AO 450 (Rev. 5/85) Judgment In a Civil Ce»e •

nittb States Btstrtct Court v\ *%?

WESTERN

DISTRICT OF

MISSOURI

SAMUEL L . McDONALD, e t a l , V.
WILLIAM ARMONTROUT, e t a l ,

JUDGMENT IN A CIVIL CASE
CASE NUMBER: 85-4422-CV-C-5

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision byCourt. This action came to trial orhearing before the Court. The issues have been tried orheard and a decision has been rendered.
ITISORDERED AND ADJUDGED
that the Modified Consent Decree is approved. that plaintiffs' motions for a protective order, to compel enforcement of consent judgment, sanctions, a temporary restraining order, and to replace plaintiffs' counsel are denied. that this action is transferred to the United States District Court forthe Eastern District of Missouri.

McDonald v. Armontrout PC-MO-001-010

5/11/89 Dafe
ORIGINAL

Entered on: 5/10/89
R . F . CPNNOR
~r o——
(By) Deputy Clerk

,.,-•i ...

IN THE UNITED STATES DISTRICT COURT FOR T WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

SAMUEL L. MCDONALD, et ai., )

Plaintiffs, )

vs.

)

WILLIAM ARMONTROUT, et al., )

Defendants. )

No. 85-4422-CV-C-5

ORDER Before this Court are defendants' plan to implement the Consent Decree of May 22, 1986 at the Potosi Correctional Center, and plaintiffs' response. On March 13, 1989, this Court held that moving the capital punishment unit for men from the Missouri State Penitentiary (MSP) to the Potosi Correctional Center (PCC) does not violate Missouri Law, the United States Constitution, nor the spirit of the Consent Decree and Memorandum Agreement. In accordance with the provisions of the Consent Decree and Memorandum of Agreement, the parties filed the instant motions. For the reasons stated below,' this Court approves defendants' plan to implement the Consent Decree at PCC as modified and incorporated in this order.

I. Consent Decree and Memorandum of Agreement

On May 22, 1986, the parties in the above-styled cause

amicably submitted the Consent Decree to this Court ;.n settlement

of the plaintiff class' allegations of unconstitutional

|"

conditions of confinement at MSP. The Memorandum Agreement

filed on December 3, 1987 modified and supplemented the Consent Decree and was approved by this Court.
The stated purpose of the Consent Decree is "to eliminate any conditions of confinement which may deny the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States." The Consent Decree contains provisions governing the transportation of death row to a new location. Section III, Paragraph 25 provides: "Defendants may begin housing deathsentenced inmates in such new or additional location(s) upon approval of the plan by the Court."
According to the express provisions of the Consent Decree, such a move is not to be commenced prior to defendants' filing of a plan for implementation of all rights and privileges conferred by the Consent Decree (hereinafter the Plan) with the Court, service of the Plan u on counsel for the plaintiff class, and this Court's approval of the Plan. The Memorandum Agreement provides plaintiffs' counsel with an opportunity to review and comment on the proposed plan. On March 28, 1989, defendants filed their plan. On April 27, 1989, plaintiffs filed a response to defendants' plan. The parties complied with the express provisions of the Consent Decree and Memorandum Agreement.

II. Approval of Defendants' Plan The issue before the Court is whether the Plan ensures that the transportation of inmates to PCC does not abrogate the stated purpose of the Consent Decree and Memorandum Agreement. Portions of the Consent Decree and Memorandum Agreement concern the physical conditions of confinement of the Capital Punishment Unit as it existed at MSP and are mooted by the move to PCC. By mutual agreement of the parties, some portions of the Consent Decree and\ Memorandum Agreement jremain in full force and effect at PCC. Other portions of the Consent Decree and Memorandum Agreement are modified by the Standard Operating Procedures of PCC in the Court-approved plan. This Court has the power to modify the Consent Decree and Memorandum Agreement to adapt to the new facilities in order to achieve the desired result — constitutional conditions of confinement. See United States v. United Machinery Corp., 88 S.Ct. 1496, 1501 (1968); United States v. Swift & Co., 52 S.Ct. 460, 462 (1932); King-Seely Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31, 35 (2nd Cir. 1969). The transfer of the capital punishment unit from MSP to PCC necessitates adaptation of this Court's Decree. Defendants built a new prison, PCC, in Mineral Point, Missouri, containing several housing units designed to house the capital punishment unit. Treatment of inmates in this brand new facility is governed by the Standard Operating Procedure Manual. Particular provisions of this manual, though not identical in form to those in the Consent Decree and Memorandum

Agreement, describe policies and procedures at PCC that ensure the goals of the Consent Decree will be achieved. These new policies and procedures guarantee the inmates' right to constitutional conditions of confinement and accomodate the needs of the new prison facility which is physically distinct from MSP.
This Court has determined that the Approved Plan will guarantee fair and humane treatment of plaintiffs. The purpose of the Consent Decree and Memorandum Agreement is in no way thwarted by the terms of the Approved Plan. The Approved Plan incorporates the goal of providing constitutionally adequate conditions of confinement. The elimination and modification of several provisions in the Consent Decree and Memorandum Agreement are pragmatic and efficacious.
r III. Modified Consent Decree ("The Approved Plan") This cause originated with the filing of a complaint on August 19, 1985. Plaintiffs requested that they be permitted to proceed as a class pursuant to Federal Rules of Civil Procedure 23(a), and 23(b)(l) and (2). On January 15, 1986, the Court (the Honorable Scott 0. Wright) granted plaintiffs' motion for class action status and certified a class comprised of (i) all inmates presently confined under sentence of death at the Missouri State Penitentiary (MSP), and (ii) all inmates who may in the future be confined under sentence of death by the Missouri Department of Corrections and Human Resources (MDCHR), either at MSP or elsewhere.

1 ..,,

Plaintiffs alleged in their complaint that they and all other inmates confined under sentence of death at MSP have suffered and are suffering violations of their rights under the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. Defendants denied that any violations of plaintiffs' constitutional rights have occurred.
Desiring an amicable settlement of this matter, the parties herein agreed to the entry of a decree and filed the same on May 22, 1986, without trial, the taking of any evidence, adjudication, or the admission of liability by any party with respect to any claim or allegation made in this action. Although no findings of fact or conclusions of law were made by the Court, this decree contemplated and was intended to eliminate any conditions of confinement which may have denied the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States. The Court approved this decree with addendum on January 7, 1987.
In January, 1989, the Potosi Correctional Center (PCC), located in the Eastern District of Missouri at Mineral Point, Missouri, officially opened. This prison contains several housing units which have been designated to house inmates who have been sentenced to death. As PCC is a new facility, it has become necessary to modify the consent decree as said decree was based upon the totality of conditions of confinement, which existed at MSP.

Certain provisions of this agreement may depend upon future appropriations by the Missouri General Assembly for implementation. Defendants agree that they shall, in good faith, request with the utmost speed such additional appropriations as may be necessary to put into effect all components of this decree, by requesting such appropriations in a request to be presented to the next session of the Missouri General Assembly, which convenes no later than in January of 1990. Defendants will in good faith make their best efforts to secure such appropriations from the Missouri General Assembly. If sufficient funds are not appropriated in the next legislative session, defendants shall make an ongoing effort to seek necessary funds. If, however, provisions of this decree are not put into effect due to the Missouri General Assembly's failure to appropriate the necessary funds, despite defendants' best efforts to secure such funds, defendants shall not be found in contempt. In that event, defendants shall, to the extent possible within the current resource levels and within future appropriation levels, implement the provisions of this decree.
WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
I . This Court has jurisdiction over the subject master of this action and of all parties hereto.
{

II.
A. Plaintiffs The plaintiff class consists of (i) all inmates presently
confined under sentence of death at MSP and (ii) all inmates who may in the future be confined under sentence of death by the MDCHR, either at PCC or elsewhere.
B. Defendants Defendants are the Governor of the State of Missouri, the
Director of MDCHR, the Director of the Missouri Division of Adult Institutions within MDCHR, and the superintendent of PCC.
Pursuant to Rule 25(d), F.R.Civ.P., the successors in office of the above-named defendants will automatically be substituted as parties in this suit and in this decree.
Ill . Terms 1. Mutuality a. The responsibilities imposed by this decree are mutual. b. Damage to or abuse of programs, facilities or equipment by inmates will be a defense in any judicial proceedings on their behalf to cure defects in such programs, facilities or equipment occasioned by that abuse. c. In the event of continued or consistent abuse or misuse, the nature of which renders such programs, facilities or equipment a risk to the safety and security of inmates, staff or the institution, those programs, facilities or equipment may be

substantially modified, suspended, or discontinued to the extent necessary to restore said safety and security. Defendants shall give notice to plaintiffs' counsel and file a request with the Court for modifying, suspending, or discontinuing programs, facilities, or equipment required by this decree. It is contemplated by the parties to this decree that damage, abuse, or misuse by a single individual will normally be handled by appropriate action as to that individual.
2. Legal Mail and Materials a. Legal mail which is readily identifiable as such will
not purposefully be opened in the mail room. Legal mail shall only be opened in the presence of the inmate as required by regulation 1S13-1.1.
b. Legal materials which an inmate has in his cell will not be read during searches or shakedowns. Legal materials will, however, be searched for contraband during cell searches and . shakedowns. Reasonable care shall be taken to avoid damage or scattering of legal materials.
c. Inmates who. believe their legal or personal mail has been improperly handled by prison staff shall notify the prison officials in writing either by letter or by grievance.
3. Religious Services a. A privacy room will be provided for each unJLt of death
row except the punitive segregation unit. This room will be used for religious services, religious counseling, psychological and
8

psychiatric counseling, interviews and evaluations, and medical examinations. Up to two inmates shall be permitted to attend a group religious service. Defendants shall evaluate this number on a yearly basis to see whether security and management considerations would allow the increase of that number for any of the different security levels of death-sentenced inmates.
b. Minimum Custody CP inmates shall be permitted to attend group religious services for death-sentenced inmates in the chapel.
4. Telephone Access a. Minimum Custody inmates shall have access to telephones
to make collect telephone calls during their release hours, seven days a week.
b. Close Custody, administrative segregation, and disciplinary segregation inmates shall have access to telephones to make collect telephone calls by making arrangements with their case worker or other PCC staff.
c. Telephone calls to attorneys shall be of unlimited duration unless it becomes necessary to terminate the call in order to accommodate another inmate who needs to place a call to his attorney on the same day.
d. Calls other than those to attorneys shall be allowed to last at least twenty minutes. After twenty minutes, telephone calls shall be terminated only if necessary to accommodate other inmates who wish to place telephone calls the same day.

5. Medical Services a. Doctor's sick call shall take place in PCC clinic each
week, absent a medical or custody emergency which prevents the medical doctor from conducting said sick call. In the event of such an emergency, doctor's sick call will be rescheduled as soon as possible. Sick call conducted by Medical Assistants shall continue to take place Monday through Friday.
b. Neither custody officers nor inmate workers shall have access to medical or psychological records for death-sentenced inmates, except that custody officers shall be permitted to carry these files when escorting an inmate to any destination where said records are needed.
c. A medical assistant shall pass out the evening medications rather than a custody officer except in the event of a security emergency. The medication shall be handed directly to the inmate.
d. During sick call, inmates may obtain medical services request forms from the Medical Assistant to attend the dental or eye clinic. These request forms may also be obtained from the death row caseworkers or custody staff. After obtaining and filling out the request form, the inmate shall send the request to the hospital. Within eight working days of receipt of the request, the inmate shall be escorted to the appropriate clinic.
e. Medication prescribed for an inmate shall be dispensed within 24 hours, or sooner if required by the prescription, and after that shall be dispensed at the intervals required on the prescription.
10

6. Mental Health Care a. A mental health care provider who has at least a
Master's Degree is psychology and at least one year of professional experience or its equivalant shall be assigned to death row to provide the services set forth below.
b. All newly admitted inmates shall be psychologically evaluated within two weeks as a part of the reception process. Defendants reserve the right to seek a court order in state co^rt to provide treatment to an inmate who declines such care if defendants believe such care is medically advisable.
c. The psychologist shall make referrals to a psychiatrist whenever the evaluations or classification team meetings (see paragraphs 6(e) and 7, infra) indicate that psychiatric care is advisable.
d. The psychiatrist shall make referrals to a State Mental Hospital if appropriate.
e. The death row psychologist shall sit on the death row classification committee, but is not necessarily a voting member (see paragraph 7, infra).
f. The death row psychologist shall write and implement treatment programs when appropriate after evaluating each inmate. In the event that medication is a part of the treatment program, a referral shall be made to a psychiatrist who shall evaluate the inmate prior to prescribing medication.
g. All prescriptions for psychotropic, antipsyphotic or hypnotic medication will be reviewed on a regular basis by a psychiatrist.
11

h. The caseworkers who are assigned to death row shall be given mental health care training concerning the detection of mental health problems, and death and dying.
i. All inmates not under treatment shall be re-evaluated by the death row psychologist once every year and, if necessary, shall be provided treatment as prescribed above.
j. All medical and psychological records shall be confidential as provided in § 217.075 and § 217.205, RSMo.(1986).
7. Classification a. The Classification Policy at PCC for death-sentenced
inmates contemplates 4 classifications: Minimum Custody CP; Medical Custody CP; Close Custody CP; Administrative Segregation CP. Additionally, death-sentenced inmates can be placed on disciplinary segregation status for 10 days or less pursuant to Division Regulation 1S21-1.4 (212.010). Protective Custody or security needs may also require an individual be placed on no contact status with one or more death-sentenced inmates (said status may include some or all of one privileges of the classification the inmate is assigned when placed on full or partial no contact status).
The Classification Policy is intended to give inmates greater privileges commensurate with good behavior.
b. Any future modifications to the classification system proposed by defendants shall be furnished immediately to counsel for plaintiff class, and counsel shall be afforded at least 7
12

days in which to comment before any such modifications are adopted.
c. Defendants shall seek prior approval of the Court for any modifications of the classification system which are inconsistent with the terms and intent of this decree, otherwise court approval is not warranted. If defendants believe that modification is immediately necessary to preserve the security and safety of the inmates of staff, which is inconsistent with the Consent Decree, such modification may be implemented on an emergency basis without prior approval of the Court, provided that approval is sought promptly thereafter. After appropriate review, the Court may delete or alter the modifications to conform to the terms and intent of this decree.
d. The classification system, and any subsequent modifications of the classification system, shall be printed and distributed by defendants to every member of the plaintiff class.
8. Staffing a. Custody staff for death row shall receive administrative
segregation training within three months of being assigned to death row. Administrative segregation training shall include instruction as to the special needs of death row inmates, the appellate and post-conviction process in death cases, and the requirements of this decree.
13

9. Recreation a. Minimum Custody death-sentenced inmates will be given
the same opportunity for outdoor and indoor recreation at PCC recreational facility as are general population PCC inmates.
b. Medium Custody death-sentenced inmates will be given the opportunity for indoor and outdoor recreation during their day room access.
c. Close Custody and administration segregation deathsentenced inmates will be given the opportunity for one hour of recreation every other day.

10. Fire Safety

a. A fire safety evaluation of death row will be conducted jointly by defendants' consultant, Mr. Donald Bussel, and by plaintiffs' consultant, Mr. Ward Duel. Defendants will pay Mr. Duel's reasonable fees and expenses for his work on the evaluation and subsequent inspections. The consultants will

prepare a report, recommending necessary fire safety measures which (i) must be implemented immediately, (ii) must be implemented in the near future, and (iii) are to be achieved by capital improvements. Defendants will implement all fire safety measures recommended by the consultants, and will make a good

faith effort to obtain appropriations from the Missouri General

Assembly (see pp. 2-3, supra) if any such measures require

capital improvements.

,

b. If the two consultants disagree as to whether any

particular fire safety measure is necessary, the disagreement 14

shall be submitted to the Court for resolution. Following adoption of a final fire safety plan, the two consultants shall inspect PCC once to ensure the necessary fire safety measures have been implemented.
11. Visiting a. Defendants will make every effort to make a contact
visit available to attorneys who wish to visit a death-sentenced inmate and have notified defendants 48 hours in advance, except that inmates who are on administrative segregation or punitive segregation status shall receive a noncontact visit. All attorney visits for inmates with execution dates will be contact visi ts.
b. Minimum Custody inmates may have up to 4 contact visits per month which may last up to 4 hours each, with up to 4 visitors each visit. The days these visits may occur will be set by PCC staff.
c. Medium Custody inmates may have up to 2 medium contact visits per month which may last up to hours per visit, with up to 2 visitors each visit. The days these visits may occur will be set by PCC staff.
d. Close Custody and administrative segregation inmates may have 1 no-contact visit per month, lasting 1 hour, with 1 visitor. The day this visit may occur will be set by PCC staff. Close Custody inmates or inmates serving disciplinary segregation time may have contact visitation only ip the discretion of the Superintendent of PCC.
15

12. Education Defendants will provide inmates with an education program
for G.E.D.
13. Lighting a. Defendants will supply inmates with light bulbs
sufficient to provide 20 footcandles of light at the bed and desk level.
14. Sanitation a. An environmental and sanitation evaluation of death row
and all other areas where food for death row inmates is prepared or stored will be conducted jointly by defendants' consultant, Mr. David Stull (or in his absence another representative of the Missouri Department of Health), and by plaintiffs' consultant, Mr. Ward Duel. Defendants will pay Mr. Duel's reasonable fees and expenses for his work on the evaluation and subsequent inspections. The consultants will prepare a report delineating all environmental and sanitary measures which are necessary to protect the health and safety of death row inmates. The report will recommend measures which (i) must be implemented immediately, (ii) must be implemented in the near future and (iii) are to be achieved by capital improvements. The parties will be given an opportunity to comment on the consultants' recommendations prior to the consultants' recommendations becoming finalized. Defendants will implement all environmental
16

and sanitary measures recommended by the consultants, and will make good faith efforts to obtain appropriations from the Missouri General Assembly (see pp. 2-3) if any such measures require capital improvements.
b. If the two consultants disagree as to whether a particular environmental or sanitary measure is necessary, the disagreement shall be submitted to the Court for resolution. Following adoption of a final environmental and sanitation plan, the two consultants shall inspect PCC once that all necessary environmental and sanitary measures have been implemented.
15. Feeding Defendants will make good faith efforts to provide death row
inmates with meals on the same schedule that applies to feeding of general population inmates.
16. Equal Access All inmates on death row shall have equal access to all
rights and privileges conferred upon persons within their classification status by this decree, and to all other programs and facilities according to their classification and security status.
17. Inspections Until such time as the Court determines that fuJLl compliance
has been achieved with all provisions of this decree, the attorneys for the plaintiff class shall be allowed access to the
17

death row walks and recreation areas upon 24-hour advance notice

x

to the attorneys for defendants.

18. Reports For at least six months from the date or final approval of
this decree, defendants shall submit a quarterly report to the Court, with a copy to the attorneys for the plaintiff class, detailing the state of their compliance with each and every provision of this decree.

19. Implementation a. Counsel for the plaintiff class will bring any
complaints of noncompliance to the.attention of defendants' counsel prior to initiating any court action. The parties will attempt in good faith to resolve all such disputes between themselves in the first instance.
b. Defendants' counsel will notify counsel for the plaintiff class of any proposed modification of the rights and privileges accorded plaintiffs by this decree prior to seeking formal court approval for any such modifications. The parties will attempt in good faith to resolve all disputes concerning such modifications between themselves in the first instance.
c. If defendants are unable to implement fully the terms of this decree, despite their best efforts, plaintiffs are free to seek such other and further relief from the Court as.may be necessary to bring about elimination of the conditions which this decree seeks to remedy.
18

20. Jurisdiction This Court shall transfer jurisdiction over this matter to
the Eastern District of Missouri to insure compliance with the foregoing provisions until such time as all provisions of this decree have been fully implemented.
It is hereby ORDERED that the Modified Consent Decree is approved. It is further ORDERED that plaintiffs' motions for a protective order, to compel enforcement of consent judgment, sanctions, a temporary restraining order, and to replace plaintiffs' counsel are denied. It is further ORDERED that this action is transferred to theUnited States District Court for theEastern District of Missouri.

May IQ , 1989.

SCOTT 0. WRIGHT / United States District/zJudge

19

 
 McDonald v. Armontrout, Not Reported in F.Supp. (1989)

KeyCite Red Flag - Severe Negative Treatment Vacated by McDonald v. Bowersox, E.D.Mo., September 18, 1995
1989 WL 1128973 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri.
Samuel L. MCDONALD, et al., Plaintiffs, v.
William ARMONTROUT, et al., Defendants.
No. 85–4422CVC5. | May 10, 1989.
Opinion
ORDER
WRIGHT, J.
*1 Before this Court are defendants’ plan to implement the Consent Decree of May 22, 1986 at the Potosi Correctional Center, and plaintiffs’ response. On March 13, 1989, this Court held that moving the capital punishment unit for men from the Missouri State Penitentiary (MSP) to the Potosi Correctional Center (PCC) does not violate Missouri Law, the United States Constitution, nor the spirit of the Consent Decree and Memorandum Agreement. In accordance with the provisions of the Consent Decree and Memorandum of Agreement, the parties filed the instant motions. For the reasons stated below, this Court approves defendants’ plan to implement the Consent Decree at PCC as modified and incorporated in this order.
I. Consent Decree and Memorandum of Agreement
On May 22, 1986, the parties in the above-styled cause amicably submitted the Consent Decree to this Court in settlement of the plaintiff class’ allegations of unconstitutional conditions of confinement at MSP. The Memorandum Agreement filed on December 3, 1987 modified and supplemented the Consent Decree and was approved by this Court.
The stated purpose of the Consent Decree is “to eliminate any conditions of confinement which may deny the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States.” The Consent Decree contains provisions governing the transportation of death row to a

new location. Section III, Paragraph 25 provides: “Defendants may begin housing deathsentenced inmates in such new or additional location(s) upon approval of the plan by the Court.”
According to the express provisions of the Consent Decree, such a move is not to be commenced prior to defendants’ filing of a plan for implementation of all rights and privileges conferred by the Consent Decree (hereinafter the Plan) with the Court, service of the Plan u on counsel for the plaintiff class, and this Court’s approval of the Plan. The Memorandum Agreement provides plaintiffs’ counsel with an opportunity to review and comment on the proposed plan. On March 28, 1989, defendants filed their plan. On April 27, 1989, plaintiffs filed a response to defendants’ plan. The parties complied with the express provisions of the Consent Decree and Memorandum Agreement.
II. Approval of Defendants’ Plan
The issue before the Court is whether the Plan ensures that the transportation of inmates to PCC does not abrogate the stated purpose of the Consent Decree and Memorandum Agreement. Portions of the Consent Decree and Memorandum Agreement concern the physical conditions of confinement of the Capital Punishment Unit as it existed at MSP and are mooted by the move to PCC. By mutual agreement of the parties, some portions of the Consent Decree and Memorandum Agreement remain in full force and effect at PCC. Other portions of the Consent Decree and Memorandum Agreement are modified by the Standard Operating Procedures of PCC in the Court-approved plan.
*2 This Court has the power to modify the Consent Decree and Memorandum Agreement to adapt to the new facilities in order to achieve the desired result—constitutional conditions of confinement. See United States v. United Machinery Corp., 88 S.Ct. 1496, 1501 (1968); United States v. Swift & Co., 52 S.Ct. 460, 462 (1932); King–Seely Thermos Co. v. Aladdin Industries, Inc ., 418 F.2d 31, 35 (2nd Cir.1969). The transfer of the capital punishment unit from MSP to PCC necessitates adaptation of this Court’s Decree.
Defendants built a new prison, PCC, in Mineral Point, Missouri, containing several housing units designed to house the capital punishment unit. Treatment of inmates in this brand new facility is governed by the Standard Operating Procedure Manual. Particular provisions of this manual, though not identical in form to those in the Consent Decree and Memorandum Agreement, describe policies and procedures at PCC that ensure the goals of
1

McDonald v. Armontrout, Not Reported in F.Supp. (1989)
the Consent Decree will be achieved. These new policies and procedures guarantee the inmates’ right to constitutional conditions of confinement and accomodate the needs of the new prison facility which is physically distinct from MSP.
This Court has determined that the Approved Plan will guarantee fair and humane treatment of plaintiffs. The purpose of the Consent Decree and Memorandum Agreement is in no way thwarted by the terms of the Approved Plan. The Approved Plan incorporates the goal of providing constitutionally adequate conditions of confinement. The elimination and modification of several provisions in the Consent Decree and Memorandum Agreement are pragmatic and efficacious.
III. Modified Consent Decree (“The Approved Plan”)
This cause originated with the filing of a complaint on August 19, 1985. Plaintiffs requested that they be permitted to proceed as a class pursuant to Federal Rules of Civil Procedure 23(a), and 23(b)(1) and (2). On January 15, 1986, the Court (the Honorable Scott O. Wright) granted plaintiffs’ motion for class action status and certified a class comprised of (i) all inmates presently confined under sentence of death at the Missouri State Penitentiary (MSP), and (ii) all inmates who may in the future be confined under sentence of death by the Missouri Department of Corrections and Human Resources (MDCHR), either at MSP or elsewhere.
Plaintiffs alleged in their complaint that they and all other inmates confined under sentence of death at MSP have suffered and are suffering violations of their rights under the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. Defendants denied that any violations of plaintiffs’ constitutional rights have occurred.
Desiring an amicable settlement of this matter, the parties herein agreed to the entry of a decree and filed the same on May 22, 1986, without trial, the taking of any evidence, adjudication, or the admission of liability by any party with respect to any claim or allegation made in this action. Although no findings of fact or conclusions of law were made by the Court, this decree contemplated and was intended to eliminate any conditions of confinement which may have denied the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States. The Court approved this decree with addendum on January 7, 1987.
*3 In January, 1989, the Potosi Correctional Center (PCC), located in the Eastern District of Missouri at

Mineral Point, Missouri, officially opened. This prison contains several housing units which have been designated to house inmates who have been sentenced to death. As PCC is a new facility, it has become necessary to modify the consent decree as said decree was based upon the totality of conditions of confinement which existed at MSP.
Certain provisions of this agreement may depend upon future appropriations by the Missouri General Assembly for implementation. Defendants agree that they shall, in good faith, request with the utmost speed such additional appropriations as may be necessary to put into effect all components of this decree, by requesting such appropriations in a request to be presented to the next session of the Missouri General Assembly, which convenes no later than in January of 1990. Defendants will in good faith make their best efforts to secure such appropriations from the Missouri General Assembly. If sufficient funds are not appropriated in the next legislative session, defendants shall make an ongoing effort to seek necessary funds. If, however, provisions of this decree are not put into effect due to the Missouri General Assembly’s failure to appropriate the necessary funds, despite defendants’ best efforts to secure such funds, defendants shall not be found in contempt. In that event, defendants shall, to the extent possible within the current resource levels and within future appropriation levels, implement the provisions of this decree.
WHEREFORE, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
I.
This Court has jurisdiction over the subject matter of this action and of all parties hereto.
II.
A. Plaintiffs The plaintiff class consists of (i) all inmates presently confined under sentence of death at MSP and (ii) all inmates who may in the future be confined under sentence of death by the MDCHR, either at PCC or elsewhere.
B. Defendants Defendants are the Governor of the State of Missouri, the Director of MDCHR, the Director of the Missouri
2

McDonald v. Armontrout, Not Reported in F.Supp. (1989)
Division of Adult Institutions within MDCHR, and the superintendent of PCC.
Pursuant to Rule 25(d), F.R.Civ.P., the successors in office of the above-named defendants will automatically be substituted as parties in this suit and in this decree.
III.
Terms
1. Mutuality a. The responsibilities imposed by this decree are mutual.
b. Damage to or abuse of programs, facilities or equipment by inmates will be a defense in any judicial proceedings on their behalf to cure defects in such programs, facilities or equipment occasioned by that abuse.
c. In the event of continued or consistent abuse or misuse, the nature of which renders such programs, facilities or equipment a risk to the safety and security of inmates, staff or the institution, those programs, facilities or equipment may be substantially modified, suspended, or discontinued to the extent necessary to restore said safety and security. Defendants shall give notice to plaintiffs’ counsel and file a request with the Court for modifying, suspending, or discontinuing programs, facilities, or equipment required by this decree. It is contemplated by the parties to this decree that damage, abuse, or misuse by a single individual will normally be handled by appropriate action as to that individual.

3. Religious Services a. A privacy room will be provided for each unit of death row except the punitive segregation unit. This room will be used for religious services, religious counseling, psychological and psychiatric counseling, interviews and evaluations, and medical examinations. Up to two inmates shall be permitted to attend a group religious service. Defendants shall evaluate this number on a yearly basis to see whether security and management considerations would allow the increase of that number for any of the different security levels of death-sentenced inmates.
b. Minimum Custody CP inmates shall be permitted to attend group religious services for death-sentenced inmates in the chapel.
4. Telephone Access a. Minimum Custody inmates shall have access to telephones to make collect telephone calls during their release hours, seven days a week.
b. Close Custody, administrative segregation, and disciplinary segregation inmates shall have access to telephones to make collect telephone calls by making arrangements with their case worker or other PCC staff.
c. Telephone calls to attorneys shall be of unlimited duration unless it becomes necessary to terminate the call in order to accommodate another inmate who needs to place a call to his attorney on the same day.
d. Calls other than those to attorneys shall be allowed to last at least twenty minutes. After twenty minutes, telephone calls shall be terminated only if necessary to accommodate other inmates who wish to place telephone calls the same day.

2. Legal Mail and Materials *4 a. Legal mail which is readily identifiable as such will not purposefully be opened in the mail room. Legal mail shall only be opened in the presence of the inmate as required by regulation 1S13–1.1.
b. Legal materials which an inmate has in his cell will not be read during searches or shakedowns. Legal materials will, however, be searched for contraband during cell searches and shakedowns. Reasonable care shall be taken to avoid damage or scattering of legal materials.
c. Inmates who believe their legal or personal mail has been improperly handled by prison staff shall notify the prison officials in writing either by letter or by grievance.

5. Medical Services a. Doctor’s sick call shall take place in PCC clinic each week, absent a medical or custody emergency which prevents the medical doctor from conducting said sick call. In the event of such an emergency, doctor’s sick call will be rescheduled as soon as possible. Sick call conducted by Medical Assistants shall continue to take place Monday through Friday.
b. Neither custody officers nor inmate workers shall have access to medical or psychological records for death-sentenced inmates, except that custody officers shall be permitted to carry these files when escorting an inmate to any destination where said records are needed.
c. A medical assistant shall pass out the evening medications rather than a custody officer except in the
3

McDonald v. Armontrout, Not Reported in F.Supp. (1989)
event of a security emergency. The medication shall be handed directly to the inmate.
*5 d. During sick call, inmates may obtain medical services request forms from the Medical Assistant to attend the dental or eye clinic. These request forms may also be obtained from the death row caseworkers or custody staff. After obtaining and filling out the request form, the inmate shall send the request to the hospital. Within eight working days of receipt of the request, the inmate shall be escorted to the appropriate clinic.
e. Medication prescribed for an inmate shall be dispensed within 24 hours, or sooner if required by the prescription, and after that shall be dispensed at the intervals required on the prescription.
6. Mental Health Care a. A mental health care provider who has at least a Master’s Degree is psychology and at least one year of professional experience or its equivalant shall be assigned to death row to provide the services set forth below.
b. All newly admitted inmates shall be psychologically evaluated within two weeks as a part of the reception process. Defendants reserve the right to seek a court order in state court to provide treatment to an inmate who declines such care if defendants believe such care is medically advisable.
c. The psychologist shall make referrals to a psychiatrist whenever the evaluations or classification team meetings (see paragraphs 6(e) and 7, infra ) indicate that psychiatric care is advisable.
d. The psychiatrist shall make referrals to a State Mental Hospital if appropriate.
e. The death row psychologist shall sit on the death row classification committee, but is not necessarily a voting member (see paragraph 7, infra ).
f. The death row psychologist shall write and implement treatment programs when appropriate after evaluating each inmate. In the event that medication is a part of the treatment program, a referral shall be made to a psychiatrist who shall evaluate the inmate prior to prescribing medication.
g. All prescriptions for psychotropic, antipsychotic or hypnotic medication will be reviewed on a regular basis by a psychiatrist.
h. The caseworkers who are assigned to death row shall be given mental health care training concerning the detection of mental health problems, and death and dying.

i. All inmates not under treatment shall be re-evaluated by the death row psychologist once every year and, if necessary, shall be provided treatment as prescribed above.
j. All medical and psychological records shall be confidential as provided in § 217.075 and § 217.205, RSMo.(1986).
7. Classification a. The Classification Policy at PCC for death-sentenced inmates contemplates 4 classifications: Minimum Custody CP; Medical Custody CP; Close Custody CP; Administrative Segregation CP. Additionally, death-sentenced inmates can be placed on disciplinary segregation status for 10 days or less pursuant to Division Regulation 1S21–1.4 (212.010). Protective Custody or security needs may also require an individual be placed on no contact status with one or more death-sentenced inmates (said status may include some or all of one privileges of the classification the inmate is assigned when placed on full or partial no contact status).
*6 The Classification Policy is intended to give inmates greater privileges commensurate with good behavior.
b. Any future modifications to the classification system proposed by defendants shall be furnished immediately to counsel for plaintiff class, and counsel shall be afforded at least 7 days in which to comment before any such modifications are adopted.
c. Defendants shall seek prior approval of the Court for any modifications of the classification system which are inconsistent with the terms and intent of this decree, otherwise court approval is not warranted. If defendants believe that modification is immediately necessary to preserve the security and safety of the inmates of staff, which is inconsistent with the Consent Decree, such modification may be implemented on an emergency basis without prior approval of the Court, provided that approval is sought promptly thereafter. After appropriate review, the Court may delete or alter the modifications to conform to the terms and intent of this decree.
d. The classification system, and any subsequent modifications of the classification system, shall be printed and distributed by defendants to every member of the plaintiff class.
8. Staffing a. Custody staff for death row shall receive administrative segregation training within three months of being
4

McDonald v. Armontrout, Not Reported in F.Supp. (1989)
assigned to death row. Administrative segregation training shall include instruction as to the special needs of death row inmates, the appellate and post-conviction process in death cases, and the requirements of this decree.
9. Recreation a. Minimum Custody death-sentenced inmates will be given the same opportunity for outdoor and indoor recreation at PCC recreational facility as are general population PCC inmates.
b. Medium Custody death-sentenced inmates will be given the opportunity for indoor and outdoor recreation during their day room access.
c. Close Custody and administration segregation death-sentenced inmates will be given the opportunity for one hour of recreation every other day.
10. Fire Safety a. A fire safety evaluation of death row will be conducted jointly by defendants’ consultant, Mr. Donald Bussel, and by plaintiffs’ consultant, Mr. Ward Duel. Defendants will pay Mr. Duel’s reasonable fees and expenses for his work on the evaluation and subsequent inspections. The consultants will prepare a report, recommending necessary fire safety measures which (i) must be implemented immediately, (ii) must be implemented in the near future, and (iii) are to be achieved by capital improvements. Defendants will implement all fire safety measures recommended by the consultants, and will make a good faith effort to obtain appropriations from the Missouri General Assembly (see pp. 2–3, supra ) if any such measures require capital improvements.
b. If the two consultants disagree as to whether any particular fire safety measure is necessary, the disagreement shall be submitted to the Court for resolution. Following adoption of a final fire safety plan, the two consultants shall inspect PCC once to ensure the necessary fire safety measures have been implemented.
11. Visiting *7 a. Defendants will make every effort to make a contact visit available to attorneys who wish to visit a death-sentenced inmate and have notified defendants 48 hours in advance, except that inmates who are on administrative segregation or punitive segregation status shall receive a noncontact visit. All attorney visits for inmates with execution dates will be contact visits.

b. Minimum Custody inmates may have up to 4 contact visits per month which may last up to 4 hours each, with up to 4 visitors each visit. The days these visits may occur will be set by PCC staff.
c. Medium Custody inmates may have up to 2 medium contact visits per month which may last up to hours per visit, with up to 2 visitors each visit. The days these visits may occur will be set by PCC staff.
d. Close Custody and administrative segregation inmates may have 1 no-contact visit per month, lasting 1 hour, with 1 visitor. The day this visit may occur will be set by PCC staff. Close Custody inmates or inmates serving disciplinary segregation time may have contact visitation only in the discretion of the Superintendent of PCC.
12. Education Defendants will provide inmates with an education program for G.E .D.
13. Lighting a. Defendants will supply inmates with light bulbs sufficient to provide 20 footcandles of light at the bed and desk level.
14. Sanitation a. An environmental and sanitation evaluation of death row and all other areas where food for death row inmates is prepared or stored will be conducted jointly by defendants’ consultant, Mr. David Stull (or in his absence another representative of the Missouri Department of Health), and by plaintiffs’ consultant, Mr. Ward Duel. Defendants will pay Mr. Duel’s reasonable fees and expenses for his work on the evaluation and subsequent inspections. The consultants will prepare a report delineating all environmental and sanitary measures which are necessary to protect the health and safety of death row inmates. The report will recommend measures which (i) must be implemented immediately, (ii) must be implemented in the near future and (iii) are to be achieved by capital improvements. The parties will be given an opportunity to comment on the consultants’ recommendations prior to the consultants’ recommendations becoming finalized. Defendants will implement all environmental and sanitary measures recommended by the consultants, and will make good faith efforts to obtain appropriations from the Missouri General Assembly (see pp. 2–3) if any such measures require capital improvements.
b. If the two consultants disagree as to whether a
5

McDonald v. Armontrout, Not Reported in F.Supp. (1989)
particular environmental or sanitary measure is necessary, the disagreement shall be submitted to the Court for resolution. Following adoption of a final environmental and sanitation plan, the two consultants shall inspect PCC once that all necessary environmental and sanitary measures have been implemented.
15. Feeding Defendants will make good faith efforts to provide death row inmates with meals on the same schedule that applies to feeding of general population inmates.
16. Equal Access *8 All inmates on death row shall have equal access to all rights and privileges conferred upon persons within their classification status by this decree, and to all other programs and facilities according to their classification and security status.
17. Inspections Until such time as the Court determines that full compliance has been achieved with all provisions of this decree, the attorneys for the plaintiff class shall be allowed access to the death row walks and recreation areas upon 24–hour advance notice to the attorneys for defendants.
18. Reports For at least six months from the date or final approval of this decree, defendants shall submit a quarterly report to the Court, with a copy to the attorneys for the plaintiff class, detailing the state of their compliance with each and every provision of this decree.

