Full opinion text
MEMORANDUM OPINION DONALD J. PORTER, District Judge. Plaintiff William Cody represents a class of persons who are now or who will be incarcerated in the South Dakota State Penitentiary at Sioux Falls, South Dakota or in the Women’s Correctional Facility at Yankton, South Dakota. The plaintiff class challenges the constitutionality under the first, fifth, sixth, eighth and fourteenth amendments to the United States Constitution of numerous conditions and practices of confinement primarily at the South Dakota State Penitentiary (SDSP) and secondarily at the Women’s Correctional Facility. Plaintiffs proceed under 42 U.S.C. § 1983 and this Court exercises subject matter jurisdiction under 28 U.S.C. § 1343(a)(3). Defendants Hillard, Brost, Spaulding, Gehlhoff, Swenson and Smith are officers or members of the Board of Charities and Corrections of South Dakota, charged with the administration, supervision and maintenance of the SDSP and the Women’s Correctional Facility. Defendant Herman Solem is the Warden of the SDSP. Plaintiffs request both declaratory and injunctive relief. This action was tried to the court seven days in June, (June 7-10, and 13-15) and four days in December (December 13-16), 1983, in Sioux Falls, South Dakota. The case has been fully briefed by the parties and extensive proposed findings of fact have been submitted. At trial plaintiffs called four expert witnesses, and defendants three such witnesses. The following is a brief summary of the qualifications and areas of testimony of each of the plaintiffs’ experts: 1. Robert W. Powitz, Ph.D., Environmental Health, is the Director of Environmental Health and Safety at Wayne State University in Detroit, Michigan. He is a licensed sanitarian in the states of New Jersey and Michigan, and is an accredited sanitarian by the National Environmental Health Association and by the American Academy of Sanitarians. He was a contributing author of an official report by the American Public Health Association entitled “Standards for Health Services in Correctional Institutions.” He inspected the SDSP on May 16, 1983, viewing among other things the individual cells, the food service areas and the vocational shop areas. 2. Ronald Sable, M.D., is board certified in internal medicine. He is currently the attending physician in internal medicine at Cook County Hospital in Chicago, Illinois and staff physician at the Cook County Jail. He reviewed and inspected the medical, dental and psychiatric and psychological policies and practices at the SDSP one day in May, 1983. 3. Gordon Kampka is the Vice-President of Abraxas Associates, Inc., a management consultant firm in Fallston, Maryland. He has studied, lectured and written in the fields of criminal justice and public administration; he is a contributing editor to the Journal of Prison Health. He has consulted the National Institution of Corrections, the National Prison Overcrowding Project and several state and local correctional systems. He was formerly employed as Maryland’s Secretary for Public Safety and Correctional Services and for approximately six years before that as Warden of the Baltimore City Jail. He conducted a general inspection of the SDSP on June 8, 1983. 4. Lloyd T. Baccus, M.D., is an Assistant Professor of Psychiatry at Emory University School of Medicine in Atlanta, Georgia. He also has a private practice with emphasis in forensic psychiatry. He has served and continues to serve as a consultant to several state corrections systems in the evaluation and administration of mental health care services. He is currently involved in developing with other experts a mental health plan for the Texas Corrections System — this as a result of a class action suit brought on behalf of more than 33,000 inmates challenging the conditions of confinement in various institutions operated by the Texas Department of Corrections. (see Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982), cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983)). He inspected the mental health care services and policies at the SDSP for approximately one day in September, 1983. The defendants called the following experts: 1. Bonnie C. Norman, M.S. in Public Administration and specializing in hospital administration, is currently employed and has been for more than seven years as the Director of Medical Services for the Los Angeles County Sheriff’s Department. Her primary responsibility in this position is to direct health care services for approximately 14,000 inmates housed in the Los Angeles County Jail system. She has attended and also organized numerous seminars regarding the administration of health care services in correctional institutions. She has authored articles on health care services in corrections systems, and has participated in drafting, revising and/or auditing state and national standards for the administration of health care services in corrections systems. She inspected the health care services and policies at the SDSP for approximately two days in May, 1983, and one day in December, 1983. 2. Winston Satran is the Warden of the North Dakota State Penitentiary in Bismarck, North Dakota. He has been employed in various correctional positions for approximately sixteen years. He has attended several seminars respecting corrections administration and as a part of his training and experience he has visited numerous state and federal prison facilities. He toured the SDSP for approximately one and one-half days in May, 1983 and again for approximately one and one-half days in December 1983. 3. William R. Gore is a sanitarian from Sacramento, California. For approximately eight years he has served as Program Supervisor, Office of Local Environmental Health Programs, Department of Health Services, State of California. In that position he is in charge of conducting environmental health surveys for numerous state institutions, including nearly all of California’s correctional institutions. He has been involved over the years with formulating and applying several national and state standards associated with environmental health aspects of correctional institutions in Cali- • fornia. He toured the SDSP, focusing particularly on environmental health concerns raised by the plaintiffs, for approximately two days in December, 1983. In addition to expert testimony, the court had the benefit of sworn testimony from several corrections officers at the SDSP, including the Warden, other staff and also inmates. The Court also received in evidence 131 exhibits. One of these exhibits, entitled the “South Dakota Penitentiary Study”, (hereafter cited “SDSP” Study”), was particularly helpful in substantiating a number of the court’s findings of fact. This comprehensive survey, published in 1981, identifies deficiencies in the physical plant as well as in several practices, programs and services at the SDSP. The survey was conducted primarily by a team of professional consultants from Sioux Falls, South Dakota, Chicago, Illinois and Omaha, Nebraska, with the assistance of members of (1) the South Dakota Board of Charities and Corrections; (2) an advisory committee composed, of various state public officials such as the attorney general and several legislators; (3) the SDSP staff including the Warden; and (4) the Division of Law Enforcement Assistance. Appendix A to the SDSP Study contains fifty-eight unnumbered pages of evaluations performed by the