Full opinion text
MEMORANDUM OPINION JUSTICE, Chief Judge. Introduction The present phase of the Ruiz litigation concerns civil contempt proceedings arising from several of the prison reforms previously ordered in this action. The particular reforms at issue were based upon certain agreements and stipulations of the parties. After hearings pursuant to Fed.R.Civ.P. 23, the agreements and stipulations were each approved by the court, and orders were issued to effectuate them. By a motion filed January 8, 1986, the plaintiff class of prisoners demanded that the defendants, including defendant O.L. McCotter, Director of the Texas Department of Corrections (TDC), and defendant Alfred D. Hughes, Chairman of the Texas Board of Corrections, be ordered to show cause why they should not be held in contempt for acts or omissions in violation of such court orders. Generally, plaintiffs’ claims included TDC’s alleged failure to: 1) provide single-occupancy cells (“single-celling”) to prisoners requiring such housing; 2) assign housing to prisoners according to their respective custody classifications, so as to preclude the presence of dissimilar classifications in the same housing areas; 3) post correctional officers inside the cell-blocks and dormitories; 4) hire health care professionals; 5) furnish to physically handicapped prisoners adequate medical care, living facilities, working conditions, and equal access to prison programs; 6) afford to prisoners in administrative segregation appropriate housing facilities, lighting, shelves, daily showers, out-of-cell recreation, and case-by-case determinations of personal property restrictions; and 7) construct specified recreational facilities. The plaintiffs seek monetary and other relief for TDC’s purported violations of the stipulated reforms. A show cause order was entered on March 17, 1986. TDC filed what was denominated as Defendants’ Return to the Show Cause Order on March 28,1986, and a Supplement to the Return on June 13, 1986. These responses consist of: 1) admissions of noncompliance accompanied by explanations; 2) denials of contempt; and 3) numerous contentions regarding the alleged inappropriateness of the requested relief. Additionally, TDC solicited modification of court orders regarding four areas: cell housing for certain female inmates; staff deployment; scheduling of recreation, property restrictions, and shelf requirements regarding prisoners in administrative segregation; and the construction of recreational facilities conforming to the stipulations of the parties. The show cause hearing, conducted between June 23 and July 1, 1986, produced nearly 200 exhibits and the testimony of thirty-one witnesses, including several experts and prisoners. In late July, post-hearing and reply briefs were filed, which detailed supporting evidence relevant to the alleged violations and proposed relief. Because of the grossly unconstitutional conditions extant in TDC at the commencement of this action, the reforms ultimately ordered to correct them were necessarily extensive. See Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982). But, questions concerning the constitutionality of the Texas prison system are not under consideration at the present juncture; rather, the matters in dispute relate to allegations of contumacy by TDC with respect to specific provisions of prior orders (all issued in conformance with the agreements and stipulations of the parties), and the need, if any, for their modification. The judicial sanction of civil contempt is designed to enforce the rights and administer the remedies which a court has found a party entitled to in an order or decree. A sanction may issue only if the relevant court decree is clear and unambiguous, International Longshoremen’s Association, Local 1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967); North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 521 (5th Cir.1983), the proof is “clear and convincing” (a standard higher than “preponderance” though not commensurate with “beyond a reasonable doubt”), Neely v. City of Grenada, 799 F.2d 203, 207 (5th Cir.1986); United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976), and it is established that the violation was occasioned by reason of failures amounting to a want of diligence, ineffective control, and lack of steadfast purpose to effectuate the prescribed goals. Aspira of New York, Inc. v. Board of Education of City of New York, 423 F.Supp. 647 (S.D.N.Y.1976). Contempt represents more than a delay in performance or lack of perfection; it is, instead, the failure to accomplish what was ordered in meaningful respects. Moreover, good faith alone is no defense to this charge, since there is no intent requirement in respect of a determination of civil contempt. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); Newman v. Graddick, 740 F.2d 1513, 1528 (11th Cir.1984). Defendants may defeat a finding of contempt, however, by demonstrating that they employed, in good faith, the utmost diligence in discharging their responsibilities. “Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.” United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521, 528 (1983). In such a case, modification of the particular order would be appropriate. The agreements and stipulations under examination amount to consent decrees. Modification of a consent decree that will alleviate or eliminate any condition designed to be affected thereby must be reviewed under the test established in United States v. Swift & Company, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). “Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions” should lead to such a modification. United States v. Swift & Company, 286 U.S. at 119, 52 S.Ct. at 464. Swift teaches that a [consent] decree may be changed upon [such a] showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree ... have not been fully achieved. United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968) (emphasis in original). See Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 1537, 89 L.Ed.2d 747 (1986). But the Supreme Court rejected the use of the Swift test when modification of the decree would place additional restrictions on a defendant. Thus, when it has been determined that the relief originally ordered has not produced the intended results, “the District Court should modify the decree so as to achieve the required result with all appropriate expedition.” United States v. United Shoe Machinery Corp., 391 U.S. at 252, 88 S.Ct. at 1501. See United States v. Lawrence County School District, 799 F.2d 1031, 1046 (5th Cir.1986); Neely v. City of Grenada, 799 F.2d at 211; Exxon Corporation v. Texas Motor Exchange of Houston, 628 F.2d 500, 503 (5th Cir.1980). The findings of fact which follow delineate the seven areas in controversy and the specific issues relating to each. A review of plaintiffs’ motion for contempt and further relief appropriately begins with an examination of single-occupancy cells for designated prisoners. I. SINGLE-CELL HOUSING The Issues In maintaining that TDC should be held in contempt of court with regard to the alleged failure to afford sufficient single-occupancy cells, plaintiffs allege that: 1) TDC failed to provide single-cell housing for prisoners identified as requiring it on the bases of vulnerability, assaultiveness, mental retardation, psychiatric condition, or medical problems; 2) the