Marvin Jones, on His Own Behalf and on Behalf of Those Similarly Situated v. Fred R. Diamond, Etc.

JONES, on his own behalf and Marvin situated, similarly behalf of those

Plaintiffs-Appellants, al., DIAMOND, etc., et

Fred R.

Defendants-Appellees.

No. 78-1289. Appeals,

United States Court

Fifth Circuit.

April to maintain federal

sary constitutional rights, supervise federal courts do not sit to Fano, Meachum v. prisons, state 427 U.S. L.Ed.2d 451 prisons, in some the situation Unlike County jail conditions in the cannot accurately be described “uncivilized” or inhumane”.1 as “barbaric and Miami, Fla., Lipman, David M. John L.

Walker, Jackson, Miss., Hinds, Lennox S. State of The case is unusual Nat’l Lawyers, Conference Black Har- prior precedent, violation Mississippi, in lem, Y., plaintiffs-appellants. N. by directing temporize has seen fit to county be held in felons many convicted Brown, Raymond Pascagoula, Miss., L. slowly, ever jails penitentiary while defendants-appellees. up to constitution- brought slowly, being so COLEMAN, RUBIN, Before CLARK and Hence, particular al in this standards. Judges. Circuit with the federal setting dealing we are felons, rights of convicted constitutional COLEMAN, Judge. Circuit misdemeanants, pretrial de- convicted This is a 42 challenge U.S.C. tainees, jail, peni- not in a county held in a nearly every conceivable facet of the Jack- tentiary. County jail Pascagoula, son Mississippi, This recognition necessitates Con- in use at the time the lawsuit was filed and stitutional distinctions between convicts the case was tried. pretrial detainees. argument oral us, Since before jail designed new single .prisoners Convicted cell entitled to occupancy, protection Amendment, approximately square Eighth feet cell, punish which unusual opened. prohibits has been cruel and uncontroverted post argument affidavits, ment. we have been as jail” sured that the “old will hereafter inbe “[Cjonfinement pre conditions limited use to detain individuals for short detainee, analyzed trial it as a due must

periods of time while are in process process deprivation rather than as cruel and bail, of supplying and the like. Since punishment”, unusual and a detainee is en old is not to be closed and could be titled to relief conditions amount functions, returned to its former we shall Process, to a Due McMahon v. violation of appeal decide this are, on the merits. We Beard, Cir., 1978, however, entitled to take into consideration the existence of new yet Smith v. Sulli been con- Pretrial detainees have not van, Cir., 1977, 5 553 F.2d 373. We must victed of offense and are accorded the remember, also, except where presumption brought neces- when of innocence Carson, 1977, 741, penitentiary 1. In system Miller v. 5 Cir. 563 F.2d bama as “barbaric and in- 743, we described the conditions in the Duval humane”. County, jail Eighty Florida as “uncivilized”. Newman, totality In we held that when the per pretrial five cent of the inmates were de- penal in institution violates the conditions a awaiting tainees. The others were convicts Constitution, are not trial court’s remedies assignment penal routine to state or federal specific limited to constitutional the redress shocking institutions. The conditions rights. detail, are set forth in 563 F.2d 744-746. The the facts in trial record shows that on purpose by repeat- No useful would be served appeal neither a Newman instant we have ing them here. case, although, nor will be seen a Miller Locke, 318, Pugh F.Supp. (M.D.Ala.1976), In v. 406 instances, 331 post, totality in of circum- some part a 'd in sub nom. Newman v. stances, consti- ff infractions of there were some Alabama, 1977, 283, State of 5 Cir. 559 F.2d rights. tutional District Court described conditions in the Ala- 1004

trial, they Judge the fact are expressly but remains that Gee would have overruled being probable held cause to believe that Whirl than to have rather it “materialize are, fact, in guilty of a from time . in present violation time to . . Judges, criminal statutes. form but eviscerated”. Three in- cluding original author of the Whirl There was another of no circumstance opinion, opinion that the majority said cast 1976, importance. December, small In Whirl to become a “adrift derelict in drugs in the Sheriff found law”, See, also, 1219. v. 530 F.2d Miller that, jail. put an effort he stop a Jones, 1976, Cir., 534 F.2d Secondly, 5 1178. policy searching a all inaugurated simple negligence enough pierce visitors, policy expressly approved immunity case, Bogard official in a 1983 § Alabama, Cir., 1977, Newman v. 5 559 F.2d Cook, supra. v. 283, prisoners with a responded 291. riot, they very nearly in which wrecked the The Class Action jail. necessary taxpay- repairs cost the After skirmishing, considerable which $30,000. ers over detail, brevity the interest of we need not pretrial has It been said that see, Diamond, Cir., 1975, v. g., e. Jones 5 519 detainee should not have to suffer condi 1090, F.2d the District Court certified any more restrictive than those neces tions plaintiff which included class trial, sary presence to ensure his Duran who were incarcerated persons all 999; Cir., 1976, 998, Elrod, 7 v. 542 F.2d or complaint, filing of the the time of Malcolm, Cir., 333, 2 Rhem v. 507 F.2d confined now, will be in the future are 337; Carson, Cir., Miller v. County jail, either to serve in the Jackson fact, F.2d 750. It is an ineluctable . . awaiting . sentence a sentence however, jail, subject that the detainee inis to all the institutional that are necessities party attacked the appeal, On neither brought play. practi thus into same “[T]he proof The trial concerned certification. cal judicial reasons that counsel restraint pretrial both detainees convicts. Since second-guessing correctional officials dic parties clearly the trial court re- tates the au second-guessing restraint in- garded including the class as all jails”, who Feeley Sampson, thorities run v. mates, This, do likewise. we shall Cir., 1978, 570 F.2d 371. course, all black within includes subclasses, the certified and the claims Furthermore, prisoner for a to es properly racial discrimination here. prima tablish a facie 1983 case cruel § punishment prove unusual he must individual be Jones’ claims are not prison authorities acted with deliberate opinion fore us. In memorandum dated or callous indifference to his constitutional August 12, Judge District stated rights. simple Proof of negligence is not that “it would be futile and a waste of time pierce enough to official immunity, Bogard pass upon to consider the class action Cook, Cir., 1978, v. Fielder completion until after the of the construc Bosshard, Cir., 1979, County jail next of the new Jackson Kern, Cir., 1968, determination, Whirl year”. Having made that denied, cert. proceeded adjudicate he Jones’ individual (1969), L.Ed.2d was a 1983 action for them was claims and found that each of false imprisonment wherein it was held that merit and should dis “wholly without good neither faith nor non-negligence later, could prejudice”. days missed with Eleven exculpate a Rights sheriff from Civil Act Judgment” a was entered in which “Partial false liability imprisonment. Whirl has application permanent injunc Jones’ for a First, been undercut on points. both damages as to with tion and for was “dismissed good defense, faith Bryan reasonable prejudice”. over ac Jurisdiction the class Jones, Cir., 1976, banc). (en F.2d 1210 and ruling issue was retained reserved 1978, Cir., 987, Judgment was the

for a later date. then en- canvassed deci on and noted that when a tered Jones’ claims. sions in this area certified, properly the case class has judgment. In appeal Jones did not this tried, representative’s the class individ and stead, plaintiff a of sought writ mandamus to meritless or ual claims determined Judge from this to order the to con Court moot, is automatical representative the 3, sider the class issues. On November appeal an on the prosecuting ly barred from 1977, writ, panel a of this Court issued the case, In this 996. class issues. Id. at Approx but did not consider Jones’ claims. certainly of the class and Jones is a member later, imately Judge one month the District homogeneity of has retained a sufficient a forty eight page issued memorandum litigation of the every interests at moment findings stating his of and fact conclusions representative. as qualify adequate to an granting partial injunc of law. A decision Iowa, 403 n. Sosna v. See entered, plain tive relief was and also the 553, 559, 42 L.Ed.2d 95 S.Ct. moved, tiffs then Rule the 24 of Federal be Therefore, properly are the class issues Procedure, Appellate Rules of to in appeal fore us.3 pauperis. Judge granted forma the appeal, motion for the to class but denied plaintiffs damages, In the addition to

the motion as to Jones because his claims declaratory sought sweeping injunctive and prejudice had been Au dismissed on First, the alleged relief and violations gust 23, February 1977. On Jones Ninth, Thirteenth, Fourth, Sixth, Eighth, moved this the appeal Court for leave to the and Fourteenth Amendments to Consti- August pauperis. 23 order in forma That U.S.C., tution, cognizable 1983. under Thus, May motion was denied on 1978. By complaint, the an amendment Jones’s individual claims not now before plaintiffs pendent state law claim. added us.2 plaintiffs pursue appeal On their assertions of violations of numerous constitutional have Since Jones’ individual claims rights, grouped which into dismissed, finally adjudicated thus been and (1) right following categories: to recrea- properly represent can he continue to tion, overcrowding, (3) right adequate (2) class? in the Our recent en banc decision care, visitation, Greenville, (5) City (4) case of utilization of Satterwhite v. medical certified, Judge ap- all but the 2. We consider the trusties District denial of the motion re- peal pauperis certify in forma as a that determination so Plaintiffs fused to defendant class. August ap- appealed ruling. order final and was that have not pealable 54(b) identity under Rules problem Rule Federal Another which concerns event, judgment of Civil Procedure. parties of the to this United lawsuit involves prior panel binding on us. is Fidelity Guaranty Company, States surety company which executed bond 3. The defendants sher- are the Jackson indemnify which would the sheriff event iff, jailer, county Board the members of the April 24, damages. he is found liable for On Supervisors, in those and their successors 1974, plaintiffs complaint moved to amend the respective offices. was Sheriff Fred Diamond Fidelity By to add as a an order defendant. January January from John 1972 to 1976. May 10, Judge granted dated District Ledbetter con- then became the and has Sheriff motion, but he in that same order dismissed the Roy present in tinued Tootle office time. supervisors permit and refused to from the suit Diamond, jailer was the under defendant proceed as a class action. Plaintiffs suit to present jailer. R. Jack Broadus is Lum appealed and were victorious in this Court. Cumbest, May, Khayat, J. W. T. Ed C. Diamond, See Jones 5 Cir. Roberts have been members of the Board Fidelity been added 1090. We noted had Supervisors throughout litigation. this H. Olin Id. at 1094 n. the suit a defendant. replaced Davis died office 1975 and was However, reveals McElroy, an record examination Ed who is still a member process glaring discrepancy. was ever No Board. process Fidelity. possible It served on complaint also named as a defendant partici- Fidelity, served it individually . and as “Andrew Thomas pated nothing litigation, rec- trustys but representative of at the Jack- all other ord so. Apparently, serves to this was County, Mississippi indicate that son Jail.” plaintiffs sought class of have a defendant 1006 counties, state,

trusties, responsi- (6) (7) right not the have sole segregation, racial to diet, adequate (8) right an to uncensored erection, op- maintenance and bility for the communication, (9) right disciplinary to fair jails. eration of these (10) proceedings, proper sys- classification in Mississippi pro has been State tem, (inmate (11) right protection securi- longed, litigation extensive in the federal facilities, (13) ty), (12) right and physical penitentiary.4 courts over conditions at its They press access to the courts. also prisoners Those who cannot be received at pendent state law claims. county jails confined in Parchman are now state,5 has, legislature across the and the

THE PENAL SYSTEM MISSISSIPPI know, we do not longer for how much shift 1900, shortly Mississippi after Since part operation ed a substantial and operated prison system a centralized at pénitentiary system costs of its to the 82 recently all Parchman and until felons sen- counties, Supervisors, whose Boards of prison tenced to were confined at county governing taxing authority, place. prison Parchman is not a walled but farm, prison occupying a state powerless thousands of to alter the statutes which con acres. operations justice trol the criminal system. Astonishingly enough recently county jail, generally

Each has a used to enacted state statute authorizes convicted persons awaiting hold misdemeanants persons part serve all or a of their sen awaiting trial or those convicts the outcome appeal of an county jail, provided non-bailable offenses. The tences in a history ty lengthy litigation juveniles); 4. The of that in order to detain must Ballard v. entirety Taylor, read in F.Supp. its to be (N.D.Miss.1973) (a understood. See 358 409 ct Collier, F.Supp. (N.D.Miss.1972), Gates v. 349 881 against damages ion sheriff for caused 'd, 1974, (holding 5 Cir. 501 F.2d 1291 beating provide aff and failure to medical care many practices and conditions at Parchman limitations); Tuttle, barred statute of Cole v. Collier, unconstitutional); F.Supp. Gates v. 390 (N.D.Miss. 1973), F.Supp. appeal 366 missed, 1252 dis (N.D.Miss.1975) (ordering 482 submission of a 1976, (suit against 5 Cir. 540 F.2d 206 comprehensive plan implement adequate supervisors members of board of of Panola overcrowding); medical service and to reduce remedy jail conditions dismissed for Collier, F.Supp. (N.D.Miss. Gates v. 407 1117 upon failure to state a claim could which relief 1975) (denying plaintiffs’ motion to accelerate granted); Leonard Probation v. Miss. State compliance timetable); Collier, Gates v. 423 Bd., F.Supp. (N.D.Miss. and Parole 699 373 F.Supp. (N.D.Miss.1976), 'd, 1977, 732 5 Cir. aff 1975, 820, 1974), rev’d, 5 509 F.2d cert. Cir. (upholding 548 F.2d 1241 the issuance of a denied, 998, 428, 46 L.Ed.2d 423 U.S. 96 S.Ct. temporary restraining requiring order officials (1975) (no application 373 retroactive of Gates camps to close certain and insure that each Collier, 1974, 1291); v. 5 501 F.2d Steven Cir. sq. living space). inmate has 50 ft. of The issue Reed, (N.D.Miss.1975), F.Supp. son v. aff'd, 391 1375 attorneys’ fees alone has bounced back and 1976, 1207, denied, 5 Cir. 530 F.2d cert. forth between the district court and this Court. 365, 429 U.S. 97 50 L.Ed.2d 315 S.Ct. Cook, Collier, F.Supp. (N.D.Miss.1973), See Gates v. (1976); Bogard (5 d, 586 F.2d 399 Cir. a 5 Cir. ff' 1978) (action remanded, damages upon based stab vacated and 5 Cir. 522 F.2d 81 (en banc), remand, bings shooting (N.D.Miss.1976), on 70 F.R.D. 341 which occurred at Parch part part, man); 'd Morgan Sproat, F.Supp. and rev’d in 5 Cir. af f 1977, 559 F.2d 241. (S.D.Miss.1977) (challenge at to conditions past years, School, Oakley Training In the ten the two federal district an institution for delin Mississippi, appeal, courts in quent boys). and this Court on concerning have resolved numerous suits 5. Of the 43 held in the Jackson Coun- Mississippi’s prison, jails, ju conditions ty jail 14, 1977, February 21 were convicts centers, venile detention in addition to the accept that Parchman officials refused to be- litigation. See, g., Gates e. Roberts v. Wil overcrowding facility. cause of the at that On liams, F.Supp. (N.D.Miss.1969), 'd aff prisoners, June there were 74 57 of part, denied, 5 Cir. cert. whom should have been confined at Parchman. (1971); 92 S.Ct. 30 L.Ed.2d 110 Therefore, popula- on those dates the inmate Aycock, F.Supp. (N.D. Coleman v. County jail tion of the Jackson would have 1969) (Greenville desegregate Miss. ordered to 17, respectively, been 22 but jail); defi- Hopkins, F.Supp. Patterson v. (N.D.Miss.1972), 'd, ciencies Parchman. 5 Cir. 481 F.2d 640 aff (ordering modifications to Coun- the Coahoma lights proper, when necessary certifies to the and and suf- department of corrections space is no availa- county sheriff that there bedding ficient and clean for all penitentiary, state ble for the convict . . . .” 19-25-71. also id. Id. See § (1978 Supp.). Ann. 47-5-112 Miss.Code § 47-1-51. The statutes further authorize § designed as a Apparently, this statute is supervisors board of choose one of measure, temporary it was scheduled to feeding prison- three alternative schemes expire February of its own terms ers, contracting namely, with a local caterer system, this kind of the over- Under restaurant, allowing simply or sheriff exported to the crowding at Parchman was purchase necessary supplies food and county jails support, and those who have to county, granting or the name of the maintain, jails have been operate those expenses. sheriff an allowance for such Id. powerless reject the system. Any prisoner may supply 19-25-73. him- § statutory Mississippi, an intricate bedding, self with food and but these items erection, maintenance, regulates scheme inspected by must first be the sheriff. Id. county jails. Broad and administration of Lastly 19-25-71. the sheriff must also § oversight responsibility for all facets of the keep separate rooms for the sexes and shall county jail lodged county is with the board permit “communication” any between supervisors. Ann. 19-3- See Miss.Code § prisoners of different sexes. Id. See also required, The board is at least id. 47-1-23. § state and quarterly, examine into the “[to] county The state and the board health regard safety, condition of the to its guidance department provide of health sufficiency, pris- and accommodation of the oners, assistance to the sheriff in the areas of and from time to time take such legal may measures as best tend to secure health and The state board of sanitation. sickness, prisoners against escape, oversight responsibility health has broad infection, jail and have the cleansed.” Id. functions, a myriad public including pris- They levy 19-5-1. are authorized to tax- § ons. Id. 41-3-15. The directives § es, 3—41, appropriate id. and to funds § 19— state board of health are to be carried out county treasury, from the id. 19-3-59. § department by county either health or a janitors They may employ and other assist- officer, may county health as be determined required. Finally, ants as Id. 19-7—13. § by county, upon based its needs. each See remodeling, enlarging, needs re- through 55. generally id. 41-3-37 §§ pairing, charges state law the Board of statutory places scheme addi- state Supervisors duty with the to erect a new tional duties on the shoulders of local offi- existing jail. or renovate the Id. convicted, prisoner cials. each shall Once however, requirement, 19—7—11.This can § expense comfortably clothed at the approve be nullified if the voters refuse to county. prisoner Id. 47-1-47. If a § necessary bond issues. attention, needs medical the sheriff is charged sheriff is the local official then, charged prisoner to examine the responsibility day-to-day oper- with the physi- necessary, if he thinks it to call in jail. charge ation of the He has prisoner. cian to attend the Id. 47-1-57. § prisoners. duty and of He has a Alternatively, pris- take the the sheriff protect violence, both from “mob from ex- hospital, oner .to the nearest and the otherwise, injuries attacks mobs or county will if the penses be borne trespasses and from intruders.” Id prisoner 47-1-59. Fur- indigent. is Id. § keep jail in a 19-25-69. He shall maltreatment, thermore, including will- “clean condition” and must and comfortable food, shelter, clothing, ful failure to furnish jail. prosecute persons all who deface the attention, facilities, bathing or medical Generally, jailer also the Id. sheriff is so, punishable and, duty when to do jailer, daily under provide “as shall whole- drink, 47-1-27. some and sufficient food and fire and a misdemeanor. Id. § pendent Finally, contemplate the statutes some some state claims tagging judicial along. oversight measure of citizen and jails. county