consultants on specific aspects of confinement at the SDSP. Included in these evaluations are the findings and conclusions of the consultants based in part on the degree of compliance with the “most important” correctional standards promulgated by two nationally-recognized associations of experts in the field of corrections: the American Correctional Association (ACA) and the American Public Health Association (APHA). SDSP Study at 79-80. The Study further presents potential solutions, both current and long-term, to alleviate these various deficiencies, and also identifies the most cost-effective options available to the State. I. BACKGROUND INFORMATION Portions of the SDSP physical plant were constructed more than one hundred years ago. There have been a number of improvements and renovations over the years. There are currently a total of three cell blocks at the SDSP: West Hall, which contains 140 cells; East Hall, which contains 200 cells; and Federal Hall, which contains 100 cells. At the time of trial on December 15, 1983, there were 538 inmates living inside the three cell halls. Plaintiffs in their complaint allege that (1) the conditions of their confinement at the SDSP amount to cruel and unusual punishment in violation of the eighth and fourteenth amendments; (2) as to those inmates housed in protective custody, the conditions of their confinement not only amount to cruel and unusual punishment but also deny them equal protection of the laws as applied to other inmates at the SDSP — in violation of the fourteenth amendment; and (3) inmates at the SDSP and at the Women’s Correctional Facility are denied meaningful access to the courts, as guaranteed by the Constitution. Specifically, as to the conditions of their confinement at the SDSP, the plaintiff class asserts that (1) various environmental conditions exist in the cell halls, such as inadequate fire protection, inadequate ventilation and heating, lack of hot running water and inadequate water temperature control, insufficient lighting, and inadequate electrical wiring; (2) a number of inmates housed in protective custody and a number of newly admitted inmates housed in the intake area are double-celled; (3) the medical and dental care is inadequate; (4) the mental health care is inadequate; (5) a number of inmates in the general population are double-celled; (6) various environmental conditions exist in the kitchen and food storage area, such as an improper milk pasteurization process, improper food storage, a potential for back siphonage, an unsafe kitchen elevator, and several other unsanitary and improper conditions; and (7) various environmental conditions and practices exist in the shops, vocational programs, and other areas, such as inadequate ventilation, lighting and fire protection, and unsanitary practices and conditions. II. FINDINGS OF FACT A. ENVIRONMENTAL CONDITIONS— CELL HALLS 1. Fire Safety The SDSP provides inadequate on-site fire protection to inmates housed in West, East and Federal Halls. At present there exists in all three halls: an insufficient number of fire safety exits ' including exit stairs; insufficient night staff to adequately respond to an emergency fire; no remote automatic unlocking devices to simultaneously release inmates from their individual cells; no compartmentalization of these halls by the use of smoke partitions; an absence of a fire alarm system, smoke detectors, sprinklers, emergency lighting, and exit stairs encased with fire-resistant materials. In addition, East Hall is serviced by plastic pipe in the plumbing chases, which pipe would emit toxic vapors in the event of exposure to fire. Inadequate ventilation systems, especially existing in West Hall, compound the aforementioned hazardous conditions. In most prison fires, exposure to toxic vapors and smoke, rather than to the fire itself, poses the greatest threat to the lives of inmates. 2. Ventilation and Heating System a. Inadequate ventilation poses a severe health problem. Adequate ventilation constitutes an important environmental factor relating to degrees of comfort and disease prevention. b. Ventilation in the individual cells in West Hall is virtually non-existent. In East and Federal Halls, ventilation through each cell is generally inadequate. However, the air moves on an even plane from a small vent located on the bottom of the back wall of each cell toward the front of the cell. This lack of air movement poses a health hazard to inmates in the event of a fire. In addition, insufficient ventilation exists in the West Hall shower area. c. In each of the three halls there exists one heat source for the entire cell block. Heat is pumped into the cells through the baseboards located on the bottom tier of cells. The heat then rises through the upper tiers, creating generally cold temperatures on the bottom tiers and hot temperatures on the upper tiers. This system inadequately distributes warm air through the cell halls and results in generally uncomfortable living conditions. Inadequate ventilation in the individual cells compounds these conditions. 3. Overhead Lighting and Electrical Wiring a. In all three halls the cells are poorly lighted. An overhead fluorescent bulb in each cell furnishes insufficient light in order for inmates to conduct ordinary cell activities. Although inmates are issued small plug-in lamps to supplement the otherwise available light, there still exists inadequate illumination for the entire cell. The lack of adequate overhead lighting compounds the safety hazards due to faulty electrical wiring in the cells. b. There exists in many cells a significant amount of “jerry-rigged” electrical wiring; i.e., wiring fashioned by the inmates for their own use. This poses a safety and fire hazard to the inmates. c. In large part, the electrical wiring in the cells is substandard and inadequate. The electrical outlets in many cells, particularly in West Hall, are improperly grounded, thereby presenting a safety hazard to the inmates. 4. Hot Water and Water Temperature Control System a. Basic personal hygiene requires that hot water be available for washing and cleansing. b. No running hot water is available to inmates in cells in Federal Hall. Rather, hot water is currently delivered to these cells once each day by inmate runners who circulate through the Hall. c. The hot water temperature in the individual cell wash basins in East Hall measures 140 ° Fahrenheit, presenting potential hazards to inmates such as burning and scalding. The sinks in West and East Hall cells lack an automatic mixing valve to deliver water at reasonably comfortable temperatures. Running water in these sinks cannot be blended manually in the spigot prior to delivery. B. ENVIRONMENTAL CONDITIONS— KITCHEN AND FOOD STORAGE AREA 1. Milk Pasteurization Process a. The SDSP kitchen is equipped with a batch pasteurizer to purify milk. Pasteurization serves to eliminate harmful bacteria and other disease-carrying organisms from the milk. b. The consumption of improperly pasteurized milk can result in serious disease. Proper pasteurization requires that the temperature readings and the length of time associated with each pasteurization be recorded and regularly monitored by those in charge. c. On several random occasions milk samples taken from the SDSP batch pasteurizer were determined bacteriologically unsatisfactory by the South Dakota State Chemical Laboratory. Moreover, no temperature and time of duration readings associated with each pasteurization are recorded and monitored by those in charge. These conditions present a health hazard to the inmates. 