19. Implementation a. Counsel for the plaintiff class will bring any complaints of noncompliance to the attention of defendants’ counsel prior to initiating any court action. The parties will attempt in good faith to resolve all such disputes between themselves in the first instance.
b. Defendants’ counsel will notify counsel for the plaintiff class of any proposed modification of the rights and privileges accorded plaintiffs by this decree prior to seeking formal court approval for any such modifications. The parties will attempt in good faith to resolve all disputes concerning such modifications between themselves in the first instance.
c. If defendants are unable to implement fully the terms of this decree, despite their best efforts, plaintiffs are free to seek such other and further relief from the Court as may be necessary to bring about elimination of the conditions which this decree seeks to remedy.
20. Jurisdiction This Court shall transfer jurisdiction over this matter to the Eastern District of Missouri to insure compliance with the foregoing provisions until such time as all provisions of this decree have been fully implemented.
It is hereby
ORDERED that the Modified Consent Decree is approved. It is further
ORDERED that plaintiffs’ motions for a protective order, to compel enforcement of consent judgment, sanctions, a temporary restraining order, and to replace plaintiffs’ counsel are denied. It is further
ORDERED that this action is transferred to the United States District Court for the Eastern District of Missouri.
	  

6

 
 McDonald v. Armontrout

• m

•• •• •• • • •

PC-MO-001-001

IN THE
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

SAMUEL L. MCDONALD, et al.,

)

Plaintiffs, )

v.

)

BILL ARMONTROUT, et al.,

)

Defendants. )

Case No. 85-4422-CV-C-5

CONSENT DECREE This cause originated with the filing of a complaint on August 19, 1985. Plaintiffs requested that they be permitted to proceed as a class pursuant to Federal Rules of Civil Procedure 23 (a), and 23(b)(l) and (2). On January 15, 1986, the Court (the Honorable Scott 0. Wright) granted plaintiffs' motion for class action status and certified a class comprised of (i) all inmates presently confined under sentence of death at the Missouri State Penitentiary (MSP) , and (ii) all inmates who may in the future be confined under sentence of death by the Missouri Department of Corrections and Human Resources (MDCHR), either at MSP or elsewhere. Plaintiffs alleged in their complaint that they and all other inmates confined under sentence of death at MSP have suffered and are suffering violations of their rights under the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. Defendants denied that any violations of plaintiffs' constitutional rights have occurred.

Desiring an amicable settlement of this matter, the parties herein have agreed to the entry of this decree without trial, the taking of any evidence, adjudication, or the admission of liability by any party with respect to any claim or allegation made in this action. Although no findings of fact or conclusions of law are made by the Court, this decree contemplates and is intended to eliminate any conditions of confinement which may deny the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States.
Certain provisions of this agreement may depend upon future appropriations by the Missouri General Assembly 'for implementation. Defendants agree that they shall, in good faith, request with the utmost speed such additional appropriations as may be necessary to put into effect all components of this decree, by requesting such appropriations in the supplemental appropriations request to be presented to the next session of the Missouri General Assembly, which convenes no later than January of 1987. Defendants will in good faith make their best efforts to secure such appropriations from the Missouri General Assembly. If sufficient funds are not appropriated in the next legislative session, defendants shall make an ongoing effort to seek necessary funds. If, however, provisions of this decree are not put into effect due to the Missouri General Assembly's failure to appropriate the necessary funds, despite defendants' best efforts to secure such funds, defendants shall not be found in contempt. In that event, defendants shall, to the extent
-2-

possible within the current resource levels and within future appropriation levels, implement the provisions of this decree.
WHEREFORE, upon the consent of the parties, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
I. This Court has jurisdiction over the subject matter of this action and of all parties hereto.
II. A. Plaintiffs The plaintiff class consists of (i) all inmates presently confined under sentence of death at MSP and (ii) all inmates who may in the future be confined under sentence of death by the MDCHR, either at MSP or elsewhere. B. Defendants Defendants are the Governor of the State of Missouri, the Director of MDCHR, the Director of the Missouri Division of Adult Institutions within MDCHR, and the Warden of MSP. Pursuant to Rule 25(d), F.R.Civ.P., the successors in office of the above-named defendants will automatically be substituted as parties in this suit and in this decree.
III. Terms 1. Mutuality a. The responsibilities imposed by this decree are mutua1. b. Damage to or abuse of programs, facilities or equipment by inmates will be a defense in any judicial
-3-

proceedings on their behalf to cure defects in such programs, facilities or equipment occasioned by that abuse.
c. In the event of continued or consistent abuse or misuse, the nature of which renders such programs, facilities or equipment a risk to the safety and security of inmates, staff or the institution, those programs, facilities or equipment may be substantially modified, suspended, or discontinued to the extent necessary to restore said safety and security. Defendants shall give notice to plaintiffs' counsel and file a request with the Court for modifying, suspending, or discontinuing program; facilities, or equipment required by this decree. It is contemplated by the parties to this decree that damage, abuse, or misuse by a single individual will normally be handled by appropriate action as to that individual.
. :egal Mail and Materials a. Legal mail which is readily identifiable as such will not purposefully be opened in the mail room. Legal mail shall only be opened in the presence of the inmate as required by regulation 218.010 (not in CSR) . [As used in this decree, the term "not in CSR" refers to regulations of MDCHR which are not published in the Missouri Code of State Regulations (CSR).] b. Legal materials which an inmate has in his cell will not be read during searches or ' shakedowns. Legal materials will, however, be searched for contraband during cell searches and shakedowns. Reasonable care shall be taken to avoid damage or scattering of legal materials.
-4-

c. Inmates who believe their legal or personal mail has been improperly handled by prison staff shall notify the prison officials in writing either by letter or by grievance.
3. Religious Services a. A privacy room will be provided for each side of
death row. This room will be used for religious services, religious counseling, psychological and psychiatric counseling, interviews and evaluations, medical examinations, and haircuts.
b. Up to two inmates at a time will be allowed to participate in religious services in the privacy rooms until such time as the indoor recreation area in Housing Unit 2 is completed (see paragraph 10, infra). Defendants shall reevaluate the possibility of increasing the number of inmates allowed to participate at that time.
4. Telephone Access a. As of September 1, 1986, there will be a telephone
jack between every two cells on each of the walks of death row, and at least one telephone for each walk. Inmates shall have access to telephones on each walk from 8:00 a.m. to 10:30 a.m. and 12:00 p.m. to 3:00 p.m., seven days a week, and shall be allowed to make collect telephone calls.
b. Calls other than those to attorneys shall be allowed to last at least twenty minutes. After twenty minutes, telephone calls shall be terminated only if necessary to accommodate other inmates who wish to place telephone calls the same day.

c. Telephone calls to attorneys shall be of unlimited duration.
5. Medical Services a. Physical examinations shall be given to all con-
senting inmates unless the inmate had a physical examination during the month of April 1986. These physical examinations shall be completed by August 1, 1986.
b. Doctor's sick call shall take place in the privacy rooms each week, absent a medical or custody emergency which ^—. prevents the medical doctor from coming to death row. In the event of such an emergency, doctor's sick call will be rescheduled as soon as possible. Sick call conducted by Medical Assistants shall continue to take place Monday through Friday.
•—
c. Until such time as the privacy rooms on each side of death row are completed, doctor's sick call shall occur behind a privacy screen in the Lieutenant's office (which is located in the lobby area of death row).
d. All medical and psychological records for death sentenced inmates shall be stored in a locked fire-safe file on death row. Neither custody officers nor inmate workers shall have access to these files, except that custody officers shall be permitted to carry these files when escorting an inmate to the hospital at MSP or elsewhere.
e. A Medical Assistant shall pass out the evening medications rather that a custody officer. The medication shall be handed directly to the inmates. Defendants will make a good faith effort to obtain appropriations from the Missouri General
-6-

Assembly (see pp. 2-3, supra) for an additional Medical Assistant.
f. During sick call, inmates may obtain forms from the Medical Assistant to attend the dental or eye clinic. These request forms may also be obtained from the death row caseworkers or custody staff. After obtaining and filling out the request form, the inmate shall send the request to the hospital. Within eight days of receipt of the request, the inmate shall be escorted to the appropriate clinic.
g. Medication prescribed for an inmate shall be dispensed within 24 hours, or sooner if required by the prescription, and after that shall be dispensed at the intervals required on the prescription.
6. Mental Health Care a. A mental health care provider who has at least a
Master's Degree in psychology and at least one year of professional experience or its equivalent shall be assigned to death row to provide the services set forth below.
b. All inmates shall be psychologically evaluated by August 1, 1986, excepting those who have been evaluated since January 1, 1986, and those who decline to participate. All newly admitted inmates shall be evaluated within two weeks as a part of the reception process. Defendants reserve the right to seek a court order in state court to provide treatment to an inmate who declines such care if defendants believe such care is medically advisable.
-7-

c. The psychologist shall make referrals to an MSP psychiatrist whenever the evaluations or classification team meetings (see paragraphs 6(e) and 7, infra) indicate that psychiatric care is advisable.
d. The psychiatrist shall make referrals to the Fulton State Mental Hospital as appropriate.
e. The death row psychologist shall sit on the death row classification committee (see paragraph 7, infra).
f. The death row psychologist shall write and implement treatment programs when appropriate after evaluating each inmate. In the event that medication is a part of the treatment program, a referral shall be made to the psychiatrist who shall evaluate the inmate prior to prescribing medication.
g. All prescriptions for psychotropic, antipsychotic or hypnotic medication will be reviewed on a regular basis by an MSP psychiatrist.
h. The caseworkers who are assigned to death row shall be given mental health care training concerning the detection of mental health problems, and death and dying.
i. All inmates not under treatment shall be reevaluated by the death row psychologist once every year and, if necessary, shall be provided treatment as described above.
j. All medical and psychological records shall be confidential as provided in §§ 217.075 and 217.205, RSMo (Cum. Supp. 1984).
—8 —

7. Classification a. On March 25, 1986, a classification system was es-
tablished to separate death-sentenced inmates into three different categories. The system was intended to give certain inmates greater privileges commensurate with good behavior. This system envisions three levels of inmates designated as Regular Custody, Close Custody, and No-Contact Custody (which may include some or all of the Regular Custody privileges).
b. Defendants will amend the classification system [designated as Regulation 212.030 (not CSR)] forthwith to reflect the terms of this decree. A draft of the amended classification system will be provided to counsel for the plaintiff class, who will be given an opportunity to comment. The parties will endeavor in good faith to resolve any and all disputes concerning the terms of the amended classification system prior to its filing with the Court.
c. Any future modifications to the classification system proposed by defendants shall be furnished immediately to counsel for plaintiff class, and counsel shall be afforded an opportunity to comment before any such modifications are adopted.
d. Defendants shall seek prior approval of the Court for any modifications of the classification system which are inconsistent with the terms and intent of this decree. If defendants believe that any such modification is immediately necessary to preserve the security and safety of the inmates or staff, such modification may be implemented on an emergency
-9-

basis without prior approval of the Court, provided that approval is sought promptly thereafter. After appropriate review, the Court may delete or alter the modifications to conform to the terms and intent of this decree.
e. The classification system, and any subsequent modifications of the classification system, shall be printed and distributed by defendants to every member of the plaintiff class.
8. Staffing a. Eleven additional officers shall be assigned to
death row effective July 1, 1986. An additional seven officers shall be assigned to death row on September 1, 1986.
b. Custody staff for death row shall receive administrative segregation training within three months of being assigned to death row. Administrative segregation training shall include instruction as to the special needs of death row inmates, the appellate and post-conviction process in death cases, and the requirements of this decree. The custody staff presently assigned to death row will be rotated as necessary to enable them to receive such training.
-9i Recreation a. As of July 1, 1986, Regular Custody death-
sentenced inmates will be given the opportunity for eight hours of outdoor recreation per week and eight hours of indoor recreation per week. In the absence of a pattern of securitythreatening incidents, Regular Custody death-sentenced inmates will be given the opportunity for twelve hours of outdoor
-10-

recreation per week and twelve hours of indoor recreation per week as of April 1, 1987. In the absence of a pattern of security-threatening incidents, Regular Custody inmates will be given the opportunity for sixteen hours of outdoor recreation per week and sixteen hours of indoor recreation per week as of January 1, 1988.
b. As of July 1, 1986, Close Custody death-sentenced inmates will be given the opportunity for four hours of outdoor recreation per week and four hours of indoor recreation per week. In the absence of a pattern of security-threatening incidents, Close Custody death-sentenced inmates will be given the opportunity for six hours of outdoor recreation per week and six hours of indoor recreation per week as of April 1, 1987. In the absence of a pattern of security threatening incidents, Close Custody death-sentenced inmates will be given the opportunity for eight hours of outdoor recreation per week and eight hours of indoor recreation per week as of January 1, 1988.
c. After January 1, 1988, defendants will continue to review the feasibility of expanding recreation time consistent with security and the well being of the inmates.
d. Defendants will modify the outdoor recreation area between Housing Unit 2 and Housing Unit 3 to grade the land and to provide three yards for Regular Custody and Close Custody inmates. Two of the yards will contain at least a paved basketball area and also a grassy area. The third yard will contain at least a weight machine and a grassy area. Inmates will be provided with basketballs, footballs, softballs and gloves for
-11-

use in these three yards. Defendants will provide six individual recreation yards for No-Contact Custody inmates only, each measuring 9 feet by 20 feet. Three of these individual yards will be paved and contain a basketball goal, and No-Contact Custody inmates will be provided with basketballs for use in these yards.
e. During the period when the outdoor recreation area is being modified, defendants will make a good faith effort not to disrupt the inmates1 recreation any more than is necessary for the safety and security of the inmates, staff and civilian workers.
f. At present inmates are recreated in groups of two. In September of 1986 defendants shall review this recreational program for the purpose of determining whether four inmates may recreate together. This review shall be based upon a study of any security-threatening incidents which may have occurred. In the absence of a pattern of such incidents, defendants shall provide both indoor and outdoor recreation in groups of at least four no later than September 1, 1986. After September 1, 1986, defendants shall continue to review the security of the recreation program to determine whether recreation in groups larger than four is feasible.
10. Facility For Indoor Recreation a. At present each walk on death row has an indoor
weight room equipped with a weight machine. Defendants shall install exhaust fans in the weight rooms which have windows. Defendants agree to make good faith efforts to obtain
-12-

appropriations from the Missouri General Assembly (see pp. 2-3 supra) to provide inmates with expanded indoor recreation facilities by converting a space in Housing Unit 2 into an indoor recreation area of approximately 60 feet by 40 feet for use by the inmates. This facility shall contain a variety of recreational equipment such as basketball and goal, ping-pong table, weight machines, exercycle, punching bag, television, card tables with chairs, and table games.
11. Plumbing a. No later than September 1, 1986, defendants shall
complete their present program of installing single traps and pipe chases in the toilets in all cells on death row, replacing the present system whereby four toilets empty into one trap. Defendants agree to make a good faith effort to obtain appropriations from the Missouri General Assembly (see pp. 2-3, supra) for funds to replace completely the toilets, sinks, and plumbing system on death row.
b. Defendants will use good faith efforts to maintain all plumbing in operational condition.
12. Renovation Defendants will continue their program of renovating all
four walks of death row. The renovating includes (a) repainting the entire area, (b) installation of fluorescent lights on the walks, (c) new electric light switches in the cells, (d) exhaust fans, (e) shelves in the cells, (f) replacement of all beds and mattresses, (g) telephone jacks between every two cells, and
-13-

(h) clear window panes in all windows. These renovations will be completed no later than October 1, 1986.
13. Shower Renovation The showers located in death row shall be renovated. This renovation will include the installation of a ventilation system for the individual showers. Old paint will be removed and the walls, floors and ceilings will be treated with an epoxy waterproof paint. Further, plumbing and fixtures shall be replaced to assure adequate water pressure. The renovation of the showers is scheduled to begin in September 1986. 14. Food Service Ramp Defendants will construct a food service ramp and door to permit the entry of a steam cart into the death row unit, to be completed by September 1, 1986. 15. Fire Safety
a. A fire safety evaluation of death row will be conducted jointly by defendants' consultant, Mr. Donald Bussel, and by plaintiffs' consultant, Mr. Ward Duel. Defendants will pay Mr. Duel's reasonable fees and expenses for his work on the evaluation and subsequent inspections. The consultants will prepare a report by July 1, 1986, recommending necessary fire safety measures which (i) must be implemented immediately, (ii) must be implemented in the near future, and (iii) are to be achieved by capital improvements. Defendants will implement all fire safety measures recommended by the consultants, and wil; make a good faith effort to obtain appropriations from th<
-14-

Missouri General Assembly (see pp. 2-3, supra) for all such measures which require capital improvements.
b. If the two consultants disagree as to whether any particular fire safety measure is necessary, the disagreement shall be submitted to the Court for resolution. Following adoption of a final fire safety plan, the two consultants shall inspect MSP on a quarterly basis for at least one year or until such later date as the parties are jointly satisfied that all necessary fire safety measures have been implemented.
16. Visiting a. Defendants will make every effort to make a con-
tact visit available to attorneys who wish to visit a death sentenced inmate and have notified defendants 4 8 hours in advance. If the attorney visiting rooms in the control center area are in use, the parole hearing room or the privacy rooms on death row will be used instead if at all possible. All attorney visits for inmates with execution dates will be contact visits.
b. Inmates classified as Regular Custody or Regular Custody No-Contact shall receive at least 6 contact visits per year. To insure contact visits lasting 3 hours per visit, defendants shall schedule these visits. The death row caseworkers will consult with the inmates to facilitate the scheduling of these visits.
c. Contact visits are to be apportioned throughout the year with no more than one contact visit per month except in the discretion of the Warden of MSP.
-15-

d. Close Custody inmates or inmates serving punitive segregation time for disciplinary infractions may have contact visitation only in the discretion of the Warden of MSP.
e. Defendants will install a new screen in the noncontact visiting area to promote greater visibility.
17. Education Defendants will provide inmates with an education television channel to include programs for G.E.D., Positive Mental Attitude (P.M.A.) and religious broadcasting. 18. Lighting
a. Defendants will supply inmates with light bulbs in wattages of their choice up to 200 watts. If an inmate's desired wattage is not available, defendants shall make a good faith attempt to obtain it.
b. Defendants shall reevaluate the number of security fluorescent lights needed on the outer walk areas of the renovated walks of death row. Any such lights that are not necessary for the security of those walks shall be turned off between the hours of 11:00 p.m. and 7:00 a.m.
19. Sanitation a. An environmental and sanitation evaluation of
death row and all other areas where food for death row inmates is prepared or stored will be conducted jointly by defendants' consultant, Mr. David Stull (or in his absence another representative of the Missouri Department of Health), and by plaintiffs' consultant, Mr. Ward Duel. Defendants will pay Mr. Duel's reasonable fees and expenses for his work on the evaluation and
-16-

subsequent inspections. The consultants will prepare a report by July 1,1986, delineating all environmental and sanitary measures which are necessary to protect the health and safety of death row inmates. The report will recommend measures which (i) must be implemented immediately, (ii) must be implemented in the near future and (iii) are to be achieved by capital improvements. The parties will be given an opportunity to comment on the consultants' recommendations prior to the consultants' recommendations becoming finalized. Defendants will implement all environmental and sanitary measures recommended by the consultants, and will make good faith efforts to obtain appropriations from the Missouri General Assembly (see pp.2-3, supra) for all such measures which require capital improvements.
b. If the two consultants disagree as to whether any particular environmental or sanitary measure is necessary, the disagreement shall be submitted to the Court for resolution. Following adoption of a final environmental and sanitation plan, the two consultants shall inspect MSP on a quarterly basis for at least one year or until such later date as the parties are jointly satisfied that all necessary environmental and sanitary measures have been implemented.
20. Window Screening Defendants will undertake an immediate evaluation of the
three layers of screening over the death row windows, and will remove all screening which is not essential to security. It is contemplated that this review will result in the removal as soon
-17-

as practicable of at least the expanded metal layer of screening on the C-North, C-South, and B-North walks. The windows will be washed from the outside with a high-power hose at least once each year.
21. Feeding Defendants will make good faith efforts to provide death row inmates with meals on the same schedule that applies to feeding of general population inmates. Until such time as this schedule is achieved, defendants will continue to provide deathsentenced inmates with an evening snack. The snack will be served in a sanitary manner. 22. Equal Access All inmates on death row shall have equal access to all rights and privileges conferred upon persons within their classification status by this decree, and to all other programs and facilities according to their classification and security status. 23. Inspections Until such time as the Court determines that full compliance has been achieved with all provisions of this decree, the attorneys for the plaintiff class shall be allowed access to the death row walks and recreation areas upon 24 hour advance notice to the attorneys for defendants. 2 4. Reports For at least two years from the date of final approval of this decree, defendants shall submit a quarterly report to the
-18-

Court, with a copy to the attorneys for the plaintiff class, detailing the state of their compliance with each and every provision of this decree. The parties will thereafter jointly decide on the need for and frequency of compliance reports.
25. New Facilities If defendants at some future date determine that it is
necessary to expand death row housing beyond its present lo cation (Housing Unit 3, section 3C, walks B-North, B-South, C-North, C-South), or move death row to a new location, defendants shall file with the Court and serve upon counsel for the plaintiff class a plan for implementation of all rights and privileges conferred by this decree at the new or additional location(s). Defendants may begin housing death-sentenced inmates in such new or additional location(s) upon approval of the plan by the Court.
26. Implementation a. All provisions of this decree which are not ac-
companied by an implementation date shall be implemented as soon as practicable and no later than September 1, 1986.
b. Counsel for the plaintiff class will bring any complaints of non-compliance to the attention of defendants' counsel prior to initiating any court action. The parties will attempt in good faith to resolve all such disputes between themselves in the first instance.
c. Defendants' counsel will notify counsel for the plaintiff class of any proposed modification of the rights and privileges accorded plaintiffs by this decree prior to seeking
-19-

formal court approval for any such modifications. The parties will attempt in good faith to resolve all disputes concerning such modifications between themselves in the first instance.
d. If defendants are unable to implement fully the terms of this decree, despite their best efforts, plaintiffs are free to seek such other and further relief from the Court as may be necessary to bring about elimination of the conditions which this decree seeks to remedy.
27. Jurisdiction This Court shall retain jurisdiction over this matter to
insure compliance with the foregoing provisions until such time as all provisions of this decree have been fully implemented.
28. Attorneys' Fees The parties agree to attempt to negotiate attorneys' fees
and costs. Should the parties be unable to reach a settlement as to attorneys' fees and costs within 120 days of final approval of this decree, the matter shall be submitted to the Court for its determination; provided, however, that this time period may be extended by stipulation of the parties if approved by the Court.

SAMUEL L. McDONALD, Plaintiff
cf-'
RAYFIELT) NEWLON, Plaintiff

DICK MOORE, Director MDCHR
,/Director of Adult , MDCHR

-20-

THOMAS BATTLE, Plaintiff

BILL ARMONTROUT, Warden MSP

7 ALAN J . / B A N N T S T E R ,
RICHARD H. SINDEL Sindel & Sindel, P.C. 15A North Meramec, Suite 200 Clayton, Missouri 63105 314-721-6040

N D. ASHCROFT, Governor
WILLIAM L. WEBSTER Attorney Genera
RSCHEL[ Attorney General

J

L. CHAMBERS

JOEL BERGER

NAACP Legal & Defense

Educational Fund, Inc.

99 Hudson Street, 16th Floor

New York, New York 10013

212-219-1900

ATTORNEYS FOR PLAINTIFFS

DEBORAH NEFF (71 Assistant Attorney General P.O. Box 8 99 Jefferson City, Missouri 65102 314-751-3321
ATTORNEYS FOR DEFENDANTS

-21-

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

SAMUEL L. MCDONALD, et al., )

Plaintiffs, )

V.

)

BILL ARMONTROUT, et al.,

)

Defendants. )

No. 85-4422-CV-C-5

CONSENT DECREE FOR CAPITAL PUNISHMENT INMATES AT FRDC This cause originated with the filing of a complaint on August 19, 1985. Plaintiffs requested that they be permitted to proceed as a class pursuant to Federal Rules of Civil Procedure 23 (a), and 23 (b) (1) and (2). On January 15, 1986, the Court (the Honorable Scott 0. Wright) granted plaintiffs' motion for class action status and certified a class comprised of (i) all inmates presently confined under sentence of death at the Missouri State Penitentiary (MSP), and (ii) all inmates who may in the future be confined under sentence of death by the Missouri Department of Corrections and Human Resources (MDCHR), either at MSP or elsewhere. Plaintiffs alleged in their complaint that they and all other inmates confined under sentence of death at MSP have suffered and are suffering violations of their rights under the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. Defendants denied that any violations of plaintiffs' constitutional rights have occurred.
Attachment A

Desiring an amicable settlement of this matter, the parties herein agreed to the entry of a decree and filed the same on May 22, 1986, without trial, the taking of any evidence, adjudication, or the admission of liability by any party with respect to any claim or allegation made in this action. Although no findings of fact or conclusions of law were made by the Court, this decree contemplated and was intended to •eliminate any conditions of confinement which may have denied the inmates sentenced to death the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States. The court approved this decree with addendum on January 7, 1987.
Certain provisions of this agreement may depend upon future appropriations by the Missouri General Assembly for implementation. Defendants agree that they shall, in good faith, request with the utmost speed such additional appropriations as may be necessary to put into effect all components of this decree, by requesting such appropriations in a request to be presented to the next session of the Missouri General Assembly, which convenes no later than in January of 1990. Defendants will in good faith make their best efforts to secure such appropriations from the Missouri General Assembly. If sufficient funds are not appropriated in the next legislative session, defendants shall make an ongoing effort to seek necessary funds. If, however, provisions of this decree are not put into effect due to the Missouri General Assembly's failure
-2-

r

to appropriate the necessary funds, despite defendants' best

efforts to secure such funds, defendants shall not be found in

contempt. In that event, defendants shall, to the extent

possible within the current resource levels and within future

appropriation levels, implement the provisions of this decree.

WHEREFORE, upon the consent of the parties, it is hereby

ORDERED, ADJUDGED, and DECREED as follows:

I .

This Court has jurisdiction over the subject ntatter of this

action and of all parties hereto. II.

A. Plaintiffs

•' ""

The plaintiff class consists of (i) all inmates presently

confined under sentence of death at MSP and (ii) all inmates who

may in the future be confined under sentence of death by the

MDCHR, either at PCC or elsewhere.

B. Defendants

Defendants are the Governor of the State of Missouri, the

Director of MDCHR, the Director of the Missouri Division of

Adult Institutions within MDCHR, and the superintendent of PCC.

Pursuant to Rule 25(d), F.R.Civ.P., the successors in

office of the above-named defendants will automatically be

substituted as parties in this suit and in this decree.

-3-

•O7

III.

Terms

1. Mutuality

a. The responsibilities imposed by this decree are mutual.

b. Damage to or abuse of programs, facilities or equipment

by inmates will be a defense in any judicial proceedings on

their behalf to cure defects in such programs, facilities or

equipment occasioned by that abuse.

c. In the event of continued or consistent abuse or

misuse, the nature of which renders such programs, facilities or

equipment a risk to the safety and security of inmates, staff or

the institution, those programs, facilities or equipment may be

/ "~

substantially modified, suspended, or discontinued to the extent

necessary to restore said safety and security. Defendants shall

give notice to plaintiffs' counsel and file a request with the

Court for modifying, suspending, or discontinuing programs,

facilities, or equipment required by this decree. It is

contemplated by the parties to this decree that damage, abuse,

or misuse by a single individual will normally be handled by

appropriate action as to that individual.

2. Legal Mail and Materials

a. Legal mail which is readily identifiable as such will

not purposefully be opened in the mail room. Legal mail shall

only be opened in the presence of the inmate as required by

regulation IS13-1.1.

f-l b. Legal materials which an inmate has in his cell will
not be read during searches or shakedowns. Legal materials will, however, be searched for contraband during cell searches and shakedowns. Reasonable care shall be taken to avoid damage or scattering of legal materials.
c. Inmates who believe their legal or personal mail has been improperly handled by prison staff shall notify the prison officials in writing either by letter or by grievance. 3. Religious Services
a. A privacy room will be provided for the capital punishment inmates except those in the punitive segregation unit. This room may be used for religious services, religious counseling, psychological and psychiatric counseling, interviews and evaluations, and medical examinations. Up to two inmates shall be permitted to attend a group religious service. Defendants shall evaluate this number on a yearly basis to see whether security and management consideration would allow the increase of that number for any of the different security levels of death sentenced inmates. 4. Telephone Access

a. Capital punishment inmates shall have access to

telephones to make collect telephone calls during their

recreation hours.

b.

Close Custody, administrative segregation, and

disciplinary segregation inmates shall have access to telephones

-5-

to make collect telephone calls by making arrangements with their ca.eeworker or other prison staff.
c. Telephone calls to attorneys shall be of unlimited duration unless it becomes necessary to terminate the call in order to accommodate another inmate who needs to place a call to his attorney on the same day.
d. Calls other than those to attorneys shall be allowed to last twenty minutes or less in light of existing circumstances, availability of eqiupment and number of inmates wi'shing to use the telephone. Telephone calls under 20 minutes shall be terminated if necessary to accommodate other inmates who wish to place telephone calls the same day, or if security needs of the prison demand such termination. 5. Medical Services
a. . Doctor's sick call shall take place in the prison clinic each week, absent a medical or custody emergency which prevents the medical doctor from conducting said sick call. In the event of such an emergency, doctor's sick call will be rescheduled as soon as possible. Sick call conducted by staff shall continue to take place Monday through Friday in either the prison clinic or the C.P. inmates' unit.
b. Neither custody officers nor inmate workers shall have access to medical or psychological records for capital punishment inmates, except that custody officers shall be permitted to carry these files when escorting an inmate to any destination where said records are needed.
-6-

c. A medical staff shall pass out the evening medications rather that a custody officer except in the event of a security emergency. The medication shall be handed directly to the inmates.
d. During sick call, inmates may obtain medical services request forms from medical staff to attend the dental or eye clinic. These request forms may also be obtained from the death row caseworkers or custody staff. After obtaining and filling out the request form, the inmate shall send the request to the hospital. Within eight working days of receipt of the request, the inmate shall be escorted to the appropriate clinic.
e. Medication prescribed for an inmate shall be dispensed within 48 hours, or sooner if required by the prescription, and after that shall be dispensed at the intervals required on the prescription. 6. Mental Health Care
a. A mental health care provider who has at least a Master's Degree in psychology and at least one year of professional experience or its equivalent shall be assigned to the capital punishment inmates to provide the services set forth below.
b. All newly admitted capital punishment inmates shall be psychologically evaluated within two weeks as a part of the reception process. Defendants reserve the right to seek a court order in state court to provide- treatment to an inmate who
-7-

declines such care if defendants believe such care is medically advisable.
c. The psychologist shall make referrals to a psychiatrist whenever the evaluations or classification team meetings (see paragraphs 6(e) and 7, infra) indicate that psychiatric care is advisable.
d. The psychiatrist shall make referrals to the a State Mental Hospital as appropriate.
e. Apsychologist shall sit on the death row classification committee, but is not necessarily a voting member (see paragraph 7, infra).
f. The psychologist shall write and implement treatment programs when appropriate after evaluating each inmate. In the event that medication is a part of the treatment program, a referral shall be made to a psychiatrist who shall evaluate the inmate prior to prescribing medication.
g. All prescriptions for psychotropic, antipsychotic or hypnotic medication will be reviewed on a regular basis by a psychiatrist.
h. The caseworkers who are assigned to the capital punishment inmates shall be given mental health care training concerning the detection of mental health problems, and death and dying.
i. All capital punishment inmates not under treatment shall be reevaluated by the psychologist once every year and, if necessary, shall be provided treatment as described above.
-8-

• i; ; v
«^~<-
!

j . All medical and psychological records shall be

confidential as provided in §217.075 and § 217.205, RSMo (1986).

7. Classification

a.