the At each term of the cir- court, grand jury must make a cuit the JAIL THE COUNTY JACKSON personal inspection of the condition of the jail The involved in County Jackson this jail adequacy safe-keeping and its for the litigation Pascagou located in is downtown prisoners. grand jury inquire the The must la, Mississippi. part, the most For it occu into the accommodation and health of the pied top four-story the of the floor prisoners report findings and to the County building courthouse. The stands on 13-5-55, court. Id. 47-1-31. Once a §§ intersection, busy a one corner of and there jail becomes insufficient for the accommo- space is little unused on the courthouse lot. prisoners, judiciary dation of additional the A church is situated across the street a and obligation under an to order the removal number of small businesses are located jail of new of another coun- vicinity. the immediate The courthouse ty, kept to be until appropriate there the steel, constructed of concrete and (1978 court tries the accused. Id. 47-3-1 § completed Presumably, were in 1949. the addition, Supp.). upon petition jail atop was built the courthouse for secur attorney general, state a district attor- reasons, ity office, since the sheriff’s ney, or an private person, interested room, docket center are all and the radio state may, through circuit courts the writ located on the first floor. On the first floor mandamus, public a order officer “to do cell, which, there is it also one until was performance or not to do an act the or recently designated as the cell for the two specially enjoins omission of which the law trusties, kitchen a “holding was used as duty resulting office, trust, as a from an cell”. apart The kitchen and the sheriff’s station, where plain, there is not a ade- 6ment are located on the third floor. quate, speedy remedy ordinary jail fourth floor occupies The the entire

course of law.” Id. 11-41—1. by by either stairs or and can be reached Mississippi fact that up the points This jail half of the is com elevator. The north policy statutorily articulated a does have and two maxi prised pens” of two “bull for the treatment humane which commands pen The east bull con security cells. mum provisions jail prisoners. Detailed county room; day cells and a tains five six-bunk policy have been of this for the enforcement day a west, cells and three six-bunk officials hereinabove described. State narrow, safety enclosed vestibule A room.7 invoke private persons interested day room cell with connects each enforcement of courts for the aid of the security two maximum pen. The each bull infractions, may sue prisoner a policy. For pen within one bull formerly cells were cells courts. in the state damages pen; that bull isolated from but are now A corridor contains three bunks.8 each cell however, is that general practice, cells and separates the three feet wide some the federal resort aggrieved prisoners jail the walls of pens from bull courts, jurisdiction only in which can have visitation. inspection and is used for rights involving a denial those cases separated the federal Constitution. The two halves of the guaranteed us, by hallway we now have before a about six feet in width. Four is the case Such family 12'9", feet, square lived in that 6. Diamond and his Sheriff 16' X or 204 room measures apartment during equipped his term office. Sheriff metal tables af- with several and is Ledbetter, incumbent, shower, floor, lavatory, has chosen and a fixed to the occupy it. toilet. pen 12'9", 7. Each bull cell measures 7T" X approximately feet, square slightly larger equipped These two cells are than and is lavatory, pen approximately with a day bull cells and have shower and toilet. Each large security many prisoners “line cells”9 and a maximum disclose how fell into this group. occupy quarter cell10 the southeast separated and are from walls The citizens public officials of Jack corridor, just pen narrow as the bull cells son have not allowed the crowded separates are. Yet another corridor these conditions of the go to without notice or five cells from the rooms in the southwest remedy. early As as 1970 or quarter jail. These rooms include Supervisors Board of began planning the (which trusty room contains two bunks jail. construction of a new They under and has been used at attorney- times for stood present location atop the consultation), rooms, storage client the ele courthouse in Pascagoula downtown vestibule, vator shaft and “padded and two inadequate. county owned some land cells”.11 away from the downtown area which would jail, ideal for a leaving new plenty of An exhibit admitted at trial indicated space expansion, but the Supervisors

that September between and Jan needed additional funds for jail. a new Ac uary (3V4 8,580 years), a total of cordingly, they proposed a bond issue in the 6,864 persons, pretrial of whom were de $800,000, amount of and the ap voters tainees, spent jail. some time in the That proved that Thus, bond issue.13 nearly same exhibit average indicated that the years three before initiated, this suit was length of detention of awaiting those trial and nearly years two before Judge Chief days. was 28 testimony Other indicated Ready of the Northern District Mississip average stay that the days. was 28 If pi first many held of the conditions at correct, that, this would mean on average, unconstitutional, Parchman to be citizens jail the nearly prisoners contained every public officials in rec day throughout period.12 fig These ognized problems the and set in motion the obviously ures are in error and cannot be machinery which would correct them. credited. It would be more accurate say 8,580 in forty months persons spent Supervisors Board of decided that some jail; time in the that some of pressing these most juve need was for a new stayed a (as brief time when bond nile facility. time, detention juve At that immediately furnished); was that the over niles were county jail, held in the and all average length stay all probably was public less agreed arrangement officials days; than ten average and that the pre was support undesirable.14 With the of civ trial detainee who unwilling leaders, was unable or Supervisors ic the Board ear post may bond stayed jail $800,000 have in the for marked half of the bond issue for days, or more. juvenile The record facility does not and then obtained square space. feet of Each 13. The exact date cell also has a of that bond issue does not lavatory, record, appear shower and toilet. but there seems to be a possibility newspaper, distinct the local bunks, lavatory, 9. Each line cell contains four Press, Mississippi played key a shower, toilet, They and metal desk. measure mobilizing public opinion. paper role in That 12'6", approximately square 9'3" X feet. 1971, complete ran a series of articles in conditions, photographs, jail on the which were bunks, table, 10. This cell contains two a a lava- generally portrayed deplorable. Shortly af- tory, shower, and a toilet. We estimate that January ter Sheriff Diamond took office in square space. it has about 150 feet of jail improved enormously both in appearance operation, newspaper and the padded 6', square 11. Each cell is 6'6" X or 39 ran a “before and after” series to demonstrate feet. Neither cell has a bunk or other progress which had been made. furnishings, save a small hole in the middle of apparently designed the floor which important One most backers of the serve as a urinal. proposal juvenile to construct detention Watts, facility Judge first was Youth Court = 240,240 days prison- 12. 8580 X 28 facility whose name the new now bears. — = 240,240 er-days. days prisoner-days prisoners. college military barracks and dormitories govern- the federal from matching funds designed equip- Diamond took Shortly (except specially after for the Sheriff ment. county ment). large started the actual kitchen will have office in juvenile facility jailers, facility, space work on office for the and a construction building in 1975. completed booking Since and radio control room combination juveniles then, addition, detained county In department. for the sheriff’s only if the Youth Court certifies large visiting will have individual area treatment as adult offenders. them for facility privacy. booths to insure If the proves county’s handle the inadequate to Supervisors then focused The Board designed prisoners, one-story jail. In energies on a new order expansion. pods Additional easy, rapid funding, federal the Board had to obtain readily put posi- modular cells can be into of a veritable maze of red gauntlet run the tion. require which was the tape, not the least of study, which eventu ment for an extensive juvenile cen- addition to the detention $26,000. county The architect ally cost county has volun- ter and the new building testified to the designed who significant other tarily undertaken several extensive discussions coordination programs to alleviate the crowded condi- place partici which took and of the active jail. years ago, present tions in the Several pation suggestions and constructive of the judges Diamond convinced the local Sheriff county thoroughly officials. The architect program a begin work release for Jack- facility placed partic described the new County prisoners. program son That em- emphasis pre-stressed ular concrete con phasized vocational education. There has struction, which entails considerable cost percent- been a substantial increase in the savings through production mass age prisoners released on bond rather design. modular cells of identical Accord recently, than held for trial. Most him, ing design the new economical has County cen- instituted the first restitution possibilities governmental vast as more en program, will ter in the This which State. jails upgrade tities move to and modernize county prisoners allow sentenced to Parch- prisons.15 man to their victims in to make restitution serving penitentiary, lieu of time in the plot The new located on 9.5 acre 1, 1977, began July with the active assist- $150,000, land valued at will have 79 one- support Mississippi Depart- ance cells, bunk each of which will have at least ment of Corrections. addition, square living space. 80 feet of prisoner day each will have access to a surrounding These are the basic facts ef- eight designated room. The cells for wom- forts in Jackson to treat open day en to a common room and are background, in a lawful manner. With this physically separated desig- from the cells proceed appeal. we merits of this nated for men. There are two four-cell security eight maximum units and medium THE BY DISPOSITION OF CASE THIS cells, security half of which are four-cell THE DISTRICT COURT padded and half five-cell. There are four cells, holding cells proceedings and three as well as a At the conclusion of the be- tank, low, up twenty drunk which can hold Judge the District issued a memoran- people temporary twenty on a basis. The containing findings dum his of fact and security open large day minimum cells to a law. relief on conclusions of He denied room, claims, security prisoners and the minimum plaintiffs’ most of the but issued an community injunction required will use shower and toilet facili- which defendants to commonly similar complete September ties to those found the new before Rand, (architect designs 15. Cf. A. The Fountainhead Howard Roark modular low-income housing savings). at substantial cost 1978,16 receiving “persons to cease charged by munities secured the Constitution and laws”, any municipalities”, with by deprivations by misdemeanors those are caused persons acting who are under color of post prisoner rights by a list of drafted state law. court,17 Pendent claims exist force of state prevent any prisoner and to law and the federal courts entertain sleeping floor, from aon mattress on the judicial them in the economy. interest of either of his own volition because of the Gibbs, See United Mine Workers v. 383 U.S. jail. crowded conditions in the (1966); S.Ct. 16 L.Ed.2d 218 are, course, findings These of fact Carson, Cir., 1977, Miller to be reviewed under the mandate of Rule more, 760-62. nothing With the mere vio- ,52, Federal Rules of They Civil Procedure. lation of state law a state official is not are not to be set clearly aside unless errone a violation right, federal and the feder- ous. As this rule has continuously been al jurisdiction courts would lack to enter- construed, the trial court’s findings of fact If, however, tain such a claim. under color may be clearly denominated only erroneous law, of state someone “specific violates a reviewing when “the court on the entire guarantee”, constitutional then 42 U.S.C. evidence is left definite and firm Davis, Paul v. applicable. 1983 becomes § conviction that a mistake has been commit 693, 700, 47 L.Ed.2d Gyp United v. United ted.” States States Co., sum 364, 395, 333 U.S. 68 S.Ct. At stage litigation, plaintiffs 746, 766; Ealy Littlejohn, Cir., 92 L.Ed. seriously allege First, violations of n. 30. Sixth, Eighth, and Fourteenth Amend- ments. major legal grounds for re lief are founded on U.S.C. and a Segregated Facilities pendent state damages. claim for The fed protects eral statute all persons from “the Except where “the necessities of deprivation of any rights, privileges, prison or im- security discipline” require oth- orally argued 18, 16. This right case was “Prisoners October have the to uncensored com- 1978, and counsel subject for defendants informed right this. munications to the of the Sheriff jail Court at that time that the jailer new had not intercept any communication completed. informed, been ever, We are now how- necessary safety, security deemed to his of training that the new after extensive jail keeping prisoners. or the safe of the jail personnel, required by regula- federal major discipline may No be administered with- received, grant tions when a federal is is now in disciplinary proceedings, out which shall be use. prisoner conducted in accordance with fairness No contempt however, effort has been process; made to initiate and due a trial is not con- proceedings to enforce the District in- templated. Court’s hearing required No is for minor junctive validity deadline. We do not reach the discipline limiting restricting such as visita- of that order. tion, privileges canteen like. and the protection “Prisoners are entitled to reasonable complete 17. The text of that list is as follows: against prisoners other and the Sheriff and PRISONER RIGHTS jailer may reassign prisoners shift or to avoid adequate proper .“Prisoners are entitled to trouble. medical care and attention at all times. allowed, may “Prisoners are not not be right “Prisoners have the to reasonable visita- required, sleep on the floor at time. family, their members of relatives and pretrial “Prisoners who are detainees shall not attorneys at such times and under such circum- placed persons, except be with convicted where stances and conditions as the Sheriff shall im- space requirements, safety prisoner, pose. peace jail security and order of the of the trusties, “Prisoners serve as but shall not jail require it. assigned any duties other than custodial and “Prisoners have a claim for violation of the kitchen assistance. rights same, right above shall have the to take segregated “Prisoners shall not be of race and on the basis counsel, through legal and have their case requests assignment for transfer or adjudged by considered and by prisoners United States to other cells which are not based Magistrate. on sound reason other than race will be denied. 6, proper “BY ORDER OF THE COURT: December “Prisoners are entitled to a sanitary diet under 1977” conditions at mealtimes. 1012