2. Food Storage a. Proper storage of food serves to prevent spoilage and the spread of food borne diseases. Proper storage is particularly important where the same foods are being prepared for a large, contained population, such as for inmates at the SDSP. b. The lower level (basement) food storage area stocks primarily canned goods (single service articles) but also other food stuffs. Some of these items are stored under drain pipes which have the potential for breaking or cracking— thereby causing unsanitary spillage over and around these stored foods. It was evident to defendants’ environmental health export, Mr. Gore, upon his tour of the area, that such breaking or cracking had occurred in the past. At the time plaintiffs’ environmental health expert, Dr. Powitz, inspected this area on May 16, 1983, one of these drain lines had in fact broken, causing waste-water to leak out. Drip troughs are presently in place in an attempt to prevent spillage over these stored food items. However, in the event of a break in a pressure-flow-type pipeline, the potential for contamination of these food articles is great. Under these conditions the lower level food storage area provides inadequate protection against contamination and therefore presents a health hazard to the inmates. c. When Dr. Powitz toured the lower level storage area, he saw one dead mouse and fresh mouse droppings along one wall, indicating not only an active mice infestation but also infrequent cleaning in this area. Defendants’ environmental health expert, Mr. Gore, also noted mouse droppings in this area upon his tour in December, 1983. d. Food storage in the kitchen area is deficient. Basic refrigeration space for short-term food storage is inadequate. The freezer space is also inadequate to meet the needs of the total inmate population. The kitchen is not equipped with a walk-in freezer. The existing freezer space presents sanitation problems. The freezer is infrequently cleaned and is overloaded with food items. Dr. Powitz inspected the freezer and found some food articles stored on the floor of the freezer, thereby subjecting these foods to condensation, dripping, splashing and dirt. e. The methods of storing meat in the kitchen area are improper in some respects. During Mr. Gore’s inspection of the refrigerated meat storage box in the kitchen, he found raw kidneys and other uncooked foods placed above uncovered cheese slices. It is improper to store raw or uncooked foods above uncovered ready-to-serve, prepared foods; storage in this manner subjects these food to potential contamination and adulteration. 3. Kitchen Elevator a. The kitchen elevator is outdated and unsafe. The heavy metal doors of the elevator must be manually opened and closed by the passenger. These doors are not equipped with handles on the inside, but only on the outside. Therefore, in order to operate the elevator, a passenger must stand inside and at the same time reach outside the elevator to close the doors. b. There have been two reported incidents of injuries incurred by inmates who have slammed their hands in between these elevator doors in an attempt to operate the elevator. 4. General Kitchen Practices and Conditions a. Ventilation in the kitchen areas is makeshift and inadequate. Stand-up fans are used to distribute air in the closed area. The kitchen hoods lack an ancillary fire protection system. b. Many pots and pans and a majority of dining utensils are in a state of disrepair to the extent that they cannot be properly cleaned and sanitized. c. The kitchen oftentimes serves as a walk-through area for inmates, particularly those proceeding to the infirmary. The use of the kitchen in this manner is both unsanitary and a bad practice. Inmates and other plainclothes people may in this way expose the kitchen area to germs, dirt and viruses. This increases the potential for contacting and spreading communicable diseases among the inmates. It is also possible for inmates in the general population to sabotage the area by placing, for example, foreign matter in foods ultimately consumed by inmates and staff. d. Hair restraints (ie., hair nets) or hair covering of some sort for the kitchen staff, along with proper footwear are necessary to maintain a sanitary environment in the kitchen area. e. The ice machine is inadequately maintained and serviced. This causes a build-up of mold, minerals and stains on the interior walls of the machine, resulting in unsanitary conditions. f. At the time Dr. Powitz visited the kitchen area, frozen fish were being thawed in still water rather than, for example, under running water. This an improper method for defrosting frozen foods. g. The kitchen area is not equipped with a separate lounge for the inmate kitchen staff. As a result, the staff use the kitchen area as a lounge. This is an unsanitary practice in a food preparation area. h. The dishwashing area is characterized by excessive noise, some of which cannot be avoided. i. At the time of Dr. Powitz’ tour of the kitchen area, the temperature in the milk holding box registered 48 ° Fahrenheit. This temperature is excessive for storing a potentially hazardous food product such as milk. j. Overall, the kitchen area is maintained in a sanitary condition. C. ENVIRONMENTAL CONDITIONS— SHOPS AND VOCATIONAL PROGRAMS a. In the welding shop, exhaust ventilation is inadequate in the midshop welding booths. Toxic fumes produced from the welding benches are directed up into the welder’s breathing zone. There is no scavenger ventilation system to remove such fumes from the air at their source. This presents a health hazard to the inmates. b. In the furniture upholstering shop, particularly in two spray booths, the ventilation is inadequate to remove fumes toxic to the liver. c. Several drums containing a considerable amount of solvent are improperly stored in the sign shop. These drums are not kept in a storage cabinet or room designed specifically for the storage of solvent — thus creating a fire hazard to the inmates. d. In the barbershops there are no sanitizers used on the combs, brushes and clippers and no single service neck papers. These unsanitary conditions can cause skin infections. e. In the book bindery, tag and sign shops there are no safety or lock-out devices on any of the presses and paper cutters. This presents a safety hazard to the inmate workers. f. One inmate worker injured his hand when the printing machine in the print shop was unexpectedly engaged — even though the safety shield on the machine was in place and this was designed to prevent operation of the machine. g. Several table saws and other power tools in the carpentry shop lacked adequate devices to collect and remove sawdust from the air. D. ENVIRONMENTAL CONDITIONS— OTHER AREAS a. The lighting in the underground corridor leading to the recreation building is inadequate. b. Several unsanitary conditions and practices exist in the infirmary. Transfer forceps are improperly stored in a disinfectant solution which has the potential for contamination. There are no vacuum breakers attached to the x-ray developer and the washtub in order to prevent back siphonage flows into the regular water system. A deep fat fryer is sometimes used in the infirmary without proper