Full opinion text
MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER RYAN, District Judge. Introduction Each of these actions was brought by Mr. Walter D. Balia, an inmate of the Idaho State Correctional Institution (ISCI), alleging constitutional deprivations taking place at ISCI. Each of these cases was previously consolidated by the Honorable Ray McNichols, District Judge, and a class of persons was certified under Rule 23 of the Federal Rules of Civil Procedure described as “all persons confined at the Idaho Correctional Institution, Main Site, located south of Boise, Idaho, as of May 13, 1981, together with all persons confined there between the period of May 13, 1981, and the entry of final judgment in this case.” Initially, this ‘ court had reservations about the ability of the class representative (Inmate Walter Balia) to fairly and adequately protect the interests of the class. By reason of these reservations, the court attempted to procure an attorney or attorneys to represent these pro se litigants. The court was not successful in obtaining attorney representation for the pro se litigants, and perhaps even if an attorney could have been found, it would have resulted in a significant delay in the ultimate resolution of these eases, which cases were crying to be heard and disposed of. The court thereupon, in February 1984, appointed Mr. Dean Schwartzmiller, an inmate at ISCI, as lead lay counsel. Mr. Balia and Mr. Schwartzmiller thereafter shared responsibilities for the presentation of the inmates’ cases. After reading the pleadings in these cases, the court determined that although the pleadings were very rambling and sometimes incoherent, they generally alleged eighth and fourteenth amendment deprivations along with numerous pendent state claims, together with prayers for relief of declaratory judgment, injunction and damages. In order to try these cases, the court was faced with a real management problem, to bring together and cause to be tried a sensible and coherent case where all parties could then have some sense of direction in order to put on their evidence in a somewhat orderly fashion. After holding a pretrial hearing and status conference at the prison site, the court scheduled the trial to begin on March 5, 1984, and caused the trial to be bifurcated and to deal only and strictly with the requests for declaratory and injunctive relief prayed for by the plaintiffs. The issue of damages, should it be necessary to reach their merits, will be tried separately. The court ordered that it would not consider any pendent state claims asserted by the plaintiffs. Further, pursuant to Rule 16(c)(1) of the Federal Rules of Civil Procedure, the court ordered that it would entertain evidence only upon plaintiffs’ allegations of constitutional deprivations which relate to their eighth amendment claim of cruel and unusual punishment and their fourteenth amendment claim of denial of due process. Within the ambit of these two alleged constitutional deprivations, there appeared to be a number of disputed factual issues. Among the factually disputed issues relating to cruel and unusual punishment under the eighth amendment claim, the court set them forth in its pretrial order as follows: (1) whether or not the prison is in fact overcrowded; (2) whether or not the classification system presently in use is constitutionally defective because it fails to rehabilitate the inmates, debilitates the inmates, and subjects them to physical and sexual assault; (3) whether or not the classification and disciplinary systems as implemented by the Board of Corrections are constitutionally impermissible; (4) whether or not the medical care and/or the lack thereof results in deliberate indifference to the serious needs of the inmates; and (5) whether or not the food services are constitutionally inadequate as part of the general conditions of confinement. The due process allegations under the Pretrial Order centered around three factually disputed issues, which are: (1) whether or not there was a wholesale reclassification of the prison population without notice or an opportunity to be heard, with the attendant argument that such a wholesale reclassification gives rise to due process protections; (2) whether or not due process rights are afforded and required at individual reclassification hearings; and (3) whether or not due process of law has been afforded and is required at parole hearings. The trial ended after thirteen days of testimony. The court established a briefing schedule for submission of post-trial briefs and memoranda. Those memoranda have been received and reviewed and studied by the court. Finally, on June 19,1984, the court undertook an inspectional tour of ISCI. Included in the tour were the reception and diagnostic unit; the infirmary; the gymnasium, A-Block (medium custody); Housing Unit 9, including Tier C (protective custody) and Tier A (close custody); Housing Unit 7, including Tier A (death row and isolation cell) and Tier C (administrative segregation); Housing Unit 8, including Tier A (detention), Tier B (close custody), and Tier C (close custody); and Housing Unit 10, Tier C (medium custody). There are three basic classifications of inmates at ISCI. Those classifications are medium custody, close custody, and maximum security. The major classifications represent a risk assessment undertaken by prison officials. Medium custody is composed of those individuals who are the least likely of any of the three categories to attempt an escape or to cause a disruption or violence. The classifications of close custody and maximum security each contain various sub-categories. Within the major classification of close custody, there are inmates in protective custody, detention, and what may be referred to for these purposes as “typical.” Protective custody inmates are those isolated from the main yard population for their own safety. Protective custody inmates often have been the subject of homosexual rapes, or owe an unpayable debt to other inmates, and because of these situations have turned evidence about their situation over to prison authorities. Those persons in detention are those who have committed some transgression in violation of institutional rules and are in detention for a period of time as punishment for their violation. The “typical” close custody inmate is in close custody because he is an administrative risk as demonstrated by his prior record, propensity for escape, or his history of disciplinary reports which indicate that he is unfit for activity unless it is closely monitored. Within maximum security there are two sub-categories: administrative segregation and death row. Those inmates in administrative segregation present an even greater threat to institutional security and possibility of flight than do those inmates in close custody. This suit deals primarily with the main site of ISCI. There are a number of individuals in the minimum security facility located near the main site which is referred to as the “farm dorm.” The conditions of confinement at the farm dorm are not properly before this court for