Full opinion text
COLEMAN, Circuit Judge. This is a 42 U.S.C. § 1983 challenge to nearly every conceivable facet of the Jackson County jail at Pascagoula, Mississippi, in use at the time the lawsuit was filed and the case was tried. Since oral argument before us, a new jail designed for single cell occupancy, with approximately 80 square feet to the cell, has been opened. In uncontroverted post argument affidavits, we have been assured that the “old jail” will hereafter be in limited use to detain individuals for short periods of time while they are in the process of supplying bail, and the like. Since the old jail is not to be closed and could be returned to its former functions, we shall decide this appeal on the merits. We are, however, entitled to take into consideration the existence of the new jail, Smith v. Sullivan, 5 Cir., 1977, 553 F.2d 373. We must remember, also, that except where necessary to maintain federal constitutional rights, federal courts do not sit to supervise state prisons, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Unlike the situation in some prisons, the conditions in the Jackson County jail cannot accurately be described as “uncivilized” or as “barbaric and inhumane”. The case is unusual in that the State of Mississippi, in violation of prior precedent, has seen fit to temporize by directing that many convicted felons be held in county jails while the penitentiary is slowly, ever so slowly, being brought up to constitutional standards. Hence, in this particular jail setting we are dealing with the federal constitutional rights of convicted felons, convicted misdemeanants, and pretrial detainees, held in a county jail, not in a penitentiary. This necessitates recognition of the Constitutional distinctions between convicts and pretrial detainees. Convicted .prisoners are entitled to the protection of the Eighth Amendment, which prohibits cruel and unusual punishment. “[Cjonfinement conditions of a pretrial detainee, it must be analyzed as a due process deprivation rather than as cruel and unusual punishment”, and a detainee is entitled to relief only if jail conditions amount to a violation of Due Process, McMahon v. Beard, 5 Cir., 1978, 583 F.2d 172. Pretrial detainees have not yet been convicted of any offense and are accorded the presumption of innocence when brought to trial, but the fact remains that they are being held on probable cause to believe that they are, in fact, guilty of a violation of the criminal statutes. There was another circumstance of no small importance. In December, 1976, the Jackson County Sheriff found drugs in the jail. In an effort to put a stop to that, he inaugurated a policy of searching all jail visitors, a policy expressly approved in Newman v. Alabama, 5 Cir., 1977, 559 F.2d 283, 291. The prisoners responded with a riot, in which they very nearly wrecked the jail. The necessary repairs cost the taxpayers over $30,000. It has been said that the pretrial detainee should not have to suffer conditions any more restrictive than those necessary to ensure his presence for trial, Duran v. Elrod, 7 Cir., 1976, 542 F.2d 998, 999; Rhem v. Malcolm, 2 Cir., 1974, 507 F.2d 333, 336, 337; Miller v. Carson, 5 Cir., 1977, 563 F.2d 741, 750. It is an ineluctable fact, however, that the detainee is in jail, subject to all the institutional necessities that are thus brought into play. “[T]he same practical reasons that counsel judicial restraint in second-guessing correctional officials dictates restraint in second-guessing the authorities who run jails”, Feeley v. Sampson, 1 Cir., 1978, 570 F.2d 364, 371. Furthermore, for a prisoner to establish a prima facie § 1983 case of cruel and unusual punishment he must prove that the prison authorities acted with deliberate or callous indifference to his constitutional rights. Proof of simple negligence is not enough to pierce official immunity, Bogard v. Cook, 5 Cir., 1978, 586 F.2d 399; Fielder v. Bosshard, 5 Cir., 1979, 590 F.2d 105. Whirl v. Kern, 5 Cir., 1968, 407 F.2d 781, cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969), was a § 1983 action for false imprisonment wherein it was held that neither good faith nor non-negligence could exculpate a sheriff from Civil Rights Act liability for false imprisonment. Whirl has been undercut on both points. First, as to reasonable good faith defense, Bryan v. Jones, 5 Cir., 1976, 530 F.2d 1210 (en banc). Judge Gee would have expressly overruled Whirl rather than to have it “materialize from time to time . . . present in form but eviscerated”. Three Judges, including the author of the original Whirl opinion, said that the majority opinion cast Whirl “adrift to become a derelict in the law”, 530 F.2d 1219. See, also, Miller v. Jones, 5 Cir., 1976, 534 F.2d 1178. Secondly, simple negligence is not enough to pierce official immunity in a § 1983 case, Bogard v. Cook, supra. The Class Action After considerable skirmishing, which in the interest of brevity we need not detail, see, e. g., Jones v. Diamond, 5 Cir., 1975, 519 F.2d 1090, the District Court certified a plaintiff class which included all persons who were incarcerated at the time of the filing of the complaint, or are now, or in the future will be confined in the Jackson County jail, either to serve a sentence or awaiting sentence . . . On appeal, neither party has attacked the certification. The trial proof concerned both pretrial detainees and convicts. Since the parties and the trial court clearly regarded the class as including all jail inmates, we shall do likewise. This, of course, includes all black prisoners within the certified subclasses, and the claims of racial discrimination are properly here. Jones’ individual claims are not before us. In a memorandum opinion dated August 12, 1977, the District Judge stated that “it would be futile and a waste of time to consider and pass upon the class action until after the completion of the construction of the new Jackson County jail next year”. Having made that determination, he proceeded to adjudicate Jones’ individual claims and found that each of them was “wholly without merit and should be dismissed with prejudice”. Eleven days later, a “Partial Judgment” was entered in which Jones’ application for a permanent injunction and for damages was “dismissed with prejudice”. Jurisdiction over the class action issue was retained and ruling reserved for a later date. Judgment was then entered on Jones’ claims. Jones did not appeal this judgment. Instead, plaintiff sought a writ of mandamus from this Court to order the Judge to consider the class issues. On November 3, 1977, a panel of this Court issued the writ, but did not consider Jones’ claims. Approximately one month later, the District Judge issued a forty eight page memorandum stating his findings of fact and conclusions of law. A decision granting partial injunctive relief was also entered, and the plaintiffs then moved, Rule 24 of the Federal Rules of Appellate Procedure, to appeal in forma pauperis. The Judge granted the motion for the class to appeal, but denied the motion as to Jones because his claims had been dismissed with prejudice on August 23, 1977. On February 6, 1978, Jones moved this Court for leave to appeal the August 23 order in forma pauperis. That