LaMarca v. Turner
m • • • • • wa « • • •••
PC-FL-007-030

UNITED STATES DISTRICT COURT

FOR THE

2

SOUTHERN DISTRICT OF FLORIDA

3

4

5 ANTHONY LaMARCA, et al.,

6

Plaintiffs,

7 VS.

8 CHESTER LAMBDIN, et cetera., Defendant.
9

Case No.82-8196 Civ- PAINE

10

West Palm Beach, Florida

11

January 8, 1990

12

9:30 a.m.

13 APPEARANCES:

14

DAVID MICHAEL LIPMAN and WILLIAM ROBERT AMLONG,

ESQS., on behalf of the Plaintiffs.

15

MICHAEL B. DAVIS and WALTER M. MEGINNISS,

16

ESQS., on behalf of the Defendants.

17

18

19

The above-styled case came on for Trial before

the Hon. James C. Paine, U.S. District Court, at the U.S.

20 Federal Courthouse, West Palm Beach, Florida, on the 8th

day of January, 1990.

21

VOLUME 1

22

23

24

!**

25

Pauline A. Stipes Official Federal Reporter

T|| '

INDEX

2

WITNESS

DIRECT

CROSS

RICHARD SWANSON 3 3

96

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

REDIRECT RECROSS

Pauline A. Stipes Official Federal Reporter

1

THE COURT: This case is LaMarca against

2 Turner, 82-8196. Counsel please state appearances.

3

MR. LIPMAN: David Lipman on behalf of the

4 plaintiffs.

5

MR. AMLONG: William Amlong, co-counsel for the

6 plaintiffs.

7

MR. TUCKER: James Tucker, co-counsel for the

8 plaintiffs.

9

MR. MEGINNISS: Walter Meginniss, Department of

10 Legal Affairs. Michael Davis is on his way with exhibits,

11 Your Honor, I would like to make his appearance through me.

12

THE COURT: All right.

13

MR. MEGINNISS: I would like to state the style

14 of the case is LaMarca against Chester Lambdin, since it

15 has to do with injunctive relief, and Mr. Turner is no

16 longer superintendent of Glades Correctional Institutional.

17

THE COURT: Is there some paper that has been

18 filed to that effect?

19

MR. MEGINNISS: Not that I am aware.

20

THE COURT: I think that would be appropriate.

21

MR. LIPMAN: Yes, we will prepare an order to

22 that effect that it is Mr. Lambdin.

23

THE COURT: All right. We will await that

24 order, and I will sign it without any problem.

25

THE COURT: All right. Now that everyone is

Pauline A. Stipes Official Federal Reporter

aware, we are here as a result of action that was taken

2 when we had a statues hearing in this case last fall, in

3 October, 18th, I believe it was, and it was agreed then

4 that we would give a little time for additional discovery,

5 and then we have an evidentiary hearing with respect to

6 whether or not injunctive relief is appropriate, and, if

7 so, what sort of relief as opposed to the idea that we

8 would necessarily appoint a committee or committees to try

9 X-o make some recommendations in that respect.

10

I think counsel for both sides agree that at least

11 provisionally or possibly it wouldn't be necessary for

12 there to be committees, you might be able by- di srover^ to ~i

13 get together sufficient information and present it to the

14 court so that a determination could be made on the matter

15 of injunctive relief in that way as we previously thought >s 16 would be the best way to handle it.

17

This case has been appealed, and the appellate court

18 sent it back saying they don't want to deal with it until

19 we laid to rest all the issues at the trial level. This

20 issue as far as injunctive relief is concerned is the main

21 one, if not the only one that we need to deal with before

22 the appellate court would review what has been done earlier

23 in the case.

24

I will call upon the plaintiffs to call such

25 witnesses as they deem appropriate, and we will ask counsel

Pauline A. Stipes Official Federal Reporter

1 for the defendant to present their evidence.

2

MR. LIPMAN: Before we commence our

3 presentation of evidence, I thought if I might in just a

4 couple minutes offer the court a brief overview of where we

5 are, and what is behind us.

6

THE COURT: All right. That is fine.

7

MR. LIPMAN: — w h a t the issues are, because I

8 think we can expedite the proceedings this week once I am

9 able to review what we have identified are the problems.

10

THE COURT: All right. I think that is likely

11 to be very helpful.

12

Mr. Meginniss, do you have some input?

13

MR. MEGINNISS: I have a request to make. I

14 would note we have one of the named plaintiffs in

15 attendance by the name of Martin Saunders. I would like to

16 j.nvoke the Rule of sequestration, and point out to the

17 court with the order entered by His Honor, October 12, '
•3 18 1984, those members of the class were determined to be

19 persons who will or will be incarcerated at Glades

20 Correctional Institutional, located in Belle Glade,

i

21 Florida. The court deems as to those individuals who have

22 been in the past incarcerated at Glades but no longer so

23 incarcerated should not be members of the class seeking

24 injunctive relief. Injunctive relief to them would be

25 moot.

Pauline A. Stipes Official Federal Reporter

1

I would request tfie rule of sequestration be invoked,

2 and I would request that Martin Saunders not be a member of

3 the proceedings. His damage suit is over, and the problem

4 I am confronted with, I fear he may very well, through

5 other witnesses, contact the other inmates here, and

6 perhaps infringe on their objectivity for their testimony;

7 and I would make that motion at this time, sir.

8

THE COURT: All right. What is the plaintiffs'

9 position in that respect?

10

MR. LIPMAN: Mr. Saunders, as counsel pointed

11 out correctly, is a member — was one of the several

12 inmates to which monetary damages were awarded, and also

13 based upon the definition of the class, since he no longer

14 resides at Glades Correctional Institution would not be an

15 appropriate representative for purpose of injunctive

16 relief.

17

gince, however, he is affected by the proceedings,

18 specifically in terms of his damage award, and because we

19 thought it would be appropriate to have at least one

20 plaintiffs' member bear witness to the proceedings, we ask

21 that he be able to remain in the courtroom with the

22 provision that I will instruct him not to discuss the

23 proceedings with any of the sequestered witnesses, which I

24 think would be the general rule in any civil litigation.

25

THE COURT: All right. It seems to me that it

Pauline A. Stipes Official Federal Reporter

1 wouldn't be inappropriate to allow Mr. Saunders to remain

2 in view of the history of this case, but I do think he

3 should be carefully instructed, and I will rely on counsel

4 to do that under the requirements of Rule 615, he is not to

5 relate to the witness what testimony has been with respect

6 to other witnesses who may have offered evidence before the

7 particular witness comes on the stand. You will have to

8 instruct him carefully that he has to keep his

9 communications with people who are going to testify, if he

10 has any at all, to exclude anything that may have happened

11 in this courtroom prior to the time they have taken the

12 stand.

13

That motion is denied, but with the qualification

14 that I have stated.

15

MR. MEGINNISS: Yes.

16
I

THE COURT: Now, Mr. Lipman, you want to make

17 your opening statement? I will I will call on counsel for

18 the defendants to do that when you are through.

19

MR. LIPMAN: If I may, Your Honor, thank you

20 very much.

21

MR. DAVIS: Your Honor, may I be heard on a

22 matter?

23

THE COURT: Yes, Mr. Davis.

24

MR. DAVIS: We have a motion to produce, Your

25 Honor, which is based on — it is a motion to compel

Pauline A. Stipes Official Federal Reporter

1 production of documents.

2

MR. LIPMAN: I may be able to short cut this.

3 If it is a motion that was served yesterday, we have

4 determined that the motion is appropriate, and we are in

5 the process right now copying the questionnaires, which is

6 a matter in motion.

7

THE COURT: Are you talking about the same

8 motion?

9

MR. LIPMAN: I think we are.

10

MR. DAVIS: And to the quotes set forth in the

11 motion?

12

MR. LIPMAN: Yes, the questionnaires, and the

13 typed answers.

14

THE COURT: Sounds like that motion is moot,

15 and you will comply as rapidly as you are able to.

16

MR. LIPMAN: They are being copied now, and we

17 should have them now.

18

MR. TUCKER: They were copied quarter to 9,

19 they should be ready within minutes.

20

MR. LIPMAN: We will furnish them to counsel.

21

THE COURT: Okay.

22

MR. LIPMAN: Your Honor, if I may, insofar as

23 an opening presentation I offer the following view, and

24 that is, as I understand the charter for the proceedings

25 beginning this morning, it is to complete the addressing of

Pauline A. Stipes Official Federal Reporter

T~ injunctive relief which may or may not be required
2 presently based upon past and current conditions that exist

3 at GCI as guided by His Honor's findings back in 1987, and

4 given the passage of time, and over the last several months

5 since we were together in October, we have retained the

6 services of Dr. Swanson and Dr. Caddy who were the experts

7 that—the experts the court is familiar with, and who

8 testified in this case. They have completed their

9 assignments. Inmates have been interviewed, documents have 10 been reviewed, and we are ready to announce to the court on

11 a whole host of areas in terms of specific practices and

12 conditions, which should be outlined for His Honor this

13 morning by Dr. Swanson. jjfe belief that compliance has 14 occurred, or conditions have changed in such a manner that^ 15 as to those conditions and practices, we no longer seek 16 injunctive relief^.

17

That is the good news, that a lot of this is now

18 behind us, and we will be able to itemize and outline for

19 is Honor, through our first witness, Dr. Swanson, with
/
2 0 r some specificity exactly which practices and conditions we
/
believe have been changed over the months, and years, and,

22 therefore, no longer seek injunctive relief. \

23

Now, as to those matters that we do continue to seek

24 injunctive relief, I think I can itemize six areas for His

25 Honor for consideration.

Pauline A. Stipes Official Federal Reporter

Again, you will Hear testimony from Dr. Swanson, Dr.

2 Caddy, several adverse witnesses, and we hope to minimize

3 and expedite the need for inmate testimony, but may need to

4 call two or three witnesses. Hopefully they will be brief.

5

The six areas which we continue to seek injunctive

6 relief relate to as follows: First, we have a concern that

7 the officers in the dormitories, the open bunk setting, at

8 Glades continue not to patrol the areas in the dorms on a

9 regular basis and remain in the wicket area.

10

Dr. Swanson will address that, and we have a

11 videotape Dr. Swanson has prepared so as to offer His Honor

12 an actual picture tour of the configuration of the physical

13 facilities at Glades so we can point this matter out.

14

As a second issue, .since the 1985 proceedinqs, a new

15 compound has been built at Glades which has been referred

16 to as the cannery. It is new, and increased the

17 population.

18

THE COURT: Referred to as what?

19

MR. LIPMAN: The cannery area. It is a new

20 compound. This is a new addition that has been built to

21 Glades since the fall of '85.

22

Dr. Swanson, through his work has expressed concerns

23 with regard to security insofar as the flow of inmates,

24 j.nqress and egress of inmates into the cannery, and back

25 into the main compound, which was the previous existing

Pauline A. Stipes Official Federal Reporter

LO

1 facilities at Glades, and he will be amplifying and

2 discussing that problem, insofar as it needing to be

3 addressed through some type of injunctive relief.

4

A third area which is more familiar to His Honor in

5 terms of where we have been since the fall of 1985 concerns

6 protective confinement. That is, of course, those cells in

7 the confinement area where an inmate typically voluntarily

8 requests to be housed because of a security problem or

9 perceived security problem. The nature of the problems

10 that will be elicited through Dr. Swanson that continue to

11 e_xist a s to protective confinement concern double bunking

12 jn certain protective confinement c e l l s , simply that two

13 ijimates are housed in these rather small cells at the same

14 time.

15

The failure to provide any substantive mental health

16 services for these inmates who are typically the most,

17 vulnerable inmates, and express security and concern that

18 led them to be placed in the protective confinement.

19 Various problems in protective confinement relating to the

2 0 physical conditions, lighting, sanitation, etc., actually,

21 of the cells, and, finally, the problem relating to the

22 fact that if an inmate voluntarily requested to be placed

2 3 jn protective confinement, because of a perceived security

24 problem, or actual security problem, they have been

25 attacked, or perceive they have been attacked, raped, or

Pauline A. Stipes Official Federal Reporter

assaulted, what have you^ they are in a sense punished,

2 because they lose certain facets of good time, and also, I

3 think the term is gain time, and also are ineligible for

4 certain programs that exist to inmates who remain in the

5 dormitory setting.

6

Dr. Swanson will be addressing these series of

7 problems with respect to protective confinement.

8

A fourth area that we continue to seek injunctive

9 relief, and I want to qualify this, it is no longer of the

10 magnitude and terms of the problem that was defined and

11 found in 1985, but the problem, nonetheless, still exists

12 to a lesser degree, concerns the flow of contraband in the

13 prison, and that relates to many of the same issues that

14 were raised in the proceedings in the fall of 1985, and

15 found by Your Honor specifically as to weapons, as to

16 drugs, and as to currency among inmates.

17

A fifth area that we seek injunctive relief relates

18 to general sexual activities and pressures placed on

19 inmates by other inmates, and again, the magnitude of this

20 problem has been decreased since His Honor's findings and

21 the proceedings in the fall of 1985, but there are still

22 some problems that exist that Dr. Swanson will address,

23 particularly in terms of staff condoning and approving

24 overt sexual activity which seems to be permitted among

25 inmates.

Pauline A. Stipes Official Federal Reporter

A final area that Dr. Swanson will briefly touch on,

2 but will be developed through adverse witnesses, and Dr.

3 Caddy relates to a facet of relief that have been explored

4 by the court in terms of a psychological, a committee of

5 psychologists that would be appointed to provide and

6 address a program of theraputic service for those inmates

7 that have been assaulted or raped. It is our position that
8 no program exists at GCI to provide for a support service

9 of proper psychiatrical and emotional counseling, for those

10 inmates that have experienced sexual assaults.

11

Those are the six areas that we seek injunctive

12 relief. As I stated, they will be developed through the

13 two expert witnesses, Dr. Swanson, to a much more limited

14 degree Dr. Caddy, through adverse witnesses, several

15 documents, and some brief inmate testimony.

16

I do have a final footnote to our presentation. It

17 does not fit within our charter for this week, but I ask

18 the court to consider the following: Mr. Saunders and his

19 family have contacted me and have been in contact with my

20 pffice virtually on a monthly basis since the January, 1986

21 decision was rendered. The nature of those communications

22 is that Mr. Saunders has maintained that certain

23 retaliatory actions have been taken against him due to his

24 participation in the LaMarca case.

25

As an officer of the court, I can stand and tell you

Pauline A. Stipes Official Federal Reporter

.3 1 that we have done a~tTToYough investigation~and have found 2 no objective evidence of any retaliation, but based upon

3 Mr. Saunders' experiences, he believes he has been

4 retaliated against for his participation, and we would

5 request that Mr. Saunders be permitted to testify very

6 briefly and explain to His Honor the circumstances

7 surrounding retaliation that has occurred based upon his

8 experience.

9

Thank you very much, Your Honor.

10

I do have an exhibit list, and witness list that we

11 had prepared, and I understand the clerk called my office

12 last week.

13

THE COURT: Yes, if you hand those to Margaret,

14 it would be helpful.

15

MR. LIPMAN: Your Honor, implicit in my

16 overview, I don't think we would need the amount of time we

17 suggested in October given the fact that we have returned

18 to the scene, so to speak, and have found many of the

19 conditions to have been rectified. I just say that so Your

20 Honor can plan your cases for the rest of the week. It

21 would surprise me if our presentation would take more than

22 a day and a half.

23

THE COURT: All right. That is good news.

24

Mr. Meginniss or Mr. Davis, would you make such

25 opening statement as you deem appropriate, and comment on

Pauline A. Stipes Official Federal Reporter

.4

I t h e last request whether or not there should be any

2 opportunity for Saunders to state whatever he wants to with

3 respect to the claimed retaliation.

4

And let me know what you think about the time

5 requirements as well, please, sir.

6

MR. DAVIS: Your Honor, to begin with, we have

7 a problem with some of the items which have been indicated

8 that the plaintiff intends to pursue before the court.

9

Particularly those items having to do with alleged

10 psychological or psychiatric deficiencies at Glades

11 Correctional.

12

First, it is not part of the pleadings in this case,

13 and if the court will refer to the third amended complaint,

14 which is the pleading upon which this case is proceeding at

15 this time, there is no allegation under the prayer for

16 general injunctive relief indicating alleged psychological 17 or psychiatric deficiencies, and the re is nc) prayer for

18 such relief.

19

Secondly , this iss a matter before the United States

20 District Court for the Middle Di stri ct of Florida in 21 Costello, and is under that Court's current -jurisdiction,

22 and we have a motion to present before this court to

23 suggest that it would be improper for this court to

24 undertake consideration of a matter which another Federal

25 District Court already has jurisdiction of.

Pauline A. Stipes Official Federal Reporter

1

THE COURT: That is the case that Judge Susan

2 Black has, is that right?

3

MR. DAVIS: Yes. That is under active

4 consideration by the court in that case. They have a

5 committee which has surveyed Glades Correctional, and has

6 taken that matter under consideration.

7

THE COURT: Now, give me the name of that case

8 if you have it handy. I am aware of the case, and can find

9 it.

10

MR. DAVIS: Costello versus Dugger. Case

11 number 72094-Civ, J., 14, and 72102-Civ, J., 134.

12

THE COURT: All right. You are referring to

13 the six area that was mentioned here?

14

MR. DAVIS: And to apportion of what counsel

15 indicated he intended to pursue under the third area,

16 protective confinement, failure to provide mental health

17 services.

18

THE COURT: Yes, did he mention that in that

19 connection

20

All right, I will ask Mr. Lipman to respond to that

21 position of yours with respect to Costello versus Dugger

22 case after you have concluded the rest of your opening

23 remarks.

24

MR. DAVIS: Let me indicate to the court we do

25 not have an outline of what we intend to prove, because,

Pauline A. Stipes Official Federal Reporter

16

1 obviously, we are in a position of responding to what the

2 plaintiff is asserting, and we have not until today gotten

3 an outline of exactly what the plaintiff intended to

4 present in the way of issues. We will indicate the

5 evidentiary presentation that we intend putting on.

6

Let me address the Saunders issue. It has not been

7 presented to this court by pleadings. It seems to be a

8 matter of similar type presented to the court previously,

9 by an inmate by the name of Pryor, and it should be handled

10 in a similar matter, that is, by a separate proceeding

11 brought before the court on notice and upon pleading.

12

We have a witness and exhibit list. Does Your Honor

13 want the original to be filed with the clerk?

14

THE COURT: You can file the original, or give

15 it to Margaret, she will file it. Let us have a copy to

16 work with.

17

MR. DAVIS: Your Honor, we listed approximately

18 150 witnesses. We did so, because we did not know what the

19 scope of the plaintiffs' proof was going to be. We can

20 tell the court we have several expert witnesses, an expert

21 by the name of Daniel Lockwood who is an expert in prison,

22 and prisoner behavior. A member of the faculty of Syracuse

23 University, and Fred Frey former federal prison warden, and

24 accreditation committee member for the American Corrections

25 Association.

Pauline A. Stipes Official Federal Reporter

1

We have also listed an expert psychologist to address

2 the psychological issues because we anticipated in view of

3 some questions that were addressed to GCI personnel on

4 depositions a couple weeks ago that such issues might be

5 raised, but we don't anticipate needing him if the Court's

6 ruling is as we think it should be, which psychological

7 issues are not properly raised before this court, either

8 because the pleadings do not address the issues, or because

9 jurisdiction is properly before United States District

10 Court for the Middle District of Florida.

11

We have various staff members from GCI listed of whom

12 we would anticipate at a minimum calling at least 6 or 7.

13 Members of the Inspector General's staff, members of the

14 Office of the State Attorney, members of the staff of Palm

15 Beach County Sheriff's Department, Leon Peters, a former

16 member of the staff of GCI, members of the Inspector

17 General's staff. I think I mentioned that previously, and

18 individuals from Palm Beach Community College, and Indian

19 River Community College who are training officers for the

20 correctional officer training programs.

21

Our exhibit list is virtually complete, but not

22 complete. We have four, five more items which we intend to

23 add to this, and will present it to the court later today.

24 We did not receive the request for the list and for the

25 marking of exhibits until Friday, I believe. We spent the

Pauline A. Stipes Official Federal Reporter

18

1 weekend preparing this. We also have most of the exhibits

2 marked, but there are several groupings of exhibits which

3 are substantial in size. They number in one instance,

4 probably over two thousand pages of documents, and we would

5 hope not to have to utilize all of them, and rather than,

6 marking them all, and presenting them initially at the

7 trial, counsel on the other side has copies of the items

8 from which they are derived in most cases.

9

We would request permission to wait until we begin

10 our presentation before determining precisely how much of

11 those documents would be needed. Those which the

12 plaintiffs do not have, and which are not already in our

13 marked group that we've got, we will have later today or

14 beginning of session in the morning.

15

The issue which I think is particularly critical for

16 the Court's consideration is that proceedings today are

17 governed by the question of the violation of 8th Amendment

18 rights in respect to protection from cruel and unusual

19 punishment, and it is in accordance with the standard of

20 the 8th Amendment all the allegations that the plaintiff

21 seek to raise must be considered.

22

We have also gne additional matter for the Court's

23 consideration, and, unfortunately, I have combined the

24 Court's copy and the Clerk's copy together. This is a

25 motion to consider additional evidence. The court will

Pauline A. Stipes Official Federal Reporter

1 recall ~~this case has been returned upon a finding by the 2 appellate court that there is no final judgment in this 3 cause, that is because until the court has ruled upon the

4 injunctive relief, the determination of the damage issue is

5 not final, and remains pending, nonfinal determination.

6

We have presented to the court initially our concern

7 even before the first trial about a lack of time in order

8 to assemble and present necessary evidence. The court made 9 a number of findings in respect to conditions at GCI which

10 were not based upon direct evidence, but upon inferences

11 drawn from one or two anecdotal accounts by witnesses which

12 the Magistrate, and the court upon acceptance of the

13 Magistrate's order then expanded into an inference of

14 general conditions.

15

There was an absence of direct evidence in the case

16 on those issues, and those were what might be determined

17 sub-issues that have not be put in the pleadings as such.

18 There was a question whether rape kit tests were ever

19 utilized at GCI. There is no allegations of that on the

20 pleadings. It only arose on the last day of the

21 presentation of evidence as any question in that regard.

22

THE COURT: What kind of kits?

23

MR. DAVIS: Rape kit tests. I use that as one

24 example of how a number of sub-issues, which certainly

25 could be considered legitimately flowing from the general

Pauline A. Stipes Official Federal Reporter

20

1 allegations of the complaint, nonetheless because of the

2 time constraints, and the raising of them at the time they

3 were with no pretrial indication to us limited our

4 presentation and our ability to present evidence on that

5 point.

6

Subsequently, we have obtained from the stored

7 records of GCI which took considerable search, and from the

8 records of Palm Beach County Sheriff's Department, and from

9 the records of the State's Attorney of Palm Beach County

10 substantial documentary evidence addressing these issues

11 directly.

12

Attached to the motion is a summary of the

13 documentary evidence relating to specific instances, or

14 incidents. There are approximately 113, as I recall.

15 These are\113 investigations, )formal investigations on

16 igsues of sexual assault, non-sexual assault, possession of

17 contraband, introduction of contraband, and there was one

18 other — I forget which, all of those records which were

19 contemporaneous at the time, directly address the issues

20 raised by the court and will demonstrate that the

21 inferences drawn by the magistrate based on one or two

22 instances from which it was asserted that general

23 circumstances could be inferred are simply wrong. That is

24 the direct evidence clearly and unequivocally shows that on

25 approximately 8 or 10, we've listed them in the motion. 8

Pauline A. Stipes Official Federal Reporter

1 or 10 specific areas which the court Tested a major portion

2 of its findings upon.

3

The direct evidence will demonstrate the erroneous

4 findings of the magistrate. We simply ask the court to be

5 able to present that evidence to the court since the issue

6 is not final so the court can indeed consider whether, in

7 fact, those conditions did exist.

8

Qne of these things the records will show, the court

9 will remember that it found specifically that there was no

10 effort by the superintendent to involve outside

11 ijnvestigative agency such as the state and federal

12 investigative agencies. As the summaries indicate, over

13 one hundred out of the 113 investigations, the Sheriff's

14 Department was involved. Again, indicating a clear

15 erroneous finding by the magistrate.

16

The records will also indicate that the State

17 Attorney's Office was involved in the sexual assault

18 investigations of which there were, I think, about 12 or

19 13, as was the Sheriff's Department, that rape kit tests

20 were given, and if the court will recall, the magistrate

21 found there were no alleged rape investigations, and the

22 records will show there were both, by the staff at GCI, by

23 the Sheriff's Department, and to some extent by the

24 prosecutor's office.

25

Let me indicate that I've mentioned to the court we

Pauline A. Stipes Official Federal Reporter

1 have sheriff's deputies and prosecutors on our witness

2 list. Those are not on the witness list to address these

3 particular issues, although several of those are capable of 4 addressing these issues. They are on the witness list for

5 the temporary issues. They are capable of addressing 6 because of their time span that goes back before 1985 of

7 those earlier issues. So we ask to be able to introduce

8 documentary evidence, and supporting testimonial evidence

9 as necessary to support that documentary evidence.

10

What is particularly critical, if the court would

11 look at the items we have indicated these address, the

12 findings that these particular documents and investigations

13 address, you will find that they are the backbone of the 14 Court's order finding unconstitutional conditions at GCI. 15 More than half of the findings upon which the Court's

16 original order was based are addressed by these issues. 17 Others may be inferentially addressed by these issues.

18

Thank you.

19

THE COURT: All right. Now, I would like there

20 to be response at this time by counsel for the plaintiff to 21 these matters that have been raised here by Mr. Davis,

22 because the rulings on those will affect what we hear here,

23 and the evidence that is put on, and also the questions

24 that are asked to some of these witnesses, some of whom 25 have been identified as persons who may have evidence to

Pauline A. Stipes Official Federal Reporter

B3

1 offer on things that we clearly have before us, but could

2 also offer evidence on other things.

3

I wonder if I could ask you, Mr. Lipman, to comment

4 on these issues.

5

MR. LIPMAN: I would, and if I may, let me go

6 backwards to address Mr. Davis' second concern first, and

7 first concern second.

8

If I understand correctly, for the first time we are

9 told this morning that irregardless of the Court's order in

10 October, that our charter today was to complete injunctive 11 relief as has been requested by the 11th Circuit. That we 12 are now told this morning that defendants wish to reopen

13 the entire liability stage of this case, and present 14 evidence which they perceive will demonstrate that, in 15 fact, demonstrate the myriad of facts, which this court

16 determined fact by fact, and inch by inch covering

17 approximately seventy pages of the reported decision, now

18 ought to be modified, or overturned, and that as an

19 explanation for the reason why that ought to occur is from

20 what I understand the defendants weren't ready for the Fall

21 1985 proceedings.

22

If that is—if that is one of the reasons I heard to

23 justify reopening evidence, my response is, specifically,

24 His Honor traveled through this issue twice before, and let

25 me refer to page 653 and 654 of Your Honor's decision,

Pauline A. Stipes Official Federal Reporter

1 reported at Volume 652 F.Supp., your decision in 1987.

2

In that decision, Your Honor reviewed at some length

3 the issue of the continuance, and the defendants assertion

4 that they were not trial ready. My point is simply, this

5 is the third review of this issue. You reviewed it once in

6 an emergency posture. You were in Miami, and you were

7 trying one of the long drug cases, and we came to you the

8 morning before the trial was to commence before Magistrate

9 Nymkoff in November, 1985, and you denied the motion to

10 continue, and that is Docket Entry 114, and 112, and you

11 wrote about it at some length in the June, 1987 decision.

12

Just seems to me, we will get nowhere, ever, if we

13 return back to the battle front and retry liability. IJ^

14 Your Honor was wrong on the continuance, that ought to be

15 raised on appeal. Parenthetically, it was raised on

16 appeal, and the 11th Circuit never got to it because they

17 felt all the work hadn't been completed. But certainly,

18 that request certainly does not dovetail with the 11th

19 Circuit's order in this case, nor with what we understood

20 Your Honor's charter to be when we appeared in October.

21

So much for reopening the 1985 record.

22

The second request relates to the whole element of

23 psychological services that the inmates might be entitled

24 to in terms of some dimensions of equitable and injunctive

25 relief. If I understand correctly, the defendants'

Pauline A. Stipes Official Federal Reporter

1 argument is two-fold. First, the court does not have

2 jurisdiction under a technical reading of our complaint to

3 provide injunctive relief, that is psychological or

4 psychiatric services; and second, that somehow Costello

5 action, the action before Judge Black preempts, if you

6 will, His Honor's treatment on this issue.

7

Rule 15(b), I think, provides that amendments to

8 complaint to conform to the evidence are permitted. We had

9 two weeks of evidence, Your Honor, relating to the guts of

10 this case which was the testimony involving one plaintiff

11 after another, one witness after another regarding sexual

12 abuse and rapes that occurred. We have evidence from

13 expert witness Dr. Caddy, some testimony from Dr. Swanson.

14 It was fully litigated by defense counsel. It has been

15 other than the monetary issue the single focus of this

16 lawsuit, and always had been.

17

Your Honor, in your June 1987 decision, again, I am

18 reading from the reported decision, page 666, specifically

19 provided that a committee of psychologists or psychiatrists

20 have a charter, and I quote, to prescribe treatment plan to

21 the plaintiffs, and witnesses who remain incarcerated, and

22 develop procedure at GCI to provide support system to rape

23 victims by rape crisis centers.

24

We have litigated the issue. The magistrate ruled on

2 5 the issue. Your Honor has ruled on the issue. Obviously,

Pauline A. Stipes Official Federal Reporter

1 the committee was not~formed, but my understanding of where 2 we were in October was these proceedings were in a sense to

3 supplement or supplant the committee process.

4

So, pursuant to Rule 15(b), the issue is alive and

5 well. It is the dominant issue in the case. It has been

6 litigated. We are at a phase where liability is behind us,

7 and we enter the next phase of the case, which is what

8 relief, sitting as a chancellor, should Your Honor order in

9 terms of the psychological and psychiatric service

10 programs.

11

In terms of the Costello case, if my memory serves me

12 correct, and, obviously, it has been four years, and two

13 weeks of a trial, and literally hundreds of documents, this

14 issue had been raced once in a matter of pleadings, that is

15 that Costello barred our presentation of this issue. Just

16 seems to me we have traveled past that liability finding.

17 The law of the case based on Your Honor's June 1987

18 decision is that at least at that time some form of

19 injunctive relief is required. We are here now to freshen

20 the record in determining what the injunctive relief is,

21 and if Your Honor's wrong in fashioning that type of

22 liability finding because it was pre-empted by Costello,

23 that ought to be an issue for the 11th Circuit to address

24 on the merits of the case.

25

THE COURT: How about whether or not that was

Pauline A. Stipes Official Federal Reporter

21 1 raised in the third amended complaint that Mr. Davis' 2 asserts, based on which we should rule with respect to

3 issues raised in this case?

MR. LIPMAN: I don't have the third amended

5 complaint in front of me, but I do recall we asked for

6 general equitable relief in terms of injunctive relief

7 which Your Honor sitting as a chancellor would find

8 appropriate to address the factual findings that it has

9 made.

10

And second, the very nature of this case has always

11 been that plaintiffs, plaintiffs' monetary damages,

12 plaintiffs' injunctive relief has always been structured

13 upon the. jnotion that a lawless prisjan existed at least 14 through the fall, of 1985^ and the rssnH- nf that lawless

15 .prison, given the context-af -the &th.

16 Mex-e -fe-ka-fc-J.nmajbes were being physically raped and abusftd-r->

17 If one were to review the reported decision in this case,

18 virtually every page of the seventy pages addressed those

19 issues. The complaint, I believe, was broad enough to

20 properly raise those issues. More importantly, the

21 evidence presented over those two weeks specifically

22 addressed those issues. If there was any technical

23 pleading deficiencyf that would have been cured consistent 24 with Rule 15(b). Everyone has been on notice, each party

25 litigated this issue. We have had experts on each side,

Pauline A. Stipes Official Federal Reporter

£8

~T and witnesses. All has been said, and done, and ruled

2 upon.

3

THE COURT: All right, sir.

4

MR. LIPMAN: Thank you.

5

MR. DAVIS: Your Honor, may we respond to that

6 issue?

7

THE COURT: All right. I don't want to prolong

8 this thing too much. If you have something new to offer in

9 connection with that. You mean the last issue?

10

MR. DAVIS: Yes, primarily.

11

First of all, I would like to point out, ^aw of the

12 case does not apply. Law of the case would apply only if

13 the the matter had been taken up on appeal. The matter is

14 interlocutory in the court's hands, and the court may rule

15 upon any issue, rerule on any issue which it previously

16 ruled upon if it felt its earlier ruling was in error.

17

More importantly, counsel suggests that the

18 psychological issues which he intends to raise in the case

19 were raised previously. That is not the case. The trial,

20 and the first proceeding here, considered only the damage

21 claims of individual plaintiffs who are not at GCI, who are

22 not seeking relief for injuries they suffered allegedly at

23 GCI. They are not seeking psychological services at GCI

24 for what they claim was done to them at GCI, because they

25 are not at GCI. They are elsewhere. It was the damage

Pauline A. Stipes Official Federal Reporter

~H claims that were the litigated matter of the first 2 proceeding. Only in respect to two items of testimony was

3 there anything addressing the injunctive aspects of the

4 case. One was the testimony of Dr. Swanson which was that

5 he had noted that there had been in his view changes at GCI

6 in the intervening period/ but he was not able to reflect

7 upon the then current conditions at GCI which was the

8 subject matter for the injunctive relief. The other was

9 the testimony of the inmate Brown who claimed he had been

10 assaulted at GCI. He was then subsequently sent front GCI,

11 and I think the record in the case showed that he had

12 received psychological counseling. The issue of whether

13 there should have been counseling provided to him, or

14 anyone else had never been raised at the trial up to that

15 point. It was never considered. There was never any

16 qvidence upon which the plaintiff could have amended his

17 pleadings to conform.

18

As far as this Court's prior statement in the order

19 accepting the Magistrate's report and recommendations where

20 the court suggested that it was going to establish two

21 committees, Your Honor will recall in the prior hearing in

22 this cause a couple months ago, we discussed that at

23 length, and because of the indication that had been given

24 to us by the panel of the 11th Circuit which we followed up

25 in researching, it was abundantly clear that was an order

Pauline A. Stipes Official Federal Reporter

~~1 that attempted to invest a committee with judicial powers

2 which was, of course, an Article III violation which could

3 not be done.

4

The order to that extent, we suggest, was not a

5 correct order, and the court correctly withdrew from that

6 order several months ago when it determined that it would

7 consider evidence as to current conditions at GCI. Those

8 current conditions would be the current conditions which

9 would apply to the issues raised in the pleadings presented

10 to the court, and those pleadings are the third amended

11 complaint.

12

W e , therefore, suggest that there is no basis upon

13 xhich the plaintiff can amend to conform with the pleadings

14 with the evidence, and there is the further problem of

15 conflict with the jurisdiction assumed in 1972 by the

16 United States District Court for the Middle District of

17 Florida which has committees in operation which committee

18 has, in fact, investigated GCI, and issued a report on GCI.

19

That is not a matter which we feel would be

20 appropriate for this court to take into consideration.

21

THE COURT: With respect to defendants' motion

22 to consider additional evidence, I will deny that motion.

23 If this Courtfs order was incorrect earlier in that respect

24 in that we denied motions for continuance, and I think

25 there was perhaps more than one of these, why, it seems to

Pauline A. Stipes Official Federal Reporter

31 1 me it would be — that I may not have jurisdiction at this

2 time since an appeal has been taken. Mr. Davis asserts

3 that we still do, and perhaps he is right, but it seems to

4 me it is better to go ahead and stick with that earlier

5 ruling, and let the appellate court review that point as

6 well as this order which I am now making denying the motion

7 to consider additional evidence. That is the posture we

8 will leave that motion now.

9

As to the jurisdiction of providing psychological

10 help to the victims of sexual assault, the sixth area

11 defined by Mr. Lipman here which is the ones on which

12 evidence will be offered in the prayer for injunctive

13 relief I think it may be true there are similar issues that

14 are still under consideration in Costello, but I will hear

15 evidence on that issue, and I will hold that the third

16 amended complaint may be conformed to the evidence, and

17 while similar issues may be before the court in Costello,

18 the issues are not pre-empted from us by that case. That's

19 the disposition of the two issues that have been raised

20 here.

21

MR. DAVIS: Your Honor, we addressed our motion

22 for production of documents. The basis for that, it was

23 essential for us to adequately cross-examine Dr. Swanson,

24 and Caddy. These are documents that they base their

25 opinion on. We would request that we be provided with the

Pauline A. Stipes Official Federal Reporter

1 documents in advance of cross^xamining Dr~ Swanson.

2

THE COURT: You said you would have them

3 shortly.

4

MR. LIPMAN: They should be here now, as soon

5 as Mr. Tucker enters the courtroom, if I might, between

6 lunch hour, and another time, if defendants — if we

7 completed direct examination, and they haven't had

8 sufficient time to digest them, which I think they will be

9 able to, perhaps we could ask Dr. Swanson to remain after

10 cross-examination, and come back later in the day.

11

THE COURT: I think he can handle it. I do

12 think you ought to have time to chew them over, but I think

13 you can work that out.

14

MR. LIPMAN: We call Dr. Swanson.

15

RICHARD M. SWANSON, PLAINTIFF WITNESS SWORN.

16

THE COURT: Be seated, state your name.

17

THE WITNESS: Richard M. Swanson.

18

THE COURT: You may proceed.

19

MR. LIPMAN: Before I begin, I assume from

20 counsel's earlier statement with regard to Mr. Saunders,

21 that the Rule is invoked, and prospective witnesses will

22 remain outside the courtroom?

23

THE COURT: Well, the Rule was only mentioned

24 insofar as one witness is concerned. If you want to invoke

25 the Rule generally.

Pauline A. Stipes Official Federal Reporter

—i

MR. LIPMAN: Please.

2

THE COURT: All right. Rule 615 is invoked,

3 and counsel for both parties are instructed to school their

4 witnesses in the requirements of that Rule.

5

MR. LIPMAN: Thank you, Your Honor.

6

DIRECT EXAMINATION

7 BY MR. LIPMAN:

8 Q

Would you please state your name?

9 A

Richard M. Swanson.

10 Q

You have a doctorate, Dr. Swanson?

11 A

Yes, I have a Ph.D. in psychiatry, and Juris Doctor

12 in law.

13 Q

And you previously participated in proceedings in

14 this case, did you not?

15 A

Yes, that is correct.

16 Q

Would you tell Judge Paine in a brief, overview

17 manner what your role has been in the litigation at least

18 prior to the fall of this year, 1989?

19 A

July of '85, or thereabouts, I was first contacted by

20 Mr. Lipman and given a general, rough sketch of the issues

21 in LaMarca, and asked if I would be willing to participate

22 in this case as an expert witness. I obviously accepted,

23 and shortly after that, around September, began reviewing

24 documents that were internal to the operation of Glades

25 Correctional Institutional, visited the institution several

Pauline A. Stipes Official Federal Reporter

T times that Fall, put all of the information that I have
2 from documents, plus information that I obtained by an

3 inspection of the physical plant of that facility together

4 with interviews with the plaintiffs in this case, LaMarca,

5 et al, formed a conclusion, indicating in essence that

6 glades Correctional Institution was operated in a fashion

7 that rendered it to be an unconstitutional institution. I

8 testified to that in this instant case.

9Q

Dr. Swanson, do you have before you your CV which

10 reviews your professional background?

11 A

I don't have a copy, but I may be able to recall.

12

MR. LIPMAN: Your Honor, I premarked

13 Plaintiffs' 2, and I have the original for Your Honor to

14 review. 15

THE COURT: Any objection to the receipt of

16 this document, gentlemen?

17

MR. DAVIS: No, your Honor.

18

THE COURT: Plaintiffs' 2 received in evidence

19 without objection.

20

(Plaintiffs' Ex. 2 received into evidence.)

21 BY MR. LIPMAN:

22 Q

Could you just again, before I do this, you were

23 tendered, and qualified as an expert witness in this

24 litigation, in the initial proceedings, December, 1985, is

25 that correct?

Pauline A. Stipes Official Federal Reporter

1 A

That is "correct.

2 Q

Dr. Swanson, without going through detail by detail

3 of the CV, in a overview fashion, could you walk Judge

4 Paine through your professional background as it relates to

5 issues raised in this case?

6

THE COURT: I really don't think that is

7 necessary, to spend our time in that way, gentlemen. I

8 have read this in the past. I will look it over again. I

9 don't remember it in detail now.

10

MR. LIPMAN: All right. I will move on.

11 BY MR. LIPMAN:

12 Q

Dr. Swanson, let me bring you up to the future, in

13 the Fall of '89, did I contact you with regard to this

14 pase?

15 A

Yes, both Mr. Tucker and yourself, I believe, early

16 November '89.

17 Q

And what was the understanding of the assignment we

18 had for you for these proceedings?

19 A

I was asked if I would be willing to serve as expert

20 in this review of the LaMarca case. I indicated that I

21 would. In your direction to me, you made it extremely

22 clear you wanted an objective overview of the situation in
)
23 Glades Correctional as it exists today with special

24 attention to those items that were found in the decision in
)
2 5 LaMarca. You emphasized for me, if there was improvement,

Pauline A. Stipes Official Federal Reporter

•you were very interested in that improvement being

2 recognized. If there were continuing problems, those

3 problems be addressed, and, if possible, recommendations

4 for ameliorations made.

5Q

Would you tell His Honor what you did in terms of

6 performing your assignment over the last months?

7A

I indicated that I would need to review internal

8 documents, outline some documents that I thought would be

9 illustrative of operations there.

10

I went to Glades Correctional November 20th, I

11 believe, '89 to again do a physical inspection of the

12 facility as it existed at that time.

13

During that visit, I had a opportunity to interview

14 inmates that were arbitrarily, randomly selected from the

15 population. I also had an opportunity to interview inmates

16 from the protective confinement area, and I returned to the

17 institution to make a videotape which I understand will be

18 shown this morning, and I took an opportunity to follow up

19 on people we could not get from the sample, meaning inmates

20 from the population. We conducted those interviews — I am

21 sorry, what we did, we contacted the people that we did not

22 have an opportunity to interview to verify they would be

23 volunteerinq interviews, subsequently returned for the

24 interview. I had an opportunity to sit in the depositions

25 of some of the staff, Lambdin, chief correctional officer,

Pauline A. Stipes Official Federal Reporter

57 1 II a n ^ r'aptain Hicks, and revTewed~^ome additional documents

2 from the archives of Glades Correctional.

3 Q

Have you now reached any conclusion based upon your

professional experience and your involvement over the years

in this particular case as to what areas of remedy or

relief are appropriate which flow from current conditions

that exist at GCI?

8 A

Yes, I have reached a conclusion, a series of

9 conclusions, some of which recognize that, in fact,

10 progress has been made. I identified areas I believe

11 continue to be problems and I have attempted to develop

12 recommendations which I believe would help ameliorate the

13 existing problem I see.

14 Q

In terms of an order, let me suggest that you first |

15 review with His Honor those areas that you perceive as

16 continuing problems for which some type of remedy would be

17 appropriate; and as we do that, suggest to His Honor what

18 type of remedy, or the scope of remedy ought to occur?

19 A

I will be happy to.

20

Let me just organize it in this way.

21

I will address[seven areas;in which I believe there

22 are continuing difficulties. These seven areas are really

23 derived directly from conclusions in the LaMarca decision.

24

The first has to do with free flow of contraband and

25 extortion.

Pauline A. Stipes Official Federal Reporter

38

1

As you recall, under the LaMarca decision, there was

2 a finding that contraband including drugs, alcohol, and

3 weapons were free flowing, and extortion activities flowed

4 from this illegal traffic.

5

It was also found within the section that little or

6 no effort was taken to control the illicit activities among

7 the staff, people carried knives, or smoked dope without

8 hiding it from the officers. The staff was illegally

9 involved in the illicite activities.

10

I then looked at that. My findings are that drug,

11 alcohol, and weapons as contraband are still abundant at

12 Glades Correctional Institutional. While the presence of

13 contraband I find to be still high, I do recognize there

14 seems to be a reduction of flow from the times that I

15 reviewed from Turner forward up until December of '85.

16

Weapons and drugs, and alcohol, still are abundant

17 and this may be in part due to the staff are not as active

18 as they might be in reducing these contraband activities.

19

Specifically, I think there are other possible

2 0 efforts the staff might expend to control weapons and

21 alcohol.

22

Now, I should say I am basing these decision on a

23 variety of sources.

24 Q

And could you explain the source of the underlying

25 basis for this specific conclusion?

Pauline A. Stipes Official Federal Reporter

1 ^A

Yes. I might say in overall strategy on my part, I

2 find more support, and I could be more definitive in my

3 conclusions when I have strongly contrasted sources of

4 information. Let's say that sources of information might

5 include inmates is a population, might include staff, might

6 Include documents that are available to me. The more

7 contrasting methods of arriving at the same decision, that

8 support the same decision, the more strength in my

9 conclusions.

10

These particular findings concerning contraband,

11 alcohol, drugs, weapons, were based on incident reports

12 from the institution. I had incident reports available to

13 me for the last four years. In those incident reports —

14

THE COURT: What last four years, back from

15 '89, the three years immediately preceding that year?

16

THE WITNESS: That is correct.

17

THE COURT: Okay.

18

THE WITNESS: In looking at those reports, I_

19 will cite 1987, and 1988, since they are more current

20 years.

21

In 1987, out of 50 incident reports available to me,

22 there were nine reports of confiscation of drugs and/or

23 alcohol. Two notable incidents of those are December 16th

24 there was confiscation of two gallons out of the protective

25 confinement area.

Pauline A. Stipes Official Federal Reporter

Ho

1

Just to remind the courTj buck in inmate parlance is.

2 homemade vine_.

3

There is also, June 4, 1987, confiscation of F Dorm,

4 40 $10 bags of marijuana—I am not sure what a $10 bag

5 means, but it is a fairly substantial amount of marijuana.

6

There were in that year for confiscation of weapons,

7 1988. out of two incident reports, six concern confiscation

8 Q.f drugs, and alcohol, and four concern confiscation of

9 weapons.

10

In addition to the incident reports, in my interviews

11 wvth the inmates, both in population and protective

12 confinement, inmates repeatedly and consistently report an

13 abundance of drugs, alcohol, and weapons to them within the

14 compound of Glades Correctional.

15

It is my impression from reading the incident

16 reports, talking with inmates, listening to the depositions

17 of senior staff that comprehensive shakedowns throughout

18 the institution are not frequently or routinely conducted.

19

This problem of contraband is a difficult one. It is

20 pervasive in correctional institutions, however, I believe

21 there are remedial actions that could reduce this. One is

22 a comprehensive shakedown of the entirefacility. This

23 would mean going through, and shaking down dorm by dorm the

24 entire facility, and the inmates. (Metal detectors)in the

25 institution should be regularly maintained, and in good

Pauline A. Stipes Official Federal Reporter

repair'. There is several reports within the internal

documents including a special review, January, 1986, which

indicate metal detectors sometimes go for long periods in

disrepair. inmates regularly report metal detector does not

wf o r k .

6 BY MR. LIPMAN:

7Q

Let me ask this: In terms of inmate reporting, aside

8 from the documentation, did inmates report to you in a more

9 current period of time that the metal detectors were not

10 functioninq?.

11 A

Yes. One gets the feeling in talking with the

12 inmates, and it is a fairly consistent report that certain

13 kinds of contraband are accepted as unavoidable. One of

14 these is the homemade wine. The other is homemade weapons,

15 shants, within the institution. I believe that^staf fj)

16 / a t H t u d e ^ s unavoidable does help to perpetuate the rampant

17 or availability of these contraband items.

18

I would further recommend eliminating currency from

19 the compound. Under the policy, currency is a legitimate

20 negotiable item. I am talking about dollars. I believe

21 there is less ability of an inmate population to trade in

22 drugs if they do not have dollars. I would recommend

23 taking of the currency, and keeping inmate accounts in

24 which they can draw in a prescribed manner according to the

25 policy of that institution in the form of script. That

Pauline A. Stipes Official Federal Reporter

1 script can be used to buy canteen i t e m s , b u t i t cannot be 2 used to buy elicit drugs.

3

That concludes my assessment in terms of contraband

4 within Glades institution.

5 Q

Which is the first of the seven areas you are

6 prepared to discuss?

7 A

Yes.

8 Q

Could you move sequentially to the second area that

9 you determined merits some form of remedy?

10 A

The second area, which, again, is directly derived

11 from the LaMarca court decision, concerns staff being out

12 of control. Staff morale was found by the court to be low.

13 There were insufficient officers to do the job right.

14 Insufficient instructions and guidelines for officers

15 becoming supervisors, high staff turnover, officers worked

16 excessive hours, and double shifts, staff was

17 inexperienced, overworked, under educated, illinformed, and

18 unable to protect inmates.

19

Going from that situation as defined in the court

20 decision to the current situation, it is my belief based on

21 superintendent reports, inmate reports, incident reports,,

22 in the 1986 special review report, staff are, in fact, now

23 x.n better control. There has been an improvement in

24 morale. There is an increased number of officers at the

25 institution.

Pauline A. Stipes Official Federal Reporter

T~

I cannot tell whether or not the officers becoming

2 supervisors are given sufficient guidelines. I just do not

3 have enough data to address that point.

4

There is a reduction in staff turnover, although the

5 turnover as I calculate it was 24.6 percent in '86. 23

6 percent in '87. 30 percent in '88, with an average turnover

7 rate of 25.8 percent.

8

I should indicate that the way I calculate staff

9 turnover is simply to add up percentage of turnover by

10 month as reported in the superintendent's report. There is

11 a more sophisticated way. This is the way I analyzed staff

12 turnover in the original case. It is reduced from time

13 earlier.

14

Also, in the 1986 special review report, there is an

15 indication that there is a reduction of staff turnover from

16 1980 through January of '86. I find that reduction to be

17 consistent in the time forward.

18

I find there is a reduction in excessive hours, and

19 double shifts among correctional officers. In taking the

20 superintendent's report, I will indicate the average

21 monthly overtime paid at Glades Correctional. 995 overtime

22 hours in '86, that is monthly average. 1004 in '87C that

23 is a monthly average. 2_cJ7JJ7__in_'88. I am not quite sure

24 why you have that jump in the very last year.

25

Even though this may be excessive, one must remember

Pauline A. Stipes Official Federal Reporter

as they increase staff, Tfier~average of overtime hours per

2 staff is under a larger denominator. This is, in fact, in

3 my judgment a better situation than it was in the earlier

4 era that we examined and in 1984.

5Q

Are there any problems that continue to exist with

6 regard to this issuef and what are they?

7A

If you are asking correctional officers to work

8 double shifts, work a lot of overtime, their efficiency i.n

9 the second shift or overtime hours is reduced.

10

Now, clearly there are times which a correctional

11 administrator cannot anticipate. Flu, high number of

12 sicknesses, some special problem in the institution, but in

13 general it is better to have enough staff complement so you

14 don't have to work your staff a great number of overtime

15 hours.

16 Q

How would you remedy this problem?

17 A

I think in the way that has been done, which is one,

18 add more staff, have better trained staff. In those areas,

19 I believe that there has been that attempt, but we still

20 have these high number of hours. It is my opinion in

21 looking at the current situation that compared to the

22 earlier time, the staff now are better trained, better

23 informed, and better able to protect the inmates than they

24 were.

25

This is in large part validated by the fact there are

Pauline A. Stipes Official Federal Reporter

1 significantly fewer assaults, at least as reported in the

2 superintendent's report.

3

Qns concern I have, and I must caution the court is

4 ,based on only one source of information, that staff are

5 rjsported to be perhaps too familiar with the inmates. They

6 are known, they have been reported to be horsing around,

7 joking with the inmates to the jeopardy of discipline. To

8 the degree this is occurring, and it was a consistent

9 report from the inmate interviews, you do run the

10 difficulty of maintaining discipline when you are too

11 friendly, or too informal with your inmate wards.

12 Q

How would you propose to remedy that?

13 A

This is a little more complex, I believe. I think

14 one of the difficulties, and we will address this later,

15 also, is that staff, because of the very limited

16 qonfinement space they have, are unable to lock inmates up

17 for disciplinary problems. When you have the inability to

18 put someone in administrative confinement either for

19 disrespectful activities, insubordination, and abuse, one

20 way of coping with that is joking them out of a situation.

21 Qne possible way to ameliorte this is to increase what I

22 talk about later is.a very limited confinement space area.

23

The other, I think you can handle a great deal with

24 s_taff training. While I have indicated, I believe that

25 staff are now more consistently receiving that training,

Pauline A. Stipes Official Federal Reporter

and less consistently working without it, I believe a

2 training program in professionalism with professional

3 officers, the balance of befriending or being able to

4 establish a rapport with an inmate, and getting into

5 unprofessional horseplay with an inmate would be

6 inappropriate. I think addressing this issue with proper -—

7 professional role with inmates is one; and, two, and

8 perhaps more dramatic, and necessary is significant

9 increase of the confinement area so you can, in fact, lock

10 people up when they have created a disciplinary problem.

11

1^ admit, with limited confinement space, the

12 correctional officers, and administration of GCI has to be

13 aware that some more minor lack of breaks and discipline

14 just have to be tolerated because you don't have a place to

15 lock people up.

16 Q

Does that complete your observations as to the second

17 area in terms of staff?

18 A

Yes, it does.

19 Q

Could you move to the third area?

20

THE COURT: Let's take a few minutes recess at

21 this time before we get into that.

22

We will be in recess for 10 minutes. You are excused

23 at this time.

24

(Thereupon, a short recess was taken.)

25 BY MR. LIPMAN:

Pauline A. Stipes Official Federal Reporter

Q

Dr. Swanson, you were just prior to the break ready

2 to discuss the third area of the order of relief that might

3 be appropriate based on your findings?

4A

Yes, consistent with the first two this is derived

5 from the findings of the LaMarca case decision; and related

6 to the second one, it involved staff. Here we talk about

7

failure to supervise staff.

8

THE COURT: Okay.

9

THE WITNESS: In the initial case, it was found

10 that officers were not stationed properly. The view from

11 the wicket, which is the guard post in the dormitory

12 setting, the view from the wicket was obscured, sheets,

13 clothes, and personal lockers hanging from the bunks making

14 it impossible to see beyond the bunks. The second level of

15 bunks in the middle row of beds obstructed the view from

16 the wicket. The view in the shower area was even more

17 obscure. Patrol of the dorms did not take place. No

18 action was taken for failure to patrol the dormitories.

19

Comparing what was found in r85 to the present

20 situation, I do believe there is jimproved supervisionlof

21 staff. Officers are better stationed. There is as a

22 standard a wicket officer, and patrol officer, and sergeant

23 ts> check on the officers to insure patrol. The yiew from

24 the wicket has, in fact, been significantly improved.

25 Sheets, clothes, personal lockers no longer hang from the

Pauline A. Stipes Official Federal Reporter

bunks. The second level of bunks no longer~exist in the

2 middle row of bunks, therefore, allowing for a clearer view

3 from the wicket down for a clearer view from either side of

the dormitories.

5

However, I do find the view into the shower area

6 could be improved by changing the glass or keeping the

7 .glass in the shower area so it can be more visually

8 surveilled. The glass tends to be aged either with grime

9 or simply age, and has the opaque appearance at this time.

10

The patrol of dorms is, in fact, policy at this time.

11 There have arisen questions from the inmates, however,

12 whether this patrol consistently occurs. The sources of

13 this information, these conclusions on my part are

14 observation, physical inspection of the facility. I also

15 took information from the superintendent's deposition,

16 superintendent's report, and interrogatories, inmates'

17 interviews were relied upon. Here I have found significant

18 improvement in terms of single bunking, taking away of

19 sheets and clothes, the policy of patroling, the stationing

20 of officers.

21

However, with the questions as to whether this patrol

22 consistently occursf I have one possible recommendation to

23 a,dd what has already been done, and that is to institute

24 the placement of a time clock, much as watchman use at

25 either end of the dormitory so patrolling officers would

Pauline A. Stipes Official Federal Reporter

19

1 have a record how often~they~went down to the dormitories

2 on every shift. In general, except for that one

3 recommendation, I do see substantial improvement in this

4 area of supervising staff.

5 Q

Move on to the fourth area?

6 A

Fourth area concerned, again, directly derived from

7 the court decision, this involves inmate movement controls.

8

During the Turner administration, inmates had free

9 ingress and egress throughout the compound. Not until '84,

10 was the pass system utilized, pass system was inmate should

11 not be roaming the compound without a place to go and pass

12 indicating where he belongs.

13

Second, due to physical structure of the dormatory,

14 clothing on bunk, and double bunking, it was impossible for

15 the officer in the wicket to see the shower area. This

16 overlaps the previous point, and, again, no policy issued

17 that officer patrol the dormitory.

18

Looking at the current situation involving inmate

19 movement controls, I found that under superintendent

20 Lambdin inmate movement is controlled. Policy restricts

21 inmates to their own dormitory except by pass, and main

22 compound inmate restricted to the main compound except by 23 eass.. T n e one difficulty I think remains is that the north

24 compound inmates are free to enter the main compound. It

25 is necessary that they do so, because support services,

Pauline A. Stipes Official Federal Reporter

>0

cafeteria, etc., ^areonTyavailable on the main compound.

2Q

I use the term, when I was offering an explanation of

3 the presentation of the cannery, the cannery be the same

4 area as you refer to as the north compound?

5A

Yes, and thank you, I should indicate that. Since

6 the last time we visited Glades Correctional, tjiere are now

7 two compounds. The north compound contains what used to be

8 a cannery, and now is renovated into large dormitory areas,

9 plus addition of a new dorm specifically constructed as a

10 dorm.

11

In the previous case, previous time, there was only

12 one dorm in what is now called the north compound, and that

13 was an honor dorm.

14

At this time we now have two separate compounds.

15 Generally speaking, inmates with lesser custody and shorter

16 times are housed in the north compound. The main compound

17 continues to house the same dormitory, same number of

18 inmates. These inmates tend to be longer term, higher

19 security risk, higher custody ratings. By having a mixture

20 of the two compounds, the short timers have to come into

21 the main compound. The short timers are more likely to be

22 victimized by long termers. Short termers have more to

23 gain by not getting into trouble. Long timers have less to

24 jam.

25

Middle bunks remain single, but glass in shower area

Pauline A. Stipes Official Federal Reporter

1 is so dirty or Id that~vlsual surveillance is difficult or 2 impossible.

3

Policy is in effect for officers to patrol on regular

4 basis. Inmates report this policyis not consistently

5 followed.

6

These findings are based on inmate interviews,

7 interrogatories, physical inspection, and staff

8 depositions.

9

Recommendations, if at all possible separate the

10 north compound from the main compound. That would require

11 the addition of support services, food service, especially,

12 into the north compound area. That would reduce lower

13 custody people having to be mixed with, intermingled with

14 high custody inmates.

15

I would also recommend replacing the glass into the

16 shower area, or maintaining them more clean on a routine

17 basis; the watchman's clock for check in of the officers so

18 w.e have a routine way of monitoring patrolling of the

19 dormitories.

20 Q

The fifth area?

21 A

The fifth area, again, follows directly from findings

22 in the court decision, involves the transfers of wolves.

23 Wolves are predatory inmates, perpetrators, victimizing

24 more vulnerable inmates.

25

It was found that aggressive wolves were tolerated

Pauline A. Stipes Official Federal Reporter

52

1 rather than transferred under Turner. Jones and Music

2 swapped problem inmates out of GCI.

3

As well as I could tell, this policy of transfers has

4 continued under superintendent Lambdin, negative transfers

5 still occur.

6

I had difficulty documenting this because I couldn't

7 determine routine transfers from negative transfers in the

8 documentation that I had. Under Superintendent Lambdin's

9 deposition, he felt the classification out of the

10 Department of Correction Reception Center was particularly

11 appropriate, and the need for negative transfers was

12 limited.

13

I am not sure, but it is clear to me that those

14 inmates who were victimized are the vulnerable inmates. I

15 would recommend a classification staff should conduct

16 intake interviews with each incoming inmate to verify

17 appropriateness of the classification assignment to Glades

18 Correctional Institutional. That would alleviate problems

19 of people not being identified as inappropriately

20 classified until they become victimized in the institution

21 itself.

22 Q

The sixth area?

23 A

Again, consistent with the previous areas, this

24 follows directly from the decision in the LaMarca case.

25

Here we are talking about protective confinement.

Pauline A. Stipes Official Federal Reporter

1 Utilizations of protective confinement corroborates white

2 plaintiffs' terror on the compound.

3

.What was cited in the conclusion of the court were

4 based on demographics of protective confinement used as an

5 illustration^ September 19, 1983, 21 inmates were housed

6 in protective confinement. Of those, 20 were white. The

7 court further found this was amplified, the problem of 8 protective confinement, by the punitive nature of 9 protective confinement in the years '80 to '84. Cells were 10 found to lack adequate ventilation, lighting was poor, two

11 to five inmates placed in cells containing two bunks. 12 Cells were infested with roaches, and vermin. Inmates were 13 taunted from outside the confinement area. Protective 14 inmates were housed with detainees, no exercise was 15 offered. Showering was allowed only three times per week, 16 and inmates in protective confinement lost canteen

17 privileges.

18

Further, some inmates would remain in protective

19 confinement for months. Shortage of cell space attest to 20 the inmate demand to check in, general wolfing, and cat

21 calls of aggressive black inmates around compound during

22 initial periods of incarceration when new inmates were

23 transferred to GCI would suggest that sexual pressures were

24 severe.

25

Lastly, overt signs of sexual activity, some

Pauline A. Stipes Official Federal Reporter

1 consensual, further provided an indication of assaultive

2 rape conduct.

3

Sheets were hung from bunks, inmates heard moaning

4 from bunks at night, and showing of pornographic movies.

5 Q

Now, in terms of problems that you determine exist in

6 protective confinement, could you share that with His

7 Honor?

8 A

Yes, the present utilizations pattern continues to be

9 similar suggesting white inmates having trouble in

10 compound. Taking the same illustrative statistic, I looked

11 at three points in time of protective confinement in the

12 year 1989.

13

October, 1989, there were 19 people housed in

14 protective confinement; 17 white, one other, one black.

15 December 12, 1989. 11 white, one other, two black, for a

16 total of 14 in protective confinement. November 20th, '89,

17 21—this is the day in which I interviewed protective

18 confinement—2J. whites, one black, for a total of 22 in

19 protective confinement.

20

Clearly, there is a much higher sampling of white

21 inmates in protective confinement than black. Looking at

22 the punitive nature of protective confinement, 1989, the

23 sell ventilation has been improved by the addition of fans

2 4 in the area. Lighting continues similarly as it was, as

25 poor. Two inmates now are — limit of two inmates placed

Pauline A. Stipes Official Federal Reporter

1 in cells containing two bunks^ protective confinement is

2 double bunks, one bunk for each inmate. I have no

3 information as to the present status of roaches, and

4 yermin.

5

Inmates in protective confinement are no longer

6 taunted by others outside the confinement area. The

7 confinement area was moved from the front to the back. rt

8 is physically not convenient or possible for inmates in

9 population to taunt those in protective confinement.

10

I find that protective custody inmates are no longer

11 housed with administrative detainees. Limited exercise is

— -

- -

_—, ,

12 now available, and offered to protective confinement

13 inmates. I might also observe that the exercise privileges

14 seems to be that far above what is minimally required by

15 Department of Corrections rules.

16

Showering, however, continues to be allowed only

17 three times per week.

18

There is a particular — At this point in time there

19 is another problem with showering only three times a week.

20 The boiler is in disrepair, and the inmates are unable to

21 take hot showers.

22

In terms of canteen privileges, I am unaware of

23 whether they lose canteen privileges or not. I have no 24 information on that.

25

gome inmates do remain in protective confinement for

Pauline A. Stipes Official Federal Reporter

56

1 over a m o n t h ~ Apparently^ inmates who for long periods of 2 time refuse to go or cannot adjust to population are 3 transferred.

4

Now, there continues to be a shortage of cell space

5 In protective confinement. When this occurs, the overflow

6 of protective confinement goes in the administrative

7 confinement area. Any particular c e l l — Inmates are not

8 confined with administrative confinement inmates, within

9 any one cell. There is no mixture.

10

Inmates, in the inmate interviews, report continued

11 wolfing, and cat calls continue during initial periods of 12 incarceration. Overt signs of sexual activity at this time

13 mostly consensual, from my observation, my understanding,

14 continues in part. Sheets, however, are no longer hung

15 from bunks as we have indicated. Inmates still report two 16 men in some bunks at night. Pornographic movies are no

17 longer shown. inmates describe something called a punk 18 beauty contest that occurred two years ago in which

19 effeminate inmates were competing in a so-called punk

20 beauty contest.

21

The sources of this information come from physical

22 observation, inmate interviews, superintendent deposition,

23 and classification officers' deposition.

24

The recommendations I have in this area:

25

One, I would speed up the transfer of inmates who

Pauline A. Stipes Official Federal Reporter

"cannot make it in population. Do not require incarceration

in protective confinement for extended lengths of time to

prove an inmate cannot make it in population.

Second, and I emphatically feel this is appropriate,

greatly expand the confinement area, not only protective

confinement, but disciplinary confinement, and

administrative confinement.

8

In talking with Superintendent Lambdin, and hearing

9 his deposition, this is going to materialize. Money has

10 been allocated, and this is part of the plan. It is an

11 important element to controlling the environment. That is,

12 increase the confinement area.

13

In terms of cat calling, wolfing area, create a

14 separate reception area for incoming inmates. Separate

15 them until complete orientation to GCI can be completed.

16 Once orientation can be completed, an assignment to dorm,

17 one inmate at a time, instead of a line of inmates enter

18 population, might reduce the inmates from wolf calls or

19 wolfing^.

20

In terms of increasing opportunities for protective

21 confinement inmates, I suggest the possibility of creating

22 a work crew of protective confinement inmates so they could

23 Leave the area and hold jobs in the institution. There are

24 difficulties in creating this, however; if it is done it

25 creates activity for the protective confinement. Does not

Pauline A. Stipes Official Federal Reporter

1 force them to lose gain time associated with working within

2 the institution.

3

Further, I strongly suggest providing counseling

4 services to protective confinement inmates.

5

Currently, programs and counseling services typically

6 leave protective confinement inmates. They are not

7 eligible to participate in programs. Associated with this,

8 if they are not participating in programs, they are not

9 eligible for gain time, reduction in sentence. Those

10 people in protective confinement should be seen as a

11 priority population to receive counseling. By definition

12 these people are saying they cannot handle themselves in

13 population. Many of these inmates will be those

14 emotionally disturbed, physically weak, uncertain of

15 themselves. Currently, by being in protective confinement,

16 they reduce probability and possibility for participating

17 in programs for which they have, perhaps, more priority, or

18 in more need.

19 Q

Dr. Swanson, are you able to itemize the types of

20 programs that exist for the general population that t^hose

21 inmates once incarcerated in protective confinement are not

22 eligible for?

23 A

I will give you some examples. A variety of alcohol

24 programs are conducted on the compound for the inmates.

25 Alcoholics Victorious, and Alcoholics Anonymous, and there

Pauline A. Stipes Official Federal Reporter

1 is Narcotics Anonymous.

2

A number of inmates report they are checking in

3 because they have problems with alcohol and drugs, and in

4 order not to be tempted to go back into the problems they

5 had on the street that brought them to the institution,

6 they are checking in. Those people, in fact, would

7 routinely benefit from participation in those programs.

8

Other programs have to do with individual and group

9 counseling of a variety of natures.

10

In short, besides the fact that they lose gain time

11 by not being allowed to work, lose gain time in not being

12 able to participate in the programs, they are probably more

13 in need of those programs, and more activities to diversify

14 the day.

15

The lighting, as I said, continues to be poor in PC.

16 Improving the lighting would be a recommendation.

17

Further, I would suggest disciplining inmates for

18 open display of homosexual behaviors.

19 Q

You complete your review of the sixth area, and you

20 are ready to proceed in the seventh area?

21 A

Yes, I was hoping to come to the seventh. This is my

22 last area.

23 Q

Could you address the seventh and last area?

24 A

Yes, this concerns rape within the correctional

25 compound.

Pauline A. Stipes Official Federal Reporter

50

The court found that there was no procedure for

T

2 investigating rapes. There was no standard interview

3 process, no standard polygraph procedure, no standard

4 rectal examination, no standard psychiatric examination, no

5 standard reporting to any law enforcement officer. No

6 rapes were ever reported by GCI authorities in any internal

7 documents available.

J

8

There was a lack of investigative procedure which led

9 to an atmosphere inmates could rape other vulnerable

10 inmates without detection or deterrence.

11

assessment of the current status in this area,

12 there does now exist a procedure for investigation of

13 rapes. There is an interview process that exists and seems

14 to be utilized for interviewing of alleged rape victims.

15 However, following directly from findings, there is no

16 standard polygraph procedure. There is — Let me say

17 alleged victims do now receive rectal examination at an

18 outside hospital. This seems to occur on a routine basis

19 with alleged rapes. However, there is no standard

20 psychiatric examination. Alleged rapes are reported to law

21 enforcement, reported to the local State's Attorney's

22 Office.

23

In the documents that I have seen since LaMarca,

24 there is only one sexual assault reported in the year

25 since. That was January, 1986.

Pauline A. Stipes Official Federal Reporter

fcl

1

My finding is that the establishment of the

2 investigative procedure may have improved the atmosphere

3 thereby reducing rapes at Glades Correctional.

4

The sources that I relied on to make these

5 conclusions are the incident reports available to me,

6 policy statements, superintendent reports, and inmate

7 interviews.

8

One, one issue in this area continues to concern me.

9 Xhere is no provision of mental health services, support

10 services, or rape crisis services for those alleging to be

11 victims of rape. The present interview procedure, the

12 present procedure for handling alleged rapes seems to be to

13 support the ability of law enforcement to prosecute the

14 allegations of rape. There does not seem to be a

15 tangential or accompanying side of being concerned about

16 people who have alleged themselves to be victim of rape.

17 This, I think, misses the point.

18

If we want people to be encouraged to report rapes,

19 they should perceive themselves to be received by an

20 understanding audience, not a State Attorney, or

21 institutional inspector who is going to question the

22 veracity whether the rape occurred or not.

23

I believe that is an element, and important element

24 in this to allow for prosecution of rape perpetrators,

25 however, rape victims tend to feel they are further

Pauline A. Stipes Official Federal Reporter

victimized by this kind of process. I think this process

2 needs to be supported, perhaps softened with a rape

3 .ombudsman. Someone who is concerned about the feeling of a

4 person who is reporting rape, perhaps a rape crisis team.

5

I might comment when a man reports he has been raped,

6 it is probably more difficult to face the embarrassment

7 than what one would find in the more traditional rape of

8 the community. Because of that difficulty, because of the

9 vulnerability, because of the unwillingness to admit not 10 being able to take care of oneself, I think in this 11 atmosphere of the institution, a mental health approach, a 12 rape counseling approach is crucial.

13 Q

Does that complete your review of the seven areas for

14 which you have determined conditions that exist presently

15 would require some remedial action?

16 A

Yes.

17 Q

You had referred to two different documents in your

18 presentation that I would like to call your attention to.

19

I have Plaintiffs' Ex. 4, and 9, which are business

20 records from GCI.

21

MR. LIPMAN: Is there any objection to their

22 being introduced? 4 is the special review of GCI, and Ex,

23 9 is the superintendent monthly reports that Dr. Swanson

24 had referred to dating from January 1986, and September 25 1986, through September 1985.

Pauline A. Stipes Official Federal Reporter

T~

THE COURT: ~Now^ the time period or range of

2 number 4 is what?

3

MR. LIPMAN: Number 4 is special revievn of

4 Glades Correctional Institutional[dated January 20,fdash

5 21, 1986, Ex. 4. January '86 which would have followed the

6 decision of the case at the magistrate level, through

7 September '89, through last fall.

8

THE COURT: Any objection to these documents

9 being received?

10

MR. DAVIS: Your Honor, without being able to

11 compare them with my set, I am not sure if all of these are

12 documents which are containing solely the superintendent's

13 monthly reports, there are documents in here which are not

14 superintendent's monthly reports.

15

THE COURT: Suppose you look at them through

16 the noon hour, and I will leave them in limbo before we do

17 that. You may not have any objection. If you do, you can

18 voice it at that time.

19

MR. LIPMAN: I was told that April, 1989

20 superintendent report was missing from what we received.

21 It is not providEd.

22

MR. DAVIS: April is missing from my set also.

23 I thought you would have it.

24

MR. LIPMAN: We obtained this through you.

25

MR. LIPMAN: Your Honor, may I proceed?

Pauline A. Stipes Official Federal Reporter

THE COURT: Yes.

BY MR. LIPMAN:

3Q

In reference to first Plaintiffs' exhibit, what is

4 identified as Plaintiffs' No. 4, that is January 20, and

5 21, 1986 report entitled "

6

incfri <-n*\nn«i " what is the gist of that

7 report, and how does that factor into your testimony?

8A

Apparently as a result of the LaMarca c a s e —

9

MR. DAVIS: I would have an objection to his

10 characterizing the report. The report will speak for

11 itself. It is not authored by him. If he wishes to

12 testify how that documented his opinion, that is another

13 matter, we object to i t —

14

MR. LIPMAN: My question is how does it factor

15 into his conclusions?

16

I thought Your Honor ought to have an understanding

17 what the report is.

18

THE COURT: I will overrule the objection.

19 Proceed.

20

THE WITNESS: It is my understanding this

21

at thg_ ragbag* r> f ft fte |Gqve rno r ' ? n f f ^ n R

22 to review the situation at Glades Correctional.

23 BY MR. LIPMAN:

24 Q 25 A

How are you aware of that? In the first paragraph reduction of concern by

Pauline A. Stipes Official Federal Reporter

65

1 Governor Graham, GCI, office of the Inspector General

2 directed to visit that facility and report as to current

3 status.

4 Q

In terms of temporal period, when does that fit into

5 the evolution of this case, January 20th?

6 A

This was almost immediately after the hearing on the

7 initial — a review of LaMarca. I might say the time

8 period that it covers is really back to 1980, '81. So this

9 is a review of conditions, historically up to the date of

10 the review, which date of the report, which is January

11 20th. I relied on this report to provide a corroboration

12 of improvements that I had seen, and that I had reported on

13 in the case, and, in fact, there are several points in here

14 which directly parallel observation that I had made about

15 improvements and physical plant, cleanliness, sanitation,

16 assaults, and so forth.

17

This report helped me to feel confident about the

18 direction that change was occurring at GCI, seemingly, as a

19 result of the involvement of this case.

20 Q

All right. The second series of documents, and I

21 think you specifically refer to the superintendent reports

22 which, I believe, are contained in plaintiffs Ex. 9, again,

23 how did these documents fit into the testimony that you

24 offered?

25 A

The superintendent provides a monthly report to the

Pauline A. Stipes Official Federal Reporter

1 Department of Corrections, a wide variety of the

2 institution. This occurred — includes matters of staff,

3 turnover, hiring staff, dismissals.

4

It includes inmate discipline, assaults upon inmate,

5 inmate staff assaults.

6

It is a monthly state of the institution report that

7 comes from the superintendent's office. That helped give

8 me a flavor and balance and what I was given from inmates

9 from other sources.

10 Q

We completed a portion of your testimony relating to

11 the problems. Are there improvements that have been made

12 since the fall proceedings, fall of '85, that you haven't

13 alluded to that you want to call to His Honor's attention?

14 A

Yes, I do think there has been progress, and I feel

15 the administration of GCI should be given credit where

16 credit is due.

17

One contrast, since my first entry on the Glades

18 compound, and that would occur in the recent past, showed

19 significant improvement in terms of physical plant. The

20 housing area is much cleaner. There appear to be less

21 clutter. Paint and maintenance of the facility is

22 obviously much better. There are now screens on windows so

23 that inmates could have the windows open without being

24 infested by insects.

25

This is also alluded to in the '86 report as progress

Pauline A. Stipes Official Federal Reporter

67

1 in these areas that ha¥~beenT continued or maintained.

2

The yard area is imporoved. Landscaping is much more

3 livable. Quality of life is better.

4

The .swampy area, where there is sewage drainage, and

5 fowl s_te_nch, those lyave been alleviated. There are only

6 hints of what was dramatic in the past.

7

Institution has improved recreational facilities,

8 handball courts, restrooms in the rec yard. All of that

9 indicates there is an interest in improving the quality of

10 live in GCI, and administration should be so commended.

11

I think security has been improved. More manpower,

12 especially in the dorms where we have standard post, 13 established post for surveillance. Single bunking faafi hppn

14 tngii nt-qipftd in the middle areas. Clearly, visual

15 surveillance to provide security for inmates is much

16 improved by maintaining of that single bunking.

17

I think fhe staff seem to be obviously better_

18 grained,. The lack of incident reports in terms of handguns

19 misfiring, other kinds of things, the absence is quite

20 clear. We are dealing with a better staff, and there is a

21 better pride of service in being affiliated with GCI.

22 Staff ought to be commended for that.

23

Staff turnover has been reduced. Staff should be

24 commended for that. (PC,)protective confinement, has been

25 much improved. While I object to having two protective

Pauline A. Stipes Official Federal Reporter

68

1 confinement inmates per cell, it is too likely — it is a~

2 significant improvement from four to five inmates per cell.

3 The fact that protective confinement wing is now in a

4 location where taunting from inmates no longer occurs, that

5 is clearly an improvement.

6

So, there are a number of areas which improvement has

7 occurred. I believe staff should be complimented on that.

8 I still feel there is further improvement possible.

9

MR. LIPMAN: Your Honor, at this time, I would

10 like to have a videotape of GCI, as Dr. Swanson toured GCI

11 in December, and was able through a technician to have a

12 tape prepared, and I think the observations that he had,

13 and will make on the tape, and physical scene might assist

14 the court in offering a pictural review of some of the —

15 contents reviewed.

16

It is about 45 minutes to 50 minutes. If I

17 understand toward the middle or end we might be able to

18 fast forward through portions that may become redundant.

19

THE COURT: Have counsel seen this tape?

20

MR. DAVIS: No, Your Honor, nor do we know

21 whether it is an uncut version. We were present when it

22 was being taped. We don't know if this is an uncut version

23 or not.

2 4

MR. LIPMAN: Let me represent to His Honor that

25 nothing has been edited, and as both counsel with Dr.

Pauline A. Stipes Official Federal Reporter

1)9

Swanson toured the facilities together, in a group, and

there was nothing done in the tape outside of that

experience. Although counsel hasn't seen the actual tape

has participated in its making.

MR. DAVIS: If we could have it shown without

waiving any objection that we might have.

THE COURT: All right. Let's do it that way.

Sounds like it would be helpful.

MR. DAVIS: It is almost noontime.

10

THE COURT: You said it would take about how

11 long?

12

MR. LIPMAN: 50 minutes. If we fast forwarded

13 some sections, we could reduce it.

14

THE COURT: Why don't we go ahead, unless there

15 is a special reason not to. We could recess it now, and

16 take it up as soon as we got back. I don't care. I would

17 just a soon go ahead and do it now, and take a lunch break

18 later, but I would be glad to consider any reason not to do

19 that.

20

Let's go ahead, then.

21

You have the machine ready? Is is there any audio

22 part of this thing. Unless there is a transcript—

23 (Video tape played.)

24 BY MR. LIPMAN:

25 Q

Dr. Swanson, you already told me there was a portion

Pauline A. Stipes Official Federal Reporter

1 you felt you could fast forward, to give directions that

2 are necessary to move us along, if you need to stop to

3 further comment on anything we see, feel free to do so?

4 A

There may be portions, also, the audio goes down

5 because of the distance between me, and the camera.

6 Q

Are you able to recall the date?

7 A

garly December, if my memory serves, like the 12th.

8

THE COURT: You are talking about this past

9 December?

10

THE WITNESS: Yes.

11

MR. LIPMAN: Last month.

12

THE WTINESS: This is a panorama, where I enter

13 the institution.

14 BY MR. LIPMAN:

15 Q

Dr. Swanson, are you able to tell if we have entered

16 the compound?

17 A

Entered the compound, and we are in front of

18 dormitory A, one of the larger dormitories. I think we

19 will start the narration right here.

20

"We are entering a dorm in the main compound. As you

s<—• i

21 can see immediately ahead is what is called thefwicket^

22 The guard post that serves the central part of the

23 dormitory which extends down either direction from the 24 wicket. We walk up and the guard will preside within the
25 wicket, which is a surveillance post, to observe the dorm

Pauline A. Stipes Official Federal Reporter

1 area on either side."

2

"As you can see at the end of the dorm area on each

3 side is the shower, and toilet area. The bunks in the

4 central aisles are single bunks, and being single bunks you

5 can provide visual surveillance down to the showers.

6 Second tier of bunks would obstruct that vision.

7

"The dorm areas are asymmetrical so the same is true

8 on the opposite side.

9

"Going outside of the wicket area, you can get a more

10 clear shot. We are here in the morning time in which there

11 is plenty of light, and visual access is easier than the

12 night. And as we exit the wicket, we can see one other

13 area that is difficult to observe from the wicket, and this

14 is the T.V. room, card room, or the recreational area

15 within dorm A.

16

"From the central point visual access is very

17 difficult. We will go ahead and walk into the area. As

18 you can see, this is simply a T.V. viewing area separated

19 so on one side is the T.V. area, and on this side is the

20 card room area, sitting area. If you come back into this 21 area, and look back towards the dorms, you can see how 22 limited the visual access is from the dorm area, or the

23 wicket into the card room.

24

"The dorm area to the shower, as you can see, visual

25 access is improved by not having the double bunks in the

Pauline A. Stipes Official Federal Reporter

V2
I
I~~ center.

2

"I am now in the shower area looking back at the

3 dorm. And as you will see, the distance is an obstacle to

4 good observation, and there are blind spots in this area.

5

"And this is the shower area that we talked about.

6 And if the cameraman can come, we can look back toward the

7 wicket from here. The wicket, we are going to go down the

8 opposite dorm area from the wicket in dorm A.

9

THE WITNESS: We are still in dorm A, this is

10 on the other side.

11

"As you can see, this is a direct asymmetry on the

12 other side, we have the two central aisle, double bunk,

13 which does allow surveillance from the way it used to be,

14 and the shower area is at the end of this dorm area.

15

"Again, on one side, we have the toilet area, and on

16 the other side we have the shower area. One thing to make

17 note of his the visual ability of seeing through this 18 glass. As the glass is here for awhile, it ages, and

19 becomes opaque.

20

"I am going to walk into the shower area so you can

21 see me through the glass. Except for the two bottom

22 outside panes which have been recently put in, visual

23 ability is limited, and this is from immediately outside

24 the shower.

25

"Again, this shower area is identical to the other

Pauline A. Stipes Official Federal Reporter

1 side, and the cameraman~can come in from the shower area,

2 and look back toward the wicket, and you can see the

3 difficulty of seeing through this glass. The lighting in

4 this area as on the other side is very dim, and gives

5 limited access of visual observation. This ends the dorm A

6 orientation.

7

"We are now entering dorm B which is arranged in

8 essentially the same fashion as dorm A. Immediately ahead

9 as you enter is the central guard post or the wicket. As

10 you see, from the wicket, you then observe either end of

11 the dorm which is bunks, and at the end the shower,

12 bathroom area.

13

"The difference between dorm A and dorm B is largely

14 that of size. This is not quite as large as dorm A area we

15 just visited.

16

"As we enter the wicket, you can see we again have

17 the central area single bunk, and the outside bunks double.

18

"We will walk down towards the bathroom as we did in

19 dorm A. As you can tell, this is not as long as the dorm

20 we just visited.

21

"Again we have the bath, toilet area on one side,

22 next to the shower area on the other.

23

"Again, you can note the glass which has become

24 Qpaque, and as I go behind the glass, visual access is

25 somewhat restricted. And if the cameraman will come back,

Pauline A. Stipes Official Federal Reporter

1 we can see that again we have blind spots with a partial

2 separation of the shower, and then the opaque nature of the

3 glass.

4

"Looking back towards the wicket, you can see the

5 restriction of visual surveillance. Unlike dorm A, there

6 is no physical separation from one side to the other so we

7 have one clear shot of the total dorm. One bathroom to the

8 other.

9

"I am standing in front of the wicket. From this

10 post in front, again, you have clear visual access if you

11 are at the wicket to either side of dorm B. pirectly

12 opposite the wicket is the T.V. room, which is the door

13 closed now, with the diamond shape window in it. You can

14 see from here, visualization into the T.V., card room is

15 again quite restricted. Without moving from the wicket

16 post, adequate surveillance is not possible.

17

"Now going to the door of the T.V. area, and you can

18 see a similar arrangement in dorm B as we saw in dorm A.

' 19 T.V. area on one side, and adjacent to that, is the game

20 area, card room area.

21

"Looking back into the dorm area, visual surveillance

22 from the dorm area, or wicket, as you can see is highly

23 restricted. Sight, sound surveillance is limited at best.

24

"We are now about to enter C dorm."

25

THE WITNESS: David, I will suggest we fast

Pauline A. Stipes Official Federal Reporter

1 forward C dorm, if that is reasonable. 2 BY MR. LIPMAN:

3 Q

Can you tell the technician, you want to fast forward

4 through C dorm?

5 A

I want to go through C. D is worth looking at. As

6 it were, the bunks were pushed in the middle.

7 Q

What is the reason you want to fast forward C?

8 A

Repetitiveness, A and D are almost identical. B and

9 C are like A and D except shorter, and no physical

10 separation between the two sides. Obviously, if you want

11 to see it all, that is fine. B is very much like C, and A

12 is like D.

13

THE COURT: Do you have any objection?

14

MR. DAVIS: The problem that we would have

15 would be that if there is — there is obviously dialogue on

16 this tape. We know what was visually picked up, but we

17 don't know what all the dialogue was. .As long as a copy

18 will be provided to us so we could view the dialogue to

19 make any objections, I would not have a problem with that.

20 We don't want something going into evidence with dialogue

21 gn it that we have not heard and we have an objection to.

22 And let it lurk there in the record of the case.

23

MR. LIPMAN: If it is easier to show the whole

24 thing.

25

MR. DAVIS: It is fine with me to fast forward,

Pauline A. Stipes Official Federal Reporter

1 as long as you have provided to us a copy that we can

2 review to see if we have any objections and enter them at a

3 subsequent time.

4

MR. LIPMAN: We were going to admit the tape as

5 an exhibit so the court and Court of Appeals will have a

6 copy of it. If I can do that, and release it pending its

7 introduction, furnish it to counsel, and they can view it

8 tonight, or make a copy, that is fine.

9

THE COURT: It will be available. Why don't we

10 leave it up to Mr. Davis to take a look at it if he wants

11 to.

12

MR. DAVIS: Would we have it available to take

13 it from here and look at it?

14

MR. LIPMAN: Dr. Swanson will help you in fast

15 forwarding it to the next section.

16

THE WITNESS: There will be a scene that says D

17 dorm, and then you can bring it back. I want to show a

18 little bit of D dorm to show specific things, and fast

19 forward it again.

20 BY MR. LIPMAN:

21 Q

While you are waiting, what would your solution be to

22 the problem of lack of ability to have surveillance of

23 inmates in the T.V. or card room?

24 A

When those areas are open, and I am told they are

25 o_p_ened like 4 to 11 o'clock during the week, and a later

Pauline A. Stipes Official Federal Reporter

1 h-our during the weekend, you almost need an additional 2 officer, one in the wicket, one patrolling, optimally a

3 third one. gther than that what I am suggesting is to 4 enforce a policy of constant patrol by the second officer.

5 You have a watch clock where he would go into one end of

6 the shower, go into the T.V. room, and all the way down.

7 Now, he is constantly monitoring.

8

Here here we are.

9

(Tape continued.)

10

"We see the repeat of the same design. We have

11 again the central guard post or wicket."

12 BY MR. LIPMAN:

13 Q

This is dorm D?

14

THE WITNESS: D. This is long, very much like A

15 dorm.

16

"This dorm is a little larger, and physically

17 separated from one side and the other, A wicket, and solid

18 wall which provides opportunities to separate both sides of

19 the dorm.

20

"Looking down from the wicket to the end, at present

21 you get some approximation of the effect of double bunking

22 in the central aisle. They are cleaning, therefore, the

23 bunks are moved toward the center. We have some double

24 bunking in the central. That does provide an obstacle to

25 visual surveillance. Looking down the opposite side, here

Pauline A. Stipes Official Federal Reporter

~T we do not have the bunks pulled into the central, and you 2 can see with a single bunking in the central aisle, we do

3 have improved ability.

4

"Again, bathroom, and shower area is at the end of

5 the dorm."

6

THE COURT: This is the opposite side of D

7 dorm?

8

THE WITNESS: Yes. The reason I wanted to show

9 this, since they were cleaning, it approximated the

10 experience of having a double bunk.

11

"We are into the D dorm side where the bunks have

12 been pulled into the middle for cleaning, and you just get

13 some representation of the visual obstacles. I don't

14 intend to communicate this is current practice, this is

15 just this way for cleaning purpose, but you can see the

16 problem of double bunking. We will again walk down to the

17 shower area in D dorm.

18

"As you can see, this is the longer dorm as was A.

19 Again we have the — the f.ront of the shower area in the D

20 dorm, and I will walk in as I did the other dorm to show we

21 have the toilet side and we have the shower side.

22

"Again, we have the problem of limited visual access.

23 ^ am now walking into the shower area looking out into the

24 dorm area. And we have half walls, and we have the limited

25 access through the windows. This gives you an

Pauline A. Stipes Official Federal Reporter

T approximation of how"~ir'~use? to be."

2

THE WITNESS: I think we can fast forward it to

3 the exit, now.

4 BY MR. LIPMAN:

5Q

Just tell us when you want us to go back.

6A

We will see the canteen area. I will talk about

7 that. When we exit here, I will talk about the canteen.

8Q

Incidentally, the dorms we have seen, are they in the

9 main compound?

10 A

A through D are main compound dorms.

11 Q

Which is the existing institution as it existed in

12 the fall.

13

THE WITNESS: Now you can stop it.

14 (Tape continued.)

15

"We are standing outside of D dorm. We have just

16 exited, and this is more or less towards the central part

17 of what is called the main compound or the original housing

18 area at Glades Correctional.

19

"I am now standing in front of the _canteen. This is

20 where optional items, such as candy, snacks, so forth, can

21 be bought by the inmates. This canteen serves both

22 compounds of Glades Correctional. I am told by the Colonel

23 the population of the inmates today is 1183, and this is

24 referred to as the little Winn-Dixie of Glades

25 Correctional. Inmates are free to buy those items that

Pauline A. Stipes Official Federal Reporter

~~I they want here.

2

".This is kind of a convenient meeting place for all

3 inmates who are in population between the two compounds."

4

THE WITNESS: You can speed this up until we

5 get to the confinement area. This is the other side of the

6 canteen.

7 (Tape continued.)

8

"We are still in the main compound area. We are now

9 going to enter the confinement area. This houses

10 protective custody, administration confinement, and

11 disciplinary confinement.

12

"This is single cell housing area for people who

13 create problems in the compound, or themselves are being

14 troubled in the compound. We have just entered from the

15 outside into the confinement area. This houses PC, AC, DC.

16

"We will enter into what is PC. This is protective

17 confinement. Inmates who feel they are threatened, or

18 endangered in the compound can request to be put into

19 protective confinement. And here they are placed in cells

20 as we can see.

21

"Typically at Glades you will see PC is two inmates

22 per cell. We are now going to walk down a narrow walkway

23 in the PC confinement area, with individual cells with

24 barred doors, and we can walk down."

25

THE WITNESS: I had to say we had to put in

Pauline A. Stipes Official Federal Reporter

1 lights so we could see. Lighting has been augmented.

2 (Tape continued.)

3

"As you can see, there are a limited number of cells

4 within this walkway. Each cell is double bunked, and has a

5 traditional bar door in front. And as you could see as you

6 look in, there is a single bunk bed which houses two

7 inmates. In that cell area, there is a single piece

8 toilet, wash basin with a light overhead. The cell we are

9 looking into now is PC-1."

10

MR. LIPMAN: Are all the cells in PC the same

11 size?

12

THE WITNESS: Yes.

13 (Tape continued.)

14

"Down PC-1, P-2, each cell is the identical mate of

15 the other cell. Two beds, or one bunk bed each with a

16 single wash basin, toilet area. This is PC-3, the same

17 situation, two beds, one bunk, and the toilet basin

18 accommodation. Again, one bunk bed, two beds, two

19 inmates, one toilet, and basin.

20

"As you can see in this area, it is quite limited

21 confinement. Inmates are typically kept in their cells,

22 allowed showers three times a week, and have some exercise

23 opportunities every week. The main source of their

24 confinement is in this cell 24 hours a day. They are fed

25 here. They have access to books here.

Pauline A. Stipes Official Federal Reporter

1

"This is PC-5. As you can see, the same

~

2 configuration as the PC cell. We are now looking into

3 PC-6. As you can see, it is the same configuration, two

4 beds, limited movement area. Limited light.

5

This is PC-7 which is the same configuration as the

6 previous PC cells, two inmates, two beds, one toilet basin,

7 limited walk area.

8

"We are now facing PC-8, which is the same

9 duplication of previous seven sells. This is the last cell

10 within the PC block, ghere are eight cells within this

11 block. The very last area is the shower area for which the

12 inmates are given access three times a week.

13

"The last cell is dedicated to a shower, which I will

14 enter as you can see. It is basic rudamentary shower

15 stall. Shower stall, and a limited dressing area in front.

16 We are at the end. From here we can exit PC into another

17 confinement area. I am exiting from the PC block area,

18 into the next confinement area, AC.

19

"If you have the analogy of a prison being a

20 community, AC is a detention area, pretrial detention area,

21 where inmates who have been accused of causing problems,

22 some infraction or even a crime would be brought to AC

23 until the case is disposed of. The first cell which is the

24 last cell is the shower area, which you can see will be the

25 identical counterpart of what we just come from in

Pauline A. Stipes Official Federal Reporter

1 protective confinement."

2 BY MR. LIPMAN:

3 Q

Doctor Swanson, AC is the same as administrative

4 confinement?

5 A

Yes, essentially identical.

6 (Tape continued.)

7

"Same shower stall, same dressing area. AC, we have

8 seven cells assigned to the AC area. The cells are the

9 same configuration as PC, single bunk, two beds, a single

10 stainless steel module of toilet, and basin, and we are

11 obviously getting comments from the residents.

12

"If you come down, we will show you the inside of an

13 AC cell. There are two inmates. And the same

14 configuration as PC.

15

"Leaving AC-7, we are at AC-6, and you see the same

16 configuration, PC, and AC the same thing, two beds, basin,

17 toilet. Two inmates per cell.

18

"We are at AC-5. Same configuration, two beds, one

19 bunk, and room for two inmates.

20

"We are at Ac-4, same configuration, two beds, one

21 toilet, basin, module, and walkway.

22

"Moving on to AC-3, we have the same configuration,

23 two inmates, two beds, one basin, toilet.

24

"AC-2 is the same configuration as the previous ones

25

"We are back to AC-1.

Pauline A. Stipes Official Federal Reporter

1

"«? am told when PCTITls, they will begin filling AC

2 with PC inmates. If you have an overflow from PC, you will

3 use AC cell for protective confinement inmates.

4

The configuration, AC, PC, are the same. The only

5 difference, the inmates in the block would be those accused

6 of a crime, whereas protective confinement are those who

7 feel threatened on the compound."

8 BY MR. LIPMAN:

9 Q

Dr. Swanson — could we stop a second? There were

10 eight cells in PC with two bunks, correct?

11 A

Yes.

12 Q

So when you have more than 16 inmates confined in

13 protective confinement. The rest are overflow into

14 administrative confinement?

15 A

The policy is to fill AC, so they evacuate the cells

16 as needed to handle the overflow from PC.

17 Q

Do you know when you did this on-site visit, or

18 during your recent trips to GCI in the fall of 1989 whether

19 any inmates who were in protective confinement were in

20 overflow cells in administrative confinement?

21 A

Yes, my first visit when we were interviewing PC,

22 AC-1 was housing PC inmates. There were 17 inmates that

23 day, and so the 17 was in AC-1.

24

Is there anything else you want to see in the

25 confinement area?

Pauline A. Stipes Official Federal Reporter

1 2 Q

You want to see DC? Yes.

3 A

This is next. This is disciplinary confinement. If

4 you make the analogy a prisoner in the community, this is

5 the sentenced inmate section. The PC cell block area

6 follows the basic design of AC and PC, with two exceptions,

7 yjpu have a solid door front the with limited visual access,

8 and single cell house. One inmate per cell. J am told

9 that because of overflow, there is a PC inmate in the first

10 DC cell, ordinarily DC is for disciplinary inmates. Again,

11 you have limited access, and you have a double bunk, but

12 apparently houses one inmate at a time.

13 (Tape continued.)

14

"We will open, this is DC two. This is disciplinary

15 confinement cell, one upper bunk. Here you have porcelain

16 basin, and toilet. But the design is similar to AC, and

17 PC. Single cell housing here. There are 15 cells designed

18 for this area. I am told, for reasons of fire code, only

19 10 cells are being used for safety reasons.

20

"Again, similar except that the doors are solid. In

21 this case, we have a bar. We have a lower bunk here with a

22 stainless steel basin, lower bunk with single, stainless

23 steel basin.

24

"We are now in an area where some of the cells are

25 not being used. You could look into them and see the size

Pauline A. Stipes Official Federal Reporter

T of the space. There wouT?"¥e a bunk here, a walk area here
2 (indicating). These cells are not being used at present."

3

THE WITNESS: I think we have a picture of

4 confinement. You can fast forward it on.

5 BY MR. LIPMAN:

6Q

All right. Just tell the technician when you want to

7 start again.

8 (Tape continued.)

9

"From here we are going to the north compound.

10 We are walking down the area — E dorm was a honor dorm, as

11 you can see the two compounds are physically separated by

12 high fences, and razor wire.

13

"As we enter the north compound, we are looking over

14 what is called the visiting park, and visitors have contact

15 visits with their inmate friends or relatives on an 16 on-contact basis, inmate has that privilege.

17

"As we approach the north compound, you see we have a

18 cellaport area in which inmates go through the cellaport,

19 and go through a metal detector. The purpose of this is to

20 restrict and control contraband flow from one compound to

21 another.

22

"I am now approaching the cellaport gate, where

23 inmates pass, and as you can see, there is a metal detector

24 here. Within the cellaport area, not only has the gate to

25 control access from one compound to the other, there is an

Pauline A. Stipes Official Federal Reporter

exJternal gate where work crews and delivery vans may enterT"

2 This is a security control area. We are now entering the

3 north compound from the cellaport area.

4

"We are going to the housing area that previously

5 housed the cannery. At the time of the original case, the

6 cannery had been converted to dorms F through H."

7

THE WITNESS: fforth compound and main compound

8 are separatable. Main compound people who tend to be

9 higher security are restricted in terms of their access to

10 north compound. North compound people who are lower in

11 security by necessity do go into main compound because that

12 is where they eat, and get other support services.

13

So it is clear, you have to have commerce from north

14 to main, you could restrict main to north.

15 BY MR. LIPMAN:

16 Q

You offered when you were going through your

17 observations as to areas of relief, and you had indicated

18 that the movement of inmates from the north compound and

19 main compound caused you a concern?

20 A

l.t creates a more vulnerable population to victimize

21 higher security risk inmates, one way of minimizing, or

22 ameliorating that is to have support services available i.n

23 the north compound so you don't have to mix them.

24

THE COURT: The canteen serves both compounds?

25

THE WITNESS: Canteen, the support services,

Pauline A. Stipes Official Federal Reporter

!8

j^a-f-e^fririra-7—gymnasium in which movies are shown. I guess

2 there are movies in terms of T.V. in the other side, there

3 are a number of things which are not available unless the

4 inmate goes to the main compound. Food services, cafeteria

5 are essentials.

6 (Tape continued.)

7

"As you are walking toward the cannery, you can see

8 we have recreation areas within the compound. There is a

9 basketball court, and something very common within a prison

10 is weight lifting activities.

11

"We are entering LH dorm, which is the first dorm

12 within the north compound that we are visiting on this

13 tour.

14

"As you enter H dorm, you can immediately see that

15 the same housing configuration has been followed in the

16 renovations of the cannery. We have open dormitories,

17 again, double bunking across the wall areas with single

18 bunking in the central area. In this dorm we have very

19 high ceilings and this is the way of using the cannery

20 space.

21

"Up the stairs you can see over in the corner is what

22 is called the day room area, or the T.V. area. Again,

23 configuration is such that it is difficult from the guard

24 post, what would be called the wicket on the main compound.

25

,

)

There is no surveillance possible from that guard post to

Pauline A. Stipes Official Federal Reporter

£he day area~ As you walkthrough, you can see open

2 dormitory housing, and in the corner, far side from the

3 camera is the shower area again.

4

"I am now standing in front of the guard post area in

5 each dorm. From the guard post area, there is fairly easy

6 visual access to the laboratory and toilet area. However,

7 from this post there is difficult of visual — providing

8 visual surveillance to the shower area. I will walk from

9 the guard post area to the shower.

10

"Again, we have the open dorm area on my right. I am

11 now immediately in front of the shower area. The camera is

12 located immediately in front of the guard post area, what

13 had been called the wicket in the main compound.

14

"As I enter the shower, immediately you see there is

15 a blind spot on one side of the shower. As I walk forward,

16 there are obstacles, and when I get to this side, I have

17 now entered the total blind spot which cannot be observed

18 from the guard post area, only from one part of the housing

19 area itself.

20

"I am back to the guard post area in dorm H, and I

21 will show there is easy surveillance here of the toilet,

22 and urinal area, and without too much trouble the officer

23 can exit a few feet of the guard post area, and see the

24 lavatory area. So here we have part of the dormitory which

25 is easily accessed visually.

Pauline A. Stipes Official Federal Reporter

"The same position in the guard post area. One of

2 the problems is that this wall which provides some privacy

3 for the laboratory area does obstruct visual access into

4 the dorm area itself. So you can't see the beds below me,

5 but I am in the single bunk area of the housing area in

6 walking back to the wall. Now at the end over here, as you

7 can see, there is limited access to lower bunks, and I am

8 over in the far corner, kater-corner from the guard post.

9

"In H dorm I am going up the stairs from the

10 dormitory bunk area into what we call the day room, or the

11 T.V. room serving H dorm. The top of the stairs in H dorm

12 entering had dorms T.V. card room area. As you can see, we

13 have a solid door. Guard post, and housing area is

14 downstairs. So we have no sight or sound capable of being

15 seen from downstairs without a separate officer up here to

16 surveil.

17

"You can see it is a large area with T.V., and game

18 tables.

19

,G dorm, also a dorm within the renovated cannery."

20

THE WITNESS: After a couple minutes here, we

21 can fast forward again.

22 (Tape continued.)

23

"E dorm is slightly configured. It is raised and has

24 opportunity to be somewhat higher than the rest of the dorm 25 area.

Pauline A. Stipes Official Federal Reporter

~I

"When you come up here, looking down from the guard

2 post area, which is slightly elevated, .you do have a

3 panorama of G dorm. Except with bunks against the wall, we

4 have single bunking here which does not obstruct visual

5 surveillance. To one side we have the shower areas which

6 are configured similarly to H dorm, and I repeat the visual

7 problems with the bathroom, and showers."

8

THE WITNESS: You can fast forward this.

9 The next dorm we look at was constructed recently as an £_

10 Dornu When you see F, we will stop there.

11 (Tape continued.)

12

"This is toilet area. The camera is looking from the

13 guard post. Again, there is a T.V. room upstairs. We are

14 outside in the perimeter beyond the cannery, or the new

15 dorm areas. This is F Dorm.

16

"F Dorm was built to be a dorm. It is not the

17 renovation of the cannery.

18

"As I am entering F Dorm, you see the basic

19 configuration of beds, double bunks against the wall,

20 single bunking in the central area. We also have, although

21 we have a central guard post, however, it is not near the

22 entrance as it was in the main dorm. This guard post has /

23 glass; visually surveil three sides of the dormitory you

24 a_re facing. Directly opposite of the guard post is the

25 shower/toilet area. From the guard post you can see to

Pauline A. Stipes Official Federal Reporter

)2

1 yourright,and to your left,all of the dorm a r e a s . A l l 2 of the housing, or bed areas.

3

"As I walk forward from the guard post, and the

4 camera goes back to in front of the guard post, I am

5 entering the toilet laboratory area.

6

"As you can see, there is some visual access from the

7 guard post, but as I walk through the central area, there

8 is limited visual access.

9

"Now, I walk to the far side, and I am exiting the

10 shower laboratory area to come back outside to the dorm.

11 Again, we have similar problems with visual surveillance

12 from the guard post area to that of the shower, toilet

13 area. We have reversed positions in F Dorm.

14

"The cameraman is in the shower area looking out to

15 the guard post where I stand, in front of the guard post

16 area. If I move from one side to the other, you can see

17 there is limited visual access.

18

"Again, in order to have adequate surveillance, the

19 officer would have to actually physically go to the shower

20 area. Adjacent to the F Dorm is E dorm, which was E dorm,

21 an honor dorm. It was a dorm four years ago, even though

22 in the north compound, it is still used as a dorm today.

23

"I am entering E dorm. As I said, used to be an

24 honor dorm for trustees. It is similarly configured with

25 the single bunking in the center, and double bunking on the

Pauline A. Stipes Official Federal Reporter

walls, the guard post can adequately surveil the

2 and shower areas located adjacent to the guard post. This

3 is the first dorm we've seen in which that surveillance is

4 easily possible. In standing in the guard post, you can

5 surveil the dormitory bed areas standing from the guard

6 post.

7

"You can easily surveil the dormitory area itself.

8 There is no double bunking in the central area. You could

9 pretty we will have visual access to the dorm. The guard

10 post not only has glass overlooking the dorm area, but from

11 inside the guard post, from inside the guard post, you are

12 not only next to the shower, and toilet area where you can

13 hear well, you can overlook the activities pretty much in

14 this area. You do have a privacy wall here in which people

15 could get below, but you could easily see people walking in

16 from the guard post area. There are very few blind spots

17 here, and certainly the proximity of this area to the guard

18 post allows for more easily heard auditory surveillance.

19

"Again, this was one of the original dorms from the

20 origination of the LaMarca case which served as an honor

21 dorm which served as reward for good behavior."

22

THE WITNESS: Finished.

23

THE COURT: That is it?

24

MR. LIPMAN: Your Honor, we offer Plantiffs'

25 Ex. 3 which is the actual video tape in evidence, and we

Pauline A. Stipes Official Federal Reporter

understand that counsel for the defendants will have an opportunity to review it.

THE COURT: All right. You have no objection

to the video tape, sir; that is, you will reserve your objection, I suppose, until you listen to the audio part of

the fast forward?

MR. DAVIS: That's correct.

8

THE COURT: All right.

9

MR. LIPMAN: Your Honor, I believe that

10 completes our direct examination, may I have a moment to

11 confer? 12

THE COURT: All right.

13 BY MR. LIPMAN:

14 Q

Now that we have had the benefit of having the visual

15 presentation of the tape, let me take you back to two

16 comments you made. You indicated there were problems with

17 the officers patrolling or being able to visually see

18 conduct in the confinement cells, protective confinement

19 ce 1 Is . VThere, as we went down the hallway of the

2 0 protective confinement cells, where would the officer be

21 stationed?

22 A

Qfficer routinely would be stationed out front in

23 kind of a front control post area. He would have no side

24 observation down PC, and he should be able to hear any kind

25 of screaming, but there is eight cells distance from the

Pauline A. Stipes Official Federal Reporter

95

1 beginning of the PC road, is that what you a r e —

2 Q

Yes. One final area. Although the videotape didn't

3 portray this, there may be testimony from an inmate later

4 this afternoon or tomorrow morning relating to a rape that

5 occurred in the library area. Where is the library, and

6 where is that situated in position to the tour that we have

7 just had?

8 A

I didn't go into the library this time, and in my

9 memory, I am not sure where it is from where we were.

10

MR. LIPMAN: All right. No further questions.

11

THE COURT: We will be in recess until 2:15.

12 At that time you will have questions on cross-examination?

13

MR. DAVIS: Yes, one problem we've got. We

14 have been supplied with the documents we requested a couple

15 weeks ago. They appear to be about two hundred pages in

16 length.

17

In order to be able to cross-examine the witness, it

18 will take time to review these. I wonder if we could have

19 additional half hour to 45 minutes to be able to review

20 them and be able to cross-examine the witness.

21

THE COURT: All right. We will be in recess

22 until 2:45.

23

(Thereupon, a recess was taken at 1:15 p.m.)

24

(Thereupon, court reconvened at 2:45 p.m.)

25

Pauline A. Stipes Official Federal Reporter

06

~~I

CROSS-EXAMINATION

2 BY MR. DAVIS:

3 Q

Dr. Swanson, in your testimony, you addressed seven

4 issues, or seven areas of concern?

5 A

That is correct.

6 Q

And in each of these areas, you told us that you

7 reviewed certain data and other material input to arrive at

8 your conclusion, correct?

9 A

That is correct.

10 Q

pj.d you in reviewing the material also have occasion

11 to review the disciplinary reports for the one year period

12 that were provided to your counsel yesterday?

13 A

I had asked for that, I think, a month ago, and got

14 them yesterday, and, frankly, did not have time.

15 Q

You did not? They were asked for at your deposition,

16 were they not?

17 A

That may be right. Sometime ago, at least.

18 Q

Several weeks ago?

19 A

Given the time of arrival, I had no ability to absorb

20 them.

21 Q

Would you agree that the disciplinary reports would

22 be highly relevant in respect to those opinions that you

23 gave regarding the tolerance by staff of homosexual

24 behavior, tolerance by staff of drugs on the compound, and

25 of weapons?

Pauline A. Stipes Official Federal Reporter

^A

Certainly that was one of the reasons I asked for the

documents. However, based on the information I had, and in

this case we are largely depending on inmate interviews,

the_consistency, the detail that I received from a sample

of inmates representing all the housing areas, plus 12 out

of 17 inmates in protective confinement, led me to feel

that there was an abundance of contraband. There was a

8 tolerance of alcohol and marijuana and a tolerance over

9 homosexuality.

10

Given the consistency, the amount of detail that I

11 was provided, I felt there was justification for coming to

12 that conclusion.

13

There is no question that I would have liked to have

14 seen the disciplinary reports. What I further said, I felt

15 a contributing factor that would help me understand that

16 particular approach in dealing with inmates was limited

17 ability the staff would have to confine inmates in any

18 length of time.

19

As we saw on the tape, we have 15 cells that could be

20 designated disciplinary confinement, only 10 were used for

21 fire code reasons. There was seven cells, I believe, and

22 administrative confinement, double bunking, and that, you

23 have a limit of 14 people you can detain pending

24 disposition of the case.

25

So, all of that together made it not only plausible,

Pauline A. Stipes Official Federal Reporter

1 but I was getting consistent information.

2

So that is where I base that. I don't disagree with

3 your premise that I would have been in a superior position

4 to understand staff reactions by disciplinary reports.

5 Q

In fact, that would be the only direct evidence of

6 how the staff reacts, would it not?

7 A

3?he incident reports also have bearing in terms of

8 the number of reports of contraband being — if we deal

9 with the issue of contraband, I reported the number of

10 incident reports that alleged — that dealt with

11 confiscation of weapons, drugs, alcohol, and that

12 contributed to my feeling. If you have a year that goes

13 by, and there is only 9 cases in which contraband is

14 actually confiscated, it seems consistent with my

15 observation.

16 Q

You are assuming, then, that of the incident reports

17 you had occasion to review that those would indicate that,

18 for instance, i,n_JL98J, there were only 9 instances when 19 drugs and alcohol were confiscated in the compound?

20 A

I was using those reports to get an idea of the

21 availability. They supported that the fact that they were

22 confiscating contraband. No, I suppose they are the other

23 way, and I say the reports would give me a full picture.

24 Q

If the disciplinary reports showed approximately 150

25 discipline hearings and dispositions, due to possession pf

Pauline A. Stipes Official Federal Reporter

T cpntraband, drugs, alcohol, and weapons, that would present
2 a somewhat different picture than the statistics you cited

3 showing 9 drug and alcohol confiscations, and four weapons

4 confiscations, or one year, six and four?

5A

Yes. In a funny way, it adds to my impression there

6 j.s an abundance of contraband on the compound.

7Q

I see. So if there is not a report of contraband

8 which is confiscated, that indicates that the prison is not

9 doing its job in searching out the contraband, but if they

10 can document they have been searching it out, and

11 confiscating it, that means there is too much contraband.

12 They are a looser either way, is that true?

13 A

I apologize for the catch 22 of that.

14

Let me further explain there is an intervening set of

15 information, and that is that the inmates are so consistent

16 about the prevalence of homemade wine, marijuana, crack

17 cocaine. That however many instance there are, it is

18 fairly apparent by the consistency of that information that

19 those drugs are available on compound.

20 Q

Well, the inmates that you interviewed weren't really

21 consistent on that point, were they? In fact, there was

22 quite a bit of desparity whether drugs were more prevalent

23 at GCI than other situations where some of those inmates

24 bad experienced?r

25 A

You are correct in that there was not unanimity. I

Pauline A. Stipes Official Federal Reporter

too

1 felt the^ combined totality of that indicated a high degree

2 o_f availability.

3 Q

Now, the group that you selected among the inmates

4 that you interviewed were selected by you among primarily

5 the white inmates, correct?

6 A

That is correct. As I stated in my deposition, the

7 reason I took predominance of white inmates was because of

8 the issues of LaMarca in which the white inmates were the

9 preponderent population being victimized.

10 Q

And you interviewed how many?

11 A

Sixty-four, if my recollection is correct.

12 Q

How many were willing to interview with you?

13 A

Let me answer this way, thirty-one interviewed.

14 Q

The others refused to interview with you?

15 A

That is correct.

16 Q

Do you think the method of collection would suqqest

17 tjiat you were selecting inmates that were more willing to

18 sound out complaints than other inmates? Gripers, in other

19 words?

20 A

The higher porportion that you lose by attrition,

21 either not showing up, or refuse to be interviewed, the

22 higher porportion of attrition, the more you have to worry

23 about bias.

24

There is very little way to evaluate the direction of

25 that bias, however.

Pauline A. Stipes Official Federal Reporter

L01

1 [1 Q find you had almost 5H percent refuse to interview?"

2 A

Yes.

3 Q

And as I understand it, you checked with the inmates

4 who refused to interview to make sure it was their own

5 choice to choose not to interview with you?

6 A

It was my methodology to verify refusal, yes.

7 Q

And 1:nose inmates knew what your position was in this

8 litigation, that you had been retained to come and search

9 out the conditions at GCI for the plaintiffs in this

10 lawsuit?

11 A

Whether they knew or not, I explained to them that I

12 was an expert. I was here to determine what the conditions

13 were.

14

I would hope that I portrayed myself in the same way

15 I portray myself here. I am an independent expert. I

16 testify as to what is objectively true, to the best of my

17 ability.

18 Q

In your review of what the inmates told you, did you

19 not find a number of direct contradictions in specific

20 items of relation to you?

21 A

There certainly were. Without being more specific, I_

22 would say in general you would find contradictions within

23 that body of interviews.

24 Q

For instance, to take an example which is less

25 directly on the point we have been discussing, but which I

Pauline A. Stipes Official Federal Reporter

JL02

1 think Ts illustrative of the general situation, you had two

2 inmate interviewers discuss a correctional officer by the

3 name of Gray, did you not?

4 A

Two interviewees.

5 Q

Interviewees?

6 A

Because I was the consistent interviewer.

7 Q

I am sorry. Qne of those told you that Gray never

8 patrolled his post?

9 A

Yes.

10 Q

And the .other one told you not only did he patrol his

11 RCjgt, but he felt safe at night when Gray was on duty?

12 A

You are correct in making that observation. What I

13 don't know if there is two officers Gray, or referring to

14 the same officer.

15 Q

If they are referring to the same officer, that would

16 indicate that either the perception of the inmates as a

17 group may not be wholly accurate in respect to the events

18 that they are reporting, or they may for one reason or

19 another be reporting from a position of bias, correct?

20 A

That is correct. What I remind counsel is, I take as

21 a basic assumption with these interviews that any single

22 source is unreliable. I don't believe I testified to any

23 one way or the other about officer Gray, simply because

24 that was not something I would take with any degree of

25 assurance, confidence.

Pauline A. Stipes Official Federal Reporter

.03

~Q

That is right. But that is illustrative of the

2 problem you have with the inmate interviewees?

3A

It is also illustrative why I come up with that rule

4 of interpretation.

5Q

When you ask, going to the question of the various

6 types of contraband on the compound, weapons on the one

7 hand, and drugs and alcohol on the other, wjieja you ask an

8 ijimate or any other person in a position such as the inmate

9 as to whether there is a prevalence of that item on the

10 compound or not, you are not receiving an imperical answer,

11 a_re you?

12 A

Let me answer this way. I am getting their

13 perception, or subjective answer.

14 Q

Are you aware of studies that have been done

15 regarding reliability of inmate perception as to conditions

16 in prison?

17 A

I don't know of any particular study you may be

18 referring to. I will say, in general, inmates who are held

19 involuntarily in any institution, whether it be a prison.

20 mental hospital, or, I suppose, boarding school, military

21 school, tend not to see their situation in the best light.

22 Q

They also have tendencies to exaggerate in reporting

23 mattersf do thejy_Jig_t?

24 A

Some, yesj some,, no. It is difficult to say

25 consistently with any particular case.

Pauline A. Stipes Official Federal Reporter

104

1 Q

For instance, the inmate that reported that fire

2 hoses, or water hoses were dragged through the food before

3 it was served to them?

4 A

Yes, I recall that.

5 Q

That would not be upon all the information you have

6 apparently a reliable statement, would it?

7 A

It is a single case cited out of all of the

8 interviews. All I can say, in general there were a number

9 of inmates that complained about the quality of food, and

10 the sanitation in which it was delivered.

11

As you know, that has not been part of the focus of

12 what I have been looking at.

13 Q

Right, again, I raise it because that illustrates

14 that there is a potential problem with the reliability of

15 wjiat the interviewees that you spoke with reported to you?

16 A

Again, yes.

17 Q

And you found among those interviewees a number that

18 indicated to you that dope and alcohol or marijuana and

19 alcohol or other drugs and alcohol, while present at GCI_,

20 was no worse than that which they had found at other

21 institutions, did you not?

22 A

That is correct. Another thing I might say is — It

23 is kind of central to what I have been trying to do. I am

24 taking this set of information in the context of the set of

25 information I had before. The findings of the court, and

Pauline A. Stipes Official Federal Reporter

:LO5

looking at it now compared to then.

Q

.And, however, I am not talking about the description

between prior conditions, and present, but between

institutions. You had a number of inmates, some said that

drugs and alcohol were more prevalent than other

institutions they had been at, and others said they were no

more prevalent, and even one, I believe less prevalent than

X institution which is some code you interpreted in your

notes that he had been at?

10 A

That's correct. Just to make it clear, the situation

11 that I was in, given that every — not every, most inmates

12 tend to be somewhat paranoid, I indicated I would not be

13 reporting the information by their identity.

14

When I transcribed my interviews into notes for your

15 purpose, I took out that information that might allow for

16 their identification, simply because I was honoring promise

17 of confidentiality I made to them. I wouldn't withhold

18 that from you, except that was the conditions upon which I

19 set up the interviews.

20 Q

Right. Now, ftrhen you asked an individual in the

21 pjjsition of these inmates how he perceives the prevalence

22 o_f__any of these items, you are assuming unless you

23 ascertain in advance that the standard by which he is going

2 4 to judge the prevalence or non-prevalence and thereby give

25 y.ou some sort of report of his perceptions is similar to

Pauline A. Stipes Official Federal Reporter

.06

j your own, are you not?

~

2 A

Well, I^ try to allow for that. When you are talking

3 about which institution — I, as a matter of routine with

4 them ask them how long they have been incarcerated, have

5 they been incarcerated in any other institutions, if so,

6 which, how long, so I could get some impression of what

7 their base line would be.

8

I was trying to provide, elicit from them information

9 that they would say something to me about their frame of

10 reference, but I didn't attribute my own frame of reference

11 to them. As a matter of fact, I have probably seen more

12 institutions than any one of them.

13 Q

In order to be able to judge properly the answers

14 that they give you, you really know the frame of reference

15 that each one is working with, do you not?

16 A

I think that would be a correct description, yes.

17 Q

I did not notice in any of the notes which you

18 prepared from the interviews that you had specifically

19 determined that particular inmate's frame of reference,

20 except on occasion, there was an indication of a comparison

21 between GCI, and some other institutions. Other than that,

22 there did not appear in the notes any effort on your part

23 to determine the individual inmate's frame of reference

24 upon which he was giving his opinion to you, is that

25 correct?

Pauline A. Stipes Official Federal Reporter

107

1 A

Well, no, I am not" sure how the notes read that gave

2 you that impression. The background I elicited, clearly I

3 was seeing their race, their age, their size.

4

I was asking them how long they had been at GCI, give

5 me a feeling of what incidence they were going to be

6 referring to, and what institutions they had been at. How

7 would they rate this institution, and that was in the

8 context of their exposure to other institutions, and that

*•

•

—

•

~—~

~

>

9 w<as_fairly systematically done, and it was systematically

10 djjne. They either were not responsive to that, or I did

11 not code it that particular way.

12 Q

Did they give you any concrete terms to support what

13 they might have meant by their description of any of these

14 items as being prevalent or not prevalent on the compound?

15

Did they, for instance, indicate how many instances

16 that they thought that buck, for instance, which is

17 alcohol, was manufactured on the compound?

18 A

No.

19 Q

pr any concrete reference to the number of weapons

20 that they felt were possessed on the compound?

21 A

Only in the sense that fairly consistently people

22 indicated that if you want a weapon, you could get one

23 within minutes. If you want buck, it is available. If you

24 want drugs, it is available.

25 Q

Actually, in respect to the last question I asked

Pauline A. Stipes Official Federal Reporter

.08

1 you, there were some who did specify, there are some who

2 said they had never seen a weapon on the compound, several

3 of those. There were several who said they had seen one or

4 two weapons on the compound, thereby giving a firm figure

5 of some sort?

6 A

I think that is correct.

7 Q

The others, though, left it in terms of vague

8 qeneralities, did they not?

9 A

TJia_t_ is probably correct.

10 Q

Let's go through in respect to ftuck or prison wine,

11 alcohol, that is a substance which is easily manufactured

12 by an inmate possessing only sugar or fruit juice, yet, and

13 water, correct?

14 A

That is correct.

15 Q

And, certainly, sugar is available in any institution

16 that serves food, is it not?

17 A

That is correct.

18 Q

Water is available, we would hope, at any institution

19 that houses inmates?

20 A

Yes.

21 Q

And yet is a fairly small item which it is easily

22 Qoncealed, is it not?

23 A

That is correct.

24 Q

Are you aware of any prison in the country that does

25 not have a problem with buck?

Pauline A. Stipes Official Federal Reporter

.09

1 A

Let's iust say it is not an uncommon feature within a"

2 correctional environment, jail, prison, for buck to be one

3 of the contraband items.

4 Q

And there is always, at virtually all prisons, a

5 competition between the prisoners, and staff on the one

6 hand, the prisoners making the buck, and concealing it, and

7 the staff continually searching it out, finding it, and

8 removing it?

9 A

That isessentially a good description of almost

10 every dimension of correction environment. Escaping,

11 keeping them from escaping, and getting rid of the buck,

12 that is accurate.

13 Q

The prisoners who have twenty-four hours a day to

14 plot, plan, and carry out whatever they wish to do, while

15 the staff are there in eight-hour shifts, correct?

16 A

That is correct.

17 Q

And the inmates in the twenty-four hours often have

18 v,ery little to do other than plot, plan, and carry out

19 their designs unless they happen to be on a work crew?

20 A

I have heard it say, the inmates have a full time

21 job. The other people have 40 hour a week job. You

22 generally have the staff work there with no inmates, or few

23 inmates, because the inmates will find out the defects of

24 an institution much qui_cker than the staff. I agree with

25 your point.

Pauline A. Stipes Official Federal Reporter

LlO

~Q"

TKey will find^wheTe it is possible to conceal items,

2 where it is possible to carry out activities outside the

3 view or presence of the staff, and carry on whatever other

4 activities they may wish to do?

5A

t think that characterizes as well with a challenge

6 and need for professionals in the field, that is correct,

7 it is a challenge.

8Q

With respect to buck, since buck is a given at any

i
9 long term prison facility, and at many short term jails,

10 and since it is an item that exists in some substantial

11 4egree at most prisons, in order to know whether it is more

12 or less prevalent at a particular institution, you would

13 need to have some basis for measurement, would you not?

14 A

As far as that goes, yes, that is correct.

15 Q

Do you regard subjective evaluations by the inmates

16 a_s being highly reliable in evaluating on an imperical

17 basis the presence of buck at an institution?

18 A

It certainly ,isnft ideal. In the area of

19 criminology, corrections, those areas in which we are

20 talking about illicit activities in large part, we are

21 always dealing with problems of motivated misinformation.

22 All I can say is that 1_ have been studying, researching or

23 qUierwise working within correctional institutions and

24 environments, and it is with that frame of reference from

25 1967 to the present that I rendered my opjninn ahnnt-.

Pauline A. Stipes Official Federal Reporter

.11

being on the high side availability of buck~) homemade wine,

2 drugs.

3Q

Based on essentially the inmate interviews—

4A

It is certainly a very significant part.

5Q

6>el--you review in preparation for rendering your

6 o__j_nion the procedures which are undertaken at Glades

7 Correctional at the present time in respect to controlling

8 buck?

9A

I wouldn't just limit it to buck. . There is a fair

——

____________

r

10 amount of attention of controlling contraband of buck, and

11 illegal substances.

12 Q

Did you review specific efforts that are taken?

13 A

Well, I am not sure to what you are referring.

14 Q

pid you in any of your undertaking in preparation for

15 your opinion on this issue review whether there was any

16 pattern with respect to the manufacture or the storing of

17 buck by the prisoners on the compound?

18 A

Well, we are getting into areas which I am not

19 confident. I have some information in terms of how that is

20 done, but I am not confident in that. I am not sure what

21 you are referring to.

22 Q

Did you determine the — From any of the inmate

23 interviewers, did you determine from them concrete

24 instances of the manufacture and concealment of buck to

25 learn whether what was being done by those inmates was

Pauline A. Stipes Official Federal Reporter

.12

1 T] something which was calculated to avoid diligent search

2 procedures by the staff, or whether it was efforts by the

3 inmates of such nature that any diligent search would

4 likely uncover it?

5 A

Let me just say when you—when you deal with

6 information, you are dealing with inmate responsing. You

7 are talking about specifics of introduction of contraband

8 into the correctional environment. The information you get

9 is increasingly unreliable. Specifics of that get into 10 things they have a vested interest in. So, I donft take

11 much of that seriously, and it has to become overwhelmingly

12 consistent.

13

If that were the case, in something as serious as

14 introduction of contraband, I would share that with the

15 authorities.

16

Saying that, what I would say that impressed me were

17 %he statements that indicated that the transport of

18 alcohol, one dorm to another, or across the compound seemed

19 to be relatively successful in ways that I would think

20 questioned the diligence of the staff.

21 Q

All right. You are talking, for instance, about the

22 relationship of several of the inmates who said one could

23 carry a certain quantity of it across the compound without

2 4 being challenged?

25 A

There was one such, yes.

Pauline A. Stipes Official Federal Reporter

113

1 Q

Do you know in what fashion the buck was transported

2 that he related to you?

3 A

Ij it is the same case that is coming to mind, it was

4 j.n a bucket.

5 Q

Do you know what that bucket was being purportedly

6 used for?

7 A

I presume something ostensibly legitimate.

8 Q

For instance, it would be possible, would it not, to

9 transport items from one dorm to another in a laundry cart

10 with laundry?

11 A

Yes.

12 Q

Or if an inmate were on a construction detail, or

13 some other type of particular detail, work detail, he might

14 be able to conceal a certain quantity of some contraband in

15 the work materials that he has, would he not?

16 A

No question.

17 Q

So you would really need to know whether you are

18 talking about an inmate walking across the compound

19 carrying a fifth of Jack Daniels in a bottle saving such,

20 or whether you are talking about him carrying it hidden,

21 concealed in what would ostensibly appear to be a

22 legitimate pursuit by him?

23 A

That is correct.

24 Q ffas there any indication that when such items were

25 transported, thev were transported in any open and easily

Pauline A. Stipes Official Federal Reporter

~~T detectable manner?

2 A

I can't be specific nor certain of the means of

3 transporting.

4 Q

You have had some contact with Florida State Prison,

5 have you not?

6 A

That is correct.

7 Q

Florida State Prison is a single cell prison?

8 A

That is what is unique about it. In the system, it

9 is the maximum, I suppose, the heavy maximum institution of

10 the State.

11 Q

Where the prisoners are locked down in single cells,

12 and have limited access to an outdoor compound, outside of

13 a structure?

14 A

Well, I think it is incorrect to say all the inmates

15 are locked down.

16 Q

I don't use the term locked down in a technical

17 sense. Where they lack the freedom to come and go from the

18 facility that they are assigned to?

19 A

Well, that institution has the capacity to lock

20 everybody down, and has the capacity to control movement

21 more so than the other institutions.

22

THE COURT: Capacity to control what?

23

THE WITNESS: Movement. 1100 cells, each cell

24 is individual. A high porportion of Florida State Prison 25 are kept locked in.

Pauline A. Stipes Official Federal Reporter

115

~~I BY MR. DAVIS:

2 Q

And yet, even at Florida State Prison, there is an

3 abundance of buck, is there not?

4 A

Well, it has been a number of years, I have visited

5 Florida State Prison on a variety of occasions in a variety

6 of roles. I would say that is true.

7 Q

You would agree it is much more highly structured

8 facility?

9 A

I would agree to that. Although, if I may, the time

10 in which I was aware that Florida State Prison had very

11 large amount of buck, had a large amount of violence, it

12 was under State Court suit in which I was chairman of a

13 commission to review that. That institution at that time

14 was found also to be unconstitutional. Through a variety

15 of actions recommended by the court and instituted, I felt

16 the institution had become remarkably improved in which

17 those situations were much diminished.

18 Q

And yet still present. Even with the institution of

19 all the additional procedures, buck was still quite present

20 at the institution?

21 A

I would say when you are dealing with long term

22 inmates, even if I couldn't find it, I would probably hold

23 that assumption.

24 Q

In respect to drugs, particularly marijuana, and

25 crack cocaine — incidentally, the reports you had

Pauline A. Stipes Official Federal Reporter

116

1 Indicated that while — that among drugs, the drug of

2 prevalence was marijuana rather than cocaine, did they not?

3 A

yes, I think that is correct.

4 Q

We are talking about GCI?

5 A

Yes.

6 Q

We are talking about your inmate interviews?

7 A

Yes.

8 Q

Both marijuana and crack cocaine, or even powdered

9 cocaine are utilized in such quantities as are easily

10 concealable, correct?

11 A

Yes, and I think I further your point by saying if

12 anything, cocaine and crack is more easily consumed.

13 Q

Right. And once again in an institution such as GCI

14 which allows inmates to have visitors from the outside, and

15 which has work crews from the outside, and which has three,

16 11 acre compounds with perimeter fences around them, over

17 which items can be thrown, j.t is certainly not possible to

18 completely exclude the introduction of such items as

19 marijuana or cocaine, correct?

20 A

Only in the sense that nothing is impossible. Let me

21 say that we are talking about an institution that was built

22 in '32, open dormitory housing, a large fenced in area, a

23 crew that goes out and works. All of those things operate

24 against having the kind of control one would desire.

25 Q

Now, you are aware of the procedures that are

Pauline A. Stipes Official Federal Reporter

.17

I~]l followed by Glades CorrecTTonal to prevent the introduction

2 o_f such contraband, are you not?

3 A

l believe so.

4 Q

For instance, when an inmate has a visitor, that

5 inmate is strip searched each time before he is allowed to

6 get into the compound, correct, from the visitor park?

7 A

I don't believe that is correct.

8 Q

You don't believe that is so?

9 A

Let me say at least from the incident reports that

10 I've read. There is a high number of inmate visitors who

11 are asked to submit to strip search, and there are a number

12 of visitors who are strip searched, but if I have the sense

13 of it, my impression is that those visitors are not — the

14 visitors in general are not routinely stripped. If they

15 were, that would be very dramatic.

16

What, instead, happens is, when there is information

17 that this particular inmate may be involved in drug

18 dealing, or this particular visitor from a snitch or from

19 some other source of information may be providing it, that

20 those visitors are, in fact, the ones that are apt to

21 subject to being strip searched. I don't think it is

22 correct to say all visitors are strip searched.

23 Q

I was referring to all inmates being strip searched

24 before going back into the compound?

25 A

I didn't hear it that way.

Pauline A. Stipes Official Federal Reporter

JL18

1 Q

Are you — Do you agree that the inmates are strip

2 searched before they go back into the compound?

3 A 4 Q

Yes. Relating to the answer that you thought was

5 responsive to my question, but, in fact, was responsive to

6 the next question I have, in fact, the institution also has

7 a program of attempting to identify likely visitor

8 introduction of contraband onto the compound, is that

9 correct?

10 A

Yes, and that seems to be validated by the incident

11 reports I have had access to.

12 Q

And those procedures include the use of hand metal

13 detectors, the use of a walk through metal detector, the

14 use of informants, and I believe if you reviewed, as you 15 indicated, the incident reports, you probably notice that a

16 number of those incident reports indicated searches called

17 for because of information received from confidential

18 informants, correct?

19 A

Or just information received, yes. I saw that a

20 number of times.

-

_.,

21 Q

Indicating a fairly good intelligence system at the

22 prison, would you not agree?

23 A

There is a number of false positives. Whether you

24 want to grade it down in terms of being a good intelligence

25 source, I am not sure.

Pauline A. Stipes Official Federal Reporter

.19

~Q

When a visitor refuses to submit to a strip search,

if that visitor is one who has been identified as being a

potential introducer of contraband into the compound, that

visitor is not allowed to complete the visit, is that

correct?

A

That is right, and there have been a number of

incident reports where that person has declined, gone away,

returned a half hour or so later, and I think correctly so

is denied the visit.

10 Q

The clear implication being the person did, in fact,

11 have contraband, deposited it elsewhere, and came back?

12 A

Certainly the inference is there.

13 Q

And there are, are there not, perimeter patrols at

14 Glades Correctional Institutiona1?

15 A

That is my understanding, yes, I've seen them.

16 Q

And while you were at Glades, did you have occasion

17 to observe the work crews reporting back in with their

18 vehicles?

19 A

Not with vehicles, no, I don't think I saw that.

20 Q

.Are you aware of the search procedures on inmates

21 reporting back in from work crews, search procedures for

22 %he vehicle?

23 A

No.

24 Q

I assume you have no opinion, then, whether those are

25 adequate or not?

Pauline A. Stipes Official Federal Reporter

.20

~^

The problem is thaF I am of the opinion that there is

2 a fair amount of drugs on the compound so that what I would

3 say is that to the degree those methods are adequate, there

4 j.s some other means of introduction yet to be found.

5Q

In respect to the searches that are made within the

6 dormitory, are you familiar with the search procedure

7 there?

8 A ffihat you might call spot searches, or shakedowns

9 within a smaller area, yes, I do know those occur.

10 Q

And it is policy, is it not, that in every dorm a

11 certain number from 20 to 25, or thereabouts, foot lockers,

12 and bunks are searched each day on a random selected basis

13 bv the guards?

14 A

I don't know the detail of that, but I assume that is

15 true. I wouldn't argue with it.

16 Q

And, in addition, there are, are there not,

17 (Occasional dormitory wide shakedowns?

18 A

Yes.

19 Q

In addition, there are two correctional officers who

20 function in the position of compound police officers, are

21 there not?

22 A

I think that would be reasonable, yes.

23 Q

Officers who had years of experience at detecting and

24 locating contraband?

25 A

I don't know, but, fine.

Pauline A. Stipes Official Federal Reporter

121

^ Q

If one was Frank NeTppI, would that strike a note of

2 recognition with you?

3 A

He was referred to in a very positive light by some

4 of the inmates.

5

THE COURT: I didn't understand.

6

THE WITNESS: The name means something in the

7 sense he had received compliments from some of the inmate

8 interviewees in terms of being a very thorough officer.

9 BY MR. DAVIS:

10 Q

In respect to weapons, the vast majority of weapons

11 that exist on the compound are some type of shank, are they

12 not?

13 A

That is correct.

14 Q

Or a pipe of some sort?

15 A

That is correct.

16 Q

And a shank is any type of pointed or edged

17 implement, is it not?

18 A

I would agree with that. Essentially, it is a

19 homemade knife that can be made out of any number of

20 things, screwdrivers, tools, metal chair legs, anything

21 that can be fashioned into a weapon.

22 Q

Any piece of metal, for instance, a small metal bar

23 of some sort. Flat metal bar can be taken, rubbed against

24 concrete someplace to give it a reasonably sharp edge and

25 made into a knife of homemade fashion?

Pauline A. Stipes Official Federal Reporter

i
1 A

122
That is right. I have seen remarkable ingenuity in

2 fashioning things out of such.

3 Q

A piece of stiff wire?

4 A

Yes.

5 Q

Heavy guage wire?

6 A

Yes.

7 Q

A piece of radio antenna can be used?

8 A

Well, the radio antenna useage I have seen is

9 cardboard and cylinder to convert the cardboard into a zip

10 gun.

11 Q

Well, it can be broken off into a short stack

12 instrument, correct?

13 A

It is going to have to be pretty rigid wire. And

14 also such items as the pieces of metal slat from windows

15 and window frames can be used, correct?

16 A

Ygs, I think the simplest answer is most things made

17 of metal can be converted into weapons.

18 Q

And some also consist of ball point pens that have

19 nails placed in them instead of the cartridge, and melted

20 into a stack instrument?

21 A

I have also seen toothbrushes.

22 Q

Toothbrushes? In other words, when it comes to

23 weapons, contraband is usually self generated on the 24 compound, correct?

25 A

It is another one of these issues, to quote you, is a

Pauline A. Stipes Official Federal Reporter

.23

1 constant challenge between"the staff, to stay ahead of the

2 inmates, and the inmates are quite ingenious, and they tend

3 to be there seven days a week, 24 hours a day.

4 Q

If you removed — I am sorry.

5 A

If I may. One of the things that is also true is as

6 a compound becomes threatening, the motivation is more

7 increased. So, if you have a threatening environment, you

8 get the motive for the inmates to construct these weapons.

9 Q

And i,f you were to remove the weapons from an

10 institution, do you have any doubt one day there would not

11 be new weapons from the institution?

12 A

Well, it is a matter of degree. If you have a

13 general shakedown, and remove them, I suspect you couldn't

14 get all the weapons, but you could remove a significant

15 number. You could reduce the availability by repeating

16 such action. I don't know how long it would take.

17

You are certainly correct in that the procedure is

18 inmates make them, and staff take them away. It is a

19 matter if inmates are making them faster, staff is taking

20 them away faster.

21 Q

And in giving your opinion as to the availability,

22 again, weapons, as with buck, you are going to find weapons

23 on any prison compound, are you not?

24 A

I think that is correct.

25 Q

And one would assume that in most prisons, such as

Pauline A. Stipes Official Federal Reporter

L 24

1 GCI, there would be procedures from removing those from the

2 compound, from identifying them and removing them, correct?

3 A

That is correct.

4 Q

In order to know whether those measures are

5 p_ffpr<-ive, you really need some imperical data, do you not?

6 A

Of course.

7 Q

Because you take it as a given there will be weapons

8 present on the compound, therefore, the presence of weapons

9 on the compound doesn't prove one way or the other that the

10 methods used to identify them and remove them are

11 effective, correct, the presence of weapons, per se?

12 A

Well, i^fc is very difficult to respond because there

13 is that magnitude dilemma, when is this within the realm of

14 — when is this an effectively run institution? When is

15 this above, when is this below?

16

I think my point was in terms of the testimony this

17 morning that it was my impression that weapons had been

18 reduced in number from four years ago, were still

19 relatively available. I was still concerned, and I am

20 certain Superintendent Lambdin is concerned about their

21 availability.

22 Q

You say relatively available. What are you comparing

23 tjie availability?

24 A

Let me takp r p l a H v P nut-- Avai 1 ah] e .

25 Q

You would recognize that weapons are available at any

Pauline A. Stipes Official Federal Reporter

125

~T institution?

2 A

That is correct.

3 Q

Now, are you familiar, did you learn on the basis of

4 your interviews, or on the basis of any other research, are

5 you aware of_ the method and the procedures of concealment

6 of weapons at GCI, and of any patterns<concerning that?

7 A

Concealment by inmates?

8 Q

Yes.

9 A

Again, those kind of specifics, I tend to take as

10 uncertain and unreliable ,n but I will tell you the most 11 common cases are that inmates will haye them buried

12 somewhere on the compound, under trash cans.

13

Typically, they will have a weapon or^food that they

14 can find in different locations.

15 Q

They don't keep them by their bunk or on their person

16 except at specific times except when they feel the need to

17 protect themselves for a potential threat, or the need to

18 utilize them for some other purpose?

19 A

that is correct. In Glades it is more common than

20 not that an inmate will — especially four years ago, an

21 inmate would have one readily available during sleep time.

22

THE COURT: During what?

23

THE WITNESS: From sleep time, to protect

24 oneself from assault. You don't want to have one that is.

25 attributed to you if it is carried on you. You won't carry

Pauline A. Stipes Official Federal Reporter

.26

one, but have one^it pTac es where you might need it.

BY MR. DAVIS:

3Q

The reason you don't want to have it on you, because

4 then you will receive a disciplinary report, or maybe even

5 a^ criminal charge, depending upon the degree of the

6 certainty of the proof of possession?

7A

That is correct.

8Q

And in regard to other weapons, did you determine

9 whether there was any indication of a prevalence of any

10 weapons other than homemade shanks on the compound?

11 A

There is some indication that ammunition is getting

12 in_, in terms of commercial guns, and you read, there is

13 some isolated reports that people have heard of a gun being

14 i_n there, that is relatively — that is quite unreliable.

15 I would be surprised, it could be. The other thing besides

16 ammunition and shanks, there were toy guns.

17 Q

Okay.

18 A

Facsimile guns.

19 Q

Now, in r e s p e c t — Made out of a piece of wood?

20 A

Or in plastic.

21 Q

Now, with respect to the gun that you refer to, that

22

an inmate saying that he had heard from some other

23 itnmate that there was a gun?

24 A

Right.

25 Q

There was no firsthand information of the

Pauline A. Stipes Official Federal Reporter

127

1 availability of any manufacture of weapons on the compound, 2 was there?

3 A

That is right, and I haven't reported so.

4 Q

One of the sources for shanks on a prison compound

5 are the eating utensils, are they not?

6 A

Yes.

7 Q

For instance, inmates may take forks or spoons? They

8 are not given knives, are they?

9 A

That is not uncommon, or if the knives, they are

10 given plastic ones. I honestly don't know the situation.

11 Spoons and forks, if there are knives, are frequently

12 converted to weapons.

13 Q

By sharpening them?

14 A

Yes.

15 Q

And if the Glades procedure was to have available

16 only plastic implements, you would agree that certainly is

17 a( significant step to reducing the availability of easily 18 .obtained shanks?

19 A

Yes, that would be the reason for it, and that would

20 help, yes.

21 Q

Now, you indicated that you thought that in order to

22 correct the contraband situation, you conceived as existing

23 at Glades, that one of the corrective steps was to effect

24 staff attitudes, is that correct?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

128

~Q

Do you have any basis for your determination of what

2 s^aff attitudes were other than what was related to you by

3 gome of the inmate interviewees?

4A

No_.

5Q

Okay. In respect to the elimination of currency, it

6 is true, is it not, that only one facility in Florida has

7 ever tried to eliminate currency on the compound?

8A

I believe that is correct.

9Q

And, again, among institutions throughout the

10 country, it is the rear institution which has eliminated

11 currency on the compound, is it not?

12 A

I would say it is not the norm. However, it is in

13 response to trying to reduce violence, extortion

14 activities, and contraband.

15 Q

And like almost every procedure that is utilized,

16 prisoners find a way around it?

17 A

Yes, that is right. That does not suggest you

18 shouldn't try to stay ahead of them.

19 Q

Just in respect to the elimination of metal spoons

20 and forks may eliminate one source of metal that inmates

21 might use to make shanks with, inmates will find

22 alternative sources, maybe a little more difficult, but

23 with their ingenuity, not all that difficult, would you

24 agree?

25 A

I think there is no question, it is much like a chest

Pauline A. Stipes Official Federal Reporter

.29

1 game, you make a move, they~make a counter move, you come

2 up with another move. That is the nature of the challenge.

3 Q

Just as for instance the famous fence outside the

4 confinement area?

5 A

The wood slat fence?

6 Q

Yes. Which was put up originally to reduce

7 communications between the inmates inside and inmates

8 outside. The response was, inmates tried to crawl

9 underneath?

10 A

Yes, inmates secreting themselves, and taunting the

11 i n m a t e s —

12 Q

And razor wire was placed on the fence to keep them

13 from climbing up under the fence?

14 A

I am not sure.

15 Q

Isn't that your testimony that Mr. Music placed razor

16 wire behind the fence?

17 A

That may be. We are talking about four, five years

18 ago.

19 Q

And the response to which was the inmates went over

20 the roof to try to get around that fence, never ending

21 battle, correct?

22 A

I think it is an interesting profession.

23 Q

And if you were to freeze the moment at any time, you

24 would fined the action on the part of the prison 25 restricting inmate activity such as that, and the inmate's

Pauline A. Stipes Official Federal Reporter

.30

Til response which miglvt We Uilffe rent a few moments further

2 down the line?

3 A

If you have a prison administration aesthetic, there

4 is no question the prisoners would find a way around it.

5 It has to be dynamic.

6 Q

Even dynamic, there is a change that is counter?

7 A

Some of the changes that occurred from '84 to now

8 have been for the good, and have lasted for the good.

9 Q

Now, you indicated that your method of determining,

10 turning to point B, determining that the turnover rate was

11 to add up the monthly percentages, and to take the sum of

12 the monthly percentages, is that correct?

13 A

That is right.

14 Q

That is not the method which the Department of

15 Corrections uses which it utilizes on a comparative basis

16 fcp determine turnover rates among its institutions, is it?

17 A

I am aware of that. I selected that method. That is

18 the method I used the last time I was here.

19 Q

Okay. If you want, again, I would assume that you

20 wguld agree that any institution of size such as this, you

21 w_ould expect to have turnover, it is a given?

22 A

I think that is correct.

23 Q

So, in order to determine if there is a problem with

24 a turnover rate, you need to have some standard to measure

2 5 fche turnover rate a t this i n s t i t u t i o n a g a i n s t , correct;?

Pauline A. Stipes Official Federal Reporter

.31

I~J] A

That is gorrect. "Let me —

2 Q

That is turnover, per se, isnot an indicia of

3 something wrong at a prison. It would be an excessive

4 turnover rate?

5 A

Of course. Let me just say that under my way of

6 calculating, comparing today's turnover with that of five,

7 six, seven years ago, there has been a decline in turnover.

8 Q

In fact, the turnover rate at Glades Correctional, at

9 the current time, and going back over the prior year, is

10 the lowest in South Florida, is it not?

11 A

I don't know that figure, but it is not a bad

12 turnover rate. I was trying to say in my testimony that

13 the turnover rate had been reduced.

14 Q

Now, you indicated that you had found on some

15 occasions— Looking, again, I gather you drew these

16 figures from the monthly reports from the superintendent?

17 A

Are we still talking about turnover?

18 Q

We are talking about Category B of your opinion?

19 A

But there are several items in that.

20 Q

Yes. I am talking specifically of the overtime

21 hours?

22 A

That came from the superintendent's monthly report.

23 Q

Do you know what the reason for the overtime useage

24 was?

25 A

Which year?

Pauline A. Stipes Official Federal Reporter

.32

1 Q

Any year?

2 A

Variety of sources of that. Sickness, one of the

3 things that does occur at GCI is when you have people going

4 to the private hospital. You have to escort or you have to

5 worry about providing security, that would be another

6 source of overtime.

7 Q

One of the sources of overtime, GCI for a period up

8 until this past year was maintaining a unit at a local

9 hospital which required staffing, was it not?

10 A

That would certainly b e —

11 Q

And I believe Mr. Lambdin indicated that that

12 particular useage was the major cause for the increase from

13 the 900 hours to 2,000 hours level had ceased, did he not?

14 A

I don't recall. That may very well be true.

