STEPHEN L. PEVAR American Civil Liberties Union Foundation 32 Grand Street Hartford, Connecticut 06106 (860) 293-1559
TIMOTHY C. KINGSTON Graves, Miller & Kingston 408 W. 23rd Street, Suite One Cheyenne, WY 82001 (307) 638-8885
ATTORNEYS FOR PLAINTIFFS

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U.S. OiSiHiCI COURf

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf )

and on behalf of all other persons )

similarly situated,

)

Plaintiffs, )

vs.

)

JUDITH UPHOFF; VANCE EVERETT;

)

JAMES HEWITT; DAVID EBELL; and

)

JOHN DOES 1 THROUGH 6; all

)

in their individual and official )

capacities,

)

Defendants. )

Civ. No. DtrGJ-33' COMPLAINT

PRELIMINARY STATEMENT The U.S. Department of Justice issued a detailed report in June 1999 which concluded that the Wyoming State Prison (WSP) was understaffed and dangerously overcrowded and that these conditions, among other things, led to injurious assaults by

Skinner vuphoff
iiuiiiiiig
PC-WY-003-002

=*=-

inmates on other inmates. The defendants, however, refused to address and correct these deficiencies. As a result, four months later plaintiff Brad Skinner, a WSP inmate, was viciously attacked by other inmates, despite his specific pleas to corrections officers for protection. plaintiff seeks monetary damages from the defendants and corresponding declaratory and injunctive relief on his own behalf and on behalf of all other WSP inmates similarly situated.
JURISDICTION AND VENUE 1. This action seeks relief pursuant to 42 U.S.C. § 1983. Accordingly, the Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1343(3) and (4). Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b).
PARTIES 2. Plaintiff Brad Skinner is currently serving a sentence imposed for a violation of law in the State of Wyoming. Mr. Skinner has been assigned identification number 19955 and placed under the care, custody, and control of the Wyoming Department of Corrections (WDOC). Since his sentence in October 1999, he has been incarcerated at the Wyoming State Prison (WSP) in Rawlins. 3. This action is filed on behalf of Mr. Skinner all other inmates of the Wyoming State Prison as a class action pursuant

to Rule 23(b)(l) and (b)(2) F.R.Civ.P. for purposes of obtaining declaratory and injunctive relief. This action satisfies all four requirements of Rule 23 (a), in that (1) the class includes hundreds of WSP inmates; (2) there are questions of law and fact common to the class regarding the extent to which they are at risk from unprovoked assault due to Defendants' deliberate indifference; (3) the claims of Mr. Skinner are typical of the claims of the class, to wit, that Defendants have turned a blind eye to the need to protect inmates from assault by other inmates; and (4) Mr. Skinner and his counsel will fairly and adequately protect the interests of the class.
4. Defendant Judith Uphoff is a citizen and resident of Wyoming. At all times material to this action, Ms. Uphoff has been the Director of the WDOC. As such, she is the agency official ultimately responsible under state law for the operation and administration of WSP and for ensuring the safety and proper care of WSP inmates.
5. Defendant Vance Everett is a citizen of Wyoming. At all times relevant to plaintiff's claim for damages and declaratory relief, Mr. Everett was the Warden at WSP. With regard to plaintiff's claim for injunctive relief, Mr. Everett is now the Complex Administrator of the WSP. In both capacities he had, and still has, a duty and obligation under state law to

ensure, among other things, that inmates are protected against unprovoked assault by other inmates.
6. Defendant James Hewitt is a citizen of Wyoming. At all times material to this action, Mr. Hewitt has been a security officer at WSP having the rank of lieutenant (now, captain) and his duties have included that of ensuring the safety and protection of WSP inmates.
7. Defendant David Ebell is a citizen of Wyoming. At all times material to this action, Mr. Ebell has been a security officer at WSP having the rank of sergeant and his duties have included that of ensuring the safety and protection of WSP inmates.
8. The actual identities of defendants John Does One Through Six are unknown to the plaintiff at the present time. However, they are the security officers who were assigned to monitor the living unit in which Mr. Skinner resided on the day and time he was assaulted and whose duties included ensuring his safety. Plaintiff will obtain the names of these officers through pretrial discovery after suit is filed.
9. All acts and omissions of the defendants set forth below were done under color of state law and were performed during the scope of their employment. All defendants are sued in their individual and official capacities.

FACTUAL ALLEGATIONS 10. On June 19, 1999, the U.S. Department of Justice, after careful investigation by corrections experts, issued a report regarding conditions of confinement in the Wyoming State Prison. The report concluded, among other things, that WSP was understaffed and overcrowded and that, as a result, inmates were at unnecessary risk of being assaulted by other inmates. Among the report's findings, which plaintiff believes are accurate, are: (a) "Despite the prison's recent transfer of approximately 100 inmates to an out-of-state facility and efforts to identify additional housing options, WSP regularly operates between approximately 110% to 128% of safe capacity levels." (page 14) (b) "The ongoing personnel shortage compromises institutional security and the safety of inmates and staff. Due to short staffing, the prison must routinely call security personnel away from fixed posts in order to provide coverage elsewhere in the facility. . . .Lack of adequate supervision by staff greatly increases the likelihood of inmate-on-inmate violence." (page 12, emphasis added) (c) "According to a 1994 National Institute of Corrections staffing study of WSP, the prison has been plagued by high turnover rates, forcing existing staff to incur substantial overtime on a regular basis. . . .Excessive overtime accrual

compromises security because exhausted officers are less likely

to remain alert or be able to respond adequately to normal or

exigent security needs." (page 12)

(d) "WSP further compromises safety by failing to house

some inmates appropriately. Our on-site survey of inmate

classification and housing configuration revealed several

instances of dangerously inappropriate housing assignments."

(page 13)

11.

Defendants did not rectify these dangerous

deficiencies and, in the months that followed, many inmates were

assaulted by other inmates.

12. On November 4, 1999, Plaintiff Skinner was transferred

from a housing unit to B-Star, Block 4, Upper Tier, Cell 8, a

"Closed Custody" housing unit. (It should be noted that WSP

inmates do not currently reside at this prison, called the

"North" prison; they have been transferred to the recently

opened "South" prison located nearby, A decision is pending

whether to return some inmates to the North prison.)

13. Housing unit B-Star (also called B-Unit) is configured

roughly in the shape of a star. In the center of the star is a

control booth ("rotunda") where security officers are assigned.

B-Star is comprised of four Blocks, and each Block contains two

tiers, one upper and one lower. From inside the control booth,

the assigned security officers can observe—and are expected to observe—inmate movements within the eight tiers.
14. Within an hour after Mr. Skinner's arrival on Block 4 of B-Star, an inmate on the tier warned Mr. Skinner that certain other inmates on the tier strongly opposed his living there, and that he would be assaulted if he didn't leave.
15. Mr. Skinner took this threat very seriously. He knew that WSP inmates had been beaten by other inmates. Mr. Skinner immediately went down the hall and was allowed to pass through a security door in order to report the threat to two officers located in the B-Star "sergeant's office." These officers then escorted Skinner out of B-Star and brought him to another building, where he was locked into a noncontact visiting booth.
16. Defendant Sgt. David Ebell arrived at the cell a short while later and escorted Mr. Skinner to the office of Ebell's superior officer, Defendant Lt. James Hewitt. On the way, Ebell asked Skinner what the problem was, and Skinner told him.
17. Skinner was so frightened for his life that he began crying during his meeting with Hewitt, and he pleaded with Hewitt to move him to another tier. Instead, however, Hewitt berated, insulted, and yelled at Skinner and said that he "didn't give a shit" what happened to him. Hewitt took out a piece of paper and ordered Skinner to write down verbatim and then sign a statement (authored by Hewitt) to the effect that

Skinner felt safe in returning to his cell. Skinner objected, but Hewitt, in a threatening tone of voice, ordered him to write and sign the statement, which Skinner then did.
18. Skinner would not have asked for a transfer had he felt safe in his cell, and the written statement he wrote to the contrary was coerced. Indeed, as defendants Hewitt and Ebell had to have known based on their experience, Mr. Skinner was now in more danger due to the fact that the inmates who had threatened him would have been able to observe Skinner immediately leave the tier and speak with a security officer. Yet despite these circumstances--and ignoring Skinner's pleas for protection--Hewitt ordered Skinner to return to his cell.
19. Sgt. Ebell remained in the room during Skinner's conversation with Hewitt. Ebell apparently realized that Skinner was in danger. According to the report that Ebell wrote the next day (November 5, 1999), Ebell, right after Skinner left, "called Yard Observation and B-Unit and Central Control to tell them to monitor Skinner #19955, and also to pass this information on to second shift." [Emphasis added.]
20. Ebell would not have made these calls had he thought that Skinner's fears were baseless.
21. Defendants Does One Through Six were the B-Star (BUnit) officers who were instructed by Sgt. Ebell to monitor Skinner. Those officers disobeyed Ebell's command. Not more
8

than 10 minutes after Skinner returned to his cell, three inmates entered the cell, at least one of whom was wearing a stocking cap on his head and a white scarf across his face. Two of them began beating Skinner while the third stood in the doorway. Skinner believed they were going to kill him.
22. Cell doors in B-Star generally were left open during the day but were closed and locked by officers during set periods known as "Count." During Count, B-Star officers walked down each tier of the Unit counting the number of inmates in the tier. In addition to counting the inmates, these officers were required and expected to ensure that each inmate was safe and well.
23. During the attack on Skinner, an officer came on the loudspeaker and announced that it was the 4:00 p.m. Count. Hearing this, the three inmates left Skinner's cell but warned Skinner they would kill him if he alerted the officers, and Skinner believed they would.
24. Based on information and belief, the 4 p.m. Count conducted on November 4, 1999, was performed by officers ordered by Ebell to monitor Skinner.
25. Skinner thought the Count officers would see his injuries, as there were bruises and blood on his face. Skinner saw one of the Count officers look right at him, but the officer walked by without stopping.

26. Several minutes later, after Count "cleared," all the doors on the tier were reopened by an officer in the B-Star control booth. One or more inmates returned to Skinner's cell and resumed beating him. Skinner was punched and shoved to the ground and then kicked in the face by an inmate wearing boots. Skinner's wedding band was stolen from him. Skinner was in terrible pain and lost consciousness.
27. The entry into Skinner's cell by inmates not assigned to that cell (at least one of whom was wearing a disguise) should have been observed by the Doe defendants on duty in the Star's control booth, especially given the instructions Sgt. Ebell had given them moments before to monitor Skinner.
28. Skinner is not sure how long he remained unconscious after the beating. When he regained consciousness, he yelled for help. Officers eventually arrived. Photographs were taken of his injuries, and Skinner was taken to the hospital in Rawlins.
29. One of the officers who assisted in removing Skinner wrote in his report that "while looking around his cell I noticed several areas covered in blood." Skinner had severe injuries to his spine (including separations in his vertebrae), a concussion, multiple contusions, swelling on his face and body, and a broken nose. He was in enormous pain.
10

30. Skinner was examined at the hospital for a few hours and was x-rayed. He was interviewed by someone from the Carbon County Sheriff's Department, who took additional photographs. He was then taken to the prison infirmary.
31. The next day while in the infirmary, Skinner asked to use a telephone, and Skinner called his wife. Skinner told her what had happened, asked her to contact an attorney, and said that he wanted to file a lawsuit.
32. During Skinner's telephone conversation with his wife, a corrections officer stood nearby. Skinner believes that this officer overheard his conversation because not long afterwards Lt. Hewitt came to Skinner's room in the infirmary, accompanied by this same officer. Hewitt started yelling at Skinner for having asked his wife to contact an attorney. Threatening Skinner, Hewitt said that he'd better not file any lawsuits against him or the prison. Skinner believed Hewitt would retaliate against him if he pursued his legal claims.
33. Skinner remained in the infirmary nearly five weeks. On the day of his release, Hewitt came and told Skinner that he was being moved out of the infirmary. Hewitt warned Skinner that he "had better keep his mouth shut about the whole incident."
34. Skinner experienced constant pain for months after the beating. He continues to suffer from throbbing back pain in his
11

lower right back due to separations in his spine, migraine headaches 2 - 3 times a week, blurred vision, pain when he stands or walks for any length of time, and other physical and psychological pain and suffering.
35. Mr. Skinner has fully exhausted his administrative remedies in seeking compensation for the assault and protection against future harm, which remedies were unavailing. Skinner filed a formal grievance that was denied by WSP's warden on December 7, 2000; his subsequent appeal of that denial to Defendant Uphoff dated December 14, 2000 also was rejected. Ultimately, Defendant Everett dismissed the grievance based solely on the fact that Skinner had since been moved to another living unit. This response, however, did not address Mr. Skinner's request for damages nor the systemic inadequacies that left him unprotected.
36. Defendants Judith Uphoff and Vance Everett developed and pursued policies and customs that created the substantial risk of bodily harm to the plaintiff and other inmates, and which evidence a deliberate and gross failure to supervise their subordinates. Their acts and omissions included (a) a failure to hire a sufficient number of corrections officers for WSP; (b) a failure to adequately train corrections staff in matters of inmate safety from assault; (c) a failure to take steps after each inmate assault occurred in order to determine whether staff
12

misconduct led to the assault and whether remedial action was necessary to prevent future assaults; and (d) a failure to ensure that corrections staff will adequately report and document threats made to inmates regarding their safety. In short, these supervisors followed a turn-a-blind-eye approach to inmate-on-inmate assaults and refused to conduct a thorough investigation into each inmate assault and take appropriate remedial action to safeguard against their recurrence. These failures were the proximate cause of the assault upon the plaintiff.
37. As a result of Uphoff's and Everett's failure to properly control and supervise their subordinates, they condoned and acquiesced in the errors made by their subordinates that led to the assault on the plaintiff.
38. The failures described above on the part of Uphoff and Everett continue to this day, placing the plaintiff and all inmates of WSP at unnecessary and substantial risk of being assaulted by other inmates. These defendants know from the reports they receive as well as from the report issued by the DOJ that assaults are a chronic problem at WSP, and that some of these assaults cause severe injuries to inmates. Yet these supervisors, due to their deliberate indifference to plaintiff and the class of inmates he represents, refuse to take appropriate and necessary remedial action.
13

39. Although Sgt. Ebell made some effort to protect Plaintiff Skinner by calling officers and instructing them to monitor Skinner, Ebell knew of the substantial risk of injury that Skinner faced and took inadequate steps to protect him. Upon information and belief, Ebell was the sergeant in charge of B-Star during that shift. He knew from personal experience that officers at WSP--and in B-Star in particular--often failed to take necessary steps to protect inmates. Given all the circumstances known to Ebell, his efforts were unreasonable and inadequate; at a minimum he should have escorted Skinner back to the Unit, discussed with the officers on duty their need to monitor his safety, and conducted an investigation into Skinner's allegations. Moreover, based on information and belief, Ebell failed to conduct an investigation following Skinner's assault to determine why subordinates had disobeyed his instructions, thereby acquiescing in and condoning their misconduct.
40. Although cell doors in B-Unit were normally left open except during certain periods of the day, it was the duty of corrections officers in the control booth to ensure that no inmate entered a cell who was not assigned to that cell. Had defendants Does One Through Six fulfilled that duty on November 4, 1999--a duty specifically brought to their attention by Sgt. Ebell--they would have seen the hooded and disguised inmate(s)
14

enter Skinner's cell prior to the 4 p.m. Count and they would have observed one or more inmates return to Skinner's cell after the 4 p.m. Count. Moreover, had the Doe defendants properly performed the 4 p.m. Count, they would have observed Skinner's injuries. Thus, these defendants could have prevented the assault from occurring or stopped it once it had commenced. Their deliberate indifference to the safety and well being of the plaintiff was a proximate cause of the injuries he suffered.
41. Indeed, in a Memorandum addressed to "all staff and Maximum population" dated March 3, 1995, administrators of WSP stated the following: "Because of the recent episodes of violence in the cells, anyone caught in another person's cell will immediately be placed on Red Tag status." Thus, as Defendants well knew, violence was occurring due to the presence of unauthorized inmates in cells. Had Defendants enforced their own Memorandum on November 4, 1999, corrections officers would have intervened as soon as the assailants entered plaintiff's cell.
42. Due to inadequate training of staff and the failure and refusal of staff to fulfill their duties, several documents and logs relating to this incident have been lost or deliberately destroyed by Defendants and their subordinates. For example, Lt. Hewitt either failed to create or subsequently lost or destroyed the report he was required to prepare
15

following his meeting with Mr. Skinner on November 4, 1999. The written statement signed by Skinner during his meeting with Hewitt has been lost or destroyed by Defendants. Moreover, to plaintiff's knowledge, no formal investigation was conducted and no written report was issued as to whether Hewitt erred in not removing Skinner from his tier, and why he failed to write and/or retain a report regarding his meeting with Skinner. Such inadequate reporting and record keeping problems are chronic at WSP, a fact well known to these Defendants.
FIRST CLAIM FOR RELIEF 43. Based upon the facts set forth above, Plaintiff Skinner seeks compensatory damages against all defendants jointly and severally in their individual capacities in an amount as may be shown at trial. In addition, Plaintiff seeks punitive damages against defendant Hewitt in his individual capacity in the amount of $250,000.00 due to his callous and malicious conduct and his threatened retaliation. Relief is sought pursuant to 42 U.S.C § 1983 based on violations of the Eighth and Fourteenth Amendments to the U.S. Constitution.
SECOND CLAIM FOR RELIEF 43. Based upon the facts set forth above, Plaintiff seeks injunctive relief on his own behalf and on behalf of all persons similarly situated, enjoining Defendants Uphoff and Everett in
16

their official capacities (and all persons acting under their command) from failing to take all necessary and proper steps to safeguard plaintiff and other WSP inmates from unprovoked assault by other inmates. Defendants should be ordered, among other things, to train staff in how to handle and investigate threats such as those reported to staff by Skinner; to thoroughly investigate each inmate assault to determine whether it could have been prevented by staff and whether staff misconduct led to or encouraged the assault; to issue written findings after each assault; and to ensure that noncompliant or untrained staff receive the discipline they deserve or additional training they need. The Court should also direct these Defendants to ensure that incident reports, documents, and logs are properly made and retained regarding incidents of inmate assault.

PRAYER FOR RELIEF

WHEREFORE plaintiff respectfully prays that this Honorable

Court will:

1. Accept jurisdiction over this cause.

2.

Grant plaintiff pursuant to 42 U.S.C. § 1983

compensatory damages against all defendants jointly and

severally as the proof may show at trial, and punitive damages

against defendant James Hewitt in the amount of $250,000.00.

17

3. Grant plaintiff declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, declaring that the defendants violated plaintiff's rights under the Eighth and Fourteenth Amendments to the U.S. Constitution, and that Defendant Hewitt violated plaintiffs' rights also under the First and Fourteenth Amendments due to threatening him with retaliation if plaintiff pursued his right of access to the courts.
4. Issue injunctive relief on behalf of Plaintiff Skinner and on behalf of the class of inmates he represents pursuant to Rule 65 of the Federal Rules of Civil Procedure, ordering the defendants to take all necessary and proper actions to ensure that inmates at WSP will be protected in the future against unprovoked assault by other inmates, and protected against being threatened with retaliation for pursuing their right of access to the courts.
5. Grant such additional and further relief, including the award of attorney's fees and costs, as the Court may deem proper under the circumstances.
Stephen L. Pevar
Timothy C. Kingston
18

 
 n u n ii i inn i ii Skinner v. Uphoff PC-WY-003-005

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, On his own

)

behalf, and on behalf of all )

others similarly situated,

)

Plaintiff,

)

vs.

)

JUDITH UPHOFF; VANCE EVERETT; )

JAMES HEWITT; and DAVID EBELL; )

all in their individual and

)

official capacities,

)

Defendants.

)

Case No. 02-CV-33-B

FINAL DECREE ADOPTING AND INCORPORATING DEFENDANTS' SECOND PROPOSED REMEDIAL PLAN, WITH MODIFICATIONS, AND GRANTING IN PART
AND DENYING IN PART PLAINTIFF'S OBJECTIONS TO THE PLAN
The matter is before the Court on Defendants1 Second Proposed Remedial Plan ("Plan"), submitted to the Court on May 7, 2003, and fashioned pursuant to this Court's November 27, 2002 Order Granting Plaintiff's Motion for Summary Judgment ("Summary Judgment Order") . The parties worked toward submitting a joint plan and have agreed on the vast majority of issues in the Plan before the Court. However, there are a few issues on which the parties could not agree, and thus Plaintiff submitted four Objections to the Plan. The parties settled one of Plaintiff's Objections (relating to

Defendants1 proposed Order for Protection of Documents, which was
attached to the Plan as Plan Exhibit I) . Thus, only three
Objections remain before the Court. After reviewing the parties'
written submissions, hearing oral argument, and being fully advised
in the premises, the Court FINDS and ORDERS as follows:
I. The First Issue; Investigating Nine Prior Assaults.
Plaintiff requests that the Court include the following
language (or words to the same effect) in the Plan upon its
adoption, since Defendants would not agree to include it:
Defendants are hereby ordered to investigate, using the investigation procedures adopted in the Remedial Plan, the assaults that occurred at the North prison on inmates Brad Skinner, Shane Pitzer, Melvin Slayton, Brian Alvis, John Jessel, Ellis Kennedy, Matthew Escobedo, Thomas Peitsmeyer, and Everett Phillips. Following each of these nine investigations, the defendants will then take whatever remedial and disciplinary action is deemed necessary, using the criteria and considerations set forth in the Remedial Plan.
(Pis.1 Br. Re: the Remedial Plan ("Pis.1 Br."), p. 2 ) . Plaintiff
argues that requiring Defendants to investigate these assaults at
long last is compelled by the principles contained in the Court's
Summary Judgment Order. (Id.). In particular, Defendants have a
constitutional duty "to discover whether staff error or misconduct,
or some other institutional deficiency, was a cause or contributing
factor to an inmate assault . . . in order to avoid recurrence of

the problem in the future." (Id. (quoting Skinner v. Uphoff, 234
F. Supp. 2d 1208, 1214 (D. Wyo. 2002))). Plaintiff contends that
because Defendants' refusal to investigate these prior assaults
violated the Eighth Amendment, their continuing refusal to
investigate the same assaults is a continuing Eighth Amendment
violation, placing inmates at unnecessary risk of preventable
future injury. (See id.. p. 3 ) .
Defendants respond by reference to the Prison Litigation
Reform Act ("PLRA"), which states in part:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(l). According to Defendants, Plaintiff is
asking for improper and unnecessary prospective relief. (Defs.1
Resp. to Pis.1 Objections to Defs.1 Second Proposed Remedial Plan
("Defs.' Resp."), p. 9 ) . The constitutional injuries to the
inmates occurred at the time of the incidents, by Defendants'
failure to provide for their reasonable safety, and Defendants'

Second Proposed Remedial Plan provides all the measures necessary to remedy past deficiencies. (Id.). Thus, ordering investigations of four and five-year-old incidents is not the "least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(1).
Plaintiff is correct that Defendants, through their failure to investigate previous assaults and their resulting failure to protect the inmates from harm, violated the Eighth Amendment rights of the victim inmates at the Wyoming State Penitentiary ("WSP"). The Court does not, however, go so far as to agree that by not going back in time four or five years to investigate these past incidents, Defendants are in continual violation of the Eighth Amendment and this Court's Summary Judgment Order. The Court agrees with Defendants that there is little to be gained at this juncture by initiating new investigations of the incidents involving the nine inmates listed by Plaintiff. The staleness of the past assault incidents would present serious obstacles to any sort of meaningful investigation. While the Court certainly understands Plaintiff's desire to gain as much information as possible in order to prevent any subsequent assaults arising out of similar faulty conditions, the Court believes that the deficiencies

at the WSP have been brought to light, and that the Plan addresses
them by the "least intrusive means necessary to correct the
violation of the Federal right." 18 U.S.C. § 3626(a) (1) . The most
sensible and workable option, then, is to proceed from this point
forward under the provisions of the Plan.
II. The Second Issue: The "No State Interest" Paragraph.
Plaintiff objects to the first sentence in the following paragraph of the Plan:
Nothing contained in this Plan is intended to create any contractual rights or state law liberty interest in any person, party or organization. The terms of this Plan are intended to assure the enforcement of federal constitutional rights for the members of the certified class of Plaintiffs, and only for those rights addressed in the Court's November 27, 2002, summary judgment order.
(Plan, pp. 5-6, f I.B.3.). Plaintiff argues that the first
sentence in this paragraph is vague and overbroad. (Pis.' Br., p.
6 ) . Plaintiff does not wish to agree to language that appears to
be intended to limit the rights of the class that Plaintiff
represents. (Id.. pp. 6-7). Defendants respond that the purpose
of this provision is to clarify the intent and scope of the Plan,
which is to remedy the Eighth Amendment violation found by the
Court in its Summary Judgment Order. (See Defs.' Resp., p. 6 ) .

The Plan is not intended to be a contract or to create any state law liberty interest. (See id., pp. 6-7).
The Court finds that by including the language at issue, Defendants simply clarify the intent and scope of the Plan. The Court does not find that Defendants are attempting to limit any of Plaintiff's rights by this language. Rather, Defendants desire to ensure that the Plan will not be read to create new rights that were unintended. The Plan was created only to address the issues raised by this Court in its Summary Judgment Order so as to rectify the problems giving rise to the Eighth Amendment violations. The language of the "no state interest" paragraph is not offensive to Plaintiff's constitutional rights, and therefore it shall remain in the Plan. Ill. The Third Issue: The Temporary Restriction Order and Temporary
Protective Custody Policies. Plaintiff argues that the WSP's protective, segregated custody policies must be amended to protect the rights of the inmates. Such custody exists in three types: (1) Temporary Restriction Order ("TRO"), which can last up to fifteen days; (2) Temporary Protective Custody ("TPC"), which can last up to thirty days; and (3) Protective Custody ("PC"), which can last indefinitely. (Pis.' Br., pp. 7-8 (citing Policy Nos. 3.305 & 3.304, Plan Exs. G & H) ) .

The aspect of these policies to which Plaintiff objects is the provision that authorizes prison officers to use "unbridled and arbitrary discretion" to remove all property {except necessities) from inmates assigned to TRO and TPC, and to suspend contact visits with their families. (Id.. p. 8 (citing Plan Ex. G, p. 1, § II; Plan Ex. H, p. 2, % F, p. 4, 1 C)). Plaintiff contends that the use of "unbridled discretion" by the prison authorities discourages inmates from reporting threats and requesting TRO/TPC protection. (Id.) . Therefore, Plaintiff requests that the Court order Defendants to: (1) develop written criteria for determining which inmates must forfeit their property and/or visitation privileges as a condition of placement in TRO or TPC; (2) require that the officers making these decisions articulate the grounds for them; and (3) identify the staff positions entrusted with this power. (Id^, p. 10) .
Defendants respond that the TRO and protective custody (both TPC and PC) policies were revised prior to this litigation in direct response to correspondence with Plaintiff's legal counsel. (See id. . p. 10) . The policies provide standards for decision making and supervisory review, and every decision is appropriately

documented, although the policies require some discretion and
flexibility. (See icL_, pp. 11-12) .
With respect to the level of deference a court should give to
a prison in its operations, the Tenth Circuit has stated: [C]ourts must accord deference to a prison's choice of regulations employed to implement valid penological goals. Nonetheless, if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.
Shabazz v. Parsons, 127 F.3d 1246, 1249 (10th Cir. 1997) (internal quotation marks and citations omitted). While the TRO and TPC policies contain many administrative review measures, they do not specifically require that WSP staff document reasons for their decisions regarding which inmates must forfeit their property or contact visits when assigned to TRO or TPC. The closest requirement that the Court can find is that the staff member initiating the TRO is to "document the need for the action and the relationship of the degree of restriction to the precipitating event." (Plan Ex. G, p. 4 ) .
The Summary Judgment Order was based on the premise that Defendants violated the WSP inmates' Eighth Amendment right to be free from cruel and unusual punishment. According to the United

States Supreme Court, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinnev, 509 U.S. 25, 31 (1993) . Prison officials have the duties of providing humane conditions of confinement and ensuring adequate food, clothing, shelter, and medical care, as well as taking "reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984) . Because of the possibility that WSP staff might use the TRO and TPC systems as punitive measures, although contrary to the purpose of those systems, it is fit that the WSP adopt a requirement that justifications for the denial of property and/or contact visitation in the TRO and TPC context be put into writing. It is also fit that the WSP include in its TRO and TPC policies a specification of which positions have the authority to make these determinations. These are not unreasonable or unduly burdensome requirements. It can certainly be said that they accommodate "the prisoner's rights at de minimis costs to valid penological interests." Shabazz, 127 F.3d at 1249. There is nothing to be lost, and greater procedural fairness to be gained, by having WSP staff document in writing their reasons for

denying property or visitation rights while an inmate is assigned to TRO or TPC.
The Court therefore ORDERS Defendants to include in their TRO and TPC policies a requirement that officers making decisions regarding property deprivation and contact visitation restrictions articulate the basis for their decisions in writing. Furthermore, the Court ORDERS Defendants to determine, and to articulate in their written policies, which WSP positions hold this decisionmaking authority.
The Court will stop short, however, of granting Plaintiff's third request: to order Defendants to develop written criteria for determining which inmates must forfeit property in exchange for TRO or TPC protection. Flexibility and the ability to exercise sound discretion must be maintained, and the Court is loath to tie the hands of prison officials with written criteria and rules that cannot possibly account for every situational nuance. It cannot be said that such a written criteria requirement would accommodate "the prisoner's rights at de minimis costs to valid penological interests." Shabazz. 127 F.3d at 1249.
Of course, the Court is mindful that the WSP is operating under an injunction that was issued because, among other reasons,
10

the prison staff did not demonstrate a concern for "valid penological interests." This is the reason why the Court deems it fitting to grant two of Plaintiff's three requests on the TRP/TPC issue. As for mandating written criteria, however, it is clear that if WSP staff abuse the TRO and TPC systems by using them in a punitive fashion, then Defendants will have to answer to the Court anyway. The determination whether or not an inmate assigned to TRO or TPC is best left to the discretion of prison officials, which they are obliged to exercise soundly and in good faith. Should an inmate file a complaint against the WSP regarding these matters, the Court prefers to retain the ability to consider the totality of the circumstances, rather than be constrained to considering whether or not a pre-articulated criterion was violated or followed. Therefore, the Court will not require Defendants to develop written criteria for determining which inmates assigned to TRO or TPC must forfeit their property and/or contact visitation rights.
Conclusion Plaintiff's First and Second Objections to Defendants' Second Proposed Remedial Plan are DENIED. Plaintiff's Third Objection is GRANTED IN PART, to the extent that: Defendants are ORDERED to
11

include in their TRO and TPC policies a requirement that officers

making decisions regarding property deprivation and contact

visitation restrictions articulate the basis for their decisions in

writing; and Defendants are further ORDERED to determine, and to

articulate in their written policies, which staff positions hold

this decisionmaking authority. Additionally, Plan Exhibit I to

Defendants' Second Proposed Remedial Plan is STRICKEN, and the

Court SUBSTITUTES its July 14, 20 03 Order for Protection of

Documents in lieu thereof. With these modifications, Defendants'

Second Proposed Remedial Plan is ADOPTED and INCORPORATED into this

Final Decree.

.

Dated this

f

day of October, 2003.

(I
Clarence A. Brimmer United States District Court Judge

12

 
 Case 2:02-cv-00033-CAB Document 106 Filed 05/07/2003 Page 1 of 4
ORIGINAL , .'..'
... ~

Patrick J. Crank Attorney General
John W. Renneisen Depnty Attorney General Herschler Building, 1st Floor West Cheyenne, WY 82002 (307) 777-7242 (307) 777-6329-facsimile
Attorneys for Defendants Uphoff, Everett, Hewitt, Ebell, Ortega and Abbott
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf,

)

and on behalf of all other persons

)

similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

JUDITH UPHOFF; VANCE EVERETT;

)

JAMES HEWITT; DAVID EBELL; all in their)

individual and official capacities, ROBERT )

ORTEGA and SCOTT ABBOTT, in their )

official capacities,

)

)

Defendants.

)

Civil Action No. 02-CV-033B

MEMORANDUM RE: DEFENDANTS' SECOND PROPOSED REMEDIAL PLAN INTRODUCTION
Today the Defendants file their Defendants' Second Proposed Remedial Plan. This Plan

1010

~--- C-a-se-2:-02--cv--0-00-33-CAB Document 106 Filed 05/07/2003 Page 2 of 4
and the attached Plan Exhibits represent the long and dedicated negotiations of the Plaintiffs and Defendants to formulating a common plan for submission to the Court. Each side made concessions on many points. Despite clear requirements ofthe Prison Litigatiofl Reform Act, 18 U.S.C. §3626(f) for the nomination and selection ofSpecial Masters and their compensation by the federal judiciary, the Defendants have offered a plan at state expense with a Joint Expert mutually agreeable to the parties. However, there are several points on which the parties were unable to agree.
PROCEDURAL BACKGROUND
On November 27, 2002, this Court entered an Order Granting Plaintiffs Motion for Summary Judgment. The Court's Order addressed Plaintiffs Motion for Partial Summary Judgment on Class Claims. (The Court's Order ofNovember27 did not address the individual claims of the PlaintiffBrad Skinner for monetary damages, which claims remain unadjudicated and are presently set for bench trial on June 16, 2003.)
In the Court's Order ofNovember 27, the Court granted summaryjudgment for the Plaintiffs on their class claims and ordered the parties to file proposed "Remedial Plans" which will "promptly and effectively abate the Eighth Amendment violations noted in this decision and reasonably protect against a repetition ofthose violations." The Court directed that the Remedial Plans "set forth the remedies that will be implemented, the manner of implementation, and a schedule of implementation."
The Plaintiffs and Defendants filed opposing Remedial Plans. Before the time set by the Court for the parties to file their objections to the opposition's Remedial Plan, the parties requested an extension of time with a view toward negotiating, drafting and submitting a joint proposed
2

Case 2:02-cv-00033-CAB Document 106 Filed 05/07/2003 Page 3 of 4

remedial plan. The parties, through their legal counsel, have worked diligently since January 2003,

to complete that task. MUltiple drafts of the Plan and the WDOC Policies have been submitted by

Defendants and discussed with Plaintiffs. Many ofthe suggestions of Plaintiffs were incorporated

into the Defendants' Second Proposed Remedial Plan and the accompanying Exhibits.

While the parties have come a long way toward a common plan to submit jointly to the Court,

they have fallen just short. Several matters remain in dispute. Defendants now file the Defendants'

Second Proposed Remedial Plan. Defendants understand Plaintiffs will file their objections to this

Defendants' Second Proposed Remedial Plan, setting out those matters on which the parties did not

agree.

The Court previously gave the parties until May 16, 2003, to file objections to the opposing

party's proposed remedial plan.

b.::~y Dated this

of May, 2003.

sen Deputy Attorney General Herschler Building, I st Floor West Cheyenne, WY 82002 (307) 777-7242
3

Case 2:02-cv-00033-CAB Document 106 Filed 05/07/2003 Page 4 of 4
CERTIFICATE OF SERVICE
I do hereby certify that I have caused a true and correct copy ofthe above MEMORANDUM ACCOMPANYING DEFENDANTS' PROPOSED REMEDIAL PLAN to be sent by First Class,
postage prepaid, United States mail, on this ]~ day of May 2003, addressed to the following
individuals: Stephen L. Pevar ACLUF 32 Grand Street Hartford, CT 06106
Timothy C. Kingston Graves, Miller & Kingston 408 West 23rd Street Cheyenne, WY 82001
Shirley Kingston 418 South 12th Street Laramie, WY 82070

 
 234 F.Supp.2d 1208 (2002)
Brad SKINNER, on his own behalf and on behalf of all other persons similarly situated, Plaintiff, v.
Judith UPHOFF; Vance Everett; James Hewitt; David Ebell; and John Does 1 Through 6; all in their individual and official capacities, Defendants.
No. 02-CV-0033-B.
United States District Court, D. Wyoming.
November 27, 2002.
1209 *1209 Timothy C. Kingston, Graves, Miller & Kingston, cheyenne, WY, Shirley Kingston, Laramie, WY, Stephan L Pevar, Amer. Civil Liberties Union, Hartford, CT, for plaintiff.
Steven Richard Czoschke, Wyoming Atty. Gen., Cheyenne, WY, for defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BRIMMER, District Judge.
This Eighth Amendment "failure to protect" case arises out of a challenge to the existing conditions at the Wyoming State Penitentiary in Rawlins, Wyoming, where the inmates allege that prison officials have failed to reasonably protect them from assault by other inmates. Plaintiff Brad Skinner is suing on his own behalf and on 1210 behalf of current and future inmates of the prison, alleging that the policies, *1210 practices, and customs of Defendants place the inmates at the risk of unprovoked assault, bodily injury, and death at the hands of other inmates. The Court certified the case as a class action pursuant to Fed.R.Civ.P. 23(b)(2). The case is before the Court on Plaintiff's motion for summary judgment on the class claim. Summary judgment is not sought on Plaintiffs individual claim for damages. Upon reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:
Statement of Parties and Jurisdiction
Plaintiff is currently serving a sentence in the State of Wyoming. Plaintiff has been placed under the care, custody, and control of the Wyoming Department of Corrections ("WDOC"). Since his sentence in October of 1999, he has been incarcerated at the Wyoming State Penitentiary ("WSP") in Rawlins, Wyoming. Plaintiff filed this suit on behalf of himself and all other inmates of the WSP as a class action pursuant to Fed.R.Civ.P. 23(b)(1), (2) for purposes of obtaining declaratory and injunctive relief.
Defendant Judith Uphoff is a citizen and resident of Wyoming and is being sued in her individual and official capacities. Defendant Uphoff has been Director of the WDOC at all times material to this action. As Director, Ms. Uphoff is the agency official responsible under state law for the operation and administration of the WSP.
Defendant Vance Everett is a citizen of Wyoming and is being sued in his individual and official capacities. Defendant Everett has been Warden at the WSP at all times material to this action. With regard to Plaintiffs claim for injunctive relief, Mr. Everett is now the Complex Administrator at the WSP. In both capacities, he had and has a duty and obligation under state law to ensure, among other things, that inmates are protected against unprovoked assaults by other inmates.

Defendant James Hewitt is a citizen of Wyoming and is being sued in his individual and official capacities. Defendant Hewitt has been a security officer at the WSP at all times material to this action. Mr. Hewitt's duties have included ensuring the safety and protection of WSP inmates.
Defendant David Ebell is a citizen of Wyoming and is being sued in his individual and official capacities. Defendant Ebell has been a security officer at the WSP at all times material to this action. Mr. Ebell's duties have included ensuring the safety and protection of WSP inmates.
Defendants John Does 1 through 6 are security officers who were assigned to monitor the living unit in which Plaintiff resided on the day and time he was assaulted and whose duties included ensuring Plaintiff's safety. At the time Plaintiff filed his Complaint in this action, the actual identity of these Defendants was unknown; however, Plaintiff intends to obtain the names of these Defendants through pretrial discovery. The John Does' identities are more relevant for purposes of Plaintiff's individual damages claim than for declaratory and injunctive relief on the class claim.
The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3),(4), as this action seeks relief pursuant to 42 U.S.C. § 1983. Venue is proper pursuant to 28 U.S.C. § 1391(b).
Background
The parties agree that virtually all facts and testimony in this case are undisputed. Plaintiff was transferred from a housing unit to B-Star, Block 4, a "closed custody" housing unit on November 4, 1999. The B-Star was built in the 1211 shape of a star *1211 with the security rotunda in the middle. This unit was in the North prison, which since the time of the events at issue has been closed and no longer houses inmates. Subsequently, WSP inmates have been moved to the new South prison, and to other in-state and out-of-state facilities.
Plaintiff alleges that within an hour of his arrival in the B-Star unit, another inmate informed him that other inmates did not welcome his presence and that he would be assaulted if he stayed. Plaintiff took this threat seriously and reported it to the guards. Defendant Ebell escorted Plaintiff to Defendant Hewitt's office, where Plaintiff proceeded to tell Hewitt of his fear of assault. Plaintiff was so scared that he broke down and cried, and he pleaded with Hewitt to move him to another tier of the penitentiary. Plaintiff alleges that in response, Hewitt berated, insulted, and yelled at him and then forced him to sign a statement that Hewitt had written stating that Plaintiff felt safe returning to his cell. However, the signed statement has disappeared from the WSP's records. As a result, Plaintiff was even more afraid to return to his cell because the inmates who threatened him also observed him inform security of their threats.
Ebell was present in the room during Plaintiff's conversation with Hewitt. In a report that Ebell wrote the next day, he said that he called Yard observation, B-Unit, and Central Control to tell them to monitor Plaintiff and also to pass this info on to the second shift. Defendants named as Does 1 through 6 were the officers instructed to monitor Plaintiff.
Plaintiff was returned to his cell in B-Star, where three inmates subsequently entered his cell and beat him. One of the inmates was allegedly wearing a stocking cap and a white scarf obscuring his face.
Cell doors are generally left open during the day, but are closed periodically during "Count" where officers walk through the unit and check on each inmate. One of these Counts occurred during Plaintiffs beating. The three assailants left Plaintiff's cell and told him to keep quiet. Plaintiff did keep quiet, and even though there was blood all over his face, and an officer performing the checks during Count allegedly saw this, nothing was done. After Count, the three assailants returned to Plaintiff's cell and continued to beat and kick him.
Plaintiff passed out from pain during the beating. When he regained consciousness, he yelled for help. Guards arrived, took photographs of his injuries, and sent him to the hospital. Plaintiff suffered separations in his vertebrae, a concussion, contusions, swelling, and a broken nose. Plaintiff continues to suffer from back pain, migraine headaches, blurred vision, and other physical and psychological pain and suffering resulting from the assault.

Plaintiff spent five weeks in the prison infirmary. During this time, he alleges that Hewitt yelled at him after hearing that he may file a lawsuit, and Plaintiff feared retaliation. Plaintiff asserts that he has fully exhausted his administrative remedies to no avail, and that conditions at the prison remain the same, as do the systematic inadequacies that left him unprotected in the first place. These same systematic inadequacies also threaten other inmates.
Plaintiff claims that Uphoff and Everett have developed and pursued policies and customs that created the substantial risk of bodily harm to inmates at the WSP and that evidence a deliberate and gross failure to supervise their subordinates. These acts and omissions allegedly include a failure to: (1) hire sufficient number of corrections officers at the WSP; (2) train WSP staff in matters of inmate health and safety; (3) take steps after 1212 each inmate *1212 assault occurred to determine whether staff misconduct led to the assault and whether remedial action was necessary to prevent future assaults; and (4) ensure that WSP staff adequately report and document threats made to inmates regarding their safety. Plaintiff alleges that these failures remain unremedied.
Plaintiff further points out that the Department of Justice ("DOJ") conducted an investigation of the WSP which found it seriously lacking in certain respects and that this is proof that Defendants knew of the dangers and have subsequently disregarded them anyway. This report was issued in June 1999 and concluded that the WSP was understaffed and dangerously overcrowded and that these conditions, among other things, led to injurious assaults by inmates on other inmates.
Plaintiff has filed two claims pursuant to 42 U.S.C. § 1983. The first claim is on his own behalf, seeking compensatory damages against all Defendants and punitive damages against Hewitt individually for the injuries sustained on November 4, 1999. The second claim seeks injunctive and declaratory relief on behalf of himself and all present and future inmates of the WSP. The Plaintiff class seeks equitable relief in the form of an order requiring Defendants to: (1) train staff in how to handle and investigate threats such as those to Plaintiff; (2) thoroughly investigate each inmate assault to determine whether it could have been prevented by staff and whether staff misconduct led to or encouraged the assault; (3) issue written findings after each assault; and (4) ensure that noncomplaint or untrained staff receive discipline or training. Plaintiff also requests that the Court direct Defendants to ensure that incident reports, documents, and logs are properly made and retained regarding incidents of inmate assault.
Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court views the evidence in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996) .
The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to establish the existence of an essential element of the claims on which it bears the burden of proof at trial. Id. "While the movant bears the burden of showing the absence of a genuine issue of material fact, the movant need not negate the nonmovant's claim." Jenkins, 81 F.3d at 990.
To satisfy this burden, the nonmoving party must go beyond the pleadings and designate specific facts to make a showing that there is a genuine issue for trial. Ford v. West, 222 F.3d 767, 774 (10th Cir.2000). In order to successfully resist summary judgment, there must be sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, a "mere ... scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is `genuine'; an issue of material fact is genuine only if the nonmovant presents facts such that 1213 a reasonable jury *1213 could find in favor of the nonmovant." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997).

Analysis
I. The Eighth Amendment Standard
Plaintiff brings this action under the Eighth Amendment, which is applicable to the states through the Fourteenth Amendment. According to the United States Supreme Court, "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Prison officials have the duties of providing humane conditions of confinement and ensuring adequate food, clothing, shelter, and medical care, as well as taking "reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The Supreme Court has made clear the importance of these duties:
[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.... Having incarcerated persons [with] demonstrated proclivit[ies] for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course. Prison conditions may be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective any more than it squares with evolving standards of decency. Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.
Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citations omitted).
The Eighth Amendment test for constitutional liability of prison officials contains both an objective part and a subjective part. See id. at 834, 114 S.Ct. 1970.
A. The Objective Component: Substantial Risk
The objective component of the Eighth Amendment test requires Plaintiff to show that he is "incarcerated under conditions posing a substantial risk of serious harm." Id. This includes "official conduct that is `sure or very likely to cause' serious injury at the hands of other inmates." Benefield v. McDowall, 241 F.3d 1267, 1272 (10th Cir.2001), quoting Helling, 509 U.S. at 33, 113 S.Ct. 2475.
B. The Subjective Component: Deliberate Indifference
The subjective component of the Eighth Amendment test requires Plaintiff to show that Defendants had the culpable state of mind known as "deliberate indifference." Farmer, 511 U.S. at 834, 114 S.Ct. 1970. This standard is a middle ground that lies "somewhere between the poles of negligence at one end and purpose or knowledge at the other." Id. at 836, 114 S.Ct. 1970. Deliberate indifference exists when an official "knows of and disregards an excessive risk to inmate health or safety." Id. at 837, 114 S.Ct. 1970. This subjective standard of disregard of a known risk is equivalent to criminal recklessness. See id. at 836-37, 114 S.Ct. 1970.
Knowledge by a prison official may be demonstrated by circumstantial evidence, and "a factfinder may conclude 1214 that a prison official knew of a substantial risk from the very fact that it was obvious." *1214 Id. at 842, 114 S.Ct.
1970. Furthermore, an inmate "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. (emphasis added). An official "would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Id. at 842 n. 8, 114 S.Ct. 1970.