single-celling of vulnerable and assaultive prisoners in administrative segregation areas violates court orders; and 3) insufficient cellblock housing restricts two-thirds of the female prisoners identified as requiring single-occupancy cells to dormitory housing. The plaintiff class demands that TDC be ordered to house all prisoners in single-occupancy cells who have been identified as requiring it under the court’s orders, forthwith, with a fine of $1,000.00 per prisoner, for each day that TDC is remiss in this relation. In reply, TDC asserts that, within the past two years, it has complied substantially with the single-celling requirements. Moreover, TDC challenges plaintiffs’ contention that the relevant orders or decrees prohibit the single-celling of vulnerable and assaultive inmates in administrative segregation. TDC argues, therefore, that no relief is necessary. TDC admits that it has not provided single-occupancy cellblock housing for significant numbers of women prisoners who arguably require it. In explanation, TDC asserts that the Classification Plan permits women to be housed in dormitories, and “[t]hat before concluding that additional costly cells are needed for women, the court should allow TDC to propose an alternative plan.” Defendants’ Return, p. 11. Plaintiffs maintain, however, that the alternative plan submitted by defendants would permit the continued placement of women prisoners in dormitories who, under the terms of the present order, should be assigned to medium and close custody facilities. Findings of Fact 1. Paragraph II.F of the “Stipulation and Order Modifying the Court’s Order of January 11, 1984,” filed on May 2, 1984, provides that: Defendants shall forthwith take the following steps: # * # * * # F. None of the following prisoners shall be confined to a cell with another prisoner or to a dormitory: 1. Prisoners confined to administrative segregation at the Ellis and Coffield Units. 2. Prisoners who are medical in-patients of a TDC infirmary, intermediary care facility, or hospital and whose treating physician recommends that they not be doubled celled or housed in a dormitory; prisoners who are recognized as intellectually impaired pursuant to the intellectually impaired offender plan, and prisoners who are physically handicapped, as will be defined in the TDC comprehensive health care plan, Standard 150, and whose ITP (Individualized Treatment Plan) recommends they not be double celled or housed in a dormitory. 3. Prisoners who are either psychiatric in-patients, out-patients, or under psychiatric observation pursuant to the psychiatric services plan, unless the treating psychiatrist or the prisoner’s ITP recommends double celling or a dormitory assignment for therapeutic purposes. 4. Prisoners whom the unit classification committee deems to be assaultive or vulnerable to the extent that they cannot safely be housed with another prisoner, or in a dormitory. 2. In the fall of 1984, TDC took the position that this agreement required the single-celling of prisoners only on the Ellis and Coffield Units, and did not require the single-celling of prisoners system-wide. Tr. 262. 3. Paragraph II.I.1 of the “Stipulation Modifying Crowding Provisions of Amended Decree” (Crowding Stipulation), approved by a court order dated July 26, 1985, states: II. CAPACITY I. Prisoners Required, to be Assigned to Single-Occupancy Cells. 1. Defendants shall assign the following classes of prisoners to single occupancy cells: (a) all prisoners under sentence of death; (b) all prisoners confined in administrative segregation; (c) all prisoners who are determined through the classification process to be assaultive or vulnerable to the extent they cannot safely be assigned to double occupancy cells or dormitory housing; (d) all prisoners assessed to be mentally retarded pursuant to the Mentally Retarded Offender Plan, December 1, 1984, if their individual habilitation plans recommend that they be housed in a cell alone; (e) all prisoners with a diagnosed psychiatric illness, as defined by the Psychiatric Services Plan, February 14, 1984, and the Comprehensive Health Care Plan, Chapter 150, December 15, 1984, who are assigned to a psychiatric acute care facility or a psychiatric intermediate care facility, unless the prisoner’s individual treatment plan recommends double celling; provided, however, that in the event such a prisoner is assigned to a double occupancy cell, his treatment team first determines that such assignment is compatible with the treatment plan of the prisoner’s assigned cellmate; (f) all prisoners with a diagnosed psychiatric illness, as defined by the Psychiatric Services Plan, February 14, 1984, and the Comprehensive Health Care Plan, Chapter 150, December 15, 1984, who are being treated on out-patient status, if their individual treatment plans recommend that they be housed in a cell alone; and (g) all prisoners whose medical treatment plans recommend that they be housed in a cell alone; provided, however, that the housing assignment of any patient housed at the TDC Hospital at the Univeristy of Texas Medical Branch — Galveston shall be determined by appropriate medical personnel at that unit. 2. The parties entered into the Crowding Stipulation with the contemplation that TDC may experience a substantial increase or decrease in its population; that the rate of crime and/or conviction within the state of Texas may continue at its current rate or increase or decrease substantially; that the incidence of parole may increase or decrease substantially; that the cost of construction of new facilities and/or renovation of existing facilities may increase or decrease substantially; that substantial difficulty may or may not be encountered by TDC in attracting and employing security and non-security staff; and that substantial construction delays may or may not occur with respect to the renovation of existing units or the construction of new facilities, units or additions thereto. Crowding Stipulation, p. 33. In an order approving the Crowding Stipulation in its entirety, the court stated: “[NJone of these eventualities, should they occur, will affect the scope of defendants’ obligations under the Stipulation.” Order filed July 26, 1985, p. 5. 3. The Crowding Stipulation established the following schedule for the assignment of prisoners to single-occupancy cells: All prisoners confined in administrative segregation shall be assigned to single occupancy cells as follows: 60% forthwith; 75% by September 1, 1986; 85% by September 1, 1987; 90% by September 1, 1988; and 100% by September 1, 1989. All prisoners described in Sections II.I. l.(c), (d), (e), (f), and (g), supra, shall be assigned to single occupancy cells forthwith. 4. The Crowding Stipulation, agreed to by the parties on May 10, 1985, provided that “all prior orders of the Court in this cause shall remain in full force and effect except to the extent specifically noted.” The Crowding Stipulation, p. 1. Paragraph II.F of the “Stipulation and Order Modifying the Court’s Order of January 11,1984,” was not exempted. 5. TDC took no steps to comply with the court’s orders to single-cell prisoners prior to March 27, 1985, when TDC Administrative Bulletin No. 85-44 was issued. Tr. 264. The Bulletin listed the criteria necessary to single-cell an inmate deemed too assaultive or vulnerable to live in a double-occupancy cell or dormitory. Plaintiffs’ Exhibit No. 21; Defendants' Exhibit No. 99; Tr. 241, 428. 