15 Q

Okay. Let's even take that 2,000 hours which was

16 back in 1988. Do you recall what the total number of staff

17 is at Glades Correctional?

18 A

I don't. I can look it up.

19 Q

Approximately 230, 240, is that correct?

20 A

I think that is in the ballpark.

21 Q

So this would indicate about seven or eight hours of

22 overtime per month per man, correct?

23 A

Yes, and I think I did indicate in my testimony this

24 morning that we had an expanding base. So, if we take the

25 1984 figure, and compare it to 1989 figure, we have a

Pauline A. Stipes Official Federal Reporter

.33

larger denominator.

Now, j,f the typical correctional officer works eight

hours overtime a month, he is working less than two hours a

week overtime/ is that correct?

5 A

If it works out that way, jthat would be correct.

6 Q

Surely you don't mean to suggest to the court that if

an officer were to work 42 hours rather than 40 hours in a

particular week that his ability to maintain his job at an

^appropriate level would be in any way seriously diminished?

10 A

Not at all. It is the double shifting that would be

11 a problem.

12 Q

Now, in respect to the graining procedures at Glades

13 Correctional, and for the training procedures for the

14 personnel, the correctional officers, staff at Glades

15 Correctional, do you have any firsthand knowledge of what

16 those training procedures are?

17 A

Only in the sense that the Community College is under

18 the Florida Department of Law Enforcement, provide a

19 curriculum for correctional officers. That standardized

20 curriculum would be standardized for any other institution.

21 Q

And .that provides for a certain number of hours for

22 initial training?

23 A

Yes.

24 Q

Do you know how many hours?

25 A

It has gone up recently. It is an impressive amount.

Pauline A. Stipes Official Federal Reporter

.34

I think

2Q

Is it over 500?

3A

It may be. It has been increasing.

4Q

An<31 in addition, there is a requirement for a

5 certain number of hours, each year, continuing education,

6 correct?

7A

That is correct.

8Q

Are you familiar with any of the curriculum in either

9 the basic program, or the continuing program?

10 A

Not in recent times, but I am aware of the curriculum

11 from times past, and it has a number of things ranging from

12 very applied things like marksmanship to human development,

13 human relations, that kind of thing.

14 Q

Are you familiar with the educational background of

15 the correctional officers at Glades Correctional

16 Institutiona?

17 A

No.

18 Q

Do you know how many of the officers have college

19 degrees?

20 A

No, I do not.

21 Q

How many have Associates Degrees?

22 A

I am not aware. I presume they all have high school

23 education, or higher. At least a high school.

24 Q

Now, you indicated that you thought that at least

25 drawn from your single source, which was inmate interviews,

Pauline A. Stipes Official Federal Reporter

135

~ I you identified it, that you~thought there was some~

2 indication that the staff occasionally engaged in horseplay

3 with the inmates?

4 A

That is .correct.

5 Q

And you suggested that this was due to what you

6 described as a shortage of disciplinary confinement. That

7 was your hypothesis?

8 A

If you put it that way, yes, tjhat is exactly.

9 Q

You drew that as a hypothesis without any direct

10 indication that that was, in fact, the case?

11 A

We11, except that the confinement areas do tend to be

12 extensively used. With that large a population, 1183, if

13 you have 10 disciplinary cells, seven that you can double

14 bunk, you are limited to that number. If you overflow PC

15 into AC, you are cutting down from administrative

16 confinement ability.

17 Q

Now, one of the items which was requested by you, and

18 which was delivered yesterday was the population sheet.

19 Have you had a chance to look at the population sheets?

20 A

If it was in yesterday's material, no.

21 Q

If those sheets showed that for the past four years

22 fche capacity for the various confinement areas, the

23 protective confinement, administrative confinement, and

24 disciplinary confinement seldom reach their ceiling, or

25 anywhere near their ceiling, would that have an impact upon

Pauline A. Stipes Official Federal Reporter

L36

"T your opinions?

2A

Not necessarily. Let me just say why. Let's forget

3 about Glades for a moment. Let's say we as a society now

4 have a problem with prison beds being at a premium because

5 of Drug Enforcement, drug abuse problem in the community.

6

If I took that class of offenses and said as some

7 people are espousing, we will handle this problem by making 8 drugs legal, or decriminalize drug use. We would free up

9 any number of cells that we have in the State of Florida as

10 well as most states in the union, federal system also.

11

If, however, the following year we decided that was

12 unwise, we were ruining peoples' lives who were being

13 subjected to a loss of morality, whatever is attendant to

14 drug use, we would completely overflow the prison system

15 once again.

16

By that analogy, what I am saying, if I have a class

17 Qf offense that I am tolerating now because I have limited

18 gonfinement space, even though I have a few spaces

19 available because of the frequency with which that offense

20 pccurs, I know I cannot control it by the use of prison

21 beds. I am not going to start locking people up for verbal

22 ^buse or insubordination simply because I know if I lock

23 this one up for that, I better take 10 more with him.

24

So, the fact there are four, five, there is always a

25 space available in DC. when I have got a fairly flagrantly

Pauline A. Stipes Official Federal Reporter

L37

1 violated rule does not rtiean that is the reason.

2 Q

It does not prove that that is a factor in causing

3 any type of such conduct?

4 A

That is correct.

5 Q

And in respect to the question of whether the staff

6 tolerates improper procedures, or improper conduct on the

7 part of the inmates or not/ you really need to look at a

8 broader set of statistics than the number of inmates placed

9 in the detention, correct?

10 A

Yes. I mean, I would agree with that. I am

11 searching for how one gets a better handle on this short of

12 moving into the institution.

13 Q

Such as a review of the disciplinary reports?

14 A 15 Q

Which I wanted. That is correct.
v
There are other forms of discipline in a correction

16 institution than confinement and the disciplinary

17 confinement, are there not?

18 A

One would hope so, yes.

19 Q

Loss of gain time?

20 A

Absolutely.

21 Q

That is a very powerful tool, is it not?

22 A

For most people. There are some exceptions we don't

23 need to go into, because they are exceptions to the Rule, I 24 agree with that.

25 Q

And you would agree, would you not, that for such

Pauline A. Stipes Official Federal Reporter

L38

1 forms of misconduct by the inmates as verbal disrespect

2 confinement, disciplinary confinement may be a rather

3 harsh, perhaps legally too harsh penalty?

4 A

It is difficult to know without understanding the

5 kind of verbal disregard you are talking about.

6 Q

You certainly wouldn't advocate on a wholesale sweep

7 that verbal disrespect by inmates be penalized by

8 confinement, disciplinary confinement?

9 A

No. It is probably more appropriate to talk about

10 the sentencing guidelines the State of Florida has. Each

11 time this offense is repeated, you gain points. After a

12 certain repetition of this offense, you can go into

13 confinement.

14

No, I would agree, you start off with a minor — if

15 it is verbal abuse, you have minor penalty. If that minor

16 penalty does not reduce the chronicity of that offense, you

17 have the recourse to the other. In terms of wholesale,

18 this is the universal solution, no.

19 Q

And as far as the toleration by the staff of

20 voluntary homosexual activities—

21

And, in fact, let me ask you if I can digress from

22 the question I was about to ask you a moment ago.

23

In reviewing the inmate interviews that you had,

24 would it be fair to say that the vast majority of those

25 inmates indicated that they had never witnessed or

Pauline A. Stipes Official Federal Reporter

.39

1 experienced any type of forcible sexual assault?

2 A

Vast majority?

3 Q

Yes, with the exception of three or four?

4 A

Did you say forcible?

5 Q

Yes.

6 A

Yes, that is correct.

7 Q

A number of them indicated they had observed

8 voluntary sexual activity of some sort or another, is that

9 correct?

10 A

Yes. One of the interesting things there is that it

11 is in sharp contrast to what we experienced and observed

12 and heard in 1984. There it was more likely than not

13 people had witnessed or knew about or had firsthand

14 knowledge, or had experienced forcible rape.

15

Today's situation is more likely that any one person

i

16 knows of voluntary consensual sexual activity, however

17 gotten there.

18 Q

And, again, if a review of the disciplinary records

19 indicated that on a number of occasions, perhaps as many as

20 20 in the course of the year, inmates received discipline,

21 and suffered loss of gain time or other penalties for

22 having been found engaged in consensual sexual activity,

23 if, for instance, a review of the disciplinary reports

24 indicated that on a number of occasions inmates received

25 disciplinary reports, and received loss of gain time or

Pauline A. Stipes Official Federal Reporter

.40

other penalties for having been caught engaged in

consensual sexual activities, that would indicate something less than wide toleration of that conduct on the compound,

would it not? Absolutely, and that is what I was looking for.
Failing to find it, and having inmates report that this behavior was common led to my conclusion.

Okay. You would, I assume, agree that an inmate who wants to engage in consensual homosexual activity with

10 another inmate will generally not do it in the middle of

11 the compound in full view of all the other prisoners and

12 the correctional staff?

13 A

In general, that is true.

14 Q

They would, as a general rule, if they were going to

15 participate in such conduct do it in some form of concealed

16 fashion in someplace where they might not be observed by

17 sitaff or other inmates?

18 A

Stands to reason. But you do understand what I was

19 referring to was a pattern in which inmates at night,

20 especially after the midnight hour would be engaged fairly

21 openly within the dormitory setting within their own or

22 someone else's bed. That was the concern I had.

23

Now, it may very well be there is a systematic

24 attempt to control that that wasn't available to me because

25 I didn't have the disciplinary reports to have shown that.

Pauline A. Stipes Official Federal Reporter

,41

1 II

"THE COURT: I didn't have what?

2

THE WITNESS: Disciplinary reports, one set of

3 documents I asked for that didn't come until late

4 yesterday.

5

THE COURT: Yes.

6 BY MR. DAVIS:

7 Q

And, essentially, what you had were anecdotal

8 comments by some of the inmate interviewees. Correct?

9 A

Anecdotal? I am not sure how you are using that

10 word. They were reporting being aware of it.

11 Q

In some fashion, either they heard about it, or

12 claimed to have observed it?

13 A

That is correct.

14 Q

That is what they were reporting could be firsthand

15 hearsay, secondhand hearsay, or direct knowledge?

16 A

I tend— In terms of hearsay, not firsthand, I

17 tgnded not to note that.

18 Q

Now, in respect to your category C, what was the

19 title which you gave that particular category, Doctor? I

20 have down here .failure to supervise, is that correct?

21 A

Yes.

22 Q

Now, you indicated that the view from the wicket was

23 significantly improved today?

24 A

That is correct.

25 Q

You indicated in some places the glass panes in the

Pauline A. Stipes Official Federal Reporter

142

1 shower areas tends to ¥ge~~with time. is that correct?

2 A

And grime.

3 Q

Not only that, but I think it was observable on one

4 of the instances where the video showed when showers have

5 recently taken place, water vapor covers those panes, does

6 it not?

7 A

There were certainly drops of water on the panes in

8 the videotape.

9 Q

What you call steam, as it were, using the term

10 loosely?

11 A

Yes. But one of the things — and I think I took the

12 time to point it out, there was an instance in which new

13 panes had come in, and you could see the contrast of what

14 had been virtually true the prior visit I had, the new

15 Ranes were in sharp contrast. You could see much better

16 through those than the ones that were opaque, as I

17 described it.

18 Q

Now, you indicated that you find that today the

19 patrol of the dorms is policy?

20 A

Yes, everything I have heard from staff, and

21 everything I have seen in documentation, there is a

22 patrolling officer, wicket officer, and a sergeant to check

23 on them. That seems to be the standard which I think I was

24 commending.

25 Q

In respect to the activities of the dormitory

Pauline A. Stipes Official Federal Reporter

.43

IT|| officers, in dormitorie¥^A, B " C , D, those dormitories are 2 broken up into two pairs, are they not? Each one under a

3 separate CO, or sergeant, supervisor, and each one

4 containing each pair broken up into, broken up under the

5 supervision of a CO, and each dormitory containing certain

6 staffing of certain hours?

7 A

That is correct.

8 Q

And night time hours, that staffing is a minimum of

9 t^wjp dormitory guards in each of the dorrn^ Vnri PR?

10 A

That is right.

11 Q

So that in two dormitories, you've got four guards

12 minimum, plus a sergeant who goes from one dorm to the

13 other, back and forth?

14 A

I believe that is correct. The point that I was

15 illustrating is that with the configuration of the dorms,

16 especially D dorm, on the main compound, with the exception

17 of E on the north compound, in order to provide adequate

18 control, you must have active patrolling officers to

19 supplement a passive observing wicket officer.

20 Q

In fact, you could have two patrolling officers, can

21 you not?

22 A

With a configuration of a separate T.V., card room,

23 the length of the dorm, the difficulty of the distance from

24 the wicket, that is exactly what should be ideal.

25 Q

It is not necessary, nor is it called for in the post

Pauline A. Stipes Official Federal Reporter

.44

1 [] orders, that one officer be in the wi^T<et at all times?

2 A

That's correct.

3 Q

In fact, the policy calls for both officers to patrol

4 \%hen it is not necessary for one of them, for one

5 particular reason or another to be in the wicket?

6 A

That is right. And I think that is, in fact,

7 necessary. My point is that not having that roving

8 aggressive patrol, creates a real distinct problem that I

9 think we saw in '84, and previous.

10

With the addition and policy of having the roving

11 officer with the single bunking, we have a much improved

12 situation.

13

My point is that given the nature of human frailty,

14 and given some reports from inmates that is inconsistent in

15 terms of the actual patrol being a patrol, one possibility

to guarantee or insure confidence in the roving patrol is

17 that watchman's check-in point.

18 Q

Another guarantee you got is there is a CO, a

19 sergeant, who is assigned to two of the dormitories, and

20 moves from one dorm to the other?

21 A 22

That is clearly the rational that the administration and I understand it, and I think it is a good idea.

23 Q

He i s going to be in one or the other of the dorms in

24 any given moment?

25 A

That's the nature of the policy, the reason for it.

Pauline A. Stipes Official Federal Reporter

T~ Q

And if a dormitory officer is not patrolling, he is

2 going to be found by that CO when he comes to that

3 dormitory?

4 A

That is reasonable.

5 Q

You would agree, would you not, that it would be

6 rather difficult for the dormitory officer in a particular

7 dorm not to patrol with the CO moving back one dormitory to

8 the other, and having only two dormitories to supervise?

9 A

yes, I see the logic to the whole plan.

10 Q

And there is another check on the dormitory officers

11 patrolling the dormitories, is there not?

12 A 13 Q

I am not s u r e — There is a dormitory log, is there not?

14 A

There is supposed to be an hourly count in which they

15 log the count, yes.

16 Q

The hourly count is .a count which is called in to the

17 central security, is it not?

18 A 19 Q

Yes. And it is also recorded on the dormitory log?

20 A 21 Q_

That is correct. There is also required to be an intermediate entry on

22 the dormitory log for each half hour increment inbetween,

23 is there not?

24 A

I am not aware of the half hour increment.

25 Q

And there is also to be entry in every dormitory log

Pauline A. Stipes Official Federal Reporter

.46

1 of anything unusual or usual if~it~ThvbTves inmate movement

2 in or out of the dormitory?

3 A

Yes, that is fine, and that is true. My difficulty

4 with logs, and hourly counts, and half hour entries is

5 there is no assurance, if I were a dorm officer, and for

6 whatever set of reasons motivated me that night, rather

7 than walking down, I am fairly positive nobody left because

8 there I am in the wicket locked in, they can't move out of

9 that dormitory without me being aware of it. Why go down

10 and count?

11

I am just trying to say, how does one get over the

12 ability of a negligent staff member to enter a log without

13 going through the proper form to fill that log?

14 Q

If you were to have a negligent staff officer, he

15 might walk down, push a button on your clock, and walk

16 back, would he not, rather than patrol?

17 A

But one would assume even that cavalier officer would

18 hear or see something being forced to go down to the end

19 that he might not otherwise see even if he weren't actively

20 searching.

21 Q

Ajid would you have him do that on a set time basis?

22 A

No. That would have to be the creative part pf t-hat-.

23 If the inmates perceive a routine, you became predictable.

24 and you do your activity in the space a i i n w H

25

One prison which I won't name has a policy before

Pauline A. Stipes Official Federal Reporter

.47

1 breakfast, they would pull dorm officers out in the 2 corridor in order to have a flow, lo and behold, rapes

3 occur at that time. When you are pulling back patrols, the

4 inmates, as you pointed out, will figure out, that is the

5 time to conduct this activity.

6

go the rules would have to be, you have to go down in

7 an intermittent, variable time so that one hour is twice,

8 aJid the other hour is once. You would have to randomize

9 the patrol.

10 Q

You would agree, would you not, that if there is a

11 supervising officer who has only two dormitories to

12 supervise, and who will be in one dorm or the other at any

13 given time, that that in itself provides a rather full

14 check on whether an officer is going to be patrolling or

15 not?

16 A

Oh, I understand, and as I said, I tried to commend

17 both the policy and the post. The only thing I have seen

18 that could be added to what is done is this time clock.

19

THE COURT: Mr. Davis, try to find a convenient

20 place to stop, or short recess.

21

MR. DAVIS: I am at the end of C, Your Honor,

22 this would be convenient.

23

THE COURT: All right. We will be in recess

24 for 10 minutes.

25

You are excused.

Pauline A. Stipes Official Federal Reporter

148

1

(Thereupon, a" short recess was taken.)

2

THE COURT: Okay, Mr. Davis.

3 BY MR. DAVIS:

4 Q

Doctor, during the break, I was going through the

5 notes which you generated from your interviews?

6 A

Yes.

7 Q

Do you have those notes with you?

8 A

I think I do.

9

THE COURT: Interviews of inmates, or staff.

10

MR. DAVIS: These are the inmate interviews

11 that have been discussed before.

12 BY MR. DAVIS:

13 Q

Looking at these not from the truth of what the

14 inmate has asserted here, but merely from the standpoint

15 that you did of detecting any patterns, in respect to the

16 prevalence of contraband on the compound, since I have

17 gotten through the first 25, let's briefly go through

18 these.

19

Inmate number one indicated to you, did he not, that

20 there was dope and alcohol here, same as any piarpr dope 21 was also in county jail?

22 A

That is correct.

23 Q

There was nothing in that relation that indicated any

24 degree of prevalence, was there?

25 A

Just that it is there.

Pauline A. Stipes Official Federal Reporter

L49

1 Q

I found nothing on number two. On number three, the

2 ^nmate indicated that when guards find alcohol, they take

3 it out and give the inmate a DRR, and he has seen a guy

4 busted for drugs?

5 A

That is number three, yes.

6 Q

Number four, the inmate indicated that drugs and

7 alcohol were not as free as used to be. Tjiey closed down a

8 J.ot of it, but it is still available if you have money,

9 drugs and alcohol are much tighter now, is that correct?

10 A

They've closed down a lot of it, but it is still

11 available if you have money, that is right. You

12 understand, my observation was the availability of

13 contraband has been reduced from four years ago.

14 Q

That is correct. His comparison is a temporal

15 comparison at the same institution, and contrast it with

16 others comparing it with others from the other institution?

17 A

Yes, he has been there over five and a half years.

18 Q

Inmate number five says, initially, drugs were much

19 better controlled at GCI than they were on the streets,

20 correct?

21 A

Drugs are probably better controlled than on the

22 streets?

23 Q

Right. Later he says there is still a problem, not

24 as loose as it was, but buck is still there, and plentiful,

25 crack?

Pauline A. Stipes Official Federal Reporter

150

1 A

That is right. This is also — this is a person who

2 has been at GCI for an amount of time, too. He does, if

3 you take this in general talk about improvements over his

4 tenure at the institution.

5 Q

There seems to be some apparent inconsistency, on the

6 one hand indicating better control than on the streets, on

7 the other hand indicating that there is still availability?

8 A

And the guards tolerate dope.

9 Q

And then ryumber six indicated that drugs and alcohol

10 were easy to get?

11 A

karge amount getting in. That is right.

12 Q

Number seven, indicated that drugs were available and

13 rampant?

14 A

grison worse drugs is available. Rampant. Drugs

15 everywhere, guards ask that you don't do it in front of

16 them.

17 Q

Number eight said drugs and alcohol, while available,

18 w>ere not as bad as expected of a prison?

19 A

Yes, he has been there less than a month on main —

20 he has been there less than fmir months, and it is hard to

21 know what his frame of reference is. He doesn't have a

22 previous prison background. He, therefore, has got

23 whatever you have by incidental learning what you see on

24 the T.V., so forth.

25 Q

Number nine did not give a comparison, but indicated

Pauline A. Stipes Official Federal Reporter

1 there was one dorm in which wine could be found?

2 A Yes.

3 Q

Number 11, the first one to indicate anything about

4 .weapons says that he has seen one knife on the compound.
5 He has been there six months, but he has seen a lot of iron

6 laying around, is that correct?

7 A

Yes, and he also says he knows there is marijuana on

8 the compound.

9 Q

He knows it is on the compound, but gives no

10 indication of how prevalent?

11 A

That is correct.

12 Q

Number 12 indicates a lot of dope comes over the

13 fence, but gives no other indication about prevalence?

14 A

Drugs, you can get anything you want, you can get

15 from visitors, and inmate traffic. That is 12 on mine.

16 Q Yes.

17 A

The violence is not as much as it used to be, but

18 sjtill robbery, and drinking, people make a lot of money

19 from selling buck.

20 Q

13 is no indication of the prevalence of drugs?

21 A

He is attributing fights that he has seen four times

22 pjrobably over sex or drugs. That is an indirect reference.

23 Q

He says probably, indicating an assumption on his

24 part not based on any knowledge?

25 A

That is hard to tell.

Pauline A. Stipes Official Federal Reporter

152

1 Q

He wouldn't use the terra probably if he knew?

2 A

Well, to me I would infer that sex or drugs are the

3 issue for which a fight may occur.

4 Q

Number 14 indicated this camp previously had a crack

5 cocaine problem. They are trying to contain grass, buck,

6 ajid gambling?

7 A

Correct.

8 Q

Weapons about the same at GCI than any prison?

9 A

Yes, I see it, yes, correct.

10 Q tyumber 15, has seen plenty of crack and marijuana,

11 only seen one weapon in the dorm, been there six months?

12 A

This is a fairly long one.

13 Q

Second page near the bottom, I believe?

14 A

Yes, he has seen plenty of crack, marijuana, smokes

15 pot when he needs to get high.

16 Q

Number 16, plenty of buck, and drugs getting in all

17 different ways?

18 A

Yes.

19 Q

TJiere is all sorts of tools that can be used for

20 weapons, but he doesn't indicate whether he has observed

21 any actual weapons, does he?

22 A

That is correct.

23 Q

Number 17, inmate has been there for one month, and

24 not seen any weapons at GCI, second paragraph from the

25 bottom. Is that correct?

Pauline A. Stipes Official Federal Reporter

A X-gs- he has heard drugs are available, yes

2Q

But not seen any, apparently, correct?

3A

^

4Q

dumber 18, buck, he says, is easy to get. He has

5 seen a few shanks and lead pipes. Is that correct?

6A

He has heard drugs are coming in through the front

7 gate. He tries to stay away from buck, he is an alcoholic.

8Q

Number 19, hasn't seen any weapons yet. He has seen

9 some buck in his dorm?

10 A

And gambling.

11 Q

Gambling?

12

Number 20, says he has seen plenty of weapons, and

13 that drugs and buck were available about the same as any

14 prison, correct?

15 A

And the metal detector does not work, that is

16 correct.

17 Q

I saw nothing on 21,nothing on 21?

18 A

21, drugs are adequate here, especially crack

19 cocaine.

20 Q

22, indicates there are plenty of drugs. He knows

21 inmates — that some inmates have weapons, but he does not

22 have a weapon?

23 A

Plenty of drugs, crack, pot, buck is predominant, and

24 the weapons, yes.

25 Q

23 has seen a couple weapons,, a couple

Pauline A. Stipes Official Federal Reporter

.54

1 and he has seen crack"T~qrass, coke, and LSD?

2 A

I{ot sure how drugs gets in, but thinks from the

3 visitors, outside people.

4 Q

24 said that there is homemade weapons there, and

5 drugs are available, reefer, crack, homemade wine?

6 A

Correct.

7 Q

And then 25, he has heard individuals who pass drugs

8 in the park, and then brought into the compound. He has

9 seen one knife, one shank, and he has heard about a gun,

10 correct?

11 A

Is this 25?

12 Q

25.

13 A

He has seen drugs and offered drugs at GCI, crack,

14 coke, grass, officers do tolerate drugs just to keep the

15 inmates happy. Drugs come in through visitors' park,

16 individuals pass drugs through the park, and the drugs are

17 brought into the compound.

18 Q

Of those inmates —

19 A

One more thing, the inmates here only smoke

20 marijuana.

21 Q

Of those inmates, the vast majority had never seen a

22 weapon on the compound?

23 A

I was paying more attention hn t-ho H m g pat-t-om O n

24 this go through.

25 Q

And very few have seen more than one or two weapons

Pauline A. Stipes Official Federal Reporter

L55

"T on the compound, correct?

2 A

I am just not sure, I was tracking the drug theme at

3 this time.

4 Q

And a number of those who indicated some degree of

5 comparison, in fact, a majority who indicated a degree of

6 qomparison of drugs between institutions indicated it was

7 about the same at GCI as other institutions, only one or 8 two indicated it was worse at GCI than other institutions

9 in respect to the drugs and marijuana?

10 A

What I would say is, and how it is characterized is

11 that drugs are available on compound. I think that is how

12 I characterized my comment in testimony.

13 Q

So, actually from the inmate interviews, there really

14 is not a clear pattern that indicates any greater degree of

15 prevalence of drugs at GCI than at what one would

16 anticipate the typical prison to have?

17 A

That is a very hard judgment call to make.

18 Q

Certainly ij respect to weapons, there is very little

19 indicating from those inmates, only one or two indicated

20 that weapons were prevalent. Those who had seen weapons,

21 the few who had seen weapons indicated one on or two or

22 three weapons on the compound, and the majority have never

23 seen any weapons on the compound, though some had heard of

24 weapons, correct?

25 A

What I would again say, my conclusion is — I am

Pauline A. Stipes Official Federal Reporter

1 sorry, weapons, weapons are, in~Fact, available. And that

2 weapons, and the same on drugs, are reduced in availability

3 from four years ago,

4

My recommendation how to further ameliorate this

5 problem, I don't think any administrator wants drugs,

6 alcohol, and weapons on his compound.

7 Q

Though none has ever devised a method of removing

8 them completely?

9 A

You simply have to try and invent new ways of

10 controlling it.

11 Q

In respect to D_, which was inmate movement controls—

12 A

We are completed with these?

13 Q

Yes. On inmate movement controls?

14 A

Yes.

15 Q

You indicated that you felt there was some problem

16 with inmates moving from the north compound to the main

17 compound, is that correct?

18 A

I noted concern. Given your lower custody inmates,

19 shorter term inmates on the north compound, having to come

20 into the main compound longer term, higher custody risk

21 inmates, yes.

22 Q

All right. Now, we are talking about custody here,

23 are we not?

24 A

Yes.

25 Q

That is, the north compound has medium custody, and

Pauline A. Stipes Official Federal Reporter

157

1 minimum custody inmates?

2 A

That is porrect.

3 Q

The main compound has close custody, medium custody,

4 and even medium custody inmates?

5 A

That is correct.

6 Q

When we talk about custody, we are not talking about

7 the potential for violence of an inmate, are we, per his

8 custody classification?

9 A

You are talking about security risk. Custody largely

10 depends on escape potential. One of the factors that

11 contributes heavily to one's custody is the length of time

12 served. It is a very sensible notion. If you have six

13 months to serve, you are less likely to try to escape and

14 incur a 15 year penalty than if you had 40 years to serve.

15 Q

We are not talking about, and I am sure you didn't

16 intend to give any impression that the inmates in the north

17 compound are segregated from the inmates in the main

18 compound because they happen to be inmates that have

19 determined to be less prone to violence than the inmates on

20 the main compound?

21 A

May elaborate a little bit?

22 Q

Sure.

23 A

I tend to sound like a professor at times, sorry. My

24 rule of thumb as a psychologist, if you are dealing with

25 human behavior, and you want to control that behaviorf the

Pauline A. Stipes Official Federal Reporter

L58

T best situation you can be in to manage the behavior is the
2 person you want to manage has a great deal to lose.

3

The worst situation is to get somebody down to the

4 point where they have very little to lose. A person who

5 has a significant amount of time yet to serve, or is under

6 a minimum mandatory sentence, or is by the nature of the

7 sentence ineligible for gain time, administrative release

8 time, those people have relatively little to lose.

9

It may not be the most magnanimous judge of human

10 nature, but people who don't have things to lose tend to

11 behalf in a self-serving way, perhaps malicious way. By

12 definition I am saying people on main compound tend to be

13 those people who with very, very long sentences, they tend

14 to be people who have less to lose.

15

The person who has six months or less than a year to

16 serve, especially under an incentive system operating in

17 the State of Florida with incentive gain time, he needs to

18 keep is nose clean. He could lose his gain time; and gain

19 time, administrative gain time is very significant at this

20 point.

21

So, I am just saying that having those two

22 populations side by side, you will in fact reduce

23 possibility of the people who have incentive to behave, and

24 reduce the probability for those people to be victimized.

25

It would seem to me prudent management to try and

Pauline A. Stipes Official Federal Reporter

.59

X T segregate them. You "are"cbTrect in that the population in

2 main compound includes minimum, medium, and maximum,

3 howev^L, thfi close custody—change terminology—close 4 custody p<ar'P-ie» as I understand it, are not eligible to

5 main compound.

6

I think that is very wise — north compound, I think

7 you have a quieter north compound for that reason. I

8 believe that is why. J am saying further wisdom if it can

9 be done is to keep it so they don't have to come into main

10 compound.

11 Q

To clarify your answer, you did not mean that there

12 are any maximum security prisoners at Glades Correctional?

13 A

I misspoke, close custody.

14 Q

And you did not mean that the prisoners with close

15 custody — I am sorry, the prisoner is limited to minimum

16 and medium security are in the main compound?

17 A

Main—

18 Q

Those — the compound for which there is that

19 limitation is the north compound, while the main compound

20 has all three?

21 A

If I misspoke, I am sorry, main compound includes, as

22 I understand policy all three custody levels, close custody

23 is restricted off of north compound.

24 Q

Now, the prisoners who have close custody are by no

25 means only those prisoners who have long terms, are they?

Pauline A. Stipes Official Federal Reporter

160

~1 A

NCK

2 Q

For instance, if you were to be incarcerated at GCI,

3 and you had just arrived in the Florida prison system, you

4 had just been convicted and sent to prison, you would be a

5 close custody prisoner even if you had a one year sentence,

6 would you not?

7 A

To determine base line behavior, yes, that is

8 correct•

9 Q

And there is a period of time before you are eligible

10 for a consideration of your classification?

11 A

That is correct.

12 Q

If you are there on a five year sentence, again, you

13 may be in close custody even though your sentence is not

14 very long?

15 A

Correct.

16 Q

There really is not a precise comparison between the

17 likelihood of violence by prisoners under close custody,

18 that is, violence committed by one prisoner against

19 another, and the custody that he has, is there?

20 A

I believe you include a category of people in close

21 custody for which that would be expected behavior. The

22 probability of violence increases. It is a category that

23 includes those people, frut because you are in that category

24 doesn't mean you are necessarily one of those. To that, we

25 agree.

Pauline A. Stipes Official Federal Reporter

161

1 Q

And you may have prisoners that are in the medium

2 custody or even minimum custody who may commit violent acts

3 toward other prisoners?

4 A

Oh, sure.

5 Q

And j.t is not uncommon for prisoners who are medium

6 security to be reclassified as close custody, and those who

7 are classified as minimum to be classified as medium or

8 close custody subsequently, is there?

9 A

That is true.

10 Q

So, custody is a classification which may go up or

11 down on a prisoner, is that correct?

12 A

That is correct.

13 Q

Based on a number of factors which classification

14 officer takes into account, not only the length of the

15 sentence, but the number — the period of time which he has

16 been a prisoner, the likelihood that he may present an

17 escape potential, for instance, concern with what may be

18 going on with his family in the outside world is a

19 consideration that may cause an inmate to be classified up

20 from medium security to close custody?

21 A

That is correct.

22 Q

Did you in any of the inmate interviews find any

23 indication that inmates that were moving from the north

24 compound were being assaulted or subject to assault by

25 ;Lnmates in the main compound?

Pauline A. Stipes Official Federal Reporter

L62

~A

Assaulted, I didn't see a predominance of that. What

2 I was picking up on was more pressure.

3

THE COURT: Mr. Davis, we are going to have to

4 recess at 5. We are almost there.

5

MR. DAVIS: I am finished with D, Your Honor.

6 May I ask a few questions on E? I think we can cover that.

7 There was very little of substance on E.

8

THE COURT: All right.

9 BY MR. DAVIS:

10 Q

Your recommendation on E was that the classification

11 staff conduct interviews with incoming inmates to determine

12 if they belonged at GCI, is that correct?

13 A

That is correct.

14 Q

Are you aware of the new inmate interview policy at

15 GCI?

16 A

I am aware of an orientation policy. I am not sure

17 if that is what you are talking about.

18 Q

And that orientation policy consists of interviews

19 with the classification department, specific classification

20 officer, with the psychology department, and various other

21 department or organization representatives, does it not?

22 A

I don't know. This, I am unaware of. \f that is

23 occurring, that is along the lines I recommend.

24 Q

Okay.

25

MR. DAVIS: No further questions on that point,

Pauline A. Stipes Official Federal Reporter

.63

1 II Your Honor.

2

THE COURT: All right. How much more do you

3 have in terms of cross-examination on Mr. Swanson?

4

MR. DAVIS: F and G, and general questions,

5 probably an hour.

6

THE COURT: All right. We will be in recess

7 until 9 A.M. tomorrow morning. Come back at that time, and

8 we will move right ahead with the remainder of that

9 evidence. Thank you, we will see you in the morning.

10

Good night.

11

(Thereupon, a recess was taken at 5:00 p.m.)

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

TRANSCRIPTS OF DECEMBER 1985 HEARING

VOLUME WITNESS

D

C

RD

RC

R8

R9

Swanson

3

RIO

Swanson

95

Rll

Swanson

176

R12

Swanson

264

R13

Swanson

348

409

41

R14

Durrance

436

507

532

Saunders

532

580

R15

Saunders

612

Epprecht

625

647

S.Saunders

657

679

Bronson

687

R16

Bronson

Harper

Cobb

Zatler

Aldred

Brown

707

715

731

748

764

770

784

799

802

820

835

R17

Johnson

Gordon

Pryor

LaMarca

881

884

895

917

928

946

978

997

R18

Brown

Pryor

Johnson

T

1043 1066

1010

TRANSCRIPTS OF DECEMBER 1985 HEARING

VOLUME WITNESS

D

C

RD

RC

R8

R9

Swanson

3

RIO

Swanson

95

Rll

Swanson

176

R12

Swanson

264

R13

Swanson

348

409

41

R14

Durranee

436

507

532

Saunders

532

580

R15

Saunders

612

Epprecht

625

647

S.Saunders

657

679

Bronson

687

R16

Bronson

Harper

Cobb

Zatler

Aldred

Brown

707

715

731

748

764

770

784

799

802

820

835

R17

Johnson

Gordon

Pryor

LaMarca

881

884

895

917

928

946

978

997

R18

Brown

Pryor

Johnson

1043 1066

1010

1

 
 LaMarca v. Turner

" V* WH W

» •• • • • •

PC-FL-007-031

.64

X

UNITED STATES DISTRICT COURT

FOR THE

2

SOUTHERN DISTRICT OF FLORIDA

3

5 ANTHONY LaMARCA, et al. ,

6

Plaintiffs,

7 VS.

8 CHESTER LAMBDIN, et cetera., Defendant.
9

Case No.82-8196 Civ- PAINE

10

West Palm Beach, Florida

11

January 9, 1990

12

9:00 a.m.

13 APPEARANCES:

14

DAVID MICHAEL LIPMAN and WILLIAM ROBERT AMLONG,

ESQS., on behalf of the Plaintiffs.

15

MICHAEL B. DAVIS and WALTER M. MEGINNISS,

16

ESQS., on behalf of the Defendants.

17

18

19

The above-styled case came on for Trial before

the Hon. James C. Paine, U.S. District Court, at the U.S.

20 Federal Courthouse, West Palm Beach, Florida, on the 9th

day of January, 1990.

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

165

T~H

INDEX"

2

3

WITNESS

DIRECT

CROSS REDIRECT RECROSS

4 RICHARD SWANSON 3 3

96

229

5 JORGE MEDINA

238

241

247

6 GARY LANE

248

254

261

7 MARK WHITE

265

281

ARNOLD DENNIS 288

297

JOHN HAVEARD

300

310

10 DAVID MARSH

313

324

332

11 GEORGE JONAS

3 32

347

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

166

1

THE COURT: All right. Continuation of Dr,

2 Swanson, on cross-examination, please.

3

MR. DAVIS: Thank you, Your Honor.

4

CROSS-EXAMINATION

5 BY MR. DAVIS:

6 Q

Dr. Swanson, in the interim between your

7 cross-examination yesterday, and this morning, have you had

8 a chance to review any other items?

9 A

yes, I've spent a fair amount of time reviewing the

10 disciplinary reports that we were provided late Sunday.

11 Q

All right. And have you reviewed all of the

12 disciplinary reports?

13 A

I reviewed 737. The disciplinary reports that I had

14 covered parts of December '88, and then through November

15 '89. I estimate that covered — what I had a chance to

16 cover, 737 DR's, that those 737 covered an eight month

17 period in 1989.

18 Q

All right. And did you arrive at any conclusions

19 based on that?

20 A

Yes, I found that the DR's were a significant

21 corroborating factor in some of the points that I had made

22 in my other testimony. I would also say that in overall

23 judgment, I found more corroboration than anything else

24 from that review.

25 Q

All right. Now, what did you find that corroborated

Pauline A. Stipes Official Federal Reporter

.67 1 II your views in the reports?

2 A

Just a moment, I have to return t o —

3 Q

And let me ask you, did you yourself read the

4 reports, or did someone else read the reports, and provide

5 you with summaries,?

6 A

I read a small sample of those reports to get a feel

7 for what the content was, and what the format of the

8 reports were.

9 Q

And what was that small sample number that you read?

10 A

15, 20. My point — the reason I did that was to

11 develop a categorization system whereby I could

12 characterize the nature of the reports. What I developed

13 was a six category scheme in which six overall categories

l^ in which I was interested in determining the number of drug

15 and alcohol PR's, the number of sexually related offense

16 DR/s, the disrespect of an officer, verbal abuse of an

17 officer by an inmate.

18

The number of PR's that were weapons related. Number

19 of PR's that were assault, either inmate on inmate, or

20 inmate on a staff, and residual category of other that

21 included such infractions as possession of currency,

22 unauthorized area, obscene act, theft, violating visiting

23 regulations.

24

Within each of my overall six categories, I had

25 subcategor\esf in terms of drug alcohol related.

Pauline A. Stipes Official Federal Reporter

1.68

1

Just to give you an example, I broke it down into two

2 overall subcategories, one involving drugs, alcohol, in 3 which confiscation contraband, drug or alcohol was

4 involved, and the other part of that in which drugs or 5 alcohol was involved in which there was no confiscation,

6 that kind of offense was typically inebriation being high.

7

In each of the ultimate breakdown was a disposition

8 of the disciplinary report, disciplinary infraction, and l_,

9 therefore, coded the number of infractions that resulted in

10 confinement. What other penalty there was which was 11 generally predominantly loss of gain time, and the number 12 of infractions in which the case was dismissed. So, by 13 doing this, I was hoping to characterize not only on those

14 six categories, but the response of the institutional

15 authority to these infractions. I have that broken down.

16

All of this is over an eight month period involving

17 737, I would have done them all, but I finally gave up

18 getting through them at two in the morning.

19 Q

And who was it that actually reviewed the 723 that

20 you didn't review?

21 A

No, I am sorry. I was involved in the review process

22 from beginning to end. Once the category system was

23 developed, my assistant, one of the attorneys in the case,

24 I taught this system to, and we together in the same room

25 went through these. If there was any question as to

Pauline A. Stipes Official Federal Reporter

169

categorization, I was there to determine the resolution.

2Q

All right.

3A

And I can't be precise, but I would say I, myself,

4 was involved in about a third of the 737 categorizations.

5Q

All right. And what did you determine on your review

6 of the disciplinary reports?

7A

Of the 737 cases reviewed, 122 were drug and alcohol

8 related. 88 of those or 16 and a half percent of all of

9 these cases were, in fact, drug and alcohol related. 88 of

10 them involved actual confiscation of drug or alcohol

11 contraband, or 12 percent. 4.6 percent of these cases 12 involve no confiscation, which would be inebriation, or

13 being high on a substance.

14

You want me to take them one at a time?

15 Q

Yes.

16 A

My conclusion here, and based on the content of these

17 drug cases is that drugs are, in fact, quite predominant,

18 quite available. We had confiscations of four and five

19 pounds of marijuana. We had confiscations of not only

20 cocaine, crack cocaine, crack paraphernalia, all of these

21 substances were tested, and positive for crack cocaine or

22 marijuana, and we had up to 16 gallons of buck single

23 event.

24

We are talking about buck in such large quantities to

25 say that this is happening does indicate there is a fair

Pauline A. Stipes Official Federal Reporter

J.70

1 amount of availability.

2

I took that as corroborating the information I had

3 from inmates, t-hat-f in fart, drugs and alcohol are a 4 significant problem on compound. The response of the

5 institution to these drugs was such that it does seem that

6 there is some complacency, especially in regard to

7 marijuana.

8

By that I mean, let me take a specific example, an

9 inmate may be caught with and in possession of marijuana

10 fairly sizable quantity, in the same confiscation may have

11 a list of names and dollar amounts by those names in which

12 the inmate will admit this involves people that owe him

13 money for the sale of drugs, and he may get a disposition

14 by the — by this process of two months, three months, loss

15 of gain time.

16

Now, to try and put that in prospective, an inmate

17 who goes through the cafeteria line and gets a complete

18 meal, and then tries to sneak back in to get an additional

19 pork chop may get 30 days loss of gain time.

20

In that contrast, I think you get an illustration at

21 least to me that the gravity of this offense of trafficking

22 in drugs which is, in fact, the charge is in the same

23 neighborhood which he does not get disciplinary

24 confinement, is not taken off compound, the drugs are

25 confiscated, if there are dollars involved, dollars

Pauline A. Stipes Official Federal Reporter

171 1 confiscated, and his gain time is taken away.

2

You contrast this, and forgive him for the nature of

3 this particular offense, someone who is in the exercise

4 yard, he is accused of and found guilty of masterbatinq in

5 the direction of a tower in which a female officer is

6 housed. This person may get 30 to 90 days, disciplinary

7 confinement, accompanying loss of gain time.

8

Now, that is clearly seen as a major infraction.

9 because I see the combination of disciplinary confinement

10 up to 90 days, could result in loss of gain time as a

11 reaction fairly severe, showing the graph — perceived

12 gravity of that offense, and yet trafficking doesn't get

13 disciplinary confinement.

14 Q

Are you suggesting there is no instances of

15 disciplinary confinement for trafficking in drugs?

16 A

Not at all, there are some.

17 Q

Are you suggesting there is more than one instance

18 when there were lists of customers found on the — in the

19 possession of alleged drug dealers?

20 A

Qnly one specific comes to mind.

21 Q

So when you use the plural to suggest that that was a

22 customary situation that drug dealers were found with such

23 lists, you were incorrect, there is just one instance where

24 that occurred?

25 A

No. When I use the plural, there are a number of

Pauline A. Stipes Official Federal Reporter

172

1 repetitions of people being apprehended with drugs, those

2 drugs were tested positive, they were larger amounts than

3 one would have simply for personal use, in which there

4 could be simply loss of gain time, although, let me make

5 sure that I am not misrepresenting.

6

There are those times in which crack cocaine is

7 involved in which there is both loss of gain time, and

8 disciplinary confinement. Let me also talk about what I

9 didn't code as drug related. There are other instances in

10 which an inmate will be found throwing over $81 and

11 some-odd sense in a envelope across the fence. My

12 inference is that the reason dollars are being thrown over

13 the fence so there later will be drugs thrown back in

14 return.

15

The consequence of that activity is loss of the

16 dollars, or contribution of those dollars to something

17 called inmate welfare.

18

And so, I do see a pattern that comes together as a

19 fabric in that there is a lot of dealing, there is a lot of

20 activity in terms of throwing the things over the fence

21 which at least in my mind indicates a way that drugs are,

22 in fact, being brought in. It also indicates the problems

23 pf having currency on the compound because it facilitates

24 the dealing of drugs.

25 Q

How many times did you find reports of currency being

Pauline A. Stipes Official Federal Reporter

X73

thrown over the fence?

2A

Let me just answer that a little different way.

3Q

Please answer that question. How many times did you

4 find instances of currency being thrown over the fence?

5A

The only one with the $81 that come to mind is the

6 one.

7Q

That is the only occasion those disciplinary reports

8 where you found occasion of currency being thrown over the

9 fence?

10 A

To my knowledge, yes.

11 Q

That doesn't seem to be a wide spread problem if it

12 is detected once in a year?

13 A

It is part of a pattern in which there is other

14 indications of currency connected with trafficking.

15 Q

Indication of currency trafficking from outside

16 sources?

17 A

I am assuming that drugs are always getting in from

18 outside sources.

19 Q

That is true. There is no information other than

20 t^hat that you have as to the manner in which they are being

21 paid for, is there?

22 A

That is correct.

23 Q

For instance, it can be paid for by a relative of the

24 inmate who is on the outside?

25 A

That's correct.

Pauline A. Stipes Official Federal Reporter

174

1 Q

And, as a matter of fact, you had occasion to review

2 the special search reports previously?

3 A

Yes.

4 Q

,A number of occasions showed up where visitors were

5 bringing in money for the inmates. Correct?

6 A

Correct.

7 Q

Money which was in amounts that was illegal?

8 A 9 Q

Rightt In excess of $30.00?

10 A

And always procedures which were illegal.

11 Q

And also bringing in drugs, correct?

12 A

Correct.

13 Q

You will agree, will you not, that the fact that

14 there were this number of disciplinary reports and

15 disciplinary actions taken in respect to drugs indicates

16 that the staff does, in fact, attempt to seek out—does, in

17 fact, seek out a substantial amount of drug and alcohol

18 presence on the compound, and does punish them?

19 A

Yes, 12 percent of the 737 dispairing reports involve

20 confiscation of drugst.

21 Q

And you also noted, did you not, in reviewing at

22 least one third of the reports that you did review there

23 were a number of occasions where it was not easy to

24 establish possession? There was some question of

25 possession?

Pauline A. Stipes Official Federal Reporter

175

1 A

That's correct. To give you an idea of the 88 cases

2 .involving confiscation, 7 were dismissed.

3 Q

And there were occasions where because there was some

4 ambiguity in possession, the sentence might be lower?

5 A

Or dismissed, that is correct.

6 Q

What else did you discover in respect to —

7 A

The second category was sexually related offenses

8 between inmates.

9 Q

Let's go back to the first category, which is drugs

10 and alcohol.

11 A

Fine.

12 Q

Pid you notice any procedure that existed on the

13 compound to determine inmate influence, drug influence?

14 A

You mean under the influence?

15 Q

Yes.

16 A

Yes. In terms of alcohol, I consider substance abuse

17 as a category. The inmates are tested for level of

18 inebriation.

19 Q

A breathalizer type test device is used, correct?

20 A

That is correct.

21 Q

All right. Going on to your second category?

22 A

I might just say giving you more detail in the

23 alcohol, there are 34 cases in which there is no

24 confiscation. The far overwhelming majority of that was

25 under the influence.

Pauline A. Stipes Official Federal Reporter

.76

1 II Q

Were inmates detected to be possibly under the"

2 influence, were tested, and found to be positively under

3 .the influence, and, therefore, received disciplinary

4 reports?

5 A

That is correct. The second category, going on,

6 involves sexually related offenses between inmates. Here I

7 had two categories, consensual, fp_r_c_ible, or sexual 8 assault.

9

We only found three episodes of that in the eight

10 month period, involving, obviously, two people each, or

11 .maybe not so obviously, in which all of these people

12 received loss of gain time.

13 Q

And which months were those?

14 A

I don't have them categorized by months. There were

15 no reports at least within the 737 reports examined

16 involving sexual assault or rape. One might say that this

17 on the face of it contradicts the inmate reports we have in

18 which there is fairly overt sexual behavior.

19

But my conclusion, if you recall, was that there was

20 a fair amount of overt sexual behavior that was seemingly

21 tolerated by the staff.

22

So, I take this in part, perhaps in whole, suggestive

23 of cooperation between the inmate reports, and the staff

24 that this overt sexuality is simply not seen as that big of

25 a problem.

Pauline A. Stipes Official Federal Reporter

177

I~~ Q

If the number of reports for that year was

2 substantially greater than the three that you have, was, in

3 fact, more than 10, that would be a substantial difference

4 in magnitude, would it not?

5 A

More than 10. Jf you look at the base line, 1183

6 | inmates behaving 24 hours a day, 7 days a week, 10 reports

7 on that base line would not be , I think , a high numbe r.

8Q

Perhaps indi eating that there is not , thereby, a

9 level of observable homosexual conduct, correct?

10 A

That is the alternative interpretation, yes.

11 Q

Based on the evidence you got, ypu really canft

12 determine which is correct, can you?

13 A

No. Except what my conclusion is based on experience

14 in this area.

15 Q

And what experience is that?

16 A

In terms of having been through a number of

17 institutions addressing these kinds of issues with the

18 staff, and the kind of fiscal plan by which Glades

19 Correctional is forced to operate, open dormitory housing,

20 it strikes me that we are having much more of this behavior

21 than would be accounted for by disciplinary reports.

22 Q

you mean you would assume that there would be more

23 such behaviQK?

24 A

I am assuming that if. in fact, there were not some

25 sort of tolerance of this, we would see more PR's.

Pauline A. Stipes Official Federal Reporter

178

T~\ Q

What other institutions are you familiar with that

2 you use as your base line for judging this point?

3 A

There would be a number of institutions, both jails

4 and prisons. Florida State Prison being one.

5

That is significantly different. As you already

6 pointed out earlier, the housing configuration is quite in

7 contrast to that of Glades. Alachua County Jail, Union

8 Correctional Institution being another. Several

9 institutions in Canyon City, Colorado being another. San

10 Quentin, California being another.

11 Q

All right. And how many disciplinary reports weye

12 written over a one year period of time at Florida State

13 prison for consensual sexual activities between inmates?

14 A

I don't have that information.

15 Q

How many were written over one year period at Alachua

16 County Jail?

17 A

Well, JLf you take the period of 1976. none.

18 Q

How many at Union?

19 A

I don't know.

20 Q

And how many in the various institutions in Colorado?

21 A

I don't have that in my head.

22 Q

How many at San Ouentin?

23 A

I don't have that in my head.

24 Q

So you really don't know whether the number of

25 disciplinary reports found at Glades Correctional

Pauline A. Stipes Official Federal Reporter

.79

Institution over a period of one year is reflective of~eT

2 high level of discipline proceedings for this particular

3 type of conduct or not, do you?

4A

I am saying with sole, open dormitory housing, with

5 the inmate reports that I have, with the history that we

6 are aware of from this involvement in LaMarca, this seems

7 to be a low number.

8Q

You agreed yesterday, did you not, that when inmates

9 desire to participate in consensual sexual activities with

10 one another, they don't do it in the mid day Sunday in the

11 middle of the quadrangle, correct?

12 A

That is correct.

13 Q

They do it where they think that they will not be

14 detected, correct?

15 A

That is correct. If you recall, looking through the

16 inmate interviews, we have reports that this is occurring

17 in the dormitories late at night, early in the morning.

18 Q

Surely, and it is something which can take place in a

19 matter of a couple of minutes, correct?

20 A

I presume.

21 Q

And if it is consensual, there is not necessarily any

22 noise that will be attracting any guard's attention, is

23 there?

24 A

That is possible.

25 Q

And so. consensual sexual activity because of the

Pauline A. Stipes Official Federal Reporter

180

1 brevity of time span involved and the nature of the act

2 itself will often go undetected, correct?

3 A

I would agree.

4 Q

Do you have any evidence that indicates that there

5 was a significant number of detected incidents of

6 homosexual conduct which was not disciplined?

7 A

Well, if you compare the incident reports that we

8 examined, no.

9 Q

And in addition to the reports involving homosexual

10 activity there were also reports involving other types of

11 sexual activity by the prisoners, correct?

12 A

I am sorry, you would have t o —

13 Q

There were other types of sexual activities, single

14 individual actions, mostly involving masterbation, and sex

15 with female visitors?

16 A

Yes.

17 Q

gex also with male visitors?

18 A

I did not see those in the ones I reviewed.

19 Q

Did you arrive at any other conclusions based on

20 that?

21 A

Moving onto the next category is disrespect of_an

22 officer, insubordination, those kind of disrespect

23 activities. We had 169 cases. What I would say, that is

24 23 percent of the 737 cases. 17 and a half percent of

25 those resulted in what I call other dispositions which

Pauline A. Stipes Official Federal Reporter

L81 ~~T tends tn hp vpry high anH overwhelmingly loss of gain time.

2 27 of these, or 3.6 percent involve actual confinement for

3 disrespect of an officer. 13 were dismissed.

4

What I would say is there is. correct my observation

5 from yesterday, that there is certainly efforts on the part

6 of the staff there to punish disrespect toward an officer.

7 There does not seem to be simply a tolerance of verbal

8 disrespect. There is action taken. This is somewhat

9 surprising that people are losing gain time, and still

10 involving themselves in disrespect of an officer.

11 Q

And receiving confinement?

12 A

There is in some of the loss of gain times, 30, 60,

13 90 days.

14 Q

you have, Doctor, had occasion, either connected with

15 this case or on other occasions to review inmate files,

16 have you not?

17 A

Ye_s_.

18 Q

And, in those files —

19 A

We really haven't done it in this case.

20 Q

At the present time; but you did previously, did you

21 not?

22 A

Yes.

23 Q

And in those inmate files, there are contained PR's,

24 are there not?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

182

1 Q

And the overwhelming number of DRfs that one

2 typically finds in files are verbal disrespect PR's?

3 A

Yes.

4 Q

£t is probably the most common PR occurrence

5 throughout the prison system?

6 A

Let me say it is not uncommon, certainly.

7 Q

Okay.

8 A

I am just trying to modify my conclusion.

9 Q

I understand.

10 A

This is an added element that I think was helpful,

11 and so I have done that.

12 Q

All right. Any other —

13

THE COURT: Pr. Swanson, let me ask you this,

14 going back to sexually related category for a moment. I

15 must have missed it. I don't recall whether you said how

16 many of the 737 PR's that were examined were sexually

17 related offenses?

18

THE WITNESS: There was only six. That

19 involved three separate occasions. Those separate

20 occasions were consensual. There were no disciplinary

21 reports concerning forcible or sexual assault.

22

THE COURT: I see, thank you.

23

THE WITNESS: That reflects point eight of one

24 percent of the 737 cases.

25

THE COURT: Excuse me, go ahead.

Pauline A. Stipes Official Federal Reporter

183
~~ir\ BY MR. DAVIS:

2 Q

Did you have any other observations on that?

3 A

On this area, no, except that there is a fair amount

4 of verbal abuse. There clearly is a fair amount of staff

5 reaction to that abuse in the form of penalties,

6 disciplinary reaction. The next category in my system is

7 weapons related offenses., and let me just be clear on this.

8

I did something that might not ordinarily be done.

9 In weapons related offenses, I included assaults. I was

10 concerned in trying to be sensitive to the availability of

11 weapons, and the use of those weapons, so I separated out

12 from an assaults' category those involving the use of

13 weapons. In the eight month period, or 737 cases. I had 28

14 weapons related cases, or 3.8 percent. 22 of those, or 3

15 percent involved confiscation of one kind or another. 10

16 of the 22 confiscation episodes received confinement.

17 Seven other, which would be in an overwhelming majority of

18 cases, loss of gain time, five were dismissed. There were

19 six cases in which no weapon was confiscated. An

20 altercation may have been perceived by the time officers

21 were able to apprehend the person. The weapon was not to

22 he found. Four of those received confinement. Two were

2 3 di smi ssed.

24

In a situation such as Glades or any other

25 institution as we talked about yesterday, in general, there

Pauline A. Stipes Official Federal Reporter

.84

is — it is not a surprise, and it is not totally

unexpected that weapons will be available, homemade

weapons, other kinds of weapons, things will be made use of

as weapons. To only have 3.8 percent, or some raw total of

737 events weapons related does question how vigilent the

staff are trying to apprehend and take these weapons.

7

I would say this is corroborative of my assertion

8 that more effort should be expended to confiscate these

9 weapons. It adds weight to my recommendation that overall

10 systematic shakedowns of the entire facility should be

11 attempted.

12 Q

Now, you are comparing the total number of weapons'

13 related DRfs to the total number of PR's at the

14 institution, correct?

15 A

Yes, for a particular period of time.

16 Q

Yes, yon are comparing apples to oranges when you say

17 there is only three point so percent of total DR's related

18 to weapons possession?

19 A

I am not sure I am following the point.

20 Q

All right. To determine whether a certain percentage

21 of the total DR's relating to weapons possession is high or

22 low. I assume you would like to see it higher than the

23 three percent. You would need to know what the total

24 number of DR's at the institution are compared to another

25 institution, for instance.

Pauline A. Stipes Official Federal Reporter

185

1

^n give yon an example f fjnme of these categories for

2 PR's may be high in nsrhain areas compared to other

3 institutions, therefore, giving a higher number of PR's,

4 correct?

5 A

Yes. I am following your point. I guess my point is

6 part of my rational is to determine how the staff is

7 expending its time and using its penalty resources to

8 modify behavior in an institution, that is why using this,

9 relatively speaking, this category did this, and this seems

10 to be getting more attention, and the gravity is we get a

11 higher penalty on this case than another kind of case, that

12 is the rational I am following.

13 Q

It is obvious high penalties are delivered in the

14 cases involving weapon possession, correct?

15 A

Three percent of our cases involve confiscation of

16 weapons. Of that — well, three percent there, 10 of the

17 22 cases receiving confinement. So 1.3 or about half of

18 the dispositions are confinement.

19

I would say, yes, when weapons are found and

20 confiscated that is seen as a major infraction.

21 Q

Now, when you talk about the amount of time that is

22 being expended, the ratio of actual PR's given for weapons

23 possession to total PR's hardly indicates the amount of

24 staff time spent searching, does it?

25 A

One assumes the one more searches, the more objects

Pauline A. Stipes Official Federal Reporter

186

~~I wJ.J.1 hP fnnnri.

2 Q

Okay. How much staff search time is required to

3 determine whether an inmate is guilty of verbal abuse?

4 A

Not a great deal.

5 Q

Two seconds, the time it takes to make the verbal

6 statement, correct?

7 A

Correct. Much more is involved, because this is an

8 elaborate process. Once a charge is made, then it is

9 investigated, then a review team, then the recommendation

10 .is madef and the superintendent approves. It is formidable 11 to imagine the intracacies of this process.

12 Q

That is true. Once it has been determined that

13 violation of a crime has been committed, it requires very

14 little time —

15 A

I agree with that point.

16 Q

And that constitutes well over 100 of the DR's,

17 correct?

18 A

Yes.

19 Q

So, it is not accurate, is it to compare the number

20 of DR's devoted to weapons possession with the total number

21 of DR's to say that this indicates the amount of staff time

22 spent trying to detect weapons, does it?

23 A

Well, let me be more specific in terms of cases that

24 comes to mind. Some of these involved cases in which

25 inmates were fighting, and a knife was used. The staff

Pauline A. Stipes Official Federal Reporter

.87

3T1] p e r c e i v e d the"Ti"qfi"t^~"saw t h e ~ k n i f e . ~0tner"s,~an~in"inate

2 would be reaching up over a beam in D dorm. Officer sees

3 him put something down, and investigates, and finds he put

4 a shank under his pillow.

5

The number of these 28 cases involving weapons are

6 the same caliber of apprehension happening as well as the

7 verbal disrespect.

8 Q find gome involve search of the inmates' property?

9 A

I am not disagreeing with your point in comparing the

10 two. You will have every case of verbal abuse, which is

11 going to be readily apparent, so to speak, in the face of

12 the officer, whereas a fair amount of diligence in some of

13 these cases, but not all, some of these cases, and I would

14 say a significant number of them are of the same magnitude

15 in terms of requiring the time to apprehend that this

16 offense is occurring.

17 Q

Now, we spoke yesterday about the general pattern of

18 inmate behavior in respect to the possession and control of

19 weapons at an institution similar to GCI, correct?

20 A

Yes.

21 Q

And during a large part, certainly during the day

22 time, and sometimes during the night time, those weapons

23 are not on the inmates possession, correct?

24 A

.Yes. I think what we said is, they are generally

25 nearby.

Pauline A. Stipes Official Federal Reporter

1 Q

They are secreted someplace?

2 A

Yes.

3 Q

When those weapons are searched out and discovered,

4 you don't expect to see a PR, do you, unless there has been

5 some indication that can attach a particular inmate to that

6 weapon?

7 A

That is correct.

8 Q

So that a majority, you would expect a majority of

9 the weapons that are discovered upon searches at an

10 institution to be ones where that weapon is not connected

11 to a specific inmate, and, therefore, a PR does not follow?

12 A

That is correct. For a PR, you have to have an

13 inmate name. You have to have someone to charge, so to

14 speak.

15 Q

If you are trying to assess the amount of time that

16 the staff spends in searching for weapons, determininq the

17 number of PR's is hardly relevant, is it?

18 A

That is true, but you understand we've already

19 searched and talked about incident reports in which would

20 be the alternative vehicle for writing up.

21 Q

Okay.

22 A

So a weapon that is found with no one to charge/ and

23 I have acknowledged that there have been dormitory

24 shakedowns, there have been small unit shakedowns, and

25 those are productive, don't misunderstand. I think that is

Pauline A. Stipes Official Federal Reporter

189

1 apprnpri at-P, rnmmpndahl P actionr and those are resulting in

2 weapon confiscations.

3 Q

That is true. Now, weapons actually serve a two

4 edged purpose in a prison environment. Do they not?

5 A

Tell me the two efforts.

6 Q

One is offensive, an inmate may seek to use a weapon

7 offensively against another inmate?

8 A

That is correct.

9 Q

To commit a crime against him, and they also serve a

10 defensive purpose?

11 A

No question about that.

12 Q

Many inmates at institutions, and it is a behavioral

13 pattern nptQd at virtually all institutions, is it not;,

14 .that inmates often secure weapons so that they will have

15 some means of self defense?

16 A

That is correct, and, typically, what I say rule of

17 thumb is that the tougher the institution, the more likely

18 that attitude will be shared by the majority of the people.

19 Q

And, so. ironically, the removal of weapons from a

20 compound may actually make some inmates at least perceive

21 themselves to be more vulnerable?

22 A

No question about that, but the truth of the matter

23 is, if you could eliminate those weapons, the need for

24 defensive aspect would also be greatly ameliorated.

25 Q

True, assuming physical characteristics are equal

Pauline A. Stipes Official Federal Reporter

L90

1 among all inmate^,?

2 A

That is why I say ameliorated. Weapons are used to

3 fend off gang rapes, or multiple attacks.

4 Q

Or larger inmates?

5 A

Correct. I don't think you are trying to condone

6 that weapons should be made available so inmates could

7 defend themselves. That is the proper role of correctional

8 officers.

9 Q

Surely, but it does illustrate that the removal of

10 weapons from an institution is not necessarily altogether a

11 positive step at protecting inmates from violence?

12 A

You may be asking the wrong question. I am not an

13 advocate of open sale of handguns in the community.

14 Q

No, but the knowledge that some inmates have that

15 another inmate has a weapon may deter that inmate who is a

16 potential aggressor from an aggressive act?

17 A

The research, and social psychology suggests the

18 presence of weapon in a situation much increase the

19 violence of that situation. Simply the presence of a

20 weapon, even with college students increases probability of

21 violent reaction, rather than talking one's way out of a

22 reaction. I strongly disagree as a psychologist.

23 Q

How successful is talking one's way out of a

24 situation found to be in studies of prison sexual violence?

25 A

I suspect that it is not one hundred percent by any

Pauline A. Stipes Official Federal Reporter

191

1 means.

2 Q

Are you aware of Lockwood Studies?

3 A

No.

4 Q

Are you aware of the studies done by Notchi in the

5 Federal Court system in the District of Columbia?

6 A

No.

7 Q

Are you aware of Davis' studies of the Philadelphia

8 Prison System?

9 A

Tell me something about that. Give me the gist.

10 Q

Study of 60,000 inmates, and determining the number

11 of sexual assaults occurring in the Philadelphia Prison

12 System in the 1960's?

13 A

I am not aware of that.

14 Q

Classic study on prison sexual violence?

15 A

No, I am not aware of that.

16 Q

What else did you derive from your review of the

17 DR's?

18 A

Remind me, what is the last one I gave you?

19 Q

Weapons?

20 A

The next category is assault here, fighting, battery,

21 physical assaults; two categories, inmate on inmate, inmate

22 on staff. There were 95 incidents of assault, or 95 PR's

23 concerning assault. 83 of those were inmate on inmate.

24 disciplinary reports, 12 percent inmate on staff.

25

I am not sure I have anything particularly remarkable

Pauline A. Stipes Official Federal Reporter

L92

O \o^ conclude from this figure except that it is predictable, 2 and certainly should not be otherwise that the number of

3 assaults are much higher for inmates on staff. It is a

4 very critical thing that you have inmates that in any way

5 assault a staff. There were 12 of those. 9 of those 6 received confinement. That seems to be appropriate. 66

7 percent of inmate assaults on staff resulted in lock down.

8

1,8 of the 83 inmate on inmate fightings resulted in

9 confinement. I don't see anything particularly remarkable

10 about this, except fighting occurs in an institution and ——————
11 seems to be penalized.

12 Q

And the incident of such events is rather typical,

13 and about average for an institution, is it not?

14 A

12.8 percent assaults, fighting, 1.6 percent inmate

15 on staff. You have to make a judgment call on this, but,

16 as I say, I see nothing remarkable about this particular

17 figure.

18 Q

In fact, GCI ranges towards the low/middle of prisons

19 in the State of Florida in inmate on inmate assaults, and

20 inmate on staff assaults?

21 A

Based on this figure, I am sure that is a correct

22 statement,

23 Q

Did you conclude anything else on your review?

24 A

The last category, the sixth category is my last

25 category. It is other, and really residual category,

Pauline A. Stipes Official Federal Reporter

193

1 possession of currency, unauthorized area, theft, violation

2 of visiting regulations.

3

There was a significant number, I can't tell you what

4 porportion, the way I coded this, possession of currency.

5 There were 317 others. Of those, 39 received confinement.

6 247 other disposition which in the main part was loss of

7 gain time with a possession of currency, a typical penalty

8 is the donation of that currency to the inmate welfare

9 fund, so that is a more predominant other response in this

10 case. 31 of these were dismissed.

11

Because I have it as a residual category, it is

12 fairly high, except for the possession of currency, and I

13 should say that currency becomes elicit or becomes

14 contraband when it is over a $5.00 denomination, and if it

15 is over a certain amount, I believe $30.00 is a cap, that

16 an inmate should have at any one time. We have people that

17 have $20 bills, $10 bills. We have people who have $80,

18 $100, and the excess is confiscated in that case. To be

19 more precise, donated to the inmate welfare fund.

20

Those are my only observations in this particular

21 category.

22 Q

The last point illustrates, does it not, that even if

23 you were to make a category such as currency contraband, it

24 still will get into the compound, will it not?

25 A

It—

Pauline A. Stipes Official Federal Reporter

J.94

~~T Q

I am speaking of the $20 denominations, $10

2 denominations, denominations that are not legitimately

3 within the compound?

4 A

It is easier to cope with enforcement if it is simply

5 illicit. There is no question that contraband, in general,

6 if you are going to compare drugs to buck, to currency,

7 currency would be the easier of those kinds of contraband

8 to smuggle in, to have in.

9 Q

Just as easy to smuggle in as would various types of

10 narcotics, and drugs, such as marijuana?

11 A

I think that — You might want to argue is a small

12 amount of cocaine easier to get in than currency? Currency

13 is relatively easy, I am trying to say.

14 Q

Surely, the point being, Doctor, even if you were to

15 in some way eliminate all currency as a legitimate

16 possession within the compound, in order to try to reduce

17 the commerce in drug trafficking, if drugs can get in so

18 can the currency necessary to purchase them?

19 A

I guess the answer is yes, but I think it is critical

20 t;o respond that as a philosophy of management of the

21 correction system, the challenge is to be constantly

22 yigilent, and constantly fresh, and fight off the tendency

23 to becoming jaded, and complaisant.

24

And to say that drugs are going to be getting in, if

25 these things are going to be getting in, it is like saying

Pauline A. Stipes Official Federal Reporter

.95

1 we have to legalize drugs because we can't stop them.

2

I worry about that, surely you are correct in saying

3 we have very highly motivated population of people who have

4 a great deal of time to design strategies to overcome your

5 policies. That doesn't suggest to me that we ought to

6 tolerate it. It doesn't suggest to me that we, say, well,

7 we have to expect a certain percentage of this, so it is

8 coming in this way. Let's don't try and combat it.

9Q

There is. however, legitimate, and well founded

10 positionf is there not, that currency possession by inmates 11 is not something to be barred in prisons. That is, in

12 fact, the predominant philosophy?

13 A

,If you are speaking nomitively, yes, there is more in

14 institutions, prison nature. That is reversed when you

15 move to detention, jail, or local facilities. They tend to

16 not as a rule, the majority, nomitive case in a local jail

17 facility is reversed.

18

In your instance, yes, it is true, it is simply

19 easier. You have to set up another set of bureaucracy to

20 create a script, and control inmate accounts, and always

21 issue script out of that account, no question, and you are

22 right, the norm is currency, yes.

23 Q

Now, we left off yesterday — Incidentally, did you

24 have occasion to review anything else before you came in 25 today?

Pauline A. Stipes Official Federal Reporter

196

1 A

No. This took a fair amount of time.

2 Q ffie left off yesterday with your category F — I have

3 category F, you used numbers, you use numbers, protective

4 confinement. that -is number 6?

5 A

Yes.

6 Q

You indicated that your review of the records at GCI,

7 which is—and I noted down—I think, were three dates, show

8 that the overwhelminq majority of inmates in protective
i
9 confinement were white, correct?

10 A

Yes. I used October, October '89, November '89,

11 | December f89.

12 Q

Are you aware of the literature on protective

13 confinement conditions generally in this country?

14 A

I think I understand them.

15 Q

%n fact, is i t- nnt- almost universally the case tfyat

16 the overwhelminq majority of inmates in a protective

17 confinement facility in a prison are white?,

18 A

I would think that's true.

19 Q

That is, in fact, the general situation in prisons in

20 this country, correct?

21 A

In general, and I think probably especially in the

22 south.

23 Q

Particularly in prisons where there — where a

24 percentage of the inmates are drawn from the urban

25 population, correct?

Pauline A. Stipes Official Federal Reporter

1 A"

But that is every institution.

2 Q

Well, unless you are in Montana?

3 A

Okay.

4 Q

So there is really nothing remarkable about GCI that

5 a large number of the inmates, or large percentage of the

6 inmates in protective confinement are white. That is, in

7 factf typical?

8 A

It is not unusual.

9 Q

And did you have occasion in preparing to — for your

10 testimony to review the inmate population sheets for the

11 period from 1986 through the present?

12 A

.No. As a matter of fact, I wasn't interested in

13 that. The one way I could get ahold of it is through some

14 of the other reports. 1986 special report tracks the

15 breakdown, ethnic breakdown, of the Department of

16 Correction and Glades through '86.

17 Q

Okay.

18 A

But I had difficulty tracking exactly what I wanted

19 on that.

20 Q

Okay.

21 A

I might say, comment, if I may, that I included these

22 demographics simply to parallel what was found and reported

23 in the court decision on LaMarca. I was pulling out the

24 current situation to contrast to court findings, and the

25 decision of the case.

Pauline A. Stipes Official Federal Reporter

.98

1 II Q

Let me show you what we have marked ^Defendants' Ex.

2 22--

3

MR. DAVIS: and I am sorry, Your Honor, what is

4 the procedure you would like in offering these? Do they

5 need to be presented to the clerk?

6

THE COURT: Yes, I need them to be presented to

7 the clerk to have the stickers.

8

MR. DAVIS: We have marked it with our own

9 sticker.

10

THE COURT: That is okay. Defendants' No. 22,

11 marked for identification.

12 BY MR. DAVIS:

13 Q

Let me show you 22. Does that appear to be the

14 inmate count sheet for the years '86 through '89?

15 A

The first one is February 1, '86, the last one,

16 December 1. '89.

17 Q

All right. Those are inmate count sheets of every

18 other month from that time period, correct?

19 A

I —

20 Q

February, April, June —

21 A

Yes, that is the case.

22 Q

There are all together, approximately, 25 or so

23 inmate count sheets?

24 A

I would say, yes.

25 Q

And, passing the February count sheet, because that

Pauline A. Stipes Official Federal Reporter

1 does not have a breakdown of race on protective 2 confinement, does it?

3 A

Yes. On April it does have a racial breakdown.

4 Q

April does, February does not, correct?

5 A

That is correct.

6 Q

In April the breakdown is four white, one black,

7 correct?

8 A

In protective custody, that is correct.

9 Q

That is 80 percent, 20 percent, correct?

10 A

Yes.

11 j Q

Turn to June. Is that 13 and 2, 13 white, 2 black?

12 A

Yes, it is.

13 Q

86 percent, 13 percent?

14 A

Yes.

15 Q

Turn to August. Is that 7 white, 6 black?

16 A

Yes.

17 Q

54 percent white, 46 percent black?

18 A

Yes.

19 Q

October, is that 9. 1. and 1?

20 A

Yes. 9 white, 1 black, 1 other.

21 Q

82 percent, 9 percent, and 9 percent?

22 A

I take your word for it.

23 Q

December, is that 11, 1, and 1?

24 A

11 white. 1 black, and 1 other.

25 Q

So there is no mistake, the figures we are giving, in

Pauline A. Stipes Official Federal Reporter

500

fact, are figures for the date on which the sheet was

issued, correct?

A

Typically looks like the first of each month.

Q

All right.

A

Yes.

Q

And February 1, f 8 7 , was that 16 and two?

A

Yes.

8 Q

For 88 percent, and 12 percent?

9 A

That is correct.

10 Q

April 1st, 12 and 3?

11 A

12 whites, 3 blacks, yes.

12 Q

80 percent, and 20 percent. June 1st, 14, 4, and

13 one?

14 A

14 white, 4 black, one other.

15 Q

74 percent white, 21 percent black, five other?

16 A

pkay.

17 Q

August 1st, is that nine and two?

18 A

Nine white, two blacks, yes.

19 Q

8.2 percent, and 18 percent?

20 A 21 Q

YesOctober, 11, one, and three?

22 A

11 white, one black, three other.

23 Q

Or 73 percent white, six black, 21 percent other?

24 A

Yes.

25 Q

And December—

Pauline A. Stipes Official Federal Reporter

201 _ ____

Q

15, four, and one?

A

Correct.

Q

Or 75 percent white. 20 percent black, five percent

other?

A

Ye_s.

7 Q

And '(88, February 1st?

8 A

Yes.

9 Q

Eight, two, and one?

10 A

Yes.

11 Q

Or 73 percent white, 18 percent black, 9 percent

12 other?

13 A

Yes.

14 Q

April, is that six white, four black, and three

15 o_ther?

16 A

Yes, it is.

17 Q

Or 46 percent white, 31 percent black, and 33 percent

18 other?

19 A

Yes.

20 Q

June, what is the count in June?

21 A

Two white, five black, one other.

22 Q

Or 25 percent white, 63 percent black, and 12 percent

23 other?

24 A

Yjes.

25 Q

August, is that two white, and one black?

Pauline A. Stipes Official Federal Reporter

202

2 Q

For protective confinement, or 66 percent white, and

3 33 percent black, or 66 percent white, and 33 percent

4 black?

5 A

That is what it is.

6 Q

And October 1, is that 11. and two?^

7 A

Xes, it is.

8 Q

85 percent, and 15 percent?

9 A

Yes.

10 Q

And December 1st, is that 11, and one?

11 A

Yes, 11 white, one black.

12 Q

Or %1 percent, and 9 percent?

13 A

Yes.

14 Q

Like you, Doctor, I also went to bed last night, and

15 so I didn't calculate my percentages after that time. In

16 the year 1989. what is the breakdown?

17 A

February 1st, protective custody, 11 white, one

18 black, one other. Apri1 '89, 10 white, two black, no 19 otJher. June f89, 13 white, two black. August '89, 9

20 whitef one black. October '89, 17 white, one black, one 21 other. December 1st, 1989, 11 white, two black, and one

22 other.

23 Q

Okay. Those percentages range from about 25 percent

24 whjte to about 90 percent white, is that correct?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

203

1 Q

Typically, falling in the 75 to 80 percent rang¥?

2 A

The general conclusion, always majority white ip

3 protective custody. I think there is one exception.

4 Q

Jwo exceptions, are there not, April 1st, and August

5 1, '88?

6 A

One of them being more like 50/50.

7 Q

46 percent?

8 A

Yess.

9 Q

And that is not atypical of protective confinement

10 populations generally in the country, is it?

11 A

That is consistent with my experience.

12 Q

And that is consistent with the various studies of

13 protective confinement populations over the last 10 years?

14 A

Right.

15 Q

So that based on protective confinement population,

16 there is nothing atypical about the situation at Glades

17 Correctional Institution compared to prison facilities in

18 the country generally, is there, in that respect?

19 A

Well, wiiat one might say one of the reasons for

20 checking inf asking for protective confinement, and

21 typically there are fears of sexual assault, fears of

22 assaults connected with having a bad debt, fears of

23 \nability to pay for a gambling debt.

24 Q

Tht^fie are the fears generally expressed in protective

25 confinement facilities throughout the country?

Pauline A. Stipes Official Federal Reporter

204

1 A

I would think that is right. What one looks at,

2 rather t h a n — I think the question to ask is, how many

3 people are seeking confinement?

4 Q

Are you aware of the studies of number of inmates in

5 protective confinement in facilities around the country?

6 A

Not specifically, no.

7 Q

Are you aware, for instance, of the studies showing

8 that as high as 30 percent or more of the inmates in some

9 New York State institutions are in protective confinement?

10 A

As institutions are getting crowded, let's say

11 increasing numbers are going to protective confinement. I

12 think that is a correct guage.

13 Q

And GCI, actually, the percentage is very low, is it

14 not?

15 A

I think that is right. And I think one can look at

16 what I think is a correct policy of transferring people out

17 that are unable to take population, and so we have limited

18 space here, but we have a fairly aggressive transfer out

19 policy.

20 Q

Even if you take the total number of inmates seeking

21 protective confinement, the number is rather low at Glades

22 correctional, is it not?

23 A

I think so, and again, there is this policy,

24 appropriate policy of transferring people out who are

25 ^asking for protective confinement, and willing to return to

Pauline A. Stipes Official Federal Reporter

205 1 population.

2 Q

In respect to inmate assailants, are you aware of any

3 of the sociological studies done on prison sexual violence

4 and the aggressor?

5 A

X have read some, yes.

6 Q

And aggressors in prison situations typically come

7 from a particular cultural subject group, do they not?

8 A

Probably.

9 Q

And study after study of that situation throughout

10 the country shows uniformly that the cultural subject group

11 is one composed of young, usually urban, black males,

12 correct ?

13 A

I think that is true, you depend on the reason, you

14 .can also add gang membership especially in the West,

15 California.

16 Q

And as a result of that, and, furthermore,.that

17 particular subject group forms a significant, though

18 perhaps not by any means a majority, but a significant

19 portion of the black inmate population, does it not?

20 A

Yes.

21 Q

Obviously, if you wanted to withdraw an element that

22 would be likely to contain the typical aggressor in a,

23 prison situation, you would withdraw that particular

24 cultural subject group from a prison, would you not?

25 A

I certainly understand the rational, yes.

Pauline A. Stipes Official Federal Reporter

206

1 Q

And vet that cannot be done, can it, because to do so"

2 would result in racial imbalance in the prison systems

3 because of the numbers involved?

4 A

Yes. The breakdown of — typically 51, 49, if that

5 is what you mean.

6 Q

And a significant portion of that 51, as you

7 indicated, or slightly more than 51 today would be members

8 of this particular cultural subject group, would they not?

9 A

I would say 80 percent, plus, of the inmates coming

10 in through the Department of Corrections, State of Florida,

11 goming from the urban areas.

12 Q

And cpnsist of the young male?

13 A

Absolutely. The figure as to who is likely to come

14 in is overwhelmingly between the ages of 16 and 28. Once

15 you get over 30, the probability of going to prison comes

16 down.

17 Q

Surely. And so. when you discuss taking steps in

18 regard to classification to eliminate potential aggressors

19 from a prison system, you really are severely handicapped,

20 are you not, because the element that you would want to

21 remove under that theory would result in an illegal racial

22 balance in the prison system, would it not?

23 A

Let me respond. The answer is yes, but respond to

24 the underlying assumption that I have. One is that Glades

25 is unique in the system in that its only means of housing.

Pauline A. Stipes Official Federal Reporter

>07 1 II ^except for a very limited confinement area is open 2 dormitory.

3

Two, what I am talking about in terms of

4 classification, and negative transfers are both ends of the 5 distribution.

6

Yes, I am concerned for the aggressive, not concerned

7 for, but concerned about the very aggressive predator

8 inmate. I am very concerned about the weak emotionally

9 unstable developmentally disabled small, frail, inmate.

10

Now, I certainly agree that if we took all of the

11 predators o u t — We simply don't have the luxury of taking

12 all the predators out. What I am saying is, we ought to

13 taJce those that are especially predatory out. We ought to

14 take those that are especially vulnerable out.

15

I am trying to say take out both ends of the

16 continuum. I am saying that this institution is unique in

17 t^he system because it has such limited confinement space

18 and all of the traditional space is open dormitory. It is

19 really the most difficult, unless you have short term

20 minimum custody inmates, most difficult to manage.

21 Q

In respect to the inmate group that you've identified

22 as the weak, frail, vulnerable inmate, did you in the last

23 episode of this case notice whether the group from which

24 the plaintiffs were drawn appeared to be a group of small,

25 frail inmates?

Pauline A. Stipes Official Federal Reporter

208

1 A

You are talking about four years ago?

2 Q

Yes.

3 A

No. In fact, one of the things that impressed me is

4 that I was seeing a group of victims that I ordinarily

5 wouldn't expect.

6 Q

And yon have had occasion to review the sexual

7 assault reports in investigations that were done since

8 1986, have you not?

9 A

Yes. These institutional reports?

10 Q

Yes. And certainly a number of those, whether

11 putting aside the question of whether the report is a valid

12 one or not, ft number of those inmates certainly do not fall

13 in that category, do they?

14 A

It is hard to make paper come alive, but my inference

15 from what I read of his is consistent with that statement.

16 Q

In fact, there were several instances of black

17 inmates claiming to have been victims of sexual assaults

18 reflected in those investigations, correct?

19 A

Not many, but there were some, yes.

20 Q

So that the typical profile of the young, frail.

21 white inmate doesn't necessarily apply to all of the ones

22 who at least made claims?

23 A

No, and I didn't mean to say so. It is just that

24 those are the ones that we can anticipate and act in a

25 preventive or proactive way-

Pauline A. Stipes Official Federal Reporter

>09

1 II Q

Now, you made a remark in passing about — Let me

2 divert from this for a moment, because a thought occurred

3 to me last night, and I may forget it again.

4

Going back to the videotape that you showed

5 yesterday, do you recall that?

6 A

Yes, I do.

7 Q

One of the scenes that was fast forwarded, and,

8 therefore, which we did not hear the dialogue on was a

9 panning view of the exercise yard outside of E and F

10 dormitories, was it not?

11 A

I recall that.

12 Q

And my recollection is that your comment on the tape,

13 and this is my recollection of your comment itself, and not

14 what was heard on the tape since we did not hear that

15 portion of the tape, but it is in the record, was that you

16 saw a deficiency in respect to the security observation at

17 that point of the fenced perimeter because there was no

18 watch tower there. Do you recall that?

19 A

Yes, I do.

20 Q

You have learned since that time that there is, in

21 f,act, a watch station there during the day time, and two

22 watch stations there at night time, did you not?

23 A

Yes, in discussing with Superintendent Lambdin,

24 talking about the existence of a perimeter patrol, or

25 stationary post.

Pauline A. Stipes Official Federal Reporter

1 Q

There were, in fact, two stationery posts on the

2 fence perimeter in the nighttime, and one in the daytime?

3 A

I believe that is correct.

4 Q

Officers with walkie-talkies or radios to communicate

5 with officers on the tours?

6 A

That is right.

7 Q

All right.

8 A

I just want to say it is my way of pointing out as

9 analogous to having blind spots within a dormitory, you

10 have blind spots on your patrol, your perimeter, if you

11 don't have watch tours to cover it.

12

My point, if you don't have that, that one can do it,

13 just has to do it with the introduction of personnel.

14 Q

Now, going back to the discussion on protective

15 confinement, you made a mention yesterday that there was

16 showering allowed of inmates in protective confinement

17 three times a week, is that correct?

18 A

Yes, that seems to be the Department of Correction

19 standard, and it is also what the inmates report.

20 Q

That is a state-wide standard?

21 A

Yes.

22 Q

In addition to being able to shower three times a

23 yeek. the inmates have in their cells a sink and basinf is

24 that correct?

25 A

A basin and toilet,

Pauline A. Stipes Official Federal Reporter

hi

1 Q

Which they can use for purpose of personal hygiene^?

2 A

%es.

3 Q

Now, you noted that some inmates remained in PC for

4 over a month, protective confinement?

5 A

gorrect.

6 Q

Some remain in protective confinement for only a fey

7 days?

8 A

Also correct.

9 Q

Some because they are transferred out, and others

10 because they leave on their own free will?

11 A

That is correct,

12 Q

Particularly, those who are in because of debts owed

13 to other inmates, when the money comes in the mail, they

14 then can leave?

15 A

It is hard to track all of that, but I am sure that

16 is true. There are those cases.

17 Q

Do you know what the average stay of the inmate in

18 protective confinement is at Glades Correctional?

19 A

Nto, I do not.

20 Q

In respect to inmates that are retained in protective

21 confinement for a longer period than a few days or a few

22 weeks, do you know what the circumstances for that happen

23 to be typically, or in any individual instance?

24 A

Number one, the inmate is refusing to go back in

25 population for whatever set of reasons.

Pauline A. Stipes Official Federal Reporter

512

1 ~Q

Do you know why he is not transferred under thd^e

2 circumstances?

3A

fly understanding is that there is the hope that this

4 person will go back and learn how to make it on the

5 qompound. He is being encouraged to do that.

6

The other thing I might say, if a person is verified

7 in danger, let's say you have two people who have gone to

8 trial, one turns State's evidence on another, and they both

9 become sentenced; they are separated in the institution;

10 one is transferred into the institution. It will be fairly

11 automatic that he will be transferred out.

12

You have those cases which you have verified danger

13 in which that will, in fact, occur, and it will occur

14 fairly quickly. On those cases that are considered

15 non-varifiable, and there is not a named assailant, there

16 is not a charge being made, the institution cannot verify

17 that this person is in danger, there tends to be a longer

18 protracted period in trying to encourage the person to go

19 back out.

20 Q

There is also those instances where persons are in

21 confinement, and seeking transfers to other institutions,

22 are there not, other institutions in particular?

23 A

There is certainly the feeling of staff, and I have

24 no doubt that this occurs, people will check into PC as a 25 means of forcing a transfer.

Pauline A. Stipes Official Federal Reporter

1 Q

That is not an atypical situation again in protective'

2 confinement around the country, is it? That is a

3 phenomenon which has been observed at other institutions,

4 that inmates do check into PC for purpose of obtaining a

5 transfer?

6 A

It is very difficult to ascertain this. How do you

7 know that a person is doing that because he wants to go

8 rather than he fears to stay? I have no doubt there are

9 instances. I am saying, you, I, or anybody would have a

10 hard time saying definitively or with any certainty that

11 this is the motivation.

12 Q

When an inmate asks for a particular institution that

13 he wants to be transferred to, that would give you some

14 indication, would it not, that he is really interested in

15 going to a specific institution more so than getting out of

16 the institution that he is in?

17 A

But he may feel if his problem at Glades Correctional

18 has been at sexual pressure, and he knows that this other

19 institution isn't noted for that, he may want to go there.

20

It is difficult to say whether it is legitimate or

21 not legitimate in wanting to go to a particular place.

22 Q

And it may be that his family is there?

23 A

Or that his lover is up there, and he wants to be

24 there.

25 Q

Sure, not all inmates in protective confinement are

Pauline A. Stipes Official Federal Reporter

.514

IT t^here because they checked in?

2A

No. The institution can make determination that a

3 ^person is in a dangerous situation, and put them in. They

4 may be there against their will if it is determined by the

5 staff that this person is in danger.

6Q

po you know what percentage of the inmates at Glades

7 Correctional over a stand of time have been checked into PC

8 by the administration, and against their will?

9A

No, I do not.

10 Q

Typically, inmates checked in in situations like that

11 would involve informers, would it not, informers that might

12 be in danger? That is a common situation?

13 A

That is common.

14 Q

Y_ou indicated that you saw some indication of cat

15 calling at Glades Correctional?

16 A

Well, just to clarify, I didn't see it. I saw it as

17 a theme in inmate interviews.

18 Q

There were a small number of inmate interviews that

19 referred to cat calling?

20 A

Yes.

21 Q

That is, again, not an atypical behavior pattern in

22 prisons, is it?

23 A

The answer is no.

24 Q 25 A

It is, in fact, typical? Well, I have a hard time with that, but it is not

Pauline A. Stipes Official Federal Reporter

j atypical.

2

Let me just say my concern was setting the stage upon

3 arrival in '84 and previous, you had a situation where the

4 bus was arriving, and you had inmates lining up to cheer,

5 and do the cat calls as kind of a welcome to Glades,

6 setting the stage, expectation, and fear and threat from

7 the moment they stepped off the bus.

8

What I am concerned about is systematic, overwhelming

9 orientation to Glades that occurs in that fashion.

10

My recommendations were just trying to overcome that.

11

The truth of the matter is, I am no longer in a

12 teaching role at the University of South Florida, but the

13 University of Florida. I typically in either psychology or

14 corrections class would take my students up to Union

15 Correctional, Florida State prisons, Marion, and I always 16 gave an orientation to my student, this is what you should

17 expect, and certainly part of that was the cat calls, and

18 the sexual innuendos.

19 Q

Even you received cat calls, and sexual innuendos?

20 A

I don't much anymore.

21 Q

And, in fact, the situation involving the bus and

22 inmates lining the fence does not exist at Glades anymore,

23 does it?

24 A

I think that is right.

25 Q

The bus exists, but inmates do not congregate on the

Pauline A. Stipes Official Federal Reporter

516

1 n visitor port to welcome inmates?

2 A

I must confess, I do not understand the logistics of

3 the current operation just the report that continues. My

4 Recommendation is to stop bringing them in as a group so

5 you have, as I do with a class tour, introduce them in a 6 compound in the way you donft have a large number of

7 visible newcomers who are going to be broken in in that

8 fashion.

9 Q

Are you aware of what that would involve

10 loqistically?

11 A

No. I am saying if that can be done. I do know, to

12 have a reception area would take some reworking of the

13 current assignment.

14 Q

Or transfer of inmates one by one?

15 A

From—

16 Q ffould be a substantial logistical problem?

17 A

It may or may not. I haven't thought it through.

18 Q

In respect to the counseling programs that are

19 available to inmates generally in which inmates in PC are

20 not — do not find available to them, such as Alcoholics

21 Anonymous, are you aware of how frequently those sessions

22 meet at GCI?

23 A

It is my impression that there are groups that meet

24 weekly.

25 Q

Or every other week?

Pauline A. Stipes Official Federal Reporter

217

1 A

And there is a number of alcohol programs. There is

2 Alcohol Victorious, Alcoholics Anonymous, and Narcotics

3 Anonymous, and general counseling sessions. They are not

4 consistent in terms of the repetition of their meetings.

5 Q

tjlany of the inmates in PC are not there long enough

6 to miss a session or at most a couple of sessions, are

7 they?

8 A

.Assuming that your average or model stay is just a

9 number of days, that would be true. The concern I have is

10 for the inmate who literally is very frightened of this

11 compound. The inmate who has a number of other issues of

12 need. Inmate who is, at best, emotionally unstable. An

13 inmate who, at best, is insecure about survival, an inmate,

14 at best, who has experienced a highly traumatic experience.

15

There is one inmate on PC now who is an avowed

16 homosexual who is HIV positive who is scared to death that

17 he could be killed in population. His two days on compound

18 were such that he was afraid he was going to be the

19 punching bag. His fear is palpable; his depression is

20 real; his contemplation of suicide is real. He has never

21 received counseling for the fact he is HIV positive. He

22 never received counseling in terms of how to reassure

23 himself, and handle himself on the compound. I presume he

24 is still there. To my knowledge, he is.

25

That is the kind of person I am worried about. He

Pauline A. Stipes Official Federal Reporter

1 pught to be able to have a counselor who has an

2 understanding, who could then react to him, and suggest a

3 transfer. He is not going to talk about it in a confined

4 situation which there are going to be people on either side

5 of him overhearing him.

6 Q

And, idealy, the situation to handle inmates such as

7 that would be to transfer them to an institution where they

8 can be in open population, and receive services in a more

9 typical fashion, as other inmates?

10 A

I don't disagree with that.

11 Q

In fact, psychological services delivered in the

12 confines of a protective confinement setting are rather

13 illdelivered, at best, are they not?

14 A

Let me just say that a rape counseling approach

15 probably would be helpful. Just knowing that somebody

16 cares. The knowing that somebody is there to see you more

17 than just to see that you haven't developed a bruise, or

18 bleeding openly. That kind of stuff is very helpful.

19 Q

The majority of those for whom there was any evidence

20 of rape, and going back to your inmate interviewsf Doctorf 21 am I correct in noting through there that there does not

22 appear to be any pattern of unreported, or any significant

23 unreported rapes occurring at Glades Correctional derived

24 from your interviews?

25 A

One of my observations and characterizations of that

Pauline A. Stipes Official Federal Reporter

1 is that the contrast of four years ago and now in terms of

2 forcible rape is dramatic. And it is along that line.

3 Q

And, in fact, the one__or two instances where inmates

4 indicated to you that they had some personal knowledge of a

5 possible rape having occurred, they indicated that that

6 inmate had been moved either to PC, or to another facility

7 shortly afterwords, did they not?

8 A

That is my recollection, yes.

9 Q

Indicating that at least from the sources of

10 information you had, there is no evidence of a large body

11 of unreported sexual—forcible sexual assaults?

12 A

That is yery difficult to estimate. What I am more

13 comfortable saying is, compared to four years ago, we

14 really have a higher reduction, because there are a number

15 of people that we were aware of that were raped, and we

16 aren't seeing that now.

17

The reason I am hesitating and qualifying, rape, in

18 general, is a under-reported event, and it tends to be j?yen

19 compounded within a correctional environment; so, one would

20 s^ay as a crime there is a lot of hidden rape victims in

21 general, and one expects a lot more within a correctional

22 population.

23 Q

Certainly you didn't notice, though, from the reports

24 given you by your interviewees any institutional rapes that

2 5 are occurring in large numbers and going unreported?

Pauline A. Stipes Official Federal Reporter

:>20

"A

That is correct. I am saying it is remarkable.

2 There has been progress from '84 to now.

3Q

And of the inmates who reported rapes, or alleged

4 rapes, you had occasion to review the investigation

5 reports, did you not?

6A

Yes.

7Q

And it was rather clear from those investigation

8 ^reports, was it not, that there were some of the reports

9 that were, in fact, false reports?

10 A

I do know that was the conclusion of the process.

11 Q

And the indication of the basis for those conclusions

12 in many instances seemed palpably correct, did it not?

13 A

Certainly were supportable, yes.

14 Q

And what was the total number of reported and

15 investigated rapes or alleged rapes at Glades Correctional

16 from January 1st of '86, until the present?

17 A

I don't know that. What I do recall is that there

18 was no report of a rape with the exception on a

19 superintendent's monthly report, January '86, in which

20 there is something called assault sexually related. I

21 don't know what that translates to. The number of alleged

22 rapes, I don't have that on the top of my head.

23 Q

You are aware of the Department of Correction rules

24 on reporting of rapes or sexual assaults in the monthly

25 report, are you not?

Pauline A. Stipes Official Federal Reporter

221

1 A 2 Q

1 do know there is a place for themy yes. And the regulation requires only those confirmed

3 rapes be reported, and not the unconfirmed ones?

4 A

j_did understand that, yes. And all I was saying is

5 is that the only statistic I recall is that

6 superintendent's report of '86. I don't have the number of

7 alleged rapes in my head for '86 forward.

8

THE COURT: Mr. Davis, is this an appropriate

9 time for a recess?

10

MR. DAVIS: It might be, Your Honor.

11

THE COURT: All right. Let's do it, it is

12 about time for mid-morning remember session.

13

We will be in recess for 10 minutes. You are

14 excused.

15

(Thereupon, a short recess was taken.)

16

THE COURT: All right. You may proceed.

17

MR. DAVIS: We would like to move into evidence

18 Defendant's Ex. 22, the item that Dr. Swanson was

19 testifying from.

20

MR. LIPMAN: No objection.

21

THE COURT: Received without objection.

22

(Defendant's Ex. 22 received into evidence.)

23 BY MR. DAVIS:

24 Q

Dr. Swanson, with respect to the inmates of whom

25 ^here were reports received of alleged sexual assaults, and

Pauline A. Stipes Official Federal Reporter

222

~~I for which there were investigations which numbered 2 approximately 15 or 1 fi?

3 A

I am not sure, but jt doesn't sound off.

4 Q

Do you recall the number of those reports which were

5 substantially after the fact?

6 A

Yes, I do recall there were some.

7 Q

As much as 9 months after the fact?

8 A

I do recall.

9 Q

Some were reported after the inmate had departed

10 $lades Correctional Institutional and had been gone for

11 quite some period of time?

12 A

That is correct.

13 Q

And did you note whether any of the inmates who were

14 among those who reported sexual assaults were inmates that

15 were receiving psychological, or psychiatric counseling and

16 services during the time span in which the rape was

17 recorded, both before and after?

18 A

I don't recall that. I am not sure how I would have

19 ascertained that.

20 Q

And in respect to the inmates that there were

21 investigations done on, and that indicated a strong

22 likelihood that there was, in fact, no sexual assault

23 either because the inmate himself admitted voluntarily

24 engaging in sexual activities or there was independent

25 evidence indicating that, or that there was no act that had

Pauline A. Stipes Official Federal Reporter

223

1 occurred, you would agree that psychological counseling

2 would certainly not be called for in those cases, would you

3 not?

4 A

Let me say yes, but, my characterization, my

5 understanding of the present procedure, although I see it

6 and welcome it, is that it is the more traditional law

7 enforcement approach when the concern is establishing a

8 case, making sure this case can be prosecuted, making sure

9 that the victim or would-be victim or alleged victim is not

10 making this up, contriving the accusation.

11

While I don't disagree that that is important, you

12 have to understand this in the context of the rape process

13 in which that approach is seen as further victimizations.

14

So, all I am saying is, one can't tell whether

15 dropping the charges in the real case, dropping the charges

16 or saying this didn't occur, is a consequence of the fact

17 that it did not occur, or as seen as a way of stopping this

18 continuing discomfort. So, I don't know.

19

The truth is that I have already answered if, in

20 fact, there is certainty that there hasn't been a rape, and

21 for whatever the motivation, perhaps a person had a bad

22 debt and used this as a means to check into PC, that person

23 wouldn't need rape counseling if that were the case.

24

Although I have to say within the context of an

25 institution, it is a very unusual case that someone who is

Pauline A. Stipes Official Federal Reporter

224

1 a gambler or otherwise say I have been a rape victim in

2 order to get into PC.

3 Q

You reviewed the situation of Mr. Savino, did you

4 not? He was one of those inmates?

5 A

At this point I have gone through so many names.

6 Q

Mr. Savino was the name associated with the

7 horticulture department?

8 A

Yes.

9 Q

And Mr. Savino checked in and claimed he had been

10 raped the day before in the horticulture department by an

11 unnamed, and unknown assailant?

12 A

Yes.

13 Q

An investigation revealed that the day before he

14 checked in, Mr. Savino had been discovered by a public

15 school teacher who teaches at the institution in engaging

16 in consensual sex with another inmate in the building, and

17 had been informed he was going to be removed from the

18 program as a consequence?

19 A

Yes, I don't say that doesn't occur. I am saying

20 that is an unusual case because it is a stigma.

21 Q

In that case it was less of a stigma to be considered

22 a rape victim than to be considered a voluntary homosexual?

23 A

Yes.

24 Q

In fact, that is a theme that comes out from time to

25 time in other reports on these inmates, does it not?

Pauline A. Stipes Official Federal Reporter

i25

1 A

Yes.

2 Q tThat is, an inmate, that if an inmate is put in a 3 situation where his consensual homosexual activity is

4 discovered, and becomes a matter of public knowledge either

5 to the administration or to other inmates, it is preferable

6 for him to have thought that he was sexually assaulted

7 rather than he was voluntarily giving it up, is that true?

8 A

That is true. One of the things I could say, a

9 person can get into ostensibly a voluntary situation, when,

10 in fact, he felt he was coerced, had no alternative. Once

11 that starts, then it continues, so the origin of that

12 within a correctional community such as Glades is difficult

13 to call voluntary in all cases, even though it may appear

14 so.

15 Q

There is a continuum of voluntariness or

16 fion-voluntariness in the situation?

17 A

Correct.

18 Q

And you also noticed that a number of the inmates who

19 claim to have been assaulted were transferred out of GCI

20 within a matter of a few weeks after the claim of assault?

21 A

I think that is correct.

22 Q

In some cases, that is a matter of a few days?

23 A

That is right.

24 Q

And, certainly, a psychological counseling program

25 for such inmates at GCI would not be productive, would it,

Pauline A. Stipes Official Federal Reporter

526

1 a__lonq term counseling prograji for such inmates who are not

2 going to be at GCI, but who are going to be transferred out

3 of GCI to other institutions?

4 A

Well, by definition, but intensive counseling session

5 should be begun at the time of trauma.

6 Q

And it has been recognized, has it not, that what you

7 have just referred to as intensive counseling sessions, or

8 aggressive counseling sessions, proactive counseling

9 sessions, once where the counselors seek out the

10 participants, are viewed by those who are sought out as

11 being also a continuation of the rape process in some

12 circumstances?

13 A

I think the counselor has to be sensitive to that

14 possibility, and handle it accordingly.

15 Q

There are many people involved in a rape situation or

16 a sexual assault situation who prefer not to have the

17 intervention of another person, that prefer to have the

18 privacy of their own self and don't want to talk about it

19 to a counselor, or to anyone else, is that not true?

20 A

I am not sure that I am in depth on rape counseling

21 procedures.

22 Q

Are you familiar with the prevalence of rape crisis

23 centers at correctional institutions customarily?

24 A

I think it is rare, but I think the need is there,

25 Q

All right. As a matter of fact, customarily, it does

Pauline A. Stipes Official Federal Reporter

>27 IT~J] not exist in prisons, is that correct?

2 A

That is correct.

3 Q

Are you aware of the crisis counseling procedures in

4 the Florida Prison System?

5 A

Counseling procedures?

6 Q Yes.

7 A, I think so. Depends on the detail.

8 Q

Are you aware of the set up crisis center,

9 psychological crisis center in the Florida Prison System?

10 A

Yes, I am also aware of the planned proposed

11 correction medical authority, and I am also working with

12 the Department of Correction to develop mental health

13 training to the institute.

14 Q

And the system has psychological crisis centers

15 throughout the State to which inmates who are observed as

16 being in psychological crisis may be referred?

17 A

Yes, there is a change in mental health services,

18 psychological services that has begun within the Department

19 of Corrections.

20

The overall note institutions will specialize. There

21 will be some medical at some institutions, and inmates will

22 be classified, and sent to those when seen a need, that is

23 correct.

24 Q

There has been a process of implementation, and

25 expected to be completed at the end of the year?

Pauline A. Stipes Official Federal Reporter

£28

1 A

I think that is a time table.

2 Q

You indicated that there were not found by you to be

3 any indications of standard polygraph procedures in rape

4 investigations at GCI?

5 A

I haven't picked up on anything that I have read.

6 Q

And, surely, you are aware of the growing body of

7 authority in the field of polygraph procedures that cast

8 grave doubt on the reliability of polygraph procedures as a

9 means of detecting whether a person is telling the truth or

10 not, are you not?

11 A

Certainly. Understand, I was taking—this is what

12 was found in '85, and I was finding whether that was true

13 today. Polygraph procedure is just one element to show

14 that a procedure has been developed, as I understand it.

15 Q

There is a substantial body of respectable authority

16 that counsels against the use of polygraph procedure, is

17 there not, on constitutional grounds, and grounds on the

18 effectiveness and the utilitarian value?

19 A

I am aware of both grounds. The one point on this

20 issue that I was recommending was the counseling. I don't

21 think I did recommend the polygraph.

22

MR. DAVIS: If I could have just a moment, Your

23 Honor. I have no further questions.

24

THE COURT: Any redirect?

25

MR. LIPMAN: Very brief.

Pauline A. Stipes Official Federal Reporter

T~

REDIRECT EXAMINTION

2 BY MR. LIPMAN:

3 Q

Dr. Swanson, two brief areas that I would like to

4 revisit. The disciplinary reports that you reviewed last 5 evening, and had reviewed under your supervision, am I

6 correct in recalling your testimony there were

7 approximately 730, -35?

8 A

737.

9 Q (731?) That related to a period of eight months

10 spanding over the past year?

11 A

That is correct. I had 11 tnpnt-hs.Jua^choose from.

12 Q

Are you comfortable in drawing conclusions from what

13 is obviously not all the DR's over a period of time, but

14 the number that exist?

15 A

I am very comfortable for a couple of reasons. One,

16 just on looking from that high of paper document, over a

17 foot and a half, we took about two-thirds of that. We have

18 a 66 — approximately 66 percent sample. You worry about

19 sampling error. You take a 10 percent sample of a

20 thousand. You are pretty confident. I took 66 percent

21 sample. I am very confident what I had is representative.

22

I also try to sample so we took from both ends of the

23 year in a way that we wouldn't get particular time of the

24 year problems, and so I am probably missing April, and

25 October, something like that, in terms of the population of

Pauline A. Stipes Official Federal Reporter

£30 1 disciplinary reports.

2

I am very confident what I have is representative,

3 and, therefore, reliable, and not subject to sampling

4 error.

5 Q

Were you able to discern or draw any conclusions from

6 the content of the disciplinary reports that were reviewed?

7 A

Yes, and in general, as I have stated on cross, the

8 number — ^ number of these items I felt supported some of

9 the recommendations and conclusions I made on initial

10 direct.

11 Q

What are they, specifically, and briefly?

12 A

Just to recapitulate, I was concerned about the

13 availability of drugs and alcohol, especially marijuana,

14 and buck, homemade wine, that seems to be corroborated.

15

I., was concerned about the tolerance of sexual

16 behavior, consensual in this case, and given it had such a

17 remarkable low number of infractions that seems to be

18 substantiated.

19

Within the weapons related, having 28 instances over

20 an eight month period, I am still concerned about. ,1 would

21 expect more confiscation, and I do understand the

22 difficulty about not all confiscations will be in

23 disciplinary reports. We did review incident reports, and

24 make recommendation in light of incident reports.

25

Those are the main elements.

Pauline A. Stipes Official Federal Reporter

231

1

I still see a high amount of contraband, drugs,

2 alcohol, available on compound. I am also concerned about

3 what might be seen as tolerance as illustrated by the

4 infractions, the penalties for the infractions that are

5 received. We see loss of gain time. For trafficking in

6 marijuana, the penalty is 60 days. Loss of gain time for

7 stepping in line to get a second pork chop is 30 days loss

8 of gain time. I am concerned about the parallel of that.

9

We do see higher infractions in other cases, higher

10 penalties, but the fact of trafficking with lists, and

11 dollar amounts, and the drug itself, only getting loss of

12 gain time is a concern to me.

13 Q

Have you reviewed the disciplinary reports and

14 withdrawn any specific cases which help support the

15 conclusions that you just reached?

16 A

It was interesting to me last night going through

17 with two other people that you really get a flavor, and

18 these things come alive to you through the vehicle of

19 disciplinary reports. I did select, I think, sample cases

20 that illustrate or represent different kinds of things.

21

If I can talk about them?

22 Q

Yes, share those specific cases.

23 A

I have possession of narcotics charge on an inmate by

24 the name of Eric Robinson July 18, 1989. At approximately

25 8:05 P.M. while conducting a routine security search of

Pauline A. Stipes Official Federal Reporter

232

1 inmate Robinson and personal property in and about

2 dormitory, I find an envelope filled with white powdery

3 substance, and one match box, four plastic bags of hard

4 white substance that appear to be cocaine. The match box

5 and substance was found inside of inmate Robinson's blue

6 Reebock right tennis shoe, and he was present when I found

7 it. inmate Robinson stated that the shoes belong to him,

8 envelope found inside of the cap, and he stated that the

9 cap belonged to him.

10

After the search was completed, escorted to the

11 Captain's office along with the substance, where Captain

12 Slater conducted a test. This proved to be a positive

13 cocaine. The evidence was placed in the evidence locker in

14 the Captain's office, and inmate Robinson was involved in

15 an investigation that would ensue.

16

Let me just say here is a example of crack cocaine on

17 the compound. The investigation was made, disciplinary

18 %eam action was 60 days of disciplinary confinement, and

19 180 days loss of gain time. This was approved by the

20 superintendent.

21

Another is a incident, August 25, '89. inmate Zach

22 B.owman.

23 Q

Before you go to the next?

24 A

Yes.

25 Q

What point do you make? What conclusion do you draw

Pauline A. Stipes Official Federal Reporter

>33

from this?

A

Clearly, crack cocaine is present. The infraction in

this case is 60 days of disciplinary confinement, and 180

days of loss of gain time. That is six months. Here we

see the crack cocaine is. in fact, taken fairly seriously.

60 days in disciplinary confinement as well as six months

loss of gain time, I do see as a significant penalty.

8

<pne question, I was seeing a number of these kinds of

9 cases just was a question as to whether the administration

10 ,has ever considered filing charges. Certainly the

11 possession of a narcotic is a criminal penalty. Jflould that

12 alleviate,, or would that help control contraband? I have

13 not discussed that with them, but it, in fact, is seen as a

14 problem. You could charge outside charges on that. The

15 conclusion here is crack is available, it is taken

16 seriously, and penalties are given in the institution.

17 Q

The second PR?

18 A

Inmate Zach Bowman, August 25, while supervising

19 culinary department. I observed Inmate Bowman leaving the

20 building through the diet exit. I called Bowman by name,

21 and he refused to stop. Inmate Bowman did not have

22 permission from any staff member to justify leaving the

23 kifrchen. fle was charged with unauthorized absence, and

24 given 60 days loss of gain time.

25

The only point there, unauthorized absence gives you

Pauline A. Stipes Official Federal Reporter

234

1 60 days gain time, at least in this instance.

2

Another instance, August 1st. 1989, involves Mr.

3 Conner from food service who was escorting Inmate Danny

4 Martin into his office. Mr. Conner told that inmate Martin

5 .admitted to him that he was on crack cocaine, and owed a

6 $45 balance to an unidentified inmate. Inmate Martin

7 admitted to me, Captain Slater, that he was on cocaine,

8 crack, and owed a balance of $45, and was in fear of his

9 life, because he had been threatened by unidentified

10 inmate.

11

This was investigated, disciplinary team action

12 followed, subject offered staff assistance, declined same;

13 subject plead guilty, subject stated has crack cocaine

14 problem, is trying to deal with it. Taking care of debts,

15 no longer in fear of anyone. Finds inmate guilty, and

16 finds 30 days loss of gain time for the offense.

17

Here you have a person on compound, has a problem of

18 crack cocaine, admits to it. In order to avoid retaliation

19 of people who he owes money for his drug habit, he checks

20 into protective confinement. That does square with some of

21 the inmates who said they would go to protective

22 confinement to avoid drugs on compound. It seems to be

23 available enough that people who have problems on the

24 street have trouble staying off the drug in the institution

25 itself.

Pauline A. Stipes Official Federal Reporter

;>35

Here is another one that kind of goes with the one I just read. This occurred August 2nd, 1989. Inmate Sprague came to my office requesting that he be placed in protective custody. Inmate Sprague stated he was on crack cocaine. He further stated he owed him $45, and he had no

way of paying for the cocaine rocks. He was charged with

bartering with others, and received 30 days loss of gain

8 time.

9

August 4th, Inmate Brookson was placed in protective

10 custody confinement because he was in fear of his life, and

11 he was placed in cell number 1 with Inmate Sprague. At

12 approximately 2:35 a.m. this date, Inmate Sprague stated he 13 was in fear for his life because he, Sprague, owed Inmate

14 Brookson $9.00, and that is the reason he checked into

15 protective confinement. Inmate Sprague was advised

16 investigation of this report would be conducted. Inmate

17 Brookson was assigned to another cell in protective custody

18 confinement. Inmate Sprague was found not guilty, and the

19 charge was dismissed. He was charged with bartering

20 because he owed the money to the other inmate.

21

I bring this one up just as illustrative as how

22 complex running the correctional institution can be. When

23 you double bunk protective confinement, you have a number

24 oTf considerations and problems that can occur.

25

Just a few more examples, if I might.

Pauline A. Stipes Official Federal Reporter

£36

1

This is a disciplinary report, July 29, '89. A~t~

2 approximately ^_i_5 P.M., while standing at the front

3 entrance of a dormitory, observed Inmate Ambaum standing

4 next to the green salt tank on the southside of the boiler

5 room, went inside dormitory, and exited out the fire exit,

6 I approached Inmate Ambaum, and asked him to empty his

7 pocket which he complied. Inmate Ambaum removed what

8 appeared to be drug paraphernalia, a clear plastic jar, and

9 a short piece of radio antenna. Sergeant Bush was

10 njo_tif_jed, and items along with Ambaum was escorted to the

11 Captain's office. He was advised of the investigation, a

12 qarco ban test was conducted from the residue, and there

13 was confirmed content of cocaine. Based on the finding,

14 inmate subject was guilty, and received 60 days loss of

15 gain time.

16

Just another indication that drug use is, in fact,

17 occurring on the compound.

18

Here is one I think was referred to on cross. Inmate

19 V,argas charged on 29 July, '89. July 29thf approximately 20 3_;05 P.M.. while clearing all inmates out of the visiting

21 park, I observed Inmate Vargas throw a small plastic item

22 outside of the visiting park fence. I ordered the subject

23 to the Officer's desk, and proceeded directly to the area

24 wjiere the package was thrown. I received the package, and

25 contained 15 five dollar bills, and one dollar bill and 85

Pauline A. Stipes Official Federal Reporter

537

1 II cents, for a total of 81.85. Inmate Vargas was told that

2 the investigation would be conducted. Based on the

3 information the officer observed Vargas was found guilty,

4 and received 30 days loss of gain time.

5 Q

Does that complete the illustrative DR's of the

6 specific cases?

7 A

There is another one, checks into PC because he owes

8 on drugs. Let me do one more.

9

This is inmate Terry Dixon, 15 August, '89, at

10 approximately 9:30 P.M. while conducting a routine search

11 ojf Inmate Dixon. there was a pair of black Converse

12 sneakers. He said these belong to him. They contained a

13 green leafy substance. Inmate Dixon was — found eight

14 small packages. Inmate Dixon escorted to the Captain's

15 office along with the packets. They tested the packets.

16 They were found .positive for marijuana, and he was given 60^

17 days loss of gain time.

18

There are others, and I guess most of the others that

19 I have which I won't bother to read deal with substance

20 abuse, namely marijuana, trafficking, and in most of those

21 cases, the penalty was loss of gain time.

22

MR. LIPMAN: I have no further questions.

23

THE COURT: All right. You may step down,

24 thank you, sir.

25 (Witness excused.)

Pauline A. Stipes Official Federal Reporter

£38

MR. LIPMAN: Dr. Medina.

2

MR. AMLONG: Your Honor, the plaintiffs are

3 calling Dr. Medina as an adverse witness.

4

MR. DAVIS: We would object.

5

THE COURT: Well, he is identified with the

6 institution.

7

MR. DAVIS: That is true, not every employee of

8 the institution is an adverse witness.

9

THE COURT: That is the way the rule reads, if

10 I recall, if he is identified with a party or not, he can

11 be treated as an adverse witness. He is a professional. I

12 don't think he is a person who is apt to be led, should be

13 less so, I would think, than others. I am going to permit

14 it to be done.

15

JORGE MEDINA! PLAINTIFFS' WITNESS SWORN

16

THE COURT: State your name.

17

THE WITNESS: Jorge Medina.

18

DIRECT EXAMINATION

19 BY MR. AMLONG:

20 Q

Dr. Medina, tell Judge Paine what you do for a

21 living?

22 A

We11, physician, psychiatrist.

23

THE COURT: Speak into that microphone, and

24 speak slowly, and as distinctly as you can.

25 BY MR. AMLONG:

Pauline A. Stipes Official Federal Reporter

1 Q

You are a physician, specialist in psychiatry?

2 A 3 Q

Yes. y ° u say you are a specialist in psychiatry, but you

4 are not board certified?

5 A

No,. I am not board certified.

6 Q

And where are you employed?

7 A

At Glades Correctional Institution.

8 Q

For how long have you been employed at Glades

9 Correctional Institution?

10 A

Since September 6. 1974..

11 Q

Roughly sixteen years?

12 A

Fifteen years.

13 Q

Okay. Now, you are the only psychiatrist there, are

14 you not?

15 A

Yes.

16 Q

And Dr. Medina, your training in psychiatry was three

17 years residency at state hospitals in Maryland and

18 Virginia?

19 A

Yes.

20 Q

JBefore that, you were an orthopedic surgeon?

21 A

In my country, yes, I was an orthopedic surgeon.

22 Q

Doctor, tell Judge Paine what training, if any,,

23 you/ye had in dealing with people who are the victims of

24 r^p_e_?

25 A

N,o any special training. Only training I get for in

Pauline A. Stipes Official Federal Reporter

>40

1 g*?n<?ral trainina for Dsvchiatric.

2Q

Well, as far as dealing with rape victims, you had no

3 training?

4A

What? I have traininq in psychiatric in qeneral. I

5 can treat anybody in circumstances.

6Q 7A

Have you ever worked in a rape crisis center?, No.

8Q

Have you ever dealt with a patient who has iust been

9 raped?

10 A

No.

11 Q

And in the fifteen plus years that you have been at

12 GCI you haye never been consulted concerninq any inmate

13 who has been raped, have you?

14 A 15 0

No.
XT M B *
And, indeed. Dr. Medina, you were not aware of any

16 inmate rape that has taken place in the fifteen olus vears.
m
17 are you?

18 A
19 Q

I don't see any case of rape there, no. Myself, no. -a
In those fifteen plus years that you have been the

20 staff psychiatrist at Glades Correctional Institution, have

21 ypu ever seen anv inmate adverselv affected bv sexual

22 advances from other inmates?

23 A

No.

24 Q 25 A

Are you aware what this litigation is about? Well, now, yes.

Pauline A. Stipes Official Federal Reporter

£41

1 Q

Prior to this, did you ever read the opinion in this

2 case, the ruling?

3 A

The opinion? No.

4 Q

Since January 1986, has anybody from the prison

5 administration or the Department of Corrections said

6 anything to you about the need to provide psychiatric

7 services to inmates who have been homosexually raped?

8 A

No.

9 Q

Have you had any conversations whatsoever about

10 homosexual rape with Mr. Lambdin?

11 A

No.

12 Q

And you also had no conversations about homosexual

13 rape or providing a treatment for rape victims with Mr.

14 Lambdin's predecessor, Mr. Music, is that correct?

15 A

No.

16

MR. AMLONG: No further questions at this time,

17 Your Honor.

18

THE COURT: Cross-examination.

19

CROSS-EXAMINATION

20 BY MR. DAVIS:

21 Q

Dr. Medina, let me show you what is marked as

22 Defendant's Ex. 3,, and ask you if you can identify that

23 item?

24 A

What?

25 Q

Can you review this item, and tell me what this is?

Pauline A. Stipes Official Federal Reporter

242

~I

MR. AMLONG: Your Honor, I will stipulate this

2 is his curriculum vitae.

3

THE COURT: All right.

4

MR. DAVIS: Your Honor, we offer this into

5 evidence as the Defendant's Ex. No. 3.

—————^ —

. __

6

MR. AMLONG: No objection.

7

THE COURT: All right. It is received.

8

(Defendant's Ex. 3 received into evidence.)

9 BY MR. DAVIS:

10 Q

Doctor, the microphone is a little bit — Could you

11 sit next to the microphone, please?

12 A

Okay.

13 Q

You indicated on direct examination that you were not

14 board certified, is that correct?

15 A

I am not board certified. I am board eligible.

16 Q

You were board eligible in psychiatry?

17 A

Psychiatric, yes, I applied, I was supposed to take

18 the test, and due to my work in the place, I did not take

19 %he test.

20 Q

You were eligible for it. You did not take the test?

21 A

I am board eligible, yes.

22 Q

And have you served as staff psychiatrist at

23 institutions outside the State of Florida?

24 A

Yes. In Virginia, State of Maryland.

25 Q

Have you in the course of your work at Glades

Pauline A. Stipes Official Federal Reporter

1 Correctional Institution had occasion to counsel inmates 2 who complained of sexual pressures?

3 A

Well, jsome occasions, some inmate, yes, they say they

4 have been some — some people are making homosexual

5 advance, depending who they are in confinement, in

6 protective custody, and they want to be transfer, and they

7 come to see mostly, no because of any complaint about that,

8 mostly because after a few days in protective custody, and

9 confinement, they complain no sleeping good. Main

10 cTomplaint, they ask for something to help for sleep, most 11 of these people coming to see me.

12 Q

Do you have occasion to receive requests to interview

13 with or counsel with inmates in protective confinement?

14 A

yes. I see many people. They can call me all the

15 time. Some weeks I see two, three, in confinement. They

16 know me. They know how to make the request.

17 Q

On some weeks you see two to three inmates on

18 protective confinement?

19 A

They come into my office, yes.

20 Q

And on those occasions they are brought to you by a

21 staff member, is that the usual procedure?

22 A

What?

23 Q

Are they, on those occasions, brought to your office

24 by a staff member, by a correctional officer?

25 A

They bring to my office by correctional officer, all

Pauline A. Stipes Official Federal Reporter

2

MR. AMLONG: Judge Paine, my objection to this

3 question is beyond the scope of direct. To save time if

4 Mr. Davis wants to make Dr. Medina his witness, that is

5 fine with me. I don't mind him being taken out of turn. I 6 object to him leading Dr. Medina outside the scope of 7 direct.

8

MR. DAVIS: The scope of direct had to do with

9 counseling services provided to people that had

10 homosexual—

11

THE COURT: I think it did. I will overrule

12 the objection. You may proceed.

13 BY MR. DAVIS:

14 Q

And, In the course of your work at GCI, what is the

15 primary function that you serve. Dr. Medina,?

16 A

I serve psychiatry in general. Some who is manic

17 depressive, taking medication, they come into the

18 institution. I follow all these inmates. I follow them

19 with the medication, and also sometime they come in for

20 consultation, about some problem, family problem, any

21 pjoblem. they ask me question.

22 Q

All right.

23 A

I —

24 Q

So you counsel — you monitor the psvchotropic

25 medication for inmates?

Pauline A. Stipes Official Federal Reporter

1 A

All the time") anyone right there, they send to me

2 automatically. Yes, I follow them all the time.

3 Q

And you also indicated that you counsel certain

4 inmates independent of the psychotropic medication?

5 A

All the time. I counsel at the same time.

6 Q

How many do you see normally, say, in the course of a

7 week to counsel?

8 A

Well, sometimes I see eight, sometime 15, sometime

9 12., depend on how many patients.

10 Q

Is that per day, or weel^?

11 A

No. A day, eight, 12, 13. Because all these people,

12 sometime you see more, but that is because some of these

13 people come to renew the medication. This happen anywhere

14 you go, sometime they are doing fine. They come in to me

15 to renew the medication, in this case, no take too long. I

16 can see by myself, I renew the medication, these people

17 take a few minutes. Sometimes I see more.

18 Q

Okay. And what is the normal procedure to be

19 followed by an inmate who wants to see you for som.e

20 counseling.?

21 A

It is very easy, they can call me all the time. The^y

22 sign a request, and I make the appointment. Sometimes they

23 call me constantly without emergency. They are at the

24 qffice. they pass, too, and they see me. all the time.

25 Q

Do you ever receive referrals of inmates from other

Pauline A. Stipes Official Federal Reporter

>46

T staff members, that is from the correctional staff? Do

2 they ever refer inmates to you for counseling?

3A

yesf sometime they refer to me, any time any officer.

4 in the custodial department, they see an inmate in the

5 compound area, dormitory that might act wrong, strange,

6 they send to me immediately, they call my by phone, or send,

7 to me.

8Q

Do you have correctional staff refer inmates to you

9 who have a — who are exhibiting signs of depression?

10 A

Depression?

11 Q

Yes.

12 A

Yes, sometimes people are depressed from depression.

13 Q

And are you referred for consultation inmates who are

14 fient to you by other staff members besides the correctional

15 staff?

16 A

I send, I refer practical, all the bureau to the

17 psychology department in order to participate in the group

18 counseling.

19 Q

All right. In addition to the referrals by you to

20 the psychology department, in respect to the other

21 departments, classificationsf do they ever refer inmates to

22 you for counseling?

23 A

They refer to me for consultation, evaluation.

24

MR. DAVIS: No further questions, Your Honor.

25

THE COURT: Redirect?

Pauline A. Stipes Official Federal Reporter

>47

XT

MR. AMLONG: Briefly, Your Honor.

2

REDIRECT EXAMINATION

3 BY MR. AMLONG:

4 Q

Dr. Medina, has any staff member, corrections,

5 classification, any department of Glades Correctional

6 Institutional, has any staff member ever referred to you a

7 patient whose problem was he was complaining about being

8 homosexually raped?

9 A

No_.

10

MR. AMLONG: Nothing further, Your Honor.

11

THE COURT: You may step down, thank you.

12

(Witness excused.)

13

MR. AMLONG: Your Honor, the plaintiff will

14 call Gary Lane. I, likewise, call him as an adverse party.

15

MR. DAVIS: We object, also, Your Honor. We

16 don't believe that either one is an individual at the level

17 that would allow him to be called as an adverse party.

18

THE COURT: I will reserve ruling on that at

19 the moment until we find out more about this gentleman.

20

GARY LANE. PLAINTIFFS' WITNESS SWORN

21

THE COURT: Please be seated. State your name

22

THE WITNESS: Gary Lane.

23

THE COURT: Spell your last name.

24

THE WITNESS: L a n e .

25

Pauline A. Stipes Official Federal Reporter

248

1
2 BY I4R. AMLONG:

DIRECT EXAMINATION

3Q

Mr. Lane, what do you do for a living?

4A

Psychological specialist at Glades Correctional

5 Institution.

6Q 7A 8Q 9A

As of now, you are acting psychologist there? That's correct,. Supervisor of all psychologic That is correct.

10 Q

How long have you been there?

11 A

In the acting psychologist po

12 Q

Both?

13 A

I have been there since Octob

14 a staff psvcholoqist. "iob title cha:

15 specialist. As far as acting psvchi

.en a

16 few months now. That is aoina back to approximately Mav or

17 June of last yeajr.

18 Q

You had previously been acting psychologist as well,

19 had you not?

20 A

No. I had been supervising the department, not as an

21 acting psychologist.

22 Q

Xou had been head of the psychological services?

23 A

I, had been doing supervision.

24 Q 25 A

For how long was that? from October, 1983, until — let's see, we are in

Pauline A. Stipes Official Federal Reporter

249
1 '90. That would be probably September f88y and again doing 2 it now.

3 Q

So, from 1983 through now, except for the period

4 September '88, through May 1989, you have been in charge of

5 the psychological department at Glades Correctional

6 institution?

7 A

Yes.

8 Q

Mr. Lane, what is your educational background in

9 psychology?

10 A

I have a Master of Science in applied psychology that

11 If, got at Nova University. I acquired that in 198p, 12 approximately. Since that period of time/ I have gone back

13 to school, working on a Doctorate in psychology, clinical

14 psychology. I am now in my last course of completing tha,t

15 degree.

16 Q

From which institution are you seeking your Doctor of

17 Psychology?

18 A

Miami Institute of Psychology.

19 Q

Is that affiliated with University of Miami?

20 A

No.

21 Q

What institution is it affiliated with?

22 A

Caribbean Center for Advance Studies.

23 Q

And that is located where?

24 A

Puerto Rico,..

25 Q

Now, what is the size of the staff that you

Pauline A. Stipes Official Federal Reporter

£50

1 supervised at GCI?

2 A

At this current time, I supervised three people, I

3 supervise one psychological specialist, one rehabilitation

4 therapist, and one clerk typist specialist.

5 Q

The psychological specialist is like you, a

6 subdoctorate psychologist?

7 A 8 Q

That is correct. Now, what services does your psychological department

9 provide out there?

10 A

We have group counseling, individual counseling. We

11 have sponsorship for the AA, and NA programs, and we do

12 psychological testing and evaluation when required to do

13 so.

14 Q

How much actual psychotherapy do vou perform?

15 A

Psychotherapy, if — my definition of psychotherapy

16 is more of a specific goal-oriented approach. This can be

17 sromewhat long term.

18 Q

Seeking —

19 A

As far as counseling goes, this is more in line with

20 what we do.

21 Q ffy psychotherapy, you are talking about a one-on-one

22 theraputic session that is designed to cure, ameliorate,

23 somehow help a specific diagnosis of psychopathology?

24 A

It is goal oriented with progress checks. It is

25 specific toward a specific goal. Counseling may be more

Pauline A. Stipes Official Federal Reporter

251

1 round about.

2 Q

And you donft do very much of that goal oriented

3 psychotherapy at all, do you?

4 A

There is not much of that really required under the

5 current conditions.

6 Q

And, in fact, on the month that the Costello v.

7 Wainwright team surveyed your institution, there was only

8 one hour and one-on-one psychotherapy project, is that

9 correct?

10 A

Is this the report?

11 Q

Yes.

12 A

The report was for August?

13 Q

Yes.

14 A

There was only one, when it came to mentally ill

15 inmates.

16 Q

Now, you have never had any experience, Mr. Lane,

17 have you, in rape crisis treatment?

18 A

No.

19 Q

And you've done nothing in either your Master's

20 Degree work or your studying for your poctorate concerning

21 treatment of someone who has just been raped?

22 A

No.

23 Q

Or the diagnosis of someone who has been raped?

24 A

Diagnosis in general could apply to anyone; however,

25 nothing designed specifically for that purpose, no.

Pauline A. Stipes Official Federal Reporter

I 152

:r ~Q

And independent of the course work that you have done

for your Master's Degree, and for your Doctorate, you have 2

never read anything even that you can specifically recall 3

dealing with the diagnosis or treatment of a male rape 4

victim, have 5

A 6

There is nothing that I have gotten involved in other

than basic reading of information that comes across my 7

desk, or whatever, nothing specific. 8

Q 9

You agree with me, don't you, homosexual rape is a

traumatic even.t? 10

A 11

Jt could be.

Q 12

And you agree with me that counseling services should

be available for someone who has had homosexual rape? 13

A 14

I believe the counseling service should be available

for any inmate who requires it. 15

Q 16

Are you aware the protocol, or prison system for

treating persons who have been subjected to homosexual rape 17

18 suggests a referral to counseling?

19 A

Am I aware of that particular statement?

20 Q

Yes.

21

22 Q

Are you aware of any protocols in the Department of

23 Correction for treatment of people complaining of rape?

24 A

I am not.

25 Q

Now, during the six years that you have been at GCI

Pauline A. Stipes Official Federal Reporter

£53

1 most of those as the head of psychology, have you ever

2 heard of an inmate at Glades Correctional Institution who

3 Jxa-s—f^mplained about being raped?

4 A

I have had nobody specifically say that to me.

5 Q

po you have any knowledge as to whether any rapes

6 have occurred at Glades Correctional Institution during the

7 six years that you have been there as chief psychologist?

8 A

No. I have no direct knowledge of that.

9 Q

Has any staff member — I mean that very broadly,

10 guards, classification people, nurses, have any staff

11 member ever told you during those six years that any inmate

12 has ever been raped?

13 A

I have never had any direct.

14 Q

Now, have you ever had any discussion with the

15 management of Glades Correctional Institutional, I am

16 talking about Mr. Lambdin, and higher ups at DOC, about

17 this litigation?

18 A

Direct conversations about—

19 Q

This litigation, this lawsuit?

20 A

You have to be just a bit more specific.

21 Q

Have you ever had any discussions with Mr. Lambdin or

22 any other higher up about whether or not there should be

23 any rape crisis treatment made available to rape victims?

24 A

No.

25 Q

In fact, you haven't had any discussions with anybody

Pauline A. Stipes Official Federal Reporter

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1 about rape victims at Glades Correctional Institution, have

2 you?

3 A

That is correct.

4 Q

Thank you.

5

MR. AMLONG: Nothing further at this time, Your

6 Honor.

7

THE COURT: Mr. Davis. Mr. Lane, keep your

8 seat, if you will.

9

CROSS-EXAMINATION

10 BY MR. DAVIS:

11 Q

Mr. Lane, as I understand from your testimony, you

12 are right now the acting director of psychological 13 services, is that correct?

14 A

Yes.

15 Q

And is there a vacancy in the department for a

16 director of psychological services?

17 A

Yes.

18 Q

Is that being sought at the present time?

19 A

Yes.

20 Q

And are there any other vacancies in the department

21 at the present time that are being sought to be filled.

22 A

No.

23 Q

Now, you indicated that the function which the

24 psychological department serves includes group counseling,

25 individual counseling, psychological testing, and the

Pauline A. Stipes Official Federal Reporter

255

1 operation of the various programs, is there a program

2 directed towards inmates who are recently introduced into

3 Glades Correctional?

4

That is, are there any orientation procedures for

5 those inmates in respect to the psychological department

6 and the services?

7 A

Yes, all of the inmates upon arrival go through an

8 prientation process, part of that is for one of our staff

9 members, rehabilitation therapist to orient them to the

10 services available in the psychological services.

11 Q

And in the course of orientating them to the services

12 available, is there any communication to them of what they

13 may do if they feel any particular need for these services?

14 A

jfes, as a matter of fact, the procedure, simply

15 pjiitting a call out into the certain department, and what

16 that department would be titled would be sufficient for,

17 them to be seen.

18 Q

All right. Are these inmates informed during the

19 course of the orientation of the particular, general types

20 of needs that they might have satisfied by counseling?

21 A

Generally speaking, we will introduce the types of

22 programs that are available, substance abuse being one of

23 them. People who would like to seek counseling for

2 4 personal problems, that is a general term without being too

25 specific, whatever problem they may have, to seek those

Pauline A. Stipes Official Federal Reporter

256

service's^

2 Q

And during the course of those interviews, are you

3 sensitive to the possibility that the interviewee be a

4 person who would be susceptible to sexual pressuring of a

5 prison environment?

6 A

During orientation, it is a group orientation, we

7 wouldn't have access to that kind of knowledge.

8 Q

Okay. po you have individual interviews with

9 inmates?

10 A

Yes, ever inmate that is coming into the institution

11 gets a screening by the psychology staff within

12 approximately 14 working days of his arrival.

13 Q

This is in addition to the orientation procedure, now

14 there is an individual session with each inmate?

15 A

That is correct.

16 Q

During that session, what is it that you are

17 attempting to convey to the inmate, and attempting to

18 receive from the inmate?

19 A

At this point, it is a mental status screening to

20 determine what his mental functioning is, and to advise him

21 further should we feel that he has a problem in substance

22 abuse, or some other area, would advise him what measure we

23 can take at that point,

24

We can pick up things from him that possibly have not

25 been picked up before, and it also gives him an opportunity

Pauline A. Stipes Official Federal Reporter

>58

T~ volunteered serviced

2

The majority of the people coming to us for

3 individual or group counseling of any type are sej^f

4 referred.

5Q

All right. Do you have any referrals from staff of

6 inmates exhibiting psychological distress?

7A

Yes, {_on an occasion we would get a phone call from a

8 dorm officer, a classification officer might spot

9 something, and bring it to our attention, medical

10 department, psychiatric, as well as general medical

11 department. There are other sources for referral.

12 Q

And, in reflecting on the referrals from the staff at

13 .GCI, do you find that they are often sensitive to the

14 potential need that inmates may have for those services and

15 refer them to you?

16 A

Sometimes more sensitive than the inmate is. Often

17 the inmate does not want the service, but the staff is

18 referring him over.T We may get an inmate referred to the 19 office for a specific reason, but the inmate has no desire

20 for particular counseling.

21 Q

You indicated in response to a question as to whether

22 an inmate who has been sexually assaulted should have,

23 counseling that you felt counseling should be available for

24 any inmate who requires it?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

1 Q

Is psychological counseling available for any inmate

2 at GCI who has been sexually assaulted?

3 A 4

Yes, it is. THE COURT: What is your answer?

5

THE WITNESS: Yes, it is.

6 BY MR. DAVIS:

7 Q

And in order to receive those services, it is simply

8 necessary for the inmate to indicate a desire to speak with

9 you, is that correct?

10 A

Yes, simply put in a request form to see us, and we

11 will see them as soon as possible.

12 Q

And in respect to the the inmates that are in

13 protective confinement, is there a practice by the member

14 of the psychology department to see and interview those

15 ^nmates on a regular basis?

16 A

Yes, we have a procedure wherever 30 days, if an

17 .inmate is in confinement, we will see them within a 30-day

18 period of time, and every 30 days thereafter.

19 Q

In order to perform that function, what do the

20 members of your staff do?

21 A

We have a staff member assigned to that duty. He

22 will be there every Thursday and Friday, or Thursday pr

23 Friday, depending on which day he chooses, and he will go

24 into the confinement area, look through all the people's

25 files that are in confinement, and determine how long they

Pauline A. Stipes Official Federal Reporter

>60

1 II have been there, and those that are coming up on 30 days,

2 he is going to automatically see.

3

He gives him a mental status evaluation, and the

4 course of being in confinement, he is available to all

5 other inmates at that time.

6 Q

Does he make himself available by moving from cell to

7 cell any inmate who wishes to talk with him at that time?

8 A

There will be rounds made where he will go around the

9 entire area. That is part of the responsibility. He is

10 going over there to see specific key people, but he is

11 making himself available to all people that are there.

12 Q

Any inmate that wishes to talk with him at that time,

13 fco consult with him, is free to do so?

14 A

It could be at that time, or may be set up where the

15 therapist will come back when there is more time to spend

16 with him. Depends on the circumstances.

17 Q

During the course of your delivery of psychological

18 services at Glades Correctional through individual

19 counseling sessions, have you had occasion to counsel

20 inmates who came to you because they felt they were getting

21 sexually pressured.?

22 A

There have been — I can't be specific with who or

23 when, but I do recall people who had some fears of this

24 possibly happening to them, yes.

25 Q

And they had no difficult in coming to you and

Pauline A. Stipes Official Federal Reporter

561

receiving counseling from you on those occasions?

2A

Well, again, to my recollection, this is not the

3 reason that they initially came. it was for other reasons,

4 but during the period of time that that would have been

5 brought out; basically, it takes talking a little while for

6 fchem to become comfortable enough with us to say things

7 that are personal in nature.

8Q

When you detect people who have that concern, do you

9 respond with the counseling assistance?

10 A

Yes, the counseling assistance is available to them

11 at all times.

12

MR. DAVIS: No further questions,

13

THE COURT: Anything else?

14

MR. AMLONG: Yes, Your Honor.

15

REDIRECT EXAMINATION

16 BY MR. AMLONG:

17 Q

You told Mr. Davis that sometimes the staff is more

18 sensitive than the inmate to the fact that the inmate is in

19 need of psychological assistance, correct?

20 A

Not probably so much that he is in need of it, but

21 they feel he needs it, and he may not want it. I am not

22 saying he may not feel he needs it, but he may not want it.

23 Q

But the staff is sensitive to the fact that the

24 inmate is exhibiting symptoms of psychological stress?

25 A

I believe they are.

Pauline A. Stipes Official Federal Reporter

262

1 Q

jfow, with all the "sensitivity to psychological

2 stress, during the six years that you have been there, has

3 any staff member ever referred to you anybody who has been

4 homosexually raped?

5 A

I cannot recall any instance of that. We haven't had

6 any referrals. For that specific purpose, I cannot

7 remember anything like that.

8 Q

The visits that are conducted in protective

9 confinement, are they cell-side visits?

10 A

XeJL, cell-side.

11 Q

He is here, and you are outside the door, and that is

12 how you conduct your visit?

13 A

Yes, typically it has to be that way. They are in

14 confinement for a specific purpose.

15 Q

And I believe you did say it takes some confidence

16 building, some talking, some rapport before somebody will

17 want to discuss fears of homosexual attack?

18 A

That was a general statement I made. Again, it is

19 kind of vague, but I think for some individuals that if

20 they get to know you, like any counseling, they tend to

21 open open up more to you.

22

MR. AMLONG: At this time, I would like to

23 introduce Plaintiffs' No. l,t which is protocols for

24 immediate physician referral to emergency room. Plaintiffs'

25 No. 7. It is a business record of the institution.

Pauline A. Stipes Official Federal Reporter

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~T

MR. DAVIS: This is a record of Glades

2 Correctional. If he intends to introduce it for this

3 witness. This document happens to be from the medical

4 department, and has to do with medical testing, and HIV

5 testing. It has nothing to do with psychological

6 counseling.

7

MR. AMLONG: It is an official Government

8 record. I am concerned with page two, which is the nursing

9 protocols that specify a sexual assault victim shall be

10 referred for counseling. And it is a public record. I

11 don't believe we need authentication of it. If they

12 insist, I am sure we could get a certified copy.

13

THE COURT: What is the date of the document?

14

MR. AMLONG: August 21, 1987, it was issued,

15 revised November 23, 1987.

16

THE COURT: Let me have a look at it, please,

17 before I rule.

18

Do you question the authenticity of the document, Mr.

19 Davis?

20

MR. DAVIS: No, Your Honor. If he intends to

21 introduce it through this witness, or for purpose of

22 questioning the witness—

23

MR. AMLONG: I am not going to question the

24 fitness.

25

MR. DAVIS: That is not a document which is

Pauline A. Stipes Official Federal Reporter

£64

1 directed toward this witness^ That is directed toward the

2 nursing services.

3

THE COURT: All right. I will receive it over

4 objection of counsel for the defendants. Plaintiffs' No. 7

5 received over that objection.

6

(Plaintiffs' Ex. 7 received into evidence.)

7

MR. AMLONG: Thank you, Your Honor. I have no

8 further questions of Mr. Lane at this time.

9

THE COURT: You may step down, thank you, Mr.

10 Lane.

11

(Witness excused.)

12

MR. LIPMAN: So the court has some orientation

13 what is left, and I don't know what Your Honor's choices

14 are. We have several inmate witnesses. They should be

15 somewhat brief, depending on cross-examination, and then

16 plaintiffs will rest with the exception of the testimony of

17 Dr. Caddy who I understand is enroute from Australia.

18

MR. AMLONG: He called me from San Francisco

19 last night. He was arriving Miami this morning.

20

MR. LIPMAN: We may complete our work prior to

21 5 o'clock without the opportunity to have Dr. Caddy

22 testify. If that is the case, I wonder if we could take

23 him out of order tomorrow morning, and that may be moot

24 depending on how we move this afternoon.

25

THE COURT: Is there any problem with that?

Pauline A. Stipes Official Federal Reporter

>65

MR~ DAVIS: I am not sure which aspect we may

have a problem?

THE COURT: Whether or not you have a witness

this afternoon to take up whatever time might be left over

if we finish with the inmates, and Caddy isn't available?

MR. DAVIS: We may have one witness to put on

this afternoon.

8

THE COURT: All right. We are going to take a

9 recess now until 1:30. We have another matter to hear in

10 here at one o'clock. We won't begin until 1:30. Let's see

11 how things go along. If you could have that witness on

12 call, it might be helpful. If we find we have time left

13 over and we have a witness to put into the breech.

14

We will be in recess until 1:30.

15

(Thereupon, a recess was taken at 12:10 p.m.)

16

(Court reconvened at 1:30 p.m.)

17

MR. LIPMAN: Your Honor, I prepared the order

18 yesterday morning regarding substitution.

19

MARK CHARLES WHITE, PLAINTIFFS' WITNESS SWORN

20

THE COURT: State your name, please.

21

THE WITNESS: Mark Charles White.

22

THE COURT: Mark Charles White?

23

THE WITNESS: Yes.

24

THE COURT: Spelled just like it sounds?

25

THE WITNESS: Yes.

Pauline A. Stipes Official Federal Reporter

566

IT

THE COURT: You may proceed.

2

MR. AMLONG: Thank you, Judge

3

DIRECT EXAMINATION

4 BY MR. AMLONG:

5Q

Mr. White, you are a prisoner in the State Department

6 of Corrections?

7A

Yes.

8Q

Where are you now?

9A

Martin Correctional Institution.

10 Q

And were you previously at Glades Correctional

11 institution?

12 A

Yes.

13 Q

For how long?

14 A

Roughly a year.

15 Q

And when was that?

16 A

Earlier part of '89, I left there. I was there, I

17 would sav. latter part of '88.

18 Q

Now, when you were at GCI, did you ever check into

19 protective confinement?

20 A

Yes, i did.

21 Q

Why did you check in?

22 A

Because of the drugs, and house conditions there at

23 GCI.

24

THE COURT: Now, you were at GCI between what

25 dates again, or approximate dates?

Pauline A. Stipes Official Federal Reporter

267

~T

THE WITNESS: Latter part of '88 until April of

2 1989.

3

THE COURT: So, less than six months?

4

THE WITNESS: Close to a year.

5

THE COURT: Latter part of '88 to April of '89?

6

THE WITNESS: Estimate, I am not sure of the

7 date.

8

THE COURT: All right.

9 BY MR. AMLONG:

10 Q

When you say drugs, where are you referring to?

11 A

Everywhere you tuynf on the compound, the dormitory,

12 like a big drug warehouse.

13 Q

Did you use drugs in prison?

14 A

I smoked marijuana.

15 Q

Why did you check into PC?

16 A

Drugs is what got me into prison. I am trying to

17 avoid it, I want out.

18 Q

Did you hope by checking in to secure a transfer to

19 another institution?

20 A

Ye?.

21 Q

You checked into PC in other institutions before

22 this, have you not?

23 A

Yes, I have.

24 Q

Where is that?

25 A

Backer, at UCI, Cross City, Hendry, I was placed in

Pauline A. Stipes Official Federal Reporter

268

~~I administrative confinement.

2 Q

Now, did you tell the guards at GCI you wanted to

3 check in because of the drugs?

4 A 5 Q

,No|/ sir. What did you tell them?

6 A

I told them that somebody was after me. They were

7 after me with a knife, they were going to kill me.

8 Q

Is that true?

9 A

No, it is not.

10 Q When you got into protective confinement, I want you

11 to tell the judge what the conditions were in protective

12 confinement?,

13 A

Overall conditions, it was nasty. You very seldom

14 got to clean yourself. One morning, I woke up, slapping my

15 face, there was a cockroach two inches long crossing my

16 face; no type ventilation. They don't give you nothing,

17 they put you in a little cell, and that is it.

18 Q

Now, which cell were you in?

19 A

Cell 5.

20 Q

And could the guards on duty in PC look up from their

21 desk and see you in your cell?

22 A

No, sir.

23

MR. DAVIS: Objection. Calls for speculation.

24

THE COURT: Objection overruled.

25

MR. AMLONG: Overruled?

Pauline A. Stipes Official Federal Reporter

:>69

THE COURT: Overruled, yes. He answered it, I

2 believe, he said no.

3 BY MR. AMLONG:

4Q

Did the^jguards patrol frequently up and down the

5 cellblock?

6A 7Q

vOnce in awhile. By once in awhile, what do you mean?

8A

You have eight hour shifts, maybe three times out of

9 that eight hour shi^t. Especially after the four o'clock

10 shift.