determination at this time. However, there are aspects of these cases which specifically overlap with the evidence adduced at trial, and to that extent the minimum security facility is a portion of this litigation. For example, the health care at the main site is the only health care available at ISCI and as such, is used by both inmates at the main site and the farm dorm. Necessarily, the health care relates to the minimum security inmates at the farm dorm. Unless specifically referred to in this opinion, later in the Findings of Fact and/or Conclusions of Law the court speaks only to the main prison site south of Boise, Idaho. Scope of Judicial Review This court believes that the scope of its judicial review has been well defined by the Ninth Circuit Court of Appeals. In Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), Judge Clifford Wallace stated on behalf of the Ninth Circuit panel: In entertaining a cause of action alleging Eighth Amendment violations in a state prison, federal courts must be cognizant of the limitations of federalism and the narrowness of the Eighth Amendment. Federal courts lack the power to interfere with decisions made by state prison officials, absent constitutional violations. Courts must recognize that the authority to make policy choices concerning prisons is not a proper judicial function. Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). Any needed prison reform is an executive and legislative responsibility. The function of a court is limited to determining whether a constitutional violation has occurred, Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 2400-01, 69 L.Ed.2d 59 (1981), and to fashioning a remedy that does no more and no less than correct that particular constitutional violation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.S. [1] at 16, 91 S.Ct. [1267] at 1276 [28 L.Ed.2d 554 (1971)]. The Eighth Amendment is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Rhodes v. Chapman, supra, 101 S.Ct. at 2400; Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir.1978), rev’d on other grounds sub nom., Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Rather, the Eighth Amendment proscribes the “unnecessary and wanton infliction of pain,” which includes those sanctions that are “so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S.Ct. 2909, 2925, 2929, 49 L.Ed.2d 859 (1976). See also Rhodes v. Chapman, supra, 101 S.Ct. at 2399. This includes not only physical torture, but any punishment incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). See also Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). In determining whether a challenged condition violates “evolving standards of decency,” courts may consider opinions of experts and pertinent organizations. But these opinions will not ordinarily establish constitutional minima. What experts may consider desirable may well constitute appropriate goals to which the other branches may aspire but they do not usually establish those mínimums below which the Constitution establishes a prohibition. See Rhodes v. Chapman, supra, 101 S.Ct. at 2400 n. 13. Indeed, they weigh less heavily in this determination than what the general public would consider decent. Id. D. Analytical Framework. In analyzing claims of Eighth Amendment violations, the courts must look at discrete areas of basic human needs. As we have recently held, “ ‘[A]n institution’s obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.’ ” Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.1981) (Wright), quoting Wolfish v. Levi, supra, 573 F.2d at 125. In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements. Courts may not find Eighth Amendment violations based on the “totality of conditions” at a prison. Wright, 642 F.2d at 1132____ There is no Eighth Amendment violation if each of these basic needs is separately met. If a challenged condition does not deprive inmates of one of the basic Eighth Amendment requirements, it is immune from Eighth Amendment attack. A number of conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation. As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.” Id. at 1133. This is no more than a recognition that a particular violation may be the result of several contributing factors. “But the court's principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations.” Id. To find an Eighth Amendment violation, courts must identify specific conditions that fail to meet Eighth Amendment requirements. We cannot rely on a vague conclusion that the “totality of conditions” violates the Eighth Amendment. Wright is also critical to the determination of an appropriate remedy. Arguably, under the “totality of conditions” approach, courts may be justified in ordering broad remedies to correct all the conditions that combine to create the “violation.” Under our approach, only the specific conditions that violate the Constitution may be remedied, and the remedy may be only so much as is required to correct the specific violation. A remedy may go beyond this only when there is a record of past constitutional violations and violations of past court orders. See Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978). In ordering a remedy, courts must consider the cost of compliance and the effect on legitimate security needs of the prison. Wright, 642 F.2d at 1134. Courts should consider bona fide steps that prison officials are taking to alleviate poor prison conditions. This is not to say that such steps necessarily obviate the need for a remedy. Rather, the court should defer to the policy choices made by prison officials and order a remedy consistent with the basic approach taken by prison officials, unless that approach itself is inconsistent with the Eighth Amendment. See Bell v. Wolfish, supra, 441 U.S. at 562, 99 S.Ct. at 1886. Id. at 1246-47 (footnote omitted). In the area of overcrowding and idleness, there was much testimony and complaints of debilitation and a cry for programs of rehabilitation. Rehabilitation and the returning of inmates to society as useful and responsible citizens is, of course, a laudable and correct and worthwhile goal. However, rehabilitation is not constitutionally required. Such commendable goals would certainly be encouraged by this court, but are better left to the Idaho State Legislature and executive policy. The problems at ISCI and 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 state government. Courts are ill-equipped to deal with the increasing urgent problems of prison administration and reform. This court’s recognition of that fact reflects no more than a healthy sense of realism. FINDINGS OF FACT Food 1. Prior to trial there was a disparity between the quantity and quality of food being served those prisoners in medium custody and those prisoners in either maximum security or close custody. Those inmates in medium custody were being served at Pendyne, the cafeteria facility. Those inmates in close custody and maximum security were being served on the tiers where their cells are located. Food portions for inmates in close and maximum were being meted out and placed on individual trays at the Pendyne facility, and then transported via an automated cart to the individual housing units. Those housing units are some distance away and an almost universal complaint was that if the food was meant to be served hot, it was either lukewarm or cold, and that if it was intended to be served cold or frozen, it was lukewarm or melted when it was served. 