erwise, only part for amounts to segregation prisons within is officials racial unconstitutional, Beto, 319, v. 405 segregation prisone Cruz U.S. impermissible racial 321, 1079, 1081, Erickson, 385, 92 31 L.Ed.2d 263 S.Ct. rs.18 Hunter v. 393 See U.S. 333, (1972); Washington, Lee v. 390 U.S. 557, (1969); 89 21 L.Ed.2d 616 Reit S.Ct. (1968). 19 L.Ed.2d 1212 S.Ct. Mulkey, man v. 387 U.S. S.Ct. judge “prison- The trial found as a fact that 18 L.Ed.2d 830 assigned cells on ers are not the basis of remand, On the District Court should en- County jail race and the Jackson inte- join operating the defendants from grated, pen both in cells and in the bull This, segregated along racial lines. how- finding certainly clearly areas”. This is not ever, problem since the new should not be cells, respect erroneous with to the line open single occupancy. cell is now prisoners since a number of and officials integrated. that the line cells were testified Penitentiary Space Inmates Standards We are left with the “firm and definite Space penitentiaries standards for were however, impression”, judge was extensively considered and decided in Gates respect pens. mistaken with to the two bull 482, 486, affirmed, Collier, F.Supp. Many prisoners they testified that were in- (50 sq. per 548 F.2d 1241 ft. convict at pen carcerated in a bull which was either Parchman); Edwards, Cir., Williams v. Although all-white or all-black. the bull (80 sq. ft. at pens occasionally were referred to in the penitentiary Louisiana remanded for recon- testimony prisoners and officials as also, sideration). See, Newman v. State “west”, respective pens “east” or these bull Alabama, Cir., 1977, were most often referred to as “white” and part proper parties reversed in toas Indeed, “black”. Plaintiffs’ Exhibit litigation, 438 plan jail supplied by floor the defend- (1978) (Alabama prison L.Ed.2d 1114 sys- response ants in interrogatories, clearly tem), in which it was said that there is no large pen denominated bull as “white” requirement constitutional pen and the small bull as “colored”. When cells; sq. require- housed individual ft. pens pattern these bull deviated from the per prisoner ment remanded for further segregation, only tempo- that deviation was consideration. rary. We according therefore conclude that pens to the evidence the bull were unconsti-

tutionally segregated along Space racial Jail Inmates lines. Carson, Cir., 1977, In Miller defendants contend that 741, Jacksonville, we had before us the

were responsible segrega for this racial jail. were exceed- Florida Conditions there given because each new inmate was ingly prevailing worse than those in Jack- freedom to pen choose which bull he wished County, by customary son exacerbated occupy. to Ordinarily, prison officials as prisoner generally load 100 in excess of sign prisoners specific to cells as the result design capacity. The situation was describ- of some system, reasonable classification housing”, ed as appears and it “shoulder-to-shoulder the officials of the F.2d at County jail assign prisoners 745. The district court directed a did cells, “designed capacity”, the line return to but we noted although propriety “tool”, system challenged “designed capacity” their classification is a not the non, inherently setting qua determining this case. In the coercive sine constitutional 752, jail, capacity, of a it is to us that with n. We evident 563 F.2d at 18. did not decision-making by public drawal of lay any per “square undertake se down long required April Mississippi 1968. 18. The State of racial 1968 Miss. Laws ch. 552. segregation county municipal jails, Washington, Supreme in the decided Lee v. Court penitentiary. as well as in the state Miss.Code 88 S.Ct. 19 L.Ed.2d 3374-135, 4259, 7913, 7965, Ann. March §§ 1968. requirements all These were deleted as point at some If outdoor exercise becomes per prisoner” foot rule as to constitutional need, jails. prisoner space question in local serious health an unsettled standards for appropriate proof, absence of medical uniformly it seems odd that the courts have Outdoor Exercise convicts, serving longer held that much have never held that convicted Our cases ordinarily terms than those encountered in prisoners right have a constitutional to out- right have no constitutional to outdoor Carson, See, g., door exercise. e. Miller v. We here hold that exercise. do not no 563 F.2d at 751. pretrial detainee is ever entitled to outdoor detainees, pretrial As to Miller held that exercise. We do hold evidence they may continuously not be incarcerated appeal wholly failed to the case now under punish, where designed in an institution propor- make out a need of constitutional reasonably possible. outdoor recreation is tions. reach so far as to hold that This does not jailer point may We further out that a every jail every pretrial detainee in is auto- provide space indoor for a reasonable matically a matter of entitled as constitu- physical pretrial amount of exercise for de- right tional to outdoor exercise. In Miller tainees who it. desire This well be a ninety per cent of the in the over- satisfactory alternative to outdoor facilities jail never stuffed Jacksonville left their available, where there are none but we ex- blocks. The conditions in the were “un- press opinion subject no on the in the ab- said, simply civilized”. We 563 F.2d satisfactory proof specifi- sence of medical the district court did not abuse its . cally addressing the issue. 'ordering discretion in authorities “to program daily work toward” a outdoor Rights Visitation pretrial recreation for who detainees had penal While institutions allow visi continuously incarcerated. another, rights tation in some form or con Sullivan, Cir., 1977, Smith F.2d victed criminals do not have a constitutional required Texas state law outdoor visitation, right except to such for their day, days exercise for one hour a three counsel, McCray Sullivan, Cir., legal week, permit if weather and facilities it. 1332, 1334; Newman v. State requirements We noted that the promulgat- Alabama, Cir., 1977, ed required district court no more already than that commanded state law. Pretrial detainees do have a consti visitation, right tutional to reasonable al Despite foregoing excep though necessarily this does not include tions, efforts have sometimes succeeded at visitation, Carson, supra, contact Miller v. the trial level to enforce outdoor recreation 749. Detainee visitation must jails al all pretrial facilities for detainees in yield, necessary, pre where need right. argu as a routine constitutional security, pre serve institutional such as the been, is, ment has that outdoor exercise weapon smug vention of or contraband is essential to health. The constitutional gling. criterion in health is physical matters of jailer deliberately overpow that must not be In the absence of such pris jail his a threat ering indifferent to the serious needs of considerations as to se 97, 104, oners, Gamble, curity, jailer 429 if a were to refuse to allow the Estelle v. U.S. (1976). ordinary privileges, 97 251 Con detainee visitation S.Ct. 50 L.Ed.2d arbitrary ceding may protracted lay that it that con or if he were to down be privilege, exercise at some on the such capricious finement without outdoor limitations unconstitutional, point seriously would Procuni may become detrimental conduct be 396, 411, 412, health, Martinez, quali er 416 94 there was no evidence from v. U.S. (1974). 40 224 The true physicians fied this facet of the Jackson S.Ct. L.Ed.2d many jailer rule that the must decide how case. is 1014 feasible, experience cause those of normal and aver- considering a week visits are

hours no physical age intelligence limitations and the court to tell them need external needs of when does exist. As a reasonable internal and that situation Procunier, Mississippi law facility, fact, requires see Pell 417 v. U.S. matter of (1974). “daily 94 prisoners S.Ct. 41 L.Ed.2d 495 wholesome and shall have drink”, ordinary detainees privileges Visitation sufficient Miss.Code Ann. food and in (1972). should be set forth in written rules order 19-25-71 § may the detainees understand them may and so that the have a definite courts Mail Prison for review the face of claimed basis in Guajardo The recent case of v. Es eapriciousness. arbitrariness and telle, Cir., 1978, 748, dispositive F.2d is We passing note in that the First Circuit plaintiffs’ right claims of uneensored pretrial has held that a detainee does not general correspondence. Although that right a constitutional to contact visita- have convicts, solely rights case dealt with tion, Cir., 1978, Feeley Sampson, v. holdings applicable pretrial are also Circuit, The Second over detainees because in either instance the in dissent, pretrial has held that all detainees variously terests at stake stem from the except presenting those classified as an in- First from the Amendment and “fundamen security tolerable risk are entitled to con- tal of access right constitutional to the wife, tact visits his shake hands with a [kiss Smith, courts”, see Bounds v. U.S. friend, Chinlund, child], fondle a Marcera v. (1977), S.Ct. and not L.Ed.2d Cir., 1979, 595 F.2d 1231. Eighth from the Amendment. prison Guajardo, Under officials Basic Needs —Fundamental Interests may constitutionally incoming censor Physical Where Facilities Are outgoing correspondence. general No nu Not a Factor may placed merical upon pris limitations be Medical Attention correspondence, oner but may officials Supreme recently Court held employ “negative mail list” to eliminate “deliberate indifference to serious any prisoner correspondence those on medical needs prisoners constitutes the affirmatively the outside who indicate that ‘unnecessary and infliction of pain’ wanton correspondence do not wish to receive proscribed . Eighth Amend- particular prisoner. may from a Officials And, ment”. may such indifference be approval not require prior of the names by prison “manifested doctors their re- prisoners may whom individuals with sponse prisoner’s by prison needs or letters correspond. Finally, which concern guards in intentionally denying delaying prison plans for rules or which violation of access to intentionally medical care or inter- graphic presentation contain a of sexual fering prescribed”, with the once treatment may behavior that of the law violation Gamble, 97, 104, Estelle be withheld. (1976). 50 L.Ed.2d 251 Outgoing mail be licensed attor law, Mississippi persons Under all courts, neys, officials must and court be in county jails held a right to medical incoming unopened, sent mail from attention, Miss.Code Ann. 47-1-57 opened only may such sources be presence recipient of the inmate con

Prison Food authenticity necessary sidered to determine inspect or to requires only for contraband. Prisoners Constitution submit reasonably required names of adequate furnished food, Alabama, supra. attorneys reasonably pro Newman advance of context, posed mailings so whether the specifically courts have not named adequate”, attorney may be “reasonably perhaps defined be- is licensed ascertained.

1015 proc invoke due sufficient to entitlement general rights as have the same Prisoners 9, at 279. In ess”, at n. 97 429 88 S.Ct. U.S. to media mail. context, have no convicts prison the state to inmates packages sending sys right any to classification process due may prohibited. by state law. that mandated beyond tem that classifica emphasized often We have of Convicts Classification relegated to the discretion is a matter does not ex The Constitution See, v. g., e. Newman prison officials. develop prisoner require states to pressly 283, Alabama, supra, 559 F.2d State for the incarceration of plans classification Cir., 1976, States, 534 5 Jones v. United past, we have In Convicted criminals. 978, denied, 97 53, S.Ct. cert. U.S. require orders that approved district court 487, (1976). In the absence 50 L.Ed.2d 586 develop sys classification prisons state having genesis its of some entitlement predicated tems, were not but those orders law, right to classifica process due state no right to classifi Eighth an Amendment prisoners. state tion exists for convicted em as remedies They were used cation. were them abuses that to eradicate ployed recently enacted Missis is a There example, when For unconstitutional. selves classification of providing for sippi statute or failed to control officials have prison (1978 Ann. 47-5-103 prisoners, Miss.Code endanger physi who separate prisoners that offenders provides The statute Supp.). level and the prisoners, of other safety cal cor custody of the state committed to high to constitute so as of violence becomes as to must be classified system rectional under the punishment and unusual cruel educational, duties,- living quarters, “work Amendment, federal courts Eighth programs, other rehabilitation vocational or such conditions authority to eradicate broad accorded offender privileges development of a classi may order the department”. custody while in Sec See, remedy. part as system fication makes Mississippi Code tion 47-5-110 of Alabama, Cir., g., e. Newman v. State of are committed that state offenders it clear part sub reversed the state corrections jurisdiction 781, 98 Pugh, v. 438 U.S. nom. Alabama institution particular to a department, not (1978); McCray 57 L.Ed.2d S.Ct. transfers of and it authorizes facility, 1332, 1334. Sullivan, Cir., 1975, 509 F.2d v. forth between local prisoners back and state insufficient The record in this case is security maximum facilities and state’s for con mandatory classification support statutory facility Parchman. Amendment. Eighth victs under the any given obviously not entitle does scheme classification; it does any specific clause process the due inmate to Nor does particular at the Jackson not create entitlements grant the convicts housed duties, vocational living quarters or to a classification work County jail any right simply entitled to prisoner A may protection training. claim the system. A convict will be what his situation only if the state be told in advance process of the due clause duties, living work things as liberty inter as to such deprives property him of a programs, and and rehabilitative legal quarters entitlement under state est that is a Fano, the classifica law, provides the statute Meachum v. U.S. or federal permanently alter his 49 L.Ed.2d tion committee S.Ct. complain can under prisoner No (1976); Montanye Haymes, status. facility local assigned to a In statute if he is 49 L.Ed.2d S.Ct. Parchman, and the statute than Moody Daggett, 429 U.S. rather ob any particular viously not dictate (1976), Supreme Court does 50 L.Ed.2d 236 once is a matter treatment be accorded prison said that classification at local facilities. housing discretion of are classified for delegated by Congress sum, prisoners at state officials, implicates thus the convicted prison federal local offi- against statutory or constitutional legitimate “no ciáis, process right penitentiary no due to classifi- has held even at the level system jail. prisoner cation within the If the state classification is confided to the officials, penal parties litiga- prison authorities were to this sound discretion of under state aspect tion we would consider that law. It is when officials fail protect prisoners from homosexual at- case. tacks, violence, personal unnecessary con- tact with contagiously ill that the feder- Classification of Pretrial Detainees entering al courts are warranted in process rights pretrial The due Sullivan, picture, McCray classification simple detainees as to form of some classifi Cir., 1975, F.2d 1332. presents analysis. cation a different Those ordinarily We think it would should awaiting trial have not been convict jailers county jails sufficient if ed would of an offense and have not lost the maintain, promulgate, poli- and adhere to a constitutionally guaranteed liberty rights cy protects pretrial which pertain in the detainees from absence of a conviction. violent, disturbed, contagiously and ill periods Some are detained indi- pend for short viduals as ing reasonably possible. far as preliminary hearing. Such Others have had policy may be cast in hearings it terms of classifica- has been determined that there is tion. probable cause to believe that

they are guilty of violations of the law. PROTECTION SECURITY having convictéd, Not pretrial detain and, ees are all on the same footing plaintiffs claimed that had been circumstance, absence of some special are Eighth right denied their Amendment entitled to no different treatment than that protection security, and some of the accorded to others in the same class. damage upon grounds. claims rest these however, For example, Judge Camp- as In this connection the Fourth Circuit has bell wrote in Feeley Sampson, Cir., said: 570 F.2d “A detainee with a occasional, While isolated attacks notorious may record as a bank robber prisoner one on another not consti- be entitled to as lenient security conditions punishment tute cruel unusual . serving someone a misdemeanor sen- prison confinement in a where violence tence”. reign prisoner and terror is actionable. A right has a . reasonably . . to be Carson,