11 Q

Now, when you first went into protective confinement,

12 were you in a cell by yourself?

13 A

Yes, I was.

14 Q

And you went in March 6th, correct?

15 A

I believe that is correct.

16 Q

All right. Did there come a time when they gave you

17 a cellmate?

18 A

.They gave me a cellmate, and he was transferred, or

19 something, I don't know what happened to him.

20 Q

Okay. Did they tell you they were going to give you

21 a cellmate, or ask you if you wanted one?

22 A 23 Q

fio.
Did you have any discussion — this is Danny Ray

24 Martin?

25

No. Danny Ray Martin was a second cellmate.

Pauline A. Stipes Official Federal Reporter

no

1 Q

I am sorry. How long did you keep your first

2 cellmate?

3 A

He was in there maybe two days at the most.

4 Q

Did they give you another cellmate?

5 A

Yes.

6 Q

And who is that?

7 A

Danny Ray Martin.

8 Q

Did they tell you in advance they would put Mr.

9 Martin in your cell with you?

10 A

And the officer come to my cell, and said we need

11 space. You have to double up. Do you want Mr. Martin with

12 you?

13

And I say not particular. And he said you have no

14 choice.

15 Q

Why didnft you want him with you?

16 A

Because people down the hall said he is crazy. He

17 come from Chattahoochee. I didn't want no problems.

18 Q

Notwithstanding you are saying you didn't want Danny

19 Ray Martin in your cell, did they put him in there?

20 A

Yes, they did.

21 Q

Which day was that?

22 A

I don't know how long.

23 Q 24 A

How long did you peacefully co-exist with Mr. Martin? 24 hours.

25 Q

Tell the judge what transpired between you and Mr.

Pauline A. Stipes Official Federal Reporter

271

~~I Martin?

2 A

Earlier that day, I was in the gymnasium working out

3 in recreation, working out with too much weight. I tore

4 the upper part of my chest muscles, and shoulder muscles.

5 I was reading a book, and to quote, he looked, and said

6 "Cracker, you are going to fuck." In prison, they have

7 word games, word of mouth, to create fear upon fear. I

8 didn't know if that is what he was saying. He said,

9 "Cracker, you are going to fuck tonight. I don't care what

10 it takes."

.

11

He showed me various cuts on his body, and arms, and

12 he had a razor blade in one hand, and ink pen, and he

13 looked at me, and pointed to chest and arms, he said, "If 14 Y O U don't think I will cut you, look what I done to

•"•5 myself." He said it won't mean nothing. They would take

16 him back to Chattahoochee. He proceeded to rape me.

17 Q

You say he had an ink pen. Where did he get that?

18 A

It was mine.

19 Q

And what about the razor blade, tell the judge where

20 Mr. Martin got the razor blade?

21 A

Shower nights, they would issue a Bic, disposable

22 yazor. You could hit the razor with a shoe, and inside you

23 j^ave a single edge razor, a n d —

24 Q

Was that the kind of razor blade Mr. Martin had?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

272

1 Q

Now, did you attempt to call out to the guard?

2 A

No. Because I was scared. He told me if I called to

3 the guard, or I raise any type of fuss, that is not his

4 words, fuss, if I call for the officer, before the officer

5 can get through the main gate, and come to my cell, and get

6 me out, he would kill me.

7 Q

Did you believe him?

8 A

Yes.

9 Q

How did Mr. Martin use the razor blade and the ink

10 pen?

11 A

Razor blade he held up to the left side of my neck,

12 and the pen to the right side. He said if I moved, he

13 would cut my juggler, and move the pen through my neck.

14 Q

This is when you were laying in the bunk?

15 A

Yes.

16 Q

What time of night was this?

17 A

After 12 o'clock.

18 Q

After he put the razor blade and ink pen in your

19 neck, did he do anything to you?

20 A

Yes, he snatched my boxers off.

21 Q

You are talking about your underwear?

22 A

Yes.

23 Q

What, if anything, did he do next?

24 A

I felt a liquid substance running down between the

25 crack of my buttocks. Next thing I know, he was inserting

Pauline A. Stipes Official Federal Reporter

£73

1 his penis in my anus~

2 Q

When you say liquid substance, did you know what that

3 was?

4 A

j^ater on I found out it was baby oil,.

5 Q

Now, after this incident, did —

6

MR. AMLONG: Your Honor, at this point, I would

7 like to introduce as an official record of Department of

8 Corrections a composite plaintiffs' Ex. No. 10 which is a

9 memo from the institutional inspectors, Peters to Mr.

10 Lambdin, concerning the rape which has appended to it

11 incident reports signed by Officer Freddy Garrett, by

12 Officer Brown, Officer Clark, and Officer Taylor, and which

13 also has as part of this package an emergency room record

14 from the Glades Correctional Institutional, emergency room

15 ffhere Mr. White was eventually taken, and I would note for

16 the record—

17

THE COURT: Do you have any objection, Mr.

18 Davis to this document? Have you seen it?

19

MR. DAVIS: Your Honor, we don't. I think

20 there is a misrepresentation in respect to the Glades

21 Emergency Room record. I don't see one.

22

MR. AMLONG: This is the one I showed Mr.

23 Meginniss.

24

MR. DAVIS: If you look at the top, that is not

25 Glades Emergency Room. That is the prison.

Pauline A. Stipes Official Federal Reporter

74

1

THE COURT: You don't have any objection?

2

MR. DAVIS: No.

3

THE COURT: It is received without obiection.

4 It speaks for itself.

5 (Plaintiffs' Ex. 10 received into evidence.)

6

MR. AMLONG: You have seen the highlighting I

7 have done, correct.

8

MR. MEGINNIS: Yes.

9 BY MR AMLONG:

10 Q

Mr. White, after this incident, what happened next?

11 A

rRouqhly an hour, 45 minutes later, the rape was

12 repeated aqain.

13 Q

Had a quard patrolled at that time?

14 A

No, sir.

15 Q

What time was this?

16 A

Rouqhly between 1 and 1:30 in the morning the second

17 time.

18 Q

After the second rape, what, if anything, happened?

19 A

Yes, it happened again.

20 Q

What time was that?

21 A

The same amount of time, an hour, hour and a hal^f

22 later •

23 Q 24 A

Did anything happen after that? No, sir.

25 Q

Did Mr. Martin tell you to do anything?

Pauline A. Stipes Official Federal Reporter

275

1 A

He told me to lie face down on the bed, if I got up,

2 hollard for the officer, if I was to see the officer, I was

3 not to say nothing, act like I was asleep. If I thought he

4 was playing, if I hollard for the man, he would kill me.

5 Q 6 A

tDid he give you any other instructions? Yes, after that, he asked me to shit. He said shit,

7 and shit your best. I had diarrhea, I was scared.

8 Q

Did you have a bowel movement?

9 A

I had various bowel movements,

10 Q

jDid you attempt at any time to report this to a

11 correctional office^?

12 A

Yes, later that morning, roughly about 9 o'clock int

13 the morning, we went to what is called recreation. Dannrv

14 Ray Martin went out when I did, every time I got near the

15 officer, Danny Martin was standing with a 10 pound dumb

16 bell near me. He told me if I told the police, he would

17 get me before they would.

18 Q

When you talk about the police?

19 A

The correction officer.

20 Q

That is slang for the guards?

21 A

Yes.

22 Q

Were you able to tell the correctional officer during

23 weight lifting time?

24 A

No. sir.

25 Q

What happened next?

Pauline A. Stipes Official Federal Reporter

576

~A LWe went back to the cell, and I started grabbing my

2 stomach, and bending over saying I was getting stomach

3 cramps, finally, I convinced him he was in pain. He

4 .hollard for the police, called him down, and Officer

5 Garrett took me out to the infirmary.

6Q

What did they do at the infirmary?

7A

On the way to the infirmary, I told Officer Garrett,

8 told him that I had been raped, and he took me to the head

9 doctor, and the doctor asked me what happened, and told me

10 I was raped. He asked me to strip, and I stripped, and he

11 pulled the cheeks to my buttocks apart, and he said

12 something has happened, schedule him to see the outside

13 doctor immediately.

14 Q

Are you a homosexual, Mr. White?

15 A

Np_, I am not.

16 Q

rPrior to this time with Mr. Martin, did you ever

17 engage in anal sex?

18 A

No, sir.

19 Q

After the doctor looked at your rectum, what happened

20 next?

21 A

He told me to get dressed. I got dressed, and they

22 ^ook me to an outside hospital somewhere in Belle Glade. I

23 don't remember the name of it. The doctor there, we waited

24 about three hours before the doctor showed up. He put

25 latex gloves on, done a finger probe, and stuck a Q-tip in

Pauline A. Stipes Official Federal Reporter

£77

1 II my rectum, and I was brought back to the institution,

2 Q

Now, djd. there come a time that you had a

3 conversation with Lt. Peters?

4 A

J. had wrote Lt. Peters what they call a kite

5 Q

Kite?

6 A

Yes, k i t e , slang for note, letter, whatever. I

7 told him that I needed to see him immediately. It was

8 extremely important. I gave that to Officer Garrett.

9 .Preceding my time talking to him, Office r Garrett told me

10 £hat he qave it to Mr. Peters I never seen Mr. Peters

11 after that

12 0

When you were still in the cell wi th Mr. Martin, you

13 attempted to get a note to Mr. Peters?

14 A

Yes, to tell him what happened.

15 Q

Tell the judge who Mr. Peters is.

16 A

He is institutional inspector for Glades Correctional

17 Institution.

18 Q

Does that mean he is the one who handles the

19 complaints like this?

20 A

Any institutional operations.

21 Q

After you came back from the hospital, did you have a

22 conversation with Lt. Peters?

23 A

Yes, I was pulled across the street, I spoke to him,

24 and some outside detective. I don't remember his name.

25 Q

Now, did you tell Lt. Peters, or the outside

Pauline A. Stipes Official Federal Reporter

•78 1 detective whether or not you wanted to press criminal

2 charges against Danny Ray Martin?

3 A

Yes. I did.

4 Q

And what was their response to that?

5 A

Both of them, their exact words were, there will be

6 no case, because you s h i t —

7

MR. MEGINNISS: Objection, we have been sitting

8 here long enough listening to this.

9

MR. AMLONG: May I respond?

10

THE COURT: Yes.

11

MR. AMLONG: As far as Lt. Peters goes is the

12 statement of an agent, party opponent within the scope of

13 his agency.

14

THE COURT: All right. What about the other?

15 I will overrule the objection on that ground as to Lt.

16 Peters, and sustain it as to the other.

17 BY MR. AMLONG:

18 Q

What did Lt. Peters, not the detective, what did Lt.

19 Peters tell you?

20 A

Lt. Peters told me that he would leave all the

21 decision up to the outside detective. He told me he did

22 not think I could pursue the case because I shit all the

23 evidence out.

24 Q

.Did you direct Lt. Peters to any other evidence?

25 A

Yes, I.told him on the mattress sheet itself had a

Pauline A. Stipes Official Federal Reporter

>79 ~1 stain, I would say roughly six inch diameter circle of baby 2 oiljL. a n d sperm,.

3 Q

Do you know whether or not they found the baby oil in

4 the cell?

5 A

The baby oil was found, razor blade was found, and

6 tthe ink pen was found. Officer Garrett told me that,.

7 Q

Now, were you upset at this point?

8 A

Very.

9 Q

Did anybody ever tell you that you could see a

10 psychologist, or see Dr. Medina, the staff psychiatrist?

11 A

JNo, sir, when I was brought back from Mr. Peters

12 office to the inside institution, they was waiting for me.

13 and gave me some type of liquid, told me it was a sedative..

14 That was the last thing they ever gave me, and then I was

15 transferred.

16 Q

Did you have any conversation, any therapy with a

17 psychiatrist or psychologist about this incident?

18 A 19 Q

No. sirT Do you have any feelings, any experiences now that

20 you did not have prior to the incident with Mr. Martin?

21 A

A lot. I still experience up to this date very bad

22 dreams about this. I wake up screaming.

23 Q

Tell the judge what you dream?

24 A

The recurrence of the rape, grabbing my rectum, and

25 holding it, and screaming.

Pauline A. Stipes Official Federal Reporter

>80

1 I! Q

Somebody else grabbing your rectum, or you?

2 A

I wake up grabbing my rectum, screaming. I dream of

3 him.

4 Q

Where did they move you to?

5 A

One cell next to him.

6 Q

You have been transferred to Martin County?

7 A

Yes, Martin Correctional Institution.

8 Q

The nightmares continue?

9 A

Yes, they do.

10 Q

Have you ever seen a psychologist or psychiatrist

11 about those nightmares?

12 A

No, I haven't. A week and a half ago, I wrote a

13 request in the psychological department requesting to see

14 someone.

15 Q

You do want to see someone?

16 A

Yes, I do.

17 Q

Would you have wanted to see somebody at Belle Glade

18 that day?

19 A

Would I if they offered it?

20 Q

Yes.

21 A 22 Q

Yes, I would have. For the record, because people can't see you like the

23 judge can, what is your race?

24 A ,My race, half Mexican, and half White.

25 Q

What about Mr. Martin?

Pauline A. Stipes Official Federal Reporter

281

~T A

He is Whfte^

2

MR. AMLONG: Your Honor, no further questions

3 of Mr. White at this time.

4

THE COURT: Cross-examination.

5

CROSS-EXAMINATION

6 BY MR. MEGINNISS:

7 Q

Mr. White, the next to the last question asked you by

8 counsel was that you wrote out a request for some sort of

9 psychological counseling or treatment?

10 A

That is true.

11 Q

And that was within the past two weeks?

12 A

XJL5' it: was.

13 Q

This rape occurred, alleged rape, back in April,

14 1989?

15 A

Yjejs.

16 Q

So it took you 9 months to write that request?

17 A Yes.

18 Q

Is there any reason for that?

19 A

For the last 9 months I have been working anywhere

20 from 8 to 16 hours a day.

21 Q

What are you doing?

22 A

I used to work for housing five, laundry man.

23 Q

So, during that period, you didn't have any need for

24 psychological assistance?

25 A

By the time I come home, I was too dead tired to do

Pauline A. Stipes Official Federal Reporter

£82

1 anything but sleep.

2 Q

Now, this, according to my records from that which

3 your counsel passed to me which is a report dated April 20,

4 1989, indicates that you were allegedly raped at 3:40 a.m.

5 in the morning, on the 4th of April, 1989. Jiow many times

6 were you raped? What is your claim?

7 A

My claim?

8 Q

Twice?

9 A

Three times.

10 Q

Well, your deposition was taken, and you indicated

11 twice. Is that in error? It was three times rather than

12 twice?

13 A

It was three times, yes.

14 Q

Even though on your deposition you testified it was

15 only twice?

16 A

I might have said that.

17 Q

All right. And the report that was handed to me

18 indicates that it was done twice. Any reason for that

19 desparity?

20 A

I don't know the report you are talking about.

21 Q

This is the report handed by your counsel?

22 A

The institution is liable to tell you anything.

23 Q

You would disagree to the accuracy of this report?

24 A

I disagree to a lot of accuracy of Lt. Peters'

25 statements.

Pauline A. Stipes Official Federal Reporter

283

1 Q

And you indicated in your deposition, and also on

2 your testimony today that drugs were out there, and you

3 used them, and you used them at Glades Correctional?

4 A

I stated I used marijuana.

5 Q

Well, ffou did use marijuana at Glades Correctional.

6 did you not?

7 A

Ye_s, I did.

8 Q

Did you ever get caught?

9 A

I got caught one time. Not using it.

10 Q

What happened?

11 A

I was issued a disciplinary report for possession of

12 narcotics, an Officer Powell found a sack of marijuana

13 under my bed.

14 Q

And that is the only time you were ever caught at it?

15 A

I was not caught smoking it.

16 Q

You were not caught smoking, you were caught with

17 possession?

18 A

No. I was not caught with possession, a small bag of

19 marijuana was found under my bed.

20 Q

Would you like to have your memory refreshed? I have

21 the disciplinary report here, and it indicates you pleac}

22 guilty, would you like to see it?

23 A

I know what I plead. I was also removed to 60 days

24 disciplinary confinement.

25 Q

So there i s —

Pauline A. Stipes Official Federal Reporter

>84

1 f| A

I have a mandamus in my cell at Martin Institution to

2 have that lifted.

3 Q

You haven't filed it yet, is that what you are

4 saying?

5 A

That is right.

6 Q

It has been a pretty good while ago.

7

Now, let me ask you this: You say you were in Cell

8 No. 5 and that your roommate, or your cellmate named Danny

9 Martin, you objected to?

10 A

Yes, I did.

11 Q

Did you object to Cell 5 before they put you there in

12 the first place?

13 A

That was the first cell they put me in.

14 Q

And that is where you stayed until after the incident

15 you are talking about?

16 A

Yes.

17 Q

Now, you indicated that Mr. Martin had you kneel?

18 A

Had me who?

19 Q

Kneel, or lie flat?

20 A

Yes, I was lying on my bed when he made the comments

21 to me.

22 Q

Then he had a razor blade?

23 A

Yes.

24 Q

By putting that up to your neck, you were forced to

25 pull your pants down?

Pauline A. Stipes Official Federal Reporter

>85

1 II A

No. He pulled my pants off"

2 Q

That takes two hands?

3 A

No.

4 Q

Are you sure?

5 A

No. Positive. Xliey issue boxers very big on people..

6 Q

Okay. Let's go one more time. This incident report

7 which has been filed by your counsel indicates there is an

8 affidavit on here signed by a Correctional Officer Brown,

9 and he says he made a complete tour of the confinement area

10 three or four times or more that night, and you did not

11 once talk to him, and did not once try to report it to him,

12 and he passed right by your cell?

13 A

That is his word against mine.

14 Q

Is there any reason why we should not believe this

15 official record?

16

MR. AMLONG: Objection, argumentative.

17

THE COURT: Objection sustained.

18 BY MR. MEGINNISS:

19 Q

Okay. Now, this report also says, and contradictory

20 to what you testified on direct that when they went back to

21 search your cell after you reported that there were razor

22 blades, fountain pen, and what have you, the only thing

23 they could find — excuse me a moment.

24

That the only thing they could find at the crime

25 scene was the bottle of Johnson baby oil, the linens were

Pauline A. Stipes Official Federal Reporter

586

not stained, arid they found no razor blades or pen?

told you what Officer Garrett told me. When I came

back, my things were moved from 5 to 6. He said Inmate

White, I found the razor, the pen, and we got the sheet.

And Mr. Peters will be here to testify tomorrow

saying they found nothing but the baby oil. You disagree

with that?

8 A

Yes.

9

MR. AMLONG: Objection, Your Honor.

10

THE COURT: Objection sustained. Just ask him

11 questions, don't tell him what Mr. Peters is going to say.

12

THE WITNESS: Your Honor, could I make a

13 statement?

14

THE COURT: No. Just answer the questions as

15 succinctly as you can.

16 BY MR. MEGINNISS:

17 Q

Were you ever in protective custody or administrative

18 confinement at Glades Correctional Institute prior to this

19 period when this incident occurred?

20 A

No, sir.

21 Q

And how long had you been there before then, before

22 you were put in?

23 A

Put into protective confinement?

24 Q

Yes.

25 A

Roughly a year. I am not sure of the exact dates.

Pauline A. Stipes Official Federal Reporter

£87

T~ Q

Okay, no further questions.

2

THE COURT: Redirect?

3

MR. AMLONG: No, Your Honor.

4

THE COURT: All right, sir, you are excused.

5

(Thereupon, the witness was excused.)

6

MR. LIPMAN: We have a second inmate, Mr.

7 Dennis. Could you excuse Mr. Saunders during this

8 testimony?

9

THE COURT: All right.

10

(Thereupon, Mr. Saunders left the courtroom.)

11

MR. AMLONG: Your Honor, I need to advise Mr.

12 White about the rule being invoked.

13

THE COURT: You certainly do.

14

Have you advised Saunders about the rule?

15

MR. LIPMAN: Yes, I talked to him.

16

THE COURT: When I said he could be excused. I

17 was referring to Mr. White. You have some reason why he

18 was excused.

19

MR. LIPMAN: The next witness requested that

20 during his testimony that no inmate be in the courtroom.

21

THE COURT: All right.

22

MR. LIPMAN: I agreed to that request.

23

Mr. Dennis.

24

ARNOLD DENNIS, PLAINTIFFS' WITNESS SWORN

25

THE COURT: Please be seated. State your name

Pauline A. Stipes Official Federal Reporter

>88

T

THE WITNESS:Arnold Dwane Dennis.

2

MR. LIPMAN: Please keep your voice up,

3

MR. LIPMAN: Mr. Dennis —

4

THE COURT: What was the name again?

5

THE WITNESS: Arnold Dwane Dennis.

6

THE COURT: Go ahead.

DIRECT EXAMINATION

8 BY MR. LIPMAN:

9Q

Are you currently incarcerated within the Department

10 of Correction System in the State of Florida?

11 A

Yes, sir.

12 Q

Sir, where are you incarcerated? What institution

13 are you presently incarcerated at?

14 A 15 Q

Martin Correction.

. ^ i ...I

_.

„_

,

And jiow long have you been incarcerated at Martin?

16 A

One week.

17 Q

How much longer do you have to serve in the

18 correction system?

19 A

Four months.

20 Q

And then you will be out?

21 A

Yes.

22 Q

You have no other pending charges?

23 A

No, sir.

24 Q

All right. .Have you ever been incarcerated at Glades

25 Correctional Institution?

Pauline A. Stipes Official Federal Reporter

£89

2 Q

And could you tell His Honor what period of time to

3 the best of your recollection you were incarcerated at GCI?

4 A

From approximately beginning of January, 1986, until

5 May or June, possibly July, 1986,

6 Q

Did an incident occur to you while you were

7 incarcerated at GCI?

8 A

Several.

9 Q

And could you explain to His Honor what happened?

10 A

.Some time around the beginning of February, or end of

11 January, 1986, I was on my way to the bathroom where I went

12 tp the bathroom in the dorm I was being housed inf dorm B. 13 It was approximately two ofclock in the morning, and when I

14 went to the bathroom and sat down to use the bathroom, I

15 used the bathroom, and I^began to get up, and go back to my

16 bed, and two inmates came into the bathroom area and one of

17 them said something to me to the effect to be quiet, and

18 not to say anything, not to yell, and the other inmate

19 grabbed me around the neck, and then around the waist, and

20 made me bend over, and the other inmate sexually assaulted

21 jag..

22 Q What did the other inmate do?

23 A

He pulled down my boxer shorts, and raped me.

24 Q

Did you try to get free?

25 A

At first I did, but I couldn't get loose from him.

Pauline A. Stipes Official Federal Reporter

290

They were ~

2 Q

Do you know the race of the inmate that raped you?

3 A

Yes.

4 Q

What was his tace?

5 A

They were both black males.

6 Q

For the record, what is your race?

7 A

White.

8 Q

Were they bigger than you?

9 A

Considerably.

10 Q

Do you know how long the rape incident took place?

11 A

About five or 10 minutes.

12 Q

What do you then recall happening after that had been

13 completed?

14 A

The inmate who actually assaulted me, actually raped

15 ffie, he took something frqm the waistband. I can't remember

16 if he had pants on, or if he just had shorts on, but he had

17 a. brush, a pointed brush, plastic, it was either yellow or

18 brown, a light colored brush, and he made sure that I seen

19 it. Like when the other inmate was holding me, I begin to

20 come up, and he didn't let go of me. He took the brush,

21 and he rammed it into me, and told me if I told anybody

22 what was going to happen to me, that I was going to get

23 worse, that he would get me.

24 Q

Where did he ram the brush into you, what part of

25 your body?

Pauline A. Stipes Official Federal Reporter

1 A

Into my anus.

2 Q

JB& you know what then occurred?

3 A

Yes. J bled, and it tore me a little bit.

4 Q

Did the assailants then leave you in the shower area,

5 toilet area?

6 A

Yes.

7 Q

And then dj^d you return to your bunk?

8 A

Not right away. I sat back down on the toilet

9 because I was bleeding.

10 Q

Do you recall how long you sat on the toilet?

11 A

Just, I don't know, a few minutes.

12 Q

Did you then return to your bed?

13 A

Yes.

14 Q

While this was occurring while you were raped, do you

15 remember, .did you see where the officers were?

16 A

No. sir. I didn't see an officer. I assume he was in

17 the wicket.

18 Q

Had you ever seen the two inmates that had raped you,

19 the one that raped you, and the other one with him before

20 that evening?

21 A

The inmate who actually did this to me had been

22 bothering me for days , and later the next day he attacked

23 me again. The other inmate, I don't know who he was.

24 Q

All right. The inmate that actually raped you, how

25 had he been bothering you for days?

Pauline A. Stipes Official Federal Reporter

192

"A

lie would come to the bunk that I slept at, and he

2 would tell me to be his boy, or whatever, and nobody else

3 would bother me. He would take me up under his wing, all

4 that kind of thing, and tell inmates when they try to scare

5 him.

6Q

What did you tell him?

7A

I asked him to leave me alone, and bother somebody

8 else, to pick on somebody his own size.

9Q

Had you ever had homosexual activities with any other

10 inmate while you have been incarcerated?

11 A

Never in my life.

12 Q

Did you complain to, or tell any of the officers

13 before you had been raped that this inmate had been

14 bothering you?

15 A

I didn't specify to the officer who exactly was

16 bothering me, because he wasn't the only one, but I went to

17 the officer, and told him that several inmates were

18 harassing me, and you know I — what should I do, or, you

19 know, can I have protective custody so that nothing happens

20 to me. I didn't understand why I was in this type of

21 environment, and he told me nothing could be done until

22 there was some positive proof, something, that, you know,

23 could be seen that I am actually in danger.

24 Q

W,as that officer assigned to B dorm?

25 A

Yes_.

Pauline A. Stipes Official Federal Reporter

>93

1 Q

Do youT know hTs name?

2 A

No, sir, I don't.

3 Q

Now, you said that after the rape occurred there was

4 another incident with the inmate that had assaulted you. 5 Could you explain what happened, and when that happened?

6 A

Well, the following day, after this happened, I

7 stayed in my bunk all that day, and that night, he came

8 around my bunk, him, and a couple other guys, and they were

9 saying things to me, and messing with me, so I got up, and 10 I went in the T.V. room to try to ignore them, to try to 11 get away from them, and he came up to me all by himself.

12 There was nobody else with him.

13

He came up to me, and he said come around here. He

14 wanted me to follow him around the wall that separates the

15 television and benches from the table and other benches

____________________

\

16 where you write or play games, and I said no, I said flat

17 put no, I am going nowhere with you, and he stepped away

18 from from me. I continued to watch the television. I

19 wasn't watching around me, and he came up out of nowhere

20 from beside me, and punched me in the face, and cut my face

21 underneath my right eye, and I went to the officer and told

22 him what happened, and he told me to point the guy out and

23 I did, and he said, well, go on in there and fight him, and

24 ,get it over with, and he won't bother you know more. He

25 said show him you are a man, and fight him, ain't nobody

Pauline A. Stipes Official Federal Reporter

£94

1 going to get a PR?

2

I said I am trying not to do that. I am trying to

3 get out of prison. fI refused to fight him, so he locked me 4 in the wicket until a couple sergeants arrived, and took me

5 to medical.

6 Q

Was the officer that told you to go fight the inmate

7 that had raped you the same officer that you had told that

8 that inmate was bothering you?

9 A 10 Q

No, sir. po you know the second officerfs name that told you

11 to go fight?

12 A

Np_, sir.

13 Q

When you were taken away from the wicket, did you

14 receive medical attention for your eye?

15 A

Yes.

16 Q

And what was the nature of the medical attention?

17 A

I got five stitches underneath my right eye.

18 Q

What then happened? Where did you go?

19 A

Well, after I identified him positively, because they

20 only took me out, the officer didn't bring him forward or

21 anything. One of the officers took me to the control room,

22 and I identified him from photos, and they put me in

23 protective custody.

24 Q

How long did you remain in protective custody?

25 A

For the remainder of the time I was there except for

Pauline A. Stipes Official Federal Reporter

>95

TT about a couple weelcs. A lieu tenant came to me and told me

2 that he would place me on the medium and minimum side of

3 the institution, because I was medium custody when I

4 arrived. He would put me on the medium and minimum side of

5 the institution, if I would check out, if I would come out

6 of protective custody, but I didn't realize the only thing

7 on the medium and minimum side of the institution was the

8 ^sleeping area. There was no meals, canteen or medical

9 ^attention, or anything on that side of the compound.

10

So I tried to hang with it as long as I could until I

11 was, you know, approached again by other inmates, other

12 blaqk inmates, so I wound back in protective custody. I

13 was transferred to Marion Correctional 40 days from my EOS

14 ,dater and T wag aH-arkprf again by the same inmate a third 15 time in the van on the way to Marion Correctional. They

16 transported him, transferred him with me in the same van,

17 and he attacked me in the van, before we left Glades

18 Correctional, the main compound. He attacked me in the

19 yan. and when I got there, and told them what happened,

20 they locked him up, and put me in protective custody on the

21 spot.

22 Q

Did you ever tell any of the officers, or authorities

23 at fUades. or anywhere that you had been raped?

24 A

No. sir, I didn't.

25 Q

Why is that?

Pauline A. Stipes Official Federal Reporter

296

1 A

It was just an embarrassing, too upsetting to s"ay

2 anything • J^ was afraid to say anything about it. I didn't

3 think it would do any good anyway.

4 Q

,FfrE t-haf t-itne while you were at D dorm at Glades, do

5 you remember whether the officers would patrol the dorm

6 outside the wicket?

7 A

Yes, I can't say I never seen them walk around in the

8 dorm, but it wasn't very often at all. If they did, they

9 come out, and the majority of the time they go straight in

10 the T.V. room, but they would walk from one end of the dorm

11 £o the other occasionally, you know, but it just wasn't

12 enough to prevent things from happening that happen.

13 Q

You are White?

14 A

Yes.

15 Q

Your race?

16 A

Yes.

17 Q

All right. I have no other questions.

18

I didn't tell you this when I interviewed you, the

19 rules of the court are, you are not permitted to discuss

20 your testimony when you are finished with any of the other

21 inmate witnesses, or for that matter with anyone else, all

22 right?

23 A

Yes.

24

THE COURT: Questions, Mr. Meginniss.

25

Pauline A. Stipes Official Federal Reporter

597

~~O

CRO S S - EXAM I NAT I ON

2 BY MR. MEGINNIS:

3 Q

Mr. Dennis, you were at Glades for about five months,

4 '86, January to May. Now, this one incident you related,

5 you say you did not at any time report that to any of the

6 officers, is that your testimony?

7 A

Yes.

8 Q

As a matter of fact, have you ever reported it to

9 anybody before being contacted for this trial?

10 A

Yes.

11 Q

To whom?

12 A

To my parents.

13 Q

But no one in the Department of Corrections or the

14 State of Florida?

15 A

No, sir.

16 Q

With respect to the assault, the physical assault,

17 you say it took place in the T.V. room?

18 A

Yes.

19 Q

Was there an officer in there at that time?

20 A

No, sir, he came in right after it happened.

21 Q

At that time,vyou didn't identify your assailant?

22 A

Yes.

23 Q

pid you know him by name?

24 A

Just his nickname. Red.

25 Q

And you positively identified him to the officer?

Pauline A. Stipes Official Federal Reporter

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__j _

___

2 Q

You went to the clinic, or infirmary, and they gave

3 you stitches. You came back. Did you ever see Red again 4 after that?

5 A

After I was given stitches, I did not go back. I was

6 taken into protective custody. Yes, I did see Red after

7 that, in the van on the way to Marion Correctional.

8 Q

jpid you advise anybody in the van driving the van —

9 A

Yes, I did.

10 Q

Who did you advise?

11 A

The officers who were transporting that day.

12 Q

Are those officers with Glades?

13 A

They were with the Department of Corrections. They

14 worked for Glades Correctional.

15 Q

Do you know their names?

16 A

No, sir, the day I was transferred, the record will

17 show who the two transporting officers were, and I told

18 them before they close that door that inmate was the reason

19 that I was being transferred, and he was the one who

20 attacked me, and they said, he ain't going to mess with

21 you. He ain't going to bother you, but it was pouring down

22 rain, it was storming, the water was coming down, and all

23 fchey wanted to do is close the door, and they could not see

24 inside the van.

25 Q

And when you got to—where were you going, Marion?

Pauline A. Stipes Official Federal Reporter

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~TT A

Yes.

2 Q

You went into PC at Marion?

3 A 4 Q

Yes. Do you know what happened to Red?

5 A

No, sir, I don't.

6 Q

Do you know if he were ever assigned to Marion while

7 you were there?

8 A

I know he was assigned to Marion while I was there.

9 He got ought of the van. All of us that were in the van

10 were transferred to Marion Correctional, and he was one of

11 them.

12 Q

Are these the only incidents you had, then, of

13 physical assaults while you have been incarcerated?

14 A tyot while I have been incarcerated, no, sir.

15 Q

There were others?

16 A

Yes.

17 Q

Where?

18 A

Once at Polk Correctional where I was transferred

19 from to attend this trial.

20 Q

Any others?

21 A

Not to the best of my knowledge.

22 Q

How long were you at Polk before you came here?

23 A

Approximately two years.

24

MR. MEGINNIS: No further questions.

25

THE COURT: Redirect?

Pauline A. Stipes Official Federal Reporter

$00

Til

MR. LIPMAN: No, your Honor.

2

THE COURT: All right. You are excused.

3

(Witness excused.)

4

RM. LIPMAN: Saunders can come back in,

5

(Mr. Saunders returned to the courtroom.)

6

JOSEPH JOHN HAVEARD, PLAINTIFFS' WITNESS SWORN

7

THE COURT: State your name.

8

THE WITNESS: John Haveard.

9

MR. TUCKER: Thank you, Your Honor, I am James

10 Tucker, plaintiffs' counsel for plaintiff class.

11

DIRECT EXAMINATION

12 BY MR. TUCKER:

13 Q

Are you currently a prisoner in the Florida

14 department of Corrections?

15 A

Yes.

16 Q

Where are you currently housed?

17 A

Right now?

18 Q Yes.

19 A

Martin Correction.

20 Q

That's a permanent assignment?

21 A

No, sir.

22 Q

Where are you permanently housed?

23 A

Aery West.

24 Q

Where is that?

25 A

It is in Sneads, Florida, a correctional institution.

Pauline A. Stipes Official Federal Reporter

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T~ Q

Have you been previously incarcerated at Glades .

2 institution?

Yes.

4 |Q

Approximately when were you incarcerated in Glades?

5 A

.'86,

6 Q 7 A

Approximately how long were you at Glades?s Four months.

8 Q

Do you remember approximately when in '86 you

9 arrived?

10 A

Not really, I believe October.

11 Q

Okay. When you arrived, what happened when you got

12 there?

13 A

Well, I was rapecj.

14 Q

How long after you arrived at Glades were you raped?

15 A

About two weeks.

16 Q

Can you tell His Honor how the rape occurred?

17 A

Yes, this guy Goldie approached, a black guy, he

18 offered me cigarettes. I thought he was nice. A week later

19 he approached me with a knife in his pocket, and told me he

20 wanted to rape me, or he would stab me. He took me to a 21 closet in the library , and that is where it occurred at. I 22 was afraid , I didn't know if he was going to stab me or

23 what..

24 Q

Do you know his given name?,

25 A

.No,' sir.

Pauline A. Stipes Official Federal Reporter

$02

1 II Q

Approximately how long after you arrived at Glades^

2 how much time passed ^eforp y m i m p t Goldie?

3 A

It was the first day.

4 Q

What did he say?

5 A

He was real nice, how you doing, where you from, and

6 jE told him.

7 Q

Did actions of that sort continue on the part of

8 Goldie for approximately how long?

9 A

Aboutfc&g_weekjs.

10 Q

After two weeks had passed, what happened when you

11 next met Goldie again?

12 A

That is when he approached me, and told me he wanted

13 to rape me, or have sex with me, is what he said.

14 Q

Did he tell you why?

15 A

No, sir.

16 Q

Did he say anything to you before he said I am going

17 to rape you?

18 A

No, sir.

19 Q

Okay. Where were you when you were approached by

20 Goldie?

21 A

I was in front of the school house locker.

22 Q

Approximately what time of day was it?

23 A

Morning time. It was on a Saturday .

24 Q

Okay. .Were there any guards around?^

25 A

On. sir.

Pauline A. Stipes Official Federal Reporter

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1 II Q

And what did Go 1 aie do?

2 A

Well, he told me he had a knife in his pocket, and if

3 I didn't — excuse me, if I didn't agree to it that he was

4 going to stab me right then.

5 Q TDid he show you a knife? 6 A ffe had one in his pocket. You could see the outline.

7 Q

Did you see it?

8 A

Yes.

9 Q

Can you describe the knife?

10 A

It was about so long (indicating).

11 Q Approximately how long?

12 A

About six inches long.

13 Q

Okay. And after he showed you the knife, how did you

14 respond?

15 A

I was scared. I was shaking all over. I didn't know

16 if he was going to stab me or what.

17 Q

Had you ever been in a Department of Corrections

18 prison prior to your arrival at Glades?

19 A

JvFp, sir.

20 Q

Approximately what was your age when you arrived at

21 Glades?

22 A

I believe I was 25 or -6.

23 Q

For the record, what is your race?

24 A

White.

25 Q

After Goldie showed you the knife, what happened?

Pauline A. Stipes Official Federal Reporter

&04

~A

Well, he told me tfiere was a place that we could go

2 to that nobody would see us, and he, therefore, led me into

3 the library, and went to a closet, and that is where it

4 happened.

5Q

Were there any guards anywhere on the grounds between

6 the time when you first saw the knife, and when you went

7 into the library closet?

8A

No, sir.

9Q

(Were there any guards in the library?

10 A

Yes, there is one in the library, but off to the

11 side, you canft see anything unless you go into the

12 library.

13 Q

Was there a window?

14 A

No, sir.

15 Q

Was the door opened or closed?

16 A

It was open.

17 Q

Now, when you went into the library, did Goldie tell

18 you where to go, or what did he do?

19 A

Yes, he told me there was a closet at the end of the

20 hallway, and that is where we were going to go at.

21 Q

Did you go into the closet with Goldie?

22 A

Ye_s.

23 Q

Why did you go in there with Goldie?

24 A

Because he told me that is where he was going to rape

25 me.

Pauline A. Stipes Official Federal Reporter

505

1 Q

Did you believe his threats?

2 A

Yes, I was scared. This is the first time in prison.

3 He was bigger than I was. I didn't want to get stabbed.

4 Q

Did you believe he would stab you if you didn't go

5 into the closet?

6 A

Very much so, yes.

7 Q

What happened after you went into the closet?

8 A

He had baby oil with him, or some kind of lubricant.

9 I don't know what it was. It smelled like baby oil. He,

10 told me to pull my pants down, and I did, and he pulled his

11 down, and started raping me.

12 Q

Where did he rape you?

13 A

In my anug,

14 Q

Approximately how long were you in the closet with

15 Goldie?

16 A

jLO or 15 minutes.

17 Q

Was t.he ploset door opened or closed?

18 A

It was _closed.

19 Q

Was there a light in it?

20 A

No^ sir.

21 Q

When the rape actually occurred, did you feel pain?

22 A

Yes, very much.

23 Q

Could you describe that?

24 A

,It hurt like nothing that shouldn't happen. It hurt.

25 Q

Had you ever felt pain like that before?.

Pauline A. Stipes Official Federal Reporter

106

~~I A No, sirT

2 Q

Have you ever participated in any homosexual acts

3 with inmates?

4 A

No, sir, none whatsoever.

5 Q

Before this time?

6 A

No, sir.

7 Q ,ftfte.rthat time?

8 A

No, sir.

9 Q

How did you leave the closet, what happened?

10 A

Well, when he was through, he left first, and told me

11 I^o wait a few minutes, and I waited, and started crying. I

12 was still scajred. I didn't know if he would be waiting for

13 me outside or what. I waited a few minutes, and I left,

14 and went to the dorm, and I used the bathroom. There was a

15 little blood, and I went to my bunk and stayed there for

16 the rest of the day. I didn't even go eat.

17 Q

Why did you go to the dorm and stay in the bunk?

18 A

I was scared. I didn't want to go on the compound.

19 Q

Did you see Goldie the rest of that day?

20 A Jla, sir.

21 Q

How did you feel when you went to the dorm and laid

22 in the bunk?

23 A

I felt like I had been cheated out of part of my

24 life, something had been taken away from me that shouldn't

25 have been.

Pauline A. Stipes Official Federal Reporter

B07

1 Q 2 A

Have you ever felt that way before? No, sir.

3 Q

.Following the end of the day when the rape occurred,

4 did you check into protective confinement?

5 A

No. sir, I stayed maybe two weeks.

6 Q

And why did you do that?

7 A

Well, I thought maybe it would blow over. This is

8 the last that was going to happen. Word got around, people

9 started whistling at me, and I couldn't handle it. I had

10 nightmares about it. I wanted to go home, and I couldn't^

11 handle it anymore, I checked into PC.

12 Q

What did you do in order to check into PC?.

13 A

I told him that I was in fear of my life. I wanted

14 to talk to someone higher up in the ladder before I told

15 them what happened.

16 Q

Did you tell anyone?

17 A

Yes, Major Pipta. I wrote him a letter while I wa§

18 in confinement, and he seen me the following day.,

19 Q

You wrote him a letter after you had been placed in

20 protective confinement?

21 A

Yes, I wrote him a letter.

22 Q

After you had written the letter to Col. Pipta, was

23 there an investigation of the incident?^

24 A

When I went to see him, there was an investigator

25 with me, Investigator Peters, or Peterson, and they said

Pauline A. Stipes Official Federal Reporter

508

1 I lhat ^tHey read the letteT, and GoTdie had been shipped"

2 because he raped someone else, he had been shipped from the

3 camp. They asked his real name, and I told them I didn't

4 know his real name, and we went through the details what

5 happened. After that, I was put back into protective

6 confinement.

7 Q

How long did you stay in protective confinement?

8 A

About three months.

9 Q

Can you describe the conditions of protective

10 confinement?

11 A

It is dirty, hot. The conditions are not livable.

12 Q

Approximately what time of year was it?

13 A

Summertime.

14 Q

Now, were you eventually transferred?

15 A

Yes.

16 Q

How did that come about?

17 A

After I talked to Major Pipta, Col. Pipta, they set

18 up a transfer, and I was shipped to Martin Correctional to

19 spend the rest of my time.

20 Q

yrhen you checked into protective confinement, were

21 you ever given the opportunity to obtain counseling for the

22 rape you had suffered?

23 A

TJQf sir, nnnp whatsoever.

24 Q

fDuring the time when the rape was occurring following

25 the time when Goldie showed you the knife through the time

Pauline A. Stipes Official Federal Reporter

09

1 of the actual rape, did you attempt to call out or seek

2 help?

3 A

No, sir, I was scared. Like I said, I didn't want to

4 get stabbed.

5 Q

..How long did you remain scared this way?

6 A

Throughout the time. Even when I was in protective

7 confinement, I was still afraid.

8 Q

Now, when you think about the incident which occurred

9 at Glades, how do you feel when you think about it?

10 A

Upset.

11 Q

Why were you upset?

12 A

I wish it never happened. It shouldn't have happen.

13 If the camp were run like it should be, I don't think it

14 would happen. I don't think I am less of a man because it

15 happened.

16 Q JDid you feel like you were less of a man?

17 A

At the time, yes.

18 Q

Could you describe that?

19 A

It made me feel real low that something had been

20 taken that shouldn't have been taken. It made me wonder if

21 I had done anything out of the way. Looking back on it, I

22 didn't do anything out of the way to bring it on. I was

23 new. I was vulnerable, and like I said, scared.

24

MR. TUCKER: I have no further questions, Your

25 Honor.

Pauline A. Stipes Official Federal Reporter

ho

~1

^CROSS-EXAMINATION^

2 BY MR. MEGINNISS:

3 Q

Mr. Haveard, what time of day was it that this

4 incident, the alleged rape, occurred?

5 A

In the morning time.

6 Q

About what time?

7 A

About — it is hard to remember, I would have to say

8 around 10 or 11.

9 Q

It was not in the dormitory?

10 A

No, sir.

11 Q

In the closet in the library?

12 A

Yes.

13 Q

Are there not offices in the library?

14 A

One officer, yes.

15 Q

Offices?

16 A

Yes.

17 Q

There were a number of people in there?

18 A

Yes.

19 Q

You didn't make endeavor to cry out?

20 A

When we were walking in the hall, there is nobody in

21 the hall, they were in the library, he was right behind me.

22 Q

On the left-hand side, as you go into the building,

23 there is a series of offices, and a classroom, isn't there,?

24 A

I can't recall.

25 Q

Okay. You made no effort to cry out?

Pauline A. Stipes Official Federal Reporter

ill

1 II A

No, sir.

2 Q 3 A

Where did you see the knife the first time? in front_of the library.

4 Q

Well, did you see it in the man's pocket?

5 A

He pulled it out of his pocket, yes.

6 Q

At that time, there was nothing to prevent you from

7 running?

8 A 9 Q

Nof sir^ni except scared. He was bigger than I was. It is a short way to the front door?

10 A

The library?

11 Q

Yes.

12 A

Yes.

13 Q

Okay. Now, you say you reported this by letter. Do

14 you recall when this letter was written?

15 A

.1 checked in about two weeks after the incident

16 happened, and I wrote the letter about two days late.r.

17 Q

You didn't write that letter until September, did

18 you?

19 A

To the best of my knowledge^

20 Q

.Isn't it true that it was 9 months afterward that the

21 letter was finally forwarded to the authorities at Glades?

22 A

No, sir.

23 Q

Were you able to identify this person by name?

24 A

All I know him by is Goldie.

25 Q

Did you make any endeavor to contact the correctional

Pauline A. Stipes Official Federal Reporter

B12

1 ^officers to see if they could identify who Goldie was?

2 A

When I identified them, they said they knew who he

3 was.

4 Q

Did they tell you who he was?

5 A

They didn't.

6 Q

Do you know whether or not Goldie went into

7 protective confinement?

8 A

No, sir.

9 Q

You were there, and you say you were there about

10 three months?

11 A

Yes, three, four months.

12 Q

Bottom line is, you did not report this immediately

13 after it happened?

14 A

jJo, sir.

15 Q

You are indicating guards on patrol. Is it normal

16 during business hours, 11 o'clock in the morning, you have

17 officers patrolling the library?

18 A

Should have. It is 11 o'clock in the morning,

19 nothing to do, people out of work.

20

MR. MEGINNISS: Nothing further.

21

THE COURT: All right. You are excused.

22

MR. TUCKER: If I may speak with him?

23

THE COURT: All right.

24

(Witness excused.)

25

THE COURT: We will take a recess, gentlemen,

Pauline A. Stipes Official Federal Reporter

$13

1 about 15 minutes.

2

(Thereupon, a short recess was taken.)

3

DAVID MARSH.. PLAINTIFFS' WITNESS SWORN

4

THE COURT: State your name, please.

5

THE WITNESS: David Marsh.

6

DIRECT EXAMINATION

7 BY MR . TUCKER:

8Q

Mr. Marsh, speak into the microphone. Are you

9 currently a prisoner in the Department of Prisoners?

10 A

Yes.

11 Q 12 A

Where are vou presently housed? Martin Correctional Institution.

13 Q 14 A

Is that permanent? No.

15 Q

Where is that?

16 A

Polk.

17 Q

How lonq have you been there?

18 A

Six months,, sir.

19 Q

Have you previously been at Glades Correctional

20 Institution?

21 A

Yes, I was there for a year from June 21 of 1988.,

22 until July or Auqust of '89,

23 0

Okav. Before enterincr Glades, had vou ever been in

24 the Florida Department of Corrections Dreviouslv?

25 A

Yes. I spent 14 years in it before. Back on parole

Pauline A. Stipes Official Federal Reporter

$14 1 violation, sir.

2 Q

And when did you re-enter from the parole violation?

3 A

March 9, 1988, sir.

4 Q

And .when did you first enter the system when you did

5 the first 14 years?

6 A

I believe it was in November of 1965, until sometime

7 the first of r79, sir.

8 Q

Okay. When you were at Glades Correctional for

9 approximately one year, did you witness any incidence of

10 violence?

11 A

Yes, I witnessed quite a few, in fact.

12 Q

And were those incidents ^nmate-on-inmate violence?

13 A

Yes.

14 Q

Did you witness any incidents inmate-on-staff

15 violence?

16 A

No, sir.

17 Q

Approximately how many incidents of inmate-on-inmate

18 violence did you see?

19 A

I know of at least four, five.

20 Q

Can you describe just in general the nature of those

21 four or five incidents?

22 A

I seen a couple, what they call armed robberies. I

23 see a man hit in the head with a ball bat, assault, and J

24 seen assault on inmate by four blacks in a shower late at

25 night, anjL sexually molested.

Pauline A. Stipes Official Federal Reporter

315

1 Q

With regard to the j;wo armed robberies that you

2 describe in a general way, can you describe the first armed

3 robbery that you observed?

4 A

Yes, early in the morning, in the dorm where I sleep

5 at, man, black man come in, had a swetshirt made into a ski

6 mask. He had it rolled up on his head, and got halfway.

7 down the aisle, and reached up, and pulled the mask down

8 pyer his face, and there is a white fellow sleeping about

9 three bunks over in the next aisle from where I was at. A,

10 man had something in his hand, and reached down and put ifc

11 on the man's chest, and reached up and grabbed gold chain

12 a,nd neckless, and took off. The man jumped out of bed, and

13 started screaming, and hollering. The officer in the

14 wicket stood there. The man ran down the length of the

15 dorm, across the dorm, and back out of the dorm..

16 Q

Do you recall the name Q,f the person who ran into, the

17 dorm?

18 A

MQ,, sir.

19 Q

Do you recall his race?

20 A

He was black.

21 Q

And what dorm did this occur in?

22 A

D dorm. East si4e.

23 Q

And what was the race of the person who was attacked?

24 A

He was white.

25 Q

And how did you observe this attack? Where were you

Pauline A. Stipes Official Federal Reporter

B16
1 at the time?

2 A

I was on the bed, sir. I was drinking a cup of

3 coffee.

4 Q

Approximately how far away were you?

5 A

No further from here to the gentleman seated behind

6 you, sir.

7 Q

Would that be approximately 10, 15 feet?

8 A

Yes.

9 Q

Do you know if the attack was reported to the

10 officers?

11 A

Yes, sir, the chain was recovered, but there was

12 rnothing done about the incident.

13 Q

And how do you know that?

14 A

The man who had his neckless stolen from him, checked

15 in, he was afraid because he went to the man about it,

16 nothing was done to the people who took the chain, and the

17 man checked in.

18 Q

Where did the victim check in? Where do you mean?

19 A

Protective custody.

20 Q

Do you recall the name of the victim of this attack?

21 A

No. Robbie, that is all I know.

22 Q

Do you recall his last name?

23 A

No, sir.

24 Q

Do you recall the approximate date of that attack?

25 A

No.

Pauline A. Stipes Official Federal Reporter

517

1 II Q

Sometime during the time you were at Glades?

2 A

Sometimes within the year I was in there.

3 Q

And you said you observed two armed robberies. Can

4 you describe the second incident of this sort?

5 A

The other one was in the same dorm on the other side

6 of the building, on a weekend, Saturday, or Sunday/ I can't

7 recall the date. I was playing cards on the bed with

8 another inmate. Two black inmates come in with a ski mask,

9 they were pulled down their faces, they come into the dorm

10 B approximately 30 feet, and to the first row of bunks,

11 there was an inmate there by the name of Applebaum, or

12 Rosenbaum. I am not sure what his last name was.

13 Q

Do you recall his first name?

14 A

No, sir.

15 Q

What happened?

16 A

They pulled knives on the man, cut his pockets,

17 wrestled, and tussled around the floor, and robbed him of

18 ,his money.

19 Q

Did you see the knives?

20 A

Yes, I see one of the knives, homemade shanks.. What

21 they call homemade shanks.

22 Q

Approximately how large was the knives?

23 A

Five, six inches long.

24 Q

Was there a guard on patrol at the time of this

25 attack?

Pauline A. Stipes Official Federal Reporter

818

A

No, sir, there was an officer in the dorm, but he wa.s~

2 clear on the other side of the dorm. The dorm is split

3 with a petition, approximately 120 men in each dorm. Hev 4 was at the end down by the water fountain. He was talking 5 to some other inmates down there.

6 Q

Other than the one officer in the other end of the

7 dorm, were there any other officers in the dorm?

8 A

No, sir.

9 Q

Did the victim scream or yell for help?

10 A

That is the way it was doing he screamed, help, stop,

11 stop, they woke me. 30, 45 seconds, maybe a minute. They

12 toss around on the floor, and finally got his money, and

13 got up, and took off.

14 Q

Did the two black persons leave the dorm?

15 A

One of them got out, and the inmate on the floor gqt^

16 up, and chased after the other one. I believe they tried

17 to stop him from getting out the door. I went back to

18 playing my cards.

19 Q

Who tried to stop him from getting out the door?

20 A

pther black inmates.

21 Q

Do you know if the second person escaped or not?

22 A

I don't know, sir.

23 Q

Now, you said you also observed a person hit in the

24 head with a baseball bat, could you describe how that

25 happened?

Pauline A. Stipes Official Federal Reporter

$19

3T1 A

Yes, $hTs was between some~l5panish bovs. 6T Puerto

2 Ricans. I guess previous to this they had been in an

3 argument, and they went out in the yard, in the compound

4 area, behind the kitchen. The kitchen — the kitchen

5 faced, kitchen here, and some of the dorms over here, they

6 are around, and one was standing there, I guess, talking to

7 h_is othf»r burirHpsf hhe> other one took off, and got a ball 8 bat somewhere.

9 Q

Approximately hQM long was he gone?

10 A

I guess four, five minutes.

11 Q

And then what happened?

12 A

He come back up, behind the man, and bust him in the

13 head with a ball bat.

14 Q

What happened when he hit him over the head with the

15 ball bat?

16 A

Man fell down.

17 Q

Was the man pleading?

18 A

Busted the head open.

19 Q

Were there any guards around when this occurred?

20 A

No, sir, there was not.

21 Q

When did the attack occur?

22 A

Inside the institution, in fact, it was practically

23 iff front of one of the dorms.

24 Q

Do you recall which dorm?

25 A

A dorm.

Pauline A. Stipes Official Federal Reporter

&20

~~T Q

And was it outside the dorm on the grounds?

2 A

Yes.

3 Q

Okay. Approximately what time of day did this occur?

4 A

It was either late in the morning, or real early in

5 the afternoon after chow. I am not quite sure, I would say

6 late in the morning.

7 Q

Where were you when you observed this attack?

8 A

I was sitting on the bench. They have sidewalks, in

9 Belle Glade they have benches. Periodically, I would say

10 they were talking to other inmates.

11 Q

Approximately how far away from the scene of the

12 attack would vou sav you were?

13 A

40. 50 feet, mayber

14 Q

Were you able to have a clear view of the attack?

15 A

Yes. I seen what went on. I seen him go up and get

16 fche ball bat, and swing, and the man falj..

17 Q

After that, did you see any response to the guards?

18 A

Yes, the officers came, took four, five minutes for

19 them to get there, approximately.

20 Q

Approximately how many arrived at that point?

21 A

I see two come, sir.

22 Q

Now, you said during the time, approximately a one

23 year period when you were at Glades, you also observed an

24 attack in the shower, can you describe that for the judge?

25 A

Yes, where I slept in the dorm, D dorm, I slept near

Pauline A. Stipes dfficial Federal Reporter

$21

the back. Bed 52. Where I sleep, I could lay there and 2 you could see the shower the shower — to the inside of the 3 shower, I could see part of it. The re is a wall, and there

4 is a retaining wall in front of the shower that separates

5 the sinks from the ishowers, and there was a white boy in

6 there, and four, five blacks.

7

I seen the white boy, I was sitting in my bed

8 writing, and I heard a commotion, and the boy said

9 jsomething, and one of the black inmates struck the man,

10 knocked him down, and you could hear a muffled sound where

11 they put wa^shrags or hand or something over his mouth, and

12 four, five that was in there, I believe f_our. black inmates

13 j.n there at the time, took turns sexually molesting the

14 white boy. His first name was Jeffrey, or Jeff, I am not

15 quite sure what it was.

16 Q

Do you recall his last name?

17 A

No, sir, I don't.

18 Q

Do you recall Jeff's approximate age?

19 A

I would say in his e_arly 20's.

20 Q

Do you know how long he had been at Glades?

21 A

pe was there hefore I got there, sir,.

22 Q

Okay. Approximately what time of the day did this

23 occur?

24 A

9, 9:30. 10 o'clock at night.

25 Q

How many guards were there in the dorm at the time of

Pauline A. Stipes Official Federal Reporter

B22

the attack?

A

Two officers in the wicket.

3Q

Were either of those officers on patrol?

4A

No, in the wicket, where they stay most of the time.

5Q

Did either of the officers respond in any way to the

6 attack?

7A

I do not even think they was aware it was going on.

8Q

During the time you were at Glades, did you observe

9 any other incidence of violence where there was an inmate

10 attack?

11 A

I have seen fights over the television. Fights over

12 card games. I did see one time, I cannot — I can't say I

13 seen it. There was two blacks, sissy, what we call a

14

t gay person,—«nH her HaHHyJ which is what they call

15 — that's how they go in there, the language. They got

16 into the fight in the dorm. They pull knives on each

17 f other. There was nothing done. They chase each other 18 around the dorms, and the officers were aware of this.

19 They stayed in the D dorm for quite awhile, and this went

20 on constantly, constantly bickering back and forth.

21

More than one time they pull knives on each other.

22 The sissy, at one time, come up with a broken arm from a

23 fight.

24 Q

Did you observe any attacks on any of the inmates who

25 you knew when you were at Glades?

Pauline A. Stipes Official Federal Reporter

1 II A"

523 Just by casual. I learned a long time ago, you don't

2 get involved. I am not the type to hang around a lot of

3 people.

4 Q

Approximately how many correctional facilities in the

5 State of Florida have you been incarcerated in?

6 A

I have been in^ Raiford. I have been five or six

7 different road camps, Avon Park. I have been to a couple

8 reception centers going through, and being processed,

9 transferring, and coming back into the system, maybe 8, 9,

10 10.

'"-'-

11 Q

And since you returned to the system in 1988, how

12 many prisons have you been in?

13 A

Belle Glade, Polk, Martin Correctional.

14 Q

And during that period of time, how would you compare

15 Glades to the other prisons that you have been in with

16 regard to security of the inmates within the facility?

17 A

Please state that again.

18 Q

On the issue of inmate safety, how does Glades,

19 compare for inmate safety as compared to other prisojis in

20 the State?

21 A

it is not safe there..

22 Q

Why is it not safe?

23 A

Too much violence. That is all there is is violence,.

24 It is like one big party there. All they do, they drink.

25 use drugs, there is no control At nighttime. I have a

Pauline A. Stipes Official Federal Reporter

524

bladder problem , and a liver problem. I get up four, five
times a night, to go relieve myself, and sometimes it is

hard for me to get back to sleep. I lay awake two,, three

hours at a time You never see an officer walk theJ dorm.
Thev are there. They are in the wicket. They don' t patrol

the dorms. They can't see into the dorms, can't see into

the showers.

8 Q

Have you seen the same level of violence in other

9 prisons in the State of Florida?.

10 A

No_, sir.

11

MR. TUCKER: No further questions, Your Honor.

12

THE COURT: Cross-examination.

13

CROSS-EXAMINATION

14 BY MR. DAVIS:

15 Q

Mr. Marsh, you told us about four incidents that you

16 say you saw while you were at Glades Correctional?

17 A

Yes.

18 Q

The first one was, as you described it was the

19 robbery, an inmate, robbery of his gold chain from him by

20 another inmate?

21 A

Yes.

22 Q

And that was D dorm?

23 A

D dorm, yes.

24 Q

And you said at the time that happened, the officer

25 was stationed in the wicket?

Pauline A. Stipes Official Federal Reporter

$25

Tl] A Yes, he walT.

2 Q

And the only way to get in D dorm is to go through

^he door by the wicket?

Q

-And do you know whether that officer called in a

6 report on the incident?

7 A

,No, sir. I do not.

8 Q

But you do know as a result of something happening,

9 the chain was recovered?

10 A

yea-

11 Q

And returned to the owner?

12 A

Yes.

13 Q

Certainly, there wouldn't have been a better position

14 for an officer to be in to have prevented such an

15 occurrence if you were able to be in the wicket under those

16 circumstances, would there?

17

MR. TUCKER: Objection, Mr. Marsh can answer a

18 question by Mr. Davis, but that is argumentative.

19

THE COURT: The objection is sustained. It is

20 argumentative.

21 BY MR. DAVIS:

22 Q

With respect to the second robbery, you indicated

23 that the officer was at the other end of the dorm, is that

24 correct?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

$26 1 II Q I assume he was patrolling, is that correct?

2 A

No, sir, he was talking — I can't say what he was

3 doing. He was down by the water fountain at the other end

4 of the dorm, at the other end of the building, talking to

5 two, three, other black inmates.

6 Q

All right. And in order to get down there, he has to

7 leave the wicket, does he not?

8 A

Yes.

9 Q

When did that occur? What time of the day?

10 A

It was late in the morning, 10, 10:30 in the morning.

11 something like that. It was on the weekend.

12 Q

And with respect to the baseball bat incident, that

13 was an incident which occurred very briefly in the morning,

14 is that not true?

15 A

Yes.

16 Q

And baseball bats are available as atheletic

17 equipment at GCI, are they not?

18 A

Yes.

19 Q

And in respect to the incident in D dorm, you said

20 that you were in bunk 52, is that correct?

21 A

Yes.

22 Q

And where is bunk 52 located?

23 A

It is in the fourth row, back wall about four bunks

24 from the shower, sir..

25 Q

All right. And from that — and what were you doing

Pauline A. Stipes Official Federal Reporter

B27

I at your bunk on that occasion?

2A

I was writing.

3 Q

You were sitting on your bunk?

4 A

Yes.

5 Q

And —

6 A

Not sitting on my bunk. I was writing on my bunk. I

7 take a butt can and sit it in the floor, and lien on my

8 bunk, and I write.

9 Q

And you observed several blacks in the shower, and a

10 white in the shower?

11 A

Yes.

12 Q

And, could you see there entire bodies in the shower?

13 A

JNo. sir, all I could see was maybe about here up

14 (indicating).

15 Q

From the chest up?

16 A

Yes.

17 Q

Because of the privacy wall that runs across the

18 shower?

19 A

Yes.

20 Q

And at some point you saw what a period to be a

21 scuffle, is that correct?

22 A

Yes.

23 Q

And then they disappeared from sight?

24 A

Yes.

25 Q

You don't know whether there was, in fact, a sexual

Pauline A. Stipes Official Federal Reporter

128

assault or not, do you?

2A

I didn't see it, no, sir.

3Q

Okay.

4A

I was told.

5Q

You said there were two officers on duty, but they

6 were in the wicket?

7A

Yes.

8Q

Do you remember when your deposition was taken

9 December 12, 1989?

10 A

I remember someone being there, sir.

11 Q

Do you remember giving a statement under oath at that

12 time?

13 A

Yes, I gave a statement, yes.

14 Q

And at that timer you did not indicate that both

15 officers were in the wicket, did you? ,

16

MR. TUCKER: Excuse me, Your Honor, Mr. Davis,

17 to what page in the deposition are you referring?

18

THE COURT: What page, please, Mr. Davis?

19

MR. DAVIS: Page 13 to 14.

20 BY MR. DAVIS:

21 Q

Sir, you did not indicate that they were both in the

22 wicket, did you?

23 A

I don't remember, sir.^

24 Q

Okay. In fact, your testimony was that one was in

25 the day room, wasn't it?

Pauline A. Stipes Official Federal Reporter

~T~

MR. TUCKER: Mr. Davis, would you please have

2 the courtesy to show Mr. Marsh his deposition?

3

THE WITNESS: I don't know.

4

MR. TUCKER: Your H o n o r —

5

THE COURT: Yes, show him his deposition, if it

6 does —

7

THE WITNESS: Sir, I must have said it, sir.

I

8 I

THE COURT: What was the answer?

THE WITNESS: I must have said it.

10

THE COURT: All right.

11 | BY MR. DAVIS:

12 Q

On December 12, 1989, your version was there was an

13 officer in the wicket, and one in the day room, is that

14 correct?

15 A

According to that, yes.

16 Q

Your version today is there were two officers in the

17 wicket?

18 A

Yes, sir, that is what I said.

19 Q

Have you yourself ever filed any complaints against

20 Glades Correctional Institutional or to officers?

21 A

The only one I file against was an incident on wher.e

22 I fell,

23 Q

You had occasion to slip and fall in the dormitory

24 because of what was apparently excessive water being used

25 to clean the dorm?

Pauline A. Stipes Official Federal Reporter

530

1 II A Excessive water, and soap, yes.

2 Q

You are an epileptic?

3 A

Yes.

4 Q

On falling you had a seizure, is that correct?

5 A

I had a seizure and fel1•

6 Q

You had a seizure and fell?

7 A

Yes.

8 Q

You generated a substantial amount of paperwork over

9 Tthat incident, did you not?

10 A

Yes.

11 Q

you were upset over that incident, were you not?

12 A

Yes_, I was.

13 Q

And you certainly wanted to get back at GCI for that

14 incident?

15 A

No, sir.

16

MR. TUCKER: Objection, that is argumentative.

17

THE COURT: Overruled.

18 BY MR. DAVIS:

19 Q

Did you carry your complaint beyond the institution?

20 A

X_ wrote to a couple lawyers about it.

21 Q

Did you write to the court in Costello about it?

22 A 23 Q

Yesf I t h i n k s o .

.

So that you wanted to have some sort of satisfaction

24 about that incident having occurred to you?,

25 A

Yes,.

Pauline A. Stipes Official Federal Reporter

131

"I

MR. TUCKER: I would make the same objection.

2

THE COURT: Overruled. He can ask him that.

3

THE WITNESS: Yes, I felt what happened to me,

4 the officer knew I was an epileptic. It was hot in the

5 cjorm, I was overworked. I try to tell the officer I

6 couldn't do that type of work. I went into a seizure. I

7 fell, I have grand mal seizures. It is dangerous. It was

8 15, 20 minutes after I busted my head, and went into a

9 seizure before I got any medical treatment at all.

10

And I felt this wasn't sufficient, and this is why I

11 filed a complaint. I wasn't about 50 feet from the medical

12 department.

13 BY MR. DAVIS:

14 Q

You don't know from your own knowledge how long it

15 took for medical care to get there?

16 A

No. From what other witnesses testified, and a

17 couple officers told me, I knew, only from them.

18 Q

Whatever the situation was, you certainly felt that

19 you had been wronged?

20 A

Yes.

21 Q

And you never got satisfaction for that, did you?

22 A

I filed a complaint. I talked to the officers about

23 it. I talked to the investigator about it. I was told

24 that it would not happen again, and I am satisfied.

25

MR. DAVIS: No further questions.

Pauline A. Stipes Official Federal Reporter

J32

THE COURT: RecfTr ect~.

REDIRECT EXAMINATION

BY MR. TUCKER:

4 Q

Thank you, Your Honor.

5

Have you testified regarding any of the incidents

6 which you described on my direct questioning in order to

7 get back at Glades today?

8 A

No, sir.

9

MR. TUCKER: I have no further questions.

10

THE COURT: All right. You are excused, Mr.

11 Marsh.

12

(Witness excused.)

13

MR. AMLONG: Mr. Jonas.

14

GEORGE JONAS, PLAINTIFFS' WITNESS SWORN

15

THE COURT: Please be seated. State your name,

16

THE WITNESS: George Jonas, J o n a s .

17

DIRECT EXAMINATION

18 BY MR. AMLONG:

19 Q

Mr. Jonas, tell the judge where you are presently

20 incarcerated?

21 A

Martin Correctional Institution.

22 Q

Is that for the purpose of being brought to this

23 trial?

24 A

Yes, I was brought there from Hendry Correctional

25 Institution.

Pauline A. Stipes Official Federal Reporter

333 And that is where you are permanently assigned? I am assigned to Hendry Correctional Institution. Mr. Jonas, how old are you?

5 Q

55?

6 A

55 years old, last November.

7 Q

Okay. Have you previously been incarcerated at;

8 Glades Correctional Institution?

9 A

Several times.

10 Q

When were those times?

11 A

First time from February 1978 to April 4, 1980, and I

12 returned there in October '84, and remained there until

13 about June of 1988.

14 Q

Okay. During the time from October '84 to June '88r

15 where were you housed?

16 A

When I arrived, I was housed to B dormitory, and then

17 went to P..

18 Q

B as in backer, and D like in dog?

19 A

David, yes, prior to leaving the institution, I was

20 at the E dorm.

21 Q

You moved from the main compound to the —

22 A

What they call the north compound.

23 Q

When was that?

24 A

I was moved to the north compound November 14. 1985.

25 Q

And has there come a time that you were moved back to

Pauline A. Stipes Official Federal Reporter

B34

1 the main compound?

2 A

Yejs.

3 Q

When was that?

4 A

That was in end of February of '88.

5 Q

All right. Mr. Jonas, were you aware in the vicinity

6 of December 1985 about the litigation of this action,

7 LaMarca versus Turner^?

8 A

I heard about the case, the institution, through the

9 inmates.

10 Q

.Were there any changes in the physical condition of

11 Glades Correctional Institutional that took place during

12 the litigation?

13 A

Not during litigation, subsequent to the litigation.

14 Belle Glade is all open dorms, an average of 180, 200 men

15 to a dorm, and the bunks that were doubled in the middle

16 area of the dormitory was removed, double bunks, and the

17 double bunks were left in the wall area all around the

18 dormitories.

19 Q

jjhat- ahgut the kind of movies that were shown there,

20 was there any change in that before and after?

21 A

Pornographic movies were shown, they used to have

22 from the canteen area, and j-.hat wag HismantlpH mil- nf

23 there. They didn't show any more movies.

24 Q

Do you know what they had since then?

25 A

Pornographic movies, X-rated.

Pauline A. Stipes Official Federal Reporter

335

1 Q

Since they dismantled the trailer, what kind of

2 movies have been available?

3 A

Regular movies, shown on HBO, whatever movies they

4 watch.

5 Q

Now, did these changes eliminate the violence from

6 tGlades Correctional Institutional?

7 A

Not at all.

8

MR. DAVIS: Objection, calls for a conclusion.

9

THE COURT: Objection overruled.

10 BY MR. AMLONG:

11 Q

Do you recall an incident involving an inmate named \

12 Mark Brown?

13 A

Yes.

14 Q

Would you please tell the judge what you recall about

15 that incident including when it happened, or where it

16 happened?

17 A

Monk Brown was an inmate who was in B dormitory, the

18 same dormitory I was housed in.

19 Q

That is B for baker?

20 A

Yes. He had three homosexuals that he controlled, he

21 in some fashion managed, so to speak, and two of them had

22 an altercation one evening, and he stepped in to mediate

23 the altercation, and the homosexuals turned on him, start

24 fighting with him. The officers locked himself in the

25 wicket, and made a phone call, picked up the phone, and

Pauline A. Stipes Official Federal Reporter

!36

1 called on the phone, and five",' six "minutes" later, Sergeant

2 _Groves came to the dormitory, a couple other officers, and

3 .the end result was, Sergeant Groves ended up knocked out

4 ^between two bunks. They couldn't control the situation.

5 Q

What time of night was this?

6 A

,8, 8;30 in the evening.

7 Q

How many officers were in B dormitory when the

8 altercation began?

9 A

Just one.

10 Q

He was locked in the wicket?

11 A

He locked himself in the wicket when the fight

12 started, yes.

13 Q

Was it common there would only be one officer in the

14 dormitory?

15 A

There is never more than one officer in the

16 dormitory.

17 Q

Now, you said t h a t Monk, M o n k ?

18 A

Monk Brown.

19 Q

Monk Brown you say had several homosexuals. What did

20 he do with his homosexuals?

21 A

Have sexual relations with them.

22 Q

Is there much open homosexual activity in the dorms

23 at GCI?

24 A

I don't know now, but there was when I was there.

25 Q

We are talking now through, I believe you said, May

Pauline A. Stipes Official Federal Reporter

837

~~T of 1989?

2 A

I left there in '88.

3 Q

'88. During that time there was homosexual activity?

4 A

Yes.

5 Q

All right. Now, fifter you moved back to the main

6 complex, when was that again?

7 A

That was after I was injured, around February, '88.

8 Q flow did you get injured?

9 A

I changed the channel on the T.V. station. They had

10 a program called 60 Minutes on, and I was the only one

11 sitting there. I changed the station and another inmate !

12 came and was upset because I changed the station on the

13 television.

14

Another inmate came, and started arguing with him

15 about putting the T.V. back where it was originally, that

16 he said he wanted to watch 60 Minutes, also. They started

17 arguing ba(:k and forth. The officer came over, and shut the T.V. off. One of the inmates put the T..V. on, and told
18 the officer not to touch the T.V. aqain, that was the
19 inmates' T.V. . he had no authority to touch it The
20 officer through his arms up in the ai r, and walked away.
21

22 One inmate put the T.V. back on 60 Minutes. When they

23 started, the best thing to do is walk away. I started 24 walking away, and there is a little day room off the T.V.

25 a,rea that had a checker board made out of one inch plywood,

Pauline A. Stipes Official Federal Reporter

$38

1 II Q Made out of what?

2 A

One inch plywood, as I walk away, the inmate come

3 behind me, and hit me over the head with the checker board,

4 and I walk to my bunk. The man kept hitting me with the

5 board. I reached my bunk, and I had been trying to fix g

6 ^maU—Walkman radio I had. I had been trying to attach an

7 antenna to it, and I picked up the antenna, and tried to

8 use it as a small whip to cfet him off me, and he backed me

9 up to the T.V. room again, and hit me. I slipped from

10 water, the water fountain was leaking water. I was wearing

11 the rubber shower slides. He picked me up, and picked met 12 over his shoulder, and I fell against the table, and broke

13 three ribs.

14 Q

Where was the dormitory guard at this time?

15 A

After he came, and shut the T.V. off, he put his arms

16 up, he was up in the office, a dormitorv is about as big as

17 the courtroom here. He was mavbe 40 feet away. When I hit

18 the table, and broke three ribs, the guy kept beating me on

19 the floor, and finally he walked over, and said okay, he

20 had enough, get off him, leave him aloner

21 Q

He saw you being beaten?

22 A

He couldn't help but see me.

23 Q

How long did this process take?.

24 A

What do you mean?

25 Q

Well, you say he finally came over to you?

Pauline A. Stipes Official Federal Reporter

$39 1 II A Five, six, seven minutes.

2 Q

How many officers were on duty, and this is E for

3 Edward dorm?

4 A

Yes.

5 Q

How many officers were on duty in this dorm when this

6 twas happening?

7 A

One.

8 Q

Now, you got a DR for that, didn't you?

9 A

They gave me a DR, and then dismissed it.

10 Q

How many DR's have you had since you have been in the

11 Florida Prison System?

12 A

I have been issued DR's twice, and then dismissed.

13 Q

After that you moved back —

14 A

JL was in the hospital for three weeks<f and after I

15 come out of the hospital, they put me back in B dormitory.

16 Q

Do you know whether or not there was any discipline

17 imposed on the person who attacked you?

18 A

Not to my knowledge.

19 Q

When you were back at B dorm, did you have occasion

20 in early 1988 to witness any sexual assaults?

21 A

Yes.

22 Q

How many times did you witness that during 1988?

23 A

Twice.

24 Q

Okay. Tell Judge Paine about the first one, and then

25 we will move to the second.

Pauline A. Stipes Official Federal Reporter

~~I A

One took place, a guy just came in from another

2 institution, South Florida reception Center, and he was

3 assigned to B dormitory, and I believe it was Saturday or

4 jSunday. I can't recall exactly which one, three inmatqs

5 went to his bunk, around 2, 3 o'clock in the morning,

6 weekends they stay up late, two o'clock in the morning.

7 The lights are out after 11. They shut the lights out, and

8 they took the inmate to the shower area, and I couldn't see

9 exactly what they were doing, but I could hear the moaning

10 going on behind the wall, a retainer wall about six feet

11 high. You can't see behind it.

12 Q

When you say they took the inmate to the shower area,

13 how did they take him?

14 A

By force. ,

15 Q

Did they have anything with him?

16 A

One had a knife.

17 Q

After the lights are out, are inmates supposed to be

18 in bed?

19 A

pn the weekend lights go out at 11 o'clock, and

20 television stays on until two o'clock. You are supposed to

21 be in your bunk, or T.V. room. No other area.

22 Q

Wjpuld the guards enforce this?

23 A

It never see him enforce it. He would stay in the

24 wicket,

25 Q

What happened to that inmate who you saw taken to the

Pauline A. Stipes Official Federal Reporter

B41 1 shower room?

2 A

Nothing. I mean, as far as you know what was done to

3 him?

4 Q

We 11, do you know what became of him?

5 A

Five, six days later, I saw his bunk was empty. I

6 don't know where he went.

7 Q 8 A

You don't know what his name was? - Mr..

9 Q

Why didn't you get involved? Why didn't you help

10 him?

11 A

You don't get involved. I don't want to go to sleep,

12 and end up with a knife in my back in the morning.

13 Q

A guard wouldn't protect you?

14 A

Who is going to protect me? He wouldn't protect me

15 when I got smashed up.

16 Q

What about the second incident# can you tell the

17 judge about that?

18 A

A man that got involved, he was a homosexual.

19 Q

The person who got raped?

20 A

Yes, he was a homosexual. He didn't go willinqlv.

21 He was a friend of some other inmate, and they may have

22 been moved out of that dorm to another dorm. They had an

23 argument, or something like that. They moved them,

24 separated them.

25 Q

How was he — Where did he go that night?

Pauline A. Stipes Official Federal Reporter

$42

1 II A

His friend got moved out of the dormitory. He was

2 left in the same dormitory. The one that happened, he is

3 free.

4 Q

You remember an incident involving Mr. Thurston?

5 A

Yes.

6 Q

Tell the judge about that?

7 A

inmate Thurston went to his bunk. He went to the ,

8 shower area, and a homosexual, he was leaning over a wash

9 basin, washing his face, and brushing teeth, and held a,

10 knife to his side, and had sexual relation.

11 Q

Where is your bunk from the shower area?

12 A

From here, to that chair, 18, 20 feet.

13 Q

Did you see Inmate Thurston having sexual relations

14 with the other inmate?

15 A

.Couldn't help but see him.

16 Q

What time of night?

17 A

Late night, two, three o'clock in the morning,.

18 Q

Had any guard been patrolling the office area?

19 A

The officer was there, but he was not patrolling.

20 Q

Mr. Jonas, which other prisons have you been in?

21 A

In Florida?

22 Q

Well, Florida, and wherever else?

23 A

I served two years in federal prison, five to 10

24 years in Massachusetts, and six here in Florida.

25 Q

Which federal prison?

Pauline A. Stipes Official Federal Reporter

B43

1 A

Louisburg.

2 Q

And which prison in Massachusetts?

3 A

Norfolk.

4 Q

And which prisons in Florida?

5 A

Martin, Belle Glade, Dade Correctional, Hendry

6 County.

7 Q

Do you have an opinion as to how inmate discipline at

8 Glades Correctional Institution compares with inmate

9 discipline in all of the other prisons you have been in?

10 A

Well, Belle Glade is what I call a concrete and stee1

11 jungle.

12 Q

I am sorry?

13 A

Belle Glade is what I call concrete, and steel

14 jungle. There are animals in there. No prison is a haven,

15 no one is. I am in Hendry, I don't have to worry about

16 floing to the canteen with a dollar and buy a soda, and have

17 somebody take it out of my hand. I don't have to worry

18 about going to bed at night, and have somebody hurt me over

19 there. I don't have to worry about nobody stealing what I

20 own over there, because that institution, if you get caught

21 with a knife, you are history. You break the rules over

22 there, and you are going to know that you are not in

23 heaven.

24

They run the place. They do not allow violations of

25 the rules, period. When you talk to an officer, it is yes.

Pauline A. Stipes Official Federal Reporter

544

1 II no, sir, I am sorry sir, I apologize sir.

2

In Belle Glade, the officers call the inmates nigger..

3 and the inmates call the officer nigger. There is no

4 respect. And that is not to say they don't have good

5 .officers over there. You have Major Lawson, one of the

6 best, most honest man I ever known. Captain Dean Bennett.

7 These are good officers that do not get any cooperation

8 from the rest of the people. Everybody does what they want

9 to do.

10 Q .How about drug use, how would you compare drug use at

11 GCI with drug use in the other prisons where you have been?

12 A

jt is unstopable over there. Inmate Joe Garcia, one

13 day, Lt. Wilson pulled a drawer under his bunk, and had a

14 pound of jnarijuana.

15 Q

A pound?

16 A

Yes, a pound. That is a matter of record. They

17 smoke stuff they call crack over there, in soda cans. They

18 make wine by 55 gallon drums full.. Anything you want is

19 there.

20 Q

Now, this is similar to the testimony—

21

MR. DAVIS: Objection.

22 BY MR. AMLONG:

23 Q

Is what you are describing now, the drug use, and the

24 mass production of wine, is that from 1986 and before, or

25 is that from 1986 and after?

Pauline A. Stipes Official Federal Reporter

345

1 A

That is from the time I first arrived there in 1978,

2 I never saw any change.

3 Q

So that has continued through 1988, at least when you

4 transferred out?

5 A

Happened to the time I left, still going on the time

6 I left, still going on.

7 Q

Did you have a job assignment while you were at GCI?

8 A

I was a barber.

9 Q

What did that entail?

10 A

f. cut everybody's hair from the superintendent, his

11 w^fceL, family, their children, mother's, aunts, everybody.

12 Q

So you had a chance to be in contact with the prison

13 management?

14 A

I knew everybody intimately, even the children. I

15 fixed some of the ladies hair that went and got married. I

16 did the hair for the wedding. I gave some of the children

17 the first hair cut.

18 Q

Did you ever have a chance to discuss with Mr.

19 Lambdin — I don't see him here, yjpu know Mr. Lambdinf 20 superintendent?

21 A

Yes.

22 Q

Did you ever have a chance to discuss with him your

23 concerns about inmate safety within the compound?

24 A

After I was released from the hospital, and put back

25 in B dormitory, I wrote a letter to Mr. Lambdin, and I told

Pauline A. Stipes Official Federal Reporter

346

1 him that I would appreciate if he would transfer me out of, 2 there. I didnft feel safe in that institution.

3

_He called me to the classification the following day,

4 and he said he couldn't do anything. Transfers were not up

5 to him, transfers had to be recommended from Tallahassee.

6

I went back to my dormitory, and I sat down and wrote

7 a letter to His Honor, Judge Paine, and the reason I did

8 that was because His Honor's name was the only one I could

9 think of at that moment associated with the suit that the

10 inmates filed, and I asked the judge for assistance helping

11 me get out of there, and I sent a copy to Mr. Lambdin. The

12 following day Mr. Lambdin called me back infro

13 classification, and he said go pack your stuff. We will

14 get you out of here in 24 hours, and they sent me to Dade

15 Correction Institution.

16 Q

Do you know whether or not Mr. Lambdin did anything

17 to — aside from transferring you out, do you know whether

18 or not Mr. Lambdin did anything to address the underlying

19 problems of violence?

20 A

In my discussion with Mr. Lambdin, I told him that I

21 felt that the institution was too violent. It was in my

22 best interest to get out of there, and he said he was

23 trying to deal with the problem and my response was, he

24 might be trying to deal with the problem, but I didn't see

25 any measure of success.

Pauline A. Stipes Official Federal Reporter

J47

~I Q

Mr. Jonas, thank you.

2

MR. AMLONG: I have no further questions of Mr.

3 Jonas at this time.

4

THE COURT: Cross-examination, please.

6 BY MR. DAVIS:

'

7 Q

So, during the entire time you were at Gladers

8 Correctional, Mr. Jones, it was a terribly violent place,

9 is that correct?

10 A

Yes, it is.

11 Q

Full of drugs, weapons, .not a good place to be?

12 A

That is right.

13 Q

And I guess that you were very happy to get away frqm

14 there?

15 A

That is correct.

16 Q

You were married, were you not?

17 A

I am still married.

18 Q

Your wife lives in Miami?

19 A

Miami.

20 Q

For years your wife asked you to transfer down to

21 ftade Correctional where you would be closer to home, did

22 she not?

23 A

Yes, and I could be closer to home right now, too.

24 Q

For years you refused to transfer because you

25 preferred to be at Glades Correctional?

Pauline A. Stipes Official Federal Reporter

$48

2

Do you recall that on March 29, 1988 you wrote a

3 letter to Willie Floyd, assistant superintendent, at Glades 4 Correctional?

5 A

J. might have written one, yes.

6 Q

You might have. Let me show you this document, and

7 ask you if you recognize that?

8 A

Yes, that is my letter.

9 Q

Now, would you describe yourself, Mr. Jonas, as a

10 proud and sensitive man?

11 A

I believe I am, yes.

12 Q

And when you arrived at Glades shortly thereafter,

13 you were given a job that you regarded as being a privilege

14 job, correct?

15 A

I don't consider it a privilege job. It is a job

16 like anybody else. They give me the job because I have the

17 skill to handle the job.

18 Q

And you regarded being put in a position where you

19 could cut the hair of the staff, and of their families, and

20 what not, as an honor that was given to you, a privilege

21 that they entrusted you with this position?

22 A

Like I said before, they gave me that job because I

23 was the only one that had the skill to handle that job in

24 that institution.

25 Q

And when you received — when the incident occurred

Pauline A. Stipes Official Federal Reporter

$49

1 II in February, 1988, it occurred February 14th, did it not,

2 the fight, is that correct?

3 A

Yes.

4 Q

You, who you saw as being in a position that you were

5 on familiar terms with the superintendent and upper

6 eschelon of the staff of GCI, received a disciplinary

7 report as a result of that incident, is that not true?

8 A

I believe I was issued a disciplinary report, yes.

9 Q

And that hurt you, didn't it?

10 A

I don't know in what way.

11 Q

.You felt a great deal of resentment because they

12 didn't take your part as you saw it at that time?

13 A

No, no resentment because they didn't take my part.

14 No resentment because they gave me the disciplinary report.

15 I felt resentment because I was injured, through no fault

16 of my own, and that was never recognized.

17 Q

Well, now, in your letter of March 29, 1988 to Willie

18 Floyd, you were not complaining about any violence at GCI,

19 were you?

20 A

You don't complain about such things in a penal

21 institution where you have to live with one thousand mep.

22 Anyone can kill you. That is what is called a snitch. You

23 don't do that.

24 Q

We11, you just told Mr. Amlonq on direct you wrote a

25 letter complaining to the superintendent about violence?

Pauline A. Stipes Official Federal Reporter

B50

1 A

That is direct communication to him.

2 Q

your direct communication to Mr. Floyd who is

3 assistant superintendent?

4 A

That's right.

5 Q

You voiced no concern about violence at GCI, did you?

6 A

I wanted to get transferred out of there. I didn't

7 particularly complain about violence, no.

8 Q

What was the reason you gave for wanting to be

9 transferred out?

10 A

I didn't want to get killed.

11 Q ffasn't it you felt that Col. Pipta had it in for you,

12 and he was responsible for giving you the PR?

13 A

You want me to give you my honest opinion about Col.

14 Pipta, or you want me to give you another description?

15 Q

I want you to tell us what you said in the letter to

16 the superintendent;?

17 A

At that time. Major Pipta confiscated property I had.

18 Mr. Randall Music was the superintendent at that time. I

19 wrote a letter to Mr. Music, and explained to him the

20 circumstances of the property having been taken. It turned

21 out that the property after it had been taken was lost, and

22 that was the essence of my complaint to Mr. Music. Mr.

23 Music called Mr. Tanick, who was the property officer, and

24 wanted to know where my property was. Here showed up Mr.

25 Pipta with my property, and Mr. Music told him to return

Pauline A. Stipes Official Federal Reporter

property to me.

2

That was the cause of friction. Also, when the staff

3 barber shop was opened, I bought a coffee pot, a coffee

4 maker in order to invite officers that came to get a hair

5 cut for a cup of coffee. He confiscated that also. Mr,.

6 Music made him give that back to me, and he resented that,

7 and that was the source of the friction between me and Mr.

8 Pipta.

9

Mr. Pipta did everything that he possibly could to

10 catch me doing something wrong, and give me a disciplinary

11 report. All the time I was there, all the years I spent

12 there, he couldn't give me a consultation for correction

13 advice, much less a disciplinary report, and that is what

14 the problem was with Mr. Pipta.

15 Q

And that occurred in Mr. Music's administration?

16 A

1985.

17 Q

Or sometime while Mr. Music was the superintendent,

18 you had this conflict with Major Pipta?

19 A

Yes.

20 Q

Do you recognize the second letter which is in the

21 gjroup that you looked at?

22 A

You mean about Mr. Music sticking his neck out?

23 Q

Do you recognize the letter?

24 A

Y_esf that is my letter.

25 Q

December 4, 1985?

Pauline A. Stipes Official Federal Reporter

152

T

2Q

That was five days before Mr. Music left as

3 superintendent of GCI?

4A

Yes.

5Q

And did you not say — this is directed to major

6 Pipta?

I

7A

Yes.

8Q

Did you not say as of yourself, I consider you a

9 friend, and have great respect for you as a man. I also

10 give you my word?

11 A

I had nothing against the man. His problem was his.

12 I had no problem with him.

13 Q

in 1985, you regarded Major Pipta as a friend of

14 yours, one whose friendship you valued but then after some

15 period of time passed, you decided that Major Pipta was

16 your enemy, and in the letter of 1988, you describe him as

17 always during the time you were at GCI wanting to oet^at

18 you, is that correct?

19

MR. AMLONG: Objection, argumentative.

20

THE COURT: Overruled.

21

THE WITNESS: As I said before, I was never

22 resentful. If you want me to go into detail, I will give

23 you all the details. They are all right there in the 24 letter. You want me to go through it? 25 BY MR. DAVIS:

Pauline A. Stipes Official Federal Reporter

353

1 Q

We will put the letter into evidence.

2 A

Okay.

3 Q

And one of the other complaints that you voiced to

4 the assistant superintendent in the letter to him had to do

5 with the fact that Mr. Lambdin never allowed you to cut hi.s

6 hair, is that not correct?

7 A

I cut his hair three or four times.,,

8Q

And did you not say in your letter to him, as for my

9 feel inqs for the man, speakinq of Mr. Lambdin, it always

10 hurt the hell out of me that he very rarely came to me for

11 a hair cut?

12 A

yes, it did hurt my feelings.

13 Q

It hurt your feelings because you are a proud and

14 sensitive man?

15 A

I was good at what I was doing, and I didn't think in

16 the City of Belle Glade there was anybody better than I am,

17 period.

18 Q

And you encountered as what was a slight or insult,

19 or act of injustice, you get mad, angry, and hurt?

20 A

I didn't get angry about him not coming. My feelings

21 were hurt, that was all.

22 Q

Now, you indicated that you were in the hospital for

23 three weeks?

24 A

In fact — . Y e s .

25 Q

It was 10 days, was it not?

Pauline A. Stipes Official Federal Reporter

1 A I t was three weeks.

2 Q

The incident occurred on the 14th of February, is

that correct?

4 A

That is correct.

5 Q

You were released from the hospital on the 23rd of

6 February?

7 A

That is correct. Then I was put back in the hospital

8 again.

9 Q

That is 10 days?

10 A

I was put back into the hospital again. I went into

11 the dormitory, and I couldn't get out of the bunk. I had

12 to be helped to go to the bathroom.

13 Q

Now, you don't know whether Mr. Joe DeShields who was

14 the inmate that was involved in the altercation with you

15 received disciplinary treatment or not, do you?

16 A

I don't know.

17 Q

For all you know, Mr. DeShields may well have been

18 disciplined?

19 A

Quite possible.

20 Q

Now, you said that in D dorm during the time that you

21 were there, you never saw more than one officer assigned to

22 that dorm?

23 A

There is always one officer assigned to each dorm.

24 Q

Only one?

25 A

Only one.

Pauline A. Stipes Official Federal Reporter

555
1 II Q Never have you seen more than one?

2 A

Sometimes when they conduct a count, two officers in

3 ^he dorm.

4 Q

You mean the sergeant will come there?

5 A

They will count, and the count is included.

6 Q

And the whole time you were there, you never saw more

7 than one officer assigned to the dorm itself?

8 A

No.

9 Q

All right.

10

MR. DAVIS: Your Honor, I would like to offer

11 as the defendant's exhibit, and I only have one copy of

12 this, if we could have a copy made.

13

THE COURT: Are you referring to one or the

14 other of these two letters?

15

MR. DAVIS: The two letters are attached as

16 proposed exhibit 35.

17

THE COURT: All right. Defendant's 38 is

18 ^marked for identification, two letters from Mr. Jonas, one

19 to Mr. Pipta, and the other to Willie Floyd.

20

MR. DAVIS: That is right.

21

THE COURT: Any objection?

22

MR. AMLONG: Your Honor, no.

23

THE COURT: All right. That exhibit is.

24 received without objection.

25

MR. DAVIS: Let me change it from 35 to 38.

Pauline A. Stipes Official Federal Reporter

356

1

(Defendant's Ex. 38 received into eivdence.)

2

MR. DAVIS: No further questions.

3

THE COURT: Any redirect?

4

MR. AMLONG: Your Honor, may review my notes?

5

THE COURT: Sure.

6

MR. AMLONG: I have no redirect.

7

THE COURT: All right. You may step down.

8

(Witness excused.)

9

THE COURT: All right. You have another

10 witness. You may step down.

11

MR. LIPMAN: I have exhibit 5, 6, and 8,

12

THE COURT: Are there any objections to these,

13 gentlemen?

14

MR. DAVIS: No, your Honor.

15

MR. LIPMAN: Your Honor, I want to kind of

16 clear up our evidence. There was provisional objection or

17 concern with regard to the video deposition. Has that been

18 satisfied? You reviewed it, and that is no longer a

19 problem?

20

MR. DAVIS: I received a copy at lunchtime. I

21 don't have a video machine here.

22

MR. LIPMAN: We will leave that pending. We

23 have Dr. Caddy for tomorrow morning.

2 4

THE COURT: Is he the only witness you have

25 left?

Pauline A. Stipes Official Federal Reporter

T~

MR. LIPMAN: With time remaining I would like

2 to raise again the opportunity to have Mr. Saunders

3 testify, and again, as I represented to His Honor yesterday

4 morning, it doesn't fit within the four square corners of

5 our mission this week as far as the October order.

6

As I said, represented to His Honor, I have been

7 contacted literally every month for several years since the

8 December 1985 proceedings in this case, and been informed

9 by Mr. Saunders he believes certain retaliatory actions

10 have been taken against him due to his participation in the

11 case, and would request that he have an opportunity to

12 testify.

13

THE COURT: I was looking at my notes. I

14 thought we ruled on that, perhaps I haven't.

15

MR. LIPMAN: If you had, I missed it.

16

THE COURT: What is your position, Mr. Davis,

17 Mr. Meginniss?.

18

MR. MEGINNIS: We are opposed to this. It is

19 beyond the scope of what our mission is here. If he does

20 have some type of complaint, he can plead it in some

21 fashion, and we can entertain it. At this time, without

22 any opportunity for adversarial response, I think it is

23 highly inappropriate. We have been through this once

24 before with another person.

25

MR. LIPMAN: In response, I think counsel will

Pauline A. Stipes Official Federal Reporter

358 1 recall that I did raise this specific matter with them when

2 we were together in mid-December at GCI, and informed them.

3

MR. DAVIS: It was raised on December 15th. It

4 was indicated—

5

MR. MEGINNISS: We still have no ground rules

6 or framework within which to operate.

7

THE COURT: Yes, I am afraid so. I have to

8 sustain that objection. I do so for the record, if I

9 haven't done it previously. You did mention it. I have a

10 note on it in the beginning. The objection is sustained.

11

MR. LIPMAN: That being the case, and I

12 understand the Court's ruling, with the exception, then, as

13 we indicated earlier today of Dr. Caddy's testimony, and

14 the matter—or any matter concerning the video deposition,

15 plaintiffs would rest.

16

THE COURT: All right.

17

MR. LIPMAN: I don't know if we have time now.

18

THE COURT: Let me be sure the record is clear.

19 On the three last exhibits, 5, 6, 8, is there no objection

20 to these?

21

MR. MEGINNIS: That is correct.

22

THE COURT: Okay, they are received without

23 objection.

24

(Plaintiffs' Exs. 5, 6, 8 received into evidence.)

25

MR. DAVIS: May I ask counsel, my memory as I

Pauline A. Stipes Official Federal Reporter

$59

get older fails me, are the attachments to the answers to

interrogatories solely the answers that were provided?

MR. LIPMAN: Yes.

4

MR. DAVIS: We have no objection.

5

THE COURT: Okay. Since it is so close to 5,

6 we will recess for the day. Now, let me tell you, there is

7 a judges' meeting tomorrow afternoon. We will only have

8 half a day. We will go until 12, or shortly thereafter, if

9 we can break at a time which is convenient to finish up

10 with a witness. I imagine Dr. Caddy will take a while.

11

MR. AMLONG: I think Dr. Caddy will take

12 between a half hour, and an hour and 15 minutes on direct.

13 I am not sure how long on cross.

14

THE COURT: All right. We will simply do what

15 we can. If you will be ready to follow after Caddy is

16 through tomorrow morning with whatever witnesses you have,

17 and take whatever time up to around noon, and we will

18 proceed on Thursday beginning 9 o'clock. That will be the

19 schedule. We are in recess until tomorrow morning at 9.

20

(Thereupon, a recess was taken at 4:50 p.m.)

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

 
 LaMarca v. Turner

II m m

BH

••

BH •• • •

PC-FL-007-032

160

«•**••
2

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA

3

4

5 ANTHONY LaMARCA, et al.,

Plaintiffs,

6

VS.

7

CHESTER LAMBDIN, et cetera.,

8

Defendant.

) Case No.82-8196 ) Civ- PAINE

9

10

West Palm Beach, Florida

11

January 10. 199Q

12

9:00 a.m.

13 APPEARANCES:

14

DAVID MICHAEL LIPMAN and WILLIAM ROBERT AMLONG,

ESQS., on behalf of the Plaintiffs.

15

MICHAEL B. DAVIS and WALTER M. MEGINNISS,

16

ESQS., on behalf of the Defendants.

17

18

19

The above-styled case came on for Trial before

the Hon. James C. Paine, U.S. District Court, at the U.S.

20 Federal Courthouse, West Palm Beach, Florida, on the 10th

day of January, 1990.

21

VOLUME 3

22

23

24

25

Pauline A. Stipes Official Federal Reporter

$61

T~!1

INDEX

2

3

WITNESS

DIRECT

CROSS REDIRECT RECROSS

4 GLENN ROSS CADDY 362

387

413

FRANK C. NAPPI 419

452

465

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Pauline A. Stipes Official Federal Reporter

562

THE COURT: Good morning, gentlemen.

2

Are we ready with Dr. Caddy?

3

MR. AMLONG: Yes.

4

MR. DAVIS: We introduced an item into evidence

5 yesterday, two letters, offered by the inmates. Those are

6 the only copies we have. Could we make arrangements to

7 have them copied?

8

THE COURT: Yes, those are defendants exhibits

9 38, two letters marked together as Defendant's 38, see if

10 we could get copies for counsel here.

11

Let me have those exhibits 5, 6, and 8.

12

Call your witness, please.

13

MR. AMLONG: Dr. Caddy.

14

GLENN ROSS CADDY. PLAINTIFFS' WITNESS SWORN.

15

THE COURT: Please be seated. State your name.

16

THE WITNESS: Glenn Ross Caddy, C a d d y .

17

DIRECT E X A M I N A T I Q N

18 BY MR. AMLONG:

19 Q

Dr. Caddy, tell the court what you do for a living.

20 What your profession is?

21 A

I am a clinical psychologist.

22

MR. AMLONG: May I approach the witness, Your

23 Honor?

24 BY MR. AMLONG:

25 Q

Dr. Caddy, I show you a curriculum vitae by yourself,

Pauline A. Stipes Official Federal Reporter

$63

T would you tell me if that is prepared by you, and if it is
2 up to date?

3A

It is relatively up to date. This particular one is

4 about 9 months old, but it is close to mark.

5

THE COURT: I am sorry, I didn't hear you.

6

THE WITNESS: This is close to being up to

7 date. It is 8 or 9 months old, I think, this particular

8 one.

BY MR. AMLONG:

10 Q

Are there any significant additions you would make to

11 the CV?

12 A

Really more just some articles that were in press,

13 and now published. Nothing that really changes the

14 complection of my overall experience, and training.

15

MR. AMLONG: Your Honor, I move into evidence

16 plaintiffs' No. 1.

17

MR. DAVIS: .No objection.

18

THE COURT: Received without objection.

19

(Plaintiffs' Ex. 1 received into evidence.)

20 BY MR. AMLONG:

21 Q

Dr. Caddy, have you previously testified as an expert

22 in this case?

23 A

Yes, I have.

24

MR. AMLONG: Your Honor, I believe the court is

25 familiar with Dr. Caddy's credentials, and with his

Pauline A. Stipes Official Federal Reporter

364 1 II previously being qualified as an expert. I propose to

2 short circuit—

3

THE COURT: That is agreeable with me.

4

MR. AMLONG: Does the defense object to his

5 being qualified as an expert?

6

MR. DAVIS: No.

7

THE COURT: You may proceed.

8

MR. AMLONG: Thank you.

9 BY MR. AMLONG:

10 Q

Dr. Caddy, in your clinical practice, have you had

11 the occasion to treat persons who have been the victims of

12 recent rapes?

13 A

Yejs.

14 Q

And have you found there to be a diagnosis that j.s

15 common to those patients?

16 A

Yes. The diagnosis that most commonly fits such

17 individuals is an adjustment sorted with mixed emotionaj.

18 features. The nature of that diagnosis implies that you

19 have an acute episode or crisis, and that people deal with

20 that crisis in various different emotional ways, and often

21 with a set of emotions that are really quite mixed.

22 Anxiety, problems with sleep disturbance, tearfulness,,

23 crying, inability to cope, inability to concentrate. Some

24 forms typically of short term depression.

25

In some instances, this process becomes prolonged,

Pauline A. Stipes Official Federal Reporter

1 and if the adjustment, post rape adjustment is poor, or if

2 there is further abuse or violence that the person is

3 subjected to, you get secondary consequences, and what

4 .starts off as an adjustment difficulty becomes a more

5 severe form of post-traumatic stress disorder, but that

6 second condition is rather unusual, and it is normally the

7 adjustment difficulty diagnosis.

8 Q

Doctor, tell the court, please, what symptomotology

9 is common to rape victims?

10 A

Well, I think it varies substantially, and a lot of

11 the variance is connected to principal eventg. One of them

12 is the pre-existent emotional state of the person who

13 becomes the victim of the rape, and second is the very

14 nature of the rape itself.

15

.Firstly dealing with the issue of pre-existent

16 personality, if you have a person who is extremely

17 emotionally well put together, strong, robust, healthy, of

18 normal, well integrated emotional functioning, then you

19 tend to find that person is much more able to cope with the

20 emotional consequences of rape, and, hence, the post

21 adjustment period, if you like, is often relatively

22 competent.

23

If, on the other hand, you have a lot of emotional

24 deterioration, major problems of adjustment difficulties in

25 coping generally as a pre-existent event, you are more

Pauline A. Stipes Official Federal Reporter

366

1 ^likely to have maladjustment"!

2

But, in addition to that, on the outside, outside of

3 the prison system, there are many instances when although

4 rape is a crime of violence, or event of violence, it is

5 not necessarily construed as life threatening. The general

6 evidence is, for example, date rape is an unfortunate

7 event. That doesn't constitute a life threatening event in

8 an individual.

9

Jn a life threatening circumstances, such as many I

10 .testified about previously in this court, the dilemma that

11 these people see themselves as extremely vulnerable to

12 great threat. That is, they are raped on the conditions of

13 required submissions, in most instances with the threat of

14 great violence, or they are advised that if they don't

15 comply, then they will be otherwise hurt at a later point.

16

Those sort of events sets the stage for more

17 difficulties of adjustment. Not only do we have the

18 physical acts in this instance, or these instances of

19 overpowering, and then anal penetration, what we also have

20 is threats to physical safety, and often, a long history

21 prior to the physical rape of threats and seductive

22 commentary, and the sort of events that set the stage for

23 an overall fear response.

24

In those situations, you are more likely to have a

2 5 far greater degree of maladjustment. When you have that

Pauline A. Stipes Official Federal Reporter

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1 maladjustment, it will take the form of generalized anxiety

2 .phenomena. I can't speak to in a particular case, I can't

3 predict in a particular case how that is going to go, but

4 you are going to have difficulties with sleep difficulties,

5 adjustment, generalized fear responses, overall problems in

6 being able to cope and concentrate, worry about security

7 questions, after the initial rape. The question of whether

8 you can tell anybody, and if you are going to tell

9 somebody, are they going to take you seriously. What is

10 the sensitivity with which you are going to be dealt with.

11 A whole lot of questions become relevant to setting the

12 stage of anxiety, or depressive responses, and for some

13 people, this really becomes a major existential crisis.

14

For some men who have been raped there is the sense

15 that they have lost their manhood. There is the sense that

16 they have been degraded, but not only degraded, but made

17 almost woman like, and that is an event that seems to

18 appear more in these rather poorly educated in particular

19 men who have had an attitude of themselves as being sort pi

20 matcho with women, and having been then raped, they

21 experience the sense of having a lot of their masculinity

22 removed from them.

23

It is not a rational belief system, and while it is

24 irrational, it, nevertheless, is a phenomena that appears

25 rather routinely.

Pauline A. Stipes Official Federal Reporter

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1 II

Those — some of these are indicators that you get

2 following these sorts of more violent rapes.

3 Q

Would nightmares be consistent with the symptoms?

4 A

They would. Not all patients would experience

5 nightmares, but nightmares are inability to have free sleep 6 without sleep disruption, difficulty going to sleep at 7 night because of the worry about the possibility of being

8 intruded upon during the night.

9

Many of the events tend to occur at night. All of

10 those things would be consistent with adjustment.

11 Q

With continued fear if you ever get out of a prison,

12 and have sex with a woman, she would know that you have

13 been raped, is that consistent?

14 A

It is not a general response. It is an idiosyncratic

15 response. It is a response that occasionally occurs. It

16 is connected to the not rational view that one's own

17 sexuality has been violated where others may be able to

18 observe that you are less of a man, lessening of your male

19 status would appear in the issue of belief that a woman may

20 somehow know this.

21 Q

Do these symptoms require intervention of a

22 psychologist if they are going to be stopped!?

23 A

Not necessarily a psychologist, but certainly a

24 person who has expertise in treatment of patients who have

25 been sexually abused^.

Pauline A. Stipes Official Federal Reporter

$69

1

What happens on the outside Is that typically people

2 who have been — who have alleged rape are provided with

3 ^immediate medical attention, and then referred to a rape

4 crisis center, and people who are especially trained in

5 rape crisis counseling initiate what is known as crisis

6 managementf and depending on the adjustment they are 7 making, following that crisis intervention, they would

8 ejther be provided with services that may be of a

9 psychiatric, or psychological nature, or mental health

10 t;ounsel especially qualified in this area may provide some

11 services.

12 Q

In the outside world, is it typical a rape victim,

13 goes out and seeks a rape crisis center, or the rape victim

14 delivered by the authorities?

15 A

No. Typically — well, ^hings have changed over the

16 last 20 years, but today, the strategy is that it is a very

17 proactive procedure so that a victim is brought into the

18 police system, and into the medical system, and as soon as

19 is practicable, that person is provided with direct contact

20 with the mental health professional at a rape crisis

21 center.

22

It is also the case, increasingly that certain

23 personnel in some police jurisdictions have received,

24 specialized training to increase their sensitivity. This

25 is especially the case in dealing with women, but the

Pauline A. Stipes Official Federal Reporter

J70

~~I sensitivity of tTie special needs of the woman who has been

2 raped, so one of the things we have seen is increase in

3 sophistication with how the police authorities, as well as

4 the community at large, is dealing with a victim of a rape.

5 Q

Is it considered sufficient in the outside world to

6 merely have psychological counseling available for rape

7 victim should that rape victim choose on his or her own to

8 go seek it out?

9 A

No—

10

MR. DAVIS: Excuse me, I think something that

11 is considered sufficient in the outside world hardly speaks

12 to the question of proper opinion.

13

THE COURT: We better stick to the problem at

14 hand.

15 BY MR. AMLONG:

16 Q

Doctor, would you consider it to be sufficient in

17 prison to have a psychological department that would

18 respond to a rape victim's request should that rape victim

19 choose to seek out the psychologist?

20 A

; think that within a prison system, that system has

21 a proactive duty of treatment. If the—whether the person

22 suffering from a medical emergency, or psychological

23 rcrisis. I do not presume that the system must provide

24 treatment. I think that the system must provide an

25 evaluation that makes a determination if treatment is

Pauline A. Stipes Official Federal Reporter

B71

1 necessary, and if treatment is necessary, what treatment

2 t^hen should be provided; but I think that that system of

3 allowing the inmate to contact the treatment delivery,

4 really requires a broad ranging understanding within a

5 prison facility pf standard operating procedures connected

6 to this matter, and whether one be on the nursing staff, on

7 the psychology staff, in the medical unit, or whether that

8 person be one of the correctional officers, there needs to

9 be a common understanding of the management of these sorts

10 of events so they are dealt with sensitively.

11 Q

Has it been your experience that rape victims feel

12 yiolatedf feel further invaded by this proactive approach?

13 A

No. It is generally the case that rape victims

14 respond extremely favorably to rape crisis management, and

15 that is exactly what we would expect that they would do.

16 Those that are most likely to be avoidant of such services

17 are likely to not acknowledge the existence of the rape in

18 the first place, and it would seem to me the only risk of a

19 person rejecting such services is if they perceive the

20 services to be not relevant to them, or of little value,

21 then they are unlikely to come back.

22 Q

Doctor, within a professional probability, would you

23 expect increased rape crisis services to increase the level

24 of reporting and prosecution of rapes?

25 A

Yes, I would.

Pauline A. Stipes Official Federal Reporter

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1

MR. DAVIS: Objection, there is no basis that

2 this witness has any expertise in such an area.

3

MR. AMLONG: May I follow this up?

4

THE COURT: Yes, I think so. I will overrule

5 the objection. I am not sure what impact that question and

6 answer ought to have on this case. I will overrule the

7 objection. Go ahead.

8 BY MR. AMLONG:

9 Q

Doctor, have there been studies showing whether or

10 not the availability of rape crisis treatment increases

11 rape reporting?

12 A

Well, not specifically that,.but there are — there

13 j.s a general history in literature showing, firstly, an

14 increase in rape reporting over the last 20 years^. In that

15 area, and I don't think there is any basis to presume

16 somehow there have been more rapes, but in increase

17 reporting, and increase sensitivity, and increased

18 recognition that it is acceptable to report these events,

19 and that something will be done to protect the individual

20 who is the victim. We increase the probability that a

21 victim will come forward.

22

That is true not only in the area of rape, but in

23 other areas dealing with general mental health

24 consideration. If we have systems in place to protect a

25 person who chooses to seek out specialized services then

Pauline A. Stipes Official Federal Reporter

$73 1 what we f i n d i s ~"utiTlzatX6ris"6f ^servTces t y p i c a l l y

2 increases.

3 Q

Now, doctor, in connection with your preparation for

4 this testimony, have you interviewed several of the Glades

5 Correctional inmates who have claimed to you to have been

6 raped?

7 A

Yes, telephonically, I have made contact with a small

8 number of those people.

9 Q

And did you read Mr. White's, Mark White's

10 deposition?

11 A

Yes, I did.

12 Q

Now, in your opinion as a psychologist, were the

13 symptoms that those persons described consistent with the

14 symptoms of rape victims?

15 A

Y j s ' t n e y were.

16 Q

And would those persons have benefitted through a

17 rape crisis intervention system?

18 A

Yes.

19 Q

Can you tell us how, specifically?

20 A

Well, each individual may have benefitted slightly

21 differently, but the principal issue is that each one of

22 these men, if they had available to them a sensitive access

23 to protection, and to a belief that, in fact, their

24 reporting had merit, that is to presume that they have been

25 raped until shown otherwise, rather than to doubt the

Pauline A. Stipes Official Federal Reporter

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1 II possibility of rape until it were proved. What we would
2 immediately accomplish is to bring those people into a more

3 sensitive system.

4

If, in addition, they were provided with access to an

5 (evaluator) who was competent to make determinations about

6 the then existent mental health, we would be in a better

7 position to know today what specific services they may have

8 benefitted from.

9

I am not going to testify that I know specifically

10 exactly what each one of these men should have had at that

11 particular point because I would have needed to havet 12 evaluated them at a time gone by,,. I am not on the ground

13 at this point knowing exactly what each one of them needed,

14 but a system that was in place could easily provide that,

15 and it seems to me at very little cost.

16

THE COURT: Why do you say very little cosj:?

17 jt sounds to me like it would be quite expensive.

18

THE WITNESS: There are people in these units.

19 in these medical units that could be trained in crisis,

20 management, that should already be trained in crisisn 21 management of rape. There is the ease of instituting

22 standard operating procedures for rape management. Those

23 administrative procedures can be instituted at essentially

24 no cost. There would be, perhaps, some cost connected to

25 training personnel on sensitive crisis management of rape

Pauline A. Stipes Official Federal Reporter

B75

1 II victims.

2

THE COURT: you are assuming that trainable

3 personnel are already in place.

4

THE WITNESS: Well, that is the case, Your

5 Honor. Well, it seems to me that in a prison system, the

6 authority comes from the top, to a fair degree, and in that

7 system, if procedures are mandated such that when a person

8 complains that they have been raped, if the presumption by

9 administrative fear, they are prepared to have been raped

10 unless demonstrated to the contrary, that is a different

11 mentality than the presumption they are maneuvering to get

12 out of everything or they haven't really been raped, or

13 even if they have, it is no big deal.

14

Those conceptual understandings that could underly

15 standard operating procedures, if instituted with some

16 training at least at the higher levels, I think would have

17 some impact at all levels in that system. And certainly,

18 the people who exist within medical units should have the

19 ability to manage these matters.

20

From what I can see of my review of the depositions

21 of the medical specialists at Glades, one of the problems

22 seems to be that it never gets reported to them. There is

23 a breakdown in the communication process such that it never

24 gets reported to them.. And, so, it is never dealt with as

25 if it is a mental health process crisis.

Pauline A. Stipes Official Federal Reporter

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ahead.

THE COURT: ATT"rTgIvE^ Thank you, sir, go

BY MR. AMLONG:

The mental health unit screens incoming inmates, and as part of that reviews their scores in the Minnesota Multiphasic Personality Inventory, are you aware of that

test?

8 A

Yes, I am, and I am aware that is one of the

9 procedures they do, yes.

10 Q

Is it possible for the mental health unit, and

11 classification bv reviewing the MMPI to tell whether or not

12 an inmate is going to interact violently with other inmates

13 in the prison?

14 A

The answer to that is not specifically solely by

15 reviewing the MMPI; but if, in fact, those people are

16 trained to look for three indicators on the MMPI, plus if

17 ^he person can be demonstrated to have had a previous

18 aggressive history, then three indicators on the MMPI, with

19 evidence of a previous aggressive history is extremely

20 predictive of future aggressive behavior. I cannot state

21 that that aggression going to take the form of rape, but I

22 am suggesting that violent behavior is going to be

23 relatively well predicted^

24 Q

Doctor, what are the three scales in the MMPI?

25 A

First scale would be higher elevation in the

Pauline A. Stipes Official Federal Reporter

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1 psychopathic deviate scale.^ That is a scale that not only

2 measures tendency toward sociopathy, but at relatively high

3 levels reflects a lack of concern or caring for other human

4 beings. A very good predictor of violent behavior.

5

The next scale that they would look at is the

6 schizophrenia scale, because while the schizophrenia scale,

7 higher level measures schizophrenia behavior, at lower

8 levels it measures generalized maladies in coping, poor

9 judgment, limitations of psychological boundries, meaning

10 that the judgment that would influence many of us not to

11 act in certain ways often broken down in patients who have

12 high indicators on schizophrenia scale, and the third index

13 scale is the mania scale.

14

The mania scale measures underlying emotional

15 intensity. People who are very high on the mania scale

16 sometimes are manic in their manifestations of behavior.

17 They may speak extremely quickly, and sometimes very manic

18 depressive illness, slightly lower levels are predicting a

19 forced intensity of behavior. These people have trouble

20 controlling impulses. They are intense people. You put

21 those three together with a previous history of physical

22 violence, and just as they predict serial killers, when

23 there is previous evidence of killing, so too, they also

24 predict at lower levels dangerousness, and those people, in 25 my view should be specially handled in a prison systemT

Pauline A. Stipes Official Federal Reporter

1

It is not as if we don't have any of the data

2 available. It is just that we don't handle them that way.

3 Q

Doctor, previously, you were discussing how to handle

4 persons claiming to be raped. vFrom your experience as a 5 psychologist, how likely do you find that someone is going

6 to claim to have been raped in prison without having

7 actually been raped?

8 A

I don't believe that we have really good research

9 studies defining that, but the probability of a man in

10 prison claiming to be raped when he wasn't, I would

11 consider to be extremely low. Rape is — the reporting of

12 rape for many men in that system is an emotionally

13 degrading exercise. While many men in prison are willing

14 to lie and manipulate, to claim rape is a very low

15 probability manipulation by comparison with almost any

16 other manipulation that one might choose to make.

17 Q

Why is that, Doctor?

18 A

Because it goes to the heart of something that many

19 of these men would find very difficult to deal with—their

20 extreme vulnerability, and sexual vulnerability to another

21 person. Many of the men who would report having been raped

22 would not define themselves as homosexual, and, therefore,

23 to be sexually attacked by another man as well as

24 physically attacked is going to be degrading to their sense

25 of their manhood. That is not something that most men,

Pauline A. Stipes Official Federal Reporter

579

1 II even men in prison, wish to bring to the identification of

2 other people.

3

Especially in a prison system where there is so

4 little confidentiality, that to reveal that is going to

5 reveal to probably a lot of people that they have been the

6 victim of another person.

7

And in some instances, of course, rape isn't a single

8 event or occurrence, it is a multiple. And there you have

9 the further degrading that this person didn't have the

10 ability to do terribly much themselves to prevent this

11 occurrence. So, overall, you get a further sense of the

12 degrading quality of that act, and the reporting connected

13 to it.

14 Q

Doctor, to sum up, should Judge Paine choose to grant

15 injunctive relief in this action, what recommendations

16 would you make to the court for the provision of treatment

17 po persons who allege that they have been homosexually

18 raped at Glades Correctional institution?

19 A

Well, .1 would specifically establish from the highest

20 levels of the institution, and, in fact, throughout the

21 State of Florida, a set of standard guidelines,

22 administrative guidelines, for the handling of physically

23 abused men, and in particular, sexually abused men.

24

I suggest that the sexual abuse is a special quality

25 of the physical abuse because it is in many respects more

Pauline A. Stipes Official Federal Reporter

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IT] degrading than other forms of physical abused And thos.e

2 administrative guidelines should mandate the curteous and

3 respectful handling of the inmate with the underlying

4 presumption that the rape is more likely to have occurred

5 than not to have occurred.

6

That a medical screening be provided. And that the

7 approach not simply be one of collecting evidence of the

8 rape, but also providing sensitive care to the physical

9 needs of the person, and that contemporaneously with that,

10 that the medical depagtment provide a proactive strategy of

11 immediate crisis intervention care by the most qualified

12 specialist, mental health counselor, available.

13

That each facility provide at least some degree of

14 graining to both guards, supervisors, and the medical

15 departments on the sensitive handling of rape, and that we

16 — and that we provide after an evaluation additional

17 services as is necessary both to insure the safety and

18 protection of the victim, and his or her, mainly his,

19 ongoing care so that we minimize in the institution, we

2 0 minimize his vulnerability to having further adjustment

21 difficulties.

22

For example, created by having him put back in the

23 same environment as the rapist, and that we further provide

24 for a degree of counseling to these individuals on an

25 individual basis rather than a group, because of the

Pauline A. Stipes Official Federal Reporter

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1 sensitive nature of the issues involved, and that we

2 prioritize those services as urgently needed, rather than

3 adopting the view that, well, if he really needs us, we are

4 sort of there, and he can come and talk to us, which seems

5 fco be the way things happen at the present time.

6 Q

Doctor, how much additional education do you think

7 that it would take to train someone who is an M.D.,

8 psychiatrist, or Ph.D., or psychologist in this crisis

9 intervention?

10 A

Well, we have a mixed bag in our correctional system.

11 But if that person is generally competent— See, the

12 problem is, j.f they are quite generally competent, they

13 shouldn't need any training. They know how to handle this.

14 They should have had exposure. If they didn't have

15 specific rape crisis, they should have had other crisis

16 intervention, or they should. My sense of it is what they

17 might need is a maximum of an hour, or hour and a half otf 18 training dealing specifically with rape issues, and then

19 from there, they would use the normal skills that they

20 should have available to them as experts in crisis

21 management, simply applying those particular skills to the

22 enigmas of the individual case.

23

But we also need to train those people to be

24 proactive in seeking out the services, and create a link

25 between the first line of contact, typically the guard, the

Pauline A. Stipes Official Federal Reporter

B82

1 correctional officers, and the person who is going to be

2 evaluating, determining, and providing services to these

3 people.

4

THE COURT: I am not sure I understand the use

5 of your term proactive. What do you mean by that?

6

THE WITNESS: That we set about to create a

7 system that seeks out this individual. The concept of

8 proactive mental health care is seen generally in a

9 community mental health system where what we attempt to do

10 is reduce the risks of further deterioration of a person's

11 functioning by getting them as early in the development of

12 the problem as is possible. Taking them at a crisis, and

13 working with them to resolve the crisis so that it doesn't

14 lead to other problems that become more significant.

15

We have some major problems in a prison system.

16

Firstly, we have a highly controlled environment

17 where the victim and perpetrator often co-exist. We have a

18 tremendous insensitivity to the victim with often

19 preconceptions by guards, and people like that. I think

20 those preconceptions can be managed by some training by

21 sensitivity training, and to the extent they can't be, then

22 they can also be influenced by administrative fear. That

23 doesn't make the people perfect, but it should improve the

24 system, and there should be an accountability for failure

25 to follow those guidelines.

Pauline A. Stipes Official Federal Reporter

$83

1 II

But the concept of proactive in the mental health

2 field specifically is that the psychologist or psychiatrist

3 or counselor doesn't sit in the medical department waiting

4 for a prisoner to get around to coming to visit them, and

5 reporting that they have been raped, but the minute the

6 first contact of that allegation takes place, that person

7 ought to be immediately shunted to the medical department,

8 and the medical department ought to be able to handle that

9 as a crisis, and the people who shunt to the medical

10 department ought to be on notice that that is a

11 requi rement,.

12

THE COURT: All right.

13 BY MR. AMLONG:

14 Q

Doctor, how many hours of additional education would

15 you think that it would take to train persons with Master's

16 ^egree level education to provide the crisis management

17 that you are talking about here?

18 A ffot more than two to three hours.

19 Q

What about the actual correctional officers, and

20 sergeants and lieutenants for the level that you would

21 anticipate there interacting in the system, how much

22 additional training do you think it would take for them?

23 A

j: think those people ought to be exposed to at least

24 a couple hours of sensitivity training surrounding these

25 issues, and this be done on a recurrent basis.

Pauline A. Stipes Official Federal Reporter

$84

1 II

For example, several hours in a afternoon to be

2 repeated, perhaps, on a following week so that we get all

3 the giggles, and rubbish, and some of the biases being

4 dealt with.

5

What we are really talking about is influencing

6 people's attitudes so their behavior will be more readily

7 able to comply to the administer of guidelines that I would

8 recommend they be asked to follow. We are basically taking

9 people who have become largely insensitive in part as a

10 result of working in that system, and probably in part out

11 of fear in trying to deal with it, and the overwhelming

12 task of managing, conscientiously. They are all in that

13 system, and giving them specific guidelines for this sort

14 of problem. We are not talking about massive change of

15 their belief systems about their role as correctional

16 officers, but reasonably their role as special social

17 workers, if you like, in pulling a person in a crisis out

18 of that situation.

19 Q

Doctor, you also told the judge that you thought —

20 A

Could I —

21 Q

Sure.

22 A

I think another part of that training is that we haye

23 to have them understand that their first responsibility

24 .needs be to sensitively handle the person rather than %o9 25 investigate whether the events took place as alleged. The

Pauline A. Stipes Official Federal Reporter

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1 investigation can quite easily follow subsequently.

2

THE COURT: v.ou think your reversal of what the

3 present presumption is is very important?

4

THE WITNESS: I think what we currently do in.,

5 the police mentality we set out to investigate whether

6 something has happened. Now, if a man has had a bowel

7 movement within a relatively brief period of time of being

8 raped, the probability of finding semen may not be all that

9 great. And so — and the question becomes, well, what does

10 this man have to be attacked with before there is tissue

11 damage, and so we get, you know, and so we get into the

12 entire question of focusing on the possible accuracy or

13 inaccuracy, the lies, the accusation as opposed to the

14 management of the person.

15

When — There is plenty of time to investigate the

16 matter after you initially handle the situation. But if

17 you adopt the view that you investigate, and if you can't

18 confirm beyond the shadow of the doubt the event, what you

19 do is, you presume the person isn't telling you the truth,

20 and then why would you consider making available mental

21 health care? It wouldn't be an issue, because you are

22 satisfied that person is lying, or you are not satisfied

23 that it really happened.

24

If it didn't, you see, there is a mentality that

25 says, well, if you were a real man, you would have done

Pauline A. Stipes Official Federal Reporter

$86

"X something about it, or you will have to get him back, or

2 whatever the argument is. There really is a insensitivity 3 of the vulnerability of men to be raped by these guys, and 4 it is probably in part their own embarrassment, and 5 discomfort, and own lack of understanding how to deal with

6 it.

7

And so, I am talking about really more sensitivity

8 training to them, as well as instituting standard operating

9 procedures.

10 BY MR. AMLONG:

11 Q

Doctor, you talk about providing individual therapy

12 to rape victims. In your experience as a clinical

13 psychologist, hnw m^ny hours of individual therapy would

14 you estimate that would take, not to cure a rape victim's

15 entire array of personal problems, but to simply move him

16 back to the place where he was prior to the rape occurring,

17 and to make him whole for that rape?

18 A

It is very difficult, very difficult to answer that

19 question, Mr. Amlong, because, as I suggested previously,

20 the conditions of the rape, and pre-existent functioning of

21 that individual just are absolutely crucial, as well as the

22 management that he receives right at the — soon after the

23 rape, and at the time of the reporting, all of these events

24 become crucial to his post rape adjustment.

25

Certainly, if this person is vulnerable to

Pauline A. Stipes Official Federal Reporter

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1 subsequently be raped, or somehow otherwise pressured, the

2 problem becomes much more protracted. I would think that

3 we should conceptually budget an availability of at least

4 10 sessions for any rape victim of psychotherapy,

5 recognizing that some of those people will not need 10

6 sessions, and I am talking about a session constituting an

7 hour, and I think there will be others who will need

8 significantly more than that, because their sense of their

9 emotional integrity would have been so compromised.

10 Q

.Would prompt proactive treatment by the mental health

11 department significantly reduce the number of hours that

12 would be needed in followup psychotherapy?

13 A

Without question.

14

MR. AMLONG: I have no further questions of Dr.

15 Caddy at this time.

16

THE COURT: All right. Thank you.

17 Cross-examination, please.

18

.CROSS-EXAMINATION

19 BY MR. DAVIS:

20 Q

Dr. Caddy, what is your experience with the prison

21 environment generally?

22 A

The p r i s o n —

23 Q

Environment. Generally? How much experience have

24 you had working within the context of the prison

25 environment? ,

Pauline A. Stipes Official Federal Reporter

588

1 A

I have never been a prison psychologist. My exposure

2 to prisons have always been brief visits to prisons for the

3 purpose of examining people who are in prison.

4 Q

Have you ever made any study of the prison

5 environment.?

6 A

No, I have not.

7 Q

Has your training ever included studies of prison

8 environment?

9 A

Correctional systems, no, it has not.

10 Q

Arp you well versed in the procedures that go on in

11 t"e prison system on a firsthand basis?

12 A

N£, I am not.

13 Q

In the particular case that we have here, are you

14 jamiliar with what the staff training procedures are for

15 correctional officers in the State of Florida, and at

16 Glades Correctional in particular?

17

A

18 Q

M9i 1 a m n o t You do not know what the course of materials and

19 content consists of, do you?

20 A

I was about to say I have no idea. It is not true I

21 have no idea, but I certainly have no specific knowledge of

22 precisely what training experience these people go through.

23 Q

.Do you have any knowledge as to whether it is common

24 practice at Glades Correctional for the correctional

25 officers to make referrals of inmates to the psychology.

Pauline A. Stipes Official Federal Reporter

$89

1 || ^and psychiatric staffs?

2 A

J. do not know whether it is standard practice or not.

3 Q

Okay.

4 A

The material that I've reviewed doesn't give me that

5 as a source of referral.

6 Q

I assume, then, you don't know under what

7 circumstances the staff are trained and what circumstances

8 they characteristically would make referrals to the

9 psychiatric and psychological staff?

10 A

My understanding from the depositions that I've read

11 is that people, inmates, are provided with those services

12 whether they come in, as a review, or if they are defined

13 as having a specific serious mental illness.m They are 14 provided with limited treatment, and, thirdly, if a person

15 is having a here and now problem as they describe it, then

16 that person may come and talk to the medical departments,

17 specifically the psychology service, about their problem.

18 Q

You were not informed. I assume, then, of Dr,.

19 Medina's testimony, and Mr. Lane's testimony that they

20 receive a number of referrals of inmates from the

21 correctional officers?,

22 A

No. I — It would not surprise me. That would be a

23 reasonable source of contact, yes.

24 Q

Okay. And in order to make such referrals, you would

25 assume that the staff, are to that extent, sensitive to the

Pauline A. Stipes Official Federal Reporter

190

jieed of inmates for such services?.

A

,1 would think if they were to make those referrals

they would be an indication of some sensitivity-

Q

You indicated with respect to the procedures for

handling a rape reporting victim that you feel that at

Glades the method is to investigate the criminal aspects of

7 the assault first, and then attend to the medical needs

8 second?

9 A

No, I don't think I said that. I said that although

10 it may have come across that way, what I was trying to

11 .communicate was that we do not seem to have a funnel from

12 either, clearly, if a person reports a rape to one of the

13 guards, it seems that that guard then takes i t — the

14 .correctional officer takes it to his superior, and that in

15 probably the vast number of instances, these people find

16 their way to the medical department.

17

Interestinqly, they don't seem to get to ther

18 psvcholoqist or psychiatrist.

19 Q

von don't know whether they are asked if they want

20 ^ny counseling?

21 A

No. I don't know whether they are asked whether they

22 want to. I simply know that none of them find their way to

23 those services..

24 Q

You know that they are not required to go to those

25 gervices. You don't know if there is simply the option

Pauline A. Stipes Official Federal Reporter

391
i

1 made available to them?

2 A

.I have no idea whether the option is made available.

3 Q

And you indicated that it was your perception that

4 the staff, or at least the investigators act under the

5 presumption that the rape did not occur, in their handling

6 of the rape victim?

7 A

I didn't say that. I side a policy should be to

8 assume that it did, rather than it didn't, and I think

9 there are instances where a claim of rape is treated as if 10 it is a ruse, that is, if it is not a genuine matter, and 11 that presumption, I think in some instances, leads to a

12 series of actions that are not adequately sensitive to the

13 needs of the individual.

14 Q

Now, if that presumption comes after a rather lengthy

15 investigation has taken place, and evidence has accumulated

16 that would indicate that the rape had not occurred, that

17 would certainly be appropriate presumption on the part of

18 the investigator, would it not?

19 A

Yes, but presumably that would occur substantially

20 after the system had also managed the person into care.

21 You see, a part of the evidence ought to be coming from the

22 mental health department.

23 Q

Do you have any idea — First of all, your knowledge

2 4 of the investigative procedures, and the matter in which

25 the investigations take place are based on the actual

Pauline A. Stipes Official Federal Reporter

392

1 investigation reports prepared subsequently by the staff 2 investigator, or by the police investigator, correct?
3 A ,YJLS-

4 Q

The Sheriff's Department?

5 A

Yes.

6 Q

You reviewed those reports in this case, is that

7 correct?

8 A

Yes.

9 Q

And those reports, of course, are, as I am sure you

10 were able to tell by reviewing them, were prepared sometime

11 subsequent to the investigation, after the investigation is

12 complete, or nearly complete. There may be an interim

13 report, or subsequent report, but they are completed after

14 the investigation has taken place?

15 A

Correct.

16 Q

So those reports will contain the opinions of the

17 investigator arrived at on the basis of the investigation

18 that he has undertaken, correct?

19 A

Yes.

20 Q

In those reports, .the investigator will indicate

21 whether he feels, in fact, there was a case of rape or not?

22 A

Yes.

23 Q

Those reports do not reflect what the investigator

24 did, and the manner in which he conducted the

25 investigation, and the interrogation, that's the frame of

Pauline A. Stipes Official Federal Reporter

1 mind in which he conducted the investigation, pr 2 interrogation?

3 A

No, it does not.

4 Q

The only evidence you got of the presumption that the

5 officer has, or anyone involved in the investigation has,

6 as to whether a rape occurred or not comes at the

7 conclusion as it is contained in the report itself.

8

Now, you also indicated that you thought that certain

9 amount of therapy for rape victims was called for, and I

10 think you indicated a minimum of 10 one hour sessions as a

11 standard base line, is that correct?

12 A

Yes, I said I think that would be a reasonable

13 average guideline to run with.

14 Q

When an inmate is in counseling session for any

15 t y p e — When any person comes to seek psychological

16 services, part of — one of the important factors in the

17 delivery of psychological services is the relationship

18 between the psychologist, or psychiatrist, or other mental

19 health care specialist, and the patient, correct?

20 A

Right.

21 Q

And it is important in delivering those services if

22 at all possible to maintain a continuity in the person and

23 the therapist or mental health specialist, correct?

24 A 25 Q

Right. Now, I assume you also are aware the majority of the

Pauline A. Stipes Official Federal Reporter

394

1 inmates who report sexual assaults are subsequently

2 transferred out of GCI, an and in some instances within a

3 matter of a few days, and some instances in a matter of a

4 couple weeks?

5 A

Right.

6 Q

In those circumstances, it would not be feasible,

7 would it, to provide long term mental health counseling to

8 those inmates who would happen to be in the midst of the

9 counseling be broken off and sent to another institution?

10 A

I don't agree with that presumption at all. The

11 evaluation of the patient will occur at the site where the

12 rape took place. That evaluation— I would consider any

13 investigative report that did not include a psychological

14 examination of an alleged rape victim to be incompetent

15 investigative report.

16 Q

You are not a police officer?

17 A

No.

18 Q

You are not suggesting that the opinion you are

19 giving is —

20 A

I —

21

MR. AMLONG: Your Honor, Mr. Davis is arguing.

22

THE COURT: Let him finish before you go onto

23 the next question.

24

THE WITNESS: What I am saying is, the

25 investigation doesn't in any instance at GCI ever include

Pauline A. Stipes Official Federal Reporter

195

1 mental status examination of the patient. It may include a

2 medical examination which may show absolutely nothing, and

3 then it starts to deal with the victim or alleged victim

4 versus the word of the alleged perpetrator. We get right

5 back into that game again. We are not looking at the

6 mental state of the person which will give us tremendous

7 insight into the likely events.

8

Now, a part of that examination of that person will

9 be an evaluation that determines what his needs are. If

10 one of his needs is to move him rapidly out of that

11 facility, then the mental health unit ought to be making

12 that as part of its recommendation at the time of the

13 evaluation. They don't even get into it.

14

Now, let me finish, then, if there is a treatment

15 need after the removal, you do that so efficiently, and

16 quickly, you get that person out of that facility, you

17 refer him to another facility. By the time he hits the

18 other facility, the other facility should have been

19 notified that this person is in need of urgent

20 intervention, may not be urgent, but he needs to be picked

21 up by the psychologist at that site, and that psychologist

22 proceeds to start to render the care, you don't start

23 something that you can't stop. You do it a lot better than

24 that.

25 BY MR. DAVIS:

Pauline A. Stipes Official Federal Reporter

596

1 Q

Not a single of those inmaTes was transferred was

2 transferred except that he insistently demanded that he be

3 transferred, correct?

4 A

I don't know that. I don't know the underlying

5 reasons for the transfer. I presume that is the case.

6 Q

When an inmate is insistently demanding to be

7 transferred, you will not suggest that he be held in that

8 place longer than he wish to be there remaining, right?

9 A

I think it depends why he is interested in being

10 transferred. I am not trying to set board policy for the

11 Department of Corrections for what criteria they ought to

12 use. Just because somebody wants to be transferred I don't

13 think is a good reason to transfer them. If a

14 recommendation from the mental health department is a real

15 concern about the mental adjustment— One of the things

16 that is fascinating, what we tend to do, we tend to remove

17 the victim. We don't manage the perpetrator, the

18 perpetrator stays there in some circumstances.

19 Q

How do you know that?

20 A

I believe that to be the case.

21 Q

You believe that on the basis of what?

22 A

Things that I've heard from victims over the course

23 of some 20 or 25 interviews over the last few years.

24

What I am suggesting is, I think it is more likely

25 that the victim will be moved than the perpetrator.

Pauline A. Stipes Official Federal Reporter

J97

1 [I Q

Hoy-majiy alleged victims have you interviewed wHo

2 have alleged assaults since January 1st, 1986?

3 A

Since then, about five.

4 Q

Mr. Adams, Mr. Robertson, Mr. Savino^ Mr. O'Neil, and

5 Mr. Dennis?

6 A

I believe that is the list, yes.

7 Q

And, I believe in your interview of Mr. Robertson,

8 you had him listed as Mr. Robinson?

9 A

Yes.

10 Q

Your interview was by telephone?

11 A

Telephonic, yes.

12 Q

15. 20 minutes, maybe 30 minutes in one instance?

13 A

Yes.

14 Q

You surely don't mean to suggest that was an adequate

15 basis for any type diagnosis?

16 A

No, it certainly is not.

17 Q

And did your notes reveal whether any of those

18 individuals indicated that his attacker or alleged attacker

19 was still at the institution?

20 A

Most of these notes did not get into the specific:

21 details of that.

22 Q

So you really don't know what the present, since

23 1986, procedures are at GCI on that p o i n t —

24 A

What I have focused on is the larger issue.

25

MR. DAVIS: I think I am entitled to finish.

Pauline A. Stipes Official Federal Reporter

398

THE COURT: Yes, let him finish, and then give

2 the witness time to complete his answer before you go to

3 the next question. It is hard to understand when both of

4 you are talking.

5 BY MR. DAVIS:

6Q

I said certainly in respect to the conditions at GCIt

7 with transfer of the alleged assailant inmates since 1986,

8 you are not aware of what that is, is that correc^?

9A

That is correct, though I have been advised by one

10 inmate that he was being transferred in the same van that

11 his assailant was being transferred in.

12 Q

So that both were being transferred on that occasion?

13 A

Apparently.

14 Q

Now, jn respect to rape crisis centers, are you

15 familiar with the prevalence of such centers in prisons

16 generally in the United States?

17 A

I do not believe that there are specifically rape

18 crisis centers in prisons throughout the United States at

19 all. I believe there are individual psychologists or

20 psychiatrists, or mental health workers who do intervene in

21 various prisons and provide assistance to individuals

22 because I have spoken with prior inmates who reported the

23 pleasure of the benefit that they derived from seeing such

24 individuals, but prisons do not have rape crisis centers

25 integral to them in the way that, say, community mental

Pauline A. Stipes Official Federal Reporter

1 health centers or community health centers often do.

2 Q

As a matter of fact, most communities don't have.

3 community health centers, is that correct?

4 A

Well, yes, that is true.

5 Q

In respect to the inmates you have spoken with who

6 indicated the pleasure of the occasion of interviews with

7 mental health specialists, were they talking about

8 interviews occurring immediately after sexual assaults?

9 A

No, no. They were talking about therapy that they

10 benefitted from as a result of being involved in

11 programming with mental health experts.

12 Q

So you don't have any knowledge as to how mental

13 health rarp Rgrvirss are delivered in any prison system to

14 inmates who have alleged that they were sexually assaulted,

15 -delivered contemporaneously or shortly thereafter to the

16 report of the rape?

17 A

No. I am not an expert in the delivery of the

18 services broadly in the systemt

19 Q

And that would pertain to any prison system, not

20 merely Florida Prison System?

21 A

Correct.

22 Q

Now, you indicated that you noted a phenomenon of

23 increase in rape reporting over the last 20 years in

24 society in general?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

~Q

It has become a matter of popular conversation and

discussion, people are willing to talk about that, such as

on Geraldo Rivera?

A

I think it is more open, and largely more open

because the victim is less likely to be victimized by the

system, as well as the assailant. There is a greater sense

of the victim not being the perpetrator of her own rape.

Q

And also because it has become acknowledged within

society that this is a matter that is okay to discuss?

10 A

Correct.

11 Q

There is no social stigma, or little social stigma

12 t^hat is going to be attached to the individual who is

13 willing to come on television, and discuss it nationwide?

14

Let me say little social stigma, because, obviously,

15 there are people who would still regard that situation?

16 A

TJiere are many people who still do not report rape.

17 And they do not do so out of a sense of not wishing to see

18 themselves feel publicly degraded, but it is certainly the

19 case that we are moving much more to an open communication

20 about rape in our society, generally, yes.

21 Q

And in some cases the willingness to discuss it bears

22 relationship in the form of exhibitionism, does it not?

23 A

Well, I wouldn't want to suggest that it never would

24 function that way, but I think it is extremely rare that a

25 person presents themselves as a victim of rape in order to

Pauline A. Stipes Official Federal Reporter

101

1 II exhibit themseTVes^. T h a t — I would not tfiink that that

2 would occur in anything other than a very pathological

3 individual.

4 Q

You are aware, of course, the large numbers who make

5 themselves available to the mass media?

6 A

I am aware that these Geraldos, and the like, succeed

7 in getting victims of rape to be victims of their talk

8 shows, but I don't know that those numbers are all that

9 large, if you consider 230 million population.

10 Q

Now, how many — you have indicated you had occasion

11 to treat rape victims, is that correct?

12 A

Yes.

13 Q

Were those all female rape victims, or male rape

14 victims included?

15 A

Every person I have ever treated who was raped was

16 female.

17 Q .So you never had occasion to treat a male rape victim

18 yourself?

19 A

No. I have never treated a male rape.

20 Q

On how many occasions —

21 A

Let me say, I have treated males who were as children

22 were sodomized by their father.

23 Q

Sexually abused?

24 A

Sexually abused by their father.

25 Q

Who are reporting the incidence as adults?

Pauline A. Stipes Official Federal Reporter

102

~A

Many years later, yes.

2Q

That involves a somewhat different behavioral

3 pattern, does it not?

4

Yes, the intimacy link there creates differences,

5 yes.

6Q

And of the female rape victims that you treated, how

7 many did you treat contemporaneously, or roughly

8 contemporaneously with the report?

9A

I would estimate in my professional experience, l^

10 probably treated a total of somewhere around 20 to 25

11 people over the last 15 years where the primary issue was

12 rape, and all of those, 75 percent, were treated as a

13 referral from rape crisis centers, or similar facilities.

14 Most of them have been contemporaneous^with soon after the

15 assault.

16 Q

Now, you indicated that in respect to the inmate

17 situation that you had occasion to review in reference to

18 post 1985 conditions, that the symptoms which were related

19 to you were consistent with those of a rape victim, is that

20 correct?

21 A

Yes.

22 Q

They are also consistent with a number of other

23 possible psychopathologies, are they not?

24 A

Some of them are, but what is not consistent with

25 others is the report of the penetrative behavior, and the

Pauline A. Stipes Official Federal Reporter

*03

1 sense of — there is essentially no other psychopathology

2 that brings with it that experience of sexual degradation

3 because none other involve sexually degrading act.

4 Q

The ones who you have had any conversation with in

5 order to obtain any information along that line are the

6 five that you discussed previously, is that correct?

7 A

Correct, yes.

8 Q

Which included Mr. Savino?

9 A

Yes.

10 Q

And did you know anything about the background of the

11 alleged incident with Mr. Savino?

12 A

Let me go to my file. Would you clarify your

13 question, please?

14

In the context of my review of this material, I

15 wasn't sure about the background information you asked.

16 Q

You are aware, I assume Mr. Savino reported himself

17 on a particular date of having been the victim of a sexual

18 assault in the horticulture building, is that correct?

19 A

Let me check. My notes don't reveal where it

20 happened, though, I believe I did discuss that with him on

21 the telephone, but I have not reported it, and enough time

22 has gone by so I don't remember where the incident

23 occurred, but he indicated that all he wanted to do was to

24 get out of there, wherever there was. Apparently, he was

25 in a position where he could vacate this location.

Pauline A. Stipes Official Federal Reporter

1 Q

Did you have the investigative report that you

2 reviewed?

3 A

Yes, I have seen an April 22nd report by Inspector

4 Williams. That document says it was in the horticultural

5 plant house.

6 Q

In the horticultural building?

7 A

Yes.

8 Q

And you also noted, did you not, that Mr. Savino

9 indicated that he did not know the identity of his

10 assailant, is that correct?

11 A

I'm sorry. I don't have an independent recollection

12 now of enough details of that phone call to know the answer

13 to that. I do know that he indicated to me that he knew at

14 least one of the men who was involved, because my note

15 suggested that he said the first dude was holding a knife

16 and threatening him for several days before.

17 Q

And he appeared to give, I assume from what you are

18 telling me, he appeared to give you what sounded like a

19 fairly reasonable account of a sexual assault, did he not?

20 A

Yes.

21 Q

Thank you.

22 A

He also described features of a man who he said was

23 black, 5 foot 10, weighed about his weight; so my sense of

24 it is that it is — reading between the lines of my notes,

25 he did know both of these people, or were in a position to

Pauline A. Stipes Official Federal Reporter

identify both of these people, at least as he said it to

2 me, if he were to choose to do that.

3Q

Now, you indicated that staff, by reviewing the

4 Minnesota Multiphasic Personality Index, I believe it is,

5 ( and by comparing the scores on three of the scales with
6 previous aggressive history, one can arrive at a reasonable

7 prediction of future aggressive history, is that correct?

8A

Yes.

9Q

Are you familiar with the profile of prisoners in

10 JState Prison System in respect to their past aggressive

11 histories?

12 A

I've never seen any specific study showing the

13 percentage of prisoners who have been involved in

14 previously violent behavior. I have interviewed,

15 literally, probably several thousand people who have been

16 in prison, and I have a sense of experience of some of

17 those people being historically violent, and others not

18 violent whatsoever.

19 Q

Do you have the predicate for your determination as

20 to what their past history of violence was from their

21 history to you, or from external sources?

22 A

No. I am suggesting in that MMPI screening that one

23 of the data points should be their previous history of

24 documented violence within a prison system.

25

Now, obviously, if somebody is just coming into the

Pauline A. Stipes Official Federal Reporter

106 1 II system for the first time, then part of that could be 2 documented by looking at the person's criminal record, or

3 looking at the nature of the charge with which he was — of

4 which he was found guilty; but if there was a significant

5 history of violence in this individual, with the indicators

6 indicated that I am suggesting, then that would be the best

7 available predictor of that person's potential, subsequent

8 violent behavior while in prison.

9 Q

Are you aware of studies done on the behavioral

10 patterns of prisoners in institutional settings, such as

11 prisons, as contrasted with the behavior patterns of those

12 individuals outside of custodial situations?

13 A

No, I am not. I am not aware of any such research.

14 I am aware of the research looking at the effects of

15 certain parameters on increasing violent behavior, and some

16 of that work has been done in prisons, but not specifically

17 the question that you asked.

18 Q

All right. Are you aware of any influences that the

19 environment may have on the conduct, or the — an

20 environment would have on the predictability of conduct.

21 based on your analysis of the MMPI scales, and the past

22 history?

23 A

Oh, yes, I am not suggesting that the indicators that

24 J. am proposing represent a one-to-one correlation, but

25 rather that if you take a large sample of people, say a

Pauline A. Stipes Official Federal Reporter

#07 1 thousand prisoners, and you use the profile that I am 2 recommending, the statistics will be in my favor; that is,

3 the odds will be very much in my favor, and yet in an

4 individual case, in a single case, whether that person

5 demonstrates subsequent violent behavior, maybe not so much

6 related to — it may be more related to a certain

7 Rrovocativeness that he experiences under certain

8 circumstances, so, conditions of who that person is — the

9 fact, if you like of who that person is put in the cell

10 with, his immediate surroundings, all are influential.