The Classification Policy at PCC FRDC inmates

contemplates 4 classifications: Minimum Custody CP; Medium

Custody CP; Close Custody CP; Administrative Segregation CP.

Additionally, death sentenced inmates can be placed on

disciplinary segregation status for 10 days or less pursuant to

Division Regulation IS21-1.4 (212.010). Protective Custody or

security needs may also require an individual be placed on no

contact status with one or more death sentenced inmates (said

status may include some or all of one privileges of the

classification the inmate is assigned when placed on full or

partial no contact status).

The Classification Policy is intended to give inmates

greater privileges commensurate with good behavior.

b. Any future modifications to the classification system

proposed by defendants shall be furnished immediately to counsel

for plaintiff class, and counsel shall be afforded at least 7

days in which to comment before any such modifications are

adopted.

c. Defendants shall seek prior approval of the Court for

any modifications of the classification system which are

inconsistent with the terms and intent of this decree,

otherwise court approval is not warranted. If defendants

believe that modification is immediately necessary to preserve

-9-

the security and safety of the inmates or staff, which is

inconsistent with the Consent Decree, such modification may be

implemented on an emergency basis without prior approval of the

Court, provided that approval is sought promptly thereafter.

After appropriate review, the Court may delete or alter the

modifications to conform to the terms and intent of this decree.

d.

The classification system, and any subsequent

modifications of the classification system, shall, be printed and

distributed by defendants to every member of the plaintiff class.

8. Staffing

a. Custody staff for the capital punishment inmates shall

receive instruction as to the special needs of death row

inmates, the appellate and post-conviction process in death

cases, and the requirements of this decree.

9.j Recreation

a. Minimum (formerly Medium) Custody death sentenced

inmates will be given the opportunity for 16 hours of outdoor

and 16 hours indoor recreation.

b. Medium Regular Custody death sentenced inmates will be

given the opportunity for 10 hours of indoor and 10 hours of

outdoor recreation a week.

c. Close Custody and administrative segregation capital

punishment inmates will be given the opportunity for one hour of

recreation every other day.

-10-

d.

Protective Custody inmates will be given the

opportunity for recreation commenserate with their status unless

security needs require that recreation be reduced.

10. Fire Safety

a. A fire safety evaluation of the capital punishment unit

will be conducted jointly by defendants' consultant and

plaintiffs' consultant.

Defendants shall pay plaintiffs'

consultant a reasonable fee and expenses for his work. The

consultants may submit a report if appropriate. If a report is

necessary, it shall follow the format of the reports filed

pursuant to the original Consent Decree. If the parties

consultants disagree about the necessity of a report or the fire

safety issue, the disagreement shall be submitted to the court

for resolution.

b. If the two consultants disagree as to whether any

particular fire safety measure is necessary, the disagreement

shall be submitted to the Court for resolution. Following

adoption of a final fire safety plan, the two consultants shall

inspect PCC once to ensure the necessary fire safety measures

have been implemented.

11. Visiting

a. Defendants will make every effort to make a contact

visit available to attorneys who wish to visit a capital

punishment inmate and have notified defendants 48 hours in

advance, except that inmates who are on administrative"

segregation or punitive segregation status shall receive a

-11-

noncontact visit.

All attorney visits for inmates with

execution dates will be contact visits.

b. Minimum Custody inmates may have up to 2 contact visits

per month, with up to 4 visitors each visit. The days these

visits may occur will be set by prison staff. Non-contact

visits may occur at the discretion of the prison's

superintendent or his designate.

c. Medium Custody inmates may have up to 2. medium contact

visits per month which may last up to 2 hours per visit, with up

to 2 visitors each visit. The days these visits may occur will

be set by prison staff.

d. Close Custody and administrative segregation inmates

may have 1 no contact visit per month, lasting 1 hour, with 1

visitor. The day this visit may occur will be set by prison

staff. Close Custody inmates or inmates serving disciplinary

segregation time may have contact visitation only in the

discretion of the prison superintendent.

12*. Education

Defendants will provide inmates with an education program

for G.E.D.

13. Lighting

a. Defendants will supply inmates with light bulbs

sufficient to provide 20 footcandles of light at the bed and

desk level.

-12-

14. Sanitation

a. An environmental and sanitation evaluation of the

capital punishment unit and all other areas where food for

capital punishment inmates is prepared or stored will be

conducted jointly by defendants' consultant and plaintiffs'

consultant.

Defendants will pay plaintiffs' consultant

reasonable fees and expenses for their work. The consultants

may submit a report if appropriate. If a report is necessary,

it shall follow the format of the reports filed pursuant to the

original Consent Decree. If the parties' consultants disagree

about the necessity of a report or the fire safety issue, the

disagreement shall be submitted to the court for resolution.

b. If the two consultants disagree as to whether a

particular environmental or sanitary measure is necessary, the

disagreement shall be submitted to the Court for resolution.

Following adoption of a final environmental and sanitation plan,

the two consultants shall inspect PCC once that all necessary

environmental and sanitary measures have been implemented.

15. Feeding

Defendants will make good faith efforts to provide death

row inmates with meals on the same schedule that applies to

feeding of general population inmates.'

16. Equal Access

All inmates on death row shall have equal access to all

rights and privileges conferred upon persons within their

classification status by this decree, and to all other programs

-13-

and facilities according to their classification and security status. 17. Inspections
Until such time as the Court determines that full compliance has been achieved with all provisions of this decree, the attorneys for the plaintiff class shall be allowed access to the death row walks and recreation areas upon 24 hour advance notice to the attorneys for defendants. 18. Reports
For at least six months from the date or final approval of this decree, defendants shall submit a quarterly report to the Court, with a copy to the attorneys for the plaintiff class, detailing the state of their compliance with each and every provision of this decree. 19. Implementation
a. Counsel for the plaintiff class will bring any complaints of noneompliance to the attention of defendants' counsel prior to initiating any court action. The parties will attempt in good faith to resolve all such disputes between themselves in the first instance.
b. Defendants' counsel will notify counsel for the plaintiff class of any proposed modification of the rights and privileges accorded plaintiffs by this decree prior to seeking formal court approval for any such modifications. The parties will attempt in good faith to resolve all disputes concerning such modifications between themselves in the first instance.
-14-

c. If defendants are unable to implement fully the terms of this decree, despite their best efforts, plaintiffs are free to seek such other and further relief from the Court as may be necessary to bring about elimination of the conditions which this decree seeks to remedy. 20. Jurisdiction
This Court shall transfer jurisdiction over this matter to the Eastern District of Missouri to insure compliance with the foregoing provisions until such time as all provisions of this decree have been fully implemented.
Respectfully submitted, WILLIAM L. WEBSTER Attorney General
DEBORAH NEFF Assistant Attorney General Missouri Bar No. 31381 6th Floor, Broadway Building Post Office Box 899 Jefferson City, Missouri 65102 Phone: (314) 751-3321 ATTORNEYS FOR DEFENDANTS
-15-

 
 >' -is ^ A

STATES DISTRICT COURT
H aWi '1
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

SAMUEL L. MCDONALD, GERALD M.

)

SMITH, RAYFIELD NEWLON, THOMAS

)

BATTLE, and ALAN J. BANNISTER,

)

individually and onbehalf of

)

all other persons similarly

)

situated,

)

)

Plaintiffs, )

v.
)

BILL ARMONTROUT, Warden, Missouri )

State Penitentiary; LEE ROY BLACK, )

Director, Missouri Department

)

of Corrections; DONALD W. WYRICX

Director, Division of Adult Insti

tutions, Missouri Department of )

Corrections; and JOHN D. ASHCROFT, )

Governor, State of Missouri,

)

Defendants. )

CASE NO.
CIVIL RIGHTS CLASS ACTION

COMPLAINT

1. This is a class action on behalf of all prisoners under

sentence of death in the Missouri State Penitentiary, Jefferson

City, Missouri, seeking declaratory and injunctive relief from

the intolerable and unlawful conditions under which they are

confined during the many years that their appeals and post-con-

viction proceedings are pending. The action is brought under 42

U.S.C. §1983 to redrass the violation by defendants, acting under

color of state law, of plaintiffs' rights under the First, Sixth,

Eighth, and Fourteenth Amendments to the Constitution of the

United States.

McDonald v. Armontrout

B H

• • • • • ••

•

PC-MO-001-005

2. Jurisdiction is conferred upon this Court by 28 U.S.C. §§1331, 1343(3) and (4) and 2201.
CLASS ACTION ALLEGATIONS
3. This action is brought as a class action pursuant to Rules 23(a) and (b)(1) and (2) of the Federal Rules of Civil Procedure.
(a) Plaintiffs sue on behalf of all persons who are presently confined under sentence of death in the Missouri State Penitentiary, and on behalf of an unknown number of persons who in the future will be confined under sentence of death by the Missouri Department of Corrections either at the Missouri State Penitentiary or elsewhere.
(b) The class presently consists of approximately 40 members and is likely to grow in size during the pendency of this lawsuit. It is so numerous that joinder of all its members is impracticable.
(c) The conditions and practices that are the basis of this complaint, and the questions of law concerning the constitutionality of those conditions and practices, are common to all members of the class.
(d) Plaintiffs are all death-sentenced prisoners confined in the Missouri State penitentiary. Tneir claims are typical of the claims of the class, and they will fairly and adequately protect the interests of the class. Thay are repre-
- 2-

sented by counsel who are experienced in representation of death-sentenced prisoners and in representation of cases concerning prison conditions.
(e) The prosecution of separate actions by individual members of the class would create a risk of inconsistent adjudications with respect to each which would establish incompatible standards of conduct for defendants.
(f) The prosecution of separate actions by individual members of the class would create a risk of adjudications which as practical matter would be dispositive of the interests of the other members not parties to such adjudications, or would substantially impair or impede their ability to protect their interests.
(g) The defendants have acted or failed to act on grounds generally applicable to all prisoners in their custody who have been sentenced to death, and the appropriate injunctive and declaratory relief would apply to the class as a whole.
• PARTIES A. Plaintiffs
4. Plaintiffs SAMUEL L. MCDONALD, GERALD M. SMITH, RAYFIELD NEWLON, THOMAS BATTLE and ALAN J. BANNISTER are in custody at the Missouri State Penitentiary under sentence of death, awaiting the results of their appeals or post-conviction proceedings.
- 3-

B. Defendants
5. Defendant BILL ARMONTROOT is Warden of the Missouri State Penitentiary. He is responsible for the management and superivision of that facility and for the humane treatment of all prisoners confined therein, including the plaintiff class confined under sentence of death. He has custody and control over plaintiffs.
6. Defendant LEE ROY BLACK is Director of the Department of Corrections of the State of Missouri. He is the chief administrative officer of the Missouri Department of Corrections, which is responsible for the maintenance and operation of all Missouri prisons including the Missouri State Penitentiary.
7. Defendant DONALD W. WYRICK in Director of the Division of Adult Institutions of the Missouri Department of Corrections. He is responsible for the administration of all adult institutions within the Department.
8. Defendant JOHN D. ASHCROFT is Governor of the State of Missouri. He is responsible for the administration of all State departments.
FACTS
9. As a result of defendants' actions or failure to act, the plaintiff class is confined under conditions which are unconscionably .oppressive and degrading and which violate plaintiffs' basic constitutional rights. Absent declaratory and
- 4-

injunctive relief from this Court, plaintiffs will continue to live under such conditions for the many years that their cases are pending on appeal or post-conviction proceedings. These conditions include the following:
10. All death-sentenced inmates are confined to their cells an average of approximately 23 1/2 hours per day.
11. Plaintiffs are permitted only three outdoor recreation periods per week, each lasting only approximately 45 minutes. Even these recreation periods are frequently cancelled due to inclement weather or muddy conditions in the exercise yard, or for other reasons not explained to plaintiffs.
12. Plaintiffs are supposed to be permitted 45-minute exercise periods on a weight machine, adjacent to their housing area, on days when they do not receive outdoor recreation. However, in reality these exercise periods are accorded far less frequently, because there are not enough weight machines, only two prisoners at a time are allowed to use each machine, and the areas where the machines are located are so poorly ventilated that on many days exercise is impossible. Exercise periods on the weight machines are often denied for other reasons not explained to plaintiffs.
13. Plaintiffs are supposed to receive showers three days per week, although even these shower periods are sometimes cancelled for reasons not explained to plaintiffs. Often plaintiffs are denied showers after exercise periods. Shower periods
- 5-

l a s t only 10-15 minutes at most, and are frequently shorter. It is not uncommon for a brief shower to be the only out-of-cell time for a death-sentenced prisoner during an entire day.
14. Death row at the Missouri State Penitentiary consists of three rows of s i n g l e - t i e r c e l l s , running at right angles to each other, in the basement of a building constructed in approximately 1865.
15. There are no dayrooms or other common areas attached to the rows of c e l l s in which death-sentenced prisoners are confined. There is a narrow walk approximately 4' wide in front of each row of c e l l s , but even this limited area is not used for any regularly scheduled out-of-cell time.
16. Death row c e l l s at the Missouri State Penitentiary measure approximately 9'8" x 6'4", for a total of approximately 60 square f e e t . Much of the space is taken up by fixtures (bed, t o i l e t , sink, e t c . ) , leaving a total floor space of only approximately 20 square feet for each prisoner to stand or walk.
17. Two of the three rows of c e l l s for death sentenced prisoners have no clear windows. One of these has frosted windows which are translucent but not transparent. On the other the windows have been painted.over with opaque paint, leaving the prisoners without any natural l i g h t whatsoever; on this row prisoners are subjected to the d i s o r i e n t i n g experience of not even being able to t e l l whether i t 'is day or night.
- 6-

18. The plumbing on death row is in extremely poor condition, causing toilets and sinks to overflow into the cells; frequently human waste from one toilet will back up into the toilets of several adjacent cells.
19. Drinking water in the cells on death row has a foul taste and is unsanitary.
20. Ventilation on death row is grossly inadequate, resulting in stifling heat in warm weather. In cold weather the heating is insufficient.
21. Because of frequent toilet breakdowns and inadequate ventilation, the air on death row is exceedingly noxious, odorous and unhealthy.
22. Showers on death row are unventilated and do not drain properly. These conditions cause stagnant water and accompanying foul odors, which add still further to deterioration of the air.
23. Each death row cell contains a one bare light bulb of low wattage, located approximately 12 to 14 feet from the floor.
» Because of the height of the bulb and its low wattage, it is virtually impossible to read or write without considerable eyestrain.
24. Noise levels on death row are extremely high, thereby exacerbating tensions and subjecting plaintiffs to the risk of hearing impairment.
- 7-

25. Death row is extremely dirty and infested with roaches and flies. Although prison officials sometimes spray and fog the unit with insecticide, they do not remove inmates from their cells when this is done. Inmates are thus constantly forced to ingest noxious and dangerous fumes.
26. Mattresses and blankets in the cells on death row are filthy. The mattresses are never cleaned, and the blankets are generally cleaned no more than once a year.
27. Death-sentenced prisoners alleged to have committed disciplinary infractions are placed in special seclusion cells on death row, commonly known as the "hole." Cells in the hole are the worst ventilated, dirtiest and most insect-infested on death row, and the floor areas in them are frequently wet due to plumbing malfunctions.. The beds in these cells have been removed, thereby forcing prisoners to sleep on a mattress on the floor amidst the insects and pools of water. There is no light bulb in the cells, and the nearest bulb, in a small enclosure just outside the bars, is controlled by guards; there is also a solid door between the small enclosure just outside the bars and the walk. Guards frequently turn off the light bulb and close the solid door, leaving prisoners in total darkness. Guards also can and frequently do turn off the water in these cells, making it impossible to flush the toilet or to wash. Prisoners sentenced to the hole are allowed only two showers per week, and must otherwise remain in these squalid cells 24 hours per day. They are also denied sheets, pillows and pillowcases, all reading
- 8-

material, and even their own legal papers. Death-sentenced prisoners are routinely consigned to these unconscionable and barbaric conditions for the most minor infractions, such as talking back to a guard.
28. Guards on death row frequently subject prisoners to verbal harassment about their sentences, taunting them with strident declarations of support for capital punishment and other barbs about their status as condemned prisoners who may be put to death. Prisoners must either endure these provocations or, if they dare to respond, run the risk of placement in the hole for talking back to an officer.
29. Death-sentenced prisoners are required to eat all meals in their cells, and no group dining is permitted. The food is prepared at a general prison facility and transferred across an outside yard; by the time it is given to plaintiffs it is usually cold, and often contains dirt and other unsanitary particles.
30. The last meal of the day on death row is at 2:30 p.m., and breakfast is not until 8 a.m. the following morning. This bizzare feeding schedule leaves a period of approximately 17 1/2 hours during which food is totally denied to plaintiffs.
31. Death-sentenced prisoners are not allowed to have group religious services, and are denied even individual access to clergy who are not employees of the Missouri Department of Corrections. Muslim death-sentenced prisoners are denied even
- 9-

individual access to the Muslim minister who conducts weekly services for Muslim general population prisoners at the Missouri State Penitentiary.
32. Defendants presently allow only four prisoners at a time to exercise in the yards used for death row recreation. There are two such yards, both of which are too small and inadequately equipped to permit meaningful exercise. Both are unpaved and have no drainage, r e s u l t i n g in the cancellation of many recreation periods due to muddy conditions.
. 33. Prisoners on death row may not v i s i t the Missouri State P e n i t e n t i a r y ' s law library or writ room, and the system by which legal materials are delivered to prisoners on death row does not provide meaningful access to these materials.
34. Prisoners on death row are not provided adequate medical care. Virtually a l l i n i t i a l diagnosis and medical care for death row inmates is provided by inmate medical assistants, -many of whom have no formal medical training of any kind. Requests by i l l prisoners for visits to death row by doctors or medical technicians are often denied or met with unconscionable delays. When a medical doctor does v i s i t death row, he generally conducts only perfunctory examinations of death-sentenced prisoners through the c e l l bars. Delivery of urgently needed medication is often delayed or denied. Prescriptions obtained from the medical assistants receive only perfunctory review by a medical doctor, who is generally available only one day per week.
- 10 -

35. Plaintiffs are not evaluated for psychiatric or psychological problems when they arrive at the prison. No procedures exist for monitoring the mental state of inmates to identify the development or progress of psychological disturbances, and prisoners in need of psychiatric care do not receive it.
36. Obtaining dental care at the Missouri State Penitentiary is a capricious and often slow process for death-sentenced prisoners. Many have suffered needless pain and waited for months after diagnosis to see a dentist for treatment.
37. The only employment opportunity available to death row prisoners is the position of "walk man." The "walk man" is supposed to serve the food and keep the walk clean. There is one "walk man" position for each of the three death row walks, and the position is not generally rotated among the death row population. As a result, most members of the plaintiff class have no employment opportunities at all.
38. Death row inmates are not allowed any educational or vocational programming.
39. Death row inmates are accorded inadequate counseling •services.
40. Death row inmates are denied access to many canteen items accorded to other prisoners, including mirrors and food packaged in jars or cans.
41. Death row inmates have inadequate opportunity to use the telephone.
- 11 -

42. Death row inmates are not permitted access to the prison library.
43. Death row inmates have inadequate opportunity to use typewriters.
44. Death row inmates are not provided adequate supplies of paper, envelopes, pens and pencils necessary for correspondence with courts, public officials, attorneys, family members and other individuals.
45. Prison officials frequently read, tamper with, tear and destroy death row inmates1 mail, including legal mail.
46. Prison officials frequently examine and scatter death row inmates' legal papers during searches of their cells.
47. All visits for death-sentenced prisoners, except for some visits by attorneys, take place behind a dark, thick screen which makes it very difficult for the prisoners and visitors to see and hear each other. There are no privacy partitions in the visiting area.
48. The Missouri State Penitentiary has only two small rooms available for contact visits between attorneys and prisoners. When these two rooms are occupied by other visits — which may include non-attorney visits such as interviews by law enforcement personnel — an attorney wishing to visit a death row inmate must either wait for one of the rooms to become available or visit behind the screen in the non-contact visiting area.
- 12 -

49. Defendants do not permit attorneys to provide death row inmates with legal papers during visits, except upon inspection of the papers by prison officials outside the presence of the inmate and his attorney.
50. All death-sentenced prisoners are unnecessarily handcuffed behind their backs virtually every time they leave their cells, including times when they are going to and from the yard or visiting area. This practice is degrading and endangers plaintiffs' safety by leaving them defenseless against attacks by other prisoners.
51. The death row cell areas have an inadequate number of exits for evacuation in case of fire. On some shifts the guards do not have ready access to keys necessary for evacuation in.case of fire.
52. At various times during the past year defendants have sporadically relaxed some of the conditions alleged herein, briefly permitting more frequent exercise periods attended by more prisoners at a time, additional showers, occasional contact visits and other improvements. However, even these slight ameliorations of the conditions alleged herein have usually been arbitrarily suspended, curtailed or eliminated without explanation. None have been made permanent by the posting or distribution of schedules or other memoranda advising plaintiffs of official changes in the rules and regulations of the institution.
- 13 -

53. Confinement of plaintiffs for periods of many years under the conditions alleged herein is dehumanizing and damaging to plaintiffs' physical and psychological health and safety.
54.. Confinement of plaintiffs for many years under the conditions alleged herein creates an atmosphere of hostility and tension both among prisoners and between prisoners and staff, and endangers institutional security.
55. Confinement of plaintiffs for many years under the conditions alleged herein is so physically and psychologically debilitating that some members of the plaintiff class will invariably choose to terminate their appeals and be executed rather than continue to exist under such conditions.
56. Many members of the plaintiff class will ultimately prevail on their appeals or post-conviction proceedings, and will have new trials at which their record of institutional behavior may be introduced in evidence at the penalty phase. Some will eventually be sentenced to terms of imprisonment, and their record of institutional behavior will be a factor in determining whether or not they are to be released on parole. Those who do not succeed in having their death sentences set aside will seek executive clemency, at which time their record of institutional behavior will be a factor in determining whether or not their lives are to be spared. Accordingly, plaintiffs have an interest in maintaining a good record of institutional behavior, and cannot all be presumed to pose a threat to institutional security.
- 14 -

57. The conditions alleged herein are more restrictive than those imposed by defendants upon prisoners confined to administ r a t i v e or punitive segregation at the Missouri State Penitentiary.
58. The period of time during which the plaintiff class will have to suffer under the conditions alleged herein, i . e . , the many years during which their cases are pending on appeal and post-conviction proceedings, is much longer than the typical period of administrative or punitive segregation at the Missouri State Penitentiary.
59. Unlike prisoners in administrative or punitive segregation, death-sentenced prisoners have been consigned to the r e s t r i c t i v e conditions alleged herein without any hearing or c l a s s i f i c a t i o n proceeding to determine whether i t is necessary for i n s t i t u t i o n a l security to subject them to such restrictions. They are confined under these conditions solely because of their sentence.
60. All prisoners under sentence of death committed to defendants' custody are automatically required to live under the conditions alleged herein. Defendants make no effort to determine whether or not they have any prior record of institutional misbehavior, or any prior record of convictions for crimes of violence, which might indicate that they pose a threat to institutional security.
- 15 -

61. Most prisoners at the Missouri State Penitentiary, including many who have been convicted of murder or other violent crimes, and many who have records of institutional misbehavior, are not subjected to the conditions alleged herein. Once they have been classified as suitable for general population they are allowed out of their cells for most of the day, enjoy extensive group recreational opportunities in large outdoor and indoor recreational facilities, and are accorded employment opportunities, group dining in a mess hall, group religious services, contact visits, access to the library, law library and writ room, and many other basic necessities denied to death-sentenced prisoners.
62. Many prisoners under sentence of death, identifiable pursuant to routine classification procedures, could be housed under conditions far less restrictive than those alleged herein without any danger to institutional security.
63. Plaintiffs have attempted to appeal conditions on death row administratively, to no avail.
64. At all times relevant to the claims herein, defendants have acted or failed to act under color of law of the State of Missouri.
CAUSES OF ACTION
65. Defendants have violated and are violating plaintiffs' right to be free from cruel and unusual punishment under the
- 16 -

Eighth and Fourteenth Amendments to the Constitution of the United States, by subjecting plaintiffs to conditions and practices which, both individually and in their totality, a) offend minimal concepts of dignity and civilized standards of human decency, b) are excessive and disproportionate to any legitimate correctional objective, a-nd c) demonstrate a deliberate indifference to the basic medical and psychological needs of plaintiffs.
66. Defendants have violated and are violating plaintiffs' right to due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, by arbitrarily and without justification depriving plaintiffs of their protected liberty interest to be free of conditions equal to or worse than conditions of administrative or punitive segregation. Such deprivation offends both plaintiffs' right to procedural due process, in that no meaningful hearing or classification proceeding is conducted prior to consigning plaintiffs to these conditions, and offends plaintiffs' right to substantive due process.
67. Defendants have violated and are violating plaintiffs' right to equal protection of the laws, in violation of the Fourteenth Amendent to the Constitution of the United States, by singling them out for confinement under the conditions alleged herein solely on the basis of their sentencing status.
68. Defendants have violated and are violating plaintiffs' constitutional right to access to the courts and to the assistance of counsel by failing to provide them with meaningful
- 17 -

access to legal materials and an effective means of communicating with counsel and the courts, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.
69. Defendants have violated and are violating plaintiffs' rights under the First and Fourteenth Amendments to the Constitution of the United States, by interfering with plaintiffs' incoming and outgoing mail.
70. Defendants have violated and are violating plaintiffs' rights under the First, Eighth and Fourteenth Amendments to the Constitution of the United States, by restricting their visits.
71. Defendants have violated and are violating plaintiffs' rights under the First and Fourteenth Amendments to the Constitution of the United States, by refusing to allow plaintiffs to attend group religious services.
72. Plaintiffs and the class they represent have no adequate remedy at law to redress the wrongs suffered and set forth herein. Plaintiffs have suffered and will continue to suffer irreparable injury as a result of the unlawful acts, practices and policies of the defendants alleged herein unless they are granted the relief prayed for. This suit for declaratory and injunctive relief is the only means by which plaintiffs may secure relief from the unlawful acts, practices and policies of defendants. The need for relief is pressing as the rights at issue are paramount rights under the Constitution of the United States.
- 18 -

PRAYER FOR RELIEF
WHEREFORE, plaintiffs, on behalf of themselves and the class they represent, request that this Court grant them the following relief:
I. Adjudge and declare that the conditions and practices alleged herein are in violation of the rights of plaintiffs and the class they represent under the Constitution and laws of the United States.
II. Enjoin defendants, their agents and employees, and all persons acting in concert with them, from incarcerating plaintiffs and the class they represent under the unconstitutional conditions and practices alleged herein.
III. Enjoin defendants, their agents and employees, and all persons acting in concert with them, from engaging in any acts of retaliation against plaintiffs and the class they represent for having brought this lawsuit.
IV. Direct defendants to submit a plan for the prompt elimination of the unconstitutional conditions and practices alleged herein.
V. Retain jurisdiction in this cause until the unlawful conditions and practices alleged herein no longer exist and the Court is satisfied that they will not recur.
VI. Grant plaintiffs the costs and expenses of maintaining this action, including reasonable attorneys' fees.
VII. Grant such other and additional relief as the Court may deem just and proper.
- 19 -

Respectfu

ted,

RICHKJRI NAN/Y (E-; EMMEL
Sindel & Sindel 15A N. Meramec Suite 200 Clayton, Missouri 63105 (314) 721-6040
JULIUS L. CHAMBERS JOEL BERGER
NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street 16th Floor New York, New York 10013 (212) 219-1900
ATTORNEYS FOR PLAINTIFFS

- 20 -

 
 . CL.

RICHARD H. SINDEL CHARLES D SINDEL CHRISTOPHER P. COX * LEO N. GRIFFARD, JR. CHERYL A. RAFERT
_*ALSO LICENSED IN ILLINOIS
C0MS5/VT DECREES

ATTORNEYS AT LAW 8008 CABONDELET- SUITE 301
CLAYTON, MISSOURI 63105
(314) 721-6040 FAX (314) 721 -8545
_ July 14, 1992

National Prison Project Attn: Jan Elvin 1875 Connecticut Avenue, N.W. Washington, DC 20015

WILLIAM F. SINDEL (RETIRED)
TEBBS^A FORGEY, JR. *v\"i 936 -1987

Re: McDonald v. Armontrout '

Dear Ms. Elvin:

Per our conversation of July 13, 1992,enclosed please find copies

of the consent decree and the modified consent decree. As I

indicated in our telephone conversation, the consent decree was

modified and altered when the inmates were moved from the facility

at Jefferson City to the new prison facility at Potosi Correctional

Center.

f

Presently, we have been able to negotiate with the State and all death row inmates, exclusive of those with conduct violation problems, have been released into general population. They are allowed out of^Wjeir cells to recreate, use prison facilities, go to the law library^ etc. from 8:00 a.m. to 8:00 p.m. and then are allowed to use the dayroom facilities in each of the housing units until approximately 10:00 p.m. on weeknights and 12:30 a.m. on weekends.

Because of the implementation of these changes, the State is seeking to have the consent decree dismissed claiming that these changes nullify any need for the Court to continue to police the enforcement of the consent decree.

We are still attempting to obtain additional concessions surrounding such issues as personal property, but feel relatively satisifed with the results of this litigation.

If I can be of additional service please do not hesitate to contact me.

Very truly yours,

071406.rhs/rt Enclosure

Richard H. Sindel

McDonald v. Armontrout

• •

• • mm • • • m

PC-MO-001-00S

 
 CM/ECF Western District of Missouri - Docket Report

Page 1 of 5

U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:85-cv-04422-SOW

TERMED

McDonald, et al v. Armontrout, et al Assigned to: Judge Scott O. Wright Demand: $0 Cause: 42:1983 Prisoner Civil Rights Plaintiff Samuel L McDonald
Plaintiff Gerald M Smith

Date Filed: 04/01/1989 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Samuel L McDonald JCCC Jefferson City Correctional Center P.O. Box 900 Jefferson City, MO 65102 PRO SE
Joel Berger NAACP Legal Defense & Educational Fund, Inc. 99 Hudson St. 16th Floor New York, NY 10013 (212) 219-1900 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Sindel 8008 Carondelet Clayton, MO 63105 (314) 721-6040 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald M Smith JCCC Jefferson City Correctional Center P.O. Box 900 Jefferson City, MO 65102 PRO SE
Joel Berger (See above for address) LEAD ATTORNEY

https://ecf.mowd.uscourts.gov/cgi-bin/DktRpt.pl?111562264139429-L_280_0-1

11/1/2005

CM/ECF Western District of Missouri - Docket Report

Page 2 of 5

Plaintiff Rayfield Newlon
Plaintiff Thomas Henry Battle
Plaintiff Alan J Bannister

ATTORNEY TO BE NOTICED
Richard H. Sindel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Rayfield Newlon JCCC Jefferson City Correctional Center P.O. Box 900 Jefferson City, MO 65102 PRO SE
Joel Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Sindel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Henry Battle JCCC Jefferson City Correctional Center P.O. Box 900 Jefferson City, MO 65102 PRO SE
Joel Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Sindel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alan J Bannister JCCC Jefferson City Correctional Center P.O. Box 900 Jefferson City, MO 65102 PRO SE

https://ecf.mowd.uscourts.gov/cgi-bin/DktRpt.pl?111562264139429-L_280_0-1

11/1/2005

CM/ECF Western District of Missouri - Docket Report

Page 3 of 5

V. Defendant Warden William Armontrout
Defendant Lee Roy Black
Defendant Warden Donald Wyrick
Defendant John Ashcroft

Joel Berger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H. Sindel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/12/1989
04/12/1989
04/17/1989 04/17/1989 04/20/1989 04/24/1989

#

Docket Text

286 MOTION by plaintiff Alan J Bannister, plaintiff Thomas Henry Battle, plaintiff Rayfield Newlon, plaintiff Gerald M Smith, plaintiff Samuel L McDonald to extend time to file comments to dfts' mt to implement consent decree (Court Employee) (Entered: 04/17/1989)

287 Notice by defendant John Ashcroft, defendant Donald Wyrick, defendant Lee Roy Black, defendant William Armontrout of transmittal of consultants preoccupancy evaluation of environment & sanitation & fire safety at Potosi Corr Ctr (Court Employee) (Entered: 04/17/1989)

288 ORDER by Judge Scott O. Wright granting motion to extend time to file comments to dfts' mt to implement consent decree to 4/26/89[286-1] (cc: all counsel) (Court Employee) (Entered: 04/17/1989)

289 Objections by defendants to plts' reply to dft's response to plts' mt for sanc & TRO (Court Employee) (Entered: 04/18/1989)

292 MOTION by plaintiffs Foster & Williams for appointment of counsel other than Richard Sindel (Glenda Curl) (Entered: 05/02/1989)

290 MOTION by defendant to amend/modify consent decree (Court Employee) Modified on 09/05/1989 (Entered: 04/25/1989)

https://ecf.mowd.uscourts.gov/cgi-bin/DktRpt.pl?111562264139429-L_280_0-1

11/1/2005

CM/ECF Western District of Missouri - Docket Report

Page 4 of 5

04/27/1989 05/10/1989
05/11/1989 05/12/1989 05/16/1989 05/17/1989 05/17/1989 05/17/1989 05/25/1989 05/30/1989 05/31/1989 06/07/1989
09/25/1989 07/16/1990
11/30/2001

291 Response by plaintiffs to motion to amend/modify consent decree [2901] (Court Employee) (Entered: 04/27/1989)
293 ORDER by Judge Scott O. Wright the modified consent decree is aproved. ORDERED that plas' mts for protective ord, to compel enforcement of consent jgm, sanctions, a TRO, & to replace plas' counsel are denied.[262,263,273,276] Case transferred to Dist of: Eastern Missouri (cc: all counsel) (Glenda Curl) Modified on 05/11/1989 (Entered: 05/11/1989)
294 CLERK'S JUDGEMENT on ord of 5/10/89 transferring case to Eastern District of MO (cc: all counsel) (Glenda Curl) (Entered: 05/11/1989)
295 REMARK: Pro Se from pla Doyle Williams in supp of req for appt of substitute counsel. (Glenda Curl) (Entered: 05/15/1989)
296 ORDER by Judge Scott O. Wright (cc: all counsel) that Dennis Nielsen, Probation Officer, is relieved of any further responsibility in this cause of action (Court Employee) (Entered: 05/16/1989)
297 MOTION by plaintiff for attorney fees & expenses (Court Employee) (Entered: 05/17/1989)
298 MEMORANDUM by plaintiff re motion for attorney fees & expenses [297-1] (Court Employee) (Entered: 05/17/1989)
299 AFFIDAVIT of Richard H Sindel regarding motion for attorney fees & expenses [297-1] (Court Employee) (Entered: 05/17/1989)
300 Response by defendants to motion for attorney fees & expense [297-1] (Court Employee) (Entered: 05/30/1989)
302 MOTION by defendant for order for modification of the consent decree & memo agreement (Court Employee) Modified on 09/05/1989 (Entered: 06/07/1989)
301 Reply by plaintiff to response to motion for attorney fees & expenses [297-1] (Jackie Price) (Entered: 05/31/1989)
303 ORDER by Judge Scott O. Wright (cc: all counsel) that plts' req for atty's fees & expenses be granted in part. ORDER that the amt req $92,897.86, be reduced by $23,707.50, for a total of $69,190.36 in atty's fees & expenses to be awarded to Sindel & Sindel (Court Employee) (Entered: 06/07/1989)
304 ORDER 8th CCA: pettition for writ of mandamus has been considered & is denied. (Glenda Curl) (Entered: 09/25/1989)
305 ORDER 8th CCA - the order of the District Court is affirmed w/out prejudice to the right of appellants to judicial recourse in the event the modified consent decree is violated or other unconstitutional practices or conditions can be shown. (Jackie Price) Modified on 07/18/1990 (Entered: 07/18/1990)
306 ORDER by Magistrate William A. Knox that the Clerk of Court keep the

https://ecf.mowd.uscourts.gov/cgi-bin/DktRpt.pl?111562264139429-L_280_0-1

11/1/2005

CM/ECF Western District of Missouri - Docket Report

Page 5 of 5

following four files of the US Probation & Parole Office under seal with the file in this case (cc: all counsel) (Laura Bax) (Entered: 11/30/2001)