II. Supervisory Liability
To be held liable under § 1983, a supervisor "must have participated or acquiesced in the constitutional deprivations of which complaint is made." Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (internal quotation marks and citation omitted). An "affirmative link" must exist "between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Id. at 1527 (internal quotation marks and citations omitted). This link is satisfied if "a supervisor has established or utilized an unconstitutional policy or custom." Id. at 1528.
III. Plaintiff's Motion for Summary Judgment
Plaintiff alleges three failures on the part of Defendants that violate the Eighth Amendment: (1) failure to adequately supervise and train subordinates in how to investigate and abate dangerous conditions; (2) failure to develop an effective internal review process for the reporting of policy violations; and (3) failure to discipline malfeasant employees, thereby substantially jeopardizing inmate safety. The Court will address each allegation separately.
A. Failure to Adequately Supervise and Train Subordinates in How to Investigate and Abate Dangerous Conditions
Defendants Uphoff and Everett have admitted knowledge that an important supervisory duty is to discover whether staff error or misconduct, or some other institutional deficiency, was a cause or contributing factor to an inmate assault. This duty exists in order to avoid recurrence of the problem in the future. Defendants further admitted understanding the necessity of an investigation to uncover the existence of staff error or wrongdoing. Nevertheless, Defendants have not conducted the "Serious Incident Review" ("SIR") investigations required by Uphoff's very own policy enactment, Administrative Regulation (AR) 7.017. Since this regulation's enactment six years ago, there have been between one hundred and three hundred inmate assaults at the WSP.[1] In this time period, there have been only three investigations, all revealing serious institutional deficiencies and staff error. Uphoff testifies that she and her staff have repeatedly violated AR 7.017 by failing to conduct investigations in the overwhelming majority of serious incidents. She even admits that the practice of ignoring the regulation has overruled the policy.
Everett testifies that as Warden of the WSP, the bulk of the responsibility for not requiring the staff to comply with AR 7.017 fell on him. Nevertheless, he also makes sure to point out that Uphoff was obviously aware of his 1215 failure to submit the *1215 reports from the mandatory investigations, and she would have provided him additional training had she wanted him to comply with the regulation.
Plaintiff describes too many incidents for the Court to cite here involving inmate assaults that were not investigated by the staff but clearly should have been under prison policy. Uphoff and Everett agree that at least some of the later incidents of inmate violence could have been prevented had the administration been on notice of the staff error that caused or contributed to previous violence. Nevertheless, Uphoff and Everett consistently ignored their responsibility to supervise and train their staff to investigate serious incidents. Consequently, Uphoff and Everett knowingly imposed upon WSP inmates the unnecessary risk and reality of avoidable future assaults. Regardless of what claims Defendants make now regarding their contrition and resolve to improve in the future, they have established a clear pattern of deliberate indifference.
Defendants emphasize the changes in policy at the WSP since the DOJ's investigation in 1998, as well as Uphoff's seeking additional staff through budget requests to the Wyoming legislature. However, the Court is not impressed by such measures unless they are accompanied by genuine good-faith efforts to ensure actual compliance with the policies. New and improved policies are meaningless if they are not followed. Up to this

point, there is simply no evidence that such good-faith supervision, training, and enforcement efforts are underway.
The Tenth Circuit has stated that "when a superior's failure to train amounts to deliberate indifference to the rights of persons with whom his subordinates come into contact, the inadequacy of training may serve as the basis for § 1983 liability." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001) (internal quotation marks and citation omitted); see also Meade, 841 F.2d at 1528 (holding that a county sheriff can be held personally liable "for improperly hiring, training, supervising and disciplining his deputies").
B. Failure to Develop an Effective Internal Review Process for the Reporting of Policy Violations
Plaintiff alleges that Defendants have established a "code of silence" regarding staff wrongdoing in connection with inmate-on-inmate assaults. They have not created any procedural mechanism whereby officers could or should report or document such wrongdoing. Additionally, there is scarce documentation of such wrongdoing, despite evidence of its frequent occurrence.
Plaintiff points out that of the hundreds of pages of officer incident reports produced by Defendants, none mention the existence of staff error. Uphoff admits that officers did not investigate staff misconduct, nor were they expected to do so. Moreover, there is not even a place on the incident reports, or anywhere else, where information on staff misconduct is to be documented. In fact, staff error is only documented if Uphoff or Everett commission an entirely separate investigation, which they have done only three times in six years. Finally, Uphoff and Everett testify in their depositions that such failure to document policy violations could be viewed as a coverup.
The Court agrees with Plaintiff that this "code of silence" adopted by the administration of WSP in Rawlins is unconstitutional. It prevents supervisors from discovering and abating dangerous prison conditions. As long as it exists, any procedural "improvements" supposedly designed to increase the flow and accuracy of information 1216 regarding inmate assaults will *1216 be nothing more than token advancements. By adopting a practice of glossing over policy violations, the administration has repeatedly failed to act despite its knowledge of the substantial risk of serious harm to inmates. As such, the "code of silence" amounts to deliberate indifference within the definition provided by the Supreme Court in Farmer.
C. Failure to Discipline Malfeasant Employees, Thereby Substantially Jeopardizing Inmate Safety
Uphoff and Everett admit in their depositions that no officer has been disciplined for violating any WSP policy involving inmate assaults. For example, the one SIR report that was filed during the six-year period identified four officers who had violated the half-hourly walk-through policy in connection with the murder of an inmate by other inmates. However, none of the officers was disciplined. Everett admitted that all four officers, as well as their two supervisors (Hewitt and Ebell), should have been disciplined. Another example involves the violation of the WSP's policy in connection with the assault on Plaintiff himself. Once again, Hewitt and Ebell were involved, and once again, nobody was disciplined. Defendants' statement that "when offending inmates were identified in an assault scenario, disciplinary action was imposed through the WSP disciplinary process" (Defs. Everett and Uphoff's Resp. to Pl.'s Mot. for Summ. J., at p. 11) obviously does not refer to disciplinary action against prison staff for their policy violations.
Failure to discipline subordinates whose behavior violates the constitutional rights of inmates can amount to deliberate indifference if the supervisors knew of the violations. According to the Supreme Court in Farmer, "it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." 511 U.S. at 842. Uphoff and Everett have both admitted their knowledge of a substantial risk of serious harm to inmates, as well as their failure to discipline subordinates or take any other corrective action. In light of the undisputed facts, their failure to discipline amounts to deliberate indifference.

The Court can only conclude that Defendant prison officials have failed to protect prisoners, and particularly Plaintiff, from violence at the hands of other prisoners, and that such officials have demonstrated deliberate indifference to serious and excessive risks to the health and safety of the inmates of the WSP, all of which is contrary to the protection afforded them under the Eighth Amendment to our Constitution.
IV. Defendants' Mootness Argument
Defendants argue that Uphoff and Everett's successor have instituted new policies and that Plaintiff cannot show a likelihood of a continuing violation, which is necessary for declaratory and injunctive relief. Plaintiff counters that often after an action is brought for declaratory or injunctive relief, the defendants will claim repentance and show evidence of reform in order to avoid a judgment against them. In fact, this happens so often that an entire body of law has been developed to address the problem.
According to the Supreme Court, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). The Tenth Circuit, in the same vein, has stated that "[t]he 1217 court must exercise supervisory power over the matter until it can say with assurance that the unconstitutional *1217 practices have been discontinued and that there is no reasonable expectation that unconstitutional practices will recur." Battle v. Anderson, 708 F.2d 1523, 1538 (10th Cir.1983). The burden is on the defendant to demonstrate that "there is no reasonable expectation that the wrong will be repeated," and "[t]he burden is a heavy one." W.T. Grant, 345 U.S. at 633, 73 S.Ct. 894 (internal quotation marks omitted). Defendants in this case clearly have not met this heavy burden.
V. Relief
The Court concludes that there is no dispute as to any genuine issue of material fact that Defendants have violated the rights guaranteed Plaintiff under the Eighth Amendment. Accordingly, Plaintiff is entitled to judgment as a matter of law and declaratory and injunctive relief that will effectively remedy each of the three violations discussed above. See generally Hutto v. Finney, 437 U.S. 678, 687 n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (noting in a prisoner's rights case that federal courts have the power and duty "to bring an ongoing violation [of the Eighth Amendment] to an immediate halt" until progress in compliance can be evaluated). In fashioning an appropriate remedy, the Court is guided by the following two principles.
First, the Prison Litigation Reform Act provides:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A).
Second, the Supreme Court has emphasized that "strong considerations of comity ... require giving the States the first opportunity to correct the errors made in the internal administration of their prisons." Lewis v. Casey, 518 U.S. 343, 362, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal quotation marks and citation omitted). The preferred course of action in this instance, then, is for the State to submit a proposed remedial plan. See id.
Accordingly, Plaintiff and Defendants each are ordered to file with the Court and submit to the opposing party within twenty-one days of the date of this Order a proposed effective and appropriate Remedial Plan that, when implemented, will promptly and effectively abate the Eighth Amendment violations noted in this decision and reasonably protect against a repetition of those violations. Such proposed Remedial Plan must set forth the

remedies that will be implemented, the manner of implementation, and a schedule of implementation. The opposing party shall then each have fourteen days in which to comment upon the proposed Plan.
In the event a party objects to any portion of the proposed Remedial Plan, the objecting party may submit in writing the opinion of an expert in the field of prison administration in support of their objection. The Court will then determine whether a hearing is necessary to resolve any dispute regarding the content of the proposed Remedial Plan or its implementation.
1218 In an effort to avoid unnecessary litigation regarding the content or implementation *1218 of the Remedial Plan, the Court recommends that the parties consult with each other, so that if possible, a joint proposed Remedial Plan may be submitted. The Court also recommends that the parties consider the suggestions made by Director Uphoff and by Warden Everett in their depositions with respect to remedying the inadequacies documented in this lawsuit, including the recommendation made by Director Uphoff that internal investigations be conducted by outside individuals.
Uphoff and Everett referred in their depositions to a "culture" at the prison that may make it difficult for senior administrators to properly supervise and discipline staff. As a result, in order for the parties' proposed Remedial Plans to accomplish their respective goals, then, a remedy must be developed to counter this "culture." Of course, the remedy ordered by this Court "shall extend no further than necessary to correct the violation of the Federal right," 18 U.S.C. § 3626, but if it is necessary to enact systemic and prophylactic measures in order to correct the violations found to exist in this instance, the Court may do so. See Hutto, 437 U.S. at 687 n. 9, 98 S.Ct. 2565.
Conclusion
For all the aforementioned reasons, summary judgment on Plaintiff's Eighth Amendment claim is GRANTED, and declaratory and injunctive relief shall be ORDERED after the terms of the Remedial Plan have been determined by the Court.
[1] Although Uphoff does not keep track of this information despite her acknowledgment that she should, she agreed that as many as three hundred assaults have occurred since the enactment of AR 7.017.
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 324 F.Supp.2d 1278 (2004)
Brad SKINNER, on his own behalf and on behalf of all other persons similarly situated, Plaintiffs, v.
Judith UPHOFF; Vance Everett; James Hewitt; David Ebell; and John Does 1 Through 6; all in their individual and official capacities, Defendants.
No. 02-CV-033-B.
United States District Court, D. Wyoming.
June 30, 2004.
127890 *1279 *1280 Steven L. Pevar, American Civil Liberties Union Foundation, Hartford, CT, Shirley Kingston, Graves, Miller & Kingston, Cheyenne, WY, for Plaintiffs.
Michael O'Donnell, Chief Deputy Attorney General, Craig Kirkwood, Senior Assistant Attorney General, David Delicath, Assistant Attorney General, Wyoming Attorney General's Office, Cheyenne, WY, for Defendants.
ORDER ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES
BRIMMER, District Judge.
The above-entitled matter having come before the Court on Plaintiffs' Motion for Attorney's Fees and Expenses and the Court, having reviewed the materials on file, having heard oral arguments and being fully advised in the premises, hereby FINDS and ORDERS as follows:
Background
Plaintiff Skinner filed suit against Defendants on both individual and class claims. Individually Plaintiff Skinner sought compensatory and punitive damages, pursuant to 42 U.S.C. § 1983 for violations of his eighth and fourteenth amendment rights. Plaintiff also sought on his own behalf, and on behalf of all others similarly situated, injunctive relief preventing Defendants from failing to take all necessary and proper steps to safeguard Plaintiff and other Wyoming State Penitentiary ("WSP") inmates from unprovoked assaults by other inmates.
On November 27, 2002, this Court granted injunctive and declaratory relief on Plaintiffs' class action claim. This Court found that Defendants had failed to adequately train and supervise its employees, failed to develop an effective internal review process for the reporting of policy violations and failed to properly discipline employees, leading to risks for inmate safety. The Court ordered both parties to submit remedial plans to the Court. In May 2003, the parties reached a settlement on Plaintiff Skinner's individual claims. Plaintiffs' counsel filed their motion for attorney's fees in October 2003. The State of Wyoming objects to approximately $200,000 in fees claimed by Plaintiffs' attorneys in their fee request.
Legal Analysis
Title 42 U.S.C. § 1988 provides attorney's fees in certain actions, including 42 U.S.C. § 1983 actions. Section 1988 provides that "In any action or proceeding to enforce a provision of sections [42 USCS §§ 1981-1983, 1985, 1986], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable 1281 attorney's fee as part of the costs...." 42 U.S.C. § 1988. "A typical formulation is *1281 that `plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citations omitted). "The purpose of § 1988 is to ensure effective access to

the judicial process for persons with civil rights grievances. Accordingly, a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. at 429, 103 S.Ct. 1933 (quotation marks and citations omitted).
In this case, Plaintiffs' attorneys' fee request is governed by the Prison Litigation Reform Act ("PLRA"), therefore Plaintiffs must show the fees were directly and reasonably incurred in proving a violation of rights and that the fees were proportional to the relief granted. 42 U.S.C. § 1997e(d)(1).[1]
The United States Supreme Court has stated "that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley, 461 U.S. at 433, 103 S.Ct. 1933. However, a "request for attorney's fees should not result in a second major litigation." Id.
In determining the proper fees to award "[t]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir.1998).
Analysis
This Court will begin by noting that Plaintiffs received excellent results in this case. The Plaintiffs were onehundred percent prevailing parties in this action. Plaintiffs prevailed on the class action lawsuit, which led to injunctive relief and broad changes in the policies of the WSP. Additionally, Plaintiff Skinner prevailed on his individual claims for damages. All of these results were accomplished through summary judgment and settlement, avoiding the need for trial.
Plaintiffs have requested attorneys' fees totaling $434,365.99. Plaintiffs also seek attorneys' fees for time spent defending the fee request and a multiplier of the fee award.
Defendants make numerous objections to Plaintiffs' Motion for Attorneys' Fees.
1. Hourly Rates.
Defendants asserts that pursuant to the PLRA, Plaintiffs' Attorneys' Fees are limited to 150% of the hourly rate 1282 established under 18 U.S.C. § 3006A(a), for payment of Court appointed counsel.[2]*1282 Defendants argue that
the proper hourly rate is the rate paid to court-appointed counsel in the particular area, rather than the rate established by the Judicial Conference. The current rate paid to court-appointed counsel in the Tenth Circuit is $90 per hour, the rate established by the Judicial Conference is $113 per hour. Defendants argue that applying the local rate, the maximum PLRA rate would be $135 per hour compared to $169.50 per hour if the rate established by the Judicial Conference is applied.
The United States Supreme Court has yet to rule on the issue of whether to apply the maximum rate provided by the Judicial Conference or the actual rate received by attorneys in that district for purposes of the PLRA.
The Ninth Circuit in Webb v. Ada County, 285 F.3d 829 (9th Cir.2002), ruled that Section 1997e(d)(3) "makes no distinction between the amount authorized by the Judicial Conference and the amount actually appropriated by Congress to compensate court-appointed counsel in criminal proceedings." Id. at 839. This ruling follows the findings of the Federal District Court of Nevada in the case of Ilick, et al. v. Miller, 68 F.Supp.2d 1169 (D.Nev.1999). The district court in Ilick stated:
[T]he PLRA sets the payment rate as 150% of the rate "established" by the CJA in 18 U.S.C. § 3006A. It does not limit payment of fees to 150% of the CJA payments actually "paid" or "awarded." The critical word is "established."
Id. at 1174 (citations omitted).

However, it appears that the majority of courts have adopted the policy of using the established rate for that jurisdiction. The Third Circuit in Hernandez v. Kalinowski, 146 F.3d 196 (3rd Cir.1998), applied the established rate for the Eastern District of Pennsylvania. Several other district courts have also used the rate implemented in their district. See Morrison v. Davis, 195 F.Supp.2d 1019 (S.D.Ohio 2001); Searles v. Van Bebber, 64 F.Supp.2d 1033, 1037 (D.Kan.1999) (using the rate established by the Judicial Conference for the Court of Appeals for the Tenth Circuit); Clark v. C.O. Phillips, June 27, 2004, 335 (N.D.N.Y.1997).
This Court will follow the majority of the courts in applying the implemented rate of the district. Using the rates implemented in each district appropriately allows for regional difference in rates normally charged by attorneys. The Tenth Circuit pays $90 per hour for court-appointed attorneys. The maximum hourly rate under the PLRA is therefore $135 per hour.
Defendants also assert that Plaintiffs' fee request fails to take into account that the maximum PLRA rate has increased twice during the course of this case. Plaintiffs assert that attorney's fees should be calculated based on current rates, rather than historic rates. The United States Supreme Court in Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), recognized that "compensation received several years after the services were rendered 0907 as it frequently is in complex civil rights litigation 0907 is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings." Id. at 283, 109 S.Ct. 2463. The Supreme Court went on to state: "an appropriate adjustment for 1283 delay in payment 0907 whether by the application of current rather than *1283 historic hourly rates or otherwise 0907 is within the contemplation of the statute." Id.
The Tenth Circuit has also reached the same conclusion. In Ramos, the Tenth Circuit stated that the "hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983). The language of the PLRA does not indicate any intention of changing this long-standing policy. Plaintiffs are entitled to the rates currently in effect.
Defendants also contend that if the maximum rate is $135, then Tim Kingston's hourly rate should be $118.80 per hour and Shirley Kingston's hourly rate should be $79.65 per hour. Defendants do not argue that Mr. Kingston and Ms. Kingston's rates are too high based on their experience, but rather ask this Court to decrease their rates because the rate in this district has been used rather than the higher national rate. The Court finds that Mr. Kingston is entitled to charge the maximum PLRA rate of $135.00 for his time and that Ms. Kingston is entitled to charge $100.00 per hour for her time.
2. Hours Not Related to the Plaintiffs' Claims.
Defendants claim that Plaintiffs have billed a considerable amount of time after the summary judgment hearing. This time was associated with discovery requests concerning retaliation against Plaintiff Skinner, retaliation against Inmate Blumhagen, and Plaintiffs' unsuccessful attempt to require Defendants to investigate earlier inmate-on-inmate assaults. Defendants argue these interrogatories were improper and on a moot subject and that this Court should decline to award Plaintiffs' attorneys fees for their discovery requests. Defendants also claim that Plaintiffs seek time they spent cleaning up their inadvertent disclosure of privileged attorney-client communication.
Plaintiffs respond that this Court found in its October 29, 2003, Order on Plaintiff's Contempt Motions and Other Motions, that investigation into recent inmate assaults was relevant to the remedial plan and deemed information on these assaults and the investigations of them to be highly relevant.
After reviewing the materials in the file, the Court agrees with its October 29, 2003, Order, that this information was highly relevant to the remedial plan. In the Court's November 27, 2002, Order, the Court required both parties to create a remedial plan. Investigation into the issues of retaliation against Plaintiff Skinner, retaliation against Inmate Blumhagen, and investigations of earlier inmate-on-inmate assaults were necessary for the Plaintiffs' remedial plan. Therefore, this Court does not believe that any of this time should be subtracted.

On the issue of time spent clearing up the inadvertent disclosure of attorney-client privileged information. This Court agrees with the Plaintiffs that the time spent on this issue was due to Defendants' failure to return this information to Plaintiffs. Ultimately Plaintiffs prevailed on this issue and Defendants were required to return the letter and to refrain from communicating its contents to other persons. The Court will not deduct this time from Plaintiffs' fee request.

The Supreme Court has stated that:

1284

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation .... In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention *1284 raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Hensley, 461 U.S. at 435, 103 S.Ct. 1933 (citations omitted). There may have been certain areas in which Plaintiffs did not ultimately prevail. However, Plaintiffs obtained excellent results in this case and should be awarded for the time spent pursuing these claims.

The Court will not deduct any time from Plaintiffs' fee request for not being related to claims on which the Plaintiffs prevailed.

3. Excessive Hours and Block Billing

Defendants argue that Plaintiffs billed excessive hours and used block billing and therefore, Plaintiffs' attorneys' fees should be reduced. Plaintiffs assert they have significantly reduced their time, cutting almost 200 hours from the fee request. Mr. Pevar has stated that the Skinner case was his primary focus for almost three years. Plaintiffs point to the number of legal issues involved, the number of witnesses deposed, the summary judgment brief, the complete success of Plaintiffs' efforts, and the time spent developing the remedial plan.
Defendants also argue that Plaintiffs billed more than 600 hours after Plaintiff Skinner rejected Defendants' offer of judgment on his individual claims. Defendants claim the parties later settled on terms similar to those initially proposed by Defendants. Plaintiffs respond that most of the complained of hours were spent working on the remedial plan. Plaintiffs also state that the settlement finally agreed to by the parties was forty percent higher than the Offer of Judgment and Plaintiff Skinner also received the additional benefit of an admission by all Defendants that they had violated his Eighth Amendment rights.
The Court would like to note that in this case there was a blue shield that fell over all of these activities, which was very hard to pierce and in this Court's view required a great deal of time and effort on the part of Plaintiffs. Plaintiffs had to work extraordinarily hard for every bit of information in this case.
The Court does not believe that Plaintiffs' hours were unreasonable or that Plaintiffs' block billing presents any difficulty in this case, as Plaintiffs prevailed on every claim and are entitled to recover for all the time they are seeking.
4. Unnecessary Travel Expenses.

Defendants dispute $19,444.71 in travel expenses for Mr. Pevar and Paul Schor, a legal intern with the ACLU. Defendants argue that they should not be responsible because Plaintiffs chose legal assistance from out of the area rather than from in the area. Defendants claim that there are several qualified attorneys in this area that could have taken the case. Plaintiffs reply that not a single attorney listed in this area has filed a class action suit against the Wyoming State Penitentiary.
The Court agrees with Plaintiffs that currently there are no other attorneys in this area that have taken on a case of this magnitude against the Wyoming State Penitentiary. Additionally, this case required significant financial

resources. Given that there were no attorneys in this area that could have handled this case, it is appropriate to award travel expenses for Steven Pevar.
While the Court realizes that the services of Mr. Schor were helpful to Plaintiffs in depositions and for document 1285 handling, *1285 the Court does not feel that it is appropriate for Defendants to have to pay these travel expenses.
Therefore, the Court will allow travel expenses for Mr. Pevar, but will disallow travel expenses for Mr. Schor. The list of expenses provided by Plaintiffs does not separately account for the expenses of Paul Schor, so the Court will subtract half the airfare, lodging and meal expenses for the trips on which Mr. Schor accompanied Mr. Pevar.
5. Duplicative Attorney Time.
Defendants claim that Plaintiffs' fee request was rife with duplication of services. Defendants ask this Court to disallow all of Shirley Kingston's and Tim Kingston's hours for various activities at which Steven Pevar was also present. Plaintiffs point out that Tim Kingston is not even billing for time that he spent at depositions and that the combined hours of Tim Kingston and Shirley Kingston were less than 13% of the hours billed by Mr. Pevar. Plaintiffs assert that they were very careful to avoid any unnecessary duplication.
The Court believes that the hours of Tim Kingston are reasonable and not duplicative. Mr. Kingston was local counsel in this case and his timesheets reflect an appropriate amount of work. The Court notes that Shirley Kingston was present at the depositions and many hearings where Mr. Pevar and Paul Schor were also present. The Court believes that while Ms. Kingston's presence may have been helpful, it was duplicative and Defendants should not be required to pay for this time. The Court will decrease Shirley Kingston's hours by ten and a half hours for travel time and for forty-eight hours of non-travel time.
6. Fees for Law Student Paul Schor
Defendants assert that Plaintiffs should not be able to claim fees for the work of Paul Schor, a summer intern, for work done during the summer of 2002. Defendants argue that there is no indication that anyone paid for his work, rather Mr. Schor received academic credit towards his degree. Plaintiffs respond that the services provided by Mr. Schor were indispensable and timesaving.
Tenth Circuit case law is clear that the time of law students can be compensated. "As to services provided by non-lawyers, if `law clerk and paralegal services are ... not reflected in the [attorney's fee], the court may award them separately as part of the fee for legal services.'" Case, 157 F.3d at 1249 (citations omitted). The services of Paul Schor are not reflected in the attorney's fee and should be awarded separately. Plaintiffs point out that the tasks performed by Paul Schor saved Mr. Pevar a considerable amount of time and ultimately saved Defendants being charged for those tasks at the hourly fee charged by Mr. Pevar rather than the much lower hourly fee charged by Mr. Schor. This Court believes that Defendants should have to pay for the services of a unpaid student intern the same as they would pay for the same services for a paid student intern. Defendants have not challenged the $40.00 hourly rate for Mr. Schor and this Court feels that the hourly rate is reasonable. Plaintiffs are granted attorneys fees of $40.00 an hour for time worked by Mr. Schor.
7. Fees for Tim Kingston and Shirley Kingston.
Defendants argue that this Court should deny the fee requests of Shirley Kingston and Tim Kingston, because these attorneys are donating their fees to the ACLU. Defendants argue that these attorneys have worked on this case with no expectation of payment and have cost the ACLU nothing. Defendants cite the case of Ilick v. Miller, 1286 68 F.Supp.2d 1169 (D.Nev.1999). The district court in Ilick *1286 found that the time of volunteer attorneys should not be compensated because there was no cost to the Plaintiffs for that work.
The Ilick court appears to be the only case suggesting volunteer attorneys should not be able to recover attorneys' fees. The Fourth Circuit in Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 517 F.2d 1141, 1148 (4th Cir.1975), found that "when an allowance of attorneys' fees is justified, it should be measured by the reasonable

value of the lawyer's services. It should not be diminished because the attorney has agreed to contribute the money, in whole or in part, to a civil rights organization whose aims have stimulated him to work voluntarily." Id. at 1148.
The Tenth Circuit has clearly stated that public interest attorneys are entitled to compensation in the same manner as attorneys working in private firms. In Ramos, the Tenth Circuit stated "[w]e agree with most courts that have considered the issue that calculating attorney's fees for public interest lawyers and private firm lawyers in the same manner furthers the legislative intent underlying 42 U.S.C. § 1988." Ramos, 713 F.2d at 551. The Ramos Court went on to note that "[w]hen Congress enacted § 1988 it made no distinction between the compensation to be awarded to private lawyers and that to be awarded to lawyers working in public interest law firms." Id. The Tenth Circuit in Ramos additionally stated:
Potential liability for full value fee awards can deter violations of the civil rights laws, especially in situations in which the fee award represents a significant portion of a defendant's financial exposure. Establishing a lower fee when public interest lawyers represent plaintiffs will reduce the incentive to eliminate violations, and will provide defendants with less incentive to settle and more incentive to engage in dilatory tactics than would be present if private firm lawyers were involved.
Id. at 552.
This Court does not believe there is any merit in the argument that an attorney should be able to recover fees that would benefit him personally, but should not be allowed to recover fees if that attorney is planning on donating those fees to an organization. This Court does not believe the purposes of § 1988 would be served by a rule prohibiting an attorney's fee award to attorneys who plan on donating those fees to a public interest organization. Therefore, the Court will allow Tim Kingston and Shirley Kingston to recover fees for time worked except as otherwise noted in this judgment.
8. Fees on Fees.
Finally, Defendants argue that the plain language of § 1997e(d)(1) shows that Plaintiffs' attorneys may not receive fees for time spent collecting fees. Defendants argue that § 1997e(d)(1) provides attorneys' fees only when "the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded ..." 42 U.S.C. § 1997e(d)(1). Plaintiffs respond that this argument has been rejected by every Court to consider the issue.
Prior to the enactment of the PLRA in 1996, Tenth Circuit law was clear that attorney's fees should be awarded for time spent pursuing a fee claim. See Love v. Mayor, City of Cheyenne, 620 F.2d 235, 237 (10th Cir.1980) ("Plaintiff is also entitled to attorney's fees ... for work done in resolving the fee issue itself.")
This issue before the Court is whether the passage of the PLRA altered this rule. The Tenth Circuit has yet to 1287 address this issue, however, other Courts which have considered this question have found that *1287 fees on
fees continue to be available in PLRA cases. The Third Circuit, in Hernandez v. Kalinowski, 146 F.3d 196, 199-200 (3rd Cir.1998) found that "fees for time spent in preparing a fee petition are included within the meaning of `fees directly and reasonably incurred in proving an actual violation ....' Otherwise the attorney's fee to which he or she is entitled by law is in fact diminished." Id. (This same reasoning was adopted by the Fifth Circuit in Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir.2001)).
This Court finds the reasoning of the Third and Fifth Circuits is persuasive on this issue and will allow Plaintiffs to recover fees on fees.
9. Enhanced Fee.
Plaintiffs additionally ask this Court for a one-third multiplier in this case. Plaintiffs assert that the bulk of the work in this litigation was performed by Mr. Pevar, excellent results were obtained, and the matter was resolved through summary judgment and settlement avoiding the need for a trial. Defendants respond that the PLRA does

not provide for a multiplier and that case law providing an enhanced fee is pre-PLRA, and therefore not applicable to PLRA cases.
This issue raises a novel question. This Court can find no other case discussing whether the PLRA allows for a multiplier in extraordinary cases. In a pre-PLRA case the United States Supreme Court stated:
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.
Hensley, 461 U.S. at 435, 103 S.Ct. 1933. The Tenth Circuit in Ramos set out circumstances justifying an enhanced fee. "`Exceptional success' justifying an enhanced fee may be based upon the performance of counsel 0907 for example, victory under unusually difficult circumstances or with an extraordinary economy of time 0907 or upon the result achieved 0907 total victory or establishment of significant new law." Ramos, 713 F.2d at 557.
Defendants argue that the PLRA precludes an enhancement of attorneys' fees. This Court disagrees with Defendants' contention. In this case the Defendants were spared much higher attorneys' fees and costs by the excellent work of Plaintiffs' counsel. Most of the work in this case was performed by one attorney. Through the work of that attorney, the class action was decided on summary judgment and Mr. Skinner's individual claims were settled, avoiding a costly trial. Additionally, through summary judgment on the class actions claims, Plaintiffs have helped to create new policies at the WSP. Plaintiffs have vindicated the constitutional rights of a large group of people. The Court would additionally note that Plaintiffs achieved all of this while facing strong resistance and tenacious defense of these claims by the State. During oral arguments on this motion, Defendants asked the Court to make a fee award that would be reasonable and fundamentally fair. Given the low hourly rate allowed under the PLRA, this Court cannot make a fair award without granting an enhancement of the fee. "The purpose of § 1988 is to ensure `effective access to the judicial process' for persons with civil rights grievances." Hensley, 461 U.S. at 429, 103 S.Ct. 1933 (quoting, H.R.Rep. No. 94-1558, p. 1 (1976)). The Court is skeptical that many attorneys, especially those with the skill and experience of Mr. Pevar, would be willing to take a case such as this for $135 per hour. If there is no enhancement for exceptional success, such as in this case, then effective access to the judicial process is denied.
1288 *1288 Therefore, the Court will award Plaintiffs twenty-five percent enhancement for Mr. Pevar's time in the case.
Conclusion
Plaintiffs' Motion for Attorney's Fees and Expenses is GRANTED in the amount of $427,158.72, this fee is calculated as follows: Steven Pevar, 2133.1 hours at $135 per hour for $287,968.50[3], with the twenty-five percent multiplier of $71,992.13; Mr. Kingston, 51.92 hours at $135.00 per hour for $7,009.20; Ms. Kingston, 136.5 hours at $100 per hour and 15.5 hours at $50 an hour for travel time for a total of $14,425.00; Paul Schor, 226 hours at $40.00 for $9,040.00; Steven Pevar, 19 hours for fee brief preparation at $135.00 per hour for $2,565.00; and expenses of $36,297.89, less travel expenses for Paul Schor of $2,139.00, for total expenses of $34,158.89.
[1] 42 U.S.C. § 1997e(d) states:
(d) Attorney's fees.
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 2 of the Revised Statutes of the United States (42 U.S.C. § 1988), such fees shall not be awarded, except to the extent that 0907
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section 2 of the Revised Statutes; and
(B)

(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
[2] 42 U.S.C. § 1997e(d)(3) states:
No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18, United States Code, for payment of court-appointed counsel.
[3] While this amount is very large, particularly for Wyoming awards, it must be remembered that the total hours of work was large and was occasioned by the nature of the case. The Defendants, in suggesting what they thought to be reasonable felt that a fee of $240,387.98 was reasonable, so this amount is not too far afield from it.
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 410 F.Supp.2d 1104 (2006)
Brad SKINNER, on his own behalf and on behalf of all other persons similarly situated, Plaintiffs, v.
Judith UPHOFF; Vance Everett; James Hewitt; David Ebell; all in their individual and official capacities, Robert Ortega and Scott Abbott, in their official capacities, Defendants.
No. 02-CV-033B.
United States District Court, D. Wyoming.
January 20, 2006.
1105 *1105 Shirley Kingston, Laramie, Stephen L Pevar, American Civil Liberties Union, Hartford, CT, Timothy C Kingston, Graves Miller & Kingston, Cheyenne, for Plaintiffs.
Patrick J. Crank, Wyoming Attorney General, John W Renneisen, Wyoming Attorney General, David Delicath, Wyoming Attorney General, Steven Richard Czoschke, Wyoming Attorney General, Dan Fetsco, Wyoming Attorney General, Cheyenne, for Defendants.
SECOND ORDER ON VARIOUS MOTIONS
BRIMMER, District Judge.
This matter is before the Court on (1) Plaintiffs' Motion to Alter or Amend; (2) Defendants' Motion for Relief from Order; (3) Plaintiffs' Motion for Declaratory Judgment Re: Plaintiffs' Right to Communicate with the Outside Investigator; (4) Plaintiffs' Motion for Declaratory and Injunctive Relief; (5) Plaintiffs' Motion for Leave to Engage in Formal Discovery; and (6) Defendants' Motion for Termination of Final Decree and Prospective Relief. After 1106 considering the motions, having reviewed the materials on file, having *1106 heard oral argument and being fully advised in the premises, the Court FINDS and ORDERS as follows:
BACKGROUND
Plaintiff Skinner originally filed this suit on February 15, 2002, asserting claims individually and on behalf of other similarly situated individuals. Individually, he sought compensatory and punitive damages pursuant to 42 U.S.C. § 1983, for violations of his Eighth and Fourteenth amendment rights. The Plaintiff also sought injunctive relief preventing the Defendants from failing to take all necessary and proper steps to safeguard him and other Wyoming State Penitentiary (WSP) inmates from unprovoked assaults by other inmates.[1]
On November 27, 2002, this Court granted injunctive relief and declaratory relief on the Plaintiffs' class action claim.[2]Skinner v. Uphoff, 234 F.Supp.2d 1208, 1210-12 (D.Wyo.2002) (finding that Defendants failed to adequately train and supervise employees, failed to properly review policy violations, failed to properly discipline employees, all of which led to risks to inmate safety). In an effort to alleviate the problems at the WSP, a Remedial Plan was adopted and approved by this Court.
As part of the Remedial Plan, the Defendants were required to periodically provide certain documents and information to the Joint Expert and Plaintiffs' counsel. Because some of these documents contained information considered to be confidential pursuant to the Wyoming Public Records Act, Wyo. Stat. Ann. §§ 16-4-200 through 16-4-205, the State Self Insurance Act, Wyo. Stat. Ann. §§ 1-41-101 through 1-41-110, and the Wyoming Criminal History Record Act, Wyo. Stat. Ann. §§ 7-19-101 through 7-19-602, and other state and federal confidentiality laws, this Court promulgated a protective order (July 15, 2003, Order for Protection of Documents) to prevent the dissemination of confidential information.

This Court subsequently formulated a system to govern the production and dissemination of documents provided by the Defendants to the Plaintiffs' counsel. (September 27, 2005, Order on Various Motions 10) Accordingly, the Defendants are required to redact all confidential and privileged information from documents which Plaintiffs' counsel is entitled to review or receive. After the redacted materials are provided to Plaintiffs' counsel, he is allowed to distribute and disseminate them as he deems fit. Id.
Another portion of the Remedial Plan, Policy 1.012, provided a procedure for the investigation of suspected cases of inmate on inmate assaults. This procedure called for the hiring of a professional investigator within the Wyoming Department of Corrections (WDOC) and for the utilization of an outside investigator when assaults appear to be premeditated. The Remedial Plan also established time lines for investigating incidents at the prison and for completing reports on such investigations.
Both parties agree that under the Remedial Plan the Defendants have improved prison conditions. However, both parties now contend that modifications to the Remedial Plan and to this Court's September 27, 2005, Order on Various Motions are necessary. Specifically, in five separate motions, the parties have asked the Court to review and make modifications in its September 27, 2005, order, for other declaratory relief and for discovery. 1107 Additionally, the Defendants have filed a Motion *1107 for Termination of Final Decree and Prospective Relief.
DISCUSSION
There are currently six motions pending before the Court. They are (1) Plaintiffs' Motion to Alter or Amend; (2) Defendants' Motion for Relief from Order; (3) Plaintiffs' Motion for Declaratory Judgment re: Plaintiffs' Right to Communicate with the Outside Investigator; (4) Plaintiffs' Motion for Declaratory and Injunctive Relief; (5)Plaintiffs' Motion for Leave to Engage in Formal Discovery; and (6) Defendants' Motion for Termination of Final Decree and Prospective Relief. The Court will address these motions, in turn, below.
I. Plaintiffs' Motion to Alter or Amend
As explained in the preceding section, the Remedial Plan requires the Defendants to provide all investigation reports and some supporting documentation to the Plaintiffs. The Court issued a protective order so that confidential information contained in the documents is not disseminated. Subsequently, the Court provided a mechanism by which the Defendants may redact the confidential information contained in the documents and then the Plaintiffs' counsel may disseminate the redacted documents to the Plaintiffs, their relatives, the media and the public at large. Order on Various Motions, 9-10, filed September 27, 2005.
The Plaintiffs now seek a declaration that the Defendants have a legal duty, separate and apart from this litigation, to make investigative reports available to inmates, the public and the media. The Plaintiffs argue that, in the long term, when the Remedial Plan is no longer in effect, the right of the inmates and the public to examine investigative reports will not be terminated, and thus, the Defendants must be required to provide them. The Plaintiffs also argue that, in the short term, it is the Defendants' duty to make reports available, not Plaintiffs' counsel. At oral argument of the matter, the Plaintiffs proposed the following language be added to the Court's earlier Order on Various Motions:
In order to ensure that inmates and members of the public may exercise their right to read Defendants' redacted investigative reports, the Defendants must make copies of those reports available to them at reasonable cost. Indigent inmates must be allowed by the Defendants to read these reports without charge, subject to such reasonable restrictions on time, place, and manner as the Defendants may impose.
The Defendants have taken the position that this language is not required and that no amendment to the Court's earlier order is necessary. Rather, the Defendants argue that there is no legal authority for the Plaintiffs' position; that requiring the Defendants to disseminate copies of reports any time anyone requests it would place an undue burden on the Defendants; and that the question is not ripe because the issue of Plaintiffs' right to obtain and disseminate redacted documents has already been resolved.

The Court has resolved the question of accessibility during this litigation and the pendency of the Remedial Plan. See September 27, 2005 Order on Various Motions at 9-10. The Court agrees with the Plaintiffs that, during the pendency of the Remedial Plan, the Defendants, and not the Plaintiffs' attorney, ought to bear the burden of producing documents to the media and public at large, when requested to do so by the media and the public. Therefore, the Court hereby amends its earlier Order on Various Motions to contain the following:

1108

While the Remedial Plan is in effect, the Defendants have the responsibility for making redacted versions of investigative *1108 reports available to the public and the media, when requested by those parties. Defendants may charge a reasonable fee to cover copying and production costs.

However, as is the practice in any litigation, it is the duty of the Plaintiffs' counsel to provide redacted documents to the Plaintiffs and their families, as he has done through this date.

The Court now turns to the Plaintiffs' request that the Court address production of reports after the Remedial Plan is no longer in effect. This Court has stressed the importance of the ongoing role of the inmates and the public in monitoring the prison conditions in Wyoming. Regular review of investigative reports is one way in which the inmates and the public can act as a check to insure that the great strides made under the Remedial Plan continue to hold after the Remedial Plan is long gone. And, for this reason, the Court feels strongly that redacted investigative reports ought to be accessible, even after the end of this litigation.

However, the question of accessibility of documents after the termination of the Remedial Plan cannot and should not be addressed by the Court at this time. The Remedial Plan has not been terminated. And, to this Court's knowledge, no inmate, member of the public or media has requested copies of any investigative reports from the Defendants. Similarly, no inmate, member of the public or media has been denied access to these documents. Thus, this issue is simply not ripe for adjudication. Moreover, the Prison Litigation Reform Act (PLRA) requires that the prospective relief granted by the courts "extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C. § 3626(a)(1). The PLRA goes on to state that:

The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

There are mechanisms contained in the Wyoming statutes which address the state's duty to produce documents to the public and which provide a framework for obtaining documents. See Wyoming Public Records Act, Wyo. Stat. Ann. §§ 16-4-201, et seq. These mechanisms may well be adequate in the future, once the Remedial Plan has been terminated. If not, the aggrieved parties seeking to obtain documents may proceed through the normal channels of appeal to the courts and assert their rights at that time.

II. Defendants' Motion for Relief from Order

The Defendants are seeking to modify the portion of the Court's September 27, 2005, Order on Various Motions to the extent that the Order places an affirmative duty on the Defendants to redact documents, but places no duty on Plaintiffs' attorney to carefully scrutinize the documents for confidential material before disseminating them to his clients. Defendants apparently take issue with this language because, they claim, "the Court has unnecessarily offered an opinion on what duty might or might not be imposed on Defendants under state tort law." Defendants' Motion for Relief from Order at 3.

Contrary to the Defendants' claims, this Court is not asserting any "opinion" as to state tort law. Rather, quite necessarily, the Court has required that somebody redact the documents which will be made available to the 1109 Plaintiffs, the public and the media. Because those documents are *1109 in the custody of the Defendants and because the Department of Corrections is the very agency which is responsible for the safety of prison inmates, it only makes sense that the Defendants bear the responsibility of redacting documents. The Court is quite sure that, if the Plaintiffs' counsel finds an error in Defendants' redaction, he will alert the Defendants and not disseminate the document. However, the responsibility for redacting does not lie with the Plaintiffs' attorney. Therefore, the Court will deny the Defendants' motion.

III. Plaintiffs' Motion for Declaratory Judgment re: Plaintiffs' Right to Communicate with the Outside Investigator
As explained above, the Remedial Plan requires that suspected premeditated inmate on inmate assaults be investigated by an Outside Investigator who is an independent contractor with the Wyoming Department of Corrections (WDOC). Remedial Plan 4, ¶ 5. Once the Outside Investigator completes a report, he then submits it to the WDOC. Policy 1.012 (incorporated in the Remedial Plan). A copy of the report is then forwarded by Defendants' counsel to the Joint Expert and to Plaintiffs' counsel. Remedial Plan 17, ¶ 2.
The Plaintiffs have requested that the Court issue declaratory relief that the Plaintiffs have a right to ask the Outside Investigator questions concerning his investigations.
The Defendants claim that because the Outside Investigator must act independently of both parties, he must be free from constant queries and requests which could amount to pressure concerning his findings from the parties. Defendants thus take the position that neither the Plaintiffs nor the Defendants should be permitted to question the Outside Investigator regarding his investigations.
Both parties rely upon the Strawser v. Exxon, 843 P.2d 613 (Wyo.1992), decision to support their positions. In Strawser, the Wyoming Supreme Court held that litigants may engage in ex parte communications with employees of a defendant corporation unless (1) the employee is in a managerial position; or (2) the employee's statements could bind the corporation; or (3) privileged information was sought. The Plaintiffs claim that because the Outside Investigator does not fall within any of the three excluded categories, they are entitled to question him. The Defendants take the position that because the Outside Investigator is an independent contractor who is not an employee or a victim or witness, the Strawser case does not apply.
The facts that the Outside Investigator is not an employee, that he is an independent contractor and that he is hired by the state to conduct independent investigations do not provide him with insulation from questioning under Strawser. Conclusions made by the Outside Investigator in his reports bear directly upon whether the Defendants are complying with the Remedial Plan and, ultimately, whether the ongoing violations of the Plaintiffs' rights have been cured. Therefore, it appears to the Court that both parties must have the ability to question the Outside Investigator with respect to the findings and conclusions that are contained in his reports. There has been no evidence submitted to the Court which would indicate that the Outside Investigator would be unduly pressured by legitimate questions asked by either party.
Therefore, the Court holds that both the Plaintiffs and Defendants ought to have the opportunity to ask the Outside Investigator questions regarding his reports, provided that those questions are legitimate and not 1110 frivolous or harassing. Any party desiring to question the Outside Investigator *1110 must provide a copy of questions propounded to the opposing party. The Outside Investigator has the right to refuse to answer any questions and, if he chooses to answer questions, must provide answers to both the Plaintiffs and the Defendants.
IV. Plaintiffs' Motion for Declaratory and Injunctive Relief
Next, the Plaintiffs have requested declaratory and injunctive relief enjoining the Defendants from unnecessarily delaying abatement of staff error, misconduct and other institutional deficiencies discovered during investigations of inmate on inmate assaults. In their motion, the Plaintiffs raise two issues. First, they contend that the addition of a new step in the abatement process has caused too many delays. Second, they claim that the Defendants are misinterpreting § I-E-8 of the Remedial Plan, which sets forth a deadline for the Warden to take personnel action when disciplinary action is recommended. The Court addresses both issues below.
In the past, when an investigation uncovered staff error, misconduct or other institutional deficiency, the Warden would devise a remedy to abate the deficiency and then would send his plan to the Director of the WDOC, who also acted to review the plan and make a final determination. Under this scenario, according to the Plaintiffs, deficiencies were promptly abated. The Defendants have added a new step in the process and, now, when the Warden receives a recommendation by an investigator regarding staff error, misconduct or other deficiency, he assigns subordinates to review the investigator's recommendations and submit a proposed solution to him. The warden then examines the proposal and sends a recommendation on to the Director.