11

I am suggesting that all other things being equal,

12 people with a propensity to violence, they will exhibit

13 violence in almost any of these situations, and whether

14 they are violent more rapidly within the first few days of

15 being in a facility, or if it takes three months, may be

16 more productive of the circumstances, rather than the

17 inevitability of that violence.

18 Q

Are you aware of any studies that have been done,

19 sociological studies done upon the nature of those who

20 commit violence in prisons?

21 A

No.

22 Q

The background, the sociological background of those

23 individuals?

24 A

No. I mean, there are good studies looking at the

25 prediction of dangerousness, and violent behavior, but the

Pauline A. Stipes Official Federal Reporter

#08

1 sociological studies that I think you are referring to

2 really simply state ultimately what good common sense would

3 dictate, and the quality of that research is not terribly

4 impressive.

5

I certainly have not seen any particularly good

6 research, looking from a sociological point of view that

7 predicts dangerousness.

8 Q

What research have you seen? You say you have seen

9 some particularly good. What have you seen?

10 A

I can't quote the investigators. This is sort of

11 stuff you review it at one point, and then pass it on.

12

But the sort of work I am talking about are the

13 sociological studies that look at the family dynamics,

14 history of alcohol involved in the family, the age of first

15 consumption of alcohol, the age of first consumption of

16 drugs, the prediction.

17

What these studies really do is give us further

18 confirmation that underlying a very disturbed behaviorally

19 disturbed person is a history of real dysfunction in the

20 family, and the prediction of dangerousness, for example,

21 is not a direct product of dysfunction in the family. That

22 requires other intervening sort of events, but, typically,

23 those people who will be violent have come from very

24 dysfunctional family systems, and their violence did not

25 wait until their 20th birthday before it emerged.

Pauline A. Stipes Official Federal Reporter

#109

1

We see increased risk rates of hyperactivity in

2 children who will as adults become violent. Those children

3 also, historically, have had alcohol, and drug involvements

4 much earlier than cohorts that would not become violent.

5 Those things tend to predict criminality, rather than

6 specific violence, and some of those people will be

7 criminal, and sub-set of those will be violent.

8 Q

Now, were any of the inmates that you spoke with, the

9 .five inmates that you spoke with, to your knowledge, 10 j . n v 0 ^ v e ^ in psychological, or psychiatric counseling at

11 Glades Correctional institution?

12 A

No. I am not — I will have to double check, I do

13 not recall. Well, Mr. Savino, said that he did not see a

14 psychologist. He said they basically locked me up, and saw

15 what happened.

16 Q

I am referring to any psychological counseling while

17 at Glades, did any of them indicate that they had been

18 involved in psychological or psychiatric counseling?

19 A

Not that I can recall, and I certainly asked that

20 question.

21

THE COURT: Who else did you see besides

22 Savino, and Dennis, not see, or talked to on the phone?

23

THE WITNESS: Derrick Adams, I saw Shelly

24 Robinson, and I think it is Robertson. I have him written

25 down as Robinson. I saw — I already said Savino.

Pauline A. Stipes Official Federal Reporter

no

1

THE COURT: This is Arnold Dwane Dennis, Is

2 that the Dennis?

3

THE WITNESS: And I saw, next person was

4 O'Neil, and the next person was Arnold Dennis, the next

5 person was Martin Sanders, or Saunders.

6 BY MR. DAVIS:

7 Q

Mr. Saunders is not involved in GCI at this time?

8 A

No. I understand he is not. But I had spoken to him

9 during that time period.

10 Q

None of those indicated to you whether they ever

11 sought or obtained psychological, or psychiatric counseling

12 while at Glades Institution for any purpose?

13 A

My understanding is, it is very likely they did not.

14 That was not communicated to me by them.

15 Q

That was not communicated to you?

16 A

Right.

17 Q

Okay. Let me ask you to look at .Defendant's Ex. 4,,

18 and tell me if you have ever seen the items contained

19 therein?

20 A

Let me check and see if I have got any of this in my

21 file. I don't believe I have seen this. I don't believe I

22 have seen this material.

23 Q

These were not the items that you had at your

24 deposition on December 8, 1989?

25 A

I think I have some of them. I don't remember the

Pauline A. Stipes Official Federal Reporter

HI

first one. There again — Derrick Adams looks familiar.

2Q

Let me ask you if your notes reflect what you are

3 reviewing are the investigative reports, are they not?

4A

Yes, they are.

5Q

How many of those investigative reports did you have

6 available to you from counsel for your review in preparing

7 your opinion?

8A

I had the investigative report available on Adams,

9 and on Robertson, and on Savino, and O'Neil. I had some

10 information.

11 Q

You had an incident report on O'Neil?

12 A

Yes, an incident report, and I don't believe I had, I

13 may have had, I don't believe I had Arnold Dennis'

14 information. If I did, I don't have any independent

15 recollection of it, and I don't have my file here.

16 Q

Do you recall whether you had the investigative

17 reports on the other inmates that had made allegations of

18 sexual assault since 1986, other than the ones that were

19 specifically discussed in your deposition because those are

20 the ones that you additionally interviewed by telephone?

21 A

There was material that was given to me by the

22 plaintiffs' attorneys, but I don't believe I — I don't

23 have an independent recollection of what it was, and I did

24 not review it unless it dealt specifically with these

25 people that I was interviewing.

Pauline A. Stipes Official Federal Reporter

412

~Q

All right. jjo the only material that you reviewed in

2 order to prepare your opinion was the telephone interviews

3 you had of those five inmates, the documentary items

4 received from GCI, primarily in the form of investigative

5 reports/ or in one instance the investigative report, and

6 attachments there to, and you also had interview sheets?,

7A

Yes, and I also had the opportunity to review the

8 Repositions of several of the medical staff, medical unit

9 staff of GCI.

10 Q

All right. You did not, then, review, any of the GCI

11 documentary material which referred to any inmates other

12 than the inmates that you interviewed by telephone?

13 A

No, that is correct, I did not.

14 Q

Okay.

15

THE COURT: How much longer will you need for

16 cross-examination?

17

MR. DAVIS: Just a few more minutes, Your

18 Honor.

19

THE COURT: All right.

20

MR. DAVIS: I am at a point of reviewing to see

21 if there is any I missed.

22

THE COURT: Okay.

23

MR. DAVIS: I have no further questions.

24

THE COURT: Let's take the morning recess, we

25 will be in recess 10 minutes. You are excused.

Pauline A. Stipes Official Federal Reporter

113

1

(Thereupon,a shortrecess was taken.)

2

REDIRECT EXAMINATION

BY MR. AMLONG:

4Q

Dr. Caddy, on the subject of staff referrals to the

5 mental health department, considering your interviews with

6 these five inmates, the interviews that you did in the

7 underlying case in 1985, and your review of the depositions

8 of Dr. Medina and Mr. Lane, have you found any evidence

9 that there has ever been any inmate referred to the mental

10 health department for the aftermath of a rape?

11 A

As best I can determine, there has never been a

12 referral made, as a result of a rape, to the mental health

13 division.

14 Q

You acknowledged in discussing the investigations

15 that you were not a police officer, however, are you

16 employed by any law enforcement agency, periodically?

17 A

Yes, I am.

18 Q

And which law enforcement agency is that?

19 A

Well, there are several. The principal one has been

20 the Broward Sheriff's Office, and some of the local cities

21 in Broward County. And my work there has been either to be

22 a party to a screening of police candidates or corrections

23 candidates or alternatively for employment, or

24 alternatively I have been called in at various points where 25 there has been internal affairs investigation of police

Pauline A. Stipes Official Federal Reporter

114

T and there are questions about their emotional stability and
2 the like.

3Q

Are you also periodically employed by the Broward

4 County State Attorney's Office?

5A

Yes.

6Q

Is there any special unit that employs you?

7A

Principally the Sex Crimes Unit.

8Q

And that is to assist in prosecutions?

9A

Making determination on appropriateness of the likely

10 success of a prosecution, yes.

11 Q

Doctor, you may want to review your notes of the

12 interviews on this, but the telephone interview that you

13 had with Mr. Savino, now, all of these inmates telephoned

14 you during a prearranged window of time that they were able

15 to get the phone?

16 A

Correct.

17

MR. DAVIS: Objection, leading.

18

THE COURT: What is that?

19

MR. DAVIS: That is a leading question.

20

THE COURT: The objection to that — that

21 objection is overruled.

22 BY MR. AMLONG:

23 Q

Do your notes reflect whether or not Mr. Savino's

24 telephone interview was truncated?

25 A

The notes specifically don't indicate that it was

Pauline A. Stipes Official Federal Reporter

115

1 II truncated. It was forced to be reasonably brief, and as I

2 recall, there were problems of where he was calling from in

3 terms of what he felt comfortable talking about.

4 Q

Now, did you, during the telephone interview, did you

5 form any general impression about the stability and

6 communicative skills of Mr. Robinson?

7 A

Let me clarify with Savino, part of the problem was

8 that he was in a circumstances where he said he really

9 couldn't talk about what he wanted to talk about.

10

Mr. Robinson, as I recall, was one of my early notes

11 was this man was very limited intellectually. It was clear

12 over the telephone that he had very limited education, and

13 seemed to have very limited basic intellectual ability.

14 Q

Did he appear to be functioning normally when you

15 talked to him?

16 A

Well, functioning normally within the limits of his

17 intellect, and also that he seemed moderately depressed

18 over the telephone, and seemed to be having — he was

19 certainly one of the most distressed. He was one of the

20 more distressed of the people I interviewed.

21 Q

Did any commoii_fcheme run through the interviews with

22 ^hese inmates concerning the kind of treatment they

23 jperceived they received when they reported they had been

24 raped?

25 A

Yes. The general sense that I got is that that the

Pauline A. Stipes Official Federal Reporter

#16 matter wasn't taken with a seriousness that the —

2 £hat the victims would have wished, and that in some

3 instances, they were basically believed—they believed that

4 they were not taken seriously, and either they should have

5 done something to solve their own problem, and be a real

6 man, quote, unquote, or that they should have or they

7 couldn't expect to be treated sensitively.

8

For example, in the case of Robinson, he claimed

9 although a guard put him in protective custody, or

10 protective confinement, he also said this guard slapped him

11 when he did so, and basically suggested that he believed he

12 was lying, even though he put him in protective custody.

13 Q

Did you ask them whether they felt the guards

14 believed them?

15 A

I asked them — no, I didn't specifically ask them

16 that question. I asked them, did they believe that they

17 were treated sensitively.

18 Q

And what was the response from all of them?

19 A

No.

20

MR. DAVIS: Objection, hearsay.

21

THE COURT: The response from all of them, did

22 you say?

23

MR. AMLONG: Yes.

24

THE COURT: Well, now, just a minute, let me

25 rule on that.

Pauline A. Stipes Official Federal Reporter

1

What is the purpose of asking this question? Is it

2 for the truth?

3

MR. AMLONG: No, your Honor, it is not. It is

4 simply for the foundation for Dr. Caddy's opinion.

5

THE COURT: I will overrule the objection, and

6 allow it to be utilized for that purpose only, not for the

7 truth of the response, but simply as a basis for whatever

8 opinions this expert witness may have.

9

MR. AMLONG: Your Honor, I have no further

10 questions at this time.

11

THE COURT: Okay. Thank you, Dr. Caddy.

12

(Thereupon, the witness was excused.)

13

MR. AMLONG: Your Honor, I believe at this

14 point we have all of the evidence in except the tape.

15

MR. LIPMAN: And we offered the videotape into

16 evidence, and counsel wanted the opportunity to review it.

17

MR. DAVIS: By the end of the proceedings—

18 Well, I don't know any reason why we have an objection. I

19 happen to be one person that doesn't own a videotape

20 machine, and it is difficult for me to get a videotape with

21 the trial going on.

22

THE COURT: You haven't done that?

23

MR. DAVIS: I haven't been able to do that.

24

MR. LIPMAN: As long as we could do it at a

25 later time.

Pauline A. Stipes Official Federal Reporter

~~I

THE COURT: Let's allow it in evidence at this

2 time. If you do get a chance to review it, please, Mr.

3 Davis, and you find there is something in there that you

4 deem objectionable, if you let us know right away, I think 5 it is probably before we may have had a chance to rule on

6 this thing anyway, we could act on this, and make a ruling

7 on 3,t so it would be in the record for you.

8

I think probably you agree there is some only small

9 likelihood that there would be an objection anyway. If

10 there is, it could be an important one, we have to

11 recognize that.

12

Let's let the record note with that qualification,

13 the plaintiffs rest.

14

MR. LIPMAN: Given that qualification, Your

15 Honor, the plaintiffs rest.

16

THE COURT: All right. Are you ready to go,

17 Mr. Davis?

18

MR. DAVIS: We are, Your Honor. We have a

19 witness ready to put on.

20

THE COURT: All right. Let's put him on.

21

^RANK C. NAPPI. JR.. DEFENSE WITNESS SWORN

22

THE COURT: Please be seated. State your name,

23

THE WITNESS: Frank C. Nappi, Jr..

24

THE COURT: Spell your last name.

25

THE WITNESS: N a p p i.

Pauline A. Stipes Official Federal Reporter

#19

1

THE COURT: All right. You may proceed.

2

DIRECT EXAMINATION

3 BY MR. DAVIS:

4 Q

Mr. Nappi, would you tell us what your occupation is?

5 A

I am a C02 at Glades Correctional.

6 Q

What is CO2?

7 A

That is a sergeant_.

8 Q

How long have you been a correctional officer in the

9 Florida State Prison System?

10 A

This May, 17 years.

11 Q

And where have you been a correctional offi,cgr during

12 those 17 years?

13 A

Glades Correction.

14 Q

You have been there the entire 17 years?

15 A

Yes.

16 Q

And what is the job that you have had at Glades over

17 those 17 years?

18 A

Well, I started off as a correctional officer,

19 working the dorms, and when I made sergeant, they call it

20 police sergeant, walking around the compound, and me and

21 another sergeant. I have been orientation sergeant, plus

22 police sergeant, and I work on the PR team, disciplinary

23 report team.

24 Q

Now, when did you make sergeant?

25 A

I would say, I don't recall, it is about 7 years ago.

Pauline A. Stipes Official Federal Reporter

120

1 II Q

Sometime in the early '80's?

2 A

Right.

3 Q

So, from that point on, you were one of the police

4 sergeants?

5 A

Yes.

6 Q

And you indicated there was another sergeant who was

7 also a police sergeant with you, who was that?

8 A

Sergeant Bradley worked with me, and now I have

9 Sergeant McCullough, and I have had a couple sergeants

10 inbetween that have worked.

11 Q

And what is the duty of the police sergeants on the

12 compound?

13 A

Sergeant Bradley A, B, and C, and I have A, D, We

14 search areas, search inmates, and walk around the compound,

15 and make sure everything is running right, and that is what

16 we normally do for eight hours.

17 Q

^n addition to searching dormitories, you search

18 other areas?

19 A

Yes, dorms, day areas, kitchen, wherever we thought

20 something was wrong, we look and search around that area.

21 Q

Is the search function one of the primary functions

22 for the police sergeants on the compound?

23 A

Yes.

24 Q

And what is it that you are searching for?

25 A

Mostly weapons, marijuana, drugs. Whatever we could

Pauline A. Stipes Official Federal Reporter

#21

2 Q

All right. Within the general category of

3 contraband, you are looking for any of those items that are

4 prescribed?

5 A

Yes.

6 Q

And, could you tell us, if you will , and let the

7 judge have some idea of your experience as a police

8 sergeant first in respect to the introduction of drugs, and

9 then in respect to the con — drugs and weapons, and then

10 in respect to concealment of drugs and weapons, including

11 in drugs, of course, buck, the experience that you have had

12 over the years in that?

13

MR. LIPMAN: Your Honor, are we speaking of

14 post January 1986 events, because based upon the Court's

15 initial ruling, when we started the proceedings on Monday,

16 I believe that the witness' experiences relating to the

17 temporal period prior to January '86 would be irrelevant to

18 these proceedings.

19

MR. DAVIS: We can bring it from 1986.

20

THE COURT: All right. Please amend your

21 question in such a way as to meet the objection.

22 BY MR. DAVIS:

23 Q

Tell the judge about the types of situations that you

24 have found in this time frame relating to the introduction

25 pi contraband by the prisoners into GCI?

Pauline A. Stipes Official Federal Reporter

122

1 II A

Well, since I have been there, since I have been

2 working there, we found quite a few weapons, homemade

3 weapons that inmates make.

4

Like I said, a lot of them are made, where they have

24 hours to think where to put them, how to hide them, and

6 whatever they want to do with them. tWe go in, and trying 7 t^o look for these things, there are so many places to put

8 them, it is almost impossible to find them all. We do look

9 for weapons, and drugs when we can. Bringing them into the

10 compound is almost impossible to stop, because they leave

11 them outside. The inmates go to the job areas, and there

12 the stuff is waitinq for them. They put them in a truck,

13 in the air filter in the truck, any place else that is

14 almost impossible to find unless you know exactly where it

15 is.

16 Q

Let's take and view a little more intensely the whole

17 question of introduction into the compound of contraband?

18 A

If you h a v e —

19 Q

what are the most common methods, or the general ways

20 in which contraband is brought into the compound in your

21 experience?

22 A

We have had visitors bring a lot of contraband in, a

23 lot of the visitors, we can pat them down, but we can't

24 jytrip them. Naturally, they can bring anything they wartt

25 in. What they do, put it in the visiting park, burv it.

Pauline A. Stipes Official Federal Reporter

#23 1 put it in the garbage can, whatever. We search the inmates

2 when they come through the visiting parks, the other wc^,

3 bringing them in tractors, you have 40 people coming in 4 from a job. It is impossible to strip search 40 people. 5 We try to strip search a squad one day, and another squad

6 another day.

7 Q

What, besides the work squads, and the visitors, are

8 there other methods of getting the contraband into the

9 compound?

10 A

Well, they can throw them over the fence. J have had

11 macheties thrown over on the rec field fence. And there is

12 a lot of ways. I am trying to think of them.

13 Q

Now, in respect to the introduction of contraband

14 through the vehicles, for instance, are there vehicles that

15 as a normal course go in and out of the compound?

16 A

Yes, we had the maintenance squad that brings in

17 plumbing, electric squad comes in and out, the dumb truck

18 which picks up the garbage comes in and out, we have quite

19 a few vehicles that come in and out, that work outside.

20 where inmates out there, put anything they want in trucks,

21 gnd there is no way they are going to be taking air filters

22 pff not every time they come through.

23 Q

Now, just to get a flavor of it, what different;

24 m e t h o d s and p l a c e s of concealment in a v e h i c l e have yo.u

2 5 encountered contraband?

Pauline A. Stipes Official Federal Reporter

124

1 A

Well, the best one I have seen is the air filter,

2 they take the air filter out, and put marijuana, and

3 whatever JJI, and then they take the paneling of the door,

4 where they have the time, unscrew the paneling, and put the

5 stuff in there, and the screws back in. When the truck

6 comes through, naturally, you don't know that panel has

7 been taken off. That is another way they do it.

8 Q

Are there DOT trucks, Department of Transporation

9 trucks?

10 A

DOT trucks, they don't come on the compound.

11 Q

Are there other places that you found drugs in other

12 forms of contraband in the vehicles?

13 A

Well, that is about what I — the most common place

14 you are going to find them is behind the seats, under the

15 floor boards, wherever there is a place on that truck, that

16 is not where you could see looking at it.

17 Q

Okay, now, the crews that are out, these work crews,

18 what functions are they serving outside the compound?

19 A

We have farm squads, maintenance crews, warehouses.

20 We have five warehouses, they are normally working all over

21 outside.

22 Q

Are there vehicles that are not prison vehicles that

23 come into the compound, also?

24 A

We have personal vehicles that come in. yes.

25 Q

Are there service vehicles from private companies

Pauline A. Stipes Official Federal Reporter

1125

1 that come in to provide service?

2 A

yes, we have people that mostly come from the kitchen

3 bringing food, and stuff into the back of the kitchen, they

4 deliver the supplies.

5 Q

A produce delivery?

6 A

Right, send in the truck with all the food, and

7 stuff.

8 Q

All right. ULjrespect to visitors bringing it in,

9 could you give the judge some flavor of the techniques and

10 the situations that you've encountered in which visitors

11 have brought contraband into the compound?

12 A

Well, a lot of visitors, like the women, especially,

13 they put it in their bras, and everywhere. Naturally, you

14 will not see it when they walk through. If we have

15 somebody that we suspect that is bringing it in, we ask if

16 ^hey would be search.

17 Q

Search? A specific type?

18 A

Yes, bring them in the back room, and tell them to

19 take off the clothes, with a woman officer. They do not

20 have to do that. All they have to say is they do not want

21 t;o be searched, and they leave.T What we do is take them 22 pff the visiting list if they do not want to be searched.

23 Q

What search techniques are used with the visitors .

24 generally?

25 A

Generally, looking in the pocket books, the men are

Pauline A. Stipes Official Federal Reporter

#26

1 patted down, and that is normally about all we can do.

2 Q

Is there any device that the guests have to walk

3 through?

4 A

We have a device for metal detector when they walk

5 through, if it goes off, they have to empty their pockets,.

6 Exactly like we have downstairs.

7 Q

Are there hand held metal detectors used?

8 A

Right. We do that, too. When they come in, we use a

9 hand detector on the visitor.

10 Q

And on what occasions do you request that visitors

11 §>ubmit to strip searches?

12 A

Well, if we have an idea we have somebody that seems

13 to be getting drugs in. or informants telling us that this

14 person in the family is bringing drugs, that is when we

15 tell somebody we want to strip them, and search them.

16 Q

And .have you ever encountered situations where

17 visitors attempted to bring in substantial amounts of

18 objects that were contraband?

19 A

Yes, we had people come in. real thin, the next time.

20 they are heavy, and they have foodf sandwiches, and that we

21 notice, and they have had food, and every item they are not

22 supposed to have.

23 Q

Have you ever during this period encounter visitors

24 that have hidden pockets in their rini-hing?

25 A

I haven't, because I don't work there, but they have

Pauline A. Stipes Official Federal Reporter

127

got themT I know that.

2Q

Okay. In respect to the introduction of contraband

3 through the visitor park, what, besides the search of the

4 visitors coming into the park, what techniques or tactics

5 are used in order to try to prevent that as a source of

6 contraband into the prison compound?

7A

Well, like I said, the visitors bring it in, we strip

8 search every inmate that comes out of the visiting park

9 after they visit.

10

Now, like I said, what they will do is bury it out

11 there. You have over 100, 200 visitors. You can't see

12 Everything that is going on. They will bury it, when you

13 are not looking, and throw it over the fence.

14 Q

How large is the visitor park?

15 A

Street-wise, from that wall to that wall.

16 Q

How wide?

17 A

Width, I am not good at measuring. I would say from

18 that wall to the wall over there. Not really big. It is

19 crowded with visitors there, with children running around,

20 and everything else.

21 Q

Are there correctional officers on duty?

22 A

Yes, we have correctional officers walking the

23 visiting park back and forth, all over, and officers

24 gtationed outside the visiting parks, when they do throw

25 it, we go right after it.

Pauline A. Stipes Official Federal Reporter

428

1 Q H a v e there been situations encountered where visitors

2 have refused searches?

3A

Yes, like I said, when they refuse to be searched, we

4 tell them they cannot come in, and take them off the list.

5Q

Are there situations where visitors would not let you

6 search, and then come back and agreed to be searched?

7A

We won't let that happen.

8Q

Why not?

9A

What they do is go to the car, and put away whatever

10 they had.

11 Q

In addition to the — You indicated that there is a

12 strip search of all inmates coming back?

13 A

Yes.

14 Q

Is there any way that an inmate coming back into the

15 compound from the visitor park can bring contraband in if

16 he is being strip searched?

17 A

Well, they could put it in — J don't know what the

18

, rearend, like I say, we cannot do a cavity search

19 without a doctor, and all that. It is hard, unless we

20 notice something in there, we can't do that.

21 Q

is that pursuant to regulations that doctor be

22 present for any body cavity search?

23 A

Yes.

24 Q

Do you do anything to try to prevent inmates from

25 securing any contraband that may have been hidden in the.

Pauline A. Stipes Official Federal Reporter

I park during the visiting period?

2A

We11, aftsr visiting hours, we go through the garbage

3 cans, look around where there is dirt dug up. and we will

4 lnnk in those areas, and look in a lot of areas we figure

5 t;he drugs might be, or whatever they are bringing in.

6Q

In your experience in regard to the contraband, arq

7 the weapons contraband that you have discovered items that

8 appear to have been introduced into the compound, or are

9 they items made on the compound?

10 A

99 percent are made on the compound.

11 Q

When you are talking about contraband bei,ng

12 introduced from the outside, that is primarily drugs,?

13 A

Drugs, yes.

14 Q

And in addition to the efforts made to protect the

15 institution from contraband introduced through the visitor

16 park, you have also indicated certain types of procedures

17 relating to work squads, and you talked about searches of

18 trucks?

19 A

Yes.

20 Q

.What standard search procedure is used on trucks ajs

21 they come into the compound?

22 A

When a truck comes into the compound, the driver gets

23

of the truck, we open the hood, and we have a mirror to

24 look into the truck. We go in the glove compartment, under

25 the seat, all around the truck itself.

Pauline A. Stipes Official Federal Reporter

1130

1 Q

Are those what you would — what you determine to be

2 the ordinary hiding place for items?

3 A

No. If we think a truck has something, they are

4 bringing something in, we would almost tear that truck

5 apart;.

6 Q

And how would you have suspicions that a particular

7 truck might be bringing something in?

8 A

If we get an informant that would tell us that the

9 electric truck is bringing something in, or we know an

10 inmate out there working and has been into drugs a lot, if

11 we think he is bringing it in, we do it then.

12 Q

Does that occur very often?

13 A

Them searches are done not that often, maybe two,

14 three times a month.

15 Q

Where you completely take the truck apart?

16 A

Yes, we take it apart, and do whatever we can to look

17 at it.

18 Q

On all trucks coming in, the standard procedure is

19 what you—.what you indicated earlierj?

20 A

yps,. sight-, what ypn looking atf under the hood, and

21 everything else.

22 Q

What about the work squad members themselves. What

23 is done to intercept any contraband being introduced

24 through the work squad?

25 A

All inmates when they come in from the work squad is

Pauline A. Stipes Official Federal Reporter

031

1 •patted down. When you pat down the inmate, he could have

2 them in his shoes. Normally we don't take his shoes off

3 unless we have a strip search. We hit them, bring them in

4 a room, and strip search every inmate that comes in.

5 Otherwise, every day they come in, they have to pass search

6 every day.

7 Q

Have you ever encountered inmates coming into the

8 compound who have hidden compartments on their possession?

9 A

QB-their shoes, mostly, what they do, they got [a/an]

10 false heel. They will work on the heel, and hollow it out,

11 and nail it back in. If you look at the shoe, you don't

12 know there is no bottom of the heal, and they take the

13 souls of the shoes out.

14 Q

Have you encountered that situation?

15 A

Yes.

16 Q

Is there some method used to attempt to prevent the

17 introduction of contraband into the compound in respect to

18 the perimeter of the institution?

19 A

What do you mean by perimeter?

20 Q

The fence?

21 A

We have roving patrols all the time.r They are

22 looking out for people. They are not to be near fences,

23 and cars near certain areas.

24 Q

Now, the fence is a metal fence?

25 A

That is right.

Pauline A. Stipes Official Federal Reporter

1 Q

Es there a single fence or a double fence?

2 A

There is a double fence in some areas.

3 Q

And there's some space between fences?

4 A

Jhere is what we call a paraguard; that is, in case

5 the inmate walks on that paraguard, it will ring the

6 buzzer. We know somebody is there that paraguard that

7 shouldn't be.

8 Q

Is that like a corridor?

9 A

Yes, for escape purpose, and everybody out there, we

10 know somebody is in there.

11 Q

There is that method of keeping the inmates getting

12 too close from the outer perimeter fence?

13 A

Like I say, in the rec field, you have one single

14 fence. In the compound, we have the double fence all

15 around. The paraguard there around. The paraguard there.

16 Q

What constitutes the roving patrols?

17 A

We have fog, and a lot of stuff, and these people

18 keep riding around the perimeter for escapes, and people

19 riding vehicles up and down where they are not supposed to

20 be. They do ride all day and night.

21 Q

Are those the patrols?

22 A

Right. Running around the compound.

23 Q

And are they in a motorized vehicle?

24 A

Right. They are in a pick-up truck.

25 Q

In addition to contraband introduced from the

Pauline A. Stipes Official Federal Reporter

133

1 II outside, you've indicated already, I think you said, 99

2 percent of weapons —

3 A

Manufactured inside the compound.

4 Q

Is there a term for the typical inmate weapon?

5 A

They are called a shank, quite a few names. Shank is

6 mostly what they use.

7 Q

All right. How did the inmates come to make these

8 weapons?

9 A

A lot of them will do it on the concrete. They will

10 get ahold of the grinder in the hobby craft. If they can.

11 but what they do, they usually use the concrete to sharpen

12 the blade up, and put a point on the screwdriver and do

13 that.

14 Q

Is there anything else they use?

15 A

A rake for raking leaves, they will make that a

16 weapon,. We have some of those. .Thpy take a pen, and make

17 a weapon out of a pen. Razor blades they are issued to

18 shave with, they put it between a toothbrush, and make a

19 weapon out of, that.

20

MR. DAVIS: Your Honor, we have here a box with

21 items in it which I would ask the witness if he has seen

22 before.

23

These are examples of shanks?

24

THE COURT: All right. Do you have any

25 objection to his use for demonstrative purpose?

Pauline A. Stipes Official Federal Reporter

1134

1

MR. LIPMAN: For demonstrative purpose, no.

2

THE COURT: All right. Let's utilize them only

3 that way.

4 BY MR. DAVIS:

5 Q

All right. Would you indicate and describe to the

6 judge, does one of those items have your name on it?

7 A

yes, it does. Right here, I probably confiscated in

8 '78, which is a long time. I probably used this as

9 evidence, and put my name, and date on it when I found it,

10 and whoever the inmate was that had it. They make these,

11 this probably came from a lawnmower blade.

12 Q

Could you hold it up? Are these typical of the types

13 of shanks that are retrieverd?

14 A

Yes, sir, this is a handle from the mess hall. They

15 make a weapon out of that.

16 Q

That's a spoon handle or ladle?

17 A

Looks like a ladle handle. They have ways, they have

18 ingenuity to make anything out of anything. Here is one, a

19 pick.

20

THE COURT: They made what looks like a pick

21 out of what?

22

THE WITNESS: This looks like a rod that could

23 have been part of a fence.

2 4

THE COURT: All right. What is that handle

25 material there?

Pauline A. Stipes Official Federal Reporter

135

Tl

THE WITNESS: This is tape. They use any kind

2 of tape. They have a spoon they sharpen around the edges.

3 This is the regular spoon.

4 BY MR. DAVIS:

5 Q

The bowl of that spoon has been flatten?

6 A

Right. Fork, they take the middle of the fork, and

7 take the prong out, and leave two prongs u.p. Here is part

of a fence again, sharpen that edge, and this will hurt

9 .somebody bad. Here is a razor, with a toothbrush, with a

10 razor.

11 Q

That is a toothbrush where they melted the razor in

12 it?

13 A

Yes. Here is a rake tong.

14 Q

This is a tong from a rake?

15 A

You could tell this is taken from a lawn rake.

16 Q

Placed into a wooden handle, and wrapped with tape?

17 A

Thev haye 24 hours to think of how to make weapons.

18 or whatever they want. They do good work This is one,

19 this. it is a broom handle. The man must have been quite

20 awhile, he took the Bic razor blade, and sharpened this

21 into a weapon. This is from confinement area,.

22

THE COURT: All right. He used a Bic razor,

23 and sharpened this all the time he had it?

24 BY MR. DAVIS:

25 Q

What is this one?

Pauline A. Stipes Official Federal Reporter

1 A

036 This one looks — oh, I know what this is, this iT

2 ^our clip for a clipboard. They sharpen the end of the

3 clipboard, and use that as a weapon.

4

THE COURT: How often do you shake down the

5 cells, that is search the cells?.

6

THE WITNESS: In confinement area, it is shake

7 down every day.

8

THE COURT: That man that sharpened the broom

9 handle— 10

THE WITNESS: This took quite awhile. They

11 have places that you don't believe. They put them in the

12 fans. They put it in the toilet. As long as you don't

13 flush the toilet, it is there. If you flush it. it is

14 there. I have them put it in the toilet, dope, and

15 everything else, with big hankerchiefs.

16 BY MR. DAVIS:

17 Q

Is there any pattern that inmates appear to follow in

18 respect to the hiding or secreting of these weapons?

19 A

No. If there was a pattern, we would know where they

2 0 were. They normally hide them anywhere, any place, any

21 time. They don't have a pattern where they are going to

22 put them.

23 Q

Do they normally keep them on their person?

24 A

Not knowingly, unless they are going after somebody.

25 Normally they are hidden, until at night time, they might

Pauline A. Stipes Official Federal Reporter

1137

1 bring them back to the dorijK

2 Q

And where do they hide them during the day time?

3 A

f.n the ground, buried, they have rafters in the dorm,

4 places in the dorm, there is no way, you don't figure hoy

5 an inmate can get up there, but they get up there.

6

Like I say, all kinds of places, and the beds

7 ^themselves, they have them taped under the drawers, and the

8 bed, and that is normally when we check for them, when they

9 jsnow we will do that, they put them anywhere else, in the

10 shower areas, in the sinks. I have seen them taped under

11 ^he sinks, on the rafters.

12 Q

Have you received weapons from these areas?

13 A

Yes.

14 0

Have you ever found any hidden compartments?

15 A

Well • -P^etime , a long time ago , we used to have

16 headboards , now, an inmate gave me a word that an inmate

17 had knives in the headboard. Three times I went to the

18 headboard, and three times I could not find it.

19

I told the inmate how do they open it? They made

20 themselves a secret compartment. You had to push a button,

21 and then the drawer would open, and there were two knives

22 }n it.

23 Q

Approximately how many weapons in your search

24 activities do you uncover in the course of a month?

