind that their inquires “spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Rhodes, supra, at ---, 101 S.Ct. at 2401, citing Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979). Federal judges must be circumspect not to interfere without warrant and subject themselves to the suspicion that “it is the office of the good judge to enlarge his jurisdiction.” 1 Works of Thomas Jefferson 121-22 (Federal ed. 1904). This Judge has indicated from the beginning of 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 and enter into the morass of the day to day operation of the prison. THE PLAINTIFF CLASS Plaintiffs have moved the Court to determine that this action should be maintained as a class action under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. A threshold requirement for class certification is the existence of a class which requires representation. Dolgow v. Anderson, 43 F.R.D. 472, 491 (E.D.N.Y. 1968), summary judgment rev’d, 438 F.2d 825 (2d Cir. 1971); Ridgeway v. International Brotherhood of Electrical Workers, 74 F.R.D. 597, 602 (D.Ill.1977). The class, as well as its members, must be clearly defined and identified with particularity. Williams v. Page, 60 F.R.D. 29, 34 (N.D.Ill.1973); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228, 231 (M.D.Pa.1978). The proposed class consists of “those prisoners who are, or may be in the future, confined at the Indiana State Prison, Michigan City, Indiana, in the custody of the Indiana Department of Correction.” This type of class has been described as “obviously definable and identifiable.” Inmates of Lycoming County Prison v. Strode, supra. In this context, it has further been said that: “The use of the class action form is a desirable and logical way to challenge prison conditions and it only makes sense to include future inmates. See Santiago v. City of Philadelphia, 72 F.R.D. 619 (E.D.Pa.1976); Miller v. Carson, 401 F.Supp. 835 (M.D.Fla.1975); Dillard v. Pitchess, 399 F.Supp. 1225 (C.D.Cal. 1975).” Inmates of Lycoming County Prison v. Strode, supra. Each potential member of the class is not required to be identifiable, but merely “circumscribed by some objective set of criteria.” Ridgeway v. I.B.E.W., supra; Carpenter v. Davis, 424 F.2d 257 (5th Cir. 1970). Plaintiffs’ definition of the class for which certification is now being sought clearly meets this requirement. See, generally, Alliance to End Repression v. Rochford, 565 F.2d 975, 977-978 (7th Cir. 1977). A second threshold requirement for class certification is that the representatives are members of that class. Equal Employment Opportunity Comm. v. Whirlpool Corp., 80 F.R.D. 10, 14 (N.D.Ind.1978); Inmates of Lycoming v. Strode, supra. This prerequisite has been described as “the most fundamental requirement of Rule 23(a).” E.E.O.C. v. Whirlpool Corp., supra. The named plaintiffs here are prisoners who are confined at the Indiana State Prison, Michigan City, Indiana, in custody of the Indiana Department of Correction. Complaint at 2 and 4 (Pars. 1 and 7), and, therefore, these representatives are members of the proposed class. A. The class is so numerous that joinder of all members is impracticable. The proposed class consists of the current prisoner population at the Prison, numbering approximately 1900 persons. The class would also include all those persons who, in the future, are incarcerated at I.S.P., potentially hundreds or thousands of additional class members. It is appropriate to include future inmates in a class action challenging prison conditions. Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978); Inmates of Lycoming County Prison v. Strode, supra, at 231. While numbers alone do not satisfy the numerosity requirement, they are a relevant consideration. In Swanson v. American Consumer Industries, Inc., 415 F.2d 1326 (7th Cir. 1969), it was held that 151 class members was a sufficient number to satisfy the requirement of F.R.Civ.P. 23(a)(1). Joinder of 1008 class members has also been held to be impracticable. Hopson v. Schilling, 418 F.Supp. 1223 at 1236-1237, as it has when the class included “hundreds of persons,” Ridgeway v. I.B.E.W., supra, at 603. The inclusion within the class of persons who will, in the future, be incarcerated at I.S.P. makes the class even more numerous, and makes joinder of all class members totally impracticable. It has been said that “the term ‘impracticable’ within the meaning of Rule 23(a)(1) does not refer to impossibility but only to difficulty or inconvenience.” Vernon J. Rockler and Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 339 (D.Minn.1971). Both the size of the proposed class here and its fluid, indeterminable nature render joinder unwise, imprudent and impractical, the essential elements of impracticability. 3B Moore’s Federal Practice, ¶ 23.05, pp. 271, 272 (1976); Swanson v. American Consumer Industries, Inc., supra, at 1333. Therefore, a class action is the procedural vehicle of choice in the present litigation. B. There exist questions of law and fact common to the class. The questions of law and fact common to the class in this action are: Whether the conditions, practices, and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their right to be free from cruel and unusual punishment as guaranteed to them by the Eighth and the Fourteenth Amendments to the Constitution of the United States; Whether the conditions, practices and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of due process of law as guaranteed to them by the Fourteenth Amendment to the Constitution of the United States; Whether the conditions, practices and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their right to free speech as guaranteed to them by the First and the Fourteenth Amendments to the Constitution of the United States; and Whether the conditions, practices, and policies of the Indiana Department of Correction and the I.S.P. deprive plaintiffs and the class of their rights to educational and rehabilitative programs, as guaranteed to them by Article I § 18 of the Constitution of the State of Indiana and by I.C. 11-1-1.-1-26 and 11-1-1.1-27 of the laws of the State of Indiana. A class action is particularly well-suited to this civil rights case alleging that certain conditions, practices, and procedures of defendants violate constitutional guarantees. Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala.1972), aff’d, 503 F.2d 1320 (5th Cir. 1974), cert. den., 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975); Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974); Battle v. Anderson, 376 F.Supp. 402 (E.D.Okl.1974). Courts have unhesitatingly certified classes when confronted with similar problems involving prisoners. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Johnson v. Rockefeller, 58 F.R.D. 42 (S.D.N.Y.1973); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff’d sub nom., Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971). C. The claims of the class representatives are typical of the claims of the class. The named plaintiffs have alleged deprivation of their statutory and constitutional rights by operation of challenged policies, practices and conditions of defendants. All of the named plaintiffs have an interest not only typical of but actually coextensive with that of the class. Each and every inmate of I.S.P. has an identical interest in seeing that the defendants are required to operate the I.S.P. so as not to deprive them of the rights guaranteed to them by the First, Eighth and Fourteenth Amendments to the Constitution of the United States. The claims of the representative parties and those of the class are based upon alleged violations of these same constitutional provisions. D. The class representative will fairly and adequately protect the interests of the class. The standard for adequacy of representatives under Rule 23(a)(4) is that the representatives must be of such a character as to assure the vigorous protection of the action so that the absent class members’ rights are certain to be protected. Hohmann v. Packard Instrument Co., 399 F.2d 711 (7th Cir. 1968). The first requirement is plainly met in this case. Named plaintiffs’ interests in securing their statutory and constitutional rights is co-extensive with the similar interests of all class members. Secondly, the named plaintiffs have a vital personal stake in the outcome of the case so as to insure zealous pursuit of the action. Rodriquez v. Swank, 318 F.Supp. 289 (N.D.Ill.1970), aff’d, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971). The second element of adequate representation is that the named plaintiffs’ counsel be sufficiently competent to conduct the proposed litigation. Sullivan v. Chase Investment Services, Inc., 79 F.R.D. 246 (N.D.Cal.1978); Jenson v. Continental Financial Corp., 404 F.Supp. 806 (D.Minn.1975). Plaintiffs are represented by attorneys from Legal Services Organization of Indiana, Inc., and Legal Services Program of Northern Indiana, Inc., both being legal services programs which have extensive experience in prison law and in protecting the rights of group litigants. Legal Services Organization has adequate resources available to fully pursue this action. The attorneys who are counsel of record in this case are experienced in conducting litigation of this type. Thus, plaintiffs’ counsel has the experience and the resources to protect and forward the interests of not only the named plaintiffs but also each member of the class. THE PRESENT CASE FALLS WITHIN THE CATEGORY OF CLASS ACTIONS IN WHICH THE PARTY OPPOSING THE CLASS HAS ACTED OR FAILED TO ACT ON GROUNDS GENERALLY APPLICABLE TO THE CLASS, THEREBY MAKING APPROPRIATE FINAL INJUNCTIVE AND DECLARATORY RELIEF WITH RESPECT TO THE CLASS AS A WHOLE. In addition to satisfying the requirements of Rule 23(a), the present actions falls within the criteria of Rule 23(bX2). The Notes of the Advisory Committee, 39 F.R.D. 69, 102 (1976), suggest that subsection 23(b)(2) is uniquely suited to civil rights actions to redress constitutional deprivations of large classes of persons. See also, Fujishima v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1972); Inmates of Lycoming County Prison v. Strode, supra, at 234; Hopson v. Schilling, supra, at 1237; Dixon v. Quern, 76 F.R.D. 617 (N.D.Ill.1977). These are two elements which must be present for an action to fall within 23(b)(2): “the defendants’ conduct or refusal to act must be ‘generally applicable’ to the class”; and, “final injunctive or corresponding declaratory relief must be requested for the class.” Kornbluh v. Stearns & Foster Co., 73 F.R.D. 307, 310. Both elements are met in the instant case. As has been previously set out in this memorandum, all class members in this case are being subjected to the conditions, policies and practices about which the named plaintiffs complain. In that light, it is clear that class relief would be the appropriate vehicle for resolution of this action, since the conditions, policies and practices will continue to apply to those who do not come within the scope of any final order. Since the constitutional violations complained of herein are based on practices, policies and conditions applicable to each and every member of the class, declaratory and injunctive relief with respect to the class as a whole may be appropriate. Therefore, the proposed class is certified pursuant to F.R.Civ.P. 23(a) and 23(bX2). II. INDIVIDUAL PLAINTIFFS’ CLAIMS A. Bruce Wellman Plaintiff Wellman was incarcerated at the I.S.P. from October 1976 to June 8, 1979. Approximately seven months of this period was spent outside the institution on court order. At the time of trial Wellman was not an inmate at the I.S.P. Wellman’s deposition was introduced into evidence and his claim is based on evidence found in that deposition. Plaintiff Wellman first contends that he was denied due process before the Conduct Adjustment Board (hereinafter C.A.B.), when they denied his request to have witnesses appear on his behalf and refused him the lay advocate of his choice. Plaintiff Wellman had requested that Albert Cornell be permitted to represent him but the C.A.B. provided inmate Arthur Wilson as lay advocate. The uncontradicted evidence is that Wellman appeared before the C.A.B. in December 1977 and asked that he be allowed to call three witnesses, all inmates. This request was denied without comment. Plaintiff Wellman contends this denial of his right to call witnesses violated procedural due process as required by Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Wolff, supra, recognized