motion was denied on May 22, 1978. Thus, Jones’s individual claims are not now before us. Since Jones’ individual claims have thus been finally adjudicated and dismissed, can he properly continue to represent the class? Our recent en banc decision in the case of Satterwhite v. City of Greenville, 5 Cir., 1978, 578 F.2d 987, canvassed the decisions in this area and noted that when a class has been properly certified, the case tried, and the class representative’s individual claims determined to be meritless or moot, the representative is not automatically barred from prosecuting an appeal on the class issues. Id. at 993, 996. In this case, Jones is a member of the class and certainly has retained a sufficient homogeneity of interests at every moment of the litigation to qualify as an adequate representative. See Sosna v. Iowa, 419 U.S. 393, 403 n. 13, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Therefore, the class issues are properly before us. In addition to damages, the plaintiffs sought sweeping injunctive and declaratory relief and alleged violations of the First, Fourth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the Constitution, cognizable under 42 U.S.C., § 1983. By an amendment to the complaint, the plaintiffs added a pendent state law claim. On appeal plaintiffs pursue their assertions of violations of numerous constitutional rights, which they have grouped into the following categories: (1) right to recreation, (2) overcrowding, (3) right to adequate medical care, (4) visitation, (5) utilization of trusties, (6) racial segregation, (7) right to an adequate diet, (8) right to uncensored communication, (9) right to fair disciplinary proceedings, (10) a proper classification system, (11) right to protection (inmate security), (12) physical facilities, and (13) right to access to the courts. They also press their pendent state law claims. THE MISSISSIPPI PENAL SYSTEM Since shortly after 1900, Mississippi has operated a centralized prison system at Parchman and until recently all felons sentenced to prison were confined at that place. Parchman is not a walled prison but a state prison farm, occupying thousands of acres. Each county has a jail, generally used to hold misdemeanants and persons awaiting trial or those convicts awaiting the outcome of an appeal in non-bailable offenses. The counties, not the state, have sole responsibility for the erection, maintenance and operation of these jails. The State of Mississippi has been in prolonged, extensive litigation in the federal courts over conditions at its penitentiary. Those prisoners who cannot be received at Parchman are now confined in county jails across the state, and the legislature has, for how much longer we do not know, shifted a substantial part of the operation and costs of its pénitentiary system to the 82 counties, whose Boards of Supervisors, the county governing and taxing authority, are powerless to alter the statutes which control the operations of the criminal justice system. Astonishingly enough a recently enacted state statute authorizes convicted persons to serve all or a part of their sentences in a county jail, provided that the department of corrections certifies to the county sheriff that there is no space available for the convict in the state penitentiary, Miss.Code Ann. § 47-5-112 (1978 Supp.). Apparently, this statute is designed as a temporary measure, for it was scheduled to expire of its own terms on February 28, 1979. Under this kind of system, the overcrowding at Parchman was exported to the county jails and those who have to support, maintain, and operate those jails have been powerless to reject the system. In Mississippi, an intricate statutory scheme regulates the erection, maintenance, and administration of county jails. Broad oversight responsibility for all facets of the county jail is lodged with the county board of supervisors. See Miss.Code Ann. § 19-3-41 (1972). The board is required, at least quarterly, “[to] examine into the state and condition of the jail, in regard to its safety, sufficiency, and accommodation of the prisoners, and from time to time take such legal measures as may best tend to secure the prisoners against escape, sickness, and infection, and have the jail cleansed.” Id. § 19-5-1. They are authorized to levy taxes, id. § 19 — 3—41, and to appropriate funds from the county treasury, id. § 19-3-59. They may employ janitors and other assistants as required. Id. § 19-7 — 13. Finally, if the jail needs remodeling, enlarging, or repairing, state law charges the Board of Supervisors with the duty to erect a new jail or renovate the existing jail. Id. § 19 — 7—11. This requirement, however, can be nullified if the voters refuse to approve the necessary bond issues. The sheriff is the local official charged with the responsibility for day-to-day operation of the jail. He has charge of the jail and of the prisoners. He has a duty to protect both from “mob violence, from any injuries or attacks by mobs or otherwise, and from trespasses and intruders.” Id § 19-25-69. He shall keep the jail in a “clean and comfortable condition” and must prosecute all persons who deface the jail. Id. Generally, the sheriff is also the jailer and, “as jailer, shall provide daily wholesome and sufficient food and drink, fire and lights when necessary and proper, and sufficient and clean bedding for all prisoners . . . .” Id. § 19-25-71. See also id. § 47-1-51. The statutes further authorize the board of supervisors to choose one of three alternative schemes of feeding prisoners, namely, contracting with a local caterer or restaurant, allowing the sheriff to simply purchase the necessary food and supplies in the name of the county, or granting the sheriff an allowance for such expenses. Id. § 19-25-73. Any prisoner may supply himself with food and bedding, but these items must first be inspected by the sheriff. Id. § 19-25-71. Lastly the sheriff must also keep separate rooms for the sexes and shall not permit any “communication” between prisoners of different sexes. Id. See also id. § 47-1-23. The state board of health and the county department of health provide guidance and assistance to the sheriff in the areas of health and sanitation. The state board of health has broad oversight responsibility for a myriad of public functions, including prisons. Id. § 41-3-15. The directives of the state board of health are to be carried out either by a county health department or a county health officer, as may be determined by each county, based upon its needs. See generally id. §§ 41-3-37 through 55. The state statutory scheme places additional duties on the shoulders of local officials. Once convicted, each prisoner shall be comfortably clothed at the expense of the county. Id. § 47-1-47. If a prisoner needs medical attention, the sheriff is charged to examine the prisoner and then, if he thinks it necessary, to call in a physician to attend the prisoner. Id. § 47-1-57. Alternatively, the sheriff may take the prisoner . to the nearest hospital, and the expenses will be borne by the county if the prisoner is indigent. Id. § 47-1-59. Furthermore, maltreatment, including the willful failure to furnish food, clothing, shelter, bathing facilities, or medical