ventilation or fire prevention equipment. E. CONDITIONS OF CONFINEMENT— DOUBLE-CELLING 1. General a. The general inmate population at the SDSP has increased dramatically since 1974. In October, 1983 the inmate population reached an all-time high of approximately 560 men housed inside the walls of the prison. Taking all three cell halls, the SDSP is equipped with a total of 440 cells. b. At the time of trial on December 15, 1983, there were 538 inmates living inside the three cell halls. Ninety-eight cells (196 inmates) were doubled up. Therefore, as of December 15, 1983, the SDSP was over physical capacity by ninety-eight inmates (approximately 22 per cent). c. Approximately seventy-five to eighty per cent of the inmate population at the SDSP are serving sentences for non-violent crimes. Approximately fifty-five per cent of the population are first offenders. d. West Hall contains 140 cells which each measure approximately sixty-three square feet in space. East Hall contains 200 cells, each measuring approximately fifty-six square feet in space. Federal Hall contains 100 cells, each measuring approximately fifty-five square feet in space. 2. Impact of Double-Celling a. Double-celling, depending on such factors as the extent and duration of this practice, the size of the double cell, and the amount of out-of-cell time afforded these inmates, places stress on both staff and inmates as well as on existing programs, services, equipment and the physical plant at the SDSP. Double-celling over time has a negative impact on all programs and services, including medical, food and laundry services, and work, recreation, and school programs. Double-celling over time also affects the level of tension among inmates and staff in a prison. b. Double-celling at the SDSP has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring. c. Double-celling at the SDSP has resulted in an overloading of services such as the work, recreation and school programs. d. The SDSP administration has attempted to reduce the.negative impact of double-celling by expanding the amount of out-of-cell time afforded inmates, by making a reasonable effort to double-cell only those inmates who volunteer to live with another inmate in the same cell, and by increasing the placement of inmates: (1) into trustee status in a detached unit of SDSP, located immediately outside the walls of the prison, known as the “Cottage”; (2) into trustee status in a unit located at the Human Services Center in Yankton; (3) into a detached dormitory, outside the walls of the prison, known as the “West Farm”; (4) into public service restitution programs in various communities in South Dakota. There are presently approximately 220 to 230 inmates housed outside the walls of the prison. e. The SDSP has also attempted to place inmates in work release or school release programs throughout the state. There are approximately thirty-five to forty inmates participating in these programs. f. There is a relatively low level of tension between inmates and staff at the SDSP. Since the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons in November, 1981, and approximately sixty incidents (recorded in the disciplinary logs for the period January 1, 1981 to June 30, 1983) of fighting or assaults between inmates and/or inmates and staff. g. The SDSP is grossly under-staffed. The level of prison staff has not increased in proportion to the level of the general inmate population. 3. Availability of Jobs a. There are approximately 200 inmates in the general population inside the walls of the SDSP who are without jobs. For various reasons, approximately 30 to 40 of these inmates do not wish to work outside of their cells. That leaves approximately 150 inmates who want to work, but for whom no jobs are available. b. An over-capacity inmate population at the SDSP has a negative impact on the availability of jobs for a significant number of inmates. 4. Public Health Impact of DoubleCelling a. Double-celling at the SDSP creátes a serious potential both for injuries and the spread of communicable diseases among the inmates. In order to reduce this potential public health problem it is a generally recognized standard that each inmate should be accorded a minimum of 60 square feet of living space. DoubleCelling at the SDSP presently precludes 196 inmates (representing approximately 36 per cent of the total inmate population) from attaining this standard. b. The majority of double-celling at the SDSP exists in the West Hall cells, which lack adequate ventilation (see Findings of Fact No. 11(A)(2) supra.) There are also a number of double cells in Federal Hall in which no running hot water is available to the inmates. c. There is an increased potential for inmates who are double-celled to contact upper respiratory diseases. d. In 1983, two inmates housed in the double-celled areas were treated for a communicable disease. One of these inmates was treated for pediculosis. Another inmate was diagnosed, after approximately two months of medical attention at the SDSP, by an outside dermatologist as having contracted scabies. By the time he was referred to the dermatologist, this inmate had a rash covering all areas of his body. In response to this diagnosis for scabies, only those individuals housed on this inmate’s same tier were treated prophylactically for scabies. 5. Double-Celling in the Intake Area a. The intake area at the SDSP where newly admitted inmates are housed, has a capacity of seventeen cells. On occasion as many as seven or eight of these cells are doubled up. Newly admitted inmates may spend from eight to fourteen days in this area. b. Double-celling in the intake area has occurred and will likely occur in the future. c. The SDSP administration makes reasonable efforts: to double-cell new admittees who are compatible with one another; to provide these inmates a sufficient amount of out-of-cell time in orientation and training activities; and to reduce the total amount of time these inmates are double-celled, d. From a public health standpoint, it is inappropriate to double-cell new admit-tees. The potential for inmates to contract contagious disease is heightened because these inmates have not been medically screened prior to entering this area. Double-celling new admittees also impedes legitimate correctional objectives in successfully orienting and screening new admittees. 