PACER Service Center
Transaction Receipt

11/01/2005 16:28:30

PACER Login: hs0328

Client Code:

Description: Docket Report Search Criteria: 2:85-cv-04422-SOW

Billable Pages: 2

Cost:

0.16

https://ecf.mowd.uscourts.gov/cgi-bin/DktRpt.pl?111562264139429-L_280_0-1

11/1/2005

 
 MOED - CM/ECF (LIVE) - Docket Report

Page 1 of 4

APPEAL, TERMED
U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:89-cv-01086-ELF

McDonald, et al v. Delo, et al Assigned to: Honorable Edward L. Filippine Demand: $0 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 06/08/1989 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Samuel L. McDonald

represented by Christopher P. Leritz LERITZ AND PLUNKERT One City Centre Suite 2001 St. Louis, MO 63101 314-231-9600 Fax: 314-231-9480 Email: cleritz@leritzlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gerald M. Smith

represented by Christopher P. Leritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Rayfield Newlon

represented by Christopher P. Leritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Thomas H. Battle

represented by Christopher P. Leritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Alan Bannister

represented by Christopher P. Leritz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?751174232701826-L_280_0-1

11/1/2005

MOED - CM/ECF (LIVE) - Docket Report

Page 2 of 4

V. Defendant Paul K. Delo
Defendant Mel Carnahan
Defendant Dora B. Schriro
Defendant Michael Bowersox

Richard H. Sindel SINDEL AND SINDEL 8008 Carondelet Suite 301 Clayton, MO 63105 314-721-6040 Fax: 314-721-8545 Email: rsindel@sindellaw.com TERMINATED: 03/06/1996 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan D. Boresi ATTORNEY GENERAL OF MISSOURI Assistant Attorney General 111 N. Seventh Street Suite 204 St. Louis, MO 63101 314-340-7861 Fax: 314-340-7891 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan D. Boresi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan D. Boresi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Susan D. Boresi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/08/1989

#

Docket Text

1 ORIGINAL file, certified copy of transfer order and docket sheet received from The Western District of MO with document numbers 1

https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?751174232701826-L_280_0-1

11/1/2005

MOED - CM/ECF (LIVE) - Docket Report

Page 3 of 4

09/18/1995 10/20/1995 10/24/1995 11/14/1995
03/06/1996 03/06/1996
03/29/1996 05/06/1996 04/02/1997 05/12/1997 05/30/1997

thru 302 (Western District of MO case #85-4422-CV-5) (GLF) (Entered: 03/12/1997)
2 ORDER by Honorable Edward L. Filippine dismissing case With Prejudice (cc: all counsel) (GLF) (Entered: 03/12/1997)
3 NOTICE OF APPEAL filed by plaintiff Alan Bannister re: the District Court decision; [2-2] (GLF) (Entered: 03/13/1997)
4 NOTICE OF APPEAL filed by plaintiff Samuel L. McDonald re: the District Court decision ; [2-2] (GLF) (Entered: 03/13/1997)
DELIVERED TO USCA - 1 Civil Appeal Cover Sheet, 2 Certified Copies of Notice of Appeal, 2 Certified Copies of Clerk's Docket entries, and 2 Certified Copies of the order for both Bannister and McDonald (GLF) (Entered: 03/13/1997)
5 ORDER FROM USCA copy filed terminating attorney Richard H. Sindel for Alan Bannister USCA number: 95-3843 (GLF) (Entered: 03/13/1997)
6 NOTIFICATION AND BRIEFING SCHEDULE (USCA) FILED, USCA #: 95-3845 and 95-3843 Clk's Rec due: 4/19/96 Transcript Due: 4/19/96 Designations Due: 04/01/96 Briefs Due: 05/29/96 (GLF) (Entered: 03/13/1997)
7 DESIGNATION OF RECORD ON APPEAL requested by plaintiff Samuel L. McDonald, plaintiff Alan Bannister to be forwarded to the USCA and pltfs' attorney. (GLF) (Entered: 03/13/1997)
DESIGNATED RECORD ON APPEAL DELIVERED TO (USCA), Letter and copy of Index sent to attorneys of record. (GLF) (Entered: 03/13/1997)
8 Opinion from USCA on USCA number 95-3843EMSL Opinion of USCA: affirmed (FCE) (Entered: 04/07/1997)
9 ORDER FROM USCA copy filed USCA number: 95-3843 EMSL; The suggestion for rehearing en banc is denied; The petition for rehearing by the panel is also denied (FCE) (Entered: 05/14/1997)
10 MANDATE W/OPINION ATTACHED from (USCA) affirming the decision of the District Court [4-1], affirming the decision of the District Court [3-1] (cc: all counsel) (MCB) (Entered: 06/04/1997)

PACER Service Center
Transaction Receipt

11/01/2005 16:32:54

PACER Login: hs0328

Client Code:

Description: Docket Report Search Criteria: 4:89-cv-01086-ELF

Billable Pages: 2

Cost:

0.16

https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?751174232701826-L_280_0-1

11/1/2005

MOED - CM/ECF (LIVE) - Docket Report

Page 4 of 4

https://ecf.moed.uscourts.gov/cgi-bin/DktRpt.pl?751174232701826-L_280_0-1

11/1/2005

 
 109 F.3d 1319 (1997)
Samuel Lee McDONALD; Thomas Henry Battle; Plaintiffs, Alan J. Bannister, Plaintiff-Appellant, v.
Mel CARNAHAN; Dora Schriro; George Lombardi; Michael Bowersox, DefendantsAppellees.
Samuel Lee McDONALD; Plaintiff-Appellant, Thomas Henry Battle; Alan J. Bannister, Plaintiffs,
v. Mel CARNAHAN; Dora Schriro; George Lombardi; Michael Bowersox, Defendants-
Appellees.
Nos. 95-3843, 95-3845.
United States Court of Appeals, Eighth Circuit.
Submitted January 13, 1997. Decided April 2, 1997.
Rehearing and Suggestion for Rehearing Denied May 12, 1997.
1320 *1320 Christopher P. Leritz, argued, St.Louis, MO, for Plaintiff-Appellant.
Susan D. Boresi, Asst. Atty. Gen., argued, St.Loius, MO, for Defendants-Appellees.
Before BOWMAN and MURPHY, Circuit Judges, and JONES,[1] District Judge.
Rehearing and Suggestion for Rehearing En Banc Denied May 12, 1997.
BOWMAN, Circuit Judge.
The plaintiffs, who are Missouri prisoners confined under sentence of death, filed this class action in August 1985, challenging as unconstitutional the conditions of their confinement in the Missouri State Penitentiary in Jefferson City. The United States District Court for the Western District of Missouri[2] certified a class of present and future Missouri death-row inmates. The parties soon negotiated a detailed consent decree regulating a number of aspects of day-to-day life on death row, and the court approved the decree, following several addenda, in January 1987. We first saw this case in 1988, when we affirmed the court's award of attorney fees to counsel for the plaintiffs. See McDonald v. Armontrout, 860 F.2d 1456 (8th Cir.1988).
The following year, the defendants filed motions to move death row to the newly constructed Potosi Correctional Center and to modify the consent decree to reflect the different conditions at the new prison. The court granted both motions. On the plaintiffs' appeal of the modification of the consent decree, we again affirmed. See McDonald v. Armontrout, 908 F.2d 388 (8th Cir.1990) (McDonald II). Because the Potosi prison is beyond the boundaries of the Western District of Missouri, the modified decree provided for a transfer of jurisdiction to the Eastern District of Missouri.
Not long after their arrival in Potosi, the plaintiffs moved the District Court[3] to hold the defendants in contempt, challenging specific conditions of their confinement in the new prison. Before the court acted on that motion, the defendants "mainstreamed" the plaintiff class into the general prisoner population. (As a result, a true "death row" no longer exists in Missouri, but we will continue to use that term as a form of shorthand.) The court denied the contempt motion.
1321 *1321 The defendants filed a motion in 1991 to dismiss this case, which the District Court interpreted as a motion to vacate the consent decree and terminate its continuing jurisdiction. The court received written submissions

from the plaintiffs, conducted six days of evidentiary hearings, and considered further materials submitted by both sides. Finally, in September 1995, the District Court filed an exhaustive eighty-five-page opinion vacating the consent decree and terminating its jurisdiction. The plaintiffs appeal, and we affirm.
At the outset, we consider the effect on this action of a section of the Prison Litigation Reform Act, 18 U.S.C.A. § 3626 (West Supp.1997), which imposes restrictions on the duration of prospective relief in actions challenging prison conditions. See id. § 3626(b). The Act took effect on April 26, 1996, after the District Court rendered its order dismissing this case, and so the District Court did not have an opportunity to consider whether the Act should apply to this case. The plaintiffs, who filed their opening brief in this appeal shortly after the Act became law, did not address the new law and have not filed a reply brief. The state's brief argues in conclusory fashion that the Act applies and that the dismissal of the case was proper. Because the parties and the record have given us little to work with on this issue, we will apply the law prevailing when the District Court filed its opinion and leave the Act for another day.[4]
We review the District Court's decision to terminate its supervision over the consent decree for abuse of discretion. See Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir.1993); see also McDonald II, 908 F.2d at 390 (applying same standard to modification of terms of decree). In deciding whether to terminate its jurisdiction, a district court should consider several factors:
(1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement.
Heath, 992 F.2d at 633; see also Board of Educ. of Okla. City Pub. Sch., Indep. Sch. Dist. No. 89 v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 637-38, 112 L.Ed.2d 715 (1991) (noting that, in considering whether to lift desegregation decree, court should consider past compliance with court orders and defendant's good faith); Johnson v. Heffron, 88 F.3d 404, 407 (6th Cir.1996) (ordering prison consent decree dissolved where its goals had been achieved and no constitutional violation was likely after dissolution); Inmates of Suffolk County Jail v. Rufo, 12 F.3d 286, 293 (1st Cir.1993) (suggesting that court should consider whether constitutional violation has been remedied, defendants have complied with decree in good faith for reasonable period, and violation is unlikely to be repeated if decree is terminated) (dicta); Kindred v. Duckworth, 9 F.3d 638, 644 (7th Cir.1993) ("[D]ecrees imposing obligations upon state institutions normally should be enforceable no longer than the need for them.").
We conclude that the District Court did not abuse its discretion when it dissolved the decree in the case at bar. We begin with the goals and terms of the consent decree. In McDonald II, we identified the purpose of the decree at issue here as "to provide constitutionally acceptable conditions of confinement for inmates on death row. The decree is simply a plan for ensuring that the capital punishment unit complies with constitutional requirements." 1322 McDonald II, 908 F.2d at *1322 391. As modified in 1989, the decree itself provides that jurisdiction is transferred to the Eastern District "to insure compliance with the foregoing provisions until such time as all provisions of this decree have been fully implemented." Modified Decree ¶ 20.[5] It follows that once the decree had accomplished its purpose, remedying any conditions of death row that may have fallen short of constitutional standards, the District Court properly could vacate it and bring this case to a close.
We next consider whether the state complied or attempted in good faith to comply with court orders (namely, the terms of the decree). The substantive terms of the decree address the conditions of life on death row in some detail, but the decree does not provide the plaintiffs with all the privileges they claim. In particular, the following concerns raised by the plaintiffs in their objections to the District Court's dismissal of the case, although related to general topics covered in the decree, bear no real connection to the actual terms of the decree: (1) the number of telephones, the lack of tables near telephones, and the requirement that administrative segregation inmates be handcuffed during calls; (2) the manner in which G.E.D. programs are provided; and (3) the presence of light early in the morning and the absence of light late at night. See Modified Decree ¶¶ 4, 12, 13. Accordingly, these

objections add nothing to the plaintiffs' argument that the District Court abused its discretion in vacating the decree.[6]
In two areas, the District Court did find that the defendants may have violated the strict terms of the decree. One provision of the decree requires the defendants to take reasonable care to avoid the "scattering of legal materials" during cell searches. Modified Decree ¶ 2(b). The District Court found some evidence that prisoners' legal materials have been scattered during searches, but found that any scattering was not done in bad faith. (This is not quite the same as finding that the defendants took reasonable care to avoid scattering the materials, as the decree requires.) But the court also found that any scattering that occurred was not for any improper purpose, was not retaliatory in nature, and did not actually interfere with the plaintiffs' access to the courts. See Scher v. Engelke, 943 F.2d 921, 924 (8th Cir.1991) (retaliation), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992); Lewis v. Casey, ___ U.S. ___, ___, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996) (access to courts). The plaintiffs' only objection to dismissal on this issue is their bare assertion that legal materials have, on occasion, been scattered. Without more 0907 such as a pattern or practice of intentional scattering or an actual constitutional violation 0907 we cannot conclude that the District Court abused its discretion by vacating the decree over this objection.
The District Court also noted some shortfalls in the state's compliance with the decree's provisions relating to medical services. The decree requires that inmates be permitted to visit the eye clinic within eight working days of making a request and that medication be dispensed within twenty-four hours of prescription. See Modified Decree ¶ 5(d)-(e). The court noted that prisoners now have, at most, a two- to four-week delay in seeing an optometrist and a five-day delay in receiving prescription medication. The court concluded that these delays were not caused by bad faith on the part of the defendants, but rather by shift changes, the optometrist's limited hours, and the lack of a pharmacy on the prison premises. Furthermore, the court concluded that any delays in no way constituted deliberate indifference to the prisoners' medical needs and thus posed no constitutional problems. 1323 See, e.g., Givens *1323 v. Jones, 900 F.2d 1229, 1233 (8th Cir.1990) (granting judgment to defendants in action alleging one-month delay in treatment of non-acute condition). In light of the defendants' good-faith efforts to comply with this section of the decree and the lack of any constitutional difficulties presented by the delays, we cannot conclude that the District Court abused its discretion in vacating the decree over this objection.
After determining that the defendants had complied with the other terms of the consent decree, the District Court considered whether the state was likely to impose unconstitutional conditions on the prisoners if the decree were vacated. The court found no reason to believe that would happen, and the plaintiffs have suggested none to us. We hardly need to add that the prisoners may challenge, by means of a separate lawsuit, any unconstitutional situation that may arise in the future.
After more than ten years of litigation, the District Court concluded that the consent decree in this case should be vacated and the case dismissed. In light of the deference we owe to that decision, see Heath, 992 F.2d at 633, and to the day-to-day judgments of the defendants in the operation of the prison, see Lewis, ___ U.S. at ___, 116 S.Ct. at 2185, we cannot say that the order of the District Court dismissing the case is an abuse of that court's discretion.
The order of the District Court is affirmed.
[1] The Honorable John B. Jones, United States District Judge for the District of South Dakota, sitting by designation.
[2] The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.
[3] The Honorable Edward L. Filippine, United States District Judge for the Eastern District of Missouri.
[4] We recognize that other prisoners, including some within our Circuit, have raised constitutional challenges to the validity of the Act. See, e.g., Plyler v. Moore, 100 F.3d 365, 371-75 (4th Cir.1996) (rejecting a number of constitutional challenges); Gavin v. Ray, No. 4-78-CV-70062, 1996 WL 622556, at *2-4 (S.D.Iowa Sept.18, 1996) (holding § 3626(b)(2) unconstitutional); Lyon v. Vande Krol, 940 F.Supp. 1433, 1436-39 (S.D.Iowa 1996) (holding 28 U.S.C.A. § 1915(g), also added by the Act but concerning in forma pauperis proceedings, unconstitutional).

The district judges who decided Gavin and Lyon have certified these cases for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In this case, we need not and do not reach any issues concerning the constitutionality of the Act.
[5] The plaintiffs do not challenge the District Court's conclusion that the only provisions of the decree presently in effect are those provisions set forth in Judge Wright's May 10, 1989 order modifying the decree in connection with the move to Potosi.
[6] Similarly, the prisoners' argument that the District Court should have reopened the evidentiary hearings in light of new developments (an increase in the population of the prison and a prison-wide lockdown in August 1995) is meritless. The District Court correctly determined that none of these developments, and none of the prisoners' grievances attendant thereto, was relevant to the consent decree.
Save trees - read court opinions online on Google Scholar.

 
 908 F.2d 388 (1990)
Samuel L. McDONALD; Gerald M. Smith; Rayfield Newlon; Thomas Henry Battle; Alan J. Bannister, Class certified 1/15/86 to consist of all persons presently confined under
sentence of death in the Potosi Correctional Center and all persons who in the future will be confined under sentence of death by the Mo. Dept. of Correction, Appellants, v. Bill ARMONTROUT; Lee Roy Black; Donald Wyrick; John Ashcroft, Appellees.
No. 89-2152.
United States Court of Appeals, Eighth Circuit.
Submitted April 12, 1990. Decided July 16, 1990.
389 *389 Richard H. Sindel, Clayton, Mo., for appellants.
Deborah Neff, Jefferson City, Mo., for appellees.
Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HENLEY, Senior Circuit Judge.
BOWMAN, Circuit Judge.
This case concerns the constitutionality of certain modifications ordered by the District Court[1] in a consent agreement between appellees Bill Armontrout, warden of the Missouri penitentiary, Lee Roy Black, Director of the Department of Corrections of the state of Missouri, Donald Wyrick, Director of the Division of Adult Institutions of the Missouri Department of Corrections, and John Ashcroft, Governor of the State of Missouri, and appellants, a class consisting of all inmates presently or in the future under sentence of death confined in a Missouri penitentiary. The original complaint alleged that death row inmates at the Missouri State Penitentiary were subjected to conditions and practices in violation of their constitutional rights under the First, Sixth, Eighth, and Fourteenth Amendments. Without an admission by appellees or a finding by the court that the conditions on death row were unconstitutional, the appellees entered into a consent agreement with the appellant class under which various improvements were to be made in the conditions and practices on death row at the Missouri State Penitentiary. Immediately after the settlement, and several months before the court entered a consent decree approving the settlement, appellees began complying with the agreement.
Approximately two years later, appellees filed a motion with the court to move the capital punishment unit from the Missouri State Penitentiary to the Potosi Correctional Center, which had been in the process of being built when the parties reached their initial settlement. The consent decree specifically anticipated a transfer of the capital punishment unit from the Missouri State Penitentiary to the Potosi Correctional Center when that facility was completed, Consent Decree at 19, and the new facility was built to accommodate a capital punishment unit. Order to Implement Consent Decree at Potosi at 3. The appellant class did not respond to appellees' motion to transfer the capital punishment unit and the District Court approved the motion in an order issued on March 13, 390 1989. It was not until after appellees had submitted *390 their plan to implement the consent decree at Potosi and request for modifications in the decree consistent with that plan that appellants objected. Two weeks later the District Court entered an order approving appellees' request for modifications consistent with the implementation plan. In this appeal appellants challenge that order, arguing that the District Court was without authority to order any of the modifications or, in the alternative, was without authority to order modifications beyond those relating to the physical plant in which the death-sentenced inmates are housed.
The district court retains authority over a consent decree, including the power to modify the decree in light of changed circumstances, and is subject to only a limited check by the reviewing court. Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976); United States v. United Shoe Mach., 391 U.S. 244, 251, 88 S.Ct. 1496, 1500, 20 L.Ed.2d 562 (1968), United States v. Swift & Co., 286 U.S. 106, 114,

52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). We will reverse a district court's modification of a consent decree only upon a showing of an abuse of discretion. See System Fed'n No. 91 v. Wright, 364 U.S. 642, 650, 81 S.Ct. 368, 372, 5 L.Ed.2d 349 (1961). Moreover, the Supreme Court has indicated that a district court's resolution of a motion to modify is due greater deference when the changed circumstances justifying modification are of fact rather than law. Wright, 364 U.S. at 648, 81 S.Ct. at 371 ("[D]iscretion is never without limits and these limits are often far clearer to the reviewing court when the new circumstances involve a change in law rather than facts."). Here the changed circumstances were of fact: the capital punishment unit was to be moved to a new institution. Our standard of review is deferential; and we find no abuse of discretion in the modifications ordered by the District Court.
Appellants do not and could not object to the movement of the capital punishment unit to Potosi. The possibility of such a transfer is expressly contemplated in the decree, as was the need for court-ordered modifications consequent upon such a transfer. The decree provides:
New Facilities
If defendants at some future date determine that it is necessary to expand death row housing beyond its present location ... or move death row to a new location, defendants shall file with the Court and serve upon counsel for the plaintiff class a plan for implementation of all rights and privileges conferred by this decree at the new or additional location(s). Defendants may begin housing death-sentenced inmates in such new or additional location(s) upon approval of the plan by the Court.
Consent Decree at 19. Because the changed circumstances, as well as the possibility of modifications, were fully foreshadowed in the original decree, it could be said that the changes ordered by the District Court were not modifications at all, but were part of the court's enforcement of the original terms of the decree pursuant to its continuing supervision.
But even had the decree made no mention of a possible future movement of the capital punishment unit to a new facility and, further, had neglected to assert the District Court's continuing authority over the decree, the court still would have had power to order modifications. "If the reservation [of power to modify the decree] had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need." Swift & Co., 286 U.S. at 114, 52 S.Ct. at 462 (citations omitted), quoted in Wright, 364 U.S. at 647, 81 S.Ct. at 371 (holding that there is no diminution of the court's power if the decree is the result of consent rather than litigation); see also Wright, 364 U.S. at 646, 81 S.Ct. at 371 ("[T]he power of the District Court to modify this decree is not drawn in question. That proposition indeed could not well be disputed."). Modification is appropriate "if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones 391 have arisen." Local No. 93, Int'l Assn. of *391 Firefighters v. City of Cleveland, 478 U.S. 501, 527, 106 S.Ct. 3063, 3078, 92 L.Ed.2d 405 (1986) (quoting Wright, 364 U.S. at 646-47, 81 S.Ct. at 370-71). In the case at hand, the circumstance of the opening of a brand new correctional institution with facilities for a capital punishment unit, and to which appellees wished to transfer death-sentenced inmates, constitutes a changed circumstance sufficient to justify modifications in the decree with or without the specific provisions in the decree allowing for a transfer and for concomitant modifications.
Appellants argue that the changed circumstance must be both "unforeseen" and the cause of "grievous wrong." This claim, however, is taken from the discussion of a quite separate matter in Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. In that case, the Supreme Court considered court-ordered alterations in a consent decree that constituted less a modification than a complete nullification of a significant portion of the consent decree. The original agreement in Swift settled an antitrust suit filed by the government against the five preeminent meat-packing companies accused of monopolizing the meat-packing industry as well as forming incipient monopolies in several other food-related industries. Under the decree the defendants were prohibited from engaging in restraints of trade in their meat-packing businesses and, in addition, from entering five other market areas, which they had begun to monopolize.

Two years after the settlement was entered as a consent decree, some of the defendants moved the court to strike the prohibition on their trading in the largest of those five markets 0907 114 grocery items specifically enumerated in the decree. It was only after finding that the "[s]ize and past aggressions [that induced the fear of monopoly in 1920] leave the fear unmoved today," 286 U.S. at 117, 52 S.Ct. at 463, that the Court stated "[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned." 286 U.S. at 119, 52 S.Ct. at 464. The Court's description of the changed conditions necessary for the "modification" requested in Swift was, of course, not controlling since the Court found no changed circumstances whatsoever. But the greater distinction is that the modifications sought in that case consisted of eliminating entirely one of the central purposes of the agreement.
Appellees in the case before us, however, do not seek to compromise in any way the purpose of the decree, which is to provide constitutionally acceptable conditions of confinement for inmates on death row. The decree is simply a plan for ensuring that the capital punishment unit complies with constitutional requirements. Modifications in such an implementation plan would be proper even in the absence of those portions of the decree that specifically anticipate the changed circumstances and modifications at issue here. Thus, the only remaining question is whether the court-ordered modifications somehow fail to provide constitutional conditions of confinement for the prisoners in the capital punishment unit.
Appellants themselves stress that "[i]t was the intention of the parties and the Court to eliminate any conditions of confinement which may have denied death row inmates the rights, privileges, and immunities secured to them by the Constitution and the laws of the United States." Appellants' Brief at 7. Noticeable, however, is a the lack of specificity in appellants' brief regarding the ordered modifications. Indeed, beyond an oblique reference in their opening brief to the categories in which modifications were made, it is not until several pages into the reply brief that their objections to particular modifications can be discerned at all. Those changes that appellants believe to "substantially impact []on important rights" include: a reduction of outdoor exercise time for close custody inmates from sixteen hours per week to four hours per week; a smaller outdoor exercise facility for medium custody inmates, which is not equipped for handball, basketball, baseball, or football; greater restrictions for some inmates on group religious services; limited telephone access time available for close custody inmates; and, 392 finally, mail delays for up to "days at *392 a time." Appellants' Reply Brief at 8-9. But the provision of handball and basketball courts or sixteen hours of outdoor exercise per week, for example, is not required by the Eighth Amendment's proscription against cruel and unusual punishment. Nor is it a requirement of the First Amendment that those duly convicted of murder[2] and sentenced to death be afforded more than one hour per week of telephone access for personal phone calls.[3] Indeed, on the present record we cannot say that any of the conditions of confinement at Potosi Correctional Center constitute grounds for an even colorable claim of a constitutional violation.
Moreover, even these most serious of appellants' complaints describe the conditions of confinement for only some of the inmates under sentence of death. Because the new institution in Potosi can accommodate a larger classification system, inmates there may be assigned to one of five custodial groups: Disciplinary Custody, Administrative Segregation, Close Custody, Medium Custody, and Minimum Custody. Minimum Custody inmates have roughly the same privileges as nondeath-row inmates in general custody. It is the fewer privileges of those within the more restrictive custodial classifications that appellants posit as the basis for their complaints with the modifications. While recreation time and other benefits are decreased for some inmates, those in the less restrictive classifications are accorded more recreation time and other additional benefits under the classification scheme at Potosi. Thus, almost all the objections appellants lodge against the modifications are aspects of the more finely calibrated classification system at Potosi.
Of this classification system 0907 the fulcrum of their objections 0907 appellants state:
It may be true that those inmates at the highest classification level receive benefits equal to and perhaps greater than they were afforded at MSP. Nonetheless, to ignore the rights and privileges of those unable, or perhaps, unwilling to attain the highest level of classification because of their

behavior, some of which is uncontrollable, is not justified merely because the Plaintiffs have been moved from Jefferson City to Potosi.

Appellants' Reply Brief at 12 (emphasis added). By contrast, appellees argue that the multi-tier classification system provides a significant incentive for good behavior while at the same time increasing security by separating those with serious behavior problems from the other inmates. Appellees' Brief at 11.

In a legal contest between those prison inmates who are "unable, or perhaps, unwilling" to conform their behavior to valid institutional norms, and those who administer the correctional institution, there can be no question of the victor.

Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison

administration. In part this policy is the product of various limitations on the scope of federal

review of conditions in state penal institutions. More fundamentally, this attitude springs from

complementary perceptions about the nature of the problems and the efficacy of judicial

intervention. Prison administrators are responsible for maintaining internal order and discipline, for

securing their institutions against unauthorized access or escape, and for rehabilitating, to the

extent that human nature and inadequate resources allow, the inmates placed in their custody.

The Herculean obstacles to effective discharge of these duties are too apparent to warrant

explication. Suffice it to say that the problems of prisons in America are complex and intractable,

and, more to the point, they are not readily susceptible of resolution by decree. Most require

expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly

393

within the province of the legislative and *393 executive branches of government. For all of those

reasons, courts are ill equipped to deal with the increasingly urgent problems of prison

administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of

realism. Moreover, where state penal institutions are involved, federal courts have a further reason

for deference to the appropriate prison authorities.

Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (footnotes omitted) construed in Thornburgh v. Abbott, ___ U.S. ___, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989) (overruling Martinez to the extent that Martinez required a stricter standard of review for prison regulations than reasonableness). Were we to employ a de novo standard of review we would have no quibble with the modifications ordered by the District Court in this consent decree. We find no abuse of discretion. The order of the District Court is affirmed, without prejudice to the right of appellants to judicial recourse in the event the modified consent decree is violated or other unconstitutional practices or conditions can be shown.

[1] The Honorable Scott O. Wright, Chief Judge, United States District Court for the Western District of Missouri.
[2] Of the 2,124 prisoners awaiting execution in this country in 1988, only one had received the death penalty for a crime other than murder (he had been convicted of raping a child). United States Department of Justice, Bureau of Justice Statistics, Capital Punishment 1988 at 1.
[3] Telephone access to attorneys was not altered by the modifications. Appellees' Brief at 9.

Save trees - read court opinions online on Google Scholar.

 
 860 F.2d 1456 (1988)
Samuel L. McDONALD; Gerald M. Smith; Rayfield Newlon; Thomas Battle; Alan J. Bannister, and on behalf of all other persons similarly situated, Appellees, v.
Bill ARMONTROUT; Lee Roy Black; Donald W. Wyrick; John D. Ashcroft, Appellants. Samuel L. McDONALD; Gerald M. Smith; Rayfield Newlon; Thomas Battle; Alan J. Bannister, and on behalf of all other persons similarly situated, Appellants, v. Bill ARMONTROUT; Lee Roy Black; Donald W. Wyrick; John D. Ashcroft, Appellees.
Nos. 87-2145, 87-2200.
United States Court of Appeals, Eighth Circuit.
Submitted March 16, 1988. Decided November 9, 1988.
1457 *1457 Henry Hershel, Jefferson City, Mo., for appellants.
Richard Sindel, Clayton, Mo., and Joel Berger, New York City, for appellees.
Before FAGG, BOWMAN and MAGILL, Circuit Judges.
BOWMAN, Circuit Judge.
Inmates confined under sentence of death at the Missouri State Penitentiary (Plaintiffs) prevailed in a 42 U.S.C. § 1983 action alleging violations of their constitutional rights. Subsequently, the District Court[1] ordered defendant state officials (Defendants) to pay approximately $276,000 in attorney fees and expenses. Although the parties agree that it was proper to award Plaintiffs attorney fees and expenses, Defendants appeal, arguing that the fee award should have been smaller, and Plaintiffs cross-appeal, contending it should have been larger. We affirm.
I.
This attorney fees dispute arises out of a class action suit filed in August 1985 challenging the constitutionality of conditions and practices on death row at the Missouri State Penitentiary in Jefferson City. Shortly before the suit was to go to trial, the parties reached a settlement and signed a consent decree. On January 7, 1987, the District Court approved the settlement and entered final judgment. Paragraph Twenty-eight of the consent decree obligated the parties to negotiate over fees and expenses and, if no agreement were reached, to submit the matter to the District Court. The parties failed to reach an agreement and Plaintiffs filed a motion for fees and expenses.
Plaintiffs were jointly represented in the class action by Mr. Richard Sindel of Sindel & Sindel, P.C., a law firm in Clayton, Missouri, and by Mr. Joel Berger of the NAACP Legal Defense and Educational Fund, Inc. (LDF), located in New York City. Sindel requested a total award of $153,876.62 ($151,573.79 for attorney fees, based on a rate of $150 per hour, and $2,302.83 for expenses) and Berger requested $189,339.09 ($153,720 for attorney fees, based on a rate of $225 per hour, and $35,619.09 for expenses). The District Court awarded Sindel $146,071.78 and LDF $130,696.59. The court reached these figures based on the following rates of compensation: $150 per hour for Sindel and Berger, $100 per hour for Sindel's partner, and $85 per hour for Sindel's associates; and by compensating each attorney at only "one-half of this rate for each hour of travel time." 1458 McDonald v. Armontrout, *1458 No. 85-4422-CV-C-5 (W.D.Mo. July 23, 1987).
Defendants appeal and Plaintiffs cross-appeal. Defendants present three main arguments: 1) the award should have been based on lower hourly rates; 2) the hourly rates should have been reduced for time spent monitoring

compliance with the consent decree; and 3) fees should not have been awarded for time spent on an earlier habeas corpus action. Plaintiffs argue that the hourly rates should not have been reduced for travel time and that the rate applied to the work of Berger failed to reflect his special skill and experience.
II.
The Civil Rights Attorney's Fees Awards Act of 1976 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee." 42 U.S.C. § 1988 (1982). A reasonable fee is "one that is `adequate to attract competent counsel, but ... [that does] not produce windfalls to attorneys.'" Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984) (quoting S.Rep. No. 94-1011, 94th Cong., 2d Sess. 6, reprinted in 1976 U.S.Code Cong. & Admin.News 5908, 5913). Because an award of attorney fees is "uniquely [within] the district court's discretion," the scope of our review in an attorney fees dispute is limited. We will not overturn a fee award "absent an abuse of discretion or an error in implementing the governing legal standards." Wilmington v. J.I. Case Co., 793 F.2d 909, 923 (8th Cir.1986). Accord Moore v. City of Des Moines, 766 F.2d 343, 346 (8th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986) . Having reviewed the record in this case, we find no abuse of discretion or error of law.
A.
1.
Our primary concern in an attorney fees case is whether the fee awarded is "reasonable." See Blum, 465 U.S. at 893, 104 S.Ct. at 1546; see also 42 U.S.C. § 1988 ("the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee") (emphasis added). The Supreme Court has explained that the proper method for "determining a reasonable attorney's fee is to multiply `the number of hours reasonably expended on the litigation times a reasonable hourly rate.' ... `[T]he resulting product [i.e., "lodestar"] is presumed to be the reasonable fee' to which counsel is entitled." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986) (quoting Blum, 465 U.S. at 888, 897, 104 S.Ct. at 1543, 1548) (emphasis added in Delaware Valley). Consistent with Delaware Valley, and explicitly following Blum, the District Court set hourly rates for the attorneys' work and calculated the fee award based on those rates. The parties do not challenge the District Court's use of that method. Defendants claim, however, that the hourly rates used by the District Court in its calculations were unreasonably high. In particular, Defendants claim that the rate applied to Sindel and Berger's work should not have been $150 but a "central Missouri rate" of $80 per hour.[2]
In Blum, the Supreme Court broadly stated that awards of attorney fees under § 1988 should be calculated using 1459 "market rates,"[3] and that the "requested rates *1459 [should be] in line with those prevailing in the community
for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895-96, 896 n. 11, 104 S.Ct. at 1547-48, 1547 n. 11. More recently, the Court emphasized that the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)[4] should be used to set the reasonable number of hours and reasonable hourly rate components of the fee award formula.[5] Delaware Valley, 478 U.S. at 565-66, 106 S.Ct. at 3098-99. Delaware Valley, Blum, and Johnson all emphasize that the skill, experience, and reputation of counsel are key factors bearing on a rate's reasonableness. Thus, to ascertain the reasonableness of the hourly rate used by the District Court to calculate the fee award, we give considerable attention to these particular characteristics of the attorneys.
Sindel is a successful litigator with a private firm in the St. Louis area. At the time of the request for attorney fees he had over thirteen years of legal experience and was customarily billing clients for matters similar in complexity to this case at a rate of $150 per hour. Defendants do not contend that such a rate for Sindel's services was unreasonable when paid by private clients.
Sindel's regular hourly billing rate provides a useful starting point for determining a reasonable fee. We have said that where an attorney requesting fees has well-defined billing rates, those rates can be used to help calculate a