In Miller v. supra, we held that protected from constant threat of vio- an pretrial incarcerated detainee has a lim- lence and sexual assault his fellow liberty ited interest to the extent of avoid- inmates . ing unnecessary or unprotected contact prisoners violent, with known to be or dis- Woodhous v. Virginia, Commonwealth of turbed or contagious infected with a dis- Cir., 1973, ease. Leeke, This was reaffirmed in Hite v. course, Of the security the Cir., 1977, wherein it was said contraband, interdiction of weapons and prisoner that a prove must “constant like, paramount considerations threats” or “frequent physical abuse”. in any jail operation. prisoner alleged In a case in which a protect officials failed to him from detainees, attacks pretrial

As to it seems and then obvious, denied him medical aid for six perfectly especially jails in small days, the Third Circuit has said: prisoners, a limited number of that the concept of classification for should violation, To establish a constitutional very spectrum. be confined to a limited the indifference must be deliberate and Consequently, Moreover, we hold that the Constitution the actions intentional. require prisoner does not elaborate classifi every injury or illness invokes the consti- cation at Supreme level. The Court protection only tutional those that are — present jurispru- in of the Neglect, but the state “serious” have that effect. prop- malpractice more it is the few left very carelessness dence one of available erly subject jail pris- a tort action As to convicted the of authorities. underpin- state courts. it has no constitutional oners nings. Officials, Hampton Holmesburg v. Prison Cir., 1077, 1976, 546 F.2d 1081. detainees, pretrial the matter As Cir., 1977, Walker, In v. Little very readily by according can be handled 193, charged an that he had where inmate procedural proc the inmate minimum due assaults, subjected to in repeatedly been ess, is, that him of the violation with inform Eighth under deprivation rights of his the give he and charged which stands him an Amendment, the Seventh Circuit held that: opportunity informally to demonstrate that

It first both settled and guilty! he is not principle Eighth of the Amendment . all, prime purpose After the of a constitutionally that are penal measures persons is to committed there ac hold repugnant incompatible if “are cording “Apprehension to law. is insuffi evolving decency ‘the of that standards detention”, no Bryan cient there is v. society,’ progress maturing mark the of a Jones, supra, (Brown, Judge, Chief concur they] unnecessary ‘involve the [if ” at ring), 1217. The Constitution pain.’ v. wanton infliction of Estelle require jailers perform not this does that 102, 285, Gamble, 97, 429 U.S. 97 S.Ct. disorder, violence, duty in of the midst 290, Violent 50 L.Ed.2d 251. attacks designed prison for the infractions of rules upon sexual assaults inmates the In orderly operation of the institution. plaintiff segregation while protective in 539, McDonnell, n. Wolff 418 U.S. at manifestly contem- “inconsistent with 41 L.Ed.2d S.Ct. decency.” porary standards of Id. “De- it Supreme the was not Court said happenings these liberate indifference” to procedures required “that suggesting ‘unnecessary wanton “constitutes . deprivation good for the of time pain’ proscribed by of infliction required imposition would for of also be Moreover, Eighth Amendment.” Id. penalties privileg- lesser such the loss of as publicized the highly landmark case of To of temporary es”. hold loss Sarver, (8th Holt v. Cir. requires a privileges visitation full-blown 1971), Eighth it was held that under the process hearing place Due due would pro- Amendment are entitled to the day-to-day Process “astride Clause prison- from the tection assaults other prisons state and involve the functioning of remand, ers. can ... On if Little judiciary discretionary in issues and deci- deliberately show deprived that he was sions that are not the business of federal rights constitutional while confined Fano, See, judges”, supra. Meachum v. B, he to dam- cell-house will be entitled also, Rodriguez, Preiser ages. L.Ed.2d (citations omitted). 552 F.2d at Findings Proceedings Disposition Jail

Disciplinary Our Court, Clearly Applying District discipline infraction Erroneous Standard. at the old was a of visita rules loss privileges, weeks for The evidence not to exceed two did establish any practical physical matter old were one violation. As a facilities at the strong be a very deterrent “unfit for human habitation under rules, concept decency”.19 one who is determined to violate modern showers, complained cells, leaking Among things, plaintiffs bage other utilization maintenance, cells, housekeeping padded sheets substandard the two mattresses without linen, infestation, gar- trays, inadequate cockroach the accumulation of or bed unclean food necessity injunctive tire always There was no re- water was not heated to adequate safety, lief as to fire heating, liking. cool- their exact The kitchen itself was ventilation, food, mail, ing, prison or medi- adequately sanitary, plain- more than as the admit, cal attention for the inmates of the say old tiffs and we cannot that such jail. possible facts plastic spoons, reuse of washing, after amount to a violation of the plaintiffs’ most credible al Constitution. legation that the facilities are unconstitu short, physical facilities and the tional revolves around sanitation of the maintenance of those facilities do not vio- jail. unsanitary Because conditions bear Constitution, late the and no relief is potential war- spread such a for the of disease ranted on this record. consequent impact and a adverse on the prisoners, testimony health of on this The crowded condition in the old particular point carefully has been scruti jail problem. parties, another All the however, Again, nized. it must be conclud as well judge, agree as the trial that the old ed that supports the evidence the fact find jail was crowded. We need not belabor this ings judge of the and that those findings of point post-argument because of the affida fact are clearly prison erroneous. The responsible vits of officials responsible cleaning ers are for their own that prisoners hereafter and detainees will cells, and the responsibility trusties assume single be housed in cells in the new now prisoner when a is either unable or unwill open. jail The only old will be used ing up to clean after himself. There was no persons waiting bail, detention of post to evidence jail. whatsoever of rodents in the Nevertheless, like. repe to avoid a jail problem minimizes the cockroach past problems jail tition of at the old future (which is buildings common to all on the overcrowding prohibited. should be Mississippi Coast) through Gulf a contract Miller, Unlike the situation in su private company spray jail with a to pra, where outdoor facilities were reason insects once a Adequate month. disinfec ably available large expenditures without tants are available for the inmates and funds, there are no such facilities in the trusties. county provides blanket, vicinity of the old Jackson County jail. Un mattress, cover, mattress and sheet for ev less the courts were to order the erection of ery prisoner. There was some testimony large barbed wire fence around or near that these items frequently filthy were county courthouse in downtown Pasca unsanitary, county proved but the- that it goula, prisoners or to order that be bussed cleaned the blankets and sheets regularly way some daily out-of-the location on a replaced bedding items when neces basis, neither of which we prepared sary. The county purchased 718 new mat do, reasonably there is no facility available prior trial, tresses in the 18 months for outdoor exercise. year, blankets each and six dozen sheets every two to three months. The Although trusties approved we have lower court operated the dryer washer and and made provide recreation, see, orders to outdoor e. reasonable efforts to cope with the g., Alabama, demands Cir., Newman v. State inmates for clean clothes and bed we have done so in ding. regulated The trusties also the water those cases “because such facilities temperature showers, and there was may play no an important role in extirpating evidence systematic abuse of this func the effects condi- [unconstitutional] tion, although some complain did tions which indisputably prevailed” in those lighting, ventilation, inadequate hazards, following fire ous cells would have the amounts of hygienic and lack (in 22; space square materials for both male feet): pen, bull west east prisoners. and female 26; 33; pen, security, bull small maximum line cell, 29; large security, padded maximum According calculations, every cell, to our 8, 9, 10, 11, bunk supra. 39. See notes & occupied, prisoners were in the vari expressly re does not The Constitution Judges that the District at the time

prisons develop prisoner remedies. Id. classifica necessary quire states to fashioned here, Where, say we cannot of convicted plans for the incarceration in this circumstances totality of the approved have dis Although we criminals. punishment, and unusual amount to cruel prisons require state trict court orders the lack of outdoor hold that we cannot systems, those or develop classification such unconstitu- alone constitutes exercise Eighth on an predicated have not been ders punishment. tional system, right Amendment to classification exercise at as to outdoor Injunctive relief employed to eradi but have remedies As a matter of unwarranted. the old unconstitut are otherwise cate abuses that at the new fact, place are in such facilities example, officials prison ional.21 For when jail. separate prisoners to control failed safety of other physical endanger who prevailing circumstances Under the becomes the level of violence prisoners, the issue of jail, leaving aside in the old not, constitutionally is, cruel and unusual high it or is constitute whether so as to practical it mandated, Amendment, not find Eighth we do under the punishment for de privileges that the visitation order authority to erad have broad federal courts jail has The visitation. be contact tainees and order such conditions icate visitation. extremely limited facilities system classification development of a to a brief hours are limited visiting Official See, v. remedy. g., e. Newman part of the testimony there was Sundays, but period on 283, Alabama, Cir., 1977,559 F.2d 5 of State allowed visitation jail officials often v. 291, nom. Alabama part rev’d in sub under regular hours. Children other than 3057, 781, 57 98 S.Ct. Pugh, 438 U.S. floor, the fourth not allowed to visit 18 are Sullivan, McCray v. 5 (1978); L.Ed.2d 1114 down to jailers prisoners do take but 1332, Cir., 1975, 1334. 509 F.2d children, request first floor to visit of classifica- nature policies, The in the problem has been a serious ed. There forth, tion, 1015), should ade- (p. ante set jail, into the contraband smuggling visitors privileges of visitation quately protect the visitation contact the near lack of despite jail. prisoners shakedowns of in the old unannounced frequent, and already alluded to cell areas. We have security pro and matter of theOn face of these 1976. In the prison riot of plaintiffs tection, have we do not believe jail officials facts, that the we believe required vis “deliberate denial of contact that the have established demonstrated is indeed linked Jackson part detainees pretrial itation to on the indifference” security. institutional the demands of have jail The officials County jail officials. guard precaution to every possible taken of rea- and distribution promulgation weapons of or ob introduction against the rules at the visitation non-contact sonable may be fashioned weapons jects from which relieve the visitation jail adequately will old packages to jail. They not allow do facility. at that problems programs); of Barnes v. Government inmate Although other federal are aware that we Islands, 1218, (D.V.I. F.Supp. Virgin 1235 415 seemingly a constitutional found courts 1976) (effective separation system of detainees in a right to a reasonable classification Malcolm, ordered); 371 Rhem v. convicts of those cases has the rationale local (or 594, 617-20, (S.D.N.Y.1974) See, F.Supp. g., Campbell 624 always entirely lucid. e. system), development 258, dering McGruder, 1978, of a classification U.S.App.D.C. 283- 188 1974, remanded, 565-70, 546-48, 507 F.2d 302-307, 521, 2 285, f'd Cir. af 333, (remanded purpose refash (D.D.C.1975) 339-40 aff'g in part, F.Supp. remand, F.Supp. ioning remedy), development (ordering of a classification amended, F.Supp. (S.D.N.Y.1975), system, including provisions visita for contact aff'd, (S.D.N.Y.1975), 2 Cir. Metzger, tion, detainees); 1201-02 pretrial Jones 1041; v. Mal Rhem see also aff’g v. Witten Jones 6 Cir. (S.D.N.Y.1977) colm, F.Supp. Id., 785-88 F.Supp. F.Supp. berg, inadequate). plan (finding prisoners classification 1971) (classification (N.D.Ohio violence, They jail be sent to the carefully invariably inmates. officials re- inspect every prisoner clothing and his sponded injured immediately pris- and took when he They is incarcerated. conduct fre- hospital necessary. oners to the when Af- quent, inspections unannounced shakedown scuffles, they generally ter minor tried to every They permit cell. do not contact separate the combatants into different cells visitation, except in carefully certain con- short, problems. to ease the this record trolled present circumstances. The sheriff pattern practice does not establish a kept an officer on the floor of the deliberate security indifference to the at all guard against times to inmate vio- protection prisoners, and it is there- lence. The deputies sheriff’s are immedi- necessary injunctive fore not for us to order ately available if reinforcements are need- qualified good relief or to evaluate the faith ed. All of the allegations injuries, save immunity defense of officials with re- one, injuries assert at the hands of other spect any-damage might claims that and not at the hands of properly before us. officials. The exception sole was the alle- gation Mitchell, of Lowell Dean a white plaintiffs charged also that the inmate who claimed that he sprayed use of trusties in the County jail the face with deputy mace when he was unconstitutional. The record indicates refused to move to the pen. black bull the trusties were used for relatively There was no corroborating testimony, and functions, minor helping such as to serve not, not, Mitchell could identify would dishes, food and wash and that did not the deputy allegedly who sprayed him. keys have access to to the inmates’ cells. There allegation by was no Mitchell of a jailer Since on the has been floor lingering injury, and the judge trial did not times, at all and the trusties’ duties have testimony. credit his In none of the other been accordingly. reduced The utilization nine cases did actually par- the defendants jail of inmates as trusties in this has been a ticipate assaults, alleged and there is cry far from the utilization of trusties con no they evidence that potential knew of the Collier, demned in F.Supp. Gates v. and, acting violence with that knowl- (N.D.Miss.1972),aff’d, Cir., 1974, edge, abetted the through assault inaction. Sarver, or trusty, Thomas, F.Supp. One Holt v. Andrew testified that (E.D.Ark.1970), there was never a aff’d 8 fight or disturbance Cir.