that prison inmates are entitled to a degree of the protections afforded by the due process clause in prison disciplinary proceedings. Id. at 555-556, 94 S.Ct. at 2974. The Supreme Court stated therein: We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate’s interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Wolff, supra, at 565-566, 94 S.Ct. at 2979. The Seventh Circuit Court of Appeals has addressed the limited right of inmates to call witnesses at disciplinary hearings. See Hayes v. Walker, 555 F.2d 625 (7th Cir.1977) (hereinafter Hayes I). In Hayes I, the Court of Appeals held that the district court erroneously dismissed the witness denial portion of Hayes' complaint because the record before the court did not permit “even limited review” of the disciplinary committee’s decision. The court stated: The Institutional Adjustment Committee offered in justification of its action only broad conclusory findings of possible hazard both to potential witnesses and to institutional security which applied to all of the proposed witnesses on plaintiff’s list. There is no indication in the record that the Institutional Adjustment Committee examined each proposed witness for the relative benefit or danger in his testimony. Similarly, this court cannot determine whether the broad conclusion applicable to all of the witnesses was improper as to individual witnesses. Since the record is barren of support for these broad conclusions, we find that the case must be returned to the district court for a determination of whether the Institutional Adjustment Committee’s decision was a proper exercise of discretion. We are not requiring that a statement of reasons be given to support the denial of a request for witnesses. We hold only that some support for the denial of a request for witnesses appear in the record. Hayes I, supra, at 630 (emphasis added) The Court of Appeals in Hayes I reversed and remanded the cause to the district court to determine if the complete administrative record justified the decision not to call witnesses. At trial the district court heard testimony from the Institutional Adjustment Committee members as to their basis for reaching their decision on Hayes’ request for witnesses. This testimony formed the basis for the district court’s decision that the Committee’s denial of Hayes’ request for witnesses was a proper exercise of discretion. The Court of Appeals, however, reversed this decision in Hayes v. Thompson, 637 F.2d 483 (7th Cir. 1980) (hereinafter Hayes II.) The court stated: Although it may be relevant to other issues in this case, it is clear that under Hayes I this subsequent testimony may not be considered in reviewing the Committee’s decision. The requirement of support in the administrative record is central to the effectiveness of judicial review in insuring that a prisoner has not be subjected to arbitrary action by prison officials. If subsequent testimony is allowed to substitute for support in the record, the Court can no longer assure itself that the Committee made a reasoned, well-founded decision. Such posthoc rationalizations are to be viewed with suspicion, and are not a proper basis for meaningful judicial review. Support in the administrative record is necessary to protect the prisoner from arbitrary official action, and is a minimum requirement of due process. Hayes II, supra, at 488. (emphasis added) The Court then concluded that the broad conclusory findings of the Committee in denying the request for witnesses were not adequate to allow judicial review. Therefore, the denial constituted an abridgement of Hayes’ due process rights. Here the conclusions must be the same. There is no evidence that plaintiff Well-man’s proposed witnesses were examined individually for the relative danger or benefit of their testimony. Nor is there any support in the record for the denial of Well-man’s request for witnesses. There is only a blank denial, barren of any rationale for support. This record provides no basis for meaningful judicial review so as to insure that a prisoner is protected from arbitrary government action. Hayes II, supra, at 488; Bono v. Saxbe, 620 F.2d 609, 619 (7th Cir. 1980). Therefore, the Court must conclude that the denial of Wellman’s request for witnesses violated his due process rights. This circuit in Bono, supra, at 619, approved the district court’s order which required the hearing officer to document his reasons for not calling witnesses or introducing documentary information. The district court required in Bono v. Saxbe, 462 F.Supp. 146 (E.D.Ill.1978), that: An inmate will be permitted to have witnesses appear and to present documentary evidence, provided that calling of witnesses or disclosure of documentary evidence would not jeopardize or threaten institutional security or individual safety, and further provided that the witnesses are available at the institution where the hearing is being conducted. The evidence must be material and relevant to the issue ... Where a witness is not available within the institution, nor permitted to appear, the inmate may submit a written statement by that witness. The hearing administrator shall, upon the inmate’s request, postpone the hearing to permit the obtaining of written statements. Repetitive witnesses need not be called. Reasons for declining to permit a witness or documentation shall be documented. Id., at 150. The circuit court further explained in Hayes II that the prison disciplinary committee must examine each proposed witness for the relative benefit or danger of his testimony. Hayes II, supra, at 486. The defendants shall comply with these aforementioned guidelines enunciated by the Court of Appeals in regard to an inmate’s right to call witnesses at a disciplinary hearing. Further, the conduct report at issue here shall be stricken from plaintiff Wellman’s institutional packet regardless of where he is incarcerated. Plaintiff Wellman secondly complains that he was denied the lay assistant of his choice at the disciplinary hearing. The Supreme Court in Wolff, supra, 418 U.S. at 570, 94 S.Ct. at 2981, stated that: [an inmate], “should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff”. Plaintiff Wellman has not criticized the ability of the lay advocate provided him in any