reasonable rate for a fee award. See Shakopee Mdewakanton Sioux v. City of Prior Lake, 771 F.2d 1153, 1160-61 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986). This is consistent withBlum, for "in most cases, billing rates reflect market rates 0907 they provide an efficient and fair short cut for determining the market rate." Student Pub. Interest Research Group, Inc. v. AT & T Bell Laboratories, 842 F.2d 1436, 1445 (3d Cir.1988). Accord Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 652 (3d Cir.1986), vacated on other grounds, ___ U.S. ___, 107 S.Ct. 3255, 97 L.Ed.2d 754 (1987). We explained in Shakopee, however, that an attorney's ordinary billing rate is not conclusively "reasonable," but should be compared to the "ordinary fee `for similar work in the community.'" Shakopee, 771 F.2d at 1160 (quoting Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140 (8th Cir.1982) (quoting Johnson, 488 F.2d at 718)). This factor serves as a check on the reasonableness of the attorney's customary hourly rate. See Shakopee, 771 F.2d at 1160; Avalon, 689 F.2d at 140.
Bearing these factors in mind, we are unpersuaded by Defendants' argument that the District Court's use of a $150 rate for Sindel's work was unreasonable. Even assuming arguendo that Blum governs this issue, see supra 1460 n. 2, and that the relevant "community" for determining the market rate is central Missouri,[6] Defendants *1460 present no evidence that attorneys of Sindel's caliber performing work of the type involved here would be compensated at just over half Sindel's regular billing rate. Defendants cite Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) where attorney fees apparently were awarded based on a rate of $80 per hour. [7] But Defendants fail to present any evidence that the attorneys in that case were of the reputation, skill, and experience of Sindel. Further, we disagree with Defendants' contention that this case was "no more complicated" than Safley. Safley was a First and Fourteenth Amendment action involving challenges to two correctional institution regulations; this case, on the other hand, had First, Sixth, Eighth, and Fourteenth Amendment issues and involved challenges to a host of conditions and practices ranging from fire safety and plumbing to religious services and visiting rights. In short, Defendants fail to show that in central Missouri comparable attorneys doing similar work would be paid much less than $150 per hour.
Because attorneys in rural areas frequently command lower fees than attorneys in urban areas, there is some argument for setting the rate for Sindel's work below his regular rate. But other Johnson factors militate against using a lower rate. First, the work of Sindel led to an order calling for substantial changes in conditions on death row and vindicated important constitutional rights. Second, Sindel took on a highly "undesirable" case by representing death row inmates, thereby exposing himself to personal and perhaps even professional contempt. And third, the rate used here is in line with other recent fee awards in successful civil rights cases in this Circuit. For example, in a fee dispute arising out of a school desegregation case in Little Rock, Arkansas, we affirmed as "reasonable" awards of $125 per hour for an LDF staff attorney who had been in practice only about six years and $200 per hour for a Washington, D.C. "cooperating" attorney who had been in practice approximately thirty years. See Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 787 F.2d 372, 374 (8th Cir.1986) ; D.R. at 322-46. See also infra pp. 1460-1461. We are satisfied that the District Court did not abuse its discretion in basing Sindel's fee on an hourly rate of $150.
Unlike Sindel, Berger is a salaried attorney employed by a legal aid organization.[8] He is one of this nation's leading practitioners in the field of prisoners' rights and a specialist on death row conditions. At the time Plaintiffs filed for attorney fees, he had been in practice approximately eighteen years. As they did regarding Sindel's work, Defendants contend that the appropriate hourly rate for Berger's services is $80.
Defendants cite only unreported decisions and Safley in support of their proposition that there is a mid-Missouri rate of $80 per hour that should be applied to Berger's work. We found no reason to apply that rate to Sindel's work and are no more moved to apply it to Berger's. Again, assuming arguendo that the relevant community is mid-Missouri, Defendants simply have not shown that someone of Berger's caliber doing the kind of work involved in this case would be paid $80 per hour. By contrast, there is ample evidence that Berger is one of the nation's foremost practitioners in the field of prisoners' rights and that a $150 rate is reasonable. Of particular 1461 persuasiveness is the long list of prisoner rights and death row cases in which Berger has been involved. Even *1461 several years ago one court described Berger as being "in the vanguard of prisoners' rights attorneys." Ruiz v. Estelle, 553 F.Supp. 567, 593 (S.D.Tex.1982). Comparisons to hourly rates previously received by Berger and rates provided in other recent civil rights cases suggest that the District Court acted well within its discretion

in applying the rate it did. In Ruiz, for work performed by Berger during 1978-82, the court set a rate of $125, and then applied a 100% multiplier, effectively producing a rate of $250 per hour. Ruiz, 553 F.Supp. at 597. More recently, this Court affirmed as reasonable a decision awarding an experienced civil rights attorney fees for his services in a school desegregation case based on an hourly rate of $200. See Jenkins by Agyei v. Missouri, 838 F.2d 260 (8th Cir.), cert. granted in part on other issues, ___ U.S. ___, 109 S.Ct. 218, 102 L.Ed.2d 209 (1988) and cert. denied, ___ U.S. ___, 109 S.Ct. 221, 102 L.Ed.2d 212 (1988). And, as mentioned supra p. 1460, we recently found "reasonable" other awards of $125 and $200 per hour.
"[T]he special skill and experience of counsel should be reflected in the reasonableness of the hourly rates." Blum, 465 U.S. at 898, 104 S.Ct. at 1549. We do not find it unreasonable for the District Court to have concluded that a rate of $80 per hour did not adequately reflect Berger's expertise. Given Berger's skill, experience, and reputation and the rates applied in other recent civil rights cases, we cannot say that it was an abuse of discretion for the District Court to conclude that a reasonable rate for Berger's work was $150 per hour. In addition, as they did in relation to Sindel's fee, factors such as the complexity of the case and the results obtained argue against finding that the rate used by the District Court was unreasonable.
2.
Defendants next contend that the District Court erred by "fail[ing] to reduce the hourly rate for work done for nonlegal monitoring duties." Brief for Defendants at 9. They argue that a lower hourly rate should have been used because such work "cannot be considered as litigation or legal research." Id.
"Several courts have held that, in the context of [fee requests under § 1988], postjudgment monitoring of a consent decree is a compensable activity for which counsel is entitled to a reasonable fee." Delaware Valley, 478 U.S. at 559, 106 S.Ct. at 3095 (citing Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir.1984); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir.1980); Miller v. Carson, 628 F.2d 346, 348 (5th Cir.1980); Northcross v. Board of Educ., 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980)). We agree with those decisions. It may be, as Defendants argue, that courts should apply less than the full hourly rate to clerical work performed by attorneys. But the record reveals that monitoring compliance with the consent decree here involved work that was not merely clerical. Enforcement efforts included interviewing prisoners, investigating complaints, and developing a coherent picture of the conditions and practices on death row vis-a-vis the consent decree. Perserverance and a watchful eye led to the filing of a motion for contempt, appointment of a Special Probation Officer (to monitor compliance), and a Memorandum of Agreement (to supplement the consent decree). We think it was within the District Court's discretion to compensate such work at the full rate. See Bond, 630 F.2d at 1233 (plaintiffs' monitoring efforts were precisely the type of work that Congress anticipated would be remunerated under 42 U.S.C. § 1988).
3.
Defendants also argue that the District Court erred by awarding fees for work arising out of an earlier habeas corpus action. Specifically, they contend that approximately eighty-eight hours spent on the habeas case of a Missouri death row inmate prior to the filing of this suit were improperly included in the hours chargeable in this 1462 case. Plaintiffs contend that the hours in question involved investigative *1462 work that was used for and, in fact, gave rise to this case.
Section 1988 does not limit fee awards to work performed after the complaint is filed, but allows recovery of fees for time spent beforehand investigating facts and researching the viability of potential legal claims. Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 250, 105 S.Ct. 1923, 1932, 85 L.Ed.2d 233 (1985) (Brennan, J., concurring in part and dissenting in part). More to the point, this Circuit has said that fees may be recovered for "research or investigation done in connection with" a related proceeding, to the extent it "proved directly relevant to the successful prosecution of the later civil rights" action. Perkins v. Cross, 728 F.2d 1099, 1100 (8th Cir.1984). Although we are mindful that § 1988 is not to be used to create windfalls for attorneys, see Blum, 465 U.S. at 897, 104 S.Ct. at 1548, we do not perceive on the facts before us that any such windfalls have been created.

As did Plaintiffs here, the petitioner in the habeas action alleged that living conditions on Missouri's death row were unconstitutional. The habeas petitioner is himself a named plaintiff in the present suit. Preparations for that action were precisely what was needed for this one: tours of death row, reviews of prison records, consultations with experts and other attorneys, and research of applicable law. Such work was "both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement." Webb, 471 U.S. at 243, 105 S.Ct. at 1928 (suggesting that prevailing civil rights litigant under § 1988 may be awarded fees for a "discrete portion" of work in a related optional state administrative proceeding to the extent such work was "useful and of a type ordinarily necessary" to the successful outcome of the subsequent litigation). Indeed, work for the habeas action "obviated the need for comparable work in" this proceeding, and "contributed directly to [its] successful outcome." See Webb, 471 U.S. at 249-50, 105 S.Ct. at 1931-32 (Brennan, J., concurring in part and dissenting in part). We find that it was consistent with Webb and Perkins and within the District Court's discretion to award fees for the work in the habeas action.[9]
B.
1.
On cross-appeal, Plaintiffs contend that, under Blum and Delaware Valley, the hourly rate applied to Berger's work must be higher than that applied to Sindel's, "on account of Mr. Berger's special skill and experience." Brief for Plaintiffs at 14. We disagree. Berger certainly has more expertise in prisoner rights cases than does Sindel, but Blum, 465 U.S. at 898-900, 104 S.Ct. at 1548-1550, and Delaware Valley, 478 U.S. at 562-65, 106 S.Ct. at 3096-98, make clear that when determining a reasonable fee, expertise must be considered in conjunction with other factors. In this case, some of those other factors would better support a higher rate for Sindel's work than for Berger's. For example, with regard to the "undesirability" of the case, Sindel's private, for-profit, Missouribased law firm is far more vulnerable to the ramifications of public and private displeasure with his representation of Missouri death row prisoners than is the New York-based LDF. Also, the opportunity cost was greater for Sindel than Berger, because Sindel was precluded from working for paying clients. We think it was well within the District Court's discretion to conclude that, notwithstanding their different levels of expertise, Berger and Sindel should be compensated at the same hourly rate.
2.
Plaintiffs also argue that it was error for the District Court to reduce by fifty percent the hourly rate for attorney 1463 travel time. They assert that under Craik v. Minnesota State University Board, 738 *1463 F.2d 348 (8th Cir.1984),
and Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381 (8th Cir.1987), travel time must be compensated at the same hourly rate as other work. In Craik, however, we simply said that the district court's award of fees for travel time at the full rate was not unreasonable on the particular facts there before us. Craik, 738 F.2d at 350-51. And in Rose we said that the district court should "award fees at the full hourly rate ... unless it determine[d] in its discretion that such a recovery would be unreasonable." Rose, 816 F.2d at 396 (emphasis added). Neither case holds that fees for travel time must always be awarded at the full hourly rate. The District Court concluded that the rate for travel time should be lower in this case and we do not find that decision to run afoul of applicable law or to be unreasonable.
The order of the District Court is AFFIRMED.
[1] The Honorable Scott O. Wright, Chief United States District Judge for the Western District of Missouri.
[2] In their briefs, Defendants primarily focus on the rates applied to the work of Sindel and Berger, and we tailor our comments in the text accordingly. We note here, however, that Defendants have not persuaded us that the District Court applied an unreasonable rate to the work of either Sindel's partner or his associates.

[3] The actual holding of Blum is somewhat narrower than its language, since, on its facts, Blum applies only to salaried attorneys employed by legal aid organizations. Blum"did not decide whether the fee awards of private attorneys with an established billing rate must be calculated in the same manner" as those for salaried legal aid employees. Webb v. Maldonado, ___ U.S. ___, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987) (opinion on denial of cert.) (White, J., dissenting). Nevertheless, we find Blum instructive on the importance of market rates and note that market rates have been a primary focus of our inquiries to ascertain the reasonableness of fee awards. See, e.g., Shakopee Mdewakanton Sioux v. City of Prior Lake, 771 F.2d 1153, 1160 (8th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986); Jaquette v. Black Hawk County, 710 F.2d 455, 459 (8th Cir.1983); Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140 (8th Cir.1982). Accordingly, we give that factor due regard in relation to the rate applied not only (as we must) to Berger's work but also Sindel's.
[4] Johnson called for consideration of twelve factors: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.
[5] Most of the Johnson factors had been used to calculate multipliers for enhancing lodestar figures, but in Delaware Valley the Supreme Court said that "most, if not all, of the relevant factors" should be considered when setting the lodestar components. Delaware Valley, 478 U.S. at 565-66, 106 S.Ct. at 3098-99.
[6] We are not at all convinced that central Missouri is the relevant "community" under Blum. Blum does not define "community" and the argument for an expansive reading of "community" is particularly strong in a case such as this, since Jefferson City is the capitol of the state and lawyers from throughout the state have business there. We need not decide this issue, however, because, as the text discusses, even if central Missouri is the proper community, Defendants fail to show that the rate used by the District Court is unreasonable.
[7] In support of their argument, Defendants also include in Appendix C to their brief several unreported district court decisions, but pursuant to Eighth Circuit Rule 8(i) we give these no consideration.
[8] Blum therefore unquestionably supplies the governing legal standards concerning the rate to be applied to Berger's work. See supra n. 2.
[9] Plaintiffs have also indicated that "counsel deleted those hours that were not directly related to the subject matter of this litigation or were not used in preparation for this case." Brief for Plaintiffs at 19.
Save trees - read court opinions online on Google Scholar.

 
 125 F.3d 652 (1997)
Samuel Lee McDONALD, Appellant, Charles W. Armentrout, III, Plaintiff,
v. Mel CARNAHAN; Jay Nixon; Duane Benton, Chief Justice, Missouri State Supreme Court;
Dora Schriro; Michael Bowersox, Appellees.
No. 97-3486.
United States Court of Appeals, Eighth Circuit.
Submitted September 22, 1997. Decided September 22, 1997.
Samuel Lee McDonald, pro se.
Stephen David Hawke, Assistant Attorney General, Jefferson City, MO, for appellee.
Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.
653 *653 PER CURIAM.
Samuel Lee McDonald is a Missouri state prisoner scheduled to be executed on September 24, 1997, at 12:01 a.m. for the capital murder of off-duty police officer Robert Jordan. On September 17, 1997, McDonald filed a pro se 42 U.S.C. § 1983 action challenging provisions of the Missouri Prison Litigation Reform Act, 1997 Mo. Legis. Serv. S.B. No. 56 (Vernon's) (Missouri PLRA), and the Department of Corrections Locker Policy. The district court [1] dismissed McDonald's claims as speculative and frivolous, see McDonald v. Carnahan, No. 4:97-CV-1927CDP, slip op. at 5-6 (E.D.Mo. Sept. 19, 1997), and denied McDonald's request for a stay of execution. See id. at 6.
McDonald has now filed a pro se notice of appeal with this Court and has moved pro se for a stay of execution. Immediately prior to filing the instant motion for a stay of execution, McDonald, through counsel, also moved this Court for permission to file a successive habeas corpus petition under 28 U.S.C.A. § 2244(b) (West Supp.1997) and for a stay of execution. We have denied these prior motions. See McDonald v. Bowersox, 125 F.3d 1183 (8th Cir.1997) (per curiam). We similarly deny McDonald's instant motion for a stay of execution.
We have explained that:
The death penalty is the ultimate penalty, but that fact alone does not require a stay of execution when legal challenges are raised. After completion of direct review, a presumption of finality and legality attaches to the conviction and sentence. A stay of execution pending disposition of a § 1983 suit should be granted only if there are substantial grounds on which relief might be granted. The burden is on the movant to make this showing.
Perry v. Brownlee, 122 F.3d 20, 22 (8th Cir. 1997) (quotations and citations omitted) (emphasis added). McDonald has failed to meet this burden.
In his § 1983 complaint, McDonald contends that the Missouri PLRA constitutes a violation of McDonald's constitutional rights because he was "told that [inmates] cannot file any state habeas corpus, or petitions challenging their convictions unless they submit copies of their prison account and pay the full cost...." Notice and Pet. for Temporary Restraining Order, Requesting Preliminary Injunction, and and (sic) Order to Show Cause Why the Injunction Should Not be Made Permanent Requesting Appointment of Counsel Giving Notice to the Defs. at 4, ¶ 9 (referencing the Missouri PLRA) (Notice). As the district court noted, "plaintiff McDonald does not even state that he has even attempted to file an action with the Missouri Supreme Court. He only states that he has `been told' that he cannot file a state habeas unless he [complies with the Missouri PLRA and] submits

copies of his prison account statement and pay[s] the full cost. This claim is purely speculative as this Court does not know how Missouri courts will interpret the [Missouri PLRA] or what they would even require from a death row inmate facing execution to file a writ of habeas corpus." McDonald, No. 4:97-CV-1927-CDP, slip op. at 5.
McDonald also contends that the Department of Corrections Locker Policy requires that inmates keep their personal possessions in "t[w]o very small tubs, and that aside from all their state clothing, and necessities, they will be given disciplinary violations for having any legal files in their possession that will not fit in the tub[s.]" Notice at 4, ¶ 8. As the district court noted, McDonald does "not allege that [he has] suffered an actual injury to pending or contemplated legal claims because of" the Department of Corrections Locker Policy. McDonald, No. 4:97-CV-1927-CDP, slip op. at 6.
Because McDonald has failed to demonstrate that "there are substantial grounds on which relief might be granted," Perry, 122 F.3d at 22, we deny his motion for a stay of execution. Because McDonald's § 1983 action is 654 frivolous, we summarily dismiss his appeal of the district court's dismissal of his *654 § 1983 action. See 8th Cir. R. 47A(a) ("The court will dismiss the appeal if it is ... frivolous and entirely without merit.").[2]
[1] The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri.
[2] Charles W. Armentrout, III raised § 1983 claims along with McDonald in McDonald's suit in the district court. See McDonald, No. 4:97-CV-1927-CDP, slip op. at 1. It does not appear that McDonald's notice of appeal includes Armentrout, see Mot. for Leave to File an Appeal In Forma Pauperis and Request for Emergency Stay at 1 (Sept. 20, 1997), and it appears that Armentrout's factual predicate for his claims differs somewhat from McDonald's. See McDonald, No. 4:97-CV-1927-CDP, slip op. at 5. Accordingly, our dismissal of McDonald's appeal is without prejudice as to any appeal Armentrout may bring.
Save trees - read court opinions online on Google Scholar.

 
 McDonald v. Bowersox, Not Reported in F.Supp. (1995)
1995 WL 17013058 Only the Westlaw citation is currently available.
United States District Court, E.D. Missouri, Eastern Division.
Samuel L. MCDONALD, Thomas Battle, and Alan J. Bannister, individually and on behalf of all other
persons similarly situated, Plaintiffs, v.
Michael BOWERSOX, Dora Schriro, George Lombardi, and Mel Carnahan, Defendants. Samuel L. MCDONALD, Gerald M. Smith, Rayfield Newlon, Thomas Battle, and Alan J. Bannister, individually and on behalf of all other
persons similarly situated, Plaintiffs,1 v.
Paul DELO, Dick Moore, George Lombardi, and John Ashcroft, Defendants.2
No. 89–1086 C(2). | Sept. 18, 1995.
Attorneys and Law Firms
Christopher P. Leritz, Leritz and Plunkert, St. Louis, MO, Richard H. Sindel, Vice–President, Sindel and Sindel, Clayton, MO, for plaintiffs.
Susan D. Boresi, Attorney General of Missouri, Assistant Attorney General, St. Louis, MO, for defendants.
Opinion
ORDER
FILIPPINE, J.
*1 In accordance with the memorandum and order filed this date and incorporated herein,
IT IS HEREBY ORDERED that plaintiffs’ cause of action is DISMISSED with prejudice.
MEMORANDUM AND ORDER
This matter is before the Court on defendants’ “motion ... to dismiss this lawsuit” (“motion to vacate”)3 and on plaintiffs’ motion to reopen fairness hearing.
Pursuant to this Court’s federal question jurisdiction and 42 U.S.C. § 1983, plaintiffs filed a complaint in the United States District Court for the Western District of

Missouri (“Western District”) seeking declaratory and injunctive relief for conditions and practices of confinement that allegedly violated the First, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.4 In accordance with the parties’ stipulation, the Western District certified a plaintiff class consisting of inmates presently or in the future confined under sentence of death by the Missouri Department of Corrections and Human Resources (“MDCHR”). Defendants, who denied liability and asserted various affirmative defenses in response to plaintiffs’ claims, are the Superintendent of the Potosi Correctional Center (“PCC”), the Director of the MDCHR, the Director of the MDCHR’s Division of Adult Institutions, and the Governor of the State of Missouri. Plaintiffs’ claims were resolved, prior to commencement of trial and without a determination of liability, by the Western District’s approval of the parties’ May 22, 1986, consent decree (“Original Consent Decree” or “Original Decree”).5 See order filed December 15, 1986, and Final Judgment filed January 7, 1987.
When this case was originally filed, plaintiff class members were incarcerated at the Capital Punishment Unit (“CPU”)6 of the Missouri State Penitentiary (“MSP”) in Jefferson City, Missouri,7 which is now known as the Jefferson City Correctional Center. Upon approval by the Western District, in 1989 the CPU was moved to the then newly constructed Potosi Correctional Center in Mineral Point, Missouri. See orders filed March 13, 1989, April 6, 1989, and May 10, 1989. By its May 10, 1989, order, the Western District approved modifications to the Original Consent Decree in light of the transfer of the MSP’s CPU to the PCC and ordered that the case be transferred to this Court. The United States Court of Appeals for the Eighth Circuit subsequently affirmed the court-ordered modifications. McDonald v. Armontrout, 908 F.2d 388, 393 (8th Cir.1990).
Within a few months of the transfer of the CPU to the PCC, plaintiffs filed a motion for contempt challenging specified conditions of their confinement there. After a hearing8 and before the Court issued a ruling on that contempt motion, officials at the PCC altered the conditions of class members’ confinement by “mainstreaming” plaintiff class members with other inmates at the PCC. Therefore, at this time a separate CPU does not exist and death-sentenced inmates at the PCC are now treated the same as other maximum security inmates incarcerated at the PCC.
*2 By their motion to vacate, defendants seek an order dissolving the decree adopted by the May 10, 1989, ruling and terminating the Court’s jurisdiction over this case based on (a) the transfer of the CPU from the MSP to the PCC and (b) the subsequent changes in the conditions applicable to inmates subject to capital punishment (“CP
1

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
inmates”) at the PCC.9 Defendants urge the purposes of the decree have been fulfilled because the changes in conditions meet or supersede the requirements of the May 10, 1989, decree. Because the purposes and goals of that decree are achieved by the present conditions of plaintiffs’ confinement, movants argue, it is proper to vacate the decree. Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Youngblood v. Dalzell, 925 F.2d 954, 958–59 (6th Cir.1991).
The Court stayed ruling on defendants’ motion to vacate so that class members could receive notice of and have the opportunity to respond to the motion. Written comments and/or objections were received from plaintiff class members and their counsel. Additionally, the Court conducted six days of evidentiary hearings to address the issues raised by the motion; and the parties thereafter filed materials in support of their position(s) on those issues. After consideration of the pleadings, the testimony and exhibits introduced at the hearing, the parties’ briefs and the applicable law, the Court enters the following memorandum which it adopts as its ruling on the motion to vacate.
In resolving this motion, the Court is mindful that the parties may not acquire, through a consent decree, a continuing injunction requiring “judicial supervision of a government-run facility.” In re Pearson, 990 F.2d 653, 658 (1st Cir.1993); accord System Fed’n No. 91, Ry. Employees’ Dep’t, AFL–CIO v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961) (stating, in an action under the Railway Labor Act that was resolved by a consent decree, that “[t]he parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction”). Rather, the Court must both exercise caution to the extent judicial judgment is substituted for that of prison administrators with respect to prison management, Rhodes v. Chapman, 452 U.S. 337, 349 n. 14, 351, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Bell v. Wolfish, 441 U.S. 520, 539, 547–48, 554, 557 n. 38, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and restore control to the relevant local authorities once constitutional violations are remedied, Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992); see Dowell, 111 S.Ct. at 637; accord Kindred v. Duckworth, 9 F.3d 638, 644 (7th Cir.1993) (noting “[w]hatever may be the life expectancy of federal consent decrees, respect for the principle of separation of powers suggests that decrees imposing obligations upon state institutions normally should be enforceable no longer than the need for them”).
Federal Rule of Civil Procedure 60(b), which permits the vacating or modification of judgments and orders, is applicable to consent decrees, such as the decree at issue in this case. See Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 757, 116 L.Ed.2d 867

(1992). In relevant part, Rule 60(b) states that, upon motion, a Court may relieve a party from a final judgment or order either because “it is no longer equitable that the judgment should have prospective application” or for “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(5) and 60(b)(6).
*3 The United States Supreme Court has clarified the circumstances under which federal courts may either fully or partially relinquish supervision over decrees in institutional reform cases when the purpose of the litigation has been achieved to the extent practicable.10 Pitts, 112 S.Ct. at 1444–45 (consent decree in school desegregation case); Dowell, supra (court-imposed plan in a school desegregation case); accord Heath v. DeCourcy, 992 F.2d 630, 633 (6th Cir.1993) (discussing the standard applicable to a request to dissolve a consent decree in a prison conditions case); cr. United States v. City of Miami, 2 F.3d 1497, 1503–06 (11th Cir.1993) (discussing the standard applicable to a request to dissolve a consent decree in an employment discrimination case). The Court must find that the underlying constitutional rights addressed through the decree are ensured through defendants’ compliance with the decree’s provisions in good faith for a reasonable period of time. Pitts, 112 S.Ct. at 1446; Dowell, 111 S.Ct. at 637–38. In essence, these elements require a determination that it is unlikely defendants will repeat the earlier violations. Dowell, 111 S.Ct. at 637; Inmates of Suffolk County Jail v. Rufo, 12 F.3d 286, 292 (1st Cir.1993) (addressing motion to vacate consent decree in a case challenging jail conditions for pretrial detainees and noting the two elements implicitly require a finding “there is relatively little or no likelihood that the original constitutional violation will promptly be repeated when the decree is lifted”). Notably, all objections to the dissolution must be considered. Youngblood, 925 F.2d at 961.
In conducting its analysis, the Court must “begin by determining the basic purpose of the decree,” City of Miami, 2 F.3d at 1505, and the specific terms of the decree that is the subject of the dissolution request, Youngblood, 925 F.2d at 960. The Eighth Circuit has stated that the purpose of the decree in this case is to provide constitutionally acceptable conditions of confinement for inmates on death row and the decree’s provisions constitute “a plan for ensuring that the capital punishment unit complies with constitutional requirements.” McDonald, 908 F.2d at 391. Importantly, the appellate court concluded that the court-ordered modifications provided constitutional conditions of confinement in the CPU. Id. at 391–93. Thus, this Court finds that the basic purpose of the May 10, 1989, decree is to ensure constitutionally acceptable conditions of confinement for the CP inmates at the PCC.
The parties dispute whether that decree includes the terms and provisions of any earlier agreements or rulings in this
2

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
case; and, if so, the extent of such inclusion. Defendants contend the only terms and provisions that should guide this Court are those set forth in paragraphs numbered 1 through 20 under section III at pages 7 through 19 of the Western District’s May 10, 1989, order. Plaintiffs contend numerous requirements that are not explicitly set forth in that portion of the May 10, 1989, order are actually part of the decree that is now in effect. Specifically, plaintiffs contend provisions of the Original Decree and of the parties’ December 3, 1987, Memorandum of Agreement (“Memorandum Agreement”) are still in effect. To resolve this dispute, the Court will review the terms of the May 10, 1989, decree, in light of earlier relevant documents.
*4 The Original Consent Decree, which was approved by the Western District after a hearing, generally consists of three sections:11 Section I is a one sentence statement that the Court had jurisdiction over the lawsuit and litigants; Section II has two subparagraphs in which the litigants are identified, and provision is made for the automatic substitution under Federal Rule of Civil Procedure 25(d) of successors in office for any of the defendants named as litigants; and Section III sets forth the terms of the decree in twenty-eight numbered paragraphs. Those paragraphs address issues encompassed by the titles for the paragraphs: Mutuality, Legal Mail and Materials, Religious Services, Telephone Access, Medical Services, Mental Health Care, Classification, Staffing, Recreation, Facility for Indoor Recreation, Plumbing, Renovation, Shower Renovation, Food Service Ramp, Fire Safety, Visiting, Education, Lighting, Sanitation, Window Screening, Feeding, Equal Access, Inspections, Reports, New Facilities, Implementation, Jurisdiction, and Attorneys’ Fees.
In March, 1987, plaintiffs filed a motion for contempt12 and appointment of a special master, along with copies of plaintiffs’ counsel’s letters to defendants’ counsel regarding various complaints that supported or expanded on the allegations set forth in the motion. Defendants denied each of the bases for the contempt motion; noted it was not clear whether local calls in Jefferson City, Missouri, were required by the Original Decree; noted that they were in compliance with the specialized training requirements of that decree; reported that, without waiving their objections or defenses to the appointment of a special master, they “may agree under certain circumstances to a mediator to discuss and remedy some of the complaints”; and asserted they were in substantial compliance or had made diligent and good faith efforts to comply with all provisions of the Original Consent Decree. Copies of letters provided by defendants13 indicated that many of the specific issues presented by plaintiffs had been addressed by defendants.
After a two day evidentiary hearing on the motion, the Western District filed a clarifying order on September 10,

1987. This order required that, as part of the daily access to telephones provided by the Original Decree, all CP inmates be “allowed to place and make phone calls in Jefferson City and the Jefferson City area as well as to any state or city within the continental United States, without restriction except as set forth in Paragraphs 4(a) and (b)” of the Original Consent Decree. Additionally, the order stated “[t]his telephone policy shall commence immediately and shall remain in full force and effect until further order of the Court.” The Western District there-after appointed Dennis W. Nielson, a United States Probation Officer in Missouri, to resolve “all complaints which arise between the parties regarding the terms and/or implementation of the Consent Judgment, addendums or Memoranda of Agreements” in accordance with guidelines to which the parties had earlier stipulated. See Guidelines for Special Probation Officer, filed September 28, 1987.
*5 Then, in December, 1987, the parties filed the Memorandum Agreement to “resolve current conflicts” in plaintiffs’ pending motion for contempt and appointment of a special master; to be construed as an addendum to the approved decree; and to be incorporated into the approved decree. This Memorandum Agreement expressly addressed issues regarding: recreation;14 fire safety;15 medical services;16 sanitation;17 personal property;18 new arrivals;19 window screening;20 new facilities;21 new construction and modifications;22 and visiting.23
In February, 1989, based on a need for additional space and an assurance of continued compliance with the Original Decree, defendants sought the Western District’s approval of a proposed move of the CPU from the MSP to the PCC, “the newly built maximum security prison.”24 In March, 1989, the Western District, in relevant part, granted defendants’ motion to move the CPU.25 After entry of the initial ruling permitting the move, the Western District denied plaintiffs’ motion to alter or amend that ruling, conducted at least one conference with counsel, and directed defendants to submit for the Court’s approval a plan for the move. See, e.g., order filed April 3, 1989, as amended April 6, 1989; minute sheet of March 14, 1989, telephone conference, filed March 20, 1989.
Defendants then submitted their Plan to Implement the Consent Decree at the PCC (“Plan”). See Plan, filed March 28, 1989. In this Plan, defendants reported that sections of the Original Consent Decree and Memorandum Agreement pertaining to the physical conditions at MSP’s CPU were mooted by the move; and that privileges afforded to the CP inmates would be changed in light of the new conditions and classification policy at the PCC. Defendants provided the court with a copy of the Standard Operating Procedure (“SOP”) for PCC’s Capital Punishment Unit.26 See SOP 21–1.5, titled Capital Punishment Unit, attached as Exhibit 2 to defendants’ Plan.
3

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
Defendants also filed a separate motion for modification seeking, in relevant part, the elimination of the joint personal property committee which was established pursuant to the personal property section of the Memorandum Agreement. See defendants’ motion for modification of the consent decree and memorandum agreement, filed April 24, 1989. This request was based on defendants’ efforts to provide minimum custody CP inmates with the same privileges as PCC’s general population inmates and the excessive property demands made by the joint personal property committee, which were contrary to institutional fire safety and security concerns.
While not contesting the re-evaluation of CP inmate privileges in light of changes in the physical conditions and policy pertaining to their confinement at the PCC, plaintiffs challenged various aspects of defendants’ Plan and PCC SOP 21–1.5, in light of the terms of the Original Decree.
*6 The Western District subsequently approved a modified version of defendants’ Plan, after finding that the court had the power to modify the decree; the modification was necessary in light of the transfer of the CPU to the PCC; and the approved plan would guarantee “fair and humane treatment of plaintiffs,” would not thwart the purpose of the parties’ consent decree, and incorporated “the goal of providing constitutionally adequate conditions of confinement.” See order filed May 10, 1989, at pages 3–4, as amended May 16, 1989.27 The Plan, as modified and approved by the Western District, see pages 4–19 of the May 10, 1989, order, is referred to as the “Modified Consent Decree” or “Modified Decree.”
The Modified Consent Decree generally consists of three sections coinciding with the three sections of the Original Consent Decree:28 Section I is a one sentence statement that the Court has jurisdiction over the lawsuit and litigants; Section II has two subparagraphs in which the litigants are identified, and provision is made for the automatic substitution under Federal Rule of Civil Procedure 25(d) of successors in office for any of the defendants named as litigants; and Section III states the terms of the decree in twenty numbered paragraphs. Those paragraphs set forth provisions:
• for the mutuality of the parties’ obligations (Section III.1 Mutuality );29
• prohibiting both the opening of readily identifiable legal mail except in the inmate’s presence30 and the reading during “searches or shakedowns” of legal materials in the inmate’s cell (Section III.2(a)-(b) Legal Mail and Materials );
• requiring reasonable care to avoid damaging or

scattering legal materials (Section III.2(b) Legal Mail and Materials );
• directing inmates to notify prison officials in writing when the inmates believe their legal or personal mail has been improperly handled by prison staff (Section III.2(c) Legal Mail and Materials );
• for the conduct of religious services in privacy rooms of each unit of the CPU,31 except “the punitive segregation unit,”32 for two inmates at a time, with the possibility of increasing that number if “security and management considerations” allow such an increase upon defendants’ annual review; and permitting minimum custody CP inmates to attend “group religious services for death-sentenced inmates in the chapel” (Section III.3 Religious Services );33
• for the availability of telephones for collect calls by minimum custody CP inmates during hours they are released from their cells, seven days a week; for the availability of telephones for collect calls by those CP inmates in close custody, administrative segregation, and disciplinary segregation through arrangements with staff members; and for calls to attorneys lasting an unlimited length of time, calls to others lasting at least twenty minutes, and calls terminated only to accommodate other inmates who want to make calls (Section III.4 Telephone Access );34
*7 • for weekly doctor’s sick call at the PCC clinic, unless an emergency prevents the physician from conducting sick call, in which case the doctor’s sick call is to be rescheduled as soon as possible; for continuing sick call by medical assistants Monday through Friday; precluding custody officer and inmate worker access to CP inmates’ medical or psychological records (except that a custody officer may carry the relevant file(s) when escorting an inmate to health services); for the dispensing of medications directly to the inmates by the medical assistants, rather than by the custody officers, except “in the event of a security emergency”; for the inmate’s submission of a written form when dental or eye clinic care is requested; requiring an escort of the requesting inmate to the appropriate eye or dental clinic within eight working days of receipt of a completed request for such care; and for the dispensing of prescription medication within at most twenty-four hours of the writing of the prescription and thereafter at the intervals required by the prescription (Section III.5 Medical Services );35
• for the assignment to the CPU of a mental health care provider who has at least a Master’s Degree in psychology and one year of professional experience or its equivalent; for conducting an evaluation of newly admitted CP inmates within two weeks; for the psychologist’s referral to a psychiatrist whenever psychiatric care is found advisable through evaluation or
4