The Plaintiffs agree that the addition of this step is not, in and of itself, objectionable. In fact, they agree that it is laudable to draw mid-level management into the abatement process. Their problem with the new procedure is, simply, that it has unnecessarily added too much time to the abatement process.
The Plaintiffs also raise a related issue, claiming that the Defendants are not complying with Section I-E-8 of the Remedial Plan. That section provides, in pertinent part, "Whenever any person having authority to recommend disciplinary action, recommends that a staff member be disciplined . . . the Warden must within 14 days . . . initiate a personnel action."
The underlying question before the Court is whether it should grant injunctive and declaratory relief regarding the timing of the Defendants' actions in abating defects. The Remedial Plan contains an implicit requirement that the Defendants must take corrective actions promptly to abate deficiencies at the prison. See, e.g., Policy 1.012 (incorporated into the Remedial Plan and setting forth procedures and a timeline for investigation of inmate on inmate assaults); Remedial Plan § I-D (describing the General Incident Tracking Log); Remedial Plan § I-E (describing staff disciplinary procedures). Failure to do so only perpetuates the dangerous conditions that led to the filing of this lawsuit in the first place.
There is evidence before the Court that in some instances the Defendants have waited months before taking any abatement actions. See Plaintiffs' Motion for Declaratory and Injunctive Relief, exh. 1 at 2, filed under seal. There is also evidence before the Court that the Defendants have taken a number of corrective actions to address problems at the WSP. From October 2003 through November of 2005, the WDOC has taken one hundred fifty 1111 (150) actions regarding one hundred twenty (120) different staff members. See *1111 Defendants' Response to Motion for Declaratory and Injunctive Relief re: Defendants' Corrective Actions, exh. E, filed under seal.[3]
The Court is aware of the fact that the time needed for the implementation of different abatement actions varies depending on the nature of the action required. Therefore, the Court is reluctant to impose any deadlines that do not already exist in the Remedial Plan or the Court's subsequent orders. Nonetheless, the Court recognizes that unnecessary delay in the implementation of important corrective actions could increase the risk of injury to inmates at the WSP. As a result, the Defendants must comply with the deadlines contained in the Remedial Plan, the documents incorporated in the plan, and this Court's subsequent orders modifying the plan.[4] Those deadlines include the fourteen (14) day deadline contained in section I-E-8 of the Remedial Plan. If the Defendants find that they need additional time in any particular instance, they can notify the Plaintiffs' counsel that they need an extension, the reasons therefore and the amount of additional time needed. If Plaintiffs' counsel does not object, the extension will be deemed necessary and granted. If Plaintiffs' counsel does object and the parties cannot reach an agreement regarding the extension, the Plaintiffs can file an objection with the Court, which will then rule on the merits of the objection.
V. Plaintiffs' Motion for Leave to Engage in Formal Discovery
The Plaintiffs have requested that the Court grant them leave to engage in formal discovery by way of interrogatories in order to fully understand and monitor the Defendants' compliance with the Remedial Plan. The Defendants do not generally object to the Plaintiffs engaging in formal discovery. Rather, they take the position that the Plaintiffs must be limited in the scope and number of interrogatories that they may serve, in accordance with the Local Rules of this Court. U.S.D.C.L.R. 33(a)(limiting interrogatories to twenty five (25)).
In light of the fact that the Defendants have filed their Motion for Termination of Final Decree and Prospective Relief and, due to the numerous number of incidents involved in this matter, this Court finds that there is good cause for the Plaintiffs to exceed the twenty-five interrogatory limit contained in U.S.D.C.L.R. 33(a).
The Plaintiffs may pose as many interrogatories as necessary, so long as those interrogatories are relevant, pertinent and not frivolous or harassing. Of course, the Defendants may object to any discovery propounded by the Plaintiffs in accordance with the Local Rules and/or the Federal Rules of Civil Procedure.
VI. Defendants' Motion for Termination of Final Decree and Prospective Relief

The Defendants filed their Motion for Termination of Final Decree and Prospective Relief on January 3, 2006. Because it has been more than two years since the Final Decree was entered by the Court on October 7, 2003, 1112 the Defendants are entitled to seek this relief under section 3626(b)(1)(A)(i) of the PLRA. 18 U.S.C. *1112 § 3626 (b)(1)(A)(i). Section 3626(b)(2) of the PLRA requires this Court to determine, based on the record, whether there is a "current and ongoing violation of the Federal right."
In the case of Ginest v. Board of County Commissioners of Carbon County, 295 F.Supp.2d 1274, 1276 (D.Wyo.2004), this Court took the position that "[b]ecause the PLRA directs a district court to look to current conditions, and because the existing record at the time the motion for termination is filed will often be inadequate for purposes of this determination, the party opposing termination must be given the opportunity to submit additional evidence in an effort to show current and ongoing constitutional violations." (citations omitted)
The situation is the same here. The Court finds that the Plaintiffs must be allowed the opportunity for discovery and then both parties must present evidence of the existence or non-existence of ongoing violations so that this Court may issue a ruling on the Defendants' motion. As this Court ruled at the January 5, 2006, oral argument, the discovery cutoff date will be ninety days from the date of oral argument, or March 29, 2006. After that time, the Plaintiffs will have twenty days, until April 18, 2006, in which to brief their position, and the Defendants will have ten days, until April 28, 2006, in which to respond. The Court will then hear the matter on May 31, 2006, at 9:00 a.m.
Finally, the PLRA provides that, once a motion for termination is filed, there is an automatic stay which takes effect beginning the thirtieth (30th) day after the motion is filed. 18 U.S.C. § 3626(e)(2)(A)(i). The PLRA also provides that the "court may postpone the effective date of an automatic stay . . . for not more than 60 days for good cause." 18 U.S.C. § 3626(e)(3).
While the Court has recognized that the Defendants have come a long way in remediating the conditions that exist at the WSP, the Court is aware of violations alleged to be in existence at this time. The Plaintiffs have made allegations concerning ongoing inmate on inmate violence, delays in the Defendants' remedial actions, and concerns raised by the Joint Expert. See, e.g., Plaintiffs' Motion to Alter or Amend; Plaintiffs' Motion for Declaratory Judgment re: Plaintiffs' Right to Communicate with the Outside Investigator; Plaintiff's Motion for Declaratory and Injunctive; and Plaintiffs' Motion for Leave to Engage in Formal Discovery. Based upon these allegations and the need to ensure that the Defendants continue to address conditions at the WSP, this Court finds that there is good cause to postpone the effective date of the automatic stay and therefore orders that the automatic stay be postponed 60 days, as provided under section 3626(e)(3).
WHEREFORE, Plaintiffs' Motion to Alter or Amend is GRANTED, in part, and DENIED, in part; Defendants' Motion for Relief from Order is DENIED; Plaintiffs' Motion for Declaratory Judgment re: Plaintiffs' Right to Communicate with the Outside Investigator is GRANTED; Plaintiff's Motion for Declaratory and injunctive Relief is DENIED in part and GRANTED in part; Plaintiffs' Motion for Leave to Engage in Formal Discovery is GRANTED; Defendants' Motion for Termination of Final Decree and Prospective Relief is DEFERRED, pending discovery and the evidentiary hearing to be held on May 31, 2006, at 9:30 a.m.
[1] For a complete recitation of the facts precipitating this lawsuit, see Skinner v. Uphoff, 234 F.Supp.2d 1208, 1210-12 (D.Wyo.2002).
[2] The parties eventually reached a settlement regarding Skinner's individual claims.
[3] Those actions included counseling about a staff error one hundred five (105) times, twelve (12) written reprimands, five (5) temporary suspensions, one (1) reduction in rank, five (5) involuntary terminations, and nine (9) references for remedial training.
[4] The Court also notes that in its September 27, 2005, Order on Various Motions, 19-20, it provided a mechanism by which the Defendants can acquire additional time if they cannot meet a particular deadline.

Save trees - read court opinions online on Google Scholar.

 
 457 F.Supp.2d 1269 (2006)
Brad SKINNER, on his own behalf, and on behalf of all other persons similarly situated, Plaintiff, v.
Robert LAMPERT, Director of the Wyoming Department of Corrections, and Scott Abbott, Warden of the Wyoming State Penitentiary, in their official capacities, Defendants.
No. 02-CV-033-B.
United States District Court, D. Wyoming.
August 7, 2006.
1274 *1274 Shirley Kingston, Laramie, WY, Stephen L. Pevar, American Civil Liberties Union, Hartford, CT, Timothy C. Kingston, Graves Miller & Kingston, Cheyenne, WY, for Plaintiff.
Order Denying Defendants' Motion to Terminate, Modifying Prospective Relief, and Granting in Part and Denying in Part Plaintiffs' Six Contempt Motions
BRIMMER, District Judge.
The Wyoming State Penitentiary has operated under the supervision of this Court since October of 2003 because of unconstitutional conditions of confinement that failed to reasonably protect inmates from inmate-on-inmate violence. See Skinner v. Uphoff, 234 F.Supp.2d 1208 (D.Wyo.2002). The Defendants now seek to end this Court's supervision, claiming there are no current and ongoing violations of any federal right. The Plaintiffs oppose termination and have filed six contempt motions for various violations of this Court's final decree.
BACKGROUND
This class-action Eighth Amendment "failure to protect" case arose out of a challenge to the conditions of confinement at the Wyoming State Penitentiary in Rawlins. Plaintiff Brad Skinner, who had been severely beaten by other inmates even after seeking protection from prison guards, brought the action on his own behalf and on behalf of current and future inmates. Plaintiff Skinner claimed that the Penitentiary's administrators, who were the predecessors of the current Defendants, and a number of individual prison guards failed to reasonably protect him individually0907and state prisoners as a class0907from inmate-on-inmate violence.
The administrators admitted that they had not recorded the number of inmate assaults occurring at the Penitentiary between 1996 and 2002. Id, at 1214, n. 1. They also admitted that, despite their own policies, they had neither systematically investigated inmate assaults nor addressed their causes. Id. On the three occasions they saw fit to investigate, the defendant-administrators took no remedial or disciplinary action even though institutional deficiencies and staff misconduct contributed to the assaults. Id. For these reasons and others, this Court found that conditions at the Penitentiary violated the inmates' Eighth Amendment right to be reasonably protected from physical violence in the form of assaults by other inmates. Id. at 1216. The unconstitutional conditions were the result of three undisputed failures by the defendant-administrators: (1) failure to adequately train and supervise staff in how to investigate and abate dangerous conditions, (2) failure to develop an effective internal review process for the reporting of policy violations committed by staff, and (3) failure to discipline malfeasant staff. Id. at 1214-16.
The Court ordered the parties to develop a remedial plan to eliminate these violations. The parties agreed to significant portions of a remedial plan, but the negotiations eventually stalled. The Defendants then submitted a

proposed remedial plan that incorporated provisions the parties agreed upon and provisions the parties could not agree upon. After reviewing the proposed plan and the Plaintiffs' objections, the Court entered a final decree incorporating the Defendants' second proposed remedial plan with certain modifications (the "Remedial Plan") on 1275 October 7, 2003. (See Final Decree Adopting and Incorporating Defs.' Second Proposed Remedial *1275 Plan, with Modifications, and Granting in Part and Denying in Part Pl's Objections to the Plan.)
During the next two years, the Court and the Plaintiffs monitored the Penitentiary's efforts to eliminate the unconstitutional conditions. During that time, this Court ordered the Defendants to share certain information about inmate assault investigations with the Plaintiffs and their counsel and established rules for protecting confidential information. Skinner v. Uphoff, 410 F.Supp.2d 1104 (D.Wyo.2006) (second order on various motions); Skinner v. Uphoff, No. 02-CV-033-B, 2005 WL 4089333 (D.Wyo. Sept. 27, 2005) (order on various motions).
On January 3, 2006, the Defendants filed their motion to terminate the final decree and all related prospective relief. As required by the Prison Litigation Reform Act, 18 U.S.C. § 3626, the Remedial Plan was stayed as of March 29, 2006. Id. at § 3626(e). The Plaintiffs opposed the motion and filed six contempt motions on May 5, 2006. After extensive discovery, the parties filed numerous exhibits to support their respective motions, and the Court heard oral argument on June 1, 2006.
DEFENDANTS' MOTION TO TERMINATE

I. Termination of the Remedial Plan is controlled by the Prison Litigation Reform Act, 18 U.S.C. § 3626.
Prison-reform decrees arising from any civil action with respect to prison conditions, like the Remedial Plan in this case, are governed by the Prison Litigation Reform Act, 18 U.S.C. § 3626 (the PLRA or the Act). The PLRA "establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions." Miller v. French, 530 U.S. 327, 331, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000).
A. Limitations upon Prospective Relief

The purpose of the PLRA is to limit the power of a federal court to grant prospective relief in prison-conditions litigation. See, e.g., Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir.1997) (citing 141 Cong. Rec. 14,418-19 (1995)). To this end, prospective relief, which is defined as "all relief other than compensatory monetary damages," 18 U.S.C. § 3626(g)(7), "shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." Id. § 3626(a)(1)(A). A federal district "court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." Id.
B. Termination of Prospective Relief

Historically, prison-reform decrees remained in force for significant periods of time, see, e.g., Inmates of Suffolk County Jail, 129 F.3d 649 (more than twenty years); Guajardo v. Texas Dep't of Criminal Justice, 363 F.3d 392 (5th Cir.2004) (twenty years), so the PLRA defines standards for termination of prospective relief. See 18 U.S.C. § 3626(b) (termination standards). First, all prison-reform decrees become terminable after a certain period of time:

1276

[prospective] relief shall be terminable upon the motion of any party or intervener (i) 2 years after the date the court granted or approved the prospective relief under this paragraph; (ii) 1 year after the date the court has entered an order denying termination of prospective relief ...; or (iii) in the case of an order issued on or before the date of enactment of the Prison Litigation Reform *1276 Act [April 26, 1996], 2 years after such date of enactment.

Id. § 3626(b)(1)(A). Alternatively,

a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
Id. § 3626(b)(2) (emphasis added). Together, these sections identify a set of cases that are eligible for termination. Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir.1999) (describing "essential decision" in termination cases).
In this case, the Remedial Plan was approved by this Court on October 7, 2003, so any party could move for termination after October 7, 2005. The Defendants filed their motion on January 3, 2006, so the Remedial Plan is terminable.
C. Continuation of Otherwise Terminable Prospective Relief
Upon a timely motion to terminate or a finding that prospective relief was granted without the required findings, prospective relief shall terminate unless the district court makes the following written findings based upon the record: (1) prospective relief remains necessary to correct a current and ongoing violation of a federal right; (2) prospective relief extends no further than necessary to correct the violation of a federal right; and (3) prospective relief is narrowly drawn and the least intrusive means to correct the violation. 18 U.S.C. § 3626(b)(3). This is the standard for the termination decision currently before the Court.
The threshold question is whether there are any current and ongoing violations of a federal right at the Penitentiary. If there are, then the question becomes whether the Remedial Plan is necessary to correct the violations, is narrowly drawn, and is the least intrusive means to correct the violations. The burden is upon the Plaintiffs to prevent termination of the Remedial Plan. Laaman v. Warden, N.H. State Prison, 238 F.3d 14, 20 (1st Cir. 2001); Guajardo, 363 F.3d at 395-96 (per curiam); Hallett v. Morgan, 296 F.3d 732, 741-45 (9th Cir.2002).
D. Interpretations of Section 3626(b)
There is almost no Tenth Circuit law regarding section 3626(b) motions to terminate, so the most significant rulings come from other circuits. Three: considerations are important. First, a "current and ongoing violation of a Federal right" is one that is occurring at the time of the section 3626(b) inquiry, so potential future violations are insufficient to support continued prospective relief. Inmates of Suffolk County Jail, 129 F.3d at 662; ParaProfessional Law Clinic, SCI-Graterford v. Beard, 334 F.3d 301 (3rd Cir.2003); Castillo v. Cameron County, Tex., 238 F.3d 339, 353 (5th Cir.2001); Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000). Second, violation of the specific terms of a prison-reform decree does not necessarily equal a violation of a "Federal right" under section 3626. Plyler v. Moore, 100 F.3d 365, 370 (4th Cir.1996) ("we conclude that the term `Federal right' as used in § 3626(b)(2) does not include rights conferred by consent decrees providing relief greater than that required by federal law"). In this case, the federal right previously violated by the administrator-defendants was the inmates' Eighth Amendment right to reasonable protection, and the Plaintiffs do not argue there is any other federal right being violated. Therefore, given the first two considerations, the Plaintiffs must show that this right is currently 1277 being violated to defeat the Defendants' *1277 motion to terminate. Finally, if the Court finds a current and ongoing violation of a federal right, "it must make written findings on the record about whether the prospective relief aimed at that violation remains necessary to correct it." Cason, 231 F.3d at 784. The Court's findings should not be conclusory; rather,
the district court should engage in a specific, provision-by-provision examination of the ... decree[], measuring each requirement against the statutory criteria. The court must determine, and enter findings about, whether each requirement extends no further than necessary to correct a current and ongoing violation of a federal right, is narrowly drawn, and is the least intrusive means of correcting that violation.
Id. at 785.

E. Evidentiary Hearings and Section 3626(b)
The fact-intensive analysis required by section 3626(b) will often require an evidentiary hearing, which may be granted at a district court's discretion. A hearing may also be required if the parties, especially the inmateplaintiffs, request one. See Id. at 782-83 (evidentiary hearing is required where plaintiffs have alleged current and ongoing violations of their federal rights) and Loyd v. Alabama Dep't of Corrections, 176 F.3d 1336 (11th Cir.1999) (same), but compare Berwanger, 178 F.3d at 840 (a new hearing is only needed if the requesting party offers evidence showing disputed issues of material fact) and Guajardo, 363 F.3d at 397 (per curiam) (same). In unpublished opinions, the Tenth Circuit has endorsed an evidentiary hearing in a prison-conditions case where defendants sought to terminate injunctions established before the PLRA, but that hearing was to be limited to the issues in the parties' filings so plaintiffs were not allowed to expand the litigation to other issues. Battle v. Fields, 81 F.3d 172No. 95-7164, 1996 WL 145675, *2 (10th Cir. 1996), readopted and reaffirmed in 100 F.3d 967, 1996 WL 647273, *1 (10th Cir.1996) (applying PLRA standards) (unpublished decisions).
A hearing is not required in this case for two reasons. First, neither party has requested one. Second, there has been significant discovery, as evidenced by the voluminous exhibits filed by the parties to support their various motions, since the Defendants filed their motion to terminate in January of 2006. The practical question is whether this Court can make the necessary findings from the documents filed by the parties. After reviewing the exhibits and considering the parties' preferences, the Court finds that it can make the necessary findings and an evidentiary hearing is therefore not required.
II. The Court finds current and ongoing violations of the Plaintiffs' constitutional right to reasonable protection at the Wyoming State Penitentiary.
The Remedial Plan must be terminated unless there is a current and ongoing violation of the Plaintiffs' federal rights, specifically their Eighth Amendment right to reasonable protection from inmate assaults. It is a close question, and the Defendants have made significant progress in addressing the unconstitutional conditions at the Penitentiary, but the Court finds there remain current and ongoing violations of Plaintiffs' Eighth Amendment right to reasonable protection. The Defendants' Motion for Termination of Final Decree and Prospective Relief is DNIED.
A. The Eighth Amendment Right to Reasonable Protection
"[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to 1278 scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31, 113 *1278 S.Ct. 2475, 125 L.Ed.2d
22 (1993). Prison officials have the duties of providing humane conditions of confinement and ensuring adequate food, clothing, shelter, and medical care, as well as taking "reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Specifically,
prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners. Having incarcerated persons with demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course. Prison conditions may be restrictive and even harsh, but gratuitously allowing the beating or rape of one prisoner by another serves no legitimate penological objective any more than it squares with evolving standards of decency. Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.
Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citations omitted).

B. Legal Standard for Violations of the Eighth Amendment
The test for a violation of the Eighth Amendment contains both objective and subjective components. See id. at 834, 114 S.Ct. 1970. The objective component requires inmates to show that they are "incarcerated under conditions posing a substantial risk of serious harm." Id. This includes "official conduct that is `sure or very likely to cause' serious injury at the hands of other inmates." Benefield v. McDowall, 241 F.3d 1267, 1272 (10th Cir. 2001) (quoting Helling, 509 U.S. at 33, 113 S.Ct. 2475). As applied to inmate violence, officials create a substantial risk of serious harm and satisfy the objective component when they fail to reasonably investigate suspected assaults or fail to abate any institutional failures or staff misconduct that unreasonably contributes to these assaults. Skinner, 234 F.Supp.2d at 1214-15. Where prison officials allow a "code of silence" to insulate them from accurate information about institutional failures or staff misconduct, the risk of serious harm is even greater. See id. at 1215-16.
Although conditions posing a substantial risk of serious harm are necessary, they are not sufficient to find an Eighth Amendment violation because inmates must also show that prison officials had the culpable state of mind known as "deliberate indifference." Farmer, 511 U.S. at 834, 114 S.Ct. 1970. This is the subjective component of an Eighth Amendment violation. Deliberate indifference lies "somewhere between the poles of negligence at one end and purpose or knowledge at the other." Id. at 836, 114 S.Ct. 1970. It exists when an official "knows of and disregards an excessive risk to inmate health or safety." Id. at 837, 114 S.Ct. 1970. Knowledge by a prison official may be demonstrated by circumstantial evidence, and "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that it was obvious." Id. at 842, 114 S.Ct. 1970. Furthermore, an inmate "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. Deliberate indifference may exist if "the evidence show[s] that [prison officials] ... refused to verify underlying facts that [they] strongly suspected to be true, or declined to confirm inferences of risk that [they] strongly suspected to exist." Id. at 842 n. 8,114 S.Ct. 1970.
1279 *1279 C. Current Conditions at the Penitentiary 0907Significant Improvements since 2003
Before discussing the conditions that cause this Court to find current and ongoing violations of the Eighth Amendment, it is important to give credit to the Defendants and the State for the significant improvements they have made. Prior to this litigation, there were no records kept regarding the number of inmate assaults, and only three investigations of inmate assaults occurred between 1996 and 2002. Although staff conduct was discovered to be a contributing factor in these assaults, no disciplinary actions were taken. Today, after three years of court supervision, the situation is significantly better. The Defendants have created an Investigations Unit within the Department of Corrections. This unit, which is led by the Investigations Major, investigates potential inmate assaults whenever there is an appearance of injury. Since 2003, there have been 153 investigations, each of which resulted in a written report. The investigations indicate that there were 89 assaults since October of 2003. Thirteen assaults were determined to be premeditated, which triggered an outside investigation under the Remedial Plan. Only two assaults caused serious injuries to inmates that required overnight hospital stays. The Penitentiary failed to keep records prior to 2003, so it is impossible to say if the current level of violence is higher or lower than it was in the past. Regardless, the Defendants' increased attention to inmate assaults is obvious and laudable.
Significantly, the Defendants are not just investigating assaults; they are taking action upon what they learn. The Defendants have taken 159 staff disciplinary actions against 125 different employees as a result of the assault investigations. The Defendants have also improved their staff training and now provide comprehensive training to all employees on the Penitentiary's inmate safety policies and requirements. The Penitentiary's staff are becoming professionals, which will inevitably improve the status of Wyoming prison guards and the conditions of confinement imposed upon prisoners. The Defendants' accomplishments are all the more impressive given the

challenges they face recruiting people for difficult jobs that are not highly paid in a local economy characterized by a "tight" labor market.
The new-found attention to inmate assaults is at least in part a result of the new management personnel at the Department of Corrections0907about one-half of the old management has left since 2002 0907and the commitment of the current Defendants to improving the Penitentiary. This Court is genuinely glad to see such improvements at the Penitentiary, and nothing in this order is meant to minimize the importance of this progress. Good work is good work, even when more work remains to be done.
D. Current and Ongoing Violations of the Eighth Amendment
With due consideration of the significant improvements made by the Defendants and this Court's statutory duty to not exercise its supervisory authority one minute more than necessary, this Court nonetheless finds that current and ongoing violations of the Eighth Amendment exist at the Penitentiary. The Court would be shirking its moral and constitutional duty to the inmates incarcerated at the Penitentiary to find otherwise.
1. Failure to Adequately Investigate and Abate Dangerous Conditions0907the Penitentiary's Inmate Conflict Documentation System
The primary problem in the past was the lack of attention to inmate assaults 0907assaults that were neither counted 1280 nor investigated. Even when there was an investigation, nothing was done to abate any *1280 dangerous
conditions discovered. The Defendants are now tracking and investigating inmate assaults at the Penitentiary; however, the Court finds the Defendants' response to known failures of its inmate conflict documentation system has been inadequate. Given the Penitentiary's historical inattention to inmate assaults, the Defendants' inadequate response violates the Eighth Amendment.
Personal conflicts between inmates, which can arise prior to or during incarceration, are one source of inmate assaults. (See Collins Dep. 121:19-122:12, March 7-8, 2006 (joint expert); see also Pls.' Depo. Exhibit Volume 1 Exh. 124 (Warden's Memorandum # 8 re: Documentation of Inmate Conflicts, February 19, 2004).) A functioning conflict documentation system is therefore essential to the reasonable protection from inmate assaults. The Penitentiary has a conflict documentation system, the Wyoming Corrections Information System (WCIS), that attempts to record and investigate inmate-reported conflicts and then document verified conflicts to prevent placement of inmates with conflicts in proximity to each other, especially in the housing units. (See Def. Lampert Depo. 118:7-16, March 14, 2006.) There is no constitutional requirement that a prison's conflict documentation system be perfect, and the Penitentiary's system is not. For example, a premeditated assault resulted in part because a lieutenant admittedly failed to check the conflict documentation system before moving an inmate into a housing unit. (Def. Lampert Depo. 117:21-118:21; Pls.' Depo. Exhibit Volume 1 Exh. 67.)
A more disturbing example is the case of Inmate Roe. (See Pls.' Fifth Contempt Motion: Defs.' Failure to Timely Remedy a Dangerous Condition 4-10; Defs.' Resp. to Pls.' Br. in Opposition to Mot. for Term, of Final Decree and Six Mots, for Contempt Exh. L; Abbott Depo. 258:1-268:11; Pls.' Depo. Exhibit Volume 1 Exh. 92, 124.) During his initial processing into the Penitentiary in August of 2004, Inmate Roe declared a pre-existing conflict with another inmate, Inmate Doe. On October 18, 2004, prison staff noted the conflict and decided that Roe was not to be housed in the same unit as Doe. (See Pls.' Depo. Exhibit Volume 1 Exh. 92.) Thirteen days later, on October 31st, this conflict was entered into the Penitentiary's conflict database. (Abbott Depo. 263: 21-22.) Unfortunately, on October 21st or 22nd, Roe had been assigned to Doe's cell despite the declared and acknowledged conflict. (Defs.' Resp. to Pls.' Br. in Opposition to Mot. for Term, of Final Decree and Six Mots, for Contempt Exh. L.) Despite entry of the conflict into WCIS, Roe remained in Doe's cell for approximately eight months until Doe was transferred to Texas, which appears to have been in May of 2005. (Id.; Thayer-Steele Depo. 38:7-22, March 29, 2006.) During this time, Doe allegedly beat and sexually assaulted Roe multiple times. (Id.) Roe allegedly told several staff members that he had a conflict with his cellmate, but he did not report the assaults for fear of retribution until Doe was transferred. (Defs.' Resp. to Pls.' Br. in Opposition to Mot. for Term, of Final Decree and Six Mots, for Contempt Exh. L.) No conclusion has been made as to the veracity of Roe's

assault allegations, but it is not disputed that he should not have been placed in the same cell as Doe because of the declared and verified conflict. The investigation is still in process, but the conflict was missed in part because of a delay in entering it into the WCIS. (Abbott Depo. 263:21-23.)
Because of the failure of the Penitentiary's conflict documentation system in Roe's case, the system was changed. (Id. 264:6-17.) Despite the changes, the Penitentiary once again moved an inmate on Roe's conflict list 1281 into Roe's housing unit in 2005. (Id, at 264:18-21.) Fortunately, it does *1281 not appear that this resulted in an assault. It is a serious problem, however, because the Defendants have not done enough to determine how this second mistake happened. Although Defendant Abbott has known of this incident since October or November of 2005 and although he suspects staff malfeasance, he has only referred the issue to the Investigations Unit. (Id. at 265:9-267:19.) He has taken no steps to investigate the matter himself even though he admits that failures in the conflict documentation system can be fatal (id. at 264:14-17), even though he is not certain the Investigations Unit is in fact investigating the second error (id. at 264:25-265:3), and even though he is expected to conduct an immediate investigation to address immediate management issues under Policy 1.012 and the Remedial Plan. As a result, several months after the current conflict documentation policy failed due to possible "staff malfeasance," Defendant Abbott still is not certain how the system failed or whose misconduct resulted in the housing of an inmate on Roe's conflict list in his unit.
The Court finds the repeated failures of the Penitentiary's conflict documentation system to be an immediate concern, and Defendant Abbott's delayed and inadequate investigation of these failures created a substantial risk of serious harm.[1] The Court further finds that Defendant Abbott acted with deliberate indifference because he knew about the existence of flaws in the design or implementation of the Penitentiary's conflict documentation system for at least five months and did almost nothing to uncover the flaws or any staff misconduct. His decision to refer the matter to the Investigations Unit and then wait months for a resolution was unreasonable given the immediate security concerns raised by the repeated failures of the system. Defendant Abbott's continuing failure to adequately investigate the failures in the Penitentiary's conflict documentation system is therefore a current and ongoing violation of the Plaintiffs' Eighth Amendment right to reasonable protection.
The Defendants' failure to perform an immediate inquiry into the second failure of the conflict documentation system is especially worrisome considering the Penitentiary's historic indifference to inmate assaults. This example suggests that the Defendants believe formalistic adherence to the Remedial Plan by merely referring all inmate assault issues to the Investigations Unit without considering the need for immediate, independent action is sufficient to protect inmates' federal rights; it is not. This seems especially true in the first case where an inmate's assault allegations may be difficult to verify even though the cause of the prison's failure may not be difficult to find, and in the second case where no assault is reported even though an unreasonable risk of an assault was created by the prison's failure. In cases where strict adherence to the procedures laid out in the Penitentiary's policies (or the Remedial Plan) is inadequate to address an immediate security concern, the Defendants must act to reasonably protect inmates0907merely dotting the i's and crossing the t's of Penitentiary policy or the Remedial Plan does not satisfy the Constitution.
2. Failure to Implement an Effective Internal Review Process for the Reporting of Staff Error, Staff Misconduct, and Institutional Deficiencies that Cause or Contribute to Inmate Assaults ("Code of Silence")
1282 One of this Court's primary concerns has been the Penitentiary's historic *1282 failure to implement an effective internal review process prior to this lawsuit. The result of this failure was a culture of silence 0907sometimes referred to as a "code of silence"0907that prevented administrators from ostensibly knowing much of what was happening at the Penitentiary. Various requirements of the Remedial Plan, especially the Certification Requirement, were designed to break the silence and give the Defendants the information they needed to reasonably protect the inmates in their care.

The Certification Requirement specifically requires prison staff to report "any mistake or misconduct by an employee ... or any institutional deficiency [that] may have caused or contributed to [an assault] incident." (Defs.' Second Proposed Remedial Plan 6-7 (adopted by Court on October 23, 2006).) Given the Penitentiary's historic silence about inmate assaults, inclusion of the Certification Requirement in its incident reporting forms was necessary for implementation of an effective internal review process because it required staff to inform administrators of potentially dangerous conduct, policies, or conditions. It simultaneously communicated to prison staff the importance of reporting mistakes, misconduct, and institutional deficiencies and thereby directly confronted the culture of silence at the Penitentiary. Although there is evidence suggesting the requirement has been difficult to implement, the Defendants have made efforts to train staff to comply with it.
That said, the Defendants have fatally undermined the effectiveness of the Certification Requirement by narrowly interpreting "institutional deficiency." Specifically, both Defendant Lampert and Defendant Abbott interpret "institutional deficiency" to exclude any policy or practice that has been previously investigated and determined to be acceptable by a supervisory member of the administration; therefore, if an employee has previously reported a perceived deficiency, orally or otherwise, and has been told by a supervisor that the policy does not create a deficiency, then that employee is not required to report the perceived deficiency in subsequent incident reports even if he or she believes the policy in fact contributed to an inmate assault. (See Abbott Depo. 15:10-18:4; Lampert Depo. 32:5-9, 34:1-37:4; see also Pls.' Depo. Exhibit Volume Exh. 108 (Joint Expert's Preliminary Comments, May 13, 2005).) Defendant Abbott put it this way:
If the officer has addressed [a bad policy that contributed to an assault] before with his supervisory staff or has previously had it reviewed[, and] it has been found that [it] is the way the institution wishes to operate, I don't believe there would be a requirement [to report the officer's opinion that the policy contributed to an assault].
(Abbott Depo. 15:25-16:4.) The result favors the status quo: once a policy or procedure has been investigated, prison staff are now no longer required to report when they believe that policy or procedure contributed to or caused an inmate assault. And the silence returns.
The Defendants' interpretation creates a substantial risk of harm because the Defendants will not know when their own employees, who are on the front-lines at the Penitentiary, have reason to believe that an inmate assault is the result of a settled policy or procedure. Row else are the Defendants to know when their understanding of the effects of prison policies and procedures is no longer valid? How else are they to know when a mistake has been made in the evaluation of a prison policy or procedure? The Defendants' interpretation of "institutional 1283 deficiency" encourages a business-as-usual mentality, *1283 which is a close cousin to the see-no-evilhear-noevil mentality that existed prior to 2002. Because of the historic culture of silence about inmate assaults at the Penitentiary, the Defendants' desire to systematically filter out new, contradictory information about settled policies and procedures is especially dangerous. It limits the knowledge of administrators and that sends the wrong message to staff.
The policy is also more dangerous at the Penitentiary because of the significant changes in management, staff, physical plant, and policy that have occurred and continue to occur. Filtering information about settled policies prevents new managers from identifying potential problems created by previous decisions, and thereby inhibits the ability of new thinking to affect the Penitentiary's operations. Moreover, the message to new staff is not to question settled policies. This threatens to reproduce the culture of silence. For these reasons, the Court also finds the danger created by the Defendants' interpretation of "institutional deficiency" to be obvious, so the Defendants' interpretation demonstrates deliberate indifference.
III. The Court finds the provisions of the Remedial Plan meet the neednarrowness-intrusiveness requirements of the PLRA.
The Court has found that two continuing and ongoing violations of the inmates' federal right to reasonable protection from inmate assaults: (1) the Defendants' refusal to adequately respond to the immediate concerns raised by the repeated failure of their conflict documentation system; and (2) the Defendants' interpretation of

"institutional deficiency" in the Certification Requirement such that evidence of problems resulting from settled policies and procedures is systematically filtered out. The first violation results from the Defendants' failure to adequately investigate and abate dangerous conditions; the second from the Defendants' failure to implement an effective internal review process to uncover staff error or misconduct and institutional deficiencies. Having found current violations, the question becomes whether the Remedial Plan is necessary to correct the violations, is narrowly drawn, and is the least intrusive means to correct the violations 0907the so-called "need-narrownessintrusiveness" requirement of the PLRA. Benjamin v. Fraser, 343 F.3d 35, 52 (2nd Cir.2003); Cason, 231 F.3d at 784. A majority of the Remedial Plan's provisions remain necessary, narrowly tailored, and the least intrusive means to correct the current violations: these provisions and the related policies and orders shall remain in force. Certain provisions regarding outside investigations and staff discipline are no longer necessary and are terminated.
A. Investigations
1. Investigation Requirement
The Remedial Plan requires the Penitentiary to investigate all suspected incidents of inmate physical altercations or assaults. The initial investigation is to be performed by the Investigations Unit under the command of the Investigations Major. Every assault that is not found to be a "spontaneous fight" is to be investigated by an outside investigator.
The internal investigation requirement remains necessary to cure the Defendants' failures to adequately investigate and abate dangerous conditions and to cure the Defendants' failure to implement an effective internal review process. As Defendants admitted at oral argument in this matter, the internal investigations are the best way to uncover dangerous conditions, staff error or misconduct, and institutional deficiencies. The Court further 1284 finds that the internal investigations requirement is narrowly tailored and the least intrusive *1284 means for remedying the current violations.
Regarding the outside investigation requirement for premeditated assaults, the Court finds this requirement is no longer necessary to correct the current violations at the Penitentiary. The Investigations Unit and the Plaintiffs' ability to review appropriately redacted written reports provides a sufficient check upon the possibility of biased investigations within the Penitentiary. Also, the distinction between premeditated assaults and spontaneous fights does not matter in light of the current violations, which are more a function of the Defendants' conduct towards investigations and security concerns in general. Finally, given the current violations, the outside investigations are unnecessarily intrusive and therefore cannot be imposed under the PLRA. The outside investigation requirements of the Remedial Plan are therefore terminated.
2. Incident Report Forms and the Certification Requirement
Besides requiring investigations, the Remedial Plan requires prison staff to report "any mistake or misconduct by an employee ... or any institutional deficiency [that] may have caused or contributed to [an assault] incident." (Defs.' Second Proposed Remedial Plan 6-7 (adopted by Court on October 23, 2006).) This is the Certification Requirement. For the reasons discussed above, when the Court found that the Defendants' interpretation of "institutional deficiency" was a current and ongoing violation of a federal right, the Court finds this requirement remains necessary to address the culture of silence at the Penitentiary. The Court further finds that the Certification Requirement is narrowly tailored to address the culture of silence problem and is the least intrusive means to do so.

3. Staff Discipline
The Court has found there is no current and ongoing failure to discipline staff at the Penitentiary, so there is no justification for imposition of any duties that go above and beyond the State of Wyoming's existing disciplinary process. Any such duties imposed by the Remedial Plan are therefore terminated.
However, the Court finds that provisions for limited dissemination of information concerning staff discipline related to incidents of inmate harm through the General Incident Tracking Log remains necessary to correct the current and ongoing violations because this information relates to the actions taken by the Defendants to abate dangerous conditions. The provisions and orders making this necessary information available to the Plaintiffs and the Joint Expert, including the limits placed upon use and availability of this information, are narrowly tailored and the least intrusive means to correct the current and ongoing violations. The provisions for dissemination of this kind of information in the Remedial Plan and this Court's other orders therefore remain in force.
B. Institutional Culture
The Remedial Plan required the Defendants to assess the culture at the Penitentiary, educate staff on the; rights of inmates and the Penitentiary's policies and procedures for inmate protection, and educate inmates on their rights to tie reasonably safe from harm by other inmates. The Defendants completed a cultural assessment, so this requirement has been satisfied. The Court finds the education of staff and inmates remains necessary to remedy the current and ongoing violations because it promotes the conscientious reporting and investigation of 1285 inmate assaults and promotes the prompt abatement *1285 of dangerous conditions. The Court further finds these requirements to be narrowly tailored and the least intrusive means to remedy the current and ongoing violations.
C. Compliance0907The Joint Expert
The Remedial Plan provided for a joint expert, William Collins, to report on the progress of the Defendants at regular intervals. The Court finds the Joint Expert provided necessary information for the evaluation of the Defendants' compliance with the Constitution and this Court's orders. The Joint Expert's oversight may be intrusive, but it is nonetheless the least intrusive means to acquire objective information to evaluate the conditions of confinement at the Penitentiary. The powers granted to and responsibilities imposed upon the Joint Expert in the Remedial Plan remain in force. The parties and the Joint Expert are ORDERED to negotiate a schedule for inspection and reporting that allows the Joint Expert to produce one report during the remainder of 2006 and two reports each year thereafter. This schedule shall be filed with the Court no later than September 1, 2006.
D. Incorporated Policies and Procedures
The Remedial Plan incorporated various Penitentiary policies and State of Wyoming procedures. To the extent these policies and procedures apply to provisions that remain in force, they continue to be incorporated in the Remedial Plan as modified by this order. First, they are necessary to correct the current and ongoing violations because the related provisions are necessary. Second, since they are the policies and procedures of the Penitentiary, the Department of Corrections, and the State of Wyoming, they are found to be narrowly tailored and the least intrusive means to correct the current and ongoing violations.
E. Supplemental Orders
The Court has issued supplemental orders to resolve particular issues that arose in the implementation of the Remedial Plan. See Skinner, 410 F.Supp.2d 1104 (second order on various motions); Skinner, No. 02-CV-033-B,

2005 WL 4089333 (D.Wyo. Sept. 27, 2005) (order on various motions). To the extent these orders apply to provisions that remain in force, they continue to remain in force because they are necessary, narrowly tailored, and the least intrusive means to correct the current and ongoing violations.

PLAINTIFFS' SIX CONTEMPT MOTIONS

In response to the Defendants' motion to terminate the Remedial Plan, the Plaintiffs filed six contempt motions for specific violations of the Remedial Plan. These violations were also part of their argument that the Defendants are currently violating inmates' federal right to reasonable protection from inmate assaults. The Court has already made its findings regarding the current and ongoing violations of federal rights at the Penitentiary, so it will evaluate the Plaintiffs' contempt motions only as violations of a court order.

Civil contempt is one method a district court may use to enforce its orders. Hutto v. Finney, 437 U.S. 678, 690-91, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

1286

In a civil contempt proceeding, the proof of contempt must be clear and convincing. To make a prima facie showing of contempt, however, the [plaintiff] need prove only that the defendant has failed to comply with a valid court order. It need not prove that the defendant is able to comply.... [T]he defendant [then bears] a burden of production. This burden is normally satisfied when the defendant produces sufficient evidence of his inability to comply to raise a *1286 question of fact. The burden of persuasion remains on the [plaintiff], but what may be required to sustain the burden varies according to the evidence produced by the defendant. Initially, the [plaintiff] need persuade the court only that the defendant has failed to comply with a valid court order. Once the defendant has produced detailed evidence regarding his inability to comply with the order, the [plaintiff] has the additional burden of persuading the court that the defendant actually is able to comply.

Heinold Hog Market, Inc. v. McCoy, 700 F.2d 611, 615 (10th Cir.1983) (quoting United States v. Rylander, 656 F.2d 1313, 1318 (9th Cir.1981)).

I. Plaintiffs' First Contempt Motion

Plaintiffs allege Defendants deliberately failed to comply with the Remedial Plan's two-tiered investigation process, which requires an initial internal investigation of every assault and then an outside investigation if the assault is found to be premeditated, in two specific instances. In the first instance, Defendant Lampert sent the investigation of a large-scale fight involving 20 inmates to an outside investigator without first doing an internal investigation. Defendants respond that the Investigations Major was present during the fight so his investigatory ability was compromised, and the fight was definitely premeditated so it was going to be sent to an outside investigator anyway. In the second instance, Defendant Lampert refused to refer the investigation of an assault upon an inmate (Incident No. 01.05.0193) by two purported gang members even though the internal investigation indicated the assault was premeditated. Defendants respond that the inmate-victim refused to cooperate because of his safety concerns, so the investigation was halted.
The Court finds that the Defendants failed to comply with the investigation requirements of the Remedial Plan in the first instance. The Court further finds that compliance was possible in the first instance because the internal investigation could have been completed by another internal investigator even if the Investigation Major's presence at the fight made it impossible for him to conduct the investigation. Therefore, the Court finds the Defendants in contempt for their failure to complete an internal investigation, and Plaintiffs' First Contempt Motion is GRANTED IN PART as to the first instance. However, the Court imposes no fine or penalty because an investigation was in fact completed.
In the second instance, the Court finds that Defendants' refusal to refer the second investigation to an outside investigator was not a violation of the Remedial Plan. Even if it were a technical violation, the Court finds that the Defendants could not comply with the outside investigation requirement because the inmate-victim stated he

would refuse to cooperate if there were further investigation. Plaintiffs' First Contempt Motion is therefore DENIED IN PART as to the second instance.
II. Plaintiffs' Second Contempt Motion
Plaintiffs allege that Defendants have deliberately failed to implement the Certification Requirement of the Remedial Plan, which seeks to eradicate the "code of silence" by requiring staff to document staff error or misconduct or institutional deficiencies that contributed to each assault. Defendant Lampert's position is that if an officer has already discussed a policy decision with supervisory staff and the officer has been told that the policy is acceptable, then the officer's opinion that the policy contributed to an assault need not be included in the Certification Requirement. Plaintiffs argue this deliberately undermines the requirement. Defendants argue that 1287 this prevents rehashing *1287 policy decisions that have been made in the past and avoids constant reconsideration of policies that have been adequately considered and implemented. As discussed above, the Court has found the Defendants' interpretation of the Certification Requirement to be a current and ongoing violation of a federal right requiring continued supervision by this Court. The Court also finds the Defendants' conduct in contempt of court and Plaintiffs' Second Contempt Motion is GRANTED. No fine or penalty is imposed.
III. Plaintiffs' Third Contempt Motion
Plaintiffs allege that Defendants have deliberately failed to adequately train staff on the requirements of the Certification Requirement because staff do not know that they are to include their opinions, not just the facts of an incident. Defendants state there was some confusion in the initial training, but these problems have been resolved and all staff are now properly trained on the Certification Requirement. The Court finds that the Defendants' efforts to train staff on the Certification Requirement have adequately complied with the intent of the Remedial Plan. Plaintiffs' Third Contempt Motion is DENIED.
IV. Plaintiffs' Fourth Contempt Motion (Request for Injunction)
Plaintiffs allege that the Defendants have consistently failed to respond to safety concerns raised by front-line officers about the staffing levels at the Penitentiary. Specifically, Plaintiffs point to Defendants' failure to respond to two memos sent by officers working in the Housing Unit regarding inadequate staffing and the officers' concerns about the resulting dangers. Plaintiffs admit there is no staffing requirement in the Remedial Plan, but contend that the Defendants' failures to investigate staffing levels that may contribute to assaults violate the spirit, if not the express command, of the Remedial Plan. If necessary, the Plaintiffs ask the Court to issue an injunction to prevent this dangerous practice. Defendants assert that they do review staffing complaints by comparison with the most recent staffing studies, but admit they do not reply to every complaint about inadequate staffing.
Staffing is important to the reasonable protection of inmates, but there are no express staffing requirements in the Remedial Plan and the Court finds no grounds to establish such requirements. The Court further finds that the Defendants' current reliance on their most recent staffing studies does not violate the Remedial Plan and does not violate any federal right. Likewise, the Defendants' failure to respond to the staff members who raised the concerns does not violate any federal right. Plaintiffs' Fourth Contempt Motion is DENIED.
V. Plaintiffs' Fifth Contempt Motion
Plaintiffs' Fifth Contempt Motions is based primarily upon the Defendants' failure to respond to the admitted failures of their conflict documentation system in the case of Inmate Roe. As detailed in section II.D.1 above, the Court has found the Defendants' failure to be a current and ongoing violation of a federal right justifying this Court's continued supervision of the Penitentiary. The Court also finds the Defendants in contempt; Plaintiffs Fifth Contempt Motion is GRANTED. No fine or penalty is imposed.