6. Notwithstanding the fact that both the April 1984, Order and the Crowding Stipulation required immediate action, no evidence was presented which showed TDC’s actual placement of any inmates into single-occupancy cells before April 1985. Defendants’ Exhibit No. 9; Tr. 225. 7. In April 1985, TDC devised a computer program to monitor identification of inmates requiring single cells. Individual units were notified of this monitoring process on April 22, 1985. Tr. 56. 8. TDC later altered the system to permit the double-ceiling of prisoners identified as eligible for single-celling. Rather than prohibit the deployment of another prisoner to a cell with a “single-cell” prisoner, TDC programmed the computer to send an “error message,” stating that one of the prisoners assigned to that cell was improperly housed. Tr. 129, 755. 9. In June 1985, TDC compiled information regarding compliance in the area of single-celling. Plaintiffs’ Exhibit Nos. 16, 17. An emphasis on the identification process was evident in September 1985. Instructions to regional directors in all units stated: “[w]e emphasize as an absolute requirement that the unit should identify and designate all inmates requiring single celling pursuant to our administrative bulletins, and that under no circumstances would a lack of single cell facilities be justification for the non-adherence to that policy.” Tr. 753. TDC did not show a similar concern regarding the veritable disposition of prisoners to single cells. Defendants’ Exhibit No. 114. 10. Through December 1985, the data generated from TDC's Weekly Single Cell Reports verified that some prisoners in every single-cell category were double-celled because of insufficient bed space. Defendants’ Exhibit No. 9; Tr. 127-28. Table 1 provides a summary of the prisoners incorrectly double-celled. Defendants’ Exhibit No. 7. Table 1 Date Total Number of Prisoners Identified as Requiring Single-Occupancy Cells Total Number of Prisoners Identified for Single-Occupancy Cells but Double-Celled 7- 18-85 1775 358 8- 15-85 2071 278 8- 23-85 2166 314 9- 6-85 2364 70 Table 1 Date Total Number of Prisoners Identified as Requiring Single-Occupancy Cells_ Total Number of Prisoners Identified for Single-Occupancy Cells but Double-Celled_ 9-13-85 2450 56 9-18-85 2503 57 9- 24-85 2486 68 10- 4-85 2968 354 10-8-85 3287 635 10-11-85 3326 640 10-18-85 3508 626 10-22-85 3510 619 10- 30-85 3544 518 11- 07-85 3522 491 11-14-85 3566 497 11-21-85 3663 454 11- 28-85 3629 504 12- 04-85 3720 533 12-12-85 3701 452 12-19-85 3713 326 12-27-85 3646 320 1-4-86 3670 263 1-7-86 3676 264 1-14-86 3671 260 1-21-86 3644 253 1- 30-86 3490 181 2- 4-86 3525 179 2-15-86 3445 36 2-20-86 3471 40 2- 28-86 3477 35 3- 6-86 3482 34 3-12-86 3452 31 3-20-86 3438 38 3- 26-86 3406 34 4- 1-86 3410 36 4-8-86 3372 30 4-15-86 3402 36 4-20-86 3385 28 4- 29-86 3398 26 5- 8-86 3392 8 5-15-86 3375 7 11. As reflected in Table 1, TDC’s brief success in the placement of prisoners in single-cells was interrupted for an extended period of time. The dramatic increase in the percentage of prisoners inappropriately double-celled followed immediately after TDC's reevaluation of potentially assaultive prisoners and those with purported gang affiliations. An emergency situation which arose in September 1985, demonstrated the inflexibility relating to housing inherent in TDC’s crowded system. The emergency continued for eight weeks, and numerous prisoners who had been designated for single-celling were, instead, confined in double cells during this period. 12. The extensive violence perpetrated by prisoners, which served as the underlying rationale for the September 1985, lock-down, was predicted a year prior to its occurrence. Judicial notice is taken of the Benton and Stoughton Report, cited in the November 20, 1984, order approving the Report of the Special Master Concerning the Nineteenth Monitor’s Report of Factual Observations to the Special Master — Report on Section II.C of the Amended Decree (Use of Force), which noted: The TDC faces [a] ... critical challenge. Within the agency, much of the recent focus on inmate management has emphasized the elimination of certain control practices such as the use of building tenders and the use of force. Attention has been focused on what not to do. However, the safe, effective, and ultimately constitutional operation of the prisons must begin with the control of management of the prisoners by the staff. Without such control and management, abuse of prisoners by staff is replaced with other equally pernicious forms of abuse. For the TDC, maintaining this control and management is complicated by several factors: Many of the TDC institutions must manage prisoners in large groups — for work, dining, and even general living (in open dormitories). In conventional correctional terms, these are often very large groups — more prisoners in a dormitory or dining area than certain prison systems would permit in an entire institution. It may have been possible to control such populations using building tenders or the threat of illegal force. However, without these methods of control, the achievement of effective management and control is made more difficult. Gang structures outside of Texas prisons are reported by TDC officials to be attempting to assert their influence within the system. Certain state prison systems face almost impossible control problems in dealing with gangs. Reportedly, Texas has thus far experienced only limited gang influence within its prisons. To whatever extent a “power vacuum” is permitted to exist within the prisons, gangs will probably assert their poisonous influence. The consultants have little doubt that the TDC can, through the implementation of recommendations in this report, restrain the unnecessary and excessive use of force within its prisons. Inappropriate control systems must be replaced, however, by other effective and appropriate control systems. The consultants have observed an ambivalence, on the part of staff within the institutions visited, concerning the management and control of prisoners. The staff recognize the importance of control, but they are unsure as to how to assert control. Officials are aware of control problems, but they are not sure of what the TDC expects them to do to resolve the problems. This is a dangerous situation that becomes more dangerous as time passes. It is important that the TDC develop and implement a short-term and long-term strategy to maintain control in the management of the inmate population. This strategy must not consist of unconstitutional methods, including those prohibited in this litigation. Therefore the strategy will probably entail more traditional prison control systems such as classification, separation, secure confinement, and application of disciplinary procedures. Equally important is the enhancement of TDC’s traditional system of positive time-credit incentives for good behavior that has been central to prison management in Texas. It is a difficult and precarious business to manage and operate any prison or prison system, and it is going to be doubly so for the State of Texas during this transition period and for the foreseeable future. Maintaining the capacity to control and manage the prisoners will require numerous changes in operational practice, and perhaps in law. This process will need the support of elected officials and other policy makers. If these things do not occur and prisoners realize they have nothing to fear and nothing to lose, TDC institutions will become unmanageable and very dangerous. Development and implementation of such a strategy should be a primary task of the Board of Corrections and the new Director that they will select. A realistic and effective strategy will cost additional tax dollars, and may require other legislative action as well. However, failure to develop an effective management and control strategy in a timely manner will inevitably result in tragedy and even greater cost. Benton and Stoughton Report, pp. 3-4. 