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
classification team meetings; for the psychiatrist’s referral of an inmate to a state mental hospital “if appropriate”; for the participation of the psychologist on the CPU classification committee, but that participation may not “necessarily [be] as a voting member” of that committee; for the psychologist’s writing and implementation of a treatment program “when appropriate after evaluating each inmate,” with a referral to the psychiatrist for evaluation, prior to issuance of the prescription(s), of any inmate for whom medication is a part of the treatment program; for the regular review by the psychiatrist of all prescriptions for psychotropic, antipsychotic, or hypnotic medication; for the training of all caseworkers assigned to the CPU on the detection of mental health problems, and death and dying; for the annual evaluation by the psychologist of all inmates not under treatment; and for the confidentiality of all medical and psychological records (Section III.6 Mental Health Care );36
• for a classification system37 applicable to CP inmates consisting of: minimum custody, medium custody,38 close custody, administrative segregation, disciplinary segregation “for 10 days or less pursuant to Division Regulation IS21–1.4 (212.010),” and no contact status (Section III.7(a) Classification );39
• for the provision to plaintiffs’ counsel of any future modification to the classification system proposed by defendants, with plaintiffs counsel given “at least 7 days in which to comment” prior to the adoption of such modifications; and for prior Court approval, at defendants’ request, of “any modifications of the classification system which are inconsistent with the terms and intent of th[e] decree,” except when emergency implementation of a modification “is immediately necessary to preserve the security and safety of the inmates or staff,” then Court approval must be sought promptly thereafter (Section III.7(b)-(c) Classification );40
*8 • for the Court’s review and deletion or alteration of subsequent classification system modifications to “conform to the terms and intent of” the decree (Section III.7(c) Classification );
• for defendants’ printing and distribution to plaintiff class members of the classification system and its subsequent modifications (Section III.7(d) Classification );
• for administrative segregation training of CPU custody staff within three months of their assignment to death row with such training including instruction on special needs of CP inmates, the appellate and post-conviction process in death penalty cases, and the requirements of the decree (Section III.8 Staffing );41
• for minimum custody CP inmates to have the same opportunity for indoor and outdoor recreation as PCC’s general population inmates; for medium custody CP

inmates to have “the opportunity for indoor and outdoor recreation during their day room access”; and for close custody and administrative segregation CP inmates to have “the opportunity for one hour of recreation every other day” (Section III.9 Recreation );42
• for the evaluation of the CPU and related food preparation areas by the two consultants and their development of a plan “recommending necessary fire safety measures” and “delineating all environmental and sanitary measures”; for the inspection of the PCC by the consultants on one occasion after development of the plan(s) “to ensure the necessary fire safety ... environmental and sanitary measures have been implemented”; for defendants’ implementation of all fire safety, environmental, and sanitation measures recommended by the consultants; and directing defendants to make good faith efforts to obtain appropriations from the state legislature for recommended measures that require capital improvements (Section III.10 Fire Safety and Section III.14 Sanitation );43
• directing defendants to “make every effort” to permit CP inmates in administrative or disciplinary segregation to have non-contact, and other CP inmates to have contact, visits with attorneys who have given defendants forty-eight hour advance notice; requiring that all attorney visits with CP inmates having execution dates be contact visits; providing minimum custody CP inmates with four contact visits per month, each lasting four hours with up to four visitors; providing medium custody CP inmates with two “medium contact” visits per month, with each visit lasting an unspecified amount of time with up to two visitors; providing close custody and administrative segregation CP inmates with one no-contact visit per month, each lasting one hour with one visitor; providing that close custody CP inmates and those CP inmates on disciplinary segregation may have contact visitation only in the discretion of the PCC superintendent; and requiring all visitation days to be set by PCC staff (Section III.11 Visiting );44
*9 • directing defendants to provide inmates “with an education program for G.E.D.” (Section III.12 Education );45
• directing defendants to supply CP inmates with light bulbs “sufficient to provide 20 footcandles of light at the bed and desk level” (Section III.13 Lighting );46
• directing defendants to make good faith efforts to provide meals to CP inmates on the same schedule as the feeding of general population inmates (Section III.15 Feeding );47
• giving all CP inmates equal access to the rights and privileges conferred by this decree upon persons within the relevant classification status and to other programs
5

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
and facilities in accordance with their classification and security status (Section III.16 Equal Access );48
• granting plaintiffs’ attorneys access to the CPU and recreation areas upon twenty-four hour advance notice to defendants’ attorneys, “[u]ntil such time as the Court determines that full compliance has been achieved with all provisions of this decree” (Section III.17 Inspections );49
• requiring defendants to submit to the Court and plaintiffs’ counsel “[f]or at least six months from the date o[f] final approval of this decree” a quarterly report “detailing the state of their compliance” with the decree’s provisions (Section III.18 Reports );50
• directing plaintiffs’ counsel to notify defendants’ counsel of “any complaints of non-compliance” and defendants’ counsel to notify plaintiffs’ counsel of “any proposed modification of the rights and privileges accorded plaintiffs by th[e] decree”; requiring the parties to attempt in good faith to resolve all disputes regarding alleged non-compliance or proposed modifications prior to seeking Court action regarding any such non-compliance or modification; and giving plaintiffs the opportunity to seek other relief necessary to eliminate “the conditions which th[e] decree seeks to remedy” if defendants are unable to implement fully the terms of the decree (Section III.19 Implementation );51 and
• specifying that the court transfers jurisdiction of the case to this Court “to insure compliance with the [decree’s] provisions until such time as all provisions of this decree have been fully implemented” (Section III.20 Jurisdiction ).52 Provisions in the Original Consent Decree pertaining to physical improvements in the MSP’s CPU and related facilities were not included in the Modified Consent Decree.53 Thus, in addition to omissions noted in the above summary of the Modified Consent Decree’s terms, sections in the Original Decree regarding the facility for indoor recreation, plumbing, renovation, shower renovation, the food service ramp, window screening, and new facilities are not included in the Modified Decree.
Plaintiffs urge that the following statements made by the Western District in its May 10, 1989, ruling indicate that earlier rulings remain in effect as part of the Modified Consent Decree:
*10 Portions of the Consent Decree and Memorandum Agreement concern the physical conditions of confinement of the [CPU] as it existed at MSP and are mooted by the move to PCC. By mutual agreement of the parties, some portions of the Consent Decree and

Memorandum Agreement remain in full force and effect at PCC.
See page 3 of the May 10, 1989, ruling. This Court is not persuaded by this argument.
Those statements are part of the introductory portion of the ruling, in particular the portion of the ruling discussing whether the court had the authority to modify the consent decree and whether changed circumstances supported a modification of the decree. Upon concluding that it had the legal authority and factual basis for modifying the decree, the court set forth in a subsequent section the actual terms of the Modified Consent Decree. See pages 4 through 19 of the May 10, 1989, ruling. This latter section does not expressly or implicitly incorporate any earlier rulings or agreements, or provisions thereof. Instead, each provision of the Modified Consent Decree is fully set forth, with each provision presented in the same order as the similar provisions were set forth in the Original Decree. More-over, a review of the terms of the Modified Consent Decree and the Original Consent Decree establishes that, in approving modifications, the Western District did more than simply omit provisions in the Original Decree that pertained to the physical facility.
The Court is also not persuaded by plaintiffs’ specific contention that the terms of the December, 1987, Memorandum Agreement regarding personal property were incorporated into and remain part of the Modified Consent Decree. No provision of the Modified Consent Decree expressly addresses personal property issues. While defendants expressly excluded such issues from their Plan for the move of the CPU to the PCC, such issues were clearly the subject of an April, 1989, motion for modification filed by defendants prior to the Western District’s May 10, 1989, ruling. In part, that motion sought the elimination of the property committee because the inmate members had submitted “an unbelievable set of demands for property,” which exceeded the privileges of the inmates not in the CPU;54 the committee infringed “too much upon the discretion of the men and women who run the” CPU; and the committee is “no longer warranted in light of the new prison and fire safety considerations.” Defendants further noted that (a) they had agreed to the establishment of the committee in part “to compensate for the conditions of confinement as they existed at the” MSP, and such conditions do not exist at the PCC; and (b) the fire safety consultants had “stated that inmates should have no more combustible property than can fit in their two footlockers.”
Although the Western District did not expressly enter a written ruling resolving the April, 1989, motion for modification, the terms of the Modified Consent Decree clearly address another matter raised in that motion. In addition to the property issues, that motion asked the
6

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
court to limit the consultants “to providing defendants with one [fire safety, environmental and sanitation] report and one follow-up review.” This suggestion, which differed from the required consultants’ reports and reviews under the terms of the Original Consent Decree and was not otherwise part of defendants’ Plan, was fully incorporated in the Modified Consent Decree at Sections III.10 and III.14. Thus, it is clear the Western District approved the motion to that extent. Because the motion also sought the elimination of the property committee, and the Modified Consent Decree does not contain provisions for the continuation or establishment of such a committee, the Court construes the Modified Consent Decree as having granted that portion of the April 24, 1989, motion as well. Accord Defendants’ Quarterly Compliance Reports for PCC, filed March 29, 1990, and May 30, 1990, which do not contain sections regarding CP inmates’ property. Thus, the personal property committee and personal property issues are not part of the Modified Consent Decree approved by the Western District.55
*11 Based on the foregoing, the Court construes the Modified Consent Decree as consisting of only those provisions set forth at pages 4 through 19 of the May 10, 1989, ruling. Accordingly, any objections based on provisions in effect prior to that date will not be further discussed by the Court.56
Having clarified what constitutes the provisions of the Modified Consent Decree, the Court will address the extent of defendants’ compliance with those terms and the constitutionality of the circumstances relevant to those terms in light of plaintiffs’ objections to the proposed vacating of the decree.57 Notably, there are no objections to the mutuality, mental health care, staffing, fire safety, sanitation, inspections, reports, implementation, and jurisdiction sections of the Modified Consent Decree. The record reflects that defendants have complied with these terms, albeit belatedly in some instances; for example, in the filing of quarterly compliance reports. There is no indication that any delay in compliance resulted from bad faith. Moreover, the record does not support a finding any unconstitutional conditions exist with respect to these elements of the Modified Consent Decree. Under the circumstances, the Court finds no basis for denying the motion to vacate with respect to these sections of the Modified Decree.
With respect to the prohibition against opening readily identifiable legal mail except in the inmate’s presence, there is no indication of record that defendants have failed to comply with this provision and plaintiffs do not contend there has been non-compliance with this provision.58 Such a policy is constitutional. Wolff v. McDonnell, 418 U.S. 539, 574–77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); McMaster v. Pung, 984 F.2d 948, 953 (8th Cir.1993). Accordingly, under the circumstances,

the Court may consider granting the motion to vacate with respect to this provision of the Modified Consent Decree.
With respect to the provisions requiring reasonable care to avoid damaging or scattering legal materials and prohibiting the reading of legal materials during cell searches, there is no indication that PCC officials made it a policy or practice to conduct cell searches so as to damage, destroy or read CP inmates’ legal materials. There has been no showing that any CP inmates’ legal materials were read, as opposed to reviewed for contraband, during cell searches. Rather, the focus of plaintiffs’ objections to the vacating of this provision is on the scattering of legal materials during cell searches. There is evidence that some legal materials have been scattered during searches; however, the Court is not persuaded that any such scattering is done in bad faith.
The undisputed PCC policy is to take reasonable care in handling all of an inmate’s property during cell searches,59 which are conducted periodically without prior announcement in all areas of the PCC. SOP 20–1.3(III). Staff are regularly trained in search techniques, with guidelines including recommendations that (a) the search begin in one place and move around the cell from that point, and (b) property reviewed for contraband be placed on the bed when it is necessary to move it. While all materials in the cell, including legal materials, are searched for contraband, there is no requirement that the property be returned to its original place.
*12 In and of itself, the fact that CP inmates may have to spend time re-organizing legal materials after a search does not persuade the Court that defendants have failed to comply with this provision of the Modified Consent Decree. There is no credible evidence that any scattering of legal materials during searches of class members’ cells has occurred for improper purpose, rather than as the result of time limitations, security concerns, and other conditions applicable to the search. Moreover, there is no federal constitutional prohibition against the handling of property during cell searches, see Hudson v. Palmer, 468 U.S. 517, 522–30 and 528 n. 8, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (finding the Fourth Amendment does not prohibit searches and seizures of property from prison cells), except perhaps to the extent either the searches are retaliatory in nature, Scher v. Engelke, 943 F.2d 921 (8th Cir.1991), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992), or any interference with legal materials infringes on the inmates’ constitutional right of access to the courts, see Tyler v. “Ron” Deputy Sheriff, 574 F.2d 427 (8th Cir.1978) (per curiam) (claim regarding temporary confiscation of legal material). Here, there is no indication that mishandling of class members’ legal materials during cell searches resulted from retaliatory conduct by the searching officials60 or actually interfered with the inmates’ access to the courts. Accordingly, under the circumstances, the Court may consider granting the
7

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
motion to vacate with respect to this provision of the Modified Consent Decree.61
With respect to the religious services provision, plaintiffs contend that they are permitted religious services twice a week and there is only one chaplain who reportedly makes the chapel more available to Caucasian inmates than to African American inmates. Plaintiffs also contend that the quiet room on each unit provided under the Modified Consent Decree for the conduct of religious services is used for other activities. While not disputing that numerous activities take place in the quiet rooms, defendants respond that access to each housing unit’s quiet room is limited to inmates in that unit. Defendants also report that the prison’s chaplain conducts nondenominational services for those of the Protestant faith, while other services are conducted by volunteers or inmate members of the faith. Based upon security concerns, PCC’s policy requires that all group religious services be conducted under supervision. Affidavits filed of record indicate that, on occasions when personnel were not available to supervise a group’s service, the location of the service has been changed to permit the conducting of the meeting or the meeting has been cancelled.
Reasonable limitations on participation in group religious services based on security concerns are constitutional, particularly where the free exercise of religion is not totally abridged and is reasonably accommodated. See, e.g., Garza v. Carlson, 877 F.2d 14 (8th Cir.1989); Butler–Bey v. Frey, 811 F.2d 449, 451–52 (8th Cir.1987); Otey v. Best, 680 F.2d 1231 (8th Cir.1982). The unequal use of a prison’s chapel by various religious faiths in and of itself does not constitute either a free exercise violation or improper discrimination. Thompson v. Kentucky, 712 F.2d 1078, 1080–82 (6th Cir.1983).
*13 The available record does not disclose any impermissible limitations on the conduct of religious services to be attended by more than one plaintiff class member, either in violation of the Modified Consent Decree or as a federal constitutional violation.62 There is no indication that CP inmates have been precluded from attending available religious services in the chapel, in the “quiet” rooms, or in other PCC facilities. The Modified Decree does not limit use of the “quiet rooms” to religious services only. Nor does that decree specify how often religious services are to be held or how many religious leaders must be available for class members. Accordingly, the record demonstrates that the Court may consider granting the motion to vacate with respect to the religious services provision.
With respect to the provisions requiring the availability of telephones for collect personal calls and calls to attorneys, plaintiffs argue that there are no tables or shelves under the telephones to permit the taking of notes or the reviewing of documents while on the telephone; local or

“1–800” telephone calls are not permitted; and there are an insufficient number of telephones in each housing unit for general population. With respect to administrative segregation inmates, plaintiffs object that they are allowed only one telephone call per month, with additional calls to lawyers permitted only if the attorney initiates the request.63 Additionally, plaintiffs assert, administrative segregation inmates are cuffed behind their back and not assisted in holding the receiver or taking notes during telephone calls.64
Defendants counter the “1–800” and “1–900” telephone calls are prohibited due to the potential for fraud and local calls are permitted but must be made “collect.” With respect to the number of telephones, defendants report that telephone usage is evaluated by the company providing inmate telephone service, so that telephone instruments may be added or removed based on the amount of usage.65 Defendants also report that both administrative segregation and disciplinary segregation CP inmates are allowed one personal telephone call every thirty days (with more permitted if approved by the functional unit manager due to an emergency); legal calls are available to administrative segregation CP inmates if requested by the attorney or if an inmate’s written request is approved; and one legal call is available to disciplinary segregation inmates every ten days (although only one personal telephone call every thirty days is permitted, even if several disciplinary periods are run together).
Prisoners do not have a right to unlimited telephone calls. Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir.1992); Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir.), cert. denied, 493 U.S. 895, 110 S.Ct. 244, 107 L.Ed.2d 194 (1989). Reasonable restrictions on personal telephone calls may be imposed. Benzel, 869 F.2d at 1108 (upholding, against challenges based on equal protection and free speech provisions of the federal constitution, requirements that prisoners in administrative segregation and detention submit a list of three individuals who may receive telephone calls and that such inmates’ personal calls may only be made to listed persons). Restrictions on telephone calls to counsel may also be imposed so long as prisoners have some manner of access to counsel and the courts. Pung, 984 F.2d at 953; Aswegan, 981 F.2d at 314. Furthermore, the fact that inmates’ telephone calls must be “collect” is not unconstitutional. Aswegan, supra (finding a state penitentiary’s prohibition against prisoners making toll free telephone calls, even to 1–800 numbers, not violative of the federal constitution’s court and attorney access requirements); cf. Griffin–El v. MCI Telecommunications Corp., 835 F.Supp. 1114, 1122–23 (E.D.Mo.1993) (finding a requirement that the telephone operator identify a Missouri inmate’s telephone call “as a collect call from a correctional institution” did not violate any federal constitutional right to privacy and, in any event, was reasonable).
8

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
*14 In general, the evidence indicates that calls by CP inmates in minimum custody and general population have been available during the time those inmates are released from their cells, approximately eight to ten hours per day. For those in a segregated custody status, telephone calls to attorneys have been permitted either upon request of the attorney or, with approval of a function unit manager, upon the inmate’s request; and one personal call per month is permitted.66 For some periods of time, a CP inmate in administrative segregation was permitted telephone calls to attorneys upon the inmate’s request. Although inmates in administrative segregation have been handcuffed during telephone calls,67 secure booths have been constructed in the housing units to permit segregated inmates to be cuffed as they are moved to the booth and uncuffed once they are in the booth for the telephone call.
Plaintiffs’ objections regarding telephone access do not implicate the terms of the Modified Decree. That decree requires all inmate telephone calls to be “collect.” Thus, the fact that class members must make collect calls only is not violative of that decree. Furthermore, that decree does not set forth: the number of telephone instruments that must be available to class members; the number and frequency of either personal calls or calls to attorneys that class members may make; or requirements for amenities available during the telephone calls. Thus, the allegedly small number of telephones available to class members; limitations on the number and frequency of telephone calls available to segregated class members; the absence of a shelf or table by the telephone instruments; and the cuffing of certain segregated inmates during the placing and duration of the telephone calls are not violations of the Modified Decree. Finally, the evidence does not persuasively indicate the duration of telephone calls by plaintiff class members is now being shortened in a manner contrary to the terms of the Modified Decree.68
Moreover, the record does not establish that the policy and practice regarding the placing of telephone calls by class members violates the federal constitution. The restrictions appear reasonable in light of defendants’ concerns regarding both internal prison security and the prevention of fraudulent billing and harassment of those outside the institution. Additionally, telephone access to counsel is only one of several methods of access to counsel available to plaintiff class members. Visits and written correspondence are also available for communicating with CP inmates’ attorneys. Plaintiffs did not establish actual prejudice or denial of access to the courts and counsel as the result of telephone access policies and practices applicable to the plaintiff class. Importantly, there is no indication of record that CP inmates have been unreasonably denied access to the telephone for either personal calls or calls to attorneys for unduly prolonged periods of time. Under the circumstances, the Court may consider vacating the telephone access provisions of the Modified Consent

Decree.
*15 With respect to the Medical Services section of the Modified Consent Decree, plaintiffs contend they have not consistently received either prescribed medications within twenty-four hours of the prescription or visits with the eye doctor within eight working days of the submission of a Medical Services Request form (“MSR”) seeking such services.69
Defendants respond that they are making good faith efforts to comply with these time requirements but have not been able to do so at all times. Defendants point out that they provide quality medical care to all class members.70
PCC provides medical services twenty-four hours a day, seven days a week in PCC facilities consisting of three private examination areas,71 a dental clinic, an eye clinic with ophthalmia and retinal scopes, and an emergency area. Until November 30, 1992, the MDCHR’s licensed medical staff at the PCC included a physician, an eye doctor, a dentist, three registered nurses, ten licensed practical nurses, an x-ray technician, and a lab technician. The physician was on the premises twice a week for twenty to thirty hours; the eye doctor was at the PCC four hours per week; and the dentist was on site twenty four hours per week. After December 1, 1992, medical services at the PCC have been provided through the MDCHR’s contract with Correctional Medical Systems (“CMS”). Under the contract, CMS provides a staff physician at least three times a week for a total of twenty-four or more hours, a dentist twenty hours per week, an optometrist approximately six hours per week, two administrative and supervisory nurses, registered and licensed practical nurses, an x-ray technician, a dental assistant, and a records clerk. A referral system and off-premises care is available for those inmates requiring medical attention that may not be provided by medical staff at the PCC. Medical care provided to PCC inmates is reviewed by supervisory medical personnel periodically on a regular basis, and through consideration of grievances and letters submitted by inmate patients.
Before December 1, 1992, in stock prescribed medications were usually distributed within twenty-four hours. If the medication was not available on site, then the medication was ordered and distributed to the inmate promptly, within one to five days. Under CMS’ operation, efforts are made to obtain emergent medications the day they are prescribed and nonemergent medications within twenty-four to forty-eight hours of the prescription. The nursing staff distributes the medications.
The nursing staff72 conducts sick call five days a week, processes medications, gives immunizations and flu shots, distributes medications where necessary, performs necessary medical testing and allergy checks, takes
9

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
medical histories, triages MSRs, provides emergency care, and cares for infirmary patients. In addition to specialized care, the physician performs physical examinations.
To obtain medical care, CP inmates must complete an MSR.73 Nursing staff triage the MSRs and, depending on the nature of the complaint(s), schedule the inmates for nursing or doctor’s sick call. When CP inmates are in a segregated custody status, nurse’s sick call is held either in a room on the housing unit or in the inmate’s cell, unless the problem requires that the inmate be escorted to the clinic. For non-emergency conditions, an appointment to see a nurse is scheduled within one to three days after submission of an MSR, whereas an appointment with a physician is scheduled from one to seven days after submission of an MSR. Efforts are made, including the rescheduling of non-CP inmate appointments, to schedule CP inmates to see the eye doctor and dentist within eight working days of the submission of an MSR clearly requiring the services of the eye doctor or dentist.
*16 It is undisputed that deadlines in the Modified Consent Decree for the distribution of prescribed medications and the provision of plaintiff class members with access to the eye doctor have not been satisfied in every instance. The record shows that at most there may be a two to four week delay in visiting the eye doctor and a five day delay in obtaining prescribed medications.
While such delays violate the express terms of the Modified Consent Decree, there is no indication that defendants’ failure to comply with the relevant time deadlines resulted from bad faith efforts not to provide those services in a timely manner. Nothing demonstrates that the delays constituted defendants’ ignorance or improper refusal of a request for medical treatment. Rather, the record establishes that, when medications were prescribed for a CP inmate or a CP inmate’s need for eye doctor services was determined, efforts were made promptly to obtain such services. Any delays resulted from staff shift changes; the limited amount of time the eye doctor was on site each week; and the fact neither certain medications nor a pharmacy are on PCC’s premises.
A delay in the provision of medical care to prisoners may, under certain circumstances, be a constitutional violation. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (deliberate indifference to prisoner’s serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment); Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th Cir.1995) (“[d]eliberate indifference may include intentionally denying or delaying access to medical care, or intentionally interfering with treatment or medication that has been prescribed”). Here, the delays in providing prescriptions or eye doctor appointments within

the deadlines of the Modified Decree do not establish constitutional problems in the delivery of medications and eye doctor care to CP inmates. There is no indication that the delays constitute a deviation from professional standards so as to amount to the deliberate indifference to class members’ serious medical needs. Czajka v. Caspari, 995 F.2d 870, 872 (8th Cir.1993) (per curiam) (affirming the granting of summary judgment in favor of defendant prison officials upon finding no evidence that delay in scheduling inmate’s surgery deviated from professional standards so as to amount to deliberate indifference). Nor is there any indication that class members needing emergency medical care were adversely affected by the failure to comply with the deadlines. Givens v. Jones, 900 F.2d 1229, 1233 (8th Cir.1990) (finding prisoner’s claim for delay of one month between complaint of leg pain and visit with doctor was insufficient to state a constitutional claim absent allegations the condition required immediate attention or the delay in treatment aggravated the condition).
Under the circumstances, the Court may consider vacating the Medical Services section of the Modified Consent Decree.
*17 With respect to the Classification section of the Modified Decree, plaintiffs contend that decree’s tiered system sets forth “specific criteria for what offense or misbehaviors would result in reduction of classification” so that CP inmates knew how long the more severe confinement would last and what behaviors were required to obtain a better confinement status. Now, plaintiffs contend, the criteria for demotion “is solely within the discretion of the staff” and may result in an “indefinite stay in the most harsh and restricted level of confinement” for the duration of the class member’s life. Individual class members also complain of reportedly long periods of time in administrative segregation under circumstances where other inmates receive a shorter period of time; and arbitrary placement of class members “in the hold” absent a violation of an institutional rule.
Defendants respond that the decree does not encompass special criteria for the movement of CP inmates through the classification system; placements in administrative segregation for indefinite periods of time have been possible whether under the Modified Decree or under the policies applicable after mainstreaming; prisoners may be placed in an administrative segregation status in the absence of a conduct violation; and an inmate’s placement in administrative segregation is subject to periodic review.
The Classification section of the Modified Decree states in relevant part only that there are “contemplate[d] 4 classifications: Minimum Custody CP; [Medium] Custody CP; Close Custody CP; [and] Administrative Segregation,” as well as disciplinary segregation and protective custody for CP inmates. Section III.7.a at page
10

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
12 of the Modified Consent Decree. Because of the non-specific language of the Modified Consent Decree regarding the classification of CP inmates, the objections of the plaintiffs regarding criteria for the tiered classification system cannot be addressing the express terms of that decree.
Instead, these objections appear to rely on terms of SOP 21–1.5, the SOP that was promulgated by defendants upon the 1989 transfer of the CPU from the MSP to the PCC. In relevant part that SOP defines the custody classifications and sets forth criteria for the movement of CP inmates among the classifications, as well as the privileges CP inmates may receive in each classification. Section III.B.6 through Section III.B.8 at pages 5 through 13 of SOP 21–1.5. Because no language in the Modified Consent Decree expressly incorporates that SOP, the Court is not persuaded the terms of that SOP are part of the Modified Decree.74 See United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975) (finding a consent decree must be construed basically as a contract, including in relevant part consideration of “any other documents expressly incorporated in the decree”; and finding under the circumstances that an appendix and a complaint “were proper aids to the construction” of the relevant consent order).
*18 Even assuming the classification terms of the SOP are necessary to clarify the otherwise undefined classifications set forth in the Modified Consent Decree, the Court finds plaintiffs’ objections unpersuasive. The “Criteria” provision in the SOP expressly states that “[c]lassification decisions shall be in the sound discretion of the institutional staff.” Section III.B.6 at page 5 of SOP 21–1.5. Additionally, the “[c]riteria for progressive placement” only sets forth certain conduct and time periods that will make the CP inmate “eligible” for progression to a better classification. Section III.B.7(a) at pages 7–8 of SOP 21–1.5. Therefore, a CP inmate’s movement within the classification system applicable to the CPU was not as clearly and mandatorily delineated as plaintiffs urge; and was based on the custodial officials’ discretion even when plaintiffs’ conduct and the passage of time complied with the requirements set forth in the SOP. Whether or not officials properly exercised their discretion as to classification placements in light of particular class members’ circumstances and relevant guidelines is not properly before the Court in this case.75
Plaintiffs also contest the placement of CP inmates for up to thirty days, rather than up to ten days, in disciplinary segregation as a sanction for serious or major conduct violations. Defendants respond that the duration of the potential sanction was lengthened in accordance with an amendment of IS21–1.4.
The Modified Consent Decree states in relevant part that

“death-sentenced inmates can be placed on disciplinary segregation status for 10 days or less pursuant to Division Regulation IS21–1.4 (212.010).” Effective February 1, 1992, MDCHR amended IS21–1.4 so as to provide that “[i]nmates may be placed in disciplinary segregation up to ... [a] maximum of 30 continuous calendar days for major conduct violations.” This amendment was available in the institution’s law library and is reflected in the Inmate Rulebook which was effective November 1, 1992, and distributed to class members in November, 1992.76 Although there is some evidence that, prior to November 1, 1992, CP inmates received more than ten days in disciplinary segregation as a sanction for conduct violations, there is no indication of the earliest date on which a CP inmate received such a sanction.
The Court does not find the application of the thirty day disciplinary segregation period to class members violative of the Modified Decree or a barrier to vacating the Classification section of that decree. That decree’s reference to the ten day period is not isolated. The Modified Decree does not simply state “death-sentenced inmates can be placed on disciplinary segregation status for 10 days or less.” Instead, immediately following the phrase “10 days or less” is the phrase “pursuant to Division Regulation IS21–1.4 (212.010).” Thus, the regulatory authority for the ten day period of disciplinary segregation is expressly and immediately referenced; and is clearly the basis for the ten day period. When that regulation was amended77 with respect to the permissible period for disciplinary segregation, it was appropriate for the new period of time to be applied to class members.
*19 Plaintiffs further assert that defendants violated the Modified Decree in that plaintiffs did not agree to the changes in the classification system applicable to them and the Court did not approve those changes prior to their implementation.78 Defendants counter that the Modified Decree does not require either the plaintiffs’ consent or the Court’s approval for the classification changes they made. The Court does not find plaintiffs’ present objections persuasive.
As noted earlier, see footnotes 40 and 41 supra, unlike the Original Decree, the Modified Decree does not require the defendants to amend any regulation regarding the CP inmates’ classification system so as to reflect the terms of the Modified Decree; does not require the parties to make efforts to resolve disputes regarding changes in the classification system; and does not require defendants to furnish plaintiffs’ counsel with any inter-office communications affecting or implementing the classification system or decree. Instead, the Modified Decree only requires that counsel for plaintiff class (i) receive a copy of any proposed modifications to the classification system and (ii) have at least seven days “in which to comment before any such modifications are adopted.” Because there is no explicit requirement that
11

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
plaintiffs agree to proposed changes in the classification system applicable to plaintiffs, plaintiffs’ failure to agree to such changes is not violative of the Modified Decree.
Moreover, although there are assertions plaintiffs’ counsel did not receive copies of any classification modifications prior to their implementation, the record does not support such an assertion. With respect to the mainstreaming, it is clear that, more than a month prior to implementation of the mainstreaming, the parties discussed the possibility of mainstreaming the CP inmates, at least for a short period. Under the circumstances, the Court finds no violation of the prior notice requirements of the Modified Decree or any violation of that decree to the extent the plaintiffs do not agree to mainstreaming.
With respect to the changes implemented through the mainstreaming, the Court does not find the CP inmate classification system modifications resulting from the mainstreaming “inconsistent with the terms and intent” of the Modified Decree.79 Under that decree, CP inmates were subject to classification as: minimum custody;80 medium custody;81 close custody;82 administrative segregation;83 disciplinary segregation;84 and protective custody.85 Although not clearly set forth in the Modified Decree, the record establishes that CP inmates were also subject to a temporary assignment, referred to as prehearing detention, under certain circumstances, such as during the investigation of a conduct violation. Such an assignment resulted in a reduction of privileges otherwise available to the CP inmate.
Under the Modified Decree a CP inmate’s confinement in a particular type of custody was determined at the custodial officials’ discretion pursuant to certain guidelines and was subject to periodic reviews. Sections III.4 through III.7 at pages 4–9 of SOP 21–1.5. Except with respect to a CP inmate’s placement in disciplinary segregation for a set period of time as a sanction for certain conduct, the duration of a CP inmate’s confinement at any custody level varied depending on the inmate’s behavior and history. Sections III.6 at pages 5–6 of SOP 21–1.5.
*20 As a result of the mainstreaming, the CPU has been eliminated. Therefore, CP inmates are no longer subject to restrictions or limitations based solely on the type of sentence they have. This comports with class members’ efforts to eliminate restrictions imposed on them only because of their sentence.
Moreover, they are still subject to a multiple level classification system, with an inmate’s placement in a particular custody level dependent on (a) custodial staff discretion, exercised pursuant to guidelines, and (b) the inmate’s behavior and history. The present custody levels are: general population;86 administrative segregation,87 including temporary administrative segregation

confinement (“TASC”);88 disciplinary segregation;89 and protective custody (“PC”).90 Only disciplinary segregation and TASC placements have finite periods of duration. The other placements have indefinite durations, similar to the classification levels existing under the Modified Decree. While no written document specifies the behaviors that may affect a class member’s classification level, the testimony establishes that factors similar to those set forth in SOP 21–1.5 remain relevant to custody decisions regarding a class member’s movement between an administrative segregation and a general population placement.
For a time after the mainstreaming, CP inmates having administrative segregation, TASC, protective custody or disciplinary segregation status were housed with similarly segregated non-CP inmates. Because CP inmates at these custody levels were permitted amounts of telephone calls and property,91 as well as physical access to the library, which were not available to non-CP inmates at the same custody levels, PCC officials created a separate unit, referred to as the Protective Custody Capital Punishment (“PCCP”) unit, for CP inmates in these segregated custody classifications to ease management and security concerns. See SOP 21–1.6.
Under the circumstances, the Court finds the conditions of CP inmates’ segregated confinement after mainstreaming constitutional and within the purpose of the Modified Decree. Although the potential types of custody levels have changed, the class members are still able to seek improvement in their custody status by altering their behavior and the more restrictive classifications are subject to regular review by custodial officials and their discretion must be exercised within the factors pertinent to the institutions’ concerns. There is no indication of record that defendants are deliberately indifferent to the class members’ conditions of confinement through the policy or practice of the classification scheme. Nor is there any evidence that the plaintiff class is deprived of due process in the consideration and application of the classification system. Thus, the Court may consider vacating the Classification section of the Modified Decree.92
The Modified Decree provides only that minimum custody CP inmates be given the same opportunity for outdoor and indoor recreation as general population inmates at the PCC; that medium custody CP inmates be given the opportunity for indoor and outdoor recreation during day room access; and that close custody and administrative segregation CP inmates have recreation one hour every other day. With respect to this section of the Modified Decree, plaintiffs object that outdoor recreation is limited to the small yards adjacent to the housing units, there is no indoor recreation,93 and protective custody inmates do not have the same opportunity for recreation as general population inmates.
12