VI. Plaintiffs' Sixth Contempt Motion
Plaintiffs allege that the Defendants have failed to investigate claims of inadequate staffing in the Penitentiary even though staffing levels have been implicated in several assault investigation reports. Defendants argue they 1288 have adequate and up-to-date staffing studies available and *1288 that the Penitentiary consistently operates with adequate staff. As stated above, staffing is important to the reasonable protection of inmates, but the Court finds that the Defendants' current reliance on their most recent staffing studies does not violate the Remedial Plan and does not violate any federal right. Plaintiffs' Sixth Contempt Motion is DENIED.
CONCLUSION
Despite the efforts of the Defendants and Plaintiffs and this Court, current and ongoing violations of the inmates' right to reasonable protection from inmate assaults continue at the Wyoming State Penitentiary; therefore, this Court retains its supervision under the Remedial Plan as modified by this order. The automatic stay of the Final Decree is lifted and the Remedial Plan, as modified by this order, is once again in effect. The Defendants may move for termination again one year after the date of this order. The Court encourages the Defendants to continue their good work and complete the needed changes to the Penitentiary during the coming year so that this Court's supervision of the Penitentiary can end.
[1] In doing so, the Court makes no findings regarding the validity of Inmate Roe's assault allegations against Inmate Doe. Whether or not Roe was actually assaulted, the failure of the conflict documentation system created a substantial risk of serious harm.
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 Skinner v. Uphoff, 209 F.R.D. 484 (2002)
209 F.R.D. 484 United States District Court,
D. Wyoming.
Brad SKINNER, on his own behalf and on behalf of other persons similarly situated, Plaintiffs, v.
Judith UPHOFF; Vance Everett; James Hewitt; David Ebell and John does 1 through 6; all of them
in their individual and official capacities, Defendants.
No. 02–CV–33–B. | Aug. 2, 2002.
Attorneys and Law Firms
*485 Timothy C. Kingston, Graves, Miller & Kingston, Cheyenne, WY, Shirley Kingston, Laramie, WY, Stephen L. Pevar, American Civil Liberties Union, Hartford, CT, for plaintiffs.
Steven Richard Czoschke, Wyoming Attorney General, Cheyenne, WY, for defendants.
Opinion
ORDER GRANTING CONDITIONAL CLASS CERTIFICATION
BRIMMER, District Judge.
This case arises out of a challenge to the existing conditions at the Wyoming State Penitentiary in Rawlins. Plaintiff is suing on his own behalf and on behalf of current and future inmates of the prison, alleging that the policies, practices and customs of Defendants place the inmates at the risk of unprovoked assault, bodily injury, and death at the hands of other inmates. The case is now before the Court on Plaintiff’s motion for class certification. After reading the briefs, hearing oral argument, being fully advised of the premises, and in accordance with the oral findings and ruling from the bench at the hearing in this matter, the Court FINDS and ORDERS as follows:
Statement of Parties and Jurisdiction
Plaintiff Brad Skinner is currently serving a sentence imposed for a violation of law in the State of Wyoming. Plaintiff has been placed under the care, custody and

control of the Wyoming Department of Corrections (“WDOC”). Since Plaintiff’s sentence in October of 1999, he has been incarcerated at the Wyoming State Prison (“WSP”) in Rawlins, Wyoming. Plaintiff Skinner filed this suit on behalf of himself and all other inmates of WSP as a class action pursuant to Fed.R.Civ.P. 23(b)(1) and (b)(2) for purposes of obtaining declaratory and injunctive relief.
Defendant Judith Uphoff is a citizen and resident of Wyoming, and is being sued in her individual and official capacities. Defendant Uphoff has been Director of the WDOC at all times material to this action. As Director, Uphoff is the agency official ultimately responsible under state law for the operation and administration of WSP.
Defendant Vance Everett is a citizen of Wyoming, and is being sued in his individual and official capacities. Defendant Everett has been Warden at WSP at all times material to this action. With regard to Plaintiff’s claim for injunctive relief, Everett is now the Complex Administrator of the WSP. In both capacities he had and has a duty and obligation under state law to ensure, among other things, that inmates are protected against unprovoked assault by other inmates.
Defendant James Hewitt is a citizen of Wyoming and is being sued in his individual and official capacities. Defendant Hewitt has been a security officer at WSP at all times material to this action. Hewitt’s duties have included ensuring the safety and protection of WSP inmates.
Defendant David Ebell is a citizen of Wyoming and is being sued in his individual and official capacities. Defendant Ebell has been a security officer at WSP at all times material to this action. Ebell’s duties have included ensuring the safety and protection of WSP inmates.
*486 Defendants John Does One through Six are security officers who were assigned to monitor the living unit in which Plaintiff Skinner resided on the day and time he was assaulted and whose duties included ensuring Skinner’s safety. At the time Plaintiff filed his Complaint in this action, the actual identity of these Defendants was unknown, however, Plaintiff intends to obtain the names of these Defendants through pretrial discovery.
Jurisdiction of this Court is asserted pursuant to 28 U.S.C. §§ 1343(3) and (4) as this action seeks relief pursuant to 42 U.S.C. § 1983. Venue is proper pursuant to 28 U.S.C. § 1391(b).
Background
1

Skinner v. Uphoff, 209 F.R.D. 484 (2002)
Plaintiff Skinner, an inmate at WSP, was transferred from a housing unit to B–Star, Block 4, a “closed custody” housing unit on November 4, 1999. The unit is built in the shape of a star with the security rotunda in the middle. B– Star is in the North prison, which has been closed since Skinner’s attack and no longer houses inmates. Inmates have been moved to the new South prison, and to other instate and out-of-state facilities.
Plaintiff alleges that within an hour of his arrival in B– Star, an inmate informed him that other inmates did not welcome his presence, and that he would be assaulted if he stayed. Plaintiff took this threat seriously and reported it to the guards. Defendant Ebell escorted Plaintiff to Defendant Hewitt’s office, where Plaintiff proceeded to tell Hewitt of his fear of assault, during which account, Plaintiff was so scared that he broke down and cried. Plaintiff pleaded with Hewitt to move him to another tier. Plaintiff alleges that Hewitt berated, insulted and yelled at Plaintiff and then forced Plaintiff to sign a statement that Hewitt had written saying that Plaintiff felt safe returning to his cell (such document has since disappeared). Now Plaintiff was even more afraid since the inmates who had threatened him would have seen him go straight to security to “tattle.”
Ebell was present in the room during Plaintiff’s conversation with Hewitt. In the report that Ebell wrote the next day, he said that he “called Yard observation, B– Unit and Central Control to tell them to monitor [Plaintiff] and also to pass this info on to the second shift.” Defendants named as Does 1–6 were the officers instructed as above by Ebell.
Plaintiff was returned to his cell in B–Star, where 3 inmates subsequently entered his cell and assaulted him. One of the inmates was allegedly wearing a stocking cap and a white scarf obscuring his face. They began to beat Plaintiff.
Cell doors are generally left open during the day, but are closed periodically during “Count” where officers walk through the unit and check on each inmate. One of these Counts occurred during the beating. The three assailants left Plaintiff’s cell and told him to keep quiet. He did, and though there was blood all over his face, and during Count, an officer performing the checks saw this, nothing was done. After Count, the three assailants returned to Plaintiff’s cell and continued to beat and kick him.
Plaintiff passed out from the pain during the beating. When he regained consciousness, he yelled for help. Guards arrived, took photographs of his injuries, and sent him to the hospital. Plaintiff suffered separations in his vertebrae, a concussion, contusions, swelling and a broken nose. He continues to suffer from back pain, migraine headaches, blurred vision and other psychological and physical pain and suffering.

Plaintiff spent five weeks in the prison infirmary. During this time, he alleges that Defendant Hewitt yelled at him after hearing that he may file a lawsuit, and Plaintiff feared retaliation. Plaintiff asserts that he has fully exhausted his administrative remedies to no avail and that conditions at the prison remain the same—as do the systematic inadequacies that left him unprotected in the first place and also threaten all other inmates.
Plaintiff asserts that Defendants Uphoff and Everett have developed and pursued policies and customs that created the substantial risk of bodily harm to the Plaintiff and other inmates, which evidence a deliberate and gross failure to supervise their subordinates. These acts and omissions allegedly include: 1) failure to hire a sufficient number of corrections *487 officers for WSP; 2) failure to train corrections staff in matters of inmate health and safety; 3) failure to take steps after each inmate assault occurred to determine whether staff misconduct led to the assault and whether remedial action was necessary to prevent future assaults; and 4) failure to ensure that corrections staff adequately report and document threats made to inmates regarding their safety. Plaintiff alleges that these failures remain unremedied.
Plaintiff further points out that the United States Department of Justice (“DOJ”) performed an investigation of the WSP which found the WSP seriously lacking in certain respects, and this is proof that the Defendants knew of the dangers and have continued to subsequently disregard them. The DOJ report was issued in June of 1999 and concluded that WSP was understaffed and dangerously overcrowded and that these conditions, among other things, led to injurious assaults by inmates on other inmates.
Plaintiff seeks compensatory damages against all defendants and punitive damages against Hewitt individually based upon 42 U.S.C. § 1983. Plaintiff also seeks injunctive and declaratory relief on his own and the other prisoners’ behalf requesting that the Court order Defendants to train staff in how to handle and investigate threats such as those to Plaintiff; to thoroughly investigate each inmate assault to determine whether it could have been prevented by staff and whether staff misconduct led to or encouraged the assault; to issue written findings after each assault; and to ensure that non-compliant or untrained staff receive discipline or training. Plaintiff also requests that the Court direct Defendants to ensure that incident reports, documents, and logs are properly made and retained regarding incidents of inmate assault.
Discussion
2

Skinner v. Uphoff, 209 F.R.D. 484 (2002)
Plaintiff has moved for class certification pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all present and future inmates of WSP. In order to maintain a class action, Plaintiff bears the burden of showing that the class certification requirements have been met. Rossin v. Southern Union Gas Co., 472 F.2d 707, 712 (10th Cir.1973). The requirements for class action certification contained in Fed.R.Civ.P. 23 require that all four prerequisites contained in Rule 23(a) be met and that at least one of the subdivisions of Rule 23(b) has been satisfied. Fed.R.Civ.P. 23(b); see McHan v. Grandbouche, 99 F.R.D. 260, 262 (1983) citing Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270, 1273 (10th Cir.1976).
Under Rule 23(a), the plaintiff must satisfy four prerequisites to certify a class. “First, the class must be so numerous that joinder of all members is impracticable (‘Numerosity’). Second, there must be questions of law or fact common to the class (‘Commonality’). Third, the claims or defenses of the representative parties must be typical of the claims or defenses of the class (‘Typicality’). And fourth, the representative parties must fairly and adequately protect the interest of the class (‘Adequate Representation’).” Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999).
Once the four requirements of Rule 23(a) are satisfied, the Plaintiff must then establish that the case fits within one of the three subcategories of Rule 23(b). Fed.R.Civ.P. 23(b). Plaintiff has moved to certify the class under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
In Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459, (1969), the Tenth Circuit held that “if there is to be error made, let it be in favor and not against the maintenance of the class action.” Id. However, the Tenth Circuit has also indicated that this “doctrine should not be extended to limit unreasonably the sound discretion of trial courts in cases such as this, where discretion may be the key to a realistic administration of Rule 23, particularly with respect to a determination of the most fair and efficient procedure.” Wilcox v. Commerce Bank of *488 Kansas City, 474 F.2d 336, 344 (10th Cir.1973).
Rule 23(a) Analysis
A. Numerosity

[1] [2] The proposed class potentially includes over 700 inmates currently confined at WSP and any persons who will be confined at WSP in the future. The proposed class is sufficiently numerous, and Defendants do not appear to dispute this contention. The Court also notes that numerosity is met where, as here, the class includes individuals who will become members in the future. As members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable. See Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir.1981); Tonya K. v. Chicago Board of Education, 551 F.Supp. 1107, 1110 (N.D.Ill.1982). Therefore, the Court finds that the numerosity requirement of Rule 23(a)(1) is satisfied.
B. Commonality [3] Rule 23(a)(2) does not require plaintiff show that all facts or legal issues are common to the class. Rather, commonality requires that the plaintiff show only a single issue common to the class. J.B. ex. rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir.1999). “Because a single common issue can satisfy commonality, some courts have described the commonality standard as one that is fairly easily met.” Nicodemus v. Union Pacific Corporation, 204 F.R.D. 479 489 (D.Wyo.2001) (citing Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994)). Plaintiff’s suit involves two overall claims: 1) Plaintiff seeks individual damages for the violation of his own Eighth Amendment rights, and 2) Plaintiff seeks broad injunctive relief challenging the policies, practices, and customs of Defendants Uphoff and Everett that violate the Eighth Amendment rights of the class of all current and future WSP inmates. With respect to the injunctive portion of the case, Plaintiff alleges that virtually every issue of fact and law is common to the class as a whole. For example, the issues of fact concern whether the Defendants have turned a blind eye to inmate-on-inmate assaults by failing to train and supervise correctional staff in prevention of inmate-on-inmate violence and by failing to investigate each inmate assault to determine whether staff malfeasance precipitated it and to then discipline malfeasant staff. Defendants do not address the issue of their policies and customs in this respect.
[4] Under the liberal commonality standard as stated above, the Court finds that the Plaintiff has demonstrated that this case revolves around a common nucleus of operative facts, namely the policies and customs of the prison regarding inmate-on-inmate violence. Therefore, Plaintiff has satisfied the Rule 23(a)(2) commonality requirement.
C. Typicality [5] Typicality under Rule 23(a)(3) requires that “the claims
3

Skinner v. Uphoff, 209 F.R.D. 484 (2002)
or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). The typicality requirement is met “[s]o long as there is a nexus between the class representative’s claims or defenses and the common questions of fact or law which unite the class....” Queen Uno Ltd. Partnership v. Coeur D’Alene Mines Corp., 183 F.R.D. 687, 691 (D.Colo.1998). “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir.1993); Inmates of the Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir.1971) (finding typicality on prisoners’ brutality claim).
In the present case, Plaintiff’s claims and the class claims appear to be identical—in that by failing to properly train and supervise correctional officers regarding inmate-oninmate violence, and by failing to adequately investigate and discipline staff misconduct regarding this violence, Defendants Uphoff and Everett are violating the Eighth Amendment rights of all present and future WSP inmates. Therefore, the typicality requirement is satisfied.
*489 D. Adequacy of Representation There are two aspects of the adequacy of representation element under Rule 23(a)(4), that of the class counsel and that of the named class representative. First, the class counsel must be qualified, experienced and generally able to conduct the proposed litigation; and second, the class representative must have a sufficient interest in the outcome and must not have antagonistic or conflicting interests with other members of the proposed class. Nicodemus, 204 F.R.D. at 491.
In the present action, there appears to be no dispute as to the qualifications or ability of the class counsel or the class representative. Therefore, the Court finds that counsel and the representative adequately represent the interests of the class of all current and future WSP inmates for maintenance of this action.
Rule 23(b)(2) Injunctive or Declaratory Relief

[6] Certification is appropriate under Rule 23(b)(2) when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Plaintiff claims that the requirements of Fed.R.Civ.P. 23(b)(2) have been met as the Plaintiff is seeking systematic declaratory and injunctive relief against the policies, practices, and customs of the Defendants that purportedly violate the Eighth Amendment rights of present and future WSP inmates. It is well established that civil rights actions are the paradigmatic 23(b)(2) class suits, for they seek classwide structural relief that would clearly redound equally to the benefit of each class member. Alliance to End Repression v. Rochford, 565 F.2d 975, 979 n. 9 (7th Cir.1977). However, Defendants argue that certification is not appropriate pursuant to 23(b)(2), as the concerns that are raised have already been addressed in the settlement agreement entered into between the State of Wyoming and the DOJ, and that the agreement shows that the concerns of the class relating to Defendants’ alleged refusal to address their policy and practices regarding inmate violence have indeed been addressed. Plaintiff argues that the report was too vague and general to effect any real changes.
As discussed more fully at the hearing in this matter, the Court will conditionally certify this class action pursuant to Fed.R.Civ.P. 23(c)(1) to facilitate full and fair discovery on all issues. The Court will revisit this conditional certification at the time of the dispositive motions hearing.
Conclusion
Therefore, for all of the aforementioned reasons, the Court FINDS that Plaintiff has adequately shown that he can fulfill the elements of Fed.R.Civ.P. 23(a) and (b)(2) for this Court to conditionally certify this action as a class action pursuant to Fed.R.Civ.P. 23(c)(1). The Court will revisit this conditional certification at the dispositive motions hearing.
	  

4

 
 Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 1 of 21

Patrick J. Crank Attorney General

OR I~L~AL

John W. Renneisen Deputy Attorney General

Craig Kirkwood Senior Assistant Attorney General Herschler Building, 1st Floor West Cheyenne, WY 82002 (307) 777-5457 (307) 777-6329-facsimile

Attorneys for Defendants Uphoff, Everett, Hewitt, Ebell, Ortega and Abbott

'·'.'

6 hn,·•I fl>l.·.• t1.f.

I,;,I\.C.)·_

COURT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf,

)

and on behalf of all other persons

)

similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

WDITH UPHOFF; VANCE EVERETT;

)

JAMES HEWITT; DAVID EBELL; all in their )

individual and official capacities, ROBERT )

ORTEGA and SCOTT ABBOTT, in their

)

official capacities,

)

)

Defendants.

)

Civil Action No. 02-CV-033B

DEFENDANTS' SECOND PROPOSED REMEDIAL PLAN

COME NOW the Defendants, by and through their undersigned attorneys, and hereby submit this Defendants' 2"d Proposed Remedial Plan ("Plan") intended to address and correct the violations

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 2 of 21
outlined by the Court in its summary judgment order of November 27, 2002. INTRODUCTION
By submission of this Defendants'2nd Proposed Remedial Plan neither the Defendants nor Plaintiffs waive any attorney-client, work product or other testimonial or evidentiary privilege. This Plan applies only to the inmates of the Wyoming State Penitentiary at Rawlins, Wyoming.
The Prison Litigation Reform Act, Pub. L. No. I 04-134, II 0 Stat. 1321-66 (1996) ("PLRA") provides the following with respect to prospective relief ordered by the Court in this case:
(a) REQUIREMENTS FOR RELIEF (I) PROSPECTIVE RELIEF- (A) Prospective relief in any civil action with
respect to prison conditions shall extend no further than necessary to correct the violation ofthe Federal right ofa particular plaintiffor plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation ofthe Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
(B) The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless -
(I) Federal law permits such reliefto be ordered in violation of State or local law;
Defendants' 2"' Proposed Remedial Plan- 05/05/03 2

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 3 of 21 -------~---
(ii) the relief is necessary to correct the violation of a Federal right; and (iii) no other relief will correct the violation of a Federal right. 18 USC§ 3626(a). Defendants believe this Plan is workable and satisfies the need for inmate protection from harm at the Wyoming State Penitentiary regarding the issues addressed in the Court's summary judgment order. The Court's Order Granting Plaintiffs Motion for Summary Judgment analyzed the Eighth Amendment violation in three parts: 1. failure to adequately supervise and train subordinates in how to investigate and abate dangerous conditions; 2. failure to develop an effective internal review process for the reporting of policy violations; and 3. failure to discipline malfeasant employees, thereby substantially jeopardizing inmate safety.
I. INVESTIGATIONS A. New Policies & Procedures
I. Attached to Defendants' Plan, and incorporated herein, is the following Policy and Procedure from the Wyoming Department of Corrections ("WDOC"): State of Wyoming Department of Corrections, Policy and Procedures, 1.012, Investigation of Inmate Physical Altercations or Assaults to Inmates at WDOC Facilities, dated April30, 2003. (Attached hereto as Remedial Plan Exhibit A).
Defendants' 2"' Proposed Remedial Plan- 05105103 3

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 4 of 21
"Purpose- To establish a procedure for the identification and investigation ofinmate assaults upon other inmates. The purposes ofsuch investigation will be to determine whether staff error, policy non-compliance or institutional deficiency caused or contributed to such an assault, so that appropriate personnel action, policy revision or other corrective actions may be implemented to minimize the risk of future such incidents. Policy - It is the policy of the Wyoming Department of Corrections (WDOC) to protect inmates against harm from other inmates by development of appropriate policies and procedures and enforcement of staff compliance with those policies."
2. This policy, referred to hereafter as the "Investigations Policy," will govern the WDOC in its conduct of investigations and reporting of incidents involving inmate on inmate physical altercations or assaults.
3. This policy supercedes A.R. #7.017. 4. This policy supplements Director's Executive Order#02-003 andA.R.#l.004. (Attached as Remedial Plan Exhibits B & C, respectively.) 5. All incidents of inmate physical altercations or assaults are required to be reported to the WDOC Central Office pursuant to A.R.#l.004 and Director's Executive Order. The Investigations Major, discussed later, conducts an Initial Inquiry ofthose incidents. Every incident as determined by the Investigations Major which is not a "spontaneous fight" as defined by the Investigations Policy, will be referred by the Investigations Major for Outside Investigation by an investigator who is not a member ofWDOC. The victim shall be interviewed as part of each Outside Investigation. 6. All incidents involving inmate on inmate physical altercation or assault will be tracked through a data collection process, including implementation of all corrective actions, including personnel action or procedural revision.
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Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 5 of 21

7. The Inve~tigations Policy guides the determination of corrective or disciplinary action against staff based on errors, omissions or policy violations. B. Modifying Policies & Procedures
1. From time to time, during the period of this Court's final decree, it may be necessary to adjust the Investigations Policy. The WDOC agrees not to modify, amend or delete the Investigations Policy until forty-five (45) days notice in writing has been given to the Plaintiffs' legal counsel and the Joint Expert. If the Plaintiffs object to a proposed amendment, modification or deletion of the Investigations Policy, the Plaintiffs and the WDOC shall make a good faith effort to confer with each other and reach an agreement concerning the proposed change. Ifthe parties are unable to reach an agreement, the Plaintiffs may apply to the Court, at any time during the forty-five days, for an order to prevent the modification, amendment or deletion of the Investigations Policy by the Defendants, on the grounds that the policy, as modified, amended or deleted poses a substantial risk of exposing the Plaintiffs to increased risk of harm from inmate on inmate assault. If the Plaintiffs have filed their objection with the Court, the amendment, modification or deletion may not be implemented by the Defendants until the Court has ruled upon the merits of Plaintiffs' objection.
2. Nothing contained in this Plan is intended to imply or confer any authority or jurisdiction on the Court, the Joint Expert or the Plaintiffs over any facility ofthe State ofWyoming, Department of Corrections other than the Wyoming State Penitentiary at Rawlins, Wyoming.
3. Nothing contained in this Plan is intended to create any contractual rights or state law liberty interest in any person, party or organization. The terms of this Plan are intended to assure

Defendants' 2'' Proposed Remedial Plan- 05/05/03

5

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 6 of 21

the enforcement of federal constitutional rights for the members of the certified class of Plaintiffs, and only for those rights addressed in the Court's November 27, 2002, summary judgment order. C. The Investigations Major
I. WDOC will hire an investigator who will work out of the Central Office of WDOC and report directly to the Director. The WDOC investigator position is officially titled the Investigations Major.
2. The following time line applies to hiring the Investigations Major: a. Advertising for the position has been completed. Applications and resumes
have been received from sixty-seven (67) individuals. b. Preliminary review of all applications has been completed. c. Interviews of selected candidates have been completed. c. The position has been offered and accepted. d. The investigator will commence employment not later than June I, 2003.
3. The Investigations Major shall perform functions as set forth in the Investigations Policy. D. Incident Report Forms
I. The WDOC has revised the WSP Staff Report form to include the following language: "By signing this document, the undersigned certifies that the reported information is a complete, true and accurate report of all known pertinent facts, including, but not limited to the reporting officer's observations and role in the incident, action ofinmates/offenders and other employees in the course of the incident and how or why the incident occurred and whether a mistake or misconduct by an employee, including the undersigned, or any institutional deficiency, may have caused or contributed

Defendants' 2"' Proposed Remedial Plan- 05/05/03

6

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 7 of 21
to the incident." (Attached hereto as Remedial Plan Exhibit D.). The form contains a similar certification for the Shift Commander to indicate his or her review. The form also contains a signature line for the Warden to indicate his or her review.
2. Attached hereto as Remedial Plan Exhibit E is a copy ofthe General Incident Tracking Log. This form, or something substantially similar, will be used by the Investigations Major and WDOC Director to track inmate-on-inmate assaults. (The log includes a section to record the disposition and closure of each incident. That section describes the conclusions reached, including staff error, staff misconduct, or institutional deficiency, if any, and what corrective action, if any, was taken. The log records the nature of disciplinary action, policy or procedural changes, institutional modifications, and disciplinary action against inmates.)
3. A report from the General Incident Tracking Log process will be provided to the Joint Expert and Plaintiffs' legal counsel on a monthly basis. The Joint Expert and Plaintiffs' legal counsel may at any time, during regular business hours, inspect the records supporting the General Incident Tracking Log process. As set forth later in this Plan, certain records relating to inmate on inmate assaults will be provided by the Defendants to the Joint Expert and counsel for the Plaintiffs.
4. All records of the General Incident Tracking Log process will be maintained by the WDOC during the pendency of the Court's final decree. Following the termination of the Decree, records will be maintained by the WDOC pursuant to the State of Wyoming Records Retention Policy. E. Staff Discipline
I. Staff compliance with the policies and procedures of the WDOC concerning protection
Defendants' 2"' Proposed Remedial Plan- 05/05/03 7

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 8 of 21

of inmates from harm will be enforced by supervisors and managers through existing State of Wyoming disciplinary processes. See Policy and Procedure 1.0 12, Investigation ofInmate Physical Altercations or Assaults to Inmates at WDOCfacilities, and Director's Executive Order #03-003. (Attached here as Remedial Plan Exhibit F.)
2. The State of Wyoming Personnel Rules provide for a one year probationary period for new hires. WDOC will use the probationary period to evaluate whether new employees have acquired the skills and abilities of the positions they hold. WDOC may terminate probationary employees who fail to acquire or demonstrate their ability to perform their jobs, including enforcement ofWDOC policies concerning incident reporting and protection ofinmates from harm.
3. WDOC will use the progressive disciplinary process established in the State ofWyoming Personnel Rules to enforce the WDOC policies concerning incident reporting and protection of inmates from harm among permanent employees. Managers and supervisors must aggressively pursue the discipline of employees who fail to report staff errors, misconduct or institutional deficiencies.
4. Flagrant misconduct does not require the use of progressive discipline pursuant to the State of Wyoming Personnel Rul~s.
5. Nothing herein is intended to create a protected property right in any employee of the WDOC; nothing herein is intended to create in any person or entity the status of third party beneficiary. The rights, duties and obligations herein shall operate only between the parties to this litigation. The parties to this litigation include the class of all present and future inmates of WSP.
6. Individual personnel files are confidential pursuant to state law. On a monthly basis a

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8

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 9 of 21

report from the General Incident Tracking Log process will be provided to the Joint Expert and Plaintiffs' legal counsel, including information concerning staff discipline related to incidents of inmate harm. The Joint Expert may at any time, during regular business hours, inspect the records supporting the General Incident Tracking Log process. Personnel files are subject to disclosure to the Plaintiffs' legal counsel as may be necessary to enforce the provisions of this Defendants' Plan, but shall be subject to the terms of the Court's Protective Order.
7. All records of the General Incident Tracking Log process will be maintained by the WDOC during the pendency of the Court's final decree. Following the termination of the Decree, records will be maintained by the WDOC pursuant to the State of Wyoming Records Retention Policy.
8. Whenever any person having authority to recommend disciplinary action, recommends that a staff member be disciplined for a violation ofpolicies pertinent to this Defendants' Plan and the protection of inmates from harm, the Warden must within fourteen (14) days of receiving such recommendation, initiate a personnel action as he or she deems appropriate or provide a written explanation of the reasons why the recommendation of personnel action was not taken. The Warden's written explanation shall be provided to the Investigations Major, recorded in the Central Office General Incident Tracking Log.

II. INSTITUTIONAL CULTURE A. Assessment of the Culture
I. In April2002, the National Institute ofCorrections, Prison Division ("NIC") announced

Defendants' 2"' Proposed Remedial Plan- 05105/03

9

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 10 of 21
the availability of assistance to state departments of corrections to assess cultural issues affecting prison administration. In May 2002, WDOC applied for assistance at the Wyoming State Penitentiary for an assessment. NIC selected WSP for study in July 2002. In August 2002, the NIC initiated a cultural assessment of WSP through a contract with Criminal Justice Institute, Inc. ("CJI''), Middletown, Connecticut. CJI issued its assessment report to the WDOC on January 7, 2003.
2. The WDOC agrees to pursue this process to completion. The process is for Criminal Justice Institute, Inc., working with staff ofWSP and WDOC to develop and implement a plan to improve the culture at WSP. The WDOC shall provide a written explanation to the Joint Expert and Plaintiffs' legal counsel of the rejection of any significant recommendation by CJI in the Cultural Change Process.
3. "Culture" means the system of information made up of the ideas, assumptions, values, beliefs and norms connecting members of a group, organization or institution. The formal culture is the body of mission statements, written policies and rules of the organization.
4. Organizations frequently develop informal cultures made up ofunwritten notions, norms, expectations, and values which are unofficially, and perhaps unconsciously communicated from member to member. B. Training.
I. The Defendants will complete in-service training for all security staffby December 2003. The training will educate staff as to the rights of inmates to protection against harm, staffs responsibilities to carry out procedures designed to minimize the risk ofharm to inmates, and staffs
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Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 11 of 21
responsibilities to properly report and investigate incidents ofharm. The training will also focus on the duty to identify and report staff error or misconduct contributing to inmate harm from other inmates, and to follow through with disciplinary action or remedial training when indicated. Finally, specialized lesson plans will be developed and utilized in training ofsupervisory personnel to ensure proper supervision ofsubordinates who carry out duties related to protection of inmates from harm. The following specific topics will be included in the training curriculum:
a. Constitutional law governing inmates' rights to be protected from assaults by other inmates, including an analysis of the Summary Judgment Order in this case.
b. Wyoming Department ofCorrections and State Codes ofEthics, particularly as they relate to requirements of honesty and cooperation in investigations.
c. Wyoming Department of Corrections' Policy and Procedure #3.305 "Temporary Restriction Order"- provides that "an inmate shall be immediately placed on temporary restriction order (T.R.O.) status anytime staff is advised of or becomes aware of a potential threat of harm from another inmate(s)". T.R.O. housing segregates the inmate from other inmates who might harm him. (Attached hereto as Remedial Plan Exhibit G.)
d. Wyoming Department of Corrections' Policy and Procedure #3.304 "Protective Custody"- requires any staff who becomes aware of a threat to an inmate's safety to place the threatened inmate on T.R.O. status, segregating him from other inmates and thereby eliminating the immediate danger. It then requires an investigation and analysis of the threat and decisions providing long term solutions to alleviate the danger. (Attached hereto as Remedial Plan Exhibit H.)
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Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 12 of 21

e. Wyoming Department of Corrections' Policy and Procedure #1.012,

Investigation ofInmate Physical Altercations or Assaults to Inmates at WDOCfacilities- requires

reporting and logging at both the facility and WDOC Central Office ofall inmate on inmate assaults.

The policy requires all staffto report any observations ofstaffmisconduct or policy non-compliance

associated with such incidents.

f.

Policy and Procedure #1.012, Investigation ofInmate Physical Altercations

orAssaults to Inmates at WDOCfacilities -mandates "Initial Inquiries" by the Investigations Major

in all cases of inmate on inmate physical altercations or assaults in compliance with Director's

Executive Order 02-003, paragraph 3 D (Remedial Plan Exhibit B). The policy requires Outside

Investigation in those cases involving a non-spontaneous assault. Each investigation is required to

include analysis of potential staff error, misconduct or policy non-compliance in relation to the

incident, and to make recommendations for remedial training, staff discipline or other corrective

measures.

g. The policy requires logging, filing and tracking of initial inquiry reports and

any corrective actions.

2. Training will include, where appropriate, interview techniques and record keeping when

dealing with inmate threats and inmate-on-inmate assaults.

3. Defendants will maintain a record of training provided. Training records will include

completion by employee, course, date, and lesson plan. The WSP Warden will report monthly to

the ChiefofOperations and Director ofthe WDOC on training presented and who received training.

4. The Director ofWDOC will copy the Joint Expert and Plaintiffs' legal counsel with the

Defendants' 2'' Proposed Remedial Plan- 05/05/03 12

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 13 of 21
Monthly Training Report. The Joint Expert and Plaintiffs' legal counsel may at any time, during regular business hours, inspect the records supporting the Monthly Training Report.
5, All records of training will be maintained by the WDOC during the pendency of the Court's final decree. (Training records will be maintained on a permanent basis for current employees and maintained for others as required by the State of Wyoming Records Retention Policy.)
6. Inmates of the Wyoming State Penitentiary will be provided general information by the Defendants concerning the rights ofinmates to be reasonably safe from harm by other inmates. This information will be in the form of the language of the Court from pages 10-13 of the Summary Judgment Order entered in this case. Inmates will be provided general information about the policies of the WDOC which concern reporting and investigation of incidents of inmate on inmate assault, the policies on Temporary Restrictive Order, Temporary Protective Custody and Protective Custody. The information referred to in this paragraph will be made available in the form of a pamphlet to be distributed to inmates, or any other means designed by the WDOC reasonably calculated to inform inmates of the WSP. The pamphlet or other process referred to herein for informing inmates shall include the name and address for Stephen L. Pevar, and state that inmates with questions or concerns about inmate protection from harm may contact Mr. Pevar. Nothing in this Plan shall excuse or waive any requirement that inmates exhaust administrative remedies, including the grievance process.
Defendants' 2"' Proposed Remedial Plan - 05/05/03 13

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 14 of 21
III. COMPLIANCE A. Joint Expert
1. Compliance with the Plan and the Court's final decree will be necessary. A Joint Expert can assist with tracking and achieving compliance. The parties jointly recommend the Court appoint a Joint Expert.
2. The parties jointly recommend William C. Collins, Attorney at Law, as the Joint Expert. Mr. Collins' contact information is as follows: P.O. Box 2316, Olympia, Washington 98507, (360) 754-9205, FAX (360) 754-0806.
3. The Joint Expert will have only such access to the reports and records of the Department of Corrections as are necessary to assess the Defendants' compliance with this Plan and the Court's final decree in this matter.
4. The Joint Expert will not conduct ex parte communications with any person, party or legal representative in this litigation, except as expressly provided in this Plan. Any written correspondence directed to the Joint Expert by any person other than the Court or the legal counsel for the parties will be returned to the sender unopened and unread.
5. The Joint Expert will oversee the Defendants' compliance with the Court's final decree ordering a Remedial Plan.
6. Following the Court's entry of the final decree incorporating this Defendants' Proposed Remedial Plan, and as soon as can be conveniently arranged, the Joint Expert shall visit the Wyoming State Penitentiary. During this visit the Joint Expert may tour the facility, meet the top administrators for the WDOC and WSP and confer with the legal counsel for the Plaintiffs and
Defendants' 2"' Proposed Remedial Plan- 05/05/03 14

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 15 of 21
Defendants. 7. The Joint Expert shall conduct at least four (4) on site inspections ofthe WSP records and
facilities as relate to issues of protection of inmates from harm at WSP. The Joint Expert shall conduct an on site inspection approximately every six months following the entry of the Court's decree.
8. During each on site inspection the Joint Expert may, in his discretion, meet in private with any inmate. The Joint Expert shall explain to the inmate that their conversations will not be held in confidence and that he may be required to disclose the content oftheir discussion with the legal representatives of the parties, or to disclose the information in a written report. The Joint Expert may meet with any member of the WDOC or WSP staff, but may need to do so outside the regular work shift of the staff member. Any staff member meeting with the Joint Expert shall be given the same advisement as inmates, that their discussions with the Joint Expert are not confidential and may be disclosed to the legal representatives ofthe parties. Ifrequested by the legal representatives of the parties the Joint Expert shall disclose orally or in writing the substance of any private discussions conducted with any inmate or staff member.
9. Within thirty (30) days of each of the first three inspections, the Joint Expert shall issue a written report to the legal representatives of the Plaintiffs and Defendants concerning the Defendants' compliance with the Remedial Plan and the Court's decree.
10. Not less than thirty (30) days before the second (2"d) anniversary of the Court's decree, the Joint Expert shall file a written report with the Court and serve copies upon the legal representatives ofthe Plaintiffs and Defendants. The report shall include findings offact concerning
Defendants' 2"' Proposed Remedial Plan- 05/05/03 15

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 16 of 21
the Defendants' substantial compliance with the decree. II. The Joint Expert's reports are not binding on the parties or the Court, and either party
may make any objections to the reports, or any portion of the reports, including proposed findings, conclusions or recommendations, in any subsequent proceedings before the Court.
12. The Defendants shall bear the costs and expenses of the Joint Expert. The Joint Expert agrees to serve for an hourly fee of$125.00 for hours actually worked. The Joint Expert shall be compensated at the rate of $62.50 for time in transit during which work is not conducted. Travel days shall be presumed to be an eight (8) hour day unless actual work is performed beyond the eight hours. The Joint Expert shall not be reimbursed for ordinary expenses of overhead, including copying, communications and office expenses. The Joint Expert may be reimbursed for extraordinary expenses of overhead, including computer assisted legal research. The Joint Expert shall be reimbursed actual expenses for necessary travel. Airfare shall be reimbursed at the available coach rate for travel. Defendants shall pay those costs and expenses to the Joint Expert upon submission of state vouchers, unless objected to by Defendants and disapproved by the Court. Payments shall be made pursuant to usual state accounting procedures. B. Reporting & Confidentiality
1. The Joint Expert and Plaintiffs' legal counsel will receive monthly copies from the WDOC of the General Incident Tracking Log. The Log will identify and track incidents of inmate on inmate physical altercations or assaults, the timing and nature of reporting and investigation, levels ofreview and the disposition made, including staffdiscipline (see General Incident Tracking Log, Remedial Plan Exhibit E). The Joint Expert or Plaintiffs' legal counsel may at any time, during
Defendants' 2"' Proposed Remedial Plan- 05/05/03 16

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 17 of 21
regular business hours, inspect the records supporting the Log entries. 2. On a monthly basis, the WDOC shall provide the Joint Expert and Plaintiffs' legal
counsel, with a copy of all investigation reports generated during the preceding month under Policy and Procedure 1.0 12, including the reports ofthe Investigations Major or any outside investigations ofnon-spontaneous assaults, reports oftheWarden, Prisons Administrator or Director, together with copies of the supporting documentation for each new incident which has been investigated and reported on during the period, unless previously provided pursuant to this Plan. For purposes ofthis requirement, "supporting documentation" includes, among other things, all documents that bear upon the question whether staff knew or reasonably should have known that the inmate was at risk of assault and whether staff took sufficient measures to abate that risk.
3. Information appearing in StaffReports, Incident Reports and Training Records, and other documents agreed to be provided or made available to the Joint Expert or Plaintiffs' legal counsel may be confidential or privileged under state law, due to considerations oflnstitutional Security, Personal Privacy and Confidentiality. The parties agree that this information will be made available on condition ofand subject to the terms and conditions ofa Protective Order ofthe Court in the form of Remedial Plan Exhibit I attached hereto and incorporated by this reference.
4. It is further understood and agreed that the information and documentation produced or made available to the Joint Expert or Plaintiffs' legal counsel shall not be the basis of or admissible in any proceeding outside the present litigation, unless obtained by the Plaintiffs independent ofany production or inspection pursuant to this Plan. Defendants may use the information or documentation in any employment, personnel or other civil litigation.
Defendants' 2"' Proposed Remedial Plan- 05/05/03 17

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 18 of 21
C. WDOC Policy Enforcement 1. Staff compliance with WDOC Policy and Procedure will be monitored through the
Incident and Staff Report process, and the General Incident Tracking Log, by the Warden, Investigations Major, and the Director.
2. The Staff Report form and General Incident Tracking Log track the assessment of staff error, policy compliance or other institutional deficiencies, and the follow up to those conclusions, including staff discipline.
4. Compliance will be monitored through the process of reporting to the Joint Expert and Plaintiffs' legal counsel, with the opportunity to inspect and verify the underlying records.
IV. TERMINATION OF DECREE Termination of this Defendants' Plan and the Court's decree shall be determined pursuant to the Prison Litigation Reform Act. 18 U.S.C. § 3626(b) and such other rule or statute as shall be found applicable.
PRAYER The Defendants respectfully request the Court to: I. Enter a final decree incorporating this Defendants' Second Proposed Remedial Plan into the Court's final order, 2. Appoint a Joint Expert as provided in this Plan, fix the compensation ofthe Joint Expert, and Defendants' 2"' Proposed Remedial Plan- 05/05/03 18

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 19 of 21

3. Enter a Protective Order as provided with this Plan.

~y Respectfully submitted this

of May, 2003.

ohn W. Renn isen Deputy Attorn y General Herschler Buildmg, 1st Floor West Cheyenne, WY 82002 (307) 777-7242

Defendants' 2"' Proposed Remedial Plan - 05105103 19

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 20 of 21
CERTIFICATE OF SERVICE I do hereby certify that I have caused a true and correct copy ofthe above DEFENDANTS' SECOND PROPOSED REMEDIAL PLAN to be sent by First Class, postage prepaid, United States mail, on this ]~ day of May, 2003, addressed to the following individuals: Stephen L. Pevar ACLUF 32 Grand Street Hartford, CT 061 06 Timothy C. Kingston Graves, Miller & Kingston 408 West 23rd Street Cheyenne, WY 82001 Shirley Kingston 418 South 12'h Street Laramie, WY 82070
Defendants' 2"' Proposed Remedial Plan- 05/05103 20

Case 2:02-cv-00033-CAB Document 105 Filed 05/07/03 Page 21 of 21
Attachments/Exhibits too
voluminous to scan

 
 Case 2:02-cv-00033-CAB Document 310 Filed 09/17/07 Page 1 of 4
OR\G\NAL

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

FILED U.S. DISTRICT COURT DISTRICT OF WYOMING
SEP 1 7 2007

BRAD SKINNER, on his ovm behalf.

)

Stephan Harris, Clerk Cheyenne

and on behalf of all other persons

)

similarly situated,

)

)

Plaintiffs,

)

) Civ. No. 02-CV-033 B

vs.

)

)

ROBERT LAMPERT, Director of the Wyoming )

Department of Corrections, and MICHAEL

)

MURPHY, Warden of the Wyoming State

)

Penitentiary, in their official capacities,

)

)

Defendants.

)

ORDER TERMINATING PROSPECTIVE RELIEF

FINDINGS OF FACT 1. On February 15, 2002, Plaintiff, Brad Skinner filed a Prisoner Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, claiming violation, by Defendants, of the Eighth Amendment based on Defendants' failure to protect inmates ofWyoming State Penitentiary (WSP) from assault by other inmates.

Page 1 of4

Case 2:02-cv-00033-CAB Document 310 Filed 09/17/07 Page 2 of 4
2. On August 5, 2002, the Court certified a Plaintiff class of inmates to include all present and future inmates ofWSP. Skinner v. Uphoff, 209 F.R.D. 484 (D.Wyo. 2002)
3. On November 27, 2002, the Court granted Plaintiffs Motion for Summary Judgment. Skinner v. Uphoff, 234 F.Supp.2d 1208 (D. Wyo. 2002).
4. On October 10, 2003, the Court entered its Final Decree Adopting and Incorporating Defendants' Second Proposed Remedial Plan, with Modifications, and Granting in Part and Denying in Part Plaintiffs Objections to the Plan (Final Decree).
5. On August 8, 2006, the Court entered its Order Denying Defendants' Motion for Termination, Modifying Prospective Relief, and Granting in Part and Denying in Part Plaintiffs' Six Contempt Motions. Skinnerv. Lampert,457 F.Supp.2d 1269(D. Wyo. 2006).
6. More than one year has passed since the entry of the Order Denying Defendants' Motion for Termination.
7. On August 16, 2007, Defendants filed Defendants' Second Motion for Termination of Prospective Relief.
8. On September 10,2007, Plaintiffs filed a Notice of Non-Objection to Defendants' Second Motion for Termination.
9. Defendants have taken various measures to remedy the two constitutional violations which were the subject of the Court's Order Denying Termination.
Page 2 of4

Case 2:02-cv-00033-CAB Document 310 Filed 09/17/07 Page 3 of 4
10. The Court is unaware of any current and ongoing violations by Defendants of Plaintiffs' Eighth Amendment right to reasonable protection from harm from assault by other inmates.
CONCLUSIONS OF LAW I. Pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626(b)(l)(A)(ii), Defendants were entitled to file their Second Motion for Termination on or after August 8, 2007. 2. The Final Decree and the Order Denying Termination and Modifying Prospective Relief, are orders granting prospective relief pursuant to the Prison Litigation Reform Act,
18 u.s.c. § 3626(g)(7).
3. The prospective relief ordered by the Court no longer remains necessary to correct current and ongoing violations of the federal right which was the subject of this suit.
4. The Plaintiffs do not oppose the termination ofthe prospective relief previously ordered in this case.
5. Defendants' Second Motion for Termination should be granted.
Page 3 of4

Case 2:02-cv-00033-CAB Document 310 Filed 09/17/07 Page 4 of 4
THEREFORE, IT IS HEREBY ORDERED that the prospective relief previously ordered by the Court in the above-captioned matter is hereby terminated.
DATED this _JJ_t<.-t day of September, 2007.
CLARENCE A. BRIMMER UNITED STATES DISTRICT COURT JUDGE
Page 4 of4

 
 Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 1 of 24
FILED U.S. DISTRICT COURT DISTRICT OF WYOMING
StepShEa~nJH-a7rr3is0, ~C~r,,km. Cheyenne

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf, and on behalf of all other persons similarly situated,
Plaintiffs,
VS,
JUDITH UPHOFF; VANCE EVERETT; JAMES HEWITT; DAVID EBELL; all in their individual and official capacities, ROBERT ORTEGA and SCOTT ABBOTT, in their official capacities,
Defendants.