while he prisoner was a trusty. or 304. The judge’s findings On the trial of fact are other occasions when there erroneous,22 were outbreaks not clearly and we affirm the 22. “The court finds that trusties in the Jackson delivered from the kitchen to the fourth floor County jail given jail. are duties which are custodial only. They linen, neither “Trusties assist administer nor enforce distribution dis- laundry call, cipline punishment. laundering or clothes and bed lin- ens, cleaning sweeping jail, and within upon “Trusties are selected based their be- handing materials, cleaning perform- out and pris- havior and attitude demonstrated while ing jail. other custodial duties in the jail, becoming oners in the and before trust- provided keys, they “Trusties are not and ies, they given apprenticeship. are a sort of nothing supervision have to do with and dis- eight “There are six to trusties in the Jack- cipline prisoners. During the Diamond County jail, who, son two of at the time of administration, trusties did serve to commu- June, the trial were full-time kitchen em- prisoner requests complaints nicate and ployees, cards, residing with health in the jailer, made in the absence of the but in the holding floor, ground former cell on the administration, jailer duty Ledbetter is on only which is the cell on that floor. The requests at all times and such can be commu- placed kitchen trusties were in this cell due through jailer. nicated long working to their hours and the odd “Trusties are accorded freedom of move- hours of their work. throughout beyond ment not but “Except for the two trusties with health jail. Trusties receive the same food as other kitchen, working cards who are in the assist- prisoners, linen, hy- cleaning the same and ing Grimsley staff, Mrs. and her gienic trusties do supplies. Trusty living quarters are prepare not and serve food. prisoners, except Trusties assist the same as other for free- trays they in the distribution of food after are dom of movement. Two trusties who work 98 S.Ct. 55 L.Ed.2d 252 on the basis of U.S. this issue

denial of relief on not reveal record does Since the findings. those individuals, any, may have been what plaintiffs assert Finally, remand for process, we cannot denied due jail in the vio proceedings disciplinary we have no basis proceedings further are because the rules late Constitution damages. awarding even nominal employed procedures because the vague and Nevertheless, this is a class action and since disciplinary proceed jail officials in by the undisputed that at least some since it is of the Due ings satisfy the demands do past violated the rules persons in the analyzing this is Process Clause. Before privileges, some we and were then denied sue, we not have we should note that do properly the issues are before believe an a case in which individual before us us, sharpened issues have been those deprivation protected of a of a complaining adversity, they and that through concrete interest without due liberty property ripe are for resolution. such cases in which process of law. In most produced substantial testi procedural process due are as The trial violations of serted, rules, penal mony procedures, court finds that such on the appellate if the occurred, judge carefully and the trial actually imposed, usual ties violations testimony. important proceedings. weighed further course is to remand for points findings of his are that rules have brought actions under cells; posted in all the that under injury, persons actual proof absence of only sanctions im previous claims of denial sheriff the who are victorious on their rules were the posed for violations of those process may due recover procedural damages. Carey Piphus, privileges for short dura- loss of visitation nominal Ledbetter, initially operating holding and Sheriff after live in the former cell in the kitchen rules, ground have floor. The latter two under Sheriff Diamond’s made cell, in their posted been allowed a television set his own rules and made they special duties and are com- since explained The rules are read and aware. jail. pletely separate from the rest of the incoming posted all inmates delivery packages, “Trusties assist in the throughout jail. and in cells the hall open inspect pack- but trusties do lay language, rules are in understandable ages them out of or mail and do not deliver prisoner. corporal average is no There presence jailer. punishment physical punishment or detri- operation “Trusties assist in the health, punishment mental and such store, by delivering purchased items from the administered, has been has been minimum. any prison- canteen. There is no evidence of Diamond, punishment con- “Under Sheriff having paid trusty from the er a for an item only dura- sisted of loss of visitation for short having canteen and not received the item. occasions, and, up to 24 hours tions on rare “The role of the trusties in the Jackson prisoner padded in cells. No one of the small custodial, is and is not unreason-_ padded given in the was more than 24 hours inappropriate.” able or cell. judge In his memorandum the trial found 23. beginning of Sheriff Ledbetter’s “Since the that: January, there has administration alleges complaint that there are no “The by punishment at all confinement in been no governing imposition procedures policies cell, only punishment padded and the the upon discipline, inmates whom of discipline and that In no restriction of denial of visitation. been imposed of the mis- is are not told of case Sheriff Ledbetter has denial under charged, they not are conduct with which given weeks, two which was visitation exceeded opportunity present their side to an following period imposed of the De- time tribunal, given impartial an before an cember 1976 riot. opportunity present witnesses and evi- to denied, “When visitation is restricted or dence, represented by an- not allowed to be investigation by jailer or Sher- there is an employee, not entitled other inmate or staff surrounding an incident. iff into the facts cross examine wit- to confront accusers and nesses, sought prisoner “No testified that he had to written entitled to have a and not any represented prior punishment be to findings facts and conclu- record of the of it, punishment or that was im- punishment. was denied sions as to promi- posed finds that rules were without cause.” “The Court nently posted prisoners made aware of administration, during the Diamond them Second, damage we or, pad- conclude no claims occasionally, placement tions hours; properly are us. up twenty ded cell to four before for January only since adminis- planned analyze had to Initially we tered sanction has been the loss of visitation surrounding pendent state the facts law In privileges. view of fact inmates,24 thorough of claims but a ex padded cell has not been used for rule vio- record amination of the convinces us that nearly years, lators in three new and the properly these individual claims are not be operation, is now in we believe it unnec- us only fore The claims of the decision. essary solitary to the use decide whether of Jones, plaintiff, were named Marvin denied periods a confinement such brief is such by Judge, appeal and no the District deprivation liberty pre- of it must are no perfected. plain other named There panoply procedures ceded of mandat- lawsuit, but, held, in this as we have tiffs McDonnell, ed Wolff v. represent the inter Jones continue (1974). L.Ed.2d 935 ests class. problem is to determine Damage Law State Claims Judge whether the District certified a class, 23(b)(3) class, 23(b)(2) a aor combina Our discussion of the federal constitution- If two. the class is included, al appropriate claims at points, class, 23(b)(2) absolutely it was not neces analyses potential grounds of state law notify every sary member of the class injunctive relief. We concluded that through who could be identified reasonable plaintiff injunctive is class entitled relief effort, but, rule, accordance with issues, on some but for the reasons to follow only injunctive court could award and de we conclude that to no entitled claratory Therefore, relief. the individual damages of for violations either state or state law for damages claims would not First, that, federal holdings law. our 23(b)(2) cognizable have been class ac respect issues, to certain no relief war- is tion. necessarily ranted on this record include injunctive holdings that neither relief nor cognizable claims have been Such would an of damages action, award 23(b)(3) warranted. in a class however. For ascertain, plain danger, anticipate 24. As far as we reason are able to unusual such proof concerning injuries malice, danger, tiffs participation introduced in or of actual upon Mitchell, Annot., inflicting injury. generally flicted Lowell Dean Darrell See McGee, Miller, event, Anthony Eugene Glenn Darrell In whatever A.L.R.3d 1021 Mississippi Ladnier, Overstreet, Bobby Hughes, is, proof necessarily Donald law would Leclair, Carver, Larry Johnson, individualized, Robert Albert and the trial court would also According evidence, analyze surrounding and Walter Hoie. have to the facts each injuries particular all but prop- one these men sustained order incident violence in erly qualified good immunity hands other inmates. some cases the evaluate the faith identified, assaulter was prison and no inmate has defenses officials. See Mississippi Cook, Bogard made defendant in this suit. 5 Cir. requires prisoners law importance that a sheriff owes in his Because of the of the individualized duty State, a proof good of reasonable care. Farmer nature of the and the faith v. immuni- 96, defense, (1955). ty might Miss. 79 So.2d 528 also See it be difficult for us to con- Mississippi Durham, (b)(3) v. 5 Cir. F.2d clude that tried as a such claims could be 152; Williams, requires ques- Roberts v. 5 Cir. F.2d class action. That rule that “the Nosser, Anderson v. Cir. tions of law or fact common to the members of part part, predominate any questions aff'd and modified in 5 Cir. class over af- (en banc). fecting only members,” 456 F.2d 835 and it We are unaware would individual any Mississippi requirement might cases which hold sheriff that a seem this be met. injuries addition, prisoner directly liable only for to a caused In if there are 10 identifiable by prisoner, prisoners the assault of but think another we a law claim who have colorable state likely courts, Mississippi’s presented damages, hardly joinder it that for it can be said that question, adopt impracticable. 23(a)(1). with the would common Fed.R.Civ.P. prison 23(b)(3) law rule a official liable of our is no or is not view conclusion there injuries by prisoner upon us, ques- inflicted an one class before we do not decide such knowledge other in the some absence of tions. Therefore, class, plaintiffs only 23(b)(2) have been were. we have a such a would 23(c)(2) only before with Rule class action us. Since responsible complying was introduced proof as to whom “to the insuring that the court directed damage on the state law claim are not practi of the the best notice members class plaintiffs, named decision of those 10 circumstances, including in cable under the judicata have effect claims would no res can notice to all members who dividual and we must therefore decline to decide through effort.” Fed. identified reasonable these issues. 23(c)(2). were at least 8580 R.Civ.P. There finally of the class which was members Access to Courts certified, likely that the ad and it seems judge’s findings fact are es- The trial those could have been people dresses of pecially pertinent here: through identified sheriff’s records competent The court finds that This notice is telephone directory. the local defenders, public paid by active the coun- mandatory, and costs of that notice from the Jackson ty, operate offices in plaintiffs. borne “There is must be County public courthouse. The defend- nothing in Rule 23 that the no suggest ers, attorneys, gener- as well as retained requirements tice can be tailored to fit ally have freedom of movement particular plaintiffs.” Eisen pocketbooks County out of Jackson at times Jacquelin, v. Carlisle & 417 U.S. than normal visiting other hours. There 40 L.Ed.2d is a small room on floor of the the fourth opportunity to Without valid notice and an County jail, the former part Jackson a res opt class, out of the there can be no room, trusty attorneys and clients where judicial judicata given effect determina doors, and, upon meet behind closed parties. unrepresented tions of the claims of request, prisoners attorneys their judicata problems of the res which In view in the given one of the downstairs rooms prisoner in a recent class action suit arose office for Sheriff’s conferences. Cook, Cir., 1978, Circuit, Bogard see this County Located in the court- Jackson carefully we scrutinized have Library, is the Law house judicata this record to determine the res being which was as second described effects of our decision in this case. Li- County (Jackson) to the Hinds Law complaint plaintiffs ap In their among in the brary, county law libraries sought the both a parently certification of law Requests Mississippi. state (b)(3) class,25 (b)(2) and a but there is no to the by prisoners books are transmitted in the indication certification order as defenders, turn, who, in obtain the public type Judge of class what action the had library requested law from the law books certified. There is in the also no indication re- Very few such courthouse. record that the proper class members were made, which quests have been but those notified, ly and we cannot assume have been made have been honored. alia, complaint states, language language 25. The inter that: This tracks of both 23(b)(2) (b)(3). opinion Our earlier Adjudication respect to individual certify Judge case did not order the District practical members of the classes would as a merely (b)(2) class, (b)(3) either a but dispositive matter be interests of the evidentiary hear- ordered him to conduct a full adjudica- parties other members not to the ing class. See on the determination parties opposing tion. The the classes Diamond, 519 F.2d 1090. Jones Cir. generally grounds acted or refused to act on plaintiffs was not until after trial classes, It applicable thereby making ap- complaint amend to conform to propriate moved to injunctive final relief or corre- pendent adding state law sponding the evidence declaratory relief to the classes only speculate, Although it questions we can claim. whole. The of law or fact common strategy may been a predominate that this have to the members would seem of the classes requirements any questions only of affecting to avoid notice over devised the individual so, members, 23(c)(2). superior If condone such and a we cannot class is to Rule action tactics, parties other available and we caution and District methods for the fair and effi- adjudication controversy. Judges dodges. to cient to be alert such of this concluded, Mississippi’s the sole judge penitentiary required Insofar as have upon findings, pretrial ceiling based these that de to on impose federal court the unconstitutionally prisoners were number which the pre may tainees not of state the seeking griev lawfully existing vented from redress their incarcerate at facili of court, have, earlier, they explained newly ances ties. As we they in and all con it, being appointed temporarily wish victed criminals are held or retained counsel. Al state, county jails in though ap we across the it are concerned that the county pears County jail provided adequate space have not for convicts outnumber attorney-client detainees. See consultation at all times in know, note 5 supra. Insofar we past, we think that the steps taken Mississippi organized pro State of no has present are probably administration ad gram providing “adequate assistance equate, in light existing physical persons from facilities, trained in law” to enable safeguard to the interests of the prisoners convicted corpus to file habeas in preparing detainees defenses petitions rights and civil actions. The State trials. We also note that the new will library established a law at the Parch- provide highly improved facilities visita man penitentiary admittedly is which ade attorney-client tion consultation. Reed, quate. F.Supp. See Stevenson 'Therefore, respect pretrial de aff’d, (N.D.Miss.1975), Cir., 1976, tainees we think no further relief is war denied, cert. ranted this record. (1976). Therefore, S.Ct. 50 L.Ed.2d 315 if all convicted criminals were held at Prisoners Who Judgments Are Under Final Parchman, would, the State in likeli all of Conviction and Who Have Exhaust- hood, obligation have fulfilled its under Right ed The Appeal of Direct Bounds. prisoners Those who are under a final case, however, is judgment Such not the as to conviction for a penitentiary county convicts in jails pending held offense and whose appeals direct have been ultimate transfer to Parchman. do not situation, exhausted are in a We different how- ever, know the content of the Jackson up who to that but, event, library law point have had the those convicts representation benefit of have inadequate library to that of counsel if access desired it. Had the state inadequate courts, therefore penal access to parties authorities been to this litiga- assuming legal assistance is other- thought we would have that the Dis- provided. wise physi- Prisoners do not trict have adequately Court addressed this issue cal library; request access one light Smith, must Bounds 430 U.S. particular book, someone then will 97 S.Ct. L.Ed.2d locate that volume for him. Even if indi- clearly That case held that “the funda- gent, uneducated convicts could ex- know right mental constitutional of access to the actly legal were, what their claims it would requires prison courts authorities assist simply impossible for them to know what preparation inmates filing cases up to look to buttress their claims and legal meaningful papers providing pris- where those cases It could found. adequate oners with law libraries or ade- small wonder that judge the trial found quate persons assistance from trained in the that “[v]ery requests few such law.” 430 U.S. at made, . . .” . Bounds dealt with the efforts of North Car- olina set up legal libraries use of It is the responsible State which is the convicted prison criminals held in the 77 backlog for the of convicted criminals units throughout scattered the state. county jails. prison convicts are state presented by rub ers, the instant case is the fact county prisoners. only It is fair directly Bounds is relevant be- that the required State be to meet its obli cause the gations unconstitutional conditions at under Bounds. Because the State protective for a defendants moved order not the party, the we should responsible

itself is 26(c); they only a moved under Fed.R.Civ.P. implement these defendants to order local interrogatories. to strike the The District comply Bounds. would system which relief, objection Therefore, Court overruled the and ordered the of we affirm denial responses. to prejudice taken but this action is without bring the right against to suit plaintiffs’ the After these skirmishes were preliminary compli- to officials secure appropriate state costs completed, with all the of this burden- ance with Bounds. by borne the discovery apparently some de- fendants, happened nothing January until Attorney Fees and Costs a plaintiffs when the moved for grounds judgment default on the that de- perusal a careful lengthy, After to file to the fendants had failed answers the 270 pages transcript trial and of interrogatories. response to last set dis- appeal, on we are pages the record par- this motion was an assertion that the this case manner in which mayed the negoti- had been in settlement engaged ties Al- through the court below. proceeded ations and that it was defendants’ under- objections the admis- to though numerous standing plaintiffs. prepared were to during the lodged were sion evidence settle and therefore did not need answers to trial, were many of which meritorious interrogatories. With the trial set for Feb- appeal, nei- upon could have sustained 14, 1977, ruary it was all too evident that objections party pressed those ther settle, party neither wished to and the de- does upon appeal. Consequently, this Court filed their promptly fendants answers. motion, not, attempt purge of its own Although record of all inadmissible evidence. of the foregoing none seems beyond scope of the Federal Rules of concerned, however, pat- We are with the Procedure, stage Civil it sets the for the practice of counsel revealed in this tern and,“trial by gamesmanship ambush” which August was complaint record. The filed on 11,1977, February followed. On the Friday 13,1973, (not interrogatories count- and 123 trial, before the filed with plaintiffs ac- ing subquestions) were This attached. a Court Motion for Court to Have Reave rule spite tion was of the local taken Inspect Expert and Photograph Witnesses limiting interrogatories to 30 in number. Facilities, the Jackson Jail a motion raised, however, objection and the No was granted by was which Court in an ex filed answers on dutifully defendants This was parte proceeding. contrary to the entered September 26. New counsel then letter, if not spirit, Fed.R.Civ.P. and on June plaintiffs, the case for the accomplishedby and should have been coun- con- interrogatories, set of second late prior sel date. Defendants questions (again not sisting of 75 more trial, 2-3, objected procedure Tr. counting subquestions), propounded was overruled, objection they but defendants, then to strike who moved challenge appeal. it on do hearing, After interrogatories. those trial, opening day of plaintiffs February On Judge permitted District subpoena Singing to the River interrogatories more ordered the issued Hos- file 75 ordering production days. pital Pascagoula within 15 On defendants to answer 30, 1974, were vast medical records July interrogatories 56 more amounts of filed, day. plaintiffs’ were in due next When counsel offered answered day, months after evidence the next he course. On March those records as had many its decision in Jones v. admitted that he himself not seen this Court rendered Diamond, Cir., 48 of the did know their con- records and (again omitting objected Tr. interrogatories more tents. 420. Defendants records, total) largely priva- extensive were admission of these subquestions from considerations, were again cy ob- but records propounded, and the defendants Again, eventually appeal no jected. indicate that admitted. The record does not 1026 Also, In ruling any proceeding taken. action or