25 A

In a month, you are talking about me personally, or

Pauline A. Stipes Official Federal Reporter

~~~I other officers?

2 Q

JT.he whole group of you?

3 A

We might come up with 5, 10, 15.

4 Q

Do you write an incident report every time you find a

5 weapon?

6 A

Yes.

7 Q

If you find the weapon on the compound buried

8 someplace, d" yn" write an incident report for that?

9 A

No. I don't. I lust take the weapon, and give it to

10 ^he captain, and get rid of it.

11 Q

If you find the weapon on a person, do you write an

12 incident repojLL2

13 A

Tf tjp find a weapon on the person, the first thing we

14 djp is put- t-hftm in t-he captain's office, and put them in

15 confinementf and use the weapon as evidence^on the 16 disciplinary report.

17 Q

Are there occasions when you do search incident

18 reports?

19 A

Ygs, sir, when we do a big search, we have to write

20 down — you have maybe 20 officers searching the wholTe 21 dorm. We want to know which bed they were in, and which

22 they weren't. A lot of inmates will state we stole this,

23 and stole that from them.

24 Q

Okay. In respect to buck, what is buck?

25 A

That is homemade alcohol.

Pauline A. Stipes Official Federal Reporter

139

1 II Q

What is buck made from?

2 A

It is made, more or less, they have to have the

3 juice, and hot water. They could make it from apples,

4 ojrange juice, oranges, grape juice, grapes, whatever you.

5 think of. They can make it like making homemade brew.

6

Vge have had inmates there that were actually chewj.n.g

7 on under arm deodarant. When I was first started there,,

8 they were drinking Right Guard in Coke. Until I found out

9 ^here were so many Right Guard cans, and Coke cans.

10 Q

How do they do that?

11 A

Right Guard, Gillette said they can't do it. All you

12 have to do is put a whole in the bottom with a nail, all

13 that powder and air would come out. We had the best

14 smelling dorms you could find. You take that alcohol in

15 the bottom, and pour it into the coke. I had an inmate

16 show the superintendent. Gillette said they couldn't do

17 it, and superintendent said it couldn't be done. I made

18 the inmate go in, and show them how to do it.

19 Q

Right Guard aerosol cans?

20 A

Jflo aerosol deodarant is on that compound.

21 Q

You showed us a metal spoon. Are metal eating

22 i^tensils used?

23 A

No, sir, all plastic now.

24 Q

Wjiere are inmates able to manufacture the wine or

25 ftuck on the compound?

Pauline A. Stipes Official Federal Reporter

140

1 II A

They could manufacture it .anywhere where there is no

2 officers around. On the rec field, we try to look for

3 <^hem, and they could manufacture it in the compound. In

4 the mess hall. in the ^Lorms, they get baking soda from the

5 mess hall, or wherever they steal it, and baking soda will

6 kill the smell. There is buck in front of me that I cannot

7 smell because of baking soda.

8 Q

Does buck emit an odor?

9 A

Yes, without the baking soda, you go right to it.

10 Q

Where have you found buck being kept by inmates?

11 A

Well, years ago we did have trailers out there for

12 library—

13

MR. LIPMAN: Your Honor, if the inquiry could

14 be limited to the post '86.

15

THE COURT: That is what we are interested in.

16

THE WITNESS: .1 don't recall if the trailers

17 were there or not. They will dig a hole. They will bury

18 j^t in the ground. They will put it in the foot lockersfc 19 with this baking soda, and you cannot tell it is there

20 unless that smell with the baking soda wears off. They

21 have a lot of places, 24 hours a day to think of it, and

22 that is what they do, how they could beat the system of

23 hiding that buck.

24 BY MR. DAVIS:

25 Q

Have you found it in toilets?

Pauline A. Stipes Official Federal Reporter

141

, in the bathroom area. there is a whole this big. 2 ^£hen I go up there with a ladder , I put my body in

3 sideways, whatever , to try to reach inside to grab the buck 4 i,n there. How the inmates get i t that far back, I don''t

5 know. They put it in the vents, and they have no ladder t;p

6 get up there, but they do it.

7Q

Did they ever put it in the commode, water closets?

8A

Not in the commodes. In garbage cans with the

9 garbage on top of it. I kept smelling it. and walking with

10 him. He had it in the garbage can, and he is emptying the

11 garbage. They will bring it in with a little bit of

12 garbage on top.

13 Q

Is that how an inmate is able to walk across the

14 compound carrying buck?

15 A

Yes, in a can, or whatever. I have caught them with

16 food, and everything else. They walk with the cart with

17 two cans on it, or a bunch of cans that are empty, and one

18 of those cans is full of buck.

19 Q

What techniques do you use to discover or uncover

20 contraband that is on the compound?

21 A

Normally, it is sight, and being there long enough,

22 you know an inmate will, in my opinion, give himself away.

23 Walking into a dorm, an inmate coming out, and he sees me,

24 and make a U-turn, something is wrong. I walk in dorms. , 25 .see three, four inmates together, all of a sudden they are

Pauline A. Stipes Official Federal Reporter

442

1 moving, something is in that area, and something is wrong,

2 and that is how I normally do it, by being there, and

3 watching them.

4 Q

You watch the behavior of inmates?

5 A

Yes.

6 Q

How they carry themselves?

7 A

Yes.

8 Q

Do you ever utilize informants?

9 A

A lot of times, without informants, we would have a

10 hard time.

11 Q

Do you have your own informants on the compound?

12 A ,1 have some, mostly informants have to trust you,.

13 They normally don't trust me. I don't say nothing to

14 nobody, I don't care who asks me.

15 Q

Are there informants who advise other officers about

16 ^the existence of contraband on the compound?

——

»

17 A

Yes, my partner has his, and other officers has

18 there'sr and that is how they find a lot of this stuff, 19 weapons, and buck.

20 Q

In addition to the patrolling of the — Are your

21 duties as police officers, yourself and Sergeant

22 McCullough?

23 A

Yes.

24 Q

Are your duties on the outside?

25 A

Yes, we have two sergeants, and the dorm officers
Pauline A. Stipes Official Federal Reporter

#43 1 that run the dorms.

2 Q

From what you told us, I gather .you also have some

3 involvement in doing searches in the dorms?

4 A

-Yes, a lot of time, like I say, I might have

5 orientation class. After orientation we take a walk 6 through the dorm, and see what we could see, and we have

7 two other sergeants, also, that take care of the dorms.

8 Q

What about other techniques that are used to uncover

9 contraband on the compound, are there ever dorm wide 10 ghakedownq?

11 A

Yes, we have them. I would say, once a month we might

12 go into one dorm or two dorms. What we like to do is go in

13 at night when they are not expecting us, inmates, they look

14 for everything. They know when you are coming, and when

15 you are not coming.

16

What we do is, wait until they go in the dorm, and go

17 to bed, and hit-, them around the time they are in the bed.

18 If they have any, it is going to be on their beds, or throw

19 it in the middle of the floor.

20 Q

When a shakedown occurs, how many correctional

21 officers are necessary?

22 A

One dorm, you might need 15 to 25 officers going in

23 that dorm.

24 Q

You alluded to accusations that inmates will make

25 against officers in the course of a search having allegedly

Pauline A. Stipes Official Federal Reporter

T

taken their property?

2A

Yes, sir, J went to an inmate, I searched his drawer

3 maybe three times. He was involved in dope, and I got sue,d

4 f_or three million dollars.

5Q

When you undertake these searches, do you do it in

6 accompaniament with another one?

7A

I go into a dorm, I tell the dorm officer to come

8 with me. This way I have no argument who put it there, did^

9 I. put it there, and I have been accused of that a lot of

10 time, I set it up, I left it there. That is why I bring

11 another officer with me.

12 Q

Okay. Wj^en a shakedown of an entire dorm is done,

13 what procedure is followed?

14 A

Well, normally, if we do it in the day time, what we

15 do is walk into a dorm, and have the inmates come out, and 16 rpat search, and search thpm as they go out. Once they are 17 «3Ut. we lock the doors, and go to every door, every locker, 18 .turn the sheet, the beds up, and look into the mattresses,. 19 They put holes in the mattress, and put knives, and 20 wsapnns, pins marijuana in the mattress. whateve£_they

21 have, we have to look for cuts in the mattresses, they put

22 all kinds of stuff, and we look for new sewn.

23 Q

They sew up the cut after that?

24 A

Qh. yes.

25 Q

In your opinion, is it feasible to have a shakedown

Pauline A. Stipes Official Federal Reporter

145

1 6 f T:he e n t iYe I~n s^t rtu t ion ?

2 A

Not really, I don't see what it would do.

3 Q

.What manpower would be required to shake down the

4 entire institution?

5 A

You probably bring in another institution with their

6 .officers. We have 1200 inmates, and 9 dorms, or 8 dorms.

7 Q

So when you shake down a dormitory, you remove all,

8 the inmates from the dormitory?

9 A

If it is during the day time.

10 Q

Does that control require some control of the inmates

11 wjiij.e they are out of the dorm?

12 A

We need officers out there, too.

13 Q

Now, you also indicated that in addition to your

14 police duties, you serve on the PR team, disciplinary

15 report team?

16 A

Yes.

17 Q

How many personnel serve on a PR team?

18 A

There is fhrpe of u s ^ chief classification officer,

19 security officer, and one of the inmates' own

20 classification officer.

21 Q

I assume you serve as the security officer?

22 A

Yes.

23 Q

How do you view the seriousness of the presence of

24 contraband on the compound?

25 A

When it comes to a disciplinary proceeding?

Pauline A. Stipes Official Federal Reporter

046

Well, the disciplinary team, if somebody comes in7 2 with alcohol, or making the buck, they get severe

3 punishment. Somebody comes in, and maybe had something to

4 ^rink, we take his gain time, 30 days, and i£ they come in

5 a second time, \e put them in confinement, and sixty days.

6 We take his 30 plus 20, plus 80 he would have got for, what

7 the State gives them. So they lose quite a bit of time.

8 Q

if you take 30 days of gain t i m e — Explain what gain

9 time is?

10 A ftain time is what they earn, and what the State gives 1 1 them.. It is like an inmate, well, I know, everybody knows,

12 he gets a five year sentence, he is out in a year and a

13 half, two years with this gain time. If he is caught doing

14 things, with DR's, he might spend that whole five years.

15 Q

There is time taken off the sentence?

16 A

Yes.

17 Q

Is there different types?

18 A

Incentive, gain time they earn, and I am trying to

19 think, because I don't get into gain time. That is

20 classification study there.

21 Q

When an inmate receives a 30 day loss of gain time

22 sentence, does that mean he has lost 30 days of accrued

23 gain time that he earned?

24 A

30 days from what he has accrued.

25 Q

That is taken away from him?

Pauline A. Stipes Official Federal Reporter

«47

1 A

That is taken right then and there.

2 Q 3 A

In addition to that, does some other penalty follow?r As soon as you get a PR, whether we take gain time or

4 put them on probation, they lose the 20 days they earned..

5 or if they earn the 20 days, and they lose whatever tfre

6 state gives them, 80 days a month.

7 Q

Not only do they lose the accrued time, but they lose

8 the gain time they could have gotten?

9 A

They lose a lot of time.

10 Q

PR offense could result in a loss of 130 days plus

11 additional time in prison?

12 A

Yes.

13 Q

Do you find the loss of gain time is an effective

14 deterrent generally with the prisoners?

15 A

Yes, I do. If I am getting out, if I am an inmate, I

16 know I am getting out in five years, and I get a DR, and

17 take off 130 days, that is hurting me. I am going to be

18 longer, and worry about catching another one. It does

19 deter.

20

That is the only thing we have going for us out

21 there.

22 Q ffave you ever encountered inmates who indicated that

23 they were less desirous of loss of gain time than

24 confinement?

25 A

They rather go to confinement. If they go to

Pauline A. Stipes Official Federal Reporter

148

confinement, they will still lose the gain time, if they

2 ask if we could work it off, or do anything like that.

3 They don't want to lose that.

4Q

Have you been involved in criminal prosecutions for

5 inmates for possession of contraband on the compound?

6A

I don't understand what you mean.

7Q

Have you ever cited an inmate for possession of

8 contraband on the compound and requested of the prosecution

9 office, State Attorney's Office that they prosecute?

10 A

You mean to take it outside? I wouldn't waste my

11 time, to be honest with you.

12 Q

Why is that?

13 A

I have taken cases bringing booze, and the judge made

14 a joke out of it, and thought it was funny. We bring

15 jpeople, judge Adams, at the time, when he was there, we

16 ^used to bring people with marijuana. He would give them

17 jail time served. We do better with PR court, and I don't

18 understand one thing, North Florida, if they catch an

19 j.nmate with a weapon, he gets five years consecutive. Our

20 place, we bring him outside, time served. That is jail

21 time.

22 Q

Take him to outside court?

23 A

Outside court. It is not worth it.

24 Q

And you also indicated that you are orientation

25 officer?

Pauline A. Stipes Official Federal Reporter

149

A

Yes.

2Q

What do you do as orientation officer?

3A

When new inmates arrive, within 7 days we have to

4 orientate the inmate when they arrive. I have role call

5 every day. Wednesday morning, Wednesday morning I take

6 many over to chapel. I bring in education. I bring in

7 every place they have to know about into the chapel to hayet 8 them orientate the inmates, and I orientate about

9 contraband, too much money, visiting park, which is in a

10 handbook that we give them when they get there.

11 Q

The institution gives them a handbook?

12 A

I give them a handbook, as soon as they arrive

13 through orientation.

14

THE COURT: Mr. Davis, find a convenient time

15 to stop.

16

MR. DAVIS: A couple more questions.

17 BY MR. DAVIS:

18 Q

Among the services, do you also introduce them to

19 psychological services?

20 A

.Yes, psychological brings over a counsel over therte,

21 he tells them, talks to them, and then tells them how to

22 get in to see the psychologist, and forms, and all that,.

23 Q

Do you ever counsel any inmates that you see about

24 flny problems, or potential problems that you think they

25 might encounter?

Pauline A. Stipes Official Federal Reporter

~I fl A

#50 In the last three months, we havp mnrp s-jrk 3' s that

2 come in there, a lot of them do have problems. If I see

3 they have a problem, or I think they have a problem, I will

4 ftring them over to the psychiatrist.

5

THE COURT: What is a sick 3?

6

THE WITNESS: Well, he is in bad shape,

~l mentally. That is what it is. Lately, I don't know what

8 it is, but that is what we have been getting. There are

9 mental problems, and I see one, you have a sick 3 that

10 could make it on thp nnnipminri without a problgji. You have

11 some that you could tell by looking at them, and talking to

12 them they are not going to make it. J take them to Dr.

13 Medina. I tell Dr. Medina, I have somebody I want you to

14 see. Dr. Medina and I ride together, and he knows me. He

15 will take the inmate in. and talk to him.

16 BY MR. DAVIS:

17 Q

Do you know of other officers who refer people to the

18 psychologist, or Dr. Medina?

19 A

Yesj they do.

20 Q

Do you ever make an effort to suggest to any of the

21 incoming inmates that you think may encounter problems at

22 the institution?

23 A

Yes, tif I see a young blond inmate, I will ask them,

24 and talk to him, and say if you have any problem, come and

25 see me, and I will try to help. I have been there, and

Pauline A. Stipes Official Federal Reporter

1 J:hat is the way I am, I will try to help,.

2 Q

you are talking about some type of sexual pressure on

3 them?

4 A

Yes.

5 Q

Have inmates ever come to you and indicated that they

6 felt they were being sexually pressured?

7 A

Yes.

8 Q

And what do you do in those circumstances?

9 A

Normally, if an inmate comes to me and says sergeant,

10 I have a problem with the dorm, so many blacks, who they

11 are, or what they are. I ask them, do you want to tell me

12 who it is? Normally, 99 percent, they are not going t;o

13 tell you.

14

I give them a choice. I say two ways we could do it,

15 <one, you and the inmate, we will have a talk in the room

16 ourselves, just the three of us, and see if we could get it

17 settled. If the inmate don't want to do that, I give.

18 another choice, you want to move, and go to PC? I could

19 put you in another dorm, or go to PC. That is all I can

20 do.

21

MR. DAVIS: No further questions, Your Honor.

22

THE COURT: All right. You have questions on

23 cross-examination?

24

MR. LIPMAN: I do, Your Honor.

25

THE COURT: How long do you think you will be

Pauline A. Stipes Official Federal Reporter

_ I w i t h him.

2

MR. LIPMAN: 20 minutes.

3

THE COURT: So he won't have to come back

4 tomorrow, let's go ahead and do cross-examination now. We

5 will recess as soon as that is over with.

6

CROSS-EXAMINATION

7 BY MR. LIPMAN:

8 Q

Let me kind of pick up where you ended sergeant—

9 A

Nappi.

10 Q

Nappi?

11 A

Nappi.

12 Q

You've discussed with inmates their concern with

13 regard to sexual pressures?

14 A

No, I didn't say that. I said if I see one that I

15 think might have a problem, I will talk to them. If one

16 comes up with me and has a problem, I will talk to him.

17 Q

Has any inmate since January, '86 come to you and

18 express to you their concerns with regard that sexual

19 pressures have been placed on them?

20 A

I have had inmates come U P to me, yes.

21 Q

Has that happened on a regular basis?

22 A

No, sir.

23 Q

How often does that happen over the last four years?

24 A

Last four years, maybe 10. 15 inmates come up to me.

2 5 A lot of them that doesn't mean that is what happened, a

Pauline A. Stipes Official Federal Reporter

1 lot of them want to be moved to another dorm, and they wij.1

2 tell me that.

3 Q

Qf the 10 or 15 inmates that came up to you, do you

4 l^now of those inmates, how many do you believe actually did

5 have sexual pressure?

6 A

Probably about 10 of them.

7 Q

And what did you do for those 10?

8 A

Like I say, if the inmate comes up to me and tells me

9 he is having a problems with another inmate in the dorm, I

10 will tell them, you want me to talk to you or another

11 inmate in the room, the three of us, and see what is going

12 on. The inmate says no and I say you want me to move you

13 to another dorm. If he says fine, I will ask him how are

14 you doing over there, whatever. If not, I get him over to

15 the lieutenant, and put him in PC for his own protection.

16 Q

Of the 10 inmates that you felt had ligitimate

17 concerns, and sexual pressures, how many placed in PC?

18 A

probably one.

19 Q

Were the others transferred to other dorms?

20 A

Yes, if they wanted to.

21 Q

And sergeant, would you have knowledge as to whether

22 any of the other of those 10 inmates were transferred out

23 of GCI?

24 A

No. I don't have the knowledge of that. If they

25 have more problems, they go to PC, probably, and get

Pauline A. Stipes Official Federal Reporter

054

transferred.

2 Q

Now, the inmates that came to you, would they come to

3 you because they were located in a specific dormitory?

4 A

No. Because they trust me.

5 Q

And I am not quite clear, /jo you have supervision

6 over inmates throughout the compound?
I

7 A

I am all over the compound. Like I say, you have to

8 get an inmate to trust you, and they trust me being there

9 so long, I am all over that compound, north compound, south

10 compound, all over the place.

11 Q

So the inmates who have come to you either know you,

12 or know you have been around a long time, and form a trust?

13 A

Yes.

14 Q

The inmates that are new to the system wouldn't knqw

15 you, is that right?

16 A

.They do. they know me from other institutions.

17 Q

How do they know you?

18 A OTputh-to-mouth. The inmates tell everybody in the

19 next institution, me and Sergeant Barra had our names all

20 over the State of Florida.

21 Q

?fhat about those inmates that are transferred to QCI,

22 as the first institution?

23 A

A new inmate, no. He wouldn't know. But I have had

24 them in this jail know about me.

25 Q ftould it be fair to say the new inmates coming into

Pauline A. Stipes Official Federal Reporter

1155

1 the system would be those that might, who are new to the

2 world of a prison, those are the inmates that might receive

3 the greatest amount of sexual pressure when they are first

^ brought into the institution?

5 A

I don't think so.

6 Q

Why?

7 A

That is up to the inmate.

8 Q

That is up to the inmate?

9 A

Right. No inmate has to take anything. They know

10 how to handle themselves, if they want to.

11

THE COURT: They know how to handle what?

12

THE WITNESS: I say an inmate can handle

13 himself. If he wants to handle himself, he knows how to

14 take care of himself.

15 Q

Have you in the last four years, do you have any

16 knowledge as to any inmate that has been raped?

17 A

I donft have any knowledge of it.

18 Q

At GCI?

19 A

No, sir.

20 Q

Do you have any knowledge as to any inmate where an

21 attempt of physical or sexual assault was made?

22 A

Myself, no. I don't know.

23 Q

Not —

24 A

Like I said, myself, I never had knowledge of it.

25 Q

In the capacity as a sergeant who has jurisdiction

Pauline A. Stipes Official Federal Reporter

456

1 throughout the compound, have you become aware through

2 other officers of any inmate that has been raped in the

3 past four years?

4 A

No. If I did/ I would want to know about it, and I

5 would know about it. I never heard anybody tell me that.

6 Q

Now, if I understand correctly, part of your duties

7 involve participation with the inmates, and their initial

8 orientation?

9 A

Yes1.

10 Q

In the past four years, have you informed the inmates

11 of potential sexual pressures that may be placed on them?

12 A

No, sir.

13 Q

You never indicated to any of the inmates?

14 A

My answer is, if you have any problem, see me, and I

15 will try to handle them, help them.

16 Q

Are you aware of the issues that were raised in this

17 lawsuit through the last proceedings in the fall of 1985?

18 A

You talking about what I am here for now?

19 Q

Yes.

20 A

To be honest?

21 Q

Yes.

22 A

No. I read the paper about it.

23 Q

And aside from your participation today, are you the

24 most senior officer in terms of continuity of service at

25 GCI?

Pauline A. Stipes Official Federal Reporter

«57

1 A

There is one or two more longer than I have.

2 Q

So other than the one or two?

3 A

I have been there—

4 Q

The most service?

5 A

Yes.

6 Q

And you have no idea what the proceedings in this

7 lawsuit involved in the fall?

8 A

Only what I have read. You are talking about this is

9 years ago. Right, I heard about it. But until everybody

10 come and talk to me now, I didn't know that much about it.

11 Q

What was your understanding as to the proceedings

12 following through January, 1986?

13 A

What do you mean? I don't understand what you are

14 talking about.

15 Q

Aside from your participation today, what is your

16 understanding about the nature of this case?

17 A

This trial?

18 Q

Yes, the trial that occurred several years ago?

19 A

Oh, that trial, right. That was they were suing the

20 superintendent and the State.

21 Q

Do you know over what concerns?

22 A

They claimed they were raped. I don't know.

23 Q

Do you know how that was resolved?

24 A

That they won the case.

25 Q

Have you ever seen the decision?

Pauline A. Stipes Official Federal Reporter

058

1 A

No, sir. It has nothing to do with me.

2 Q

Would it have any effect on anything you do?

3 A

Whether they win or lose?

4 Q

Well, any of the findings that were made?

5 A

In the last one? You mean in the last time?

6 Q

Yes.

7 A

No. I don't see why it would have anything to do

8 with me. I am only a sergeant out there.

9 Q

Did anybody higher up, any of your supervisors

10 discuss the nature of the issues that were resolved in that

11 case?

12 A

Not that I know. No sense talking to me about it. I

13 have nothing to do with it.

14 Q

Aren't you the — as the third most senior officer,

15 as I understand it, the officer whose responsibility it is

16 to orient new inmates?

17 A

I am misunderstood. You saying the higher-ups talk

18 to me about it?

19 Q

Yes.

20 A

No. I don't have nothing to do with it. Orientation

21 is a different story that we are talking about now. I am

22 confused, really.

23 Q

All right. I will try to take it in steps, then.

24 Did any of your supervisors tell you after the proceedings

25 in the fall of 1985, January 1986, that things ought to be

Pauline A. Stipes Official Federal Reporter

159

1 II changed at all? Orientation process ought to be altered?

2 A

No, sir, they didn't.

3 Q

Nothing at all?

4 A

No.

5 Q

Concerns of inmates being raped and assaulted were

6 found by the court system, and that your orientation ought

7 to address that?

8 A

Like I say, with the orientation, I usually ask if

9 anybody has any problem, come to see me, and the captain,

10 any problems, any problem.

11 Q

You indicated to me that you asked in a general —

12 A

I don't taljc_about rape when we have orientation.

13 Q

You do not talk about rape?

14 A

No.

15 Q

Do you talk about sexual assaults, and pressures?

16 A

No. I would talk to an inmate that I might feel

17 would have a problem, or one that comes to me that would

18 have a problem, but I don't talk to them about it.

19 Q

Does anybody talk about sexual pressures — let me

20 finish.

21 A

All right.

22 Q

To your knowledge, in the orientation process, when

23 an inmate is first transferred to GCI, does anybody speak

24 to that inmate about sexual pressures, or sexual assaults,

25 or rapes, or problems that may occur?

Pauline A. Stipes Official Federal Reporter

1 A

Not to my knowledge, I don't recall.

2 Q

All right. In the 17 years that you have been at GCI

3 prior to January, 1986, were you ever aware of any inmate

4 that was raped?

5 A

No, I wasn't, to be honest with you.

6 Q

You had talked a bit about gain time. Is it your

7 understanding when an inmate checks into PC, protective

8 confinement, because of a concern they have, that they are

9 not eligible for gain time?

10 A

Well, when they are in confinement, they don't get

11 gain time.

12 Q

You had also indicated, tell me if I am wrong,

13 generally you found it a waste of time to attempt to send

14 cases out to the criminal system for violations that were

15 — violations of law that were occurring within the prison?

16 A

Yes, that is my opinion.

17 Q

That's what I am interested in. When is the last

18 time that you referred a case to, would that be the State

19 Attorney in Belle GladeF Palm Beach County?

20 A

I don't recall when I did, but I presume they have

21 had some go out in maybe a year or so.

22 Q

And when was the last time that you referred one?

23 A

Quite awhile.

24 Q

Are you able to fix a time?

25 A

No, sir, I couldn't.

Pauline A. Stipes Official Federal Reporter

1 Q

g gather that means that some officers as you said, a

2 year ago, sent or referred cases?

3 A

Yes.

4 Q

Out, but you haven't?

5 A

It isn't that I haven't. It is all according to

6 what they want to do. When I catch somebody with a bunch

7 of marijuana on his person, it is up to them, captain,

8 superintendent whether they want to send it out. All I say

9 j.t is a waste, in my opinion.

10

I wrote an article about the judges. I would like

11 them to work in the prison system, and tell us it is funny

12 when they work in there.

13

THE COURT: What is that?

14

THE WITNESS: I said I would like to see the

15 judges work in the prison system to see that it isn't funny

16 that booze comes into the compound, and makes a joke of it;.

17 They don't realize, when they are drinking that booze, and

18 it is our lives in danger.

19 BY MR. LIPMAN:

20 Q

If you were to make a suggestion to Your Honor, would

21 the suggestion be to create a process where the

22 prosecutors, and judicial system take more serious the

23 activities that constitute a crime among the prisoners at

24 Glades?

25 A

My opinion is, when we take someone to outside court,

Pauline A. Stipes Official Federal Reporter

162

1 II the man has a weapon, I think he should be duly punished

2 for that weapon.

3 Q

One final area. I gather from your testimony, I

4 think you indicated this at the beginning that it is just

5 over the years you found it is impossible to insure that

6 weapons and contraband can be stopped, either to be coming

7 jLnto the prison through the compound area, or made within

8 the compound?

9 A

.All we can do is control it, sir.

10 Q

And would it be fair to say that if you went to

11 Glades today, you would find contraband?

12 A

Yes.

13 Q

Absolutely?

14 A

Yes.

15 Q

You would find drugs?

16 A

You are going to find something in every prison.

17 Q

You will find weapons?

18 A

In every prison.

19

THE COURT: I didn't hear your last answer.

20

THE WITNESS: In every prison.

21

THE COURT: All right.

22 BY MR. LIPMAN:

23 Q

Aside from every prison, we are here on Glades today?

24 A

Right.

25 Q

No doubt about it, you would found weapons?

Pauline A. Stipes Official Federal Reporter

1 II A Yes, sir.

163 ~ '

2 Q

And the box of weapons that you showed us that are

3 listed as the types of weapons?

4 A

The ones that are homemade weapons.

5 Q

The same thing with marijuana, and cocaine?

6 A

What do you mean?

7 Q

The same thing, if you looked hard enough at Glades

8 today, this very minute?

9 A

Somebody has marijuana, yes.

10 Q

You would be able to find it?

11 A

I didn't say that. I said somebody might have it. I

12 didn't say I could find it.

13 Q

Do you think it exists based on your 17 years

14 experience. You have seen it all in your 17 years, I would

15 assume, you think it exists on the compound today?

16 A

Yes.

17 Q

At Glades?

18 A

Yes.

19 Q

How about cocaine?

20 A

There is some cocaine, yes.

21 Q

And buck?

22 A

Yes.

23 Q

What additional methods would you suggest using to

24 cut down the amount of this kind of contraband at Glades

25 today? What else would you do, if you could?

Pauline A. Stipes Official Federal Reporter

464

A

Well, it is pretty hard. The only thing I suqqest*Ts~

2 get a dog.

3 Q

Get a dog?

4 A

That is my opinion.

5 Q

Tell me about getting a dog?

6 A

That dog would be walking around that compound.

7 Q

And the dog could be trained?

8 A

Yes, one that would find marijuana^ drugs.

9 Q

All right. Have you had a dog?

10 A

Yes.

11 Q 12 A

Have you used dogs in the last four years? I don't remember four years, no. We have used it.

13 Q

Since January, '86?

14 A

Dates, I do not remember.

15 Q

All right. That is one suggestion, any other

16 suggestions of what you might do to attempt to cut down the

17 control of contraband?

18 A

That, I don't know. It is hard.

19 Q

How about having more people, more staff working,

20 under your direction?

21 A

That isn't going to stop it.

22 Q

Beg your pardon?

23 A

That is not going to stop it.

24 Q

We are talking about attempting to control it?.

25 A

We are controlling it now. That is what W P arp

Pauline A. Stipes Official Federal Reporter

165

2Q

A larger number of staff?

3A

The more people you have got, the better you could

4 ^do, true.

5Q

How about additional metal detectors?

6A

Metal detectors inside are not worth two cents. All

7 the bunks are metal. It would turn the metal detector on.

8Q

Any ideas that come to your mind other than the use

9 of dogs, and increasing staff?

10 A

Just, you got to keep looking, that is all I can say.

11 You got to keep your eyes open, and watch what is going on.

12

MR. LIPMAN: I have no other questions.

13

THE COURT: Any redirect?

14

MR. DAVIS: A couple questions, Your Honor

15

THE COURT: All right.

16

REDIRECT EXAMINATION

17 BY MR. DAVIS:

18 Q

Sergeant Nappi, so there is no confusion over the

19 situation, you indicated you are one of the most senior

20 correction officers?

21 A

I am.

22 Q

However, you are not, in the line of command, one of

23 the administrative officers?

24 A

No, I am just a sergeant.

25 Q

You are a sergeant. Above you lieutenants, captains.

Pauline A. Stipes Official Federal Reporter

166

1 II major, and c o l o n e l ?

2 A

Right.

3 Q

And insofar as additional staff for your function,

4 which is the police function of a compound is concerned,

5 does that job depend so much on manpower or on relationsh|Lp

6 g>f the person performing it?

7 A

The person performing it.

8 Q

And in respect to gain time in protective

9 confinement, are you personally familiar with what the

10 rules are on that?

11 A ffo, sir( that is more or less classification. All I 12 do is work with them when they have the DR's.

13 Q

And your jurisdiction on the compound is as the

14 police officer patrolling to discover contraband?

15 A

Yes, sir.

16

MR. DAVIS: No further questions.

17

MR. LIPMAN: No further questions.

18

THE COURT: All right. You may step down,

19 thank you.

20

(Witness excused.)

21

THE COURT: Gentlemen, we will be in recess

22 until tomorrow morning at 9.

23

MR. DAVIS: Your Honor, with respect to the

24 weapons, it is your preference not to have them in

25 evidence?

Pauline A. Stipes Official Federal Reporter

167

Tl

THE COURT: That is right.

2

MR. DAVIS: Could we substitute a photograph?

3

THE COURT: Yes, I think that is all right if

4 you would like to do that.

5

MR. DAVIS: If we could have an agreement, make

6 a photograph of the items, lay them out, photograph them?

7

MR. LIPMAN: Yes.

8

THE COURT: Okay, that will make it easier to

9 handle them.

10

We will be in recess until 9 tomorrow.

11

(Thereupon, a recess was taken at 12:30 p.m.)

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

 
 LaMarca v. Turner ;-FL-007-033

168
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA

4

5 ANTHONY LaMARCA, et al.,

6

Plaintiffs,

7 VS.

8 CHESTER LAMBDIN, et cetera.,
Defendant.
9

) Case No.82-8196 ) Civ- PAINE

10

West Palm Beach, Florida

11

January 11, 1990

12

9:00 a.m.

13 APPEARANCES:

14

DAVID MICHAEL LIPMAN and WILLIAM ROBERT AMLONG,

ESQS., on behalf of the Plaintiffs.

15

MICHAEL B. DAVIS and WALTER M. MEGINNISS,

16

ESQS., on behalf of the Defendants.

17

18

19

The above-styled case came on for Trial before

the Hon. James C. Paine, U.S. District Court, at the U.S.

20 Federal Courthouse, West Palm Beach, Florida, on the 11th day of January, 1990.

21 VOLUME 4

22

23

24

4

25

Pauline A. Stipes Official Federal Reporter

169

r

INDEX

2

3

WITNESS

DIRECT

CROSS REDIRECT RECROSS

4 STEVE HALLER

470

480

488

5 FRED FREY

489

524

543

6 LEON PETERS

550

556

562

7 DANIEL LOCKWOOD 566

593

609

8 CHESTER LAMBDIN 614

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

170

"T~J

THE COURT: Good morning, gentlemen. ATI

2 right. Where are all here. Who is our next witness?

3

MR. MEGINNISS: May it please the court, our

4 next witness is Sergeant Haller.

5

THE COURT: All right. Ask him to come

6 forward, please.

7

STEVE HALLER, DEFENSE WITNESS SWORN.

8

THE COURT: Please be seated. Tell us your

9 name.

10

THE WITNESS: Steve H a l l e r .

Steve

11 H a l l e r .

12

THE COURT: You may proceed.

13

DIRECT EXAMINATION

14 BY MR. MEGINNISS:

15 Q

Mr. Haller, where are you employed?

16 A

Palm Beach County Sheriff's, Belle Glade Substation.

17 Q

How long have you been so employed?

18 A

With the Palm Beach Sheriff's Office. 1980.

19 Q

What duties do you perform?

20 A

A.sergeant assigned to the Detective Bureau, working

21 agricultural crimes, theft of farm equipment, agricultural

22 equipment.

23 Q

Have you served as a detective/sergeant?

24 A Yes.

25 Q

in prior years, have you conducted investigations at

Pauline A. Stipes Official Federal Reporter

1171 1 glades CnrrprKonal institution?

2 A

Yes.

3 Q

What areas, what subjects did you investigate?

4 A

Any and all complaints received to the Sheriffs

5 Qffice that I was assigned to do the initial investiqation,

6 and/or followup on, sir.

7 Q

Prior to your tenure or duties with the Sheriff's

8 Department of Palm Beach County, did you have any other law

9 enforcement experience or employment?

10 A

Yes, I became a certified police officer in the State

11 of Florida, 1977, worked for the City of Belle Glade frqm

12 .'77 until '80.

13

Prior to that I was commissioned officer in United

14 States Army assigned to the special weapons command doing

15 investigations in the military.

16 Q

Now, turning to the duties at the Glades Correctional

17 Institution, have you had occasion to investigate sexuajL

18 assaults at Glades Correctional Institution? ,

19 A

Yes, I have.

20 Q

pid you participate in an investigation of an inmate

21 by the name of Haveard, Hark White, and another one by the

22 name of Mickie?

23 A

YjejS' sir, I did.

24 Q

Did you write reports on these?

25 A

Yes, I did.

Pauline A. Stipes Official Federal Reporter

172

2
2A

Have you reviewed reports in recent days? Yes.

3Q

they arrnrate to reflect what your investigation

4 was?

5A

Yes, they are.

6Q

Take Mr. Haveard, would you tell the court what you

7 did with respect to the investigation of Mr. Haveard?

8A

In the case of Mr. Haveard, f.I was notified on 24

9 September. 1987 that an alleged sexual battery had taken

10 place at Glides Correctjonal Institution. It was a delayed

11 report.

12

I went to the institution, met with the inmate. He

13 informed me that he had been assigned to Glades

14 Correctional institutional in January, or February of that

15 y_ear. That shortly upon his arrival he met an inmate by

16 the name — that he referred to as Golden. He did not know

17 the inmate's name, that Golden had become his friend. He

18 had given him cigarettes, that they had smoked marijuana 19 together, and a short time after that. Golden wanted 20 payment, told him he would not take money, told him he

21

favors from him. Qut of fear, he submitted

22 tp sexual acts: that this all occurred within the first

23 several weeks he arrived. This is September when he

24 reported-, it.

25

I asked him why he waited that long, he stated he

Pauline A. Stipes Official Federal Reporter

173

^ wanted to stop the rumor on the compound that he was "a~

2 homosexual^. He could not identify the inmate other than

3 anything by the name of Golden, a black male with gold

4 teeth, and further stated the inmate had been reassigned^to

5 another institution. He did not know where.

6

I explained to the inmate due to the fact of the

7 delay, no physical evidence, and no identifiable suspect

8 that this case would probably not be prosecuted. I checked

9 with the investigator at the prison, tried to determine who

10 Golden was. We were unable to do so.

11

Due to the fact that we have never been able to

12 identify Golden as a person, this case is still in an

13 inactive status, and in one of my files.

14 Q

And with further evidence, it could be further

15 pursued?

16 A

If we ever determine who Golden is, and he can be

17 interviewed.

18 Q

All right. Next on the agenda, I think I ask you to

19 review the investigation of Mark White, did you investigate

20 Mark White,?

21 A

Yes, i did.

22 Q

Did you bring your report on that one?

23 A 24 Q

Ye_s, I did. Have you reviewed it pursuant to my direction in the

25 past several days?

Pauline A. Stipes Official Federal Reporter

1 II A Yes, I have.

174 ~~~

2 Q

Please tell the court what procedures were used, and

3 what were the results of the investigation of Mark white

4 beginning with what he was suspected — or what his

5 complaint was?

6 A

I was notified on the 4th of April, 1989 that sexual

7 battery had taken place at Glades Correctional Institution,

8 that the victim was at Glades Correctional Hospital at

9 Belle Glade undergoing a sexual assault exam.

10

I drove to the hospital, was given Mark White's name.

11 He was in one of the rooms with a doctor assigned to Glades

12 General Hospital, by the name of Fuchs.

13

Upon complection of that examination, I spoke withi

14 the doctor, and took from him a sexual rape form that the

15 doctors fill out and sign for on a property receipt. The

16 doctor told me after completing the exam, during his exam,

17 he found nn trauma, tearsf ripsf or blood, or any signs of 18 anal intercourse. He stated in his opinion—

19

MR. AMLONG: Objection, hearsay, move to

20 strike.

21

THE COURT: Overruled.

22 BY MR. MEGINNISS:

23 Q

Proceed.

24 A

He told me the anal opening appeared to be normal.

i

25 At that time, I took the rape kit into evidence. Mark

Pauline A. Stipes Official Federal Reporter

175

1 11 .White was taken back to~Glades Correctional, and I went

2 back into the Institution, and interviewed Mr. White. He

3 told me between 1 and 1:30 that morning while locked up in

4 confinement, that the person in confinement with him by the

5 name of Martin had take two razor blades, a part of a

6 ballpoint pen, and informed him that he was going to

7 perform anal sex on him.

8

That he was afraid of Martin, .that Martin used baby

9 oil on him, that he performed a sexual act that lasted for

10 approximately 20 minutes. He stated that the inmate did

11 not — between 3, 3:30, Martin performed anal intercourse,

12 and at that time, he did ejaculate. I asked him if he had

13 a bowel movement, he stated he did. I asked him why he did

14 not notify the guards, and he stated he was afraid for his

15 life, that that afternoon around 3 o'clock in the

16 afternoon, he stated that he had stomach cramps and asked

17 to be taken to the infirmary. Either enroute, or at the

18 infirmary, he stated he had been sexually assaulted.

19

Uppn gompletion of that interview with them, or

20 during that interview, I requested that that cell be

21 secured.,

22

After the interview, I went to the confinement area.

23 !_ searched the cell. I did not find razor blades, nor did

24 I find parts of a ballpoint pen either intact or that had.

25 been sharpened. I looked at the sheets, I did not find any

Pauline A. Stipes Official Federal Reporter

176

1 stains. I looked at the mattress, mattress cover, again,

2 fli,d not find any stains. I did see a bottle of babv oil 3 that W 3 S o n t n e metal shelf that is attached to the wall,

4 in that confinement cell.

5 Q

And what was your conclusion from this, and

6 recommendation from this investigation?

7 A

At that time, based on lack of evidence, or the

8 filoctor's statement at that time, not finding any physical

9 evidence in the cell. I took the rape kit in my possession,

10 turned it over to our evidence custodian who forwarded it

11 to the county lab in West Palm Beach.

12

A short time later I was notified that the anal swabs

13 did not find spermazoid. I got the lab report back, and

14 made an appointment with the State Attorney's Office in

15 Belle Glade, and had an appointment with them, and on the

16 19th of April* Assistant State Attorney Paul D'Amico

17 informed me this is a nonprosecutable case, and it should

18 be exceptionally clear.

19 Q

What is the status of that file today?

20 A

That case has been exceptionally cleared due to the

21 State Attorney stating it is a nonprosecutable case.

22 Q fret's look at Mickie. Did you have a case to

23 investigate an alleged sexual assault with Mickie as the

24 victim?

25 A

Yes, September 4, 1986, I was informed by Lieutenant

Pauline A. Stipes Official Federal Reporter

177

Higctenbothom th^at there was a possible assault that;

2 occurred 11/30/86. About 4:30 that afternoon I went to the

3 institution. I met with Lieutenant Bennett who was the

4 acting Institution investigator at that time. He told me

5 that inmate Mickie was the alleged victim, that Mickie had

6 told him that on the night of the 30th of November he had

7 been sexually assaulted by 4 black males; that he had

8 requested permission to go to the dispensary to have his.

9 medical records—and indicated that he had been sexually,

10 assaulted—in c^ase he wound up with a venereal disease.

11

I then interviewed the inmate, or brought him in to

12 conduct an interview, introduced myself to him, informed

13 him a complaint had been made. At that point, Inmate

14 Mickie informed me he had not reported the crime, and he

15 .would not report it in any way, that he would not

16 cooperate, that his constitutional rights would allow him

17 not to cooperate in any form.

18

At that point he turned to the lieutenant in the

19 room, and asked for permission to leave, permission

20 granted, and I exceptionally cleared that case because the

21 alleged victim would not cooperate in the investigation.

22

MR. AMLONG: .1 am objecting to the testimony of

23 Inmate Mickie on the grounds of relevancy. We have neve.r

24 proposed to the court that Mr. Mickie was raped. He is not 25 one of our witnesses.

Pauline A. Stipes Official Federal Reporter

178

Tl

THE COURT: Why is that relevant? I didn't

2 recall that we heard anything about his case.

3

MR. MEGINNISS: This evidence is being

4 introduced because Mr. Mickie was an incident report

5 provided to the defense, and happened to be one of those

6 investigated by this officer. It does show there is some

7 question, and certainly some matter of doubt as to whether

8 or not when these claims are made they, in fact, exist, and

9 for that purpose, we would like it introduced into

10 evidence.

11

MR. DAVIS: I believe, Your Honor, the

12 plaintiffs did introduce the answers to interrogatories

13 provided by the defendants that listed those names.

14

THE COURT: This case's answer to those. Go

15 ahead, finish up.

16

MR. DAVIS: Unless they wish to withdraw a

17 claim for those of any they didn't put on for testimony

18 that allegedly were assaulted.

19

THE COURT: I will overrule the objection,

20 proceed.

21 BY MR. MEGINNISS:

22 Q

Go back to Haveard. Would you tell me when Haveard

23 allegedly said he was assaulted?

24 A

In his case, he told me he had been assigned to the,

25 Institute late January, early February, 1987.

Pauline A. Stipes Official Federal Reporter

179

Q

When did he report the assault?

A

On the 24th of September, 1987.

3Q

Some 9 months later?

4A

Yes.

5Q

All right. But he did not report that immediately?

6A

No, sir.

7Q

Now, let's go to Mr. White again. In your report,

8 how many times does it show that he claims he was

9 assaulted?

10 A

(He informed me he was assaulted that morning.

11 Q

Would you please tell the court what methods you use

12 in investigating inmates, how you normally conduct

13 investigations and interviews?,

14 A

There are absolutely no differences with the

15 conduct investigation with an inmate, or citizen of Palm

16 Beach County. I treat all victims in the same mannej.

17 There is no difference.

18 Q

Do you normally conduct your investigations of

19 inmates with anyone present?

20 A

ynder normal circumstances, I conduct those

21 interviews without any correctional officers present.

22 Q

Is there any reason for that?

23 A

Yes, I found that dealing with inmates, whether they

24 be in the County Jail, or State Institution, they are more 25 f^ree to talk if there is no one from the correctional

Pauline A. Stipes Official Federal Reporter

180
system there.

2Q

How do you normally address inmates, when you are

3 inquiring of them?

4A

I usually ask them, if I know the full name, their

5 full name, Hr_. , and then ask them, what may I call you,

6 shall we keep this formal, or may I call you by your first

7 name, and depends on that person what I call him.

8

MR. MEGINNISS: Just a moment, please.

9

You may inquire. I would like to introduce these,

10 reports into evidence.i

11

MR. AMLONG: I object only that they contain

12 hearsay on hearsay.

13

THE COURT: I think they can be received over

14 that objection. What are the numbers?

15

MR. MEGINNISS: Number 39f It is a composite.

16

THE COURT: All right. Defendant's 39 is a

17 composite of the reports with respect to Haveard, White,

18 and Mickie?

19

MR. MEGINNISS: That is right.

20

(Defendant's Ex. 39 received into evidence.)

21

THE COURT: You may proceed, sir.

22

CROSS EXAMINATION

23 BY MR. AMLONG:

24 Q

Good morning, Detective Haller, my name is William

25 Amlong. I am one of the lawyers for the plaintiff in this

Pauline A. Stipes Official Federal Reporter

181

1 case.

2

On Mr. Haveard's alleged rape, he identified his

3 alleged assailant as a black man who had a gold tooth, and

4 his name was Goldie?

5 A

Yes.

6 Q

What efforts did you make to find out who Goldie was?

7 A

The efforts I made were going through the institution

8 investigator, since Mr. Haveard stated that the inmate was

9 already gone. Therefore, we couldn't take him around the

10 institution to point the gentleman out.

11 Q

What did you do?

12 A

I asked the prison investigator to try to find out

13 who Golden was. Mr. Haveard did not know where the

14 gentleman had gone to. That is the extent to what I was

15 able to do. I had nothing to do with. I asked the

16 institution to try to come up with a name. They were

17 unable to do so.

18 Q

You don't know what efforts the investigator made?

19 A

No, sir, I don't.

20 Q

Was any attempt made to show Mr. Haveard mug shots?

21 A

No, sir.

22 Q

You've reviewed prison inmate files in your work,

23 have you not?

24 A

Yes, I have.

25 Q

And you are familiar with those files in the way they

Pauline A. Stipes Official Federal Reporter

#82

1 note distinctive physical characteristics, are you not?

2 A

On the photo card, yes.

3 Q

If somebody has a tatoo, they mark that down; if

4 somebody has a gold tooth, they mark that down?

5 A

Yes.

6 Q

Did you ask anybody to conduct a search of black

7 inmates with a gold tooth?

8 A

No, sir.

9 Q

Did you ask Lt. Peters for a list of all the inmates

10 that had been transferred from the date of the alleged rape

11 up to the date of your —

12 A

No, sir.

13 Q 14

—investigation? En Mr- White's case, you interviewed Inmate Martin,

15 djd you not?

!6 A

Yes, I did.

17 Q

And you read him his rights, and he said he did not

18 want to talk to you?

19 A

Y_£_s.

20 Q

Did you have a chance to review his inmate file?

21 A

I am sure I did. I normally look at inmate files

22 prior to an interview.

23 Q

yfere you aware he told Mr. Martin — I am sorry, Mr.

24 Martin told Mr. Whif-e that Mr. Martin had recently come

25 from Chattahoochee. the criminally insane hospital?

Pauline A. Stipes Official Federal Reporter

183

~~I A

Yes. I think I did.

2 Q

Did you confirm that?

3 A

I don't remember.

4 Q

Did you confirm whether or not Mr. Martin had ever

5 previously, using the same MO, same modus operandi, had

6 committed another rape?

7 A 8 Q

No, I didn't. Well, with your police experience, you have 13 years

9 now, police experience?

10 A

Yes.

11 Q

Plus before that, you were commissioned officer,

12 investigator in the Army?

13 A 14 Q

Yes. And you have had schooling in criminal investigation?

15 A

Yes.

16 Q

And is it a criminal's method of operating evidence

17 that you generally look for?

18 A

Not on initial investigation. If you have a suspect,

19 that is not something you look at initially.

20 Q

If you have a suspect, you look at it?

21 A

No, sir, if you have a suspect, you don't initially.

22 If you are looking for an unknown, you look for those

23 factors, who does what, and what manner.

24 Q

Would it be helpful for you to have found out whether

25 or not Mr. Martin had committed a similar crime before

Pauline A. Stipes Official Federal Reporter

484 1 using a similar method?

2 A

No, sir, it would not. May I expound on that answer?

3 Q

Please?

4 A

Due to the fact that we have been able to establish

5 that sexual assault took place at that time, it had to have

6 been done by Mr. Martin who was in the cell. It was not

7 like it would have been done on the compound with whoever

8 out of the population, whatever the population was at that

9 time, so Mr. Martin's background was not of concern to me.

10 If the act had actually been done, it had to be Mr. Martin.

11 They were locked up together.

12 Q

You are saying you only looked for MO if you were

13 trying to find out who did it?

14 A

Yes, if I am dealing with an unknown.

15 Q

Okay. Would you attempt to look for MO to give to

16 the prosecutor in the case so that prosecutor would show

17 that the defendant was acting as he had before?

18 A

Yes, once probable cause has been established, an and

19 arrest is made, that is part of the followup in the package

20 that goes in for prosecution, not on the initial

21 investigation.

22 Q

Now, you said you only found the baby oil, correct?

23 A

Yes.

24 Q

Would your opinion as to the truth of Mr. White's

25 claim be influenced if there had been additional physical

Pauline A. Stipes Official Federal Reporter

185

1 evidence found in the cell?

2 A

If there had been additional physical evidence, we

3 would have possibly been able to establish probable cause.

4 Q

Well —

5A

I have not said I did not believe Mr. White's story.

6 I am saying there was no physical evidence to go ahead with

7 prosecution.

8 Q

.flave you ever investiqated a rape case on just an

9 outside woman?

10 A

Yes, I have.

11 Q

Are you familiar with the fact that in Florida the

12 testimony of the rape victim is sufficient to bring a case

13 to trial?

14 A

Yes, sir, I am.

15 Q

And it then becomes a question of whom does the jury

16 believe?

17 A

I have never known of the rape case to be one in the

18 State of Florida on the testimony of the victim alone.

19 There has to be some substantial evidence.

20 Q

If the ink pen had been found in the cell, that would

21 have further corroborated Mr. White's story, would it not?

22 A

Yes.

23 Q

And weren't incident reports provided to you from the

24 correction officers?

25 A

Yes, they were.

Pauline A. Stipes Official Federal Reporter

1

MR. AMLONG: Your Honor, may I approach the

2 witness?

3

THE COURT: Yes.

4 BY MR. AMLONG:

5 Q

Detective, I would like to show you an incident

6 yeport that was written by Officer Freddy R. Garrett, and

7 direct your attention to the highlighted portion. Do you

8 recall reading that report from Mr. Garrett?

9 A

Yes, I do.

10 Q

Do you recall his saying — Now that you read this,

11 do you recall the ink pen was found in addition to the baby

12 oil?

13 A

I remember reading this that he found an ink pen.

14 f\r. White stated that it was a portion of an ink pen that

15 had been charred.

16 Q

When you got to the hospital emergency room, that was

17 at — you got the call at 1530, that translates into 3:30

18 p.M,. correct?

19 A

Yes.

20 Q

And do you know what time — Do you know what time

21 Mr. White reported the—reported the rape to Officer

22 Garrett to begin with?

23 A

J[ was led to believe it was approximately 3 o'clock,

24 sir.

25 Q

In the afternoon?

Pauline A. Stipes Official Federal Reporter

j

_

2 Q

And what time did you finally get to the cell?

3 A

I'm not sure. I would guess it was probably close to

4 an hour and a half, two hours from the time I was notified

5 until I got to the cell.

6 Q

_Pid you investigate whether or not the sheets had

7 been rhangsd?

8 A

yes, I did. I was told they had not been.

9 Q

If you had discovered any motive for Mr. White to

10 have been lying, you would have included that in your

11 report, would you not?

12 A

Yes.

13 Q

pid you discover any motive for Mr. White to be

14 lying?

15 A

No, sir, I didn't.

16 Q

Except for the lack of evidence, do you know of any

17 reason to disbelief Mr. White?

18 A

I reviewed Mr. White's file, again, before going tp

19 the State Attorney's Office, and I found where he had

20 reported a similar incident at another institution.

21

As to whether or not Mr. White was lying to me that

22 day, I don't know. Because it became an unprosecutable

23 case.

24 Q

He did not evidence any animosity towards Mr. Martin,

25 did he, except for anger at this event?

Pauline A. Stipes Official Federal Reporter

188

~A

Yes, that is the only animosity that he showed

2 against that particular individual.

3Q

Okay.

4

MR. AMLONG: Nothing further, Your Honor.

5

THE COURT: Mr. Meginniss?

6

REDIRECT EXAMINATION

7 BY MR. MEGINNISS:

8Q

Officer Haller, do you make the decision what case

9 should be prosecuted?

10 A

No, sir, I don't.

11 Q

Who does?

12 A

Assistant State Attorney that I go before.

13 Q

Whether or not a case is prosecutable is not your

14 decision?

15 A

No, sir.

16 Q

Okay.

17

MR. MEGINNISS: I have no further questions.

18

THE COURT: Thank you, sir, you may step down,

19 (Thereupon, the witness was excused.).

20

THE COURT: Your next witness.

21

MR. DAVIS: Mr. Fred Frey, F r e y.

22 23 24 name. 25

FRED A. FREY, DEFENSE WITNESS SWORN

Li, ,

IS

THE COURT: Please be seated. Tell us your

THE WITNESS: Fred A. Frey.

Pauline A. Stipes Official Federal Reporter

489

~~I

THE COURT: F r e y ?

2

THE WITNESS: Yes.

3

THE COURT: All right. You may proceed.

4

DIRECT EXAMINATION

5 BY MR. DAVIS:

6 Q

Mr. Frey, could you tell us where you reside?

7 A

At the present time, the full address, sir?

8 Q

Yes.

9 A

352 Old Branch Road. Southeast. Eaton, E a t o n , .

10 Georgia. 30124.

11 Q

Are you presently employed?

12 A

No, sir, I am on federal retirement, part-time

13 employed as a correctional consultant.

14 Q

Before your retirement which you indicated, I suppose

15 was in the federal service, what was your employment?

16 A

I was employed by the Federal Bureau of Prisons from

17 approximately 1951 through February 1980.

18 Q

Let me show you an item we marked Defendant's Ex. 2,

19 and ask you if you have seen that?

20 A

Yes, I have seen it.

21 Q

Is that your resume'?

22 A

Yes, it is. .

23 Q

Is that an accurate resume'?

24 A

I believe it is.

25

MR. DAVIS: We offer that into evidence.

Pauline A. Stipes Official Federal Reporter

#90

~~I

THE COURT: Do you object?

2

MR. LIPMAN: Is that what I reviewed yesterday?

3

No objection, Your Honor.

4

THE COURT: All right. Defendant's 2 is

5 received without objection.

6

(Defendant's Ex. 2 received into evidence.)

7 BY MR. DAVIS:

8 Q

Mr. Frey, would you review what your assignments in

9 the Federal Prison System were over that period of time?

10 A

I first started out working as an administrative

11 .assistant at the post quardhouse in Ft. Levenworth, Kansas

12 in 1950, and the followinq vear, '51 , I transferred from
13 ihere ove r to the federal penitentia at Levenworth

14 Kansas as a parole clerk.

15

Shortly after that, about a year as a parole clerk, %

16 became a correctional officer, and worked in that capacity

17 for approximately one vear, and then returned to clerical

18 duties^

19

While working as a clerk, I re-enrolled in college

20 courses, and completed the work for a BA Degree in social

21 sciences in 1960, at which time I was promoted to a

22 classification and parole officer at the Levenworth Federal

23 Penitentiary.

24

I remained as a classification parole officer .until^

25 '67. at which time I was transferred to United States

Pauline A. Stipes Official Federal Reporter

1 Penitentiary. Atlanta," Georgia, as chief of parole^

2 classification officer.

3

I remained there until 1970, at which time I vast

4 selected as a correctional program adviser, and detailedntp

5 the law enforcement assistance administration in the

6 Atlanta Regional Office at which time I administered as a

7 correctional programs adviser to the correctional

8 institutions, and facilities of the eight southeastern

9 states.

10

Approximately 18 months later, I was promoted and

11 ^transferred to the position of the associate warden at the

12 federal penitentiary at Marion, Illinois, and remained

13 there in my capacity until my transfer in Texarkana, Texas

14 a,s warden.

15

In February. 1980. I retired as warden there, and

16 frhen was part time employed with the American Correctional

17 Association as an auditor for the accreditation process,

18 and since that time. I have participated as a member and

19 also as a chairman of teams auditing approximately 1OO|| 20 institutions, and in 18 states within the United States, up

21 to the present time.

22 Q

All right, sir.

23

Could you J:ell the judge something about the American

24 Correctional Association, what its purpose is. and what its

25 activities consist of?

Pauline A. Stipes Official Federal Reporter

192

1 A

The^accreditation process actually Began roughly

2 about 20 years ago, and they were in 1970, and they were

3 studied, and developed the standards, and guidelines until

4 about 1978. when they was formalized into a manual of

5 standards consisting of approximately 453 standards, 40 of

6 which were mandatory standards, which the institution had

7 fro pass in order to be eligible for accreditation, and the

8 other 413 standards, they had to pass at least 90 percent

9 of those. These standards were developed to act as

10 guidelines for the systematic improvement of correctional

11 programs, and services.

12 Q

And who devised or developed these particular

13 standards?

14 A

There were a number of people involved in the

15 development of these particular standards. They consisted

16 of correctional penalogists. people from all over the

17 United States. People who dealt in engineering,

18 architectural development, all of this was taken into

19 consideration.

20

Every facet of the correctional services was involved

21 in developing the standards, from the correctional on up to

22 the warden.

23 Q

Were the standards developed with the assistance of

24 t,he academic community as well as the professional

25 community?

Pauline A. Stipes Official Federal Reporter

1 A 2 Q

yery defin^frelv. Now, you indicated that as originally established in

3 1978, there were approximately 450 standards, 40 of which

4 you said were mandatory?

5 A 6 Q 7 A

Yes. And the rest of which were non-mandatory? Non-mandatory, yes.

8 Q

What was the purpose of the distinction between

9 mandatory, and non-mandatory standards?

10 A

The mandatory standards dealt primarily with life,

11 health, and safety of the inmate in the institution, and 12 they felt that any institution that was not interested in

13 meeting those 40 standards was not worthy of accreditation.

14 They would grant—on the rest of the standards which were

15 non-mandatory, they would grant leeway up to 10 percent,

16 and still find them in acceptable circumstances.

17 Q

When you say 10 percent, do you mean 10 percent of

18 the non-mandatory standards had to be — no more than 10

19 percent could be in violation?

20 A

That is correct, sir.

21 Q

So that if 413, it was required that an institution

22 pass at least 370, approximately?

23 A

I don't know exactly what the number is. 90 percent

24 of that 413.

25 Q

When did you become associated with the ACA in

Pauline A. Stipes Official Federal Reporter

194

1 II respect to performing auditis?

2 A

A year prior to my retirement from the federal prison

3 system. Texarkana was selected as the second institution in

4 the Federal Prison System to undergo the accreditation

5 process, and we prepared for the accreditation for

6 approximately one year, and we were accredited, I believe,

7 January, 1980, as a second institution. Retiring, and

8 being involved in that process, I just, more or less,

9 automatically in retirement slipped over into the auditing

10 team, so to speak.

11 Q

All right. Explain how the American Correctional

12 Association determines whether an institution is in

13 compliance with the standards or not?

14 A

They send a team of generally three people to an

15 institution, and takes approximately three days to review

16 everything in the institution, review all the standards.

17 First they go i n —

18 Q

Let me ask you, first, does the team do any work

19 before they arrive for the inspection?

20 A

Except just to review materials about the

21 institution, the size, number of inmates, number of

22 buildings, a few things like that.

23 Q

Generalized information about the institution?

24 A

Right.

25 Q

Before they arrive there, and then they arrive, tell

Pauline A. Stipes Official Federal Reporter

495

~~I us what they do?

2 A

First they meet with the warden, and his

3 administrative staff. The purpose of the audit is

4 described to them. Immediately after that entrance

5 interview, the frpam -is taken on a complet-p four of thq

6 institution which involves every facet of the institutigp,

7 all of the living quarters, food service. chapel, whatever,

8 have you, a tour generally takes five, six hours.

9 Q

In the course of that tour, who makes the decision as

10 to what you are going to see?t Does the team, or does the 11 institutional guide?

12 A

Generally, it is left up pretty much to the warden.

13 or whoever is leading the tour to take us around, but we

14 are allowed, and asked to see various areas, ask them to

15 open various doors, closets, whatever have you, food

16 lockers, and we are not denied admission to any part of the

17 institution.

18 Q

Before coming to the institution, are there any

19 procedures that the American Correctional Association

20 follows in order to prepare for the receipt of information

21 about the institution?

22 A

Prior to the teams arrival at the institution, a

23 potice is posted on the various inmate bulletin boards, and

24 staff bulletin boards throughout the institution advising

25 t;)iem of the accreditation process that the institution is

Pauline A. Stipes Official Federal Reporter

196

undergoing, that the audit team will be arriving on so and

50 date, that they will accept letters or requests for

interview from inmates and/or staff relative to any

congqrns that they might have about the operation of the

institution.

Let me ask you about that generally. You say you

participated in approximately 100 of these audits?

Yes.

jgas it been your experience that there is any type of

10 response, any significant response to these requests that

11 are posted for the inmates, and for the staff to respond

12 with any concerns that they have?

13 A

ye have received responses, yes. As to what degree,

14 w.e receive maybe responses from people in about 20 percent

15 o.f the institutions that I visited.

16 Q

Okay. And when you receive those responses, do you

17 seek out the individuals that submit those?

18 A

Y^g. we do.

19 Q

Going back, then, to the team audit, you said you

20 speak with the staff and the warden, or superintendent, you

21 survey the compound?

22 A

Yes.

23 Q

What else is done?

24 A

After making our initial tour of the facility, then

25 we retire to ordinarily a conference room which contains

Pauline A. Stipes Official Federal Reporter

1 files on each and every standard that it is concerning"!

2 which would be 453 files, one file for each standard.

3 Q

And where do the files come from?

4 A

They are generated by the warden and his staff.

5 Q

Is this in response to a request that is made?

6 A

Yes, it is part of meeting the documentation portion

7 pf the standard. And the team retires to the room, reviews

8 each file relative to the particular standard.

9

In this file must be what we call secondary

10 documentation relative to the reports that must be

11 gubmitted. The reviews that must be done on policy

12 statements. The various tests that are administered by

13 independent audits of the institution, by maybe an

14 engineering firm or accounting, or whatever, and also

15 relative to your hospital, the various inspections that are

16 done by the local authorities, and things of this nature.

17

We often return, if a particular standard is not

18 clear to us, we will return to the area of the institution

19 to which the standard refers to, and make a secondary

20 inspection of that particular area, to either justify our

21 findings in that particular standard.

22 Q

All right. What else is done by the team in the

23 course of the audit?

24 A

We try to get back into the institution, and talk

25 with as many inmates and staff as possible relative to the

Pauline A. Stipes Official Federal Reporter

#98

1 programs offered by the institution, and conditions 2 existing there at the time. If anyone has concerns, and so 3 forth, we encourage them to relate them to us.

4 Q

Okay. Is there anything else besides what you just

5 described that takes place in the course of an audit?

6 A

At the completion of the audit, we have what we call

7 a close out interview, at which time it is generally

8 conducted with the warden and administrative staff, and any

9 other members of the institutional staff that he would like

10 to have present.

11

it is not uncommon to have 50 or 60 of the staff

12 .setting in on the closeout. At that time, we advise them

13 of our findings in the institution, any shortcomings we

14 feel they have uncovered. Any areas that they need

15 improvement in, and any areas we think they needed

16 commended for, and we advise them of our particular totals 17 or findings. We also advise that we are not the final 18 authority in the matter. We advise them a full report and 19 our findings will be submitted to the commission on

20 accreditation, at which time they will review the report,

21 send it back to them for review, at which time they may

22 appeal, ask for waiver, or submit a plan of action to

23 correct the non-compliance standard, and after that has

24 been completed, the whole system then is reviewed by a

25 panel of experts at the American Correctional Association,

Pauline A. Stipes Official Federal Reporter

1 and a decision is reached whether accreditation will or 2 will not be granted.

3 Q

And what does accreditation mean? What does it mean

4 when the American Correctional Association issues

5 accreditation to an institution?

6 A

<Thev met an acceptable number of the 453 standards to

7 be accredited as an acceptable operation of correctional

8 facilities.

9 Q

Do all correctional facilities or prisons seek to be

10 accredited?^

11 A

Ho, not all. A large percentage/ there is over 600

12 institutions involved in the process a number of years. It

13 is much higher than that at the present time.

14 Q

In the course of your conducting these audits, have

15 you encountered situations where institutions have failed

16 to obtain accreditation?

17 A

yery definitely' At least at the initial audit.

18 They failed mainly on mandatory standards. Most of them

19 pass the 90 percent deal, but the mandatory standards, if

20 they flunk one of the mandatory standards, they cannot be

21 accredited.

22 Q

All right. What is the approximate percentage of

23 institutions in your experience that have failed the

24 accreditation process?

25 A

I would say that the percentage range is somewhere _8^

Pauline A. Stipes Official Federal Reporter

iOO

1 II to 10 percent ~

2 Q

Okay.

3 A

But; you have to remember that they work approximately

4 18 months to prepare for this audit.

5 Q

You mean the institution is prepared by attempting to

6 correct deficiencies in advance?

7 A

Meet the conditions of the standards. It is not

8 uncommon for an institution to call in what we call a mock

9 audit team prior to the regular audit to go over all of the

10 standards, and see if they do, indeed, or can, indeed, pass

11 the accreditation audit.

12 Q

Okay. Now, did you have occasion in the year 1987 to

13 conduct an audit of Glades Correctional Institutional?

14 A

Yes, I did.

15 Q

Let me show you Defendant's Ex. 9. Can you identify

16 that, please?

17 A

Yes, it is the report submitted to the accreditation

18 commission on the audit at the GCI, February, 1987.

19 February 16th through the 18th.

20 Q

Okay, thank you.

21

MR. DAVIS: Your Honor, we would offer this

22 into evidence as Defendant's Ex. 9.

23

MR. LIPMAN: No objection.

24

THE COURT: It is received without objection.

2 5

(Defendant's Ex. 9 received into evidence.)

Pauline A. Stipes Official Federal Reporter

T~

MR. DAVIS: Your Honor, I only have one other

2 one. May I stand by the witness, and question him?

3

THE COURT: No, that is all right. Go ahead.

4 BY MR. DAVIS:

5 Q

Let me show you Defendant's Ex. 9. When was the

6 audit conducted on Glades Correctional by the ACA team?

7 A

The last audit February 16th through the 18th, 1987.

8 Q

Had there been prior audits of Glades Correctional?

9 A

Yes, I believe there was an initial audit, I believe

10 in 1981, a second audit in 1984. I don't know the exact

11 dates.

12 Q

All right. Now, in conducting this audit, did the

13 team have cause to refer to the prior audit to see what

14 that audit had indicated?

15 A

Xes, it did.

16 Q

And did you use that as a base for which you then

17 began your current audit?

18 A

Yes.

19 Q

Okay. Could you tell the court, first of all, who

2 0 was on the team that conducted this audit?

21 A

In addition to myself, as chairman, a Mr. Jack

22 Faumener. deputy director, Nebraska Correctional Services,

23 also, Mr. Glenn Davis, State Warden from South Carolina.

24 Q

Who was the chairman?

25 A

I was.

Pauline A. Stipes Official Federal Reporter

;02

1 Q

You were the chairman? Okay. When did you arrive at

2 the prison?

3 A

February 16th.

4 Q

And how long were you at Glades Correctional for the

5 audit?

6 A

Through the 18th of February.

7 Q

16th, 17th, and 18th?

8 A

Yes.

9 Q

Do you know if prior to your arrival at the

10 institution there were notices posted in accordance with

11 the procedure that you previously indicated?

12 A

Yes, they were posted when we arrived, and everything

13 was in order.

14 Q

When you arrived, were the required items of

15 documentation available to the teaiq?

16 A

Yes.

17 Q

Tell the court what you did in the course of the

18 audit after you arrived there at Glades Correctional?

19 A

Pretty much the same procedures I described before.

20 Initial interview, entrance interview with the warden, and

21 administrative staff, the tour, review of the

22 documentation. The close out interview, referrals, report,

23 and commission, and that is about it, briefly.

24 Q

X ° u had occasion, then, to view the compound itself

25 at that time?

Pauline A. Stipes Official Federal Reporter

503

1 A

Yes, ve did.

2 Q

Was there any change between the facility as it

3 existed at the time of your audit, and that which was

4 reflected in the prior audit documents at Glades?

5 A

There had been considerable improvement in the — I

6 think it was in the dining food area, also, the cannery,

7 which is what they refer to it as, it was prison industry.

8 I believe prison industries refer to it as pride in Florida

9 to operate a cannery. They converted that into dormitory

10 quarters. I believe it happened sometime in 1985, which is

11 after the second audit. That had been changed. There had

12 been a substantial increase in population and staff.

13 Q

Were there any changes noted in staff procedures or

14 staff training?

15 A

Prior to that particular audit in '87, the

16 .institution had not met their training requirements, and

17 .their training standard had been found in non-compliance.

18 When we reviewed it during our audit, all training was up

19 to par at that time.

20 Q

Was there anything else that you noticed besides the

21 expansion of the facility, and the other changes that

22 you've indicated between the condition as reflected in the

23 prior audit, and the position that your team took the

24 institution at?

25 A

No major changes, no, sir.

Pauline A. Stipes Official Federal Reporter

~T ~Q

And would you go through the audit and indicate to

2 the court, first of all, what was the result of the audit

3 on the mandatory standard?

4A

They passed 100 percent of the mandatory standard.

5Q

And in respect to the non-mandatory standard, do you

6 know what the degree of compliance of the institution was?

7A

It was about 96.4 percent, roughly. They only had 9

8 standards that was in non-compliance at that time.

9Q

And those were the non-mandatory standards?

10 A

Those were the non-mandatory standards, yes, and in

11 the audit in '84, there were 14 non-compliant mandatory

12 standards, and at this time, there were only 9.

13 Q

All right. Is it at all in your experience as a

14 member of accreditation or auditing committee to find

15 institutions in non-compliance with the non-mandatory

16 standards? Does that occur?

17 A

Restate your question.

18 Q

In the course of your auditing work, what is the

19 frequency with which you find that institutions do not meet

20 some of the non-mandatory standards?

21 A

Well, there are a number of standards that are,

22 commonly found in non-compliance. One of the main ones is

23 the tenure of the warden that is assigned to the

24 institution. The standard requires that he received more

25 or less due process if he is terminated.

Pauline A. Stipes Official Federal Reporter

505

1

Actually, most wardens serve at the descretion, In

2 Florida it would be the descretion of the Secretary, and

3 this is not in keeping with the standard.

4

Other standards that are found to be in

5 non-compliance, most regularly, again, one is the training

6 standard which we mentioned earlier. Standards dealing

7 with the control, and care, and — of an accountability of

8 toxic substances along with tools. That standard gets into

9 trouble a lot of times in various institutions. Another

10 standard that they have trouble with, a lot of people who

11 are in confinement status, in administrative, protective

12 segregation, protective confinement, administrative

13 segregation, a lot of time institutions do not feed a

14 restricted diet in these particular facilities, and the

15 standard calls for a regular diet, and food should not be

16 used as punishment.

17 Q

Are there any such standards in protective

18 confinement that are frequently not complied with?

19 A

.Generally, the physical layout of the cells, of the

20 segregation standards, a lot of time not complied. They

21 don't have the necessary floor space. The American

22 Correctional Association prefers that confinement cells be

23 limited to one person per cell. Most of your institutions

24 will have two people or more per cell, and that is one

25 standard that is generally found in non-compliance.

Pauline A. Stipes Official Federal Reporter

1 Q

What about having running water available, is that a

2 standard which is often—

3 A ftoSt. of them have running water, but a lot of thetn^

4 don't have hot and cold water in their facilities. I

5 believe GCI did have hot and cold water in their

6 confinement cells.

7

They are also required to have, among other things a

8 stool and desk in the confinement area. A lot of them

9 don't have the stool and desk.

10 Q

Among the audits that you conducted, how does a

11 compliance rate of approximately 95 percent on the

12 non-mandatory standards range among the institutions that

13 you have audited?

14 A

I would say ^slightly above average.

15 Q

W_hat were the standards at GCI, non-mandatory

16 standardsf which were found in non-compliance?

17 A

You want me to name all 9 of them?

18 Q

Yes, if you could?

19 A

All right.

20

THE COURT: On this exhibit, it shows 14,

21 number of —

22

THE WITNESS: That was a typographical error.

23 There were only 9 standards found in non-compliance.

24

THE COURT: All right.

25

THE WITNESS: The first standard that was found

Pauline A. Stipes Official Federal Reporter

1 in non-compliance was-- You want me to give the number of

2 the standard?

3 BY MR. DAVIS:

4 Q

Just describe what it had to do with this?

5 A

This called for the tenure of the warden, and this

6 was found in non-compliance. He served at the descretion

7 of the Secretary.

8

The second standard found in non-compliance also

9 dealt with the tenure of the warden.

10

The third standard dealt that the standard requires a

11 physical examination for all employees at the time of

12 employment. I think GCI at that time were only requiring

13 that the correctional officers be given a physical

14 examination, and I believe those in the food service.

15

The fourth standard here called for the salaries of

16 correctional personnel be equal to those of similar

17 occupations in the state or region, and they weren't up to

18 par on their salaries.

19

The next standard dealt with the institution maintain

20 a confidential personnel record on each employee, and in

21 the State of Florida. I believe you have what is referred

22 to as the Sunshine Law which says all personnel records are

23 open to review. The next standard dealt with institutions

24 Q_f more than five hundred inmates shall be divided into

2 5 units of 100 or less.

Pauline A. Stipes Official Federal Reporter

508

This was not true at GCI, so they failed that particular standard.

Q

Let me ask you, how many institutions in the country

conform with that standard?

MR. LIPMAN: Objection, Your Honor, there has

been a continuing series of questions about what other

institutions meet or don't meet in terms of the audit

findings, and I just don't think it is relevant to this

case.

10

MR. DAVIS: I think, Your Honor, we are here on

11 an 8th Amendment issue, towards which what is the standard

12 practice in the country is a relevant issue.

13

MR. LIPMAN: Not so. We are under a compliance

14 issue on whether and what scope of injunctive relief this

15 court should render if at all based on past finding that

16 have been made by His Honor.

17

MR. DAVIS: I don't believe that is true. I

18 believe that the proceeding here is to determine whether

19 current conditions are, in fact, unconstitutional under the

20 8th Amendment. There has been no finding of any

21 unconstitutional conditions by this court subsequent to

22 1984.

23

MR. LIPMAN: I beg to differ. That is not how

24 I understand the charter of the proceeding.

25

THE COURT: I will overrule the objection. I

Pauline A. Stipes Official Federal Reporter

509

1 am not sure what standard we are governed by. I will try

2 to figure that out before we enter the order. I will hear

3 the evidence, anyway.

4

THE WITNESS: The next standard —

5

THE COURT: You wanted to know — Go ahead, and

6 restate your question, please.

7 BY MR. DAVIS:

8 Q

Currently, today, what is the extent of the

9 compliance with that particular standard by institutions?

10 A

Because of the recent over crowding, and so forth, _a__

11 lot of institutions are in non-compliance with that

12 particular standard, dealing with institutions having more

13 than 500 inmates per unit.

14

THE COURT: What did you say about the other

15 institutions, what porportion, and how many of them?

16

THE WITNESS: A large percentage.

17

THE COURT: All right.

18

THE WITNESS: The next standard deals with

19 dormitories having no more than 50 inmates in them, and

20 they had many more than that. I do not know the exact

21 number, over the 50 number, so they were non-compliance

22 there.

23

The next standarc^ dealt with the housing units in

24 segregation, and the requirements therein, and that he not

25 meet that particular standard, because the standard calls

Pauline A. Stipes Official Federal Reporter

1 for single occupancy of the cells, and in the GCI facility

2 they had double celling.

3

In the confinement area, in addition to poor

4 lighting, the absence of a desk, or a writing table, or

5 writing shelf of some kind, and those areas there, so they

6 were found in non-compliance on the segregation unit.

7

The pext audit dealt with the use of dormitories in

8 the planning.. The American Correctional Assnriahinn are

9 not in favor of dormitory type institutions, in maximum,

10 close, or medium security facilities, so it was noted in

11 recent years, the GCI institution had converted the cannery

12 into dormitories, thereby, bringing themselves in

13 non-compliance with that particular standard.

14 BY MR. DAVIS:

15 Q

What is the currency of dormitory facilities at

16 correctional institutions with such levels of custody in

17 the united States today?

18 A

New constructions mostly in single cells.

19 Q

And what about most existing facilities?

20 A

A lot of dormitories.

21

The next particular standard that they were in

22 non-compliance with dealt with the amount of day room or

23 leisure time space available. The standard calls for 35

24 square feet of floor space per inmate.

25

Now, jbhis is inside floor space, and their day room

Pauline A. Stipes Official Federal Reporter

511

I space did not equal that amount. They were found in

2 non-compliance with that one.

3

They were found in non-compliance with the standard

4 dealing with control, and use of tools in their particular

5 hobby craft area. It was determined by the team members

6 that there was n.fft sufficient accountability for the too\s

7 and equipment used in that particular area, so they were

8 found in non-compliance of that.

9

The next standard^ dealt with inmates being provided,

10 inmates with the option to refuse to participate in any

11 rehabilitation treatment program except the adult basic

12 education program, but in GCI, the inmate may opt not to

13 attend any education.

14 Q

The standard requires the inmates to attend?

15 A

The basic classes, it requires them, yes, but there

16 they had the option, whether they would or would not.

17

The next one dealt with confinement of men in

18 segregation status as a sanction for disciplinary report.

19 The standard called that ^hey could not remain in

20 continuous confinement for more than 30 days — Excuse me,

21 I am wrong on that particular one.

22

It deals that be may not be in seqreqation for more

23

30 days for multiple violations occurring in one

24 incident. The practice at Glades at that time, the policy

25 statement said they could be in for 60 days.

Pauline A. Stipes Official Federal Reporter

1 Q

This is talking about disciplinary confinement as a

2 form of punishment?

3 A

As a sanction, yes, disciplinary report.

4 Q

And the ACA prefers to have the maximum penalty

5 limited to —

6 A

One incident, 30 days, yes.

7 Q 8 A

And Glades was — Their policy statement called for, they could go up

9 as high as 60 days. The next standard non-compliance dealt

10 with inmates who should be paid for work as in savings and

11 work programs. In the Florida system inmates are not paid.

12

And that is all the standards of non-compliance.

13 Q

Could you, briefly, without going into a lot of

14 detail, but briefly survey with the court the areas that

15 these standards cover, and give him an idea—

16 A

All standards?

17 Q

Yes, just a survey, just a general area?

18 A

They cover every aspect, practically, of the

19 institution. Deal with every department in the

20 institution, whether it be with training, accounting,

21 counseling, religious programs, work programs, segregation

22 programs, housing, staff training.

23 Q

Do they include security?

24 A

TJiey definitely include security. The observation

25 available from the tours, the various systems used in

Pauline A. Stipes Official Federal Reporter

513

~~I perimeter security, patrols, number of staff.

2

The accreditation process, if I may volunteer, is

3 heavy into direct written policies governing all of these

4 functions, and these policies reviewed by the

5 administration on an annual basis, and documented that they

6 were reviewed.

7 Q

All right. Are the standards currently under review

8 for modification?

9 A

I don't know that they are under review for

10 modification, but &hey are under review for change or

11 whatever. Yes, there will be a new manual out shortly.

12 Q

All right. Does one of those areas under

13 consideration for review concern the size of the facility?

14 A

Yes. And that is being dictated, I am sure, by the

15 press, and population at the present time.

16 Q

What is the consideration being given for a

17 modification of that particular?

18 A

I am not positive, but I believe it is 750 instead of

19 500.

20

THE COURT: What do you mean 750?

21

THE WITNESS: They will raise the optimum from

22 500 up to 750.

23

THE COURT: For anyone correctional

24 institution, you mean?

25

THE WITNESS: Yes.

Pauline A. Stipes Official Federal Reporter

514

1

THE COURT: Are there any standards that rate

2 these institutions on whether or not they are over-crowded?

3 I notice in your report you say this institution is

4 supposed to have some 600 inmates, and it really has about

5 1100. Does that receive any consideration in the

6 accreditation review?

7

THE WITNESS: y^s, that is a consideration,

8 yes, definitely. There is a standard that relates. I

9 j:hink they failed that particular standard that we reviewed^

10 that said they were over-populated. I think they are

11 designed to pass 600 some, and they had way over that

12 amount at the time of the accreditation.

13 BY MR. DAVIS:

14 Q

Now, in respect to Glades Correctional, have you had

15 occasion subsequent to the audit that was performed by your

16 ^committee to again visit Glades?

17 A

yes, I did.

18 Q

When was that?

19 A

That was, I believe, the gth of December, 1989.

20 Q

Was that at our request?

21 A

Yes, that was at your request.

22 Q

What did you do while you were there?

23 A

First met with the warden, or superintendent there,

24 and then toured the housing facilities. I believe that you

25 and Mr. Meginniss accompanied us on the tour of several of

Pauline A. Stipes Official Federal Reporter

I the dormitories.

^

I later toured a larger section of the facility with

3 the chief supervisor of security there, and visited othe.r

4 areas of the facilities, the maintenance area, kitchen

5 ..area, and things of this nature.

6

I talked to several inmates while I was there. I

7 talked to several staff while I was there relative to

8 existing conditions, reviewed perimeter security, visited

9 the armory.

10

J spent roughly from 11 o'clock in the morning until

11 roughly 3;30, 4 o'clock in the afternoon, touring the

12 complete facility, and talking to various people.

13 Q

Did you have occasion to speak with any of the

14 inmates, also?

15 A

I did.

16 Q

During either the interview conducted during the

17 course of the audit, or your interviews conducted more

18 recently, did you gain any sense from the inmates of any

19 particular concerns they had at Glades Correctional?

20 A

^o, I did not. There wasn't any major concerns,

21 voiced by either staff or inmates. I found conditions to

22 be very much relaxed at the institution. Inmates conversed

23 openly, and without hesitation. There appeared to be a^

24 good staff inmate relationship existing. I found no majoj:

2 5 problems relative there at that time.

Pauline A. Stipes Official Federal Reporter

516

1 Q

Have you had occasion to view each of the dormitories

2 at Glades Correctional?

3 A

Yes.

4 Q

And are you familiar with the staffing arrangements

5 at Glades Correctional l the critical staffing levels which 6 are maintained?

7 A

I believe I am generally familiar with it, yes.

8 Q

And assuming that in the main compound at the

9 critical staffing levels for the second and third shifts,

10 the ones which will cover night hours include two staff

11 correctional members in the dormitory, and one roaming

12 guard for every two dormitories, one roaming sergeant for

13 every two dormitories, and one in the mid-day shift, inside

14 the dormitories, and again the roaming sergeant, and

15 considering the dormitory facilities in the main unit as

16 you are familiar with them, do you have an opinion as to

17 whether those facilities provide for adequate security for

18 ipmates?

19 A

I believe that their current staffing pattern which

20 requires two officers in a dormitory on an evening shi^ft

21 which requires one man in what they call the wicket, which

22 j.s the central area of the dormitory, and the other officer

23 patrolling, in addition to a sergeant of the correctional

24 force being assigned to two dormitory units which he

25 patrols on a regular basis during his shift would provide

Pauline A. Stipes Official Federal Reporter

1 adequate supervision for the inmates contained thereipT

2 Q

What about the staffing in the north compound which

3 varies according to the size they are, larger and smaller

4 units, two in the larger units, and one staff member in the

5 smaller units?

6 A

X think that is acceptable; ye,s. that is a medium

7 security area.

8 Q

And, again, in respect to the confinement area,

9 considering the layout of the confinement area, and its

10 location, and considering, for instance, the double bunking

11 procedures in protective confinement together with the

12 posted orders requiring the staff to patrol on a regular

13 b,a,sisf do you have an opinion as to whether the confinement 14 facility, protective confinement facility, in particular,

15 provides adequate safety for the inmates that are there?

16 A

I believe with the staff that they have assigned to

17 the confinement area, and with regular checks made on eacli

18 inmate with a half hour, or 30 minute schedule, I believe

19 1^hat provides adequate supervision for a confinement area,

20 yes.

21 Q

In the — In respect to the issue of contraband, have

22 you had occasion to review the disciplinary reports for the

23 prior year at Glades, that is, from December '88, through

2 4 December of 89?

25 A

Yes, I have.

Pauline A. Stipes Official Federal Reporter

518

1 II Q Have you also had occasion to review the special

2 search incident reports from January '86, through 1989?

3 A

Yes, I have.

4 Q

Do you have an opinion as to what those disciplinary

5 reports and incident reports, search incident reports,

6 reflect about either the level of contraband on the

7 compound, or the efforts and techniques used by the

8 administration to control the contraband on the compound?

9 A

Yes, I do. I believe that the institution has

10 exerted considerable effort in their attempts to control

11 the amount of contraband within the institution.

12

They do this by sporadic searches of various work

13 areas, living areas, the library areas, other areas

14 throughout the institution. The grounds, flour beds,

15 whatever have you in the institution.

16

The reports that I reviewed evidence that they do,

17 indeed, conduct the searches on a regular basis only at

18 irregular times so as not to advertise the particular

19 search that is going to be done.

20

While. I believe, it is probably impossible to

21 control 100 percent of the contraband in an institution.

22 that the Glades institution definitely is making alli 23 efforts to control as large a portion as they can, and keep

24 it to a minimum.

25 Q

During the time that you were a warden in a federal

Pauline A. Stipes Official Federal Reporter

519

~~I penitentiary, did you ever encounter problems of contraband "

2 being introduced, or generated within the compound by the

3 inmates?

4 A

Yes.

5

MR. LIPMAN: Objection, relevancy.

6

THE COURT: Objection overruled.

7

THE WITNESS: rYes, I have. Constantly. It is

8 a constant problem.

9 BY MR. DAVIS:

10 Q

And it has been indicated in the course of this trial

11 that on occasion, and I believe the reports, special search

12 reports may have indicated that on occasion quantities of

13 buck or inmate brewed vine of several gallons, or even up

14 to 20. or 30 more gallons is found on the compound.

15

Do you have any sense or experience as to how it is

16 possible for inmates to make or conceal quantities in tha.t

17 amount on the compound?

18 A

Yes. The making of a brew, so to speak, is a common

19 practice in the institution, about as long as institutions

20 have existed, and as I mentioned earlier, it is a constant

21 problem. The inmates are very ingenius in their ways of

22 producing this toxin brew, and I know on one occasion in

23 Atlanta, Atlanta Federal Penitentiary, in a dormitory

24 setting, in a hasamenh, the officer noticed something

25 highly unusual in the dormitory area, but was really unable

Pauline A. Stipes Official Federal Reporter

520

1 II to zero in what made him uncomfortable about it. He

2 couldn't figure out why it looked unusual to him, and he

3 discovered there were a number of support pillars down

4 there, a couple feet in diameter.

5 Q

You mean columns?

6 A

Columns supporting, and he discovered there was an

7 extra one there. On further investigation that it was

8 reaching from the floor to the ceiling, of course, and it

9 was completely full of brew. Containing roughly 50

10 gallons, as I remember.

11 Q

This was a false column that the inmates had

12 constructed?

13 A

Yes.

14 Q

Is that at all an uncommon situation to encounter?

15 A tyo. sir, very common.

16 Q

Are inmates able to do such things despite dilligence

17 on the part of the staff?

18 A

Yes, they can make brew in any amount, and they can

19 use practically — they don't necessarily have to have

20 yeast. Just any kind of fruit which they may purchase in

21 the commissary, or anything else can be used for

22 fermentation purpose to make this brew. I believe it is

23 referred to as buck in the Florida prison.

24 Q

Do you have an opinion whether the discovery and

25 .confiscation of weapons on the compound consisting

Pauline A. Stipes Official Federal Reporter

521 1 II primarily or exclusively of inmate homemade knives or 2 pipes, or other such items, but not guns, or externally 3 introduced items, whether the discovery, and confiscation

4 of 10 to 15 or 20 weapons a month is a excessively high

5 .number, or low number in an institution the size of Glades?

6 A

The number of weapons that are generally uncovered in

7 an institution largely depend on the security involved at

8 the institution, whether it is a maximum, close, or medium

9 facility, and being that Glades handles both close, medium.

10 and I believe minimum, 10 or 15 items a month being

11 uncovered in various hiding places would not be uncommon.

12 Q

You served at Marion?

13 A

Approximately 7 years, yes.

14 Q

And Marion is an institution with single cells?

15 A

Yes.

16 Q

Does it have a fairly loose, or fairly rigid

17 structure of inmate activities and conduct?

18 A

Maximum—

19

MR. LIPMAN: Objection to relevancy.

20

THE COURT: Well, objection overruled.

21 BY MR. DAVIS:

22 Q

Okay.

23 A

Maximum controlled institution,, yes.

24 Q

And what was your experience in finding homemade

25 knives and similar type weapons at such an institution as

Pauline A. Stipes Official Federal Reporter

T that?

2A

They have definitely existed at Marion. We had at

3 ^arion a metal furniture factory, which involved heavy duty

4 metal shears, and weapons were very easily produced at that

5 facility, and there were many of them found in the work

6 area. Once in awhile they were able to slip one out of the

7 work area.

8Q

Would you in the case of an institution such as

9 Glades Correctional and knowing what you know about Glades

10 Correctional based on your audit experience, your view more

11 recently, your review of the incident reports, and

12 disciplinary reports, would you in the event of an

13 institution such as that ever recommend such a thing as a

14 total shakedown of the institution for controlled

15 contraband?

16 A

Only under extreme circumstances, because a thorough

17 shakedown as you are referring to of the facility would

18 require a complete lock down of all of your inmates, and

19 expenditure of a large amount of overtime pay for

20 employees, and is very disruptive to the entire program qf

21 the institution.

22 Q

what is inm^fce reaction usually to a lock down

23 necessary to conduct an entire shakedown?

24 A

They resent it very much.

25 Q

Does it ever lead to inmate violence?

Pauline A. Stipes Official Federal Reporter

523

j ^

It does.

2 Q

Has it led to riots in institutions?

3 A

Yes, I believe it has. I know it has.

4

MR. DAVIS: If I could have a moment, Your

5 Honor?

6

THE COURT: How much more time do you think you

7 will need?

8

MR. DAVIS: For one question.

9

THE COURT: All right.

10 BY MR. DAVIS:

11 Q

Mr. Frey, have you ever given testimony as an expert

12 witness before?

13 A

Yes, I have.

14 Q

In the field of penalogy, or corrections?

15 A

Yes.

16 Q

And correctional administration?

17 A

Yes.

18

MR. DAVIS: Your Honor, we would offer him as

19 an expert witness in this case.

20

THE COURT: All right. I think he has met

21 basic qualifications, surely.

22

Let's take the morning recess. We will be in recess

23 for 15 minutes. You are excused, and be back in that

24 length of time.

25

(Thereupon, a short recess was taken.)

Pauline A. Stipes Official Federal Reporter

CROSS-EXAMINATION,

BY MR. LIPMAN:

3Q

Good morning, Mr. Frey?

4A

Good morning.

5Q

You had indicated that the February 1987, American

6 Correctional Association audit, leading to additional

7 accreditation was not the first audit that had occurred at

8 GCI, is that correct?

9A

That is correct, sir.

10 Q

And you are aware, are you not, that in fact GCI was

11 initially accredited in 1980?

12 A

I believe that is correct, yes.

13 Q

And, as a matter of fact, are you aware at the time

14 GCI, when it was accredited in 1980 was found to have the

15 second highest score in the state system. Are you aware of 16 that?

17 A

No, sir, I am not aware of that.

18 Q

Subsequent to the GCl's first accreditation in 1980,

19 it again went through an accreditation process in 1984, and

20 was accredited?

21 A

Yes.

22 Q

You are aware of that accreditation?

23 A

Yes.

24 Q

Are you also familiar with the findings that were

25 issued in this case both in January of 1986, as well as

Pauline A. Stipes Official Federal Reporter

June of the following year in 198~7?

2A

Generally aware of it, yes.

3Q

And would you agree those findings are relatively

4 specific in terms of dates, events, and occurrences that

5 are the topic of those decisions?

6A

I don't believe I understand your question, sir.

7Q

Would you agree with me the findings of January 1986

8 jn this case, as well as June 1987 are rather specifict—

9A

Relative to what, sir?

10 Q

Relative to inmate sexual assaults and rapes, anj

11 gther abuses that were determined to have occurred?

12 A

Findings, specific findings in the opinion, yes.,

13 Q

Yes. Now, you have been in the correctional

14 profession for almost 40 years?

15 A

That is correct.

16 Q

And I would assume that based upon findings that you

17 reviewed in those decisions, you would find them

18 unacceptable?

19 A

yes, sir. If all the findings were true, I would

20 find them unacceptable.

21 Q

You would find that the practices and conditions at

22 GCI are unacceptable, is that correct?

23 A

Yes.

24 Q

Sir, you would also agree with me the mere fact anr

25 institution is accredited by ACA, American Correctional

Pauline A. Stipes Official Federal Reporter

526

1 ^Association, doesn't necessarily mean that it is operating

2 in an acceptable manner?

3 A

At the time it is accredited, we believe it is

4 operating in an acceptable manner, yes.

5 Q

In 1984, ACA determined that Glades was operating in

6 an acceptable manner, and in 1987, it determined that it

7 was operating in an acceptable manner, correct?

8 A

I believe that is true.

9 Q

In January '86, June '87, this court found that the

10 institution was not functioning in an acceptable manner, is

11 that correct?

12 A

I believe that is true, yes.

13 Q

You had no personal involvement in the 1980 or 1984

14 audits, is that correct?

15 A

No, sir, I did not.

16 Q

And the charter or mission, if you will, of your

17 February 1987 audit did not involve addressing the findings

18 that had been made in the LaMarca case?

19 A

No, sir, they did not.

20 Q

In fact, you were aware of the LaMarca decision, but

21 never addressed the specific findings of this case, is that

22 correct?

23 A

I believe a copy of it was submitted along with the

24 report to the commission in Washington.

25 Q

Do you recall any discussion among your colleagues on

Pauline A. Stipes Official Federal Reporter

1 the committee, or any officials with the American

2 Correctional Association relative to the findings of the

3 LaMarca decision?

4 A

No, sir, I do not.

5 Q

J)id you ever have a single discussion with any

6 officials at GCI when you conducted your February 1987

7 ^audit as to the findings and practices found in the LaMarca

8 case?

9 A

No, sir.

10 Q

Am I to understand that the manner in which you

11 conducted the February 1987 audit of GCI provided advance

12 notice to the institution in terms of the officials, and

13 officers that an audit would take place?

14 A

Yes.

15 Q

A notice, some form of notice, would also, I believe

16 you indicated, be provided in the institution to the inmate

17 so that inmates might correspond with committee staff?

18 A

yes.

19 Q

And I think you indicated that no inmates availed

20 themselves to that process?

21 A

That is correct, sir.

22 Q

I think you also indicated that that isn't unusual,

23 is that so?

24 A

It is not unusual.

25 Q

Did the committee make any attempt to interview those

Pauline A. Stipes Official Federal Reporter

528 1 inmates identified throughout the LaMarca findings in order 2 to corroborate or gain knowledge as to their experiences?

3 A

No, sir, we did not.

4 Q

Do you recall ever discussing going about that

5 process with your colleagues on the committee?

6 A

No.

7 Q

Would it be fair to say that the findings in the

8 LaMarca case provided you with unusual detail as to

9 practices and conditions that were occurring at GCI?

10 A

%he ones that I just recently reviewed?

11 Q

Yes.

12 A

Yes, it was contrary to what we found^

13 Q

I understand that it was contrary to what you found.

14 My question is, it was atypical, unusual, that you would be

15 provided with such a wealth of information in terms of

16 names, dates, facts, and events in your course of

17 conducting an audit, is that a fair statement?

18 A

I am not sure I understand your question.

19 Q

Let me phrase it a different way. You indicated that

20 you conducted numerous audits in your career?

21 A

Yes.

22 Q

I think I understood that you indicated that you have

23 conducted in the area of 100 audits at institutions?

24 A

Yes.

25 Q

And in conducting those audits, you are furnished

Pauline A. Stipes Official Federal Reporter

529 "I certain information prior to arriving at the scene?

2 A

Yes.

3 Q

And my question is, the findings in LaMarca —

4 A

Was not furnished.

5 Q

Beg your pardon?

6 A

Those findings were not furnished.

7 Q

And so you conducted your audit without the benefit

8 of those findings?

9 A

That is true. If I may volunteer?

10 Q

Please?

11 A

If I remember correctly, and it was three years ago.

12 Q

Yes.

13 A

When we go into an institution to conduct an audit.

14 if there is a court ruling or a case pending concerning an

15 institution, we merely ask for copies of it, and send it

16 back to our commission in Washington, or Baltimore who

17 review it. We don't get into it.

18

If I remember the case at GCIf it was under appeal,

19 or something at the time, which it wasn't resolved.mor

20 anything, so, therefore, we did not take any definite

21 action with regard to the court action at that time.

22 Q

So, is it American Correctional Association policy

23 that notwithstanding a federal judge's findings, if a case

24 is under appeal, that those findings have no credence?

25 A

No, sir, I don't say that. It is just that the

Pauline A. Stipes Official Federal Reporter

530

1 auditor is not generally qualified to go into court 2 proceedings, and so forth.

3 Q

But you would agree that the particular findings in

4 LaMarca case do offer a great amount of detail in terms of

5 names, and dates, and incidences, and practices?

6 A Yes.

7 Q

And you in conducting the audit did attempt to secure

8 information from inmates, did you not?

9 A

Not referring to the LaMarca case?

10 Q

No, but you sent notices to the institution to be

11 placed, I assume, in the dormitories?

12 A Yes.

13 Q

And the purpose of posting those notices were to

14 provide notification to inmates who might wish to share

15 information?

16 A

That is correct.

17 Q

And I assume that in conducting the audit, in your

18 experience that you keep your eyes and ears open to inmate

19 concerns or issues that they raise with you?

20 A

JJLSr we do*

21 Q

Would you agree that is an important ingredient in

22 the audit process?

23 A

Keeping our eyes and ears open, yes.

24 Q

Keeping your eyes and ears open, trying to listen to

25 what the inmates complaints were?

Pauline A. Stipes Official Federal Reporter

~K

Yes, very definitely.

2Q

I think you indicated on your most recent tour when

3 you were accompanied by counsel for defendants that you

4 found the situation to be somewhat relaxed?

5A

Yes.

6Q

In terms of inmate, staff relationship?

7A

Yes, we did.

8Q

In a positive sense?

9A

Yes.

10 Q

The audit that had nothing to do — the audit that

11 occurred in February 1987 had nothing to do with the

12 conditions and practices found by this court in June 1987?

13 A

Not directly, no, sir.

14 Q

Now, you've itemized in your report which has been

15 introduced as Ex. No. 9 various areas of non-compliance?

16 A

Yes.

17 Q

Although they are not numbered, do you have the

18 report with you?

19 A

Yes, I do.

20 Q

Could you refer to the portion relating to the

21 confinement area which I believe is contained on — I

22 actually don't have the page numbers at the bottom.

23 A

Standard 4135.

24 Q

Yes, that may be page 3, just for the record,

25 fftandard 2-4135. You determined at least in February 1987

Pauline A. Stipes Official Federal Reporter

132

T that conditions in protective confinement were in
2 non-compliance?

3A

That is correct, sir.

4Q

I think more accurately conditions in the segregated

5 housing which would include protective confinement,

6 disciplinary confinement, and administrative confinement

7 were all in non-compliance?

8A

Yes.

9Q

And based upon your 40 years in corrections, would

10 .you agree that those conditions are unacceptable?

11 A

As far as ACA standards, yes.

12 Q

As far as some measuring stick, we use the ACA

13 standard.

14

Are you aware that the conditions of protective

15 confinement that you found in February of 1987 were not new

16 to Glades?

17 A

Yes.

18 Q

You were aware of that?

19 A

Yes.

20 Q

You were aware those same conditions existed in 1984?

21 A

Yes.

22 Q

And you are aware that in terms of the findings of

23 this court that the same conditions, i.e.. double bunking.

24 and protective confinement, and features of living

25 conditions were found unacceptable?

Pauline A. Stipes Official Federal Reporter

i33

T~t|

MR. DAVIS: jObjection, t h a t i s not t r u e . Tn~e~

2 court didn't find double bunking. They found bunking where

3 there were no beds is unacceptable.

4

MR. LIPMAN: I beg to differ. I think the

5 court's findings is explicit —

6

THE COURT: Are you talking about the Court's

7 finding in the order of June 4, 1987?

8

MR. LIPMAN: Yes, Your Honor, as relates to

9 Your Honor's review of the January 1986 decision.

10

THE COURT: Yes.

11

MR. LIPMAN: I believe the thrust and gist of

12 that portion of the order found that the multiple housing

13 of inmates in the protective confinement were unacceptable.

14

THE COURT: I will overrule the objection. I

15 have been sort of scanning that order. I haven't run

16 across that as yet. Just how that was treated, I don't

17 remember.

18 BY MR. LIPMAN:

19 Q

My point is simply what you found in 1987 was not

20 new?

21 A

That is true.

22 Q

And, Mr. Frey, you returned approximately two and a

23 half years later, last month, and you found similar

24 conditions?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

1 Q

Which do not meet ACA standards?

2 A

True.

3 Q

What is the rational, if you know, or policy behind

4 the ACA standard which frowns upon double bunking in

5 protective confinement?

6 A

I believe ACA people feel where there is only one

7 ^person to the cell, that leaves less chance for any assault

8 behavior, or anything of that nature.

9

While they don't — They realize that many of our

10 institutions are old facilities, and that they have an over

11 crowding problem, they find it acceptable in that they

12 won't deny the accreditation. It is not that serious.

13

They make it a^mandatory standard, but they do make

14 it a standard that the institution should try to comply

15 with in the future.

16 Q

Do you agree with that portion of the ACA standard

17 relating to protective confinement?

18 A ^1 believe it would be a much better situation if

19 there were one man per cell, yes.

20 Q

Now, there were other areas of protective confinement

21 beyond the housing of multiple inmates that were found to

22 be unacceptable, is that correct? Aside from the double

23 bunking issue?

24 A
25 Q

YJ&S.
And one of those areas found to be unacceptable would

Pauline A. Stipes Official Federal Reporter

535

1 be in the area of lighting?

2 A

xa&.

3 Q

Now, j^n the report that you authored in February,

4 1987, you've indicated in terms of those features of

5 protective confinement that didn't conform to the standard

6 to include double celling, poor lighting, and you have

7 etc.. po you know what you meant by etc.?

8 A

One of the items was a lack of a desk, and/or writing

9 table, or shelf.

10 Q

All right. Are you able to offer any opinion to His

11 .Honor as to whether ventilation presently exists in

12 protective confinement comports with ACA standard^?

13 A

A recent report that I reviewed prior to this period,r

14 or trial here today, indicated, I believe the Inspector

15 .General's Office had conducted an inspection of the unit,

16 and used light meters, and meters to measure the flow of

17 air, and found them to be in excess of the amount required< 18 in the various standards.

19

MR. LIPMAN: Your Honor, might I have number 8?

20

THE COURT: I don't have any up here.

21

MR. LIPMAN: I see, they are all organized for

22 us.

23 BY MR. LIPMAN:

24 Q

For the record, Mr. Frey, I am going to refer you to

25 Plaintiffs' Ex. 8. The copy is a little light. If you

Pauline A. Stipes Official Federal Reporter

336

1 have trouble reading it, I will be happy to share mine with

2 you. It might be easier to take my copy. This is Exhibit

3 8 I am referring you to.

4

For the record, interrogatory, they are not page

5 numbered, 5DII. Could you review the question and answer

6 contained in this exhibit?

7 A

You want me to read it?

8 Q

Yes, please?

9 A

Out loud?

10 Q

Yes.

11 A

"Was protective custody provided post rape, and if

12 protective custody was provided to several of the inmates

13 who made allegations of sexual rapes following their 1 4 reporting the matter, see below, was it provided, see

15 below, how many days was it provided?"

16 Q

And then there are a list of inmates which are the

17 responses of the defendants which provide the names of

18 inmates who sought protective custody for alleged or real

19 assaults, and rapes with an indication of the duration of

20 time that they remained in protective confinement?

21 A

Yes.

22 Q

And .1 sat last evening and calculated that the

23 ^average stay in protective confinement was approximately 59

24 days, if you added up all the time period?

25 A

Yes, I note that there were two of them that was

Pauline A. Stipes Official Federal Reporter

537

1 excessively long.

2 Q

What were the two excessively long?

3 A

James Mickie, four months, and two days, and Eduardo

4 'Austa, six months, and 19 days.

5 Q

How many others were over a 30 day period?

6 A

I believe it to be ^three.

7 Q

Three additional?

8 A

Yes.

9 Q

Besides the two that you have just indicated?

10 A

Yes.

11 Q

And the American Correctional Association Standards,

12 if I understood correctly, provide for at least a single

13 offense, an inmate ought not be held in confinement for

14 more than 30 days. Did I understand that?

15 A

JhJs is n Q t correct. We are talking about man in

16 protective custody is not there because of a disciplinary

17 report, and there is really know sanction handed down.

18 Q

I am mixing apples and oranges?

19 A

He is there for what the reason states, protective

20 custody. 1 not for punishment for creating a violation in

21 the compound.

22 Q

Let me ask you this: A man who violates a prison

23 institutional rule is adjudicated for an infraction?

24 A

That is true.

25 Q

Is sent to disciplinary confinement?

Pauline A. Stipes Official Federal Reporter

538

T A

Correct.

2 Q

And the ACA Standards are that one shouldn't be

3 incarcerated in disciplinary confinement for a sentence

4 exceeding 30 days?

5 A

That is correct.

6 Q

All right. If the gentleman's whose name is provided

7 in the interrogatory who did nothing wrong, voluntarily

8 requested to be placed in protective confinement, in at

9 least five instances remained in protective confinement for

10 a period of time that exceeded the 30 days, correct?

11 A

This is what the report says, yes.

12 Q

All right. Would you agree that at least those five

13 individuals, that officials at Glades would have an ample

14 period of time if they choose to provide psychiatric or

15 psychological services to those inmates?

16 A

.The standard requires that anybody in confinement

17 ^status over 30 days will receive a visit from a mentaj.

18 health person and a report be prepared at that time.

19 Q

Have you discussed any matters regarding this case

20 with Dr. Medina, the Glades psychologist?

21 A

No, sir, I have not.

22 Q

Are you aware of his activity in treating or not

23 treating inmates who have indicated that they have been

24 sexually assaulted or raped?

25 A

No.

Pauline A. Stipes Official Federal Reporter

>39

1 Q

In your view, would inmates who are housed in

2 protective confinement because of a concern or actual

3 physical assault or sexual assault and had remained in

4 protective confinement for any time more than five days

5 with the institution, or should the institution have

6 sufficient time to transfer the inmate?

7 A

In five days?

8 Q

Yes.

9 A

Depends on how long their investigation would take to

10 determine the reason for the man being in protective

11 custody. Ordinarily, they should have the answer in five

12 days.

13 Q

You have no knowledge as to whether any efforts were

14 made to transfer the individuals that were —

15 A

No, sir, I do not.

16 Q

We do know based on this information, if it is

17 accurate, they weren't transferred at least for the period

18 of time they remained in protective custody?

19 A

That is true. We don't know the reasons they weren't

20 kept there, though.

21 Q

In the course of your February 1987 audit you were

22 also concerned with staff correction officers monitoring

23 the open dormitories?

24 A

Yes, we were.

25 Q

And you would agree with me, would you not, that in

Pauline A. Stipes Official Federal Reporter

I~ the context of an institution such as Glades where there

2 are open dormitories that continual monitoring of the

3 dormitories is a critical practice of the correction

4 officials?

5 A

It should be, yes.

6 Q

Are you aware of the findings, at least through June

7 of 1987, as to whether or not officers had, in fact,

8 patrolled the dormitories?

9 A

I am aware—

10

MR. DAVIS: Excuse me, Your Honor, counsel uses

11 the term June '87. The report he speaks of, or the order

12 he speaks of is as 1984. Does not talk about conditions

13 subsequent to '86. This Court's order does not address

14 conditions subsequent to 1984.

15

THE COURT: I think that is true.

16

MR. LIPMAN: Yes, but I need a temporal period

17 of time in which those conditions are determined by some

18 authority, and in this case they were determined by His

19 Honor to exist as of that date referring back to evidence

20 occurring before 1986.

21

THE COURT: All right. Just make that plain in

22 your question, if you please.

23 BY MR. LIPMAN:

24 Q

You understand the temporal problem. Findings were

25 made on X-day, June, '87, they related to evidence that was

Pauline A. Stipes Official Federal Reporter

1 presented in Fall '85.

2 A 3 Q

Yes. Through December '85, at least, and you are aware of

4 those findings?

5 A

Generally aware of them, yes.

6 Q

You have no personal knowledge other than your

7 conversations with officials, and your review of the

8 posting of orders as to whether or not on a regular basis

9 officers at Glades patrolled those dormitories?

10 A

In our review of the dormitory logs, our review of

11 the staff, their knowledge of their posted orders, so.

12 ^forth, indicated to us that they did their assigned duties.

13 Q

And that is the basis of that opinion?

14 A

Yes.

15 Q

All right. In other words, you didn't witness — you

16 didn't spend evenings at Glades in the dormitory

17 witnessing?

18 A

Yes, we did.

19 Q

And you were present?

20 A

Yes.

21 Q ..And they patrolled the dorms while you were present?

22 A

Yes, they sure did,.

23 Q

fhpy wprq awars yon were present?

24 A

yes,, they were.

25 Q

And they were aware you would be coming?

Pauline A. Stipes Official Federal Reporter

542

j ^

Probably.

2 Q

Any doubt about that? That the institution staff

3 were aware you would be conducting an audit in February,

4 1987?

5 A

None whatsoever.

6 Q

All right. You have been a warden in institutions,

7 head of the institution? I am not sure if it is warden.

8 A

Warden.

9 Q

In the federal system?

10 A

Yes.

11 Q

Let me ask you this: If there were authoritative

12 finding, sir, that there existed a pattern of rapes and

13 physical assaults in terms of names, dates, and incidents,

14 determined, would you take some action to attempt to

15 initiate steps to insure that the physical assaults and

16 rapes.no longer occut;?

17 A

If. in my review of the findings, indicated that they

18 were valid, I would then definitely take steps to prohibit

19 such happening in the future,.

20 Q

And in attempting to discern whether the findings

21 were valid, if they were issued by a law enforcement

22 agency, would you consider that to be authoritative, and

23 therefore the findings valid?

24 A

It would certainly be worth review.

25 Q

If they were issued by federal judge, would that lend

Pauline A. Stipes Official Federal Reporter

543

some credence to the validity of those charges?

2A

Very definitely.

3Q

What specific steps would you take as a prudent

4 administrator to insure that the pattern of rapes and

5 assaults no longer continue?

6A

I believe it would require a review of the complete

7 program in the areas where the rapes allegedly occurred,

8 and that institutional supervisors would be alerted to

9 brief their personnel on the urgency to improve

10 surveillance and review post orders, and make sure that the

11 supervisors were checking on the custodial officers on

12 their individual post to see that their post orders were

13 being carried out. And, of course, anything else that

14 would present itself.

15 Q

Are you aware of any actions that Mr. Lambdin took

16 subsequent to the findings of this court as they related to

17 the pattern of rapes, and physical assaults that were

18 found?

19

No, I am

20

MR. LIPMAN: No further questions,

21

THE COURT: Redirect.

22

MR. DAVIS: Yes, Your Honor

23

REDIRECT EXAMINATION

24 BY MR. DAVIS:

25

In respect to the last question that counsel asked

Pauline A. Stipes Official Federal Reporter

1 you about if you were aware of anything that Mr. Lambdin

2 did in response to the order of the court, let me ask you,

3 if one of the findings of the court was that double bunking

4 in the middle of the dormitories in the main compound was

5 not acceptable to the court, did you find on your review in

6 1987 whether that double bunking condition existed or not?

7 Talking about dormitories A,B,C,D, were the bunks in the

8 middle?

9 A

You mentioned double bunking. There was multiple

10 bunking.

11 Q

Right. Did you find — Let me ask you to assume that

12 the finding of the court was that in 1984, in dormitories

13 ,A,B,C,D there were upper and lower bunks for all beds in

14 dormitories AfB,C,D.

15 A

All right.

16 Q

And the court found that was not an acceptable

17 condition to the court. Did you find that the upper and

18 lower bunking situation existed in A,B,C,D in the middle

19 area?

20 A

No. The second, double bunking had been removed to

21 improve visibility from the center of the dormitory to the

22 ends of each dormitory where the shower areas were located.

23 Q

In the 1984 accreditation report, I think you

24 indicated that there had been non-compliance found with

2 5 staff training?

Pauline A. Stipes Official Federal Reporter

545

1 II A

That is correct, sir.

2 Q

In 1987, did you find whether there was compliance

3 with staff training?

4 A

All training was_up to par in February, 1987.

5 Q

And I think you also indicated there were several

6 other areas of non-compliance that had also achieved

7 compliance by the time of the 1987 aurijt?

8 A

Yes.

9 Q

You were asked what you would do if you were warden,

10 and you were presented with certain findings of a court

11 that certain conditions existed at an institution, what you

12 would do to rectify that?

13 A

Yes.

14 Q

If you as a warden were presented as an order of the

15 court saying that during a certain period of time there

16 were no criminal investigations performed for alleged

17 sexual rapes, and that outside law enforcement agencies

18 were not involved, and you then investigated that

19 situation, and found indeed the true facts were that there

20 had been substantial investigation by outside law

21 enforcement agencies as evidenced in the records of bo^h

22 law enforcement agencies and the institution, would ypu,

23 then blindly accept the finding of the court being true for

24 the purpose?

25 A

Probably not.

Pauline A. Stipes Official Federal Reporter

£46

1 Q

Okay, thank you.

2

Now, the discussion about the limitation of 30 days

3 confinement and disciplinary confinement related, did that

4 relate to 30 days maximum that an inmate could be held in

5 disciplinary confinement, or was it 30 days on each charge?

6 A

On each individual charge, yes.

7 Q

Does —

8 A

Relating to one incident.

9 Q

Does the ACA have any limitation on the number of

10 days that an inmate can spend in disciplinary confinement

11 on multiple charges for multiple incidents?

12 A

Only the 30-day rule on each incident or incidents

13 relating to that one incident•

14 Q

So it is completely acceptable to the ACA if there is

15 incarceration for more than 30 days so long as it is for

16 multiple incidents?

17 A

That is correct.

18 Q

You were asked about the ACA requirement that an

19 inmate receive — inmate in protective confinement after

20 the 30 day period receive psychological counseling, is that

21 correct?

22 A

Yes.

23 Q fret me ask you to assume that the testimony of Mr.

24 ^ane. the staff psychologist, acting psychologist was that

25 on every Thursday and Friday of each week, a psychology

Pauline A. Stipes Official Federal Reporter

547

I~~f| department counselor visited confinement for the purpose of

2 checking the records to determine those held for more than

3 30 days, and that the counselor then counseled with and> 4 interviewed those inmates that were there for more than 3^0

5 days, plus made himself available to any inmates in ,

6 protective confinement, would that meet the requirements of

7 frhe American Correction Association?

8 A

I believe that it would.

9 Q

Thank you. In regard to the double bunking, and your

10 experience in the federal system, is double bunking ojE

11 protective confinement areas prevalent in the federal

12 system?

13 A

|t is in the older facilities, yes.

14 Q

About how many federal prisons use double bunking in

15 confinement?

16

MR. LIPMAN: Objection, relevancy.

17

THE COURT: Objection overruled.

18

THE WITNESS: Probably 25.

19 BY MR. DAVIS:

20 Q

What is the ACA requirement for lighting in a

21 confinement cell?

22 A

I would have to guess without having the actual

23 standard before me, but I think it is 20 candle power per

24 cubic foot, I believe.

25 Q

The standard is 20 candle power for a certain given

Pauline A. Stipes Official Federal Reporter

area?

A

Yes.

3Q

Okay. In respect to the transfer of inmates who are

4 in protective confinement, does the ACA have a standard^

5 requiring transfer of inmates from protective confinement^

6 to another institution within a certain period of time?

7A

No. They recommend that it be moved as early as.

8 possible when it is determined that he cannot return safeJL,v

9 to the inmate population.

10 Q

Okay. And does that determination of when he can

11 safely return to the inmate population depend in large

12 measure upon the inmate himself, and what he relates to the

13 staff?

14 A

That, and the investigation relating to the

15 particular reasons for his being there.

16 Q

Do you have any information regarding the transfer

17 procedures within the Florida Prison System from one

18 institution to another?

19 A

Not directly, no, sir.

20

MR. DAVIS: Your Honor, I have no further

21 questions.

22

THE COURT: All right. Thank you. Thank you,

23 Mr. Frey, you may step down.

24

(Thereupon, the witness was excused.)

25

MR. DAVIS: Your Honor, our next witness is

Pauline A. Stipes Official Federal Reporter

149

1 going to be a long witness. I wonder if it would be better

2 if we took the recess.

3

THE COURT: We can stop a little early for

4 lunch here. we have another matter between 1 and l;30 to

5 hear. We will be in recess until 1:30. You have another

6 expert.

7

MR. DAVIS: We have another expert, Mr.

8 Lambdin, Mr. Peters, I think we have two other witnesses

9 whose names I don't recall, one is a staff member, and one

10 is a prisoner.

11

THE COURT: You still have quite a bit to go?

12

MR. DAVIS: Not really, most of those are going

13 to be short. I don't anticipate any except Mr. Lambdin,

14 and the expert to take over half an hour.

15

THE COURT: We will be in recess until 1:30.

16 Please make room on the table for other lawyers who will be

17 in here between 1 and 1:30.

18

We will get started 1:30, and try to do the best you

19 can to get all of your evidence in before the end of the

20 day at 5 o'clock. We have a calendar call 9 o'clock in the

21 morning which will take a half hour, or hour as well.

22

(Thereupon, a recess was taken 11:45 a.m.)

23

(Court reconvened 1:30 p.M.)

24

25

Pauline A. Stipes Official Federal Reporter

50

1

LEON ALEXANDER PETERS, DEFENSE WITNESS SWORN

2

DIRECT EXAMINATION

3 BY MR. MEGINNISS:

4Q
5

Mr. Peters, where do you currently reside? THE COURT: Let us have your full name, first.

6

THE WITNESS: Leon Alexander Peters.

7

THE COURT: Go ahead.

8

MR. MEGINNISS: May it please the court, I

9 apologize.

10

THE COURT: All right.

11 BY MR. MEGINNISS:

Tr

12 Q

Where do you currently reside?

13 A

West Virqinia.

14 Q

Have you ever been employed in the Department of

15 Corrections of the State of Florida?

16 A

Yes, I have.

17 Q 18 A

And where were you so employed? Glades Correctional Institutional, Belle Glade.

19 Q

What position did you hold?

1

20 A

I was internal investiqator.

3

1

21 Q

Were vou internal investiqator in January '86?

22 A

Yes, I was.

23 Q 24 A

Are you currently the internal investigator? No, sir, I am not.

25 Q

When did you cease beinq the internal inspector?

Pauline A. Stipes Official Federal Reporter

151

1 A

I retired from the Department of Corrections in May

2 j.989.

3 Q

Now, please describe to me your procedures for

4 internal inspections with respect to alleged assaults or

5 sexual assaults?

6 A

Upon receiving the information that an alleged

7 assault, or alleged sexual assault occurred, my first step

8 yas to interview the individual who made the allegation.

9

During the interview, J would try to determine the

10 names and identity of any alleged perpetrator or

11 perpetrators. In the event I was able to elicit the name

12 of alleged perpetrator, or perpetrators, I proceeded to

13 interview that individual, or individuals. And during the

14 interview with the alleged perpetrator, or perpetrators, I

15 attempted to elicit a confession or denial. If I was able

16 to elicit a confession, I immediately forwarded my

17 information to the superintendent.

18

Also, if I was not able to elicit a confession, and,

19 got a denial, then I also immediately took the information

20 t° the RiipprinhPnHpn)-,—and hp di rpri-pH me how to proceed

21 further.

22 Q

Was there ever an occasion — Strike that. H assume

23 when you say superintendent, you are speaking of Chester

24 Lambdin who is present in the courtroom?

25 A

Y-§s/ Chester Lambdin.

Pauline A. Stipes Official Federal Reporter

i52

~Q Was there ever occasion where any assault or sexual 2 assault was reported to you that you did not so inform the

3 superintendent?

4 A tyo. sir.

5 Q

And that was uniform throughout your service under

6 him?

7 A

Yes.

8 Q

And was he the superintendent the whole time from '86

9 on?

10 A

I believe he was. I don't recall when Mr. Lambdin

11 assumed the position of superintendent.

12 Q

All right. You say you sent your reports, or you

13 made your reports to Mr. Lambdin, then what happened?

14 A

Mr. Lambdin would make a determination as to whether

15 pr not we should involve a law enforcement agency, or

16 whether we should file directly with the State Attorney's

17 Office.

18 Q

And depending — Strike that.

19

This determination—would that have any effect upon a

20 report that you would write?

21 A

Yes, I believe it would, I would indicate in my

22 report what Mr. Lambdin's decision had been.

23 Q

By the time this decision, or when this decision was

24 made, were your reports necessarily written at that time?

25 A

No, £ did not write my reports until I had discussed

Pauline A. Stipes Official Federal Reporter

i53

1 the situation, or made Mr. Lambdin aware of the situation,

2 and circumstances surrounding the alleged incident.

3 Q

What was the source of your information with respect

4 to assault or alleged sexual assault?

5 A

jnfnrmai-ipn m u ^ d come from the alleged victim. It

6 qould come from staff members. It could come from other 7 \.nmates i n population. It could come from family members.

8 Q

Did you ever work in an investigation with the,

9 Sheriff's Department?

10 A

Yes, I did.

11 Q

Did you work with the Sheriff's Department in every

12 case.?

13 A

No, sir.

14 Q

Why is that?

15 A

Because it had been — }f Mr. Lambdin made a decision

16 that we were to file directly with the State Attorney'^

17 Office, then the Sheriff's Department was not involved..

18 Q

Otherwise, you would probably send it to the Sheriff

19 for investigation?

20 A

I would first make verbal contact with the Sheriff's,

21 Department, and advise of the situation, and when I

22 completed my investigative report;, they would get a copy qf

23 ^he report.

24 Q

All right, sir. I want to show you that which

25 appears to be investigative reports which the defendants

Pauline A. Stipes Official Federal Reporter

£54

1 have marked as Ex. %~, and ask you if you recognize these

2 reports?

3 A

Yes, I do, sir.

4 Q

And is that the type of report that you forwarded

5 after you consulted with Mr. Lambdin?

6 A

Yes, it is, sir.

7 Q

Are there any Sheriff's reports in there?

8 A

Give me a moment. I didn't go through them that

9 carefully.

10

MR. AMLONG: Do you have a copy of that?

11

MR. MEGINNISS: Yes, I do.

12

THE COURT: What he is talking about? What I

13 am looking at now is Plaintiffs' No. 4.

14

MR. MEGINNISS: Yes.

15

THE WITNESS: Yes, there is a copy of the

16 Sheriff's—

17

MR. AMLONG: Is this Defendant's 4, or

18 Plaintiffs' 4?

19

MR. MEGINNISS: Defendant's 4.

20

THE COURT: Defendant's 4. I don't have a

21 Defendant's 4 marked down here. Has it been utilized

22 before?

23

MR. MEGINNISS: No, sir, I am trying to

24 identify through this witness, Your Honor, in order to be

25 proffered for evidence, and introduced into evidence.

Pauline A. Stipes Official Federal Reporter

J55

Tl

THE COURT: All right.

2 BY MR. MEGINNISS:

3 Q

This would be the representative of the investigative

4 reports that you kept in your files while you were internal

5 investigator?

6 A

Yes.

7

MR. MEGINNISS: I offer into evidence

8 Defendant's No. 4. which represents reports of the internal

9 investigator from Glades Correctional Institutional

10 pertaining to alleged sexual assaults.

11

MR. AMLONG: I object to internal hearsay, and

12 also the conclusions made by the report. Under the Piper

13 Aircraft case, I don't believe the conclusions of the

14 reports are admissible.

15

MR. MEGINNISS: Be that as it may, this is a

16 business record. It is used to show that rapes were made

17 by the internal investigator. The determination is not

18 made for the purpose of the truth, but to indicate solely

19 that the people out there were aware of these alleged

20 rapes, and they did something about it.

21

MR. AMLONG: I do not object to this being

22 introduced as a business record. I have not objected to it

23 being introduced to show that the investigation reflected

24 in these reports took place. I object only to the internal

25 jiearsay for the truth of the matter asserted, and to the

Pauline A. Stipes Official Federal Reporter

556

conclusions, if any.

2

THE COURT: All right. I will receive it,

3 because you don't object to it totally, with the

4 qualification that will not be guided by the internal

5 hearsay, if we could determine what that is by reading the

6 Reports, nor by the conclusions, and counsel, of course, is

7 not offering them for the truth of those matters, anyway.

8 I don't think we are in any trouble.

9

MR. AMLONG: Thank you, Your Honor.

10

(Defendant's Ex. 4 received into evidence.)

11

THE COURT: What time period, does this document

12 cover?

13

MR. MEGINNISS: January 1986 to the present,

14 Your Honor.

15

You may inquire.

16

MR. AMLONG: Your Honor, may I have a moment?

17 I have never been given this before. If I may have a

18 moment to look through it.

19

THE COURT: Okay, go ahead.

20

CROSS-EXAMINATION

21 BY MR. AMLONG:

22 Q

Good afternoon, Lt. Peters?

23 A

Good afternoon, sir.

24 Q

During the time that you were the institutional

25 inspector at Glades Correctional Institution, was there a

Pauline A. Stipes Official Federal Reporter

557

1 II standard operating procedure that provided that the

2 compound officers should pass along to you allegations of

3 homosexual rape?

4 A

You mean was there written documentation?

5 Q

Well, was there in a posted order— Was there any

6 rule promulgated that said Correction Officer Smith, if you

7 hear about the homosexual rape, you are supposed to go to

8 Lt. Peters?

9 A

Not to my knowledge.

10 Q

And that was the same — that continued from before

11 the last trial up until you left, correct?

12 A

We are speaking about the initial Turner case?

13 Q

Yes.

14 A

j^s far as I know, yes.

15 Q

That didn't change?

16 A

Not to my knowledge.

17 Q

Tell Judge Paine what did change about the way you

18 ndid vour job from Turner rasB,— from LaMarca versus 19 Turner, up until the time you left and went in retirement?

20 A

Basically, I don't feel that there was that much

21 significant change. I think the procedure was standard,

22 .throughout.

23 Q

Now, you talked about how if you got a confession

24 from the perpetrator or perpetrators of the rape, you would

25 forward that confession to the superintendent?

Pauline A. Stipes Official Federal Reporter

158

1 A

Maybe you misunderstood what I was saying, Mr.

2 Amlong. What I meant was, all the information I gathered

3 in speaking with the alleged victim, and the alleged —

4 and/or alleged perpetrator, perpetrators immediately went

5 to the superintendent so he could make a decision

6 immediately as to which way to proceed.

7 Q

You did say after you talked to the victim, you

8 talked to the people who were the perpetrators to determine

9 who they were?

10 A

In the event I had an identity.

11 Q

Okay. And then you told the judge that if you

12 obtained a confession that you would immediately forward

13 that confession to Superintendent Lambdin?

14 A

Yes.

15 Q

How much such confessions did you forward to ,

16 Superintendent Lambdin during the time you were at GCI?

17 A

I don't know.

18 Q

Any?

19 A

There may have been some. I couldn't give you a

20 specific number.

21 Q

Do you have any specific recollection of ever

22 forwarding to Superintendent Lambdin information that^ a

23 person had confessed to committing a homosexual rape?

24 A

No, I don't think so.

25 Q

All right. Now, you testified that after reviewing

Pauline A. Stipes Official Federal Reporter

1 the results of your investigation with Mr. Lambdin that Mr.

2 Lambdin would then make the decision whether or not to

3 involve a law enforcement agency or to file directly with

4 the State Attorney's Office in the case, correct?

5 A

Yes.

6 Q

We are talking about the rape cases now?

7 A

Yes.

8 Q

And you are a law enforcement officer?

9 A

No, sir.

10 Q

You were?

11 A

^No, sir.

12 Q

You were then?

13 A

No, sir.

14 Q

Did you have authority to file cases with the State

15 Attorney's Office?

16 A

Yes, per rules of the Department of Correction.

17 Q

Okay. Did you ever directly file a case with the

18 State Attorney's Office involving a homosexual rape

19 subsequent to the first trial?

20 A

I am not sure I understand your question.

21 Q

jfrom January 1st, 1986, until you retired in May

22 1989, was there ever a rape case filed by you directly with

23 the State Attorney's Office in Palm Beach County?

24 A

No, sir.

25 Q

Do you remember the case of Mr. Haveard who said he

Pauline A. Stipes Official Federal Reporter

T had been raped by a fellow named Golden or Goldie?

2

MR. MEGINNISS: May it please the court, I

3 would rise to voice an objection in that the only purpose
4 we provided these reports, we did not ask him to take the

5 truth thereof, but if plaintiffs' counsel would want to go

6 into them, we would move them all in evidence.

7

THE COURT: Are you referring to some report

8 now?

9

MR. AMLONG: No.

10

THE COURT: This question doesn't indicate that

11 he is referring to a report.

12

MR. MEGINNISS: He just asked about Mr.

13 Haveard.

14

THE COURT: That is what he did, but he didn't

15 refer to any report. I really don't understand the

16 objection.

17

MR. MEGINNISS: If he is going into the report

18 one by one, I would move for their admission.

19

THE COURT: Are you talking about the reports

20 included in Defendant's No. 4?

21

MR. MEGINNISS: Yes.

22

MR. AMLONG: Frankly, I was looking for the

23 Haveard report, and I didn't find it. I was proceeding

24 without it.

25

THE COURT: Well, I have to overrule the

Pauline A. Stipes Official Federal Reporter

1 objection. I don't know that there is going to be any

2 reason why he can't utilize these reports to ask questions

3 of Mr. Peters about it about these various things. I will

4 overrule the objection. Go ahead.

5 BY MR. AMLONG:

6 Q

Mr. Peters, do you recall the alleged assault by

7 Goldie or Golden on Mr. Haveard?

8 A

Yes, to some extent, but I have been away from that

9 area for 7 months or so, and I may need some documentation

10 to refresh my memory.

11 Q

Do you recall whether or not you ever showed Mr.

12 Haveard a photo lineup?

13 A

No. I didn't.,

14 Q

Do you recall whether or not Goldie's nickname came

15 from the fact he had a gold tooth?

16 A

N o , s i r , I don't.

17 Q

During the time period from January 1st, 1986,

18 through your retirement, did you ever confirm that a

19 homosexual rape had taken place at Glades Correctional

20 Institution?

21 A

I don't think.so.

22 Q

How many years did you work at Glades Correctional

23 Institution?

24 A

I came there in 1978, approximately 10 years, 11

25 years.

Pauline A. Stipes Official Federal Reporter

£62

T~ ~~Q During that entire period, did you ever confirm a

2 homosexual rape had ever taken place at Glades Correctional

3 Institution?

4 A

I wasn't the internal inspector for the whole time I

5 was there.

6 Q

During the time you were internal inspector, did you

7 confirm homosexual rape had taken place?

8 A

No, sir.

9 Q

The methods that you used prior to January 1st, 1986

10 are the same methods that you continued to use subsequent

11 to January 3, 1986?

12 A

To the best of my knowledge, yes.

13

MR. AMLONG: No further questions, Your Honor.

14

REDIRECT EXAMINATION

15 BY MR. MEGINNISS:

16 Q

With respect to the last few questions that were

17 asked you, flo you recall the case of Willie Bogen?

18 A

Yes, sir, I do now.

19 Q

Wasn't that a confirmed rape?

20 A 21 Q

Yesf you are right. And with respect to the question that you were asked

22 about Goldie, were you able even to identify who Goldie

23 was?

24 A

No, sir, I wasn't.

25 Q

Did Mr. Haveard identify him for you?

Pauline A. Stipes Official Federal Reporter

563

1 || A

No, sir, he didn't.

2 Q

So you didn't have a way to get a picture, did you?

3 A

No, sir, I didn't.

4 Q

Do you know whether or not any conviction was

5 obtained with respect to Willie Bogen?

6 A

yes, it was.

7

MR. AMLONG: Objection, relevance, unless he

8 specifies a time period.

9

THE COURT: The question is whether or not —

10

MR. MEGINNISS: Conviction was obtained with

11 respect to Willie Bogen, and I refresh this witness' memory

12 to a question, was there ever a rape that was prosecuted

13 and convicted, and having reminded him of Willie Bogen, and

14 he said yes.

15

THE COURT: Okay, I would overrule the

16 objection.

17

MR. MEGINNISS: I would like to move all of the

18 investigative reports since he brought it into evidence,,

19 during the Turner period.

20

THE COURT: What period is this?

21

MR. MEGINNISS: Prior to 1986, Willie Bogen was.

22 convicted prior to that time.

23

THE COURT: You have an exhibit number for

24 those?

25

MR. MEGINNISS: I think we have a list of them,

Pauline A. Stipes Official Federal Reporter

£64

1 and we can supply them. We tried to enter them, or asked

2 the court to present them by motion at the first day of

3 this hearing. We listed all of those, and we could supply

4- them.

5

MR. DAVIS: They are part of our motion which

6 we filed with you for leave to consider additional

7 evidence, in view of the fact counsel asked — M r . Amlong

8 just asked the witness whether he ever in his 11 years as

9 an investigator including Turner period conducted

10 investigation that resulted in a finding of rape. That is

11 now put into issue in this case, investigation is done

12 during Turner period, and we move for the right to

13 introduce all of the investigative reports during the

14 Turner period.

15

THE COURT: What is your position?

16

MR. AMLONG: The question was asked to

17 demonstrate that there had been no change whatsoever under

18 the investigative techniques for the investigative results,

19 for the Court's earlier findings. It does not make

20 relevant to this hearing the issues which are whether or

21 not the unconstitutional conditions the judge found through

22 Judge Nimkoff, and then through Your Honor affirming him in

23 '87. The prior rape investigation reports do not bear on

24 whether those conditions continue to exist. They simply

25 are not relevant.

Pauline A. Stipes Official Federal Reporter

565

TlR. DAVIS: Your Honor, it appears—

2

MR. AMLONG: I am being double teemed, too.

3

THE COURT: Well, you are doing all right.

4 Don't worry about it.

5

MR. DAVIS: Counsel has suggested that there is

6 some problem with the manner in which the investigations

7 have continued or not continued to be carried out since the

8 Turner period.

9

What is relevant is, as the witness has indicated,

10 how these investigations were carried out. He is asking

11 specifically in this hearing whether he conducted any

12 investigations during the Turner period which made findings 13 regarding homosexual rape. The witness should be able to 14 establish whether he had any such investigation by having 15 the investigations available to him to present to the

16 court.

17

THE COURT: Well, I am not going to get back

18 into that. I am not going to permit any change in those

19 rulings that have been previously made. I am not going to

20 reopen it for additional evidence.

21

With that ruling, let's go on.

22

MR. AMLONG: Thank you.

23

MR. MEGINNISS: No further questions, Your

24 Honor.

25

THE COURT: You are excused.

Pauline A. Stipes Official Federal Reporter

1

(Thereupon, the witness was excused.)

2

DANIEL LOCKWOOD, DEFENSE WITNESS SWORN

3

THE COURT: Please state your name.

4

THE WITNESS: Daniel Lockwood.

5

THE COURT: Proceed.

6

DIRECT EXAMINATION

7 BY MR. DAVIS:

8 Q

Mr. Lockwood, where do you reside?

9 A

| live in Sprakers. New York.

10 Q

And what is your occupation or profession?

11 A

jT am currently Associate Professor at Utica College

12 at Syracuse University.,

13 Q

And do you teach in a particular field?

14 A

Yes, I am a professor in Criminal Justice, and I

15 usually teach courses, such as prisons, or violence, orj 16 assessment in treatment of offenders, and research methods,

17 Q

All right. Let me hand you this document, and ask

18 you if you recognize it?

19

MR. AMLONG: Your Honor, .1 stipulate to the

20 introduction of Mr. Lockwood's CVf assuming it is the same 21 one I saw yesterday.

22 BY MR. DAVIS:

23 Q

This is your CV?

24 A

Yes, it is.

25

THE COURT: All right.

Pauline A. Stipes Official Federal Reporter

567
T l BY MR. DAVIS:

2 Q

Mr. Lockwood, could you give us, briefly, some of

3 your background, first your educational background?

4 A

I have a Ph.D. in Criminal Justice which I got at the

5 State University of New York at Albany. I got the Ph.D. in

6 1977, and I also have a Master's Degree from Stanford

7 University which I got in '73, and Bachelor's Degree from

8 City College of New York in 1969.

9 Q

All right. After receiving those degrees, have you

10 had — or even during the time while you were in the course

11 of receiving those degrees, were you employed in the

12 teaching or academic profession?

13 A

Well, .during the time I was getting my Ph.D.

14 dissertation — my Ph.D. Degree, working on my

15 dissertation, at the same time for two years during that

16 period, I was employed by an agency called the Criminal

17 Justice Research Center, Incorporated which worked on

18 federal grants., and my area primarily was to work in the

19 area of prison research.

20

jJuring those two years, my supervisor was a man

21 called Hans Toch, and Hans Toch is, I would say at the time

22 and still is considered to be one of the — possibly the

23 leading expert in the area of prison violence,.

24

THE COURT: Area of prison what?

25

THE WITNESS: Prison violence.

Pauline A. Stipes Official Federal Reporter

568

Til

THE COURT: Spell his name.

2

THE WITNESS: T o c h.

3 BY MR. DAVIS:

4 Q

And what academic positions have you held since that

5 time?

6 A

Well, the first academic position I had after that

7 was assistant professor of criminal justice for the State 8 University of New York. I started there 1977, then three

9 years later, I moved on to Temple University in

10 Philadelphia where I was Assistant Professor of Criminal

11 Justice also, and I was there for four years, and I worked

12 at Maris College, briefly, that is in Poughkeepsie, New

13 York, and now I am at Syracuse University.

14 Q

Okay. During the time of your study, and the time

15 that you were in the criminal justice field, have you been

16 involved in any research projects in the field of prison

17 behavior, prison violence, prison conditions?

18 A

Yes, I would say I have been involved in several

19 major, major projects. ^ly first research assignment in the

20 field was to work on the problem of protection, and I was

21 assigned a job of looking at protection from, let us say, a

22 social psychological point of view, while working on a

23 federal grant called Intervention for Inmate Survival which

24 was very closely tied into an attempt to reduce the

25 incidence of suicide, and self jury in prisons.

Pauline A. Stipes Official Federal Reporter

569

1 II

As a result of that, I wrote an article which is in~a~

2 book called "Living in Prison." I moved on from working in

3 the protection area to studying the problem of prison

4 s^exual violence, and for, I would say, almost a three year

5 period, I was supported primarily by the Federal Government

6 to work on that particular problem, which, by the way, I

7 worked on ^ull time. It was a very indepth effort working

8 on prison sexual violence. I did a few side projects

9 during that period, also, one was interviewing prison

10 staff, especially correctional officers, line officers,

11 sergeants, officers, work supervisors, to find out about

12 how they recognized and managed inmate problems.

13 Q

And where were the studies that you have indicated

14 conducted, the primary study that took three years on

15 prison sexual violence?

16 A

I started the prison sexual violence study in a

17 prison called Attica, which is in Attica, New York, andrI

18 worked there for several months conducting clinical

19 interviews, looking at files, and I also did a research in

20 the prison called Auburn in Auburn, New York, a prison

21 called Greenhaven Correctional Facility, Comstock, New

22 York, and Cokesachi, which is a prison for youthful

23 offenders.

24 Q

Have you authored any work in prison conditions,

25 prison sexual violence?

Pauline A. Stipes Official Federal Reporter

570

1 A

Most of the research efforts I have described have

2 resulted in publications. They have all been written up in

3 standard literature on the field. The work on prison

4 sexual violence in a book called "Prison Sexual Violence"

5 published in 1980, "Living in Prison," 1977, and a series

6 of articles that have appeared in books with titles such as

7 "Problems and Solutions to Prison Sexual Violence,"

8 "Contribution of Prison Sexual Violence To Stress," and

9 "Coping in Confinement." That appeared in a book called

10 "Coping With Confinement," and then I have other articles

11 here and there, one in a book called "Prison Violence," and

12 another chapter called "Dilemmas of Punishment." That is

13 the most recent in the field, 1984.

14 Q

You mentioned you are a professor of Criminal

15 Justice, is that an interdisciplinary discipline?

16 A

Criminal Justice is an interdisciplinary field, by a

17 greater extent was defined by the graduate school I wentt 18 to, and involves the study of Criminal Law, Social

19 .Psychology of Criminal Behavior, and rigorous study of

20 research methods and computers.

21 Q

There are a few issues I would like to discuss with

22 you, substantive issues. One is that of the reporting

23 behavior of people alleging sexual violence.

24

Could you discuss with the court what the reporting

25 behavior problems consist of?

Pauline A. Stipes Official Federal Reporter

571

1 A

Well, from the research point 6T vTew, and I had the

2 great privilege working with Michael Leeland who worked in

3 this area, and that was very helpful. When we are talking

4 about reporting behavior, it is a big problem, because we

5 have to try to find out what the actual rate of

6 victimizations as compared to the known rate, and the known

7 rate comes from reporting behavior. A n d —

8 Q

Could you explain those two terms, actual rate, and

9 known rate?

10 A

The known rate of criminal behavior is what we call

11 the reported rate, and these are incidents that are

12 reported to law enforcement officials. In a free world our

13 source for that is the uniform crime reports which would be

14 published in some books, such as the source book of

15 criminal justice statistics, known rate comes from reports

16 to officials.

17

Over the last 10, 15 years, those of us who have done

18 research in victimizations have made major efforts to try

19 to get together methods to learn something about the

20 unknown rate of victimizations, and I call these self

21 reports. And in the national — pn a national level, we

22 have a method of doing that which is national crime survey,

23 NCS.

24

National crime survey, which is a survey of

25 households, very much like census, and a random survey of

Pauline A. Stipes Official Federal Reporter

572 1 households taken, and someone knocks on the door, and asks

2 questions about victimizations that might have occurred to

3 members of that household.

4 Q

Okay, so the actual rate of victimizations, or actual

5 fate of incidents consist of the known reported rate, plus

6 fchose that have been unreported?v

7 A

Yes. When we talk about the problems with the data,

8 and problems with going to field at a certain rate is

9 trustworthy, we have to look carefully, methods for doing

10 that, and the results.

11 Q

And are there any studies indicating what the

12 percentage of the actual events are that are reported in

13 the field of sexual violence?

14 A

Well, now-a-days, because a lot of attention has to

15 be focused on this issue, .1 think those of us in the field

16 of victimology has a pretty good understanding that their

17 reported rate is probably about one third to one half less

18 than self-reported rate which would be considered to be the

19 actual rate. People commonly say one third to one half of

20 incidents of forcible rape are reported to law enforcement

21 officials in the free world.

22 Q

Have there been any studies done to indicate what the

23 reported or known rate of homosexual assaults are in the

24 prison systems?

25 A

The question is studies of the known rate or reported

Pauline A. Stipes Official Federal Reporter

573
1 II r a t e .

2 Q ^Are there any studies indicating the relationship

3 between the actual rate and known rate of homosexual

4 assaults in confinement prison systems?

5 A

Yeah, if you follow the subject real closely, you can

6 find studies like that. They are not very common. They

7 are not published statistics, most defendants don't go to

8 the effort of actually compiling known rates, but there are

9 a few studies of those, yes.

10 Q

Are there some significant studies in that field?

11 A

Yes, I could even mention them, because there are

12 only three or four of them that I know.

13

Now, I did one, of course, Peter Notch!., . who is the

14 head of the research department for Federal Bureau of

15 Prisons made a major effort to look at the question in

16 1979, and he came up with a rate of reported incidents, and

17 Jje also came up with a rate of incidents that were self.

18 yhere was a pretty good study in North Carolina from 1976,

19 and t^hen. of course, we have a study by Davis which was

20 called "Sexual Assaults" in Philadelphia Prison Service,,

21 and he published in"78, but the data came from '65.

22 Q

What do the studies indicate as the relationship

23 between the reported rate and the actual rate?

24

MR. AMLONG: Your Honor, I am going to object

25 to this as hearsay.

Pauline A. Stipes Official Federal Reporter

574

1 II

Now, as to any studies that Mr. Lockwood did, that,

2 of course, would be admissible. For him to recite what

3 other people have found is to allow into evidence findings

4 of specific studies without allowing me to cross-examine

5 the proprietor of those studies as to methodology, and how

6 valid those studies are.

7

THE COURT: Well, I think he can rely on just

8 about any data he wants to as an expert to support whatever

9 opinion he is going to come up with. While he could be

10 asked to define what these studies were, and how much he

11 knows about them, I don't think I can prevent him from

12 talking about them, and utilizing them in his opinion.

13 Your objection is overruled.

14

MR. AMLONG: It is not being accepted into

15 evidence for the truth of the matter of those studies?

16

THE COURT: No, I don't think so. Technically

17 not, anyway.

18

MR. AMLONG: Thank you, Your Honor.

19 BY MR. DAVIS:

20 Q

Mr. Lockwood, in the practice of your profession as a

21 criminal law specialist, do you rely upon work done by

22 others in the field and published in journals?

23 A

Ye s.

24 Q

Okay. Going back to my question to you, what do the

25 various studies indicate as to the relationship between the

Pauline A. Stipes Official Federal Reporter

i75

1 known and actual rates of homosexual rapes or sexual

2 batteries in prison systems?

3 A

The question is about the relationship between known

4 rates and unknown rates?

5 Q

Right.

6 A

Maybe I could start out by my study. My study^

7 indicated that about 70 percent of the incidence that I

8 looked at were known to staff. Now, 50 percent of those

9 were reported, and the others were known to staff because

10 they were maybe observed^ or came out as a result of a

11 disciplinary infraction, something like that.

12 Q

When you say known to staff, you mean someplace

13 recorded in the records?

14 A

Yes, it would be in the file, yes.

15

N Q W . what Nptchi did in 1979, which really took quite

16 an effort, they went through every inmate file, there were

17 31,000 of them in 1979. They found that about every month 18 there w^r** *"Mn inriripn<-c pf sexual battery known to staff.

19

If you like, there is a better way of saying that so

20 that we can make these comparative, that what you might

21 say, then, is that Notchi found a rate of 6/10's of a

22 percent.

23 Q

(5/10's of a percent, what is that the rate of?

24 A

6/10fs of the population had been victims of sexual

25 battery in '79. That is a known rate, 6/10's percent.

Pauline A. Stipes Official Federal Reporter

£76

1

Now, Notchi also did a self report, victimizations

2 survey in 1979, and he did a very careful random sample of

3 330 peopift). and based on that, he found two victims of 4 sexual battery which would give us a rate of about 1/10fs

5 of a percent.

6 Q

And the study by Notchi of the 31,000 inmates in the

7 federal prison system?

8 A

Yes, that was the federal prison system.

9 Q

Showed that the sexual battery rate, or the number of

10 sexual batteries per inmate was 6/10's of one percent?

11 A

That was his estimate based on self report

12 victimizations survey that he carried out.

13 Q

Okay. What was the rate that he found from his

14 survey of the 31,000?

15 A

That was a rate of about l/10th of a percent.

16 Q

Okay.

17 A

This is for sexual battery.

18 Q

So that from the study of the records, Notchi was

19 looking for the known rate of sexual assault, is that

20 correct?

21 A

Yes.

22 Q

And, based on his victimizations study, he determined

23 the actual rate, is that correct?

24 A

Yes.

25 Q

A^id that showed 6/10's of a p e r c e n t , is that c o r r e c t ?

Pauline A. Stipes Official Federal Reporter

A

Yes.

2Q

Okay. you refer to the North Carolina study.

3

What was the North Carolina study?

4A

_Nnrfh Carolina study was a study using official

5

*nri WP wnnid. jigain call that the known rate, or

6 the reported rate, and that is 1976 study of Forbs and

7 Raber, and they found 7/10's of a percent, 1976.

8Q 9A

Is that the actual rate, or the known rate? That is the known rate.

10 Q

What about the Philadelphia si-ydy?

11 A

Now, Philadelphia study, published in '68, this was

12 what I would call a victimizations survey carried out by

13 the District Attorney's Office using trained investigators,

14 . good interviewers, and thpy found a rate there of 2.9

15 percent. That is a self-reported victimizations survey.

16 Q

That was the actual rate, is that correct?

17 A

Yes.

18 Q

So we are clear, actual rate includes reported and

19 unreported assault, and the known rate includes only the

20 reported assault, is that a fair statement?

21 A

Yes.

22 Q

Have you had occasion to review the records relating

23 to sexual batteries, alleged sexual batteries at Glades

24 /Correctional Institution between January 21, 1986, and the

25 end of 1989?

Pauline A. Stipes Official Federal Reporter

£78

1 A

Yes, I spent a good deal of time going over those.

2 Q

Would those reported events which appear in the

3 investigative records constitute the known events, or

4 actual events?

5 A

ThnfiS would be the known events.

6 Q

Okay. Have you computed what the rate of sexual

7 battery has been at Glades Correctional Institution, the

8 known rate of battery from 1986 to the present time?

9 A

Yes, I calculated that for the years 1986, '87, '88,

10 and '89.

11 Q

Okay. What were those for each year?

!2 A

1986, it would be l/10th of a percent. 1987. 1/5 of

13 a percent. 1988, l/10th of a percent. 1989. 1/lOth of a

14 percent.

15 Q

How does that compare — and this is the known rate

16 of sexual battery?

17 A

Yes.

18 Q

How does that compare with the known rate of sexual i

19 battery found by Notchi in his study?

20 A

It is a surprisingly pretty close. It is really

21 pretty close to that. As I said, Notchi found about 1/lOth

22 of a percent, and these rates, '86, is actually l/10th.

23 '87, 1/5, and '88. So, similar for three years.

24 Q

And slightly higher on one year?

25 A

Right. In absolute numbers, the rates are advertised

Pauline A. Stipes Official Federal Reporter

579

1 II as higher in '87, absolute numbersy slightly higher since 2 w,e are dealing with a statistically rare event. We are

3 talking about rates per 100,000. It is not that many.

4 Q

And the Notchi study of the federal system, was that

5 located in a particular area, or was that your entire

6 United States Federal System of Prisons?

7 A

Notchi being a very good statistician made an attempt

8 of getting a rate from the entire federal system, doing

9 what we call a stratefied random sampling from the

10 institution.

11 Q

How does the rate compare to the North Carolina study

12 which I believe you indicated was also a known rate?

13 A

Yes, ,that study by Fuller in 1976, that rate was,

14 7/10fs of a percent, so the rate is considerably higher.

15 Q

Higher at North Carolina?

16 A

Yes, the rate is considerably higher at North

17 Carolina.

18 Q

Now, the Philadelphia rate was an actual rate, isr.

19 that correct?

20 A

Yes, that was a self report victimizations survey.

21

THE COURT: Self-employed what —

22

THE WITNESS: Self report victimizations

23 survey.

24 BY MR. DAVIS:

25 Q

Is there any way to translate from an actual rate to

Pauline A. Stipes Official Federal Reporter

1 aknown^rate, is that possible to do?

2 A

You mean in a prison system?

3 Q

Yes.

4 A

Very hard to do. In my work, I have always

5 discouraged anybody trying to extrapolate a rate from one

6 place to the other without knowing the institution.

7 Q

Okay. You mean to extrapolate an actual, comparing

8 an actual rate of one institution to a known rate of

9 another?

10 A

Yes, that is hard to do.

11 Q

It is better to compare actual rates to actual rates,

12 and known rates to known rates?

13 A

Yes.

14 Q

What do the studies indicate as to the frequency of

15 sexual battery, and perceptions of sexual battery?

16 A

You mean in prison?

17 Q

In prison?

18 A

It is a subject we looked at quite carefully.

19 Myself, and other people who have looked at that question,

20 other researchers who have looked at that question

21 generally find that prisoners, and even staff, perceive a

22 rate that is much higher than the actual rate, and the

23 perceptions of the environment are generally not at all

24 accurate gauge of what, in fact, occurs.

25 Q

So, if you were to ao to a group of inmates, or a

Pauline A. Stipes Official Federal Reporter

581

1 <jroup of g u a r d s , or w h a t n o t , and ask them their perception

2 as to a rate of sexual battery at an institution, that

3 relation to you would be based, or would likely be based on

4 perceptions?

5 A

<5fes, it would be based on what I call personal

6 theories, and there are a number of studies on the subject.

7 Randy Atlas did a nice study, published in '83, Prison

8 Journal, actually d o n e i n Florida where he questioned a

9 good random section of the environment, and learned about

10 incidents that were occurring in that environment, and he

11 f^ound there were some remarkably d i s s i m i l a r .

12

Nptchi found the same thing in the federal system. I

13 found a similar situation.

14

So it is very common in the field of victimizations

15 ^o find that perceptions of an environment are not an

16 actual gauge of the actual incidents that occur in that

17 environment.

18 Q

Does that make the attempt to rely upon an inmate or

19 a group of inmates perception of their environment in a

20 prison system a risky or inaccurate method of determining

21 the actual situation?

22

MR. AMLONG: Objection, Your Honor, leading.

23

THE COURT: The objection is overruled.

24

THE WITNESS: Most victimologists, most

2 5 victimologists, would claim that personal opinions of

Pauline A. Stipes Official Federal Reporter

£82

1 environments cannot be relied on for the actual rate

2 victimizations might be occurring in that environment.

3 BY MR. DAVIS:

4 Q

What are the reasons that have been determined in the

5 studies for the misperception by inmates, or by staff of

6 the rate of violence within an institution or any other

7 misperceptions regarding their environment?

8 A

Well, what commonly happens in prison environments,

9 .since they contain individuals who are predisposed towards

10 jfiolent behavior, people naturally perceive the environment

11 being dangerous because of these people whom they are close

12 to_, and they extrapolate that into a belief that there is. a

13 high rate of incidence, because of all the questions they

14 are getting from the people around them.

15 Q TDoes the misperception that exists among inmates in a 16 prison environment extend beyond their perception of

17 violence to their perception of other enviornmental fact;s?

18 A

Yes. This question also has been looked at. and, in

19 particular, I did it, Notchi did it also in his research,

20 because it is an important question to look at. We

21 frequently find that most members of the prison community—

22 and by the way. I would include superintendents, wardens,

23 right down to newly arriving inmates—generally have a

24 personal theory that the rate of — the actual rate of

25 homosexuality, eventual homosexuality is far higher than

Pauline A. Stipes Official Federal Reporter

1 the rate that would be detected by a properly conducted? 2 self report study..

3

Also, we find that all members of the prison

4 community commonly have a personal theory about things such

5 as contraband, and all forms of misbehavior, they generally

6 believe that is much higher than it would be detected by a

7 proper investigation, proper research, or doing a good,

8 interview in a private area, and really finding out some

9 pretty reliable information,

10 Q

You indicated that you have undertaken psychosocial

11 investigations into prison environments.

12

Could you give us your opinion relating to the

13 methods and techniques that are essential in order to

14 conduct a proper investigation of the conditions within a

15 prison environment based upon inmate interviews, as a

16 source?

17 A

Yes. Well, there are a number of steps that I would

18 take, or other people who in the area would take. We

19 would, first of all, draw a random sample from the housing

20 list.. We would request a superintendent to give us a list

21 of all the names of the people currently of that

22 institution, and depending on the size of the sample which

23 should be above 100, 150 might be good, because you have a

24 refusal rate. You want to get 100. You are going to

25 svstematicallv take, let us say, every twentieth person

Pauline A. Stipes Official Federal Reporter

through the housing list, we call that a systematic random

2 sample which allows us to make statistical inferences about

3 the rate that would occur in the population, and along with

4 those statistical inferences, we can present things that we

5 call confidence levels, and confidence intervals. It is

6 like election holding.

7

ftfter we did that, we would request a private

8 interviewing room. If we had the time, we do the

9 interviews. If we didn't have much money, or much time, we

10 would do a survey. We would get all these people together

11 in various places, and give out a survey. If we had the

12 time, I probably prefer an interview, and it would be in a

13 private room. We establish rapport with the individual,

14 and interview would hp tape recorded, tape recorded and

15 transcribed, because following the interview, we have to

16 analyze the content of the interview, and the proper wav to

17 analyze an interview is to have two people do it;.

18

We call that two independent coders, one person would

19 do it, and would analyze it or tabulate it in certain

20 categories finding the incidence of this or that, and

21 making judgments, and then holding that information aside,

22 another person would analyze the same information. We call

23 that content analysis, and the aim of doing that is to try

24 to get a measure of reliability for analyzing the

25 information.

Pauline A. Stipes Official Federal Reporter

T ~Q

In your opinion, would it be valid methodology in a

2 prison where the inmate population consists of

3 approximately 55, 54, to 55 percent black inmates, and 46<

4 percent to 44 percent white or Latin inmates to draw a

5 sample, not systematically, but arbitrarily from the group

6 consisting of 54 inmates, four of whom are black, and 50 of

7 whom are white in order to determine the views and

8 perceptions of the inmates relating to conditions within

9 their environment?

10 A

No.

11 Q

That would not be a proper methodology?

12 A

No.

13 Q

What is wrong with it?

14 A

Well, t;he first thing that would be wrong with it is

15 that we could not scientifically or statistically infer a

16 rate for the population based on the sample,, so we just

17 would not be able to get any rate for the population that

18 would stand any kind of scrutiny from our colleagues, and

19 the second thing that would be wrong with it, the content

20 of the interviews would be coming from a very bias sample.

21 You would want a representative or random sample.

22 Q

How, in view of what you previously told us about the

23 phenomenon of misperception of inmates of their

24 enviornmental surroundings, and situation, how must an

25 interviewer conduct interviews in order to overcome the

Pauline A. Stipes Official Federal Reporter

386 1 problem of misperception. What techniques are usecfl, what

2 is used to determine the true underlying conditions?

3 A

Well, the technique that I used myself, and I have

4 been trained to use, and I think the standard in the field

5 of victimoloqy is to ask about specific incidents that

6 individuals have been involved in, and to get the

7 characteristics of those specific incidents, time, place,

8 who the participants were, not the names, but how many, 9 things like thai-,, and 1-hpn we would also want to know 10 something about the thoughts and feelings surrounding the

11 incident so we could get some psychological content, and

12 following that, we would tabulate the information which I

13 would call incident based firsthand information, and op.

14 myself, and my work, I discount opinions or perceptions

15 about what goes on. I am only interested in the incidents

16 that individuals have been involved in, or not involved in.

17 It is just as important to know a person has not been

18 involved in an incident, and following that interview. I go

1^ to the files, and tabulate the background of the character

20 of the individual from the files.

21 Q

So the inmates are not relating what everybody knows,

22 quote, on the compound, but what they, themselves, directly

23 experienced?

24 A

Yes.

25 Q

jEs there any scientific value or validity in a study

Pauline A. Stipes Official Federal Reporter

587

which consists of interviews drawn in the manner I

indicated, 54 inmates, 51 of whom are white, and four black at an institution of 54 to 56 percent black, is there _anY scientific value or val idity in such a study which is used in order for the researcher to draw general impressions of

the conditions at a facility based upon such^ interviews?,

7 A

We11, I think most victimoloqists would have trouble

8 with that method.

9 Q ffave you had occasion to review Mr. — Dr. Swanson's

10 notes on his interviews with the inmates in this particular

11 .study?

12 A

Yes.

Q

in your view, does that particular study meet the t

14 necessary scientific standards for validity and value?

15 A

No, I would say it doesn't, because the sample was

16 not a random sample. It does not allow for statistical

17 inference as to any sort of rate in the population. I

18 would also say the data analysis method, relying as it did

19 on notes, allows for no liability check, and commonly in.

20 frhis field, we have to have independent coders working on

21 some data base, and the best sort of data base in this

22 situation would be a tape recorded and transcribed

23 interviews that two independent coders would look at. and

24 that wasn't done either. I see problems with the data,

25 collection, with the sample, as well as the data analysis.

Pauline A. Stipes Official Federal Reporter

388

1 Q

Have you done work in the field of inmate feelings

2 and perceptions relating to their safety within the

3 compound?

4 A

Say that again.

5 Q

pave you done work relating to inmates' safety within

6 the compound, and their feelings of safety within the

7 compound?

8 A

Studies in prison?

9 Q

Yes.

10 A

Yes.

11 Q

What work have you done in that field?

12 A

In the area of fear, you mean?

13 Q

Yes.

14 A

We11, the article that I wrote about protection in a

15 tbook called "Living in Protection" was a study of fear in 16 confinement, and then much of my book, I would say, is a

17 study of fear in prison. The book of prison sexual 18 violence, and since then I also wrote several articles tn^t

19 have been published in books about inmates' reaction to

20 fear, inmates way of coping with fear, things of that kind.

21 Q

Do suicide rates in prison bear any relationship to

22 inmate safety or apprehension of safety within a prison

23 environment?

24 A

yes. And, primarily, that is why the Justice

25 Department was interested in funding this research effort,

Pauline A. Stipes Official Federal Reporter

>89 1 II because there is a close relationship between fear and

2 suicide, or self injury in prisons, and fear-related crisis

3 are one of the major causes of suicide, or self injury in a

4 jail or prison.

5 Q

Let me ask you to assume that since 1986 Glades

6 Correctional Institutional, which is an institution of

7 approximately 1200 inmates today, and for the past two

8 years, and previously an institution of about 900 inmates,

9 has had no suicides, does that tell you anything about the

10 perceptions of safety of the inmates within the

11 institution, or their perception of protection within the

12 institution?

13 A

Well, sure, it is a pretty important piece of .

14 information because if we were to go — if I were to go to

15 a system that did have a number of suicides, I would ask to

16 look at the psychological autopsy, and I could probably

17 predict that some of them would be fear related. I think

18 it is an important piece of information, yes.

19 Q flow does the rate of suicide or suicide attempts work,

20 into the inmates' fear of their safety within the compound?

21 What is the connective link between those?

22 A

Well, inmate crisis fall into various categories.

23 The category that I suppose I have contributed the most %o .

24 in my work is what I like to call fear avoidance..

25

Fear avoidance crisis works something like this; A

Pauline A. Stipes Official Federal Reporter

i90

1 II prisoner is very afraid that someone is going to get him,

2 and once that person experiences that fear, they look out

3 fn the environment, and they try to find some way to cope

4 Tgith that fear, and if they can't readily cope with the

5 fear, then they develop the feeling that their faith is

^ Inevitable, and they are going to be a victim very shortly

7 in the future, then what will go through their mind so as

8 to avoid that certain faith of being victimized, they will

9 then make an attempt on their lives because they feel that

10 they are going to be a victim anyway..

11

One prisoner said after he cut his wrist, and he

12 explained what was going on, he said I felt I was going to

13 be a goner, and when I explained this in presentations or

14 classes I give, I often say we have a couple common

15 examples, such as Jonestown massacre, recently, typical

16 faith avoidance crisis, fairly common correctional

17 institutions when you break inmate crisis down into

18 categories.

19 Q

go that a low suicide rate or suicide attempt rate

20 within prison would be indicative of what?

21 A

It would be indicative not of a lack of fear. rt

22 would be indicative of an environment that either formally

23 pr informally allows individuals an opportunity to cope

24 with the crisis, to do something about the situation, do

25 something other than suicide, have something else to turn

Pauline A. Stipes Official Federal Reporter

391
1 II t £ .

2 Q

Speaking of several other information of perception

3 in the prison environment, is there a perception among

4 inmates in respect to dormitory type facilities as opposed

5 to single cell facilities?

6 A

yes.. And this perception is reported in a couple of

7 different studies. The results of the study, Notchis 8 Reported that perception, and Randy Atlas, in his '83.

9 article, prison journal, also reported that perception^

10 Q

And what is the misperception that inmates have of

11 the characteristic of danger as between dormitory

12 facilities, and single cell facilities?

13 A

Prisoners generally perceive dormitories as being

14 unsafe environments..

15

THE COURT: Being what, sir?

16

THE WITNESS: Unsafe environment. You ask the

17 prisoners how they perceive the environment, and you have

18 prisoners with single cells and double cells. When you

19 compare the fear related concerns, or perceptions of people

20 in dormitories versus cells, people who live in.

21 dormitories, perceive the environment as being mor.e

22 dangerous than people who live in cells.

23

However, when you look at the actual rate ofa

24 incidents, you find that the incidents, surprisingly, the

25 incidents in dormitories is not necessarily all that much

Pauline A. Stipes Official Federal Reporter

592 ~~I higher than the rate d F incidents in cells.

2 BY MR. DAVIS:

3 Q

Do you have an opinion as to whether population

4 density in a facility has a tendency to increase violent

5 behavior within the institution?

6 A

Oh, sure, I have an opinion on that, because for many

7 years I taught a course on violence, and that is one of the

8 things we look at. It is real interesting for the students

9 because they come into the class believing that population

10 density, or what we might call crowding is contributor to

11 violence, being most of the research on the field shoes

12 that population density, per se, or crowding, per se, has

13 very little correlation with violence, and, of course, %

14 have looked at it specifically in the area of prison

15 violence, and one of the most surprising things to people

16 wfyq don't spend a lot of time with the subject is that

17 prison crowding, population density, per se, is not

18 ,necessarily correlated with prison violence. Highest

19 population density in United States, New Jersey, pretty lqw

20 violent; Alaska, very high one, low population density.

21 Q

You have had occasion to observe the facility at

22 Glades Correctional Institution?

23 A

Yes.

24 Q

And when was that?

25 A

January 2nd.

Pauline A. Stipes Official Federal Reporter

593

1 Q

Okay. And you have also had occasion to observe the

2 — to review a range of documentation?

3 A

Yes.

4 Q

And what was that?

5 A

You mean January 2nd, or since then.

6 Q

Altogether with respect to this case?

7 A

Well, let's see, I went over the incident reports

8 looking very carefully at 15 of them, and then J.

9 various depositions. I read over Tnotes that Dr. Swanson 10 took during the course of his interviews while at Glades.

11 I looked at one representative inmate file to get a sensq

12 .of how the system forms, and what the system had, and I

13 looked at protection reports, and disciplinary reports,,

14

MR. DAVIS: I have no further questions at this

15 time, Your Honor.

16

THE COURT: All right.

17

CROSS-EXAMINATION

18 BY MR. AMLONG:

19 Q

Good afternoon, Dr. Lockwood.

20 A

Hello.

21 Q

I presume that your review of the disciplinary

22 reports, the incident reports, and depositions, and Dr.

23 Swanson's notes all took place subsequent to the time that

24 I deposed you last night?

25 A

Yes — before that. You mean I looked at them before

Pauline A. Stipes Official Federal Reporter

>94 1 we spoke last night.

2 Q

And then you looked at them afterwards, right?

3 A

A little bit.

4 Q

Because you had not reviewed them before?

5 A

Yes, I reviewed them before. We spoke last night

6 until 8 o'clock. There hasn't been much time.

7 Q

Are you familiar with — You toured Glades

8 Correctional Institutional?

9 A

Yes.

10 Q

And you went to the dormitories, and the minimum

11 security side, and dormitories in the maximum security

12 side?

13 A

Yes.

14 Q

Now, are you familiar with federal prisons? Have you

15 ever visited federal prisons?

16 A

Yes.

17 Q

How about North Carolina prisons, have you ever

18 visited North Carolina prisons?

19 A

.No.

20 Q

What about the Philadelphia prisons.— Or, Temple

21 University is in Philadelphia?

22 A

Yes.

23 Q

Are you familiar with the prison there, and prison

24 there?

25 A

I ran a project in the prison system there.

Pauline A. Stipes Official Federal Reporter

1 Q

Is there anything about Glades Correctional

2 Institutional that impresses you as making it likely that

3 they would have — that Glades Correctional Institutional

4 would have lower actual rates of rape than either the

5 federal prison system, North Carolina Prison System, or the

6 Philadelphia Prison System?

7 A

We are talking about differences in time?

8 Q

Well, are the studies about the federal prison

9 system, North Carolina Prison System, and the Philadelphia

10 Prison System relevant to the situation at Glades

11 Correctional Institution?

12 A

Yes.

13 Q

All right. Is there anything about Glades

14 ^Correctional Institutional that you observed that makes it,

15 likely that there should be a lower rate of homosexual rape

16 there than was documented in the Notchi study, North

17 Carolina study, and the Philadelphia study?

18 A

Well, let's see now. Notchi study was pretty close.

19 When you say lower, it is about the same, really. Now, the

20 federal prison system, 1979 did a pretty good job of trying

21 to make inmates safe. They were pretty much on top of

22 things, and sent out patrols, and training, and everything

23 .else.

24

Maybe you think about as soon as you had minimal,

25 minimal acceptable standards for inmate safety that that is

Pauline A. Stipes Official Federal Reporter

596

1 II the kind of rate that is going to prevail no matter what

2 you do.

3 fts far as the Philadelphia system, that is

4 extraordinarily high rate. 2.5 percent, they are very high

5 ^ate. It was a scandal at the time, 1965, that primarily

6 prevailed because inmates were not protected.

7 Q

What did the federal system do to protect its prison

8 inmates from rape?

9 A

Well, the federal prison system is made up with,

10 prisons with cells, and prisons with dormitories, and thei.r

11 procedures would be to have the architectural setting —

12 set up so that the places where people sleep are generally

13 in view, and officers patrol around, so it is a combination

14 pf architecture, and custody.

15 Q

it is pretty important that officers patrol the

16 dorms, is it not?

17 A

Yes.

18 Q

And the architecture of the prison has a lot to do

19 with the safety, correct?

20 A

Yes.

21 Q

And when you went to Glades Correctional

22 Institutional, you walked through those dormitories, and

23 you walked back to the shower, correct?

24 A

Yes. *^ .

25 Q

And, the vantage point — a n officer who sits in the

Pauline A. Stipes Official Federal Reporter

>97 1 wicket cahrt see into That shower area now, can he?

2 A

That is correct, he can't.

3 Q

In fact, he can't see into the shower area unless he

4 is standing about 15 feet from the shower area, is that

5 correct?

6 A

Yes, as I remember it, you can get different angles

7 on different sides.

8 Q

But he has got to be within a 15 foot radius of the

9 opening of the showerarea?

10 A

Yes, as much as 1 remember. I don't have a diagram

11 or any pictures to really—

12 Q

And the recreation room, when I say that, T.V. room,

13 and game room combined?

14 A

As you look down that room to the left.

15 Q

And in each dorm it is a little bit different, but

16 that is the room where they have the T.V., and game table.

17 You are familiar with that room?

18 A

Yes.

19 Q

I believe your assessment of that was that that room

20 was not observable, not policible to a guard unless that

21 guard was actually standing in the doorway, is that

22 correct?

23 A

Yes, as much as I remember.

24 Q

Now, and you also toured the protective confinement

25 area, did you not?

Pauline A. Stipes Official Federal Reporter

i98
1 II A YesT

2 Q

And you found that the protective confinement area

3 would be observable if there were one inmate per cell, and

4 a guard who would walk down there every half hour, correct?

5 A

Say that again.

6 Q

You found that the inmates in the protective

7 confinement area would be protectable, would be policible

8 if there were one inmate per cell, and if the guard were to

9 patrol down there every half hour, correct?

10 A

I am sorry, that is a double barrel question. Would

11 you mind saying one at a time?

12 Q

Sure, can the guard see — can the guard in the

13 confinement area see into the individual cells in the

14 confinement area? I am talking about protective

15 confinement.

16 A

Yes.

17 Q

From his desk?

18 A

No.

19 Q

He has to walk down and look into the cells to be

20 able to see what is going on, correct?

21 A

Yes.

22 Q

And as long as there is one inmate per cell, that is

23 an okay way of doing it, right?

24 A

Well, I don't understand.

25 Q

If you have two inmates per cell, can the guard

Pauline A. Stipes Official Federal Reporter

>99

1 li sitting at the confinement area guard station adequately

2 view what is going on in those cells?

3 A

You mean standing at the end?

4 Q

Yes.

5 A

No, he can't see what is going on.

6 Q

And that is not protectable space, then, is it? An

7 inmate is not safe there if he is locked up in a cell with

8 another inmate?

9 A

Well, all prison systems that are based on cells do

10 not allow for the—generally do not allow for officers to

11 lfiok into the cells. The officer has to be, usually,

12 walking down and standing directly in front of the cell to

13 look into it. Regardless of whether it is one or two

14 around.

15 Q

In protective confinement, the norm they are single

16 gerson cells, as opposed to two person cells, correct?

17 A

Well, J don't know if you would say it is the norm,

18 some do, and some don'fc.

19 Q

Well, you found that to be a failing of the Glades

20 Correctional Institutional system, did you not?

21 A

Well, the ACA Standard recommends single cells for

22 protection.

23 Q

During deposition, you told me that would be a

24 negative?

25

MR. DAVIS: Could counsel allow the witness to

Pauline A. Stipes Official Federal Reporter

iOO

finish?

2

MR. AMLONG: I thought he had.

3

THE COURT: Finish up if you haven't, please.

4

THE WITNESS: Where are we again?

5 BY MR. AMLONG:

6Q

Did you have anything more that you wanted to say? I

7 did not mean to cut you off.

8A

Let's see. Protection, single cell versus double

9 sell?

10 I Q

Yes.

11 A

What we talked about last night?

12 Q

Yes. You found it to be a negative that they were

13 double bunking in the protective confinement cells?

14 A

Yes. I was confused by the use of the word norm.

15 Norm, I would have to do a majority.

16 Q

Okay. Within your discipline there is a higher

17 probability that some rape occurs — involuntary homosexual

18 rape occurs in a prison setting than that no rape occurs,

19 is that correct?

20 A

Could you ask that again?

21 Q

All right. Is it probable that some rape occurs in

22 the prison setting?

23 A

That is a question?

24 Q

Yes.

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

iOl

1 II Q SO —

2 A

Well, depends on the State now. It is different

3 state-by-state. Vermont, for example, if you ask me a

4 guestion about Vermont. I would say not too—-

5 Q

|s there anything about Glades Correctional that

6 would make you think it is improbable that any rape would

7 occur there?

8 A

Is it improbable that sexual battery would occur

9 there?

10 Q

Yes.

11 A

No, no, it is not.

12 Q

The flip side of that then is that it is probable

13 that some level of sexual battery would be occurring at

14 Glades Correctional Institution?

15 A

Yes, I would say because of the region. It is — the

16 area that it is in. It is wa^m.

17 Q

And also the predominant black population has a lot

18 to do with it, too, does it not?

19 A

Yes.

20 Q

Because most targets of sexual aggression is white,

21 and most aggressors are black, is that correct?

22 A

Yes, the study that I have done shows that.

23 Q

And whites are chosen as targets because the

24 aggressors see them as weak and attractive, is that

25 correct?

Pauline A. Stipes Official Federal Reporter

)02 1 II A Yes, sounds familiar^

2

THE COURT: You said? I didn't hear you.

3

MR. AMLONG: He said sounds familiar.

4

THE COURT: All right.

5 BY MR. AMLONG:

6 Q

And blacks are the aggressors because black prisoners

7 tend to be offenders from subcultures and aggressive while 8 £hey a r e incarcerated, is that correct?

9 A

Yejs.

10 Q

And the environment of a prison place a significapt

11 part in encouraging sexual aggression?

12 A

Yes, the environment is very important.

13 Q

And whatever the perceptions or misperceptions that

14 you discussed, dormitories, cottages, and similar, quote,

15 indefensible, unquote, spaces are among the factors found

16 to contribute to prison rape, is that correct, doctor?

17 A

Now, I would say that I had that opinion when I wrote

18 the book. Since writing the book—that was 1980. Since

19 writing the book, I've read Notchi's study. I read Randy

20 Atlas' study. These are about dormitory situations, and I

21 would say that just based on looking at the facts and their

22 studies, my opinion on that has changed.

23 Q

Well, that is studies other persons have done?

24 A

Pardon?

25 Q

That is from studies that other persons have done,

Pauline A. Stipes Official Federal Reporter

iO3

1 II correct?

2 A

You mean that has caused me to change my opinion on

3 that?

4 Q

Yes.

5 A

Yes. Because—

6 Q

Jhe only investigation that you did found that

7 prisons with single cells, about 25 percent of the men had

8 been targets of broader sexually victimizing incidents, but

9 only one out of the random sample of 76 had been raped, is

10 that correct?

11 A

Yes.

12 Q

Now, when you talk about the perception of prisons as

13 being worse than they are, you don't mean to suggest that

14 an inmate would misperceive a homosexual rape that he

15 actually witnessed, do you?

16 A

Well, what do you mean by actually witnessed?

17 Q

Well, if an inmate were to testify, I saw people come

18 to a bunk and take somebody out of a bunk, and take him

19 into the washroom, and bend him over the shower and rape

20 him, that is not the kind of thing that is misperceivinq,

21 is it?

22 A

If you are asking me am I likely to believe an,

23 ^Informant or respondent, I would have to answer the.

24 question by saying thaj^ I would have to talk to that

25 individual myself, preferably in a private room. I have to

Pauline A. Stipes Official Federal Reporter

504

1 II have the opportunity to see demeanor, to ask some probing

2 questions to try to get at not only if the person was 3 telling the truth, but whether the person actually saw what

4 he was reporting, yea.— Qt-hprw-j ^e. , 7 could not make the

5 judgment, I am sorrv.

6 Q

Now, in your comments about the absence of suicide at

7 Glades Correctional Institution, indeed that is the case,

8 an absence of suicide does not measure the absence of fear

9 among the inmates, does it?

10 A

No.

11 Q

An absence of suicide does not measure the likelihood

12 or unlikelihood of homosexual rape, does it?

13 A

No.

14 Q

Doctor, how many times before have you testified as

15 an expert witness?

16 A

Once before.

17 Q

And where was that, and what was the subject matter

18 of your testimony?

19 A

That was Texas case, and the subject matter of the

20 testimony had to do with the effect of explicit homosexual

21 literature on prisoner violence.

22 Q

And you testified that the — that providing male

23 prisoners with explicit homosexual pornography increased

24 yiolence?

25 A

No. I only testified about the content of my book to

Pauline A. Stipes Official Federal Reporter

)05

fry tr> map a gpnpjal picture of prison sexual aggression in

2 a_typical prison in the United States.

3Q

There has been no research done of which you are

4 aware on whether or not male sexual aggression is hightened

5 and provoked by the exposure of prison inmates to boy/girl

6 pornography, has there?

7A

You are talking about any research done with a prison

8 population?

9Q

Yes.

10 A

Any experimental, prison population about the effect

11 of pornography on prisons?

12 Q

Male, female?

13 A

To my knowledge, no. I am not really an expert in

14 this area. As I told you, I did take a course on that

15 once.

16 Q

Yet you have found —

17 A

I really don't think so. No, I don't think you could

18 do it.

19 Q

Okay. But you have found that male prisoners who

20 rape other male prisoners see themselves, portray

21 themselves, the rapist, as being heterosexual men who are

22 having sex with some other inmate whom they have

23 effemanized, who they consider to be a woman, is that

24 correct?

25 A

That is correct?

Pauline A. Stipes Official Federal Reporter

1 Q

Is that correct?

"

2 A

That is correct.

3 Q

Now, when you visited Glades Correctional

4 Institutional, one of the things you asked Mr. Larabdin

5 about was about how people got into protective confinement,

6 correct?

7 A

Yes.

8 Q

Because access to protective confinement is an escape

9 v.alve for fear, correct?

10 A

Yes.

11 Q

And j.t is important that protective confinement not

12 b^e punitive, correct?

13 A

Well, to a degree. I don't know, really, if it is in

14 the best interest of everyone involved to make protective

15 confinement perfect in all respects.

16 Q

Well, you told me last night, did you not, that

17 causing prisoners to lose gain time, to lose good time

18 while they were in protective confinement, is not good, you

19 remember that?

20 A

Yes.

21 Q

Is it fair to say one reason for the difference

22 between the actual rate of homosexual rape, and the known

23 rate would be that significant disincentives exist for an

24 inmate to report that he has been homosexuallv raped?

25 A

What do you mean by disincentive.

Pauline A. Stipes Official Federal Reporter

507

1 Q

Negative things that happen to an inmate if he

2 reports he has been homosexually raped?

3 A

Yes.

4

THE COURT: Some time long about now we ought

5 to take a mid-afternoon recess. I don't know whether this

6 is a good time or not. What do you think?

7

MR. AMLONG: We could take one now, Your Honor.

8 Probably better to take one now.

9

THE COURT: Let's take 10 or 15 minutes here.

10

(Thereupon, a short recess was taken.)

11

THE COURT: All right. Mr. Amlong.

12 BY MR. AMLONG:

13 Q

Doctor Lockwood, many men in prison believe that the

14 victim of a sexual assault becomes a homosexual through

15 that event, don't they?

16 A

Yes.

17 Q

Are you familiar with what is called the rape trauma

18 syndrome?.

19 A

Yes.