attention, when under a duty to do so, is punishable as a misdemeanor. Id. § 47-1-27. Finally, the statutes contemplate some measure of citizen and judicial oversight of the county jails. At each term of the circuit court, the grand jury must make a personal inspection of the condition of the jail and its adequacy for the safe-keeping of the prisoners. The grand jury must inquire into the accommodation and health of the prisoners and report their findings to the court. Id. §§ 13-5-55, 47-1-31. Once a jail becomes insufficient for the accommodation of additional prisoners, the judiciary is under an obligation to order the removal of new prisoners to the jail of another county, to be kept there until the appropriate court tries the accused. Id. § 47-3-1 (1978 Supp.). In addition, upon the petition of the state attorney general, a district attorney, or an interested private person, the state circuit courts may, through the writ of mandamus, order a public officer “to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law.” Id. § 11-41 — 1. This points up the fact that Mississippi does have a statutorily articulated policy which commands humane treatment for the county jail prisoners. Detailed provisions for the enforcement of this policy have been hereinabove described. State officials and interested private persons may invoke the aid of the courts for the enforcement of this policy. For infractions, a prisoner may sue for damages in the state courts. The general practice, however, is that aggrieved prisoners resort to the federal courts, which can have jurisdiction only in those cases involving a denial of rights guaranteed by the federal Constitution. Such is the case we now have before us, with some pendent state claims tagging along. THE JACKSON COUNTY JAIL The Jackson County jail involved in this litigation is located in downtown Pascagoula, Mississippi. For the most part, it occupied the top floor of the four-story Jackson County courthouse. The building stands on one corner of a busy intersection, and there is little unused space on the courthouse lot. A church is situated across the street and a number of small businesses are located in the immediate vicinity. The courthouse and jail, constructed of concrete and steel, were completed in 1949. Presumably, the jail was built atop the courthouse for security reasons, since the sheriff’s office, the docket room, and the radio center are all located on the first floor. On the first floor there is also one cell, which, until it was recently designated as the cell for the two kitchen trusties, was used as a “holding cell”. The kitchen and the sheriff’s apartment are located on the third floor. The jail occupies the entire fourth floor and can be reached either by stairs or by elevator. The north half of the jail is comprised of two “bull pens” and two maximum security cells. The east bull pen contains five six-bunk cells and a day room; the west, three six-bunk cells and a day room. A narrow, enclosed safety vestibule connects each cell with the day room in each bull pen. The two maximum security cells formerly were cells within one bull pen but are now isolated from that bull pen; each cell contains three bunks. A corridor some three feet wide separates the cells and the bull pens from the walls of the jail and is used for inspection and visitation. The two halves of the jail are separated by a hallway about six feet in width. Four “line cells” and a large maximum security cell occupy the southeast quarter of the jail and are separated from the walls by a narrow corridor, just as the bull pen cells are. Yet another corridor separates these five cells from the rooms in the southwest quarter of the jail. These rooms include the trusty room (which contains two bunks and has been used at times for attorney-client consultation), storage rooms, the elevator shaft and vestibule, and two “padded cells”. An exhibit admitted at trial indicated that between September 26, 1973, and January 28, 1977 (3V4 years), a total of 8,580 persons, 6,864 of whom were pretrial detainees, spent some time in the jail. That same exhibit indicated that the average length of detention of those awaiting trial was 28 days. Other testimony indicated that the average stay was 28 days. If correct, this would mean that, on average, the jail contained nearly 200 prisoners every day throughout that period. These figures are obviously in error and cannot be credited. It would be more accurate to say that in forty months 8,580 persons spent some time in the jail; that some of these stayed for only a brief time (as when bond was immediately furnished); that the overall average length of stay was probably less than ten days; and that the average pretrial detainee who was unable or unwilling to post bond may have stayed in the jail for 28 days, or more. The record does not disclose how many prisoners fell into this group. The citizens and public officials of Jackson County have not allowed the crowded conditions of the jail to go without notice or remedy. As early as 1970 or 1971, the Board of Supervisors began planning the construction of a new jail. They understood that the present location atop the courthouse in downtown Pascagoula was inadequate. The county owned some land away from the downtown area which would be ideal for a new jail, leaving plenty of space for expansion, but the Supervisors needed additional funds for a new jail. Accordingly, they proposed a bond issue in the amount of $800,000, and the voters approved that bond issue. Thus, nearly three years before this suit was initiated, and nearly two years before Chief Judge Ready of the Northern District of Mississippi first held many of the conditions at Parchman to be unconstitutional, citizens and public officials in Jackson County recognized the problems and set in motion the machinery which would correct them. The Board of Supervisors decided that the most pressing need was for a new juvenile detention facility. At that time, juveniles were held in the county jail, and all public officials agreed that arrangement was undesirable. With the support of civic leaders, the Board of Supervisors earmarked half of the $800,000 bond issue for the juvenile facility and then obtained matching funds from the federal government. Shortly after Sheriff Diamond took office in 1972, the county started the actual construction work on the juvenile facility and completed the building in 1975. Since then, the county has detained juveniles in the jail only if the Youth Court certifies them for treatment as adult offenders. The Board of Supervisors then focused their energies on a new jail. In order to obtain federal funding, the Board had to run the gauntlet of a veritable maze of red tape, not the least of which was the requirement for an extensive study, which eventually cost the county $26,000. The architect who designed the building testified to the extensive discussions and coordination which took place and of the active participation and constructive suggestions of the county officials. The architect thoroughly described the new facility and placed particular emphasis on pre-stressed concrete construction, which entails considerable cost savings through the mass production of modular cells of identical