Case No. 02-CV-033-B

ORDER ON VARIOUS MOTIONS
This matter is before the Court on (1) Plaintiffs' Motion to Modify the Remedial Plan; (2) Plaintiffs' Motion to Disseminate Redacted Investigative Reports; (3) Plaintiffs' Objection to Defendants' Proposed Changes to Policy 1. 012; (4) Defendants' Motion to Modify the Order for Protection of Documents; and (5) Motion for Relief from Judgment. After considering the motions, having reviewed the materials on file, having heard oral argument, and being fully advised in the premises, the Court FINDS and ORDERS

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 2 of 24
as follows:
BACKGROUND 1
Plaintiff Skinner originally filed this suit on February 15, 2002, asserting claims against Defendants individually and on behalf of other similarly situated individuals. Individually, Plaintiff Skinner sought compensatory and punitive damages, pursuant to 42 U.S. C. § 1983, for violations of his Eighth and Fourteenth amendment rights. Plaintiff also sought on his own behalf, and on behalf of all others similarly situated, injunctive relief preventing Defendants from failing to take all necessary and proper steps to safeguard Plaintiff and other Wyoming State Penitentiary ( "WSP") inmates from unprovoked assaults by other inmates.
On November 27, 2002, this Court granted injunctive and declaratory relief on Plaintiffs' class action claim. 2 See Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1218 (D. Wyo. 2002) (order granting Plaintiffs' motion for summary judgment). This Court
For a complete recitation of the facts that precipitated this suit, see Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1210-12 (D. Wyo. 2002).
2
The parties eventually reached a settlement regarding Skinner's individual claims.
2

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 3 of 24
found that Defendants had failed to adequately train and supervise their employees, failed to develop an effective internal review process for the reporting of policy violations and failed to properly discipline employees, leading to risks for inmate safety. Consequently, in an effort to alleviate the problems at the WSP, this Court ordered the parties to submit a proposed Remedial Plan which would address such shortcomings. On October 7, 2003, the Court approved the proposed Remedial Plan with minor changes.
As part of the Remedial Plan, Defendants were required to periodically provide certain documents and information to the Joint Expert and Plaintiffs' counsel. However, some of these documents contained information considered to be confidential pursuant to the Wyoming Public Records Act, Wyo. Stat. Ann. §§ 16-4-20 through 164-205, the State Self Insurance Act, Wyo. Stat. Ann. §§ 1-41-101 through 1-41-110, and the Wyoming Criminal History Record Act, Wyo. Stat. Ann. §§ 7-19-101 through 7-19-602, as well as other state and federal confidentiality laws. Thus, upon Defendants' motion to protect these documents, the Court promulgated a protective order, entitled Order for Protection of Documents, intending to prevent the dissemination of such confidential information.
Another concomitant of the Remedial Plan was Wyoming
3

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 4 of 24
Department of Corrections' Policy 1.012 (hereinafter referred to as "Policy 1. 012" or "the Policy"), which set forth the agency's policy governing the investigation of inmate on inmate assaults. Specifically, the Policy provided for the procedure to be used in the investigation of suspected cases of inmate on inmate assaults, the hiring of a professional investigator within the Wyoming Department of Corrections ("WDOC"), the utilization of an outside investigator when the assaults appear to be premeditated, and discipline measures for staff members who violate any of the policies concerning prisoner safety. The Policy also established time lines for investigating incidents at the prison and completing reports on such incidents.
Both parties agree that the Remedial Plan has improved prison conditions immensely since its implementation in 2003. However, both parties contend that slight modifications to the current policies and procedures would further improve the effectiveness of the Remedial Plan. Specifically, in four separate motions, the parties have asked the Court to review and make slight modifications to the Remedial Plan, Policy 1.012, and the Court's Order for Protection of Documents.
In a separate motion, Mr. Parkhurst, on behalf of himself and
4

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 5 of 24
nine other inmates, seeks relief from the summary judgment order entered by this Court on November 27, 2002. Mr. Parkhurst and his associates (hereinafter referred to as "Parkhurst") contend that the judgment does not adequately address the overcrowding problem at the WSP. Parkhurst also requests that the Court recuse itself and appoint new counsel to replace Mr. Pevar, attorney for Plaintiffs in this case.
DISCUSSION As noted above, there are currently five motions pending before the Court. Specifically, they are (1) Plaintiffs' Motion to Modify the Remedial Plan; (2) Plaintiffs' Motion to Disseminate Redacted Investigative Reports; (3) Plaintiffs' Objection to Defendants' Proposed Changes to Policy 1. 012; (4) Defendants' Motion to Modify the Order for Protection of Documents; and (5) Motion for Relief from Judgment. These five motions can be discussed in four sections as two of the motions pertain to the same issue. Therefore, the Court will first discuss the two motions regarding protection of confidential information and dissemination of documents. Next, the Court will address the Plaintiff's Objection to Defendants' Proposed Changes to Policy 1.012. Third, the Court will analyze Plaintiffs' Motion to Modify
5

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 6 of 24
the Remedial Plan. Finally, the Court will cover the Motion for Relief from Judgment. I. Protection of Confidential Information and Dissemination of
Documents As previously stated, the Remedial Plan requires Defendants to provide all investigation reports, as well as supporting documentation, to Plaintiffs. However, some of the information contained within these documents is confidential. Thus, the Court issued a protective order intending to prevent the dissemination of such confidential data. See Order for Protection of Documents. In particular, the Order protects personal medical records, personnel records of any WDOC employee, and the criminal history record of any person. Id. at 2. The Order provides that "[n]o person who obtains access to any of these confidential documents, records, or reports produced or inspected pursuant to the Remedial Plan may copy, distribute or disseminate the document or contents thereof, to any inmate of the Wyoming State Penitentiary or of the Wyoming Department of Corrections." Id. at 2-3. The Order also states that Plaintiffs' legal counsel may not provide confidential reports to "any other person, group of persons or organization, without the written order of the Court." Id. at 3. Based upon this Order, the Defendants began producing redacted
6

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 7 of 24

documents to Plaintiffs' counsel and the Joint Expert. Plaintiffs'

counsel, however, felt that the redaction process made the

documents unintelligible. Based on this complaint, Defendants

began producing unredacted and partially redacted documents to the

Joint Expert and Plaintiffs' counsel. Defendants distributed these

documents on the assumption that they would never be given to an

inmate or released to the press.

Both parties now contend that the current system for producing

documents and, hence, the Order for Protection of Documents, are

not working as intended. Plaintiffs argue that they should be able

to disseminate non-confidential documents to the inmates and the

public at large. Plaintiffs believe that the public, as well as

the inmates, have a right to know about the functioning of our

state government. Defendants claim that an inmate should only be

allowed to view those documents which contain the inmate's own

statements to investigators.

Defendants feel that the

dissemination of documents, even redacted ones, to the inmates will

decrease inmate safety at the WSP. Defendants also argue that

release of documents to the public may violate several privacy and

confidentiality laws. Additionally, Defendants request that the

Court allow them to redact the documents now possessed by

7

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 8 of 24
Plaintiffs' counsel should the Court decide to allow publication of these documents. For the reasons stated below, the Court agrees with Plaintiffs that non-confidential information should be available to the inmates and public. However, the Court also agrees with Defendants that certain information should not be published.
First of all, as just stated, the Court agrees with Plaintiffs that the inmates are entitled to non-confidential information concerning the conditions of their confinement. The Court is also of the opinion that the public has a right, and even a responsibility, to review the investigative reports. See Allsop v. Cheyenne Newspapers, Inc., 39 P.3d 1092, 1096 (Wyo. 2002) ("[T]he Federal and Wyoming constitutions guarantee a person's right to access public records, and absent a compelling State interest, the State may not exclude an entire class of records from public inspection.") The public should be allowed to monitor the activities and performance of their own government and use this information to implement change if needed. In other words, the public's review should help to deter substandard performance at the WSP. See id. at 1095 ("Confrontation has a salutary effect and causes those in positions of public responsibility to practice
8

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 9 of 24
thoughtfulness and wisdom in their utterances and carefully weigh their decisions.").
However, there is a compelling state interest in protecting confidential and privileged information from public dissemination and the Court is fully cognizant of Defendants' concerns regarding the distribution and dissemination of such data. State and federal laws clearly prevent the publication of materials relating to medical records, personnel records, and criminal history records. See, e.g., Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-2; Wyoming Public Records Act, Wyo. Stat. Ann. §§ 16-4-20 through 16-4-205; State Self Insurance Act, Wyo. Stat. Ann. §§ 1-41-101 through 1-41-110; and the Wyoming Criminal History Record Act, Wyo. Stat. Ann. §§ 7-19-101 through 7-19-602. Thus, information relating to these matters should not be published to either the inmates nor the public at large. This does not mean, however, that non-confidential materials should also be protected. The protection of confidential or privileged information should not create a blanket suppression of all information.
Accordingly, the Court has formulated the following standard, or system, to govern the production, dissemination, and distribution of documents by Defendants and Plaintiffs' counsel.
9

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 10 of 24
From this date forward, Defendants shall redact all confidential and privileged information from documents which Plaintiffs' counsel is entitled to review or receive. Defendants shall only redact information which is confidential or privileged pursuant to state and federal law. Defendants may also redact any information which, under the reasonable person standard, would identify any inmates who have cooperated, are cooperating, or will cooperate with prison officials. This provision of the system is necessary to protect the safety of the cooperating inmates and further the investigation process. Defendants will not, however, redact information simply because it reflects negatively upon the WDOC or the WSP.
After Defendants provide the redacted materials to Plaintiffs' counsel, he will be allowed to distribute and disseminate these materials to the inmates, the public, and the press as he deems fit. Plaintiffs' counsel will not have a duty to carefully scrutinize these documents for protected information before he disseminates them, that duty is upon the Defendants. However, the Court is confident that should Plaintiffs' counsel become aware of such information contained in a supposedly redacted document, he will notify Defendants and allow them the opportunity to redact such information. Furthermore, if at any time Defendants agree to
10

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 11 of 24
provide Plaintiffs' counsel with unredacted documents, he will refrain from disseminating or distributing them to any member of the public or to any inmate. Such a distribution could violate state or federal law and endanger the lives of the inmates.
In regards to the unredacted documents now possessed by Plaintiffs' counsel, the Court FINDS that Plaintiffs' counsel should return such documents to Defendants and allow them to redact the documents before he disseminates them any further. This is the only fair resolution of this problem. Defendants provided these unredacted or partially redacted documents upon the assumption that they would not be viewed by anyone except the Joint Expert and Plaintiffs' counsel. This, of course, would not be true if Plaintiffs' counsel provides them to the public. Thus, redaction is needed.
Therefore, based upon the foregoing discussion, Plaintiffs' Motion to Disseminate Redacted Investigative Reports is GRANTED and Defendants' Motion to Modify the Order for Protections of Documents is DENIED. II. Plaintiffs' Objection to Defendants' Proposed Changes to
Policy 1.012 Policy 1.012 is the Department of Corrections' policy governing the investigation of inmate on inmate assaults. This
11

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 12 of 24
policy is an integral part of the Remedial Plan as it establishes the process for investigating inmate on inmate assaults and provides deadlines for each step of the process. Specifically, Policy 1.012 now provides, in pertinent part, as follows:
IV. Procedure
* * * * B. Scope of Initial Inquiry
The Investigations Major, on receipt of information of the occurrence of an inmate on inmate assault shall conduct and/or coordinate an initial inquiry.
* * * *
4. The Investigations Major shall file a written report of each initial inquiry with the Director of WDOC within thirty (30) days following receipt of notification of the incident.
C. Determination of spontaneous assaults In the initial report, the Investigations Major shall make a determination of whether or not the incident constitutes a spontaneous assault or a premeditated assault.
D. Referral to Outside Investigator Upon a determination that an incident at the Wyoming State Penitentiary (WSP) constitutes a premeditated assault, the Investigations Major shall, within five (5) working days, refer the investigation to an outside investigator for investigations pursuant to this policy.
12

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 13 of 24

E. Scope of Outside Investigation

* * * *

2. The outside investigator shall submit a

report including a synopsis of the

investigative methodology, findings of

fact, conclusions regarding staff error

or policy violations or institutional

deficiencies causing or contributing to

the incident, and recommendation for

corrective actions including personnel

action, remedial training, or policy and

procedure revisions.

The outside

investigator's review shall address the

questions outlined in paragraph IV.B.1.a

through IV.B.1.i of this policy.

The report shall be completed within two (2) weeks of referral of the investigation to the outside investigator and shall be submitted to the Director. The outside investigator may be granted an additional two (2) week period if the depth of investigation warrants such extension.

* * * *
F. Implementation of Corrective Action

1. Within ten (10) working days of receipt

of

Inquiry Report

(from the

Investigations Major for incidents

involving spontaneous assaults or from

the outside investigator for incidents

involving premeditated assaults) that

includes recommendations for corrective

action, the Director shall refer the

Inquiry Report to the applicable warden

with a directive to determine what

corrective actions are to be taken,

13

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 14 of 24

including any indicated personnel action,

remedial training or recommendations for

policy and procedure revisions.

If

corrective

actions

include

recommendations for additions or

revisions to training, the Warden will

immediately

submit

his/her

recommendations to the Department's Staff

Training Administrator to address

identified training needs.

2. The Warden and/or Staff Training Administrator shall submit to the Director, within ten (10) working days of receipt of the directive/recommendation, a plan to carry out any corrective actions, including personnel action or procedural revisions.

3. * * * *

Corrective action recommended by the outside investigator implemented pursuant to this policy shall be initiated no later than one (1) month from receipt of the outside investigator's Inquiry Report.

Defendants' Response to Plaintiffs' Objection to Defendants'

Proposed Changes to Policy 1.012 at Exhibit A. 3

3 In their Objection to Defendants' Proposed Changes to Policy 1.012, Plaintiffs indicate that the current version of the Policy is attached to the Remedial Plan. The Court, however, is under the impression that this particular version was superceded and amended in February of 2004 by the version attached to Defendants' Response to Plaintiffs' Objection to Defendants' Proposed Changes to Policy 1.012. Although the versions are similar in most respects, the new version does give the Investigations Major five (5) working days, rather than three
14

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 15 of 24

Defendants now contend that the above-cited deadlines are

unworkable and unrealistic.

Defendants claim that the

investigation processes are taking much longer than first

anticipated. Thus, Defendants wish to amend Policy 1. 012 by

extending the deadlines therein. Specifically, Defendants would

extend the deadlines in the following manner: ( 1) the

Investigations Major would have forty-five (45) days to file a

written report instead of thirty (30) days; (2) the Investigations

Major would have ten (10) working days, rather than five (5), to

refer investigations to an outside investigator; (3) the outside

investigator would have thirty (30) days to complete his report as

opposed to fourteen (14); (4) the outside investigator could apply

for a thirty (30) day extension, rather than an extra two (2)

weeks; (5) the Warden and/or Staff Training Administrator would be

given five (5) additional working days, for a total of fifteen

(15), to submit a plan of corrective actions to the Director; and

(6) corrective action recommended by the outside investigator would

not have to be implemented for forty-five (45) calendar days, as

(3), to refer premeditated assault investigations to outside investigators. Thus, the Court is working under the assumption that the five (5) day period applies. Were it only three (3) days, the Court would extend that deadline period to five (5) days.
15

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 16 of 24
opposed to one (1) month.
According to the Remedial Plan, Defendants can modify the
Policy as long as they adhere to the procedures for doing so.
Those procedures, which are set forth on page five of the Remedial
Plan, provide as follows:
From time to time, during the period of the Court's final decree, it may be necessary to adjust the Investigations Policy. The WDOC agrees not to modify, amend or delete the Investigations Policy until fortyfive (45) days notice in writing has been gvien to the Plaintiffs' legal counsel and the Joint Expert. If the Plaintiffs object to a proposed amendment, modification or deletion of the Investigations Policy, the Plaintiffs and the WDOC shall make a good faith effort to confer with each other and reach an agreement concerning the proposed change. If the parties are unable to reach an agreement, the Plaintiffs may apply to the Court, at any time during the forty-five days, for an order to prevent the modification, amendment or deletion of the Investigations Policy by the Defendants, on the grounds that the policy, as modified, amended or deleted poses a substantial risk of exposing the Plaintiffs to increased risk of harm from inmate on inmate assault. If the Plaintiffs have filed their objection with the Court, the amendment, modification, or deletion may not be implemented by the Defendants until the Court has ruled upon the merits of Plaintiffs' objection.
Defendants' Second Proposed Remedial Plan at 5.
Plaintiffs oppose the proposed changes, as evidenced by their
pleading entitled Plaintiffs' Objection to Defendants' Proposed
Changes to Policy 1. 012. Plaintiffs argue that a pro forma
extension of the deadlines is not needed. Rather, Plaintiffs
16

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 17 of 24

insist that the necessity for extensions should be determined on a

case by case basis. Thus, based on Plaintiffs' objections, the

Defendants have not been able to implement their desired changes to

Policy 1.012. See id. Plaintiffs' objections have also laid the

decision at the Court's feet. See id. As a result, it is now

incumbent upon the Court to render a decision on the merits of the

Plaintiffs' objections.

As just noted, the Plaintiffs contend that the deadlines in

the Policy should not be extended in every case as a matter of

course. Plaintiffs claim that such extensions will expose the

inmates to an increased risk of harm

the same risks that

precipitated this suit in the first place. The Court agrees with

these contentions for the most part. The Court does, however, part

ways with Plaintiffs' argument on a few issues.

As it currently stands, the investigation and reporting

process for premeditated assaults can take up to 113 days, or about

sixteen (16) weeks. Defendants' proposed changes would increase

this process period by over ten (10) weeks. Defendants' proposed

changes would also increase the process for spontaneous assaults,

or those investigations done solely by internal investigators, by

at least twenty (20) days. These extensions seem rather large

17

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 18 of 24
considering the fact that ninety percent (90%) of the incident investigations conducted meet the current time deadlines. It defies the Court's common sense to grant a ten (10) week blanket extension in all cases when very few cases actually need the extensions.
Furthermore, Plaintiffs' counsel is correct when he states that the extensions, generally speaking, will work a detriment to the purpose of the Remedial Plan. These extensions will delay the implementation of important corrective actions which are intended to prevent and eliminate the dangerous conditions that led to the filing of this suit. Each additional day requested by Defendants to complete the investigation process increases the risk of injury to the inmates at WSP.
That being said, the Court is also aware that incidents that are referred to the outside investigators are more complicated and have a tendency to take much longer. It appears to the Court that these are the cases where Defendants have troubles meeting the deadlines of Policy 1.012. The investigation files in these cases can take days, if not weeks, to read and such time does not include that necessary to complete an incident report and recommendation. As a result, the two week time period to complete the outside
18

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 19 of 24
investigation report is frequently inadequate. Often, the two week extension is of no help. Thus, the Court believes that a time extension for the outside investigator's report is warranted.
Based upon the foregoing, the Court FINDS that the Defendants should not be allowed to amend the deadlines in Policy 1.012 as proposed in May of 2005, except that the outside investigator should be given more time to conduct his investigation and issue a report. Specifically, the outside investigator should be given thirty (30) days to conduct his investigation and issue his report. If that amount of time is insufficient, the Warden can grant him an additional fourteen (14) days to finish the report. This amendment will only extend the current reporting periods by approximately two (2) weeks and, therefore, should not unduly endanger the inmates' safety.
This time extension applicable to premeditated assault cases does not mean, however, that every case, whether premeditated or spontaneous, will be able to be completed within the current allotted time period. Therefore, there must be a procedure whereby Defendants can acquire additional time to complete a report if they need such time. The process will be as follows. If Defendants determine that they will not be able to meet a deadline and can
19

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 20 of 24

show good cause therefore, the Defendants will notify Plaintiffs'

counsel that they need an extension and supply the reasons

necessitating such extension.

Defendants will also inform

Plaintiffs' counsel of the amount of extra time needed. If

Plaintiffs' counsel does not object, then the extension will be

deemed to be necessary and granted. If Plaintiffs' counsel does

object and the parties cannot reach an agreement regarding the

extension, the Plaintiffs' can file an objection with this Court,

which will then rule on the merits of the objection.

Therefore, based upon the foregoing, Plaintiffs' Objection to

Defendants' Proposed Changes to Policy 1.012 is SUSTAINED in part

and OVERRULED in part.

III. Plaintiffs' Motion to Modify the Remedial Plan

According to the Remedial Plan, the month after an investigation report is due in accordance with Policy 1.012 it must be provided to the Joint Expert and Plaintiffs' legal counsel. See Defendants' Second Proposed Remedial Plan at 17. Plaintiffs have filed the Motion to Modify the Remedial Plan because Defendants, mostly due to causes not of their own making, have not been adhering to this deadline. Essentially, this motion is a corollary to the previous discussion as the Defendants have not met the

20

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 21 of 24
Remedial Plan deadline because they could not meet the deadlines in Policy 1.012.
In their motion, Plaintiffs simply request that they be notified when Defendants are going to miss a deadline. Plaintiffs do not request sanctions or other reprimand by the Court. The Court does not find this to be an unreasonable request. Plaintiffs should be notified if Defendants expect to miss a deadline. However, this issue was dispensed with in the previous section when the Court directed Defendants to notify Plaintiffs' counsel if they expect to miss a deadline and desire an extension. Thus, the Remedial Plan does not need to contain such notification language.
Therefore, in accordance with the foregoing, Plaintiffs' Motion to Modify the Remedial Plan is DENIED as moot. IV. Motion for Relief from Judgment
As noted above, Parkhurst filed this motion requesting that he and nine other inmates at WSP be given relief from the judgment of the Court dated November 27, 2002. Specifically, Parkhurst contends that the judgment in favor of Plaintiffs in this case did not adequately address the overcrowding problem at WSP. Thus, Parkhurst is seeking relief from judgment so that he may address this issue. As support for his argument, Parkhurst claims that he
21

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 22 of 24
and the other class members at WSP were not given adequate notice regarding this suit. He contends that due to this lack of notice he and the other prisoners should not be bound by the order of this Court.
While the Court understands Parkhurst's frustration with the overcrowding problem at WSP, the Court does not believe that Parkhurst's motion is the proper method to raise such concerns. Overcrowding is not, and never has been, an issue in this case. As such, Parkhurst's motion is irrelevant to this suit.
Furthermore, even if it were relevant, the motion is not supported by law. Simply put, the law did not require that all inmates at WSP be given notice of all happenings in this suit. According to Federal Rule of Civil Procedure 23 (c) (2) (A), class members in a class action suit initiated pursuant to Rule 23(b) (2) are not entitled to notice. Fed. R. Civ. P. 23 (c) (2) (A). Rather, the Court has the discretion to require notice. Id. In this case, the Court did not see fit to require notice to all potential class members. Furthermore, this case was resolved by a decision of this Court, not by a settlement or compromise. Thus, notice was not required under Rule 23(e). See Fed. R. Civ. P. 23(e).
In addition to seeking relief from judgment, Parkhurst also
22

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 23 of 24
asks this Court to hire new counsel to represent the inmates of WSP in this matter. According to Parkhurst, Mr. Pevar, the current counsel for Plaintiffs, has done a woefully inadequate job. Nothing could be further from the truth. Mr. Pevar has done a tremendous job representing the inmates of WSP in this case. He has been a zealous advocate from the beginning and, as a result of such efforts, has been a tremendous force in improving the conditions at WSP. The Court finds Mr. Pevar's representation to be more than adequate in this case. Therefore, the Court finds no reason to replace Mr. Pevar with alternate counsel.
Parkhurst also requests this Court to recuse itself from this proceeding. Parkhurst contends that this Court is "responsible for the continuing violence at WSP" and "for failing to replace Mr. Pevar when his failure to take his professional duties seriously became obvious." The Court finds this argument utterly meritless and lacking in candor. The Court perceives no reasons to recuse itself from this case.
Therefore, for the reasons just stated, and in accordance with the Court's oral ruling from the bench as stated in the record, Parkhurst's Motion for Relief From Judgment is DENIED in all respects.
23

Case 2:02-cv-00033-CAB Document 194 Filed 09/27/05 Page 24 of 24

CONCLUSION The Court is relatively pleased with the progress that the WDOC has made in improving conditions at the WSP. I think all parties can agree that, for the most part, the Remedial Plan, Policy 1.012, and the Court's Order for Protection of Documents are working as intended. However, it is apparent to this Court that minor amendments would increase the effectiveness of all three documents and the directives contained therein. Therefore, based upon the foregoing discussion, IT IS HEREBY ORDERED that Plaintiffs' Motion to Modify the Remedial Plan is DENIED as moot; Plaintiffs' Motion to Disseminate Redacted Investigative Reports is GRANTED; Plaintiffs' Objection to Defendants' Proposed Changes to Policy 1.012 is SUSTAINED in part and OVERRULED in part; Defendants' Motion to Modify the Order for Protection of Documents is DENIED; and the Motion for Relief from Judgment filed by Mr. Parkhurst and nine other inmates is DENIED.

Dated this

day of September, 2005.
(J;J!~ ~~/y i}/u#'4~~~
UNITED STATES DISTRICT JUDGE
24

 
 STEPHEN L. PEVAR American Civil Liberties Union Foundation 32 Grand Street Hartford, Connecticut 06106 (860) 293-1559
TIMOTHY C. KINGSTON SHIRLEY KINGSTON Graves, Miller & Kingston 408 W. 23rd Street, Suite One Cheyenne, WY 82001 (307) 638-8885
ATTORNEYS FOR PLAINTIFFS

-' u J
COUR '-•-M; ;.':

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf ) and on behalf of all other persons ) similarly situated,

Civ. No. 02-CV-033B

Plaintiffs,

vs.

) PLAINTIFFS' PROPOSED

JUDITH UPHOFF; VANCE EVERETT;

)

JAMES HEWITT; DAVID EBELL and

)

JOHN DOES 1 THROUGH 6; all of them )

in their individual and official )

capacities,

)

)

Defendants. )

REMEDIAL PLAN

The Court's Order Granting Plaintiff's Motion for Summary Judgment [hereinafter "Order"] of November 27, 2002, identifies three constitutional infirmities and one additional and foundational administrative inadequacy at
Skinner v. Uphoff

• m*

• • ••in • • • •

PC-WY-003-001

the Wyoming State Penitentiary (WSP) that must be remedied by the Defendants. These four areas of concern and inadequacy are:
1. Defendants have failed to properly investigate inmate-on-inmate assaults that resulted in a serious injury at WSP to determine whether staff error, staff misconduct, or some institutional deficiency contributed to or caused these assaults.
2. Defendants have failed to properly discipline WSP employees whose errors or misconduct contributed to or caused such assaults.
3. Defendants have enacted a policy and custom at WSP known as a "code of silence," under which they and their employees fail to document and report the staff errors, staff misconduct, and institutional deficiencies that have contributed to or caused inmate-on-inmate assaults.
4. The Court found that "a 'culture' [exists] at the prison that may make it difficult for senior administrators to properly supervise and discipline staff," and "a remedy must be developed to counter this 'culture.'" Order at 24.
The following Plan seeks to remedy each of these four areas of concern and inadequacy.

1. The Duty To Properly Investigate On April 1, 1996, Defendant Judith Uphoff, Director of
the Wyoming Department of Corrections (WDOC), enacted Administrative Regulation 7.017. This regulation sets forth a process by which WDOC is required to conduct a thorough internal investigation into each inmate-on-inmate assault that results in a "serious . . . injury." A copy of AR 7.017 is attached to and incorporated herein by reference.
Defendants have never adequately implemented AR 7.017. Therefore, neither the Court nor the Plaintiffs can know with confidence that the implementation of AR 7.017 will provide a sufficient remedy for Defendants' failure to properly investigate inmate-on-inmate assaults. However, it appears that an adequate implementation of AR 7.017 will remedy this constitutional defect.
Therefore, Defendants are ordered to adequately and properly implement AR 7.107. In the event the implementation of this regulation is insufficient to remedy the constitutional defect, or if its implementation creates some other unintended result, either party may petition the Court to reexamine this portion of the Remedial Plan.
Based on the facts in the record, though, AR 7.017 must be amended in two respects. First, the regulation

does not define the term "serious . . . injury, " and this omission has created some confusion as to which inmate injuries are subject to a Serious Incident Review (S.I.R.) investigation. Given Ms. Uphoff's deposition testimony, she must amend AR 7.017 so that the term "serious injury" includes any injury requiring a hospital test, such as xrays, or procedure, such as stitches, or hospitalization. Abrasions or scratches not accompanied by more serious injuries need not be considered a "serious injury" under the amended regulation unless Defendants define it as being inclusive.
Second, AR 7.017 states that the investigative committee should interview "relevant" witnesses but it does not expressly require that the victim of the assault be interviewed. Both Ms. Uphoff and Mr. Everett testified that normally the victim of the assault should be interviewed. AR 7.017 must be amended to state that the victim of the assault normally should be interviewed unless the victim declines or is unavailable.
If Defendants wish to amend AR 7.017 in any other fashion during the term of this Remedial Plan, they may do so provided that they first send the proposed amendment to counsel for Plaintiffs at least 30 days before the amendment will take effect. Plaintiffs may then seek

judicial review of the proposed change if the change would materially impact the effectiveness or scope of AR 7.017. In the event Plaintiffs challenge a proposed change within the 30-day review period, Defendants may not implement the change until after the Court has ruled upon Plaintiffs' challenge.
Currently, AR 7.017 permits the S.I.R. investigation to be conducted by WDOC employees. Director Uphoff admitted in her deposition, however, that it would be better to have independent investigators unconnected with WDOC to conduct these internal investigations. The WSP employee who chaired the March 2000 S.I.R. investigation into the Ellis Kennedy assault acknowledged that the S.I.R. committee "tempered" its findings and recommendations due to the fact that all three members of the committee were WSP employees.
The Court remains concerned that AR 7.017 will not be adequately implemented unless outside and independent personnel are in charge of orchestrating and performing the S.I.R. investigation. Recent events heighten this concern. Prison records show that four inmate-on-inmate assaults occurred at WSP in July 2002. Given AR 7.107, an S.I.R. committee should have investigated each of these assaults within 14 days of the incident. Yet Defendant Uphoff

waited two months before convening an S.I.R. committee. AR 7.017 also mandates that the S.I.R. committee be comprised of at least three members, each of whom must sign the Report. Yet only two members signed the most recent Report because the third member failed to participate in the investigation. Moreover, AR 7.017 mandates that each S.I.R. committee determine whether disciplinary action should be taken against any employee found to have violated prison policy. Yet this latest Report found that employees had violated prison policy but it expressly declined to make any recommendations regarding discipline. Defendants are hereby advised that, once this Remedial Plan goes into effect, similar violations of AR 7.017 may be grounds for a contempt citation and for the imposition of stricter requirements, including the requirement that outside and independent investigators administer the entire process.
The record in this case also reflects that some WSP employees have responded to prison internal investigations with disdain, disrespect, and lack of cooperation. In one such investigation, two sergeants and a lieutenant exhibited "no respect for the investigative process," the investigators reported, and had submitted to the investigative committee incomplete statements and reports. See Deposition Exhibit 89 at 8. Defendants must not

tolerate such behavior, which undermines the entire investigative process and the integrity of the prison.
Defendants Uphoff and Everett acknowledged during their depositions that upwards of 300 assaults occurred at WSP during the past six years. They also acknowledged that only three of these assaults were the subject of an internal investigation, and all three investigations found the presence of staff error. Given the possibility if not probability that staff error caused at least some of the other assaults and that, if left uncorrected, these deficiencies could cause additional assaults, the Court hereby orders the Defendants to conduct an S.I.R. investigation pursuant to AR 7.017 into each inmate-oninmate assault that resulted in a serious injury since January 1, 1999 and in which the victim of the assault remains in Defendants' custody.
2. The Duty To Discipline Defendants have promulgated a set of rules that inform
inmates of what behavior is expected of them and what range of punishment they may receive for each type of infraction. A similar set of rules must be developed for staff. Defendants must effectively, efficiently, and consistently enforce these rules, imposing discipline as necessary to

enforce compliance with their rules and deter unauthorized conduct by staff.
The record demonstrates that many of the policies and practices created by the Defendants to protect inmates from assault were not implemented by line officers and not monitored or enforced by supervisors. Prison logs show, for example, that for weeks at a time, line officers were not performing walk-throughs ("rounds") in the housing units in accordance with prison policy, and supervisors failed to notice or abate those violations of policy. The record also shows that even after the Defendants learned of these policy violations, no disciplinary action was taken against either the line officers or the supervisors.
In order to prevent such misconduct in the future and to ensure that violations of policy by line officers will be promptly detected and abated, the Defendants are ordered to undertake the following two remedial actions. First, within thirty days of the date of this Plan, Defendants must identify and give to counsel for Plaintiffs and to the Joint Expert (whose role is discussed later) a copy of all prison policies that have as a primary purpose the protection of inmates from assault, such as the walkthrough policy and the Protective Custody policy. Second, the Defendants must submit to Plaintiffs' counsel and to

the Joint Expert a monthly report signed by the Warden confirming that the Warden has reviewed reports submitted by each housing supervisor attesting that he or she personally reviewed relevant logs and conducted a sufficient investigation to know whether these policies had been properly implemented that month in the unit. If a supervisor's report discloses some area of noncompliance with policy, the Warden's report should explain what additional investigation was conducted or what remedial action was taken in order to ensure full compliance in the future. Supervisors who fail to submit timely and accurate monthly reports must be considered for appropriate discipline.
As mandated by AR 7.017, each S.I.R. committee must make a recommendation as to whether an employee found to have violated prison policy should be disciplined. In all instances in which an S.I.R. committee finds that a violation of policy has occurred in connection with an inmate-on-inmate assault, the Warden must issue a written report within 30 days detailing the disciplinary action that was taken, or explaining why no disciplinary action was taken, as the case may be. The report must set forth the facts upon which the Warden's decision was based. A

copy of the Warden's report must be placed in the S.I.R. FILE (discussed below).
As noted in the Court's Order, discipline of staff is a critical component of an effective system designed to reduce the errors and misconduct that in the past have caused or contributed to inmate-on-inmate violence at the prison. Defendants must bear in mind that a failure to appropriately discipline staff misconduct sends the wrong message regarding the importance of protecting inmates and obeying rules.
Defendants must promptly investigate and remedy all staff errors, shortcomings in policy, institutional deficiencies, or other inadequacies identified in an S.I.R. report or identified in any other report submitted by staff that may impact inmate-on-inmate violence. For instance, if an employee reports that walk-throughs are not being conducted as policy requires, or an S.I.R. investigation discloses that the policy on Protective Custody was violated, the Warden must promptly conduct any additional investigation necessary to determine the scope of the problem and take prompt action to abate it. Whenever a violation of policy has occurred, the Warden should consider whether other officers, in addition to the officer who committed the violation, need additional training, and
10

the Warden's written report should document the Warden's conclusion on that question and record any additional training (or other remedial action) that was ordered.
Defendants are required to maintain the following three central files, which must be complete, up-to-date, and kept in appropriate order. One file (the "S.I.R. FILE") will contain a copy of all correspondence, findings, and other documents relating to each SIR investigation. This central file, in other words, will contain a copy of everything connected with each S.I.R. investigation conducted at WSP, and each S.I.R. investigation will have its own folder(s) or bin within the S.I.R. FILE.
The second file (the "DISCIPLINARY ACTION FILE") will contain a copy of all documents related to disciplinary charges filed against a WSP employee in connection with an inmate-on-inmate assault. It will also contain the results of those charges, including appeals.
The third file (the "OTHER INVESTIGATIONS .FILE") will contain a copy of all correspondence and other documents generated in connection with the reporting, the investigation, and the remedy of errors, misconduct, and institutional deficiencies respecting inmate-on-inmate assaults that are not associated with an S.I.R. investigation.
11

Counsel for the Plaintiffs has a right to receive copies of these three files from the Defendants free of charge. After the first year under the Plan, however, if the Joint Expert certifies that the Defendants have remained in substantial compliance with the Plan, Defendants can charge Plaintiffs for copying costs unless the request for photocopies concerns documents or incidents that the Joint Expert has called into question.
3. Eliminating The "Code Of Silence" Defendants must issue a written policy that requires
staff to document and report to a supervisor the errors, misconduct, and institutional deficiencies of which they are aware that have caused or contributed to an inmate-oninmate assault. The policy must identify (1) the forms on which these reports are to be submitted, (2) how soon after an incident the report must be filed, and (3) the person to whom or post to which the report must be submitted. Defendants must also designate a person or post whose duty it is to investigate each such report and to submit written findings to the Warden within 14 days. The Warden must then undertake such reasonable and prompt action as is warranted, explaining in writing within 14 days after the receipt of the report the basis for each such
12

determination. A copy of all of these documents must be placed in the OTHER INVESTIGATIONS FILE. For instance, if an officer believes that an assault occurred because the Protective Custody policy was not followed or because an officer mistakenly opened the wrong cell door, a report should be filed containing that information. The Warden must investigate the allegation and write a report within 14 days. The failure of an employee to report and document such information, and the failure of the Warden to promptly investigate and act upon it, must be considered grounds for disciplinary action.
Within 30 days, Defendants must submit to Plaintiffs' counsel written policies implementing the above requirements. If Plaintiffs believe that these policies are inadequate, they should make their concerns known to the Defendants, and may thereafter petition the Court to review them if a dispute continues to exist.
4. Changing the Prison Culture Defendant Uphoff testified in her deposition that
senior administrators have lost their ability to properly supervise WSP employees with respect to inmate safety due to the "culture" of the prison. This loss of control represents a serious threat to inmate and staff safety.
13

According to Ms. Uphoff, "there's a culture in that facility that is as old as the facility that says 'We do what we think we need to do, not necessarily the policy. ' " (Uphoff Deposition at 602-03.) This culture, Ms. Uphoff stated, has caused staff to believe that "we do not have to live by your rules, but what we create." (_Id. at 605-06.)
As Ms. Uphoff realizes, no substantial improvements can occur regarding inmate safety "until we dig into that, find some way to break that [attitude] and rebuild it in a different paradigm." (Id. at 606.) Ms. Uphoff testified that one of the major signs of this culture is "a high level of intimidation" of younger correctional officers and on female staff to conform to certain behavioral norms. (Id. at 603-05.)
Warden Everett agreed that there is a "culture" at the prison that prevents senior staff from properly supervising the facility. (Everett Deposition at 44.) When asked to explain what changes should be made to combat this culture, he emphasized training and the imposition of discipline: "The employees have to know what they're being held accountable for, and I think that comes through training. And the second part of that is the enforcement part." (Id. at 79.)
14

Plaintiffs have submitted and the Court adopts the recommendations of Dr. Paul Katsampes, whose report is attached to this Plan and incorporated by reference. In particular, Defendants must implement each of the five recommendations listed in the "Summary" of the report.
Dr. Katsampes1 first recommendation is that the National Institute of Corrections (NIC) conduct an assessment of WSP's organizational culture. The Court expects WSP to promptly contact NIC for this purpose, to comply with NIC's requirements for the completion of the assessment, and to implement NIC's recommendations unless relieved of such duties by the Court. In the event NIC cannot initiate the assessment within 60 days of the date of this Plan, Defendants must retain some other independent and competent agency or expert to do so, and the Defendants must then comply with the other four recommendations in the Kats ampes Summary.
5. Joint Expert Given the depth of the deficiencies and infirmities at
WSP as found by the Court and their complexity and longevity, the Court has determined that a Joint Expert should be hired to ensure Defendants' compliance with this
15

Remedial Plan. All reasonable expenses of the Joint Expert will be borne by the Defendants.
The Joint Expert (JE) will not report to the Court nor be an arm or official of the Court. Rather, the JE will report only to the parties. However, should an issue regarding compliance with this Remedial Plan arise between the parties, either party may submit to the Court any report written by the JE and the JE may testify at any compliance hearing.
The parties may agree to have the JE perform whatever functions they deem appropriate. At a minimum the JE should (1) investigate Defendants' compliance with all aspects of the Remedial Plan, (2) conduct at least three on-site inspections of WSP a year and write a summary of findings following each inspection, and (3) allow counsel for each party, as well as allow inmates individually, to correspond confidentially with the JE, with the understanding that any information given to the JE must be disclosed to all parties and the Court if the law requires it or if the reasonable needs of the JE necessitate it. Inmates may also correspond with counsel for the Plaintiffs regarding any matter arising under the Remedial Plan, and are obligated to pursue the prison's grievance system for all matters covered by that system. Incoming and outgoing
16

correspondence between an inmate and the JE will be considered and treated by prison staff as privileged correspondence, the same as attorney-inmate mail.
The purpose of the JE, in short, is both to monitor Defendants' compliance with, and facilitate the resolution of disputes arising under, this Remedial Plan. The JE is to be objective and impartial. If the parties are unable to agree upon a JE within 20 days after this Plan is approved by the Court, each party shall submit a maximum of two names to the Court along with a resume from each candidate and a short statement from counsel explaining why the candidate is appropriate. The Court will then pick a JE for the parties. Either party may subsequently challenge the appointment of the JE upon grounds of impartiality or other relevant basis.
Counsel for each party is entitled to submit questions, information, and concerns to the JE at any time, and the JE will then conduct such an investigation as he or she deems appropriate. To save costs, additional on-site visits to the prison should be viewed as a last resort. In the event that the JE decides that it would be less expensive to hire an- assistant to help review documents, data, or inmate correspondence than for the JE to do it,
17

the JE may hire such assistant who will be paid by the Defendants.
It is expected that both parties will perform their respective duties in good faith and will endeavor to resolve disputes arising under this Remedial Plan without further resort to the Court. The Court stands ready, however, to enforce the terms of the Remedial Plan if called upon to do so.
(To be signed by the Court)
1_ j/W
Dated this <rS ^day of December, 2002.
Stepnen L. Pevar Timothy C. Kingston Shirley Kingston Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned attorney of record in this case hereby certifies that a true and correct copy of the foregoing Plaintiffs' Proposed Remedial Plan was sent by U.S. mail
18

postage prepaid and sent electronically this 23rd day of December, 2002, to:
Steven Czoschke Office of the Attorney General Herschler Building, First West Cheyenne, WY 82002 email: sczosc®state.wy.us
if-
Stephen L. Pevar
19

STATE OF WYOMING
DEPARTMENT OF CORRECTIONS
ADMINISTRATIVE REGULATIONS

NUMBER

PAGE NUMBER

7,017

1 OF 7

SUBJECT: Reporting and Investigation of Major Incidents

I. PURPOSE:
It is the directive of the Division of Prisons that all facilities will report:
A. Any incident or circumstance involving Division of Prisons employees, volunteers, inmate/offenders, programs or facilities that, in the opinion of the warden/superintendent or designee, is unusual to the extent of becoming a matter of significant concern or interest to the division of prisons administrator, the Director, or the general public.
B. Any incident which constitutes an immediate threat to the life, safety or health of staff, an inmate/offender, citizen, or damage or destruction of property of the Department of Corrections or aforementioned parties.
C. Arty act(s) that constitute a major threat to the security or orderly operation of the institution or may compromise the sound management or integrity of a facility or the Division of Prisons.
D. Any act(s) that constitute a felony or criminal act by employees, volunteers, civilians, or inmate/offenders.
II. DEFINITIONS:
A. SIR: Serious Incident Review. A formal review by a three-member panel not associated with the facility where the incident took place.
B. Internal Incident Review: An internal investigation. Less formal than a SIR.
C. Major incidents are generally defined by, but not limited to, the following criteria:
1. Offender Disturbances, work stoppages, or other individual or group actions which threaten the orderly and secure operation of Division of Prison facilities and offices of the department.
2. Death or serious injury causing hospitalization of an offender; or the death or any injury of a staff or citizen from an incident involving an offender or occurring on state property.
3. Any incident involving the use of or discharge of a firearm.
4. All accidents involving state vehicles resulting in personal injury and/or property damage.

DEPARTMENT OF CORRECTIONS

Keporting and Investigation of Major Incidents

HAUE 2 OF 7

5. Theft, destruction, loss or damage to state property.
6. The escape or attempted escape of any offender.
7. Any offender or staff connected activity requiring notification of law enforcement officials for purposes of criminal prosecution of an offender, staff, visitor, or others.
8. Any incident or condition involving materials or waste classified as hazardous, or any incident or condition which requires contact with or reporting to a regulatory agency.
9. Any use of chemical agents, taser or similar technology.
10. Any Use of Force Situation.
III. PROCEDURE:
This procedure describes the steps necessary to report major incidents to the office of the division of prison administrator. Every incident, regardless of its nature must be reported to the warden/superintendent. The incidents defined in this procedure must be reported to the division of prisons administrator. This Administrative Regulation is not meant to replace A.R. 1.004, or Director Directive 95-007.
A. Critical/Unusual Incidents.
1. Documentation:
a. Any major incidents, as described in the definition section, will be considered critical and unusual. These incidents will be reported immediately by phone to the division of prisons administrator, or designee. A copy of the incident report form will be faxed as soon as possible to the division of prisons administrator. For any incident that does not meet the major incident criteria, fax notification as listed in subsection 'a' is required.
(1) A copy of all incident documentation will be forwarded to the division of prisons administrator, upon deactivation of the incident and no later than 10:00 a.m., the morning following the resolve and deactivation.
(a) Emergency checklists and post orders will count as employee information reports. Any employee who does not complete his/her checklist will be required to submit an information report at the end of the incident.

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(b) Should any incident not include the use of checklists, information reports will be completed by all staff having direct involvement with the incident.
b. If a serious incident review is required, additional detailed reports from staff involved may be submitted to the warden/superintendent and division of prisons administrator.
c. Files shall be maintained in the office of the division of prisons administrator, by category of incident, for future reference and research.
Reporting Procedures.
a. All major incidents within the Division of Prison, as described in the definitions section, shall be reported to the division of prisons administrator, or designee. The division of prisons administrator, or designee will be responsible to notify the Director. The media shall be notified, as appropriate, by the department public information officer with approval of the Director.
b. The division of prisons administrator will be responsible to disseminate information about reported incidents to appropriate locations within the. department.
(1) The chief of prison operations will be responsible to notify other facilities and keep them apprised of any incidents.
Investigations:
a. The division of prisons administrator will require an investigation for every escape, serious crime or injury in a facility and a written report to be completed.
(1) These investigations will be completed as outlined in the SIR section of this policy.
b. The Director, division of prisons administrator, or warden/superintendent may authorize the convening of a serious incident review (SIR) panel as situations require.
(1) A SIR shall be required for, but not limited to, any of the following incidents:
(a) Riot or hostage situation.

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(b) Discharge of a firearm other than for training or maintenance.
(c) Serious injury or death of any person (with the exception of death from natural causes).
(d) A felonious/criminal act of any person.
(2) A warden/superintendent may only authorize a SIR for incidents occurring in his/her facility.
(3) . The facility head may conduct aninternal critical incident review at his or her discretion, for those reportable incidents that do not require a SIR or other formal investigation.
(a) Copies ofthis investigation will be forwarded to the division of prisons administrator within five working days of completion.
4. Serious Incident Review Panel (SIR).
a. The director or division of prisons administrator shall select a panel ofat least three people to conduct the SIR.
(1) The panel shall consist of at least one person from a division other than the one inwhich the incident occurred.
(2) The chairperson of the panel and at least one of the two other members, shall not be employed by the facility where the incident occurred.
(3) Legal services and personnel shall be contacted prior to the convening of the panel. A representative from legal services and personnel shall be a member ofthe panel ifso required.
(4) The panel may consist of outside agency personnel if determined by the Director and the division of prisons administrator.
5. Serious Incident Review:
a. The SIR panel should convene no later than fourteen days from the end of the incident.