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
Defendants counter that protective custody inmates have recreation more limited than general population due to the need to keep protective custody inmates away from general population and other inmates; and those in general population have access to all the recreational facilities at the PCC, whereas those in a segregated status are limited to the recreational facilities available within the housing unit and the policies applicable to the particular custody status.
*21 Although during the time of the CPU’s existence minimum custody inmates may not have had the same number of hours of recreation or the same type of access to PCC’s recreational facilities beyond the CPU as the general population inmates and such limitations now exist for protective custody inmates after mainstreaming, any distinction in access results from the need to secure other areas of the institution each time CP inmates before mainstreaming or now protective custody CP inmates leave their housing unit. This does not mean, however, that minimum custody CP inmates did not have the “same opportunity” as general population inmates for outdoor and indoor recreation. Nothing of record indicates that on a systematic basis, minimum custody CP inmates were denied access to indoor and outdoor recreation during the existence of the CPU. Moreover, while protective custody CP inmates may not have recreation opportunities equal to those in general population now due to their particular security needs, PCC officials have tried to increase their out-of-cell recreation opportunities through group release efforts and the creation of a PCCP unit. Notably, plaintiffs do not object to the amount or type of recreation accessible to general population inmates since mainstreaming.94
With respect to administrative segregation CP inmates, there is evidence that recreation was not consistently provided every other day until, after the hearing in this case, the PCC obtained an exemption from the division’s policy allowing recreation only three times a week. With this exemption, PCC’s policy has been to provide recreation to administrative segregation inmates every other day. Although the failure to comply with the terms of the Modified Decree eliminated one hour of recreation every other week for CP inmates on administrative segregation, the noncompliance did not constitute a total denial of recreation or an unconstitutional denial of recreation. There is no persuasive evidence that PCC officials consistently denied CP inmates on administrative segregation the opportunity for recreation. Moreover, this noncompliance did not result from an effort to treat CP inmates in administrative segregation differently from or worse than non-CP inmates in administrative segregation.
Additionally, the Modified Decree does not specify the type of recreation, i.e., outdoor or indoor recreation, or the location of the recreation, i.e., in the dayroom or in the yard adjacent to the housing unit or in the gymnasium,

that had to be provided to CP inmates on administrative segregation. Therefore, the type of recreation offered to CP inmates on administrative segregation may not be the basis of finding either that defendants failed to comply with the Modified Decree or that this section of that decree may not be vacated.
With respect to the Visiting section of the Modified Decree, plaintiffs object that CP inmates in administrative segregation must visit behind glass partitions;95 that some visits with attorneys have been while the CP inmate was shackled at the wrist and ankle; that protective custody CP inmates have not been allowed contact visits with their family; and that some attorneys have been unable to engage in contact visits with CP inmates.96
*22 Defendants counter that no-contact visits are in an area where the inmate is physically separated from the visitor but is able to see the visitor and may communicate with the visitor by telephone. This is the type of visit permitted CP inmates while on administrative segregation, both under the Modified Decree and after mainstreaming. As to attorney visits while the inmate is in shackles, visits with counsel are usually contact visits, meaning the inmate and the attorney are in the same room. Such visits may occur while the inmate is in shackles if the attorney requests or when the institution believes security issues require shackling. Furthermore, protective custody CP inmates may not be permitted contact visits with family members because contact visits occur in a large room with numerous prisoners and others present, and protected custody inmates are to have severely limited or no contact with other inmates.
The record supports both sides’ positions. Because plaintiffs’ objections do not address the visiting provisions of the Modified Decree, the Court will not discuss them further and these objections do not prohibit the Court from vacating this portion of the decree.
The Education section of the Modified Decree states that “[d]efendants will provide inmates with an education program for G.E.D.” Plaintiffs object that CP inmates in administrative segregation do not have the opportunity to participate in “any type of educational course.” Defendants respond that administrative segregation inmates may participate in educational courses by correspondence, which are free of charge. General population inmates have a G.E.D. course available to them at the institution. There is no persuasive evidence to support a finding that defendants have not provided CP inmates with educational programs for G.E.D. Significantly, the Modified Decree does not expressly state the manner in which the education program will be provided and does not clearly state that such a program must be provided in a certain manner regardless of the CP inmate’s classification. Because there is no violation of the Modified Decree and no apparent constitutional
13

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
violation with respect to the educational program for CP inmates, the Court may consider vacating this section of the Modified Decree.
With respect to Lighting, the Modified Decree specifies only that defendants “will supply inmates with light bulbs sufficient to provide 20 footcandles of light at the bed and desk level.” Plaintiffs’ objections regarding lighting focus on the presence of light early in the morning or the absence of light late at night. Neither of these matters are addressed by the Modified Consent Decree. The record establishes that the lighting within PCC satisfies the requirement of this section. Nothing of record indicates a violation of the Lighting provision in the Modified Decree or a constitutional deprivation of light. Therefore, the Court may consider vacating this section of the Modified Decree.
*23 The Feeding section of that decree states only that “[d]efendants will make good faith efforts to provide death row inmates with meals on the same schedule that applies to feeding of general population inmates.” Plaintiffs object that almost fourteen hours pass between the last meal of one day and the first meal of the next day; and those CP inmates in administrative segregation receive their meals approximately one hour prior to the general population inmates. While the record supports plaintiffs’ concerns, the record does not support a determination that these aspects of feeding CP inmates either violates the Modified Decree or a provision of the federal constitution. The logistics of serving a large number of inmates in the dining room and also serving a number of inmates in their cells in segregated units not necessarily close to the kitchen areas support a distinction between when the segregated inmates and the general population inmates are served. Serving segregated inmates in their cells within an hour of serving the general population in the dining room appears to be within the bounds of a good faith effort to serve segregated and general population inmates “on the same schedule.” Accordingly, the Court may consider the vacating of this section of the Modified Decree.
Finally, in the earlier discussion of various sections of the Modified Decree, the Court has addressed plaintiffs’ concerns that defendants are not complying with the Equal Access section of that decree. This section of the decree requires CP inmates to have “equal access to all rights and privileges” conferred upon others within their classification status by the decree. There is no indication that unequal access has been provided in violation of this section, except perhaps with respect to any CP inmates designated as no-contact or protective custody CP inmates. The Court has found, however, that any distinctions in those inmates’ access to facilities and privileges as compared to CP inmates not having protective custody status are a result of the former inmates’ need to be kept away from other inmates. The

record demonstrates that all protective custody CP inmates have the same access to the rights and privileges accorded such CP inmates. Thus, any distinctions in access do not require the maintaining of jurisdiction over this section of the decree.
Plaintiffs seek the retention of this Court’s jurisdiction over the Modified Decree so that they have another avenue (through their counsel and this Court) to raise and address concerns regarding their confinement. If this was a proper basis for continuing a Court’s jurisdiction over its injunctive order in a prison conditions case, all such injunctions would remain in effect ad infinitum. As noted earlier, however, injunctions in cases such as this are not to last indefinitely.
Furthermore, there is no dispute that plaintiffs may pursue their concerns regarding conditions of their confinement through written correspondence, the institution’s grievance procedure, and litigation. Plaintiffs contend they have been subjected to harassment and/or retaliation for seeking such relief. The existence of this Modified Decree would not necessarily stop any such alleged harassment or retaliation; and such conduct by the institution’s staff may be the subject of grievances and litigation, if appropriate. There is no indication of record that there is a policy or a general practice to harass or retaliate against those CP inmates who seek relief through written correspondence, the grievance procedure or litigation.
*24 Plaintiffs further urge that the constant changes in the policies at the PCC and the changes in MDCHR and PCC personnel support continuation of this Court’s jurisdiction over this case and the Modified Decree. As with the previous argument, this is not a proper basis for denying the motion to vacate. If it was a proper reason for continuing the Court’s jurisdiction over an injunction in a prison conditions case, then such injunctions would last in perpetuity since corrections officials and policies will inevitably change.
Plaintiffs also raise concerns that defendants will impose unconstitutional conditions on the CP inmates once this Court ends its jurisdiction and terminates the Modified Decree. The record does not support this contention and the Court is not persuaded that defendants will do that. In addition to the Court’s earlier findings, the Court notes defendants did not treat CP inmates more adversely than non-CP inmates after a widespread disturbance occurred at the PCC in August, 1992, in which at least six CP inmates were reportedly involved.
By their motion to reopen fairness hearing, plaintiffs ask the Court to either reopen the fairness hearing or deny defendants’ motion to vacate. Plaintiffs urge that a population increase at PCC and double-bunking in cells designed for single occupancy have put stress on PCC
14

McDonald v. Bowersox, Not Reported in F.Supp. (1995)
staff and facilities resulting in denials of access to necessary medical or dental care, psychological counseling, adequate vocational and educational programs, legal materials and assistance, exercise equipment, and recreational facilities and opportunities; inadequate supervision; inadequate space in the dining area; unconstitutional and dangerous conditions regarding fire safety; increased risk of disease; improper classification; delays in family visitation and attorney visits; a heightened threat of violence; overcrowding in common areas; and a loss of opportunities to utilize hobby-craft facilities or equipment. Plaintiffs concede that CP inmates are not being double-bunked at this time.
By a supplement to the motion, plaintiffs urge a lockdown beginning August 7, 1995, creates unconstitutional conditions of confinement that should be redressed in this proceeding through a Court order denying defendants’ motion to vacate, directing defendants to comply with the Modified Consent Decree, or reopening the hearings.
Upon careful consideration, the Court will deny plaintiffs’ motion to reopen fairness hearing.
The Modified Consent Decree does not expressly address the number of inmates or staff at the PCC; whether or not class members may share cells; the adequacy of vocational and educational programs; class members’ accessibility to legal materials and assistance; plaintiffs’ accessibility to exercise equipment; the adequacy of staff supervision; the adequacy of dining area space; the propriety of classifications; the timing, as opposed to the number, of visits with family members and attorneys; the numbers of persons in common areas; the utilization of hobby-craft facilities or equipment; or the circumstances under which a lockdown may occur, conditions during a lockdown or the duration of a lockdown. Thus, these allegations do not support either the reopening the fairness hearing or the denial of the motion to vacate.
*25 The allegedly unconstitutional conditions pertaining to fire safety also do not support plaintiffs’ requests. The Modified Decree’s Fire Safety section only requires an evaluation by two consultants, their preparation of a report with recommendations, defendants’ implementation of those recommendations, and a follow-up inspection of PCC by those consultants “to ensure the necessary fire safety measures have been implemented.” Defendants complied with this section of the Modified Decree during 1989 and 1990. Plaintiffs’ present contentions do not address the Fire Safety provisions of the Modified Decree and therefore do not require further consideration in this proceeding.
As to the alleged denial of recreational facilities and equipment, plaintiffs have not specified how their recreational opportunities have been denied in a manner inconsistent with the relatively broad terms of the

Modified Decree’s Recreation section. Plaintiffs who are not in administrative segregation do not allege they have received less of an opportunity for recreation than other general population inmates at the PCC. Nor do plaintiffs allege that, as the result of PCC’s increased population, CP inmates in administrative segregation receive less than one hour every other day. The Modified Decree does not expressly address the duration of recreation for CP inmates not in administrative segregation and does not set forth the schedule for and location of recreational opportunities required for any CP inmates.
Furthermore, plaintiffs contend generally that they are denied access to medical care, dental care, and psychological counselling. Such generalizations are inadequate to raise potential problems with the express terms of the Modified Consent Decree. Thus, it is not appropriate to consider those nonspecific assertions in this proceeding.
Plaintiffs rely on a statement in the Mutuality section of the Modified Decree, Section III.1(c) at page 8 of that decree, to support their present motion. The Mutuality section states in full:
a. The responsibilities imposed by this decree are mutual.
b. Damage to or abuse of programs, facilities or equipment by inmates will be a defense in any judicial proceedings on their behalf to cure defects in such programs, facilities or equipment occasioned by that abuse.
c. In the event of continued or consistent abuse or misuse, the nature of which renders such programs, facilities or equipment a risk to the safety and security of inmates, staff or the institution, those programs, facilities or equipment may be substantially modified, suspended, or discontinued to the extent necessary to restore said safety and security. Defendants shall give notice to plaintiffs’ counsel and file a request with the Court for modifying, suspending, or discontinuing programs, facilities, or equipment required by this decree. It is contemplated by the parties to this decree that damage, abuse, or misuse by a single individual will normally be handled by appropriate action as to that individual.
*26 Plaintiffs contend defendants have violated the second sentence of Section III.1(c) of the Modified Decree by failing to give notice to plaintiffs’ counsel and file a request with the Court regarding the August, 1995, lockdown and its attendant restrictions on CP inmates’ activities. The Court disagrees.
Because of its context, the relevant statement focuses on the modification, suspension or discontinuation of PCC
15

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

programs, facilities, and equipment due to CP inmates’ “continued or consistent” abuse or misuse of them. That is not the basis of the August 7, 1995, lockdown. As set forth in plaintiffs’ supplement, the August lockdown occurred upon the discovery that items were missing from the prison chapel. Therefore, defendants’ failure to give notice to plaintiffs’ counsel or to file a request with this Court regarding the restrictions and limitations imposed during the August, 1995, lockdown does not constitute a violation of Section III.1(c) of the Modified Decree or support the granting of plaintiffs’ present requests.

conditions of confinement applicable to CP inmates at the PCC, as shown in this record, meet or exceed the terms of the Modified Consent Decree. The record supports this determination even as to those aspects of that decree that have not been specifically addressed by the Court.97
After careful consideration,
IT IS HEREBY ORDERED that originally named plaintiffs Gerald M. Smith and Rayfield Newlon are DISMISSED as class representatives.

Additionally, plaintiffs’ present concerns are potentially encompassed by at least two lawsuits before the United States District Court for the Eastern District of Missouri. In one lawsuit a certified class, consisting of non-CP inmates at the PCC, seeks injunctive relief based on alleged constitutional violations resulting from the increased population at the PCC. Rentschler v. Schriro, Cause No. 4:94CV00396GFG (E.D. Mo. filed Mar. 30, 1994). In a second lawsuit, the constitutionality of the circumstances surrounding the August, 1995, lockdown at the PCC is the focus. Tyler v. Carnahan, Cause No. 95CV01611CDP (E.D. Mo. received August 18, 1995). To borrow words of the United States Court of Appeals for the Sixth Circuit in its consideration of circumstances surrounding the modification or termination of a consent decree: “not every wrong [of the PCC] can be righted by a decree which is now [6] years old, and the district court may find that other pending litigation offers a better vehicle for addressing any alleged legal wrongs in the [defendants’] policies today.” Dalzell, 925 F.2d at 961–62. A different proceeding is a better vehicle for addressing plaintiffs’ most recent challenges to the conditions of their confinement.

IT IS FURTHER ORDERED that Mel Carnahan and Dora Schriro are SUBSTITUTED for the individuals previously named as the defendant Governor of the State of Missouri and as the defendant Director of the MDCHR, respectively.
*27 IT IS FURTHER ORDERED that Michael Bowersox is SUBSTITUTED for Paul Delo as the defendant Superintendent of the PCC.
IT IS FURTHER ORDERED that any pending request for the appointment of new counsel for plaintiffs is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion to reopen fairness hearing is DENIED.
IT IS FURTHER ORDERED that defendants’ motion to vacate is GRANTED so that the Modified Consent Decree, filed May 10, 1989, is VACATED and the Court’s jurisdiction over this matter is TERMINATED.
An appropriate order will accompany this memorandum and order.

Under the circumstances, the Court will vacate the decree,

	  

terminate its jurisdiction, and dismiss this case. The

Footnotes

1

When this lawsuit was filed and certified as a class action, Samuel L. McDonald, Gerald M. Smith, Rayfield Newlon, Thomas

Battle, and Alan J. Bannister were the named class representatives. Since that time, Gerald M. Smith has been executed and

Rayfield Newlon has been resentenced and is no longer confined under a death sentence. Accordingly, the Court will delete them

as named class representatives.

2

In the May 10, 1989, order of the United States District Court Judge presiding over this case before it was transferred from the

United States District Court for the Western District of Missouri to this Court, the positions of the defendant officials were

identified as: the Governor of the State of Missouri; the Director of the Missouri Department of Corrections and Human Resources

(“MDCHR”); the Director of the Missouri Division of Adult Institutions within the MDCHR; and the Superintendent of the Potosi

Correctional Center (“PCC”), the state correctional institution where the male members of the plaintiff class are now confined.

Order dated May 10, 1989, at 7, affirmed, McDonald v. Armontrout, 908 F.2d 388 (8th Cir.1990). Paul Delo, the Superintendent of

the PCC, and George Lombardi, the Director of the Division of Adult Institutions for the MDCHR, were expressly substituted for

the individuals previously named as the defendant Superintendent and the defendant Director of the Division of Adult Institutions

for the MDCHR. See page 1, footnote 1 of the memorandum and order, dated September 24, 1990. Individuals other than those

previously named in this lawsuit now hold the positions of Governor of Missouri and Director of the MDCHR: Mel Carnahan and

Dora Schriro, respectively. Accordingly, the Court will substitute those individuals for John Ashcroft and Dick Moore,

respectively, the individuals who held those positions before. Additionally, the Court was recently advised that Paul Delo is no

longer the Superintendent of the PCC and Michael Bowersox has been named to that position. Therefore, the Court will substitute

Bowersox for Delo as the defendant Superintendent in this case.

16

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

3

The Court has construed this motion as a motion to vacate the consent decree and to terminate its continuing jurisdiction over this

matter. See footnote 2 at page 5 of the Court’s July 8, 1991, memorandum and order. Therefore, the Court will refer to this motion

as a motion to vacate.

4

Specifically, plaintiffs contended defendants were violating: (1) plaintiffs’ right to be free from cruel and unusual punishment by

subjecting plaintiffs “to conditions that [ (a) ] offend minimal concepts of dignity and civilized standards of human decency,” (b)

are excessive and disproportionate to legitimate correctional objectives, and (c) demonstrate a deliberate indifference to the basic

medical and psychological needs of the plaintiffs; (2) plaintiffs’ rights to substantive and procedural due process of law by

arbitrarily depriving plaintiffs, without a meaningful hearing or classification proceeding, of their right to be free of conditions

“equal to or worse than conditions of administrative or punitive segregation”; (3) plaintiffs’ right to equal protection of the laws by

“singling them out for confinement under the conditions alleged ... solely on the basis of their sentencing status”; (4) plaintiffs’

right to access to the courts and assistance of counsel by failing to provide plaintiffs “with meaningful access to legal materials and

an effective means of communicating with counsel and the courts”; and (5) other rights under the First, Eighth, and Fourteenth

Amendments by (a) interfering with plaintiffs’ incoming and outgoing mail, (b) restricting plaintiffs’ visits, and (c) refusing to

allow plaintiffs to attend group religious services.

5

References to the Original Consent Decree or Original Decree are references encompassing the following documents: the consent

decree submitted by the parties for approval on May 22, 1986, as amended by the parties’ December 15, 1986, addendum to

consent decree, see order, filed December 15, 1986, and approved by the Western District in its January 7, 1987, Final Judgment,

and as further amended by the Western District’s September 10, 1987, clarifying order and the parties’ December 3, 1987,

Memorandum of Agreement. The record reflects that various issues arising under this consent decree were addressed throughout

the course of these proceedings and were resolved either by the Court; by counsel for the parties both during and outside of judicial

proceedings; by the class members themselves, i.e., issues pertaining to telephone access; or by the Special Probation Officer

appointed by the Western District to address certain issues, see, e.g., April 25, 1988, letter to counsel from Dennis W. Nielson.

While resolution of those issues may have affected the implementation of the Original Decree, it is not clear that the resolution of

all such issues affected the terms and provisions of that decree. Under the circumstances, the Court will rely on the terms and

provisions set forth in the documents enumerated in the first sentence of this paragraph as the terms and provisions of the Original

Consent Decree.

The December, 1987, Memorandum of Agreement (“Memorandum Agreement”), as well as the parties’ “Guidelines for a

Special Probation Officer,” which was filed September 28, 1987, reflect the parties’ efforts to resolve outstanding issues raised

in plaintiffs’ then-pending motion for contempt and for appointment of a special master, filed March 2, 1987. Certain other

matters raised by that motion had been resolved during a two day hearing conducted by the Western District in June, 1987. This

Court does not find of record a written ruling by the Western District expressly approving or adopting the Memorandum

Agreement. Both the Western District and the parties, however, have consistently treated that document as though it was part of

the Original Consent Decree. See, e.g., pages 1 through 2 of the May 10, 1989, order (“The Memorandum Agreement filed on

December 3, 1987 modified and supplemented the Consent Decree and was approved by this Court”); pages 9 through 11 and

exhibit 1 of defendants’ Plan to Implement the Consent Decree at the PCC, filed March 28, 1989 (summarizing whether and to

what extent terms of the Memorandum Agreement would be implemented when the Capital Punishment Unit at the MSP was

moved to the PCC); pages 8 through 11 of defendants’ Compliance Report for the Fourth Quarter of 1988, filed March 15, 1989

(reporting on defendants’ compliance with the provisions of the Memorandum Agreement in addition to their compliance with

the Original Consent Decree’s provisions); pages 9 through 13 of defendants’ Compliance Report for the Third Quarter of 1988,

filed November 1, 1988 (same); pages 9 through 12 of defendants’ Compliance Report for the Second Quarter of 1988, filed

September 16, 1988 (same); and pages 10 through 13 of defendants’ Fourth Quarterly Compliance Report, filed May 4, 1988

(same). Therefore, the Court construes the Original Consent Decree as encompassing the terms of the December 3, 1987,

Memorandum Agreement. The parties’ dispute as to whether or not the May 10, 1989, decree incorporates the terms of that

Memorandum Agreement will be addressed later in this memorandum and order.

6

This unit has also been referred to as “death row.”

7

At the time this lawsuit was filed, no females under sentence of death were confined in Missouri state correctional facilities. Thus,

the class members consisted only of males confined under sentence of death by the MDCHR. Since the filing of the lawsuit,

however, several females have been confined under sentence of death by the MDCHR. Defendants’ efforts to exclude females

from the certified class have not been successful. See, e.g., memorandum and order, filed December 10, 1990, denying defendants’

motion for modification of the class definition, filed July 19, 1990, and defendants’ motion to discharge female capital punishment

inmates from consent decree, filed August 6, 1990; memorandum and order, filed September 28, 1989, denying without prejudice

defendants’ motion for modification of the consent decree and memorandum agreement, filed May 30, 1989; order filed August 1,

1988, denying defendants’ motion to amend the class definition, filed July 21, 1988. While the certified class encompasses female

prisoners confined under sentence of death, during the pendency of this lawsuit such class members have not been confined at the

same institution as the male class members. Unless otherwise specified, references in this ruling to class members will be

references to male class members only.

8

This contempt motion focused in particular on conditions pertaining to medical care, telephone access, recreation, classification,

17

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

personal property, staff training, and visitation, as well as defendants’ alleged failure to file the required quarterly reports. By stipulation of the parties, the only matters that remained in dispute at the time of the three day evidentiary hearing on the motion were (1) indoor/outdoor recreation for medium and close custody inmates; (2) changes in an individual’s classification based on written conduct violations; (3) placements in administrative segregation pending investigation; (4) allowing only non-contact visits when a class member is under investigation; (5) access to caseworkers; (6) coordination of defense attorney visits; (7) personal property rights; (8) access to legal supplies, particularly the price of such supplies; (9) access to the telephone; (10) sick call by nurses; (11) the discontinuation of medication without consultation or offering alternate treatment; (12) legal research; and (13) electricity.

9

By this motion, defendants had also sought an order denying as moot plaintiffs’ contempt motion. The Court has denied the

contempt motion without prejudice and the motion to deny the motion for contempt as moot. See memorandum and order, filed

April 16, 1994. Accordingly, neither the motion for contempt nor the portion of the motion to vacate that seeks the denial of the

motion for contempt are now before the Court.

10

In United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), the Supreme Court required a showing of a

“grievous wrong evoked by new and unforeseen conditions” to support the modification of a consent decree enjoining conduct. Id.

at 119. The United States Supreme Court subsequently rejected the “grievous wrong” standard of Swift and adopted a more flexible

standard for the consideration of requests to modify or dissolve decrees in institutional reform cases, such as this one. Dowell,supra

(discussing the vacating of a court-imposed decree entered after finding intentional segregation on the basis of race in the public

schools); Rufo,supra (discussing the modification of a consent decree entered after finding pretrial detainees were subject to

unconstitutional jail conditions); accord Appeal of Little Rock Sch. Dist., 949 F.2d 253, 258 (8th Cir.1991) (noting the adoption of

the flexible standard).

In Dowell, the Supreme Court rejected the “grievous wrong” standard because the relevant decree was “not intended to operate

in perpetuity.” Dowell, 111 S.Ct. at 637; cf. In re Pearson, 990 F.2d at 658 (finding it proper for a district court sua sponte to

appoint a special master to analyze, among other things, the “continued viability” of consent decrees in an institutional reform

case). Here, as in the Original Consent Decree, the May 10, 1989, decree contains provisions stating that the Court will retain

jurisdiction “to insure compliance with [the decree’s] provisions until such time as all provisions of th[e] decree have been fully

implemented.” Paragraph 20 at page 19 of the May 10, 1989, decree. Additionally, no other language in the May 10, 1989,

decree intimates that it is to operate in perpetuity. Under the circumstances, the Court will apply the more flexible standard,

rather than the “grievous wrong” standard, to the motion to vacate.

11

The Original Consent Decree also has approximately three pages of introductory paragraphs. In addition to summarizing the status

of the case at the time the Court approved the parties’ consent decree, the introduction includes observations that portions of the

decree depend on appropriations by the state legislature for implementation; defendants would make their best efforts to request

and secure such appropriations promptly; and non-compliance with the decree’s terms as the result of a failure to obtain the

necessary funds would not result in a finding that defendants were in contempt. The introductory paragraphs also state:

Although no findings of fact or conclusions of law are made by the Court, this decree contemplates and is intended to

eliminate any conditions of confinement which may deny the inmates sentenced to death the rights, privileges, and immunities

secured to them by the Constitution and the laws of the United States.

12

Although the Western District had only recently approved the Original Consent Decree, defendants had implemented the decree

upon its filing in May, 1986.

13

These letters are attached to defendants’ reply to plaintiffs’ response to defendants’ motion to stay, and are not attached to

defendants’ response to the contempt motion.

14

With respect to recreation issues, the Memorandum Agreement provided for: the equal division lengthwise of two 20′ x 50′ outdoor

recreation yards, and the placement of basketball goals at one end of each of the four resulting yards for use by either no-contact

status CP inmates or CP inmates who specifically request use of such an individual recreation area; the provision of a weight

machine on a concrete pad in another 24′ x 50′ outdoor recreation yard; the construction of a new 50′ x 50′ concrete padded

outdoor recreation yard with two basketball goals at each end; the expansion of a grassed outdoor recreation yard from 36′ x 90′ to

50′ x 85′; and the construction of an additional 50′ x 75′ outdoor recreation yard. Additionally, defendants were to: insure that

during construction there was sufficient space to permit recreation without disruption of the recreation schedules set forth in the

Original Consent Decree; provide plaintiffs’ counsel with copies of the written materials addressing the proposed construction, to

permit review and comment by plaintiffs’ counsel prior to the commencement of construction; furnish plaintiffs’ counsel with

proposed recreation schedules for use of the yards during and after construction, with any modifications to those schedules

provided to plaintiffs’ counsel before the modifications were implemented; limit recreation to no more than eight inmates in a

group at a time, absent plaintiffs’ consent and approval; and “not subdivide the yards or modify the space available for recreation

without plaintiffs’ consent.”

15

With respect to fire safety, the Memorandum Agreement provided that, until “the electronic lock capital improvement project for”

the housing unit was complete, keys necessary to unlock the CPU walks and cells would be kept “in the bubble located in the

central corridor” of the housing unit, and that “bubble” would be staffed twenty-four hours a day. Once the electronic lock capital

improvement project was completed, the Memorandum Agreement expressly stated defendants did not have to staff the “bubble”

18

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

twenty-four hours a day. Additionally, rugs confiscated from cells would be returned to the inmates after fire-proofing; rugs could be purchased by inmates from the canteen or vendors; and all rugs would be treated every eight months with the fire-proofing solution recommended by the consultants.

16

With respect to medical services, the Memorandum Agreement provided that defendants would continue their efforts to hire a

pharmacist or contract for pharmaceutical services to staff the institution pharmacy nights, weekends, and holidays; class members’

prescriptions would be given priority to insure delivery of the medication within twenty-four hours as required by the Original

Consent Decree; and, with the exception of emergency treatment, medical examinations, evaluations or treatment by physicians

would be conducted in the CPU’s privacy cells, the hospital or the appropriate clinics, and not in the inmates’ cells.

17

The sanitation section of the Memorandum Agreement noted that defendants had received funds to conduct a study of the

renovation of the heating and ventilation systems used on the CPU; that the ventilation systems would be replaced in accordance

with the consultants’ recommendations, with defendants presenting a request for the necessary funding no later than January, 1988,

and making good faith efforts to secure the necessary appropriations; that the consultants would be meeting with defendants to

establish a completion schedule for this replacement project; and all spoiled or damaged foodstuffs would be marked, denatured

and then removed within six weeks or less, with a log kept of the dates of discovery, denaturing and removal.

18

With respect to personal property, the Memorandum Agreement established a committee of four inmate representatives selected by

plaintiffs and no more than four representatives of defendants to meet within a week, and then annually, to compose a list of

personal property authorized for each inmate in regular custody or regular custody-no contact status and a list of personal property

authorized for each inmate in closed custody. The Memorandum Agreement stated that the committee’s lists would be submitted to

the warden for review and approval, with approval withheld for security reasons only. Any unresolved disputes were to be

submitted to the Special Probation Officer for resolution, with appeal to the Court possible.

This “joint personal property committee” was also to recommend to defendants “an appropriate selection of video games” to be

purchased by the institution for inmates’ use. At least two video games were to be provided to each walk of the CPU, with

games checked out upon an inmate’s request for a period of no less than two hours.

The Memorandum Agreement further stated that legal supplies, including specified items, could be purchased by inmates from

outside vendors, although defendants would continue to furnish indigent CP inmates with such supplies and would provide all

CP inmates with any legal materials defendants supplied to general population inmates who were not indigent. Moreover, legal

supplies for which inmates were charged were to be sold “at the price paid for them by defendants.”

19

With respect to new arrivals, the Memorandum Agreement provided that plaintiffs’ counsel, “after consultation with appropriate

mental health professionals and experts,” would submit to defendants’ recommendations for the treatment of new arrivals to the

CPU, taking into consideration defendants’ need to protect new arrivals from potential suicide attempts. If the parties were unable

to agree on the treatment of new arrivals, then the matter would be submitted to the Special Probation officer who could make a

recommendation to the court.

The Memorandum Agreement explicitly noted that, at the time of filing,

new arrivals are placed in detention cells located on the end of the walk. All clothing, bedding, personal property, reading

material and items of personal hygiene are taken from them. Their movements are monitored twenty-four hours a day by a

video camera and a light is left on in their cell or shines into their cell constantly.

20

The window screening section of the Memorandum Agreement directed “[d]efendants [to] remove the expanded metal screens

from the windows on the south side of both B and C walks forth-with.”

21

In the new facilities section of the Memorandum Agreement, defendants were required, at least sixty days prior to filing a motion

in Court, to provide to plaintiffs’ counsel for review and comment and to the Special Probation officer “any plans to expand death

row to any other area or facility.”

22

With respect to new construction and modifications, the Memorandum Agreement directed defendants to furnish plaintiffs’

counsel, for review and comment prior to commencement of work, any written materials pertaining to proposed or contemplated

construction or modification projects covered by the terms of the Memorandum Agreement or the Original Consent Decree.

23

The visiting section of the Memorandum Agreement stated that CP inmates would be advised of the proposed dates for contact

visits as soon as they were available to defendants and that caseworkers must consult with the CP inmates about scheduling such

visits to insure the visitors would be available for the full three hour time period.

24

Defendants sought court approval contingent on the consultants finding no fire safety, environmental, and sanitation reasons to

prevent the move. After a pre-move tour, with counsel and others, of PCC’s Housing Unit 1, which was to be used for CP inmates

subject to disciplinary segregation, and PCC’s Housing Unit 3, which was to be used for other CP inmates, the Consultants

reported that “occupancy of the facility by [CP inmates] in the relatively near future will not expose the occupants to

‘unreasonable’ risk [of) injury and illness.” Page 4 of Consultants’ Preoccupancy Evaluation on Environment and Sanitation and

Fire Safety at PCC, filed April 12, 1989.

25

In this ruling, the Western District also denied plaintiffs’ requests for injunction to prevent the move, which included a change in

19

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

the manner in which death sentences were carried out. That court found no violations of the Original Decree or the federal constitution in the proposed move and the change in the method of execution.

26

This SOP, as adopted effective August 7, 1989, remained in effect until the mainstreaming of the CP inmates.

Written policies for correctional facilities within the State of Missouri are contained in the MDCHR’s Institutional Services

Policy and Procedure Manual and in Standard Operating Procedures which are developed for a particular correctional facility.

The former are referred to by the designation “IS” followed by the number; and the latter are referred to by the designation

“SOP” followed by the number of the relevant policy or procedure. It is not necessary to have an SOP for every IS policy or

procedure. When an SOP is developed, its terms may not conflict with IS provisions, although an SOP may provide more than

the minimums set forth in the IS provisions.

An SOP is usually drafted by designated officials at the institution, taking into consideration the institution’s level of security,

architecture, and schedules. After the SOP is signed by the institution’s superintendent, it is forwarded to the MDCHR’s Central

Office for review and comparison to relevant MDCHR policies and related authority. If the SOP is approved, it is signed by the

official(s) in the relevant MDCHR division, dated, and returned to the institution.