design. According to him, the new economical design has vast possibilities as more governmental entities move to upgrade and modernize jails and prisons. The new jail, located on a 9.5 acre plot of land valued at $150,000, will have 79 one-bunk cells, each of which will have at least 80 square feet of living space. In addition, each prisoner will have access to a day room. The eight cells designated for women open to a common day room and are physically separated from the cells designated for men. There are two four-cell maximum security units and eight medium security cells, half of which are four-cell and half five-cell. There are four padded cells and three holding cells, as well as a drunk tank, which can hold up to twenty people on a temporary basis. The twenty minimum security cells open to a large day room, and the minimum security prisoners will use community shower and toilet facilities similar to those commonly found in military barracks and college dormitories (except for the specially designed equipment). The jail will have a large kitchen facility, office space for the jailers, and a combination booking and radio control room for the sheriff’s department. In addition, a large visiting area will have individual booths to insure privacy. If the facility proves inadequate to handle the county’s prisoners, the one-story jail is designed for easy, rapid expansion. Additional pods and modular cells can be readily put into position. In addition to the juvenile detention center and the new jail, the county has voluntarily undertaken several other significant programs to alleviate the crowded conditions in the present jail. Several years ago, Sheriff Diamond convinced the local judges to begin a work release program for Jackson County prisoners. That program emphasized vocational education. There has been a substantial increase in the percentage of prisoners released on bond rather than held for trial. Most recently, Jackson County instituted the first restitution center in the State. This program, which will allow county prisoners sentenced to Parch-man to make restitution to their victims in lieu of serving time in the penitentiary, began July 1, 1977, with the active assistance and support of the Mississippi Department of Corrections. These are the basic facts surrounding efforts in Jackson County to treat prisoners in a lawful manner. With this background, we proceed to the merits of this appeal. THE DISPOSITION OF THIS CASE BY THE DISTRICT COURT At the conclusion of the proceedings below, the District Judge issued a memorandum containing his findings of fact and conclusions of law. He denied relief on most of the plaintiffs’ claims, but issued an injunction which required the defendants to complete the new jail before September 15, 1978, to cease receiving “persons charged with misdemeanors by any municipalities”, to post a list of prisoner rights drafted by the court, and to prevent any prisoner from sleeping on a mattress on the floor, either of his own volition or because of the crowded conditions in the jail. These findings of fact are, of course, to be reviewed under the mandate of Rule ,52, Federal Rules of Civil Procedure. They are not to be set aside unless clearly erroneous. As this rule has continuously been construed, the trial court’s findings of fact may be denominated clearly erroneous only when “the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766; Ealy v. Littlejohn, 5 Cir., 1978, 569 F.2d 219, 229 n. 30. The major legal grounds for relief are founded on 42 U.S.C. § 1983 and a pendent state claim for damages. The federal statute protects all persons from “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws”, if those deprivations are caused by persons who are acting under color of state law. Pendent claims exist by force of state law and the federal courts may entertain them in the interest of judicial economy. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Miller v. Carson, 5 Cir., 1977, 563 F.2d 757, 760-62. With nothing more, the mere violation of state law by a state official is not a violation of a federal right, and the federal courts would lack jurisdiction to entertain such a claim. If, however, under color of state law, someone violates a “specific constitutional guarantee”, then 42 U.S.C. § 1983 becomes applicable. Paul v. Davis, 424 U.S. 693, 700, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). At this stage of the litigation, plaintiffs seriously allege violations of only the First, Sixth, Eighth, and Fourteenth Amendments. Segregated Facilities Except where “the necessities of prison security and discipline” require otherwise, racial segregation within prisons is unconstitutional, Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). The trial judge found as a fact that “prisoners are not assigned to cells on the basis of race and the Jackson County jail is integrated, both in cells and in the bull pen areas”. This finding certainly is not clearly erroneous with respect to the line cells, since a number of prisoners and officials testified that the line cells were integrated. We are left with the “firm and definite impression”, however, that the judge was mistaken with respect to the two bull pens. Many prisoners testified that they were incarcerated in a bull pen which was either all-white or all-black. Although the bull pens were occasionally referred to in the testimony of prisoners and officials as “east” or “west”, these respective bull pens were most often referred to as “white” and “black”. Indeed, Plaintiffs’ Exhibit 61, the floor plan of the jail supplied by the defendants in response to interrogatories, clearly denominated the large bull pen as “white” and the small bull pen as “colored”. When these bull pens deviated from the pattern of segregation, that deviation was only temporary. We therefore conclude that according to the evidence the bull pens were unconstitutionally segregated along racial lines. The defendants contend that they were not responsible for this racial segregation because each new inmate was given the freedom to choose which bull pen he wished to occupy. Ordinarily, prison officials assign prisoners to specific cells as the result of some reasonable classification system, and it appears that the officials of the Jackson County jail did assign prisoners to the line cells, although the propriety of their classification system was challenged in this case. In the inherently coercive setting of a jail, it is evident to us that the withdrawal of decision-making by the public officials for only part of the jail amounts to impermissible racial segregation of prisoners. See Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). On remand, the District Court should enjoin the defendants from operating a jail segregated along racial lines. This, however, should not be a problem since the new jail is now open for single cell occupancy. Space Standards for Penitentiary Inmates Space standards for penitentiaries were extensively considered and decided in Gates v. Collier, 390 F.Supp. 482, 486, affirmed, 548 F.2d 1241 (50 sq. ft. per convict at Parchman); Williams v. Edwards, 5 Cir., 1977, 547 F.2d 1206, 1215 (80 sq. ft. at Louisiana penitentiary remanded for