DEPARTMENT OF CORRECTIONS 7.017

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(1) If there is an ongoing criminal or internal investigation, the panel should not convene until the investigative results are available.
(2) If new information is received after the SIR panel has completed its report, a new SIR panel may be opened, or the original SIR panel may be recalled at the discretion of the division of prisons administrator or Director.
(3) The Director or division of prisons administrator may appoint individuals outside the department to the SIR panel,
• either for technical expertise or for increased independence.
b. The panel shall review all documents and interview all people who have relevant information regarding the incident. The panel shall determine:
(1) Whether the action taken was consistent with departmental procedure.
(2) Whether the incident was handled properly and whether there were better alternatives that should or could have been employed in any aspect of the incident.
(3) Whether any action should be taken to avoid future incidents.
(4) Whether any disciplinary action or recommendations for outstanding performance of duty should be made to the facility head, division of prisons administrator, or director.
(5) Were the departmental policy and procedures good or do they need to be reviewed.
(6) Other significant aspects of the incident or situation.
(7) Whether criminal prosecution should be followed.
c. When the panel has reached its conclusions, the chairperson will be responsible for drafting a report summarizing their factual findings and recommendations.
(1) The panel members shall read and sign the report within five working days of completion of the review. Panel members dissenting with some or all of the report shall so note in writing to the division of prisons administrator.

DEPARTMENT OF CORRECTIONS 7.017

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(2) The report shall be sent to the warden/superintendent, where the incident occurred. The warden/superintendent will review the report and forward it with their written recommendations and comments to the division of prisons administrator within five working days of the completion of the investigation.
(3) The division of prisons administrator shall review the report and forward it, along with written comments and recommendations to the Director within an additional five working days.
(4) The division of prisons administrator or Director shall take . such actions as are warranted after considering the report and recommendations. Those actions shall be documented in writing and attached to the original report.
(a) A copy of the final action shall be forwarded back to the warden/superintendent where the incident occurred, unless prosecution or confidentiality issues prohibit such dissemination.
(5) The final report and all attachments will be kept on file in the office of the division of prisons administrator.
A copy of the final report and attachments shall be sent to legal services.
(1) The senior assistant attorney general shall review the report and attachments to determine whether it should be classified as exempt from disclosure.
(2) The senior assistant attorney general's opinion concerning the disclosure of the report shall be written and filed with the original report.
The final report will be considered the official document of the department. Any document reviewed by the committee, to include electronic items, will be attached or identified and referenced in the final report.
In the event a SIR is not required, the warden/superintendent will

DEPARTMENT OF CORRECTIONS

CT?%JC\* i . nc^juiuiiy anu
Investigation of Major Incidents

•nuc / \jr

I

forward any investigative report to the division of prisons administrator within five days of the incident.

Judifh Uphoff, Director Wyoming Department of Corrections
COMMENTS:

Effective Date

Revised:

Summary of Revision:

Dr. Paul Katsampes
Box 367 Eldorado Springs, CO 80025
303.499.9461 okatsamoesffiaol.com
December 8,2002

To: From: Reference:

Stephen Pevar, ACLU Paul Katsampes Organizational Culture Issues and Recommendations Related to Skinner v. Uphoff. USDC of Wyoming. No. 02-CV-033B

Documents Reviewed: 1. Skinner v. Uphoff. USDC of Wyoming. No. 02-CV-Q33B - Plaintiffs Brief In Support of Summary Judgment 2. Skinner v. Uphoff, USDC of Wyoming, No. 02-CV-033B - Order Granting Plaintiff's Motion for Summary Judgment 3. Skinner v. Uphoff, USDC of Wyoming, No. 02-CV-033B - Exhibit 89. Investigative Report, April 30,2001 4. Skinner v. Uphoff. USDC of Wyoming. No. 02-CV-033B - Depositions of Judith Uphoff and Vance Everett (selected pages referring to penitentiary culture) 5. Training on Assessment pf Institutional Culture. National Institute of Corrections and Criminal Justice Institute, Inc., 2002. 6. Organizational Culture Course - Training Manual, Pennsylvania Department of Corrections, Carol Flaherty-Zonis, 2000. 7. Criminal Justice Organizations, 3rd Edition, Stojkovic, Kalinich, and Klofas, West/Wadsworth Publishing Company, 2002. 8. Denver Police/Fire Officer Selection Process Research. Mayor's Blue Ribbon Committee, Katsampes and Kilpatrick, 2000.
Introduction The class action on behalf of the inmates of the Wyoming State Penitentiary requests an order requiring administrators of the WSP to take reasonable measures to ensure the safety of inmates. The class action was initiated after numerous inmates were seriously injured and one inmate died as the result of inmate-to-inmate assaults. The investigative report relating to an inmate assault revealed that staff (officers and line supervisors) was not cooperative with the investigators and that staff had ignored prison policies and procedures.
In their depositions, Judith Uphoff (Director of the Wyoming Department of Corrections) and Vance Everett (Warden of the Wyoming State Penitentiary) admitted that they had lost their ability to regulate staff behavior with respect to inmate safety - and staff behavior in general - due to the "culture" of the prison. This loss of control by senior

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staff represents a serious threat to public safety as a whole, and inmate and staff safety in particular.
According to Ms. Uphoff, "there's a culture in that facility that is as old as the facility that says 'We do what we think we need to do, not necessarily the policy."11 This culture, Ms. Uphoff stated, has caused staff to believe that "we do not have to live by your rules, but what we create."2
As Ms. Uphoff realizes, no substantial improvements can occur regarding inmate safety - and staff misconduct in general - "until we dig into that, find some way to break that [attitude] and rebuild it in a different paradigm."3 "We've got to get that culture within that prison that says that what we've always done is right, them folks don't know anything."4 Uphoff testified that one of the major signs of this culture is "a high level of intimidation" of younger correctional officers and on female staff to conform to certain behavioral norms.5
Everett agrees "that there certainly is a culture" at the prison that prevents senior staff from properly supervising the facility.6 When asked to explain what changes should be made to combat this culture, he emphasized training and the imposition of discipline: T h e employees have to know what they're being held accountable for, and I think that comes through training. And the second part of that is the enforcement part."7
The purpose of this report is to respond to these statements by Ms. Uphoff and Mr. Everett and to fashion a remedy for the problems they identified. The report will define organizational culture, discuss the stages of how a culture develops, discuss strategies of changing a culture, and make recommendations for addressing the cultural problems of the Wyoming State Penitentiary.

Organizational Culture - What is it? Organizational Culture8 can be briefly described as a set of assumptions, values and beliefs shared by members of an organization. The assumptions, values and beliefs create language, symbols and folklore and ultimately serve to direct the behaviors of the organizational members, especially in response to work related problems. Groups within the organization may develop behavioral processes, such as language, patterns of
2 Deposition of Uphoff, pages 602-03. 2 Id., page 605-06. 3 Id- page 606. 4 Id-, page 42. 5 id., page 603-05.
* Deposition of Everett, page 41. 7 Id-, page 79. 8 Criminal Justice Organizations. 3rd Edition. Stojkovic, Kaltnich, and Klofas, West/Wadsworth Publishing Company,
2002, Chapter 9.

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interactions, rituals, and norms that evolve into their separate ways of completing tasks. These behavioral processes may be in conflict with the formal and stated goals of the organization. These groups are sub-cultures within the organization (or society). Dominant values espoused by an organization such as rehabilitation, crime prevention, the philosophy of the organization toward employees or clients, rules of the game for getting along in the organization's social system and the climate created in an organization all may be influenced by the values and norms of the various sub-cultures in the organization8
The process of socialization in an organization serves to impose the organization's patterns of basic assumptions upon its new members. The pattern of basic assumptions - invented, discovered, or developed - by a group or sub-culture as it copes with its survival in the organization is taught to new members as the correct way to perceive, think, and feel in relation to those problems. Cultural patterns evolve to provide ready made solutions to situations group members may encounter. These may not be the best or only solutions, but they are the answers the sub-culture develops as a set of standard patterns for dealing with common problems that fit the sub-culture's values and norms.10
The more an organization or group in the organization (sub-culture) relies upon its ready-made solutions, the more deeply entrenched the culture. People in the subculture develop a special language to solve the problem of communicating and it becomes the framework for their culture that results in goals that are expressed as values. From the group's values evolve group norms. The norms specify what people should or shouldn't do. The norms, now, dictate the behaviors the members of the group use to complete tasks. The standard ways of doing things and strong views of right and wrong are enforced by the group. Once the organization or group has developed its values, norms and behaviors it attempts to perpetuate its culture.11 The targets for an analysis of an organization's or group's culture are its displayed values, norms and behaviors.
There appears to be an obvious sub-culture development process existing in prison, jail and police organizations. The research conducted in prisons supports the conclusion that prison officers develop sub-culture values, norms and resulting behaviors that are often in conflict with the their agencies' stated values. Based on the testimony of Ms. Uphoff we know that an officer sub-culture exists in the Wyoming State Penitentiary that has conflicting values and norms compared to the values of the dominant organization.

9 Criminal Justice Organizations. ?"" and 3rd Editions. Instructors Guide. Paul Katsampes,1998, Katsampes and Nees, 2002, pages 59-60.
10 Ibid. 11 Ibid.

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Carroll reports12 (and summarizes the research of W.A. Farkas and others) that correction officers studied at different locations and at different periods of time display a distinct officer sub-culture. The following paragraphs describe the elements of the Penitentiary officer sub-culture:
Farkas (1997) lists the major tenets of the code (code of solidarity) as follows: always go to the aid of another officer, don't be too friendly with inmates, don't abuse your authority, don't stab a coworker in the back, cover your ass and don't admit mistakes, carry your own weight, defer to the wisdom of veteran officers, and mind your own business. In another report Farkas (2000) typologizes officers on their conformity to both organizational goals and the informal code. She finds the largest percentage of the officers (approximately 43 percent) are rule enforcers who embrace the organization's goats and values, who see their job as maintaining custody and control, who reject a human service role and see it as compromising, and who conform closely to official policies and procedures. About 14 percent of the officers are estimated to be "hard liners" who support the organization's goals, but who hold extremely negative views of inmates and resent providing services to them, who enforce rules as much to show authority as to maintain order, and who may become abusive towards inmates.
Another group who conform closely to formal policies and procedures are "loners." They accept the formal goals of the institution but feel little loyalty to fellow officers. They enforce the rules rigidly to validate their authority and to avoid making a mistake. Females and Black officers were disproportionately represented in this group.
At the other extreme from the "hard liners" are the "people workers." They comprise about 22 percent of the officers, and are generally older and more experienced than the rule enforcers and "hard liners." These officers modify the militaristic values of the organization, developing a more comfortable style of working with inmates and seeking to gain compliance through communication and personalized relations. Some officers modify formal policies and procedures in the direction of personalized relations with inmates but adhere closely to formal policies and procedure. Farkas terms these employees as "synthetic officers" and estimate they comprise about 14 percent of the officer force. Finally, three other types were noted: "the lax officer", "officer friendly" and the "wishy-washy" type. These officers, who were few in number, rejected or ignored policies and procedures, allowed their authority to be compromised and themselves to be manipulated.

12 "Organizational Culture: An Overview of Perspectives, Methods and Findings" in Training on Assessment of Institutional Culture. National Institute of Corrections and Criminal Justice Institute, Inc., Carroll, 2002, pages 5-6. Dr. Leo Carroll, a University of Rhode Island Sociology Professor, is the primary author of the NIC Prison Culture Assessment document.

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Other research, however, indicates that even though they may constitute a minority, the views of the "hard-liners" may dominate the officer subculture. Using his position as a correctional officer in Texas from 1981 through 1983 to do an ethnography, Marquart (1986) found that the unofficial use of force was deeply entrenched in the officer subculture.
Organizational Culture - How it Develops Organizational Culture is developed through a socialization process. Socialization is a process of change that includes three distinct stages: anticipatory, formal, and informal. The first stage is the anticipatory stage that begins prior to the entry of an individual into an occupation. The formal stage is the pre-service and on-the-job training conducted by the administration for the purpose of teaching the new employee the "right way" or organization's way to do the job tasks. The informal stage is how the worker group teaches the new employee the standard ways of doing things and views of right and wrong as they have been developed by the sub-culture.
Anticipatory

Formal
i
Informal
In the anticipatory stage13, those considering a particular occupation begin to anticipate the demands and expectations of their future job. They begin to adopt attitudes and values they believe are consistent with the occupation, and they come to view themselves as members of a group. During this stage, individuals are influenced by two main reference groups. First, those tangential to the occupation such as family members, neighbors, teachers, media may transmit their views of the job. Second, members of the occupation such as persons recruiting and having other direct contact may directly transmit information about the job.
When a person joins a particular occupation, the second, or formal14, stage in socialization usually occurs. This is generally a period of formalized training that the organization creates as the time when new employees are instructed in the techniques of how to do the job. The formal training Includes the mandated or agency designed pre-service training classes and/or formal on-the-job training conducted by a designated
13 Crjrninal Justice Organizations. 3rd Edition. Sto]kovic, Kalinich, and Klofas, West/Wadsworth Publishing Company, 2002, Chapter 9.
14 Ibid.

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training officer. The designated training officer is usually referred to as a Field Training Officer and is considered to be an extension of the training academy.
The third and ongoing phase of socialization is the informal stage. In this stage the relevant reference group consists of peers, supervisors, and even clients to whom a worker is exposed on a daily basis. Here the routine of the job shapes the role of the worker, but most important, the influences of the worker peer group (the sub-culture) become very strong. It is at this stage that the new employee has a motivating need to be accepted into the group by his/her colleagues. This need to belong to the group is even stronger in criminal justice occupations because of the safety issues of most jobs.
In criminal justice the most often discussed problem with the socialization process is that of role conflict.15 Role conflict is the occurrence of two or more role expectations such that compliance with one makes compliance with another difficult or impossible. Conflicting expectations may come from two or more role senders or may emanate from a single role sender. This competition is expressed in the conflicting expectations of front-line workers. Correction officers need to maintain custody and control but, at the same time, do it without excessive force. (The change in title from prison guard to corrections officer was also meant to connote a different role for front-line Prison staff). Police officers are charged with controlling crime as well as meeting due process constraints. Probation and parole officers must provide surveillance of their caseload to prevent crimes and assure compliance with rules, but they must also provide a supportive atmosphere and services to assist in adjustment to the community. All human service workers are sent conflicting messages about the process of their work. Although the importance of providing custodial or helping services is stressed, these services are to be provided to large caseloads of clients.
The prison officer sub-culture may develop values, norms and behaviors that, when followed, help the officer to reduce the struggles associated with the role conflict. These role conflict ready-made answers are transmitted to the new employee, initially, during the informal stage of the socialization process.
Strategies for Change16 There are three basic strategies for changing the behaviors of individuals or groups. These strategies include the rational-empirical approach, the power-coercive approach, and the normative-reeducation approach. The rational-empirical approach is based on presenting information to the change target that is logical. The power-coercive approach is based on using the influence of reward/punishment. The normative-reeducation

15 ibid. 16 The Planning of Change. Benis, Benne and Chin, 1970. This "book of change" has been presented through several
editions over the years and it stands as a comprehensive and realistic compilation of change theory directed toward individuals, organizations and communities.

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approach focuses on using a strategy that allows the target person or group to decide themselves to change their norms. Examples of the change strategies are as follows:
1. Logic (rational-empirical approach) - This approach or strategy is based on the concept that if information is presented that is logical, the change target will understand and change his or her behavior to the new way of doing things. Training programs, education, model programs are examples of the logical approach to change. Agency pre-service and post-service employee training programs and academies, college classes, and professional lectures are examples of logical change delivery systems designed to cause individuals or groups to complete tasks in a different manner. Training and education is based on this premise that when new information is presented, people will change if it is logical. The majority of change programs are based on the logical approach.
2. Power (power-coercive approach) - This approach or strategy is based on the concept that if information is presented with the caveat that non-compliance will result in punishment and/or compliance will result in a reward, the change target will change the behavior. Employee discipline, suspensions and terminations (punishment), and promotions, recognition (rewards) are examples of the power approach to change. "My way or the highway" is the motto of the power-coercive change strategist.
3. Norms (normative-reeducation approach) - This approach or strategy is based on the concept that when the individual or target group decides to change behaviors it is because they have developed new values or norms. People may change their values and norms when they participate in a collaborative problem-solving process that results in solutions meeting their needs and concerns. Quality Circles and Management by Objectives programs that involve employees and managers working together to set objectives and solve work-related problems are examples of the change approach that addresses worker norms. The by-line of "these are my needs, what are your needs" that results in new solutions to organizational problems is the basis of the collaborative conflict resolution process.
Recommendations Changing the culture of the Wyoming State Penitentiary represents a formidable task that will not be accomplished in the short term or without difficulty, as Ms. Uphoff has recognized. Values of individuals that have been created over the years and that have been reinforced by group members and the nature of the job are not easily changed. The following table and narrative Includes recommendations that need to be considered as a comprehensive plan. The table matrix reflects the stages of culture development (anticipatory, formal, informal) combined with the strategies of change (logic, power, norms).

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Change Strategy Table - Wyoming State Penitentiary

Strategies &
Stages

Logic

Power

Norms

Anticipatory

1. Agency Advertising use of media, news articles, high school & college job fairs.
2. Use model officers in recruiting efforts

1. Clearly state the organisation's mission, goals
and policies and procedures & consequences of violations in the recruiting and selection process

1. Develop selection requirements that emphasize professionalism and education
2. Use psychological, social and value based Instruments and interviewing in the selection process

Formal

1. Increase amount of pxaz service training
2. Increase training emphasis on ethics and professionalism
3. Develop or reorganize Field Training Officer program
4. implement a first line supervisor training program that emphasizes problem solving & accountability

1. Clarifvthe organization's mission, goals and policies and procedures & clearly state consequences of violations
2. Implement a progressive disciolinarv Drocess for officer infractions
3. Terminate repeat or serious offenders
4. Terminate new officers during the FTO and probationary stage who are not professional

1. Promote and reward officers who are productive, professional and opinion leaders
2. Reward officers who recruit professional applicants

Informal

1. Itfentifv professional opinion leaders and include them in training programs
2. ld.enflfy officer safety and securitv Issues and needs
3. Reduce low staffina and
inmate crowding

1. Management should Involve middle manaaers and first-line supervisors in problem-solving and change strategy meetings. Followed bv termination or reduction in rank of staff who do not support or implement solutions.

1. Initiate a collaborative conflitf resolution process uslna small groups of officers to identify officer safety and security needs and needs of administration.
2. Create officer problemsolving teams to identify solutions to inmate control problems

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The following is a narrative of the steps to initiate the cultural change at WSP that includes the recommendations from the change strategy table:
1. The National Institute of Corrections17 - The Prisons Division has developed technical assistance {Training on Assessment of Institutional Culture) for assessing an agency's organizational culture.'8 This assessment process should be WSP's first step in the overall sub-culture change strategy. The assessment process includes looking at the six aspects of organizational culture: organizational characteristics, organizational leadership, management of employees, organizational glue, strategic emphasis, and criteria of success. Specifically, the following seven elements of Penitentiary culture are examined:
a. Central values and assumptions held by members throughout the organization,
b. Activities to ensure that the values and assumptions of organizational members are similar to the organization's core,
c. Practices used to foster and renew commitment among organizational members,
d. Recognition and rewards for compliance with core values, e. Competing interests within the staff and how those competing interests
are reconciled, f. Disparity between espoused values and actual practice, g. Cultural leadership throughout all levels of the organization.
2. The recruitment and selection of correction officers should be reviewed to ensure that the highest quality potential applicant available is contacted, screened and selected. The following are elements of the recruitment and selection process. a. Recruitment - Agency advertising is the use of media, news articles, high school and college job fairs. There is a large amount of information transferred to the public depicting correction officers in a negative light through television programs and movies. This information contributes to the anticipatory stage of the socialization process. The agency should counteract the negative information with propaganda showing the officer position as being positive and professional. b. Job fairs and public contact should be accomplished by using model officers as recruiters. Colleges and universities are sources of potential applicants that, research shows, are more professional in the long term.19

17 A complete description of the NIC assessment process Is in Training on Assessment of Institutional Culture. National Institute of Corrections and Criminal Justice Institute, Inc., Carroll, 2002. This document Is available by contacting the NIC Information Center, Longmont, Colorado. The technical assistance availability information for the prison assessment is available by contacting the NIC Prisons Division, Washington, DC.
19 The Pennsylvania Department of Corrections also has an organizational culture course and materials available through the NIC Information Center.
19 Denver Police/Fire Officer Selection Process Research. Mayor's Blue Ribbon Committee, Katsampes and
Kilpatrick, 2000. This research revealed that officers with college educations were more productive, professional and ethical In the long term. They viewed their position as being a profession as opposed to a job.

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The emphasis should be on presenting the occupation as a profession with officers as role models. The agency must have documentation of progressive career tracks and positions that offer opportunities for responsibility and achievement.
c. The applicant screening steps need to include the use of psychological, social and value based instruments and interviewing in the selection process. During this process a variety of criteria, often intuitive, sometimes systematic, is used to weed out candidates. This step should be accomplished in a manner to ensure that applicants have stable values that will contribute to a positive organization climate. Research shows that job qualifications directly influence socialization. Some criminal justice organizations use assessment centers that use simulations of on-the-job performance to identify applicant responses.20
3. A comprehensive training program should be developed that increases the amount of pre-service training and contact time with management. The formal stages of training provide significant opportunities to influence socialization. The process as well as the training content influence role taking. a. Training is an integral part of the sequential socialization process (the connected stages of officer development)21 and an important time when a trainee passes through discrete stages on the way to becoming a fully accepted member of the organization. The amount of training increases the time the administration has with new officers allowing them to place an emphasis on ethics and professionalism. The Penitentiary officer training programs in the United States are often limited to two to four weeks limiting the time management has to properly develop professional officers. Canada, for example, has emphasized the professional aspects of corrections by offering correction officer training as long as six months in most provinces.
b. The Penitentiary should develop or reorganize (if one exists) a Field Training Officer program. A Reid Training Officer program is an important part of the serial socialization process and it relies on experienced veterans to groom newcomers into the organization. The FTOs work with and observe the new recruits after the recruits have completed the preservice training program. FTOs are an extension of the administration's training component and they are officers who possess positive professional attributes. The objective of the FTO program is to negate the effects of the sub-culture during a time when new officers are most susceptible to peer group influences.22 Socialization is more prevalent

20 Criminal justice Organizations. 2nd Edition. Instructors Guide. Katsampes,1998, pages 62-63. 21 Police for example, go through a sequence ofacademy training, field training, and a probationary period, while
corrections officers frequently begin with on-the-Job training prior to entry into the academy. 22 The FTO concept was develop by Oakland Police Officers during the 1960s in an effort to reduce violence in the
city between citizens and the police. Today most U.S. police department and jails have FTO programs.

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during the early than the later stages of a career and recruits are more susceptible than experienced workers. FTOs become long term mentors or reference persons who new officers may consult when confronted with ethical situations. c. The Penitentiary should implement a first line supervisor training program that emphasizes problem solving and accountability. Evidence offered by Penitentiary officials suggests that middle managers and line supervisors are part of the officer sub-culture. These managers and supervisors are the most important component of the management system that should be directing and controlling the line-level officers. A supervisor training program should be designed to develop supervisors with skills in controlling productive employees by using problem-solving and accountability practices appropriately. A supervisor training program also gives the administration the opportunity to establish management's expectations of supervisors and the criteria by which supervisors will be evaluated.
4. A management accountability system should be established and maintained. a. The organization's mission, goals, policies and procedures should be clarified through training and practice. Management should clearly state the consequences of violating agency policy. Policies and procedures are meaningless if there is no accountability for violations. Officers will continually test the boundaries of rules so management must establish the boundaries with accountability practices. The "code of silence" is a strategy of staff to resist and avoid accountability. Management should create policies that require officers to report serious violations of policies and procedures. Staff who do not report policy violations should be punished.
b. Management should involve middle managers and first-line supervisors in problem-solving and change strategy meetings. These meetings should be followed by termination or reduction in rank of managers and supervisors who do not support or implement the solutions agreed upon in the meetings. The "code of silence" of staff is confronted by first establishing middle managers and supervisors as positive "bridges" between top management and line level workers. Middle managers and supervisors should not be part of the officer sub-culture and they should be available to officers that want to report wrongdoing and violations. These managers and supervisors should be role models for appropriate and professional staff behavior.
c. The Penitentiary should implement a progressive disciplinary process for officer infractions of policy and management should terminate repeat or serious offenders. Management should also terminate new officers during the FTO and probationary stage not displaying the potential to become professional officers.

P. Katsampes deport

Skinner v. Uphoff, USOC of Wyoming, No. 02-CV-033B

Page 11

d. A process for conducting prompt and thorough investigations of reports that appear to identify a breach of policy and of ail allegations, from whatever source, of policy violations should be established and maintained as an integral part of the accountability system.
5. A strategy confronting the penitentiary officer informal socialization stage should be designed and implemented. a. First, the penitentiary administration should recognize the correction officer job/profession consists of critical security and safety concerns and that those concerns may be extremely powerful motivators when compared to other administration policies. These security and safety concerns are the catalysts for officer solidarity that, in turn, creates "codes of silence" and other resistances to management interventions. These concerns are representative of officers' needs and these needs should be identified and assessed for their impact on officer productivity. The officer needs should be recognized and considered when working with officers in problem-solving groups.
b. The administration should create management-officer problem-solving teams to identify solutions to inmate control problems. They should initiate a collaborative conflict resolution process using small groups of officers to identify solutions to the conflict between officer safety and security needs and needs of administration. The emphasis should be on "how inmates can be controlled positively" rather than "should inmates be controlled positively". The purpose of the problem-solving teams is to gain the commitment of officers to management policies by allowing officer participation, recognizing officer needs and creating realistic solutions to difficult situations.
c. Identify professional oriented officers who are opinion leaders in their group and include them in the problem-solving groups and as trainers and as FTO/Mentors.23
d. The administration should recognize that low staffing and inmate crowding significantly increases threats to officer safety and decreases officer control over inmate groups, the opportunity for positive officer-inmate interactions and the effect of Penitentiary programs and activities. Because these issues undermine administrative policymaking and the accountability system, the administration should make a major effort in procuring funds to increase staffing and reduce inmate crowding.

23 "Changing Correction Officers: A Demonstration Study", International Journal Of Criminology And Penology. September, P. Katsampes, 1974. This research shows that New York State Department of Corrections officers, after the Attica inmate riot in 1971, were studied while solving problems involving potentially violent situations. After officers participated in small group sessions and they were exposed to the ideas of opinion leaders who were in their peer group, the officers changed their ideas of how to handle a violent situation from a violent response to a non-violent response. There was a statistically significant change in 8 out of 9 situations..

P. Katsampes Report

Skinner v. Uphott, USDC of Wyoming, No. 02-CV-033B

Page 12

Summary In their depositions, Judith Uphoff and Vance Everett admitted that they had lost their ability to regulate staff behavior with respect to inmate safety - and staff behavior in general - due to the "culture" of the Penitentiary. Changing the culture of the Wyoming State Penitentiary represents a formidable task that will not be accomplished in the short term or without difficulty. Values of individuals that have been created over the years and that have been reinforced by group members and the nature of the job are not easily changed.
The following are recommendations to change the disruptive culture at WSP: • The National Institute of Corrections - Prisons Division has developed technical assistance (Training on Assessment of Institutional Culture) for assessing an agency's organizational culture. This assessment process should be WSP's first step in the overall sub-culture change strategy.
• The recruitment and selection of correction officers at WSP should be reviewed to ensure that the highest quality potential applicant available is contacted, screened and selected.
• A comprehensive training program should be developed that increases the amount of pre-service training and contact time with management. The formal stages of training provide significant opportunities to influence socialization. The process as well as the content of the training influences on the job behavior.
• A management accountability system should be established and maintained. The organization's mission, goals, policies and procedures should be clarified through training and practice. Management should clearly state the expectations of officers and state the consequences of violating agency policy. Management should implement a progressive disciplinary process for officer infractions. They should discipline violators and they should terminate repeat or serious offenders. Middle managers and supervisors who are part of the officer sub-culture should be removed from their positions. Managers and supervisors should be role models for appropriate and professional staff behavior.
• A strategy confronting the penitentiary officer informal socialization stage should be designed and implemented. Management should initiate a collaborative conflict resolution process using small groups of officers to identify solutions to the conflict between officer safety and security needs and needs of administration. The purpose of the problem-solving teams is to gain the commitment of officers to management policies by allowing officer participation, recognizing officer needs and creating realistic solutions to difficult situations. Professional oriented officers who are opinion leaders in their group should be included the problem-solving groups and management/officer decision-making.

P. Katsampos Report

Skinner v. Uphotf,USDC otWyoming, No. 02-CV-033B

Page 13

The recommendations include using different change strategies at different stages of the officer development process. The strategies consist of recruiting, training, discipline and management and officer collaborative problem solving. This represents a comprehensive approach to dealing with the officer sub-culture and the "code of silence." WSP's approach to changing the behavior of correction officers should include an effective and consistently maintained process of discipline for violations of policies and procedures as mandated by management. Programs and processes designed to create change cannot be effective without management's commitment to a disciplinary system and its involvement in the accountability process.

P. Katsampea Report

Skinner v. Uphott, USDC ot Wyoming, No. 02-CV-033B

Page 14

 
 ORIGINAL

Hoke MacMillan Attorney General
JohnW. Renneisen Deputy Attorney General
Steven R. Czoschke Senior Assistant Attorney General Herschler Building, 1st Floor West Cheyenne, WY 82002 (307) 777-7242 (307) 777-6329-facsimile
Attorneys for Defendants Uphoff, Everett, Hewitt and Ebell

2^2 0 ^ 2 3 Pi-! \-U0
o n •:;:!< U.S. UiSTRiCT COURT

Skinner v. Uphoff

• m

mm • • • • • •

PC-WY-003-004

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

BRAD SKINNER, on his own behalf, and on behalf of all other persons similarly situated,

Plaintiffs,

vs.

Civil Action No. 02-CV-033B

JUDITH UPHOFF; VANCE EVERETT; JAMES HEWITT; DAVID EBELL; and ) JOHN DOES 1 THROUGH 6; all in their individual and official capacities,

Defendants.

DEFENDANTS' REMEDIAL PLAN

COME NOW the Defendants, Judith Uphoff and Vance Everett, by and through their undersigned attorney, and hereby submit, pursuant to the Court's order of November 27,2002, their Remedial Plan ("Plan") intended to address and correct the violations outlined by the Court in its order.
INTRODUCTION On November 27,2002, this Court entered its Order Granting Plaintiffs Motion for Summary Judgment. The Court's Order addressed Plaintiffs Motion for Partial Summary Judgment on Class Claims. The Court's Order of November27 does not address the individual claims of the Plaintiff Brad Skinner, which claims remain unadjudicated. In the Court's Order of November 27, the Court granted summary judgment for the Plaintiffs on their class claims and ordered the parties to file proposed "Remedial Plans" which will "promptly and effectively abate the Eighth Amendment violations noted in this decision and reasonably protect against a repetition of those violations." The Court directed that the Remedial Plan "set forth the remedies that will be implemented, the manner of implementation, and a schedule of implementation."
THE DEFENDANTS' PLAN The Plaintiffs claim and the Court's Order analyzed the alleged Eighth Amendment violation in three parts:

"1. failure to adequately supervise and train subordinates in how to investigate and abate dangerous conditions; 2. failure to develop an effective internal review process for the reporting of policy violations; and 3. failure to discipline malfeasant employees,thereby substantiallyj eopardizing inmate safety." Without conceding the truth of the Plaintiffs allegations or the correctness of the Court's decision finding an Eighth Amendment violation by these Defendants, the Defendants submit the following Remedial Plan. Defendants have the right to appeal the decision of the Court and nothing in this submission is intended or shall be construed as a waiver of that right. Further, the individual claims of the Plaintiff, Brad Skinner, have not been adjudicated, the Defendants do not intend and nothing in this submission should be construed as an admission or concession of any fact or question of law which remains undecided in that litigation, including liability or damages. Finally, this entire litigation is governed by the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(a)(l)(A), as noted in the Court's Order of November 27,2002. The PLRA provides that with respect to prospective relief in any civil action respecting prison conditions the federal courts are without jurisdiction to order any relief which extends beyond what is necessary to correct the violation of the federal right of the

particular plaintiff or plaintiffs. Nothing in this submission is intended to grant to the court any authority beyond what is permitted by the PLRA.
Defendants believe their Plan goes beyond the minimum needed to resolve the issues that led to this action. Nevertheless, Defendants are willing to implement the changes outlined because they believe it is based upon good correctional practice.
OVERVIEW In response to the Court's Order granting.Plaintiffs' motion for summary judgment, the Wyoming Department of Corrections ("WDOC") has formulated a Remedial Plan ("Plan"), that addresses the three violations contained in the Court's order and which, when implemented, will reasonably protect inmates from harm resulting from assaults by other inmates at the Wyoming State Penitentiary ("WSP"). The Plan was prepared by the Director, Deputy Director, and Training Division Administrator of the WDOC, along with the'Warden of the WSP, and in consultation with George Camp, of Criminal Justice Solutions, Middletown, Connecticut. Consistent with the Court's Order, the Plan has two goals. They are: (1) to provide clear guidance to staff so they can respond appropriately to any known
threat of harm to an inmate at WSP; and (2) to ensure that staff involvement in protection from harm events is reported,
documented, reviewed, and appropriately responded to. The Plan is presented in three parts. They are:

(1) Development/Review/Revision of specific WDOC Policies, Administrative Regulations, and Director's Executive Orders;
(2) Training and Skill Development; and (3) Monitor and Track Policy Compliance and Staff Conduct with regard to Protection
from Harm at WSP. The Plan includes specific remedial tasks within each of the three parts of the Plan. Each task is further explained in terms of how it will be accomplished via specific subLtasks. Lastly, the Plan specifies the time frames within which each sub-task will be accomplished.
ANTICIPATED OUTCOMES Each of the eight tasks, and one sub-task contained in the Plan has an expected outcome, which cumulatively, will result in lessening the likelihood of harm to inmates at WSP. The outcomes associated with each of these tasks and sub-task are: (1) Clear, consistent, and constitutionally sound WDOC policies to guide staff conduct
and serve as the basis of lessons to be used in the training of WSP staff in their roles and responsibilities. (Related to all of Part 1 of the Plan.); (2) The presence of a trained, skilled person to impartially investigate and objectively assess staff involvement in protection from harm incidents at WSP. (Related to 1.3.2 of the Plan.);

(3) Immediate aotion to isolate inmates from real or perceived threats of harm will be accomplished by WSP staff. (Related to 2.1 of the Plan.);
(4) WDOC will have accurate and complete reports on all incidents involving issues of inmate harm. (Related to task 2.2 of the Plan.);
(5) Staff will remain knowledgeable as to their roles and responsibilities to reduce the risk of harm to inmates at WSP. (Related to task 2.3 of the Plan.);
(6) Appropriate, corrective action for staff misconduct, which may include disciplinary action will be taken. (Related to task 2.4 of the Plan.);
(7) Instances of staff misconduct or errors in judgment will be more readily reported, thoroughly investigated and appropriately resolved. (Related to task 2.5 of the Plan.);
(8) WDOC will know the extent td which Department policies are being followed and which portions of them require remedial action, thereby decreasing the likelihood of harm to inmates atWSP. (Related to task 3.1 of the Plan.);
(9) WDOC will have current and accurate records and reports on staff conduct and misconduct, as well as the Department's response to staff misconduct, associated with their involvement in preventing or breaking up inmate on inmate assaults at WSP. (Related to task 3.2 of the Plan.).

REPORTING Defendants will submit reports monthly to the Court on the status of its success in implementing the Plan.
CONCLUSION The Plan is consistent with the Court's stated expectation for a remedial plan. It addresses the Court's order in a practical and realistic manner as well as in a timely fashion. In addition, Defendants believe the Plan is achievable. Finally, the Department either has the resources or has identified realistic means of obtaining the resources necessary to implement the Plan. Respectfully submitted thisJ? 3 day of December, 2002.
ATTORNEYFORDEFENDANTSUPHOFF, EVERETT, HEWITT AND EBELL
Steven R. Czoschke/ J Senior Assistant Attorney General Herschler Building, 1st Floor West Cheyenne, WY 82002 (307) 777-7242

CERTIFICATE OF SERVICE
I, Steven R. Czoschke, do hereby certify that I have caused a true and correct copy of the Foregoing to be sent by First Class, postage prepaid, United States mail, on thisc22^f day of December, 2002, addressed to the following individuals:
Stephen L. Pevar ACLUF 32 Grand Street Hartford, CT 06106
Timothy C. Kingston Graves, Miller & Kingston 408 West 23rd Street Cheyenne, WY 82001
ATTORNEY GENERAL'S

TASK TIMELINE FORWDOC PLAN 'TO REMEDY PROTECTS1 FROM HARM ISSUES

Activity Name

Start Date

Finish Date

Duration 2002 ND

J

2003
FMA MJ J A S oN D

PART 1: DEVELOPMENT/REVIEW!REVISION OF THE

FOLLOWING DOC POLICIES, AR's, andDEO's

1.1 - Modify/ Merge/ Update theTemporary Restriction 12/25/02 1/7/03 10.00

V7

Order policy 3.305 (TRO) and the Protective Custody

policy 3.304 (PC). [Clarify roles and responsibilities

with regard to responding to requests for,or

determining the need for, protection.]

1.1.1 - Review, revise relevant WSP Operational 1/8/03 1/27/03 Procedures (OP's) to reflect these updated DOC policies.
1.2 - Develop Director's Executive Order (DEO) on 12/25/02 1/7/03 Delegation of Authority to Discipline Staff.
1.3 - Modify/Merge/U>date Incident Reporting (A.R. 11/27/02 1/7/03 1.004); Incident Reporting/ Initial Inquiries (DEO 02-003); and Reporting and Investigation of Major Incidents (A.R. 7.017] [Clarify roles/responsibilities in the process of reporting and reviewing violations Specify who is to report what by when and issues to be addressed ininternal reviews. Clarify roles/responsibilities in the process of reporting and reviewing violations.]

14.00
10.00 30.00

7 • •7

1.3.1 - Develop a WSP OP to reflect the updated 1/8/03 2/4/03 20.00

•7

policy(ies).

1.3.2 • Assign Responsibilities to the Investigator Position and oversee the hiring process
1.3.2.1 -Write Position Description Questionnaire (PDQ). (completed) 1.3.2.2 - Advertise Position, (completed)

11/1/02 4/28/03 11/1/02 11/15/02 11/19/02 12/11/02

127.00 10.00 17.00

2004 J FM

1.3.2.3 - Receive Applications from State's Personnel Division (A& I), (completed) 1.3.2.4 - Finalize Assessment Committee and Assess Applications. 1.3.2.5- Assessment Committee Conduct Interviews and DCI conducts background checks on finalists. 1.3.2.6 - Select Person and Offer Position.
1.3.2.7 - Starts Work at WDOC

12/17/02 12/17/02 12/18/02 1/14/03 1/15/03 3/11/03
3/12/03 3/18/03 4/1/03 4/28/03

1.00 20.00 40.00
5.00 20.00

V
•7 <v" • •
w

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Activity Name

Start Date

Finish Date

Duration 2002 ND

J

F

MA

2003 MJ J A

soN

D

1.3.2.7.1 - Develop manual and appropriate policies to guide investigations.

5/1/03 7/23/03

60.00

/ — •57

1.3.2.7.2 - Train selected staff at WSP in the 8/4/03 8/29/03 20.00

investigative process

2004 J FM

PART 2: TRAINING AND SKILL DEVELOPMENT OF WSP STAFF
2.1 - Train WSP staff on Revised TRO/PC, and on constitutional rights and case law (CR&CL) regarding protection of harm issues.
2.1.1 - Write lesson plans. [TRO. PC, CR&CL]

1/28/03 2/17/03

15.00

2.1.2- Establish Training Schedules

2/18/03 3/3/03

10.00

2.1.3 - Deliver the training todirect supervision staff [security and unit management]

3/4/03 7/7/03

2.1.4 - Deliver orientation/awareness trainingto remainder of WSP staff.
2.1.5 - Prepare monthly report on an on-going basis on who received/ who has not yet received training and send tothe Chief of Operations and the Warden.

3/4/03 12/29/03 4/7/03 3/26/04

2.1.6 - Maintain indefinitely record of training completion.
2.1.7- On an on-going basis Chief of Operations acknowledges receiptof monthly report and identfies items requiring follow-up tothe Director within seven (7) days. 2.1.8 - Deliver a training module annually on this topic as part of WSP's inservice training beginning in 2004.

3/4/03 3/22/04 4/7/03 3/26/04
1/5/04 12/24/04

90.00 215.00 255.00
275.00 255.00
255.00

^7 7

•• ••

v

2.2 - Provide training for WSP supervisors on the results of the modifications in 1.3.
2.2.1 - Develop a lesson plan.

2/5/03 2/25/03 15.00

2.2.2 - Establish Training schedule.

2/26/03 3/11/03 10.00

T7

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TASK TIMELINE FORWDOC PLAN 'TO REMEDY PROTECTIOhI FROM HARM SSUES

Activity Name

Start Date

Finish Date

Duration 2 0 0 2 ND

J

F MA

2003 MJ J A

S

oN

D

2.2.3 - Deliver the training to approximately 75 supervisors (Corporals through Warden).

3/12/03 7/15/03 90.00

• • • •7

2.2.4 - Prepare monthly report on an on-going basis 4/7/03 3/26/04 on who received/has not received training; submit to Chief of Operations and Warden

255.00

2.2.5 - Maintain indefinitely record of training

3/12/03 3/30/04 275.00

completion byemployee, course, date and lesson

•

plans on an on-going basis.

2.2.6 - On an on-going baasis Chief of Operations 3/7/03 3/25/04 275.00

acknowledges receipt ofmonthly report and within

seven (7) days identifies items requiring follow-up

•

by the Director.

2.2.7 - Deliver a training module annually on this 1/5/04 12/24/04 255.00

topic as part of WSP's in-service training beginning

in 2004.

2004 J FM

2.3 - On-going, in-service training for all WSP staff on their roles and responsibiities in investigations and

abating dangers based on agency outcomes and "lessons learned."

2.3.1 - Modify lesson plan.

12/1/03 12/12/03

10.00

2.3.2 - Establish In-Service Training schedule.

12/1/03 12/12/03 10.00

2.3.3 - Deliver the training toapproximately 75 supervisors (Corporals through Warden).
2.3.4 - Prepare monthly report on an on-going basis on who received/has not received training; submit to Chief of Operations and Warden
2.3.5 - Maintain record of training completion by employee, course, date and lesson plans on an on-going basis.
2.3.6 - On an on-going baasis Chief of Operations acknowledges receipt of monthly report and identifies within seven (7) days items requiring follow-up by the Director.

1/5/04 12/17/04 2/9/04 1/7/05 1/5/04 12/17/04 2/9/04 1/7/05

250.00 240.00 250.00 240.00

r<*7
MB

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TASK TIMELINE FOR WDOC PLAN "70 REMEDY PROTECTjOfvI FROM HARM ISSUES

Activity Name

Start Date

Finish Date

2002 Duration
ND

J

F MA

2003 MJ j A S

oN

D

2.4 - Train WSP supervisory staff on the new DEO as noted in 1.2regarding their specific duties in disciplining employees with regard towhen, and under what circumstances, to recommend to the Warden that disciplinary action be taken against employees determined to have violated protection from harm policies.

2.4.1 - Develop a lesson plan.

2/5/03 2/25/03 15.00

2004 J FM

2.4.2 - Establish Training schedule.

2/26/03 3/11/03 10.00

2.4.3 - Deliver the training to approximately 75 WSP 3/12/03 7/15/03

supervisors (Corporals through Warden).

2.4.4 - Prepare monthly report on an on-going basis 4/7/03 3/26/04

on who received/has not received training; submit

to Chief ofOperations and Warden

2.4.5 - Maintain indefinitely record of training

3/12/03 3/30/04

completion by employee, course, date and lesson

plans.

2.4.6 - On an on-going baasts Chief of Operations 4/7/03 3/26/04

acknowledges receipt ofmonthly report and within

seven (7) days identifies items requiring follcw-up

by the Director.

2.4.7 - Deliver a training module annually on this 1/5/04 12/24/04

topic aspart of WSP's inservice training beginning

in 2004.

90.00 255.00 275.00 255.00
255.00

«7
\m • • I mm

2.5 - Train WSP staff in WDOC Code of Ethics, Governor's Executive Orders related to expected conduct, and State Personnel rules relatedto expected conduct.
2.5.1 - Update Lesson Plan.

1/28/03 2/17/03

2.5.2 - Develop schedule to deliver training to all WSP staff. 2.5.3 - Deliver the trainhg to all WSP staff.

2/18/03 3/3/03 3/4/03 7/7/03

15.00 10.00 90.00

M7

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TASK TIMELINE FOR WDOC PLAN TO REMEDY PROTECTION FROM HARM ISSUES

Activity Name

Start Date

Finish Date

Duration 2002 ND

J

F MA

2003

M

jA

so

N

D

2.5.4 - Prepare monthly report on an on-going basis 4/7/03 3/26/04 on who received/has not received training; submit to Chief of Operations and Warden

255.00

2.5.5 - Maintain record of training completionby 3/4/03 3/29/04 280.00

*

employee, coirse, date and lesson plans on an

on-going basis.

2.5.6 - On an on-going baasis Chief of Operations 4/7/03 3/26/04 255.00 acknowledges receipt ofmonthly report and

identifies within seven (7) days items requiring follow-up by the Director. 2.5.7 - Deliver atraining module annually on this topic as part of WSP's inservice training beginning in 2004.

1/5/04 12/24/04

255.00

2004 J FM

PART 3: MONITOR/ TRACK)POUCYCOMPLIANCE AND STAFF CONDUCTWITHREGARD TOPROTECTION

FROM HARM ISSUES A TWSP.

3.1 - Establish Department Policy Monitoring and Compliance Office.

3.1.1. Designate and re-classify existing positionto the Office and assign existing staff to assist in the

completion of Office tasks.

3 . 1 . 1 . 1 - Write the PDQ's and classify the position, get approval from A&l

1/6/03 2/14/03

3.1.1.2 - Announce & Advertise Positions

2/17/03 2/28/03

3.1.1.3 - Receive Applicationsfrom A& 1.

3/3/03 3/3/03

3.1.1.4 - Finalize Assessment Committee and 3/4/03 3/31/03

Assess Applications.

3.1.1.5 - Assessment Committee Conduct

4/1/03 5/26/03

Interviews and DCl Runs Background Checks on

finalists.

3.1.1.6 - Select Person and Offer Position.

5/27/03 6/2/03

3.1.1.7- Start Work

6/3/03 6/30/03

3.1.2 - Develop protocol for monitoring compliance 6/2/03 8/1/03 with targeted policies.

30.00 10.00
1.00 20.00 40.00
5.00 20.00 45.00

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17
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TASK TIMELINE FOR WDOC PLAN TO REMEDY PROTECTION FROM HARM ISSUES

Activity Name

Start Date

Finish Date

Duration 2002 ND

j

3.1.3 - Establish schedule for auditing compliance 6/2/03 8/1/03 with protection from harm policies atWSP.