from has been on to enforce recess, February during subpoena a a provision a 1983 of and other [§ statutes] court, tecum was on discretion, duces served Sheriff Ledbet- may . the in its produce regard- ter to documents numerous prevailing party, allow the the other than jail. ing management In the of States, United attorney’s a reasonable fee trial, of would request seriously heat such a part as of the costs. impaired of that ability have defendant clear, makes As the statute counsel, represented and his who all of the first a court prior determination must make defendants, prepare own case. his Such to assessing attorneys’ fees is whether a Fortunately, tactics cannot be condoned. party party” “prevailing was a within head, issue did a this not come to since the meaning course, of the statute. Of if the Judge was District forced continue the plaintiffs “substantially prevail” did not in case due to other time commitments. fees, the litigation, attorneys’ an award of Finally, there is the matter of the rebut- costs, inappropriate. See, g., would be e. by plaintiffs. tal witnesses called Two Shields, Cir., 1977, Franklin of witnesses these were inmates who testi- (en denied, banc), cert. primarily alleged concerning fied sexual as- 56 L.Ed.2d in saults and one witness was an 6 Moore’s Federal 54.- Practice H attorney who testified about the lack of a at defines the terms as 70[4] private room for consultations with his follows: objected client. on grounds Defendants general, party a in whose favor this testimony part should have been judgment is rendered the district court of the case in is chief. There much merit to is the prevailing party that court . . . argument, but has appeal no been tak- Although plaintiff may not sustain his en. Defendants were then forced bring claim, judgment entire is for rendered deputy Pascagoula two sheriffs from him he prevailing party. is the Court Biloxi to counter that testimony. logically Such a appealing. rule is To plaintiffs Since encountered a total hold that plaintiff prevail could not for Court, in the question loss District purposes attorneys’ fees and he costs if and attorneys’ costs fees was neither ad- recovering succeeded in for fewer than half dressed nor decided in that tribunal. complaint claims made his would necessarily It that we follows are in no pleading inconsistent with our liberal position ought intimate what to be done rules penalize aggrieved parties would question. on this We shall remand the case for covering all at the bases initiation of the findings to the District Court for and con- Moreover, suit. always— claims are not subject. clusions on this In the interest of perhaps “weight” equal ever—of to the liti- judicial however, economy, hope and in the gants The heart themselves. of the suit it will help necessity avoid may prayer injunctive relief, be a but case, appeals further in this we offer the complaint also damages seek following general comment. multiple amounting relatively counts to a insignificant Certainly plaintiff sum. if the Attorneys’ Fees26 injunction, “prevailed”, secures his he has awarding propriety attorneys’ fees even damage if all claims were disallowed. in a suit such as was recognized by this one Congress Rights Attorney’s Civil recognized have this courts 1976, U.S.C., Awards Fees Act of principle determining fees, attorneys’ but which states: tempered it with a detailed examina- part case, subjects aAs of our Much of consideration of this what follows on these special Court, request However, Judge and at the Judge authored him. Rubin does agree Rubin attorneys’ taken a close look at the matter of with all of the conclusions herein type. expressed topic. fees and costs in cases on this N.V., Cir., 1975, Mead of each circumstances particular case, Johnson v. Geor at- required under remanded reconsideration of court Inc., Cir., fees, Highway Express, torneys’ suggesting n. 29: gia Thus, to which coun degree F.2d 714. particularly it would be In this case has become in the lawsuit prevailed sel portion what important to determine the determining appropriate factor in attorney’s applied time was to Walter’s attorneys’ to be awarded. fees amount of the on which Walter ultimate- claims approval of a reduc example an of our For grant only and to so of ly prevailed, much plain in which the attorneys’ in fee an computed as are in the fees thus fair relief, v. see Foster injunctive tiff obtained relation to the amount of Walter’s recov- Inc., Cir., 1978, F.2d Boise-Cascade, 577 5 ery on these claims . 335, rehearing en banc denied. Rife, Cir., 1974, And in v. 6 503 F.2d Marr rule in stated this courts have Some 735, 744, explained: the court award by saying the shorthand form any recovery deny appellants To for to to the extent proportionate “should be attorney they were least fees when at suit”, plaintiff prevails which the would, their suit partially successful in 7 Corporation, Foods Williams v. General believe, policy we be inconsistent 399, v. Cir., Batiste 1974, 492 F.2d attorney favoring fees. At the award of Cir., 7 Corporation, Furnco Construction time, unfair might the same it indeed be denied, 420 1974, cert. 503 F.2d attorney upon fees impose all the 1127, 928, 43 L.Ed.2d U.S. 95 S.Ct. suit single when the involved defendant Yellow (1975); Diego v. San Schaeffer alleged violations various numerous 1002, Cir., 1972, 1008. Cabs, Inc., only was found to be defendants and one terms, “it appropri is general Put in more it might meritorious. In such' a case ate, [attorneys’] establishing in a reasonable plaintiff the better rule allow fee, of into net result to take account attorney amount of fees to proportionate Cir., efforts”, Southworth, 1 v. their Souza prevailed in that he the suit. the extent 609, justice of this F.2d of In McCormick v. Attala Board Defendants should readily apparent. rule Education, N.D.Miss., 1976, F.Supp. s pay attorneys’ fee not have to attorneys’ was a claim fees (which they them brought against cases theory plaintiff’s coun- reduced on cost) charges on have to defend time claimed is not sel’s “total out-of-court fact the merit of some basis in which lack for the reason that a wholly compensable or in law. spent in deal time great of counsel’s of Sweeney In v. of Trustees Board develop an issue on which seeking to Cir., 1978, College, Keene State plaintiff lost”. VII, plaintiff under Title sued determining proper Thus, in IX, Act, Equal Pay Title fees, attorneys’ the trial court on of amount Amendment, securing partial Fourteenth v. should take remand in Jones Diamond awarded relief under Title VII. She was factors, account, ex among other into of fees and costs in amount attorneys’ prevailed plaintiffs have tent to which the $17,766.56, than only twenty per cent less appeal. on proved. claimed and The Court amount noted, party prevails part “A who fees”, Costs attorneys’ Id. at

still be awarded judge abuse and held that the trial did not 54(d), Federal of Rule Rules Under re- reducing the award to his discretion Procedure, express pro when “Except Civil suc- plaintiff’s of flect the limited extent in a is made either statute vision therefor cess. rules, costs or in these of the United States the prevail reversing the court be allowed as course partially After trial shall directs the court otherwise ing party Netherlands unless on merits Walter though course, party even he has not This, . does sustained not mean party compensated claims, all although that a will all of cases his some incurred, however unreasonable. expenses type apportion the court will costs expenses ordinary that are out of the Those among parties. be closely

or excessive in amount will scru- rejected squarely any courts have Other court, by the tinized Farmer Arabian argument apportioned that costs should be Company, American Oil according party issues which on each L.Ed.2d 248 prevailed. K-2 Company Ski v. Head detailed, It is this reason that we have Cir., Inc., Company, Ski ante, procedural history and the tactics 471, the defendant contended that since the plaintiffs. used in this case on behalf plaintiff prevailed two had allegations violating have therefore been almost trade se- Costs routine twelve ly plaintiff crets, a awarded in toto whenever has the should divided. The costs prevailed part any on substantial of his plaintiff pre- the was court held that the Thus, Hostrop claim. in v. Board of Junior vailing party was entitled to costs. and all Cir., 515, 1975, College District No. 7 523 This for the benefit of the court. rule is 569, plaintiff wrongful F.2d a who for sued Deposit explained As in Federal Insurance Amendment, the termination under First Corporation v. Fruit Growers Service Com Clause, Due Process guar and contractual E.D.Wash., 131, pany, 2 F.R.D. antees, procedural and recovered due under where the court refused to disallow witness process, was awarded his costs. In Lewis v. for on fees those witnesses who testified an Cir., 1968, Pennington, 6 cert. plaintiff prevail: issue on which the did not denied, 393 21 U.S. 89 S.Ct. It to seems me that if the is Court 444, although L.Ed.2d coal companies the going deciding to start what witness fees prevailed only grounds on one of ad two according will or will not be allowed to vanced, they “prevailing par were deemed accepts testimony whether the Court ties” and to entitled costs. witnesses, of such the Court would soon adoption Before Federal of the Rules find spending passing itself as much time Procedure, of the Supreme Civil Court indi upon the as it does in taxation of costs law, that opposed cated in suits at to reaching in to a conclusion reference an equity, award of costs the prevailing case itself. course, party was a matter of and the court no doubt that in this case We have power any part was without to deny no plaintiffs should recover costs incurred total. As the in In Court stated re Peter dilatory in or which late tactics contributed son, 543, 549, 40 64 nothing appropriate of resolution (1920): L.Ed. 919 case, viewed as a whole and not in its It has generally also been held that this separate parts. right the prevailing party costs of in actions law extends to entire costs Provision compensation of wit- for court, in the trial is court U.S.C., in nesses made 1821 which § power apportionment without to make an states: upon the prevailing based the fact A attending any witness in court of the claims, party part has in his failed or any ... United States before part that for other reasons or none person deposition authorized to take his of the costs should fairness be allowed. pursuant rule order of court however, Today, recognized it is that a States, receive $20 United shall court has wider discretion over an award day’s each attendance and for the time See, Wright Miller, costs. Federal occupied going necessarily to and re- Practice and Procedure: Civil 2667: § same, turning per from the and 10 cents party

A has going returning who obtained some relief from to his mile usually regarded will prevailing as the place of residence. plaintiff, the named resented Marvin repeatedly has

The Fifth Circuit Jones, claims are provided although fees his individual statutory held that us exclusive, properly a district court not before for decision. are compensation authority to tax costs no The did establish evidence of the statuto in excess expert witnesses County jail unfit for hu- old Jackson diem, and subsistence allow mileage ry per concept any modern man habitation under See, g., e. Gerber appropriate. ance where were decency. conditions Cir., 1968, 394 F.2d Stoltenberg, 5 v. “inhumane”. or “barbaric” or “uncivilized” Ter Lake Harbor and Henning v. Charles pens, the find- respect to bull With District, Cir., minal ings integrated clearly were recovery expert fees diversi (allowing erroneous. case as matter domain ty eminent brought plaintiffs attacks law under the Erie Louisiana substantive Cir., (2) (3) cooling, (4) States, (1) safety, heating, fire doctrine); Baum v. United food, ventilation, (5) (6) handling “expert (recognizing F.2d 85 attention, (8) 54(d)”); mail, (7) exception prison Rule United medical witness Kolesar, (9) Cir., 313 F.2d 835 purposes, use of trusties for limited States facilities, Act); (10) Tort Claims (suit under Federal lack of outdoor recreational Company, 5 (11) v. American Tobacco prisoner safety, lack of contact visita- Green also, See, Cir., (12) Adams were not privileges, sanitation 172; Cir., 1975, Carlson, evidence, supported by substantial the find- Cir., Williamson, Burgess questions clearly erro- ings on these are Carnathan, N.D.Miss., 879; neous, Morris v. decided under and the issues were Sperry Rand Cor Consequently, 63 F.R.D. correct the legal standards. E.D.Va., 1973, T-O, Inc., poration topics denial relief on these affirmed. of A — 132, 137. F.R.D. on Remand Miller, be Granted Relief to Wright and As summarized in Civil 2678 Procedure: Federal Practice & mandate, the District Upon receipt of our at 237: judgment, appropriate an Court will enter early despite a few decisions Finally, following designed accomplish the results it well that a contrary, seems settled the County jail: as to the old are expert witnesses entitled party’s will segregation of inmates be 1. Racial witness al- regular statutory fees prohibited. and that no costs by lowed Section 1821 any extra tests that will be allowed for Except for the “drunk tank” 2. party might conduct in the prevailing prisoners confined the number of circumventing this restriction. hope of jail the number of new shall exceed At installed those permanently bunks. AND CONCLUSION SUMMARY capacity times shall when reached, prisoners charged or convicted no trial complaint the evidence at The and shall be ac than Jackson waterfront”, counties other raising of issues “covered County jail un cepted in the new Jackson of no merit. This merit and some others writing by a jailor is ordered in less the opinion of unusual an has necessitated her him or for. judge to confine state circuit appropriate it seems length, so much so that violence or mob purpose forestalling of summarize, briefly as as should that we This jail escape. should a real likelihood The holdings and conclusions. possible, our crowding. eliminate undue much law has been condensed as applicable at outset. possible as prepare will and jail 3. authorities The the District approval of consisting of submit plaintiffs, subclasses of visitation convicts, appropriate non-contact were Court pretrial detainees there shall no rules old but rep- for the by the Court are certified District subject injunction entry thwart weapons, on this because the evi unlawful a remedy.27 dence does not warrant such drugs, implements into the escape purpose clarify Our here is to the situation jail. copy respect A of the order in this it and remove from the of further field shall be prisoners, by made known all dispute ap in the federal courts. When posting continuous or otherwise. The no- proved Court, policies the District these quarters jails tion has arisen in some published shall be to all appro inmates solely maintained benefit of the notice, priate prison and the authorities will maintained, inmates. Jails are pub- also expected to enforce them. expense, public lic for the benefit. The Constitution neither directed nor intended 4. The will prepare authorities discharge federal courts in the approval submit for the of the District judicial ignore duties should these con- policy Court statement of toas the han siderations. If are to be informed dling violent, disturbed, contagiously rights (as they their constitutional should prisoners, ill so unnecessary as to avoid the be) it they may is not amiss that also be exposure of these general individuals to the informed that the Constitution does not ex- prison population. As in immediately conduct, cuse good breaches of violations of preceding paragraph, it will not be neces jail rules, valid prison or hazards to securi- sary injunction that an be entered on this ty. subject, it but is our purpose that the situa tion shall be in compliance stabilized Holdings Additional requirements of the law. Notice to the inmates duly given. must be part We vacate that of the order which post directed officials to 5. A declaratory judgment will be en- “prisoner list of rights” set forth in our requiring tered loss of visitation day Footnote day management rights is to continue a sanction operations jail must, of a within the rules, jailer, violation of as a matter forth, framework herein set be left for the of minimal due process, shall inform the officials, duly appointed public elected and inmate of the that fact rules violations are they who answerable to the law if delib carry a penalty, such inform him of the erately recklessly impinge or on the consti suspension, it, advise him of the reason for rights prisoners. tutional of give and him an opportunity informally to good cause, has, any show why he he With respect to law the state claims for should not be subjected to the damages, sanction. we hold that of the claims the ten procedures These shall be prisoners made known to injuries to whom evidence of the inmates. was trial not properly adduced at are before us for prisoners decision. Those ten are not 6. The new to be orders entered the parties suit, to this and this is not a Rule District emphasize Court shall the duty of 23(b)(3) Any class action. on decision charge officials in to its maintain effect, claims judicata would have no res security prisoners to lawfully hold the we decline to those decide claims. committed it. This shall specifically in- duty clude the of such officials maintain pretrial We find that detainees have not discipline jail; and cleanliness in the meaningful been denied access to the Alabama, Cir., 1977, 27. In except persistent Newman v. This that means where the 291 we said: charged operation conduct of those with the of prison (jail) necessary pres- a makes it for the prison “[W]e conclude that authorities rights, prisons ervation of constitutional should required prison should not be to maintain se- injunction. required operate not be curity under eye subject with one the on and the jailer The a duties of on the issues involved in consequences contempt, other on the in of appeal opinion. have been clarified in this which the District Court could convert a ward- principles prisoner. actually exist, If the into herein enunciated not fol- en If abuses there lowed, likely the will are other time then have arrived for remedies less to interfere with injunctions ongoing safety prison”. remedy. of use as a day have another in district court courts, should find that convicts have but we also monetary dam- their class action claims right of access to the been denied dissent, therefore, I from failure ages. Smith, by Bounds v. mandated courts plaintiffs their my of to accord brethren 52 L.Ed.2d 72 97 S.Ct. cir- also from the full measure. I dissent of a vis its Mississippi vis Because State majority cumscriptions imposed situation, we has created this penitentiary nonappealing in defendants grant effect any the local against to order relief decline sought. relief never affirming the in this case. defendants relief, prejudice of we do so without denial en- must be agree I the defendants file suit right plaintiffs joined: responsible against appropriate in continuing segregation 1. From racial state officials. jail; any new cell in the confining 2. From in attorneys’ fees and costs The matter of greater a number will remanded to the District Court for which it than the number for in accordance hearing determination constructed. designed and appearing. guidelines with the herein re- opinion grants further majority the District Court will judgment By agree that I should accorded. lief herein indicated respects in all be affirmed “order,” in is an carefully what called proceed- for further and the case remanded “declaratory judgment,” and one instance herewith. ings not inconsistent “injunction,” they require the an IN PART. AFFIRMED authorities: IN PART. REMANDED To prepare 1. new visitation rules. policy con- To statement of 2. submit a RUBIN, Judge, Circuit con- ALVIN B. violent, cerning separation dis- dissenting part. in in curring part persons ill contagiously turbed as a class action more originated population. This suit general jail from path years ago and its tortuous than five rights process due To minimal grant opinion. The com- majority traced to pretrial detainees. court to free a plaint did not ask the federal below, ac- I would forth For set reasons It single criminal. did re- condemned majority. greater relief than the cord quest judge a federal interfere incorporate all Moreover, I would of the State way judicial processes with the majori- injunction. The single orders into that, only an order Mississippi. sought It difference opinion explain fails to ty county jail, confining persons “injunction”. an “order” and between an guaran- comply of that state officials respect to is said visitation The order with extends to tees that the federal constitution and clarify the situation designed “to to be land, everyone mighty oppressed, further dis- the field of remove it from against cruel protection convicted: free or prison- to respect with pute.” The “order” equal protection, punishments, and inhuman to a “state- relate protection is said to er process of the right the to counsel and due com- If orders are policy.” these ment thereto, Ancillary sought it their com- law. with, will be no need further plied there with of the of Missis- pliance the laws State executed, presume I they action. If are not sippi. appro- contempt would proceedings that by calling accomplished priate. is What My injunctive relief brethren now order name, to by other than these a different to of violations of the remedy a number “injunction,” I do the term avoid the use of operation the of the federal constitution in perceive. agree I County Jail. While deny any the relief relief plaintiffs My the are entitled to all of brethren also They state claims. they respect pending be awarded granted, I believe should Mississippi does “that court, properly point out more and that much in this statutorily filed, that, policy have a articulated which this suit was at the time of trial, operated humane treatment it was being commands for the coun- still unconstitu- jail ty prisoners.” my tionally in at least some opinion respects beyond record in practice for, shows segregation that what has continued of racial been commanded otherwise, jurisdiction the state’s statutes this court would lack always, has not performed by county jailers. any prescribe any issue order or its I would other preserve right beyond integration jail; relief plaintiffs’ to seek dam- were segregation problem, racial the sole ages for these there violations for the inva- would be rights. history sions of their no need to discuss the federal constitutional the county bond issue the architecture of In respects, some I con- concur with the new structure and facilities it will majority clusions the deny- has reached in afford. ing initially sought. some the relief In others, many respect With all respectfully my I differ. for the views of To trace brethren, cannot, therefore, my I agreements requires differences and concur in me their failure to separately: explicitly discuss number of state matters plaintiffs’