reconsideration). See, also, Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, 288, reversed in part as to proper parties to the litigation, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (Alabama prison system), in which it was said that there is no constitutional requirement that prisoners be housed in individual cells; 60 sq. ft. requirement per prisoner remanded for further consideration. Space for Jail Inmates In Miller v. Carson, 5 Cir., 1977, 563 F.2d 741, we had before us the Jacksonville, Florida jail. Conditions there were exceedingly worse than those prevailing in Jackson County, exacerbated by a customary prisoner load generally 100 in excess of design capacity. The situation was described as “shoulder-to-shoulder housing”, 563 F.2d at 745. The district court directed a return to “designed capacity”, but we noted that “designed capacity” is a “tool”, not the sine qua non, for determining constitutional capacity, 563 F.2d at 752, n. 18. We did not undertake to lay down any per se “square foot per prisoner” rule as to constitutional standards for prisoner space in local jails. Outdoor Exercise Our cases have never held that convicted prisoners have a constitutional right to outdoor exercise. See, e. g., Miller v. Carson, 563 F.2d at 751. As to pretrial detainees, Miller held that they may not be continuously incarcerated in an institution designed to punish, where outdoor recreation is reasonably possible. This does not reach so far as to hold that every pretrial detainee in every jail is automatically entitled as a matter of constitutional right to outdoor exercise. In Miller ninety per cent of the prisoners in the overstuffed Jacksonville jail never left their jail blocks. The conditions in the jail were “uncivilized”. We simply said, 563 F.2d at 741, that the district court did not abuse its discretion in 'ordering jail authorities “to work toward” a program of daily outdoor recreation for pretrial detainees who had been continuously incarcerated. In Smith v. Sullivan, 5 Cir., 1977, 553 F.2d 373, 379, Texas state law required outdoor exercise for one hour a day, three days a week, if weather and facilities permit it. We noted that the requirements promulgated by the district court required no more than that already commanded by state law. Despite the foregoing exceptions, efforts have sometimes succeeded at the trial level to enforce outdoor recreational facilities for pretrial detainees in all jails as a routine constitutional right. The argument has been, and is, that outdoor exercise is essential to health. The constitutional criterion in matters of physical health is that the jailer must not be deliberately indifferent to the serious needs of his prisoners, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Conceding that it may be that protracted confinement without outdoor exercise at some point may become seriously detrimental to health, there was no evidence from qualified physicians on this facet of the Jackson County jail case. If at some point outdoor exercise becomes a serious health need, an unsettled question in the absence of appropriate medical proof, it seems odd that the courts have uniformly held that convicts, serving much longer terms than those ordinarily encountered in jail, have no constitutional right to outdoor exercise. We do not here hold that no pretrial detainee is ever entitled to outdoor exercise. We do hold that the evidence in the case now under appeal wholly failed to make out a need of constitutional proportions. We further point out that a jailer may provide indoor space for a reasonable amount of physical exercise for pretrial detainees who desire it. This may well be a satisfactory alternative to outdoor facilities where there are none available, but we express no opinion on the subject in the absence of satisfactory medical proof specifi- . cally addressing the issue. Visitation Rights While penal institutions allow visitation rights in some form or another, convicted criminals do not have a constitutional right to such visitation, except for their legal counsel, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1334; Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, 291. Pretrial detainees do have a constitutional right to reasonable visitation, although this does not necessarily include contact visitation, Miller v. Carson, supra, 563 F.2d 748, 749. Detainee visitation must yield, where necessary, to the need to preserve institutional security, such as the prevention of weapon or contraband smuggling. In the absence of such overpowering considerations as a threat to jail security, if a jailer were to refuse to allow the ordinary detainee any visitation privileges, or if he were to lay down arbitrary or capricious limitations on the privilege, such conduct would be unconstitutional, Procunier v. Martinez, 416 U.S. 396, 411, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The true rule is that the jailer must decide how many hours a week visits are feasible, considering the physical limitations of the jail and the reasonable internal and external needs of the facility, see Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Visitation privileges for ordinary detainees should be set forth in written rules in order that the detainees may understand them and so that the courts may have a definite basis for review in the face of claimed arbitrariness and eapriciousness. We note in passing that the First Circuit has held that a pretrial detainee does not have a constitutional right to contact visitation, Feeley v. Sampson, 1 Cir., 1978, 570 F.2d 364, 373. The Second Circuit, over dissent, has held that all pretrial detainees except those classified as presenting an intolerable security risk are entitled to contact visits [kiss his wife, shake hands with a friend, fondle a child], Marcera v. Chinlund, 2 Cir., 1979, 595 F.2d 1231. Basic Needs — Fundamental Interests Where Physical Facilities Are Not a Factor Medical Attention The Supreme Court has recently held that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . proscribed by the Eighth Amendment”. And, such indifference may be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed”, Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Under Mississippi law, all persons held in county jails have a right to medical attention, Miss.Code Ann. § 47-1-57 (1972). Prison Food The Constitution requires only that prisoners be furnished reasonably adequate food, Newman v. Alabama, supra. In this context, the courts have not specifically defined “reasonably adequate”, perhaps because those of normal experience and average intelligence need no court to tell them when that situation does not exist. As a matter of fact, Mississippi law requires that prisoners shall have “daily wholesome and sufficient food and drink”, Miss.Code Ann. § 19-25-71 (1972). Prison Mail The recent case of Guajardo v. Estelle, 5 Cir., 1978, 580 F.2d 748, is dispositive of plaintiffs’ claims of a right to uneensored general correspondence. Although that case dealt solely with the rights of convicts, the holdings are also applicable to pretrial detainees because in either instance the interests at stake stem variously from the First Amendment and from the “fundamental constitutional right of access to the