45.00

3.1.4 - Prepare monthly report and submittothe Director on an ongoing basis, on activities, audits conducted, and corrective action plans required. 3.1.5 - Create system to track recommendations and corrective action plan results contained in the reports.

7/7/03 3/26/04 6/2/03 8/1/03

190.00 45.00

3.1.6 - Conduct Audits at WSP on an on-going basis 8/4/03 3/26/04 170.00

2003
F MA MJ J A S o N D
\; —
?mm• H 7

2004 J FM

3.2 - Ensure that Corrective Action is Taken when Employees Violate DOC Policy, Rules, or State Personnel Rules Regarding Protection from Harm Incidents.
3.2.1 - Refine database and/or forms to track inmate on inmate assaults, and staff involved
3.2.1.1 - Refine system to track disciplinary action recommended and taken with regard to protection from harm events.
3.2.1.2 - Tabulate and assess actions involving employee discipline in regard to protection from harm every month on an on-going basis.
3.2.2 - Implement staff incentive program to encourage desired behaviors.

12/2/02 2/21/03 1/20/03 3/14/03 4/1/03 3/22/04 1/6/03 5/9/03

60.00 40.00 255.00 90.00

•• • S? •7
mm mm «7

N D J F MA MJ J A S oN D J F M

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12/18/02 2:45 PM

 
 Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 1 of 28
PROTO,PUBLD,TERMED
U.S. District Court District of Wyoming (Cheyenne) CIVIL DOCKET FOR CASE #: 2:02−cv−00033−CAB

Skinner v. Uphoff, et al Assigned to: Honorable Clarence A Brimmer Demand: $0 Case: 2:07−cv−00193−CAB
Case in other court: USCA, 04−08076
10th Circuit, 04−08088
USCA, 05−08098 Cause: 42:1983 Civil Rights Act
Plaintiff
Brad Skinner on his own behalf and on behalf of all other persons similarly situated

Date Filed: 02/15/2002 Date Terminated: 08/07/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Shirley Kingston 418 South 12th Street Laramie, WY 82070 307/745−3729 Email: greenkingston@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L Pevar AMERICAN CIVIL LIBERTIES UNION 2074 Park Street Hartford, CT 06106 860/570−9830 Fax: 860/570−9840 Email: pevaraclu@aol.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy C Kingston LAW OFFICE OF TIM KINGSTON LLC 408 West 23rd Street, Suite 1 Cheyenne, WY 82001 307/638−8885 Fax: 307/637−4850 Email: kingston@rockymtnlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Judy Uphoff individually, for purposes of plaintiff's individual claim TERMINATED: 02/01/2006

represented by Craig E Kirkwood WYOMING ATTORNEY GENERAL Herschler Building, 1st Floor NW Cheyenne, WY 82002 307/777−7242 Fax: 307/777−6329 Email: ckirkw@state.wy.us TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco WYOMING ATTORNEY GENERAL'S OFFICE

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 2 of 28

Water &Natural Resources Division 123 Capitol Building Cheyenne, WY 82002 307/777−7977 TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Delicath WYOMING ATTORNEY GENERAL'S OFFICE 123 Capitol Building Cheyenne, WY 82002 307/777−7818 Fax: 307/777−5034 Email: dave.delicath@wyo.gov TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero WYOMING ATTORNEY GENERAL Herschler Building, 1st Floor NW Cheyenne, WY 82002 307/777−7841 Fax: 777−6329 TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen WYOMING ATTORNEY GENERAL'S OFFICE Herschler Building, 1st Floor NW Cheyenne, WY 82002 307/777−5457 Fax: 307/777−6329 Email: jrenne@state.wy.us TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke WYOMING ATTORNEY GENERAL Herschler Building, 1st Floor NW Cheyenne, WY 82002 307/777−7841 Fax: 777−6329 TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Vance Everett individually, for purposes of plaintiff's individual claim TERMINATED: 02/01/2006

represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 3 of 28

Defendant James Hewitt individually, for purposes of plaintiff's individual claim TERMINATED: 02/01/2006
Defendant

David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 4 of 28

David Ebell individually, for purposes of plaintiff's individual claim TERMINATED: 02/01/2006

Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wyoming Department of Corrections State Penitentiary Complex Administrator in his official capacity, for purposes of plaintiff's individual claim TERMINATED: 02/01/2006 also known as Vance Everett TERMINATED: 02/01/2006

represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen (See above for address) TERMINATED: 02/01/2006

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 5 of 28

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wyoming Department of Corrections State Penitentiary Security Officer in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim TERMINATED: 02/01/2006 also known as James Hewitt TERMINATED: 02/01/2006

represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wyoming Department of Corrections State Penitentiary Security Officer in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim TERMINATED: 02/01/2006 also known as David Ebell TERMINATED: 02/01/2006

represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 6 of 28

Defendant Wyoming Department of Corrections State Penitentiary Warden in his official capacity for purposes of plaintiff's class claim TERMINATED: 02/01/2006 also known as Scott Abbott TERMINATED: 02/01/2006
Defendant WYDOC Director in her official capacity for the purpose of plaintiff's individual claim TERMINATED: 02/01/2006 also known as Judy Uphoff TERMINATED: 02/01/2006

John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Delicath (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David L Delicath

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 7 of 28

(See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
WYDOC Director in his official capacity for the purpose of plaintiff's class claim TERMINATED: 02/01/2006 also known as Robert E Ortega TERMINATED: 02/01/2006

represented by Craig E Kirkwood (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Michael Fetsco (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francisco L Romero (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John W Renneisen (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Richard Czoschke (See above for address) TERMINATED: 02/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wyoming Department of Corrections Director in his official capacity also known as Robert Lampert

represented by John W Renneisen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 8 of 28

Wyoming Department of Corrections State Penitentiary Warden in his official capacity also known as Judy Uphoff TERMINATED: 09/13/2006 also known as Michael Murphy

John W Renneisen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/15/2002 02/25/2002 03/01/2002 03/12/2002 03/12/2002 03/12/2002 03/15/2002 03/15/2002 03/15/2002 03/15/2002
03/25/2002
04/03/2002 04/08/2002
04/12/2002
04/12/2002 04/16/2002
04/16/2002 04/17/2002

# Docket Text
1 COMPLAINT (summons(es) issued) filing fee paid − $150.00 receipt # 296998 (dn) (Entered: 02/19/2002)
2 RETURN OF SERVICE executed upon defendant Judy Uphoff, WYDOC Director on 2/21/02 (dn) (Entered: 02/26/2002)
3 NOTIFICATION OF COMPLEXITY OF CASE by plaintiff; the case is complex (dn) (Entered: 03/01/2002)
4 ATTORNEY APPEARANCE for defendants by Steven Richard Czoschke, Senior Assistant Wyoming Attorney General (dn) (Entered: 03/12/2002)
5 ANSWER with affirmative defenses by defendants to complaint [1−1] (dn) (Entered: 03/12/2002)
6 NOTIFICATION OF COMPLEXITY OF CASE by defendants; the case is non−complex (dn) (Entered: 03/12/2002)
7 RETURN OF SERVICE executed upon defendant James Hewitt, WYDOC SP Sec Off on 2/22/02 (dn) (Entered: 03/15/2002)
8 RETURN OF SERVICE executed upon defendant David Ebell, WYDOC SP Sec Off on 2/22/02 (dn) (Entered: 03/15/2002)
9 RETURN OF SERVICE executed upon defendant Vance Everett, WYDOC SP Complex Adm on 2/22/02 (dn) (Entered: 03/15/2002)
10 NOTICE: initial pretrial conference set on 4/24/02 at 9:00am in Cheyenne before Magistrate Judge William C. Beaman (cc: all counsel 3/15/02) (dn) (Entered: 03/15/2002)
11 MOTION by plaintiff for leave to serve additional interrogatories AND BRIEF IN SUPPORT referred to Magistrate Judge William C. Beaman (dn) (Entered: 03/25/2002)
12 ATTORNEY APPEARANCE for plaintiff by Shirley Kingston (dn) (Entered: 04/03/2002)
13 MOTION by plaintiff to exceed page limitation re motion for class certification and brief in support referred to Magistrate Judge William C. Beaman (dn) (Entered: 04/08/2002)
14 ORDER by Magistrate Judge William C. Beaman granting motion to exceed page limitation re motion for class certification and brief in support [13−1] (cc: all counsel 4/12/02) (dn) (Entered: 04/12/2002)
15 MOTION by plaintiff to certify class action with brief in support (dn) (Entered: 04/12/2002)
16 ORDER by Magistrate Judge William C. Beaman granting motion for leave to serve additional interrogatories [11−1] (cc: all counsel 4/17/02) (dn) (Entered: 04/16/2002)
17 RESPONSE in opposition by defendants to motion to certify class action [15−1] (dn) (Entered: 04/17/2002)
18 NOTICE setting hearing before Honorable Clarence A. Brimmer on the motion to certify class action [15−1] at 10:00am on 6/24/02 in Cheyenne (cc: all counsel

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 9 of 28

04/18/2002 04/22/2002 04/24/2002
04/24/2002 04/29/2002 04/29/2002
05/01/2002 05/02/2002 05/13/2002 05/14/2002 05/14/2002 05/14/2002
05/15/2002 05/16/2002 05/16/2002 06/03/2002 06/13/2002 08/05/2002

4/17/02) (dn) (Entered: 04/17/2002)
19 MOTION by plaintiff for attorney Stephen L Pevar to appear pro hac vice referred to Magistrate Judge William C. Beaman (dn) (Entered: 04/18/2002)
20 ORDER by Magistrate Judge William C. Beaman denying motion for attorney Stephen L Pevar to appear pro hac vice [19−1] (cc: all counsel 4/23/02) (dn) (Entered: 04/23/2002)
21 NOTICE setting hearing before Honorable Clarence A. Brimmer on the motion to certify class action [15−1] at 10:30 5/15/02 in Cheyenne; hearing set on 6/24/02 at 10:00am has been vacated (cc: all counsel faxed 4/24/02) (jlg) (Entered: 04/24/2002)
INITIAL PRETRIAL conference held (jg) (Entered: 04/26/2002)
22 REPLY BRIEF by plaintiff re motion for class certification [15−1] (dn) (Entered: 04/29/2002)
23 INITIAL PRETRIAL CONFERENCE ORDER by Honorable William C Beaman Stephen L Pevar admitted pro hac vice; motion filing deadline is 8/9/02 ; dispositive motion hearing set on 9/12/02 at 9:15am in Cheyenne; plaintiff designation ddl is 6/24/02 ; defendant designation ddl is 7/26/02 ; discovery deadline is 8/9/02 ; stipulation deadline is 8/16/02 ; final pretrial conference set on 10/23/02 at 9:15am in Cheyenne ; non−jury trial set on 11/12/02 at 9:30am in Cheyenne (#1/4−5 days) (cc: all counsel 4/30/02) (dn) Modified on 05/10/2002 (Entered: 04/30/2002)
24 MOTION by plaintiff for attorney Stephen L Pevar to appear pro hac vice referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/01/2002)
Docket Modification (Utility Event) finding the motion for attorney Stephen L Pevar to appear pro hac vice [24−1] moot; see order on initial pretrial conference (dn) (Entered: 05/02/2002)
25 JOINT MOTION by defendants and plaintiff to amend initial pretrial conference order referred to Magistrate Judge William C. Beaman (jlg) (Entered: 05/13/2002)
26 MOTION by defendants to reset final pretrial conference (dn) (Entered: 05/14/2002)
27 ORDER by Magistrate Judge William C. Beaman granting motion to amend initial pretrial conference order [25−1] (cc: all counsel 5/15/02) (dn) (Entered: 05/14/2002)
Docket Modification (Utility Event) plaintiff designation ddl extended to 7/8/02 ; defendant designation ddl extended to 8/9/02 ; discovery deadline extended to 8/23/02 ; motion filing deadline extended to 8/23/02 ; stipulation deadline extended to 8/30/02 (dn) (Entered: 05/14/2002)
28 COURTROOM MINUTES: hearing held on motion to certify class action [15−1] − motion conditionally granted ( Ct Rptr: Mullivan ) (dn) (Entered: 05/15/2002)
Docket Modification (Utility Event) finding the motion to reset final pretrial conference [26−1] moot (dn) (Entered: 05/16/2002)
29 NOTICE final pretrial conference re−set to 10/17/02 at 9:15am in Cheyenne (cc: all counsel 5/16/02) (dn) (Entered: 05/16/2002)
30 STIPULATED PROTECTIVE ORDER by Magistrate Judge William C. Beaman (cc: all counsel 6/4/02) (dn) (Entered: 06/04/2002)
31 JOINT MOTION by defendants and plaintiff to extend deadlines and continue trial date referred to Magistrate Judge William C. Beaman (dn) (Entered: 06/13/2002)
32 ORDER by Honorable Clarence A. Brimmer granting motion to certify class action [15−1]; Court conditionally certifies this action as a class action and will revisit this conditional certification at the dispositive motions hearing (cc: all counsel 8/5/02) (dn) (Entered: 08/05/2002)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 10 of 28

08/13/2002 08/14/2002
08/20/2002 10/17/2002 10/18/2002 10/21/2002 10/25/2002 10/25/2002 10/30/2002 10/30/2002 11/06/2002 11/06/2002 11/06/2002 11/07/2002 11/08/2002 11/08/2002 11/12/2002 11/12/2002 11/12/2002 11/15/2002

33 RENEWED JOINT MOTION by defendants and plaintiff to extend deadlines and for continuance of trial referred to Magistrate Judge William C. Beaman (dn) (Entered: 08/13/2002)
34 ORDER by Honorable Clarence A. Brimmer granting renewed motion to extend deadlines and for continuance of trial [33−1]; extending the motion filing deadline to 10/30/02; continuing dispositive motion hearing to 11/8/02 at 9:30am ; continuing final pretrial conference to 1/23/03 at 9:15am in Cheyenne ; continuing non−jury trial to 2/17/03 at 9:30am in Cheyenne (#1), finding the motion to extend deadlines and continue trial date [31−1] moot discovery deadline extended to 10/15/02 (cc: all counsel 8/14/02) (dn) Modified on 09/16/2002 (Entered: 08/14/2002)
PUBLISHED order granting conditional class certification [32−1] (dn) (Entered: 08/20/2002)
35 REQUEST by defendants for settlement conference (dn) (Entered: 10/17/2002)
36 MOTION AND BRIEF IN SUPPORT by plaintiff to exceed page limitation referred to Magistrate Judge William C. Beaman (jlg) (Entered: 10/21/2002)
37 ORDER by Magistrate Judge William C. Beaman granting motion to exceed page limitation [36−1]; plaintiff's brief should not exceed 45 pages (cc: all counsel mld 10/21/02) (jlg) (Entered: 10/21/2002)
38 MOTION by plaintiff for summary judgment (dn) (Entered: 10/25/2002)
39 MEMORANDUM by plaintiff in support of motion for summary judgment [38−1] (dn) (Entered: 10/25/2002)
40 RESPONSE/BRIEF by plaintiff to motion for settlement conference [35−1] (jlg) (Entered: 10/30/2002)
41 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by plaintiff (jlg) (Entered: 10/30/2002)
42 RESPONSE by defendants Everett and Uphoff to motion for summary judgment [38−1] (jlg) (Entered: 11/07/2002)
43 AFFIDAVIT of Judith Uphoff in support of response to plaintiff's motion for summary judgment [42−1] (jlg) (Entered: 11/07/2002)
44 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by defendants Everett and Uphoff to motion for summary judgment [38−1] (jlg) (Entered: 11/07/2002)
45 MOTION by plaintiff for leave to file plaintiff's supplemental authority (jlg) (Entered: 11/08/2002)
46 MINUTES: motion for summary judgment [38−1] taken under advisement; plaintiff to file original depositions with court dispositive motion hearing on 11/8/02 ( Ct Rptr: Dew−Harris ) (jlg) (Entered: 11/12/2002)
47 MOTION by plaintiff to compel referred to Magistrate Judge William C. Beaman (jlg) (Entered: 11/12/2002)
DEPOSITION of Judith Uphoff taken by plaintiff on 7/29/02, 7/30/02, 8/19/02, 8/20/02 (consists of 4 volumes) (dn) Modified on 11/12/2002 (Entered: 11/12/2002)
DEPOSITION of Allen Klinefelter taken by plaintiff on 8/22/02 (dn) (Entered: 11/12/2002)
DEPOSITION of Vance Wayne Everett taken by plaintiff on 8/21/02 (dn) (Entered: 11/12/2002)
48 RESPONSE by defendants to plaintiff's motion to compel [47−1] (dn) (Entered: 11/18/2002)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 11 of 28

11/25/2002 11/27/2002
12/03/2002 12/12/2002 12/12/2002
12/13/2002 12/23/2002 12/26/2002 12/26/2002
12/31/2002 12/31/2002 01/06/2003
01/07/2003 01/14/2003 01/14/2003 01/14/2003 01/15/2003 01/15/2003

49 REPLY BRIEF by plaintiff re plaintiff's motion to compel [47−1] (dn) (Entered: 11/25/2002)
50 ORDER by Honorable Clarence A. Brimmer granting plaintiff's motion for summary judgment on the 8th amendment claim [38−1]; declaratory and injunctive relief shall be ordered after terms of the remedial plan have been determined by the Court (cc: all counsel 11/27/02) (dn) (Entered: 11/27/2002)
PUBLISHED order on summary judgment [50−1] (dn) (Entered: 12/03/2002)
51 MOTION by defendants to extend deadline for submission of proposed remedial plan (dn) (Entered: 12/12/2002)
52 ORDER by Honorable Clarence A. Brimmer granting motion to extend deadline for submission of proposed remedial plan [51−1]; proposed remedial plans to be filed by 12/24/02; 14−day comment period to commence on 12/25/02 (cc: faxed to plaintiff's counsel 12/13/02; mailed to Shirley Kingston 12/13/02; faxed to WYAG 12/12/02) (dn) Modified on 12/13/2002 (Entered: 12/13/2002)
53 ORDER RULING ON PLAINTIFFS' MOTION TO COMPEL by Magistrate Judge William C. Beaman; it is ordered that plaintiffs' motion to compel [47−1] is granted (cc: all counsel mld 12/19/02) (jlg) (Entered: 12/19/2002)
54 NOTICE by defendants of submission of remedial plan (dn) (Entered: 12/23/2002)
55 NOTICE by plaintiff of submission of proposed remedial plan (dn) (Entered: 12/26/2002)
56 ORDER EXTENDING TIME FOR REMEDIAL PLAN COMMENTS by Honorable Clarence A. Brimmer; parties to file their respective comments on the other party's proposed remedial plan by 1/28/03 (cc: all counsel by fax 12/26/02) (dn) (Entered: 12/26/2002)
57 MOTION by plaintiff for order modifying order granting extension of time filed on 12/26/02 (dn) Modified on 01/02/2003 (Entered: 01/02/2003)
58 MOTION by plaintiff for order modifying order granting plaintiff's motion to compel filed on 12/13/02 referred to Magistrate Judge William C. Beaman (dn) (Entered: 01/02/2003)
59 ORDER by Honorable Clarence A. Brimmer granting motion for order modifying order granting extension of time filed on 12/26/02 [57−1]; it is ordered that the 12/26/02 order be modified to impose a deadline of 1/17/03 by which date the parties must file their respective responses to each other's proposed remedial plans (cc: all counsel faxed 1/6/03) (jlg) (Entered: 01/06/2003)
60 ORDER by Magistrate Judge William C. Beaman granting motion for order modifying order granting plaintiff's motion to compel filed on 12/13/02 [58−1] (cc: all counsel faxed 1/7/03) (jlg) Modified on 01/10/2003 (Entered: 01/08/2003)
61 MOTION by plaintiff for order to hold defendants in contempt of Court referred to Magistrate Judge William C. Beaman (dn) (Entered: 01/14/2003)
62 MOTION by plaintiff for leave to obtain limited additional discovery referred to Magistrate Judge William C. Beaman (dn) (Entered: 01/14/2003)
63 RESPONSE by defendants to motion for order to hold defendants in contempt of Court [61−1] (dn) (Entered: 01/14/2003)
64 JOINT MOTION by defendant and plaintiff to extend deadline to file objections to proposed remedial plans (dn) (Entered: 01/15/2003)
65 ORDER by Honorable Clarence A. Brimmer granting joint motion to extend deadline to file objections to proposed remedial plans [64−1]; date for comment on proposed remedial plans extended to 3/17/03; defendants to submit to plaintiffs a draft joint remedial plan by 1/31/03, plaintiffs to submit comments to defendants by 2/17/03, parties to submit joint proposed remedial plan or objections thereto to the Court by 3/17/03 (cc: all counsel 1/15/03) (dn) (Entered: 01/15/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 12 of 28

01/15/2003 01/17/2003 01/17/2003 01/21/2003
01/21/2003 01/24/2003
01/30/2003 01/31/2003
01/31/2003 01/31/2003 01/31/2003 02/03/2003
02/18/2003 02/24/2003 03/05/2003 03/07/2003 03/07/2003
03/13/2003 03/14/2003

66 RESPONSE by defendants to plaintiff's motion for leave to obtain limited additional discovery [62−1] (dn) (Entered: 01/15/2003)
67 PRETRIAL MEMORANDUM/BRIEF by plaintiff (dn) (Entered: 01/17/2003)
68 PRETRIAL MEMORANDUM by defendants (dn) (Entered: 01/17/2003)
69 ORDER by Honorable Clarence A. Brimmer granting limited additional discovery [62−1] and striking trial date jury trial set for 2/17/03 vacated ; plaintiff may have limited discovery for the next 30 days to take no more than five depositions and submit written interrogatories and requests for production of documents to defendants, defendants to respond within 10 days after receipt of written discovery; 2/17/03 trial date stricken, new date to be set at a later time (cc: all counsel 1/21/03) (dn) (Entered: 01/21/2003)
70 REPLY by plaintiff to response to motion for order to hold defendants in contempt of Court [61−1] (jlg) (Entered: 01/22/2003)
71 SCHEDULING ORDER AND ORDER AMENDING CAPTION by Honorable Clarence A. Brimmer supplemental final pretrial conference set on 3/20/03 at 9:15am in Cheyenne ; jury trial set on 6/16/03 at 9:30am in Cheyenne; caption to be amended to remove the phrase "and John Does 1 through 6" as plaintiff has dismissed these defendants (cc: all counsel 1/24/03) (dn) (Entered: 01/24/2003)
72 ORDER by Magistrate Judge William C. Beaman denying motion to hold defendants in contempt of Court [61−1] (cc: all counsel 1/31/03) (dn) (Entered: 01/30/2003)
73 ATTORNEY APPEARANCE for defendants WYDOC Director, Judy Uphoff, Vance Everett, WYDOC SP Complex Adm, James Hewitt, WYDOC SP Sec Off, David Ebell, WYDOC SP Sec Off by Craig E Kirkwood, Senior Assistant Wyoming Attorney General (dn) (Entered: 01/31/2003)
74 ATTORNEY APPEARANCE for defendants by Francisco L Romero, Assistant Wyoming Attorney General (dn) (Entered: 01/31/2003)
75 ATTORNEY APPEARANCE for defendants by John W Renneisen, Deputy Wyoming Attorney General (dn) (Entered: 01/31/2003)
76 STIPULATION extending deadline on a portion of the Court's order to compel (dn) (Entered: 01/31/2003)
77 ORDER by Magistrate Judge William C. Beaman granting stipulation extending deadline on a portion of the Court's order to compel [76−1]; defendants may have 5 weeks from date of stipulation to produce documents described in paragraph 2 (cc: all counsel 2/3/03) (dn) (Entered: 02/04/2003)
78 MOTION by defendants for order of protection from further additional discovery referred to Magistrate Judge William C. Beaman (dn) (Entered: 02/19/2003)
79 RESPONSE by plaintiff to motion for order of protection from further additional discovery [78−1] (dn) (Entered: 02/24/2003)
80 ORDER by Magistrate Judge William C. Beaman denying without prejudice the defendants' motion for order of protection from further additional discovery [78−1] (cc: all counsel 3/5/03) (dn) (Entered: 03/06/2003)
81 JOINT MOTION by defendants and plaintiff to extend deadline to file joint remedial plan (dn) (Entered: 03/07/2003)
82 ORDER by Honorable Clarence A. Brimmer granting motion to extend deadline to file joint remedial plan [81−1]; deadline for comment is extended to 4/16/03, deadline for submission of plan or objections thereto extended to 4/16/03 (cc: counsel 3/7/03) (dn) (Entered: 03/07/2003)
83 PRETRIAL MEMORANDUM/BRIEF by plaintiff (dn) (Entered: 03/13/2003)
84 PRETRIAL BRIEF by defendants (dn) (Entered: 03/17/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 13 of 28

03/21/2003
03/25/2003 03/27/2003 04/07/2003 04/10/2003 04/10/2003 04/10/2003 04/14/2003 04/16/2003
04/24/2003 04/25/2003 04/29/2003 04/30/2003 04/30/2003 05/01/2003 05/06/2003 05/06/2003 05/06/2003

85 ORDER ON SUPPLEMENTAL FINAL PRETRIAL CONFERENCE by Honorable Clarence A. Brimmer supplemental final pretrial conference held 3/20/03; plaintiff's motion to amend complaint to include claims for punitive damages granted, defendants have to 5/1/03 to withdraw admissions of liability and deliberate indifference, plaintiff to file interrogatories concerning all unanswered inquiries sent to defendants' counsel via e−mail by Mr Pevar by 3/27/03, defendant to file formal responses by 4/1/03, caption amended to read "Judith Uphoff, Vance Everett, James Hewitt and David Ebell, all in their individual and official capacities for purposes of plaintiff's individual claim, and Robert Ortega, Scott Abbott, James Hewitt and David Ebell, all in their official capacities for purposes of plaintiff's class claim; defendants to file brief on admissibility of subsequent remedial measures taken by the Wyoming State Penitentiary by 5/15/03, plaintiff to file response by 6/1/03; matter referred to Magistrate Judge Beaman for a settlement conference (cc: all counsel 3/21/03) (dn) (Entered: 03/21/2003)
86 ORDER FOR SETTLEMENT CONFERENCE by Judge Clarence A Brimmer settlement conference set on 5/6/03 at 8:30am before Magistrate Judge William C. Beaman (cc: all counsel 3/25/03) (dn) (Entered: 03/25/2003)
87 NOTICE by plaintiff of filing post−hearing interrogatories (dn) (Entered: 03/28/2003)
88 ORDER VACATING SETTLEMENT CONFERENCE by Magistrate Judge William C. Beaman settlement conference set on 5/6/03 vacated (cc: all counsel 4/7/03) (dn) (Entered: 04/08/2003)
89 MEMORANDUM by defendants to Court regarding responses to plaintiff's post−hearing interrogatories (dn) (Entered: 04/11/2003)
90 RESPONSE/ANSWER by defendants to post−hearing interrogatories [87−1] (dn) (Entered: 04/11/2003)
91 RESPONSE/ANSWER by defendant WYDOC SP Warden Scott Abbott to plaintiffs' post−hearing interrogatories [87−1] (dn) (Entered: 04/11/2003)
92 JOINT MOTION by all defendants and plaintiff to extend deadline to file joint remedial plan (dn) (Entered: 04/15/2003)
93 ORDER by Honorable Clarence A. Brimmer granting motion to extend deadline to file joint remedial plan [92−1]; plan to be filed by 5/7/03, parties may file a brief explaining their positions on issues which they were not able to reach agreement on by 5/16/03 (cc: counsel 4/16/03) (dn) (Entered: 04/16/2003)
94 MOTION by plaintiff to hold defendants in contempt (dn) (Entered: 04/24/2003)
95 SUBMISSION AND MOTION by defendants for order for court guidance re waiver of attorney−client and work product privilege referred to Magistrate Judge William C. Beaman (jlg) (Entered: 04/28/2003)
96 SETTLEMENT STATEMENT by defendants (jlg) (Entered: 04/30/2003)
97 MOTION by defendant for order to include documents under protective order referred to Magistrate Judge William C. Beaman (jlg) (Entered: 05/01/2003)
98 RESPONSE by defendant to motion to hold defendants in contempt [94−1] (jlg) (Entered: 05/01/2003)
99 ORDER FOR SETTLEMENT CONFERENCE by Honorable Clarence A. Brimmer settlement conference set on 5/27/03 at 8:30am before Magistrate William C. Beaman (cc: all counsel mld 5/1/03) (jlg) (Entered: 05/01/2003)
100 RESPONSE by plaintiff to defendant's submission [95−1] AND (dn) (Entered: 05/07/2003)
100 MOTION by plaintiff for Court guidance referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/07/2003)
101 APPENDIX filed by plaintiff re response to defendants' submission and motion for Court guidance [100−1] (dn) (Entered: 05/07/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 14 of 28

05/06/2003 05/06/2003 05/07/2003
05/07/2003 05/07/2003 05/13/2003 05/13/2003 05/14/2003 05/16/2003 05/16/2003 05/16/2003 05/16/2003
05/16/2003 05/19/2003
05/19/2003 05/19/2003 05/19/2003 05/19/2003 05/20/2003
05/22/2003 05/23/2003 05/23/2003 05/23/2003

102 MOTION by plaintiff to enforce compliance with Local Rule 16.2(b)(1) referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/07/2003)
103 MOTION by plaintiff for protective order referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/07/2003)
104 RESPONSE by defendants Judy Uphoff, Vance Everett, James Hewitt, David Ebell, WYDOC SP Sec Off, WYDOC SP Sec Off, WYDOC SP Complex Adm, WYDOC Director to motion for protective order [103−1] (dn) (Entered: 05/07/2003)
105 NOTICE by all defendants of filing second proposed remedial plan (dn) (Entered: 05/07/2003)
106 MEMORANDUM by all defendants regarding second proposed remedial plan [105−1] (dn) (Entered: 05/07/2003)
107 REPLY BRIEF by plaintiff re contempt motion [94−1] (dn) (Entered: 05/14/2003)
108 REPLY BRIEF by plaintiff re motion for protective order [103−1] (dn) (Entered: 05/14/2003)
VERBAL NOTICE OF SETTLEMENT of damages portion of case only as per Craig Kirkwood (dn) Modified on 05/14/2003 (Entered: 05/14/2003)
109 BRIEF by plaintiff regarding the remedial plan [105−1] (dn) (Entered: 05/19/2003)
110 RESPONSE by plaintiff to defendants' motion for protective order [103−1] (dn) (Entered: 05/19/2003)
111 SUGGESTION by plaintiff of mootness (dn) (Entered: 05/19/2003)
Docket Modification (Utility Event) finding the motion to enforce compliance with Local Rule 16.2(b)(1) [102−1] moot (see document #111) (dn) (Entered: 05/19/2003)
112 RESPONSE by defendants to plaintiff's objections to defendants' second proposed remedial plan [109−1] (dn) (Entered: 05/19/2003)
113 ORDER by Magistrate Judge William C. Beaman vacating settlement conference set on 5/27/03 before Magistrate Judge William C. Beaman (cc: all counsel by fax 5/19/03) (dn) (Entered: 05/19/2003)
114 NOTICE by plaintiff of filing supplemental interrogatories (pursuant to Court order of 3/21/03) (dn) (Entered: 05/20/2003)
115 RESPONSE by defendants to plaintiff's reply brief re contempt motion [107−1] (dn) (Entered: 05/20/2003)
116 REPLY (RESPONSE) by defendants to plaintiff's reply to defendants' motion to include documents under protective order [110−1] (dn) (Entered: 05/20/2003)
117 REPLY by defendants to plaintiff's reply brief re motion for protective order [108−1] (dn) (Entered: 05/20/2003)
118 ORDER REQUIRING DEFENDANTS TO PROVIDE RULE 26 CERTIFICATION by Magistrate Judge William C. Beaman re motion for protective order [103−1] (cc: all counsel 5/20/03 by fax) (dn) (Entered: 05/20/2003)
119 CERTIFICATE OF COMPLIANCE by defendants with Court's order requiring defendants to provide Rule 26 certification (dn) (Entered: 05/23/2003)
120 MOTION by plaintiff for judicial notice (dn) (Entered: 05/23/2003)
121 MOTION by plaintiff to modify the Court's order of 5/20/2003 referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/23/2003)
122 MOTION by plaintiff to supplement the record referred to Magistrate Judge William C. Beaman (dn) (Entered: 05/23/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 15 of 28

05/23/2003 05/27/2003 05/30/2003 06/02/2003 06/05/2003 06/06/2003 06/09/2003 06/09/2003
06/10/2003 06/10/2003 06/12/2003 06/19/2003 06/19/2003
06/19/2003 06/19/2003 06/19/2003 06/25/2003 06/27/2003 07/01/2003

123 JOINT MOTION by defendants and plaintiff to vacate trial date (dn) (Entered: 05/27/2003)
124 RESPONSE by defendants to plaintiff's motion to modify the Court's order of 5/20/2003 [121−1] (dn) (Entered: 05/28/2003)
125 ORDER by Honorable Clarence A. Brimmer granting motion to vacate trial date [123−1] jury trial set for 6/16/03 vacated (cc: all counsel 5/30/03) (dn) (Entered: 05/30/2003)
126 ORDER by Magistrate Judge William C. Beaman denying without prejudice plaintiffs' motion to modify the Court's order of 5/20/2003 [121−1] (cc: all counsel 6/2/03) (dn) (Entered: 06/03/2003)
TRANSCRIPT of supplemental final pretrial held on 3/20/03 cert cy (js) (Entered: 06/05/2003)
127 MOTION by plaintiff for injunctive relief (dn) (Entered: 06/06/2003)
128 ORDER by Honorable Clarence A. Brimmer granting motion to supplement the record [122−1]; plaintiff may submit "Exhibit E" into evidence (cc: all counsel 6/9/03) (dn) (Entered: 06/10/2003)
129 ORDER by Honorable Clarence A. Brimmer granting motion for Court to take judicial notice [120−1] re characterization of Greenholtz v Inmates of Nebraska Penal and Correctional Complex (cc: all counsel 6/9/03) (dn) (Entered: 06/10/2003)
130 MOTION by plaintiff to renew contempt motion (dn) (Entered: 06/10/2003)
131 MOTION by plaintiff to dismiss/withdraw motion for injunctive relief (dn) (Entered: 06/10/2003)
132 NOTICE setting hearing before Honorable Clarence A. Brimmer on the motion to renew contempt motion [130−1] and any other pending matters at 2:15pm on 7/1/03 in Cheyenne (cc: all counsel 6/12/03) (dn) (Entered: 06/12/2003)
133 ORDER by Magistrate Judge William C. Beaman finding the motion for protective order [103−1] moot (cc: all counsel mld 6/19/03) (jlg) (Entered: 06/19/2003)
134 ORDER by Magistrate Judge William C. Beaman denying motion for order for court guidance re waiver of attorney−client and work product privilege [95−1]; it is ordered that Mr Renneisen and his associates be directed to return to plaintiff's counsel, Steven Pevar, any and all copies of defense motion exhibit "A" in their possession and refrain from communicating the contents of the letter to other persons (cc: all counsel mld 6/19/03) (jlg) (Entered: 06/19/2003)
135 RESPONSE by defendants to motion to renew contempt motion [130−1] (jlg) (Entered: 06/19/2003)
136 ORDER by Magistrate Judge William C. Beaman granting motion for order to include documents under protective order [97−1] (cc: all counsel mld 6/19/03) (jlg) (Entered: 06/19/2003)
137 RESPONSES by defendants to plaintiffs' supplemental interrogatories (dn) (Entered: 06/25/2003)
138 APPEAL FROM MAGISTRATE'S ORDER [136−1] ruling on defendants' motion to include documents under protective order by plaintiff (dn) (Entered: 06/25/2003)
139 RESPONSE by defendant to appeal motion APPEAL FROM MAGISTRATE'S ORDER [136−1] ruling on defendants' motion to include documents under protective order [138−1] (jlg) (Entered: 06/30/2003)
140 MINUTES: motion to renew contempt motion [130−1] taken under advisement ; hearing held on 7/1/03, appeal motion APPEAL FROM MAGISTRATE'S [136−1] ruling on defendants' motion to include documents under protective order [138−1] taken under advisement; defendant's proposed remedial plan taken under advisement ( Ct Rptr: DeLong ) (jlg) (Entered: 07/02/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 16 of 28

07/11/2003 07/14/2003 10/07/2003
10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/20/2003 10/29/2003
11/04/2003
11/04/2003
11/04/2003

141 STIPULATION for Protective Order. (jlg, ) (Entered: 07/11/2003)
142 ORDER FOR PROTECTION OF DOCUMENTSby the Honorable Clarence A Brimmer.(cc: all counsel on 7/15/2003.)(dn, ) (Entered: 07/15/2003)
143 Final Decree Adopting and Incorporating Defendants' Second Proposed Remedial Plan, With Modifications, and Granting in Part and Denying in Part Plaintiff's Objections to the Plan by the Honorable Clarence A Brimmer. It is ordered that plaintiff's first and second objections to defendants' second proposed remedial plan are denied. Plaintiff's third objection is granted in part, to the extent that: Defendants are ordered to include in their TRO and TPC policies a requirement that officers making decisions regarding property deprivation and contact visitation restrictions articulate the basis for their decisions in writing; and defendants are further ordered to determine, and to articulate in their written policies, which staff positions hold this decision making authority. Additionally, Plan Exhibit I to defendants' second proposed remedial plan is stricken, and the court substitutes its 7/14/03 Order for Protection of Documents in lieu thereof. With these modifications, defendants' second proposed remedial plan is adopted and incorporated into this final decree(cc: all counsel on 10/7/03.)(jlg, ) (Entered: 10/09/2003)
144 BILL OF COSTS by Plaintiff Brad Skinner. (js, ) (Entered: 10/21/2003)
145 MOTION for Attorney Fees and Expenses by Plaintiff Brad Skinner (Proposed order submitted) (js, ) (Entered: 10/21/2003)
146 BRIEF in support of re 145 MOTION for Attorney Fees and Expenses by Plaintiff Brad Skinner (Proposed order submitted) (js, ) filed by Plaintiff Brad Skinner. (js, ) (Entered: 10/21/2003)
147 AFFIDAVIT of Stephan L Pevar. (js, ) (Entered: 10/21/2003)
148 AFFIDAVIT of Paul Schor. (js, ) (Entered: 10/21/2003)
149 AFFIDAVIT of Shirley Kingston. (js, ) (Entered: 10/21/2003)
150 AFFIDAVIT of Timothy C Kingston. (js, ) (Entered: 10/21/2003)
151 STATEMENT OF CONSULTATION by Plaintiff Brad Skinner. (js, ) (Entered: 10/21/2003)
152 ORDER by the Honorable Clarence A Brimmer granting in part and denying in part 94 Motion for Contempt of court ; granting 130 Motion for Order to renew contempt motion, granting 131 Motion for Order to dismiss/withdraw motion for injunctive relief, denying 127 Motion for Order for injunctive relief (cc: all counsel on 10/30/03).(js, ) (Entered: 10/30/2003)
153 OBJECTION to 145 MOTION for Attorney Fees and Expenses filed by Defendants David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden. (jlg, ) (Entered: 11/05/2003)
154 NOTICE of Attorney Appearance by David Delicath on behalf of David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden (jlg, ) (Entered: 11/05/2003)
155 MEMORANDUM in Support to 153 OBJECTION to 145 MOTION for Attorney Fees and Expenses filed by Defendants David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden. (jlg, ) (Entered: 11/05/2003)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 17 of 28

11/18/2003 11/18/2003 11/18/2003 11/18/2003 11/18/2003 01/26/2004 03/19/2004 03/22/2004
03/25/2004 06/30/2004
07/12/2004 07/26/2004
07/27/2004 08/02/2004
08/09/2004

156 AFFIDAVIT of Timothy C Kingston. (js, ) (Entered: 11/19/2003)
157 AFFIDAVIT of Walter C Urbigkit. (js, ) (Entered: 11/19/2003)
158 MOTION for Attorney Fees and brief in support by Plaintiff Brad Skinner referred to the Honorable William C Beaman. (Proposed order submitted) (js, ) (Entered: 11/19/2003)
159 REPLY BRIEF re 158 MOTION for Attorney Fees and brief in support by Plaintiff Brad Skinner referred to the Honorable William C Beaman. (Proposed order submitted) (js, ) filed by Plaintiff Brad Skinner. (js, ) (Entered: 11/19/2003)
160 SECOND AFFIDAVIT of Stephan L Pevar. (js, ) (Entered: 11/19/2003)
161 CLERK'S Bill of Costs regarding 144 Bill of Costs filed by Brad Skinner; Plaintiff awarded costs in the amount of $4975.30 (cc: all counsel on 1/30/2004). (dn, ) (Entered: 01/30/2004)
162 NOTICE of Hearing on Motions 158 for Attorney Fees, 145 for Attorney Fees: Motion Hearing set for 3/25/2004 09:30 AM in Cheyenne before Honorable Clarence A Brimmer. (cc: all counsel on 3/19/04.)(sjlg, ) (Entered: 03/19/2004)
163 NOTICE of Supplemental Authority by Defendants David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden (sjlg, ) (Entered: 03/22/2004)
164 Minutes: Motion Hearing held on 3/25/2004, taking under advisement 145 Motion for Attorney Fees, taking under advisement 158 Motion for Attorney Fees. (Court Reporter DeLong.)(sjlg, ) (Entered: 03/25/2004)
165 ORDER by the Honorable Clarence A Brimmer granting 145 and 158 Motion for Attorney Fees. It is ordered that plaintiffs' motion for attorney's fees and expenses is granted in the amount of $427,158.72, this fee is calculated as follows: Steven Pevar, 2133.1 hours at $135 per hour for $287,968.50, with the twenty−five percent multiplier of $71,992.13; Mr Kingston, 51.92 hours at $135 per hour for $7,009.20, Ms Kingston, 136.5 hours at $100 per hour and 15.5 hours at $50 an hour for travel time for a total of $14,425; Paul Schor, 226 hours at $40 for $9,040; Steven Pevar, 19 hours for fee brief preparation at $135 per hour for $2,565; and expenses of $36,297.89, less travel expenses for Paul Schor of $2,139, for total expenses of $34,158.89. (cc: all counsel 7/1/04).(sjlg, ) (Entered: 07/01/2004)
PUBLISHED Order 165 (sjlg, ) (Entered: 07/12/2004)
166 NOTICE OF APPEAL as to 165 Order on Motion for Attorney Fees by Defendants David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden. Filing fee $ 255, receipt number 304058. (cc: all counsel on 7/27/04).(sjlg, ) (Entered: 07/27/2004)
167 Notification of appeal sent to USCA and counsel re 166 Notice of Appeal, (cc: all counsel on 7/27/04).(sjlg, ) (Entered: 07/27/2004)
168 Appeal Number received from USCA 04−8076 for 166 Notice of Appeal, filed by Wyoming Department of Corrections State Penitentiary Warden, Judy Uphoff, WYDOC Director, Vance Everett, Wyoming Department of Corrections State Penitentiary Security Officer, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, James Hewitt. (sjlg, ) (Entered: 08/02/2004)
169 NOTICE OF CROSS APPEAL by Plaintiff Brad Skinner. Filing fee $ 255, receipt number 304157. (cc: all counsel on 8/9/04).(he, ) (Entered: 08/09/2004)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 18 of 28

08/09/2004
08/09/2004 08/16/2004 08/17/2004 08/17/2004 08/20/2004 09/10/2004 05/20/2005 05/31/2005
06/17/2005 06/23/2005 06/29/2005
07/18/2005 07/25/2005 07/25/2005 07/25/2005

170 TRANSCRIPT REQUEST by Defendants David Ebell, Vance Everett, James Hewitt, Judy Uphoff, WYDOC Director, WYDOC Director, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Warden for proceedings held on 3/25/04 before Judge Clarence Brimmer, re 166 Notice of Appeal 04−8076. (sjlg, ) (Entered: 08/09/2004)
171 Notification of cross−appeal sent to USCA and counsel re 169 Notice of Cross Appeal (cc: all counsel on 8/9/04).(he, ) (Entered: 08/09/2004)
TRANSCRIPT of Proceedings re Motion for attorney fees held on 3/25/04 before Judge Brimmer. Court Reporter: Norma DeLong. (he, ) (Entered: 08/16/2004)
172 TRANSCRIPT ORDER FORM by court reporter Jan Dew−Harris, re 166 Notice of Appeal, (04−8076) Transcript due by 8/13/2004. (sjlg, ) (Entered: 08/17/2004)
173 Transcript Letter transmitted to USCA re 166 Notice of Appeal 04−8076 (sjlg, ) (Entered: 08/17/2004)
174 Appeal Number received from USCA 04−8088 for 169 Notice of Cross Appeal filed by Brad Skinner. (he, ) (Entered: 08/20/2004)
175 MANDATE of USCA dismissing 166 Notice of Appeal 04−8076 and 169 Notice of Cross Appeal 04−8088, each party shall bear its own costs on appeal (cc: all counsel on 9/10/04).(sjlg, ) (Entered: 09/10/2004)
176 MOTION to Amend/Correct "Modify" the remedial plan filed by Plaintiff Brad Skinner. Referred to Magistrate Judge. (sjlg, ) (Entered: 05/20/2005)
177 RESPONSE to 176 Motion to Amend/Correct "Modify" Remedial Plan filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 06/01/2005)
178 REPLY BRIEF re 176 Motion to Amend/Correct/Modify the Remedial Plan filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 06/17/2005)
179 OBJECTION to Defendants' Proposed Changes to Policy 1.012 filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 06/24/2005)
180 RESPONSE to Plaintiff's 179 Objection to Defendant's Proposed Changes to Policy 1.012 filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 06/30/2005)
181 REPLY to 180 Response re Plaintiff's 179 Objection to Defendant's Proposed Changes to Policy 1.012 filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 07/19/2005)
182 MOTION for Order to Disseminate Redacted Investigative Reports, and Brief in Support filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 07/26/2005)
183 APPENDIX re 182 Motion for Order to Disseminate Redacted Investigative Reports, and Brief in Support filed by Plaintiff Brad Skinner. (FILED UNDER SEAL.) (sjlg, ) (Entered: 07/26/2005)
184 NOTICE of Hearing on 182 MOTION for Order to Disseminate Redacted Investigative Reports and 176 MOTION to Amend/Correct/Modify Remedial Plan and any other pending motions timely filed: Motion Hearing set for 9/1/2005 01:30 PM in Cheyenne before Honorable Clarence A Brimmer. (cc: all counsel on 7/26/05.)(sjlg, ) (Entered: 07/26/2005)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 19 of 28

07/28/2005
07/28/2005
08/15/2005 08/18/2005 08/26/2005
08/29/2005 08/29/2005 08/31/2005
09/01/2005 09/12/2005 09/27/2005
09/27/2005 09/28/2005