20 Q

And that was first documented by the nurse and

21 sociologist name Burgess and Holstrom in '74, and they

22 wrote a book called "Rape Victims of Crisis"?

23 A

Yes.

24 Q

The symtoms of the rape trauma syndrome which occurs

25 immediately after the events those symptoms include

Pauline A. Stipes Official Federal Reporter

1 physical pain, and changing in sleeping/ and eating

2 jjattexns.—correct.?

3 A

Yjes.

4 Q

And following the acute stage, rape victims report

5 long term changes in their lifestyle, is that correct?

6 A

I am not sure about the long term. I don't know.

7 Q

Well —

8 A

You are asking me, do they say that there are long

9 term changes?

10 Q

Yes.

11 A

I would say from my reading of the book that the

12 reaction differs quite a bit among the people who they

13 looked at.

14 Q

When you wrote your chapter on the contribution of

15 sexual harassment to stress, and coping, and confinement,

16 you quoted Burgess and Holstrom saying following acute

17 stage, rape victims report long term changes in lifestyle,

18 did you not?

19 A

Yes, but it doesn't mean that all have reported that

20 according to their book.

21 Q

Well, those rape victims describe dream content in

22 which recurring themes are being victimized, and those

23 themes are accompanying by dreams of committing acts of

24 violence on others, is that true?

25 A

I would say again by reading the book which describes

Pauline A. Stipes Official Federal Reporter

<iO9

1 the experiences of a number of victims of heterosexual rape

2 in the free world, experiences varied among them.

3 Q

And you do feel that referring a prison rape victim

4 to the mental health unit for some psychological evaluation

5 would be a pretty good idea, don't you?

6 A 7 Q

Yes, it is a pretty good idea.

—~—'

*—

•

Okay.

8

MR. AMLONG: Nothing further, Your Honor.

9

THE COURT: Any redirect?

10

MR. DAVIS: A few questions, Your Honor.

11

REDIRECT EXAMINATION

12 BY MR. DAVIS:

13 Q

Doctor Lockwood, counsel asked you if men in prison

14 believed that rape altered their sexuality?

15 A

Yes.

16 Q

What is the reality?

17 A

The reality is that in my research, I have not

18 encountered a single case where sexual identity was changed

19 as a result of sexual battery. Other studies, such as

20 Notchi, I find the same thing.

21 Q

Is that another one of the myths or misconceptions

22 which is current among prison population?

23 A

Yes, it is a common might among the prison community.

24 Q

What are the long term effects that have been found

25 and identified in prison homosexual rape victims, that is

Pauline A. Stipes Official Federal Reporter

ilO

1 actual long term effects, not perceived long term effects?

2 A

What do you mean by long term? How long?

3 Q

Why don't you define the term, and tell us?

4 A

Okay. I would say research I have done shows that

5 the effect of the experience begins to diminish as time,

6 goes on. Time is the best cure for it. As time goes on,

7 the effect diminishes, and, in mv opinion, after a period,

8 of three to five months, provided the person is living in a

9 protective environment, fear is not a current concern, that;

10 psychological equilibrium, equilibrium is essentially,

11 restored after a period of three to five months.

12

Now, frhere is a variation on it. and for some people

13 it can be less than that-.. There is a lot of variation on

14 it.

15 Q

Okay. Now, counsel also alluded to the factors that

16 may effect the incidents of rapes in a particular

17 institution. Is a mixture of cultures a factor which plays

18 ta role in the incidents of rapes,?

19 A

Yesf my work shows that, and other work does, also.

20 Q

So that institutions which have populations that

21 evidence cultural heterogeneity would be expected to show

22 higher rates of sexual battery absent other influencingi

23 factors than those institutions with cultural homogeneity?

24 A

Yes.

25 Q

And what do we mean by cultural heterogeneity?

Pauline A. Stipes Official Federal Reporter

1 A

By cultural heterogeneity, I would say we are

2 considering a prison environment that has people from smalli 3 town rural areas, and other people from big cities, and a

4 prison also that has blacks, whites, hispanics, people from

5 different backgrounds, different cultures, different

6 attitudes towards violence.,

7 Q

There was also a question asked you about the non-

8 report of rape, and the reasons for non-report of rape.

9 Have there been studies done on what reasons exist for the

10 non-report of rape by sexual assault victims, or sexual

11 battery victims?

12 A

You mean in the free world or prison?

13 Q

Either.

14 A

In the free world, we have pretty good data for that:.

15

MR. AMLONG: Your Honor, I object to the

16 relevance of this.

17

THE COURT: I don't think it is irrelevant.

18 The objection is overruled.

19

THE WITNESS: In the free world, we have real

20 good data on that. It comes from the National Crime

21 Survey, which I described earlier. That is self report,

22 victimizations survey where women in households were asked

23 \f they were a victim of a forcible rape, if they reported

24 ^t. If they didn't report it, they were asked why, and the

25 /easons that typically emerge about 10, 12 percent of the

Pauline A. Stipes Official Federal Reporter

T women said that they didn't report it because they did not,
2 trust law enforcement officials. They felt they were

3 ineffective, and did not trust them.

4

About 20 percent of the women through the National

5 Crime Survey say that they did not report it because they

6 feared retaliation. Fear of retaliation was a major

7 factor, and then about 13 percent according to the NCSf 8 National Crime Survey, said they did not report it because

9 ^it was a private matter. They said it was a private

10 matter, and would deal with it themselves.

11 Q

Counsel also asked you an opinion about double

12 bunking, and his first question addressed the question of

13 whether double bunking in a confinement, protective 14 confinement facility violated the norm, and was it your 15 testimony that in respect to the norm that that does not 16 violate the norm?

17 A

When I heard the word norm I started to think is it

18 normal, or abnormal. It is my understanding that there are

19 quite a few correctional systems that do have protection as

20 double bunking, and many others that don't.

21

So, if norm means it is abnormal, it is certainly not

22 abnormal.

23 Q

Okay. Though it was your opinion that it was

24 contrary to the recommendations of the ACA?

25 A

Yes, as far as I know.

Pauline A. Stipes Official Federal Reporter

113

1 Q

But not contrary to the norjn?

2 A

Right. Correct.

3 Q

In your tour of the dormitory facilities at Glades

4 Correctional, did you arrive at any perceptions as to the

5 adequacy of the safety, as it might be perceived by inmates

6 in the dormitory facility, with the open bunking situation

7 as it exists today at Glades Correctional with patrolling

8 officers in the dormitory?

9 A

Now, I was only there during the daytime.

10 Q

Right.

11 A

You want me to answer the question what I saw during

12 the daytime?

13 Q

Right.

14 A

When I was there during the daytime, I observed that

15 most of the area was visible. There weren't a lot of

16 clothes lines running across the room, and that, also,

17 inmates, apparently at least at that time, were not allowed

18 to create private areas for themselves, using improvised

19 materials, such as a blanket, or something like that.

20 Q

When you say there weren't a lot of clothes lines,

21 you mean there weren't any clothes lines?

22 A

I didn't see any clothes lines, anything like that,

23 so sight lines were complete.

24

MR. DAVIS: I have no further questions. Thank

25 you.

Pauline A. Stipes Official Federal Reporter

T~

THE COURT: Thank you, Dr. Lockwood, you may

2 step down.

3

(Witness excused.)

4

THE COURT: Another witness?

5

MR. DAVIS: Yes, Chester Lambdin.

6

CHESTER LAMBDIN, DEFENSE WITNESS SWORN

7

THE COURT: State your name.

8

THE WITNESS: Chester Lambdin.

9

DIRECT EXAMINATION

10 BY MR. DAVIS:

11 Q

Mr. Lambdin, could you tell us where you reside?

12 A

500 Orange Avenue Circle, Belle Glade, Florida.

13 Q

By whom are you employed?

14 A

^Florida Department of Corrections.

15 Q

What is your position?

16 A

^Superintendent at Glades Correctional Institution.

17 Q

Could you give the court a brief resume' of your

18 background?

19 A

Yes, I started in 1965 with the department as a

20 Correctional Officer 1 at Glades Correctional Institution,

21 Q

What is a Correctional Officer 1?

22 A

Entry level officer.

23 Q

Is that kind of a private in the rankings?

24 A

That would be similar to a private, yes.

25 Q

If it were a military institution?

Pauline A. Stipes Official Federal Reporter

515

1 A

Yes. I, worked all areas at Glades that~a~^

2 correctional officer would normally work. I work,

3 dormitories, patrol the tours, compound, whatever I was

4 called upon to do. I was promoted, 1967 to sergeant, and

5 worked 7 years as a sergeant at Glades.

6

THE COURT: As a what?

7

THE WITNESS: Sergeant.

8

THE COURT: All right.

9

THE WITNESS: I worked normal duties of a

10 sergeant. I supervised dormitories, patrolling, any other

11 duties that would be part of the sergeant's duties at thant 12 institution. I was promoted as lieutenant, and served as a

13 shift supervisor at Glades for two years, and '76. January, 14 f76, I transferred to Brevard Correctional Institution in.,

15 §tarks. Florida, and I worked six, seven months, and I was

16 promoted to chief correctional at Hillsboro, Tampa. I wa.s

17 chief for five years, and '81, was promoted to assistant

18 superintendent at Polk Correctional Institution, Polk City,

19 Florida, served for approximately two years as assistant at

20 Polk, promoted to superintendent at Dasota Correctional

21 Institution in Arcadia in '84. and in December 16. 1985. Ir 22 was appointed gupprint-pnripnt at Glades, and I have been at

23 Glades since.

24 BY MR. DAVIS:

25 Q

What is your educational background?

Pauline A. Stipes Official Federal Reporter

516

)egree in corrections. Bachelor

2 of Arts in — and Master of Arts in adult education, two

3 year public manager certification from Florida State^

4 University.

5 Q

And you became superintendent of Glades what date?

6 A

December 16th, I was officially appointed,. I didn't

7 get involved. It was over the holidays, and I didn't

8 flxxiye until January, officially. I was appointed December

9 16, '85.

10 Q

And since the time that you were appointed

11 superintendent, did you make an effort to survey the prison

12 which was your assignment?

13 A

¥&s, I did.

14 Q

And what did you do in the course of that

15 familiarization?

16 A

The first thing I did is take a complete tour of the

17 institution on the same day that I was appointed. Arrived

18 at the institution just to look around, and tour the

19 facility, to meet the employees, and inmates, and generally

20 try to commence familiarization process of the institution.

21 Q

Who was ynnr immediate predecessor?

22 A

Randall Music.

23 Q

And what subsequently did you do after taking your

24 position as superintendent in respect to the management of

25 Glades Correctional?

Pauline A. Stipes Official Federal Reporter

517

1 II A

Well, of course, I reviewed all of the institutional

2 operating procedures. All the department directives. I

3 was fairly familiar with the department directives already,

4 but I reviewed all the institutional operating procedures

5 to determine to the best of my ability what we did, how we

6 did it, what needed to be done, what I needed to do to get

7 started.

8

I had to first familiarize myself, because I had been

9 gone for 11 years.

10 Q

Okay. How is Glades Correctional organized

11 structurally for the staff?

12 A

We have an assistant superintendent for programs that

13 is over the education, all of the program areas. We have

14 assistant superintendent for operations who is in charge of

15 the security department, maintenance, and things that deal

16 with the operation r>f the institution, and then I supervise

17 the personnel and business functions, and I jointly — I

18 don't — I don't supervise the medical department, per sef 19 because they are supervised by the Department of Health

20 Services in Tallahassee. I have input into their

21 operation.

22

THE COURT: What was your last comment about —

23 I didn't hear you there. You say you don't supervise the

24 medical facility, that is done out of Tallahassee?

25

THE WITNESS: I supervise operational

Pauline A. Stipes Official Federal Reporter

1 .decisions. I am not authorized to make medical decision.

2 A medical decision arises, and the chief health officer

3 would consult with the regional director, and the chief

4 officer in the regional office. On an operational scale,

5 non-medically, I supervise.

6

THE COURT: All right.

7 BY MR. DAVIS:

8 Q

You indicated that there are two areas of operations

9 that are under your direction. Is the administration of

10 Glades Correctional broken down into departments?

11 A

Yes, it is.

12 Q

What are those departments?

13 A

Those departments consist of the security department,

14 That is the largest department.

15 Q

Who is that headed by?

16 A

Col. Edward Pipta.

17 Q

Okay.

18 A

We have, of course, business department head,

19 personnel manager who is a department head. Maintenance

20 supervisor that is in charge of all the maintenance at the

21 institution, education program manager who is in charge of

22 the academic, vocational programs, and they contract with

23 the board of education for Palm Beach County to provide

24 areas, academic programs for the institution.

25

We have a .recreation therapy director that is in

Pauline A. Stipes Official Federal Reporter

519

1 charge of all the recreational activities at the

2 institution, and, of course, medical department he.aded by

3 the chief health officer and he has a staff physician under

4 him, and various other nurses, about 37 people altogether

5 in the medical department and medical unit, psychiatric,

6 psychology.

7 Q

With the exception of finance and personnel which are

8 under your direct control, is that correct?

9 A

That is correct. They are all indirectly under my

10 control.

11 Q

Those two report —

12 A

Those two report directly to me. and also the.

13 institutional inspector reports directly to me.

14 Q

The other departments report through the assistant

15 superintendents?

16 A

Yes.

17 Q

Who are they?

18 A

Assistant superintendent for operations Willie Floyd.

19 Assistant superintendent for programs is John Townsend.

20 Q

All right. And approximately how many correctional

21 staff are there? When we speak of correctional staff, we

22 are speaking of the security department, is that correct?

23 A

Correction staff would involve any employee. I would

24 refer to it as correctional, security staff.

25 Q

Security staff. How many security staff are there at

Pauline A. Stipes Official Federal Reporter

1 Glades Correctional?

2 A

237.

3 Q

237 at the present time?

4 A Yes.

5 Q

What is the authorized compliment for Glades?

6 A

The authorized compliment is 237, and I haven't

7 checked this week. I have been busy, simply not been

8 there, but we have been within one or two of the maximum

9 level for sometime.

10 Q

So that the Glades Correctional is currently, today

11 fully staffed?

12 A

They are fully staffed with the exception someone ,may

13 have transferred recently. We are essentially at full

14 staff, and have been for a considerable period of time.

15 Q

When you took over Glades Correctional, do you know

16 how many inmates were housed there?

17 A

The maximum capacity was 886.

18 Q

And —

19 A

That is maximum capacity authorized by the Federal

20 Cour£.

21 Q

And you are speaking of the court in Costello?

22 A

Yes. They outlined precisely how many inmates we are

23 able to house as well as all other institutions in the

24 State of Florida, depending on the square footage, and a

25 lot of complicated measurements which I am not totally

Pauline A. Stipes Official Federal Reporter

521 familiar, but they authorize 886.

Q

And do their authorizations which you must abide by

pertain to each dormitory at Glades Correctional?

4 A

They tell you precisely how many inmates you can have

5 j.n each and every dormitory in the State of Florida.

Q

Does that pertain to the number of inmates you ajre

allowed tp have in the confinement areas as well?

8 A

Yes.

9 Q

Dp they control the capacity of the protective

10 confinement area?

11 A

Yejs.

12 Q

And o-s that under the direction and control of the

13 court in Costello?

14 A

yes, it is. They authorize ex-number of inmates for

15 every cell, and every square inch of dormitory housing,

16 cellblock housing in the State of Florida.

17 Q

And what is that authorization with respect toi

18 protective confinement?

19 A

We have 16 beds in protective confinement.

20 Q

How many cells?

21 A

Eight. We have two beds per cell.

22 Q

And that arrangement is the arrangement authorized by

23 yie Federal Court?

24 A

Yes, it is.

25 Q

Now, in addition to the security staff, what is the

Pauline A. Stipes Official Federal Reporter

1 other staffing at Glades Correctional? You have indicated

2 237?

3 A

We have about 350.

4

THE COURT: You mean beside 237 security

5 people?

6

THE WITNESS: No, sir, the total number is

7 approximately 350 which 237 would be security.

8

THE COURT: Okay.

9 BY MR. DAVIS:

10 Q

when you took over at Glades Correctional, do you

11 recall what the training requirements were for correctional

12 officers at Glades?

13 A

Correctional officers must attend a 40 hour trainer

14 program when they are initially hired.

15 Q

Was this in effect when you took over?

16 A

Yes.

17 Q

And —

18 A

In addition to that, they have to complete a

19 Correction Standards Academy the contents of which,

20 curriculum is governed by the State of Florida Division of

21 Criminal Justice Standards and Training.

22 Q

Where is that held?

23 A

At Palm Beach Community College, Glades—

24 Q

Does that academy have faculty that teach?

25 A

They have some of their faculty, some outside

Pauline A. Stipes Official Federal Reporter

£23

1 faculty, some prison people/ and some variety of people

2 that teach the courses. They all have to be certified

3 through the Criminal Justice Training Standards, and meet

4 the Community College Standards for instructors.

5 Q

And what was the training requirement in hours when

6 you^took over. After the basic unit of 40 hours?

7 A

It is constantly changing somewhat. I believe it was

8 in excess of 400 hours. To be precise to the hour, I am

9 not certain. It is in excess of 400.

10 Q

Has it increased since the time you took qverj?

11 A

Yes.

12 Q

Do you know what the current number of hours is

13 prescribed for the course?

14 A

I believe 481. I am pretty sure that is within the

15 hour or two.

16 Q

Do you know what the required number of hours within

17 the State of Florida is?

18 A

In order to be certified?

19 Q

Yes.

20 A

It is considerably less than that. I think it is in

21 t^he neiqhborhood of the 42ft that you have, Palm Beach

22 Community College, and UCI have about 480.

23 Q

In addition to the basic, or initial of 40 hour

24 training program, and then — the initial training program

25 of 40 hours, and the basic training program of 480 hours,

Pauline A. Stipes Official Federal Reporter

,24

what other training is given to the correctional staff at 2 Glades Correctional?

3 A

We have a comprehensive inservice training program.

4 Staff members receive 40 hours of training annually. About

5 n20 to 25 of those hours are mandatory type classes. We 6 have a lot of medical related training that the court says

7 that all correction people in Florida must do. We have

8 training in suicide prevention and awareness and use of

9 force, stress related classes, and runs the whole gamut of

10 training.

11 Q

Does the training include courses in interpersonal

12 relationships?

13 A

Yes, it does.

14 Q

And j.n addition to the required courses, are there

15 ^any self-improvement type courses that are available to the

16 correctional staff?

17 A

Yes, there are. They are called career development

18 courses, and they are generally taught at the Palm Beach

19 Community College, just enables correctional officer to

20 what like it sounds like, career development.

21 Q

Since the time you took over the population has

22 increased at Glades Correctional?

23 A

Yes, it has.

24 Q

What is the current population?

25 A

We are currently authorized by the court to have 1217

Pauline A. Stipes Official Federal Reporter

625

1 inmates^

2 Q

All right. Do you know what today's population is at

3 GCI?

4 A

No, I don't. It is in the neighborhood of 1200. give

5 or take 5 or 10. We lose 20, 25 a week, and gain 20, 25 a

6 week. In the neighborhood of 1200.

7 Q

Okay. In order to accommodate those inmates, what

8 provisions have you made,?

9 A

We constructed one dormitory, and converted a canning

10 plant into two additional dormitories.

11 Q

This is in what is referred to as the north compound?

12 A

Yes.

13 Q

The north compound has a certain security

14 designation?

15 A

We house minimum, medium, custody inmates on the.

16 north compound.

17 Q

What about the main compound, the older?

18 A

Minimum, medium, and close.

19 Q

What is meant by the categories of custody, minimum.

20 medium, close, and, also, maximum custody? Explain what

21 those mean to the court?

22 A

I will start with maximum, then, that is the highest

23 level of custody in the system. Florida State Prison, for

24 example, is a maximum custody institution. Broward

25 cnrrprt-ional institution for females is also maximum

Pauline A. Stipes Official Federal Reporter

526

security institution, flll other institutions to my

knowledge, we have about 40, 42, I believe, are close

custody, from close, down.

Q

What about Martin, does Martin have maximum security?

A

Yes, Martin I believe they have some. I think they

have a combination. I have never been to Martin. I think

7 they have a combination.

8 Q

What does maximum security mean?

9 A

Maximum security means that you, literally, it is

10 almost a lock down situation all the time,

11 Q

And what is the next custody classification of close

12 custody?

13 A

Close custody simply means if you take an inmate

14 outside the perimeter fence at any institution, if he is in

15 close custody, he must have armed supervision.

16

THE COURT: Armed what?

17

THE WITNESS: Armed supervision.

18 BY MR. DAVIS:

19 Q

What is medium?

20 A

Medium custody inmates can be taken outside the

21 perimeter fence under supervision of an officer. He does

22 not have to be armed. He simply accompanies the inmate,

23 and the inmate remains within sight and sound of that

24 c^f f icer .

25 Q

What about minimum?

Pauline A. Stipes Official Federal Reporter

527

1 II A

Minimum custody inmates may be checked out, and"

2 assigned to work details, unsupervised for short period of

3 time. They are the lowest custody in terms of the

4 propensity to escape, and that is really what custody is

5 all about.

6 Q

You refer to custody as concerning propensity to

7 escape. Does it have anything to do with the propensity or

8 likelihood that a particular inmate in a particular,

9 category will commit acts of violence?

10 A

Nqt particularly,

11 Q

Does it have any reference to the crime that the

12 inmate may have committed that got him into prison?

13 A

Custody is determined — inmatesr propensity to

14 ^escape is determined by length of sentence, time served on

15 ^the sentence, h o w much time he has left to serve. The type

16 of crime that he committed is an element in it.

17

Basically, how much time has he served, and how much

18 time does he have left, and are there any factors such as a

19 domestic problem at home, or something that would cause an

2 0 inmates' custody to be raised.

21

If an inmates' wife, for example called, or talked to

22 him, and told him that she was divorcing him, and he would

23 never see her again, then that inmate, even though he might

24 have 30 days to serve becomes close custody, because he

25 wants to go home.

Pauline A. Stipes Official Federal Reporter

528

1 II Q

And in respect to the custody classification/ if an

2 .inmate has committed a nonviolent crime, for instance, such

3 as possession of narcotics, and has just arrived at the

4 institution, just arrived in the prison system, what would

5 his custody classification be?

6 A

Custody classification will normally be close. If he

7 arrives, often times, in a less than close custody status,

8 we would raise the custody after reviewing the background

9 of the inmate to closely observe him for a period of time

10 to insure that he really deserves to be in a reduced

11 custody status, and we simply reduce him back, if he

12 deserves to be reduced.

13 Q

Why is it that the north compound is restricted to

14 medium and minimum security inmates?

15 A

It is restricted to medium and minimum security for

16 one reason, and one reason only. The security systems we

17 have on the north compound, they are not, in my opinion,,

18 and I am the person who has to answer if somebody escapes,

19 in my opinion security arrangements are not quite as strong

20 on the north compound as they are on the maiq.

21

The principal reason is it is not quite as strong has

22 to do with the dormitories. We donft have bars on the

23 windows, for example, and an inmate can get out of the dorm

24 and leave more quickly than he could on the main compound,

25 and the perimeter fence. The way the razor wire, and

Pauline A. Stipes Official Federal Reporter

529

It electronic devices in the fence, it is just not quite as

2 secure in terms of keeping the inmate inside the fence as

3 the main.

4 Q When you speak of the security measures not being as

5 stringent as those on the main compound, are you speaking

6 of the security measures to prevent the inmate from

7 escaping, or security measures to prevent inmates from

8 doing that which they are forbidden to do?

9 A It has nothing to do with what inmates are forbidden

10 or not to do. Simply at the time we designated it as a

11 medium, minimum custody, it was simply because the inmate

12 was more likely to make a successful escape from the nortfr

13 compound than the main,.

14 Q And do you recall if at the time that you became

15 superintendent at Glades Correctional all of the

16

COrrer.t.Ji nnal—gfraff pnsii-inns

17 A I don't know the percentage that weren't, but I know

18 they were not all^filled, a considerable number of them

1 9 wg_rjP» n<">+- f i 11 *»H .

20 Q All right. And in addition, have there been changes

21 in the pay scales of correctional officers since you

22 arrived at Glades Correctional?

23 A Yes.

24 Q Is there a base pay scale which all officers receive

25 in the State of Florida at particular positions?

Pauline A. Stipes Official Federal Reporter

530

"1 A

Yes/ there is.

~

2 Q

Has that increased since you came to Glades?

3 A

The base has increased, and in addition to that,

4 correctional officers in South Florida in Dade, Broward,

5 Palm Beach counties, in particular, there are two other

^ counties, Dade, Broward, Monroe, I believe, and then Martin

7 County, they receive $5,000 annually more than correctional

8 gtaff in other parts of the State..

9 Q

$5,000 supplement?

10 A

Yes, so the competitive area, differential based on

11 the cost of living in South Florida versus the cost of

12 living in North Florida.

13 Q

Have the increases in the salary of the correctional

14 staff occurred since 1987 when the American Correctional

15 Association audit was taken at Glades Correctional?,

16 A

The bulk of the increases have been after f87. I

17 think we had a small increase, and then incremental

18 increases., I couldn't tell you the month the raise

19 occurred, but the bulk of the raise has been since '87.

20 Q

And what has that done in respect to the

21 competitiveness of Glades and its ability to attract

22 correctional officers of competence and good character ij\

23 competition with the other correctional or police agencies

24 in the relevant area?

25 A

Well, first of all, before I answer that, I would

Pauline A. Stipes Official Federal Reporter

•>31
~I like to say I think it needs to be said that Glades has

2 very competent, very professional, very sensitive staff. A

3 lot of them have been there for many, many years, and have

4 done an excellent job over a long period of time under

5 difficult circumstances.

6 Q

Would Sergeant Nappi be an example?

7 A

Sergeant Nappi would be an example, and we have many

8 people there 30 years down, and do an excellent job, and

9 should be commended for that job; however, any time you pay 10 more salary, I think salary is one of the variables that 11 enable you to higher better people in competition with 12 j?ther law enforcement agencies, and we are competitive with

13 the law enforcement agencies in Palm Beach County.

14 Q

There was discussion by Mr. Frey this morning about a

15 situation in '87 where the salaries being paid were not at 16 that time regarded being competitive with the other law 17 enforcement agencies. Are you familiar with the comparison

18 between the other law enforcement agencies in the relevant

19 area, and Glades Correctional?

20 A

Yes, I am. We draw the staff, generally speaking,

21 from the City of Pahokee, City of Belle Glade, cities of

22 S^puth Bay, and Clewiston. Some in Hendry County, but those,

23 four cities generally are the area that we draw the staff

24 from.

25

We pay more than Hendry County. We pay more than the

Pauline A. Stipes Official Federal Reporter

i32

~ I South Bay Police Departmentf more than Belle Glade', 2 slightly, more than Pahokee Police Department, and we are

3 .slightly behind the Palm Beach County Sheriff's Office.

4

But in addition to the salary, a lot of staff at

5 Glades also get housing, bachelors stay in bachelor

6 quarters for $10 a monfrh. We have 14 housing units thajt

7 supplement salary, so we are very competitive, and would

8 pass the standards.

9 Q

Are you familiar with the educational background of

10 the staff at Glades Correctional^at the present time?

11 A

Yes, I am. We did — Personnel did a survey on

12 educational backgrounds, and I don't have it in front of

13 me, but I have it there.

14 Q

Let me show you this, and ask if that is the survey

15 that you refer to?

16 A

Yes.

17

MR. TUCKER: Mr. Davis, may I see a copy of

18 that document, please. Your Honor?

19

THE COURT: Yes, of course.

20

MR. TUCKER: Thank you.

21

THE COURT: Have you got an extra copy for

22 them?

23

MR. DAVIS: I have one extra copy which we need

24 two copies.

25

THE COURT: We can make one for him here pretty

Pauline A. Stipes Official Federal Reporter

533

quick if they need it right now.

2 BY MR. DAVIS:

3 Q

Let me ask you if that survey applies only to the

4 ^correctional officers, or if it applies to the entire

5 staff?

6 A

It applies to the correctional officers only.

7 Q

And that survey is as of what date?

8 A

Int was taken just a few weeks ago, and there is no

9 date on it, so I couldn't be precise when they did it, but

10 it was done in December.

11 Q

And out of the 237 staff in the correctional

12 department, .does it indicate how many are holders of

13 gollege degreejs?

14 A

Yes, it does.

15 Q

And what is that?

16 A

yie have 13 that have BA, or BS Degrees in the

17 security department, one post graduate. Five officers that

18 have had three yearsr. 37 officers that have A.S. Degree, 19 and we have 41 that have anywhere from zero to two years of

20 college.

21 Q

And are all of the members of the staff required to

22 be at least high school graduates?

23 A

Yjes.

24 Q

I notice on the survey that it indicates career

25 development courses, 10,560. What does that refer to?

Pauline A. Stipes Official Federal Reporter

634

1 A

That means out of the 237 correctional officers a

2 £otal of 10,560 hours of career development work for an

3 average of 45 hours per officer.

4 Q

Is that additional criminal justice training over and

5 above the required training for the officers?

6 A

Yes, that is correct.

7 Q

And survey also indicates prior work experience.

8 What was that?

9 A

We have 78 officers that have — are graduates of the

10 military. They served a term in the military.

11

MR. TUCKER: Your Honor, if counsel is going to

12 introduce this document into evidence, I believe that it

13 speaks very clearly for itself. It is quite readily

14 ascertainable as to what information is contained in this

15 document.

16

MR. DAVIS: I think it will take one second to

17 go over it.

18

THE COURT: You can run over it. I suppose you

19 are going to offer it.

20

MR. DAVIS: Yes, Your Honor.

21 BY MR. DAVIS:

22 Q

And it also indicates prior state employment?

23 A

Yes, 54.

24 Q

Is that normally other law enforcement agencies, and

25 the like?

Pauline A. Stipes Official Federal Reporter

635

2 Q

And then the second page refers to the longevity of

3 the correctional staff?

4 A

Yes.

5 Q

And you've broken it down into various class titles.

6 What is the first one there?

7 A

The first one is the colonel, and he is the chief of

8 security.

9 Q

Is that Col. Pipta?

10 A

Yes.

11 Q

How long has he been in service?

12 A

Fifteen years.

13 Q

And then there is an indication of two majors. What

14 is the position of major?

15 A

Colonel is the Chief Correctional Officer 2, and

16 major is Chief Correctional Officer 1. We have a major

17 that is in charge of the north compound, and we have,

18 another major that will soon be in charge of a work camp

19 about a mile away from the institution.

20 Q

Okay. Does the colonel have direct jurisdiction oyer

21 ^he main compound?

22 A

He has direct jurisdiction over all of them.

23 Q

All right. Perhaps I should say, does he have the

24 supervision over the main compound that the major has over

25 the north compound as well as his duties of supervising the

Pauline A. Stipes Official Federal Reporter

636

entire—

2A

Yes_.

3Q

And the average years in service for the majors?

4A

Sixteen.

5Q

Of the captains, what is the number, and average

6 years of service?

7A

Five captains, average 11 years of service.

8Q

And the lieutenants?

9A

Seven lieutenants, with average of fifteen years of

10 service.

11 Q

Position of sergeant, which is, I suppose, the line

12 supervisory officer, basic supervisory officer?

13 A

Yes, it is. We have 47 with an average of nine years

14 in service.

15 Q

And the Correctional Officer 1?

16 A

175 with four years of service.

17

MR. DAVIS: Your Honor, we offer this as an

18 exhibit which would be Ex. No. 40.

19

THE COURT: Any objection?

20

MR. TUCKER: This document is based on hearsay.

21 It is based on a compilation of documents that exist

22 outside what is stated in the courtroom today.

23

THE COURT: Well, I think you might qualify

24 this under the business records rules if you care to, sir.

25 BY MR. DAVIS:

Pauline A. Stipes Official Federal Reporter

i37 ~~I Q Do you maintain custodian supervision of the

2 personnel records of Glades Correctional?

3 A

Yes.

4 Q

And they are under your ultimate custody, and

5 supervision?

6 A

Yes, they are.

7 Q

They are recorded in the normal affairs of Glades

8 Institution?

9 A

Yes.

10 Q

They are maintained in the normal course of business

11 at Glades?

12 A 13 Q 14 A

Yes. Were the figures taken from those personnel records? Yes.

15 Q

Was this prepared —

16

MR. TUCKER: Objection, Your Honor. I also

17 would point out pursuant to Rule 1006, summaries, in

18 Federal Rules of Evidence, originals or duplicates of

19 writings, recordings, which form the basis for a summary

20 shall be made available for examination, and have not been

21 made so available to us, and that this court may order that

22 they be produced in court.

23

MR. DAVIS: Your Honor, if they want all the

24 personnel records to determine these are the correct number

25 of years, we can provide them.

Pauline A. Stipes Official Federal Reporter

138

1

THE COURT: AIT "rights I will require you to

2 j do that if counsel wishes to have it done. With that

3 qualification, we will receive this in evidence. Let him

4 have those things in time for him to do something about it

5 before we get through this hearing. I am hoping to wind

6 this up tomorrow.

7

^Defendant's Ex. 40 received in evidence.)

8

MR. DAVIS: Your Honor, we would also request

9 that the expense of producing them be ordered by the court

10 under the rule. Which provides that the court should order

11 the expense for production of such documents to be borne by

12 the party seeking them.

13

THE COURT: Well, now, this summary, or study

14 that was perform in December ought to have all of these in 15 some fairly small packet of papers, isn't that right? It 16 isn't going to take an inspection of a lot of different 17 sources of information to get this together?

18

THE WITNESS: They had to literally take each

19 personnel file from every officer, and go through it piece

20 by piece.

21

THE COURT: To get the statistical data up?

22

THE WITNESS: Yes. Took us about four days.

23

THE COURT: Well, I am going to require that

24 these personnel records be made available. If you want to

25 go out there and look at them, you could do that.

Pauline A. Stipes Official Federal Reporter

539

1 II

MR. TUCKER: We have two points, Your Honor.

2 Within the specific rule itself, there is not a provision

3 as to costing. On that basis, I don't think we should be 4 taxed cost.

5

THE COURT: I am not taxing cost. I am

6 requiring you to look at them yourself, and not make copies

7 of them, and bring them in here.

8

MR. TUCKER: We also note it would be possible

9 that the clerk or the person who performed the compilation

10 could be made available with regard to this matter.

11

THE COURT: That is probably a good way to go

12 about it. If you could talk to him out there, I don't see

13 any reason why they would have objection to that. You can

14 handle it that way, and maybe it will have to be done after

15 we finish with the hearing. I can't require you to run out

16 there while we are receiving evidence here. I think you

17 are entitled to check these things, and see that they are

18 on the up and up, but I am not inclined to require either

19 side to do a lot of copy work. I think it can be done in a

20 simpler way. I will require you lawyers to cooperate, and

21 get the figures verified in a reasonable fashion.

22

MR. TUCKER: Thank you.

23 BY MR. DAVIS:

24 Q

Incidentally, .when you arrived at Glades, did you

25 review the various post orders, and various standard

Pauline A. Stipes Official Federal Reporter

i40 1 II pperating procedures or internal operating procedures,

2 IOP's, I guess they are called?

3 A

Yes, I reviewed all of it.

4 Q

And^did you, in your opinion, find those to be

5 adequate and sufficient for the operation of a correctiona1

6 institution?

7 A

They were adequate.

8 Q

And at Glades Correctional, are there any types of

9 structural meetings or structured meetings which the

10 administration has for the dissemination of information,

11 and instructions to its staff on correctional matters?

12 A

Yes. I have a weekly meeting with key staff that

13 would include the chief of security of both assistant

14 superintendents, weekend duty officer that is in charge of

15 the institution on the weekend, food service director, each

16 Monday morning, and we review the weekends' events, and

17 talk about things that would have to do for the remainder

18 of that particular week.

19

And then we have department head meetings, as needed,

20 and we write memorandums, and verbally talk to people and

21 tell them what needs to be done.

22 Q

Is there also something called a lieutenant's

23 iaeeHing?

24 A

Yes.

25 Q

What is that?

Pauline A. Stipes Official Federal Reporter

1 A

The lieutenants have a meeting on a monthly basis,

2 and they talk about with the colonel about the various

3 security matters.

4 Q

What is the function or what is the nitch that the

5 lieutenants fit into in the security operation?

6 A

A lieutenant — well, I have to start from the top.

7 The colonel is in charge of the entire compound. The major

8 is in charge of the north compound. We have a captain that

9 is the shift supervisor on the main compound, and a

10 lieutenant who is his assistant. On the north compound we

11 have a lieutenant as shift supervisor.

12

When we talk about lieutenants meeting, we talk about

13 lieutenants and captains.

14 Q

Previously at Glades Correctional, was the officer in

15 charge on a shift a lieutenant?

16 A

Yes.

17 Q

It had subsequently been elevated to the rank of

18 captain?

19 A

Yes.

20 Q

Okay. And did you utilize the medium of these

21 ^meetings in order to instruct your staff on the manner in

22 which you wanted to see the procedures carried out?

23 A

Yes.

24 Q

How did you do that?

25 A

Simply as chairman of any department head meeting, I

Pauline A. Stipes Official Federal Reporter

£42

1 called the meeting, and controlled the agenda, and we would

2 go over the things that needed to be done.

3

In the lieutenants' meeting, the colonel holds the

4 meeting, typically one or both of the assistant

5 superintendents will attend, and myself.

6

MR. DAVIS: Your Honor, at this time, pursuant

7 to the agreement we had last night, we would offer the

8 Inspector General's report into evidence.

9

THE COURT: What number?

10

MR. DAVIS: Exhibit 5, 6, 7, 8.

11

MR. TUCKER: Your Honor, we would object to the

12 inclusion of any — to^-the acceptance into evidence of the

13 qonclusions in any of those documents, once again under the

14 Piper case which we discussed earlier in this day. We

15 would also make for the record a hearsay objection.

16

THE COURT: This is — these are — We are

17 talking about Defendant's 5, 6, 7, 8, all constitutes

18 Inspector General's report?

19

MR. DAVIS: We are offering these as official

20 business records, and we have an agreement it would not be

21 necessary to bring the Inspector General down to

22 authenticate them as official business records.

23

MR. TUCKER: We do have that agreement.

24

MR. DAVIS: As official business record, we

25 offer them for the content. There is no double hearsay.

Pauline A. Stipes Official Federal Reporter

643

1 the only hearsay is the document itselxf, which the business 2 record exception overcomes.

3

MR. AMLONG: Your Honor, if I may be heard for

4 a moment.

5

Piper aircraft, I believe the other party is Raney.

6 That is a case in which Judge Scott when he was a lawyer

7 got the district judge in Pensacola to accept the

8 conclusions of a Navy Crash Inspection Team as to the

9 reasons for the crash. The 11th Circuit said, yes, that

10 could come in as an official investigation under that

11 exception, and the Supreme Court, I believe it was last

12 year, held that while the — the facts found by the

13 investigator may come in, as part of an official business

14 record. The conclusions of the official investigation may

15 not come in.

16

THE COURT: All right. We will have to make —

17 we will have to distinguish between what are facts, and

18 vjhat are conclusions, and what may be hearsay.

19

The ruling also says you can't allow hearsay in under

20 the business exception part of it, is that part of your

21 position?

22

MR. AMLONG: No, your Honor.

23

THE COURT: Mr. Tucker you said you wanted

24 excluded the conclusions and hearsay?

25

MR. TUCKER: Yes.

Pauline A. Stipes Official Federal Reporter

644

1

THE COURT: Even though it is hearsay, if it

2 false within the business exception to the hearsay rule in

3 Federal Rule of Evidence 803, it comes in. It is a general

4 exception to the prohibition of hearsay.

5

MR. TUCKER: We recognize certain validity to

6 the exceptions. We do not want the conclusions accepted by

7 the court.

8

THE COURT: J am assuming the conclusions are

9 fairly easy to identify. We will receive it with the

10 promise we won't consider the conclusions but we will

11 consider the factual statements as well as hearsay.

12

MR. DAVIS: We would ask them to identify any

13 conclusion they find in here. I don't find any conclusion.

14 It is all primary data.

15

MR. TUCKER: Your Honor, when we are provided

16 with copies of that document, we will be happy to provide

17 that information for the court.

18

THE COURT: You don't have copies?

19

MR. DAVIS: They were provided in discovery.

20 They have had them for six months.

21

THE COURT: I will ask you gentlemen, and I

22 might as well ask you now, to give us proposed findings of

23 fact and conclusions of law to make as a result of this

24 Rearing, and I suspect that you would cover it then, that

25 is to point out both of you which parts of this report you

Pauline A. Stipes Official Federal Reporter

545

1 II are talking about that you think constitute conclusions,
2 Mr. Tucker, and you can argue that they donft, Mr. Davis.

3

They are received with the qualification that the

4 record has reflected a moment ago. Do you have any more

5 questions?

6

MR. DAVIS: Yes, Your Honor.

7

^Defendant's Exs. 5,6,7,8 received in evidence.)

8 BY MR. DAVIS:

9 Q

Let me show you what is marked Defendant's Ex. 32.

10 Can you identify what those documents are?

11 A

Yes, you want in general? Security post order for

12 the Correction Officer Chief 2.

13 Q

Is that Col. Pipta?

14 A

That is Col. Pipta.

15 Q

And what does that set forth?

16 A

That sets forth the duties and responsibilities of

17 Chief Correctional Officer 2.

18 Q

Okay. Is that the current post order for that

19 position?

20 A

Yes. And we have the Correctional Officer Chief 1

21 that measures post orders. Vje have the shift supervisor,

22 main, and north compound post order.

23 Q

Are these the current post orders?

24 A

Yes.

25

THE COURT: Are all of these post orders, do

Pauline A. Stipes Official Federal Reporter

.46

1 they describe the qualifications for the particular

2 position? Is that what they do?

3

THE WITNESS: They describe particular duties,

4 and responsibilities of that position.

5

yAnd we have daily roster, main compound,

6 Institutional operating procedure, number 38, which is the

7 control — use and control of arsonal. equipment, and we

8 have the institutional operating procedure 86-44. entitled

9 Use of Force Procedures.

10

THE COURT: Use of Force Procedures?

11

THE WITNESS: Yes.

12 BY MR. DAVIS:

13 Q

The internal operating procedures, are those

14 attachments to the supervisor's post orders?

15 A

Yes. And we have the post orders for the dormitory

16 supervisor on the main compound.

17 Q

What rank is that?

18 A

.Sergeant. And we have the dormitory officer post.

19 orders for dorms A, B, C, and dorm D.

20 Q

That is the main compound?

21 A

Yes. And we have—that appears to be it.

22

MR. DAVIS: Your Honor, we would offer these

23 into evidence as Defendant's Ex. No. 32.

24

MR. TUCKER: No objection, Your Honor.

25

THE COURT: Okay, number 3 2 —

Pauline A. Stipes Official Federal Reporter

i47

1 II

MR. DAVIS: I am sorry, we have a problem with

2 the list and the numbers after 24. It is 30.

3

THE COURT: The number of this exhibit is 32.

4

MR. DAVIS: It is number 32, but number 30 on

5 the list.

6

THE COURT: We are making a new list as we go

7 along here.

8

(Defendant's Ex. 32 received in evidence.)

9 BY MR. DAVIS:

10 Q

Let me show you what has been marked as Defendant's

11 Ex. No. 20?

12 A

This is a fixed capital outlay budget request for

13 fiscal 1987, 1989.

14 Q

For what institution?

15 A

Glades Correctional Institution, and other

16 institutions in this particular region, South Florida.

17 Q

All right.

18

MR. DAVIS: Your Honor, we offer it only with

19 respect to Glades Correctional. Does this include the

20 current —

21 BY MR. DAVIS:

22 Q

What is the fixed capital outlay budget address?

23 A

It addresses major renovations, building, research,

24 poads. major outlays of expenditure.

25

THE COURT: This is for 1987?

Pauline A. Stipes Official Federal Reporter

)48

yjj

THE WITNESS: '87 through '89.

2

THE COURT: All right.

BY MR. DAVIS:

Is there a subsequent one to this, or is it in the

pjrocess of being developed?

In the,

MR. DAVIS: We offer Ex. 20 into evidence.

8

THE COURT: Any objection to that?

9

MR. TUCKER: No objection. Your Honor.

10

THE COURT: All right. It is received without

11 objection.

(Defendant's Ex. 20 received into evidence.)

13 BY MR. DAVIS:

14 Q

Let me show you _Ex. 21 ,_^ and ask you if you recognize

15 that?

16 A

Yes, this is a legislative budget request, 1985, f_87,

17 it is what we term as a mini budget presentation. And it

18 covers the same institutions, and region in South Florida

19 including Glades.

20

THE COURT: What did you say you termed it?

21

THE WITNESS: Mini budget, Legislative budget

22 request. There is also mini budget for '87, '89.

23

THE COURT: Is that part of 21?

24

MR. DAVIS: Yes, Your Honor. We offer these,

25 Your Honor, into evidence as a composite exhibit of the

Pauline A. Stipes Official Federal Reporter

549

T~{| mini budgets from 1985 through '89.

2

THE COURT: Any objection?

3

MR. TUCKER: In thumbing through the document,

4 it appears all the information is relevant to GCI, and with

5 the stipulation that that is so, or that the document will

6 be accepted only for that purpose, we have no objection.

7

THE COURT: All right.

8

MR. TUCKER: Will you stipulate to that,

9 counsel?

10

THE COURT: You agree to that, I suppose, don't

11 you?

12

MR. DAVIS: I am not sure I understand it. It

13 only applies to GCI.

14

MR. TUCKER: I am trying to make certain of

15 that.

16

MR. DAVIS: We don't offer it for any other

17 purpose other than for its application for GCI.

18

THE COURT: It is received with that

19 understanding.

20

MR. DAVIS: There is no ticking bomb in that

21 budget.

22

THE COURT: Okay.

23

(Defendant's Ex. 21 received in evidence..)

24 BY MR. DAVIS:

25 Q

Let me show you Ex. 19, which is also a composite?

Pauline A. Stipes Official Federal Reporter

1 A

Inmate welfare trust fund budget request for '8~^~l

2 '? 0 •

3 Q

'89 and '90, does it include other years as well?

4 A

I was thumbing through it.

5 Q

I have a copy of the original, may be easier to look

6 at?

7 A

Yes, it includes also fiscal year '88, '89.

8

THE COURT: Inmate welfare fund budget request?

9

MR. DAVIS: Inmate welfare trust fund budget

10 request.

11

THE COURT: Where does the money come from to

12 fund that kind of thing?

13

THE WITNESS: yie have several inmate canteen

14 operations on the institution, and we put the profit from

15 those sales back into the inmate budget to purchase

16 recreational and various other equipment for the inmates.

17

THE COURT: Is this the money into which —

18 this is the fund into which the money is recovered from

19 inmates when they are attempting to traffic in contraband

20 goes?

21

THE WITNESS: Yes, Your Honor.

22

MR. DAVIS: Is that a major portion of the

23 funds?

24

THE WITNESS: No.

25

THE COURT: I dare say it is minor.

Pauline A. Stipes Official Federal Reporter

651

~~I

THE WITNESS: We have the fiscal year '87, rW^

2 inmate welfare budget.

3

MR. TUCKER: Your Honor, at this point it

4 appears that these documents are getting far away from the

5 issues that have been the subject of our business here this

6 week. We object both based on materiality, and relevance.

7

THE COURT: I will overrule that objection. I

8 don't know if they are a great deal of help, but seems to

9 me under 401, they are probably admissible. I will receive

10 number 19 over objection of counsel for the defendant as

11 stated in the record.

12

(Defendant's Ex. 19 received in evidence.)

13

MR. DAVIS: All right, Your Honor, thank you.

14

THE COURT: Is that it?

15

MR. DAVIS: Your Honor, that is it for the

16 documents which I have here.

17

THE COURT: Will you have any other questions?

18

MR. DAVIS: I have a few other questions which

19 are connected with other documents which I do not have

20 here, which will probably not take more than 15 minutes to

21 cover.

22

THE COURT: Do you have any other witnesses

23 after that?

24

MR. DAVIS: After this, Your Honor, all of our

25 witnesses are short witnesses. We anticipate calling

Pauline A. Stipes Official Federal Reporter

552

tomorrow Doctor Rodriguez, and he should be very short. He

2 is on one issue only, one point only. And we anticipate

3 calling a number of the instructional staff at GCI. His

4 name is Mr. White. He will be very brief, I think. We

5 anticipate calling a public — an employee of Palm Beach

6 County School Board who teaches at GCI, he should be very

7 brief also, Mr. Daniels. We will call either Captain Hicks

8 or Col. Pipta briefly, and we have an inmate Your Honor,

9 whose name I don't recall who again is rather brief. His

10 name is Bryant, Your Honor. We may have the current prison

11 inspector.

12

I don't anticipate direct examination on any of these

13 individuals to take more than 20 minutes, and probably

14 almost all the cases will take less than 10 minutes.

15 Cross-examination may take a bit of time. I doubt any of

16 them will take more than 20 minutes all together.

17

THE COURT: All right. We can't get started

18 until 9:30. We have a calendar call 9 o'clock. Let's plan

19 to be back 9:30. You have about a half dozen witnesses.

20 It looks like we will be lucky if we get through them all

21 before lunch anyway, maybe we will.

22

I don't suppose either of you have proposed findings

23 for us at this time, do you.

24

MR. DAVIS: No, Your Honor. I am on a trial

25 docket that started in November in front of Judge Zlock,

Pauline A. Stipes Official Federal Reporter

653

1 and there is no telling when we will be called. I am

2 constantly in preparation for that. I am supposed to start

3 a major trial January 23 in Circuit Court, and I am

4 supposed to prepare a brief in respect to a 40 some page

5 appellant's brief in the next 10 days. I have been

6 juggling things.

7

THE COURT: Okay. Well, as soon as you can get

8 those things together. Sounds like you have a full plate

9 to take care of.

10

MR. DAVIS: Many days during the past two

11 weeks, I have not seen the exterior of my house in

12 daylight.

13

THE COURT: Probably not.

14

MR. LIPMAN: Your Honor, if we were to submit

15 findings of fact and conclusions of law we would want the

16 transcript. She is smiling or groaning?

17

I just have the feeling the case is bound towards

18 Atlanta.

19

THE COURT: Well, it is really already on

20 appeal. They knocked it back down here to tell us to get

21 the injunction thing wrapped up.

22

MR. LIPMAN: If we could have 20 days or 30

23 days after receipt of the transcript.

24

THE COURT: I guess we will have to live with

25 that. The problem with me, I forget everything.

Pauline A. Stipes Official Federal Reporter

1)54

1 II

MR. LIPMAN: We will remind you what you have

2 heard.

3

MR. DAVIS: 30 days is fine. That is

4 disciplinary confinement that the court reporter feels she

5 is in.

6

THE COURT: All right. We will work this out

7 for the time you need, and Pauline needs. We will be in

8 recess until 9:30.

9

(Thereupon, a recess was taken 5:15 p.m.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

 
 ¡55

UNITED STATES DISTRICT COURT

FOR THE

2

SOUTHERN DISTRICT OF FLORIDA

3

4

5 ANTHONY LaMARCA, et al.,

6 7 VS.

Plaintiffs,

Case No.82-8196 Civ- PAINE

8 CHESTER LAMBDIN, et cetera.,

)

Defendant.

-x

9

10

West Palm Beach, Florida

11

January 12, 1990

12

9;OO a.m.

13 APPEARANCES:
`"lti.

14

DAVID MICHAEL LIPMAN and WILLIAM ROBERT AMLONG,

ESQS., on behalf of the Plaintiffs.

15 MICHAEL B. DAVIS and WALTER M. MEGINNISS,

16

ESQS., on behalf of the Defendants.

17

18

19

The above-styled case came on for Trial before

the Hon. James C. Paine, U.S. District Court, at the U.S.

20 Federal Courthouse, West Palm Beach, Florida, on the 12th

day of January, 1990.

21

VOLUME 5

22

23

24

25

Pauline A. Stipes Official Federal Reporter

556

1 ||

INDEX

2

WITNESS

DIRECT

CROSS REDIRECT RECROSS

CHESTER L·AMBDIN 614

690

720

COL. EDWARD PIPTA 727

738

DR. RODRIGUEZ

740

754

GARY LANE

7 59

764

8 RONNIE WHITE

766

772

772

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

I¯

THE COURT: Mr. Davis, Mr. Meginniss, are you

2 ready to call another witness?

3

MR. DAVIS: We have Mr. Lambdin on the stand,

4 your Honor.

5

THE COURT: Yes, that's right.

6

Mr. Lambdin, you will be testifying under the same

7 oath you took yesterday, be seated. State your name for

8 the record.

9

THE WITNESS: Chester Lambdin.

10

DIRECT EXAMINATION - Continued

11 BY MR. DAVIS:

12 Q

Mr. Lambdin, let me show you an item which we will

13 mark the next numbered defendant's exhibit?

14 A

Yes, that is a facility profile of Glades

15 Correctional Institutional that shows the various

16 buildings, and make-up of the institution.

17 Q

When you say facility profile, is that a diagram or

18 map of the facility?

19 A

It is a map of the facility, and alleged function of

20 the building.

21

MR. DAVIS: Your Honor, we offer this as the

22 next numbered exhibit.

23

THE COURT: Have you seen it?

24

MR. TUCKER: Yes, we have no objection.

25

THE COURT: All right. 41 is received.

Pauline A. Stipes Official Federal Reporter

Ó58

¯T

.(Defendant's Ex. 41 received into evidence.)

2 BY MR. DAVIS:

3Q

Does 41 exhibit the current layout of Glades

4 Correctional Institutional?

5A

Yes, I believe so.

6Q

Now, Mr. Lambdin, did you, pursuant to my request,

7 review the GCI records for the dorm assignments for an

8 inmate named George Jonas?

9A

Ye_s, I did.

10 Q

Let me show you an item marked^Ex. 42, and ask if

11 that is the record?

12 A

Yes,rthat is an internal movement — computerized

13 internal movement sheet that shows the housing assignment,

14 work assignment, etc.,^of Inmate Jonas during the entire

15 time he was at Glades Correctional Institution.

16 Q 17 A

Is this one of the records of Glades Correctional? Yes.

18 Q

And this is maintained as a computerized official

19 record of Glades?

20

Yes.

21

MR. DAVIS: Your Honor, we offer Defendant's 42

22 into evidence.

23

THE COURT: How is that document described?

24

MR. DAVIS: This is a computerized internal

25 movement record for the Inmate George Jonas.

Pauline A. Stipes Official Federal Reporter

659

¯¯T

THE COURT: Counsel for the plaintiff, what is

2 your position?

3

MR. TUCKER: May we have a moment, Your Honor?

4

THE COURT: Yes.

5

MR. DAVIS: If it will help, I will ask him to

6 explain it.

7

MR. AMLONG: That would help, yes.

8 BY MR. DAVIS:

9 Q

There are several columns, does Mr. Jonas' name

10 appear?

11 A

Yes, his committed name, and DC number.

12 Q

There is a column headed date, and a column next to

13 JLt headed LOC period. What does LOC stand for location?

14 A

It stands for location.

15 Q

Would you explain the connection between those two

16 columns?

17 A

The date would indicate the date he was assigned to

18 that particular location.

19 Q

And what does the location indicate. 6/4/84, the

20 location is B-009. What does that mean?

21 A

It indicates that Jonas resides bunk 9.

22 Q .And this?

23 A

D bunk number 233.

24 Q

And when was t h e l a s t o c c a s i o n when Mr. J o n a s was

2 5 £;ver a s s i g n e d t n n rlnrmi t¯nr_y?

Pauline A. Stipes Official Federal Reporter

¢6O

1 Ã 2 Q

August 22,¯1985. .Was that prior to your becoming superintendent at

3 .GCI?

4 A

Yes.

5 Q

At any time while you were superintendent at GCI,

6 which was any time subsequent to January, 1986, was Mr.

7 Jonas ever assigned to D dormitory?

8 A

No, sir.

9

MR. DAVIS: Your Honor, we offer this as Ex.

10 42.

11

THE COURT: All right. What is the position of

12 opposing counsel with respect to that document?

13

MR. TUCKER: We have no objection. Your Honor.

14

THE COURT: It is received without objection.

15

(J3ef endant' s Ex. 42 received into evidence. )

16 BY MR. DAVIS:

17 Q

Mr. Lambdin at any time since you have been

18 superintendent at GCI, has the dorm security staff

19 assignment for D dorm ever consisted of less than two

20 security guards on the two night time shifts?.

21 A

That is correct. Qur policy is one in the day time,

22 and two night.

23 Q

Two at night?

24 A

Yes.

25 Q

Has that been the case ever since you have been the

Pauline A. Stipes Official Federal Reporter

17 ¿upe rintendent at

2A 3Q
4A

Yes. Do you ever have more than two assigned?
XSS'

5Q

Do you ever have less than two?

6A

rjo.

7Q

Does the same apply to dorms A, B, C, in the main

8 compound?

9A

Yes.

10 Q

Let me show you what will be offered as Defendant's

11 Ex. 43 in evidence and ask you to indicate to the court

12 what that is?

13 A

This is an internal disciplinary report written on

14 inmate Joe Deshields.

15 Q

And what is the — Is that a document which is an

16 official record of Glades Correctional Institutional?

17 A

Yes, it is.

18 Q

That is an official document, public document?

19 A

Yes, it is.

20 Q

Does that document indicate that Mr. DeShields

21 receive disciplinary action?

22 A

Yes, it does.

23 Q

And, for what particular event did he receive

24 disciplinary action?

25 A

He received disciplinary action—

Pauline A. Stipes Official Federal Reporter

T

MR. TUCKER: Objection, Your Honor, this

2 document speaks for itself. There is no reason for the

3 witness to describe what the document itself states.

4

THE COURT: Objection sustained.

5

MR. DAVIS: We offer it into evidence, Your

6 Honor, Ex. No. 43.

7

MR. TUCKER: .No objection, Your Honor.

8

THE COURT: Received without objection.

9

(Defendant's Ex. 43 received in evidence.)

10

THE COURT: Now, that is being offered in

11 respect to Joe Deshield?

12

MR. DAVIS: Joe Deshield particularly in

13 reference to the testimony of Mr. Jonas.

14

THE COURT: All right. Let me see that map.

15 BY MR. DAVIS:

16 Q

Let me show you what we will offer as^Ex. 44 in

17 evidence on behalf of the defendant and ask you if you

18 recognize that?

19 A

Yes, this is a request for administrative remedy or

20 appeal filed by Inmate Mark C. White of the Glades

21 Correctional Institutional dated April 5, 1989, and it has

22 J:wo pages.

23 Q

All right. Did you review all files at GCI

24 pertaining to correspondence received from Mark White to

25 the administrative staff from early — from 4/1/89, through

Pauline A. Stipes Official Federal Reporter

663

¯ l 4/5/89?

2 A

Yes.

3 Q

Was there any other document besides this received

4 from him?

5 A

Yes, we received additional documents, various staff.

6 Q

Were any of them received during that particular time

7 period, from 4/1, or 4/4/89?

8 A

I believe they were. I will have to check. I don't

9 know.

10 Q

Okay.

11

MR. DAVIS: Your Honor, we would offer this

12 into evidence as Ex. 44.

13

THE COURT: Any objection to that?

14

MR. TUCKER: Your Honor, this material, the

15 subject hasn't come up before. I don't see the relevance

16 of this matter to the business at hand this week.

17

THE COURT: What is the purpose of offering

18 this document, sir?

19

MR. DAVIS: This is the document submitted by

2 0 Mr. White immediately after his report of alleged sexual

21 assault, and we feel that it reflects his state of mind at

22 the time. It will be tied-up with other evidence in

23 addition.

24

THE COURT: This is an appeal or request for

25 administrative remedy.

Pauline A. Stipes Official Federal Reporter

i>64

MR. DAVIS: Right, authored by him.

2

THE COURT: The date of his problem was April

3 4th, and this date is April 5th.

4

MR. DAVIS: Right.

5

THE COURT: 1989.

6

MR. DAVIS: Right.

7

THE COURT: What is the basis for the

8 objection?

9

MR. TUCKER: Relevance, Your Honor. Even if

10 the purpose is to show the state of mind, it shows possibly

11 a state of mind regarding one issue at one point in time

12 following the rape. Other than that, this has no relevance

13 to the issue here at hand.

14

THE COURT: I will receive it over objection o,f

15 the plaintiff as to the relevance objection.

16

MR. DAVIS: Thank you, Your Honor.

17

(Defendant's Ex. 44 received into evidence.)

18 BY MR. DAVIS:

19 Q

Mr. Lambdin, did you have occasion to review the

20 disciplinary reports for the one year period of December,

21 3.988 through December 1989?

22 A

Ye s.

23 Q

Let me hand you what would be offered into evidence

24 as the next numbered exhibit for the plaintiffs which I

25 believe will be 46 —

Pauline A. Stipes Official Federal Reporter

665

~l

THE COURT: Next number is 45.

2

MR. DAVIS: 45_.

3

THE WITNESS: It appears to be a series of

4 internal disciplinary reports.

5 BY MR. DAVIS:

6 Q

Do these relate to apparent voluntary sexual acts at

7 GCI during that time frame?

8

MR. TUCKER: Objection, Your Honor, once again,

9 the documents speak for themselves.

10

THE COURT: The objection is sustained.

11

MR. DAVIS: I think, Your Honor, we are

12 entitled to identify the scope that the document serves.

13

THE COURT: Well, I think you have already

14 identified them as a series of internal disciplinary

15 reports. Beyond that, you are revealing the content of

16 them before they are received in evidence.

17

MR. DAVIS: Okay.

18

MR. AMLONG: Your Honor, as to all of these

19 prison documents coming in, we are additionally objecting.

20 This goes to 44 as well as to these items to the hearsay

21 within hearsay.

22

Obviously, these are official records, and can come

23 in that way, but, for example, on the one about Mr. White,

24 there are the observations by — it is signed by the

25 superintendent, and says I talked to Lt. Peters, and Lt.

Pauline A. Stipes Official Federal Reporter

i>66

¯T Peters said the reason you are in confinement because you
2 were using drugs. We are objecting not to the document

3 coming in as an official record, but we are objecting to

4 the hearsay within that document being offered for the

5 truth of any matter that it asserts.

6

MR. TUCKER: With regard to Defendant's 45,

7 there are numerous examples of hearsay within hearsay in

8 each of the reports when inmates are — when alleged

9 statements of the inmates are included in the document

10 itself.

11

MR. DAVIS: _We are not offering it to prove the

12 assertion by the inmates, the truth. We are offering it to

13 establish that at GCI inmates are engaging in voluntary

14 sexual acts do receive disciplinary punishment. These were

15 ¿he items that the plaintiffs' expert Swanson testified

16 _with respect to some of them.

17

THE COURT: All right. I will receive it for

18 _the limited purpose of supporting the position that

19 disciplinary action is taken for consensual homosexual

20 acts. I guess that is what you are talking about.

21

(Defendant's Ex. 45 received into evidence_. )

22

MR. DAVIS: There are acts in here of

23 heterosexual, and some single individuals, the vast

24 majority are homosexual acts involving two males.

25

THE COURT: All right.

Pauline A. Stipes Official Federal Reporter

Õ67

T¯

MR¯¡ AMLONG: Does your limited admissibility

2 also extend to Ex. 44?

THE COURT: Yes.

4

MR. DAVIS: Your Honor, I have handed counsel

5 copies of documents which are pursuant to our agreement.

6

THE COURT: Are you referring to exhibits we

7 already received.

8

MR. DAVIS: Exhibits that we received yesterday

9 that we did not supply to counsel yesterday. Exhibits 6,

10 7, 8.

11

THE COURT: That is correct.

12

MR. TUCKER: That is correct.

13

THE COURT: Okay.

14 BY MR. DAVIS:

15 Q

Let me next show you an item which we marked

16 Defendant's Ex. 30 and ask you if you can identify that?

17 A

Yes, that is institute operating number 4, inmate

18 control, and accountable procedure^.

19 Q

Does this document accurately reflect t h e —

20

MR. TUCKER: Excuse me, Your Honor, I don't

21 believe we have a copy of this document.

22

MR. DAVIS: Oh, I'm sorry.

23 BY MR. DAVIS:

24 Q

Does this accurately reflect the current Glades

25 Correctional Institutional operating procedure on inmate

Pauline A. Stipes Official Federal Reporter

control and accountability?

A

Yes.

Q

Is this again an official record of Glades

Correctional?

A

Yes.

MR. DAVIS: Your Honor, we would offer this

into evidence. It is an official record.

8

MR. TUCKER: We have no objection ,to this

9 document, Your Honor.

10

THE COURT: What is the number of it,

11 Defendant's 30?

12

MR. DAVIS: Defendant's 30.

13

THE COURT: Received without objection.

14

(Defendant's Ex. 30 received into evidence,)

15 BY MR. DAVIS:

16 Q

Let me show you what is marked into evidence

17 pefendant's 31?

18 A

This is institution operating procedure 8856,

19 entitled Search or Seizures..

20

MR. TUCKER: Your Honor, before we proceed, I

21 have had a chance to peruse Defendant 30, and there is a

22 page missing from this document, page 36.

23

THE COURT: Page 36 is missing?

24

MR. TUCKER: Yes.

25

THE COURT: I am looking at this exhibit. I

Pauline A. Stipos Official Federal Reporter

Ç69

1 don't see where the"pages are numbered.

2

MR. TUCKER: There are pages at the very back.

3

MR. DAVIS: I have 36 on mine.

4

THE COURT: There isn't any 36 in this one that

5 has been handed to me either. Between 35, and 37 there is

6 nothing.

7

MR. DAVIS: When it went through the copy

8 machine, it didn't copy the double page.

9

MR. AMLONG: Your Honor, this could be solved,

10 if what these pages are sections excerpted from 33-3.0082

11 of the Florida Administrative Code, and if Mr. Davis wishes

12 to ask the court to judicially note that section of the

13 code, we would have no objection.

14

THE COURT: Well, it would be a lot easier for

15 us. We don't have it in our library for you to give us a

16 copy of it. We don't have Florida Administrative Code.

17

MR. TUCKER: it appears there may be more than

18 one page missing, but that page I specifically noted.

19

THE COURT: Check it over before we get to

20 reading these things, and be sure it is all complete. I

21 think that is all you need to do.

22 BY MR. DAVIS:

23 Q

Now, since you became the superintendent at Glades

24 Correctional Institution, have you had occasion to review

2 5 the policies at GCI with respect to the patrolling of the

Pauline A. Stipes Official Federal Reporter

670

1 .dormitories by the correctional staff?

2 A

Yes.

3 Q

And what is the policy in respect to the patrolling

4 of the dormitories?

5 A

Each officer has been issued, signed for and trained

6 in the post orders for that dormitory assignment. Those

7 post orders require him to patrol that dormitory, make

8 ^security checks, make inmate counts throughout the night.

9 vTo patrol on an irregular basis, and move about the 10 dormitory in a continuance program and checks throughout

11 the dorm. µe 4o_gj5 have to go in the wicket to make phone

12 calls, and call security check-in, and various other

13 things, but post orders are marked.

14 Q

Does he also have any function with medicines in the_

15 wicket?

16 A

Jfes. The Federal Court in Costello v. Dugger

17 requires that we have over the counter medications, such as

18 Tylenol, in the dormitory, and issue the Tylenol and other

19 j3TC medications to inmates.

20 Q

Did you also have occasion to review the sexual

21 assault policy in effect at Glades when you became

22 superintendent?

23 A

Yes, I did.

24 Q

And what did you determine in respect to the sexual

25 — rape and sexual assault policy in Glades at that time?

Pauline A. Stipes Official Federal Reporter

671

1 Ã

I determined that we did, in fact, have an adequate

2 policy, procedures were good. I reviewed the files, and

3 determined that allegations were investigated, local law,

4 enforcement officials were contacted in appropriate cases;

5 and in appropriate cases, the investigations were sent to

6 the State's Attorney, and there was, in fact, at least one

7 prosecution.

8 Q

And did you make any alterations in those policies

9 after you had reviewed them?

10 A

Yes;, I did.

11 Q

And what alterations did you make?

12 A

I changed that they were, in fact, conducting rape

13 kit tests at the institution clinic.

14 Q

This is prior to your arrival?

15 A

Prior to my arrival.

16 Q

What change did you make with respect to that?

17 A

I assured that the rape test kits would be submitted

18 by the emergency room physician at Glades General Hospital..

19

^nd I made two changes, in addition to the change on

20 the rape test kit. I insured that each allegation, each

21 and every allegation would automatically be reported to the

22 State's Attorney.

23

MR. TUCKER: Your Honor, I didn't understand

24 the end of the phrase there.

25

(Answer read by the Reporter as above-recorded.)

Pauline A. Stipes Official Federal Reporter

672

~ I BY MR. DAVIS:

2 Q

In respect to the lighting in confinement, have you

3 _at any time subsequent to the American Correctional

4 Association audit, have occasion to review and make any

5 determination in regard to the lighting in confinement?

6 A

Yes, I have.

7 Q

And what was that?

8 A

We slightly upgraded the wattage and the light bulbs

9 to conform to the 20 foot candle requirement of ACA.

10 Q

Did you have that tested to see if it did conform?

11 A

Yes.

12 Q

There is today a public address system at Glades

13 Correctional Institution, is that correct?

14 A

That is correct.

15 Q

Was that something which you added?

16 A

Ye_s.

17 Q

Would you explain to the court how that public

18 address system operates?

19 A

It operates primarily to enable us to contact inmates

20 via the public address system and advise them of various

21 places that we want them to go and assist in the inmate

22 movement within the institution.

23

As a secondary benefit, we are able if the perimeter

24 or tower of officers were to see a small group of inmates

2 5 gathering that could potentially cause u s p r o b l e m s , they.

Pauline A. Stipes Official Federal Reporter

673

1 could make an announcement, and disburse those inmates..

2 Q

Is that a loud speaking system over the entire

3 compound?

4 A

Yes.

5 Q

Did you review the policies with respect to the

6 control of contraband when you took over at Glades

7 Correctional Institution?

8 A

Yes, I did.

9 Q

And what did you determine with respect to the

10 contraband control policies when you took over?

11 A

I determined they were adequate, and they were good,

12 effective in the policy.

13 Q

j)id you find it necessary to change any of the

14 policies themselves?

15 A

No, sir.

16 Q

What about the manner in which the policies were

17 carried out, did you do anything in respect to that?

18 A

Yes, I wanted to make absolutely sure that we

19 complied with the search and control of contraband of the

20 policies. Wanted to make sure that we were aggressive in

21 pursuit of the contraband in conducting searches, and be

22 sure we documented everything we did.

23 Q

What measures are taken in respect to the control of

24 contraband entering into Glades Correctional Institutional?

25 A

There are four ways that people introduce drugs into

Pauline A. Stipes Official Federal Reporter

¢74 institution. The first method is to throw the 2 ^contraband across the fence. Generally, they might put it

3 in a golfball, or softball, or roll it up in a small piece

4 of tape, takes two, three seconds to toss it across the

5 fence in a secluded spot, and somebody runs, and picks it

6 up, and tries to get away with it.

7

What we did to control that, on visiting day we have

8 officers that watch the fence line. We have our perimeter

9 patrols, and tower officers alert to constantly watch the

10 fence to make sure if, indeed, anyone does attempt to throw

11 anything across the fence, that we are aware of it, and

12 take steps to stop it. They continue from time to time to

13 throw it, and we continue from time to time—not from time

14 to time, we continue to catch it. I am sure that some are

15 successful in that area.

16 Q

With respect to the control that you mention, and

17 watch towers, are they in effect on days other than

18 visitor's days?

19 A

Yes. The second method of introduction, in any

20 institution not only GCI, would be staff, and what we did

21 to insure that we control that method is to have a good 22 training program to train all correctional staff about the

23 ways that inmates manipulate staff, and arrange for them to

24 introduce various contraband items. We conduct searches.

25 If we receive information that a staff member might be

Pauline A. Stipes Official Federal Reporter

1 bringing something^TrTto the compound, ve conduct a strip

2 search. We conduct periodic strip searches of the entire

3 correctional shift on a periodic and often basis.

4 Q

Have there been any prosecutions of staff?

5 A

We prosecuted one clerical staff member ¾nd one

6 officer and it has been two, three years ago. It has been

7 a long time ago.

8 Q

And what are the other methods of introduction, and

9 responses?

10 A

The third method would be to introduce contraband

11 ¿hrough outside work details. Inmates that have to, by

12 necessity, check out of the confines of the institution,

13 and we have about 5,000 acres of land, a lot of places that

14 inmates have to work. Inmates, they try and bring

15 narcotics to vehicles, lawnmowers, gas tanks, things of

16 that nature. fTo combat that, we conduct patting down 17 searches of inmates when they enter back into the

18 institution. We conduct periodic strip searches, and any

19 time we develop information that an inmate may be bringing

20 something in, we conduct a strip search.

21 Q

Are efforts taken to obtain information from

22 confidential informants on the compound? ^

23 A

Very much so.

24 Q

Do you yourself have any confidential informants on

25 the compound?

Pauline A. Stipes Official Federal Reporter

676

1 Ã

ï have šome^

~

2 Q

Does that also pertain to other members of the staff?

3 A

Yes.

4 Q

And what other methods are there?

5 A

The fourth method is for visitors to bring contraband

6 into the institution. Normally, during routine visiting

7 days, family members, other people who have been approved

8 to visit the inmate, and what we do to control that is whe¿n

9 an inmate goes to the visiting park and visits with a

10 family member, prior to entering back into the compound, we

11 conduct a thorough strip search of that inmate.

12

Visitors are periodically strip searched as we

13 develop information that they might be bringing contraband

14 .into the institution.

15 Q

Do you strip search all visitor,s?

16 A

No, sir.

17 Q

Why is that?

18 A

Because we have been — We are not permitted to doi

19 so. If a person comes to the institution and requested a

20 visit, and we developed information that they may be

21 carrying contraband, we can strip search them before we lat

22 them enter. If they decide they do not want to be strijp

23 searched, we are not permitted to conduct a strip search.

24 They have an option of leaving.

25 Q

Have you ever developed any difficulty over the

Pauline A. Stipes Official Federal Reporter

i577

T search procedures?

~

2A

Yes, we have had probably the most complaints I have

3 had in my four years. Typically would involve searches of

4 visitors and inmates. Typically on a Monday morning I

5 would get a phone call from some irate visitor complaining

6 about the search procedures, and why we were going too far

7 in our efforts to search people. We have had lawsuits

8 j:iled in the State Court, Federal Court, by inmates

9 challenging, alleging that we were too aggressive in our

10 search procedures.

11 Q

Let me show you another item which we will offer into

12 evidence as Defendant's Ex. No. 46f and ask you if you

13 recognize these items?

14 A

Yes, they are internal incident reports prepared by

15 staff involving largely search procedures.

16 Q

Okay. And would you identify the time frame that

17 they cover?

18 A

The first one is dated January 22, 1986 through July

19 2, 1989.

20

MR. DAVIS: Your Honor, we offer this into

21 evidence as a composite exhibit.

22

MR. TUCKER: First, Your Honor, we ask for what

23 purpose this is offered.

24

MR. DAVIS: JThis is offered to show that

25 searches are conducted and that they are to the extent;

Pauline A. Stipes Official Federal Reporter

1 .reflected herein, and that contraband is searched for, and

2 intercepted.

3

MR. TUCKER: As long as these documents are

4 offered for the sole purpose, and not offered for the

5 purpose of the truth of the statements of any of the

6 inmates, nor of the conclusions of the investigations

7 contained therein, we do not have an objection.

8

MR. DAVIS: I don't believe any of these, to my

9 knowledge, refers to anybody for that. We are not offering

10 j,t for the purpose of any substantive information against

11 any individual.

12

THE COURT: All right. T,hey will be received

13 for that limited purpose.

14

(Defendant's Ex. 46 received into evidence.)

15

MR. DAVIS: That i s —

16

THE COURT: 46. You mentioned an Ex. 31. I

17 don't have a note that it was offered.

18

MR. DAVIS: Okay. 31.

19

THE COURT: That is the one before this,

20 whatever it was.

21

MR. DAVIS: These are search procedures. That

22 is when there was an objection made to Ex. No. 30, and we

23 got side tracked.

24

THE COURT: Yes, I think so.

25

MR. TUCKER: Your Honor, counsel has now

Pauline A. Stipes Official Federal Reporter

679

1 provided a copy of Ex¯.30, and we had additional pages

2 missing, and the copy that we were provided, those being

3 34A, and 38, and the 160, all of those coming at the rear

4 of the document, and we would — .

5

THE COURT: You are talking about Defendant's

6 30?

7

MR. TUCKER: Yes, we are. And we want to

8 insure that we will be provided a complete copy of that

9 document.

10

THE COURT: All right. Well, that we've done

11 already. We have instructed counsel to make it accurate.

12 Both the one in evidence, and the copy that is furnished to

13 opposing counsel.

14

Right now I want to know what about Defendant's 31.

15 Is there such a thing?

16

MR. DAVIS: Yes, Your Honor.

17 BY MR. DAVIS:

18 Q

Mr. Lambdin, you have 31?

19 A

Yes.

20 Q

What is that?

21 A

institution operating procedure, 3860, search

22 procedures..

23 Q

Is this the internal operating procedure for Glades

24 Correctional?

25 A

Yes,itis.

Pauline A. Stipes Official Federal Reporter

680

1 Q

is this the current IOP for Glades Correctional?

2 A

Yes.

3

MR. DAVIS: We offer this as Defendant's 31.

4

THE COURT: Any objection to that?

5

MR. TUCKER: Counsel, was this procedure

6 promulgated in 1988?

7

THE COURT: Is there any objection to this

8 document?

9

MR. DAVIS: We are offering it into evidence.

10

THE COURT: Any objection?

11

MR. TUCKER: What is the purpose for which it

12 is offered?

13

MR. DAVIS: To establish internal operating

14 procedures at GCI on special searches.

15

MR. TUCKER: As of September 1988?

16

MR. DAVIS: As of September 1988, and preceding

17 year.

18

MR. TUCKER: No objection, Your Honor.

19

THE COURT: All right. Received without

20 objection.

21

^Defendant's Ex. 31 received into evidence.)

22 BY MR. DAVIS:

23 Q

Mr. Lambdin, let me ask you to refer to this, and

24 indicate, first of all, so the record can be clear on it,

25 j:here are at the upper right hand portion of the page, the

Pauline A. Stipes Official Federal Reporter

681

1 first page of the internal operating procedure itself,

2 there are little boxes which state date issued, date

3 revised. What does the date issued mean?

4 A

Date issued is the original date which the original

5 operating procedure was issued.

6 Q

And what happens subsequent to that?

7 A TEvery year, annually, the operating procedures are 8 reviewed, revised, and/or we decide they need no revision.

9 And if we decide they need no revision, we attach a

10 memorandum to the operating procedure so stating, the last

11 date, date revised would be the last date it was

12 interviewed and issued.

13 Q

Okay. Was this revised in 1988?

14 A

Yes, it was.

15 Q

Was it reviewed in 1988?

16 A l¯7 Q

It was reviewed in 1988. It was not revised. O k a y . W a s it also reviewed in !989_?

18 A

Ye_s, it w a s .

19 Q

And were there any changes for 1989?

20 A

Yes, page one, section 56.05, only, was revised,

21 Q

Mr. Lambdin, .there has been some indication that in

22 the years prior to 1988, the staff overtime at Glades`

23 Correctional ranked about 900 to a thousand hours per

24 month, is that correct?

25 A

That is co_r_rect.

Pauline A. Stipes Official Federal Reporter

682

1 Q

In the year 1988 overtime increased to 2,000 hours

2 Rgr month. Was that also correct?

3 A

That is also correct.

4 Q

And what is involved in that overtime both prior to

5 1988, and then what accounts for the overtime increase in

6 '88?

7 A

Well,;most of our overtime involves supervision of

8 inmates from outside hospitals, or escorting inmates to and

9 from doctor's appointments, or hospital visits. The

10 increase in 1988 involve an increase amount of supervision

11 at the hospital. We were assigned—the department decided

12 that Glades would supervise inmates at Palms West Hospital.

13

In addition to the Glades inmates, we were

14 ¿upervising inmates from Martin Correctional Institution in

15 Lantana, and Indian River Correctional Institution, so our

16 overtime increased dramatically.

17 Q

Is that still the case, you operate the facility at

18 Palms West?

19 A

No, sirf it is not. The department decided several

20 months ago that we would no longer do that, and the

21 hospital designated to receive those patients is changed to

22 a hospital in Miami.

23 Q

And what has that done to the overtime necessary ^t

24 filades Correctional?

25 A

That has decreased the overtime.

Pauline A. Stipes Official Federal Reporter

i)83 ¯T Q ¯ Has the overtime, then, ^returned to the prior level? 2 A Yes.

3 Q

There was some testimony with respect to advisability

4 of utilizing a time clock in the dormitories. In your

5 ^pinion, is that a feasible method of monitoring patrolling

6 of the dormitories?

7 A

In my opinion, it is not feasible. It is

8 unproductive, and would be very, very difficult to

9 implement.

10 Q

Why is that?

11 A

I think the implementation of it in order to have a

12 procedure whereby someone does something on a periodic

13 basis, you have to designate the time that that person is

14 going to go and punch that time clock. Once you do that,

15 then, it is counter productive to good security measures.

16 You can't tell all the inmates you are going to be at a

17 certain point at a certain time.

18 Q

How would having any particular time, however

19 arranged, affect the dormitory guard in the performance of

20 all of its duties in the dormitory?

21 A

The officer in the normal course of performing his

22 .¢uties, if it came time for him to punch the time clock,

23 ^and he was involved with the problem with an initiate^

24 involved with a security check, involved in issuin,g

2 5 .medication to an inmate, or any other thing that constantly

Pauline A. Stipes Official Federal Reporter

684

1 .takes place in the house~~õ~r units, he could not expect to 2 Þe a t that particular clock at a particular time even if

3 you buried it somehow, and that would be difficult. IT 4 don't believe it would work.

5 Q

Is there any way a dormitory guard can determine in

6 advance the possible need to distribute medication to an

7 inmate?

8 A

No.

9 Q

What types of medication may he distribute?

10

MR. TUCKER: Objection, Your Honor. I think

11 the relevance beyond the last question stated is

12 questionable as to the purpose here. He has testified that

13 medicine may have to be distributed. I don't see what

14 purpose these specific medicines have.

15

THE COURT: How about that?

16

MR. DAVIS: If he were dispensing medication

17 continually, that is one dimension. If he were dispensing

18 on an —

19

THE COURT: Objection overruled.

2 0 BY MR. DAVIS:

21 Q

What type medications?

22 A

Over the counter, Tylenol, and throat losanges,

23 things of that nature.

24 Q

Can correctional officer, guard, forecast or

25 anticipate potential problems with inmates that required

Pauline A. Stipes Official Federal Reporter

685

~T his attention within the dormitory?

2 A v^He can never anticipate anything.

3 Q

There was some discussion about the advisability of

4 separating the north compound from the main compound at

5 Glades Correctional. In your opinion, is that a feasible

^ .proposition?

7 A

That is not a feasible proposition.

8 Q

Why not?

9 A

If we separated and made two functional units, the

10 north compound would have to have a food service building,

11 coining hall, chapel services, medical building of some type

12 would have to be erected, religious services, laundry

13 services, all those things would have to be built on the

14 north compound.

15

Food service building alone would run in the

16 neighborhood of two million dollars. If you did all of it

17 that would have to be done it would be millions of dollars.

18 You could literally build a new institution easier than

_

^

19 that. And there has never been any problem to begin with,

20 s o —

21

MR. TUCKER: Objection, Your Honor, he is going

22 beyond the ambit of the question, and I think the opinions

23 as to estimating costs have no basis.

24

THE COURT: Well, I think he finished his

25 answer. I will overrule the objection.

Pauline A. Stipes Official Federal Reporter

i586

BY MR. DAVIS:

Q

Has Glades experienced any problem of conflicts on

any recognizable degree of frequency between inmates of the

north compound, and the main compound caused by the inmate

movement between the two?

A

None.

7 Q

¿n respect to the protective confinement facility,

8 and the question of gain time, could you explain to the

9 cpurt what is involved in gain time, first of all? What

10 types gain time there are, and how it works?

11 A

Okay. yhe department has three types of gain time.

12 Basic gain time, or statutory gain time, is awarded to all

13 inmates at the time they are sentenced, 10 days per month

14 4,s automatically removed from their sentence at that time.

15 Q

Is that ever affected by inmate status in protective

16 confinement?

17 A

N o . The s,econd type gain time is incentive gain

18 time. Inmates may or may not earn incentive gain time.

19 They are eligible to earn between zero, and 20 days per

20 month incentive gain time. How much they earn of that zero

21 to 20 is determined by their work performance, when it has

22 to be, if those inmates that perform above a satisfactory

2 3 manner.

24

A program involving the total inmate, total

25 assessment of that inmate, work performance, disciplinary

Pauline A. Stipes Official Federal Reporter

587

record, everything determines in the classification

2 specialist how much gain time he should get that month.

3Q

Is there an opportunity for inmates in protective

4 confinement to work in protective confinement?

5A

Inmates in protective confinement have an opportunity

6 to avail themselves of the opportunity to work in the unit,

7 sweep, mop, so forth, within the unit itself.

8Q

And how long has that been effective at GCI?

9A

Since I have been there.

10 Q

And what is the next item of gain time?

11 A

Ijext item of gain time is what we call provisional

12 credits, and that is a department wide or computerized

13 awarding of gain time to inmates based on — the reason for

14 it is because the department, state wide, has reached a

15 certain cap on the total number of inmates, and they award

16 % number of provisional credits per month based on the need

17 and population.

18

In order to be eligible for provisional credit,

19 inmates have to be convicted of certain type of crime.

20 There are certain inmates that do not receive provisional

21 credit.

22 Q

Are those sex-offender type?

23 A

Yes. And one — .another reason why they wouldn't

24 receive, they have to work at least enough to earn at least

25 pne day of incentive gain time. So if an inmate in

Pauline A. Stipes Official Federal Reporter

688

1 protective confinement were to work for one day, or a

2 portion of the day, he would earn one, two, three days in

3 incentive gain time, and that would make him eligible to

4 earn the entire amount of provisional credit. If he were

5 not otherwise included in them.

6 Q

In respect to rape investigations, there was mention

7 made of the possibility of utilizing polygraphs. Have you

8 ever been involved in the use of polygraphs for

9 interrogation involved in investigations?

10 A

Yes, I have.

11 Q

And rdo you utilize that at Glades Correctional

12 Institution?

13 A

No, sir, I don't.

14 Q

Why not?

15 A

In my opinion they are totally unreliable, and they

16 are not permissible as evidence in court.

17

MR. DAVIS: I have no further questions, Your

18 Honor.

19

THE COURT: Let's take a few minutes recess,

20 gentlemen. Are you adhering to your projected schedule of

21 witnesses? Sounds like we are bogging down.

22

MR. DAVIS: No, your Honor. We have three more

23 witnesses Dr. Rodriguez, Mr. Lane and Col. Pipta, and Mr.

24 White.

25

THE COURT: Okay. We will be in recess a few

Pauline A. Stipes Official Federal Reporter

T minutes.

2

(Thereupon, a short recess was taken.)

3

THE COURT: All right. You have questions on

4 cross-examination?

5

MR. TUCKER: Yes, we do.

6

MR. DAVIS: Your Honor, we don't intend to

7 offer the HRS document, only DOC.

8

THE COURT: What is this, Defendant's 12?

9

MR. DAVIS: 12.

10

THE COURT: While you are looking that over, as

11 I understand none of the witnesses are going to be very

12 long. Let's see if we could get them on. I would just a

13 soon go on until one, and get them on and off, if we can.

14

How about number 12, is there any objection to it?

15

MR. DAVIS: ^Counsel doesn't object, we will put

16 it all in.

17

MR. TUCKER: No objection.

18

THE COURT: Just for the record, how is it

19 described.

20

MR. DAVIS: Your Honor, these are .enviornmental

21 sampling and air quality and ventilation studies of the

22 confinement area at Glades Correctional.

23

THE COURT: In various confinement areas?

24

MR. DAVIS: Yes.

25

THE COURT: All right. It is received without

Pauline A. Stipes Official Federal Reporter

T¯ objection, number 12. Go ahead, please, si r.

2

(Defendant's Ex. 12 received into evidence.)

CROSS-EXAMINATION

4 BY MR. TUCKER:

5Q

Good morning.

6A

Good morning.

7Q

When the trial in the original LaMarca case ended in

8 December, 1985, you became superintendent right around that

9 time?

10 A

Right around that time, yes.

11 Q

You were actually appointed December 16, '85, and

12 were actually on the job in January '86, is that correct?

13 A

That is correct.

14 Q

And you stated in your deposition that you read both

15 of the LaMarca decisions that were authored by the

16 Magistrate, and by Judge Paine in this case, didn't you?

17 A

That is correct.

18 Q

So you were generally aware of the findings contained

19 in both of those documents, weren't you?

20 A

Yes.

21 Q

And you were aware there were some very specific

22 findings in terms of names, times, dates, places in those

23 opinions, weren't you?

24 A

I was aware of the findings I read in the report, and

25 noticed particularly the major findings.

Pauline A. Stipes Official Federal Reporter

691

j Q

okay.

2 A

They were categorized. I don't know how many there

3 were, but under major headings.

4 Q

After you had read those findings, you didn't discuss

5 the LaMarca decision with any Department of Corrections

6 officials after you became superintendent of GCI, did you?

7 A

I don't believe I did. It is possible I would have

8 talked to him about it in general, but in detail, no.

9 Q

You don't recall any specific conversation with any

10 specific administrator with regard to the opinions, do you?

11 A

No, sir, I don't.

12 Q

You testified earlier that all staff at GCI are

13 either directly or indirectly under your supervision, is

14 that correct?

15 A

That would be correct, yes.

16 Q

You have regular meetings with administrators, staff

17 members, department heads, is that correct?

18 A

That is correct. Let me make one distinction. The

19 medical department is under—for administrative functions,

20 operational functions, I supervise it, but for medical

21 matters, I don't make medical decisions. Medical

22 decisions, the doctor makes. Other than that, I do.

23 Q

The medical department is actually on the grounds of

24 GCI, is that correct?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

592

¯T ¯¯Q

Near where your office is?

2A

It is not very far.

3Q

And you have fairly regular communication, or you

4 would see the doctors fairly regularly, wouldn't you?

5A

Yes.

6Q

Now, in your earlier testimony you described that —

7 or Inspector Peters described that he had regular contact

8 with you with regard to investigations that he performed on

9 sexual battery cases that had been reported, isn't that

10 correct?

11 A

Yes.

12 Q

And that would be from the period of January '86

13 through May '89, approximately, is that correct?

14 A

That is correct.

15 Q

And I would assume that it is true that you continued

16 to have regular communication in order to followup on those

17 investigations with the current institutional inspector, is

18 that correct?

19 A

I have the same relationship with the current

20 inspector as I do with Inspector Peters.

21 Q

Is that Inspector Carlton Williams?

22 A

Yes.

23 Q

So you were aware of the investigation of each report

24 ¾of sexual battery over the period from January 1986 to the

25 present, is that correct.?

Pauline A. Stipes Official Federal Reporter

693

1 Ã

That is correcT^

2 Q

With that awareness you never had a specific

3 discussion with the Glades psychiatrist, Dr. Medina,

4 regarding any homosexual rape or p-sychiatric counseling

5 that he may have provided or may not have provided, did

6 yo.u?

7 A

jNo, I did not. Medical staff have protocols that

8 they follow, abide by, and my chief officer advises me that

9 they do follow those protocols.

10 Q

You never had any discussion with the psychologist,

11 Gary Lane, with regard to homosexual rape, have you?

12 A

That is true. Again, they have specific protocols.

13 Q

You've never given Mr. Lane or Dr. Medina, or the

14 medical staff, an opinion or recommendation that they `

15 ¿]ipuld provide counseling immediately upon the report of a

16 rape, have you?

17 A

They have a protocol involving that, that I believe

18 was introduced earlier, and my chief officer advises me

19 that they follow not only that protocol, but all protocols.

20

MR. TUCKER: I would move to strike the

21 response as nonresponsive, and ask the witness to answer

22 the question which I asked.

23

THE COURT: Well, I think he has answered it.

24 I deny the motion.

2 5 BY MR. TUCKER:

Pauline A. Stipes Official Federal Reporter

694

1 Q

In the year 1989, in our review of the disciplinary

2 reports, and incident reports, it appears there were

3 approximately 20 prisoners who may have been caught in the

4 act of some sort of sexually related act, does that sound

5 correct based on your review of the documents?

6 A

I would say it is approximately correct, I haven't

7 conducted a count, strictly approximately.

8 Q

And in looking at those documents, it appears only

9 one of those persons has ever been placed in confinement

10 for a violation of the rules.

11

Does that sound approximately correct based on your

12 knowledge?

13 A

I would have to go back and look at all the

14 disciplinary reports.

15 Q

Have you done that?

16 A

I would have to do it now and actually count them up

17 before I accept whether it is one or two. You may be

18 perfectly right. I didn't do a calculation.

19 Q

Okay.

20 A

But in trying to finish the answer, in determining

21 discipline on an inmate, an inmate may receive — the

22 penalties meted out for a disciplinary report a large part

23 .depend on the inmate's past disciplinary record. We try to

24 do progressive discipline.

2 5

vSome inmates would rather be in confinement than to

Pauline A. Stipes Official Federal Reporter

1 lose the gain time. It depends on the individual"] You

2 can't make a judgment without going back and knowing all

3 the facts about each individual, and what things the

4 disciplinary team considered in administering discipline.

5 Q

Well, there is a vast difference between the inmates

6 who had come before such a board, isn't there, in what they

7 may feel about what sort of punishment is the worst

8 punishment that they could receive, is there not?

9 A

There is rules of prohibitive conduct that specify

10 the minimum and maximum penalties for each offense and

11 there are 30 or 40 different offenses that an inmate may

12 commit and be charged.

13

When an inmate is charged with an offense, one of the

14 things they look at is has he been charged with other

15 previous disciplinary reports, and we try if we can to

16 administer progressive discipline. In some cases, we take

17 gain time, and don't confine. The .department's policy is,

18 ^f an inmate isn't a threat to institution security, we try

19 to keep them on the compound.

20

It depends on the total picture is all I am saying.

21 Q

But as a general matter, you would agree, would you

22 not that the .loss of gain time is not viewed by the general

23 inmate population as serious a punishment as being placed

24 in confinement, would you not?

25 A

I, disagree with you wholeheartedly. The loss of gain

Pauline A. Stipes Official Federal Reporter

Time means that inmate spends additional time in prison,

and that is very much punishment, and I would say more

severe than disciplinary confinement.

Q

It is a punishment, but when you are placed in

confinement, you do not have general access to the

facilities on the grounds?

A

That is true.

Q

You have limited exercise?

A

We have more exercise.

10 Q

There is less exercise available to a person in

11 confinement than to a person on the general population,

12 isn't there?

13 A

Technically, that is correct, but also we h a v e —

14 Q

The visitors —

15

THE COURT: Let him finish.

16

THE WITNESS: Also, we have provided five or

17 six more times more exercise for all inmates in confinement

18 than i s required. We must by rules provide two hours of 19 exerci se afte r the first 30 days of confinement. What wç

20 do is provide one hour per day, five davs a week for.

21 inmates in confinement commencing when he is5 confined. It

22 is not perfect, but it is far better than any one I know.

23 BY MR. TUCKER:

24 Q

Even with that provision of exercise, an inmate on

25 general population still would have the ability to obtain

Pauline A. Stipes Official Federal Reporter

S97

¯TT more exercise, and more activities than a person in

2 confinement, does he not?

3A

I can't argue with that. In a technical sense they

4 are permitted to. If they aren't working in a normal

5 course of the day, an inmate would be assigned to a job, 6 ¾nd he would not be able to exercise. So, in a sense, in

7 the evening hours, after work, and after supper, 5:30, or 6

8 o'clock, up until the time it gets dark, depending on 9 whether it is summertime or wintertime, they have, perhaps,

10 two hours of exercise time on the yard, or perhaps one. In

11 some cases it is dark at 5:30, and there is really very

12 little difference.

13 Q

The ability to have visitors when you are in

14 confinement is also more limited than when you are in the

15 general population, isn't it? You have to make a special 16 request, and go through a number of extra levels of

17 administration in order to be able to obtain visitation?

18 A

Absolutely. If an inmate is in disciplinary

19 confinement, he has committed a rules' violation. He is

20 not permitted visits.

21

Jnmates in administrative confinement, depending on

22 the reason he is in administrative confinement may or mayi

23 not visit. They have to make a request, and we have to

24 evaluate what they are in there for, what the ramifications

25 would be if they were permitted to go out and visit.

Pauline A. Stipes Official Federal Reporter

i>98

¯¯¯r

Inmates in protective custody, all alleged or we have

2 reason to believe that they may be in danger, whether it is

3 true or not, has no bearing on anything. He has told u s ,

4 or we have decided that is life may be in danger. Whether

5 it is true or not has no bearing on it, and you simply

6 cannot allow an inmate who has made that allegation to go

7 gut and mingle with the general population. If I did that,

8 and an inmate became injured in any way, even if he slipped

9 and fell, if anything, I would be negligent and liable, and

10 we have to be very, very careful and very controlled when

11 we take inmates out of confinement, and let them mingle

12 with the population, or even be out there in the open.

13 Q

It is more difficult to obtain visitation privileges

14 when you are in confinement than when you are in the

15 general population?

16 A

Yes, it is, under the conditions I have just

17 described.

18 Q

Now, Y O U testified in your deposition there is a

19 fairly thorough process that is used once your staff

20 receives an allegation of a sexual battery, is that

21 correct?

22 A

I don't believe I used the term fairly thorough. I

23 said there was a thorough.

24 Q 25 A

There is — If I said it, I don't believe I said it.

Pauline A. Stipes Official Federal Reporter

1 Q

699 There is a process that is used and employed by the

2 staff members in order to investigate sexual battery, is

3 that correct?

4 A

Yes.

5 Q

And that process is not found in a written document,

6 is that correct?

7 A

The basis that we use deals with rules that specify

8 any crime, crimes in general, and it is not specifically

9 that particular crime.

10 Q

You stated in your deposition, didn't you, that the

11 process used in investigating a sexual battery is not found

12 in a written policy?

13 A

No, not in those terms, I did not. I think I

14 testified just what I said. DOC rules are the rules that

15 govern actions that we take in the event of a crime.

16 Q

Now, that process basically includes notification of

17 a shift supervisor taking a victim to an infirmary, going

18 t^p a hospital, you receive notification, and then you

19 stated that you refer the case to the State Attorney's

20 Office, isn't that correct?

21 A

We11, it depends, as far as notification to the shift

22 supervisor. It depends on whether or not the inmate

23 neports it to the shift supervisor, or if he sends us a

24 letter 9 months after it happens, and he is someplace else.

25 He could send the letter to somebody other than the shift

Pauline A. Stipes Official Federal Reporter

1 supervisor.

2 Q

These would be in the normal process that you

3 described earlier?

4 A ¾In the normal process if he reported the allegation 5 to someone under the shift supervisor.

6 Q

Okay.

7 A

The process entails if an allegation is made, and all

8 allegations are made under different circumstances, or most

9 of them are, then the reporting person, the person who sees

10 the report, and assures it gets to the proper people, and

11 then the colonel, of course, would be notified. I would be

12 notified, inspector notified, and we would commence the

13 investigative process.

14 Q

Not every one of these cases is referred to a State

15 Attorney at the end of the process, are they?

16 A

Repeat the question.

17 Q

Inspector Peters testified that not every one of

18 these cases is actually referred to the State AttorneY#

19 that decision rests with you, so not every one of the cases

20 is referred by you to a State Attorney, isn't that correct?

21 A

That is not correct. I testified previously that one

22 of the changes I implemented, it would be automatically

23 referred to a State's Attorney irregardless of.

24 Q

Would Mr. Peters' understanding of that process be

25 incorrect?

Pauline A. Stipes Official Federal Reporter

1 Ã

If he testified to that, and I would have to go back

2 and look at it, they are, and in each and every case, for

3 the past four years, they have been referred to the State

4 Attorney.

5 Q

·%hat process does not provide for the provision for a

6 mental health counselor for a person who has reported a

7 rape at Glades, does it?

8 A

The protocol that the medical staff utilizes, specify

9 that treatment provided by medical staff, what we are

10 interested in initially is to remove the inmate, and get

11 the inmate to our infirmary, and transport to Glades so he

12 could receive whatever treatment in addition to the

13 examination determine medical findings recording the

14 allegation that he can receive any help or treatment that

15 physician deems he needs at the time.

16 Q

When the inmate is at the infirmary, o_r when he goes

17 to the hospital, .he is not accompanied by a rape treatment

18 counselor, is he?

19 A

No.

20 Q

Or, is he?

21 A

No.

22 Q

Now, using the process you described over the past

23 few years in order to describe the process reporting a

24 rape, your conclusion is, you have not found a confirmed

25 sexual battery in the four years?

Pauline A. Stipes Official Federal Reporter

1 Ã

My conclusion, I do not make that decision.

2 Q

You stated you agreed with the State Attorney's

3 conclusions, did you not?

4 A

No, I did not. Let me tell you what I told you. JE_

5 do not make decisions on whether there is a prosecutable

6 case or not. What I said was that the State's Attorneys

7 have the option to do whatever they feel that is necessary.

8 And I said that I did not disagree with the State's

9 Attorneys decision that he didn't have a prosecutable case.

10 I didn't say whether or not I felt he had or had not been

11 assaulted. I simply said I agree that the prosecutor, that

12 the prosecutor did not have a prosecutable case, and I am a

13 lay person, and I don't have any control over it, and

14 whether he has a prosecutable case or not, I simply don't

15 know. That is his expertise.

16 Q

Using the standard of a prosecutable case which

17 you've employed to make those determinations or which you

18 review, or have looked at which have been made by the State

19 Attorney, there has not been a case of a prosecutable

20 sexual battery at Glades in the last four years in your

21 opinion, isn't that correct?

22 A

Well, I have not made any determination. What I have

23 done is provide the State's Attorney with the investigative

24 reports, and/or the Sheriff's Department provided the

2 5 State's Attorney with the investigative reports, and he

Pauline A. Stipes Official Federal Reporter

703 1 makes those decision. ï have ñõ control over the State 2 Attorney's acts.

3 Q

po you believe that Mark White was assaulted?

4 A

I don't know.

5 Q

Do you know if any persons have been assaulted?

6 A

I really do not — I just have to look at the

7 investigative report, and I don't draw conclusions.

8 Q

Do you recall specifically making a determination

9 whether it is a prosecutable case or not that any person at

10 Glades in the last four years was sexually assaulted?

11 A

I think I just said I don't determine prosecutable

12 cases.

13 Q

I am not asking about prosecutable cases?

14 A

I thought—

15

MR. DAVIS: That was the question that counsel

16 previously asked him, and now he is not asking him another.

17 That leaves the question blank.

18

THE COURT: Rephrase your question. I think

19 you can cover it.

20 BY MR. TUCKER:

21 Q

Without regard to whether there is a prosecutable

22 case, in your opinion, has there been a case of sexual

2 3 assault in the last four years?

24 A

My opinion is, I honestly do not know. There have

25 not been a single allegation to where we had enough

Pauline A. Stipes Official Federal Reporter

704

1 II evidence to where the State's A t t o r n e y had a prosecutabl¥

2 case. I don't make those decisions. I just don't make

3 them.

4 Q

To your knowledge, no person in the medical

5 department has obtained any training in rape treatment in

6 the last four years, have they?

7 A

I think the chief officer will be here in a few

8 minutes, and will be able to provide that information for

9 you, as to what training they receive.

10 Q

To your knowledge, there hasn't been any specific

11 rape training, has there?

12 A

To my knowledge, no, his knowledge may be different

13 than mine.

14 Q

You are aware of the difficulty of visual

15 surveillance of the dorms at Glades, with respect to the

16 shower, restroom, and T.V. room areas?

17 A

I think we have adequate visibility. It is not

18 perfect, but it is adequate. Building is patrolled, and

19 ¿ertainly maintained adequate supervision.

20 Q

Without a roving patrol, you cannot maintain an

21 adequate visual supervision?

22 A

You could go further and say if there is no one

23 there, you cannot maintain full supervision.

24 Q

An officer in the wicket cannot maintain full

2 5 control?

Pauline A. Stipes Official Federal Reporter

1 Ã

-J^or the specific~¯moment he is in the wicket, he could

2 not, i f —

3 Q

Or for a longer period of time that he is in the

4 wicket?

5

MR. DAVIS: Excuse me, Your Honor.

6

THE COURT: Yes, let him finish up. You tend

7 to start your next question before he may be through.

8

THE WITNESS: For that moment that he is in the

9 wicket, the other officer is, perhaps, patrolling and

10 ^supervising the dorm, or perhaps they are both, but from

11 the wicket, you can't see into the day room.

12

For example, what they do is maintain active patrol

13 at all times. Every 30 minutes they have to do a security

14 .check of the entire dormitory on the windows, doors, and

15 things of that nature, and they have to j[o_al1 the way

16 around, all the dormitories, in order to do that, and they

17 also have to count every inmate on the hour at night. They

18 do maintain adequate supervision.

19 BY MR. TUCKER:

20 Q

Now, .if both officers were in the wicket at the same

21 time, they wouldn't be able to control the dorm, would

22 they?

23 A

I disagree they wouldn't be able to control the dorm.

24 I think the record in the past four years demonstrates they

25 have done a fantastic job in controlling the dorm..

Pauline A. Stipes Official Federal Reporter

706

¯~I Q

They wouldn't be able to maintain proper visual

2 surveillance over the blind spots that might exist in the

3 day room, or the shower, or restroom, would they, if there

4 were two officers in the wicket for the same period of 5 time?

6 A

Well, ¿hey have far better supervision in my personal

7 opinion in an open base setting like Glades than they would

8 in a large cellblock where they would have no supervision,

9 j¤ut I disagree with you. I think they can maintain good 10 supervision in the dorm.

11 Q

If both officers are in the wicket at the same time,

12 do you believe they are able to maintain visual

13 surveillance over the restroom?

14 A

They are able to see the entire length of the

15 dormitory into the restroom.

16 Q

The patrols are used in order to be able to better

17 view the restrooms, aren't they?

18 A

The patrols are used to provide supervision, and

19 constantly monitor the activities of that institution.

20 Q

And part of the monitoring would be able to provide

21 visual surveillance on the restroom, and dormitory area?

22 A

To provide supervision on the entire dorm, and the

23 bathrooms are part of the dorm.

24 Q

With regard to security, there have been times in the

25 past, four years, possibly for a period of as long as a

Pauline A. Stipes Official Federal Reporter

1 year, when one of the metal detectors at Glades weren`'t

2 working?

3 A

The metal detector at the front gate has always

4 functioned very, very well. The metal detector between th¾

5 main compound, and the north compound is open to.

6 condensation, and we constantly have maintenance problems,

7 with that particular metal detector. It is very difficult

8 to operate one in an open-type setting even though it has a

9 cover over it. There is still condensation that we have

10 difficulty with it. We constantly fix it; and, so, I agree

11 with you.

12 Q

You testified earlier this morning that in your

13 opinion there is a trickle of contraband which comes into

14 the compound from the outside, isn't that correct?

15 A

A trickle, no I didn't say that. Repeat your

16 question.

17 Q

Did you testify there is a trickle solely with regard

18 to the material that might be thrown over the fences?

19 A

Strictly when I said trickle, I was talking about the

20 throwing across the fence, and they throw it, and we catch

21 it, and a trickle gets through.

22 Q

Now, you wouldn't have us believe there is only a

23 trickle or small amount of contraband that does exist on

24 the compound, would you, because, if we went out there

25 today, there probably would be contraband on the compound,

Pauline A. Stipes Official Federal Reporter

1 wouldn't there?

2 A

What I said, I addressed four areas, and those,

3 basically, are the only four areas that contraband is

4 introduced into any of the institution. I said a trickle

5 with regard to the throwing across the fence, successful

6 throwing across the fence situation, and I said a trickle,

7 I didn't use the term trickle, but I will now.

8

With staff, when you get to the Çhird option, and

9 that is the inmates that are outside in the vehicles, and

10 all the traffic coming in the institution, you get more

11 contraband coming in; and when you get to the fourth area,

12 which is the visiting, people in the visiting park, and

13 families, so forth, the first two areas are trickles, and

14 then the `third and fourth area, they have more success for

15 the reasons I outlined.

16 Q

Now, we also discussed double bunking in the

17 protective confinement cells, in all the confinement cells,

18 didn't we?

19 A

I believe we did. I don't specifically recall.

20 Q

Is it your understanding that double bunking in those

21 cells is allowed by Costello?

22 A

That is my understanding.

23 Q

But it is not required by Costello, is it?

24 A

No. It is not required by Costello, and let me

2 5 `explain Costello.

Pauline A. Stipes Official Federal Reporter

1

The department^ as a department, entered into an

2 agreement with Federal Court in Costello, Dugger, and

3 together they agreed on a whole host of items that we would

4 do, and then the court agreed if you do this, this is fine.

5 It doesn't prohibit us from single celling. It doesn't

6 prohibit us from having less inmates in the dorm, or less

7 inmates in the institution, it establishes caps.

8 Q

And there is a cap on the number of persons to be

9 placed in protective confinement at Glades, and that is 16,

10 is that correct?

11 A

No, that is not right.

12 Q

Sometimes there are more than 16 persons placed in

13 confinement in protective confinement at Glades, isn't that

14 correct?

15 A

There are no caps on the number of inmates that can

16 be placed in protective confinement at Glades. We have

17 eight cells that are primarily designated to house

18 .protective confinement, a n d —

19 Q

And sometimes the person is in protective

20 confinement—

21

MR. DAVIS: Excuse me.

22

THE COURT: Let him finish.

23

THE WITNESS: We have eight cells that are

24 primarily designated for protective confinement inmates,

2 5 and we have other cells that are designated for

Pauline A. Stipes Official Federal Reporter

administrative confinement inmates. If we do have mor^ë

rthan 16, we simply move them to the administrative confinement cell, and house them. The cell — really, it

is the status of the inmate, and protection provided

whether they are on this side of the hall, or that side of

the hall.

BY MR. TUCKER:

8 Q

But sometimes there are more than 16 persons in

9 confinement who are in the category of protective

10 confinement?

11 A

On some cases, overwhelming majority of times,

12 probably 98 percent of the time it would be less than 16.

13 Q

You described earlier your understanding of what

14 Costello says, but it does not specifically address the

15 issue of homosexual rapes with regard to this case, does

16 it?

17 A

Costello addresses all areas of over-crowding, food

18 service, and health of the inmate. Anything involving

19 health of the inmate is addressed. Whether they

20 specifically address that, that is considered health, and

21 they address anything having to do with health related

22 matter.

23 Q

You aren't specifically aware it addresses the issue

24 of homosexual rapes at Glades, are you?

25 A

No, sir, I don't believe I ever said that I did.

Pauline A. Stipes Official Federal Reporter

711

¯¯¯l Q

I didn't say that7

2 Q

Now, one of the documents tendered earlier,

3 information regarding protective confinement states that

4 ^nmates should normally be placed in single cells, is that

5 p u r understanding of the code provision?

6 A

If you let me read it. If it says normally?

7 A

This says should normally, yes. Doesn't mean they

8 have to be.

9 Q

Do you have an understanding of the American

10 Corrections Association standard with regard to this issue?

11 A

Yes, I am generally familiar.

12 Q

And what is that standard?

13 A

American Correctional Association prefers to have

14 single cells. They prefer that everything be in an ideal

15 ^situation. They do not consider it to be a mandatory

16 standard.

17 Q

Would you agree it would be ideal if that is what

18 could be provided?

19 A

What I would consider ideal would be to have —

20 always to have less inmates. The ideal situation is one in

21 which I would always prefer that; but what I operate on is

22 what we are authorized to do, and we abide by whatever the

23 court permits us to do in a very tough situation.

24 Q

Since the decision in 1985, and since you became

25 superintendent at Glades, the dorms on the north compound

Pauline A. Stipes Official Federal Reporter

1 have been created out of what was once the cannery?

2 A

That is correct.

3 Q

And once that process was completed, the number of

4 inmates that could be at Glades increased from

5 approximately 800 to approximately 1200, is that correct?

6 A

From 886 to 1217.

7 Q

Now, when that increase took place, there was no

8 creation of additional confinement space at Glades, was

9 ¾,here?

10 A

That is correct. Again, if you allow me to expand on

11 my answer, we have a new confinement unit. The moneys have

12 been appropriated, materials delivered, some materials have

13 been delivered. We are, in the next few weeks, going to

14 commence building.

15 Q

For the past four years there has not been any

16 additional confinement space, has there?

17 A

For the past four years, there has not. We have been

18 planning, trying to draw plans, and secure moneys from the

19 legislature, and those type things take some time. You

20 can't simply get a lot of money quickly. You have to go

21 through a process, and we commenced that some time ago, and

22 we are in the next six months, we will have a new

23 confinement unit at GCI that will more than double tfre

24 total capacity.

25

THE COURT: More than double what?

Pauline A. Stipes Official Federal Reporter

¯¯¯¯I

THE WITNESS: Double the t o t a l confinement

2 capacity.

3 BYMR. TUCKER:

4 Q

And the contemplated plans for that confinement unit,

5 the new unit contemplate continuing practice of double

6 bunking in confinement, don't they?

7 A

Right now, yes, it does.

8

MR. TUCKER: May I have permission to approach

9 the witness, Your Honor?

10

THE COURT: Y e s .

11 BY MR. TUCKER:

12 Q

For the record, I am handing the witness a copy of

13 Plaintiffs' No^ 8 which are plaintiffs' interrogatories,

14 and I would direct your attention to the bottom of that

15 page where you find the number of days for which a person

16 is in protective custody — the length of their stay in

17 protective custody, is that correct?

18 A

That is correct.

19 Q

Now, I took a look at the number of days, and for 10

20 of those inmates, the number of days were given. Does that

21 look to be correct?

22 A Y e s .

23 Q

And for six of those 10 inmates the stay in

2 4 protective custody was a stay of 40 days or more, is that

25 correct?

Pauline A. Stipes Official Federal Reporter

T" A

How many?

2 Q

40?

3 A

In how many cases?

4 Q

Six of the 10?

5 A

Yes.

6 Q

Those are the names of the persons who have reported

7 a sexual battery within the last four years, isn't that

8 correct?

9 A

It would appear to be so.

10 Q

Now, `you have the ability to request a transfer from

11 Tallahassee by telephone and by confirmation by teletype,

12 don't you?

13 A

ïê¿' I c a n d° that.

14 Q

And in some cases, you have done that rather quickly,

15 haven't you?

16 A

It would appear some are transferred more quickly

17 than others.

18 Q

There are some prisoners, in fact, who have been

19 transferred within a day or two when you deem it necessary,

20 is that correct?

21 A

It would appear so, ye,s.

22 Q

Not —

23 A

Yes, I don't have any problem with that.

24 Q

Okay. Looking at this figure, if you accept my

25 calculation of the average being 59 days, these transfers

Pauline A. Stipes Official Federal Reporter

1 have not been completed as quickly as you have completed

2 other transfers for other reasons, have they?

3 A

What we do, when we transfer inmates, whether it be

4 inmates in confinement, or inmates in the general

5 population, depends on where that inmate is going to go,

6 what type of programming, and services, so forth, are

7 available to the inmate when he arrives at the other

8 institution, and depending on the backlog of inmates coming

9 into that facility, some institutions are easy to get to,

10 depending on the programming, than others. Some are

11 transferred quickly, some intermediate, and I must say they

12 are all transferred very quickly, really.

13 Q

For these persons who reported sexual battery, there

14 was, in fact, one person in protective confinement for more

15 than six months?

16 A

Six months, and 19 days.

17 Q

But I —

18 A

But I don't know the reason for that, and, generally

19 speaking, there is always a reason to explain it, and I

20 don't know what institution he went to, or how long it took

21 to complete any investigation or anything. I just simply

22 don't know. I accept y o u r —

23 Q

That figure was indeed provided by you?

24 A

Yes, absolutely, I accept that.

25 Q

Now, I would like also to direct your attention to

Pauline A. Stipes Official Federal Reporter

716

1 questíon number¯¯¯¯7 in þTä¯ïñtTf¯Fš¯'interrogatories. You

2 stated earlier when you became superintendent of Glades in

3 January, 1986, you conducted a review of the operating

4 procedures at Glades?

5 A

Yes, that is correct.

6 Q

Earlier we provided questions to you for which you

7 provided answers regarding changes that may have been made

8 in policies at Glades?

9 A

Yes.

10 Q

And these are your answers to those questions?

11 A

That's correct.

12 Q ffith regard to question 7A, isn't it true that the

13 policy with regard to the transfer of so-called wolves has

14 not been changed since January, 1986?

15 A

When I arrived at Glades, after I reviewed the

16 Magistrate's findings, court findings, I checked into our

17 procedures for transferring management problems in inmates.

18 I do not refer to people as wolves. They are people with a

19 — management problem inmates.

20 Q

That is how they were referred to?

21 A

That always bothered me. We don't have any wolves,

22 tigers, or anything like that. They are management problem

23 inmates. The policy, there have been numbers of inmates

24 transferred previously, I thought our policy was good.

25 What I did, I thought with the classification staff, and my

Pauline A. Stipes Official Federal Reporter

717

1 II a s s i s t a n c e , correctional staff, told them to be extremely

2 aggressive in identification, and transfer of management

3 problem inmates, and we would document such transfers, and

4 we have done so, and we have transferred approximately

5 sj_jtty management problem inmates each y e a r .

6 Q

That policy hasn't changed since January '86, has it?

7 A

I think the policy was good when I arrived, and I

8 think continues to be good..

9 Q

With regard to question B. provision of protective

10 confinement, the policy with regard to that issue, also,

11 hasn't changed since January, '86, has it?

12 A

Protective custody for inmates. Give me a minute to

13 read it.

14

No, inmates continue to be placed in protective

15 confinement upon request, or if we feel that an inmate, if

16 ye receive information that an inmate is in danger, we

17 place the inmate in protective confinement on an

18 involuntary basis. Our interest is to make sure if there

19 is any danger, we take him out of population, and place him

20 in protective custody.

21 Q

And that hasn't changed since January. '86?

22 A

That is true, and we comply with it.

23 Q

On the next page, it is also true the policy with

2 4 regard to investigation of reported homosexual rapes has

25 not changed since January, 1986?t

Pauline A. Stipes Official Federal Reporter

1718

1 Ã

I think I testTf¯Tê'd that the basic policy was good,,

2 and that investigations were conducted. We did refer them

3 to the law enforcement officials, etc.. I did say I made

4 ¿wo changes.

5 Q

One of those changes is contained in 7E where you

6 decided that the forensic exam is now performed at a local

7 hospital?

8 A

Yes, that is correct.

9 Q

Now, if you look another page over at question 7F, it

10 is also true, isn't it, that the provision of mental health

11 care for victims of homosexual rape has not changed sinee

12 January of 1986?

13 A

I believe we have had a protocol issued to medical

14 staff, and I believe it was 1987,. I have to check the

15 date. That protocol is, in effect, to the medical staff.

16 Q

That protocol was not included in the answer to 7F,

17 was it?

18 A

No, it wasn't, but I agree with my answer..

19 Q

Now, with regard to your answer to 7G, the policy

20 regarding control of contraband has not changed sinc.e

21 January, 1986, has it?

22 A

I believe — my testimony is that I reviewed the

23 policy, and it was a good policy, and we simply set out to

24 make sure that we, in fact, implemented the policy where

25 possible, and we have done that.

Pauline A. Stipes Official Federal Reporter

119

1 Q

And that policy has not changed?

2 A

The written policies have not changed, because they

3 were excellent policies to begin with.

4 Q

The policy found in your answer to question 7H

5 regarding efforts taken to insure that correctional

6 officers patrol the dorms has not changed since January of

7 '86, has it?

8 A

The policies remain that officers patrol the dorms.

9 I have found no evidence when I arrived to indicate that

10 ¿hey did not. What I did, again, was set about to

11 institute some procedures to make sure that they were

12 properly monitored, and to make absolutely sure that they

13 were patrolling.

14 Q

And that policy hasn't changed, has it?

15 A

The implementation was my implementation, and there

16 were two superintendents or three, whatever, prior to that,

17 the policies were good, and I set about to make sure they

18 were followed, and I had no evidence that they weren't

19 followed previously.

20 Q

Following your review of the decisions contained in

21 Magistrate Nimkoff's opinion, and in Judge Paine's opinion,

22 what, if anything, have you changed?

23 A

What I would prefer to do is take each category, and

24 I will be happy to tell you what I have done.

25 Q

I would ask you to answer the question that I have

Pauline A. Stipes Official Federal Reporter

given you.

A

What I did simply is review the findings, and,

basically, found as I have already answered here, what I

found, and the changes that I made in order to make sure

that we were in compliance. One — for example, what I did

with the allegation of pornographic movies, I investigated/

I_ found no evidence to indicate that they were doing it,

but I called the staff together and told them just that. I

didn't have any evidence that it had been done, but if any

10 time in the future it did, staff member responsible would

11 Jge responsible.

12 Q

You eliminated pornographic movies?

13 A

I don't know that pornographic movies existed. I

14 looked at each one of the findings in the same light.

15

MR. TUCKER: May I have a moment?

16

THE COURT: Yes.

17

MR. TUCKER: I have no further questions.

18

THE COURT: Any redirect?

19

MR. DAVIS: Just a brief question, Your Honor.

20

REDIRECT EXAMINATION

21 BY MR. DAVIS:

22 Q

In respect to the bunking of inmates in protective

23 confinement, you've indicated that there are currently

24 eight cells in protective confinement, is that correct?

25 A

That is correct.

Pauline A. Stipes Official Federal Reporter

721

1 Q

In the future you expect to have substantial more

2 cells in protective confinement?

3 A

We will have additional 40, 43 beds, 23 cells.

4 Q

yíow, currently with eight cells in protective

5 >ç_gnfinement, if there are four, five, six, seven, eight

6 j.nmates in protective confinement, are they double bunked,

7 or are they assigned to individual cells?

8 A

They are single bunked.

9 Q

And, in the future, how would that policy affect with

10 the additional cells? Would they be double bunked at any

11 time when you have less inmates than the number of total

12 cells?

13 A

We will have two beds in each cell, but in all

14 likelihood, it would be a rare occasion when more than one

15 inmate stays in a cell.

16 Q

What is the policy at Glades in respect to the

17 patrolling of the confinement area by the confinement

18 officer?

19 A

The confinement officer has to patrol the entire

20 .confinement area, and check each and every cell, look into

21 each and every cell, as a minimum, every hour on the hour.

22 He has to sign off and certify that he does that. He does

23 it more often than that. That is the minimum,

24 Q

Let me show you an item to be offered as a next

25 exhibit, and ask you if that shows a typical log.

Pauline A. Stipes Official Federal Reporter

722

MR. TUCKER: I object, that is going beyond the

2 scope of cross.

3

THE COURT: Was there anything on the cross of

4 the subject?

5

MR. DAVIS: It had to do with the protection of

6 the inmates in the protective confinement unit, and the

7 patrolling, or custody of the inmates is an element of that

8 safety.

9

MR. TUCKER: I object, this goes beyond the

10 cross. 11

THE COURT: I think it does. I don't recall

12 there is anything in that area on cross. I sustain the

13 objection.

14

MR. DAVIS: All right. JWe would proffer this

15 into evidence, then, as the defendant's next exhibit.

16

THE COURT: All right. What number are you

17 giving it?

18

THE CLERK:

19 BY MR. DAVIS:

20 Q

Is this an official document of Glades Correctional?

21 A

Yes, it is.

22

MR. TUCKER: We would object. This is an

23 effort to circumvent the exhibit, and we want to insure

24 that it will not become an exhibit.

25

THE COURT: Well, it is marked for

Pauline A. Stipes Official Federal Reporter

1 identification only.

2

MR. DAVIS: No further questions.

3 4 ask.

THE COURT: I have a couple questions I want to

5

EXAMINATION

6 BY THE COURT:

7 Q

I ask you, sir, yhat work programs for inmates are

8 either available or required?

9 A

For inmates?

10 Q

Yes.

11 A

We have about 250 inmates assigned outside the fence.

12 We have what we call a ,Pride Program for inmates that are

13 t¾aid a nominal fee, prison industry program, harvesting

14 squads, warehouse, people that work in the warehouses.

15 Q

Agricultural warehouses?

16 A

Agricultural warehouses, receiving warehouses. We

17 have j^eceiving meat plant where they receive, process, and

18 ship meats; yarious landscaping duties, tractor drivers,

19 yarious farm equipment operators, a host of clerical people

20 that work for Pride. Inside the compound we have, of

21 ¾`ourse, food service.

22 Q

Well, all of which you mentioned before has been

23 outside?

24 A

Yes.

25 Q

Okay.

Pauline A. Stipes Official Federal Reporter

724

1 II Ã

Inside we have inmates that work in food service and

2 prepare food and so forth. They work in the laundry.

3 Dormitory housing to keep the dormitory clean. They work

4 on the yard to maintain the grounds. They work in the

5 maintenance department. These are outside, too. Electric

6 squad, a carpenter squad, masonry, covers whole area of

7 maintenance of the institution.

8

We have construction inmates that build buildings,

9 and renovate, inmates built, or renovated the canning

10 plant, and built the new dormitory. Various other jobs.

11

We probably have the best or most expansive work

12 program in Florida in terms of numbers of inmates that

13 work.

14 Q

Now, this work that is done on the outside, what

15 happens to the produce of that work, is it uti1ized by the

16 institution or other Governmental units? Is it sold or

17 what? You say the work done by the harvesting squad,

18 agricultural houses, meat plant, landscaping duties?

19 A

Those prisoners work for prison industries, commonly

20 referred to as Pride. They are involved in those

21 institutions, the product of their labor goes back into, is

22 sold to various other public agencies, schools, and so

23 forth, by Pride.

24 Q

\j¿m mentioned something about 5,000 acres that is a

25 part of your institution, is that right?

Pauline A. Stipes Official Federal Reporter

725

1 II Ã

We have a total of about 5,000 acres.

2 Q

Is this agricultural land?

3 A

About 4,000 acres are agricultural.

4 Q

And what about the other thousand?

5 A

The cither thousand would consist of the institution,

6 and surrounding acreage in and around the institution, and

7 the buildings, staff housing, bachelor quarters, a lot of

8 .holdings outside, and some is not utilized, it is vacant.

9 Some citrus. We have a few orange groves. That would be

10 agricultural.

11 Q

Is any of this, the produce of these labors and the

12 materials that you have sold to private industry, any of it

13 used other than by the State of Florida?

14 A

I don't believe so. Like I said, I am not familiar

15 with precisely who they sell to, but I know it is for the

16 benefit of other tax supported agencies. We purchase from

17 Pride ourselves. It is an opportunity to get some goods

18 produced cheaper than you could perhaps buy it in private

19 industry, to save tax money.

20 Q

All right. J n your landscaping work, you do produce

21 plants, and sod, and that sort of thing?

22 A

Yes.

23 Q

For whoever finds it useful?

24 A

We have a horticultural program, an instructor from

25 the Palm Beach County School Board that teaches academic

Pauline A. Stipes Official Federal Reporter

726

I¯¶ classed, and they go out and produce~t¾¯¯ë¯ plants.

2 Q

All right. Is this work required or simply on a

3 voluntary basis that they participate in the activities?

4 A

Jnmates are required to work if they are medically

5 able to work. If the medical staff feels they are for

6 whatever reason not able to work, they don't work. If they

7 are medically able, we assign inmates to work details.

8 What we do is try to match the skill with the work to be

9 performed.

10 Q

And how many hours are they expected to work per day,

11 or week, or per month, whatever?

12 A

They work the same work week, 8 to 5, Monday through

13 griday.

14 Q

And are they paid?

15 A

The inmates assigned to Pride are paid. They are

16 paid a nominal fee, depending on the skill level. ^nmates

17 that do not work for pried are not paid.

18 Q

Those are the ones that keep up the facility itself.

19 They are not Pride employees?

20 A

That is correct, and they are not paid.

21

THE COURT: All right. Thank you.

22

You gentlemen have any questions on those subjects?

2 3

MR. DAVIS: No.

24

MR. TUCKER: No.

25

THE COURT: You may step down.

Pauline A. Stipes Official Federal Reporter

727

1 II

Who is your next witness.

2

MR. MEGINNISS: The defendants would call Col

Pipta.

5

EDWARD C. PIPTA, DEFENSE WITNESS SWORN

6

THE COURT: Be seated. State your name, spell

7 your last name.

8

THE WITNESS: Edward C. Pipta, P i p t a .

9

THE COURT: Proceed.

10

DIRECT EXAMINATION

11 BY MR. MEGINNISS:

12 Q

Where are you employed?

13 A

Glades Correctional Institutional.

14 Q

What are your duties?

A

Correctional officer, chief two, in charge of the

16 security department.

17 Q

I am going to ask you to speak into the microphone.

18

Do you have a rank associated with this position?

19 A

Colonel.

20 Q

jiow long have you been a colonel?

21 A

About a year and a half, I believe, I was a major.

22 Q

What were your duties when you were a major?

23 A

Same as now..

24 Q

The position has upgraded?

25 A

Yes.

Pauline A. Stipes Official Federal Reporter

728

1 II Q

Jiow long have you been in charge of security at

2 glades Correctional Institution?

3 A

Since September '84.

4 Q

Would you describe what your normal day is, how you

5 perform your duty, sir?

6 A

Yes. ¾Jormal day usually begins by reviewing the

7 paper work of all the activities that took place the

8 previous day. Then it is touring the compound, looking for

9 breaches of security, checking locks, doors, windows,

10 talking to the staff, talking to inmates. Counseling

11 staff, counseling inmates. Finding — coordinating with

12 the shift on duty, medical, escorts for trips for here to

13 doctors, reviewing inmates in confinement. It goes on and

14 on, sir.

15 Q

And you have various people working under you?

16 A

Yes.

17 Q

And they have ranks in the organization?

18 A

Yes.

19 Q

Would you briefly describe who works for you, and

20 briefly what they do?

21 A

I have presently two, correctional officers, chief l's

22 that are the rank of major, and their duties are just

23 practically identical to mine.. Under them we have captains

24 who are shift supervisors, lieutenants, who are also shift

25 supervisors. Appropriate line of sergeants on duty for a

Pauline A. Stipes Official Federal Reporter

particular shift, plus correctional officer T~.

Q

All right, sir, have you ever had occasion to receive

correspondence from inmates?

A

Yes.

MR. MEGINNISS: I would like to approach the

witness, if I may, and ask him to identify this document,

Your Honor.

8

THE COURT: All right, sir.

9 BY MR. MEGINNISS:

10 Q

I am handing you what appears to be several sheets of

11 yellow paper, and I would like to ask you if you recognize

12 that?

13 A

Yes, I do.

14 Q

And do you recall receiving this?

15 A

Yes.

16 Q

Would you briefly state what it is?

17 A

Well, it is a letter from an inmate by the name of

18 Haveard who was in confinement basically advising me of

19 circumstances that had taken place months before he wrote

20 this particular letter.

21 Q

Does the letter purport to have a date?

22 A

September 2, '87.

23

MR. MEGINNISS: I would like to tender this

24 subject to objection into evidence as defendant's next

25 exhibit.

Pauline A. Stipes Official Federal Reporter

730

1 II

THE COURT: That will be 48, I believe.

2

MR. AMLONG: I object to this. This is hearsay

3 in that it is an out-of-court statement by Mr. Haveard. It

4 is being offered for the truth of what it contains. I

5 haven't had a chance to read the entire letter yet. Mr.

6 Haveard was here and available for cross-examination, and

7 identification of this letter if it was his. To introduce

8 it at this juncture is improper impeachment of Mr. Haveard.

9 He has never had a chance to explain this.

10

THE COURT: How about that, Mr. Meginniss?

11

MR. MEGINNISS: May it please the court, with

12 further questions, I believe I can establish after receipt

13 of this letter, this witness did converse with Mr. Haveard,

14 all I was trying to do within his course of employment, he

15 normally receive, or may receive letters of this type, and

16 asking him to identify it, and this is one that he

17 received.

18

THE COURT: I sustain the objection to this

19 letter on the basis of what is shown so far. Seems to me

20 the objection is a good one.

21

MR. MEGINNISS: May I further pursue this line

22 of questioning to establish whether or not he did interview

23 Mr. Haveard?

24

THE COURT: Yes, I think you can do that.

25 BY MR. MEGINNISS:

Pauline A. Stipes Official Federal Reporter

1 Q

All right, Col. Pipta, you did talk to Mr. Haveard

2 after the receipt of this letter?

3 A

Yes.

4 Q

Would you tell the court what he told to you, and

5 what you told to him?

6 A

He basically was saying the same thing that is in the

7 letter, but the thing I said to him, I questioned him to

8 the fact how he could have been taken in by the particular

9 inmates that he named in this letter in today's modern

10 time, and modern prisons.

11

What has happened in this letter is the normal way

12 inmates were taken in 20 or 30 years ago in the

13 correctional system.

14 Q

Did you ask him to explain the delay in the

15 submission of this letter to you between the incident, and

16 the time of the date of the letter?

17 A

I don't recall that.

18 Q

Do you recall when he told you that the incident

19 occurred?

20 A

Yes. It was months ahead of time. If I read this

21 whole letter, it probably states it in here, but it was

22 months, 6, 7 months before I received this letter.

23 Q

All right. So he did relate to you an incident that

24 occurred some months previous to that?

25 A

Right, yes.

Pauline A. Stipes Official Federal Reporter

1732

¯¯I

MR. MEGINNISS: Fo¯r that purpose, Your Honor, I

2 would like to ask that it be submitted into evidence to

3 verify there was quite a delay between an incident to which

4 Mr. Haveard testified -–

5

THE COURT: I think I have to continue to

6 sustain the objection. I believe it is still a good

7 objection.

8

MR. MEGINNISS: I would like to proffer it into

9 evidence.

10

THE COURT: All right. It is marked for

11 identification Ex. No. 48. And that will be part of the

12 record, but for identification only.

13 BY MR. MEGINNISS:

14 Q

Now, Col. Pipta, a lot has been said about the

15 security in the dormitories, and the way it is patrolled,

16 who is in overall in charge of the security of the

17 dormitories?

18 A

I guess I would be, sir, in charge of security,

19 period.

20 Q

Did you ever have occasion to visit the dormitories

in the evening?

22 A

Yes·

23 Q

Do you do this on a frequent basis?

24 A

I do it unannounced. Depends on what you mean by

25 frequent.

Pauline A. Stipes Official Federal Reporter

T ¯Q
2A

Do you do it ãH much as once a month? At least once a month, yes.

3Q

Do you have anyone else who does that other than the

4 people who are actually assigned to the dormitories?

5A

Yes, my administrative lieutenant does unannounced

6 ij¾spections, tours, and also officers in charge, captains,

7 and lieutenants.

8Q

And would you briefly describe or tell the court how

9 these patrols, if they are patrols, are done?

10 A

By myself, sir?

11 Q

No, by the officers that are assigned?

12 A

Yes.

13 Q

How many officers do you have there?

14 A

Well, depending on the shift, sir, the second shift

15 which is commonly known as the day shift, 8 to 4, as a

16 .minimum would be one officer assigned, as a minimum. On

17 the evening shift. 4 to 12, and the first shift, 12

18 midnight 8 in the morning would be two officers assigned as

19 a minimum.

20 Q

All right. Let's take the evening hours, or dark

21 shifts, how do the officers perform their duties?

22 A

Well, they continually have to tour the dormitories.

23 During the dark duties, we speak now at nighttime, once the

24 lights are out in the dormitory, every hour, a count of the

25 inmates has to take place.

Pauline A. Stipes Official Federal Reporter

T

Normally, that is done somewhere near on the hour.

2 It may be, for example, the first one would be 11 o'clock

3 when lights go out, and the second one 12 o'clock, or

4 quarter of 12, 12:15, so it wouldn't become exact period of

5 time, where somebody could time them, one o'clock, 1:15,

6 two o'clock, quarter to two, and this goes on until 6

7 o'clock in the morning.

8

In addition, on the half hours of — or thereabouts,

9 there are complete checks made by the officers in the

10 dormitory of which we call security checks. I failed to

11 say the counts they make on the hours are called in the

12 control room, and put in the control room log. The

13 security checks that are made on the half hours are to

14 check all the windows, all the doors, all the other areas

15 of the dormitpry, fiuch as bathrooms, shower rooms, between

16 all beds, andfr.hat·.is done on half hour, so they have very

17 little time to spend any time anywhere except patrolling

18 the dormitories and coming back to their station to the log

19 that this has been done, or call it into the control room.

20

MR. AMLONG: Your Honor, I object to Col.

21 Pipta's testimony as to this, and move to strike it on the

22 grounds of competence. If he wants to testify what the

23 policy is, that is one thing. Unless Mr. Meginniss

24 establishes that he witnesses doing this, or has some other 25 way of establishing competency, I move to strike.

Pauline A. Stipes Official Federal Reporter

1

THE COURT: Motion denied, objection overruled.

2 BY MR. MEGINNISS:

3 Q

Now, Colonel, with respect to the security checks, do

4 you have any idea how long it takes?

5 A

To make a security check?

6 Q

Yes.

7 A

Well, we have different size dormitories.

8 Q

Take .dormitory D?

9 A

I would have to say it would safely take to do a good

10 thorough check approximately 25 minutes, maybe 30.

11 Q

Now, the same thing for the count, how long does that.

12 take?

13 A

The count, to insure that you have a living,

14 breathing person in a bed is going to take you about 15, 20 15 minutes a night.

16 Q

And how is the count conducted to insure you have a

17 breathing living body?

18 A

The officer has to walk through and see that this is

19 t^iere. He has to count a physical living breathing human.

20 skin.

21 Q

Did you ever experience working a dormitory in making

22 these patrols?

23 A

Yes, years ago.

24 Q

Were you ever directly in charge of a dormitory?

25 A

Yes, as a correctional officer 1, working in one,

Pauline A. Stipes Official Federal Reporter

I¯¯ yes.

2 Q

Briefly, how about outside patrol, is there outside

3 patrol going on?

4 A

Yes.

5 Q

Briefly describe what the duties of that person might

6 be beginning with the rank that he normally has.

7 A

Well, a person who directly is responsible to the

8 officers in the dormitory would be the sergeant. Each

9 dormitory has a sergeant assigned to it.

10

The sergeant's duties are to do the same duties of

11 outside, in other words, security checks from the outside

12 of all the windows and doors.

13

In addition to that, assist the correctional officer

14 in supervising the counts as he watches to make sure nobody

15 is moving in a period of a count, assuring that the officer

16 is doing his job as policy prescribes.

17 Q

Outside security is responsible for how many

18 dormitories?

19 A

On our main compound, we have one sergeant for two

20 jdormitories. There are four dormitories, one for each two

21 dormitories.

22 Q

What about the outside security, do they ever come in

23 inside?

24 A

.Yes, if there is a problem of any nature in the dorm,

25 inmates behavior—he is up out of bed when he should be in

Pauline A. Stipes Official Federal Reporter

1 it—and officer seems to be having a problem with getting

2 him in bed, the first thing they do is call for the

3 ^ergeant. The sergeant will enter the dormitory, and

4 resolve the problem, either assuring that the inmate is in

5 his bed, or taking him to the Captain's office.

6 Q

Outside any problem, would that security man have

7 occasion to go inside?

8 A

Yes, just for a normal routine check during the

9 evening^.

10 Q

How often are these checks made, if you know?

11 A

He is supposed to make as a minimum during hours of

12 çìarkness a minimum of two checks on the outside, and

13 minimum of two on the inside.

14 Q

Now, you say the counts are called in to the main

15 security station?

16 A

Yes.

17 Q

Who is in charge of main security?

18 A

There is a sergeant in the control room. Control

19 room sergeant.

20 Q

Is this reported then by him to anyone?

21 A

No, sir. He clears the count, if the count is not

22 what it is supposed to be, he would immediately report that

23 to the captain.

24 Q

And where is the captain?

25 A

The Captain's office is inside the main compound,

Pauline A. Stipes Official Federal Reporter

1 about the center of the main compound.

2 Q

Would the captain have any occasion to review or look

3 at the dormitories?

4 A

Yes. The captain and lieutenants, we have both at

5 the institution, and usually both are on duty at all times.

6 Yes, their post orders tell them they will do this.

7 Q

And all of this is recorded in writing, I take it?

8 A

Yes.

9

MR. MEGINNISS: You may inquire.

10

CROSS-EXAMINATION

11 BY MR. AMLONG:

12 Q

Good afternoon, Col. Pipta. How long have you been

13 correction officer chief there?

14 A

Since September, 1984.

15 Q

All right. So, you were the correctional officer

16 chief during the trial portion of the first trial in this

17 action?

18 A

No, sir.

19 Q

Well, that trial took place in December 1985, so you

20 were correction officer?

21 A

Yes, okay, I am not sure when it was.

22 Q

Have you ever had a chance to read Judge Nimkoff's

2 3 recommended order in that case?[

24 A 25 Q

No, sir, I am not familiar with it. Have you ever had a chance to read Judge Painefs

Pauline A. Stipes Official Federal Reporter

'39

opinion in that case?

2A

.1 am not familiar with it.

3Q

The routine that you just described about how you

4 have two officers assigned to each dorm, and the two

5 officers make patrols, and security checks, and the

6 sergeant roams back and forth, that is the same procedure

7 that was in effect in December, 1985, was it not?

8 A Yes.

9Q

Have you changed anything?

10 A

No, sir. it has always been those.

11 Q

There have been no changes in either procedure, int

12 either policy or execution since December f85, is that

13 correct?

14 A

Not that I am aware of at this time.

15 Q

So, if Judges Nimkoff and Paine found that although

16 the officers were supposed to be in constant patrol in the

17 dorms, that this did not occur, there is nothing that would

18 have changed that?

19 A

I don't know what they found.

20 Q

I am saying assume they found that there have been no

21 changes to assure that the officers do patrol?

22 A

I am not going to assume anything, sir. I am going

23 to tell you how it is.

24 Q

`Has any officer ever been disciplined_fç>j: nptjmaking

25 those patrols?

Pauline A. Stipes Official Federal Reporter

740

1

MR. MEGINNISS: May counsel please identify the

2 time period?

3 BY MR. AMLONG:

4 Q cSince December '85, do you recall disciplining of any 5 correctional officer for failing to make the required

6 patrols?

7A

I don't recall at this time, sir.

80

And that sort of thing would come through you since

9 you are the boss of security?

10 A

Wnppfiil 1y .

11

MR. AMLONG: Nothing further.

12

THE COURT: Anything else?

13

MR. MEGINNISS: Nothing further, Your Honor.

14

THE COURT: Thank you, you may step down.

15 (Witness excused.)

16

THE COURT: Who is our next witness?

17

MR. DAVIS: Dr. Rodriguez, Your Honor.

18

ORLANDO CHRISTOPHER RODRIGUEZ, DEFENSE WITNESS SWORN.

19

THE COURT: Please be seated. State your name,

20 please, sir.

¯ Tf'·

21

THE WITNESS: Orlando Christopher Rodriguez.

22

THE COURT: Proceed.

23

DIRECT EXAMINATION

24 BY MR. DAVIS:

25 Q

Dr. Rodriguez, if you could sit close to the

Pauline A. Stipes Official Federal Reporter

1741

1 microphone so you could be heard, that may assist us.

2

Would you tell us where you reside, where you live?

3 A

I live on Miami Beach, but I stay five days during

4 the week in Belle Glade.

5 Q

All right. And where are you employee^?

6 A

I am employed for Glades Correctional Institutional.

7 Q

And what is your position?

8 A

,1 am chief health officer.

9 Q

As chief health officer, are you a physician?

10 A

Yes.

11 Q

And would you tell the court briefly your medical

12 background?

13 A v I am a graduate of the School of Medicine of Madrid 14 University, Spain, 1957. I came to this country in 1958,

15 .and I took my training in Ohio. I had one year of rotating

16 internship, and I went into general practice training. I

17 had two years general practice training, and two year

18 fellowship in intending medicine, and the hospital I was. ,1

19 was chief of the resident program.

20 Q

All right. And as the chief health officer at Glades

21 Correctional Institution, i_s it your function to receive

22 and promulgate among the staff the health protocols?

23 A

£es.

24 Q

yould you tell the court what the procedure is, since

2 5 January 1st, 1985, what the procedure has been for the

Pauline A. Stipes Official Federal Reporter

¾ealth staff at Glades'Correctional for receipt of a

2 complaint of an inmate patient of a sexual assault?

3A

W,e.ll. we do have two procedure. We have one prior to

4 J.987, July, 1987, and then we have another one nowf from

5 !87 to this date.

6Q

And what was the procedure prior to '87?

7A

The procedure before was that the person that would

8 be working in the emergency room at the institution, we.

9 have a case of alleged rape, inmate will be brought to by

10 an officer, or he might come on his own will, and I would,

11 proceed to examine the patient.

12

We do a visual examination, and also we do a rectal

13 examination. We take a swab in the rectal area. We have a

14 rape kit where we collect evidence, and we will send it to

15 the Sheriff's Office. That was before 1987.

16

After 1987, then we implemented a different

17 procedure, where any inmate that come to the clinic and

18 with alleged rape, we will proceed to have a visual

19 inspection, and refer him to the local hospital. Glades

20 .General Hospital, usually.

21 Q

So at the present time you only do a visual

22 examination?

23 A

That is all we do, visual examination. After that,

24 we send him to the hospital. The inmate after he returns

25 to the hospital, he will be referred for psychological or

Pauline A. Stipes Official Federal Reporter

1 psychiatric care.

2 Q

And 4s that pursuant to any protocol?

3 A

Yes, there is a protocol to that effect.

4 Q

Let me show you what is marked Plaintiffs' No. 7, and

5 ask you if that is the protocol?

6 A

¾Yes, sir, this is the protocol. It was reviewed by

7 me in 1989, July, 1989.

8 Q

You subsequently reviewed it to its implementation?

9 A

Right.

10 Q

Does that Ex. 7 also include protocol for HIV

11 testing?

12 A

Well, HIV testing will involve any time there is some

13 kind o f —

14 Q

I am sorry, the exhibit there, does that refer to HIV

15 testing?

16 A

Yes, sir.

17

THE COURT: Is this Defendant's Ex. 7?

18

MR. DAVIS: This is Plaintiffs' 7.

19

THE COURT: It is already received.

20

MR. DAVIS: Right.

21 BY MR. DAVIS:

22 Q

Have you instructed the medical staff at Glades

23 Correctional in the implementation of that protocol?

24 A

Yes, we do have several staff meetings where we —

25 after implementation, we bring about review of all the

Pauline A. Stipes Official Federal Reporter

744

1 policies, and procedures.

2Q

Would you briefly tell the court what the health

3 staff consists of at Glades Correctional?

4A

At Glades Correctional, we have eight registered

5 nurses now.t We have eight medical certified technicians.

6Q

Let me ask you about the medical technicians. Are.

7 any of those graduates of medical school?

8A

Yes, they are from foreign medical school.

9Q

Do they hold a Degree of M.D.?

10 A

In their country, they have to take, after that, they

11 have to take ECF and G, which will equal them to medical

12 school here, and they have to pass a license in the state

13 where they want to practice.

14 Q

These are graduates of medical school that have not

15 yet been licensed to fully practice medicine?

16 A

No, they can't do that.

17 Q

In addition to eight registered nurses, and eight

18 medical technicians, is there any other staff at Glades?

19 A

Yes, we have a licensed physician in the State of

20 Florida.

21 Q

And who is that?

22 A

Dr. Dow.

23 Q

Is Dr. Do — are Dr. Do and you the two licensed

24 physicians on the staff?

25 A

X&s.

Pauline A. Stipes Official Federal Reporter

745

^

Spell his name?

A

Do.

3Q

And is that essentially the health staff at Glades

4 Correctional?

A

No. We have more additional staff. We have a

6 psychiatrist, Dr. Medina. We have psychologist, he is a

7

o_¢ist, specialist. We have also pharmacist. We

8 have^dental department with two dentists, and two dental

9 assistants.

10 Q

In respect to the HIV procedure which is a part of

11 the exhibit that you have in front of you, is there any

12 counseling associated with the giving of that?

13 A

Jfes, we have two counseling in that area. We have

14 the pre-testinq counseling, and the post-testingi 15 counseling.

16 Q

In this HIV is a test given for inmates that may have

17 been exposed to the aids virus?

18 A

Yes.

19 Q

Let me show you what is to be marked the Defendant's

20 next numbered exhibit, and ask you if that is a copy of the

21 medical department records maintained under your

22 supervision?

23 A

Yes, this is daily log on the patients Dr. Do sees,

24 and the other one is Dr. Medina, psychiatrist.

25 Q

Which is Dr. Do's sheet, and which is Dr. Medina's

Pauline A. Stipes Official Federal Reporter

746

j sheet?

2 A

This one here, _the front is Dr. Do.

3 Q

I notice there are two dates on these, one 4/4/89,

4 and the other April 5th, '89, could you identify which

5 sheet the one dated 4/4/89 is?

6 A

April 4th, '89 is Dr. Do, and the following date is

7 Dr. Medina.

8 Q

On the sheets, is there any indication of visitation

9 by Mark White?

10 A

Yes, sir. There is a name here, Mark White.

11 Q 12 A

And where does that appear on the first sheet? Under number 17.

13 Q

Number 17?

14 A

Yes.

15 Q

And is there any reference to Mark White on Dr.

16 Medina for April 5th. '89?

17 A

Yes, there is one here, number 6.

18 Q

Number 6?

19 A

Right.

20

MR. DAVIS: Your Honor, we offer this into

21 evidence as the next numbered defense exhibit.

22

MR. LIPMAN: Objection. Your Honor, the

23 document wasn't prepared by Dr. Rodrignp7:. 1 have not

24 heard any indication that it is maintained by him in his

25 capacity as the medical officer of Glades.

Pauline A. Stipes Official Federal Reporter

MR. DAVIS: He indicated it was an official

record of the medical department which comes in under the

governmental exception of the Rule.

THE COURT: I think it gets into that exception

to the hearsay rule all right. I will receive it over that

objection. That is Defendant's 49.

7

MR. DAVIS: 49, Your Honor?

8

THE COURT: Yes.

(Defendant's Ex. 49 received into evidence.)

10 BY MR. DAVIS:

11 Q

Let me show you what will be offered as Defendant's

12 yo. 50 into evidence, and ask you if these are records

13 which are also generated by the medical department, and if

14 they are maintained under your medical department, and if

15 they are maintained under your custodian supervision.

16

My question, are these official records which are

17 maintained?

18 A

In our medical records, yes.

19

MR. DAVIS: Your Honor, we offer these as

20 Defendant's Ex. No. 50.

21

THE COURT: Objection to these?

22

MR. LIPMAN: Same objection as the previous

23 exhibit.

24

THE COURT: All right. Received over that

25 objection.

Pauline A. Stipes Official Federal Reporter

(Defendant's Ex. 50 received into evidence.) BY MR. DAVIS:

Q

Doctor, let me ask you to refer to specific items in

here, and identify them, please. First the last page of

¢his exhibit, would you indicate what that is?

6

THE COURT: Last page of number 50?

7

MR. DAVIS: Yes.

8

THE WITNESS: This is the form we use from the

emer9e"cy room at our institution.

10 BY MR. DAVIS:

11 Q

Is that in particular an emergency report for a

12 particular inmate?

13 A

Yes. It has the name of Mark White, and he was seen

14 April 4th, 1989 at 2:45 P.M..

15 Q

All right. vDid that include a complaint of alleged

16 sexual assault?

17

A

ge said here April 3, 1989, he was raped time twice,

18 at 12 midnight and 3 a.m., 4/3/89, in DC number 5, by

19 another inmate under force..

20 Q

All right. Who saw him on that occasion?

21 A

According to this, Dr. Do.

22 Q

Dr. Do?

23 A

Yes.

24 Q

Was there any indication of reference at that time

2 5 for counseling?

Pauline A. Stipes Official Federal Reporter

749

¯Ã

Yes, here it says will see the doctor again in

2 cmorning for counseling..

3Q

All right, sir.

4

THE COURT: I can't read that, will see

5 something again in the morning for counseling.

6

MR. DAVIS: I think that is M.D..

Is that M.D.?

8

THE WITNESS: Will see M.D. again in the

9 morning for counseling, and I don't know the other word.

10 Testing, I don't know.

11

THE COURT: Yes, might be testing. Okay.

12 BY MR. DAVIS:

13 Q

Let me go two sheets from that, and ask you what that

14 item is, entitled Glades General Hospital?

15 A

Well, we do receive several of these forms, when we

16 send patients to Glades General Hospital to the emergency

17 room. We get some of the copies from the records there,

18 and this seems to be a record from Glades Hospital, the.

19 emergency room.

20 Q

Is this pursuant to the policy of referring sexual

21 assault victims to the local hospital for the forensic

22 examination?

23 A

Yes.

24 Q 25 A

And is this the referral for Mark White? It says here, Mark White, yes.

Pauline A. Stipes Official Federal Reporter

1 Q

Okay. Going two more pages forward to a sheet, would

2 you identify what this sheet is first?

3 A

Well, this is one of the progress notes that we use

4 in our medical record.

5 Q

And what is the bold heading at the top?

6 A

.Glades Correctional Institution.

7 Q

And what is the first date in the left-hand column?

8 A

March 23, 1989.

9 Q

Do you have any entries in that?

10 A

Of myself?

11 Q

Yes.

12 A

Yes, sir.

13 Q

And where is your entry?

14 A

My entry April 6, 1989, 8 o'clock in the morning.

15 Q

Where did you see the inmate April 6, 1989?

16 A

Well, L do make rounds every evening in confinement.

17 and I go cell by cell, and I ask if there is anything wrong

18 with them, if they need any medication, if anybody is sick,

19 s„o we could bring them to the clinicf and examine them, or 20 if it is a minor thing, and we can treat them there.

21

In this case I happen to see Mr. White in

22 confinement, and seems like he has some kind of a problem

23 with his nose, and he asked for nasal spray, and I order

24 nasal spray for him.

25 Q

Was that the only complaint he indicated?

Pauline A. Stipes Official Federal Reporter

751

1 II Ã

Yes, Tî it is anything else, I would have written it.

2 Q

Now, the entry above it, 4/4/89, can you identify

3 whose entry that is?

4 A

Well, that is from the nurse working the evening,

5 Mrs. Joch, and she is a registered nurse, a nurse

6 supervisor in the evening.

7 Q

All right. What is that entry in reference to.?

8 A

It seems to be in reference to Mr. White and it said

9 — You want me to read what she wrote?

10 Q

Just describe the function of that entry?

11 A

The nurse, she saw this inmate, and she questioned

12 him, and he was feeling nervous, and, so forth, and she

13 wrote here in the progress report.

14 Q

Was there a referral to Dr. Medina here?

15 A

jfes, after the assessment, she said call Dr. Medina,

16 and Dr. Medina, too anxious, something anxious, and he

17 recommended 75 milligrams PO by mouth, BID, twice a day,

18 V¯isteril, and then to see Dr. Medina in a.m., on April

19 5th, 1989. 9 o'clock..

20 Q

So that —

21 A

telephone order by Dr. Medina,.

22 Q J5he telephoned Dr. Medina, and prescribed medication

23 for him?

24 A

Yjejs, a n d scheduled an a p p o i n t m e n t for the following

25 day.

Pauline A. Stipes Official Federal Reporter

1 Q

Scheduled an appointment for the 5th at 9:15?

2 A

Right.

3 Q

Going to the first page in the group, could you

4 identify what that page is?

5 A

Well, this is the progress note, or progress report,

6 on the mental — we have two different kind. We have one

7 for the medical department, and one for the mental, and

8 this is one progress report on the mental health care.

9 Q

And—

10 A

Dated April 5th, 1989.

11 Q

What time?

12 A

9;I5 in the morning.

13 Q

Who authored the report?

14 A

Dr. Medina.

15 Q

And who is the patient?

16 A

The patient is Mark White.

17 Q

Let me then move forward from that note, and a l s o —

18 Incidentally, is there an indication that Dr. Medina had

19 previously been seeing the patient?

20 A

Yes. Two entries here from the progress report, one

21 October 6f 1982, and one November 10, 1988,

22 Q

Okay. And on the next page?

23 A

.There is one here, September 24, 1988, October 6,

24 1982,

25 Q

Is that '82, or '88?

Pauline A. Stipes Official Federal Reporter

753

1 Ã

' 88, ï am sorry.

2 Q

Now, going forward to the next page, which is dated

3 4/18/88, would you identify what the purpose of that 4 particular entry is?

5 A

We11, this is the progress report from the medical we

6 use, dated April 18, 1989, and it is signed by Dr. Do,

7 staff physician, and I believe this is in reference to the

8 fact that this man after having alleged that he was

9 involved in a rape, so forth, he probably went to HIV

10 testing.

11 Q

This is HIV testing note?

12 A

Counseling.

13 Q

Does the note indicate whether he had counseling in

14 regard to the HIV testing procedure?

15 A

Yes, sir, yes.

16 Q

And who gave him the counseling?

17 A

In this case, _Dr. Do.

18 Q

Is that the procedure which your department follows

19 today? That is, that the physician, you, or Dr. Do who is

20 prescribing the test does the counseling for HIV testing?

21 A

We don't do counseling any longer. We do prescribe

22 the test. We don't do the counseling. We have special

2 3 counseling now, where they are trained, and at the present

24 time we have three persons involving this counseling. One

25 is a nurse supervisor, and the other one is a medical

Pauline A. Stipes Official Federal Reporter

1 technician, and the other a nurse practitioner.

2 Q

And these people are trained for sexually related

3 disease and problems?

4 A

Yes, they hold certificate to that effect.

5

MR. DAVIS: No further questions, Your Honor.

6

THE COURT: Any cross?

7

MR. LIPMAN: Yes, Your Honor.

8

THE COURT: We are going to have to stop at one

9 o'clock. We have a telephone conference for people

10 out-of-town coming in at that time.

11

,CROSS-EXAMINATION

12 BY MR. LIPMAN:

13 Q

Dr. Rodriguez, the HIV testing that you referred to,

14 that is required under Florida law, is that correct?

15 A

Yes, sir.

16 Q

Are you aware of that?

17 A

Yes.

18 Q

Do you know when that requirement came into effect?

19 A

I don't know exactly what date.

20 Q

The examination of Mr. White as reflected on the last

21 page of this Ex. 50,. do you have that before you, doctor?

22 A

You mean the one that was conducted at the emergency

23 room, at Glades General Hospital?

24 Q

Yes.

25 A

Ye_s, I have that page.

Pauline A. Stipes Official Federal Reporter

1

MR. LIPMAN: May I approach the witness, Your

2 Honor?

3

THE WITNESS: Is that the one?

4 BY MR. LIPMAN:

5 Q

Right here. You see where I yellowed, under scored a

6 portion of the physical, physician's report of the last

7 page of the emergency room, right here?

8 A

Yes.

9 Q

It states visual exam, redness to anal orifice, is

10 that correct?

11 A

Correct.

12 Q

Would that be consistent with — would that finding

13 be consistent with a sexual assault?

14 A

£ould be.

15 Q

That you would expect redness of the anal orifice?

16 A

Could be.

17 Q

All right. When you or Dr. Do or not are on duty,

18 aj:e there any physicians that are present in the medical

19 center?

20 A

You mean other physician beside me, and Dr. Do?

21 Q

Yes.

22 A

Well, the other physician is Dr. Medina, who is a

23 licensed physician in Florida.

24 Q

And he acts as both a psychiatrist, and general

25 physician?

Pauline A. Stipes Official Federal Reporter

756

¯¯TT ¯¯Ã

No, he is just a psychiatrist.

2Q

So, when you or — when both you and Dr. Do are not

3 on duty, there are no other acting physicians except for

4 Dr. Medina who is a psychiatrist?

5A

No. Maybe Dr. Medina might not be there, either, we

6 have certain hours of working in the institution, although

7 we are on call on weekends.

8Q

Who is on duty when you and Dr. Do are not on duty?

9A

We have a nurse practitioner that comes three times a

10 week, and we refer patients to the hospital, Glades General

11 ^Hospital, if it is a case that needs to be referred there.

12 Q

And last week, how many hours did you and Dr. Do,

13 were you on duty at the hospital?

14 A

Well, Dr. Do work 40 hours a week. I work sometime

15 longer than that.

16 Q

You had indicated that sometime in 1987, the rules

17 were changed for sexual assault victims?

18 A 19 Q

Yes. And YrOu indicated that you refer those inmates who

20 have indicated that they have been sexually assaulted fqr

21 psychiatric care?

22 A

Yes. We have alerted the staff and taught the staff

23 that was the procedure.

24 Q

Since January 1986, other than Mark White, could you

25 name any other inmates that have been referred for

Pauline A. Stipes Official Federal Reporter

757

1 II psychiatric care tõ~Dr. Medina?

2 A

You mean 1986?

3 Q

Yes, since January, 1986, other than Mark White, what

4 other inmates have been referred?

5 A

I don't recall. I recall having sent two patients to

6 Dr. Medina. I would say in '85, '84, I don't know '86, two

7 patients to Dr. Medina, I recall around that time.

8 Q

All right.

9

MR. LIPMAN: Your Honor, I have a few more

10 questions.

11

THE COURT: We are going to have to stop.

12

MR. LIPMAN: I will be quick afterwards.

13

THE COURT: All right. I hoped we got through

14 not only Dr. Rodriguez, but several others.

15

We will be in recess, it has to be about 2:15. We

16 have one other hearing, plus this telephone thing, and we

17 have to get a bite to eat. We will recess until 2:15.

18

(Thereupon, a recess was taken at 1:00 p.m.)

19

(Thereupon, court reconvened at 2:30 p.m.)

20

THE COURT: Doctor, have a seat. Sorry we kept

21 you all through lunch. Those things happen.

22 BY MR. LIPMAN:

23 Q

I just have a few more questions.

24

Dr. Rodriguez, just to expedite this, let me refer

25 you to the exhibit we have been going over. This is

Pauline A. Stipes Official Federal Reporter

758

Defendant's Ex. 50, and some earlier portion of the

2 proceedings I asked you about Dr. Medina's report of April,

3 1989, in which he had seen Mr. White.

4

There is no reference, is there, as to the length of

5 time that he saw the inmate, is there?

6A

No, sir.

7Q

There is no indication that he saw him for any

8 subsequent time for the rape or alleged assault that

9 occurred. He was seen for other things?

10 A

Mot according to his record.

11 Q

Is there any rsfsrpnr:s that you can discern in D^.

12 Medina's records that would indicate that an alleged

13 assault had occurre.d?

14 A

No, sir.

15

MR. LIPMAN: I have no further questions.

16

THE COURT: All right. Redirect, sir?

17

MR. DAVIS: I have no further questions, Your

18 Honor.

19

THE COURT: Thank you, Dr. Rodriguez, you are

20 excused.

21

(Witness excused.)

22

GARY LANE. DEFENSE WITNESS PREVIOUSLY SWORN.

23

THE COURT: Please be seated. You've testified

24 previously, haven't you, Mr. Lane?

25

THE WITNESS: Yes.

Pauline A. Stipes Official Federal Reporter

759

T¯

THE COURT: State your name for the record,

2

THE WITNESS: Gary Lane.

3

THE COURT: You may proceed.

4 5 BY MR. DAVIS:

DIRECT EXAMINATION

6Q

Mr. Lane, you testified previously. Are you acting

7 chief of the psychology department at Glades Correctional?

8A

Acting psychologist, yes.

9Q

Okay. Let me show you what would be offered as the

10 next defense exhibit. Defendant's 51, and ask you if you

11 recognize that?

12 A

Yes, I do.

13 Q

Is this a document which is an official record of thç

14 psychology department of Glades Correctional?

15 A

Yes.

16

MR. DAVIS: Your Honor, we would offer Ex. 51.

17

MR. AMLONG: Without objection.

18

THE COURT: All right. It is received without

19 objection.

20

(Defendant's Ex. 51 received into evidence.)

21 BY MR. DAVIS:

22 Q

Would you describe what this document is?

23 A

Yes, this is a mental status evaluation that is

24 performed on the inmates when they have been in confinement

25 for 30 days, and 30 days thereafter. This is a copy of one

Pauline A. Stipes Official Federal Reporter

done on Mark White¯^

2Q

And what is the date of that?

3A

This is April 6, 1989.

4Q

And who was it that performed — What did you refer

5 to it as?

6A

This is a mental status evaluation.

7Q

Who perform the mental status evaluation of Mark

8 White?

9A

This is done by the mental therapist.

10 Q

And there is another indication on there, or another

11 stamp appears, what is that?

12 A

This is to indicate that the Ph.D. psychologist

13 present at that time had reviewed this, and approved it.

14 Q

And who was that?

15 A

Doctor Pamela Green.

16 Q

Let me show you Defendant's 52 into evidence, and ask

17 you if you recognize this document?

18 A

Yes.

19 Q

And what is this?

20 A

This is a mental status evaluation which would be

21 done in response to the Chaplain's request. This is an

22 evaluation prior to the inmate receiving final approval for

23 marriage.

24 Q 25 A

And who is the inmate? This inmate is Mark White.

Pauline A. Stipes Official Federal Reporter

1 Q

And who authored the evaluatioìï?¯

2 A

J. did this evaluation.

3 Q

And also contains a second signature. Who is that?

4 A

That would be Dr. Pamela Green.

5 Q

And what function did she serve in respect to this

6 evaluation?

7 A

She was my supervisor at that time. All information

8 that went into this had to be approved by her prior to my

9 signature.

10

MR. DAVIS: Your Honor, we would offer exhibit

11 52 into evidence.

12

THE COURT: What is the date of it?

13

MR. DAVIS: The date of it is 12/22/88.

14

THE COURT: Any objection, gentlemen?

15

MR. AMLONG: Your Honor, this is the first time

16 I have seen this. I acknowledge that it is a business

17 record, and an official record. It may contain internal

18 hearsay which I haven't had a chance to look at.

19

MR. DAVIS: We have no purpose — no intention

20 of introducing it for the proof of anything, secondhand

21 hearsay, or hearsay upon hearsay.

22

MR. AMLONG: What is the purpose of introducing

23 it?

2 4

MR. DAVIS: The purpose is to show the prior

2 5 evaluation of the patient to fit in with the post-event

Pauline A. Stipes Official Federal Reporter

1 evaluations of the patient, and to show, among other

2 things, the patient was receiving psychological services

3 ,for some period of time. The document refers to additional

4 services.

5

MR. AMLONG: Your Honor, this predates the

6 alleged rape by — the dates of testing are four and five

7 months prior to it. The actual date of the generation of

8 the report is four and a half months prior to it. I am

9 further objecting to its relevancy. We are not saying they

10 don't have a psychological department. We are saying they

11 don't provide counseling to rape victims. At this time, he

12 was not a rape victim.

13

MR. DAVIS: I think, Your Honor, in reviewing

14 the post-event records, they fit in with the pre-event

15 records to indicate the patient had received a course of

16 treatment, and also showed he knew he was through the

17 psychology department, and was familiar with psychological

18 services. He felt that he needed them. And that it was

19 not a situation of somebody who had never been treated or

20 had received or had delivered to him psychological

21 services. The man was one fully familiar with the receipt

22 or delivery of the psychological services, in addition to

23 showing his evaluation beforehand.

24

THE COURT: I will receive it over objection of

25 counsel for the plaintiff.

Pauline A. Stipes Official Federal Reporter

1

CDefendant's l5x. 52 received into evidence.l

2 BY MR. DAVIS:

3 Q

Mr. Lane, you testified several days ago in respect

4 to a question involving your training in the area of rape

5 crisis management, and X believe your testimony was that

6 you had not had any specific courses in rape crisis

7 management. Is that correct?

8 A

That is correct.

9 Q

Had you in your training had, or in the course of

10 your preparation for your degree, received training in

11 crisis management technique?

12 A

Yes, I have.

13 Q

What is crisis management technique?

14 A

The course work toward the doctorate degree that I am

15 taking now does have course work in psychotherapy and

16 counseling which incorporates crisis intervention as part

17 of the crisis management and part of the course. This is

18 dealing with any psychological trauma that may befall an

19 individual, and how to deal with that psychological trauma,

20 various methods of dealing with it·

21 Q

Would the principles and the crisis management

22 technique be applicable to a range of traumatic crisis,

23 problems, including rape crisis?

24 A

yes, we put all psychological trauma under the

2 5 heading of the crisis management in this particular case.

Pauline A. Stipes Official Federal Reporter

1

MR. DÃvTŠl Your Honor, no further questions.

2

THE COURT: Cross-examination, please.

3

MR. AMLONG: Your Honor, may I have a moment to

4 finish my review of this.

5

THE COURT: Yes, go ahead.

6

.CROSS-EXAMINATION

7 BY MR. AMLONG:

8 Q

Mr. Lane, crisis management technique to rape

9 victims, have you ever applied those crisis techniques to

10 any of the inmates at Glades Correctional Institution?

11 A

I have applied no crisis management technique to any

12 rape victim..

13 Q

What is the educational background of Jose' Rendone,

14 the rehabilitation therapist?

15 A

Mr. Rendone has a Bachelor of Science Degree in the

16 social sciences, and Master's Degree in Divinity.

17 Q

He is not employed as a psychologist, is he?

18 A

No.

19 Q

Hov J¯onq does it take to do a mental status

2 0 examination of an inmate in confinement?

21 A

Anywhere from 10 to 15 minutes.

22 Q

Do you have any idea how long this one took?

23 A

No.

24 Q

And .nowhere on here does it note he had been a rape

25 victim, does it?

Pauline A. Stipes Official Federal Reporter

765

2 Q

Would his being a rape victim be significant?

3 A

If it were significant to him, and he brought this

4 out at that time, it would certainly be put on this sheet,

5 yes,.

6 Q

He had a preexisting adjustment disorder with anxious

7 mood, in remission, and withdrawing, independent of a

8 personality trait, did he not?

9 A

Are you basing this on the evaluation I did?

10 Q

Yes.

11 A

Yes, that was the diagnosis that I rendered in this

12 case.

13 Q

And that diagnosis of adjustment disorder preceded

14 the rape?

15 A

Yes.

16 Q

All right. Thank you.

17

MR. AMLONG: No further questions.

18

MR. DAVIS: No further questions, Your Honor.

19

THE COURT: Okay, you may step down, thank you,

20 sir.

21

(Witness excused.)

22

RONNIE WHITE, DEFENSE WITNESS SWORN

23

THE COURT: Please be seated.

24

25

Pauline A. Stipes Official Federal Reporter

766

¯¯T¶

DIRECT EXAMINATION

2 BY MR. DAVIS:

3 Q

State your name, please.

4 A

Ronnie white.

5 Q

Mr. White, where do you reside?

6 A

Clewiston, Florida.

7 Q

What is your employment?

8 A

I work at Glades Correctional Institution.

9 Q

What is your position?

10 A

I am a correctional training officer.

11 Q

And what function does correctional training officer

12 perform?

13 A

Basically he co-ordinates training for the staff at

14 the institution.

15 Q

Which staff does that apply to?

16 A

All the staff.

17 Q

And in respect to the — to your background, could

18 you give the court some indication of that, both, your

19 education and in respect to your work?

20 A

I have a Bachelor's Degree in Criminal Justice. I

21 started off my career with the Department of Corrections as

22 an officer. I worked as a probation and parole officer,

23 classification officer, and training officer.

24 Q

How long have you been employed at Glades

25 Correctional?

Pauline A. Stipes Official Federal Reporter

1 A

Since September f88.

2 Q

Prior to that?

3 A

Martin Correctional Institution.

4 Q

Would you tell the court, please, what the amount of

¿raining is required of a new recruit for a correctional

officer position at Glades Correctional?

A

iipnn his being hired, he goes through a 40 hour

orientation to the rules and regulations of the

institution, and some of the State rules and regulations.

10 Then when the Basic Recruit Academy is scheduled, he is

11 Required to successfully complete a 480 hour program

12 established by the Florida Department of Law Enforcement

13 Division of Standards and Training.

14 Q

All right. Let me show you what would be offered as

15 Defendant's Fv Uo. 53 into evidence. Let me ask you if

16 you recognize, or are familiar with these documents?

17 A

Ygs, I am.

18 Q

Are these documents records of Glades Correctional

19 Institutional?

20 A

Pardon me?

21 Q

Are these documents of Glades Correctional

22 Institution?

23 A

The first three pages of are the mandatory subjects

24 established by the training department in Tallahassee for

25 the entire state.

Pauline A. Stipes Official Federal Reporter

768

i™j] Q Are those the training reguTãtiõrís that apply to

2 Glades Correctional?

3 A Yes.

4 Q

And those are, in fact, at Glades?

5 A Yes.

6 Q

And what is the final page?

7 A

The legal size page is a copy of the orientatipn

8 schedule that is run when we have enough people to

9 establish orientation for new employees.

10 Q

The final page on this sheet, is that the 40 hour

11 initial course that you refer to?

12 A

Y_es, sir.

13

MR. DAVIS: Your Honor, we offer Ex. 53 into

14 evidence.

15

THE COURT: Gentlemen, do you have any

16 objection to that?

17

MR. AMLONG: No, Your Honor.

18

THE COURT: All right. It is received without

19 objection.

2 0

(Defendant's Ex. 53 received into evidence.)

21 BY MR. DAVIS:

22 Q jVfter a recruit is hired, and he received the 40 hour

23 training, does he receive any further training?

24 A

Yes, he does.

25 Q

And what is that?

Pauline A. Stipes Official Federal Reporter

¯I Ã

He goes through the Basic Recruit Academy at Palm

2 Beach Community College, Glades campus.

3 Q

And what does the curriculum consistt of in terms of

4 hours?

A

It is a minimum requirement of 411 hours, and the

program that Palm Beach Community College puts on is 480

hours.

Q

So that is in excess of the required minimum?

A

Yes.

10 Q

Let me show you what will be offered into evidence as

11 Ex. 54 of the defendant, and ask you if you recognize the

12 documents there?

13 A

Yes, I do.

14 Q

And what do these documents reflect?

15 A

The first five pages is the curriculum summary of the

16 basic recruit program, and then the schedules that follow

17 is^j:he basic recruit schedule presented by Palm Beach

18 Community College, Glades campus.

19 Q

All right.

20

MR. DAVIS: Your Honor, we offer this as

21 Defendant's Ex. 54 into evidence.

22

THE COURT: Objection?

23

MR. AMLONG: No.

24

THE COURT: It is received without objection.

25

(Defendant's Ex. 54 received into evidence.)

Pauline A. Stipes Official Federal Reporter

770

BY MR. DAVIS:

Q

Going back to 53, you described the legal size page,

what is the document that is on the letter size page on Ex.

No. 53?

A

These are topics that are considered mandatory

graining areas by the Bureau of Staff Development in

7 Tallahassee.

8 Q

And what purpose do they serve in the training of the

9 correctional officer staff at Glades Correctional? Are

10 these part of the basic original training program?

11 A

Some of them are part of the basic curriculum, but

12 they are in addition to the training they have to have

13 every year.

14 Q

Is that then a continuing educational curriculum?

15 A

Yes, it is.

16 Q

How many hours of continuing educational curriculum

17 from that list is required each year?

18 A

Of this particular list?

19 Q

How many hours of continuing educational courses are

20 required?

21 A

f!nrrprt·.ional officers are required to have 40 hours

22 of training each year.

23 Q

Do they come from that list of topics?

24 A

Some of them do, yes.

25 Q

Is there additional training that officers have

Pauline A. Stipes Official Federal Reporter

771

¯~T available to them besides the prescribed courses that are

2 evidence here?

3 A

Yes, there is.

4 Q

What is that?

5 A

The Department of Criminal Justice Standard and

6 Training have established a set of 33 courses of

7 approximately 40 hours each that the officers have an

8 opportunity to take, and once they take 240 hour blocks,

9 they received salary and benefits for it.

10 Q

Is there a term for those courses?

11 A

They are advanced courses.

12 Q

Now, within the basic curriculum, the required

13 curriculum which a correctional officer must receive at

14 Glades Correctional, is there any training which teaches

15 the correctional officers to be sensitive to the needs and

16 ^he problems of inmates?

17 A

Would you repeat that, please?

18 Q

Is there any portion of the curriculum which

19 instructs the correctional officers in the needs of the

20 inmates and the importance of being sensitive to those

21 needs?

22 A

In the Basic Recruit Academy, we have approximately

23 an 86 hour block of interpersonal training, and in that

24 J3lock, quite a few subjects are taught in that area.

25 Q

Does that teach the staff to recognize problems that

Pauline A. Stipes Official Federal Reporter

772

1 inmates might have that might require additional sëTvicTës?

2 A

Yes.

3

MR. DAVIS: Your Honor, I have no further

4 questions.

5

THE COURT: Cross.

6

CROSS-EXAMINATION

7 BY MR. TUCKER:

8 Q

Good afternoon. Mr. White, do you have any training

9 specifically in the investigation of homosexual rape?

10 A

Do I?

11 Q

Yes,sir?

12 A

No.

13 Q

Do you teach any courses in your training position on

14 that subject?

15 A

On—

16 Q

On the subject of investigation of homosexual rape?

17 A

No, I don't.

18 Q

Have you ever investigated a homosexual rape at

19 ¢lades?

20 A

I have never investigated anything.

21

MR. TUCKER: No further questions.

22

THE COURT: Redirect.

23

REDIRECT EXAMINATION

2 4 BY MR. DAVIS:

25 Q

You are not the instructor of the entire course, are

Pauline A. Stipes Official Federal Reporter

773

2 A

NO.

3 Q

`Is there a faculty which teaches at the Palm Beach

4 Community College that teaches this curriculum?

5 A

The biggest majority of people that teach the

6 curriculum are people that have been certified through

7 Criminal Justice Training and Standards, and not

8 necessarily the faculty of the college.

9 Q

Are members of the faculty also involved in the

10 program?

11 A

We have people that are adjunct faculty members, yes,

12 that teach.

13

MR. DAVIS: No further questions.

14

THE COURT: All right. You can step down,

15 thank you, sir.

16

(Thereupon, the witness was excused.)

17

MR. DAVIS: Your Honor, at this time, the

18 defense would rest.

19

MR. AMLONG: The plaintiffs have no rebuttal.

20 Your Honor.

21

THE COURT: You are saying plaintiffs have no

22 rebuttal?

23

MR. AMLONG: No rebuttal.

24

THE COURT: All right. That winds up the

25 presentation of the evidence, then. I want you to check

Pauline A. Stipes Official Federal Reporter

1 before you leave to be sure we have all the exhibits that

2 have been offered in evidence either for receipt in

3 evidence, or for identification.

4

MR. DAVIS: Your Honor, there is one problem,

5 that is the document identified by counsel as what were the

6 back pages of the original copy we have did not get copied

7 on the other copies. We need to copy those, and provide

8 them to counsel, and to the court.

9

THE COURT: All right. Suppose you take that

10 exhibit. Which one is it? I don't remember the number

11 offhand.

12

MR. TUCKER: I believe that was Ex. 30.

13

THE COURT: Seems to me it was Defendant's No.

14 30, operating procedures, or was it 31?

15

MR. DAVIS: 30. We will copy the entire —

16 this is a double sided original.

17

MR. AMLONG: Why don't we substitute that as

18 the exhibit.

19

MR. DAVIS: That is fine.

20

MR. AMLONG: I believe the videotape was

21 admitted.

22

MR. DAVIS: If we could have, Your Honor, since

23 I think we have indicated the opportunity to provide some

24 objections on some other matter through the time that we do

25 our — to address objections in the proposed findings, if

Pauline A. Stipes Official Federal Reporter

we should see anything in the video tape if we could raise

it at that time.

I don't see it being a real problem. The vast

majority of the videotape will be admissible. If we have

any objections, it would be to the verbal.

6

THE COURT: Only to the audio part of it?

7

MR. DAVIS: Right, that the only thing we would

8 have objection to, and we could note what those are, and

9 the court could make your ruling on it.

10

MR. AML·ONG: The only part of the audio that is

11 going to be in evidence is the part that the court reporter

12 transcribed because she was sitting there listening to the

13 audio, whenever it was fast forwarded, there was no audio,

14 and since we are having this transcribed.

15

MR. DAVIS: That is true as far as testimonial,

16 or presentational evidence, but the real evidence contains

17 dialogue which was not transcribed, which will still be in

18 evidence because it was part of the exhibit. It has

19 evidentiary value. I see it being no serious problem. We

20 w,ill indicate which wording, and since we have been

21 provided with a videotape, we could indicate what time

22 sequence it is, and what the words are, and what our

23 objection is. and the court can rule on that basis, leaving

24 the videotape in evidence.

2 5

THE COURT: Okay. If you want to make a

Pauline A. Stipes Official Federal Reporter

1 stipulation Tñ that respect, go ahead and do so. ï tell

2 you, frankly, I am not planning to look at the videotape

3 again. You may want to have your stipulation for whatever

4 review there might be.

5

MR. AMLONG: That is fine, if you have any

6 objection, specify them. All the material that has been

7 transcribed by the court reporter would not be subject to a

8 non-contemporaneous objection.

9

MR. DAVIS: We have no objection what is

10 previously heard, and transcribed.

11

THE COURT: All right. I will count on you to

12 take care of that and I will approve it whatever it is. Go

13 over the rest of the exhibits, and be sure they are all

14 here. We will keep them for awhile. In this case, it is

15 going to have to go to the appellate court. We will have

16 the clerk keep these exhibits, and send them up.

17

MR. DAVIS: Actually, it is not on appeal. The

18 court order, it did not have jurisdiction, because it was

19 not final. O n c e —

20

MR. AMLONG: I have a strong idea you are going

21 to do just that.

22

MR. DAVIS: One or the other of us of us will.

2 3

MR. AMLONG: So it is going up anyway. If it

24 would facilitate if the court would keep the exhibits.

25

THE COURT: Ordinarily, we like the lawyers to

Pauline A. Stipes Official Federal Reporter

¯~¯I take the exhibits back. Just recently we were informed

2 that the appellate court is bent out of shape because we

3 enter into the stipulations which is contrary to some

4 appellate rule that we are supposed to keep them. We are

5 probably going to have to do that now in all cases. We

6 might as well start with this one.

7

MR. AMLONG: The court will take comfort in the

8 fact you won't have to keep this for more than 30 days.

9

MR. DAVIS: There is one other evidence. That

10 is the motley collection of shanks we have.

11

THE COURT: You said you would photograph

12 those.

13

MR. DAVIS: I didn't want to waste the entire

14 roll of film with one picture. Within the next few days,

15 when we use up the roll, we will send copies of the print

16 to counsel, and a copy to the court as an exhibit, which

17 would be the next numbered exhibit, I guess.

18

THE COURT: Okay, I will make a note of that.

19

MR. DAVIS: That will be 55.. We will mark it

20 as Defendant's 55.

21

THE COURT: And then in 30 days you will let us

22 have your proposed disposition of this case along with

2 3 whatever briefing. It will be sixty days, if you take all

24 tjae time we are allowing. And then we will take a look at

25 ¿t_.

Pauline A. Stipes Official Federal Reporter

778

Is there anything else we ought to put in the record,

gentlemen?

MR. DAVIS: No.

4

MR. AMLONG: No.

5

THE COURT: If not, I appreciate your

6 presentation. It has been a very good one from the

7 standpoint of lawyers on both sides.

8

The ball is in our court now.

9

MR. AMLONG: Your Honor, I was speaking with

10 your law clerk, I believe the court personnel use Word

11 Perfect, and I was proposing in addition to submitting

12 written proposals that we submit discs with the proposals,

13

THE COURT: Okay, that will be real helpful.

14

(Thereupon, the hearing was concluded. )

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

79

¯¯r

CERTIFICATION

2

3

"I certify that the foregoing is a correct transcript

4 from the record of proceedings in the above-entitled

5 matter.

6

7

8

9

10

Official Reporter

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Pauline A. Stipes Official Federal Reporter

 
 At<¯

JX£

APR 3 0 1890

UNITED STATES DISTRICT COURT

1

í Ci_£f!Ki.l.S.Û!ìf'o ¡

L·__ ^ ¡,\ or Ì¯LA. w.p.e

2

SOUTHERN DISTRICT! OF FLORIDA CASE NO.82-8196-CIV-PAINE

ANTHONY LaMARCA, MARTIN

3

SAUNDERS, and EDWIN JOHNSON,

individually and on behalf of

4

all others similarly situated,

and DAVID ALDRED, STEVE H. BRONSON, JR.,

5

EDDIE COBB, RON DDRRANCE, WAYNE EPPRECHT,

MICHAEL GORDON, and BILLY JOE HARPER,

6

individually.

LaMarca v. Turner

7

Plaintiffs,

8

vs.

PC-FL-0007-0035

9

R.V. TURNER, individually in his

former capacity as Superintendent of Glades

10

Correctional Institution, CHESTER LAMBDIN, in

his official capacity as Superintendent of

11

Glades Correctional Institution,

12

Defendants.

13
FINAL JUDGMENT
14

15
This action came on before the Honorable James C. Paine,
16
United States District Judge, presiding. On this day the
17
Court has entered its Findings of Fact and Conclusions of Law
18
regarding injunctive relief in favor of the Plaintiffs and
IS
against the Defendant. Therefore, in accordanc 3 with this
20
court's previous Order on Report and Recommendation of
21
Magistrate reprinted in Lamarca v. Turner, 662 F. Supp. 647,
22
650-667, and the-Order of April 29, 1990, it is hereby
23
ORDERED and ADJUDGED that the Court's previous judgment
24
entered on June 4, 1987, Lamarca, supra. 662 F. Supp. at 666-
25

26

AO72 (Rev.8/82)

67 is readopted and in continuing effect except tìs modified

or rejected by the court's Order of June 4, 198 , Lamarca.
1

supra. 662 F. Supp. 650-666 and the April 29, : 990 order.
2

Additionally, it is
3

ORDERED and ADJUDGED that judgment shall be entered
4

effective on June 4, 1987 for Plaintiffs Lamarca Saunders,
5

Johnson, Aldred, Bronson, Cobb, Durrance, and Harper and
6

against Defendant Turner in accordance with the following
7

award of compensatory damages for Turner's violation of
8

Plaintiff's constitutional rights:
9

(1) ANTHONY LAMARCA 10

$9,000.00

(2) MARTIN SAUNDERS 11

$30,000.00

(3) EDWIN JOHNSON 12

$13,000.00

(4) DAVID ALDRED 13

$30,000.00

(5) STEVE H. BRONSON, JR.

$30,000.00

14

(6) EDDIE COBB

$6,500.00

15

(7) RON DURRANCE

$30,000.00

16

(8) BILLY JOE HARPER

$30,000.00

17

Interest on the Judgment shall run from the date of the first

18 Judgment of June 4, 1987 until paid, at the rate of 7.02
19
percent. Further, it is

20 ORDERED and ADJUDGED that regarding the claims of

21 Plaintiffs Epprecht and Gordon, judgment is ente ed against

22 for Defendants and against Plaintiffs, the Plaintiffs to have

23 nothing. Finally, regarding the claim for injunctive relief,

24 it is

25

26

AO72 (Rev.8/82)

ORDERED and ADJUDGED that the Defendant Cheste:: Lambdin,

Superintendent of GCI, is affirmatively enjoined to carry out
1
the following required courses of action:
2