courts”, see Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and not from the Eighth Amendment. Under Guajardo, prison officials may constitutionally censor incoming and outgoing general correspondence. No numerical limitations may be placed upon prisoner correspondence, but jail officials may employ a “negative mail list” to eliminate any prisoner correspondence with those on the outside who affirmatively indicate that they do not wish to receive correspondence from a particular prisoner. Officials may not require the prior approval of the names of individuals with whom prisoners may correspond. Finally, letters which concern plans for violation of prison rules or which contain a graphic presentation of sexual behavior that is in violation of the law may be withheld. Outgoing mail to be licensed attorneys, courts, and court officials must be sent unopened, and incoming mail from such sources may be opened only in the presence of the inmate recipient if considered necessary to determine authenticity or to inspect for contraband. Prisoners may be required to submit the names of attorneys reasonably in advance of proposed mailings so that whether the named attorney is licensed may be ascertained. Prisoners have the same general rights as to media mail. The sending of packages to inmates may be prohibited. Classification of Convicts The Constitution does not expressly require states to develop prisoner classification plans for the incarceration of Convicted criminals. In the past, we have approved district court orders that require state prisons to develop classification systems, but those orders were not predicated on an Eighth Amendment right to classification. They were used as remedies employed to eradicate abuses that were themselves unconstitutional. For example, when prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners, and the level of violence becomes so high as to constitute cruel and unusual punishment under the Eighth Amendment, federal courts have broad authority to eradicate such conditions and may order the development of a classification system as part of the remedy. See, e. g., Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, 291, reversed in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1334. The record in this case is insufficient to support mandatory classification for convicts under the Eighth Amendment. Nor does the due process clause grant the convicts housed at the Jackson County jail any right to a classification system. A convict may claim the protection of the due process clause only if the state deprives him of a property or liberty interest that is a legal entitlement under state or federal law, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court said that prison classification is a matter delegated by Congress to the discretion of federal prison officials, and thus implicates “no legitimate statutory or constitutional entitlement sufficient to invoke due process”, 429 U.S. at 88 n. 9, 97 S.Ct. at 279. In the state prison context, convicts have no due process right to any classification system beyond that mandated by state law. We have often emphasized that classification is a matter relegated to the discretion of prison officials. See, e. g., Newman v. State of Alabama, supra, 559 F.2d 283, 287; Jones v. United States, 5 Cir., 1976, 534 F.2d 53, cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976). In the absence of some entitlement having its genesis in state law, no due process right to classification exists for convicted state prisoners. There is a recently enacted Mississippi statute providing for classification of prisoners, Miss.Code Ann. § 47-5-103 (1978 Supp.). The statute provides that offenders committed to the custody of the state correctional system must be classified as to “work duties,- living quarters, educational, vocational or other rehabilitation programs, and privileges to be accorded the offender while in custody of the department”. Section 47-5-110 of the Mississippi Code makes it clear that state offenders are committed to the jurisdiction of the state corrections department, not to a particular institution or facility, and it authorizes transfers of state prisoners back and forth between local facilities and the state’s maximum security facility at Parchman. The statutory scheme obviously does not entitle any given inmate to any specific classification; it does not create any entitlements to particular work duties, living quarters or vocational training. A prisoner is simply entitled to be told in advance what his situation will be as to such things as work duties, living quarters and rehabilitative programs, and the statute provides that only the classification committee may permanently alter his status. No prisoner can complain under the statute if he is assigned to a local facility rather than Parchman, and the statute obviously does not dictate that any particular treatment be accorded prisoners once they are classified for housing at local facilities. In sum, the convicted state prisoners at the Jackson County jail, as against local officiáis, have no due process right to a classification system within the jail. If the state penal authorities were parties to this litigation we would consider that aspect of the case. Classification of Pretrial Detainees The due process rights of pretrial detainees as to some form of simple classification presents a different analysis. Those in jail awaiting trial have not been convicted of an offense and have not lost the constitutionally guaranteed liberty rights that pertain in the absence of a conviction. Some are detained for short periods pending a preliminary hearing. Others have had their hearings and it has been determined that there is probable cause to believe that they are guilty of violations of the law. Not having been convictéd, pretrial detainees are all on the same footing and, in the absence of some special circumstance, are entitled to no different treatment than that accorded to others in the same class. For example, however, as Judge Campbell wrote in Feeley v. Sampson, 1 Cir., 1978, 570 F.2d 364, 371, “A detainee with a notorious record as a bank robber may not be entitled to as lenient security conditions as someone serving a misdemeanor sentence”. In Miller v. Carson, supra, we held that an incarcerated pretrial detainee has a limited liberty interest to the extent of avoiding unnecessary or unprotected contact with prisoners known to be violent, or disturbed or infected with a contagious disease. Of course, the security of the jail, the interdiction of weapons and contraband, and the like, are paramount considerations in any jail operation. As to pretrial detainees, it seems perfectly obvious, especially in small jails with a limited number of prisoners, that the concept of classification for prisoners should be confined to a very limited spectrum. Consequently, we hold that the Constitution does not require elaborate prisoner classification at the jail level. The Supreme Court has held that even at the penitentiary level prisoner classification is confided to the sound discretion of prison officials, under state law. It is only when the officials fail to protect prisoners from homosexual attacks, personal violence, or