While each IS or SOP has an effective date when it is officially in effect, the PCC may implement an SOP prior to final

approval, subject to changes or termination upon review by the Central Office and other officials. Furthermore, the terms of an

SOP may be implemented although it is not actually “in effect” until later approved. This occurs when an SOP is in the process

of development and a “working copy” of the SOP is available to guide implementation of a proposed policy or procedure to

determine whether or not it is feasible in light of institutional and MDCHR requirements.

Other policies or procedures may be reflected in Inter Office Communications (referred to as “IOCs”) and other written

documentation.

In general, unless court rulings or statutory changes require more frequent consideration, policies are reviewed annually to

determine whether changes are necessary and to make any such changes.

27

This amendment relieved the appointed special probation officer “of any further responsibility in this cause of action.”

28

This decree also has several pages of introductory paragraphs. The introduction includes a summary of the status of the case at the

time of the Court’s ruling; observations that certain portions of the Modified Consent Decree would depend on appropriations by

the state legislature for implementation; directives that defendants make their best efforts to request and secure such appropriations

promptly; and statements that noncompliance with the decree’s terms as the result of a failure to obtain the necessary funds would

not result in a finding that defendants were in contempt.

29

This provision is identical to the wording of the same section in the Original Consent Decree, without the changes made by the

December 15, 1986, addendum.

30

The only difference between the “Legal Mail and Materials” section in the Modified Consent Decree and in the Original Consent

Decree is a change in the reference to the regulation requiring the opening of legal mail in the inmate’s presence.

31

As in the Original Consent Decree, the Modified Consent Decree also noted other services would be provided in the privacy

rooms. Section III.3 Religious Services.

32

The Court understands this is a reference to disciplinary segregation.

33

The only differences between the Original and the Modified Consent Decree provisions regarding religious services is that the

Modified Decree’s provisions required annual reviews for the possibility of increasing the number of CP inmates who could

participate in the privacy room services, rather than requiring such a review once (when a specific indoor recreation area was

completed) as set forth in the Original Decree; and included a new provision allowing minimum custody CP inmates to attend

services in the chapel.

34

The duration of and basis for terminating telephone calls is the same in the Original and Modified Consent Decrees. The hours of

access to the telephone are different, with the Original Decree containing no express distinction between the custody levels for

access to a telephone.

35

The Modified Consent Decree did not contain provisions that had been in the Original Consent Decree for conducting physical

examinations of consenting inmates; for conducting sick call by the physician in the CPU; requiring doctor’s sick call to occur

behind a privacy screen in an office until privacy rooms on the CPU were available; for storing CP inmates’ medical and

psychological records in a locked fire-safe file on the CPU; and for defendants to make good faith efforts to obtain appropriations

from the state legislature for an additional medical assistant.

The Original Consent Decree stated that the escort of an inmate to the eye or dental clinic must be within “eight days” of receipt

of the written request for such services, rather than within “eight working days” of receipt of the written request for such

services as set forth in the Modified Consent Decree.

In other respects the terms of the medical services provisions in the Original and Modified Consent Decrees are the same.

20

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

36

While most of the provisions of the “mental health care” sections of the Original and Modified Consent Decrees are the same, there

are several differences. In the Modified Consent Decree defendants expressly retained the right to seek a state court order for the

provision of treatment to an inmate declining such care if the defendants believe such care is advisable. Section III.6(b) Mental

Health Care. This is different from the same provision in the Original Decree because it omits both the phrase “and necessary” at

the end of the sentence and a requirement that notice be given to the inmate and counsel. The omitted provisions had been added to

the Original Decree by the parties’ December, 1986, addendum.

Additionally, in the Original Decree, there was no mention of whether the death row psychologist was a voting or non-voting

member of the classification committee. The Modified Consent Decree contains an express statement that the psychologist may

not be a voting member.

37

The Modified Consent Decree states this classification system “is intended to give inmates greater privileges commensurate with

good behavior.” Section III.7(a) Classification. The Original Decree had a similar provision stating that the classification “system

was intended to give certain inmates greater privileges commensurate with good behavior.”

38

At paragraph 7(a) on page 12 of the Modified Consent Decree this is referred to as “Medical Custody CP.” Later in the Modified

Consent Decree there are no further references to “medical custody” and references to “medium custody,” see, e.g., Section III.9.b

at page 14 and Section III.11.c at page 15. Moreover, nothing of record intimates that there is any custody level known as “medical

custody” at the PCC and several materials of record regarding the levels of CP inmate custody at the PCC refer to “medium

custody.” Under the circumstances, the Court construes the “medical custody” reference at Section III.7(a) of the Modified

Consent Decree to be a reference to “medium custody.”

39

While both decrees permit close custody, no-contact custody, administrative segregation, and disciplinary segregation status for CP

inmates, the Modified Consent Decree differs from the Original Decree in having minimum and medium custody classifications

and no regular custody classifications. Additionally, a paragraph in the Original Consent Decree regarding defendants’ amendment

of the classification system in effect when the Original Decree was entered and the parties’ efforts to resolve disputes pertaining to

that amended classification system is omitted from the Modified Consent Decree. Finally, the changes made by the parties’

December, 1986, addendum in Section III.7(c) of the Original Decree are not contained in the related section of the Modified

Consent Decree.

40

The Modified Consent Decree does not include a provision that had been added to the Original Consent Decree by the parties’

December, 1986, addendum. That provision required defendants to furnish plaintiffs’ counsel with any inter-office communication

which “will affect or implements the classification system” or decree.

Additionally, the Modified Consent Decree does not include a provision, that was in the Original Consent Decree, requiring that

the institution’s classification SOP be amended to reflect the terms of the decree. See Section III.7(b) of the Original Decree.

While a similar provision was in the Original Consent Decree, the Modified Consent Decree emphasized that defendants must

seek prior approval of the Court only for those modifications of the classification system that are inconsistent with the terms and

provisions of the decree and expressly stated that Court approval is not “otherwise ... warranted.” Section III.7(c) of Modified

Consent Decree.

Unless a difference has been noted in this discussion of the classification section of the Modified Consent Decree, that section

contains provisions similar to those in the Original Consent Decree.

41

The Modified Consent Decree does not contain provisions that were in the Original Consent Decree for the assignment of eighteen

additional officers to the CPU at specified times in 1986 and the rotation of custody staff assigned to the CPU “as necessary to

enable them to receive [specified] training.” Section III.8 of the Original Consent Decree.

42

The recreation provisions in the Modified Consent Decree differ significantly from those set forth in the original Consent Decree.

The following provisions in the Original Consent Decree are not in the Modified Consent Decree:

for Regular Custody CP inmates to have eight hours of outdoor recreation and eight hours of indoor recreation per week, with an

opportunity to increase that time to twelve hours per week as of April 1, 1987, and sixteen hours per week as of January 1, 1988,

“[i]n the absence of a pattern of security-threatening incidents” (Section III.9(a) Recreation );

for Close Custody CP inmates to have four hours of outdoor recreation and four hours of indoor recreation per week, with an

opportunity to increase that time to six hours per week as of April 1, 1987, and eight hours per week as of January 1, 1988, “[i]n

the absence of a pattern of security-threatening incidents” (Section III.9(b) Recreation );

for defendants’ “review [of] the feasibility of expanding recreation time “consistent with security and the well being of the

inmates” after January 1, 1988 (Section III.9(c) Recreation );

for defendants to modify the outdoor recreation area between Housing Units 2 and 3 to provide three group recreation yards with

specified equipment for Regular Custody and Close Custody CP inmates and six 9′ x 20′ individual recreation yards, three of

which will be paved and have a basketball goal, for use by No–Contact Custody CP inmates; and for defendants to “make a

good faith effort not to disrupt the inmates’ recreation any more than is necessary for ... safety and security” while the yards are

being modified (Section III.9(d)-(e) Recreation );

for defendants to review the recreation program and determine whether the size of groups participating in indoor and outdoor

recreation may be increased, with an increase from two inmates to four inmates per group permitted no later than September 1,

1986, if there is an “absence of a pattern of” any security-threatening incidents, and greater increases possible later if, after

review, defendants determine recreation in groups larger than four CP inmates is “feasible” (Section III.9(f) Recreation );

21

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

for the installation of exhaust fans in the CPU’s indoor weight rooms that have windows, the expansion of indoor recreation facilities, subject to appropriations from the state legislature, through the conversion of an area in Housing Unit 2, and the provision of a “variety of recreational equipment” in that expanded area (Section III.10 Facility for Indoor Recreation ); and for defendants to make good faith efforts to obtain appropriations from the Missouri legislature for expansion of indoor recreation facilities (Section III.10 Facility for Indoor Recreation ).

43

The Modified Consent Decree provided for one inspection by the consultants after their development of fire safety, environmental,

and sanitation plans for the PCC, whereas the Original Consent Decree provided for the consultants’ quarterly inspections of the

MSP CPU for “at least one year or until such later date as the parties are jointly satisfied that all necessary fire safety[,

environmental, and sanitary] measures have been implemented.” Otherwise the fire safety and sanitation provisions of the Original

and Modified Consent Decrees are the same.

44

The Original Consent Decree directed defendants in part to schedule Regular Custody CP inmates for at least six contact visits of

three hours duration per year with no more than one contact visit per month, except as otherwise directed by the institution’s

superintendent; and to install a new screen in the non-contact visiting area to enhance visibility. Such provisions are not included in

the Modified Consent Decree. There is no regular custody classification or a known problem with non-contact visiting room

screening at the PCC. Other differences between the visitation sections of the Original and Modified Consent Decrees are that the

Modified Decree specifies the number of visitors permitted during the visits, and the Original Decree did not do so; and the number

of contact visits for the CP inmates in the less secure custody levels is greater in the Modified Consent Decree. For instance, the

Original Decree allowed regular custody CP inmates at most twelve contact visits per year because those visits were expressly

limited to no more than one per month. Under the Modified Consent Decree, minimum custody CP inmates are permitted “up to

four contact visits per month,” and medium custody CP inmates are permitted “up to two medium contact visits per month.”

Otherwise, the visitation sections in the two decrees are similar.

45

The Modified Consent Decree does not specify, as did the Original Consent Decree, that a television channel will provide the

education program or that programs other than a G.E.D. program (e.g., Positive Mental Attitude and religious broadcasting) will be

provided to the CP inmates.

46

The lighting provision in the Modified Consent Decree is different from the lighting provisions in the Original Consent Decree.

The latter provisions required defendants to provide CP inmates with “light bulbs in wattages of their choice up to 200 watts” and

to make a good faith attempt to obtain the desired wattage if it is not available; and required defendants to re-evaluate the number

of security fluorescent lights needed on the walks and to turn off the unnecessary lights between 11:00 p.m. and 7:00 a.m.

47

The Original Consent Decree required that, until the new schedule for feeding CP inmates is achieved, defendants were to continue

to provide in a sanitary manner the evening snack. That provision is not part of the Modified Consent Decree.

48

This is identical to the Equal Access section of the Original Consent Decree.

49

This is identical to the Inspections section of the Original Consent Decree.

50

While the Original Consent Decree contains a similar Reports section, that section required the defendants to provide the quarterly

reports for at least two years from approval of the decree, at which time the parties were to “jointly decide on the need for and

frequency of compliance reports.” Thus, the length of time defendants had to provide quarterly reports was reduced in the

Modified Consent Decree.

51

A provision in the Original Consent Decree requiring the implementation of all provisions by September 1, 1986, unless otherwise

specified in the decree, is not included in the Modified Consent Decree. Otherwise, all provisions of the Implementation section of

the Modified Consent Decree are the same as the Implementation section of the Original Consent Decree.

52

The only difference between the two decrees with respect to the Jurisdiction section is that the Original Decree stated the Western

District “shall retain jurisdiction” over the matter and the Modified Decree states the Western District “shall transfer jurisdiction ...

to the Eastern District of Missouri.” In all other respects the terms of this section in the Original and Modified Consent Decrees are

the same.

53

The Modified Consent Decree also does not contain a section on attorneys’ fees similar to Section III.28 in the Original Decree.

54

Defendants reportedly denied the inmates’ property requests based on a need to maintain “a controllable amount of property in an

individual’s cell.” Restrictions on the amount of property in an inmate’s cell are reportedly related to security in that defendants

need “to be able to search each inmate’s cell in a short amount of time in order to control contraband.” Thus, defendants contend,

the denial of the inmates’ property requests fell within the limitation that approval of the proposed list could be denied for security

reasons.

22

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

55

Therefore, plaintiffs’ objections to both defendants’ compliance with the Modified Consent Decree and the proposed vacating of

that Decree based upon the personal property issues permitted pursuant to the December, 1987, Memorandum Agreement will not

be further addressed. Such objections include objections to limitations on the personal property items allowed in the cells,

prohibitions on the purchase of supplies from vendors outside the prison, the cost of legal supplies to nonindigent CP inmates,

limitations on canteen purchases, and access to an iron.

56

In particular one of the plaintiffs’ pro se objections appears to rely on a position that the provision in the Original Consent Decree

requiring an escort to the eye doctor or dentist within eight days of receipt of a written request for such services remains in effect.

As noted earlier, however, the Modified Consent Decree expressly altered that requirement to eight working days. Accordingly, it

is the “eight working day” period rather than the “eight day” period that is significant for purposes of determining whether dental

and eye doctor clinic services are timely provided under the terms of the Modified Consent Decree.

57

Pro se plaintiffs assert that they are not provided with meaningful access to the courts in that those inmates with knowledge and

skill “in working on death penalty cases” are not permitted to aid others and there are times when there are no CP law clerks

although there were four when the CPU was first transferred to the PCC. Additionally, class members object to other limitations on

their access to the law library. The only law-related matters encompassed by the Modified Consent Decree are limitations on the

reading of a CP inmate’s “readily identifiable” legal mail, limitations on the handling of a CP inmate’s legal materials during a cell

search or shakedown, and provisions regarding access to attorneys through telephone calls and visits. These matters do not address

class members’ access to legal materials either through CP law clerks, law clerks, or personal visits to the PCC library. Therefore,

the Court will not discuss this objection to the vacating of the decree.

To the extent some of the class members reiterate in their pro se objections their desire that new counsel be appointed to

represent the plaintiff class and that request remains before the Court, that request will be denied for the reasons set forth in

other rulings denying such requests. See order, filed February 3, 1989; memorandum and order, filed September 28, 1989;

memorandum and order, filed March 15, 1990; memorandum and order, filed July 8, 1991; memorandum and order, filed

December 4, 1992.

58

In the plaintiffs’ pro se objections to the motion to vacate, there are contentions that certain legal mail was returned to the courts or

attorneys without the recipient inmate’s knowledge or approval; that incoming mail is occasionally delivered too late in the day for

reading and responding to it before lights are turned off; and that there are delays in the processing of outgoing mail. These

contentions do not pertain to provisions of the Modified Consent Decree. Therefore, the Court will not further discuss these

objections.

59

Some class members testified to the destruction or mishandling of personal property during cell searches. Nothing in the Modified

Consent Decree focuses on the handling of class members’ personal property during cell searches. The Court’s discussion will,

therefore, not address searches of personal property items.

60

There was testimony that a non-CP inmate law clerk who had assisted CP inmates in administrative segregation was subject to

repeated cell searches during a short span of time. Because the Modified Decree is inapplicable to non-CP inmates, the Court will

not further discuss this evidence.

61

The provision of the Modified Consent Decree directing CP inmates to notify prison officials in writing when they believe their

legal or personal mail has been improperly handled by prison staff does not guide conduct of the defendants. There-fore, the Court

will not further analyze this provision for purposes of the motion to vacate.

62

No issue(s) under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, are raised in this proceeding.

63

Plaintiffs further report that disciplinary segregation inmates are allowed more calls than administrative segregation inmates

because disciplinary segregation inmates are permitted one call every ten days.

64

Plaintiffs also urge that a hand-held telephone could be used for the administrative segregation inmates to allow them to make calls

from their cells.

65

Defendants also report, through an affidavit, that the use of hand-held telephones was tested and they were found not to function

well due to the construction of the housing units.

66

No personal telephone calls are available to class members in temporary administrative segregation custody (“TASC”).

67

Correctional officials actually place the call and record whether the call was completed or not.

68

There are a few documents listing privileges applicable to inmates in administrative segregation that reflect those inmates were

limited to ten minute telephone calls. See, e.g., Plaintiffs’ Exhibit No. 21. It is not clear that these lists applied to CP inmates. See,

e.g., discussion of Phase III recreation on page 2 of Exhibit 21 (noting “[i]nmates will be subject to the same Housing Unit Rules

23

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

as Capital Punishment and General Population”). Nor is it clear for how long such privileges were in effect.

69

Plaintiffs also object that: daily sick calls should not be “dropped,” particularly in light of delays in obtaining medical care; they

have been subjected to conduct violations for being out-of-bounds, when they have attempted to walk to the clinic for treatment; an

MSR may be submitted by a class member any day of the week, but the requesting inmate may not be seen until 48 to 72 or more

hours later and may have to be seen by a nurse prior to or in lieu of being seen by a doctor; medical staff will not treat a problem

that has not been set forth on an MSR; and the PCC has a policy of having the doctor (a) prescribe either the least expensive

medications or only certain medications, regardless of their benefit and (b) “discontinue certain medications for skin rash[e]s,

migraine headaches and sinus problems.” These contentions do not focus on express terms of the Modified Consent Decree and

will not be further addressed by the Court.

Notably, there is no objection to the fact that nursing staff, rather than “Medical Assistants” as set forth in the Modified Consent

Decree, provide the daily sick call, medications to inmates, and MSRs for inmates.

70

Additionally, defendants acknowledge that nurse’s sick call was not regularly conducted during the first few months after the CP

inmates arrived at the PCC. That failure was reportedly “due to a miscommunication to medical staff” regarding the Modified

Consent Decree’s requirements. In any event, defendants report they are not considering the dropping of daily sick call, which is

regularly held except during lockdowns or when the medical staff is attending a medical emergency away from the clinic.

With respect to plaintiffs’ concerns regarding the issuance of “out-of-bounds” conduct violations, defendants state that, absent a

medical emergency, those violations are issued only when an inmate attempts to visit the medical clinic without having first

submitted an MSR and been scheduled for the visit.

71

These rooms include, among other features, oxygen, needles, eye equipment, intravenous tubing and fluids, cardiac crash carts,

minor surgery trays, incubators, fibrillation monitors, and suction machines.

72

In general, at least three nurses are scheduled for the evening and night shifts and at least five nurses are scheduled for each day

shift.

73

Before December 1, 1992, MSRs were available from custody officers in the housing units or from the nursing staff and were

collected once each day. Under CMS’ operation, MSRs are available through the nursing staff and at various locations throughout

the PCC, including the cafeteria and library; and correctional officers are not involved in the inmates’ acquisition of health care.

74

Notably, as mentioned earlier, the Modified Consent Decree does not contain a provision for the amendment of the classification

policy to reflect the terms of the decree, as was expressly required by the Original Consent Decree. That omission is telling and

further supports a determination that the SOP is not an integral part of the Modified Decree.

Moreover, the SOP was not expressly included in the Western District’s May 10, 1989, ruling, which referenced the SOP in the

discussion prior to setting forth the Modified Decree. That court expressly stated in relevant part:

Treatment of inmates in [the PCC] is governed by the Standard Operating Procedure Manual. Particular provisions of this

manual, though not identical in form to those in the Consent Decree and Memorandum Agreement, describe policies and

procedures at PCC that ensure the goals of the Consent Decree will be achieved. These new policies and procedures guarantee

the inmates’ right to constitutional conditions of confinement and accom[m]odate the needs of the new prison facility which is

physically distinct from MSP.

Pages 3–4 of the May 10, 1989 Order.

75

As the subsequent discussion discloses, administrative segregation placements are not necessarily punitive in nature and, therefore,

may occur despite the absence of a conduct violation. Additionally, a temporary placement in administrative segregation is a

possible placement for CP inmates whether under the Modified Decree or not.

76

Both that Rulebook and the Inmate Rulebook effective December, 1988, state in part:

Each of you should remember that Institutional Services Policies and Procedures affecting inmate living conditions, programs,

housing and work areas are available in the inmate library. In addition, all institutional standard operating procedures are also

available in the library for your review.

77

Notably, the statute authorizing the extended time set forth in amended IS21–1.4 was effective in 1990, or approximately two years

prior to the amendment of the MDCHR’s regulation. See Mo.Rev.Stat. § 217.380(2).

78

Plaintiffs further contend that the classification system after mainstreaming deprives segregated class members of substantial

privileges provided by the Modified Decree. Except for conditions pertaining to visitation, recreation, meals and lighting, which

will be addressed in the discussion of the relevant sections of the Modified Decree, plaintiffs specifically complain that the

following are violations of the Modified Decree:

no-contact cells do not have chairs, light switches, shelves, wall hooks for clothes or Velcro strips for hanging paper items,

typewriters, shower curtains; the electricity in no-contact cells goes out at 10:00 p.m.; the no-contact housing units are subject

to “standing head counts,” which require inmates to stand by their bunks several times during the night; and CP inmates in

no-contact status have no microwave oven or ice machine;

administrative segregation cells have only “one six inch wide” shelf for property and no trash can; CP inmates in

24

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

administrative segregation are not permitted access to televisions, radios or video games; and only one administrative segregation unit has light switches in the cells; and disciplinary segregation is different from such segregation at other Missouri correctional facilities in that electrical power is not controlled within the cell and may be turned off by the staff. These matters do not address explicit terms of the Modified Decree because nothing in the Modified Decree sets forth conditions and privileges attendant to the various custody levels with respect to cell features, head counts, or accessible appliances. Therefore, the Court will not further address these objections.

79

No party contends the mainstreaming was “necessary to preserve the security and safety of the inmates o[r] staff,” so the Court will

not address the emergency implementation provision of Section III.7(c) at page 13 of the Modified Decree.

80

This level was for CP inmates who were “expected to comply and continue to comply with program expectations and guidelines,”

who “demonstrated the behaviors consistent with PCC goals and objectives and [who] can responsibly handle increased freedom

and privileges.” Section III.B(8)(a) at page 9 of SOP 21–1.5.

The privileges for this classification level were: meals in the inmate dining room; canteen; barber shop; the retention of a razor

in the cell under specified conditions; the delivery of mail first; telephones during release hours; five possible job assignments;

access to a variety of recreation facilities; access to arts and crafts; physical access to the library; attendance at education classes,

sanctioned social functions and religious services in the chapel; contact visits consisting of three visitors for four hours four

times a month on two weekdays and a weekend day plus photos with the visitors; “special food” purchase days from the vendor

once a quarter; no lights out restrictions; and sick call in the clinic. Section III.B(8)(a) at pages 9–10 of SOP 21–1.5.

81

This classification was for CP “[i]nmates [who] have successfully demonstrated behavior commensurate with PCC goals and

objectives, and can responsibly handle the freedom and privileges or increased freedom and privileges, whichever the case may be,

of Unit 3–A wing.” Section III.7(B)(b) at page 10 of SOP 21–1.5.

The privileges attendant to this classification level were: approximately twelve hours of daily access to the dayroom; meals in

the dayroom; the delivery of mail second; access to canteen; telephone access from 9:00 a.m. to 3:00 p.m. (plus legal telephone

calls available during dayroom access); two possible job assignments; recreation in the adjacent yard; access to educational

material and the quiet rooms; medium contact visits consisting of two visitors for one or two hours twice a month (once on a

weekday and once on a weekend) plus photos with the visitors; indirect access to the library; pastoral counseling and visits;

special food purchase opportunity; attendance at sanctioned social functions; and medical treatment in the wing.

82

This was used as both a short term closely supervised placement for new arrivals, Section III.B. at page 4 of SOP 21–1.5; and for

“[i]nmates whose behavior are expressions of rebellion against or at least an unwillingness to conform to the policies of PCC,”

Section III.B(8)(c) at page 11 of SOP 21–1.5.

This placement restricted inmates to their cells; permitted recreation in yards adjacent to the housing unit for one hour on

alternating days; permitted telephone calls by arrangement; allowed access to educational course materials; permitted inmates to

obtain at most two books from the library; provided for mail delivery; permitted access to canteen; allowed one no-contact visit

with one visitor for one hour once a month on a weekday; disallowed attendance at sanctioned social functions; provided no

dayroom access; and permitted pastoral counseling and visits. Section III.B(8)(c) at pages 11–12 of SOP 21–1.5.

83

This custody level was for those “CP inmates who, by the nature of their behavior or as a result of threats, real or implied, made

by/or against them, may not be safely permitted physical contact with other inmates. Such status of itself may result in a loss of

privilege and assignment to either Ad Seg or Close Custody.” Section III.B(8)(d) at page 12 of SOP 21–1.5. Privileges for this

custody level mirrored the privileges of close custody except that there was less recreation and severely restricted personal

property.

84

This custody level was a Special Management Unit for CP inmates “who fail to conform to minimal standards of orderly conduct

or who constantly misbehave[ ].” Section III.8(e) at page 12 of SOP 21–1.5. In this classification, CP inmates had telephone calls

only by arrangement; no visits; no out-of-cell exercise; no access to educational course material; indirect access to only the legal

materials at the library; pastoral counseling and visits; no canteen; meals in cell; no property; and no access to the quiet room,

sanctioned social functions or the dayroom. See, e.g., Level System Grid, provided with defendants’ Plan to Implement the Decree

at the PCC, filed March 28, 1989.

85

This classification is for those CP inmates needing no contact status. The Modified Decree specified that this status “may include

some or all of [the] privileges of the classification the inmate is assigned when placed on full or partial no contact status.” Section

III.7(a) at page 12 of the Modified Consent Decree. The Court interprets this to mean that CP inmates on protective custody were

to have the same or fewer of the privileges that those CP inmates would have absent the protective custody status. For instance, if

the inmate would have been assigned to medium custody absent the need for protective custody, then that inmate on protective

custody would be segregated from the other CP inmates and would have the same or fewer of the privileges otherwise available to

CP inmates as-signed to medium custody.

Because there was sufficient room in the CPU to move inmates having different custody levels around, no separate protective

custody section existed when the CPU existed.

86

Upon mainstreaming, CP inmates that had been in minimum, medium, and closed custody were placed in general population

25

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

unless some behavior or request of the CP inmate required a more secure custodial status. Additionally, some CP inmates that had been in the CPU’s administrative segregation were placed in general population upon mainstreaming, unless there was a recent or serious basis for maintaining the administrative segregation custody level or the inmate requested a more secure custodial status.
There is no dispute that CP inmates in general population have more privileges and better access to institutional facilities than they had during the existence of the CPU. Now general population CP inmates may move more freely, in accordance with policies and procedure applicable to all maximum security general population inmates at the PCC. They are not regularly escorted throughout the institution as they were before.

87

Under the policy in effect as of November, 1992, an inmate may be placed in administrative segregation due to the inmate’s

commission of a serious wrongdoing, witnessing of a major violation or criminal act requiring protective custody, status as an

immediate security risk, violent behavior, or urgent need for separation for the safety of himself or others. Section III.A at page 2

of IS21–1.2 and Section III.A(1)-(6) at page 2 of IS21–1.1. Additionally such a placement may be permitted when a shift

supervisor determines “that confinement is necessary to maintain the good order and security of the institution.” Section III.A at

page 2 of IS21–1.2 and Section III.A(7) at page 2 of IS21–1.1. Such a placement is subject to regular periodic review. Section

III(c)(4) at page 4 of IS21–1.2.

This is a placement providing high security and limited privileges, including in cell meals; no recreation except in the adjacent

yard (at least one hour three days a week); five three-hour no-contact personal visits per month; no-contact attorney visits;

restricted personal property; one personal telephone call per month; telephone calls with attorneys; at least weekly access to a

chaplain for a one-on-one meeting; and limited canteen and law library access. See Section III.I at pages 6–8 of IS21–1.2;

Sections III.E, III.M and III.N at pages 3 and 6 of SOP 21–1.2 and segregation privilege list, effective November 1, 1991,

provided with SOP 21–1.2.

88

Under the policy in effect as of November, 1992, an inmate may be placed in TASC for the same reasons he may be placed in

administrative segregation. Section III.A at page 2 of IS21–1.2 and Section III.A at page 2 of IS21–1.1. This is usually a three day

placement, similar to what was referred to as prehearing detention. For a period of time it was the practice at PCC to assign an

inmate to TASC for up to three three-day periods if the placement was due to the investigation of disciplinary charges, conduct

violations or criminal acts and the investigation was not completed within three days. As of November, 1992, the policy is to limit

TASC placements to three days only. Section III.E at page 4 of IS21–1.1. If an investigation is not complete or a decision as to the

appropriate segregated custody status for a TASC inmate is not completed within that time period, then the inmate may be assigned

to administrative segregation. Id.

The privileges for a class member on TASC after mainstreaming are the same as for CP inmates’ on administrative segregation

except that property may be more restricted due to the short term nature of the classification. See, e.g., TASC and Disciplinary

Property List, effective November 1, 1991, provided with SOP 21–1.2.

89

As of February, 1992, MDCHR regulations provide that a disciplinary segregation placement may be for up to ten continuous

calendar days for minor conduct violations and up to thirty continuous calendar days for a major conduct violation. Section III.B at

page 2 of IS21–1.4. Privileges during such segregation are the same as the privileges of those in administrative segregation except

that CP inmates in disciplinary segregation receive no out-of-cell recreation, severely restricted access to the canteen, and no

personal visits. Section III.C at pages 2–3 of IS21–21–1.4; see also segregation privilege list, effective November 1, 1991,

provided with SOP 21–1.2. The property permitted those on disciplinary segregation is the same as the property permitted those on

TASC. See, e.g., TASC and Disciplinary Property List, effective November 1, 1991, provided with SOP 21–1.2.

Time in TASC may be credited to related disciplinary segregation, Section III.A(3) at page 2 of IS21–1.4, but time in

administrative segregation will not be credited, Section III.C(1) at page 4 of IS21–1.2.

90

This status is for an inmate who “may not come into contact at any time with another inmate or only come into contact with certain

inmate(s).” Section II.A at page 1 of SOP 21–1.2. Non–CP inmates at the PCC that require this status are transferred to the

protective custody unit available at the other maximum security institution, the Jefferson City Correctional Center.

There also is a temporary segregated placement under close supervision for new CP inmates and a segregated placement in a

holding cell for those CP inmates having received a death warrant. Nothing before the Court raises issues concerning the

conditions of confinement or treatment of either new class members or class members having received a death warrant, so the

Court will not further address any such issue.

91

Now this consists of all or a majority of the CP inmate’s legal materials, personally owned typewriters, and unlimited telephone

calls to legal counsel.

For a period of time, CP inmates in administrative segregation, TASC and disciplinary segregation custody levels were

permitted to retain all or at least the majority of their personal property, whereas non-CP inmates in those custody levels had

restricted access to their personal property. After the first few days of hearings on the motion to vacate, officials decided to

restrict such CP inmates’ property comparable to the property permitted non-CP inmates in these classification levels, with the

exception that such CP inmates could have typewriters and greater amounts of legal materials, due to the distinct nature of CP

inmates’ criminal and habeas proceedings.

92

Plaintiffs also contended defendants have not consistently complied with Section III.7(d) of the Modified Decree which requires

defendants to distribute a copy of the Modified Decree to each class member. Although the record supports a finding that some

class members may not have received a copy, it is not clear that such a failure was purposeful or malevolent. The policy is to

26

McDonald v. Bowersox, Not Reported in F.Supp. (1995)

distribute a copy of the Modified Decree as part of the orientation of new CP inmates. As to other class members, it is not clear that any failure to obtain a copy of the decree did not result from merely an inadvertent or mistaken failure of staff members to follow through on a class member’s request. Moreover, it is not clear whether copies were available to class members when the CPU was originally transferred to the PCC and over time the copies have been mislaid or otherwise discarded. The Modified Decree does not necessarily require the distribution of more than one copy to each class member but it is a provision without significance if it permits class members to have a copy at one time and then does not require distribution of a replacement copy when necessary to provide a class member adequate notice of the terms of the Modified Decree. Based on the present record, the Court is not persuaded that any failure to comply with this requirement of the Modified Decree prohibits vacating of this section of that decree.

93

The Court assumes this is a reference to the indoor gymnasium facilities at the PCC because indoor recreation facilities are

available to a different extent in housing unit day-rooms.

94

Medium custody inmates were placed in general population upon mainstreaming. Those inmates are now receiving a much greater

opportunity for recreation in that they are not now restricted to recreation during dayroom hours only or to the adjacent recreation

yard and other housing unit recreation facilities only.

95

Plaintiffs also allege that CP inmates in administrative segregation were required to have an adult present when a child under

eighteen years old visited, yet the no-contact visits only permitted one person to communicate by telephone with the inmate. This

in essence prevented CP inmates on administrative segregation from visiting with minors. Defendants’ counsel has advised the

Court that the PCC policy has changed so as to permit visits with minors for those inmates on administrative segregation.

96

The Court will not discuss or address the evidence and issues regarding certain female attorneys’ experience with the detection

devices at the PCC entrance. Nothing in the Modified Decree focuses on the security policy and procedures that may or may not be

used by the PCC with respect to visitors. Importantly, nothing in the record indicates that these attorneys were denied complete

access to any class members; and means of communication between these attorneys and their class member clients exist regardless

of the ability of the attorneys to have a contact visit with such clients at the time the attorney arrived at the institution. While the

Court acknowledges the correctional facility’s need to address security issues, the Court does not condone improper conduct of

prison officials toward those attempting to visit inmates. The Court understands that the policy regarding visitors who do not pass

the detection devices at the PCC entrance has been clarified since the hearing in this case.

The evidence indicates one attorney is not permitted contact visits with her clients at PCC, which include class members. The

Court does not find this evidence prohibits the vacating of the decree even though it may mean that CP inmates who are not in

administrative segregation or disciplinary segregation, are not receiving contact visits with their attorney. The circumstances

regarding that attorney’s situation support MDCHR’s and PCC’s decision to treat her differently from other attorneys having

class members as counsel. Any challenges to that decision are more appropriately addressed in another forum because this

proceeding focuses on matters affecting the plaintiff class as a whole and there is no indication that this attorney is unable to

communicate with her class member clients.

97

For instance, the Staffing section’s requirement that there be training regarding the special needs of CP inmates has been

incorporated in the regular training program for PCC custodial staff. While it is not clear that such training is repeated periodically

as a refresher course, the Modified Decree does not require repetitive training. Additionally, the amounts of visitation permitted the

different classification levels of CP inmates are satisfied or exceeded.

	  

27

 
 Bannister v. Carnahan
United States Court of Appeals for the Eighth Circuit May 12, 1997, Decided
No. 95-3843EMSL, No. 95-3845EMSL

Reporter: 1997 U.S. App. LEXIS 11330 Alan J. Bannister, et al., Appellants, vs. Mel Carnahan, et al., Appellees.

Opinion

Prior History: [*1] 89-1086C(2).
Original Opinion of April 2, 1997, Reported at: 1997 U.S. App. LEXIS 6482.
Counsel: Counsel who presented argument on behalf of the appellant was Christopher P. Leritz of St. Louis, MO.

Order Denying Petition for Rehearing and Suggestion for Rehearing En Banc
The suggestion for rehearing en banc is denied. The petition for rehearing by the panel is also denied.
May 12, 1997

Counsel who presented argument on behalf of the appellee was Susan D. Boresi, AAG of St. Louis, MO.