way. Rather, he complains of not getting the advocate of his choice. This does not rise to a constitutional level because the C.A.B. fully complied with the requirements of Wolff in regard to lay assistance. This allegation is therefore without merit. Plaintiff Wellman’s third complaint is that in January 1978 he broke a tooth on a rock in the beans at the prison dining hall. Wellman allegedly asked to see the dentist a number of times but was told by an unnamed source that lockup people did not go to the hospital and to put aspirin in the tooth. Then nine months after the injury Wellman claims to have paid an inmate clerk three boxes of cigarettes for an appointment with the dentist. He saw the dentist immediately. This evidence was elicited by the defendant’s own attorney and stands uncontradicted. However, plaintiff Wellman’s proof on this issue lacks a critical element. There is no identified actor in this chain of events, neither guard, nor doctor or dentist, nor prison administrator, nor inmate. Plaintiff Wellman here seeks damages. A defendant’s direct personal responsibility for the claimed deprivation of a constitutional right must be established in order for liability to arise under 42 U.S.C. § 1983. Stringer v. Rowe, 616 F.2d 993, 1000-1001 (7th Cir. 1980); Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971). Nor is this a situation where a pro se pleading is being considered. See, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Duncan v. Duckworth, 644 F.2d 653 (7th Cir. 1981). Plaintiff Wellman was represented by able trial counsel who had named 17 defendants at the time of trial. Not one of those defendants is even mentioned in Wellman’s testimony; in fact, no individual is ever named or described. The trial of a lawsuit is the main event, the arena where the evidence must be put on. This Court heard one hundred and eleven witnesses and not one testified as to who the participants were in this scenario. The claim, if true, may state a claim under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), but plaintiff Wellman, with able counsel, has failed to put on any proof showing that any of the defendants were in any way personally responsible for the delay in his treatment. Therefore, the defendant has failed to prove his claimed denial of medical treatment and it is accordingly dismissed. Finally, the prison officials contend they acted in good faith on a belief that their actions conformed to the procedural requirements of Wolff, supra, and they should therefore be immune from damages. The Supreme Court has recognized a qualified good-faith immunity for state prison officials acting within the scope of their official responsibilities when damages are sought for constitutional violations under 42 U.S.C. § 1983. Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Accord, Knell v. Bensinger, 522 F.2d 720 (7th Cir. 1975). In Navarette, a state prisoner brought a § 1983 action against prison officials charging wrongful interference with his outgoing mail, a violation of his First Amendment rights. The Supreme Court held that the qualified immunity it had outlined for school officials in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), was applicable to state prison officials as well. The test enunciated in Navarette consists of two parts: Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailing to [the prison officials] if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm. ****** [T]he second branch of the Wood v. Strickland standard ... would authorize liability where the official has acted with “malicious intention” to deprive the plaintiff of a constitutional right or to cause him “other injury.” Navarette, 434 U.S. at 562, 566, 98 S.Ct. at 862, quoted in Chapman v. Pickett, 586 F.2d 22, 25 (7th Cir. 1978). It is this two-pronged test which we apply here. This denial of witnesses occurred in December 1977. The Wolff decision provided only that a request for witnesses may be denied if it will be unduly hazardous to institutional safety or correctional goals. Wolff, supra, 418 U.S. at 565, 94 S.Ct. at 2979. Not until this circuit decided Hayes II in December 1980 and Bono v. Saxbe in April 1980 was it “clearly established” that due process required documented support in the administrative record for a decision not to call witnesses. Thus, these defendants could not have reasonably known that Wolff could be read to require an administrative record more specific than the reasons enumerated in the Wolff decision. Therefore, the defendants are immune from damages for their denial of the witness request. B. Dwight Walker Plaintiff Walker has been incarcerated at the I.S.P. for seven years. He has raised two separate individual claims for damages. First, plaintiff Walker contends that excessive force was used to effectuate a strip search of his person, and second, that during his incarceration he was placed in segregation units without any notice as to why he was being locked up. In December 1978 plaintiff Walker was summoned to testify in a criminal matter in Pulaski County, Indiana. Captain Koziatek informed Walker that he would have to be strip searched before leaving the prison. Walker refused to be strip searched and was warned he would have a conduct report if he did not comply. Walker still refused to submit to the search. On his return to the prison Walker was taken to I.D.U. lockup unit by Lt. Oden. Walker was then asked to step out of his clothes for a strip search and he did so. Lt. Oden then ordered Walker to stick his finger in his mouth, lift his genitals, and bend over and spread his buttocks for a visual rectal inspection. Walker refused to submit to this portion of the search. Lt. Oden then grabbed Walker around his neck and Officer Kennedy grabbed Walker’s arm and twisted it up behind his back in an attempt to bend Walker over to subject him to the visual cavity search. Plaintiff Walker contends that Sergeant Riggs (deceased at the time of trial) rammed him with his knees in this altercation. Lt. Oden testified that Sgt. Riggs was about six feet away from Walker making the visual examination of the rectal area. It is extremely convenient that the person alleged to have used the most force, Sgt. Riggs, is unable to testify on his own behalf. Nor is this claim