13. TDC did not heed this warning. After substantial delay and denial of its immanence, TDC eventually dismantled the building tender system. The violence that erupted thereafter was particularly hideous, and resulted in numerous homicides of prisoners. Plaintiffs’ Exhibit No. 28; Defendants’ Exhibit Nos. 15, 97, 98; Tr. 370-72. 14. The percentage of the double-celled prisoners decreased after early October 1985. Nonetheless, TDC was unable to reduce the percentage by a substantial margin until February 1986. As illustrated by the chart below, an average of twenty-five percent, of all prisoners classified as too assaultive to be housed with other prisoners were not assigned to single-occupancy cells. Table 2 Date Total Number of Prisoners Identified as Assault-Total Number of Prisoners Identified as Assaultive for Single-Occupancy Cells but Double-Celled 7- 18-85 827 184 8- 15-85 991 228 8- 23-85 987 218 9- 6-85 1072 36 9-13-85 1075 24 9-18-85 1090 23 9- 24-85 1112 31 10- 4-85 1565 314 10 — 8—85 1923 606 10-11-85 1934 593 10-18-85 1939 578 10-22-85 1942 574 10- 30-85 2004 474 11- 07-85 1972 424 11-14-85 1994 439 11-21-85 2007 402 11- 28-85 1997 456 12- 04-85 2032 481 12-12-85 1976 404 12-19-85 1936 291 12-27-85 1927 271 1-4-86 1924 232 1-7-86 1926 226 1-14-86 1916 224 1-21-86 1905 213 1- 30-86 1819 160 2- 4-86 1810 151 2-15-86 1855 15 2-20-86 1845 15 Table 2 Date Total Number of Prisoners Identified as Assaultive Total Number of Prisoners Identified as Assaultive for Single-Occupancy Cells but Double-Celled_ 2- 28-86 1827 14 3- 6-86 1831 15 3-12-86 1827 14 3-20-86 1827 16 3- 26-86 1827 14 4- 1-86 1812 16 4-8-86 1797 12 4-15-86 1783 15 4-20-86 1762 13 4- 29-86 1748 12 5- 8-86 1739 2 5-15-86 1748 4 15. While the number of vulnerable prisoners identified as requiring single-occupancy cells increased only slightly, the percentage of those improperly double-celled nearly tripled by early December 1985, as indicated by Table 3. Table 3 Date Total Number of Prisoners Identified as Vulnerable_ Total Number of Vulnerable Prisoners Identified for Single-Occupancy Cells but Double-Celled 35 7- 18-85 201 15 8- 15-85 222 22 8- 23-85 221 5 9- 6-85 228 9-13-85 227 9 9-18-85 230 9 9- 24-85 227 6 10- 4-85 206 9 10-8-85 208 5 10-11-85 208 10 10-18-85 220 18 10-22-85 229 14 10- 30-85 227 16 11- 07-85 240 21 11-14-85 244 22 11-21-85 247 22 11- 28-85 244 23 12- 04-85 242 24 12-12-85 244 22 12-19-85 243 15 12-27-85 241 17 1-04-86 240 9 1-7-86 239 13 1-14-86 243 12 1-21-86 233 7 1- 30-86 151 5 2- 4-86 146 5 2- 15-86 133 4 2-20-86 134 7 2-28-86 128 4 3- 6-86 128 3-12-86 130 5 3-20-86 130 4 3- 26-86 146 4 4- 1-86 144 5 4-8-86 138 3 4-15-86 141 3 4-20-86 187 3 4- 29-86 187 4 5- 8-86 183 2 5-15-86 178 0 16. TDC properly housed medical patients requiring single-occupancy cells, with only occasional lapses. The initial progress was less favorable in the two remaining categories, for, as shown below, the percentage of double-celling increased for mentally retarded prisoners, and only remained constant for mental health patients. Table 4 Date Mentally Retarded Prisoners Requiring Single-Occupancy Cells_ Mentally Retarded Prisoners Inappropriately Double-Celled 7- 18-85 186 90 8- 15-85 196 17 8- 23-85 233 49 9- 6-85 225 22 9-13-85 220 10 9-18-85 218 11 9- 24-85 215 14 10- 4-85 215 16 10-8-85 212 18 10-11-85 271 15 10-18-85 262 17 10-22-85 259 17 10- 30-85 255 14 11- 07-85 253 24 11-14-85 248 19 11-21-85 242 15 11- 28-85 231 13 12- 04-85 254 17 12-12-85 266 14 12-19-85 265 13 12-27-85 262 15 1-4-86 261 12 1-7-86 261 14 1-14-86 257 15 1-21-86 251 19 1- 30-86 224 11 2- 4-86 230 13 2-15-86 209 7 2-20-86 205 10 2- 28-86 203 9 3- 6-86 206 10 3-12-86 206 8 3-20-86 206 8 3- 26-86 205 6 4- 1-86 211 9 4-8-86 196 8 4-15-86 195 7 4-20-86 195 6 4- 29-86 195 1 5- 8-86 195 0 5-15-86 193 0 Table 5 Date Mental Health Pris- Mental Health Prisoners Requiring oners InappropriSingle-Occupancy ately Double-CelCells _led 7- 18-85 548 48 8- 15-85 553 18 8- 23-85 576 25 9- 6-85 563 6 9-13-85 565 12 9-18-85 560 13 9- 24-85 563 15 10- 4-85 554 15 10-8-85 552 6 10-11-85 549 11 10-18-85 548 10 10-22-85 550 13 10- 30-85 551 12 11- 07-85 554 21 11-14-85 554 17 11-21-85 543 15 11- 28-85 542 12 12- 04-85 542 11 12-12-85 557 10 12-19-85 557 6 12-27-85 556 16 1-4-86 561 10 1-7-86 561 10 1-14-86 560 8 1-21-86 566 11 1- 30-86 549 5 2- 4-86 552 9 2-15-86 603 7 2-20-86 607 7 2- 28-86 613 8 3- 6-86 608 5 3-12-86 598 4 3-20-86 587 9 3- 26-86 588 9 4- 1-86 585 5 4-8-86 580 6 4-15-86 585 10 4-20-86 589 5 4- 29-86 588 7 5- 8-86 587 1 5-15-86 595 2 17. At the June hearing, TDC maintained that mentally retarded prisoners are single-celled when the treatment team so recommends. Tr. 363. There is, however, some indication that additional cell housing is required. Plaintiffs’ Exhibit No. 35. 18. On August 1, 1985, 70.2% of the administrative segregation prisoners were single-celled. From September 1985, through June 1986, TDC assigned all administrative segregation prisoners to single-occupancy cells. Plaintiffs' Exhibit Nos. 1, 45, 46, 47, 49. This compliance record was unparalleled in any other single-cell category. 19. Prisoners identified as requiring single cells on the basis of assaultiveness or vulnerability have been routinely assigned to administrative segregation. Plaintiffs’ Exhibit Nos. 44, 45; Defendants’ Exhibit No. 7, pp. 81-83; Tr. 305. 20. The specific purpose underlying the classification plan related to security and protection. Under the terms of the plan, special categories of prisoners were to be housed separately, so as to decrease the likelihood of violence within the prison system; and it was not contemplated that single-celling assignments be associated with punishment. Even with respect to prisoners in an administrative segregation status, this directive is clear. In the plan, restrictions regarding prisoners’ privileges and property were deemed to be necessary only for security purposes, and their limitation was not to be based on a punitive rationale. 21. Because of the exiguity of single-occupancy cells, female prisoners were continuously overrepresented among those prisoners improperly housed. Plaintiffs’ Exhibit No. 18. 