2. There was evidence that the quantity of food served to those inmates in close custody and maximum security was significantly less than that served to inmates in medium custody at Pendyne. This evidence was corroborated by defendants’ own witness Agnes Foley, a registered dietitian for the Idaho Department of Health and Welfare. Ms. Foley conducted tests on representative samples from the main line at Pendyne and compared it with a portion destined for close custody. In analyzing the two different portions, Ms. Foley determined that the portion of food served at the main line of Pendyne, excluding the salad bar which she was unable to assess since there was no readily identifiable quantity, amounted to 2,812 calories. Defendants’ Exhibit No. 332. On the other hand, the representative sample for those inmates in close custody or maximum security amounted to 1,606 calories. Defendants’ Exhibit No. 332. In other words, defendants’ own witness testified that persons in medium custody were receiving nearly half again as much food as those inmates in close custody or maximum security. The calculations of Ms. Foley increased to 3,475 calories for medium custody inmates and 2,297 calories for inmates in close custody or maximum security when planned beverages were included. It was Ms. Foley’s conclusion that while there was a significant disparity between the caloric content of the food received by medium custody inmates and those in either close custody or maximum security, that both quantities were within the recommended dietary allowances of the American Dietetic Association. 3. Regardless of what the situation was prior to and during trial, the court has learned that prison officials have dramatically altered the food service to maximum security and close custody inmates in the intervening months between the conclusion of the trial and the writing of this opinion. Presently, the administration at ISCI has implemented a program whereby the foods destined for close custody and maximum security are transported in bulk to the individual housing units and served at that point. The result is that inmates in close custody and maximum security receive a better quality and larger quantity of food. As a result of the implementation of this method of dispensing food, the representative of the class, Mr. Balia, has informed the court that the problems associated with food have been alleviated. 4. There remain problems with specific diets of particular inmates. Inmates John McGonnigal and Donald Kerst, both of whom suffer from diabetes, testified that they had experienced difficulties in receiving appropriate diets. In Mr. McGonnigal’s case, he was unable to procure enough food to supplement his caloric intake for his medical condition. In Mr. Kerst’s instance, he was prescribed a high protein diet, limited to 1,800 calories, to be coordinated with his injections of insulin. In Mr. McGonnigal’s case, he collapsed after going to Pen-dyne and receiving a juice which was artificially sweetened with saccharine. In Mr. Kerst’s case, he is now legally blind, suffering from diabetic retinopathy, because of his inability to control his diabetic condition. 5. Inmate Kenneth Volker suffers from Crohn’s Disease. As a result of that disease, he is supposed to limit his diet to low residue, low fat, low starch, and low grease food products. In an effort to accommodate Mr. Volker’s diet, Physician’s Assistant Stedfeldt authorized a double serving for Inmate Volker at the Pendyne cafeteria. After some three months on this “diet,” Inmate Volker suffered a relapse which resulted in his hospitalization. 6. The court finds that the problems regarding the disparity between quality and quantity of food being served to inmates in medium custody and those in maximum security and close custody has been alleviated and is now moot. However, the officials at ISCI have been reluctant to accommodate inmates with regard to diets needed for specific health and dietary problems. Clothing 7. The clothing worn by inmates in medium custody and close custody was of good quality cotton and appeared adequate for the conditions in which it was being worn. 8. The clothing being worn by inmates in protective custody is lightweight cotton uniforms which were previously owned by Hughes Airwest Company. The multi-colored (yellow and blue) uniforms do an adequate job of setting those inmates in protective custody apart from other custody levels, but insofar as warmth is concerned, they are inadequate. These lightweight uniforms, many of which were ripped up the seams to approximately knee level, did not afford sufficient warmth for the temperature of the courtroom on the days of trial, much less would they provide adequate warmth in a prison environment. It was noted by the court during its visitation at ISCI, that the protective custody inmates, at least while confined to the unit, appeared to be wearing all manner of different clothing, including sweatsuits and other civilian apparel. Health Care Delivery System Medical Care: 9. In 1979, the Idaho Department of Corrections commissioned a study to develop a comprehensive master plan to analyze the existing facilities and develop a course of action for the future. The group commissioned to produce the master plan published their findings in April 1982. See Plaintiffs’ Exibit No. 3A. With regard to the medical facility at ISCI, the commission had the following findings: Inadequate Medical Facility The current health care delivery system is not adequate according to a recently completed report by the Idaho Medical Association. The Psychiatric Unit of ISMF [Idaho Security Medical Facility] does not currently meet National Institute of Corrections, American Correctional Association and Idaho Health and Welfare Standards regarding: (1) physical standards on room size; (2) number of available beds; (3) psychiatric services; (4) number of therapy technicians; (5) occupational therapy services; and (6) number of fully equipped observational rooms. Medical care does not meet American Correctional Association, National Institute of Corrections and Idaho Medical Association Standards regarding: (1) number of medical staff; (2) dental services; (3) bed space; and (4) support staff. Idaho Department of Corrections, Master Plan, April 1982 at 51. 