unnecessary contact with the contagiously ill that the federal courts are warranted in entering the classification picture, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332. We should think it would ordinarily be sufficient if jailers in county jails would promulgate, maintain, and adhere to a policy which protects pretrial detainees from violent, disturbed, and contagiously ill individuals as far as reasonably possible. Such a policy may be cast in terms of classification. PROTECTION and SECURITY The plaintiffs claimed that they had been denied their Eighth Amendment right to protection and security, and some of the damage claims rest upon these grounds. In this connection the Fourth Circuit has said: While occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment . confinement in a prison where violence and terror reign is actionable. A prisoner has a right . . . to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates . Woodhous v. Commonwealth of Virginia, 4 Cir., 1973, 487 F.2d 889, 890. This was reaffirmed in Hite v. Leeke, 4 Cir., 1977, 564 F.2d 670, wherein it was said that a prisoner must prove “constant threats” or “frequent physical abuse”. In a case in which a prisoner alleged that officials failed to protect him from attacks and then denied him medical aid for six days, the Third Circuit has said: To establish a constitutional violation, the indifference must be deliberate and the actions intentional. Moreover, not every injury or illness invokes the constitutional protection — only those that are “serious” have that effect. Neglect, carelessness or malpractice is more properly the subject of a tort action in the state courts. Hampton v. Holmesburg Prison Officials, 3 Cir., 1976, 546 F.2d 1077, 1081. In Little v. Walker, 7 Cir., 1977, 552 F.2d 193, where an inmate charged that he had been repeatedly subjected to assaults, in deprivation of his rights under the Eighth Amendment, the Seventh Circuit held that: It has been both a settled and first principle of the Eighth Amendment . that penal measures are constitutionally repugnant if they “are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’ or [if they] ‘involve the unnecessary and wanton infliction of pain.’ ” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251. Violent attacks and sexual assaults by inmates upon the plaintiff while in protective segregation are manifestly “inconsistent with contemporary standards of decency.” Id. “Deliberate indifference” to these happenings “constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Id. Moreover, in the highly publicized landmark case of Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971), it was held that under the Eighth Amendment prisoners are entitled to protection from the assaults of other prisoners. ... On remand, if Little can show that he was deliberately deprived of constitutional rights while confined in cell-house B, he will be entitled to damages. 552 F.2d at 197, 198 (citations omitted). Disciplinary Proceedings in the Jail The only discipline for infraction of the rules at the old jail was a loss of visitation privileges, not to exceed two weeks for any one violation. As a practical matter this may not be a very strong deterrent for one who is determined to violate the rules, but in the present state of the jurisprudence it is one of the very few left available to the jail authorities. As to convicted prisoners it has no constitutional underpinnings. As to pretrial detainees, the matter can be handled very readily by according the inmate minimum procedural due process, that is, inform him of the violation with which he stands charged and give him an opportunity informally to demonstrate that he is not guilty! After all, the prime purpose of a jail is to hold persons committed there according to law. “Apprehension is insufficient if there is no detention”, Bryan v. Jones, supra, (Brown, Chief Judge, concurring), 530 F.2d at 1217. The Constitution does not require that jailers perform this duty in the midst of violence, disorder, and infractions of prison rules designed for the orderly operation of the institution. In Wolff v. McDonnell, 418 U.S. 539, at 572, n. 19, 94 S.Ct. 2963, at 2982, 41 L.Ed.2d 935, the Supreme Court said that it was not suggesting “that the procedures required . for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges”. To hold that the temporary loss of visitation privileges requires a full-blown due process hearing would place the Due Process Clause “astride the day-to-day functioning of state prisons and involve the judiciary in issues and discretionary decisions that are not the business of federal judges”, Meachum v. Fano, supra. See, also, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Our Disposition of the Findings of the District Court, Applying the Clearly Erroneous Standard. The evidence did not establish that the physical facilities at the old jail were “unfit for human habitation under any modern concept of decency”. There was no necessity for injunctive relief as to adequate fire safety, heating, cooling, ventilation, food, prison mail, or medical attention for the inmates of the old Jackson County jail. The plaintiffs’ most credible allegation that the facilities are unconstitutional revolves around the sanitation of the jail. Because unsanitary conditions bear such a potential for the spread of disease and a consequent adverse impact on the health of prisoners, the testimony on this particular point has been carefully scrutinized. Again, however, it must be concluded that the evidence supports the fact findings of the judge and that those findings of fact are not clearly erroneous. The prisoners are responsible for cleaning their own cells, and the trusties assume responsibility when a prisoner is either unable or unwilling to clean up after himself. There was no evidence whatsoever of rodents in the jail. The jail minimizes the cockroach problem (which is common to all buildings on the Mississippi Gulf Coast) through a contract with a private company to spray the jail for insects once a month. Adequate disinfectants are available for the inmates and trusties. The county provides a blanket, mattress, mattress cover, and sheet for every prisoner. There was some testimony that these items were frequently filthy and unsanitary, but the- county proved that it cleaned the blankets and sheets regularly and replaced the bedding items when necessary. The county purchased 718 new mattresses in the 18 months prior to trial, 150 blankets each year, and six dozen sheets every two to three months. The trusties operated the washer and dryer and made reasonable efforts to cope with the demands of the inmates for clean clothes and bedding. The trusties also regulated the water temperature for showers, and there was no evidence of systematic abuse of this function, although some prisoners did complain that tire water was not always heated to their exact liking. The kitchen itself was more than adequately sanitary, as the plaintiffs admit, and we cannot say that such facts as the possible reuse of plastic spoons, after washing, amount to a violation of the Constitution. In short, the physical facilities and the maintenance of those facilities do not violate the Constitution, and no