22. The single-celling order made no distinction founded on gender. Yet, at any given time during 1985, a disproportionate number of women were among those prisoners wrongly double-celled. For example, in September 1985, seventy-eight percent, of those prisoners incorrectly housed were females. Plaintiffs’ Exhibit Nos. 16, p. 100; 17; 54. TDC’s failure to implement the court orders respecting housing for female prisoners is particularly and blatantly culpable. II. Classification The Issues The plaintiffs charge that TDC failed to comply with the “Custody Assignment Procedures” set forth in the Classification Plan of December 1984, thus exposing numerous “general population” prisoners to the dangers of being housed with prisoners in the maximum custody classification. In this regard, plaintiffs contend that the “mixing” of dissimilar custody classifications within the same housing area, as well as the assignment to dormitories of prisoners assigned to a close or medium custody status violates the orders of January 3, 1985, and December 13, 1985. By way of relief, plaintiffs demand that TDC be ordered not to assign prisoners with different custody classifications (including safekeeping status) to the same cellblock or dormitory; and that it also be precluded from assigning to dormitories prisoners who are not in a minimum custody classification. They further demand that this relief be accorded as quickly as possible, and in no event later than October 1,1986. Further, the plaintiffs recommend that a fine be levied against TDC, amounting to $100.00 per prisoner, for each day in which violations of these provisions occur; further, that TDC report regarding its compliance every two months, by means of certifications from its wardens. Under this recommendation, the fines would be held by the District Clerk, subject to disposition by subsequent orders of the court. In defense, TDC contraposes that a finding of contempt would be in error, because the plaintiffs failed to establish that the “classification policies and practices result in the denial of protection against harm from other prisoners that rises to the level of conscious or callous indifference about safety, ... an eighth amendment violation.” Additionally, TDC maintains that plaintiffs did not “establish by clear and convincing evidence that mixing can be reduced further within existing capacity.” Defendants’ Post-Hearing Brief at 37. Neither assertion is legally correct. TDC’s attempt to introduce eighth amendment concerns is inapposite, for the constitutional framework of the classification requirement is not at issue. Nor is it necessary that plaintiffs develop a method (be it depopulation or facility construction) by which TDC might achieve compliance in this area. Rather, to support a finding of contempt, plaintiffs must establish by clear and convincing evidence that TDC has inappropriately mixed custody classifications or has housed prisoners not in a minimum custody status in dormitories, or has done both, in violation of the stipulations forming the bases for this court’s orders. Findings of Fact 1. In Section II.E of the Amended Decree, it was ordered that TDC file a classification plan which would minimize prisoner-on-prisoner violence and assure that minimum custody prisoners were the only ones housed in dormitories. The Amended Decree specified that: So long as defendants confine more than one prisoner to a cell of sixty square feet or less, or to a dormitory, they shall maintain a classification system assuring that abuses of prisoners by those they live with will be minimized. By August 1. 1981, defendants shall file a plan with the court setting forth an adequate classification system and timetable for its implementation. The plan will include provisions to insure that in the future only minimum security prisoners are assigned to live in dormitories. 2. The Plan provides that: [classification of inmates who are committed to the Texas Department of Corrections is a continuing process that begins the day that the inmate is delivered to the custody of the Department and that ends only when the inmate is released from custody. Classification encompasses virtually all decisions that affect the inmate’s life during the entire period of incarceration. Assignments to custody, housing, programs, work, treatment, and other activities and decisions relevant to furloughs and good conduct time award evolve from classification decisions that are issued by the Texas Department of Corrections classification Committee. Classification Plan, p. 15. 3. TDC’s December 1984 Classification Plan provides, in pertinent part: a. Minimum custody inmates shall be subject to cell or dormitory housing with the following exceptions: 1) minimum custody inmates shall be assigned to dormitories on a priority basis; 2) minimum custody inmates shall be assigned to housing areas that are designated as minimum custody only. b. Medium custody inmates shall be assigned to cell housing, (except medium custody women who shall be housed in dorms until cell housing is available) housing [sic] that is designated as medium custody housing only. c. Close custody inmates shall be confined to cell housing with the following exceptions: 1) female inmates may be assigned to dormitories until an adequate number of cells are constructed at female units; 2) close custody inmates shall be assigned to housing areas that are designated as close custody only. d. Maximum custody (Administrative Segregation) shall require the highest degree of custody supervision. 4. The Administrative Segregation Plan, approved by court order dated March 8, 1983, restricted housing of these prisoners to specific cells or cellblocks, exclusive of solitary confinement cells, except in rare instances. Classification Plan, p. 146. 5. On January 3, 1985, it was ordered that immediate implementation of the 1984 Classification Plan be executed; and those provisions were made permanent by an injunction, dated December 13, 1985. 6. TDC identified two categories where prisoners of dissimilar classifications are housed together: “designated mixed housing” and “overflow.” Designated mixed housing occurs when the housing scheme permits different custody classifications to be assigned to the same cellblock. For example, a cellblock may house prisoners in different custody classifications on different tiers by reason of its design. Overflow represents a unit’s departure from the housing scheme, in the respect that prisoners of different custody categories are assigned to the same cellblock. While an entire cellblock may be designated for medium custody prisoners only, overflow mixing places close custody prisoners in that housing area, because of the unavailability of appropriate housing. Plaintiffs’ Exhibit Nos. 16, p. 92, 17, 19, 22, 23, 24, 46, 50; Defendants’ Exhibit Nos. 6, 10, 103; Tr. 8, 201-02, 224, 313, 315. 7. Not until February 1986, did TDC begin to address the problems associated with mixing. Plaintiffs’ Exhibit No. 43; Tr. 214-15. Throughout the show cause hearing, TDC admitted that some 400 prisoners remained improperly housed. Tr. 201, 836. TDC suggested that it will be unable to reduce this figure before the scheduled 1987 depopulation of the prison. Tr. 71, 203, 204, 266, 469. 8. The Special Master’s Office credibly estimated that, at any given point in 1985, the number of “mixed” prisoners exceeded 3,000. It is apparent that TDC’s reporting of significantly smaller numbers is inconsistent with its subsequent statement that, at the height of its “unmixing,” some 6,000 prisoners were transferred. Plaintiffs’ Exhibit Nos. 17, 22, 23; Tr. 219, 223, 332. 9. While TDC purported to assign “overflow” prisoners to the next best housing placement (e.g., assigning close custody prisoners to medium confinement cell-blocks, instead of to minimum housing facilities), all custody classifications continued to be mixed through July 1986. Tr. 182, 298-99, 310, 314. When an overflow occurred in the administrative segregation area, solitary cells were utilized. Plaintiffs’ Exhibit Nos. 23, 45, 46, 56, 65, 66, 80, 83. 