6. Double-Celling in the Protective Custody Area a. Out of approximately 45 inmates housed in protective custody, 22 inmates are double-celled. b. The practice of double-celling inmates housed in protective custody at the SDSP is inappropriate and without correctional justification. These inmates need protection not only from other inmates in the general population but also from other protective custody inmates. The negative impact attributed to doublecelling in other areas of the institution is exacerbated in the protective custody area due to the inordinately limited out-of-cell time available to these inmates. F. CONDITIONS OF CONFINEMENT-PROTECTIVE CUSTODY INMATES a. There are approximately forty-five inmates at the SDSP in protective custody. These inmates are provided protection from the general inmate population for a variety of reasons. b. Inmates in protective custody do not generally have equal access with the general inmate population to jobs and programs at the SDSP. c. It is sound correctional policy to provide protective custody inmates equal access with the general inmate population to jobs and programs as long as protective custody inmates can be adequately protected and a safe environment maintained. d. Approximately ten protective custody inmates hold jobs. Most protective custody inmates perform laundry jobs which are reserved exclusively for these inmates. Also one or two protective custody inmates work in the protective custody area as runners or clean-up men. e. It is possible for the SDSP to safely provide protective custody inmates with equal access to jobs and programs. f. There are no protective custody inmates enrolled in the regular school program at the SDSP. The regular school program enrolls approximately 400 to 500 general population inmates per year. g. One or two protective custody inmates are participating in the education program by correspondence from within their cells. Inadequate staff prevent the SDSP from extending to protective custody inmates the benefits of regular classroom schooling. h. There are no protective custody inmates enrolled in vocational programs at the SDSP. i. Several special classes, involving instruction in art, first aid and self-motivation and offered to inmates in the general population, are not available to protective custody inmates. An alcohol and drug dependency awareness class is available to protective custody inmates. j. Protective custody inmates can use the law library only on Thursdays from 9:00-11:15 a.m. and from 1:00-3:30 p.m. k. Protective custody inmates are denied Class I contact visits with outsiders unless these inmates waive their right to protection during these visits. Contact visits by protective custody inmates are currently conducted at the same time as those for general population inmates. The contact visitation room has a capacity for approximately sixty people. No guards are stationed in the room during contact visitation. l. Protective custody inmates are allowed three out-of-cell recreation periods per week for a total of one and one-half to three hours per week. m. A protective custody inmate who does not have a job spends approximately twenty-three hours per day in his cell. n. Protective custody inmates receive less out-of-cell recreation time than do inmates housed in close custody in the Adjustment Center. Inmates housed in close custody in the Adjustment Center, by court order (see Judicial Notice of Judgment in Wabasha v. Solem, No. 79-4064, slip op. at 4 (D.S.D.Feb. 18, 1983)) receive at least five exercise periods per week for forty-five minutes each, for a total of at least three hours, forty-five minutes. o. Protective custody inmates go to the dining room to pick up their food (at a time when inmates in the general population are confined to their cells) but return to their own cells to eat their meals. The only eating utensil provided is a spoon. p. The policies and practices associated with protective custody status at the SDSP, particularly in terms of excessive in-cell time and a basic lack of access to programs and activities, are similar to those associated with punitive segregation status at most institutions. q. The above-identified policies and practices associated with protective custody status at the SDSP with respect to a basic lack of access to jobs, programs and activities, and excessive in-cell time, constitute serious deficiencies without correctional justification. These deficiencies could be remedied without major expense or institutional restructuring. G. CONDITIONS OF CONFINEMENT-MEDICAL AND DENTAL CARE 1. Use of Inmate Workers (i) Initial examinations and Screening Functions. a. Mr. Shelton, one of the inmate medical workers at the SDSP, has no formal training or education in the medical field. b. Mr. Huth, formerly an inmate dental assistant, had no formal training or education as a dental assistant. c. There are no nurses or qualified medical staff regularly scheduled at the SDSP between the hours of 8:30 p.m. and 7:30 a.m. on weekdays, or at any time on weekends. During this time, Shelton or another inmate medical worker would perform an initial examination on any inmate needing qualified medical attention. For example, if Shelton was called to attend to an apparent heart attack victim at a time when no qualified medical staff were present, he would take the patient’s history and vital signs, review the patient’s medical chart, and report the results of his examination by telephone to the doctor on call. This practice has since changed in that Shelton no longer has access to a patient’s medical record. d. Mr. Shelton occasionally performs visual examinations of an inmate’s genitals at the request of the nurses. e. During times when the dentist is not present at the SDSP, the inmate dental workers screen inmate requests for dental service. There are no written rulés or guidelines which regulate the manner in which inmates are selected for dental care and treatment. Inmate dental workers assist the nurses in scheduling other inmates for dental treatment. It is inappropriate for inmate dental workers under these circumstances to be involved in scheduling other inmates for dental services. f. In scheduling inmates for medical treatment, the nurses would give Shelton the medical charts of those inmates requesting medical treatment. Shelton in turn makes a list of these names, signs passes that will summon these inmates to the infirmary, and finally gives this list and the passes to a prison official who then will issue the passes and summon the inmates for treatment. It is inappropriate for inmate medical workers to be involved in scheduling other inmates for medical treatment. (ii) Inmates’ Access to Medical Records a. Mr. Shelton is involved in typing and filing inmate medical records. During times that the nurses are present, Shelton has access to inmate medical records. b. Inmate workers have on occasion made entries in the medical records. c. Until approximately one month before trial in June, 1983, Shelton had a key to the files for inmate medical records. d. It is inappropriate for inmate workers to have any sort of access to the medical records of other inmates. (iii) Treatment of Other Inmates a. Until approximately one month before trial in June, 1983, Shelton routinely performed medical x-rays on other inmates. Shelton received on-the-job training in how to perform x-rays from another inmate medical worker. b. During times when Mr. Shelton was absent, Mr. Huth performed medical x-rays on other inmates. c. Shelton routinely developed and performed a first reading on an x-ray. If Shelton, in reading an x-ray, discovered for example, in his estimation, a possible fracture of a bone, he would submit the x-ray to a nurse for a second reading. On the other hand, if Shelton, after performing a first reading of the x-ray, determined that there was no fracture, he would not submit the x-ray to a nurse for a second reading. d. Until approximately one month before trial in June, 1983, Shelton routinely performed medical x-rays on other inmates during times when no qualified medical personnel were present at the SDSP. During these times, if Shelton, in performing the first reading of an x-ray, discovered in his estimation, an apparent hairline fracture of a bone for example, he would wrap the area around the bone with an ace bandage and give the inmate an order slip for ice and either Tylenol or aspirin. Shelton would not contact qualified medical personnel