Regarding the Security staff patrol in the dormitory areas;
3

1. Any opaque glass panes in the shower area wh:.ch impede
4

visibility of the wicket officer must be replaced with clear
5

glass. These panes are to be cleaned and maintained clear;
6

when same again become opaque from grime, they must be
7

promptly replaced.
8

2. An official policy regarding the frequency of the roving
9

patrols must be promulgated and enforced. Guards should be

10
warned that the failure to patrol will result in same sort of

11
disciplinary action against them; repeated failure to comply

12
with the roving patrol policy could result in the termination

13
of the guard.

14
Regarding the control of movement of inmates from the North

15
Compound to the Main Compound i

16
1. The metal detector located between the North and Main

17
Compound must be kept operative and in good repair Frequent

18
inspections of same should be conducted to asusre it is

19
operating correctly.

20
Regarding Conditions in protective confinement;

21
1.

There shall be no double-bunking in protective

22
confinement.

23 2. There shall be no prolonged stays in protective

24
confinement; any stay in excess of 30 days is a prolonged

25

26

AO 72 (Rev.8/82)
._L

stay.
.3. There shall be swift transfer of any inmate Who is in
1
protective confinement and for whom it has been determined
2
that return to the general prison population would be unsafe.
3
4. The lighting in protective confinement must mept the ACA
4
requirement.
5
5. The roving patrol by the officer guarding protective
6
confinement must be enforced. Any violation should be
7
sanctioned in the same manner as noted above, that is,
8
disciplinary action and/or termination for repeated failure
9
to patrol.
10
Regarding Control of contraband within the prison
11
1. The Superintendent must promulgate and publish to all
12
guards and inmates an official policy on the handling and
13
severity of a violation involving all contraband , including
14
drugs, alcohol, weapons.
15
2. Additionally, he must institute a consistently harsh,
16
standard penalty for those prisoners found in po¡ssession of
17
contraband.
18
3. The staff must perform regular "shake-doi is" of the
19
dormitories to detect the presence of contraband.
20
Additionally, the guards must be warned that the repeated
21
discovery of contraband in the area for which they are
22
responsible will result in disciplinary action against them.
23
Continuous discovery of same could result in termination.
24 4. The staff must conduct thorough searches far contraband
25
26
AO72 (Rev.8/82)

of all those entering the. compound, including the guards
reporting for work each day.
1
5. The metal detector at the entrance to the compound must
2
be operative at all times; regular inspections must be
3
conducted to assure same.
4
Regarding Homosexual Rape and the acceptance by staf f of overt
5
homosexual activity among inmates;
6
1. The Superintendent must institute an official procedure
7
for the prompt investigation of all alleged sexua assaults;
8
he must see that same is enforced.
9
2. He must see that all alleged cases of sexual ssault are
10
referred to the state attorneys office for possible
11
prosecution.
12
Regarding the lack of psychological counseling f¦or inmates
13
who have been sexually assaulted:
14
1. The Superintendent must provide training for all prison
15
guards in the handling of rape complaints, Tiis should
16
include education regarding the seriousness of a homosexual
17
assault in prison.
18
2. The Superintendent must require the staff psych atrist and
19
the staff psychologist to acquire special training In the form
20
of a course or seminar on rape crisis management
21
3. He must promulgate an official referral procedure of all
22
rape victims to the resident psychiatrist or psych logist for
23
evaluation. Finally, it is
24
ORDERED and ADJUDGED that the Plaintiffs, as prevailing
25
26
AO72 (Rev.8/82)

parties, are required to submit affidavits in support of an

award of fees and costs within 20 days of the d te of the
1
court's final order; the Defendant shall have 10 days
2
thereafter to respond to same. The court will th ¾n enter a
3
post-judgment order regarding the award of attorney s fees and
4
costs.
5 Dated at West Palm Beach, Florida on this ¾ day of
6
April, 1990.
7

8
ROBERT M. MARCH, CLERK
9

10
11 cc:
12 David M. Lipman, Esq. James A. Tucker, Esq.
13 William R. Amlong, Esq. Michael Davis, Esq.
14 Walter Meginnis, Esq.

Svava Ringheim, Deputy/Clerk

15

16

17 18

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.

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19

20

21

22

23

24

25

26

AO72 (Rev.8/82)

 
 662 F.Supp. 647 (1987)
Anthony LaMARCA, Martin Saunders, and Edwin Johnson, individually and on behalf of all others similarly situated, and David Aldred, Steve H.
Bronson, Jr., Eddie Cobb, Ron Durrance, Wayne Epprecht, Michael Gordon, and Billy Joe Harper, individually, Plaintiffs, v.
R.V. TURNER, individually in his former official capacity as Superintendent of Glades Correctional Institution, Chester Lambdin, in his official capacity as Superintendent of Glades Correctional Institution,
and the State of Florida, Defendants.
No. 82-8196-Civ.
United States District Court, S.D. Florida.
June 4, 1987.
648*648 649*649 650*650 David M. Lipman and Robert E. Weisberg, of Lipman & Weisberg, Miami, Fla., and William Amlong of Hall & Amlong, Fort Lauderdale, Fla., for plaintiffs.
Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, Fla., and Michael B. Davis, of Davis, Critton, Hoy & Diamond, West Palm Beach, Fla., for defendants.
ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE
PAINE, District Judge.
This cause comes before the court on the report and recommendation of the Magistrate (DE 128), defendants' amended response and objections (DE 155), and plaintiffs' reply (DE 170). The court has studied these submissions and has reviewed the voluminous transcripts, exhibits, and other materials in the case file as well as the relevant authorities. Now being fully advised, the court renders the following memorandum and order.
I.
BACKGROUND
This class action for damages and injunctive relief was brought by inmates who claim that their federal constitutional rights were violated when they were gang raped or otherwise assaulted while incarcerated 651*651 at the Glades Correctional Institution (GCI), a state prison in Belle Glade, Florida. The procedural history of the case is set out at length by the

Magistrate. Briefly, this litigation was commenced on May 14, 1982 with the handwritten pro se complaint of Anthony LaMarca, who alleged that he was subjected to ongoing physical violence and harassment by other GCI inmates because he refused to participate in homosexual activity and that prison officials failed to act to alleviate the situation (DE 1). As the lawsuit continued, counsel was obtained and the complaint was amended several times (DE 23, 62, 93, 129, 131). On April 13, 1984, the undersigned district judge ordered that for purposes of injunctive relief the case proceed as a class action defined as those persons within the Florida prison system who are or will be incarcerated at GCI (DE 47).
The third amended complaint contains claims for damages by ten inmates. Named plaintiffs LaMarca, Saunders and Johnson also seek equitable remedies on behalf of the class. Defendant Turner is sued in his individual capacity as former superintendent of GCI. Defendant Lambdin, the current superintendent, is sued solely in his official capacity for purposes of injunctive and equitable relief (DE 129). The State of Florida is a defendant for purposes of attorneys' fees and expenses.
The district court referred the case to United States Magistrate Peter Nimkoff for a report and recommendation pursuant to Magistrate Rule 1(f) of the Local Rules of the Southern District of Florida. The Magistrate conducted two weeks of evidentiary hearings, reviewed deposition testimony and numerous exhibits, and heard oral argument. The Magistrate then filed a 135-page report and recommendation containing findings of fact and conclusions of law (DE 128) which found Turner liable to the ten named plaintiffs in the aggregate amount of $201,500 and recommended the creation of two committees to assist the court in formulating specific injunctive relief.
Defendants filed extensive objections to the Magistrate's report in accordance with Local Magistrate Rule 4(b) (DE 155). Defendants dispute the Magistrate's failure to grant a continuance, to grant a jury trial, and to recuse himself from the proceedings, and also lodge numerous objections to specific findings of fact and conclusions of law. Plaintiffs submitted an equally extensive reply (DE 170).
II.
STANDARD OF REVIEW
The court's review of the Magistrate's findings and recommendations is governed by a de novo standard:
A District Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. The District Judge, however, need conduct a new hearing only in his discretion or where required by law, and may consider the record developed before the Magistrate, making his own determination on the basis of that record. The District Judge may also receive further evidence, recall witnesses, or recommit the matter to the Magistrate with instructions.

Magistrate Rule 4(b), Local Rules of the Southern District of Florida; accord 28 U.S.C. § 636(b)(1) (1982).
The Supreme Court has held that, in providing for a de novo "determination" rather than a de novo hearing, "Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a Magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2413, 65 L.Ed.2d 424 (1980). The former Fifth Circuit has held that, in situations involving the constitutional rights of a criminal defendant, a district court should not enter an order inconsistent with the Magistrate's credibility determinations without personally hearing the live testimony of the witnesses whose testimony is determinative. Louis v. Blackburn, 630 F.2d 1105, 1109 (5th 652*652 Cir.1980).[1] Although the Louis court expressly limited its holding to criminal cases, see id. n. 3, the exercise of sound judicial discretion compels this court to extend substantial deference to the Magistrate's credibility choices absent counterveiling considerations. In a criminal case which preceded Louis, the Fifth Circuit stated:
In our view it would be a rare case in which a district judge could resolve credibility choices contrary to the recommendations of the magistrate without himself having had an opportunity to see and hear the witnesses testify. Certainly, in such a rare case there should be found in the transcript an articulable basis for rejecting the magistrate's original resolution of credibility and that basis should be articulated by the district judge.
United States v. Marshall, 609 F.2d 152, 155 (5th Cir.1980).
III.
FAILURE TO GRANT JURY TRIAL
Defendants first object to the Magistrate's failure to grant a jury trial. The Magistrate found that defendants waived that right by failing to make a demand within ten days of November 2, 1983, when they filed an answer to the first amended complaint (DE 23, 41). Defendants first demanded a jury trial on November 8, 1985, over two years later, in response to the second amended complaint (DE 62, 69, 83). Following the Magistrate's denial of a jury trial (DE 105), defendants filed an emergency appeal with the district court (DE 104), which the undersigned denied (DE 112).
Defendants again argue that the second and third amended complaints introduced new issues into the lawsuit which merited a jury trial and that therefore their demand was timely. As the Magistrate correctly concluded, the right to jury trial is waived by a failure to make a demand within ten days of the "last pleading directed to such issue." Fed.R.Civ.P. 38(b). If the original pleadings effectively waive jury trial, the right cannot be revived by amending the original pleadings. Walton v. Eaton Corp., 563 F.2d 66, 71 (3d Cir.1977). A jury trial may be demanded, however, for any "new issues" in the amended pleadings. Amendments not introducing new issues do not give rise to a demand for jury trial. Guajardo v. Estelle, 580 F.2d 748, 753 (5th Cir.1978).[2]

What constitutes a "new issue" is the bone of contention. The court's review of the law on this subject has yielded less than clear results. The former Fifth Circuit has said that "[t]he term `new issues' has been interpreted to mean new issues of fact and not new theories of recovery." Id. at 753. Notwithstanding, not every new fact question has been held to give rise to a jury trial. For example, in Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir.1973) (en banc), a securities case, the court held that a claim for punitive damages and an allegation of willfulness were not new issues within the meaning of Rule 38:
The willfulness and falsity as of a particular date merely clarified "the same general issues" raised in the original complaint. Moore v. United States, 196 F.2d 906, 908 (5th Cir.1952). Kircher had been put on notice of the underlying facts and basic legal theory — fraud — upon which plaintiffs sought relief, and the character of the suit was in no way changed by the amendments.
Id. at 1310 (emphasis added). One district court has articulated the following standard:
The test to be employed by a court in ruling on a motion to strike a jury demand is whether the "new issues" alleged in the amendments "touch ... the same general issues" raised by the original pleadings, Roth v. Hyer, 142 F.2d 653*653 227, 228 (5th Cir.1944), or whether the issues contained in the amended complaints "were in any material way different from those presented by the original [complaint]." Connecticut General Life Insurance Co. v. Breslin, 332 F.2d 928, 931 (5th Cir.1964).
Reading & Bates Construction Co. v. Baker Energy Resources Corp., 96 F.R.D. 564, 565 (S.D.Tex.1983) (emphasis added).
In this case, the second and third amended complaints introduced claims for damages by seven new plaintiffs. As defendants contend, each of these claims requires proof as to whether the alleged incidents occurred, whether the evidence establishes a causal connection with defendants' conduct, and whether damages have been sustained. All of these questions raise "new" factual issues in the plainest sense of the word.
The peculiar circumstances of this case, however, suggest a contrary result. First, the record of the evidentiary hearings conducted by the Magistrate provides the court with 20/20 hindsight on the nature and materiality of the new factual issues. Second, a class action posture requires that the plaintiffs raise common questions of fact. See Fed.R.Civ.P. 23(a). Of particular relevance is the testimony of the named plaintiffs and of Dr. Richard M. Swanson, plaintiffs' expert witness in the field of correctional psychology. Considered as a whole, this evidence shows that plaintiffs' claims possess a factual congruity of sickening proportion. Their stories are strikingly similar, reflecting common experiences of harassment, threats, attack, official indifference, and resulting damage. The similarity of the factual questions is particularly apparent in the court's analysis of the causal connection between Turner's acts or omissions and plaintiffs' claims. See infra at 681-682.
Thus, the issues raised by the seven new plaintiffs in the second amended complaint "touch ... the same general issues" raised in the first amended complaint, Roth v. Hyer, 142 F.2d 227, 228 (5th Cir.1944), and are not materially different from the original issues, see Connecticut General Life Insurance Co. v. Breslin, 332 F.2d 928, 931 (5th Cir.1964); see

also Reading & Bates, 96 F.R.D. at 565. The first amended complaint put defendants "on notice of the underlying facts and basic legal theory ... upon which plaintiffs sought relief, and the character of the suit was in no way changed by the amendments." Lanza, 479 F.2d at 1310. Having failed timely to demand a jury trial in response to the first amended complaint, defendants effectively waived their right to such a trial, and their objection is overruled.
IV.
FAILURE TO GRANT CONTINUANCE
Defendants next object to the Magistrate's failure to grant a continuance of the evidentiary hearings. This court has previously denied defendants' emergency appeal of the Magistrate's ruling (DE 104, 112).
Orders concerning the conduct of a trial, such as continuances, "are peculiarly within the jurisdiction of the trial court" and "will not be disturbed except upon a showing of abuse of discretion, and then only upon a showing that such abuse of discretion resulted in substantial harm to the parties seeking relief." Edward Leasing Corp. v. Uhlig & Associates, Inc., 785 F.2d 877, 881-82 (11th Cir.1986).
Defendants principally assert that they were not prepared to defend against the damage claims because circumstances forced them to depose the seven new plaintiffs as well as plaintiffs' expert witnesses at the last minute. Further, defendants contend that these depositions revealed the names of new witnesses with knowledge of plaintiffs' claims but defendants had no opportunity to depose them.
The court is not persuaded that these circumstances justified a continuance. Defendants had already been granted one continuance from November 4, 1985 to a special setting on December 2, 1985. In that order the Magistrate pointed out that defendants had had notice of the claims of the seven new plaintiffs at least since September 1 (DE 80). While it is true that 654*654 discovery continued after the evidentiary hearings had begun, such a schedule does not appear to have dampened the energy and enthusiasm of competent counsel for both sides. Defendants were able to depose the seven new plaintiffs on November 13-15. Defendants do not explain, however, why this accelerated discovery schedule precluded them from deposing the newly-revealed witnesses before or after the commencement of trial on December 2, particularly considering that these new witnesses appear to be prisoners in defendants' custody. Defendants' assertion that they were unprepared to try this case, moreover, is belied by their effective cross-examination of plaintiffs' witnesses. Most important, defendants have demonstrated no actual prejudice. Accordingly, defendants' objection to the Magistrate's failure to continue the trial is overruled.
V.
FAILURE OF MAGISTRATE TO ENTER RECUSAL

During the testimony of Dr. Swanson, defendants first became aware that the Magistrate had visited GCI in the early stages of this litigation. Judge Nimkoff told counsel that in 1982 he had conducted an informal hearing of LaMarca's claim, as was often his custom in prisoner cases. Also present at that unrecorded proceeding were Joe Belitsky of the Attorney General's Office, representing the State, and GCI Assistant Superintendent Arline. LaMarca related to the court his concern for other inmates who had been abused. Belitsky and Arline assured the Magistrate that a full investigation would take place. No such inquiry ever occurred, and Turner testified that he was unaware that these assurances were made to the court (DE 128, at 30-31). At trial defendants requested Judge Nimkoff to recuse himself, but the Magistrate denied that he would become a witness in the suit and accordingly refused the request.
A judicial officer is required to disqualify himself in a proceeding in which he has personal knowledge of disputed evidentiary facts concerning the proceeding. ABA Code of Judicial Conduct Canon 3(C)(1)(a) and (d)(iv); 28 U.S.C. § 455 (1982). Defendants argue that the Magistrate relied upon these events as evidence establishing either Turner's knowledge of alleged conditions at GCI or his failure to act on those conditions after he he was put on notice.
As defendants point out, the 1982 proceedings conducted at GCI were nonrecord, and no witness testified concerning the Magistrate's recollection of the events. Notwithstanding, knowledge acquired by a judge while he performs judicial duties does not constitute grounds for disqualification. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). Where it is alleged that a judge has personal knowledge of disputed evidentiary facts concerning a proceeding such that he should recuse himself pursuant to 28 U.S.C. § 455, the information or knowledge must stem from an extrajudicial source to warrant disqualification. United States v. Coven, 662 F.2d 162, 168 (2d Cir.1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72 L.Ed.2d 176 (1982). Judge Nimkoff's 1982 visit to GCI was undisputedly conducted as part of the instant proceeding and occurred in the presence of counsel for the State. See United States v. State of Washington, 459 F.Supp. 1020, 1093-97 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981). Defendants, moreover, conceivably could have called Belitsky or Arline to testify to their memory of the proceeding.
Defendants finally argue that the Magistrate was inclined to rely on the 1982 hearing as evidence tending to establish notice to Turner or Turner's failure to act. The transcripts disclose that the Magistrate asked questions of several witnesses regarding that hearing. In his report and recommendation, however, the Magistrate states that those events serve "merely to underscore Plaintiffs' position that GCI, under the Turner administration, was an institution not under the control of that Defendant" (DE 128, at 31). Thus, the Magistrate did not accord those events with dispositive weight. Cf. State of Washington, 459 F.Supp. at 1095. In any 655*655 event, disregarding the account of the 1982 hearing, the record contains more than enough evidence to support the Magistrate's findings and conclusions regarding Turner's control of GCI. The objection is overruled.
VI.

OBJECTIONS TO FINDINGS OF FACT
The court next will address in turn each of defendants' objections to the Magistrate's findings of fact and will analyze their significance to the overall disposition of the case. The numbers preceding each paragraph correspond to the paragraph numbering in the report and recommendation.
¶ 31. As plaintiffs concede, defendants' objection should be sustained. Turner was superintendent of GCI from mid-1976 to his retirement on July 31, 1984.
¶ 32. The racial breakdown of the GCI inmate population in 1985 is somewhat relevant to the issue of injunctive relief. The Magistrate's finding that approximately sixty percent of the population was Black and the remainder White or Hispanic is generally supported by the evidence which concededly was not the most competent proof. Although the documentary evidence contains no support for the conclusion that the figure for Whites included Hispanics, there was testimony to that effect. Objection overruled.
¶ 33. Although defendants are correct that Music estimated the Hispanic population at seven percent (Music, DE 160, at 133), the evidence supports the inference that that percentage may have been higher at times. Defendants also contest the definition of "close custody" prisoners; however, the Magistrate did not define the term. Objection sustained in part and overruled in part; the Magistrate's finding is modified accordingly.
¶ 36. Defendants protest the Magistrate's overall characterization of factors present at GCI such as "wholesale manufacture of prison wine," "regular screenings of sexually explicit videotapes," and "maintenance of an ill-assorted guard corps whose members the inmates perceived as regularly trafficking in contraband, extortion and neglect." Defendants admit that instances of these factors appear in the record but far less frequently than the Magistrate implied. The record supports findings that prison wine was prevalent at GCI, that sexually-explicit films were shown, and that many of the guards were perceived as corrupt or at least neglectful. Although the Magistrate's language is somewhat hyperbolic, the objection is overruled.
¶ 38-39. Defendants argue that the Magistrate implied that Turner was aware of all of the conditions at GCI relating to plaintiffs' claims and that two letters Turner wrote to Louie L. Wainwright, secretary of the Florida Department of Corrections (DOC), constitute admissions of GCI's unsafeness. It is apparent from the letters in evidence, however, that Turner's comments must be viewed in the context of his reporting a staffing shortage to his superior. Objection overruled.
Defendants make much of the relevance to this litigation of the accreditation of prisons and GCI in particular by the American Correctional Association. The Magistrate found that the GCI accreditation had "virtually no significance" to this lawsuit because accredited prisons have been found unconstitutional by courts. Having considered the GCI accreditation along with the remainder of the evidence, the undersigned district court finds it of marginal relevance in this case. Objection overruled.

¶ 40. On January 30, 1980, the Palm Beach County Grand Jury issued a presentment regarding conditions at GCI (pltf.ex. 4). Although the investigation was apparently provoked by shortages in meat supply, other security issues were addressed. Defendants' objection to the report's admissibility in evidence on the ground of hearsay is overruled pursuant to Fed.R.Evid. 803(8)(C) and is also overruled on the basis of relevance because the report is germane at least to the question of notice to Turner.
656*656 Defendants again complain about the Magistrate's use of the phrase "a free flow of contraband." The grand jury heard testimony of lax security at GCI as well as "many allegations and accusations of drugs, alcohol, and other contraband, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI." The report stated that alcohol use and its manufacture was apparently "prevalent." Pltf.ex. 4, at 6. That such contraband was freely flowing at GCI is a reasonable construction of the grand jury's findings, and the objection is overruled.
¶ 42. On August 26-29, 1980, the DOC Office of the Inspector General issued a report on its management review of GCI (pltf.ex. 4). Among other things, the report noted a serious lack of supervision on the compound due to staffing shortages. The Magistrate simply cited this portion of the report and did not seem to hold Turner personally responsible for staff shortages. Accordingly, the objection is overruled.
¶ 44. Defendants dispute the Magistrate's finding of low morale among GCI staff. The district court believes the record contains sufficient evidence to support this finding. This evidence includes an employee questionnaire which reflected that staff members felt that on-job training and the number of available staff were inadequate as well as the various witnesses' perception of staff apathy. Objection overruled.
¶ 45. The Office of the Inspection General issued a second GCI management report approximately three years later, on September 19-21, 1983 (pltf.ex. 6). The management report supports the Magistrate's finding of some laxity in security, which included improper control and supervision of inmate movement from one location to another and inadequate staffing of the perimeter posts (id. at 8-9). Objection overruled.
¶¶ 46-50. The Magistrate found that the use of excessive force by Lieutenant William Barrett when he was acting chief correctional officer at GCI was relevant to Turner's management of GCI. In brief, Barrett was summoned from a local festival in Belle Glade to the prison after a fight broke out in a dormitory. Barrett was accompanied by Sergeant Rickey Hayes and Lieutenant L.A. Peters, GCI's internal inspector. All three had been drinking. Barrett and Hayes had their faces made up like clowns. Although the incident had been largely quelled, Barrett took a loaded shotgun into the compound and used it to beat several inmates in the back of the head.
As plaintiffs emphasize, the Barrett incident is relevant not as a showing of improper use of force but as an illustration of Turner's reaction to the situation. The incident report of the Office of the Inspector General states that on the night of the incident Turner advised Barrett to go home and rest and that Turner did not feel the situation warranted notification of a prison inspector (pltf.ex. 9, at 5). Defendants are correct to add that Turner eventually notified the inspector general, who sent a team to GCI within three days of the incident

(Swanson, DE 117, at 213-14). Swanson criticized Turner for not immediately suspending Barrett and taking away his gun and badge rather than merely telling him to go home and rest. Significantly, defendants do not object to the Magistrate's finding at ¶ 49 that Barrett remained functioning as a correctional officer for at least a full week after the incident. It is clear that the Magistrate did not attribute undue weight to the Barrett incident. Objection overruled.
The Magistrate also related Swanson's testimony concerning the transcript of Turner's interview with one of Barrett's victims (pltf.ex. 9, subex. 13). The Magistrate quoted Swanson's testimony that the inmate's reporting of wine-drinking among the prisoners did not appear to surprise Turner. Contrary to defendants' assertion, the district court does not believe that the Magistrate found that Turner "failed to register appropriate outrage" at this revelation. The Magistrate simply quoted Swanson's opinion in a footnote and did not comment on it in any way. Objection overruled.
657*657 ¶¶ 51-52. Defendants also challenge as irrelevant the Magistrate's findings regarding the investigation[3] and eventual dismissal and arrest of GCI correctional officer Clarence Dixon. As defendants note, Turner did testify that, although the investigation was hindered by several obstacles, he ordered it to continue. Turner's persistence, however, does not negate the Magistrate's finding that if Dixon's employment application had been properly screened he probably would not have been hired at all. Objection overruled.
¶ 53. Defendants again protest the Magistrate's use of the phrase "wholesale staff corruption." The Barrett and Dixon reports and the testimony of alleged inmate-enforcer Larry Pryor obviously do not in themselves impugn the integrity of the entire GCI security staff. Barrett, however, was one of GCI's top-ranked security officers. Further, the testimony of the inmate-witnesses discloses the perception of extensive staff corruption. Objection overruled.
¶ 56. The Magistrate agreed with Swanson's conclusion that the GCI staff or administration took little or no effort to control the extensive contraband at the prison. Defendants complain that the Magistrate ignored their evidence of substantial measures to control the flow of contraband during Turner's regime. Both sides have done a heroic job of providing citations to the evidence supporting their respective positions. The district court has considered all the evidence as well as the possible biases of the witnesses. The record as a whole supports the Magistrate's conclusion that little or no effort was taken to control illicit activity at GCI, resulting in readily-available contraband. Objection overruled.
¶¶ 57-58. The Magistrate found that evidence of several incidents involving use of firearms tended to show inadequate staff training. Defendants claim that the Magistrate exaggerated the significance of these occurrences and that the GCI staff was in fact well-trained. The district court finds that the firearms incidents bear somewhat on the issue of staff training. Objection overruled.
¶ 59. Defendants' objection to the finding of low morale among staff is overruled for the reasons stated in supra ¶ 44.

The district court agrees with defendants' assertion that Turner is not solely to blame for high staff turnover and vacancies. As plaintiffs and defendants note, the staff turnover and vacancy rates declined in 1982 and continued to decline through 1984. The relevancy of these observations, however, is not critical to the resolution of this case, because six of the ten individual plaintiffs were raped or assaulted after the turnover and vacancy rates had declined in 1983 and 1984. The Magistrate's findings are modified in accordance with the district court's observations in this paragraph.
¶ 61. Defendants take issue with the finding that the individual plaintiffs' claims are directly related to the lack of staff supervision due to Turner's failure to station the officers properly. The objection is overruled for the reasons stated in infra ¶¶ 62 and 63.
¶ 62. During the Turner administration, GCI inmates were in the habit of hanging sheets, towels, clothes, and personal lockers from the bunk beds. These obstructions obscured activity in the bunks from the view of the officer stationed in the cage or "wicket" at the front of each dorm. The showers at the back of the dormitories were obscured from the officers' view by these obstructions and also by double-bunking the middle row of beds. Defendants point to testimony that an officer stationed in the wicket could not see into parts of the shower even if these obstacles were removed. This does not change the fact that visibility was greatly improved with the removal of these obstructions in one of the dormitories under one of Turner's successors, Superintendant Randall Music. Objection overruled.
658*658 ¶ 63. Although the officers were supposed to be on constant patrol of the dorms, the Magistrate found that this did not occur. The Magistrate's finding that routine patrol did not in fact take place is supported by the weight of the evidence, particularly the testimony that gang rapes in the showers or beds endured for fifteen to forty minutes. Objection overruled.
The Magistrate also found that Turner could recall no action taken against an officer for failure to patrol the dormitories. Turner actually testified that such action may have been taken but that he could not recall a specific instance.[4] Objection overruled.
¶ 64. Defendants take issue with the Magistrate's finding that GCI's chief investigator, Lieutenant Peters, testified that GCI had no standard operating procedure for investigating rapes (Peters, DE 162, at 444). Peters later testified to a procedure he had used to investigate a rape (id. at 464-65). From this testimony defendants allege that the Magistrate misrepresented the evidence. The court disagrees. Peters stated that no formal procedure in fact existed and later recounted his own methodology. Peters testified, as defendants note, that no procedure existed for line officers to report rapes directly to him, the prison investigator, but that line officers were supposed to pass on the information to their superiors. The individual plaintiffs' stories, which the Magistrate found credible, demonstrate that the passing of rape reports to superior officers did not produce competent or thorough investigations of those reports. Objection overruled.
¶ 65. DOC Inspector General Brierton testified that, in a prison rape investigation, at a minimum, (1) medical evidence should be secured, (2) a full victim statement should be taken, and (3) the matter should be referred to a local prosecutor. These steps were not followed at GCI with respect to the individual plaintiffs. Defendants question whether the

individual plaintiffs were actually raped and, if they were, whether the rapes were reported. Again, the Magistrate found credible plaintiffs' accounts of their rapes and the ensuing events. The district court sees no reason to doubt this finding, and the objection is overruled.
¶ 66. Both Turner and Peters specifically testified to only one prosecution for a rape at GCI. Peters remembered that it occurred in 1984. Although it is true that internal GCI statistical reports note five sexual assaults from 1980-84 (pltf.ex. 31), no incident reports regarding these attacks were introduced. The Magistrate's finding is so modified.
¶ 71. The Magistrate found that various factors, considered in combination, should have made it apparent to a prudent administrator that rapes were occurring, and that, considering this knowledge, the failure to promulgate and adhere to the most rudimentary investigative and preventative procedures constitutes a deliberate indifference toward inmate security. The objection is overruled for the reasons stated in infra ¶¶ 72 and 73 and elsewhere in this memorandum and order.
¶ 72. The Magistrate found that the background of contraband, violence, and other illegal activity at GCI was compatible with the existence of violent sexual assaults. Defendants' objection that contraband was not free-flowing is overruled for reasons stated previously. Defendants' further objection that there is no connection between contraband and rape is belied by the plaintiffs' testimony evidencing the presence of weapons, drugs, and alcohol when they were raped. Objection overruled.
659*659 ¶ 73. The Magistrate found that the disproportionate numbers of White inmates who received protective confinement should have put Turner on notice that these inmates felt in danger in the population. As defendants note, inmates may request protective confinement for reasons unrelated to fears for their safety. The district court makes two observations. First, if protective confinement houses twenty Whites to one Black in a population where Blacks outnumber Whites (pltf.ex. 6), a prudent administrator should at least have inquired why this was the case. Second, the evidence as a whole supports the inference that Whites who requested protective confinement did so out of fear of sexual or other assault. Again, a prudent administrator would have investigated. Objection overruled.
¶ 75. Defendants criticize the Magistrate's finding that conditions in protective confinement were "punitive" because certain physical problems such as lighting, ventilation, and overcrowding were out of Turner's fiscal control. Those conditions, however, comprised only part of the reason that protective confinement was punitive. For example, the cells were infested with waste and vermin, inmates were harassed by inmates in nearby disciplinary confinement and the compound, no exercise was afforded, only three brief showers a week were allowed, and canteen and often library privileges were lost. Objection overruled.
¶ 76. The fact that some inmates elected to remain in protective confinement for months was found to be evidence that those inmates experienced high anxiety in the compound. Overcrowded conditions in confinement supports an inference of a high inmate demand for protection. Defendants state only that other reasons could have contributed to the overcrowding, such as increase in inmate population, the nationwide rise in number of

inmates in protective confinement, and inclusion of disciplinary and administrative confinement detainees. The Magistrate's finding is modified accordingly.
¶ 77. An experience repeated over and over in the testimony is the "wolfing"[5] and catcalling by Black inmates to White inmates upon the arrival of the latter group at GCI. Contrary to defendants' assertion, the Magistrate found only that Swanson testified that the corroboration of this experience by inmates unknown to each other and presently incarcerated in different institutions enhances the probability of its occurrence. Objection overruled.
¶ 78. The Magistrate found other indicia of sexual activity at GCI such as sheets hung from bunk beds, inmates moaning in their beds, and the showing of pornographic movies in a trailer where cries and moans were heard. Defendants object that reasons other than sexual activity existed for these occurrences and that there was no evidence that Turner knew of these phenomena. Such reasoning does not comport with the totality of the evidence including the inmate testimony that cries, moans, and screams were frequently heard emanating from the showers and from bunks concealed by sheets.
Further, defendants' protest that "a superintendent with all of his other responsibilities cannot screen each movie shown in prison" is almost disingenuous. Uncontradicted evidence shows that sexually-explicit videotapes—with graphic depictions of intercourse— were regularly shown in a trailer on the compound, that these movies were unsupervised, and that sounds consistent with human sexual activity could be heard from the trailer. Several witnesses provided more lurid accounts of the scene inside the trailer itself. Plaintiffs' expert witnesses rendered their opinion that such films are inappropriate for a prison audience. Defense witness Brierton acknowledged that a different school of thought exists which holds that adult movies may be appropriate for adult prison audiences. Brierton, however, was adamant that 660*660 group events such as movies should always be supervised.
Defendants also point to the lack of evidence that Turner saw the hanging sheets, heard the cries, moans, and screams suggestive of sexual activity, or saw or selected the videotapes. A prudent administrator, however, should have been aware of these occurrences,[6] which the evidence shows to have been a prevalent and unmistakeable part of life at GCI. Objection overruled.
¶ 79. The Magistrate found that some rapes were reported and that this should have signalled a problem to a prudent administrator. There is no reason to question the finding that rapes were reported to GCI officers. That these reports never made their way to Turner or to the prison investigator, considering the totality of the evidence, shows not Turner's exculpatory ignorance but rather his liability. Objection overruled.
¶ 81. Objection overruled for the reasons stated in supra ¶ 64.
¶ 82. The record contains no evidence that the rapes, which the Magistrate found to have occurred, were even minimally investigated. Defendants' objection is overruled for the reasons set forth in supra ¶¶ 64 and 79.

¶ 83. The objection regarding rape prosecutions is overruled for the reasons stated in supra ¶ 66. The objection regarding weapons prosecutions is sustained as follows: the last sentence of the Magistrate's finding is deleted and replaced with the following: "There was no evidence that during Turner's administration a State prosecution was initiated for any weapons possessed by any inmate at GCI (Peters)."
¶ 84. The Magistrate found that during Turner's administration inmates bent on violence "roamed the compound with impunity." This finding is supported by the evidence that during Turner's reign inmates were free to wander the compound and dormitories other than the one to which they were assigned. The procedure whereby inmates need passes to move about the compound was instituted by a successor superintendent, Randall Music (Music, DE 160, at 146). Objection overruled.
The Magistrate further found that Turner refused to seek assistance from federal and state prosecutors and investigators to cope with the crimes committed on the compound. The record, however, contains some evidence of outside prosecutions initiated by Turner. The evidence does fairly show that outside state and federal criminal justice remedies were grossly underutilized during Turner's administration considering the crime-ridden atmosphere at GCI. The Magistrate's finding is modified accordingly.
¶ 86. The Magistrate found that the rapes of plaintiffs Aldred, Saunders, and Harper were reported to prison authorities, and the record contains no articulable reason for the district court to disregard this credibility determination. This finding supports an inference that the rapes were never investigated at least partially due to the lack of an established procedure for reporting rapes to the prison investigator. Objection overruled.
¶ 87. The Magistrate found that Turner also failed to avail himself of or underutilized other possible investigative arms of the government such as the State Attorney General's Office, State Attorney's Office, and the Federal Bureau of Investigation. Whether or not these agencies could have assisted in improving the conditions at GCI, the record does not show that Turner requested assistance from other agencies, on a consistent or persistent basis, in order to alleviate GCI's problems. Defendants also note that there was no evidence that GCI's internal inspectors were unwilling or unable to investigate matters brought to their attention. These assertions ring hollow considering that, because of inadequate reporting procedures, many grave matters were never brought to their attention. Objection overruled.
661*661 ¶ 89. The district court does not doubt the evidence cited by defendants that sometimes inmates were disciplined for being in an area in which they were not authorized to be. This proof, however, does little to mitigate the testimony which shows that inmate movement about the prison was inadequately controlled. See, e.g., supra ¶ 84. Objection overruled.
¶ 92. The objections are overruled for reasons previously addressed.
¶ 93. The Magistrate found that, even though parts of the dormitories were concealed from the view of an officer stationed in the wicket, "Turner never initiated any administrative policy that officers patrol the dormitory on a regular basis" (DE 128, at 45). As defendants note, Turner did testify that posted orders required officers to patrol (Turner, DE 164, at

643). The weight of the evidence, notwithstanding, shows that the guards did not regularly patrol. The Magistrate's finding is so modified.
¶ 94. Succeeding superintendent Music was able to increase visibility by single-bunking the middle row of beds in one of the dormitories. Defendants argue that this modification was not cost-free, because $7,000 was expended for new lockers (Music, DE 160, at 141-42). The district court is unable to determine from the record whether new lockers were an essential element of the single-bunking or simply an added security measure for inmate property. Even if the $7,000 was a necessary expenditure, there is no significant evidence that Turner possessed or tried to obtain funds for that purpose. Objection overruled.
¶ 96-97. The Magistrate compared Turner's practice in managing the transfer out of GCI of problem inmates with that of successors Jones and Music. "Problem inmates" includes both aggressive inmate "wolves" and especially vulnerable inmates. There was evidence that Turner often achieved the difficult goal of transferring problem inmates out of GCI. Successor superintendent Jones transferred out forty to forty-five inmates in less than three months. Music transferred five a month over a six-month period. Defendants point to instances where Turner moved seven inmates on one occasion and twelve on another, although his monthly average of such transfers is not in evidence. There is other compelling proof, however, that Turner was not zealous enough in transferring problem inmates: for example, Peters' admission, found credible by the Magistrate, that Turner did not view "wolves" as problem inmates; the chronicles concerning "wolves" Larry Pryor, Willie Dock, and Levi Fisher (DE 128, at 42-44); and the length of time the vulnerable plaintiffs were effectively forced to endure protective confinement before transfers took place. In the district court's view, the record shows that Turner could have exercised much more diligence in attempting to transfer problem inmates from GCI and that this failure constitutes evidence of deliberate or callous indifference to inmate safety. Objections overruled.
¶¶ 98-100. Defendants challenge the Magistrate's findings regarding inmatewolves Pryor, Dock, and Fisher with minor discrepancies in the evidence. The Magistrate's findings are ultimately grounded in credibility determinations which the district court sees no reason to disturb. Objection overruled.
¶ 101. The objections are overruled for the reasons set forth at length in supra ¶ 78.
¶ 103. The Magistrate's analysis of the relationship between financial feasibility and the constitutional obligations of a prison superintendent comports with the prevailing law in the Eleventh Circuit (see infra at 38-39). Objection overruled.
¶ 105. The Magistrate detailed specific measures which were inexpensive or cost-free, which were ignored or rejected by Turner, which were within his control, and which would have minimized or eliminated the likelihood of rapes and other assaults at GCI.
(i) Defendants claim that there was no evidence that Turner failed to discipline staff for failure to patrol the dorms, that staff in fact failed to patrol, or that Turner 662*662 was made aware of any such failure. To the contrary, the district court can discern no significant evidence that the staff did patrol the dorms or that Turner disciplined staff for not patrolling.

Further, there is no evidence explaining why Turner was not aware of this failure. Objection overruled.
(ii) The record reflects extensive contraband at GCI which was often provided or at least tolerated by Turner's staff, prevalent extortion activities by inmates which were not redressed by officers who were made aware of it, several instances of extortion activities by staff, and the tolerance of obvious consensual and nonconsensual sexual activity by inmates. Each of these matters is addressed elsewhere in this memorandum and order and in the report and recommendation. Turner's overall laxity in managing and controlling his staff can be inferred from the prevalence and apparent obviousness of these conditions and from the absence of substantial evidence of disciplinary action directed to staff. Objection overruled.
(iii) The weight of the evidence supports the finding that during the Turner administration it was common practice for inmates to hang sheets and other objects from their bunks, thereby obstructing visibility in the dormitories. The inference is inescapable that a prudent administrator would have been aware of this problem. Objection overruled.
(iv) The district court has previously addressed the lack of adequate procedures for the reporting and investigation of rapes (supra ¶¶ 64-66). Objection overruled.
(v) Defendants' arguments have been rejected elsewhere (supra ¶¶ 37, 66), and the objections are overruled.
(vi) These assertions also have been rejected previously (supra ¶ 84). The objection is overruled.
(vii) The court has already addressed Turner's lack of zeal at transferring problem inmates (supra ¶¶ 96-100). Objection overruled.
¶ 108. Swanson utilized various methodologies to evaluate plaintiffs' accounts of their rapes. Defendants' objection appears to be a semantical one and is overruled.
¶ 109. The Magistrate found the expert opinion testimony of Dr. Caddy to be credible, and the district court does not question this finding. Objection overruled.
¶ 111. The Magistrate's credibility finding will not be overturned. Objection overruled.
¶ 118. The Magistrate's essential finding that the atmosphere of undeterred violence at GCI was conducive to acts of rape is supported by the weight of the evidence. Objection overruled.
¶ 121. The record does not support defendants' assertion that rectal examinations were actually used at GCI upon the reporting of a rape. Objection overruled.
¶¶ 122-195. The gravamen of defendants' objections turn on credibility determinations which the district court finds no reason to disturb. The objections are overruled.

¶¶ 196-199. The district court finds persuasive and supported by the evidence the Magistrate's observations on the overall integrity of plaintiffs' case. Objection overruled.
VII.
OBJECTIONS TO CONCLUSIONS OF LAW
Defendants' objections to the Magistrate's conclusions of law reflect a general agreement with the prevailing legal standards but dispute the application of the facts to those standards. In particular, defendants argue with the Magistrate's conclusion that plaintiffs have put forth sufficient proof of violation of their civil rights.
As the Magistrate concluded, the following legal standards apply. A prisoner has a right to be protected from the constant threat of violence and from sexual assault. When prison officials have failed to control or segregate prisoners who endanger the physical safety of other prisoners, resulting in a high level of violence, it constitutes cruel and unusual punishment. 663*663 Jones v. Diamond, 636 F.2d 1364, 1373-74 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); see also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (eighth amendment ban on cruel and unusual punishment made applicable to states by fourteenth amendment due process clause).
To hold a prison official liable in a civil rights action under 42 U.S.C. § 1983 (1982) based on cruel and unusual punishment, plaintiffs must show that the official's conduct constitutes an intentional or callous indifference to the prisoner's right to reasonable protection from violence. Wiliams v. Bennett, 689 F.2d 1370, 1380-81 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). Plaintiffs must prove deliberate indifference on the part of the defendant official rather than simple negligence. Section 1983 further requires "proof of an affirmative causal connection between the actions taken by a particular person `under color of state law' and the constitutional deprivation." Id. at 1380. Where the defendants hold supervisory positions, vicarious liability will not suffice. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (municipality not vicariously liable for acts of employees absent proof that execution of official policy inflicts injury). Supervisory defendants may be held liable if they have direct responsibility for the actions of the employees who engage in misconduct. Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976). The Eleventh Circuit has stated that "the inquiry into causation must be a directed one, focusing on the duties and responsibilities of each of the individual defendants whose acts or omissions are alleged to have resulted in a constitutional deprivation." Williams, 689 F.2d at 1381.
The district court first examines whether Turner's conduct rose to a level of intentional or callous indifference to the plaintiffs' right to "reasonable protection from violence." Id. at 1380. The former Fifth Circuit elaborated on the elements of this requirement of intent in Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir.1981). A section 1983 plaintiff seeking to sue prison officials must prove either that "the official knew or should have known that his action infringed a clearly established constitutional right of the plaintiff," Douthit v. Jones, 619 F.2d 527, 534 (5th Cir.1980), regardless of the officials' subjective intent, Bogard v. Cook, 586

F.2d 399, 411 (5th Cir.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979), or that the "official either actually intended to do harm to the plaintiff, or took an action which, although not intended to do harm, was so likely to produce injury that the harm can be characterized as substantially certain to result," id. at 412.
The Magistrate found that Turner knew or should have known that his acts or omissions infringed plaintiffs' constitutional right to reasonable safety. Evidence that Turner knew of serious security problems included official documents such as Turner's letters to Wainwright, the 1980 grand jury presentment, the management reports of the DOC inspector general, the Barrett and Dixon incidents of staff corruption, and knowledge from various sources of the prevalence of contraband. The Magistrate further found that a prudent administrator should have known of widespread extortion activities by inmates often in collusion with officers and widespread rape and physical assaults by inmates on inmates (see supra ¶¶ 77-78). The extensive findings of fact cited by the Magistrate provide adequate support for his conclusion that Turner's conduct constituted callous indifference to plaintiffs' right to reasonable protection from violence. Thus, plaintiffs have satisfied the objective test of Bogard, that Turner knew or should have known that his actions violated a clearly defined constitutional right, as well as Bogard's subjective test, that Turner took an action which was so likely to produce injury that the harm can be characterized as substantially certain to result.
A defendant cannot have the requisite intent for callous indifference if 664*664 full compliance with constitutional norms is beyond his control and if he can show that he accomplished what could be accomplished within the limits of his authority. Williams, 689 F.2d at 1388. Over defendants' persistent protest that Turner's means were limited, the Magistrate identified administrative measures within Turner's control which imposed little or no financial limitation. These include measures Turner could have taken to identify and remedy his staff's failings at weapons training, the reporting of rapes, assaults, and other illegal activities through the chain of command, patrolling of the dormitories, and ensuring maximum visibility in the dormitories. Turner also could have implemented a standard operating procedure for investigation of rapes and assaults, availed himself of outside agencies in that regard, established inmate movement controls, and intensified his efforts to transfer particularly aggressive or vulnerable inmates from GCI. The fact that succeeding superintendents Jones and Music were able to achieve or at least take preliminary steps toward these goals attests to their feasibility. Thus, the district court is convinced that the means to satisfy constitutional minimums were within Turner's control. Accordingly, the court overrules the objection to the Magistrate's conclusion that plaintiffs failed to prove callous indifference.[7]
Defendants more strenuously object to the Magistrate's conclusion that Turner's actions constituted a legal cause of plaintiffs' constitutional deprivation. The critical causation inquiry is whether Turner "was in a position to take steps that could have averted" the attacks on plaintiffs "but, through callous indifference, failed to do so. Resolution of this issue necessarily entails a very individualized approach, taking into account the duties, discretion, and means" of the defendant. Id. at 1384. Defendants essentially maintain that the Magistrate painted with such broad strokes that he failed to analyze whether the conditions at GCI which were under Turner's control proximately caused the injuries to the particular plaintiffs at the particular times of each occurrence.

The district court is not persuaded. The following conditions which were under Turner's control provide direct causal links to plaintiffs' injuries. First, every plaintiff was attacked or threatened with a weapon, typically a knife. The evidence establishes the prevalence of such weapons and Turner's failure to take reasonable measures designed to control such contraband. Second, the long duration of several of the attacks, the places in which they occurred, and possibly the fact that they occurred in the first place, are functions of Turner's failure to take even minimal steps to ensure that GCI was adequately patrolled (Aldred raped in shower for fifteen to twenty minutes; Durrance led away at knifepoint from place between bunks which was concealed by hanging blanket; Bronson raped with baseball bat on recreation field in broad daylight; Saunders raped in bathroom for twenty-five to thirty minutes; Harper raped in top bunk; Cobb stabbed in front of canteen in fight lasting ten to twelve minutes). Third, Turner's failure to implement adequate reporting procedures for rapes and assaults was a legal cause of plaintiffs' psychological and possibly physical damage (Aldred reported rape to several officers with no results; Aldred not given protective confinement; Durrance and Bronson did not report out of fear of consequences; Saunders raped by two inmates who previously had attacked him; Saunders reported rape and received inadequate treatment and no investigation; inmates identified as assailants by LaMarca were not confined for investigation and continued to assault him; classification officer told Johnson to take protective confinement or to get a weapon and fight 665*665 back). Fourth, Turner's callous indifference to the obvious and rampant indicia of homosexual activity was the proximate cause of rapes, attacks, or repeated harassment (Aldred, Durrance, Bronson, Saunders, and Harper raped; Bronson forced to commit nonconsensual sexual act in movie trailer; Johnson sexually harassed and later attacked four times; constant threats and sexual solicitation caused LaMarca to escape, take protective confinement, and receive disciplinary reports; Cobb injured in fight over homosexual). Fifth, Turner's failure adequately to supervise correctional officers up to the lieutenant level resulted in corruption and incompetence among the officers and a lack of reasonable protection of inmates (Cobb's assailant worked as an "enforcer" with GCI staff and was protected by them; LaMarca complained to Barrett about threats and assaults and was given a knife by Barrett; Bronson afraid to report rape because he had witnessed inmates exchanging money and drugs with guards). The Magistrate's findings, supported by the record, contain more examples of how Turner's callous indifference proximately caused the injuries to Aldred, Durrance, Bronson, Saunders, Harper, Johnson, Cobb, and LaMarca.
The district court is not satisfied, however, that the requisite causal connection has been established with respect to the claims of Epprecht and Gordon. When Epprecht was assaulted with a pipe in the dormitory, he could see no guard in the wicket. Because there is no other evidence regarding the attack, such as its length, the district court is unable to determine whether the lapse in supervision was merely accidental or whether it flowed from Turner's actions. The fact that the attack was provoked because Epprecht possessed cash money also does not establish causation because a cash money system in prison does not in itself prove callous indifference. Similarly, with respect to Gordon, the evidence shows only that he was assaulted three times at GCI. He was knocked unconscious once in front of the canteen, his buttocks were burned when inmates who had been drinking prison-made wine set his polyester underwear on fire, and he was hit in the head with a pipe in a robbery. The eighth amendment entitles a prisoner only to reasonable protection from violence. Williams, 689 F.2d at 1380. The district court fears that, were it to find Turner liable for the damage sustained by Epprecht and Gordon, Turner might become an insurer

for every attack on an inmate which occurred during his tenure. The recommended $17,000 award of compensatory damages to Epprecht and the $6,000 to Gordon must therefore be rejected.
In summary, the facts and the law support the Magistrate's conclusions that certain of defendant Turner's actions and inactions in running GCI constituted callous indifference to plaintiffs' eighth amendment right to reasonable protection from violence. The evidence further establishes that, with respect to all of the plaintiffs except Epprecht and Gordon, Turner was in a position to take steps that could have averted the attacks on these plaintiffs but, through his callous indifference, failed to do so. The record finally establishes that these constitutional deprivations were a legal cause of plaintiffs' damages. Under the prevailing law in this circuit, see id. at 1381, plaintiffs Aldred, Durrance, Bronson, Saunders, Harper, Johnson, Cobb, and LaMarca should prevail against defendant Turner under 42 U.S.C. § 1983.
VIII.
OBJECTIONS TO INJUNCTIVE RELIEF
The Magistrate found that, although defendants had instituted improvements of unconstitutional conditions at GCI, there was a reasonable expectation that the violations would recur. Accordingly, the Magistrate held that defendants' efforts at correcting deficiencies at GCI did not deprive the court of the power to order injunctive relief. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). He recommended the creation of two committees, one of penologists and the other of psychologists or psychiatrists, to advise the court 666*666 in the formulation of specific injunctive relief. The charter of the committee of penologists is to ferret out other rape victims at GCI who were not identified through this litigation so that they might be provided with therapeutic assistance and to review and develop procedures at GCI to minimize future assaults, extortions, and rapes. The charter of the committee of psychologists or psychiatrists is to prescribe a treatment plan for the plaintiffs and witnesses in this action who remain incarcerated and to develop procedures at GCI to provide rape victims with support similar to that received by unincarcerated rape victims from rape crisis centers.
Defendants argue that the establishment of the committees was premature because the Magistrate adjourned the class action aspect of the case before defendants had an opportunity to present evidence countering plaintiffs' claims regarding current conditions at GCI. Although it is true that the parties presented incomplete proof on the issue of injunctive relief, the district court is not persuaded that at this juncture further evidentiary hearings are appropriate. In particular, the district court recognizes its lack of expertise in resolving the "complex and intractable" problems of prison administration. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). The committees recommended by the Magistrate would provide valuable expert testimony to the court on the persistence of unconstitutional conditions at GCI and recommended equitable remedies.
The injunctive relief recommended by the Magistrate is adopted with the following modifications. Two committees shall be established, one of penologists and the other of

psychologists and psychiatrists. Each committee will be comprised of three members. Each party will nominate one member of each committee. The third member of each committee will chair the committee and will be selected by the district court. The parties will submit names of persons they recommend for the position of chairman, including a curriculum vitae for each nominee, and the district court will consider these recommendations in appointing the third member of each committee. The charter of the committees will be that recommended by the Magistrate, with the additional task of reporting to the court on the status of current conditions at GCI and the necessity for further injunctive relief. The work of the committees will not end with this original report, as their expertise may be needed from time to time to assist in monitoring conditions at GCI. The cost of establishing and maintaining the committees shall be borne by the State of Florida.
The parties shall file their nominations of committee members with the district court by June 17, 1987. Thereafter, the district court will issue an order setting forth its selection of the chairman of each committee and establishing a date by which the committees shall file a written report with the court in accordance with the terms of this order. After the committees have filed their reports, the parties will have ten days in which to file a motion if they desire to present additional evidence regarding current conditions at GCI and the necessity of further injunctive relief. Such motions shall be accompanied by an offer of proof which shall include a list of witnesses and the substance of their proferred testimony. The parties will have five days to respond to each other's motions. After it has the reports of the committees and these submissions of the parties, the court will determine whether additional hearings are necessary to formulate specific injunctive relief.

IX.

CONCLUSION

In accordance with the terms of this memorandum and order, it is

ORDERED and ADJUDGED that the report and recommendation of the Magistrate filed January 8, 1986 (DE 128) is affirmed and adopted as the order of this court except as modified or rejected by this order. It is further

ORDERED and ADJUDGED that judgment shall be entered for plaintiffs LaMarca, 667*667 Saunders, Johnson, Aldred, Bronson, Cobb, Durrance, and Harper and against defendant Turner in accordance with the following award of compensatory damages for Turner's violation of plaintiffs' constitutional rights:

Anthony LaMarca Martin Saunders Edwin Johnson David Aldred Steve H. Bronson, Jr. Eddie Cobb Ron Durrance Billy Joe Harper

$9,000 $30,000 $13,000 $30,000 $30,000
$6,500 $30,000 $30,000

Interest on this judgment shall run from the date of judgment until paid, at the rate of 7.02 percent. It is further
ORDERED and ADJUDGED that on the claims of plaintiffs Epprecht and Gordon judgment shall be entered for defendants and against plaintiffs, the plaintiffs to take nothing. It is further
ORDERED and ADJUDGED that two committees shall be established to advise the court in the formulation of injunctive relief, in accordance with the court's specific directives set out at page 666 of this memorandum and order. It is further
ORDERED and ADJUDGED that defendants' motion filed February 10, 1986 for an enlargement of time to respond to plaintiffs' motion for attorneys' fees and expenses (DE 149) is granted as follows: Defendants shall have twenty days from the date of this order to file their response. It is further
ORDERED and ADJUDGED that the court will defer ruling on plaintiffs' motion filed January 31, 1986 for oral argument on their motion for fees and expenses (DE 141).
REPORT AND RECOMMENDATION
Jan. 8, 1986
PETER NIMKOFF, United States Magistrate.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
"The degree of civilization in a society can be judged by entering its prison" Dostoevsky[1]
A. PROCEDURAL BACKGROUND
1. GENERAL BACKGROUND
1. On May 14, 1982, over three and one-half years ago, Anthony LaMarca, then an inmate at the Glades Correctional Institution (hereinafter "GCI") in Belle Glade, Florida, filed a handwritten complaint pro se in this Court under 42 U.S.C. § 1983, suing Defendant R.V. Turner, Superintendent of that institution. The Complaint contained, inter alia, allegations that Plaintiff LAMARCA was was being subjected to ongoing physical violence and harassment by other inmates because of his refusal to participate in homosexual activity, and that officials at the institution failed to take any corrective action to alleviate that situation.
2. On June 14, 1982, this case was referred to me for further proceedings.[2]

3. On September 21, 1983, Plaintiff LaMarca, now represented by counsel and joined by three other former and/or present inmates at GCI, Martin Saunders, Edwin Johnson, and Henry Rosenbaum,[3] filed an Amended Complaint Class Action on behalf of themselves and other inmates at the Institution, seeking to redress physical and sexual assaults and threats of physical and sexual assaults. In the Amended 668*668 Complaint Plaintiffs sought declaratory and injunctive relief to enjoin Defendants from various practices and inaction which resulted in Plaintiffs', and the proposed plaintiff class, being subjected to violence, threats, and sexual abuse by other prisoners. The four named plaintiffs also sought damages on behalf of themselves. In addition, the Amended Complaint Class Action named Louie L. Wainwright, Secretary of the Florida Department of Corrections as a Defendant.[4] Plaintiffs did not request a trial by jury in their Amended Complaint or in any other related pleading.
4. On November 2, 1983, Defendants' filed their Answer to Plaintiffs' Amended Complaint. Like Plaintiffs, no demand for jury trial was made by Defendants.
5. On April 13, 1984, this Court (Paine, J.) ordered that this case proceed as a class action defined as those persons who are or will be incarcerated at the GCI for purpose of the injunctive relief sought by the named plaintiffs.
6. On August 26, 1985, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint simultaneous with the proposed amended pleading, which was granted by this Court on September 19, 1985, nunc pro tunc August 26, 1985. The Second Amended Complaint virtually mirrored the allegations in Plaintiffs' Amended Class Complaint filed two years earlier alleging that certain practices by Defendant prisoner officials resulted in Plaintiffs' being assaulted, battered, and/or homosexually raped. Seven additional plaintiffs[5], all present and former inmates at GCI, were added in the Second Amended Complaint, each of whom suffered the same injuries as the named plaintiffs and the class. These seven additional named plaintiffs sought compensatory damages from Defendant R.V. Turner resulting from his alleged unconstitutional action against them.
7. Randall Music, the present Superintendent at GCI, was added to the Second Amended Complaint as a Defendant, solely for the purpose of injunctive relief since he had replaced R.V. Turner as Superintendent. Music is sued only in his official capacity.
8. On October 8, 1985, Defendants filed a Motion for More Definitive Statement in response to Plaintiffs' Second Amended Complaint. On October 25, 1985, in response to the Defendants' Motion, Plaintiffs filed a twelve-page pleading providing Defendants with a factual overview response to the various requests for more information raised in Defendants' Motion.
9. On November 6, 1985, Defendants Turner and Music, pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, served their "demand for trial by jury on all issues so triable." In their demand for jury trial, Defendants stated "the action is not at issue." Apparently, this was Defendants' view in light of the fact that Defendants' Motion for More Definitive Statement was still pending and no answer had been filed yet to the Second Amended Complaint. Defendants further stated that while their "Demand" would ordinarily

be contained in their Answer, they wanted to advise parties and the Court at this time of their intent to request a jury trial.
10. On November 13, 1985, Defendants filed a Motion to Continue the trial scheduled for on December 2, 1985. On November 21, 1985, Plaintiffs filed a Memorandum opposing Defendants' Demands for Jury Trial and in Opposition to Defendants' Motion for Continuance.
11. Subsequently, on November 15, 1985,[6] Plaintiffs filed a Motion for Leave to 669*669 File a Third Amended Complaint along with the amended pleading. The Third Amended Complaint provides for the dismissal of all claims relating to Plaintiff Keith Harris; substitutes a new Plaintiff, Billy Joe Harper; cures several typographical errors in the prior pleading; and, according to Plaintiffs, adds the State of Florida as a Defendant solely for the purposes of an attorney fee award, citing Leggett v. Badger, 759 F.2d 1556 (11th Cir.1985).
12. On November 25, 1985, following a hearing on the pending motions, this Court issued an Order which (a) granted Plaintiffs' Motion to file a Third Amended Complaint, nunc pro tunc November 14, 1985, without ruling on the presence of the State of Florida for purposes of the recoverability of attorneys fees; (b) denied Defendants' jury demand; and (c) denying Defendants' request for further continuance of trial.
13. On November 27, 1985, Defendants, pursuant to Magistrate Rule 4(a) of the Local Rules of this Court, filed an Emergency Appeal from the November 25, 1985 Order of Magistrate Nimkoff to the United States District Court Judge Paine on grounds that the Magistrate erred (1) in denying Defendants' demand for jury trial; and (2) in denying Defendants' request for continuance of trial.
14. On November 29, 1985, Defendants filed their Answer to Plaintiffs' Third Amended Complaint. On December 2, 1985, Judge Paine denied Defendants' Appeal from Magistrate's Order of November 25, 1985.
15. While not stated in the November 25, 1985 Order, this Court's reasoning in denying Defendants' Demand for Jury Trial is set forth herein.
2. JURY TRIAL DEMAND
a. FEDERAL PRINCIPLES REGARDING WAIVER OF RIGHT TO JURY TRIAL
16. The Seventh Amendment to the Constitution preserves the right of trial by jury "in suits of common law." However, the right to a jury trial, although constitutional, is indeed waived by a failure to demand it in a timely fashion. Fed.R. Civ.P. 38(d);[7] Cox v. C.H. Masland and Sons, Inc., 607 F.2d 138, 142 (5th Cir.1979).
17. Specifically, Rule 38(b)[8] provides that a demand for a jury trial of any issue be served within ten days of the "last pleading directed to such issue."

18. It is further well-settled that if the original pleadings in an action effectively waive trial by jury under Fed.R.Civ.Proc. 38(b) and (c), the right to trial by jury of all matters waived in those pleadings "cannot be later revived by amending the original pleadings." Walton v. Eaton Corp., 563 F.2d 66, 71 (3rd Cir.1977); Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 581 (7th Cir.1975); Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1049 (9th Cir.1974); Lanza v. Drexel and Co., 479 F.2d 1277, 1310 (2nd Cir.1973); Williams v. Farmers and Merchants Ins. Co., 457 F.2d 37, 38 (8th Cir. 1972); Connecticut General Life Ins. Co. v. Breslin, 332 F.2d 928, 931 (5th Cir.1964); 9C Wright and Miller, Federal Practice and Procedure § 2320; 55. Moore Federal Practice, ¶¶ 3839[2].
19. While a jury trial may be demanded for any "new issues" within the meaning of Rule 38 raised by the amended pleadings, the "amendment does not revive a right previously waived to demand jury 670*670 trial on the issues already framed by the original pleadings." Walton v. Eaton Corp., supra, 563 F.2d at 71-72; Williams v. Farmers and Merchants Ins. Co., supra, 457 F.2d at 36 and cases cited therein.
20. The various Circuit Courts of Appeals generally have reasoned that amended pleadings which concern the "same general issues" do not raise "new issues within the meaning of Rule 38(b) even if they differ from the earlier pleadings in some particulars." See, Walton v. Eaton Corp., supra, 563 F.2d at 72; Hostrop v. Board of Junior College District No. 515, supra, 523 F.2d at 380-81; Trixler Brokerage Co. v. Ralston Purina Co., supra, 505 F.2d at 1049-50; Lanza v. Drexel and Co., supra, 479 F.2d at 1309-11; Moore v. United States, 196 F.2d 906, 908 (5th Cir.1952).
b. APPLICATION OF PRINCIPLES TO THE FACTS IN THIS CASE
21. On September 21, 1983, Plaintiffs filed their Amended Complaint Class Action. On November 2, 1983, Defendants served their Answer. Neither party filed a Request for Jury Trial at that time. On November 6, 1985, over two years after filing their Answer to Plaintiffs' Amended Complaint Class Action, Defendants served their Demand for Jury Trial.
22. The Court finds that Defendants' failure to comply with Rule 38(b) in not demanding a jury trial within ten days of the filing of their Answer on November 2, 1983, constituted a waiver of their right to a jury trial. U.S. v. 110 Bars of Silver Coins, 508 F.2d 799 (5th Cir.1975) cert. denied 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975); McCorstin v. U.S. Dept. of Labor, 630 F.2d 242, 244 (5th Cir.1980); 9 Wright and Miller, Fed. Practice and Procedure, § 2320 at p. 92 (1972) ("[T]he demand for jury trial must be served within ten days after service of the answer.").
23. Indeed, in their November 6, 1985 Jury Trial Demand, Defendants state no reasons why they did not timely request a jury trial following their November 2, 1983 Answer, but merely identify issues pertaining to Plaintiffs' Second Amended Complaint filed on September 21, 1985.

24. While this Court, under Fed.R.Civ. Proc. 39(b),[9] may have authority to grant Defendants' demand for jury trial notwithstanding their belated request, none of the factors identified by our Circuit which would justify a tardy request are present here. See, Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.1983) (Trial Court did not abuse its discretion in denying Defendants belated jury request). Factors identified by the Eleventh Circuit in Parrot v. Wilson, supra, 707 F.2d at 1207 to be reviewed by this Court in evaluating whether to grant Defendants' belated request for jury trial include:
(1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would result in a disruption of the court's schedule or that of the adverse party; (3) the degree of prejudice to the adverse party; (4) the length of the delay in having requested a jury trial; and (5) the reason for the movant's tardiness in requesting a jury trial.
25. Applying these factors to Defendants' untimely jury trial request support the denial of Defendants' belated request. First, the complex issues involved in this litigation regarding the constitutionality of conditions at the Glades Correctional Institution are most typically not subject to jury trials. Second, granting Defendants' motion would certainly prejudice Plaintiffs' trial preparation. Third, this is not a situation where a party makes a belated jury trial request several days, weeks, or even months following their last pleading. Indeed, Defendants' request was made over two years following their answer to Plaintiffs' Amended Complaint Class Action and less than one month prior to the beginning of the December 2, 1985 trial. Finally, Defendants offer no reason for their tardiness and our Circuit and its predecessor has repeatedly rejected "mere inadvertence on the movant part" as a basis to 671*671 allow a tardy jury trial request. Parrot v. Wilson, supra, 707 F.2d at 1267; Rhodes v. Amarillo Hospital District, 654 F.2d 1148, 1154 (5th Cir.1981); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 (5th Cir. 1980).
26. Under Rule 38(b), pleading "amendments not introducing new issues will not give rise to a jury trial." Guargando v. Estelle, 580 F.2d 748, 752-753 (5th Cir. 1978). A party's failure to demand a jury trial waives his "right as to all issues relating to the general area of dispute." Walton v. Eaton Corp. supra, 563 F.2d at 66. In rejecting the claim that a new issue had arisen in the amended pleadings which revived the right to request a jury trial, the Walton, supra, 563 F.2d at 73, Court reasoned:
Both "amendments" pleaded facts which had not been alleged in the previous complaints, but neither raised a "new issue," since they did not change the "basic issue" in the case or the "general area of dispute."
27. The only arguable new issues raised by Plaintiffs' Second and Third Amended Complaints would relate to the additional plaintiffs.[10] However, since evidence pertaining to the injuries suffered by additional plaintiffs while at GCI would be introduced irrespective of the pleading amendment as support for Plaintiffs' injunctive relief, no new issues are raised. Hostrop v. Board of Junior College District No. 515, supra (All the evidence which might be introduced under amended claims was probative evidence of pre-amended claims this additional count did not introduce a new issue.); Lanza v. Drexel and Co., supra, 479 F.2d at 1310 (Jury trial waived "as to all issues relating to the general area of dispute.").
* * * * * *

28. Having considered all of the evidence presented over a 10 day trial held in United States District Court for the Southern District of Florida in Miami, Florida on December 2-6, 9-13, 1985; heard testimony of 27 witnesses and reviewed a series of Exhibits and depositions of an additional series of inmate witnesses; requested, received and closely reviewed extensive post trial submissions; and heard oral argument of counsel on December 27, 1985, the Court pursuant to Rule 52(a) F.R.C.P., now issues its Findings of Fact and Conclusions of Law.
B. GLADES CORRECTIONAL INSTITUTION
1. HISTORY
29. Glades Correctional institution is one of thirty major prison facilities in the State of Florida. (Turner) As the second oldest prison in Florida, the development of Glades Correctional Institution reflects the recent history of the State. (Swanson, Pg. 36). The State of Florida acquired the site where the present institution is located through land acquisitions from delinquent tax payers under the Depression Era Murphy Act. (Ibid). Built in 1932, the facility began its operation and was known as State Prison Farm No. 2. (Turner). Located in agricultural western Palm Beach County, the facilities' inmates grew fresh vegetables for the three state institutions: Florida State Prison, Chattahoochee State Hospital, and the Work Farm. (Ibid, Pgs. 36-37).
672*672 30. Throughout the first several decades of its existence, GCI was a black segregated facility whose inmates worked in various agricultural endeavors. (Turner). In the early 1950's, the institution moved into the open dormitory buildings at its current location. A federal mandate integrated the all-black prison. (Swanson, Pg. 37).
2. OVERVIEW
31. Defendant R.V. Turner held the position of Superintendent of GCI from mid-1976 through his retirement on August 31, 1984. (Turner). Ron Jones was Superintendent in an interim capacity from September 1, 1984, through October 15, 1984. Thereafter, present Superintendent Randall Music served as Superintendent. (Swanson, Pg. 38). Mr. Music's last day as Superintendent coincided with the last day of trial, December 13, 1985. (Music)
32. As of July 29-31, 1985, 875 inmates were incarcerated at GCI. (P.Ex. 7) (Prison Inspector Report). Approximately 60% of these inmates were Black; the remainder were White or Hispanic. (Ibid.)
33. While Superintendent Music estimated the Hispanic population at 7% to 10%, records reflect that during an earlier period germane to this litigation, the Hispanic population was apparently even higher. D.Ex. 7 (Supt. Monthly Report of November, 1981, Pg. 2) ("Potentially serious management problems may develop due to large contingent of Latins in population.") (emphasis added). Because of DOC's general, although not absolute policy of incarcerating inmates as close to their home areas as possible, GCI draws many of its inmates from the South Florida area. (Brierton, Pg. 42) See, also, (Swanson, Pg. 129)

("Superintendent Music said that GCI seemed to have the function of taking care of anything in South Florida that no one else can handle, that it has become the catch-all for the Southern region."). During the Turner administration, 65% to 70% of those incarcerated were "close custody" prisoners. (Turner)
34. Inmates are housed in four open dormitories at GCI. These dormitories are referred to as Dorm A, B, C and D. Dorm A and D are the larger dormitories at any given time housing approximately 200 to 300 inmates. Dorms B and C are somewhat smaller and have a capacity to house approximately 70 to 80 inmates. (Swanson, Pgs. 112-113) The dormitories are arranged in the same manner insofar as inamate bunk arrangements. In A and D Dorms there were three rows of 20 bunk beds on each of the two wings within a dormitory. In B and C Dorms double bunks are also arranged in three rows. Dorm E is an honor dorm, which is somewhat different from the others.
35. In the front of each dorm there is a doorway. Behind the doorway is a screened area in which an officer is situated. This area is separated from all contact with the inmates by a cage, which is referred to as a "wicket." (Swanson, Pgs. 111-112). There are two dayrooms within the four main dormitories. On one side of the dayroom is a television and on the other side are game tables. (Swanson, Pg. 138). At the end of the dorm on the far side are the showers. In the shower area there are also urinals, washing and bath facilities. The shower areas are obscured from view if an officer is stationed in the "wicket." See, (P.Ex. 40, 41 and 42), (drawings of bunk, shower, dayroom and confinement areas by Dr. Swanson). See also, D.Ex. 1a-3c. (Composite photographs)
C. THE CONTEXT
36. The individual named Plaintiffs' damage claims can be analyzed only within the context of the general operational policies, practices, conditions and events existing at the general time period in which their claims arise. Disparate factors — ranging from wholesale manufacture of prison wine and regular screenings of sexually explicit videotapes to a heterosexually starved audience of inmates, to the maintenance of an ill-assorted guard corps whose members the inmates perceived as regularly trafficking in contraband, extortion, and neglect — converge into a tapestry that forms the backdrop for Plaintiffs' claims. A discussion of these contextual realities follows.
673*673 1. AN INSTITUTION
a. OFFICIAL DOCUMENTATION
37. Several written documents provide critical evidence as to the general nature and depth of security problems existing at GCI during the relevant time period of Plaintiffs' damage claims. (1980-1984).
(1) TURNER'S ACKNOWLEDGEMENTS TO SECRETARY WAINWRIGHT

38. Conditions at GCI were known to Superintendent Turner. On July 16, 1981, Turner wrote to the Secretary of Florida's Department of Corrections Louie L. Wainwright and informed him of the following:
On an almost daily basis I feel that our security staff is simply being tolerated by the inmate population rather than being in control of the operation of the institution. (emphasis added). (D.Ex. 13, Pg. 2).
39. Similar acknowledgement of severe security problems were provided in an earlier correspondence from Turner to the Secretary on March 15, 1979. (D.Ex. 14) (Vacancies of 1/3 of total COI's staff is "dangerous to the staff and inmate population. [emphasis in original] Only two officers assigned to 220 inmate dorm for supervision of inmates.") Turner stated:
Currently our count is in the neighborhood of 800. Approximately 400 of these inmates are close custody. I am apprehensive about our ability to control this population under the circumstances. (emphasis added).[11] (D.Ex. 14).
(2) THE 1980 PALM BEACH COUNTY GRAND JURY PRESENTMENT AND FINAL REPORT OF THE INSPECTOR GENERAL (1980)
40. In 1980, the Palm Beach County Grand Jury issued a presentment on January 30, 1980. The apparent impetus for the Grand Jury Presentment related to issues involving a audit and inventory relating to shortages of certain food products. However, the presentment also raised serious issues of inmate security germane to this case. Matters relating to the primary issues raised by the Presentment which concerned discrepancies in audit and shortages of meat and food, raised additional general matters concerning a breakdown of proper prison management: shortages were caused, among other reasons, through theft by inmates and staff. (P.Ex. 4, Pg. 3 of Grand Jury Presentment). Additionally, and more germane to the issues raised in this case, is the reporting through various testimony before the Grand Jury of problems relating to "lax security precautions." Testimony of staff and inmates revealed a free flow of contraband "including drugs, alcohol, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI." (Ibid, at Pg. 6).
41. Approximately eight (8) months later, the Department of Corrections Office of Inspector General conducted its management review of GCI. (P.Ex. 4, Tab B). The Office of Inspector General, under the direction of David Brierton, was established in 1979 (Brierton, Pg. 47) and acts as 674*674 an independent auditor and investigative arm of DOC (Brierton, Pgs. 6-7).
42. The Inspector General Report observed and corroborated similar issues concerning a breakdown of security as those identified in the Palm Beach County Grand Jury Presentment. The Inspector General found, among other matters, that

"[s]upervision in all three general areas of the compound must be described as serious, due to the lack of security personnel. Vacancies continue to be a serious problem. The dormitory situation is critical as there have been occasions when one dormitory officer is responsible for supervising more than one dorm at the same time." (P.Ex. 4, Tab B, Pg. 4 "Executive Summary").
43. Additional reporting of increase "inmate on inmate" and "inmate on staff" assaults reflected an increase over a past six month period (Ibid, Pg. 5). These assault trends, both inmate on inmate and inmate on staff were reflected elsewhere. (Ibid, Pgs. 20-21, ¶ 9.1 "Conclusions and Recommendations").
44. Moreover, the security problems were exacerbated by low morale GCI staff. An employee survey conducted by the Inspector General revealed that staff members did not feel that there were enough people in their unit to perform their duties properly, and when asked the question, "Did you receive instructions or guidelines on the responsibilities and supervisory functions of your job when you became supervisor?," they answered with a "resounding no." (Ibid, ¶ 29.1, Pg. 33).
(3) THE 1983 INSPECTION REPORT OF THE OFFICE OF THE INSPECTOR GENERAL
45. Approximately three years later, on September 19-21, 1983, DOC's Office of Inspector General conducted a subsequent investigation at GCI. In that report, the Inspector General noted "we fail to understand and appreciate laxity, in some instances, the disregard for established procedures." (P.Ex. 6, Pg. 2). In reviewing conditions at Belle Glade, the Inspector General offered the following overview: "In conclusion, the team found a need for a great deal of improvement at Glades Correctional Institution." (Ibid.). See also, (Ibid, Pg. 9), (Security problems relating to an inmate armed with a homemade knife threatening a correctional officer); (Ibid, Pg. 22) ("Inmate personal property is in no way orderly or neat. Homemade lockers are abundant.").
b. MAJOR INCIDENTS
(1) THE BARRETT INCIDENT
46. On April 15, 1984, at approximately 6:30 P.M., a fight broke out in C Dormitory involving several inmates. As a result of the fight, a state of confusion developed at GCI. Lt. James Schrader, the OIC (Officer in Charge) requested that off duty personnel be summoned to the institution. Lt. William Barrett, the acting Chief Correctional Officer; Lt. L.A. Peters, GCI's Internal Inspector; and Sgt. Ricky Hayes, were summoned. Those three individuals, were attending a local festival in Belle Glade known as the "Black Gold Festival". All three officers admitted they had been drinking alcoholic beverages. Barrett and Hayes had their faces made up to resemble clowns for the festival. Lt. Barrett and Sgt. Hayes arrived immediately and proceeded to the Gate House. Sgt. Barbara Wiesel, the Main Gate Supervisor, advised that there was an uncontrolled situation in C Dorm. Sgt. Wiesel reported at the time, that she noted a strong odor of alcohol, and noted that Lt Barrett appeared to be absolutely

unsteady on his feet and constantly leaning against the counter. Lt. Barrett requested that Sgt. Wiesel give him a shotgun and fifteen rounds of ammunition. Lt. Barrett loaded his shotgun. Lt. Barrett approached the C Dormitory. (Swanson, Page 208-210); (P.Ex. 9, Pgs. 1, 6 — The Special Investigation Entry No. 84-37911).
47. At that time, Lt. Barrett responded in slurred speech to Lt. Pipta, that "I want to teach these mother fuckers who runs this place". As Lt. Barrett remained outside, and Lt. Pipta entered C Dormitory and found the inmates sitting on their bunks and the situation otherwise calm. Barrett, while armed with a shotgun began yelling obscenities to the inmates and making 675*675 threats such as "I'm going to kill you mother fuckers." Lt. Barrett then ordered the inmates brought out of the dorm. Inmates Robert Whidden and William Allen were ordered to lay face down on the sidewalk at which time Lt. Barrett smashed them in the back of the head with the shotgun and continued to "jab them in the back of the neck with the barrel and continued yelling at them." Inmate Allen's head was split open after being struck by the stock of Lt. Barrett's shotgun. A third inmate, Westley Smith, was also struck. Two additional inmates, Jimmy Daniels and Melvin Kraft, were brought out from the dorm and kicked by Lt. Barrett. Following the incident, Superintendent Turner was made aware of what occurred. Turner did not notify the Prison Inspector because he "did not feel that the situation warranted notification of a Prison Inspector" (Ibid., Pg. 5). The Inspector General, David Brierton, through his office, did conduct a thorough investigation (P.Ex. 9). The Inspector General's office concluded that Lt. Barrett had committed various prison Rule violations. (Ibid, Pg. 6-12)s Additionally, Lt. L.A. Peters, GCI's Internal Prison Investigator, was also found to have committed additional prison infractions. (Ibid., Pg. 10-11).
48. Plaintiffs' correctional expert, Dr. Richard Swanson, corroborated the findings of the Prison Inspector's Office in concluding that senior officer Lt. Barrett had made gross errors in judgment. Dr. Swanson observed that the violations were so gross that immediate action should have been taken to at least suspend Lt. Barrett from the operation of a prison.[12]
49. Lt. Barrett remained functioning as a correctional officer for at least a full week following the April 15, 1984, incident. (P.Ex. 9, Exhibit 2) (Last page indicating the signature of William Barrett of April 23, 1984 on Incident Report).
50. Plaintiffs' expert, Dr. Swanson, noted his opinion that Superintendent Turner appeared to unduly delay in suspending Lt. Barrett. This was particularly poor management in the context of the egregious nature of the incident (Swanson, Pg. 329) ("His [Turner] initial reaction seemed to be oddly mild."); (Swanson, Pg. 211) ("The violation was so gross, that it seems to me that immediate action should have been taken to at least suspend the Lieutenant from the operation. Some action ultimately occurred, but took considerable amounts of time.")[13]
(2) THE ILLEGAL ACTIVITIES OF OFFICER DIXON
51. In mid-1974 the activities of a correctional officer, Clarence Dixon, were investigated by various authorities including the Inspector General's Office of the Department of Corrections and the Palm Beach County State Attorneys Office. Evidence related to Mr. Dixon's trafficking in drug contraband and extortion of inmates and their families. This documented

investigation corroborates other inmate allegations 676*676 of wholesale staff corruption with regard to the extortion of inmates, and the free flow of contraband within GCI.
52. The investigation resulted in Mr. Dixon's being arrested and charged with three counts of bribery. (P.Ex. 10, Tab B, Pg. 5, Special Entry # 84-4647). Moreover, the investigation of Officer Dixon further demonstrates the careless manner in which Dixon had been screened for employment. Prior to his employment at GCI, Dixon had been terminated from Paholkee High School following the Broward County school board's obtaining a revocation of Dixon's teaching certificate. While at Pahokee, Dixon had collected $75 fees from graduating students to introduce them to colleges, had taken them to the campuses, but had failed to make any arrangements for introduction (P.Ex. 10, Tab C, Memo of March 6, 1984); (Swanson, Pgs. 222-224).
(3) LARRY PRYOR
53. The assertions of Larry Pryor, while offering less conclusive credibility than the external investigative reports of Lt. Barrett and Officer Dixon, nonetheless reveal additional evidence of wholesale staff corruption. Pryor worked as an informant-enforcer for various correctional officers, who either permitted him or directed him to harass other inmates (Deposition of Pryor, Pg. 35).[14]
54. Pryor worked with several officers (Ibid, Pg. 35). When Pryor indicated that he was going to do something about inmate Eddie Cobb, Pryor was told by Lt. Barrett that whatever he chose to do should be done on Barrett's shift (Ibid, Pgs. 39-40). Pryor understood that to mean that if he took any action against Cobb on Barrett's shift, he "wouldn't go to jail or get prosecuted for it." (Ibid., Pg. 17). Following a fight with Cobb in which Pryor stabbed him, Pryor was put in a confinement cell until "things blowed over," but was never given any disciplinary report (DR) for the incident. (Ibid, Pg. 19).
c. THE FREE FLOW OF CONTRABAND AND EXTORTION
55. A distinct picture of a wide range of free flowing contraband into GCI emerges from independent and corroborative sources of information and record evidence. The contraband includes: drugs, alcohol, weapons and extortion activities flowing from this illegal traffic.
56. Dr. Swanson, Plaintiffs' correctional expert, observed that "little or no effort was taken to control illicit activity" resulting "in readily available contraband" (Swanson, Pgs. 49, 326) including "drugs, alcohol and weapons to inmates apparently upon demand." (Ibid, Pg. 50). The free flow of contraband (Swanson, Pg. 121) seemed to be common knowledge; "people carried knives, people smoke dope without worrying or trying to hide it from officers" and the staff was "actively involved in these illicit activities," (Ibid.) as well as actually promoting the influx of contraband. (Swanson, Pg. 199). Swanson's conclusion, with which the Court agrees and so finds, provides an unmistakeable pattern of free flow of contraband, is based upon corroborative evidence including: (i) written documentation[15], as well as by inmate testimony[16].

677*677 2. FAILURE TO PROPERLY SUPERVISE PERSONNEL AND MANAGE INSTITUTION
a. STAFF TRAINING
(1) WEAPONS
57. One barometer of poor staff training can be gleaned from internal GCI records. GCI incident reports revealed officers (P.Ex. 33) lack of familiarity with weapons. (Swanson, Pg. 135). This opinion of Plaintiffs' expert was also expressed to him by Lt. Peters in an interview and was not rebutted at trial. (Ibid.) Peters also noted that a recently implemented weapon system developed under Superintendent Music "may" solve some of the weapon problem. This system requires officers to first demonstrate some qualification with a weapon prior to obtaining it. (Ibid., Pgs. 135-136).
58. Problems with improper training and use of weapons ranged from the Barrett incident to day-to-day incidents of problems with weapons by staff. (P.Ex. 33) (Incident Reports).
(2) STAFF OUT OF CONTROL
59. The Barrett-Dixon incidents underscore the day-to-day operation of GCI with its staff not controlled by Superintendent Turner. Staff morale was low. (P.Ex. 4, Management Review of GCI, ¶ 29.1, Pg. 33) (Employee Questionnaire reflected that staff believed (i) not enough officers in unit to do job right and (ii) insufficient instructions and guidelines given when officers became supervisors). Turnover was high. (D.Ex. 14) (Turner letter to Wainwright) (Critical situation of 1/3 of staff vacancies); (P.Ex. 39) (Summary statistics of turnover rate) (Swanson, Pg. 184-185); (P.Ex. 31) (Superintendent Monthly Reports reflecting turnover). Officers worked excessive hours and often two shifts. (P.Ex. 39) (Swanson, Pgs. 184-188).
60. A direct result of a staff which was inexperienced, over-worked, under-educated, illinformed, insecure, and otherwise unable to protect inmates under their charge (i.e., reluctance to report rapes) is the general climate of a facility with a high security risk. (Swanson, Pg. 197)
b. FAILURE TO SUPERVISE STAFF
61. Directly related to the individual raping and assaults of the named plaintiffs was the lack of proper staff supervision due to Defendant Turner's failure to station the officers properly.
62. As Lt. Peters admitted, due to the (i) sheets, clothes and personal lockers hanging from the bunks (Swanson, Pg. 318); (ii) the obstruction of a second level of bunks in the middle row of beds (Ibid), an officer's view from the cage or wicket in which he was stationed was obscured. (Peters) The view from the wicket into the shower area was even more obscured. (Swanson, Pg. 113) Lt. Peters, the Chief Investigative Officer during the Turner

administration, admitted the lack of any clear vision to the shower area by an officer stationed in the wicket because of the various obstructions. (Peters)
63. While Peters knew that officers were supposed to be on constant patrol within the dorms, this did not take place. (Peters) Moreover, and even more seriously, Turner could recall no action ever taken against an officer — by reprimanding, suspending, or otherwise disciplining — for failure to patrol the dormitories. (Turner)
678*678 c. NO PROCEDURE FOR INVESTIGATING RAPES
64. As discussed in greater detail, infra, ¶ 82, Lt. Peters, the Chief Internal Investigator at GCI, candidly recognized that no procedure ("standard operating procedure") existed in which to investigate rapes or alleged rapes. No standard interview process, no standard polygraph procedure, no standard rectal examination, no psychiatric examination, and no standard reporting to any law enforcement authority occurred. (Testimony of Peters and Turner). No such policy was ever written. (Ibid)
65. Indeed, Defendants' own witness, Inspector General Brierton, opined that at the very minimum: (i) medical evidence should be secured; (ii) a full statement taken from the alleged victim, and (iii) the matter should always be referred to a local prosecutor. (Brierton, Pgs. 109-111) These steps were not followed. (Peters); (Saunders, Pgs. 556-557); (Aldred, Pgs. 812-813); (Harper, Pg. 746).
66. This lack of any procedure relating to the investigation of rapes resulted in the prosecution of only one rape in the entire Turner administration. Moreover, no rapes were ever reported by GCI authorities in any of the massive amounts of internal documents generated from the institution. (Swanson, Pg. 150).[17]
67. The Court is convinced that the lack of investigative procedure led to an atmosphere where inmates could rape other vulnerable inmates without concern of being detected or deterred.
d. THE LAWSUIT
68. During the early stages of this lawsuit in 1982, this Court took testimony from Plaintiff LAMARCA (Swanson, Pg. 258). LaMarca provided an account of other inmates who had been abused or otherwise violated (Ibid, Pg. 259). Counsel for Defendants, Mr. Belitsky of the Attorney General's Office and Assistant Superintendent Arline, were present during the course of those proceedings (Ibid). The Court was assured by Messrs. Belitsky and Arline that a full investigation of Plaintiff's allegations of additional inmate violations would take place (Ibid, pg. 260).
69. Not only did it become apparent that no investigation occurred when no response was forthcoming from Defendants, but Defendant Turner testified that he was totally unaware

that these assurances were made to the Court and that he was completely unaware even of the circumstances of this lawsuit until the recent pre-trial activities (Turner).[18]

70. Simply, the point is that this lawsuit, unquestionably raising matters of grave concern involving allegations of the most degrading violations to Plaintiffs, somehow got lost between the rather large "cracks" of Defendant Turner's management system. This account serves merely to underscore Plaintiffs' position that GCI, under the Turner administration, was an institution not under the control of that Defendant.

3. THE LACK OF THE MOST ELEMENTARY PROCEDURES TO MINIMIZE THE LIKELIHOOD OF RAPINGS AND ASSAULTS

a. KNOWLEDGE: THE INDICES OF RAPE THAT A PRUDENT ADMINISTRATOR WOULD DISCERN

71. It is clear to this Court that various indices, when considered in combination, 679*679 should make it readily discernible to any prudent prison administrator that inmate rapes are occurring. The corollary, of course, is that armed with the knowledge that rapes were occurring, the failure to promulgate and adhere to the most rudimentary procedures constitutes a deliberate indifference toward inmate security. While none of the indices alone would reasonably suggest the occurrence of rape, the combination of these indices, as in this case, raises an issue of knowledge or constructive knowledge on behalf of Defendant Turner. The Court now reviews these indices.

72. First, the free flow of contraband, and assaultive inmate-on-inmate and inmate-onofficer behavior previously reviewed, provides a picture of an institution marred by violence and illegal activity. Plaintiffs' experts, Dr. Swanson and Dr. Caddy, as well as Defendant Turner and Inspector Brierton, all agreed that rapes in prison are a manifestation of acts of violence and domination, in contrast to acts of sex. See, infra, ¶ 117. Thus, homosexual rape is but an additional and inevitable, albeit extreme, discord in the cacophony of inmate assaults, extortions, drunkenness, drug use, and armament that characterized GCI during the tenure of Defendant Turner.

73. Second, the consistent and disproportionate number of young white inmates who "checked in" to protective confinement further corroborates the white plaintiffs' recollection of terror on the compound. Consider, for example, the following statistical snapshot of the protective custody population in mid-September, 1983:

PROTECTIVE CONFINEMENT POPULATION[19]

----------------------------------------------

WHITE

BLACK

TOTAL

----------------------------------------------

20

1

21

----------------------------------------------

(P.Ex. 6) (Inspection Report of

September 19-21, 1983)
74. The volume of the warning that such statistics should have signaled was amplified by the punitive nature of protective confinement during the 1980-1984 period. The inmates who checked in were very distressed; otherwise they would not have been checking in (Caddy, Pg. 1265).
75. Moreover, the impact of the statistics is further underscored when considered in the context of the punitive nature of protective confinement, at least during the period of 19801984. Conditions in protective confinement were punitive; the cells lacked adequate ventilation (P.Ex. 5, Memo of September 22, 1985) (Prison Inspection Report); the lighting was poor (Ibid); two, three four and five inmates were placed in the cells containing two bunks (Ibid); (Testimony of Eddie Johnson, Greg Zatler); the cells were infested with roaches and vermin (Ibid); inmates in protective confinement were taunted by others outside of the confinement area (Swanson, Pgs. 123, 139); protective confinement inmates often were housed with administrative detainees (Turner); no exercise was offered; showering was allowed only three times per week (Eddie Johnson and Greg Zatler); and inmates in protective confinement lost their canteen privileges. (Ibid.)
76. Notwithstanding the punitive nature of protective confinement, some inmates would remain in the confinement for months. Indeed the shortages of cell space attests to the inmate demand to "check in." (Swanson, Pgs. 203, 316) Plaintiffs' expert psychologist, Dr. Caddy, observed that the inmates who had opted to check into a confinement area as described would clearly manifest a high level of distress in the general dormitory population. (Caddy, Pgs. 1263-1266).
77. Third, the general "wolfing" and cat-calls of aggressive black inmates stationed around the compound during the initial periods of incarceration when new 680*680 inmates were transferred to GCI (particularly the smaller, younger and at least physically more vulnerable white inmates) would suggest, in combination with other factors, that sexual pressures were severe. The corroborative description of these inmate experiences to Dr. Swanson when he interviewed the individual Plaintiffs incarcerated in institutions in different parts of the State prior to the trial enhances the credibility of their individual recollections.[20] The Court finds that the events did take place.
78. Fourth, more overt signs of sexual activities, some consensual, further provide an indication of assaultive rape conduct. Sheets hung from the bunks; inmates moaning in their bunks; the showing of pornographic movies (Swanson, Pgs. 8-9, 375-376) in a trailer in which "cries and moaning" of inmates were heard, apparently are all part of the ritual at GCI.
79. Fifth, some rapes, in fact, were reported; although in the case of Plaintiffs Aldred and Saunders, Defendant Turner apparently was not made aware of these facts. Plaintiff Harper's reporting and subsequent meeting with Turner is discussed elsewhere. See, supra, Pg. 678, n. 17.
* * * * * *

80. Having reviewed the knowledge or constructive knowledge that rapes were occurring, the Court now addresses various elementary procedures that could have been utilized to minimize the likelihood of raping and assaults.
b. THE PROCEDURES WHICH SHOULD HAVE BEEN EMPLOYED
(1) IMPLEMENTATION OF A STANDARD PROCEDURE TO INVESTIGATE RAPES
81. As previously detailed, see, supra, ¶ 64, the Court has reviewed the fact that there existed no procedure known to the highest ranking investigator at GCI — Mr. Peters. (Peters) (No "standard operating procedure.")
82. In sum, no process or procedure was utilized to insure the full investigation of the possibility that a rapes had occurred.[21] This created an atmosphere where assaultive inmates could continue to prey upon more vulnerable prisoners and never run the risk of detection. Indeed, the Investigator at GCI, Mr. Peters had never talked to two of the Plaintiffs who reported being raped — David Aldred and Martin Saunders. Nor did Defendant Turner talk to these individuals.[22]
(2) NO REQUEST FOR INVESTIGATIVE AND PROSECUTORIAL ASSISTANCE
83. As previously noted during the entire Turner administration, Defendant Turner and Lt. Peters could recall only one rape incident ever prosecuted. (Peters and Turner) Other areas of criminal activity within the prison met with a similar fate. During Turner's administration no State prosecution was ever initiated for any weapons possession by any inmate at GCI. (Peters)
84. The Court further finds that the atmosphere that existed at GCI during the tenure of Defendant Turner was one in which inmates bent on rapes and other 681*681 expressions of violence roamed the compound with impunity. It was an atmosphere fostered by the institutional leadership's failure to initiate criminal prosecution against any but one prison rapist. It was an atmosphere nurtured by Defendant Turner's refusal to seek assistance from outside state investigators (prison inspectors, sheriff's deputies, State Attorney's investigators) and prosecutors to deal with such state crimes as sexual battery, aggravated assault, and armed robbery, as well as to seek assistance from federal officials for criminal violations of 18 U.S.C. § 241, et seq., or any other applicable federal statute arising from such activities as those ascribed to Lt. Barrett and Correctional Officer Dixon. While accepting as true the Defendant's testimony that he spoke to legislative committees and civic clubs concerning funding levels for GCI, the Court finds that he absolutely ignored the criminal justice remedies to which he had ready access on behalf of his charges.

85. While the independent Inspector General, offices of David Brierton were called upon in such matters as the Barrett and Dixon investigation, Turner never called upon that office to conduct any investigation into assaultive behavior by inmates or any rapes that occurred. (Turner).
86. Peters conducted investigations at GCI only when directed by Superintendent Turner. (Peters). Turner never requested an investigation of the rapes of David Aldred, Martin Saunders, or Billy Joe Harper. (Turner). Each of the three Plaintiffs had reported to other prison authorities that they were raped (Saunders, Pg. 1563); (Aldred, Pgs. 812-815); (Harper, Pg. 746); however, because there was no discernable process to inform the higher chain of command at GCI, neither Aldred nor Saunders were ever interviewed by Lt. Peters.
87. Beyond the availability of the staff of the Inspector General's Office, Superintendent Turner failed to avail himself to other possible investigative arms of the government. While Turner referred all litigation to the Attorney General's Office, he never requested investigative assistance through the offices of the Attorney General. (Turner) Although there was some testimony that Lt. Peters had sought criminal prosecution from the State Attorney's Office of Palm Beach for various matters, it appears that no request other than the single rape prosecution was ever made for criminal activity involving rape. (Peters) Additionally, there was no evidence that Defendant Turner ever attempted to personally meet with officials of the State Attorney's Office in order to develop a meaningful protocol of procedure and policy in which to involve the State Attorney Office in various criminal investigations at GCI. Finally, while the Federal Bureau of Investigation investigated at least one matter, its investigative offices were never requested by Superintendent Turner in order to conduct investigations of violations of inmates' civil rights under the various federal criminal statutes.
88. The fact that no investigations of rapes occurred is demonstrated by the conspicuous absence of any reference to rapes in the reams of internal documents analyzed by Dr. Swanson. (Swanson, Pgs. 150-151), P.Ex. 31.
(3) INMATE MOVEMENT CONTROLS
89. During the Turner administration, inmates had free ingress and egress throughout the compound and dormitories. As stated previously, inmates were able to crawl under the fence fronting the protective confinement cell area and harass or threaten those inmates housed in protective confinement. The Prison Inspector Report of September 19-21, 1983, (P.Ex. 6, Pg. 8), notes that inmate movements from one location to another are not properly controlled nor supervised by staff.
90. The control of inmate movement, particularly in an institution such as GCI with a high number of close custody inmates (65% to 75%) (Turner) and in an open dormitory setting, would make the necessity for some limitation on inmate movement critical.
91. Not until October 15, 1984, when Defendant Music became Superintendent at GCI, was a pass control system utilized to 682*682 monitor the movement of inmates (Swanson, Pg. 137), (Music).

(4) STATIONING OF OFFICERS
92. As previously reviewed, due to the physical structure of the dormitory, an officer stationed in the wicket cage did not have a clear view of other areas of the dormitory because of clothing and other personal possessions that inmates kept on their bunks, supra, § 62. Additionally, during the Turner administration double bunking existed in the middle level of bunks, supra, § 34. Finally, because of the location of the shower area, it was impossible for an officer to view activities occurring in the shower from the wicket. (Swanson, Pg. 113) ("You cannot see back to the shower area for the obstruction of the bunks and the property piled on top of the bunks.") (Swanson, Pgs. 317-318) (Difficult if not impossible for officer in wicket to see shower area; double bunk in middle row obscures vision from wicket.).
93. Notwithstanding these obstacles, Defendant Turner never initiated any administrative policy that officers patrol the dormitory on a regular basis. Turner testified that he could not recall disciplining; suspending; or ever reprimanding an officer for failing to patrol the dormitory area. Lt. Peters recognized that it would take an officer approximately ten minutes to walk throughout the dorm and agreed that if a rape took more than ten minutes in the shower area, then an officer properly on patrol would walk into the area of the shower while the rape was in progress.[23]
94. Following Turner's retirement, Superintendent Music removed the second bunk level in the middle row of the dormitories and restricted the placement of personal property, sheets and lockers on the bunks in the dormitories in order to eliminate the obstruction of the officer in the wicket. (Swanson, Pgs. 128-129).
(5) TRANSFER OF THE WOLVES
95. It is instructive to compare Superintendent Turner's practice in managing the transfer of aggressive assailant "wolves" who assaulted, extorted and sometimes raped more vulnerable inmates with that of his successors, Jones and Music.
96. Aggressive wolves appeared to be tolerated rather than transferred out of GCI; these assailants were allowed to recruit and prey on vulnerable inmates. (Swanson, Pgs. 51, 202). Turner articulated his helplessness in removing the wolves from damaging and violating other inmates. (Turner). Attentive review of the facts in considering two areas of evidence reveals Turner's deliberate indifference to his responsibility to protect more vulnerable inmates.
97. First, in his short stay at GCI interim Superintendent Jones (August 1, 1984 — October 15, 1984) shipped out six busloads of problem inmates. (Swanson, Pgs. 134, 202). In each of his first six months as Superintendent Music effectuated monthly five negative transfers (a rejection of an inmate assigned to GCI). (Ibid. Pg. 203). Additional inmates were "swapped" or exchanged by Music. (Ibid. Pg. 130). These efforts were not made by Turner. The unrebutted opinion of Turner's Chief Investigator, Peters, as to this matter is clear and revealing:

When asked how Superintendent Jones could do this [transferring known inmate assailants] when it seemed not to be possible for Superintendent Turner, Lieutenant Peters said perhaps you have to understand Superintendent Turner's background. He did not seem to see this kind of inmate as a problem in the institution.
I then asked if the problems are being understaffed, there was a chronic understaffing, would the high turnover have let Mr. Turner to dismiss problem staff. Lieutenant Peters said if you work with a chain gang for 30 years, you define problems with a different perspective. (Swanson, Pg. 134)

98. Second, a more empirical review of three known inmate "wolf-assailants" is equally informative. The first, Larry 683*683 Pryor, had harassed plaintiff Martin Saunders and raped him in the bathroom in the Classification Building. See, infra, ¶ 151-153. Subsequently, Pryor also stabbed Plaintiff Eddie Cobb. See infra, ¶ 177. The following chronology is revealing:

CHRONOLOGY CONCERNING LARRY PRYOR

DATE COMMENT

DOCUMENT

January 21, 1983 Parole Report serious pattern of assaultive

Pryor "reflects" a behavior."

March 1983 Saunders. (infra, ¶ 153).

November 15, 1983 of the above
security reasons. We

Classification[24] Team at GCI

information that inmate Pryor is

strong arm tactics ..."

inmate Kinner while

Pryor rapes Martin
"The team recommends transfer mentioned inmate for have received actively involved in [I]nmate Pryor assaulted taking these items.

December 29, 1983 Computer message transfer of Pryor from GCI
from GCI

Cancelling scheduled to UCI.

January 27, 1984 (infra, ¶ 177)

Pryor stabs Eddie Cobb

October 15, 1984 Superintendent

Music becomes

November 10, 1984 incident of November
month after Music becomes

Pryor transferred to FSP 12, 1984 (less than one

(Pryor Inmate File); (Swanson,

Superintendent) [Source: P. Ex. 26 Pgs. 157-159).]

99. The second assailant, Willie Dock, was transferred out of GCI on September 6, 1984 (P.Ex. 16, Tab B) (Swanson, Pg. 155), for "management and security reasons." This occurred only one month after interim Superintendent Ron Jones replaced R.V. Turner. Just several months earlier in March, 1984, Willie Dock gang-raped Ronald Durrance. See, infra, ¶¶ 132-133.

100. The third assailant, Levi Fisher, was involved in homosexual activities with young white males. (Peters). Lt. Peters testified that Fisher had assaulted other inmates as well and knew Fisher to be a wolf.[25] Nonetheless, Fisher was left in the D-Dorm and raped Billie Joe Harper. See, infra, ¶ 162.

(6) THE PORNOGRAPHIC MOVIES

101. Hard-core pornographic video moves showing explicit acts of intercourse and anal penetration were shown on a regular basis at GCI. (Swanson, Pgs. 375-376) The movies were a trap. They were unsupervised. (Swanson, Pgs. 88-90). Sounds of inmates screaming and crying could be heard from the trailer. (Swanson, Pgs. 107-108). Plaintiff Bronson was forced to masturbate an assailant at knife point in the movie trailer. (Swanson, Pg. 77), (Bronson). See, infra, ¶ 144.

102. This Court has no hesitation in agreeing with Plaintiffs' experts that the showing of unsupervised pornographic movies at GCI is absolutely inappropriate and indeed would only serve to "maximize the possibility of sexual and other violence." (Caddy, Pg. 1267).[26]

684*684 4. WITHIN THE CONTROL OF TURNER: THE LIMITED FINANCE ISSUE

103. Defendant Turner has presented evidence which focuses upon the inherent limitations within which he performed his duties as Superintendent at GCI. These limitations relate to the fiscal realities in attempting to comply with various constitutional norms. Turner articulated these limitations in describing two overriding problems during his administration. (1) the lack of staff, and (2) the physical plant. The Court is sensitive to the inherent financial problems incurred by Turner, or for that matter any higher level correctional official occupying the position of Superintendent at GCI. Limited financial resources however is not dispositive of Turner's potential liability in this case. Rather, the issue to be considered is whether "full compliance [of constitutional norms] is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority". Williams v. Bennett, 689 F.2d. 1370, 138788 (11th Cir.1982).

104. The Court has made inquiry into this issue and is convinced that events were not beyond the control of Mr. Turner and that even in light of the financial limitations and realities in which he operated, his conduct fell short of accepted and prudent correctional practices.
105. In support of this conclusion, the Court lists the following specific evidence which reflects practices which would cost little or no monies; which were either ignored or intentionally rejected by Turner, which were well within his administrative control, and which, when considered separately and in combination — the Court is convinced — would have minimized or eliminated the likelihood of rape and assaults of the various Plaintiffs at GCI.
(i) Turner's failure, at no cost, to reprimand, discipline, or suspend staff officers who failed to carry out the most elementary assignments such as regularly patrolling the dormitories, particularly in the evening hours, which would have minimized the opportunity for rapes and assaults to have occurred. See, supra., ¶ 63.
(ii) Turner's overall laxity, with his staff insofar as evidence of minimal or no control through reprimands, discipline or suspension which allowed correctional officers to function with impunity in the face of wholesale extortions, free flow of contraband including weapons, drugs, and alcohol; and permitting sexual activities such as the pornographic video movies to occur thus creating a general lawless climate from which the natural and forseeable consequences were wholesale inmate assaults and rapes. See, supra, ¶¶ 61, 101
(iii) Turner's failure, at no cost, to control and direct his staff and inmate population to remove sheets, personal property, lockers draped on inmate bunks in order to provide a clear unobstructed view for staff to monitor prisoner activities within the dormitories. This failure led to an officers' obstructive view of the dormitory and showers where rapes of Plaintiffs occurred. See, supra, ¶ 61.
(iv) Turner's rather shocking failure, at no cost, to promulgate and adhere to any meaningful process to investigate allegations of rapes and inmate assaults. This failure led directly to staff not reporting allegations 685*685 of rape through the chain of command, supra, ¶ 63 (Aldred and Saunders); led to rapes never reported by line correctional officers; and further resulted in rapes not investigated with low cost procedures such as: (i) rectal examinations; (ii) polygraphic tests; (iii) psychiatric evaluations; and (iv) in depth interviews. See, supra, ¶ 82.
The consequences of these failures were that rapes remained uninvestigated and not prosecuted thus insuring a climate where an inmate assailant could sexually violate more vulnerable inmates with absolute impunity.
(v) Turner's failure, at no cost, to enlist the investigative and prosecutorial assistance of other branches of government to at least minimally make an effort to investigate and prosecute rapists and assaultive inmates. Available investigative resources never properly utilized include the ((i)) Palm Beach County State Attorney; ((ii)) Office of the Inspector General of Florida; ((iii)) the Attorney General; ((iv)) the Federal Bureau of Investigation.[27]
(vi) Turner's failure unlike his successors to impose inmate controls, at no cost, on prisoner movement throughout the compound and dormitories. See, supra, ¶ 89.

(vii) Turner's failure, at no cost, to transfer known assailants out of GCI through requests to DOC; through informal "swaps" or by merely adhering to classification decisions. See, supra, ¶ 96. This failure allowed Larry Pryor to remain at GCI at the times that he raped Saunders and stabbed Cobb, see, supra, ¶ 98, and allowed Willie Dock to remain at GCI at the time he and others raped Durrance, see, supra, ¶ 99.
D. RAPE
1. OVERVIEW
106. In an effort to appreciate and address general principles concerning the issue of rape in prisons and most specifically, the dynamics of rape which is in part the subject matter of this lawsuit, the Court will review and make general findings on this subject. These findings, in turn, will affect and further define other previous factual findings provided in this decision.
2. FINDINGS
a. CORROBORATION: DID THE RAPES OCCUR?
107. The obvious fundamental issue which necessarily must be resolved is whether the rapes of Plaintiffs and other inmate witnesses occurred.
108. Beyond the Plaintiff-inmate testimony, which this Court has intentionally reviewed with great care and factual precision, two additional corroborative avenues support the inmate testimony. This corroboration comes in the form of extensive expert testimony of Plaintiffs' experts. First, Dr. Richard Swanson, a correctional expert trained in both psychology and law (P.Ex. 34) (Curriculum Vitae), (Swanson, Pg. 3-18), utilized a multi-variate approach (Ibid, Pg. 21) in drawing from essentially five independent sources of data to analyze Plaintiffs claims.[28]
109. Second, Dr. Glenn R. Caddy, a clinical psychologist, (P.Ex. 35), (Caddy, Pg. 11151128), with personal experience in treating rape victims and general research devoted to the issue of rape (Caddy, Pg. 1125), and also experienced with treating and investigating matters concerning prisoners. 686*686 (Ibid, Pgs. 1125-1126), additionally corroborated the fact that in his opinion the Plaintiff rapes had indeed occurred.[29] (Caddy, Pgs. 1241-1246) This conclusion was based upon: (1) the integrity of each of Plaintiffs' separate emotional responses in recounting the specific incidents of their rape experience. (Ibid. Pg. 1242) ("Those men who have been raped present essentially classic profiles of the consequences of rape.") Dr. Caddy observed that in his professional opinion it would be unlikely, Ibid, ("I have no reason to believe") that the plaintiffs-witnesses could artificially construct the emotional state that he observed[30]; (2) the inference of integrity from the commonality of the reporting of rapes to him which provided internal consistency to the varied circumstances supporting the conclusion that rapes occurred. (Ibid, Pgs. 1242-43); and (3) generally, see infra ¶ 198, that in the context of the accepted frequency of not reporting ("underreporting") of rape, coupled with the normal inmate disinclination to report.

110. Based upon these reasons, as well as the totality of facts discerned, not only from the Plaintiff-inmate testimony, infra, ¶¶ 122-195, but the other findings, this Court concludes that the rapes and assaults alleged by the various Plaintiffs and inmate witnesses indeed occurred.
b. UNDERREPORTING
111. Both of Plaintiffs' experts confirmed the generally accepted principal that rapes typically are underreported.[31] (Swanson, Pgs. 150-154); (Caddy, Pg. 1243) (As much as 50% of female rape in the non-institutional context are not reported. Concludes that underreporting would be even higher within a prison.)
112. Dr. Caddy's view of even greater underreporting of rape within a prison is based upon the inmate disinclination to report because they not only have to deal with the degrading and humiliating consequences of reporting as do citizens in the outside world but also may "dramatically increase rather than decrease the risks that they will be seen to be vulnerable people to be raped again." (Ibid, Pg. 1243) Simply, the terror often survives the initial assault — once an inmate is raped, he is marked as a victim for repeated sexual assaults for the remainder of his imprisonment.
113. In accepting these findings of underreporting of rape at GCI, this Court is not alone.[32]
c. THE DEGRADATION OF RAPE
114. At the risk of finding the obvious, the Court deems it necessary, particularly 687*687 in light of the requested damage award for the individual Plaintiffs and also in the context of Plaintiffs' request for general injunctive relief, to make findings as to the general nature of the violation of rape.
115. Defendants' own witness, Inspector Brierton expressed it plainly and with clarity (Brierton, Pg. 89). ("You have to look at rape as an assault"); Defendant Turner's opinion is equally forceful: "Short of being killed I could think of nothing worse happening in prison." (Turner).
116. The Court accepts these opinions and shares its view that rape is one of the most degrading events, short of death, that can occur in prison. It follows that any institutional practices than can minimize its occurrence must be faithfully and consciously followed and observed by all prudent prison administrators. The Court finds that terror stemming from fear of sexual assault cannot be reconciled with the penological philosophy of the American prison system, which "emphasizes a balanced combination of deterrence, incapacitation, rehabilitation, and retribution."[33] Society must not permit prisoners to inflict the sort of punishment on other prisoners that law and common decency forbid the State.
d. THE NATURE AND CONSEQUENCES OF RAPE ENDURED BY PLAINTIFFS AND INMATE WITNESSES

(1) AN ACT OF VIOLENCE
117. The proof reflected, and the Court so finds, that the universal opinion of all witnesses — of both parties — is that rapes in a prison setting such as GCI are acts of violence, as opposed to sexual conduct.[34] (Brierton, Pg. 89) ("An issue of dominance.") ("So the difficulty is when you begin to talk about homosexual rape, you have to look at the rape as an assault."); (Turner) ("An act of violence.") ("An act of violence even if victim has prior consentual relations with other inmates).
118. It follows and the Court finds that due to its very nature as acts of violence, the rapes that occurred are not isolated incidents of sexual conduct, but rather flow directly from the lawless prison conditions at GCI. Acts of inmate assault on inmates; inmate assaults by and upon correctional officers; an environment of free-flowing illegal activity involving extortion, possession of weapons, drugs, alcohol, and staff corruption; and the corollary failure to punish or prosecute inmate-staff violators so that such assailants' and aggressors' conduct was not deterred by the rule of law and threat of punishment, all form the background and climate which in turn, provide a background and climate that preordained homosexual rapes and other inmate assault occurred.
(2) RACE
119. As described in detail, the named plaintiffs in this lawsuit, with the exception of Eddie Cobb, were all whites victimized by black assailants. See, supra, ¶¶ 122-190. See also, (Swanson, Pg. 287) (High percentages of blacks reported by Plaintiffs were the perpetrators.). Indeed there 688*688 was no evidence presented by either party of any assaults by whites upon blacks; the pattern (other than Eddie Cobb) was consistently of black assailants assaulting whites (Swanson, Pg. 291).[35]
120. While one writer has concluded that there are definite "socioracial overtones" in the act of sexual victimization, noting that black aggressors who make whites submit to their sexual advances often comment "now it is their [the blacks] turn,"[36]; scholars, however, take pains to point out that "it is not black culture that is behind prison sexual aggression; rather, it is a criminal, male, youthful black subculture of violence." D. Lockwood, Prison Sexual Violence, at 105. Whatever the motive, the Court finds that any prisoner, especially one who is white and/or slightly-built, may find himself threatened or raped even during the first day of confinement at GCI.[37]
(3) THE METHOD AND CIRCUMSTANCES OF PLAINTIFFS' RAPES
121. Additional factors underscore the injury and violation of the rapes of Plaintiffs.
a. Anal as opposed to vaginal rape has the "potential in some respects to do more physiological damage than vaginal rape largely because the anal sphincter isn't able to expand in the same way the vagina is able to expand." (Caddy, Pg. 1254). Hence, the necessity, on a routine basis, for rectal examinations obviously is a standard process

utilized in investigating anal rapes. This did not occur at GCI even though the clinic was equipped with rape kits by the Palm Beach County Sheriff's Office. (Peters and Turner).
b. The use of a weapon by the assailant with the attending threat of possible death if submission does not occur tends to increase the psychological trauma manifested from the rape.[38] (Caddy, Pg. 1253-54)
c. Multiple or gang rapes by numerous assailants elevates the "overall sense of total lack of control" and "almost inevitably will escalate the level of trauma experienced." (Caddy, Pg. 1256).[39]
d. Cross racial rape (i.e., black assailant — white victim), at least as to the research relating to women, tends to cause more trauma and violation than if the victim and assailant is one of the identical race. (Ibid. Pg. 1258).
e. Rape occurring in an institution such as GCI provides less positive support services than if the rape had occurred outside of an institution. (Caddy, Pg. 1259-61). This is exacerbated by the negative rather than positive consequences of the reporting of rape within a prison. (Swanson, Pg. 151) ("Admitting of a rape puts at risk the inmate being labeled as involved in homosexual activity which may in fact put him in more jeopardy of the reoccurrence of that event.").
E. THE INDIVIDUAL PLAINTIFF'S CASES
1. DAVID ALDRED
122. David Aldred, 25, was found by Dr. Caddy to be suffering from post traumatic stress disorder as a result of his 689*689 being raped by black inmates at GCI[40] (Caddy, Pgs. 1185-1186). Aldred arrived at GCI July 20, 1984. Immediately upon leaving the van, he saw 150 to 200 mostly black inmates pressing up to the fence and arguing with each other: "He's mine." "No, Nigger, I saw him first." "No, he's mine." (Aldred, Pg. 893). Aldred received no orientation at GCI other than an assignment to B-Dorm (Ibid., Pg. 894).
123. The jeering at the fence presaged Aldred's being raped the second night he was at GCI. As he began to shower by himself, placing the washcloth to his face, he was hit aside the head, fell against the wall, and was thrown to the floor, face down. His arms were stretched out on either side. Someone grabbed Aldred by the hair and raised his head up to stick a knife beneath his throat, and told him in a voice that he recognized as belonging to a black: "If you open your mouth or holler, you will die." Aldred's legs were then spread and he was entered anally by either two or three inmates while the knife was held to his throat (Ibid, Pgs. 808-809). The episode took 15 to 20 minutes (Ibid., Pg. 810). Aldred experienced a burning, excruciating pain. He felt like he was being torn apart (Ibid., Pg. 816). When his attackers had finished with him, they told him not to say anything (Ibid., Pg. 810). Aldred was bleeding from the rectum (Ibid., Pg. 816). For a week, a sensation reminiscent of the rape returned each time Aldred had a bowel movement.[41] (Ibid., Pg. 817).
124. After borrowing two knives and making an unsuccessful 45 minute foray throughout the dormitory looking and listening for any assailant who might be bragging about what had

just happened, Aldred went to the dormitory officer and told him he had been raped (Ibid., Pg. 813). The dormitory officer told Aldred to return to his bunk, that the officer would take care of it. Although Aldred said he had been raped, the officer did not arrange for him to receive a medical or rectal examination (Ibid., Pgs. 812-813). After the shift changed at midnight, Aldred asked a new dormitory officer what was happening about Aldred's reported rape: the officer responded that he did not know what Aldred was talking about (Ibid., Pg. 814). The next day he reported his rape to a lieutenant. He said he did not know the identities of his assailants. He asked for protective custody. The lieutenant refused Aldred protective confinement. He told Aldred words to the effect of, "You got to start being a man sometimes," (Ibid., Pg. 815).
125. Although there is no Superintendent's Monthly Report to Regional Director for July 1984 included among Defendants' Exhibit 14, the one of the preceding month reflect an end-of-June population of 851 inmates and showed that 219 of the 235 authorized and established positions were filled. Superintendent Turner reported: "Inmate and staff morale continues to be good." See, D.Ex. 14. It is unknown whether Aldred's rape was reported as a sex assault on the July report, although it appears unlikely. The Court has been furnished with no written report of the rape by either the Plaintiffs, whose counsel represented that all pertinent documents concerning Aldred were contained in Exhibit 13, nor Defendants.
690*690 126. Aldred was transferred to the Reception and Medical Center (RMC) for previously scheduled dental surgery (Ibid., Pg. 817). After the surgery was complete, Aldred said he spoke with a psychologist and told him the best that Aldred could what had happened at GCI, told him that Aldred needed help, and got the response that there was nothing the psychologist could do (Ibid., Pg. 819).[42]
127. Informed he would have to return to Glades, Aldred slashed his wrist with a razor blade. Dr. Caddy, while discounting it as a suicidal gesture that was probably an attempt largely to get attention, characterized it nonetheless as indicating clearly a grave state of distress (Ibid., Pg. 1171).
128. Upon arrival back at GCI, Aldred immediately checked into protective confinement until he was transferred nine days later (Ibid., Pg. 820).
129. As a result of the violent sexual attack that Aldred experienced at Glades, and the general flavor of his emotional state at the time, Aldred reported to Dr. Caddy that today he really doesn't trust anybody. He engages in almost a hypervigilant activity much of the time, and there is both a paranoid and phobic quality to his responding with respect to black males. He is very, very angry and continues to carry that anger hardly below the surface today. He goes everywhere that he possibly can with a weapon, which he reports never having done before the rape (Caddy, Pg. 1172). Aldred's sense is one of shame, being violated, almost uncontrolled anger and rage, and it seems to be distributed somewhat generally to black males, not simply specifically to the people who raped him. He classically demonstrates the profile of a rape victim, without any opportunity to engage in a therapeutic process (Ibid., Pg. 1173).
2. RONALD LEE DURRANCE

130. Ronald Lee Durrance, a 27 year old father of two, had assumed by March, 1984, a role that Dr. Caddy characterized as "somewhat of a social worker" who informed transient inmates who passed through his dormitory at GCI of dangers of theft that they faced (Caddy, Pg. 1221). Durrance's adopted role at GCI appears especially benign when viewed against the backdrop of his earlier years in prison: he became a member of a gang, "The Omens," at DeSoto Correctional Institution in 1977 (Durrance, Pg. 518); he vended marijuana cigarettes at Florida State Prison in 1977, and was caught with 17 of them (Ibid, Pg. 519); he was disciplined at one work release program in 1981 for drinking and at another for lying to a staff member about his paychecks; he was convicted in 1983 of a burglary committed while on work release (D.Ex. 23). Notwithstanding such a past, however, Durrance is a strongly built man whose reporting to Dr. Caddy, as well as his prison file, revealed no difficulties at GCI prior to the incident of March 17, 1984 (Ibid), (Caddy, Pg. 1221).
131. Durrance reported to Caddy that he felt that the officers at Glades Correctional Institution seemed to have no control over the inmates or chose to exert none (Ibid). The institution at the time had filled 230 of its 235 authorized staff positions (D.Ex. 14, Superintendent's Monthly Reports to regional Director, Report for March, 1984). Defendant R.V. Turner had noted that: "Staff and inmate morale is good. No major problems to report." (Ibid).
132. On the night of March 17, 1984 (Durrance, Pg. 444), two black inmates known to Durrance as Willie Dock and Bull told him to cease warning the transients (Ibid, Pg. 446). Later that night another black inmate, J.R., said he wanted to speak with Durrance. Durrance walked with J.R. to his bunk, the passageway next to which was obscured by having a blanket hung down from the top bunk. When Durrance stepped between the bunks to talk, Bull grabbed him by the neck (Ibid, Pg. 451). 691*691 Willie Dock was there, too, with a knife. So was another inmate called Bone, also with a knife, and a fifth inmate, Bean (Ibid, Pg. 452). Willie Dock said, "Pussy cracker, if you holler, I'll cut you." He placed the knife to Durrance's neck and Durrance was dragged from between the bunks and into the shower (Ibid, Pg. 453).
133. In the shower, Durrance was thrown to the floor. As Bean knelt on Durrance's left shoulder and J.R. held a knife so that Durrance could see it, the others snatched off Durrance's blue prison pants and his underwear (Ibid, Pg. 456). They wrapped Durrance's pants around his neck and face (Ibid, Pg. 458). The first of the inmates to rape Durrance entered him forcefully through the rectum. Durrance wanted to scream, both because of the pain and because he could not believe what was happening (Ibid, Pg. 459). He was penetrated three times (Ibid, Pg. at 460). The ordeal lasted 35 to 40 minutes. When the rape was over, J.R. told Durrance, "Don't go to the wicket, pussy cracker. If you go to the wicket, you're through." (Ibid, Pg. 461). Durrance put his underwear back on, though not his pants, stood in the shower and cried (Ibid, Pg. 462). Although he flirted with the idea of revenge, Durrance calculated that he could not fight all of his attackers: he climbed back into his bunk, crying (Ibid, Pg. at 464). He was afraid to tell the dormitory officer about the rape because he felt that the dormitory officer would not do anything and that the other inmates would have heard Durrance complaining about which inmates had raped him. He felt that he would have to name names to get into protective custody because of what he supposed was the "good cause" requirement (Ibid, Pg. 465). He lay awake all night (Ibid,

Pg. 467). He watched his attackers lay awake on their bunks, smoking marijuana and drinking a prison made wine called "buck" (Ibid, Pg. 468).
134. When the shift change came, Officer Dixon came on at midnight (Ibid, Pg. 478). Durrance was afraid to tell Dixon because he had seen money passed between inmates and Dixon and had seen Officer Dixon deliver a pint of whiskey to an inmate (Ibid, Pg. 471).
135. In the morning, Durrance went to his job at the auto paint and body shop. His rectum was in pain, a burning sensation. He did not have a bowel movement until the next day. Notwithstanding the pain. Durrance was too embarrassed to seek medical attention (Ibid, Pg. at 472).[43] The pain, which Durrance described to Dr. Caddy as lasting several weeks, also continues in the form of lower stomach discomfort (Ibid, Pg. 1224).
136. Durrance did not return to work that afternoon. Instead, he went to see a lieutenant, but still could not bring himself to admit he had been raped. He was afraid that if he told, other inmates would find out (Ibid, Pg. 475). When he sought protective custody without saying why, a Lt. Slater told him, "The Confinement is full. I'm not putting you in confinement, and, look, go out, be a man; go out and learn to be a man." (Ibid, Pg. 476). Durrance ceased reporting to his job assignment because he knew that if he did not go to work, eventually he would be locked up in confinement and thereby be off the compound (Ibid, Pg. 477).
137. One of Durrance's attackers, Bone, he thinks, approached Durrance several days later and told him that he would either have to choose to be someone's sexual partner or to pay Bone protection money to avoid being raped again. Durrance stalled, continuing to fail to report for his work assignment (Ibid, Pg. 478). The unexplained refusal to work resulted in Durrance's receiving a disciplinary report and being locked up in administrative confinement (Ibid, Pg. 479). Although it was Durrance's first disciplinary report for refusing to work, the official who reviewed it did not want to hear any explanations (Ibid, Pg. 480). At the expiration of his 15 day confinement sentence (Ibid, Pg. 481), Durrance was assigned to a bunk in D. dormitory, about which he had heard that there 692*692 was a lot of pressure there to engage in homosexual acts; he refused to go and was placed back in confinement (Ibid, Pg. 482).[44]
138. While awaiting a hearing on his refusal to go to D dorm, Durrance told acting Major Barrett that he had a problem about owing another inmate money and needed to be locked up in protective confinement. Barrett told him to write out a statement, which he did (Ibid, Pg. 484). Notwithstanding the explanation, Durrance lost 45 days gain time for refusing to go to D-Dorm. See, D.Ex. 23 (Disciplinary Report reflecting hearing April 13, 1984).[45]
139. Durrance testified that he entered a statement that "I owed out a great deal of money, and I also entered the names of Willie Dock and Bull as the two people I owed, in hopes that maybe by me saying that I owed them, and it was felt that I was in danger, that they may be reprimanded somehow by me doing that."[46]
140. Durrance never was raped prior to this incident, nor afterward. Nor has he engaged in any homosexual activity before or since (Ibid, Pg. 487). Nonetheless, and notwithstanding his initial concealment of the rape from prison officials, word of the rape circulated among

prisoners and followed him to Polk Correction Institution, to which he was transferred in July, 1984 (Ibid). An inmate known as "Black" approached Durrance (Ibid Pg. 488) and told him that Durrance would either pay protection money to Black or Black was told to tell other inmates at Polk that Durrance was a "fuck boy" at GCI (Ibid, Pg. 489). On November 1, 1984, Durrance checked back into protective confinement at Polk, once again citing money owed as the reason (Ibid, Pgs. 490-491).
141. Durrance was transferred to Hendry Correctional Institution where, three weeks after his arrival, Bone, one of the assailants, approached Durrance and told Durrance that he was either going to have to pay Bone money or be somebody's "boy." Once again, Durrance checked into protective confinement (Ibid, Pg. 501). He said there was a contract on his life that had been let at Florida State Prison (Ibid, Pg. 502).
142. September 27, 1985, Durrance was transferred — back to Glades Correction Institution (Ibid). He immediately requested protective custody, which he did not get until being required to go to the mess hall for lunch (Ibid, Pg. 503). At this point, he finally told a correction officer at GCI, Lt. Minor, that he previously had been raped (Ibid, Pg. 505). Lt. Minor memorialized the complaint in a Report of Administrative Confinement dated September 27, 1985 (D.Ex. 23). He remained in protective custody at GCI until bing transferred in November 693*693 to Dade Correctional Institution (Durrance, Pg. 505).
143. The residue of the rape for Durrance, in addition to the gain time he has lost, created an adjustment disorder with mixed emotional features (Caddy, Pg. 1225). Emotionally, he reports being essentially closed and more reserved than before. He no longer seeks out people to be friendly, as he did before. He watches everybody and trusts no one. His greatest reported fear is telling his son about the rape (Ibid, Pg. 1225).
3. STEVE HERMAN BRONSON, JR.
144. Steve Bronson, a white, bisexual transvestite, who answers also to "Nancy Sue," arrived at GCI in November, 1981 (Bronson, Pg. 689) with a Department of Corrections file rife with reference to his sexual preference and affectation. See, Plaintiffs' Post Trial Submission of Excerpts from Plaintiffs' Records. Subsequent to his arrival, he encountered a black inmate gang leader named Mack, who trafficked in drugs, protection, gambling, alcohol, and homosexual prostitution. He met Mack while the two of them were in a trailer with others watching a video cassette recording that depicted vaginal and anal intercourse. The movies were shown on weekends as part of the prison recreation program (Bronson, Pg. 691). Mack pushed a knife in Bronson's side and forced him to masturbate Mack (Ibid, Pg. 692). Despite Bronson's previous consensual relations with other males, he objected to being forced to masturbate Mack (Ibid, Pg. 694). Mack initially demanded that Bronson be one of his "girls," but settled for Bronson's agreement to pay him protection money and serve as a lookout during both card games and sexual encounters between the two other "girls" and guards (Ibid, Pg. 692). Bronson thrice observed guards being fellated by the homosexual prostitutes, once in the movie trailer, once in a dorm and once in the equipment shack on the recreation field (Ibid, Pg. 693). Another of Bronson's task for Mack was to masturbate inmates who paid Mack (Ibid, Pg. 696). To accentuate his femininity for this assignment, Bronson would dress in a tee-shirt rolled up above his midriff, shorts, and sandals (Ibid, Pg. 697). The only time he was required to wear his regulation uniform was to

go to either the visiting park or the chapel (Ibid, Pg. 697) notwithstanding that he had once sued while incarcerated at another Florida prison to set aside a policy against his wearing women's clothes (Ibid, Pg. 721).
145. In late June, 1982, one of Mack's two male homosexual prostitutes was transferred out and Mack demanded that Bronson take his place. After Bronson refused, he was waylaid by two men in Mack's company as he was walking across the recreation field at 9 a.m. or so on a sunny Saturday morning. A rag was stuffed in his mouth, his shorts and underwear were removed and the handle of a baseball bat was shoved up his rectum, pushed a couple of times and pulled out. Bronson felt as if his rectum was being torn. When the bat was pulled out it was very painful. Bronson tried to scream, but could not. Mack told Bronson that the baseball bat was only a sample of what he would do if Bronson did not become one of his prostitutes. The rectal bleeding continued for three days (Ibid, Pgs. 698-699).
146. Bronson did not go to the clinic. He had been warned that he could be killed if he reported the incident to anybody. He believed that threat whole heartedly (Ibid, Pg. 700). He had witnessed guards giving money to inmates, Mack's buying alcohol from guards and Mack's buying drugs from guards (Ibid, Pg. 701). The drugs sold to Mack by the guards included marijuana, which Bronson recognized by seeing it as it was packaged for resale (Ibid, Pg. 702) and a white, granular substance with lumps that Mack said was cocaine and that Mack sold to other inmates when they asked for cocaine (Ibid, Pg. 703). Bronson told Dr. Swanson that black inmates ran GCI, (Swanson, Pg. 77). He also told Swanson that the guards seemed scared of inmates (Ibid, Pg. 78). He told Swanson he was scared to ask for protective confinement (Ibid, Pg. 79). He did not have the sense that there was anybody that he could go to (Caddy, Pg. 1191). When he finally 694*694 did check in, he told Swanson he found it to be extremely punitive (Swanson, Pg. 81).
147. Bronson remained quiet about the incident. To avoid either a repeat or the alternative of forced prostitution, he checked into protective confinement immediately after a July 4, 1982 visit from his wife and daughter. Rather than inform on Mack, he used the ruse of family problems instilling in him an urge to escape (Ibid, Pg. 710). He found his one-bed protective custody cell with two other inmates already there (Ibid, Pg. 711). The electric light was not working. The only times he was allowed outside was for three, three to five minute showers a week. There was no access to the law library. There were no canteen privileges. There was no smoking. The food was cold and in smaller portions than given to the inmates in population. The screens were either non-existent or had holes (Ibid, Pg. 712). Mack would come by the windows and tell Bronson to come out or he would send somebody in to harm Bronson (Ibid, Pg. 714). Superintendent Turner, however, never came back to the confinement area during the period that Bronson was there, from July 4, 1982 through August 25, 1982 (Ibid, Pg. 715).
148. Bronson was one of 80 persons who entered administrative confinement in July, 1982: the administrative confinement area had 34 inmates at the beginning of the month, 24 at the end. In June, when the baseball bat incident occurred, it appears as if 241 of the 270 authorized and established staff positions were filled.[47]
149. The psychological experiences that Bronson had at GCI simply represented a further extension of his increased sensitivity, his feelings of nervousness and his feelings of

powerlessness (Caddy, Pg. 1190). But while Dr. Caddy acknowledged that it would have been equally quite inappropriate to try to tease out the specific elements that relate solely to the incidents surrounding the events at GCI, he did feel it important to observe that at GCI Bronson felt far more vulnerable than at several of the other prisons in which he had been placed, largely because he perceived the facility to be somewhat more lawless (Ibid, Pg. 1191). Dr. Caddy's diagnosis of Bronson was as suffering an adjustment disorder with mixed emotional features, together with an atypical personality disorder and a sexual identification disorder; he could not attribute specifically what part of the disorder is a direct function of the incident at Glades (Ibid, Pg. 1193).
4. MARTIN SAUNDERS
150. Martin Saunders was convicted of sexual battery, for which he got a 35 year sentence; possession of marijuana, for which he got a concurrent 5 year sentence; and aggravated assault, for which he received a consecutive 5 years, for a total of 40 years (Saunders, Pg. 533). He is 5 feet, 7 inches tall and has an obese buttocks, a physiognomy that both he and and Plaintiff Anthony LaMarca, who shares it, say is attractive to imprisoned homosexuals (Ibid, Pg. 537), (LaMarca, Pgs. 948-949). How attractive Saunders was to the black inmates at GCI became uncomfortably clear to him as he witnessed a "great multitude" queue up near the area where the prison van unloaded him at GCI in February, 1983; he recalls feeling like being in a meat market (Saunders, Pg. 536). Although he earlier had been derided as a homosexual by one inmate shortly after having arrived at DeSoto Correctional Institution, he attacked that inmate to rid himself of that label (Ibid, Pg. 534).
151. Although he received no orientation from the prison administration at GCI (Ibid, Pg. 539), he received an aggressive orientation the evening of his arrival in A-Dormitory; blacks approached this young white inmate offering friendship that he felt, based on the time he had spent in prison already, was a prelude to a homosexual advance (Ibid, Pg. 540). Two in particular, James Roper and Larry Pryor, were persistent in their advances and struck Saunders wherein he rebuffed them 695*695 (Ibid, Pg. 541). Once, following a visit with his family, Saunders returned to the dorm where Pryor, armed with a knife, demanded that Saunders give Pryor the $5.00 his parents had just given him during the visit. Saunders complied then, as well as on a second occasion when Pryor demanded money (Ibid, Pgs. 546-547). On another occasion, Pryor and Roper "creeped" up behind Saunders as he watched television and each punched him on a side of his head (Ibid, Pgs. 549-550). They took his property and threw it in the shower (Ibid). He knew it was Roper and Pryor because he spotted a towel of his hanging from one of their bunks (Ibid, Pg. 551).
152. Saunders complained to a number of correctional officials. The officers took the approach that Saunders should be a man, should deal with his problems and should hit Pryor and Roper so that would leave him alone (Ibid, Pg. 548). According to Saunders' unrebutted testimony, one official, William Knight, Saunders' classification officer, took the opportunity of Saunders' first visit to press himself against Saunders from behind and to run his hands down Saunders' arms. Saunders interpreted this as a homosexual advance (Ibid, Pg. 544).
153. On or about March, 1983, Saunders was using a small bathroom in the classification building. He was sitting on the commode with his trousers down when Roper and Pryor

entered the room (Ibid, Pg. 551). The two told Saunders to keep his pants down (Ibid, Pgs. 551-552), and that they were going to "get theirs." It is a very narrow bathroom and Saunders was directed to stand over the commode, facing the wall.[48] As Roper lubricated his penis with Vaseline, Saunders attempted to bolt from the room, but was stopped and told that he would be killed if he tried again to escape (Ibid, Pg. 552). Roper entered Saunders. Saunders could tell that Roper ejaculated because of the groans he made. When Roper finished, Pryor followed (Ibid, Pg. 553). Pryor also ejaculated inside Saunders. The incident took about 25 minutes to a half hour. The two of them left the bathroom laughing about how, "That's some good pussy." (Ibid, Pg. 554).
154. After sitting on the recreation field and crying alone for about an hour, Saunders angrily went in search of his rapists. When he found Pryor he began a fight. After the fight was broken up, Saunders, according to his unrebutted testimony, told Lt. Pipta, that Pryor and Roper had raped Saunders (Ibid, Pg. 556). Saunders got the impression that Lt. Pipta did not believe him. Although Lt. Pipta had Saunders taken to the clinic for an examination concerning the fight, there was no rectal examination done (Ibid, Pg. 557). The officer who was escorting Saunders said, "that's not what we're here for." Saunders was put into administrative confinement. In neither Saunders' file, pertinent excepts of which are include in P.Ex. 29, nor in Pryor's file, pertinent excerpts of which are included in P.Ex. 26, is there any record of either the report of the rape, of the fight, of the physical examination of Saunders, or of Saunders' subsequent confinement. Saunders' unrebutted testimony is that Pryor and Roper were not confined concerning the rape. There were no disciplinary reports concerning the fight (Ibid, Pg. 561). Lt. Leo Peters, the institutional investigator, testified that no one informed him of the alleged rape nor instructed him to investigate it.
155. Saunders, who reported experiencing a "very mushy" stool during his first bowel movement after the rape (Ibid, Pg. 559), was jailed as the third person in a two 696*696 person cell. The cell was roach infested and there was a thick mildew on the walls. Saunders was there for three to four days (Ibid, Pg. 561).
156. Upon his release from confinement, Saunders acquired a transfer to C-Dorm by giving up a prestigious inmate job as a steward in the staff dining room (Ibid, Pg. 564) and taking a job cutting sugar cane (Ibid, Pg. 565). In C-Dorm, however, he encountered an inmate known as Charles Street, who harassed Saunders sexually and kicked him in the groin. See, P.Ex. 29, Section B. Street slept next to Saunders and told Saunders that he was going to "get" him one night. Saunders was fearful that Street would succeed in any attack because his bunk was obscured from the view of the dormitory officer (Ibid, Pg. 569) by towels that would be draped from the top bunk to form a sort of tent (Ibid, Pg. 570). Saunders felt someone who was thinking about killing him at night would feel that they could get away with it and, therefore, would be further motivated to harm him (Ibid, Pg. 570). The only way Saunders could see the guard was to hang his head over the bed perimeter (Ibid, Pg. 571). If Saunders were in his bed, the guard could not see him (Ibid, Pg. 572).
157. Saunders' fear of death upsets him greatly (Caddy, Pg. 1207), and he testified that his nightmares about death always involve a stabbing (Saunders, Pg. 577). Notwithstanding Saunders' being characterized by the Plaintiffs' own expert, Dr. Glenn R. Caddy, Ph.D., as being not only one of the most intelligent, but also most manipulative of the Plaintiffs

(Caddy, Pg. 1198), Caddy testified that Saunders reports some of the common experiences of people who have experienced rape: an immediate sense of worthlessness but with extreme anger; a fear that in some respects he was trash for having allowed this to happen (Ibid, Pg. 1199). Dr. Caddy, whose experience in dealing with manipulative personalities include numerous clinical encounters with alcoholics and drug users, nonetheless placed credence in Saunders' testimony that he had been raped and felt that Saunders would have been unable to consciously mimic the affect of a rape victim (Ibid, Pg. 1313). Dr. Caddy's diagnosis of Saunders is that of post traumatic stress disorder (Ibid, Pg. 1207).
158. During his imprisonment at GCI, Saunders told his mother repeatedly that he was in fear of his life (Sally Saunders, Pg. 658). Mrs. Saunders attempted numerous times during Saunders' incarceration at GCI to telephone Superintendent Turner. See, P.Ex. 12, Section A. She was only able to get through to him about three times, however (Sally Saunders, Pg. 669). During one of those conversations, subsequent to Saunders having joined as a Plaintiff in this action, Turner laughed and said to Mrs. Saunders, "Do you know how many people have tried to sue me?" (Ibid, Pg. 660).
159. Saunders checked back into protective confinement November 10, 1983. See, P.Ex. 29, Section B. At the time, 220 of the 233 authorized and established staff positions at GCI were filled; Superintendent Turner wrote that "[s]staff & inmate moral (sic) appears high. Gov. Graham's visit was an important occasion. With overall unemployment down we are beginning to again experience significant staff vacancies." Saunders was one of 76 persons who went into either administrative or protective confinement during the month. His assault by Street, however, does not appear to have been reported as either an Unarmed Assault Where Person Assaulted is Injured, or as an Assault to Commit a Sex Act, no incidents having been reported in either category on the Superintendent's Monthly Report to Regional Director. See, D.Ex. 14.
160. Saunders found the conditions the same when he checked into protective confinement as those that existed when he was in confinement following the fight with Pryor (Saunders, Pg. 574). Notwithstanding the strictures of § 33-3.082(4), Florida Administrative Code, and GCI's Institutional Operating Procedure 83-40, which require that treatment of inmates in Protective Confinement be "as near that of the general population as assignment to protective confinement as the housing area will 697*697 permit" (P.Ex. 3, Flap F 2), there was no literature, no canteen; in short, no privileges (Saunders, Pg. 574). Saunders never saw Superintendent Turner during Saunders' stay in protective confinement (Ibid, Pg. 576). That stay ended when Saunders' was transferred to Avon Park Correctional Institution — at the order of a prison inspector (Ibid, Pg. 576).
5. BILLY JOE HARPER
161. Billy Joe Harper is an unusually boyish-appearing 25 year-old inmate serving a 15-year sentence for a sexual battery committed in 1985 following an earlier conviction for armed robbery (Harper, Pg. 732). His incarceration within the Department of Corrections has been characterized by incidents in which contemporaneous reports reflect that he had complained of sexual assaults and/or harassment and had requested protective confinement for those and other reasons.[49] The other assaults of which he is quoted as complaining all occurred prior to Harper's arrival at GCI on December 31, 1981.

162. About two weeks after his arrival, Harper was raped at Knifepoint in his top bunk in DDormitory about 2:00 a.m. by a man whom he identified as inmate Levy Fisher (Harper, Pg. 736). Fisher held a knife to Harper's throat and told him that if he made a sound, Fisher would cut Harper's throat (Ibid, Pg. 738). Fisher pulled off Harper's underwear and lifted Harper's leg so he could enter him anally (Ibid, Pg. 739). Harper could not see the correctional officer who was supposed to be on duty (Ibid). After Fisher was finished, he told Harper that if Harper told anyone, Fisher would kill him (Ibid, Pg. 740).
163. Harper testified that he checked into protective custody the morning after the rape, telling officials that he wished to do so. He said two other inmates checked in with him. One of the inmates was Larry Turly. Larry Turly told the officers that they were checking in to get away from Fisher (Ibid, Pg. 741).
164. About three days after the three inmates checked in, Superintendent Turner called them to the office of the confinement area (Ibid, Pg. 745). Former inmate Greg Zatler also was called to the meeting (Ibid, Pg. 746). Zatler testified that "Superintendent Turner asked us why we were in confinement, and we told them because of Fisher." Turner replied, according to Zatler, "No, you couldn't be in here because of this inmate. This is one of our best inmates." (Zatler, Pg. 795). Harper recalls telling Turner that Fisher had raped him, to which Turner replied that Harper was lying and could rot in his cell (Harper, Pg. 746). Harper could not understand why Turner "wasn't there to get on Levy Fisher, he was there to get on us." (Ibid, Pg. 747).
165. No documentary evidence has been introduced to establish that either Harper or Zatler was in protective confinement in January 1982. However, corroborative of their joint testimony that they were concurrently in protective custody are letters written February 21 and 26, Zatler to Carl Kirkland, a prison inspector, concerning property that he had lost upon checking 698*698 into protective custody February 11, 1982 (P.Ex. 5). Among the papers submitted by Defendants as Composite Exhibit 14 (Page 34) is a Department of Corrections Daily Record of Segregation showing that Billy Joe Harper was in "P.C." March 1, 1982 through March 8, 1982. Page 34 of Defendants' Exhibit 14, is a Disciplinary Committee Visit sheet that reflects a visit to Harper March 2, 1985 by a committee that included "Floyd, Turner, Arline" and resulted in a notation: "Continue A/C—Attitude poor."
166. Harper remained in protective custody until another inmate, Andrew Jackson, enticed him back on the compound with the proposition, voiced through a window of the confinement area, that Jackson would protect Harper on the compound for $10 a week (Ibid, Pg. 744). Lt. Leo Peters testified that he later in 1982 sought out Harper as a witness against Jackson in a criminal prosecution for extortion. See also, P.Ex. 20, Section B.
167. Dr. Caddy found Harper to be significantly depressed and exceedingly angry (Caddy, Pg. 1229). He diagnosed him as suffering from an adjustment disorder with mixed emotional features (Ibid). Knowledge of the earlier purported sexual relations would not have changed the basic diagnosis as to Harper. While such knowledge would influence Dr. Caddy's judgment about the possible apportionment, it would additionally raise the question of preexistent elements that were exacerbated at Glades rather than provoked solely at Glades. Harper's additional, non-rape history did not bear on the legitimacy or veracity that Harper offered with respect to the matter of rape, according to Dr. Caddy. However, it did or

could bear on the issue of the extent to which Harper now — in retrospect — seeks to focus much of his experiences in protective custody on the question of rape as opposed to other dynamics that also may have been operating within the man (Ibid, Pg. 1291).
168. As to the possibility of Harper's having been raped before Glades, assuming that rape is a statistically remote occurrence, the issue presented by the second rape is not simply an additive probability, but potentially represents even a more substantial issue because of the credibility question that many others would attribute to the individual, as well as the very special problems that the individual, himself, would have faced in the everyday world. Dr. Caddy's view is that a person who has been raped elsewhere, and then is raped at Glades, is in more need of assistance than he would have been if he had been raped on one occasion (Ibid, Pgs. 1301-1302).
6. EDWIN JOHNSON
169. Edwin Johnson arrived at GCI in February 1983 (Johnson, Pg. 1068). About the fourth week after arriving, Johnson received a visit from his mother. Sensing a large crowd of black inmates who he feared might attempt to rob him since there was only one guard patrolling the compound (Ibid, Pg. 1070) Johnson took a detour back to his dormitory, but was accosted 15 feet from the door by a black inmate with a knife who told him that he, Johnson, had one week to either "find you a daddy" or go into protective confinement (Ibid, Pg. 1078).
170. When Johnson told his classification officer about the ultimatum, he was told to either go into protective confinement or get a pipe or a knife and fight back. Johnson did not want to fight back because he was nearing parole and was attempting to overcome an earlier eight-year extension he had earned (Ibid, Pg. 1079). Johnson chose to check into protective confinement (Ibid, Pg. 1084). He shared a one-man protective custody cell with two other men (Ibid, Pg. 1085). There were no privileges for inmates in protective custody (Ibid, Pg. 1088). During this time there was no gymnasium access for protective confinement inmates (Ibid, Pg. 1089). There were no programs, such as education, that could have assisted Johnson toward obtaining a parole (Ibid, Pg. 1088). Thus, on the advice of the lawyer representing him in connection with the parole, he checked out of confinement after two and one-half months (Ibid).
171. Johnson stayed out of confinement for about two weeks until he was bloodied 699*699 in a fight with inmates who stole some of his property; the fight occasioned his being taken to be interviewed by Lt. Lawson (Ibid, Pg. 1094). Johnson declined to name his attackers because he was afraid to be a "snitch" (Ibid, Pg. 1095). The next day, one of his attackers, who stood at about 6 feet, one inch tall, and weighed 225 pounds again attacked Johnson, who is 5 feet 11 inches tall and weighs 140 (Ibid, Pg. 1096). After that fight, Johnson sought a dormitory change from Lt. Lawson, but was denied it. He then checked back into protective confinement for three days (Ibid, Pg. 1097).
171a. By this point, Johnson had acquired a reputation as a weakling because he had twice checked into protective confinement (Ibid, Pg. 1099). Five inmates in the dormitory to which he was assigned put a blanket over him and beat him. Johnson checked back into protective confinement the next day (Ibid, Pg. 1100). The conditions and lack of privileges

were the same, except that the confinement inmates were allowed to go to the gym (Ibid, Pg. 1101). The gymnasium party was composed of both administrative and protective confinement inmates (Ibid, Pg. 1102). As they returned to the confinement area, one of the administrative confinement inmates hit Johnson in the head with a metal stool (Ibid, Pg. 881).[50] Johnson received five stitches and was hospitalized for two weeks. He returned to the protective confinement cells where he waited until the prison inspector ordered Johnson and Plaintiff Saunders transferred.
172. The exact dates of Johnson's presence in protective confinement or within the hospital are impossible to pinpoint. No incident reports concerning his alleged injuries, no administrative confinement reports and no medical records have been presented to the Court, notwithstanding Plaintiffs' counsels' having subpoenaed all of Johnson's records and representing to the Court that they had furnished all relevant records. Neither has the Defendants' counsel offered any records that conflict with Johnson's testimony.
7. WAYNE JOHN EPPRECHT
173. Wayne Epprecht, who is presently serving a sentence of life plus 130 years at Avon Park Correctional Institution, previously was incarcerated at GCI under an earlier commitment (Epprecht, Pg. 627). In February 1981, after having been visited by his sisters and having received $25.00 in cash from them, he returned to his dormitory, paying off various debts along the way. By the time he arrived, he had paid out all but 26 cents. This paucity angered two black inmates who were waiting in the dorm to rob him (Ibid, Pgs. 628629). One of them hit him in the face with a pipe. Epprecht did not see any correctional officers in the wicket at the time of the assault (Ibid, Pg. 629).
174. Epprecht went to a mirror and saw that the left side of his face was stoved in and blood was running out of his nose (Ibid, Pg. 630). He encountered an officer outside of the dorm. The officer took him to the prison hospital, where a nurse said Epprecht needed to go to Glades General Hospital (Ibid, Pg. 631). After several days at Glades General, Epprecht was transferred in a van with other prisoners to the Reception and Medical Center at Lake Butler. During the eight to ten hour trip he was in pain and given nothing to drink in connection with his liquid diet (Ibid, Pgs. 634-635). After surgery, Epprecht was returned to GCI (Ibid, Pg. 638), where he saw the two inmates who attacked him (Ibid, Pg. 650). They told him they would leave him alone if he would not say anything (Ibid).
175. Epprecht was asked several times what had happened to him (Ibid, Pg. 633), but he never had identified his assailants to officials because he felt it was safer not to "snitch" (Ibid, Pgs. 630-631). Superintendent Turner, however, was not one of those officials who inquired of Epprecht. While at GCI, Epprecht feared for his safety in a different manner than he had while serving time in other Florida prisons (Ibid, Pg. 700*700 645). At the other prisons, it seemed to Epprecht that an inmate could get help more quickly than at Belle Glade (Ibid, Pgs. 645-646).
176. In February, 1981, the time at which Epprecht was attacked, 222 of the 266 established and authorized staff positions were filled. Superintendent Turner reported, "we are currently holding 35 positions vacant at this institution to attempt to keep our salary allocation in good shape." (D.Ex. 7). The prison population ranged from 801 at the

beginning of the month to 787 at the end. Superintendent Turner noted that "[t]he increasing number of inmates demanding protective confinement takes up most of the available space." (Ibid).
177. Epprecht's psychological scarring was less than some of the other plaintiffs. Dr. Caddy diagnosed him as suffering from an adjustment disorder that was rather moderate in nature, was not severe, with some mixed emotional features (Caddy, Pgs. 1148-1149). However, according to Alan M. Wagshul, M.D., a Board certified neurologist, after examining Epprecht and reviewing his medical charts, Dr. Wagshul reports that Epprecht is suffering both reparable and irreparable injuries. The history of left facial trauma, with a fracture of the zygomatic arch and residual palpable deformity, is consistent with the sensory deficit in the area of the facial trauma. In layman's terms, Epprecht suffers from a numbness that forever will be exacerbated by prolonged chewing or changes in the weather and, while it can be alleviated by non-addictive drugs, cannot be eliminated. Additionally, Epprecht suffers from probably a temporomandibular joint dysfunction that is consistent with his subjective complaints of headaches and pain upon chewing. While Epprecht has complained of suffering these symptoms since the incident, February 14, 1981, they could be eliminated by an office visit to a dentist for a realignment of his bite (Wagshul).
8. EDDIE COBB
178. Eddie Cobb, the only black among the named plaintiffs, is a 24 year-old former inmate (Cobb, Pg. 764) who was stabbed in the head and arm (Ibid, Pg. 767), January 27, 1984 by fellow inmate Larry Pryor (Ibid, Pg. 765). Cobb received 18 stitches in his head and 12 in his arm at the prison hospital (Ibid, Pg. 768). His arm carries a visible scar, which the Court saw (Ibid, Pg. 767), and there is scar tissue on his head (Ibid, Pg. 768). Since the incident, Cobb experiences pounding, migraine headaches and dizziness, sensations about which he complained to prison health officials at Union Correctional Institution (Ibid, Pgs. 769-770).
179. Although Cobb had a number of fights at Glades in which he arguably could be cast as the aggressor, Pryor was the attacker in this instance (Deposition of Larry Pryor, Pg. 18), (Testimony of Lt. Peters). Pryor, however, was operating with the protection of Lt. William Barrett (Deposition of Larry Pryor). And after Cobb left the hospital, he was taken to administrative confinement (Cobb, Pg. 769), where he remained until he was transferred to Union Correctional Institution March 15, 1984. See, P.Ex. 15, Section C (Department of Correction Daily Records of Segregation for Eddie Cobb from Feb. 6, 1984 to March 15, 1984). Pryor was released before Cobb was transferred (Cobb, Pg. 769), notwithstanding the fact that Lt. Peters' investigation revealed Pryor to have been the aggressor (Testimony of Peters).
180. A review of inmate Pryor's prison file reveals repeated documentation of his assaultive nature. A January 21, 1983 memorandum from the Florida Probation and Parole Commission discusses Pryor's "serious pattern of assaultive-violent behavior." An in-house classification team at GCI November 15, 1983 recommended "transfer of the abovementioned inmate [Pryor] for security reasons." Although a transfer of Pryor to Union Correctional Institution was sought, the transfer request was withdrawn January 29, 1985. See, supra, ¶ 98.

9. MICHAEL GORDON
181. Michael Gordon arrived at GCI in late 1983 or early 1984 (Gordon, Pg. 897). He arrived there the least pre-institutionalized of the named plaintiffs. This was the 701*701 first permanent assignment within the Florida prison system for Gordon. At the time, Gordon, a 41-year-old jeweler who lived in Plantation, had been sentenced to 25 years in prison for credit card fraud. See, P.Ex. 19, Section A. This conviction was subsequently overturned because of incompetence of defense counsel. Gordon v. State, 469 So.2d 795 (4th DCA, Fla.1985). Gordon suffered physically at GCI, perhaps less than any of the other named plaintiffs. He was knocked unconscious once while standing in front of the canteen. (Gordon, Pg. 907). According to x-rays taken three days later, there was no fracture from this injury (Ibid, Pg. 908). His buttocks were burned when inmates who had been drinking "buck" set his polyester underwear on fire (Ibid, Pg. 909); he was hit in the head with a pipe in a robbery in which his mock Rolex watch was stolen (Ibid, Pg. 910).
182. Notwithstanding the fact that Gordon's complaints pale next to those of his co-plaintiff rape victims, Gordon's reaction to life at GCI was such that he lost 100 to 150 pounds (Gordon, Pgs. 916-917), (Caddy, Pg. 1159), and reports that it was the only time in his life when he seriously considered suicide (Caddy, Pg. 1163).
183. While at GCI, Gordon overheard the screams of a homosexual rape (Gordon, Pg. 900), found himself in an environment where blacks controlled a camp where the recreation centered on drug use, drinking and homosexuality (Ibid, Pg. 901), and was was extorted by a guard who one day appeared at the prison with a photograph of Gordon's wife and children (Ibid, Pg. 902). Gordon perceived the entire environment as anarchistic and without any constraints (Caddy, Pg. 1163). His wife reports that he talks in his sleep and yells, that he clearly experiences night terror that awakens him, and that he reports to be dreaming about incarceration at Belle Glade and being attacked and feeling vulnerable (Ibid, Pg. 1164). Gordon is suffering from an adjustment disorder with mixed emotional features, some anxiety, and some depression (Ibid).
10. ANTHONY LaMARCA
184. Although Anthony LaMcarca was never homosexually raped or seriously injured in an assault while he was incarcerated at GCI starting in late 1980 or 1981, his complaints concern the lengths to which he had to go and the conditions he had to endure to avoid such a fate (LaMarca, Pg. 947).
185. First, he escaped on April 13, 1981. According to the Escape and Recapture Report, the reason stated for LaMarca's escape was that he was unable to pay money owed on the compound. LaMarca was threatened by an inmate skilled in the martial arts black belt the morning of his escape that if he didn't begin paying the black belt $25.00 per week beginning that same day, LaMarca "would see St. Peter that afternoon when I come in from work." (Ibid, Pgs. 955-966). An additional six months in the Palm Beach County Jail was added to LaMarca's sentence for the escape (Ibid, Pg. 957).

186. Homosexual solicitation and harassment began upon LaMarca's arrival at GCI in the form of catcalls from a line of black inmates, LaMarca being referred to as a "fat skinny white boy." This term meant that he was a frail youth (150 pounds) with a large posterior, which was sexually attractive (Ibid, Pgs. 948-949). One inmate in particular, Kenneth Storys, informed LaMarca on LaMarca's third day of incarceration at GCI that LaMarca should pick either Storys or someone like him as a "daddy" or he would be unable to live on the compound (Ibid, Pgs. 950-951). LaMarca did not seek protective custody for about a year after his arrival because he was embarrassed to be in this vulnerable position (Ibid, Pg. 994). When he did seek help and identified three inmates who were harassing him, these three inmates were not locked up for investigation. Indeed, following his meeting with officials, the three inmates came to the back door of the canteen and threatened LaMarca by telling him, "We know you snitched, cracker." (Ibid, Pgs. 961-962). Three days later one of the three inmates swung a bat at LaMarca. He complained to Lt. Barrett 702*702 about the situation. Lt. Barrett responded by giving LaMarca a pocket knife. When the inmate attempted to steal some marijuana that LaMarca was "breaking down" on the dormitory floor, LaMarca stabbed the inmate in the hand (Ibid, Pgs. 964-966).
187. At 2:30 a.m., after LaMarca stabbed the inmate, this same inmate along with two other inmates, came to his bunk demanding sex. They inmates carried a bush axe (Ibid, Pgs. 969-971). LaMarca ran to the wicket and sat in front of it all night, clad only in his underwear. No conversation transpired with the guard (Ibid, Pg. 972). The next morning, when LaMarca was found bringing a fiberglass sledgehammer into the dormitory for protection, he was given a disciplinary report (Ibid, Pg. 973).
188. In July, 1981, LaMarca checked into protective custody (Ibid, Pg. 974). Three men occupied a two-man cell. LaMarca had no privileges. When he complained to an officer, he was told to go back to the compound (Ibid, Pg. 975). Four months later LaMarca transferred out of protective custody rather than be transferred to Union Correctional Institution (Ibid, Pg. 976).
F. THE LARRY BROWN INCIDENT: BEYOND TURNER
1. THE RAPE OF LARRY BROWN — THE CONTINUED LACK OF AN ADEQUATE INVESTIGATION
189. Larry Brown is somewhat of an eleventh Plaintiff in this 10-plaintiff case. The only plaintiffs' witness who presently is incarcerated at GCI, and therefore a member of the class seeking declaratory and injunctive relief, he is the only inmate who testified for Plaintiffs who was not himself seeking damages.
190. Brown arrived at GCI in June, 1985, was assigned to A-Dorm without any orientation (Brown, Pg. 839), and by 2:30 a.m. the next day (Ibid, Pg. 840) was ordered at knifepoint by three blacks to get out of his bunk and into one beneath it. He was told to lay down and not to scream (Ibid, Pg. 841). As one inmate held a knife to his throat, another removed his blue prison-issue pants and his undershorts, and penetrated him (Ibid, Pg. 842). He was anally raped five times, a knife at his throat throughout (Ibid, Pg. 843). When it was over, he went to the bathroom, with three of his assailants following him. They told him to say nothing

about the rape or they would kill him (Ibid, Pg. 844). He returned to his bunk, as did they — one on each side of him and one beneath (Ibid, Pg. 845). The three rapists talked, smoked marijuana, and chatted all night long. Brown remained awake (Ibid, Pg. 846). Brown told a correctional officer the next morning that he had been raped (Ibid, Pg. 847), but the correction officer appeared disinterested (Ibid, Pg. 847). For the next few days, one, two, or three of the inmates followed Brown about (Ibid, Pg. 848). On the fourth day, Brown was taken to Lt. Minor's office (Ibid, Pg. 850) where Minor said, "I heard you had a line as long as a dorm." Brown told him what had happened (Ibid, Pg. 851). Minor told him he would put him in protective confinement if Brown would give a written statement, which he did[51] (Ibid, Pg. 852).
703*703 191. Brown attempted repeatedly to bring the matter to the attention of Superintendent Randall Music. His first communication, dated June 24, 1985, noted: "I would like to speak to you about the reason that I'm in protective confinement, which I'm sure you're well aware of at this particular reason." (Ibid, Pg. 859). Two days later, Brown wrote to Music a note that read as follows:
I am sure that you're aware of what led me into protective custody. I would like to speak to you about this matter. I do not think it's fair for these inmates to escape this kind of incident. I have already tried to contact Classification[52] with no results. I hope that we can get together about this matter. This is my second request about this matter. The first was 6-2485. (Ibid, Pg. 861).
A third and final writing addressed to Music was dated July 1, 1985, and read as follows:
Good day. I would again like to request your time in a personal interview in your office as soon as possible. I know you're a very busily man and do not have time to spare, but this will only take a little of your time. also, please be aware that I have been trying to get in contact with the Classification Department without any results. Could you please look into this matter for me. I would like to know why there it is so hard to get to these people to talk to them. Please take action on this as soon as possible. Thank you. (Ibid, Pg. 863).
192. Brown received no response to any of these requests (Ibid, Pg. 864). The only response he has had to his rape is a one-hour meeting with a psychologist at GCI. This is the only psychological counseling this inmate has received subsequent to the rape[53] (Ibid, Pg. 864).
193. No investigation by Lt. Peters was made initially of Brown's alleged rape (Peters), despite documentary evidence that the allegation was known to prison officials. A June 28, 1985 notation in the "Remarks Disposition" section of his disciplinary Committee Visit form that reads as follows: "Reviewed Status — Subject forced to commit sex acts and is unable to cope with pressures on the compound. Will rec. transfer and expedite. Continue P/C status. It is essential." (D.Ex. 22).
194. Brown was transferred to Hendry Correctional Institution July 12, 1985 (Ibid). Within about 30 days, other inmates who had been transferred from GCI had passed the word that Brown was "good pussy" (Brown, Pg. 866). Brown requested and received protective custody at Hendry August 9, 1985, after telling a guard lieutenant there that "I see (sic) that

my life is in danger, because I have been approached by several black inmates about having sex with them, and I feel that if I don't they will attack me." (D.Ex. 22, Department of Corrections Report of Administrative Confinement dated August 9, 1985). Brown remained in protective confinement until September 27, 1985, when he was transferred back to GCI (Ibid, Pg. 868). Upon arrival, he immediately checked back into protective confinement. According to a Department of Corrections Report of Protective Confinement form dated September 27, 1985, and included among the papers in Defendants' Exhibit 22, Brown stated to Lt. E.L. Minor:
[H]e fears for his life here, at Glades Correction. Inmate Brown stated he 704*704 was sexually molested here a few months ago and was transferred to Hendry where he was also to be put into Protective Confinement due to being sexually harassed by inmates who were housed here and knew about his past ... (Ibid).
On November 7, 1985, the Protective Confinement Review Team directed a memorandum to Superintendent Music, which memorandum is also included in Defendants' Exhibit 22, that read as follows:
Inmate Brown, Larry W/M # 477709 was interviewed by the team on 11-1-85 with reference to his protective confinement status which began 9-27-85. He reports that he was sexually assaulted by an undetermined number of black inmates over the course of a week's time. He did not report it because he was afraid, and everywhere he went one of them followed and watched. He sought protective confinement, was traded to Hendry C.I., threatened there and checked in, and finally traded again back to Glades C.I. He states that one of the inmates who assaulted him was Johnny Jones of "A" Dorm. He claims he doesn't know any other names.
We believe his protective confinement should continue, pending investigation of his allegations and possible transfer to another facility. (Ibid).
195. Lt. Peters has still not investigated Brown's allegations (Peters). The only transfer that has occurred concerning this inmate was his transfer from GCI to the Dade County Jail immediately before Thanksgiving pursuant to a Writ of Habeas Corpus ad Testificandum issued by this Court. Music's sole reaction to the missives directed to him by Brown was to observe that he wondered how thick Brown's file of copies would grow over the span of this 40 year sentence.
G. A FINAL WORD: THE FACTUAL INTEGRITY OF PLAINTIFFS' CASE
196. While the Court is not unmindful of the Plaintiffs' self interest in testifying, the credibility of Plaintiffs' testimony is evident from various independent reasons. First, the integrity of the plaintiffs' evidence is compelled by the dynamics of the way in which this case has developed.
197. These were not plaintiffs who came as a group to attorneys, seeking out counsel to prosecute a lawsuit. Rather, these were individuals who came forward after reading a class

action notice posted throughout the prison system by Department of Corrections employees. Scattered throughout Florida's prison system, without the opportunity to converse with each other about their separate, individual experiences at GCI,[54] these inmate plaintiffs did not come together prior to the trial in this action.
198. Secondly, while aware of the natural self-interest of any plaintiff in a suit for money damages, the Court is aware of various disincentives for these plaintiffs to 705*705 have testified as they did, especially for the rape victims. Not only has their demeanor on the witness stand reflected an obvious discomfort in publicly discussing their anal rapes, but the first of the plaintiffs' two psychological expert witnesses testified that the men were in similar, if not more pronounced, states of turmoil during the times that he interviewed them,[55] while the second characterized their interview behavior and verbalizations as consistent with their having been raped.[56]
199. In sum, this Court is convinced, by a combination of its having been able to view the witnesses and judge their credibility, and of its having heard from the plaintiffs' experts about the integrity that they separately found during their investigations, that the plaintiffs told the truth when they testified about events which occurred while they were incarcerated at GCI.
1. CONCLUSIONS OF LAW
a. THE DAMAGE CLAIMS
(1.) OVERVIEW
(a) SCOPE OF FEDERAL JUDICIAL INVOLVEMENT
200. At the outset, this Court recognizes that "[t]raditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration." Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). These problems are "complex and intractable ... they are not readily susceptible of resolution by [judicial] decree. Most [prisons] require expertise comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Id at 405, 94 S.Ct. at 1807.
201. However, this court is also mindful that "[c]ourts certainly have a responsibility to scrutinize claims of cruel and unusual confinement ... When conditions of confinement amount to cruel and unusual punishment, `federal courts will discharge their duty to protect constitutional rights.'" Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 2402, 69 L.Ed.2d 59 (1981) (citing Procunier 416 U.S. at 405-06, 94 S.Ct. at 1807-08); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (The Court has "repeatedly held that prisons are not beyond the reach of the Constitution."), Id., ("[W]e have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.").

(b) EIGHTH AMENDMENT PROHIBITIONS
202. The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishment"[57]. The former Fifth Circuit (en banc) has explicitly ruled that:
Confinement in a prison where terror reigns is cruel and unusual punishment. A prisoner has a right to be protected from the constant threat of violence and from sexual assault. Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir.1981) (en banc), citing Withers v. Levine, 615 F.2d 158 (4th Cir.1980); Gates v. Collier, 502 F.2d 1291 (5th Cir.1974); Woodhous v. Virginia, 487 F.2d 889 (4th Cir.1973).
706*706 203. "When prison officials have failed to control or segregate prisoners who endanger the physical safety of other prisoners and the level of violence becomes so high ... it constitutes cruel and unusual punishment." Jones v. Diamond, supra, 636 F.2d at 1374 citing McCray v. Sullivan, 509 F.2d 1332 (5th Cir.) cert. denied 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975).
204. Indeed, in order to comply with the eighth amendment prohibition against cruel and unusual punishment, prison punishment must comport with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). Moreover, such punishment must not "involve the unnecessary and wanton infliction of pain." Rhodes v. Chapman, supra, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion)), which includes those punishments that are "totally without penological justification." Id. (quoting Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. at 2929).
205. The various Circuit Courts of Appeal have uniformly ruled that "[s]ubjecting prisoners to violent attacks or sexual assaults, or constant fear of such violence, shocks modern sensibilities and serves no legitimate penological purpose." See, e.g., Martin v. White, 742 F.2d 469, 474 (8th Cir.1984).
(c) GENERAL STANDARDS OF LIABILITY
206. In order for prison officials to be liable under a § 1983 action based on a constitutional deprivation resulting from cruel and unusual punishment, there must be a showing that the prison officials' conduct constitutes a reckless or callous indifference to the rights and safety of the prisoners in his charge. Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.1982) cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983) (Must allege "a conscious or callous indifference to prisoners' rights"); Miller v. Salem, 728 F.2d 1020, 1024 (8th Cir.1984) (Reckless disregard of inmates' right to be free from violent attacks by fellow inmates); Wade v. Haynes, 663 F.2d 778 (8th Cir.1981) (Reckless disregard, gross negligence, callous indifference), aff'd on other grounds sub nom Smith v. Wade, 461 U.S. 30, 102 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ("Reckless or callous indifference by prison officials sufficient to award of punitive damages."); Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir. 1983) (Virtual indifference to the safety of prisoners.)

(2.) APPLICATION OF THE STANDARDS
207. At the outset, the Court recognizes that in determining whether or not Defendant Turner's conduct rises to a level of "conscious or deliberate indifference to [plaintiffs' need] for reasonable protection from violence," Williams v. Bennett, supra, 689 F.2d 1380, a variety of § 1983 liability elements interplay. While those elements or factors overlap to some extent and are otherwise difficult to disentangle, the Court nonetheless will review them for purposes of analysis in isolation. Nonetheless it is the sum of these factors when ultimately considered in totality which convinces this Court that Defendant Turner acted with deliberate indifference to Plaintiffs' needs for reasonable protection from violence. Williams v. Bennett, supra.
(a) ELEMENTS OF LIABILITY
(1) TURNER'S KNOWLEDGE OF A PERVASIVE RISK OF HARM
208. Somewhat intertwined and perhaps subsumed into the "callous or deliberate indifference standard" of § 1983 prisoner damage liability is the basic notion that the perpetrator (Defendant) knew or should have known of a pervasive risk of harm resulting in victim's (Plaintiffs) injury. See, e.g., Roberts v. Williams, 456 F.2d 819, 827 (5th Cir.1971) cert denied 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1972) (§ 1983 liability premised upon a "callous indifference to [inmate suffering] at the management level, in the sustained knowing maintenance of bad practices and customs."); Patterson v. MacDougall, 506 707*707 F.2d 1, 3-4 (5th Cir.1975) (Personal liability of Director of Corrections both because of his direct involvement and because of his failure to act when improper prison conditions were brought to his attention.); Wright v. McMann, 460 F.2d 126, 134-5 (2nd Cir.1972) (Warden held liable financially for damages to inmate where he failed to take corrective action in light of history of previous similar episodes.).
209. The Court has previously found that Defendant Turner in some instances knew and in other instances should have known of widespread illegal activities in general and risks of harm to inmates' security in particular.
210. Turner knew of general inmate security problems through: (1) official documentation, including (i) Turner's acknowledgement to DOC Secretary Wainwright that GCI was "out of control," supra, ¶ 38, and that staffing problems created a danger to the "staff and inmate population" (emphasis in original), (ii) the 1980 Palm Beach County Grand Jury presentment which recited "lax security precautions" and referred to a free flow of contraband at GCI including drugs, alcohol, gambling, theft, contraband, and extortion among inmates and personnel, supra, ¶ 40, (iii) the 1980 Inspector General Management report evidencing continuing security issues including unattended supervision of dormitories, supra, ¶ 42, (iv) the 1983 Inspector General Report evidencing continuing "disregard for established procedures," supra, ¶ 45; (2) major incidents of staff corruption including (i) the Lt. Barrett incident, supra, ¶¶ 46-50, and (ii) the illegal activities of Officer Dixon, supra, ¶¶ 51-52; and (3) knowledge of the free flow of contraband as evidenced by