10. A deficiency still exists in cell housing for close and medium custody female prisoners, even after the recent construction of ninety-six cell beds in fifty-two cells (forty-four double-occupancy cells and eight single cells). Tr. 440. TDC and the Special Master’s Office differ as to the remaining beds needed, but each figure exceeds 100. Plaintiffs’ Exhibit Nos. 18, 20; Defendants’ Exhibit No. 8; Tr. 253-55, 437-38. Judicial notice is taken of the Thirty-Third Monitor’s Report — Report to the Special Master Concerning Implementation of the Classification Plan, filed September 19, 1986, wherein cell housing deficiencies in the women’s units were noted. 11. TDC has reviewed several approaches to the problems associated with housing for female prisoners. It rejected a proposal to utilize one of the male units to redress the lack of cell housing for females. Tr. 255-56, 336, 356, 365-66. There is some indication that TDC may, inappropriately, attempt to house women prisoners in a close custody status in cells designated for mentally retarded prisoners. Tr. 767. At present, TDC relies on paroles to maintain the female prisoner population at its current level. Tr. 255-56. Additionally, TDC has requested modification of the agreement, so as to eliminate the requirement of cell housing for medium and close custody women prisoners. Defendants’ Exhibit No. 96, p. 53; Tr. 251, 556, 569-70, 1125-26. 12. Plaintiffs cited several uncontroverted incidents of violence in designated mixed housing and overflow housing. By way of example, on November 17, 1985, a minimum custody prisoner, housed on the fourth tier, was stabbed (non-fatally) in the first tier dayroom. The attacker was a medium custody prisoner who was housed on the first tier. Violence is also present in the dormitory designated for women prisoners in a close custody status. Reported incidents include prisoner-on-prisoner attacks and assaults on TDC staff. Plaintiffs’ Exhibit Nos. 32, 33, 34, 68, 69, 81; Tr. 522. III. STAFF DEPLOYMENT The Issue Plaintiffs allege that TDC failed to deploy correctional officers in several of the housing areas, in violation of the “Order Implementing Staffing Provisions of the Stipulated Modification,” dated October 26, 1982. As a means of obtaining relief, the plaintiffs proposed the assignment of correctional officers to cellblocks by September 1, 1986, and to dormitories by November 1, 1986. It was also suggested by plaintiffs that the posted officers engage in continuous surveillance and irregular but frequent patrols; and that by January 1, 1987, TDC be required to employ a staff sufficient to generate a 1:6 staff/prisoner ratio. Finally, the plaintiff class recommended that TDC’s failure to conform to this provision result in a fine against it of $5,000.00 per day for each unit, for every such failure, the funds to be held by the District Clerk until further order of the court. In opposition, TDC contends that the October 1982, order will not support a finding of contempt, inasmuch as strict compliance with a joint National Institute of Corrections/TDC study (to which reference was made) was not compelled. As a posited good and sufficient reason to modify the order, TDC cited the numerous complexities inherent in the transition from a system largely controlled by prisoners to one in which the staff exercises authority. Moreover, TDC requested an extension of time to place correctional officers in the housing areas. An examination of the October 1982, order and the staffing study mentioned above will begin this discussion. Findings of Fact 1. Section XII of the Stipulated Modification of Section II,D and Section II,A of the Amended Decree (Stipulated Modification) established a process for determining the minimum number of officers required to staff TDC adequately. The process involved a study jointly undertaken by TDC and the National Institute of Corrections during the summer of 1982. In this period, each group utilized two experts to perform an analysis of the needed number of security officers for the Texas prison system. 2. This study formed the basis for dismantling the building tender system. The study was designed to determine the appropriate number of correctional officers necessary at every unit, in order to make adequate provisions for the required positions on each shift, all to the end that TDC staff members, and not prisoners, would perform the functions prescribed by the Stipulated Modification. 3. The Staffing Study made it plain that the assignment of security officers to TDC housing areas should be mandatory: Throughout the report the teams have recommended placing officers inside the cellblocks and dormitories. Such assignments are mandatory to properly carry out the Agreement. The placement of correctional officers on such assignments represents the minimal coverage required to provide a reasonable safe environment. Staffing Study, p. xii. 4. Following the study, the experts involved issued a Final Report in September 1982, which detailed the staff required for various positions, and also set forth the necessary points of deployment within the housing areas. 5. In the order approving the Final Report on October 26, 1982, it was stated that: Defendants shall retain the discretion to deploy staff in whatever manner they deem appropriate, provided that (a) they shall use the Final Report as a guideline, (b) staff deployment shall be substantially in compliance with the assumptions and recommendations of the Final Report, and (c) deployment shall meet the conditions of the Stipulated Modification. 6. It is apparent that no discretion was granted to TDC regarding whether deployment would occur, since the October 26, 1982, order made it obligatory that TDC employ and maintain staff in accordance with the timetables of Section XIII of the Stipulated Modification: Specifically, the required staff for the Ramsey I, Ellis and Eastham Units shall be employed and maintained as quickly as possible and not later than January 1, 1983; the required staff for the Coffield, Ramsey II, Retrieve and Darrington Units shall be employed and maintained as quickly as possible and not later than January 1, 1984; and the required staff shall be employed and maintained for all other units as quickly as possible and not later than January 1, 1985. 7. This order implementing the staffing study was modified on July 11, 1983, when, in consideration of changed circumstances, the elimination of payroll officer positions was approved. The total number of officers required under the Stipulated Modification and the staffing study, however, was not decreased. See Plaintiffs’ Exhibit Nos. 29, 30, 31; Defendants’ Exhibit No. 25; Tr. 594-95, 639. 8. As the Court of Appeals for the Fifth Circuit noted in its affirmance of the Stipulated Modification, this court’s remedial decree ordered that: TDC double its staff-prisoner ratio to one uniformed staff member for every six prisoners. It specified how TDC was to deploy the staff in prisoner living areas, permitting TDC to alter the deployment pattern only upon a showing that the “prescribed staffing pattern is unnecessary in the particular instance.” Ruiz v. McKaskle, 724 F.2d 1149, 1151 (1984). 