185 MOTION to Modify the Order for Protection of Documents filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer, AND (dn, ) (Entered: 07/29/2005)
185 RESPONSE to 182 Motion to Disseminate Redacted Investigative Reports filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (dn, ) (Entered: 07/29/2005)
186 REPLY BRIEF by Plaintiff Brad Skinner re Defendants' 182 Motion to Disseminate Redacted Investigative Reports, and 185 Motion to Modify the Protective Order . (dn, ) (Entered: 08/16/2005)
187 MOTION for Order for Relief From Judgment by "Unnamed Members of the Plaintiff's Class of Prisoners" (sjlg, ) (Entered: 08/18/2005)
188 RESPONSE to 187 Motion for Order for Relief from Judgment filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (js, ) (Entered: 08/29/2005)
189 RESPONSE to 187 Motion for Order for Relief From Judgment by "Unnamed Members of the Plaintiff's Class of Prisoners" filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 08/30/2005)
190 NOTICE of Introduction of Newly−Discovered Evidence by Plaintiff Brad Skinner (sjlg, ) (Entered: 08/30/2005)
191 RESPONSE to 186 Reply Brief re Motion to Modify Protective Order filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 08/31/2005)
192 Minutes for proceedings held before Judge Clarence A Brimmer : Motion Hearing held on 9/1/2005. (Court Reporter Mullivan.)(jl, ) (Entered: 09/01/2005)
193 MOTION to Appoint Counsel on appeal filed by Derrick Parkhurst. (js, ) Modified on 10/4/2005 (sjlg, ). (Entered: 09/13/2005)
194 ORDER ON VARIOUS MOTIONS by the Honorable Clarence A Brimmer. It is ordered that plaintiffs' motion to modify the remedial plan is denied as moot; plaintiffs' motion to disseminate redacted investigative reports is granted; plaintiffs' objection to defendants' proposed changes to Policy 1.012 is sustained in part and overruled in part; defendants' motion to modify the order from protection of documents is denied; and the motion for relief from judgment filed by Mr Parkhurst and nine other inmates is denied (cc: all counsel 9/27/05).(sjlg, ) (Entered: 09/27/2005)
195 NOTICE OF APPEAL as to 194 ORDER on the motion for relief from judgment filed by Mr Parkhurst and nine other inmates is denied filed by Derrick Parkhurst. Filing fee not paid. Modified on 9/28/2005 (sjlg, ). (Entered: 09/28/2005)
196 Preliminary Record of appeal sent to USCA and counsel re 195 Notice of Appeal (cc: all counsel on 9/28/05).(sjlg, ) (Entered: 09/28/2005)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 20 of 28

09/28/2005 10/03/2005 10/03/2005 10/03/2005 10/04/2005
10/12/2005 10/12/2005 10/12/2005 10/12/2005
10/14/2005 10/17/2005 10/17/2005 10/17/2005 10/20/2005
10/21/2005 10/24/2005 10/24/2005

197 NON−PUBLIC DOCUMENT pursuant to the Judicial Conference Policy on Privacy and Public Access − Hearing EXHIBITS filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 09/28/2005)
198 ORDER by the Honorable Clarence A Brimmer denying 193 Motion to Appoint Counsel on Appeal by Derrick Parkhurst (cc: all counsel 10/4/05).(sjlg, ) (Entered: 10/04/2005)
199 MOTION to Amend/Correct 194 Order on Various Motions filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 10/04/2005)
200 Appeal Number received from USCA 05−8098 for 195 Notice of Appeal. (sjlg, ) (Entered: 10/04/2005)
201 RESPONSE to 199 Motion to Amend/Correct filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 10/05/2005)
202 MOTION to Appeal in forma pauperis by Derrick Parkhurst (sjlg, ) (Entered: 10/13/2005)
203 TRANSCRIPT REQUEST for proceedings held on 9/1/05 before Judge Brimmer, re 195 Notice of Appeal 05−8098. .(sjlg, ) (Entered: 10/13/2005)
204 MOTION for Order for Court−Provided Transcript Referred to Magistrate Judge. (sjlg, ) (Entered: 10/13/2005)
205 MOTION for Order for Relief from Order filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 10/13/2005)
206 MOTION to Appeal in forma pauperis by Derrick Parkhurst (jlg, ) (Entered: 10/17/2005)
207 MOTION for Order to Engage in Formal Discovery filed by Plaintiff Brad Skinner. (sjlg, ) Modified on 1/3/2006 (sjlg, ). (Entered: 10/17/2005)
208 APPENDIX re 207 Motion for Order to Engage in Formal Discovery filed by Plaintiff Brad Skinner. (FILED UNDER SEAL.) (sjlg, ) (Entered: 10/17/2005)
209 REPLY BRIEF re 199 Motion to Amend/Correct filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 10/18/2005)
210 RESPONSE to 209 Reply Brief re: Motion to Alter or Amend filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjlg, ) (Entered: 10/21/2005)
211 ORDER by the Honorable Clarence A Brimmer granting 202 and 206 Motions for Leave to Appeal in forma pauperis (cc: all counsel 10/21/05).(sjlg, ) (Entered: 10/21/2005)
212 OPPOSITION by Plaintiffs to Defendants' 205 Motion for Relief from Order. (sdn, ) (Entered: 10/25/2005)
213 RESPONSE to Plaintiffs' 207 Motion for Leave to Engage in Formal Discovery filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett,

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 21 of 28

10/27/2005 10/28/2005 11/03/2005
11/16/2005
11/21/2005 11/21/2005 11/28/2005 11/28/2005 11/28/2005 12/02/2005
12/12/2005 12/12/2005 12/14/2005 12/15/2005

James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sdn, ) (Entered: 10/27/2005)
215 ORDER by the Honorable Clarence A Brimmer denying 204 Motion for Court−Provided Transcript (cc: all counsel 10/31/2005).(sdn, ) (Entered: 10/31/2005)
214 Transcript Letter transmitted to Mr. Parkhurst from court reporter upon receipt of money transcript will be done re 195 Notice of Appeal 05−8098 (cc: all counsel on 10/28/05).(js, ) (Entered: 10/28/2005)
216 MOTION for Protection of Information and REQUEST for Hearing filed by Defendants WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sdn, ) Modified on 1/3/2006 (sjlg, ). (Entered: 11/03/2005)
217 RESPONSE to Plaintiffs' Reply Brief re Plaintiffs' Motion to Commence Discovery filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sdn, ) (Entered: 11/17/2005)
218 MOTION by Plaintiff Brad Skinner for Declaratory and Injunctive Relief, and Brief in Support. (sdn, ) (Entered: 11/21/2005)
219 EXHIBIT filed by Plaintiff Brad Skinner UNDER SEAL. (sdn, ) (Entered: 11/21/2005)
220 Appeal Remark re 195 Notice of Appeal 05−8098: Letter from USCA appellants failure to enter an appearance may cause the appeal to be dismissed. Failure to file a brief is grounds for dismissal without futher notice. (js, ) (Entered: 11/29/2005)
221 SECOND REPLY BRIEF by Plaintiff Brad Skinner re 207 Motion to Engage in Formal Discovery. (sdn, ) (Entered: 11/29/2005)
222 MOTION by Plaintiff Brad Skinner for Declaratory Judgment re Plaintiffs' Right to Communicate with the Outside Investigator. (sdn, ) (Entered: 11/29/2005)
223 RESPONSE to second 221 Reply Brief re: plaintiffs motion to engage in formal discovery filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (js, ) (Entered: 12/02/2005)
225 RESPONSE by Defendants to Plaintiff's 218 Motion for Declaratory and Injunctive Relief re Defendants' Corrective Actions. (sdn, ) (Entered: 12/15/2005)
226 EXHIBITS to 225 RESPONSE by Defendants to Plaintiff's 218 Motion for Declaratory and Injunctive Relief re Defendants' Corrective Actions. (FILED UNDER SEAL)(sdn, ) (Entered: 12/15/2005)
224 RECORD on Appeal Certified and Transmitted to US Court of Appeals consisting of 9 volumes(s) re 195 Notice of Appeal 05−8098 (cc: all counsel on 12/14/05).(js, ) (Entered: 12/14/2005)
227 NOTICE of Attorney Appearance by Daniel Michael Fetsco on behalf of Judith Uphoff, et al Defendants (Entered: 12/20/2005)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 22 of 28

12/15/2005 12/21/2005 12/23/2005 12/23/2005 12/23/2005 01/03/2006 01/03/2006 01/03/2006
01/03/2006
01/03/2006
01/05/2006 01/17/2006
01/17/2006 01/20/2006

228 RESPONSE to 222 Motion for Judgment filed by Defendants (ssh, ) (Entered: 12/20/2005)
229 LETTER of Receipt for appeal record re 195 Notice of Appeal sent to USCA, USCA Case Number 05−8098 (js, ) (Entered: 12/22/2005)
230 NOTICE of Hearing on Motion 199 MOTION to Amend/Correct 194 Order on Motion to Amend/Correct, Order on Motion for Order, 218 MOTION for Order: Motion Hearing set for 1/5/2006 01:30 PM in Cheyenne before Honorable Clarence A Brimmer. (cc: all counsel on 12/23/05.)(szf, ) (Entered: 12/28/2005)
231 REPLY BRIEF re 225 Response to Motion filed by Plaintiff Brad Skinner. (ssh, ) (Entered: 12/29/2005)
232 NOTICE of filing exhibits under seal by Plaintiff Brad Skinner (ssh, ) (Entered: 12/29/2005)
233 REPLY BRIEF re 222 Motion for Declaratory Judgment re the Right to Communicate with the Outside Investigator filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 01/03/2006)
234 NOTICE of First Set of Proposed Discovery by Plaintiff Brad Skinner (sjlg, ) (Entered: 01/03/2006)
235 MOTION to Withdraw 216 MOTION for Protection of Information and REQUEST for Hearing filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (js, ) (Entered: 01/04/2006)
236 MOTION for Order for Termination of Final Decree and Prospective Relief filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (js, ) (Entered: 01/04/2006)
237 MEMORANDUM (BRIEF) in Support of 236 Motion for Order for Termination of Final Decree and Prospective Relief, filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (js, ) (Entered: 01/04/2006)
238 Minutes for proceedings held before Judge Clarence A Brimmer : Motions Hearing held on 1/5/2006. Motions taken under advisement. (Court Reporter Janet Dew Harris.)(js, ) (Entered: 01/06/2006)
239 EXHIBIT "B" to Various Motions of January 5, 2006 filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (FILED UNDER SEAL) (sjlg, ) (Entered: 01/18/2006)
240 OPPOSITION to 236 Motion for Order for Termination of Final Decree, filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 01/18/2006)
241 SECOND ORDER ON VARIOUS MOTIONS by the Honorable Clarence A Brimmer. It is ordered that plaintiff's motion to alter/amend is granted in part and denied in part; defendants' motion for relief from order is denied; plaintiff's motion for declaratory judgment re plaintiff's right to communicate with othe outside investigator is granted; plaintiff's motion for declaratory and injuctive relief is

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 23 of 28

01/20/2006 01/23/2006
01/27/2006
01/30/2006 01/31/2006 02/01/2006 02/01/2006
02/01/2006 02/03/2006 02/06/2006

denied in part and granted in part; plaintiff's motion for leave to engage in formal discovery is granted; defendants' motion for order for termination of final decree and prospective relief is deferred, pending discovery and evidentiary hearing to be held 5/31/2006 09:30 AM before Honorable Clarence A Brimmer. (cc: all counsel 1/20/06).(sjlg, ) (Entered: 01/23/2006)
PUBLISHED SECOND ORDER ON VARIOUS MOTIONS (sjlg, ) (Entered: 01/23/2006)
242 REPLY to Plaintiff's 240 Opposition to Defendants' Motion to Terminate Final Decree filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sdn, ) (Entered: 01/25/2006)
243 JOINT STIPULATION to Reset Hearing Date filed by Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director(in her official capacity for the purpose of plaintiff's individual claim), WYDOC Director(in his official capacity for the purpose of plaintiff's class claim), Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer(in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim), Wyoming Department of Corrections State Penitentiary Security Officer(in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim). (sdn, ) (Entered: 01/27/2006)
244 ORDER Re−Setting Hearing on 236 MOTION to Terminate Final Decree by the Honorable Alan B Johnson for Judge Brimmer. Motion Hearing re−set to 5/30/2006 at 9:30 AM in Cheyenne before Honorable Clarence A Brimmer.(cc: all counsel 1/30/2006.)(sdn, ) (Entered: 01/30/2006)
TRANSCRIPT of Motions Proceedings held on 9/1/05 before Judge Clarence A Brimmer re 195 Notice of Appeal 05−8098. Court Reporter: Kathy J Mullivan. (sjs, ) (Entered: 01/31/2006)
245 Supplemental Record on Appeal transmitted to US Court of Appeals consisting of 1 volumes(s)(Vol 10) re 195 Notice of Appeal 05−8098 (cc: all counsel on 2/1/06).(sjs, ) (Entered: 02/01/2006)
246 JOINT STIPULATION to Substitute Party Defendants and Amend Caption by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director(in her official capacity for the purpose of plaintiff's individual claim), WYDOC Director(in his official capacity for the purpose of plaintiff's class claim), Judy Uphoff, Vance Everett, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer(in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim), Wyoming Department of Corrections State Penitentiary Security Officer(in his official capacity, for purposes of plaintiff's individual claim and for purposes of plaintiff's class claim). (sdn, ) (Entered: 02/02/2006)
247 ORDER by the Honorable William C Beaman granting 246 Joint Stipulation to Substitute Party Defendants and to Amend Caption .(cc: all counsel 2/2/2006.)(sdn, ) (Entered: 02/02/2006)
248 Second REPLY to 236 Motion for Order to Terminate Final Decree filed by Plaintiff Brad Skinner. (sjlg, ) (Entered: 02/06/2006)
249 STIPULATION for Protective Order by Plaintiff Brad Skinner, and Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden(in his official capacity). (sdn, ) (Entered: 02/08/2006)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 24 of 28

02/07/2006 02/08/2006 04/10/2006 04/11/2006 04/18/2006 05/05/2006
05/05/2006
05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/05/2006 05/05/2006
05/12/2006 05/12/2006 05/12/2006 05/12/2006

251 ORDER FOR PROTECTION OF DOCUMENTS by the Honorable William C Beaman.(cc: all counsel 2/8/2006.)(sdn, ) (Entered: 02/08/2006)
250 LETTER of Receipt for supplemental appeal record re 195 Notice of Appeal sent to USCA, USCA Case Number 05−8098 (sjs, ) (Entered: 02/08/2006)
252 UNCONTESTED MOTION by Plaintiff Brad Skinner for Extension of Time and to Reschedule Trial. (Attachment #1 − Proposed Order) (sdn, ) (Entered: 04/10/2006)
253 ORDER by the Honorable Clarence A Brimmer granting Plaintiff's 252 Uncontested Motion for Extension of Time and to Reschedule Trial. (cc: all counsel 4/11/2006).(sdn, ) (Entered: 04/11/2006)
254 JOINT MOTION for Continuance of Trial filed by Plaintiff Brad Skinner. (sdn, ) (Entered: 04/18/2006)
255 MANDATE of USCA affirming decision of USDC 195 Notice of Appeal 05−8098.We affirm the district court's denial of the Rule 60(b) motion for relief from judgment; affirm the district court's denial of the motion for appointment of new counsel and deny the renewed motion on appeal for appointment of counsel; affirm the district court's denial of the motion for recusal of the district court judge; and deny the request for expansion of the record. (sjs, ) (Entered: 05/05/2006)
256 BRIEF by Plaintiff Brad Skinner in Opposition to Defendants' 236 MOTION to Terminate the Court's Remedial Plan. Deposition of William C Collins taken March 7 &8, 2006 with notebook of exhibits submitted as part of brief; documents filed separately. (sdn, ) (Entered: 05/05/2006)
257 FIRST MOTION by Plaintiff Brad Skinner for Contempt re Defendants' Violation of Section I(A)(5) of the Remedial Plan. (sdn, ) (Entered: 05/05/2006)
258 SECOND MOTION by Plaintiff Brad Skinner for Contempt re Defendants' Improper Restriction of the Certification Provision. (sdn, ) (Entered: 05/05/2006)
259 THIRD MOTION by Plaintiff Brad Skinner for Contempt re Defendants' Failure to Properly Implement the Certification Provision. (sdn, ) (Entered: 05/05/2006)
260 FOURTH MOTION by Plaintiff Brad Skinner in Contempt re Defendants' Failure to Timely Investigate Complaints from Staff (sdn, ) (Entered: 05/05/2006)
261 FIFTH MOTION by Plaintiff Brad Skinner in Contempt re Defendants' Failure to Timely Remedy a Dangerous Condition (sdn, ) (Entered: 05/05/2006)
262 SIXTH MOTION by Plaintiff Brad Skinner for Contempt re Defendants' Failure to Investigate Claims of Inadequate Staffing (sdn, ) (Entered: 05/05/2006)
263 SUPPLEMENTAL MEMORANDUM by Defendants Wyoming Department of Corrections Director and Wyoming Department of Corrections State Penitentiary Warden in Support of their 236 Motion for Termination of Final Decree and Prospective Relief. (Paper copies of attachments to memorandum are in a Xerox box; CD containing attachments is attached to memorandum) (sdn, ) (Entered: 05/05/2006)
DEPOSITION of Patrick Keppler taken by plaintiffs on 3−16−2006 in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
DEPOSITION of Randy Baunach taken by plaintiffs on 3−30−2006 in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
DEPOSITION of William L Moore taken by plaintiffs on 3−16−2006 in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
TELEPHONIC DEPOSITION of Edward Beason taken by plaintiffs on 3−29−2006 in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 25 of 28

05/12/2006 05/12/2006 05/12/2006 05/18/2006
05/18/2006 05/19/2006 05/19/2006
05/25/2006 05/30/2006 05/30/2006 06/01/2006 08/07/2006
09/12/2006 09/13/2006 11/20/2006

DEPOSITION of Warden Scott Abbott taken on 3−28−2006 by plaintiffs in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
DEPOSITION of Janell Thayer−Steele taken on 3−29−2006 by plaintiffs in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
DEPOSITION of Robert O Lampert (Volume 1) taken on 3−14−2006 by plaintiffs in support of (#256) Plaintiffs' Brief in Opposition to Defendants' Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/15/2006)
264 MOTION by Defendants Wyoming Department of Corrections Director and Wyoming Department of Corrections State Penitentiary Warden to Exceed Page Limit for Derfendants' Response to Plaintiffs' Brief in Opposition to Motion for Termination of Final Decree and Six Motions for Contempt. (sdn, ) (Entered: 05/18/2006)
265 ORDER by the Honorable Clarence A Brimmer granting 264 Motion to Exceed Page Limit for Defendants' Response to Plaintiffs' Brief in Opposition to Motion for Termination of Final Decree and Six Motions for Contempt (cc: all counsel on 5/18/2006.)(sdn, ) (Entered: 05/18/2006)
266 REPLY BRIEF by Plaintiff Brad Skinner in Opposition to Defendants' 236 Motion to Terminate the Court's Remedial Plan. (sdn, ) (Entered: 05/22/2006)
267 RESPONSE by Defendants Wyoming Department of Corrections Director and Wyoming Department of Corrections State Penitentiary Warden to Plaintiff's 266 Reply Brief in Opposition to Motion for Termination of Final Decree and Six Motions for Contempt. (CD of response submitted with paper copy) (Attachments #1: Exhibits − Part 1; #2: Exhibits − Part 2)(sdn, ) (Entered: 05/23/2006)
268 PROCEDURAL ORDERby the Honorable Clarence A Brimmer.(cc: all counsel on 6/2/2006.)(ssh, ) (Entered: 06/01/2006)
DEPOSITION of Eric Pino taken on 3/30/2006 by plaintiff. (sdn, ) (Entered: 05/30/2006)
DEPOSITION of Russell Fleming taken on 3/30/2006 by plaintiff. (sdn, ) (Entered: 05/30/2006)
269 Minutes for proceedings held before Judge Clarence A Brimmer : Motion Hearing held on 6/1/2006 on Plaintiffs' six motions for contempt and defendants' motion for termination of final decree; all motions taken under advisement. (Court Reporter Dew−Harris.)(sdn, ) (Entered: 06/02/2006)
270 ORDER by the Honorable Clarence A Brimmer denying Defendants' 236 Motion to Terminate Remedial Plan, granting in part and denying in part Plaintiffs' 257 First Motion for Contempt, granting Plaintiffs' 258 Second Motion for Contempt, denying Plaintiffs' 259 Third Motion for Contempt, denying Plaintiffs' 260 Fourth Motion for Contempt, granting Plaintiffs' 261 Fifth Motion for Contempt, denying Plaintiffs' 262 Sixth Motion for Contempt and Modifying Remedial Plan; the automatic stay of the final decree is lifted and the remedial plan as modified by this order is once again in effect; defendants may move for termination again one year after th edate of this order. (cc: all counsel on 8/9/2006.)(sdn, ) (Entered: 08/09/2006)
271 Joint STIPULATION to Substitute Party Defendants and Amend Caption. (Attachments: # 1 Proposed Order)(jlg, ) (Entered: 09/12/2006)
272 ORDER Granting Joint Stipulation to Substitute Party Defendants and to Amend Caption by the Honorable Clarence A Brimmer.(cc: all counsel on 9/14/06.)(sjlg, ) (Entered: 09/14/2006)
273 MOTION for Order to Show Cause why Defendants should not be held in contempt of Court filed by Plaintiff Brad Skinner. REFERRED TO MAGISTRATE JUDGE.(sjs, ) (Entered: 11/20/2006)

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 26 of 28

11/20/2006 11/24/2006 12/01/2006
12/14/2006 01/26/2007 01/29/2007 02/02/2007 02/05/2007 02/06/2007 02/07/2007 02/09/2007 02/09/2007 02/09/2007
02/15/2007 02/16/2007

274 APPENDIX re 273 Motion for Order to Show Cause why Defendants should not be held in contempt of Court filed by Plaintiff Brad Skinner.(FILED UNDER SEAL) (sjs, ) (Entered: 11/20/2006)
275 NOTICE of Inspection Schedule by Plaintiff Brad Skinner (sjs, ) (Entered: 11/27/2006)
276 RESPONSE to 273 Motion for Order to Show Cause Why Defendants should not be held in contempt of court filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. Modified on 12/1/2006 − attachments filed under seal removed (sdn, ). (Entered: 12/01/2006)
277 REPLY BRIEF re 273 Motion for Order to Show Cause filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 12/14/2006)
278 MOTION for Summary Judgment re: Inadequate Medical Record keeping filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 01/26/2007)
279 SECOND MOTION for Order to Show Cause why defendants should not be held in contempt of court filed by Plaintiff Brad Skinner. REFERRED TO MAGISTRATE JUDGE.(sjs, ) (Entered: 01/29/2007)
281 PLAINTIFF EXHIBIT in reference to 280 THIRD MOTION for Order to Show Cause Why Defendants Should Not be Held in Contempt of Court filed by Plaintiff Brad Skinner (FILED UNER SEAL)(sjs, ) (Entered: 02/05/2007)
280 THIRD MOTION for Order to Show Cause Why Defendants Should Not be Held in Contempt of Court filed by Plaintiff Brad Skinner. REFERRED TO MAGISTRATE JUDGE.(sjs, ) (Entered: 02/05/2007)
282 NOTICE of Hearing on Motion 278 MOTION for Summary Judgment: Motion Hearing set for 3/28/2007 10:00 AM in Cheyenne before Honorable Clarence A Brimmer. (cc: all counsel on 2/7/06.)(sjs, ) (Entered: 02/07/2007)
283 RESPONSE to 278 Motion for Summary Judgment re: inadequate Medical Record Keeping filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. (sjs, ) (Entered: 02/07/2007)
284 FOURTH MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court filed by Plaintiff Brad Skinner. REFERRED TO MAGISTRATE JUDGE.(sjs, ) (Entered: 02/09/2007)
285 EXHIBITS in reference to 284 FOURTH MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court filed by Plaintiff Brad Skinner . Related document: 284 MOTION for Order to Show Cause filed by Brad Skinner.(sjs, )FILED UNDER SEAL (Entered: 02/09/2007)
286 RESPONSE to 279 SECOND Motion for Order to Show Cause why Defendants should not be held in contempt of Court filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. (sjs, ) EXHIBITS NOT SCANNED UNDER SEAL (Entered: 02/09/2007)
287 RESPONSE to 280 Third Motion for Order to Show Cause Why Defendants should not be held in contempt of court filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. ALL EXHIBITS FILED UNDER SEAL (sjs, ) (Entered: 02/16/2007)
288 CORRECTED EXHIBIT PREVIOUSLY FILED DECEMBER 1, 2006 (EXHIBIT FILED UNDER SEAL) in reference to 276 RESPONSE to 273 Motion for Order to Show Cause Why Defendants should not be held in contempt of court filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. Modified on 12/1/2006 − attachments filed under seal removed filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. Related document: 276 Response to Motion, filed by Wyoming Department of Corrections State Penitentiary Warden, Wyoming Department of Corrections Director.(sjs, )

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 27 of 28

02/20/2007 02/23/2007 02/23/2007 02/26/2007 02/26/2007 03/05/2007 03/12/2007 03/14/2007 03/20/2007
05/18/2007 08/16/2007
08/16/2007

(Entered: 02/16/2007)
289 REPLY BRIEF re 278 Motion for Summary Judgment re: Inadequate Medical Record keeping filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 02/20/2007)
290 RESPONSE to 284 Fourth Motion for Order to Show Cause Why Defendants should not be Held in Contempt of Court filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. EXHIBITS FILED UNDER SEAL(sjs, ) (Entered: 02/23/2007)
291 RESPONSE to 289 Reply Brief re: Inadequate Medical Record Keeping filed by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. (sjs, ) (Entered: 02/23/2007)
292 REPLY BRIEF re 279 Second Motion for Order to Show Cause why defendants should not be held in contempt of court (unnecessary delays in abating deficiencies) filed by Plaintiff Brad Skinner. (sjs, ) Modified on 2/26/2007 (sjs, ). (Entered: 02/26/2007)
293 EXHIBITS for Second Contempt motion filed by Plaintiff Brad Skinner. (FILED UNDER SEAL)(sjs, ) (Entered: 02/26/2007)
294 REPLY BRIEF re 280 THIRD MOTION for Order to Show Cause Why Defendants Should Not be Held in Contempt of Court (Violations of the conflict policy) filed by Plaintiff Brad Skinner. (EXHIBITS FILED UNDER SEAL) (sjs, ) (Entered: 03/06/2007)
295 REPLY BRIEF re 284 FOURTH CONTEMPT MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court (Failure to complete the ROE Rape Investigation) filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 03/13/2007)
VERBAL NOTICE of Settlement per Stephen Pevar through Judge Brimmer's chambers (sdn, ) (Entered: 03/14/2007)
296 MOTION to Vacate 282 Notice of Hearing on Motion, MOTION to Dismiss, 284 FOURTH MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court, 278 MOTION for Summary Judgment, 273 MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court, 279 SECOND MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court, 280 THIRD MOTION for Order to Show Cause Why Defendants should not be Held in Contempt of Court filed by Plaintiff Brad Skinner. REFERRED TO MAGISTRATE JUDGE. (Attachments: # 1 Proposed Order)(sjs, ) (Entered: 03/20/2007)
297 ORDER by the Honorable Clarence A Brimmer dismissing without prejudice the Motion for Order to Show Cause, 278 Motion for Summary Judgment, Motion for Order to Show Cause, Motion for Order to Show Cause, Motion for Order to Show Cause and 296 Motion to Dismiss, andgranting 296 Motion to Vacate Hearing (cc: all counsel on 5/18/2007.)(sdn, ) (Entered: 05/18/2007)
298 SECOND MOTION for Order for Termination of Final Decree and Prospective Relief filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer. (sjs, ) (Entered: 08/17/2007)
299 MEMORANDUM in Support of 298 Second Motion for Order for Termination of Final Decree and Prospective Relief filed by Defendants Wyoming Department of Corrections State Penitentiary Warden, WYDOC Director, WYDOC Director, Judy Uphoff, Vance Everett, Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden, James Hewitt, David Ebell, Wyoming Department of Corrections State Penitentiary Complex

Case: 2:02-cv-33 As of: 03/18/2016 01:34 PM MDT 28 of 28

08/27/2007 08/28/2007 08/28/2007 08/28/2007 08/28/2007
08/28/2007 09/10/2007 09/11/2007 09/13/2007 09/13/2007 09/17/2007
12/18/2009

Administrator, Wyoming Department of Corrections State Penitentiary Security Officer, Wyoming Department of Corrections State Penitentiary Security Officer.(EXHIBITS NOT SCANNED−EXHIBIT A FILED UNDER SEAL) (sjs, ) (Entered: 08/17/2007)
300 UNCONTESTED MOTION for Extension of Time filed by Plaintiff Brad Skinner. (Attachments: # 1 Proposed Order # 2 Proposed Order)(sjs, ) (Entered: 08/27/2007)
301 AFFIDAVIT (DECLARATION) of Stephan L Pevar filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 08/28/2007)
302 PLAINTIFFS' EXHIBITS filed by Plaintiff Brad Skinner. (FILED UNDER SEAL)(sjs, ) (Entered: 08/28/2007)
303 MOTION for Preliminary Injunction and brief in support filed by Plaintiff Brad Skinner. (sjs, ) (Entered: 08/28/2007)
304 ORDER by the Honorable Clarence A Brimmer granting 300 Motion for Extension of Time. As soon as Defendants comply with Local Rule 7.1(b)(2), Plaintiffs will have ten days to file their response to Defendants' Second Motion. The deadline for doing so will be September 10, 2007, or ten days from the date Defendants file their proposed findings of fact and conclusion of law, whichever is later.(sjs, ) (Entered: 08/28/2007)
305 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Defendants Wyoming Department of Corrections Director, Wyoming Department of Corrections State Penitentiary Warden. (sjs, ) (Entered: 08/29/2007)
306 NOTICE of non−objection to defendants second re 298 MOTION for Order for Termination of Final Decree and Prospective Relief by Plaintiff Brad Skinner (sjs, ) (Entered: 09/10/2007)
307 NOTICE of Hearing: In court hearing regarding all pending matters set for 9/18/2007 01:30 PM before Honorable Clarence A Brimmer. (szf, ) (Entered: 09/11/2007)
308 MOTION to Dismiss Motion for Preliminary Injunction, filed by Plaintiff Brad Skinner. (sjs, ) Proposed Order (sjs, ). (Entered: 09/13/2007)
309 ORDER by the Honorable Clarence A Brimmer finding as moot 303 Motion for Preliminary Injunction and vacate the September 18, 2007 hearing set by the Court on Motion.(sjs, ) (Entered: 09/14/2007)
310 ORDER by the Honorable Clarence A Brimmer granting 298 SECOND MOTION for Order for Termination of Final Decree and Prospective Relief. Ordered that the prospective relief previously ordered by the Court in this matter is hereby terminated.(sjs, ) (Entered: 09/18/2007)
311 RECEIPT FOR EXHIBITS filed by Plaintiff Brad Skinner. (szf, ) (Entered: 12/18/2009)

 
 Skinner v. Uphoff, 175 Fed.Appx. 255 (2006)

175 Fed.Appx. 255 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter. See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Tenth Circuit Rule 32.1.
(Find CTA10 Rule 32.1) United States Court of Appeals,
Tenth Circuit.
Brad SKINNER, on his own behalf and on behalf of all other persons similarly situated, Plaintiff,
Derrick R. Parkhurst, Appellant, v.
Judith UPHOFF, Director, Wyoming Department of Corrections (“WDOC”); Vance Everett, Complex
Administrator, Wyoming State Penitentiary (“WSP”); James Hewitt, Security Officer, WSP;
David Ebell, Security Officer, WSP, in his individual and official capacities; Scott Abbott, Warden, WSP; Robert E. Ortega, Director, WDOC, in his official capacity, Defendants–Appellees.
No. 05–8098. | April 11, 2006.

Attorneys and Law Firms

*256 Shirley Kingston, Graves, Miller & Kingston, Cheyenne, WY, for Plaintiff.

Derrick R. Parkhurst, Rawlins, WY, pro se.

David L. Delicath, Wyoming Attorney General, John W. Renneisen, Deputy Attorney Gen., Attorney General for the State of Wyoming, Cheyenne, WY, for Defendants– Appellees.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

Opinion

ORDER AND JUDGMENT*

*

After examining appellant’s brief and the appellate

record, this panel has determined unanimously that oral

argument would not materially assist the determination

of this appeal. See Fed. R.App. P. 34(a)(2) and 10th

Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument. This Order and Judgment is not

binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be

cited under the terms and conditions of 10th Cir. R.

36.3.

EBEL, Circuit Judge.
This pro se appeal challenges the district court’s denial of a motion for relief from judgment and other various motions filed by ten members of a civil rights class consisting of all current and future inmates at the Wyoming State Penitentiary (“WSP”). The ten class members filed the *257 motions following the grant of summary judgment and award of injunctive and declaratory relief in favor of the plaintiff class members generally. One of those ten class members, Derrick Parkhurst, appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND Mr. Parkhurst was a member of a certified class of inmates that included all current and future inmates of WSP in an action challenging conditions at WSP. The class asserted various civil rights claims against various Wyoming corrections officials (collectively, “Defendants”), seeking injunctive relief requiring Defendants to take all necessary and proper steps to protect the class from assaults by other inmates. Stephen Pevar, an attorney employed by the American Civil Liberties Union Foundation, represented the class.
On November 27, 2002, the district court granted summary judgment in favor of the plaintiff class members, awarding injunctive and declaratory relief. The court then approved a remedial plan, which sought to improve inmate safety at WSP by requiring Defendants to: 1) adequately supervise and train WSP staff; 2) develop an effective internal review process for reporting policy violations; and 3) discipline malfeasant employees.
On August 18, 2005, Derrick R. Parkhurst and nine other class members filed a pro se motion for relief from judgment, asking the district court to set aside its grant of summary judgment and to re-open the case for litigation on the issue of overcrowding at WSP because the class attorney had failed to notify the class members of the underlying class action suit. They also requested that the district court recuse itself and appoint new class counsel. After a hearing, the district court denied the motions. This pro se state prisoner appeal, filed by Mr. Parkhurst, followed.
II. DISCUSSION This appeal raises a very narrow issue: whether the district court erred in denying the motions for relief from judgment, the motion for appointment of new counsel, or
1

Skinner v. Uphoff, 175 Fed.Appx. 255 (2006)

the motion for recusal with regard only to the underlying civil rights class action. We review each of those denials in turn.

A. Rule 60(b) Motion for Relief from Judgment On appeal, Mr. Parkhurst contends that the district court erred by denying his and nine other class members’ request for relief from the district court’s November 27, 2002 judgment in favor of the plaintiff class members. Specifically, he argues that he and these other class members were given inadequate notice at every critical stage of the proceeding. He argues that, due to this lack of notice, the judgment in favor of the plaintiff class members does not adequately address the problem of overcrowding at WSP. He therefore contends that he and the other prisoners should not be bound by the district court’s judgment. Reviewing the district court’s denial for an abuse of discretion, Sorbo v. United Parcel Serv., 432 F.3d 1169, 1177 (10th Cir.2005), we affirm the district court’s decision.

1. Notice of critical stages of the class action proceedings [1] Federal Rule of Civil Procedure 23 governs class actions in federal court. That rule expressly requires notice only in actions certified under Rule 23(b)(3); that is, where damages are being sought for the class. See Fed.R.Civ.P. 23(c)(2)(B). Where, as here, a class is certified under *258 Rule 23(b)(2), notice is discretionary.1 See Fed.R.Civ.P. 23(c)(2)(A) (“For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class.”) (emphasis added). Thus, Rule 23 did not require that any notice be given. Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir.2004) (quotations omitted).2

1

Mr. Parkhurst alleges that courts appear to be in

disarray on the requirement of notice to class members

in cases brought under Rule 23(b)(1) or (b)(2). The

majority of cases to which we presume Mr. Parkhurst is

referring were all decided before Rule 23 was amended

in 2003 and the provision in Rule 23(c)(2)(A) added.

Prior to that time, Rule 23(c)(2) expressly dealt only

with notice in Rule 23(b)(3) actions. As a result, prior

to the 2003 amendments, courts reached inconsistent

results as to whether members of classes certified under

23(b)(1) or 23(b)(2) must also be given notice.

We note that even after the 2003 amendments some

courts have expressed concerns regarding the

constitutionality of not providing notice to class

actions for monetary relief that are certified under

Rule 23(b)(2). Reeb v. Ohio Dep’t of Rehab. and

Corr., 435 F.3d 639, 658 (6th Cir.2006) (Keith, J.,

dissenting); see also In re Monumental Life Ins. Co.,

365 F.3d 408, 416–17 (5th Cir.2004) (“Though rule

23 does not explicitly extend these safeguards to rule

23(b)(2) classes, due process requires the provision of notice where a rule 23(b)(2) class seeks monetary damages.”). Here, however, the plaintiff class members sought and the court awarded only injunctive relief.

2

Notice was also not required under Fed.R.Civ.P. 23(e)

because this case was resolved by summary judgment,

not by a settlement or compromise. See Fed.R.Civ.P.

23(e)(1)(B) (“The court must direct notice in a

reasonable manner to all class members who would be

bound by a proposed settlement, voluntary dismissal, or

compromise.”).

The district court in this case did not direct that any notice be given to the class in this case. The Committee Note to Rule 23 cautions that the district court must exercise the discretion granted by Rule 23(c)(2)(A) with care, for several reasons:
there may be less need for notice than in a(b)(3) class action. There is no right to request exclusion from a(b)(1) or (b)(2) class. The characteristics of the class may reduce the need for formal notice. The cost of providing notice, moreover, could easily cripple actions that do not seek damages. The court may decide not to direct notice after balancing the risk that notice costs may deter the pursuit of class relief against the benefits of notice.
Fed.R.Civ.P. 23, advisory committee’s note (2003 amendments). Here, the plaintiff class members sought only injunctive relief in their civil rights class action suit, and the district court stated that it “did not see fit to require notice to all potential class members.” Accordingly, solely for purposes of the class action, we conclude that the district court did not abuse its discretion under Rule 23 by not directing that notice of the class action proceedings be given to members of this (b)(2) class. As a result, we also conclude that the district court did not abuse its discretion by denying Mr. Parkhurst’s Rule 60(b) motion for relief from judgment.
Our decision, however, is very limited. We hold only that, with regard to the underlying class action in this case, the district court did not abuse its discretion by denying Mr. Parkhurst or the other nine members of the class relief from the court’s judgment in favor of the plaintiff class members. We do not address whether the district court’s
2

Skinner v. Uphoff, 175 Fed.Appx. 255 (2006)

judgment has any res judicata effect on future claims members of the class may decide to raise in a subsequent proceeding.3 We therefore *259 also do not address whether due process concerns regarding the adequacy (or lack thereof) of notice to the class members may itself preclude any res judicata effect. Under the circumstances of this case, we believe that those issues would be more appropriately resolved in a proceeding where one of the class members, if one of the members chose to do so, actually asserts such a claim against the Defendants, rather than attempting to resolve such hypothetical issues on appeal from the denial of a motion for relief from judgment.

3

We note that the district court stated, in its Rule 60(b)

order denying Mr. Parkhurst and the nine other

members of the class relief from judgment in favor of

the plaintiff class members, that “[o]vercrowding is not,

and never has been, an issue in this case.” Additionally,

the Government conceded in its brief on appeal that

“[t]he district court’s summary judgment order did not

address the merits of the overcrowding issue.

Therefore, the first element of res judicata is not

present, so res judicata does not apply.” These issues

will need to be resolved in a relevant subsequent

proceeding.

In short, we conclude only that the district court did not abuse its discretion by denying Mr. Parkhurst’s Rule 60(b) motion for relief from judgment, and we affirm.

2. Notice of hearing on Rule 60(b) motion for relief from judgment Mr. Parkhurst argues on appeal that the district court erred in forcing him to attend the hearing on the Rule 60(b) motion for which he was given only one hour’s notice.4 At the hearing, Mr. Parkhurst protested the “surprise” of the hearing, claiming that he did not “even know what we’re ... hearing.” We agree with the Defendants that the appropriate remedy would have been to request a recess or a continuance to allow Mr. Parkhurst to prepare. See Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir.1999) (“[T]he most efficacious remedy for litigatory surprise is to seek a continuance at the time the surprise emerges.”). Yet Mr. Parkhurst, a pro se movant, requested neither a recess nor a continuance. In any event, we conclude that Mr. Parkhurst was not prejudiced because, for the same reasons discussed earlier, his motion was meritless.

4

It is not clear from the record whether Mr. Parkhurst

received one or two hours’ notice of the hearing;

however, because we conclude that Mr. Parkhurst was

not prejudiced by the limited notice, we will assume for

purposes of our analysis that he was given only an

hour’s notice.

B. Class Counsel Mr. Parkhurst also challenges the representation provided by Mr. Pevar, the class counsel. First, Mr. Parkhurst argues that the district court erred in permitting Mr. Pevar to argue against the Rule 60(b) motion. Second, Mr. Parkhurst argues that the district court erred by refusing to appoint new counsel because Mr. Pevar failed to give notice to the class members and argued against re-opening the civil rights class action suit at the hearing on the Rule 60(b) motion. We reject both of these arguments and affirm the district court’s decision.
1. Mr. Pevar’s presentation of arguments refuting Parkhurst claims in the Rule 60(b) motion for relief from judgment Mr. Pevar, in responding to the motion for relief from judgment, argued that he had adequately represented the class and that Mr. Parkhurst and the other nine class members were not entitled to the relief they sought. On appeal, Mr. Parkhurst argues that the district court erred in permitting Mr. Pevar to make these arguments because they went against the interests of those class members who jointly filed the Rule 60(b) motion. We note first that Mr. Parkhurst did not object to Mr. Pevar’s legal arguments at the hearing on that motion. Additionally, assuming that permitting Mr. Pevar to assert his legal arguments at the hearing *260 was error, Mr. Parkhurst was not prejudiced. Mr. Pevar’s arguments were not detrimental to any of the class members because, for the reasons discussed earlier, the motion for relief from judgment was meritless.
2. Appointment of new counsel [2] Mr. Parkhurst also argues that new class counsel should have been appointed under Fed.R.Civ.P. 23(g) and 28 U.S.C. § 1915. Assuming Mr. Parkhurst, who was not the designated plaintiff in the underlying class action suit, may raise such a request, we conclude that the district court correctly denied it. We therefore also deny Mr. Parkhurst’s renewed motion on appeal for appointment of counsel.
Rule 23(g) requires appointment of class counsel where a class has been certified under Rule 23, unless otherwise provided by statute. See also Rule 23(c)(1)(B) (requiring appointment of class counsel when district court certifies class). In this case, the district court appointed Mr. Pevar. According to Mr. Parkhurst, however, Mr. Pevar has done “a woefully inadequate job in this case;” failed to “take
3

Skinner v. Uphoff, 175 Fed.Appx. 255 (2006)

his professional duties seriously;” “was derelict to the point where it could be argued that he sold his clients out;” “was grossly negligent;” “did not represent the Plaintiff class at all;” and attempted to “lead [Mr. Parkhurst] down the garden path.” Mr. Parkhurst therefore contends that the district court erred by refusing to appoint new counsel to represent the inmates of WSP.
We reject Mr. Parkhurst’s characterization of Mr. Pevar’s representation and instead agree with the district court’s characterization. As the district court described, “Mr. Pevar has done a tremendous job representing the inmates of WSP in this case. He has been a zealous advocate from the beginning and, as a result of such efforts, has been a tremendous force in improving the conditions at WSP.” The district court therefore ruled that “Mr. Pevar’s representation [was] more than adequate in this case” and found “no reason to replace [him] with alternate counsel.” Because we agree, and because we have additionally rejected Mr. Parkhurst’s claim that Mr. Pevar failed to give adequate notice to the class members and improperly argued against the class members’ interests, we affirm the district court’s refusal to appoint new class counsel. For the same reasons, we also deny Mr. Parkhurst’s renewed motion on appeal for appointment of counsel to represent the inmates of WSP in this matter.
To the extent that Mr. Parkhurst also argues that counsel should have been appointed to represent him in arguing the Rule 60(b) motion and/or other various motions, we affirm the district court’s refusal.5 In McCarthy v. Weinberg, 753 F.2d 836 (10th Cir.1985), we held that 28 U.S.C. § 1915(d) vests the district court with considerable discretion whether to appoint counsel. “Only in those extreme cases where the lack of counsel results in fundamental unfairness will the district court’s decision be overturned.” Id. at 839. In determining whether to appoint counsel, the district court must consider “the merits of the litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity of the legal *261 issues raised by the claims.” Long v. Shillinger, 927 F.2d 525, 527 (10th Cir.1991). Because we have found all of Mr. Parkhurst’s motions before the district court to be meritless, we hold that he has not successfully demonstrated that his is an extreme case meriting an appointment of counsel. Accordingly, the district court did not abuse its discretion, and we therefore affirm the district court’s refusal to appoint counsel under § 1915.

5

We note that Mr. Parkhurst and the nine other members

of the class have neither been certified as a separate

class nor requested class certification, and thus they do

not independently invoke the requirements of appointed

class counsel under either Rule 23(c)(1)(B) or 23(g).
C. Recusal of the District Court Judge Mr. Parkhurst contends that the district court should have recused himself from the proceedings underlying this appeal. “We review the denial of a motion to recuse for abuse of discretion....” Higganbotham v. Okla. ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir.2003). We cannot say that the district judge’s decision not to recuse himself in this case was “manifestly unreasonable, much less arbitrary, capricious, or whimsical.” Id.
Even if it were an abuse of discretion, we would conclude that the error was harmless. “In deciding whether a violation of [28 U.S.C.] § 455 is harmless, we consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Id. at 645–46 (quotations, alterations omitted). Mr. Parkhurst’s arguments for recusal rest primarily on the fact that the district court judge failed to give the class members notice and permitted Mr. Pevar to argue against the Rule 60(b) motion. Having rejected both of those arguments, we conclude that none of the risks outlined in Higganbotham is present in this case. Thus, an error by the district court judge in not recusing himself would have been harmless under the circumstances of this case.
III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of the Rule 60(b) motion for relief from judgment; AFFIRM the district court’s denial of the motion for appointment of new counsel and DENY the renewed motion on appeal for appointment of counsel; AFFIRM the district court’s denial of the motion for recusal of the district court judge; and DENY the request for expansion of the record.
We remind Mr. Parkhurst that, although the district court granted him in forma pauperis status, he remains obligated to continue making partial payments until the entire fee is paid. We further remind him of the need to pay past filing fees or risk having his future appeals dismissed.
Parallel Citations 2006 WL 925813 (C.A.10 (Wyo.))
	  

4