defendants have violated the fed- I. FEDERAL CONSTITUTIONAL eral rights constitutional or in their view completion

VIOLATIONS mere of the new injunc- eliminated the need for a broader It is majori- clear parts from those tion. These matters are not unrelated: ty opinion with I which concur that forthright jail operation declaration that was, Jackson County Jail when this suit was likely has been is to continue to be filed, is, operated still being in a man- rights violative of federal is the ner that violates the federal constitution. justification sole majority for the relief the egregious, The most though sole, not the accord; it why also is the reason that relief wrongs were segregation pris- racial of its provides neither adequate recompense for oners, and such intense overcrowding past wrongs protection nor appropriate punishment constitute cruel and unusual against repetition. their future process. violation of due implicit It is in the trial court’s actions that the trial discussing whether majority opin judge, despite explicit disclaimer, his ion plaintiffs found accords protection of prisoners confinement in the old needed to wrongs, accept redress their I be unconstitutional, purposes for on December of this case the precept that 1977 that court jail ready ordered new by findings of judge fact the trial are to be September 15, 1978. obviously It no accepted clearly had unless' erroneous. Rule jurisdiction to decree relief were the Federal Rules Civil Procedure. A num present jail being operated without ber consti- of federal circuit qualified courts have tutional violation. implicit my It clearly rule reviewing erroneous when opinion brethren’s old constitutional facts op- found federal trial erated in an unconstitutional manner when To pages courts.1 review the 1520 of tran- City Chicago, 1. See Cousins v. Council of Cir. Carolina, 1963, wards South 372 U.S. 830, 837, denied, cert. 680, 683, 697; Napue L.Ed.2d 93 S.Ct. 34 L.Ed.2d Guzick v. Illinois, 1959, 264, 271-72, 360 U.S. 79 S.Ct. Drebus, 6 Cir. 431 F.2d cert. 1173, 1178-79, 1217; 3 L.Ed.2d Feiner v. New denied, 1971, 948, 941, 401 U.S. 91 S.Ct. York, 1951, 315, n.4, 340 U.S. 322-24 & 231; Baker, L.Ed.2d United States v. 3 Cir. 303, 307-08, (Black, J., S.Ct. 95 L.Ed. dis 1966, 107, denied, n.4, cert. Kansas, 1927, senting); 380, Fiske v. 274 U.S. 986, 596, 87 S.Ct. 17 L.Ed.2d 448. 385-86, 655, 656-57, S.Ct. L.Ed. 1108. Mishkin, allowing generally Bator, Shapiro, The doctrine See P. reexamination find P. D. ings Wechsler, developed by of constitutional & H. Hart fact was & Wechsler’s The Federal Supreme System (2d appeals Court in from Courts and The state court Federal 590-610 ed. rights 1973). application 52, given hospita ensure that federal Its were a in context of Rule F.R.C.P., hearing See, presents g., ble in at the state level. e. Ed added difficulties that complete jail. order trict court’s the new by some other script present case in scrutiny, 18, re- standard, 1978 this case was such as strict When on October us would now before this spect to the matters informed court orally argued, counsel accept I my So not alter conclusions. still County being Jail was that Jackson as in this applicable rule clearly erroneous in for confinement place used as the sole case, in a case reserving discussion for jail was still not in county and the new squarely applica- met its where it must be although affidavits filed in the operation in of consti- bility significance matters us it argument assure that record after fact. tutional completed physically” and is “has been ex ready occupancy. parte One such FURTHER II. FOR NECESSITY the new be affidavit stated that would RELIEF 15,1979, February but noth- operation in findings fact Let us then assume that the tells that has ing filed in the record us this correct, they clear- insofar as are except majority accomplished. opinion erroneous, found ly majority as the have operation, is states that new now respects them at be. Prob- least some statement, this accept and I this factual but Jail acute County lems the Jackson were accomplished ap- was 14 months after the office in when Diamond took Sheriff months after it was peal was filed and five Ledbet- they grave remained until Sheriff argued. they in 1976. While ter succeeded him if, therefore, by opin- Even the time this that, were alleviated to some extent after filed, persons is detained are ion all the my that viola- agree brethren constitutional my this not as housed in the new does then, Led- tions even and Sheriff continued assume, problems remedy all the years brethren began three better’s administration past merely ample after suit filed. because and sani- this was I space so. tary exists in which do would improved dramati Even had conditions that injunction issue an that would assure cally during Jail year will not repetition of this six old suit not litigation, of this that would course necessary. is even more reason to There injunctive relief obviate need plaintiffs protection court be- provide the Me against future violations. Allee v. See completion of the vaunted new cause 810, 2191, drano, 1974, 416 U.S. S.Ct. apparently more time taken Only the de 40 L.Ed.2d 578. pro- allowed but has than the district court proving fendants meet their burden of leisurely allegedly wrongful appears “the could not ceeded at what to be behavior eq reasonably expected to recur” would evidence that pace. The record bears no uitable relief be unwarranted. United themselves to the defendants exerted Phosphate Export States Concentrated as new facilities soon utmost to obtain Association, Inc., 393 U.S. post-ar- example, they say possible. For 349. also 21 L.Ed.2d See their staff had to be gument affidavits that Collier, Gates v. 5 Cir. jail. Why new operate the trained to training place have taken while could not is evi- proceeding was final construction re- shown that Nor have the defendants evidence of record dent. There no spect explicit even for court orders expedite effort to made defendants will assumption justify would proceeded in accus- Their lives events. their duties in the future. faithfully fulfill fashion; for several thousand tomed relief discloses, Without, so as far as the record evidently beings not a human matter request by-your-leave much as a extension, they ignored the dis- first concern. time justifying lacks an inter- overriding constitutional difficulties concern federal there is no (federal-state) provides. court conflict scrutiny findings On of fact. of federal strict hand, intra-system supervision the other such 1034 1971, Wittenberg,

Moreover, Jones v. N.D.Ohio 323 because of demonstrated old, 100, 93, sub nom. Jones v. F.Supp. condition of the de- aff’d poor 1972, Metzger, it will not be used 6 456 F.2d 854. I fail to fendants’ affidavit Cir. anyone overnight, I perceive any why probable to confine reason cause future jail any enjoin detention, emphasized of the old by my would use their so light past brethren, purpose. justifies anything other more than their by majori- recognized law simple they violations of until can be confinement tried. ty, simple step to be I would take persons duly serving Even convicted promised has been certain that what protection deprived sentences are not performed by jail officials will be court An of the constitution. inmate “retains all delay litigation without further or ordinary rights except of an citizen past will future reversion to there be no expressly by necessary implication, those practices. by taken law.” Jackson v. God from him major- None of accorded the relief win, 532, 1968, 529, quoting 5 400 F.2d Cir. ity compensates County prisoners Jackson 1944, 143 Reichard, 443, Coffin v. 6 Cir. F.2d they deprivations for the unconstitutional 1945, 325 445, denied, 887, cert. U.S. 65 S.Ct. suffering were to the time this case prior 1568, 2001. See also v. 89 L.Ed. Pell Procun during years the six it has filed and ier, 1974, 817, 822, 2800, 94 417 U.S. S.Ct. jail pending. opening been new 501; 2804, 495, Beto, 41 L.Ed.2d Cruz v. argued appeal after this case was ad- 1972, 319, 321, 1079, 1081, 92 S.Ct. U.S. injury them. I dresses none done 267; 263, Lee, Washington 31 L.Ed.2d v. would, therefore, remand for class certifica- M.D.Ala.1966, 327, 331, F.Supp. aff’d damages fully award as tion and more curiam, 1968, 333, per 994, 88 S.Ct. U.S. set forth below. 19 L.Ed.2d 1212. There be little can doubt majority from the facts found

III. RIGHTS OF CONSTITUTIONAL rights least some of their have been CONFINED PERSONS violated. My per- brethren note that most of the

sons who have confined at the IV. OF PRETRIAL DE- SEPARATION pretrial detainees, accused of crime but FROM CONVICTS TAINEES AND “not, yet, anything,” guilty Rhem v. PROTECTION OF CONFINEES Malcolm, 1974, 333, 338, 2 Cir. 507 F.2d even recognized While our decisions though probable there be cause for prison officials have broad discre pretrial their trial. Those detainees who in classifying convicts confined within remain in more than a few hours are institutions, require I would further part for the poor. most well-to-do are majority respect measures than doubtless provide able to bond. inmates; jailers separation of should be justification required merely

The sole for confinement protect do more than trial; pretrial is to assure persons attendance at from who are violent or ill; therefore, pretrial contagiously detainees cannot consti should required tutionally separate also to subjected hardships pretrial detainees from except necessary convicts. Whether or absolutely those to ensure this is called “classification” is See, their continued e. immaterial. g., confinement. Of course each McGruder, 1978, inmate at Campbell Jail, U.S.App. v. 258, 266, 529; whether or 521, crime, Feeley D.C. 580 F.2d convicted v. 369-70; right constitutional 364, segregated to be Sampson, 1 Cir. F.2d from those Carson, endanger who his her security, Miller v. 5 Cir. F.2d 750; persons from Elrod, contagiously See, ill. g., Duran v. 7 Cir. e. 999; McCray Sullivan, ex Cir. Tyrrell United States rel. denied, Speaker, 823, 827; cert. Cir. Malcolm, 46 L.Ed.2d 86. I supra, Rhem v. 507 F.2d at would hold that