supported by any witness other than the plaintiff. For those reasons this Court discredits this allegation against Sgt. Riggs that he struck Walker with his knee. Plaintiff Walker further contends that the force employed was so excessive as to cause him personal injury. The uncontradicted facts establish that all inmates when returning from outside the institution are strip searched. The Supreme Court of the United States addressed the issue of strip searching inmates with the visual inspection of body cavities in Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1978). The court recognized that these searches were necessary not only to discover but also deter the smuggling of weapons, drugs, and other contraband into a prison. In Wolfish, the court concluded that strip searches, including the exposure of body cavities for visual inspection, did not violate the Fourth Amendment prohibition against unreasonable searches. Id., at 558, 99 S.Ct., at 1884. However, the court went on to say that the searches must be conducted in a reasonable manner. Reasonableness under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Wolfish, supra, at 558, 99 S.Ct., at 1884. The evidence here indicates that the smuggling of contraband is a serious problem in this institution, just as it is in other correctional facilities. See, e. g., Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. en., 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973). The Supreme Court, in balancing this institutional interest in security against the privacy interest of the inmates, determined that such a search was constitutional. The question here is whether the force used to administer this search was so excessive as to become actionable under § 1983. See Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. den. sub nom., Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Johnson, supra, clearly establishes that prison officials violate due process upon making an unprovoked attack on a pretrial detainee. Id., at 1033; Lock v. Jenkins, 641 F.2d 488, 495 (7th Cir. 1981). Judge Friendly, speaking for the court in Johnson, provided this structure for analysis: Although “the least touching of another in anger is a battery,” [citation omitted], it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983. The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Johnson, supra, at 1033. [emphasis added] The Seventh Circuit has applied this same analytic framework to the treatment of convicted persons which thus invoked the Eighth Amendment rather than the Due Process Clause. Stringer v. Rowe, 616 F.2d 993, 998-999 (7th Cir. 1980); Lock, supra, at 496, n.13. In order to establish a violation of the Eighth Amendment, a plaintiff must show that prison officials intentionally inflicted excessive or grossly severe punishment on him or knowingly maintained conditions so harsh as to shock the general conscience. Stringer, supra, at 998; United States ex rel. Miller v. Twomey, 479 F.2d 701, 719-2 (7th Cir. 1973), cert. den. sub nom. Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974). The essential question then becomes whether this use of a force constituted cruel and unusual punishment. Stringer, supra, at 999; see also, Meredith v. Arizona, 523 F.2d 481 (9th Cir. 1975). This Court is well aware of the demanding and often dangerous position of prison guards in the institutional society. Here the guards, when faced with a recalcitrant inmate, applied physical force. They laid hands on plaintiff Walker but there is no claim of the use of gas, mace, fists, or clubs. In this situation where Walker had been outside the institution, possibly unsupervised at times, the strip search becomes a necessity. To allow the inmate to thwart the rectal inspection by mere refusal would be to provide a conduit for contraband. Legion are the cases in which inmates have attempted to smuggle contraband into an institution by concealing it in body cavities. See, e. g., United States v. Ferraro, 590 F.2d 335 (6th Cir. 1978); United States v. Park, 521 F.2d 1381 (9th Cir. 1975). Here the officers applied only enough force to bend Walker over to view his rectal area. This was a good faith effort to maintain institutional security. And although Walker claims he was injured, his testimony is conflicting. At one point he complains of a back injury and at another it is a neck injury. However, on January 3, 1981 he registered no complaint about his back or neck, instead he complained of his thumb. Accordingly, his hand was x-rayed on January 5, 1981 and shown to be normal. In light of these considerations the Court must find that the force used in conducting this involuntary visual rectal inspection was not excessive. It was not so severe or excessive as to shock the conscience in violation of the Eight Amendment. In fact, it was reasonable under the circumstances. Therefore, this claim is without merit. Plaintiff Walker’s second claim is that he was locked up in segregation on several occasions without any notice as to why he was being locked up. Walker testified he had been locked up without a hearing in March or April of 1975, and periodically through the years of 1977, 1978 and 1979. His contention is that he never received notice within 24 hours as to why he was locked up. Further, plaintiff Walker alleges he was denied the right to consult with his lay advocate in January 1979 until the day of the hearing. Walker also contends Acting C.A.B. Chairman Penfold gave him 60 days in lockup after he was found not guilty of all charges because “he had to be guilty of something”. (R. 139). Unfortunately, Mr. Penfold is not a defendant in any of these consolidated actions. Finally, plaintiff Walker contends he was put on administrative segregation status on April 4, 1978 without any notice as to the reason for it. And, he was subsequently released from A.S. without signing a conduct contract. This Court is aware that inmates often feel they are moved about by hidden forces beyond their control. However, to establish liability for any of these alleged procedural due process violations evidence which at least implicates any defendant is required. That evidence is lacking here. There is only general uncorroborated testimony that these lockups occurred. Yet no specific actor is