9. Despite this specific mandate that officers be posted inside the cellblocks and dormitories throughout TDC, no officers were actually assigned to any housing areas at ten of TDC’s twenty-seven units, as of January 3, 1985. Further, at four additional units, no officers were assigned to a majority of the unit housing areas. Plaintiffs’ Exhibit Nos. 29, 37; Tr. 45, 644, 667, 1149. 10. The monitor for TDC’s Office of Compliance testified that, at the time of her visits on June 15, 1986, several units had properly deployed staff. Yet, a significant number of units which had been reviewed were not in compliance with the staffing study requirements. Tr. 626-27, 631, 634, 637-38, 654, 656. The monitor’s testimony was based on personal observations, data from unit shift rosters, and discussions with unit personnel. Tr. 601, 609-10, 648, 655. 11. Certain .TDC wardens admitted that they were unaware of the court order requiring the posting of correctional officers inside the living areas. Others, aware of the deployment directive, chose not to post the officers in favor of use of the staff in other areas. Plaintiffs’ Exhibit Nos. 50-53; Defendants’ Exhibit No. 22,126; Tr. 49, 50, 518, 837. 12. TDC insists that it can meet the staffing study requirements by reorganizing its existing clerical staff and employing 550 correctional officers. Under the present budgetary cycle, these new officers would commence employment in September 1987. Testimony revealed that these personnel changes will not result in conformance with the staffing requirements. Plaintiffs’ Exhibit Nos. 6, 7, 29, 38, 39, 49, 80; Defendants’ Exhibit Nos. 12-14,17, 22; Tr. 518, 646, 660-61, 663, 665, 791, 792, 888. 13. The tenable and plausible testimony of several penology experts was to the effect that a failure to post correctional officers inside the living areas represents a critical breach of security. 14. The absence of correctional staff in living areas is detrimental for medical reasons, in addition to concerns relating to security. Plaintiffs’ Exhibit Nos. 40-42, 50, 75, 76; Defendants’ Exhibit Nos. 22, 122, 123, 127, 128; Tr. 1057. The somber testimony of prisoners regarding the critical need for emergency medical assistance, and, as well, the importance of having access to correctional staff at these junctures, forcefully denoted these compelling needs at the show cause hearing. Plaintiffs’ Exhibit No. 62; Tr. 1247-48; 1253, 1307, 1381-82, 1387, 1389-90, 1399-1400. IV. MEDICAL STAFF The Issues The plaintiffs contend that TDC does not employ a sufficient medical staff to assure the adequate health care which was contemplated by the staffing patterns set forth in Attachment 107-J to the Comprehensive Health Care Plan. To effect relief in this regard, the plaintiffs seek immediate recruitment for the vacant positions, monthly reports from TDC detailing its employment efforts, and a fine of $1,000.00 per day from TDC, for each position with a vacancy rate over ten percent., until it is filled. TDC admits that it has not employed the medical staff in accordance with the Comprehensive Health Care Plan, but, nonetheless, argues that a finding of contempt is not warranted, inasmuch as the staffing patterns allegedly are merely a guide, and do not manifest a specified number to be used as the benchmark in assessing compliance with the Plan. An examination of the relevant provisions of the Comprehensive Health Care Plan will clarify the staffing requirements. Findings of Fact 1. Under Section I.A of the Consent Decree, adopted by order of March 3, 1981, defendants were obligated to file a health care plan sufficient to “assure that prisoners receive necessary medical, dental and psychiatric care,” and to provide “adequate inpatient and outpatient psychiatric and other psychological care.” The Comprehensive Health Care Plan, filed in December 1984, and the Psychiatric Services Plan, filed March 12, 1984, incorporated staffing patterns representing the numbers of persons agreed by the parties as necessary to deliver adequate health service. Thereafter, TDC was ordered to implement such plans, and to employ “sufficient staff to constitute the substantial equivalent” of those staffing patterns. See paragraph 2, p. 2, of the order to implement the Health Care Plan entered January 2, 1985; the order to implement the Psychiatric Services Plan, entered January 6, 1985; and Section IX.A of the Crowding Stipulation, confirmed by order entered on July 26, 1985. 2. Data has been compiled from the following sources: the Comprehensive Health Care Plan, Attachment 107-J, and the Semi-Annual Progress Report on the Texas Department of Corrections; the Comprehensive Health Care Plan, the Psychiatric Services Plan, the Mentally Retarded Offender Plan, the Physically Handicapped Offender Plan (Reporting Period October 1, 1985 through March 81,1986), and the June 26, 1986, Stipulation Concerning Health Care Positions. Plaintiffs’ Exhibit Nos. 25, 54, 66, 67, 68; Defendants’ Exhibit No. 120. These documents establish the patterns shown below, and starkly demonstrate TDC’s flagrant lack of compliance. HEALTH CARE POSITIONS REQUIRED FILLED FILLED POSITION_BY CHOP 3-20-86 6-26-86 Psychiatrists 28 8.113 10.9 Physical Therapists 8 0 0 Respiratory Therapists 7 2 3 Occupational Therapists 10 2 3 Registered Nurses 248 53 55 Dental Hygienists 28 12 12 Dietitians 9 3 8 TOTALS 338 80.1 91.9 3. TDC recruitment efforts included the following: local, regional, and national advertising; attendance at job fairs and career days; direct contact with recent graduates of a variety of medical degree programs; and direct contact with graduating registered nurses. These efforts have proven largely unsuccessful, by reason of the fact that the salaries proffered by TDC are non-competitive. Plaintiffs’ Exhibit Nos. 26, 27, 55; Defendants’ Exhibit Nos. 1, 2, 3; Tr. 85-86, 722. 4. The court-appointed mental health consultants, Ort and Faiver, found that, in 1983, a private psychiatric hospital in Dallas, Texas, paid newly hired psychiatrists immediately out of their residencies an annual salary between $82,000.00 and $92,-000.00. More experienced psychiatrists were earning between $128,000.00 and $158,000.00 per year. Ort and Faiver also noted that the typical staff psychiatrists working in the Michigan Department of Corrections earned $79,500.00 (with or without Board certification), and the highest level earned $95,000.00 (available only to those with Board certification). See Ort and Faiver Report, p. 39. 5. TDC offered psychiatrists three employment options: 1) a straight salary of $66,200.00; 2) a contract to work twenty hours a week at a rate of $65.00 per hour, with no benefits; and 3) a contract to work forty hours per week at an annual salary of $83,000.00. Under the third option, the psychiatrist must forego all fringe benefits normally paid to an employee, and must also carry his or her own malpractice insurance. No psychiatrist has selected the third option thus far. 6. At the time of the hearing, TDC had been able to fill only 250 (33%) of the 757 hours of psychiatric coverage considered by the TDC Medical Director as the minimum requirement. The Psychiatrist Service Plan calls for 1,280 hours of psychiatric coverage (32 psychiatrists at forty hours per week). Thus, TDC had only twenty percent, of the necessary psychiatric coverage. 7. Salary differentials, the remote location of many TDC prison units, and the stigma historically associated with prison employment in the medical profession were offered by the witnesses as explanations for TDC’s poor recruitment and retention of psychiatrists. 