10. ISCI does not employ any full-time medical doctors. Medical doctors do, however, travel to the infirmary on a twice-weekly (Tuesday and Friday) basis for approximately four hours on each day. 11. The medical staff at ISCI consists of Mr. Hal Gaythwaite, medical services manager; Mr. Steven Stedfeldt, a licensed physician’s assistant; and Mr. Doug Barlow, a registered nurse and licensed nurse practitioner. Medical services are provided in large part by these three individuals. These three examine patients, refer patients to physicians, diagnose illnesses, suture cuts, and cast broken limbs. The medical staff is only available sixteen hours per day, seven days per week. Accordingly, emergency medical care is unavailable one-third of the time. Director of Corrections A1 Murphy testified that he is attempting to resolve this problem; however, as yet this inadequacy has not been alleviated. 12. Medical care is accessible only via a “kite” system. A “kite” is a medical request form submitted by an inmate which explains the problem being experienced by the inmate and which initiates medical review by the medical staff. See Plaintiff’s Exhibit No. 172. The kite system leaves a great deal to be desired. Evidence was produced which indicated that kites had been submitted by inmates and never responded to by the medical staff. The American Correctional Association, in its standards for adult correctional institutions, deems it mandatory that “[w]ritten policy and procedure provide for unimpeded access to health care and for a system for processing complaints regarding health care.” American Correctional Association Standards for Adult Correctional Institutions, 2d Ed. § 2-4300 at 79 (1981). A system which does not respond to written requests for medical attention cannot possibly be construed as affording access to nor being responsive to complaints about the health care system. Moreover, the kite system, even when working properly, can result in a significant delay between the time the inmate submits his kite and the time he is seen by a member of the medical staff. 13. Perhaps even more telling is the fact that access to the infirmary is impossible without an individual guard’s permission. Plaintiffs demonstrated that the kite system, on occasion, breaks down entirely, thus preventing inmate access to the infirmary. The infirmary itself is locked at all times. Presumably this is for security reasons. The medical services director, Hal Gaythwaite, refused to defend that policy when testifying. Not only is the infirmary locked at all times, it is frequently impossible to gain admission. Shortly prior to trial, court staff toured the prison, and when the court toured the ISCI medical facility, no inmates were being cared for in the infirmary. While it may be that these two instances were rare occurrences, it certainly corroborates plaintiffs’ allegations that admission to the infirmary is functionally deficient, cumbersome, or impossible. The infirmary itself seemed to be entirely adequate for the functions for which it is designed. Nonetheless, the court was left with the unmistakable impression that it is difficult, and cumbersome, for an inmate to gain access to this facility. 14. There are major problems existing at ISCI relating to medical care. There is no full-time medical doctor or doctors on staff to oversee and minister to the medical needs of in excess of eleven hundred inmates. (The medical facility is intended to provide interim medical care for not only the main yard, but those inmates at the farm dorm.) The medical staff, such as it is, is forced to provide medical care which it is neither trained nor licensed to provide. Moreover, this meager staff is only available sixteen hours per day, leaving the inmates at ISCI without any emergency medical care for a critical period of time. In addition, it is clear that certain inmates have been unable to procure an initial consultation with a member of the medical staff because of a breakdown in the kite system. Most importantly, there is no written procedure which provides guidance to the medical staff personnel or security staff in dealing with either emergency or day-to-day operations of the medical facility- 15. The medical delivery system at ISCI is very minimal and meager at best. There was evidence that after some time delay, serious medical problems were taken to Boise medical facilities and upon arrival, the inmate then received adequate medical attention. There was also evidence that follow-up medical attention, medical prescription, and dietary prescribed needs in numerous instances received deliberate indifference. 16. There was also uncontroverted evidence of inmates’ ailments being misdiagnosed by the meager medical staff at ISCI, and there were instances of which serious delay resulted by reason of such misdiagnosed cases that resulted in delayed medical care and/or a resulting poor prognosis of the injury or ailment. In some instances, only by reason of an inmate’s ability to contact his family or friends was outside pressure brought to bear on the institution. The institution was then forced to overcome its deliberate indifference and provide proper medical treatment. 17. There was little or no evidence submitted in this ease on the question of the proper or adequate keeping of medical records. Considering that the plaintiff’s case was presented by lay counsel, this is understandable. However, what few medical records are in evidence, although they are certainly not comprehensive or complete, they appear to leave a great deal to be desired. 18. After reviewing the evidence relating to the medical care delivery system at ISCI, this court finds that it is marked by an absence of any organizational structure, plan or written procedures. There is inadequate instruction, supervision and review of the personnel putatively providing medical care. The medical delivery system at ISCI is a system that persistently and predictably fails to provide adequately for the legitimate medical needs of the prison population. This health delivery system at ISCI, for a number of years up to the present, has been handled with considerable deliberate indifference. 19. An inmate incarcerated at ISCI must of necessity rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. There was considerable evidence in this case that by reason of the deliberate indifference and failure to deliver medical care, in many instances it produced unneeded, unnecessary and inexcusable torment, pain, suffering, and anxiety. In the less serious cases of denial of medical care, it appeared to and did result in pain and suffering which this court, or anyone else for that matter, would suggest that it serves any penological purpose. The infliction of unnecessary suffering and the meeting of basic medical care is inconsistent with contemporary standards of decency. The defendant has a duty to care for and provide a medical delivery system to the inmate who cannot by reason of the deprivation of his liberty care for himself. This deliberate indifference to serious medical needs of prisoners constitutes an unnecessary and wanton infliction of pain proscribed by the eighth amendment. The indifference manifested by the medical delivery system with untrained, unlicensed and inadequate personnel, or by prison guards in intentionally denying or negligently delaying access to medical care, or intentionally or negligently interfering with the treatment once it has been prescribed, is not compatible with the standards of decency required of a maturing society. Psychiatric Care: 20. From the evidence heard by this court, psychiatric care provided at ISCI is even far more deficient than the medical care delivery system. Psychiatric care at ISCI is almost nonexistent. While it is true that the Department of Corrections employs two full-time psychologists, the attitude of the Department with regard to psychiatric care can best be described as deliberately indifferent. 