under these circumstances. On the other hand, if Shelton in his own estimation determined a bone fracture to be serious, he would notify a prison official who would then decide whether to call upon a qualified medical person. e. Although during the time when Shelton was performing medical x-rays he received monthly reports with respect to how mueh.his body had been exposed to x-ray radiation, he never understood these reports and no qualified medical personnel assisted him in interpreting these reports. Shelton was never instructed by qualified medical personnel on x-ray safety precautions and procedures. f. In October, 1983, an inmate was given a medical x-ray by a prison guard who had no formal training or education in the use of x-ray equipment. Shelton advised the guard as the guard performed the x-ray. g. It is inappropriate for inmate medical workers having no formal training or education in the medical field to perform medical x-rays on other inmates. It is also inappropriate for such inmate medical workers to perform a first reading of medical x-rays. On-the-job training of a medical inmate worker by another medical inmate worker in the use of x-ray equipment is inappropriate. h. Mr. Huth, the inmate dental worker, routinely performed dental x-rays on other inmates. Normally there were no qualified medical personnel present when Huth performed x-rays. In order to take dental x-rays, Huth routinely placed his hand within the inmate patient’s mouth to position the x-ray film. i. It is inappropriate for inmate dental workers having no formal training or education in the use of dental x-ray equipment and the proper procedures and safety precautions for its use to perform dental x-rays on other inmates. j. During a time when no qualified medical personnel were present at the SDSP, Mr. Almont, an inmate dental worker, attempted to perform an EKG exam with the assistance of Shelton upon another inmate who was experiencing heart problems. Neither Shelton nor Almont possessed proper training in the use of an EKG machine or in reading and interpreting the output from such a machine. k. During a time when qualified medical personnel were not present, Shelton treated an inmate who had injured his chin. After he examined the injury, Shelton determined that it would require stitches. Shelton then notified a prison official, who sent the inmate patient out of the institution for qualified medical treatment. l. During this same time (when qualified medical personnel were not present) Shelton treated an inmate who had lost consciousness and was transferred to the SDSP infirmary from the prison farm, which is approximately twelve miles from the main prison. Shelton treated the inmate for approximately five minutes before a qualified prison nurse arrived in answer to the emergency. m. During this same time when there were no qualified medical personnel present at the SDSP, Shelton treated an inmate who experienced breathing problems. The treatment consisted of setting the inmate up to a breathing machine. n. On occasions when Shelton was not present, Huth participated in treating medical emergencies among the inmate population. Such treatment typically consisted of treating and bandaging the wounded area but also consisted of, for example, attempting to administer oxygen to a potential heart attack victim. o. Huth routinely assisted the dentist at the SDSP in performing amalgrams [fillings], bridge and dental work on inmates. p. During times when the dentist was not present and an inmate complained of a sore tooth, Huth routinely treated the inmate by placing a temporary filling in the sore tooth. On occasion an inmate treated with such a temporary filling would not be scheduled to see the dentist until he again complained of a sore tooth. q. On occasions when the dentist was not present, Mr. Almont would operate both a low and high speed drill on another inmate’s mouth — in an attempt to grind down a crown or a chipped tooth or a burr from a temporary filling, or to adjust the bite on a filling, r. It is inappropriate for inmate workers, whether dental or medical, to be in any way involved in the direct treatment of another inmate. 2. Emergency Medical Care a. There are no protocols, i.e., written guidelines setting forth the systems and procedures to be employed in responding to a particular emergency, governing emergency medical care at the SDSP. b. Correctional officers at the SDSP are not required to achieve or to maintain certification in cardiopulmonary resuscitation (CPR). Although the SDSP administration makes reasonable efforts to train custodial staff in CPR, the institution does not maintain adequate documentation of such training. As a result, there is no established system at the SDSP to ensure that a custodial staff person properly trained in CPR will be called upon in the event of an emergency- c. During times when no qualified medical personnel are present, inmates requiring medical treatment are examined initially by an inmate worker. d. In the event of a medical emergency during a time when qualified medical emergency personnel are not present, the decision whether to call for an ambulance rests ultimately with a supervisor. It takes approximately two to three minutes for a correctional officer responding to an emergency to obtain the necessary keys to open up the cell and attend to the stricken inmate. It takes approximately two to three additional minutes for the supervisor to reach the cell in order to make a decision whether to call for an ambulance. Depending on the circumstances, a correctional officer junior in command to the supervisor may make the decision whether to call for an ambulance. If an ambulance is summoned it normally takes from ten to twenty-five minutes for the ambulance to arrive at the scene of the emergency. e. The SDSP does not have a crash cart, nor does it have all the medical equipment normally found on a crash cart. f. The SDSP lacks adequate resuscitation equipment. Not all corrections officers are trained in the proper use of existing resuscitation equipment. g. Aside from the above-detailed deficiencies in emergency care, the SDSP staff has taken reasonable efforts to properly respond to and treat medical emergencies. 3. Prescription Drugs a. There is no formulary, i.e., a list of those prescription drugs which qualified medical personnel choose from in prescribing medication for a particular condition, of prescription drugs at the SDSP. b. The SDSP infirmary has a written policy prohibiting physicians from prescribing certain medications for the inmates. The list of prohibited medications includes: sleeping medications of any type; pain relievers such as darvon, talwin, demerol, codeine and methadone; minor tranquilizers such as serax, librium, valium; mood stimulators such as dexedrine and ritalin; appetite suppressants of any type; and various cough medicines such as robitussin, terpin hydrate, and various codeine preparations. Under certain circumstances a physician at the SDSP may find it necessary to indicate one of the above enumerated drugs in treating an inmate; it is inappropriate to strictly prohibit the use of these medications by a treating physician. c. The SDSP infirmary also has a written policy discouraging physicians at the SDSP from prescribing certain anti-asthmatic preparations (such as aminophyllin, amesec and tedral) and certain anti-convulsant medications (such as