8. The starting salaries for dental hygienist I and II are $20,712.00 and $25,-224.00, respectively. All TDC positions are classified as dental hygienist I, regardless of the professional experience of the person filling the position. In the absence of salary adjustments, appropriately increased, the Special Master fairly and reasonably questioned whether TDC will be able to fill these positions. Plaintiffs’ Exhibit No. 27. 9. In February 1986, TDC reclassified salaries for dental hygienists, respiratory therapists, and dietitian. The increases averaged $3,500.00. Tr. 887. Likewise, salaries for nurses were increased. Plaintiffs’ Exhibit Nos. 27, 85; Defendants’ Exhibit Nos. 3, 116, 117. 10. Physical therapist positions were allocated to TDC in September 1983. Although efforts were made to recruit for these positions by advertising, TDC had not received any applications from registered physical therapists at the time of the hearing. Comparative salaries make it evident that TDC’s starting salary of $24,336.00 is not competitive. Court-appointed experts recommended salaries of $25,000.00 to $30,-000.00 as being necessary to attract experienced registered physical therapists. The Texas Department of Health, and also the Texas Department of Mental Health and Mental Retardation, employ registered physical therapists at initial salaries of $25,224.00 or $29,736.00; and the University of Texas Medical Branch at Galveston pays such therapists $22,716.00 to $32,-820.00, annually. The community norm in Texas is estimated to be $27,000.00. Plaintiffs’ Exhibit No. 27. 11. In 1985, TDC had in excess of fifty wheelchair-bound prisoners, approximately one-half of whom are paraplegic or quadraplegic. A like number of prisoners are mobility-impaired by reason of amputations. The absence of a physical therapist on the staff impairs TDC’s ability to provide adequate medical care to the physically handicapped population, and to those prisoners who require rehabilitative physical therapy while convalescing from injuries or illnesses. Tr. 677, 837. V. PHYSICALLY HANDICAPPED PRISONERS The Issues The plaintiffs argue that TDC failed to provide physically handicapped prisoners with adequate medical care, living facilities, working conditions, and, as well, with equal access to work, recreation, vocational and academic education, and other programs for TDC prisoners. Further, the plaintiffs contend that this denial of benefits and services violates Sections I and II of the Consent Decree of March 3,1981, and Standard 150 of Defendants’ Comprehensive Health Care Plan, approved by an order dated January 2, 1985. In order to achieve compliance with the standards incorporated in the decree and plan, and to ameliorate the present conditions, the plaintiffs propose that TDC take certain immediate actions. In particular, the plaintiffs recommend the following: the immediate transfer to an air-conditioned environment of prisoners with spinal cord lesions at the T-6 interspace or above; appropriate housing for physically handicapped prisoners by December 1, 1986, including the designation of one or more housing areas on units to accomodate prisoners with disabilities; the conversion of a third dormitory at Jester III for wheelchair users by December 1, 1986, with a maximum capacity of twenty prisoners; reductions in the capacity of the remaining two Jester III dormitories; the completion of the modifications specified in the Meier/Rheinecker report by December 1, 1986, coupled with the air-conditioning requirement; permission for mobility-impaired prisoners to shower at any time, as necessary; ready availability to such prisoners of extra bed linens and clothing; medical evaluations of all mobility-impaired prisoners housed at Jester III by a qualified psychiatrist (who will update the individualized treatment plans); the employment by such date of at least one physical therapist and one physical therapist assistant; implementation of the Revised Physically Handicapped Plan (June 1986), except for portions inconsistent with the above-mentioned provisions; the preparation and filing of a supplemental plan, with the assistance of a psychiatrist, by September 1, 1986; the compilation of a comprehensive listing of male and female prisoners, denoting their specific handicapping conditions, by October 1, 1986, which will also set forth the unit assignment, housing location, job and other program assignments for such prisoners; and the submission of a report from the Special Master concerning defendants' compliance with the aforementioned provisions, to be filed by January 1, 1987. Plaintiffs also seek a fine of $500,000.00 from TDC for its alleged contempt, to be disbursed to physically handicapped prisoners institutionalized from April 20, 1982, to the present. The plaintiffs also propose that the award per prisoner be limited to $300.00, for each month of confinement; further, should the entire amount not be disbursed, that the funds be returned to TDC, with instructions that they be used to improve facilities, programs, and services for the physically handicapped; and, finally, that the failure to comply with any of these provisions result in a fine to TDC, the amount and disposition of which to be determined by further order of the court. TDC maintains that the Consent Decree does not require equal access to programs. Defendants’ Post Hearing Brief at 65. Claiming that handicapped prisoners do not enjoy a suspect classification under the equal protection clause of the fourteenth amendment, TDC argues that any rational reason for disparity in the treatment of such prisoners will survive judicial scrutiny. In this relation, TDC posits that the practical concern of excessive expense justifies the allegedly disparate treatment of this special class of prisoners. Findings of Fact 1. The Consent Decree, filed April 20, 1981, provides in part: 1. Health Care * * * * * * C. No prisoner shall be denied access to work, recreation, education or other programs or opportunities because of health status unless required for medical reasons as determined by a licensed physician. II. Special Needs Prisoners Special needs prisoners shall be defined as those who are mentally retarded, physically handicapped, developmentally disabled or require psychological or psychiatric care. Defendants will provide all special needs prisoners with adequate medical care, adequate living facilities and working conditions (if appropriate), fair discipline, and protection from other prisoners. By September 1, 1981, Defendants will file with the Court a plan which includes provision for: 1. a system for adequately identifying special needs prisoners and for evaluating their needs; 2. individualized treatment and placement plans appropriate for such prisoners’ needs and assurances for their implementation; 3. architectural modifications of portions of existing facilities to permit, insofar as possible, physically handicapped prisoners access to programs and activities;____ (Emphasis added.) 2. The Amended Stipulation and Order — Huntsville Unit Infirmary, March 1983, more specifically provided: Defendants shall place physically handicapped prisoners who do not require hospital or infirmary care in a setting that maximizes their access to TDC programs, services and activities available to general population inmates. The Defendants shall immediately evaluat