ever named as responsible. This portion of plaintiff Walker’s claim suffers the same failure of specific proof as plaintiff Wellman’s allegation of denial of medical treatment. The Court refers to and incorporates by reference that analysis here. There is no evidence identifying any of the named defendants as the actor responsible for any part of the alleged violation. Therefore, these allegations must fail for lack of proof under Adams v. Pate, supra, at 108. C. Achebe Habib Lateef Plaintiff Lateef is currently an inmate at the I.S.P. and was first incarcerated there on September 5, 1975. He was assigned to a job in the I.S.P. library in 1975 and was employed there continuously until June 27, 1980. The library was considered to be a desirable place to work. On June 27, 1980 plaintiff Lateef was transferred from the I.S.P. to the Indiana Reformatory. This was the first in a series of four institutional transfers for Lateef in a four month period. Plaintiff Lateef contends that this series of transfers were solely for the purpose of personal harassment. Plaintiff Lateef was transferred to the Indiana Reformatory on June 27, 1980. On that date he received a notice from the Director of Classification informing him that effective immediately he was being transferred to the reformatory where he would enter the general population. The notice stated that this was an administrative transfer in Lateef’s best interest as well as that of the institution and that this was not a disciplinary transfer. Lateef was confined at the Indiana Reformatory from June 27, 1980 until August 12, 1980 at which time he was transferred to the Indiana Department of Correction’s Reception and Diagnostic Center. At the Reception and Diagnostic Center plaintiff Lateef was interviewed by a psychologist on one occasion for about an hour and the classification director a number of times. Lateef did not undergo any tests. On September 3, 1980, after approximately 21 days at the Reception and Diagnostic Center, plaintiff Lateef was transferred back to the Indiana Reformatory where he was assigned to the general population. Then on October 29, 1980 Lateef was returned to the I.S.P. and assigned to the N.S.B. lockup unit. Plaintiff Lateef contends that this series of transfers were for the purpose of harassment and retaliation. As a result of these transfers Lateef alleges as damages that his contacts outside the prison have been disrupted, that he lost property, including clothing and books, and that he developed assorted medical conditions. On November 17, 1980, plaintiff Lateef was advised by the I.S.P. Classification Committee that unless he signed a behavior modification contract he would be placed on indefinite administrative segregation and confined to a lockup unit. Lateef, (Tr. 70). At the hearing of the Classification Committee on November 17, 1980, the committee gave plaintiff Lateef several reasons why he was being assigned to administrative segregation. The contract which was proposed to plaintiff Lateef would have required that he work in the soap shop for approximately a year, he not receive a conduct report for 12 months, he be denied evening recreation for a period of six months, and other miscellaneous restrictions. The job in the soap shop which was required by the behavior modification contract was not as desirable a job as plaintiff Lateef held in the prison library prior to his transfer to the Indiana Reformatory and plaintiff Lateef considered it to be a form of punishment. At this meeting of the Classification Committee on November 17, 1980, plaintiff Lateef was presented with a memorandum from the Director of Classification outlining the reasons why he believed a behavior contract was appropriate. This document referred to Lateef’s involvement in the takeover of C cell house in April 1980, which included the taking of hostages and his involvement with the planning of a work stoppage while at the Indiana Reformatory. This later incident was the stated reason for Lateef’s transfer back to the I.S.P. Based on this past conduct, the Director of Classification determined that Lateef’s behavior needed modification and recommended this contract in population. Plaintiff Lateef refused this contract and has remained in N.S.B. lockup or administrative segregation. On N.S.B. lockup Lateef is confined to his cell 22 hours a day and allowed out two hours a day for recreation in the walkway in front of the cells. The Executive Director of Adult Authority, Indiana Department of Corrections, Mr. Schuler, testified that he was aware of the reasons for the transfers of plaintiff Lateef. This testimony essentially expands the written reasons provided to Lateef, particularly in regard to the takeover of C cell house and the work stoppage at the Indiana Reformatory. Additionally, Mr. Schuler was briefed in regard to the previous conduct of Lateef while incarcerated prior to these transfers. Further, Mr. Schuler received a report from the Reception and Diagnostic Center after Lateef’s evaluation, that there was no assistance they could provide there. And finally, Schuler testified that no prisoner had ever been sent to the Diagnostic Center to punish or harass him. The threshold question regarding Lateef’s complaint must be whether these transfers between institutions within the |ame state infringed a liberty interest protected by the Due Process Clause. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), the Supreme Court considered the conditions that must be present for a prisoner to be entitled to a hearing before his transfer from one state prison to another prison within the same state. The court “held in Meachum v. Fano, that no due process liberty interest of a duly convicted prison inmate is infringed when he is transferred ..., whether with or without a hearing, absent some right or justifiable exception rooted in state law that he will not be transferred except for misbehavior or upon occurrence of other specified events.” Montanye, supra, at 243, 96 S.Ct. at 2547. In adopting this standard the Seventh Circuit Court of Appeals has recognized that a prisoner may have due process rights as a result of entitlements created by prison regulations and by official policies or practices. Arsberry v. Sielaff, 586 F.2d 37, 47 (7th Cir. 1978); see also, Stringer v. Rowe, 616 F.2d 993 (7th Cir. 1980); Anthony v. Wilkinson, 637 F.2d 1130 (7th Cir. 1980). Critical in this analysis is plaintiff Lateef’s claim that these transfers were punitive in nature. This is important because Wolff v. McDonnell, supra, is undisturbed by Meachum and Montanye, and disciplinary measures which represent a change in conditions of confinement give rise to procedural due process requirements. Thus, if Lateef could establish that his transfer was disciplinary, he has stated a valid claim. Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir. 1981); Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1978), cert. den., 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979). However, there is no evidence of that in this case. The transfers to other institutions were not followed by any disciplinary punishment or loss of good time. Rather, the transfers appear to be the result of confrontations between Lateef and individuals in the institutions in which he was incarcerated. The Executive Director of the Adult Authority testified that it was their approach to remove such individuals, from the scene of the confrontation to a neutral environment to better enable them to adjust to their confinement. He further testified that this was one of the principal reasons behind Lateef’s transfer and that these transfers were not disciplinary in nature. This testimony is fully supported by the record of Lateef’s involvement in the takeover and hostage seizure of C cell house at the I.S.P. Nor does the Indiana Code restrict prison officials' decisions to transfer an inmate from one institution to another in any way. This Court can find no statutory or regulatory creation of a right for a prisoner to serve in any particular institution or be entitled to a hearing of any kind prior to a transfer to another institution. Therefore, plaintiff Lateef’s claim is without merit and is hereby denied. Plaintiff Lateef also alleges that he lost a laundry bag full of clothing and personal items which he last saw in the hand of defendant Officer Bill Kennedy. After losing this property on December 15, 1977, Lateef filed a grievance with respect to this lost property but contends he has not received a response to the grievance nor been compensated for his lost property. This property is alleged to consist of clothing, personal pictures, a picture album, a watch, and a pair of eyeglasses. The essence of this claim is that plaintiff Lateef has been deprived of his property without due process of law. This evidence stands uncontradicted. The Supreme Court has recently addressed this identical issue in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), citing with approval Bonner v. Coughlin, 517 F.2d 311 (7th Cir. 1975), mod. en banc, 545 F.2d 565 (1976), cert. den., 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). In Parratt an inmate of a Nebraska prison ordered by mail certain hobby materials. After being delivered to the prison, the packages containing the materials were lost when the normal procedure for receipt of mail packages was not followed. Parratt brought a § 1983 action against the prison officials to recover the value of the hobby materials, claiming that the officials had negligently lost the materials and thereby deprived him of property without due process of law in violation of the Fourteenth Amendment. The value of the items in Parratt was $23.50. Accordingly, the initial inquiry in Parratt and here must focus on two elements to a § 1983 action: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. It is unquestionable that the alleged conduct by the corrections officer in this case satisfies the “under color of law” requirement. Parratt, supra, at 1913. Officer Kennedy was a state employee in a position of considerable authority. Nor is it contended otherwise. The inquiry must therefore turn to the second requirement. The claim here refers to no other right, privilege or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment. Unquestionably, Lateef’s claim satisfies three prerequisites of a valid due process claim: the defendant acted under color of state law; the previously listed items fall within the definition of property; and the alleged loss amounted to a deprivation. However, the Supreme Court held in Parratt that standing alone these three elements do not establish a violation of the Fourteenth Amendment. Parratt, supra, at 1913. The court reasoned as follows: Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive rer dress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1976). Through this tort claims procedure the state hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question but respondent did not use it. It is argued that the State does not adequately protect the respondent’s interests because it provides only for an action against the State as opposed to its individual employees, it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process. This analysis cited above is the proper manner to approach a case such as this. Here a guard took the plaintiff’s personal property and while we do not know what happened to it, we know that it was not properly preserved for Lateef. Likewise, the State of Indiana provides a remedy to redress property loss or damage inflicted by a state officer through the Indiana Tort Claims Act, I.C. 34-4 — 16.5-1 et seq. This act became effective February 19, 1974 and was therefore in effect when plaintiff Lateef’s loss occurred. It may reasonably be concluded, therefore, that the existence of an adequate state remedy for property damage inflicted by a state officer avoids the conclusion that there has been any constitutional deprivation of property without the due process of law within the meaning of the Fourteenth Amendment. Parratt, supra, at 1916. For the foregoing reasons this claim is denied. D. Raymond Hurt Plaintiff Hurt was incarcerated at the I.S.P. from 1973 until November 1980, except for approximately six months in 1974 when he was on parole. Plaintiff Hurt did not personally testify in this action, the evidence of his claims is based solely on his deposition which was admitted into evidence. Hurt was confined to N.S.B. and I.D.U. lockup units from 1976 to April 1979. He complained that in 1976 