21. It appears from the evidence that little or no screening or testing occurs when an inmate enters the institution. No adequate attempt is made to identify mental problems or psychological maladies. The approach for diagnosing drug dependencies, alcohol problems, or other substance abuse related problems is haphazard. Apparently the chosen course of action is to prescribe psychotropic medication in lieu of psychiatric counseling. In the three-year period from 1981 to 1983, the prescription and attendant use of psychotropic medication has more than quintupled when considering the number of inmates actually taking psychotropic medication. A court requested memorandum was provided to the court subsequent to the completion of testimony. That memorandum documented an alarming increase in psychotropic medication. The figures in that memorandum are: Average Monthly Population 1981 1982 1983 753 849 923 Average Percent of Inmates on Psychotropic Medications 1981 1982 1983 2% 5% 9% In relative terms, the percentage of inmates receiving psychotropic medication has increased at an extraordinary rate of four and one-half times in just- three years. When the absolute increase is considered (taking into account the fact that the prison population increased by approximately 13 percent in 1982 and 9 percent in 1983), the number of inmates taking psychotropic medication has increased approximately five and one-half times in the course of three years. 22. The abdication of responsibility for psychiatric care and counseling is manifested in a number of ways. Numerous young men testified to brutal physical beatings and violent gang rapes which were reported to authorities, which accomplished some minimal goals for the victim of perhaps a change in living quarters, being given inmate protection, or placed in protective custody. A cold indifference was apparent on the part of the Department of Corrections in providing to the victim any psychiatric counseling. There was further evidence of inmates who had attempted suicide who obviously were manifesting severe mental and emotional problems. Little or no psychiatric care or assistance was or is provided to these seriously ill people. 23. The Idaho State Legislature, in enacting Idaho Code § 20-223, precludes the release on parole of even a model prisoner serving a sentence for the crimes enumerated in that section, or whose history and conduct indicate that such inmate is a sexually dangerous person except upon the examination and evaluation of one or more psychiatrists or psychologists. This statutory scheme requires indeterminate incarceration of sex offenders absent rehabilitation. Thus, having chosen to incarcerate inmates categorized as sexually dangerous persons because of their mental illness, the State of Idaho has determined that it no longer has an interest in punishing the inmate, but rather in attempting to rehabilitate such categorized inmate. This rehabilitative rationale is not only desirable, but it is constitutionally required. Ohlinger v. Watson, 652 F.2d 775 (9th Cir.1980). The Idaho Code § 20-223 inmates are perhaps not crying out for the best possible treatment, nor are they seeming to demand a guarantee to be cured of their mental incapacity or inadequacies. They are, however, entitled to a treatment program that will address their particular needs, with the reasonable objective of evaluation and rehabilitation, to have some history or reasonable basis worked up during their incarceration whereby a psychiatrist or psychologist could then give a reasonable evaluation or opinion to the parole commission indicating whether or not such sexually dangerous person is fit to return to society. Such constitutionally required treatment is not that which must be provided to the general prison population, but rather, that which must be provided to those committed under any of the categories set forth in Idaho Code § 20-223. Certainly due process requires that the nature and duration of commitment bears some reasonable relation to the purpose for which the individual is committed. In these cases, adequate and effective treatment is constitutionally required, for absent such treatment, a Section 20-223 categorized individual inmate could be held indefinitely. Personal Safety 24. Another area of grave concern for this court is that of personal safety. Because the level of violence and, hence, personal safety depends largely on the various custody levels, the court will analyze each of the custody levels separately. Medium Custody: 25. Medium custody is the least restrictive custody designation at the main site. Medium custody inmates are housed in A-Block, Housing Unit 10, and Housing Unit 11. Medium custody inmates are those inmates deemed less likely to escape, better able to deal with personal interaction in prison, and more capable of holding down a prison industries job than either those inmates in close custody or maximum security. Presently Housing Units 10 and 11 are double-bunked and double-housed. The cells are approximately 60 square feet each. While most of the units have two persons each, those inmates in medium enjoy a greater degree of flexibility than do those inmates in either close custody or administrative segregation. Inmates in medium custody are confined to their cells from 9:00 p.m. until 8:00 a.m. (although the doors are not locked and inmates continue to have access to restroom facilities), but at times other than this, inmates have freedom to roam the tier, which includes the hallway and day room. Moreover, many of those inmates in medium custody have a job of some sort which occupies a certain portion of their day. Those inmates in medium custody also have access to the yard areas which include the gymnasium and ball fields for approximately five and one-half hours each day from 1:00 p.m. until 3:30 p.m. and again from 6:00 p.m. until 9:00 p.m. Since most of the inmates in medium custody have jobs during the day, they are unable to utilize either the gymnasium or ball fields from 1:00 p.m. until 3:30 p.m. 26. While the degree of personal safety in medium custody Housing Units 10 and 11 is higher than that in close custody, testimony indicated that there had been a number of acts of violence, including stabbings, assaults on officers and inmates, a gang rape which occurred as a direct result of a guard’s inadvertent placement of an inmate on the wrong tier as a result of instructions given him by other inmates, and acts of sexual slavery which were finally ended after a correctional specialist at the institution asked an inmate to afford protection for two of the inmates being assaulted. Currently, there are approximately one hundred forty inmates in each of Housing Units 10 