1035 process right have a due pretrial detainees discussing that section of Whirl Kern v. apart con eroded, facitities from held in immunity to be official has its hold necessitates even if this stating inmates for a ing regarding prerequisites victed See, g., jail. e. physical modification claim under 1983 the law of the remains § Islands, Virgin of Barnes v. Government agree majority circuit and I cannot with 1232-33; 1218, D.V.I.1976, F.Supp. 415 See, that it has been overruled sub silentio. E.D.La.1972, Landrieu, 351 Hamilton v. Jones, 1976, Bryan g., e. v. en banc 5 Cir. 552; Wittenberg, N.D. 549, v. F.Supp. Jones 1210, 1215, denied, 530 F.2d cert. 429 U.S. 707, 717, sub 1971, F.Supp. aff’d 330 865, 145, Ohio 174, 97 50 and con S.Ct. L.Ed.2d 1972, F.2d 456 Metzger, 6 Cir. Brown, nom. Jones v. curring opinion Judge of 530 F.2d jail permit new n.1; 854. The facilities in Greer, 1973, 1215 v. 5 Cir. 477 Johnson nothing more separation 101, 105-06; Williams, this kind of v. F.2d Roberts 5 jailers. by 1971, 819, effort slight 825, denied, than Cir. F.2d cert. 404 456 866, 83, 92 30 L.Ed.2d 110. U.S. S.Ct. 1983 CLAIM V. SECTION Jones, Bryan In 530 supra, v. F.2d at FOR DAMAGES that, 1215, jailer this en banc held if a court injunctive sought primarily re- Plaintiffs “negligently keeping establishes a record lief, prayed compensation but also system in of this which errors kind are the Jack- damages conditions in likely, he will be held liable. if the But their violating son Jail constitution- place errors take outside of his realm of re- rights. majority al confront this responsibility, he cannot be found liable be- of quest only in the context of the claim reasonably good cause he acted and in fel- physical abuse inmate trusties and faith.” The court went on hold that prisoners, and 1983 low conclude that § good reasonable faith is a defense to a only provides remedy such violence charge negligent imprisonment; of false when the conduct of officials rises defenses, presumably, like other affirmative disregard the level of intentional or reckless must proved by the defendant. rights. With prisoner’s of a constitutional respect, have my agreed negligent all I believe brethren have Other courts to distinguish resulting deprivation failed between the nature of conduct of a clearly right the conduct that must be shown to establish constitutional is ac established See, g., e. rights a violation of constitutional tionable under 1983. Navarette § whether, shown, Enomoto, 1976, 277, 281, 536 F.2d if such violation v. 9 Cir. degree justifies imposition grounds nom. culpability of rev’d other sub Procunier 555, Navarette, 1978, doing, they under In so v. 434 98 damages 1983. U.S. S.Ct. § 24; 855, departed precedent from v. 6 Shappell, Fifth Circuit 55 L.Ed.2d Fitzke n.7; 1972, 1072, 1077 I v. and must dissent from conclusion. Cir. 468 F.2d Howell 1972, 279; Cataldi, 272, 3 F.2d Cir. 464 167, 1961, Pape, v. Since Monroe 365 U.S. Cox, 1972, 233, 456 Puckett v. 6 Cir. F.2d 505, 187, 492, 81 5 S.Ct. L.Ed.2d 234-35; 1972, McCray Maryland, 4 Cir. Rights “against Act Civil has been read 5-6; Carlson, 1, 1971, 144 F.2d Carter v. liability background tort that makes 388, n.20, U.S.App.D.C. 395 and responsible a man for the natural conse 358, n.20, grounds on other rev’d quences lan .of his actions.” Neither Carter, nom. sub District Columbia v. 1983, guage interpretation by nor its § 418, 602, 34 L.Ed.2d U.S. S.Ct. Court, Supreme suggests in Manter, Madison v. Cir. rights tentional invasions constitutional 538. Kern, protection. are within its Whirl v. must, denied, plaintiff suing 5 Cir. cert. A under § course, alleged wrong that the L.Ed.2d demonstrate right deprivation resulted of a secured this court concluded that inadvertent in a infringements or laws of the United negligent of constitutional the Constitution Enomoto, See, g., rights remediable While e. Navarette under States. 281; Kern, liability, v. and of supra, 536 F.2d at Whirl defendants’ official im supra, “simple 789 munity 407 F.2d at n.9. set forth in under the standards Navarette, negligence” 1978, 555, sufficient other circumstanc 434 Procunier v. U.S. always 855, 24, es to constitute a does not dem tort and Bogard 98 S.Ct. 55 L.Ed.2d v. See, rights. Cook, 1978, onstrate a violation federal 5 If Cir. 586 F.2d 399. defend g., Coughlin, e. Bonner v. 7 Cir. en banc by qualified ants are not shielded im 565; 1976, Page Sharpe, 545 v. 1 F.2d Cir. munity, proceed court should district to 567; 1973, Blackwell, 487 Tate 5 F.2d v. Cir. concerning evidence hear individual dam 1973, 193, denied, 475 412 F.2d cert. U.S. ages appropriate after given notice is to 149; 922, 2743, 93 Nettles S.Ct. 37 L.Ed.2d VI, class members.2 See Section infra. 1971, Rundle, v. 3 Cir. F.2d 453 889. due, Even if damages nominal are Carey Piphus, should be assessed. v. See Thus, inadequate for a claim of medical 1978, 247, 1042, 435 98 U.S. S.Ct. 55 L.Ed.2d care to rise to the level of violation 252. Eighth plaintiff Amendment must show “deliberate indifference” to his serious I disagree must also with the conclusion Gamble, 1976, medical needs. Estelle v. 429 my regarding specific brethren claim 97, 285, 97 50 L.Ed.2d 251. Ac- S.Ct. plaintiffs’ for violation of right personal cord, Villar, 1976, v. 10 Cir. Smart security. position Inmates are in no to de 114; 112, Hampton Holmesburg v. Prison fend themselves from attacks from other Officials, 1976, 3 546 F.2d 1077. Cir. See prisoners. It upon is incumbent offi Vincent, 1974, also Williams v. 2 Cir. 508 adopt cials to reasonable measures to en logical F.2d 541. It is both a error and a safety sure the of those individuals in their disregard precedent of our conclude that charge. occasional, While isolated attacks rights the other constitutional involved here by prisoner one or another do not create a may infringed by negligence by not be climate inconsistent with constitutional egregious actions that somewhat less rights, confinement in a where there is than clear indifference. harm, pervasive risk exacerbated overcrowding, inadequate classification hold,

My agree, brethren and I that at supervision, methods or and lack of recrea least some constitutional violations were es- tion, See, violates constitutional standards. wrongs, tablished here. Some of these such g., Finney e. v. Arkansas Board of as Correc segregation the racial and other viola- tions, 1974, Cir. F.2d during period tions that aff’d prior occurred Finney, 1978, sub nom. office, Hutto the time 437 U.S. Sheriff Ledbetter took 678, 2565, 522; apparently were S.Ct. L.Ed.2d wilful or at least commit- Wood Virginia, 1973, hous v. 889, ted in clear Cir. indifference to established F.2d con- 890; Collier, rights. stitutional Gates v. The trial court made 5 Cir. no 1291, 1308-09; acts, findings concerning these nor with Alberti Sheriff of Harris respect County, S.D.Tex.1975, to whether F.Supp. the actions of the 669. jailers during evaluated, regime Properly Sheriff Ledbetter’s the conditions in the should, therefore, violated 1983. may We re- Jackson County § Jail be found to have mand case for consideration of 1983 created unconstitutionally danger- § such an appealed I must interlocutory also conclude that Jones’s individual order could be on an properly us, claims are days before that he basis within under 28 U.S.C. prove damages F.R.A.P., 1292(a)(1) should be entitled to 4(a), his § and Rule see Bald denying appeal City, remand. Jones’s motion to win v. Redwood 9 Cir. pauperis, denied, in forma this court was not necessari- cert. 431 U.S. ly making “partial a determination that 53 L.Ed.2d when Jones failed judgment” dismissing appeal period, final required his claims was final within he was purposes 54(b), judgment of Rule as stated in footnote wait until final was entered. That majority opinion. arrived, 2 of the far 1 think it more time has and dismissal of his claims is likely because, He, subject the motion was denied now to review. like other members injunctive relief, class, denial of the district court is entitled to relief. suit, may lapsed of those claims some I therefore direct would atmosphere. ous of limitations. as a result of statute findings on remand make trial court to My brethren Ann. 15-1-49. Miss.Code defense to this claim respect jail conditions comment, in footnote offered. deplorable” portrayed as “generally were above, I would discussed Although as took Diamond time prior Sheriff showing negligent mainte- hold that a damages suf- in 1972. Claims office conditions nance'of unconstitutional ig- should not during period fered establish a 1983 is sufficient to § defendant nored. claim, re- indifference” is if “deliberate the have dem- quired, I believe defendants complaint in this case not have the of disregard for welfare onstrated such artfully possible, been drawn as as it but deliberately al- They have charges. clearly a class is action and seeks relief im- my brethren find lowed the conditions 23(b)(2) (b)(3), under both Rule Federal standards permissible under constitutional Rules majority of Civil Procedure. See despite this years six persist to for almost opinion, Although injunctive footnote 25. worse challenge, and even conditions court objective, principal damages relief was the of six during the first three those prevail to might awarded an incident even to a suit was period before years and (b)(2) See, g., action. e. Senter v. General violations of egregious filed. more Some Corp., Motors Cir. only rights were terminated constitutional denied, cert. administration, the at the end of Diamond Miller, Wright L.Ed.2d 7A & C. A. “hole” confinement the solitary such as Procedure; Federal Practice and Civil § total process safeguards, and without due cases; (Supp.1978) collecting at 19 n.31 jailers at supervision by lack free-world of Practice, II23.40[4], 3B Moore’s Federal These deliberate night and on weekends. (2d 1978). 23-304-05 ed. This is the not punishment inflict were Advisory decisions to the intimation note of unconstitutional; recommending to Committee the only they change contributed present 23(b)(2). Advisory text Rule and fear enti- atmosphere the violence Note, (1966). Committee F.R.D. relief. tling plaintiffs to § discussion, Comment, general see For a concerning the taken Evidence Actions Antidiscrimination Class Under prisoners. I would consider claims of ten Federal Rules Civil Procedure: to the class action ancillary this at least 28(b)(2), Transformation of Rule 88 Yale claims, properly before hold them 23(b)(2) L.J. 868 them. us for and decide See Sec- decision unnecessary on However, is to dwell it VI, infra. warrants (b)(2) claim whether as an incident damages sustained

award of INMATE VI. CLASS ACTION: SECUR- enjoined. As sought to of the conduct LAW ITY AND STATE CLAIMS notes, 8,500 per- opinion over majority (b)(3) claims under might have sons length on hu- My dwell at brethren claims; Mississippi law pendent by Mississippi required mane conditions claims they wish to assert these whether law; yet they state decline to consider they bring and, so, might what evidence if claims pendent state law because individual is unknown. attention counsel’s action was never certified under class is, to insist 23(b)(3), Rule as a claim for dam- failed plaintiff’s counsel Even certification, complaint any seeks ages prisoners, (b)(3) the individual on and the judge not the trial appeal decision on would it. The issue before now reached conduct Although they is counsel’s judicata have issue before us res effect. case, constitutional 23(b)(3) a new possibility of but whether open leave VII. statutory rights plaintiffs OPPORTUNITY FOR EXERCISE filed, is violated. When a class action some Exercise is not mere recreation. Unused its de- responsibility proper conduct atrophy. muscles Unexercised bodies be- judge. volves the trial Without ill. come Enforced is inertia itself the deni- way compromising impartiality the court’s al physical of basic and mental need. See respect issues, to the substantive Carson, Miller Cir. judge only promptly certify trial must not 749-51. is it Nor those confined for action; deny certification the class years who Surgeons recog- need exercise. certification, considering he must take into nize that physical activity is important so counsel, and, ability account even requiring patients get out certification, it may duty after become his of bed and resume some form of exercise appoint additional counsel for the class surgery. within 24 hours after serious If order to adequate assure an trial on its available, outdoor op- exercise then behalf, victory whether to or defeat. Rule portunity for indoor exercise should be af- 23(b) ample authority affords lengthy periods. the court forded those confined for appear It not ignore to enter does to me that we can appropriate guide orders to judges as what is knowledge of common con- conduct class actions. cerning the body needs of the human mere- I respectfully suggest that the federal ly because no doctor has testified it. judge ain class action is to be “pas not (cid:127) opinion majority points out that fa- observer, sive allowing the initiative of the cilities outdoor exercise are available at opposing attorneys to control the of course jail. However, many the new persons may litigation.” Comment, Adequate Repre have been lengthy periods confined for in sentation, Notice and the New Class Action County jail oppor- old Jackson without Rule: Effectuating by Remedies Provided tunity any exercise, indoors or out. Laws, the Securities 116 U.Pa.L.Rev. Those who lengthy have been confined for a We have ourselves endorsed period injury can show as a result who concept: this class actions under “[I]n of given lack of exercise be op- should an statutes, civil rights the trial court bears portunity to do so. management substantial responsibility over litigation, conduct of the which arises the moment the requested.” class is Jones VIII. OF REGULATION MAIL Diamond, v. 1090, 1098. 5 Cir. states, the majority opinion regu- As rights Concern for the of members of correspondence lation convict in this cir- a class is not for the conscience of trial governed by cuit is our recent decision in judges; we who sit on appeals Estelle, ourselves Guajardo 5 Cir. duty

bear a in regard. that I Accordingly, Guajardo, however, 748. did deal with rights would remand permit plain- pretrial the case to of detainees or the first tiffs to seek amendment proper rights certification of those with under Rule whom such uncondemned, with, persons, 23(b)(3), course, yet as entails, of would corre- all that spond. persons The freedom of speech of including proper rights notice. The of indi- yet guilty found crime and of vidual class damages members to should with those whom seek communicate then be determined in accordance with the be should unrestrained save insofar as their principles suggested. substantive I have I requires. safe pending detention trial damage would remand the claims of the ten persons whose already claims have case, agree Under the I facts considered the trial court for reconsider- Guajardo applied standards should ation awaiting (b)(3) without certification pretrial as well to convicted detainees opinion in the light of this as an incident to persons. The Jail is a rela- 23(b)(2) sought. relief tively small prison- institution. Parchman person “pattern practice [plaintiffs’] there. Even if each

ers are confined counsel.” were ei in the new there is None these matters slept single cell dis argued ther before us. The briefed prisoner contact. The ma- possibility attorney’s trict must fees and court assess moreover, permit jority opinion, pre- would costs set in accordance with standards in the same trial detainees to be confined forth, Georgia Highway Johnson Ex Therefore, cells as some convicts. Inc., 1974, 488 714. I press, 5 Cir. agree the same stan- present case I judge it to to make would leave the district applied constitutionally pre- can dards that sub findings and reach conclusions on trial detainees in the interest institution- ject trial that were assaying without tactics security. al by trial court that de sanctioned same plaintiffs. nied all substantive relief IX. “RELIEF” ACCORDING NOT SOUGHT X. CONCLUSION cross-ap have no The defendants filed who violate the state’s criminal Those They sought relief from the peal. no punished laws must be accordance motion, On own trial court’s order. their Society requires protection its commands. part my brethren vacate district laws, transgress who its and in from those court order directed the officials to only adequate protec instances the many simple post relatively list of “Prisoner incarceration. The Constitution Rights” set forth footnote unde just desserts to even the most accords court’s decision to re Even the district “For, sympathy for violent serving. this inmates quire notification so misplaced, prudent criminals is self-interest might might officials aware that, imperatives require as moral well constantly prisoners’ be reminded of firmly, we must while we deal with them erroneous, clearly rights fundamental ways also with in that are fair deal them error, plain I do understand on or even This utilitarian and not barbarous.” sponte. authority what act sua See principle alone as a moral does stand Sorensen, v. 293 F.2d Nuelsen Cir. relief; predicate judicial the Constitu States, Wright 462. Cf. v. United duty for us. provides both warrant and 610; Delancey Cir. 482 F.2d majority I have Because believe Service, Inc., Towing Motichek 5 Cir. duty perform respect failed Strickler Pfister Asso plaintiffs’ rights, respectfully many of I Growers, Inc., ciated Cir. regards many dissent in those discussed 788, 791. above. Moreover, why my I do not understand upon

brethren feel called to order the dis-

trict court to remind the officials of sought this, party has

their duties. Neither appeal. or on

either the trial court

Finally, of their own volition and again on response appeal

not in issue raised defendants, majority re-

by the

viewed some detail “the tactics used plaintiffs”

this case behalf of the dismay

expressed both the manner proceeded and concern with

which case Books, pp. Terror,” Hughes, York Review of Jan. New a review Sil- “American Violence, Justice, berman, 3-4. Criminal Criminal

Case Details

Case Name: Marvin Jones, on His Own Behalf and on Behalf of Those Similarly Situated v. Fred R. Diamond, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 26, 1979

Citation: 594 F.2d 997

Docket Number: 78-1289

Court Abbreviation: 5th Cir.