dilantin, mysoline and phenobarbital) in treating inmates. It is inappropriate to strictly limit and discourage a treating physician at the SDSP from prescribing these medications under all circumstances. d. At present corrections officers at the SDSP deliver pre-packaged unit-dose prescription medications, which are brought into the institution each day and inspected by the registered nurse, to those inmates who have been indicated for treatment. This procedure for dispensing prescription medications is adequate. However, there is currently no procedure by which the receiving inmate acknowledges, by his signature or his initials on a form to be filed in his permanent medical file, receiving or refusing to receive the prescription medication. It is inappropriate for the SDSP staff to only record those instances when the inmate refuses his medication, rather than recording both instances where the inmate receives his medication and when the inmate refused to receive his medication. e. One inmate, Mr. Lone Eagle, was admitted to the SDSP in December, 1982, while on prescribed medications of, among other things, dilantin. Mr. Lone Eagle’s medical records revealed a history of epileptic seizures, for which he was placed on dilantin in 1979. For approximately four or five days after he was admitted to the SDSP, Mr. Lone Eagle did not receive his prescribed medications. An inmate who enters the SDSP while on a prescription for dilantin and whose medical records indicate a history of seizures should be continued on dilantin until receiving a full medical evaluation. Since being admitted, Mr. Lone Eagle has experienced three seizures — each one of them occurring at a time when he was denied his prescription medication. f. In September, 1983 there were approximately 27 inmates on major tranquilizers at the SDSP. It is important for inmates on major tranquilizers to be regularly monitored by the treating psychiatrist, on a schedule ranging from several times a week to once every three months, depending on the stabilization of the individual. Proper monitoring procedures allow the psychiatrist to regulate the dosage of the particular tranquilizer given the inmate, and to detect possible harmful side effects from the particular tranquilizers, such as creating deficiencies in the immunity system. The SDSP has no written policies governing such a monitoring procedure, nor is there any indication that the SDSP maintains such a monitoring procedure. 4. Provisions for Special Diets a. The SDSP provides one general food line and one special food line. The special diet line consists of low-salt or no-salt content foods, with a salt substitute available. b. Although there are no records kept regarding the names and the number who are diabetic, it is estimated that there are approximately six diabetics at the SDSP. There is no special diet line provided for these diabetic inmates, nor are the various foods included in the general or special food lines labeled as to their nutritional or calorie content. These deficiencies are offset by the reasonable attempts made by the SDSP nurses to educate these diabetic inmates on a one-to-one basis regarding their special dietetic needs. These inmates are also given literature by the nurses, explaining proper diabetic diet control. So long as diabetic inmates receive proper dietary counseling by trained staff, these inmates can make appropriate food selections from either the generad or special diet line in order to properly control their diet. c. The SDSP adequately provides for the special dietary needs of the inmates. 5. Protocols a. Protocols, i.e., written statements of policy and procedure, enable the health care staff to appropriately respond to the health care needs of the prison inmates. Protocols assist the health care staff and the prison administration in setting in advance various policies and procedures to be followed in meeting the health care and needs of the inmates. Protocols also protect the inmates. b. At present there are no protocols at the SDSP relating to standing orders and telephone orders received by the nursing staff from the attending physicians; emergency care; infection control and reporting; treatment of hypertensive inmates; treatment and monitoring of inmates on psychotropic drugs or major tranquilizers; and the treatment and monitoring of inmates on INH medication. c. In March, 1983, the SDSP adopted written policies relating to: general health care services; dental care; the use of inmate workers; the provision of medical, dental or orthopedic prostheses; infirmary care; notification of serious illness or death; employee use of institutional medical staff and facilities; the maintenance of medical records; a prohibition on medical experimentation upon inmates; provisions for informed consent; psychiatric transfers; utilization of pharmaceutical products; and optometric services. In general these protocols are inadequate and incomplete; they fail to describe in specifics the policies and procedures associated with each area of health care. 6. Medical Records a. At present the medical records of inmates at the SDSP are inadequately organized. The records are not placed in an inmate’s medical file in any particular order. Also, the information contained in an inmate’s medical file inadequately identifies such areas as the subjective, objective, assessment, and planning data associated with the inmate’s care and treatment while at the prison. b. Aside from these deficiencies the medical records and files of the inmate at the SDSP are kept in a satisfactory manner. 7. - Quality Control There is at present no defined quality control program at the SDSP, particularly governing laboratory services. 8. Staff a. There are an equivalent of three full-time registered nurses at the SDSP. This is an inadequate number of full-time registered nurses. b. There are two physician sessions and one physician’s assistant session per week for an average of two to three hours each at the SDSP. The attending physician or physician’s assistant makes reasonable efforts to see every inmate scheduled for examination and/or treatment. 9. Financial Constraints on Medical and Dental Services a. Inmate James Weinandt has a severely deformed left foot, which was operated on prior to his admission to the SDSP. After his admission to the SDSP and during a general physical examination by a SDSP physician, Weinandt was told, in reference to his physical deformity, that there was nothing that could be done for his foot. Mr. Weinandt was issued regular, hard-soled inmate shoes upon his admission to the SDSP. Weinandt suffered bruises and blisters on his left foot as a result of wearing these shoes; he requested of SDSP officials that he be issued tennis shoes in place of the other shoes. Weinandt was then informed by prison officials that he could have tennis shoes only if he could pay for them; Weinandt could not afford to pay for the tennis shoes. Weinandt was further informed that he could not leave his cell without wearing shoes. Approximately one week before Weinandt’s trial testimony in June, 1983, he was informed that he would be issued a pair of tennis shoes. b. Inmate Thomas S. Seidschlaw was referred to an outside dermatologist by a SDSP physician, for treatment of a severe acne condition. The dermatologist examined Seidschlaw and prescribed among other things the medication Acutane which is a drug used to treat