relief is warranted on this record. The crowded condition in the old jail was another problem. All the parties, as well as the trial judge, agree that the old jail was crowded. We need not belabor this point because of the post-argument affidavits of responsible Jackson County officials that hereafter prisoners and detainees will be housed in single cells in the new jail, now open. The old jail will be used only for detention of persons waiting to post bail, and the like. Nevertheless, to avoid a repetition of past problems at the old jail future overcrowding should be prohibited. Unlike the situation in Miller, supra, where outdoor facilities were reasonably available without large expenditures of funds, there are no such facilities in the vicinity of the old Jackson County jail. Unless the courts were to order the erection of a large barbed wire fence around or near the county courthouse in downtown Pascagoula, or to order that prisoners be bussed to some out-of-the way location on a daily basis, neither of which we are prepared to do, there is no reasonably available facility for outdoor exercise. Although we have approved lower court orders to provide outdoor recreation, see, e. g., Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, 291, we have done so in those cases only “because such facilities may play an important role in extirpating the effects of the [unconstitutional] conditions which indisputably prevailed” in those prisons at the time that the District Judges fashioned the necessary remedies. Id. Where, as here, we cannot say that the totality of the circumstances in this jail amount to cruel and unusual punishment, we cannot hold that the lack of outdoor exercise alone constitutes such unconstitutional punishment. Injunctive relief as to outdoor exercise at the old jail is unwarranted. As a matter of fact, such facilities are in place at the new jail. Under the circumstances prevailing in the old jail, leaving aside the issue of whether it is, or is not, constitutionally mandated, we do not find it practical to order that the visitation privileges for detainees be contact visitation. The jail has extremely limited facilities for visitation. Official visiting hours are limited to a brief period on Sundays, but there was testimony that jail officials often allowed visitation at other than regular hours. Children under 18 are not allowed to visit the fourth floor, but jailers do take prisoners down to the first floor to visit their children, if requested. There has been a serious problem with visitors smuggling contraband into the jail, despite the near lack of contact visitation and frequent, unannounced shakedowns of the cell areas. We have already alluded to the prison riot of 1976. In the face of these facts, we believe that the jail officials have demonstrated that the denial of contact visitation to pretrial detainees is indeed linked to the demands of institutional security. The promulgation and distribution of reasonable non-contact visitation rules at the old jail will adequately relieve the visitation problems at that facility. The Constitution does not expressly require states to develop prisoner classification plans for the incarceration of convicted criminals. Although we have approved district court orders that require state prisons to develop classification systems, those orders have not been predicated on an Eighth Amendment right to a classification system, but have been remedies employed to eradicate abuses that are otherwise unconstitutional. For example, when prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners, and the level of violence becomes so high as to constitute cruel and unusual punishment under the Eighth Amendment, federal courts have broad authority to eradicate such conditions and may order the development of a classification system as part of the remedy. See, e. g., Newman v. State of Alabama, 5 Cir., 1977, 559 F.2d 283, 291, rev’d in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1334. The policies, in the nature of classification, set forth, ante (p. 1015), should adequately protect the visitation privileges of prisoners in the old jail. On the matter of security and protection, we do not believe that the plaintiffs have established the required “deliberate indifference” on the part of the Jackson County jail officials. The jail officials have taken every possible precaution to guard against the introduction of weapons or objects from which weapons may be fashioned in the jail. They do not allow packages to be sent to the inmates. They carefully inspect every prisoner and his clothing when he is incarcerated. They conduct frequent, unannounced shakedown inspections of every cell. They do not permit contact visitation, except in certain carefully controlled circumstances. The present sheriff has kept an officer on the floor of the jail at all times to guard against inmate violence. The sheriff’s deputies are immediately available if reinforcements are needed. All of the allegations of injuries, save one, assert injuries at the hands of other prisoners and not at the hands of any jail officials. The sole exception was the allegation of Lowell Dean Mitchell, a white inmate who claimed that he was sprayed in the face with mace by a deputy when he refused to move to the black bull pen. There was no corroborating testimony, and Mitchell could not, or would not, identify the deputy who allegedly sprayed him. There was no allegation by Mitchell of a lingering injury, and the trial judge did not credit his testimony. In none of the other nine cases did the defendants actually participate in the alleged assaults, and there is no evidence that they knew of the potential for violence and, acting with that knowledge, abetted the assault through inaction. One trusty, Andrew Thomas, testified that there was never a fight or disturbance while he was a prisoner or trusty. On the other occasions when there were outbreaks of violence, the jail officials invariably responded immediately and took injured prisoners to the hospital when necessary. After minor scuffles, they generally tried to separate the combatants into different cells to ease the problems. In short, this record does not establish a pattern and practice of deliberate indifference to the security and protection of the prisoners, and it is therefore not necessary for us to order injunctive relief or to evaluate the qualified good faith immunity defense of the officials with respect to any-damage claims that might be properly before us. The plaintiffs also charged that the use of trusties in the Jackson County jail was unconstitutional. The record indicates that the trusties were used for relatively minor functions, such as helping to serve food and wash dishes, and that they did not have access to keys to the inmates’ cells. Since 1976, a jailer has been on the jail floor at all times, and the trusties’ duties have been reduced accordingly. The utilization of inmates as trusties in this jail has been a far cry from the utilization of trusties condemned in Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff’d, 5 Cir., 1974, 501 F.2d 1291; or Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff’d 8 Cir. 1971, 442 F.2d 304. The trial judge’s findings of fac