and prior to then he received food with roaches in it. No more specific evidence was provided and no foreign objects had been found in his food since 1976. There is no allegation of personal injury stemming from this evidence. It will be further considered herein with the food services. Plaintiff Hurt contends that approximately $300.00 worth of his personal property was lost in April 1979. The specific items included a radio, books, and clothing. However, no defendant is named in this allegation so it must fail for lack of proof under Adams v. Pate, supra, and the Court refers to and incorporates here the same analysis as previously applied to Plaintiff Wellman’s claim for denial of medical treatment. Further, the Court refers to and incorporates here the analysis under Parratt, supra, as previously applied to plaintiff Lateef’s claim for lost personal property. In light of those aforementioned cases, this claim is denied. Next Hurt alleges that he was denied his medication for asthma and had a difficult time obtaining that same medication in the lockup units. Hurt testified that he asked Dr. Saylors and Lt. Oden for his medication and was informed one time that the Warden had instructed them not to give out any medication in the lockup units. No date was ever established for these events. Dr. Mai, one of the staff physicians at the I.S.P., testified that sometimes there had been a delay in receiving supplies but that it had never interfered with the activity of the hospital. Mr. Freake, the Hospital Administrator, also testified that there was some delay in receiving medical supplies on orders of over $200.00 because they required approval of the Purchasing Department in Indianapolis. However, during these delays any shortages were filled by Memorial Hospital without delay. Finally, the Warden testified that he has not attempted to influence the medical staff in the administration of any medication to any particular inmate, and, that he has never overruled a prescription. In Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), the Supreme Court held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’, Gregg v. Georgia, 428 U.S. 153, at 173, 96 S.Ct. 2909, at 2925, 49 L.Ed.2d 859 (joint opinion), proscribed by the Eighth Amendment.” “This is true,” said the Court, “whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id., 429 U.S. at 104-105, 97 S.Ct. at 291. This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoners medical needs to be serious. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); West v. Neve, 571 F.2d 158, 161 (3d Cir. 1978). A medical need is serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977). Traditionally, a plaintiff must show not only that the defendant was callously indifferent to his medical needs, but that those needs were serious, and that the failure to treat them resulted in personal injury. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976). Here plaintiff Hurt alleges only that he was denied his medication on one occasion and that he had difficulty obtaining it on other occasions. Giving the plaintiff all favorable inferences this one denial may constitute deliberate indifference but the evidence of this situation fails to support the requisite gravity. It is not every injury or illness that invokes the constitutional protection, only those that are serious and have that effect. Hampton, supra, at 1081. Due to this failure of proof on the second prong of the test, this claim must be denied. Plaintiff Hurt next alleges that on one occasion he appeared by the C.A.B. and asked for witnesses and a lay advocate. He was told he could have them and the case was continued. However, before the next hearing date on this matter, plaintiff Hurt received a six month disciplinary action in the mail. This was prior to Hurt’s opportunity to appear with assistance and present evidence. Inmate Brooks, on Hurt’s request, appealed this to an Indiana State Court which resulted in the C.A.B. dismissing the charge altogether. Plaintiff has not alleged that any of the defendants were involved in this incident or when it occurred. Nor has any damage been alleged. In fact, by Hurt’s own admission the alleged wrong has already been remedied by a state tribunal. Therefore, this claim is without merit and is accordingly denied. Plaintiff Hurt next complains that in August 1979 he received one item of legal mail which had been opened outside of his presence. Further evidence indicated that mail is delivered five days a week and is delivered to inmates by 2:30 o’clock P.M., except for heavy days when first class mail is given priority. No mail is censored and only non-legal mail is opened to inspect for contraband. Non-legal mail is opened by the clerk outside of the presence of the inmate. If legal mail is suspected of having contraband in it, it is opened in the presence of the inmate. Legal mail is from time to time opened by accident due to the volume of the mail or the failure of the sender to clearly mark it as legal mail. On those occasions the legal mail is usually hand delivered to the inmate and he is told it was opened by mistake. The testimony of plaintiff Walker bears this out. The Supreme Court of the United States first addressed the issue of censorship and regulation of inmate mail in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). In Procunier, supra, the court found that prison mail regulations providing for censorship were properly invalidated by the district court since they authorized prison officials and employees to apply their own personal prejudices and opinions as standards. Then in Wolff v. McDonnell, supra, the court held that mail between an attorney and a client, who was an inmate, was protected by the Sixth Amendment and could not be read by the prison officials. Further, if such legal mail is suspected of containing contraband that mail must be opened in the presence of the inmate. 418 U.S. at 577, 94 S.Ct. at 2985. The court also stated that “by acceding to a rule whereby the inmate is present when mail from attorneys is inspected [the petitioners] have done all, and perhaps even more, than the Constitution requires.” • Id. The mail regulations as developed here fully comply with these standards. What the plaintiff contends and the