severe acne problems. Seidschlaw’s medical records indicate that the day following his visit to the dermatologist, the SDSP physician reviewed the dermatologist’s recommendations for treatment and issued the following order to the on-duty nurse: “Do not start Acutane at present [check with the] administration regarding cost (Acutane therapy as ordered would cost $100 per month) ____” The associate warden was notified that same day and, according to Seidschlaw’s medical records, approximately four days later the warden and the associate warden ordered the permanent discontinuance of Acutane therapy on Seidschlaw. The outside dermatologist described his recommended treatment as “medically necessary” in the treatment of Seidschlaw’s severe acne condition. c. The expense associated with prescribing and monitoring the Acutane treatment for Seidschlaw, as recommended by the dermatologist, was a factor in discontinuing such treatment. If Seidschlaw had offered to pay for the Acutane treatment himself, it would have been prescribed for him. d. It is inappropriate for a warden, an associate warden or any member of the prison administration staff to overrule a specialist’s medical judgment on the sole ground that the recommended treatment is too expensive. e. It is improper to deny an inmate medical treatment based solely on the cost of the treatment. f. Inmate Earl Anderson has a skin condition consisting of lesions, blisters, eruptions and open sores. This condition covers most of his body and has been a recurring problem for many years. Anderson’s condition recurred in late October, 1983, and he was given medication which caused facial swelling, extreme irritation to the problem areas of his skin, and an increase in the redness of the rash. Anderson subsequently requested an appointment with an outside dermatologist, but he was told that it could be three and one-half months before he could see a dermatologist. Therefore on his own initiative Anderson called a dermatologist direct and arranged for an appointment. Anderson was then told by correctional staff at the SDSP that he would lose his trustee status if he kept the appointment with the dermatologist. Anderson cancelled his appointment. Subsequently, Anderson consulted with counsel for the plaintiffs and shortly thereafter an appointment with an outside dermatologist was arranged. As a result of treatment by this dermatologist, Anderson’s skin condition has generally been suppressed. g. There are no written policies with respect to whether various medical procedures are elective or necessary in any given instance. A mandatory or necessary medical procedure leaves no discretion in the treating physician to deny or withhold treatment by such a procedure; elective procedures on the other hand leave to the treating physician relatively full discretion in determining whether, under all the circumstances of the particular case, to provide or to withhold treatment by way of such a procedure. On occasions the medical and dental staff at the SDSP have consulted the warden regarding whether in individual cases an elective or somewhat doubtful elective treatment or procedure should be performed in light of the expense associated with such a treatment or procedure. The SDSP has failed to establish clear written guidelines relating to cost and elective procedures. h. In the absence of protocols distinguishing elective from necessary medical services, the decision whether a particular procedure or treatment is elective or medically necessary is one properly left to the treating physician. H. CONDITIONS OF CONFINEMENT-PSYCHIATRIC AND PSYCHOLOGICAL CARE 1. Staff a. At present there is one psychiatrist at the SDSP who performs his work on a volunteer basis. The psychiatrist visits the institution one day each week for approximately five hours. One visit per month is typically devoted primarily to performing inmate evaluations for the parole board. b. The psychiatrist’s direct involvement with inmates is largely devoted to identifying and assessing a particular inmate’s needs and treatability, prescribing medication and occasionally arranging the transfer of certain inmates to the Human Services Center in Yankton. The actual psychiatric treatment provided by the psychiatrist to the inmate patients is normally limited to prescribing medications, brief counseling, conducting intermittent follow-up examinations until the patient is stabilized, and referring patients to other personnel within the SDSP or to other persons or institutions outside the SDSP. At the time of trial in June, 1983, the psychiatrist was engaged in individual psychiátric therapy, on a continuing basis, with two inmates. The psychiatrist visited one of these inmates approximately five times in five months; the other inmate had been visited approximately three times in six weeks. It is not possible under present circumstances for the psychiatrist to conduct long-term psychotherapy on individual inmates experiencing non-emergency mental problems, i.e., inmates having a difficult time adjusting to the prison environment. c. The SDSP employs one full-time psychologist. d. The psychologist’s first priority and the largest single part of his work consists of performing a series of psychological tests and evaluations on inmates upon their initial entry into the SDSP. The psychologist does not see any inmate on a regular counseling basis. The SDSP psychologist does some counseling for inmates with mental problems of a less severe nature; he typically spends approximately one-half hour to forty-five minutes a day (the equivalent of approximately one or two interviews per day or eight to ten interviews per week) counseling inmates. e. The SDSP employs seven full-time counselors and the equivalent of two and one-half full-time drug and alcohol counselors. f. It is important for a prison institution to have a sufficient counseling staff. Adequate counseling staff reduces the number of instances in which individuals in the general population deteriorate both physically and mentally, thus reducing the number of inmates who must be referred to a mental hospital for psychiatric treatment. Adequate counseling services aid in the treatment and prevention of mental health problems among the inmate population by enabling qualified personnel to intervene at an early stage in the diagnosis, care and treatment of these problems. Adequate counseling services also assist, for example, in the continued monitoring of inmates who have returned to the general population after having been removed from the general population for psychiatric treatment. At present, the counseling staff at the SDSP does not have time to adequately perform psychotherapy or psychological treatment on inmates. 2. Demand for Mental Health Services a. There are approximately 20 to 25 psychotic inmates at the SDSP. The SDSP psychologist encounters inmates during the intake evaluation and assessment process whose psychological problems are so severe that these inmates will potentially experience or have experienced and will continue to experience a deterioration in their physical health. There are occasions at the SDSP when inmates experiencing a deterioration in their physical health due in part to mental health problems have not been referred to or treated by qualified personnel, so that the physical health of these inmates continues to deteriorate. b. There are inmates at the SDSP who h