and 11. Inmates in these units must face the distinct possibility of assaults and/or sexual rape at the hands of other inmates. There is one guard per shift for each housing unit. Close Custody: 27. Close custody is the custody level between medium custody and maximum security. Those inmates in close custody represent a higher security risk of either escape or antisocial behavior than do those in medium custody and a lesser degree of those two possibilities than maximum security. Those inmates in close custody are relegated to that custody level because their sentence is such that they will not be released in the near future or because they have received disciplinary report(s) and are unable to conform their behavior to acceptable standards. Prior to trial, inmates in close custody were allowed to roam the tiers and day rooms for the better part of the day (from approximately 7:00 a.m. until 9:00 p.m.). This open tier policy, coupled with the makeup of close custody inmates, resulted in a high level of violence and, in the words of the director of the Department of Corrections, an extraordinarily high level of sexual assaults. Since the trial, corrections officials have attempted to alleviate the high level of violence in close custody. Their goal is to single-cell those inmates in close custody and to significantly curtail the open tier policy which resulted in such high levels of violence. 28. The present policy in close custody is likewise to house the inmates from 9:00 p.m. until 7:00 a.m. in their cells. At approximately 7:00 a.m., inmates in close custody are allowed out of their cells for breakfast. At approximately 9:00 a.m., the inmates have the option of either returning to their cells or spending an hour in the day room (the day room is approximately 24 feet by 33 feet). On the hour, prisoners have the option of moving back and forth between the day room and their cells, but once a ten-minute period on the hour is over, they must either be in their cells or in the day room. Mingling on the tier is allowed during the lunch and dinner breaks and for a two-hour period in the afternoon, but the open tier, which evidently engendered the dramatic levels of violence and sexual assault, is presently a thing of the past. Inmates in close custody are allowed to go to the gymnasium for a two-hour period twice weekly. Every other day they are allowed a two-hour period on the ball field, weather permitting. Protective Custody 29. Protective custody is the classification level designed to segregate those inmates subject to sexual assault, or extortion, or who are unable to pay debts to inmates in the prison population at large, and who have provided that information to prison officials. Prisoners in protective custody are subject to the same limitations on mobility as those inmates in close custody, but do not enjoy the single-celling which is currently being implemented in close custody. In addition, those inmates in protective custody are only allowed one and one-half hours per week in the gymnasium. Consequently, those inmates in protective custody suffer under some of the most oppressive conditions at the prison apparently for no other reason than they are young and vulnerable and cannot protect themselves. Nor do they enjoy complete security in protective custody. At least two inmates have been raped in protective custody, and the court learned from touring the institution that inmates who are not supposed to be in protective custody sometimes achieve access nonetheless. Maximum Security: 30. Maximum security is comprised of death row inmates and administrative segregation inmates. These two groups are housed in Housing Unit 7. Administrative segregation is composed of those individuals who are the most difficult to deal with from an institutional standpoint. Inmates in administrative segregation enjoy few of the privileges of inmates in either medium or close custody. Inmates in administrative segregation are only allowed outside their cells one hour per day. This hour can be spent in an exercise pen on the tiers of Unit 7, or if the weather permits, in an outside exercise enclosure. Inmates in administrative segregation are not allowed to be in the same cell or exercise area with another inmate. Notwithstanding this apparent isolation, acts of violence have occurred in administrative segregation. Classification 31. Classification is another area that underwent radical changes during the prosecution of this trial. Prior to trial, few, if any, of the guidelines for or determinations by the classifications committee were in writing. All incoming inmates were placed in close custody, and depending upon their behavior, were moved or were left on that custody level. The result of this policy was the brutal gang rape of many young men at ISCI. 32. Prior to the policy of placing all inmates in close custody was a system which was referred to as a “fish” tier. A “fish,” in prison parlance, is a young, vulnerable, unprotected inmate. The fish tier was comprised entirely of these young, vulnerable inmates. The fish tier evidently afforded a short period of personal safety for the younger inmates, but that safety was shortlived because once the tier was filled to capacity, the fish who had been on the tier the longest were forced out when a new fish arrived. It is difficult to determine which system is more barbarous— that which placed the fish into close custody immediately, or that which gave them a brief period of respite before forcing them into the general population. At any rate, during the trial, the practice of placing fish into close custody at the earliest opportunity was modified by Warden Arvon Arave at a staff meeting. The minutes from that meeting read: “Any inmates from intake being transferred to the yard should go to 9 house [close custody] unless they are really a ‘fish.’ ” Minutes from Warden’s Staff Meeting, March 12, 1984, Plaintiffs’ Exhibit No. 164. 33. Presently the system of classification as written is more objective. This system has a primary foundation of risk assessment. In adopting this new system, the prison officials have attempted to quantify their classification procedures in an effort to inject predictability and guidelines, not only for the classification committee, but for the prisoners themselves. The only problem with the new initial classification system designed by prison officials is that it may not adequately protect those individuals subject to predatory sexual assaults. Wholesale Reclassification of the Inmate Population in April 1981 34. In April 1981, prison administrators implemented an entirely new classification system. At that time, wholesale reclassification occurred. The classification system developed at that time was in specific response to a riot which occurred in 1980. Various studies were conducted which analyzed the causes of the riot and attempted to effect solutions. Neither notice nor opportunity to be heard was afforded to inmates subject to the wholesale reclassification. However, it should also be noted that the classification system has been radically altered since the time of the reclassification in 1981, and that as a result, the classification system presently employed at ISCI not only bears little resemblance to the previous classification, but also there are no remnants of the previous wholesale reclassification in existence. In the latter part of 1981, representatives of the inmates and prison administration entered into a settlement decree whereby the records relating to the wholesale reclassification were expunged from the inmates’ institutional records and all of the inmates classified as close custody were reclassified to medium custody. See Plaintiffs’ Exhibit No. 37. Due Process Requirements for Parole Hearings 35. The requirements for due process at parole hearings are governed by the unique structure and language of each state’s pertinent statute. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). The Idaho Parole Board is governed by Idaho Code § 20-223 (Supp.1983). Idaho Code § 20-223 reads in pertinent part: The commission shall have the power to establish rules, regulations, policies or procedures in compliance with chapter 52, title 67, Idaho Code, under which any prisoner, excepting any under sentence of death, may be allowed to go upon parole. Before considering the parole of any prisoner, the commission shall afford the prisoner the opportunity to be interviewed. A parole shall be ordered only for the best interests of society, not as a reward of clemency and it shall not be considered to be a reduction of sentence or a pardon. A prisoner shall be placed on parole only when arrangements have been made for his employment or maintenance and care, and when the commission believes the prisoner is able and willing to fulfill the obligations of a law-abiding citizen. The commission may also by its rules, regulations, policies or procedures fix the times and conditions under which any application denied may be reconsidered. 36. Ralph Pierce, Executive Secretary of the Idaho Commission for Pardons and Paroles, testified at trial that the Idaho Commission for Pardons and Paroles does not comply with the requirements of the Idaho Administrative Procedures Act (Act). Idaho Code §§ 67-5201-218 (1980). However, Idaho Code § 67-5201(1) (Supp.1983) specifically excludes the “state board of corrections” from the statutory definition of an “agency” for purposes of the Act. Plaintiffs maintain, notwithstanding this specific exclusion, that the initial sentence of the parole statute [Idaho Code § 20-223 (Supp.1983)] requires the Commission for Pardons and Paroles to follow the requirements of the Act. 37. Mr. Pierce also testified that the Commission for Pardons and Paroles does not provide good time credits to prisoners who are incarcerated pursuant to Idaho Code § 20-223 (Supp.1983). That statute further provides: [N]o person serving a life sentence or serving a term of thirty (30) or more years shall be eligible for release on parole until he has served at least ten (10) years and no person serving a lesser sentence for any of the following crimes; homicide in any degree, treason, rape by force or threat of bodily harm, incest, crime against nature, committing a lewd act upon a child, robbery of any kind, kidnapping, burglary when armed with a dangerous weapon, or with [sic] an attempt or assault with intent to commit any of said crimes, or as an habitual offender, shall be eligible for release on parole until said person has served a period of five (5) years or one-third (V3) of the sentence, whichever is the least. Plaintiffs contend that Section 20-101A (1979) is not being applied by the Commission for Pardons and Paroles. Section 20-101A reads in pertinent part: Good conduct reduction of sentences.— Each person convicted of an offense against the state and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subject to punishment, is entitled to a deduction from the term of his sentence beginning with the day on which the sentence starts to run as follows: (1) Five (5) days for each month, if the sentence is not less than six (6) months and not more than one (1) year. (2) Six (6) days for each month, if the sentence is more than one (1) year and less than three (3) years. (3) Seven (7) days for each month, if the sentence is not less than three (3) years and less than five (5) years. (4) Eight (8) days for each month if the sentence is not less than five (5) years and less than ten (10) years. (5) Ten (10) days for each month, if the sentence is ten (10) years or more. Given the language of Idaho Code § 20-223 and § 20-101A, there is an obvious conflict between these two statutes. Idaho Code § 20-223 requires an inmate to serve a certain minimum sentence before being eligible for parole. Idaho Code § 20-101A, on the other hand, mandates that an inmate receive a good conduct reduction in his sentence irrespective of whatever sentence he is serving under Idaho Code § 20-223. Perhaps this statutory conflict has not been brought into focus by the Idaho State Legislature. This is a matter for resolution by the State Legislature where it rightfully belongs. Such a policy matter is not within the province of this court. Due Process Requirements for Disciplinary Hearings 38. At ISCI inmates charged with major rules infractions are routinely segregated prior to the disposition of the disciplinary hearing. As a result of this pre-hearing detention, the inmate has little opportunity to collect evidence which may be favorable to his position. Moreover, when inmates are assigned an inmate lay-representative, those representatives have only a few minutes within which to prepare for the representation of the accused. 39. Disciplinary hearing officers testified at trial and were conversant in the basic requirements of due process as set down by the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). While plaintiffs attempted to demonstrate that persons accused of disciplinary infractions were systematically denied the opportunity to present witnesses, this court is unable from the evidence presented to concur in plaintiffs’ assessment. The evidence presented was simply insufficient to support such a far-reaching conclusion. Overcrowding and Staffing 40. There seems to be little question but that ISCI is overcrowded. This overcrowding clearly brings on many problems, including idleness, frustration, stress, discomfort, edginess, and fear. This, of course, does not require much imagination to realize that it is one of the principal causes of the effect of violence, fights, stabbings, and of course, extreme management problems. It is easy to see that by reason of this overcrowding the management problems are compounded by a lack of staffing, or at least understaffing. This understaffing, along with the overcrowding, enhances the personal safety factor of not only the inmates, but the guards and staff as well. 41. Although the problem is certainly there and will predictably get worse; it appeared from the record that a real effort is being made to alleviate the overcrowding at this prison site. This court feels that the problem is well-recognized. Where inmates and guards alike live in fear of one’s life or where the inmates suffer neglect such as poor medical care, this not only unnecessarily inflicts pain, but it is bad penology. If prison exacerbates an inmate’s bottled anger, society pays the price when, with freedom, that bottle is uncorked and the anger issues forth. However, a condition that makes little penological sense may not for that reason be unconstitutional. The eighth amendment does not require sound penology; rather, it proscribes the wanton infliction of pain. This court recognizes that while overcrowding itself is not a violation of the eighth amendment, that very overcrowding contributes to the effect of every deficiency in the prison operations. Overcrowding certainly leads to increased violence and it may dilute other constitutionally required services so that they fall below the minimum eighth amendment standards. For example, overcrowding may well reach a level at which the shelter of the inmates is unfit for human habitation. At some point, overcrowded population in such a confined setting itself could very well become an unnecessary or wanton infliction of pain. The task of this court is limited to enforcing constitutional standards and does not embrace setting policy choices or superintending prison administration. 42. To the extent that any Conclusions of Law are deemed to be Findings of Fact, they are incorporated into these Findings of Fact. CONCLUSIONS OF LAW 1. To the extent that any Findings of Fact are deemed to be Conclusions of Law, they are incorporated into these Conclusions of Law. 2. At the outset, it should be reiterated that this court is reluctant to intercede in the operation of a state penal facility. That function is best left to the legislative and executive branches of the State of Idaho. However, “[t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The appropriate standard for this court in analyzing conditions of confinement is set forth in Wright v. Rushen, 642 F.2d 1129 (9th Cir. 1981). In Wright, the Ninth Circuit held: In analyzing a challenge to prison conditions based on the Eighth Amendment, a court should examine each challenged condition of confinement, such as the adequacy of the quarters, food, medical care, etc., and determine whether that condition is compatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958); quoted in Estelle v. Gamble, 429 U.S. 97,102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) .... Any condition of confinement which passes this test is immune from federal intervention. If no challenged condition fails to meet the test, the entire facility and its administration are immune from Eighth Amendment- attack. Of course, each condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions____ But the court’s principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations. Id. at 1133. Food 3. The major complaint of the prisoners was that the quantity and quality of food being received by those inmates in close custody and maximum security was impermissibly disparate in comparison to food received by those inmates in medium custody. That problem has been rendered moot because prison administrators have dramatically altered the food services for inmates in close custody and maximum security. The court has been advised that the disparity in terms of quantity and quality has been alleviated. 4. There remains the issue of special diets. Plaintiffs demonstrated at trial that various inmates (Kenneth Yolker, Donald Kerst, and John McGonnigal) were supposed to be receiving special diets, but inexplicably were not. Of the three, one is now blind due to his inability to control his diabetes; one spent an extended period of time in the hospital due to a relapse of Crohn’s Disease; and the third suffered a diabetic seizure due to his drinking of a saccharin sweetened juice. While the court cannot say with absolute certainty that the lack of special diets caused these particular results, it was unrefuted that lack of special diets was a contributing factor to each of the incidents. As a matter of law, the evolving standards of decency that mark the progress of a maturing society require prison officials to afford inmates special diets if prescribed for them. Regardless of the cost involved, there is simply no penological justification for depriving inmates with serious medical problems of their duly prescribed diets. Clothing 5. As previously mentioned, inmates in protective custody are clothed in lightweight cotton uniforms previously owned by Hughes Airwest Company. While the dramatic coloring of the uniforms enables guards to immediately distinguish those inmates in protective custody, the clothing is patently insufficient to protect those inmates from the cold in the winter months. Protective custody inmates must be afforded either insulated underwear to augment their inadequate clothing, or prison officials must supply them with clothing which is equal to that of those prisoners in medium custody. Health Care Delivery System Medical Care: 6. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the United States Supreme Court held that: [Djeliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” ... proscribed by the Eighth Amendment. This is true 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. at 104-105, 97 S.Ct. at 291 (citations and footnotes omitted). The Court in Estelle went on to hold that, “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’ ” Id. at 105-106, 97 S.Ct. at 291-92. 7. Medical care at ISCI is clearly deficient in a number of aspects. First and foremost is the fact that there is no medical doctor primarily responsible for the delivery of medical services. Two physicians visiting ISCI for a total of eight hours per week is clearly inadequate not only from the standpoint that it is unlikely that inmates will be able to see a physician for their illnesses and injuries, but also from the organizational and administrative standpoint of the guidance that would be afforded by a full-time doctor. In the case of Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex.1980), Judge Justice found that the Texas legislature determined that American Correctional Association standards required nineteen full-time physicians for approximately seventeen thousand inmates. Id. at 1308. ISCI maintains the part-time equivalent of one-fifth full-time doctor for approximately eleven hundred inmates. 8. The lack of at least one full-time doctor results in a number of distinct problems. First, there is a lack of organization. Policies and procedures have not been reduced to writing. The American Correctional Association deems written policy and procedures for 24-hour emergency care and training to respond to health-related situations in a four-minute response time so important that it has designated these as “mandatory.” American Correctional Association Standards for Adult Correctional Institutions, 2d Ed., §§ 2-4279 and 2-4285 at 71-72 (1981). Second, and more importantly, medical personnel are undertaking performance of functions which should rightfully only be undertaken by a doctor. This relegates inmates to treatment which is inadequate. M