the reports of the official documents previously discussed; the activities of Lt. Barrett and Officer Dixon; and the general common reporting in other internal documents of inmates' possession of weapons, drugs, alcohol, and extortion activities.
211. It is less clear to distinguish between what Turner actually knew from what he should have known. The Court is convinced that a prudent administrator should have known — assuming Turner did not actually know — of: (1) widespread extortion activities of inmates such as Larry Pryor working in complicity with staff officers, supra, ¶ 53; (2) widespread rape and physical assaults on inmates given various objective and discernable indices such as (i) the general free flow of contraband, assaults, extortions and violence that permeated GCI prisoner life between 1980-1984, supra, ¶ 56, (ii) the consistent and disproportionate number of white inmates who "checked into" protective confinement which itself, due to its punitive conditions, should have — assuming that it did not — constituted a direct signal of inmate violence, supra, ¶¶ 73-74, (iii) the general wolfing and cat-calls of aggressive black inmates who were vocally signalling vulnerable whites for future sexual attack, supra, ¶ 77, (iv) overt signs of sexual conduct evidenced by hung sheets, inmates groaning in their bunks, and pornographic movies where inmate crying and moaning could be readily heard, supra, ¶ 78, (v) direct reporting of rape by certain Plaintiffs (Aldred, Sanders, and Harper) which either were known or should have been known through a normal chain of command to Turner, supra, ¶ 79.
(2) CONDITIONS WERE WITHIN TURNER'S FINANCIAL AND ADMINISTRATIVE CONTROL
212. If full compliance with accepted constitutional practices "is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority, then he cannot be said to have acted with callous indifference." Williams v. Bennett, supra, 689 F.2d at 1387-1388 (emphasis added) citing Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974); Slavin v. Gurry, 574 F.2d 1256, 1262 (5th Cir.1978). See also, e.g., Chestnut v. City of Quincy, 513 F.2d 91 (5th Cir.1975); Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971).
213. The element of "control" in Williams v. Bennett, supra, is measured both from inherent and financial limitations, 708*708 Ibid. at 1387, "One such limitation may have been the funding available to comply with the constitutional norms" as well as more generally matters within an individual's administrative control.
214. The principle of proper management structure employed to reduce the likelihood of the tragedies that have occurred in this case have been aptly described by the Chief Judge of the former Fifth Circuit:
One of the critical elements is that the official demonstrate that he has employed efficient management principles so as to minimize the chance of error and maximize the likelihood of full satisfaction of constitutional and statutory obligations. Bryan v. Jones, 530 F.2d 1210 at 1216 (5th Cir.1976) (en banc) (Brown, C.J.) (concurring).

215. The Court has identified a series of administrative areas within Turner's managerial control which also impose no fiscal limitations as evidenced in part by corrective measures taken by Turner's successors. These include: (1) improper and inadequate staff training evidenced by gross problems with officers' handling of weapons carried to the extreme in the Barrett incident, supra, ¶ 46; (2) a staff out of control who did not report rapes, assaults, and illegal activities up through the chain of command, supra, ¶ 66; (3) the failure to supervise staff and administer measures which would "minimize the chance of error and maximize the full satisfaction of constitutional protection," Bryan v. Jones, supra, in (i) not stationing officers to patrol throughout the dormitories, particularly at night, and leave the wicket cage, and in (ii) permitting the obscuring of vision of the officers in the wicket by allowing inmates to hang sheets, blankets, their personal property, lockers and other materials resulting in the impossibility for officers to maximize the protection of inmates in the dormitory; (4) a shocking failure to employ any standard procedure to investigate incidents of alleged rapes, supra, ¶ 82; (5) the failure to request outside investigative or presecutorial assistance to otherwise make some even minimal attempt to deter rapings and assaults, supra, ¶ 84; (6) the failure to provide inmate movement controls thus reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, supra, ¶ 89; and (7) the failure to transfer know assailants or inmates who should have been known to be assailants out of GCI, supra, ¶ 86.
(3) NOT A SERIES OF ISOLATED INCIDENTS
216. By the nature of the Court's previous findings and conclusions, supra, ¶¶ 208-211 ("Turner's knowledge of a pervasive risk of harm") and ¶¶ 212-215 ("Conditions Were Within Turner's Financial and Administrative Control") the Court by implication already has addressed the matter, consistently urged by Defendants throughout trial[58], that Plaintiffs' claims for damages are merely ten separate isolated incidents. To the contrary, the Court already has discussed in detail the broad "pervasive risk of harm" and "conditions which were within Turner's financial and administrative control."
217. Plaintiffs' claims stem from these far reaching and serious failures of Defendant Turner to properly manage and administer Glades Correctional Institution. See, Bryan v. Jones, supra 530 F.2d at 1216; Donaldson v. O'Lane, 752 F.2d 817, 828 (3d Cir.1984) (en banc) ("When officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such failure would support a claim under § 1983)," citing, Murray v. City of Chicago, 634 F.2d 365 (7th Cir. 1980), cert. dismissed sub nom. Finley v. 709*709 Murray, 456 U.S. 604, 102 S.Ct. 2226, 72 L.Ed.2d 366 (1982).
218. In sum, Plaintiffs' claims are not isolated incidents. They stem from a far ranging and serious failure of Defendant Turner to properly manager GCI.[59]
(4) BREACH OF A DUTY IMPOSED BY STATE LAW
219. A "supervisory defendant is subject to § 1983 liability when he breaches a duty imposed by state ... law, and this breach causes plaintiff constitutional injury." Williams v. Bennett, supra, 689 F.2d at 1381; Sims v. Adams, 537 F.2d 829, 831 (5th Cir.1976);

Beverly v. Morris, 470 F.2d 1356 (5th Cir.1972); Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir.1971); Scott v. Vandiver, 476 F.2d 238, 241-42 (4th Cir.1973); McDaniel v. Carroll, 457 F.2d 968, 969 (6th Cir.1972); see generally Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971).
220. Under Florida law, as Superintendent at GCI, Defendant Turner was required to protect "the offender from victimization within the institution" and to develop "a system of due process and internal legality in the institution." 20.315(1)(c), Florida Statutes (1983) (emphasis added).[60]
221. The Florida statutory requirement contained in Section 20.315 provides Plaintiffs with "a clear legal right to be confined in an institution where they are free from victimization by other inmates" and places upon Defendant Turner "an equally clear legal duty to [have provided Plaintiffs] with such incarceration." Graham v. Vann, 394 So.2d 180, 183 (Fla. 1st D.C.A. 1981) (Mandamus issued to compel the Department of Corrections to comply with legal duty to confine inmates in an institution where they are not victimized by other inmates).
222. As detailed herein, Defendant Turner breached his statutory duty under Florida law which caused Plaintiffs' constitutional injury.
(b) CAUSATION
(1) GENERAL STANDARDS
223. Our Circuit has clarified the principle that in prison damage actions of this nature, a "[C]ritical causation issue [here] must be whether each individual defendant was in a position to take steps that could avert the stabbing incident at Holman; but, through callous indifference, failed to do so." Williams v. Bennett, supra, 689 F.2d at 1384.
224. Of necessity, the Court in detail has reviewed the context of the general operational policies, practices, conditions and events existing at the general time Plaintiffs' claims arose, supra, ¶¶ 36-105; traced Defendant Turner's knowledge of these matters which the Court has concluded reflect a "pervasive risk of harm," supra ¶¶ 208-211; and reviewed these conditions demonstrating that they were all within a prudent administrator's administrative and financial control.
225. Having faithfully adhered to our Circuit's guideline of resolving the causation issue which "necessarily entails a very individualized approach, taking into account the duties, discretion, and means of each defendant," Williams v. Bennett, supra, this court in addition has traced the 710*710 factual details of each Plaintiff which led to their respective injury.
226. Turner's failure to properly and prudently manage GCI matters within his administrative and financial control is a direct cause of Plaintiffs' injuries. The exacting causation link required by Williams v. Bennett, has been amply proven and documented.

(2) PERSONAL INVOLVEMENT
227. It is now settled that in § 1983 actions public officials cannot be held vicariously liable for the wrongdoing of others. Monell v. N.Y. City Dept. of Social Services, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Thus Defendants are correct when they assert that misconduct by subordinates or third parties cannot be imputed under § 1983 to an official who played no role in causing a deprivation of constitutional rights.[61]
228. However, this principle cannot be extended in an attempt to insulate public officials from § 1983 liability by requiring that in order to hold a public official responsible for a constitutional deprivation that official must have participated literally and directly, or must have been present at any of the Plaintiffs' rapes/assaults. According to this reasoning, § 1983 would preclude recovery against public officials where those officials directly contribute or cause a deprivation of constitution rights — although not present or directly participating in causing the injury — by merely exercising "callous indifference" in maintaining policies and practices which lead to that designation.
229. Such a proposition is in error; § 1983 only requires that there be a causal connection between the officials' conduct and the constitutional tort. It does not require direct personal contact or direct conduct by the Constitutional violation. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961) (42 U.S.C. § 1983 constitutionally based claims "should be read against the background of tort liability that makes a man responsible for the natural consequences of his act."); Williams v. Bennett, supra, 689 F.2d at 1383 ("[S]ection 1983 plainly requires, a causal connection between the Constitutional deprivation and the defendant's acts or omissions"); Sims v. Adams, 537 F.2d 829, 831 ("§ 1983 requires a degree of causation as an element of individual liability, but it does not specifically require personal participation").
230. In sum, all that must be shown based upon these principles is that Defendant's conduct was a proximate cause of the Plaintiffs' injury. Plaintiffs have proved such causation in this lawsuit.
(3.) DEFENDANT TURNER'S GOOD FAITH DEFENSE AND QUALIFIED IMMUNITY
(a) THE STANDARDS
231. Even when prison administrators violate an individual's constitutional rights, they may enjoy a good faith immunity defense to § 1983 lawsuits when sued in their individual capacity for damages. Scheuer v. Rhodes, supra, 416 U.S. at 247-8, 94 S.Ct. at 1692 (1974); Procunier v. Navarette, 434 U.S. 555, 561-62, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978) (Qualified immunity applicable to protect prison officials); Williams v. Bennett, supra, 689 F.2d at 1385-86 (11th Cir.1982).
232. The parameters of this defense were clarified by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). There, the Court, while

reviewing its previous qualified immunity decisions, recognized that the "good faith" defense has both objective, Harlow v. Fitzgerald, supra, 457 U.S. at 815, 102 S.Ct. at 2736, 73 L.Ed.2d at 408 ("The objective element involves a presumptive knowledge of and respect for "basic, unquestionable constitutional rights," citing Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 711*711 (1975)), and a subjective aspect. Id. ("The subjective component refers to `permissive intentions.'"). In refining these concepts, the Court concluded that government officials are shielded from liability for civil damages "[I]nsofar as their constitutional rights of which a reasonable person would have known (emphasis added) (citations omitted). Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738, 73. L.Ed.2d at 410.
233. Harlow v. Fitzgerald, supra, thus refines the qualified immunity defense to a consideration based upon objective factors. Our Circuit, in accord, has interpreted Harlow in such a manner. Williams v. Bennett, supra, 689 F.2d at 1385 ("Thus, objective criteria now govern the evaluation of a good faith defense.").
(b) BURDEN OF PROOF
234. Determinations as to the availability of the qualified immunity defense almost always will turn on an appreciation and analysis of the facts. Imber v. Pachtman, 424 U.S. 409, 419, n. 13, 96 S.Ct. 984, 989, n. 13, 47 L.Ed.2d 128; Scheuer v. Rhodes, supra, 416 U.S. at 238-9, 94 S.Ct. at 1687; and Wood v. Strickland, supra, 420 U.S. at 320-22, 95 S.Ct. at 1000. As an affirmative defense, the burden in proving the "qualified immunity" defense rests with the Defendant. Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S.Ct. 1920, 192324, 64 L.Ed.2d 572 (1980).
(c) APPLICATION OF THE QUALIFIED IMMUNITY DEFENSE
235. There is "no serious question but at the time" these sexual assaults occurred, it was well-settled that a prisoner had a "clearly established" Eighth Amendment right to be protected from constant threats of violence. Stokes v. Delcambre, 710 F.2d 1120, 1125 (5th Cir.1983); Jones v. Diamond, supra, 636 F.2d at 1374; Gulatte v. Potts, 654 F.2d 1007, 1012 (5th Cir.1981) (Unit B); Withers v. Levine, 615 F.2d 158 (4th Cir.) cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974); Woodhous v. Virginia, 487 F.2d 889 (4th Cir.1973); McCray v. Sullivan, 509 F.2d 1332 (5th Cir.) cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975).
236. To the extent that good faith is defined essentially in objective terms, if Defendant Turner knew or should have known that his failure to take reasonable steps to prevent Plaintiffs from being sexually assaulted by other inmates violated Plaintiffs' rights under the Eighth and Fourteenth Amendments, then good faith will be defeated. The Court concludes that the law which requires a prison official with knowledge of a pervasive risk of harm to inmates under his charge to take reasonable steps to prevent that harm was "clearly established."

237. Thus, in the context of this case, the Court finds that Defendant Turner cannot claim that he did not know the constitutional standard since it was a "clearly outlined" right at all times relevant to this action and Defendant Turner's "qualified immunity" defense must fail.
(4.) DAMAGES
(a) OVERVIEW
238. Plaintiffs proceed against Defendant Turner in his individual and official capacity and seek monetary damages against this Defendant. Plaintiffs proceed against Defendant Music solely in his official capacity and seek only injunctive relief against this Defendant.
239. Plaintiffs' suit for damages under § 1983 against Defendant Turner in his individual capacity is not barred by the Eleventh Amendment to the United States Constitution.[62] Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (Suit under § 1983 against state officials in their individual capacity not barred by the Eleventh Amendment, but the State official is entitled to defense of qualified immunity; Ruiz v. Estelle, 679 F.2d 1115, 712*712 1157 (5th Cir.1982) cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).
240. The Court is mindful that the judgment against Defendant Turner in his individual capacity for his actions as Superintendent of GCI will be paid by the State of Florida; in 1979 the Florida legislature enacted a statute in which the State agreed to pay for the full amount of a judgment against an employee of the State in "civil rights actions arising under 42 U.S.C. § 1983, or under similar federal statutes ... unless the officer, employee, or agent has been determined ... to have caused the harm intentionally" Section 111.071(1)(a), Florida Statutes (1983)[63]. Shinholster v. Graham, 527 F.Supp. 1318, 1336-1338 (N.D.Fla.1981).
241. However, this statutory provision which provides for the state to pay judgments against state employees arising out of civil rights actions does not constitute a waiver of the State's Eleventh Amendment remedy and thus damages can only be assessed against Defendant Turner in his individual capacity. See, Williams v. Bennett, supra, 689 at 1376-1378 (11th Cir.1982) (Similar proviso in Alabama law which indemnifies employees for judgment does not constitute a waiver of Eleventh Amendment Immunity).
242. Accordingly, this Court in assessing whether monetary damages should be awarded to Plaintiffs will limit its consideration to whether damages should be awarded against Defendant Turner in his individual capacity.
(b) THE STANDARDS
243. The "policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Robertson v. Wegmann, 436 U.S. 584, 591, 98 S.Ct. 1991, 1995, 56 L.Ed.2d 554 (1978) citing Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252

(1977); Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2159-62, 32 L.Ed.2d 705 (1972); Monroe v. Pape, 365 U.S. 167, 172-187, 81 S.Ct. 473, 476-84, 5 L.Ed.2d 492 (1961). Section 1983 was intended to create "a species of tort liability" in favor of persons deprived of federally secured rights. Carey v. Piphus, supra, 435 U.S. at 253, 98 S.Ct. at 1046.
244. Under Carey v. Piphus, supra, 435 U.S. at 263-264, 98 S.Ct. at 1052, compensible damage may not be presumed but must be proven. However, the "injury in civil rights cases may be intangible" and "need not be financial or physical but may include damages for humiliation and emotional distress." Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir.1985) citing Carey v. Piphus, supra, 435 U.S. at 263, 264 and n. 20, 98 S.Ct. at 1052, and n. 20.
713*713 245. The Supreme Court has recently recognized that "once liability is found ... the [court] ... is required to award compensatory damages in an amount appropriate to compensate plaintiff for his loss." Smith v. Wade, 461 U.S. 30, 52, 103 S.Ct. 1625, 1638, 75 L.Ed.2d 632 (1983) (§ 1983 action by inmate against prison guard for damages sustained from beatings and sexual assaults by other inmates).
246. Notwithstanding the fact that all of Plaintiffs' damages are not quantifiable with precision," their injuries nonetheless give rise to actual consequential damages. Cortiz v. Naranjo, 667 F.2d 892, 898 (10th Cir.1981) (§ 1983 damage award against law enforcement officials). Additionally, "real injury could be inferred from the facts" of each plaintiff's case. Baskin v. Parker, 602 F.2d 1205, 1210 (5th Cir.1979) (damages for humiliation and emotional distress appropriate in § 1983 action).
247. Other federal courts have consistently awarded damages to Plaintiff inmates whose Eighth Amendment rights had been violated. See, e.g., Wade v. Haynes, 663 F.2d 778 (8th Cir.1981) (plaintiff awarded $25,000 in compensatory damages and $5,000 in punitive damages against correctional officer for damages sustained in beatings and sexual assaults by other inmates), aff'd Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Thomas v. Booker, 762 F.2d 654 (8th Cir.1985) (plaintiff entitled to compensatory and punitive damages from defendant jail officials because of defendants' reckless disregard of plaintiff's right to be free from violent attacks by fellow inmates); Matzker v. Herr, 748 F.2d 1142 (7th Cir.1982) (plaintiff stated a claim for compensatory and punitive damages from defendant jail officials because of their failure to reasonably protect him from violent attacks by fellow inmates); Martin v. White, 742 F.2d 469 (8th Cir.1984) (Prison officials were liable for compensatory and punitive damages where they acted in reckless disregard of inmates' right to be safe from assaults by other inmates); Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir. 1983) (plaintiff awarded $70,000 in compensatory damages and $310,000 in punitive damages against jail officials for damages stemming from a violation of his Eighth Amendment right to be reasonably protected from physical assault by other inmates); Davis v. Hazen, 582 F.Supp. 938 (C.D.Il. 1983) (mentally ill inmate's estate held entitled to compensatory and punitive damages from jail officials whose actions led to the decedent being beaten to death by a fellow inmate).
(c) DAMAGES FOR EACH PLAINTIFF

248. Five of the damages plaintiffs are victims of rape. Two of those, David Aldred and Martin Saunders, were diagnosed by Dr. Caddy as suffering from post traumatic stress disorder[64] (Caddy, Pgs. 1185-1186 and 1207). Ronald Durrance, in addition to the gain time he has lost, has suffered an adjustment disorder with mixed emotional features[65] (Caddy, 714*714 Pg. 1225), as was Harper (Ibid, Pg. 1229). Bronson, who was penetrated with a baseball bat handle,[66] is suffering an adjustment disorder with mixed emotional features, together with an atypical personality disorder and a sexual identification disorder, although it is impossible to discern specifically what part of the disorder is a direct function of the incident at Glades (Ibid, Pg. 1193). Were the five rape victims, as well as the other plaintiffs that Dr. Caddy interviewed, to be treated outside of prison for the emotional distress resulting from the rapes, each would require an estimated $10,000 to $20,000 in therapy (Caddy, Pg. 1271). Four additionally testified as to the intense physical pain each felt upon being anally penetrated and for some time thereafter (Aldred, Pgs. 816-817), (Saunders, Pgs. 558-559), (Durrance, Pgs. 459 and 472), (Bronson, Pgs. 698-699). That each was experiencing extreme emotional distress can be inferred from their decision to check into, and to remain, in protective confinement where conditions can only be described as punitive (Caddy, Pg. 1265). Considering these factors, including that psychiatric and/or psychological services can and should be provided by the Department of Corrections, the Court hereby awards to each of the sexually assaulted plaintiffs a sum of Thirty Thousand Dollars ($30,000) in compensatory damages.
249. A second grouping of plaintiffs were not raped, but suffered physical injuries as a result of assaults. The most severely injured of these is Wayne Epprecht, whose cheek bone was fractured when he was struck with a lead pipe during a robbery. Epprecht, even following surgery, suffers from a probable temporomandibular joint dysfunction, or misallignment of the jaw, which is consistent with the headaches and pain upon chewing of which Epprecht complains (Wagshull). The jaw problem can be remedied by an office procedure, but has caused Epprecht pain for nearly 5 years — some 1,700 days. Additionally, Epprecht suffers from a permanent sensory deficit in the left cheek that will forever produce sensations of numbness and, upon elongated bouts of chewing, pain (Wagshull). And lastly, Epprecht was diagnosed by Dr. Caddy as suffering from a moderate adjustment disorder with mixed emotional features. Considering all of these factors, and overlaying the permanency of Epprecht's facial injury on the life expectancy of this 33 year old plaintiff, the Court awards Epprecht Seventeen Thousand Dollars ($17,000.00) in compensatory damages.
250. Two other of the plaintiffs, Eddie Cobb and Edwin Johnson, both suffered injuries that appear to have been serious, but less substantial than Epprecht. Cobb was stabbed, requiring 18 stitches in his scalp and 12 on his right arm (Cobb, Pg. 768), has a permanent scar on his right arm (Ibid, Pg. 767), and complains of pounding headaches and dizziness that he previously had not experienced. Johnson was hit in the head with a stool and was hospitalized for two weeks after receiving five stitches in his scalp (Ibid, Pg. 883). Johnson additionally was diagnosed by Dr. Caddy as suffering from an adjustment disorder with mixed emotional features (Caddy, Pg. 1216). In addition to both their physical, and in the case of Johnson, psychological injuries, Cobb and Johnson were both confined for lengthy periods of time. Cobb was locked in administrative confinement from February 6 through March 15, 1985, notwithstanding the fact that he was the victim, not the aggressor in the fight that preceded his confinement (Peters). See, P.Ex. 15, Section C (Department of Correction Daily Records of Segregation for Eddie Cobb from Feb. 6, 1984 to March 15,

1984). Johnson stayed in protective confinement for his own safety. Considering these factors, the Court awards Six Thousand, 715*715 Five Hundred Dollars ($6,500.00) in compensatory damages to Cobb and Thirteen Thousand Dollars ($13,000.00) to Johnson.
251. Two plaintiffs were not seriously physically injured. Michael Gordon, however, was injured psychologically, suffering an adjustment disorder with mixed emotional features (Caddy, Pg. 1164) growing out of a period of incarceration that included two incidents of robbery in which he was hit in the face or head (Gordon, Pgs. 907 and 910), one incident in which his buttocks were singed when a drunken inmate lit Gordon's polyester underwear on fire (Ibid, Pg. 909), and one incident in which he was extorted by a guard (Ibid, Pg. 902). Mr. Gordon is no longer in prison and cannot avail himself of institutional mental health services. [Dr. Caddy testified that some of the inmates could need as much as 80 therapeutic visits (Caddy, Pg. 1271), the cost of which ranges up to as much as $125 an hour (Ibid, Pg. 1272)]. Gordon deserves to be compensated for his emotional distress and the experience he suffered; the Court awards Gordon Six Thousand Dollars ($6,000.00) in compensatory damages.

252. LaMarca suffered neither physical injury nor any especially severe psychological damage. He did, however, endure four months in protective confinement and an additional six months in a county jail for escape, an escape this Court interprets as being prompted by the conditions put at issue by this action, an action initiated pro se by LaMarca. Those 10 months total some 300 days which, if valued for the loss of privileges that Mr. LaMarca endured while in protective confinement (120 days) and for the loss of what would otherwise have been complete freedom (180 days), provide a basis for an award to LaMarca. The Court awards LaMarca Nine Thousand Dollars ($9,000.00) in compensatory damages.

253. In summary, the Court finds that each Plaintiff is entitled to the following award of compensatory damages for injuries suffered by each Plaintiff as the consequence and direct result of Defendant Turner's violation of each plaintiff's constitutional rights:

(i) Anthony LaMarca (ii) Martin Saunders (iii) Edwin Johnson (iv) David Aldred
(v) Steve H. Bronson, Jr. (vi) Eddie Cobb (vii) Ron Durrance (viii) Wayne Epprecht (ix) Michael Gordon
(x) Billy Joe Harper

$ 9,000 30,000 13,000 30,000 30,000 6,500 30,000 17,000 6,000 30,000

b. THE INJUNCTIVE CASE

(1.) STANDARDS

254. This Court is aware that with respect to several of the allegedly unconstitutional practices of confinement at GCI, the Defendants have instituted changes or improvements. "It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform when there is possibility of resumption." United States v. Oregon

State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). As a general proposition, the "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 ... The defendant is free to return to his old ways." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (footnote omitted). Although Defendants' efforts to ameliorate or correct the alleged deficiencies at GCI are commendable, they do not deprive this Court of the power to order injunctive and/or declaratory relief, where otherwise proper, unless: "(1) it can be said with assurance that `there is no reasonable expectation' that the alleged violation[s] will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., supra, 345 U.S. at 633, 73 S.Ct. at 897). Defendants bear a "heavy" burden of showing that both of these conditions have been satisfied in order to render moot any allegedly deficient conditions or practices 716*716 of confinement. County of Los Angeles v. Davis, supra, 440 U.S. at 631, 99 S.Ct. at 1383.
255. This Court is concerned that the Superintendent of GCI during the trial, Defendant Music, left that position December 13, 1985. Thus, there is no assurance that improvements made by Defendant Music during his tenure at GCI will be continued. Additionally, the Court is of the view that improvements made by Defendant Music did not completely eradicate the unconstitutional conditions of confinement.
(2.) INJUNCTIVE RELIEF
256. There have been beneficial changes at GCI since the retirement of Defendant Turner as superintendent — e.g., expeditious transferring of known "wolves," the barbed-wiring beneath the fence surrounding the confinement area, and the removal from dormitory bunks of such obstructions as towels and lockers. What happened to witness Larry Brown as recently as June, 1985 — and, equally to the point, what has not happened to any of his assailants, despite this Court's having found Brown to be forthcoming witness — makes patent the need for systemic changes.
257. The Court orders that two committees be established, one of penologists and the other of psychologists or psychiatrists, to advise the Court in the formulation of specific injunctive relief.
258. The charter of the committee of penologists shall be to review and develop relevant procedures at GCI. One goal of this committee shall be remedial: to ferret out other rape victims[67] who have not been identified through this litigation, so that they may be provided whatever therapeutic assistance is needed. A second, more far reaching goal will be prospective: to prevent a recurrence of the assaults, extortions, and homosexual rapes that unfortunately — but not inevitably — have characterized life on the compound at Glades Correctional Institution.
259. The charter of the committee of psychiatrists/psychologists shall also be two-pronged. The first mission shall be to prescribe a treatment plan for the plaintiffs and witnesses in this action who remain incarcerated. The second will be to develop an internal mechanism within the prison for providing the male rape victims of Glades Correctional Institution the

same kind of support that female rape victims on the outside receive from rape crisis centers.
260. The parties shall nominate one member of each committee, submitting the nominees' names to the District Judge within 30 days of the date of this Order. The Court shall name the third member, who shall be chairman. The committees shall report to the Court within 60 days with an outline of the therapeutic services needed for the instant plaintiffs and witnesses, and with a preliminary plan for the remaining tasks.
c. A LOOSE END: IDENTIFICATION OF THE CLASS
261. On April 15, 1984, this Court (Paine, J.) ordered that a class be certified consisting of those persons who are or will be incarcerated at GCI, for purposes of injunctive relief. Defendants have moved this Court to decertify this class on the grounds that none of the named plaintiffs are presently at GCI. Defendants' request is denied.
262. While Defendants are correct that none of the named plaintiffs are presently incarcerated at the GCI, that fact does justify the relief sought by Defendants.
263. It is well settled that where the claim on the merits is "capable of repetition yet evading review," the named plaintiff may continue to litigate the action despite the plaintiff's loss of personal stake in the outcome. Gerstein v. Pugh, 420 U.S. 103, 110, n. 11, 95 S.Ct. 854, 861, n. 11, 43 L.Ed.2d 54 (1975). Since seven of the named Plaintiffs continue to be incarcerated within the Florida State prison system, there exists a distinct possibility that they 717*717 will again be incarcerated at GCI since inmates are subject to reassignment to various institution within the system.
264. The "capable of repetition, yet evading review" doctrine is clearly applicable "where the named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff." U.S. Parole Commission v. Geraghty, 445 U.S. 388, 398, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) citing Weinstein v. Bradford, 423 U.S. 147, 148, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 123-125, 93 S.Ct. 705, 711-13, 35 L.Ed.2d 147 (1973). The Geraghty Court reasoned that "[s]ince the litigant faces some likelihood of being involved in the same controversy in the future, vigorous advocacy can be expected to continue." Id.
265. However, notwithstanding this Court's conclusion that the Plaintiffs may continue to prosecute this class action, even though they are no longer incarcerated at GCI, the Court is still required to examine the ability of the named representative "to fairly and adequately represent the interest of the class." Fed.Rule Civ.Proc. 23(a); Sosna v. Iowa, 419 U.S. 393, 400, 403, 95 S.Ct. 553, 557, 559, 42 L.Ed.2d 532 (1975); United States Parole Commission v. Geraghty, supra, 445 U.S. at 406-407, 100 S.Ct. at 1214.
266. In this action, the named Plaintiffs have and continue to adequately represent the interests of the class. It is unlikely that the named Plaintiffs would have interests in conflict with the class and the interest of the class have been competently represented throughout

all these proceedings, the trial and during the post-trial activity. Sosna v. Iowa, supra, 419 U.S. at 403, 95 S.Ct. at 559.
267. Finally, prior to decertifying the class on the basis that the named Plaintiffs are no longer class members, this Court would be obliged to provide class members with notice of what has occurred and provide them with an opportunity to come forward as a named Plaintiff class representative. See, U.S. Parole Commission v. Geraghty, supra, 445 U.S. at 407, 100 S.Ct. at 1214. In view of the Court's finding that the named Plaintiffs are presently adequately representing the class, the Court need not provide any such notice to class members at this time.
III. CONCLUSION
268. In summary, for the reasons detailed in this decision, this Court concludes that GCI was run in a manner that violated Plaintiffs' constitutional rights to not be subjected to "cruel and unusual punishment" and that as a consequence of Defendant Turner's indifference to Plaintiffs' rights, each plaintiff suffered injuries for which he shall be compensated.
269. Additionally, in order to avoid any recurrence of the way GCI was operated by Defendant Turner, and to ensure that additional improvements will be implemented to address victims of the unconstitutional practices, the Court has ordered the injunctive relief described herein.
270. Finally, as the prevailing party in this action, Plaintiffs are entitled, pursuant to the Civil Rights Attorney Fees Awards Act of 1976, 42 U.S.C. § 1988, to an award of attorney fees and litigation expense reimbursement.
271. Plaintiffs shall file with the District Judge within twenty (20) days from issuance of this Order appropriate fee/expense submissions and accompanying memoranda as to this issue. Defendants shall respond within twenty (20) days from Plaintiffs' filing. The District Judge may then enter an appropriate Order granting Plaintiffs' attorney fees and litigation expenses consistent with the parties' submissions.
Pursuant to statute, the parties may file and serve, with the District Judge in West Palm Beach, and within ten (10) days of the entry of this Order, their written objections to any portion of these Findings of Fact or Conclusions of Law.
[1] Decisions of the former Fifth Circuit filed prior to October 1, 1981 constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
[2] Although Fed.R.Civ.P. 39(b) permits a court in its discretion to grant a jury trial after the period for a timely demand has run, defendants insist that they were entitled to a jury trial as of right and that therefore a Rule 39(b) analysis is inappropriate (DE 155, at 5).
[3] The investigation occurred in mid-1984 rather than 1974, a probable typographical error in the report and recommendation.
[4] Lipman: During your tenure, Mr. Turner, were any officers ever suspended or disciplined for failure to walk the areas of the dormitory outside of their wicket during their duty hours?

Mr. Turner: I'm less sure of that one, Mr. Lipman. There probably could have been some disciplinary action taken concerning officers not properly performing those types of duties.
There certainly could have been, yes, sir.
Mr. Lipman: Can you recite one specific instance where that occurred, sir?
Mr. Turner: No, sir, I cannot.
Turner, DE 164 at 732-22.
[5] "Wolf" is a slang term for a violent, coercive homosexual or for a particularly assaultive inmate.
[6] A former superintendent, Brierton testified that, although he did not personally select the movies, he discovered that inappropriate films were being shown when he stopped by the prison one night to see what the movie was (Brierton, DE 185, at 103).
[7] The Magistrate alternatively found section 1983 liability based on Turner's breach of a duty imposed by state law which caused plaintiffs' constitutional injury. See Williams, 689 F.2d at 1381. The parties agree, however, that Turner could not have breached a duty imposed by Fla.Stat.Ann. § 20.315(1)(c) (West 1987 Supp.), the statute relied on by the Magistrate, because that statute on its face applies only to the DOC and not to individual superintendents. The objection is sustained, and Magistrate's conclusion in this regard (DE 128, at 111-13) is rejected.
[1] Similarly, our Chief Justice has observed:
"[T]he way a society treats those who have transgressed against it is evidence of the essential character of that society." Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (Burger, C.J.).
[2] The case was transferred, pursuant to Local Rule 1(f) (Magistrate Rules of the United States District Court, Southern District of Florida) which provides:
(f) Prisoner Cases Under 42 U.S.C. § 1983.
A Magistrate may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a report containing proposed findings of fact and recommendation for the disposition of petitions filed by prisoners challenging the conditions of their confinement.
[3] The claims of Plaintiff Henry Rosenbaum were severed from this action by Order of this Court of July 15, 1985.
[4] Louie Wainwright, Secretary of the Florida Department of Corrections has been subsequently dropped as a party defendant. See, Plaintiffs' Second Amended Complaint (filed August 26, 1985).
[5] The seven additional plaintiffs added in the Second Amended Complaint are: (1) David Aldred, (2) Steve H. Bronson, Jr., (3) Eddie Cobb, (4) Ron Durrance, (5) Wayne Epprecht, (6) Michael Gordon, and (7) Keith Harris.
Prior to commencement of trial on December 2, 1985, with a written Order following on December 10, 1985, this Court granted Plaintiff Keith Harris' request to withdraw as a party to this action.
[6] Although the Third Amended Complaint was not filed with the Court until November 15, 1985, Defendants had received a copy of the pleading one week earlier on November 8, 1985. See, Defendants' Motion for Continuance filed November 13, 1985, p. 3.
[7] Fed.R.Civ.P. 38(d) states:

The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
[8] Rule 38(b) provides:
(b) DEMAND. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.
[9] Rule 39(b) states in part:
[N]otwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury on any or all issues.
[10] The Amended Complaint in this action, filed over two years ago, raises claims that inmates at Glades Correctional Institution were being assaulted, battered, and/or homosexually raped because:
2. There is, within this institution, a pervasive risk of harm to inmates. Prisoners are repeatedly threatened, beaten and sexually abused by other prisoners. This occurs with the knowledge of the institution staff and is due to the staff's unwillingness or inability to prevent it.
3. There are no protective measures available to inmates of GCI that do not result in the inmates' confinement under punitive, degrading and inhuman conditions.
Amended Complaint at Pgs. 1-2.
These allegations were denied by Defendants in their Answer filed November 2, 1983. Plaintiffs' Second Amended Complaint, served August 26, 1985, like their Third Amended Complaint, is based on these identical allegations.
[11] It is noteworthy that during this general period when Turner recognized the severity of the problems at GCI, D.Ex. 14 ("I felt that it was necessary to bring you up to date on this critical situation") the institution received its first accreditation in 1980 and subsequently again in 1984 (Mulally). Indeed, at the time of the first accreditation and during that general time period of Turner's acknowledgement to Secretary Wainwright of severe and dangerous security problems, GCI was given the second highest score for an institution in the State. (Ibid.) (Swanson, Pgs. 278279).
The accreditation process was explained at some length by Ray Mulally, a Department of Corrections (DOC) employee in charge of securing institutional accreditation in Florida. (D.Ex. 6). Plaintiffs' correctional expert, Dr. Richard Swanson, noted that during litigation concerning conditions at the Florida State Penitentiary (FSP) was receiving its accreditation while at the same time the trial court was concluding that conditions and practices were unconstitutional. Further, notwithstanding the serious and long-standing system-wide litigation of Costello v. Wainwright in which the United States District Court for the Middle District of Florida has consistently found practices and conditions which offend the constitution, literally all institutions remain accredited. (Swanson, Pgs. 278-279; 410412).
For these reasons, the Court finds the GCI accreditation as having virtually no significance to this litigation.
[12] Although not directly related to Turner's management of the personnel aspects of the Barrett incident, Dr. Swanson referred to a transcript of a tape recorded conversation between Turner and an inmate, William Allen, in which Allen described the situation that led up to the disturbance of that precipitated Barrett's presence.
In it, it's very clear the inmate is talking about the wide use of alcoholic beverages within the institution.

In talking about this, it's clear from the conversation that's recorded in these pages, that it is not a surprise at all to Superintendent Turner that alcohol and drugs are available on a widespread basis in the institution. (Swanson, Pg. 212).
[13] Indeed, Florida law permits an immediate suspension of a State employee such as Lt. Barrett in an incident such as this. See, Florida Administrative Code § 22A-10.046, which provides as follows:
In extraordinary situations, such as when the retention of a permanent career service employee would result in damage to property, would be detrimental to the best interests of the State, or would result in injury to the employee, a fellow employee, or some other person, such employee may be suspended or dismissed immediately, provided that written notice of such action is furnished to the employee within twenty four hours.
Superintendent Turner himself was suspended immediately in a similar context for an incident which occurred on May 6, 1971. See, (P.Ex. 1, Tab D) (Letter of May 7, 1971 from Louis L. Wainwright to R.V. Turner).
[14] At the commencement of his testimony, Pryor indicated that he had been harassed by officials from the Department of Corrections at the Florida State Penitentiary, at Glades Correctional Institution, and at DOC's Dade Correctional Institution over a period of several days prior to being transported to Miami for purposes of offering his testimony. While this Court makes no conclusive findings as to whether Pryor in fact was threatened by DOC officials due to his impending testimony, Pryor's earlier deposition testimony was accepted by this Court pursuant to Rule 32(a)(3)(E) Federal Rules of Civil Procedure.
Following Pryor's accusations that he had been threatened by DOC officials, he was appointed private counsel by this Court and upon counsel's advice Pryor chose at trial under the Fifth Amendment to refuse to answer any selfincriminating questions.
[15] See, e.g., (P.Ex. 4) (Palm Beach Grand Jury Presentment, Pg. 6) ("Testimony of inmates and some correctional personnel indicate marijuana and other drugs are available to inmates due in a large part from lax security precautions. Alcohol use and its manufacture by the inmates' ingenuity also appears prevalent; Peters' investigation of 20 gallons of "buck" (inmate homemade wine) (Peters); (P.Ex. 4) (Management Review of GCI, "Conclusions and Recommendations; ¶ 10.1 40 disciplinary reports for "Consumption of Intoxicants" during 1-year period); (P.Ex. 10) (Extortion and drug activities discussed in the Dixon matter); (P.Ex. 9) (Swanson, Pg. 212) (inmate access to alcohol discussed in the Barett incident); (P.Ex. 6, Pg. 9 (Prison Inspector Report) (laxity in security, inmate in possession of homemade knife.).
[16] (Pryor, Dep. Pg. 12) (Selling of marijuana by Pryor); (Ibid, Pg. 33) (access to knives by Pryor — "I have so many knives."); (Swanson, Pg. 57) (drugs, liquor available); (Swanson, Pg. 71) (joints smoked in front of guards); (Ibid) (inmates "strapped to the max" at GCI with knives); (Swanson, Pg. 77) (availability of dope and wine); (Ibid) (protection rackets involving dope and wine; (Ibid, Pg. 78) (staff afraid of inmates armed with knives and shanks; (LaMarca) (inmates had money from selling reefer, making wine and weapons; (Ibid) (LaMarca given knife by officer to protect himself; (Gordon) (blacks ran drugs in GCI); (Epprecht) (free flow of drugs and alcohol at GCI.
[17] Several of the plaintiffs, who have alleged that they were raped, also reported that they had informed the correctional officers of the violation. See, Aldred, infra, ¶ 124; Saunders, infra, ¶ 154; and Harper, infra, ¶ 164.
Apparently, in the case of Saunders and Aldred that information was never relayed to any higher authority other than the Lieutenant to whom each personally reported his rape. As to Harper, the Court reviews his reporting elsewhere. Infra, ¶ 164.
[18] In connection with a Return to Order to Show Cause filed under a certificate of service dated October 12, 1982, Lt. Peters executed an affidavit addressing the issues raised by the initial pro se complaint filed by Anthony LaMarca. Superintendent Turner was a party to the action at that date. The third paragraph of the affidavit reads:
Be it also known that this affiant has prepared this affidavit with full knowledge and sanction of all parties named as Defendants in the above referenced case number.
[19] Whites constituted a minority of the prison population (397 of 833 inmates) and those figures considered Hispanics as Whites. (P.Ex. 6)

[20] Consider, in addition to the similarities that Dr. Swanson testified to finding in the inmates' account of "wolfing" upon arrival, the similarities in the accounts given by those inmate plaintiffs who testified. Saunders was greeted by a "great multitude" of blacks in February, 1983, and described the scene as being like a "meat market" (Saunders, Pg. 536); LaMarca recalled catcalls from a "line of black inmates" about his being a "fat skinny white boy" (LaMarca, Pg. 948); and Aldred remembers 150 to 200 mostly black inmates pressing up to the fence and arguing about who would get him (Aldred, Pg. 893).
[21] Among the investigative procedures not used were: polygraphing of alleged victims and assailants; rectal examinations of victims; psychiatric and psychological examinations of the victims; thorough interviews of the victims by trained investigators. (Peters and Turner)
[22] Inspector Brierton made clear that immediate interviews of alleged victims was a critical step in any rape investigation in an attempt to amass as much intelligence as possible. This is what we, of course, would expect in any criminal investigation. (Brierton, Pg. 109)
[23] Durrance's rape lasted 35 to 40 minutes (Durrance, Pg. 461). Aldred's rape lasted 15 to 20 minutes (Aldred, Pg. 810).
[24] Turner testified that in regard to transfers, "I depended upon the classification team, that was their job." Turner obviously did not adhere to the classification teams' decision in the case of Larry Pryor.
[25] Peters also acknowledged that he knew that Dock and Bone, who raped Ronald Durrance, were wolves.
[26] While Defendants witness Inspector Brierton was apparently non-committal as to whether he would permit video pornographic movies to be viewed which show explicit scenes of vaginal and anal penetration (Brierton, Pgs. 101103), he did not hesitate in opining that he would investigate a movie event if inmates were heard moaning, crying or screaming. (Brierton, Pgs. 103-104).
Finally, it is noteworthy that Defendants did not offer a scintilla of evidence refuting that both the pornographic movies occurred and also that certain inmates were trapped into the setting and apparently victimized in the movie trailer. See, Devitt and Blackmar, Federal Jury Practice & Instructions, 3rd Ed., Vol. 2, § 72.17 (1977) ("If a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not.").
[27] No attempt was even made to enlist the assistance of any federal investigative or prosecutional body to address whether a federal investigation or prosecution could occur with regard to rapes and assaults against prison inmates at GCI. Title 18 U.S.C. § 241 makes it a federal crime for "two or more persons to conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."
[28] This data, reviewed at great length, (Swanson, Pgs. 21-244) provided: (1) internal archival documents generated from GCI (Ibid, Pgs. 21-29); (2) external documents generated from independent sources outside of GCI (Ibid, Pgs. 29-31); (3) interviews of Plaintiffs and inmate witnesses (Ibid, Pgs. 32-35); (4) interviews of correctional staff including Defendant Music (Ibid, Pgs. 35-36); and (5) a general tour of GCI. (Ibid).
[29] Dr. Caddy's investigation in this case included; (1) interviewing of the Plaintiffs and innate witnesses (Caddy, Pg. 1130); (2) administering an analysis of specific psychological tests (Ibid); (3) reviewing various internal GCI—DOC documents relating to the various Plaintiffs and Inmates (Ibid, Pg. 1131); and (4) reviewing of related professional literature in the field of rape. (Ibid)
[30] The general symptomology, discussed in greater detail as to each inmate reflects a post traumatic anxiety disorder consistent with rape syndrome (Caddy, Pg. 1244).
[31] In the instant case, three of the five sexual assaults upon the plaintiffs were reported by the victims, but simply were not followed through on by the correctional officials. The two inmates who did not report their assaults, the raped Durrance and the abused Bronson, testified credibly as to their reasons for not reporting. The first, Durrance, acted out of fear and lack of confidence that it would serve any purpose (Durrance, Pgs. 465-471); the sentence

completion test administered to Durrance reflected a fear of telling people what happened to him because of the great embarassment and discomfort of it (Caddy, Pg. 1224). Bronson did not tell because he had been warned not to, which warning he took to heart (Bronson, Pg. 700); additionally, he was aware of illicit dealings between his assailants and guards (Ibid, Pgs. 692 and 701).
Non-party witness Larry Brown testified that he did not tell a guard immediately after the rape because his assailants remained awake watching him from adjacent bunks (Brown, Pg. 845), but did tell a black guard the next day (Ibid, Pg. 847), and four days after the incident confirmed to Lt. Minor the lieutenant's assertion that Brown had "had a line as long as the dorm." (Ibid, Pg. 851).
[32] Courts have recognized the underreporting of rapes and sexual assaults within our prisons. See, e.g., United States v. Bailey, 444 U.S. 394, 426 n. 6, 100 S.Ct. 624, 643 n. 6, 62 L.Ed.2d 575 (1980) (Blackmun, J. dissenting) (If a kid who is raped tells the guards, "his life isn't worth a nickel"); Martin v. White, 742 F.2d 469, 473 (8th Cir.1984) (Statistics on inmate assaults reflect "merely the tip of the iceberg as many violent assaults never find their way into the record books."); Doe v. District of Columbia, 701 F.2d 948, 966 (D.C.Cir.1983) (Edwards, J., separate statement); State v. Green, 470 S.W.2d 565, 569 (Mo.1971) (dissenting opinion) cert. denied 405 U.S. 1073, 92 S.Ct. 1491, 31 L.Ed.2d 806 (1972) (Life of inmate of Missouri Training Center for Men who reports a rape not worth "a plugged nickel".)
[33] Federal Prison System, U.S. Department of Justice, Long Range Plan 1981-1985 (1981), in Bureau of Persons and the U.S. Parole Commission,: Oversight Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice, 97the Cong. 1st Sess. 45 (1981) (quotation refers to the Federal Prison System.
[34] Literature and research in the field support these conclusions that rape, at least in this context, is an assaultive and violent act rather than an event emanating from sexual gratification. See, e.g., D. Lockwood, Prison Sexual Violence at 105-6 (1980); A. Scacco, Rape in Prison at 47 (1975); A. Groth, Men Who Rape — The Psychology of the Offender, 126-41 (1981) ("In this study of men who rape men, we found their dynamics to be similar to those of men who rape women. What is immediately apparent about the sexual assailants is that none of them had to rape for sexual gratification.").
[35] See also, (Swanson, Pg. 59) ("Glades is hard time for white inmates"); (Ibid) ("He [Pryor] describes the pressure of white inmates. In order to pressure white inmates, blacks will sexually assault a white or threaten such assaults. Thereby they can gain money for protection."); (Ibid) ("Pryor reports sexual assaults were always black upon white. Never white upon black."); (Ibid, Pg. 63) ("He [Eddie Cobb] reported that Glades was easy time for blacks. He reported that the blacks were the aggressors and the whites were pursued.").
[36] A. Scacco, Rape in Prison, at 48.
[37] Witness Larry Brown was raped the first evening he was transferred to GCI. See, infra, ¶ 190. David Aldred was raped the second day at GCI See, infra, ¶ 123.
[38] Each of the following Plaintiffs were raped at knife point: Saunders, infra, ¶ 153; Durrance, infra, ¶ 133; Aldred, infra, ¶ 123; and Harper, infra, ¶ 162.
[39] Each of the following Plaintiffs were gang raped: Saunders, infra, ¶ 153; Durrance, infra, ¶ 133; and Aldred, infra, ¶ 123.
[40] As with the other plaintiffs who were raped, Aldred was raped by blacks. Dr. Caddy testified that because these were cross-race rapes, they are even more substantial issues because they bear on the propensity of the victims to then come to believe that profound racism is entirely acceptable, which tends to carry with the victims for years afterwards, perhaps never to dissipate. Whatever problems that might create in an everyday world, it may be an even more difficult problem in prison (Caddy, Pg. 1246).
Significantly, Aldred described his arrival at GCI as being greeted by "a tidal wave of niggers fighting over who would have me" (Swanson, Pgs. 70-71). He characterized the camp in an interview as being "a black camp run by black inmates" and as being 80 per cent nigger."

[41] Aldred's personality profile contains an elevated hypochondriasis scale. Dr. Caddy testified that this index is at least in part a reflection of the continued reporting that he experiences physical discomfort quite routinely in the rectal area if he has to strain to go to the bathroom, and even when he does not (Caddy, Pgs. 1173-1174).
[42] See also, P.Ex. 13, Section C (A medical chart, the second page of which contains an entry dated 7-25-84 that appears to read: "Patient feel (sic) afraid to [illegible] Glades C.I. He came for appointment with Dental Dpt. He request medication for his [illegible] ..." Another entry of the same date reads: "Subject reported to the OPC attempting to elicit help in changing institutional assignment. He was referred to the Class. Dept.").
[43] Heightened embarrassment about the rape still showed through in a sentence completion test administered by Dr. Caddy (Caddy, Pg. 1224).
[44] This behavior is consistent with Dr. Caddy's finding that, other than the fear that his son will find out about the rape, Durrance's greatest fear is being raped again (Caddy, Pg. 1225).
[45] Durrance additionally lost 20 more days gain time that he would have acquired if protective custody inmates were allowed to work (Durrance, Pg. 486).
[46] Among the documents submitted from plaintiff, Durrance's file as part of Defendants' Composite Exhibit 23, was a handwritten statement dated 4/16/84 and purportedly signed by Ronald Durrance, which read:
Dear Sir:
I'm requesting protective custody because I owe out $60.00 that I have no way of paying. I would rather not give out names, but I have no other choice (sic). Gator in [illegible] dorm Mark in C-dorm and a guy called Willie in B-Dorm. My life [illegible] in danger.
Thank you.
Also in the file submitted by the Defendants is a Report of Administrative Confinement addressing the initial refusal to go to work. Under the section on Classification Team Review and Action, the report reads as follows:
Team # 1 review (sic) inmate at approximately 7:00 a.m. on 4/3/84. Inmate Durrance advises that he owed inmate Stump some money while at U.C.I. three or more years ago and was transferred without paying. When Durrance arrived at G.C.I. he was met by Stump demanding payment. Durrance did not have the money ($40.00). Stump was released and transferred money to Willie Docks. (Sic) Durrance borrowed money from Mark to pay Dock. Inmate is now threating (sic) to collect with interest. Durrance expects to get an I.R.S. return to pay debt but want (sic) to go to Polk C.I.
Team # 1 does not feel this inmate is in fear but rather is engaging in manipulation to get a transfer. Team concurs (sic) with action taken; inmate is to remain in confinement for refusing to work until case is resolved.
[47] The monthly report for June appears to have a typographical error in its recitation of "231" jobs being filled: this becomes obvious when the figures for May (243) and July (247) are viewed against the minor turnover during the three-month period. In May, Turner had reported that the "high vacancy rate is down." (D.Ex. 14).
[48] Lt. Leo Peters, the institutional investigator, testified that the room in which Saunders said he was raped was so small that Peters bumped his head against the opposite wall one day recently while sitting on the commode. Dr. Caddy noted that when Saunders talked about being raped, he did not talk about being thrown to the floor, as had the others (Caddy, Pgs. 1311-1312). Saunders described his position during the penetration as "looking over the toilet, my hands on the wall," (Saunders, Pg. 553). The rapists, then, could have stood facing the commode much as a man would stand in front of it while urinating. In short, there is nothing in any of the testimony that is inconsistent with the conclusion that Martin Saunders was anally raped in the bathroom.
[49] According to documents contained within D.Ex. 15, Harper sought an obtained protective custody at Brevard Correctional Institution January 12, 1980 because of the presence there of a jail rapist against whom he claimed to have testified in Leon County, Florida, Circuit Court. He told a correctional official at Avon Park Correctional

Institutional March 1, 1981, that three black inmates raped him in the shower there February 28, 1981. Harper now does not remember making this allegation (Harper, Pg. 752). There is a notation on a "Page 8" of what appears to be a document from Baker Correctional Institution in which Harper is quoted under the "comments" section as having complained of being raped in the Alachua County Jail in Gainesville by someone who was then at Baker. Harper testified that he never made that statement (Harper, Pg. 750). Page 3 of what appears to be a document from Tomoka Correctional Institution prepared sometime subsequent to his arrival date there of September 13, 1984 alludes to a "prior statement" in which Harper acknowledged "sexually molesting" his own sister. A psychiatric report dated January 31, 1981 at Reception and Medical Center Hospital also noted that, "[a]ccording to his records, the patient practiced incest with his half sisters."
Other documents within Defendants' Exhibit 15 also recite that Harper has sought protective custody on several other occasions on the grounds of owing money and having been identified as a witness against other inmates.
[50] The court reporter transposed volumes of the transcript. The volume beginning with a cover sheet numbered 879 follows that volume beginning with a cover sheet numbered 1001. The citations are to the pages as they appear.
[51] Brown testified he arrived at GCI June 10, 1985 (Brown, Pg. 839), was raped during the predawn of the following day (Ibid, Pg. 840), and four days later was taken to see Lt. Minor (Ibid, Pg. 850). The earliest-dated record of any confinement, however, is the handwritten notation in the Classification Team Review and Action section of a Department of Corrections Report of Protective Confinement Form dated June 25, 1985, stating: "Inmate Brown was placed on A/C status 6-24-85 for bartering. I released him to population, but he wouldn't go. I recommend P/C status for investigation of his story." (D.Ex. 27, Flap B). Brown testified on cross examination that he had been in protective confinement before June 25 (Brown, Pg. 1018). The page in the exhibit immediately preceding the report quoted, supra, is a Transfer Order approving the shipment of Brown from the Reception and Medical Center to GCI. The Transfer Order is dated June 19, 1985. The credibility of his recollection of the rape incident, if not its precise day, is enhanced by the demeanor reported by Dr. Caddy during his interview of Brown. "Mr. Brown presented almost all of the testimony surrounding the sexual attack, and his subsequent feelings, both in tears and with such a level of emotional distress that virtually his entire body was constantly shaking for, and in fact continued to do so for a substantial period after the interview was completed." (Caddy, Pg. 1181).
[52] The June 21, 1985 request to Classification reads as follows:
I'm sure that you're aware of the incident that took place in A Dorm. I would like to have the information on how to file a grievance in this incident. I also need the proper forms to do this. I thank you for assistance in this matter.
[53] Although Brown is not a damage plaintiff in this action, Dr. Caddy, the Plaintiffs' expert clinical psychologist, nonetheless examined him and found him to have been terribly emotionally disordered as a result of the experience that he suffered at Glades, describing Brown's condition as one that Dr. Caddy feels Brown is going to have a great deal of trouble ultimately overcoming or resolving, especially in his present environment. His diagnosis of Brown was that Brown, as a result of the rape incident at Glades, suffers from post traumatic stress disorder (Caddy, Pg. 1183).
[54] Dr. Richard Swanson, the Plaintiffs' first expert, testified that he had interviewed all of the plaintiffs, as well as Larry Brown, in preparation for the trial.
I was also impressed by the heterogenity of the inmates I found.
Recalling how the inmates were constituted into a plaintiff class, as I understand the sequence of events, once the complaint had been filed by the original plaintiff, LaMarca, the class was notified through a notice sent throughout the system.
These people were then found by the attorney rather than them coming together and agreeing to file suit.
These inmates, in no way that I am aware, had talked about this case one among the other, so I was impressed that this was independent information that had not been checked one with the other inmates.
Most of these inmates did not know each other, and if they did, they had had (sic) not seen each other in a significant amount of time. (Swanson, Pg. 120).

Dr. Glenn R. Caddy, a clinical psychologist called by Plaintiffs as an expert, testified similarly:
Secondly, there is an integrity that comes from a commonality of reporting of incidents where essentially ten people, none of whom either knew each other prior to going to Glades nor who knew each other in Glades, are in a position to provide information about common experiences that provide an internal consistency to the general arguments of the circumstances surrounding the locations of the rape and the nature and the incidence of the rape. (Caddy, Pgs. 1242-1243).
[55] Dr. Swanson testified:
In several occasions, and all of these occasions involved inmates who had reported being raped at GCI, there was obvious emotional tension, anxiety, tearful problems in the inmate reporting the incident.
I was moved by how difficult it was for many of the inmates to talk about the rape process itself. (Swanson, Pg. 119).
[56] Dr. Caddy testified:
These men were raped ...
Those men that have reported being raped present essentially classic profiles of the consequence of rape.
I have no reason to believe that any of them have anywhere near the sophistication in my discipline to be able to, a priori, construct for themselves the sort of emotional state that would be necessary to maintain the integrity of that argument under circumstances where a person who has had a fair degree of training in this area is confronting them in a relatively confronting interview set about the circumstances of these incidents. (Caddy, Pg. 1242).
[57] The Eighth Amendment's ban on cruel and unusual punishment was first made applicable to the states by virtue of the Fourteenth Amendment in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
[58] Additionally, Defendants in their Pre-Trial Stipulation maintain as an issue of law which remains for determination by the Court:
5. Whether Eighth Amendment protection, cruel and unusual punishment, extends to isolated incidents of assault, robery and rape as alleged by Plaintiffs. In absence of a showing that these Defendants acted in a manner of deliberate indifference to conditions that would shock the conscience of the ordinary person, Plaintiffs cannot recover under the Eighth Amendment. (emphasis added). (Pg. 13, ¶ 5).
[59] Having found that Plaintiffs' claims do not represent ten isolated separate incidents, it is unnecessary to decide whether in Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) the Supreme Court, in affirming an Eighth Amendment violation relating to a single isolated incident has thus, sub silentio, repudiated the principle that an "isolated incident," by its very nature could never rise to the level of "callous indifference" rendering a prison official liable for acts that offend the constitution.
[60] Section 20.315(1)(c) provides as follows:
20.315. Department of Corrections
There is created a Department of Corrections.
(1) Purpose — The purpose of the Department of Corrections is to integrate the delivery of all offender rehabilitation and incarceration services that are deemed necessary for the rehabilitation of offenders and the protection of society. The goals of the department shall be:
(c) To provide an environment for incarcerated persons in which rehabilitation is possible. This should include the protection of the offender from victimization within the institution and the development of a system of due process and internal legality in institutions. (emphasis added).

[61] Defendants' position is set forth in their Pre-Trial Stipulation as an issue of law which remains for determination by the Court:
4. Whether Plaintiffs are entitled to recovery against Turner and Music under a theory of respondent superior which is not permissible under actions brought under 42 U.S.C. § 1983. (Pg. 13, ¶ 4).
[62] The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. U.S. Const. amend. XI.
[63] Section 111.071, Florida Statutes (1983) provides as follows:
111.071 Payment of judgments or settlements against certain public officers or employees
(1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to expend available fund to pay:
(a) Any final judgment including damages, costs, and attorney's fees, a;rising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply. If the action is a civil rights action arising under 42 U.S.C. s. 1983, or similar federal statutes, payments for the full amount of the judgment may be made unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally.
(b) Any compromise or settlement of any claim or litigation as described in paragraph (a), subject to the limitations set froth in that paragraph.
(c) Any reimbursement required under s. 111.07 for court costs and reasonable attorney's fees when the county, municipality, political subdivision, or agency of the state has failed to provide an attorney and the defendant prevails.
(2) For Purposes of this section, a "final judgment" means a judgment upon completion of any appellate proceedings.
(3) "Agency of the state" or "state agency," as used in this section, includes an executive department, a constitutional officer, the Legislature, and the judicial branch.
(4) This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits.
[64] In the category diagnosed as post traumatic stress disorder, which is one of the profound anxiety disorder categories of the Diagnostic and Statistical Manual of Mental Diseases, Vol. 3, the essential feature is the development of characteristic symptoms following a psychologically traumatic event that is generally outside the range of usual human experience. The characteristic symptoms involve re-experiencing the traumatic event, often a numbing of responsiveness to it or an excessive responding to it; a reduced involvement with the external world; and a variety of what is known as autonomic reactions, physiogic reactions, dysphoric mood and cognitive symptoms (e.g., reactions of rage, reactions of humiliation, reactions oriented towards aggression against the perpetrator of a violent act like rape) (Caddy, Pgs. 1238-1239).
[65] The essential features of the adjustment disorder class, according to the Diagnostic and Statistical Manual of Mental Disorders, Vol. 3, is a maladaptive reaction to an identified psychological stressor that occurs within three months after the onset of the stressor. The maladaptive nature of the reaction is indicated by the impairment in social or occupational functioning or symptoms that are in excess of a normal and expected reaction to the stressor. The disturbance is not merely one instance of a pattern of overreaction, or an exacerbation of an already existent disorder. It is assumed that the disturbance will eventually remit after the stressor ceases or if the stressor persists, when a new level of adaptation is achieved. The new level is classically to be achieved only as a result of a natural

remission that sometimes occurs in individuals, or alternatively as a result of a remission or reversal that occurs as a result of therapeutic intervention.
[66] § 794.011(1)(f), Florida Statutes (1983) provides as follows:
"Sexual battery" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.
[67] For the reasons discussed, supra, in the section on the underreporting of rapes, the Court is of the mind, although it is unnecessary here to so hold, that a number of additional homosexual rapes did occur at GCI.

 
 c.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, MARTIN . SAUNDERS, and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON, and BILLY JOE HARPER individually,

LaMarca v. Turner PC-FL-007-001

Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, individually and in his capacity as Superintendent of Glades Correction Institution, and RANDALL MUSIC, individually and in his official capacity as Secretary of the Florida Department of Corrections, and the STATE OF FLORIDA,

Defendants.

THIRD AMENDED COMPLAINT FOR- DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

1. The initial three named plaintiffs, Anthony LaMarca, Martin Saunders, and Edwin Johnson, present or former inmates of Glades Correctional Institution (hereinafter, GCI) located in Belle Glades, Florida , and operated by the Florida Department of Corrections, sue for declaratory and injunctive relief on their behalf and on behalf of others similarly situated who are, have been, or will be incarcerated by GCI. They additionally, joined by the other named plaintiffs, sue

RE 025

for damages. The suit is based on "tne negligence, gross negligence and deliberate indifference of the defendants, which has resulted in a violent, lawless atmosphere within GCI, in which the plaintiffs and others have suffered physical attacks, robberies, extortion and homosexual rapes. The only refuge that the plaintiffs have from the violence and lawlessness is a protective confinement situation in which conditions fall so far below standards as to constitute cruel and unusual punishment.
JURISDICTION 2. This is a case arising under 42 U.S.C. §§ 1983 and 1988 and the Eighth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded on 28 U.S.C. §§ 1331(a) and 1343(3) and (4).
CLASS ACTION ALLEGATIONS 3. This action is properly maintainable as a class action for injunctive relief pursuant to Federal Rules of Civil Procedure 23(a)(l)(2)(3) and (4), (b)(l)(B), (b)(2) and (b)(3). An order certifying the class for injunctive relief was entered April 13, 1984. 4. The class for injunctive relief consists of those approximately 800 inmates presently incarcerated in GCI or those inmates within the Florida prison system who may in the future be incarcerated at GCI. 5. The named plaintiffs are representative of the class in that they have suffered attacks, robberies, extortions, and homosexual rapes as a result of the violent atmosphere created
-2-
RE 026

at GCI as a direct, natural and proximate result of the negligence, gross negligence and deliberate indifference of the defendants.
6. The questions of law and fact common to the named plaintiffs and to the other members of the class are:
a. whether the conduct of the defendants constitutes negligence, gross negligence or deliberate indifference to the safety of the plaintiffs and others similarly situated, and
b. whether the conduct of the defendants constitutes negligence, gross negligence or deliberate indifference so as to violate the rights of the plaintiffs under the Eighth and Fourteenth Amendments to the United States Constitution.
7. As to the requirements of Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3):
a. the merits of resolving the claims of the named plaintiffs as a class action outweigh the interest of members of the class in individually controlling the prosecution of separate actions and, in fact, other members and former members of the class now seek to join this suit as co-plaintiffs to resolve similar damage claims;
b. there is no other litigation involving the rights of the members of the class that is advanced as far as this action, which is set for trial in December, 1985;
c. economy of judicial resources will be served by resolving this action before a single forum; and
d. because all of the members of the class are institutionalized, and because all have been given notice,
-3-
RE 027

there are no problems in the management of this action as a class action.
STATEMENT OF DEFENDANTS' WRONGFUL PRACTICES 8. a. Defendants, R. V. TURNER, and now RANDALL MUSIC, have operated GCI negligently, grossly negligently and with deliberate indifference to the safety of the plaintiffs, and of other inmates, in violation of 42 U.S.C. § 1983 and of the Eighth and Fourteenth Amendments to the United States Constitution.
b. The STATE OF FLORIDA is a party to this lawsuit solely for purposes of any potential attorney fee and litigation expenses award pursuant to 42 U.S.C. § 1988, (Civil Rights Attorney's Fees Awards Act of 1976) as provided in LegRett v. BadRer. 759 F2d 1556 (11th Cir. 1985). Any other reference to "Defendants", other than matters relating to attorney fees/litigation expenses, in this Complaint expressly does not relate to the STATE OF FLORIDA.
FACTS GENERAL TO THE CLASS 9. GCI is a Florida state prison housing inmates of various custody classifications, from minimum to close custody, which inmates all bunk in common barracks-type areas without any segregation of inmates according to either criminal histories, length of sentences, custody classifications, or known propensities for violence and/or aggressive homosexual behavior. 10. Defendants, at all times material acting under color of state law as superintendants of GCI, have failed, either
through negligence, gross negligence or deliberate indifference -4-
RE 028

to: a. adequately staff the barracks with guards to
prevent attacks, robberies, homosexual rapes and extortions; b. report to superiors within the Florida Department
of Corrections the level of attacks, robberies, homosexual rapes and extortions;
c. punish and or prosecute those engaged in attacks, robberies, homosexual rapes and extortions;
d. provide adequate protection to inmates in legitimate fear of attacks, robberies, homosexual rapes and extortions;
e. segregate from other inmates those inmates known to have a propensity to commit attacks, robberies, homosexual rapes and extortions;
f. keep weapons out of the hands of those inmates with a propensity to commit attacks, robberies, homosexual rapes and extortions;
g. adequately train correctional officers; h. and/or otherwise provide adequate security to those inmates incarcerated at GCI.
FACTS SPECIFIC TO THE NAMED CLASS PLAINTIFFS 11. Plaintiff, Anthony LaMarca, initially arrived at GCI in 1980. Although subsequently released, he has been relncarcerated within the Florida prison system and there is a real and concrete possibility that he will be transferred back to GCI.
-5-
RE 029

12. After his initial arrival at GCI, plaintiff, LaMarca was approached by other inmates who insisted he participate in homosexual acts. When he refused, he was physically attacked. Defendant, Turner, knew or should have known of the plight of plaintiff, Anthony LaMarca, but did nothing to protect him from attacks, robberies, homosexual rapes and extortions. Rather, plaintiff, Anthony LaMarca was forced to defend himself, the defenses being considered fights that resulted in disciplinary confinement and a loss of good-behavior time.
13. Plaintiff, Martin Saunders was an inmate at GCI since February, 1983. He is presently incarcerated at South Florida State Hospital, but there is a real and concrete possibility that he will be transferred back to GCI.
14. After his initial arrival at GCI, plaintiff, Martin Saunders was extorted for protection money by two inmates who attacked him when he refused payment. He additionally was beaten, robbed at knifepoint, stabbed in his face and raped at knifepoint by other inmates.
15. Plaintiff, Edwin Johnson, was an inmate at GCI beginning in February 1983. He is presently incarcerated at Hollywood Community Center, but there is a real and concrete possibility that he will be transferred back to GCI.
16. Upon his initial arrival at GCI, plaintiff, Edwin Johnson, had begun to be solicited by other inmates to engage in a homosexual act with other inmates, which solicitation continued and resulted in plaintiff's being physically attacked and threatened with a knife.
-6-
RE 030

17. When plaintiff, Edwin Johnson, sought protective custody, he was placed with two other inmates in a cell that was six-by-nine feet, was unventilated, insect infested, foul

smelling and filthy. During his period of protective custody,

plaintiff, Edwin Johnson was not permitted to shower more than

three three-minute periods a week, to sleep on a bed, to change his clothing, or to leave his cell for any purpose. Further, he was not permitted to participate in any educational,

cultural, religious or rehabilitative activities. He was not

permitted to withdraw money from his account, to purchase

cigarettes or toilet articles from the canteen, or to exercise. He was so confined and restricted for a protracted period of time.

18. The injuries and deprivations experienced by

plaintiffs, Anthony LaMarca, Martin Saunders and Edwin Johnson,

and similar injuries and deprivations experienced by others similarly situated, are the direct, natural, foreseeable and proximate result of the actions of defendants, R.V. Turner and

Randall Music, as more particularly alleged in Paragraphs 8 and

10, and of the conditions alleged in Paragraph 9.

FACTS SPECIFIC TO THE ADDITIONAL NAMED PLAINTIFFS

19. Plaintiff, David Aldred, was on or about July 21,

1984, hit on the head and raped twice as he took a shower in

Dormitory B. A guard, whose identity is presently unknown,

could have prevented the attack, but instead remained inside a

cage-like device known as a wicket. Plaintiff ALDRED had

requested protective custody before the attack. A Lieutenant

denied the request.

-7-
RE 031

20. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

- 8
RE 032

(xiii) control of contraband;

xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate notification to his superiors

concerning:

(a) racial imbalance among the inmate

population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the incident, the occurrence of which was a direct,

natural, proximate and foreseeable result of the actions of

defendants alleged with particularity in Paragraphs 8 and 10,

and the conditions alleged in Paragraph 9, plaintiff, David

Aldred, has been damaged, to wit: he has suffered injuries to

his lower back, mental anguish, and psychiatric disturbances

that have manifested themselves in his attempted suicide, which

injuries are continuing and permanent in nature.

21. Plaintiff, Steve H. Bronson, Jr., also known as Nancy

Sue Bronson, in or about June 1982, was held down by a group of

inmates in B Dormitory while one, known as "Mack," inserted the

handle of a baseball bat. in his rectum as punishment for
plaintiff, Steve H. Bronson, Jr.'s refusing to work for Mack as

a male prostitute. Plaintiff Bronson, a homosexual, required

special protection within the prison compound because of his

-9-
RE 033

vulnerability to inmate attacks. Because of the lack of

security, he was extorted and ultimately assaulted.

22. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(lv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts; -10-
RE 034

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the incident alleged in paragraph 21, which incident

was the direct, natural proximate and foreseeable result of the

conduct by defendant, R. V. TURNER alleged particularly in

Paragraphs 8 and 10 and the conditions alleged in Paragraph 9,

plaintiff, Steve H. Bronson, Jr., was damaged, to wit: he

suffered rectal bleeding and mental anguish, which injuries are

continuing and permanent in nature.

23. Plaintiff, Eddie Cobb, was on or abut January 27,

1984, stabbed in the arm by inmate Larry Pryor, who, upon

information and belief, was acting upon the instructions of a

"Lt. Barrett," of whom-defendant, R.V. Turner, was the

supervisor. No criminal charges were instigated against the

inmate, Larry Pryor, notwithstanding the knowledge of his

identity by defendant, R.V. Turner. Plaintiff COBB was

attacked and stabbed several times with a knife by a known

violent prisoner. This incident was investigated; however,

Plaintiff COBB was given no opportunity to bring criminal

-11-
RE 035

charges against his assailant. Plaintiff COBB was placed into

administrative confinement for several weeks after the attack

and was not informed of the reason for his confinement. His

assailant was released into the general population.

24. a. This assault and the subsequent confinement

without informing the inmate of the reasons for his confinement

resulted from Defendant TURNER'S failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

-12-
RE 036

(xi)

adequate response to inmates1 requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the conduct of inmate Pryor and Lt. Barrett, which

conduct was the direct, natural, proximate and foreseeable

result of the conduct by defendant, R.V. Turner alleged

particularly in Paragraphs 8 and 10, and the conditions alleged

in Paragraph 9, plaintiff, Eddie Cobb, has been damaged, to

wit: he suffered injuries to his head and right arm, which

injuries are continuing" and permanent in nature.

25. As a direct, natural, proximate and foreseeable result

of the conduct of inmate Pryor and Lt. Barrett, which conduct

was the direct, natural, proximate and foreseeable result of

the conduct by defendant, R.V. Turner alleged particularly in

Paragraphs 8 and 10, and the conditions alleged in Paragraph 9,

plaintiff, Eddie Cobb, further has been damaged, to wit: he

suffered a deprivation of his rights under the Eighth and 13-
RE 037

Fourteenth Amendments to the United States Constitution to be

fre.e from punishment without due process of law.

26. Plaintiff, Ron Durrance, was in or about March, 1984

raped at knifepoint in the shower of B dormitory by inmates whose identities, upon information and belief, are Willie Dock, Sr., "Bull" Williams, and "Bone." Although the identities of

the assailants were reported to prison officials, no punishment

or criminal prosecution ensured. After the attack, Plaintiff

DURRANCE requested protective confinement from a security staff member. The officer refused to believe that the was attacked and neither investigated Plaintiff DURRANCE'S charges nor

granted him protection.

27. a. This assault resulted from Defendant TURNER'S failure to provide:

(i) personnel;

an adequate number of security staff

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

RE 038

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the rape alleged in Paragraph 26, which rape was the

direct, natural, proximate and foreseeable result of the

conduct by defendant, R.V. Turner alleged particularly in

Paragraphs 8 and 10, and the conditions alleged In Paragraph 9,

plaintiff, Ron Durrance was damaged, to wit: he has suffered

from an aggravation of hemorrhoids and mental anguish, which

-15-
RE 039

injuries are continuing and permanent in nature.

,28. Plaintiff, Wayne Epprecht, was in or about February

1982 robbed and beaten with a lead pipe by unknown inmate

assailants at GCI. The guard on duty was not present. The

inmates who had attacked him were known to be violent as they

had assaulted others.

29. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

-16-
RE 040

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the robbery and beating alleged in Paragraph 28,

which robbery and beating were the direct, natural, proximate

and foreseeable result of the conduct by Defendant, R.V. Turner

alleged particularly in Paragraphs 8 and 10, and the conditions

alleged in Paragraph 9,' plaintiff Wayne Epprecht, has been

damaged, to wit: he suffered a broken left cheek bone, which

required surgery and still requires further surgery and

continues to experience pain and suffering, all of which

injuries are continuing and permanent in nature.

30. Plaintiff, Michael Gordon, in or about 1984, was

beaten on one occasion; beaten and robbed on another; and sot

-17-
RE 041

on fire on another. .31. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification.errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

-18-
RE 042

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the incidents alleged in Paragraph 30, which

incidents were the direct, natural, proximate and foreseeable

result of the conduct by defendant, R.V. TURNER alleged

particularly in Paragraphs 8 and 10, and the conditions alleged

in Paragraph 9, plaintiff, Michael Gordon, has been damaged, to

wit: he suffered pain and suffering, dental fractures, and

mental anguish, resulting in hypertension, which injuries are

continuing and permanent in nature.

32. Plaintiff BILLY JOE HARPER was an inmate at Glades

Correctional Institution ion 1982. On the night he was

transferred to Glades Correctional Institution on December 31,

1981, Plaintiff HARPER was raped and beaten. During his 12

month incarceration at Glades Correctional Institution he was

continually extorted. Because of his age (22) and background,

plaintiff HARPER should have been protected by the prison staff

during his incarceration.

-19
RE 043

33. a. Plaintiff HARPER'S assault, subsequent extortion

and. lack of protection resulted from Defendant TURNER'S failure

to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vil) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

-20-
RE 044

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the attack on plaintiff HARPER alleged in Paragraph

32 which attached was the direct natural, proximate and

foreseeable result of the conduct of Defendant, R.V. Turner

alleged particularly in Paragraphs 8 and 10 and those

conditions alleged in Paragraph 8, Plaintiff BILLY JOE HARPER

has been damaged, to wit: severe psychiatric and emotional

disturbances.

CLAIMS FOR RELIEF

34. Defendants' conduct, as more particularly alleged in

Paragraphs 8 and 10, and the conditions at GCI, as alleged in

Paragraph 9, constitutes cruel and unusual punishment of the

named plaintiffs and others similarly situated, and thereby

violates the Eighth and Fourteenth Amendments to the United

States Constitution.

35. Defendants' conduct irreparably injures plaintiffs and

their class and will continue to irreparably injure them unless

enjoined by this court. Plaintiffs have no adequate remedy at

-21-
RE 045

r

DATED: 07 November, 1985

DAVID M. LIPMANf (J,ead Counsel) ROBERT E. WEISB!
LIPMAN & WEISBERG 5901 S-W. 74 Street Suite 304 Miami, Florida 33143-5186 (305) 662-2600
WILLIAM AMLONG HALL & AMLONG Fourth Floor - East 524 S. Andrews Avenue Ft. Lauderdale, Florida 33301 (305) 467-8505
ATTORNEYS FOR PLAINTIFFS

-23-
RE 047

r

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, MARTIN SAUNDERS, and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON, and BILLY JOE HARPER, individually,

Plaintiffs,

vs.^

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, individually and in his capacity as Superintendent of Glades Correction Institution, and RANDALL MUSIC, individually and in his official capacity as Secretary of the Florida Department of Corrections, and the STATE OF FLORIDA,

Defendants.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that Plaintiffs1 Third Amended Complaint has been mailed to the following counsel of record:

WALTER M. MEGINNISS
Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301

MICHAEL B. DAVIS

DAVIS, CRITTON, HOY & DIAMOND

Post Office Box 3797

West Palm Beach, Florida 33402

-.

/

/

rx (/ /

DAVID M. LIPMAN \ WILLIAM R. AMLOUGj KAREN COOLMAN AMLONG

RE 048

DATED: 07 NOVEMBER, 1985 0086L

ATTORNEYS FOR PLAINTIFFS

RE 049

 
 UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 82-8196-CIV-PAINE

ANTHONY LAMARCA, MARTIN SAUNDERS and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H* BRONSON, JR., EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON and BILLY JOE HARPER,
Plaintiffs,
vs.
R. V. TURNER, individually, and CHESTER LAMBDIN, as Superintendent of Glades Correctional Institution,
Defendants.

AMENDED RESPONSE OF DEFENDANTS,
INCLUDING OBJECTIONS, TO MAGISTRATE'S REPORT
AND RECOMMENDATIONS

PREFACE In Section I, the issues of the Magistrate's failure to grant a continuance, failure to grant a jury trial, and failure to enter a recusal are addressed. These issues were raised either pre-hearing, in respect to the first two, or during the course of the evidentiary hearing, in respect to the last. The failure to grant a jury trial was addressed in the Report and Recommendations; the other two issues were not addressed in that document. In the Objections to the Findings of Fact, the Defendants note that a shockingly large number of factual findings by the Magistrate are predicated upon testimony or exhibits which not only fails to support the conclusions, but actually support the opposite
LaMarca v. Turner

LAW OFFICES OF DAVIS CRITTON HOY £ DIAMOND SUITE IOIO FORUM HE, 1655 PALM 6 EACH LAKES BOULEVARD, WEST PALM BEACH, FLORIDA 3 3 1 O I • TEL. (3O S) -078 - E4OO

conclusions.-^ In respect to a large number of his other findings, the Magistrate has asserted that there was an absence of evidence to establish certain facts favorable to the defense when the record was actually replete with such evidence -- much of it contained in exhibits offered by the Plaintiffs.^ Finally, the Magistrate's Report assiduously avoids consideration of any of the positive evidence offered by the Defendants to establish that TURNER'S conduct and policies fully reflected his concern with the welfare of the inmates and the proper operation of the institution.^ Many of the Magistrate's findings place heavy reliance upon the direct testimony of Dr. Swanson, the Plaintiffs' expert witness, who based his opinions upon data which was narrow in its focus and who was often shown, on cross-examination, to have ignored, misread or overlooked much of the data which he did purport to rely upon.

The Defendants would contend that a fair review of the entire body of evidence, including not merely the testimony of Plaintiffs themselves and the direct testimony of. Drs. Caddy and Swanson, but also the testimony of the defense witnesses including, among others, TURNER himself, Lt. Peters, and the the 9 inmate-witnesses who were not interested parties reveal a picture substantially at variance with that painted by the Magistrate which drew upon evidence that was selective, often substantially lacking in credibility and often misrepresented. A fair review of the evidence, the Defendants contend, would reveal that GCI was an institution which, while not ideal, was at least as acceptable from a

1/

Examples include, but are not limited to: Peter's testimony as to the standard procedures at GCI involving

rape investigations; the inclusion of Hispanics in figures for the white inmate population; Swanson's testimony

as to whether GCI records revealed instances of sexual assaults; the alleged lack of training of correctional

officers founded upon citation to weapon's incident reports; Peter's and Turner's testimony as to officers

patrolling dormitories; Turner's testimony as to whether officers were disciplined for rules violations;

testimony by Peters as to the number of prosecutions for sexual assaults; the Inspection Report relating to

confinement cell conditions; testimony by Peters as to inmate prosecution for weapon's possession; Peter's

testimony regarding post orders forbidding the hanging of sheets over beds.

2j

Examples include: testimony relating to contraband control measures; statistics and instances on prosecutions

in State criminal proceedings and Department disciplinary proceedings of contraband cases; statistics and

instances of prosecution of inmates in disciplinary proceedings for violating pass restrictions.

3/

Testimony by Turner and others revealed, in addition to the various measures aimed at enforcing restrictions,

such positive actions as substantial improvements in facilities, institution of a wide range of activities to

occupy inmates and thereby reduce the tensions in prison life, and personal involvement by Turner in inmate

problems and affairs.

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constitutional standpoint as a majority of prisons in this country and better than many. What problems existed at GCI were primarily the result of limited funding, excessive population pressures and an older physical plant that may not have reflected the state of the art in penalogy. These root problems were not within the capacity of any superintendent to resolve. Yet the record revealed that TURNER acted with capability and ingenuity in his efforts at utilizing the limited resources available to him and in expanding those resources. He coupled this with vigorous enforcement of procedures aimed at reducing the threats posed by inmate violence and possession of contraband (threats which are universal and endemic in correctional institutions throughout this country).
In the Objections to the Conclusions of Law, the Defendants note that while the Report and Recommendations pays lip service to the legal standard — now well-established by a series of Supreme Court decisions — requiring a showing of intentional conduct or, at the least, reckless disregard or deliberate indifference by a prison official to support a claim alleging third party assaults under 42 USC Section 1983, a number of the cases relied upon by the Magistrate (particularly those where he attempted to draw a factual parallel to the allegations made in this case) are either expressly or impliedly founded upon a negligence standard now repudiated by the Supreme Court. As those cases adhering to the reckless disregard standard make clear, even if the Plaintiffs had been able to support a majority of their contentions in respect to procedures and conditions at GCI, they would not have succeeded in meeting their burden of proof that TURNER'S conduct reached the degree of deliberate or reckless indifference necessary to support liability. Furthermore, not only was there a failure to establish deliberate or reckless indifference, but there was also a failure to meet the requirement of establishing a causative nexus between each claimed assault and the existence of allegedly unconstitutional conditions at GCI. Finally, the Defendants note that the Magistrate adjourned consideration of the class action issues, including that for injunctive relief, during the course of the proceedings before him. Under that circumstance,
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it was not proper for him to make recommendations in respect to the injunctive issues without allowing the Defendants the opportunity to provide evidence thereon.
In making reference to the Transcript, this Response gives the name of the witness preceding each page citation. This is necessitated by the fact that the Transcript numbering does not follow in uniform order. Thus, the Transcript of the case-in-chief of the Defendants begins anew at page 1 rather than picking up at the next page number following the Plaintiffs' case-in-chief.
Finally, this Amended Response and Objections is filed to correct the errors, primarily typographical, in the original Response. Due to problems with the printer used on this project, it was necessary to file an unedited draft of portions of the Response. That has now been corected herein.
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I. OBJECTIONS TO PARTICULAR LEGAL ISSUES A. Failure to Grant a Trial bv Jury
On November 25, 1985, the Magistrate issued an Order denying Defendants' jury demand. In the Report and Recommendation, the reasoning for the denial is set forth for the first time beginning at page 6. Citing Cox v. C.H. Masland and Sons, Inc., 607 F.2d 138, 142 (5th Cir. 1979), and with a footnote reference to Rule 38(b), Fed. R. Civ. P., the Magistrate reasons that the right to jury trial may be waived if not demanded within ten days of the "last pleading directed to such issue." Where there has been such a waiver, it is reasoned that the right to trial by jury of all matters waived in the initial pleading may not be later reviewed by amending the prior pleadings. But, it is recognized (page 8) that a jury trial may be demanded for new issues raised in amended pleadings.—'
The Magistrate notes that an Answer to an Amended Complaint was filed November 2, 1983. As neither Plaintiffs nor Defendants demanded a jury trial, he concludes that the right was waived [page 9] — forever. No attempt to analyze Plaintiff's Second Amended Complaint was made. Instead, the Magistrate, relying on Parratt v. Wilson, 707 F.2d 1262, tries to justify the denial by applying the provisions of Rule 39(b), Fed. R. Civ. P., which permits a discretionary granting of a jury trial after the time allowed to make the demand under Rule 38(b). This is not a Rule 39(b) case, and the factors outlined in Parratt v. Wilson, supra, do

4/

Relied upon by the Magistrate are Walton v. Eaton Corp.. 563 F.2d 66 (7th Cir. 1975) [new allegation that

the plaintiff suffered mental and emotional injury to support claim for compensatory damages in equal

employment opportunity case not considered a new issue as first complaint, in addition to request for punitive

damages contained a request for general relief]; Hostrop v. Board of Junior College District No. 515. 523 F.2d

569 (7th Cir. 1975) [adding a new count alleging a breach of contract right where prior pleading contained

allegations of employment termination in violation of contract right did not present a "new" issue]; Trixler

Brokerage Co. v. Ralston Purina Co.. 505 F.2d 1045 (9th Cir. 1974) [new sixth and seventh claims for relief

elaborating on bad faith alleged in the fifth claim in a prior pleading did not raise a "new" issue]; Lanza v.

Dressel and Co.. 479 F.2d 1277 (2d Cir. 1973) ["new" issue not presented in new amendment relating to

fraudulent inducement to exchange stock]; Williams v. Farmers and Merchants Ins. Co.. 457 F.2d (8th Cir.

1972) [in suit on insurance policy, amended answer alleging new increase of hazard defense presented new

issue on which request for jury trial should have been granted]; Connecticut General Life Ins. Co. v. Breslin.

332, F.2d 928 (5th Cir. 1964) [amended answer raising an affirmative allegation that death of insured was not

effected through accidental means but by causes reasonably foreseeable did not present new issue where

original answer contained a denial of plaintiffs allegations that insured died as a result of accidental means].

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not apply and are indeed irrelevant.*^ At the time the demand for jury trial was made, there was pending before the court Defendants' Motion for More Definite Statement filed October 7, 1985, addressing the Second Amended Complaint. On October 23, 1985, Plaintiffs served a response in which they attempted [as noted in the Report and Recommendation] to supply a "factual overview" with respect to the request for more information. Before any ruling on the Motion for More Definite Statement, Defendants in an abundance of caution, served their demand for jury trial on November 6, 1985, to apprise the Magistrate and Plaintiffs that their answer would, when served, seek to have trial of the case before a jury.
On November 15, 1985, Plaintiffs filed a Motion for Leave to file a Third Amended Complaint. Ten days later, the Magistrate at a status conference approved the new complaint. With the filing of the Answer to Plaintiffs Third Amended Complaint on November 27, 1985, the action came to issue - four days before trial. A demand for jury trial was contained therein.
The Third Amended Complaint introduced seven new Plaintiffs claims for damages because of tortious conduct on the part of fellow inmates.^ The Magistrate concludes [page 11] that the only new issues raised in the Second and Third Amended Complaints would relate to the additional plaintiffs, saying,

Sj

The irrelevance of the Parratt factors are readily discernible. Taking them in order - (1) Whether the case

involves issues best tried by a jury - damages from assault would be; (2) Whether granting of the motion (39b

motions) would disrupt court's schedule or that of adverse party - the Magistrate permitted new complaints

for damages of seven new plaintiffs at the original plaintiffs' behest. Any interruption would be created by

plaintiffs. The paramount consideration should not be disruption but whether defendants are to be permitted

the opportunity to face the new challenges; (3) The degree of prejudice to the adverse party - again the

adverse party filed the new complaints; prejudice, therefore, should be evaluated from defendants perspective,

i.e. opportunity to defend; (4) Length of delay - normally, a defending party is afforded an opportunity to

prepare. A delay until January , 1986, as requested, would not have been an unduly long delay under the

circumstances; (5) Reason for tardiness in requesting a jury trial - for two reasons, application of this factor is

absurd. In no way should the defendants be required to foresee new claims two years in the future. Second,

the waiver, on which the Magistrate seeks to preclude defendants, occurred with respect to damage claims of

the three original plaintiffs. They should not be permitted to deny defendants their constitutional right as to

seven new claimants.

6/

The Second Amended Complaint, dropped Secretary Wainwright as a party; seven new Plaintiffs were added;

however, the Third Amended Complaint dropped Keith Harris as a plaintiff and added Billy Joe Harper

causing Defendants to be concerned with eight new Plaintiffs.

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...However, since evidence pertaining to the injuries suffered by additional plaintiffs at GCI would be introduced irrespective of the pleading amendment as support for Plaintiffs' injunctive relief, no new issues are raised. [Page 12] Such conclusion defies logics.-' True the Third Amended Complaint seeks injunctive relief and the new plaintiffs could testify as to their experiences on separate dates while at Glades Correctional Institution. They were not added, however, solely for injunctive relief. The Third Amended Complaint is quite specific. In the first paragraph, it is stated that the initial three named Plaintiffs, Anthony LaMarca, Martin Saunders and Edwin Johnson, sue for declaratory and iniunctive relief on their behalf and others similarly situated who have been, or will be incarcerated by GCI. Then it is stated: They additionally, joined by the other named plaintiffs, sue for damages. Of the seven new plaintiffs, four allege some form of injury in incidents occurring well after November 2, 1983, when the answer to the Amended Complaint was filed. For instance, it is alleged that David Aldred was assaulted (assailants not alleged) and raped on July 21, 1984; that Eddie Cobb was assaulted by inmate Pryor on January 27, 1984; that Ronald Durrance was sexually assaulted in March (day not alleged) 1984; and that Michael Gordon was assaulted and robbed during 1984 (no month or day alleged). While the other three allege tortious incidents occurred prior to November 2, 1983, their claims present new issues. They were strangers to the action prior to the new complaints. Each of the seven, to receive relief by way of damages, must establish: (a) that the incidents did occur; (b) if they did occur, who was liable; (c) causation between the occurrence and conduct on the part of TURNER; and (d) if liability is established, in what amount. All of these issues are typical jury decisions new to the action introduced through the Third Amended Complaint, and the introduction of
Guargando v. Estelle. 580 F.2d 748, 753 (5th Cir. 1978) holds that amendments presenting new issues will give rise to jury trial. The term new issues means new issues of fact and not new theories of recovery. See also Swofford v. B ic W. Inc.. 34 F.R.D. 15 (S.D. Tex., 1983); Munkocsv v. Warner Bros. Pictures. Inc.. 2 F.R.D. 380 (E.D.N.Y. 1942), trial by jury granted in new issues raised in amended complaint to the same effect Warner and Swasev Company v. Held. 256 F. Supp. 303 (E.D. Wis. 1966); in Cataldo v. E.I. DuPont De Nemouss & Co.. 39 F.R.D. 305 (S.D.N.Y. 1966) trial court recognized right of trial by jury on new count of breach of warranty and exercised its discretion to permit jury trial on original negligence cause of action; see also Curry v. Pyramid Life Ins. Co.. 271 F.2d 1 (8th Cir. 1959).
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the new Plaintiffs' testimony as support for the class injunctive relief claim does not prove their individual claims.
In effect, the ruling of the Magistrate precluded the constitutional right to trial by jury on claims unknown to Defendants until the eve of trial. This it is respectfully submitted was error.
B. Failure to Grant Continuance The record in this cause demonstrates that the case was not ready for trial (evidentiary hearing) and that the request for continuance should have been granted. At a hearing before the Magistrate on October 7, 1985, counsel for Plaintiffs assured the Court that they were ready for trial. At that hearing, seven new Plaintiffs had been joined with each alleging separate claims for damages. A motion for more definite statement was filed by Defendants the same date. In November, 1985, leave to file a Third Amended Complaint was requested in which still another Plaintiff, Billy Joe Harper, was added. Keith Harris, a Plaintiff in the Second Amended Complaint, was dropped. On November 25, 1985, the Third Amended Complaint was approved and trial set to begin one week later. The following day, counsel for the parties journeyed to GCI so that Plaintiffs could depose Randall Music, Superintendent, and Defendant, R. V. TURNER. About this time, it was learned that a new witness, Larry Brown, had been added to Plaintiffs' Petition for Habeas Corpus Ad Testificandum. The Order of November 21, 1985 will, if carefully examined, reveal that his name had been typed in after its preparation. Fortunately, while Defendants were not able to arrange for his deposition, a notarized statement was taken while all counsel were present at GCI. On November 27, 1985, an answer was prepared and filed, bringing the action to issue on the Third Amended Complaint. On the 29th, counsel journeyed to Miami to depose Plaintiffs' expert, Dr. Richard Swanson, who was then preparing- for trial but had not completed his review of the records in preparation for trial. A second expert, Dr. Glenn R. Caddy, who testified at length on his psychological evaluation of the seven complaints, had to
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be deposed during the evening of December 5, 1985, after commencement of the trial. Like Swanson, Caddy had not completed his evaluation until the weekend before trial.
During the period of Noember 13-15, 1985, Defendants were able to depose the seven new Plaintiffs, beginning at Union Correctional Institutional at Raiford and ending in Fort Lauderdale. Witnesses having knowledge of the new Plaintiffs' claims were revealed, but no opportunity to depose them was available because of the firm trial date set for December 2, 1985. These included Levi Fisher, Willie Dock and Greg Zatler. Discovery was also hampered by the burdensome requirement to produce more than 12,000 pages of documents from the Department of Corrections — not a party to this action. In short, Defendants did not have a valid opportunity to prepare its case -- but more importantly, Plaintiffs were not ready either.
At the end of Plaintiffs' case, the Magistrate noted that all of their evidence pertained to individual damage claims. Since the Plaintiffs were unprepared to present evidence on the injunctive relief claims, the Magistrate "adjourned consideration" of the class action issues. Yet, until the announcement in the course of the trial that the Plaintiffs were unprepared to proceed on these issues (Swanson, p. 244-250), the Defendants had to proceed under the assumption that they must be prepared to defend not only the individual claims but the class action injunctive claims as well.
In short, the Defendants were compelled to go to trial on eight damage claims, newly asserted, for which adequate discovery was impossible, and Plaintiffs were not, in fact, prepared to try the whole case.
For these reasons, it is respectfully submitted that error was committed and a new trial de novo be granted.
C. Refusal of Magistrate to Recuse Himself During the course of the examination of Dr. Swanson, it became obvious to defense counsel that the Magistrate — who had visited GCI several years before during the pendency of the suit when LaMarca's was the sole claim -- was inclined to rely upon events that he
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stated had transpired sometime during the day of that visit as evidence tending to establish either knowledge of alleged conditions by TURNER or TURNER'S failure to act on those conditions after a request that the Magistrate claimed to have given to his subordinate and counsel (see Swanson, p. 257-260).
Under Canon 3C of the Code of Judicial Conduct of the ABA, a judicial officer is required to disqualify himself in a proceeding where he has personal knowledge of evidentiary facts concerning the proceeding and where he is likely to be a material witness in the proceeding [Canon 3C(l)(a) and (d)(iv)]. See also 28 USC Section 455.
The Magistrate indicated that he had given instructions to TURNER'S subordinate, Mr. Arline, and to his counsel to have TURNER investigate claims that he now says were made that day by LaMarca as to frequency of sexual assaults at GCI. What LaMarca said to the Magistrate that day and what the Magistrate allegedly told Arline and Belitsky were not testified to by any witness in the lawsuit. The sole source of information on this subject was the Magistrate's own statements — the accuracy of which are not conceded by the Defendants.
When he was challenged on this issue and asked to recuse for having inserted himself and his claimed knowledge into the lawsuit, the Magistrate denied any intention of becoming a witness in the suit (p. 431-432). He thereafter denied the motion (p. 606).
Subsequently, despite the disavowal of the Magistrate, and despite the fact that no other witness ever testified to the "facts" he related, these matters were incorporated into the Report and made a basis for the Magistrate's recommendations (Report, paragraph 68-70). Although the Magistrate, in his Report, characterizes his visit to GCI as a "proceeding", there was no record of any "proceedings" and nothing other than the Magistrate's own relation of events sets the context for what allegedly transpired.
Under these circumstances, it is clear that the Magistrate's refusal to recuse himself was in contravention of the mandate of the ethical canon above-cited. It'also contravened 28 USC Section 455. If the Magistrate was disqualified as a judicial officer from proceeding in this cause, then his entire Report and Recommendation must be rejected.
10
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II. OBJECTIONS TO FACTUAL STATEMENT

31.

The statement that R. V. TURNER held the position of Superintendent

through August 31, 1984 is incorrect. He held the position through July 31,

1984. (Turner, p. 557)

32.

The inmate population on July 29-31, 1985 is irrelevant to the time

period under TURNER since TURNER had retired a full year before. The

statement of ethnic or racial breakdown, when coupled with the statements in

paragraph 33, is misleading. On July 29-31, 1985, according to Plaintiff's Ex. 7,

there were 550 Blacks, 322 Whites and 3 Indians, Japanese or Hispanics.

Of greater relevance to the issues in this proceeding, the inmate

population figures for 9/19-21/83 — the only date falling within the relevant

time period of January 1, 1980 - July 31, 1984 for which a record of racial and

ethnic background was put in evidence -- show 426 Blacks, 397 Whites and 10

"other" (Plaintiff's Ex. 6). There is no support in the records in evidence for

the conclusion that the figures for Whites include people of Hispanic origin.

The opposite is shown by a separate listing for "others" which specifically

include Hispanics. The racial breakdown of 51.1% Black and 48% White is

virtually identical to the statewide racial composite (Swanson, p. 288, 419).

During TURNER'S administration, the inmate population increased from just

over 700 to a high point of 920 (Turner, p. 559). According to the

Superintendent's monthly reports in evidence the population ranges for each

year of TURNER'S administration were as follows:

1980: 760-795 1981: 782-854 1982: 829-906 1983: 844-915 1984: 834-893

(Plaintiff's Ex.31)

33.

The figure given by MUSIC for the current Hispanic population

(December, 1985) was 7%, not 7-10% (Music, p. 133). The fact that the

11
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Superintendent's monthly report for 11/81 reported a large contingent of Latins

does not establish any specific percentage -- either less, the same or greater

than 7% -- and thus the conclusion that even on that date the Hispanic

population was greater than 7% or any other percentage is not supported by

facts or logic.

That the increase in Latin population on that date was apparently

temporary is shown by the fact that there was no other reference to the

problem, referenced in the monthly report of 11/81, in other reports

(Defendant's Ex. 7).

The statement that 65-70% of the inmates at GCI were close custody

during TURNER'S administration is misleading. The testimony cited was that

the percentage of close custody inmates increased during his administration to

65-70% in 1984. The close custody category began in the late 70's with

approximately 50% (400 of 800) (Turner, p. 560) (Defendant's Ex. 14).

Close custody does not necessarily imply that the inmate is violent; it is

a category for those inmates who because of past history or because they

recently came into the system, are regarded as potential escape risks and who

must be accompanied by armed guards when outside the defense perimeter

(Turner, p. 562).

36.

The sweeping statements in reference to a "wholesale manufacture of

prison wine", "regular screenings of sexually explicit videotapes", "maintenance

of an ill-assorted guard corps whose members the inmates perceived as regularly

trafficking in contraband, extortion and neglect" are not supported by the

record as will be addressed hereinafter. That instances of wine production, of

viewing of films containing sexual subject matter and of improper conduct by

correctional officers did occur appears in the record but far less frequently

that these sweeping statements imply.

12
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38.

The statement that "(c)onditions at GCI were known to Superintendent

Turner" is false in the implication that it intends to convey: that TURNER

was aware of all of the conditions which the Plaintiffs claim existed. The

specific evidence used to support this statement in the Magistrate's Report

consists of two letters TURNER wrote to Secretary Wainwright, describing the

situation at GCI on March 15, 1979 and July 16, 1981. The "conditions-

described in the first letter related solely to the shortage of staffing and the

consequent problems of putting existing staff on overtime and spreading

manpower thinly over the necessary posts. As will be shown, not only was

TURNER not responsible for manpower shortages which occurred from the late

70's until 1982 (when the number of vacancies dropped considerably) but it was

due to extraordinary efforts on his part that this problem was alleviated.

These same problems were described in the letter of July 16, 1981 which

further elaborated on the problems faced by GCI in recruiting a sufficient

number of applicants who could meet minimum standards and the need for

more experienced correctional officers. The statement that the security staff

was tolerated by the inmates, in the context in which it was made, clearly

referred to a potential rather than actual problem: that with an inadequate

number of correctional officers there could be a danger that if the inmates

chose to make trouble then control would be difficult. There was no reference

to this potential problem actually occurring.

The Magistrate suggests that because of the shortage of staff during

1979-1981, the accreditation by the American Correctional Association was

invalid. He also, in relying on Swanson's testimony, states that FSP was

receiving accreditation at the time the Florida Circuit Court was finding it to

be in violation of constitutional requirements and further states that the entire

Florida Correctional system was accredited by the ACA when the Middle

13
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District found unconstitutional practices in the Costello v. Wainwright litigation. A reference to the reported decisions in both of these cases reveals quite clearly that Swanson's testimony was false. In view of the fact that he was personally involved in the FSP litigation, the falsity of his testimony raises serious questions as to his credibility as a witness.
In the opinion of Graham v. Vann, 394 So.2d 180 (Fla. 1st DC A 1981), the following facts are set forth: On Aug. 20, 1980 the Trial Court appointed an Advisory Commission (Swanson's commission) to explore, investigate, define, evaluate and recommend alternative approaches to alleviate the problems at FSP. This Commission filed a report to which the Governor and other defendants responded on October 3, 1980. At that time, the Trial Court then ordered that the Defendants submit a plan for implementation of the Advisory Commission Report and further ordered FSP to seek accreditation with the American Correctional Association. It is patently clear from this reported decision that it was not until well after the Advisory Commission undertook its study and issued its report that the Court even ordered the institution to begin seeking accreditation. It is further clear that the seeking of accreditation was a part of the remedial process aimed at improving conditions at the institution.
According to the uncontested testimony of Raymond Mulally, the accreditation coordinator for the Department of Corrections, Florida prisons first began seeking accreditation from the American Correctional Association in 1980 (Mulally, p. 498-499). A reference to the reported decisions in the Costello litigation reveals that the initial order of the District Court finding unconstitutional conditions in the system was on May 22, 1975, Costello v. Wainwright, 539 F.2d 547, 548 (5th Cir. 1976). On October 23, 1979, a settlement agreement was entered into between the parties covering all issues raised in the litigation. This agreement was approved by the Court and adopted in an order
14
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dated February 11, 1980 in which Judge Scott acknowledged that during the

pendency of the litigation there had occurred real and substantial improvement

in conditions in the Florida Penal System, Costello v. Wainwright, 489 F.Supp.

1100, 1102 (M.D. Fla. 1980). It is clear in respect to Costello that the findings

relating to system wide problems in the penal system predated accreditation by

the ACA of any Florida prison. Indeed the accreditation only followed upon

the real and substantial improvements noted by the District Court in that case.

Furthermore, there are still a number of prisons in Florida which are not

accredited (Mulally, p. 507).

Swanson testified that the standards by which he judged the conditions

at GCI were generically identical to those of the ACA (Swanson, p. 47). It is

highly significant that on the only two occasions in which an in-depth

contemporary evaluation of GCI under such standards was conducted, the result

was a high approval rating by the ACA -- a group totally independent of either

side in this litigation. It is further significant that both of these evaluations

occurred during TURNER'S administration. Each of these evaluations involved

a three-man team which inspected the institution and its operation over a 2-3

day period (Mulally, p. 500-503). In contrast to this, Swanson did not observe

the institution until more than a year after the end of TURNER'S

administration and almost 6 years after the time period in issue began. His

request for documents to review included only those which were designed to

disclose problems or negative aspects of the institution rather than giving a

balanced historical view of the period (Swanson, p. 406). It is noteworthy that

he never sought the accreditation reports for this study even though he knew

that GCI was accredited (Swanson, p. 278).

40.

In respect to the Grand Jury Report, which was admitted over objections

of hearsay and relevancy, it is noteworthy that the Magistrate stated "... it

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carries very little weight." (p. 21). He further elaborated on the inherent

unreliability of such reports (p. 22-23). Curiously, in his Report and

Recommendation, he appears to have given it the weight he earlier questioned.

Contrary to the statement in the Magistrate's Report, the Grand Jury Report

stated nothing about a "free flow" of contraband. It indicated only that

marijuana and drugs were available to inmates; it did not determine the degree

of availability. (Plaintiff's Ex. 4, tab A, p. 6 ) . ^ The reference in the

Magistrate's Report to the testimony from unnamed sources mentioned in the

Grand Jury report is reliance upon the rankest hearsay. The reliability is

especially questionable in view of the fact that the investigation was primarily

concerned not with issues of security or contraband, but with shortages in meat

supplies which had been discovered in 1978.^

Finally, it is important to note that the Grand Jury investigation took

place in 1979, from one to five years prior to any of the alleged incidents for

which the Plaintiffs made claims.

42.

Contrary to the Magistrate's finding, the Inspector General's

Management Review of August 26-29, 1980 did not observe and corroborate

"similar issues concerning a breakdown of security" as the Grand Jury. It did

note a shortage of manpower, a fact about which TURNER was aware, but

about which he could do little at that time. It found no "breakdown in

security". The Magistrate overlooks the Review finding that all appropriate

recommendations made by the Grand Jury in its 1980 Report had been put into

effect by TURNER (Plaintiff's Ex. 4, tab B, p. 5). It is significant that the

management review team catalogued the causes of the manpower shortage at

GCI:

8/

Contraband is always a problem in any prison (Swanson, p. 333, 371; Music, p. 104-108).

6/

The Magistrate's Report overlooks the fact that the Grand Jury investigation was convened to follow up an

internal investigation which had been instituted by Turner (Turner, p. 679,682).

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location of prison socioeconomic conditions availability of housing quality of schools competition from private employers
(Plaintiff's Ex. 4, tab B, p. 19).

To the extent that any of these causes could be alleviated, the

appropriation of funding was essential -- a matter beyond the control of

TURNER who, it was conceded, did all he could to make the budgetary needs

known to his superiors and to the Legislature and who lobbied tirelessly (and,

ultimately with some success) for the increased funding.

The Magistrate's Report also ignores the Review team finding that GCI

had been through a massive effort at self review and improvement during the

preceding months (Plaintiff's Ex. 4, tab B, p. 24). In short, the Management

Review showed that GCI was run remarkedly well within the budgetary and

fiscal constraints imposed upon it.

44.

At no place in the Review team report was there a finding of low

morale of the GCI staff. A feeling, reported in the survey that greater

numbers of staff were needed does not necessarily equate with low morale and

the conclusion that it does is not warranted.

Finally, it is important to note that the problems of staffing at GCI

began to be substantially alleviated in 1982 when both turnover rate and the

number of staff vacancies were reduced considerably (Plaintiff's Ex. 31;

Plaintiff's Ex. 39; Swanson, p. 274-276).

45.

The Magistrate, in referring to the mention of laxity in the Inspector

General's Inspection Report of September 19-21, 1983, implies that this finding

was in reference to security issues. In fact, the instances in which the Report

noted laxity were the following: housekeeping; inmates' appearance; leaving of

several garden implements near a gate; centerfolds posted to confinement cell

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walls and the use of inmate rather than officer translators. (Plaintiff's Ex. 6,

p. 3). It is noteworthy that, as the Inspector General testified, the purpose of

these inspections is to ferret out as many negative factors about each

institution as possible (Brierton, p. 252).

It is instructive to refer to the specific findings of the Review

Committee, the vast majority of which are positive. In respect to General

Administration (a direct review of TURNER'S activity), only 2 categories out

of 20 resulted in negative findings and in one (existence of an organizational

chart) the deficiency was already in the process of remedy at the time of the

inspection. In respect to Personnel, only one category in 17 resulted in a

negative finding (several recently employed officers had not yet been scheduled

for training). Specifically, the team made positive findings in respect to morale

and the professionalism of the staff.

The "security problem" referenced by the Magistrate from this Inspection

Report involved single escape by a prisoner who threatened a guard with a

homemade knife and scaled a fence to get out.

46.

The Barrett incident has no relevance to the issues in the present case.

It involved a single incident by a security lieutenant who overreacted to a

prison fight after he had been summoned back to the compound from being

off-duty where he had been drinking. TURNER was not present during the

incident and none of the Plaintiffs were involved in the incident — indeed with

perhaps two exceptions most of the Plaintiffs had been transferred out of GCI

at the time.

It is significant that this was the only incident involving improper use

of force identified by Swanson as occurring in the time period 1980-1984.

(Swanson, p. 387). it is further significant to note that during this period the

Florida prison system had 250 complaints of excessive force at 28 institutions;

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only 2 were at GCI and only one (Barrett) resulted in a finding of excessive

force after investigation (Turner, p. 664-666). It is clear why the Plaintiffs

chose to rely heavily upon the Barrett incident: it was the only instance of

improper use of force that they could find in a five year period. It is equally

clear that it had no relevance to any of the issues in this suit.

The quotation referring to TURNER'S not notifying the prison

inspectors is taken out of context. It is clear in the Report that both Arline,

the assistant superintendent who relieved Barrett immediately after the

incident, and TURNER were asked about contacting the prison inspectors in regard to the initial incident that night. As Peters testified, TURNER had him

investigate the incident (Peters, p. 401); the Inspector General's office was then

summoned by TURNER and sent down a team three days after the incident

(Swanson, p. 213-214).

The only infraction which the Report noted in respect to Lt. Peters was that he had returned to the compound, when summoned under an emergency

call, after he had been drinking while off duty at the festival (Plaintiff's Ex. 9;

Conclusion, p. 11). Again the Magistrate's Report is less than fully candid in its

reference to his having been found guilty of "additional prison infractions".

There was absolutely no adverse report or finding in respect to TURNER in the Barrett report.

48.

The Magistrate's finding that TURNER, in interviewing an inmate

(Allen) in the course of the Barrett investigation, failed to register appropriate

outrage on the Transcript in learning that some of the inmates had been

drinking buck is patently absurd. First, it assumes that one can determine a person's emotional reactions from a transcript; second, it ignores the fact that

TURNER was an interrogator whose object was to uncover facts not to express

all of his opinions. What is clear in the interview is that TURNER was

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determined to uncover all of the facts of what happened even if they reflected

adversely upon Lt. Barrett. It is also clear that he saw to it that Allen, who

had been struck by Barrett, fully understood that he had an unrestricted right

to pursue legal remedies for what happened to him (Plaintiff's Ex. 9; Allen

interview, p. 7-8).

50.

The Magistrate, in citing Swanson's criticism of TURNER for not

immediately suspending Barrett, ignores the concession by Swanson on cross-

examination that all he meant was that Barrett should have been removed from

the compound that night and that this is precisely what TURNER did

(Swanson, p. 330).

51.

The Dixon investigation is equally irrelevant to the issues in this suit.

Dixon was investigated several times at TURNER'S instigation due to reports of

inmates, made directly to TURNER, that they were subject to extortion. These

investigations, involving use of lie detectors by prison inspectors and outside

police, failed to substantiate the charges. In fact, the lie detector tests

indicated the inmates were lying in several instances. (Plaintiff's Ex. 10, tab A).

Despite this, TURNER ordered the investigation to continue. (Peters, p. 391;

Turner, p. 660-663). Eventually concrete evidence was discovered during

Music's administration of an incident which led to Dixon's resignation and

prosecution.

53.

The Magistrate's finding that the Barrett and Dixon reports revealed

"wholesale staff corruption" is totally lacking in credibility. Each of these

reports concerned the actions of single individuals out of a total staff of over

200 at any one time. The testimony of Larry Pryor, as acknowledged by the

Magistrate, is of questionable credibility. In his testimony only Lt. Barrett is

identified as having employed Pryor as an informant or enforcer. Even if true,

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this again involves only one individual and there was absolutely no evidence

that TURNER had any knowledge of the matter.

56.

The statement of Swanson that "little or no effort was taken to control

illicit activity" resulting in readily available contraband" is clearly belied by

the record. That contraband -- alcohol, drugs and homemade weapons -- existed

at GCI is not contested. But Swanson himself conceded that contraband was

unavoidable at a prison and was, indeed, a universal phenomenon (Swanson, p.

333, 371). At best, efforts can be made to reduce or limit the amount of

contraband. Contraband includes a wide range of items forbidden to the

inmates: homemade knives or shanks, drugs, homemade or manufactured

alcohol being the most prevalent. The record is replete with evidence -- all of

it uncontradicted -- showing a substantial effort at reducing and limiting

contraband during the TURNER administration. That Swanson was not aware

of these efforts is not surprising since he drew upon a limited source of

information in giving his opinion: the inmate plaintiffs, the investigation

showing that Dixon introduced contraband; TURNER'S interview with inmate

Allen in the Barrett case, in which Allen indicated that some of the inmates

had been drinking buck, and the 1980 Grand Jury report of its investigation in

1979 (Swanson, p. 326). What is surprising is that Swanson, who purports to be

an expert in these matters, should ignore a substantial body of information

made available to him that indicated significant enforcement procedures at GCI

aimed at limiting contraband -- some of which was contained in exhibits he

prepared for the Plaintiff which were admitted into evidence. More than

surprising -- even shocking -- is the fact that the Magistrate ignored this

substantial body of evidence and also the further evidence presented, without

refutation, by the Defense.

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As various witnesses testified, contraband could be introduced onto the compound by inmates returning from work crews, by visitors, by staff and by being thrown over the fence. Contraband could also be fashioned or made in the compound. (Peters, p. 363; Swanson, p. 332-333).
George Lawson, a shift lieutenant, testified at length to the procedures used for shakedowns of both individual inmates and entire dormitories during the period from 1980-1984 -- the latter requiring 8-12 officers and occupying 13 hours per search (Lawson, p. 543-545).
TURNER testified at great length to the wide ranging techniques he employed: marijuana sniffing dogs; dormitory shakedowns (each occupying 30 man-hours); use of informants; selective body searches of visitors; use of metal detectors; body searches of inmates returning from work crews and visitation; monitoring of prison implements and products such as brooms and glass cleaner from which ingenious inmates could devise weapons and alcoholic beverages; the assignment of two sergeants whose primary duty was to police the compound for contraband (Turner, p. 615-628).
Peters testified that GCI, during TURNER'S administration, specifically employed two sergeants — Bradley and Nappi -- who were highly skilled at uncovering contraband ranging from weapons to buck, or homemade wine; daily pat searches of the 400 inmates who worked outside the compound and selective strip searches of them; dormitory searches, locker searches, selective strip searches of inmates in the dormitories; inspection and searches of all belongings of visitors, and use of metal detectors (both hand held and walkthrough). (Peters, p. 362-371). During the TURNER administration, thirteen criminal prosecutions were brought against visitors who attempted to introduce contraband that was illegal in society into the compound (Peters, p. 371). Visitors attempting to introduce contraband such as alcohol or money that was
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not illegal in society were not criminally prosecuted but the items would be confiscated (Peters, p. 369-371). In addition fourteen criminal prosecutions were brought against various staff members for introduction of contraband (Peters, p. 374). Inmates found in possession of contraband were prosecuted through the formalized disciplinary process, resulting in loss of gain time or disciplinary confinement or both. Plaintiff's own Ex. 4, tab B, Table V shows the following number of inmate prosecutions for the period of one year preceding June 1980: possession of weapons-12; possession of unauthorized drugs-83; trafficking in drugs or alcohol-3; manufacturing alcohol-2; possession of unauthorized beverage-13; possession of miscellaneous contraband-27. To say that the inmate records introduced into evidence (including portions introduced by Plaintiff) are replete with contraband prosecutions is an understatement. A few examples suffice: Willie Dock was found guilty of possession of a knife observed by Sgt. Bradley and sentenced to 30 days confinement and 30 days loss of gain time (Plaintiff's Ex. 16). Eddie Cobb (a plaintiff) was twice found guilty of possession of yeast (used in making buck) and sentenced to confinement and loss of gain time; he was also found guilty of possession of buck (Defendant's Ex. 16). Anthony LaMarca (another Plaintiff) was found in possession of two snakes and placed in confinement (Defendant's Ex. 20).
What this uncontradicted evidence shows is that the authorities at GCI during TURNER'S administration utilized a number of methods aimed at preventing or limiting the introduction of contraband into, or its manufacture in, the compound; they pursued a wide range of methods aimed at discovering and limiting the existence of contraband in the institution, and they aggressively pursued prosecutions of inmates, visitors and even staff who introduced such contraband. Swanson's opinion, based on virtually no source that could fairly be said to be likely to reflect the actual procedures taken to
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combat contraband, was palpably worthless. That the Magistrate should adopt

it in the face of clear documentary and specific testimonial evidence to the

contrary is typical of a large number of his findings which reflect a failure to

review the evidence.-^'

57.

The Magistrate's conclusion that the staff at GCI was poorly trained

flies in the face of substantial contrary evidence. For his finding he relies upon

what he alleges to be numerous incidents wherein staff members were

'

unfamiliar with the use of weapons. In view of the fact that weapons are very

seldom issued to staff, the reliance upon such an indicia for a sweeping

conclusion would be remarkable even if the evidence showed what he claims it

showed. In fact, the cited evidence fails to provide such support leading to a

conclusion that, at best, the Magistrate failed to read the documents upon

which he relies. Plaintiff's Ex. 33, which he cites, contains reports of four

incidents involving weapons:

1) On 6/23/83, an officer discharged a shotgun while loading. The cause

was found to be a defect in the weapon, not a mistake by the guard;

2) On 5/24/83, an officer fired a warning shot in the air to stop several

inmates on a work crew who appeared to be attempting to an escape. The use

of the weapon was approved on review;

3) On 7/18/83, an officer discharged a weapon he was loading due to

failure to follow appropriate loading procedures. He was immediately ordered

to undergo additional instruction;

7/

The Magistrate also cites — in addition to Swanson as support for his finding — the Grand Jury report whose

value he had earlier deprecated and which did not apply to the time period in question; a report of an inmate

being found in possession of a knife used in escape and a report that Peters once found 20 gallons of buck.

This last is an erroneous report of Peters' testimony. The buck was found, not by Peters, but by Sgt. Bradley

(Peters, p. 366). What this quite clearly shows is that the security officers were actively rooting out

contraband. That the Magistrate should cite it as an example of neglect underscores the numerous factual

errors and inverted logic used throughout the Report.

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4) Sgt. Wischer, while chasing an escapee for 2 hours through a field of sugar

cane, lost a pistol out of his holster. The loss was found not to be his fault.

In summary, the Magistrate could point to one incident in nearly five

years in which an officer manifested a need for further training on a

particular weapon. This is pathetically weak support for his finding of

widespread lack of familiarity with weapons.

In respect to the training of officers, the Magistrate quite conveniently
•#-.~v..'
ignores the uncontradicted testimony -- conceded even by Swanson — that the

correctional officers at GCI all received training through Palm Beach

Correctional Institute of Palm Beach Junior College, and were required to

undergo 320 hours of such training during their first six months (one of the

highest requirements in the nation). (Swanson, p. 276; Turner, p. 613)

In particular respect to Swanson's testimony on firearm training, the

Magistrate chose to consider only his testimony on direct and completely

ignored the fact that Swanson was forced to concede on cross that the training

requirement in firearms began under TURNER, not Music (Swanson, p. 379-

380).

59.

The Magistrate's sweeping conclusions in regard to staff morale is not

only not supported by the cited exhibit -- which does not reflect upon the issue

of morale ~ but is completely contrary to the specific finding in Plaintiff's Ex.

6, which, on September 19-21, 1983, found employee morale and performance to

be positive (the only such record in evidence relating to a specific analysis of

employee morale during the TURNER administration period under question

(1980-84).

The Magistrate's reference to staffing shortages, turnover and high

overtime are, perhaps, more disturbing as reflecting two fundamental errors in

his analysis. First, consistently throughout the Report the Magistrate cites the

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least favorable statistics, in respect to each issue, which can be found over the five year period and then represents them as applying to the entire period. Second, the Magistrate assumes with no cited basis in the evidence that the staffing problems are due to TURNER.
In respect to the first point, already referenced above, Plaintiff's own Ex. 39 reveals that the high number of staff vacancies existing in 1980 and 1981, dropped dramatically in 1982 and continued to drop generally through to 1984. Concomitantly, the turnover rate also declined dramatically as did the staff overtime -- which was at 1/2 of the level in 1983 that it was in 1980. As even Swanson conceded -- but again, a point curiously ignored by the Magistrate -- the manpower and staffing situations improved considerably under TURNER and resulted in improved conditions at GCI. (Swanson, p. 274276). The Magistrate's Report also ignores the reason for the high overtime — the shortage of staff -- and the alternative facing TURNER if he did not resort to staff overtime — even fewer guards on duty at any one time (Swanson, p. 404).
In respect to the second point, the Magistrate completely disregards the finding of the Inspector General's Report of August 26-29, 1980, which he relies upon elsewhere and where the causes of the high turnover and staff vacancy rate are examined (Plaintiff's Ex. 4; tab B p. 19). Not a single cause was or could be attributed to TURNER. He also ignores the substantial evidence as to various methods employed by TURNER to improve the situation: lobbying in both the Department and the Legislature for increased salaries; cooperative agreements for medical services; use of transportation to bring employees from the coast; increasing the size of the bachelor quarters and expanding the trailer park facilities; personally recruiting in the high schools and from other penal institutions. (Turner, p. 609-613; 635-638). Significantly,
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Swanson was forced to concede on cross that he was unaware of most of

TURNER'S efforts at recruitment and that the records he had relied upon were

not calculated to show what efforts were made by TURNER. (Swanson, p. 364-

366). Many of these efforts were dependent upon funding and it was only with

the funding that the situation was finally relieved. But, as shown above, it is

not accurate to characterize TURNER as only approaching this problem from a

legislative lobbying standpoint.

Finally, it is important to note that not all new staff were

inexperienced. Many had come from other prisons or were employees who left

GCI and then returned on a seasonal basis due to outside agricultural

employment. (Turner, supra; Music, p. 95-96; Swanson p. 370).

61.

The conclusion that the individual plaintiff's claims arose out of the

failure of TURNER to station officers properly is not supported by citation to

the record. There was not an iota of support for this conclusion.

62.

The entire issue of upper bunk sheets obscuring the view of the showers

is a false one. As Swanson was finally forced to concede, and as the

Defendant's composite photographic Ex. 1 and 2 clearly show, even if there

were no bunks at all in the dorms, a guard in the wicket could not see into the

showers; indeed even if a guard is midway between the wicket and the showers

with no obstruction between him and the showers, he cannot see into the

shower room. (Swanson, p. 318-323). This being so, the entire issue as to sheets

blocking a view of the showers is totally without substance.

63.

The Magistrate's characterization of Peter's testimony as being that the

officers did not patrol the dorm is another of the frequent clear

misrepresentations of the evidence. What Peters said was that the officers were

supposed to patrol the dorm. He did no! say that they did not patrol. (Peters,

p. 452-456). The Magistrate points to not a single item of evidence showing

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that the officers did not, as the general rule, patrol as they were supposed to

do. In fact, there was dramatic testimony by an inmate that patrolling did take

place (Taylor, p. 187). In respect to TU.RNER's testimony, the Magistrate

mischaracterizes the evidence once again. TURNER actually testified that

there certainly may have been disciplinary action taken against an officer for

failure to patrol as he was supposed to do; he could not, by memory, recite

specific instances (Turner, p. 732).

64.

A more serious instance of misrepresenting the evidence occurs in this

paragraph where the Magistrate's Report states that Peters testified that there

was no standard operating procedure for investigation of rapes. No page

citation is given. A reference to the following, however, will clearly

demonstrate not only that it was false to state that Peters made such a

statement, but also that Peters made exactly the opposite statement and

described such procedures in such detail that it is difficult to understand how

the misrepresentation in the Magistrate's Report could have been made:

1) On page 444, Peters stated that there was no procedure for line officers

to report rapes directly to him:

2) On page 445, he testified, in direct response to the Magistrate's own

questions, that the proper procedure at GCI was for line officers to report to

their superiors and those superiors to the next level up;

3) On page 461, Peters explained that he received his investigative

assignments directly from TURNER not from the line officers;

4) Then, in great detail, on pages 464 and 485, Peters described the standard

procedure for investigation of rapes at GCI:

-insure that victim is taken to medical department for a rape examination;

-interview victim to determine if he can identify assailant;

-pick up and interview alleged assailants;

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-contact sheriff's office;

-contact state attorney's office;

-isolate both victim and assailant;

5) Peters further described the technique for the rape examination as

involving the Johnson rape kit used for rectal examination (Peters, p. 490).

6) This procedure was established by TURNER himself (Peters, p. 484).

It is significant that the Magistrate did not acknowledge this testimony

and reject it; instead he misrepresented it in each and every particular and

ascribed the misrepresented testimony to Peters and TURNER.

65.

The Defendants agree that these procedures were not followed in respect

to Saunders, Aldred or Harper. As appears later, they question whether these

and the other alleged assaults ever occurred and, if they did, whether they were

reported to any officer. Even if it is conceded, arguendo, that these inmates

were assaulted and that they reported the assaults to an officer, there was a

total absence of evidence that TURNER or Peters were ever advised of these

rapes. In fact they both denied any such report. At most, the evidence could

show only that a line officer or his immediate superior failed to report the

assault or to make out an incident report as required by the written regulations.

In view of Swanson's observation that the line officers documented every

occurrence out of the routine — no matter how minor — there is serious doubt

that any report of an incident by these Plaintiffs was ever made to the officer

(see Swanson, p. 384, 412).

66.

The statement that there was only one prosecution for rape during the

entire TURNER period is manifestly inaccurate. It is also a clear

misrepresentation to state, as does the Magistrate's Report, that no rapes were

ever reported in any of the massive documentation received by Dr. Swanson.

First, the reference to rape prosecution is apparently derived from Peters'

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testimony. What Peters actually said was that he recalled only one case

successfully prosecuted in 1984: he could not remember, without reference to

records, what prosecution, if any, occurred in 1983 or prior years. Against

Plaintiff's counsel's misrepresentation of his testimony, he reiterated this

(Peters, p. 465-468; 487). It is manifestly improper to characterize a witness'

statement that he does not know by memory as to whether something was done

into a conclusion that nothing was done. Peters clearly said that his memory

only went back to 1984.

In regard to the reporting of rapes in the documents received by

Swanson, the Court is directed to Plaintiff's Ex. 31 and 39 -- the latter a

summary by Swanson, himself, from data in the former! The Superintendent's

reports listed 5 reported sexual assaults from 1980-84 under TURNER. Nor

does the citation given by the Magistrate to Swanson's testimony support his

conclusion. What Swanson stated was that he found no reports of the rapes

claimed by the Plaintiffs in their inmate files (Swanson, p. 150).

71.

The Magistrate's finding that rapes occurred at GCI during TURNER'S

administration establishes nothing. The question is one of frequency and the

frequency known to TURNER. As Swanson candidly admitted, rapes are a fact

of life in virtually all prisons and are very difficult to eliminate (Swanson, p.

309). The records reveal five reports of rape to the administration during the

relevant time period of 1980-84 (Plaintiff's Ex. 31). These are not necessarily 5

rapes, but 5 reports of rape. Some reports turned out to be false — see report of

two rapes to Lt. Lawson later retracted by the complainants after being given

medical examinations (Lawson, p. 546). While it would be a fair assumption

that not all rapes are reported to the staff, and while it is possible that a staff

member might under some circumstances improperly fail to report to the

administration (the latter an unlikely occurrence in an institution where

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thorough and detailed documentation of all exceptional events exists, as

Swanson found to be the case at GCI, supra), the administration, and TURNER

in particular, can be held to have knowledge only of those incidents reported to

it ~ a fact so basic as to form almost a tautology.

The suggestion that rapes can be inferred from a free flow of

contraband is in error on two counts: first, while there was contraband at GCI -

- as at all prisons -- it was by no means free-flowing; second, there was no

opinion evidence that drew a conclusion that the existence of contraband

implied prevalence of rape; it is perhaps unnecessary to note that there is no

logical connection between contraband and rape.

73.

The suggestion that Plaintiff's Ex. 6 reveals that a disproportionate

number of young white inmates checked into confinement in September, 1983 is

in error; there is nothing in the Report reflecting on the age of the inmates in

PC.

Since the inmates in PC were required to give a reason for their request

for protection, and since those requests often listed debts or money problems, it

is not accurate to suggest that raw data as to the number of protective custody

inmates necessarily reflects fears of sexual assaults (see e.g. Defendant's Ex. 15,

22; Harper; Durrance; also Brierton, p. 270-271). It was also common for

inmates who had been in PC at other institutions to request it automatically on

arrival at a new institution (see e.g. Plaintiff's Ex. 5, letter of 11/30/81 re:

Zatler; see also incident where 9 inmates from Florida State Hospital applied

for PC on arrival at one time, Plaintiff's Ex. 33). Indeed, as the

Superintendent's report for February, 1981 indicates, a number of spaces in

protective confinement were occupied by mental patients transferred from

RMC (Defendant's Ex. 7).

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The footnote contention that the population figure for whites (48%)

includes Hispanics is not supported by the record and, as noted above, is

contrary to the listing in the reports themselves.

75.

The reliance upon Plaintiff's Ex. 5 to support the contention of poor

ventilation and lighting in protective confinement constitutes an unwarranted

and selective choice of evidence out of context. It ignores the memorandum of

October 6, 1982 which responded to the memorandum of September 22, 1982

(not 1985 as given in the Magistrate's Report). In it, the State Design &

Construction Administrator advised that the cells measured two weeks earlier

by the investigator were still under construction, with one block being 65%

complete and the other nearly 100% complete; that the lighting and ventilation

were not yet completely hooked up; and that when they were finished, they

would meet State standards (see Swanson's concession of this point, p. 362-363).

It is not accurate to imply that a temporary condition due to construction

efforts undertaken to expand the confinement quarters reflected the permanent

condition of the cells.

In respect to the claims of crowded conditions, the Superintendent's

reports (Plaintiff's Ex. 31) do not reflect a greater number of inmates in

confinement than the number of permanent beds (23) until the latter part of

1981 (Turner, p. 592). In late 1982, with the completion of the new wings, the

capacity was substantially increased. While overcrowding did occur for a short

period of time, it is not proper to ascribe that to TURNER who had no

authority to incur construction expense on his own and who, indeed, went to

extraordinary lengths to develop special funding to permit the construction of

additional cells (Turner, p. 608).

76.

The shortages in cell space were due to a number of factors: increase of

30% in inmate population, supra, the development of the protective

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confinement concept in the 1970's leading to tremendous increase in the number

of inmates in PC throughout the country (Brierton, p. 263-264); the fact that

confinement facilities are divided between three classifications -- disciplinary,

administrative and protective. In view of the fact that in some states as many

as 20% of the inmate population is in protective confinement, the 2-3% figure

at GCI was actually extraordinarily low (see Brierton, p. 320).

77.

The Magistrate's reliance upon Swanson's testimony as confirming that

certain specific incidents occurred. in ill-founded, Swanson specifically

disclaimed any intention of confirming the inmate Plaintiffs' specific

complaints (Swanson, p. 311-312).

78.

The suggestion that the hanging of sheets or towels is a definite sign of

sexual activities ignores the many non-sexually related reasons that an inmate

might have for screening his bunk — such as minimal privacy and as a barrier

to light shining on his face (Brierton, p. 337; Deposition of Greenwood, p. 6-8).

Moaning by an inmate in his bunk might be indicative of a number of things

besides homosexual activity — from indigestion to self abuse. Most importantly,

there was no evidence that TURNER ever heard or had occasion to hear such

moaning. Nor did he see sheets or towels hung on beds. The movies were

selected not by TURNER but by the Athletic Director (Johnson, p. 235; see also

Brierton, p. 338-339: a superintendent with all of his other responsibilities

cannot screen each movie shown in prison).

79.

The Plaintiffs adduced no evidence that any of their alleged assaults

were reported to TURNER except for the case of Harper. The unreliability of

Harper's testimony will be addressed later.

81.

The complete falsity of this finding has been addressed, supra.

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82.

While neither Peters nor TURNER interviewed Aldred and Saunders,

there was no evidence that the allegations of the latter with respect to their

claimed assaults were reported to either Peters or TURNER.

Footnote 21 again repeats the assertion addressed above. Peters specifically testified that rectal exams were used; medical exams -- and, since the medical staff included both a psychologist and a psychiatrist, one can legitimately conclude that psychiatric exams were included — were given; and interviews of both alleged victims and assailants were standard procedures. There is no citation given by the Magistrate for his reliance on TURNER'S testimony, but a careful review of the entire Transcript fails to reveal any statement by TURNER that these procedures did not occur. While lie detector tests were not part of the standard procedure, considering the poor results shown in the investigations where they were used, it is not surprising that little reliance was placed on them (see Plaintiff's Ex. 10, tabs A & F). In any event, it is patently absurd to suggest that the constitutional rights of inmates require that lie detector tests be given — indeed a more cogent argument could be made for the opposite proposition.

83.

This mischaracterization of the evidence cited by the Magistrate has

previously been addressed. Peters testified that he could recall only one

successful prosecution in 1984 and was unable to say whether there were

prosecutions in prior years or not. Even if there was only one successful

prosecution from 1980-84, this would not establish anything adverse to

TURNER since only 5 alleged incidents in total were reported to the

administration during that time period (supra). Nothing in respect to these 5

reports was put into evidence. Thus, it is unknown as to whether any of the

complainants retracted their stories (see Lawson, supra); whether they were able

to identify their assailants (several of the Plaintiffs even today claim they

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cannot identify their assailants) and, thus, establish a prosecutable defendant;

whether the State Attorney's office refused to prosecute, or whether he failed

to prosecute successfully.

The statement attributed to Peters that there was no State prosecution

initiated for weapons possession by an inmate is another that is belied by the

record. Peters actually testified that he would have to review his files -- which

had not been brought with him -- on such prosecutions to give an answer, but

he recalled at least one specific incident from memory (Peters, p. 458-460).

This also ignores the fact, alluded to above, that the inmates were frequently

prosecuted through the disciplinary process resulting in confinement and loss of

gain time -- thus, effectively lengthening their sentences (supra).

84.

The statement that inmates roamed GCI bent on rape and violence might

constitute interesting dramatics for the calculated benefit of the press, but it

was not substantiated in the testimony even if the Plaintiffs' stories are

accepted as true. That incidents will occur, particularly during periods when

manpower shortages prevent guards from being everywhere on an 11-acre

compound, is not surprising, but to inflate a few incidents -- many of which

are questionable at best -- into a common occurrence is simply symptomatic on

the basic invalidity of the entire Magistrate's Report. The statement that

TURNER did not seek State investigators to investigate armed robbery and

assaults is totally without support in the record. Not only did Peters produce

more than 25 instances of prosecution for contraband, but even the Plaintiffs'

own carefully culled evidence shows the report by TURNER to the FDLE

(Florida Department of Law Enforcement) for just such an investigation and

use of a lie detector involving an incident arising out of an'assault incident

(Plaintiff's Ex. 10, tab F).

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The citation of 18 USC Section 1241 is equally unsupported -- this time

by the United States Code which fails to list any such section of Chapter 18.

86.

The reason that TURNER never ordered an investigation of the claims

of Harper, Aldred and Saunders is that these claims were never reported to him

-- if they were reported to anyone.

87.

The Magistrate's listing of supposed sources of outside investigation is

totally without one iota of support in the record that any of these agencies

even had jurisdiction to investigate inmate on inmate assaults: the reference to

the Attorney General's office is only the most incredible of the group, for this

office has no function and no such capacity. No generalized jurisdiction on

behalf of the Department Inspector General was established: that the IG's

office might investigate alleged improprieties by staff does not mean that it has

jurisdiction to review every instance of inmate on inmate violence. Peters

testified that he did bring prosecutions for inmate assaults to the State

Attorney's office, but that it was the policy of that office to require

corroborative evidence beyond one inmate's word against another — a policy

which made many prosecutions difficult or impossible, but one which

undoubtedly mirrored prosecutional experience with juries and, in any event, a

matter of absolute discretion by the State Attorney (see Peters, p. 380).

What may be lost in this entire issue and, thus, what must be specially

emphasized is that there was no evidence that the GCI's own inspectors were

not able to adequately investigate any matter brought to their attention. This

critically important fact is overlooked by the Magistrate. But the Plaintiffs

made no showing whatsoever that Peters and his staff failed to investigate such

incidents adequately — so long as the inmates were willing to report the

incident and the assailant could be discovered.

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87.

The statement that the FBI was never consulted in respect to violation

of Federal criminal civil rights statutes is simply gratuitous. There was no

showing that any such violations occurred beyond the Barnett incident in

which the FBI was involved.

89.

The statement that inmates had free access over the compound is

absolutely contrary to the Plaintiff's own documentary evidence. Against one

instance cited in this paragraph by the Magistrate of an inmate who was able to

leave his assigned area (Plaintiff's Ex. 6, p. 8), the Court is directed to the

following among the many examples in the record:

1) In the Management Review Report of 8/26-29/80, it was noted that

during the year preceding June, 1980, 67 inmates received disciplinary action

for being absent from their assigned area and 43 for being in unauthorized

areas (Plaintiff's Ex. 4; tab B, p. 21);

2) Anthony Lamarca, a Plaintiff, was found guilty by being in an

unauthorized area on 9/25/81 (Plaintiff's Ex. 24);

3) Andrew Jackson was found guilty of being in an unauthorized area and

given 15 days loss of gain time (Plaintiff's Ex. 21);

4) Eddie Cobb, another Plaintiff, was twice found to have entered

dormitories to which he was not assigned. He lost 30 days gain time on October

25, 1983 and 15 days again on November 8, 1983 (Plaintiff's Ex. 15).

These 114 incidents of prosecution of inmates who were in areas off

limits to them are far from all encompassing since totals are available in the

record for only one year. There is no doubt from these instances, however, that

(1) the administration did limit free access about the compound to the inmates;

and (2) the administration actively and severely punished violators -- including

two of the Plaintiffs who have raised this palpably unsupportable claim in the

first place.

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92.

The errors in this paragraph have been previously addressed. It ignores

two basic points made above: (1) the post orders required the officers to patrol

the dorm and not to just remain in the wicket; and (2) even without a single

bunk bed in the dorm, the view of the showers would be blocked from the

wicket by the shower room wall (supra). In addition, it should be noted that

the trade off in eliminating a middle row of double bunks is that beds must be

placed closer together (Turner, p. 640-641).

93.

As discussed above, TURNER specifically testified that the post orders

required officers to patrol (Turner, p. 643). TURNER stated that he may well

have disciplined guards for failure to patrol, but was not then able to mention

specific instances (Turner, p. 732).

It should be noted that while an officer might in the ordinary course

make his rounds in 10 minutes, if he were delayed by a diversion or other

incident he might take considerably longer to patrol his dorm.

94.

It should be noted that Music was only able to eliminate the middle row

of double bunking in one dorm -- D; contrary to the testimony of Swanson and

implication in the Magistrate's Report, this modification required the allocation

of substantial funding -- $7,000 in D dorm alone (Music, p. 141-142).

96.

The Magistrate's finding that aggressive "wolves" were retained at GCI

and not transported to other institutions was based on Swanson's testimony on

direct examination only. It ignores his testimony on cross where he

substantially modified or changed his opinion. It also ignores substantial

documentary evidence to the contrary. TURNER testified, and Swanson

concurred, that during most of the time period at issue, the Florida prison

system was at capacity; this limited severely the ability of superintendents to

have transfers of inmates approved (Turner, p. 650-651; Swanson, p. 196, 373-

375). Despite these limitations, TURNER still undertook to transfer out a

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number of problem inmates by agreed swaps with other institutions; however, when effecting a swap, one institution with problem inmates did not have the luxury of sending out problem inmates and receiving in return model prisoners; as TURNER phrased it, you did not send out the big bad wolf and get back Little Red Riding Hood in return -- an institution that swapped merely exchanged one problem case for another (Turner, p. 651; see also Swanson, p. 373-375). Although the Department did not maintain a single document listing swaps and transfers, the documentary evidence admitted is replete with instances of swaps used to get rid of particular problems and transfers of others when those could be arranged; a few instances suffice: in July of 1984, TURNER swapped 7 problem inmates, including three who had been determined to be "wolves" (Plaintiff's Ex. 13, swap sheet for 7/19/84; Swanson, p. 298); on June 24, 1982 in another swap, 12 problem inmates were transferred (Swanson, p. 302); specific "wolves" or problem inmates identified in the present case were transferred out as well: Levi Fisher, Andrew Jackson, Michael Lane and Eddie Cobb were all transferred out as management problems (Peters, p. 396; Plaintiff's Ex. 21, 25; Defendant's Ex. 16). On cross-examination, Swanson admitted that his opinion as to the transfer of inmates was derived from the files of two inmates, one of whom was Pryor, where a transfer had been rescinded. When pressed on the issue, Swanson admitted that a great deal of effort would have been required for him to search the thousands of pages of documents for swaps and transfers -- an effort he was not prepared to make. As a consequence, he depended on a sample of two inmates out of thousands who were at GCI during this time period — a sample which he conceded had no validity (Swanson, p. 301-304). He admitted that before he could actually render a proper opinion, he would need to know how many transfers per month occurred under TURNER (Swanson, p. 300-301). When further presented with
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the documents he had overlooked, he was forced to retract his prior testimony

and admit that swaps of problem inmates and transfers of wolves clearly did

occur during TURNER'S administration (Swanson, p. 303).—'

97.

The six busloads of problem inmates shipped out by Jones actually

totaled about 40-45 altogether (Swanson, p. 134). "Problem inmates" include

both wolves and those seeking protective confinement or "sheep" (Swanson, p.

374). The statement that a negative transfer is a rejection of an inmate

assigned to GCI is false. The superintendent of a prison has no discretion in

accepting a prisoner; he can only subsequently seek a transfer with the

approval of Tallahassee (Music, p. 82-88). As Music testified, he too had

problems transferring problem inmates out of GCI. While he found transfer

somewhat easier in his first few months, he now has the same problems as

TURNER experienced and has inmates whom he has been waiting for months

to have their transfers approved due to lack of space in other institutions

(Music, p. 162-164). The 5-6 inmates he transferred each month during his first

few months involved both "wolves" and inmates in PC (Music, p. 162). This

figure is actually less than those for the two months for which documents are

in evidence in TURNER'S administration (7 and 12 inmates, supra).

Finally, the reference to the "unrebutted opinion" of Peters should be

clarified. Peters never expressed such an opinion throughout his testimony.

Indeed, he indicated several instances where problem inmates had been

transferred under TURNER (Peters, p. 396, 467). This "opinion" was the

second-hand relation of Swanson of his recollection of a conversation with

Peters.

11/

What the Magistrate's report ignores is that the transfer or swap of a problem inmate merely moves him from

one prison to another. Since he is already in prison, there is no more restrictive repository for these inmates.

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98.

The statement (ftn. 24) that TURNER did not adhere to the

classification team decision on Pryor is absolutely contrary to the evidence. As

the computer sheet in evidence reveals, authorization to keep Pryor was given

by Raymond Snell, not TURNER (Plaintiff's Ex. 26, tab B). Snell was the

classification specialist (Plaintiff's Ex., tab G). As TURNER testified, the team

would occasionally agree due to extenuating circumstanes, to give an inmate

another chance after a proposed transfer. When they did so, he usually agreed

(Turner, p. 651-652). TURNER'S testimony on this point is the only indication

of what may have been his involvement.

Despite the implication in this paragraph, Music did not transfer Pryor

because he regarded him as a "wolf". Pryor was transferred for having

allegedly assaulted a staff member while in confinement (Plaintiff's Ex. 26, tab

C).

In respect to Willie Dock, whom Durrance claims to have been raped by

on March 17, 1984, the Plaintiff's own exhibit reveals that Dock was in

administrative confinement from March 14, 1984 until March 20, 1984. He

could hardly have raped Durrance in a dorm shower while locked in

confinement (Plaintiff's Ex. 16, tab C).^

In respect to Fisher, Peters actually testified that Fisher assaulted one

inmate -- not several as implied in the Magistrate's Report -- and as a result of

the investigation of that assault by Peters, TURNER had Fisher transferred to

FSP (Peters, p. 395-396). There was absolutely no evidence that Fisher was left

in D dorm after this assault to further allegedly rape Harper. Since he was

transferred as a result of the assault on the other inmate, it is more probable

that Fisher committed the assault well after the date that Harper now claims

12/

Administrative confinement was used as a lockup pending investigation of charges. In the event of

conviction, an inmate might receive disciplinary confinement. In this case, Dock received 30 days of

disciplinary confinement and 30 days loss of gain time for possession of contraband—a knife.

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that he was attacked. Again, the Magistrate's Report claims as fact that which

is absolutely unsupported by, and contrary to, the clear evidence.

Contrary to the statement in footnote 25, Peters did not describe Dock as

a wolf (Peters, p. 413) -- indeed, Dock's record shows him not to have been a

serious problem inmate during the TURNER administration (for instance, he

received only one disciplinary report during that period compared to nearly a

dozen by Plaintiff, Cobb) (Plaintiff's Ex. 16; Defendant's Ex. 16).

One final note on this topic is critical: the fact that the administration

may have learned that a particular inmate was a "wolf" does not mean that this

fact was known throughout the period of his incarceration at GCI. The Report

does not attempt to determine when "Bone" and "Fisher" were determined to be

"wolves".-^

101.

Swanson, while he initially refered to the movies as x-rated (he later

admitted he had no expertise in movie ratings) never described them as "hard-

core" and he most certainly never stated that they depicted anal penetration

(Swanson, p. 375-376). This latter attribution'is a transparent effort at trying

to connect the movies to the lawsuit. It is noteworthy that none of the inmate

Plaintiffs was sexually assaulted in the movies. The only connection to this

case is that Bronson, an admitted homosexual prostitute, claims that a black

inmate compelled by by threats to masturbate him (the black inmate). To

suggest that this was caused by the content of the movies is sheer speculation.

The reference in footnote 26 to Brierton's testimony is incomplete.

While Brierton did state that he had no clear opinion on the subject, he

acknowledged that there were two respectible schools of thought in respect to

13/

It should be noted that & wolf is a term used to describe an inmate who simply assaults other inmates. It

describes oe who preys upon weaker inmates or sheep. Plaintiff Johnson, for instance, was involved in a

number of fights as an aggressor. While he might have been termed assaultive, he was not a "wolf"

(Defendants' Ex. 21).

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the screening of movies with sexual content. One school regards such screening

negatively; the other regards them as harmless when viewed by adults (Brierton,

p. 338). As he further testified, it is difficult to get films without a sexual

content.

103.

The suggestion that Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982) or

any other case makes an administrator liable under Sectio 1983 for not doing

everything within the limits of his authority sets the law on its head and is

absolutely contrary to the holdings in Estelle v. Gamble, infra, and Davidson v.

Cannon, infra. The law requires that the superintendent not, by intentional act

or by reckless indifference to the rights of inmates, deprive those inmates of

their rights.

105.

(i) As addressed above, there was no evidence that TURNER did

fail to discipline staff for failure to patrol the dorms, and there was no proof

either that guards on a regular basis failed to patrol or that TURNER was

made aware of any such failure.

(ii) As addressed above, there was no evidence of wholesale

extortions committed by correctional officers, and no evidence that TURNER

was aware of any such extortions which he failed to investigate. The only

evidence of extortion by a guard was in regard to Dixon; TURNER, as

previously discussed, ordered the original investigations of Dixo and when they

failed to confirm wrongdoing, he still ordered the investigation to continue.

Far from a dereliction of duty, his conduct in this regard was aggressive — in

the relevant 5 years, he had criminal charges brought against 14 officers for

introducing contraband (supra), and against 12 visitors for the same offense;

Swanson specifically found that when staff violated the rules, they were

reprimanded (Swanson, p. 386).

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LAW OFFICES OF DAVIS CRITTON HOY & DIAMOND SUITE IOIO FORUM TJX I65S PALM BEACH LAKES BOULEVARD, WEST PALM BEACH. FLORIDA 334OI • TEL. (3OS) 478-2<lCIO

(iii) As discussed above, TURNER did direct his staff through post orders to forbid the draping of sheets in the dorm; there was no evidence that TURNER was ever made aware on any occasion that the orders were not being carried out, and there is no evidence that he failed to discipline any officer for not carrying out the order. As testimony of one inmate revealed, the occasions when any inmates draped sheets at the side of their bunk were actually rare -once or twice a week and. then for only a half hour at a time (Deposition of Greenwood, p. 7). In respect to two of these points, it is clear that the Magistrate has converted an absence of evidence into evidence that certain things did not occur. This violates the burden of proof placed upon the Plaintiffs to come forward with proof.
(iv) As addressed above, the assertions in this paragraph are a shocking distortion of the evidence which actually showed that there was an established procedure for reporting and investigation of sexual assault cases. Rectal exams and medical exams were a part of that procedure. There is no showing that a lie detector test would have been of any additional benefit in any particular investigation and no showing that the failure to give lie detector tests ever encouraged a single sexual assault. There was not an iota of evidence that a single rape was uninvestigated or not prosecuted due to any failure by TURNER to establish procedures. Any failure to investigate was due to a failure by inmates to report assaults, and any lack of prosecution of reported assaults was due to retraction by the alleged victims or their failure to identify assailants.
(v) As previously discussed, the Magistrate's findings in this paragraph are another gross distortion of facts. There was no evidence that the State Attorney was not consulted on rapes; there was positive evidence that his office was consulted; there was no evidence that the Inspector General had
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jurisdiction to investigate such assaults and no evidence that he had the

staffing to do so; finally, there was no evidence that any of the five sexual

assaults reported to the administration involved any facts which would warrant

possible prosecution under 18 USC Section 241: a critical element in any

violation of this statute is the existence of a conspiracy. Interestingly, the

annotations fails to reveal a single case in which this statute has been used to

prosecute an inmate assault on another inmate, 18 USCA Section 241. It must

also be noted that there was no showing that the institutional investigator was

unable to investigate adequately any inmate assaults.

(vi) As shown above, this conclusion also flies in the face of the

evidence showing dozens of prosecutions of inmates through disciplinary

proceedings for violating the limitations on movements in the compound.

(vii) As shown above, this conclusion also flies in the face of the

uncontradicted evidence of a number of transfers and swaps which took place

during TURNER'S administration and which involved problem prisoners. Since

there was no separate recording of swaps, they had to be culled from inmate

files; just in the small number of inmate files in evidence, evidence of swaps

and transfers of a number of problem inmates appear. Further, as shown

above, Willie Dock was in administrative confinement during the time that

Durrance claimed to be raped. Pryor was given a second chance by the

Classification Board; there is no specific evidence that TURNER participated

in the decision to give him this second chance.

108.

Contrary to the statement by the Magistrate, Swanson did not utilize his

"multi-variate" approach to corroborate the inmate's individual claims of their

assaults with the possible exception of Gordon and Johnson, where he found

that their files contained incident reports on non-sexual assaults.

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109.

In respect to Dr. Caddy's testimoy and in subsequently reviewing the

testimony of the Plaintiffs, it is significant to note first that he only had

occasion to interview the Plaintiffs briefly the weekend before trial (Caddy, p.

1141). Several tests, including MMPI, were administered at the same time by an

associate (Caddy, p. 1132).

Upon cross-examination, Caddy admitted that his opinion in respect to

the inmates' claims was dependent upon the honesty of those inmates in

responding to the questions he asked in the course of his brief interview with

each (Caddy, p. 1282). He had no independent source to confirm the truth or

accuracy of the statements given by each inmate (Caddy, p. 1293). In respect to

a number of these inmates, it became clear that they had been less than candid

in supplying their history to him (see e.g. Caddy, p. 1282-1292 re: Harper). He

further acknowledged that virtually all of these inmates had an underlying

conduct disorder and, consequently, possessed a manipulative personality

associated with conduct disorders (Caddy, p. 1284).-^ As Caddy noted, the

more intelligent the person with such a disorder, the greater the potential for

success in their manipulation.

In respect to Harper, he finally conceded that he was not prepared to

speak to that Plaintiff's veracity (Caddy, p. 1292). It is also noteworthy that

Harper's MMPI results revealed a significant finding of psychopathic deviancy.

In respect to Saunders, Caddy conceded that this inmate was one of the

brightest and most manipulative of the group. He further admitted that he was

in some doubt as to Saunders' credibility (Caddy, p. 1312).

111.

The Magistrate properly notes that both Durrance and Bronson failed to

report a rape to any prison official. His conclusion that the other three --

14/

Conduct disorders generally derive from childhood development (Caddy, p. 1284).

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118.
121. 122-129.

Harper, Aldred and Saunders -- reported that they were assaulted is based only on their testimony.
The sweeping and unwarranted conclusions set forth in this paragraph have previously been addressed in detail. One exception, however, is the allegation that inmate assaults "by and upon correctional officers" led to the creation of a climate where rapes would occur. In respect to the assaults upon inmates by officers, it has previously been noted that there was only one improper use of force over the relevant 5-year period (while 248 excess force complaints were filed against the other 27 institutions — an average of 9 per institution). It has also been noted that the officer responsible for that use of force was removed from his position following a full investigation initiated by TURNER. In respect to inmate assaults on officers, the Plaintiffs offered no comparative evaluation which might indicate that the number of such incidents at GCI was unusually high.
This paragraph reasserts the now refuted contention that rectal exams were not used at GCI (it is noteworthy in this respect that the two allegations of rapes reported to Lt. Lawson were retracted by the complainants after a medical exam, supra).
It is significant that although Aldred claimed to have told two dorm officers and a lieutenant that he had been raped, he could not remember the names of any of them, thus making it impossible for the Defendants to produce the anonymous officers in rebuttal (Aldred, p. 811, 817-818). Aldred also claimed not to know or be able to recognize his assailants (Caddy, p. 1170).
Aldred did claim that he told the psychologist at Lake Butler a few weeks later "exactly what had happened" at GCI — meaning, that he had been raped (Aldred, p. 827-828). Significantly, his medical records, while containing a report from the psychologist at Lake Butler, make no mention of a report of

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130-143.

rape. There is only a mention that Aldred had a vague fear of returning to GCI and wanted a transfer (Plaintiff's Ex. 13, tab C).
If a rape had occurred and if Aldred's comments to the officers at GCI did occur, there is no reason to suppose that he was any more clear in his report to them than he was to the psychologist — in both instances, Aldred claims he clearly reported a rape and yet his medical records do not reveal this. At most, he may have made claims of vague fears.
Aldred had a long history of confinement in mental hospitals in his youth (Caddy, p. 1167). Far from fitting the Magistrate's category of a weak, young white male, Aldred was a weight lifter who could easily handle 250-275 pounds (Aldred, p. 826). He was serving a sentence for first degree murder and perjury — the latter crime having been committed against a police officer (Aldred, p. 823-824).
As noted above, Durrance claimed that he was raped by several inmates on March 17, 1984, including Willie Dock (Durrance, p. 455, 465). Durrance claimed to be positive about both the date and identity of his attackers. A review of Plaintiff's Ex. 16, tab B, however, reveals that Dock had been placed in administrative confinement on March 14, 1984 and released from administrative confinement on March 20, 1984. Clearly, he could not have assaulted Durrance as Durrance claimed.
In view of the fact that Durrance made no report of any assault at GCI until he joined this lawsuit, and in view of the improbability in his story as to his assailant, the alleged assault is at best a highly questionable occurrence.
It should also be noted that Durrance, like Aldred, did not fit the Magistrate's profile of the victim group at GCI — Durranc'e was physically strong and, in his nine years in the prison system, had collected 25 disciplinary

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144-149.

reports; in addition, he had belonged to an inmate gang at another prison (Durrance, p. 516-518; Caddy, p. 1221).
Durrance's excuses for not reporting the alleged assault do not wash. In respect to his claim that he was fearful of blacks learning that he had been raped and thereby viewing him as vulnerable, it might be noted that if he were gang raped by a large group of blacks in a dormitory, he would certainly have expected that that fact would become known among the other prisoners. In respect to his claim that he was too embarrassed to report to the medical department for fear of being publicly viewed as a homosexual, it is perhaps sufficient to note that he has not been reluctant to broadcast his claim through the vehicle of this lawsuit to a substantial portion of the population of this State -- including its prison population. If he felt any real embarrassment over a sexual assault, it is highly unlikely that he would have joined this suit.
It is apparent that Durrance, who apparently had financial problems with Dock and others, and who sought protective confinement on that basis, has after-the-fact attempted to convert that situation into an alleged sexual assault for the benefits accruing in this suit.
Bronson, an admitted homosexual prostitute who voluntarily sold his favors at other institutions, claimed that he was compelled to do so at GCI only by force (Bronson, p. 717-718). Like Durrance, he admitted that he never made any report of sexual assaults or harassment while he was at GCI or for three years thereafter. During the intervening period, however, he was no stranger to litigation against the State, the DOC and its employees (Bronson, p. 720-721; 724-725). It is, therefore, remarkable at the least that, if he had suffered the incidents of which he complains in this suit, that he remained silent for so many years.

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150-160. 161-168.
15/

In footnote 48, the Magistrate noted Peters' testimony that the bathroom in the classification building where Saunders claimed that both Pryor and Roper raped him was so narrow that a person sitting on the toilet would hit his head against the wall if he leaned forward. The Magistrate went on to find that despite the narrowness of the room, the alleged assault could have occurred in it. This ignores the detailed description given by Music who measured the room and found it to be just over 4 feet square (51" x 54") -- barely more than a broom closet -- containing both a standard sink and toilet and having an inward opening door (Music, p. 113). In a room of that character, three people could not physically fit in; much less could two people force their way into such a confined space, close the door and undertake the alleged sexual assault as described by Saunders. It is noteworthy that Saunders' own estimate of the size of the room was more than double its actual size (Saunders, p. 598).
Harper's credibility has been addressed above. It is particularly significant in respect to his claim that he informed TURNER that he had been raped by Levi Fisher to note that both Harper and the former inmate-witness, Zatler, claimed to be present at the time. Zatler, however, does not concur with Harper in what was told to TURNER. Zatler states only that when he, Harper and the others were asked by TURNER why they were in confinement, "...we told him, because of Fisher."-^ (Zatler, p. 794-795).
Nor is this the only inconsistency in Harper's testimony in the record. As even the Magistrate's Report concedes, Harper's story that he was raped two weeks after arrival at GCI, and went into confinement the next day, is not supported by his inmate record which shows that he did not seek confinement until almost two months after the time he claims to have been raped. Harper told Dr. Caddy that he went to TURNER to tell him he had been raped; his
Zatler and perhaps several of the other inmates were consensual sexual partners of Fisher (Zatler, p. 790-792).

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169-172. 173-177.

testimony at trial, noted in the Report, was that TURNER came to him while he was in PC (Caddy, p. 1295). Harper's record contains several documents -noted in the Report -- indicating that Harper on several occasions made reports that he was raped at other institutions; he now denies the reports (Harper, p. 750-752). The reasons given by Harper for seeking PC following transfer from GCI is also inconsistent (Defendant's Ex. 15; Swanson, p. 70).
Finally, contrary to the testimony of Swanson and finding of the Magistrate that inmates had difficulty gaining protective custody at GCI, Harper had no such difficulty (Harper, p. 760).
Johnson was one of the Plaintiffs who did not claim to have been sexually assaulted. The Magistrate's Report (paragraph 172) states that the Defendants never produced to Plaintiff any report of the one physical assault in which Johnson claimed to have sustained an injury — the fight with Michael Lane. In fact, not only was the report provided by the Defendants, it was part of a Plaintiff's exhibit which was apparently ignored by the Magistrate (Plaintiff's Ex. 25). What the report reveals is that Johnson had provoked the fight by spitting in Lane's face and that Lane was punished with 90 days in disciplinary confinement for fighting (Plaintiff's Ex. 25, tab C). It is abundantly clear that the fight upon which Johnson based his claim was one arising not out of any "climate of fear", but out of a personal dispute between two inmates. It is also clear that the administration responded with severe penalties against Lane.
In respect to the Epprecht claim, it must be noted that this Plaintiff admitted that he never reported the alleged assault and, despite inquiries from officers at GCI who were skeptical of the story he gave of being accidentally injured, he refused to reveal any details of the assault to the authorities. TURNER had no reason to make any inquiry of Epprecht because no assault

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178-180. 181-183.
184-188. 189-195.

had been reported. The quote from Defendant's Ex. 7 from the Superintendent's Report of 2/81 omits the passage which explains the severe financial plight at GCI caused by budgetary limitation which made it necessary, to hold open the staff vacancies that month. Immediate assistance in solving this problem was requested.
The Report ignores the cause of the fight between Cobb and Pryor. Cobb -- whose assaultive conduct far exceeded that of Pryor (Defendant's Ex. 16) — was actively harassing Pryor's prison mate, apparently asking him for sexual favors (Pryor's deposition).
Gordon was another inmate who did not claim a sexual assault. It is noteworthy that while he reported all three incidents — and each was documented in the records of GCI -- he could not or would not reveal the assailants, making any resolution by the administration impossible. It is also noteworthy that while Gordon denied watching the movies which he claimed were pornographic, another inmate testified that Gordon often attended the movies with his sex partner (Deposition of Greenwood, p. 12). Finally, Gordon's weight loss must be seen in context of his weight -- he weighed 355 pounds prior to incarceration (Gordon, p. 316).
In respect to LaMarca, it must be emphasized that he never claimed to have been assaulted or injured at GCI.
In respect to Brown, it must be noted that the incident he alleged occurred well after TURNER retired from GCI and, thus, has no relevancy with respect to the time period. It is noteworthy that Brown's claim that he was raped and reported it to Lt. Minor was refuted both by the inmate records and the testimony of Music which established that Brown did not seek PC but was given it as a result of Music's learning from an informant that Brown was selling sexual favors to a large group of inmates (Music, p. 114). The claim of

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rape came only after Brown -- who has a long history as a molester and rapist

of young boys ~ was confronted with his conduct by the administration. At

that point, Brown apparently concocted his claim of rape as a cover to his

activities (see Caddy, p. 1313; Martinez Deposition, p. 4-7).

196.

The Magistrate's finding that the Plaintiffs' credibility is enhanced

because most of them did not initiate individual legal claims until they read

notices of the class action has no support in logic or common sense. A prisoner

is no less likely to fabricate a story — indeed, he is more likely to do so -- if he

thinks that in doing so he can "hitch his wagon" to an already alleged claim by

others who have set the scene for him.

Nor would concurrence by several of the inmates upon several general

topics be surprising since they were advised in advance of the then existing

claims made by LaMarca in the original action and were interviewed by

Plaintiffs' counsels' investigator to determine if they had any experiences in

these areas.

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III. OBJECTIONS TO CONCLUSIONS OF LAW

The Report and Recommendation now before the Court represents a clear departure

from established principles of law enunciated by the Federal courts. The case authorities

urged by Plaintiffs, and adopted in toto by the U.S. Magistrate, do not, it is respectfully

submitted, support an award in compensatory damages against Defendant, R. V. TURNER.

The Conclusions of Law, beginning on page 102 of the Report and Recommendation,

state that conditions in GCI were viewed by the U.S. Magistrate as being cruel and unusual

and, hence, in contravention of the Eighth Amendment. From this observation, the

Magistrate springboards to a conclusion that because TURNER knew or should have known

of these conditions, he must, through "callous indifference", be held liable to ten Plaintiffs,

proceeding together, in monetary damages.

The danger in such an approach is two-fold. First, by this rationale, the door is open

to any inmate who might have been incarcerated in GCI during TURNER'S administration to

bring an action seeking damages against this Defendant for any assault by a fellow inmate.

In effect, TURNER has been made an insurer. This may be highlighted by paragraph 226,

wherein it is stated:

Turner's failure to properly and prudently manage GCI matters within his administration and financial control is a direct cause of Plaintiffs' injuries. The exacting causation link required Williams v. Bennett, has been amply proven and documented.
(Emphasis by Magistrate)-^

The second danger, should the Report and Recommendation stand, is just as far

reaching. Where any group of plaintiffs get together and combine their allegations of

assaults or other tortious conduct, involving several alleged, separate incidents in respect to

time and identity of participants over a period of years, then any superintendent of any

correctional institution in this or any other state would find himself in the impossible

situation of defending against an action such as the one in the case before this Court. It

16/

Williams v. Bennett. 689 F.2d 1370 (11th Cir. 1982), as will be distinguished later on, does not provide for

this broad application of Eighth Amendment principles. The "affirmative link" has not been identified in the

Report and Recommendation.

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would be extremely difficult, if not impossible, to demonstrate proper and prudent management to the satisfaction of a U.S. Magistrate. In finality, recruiting any person to serve as a prison administrator in a setting that is complex and intractable would also be impossible.
After initial citations to the effect that while the Federal judiciary is reluctant to interfere with prison administration, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), but will scrutinize claims involving constitutional infringements, Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Report and Recommendation then proceeds to Eighth Amendment considerations.
Great emphasis is placed on Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982), and Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971). Both require careful perusal.
Williams v. Bennett, supra, involved a factual situation pertaining to a prison in Alabama which by comparison is substantially different from that at GCI. Prior litigation in Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala. 1976), aff'd with modifications sub nom. Alabama v. Pugh, 438 U.S. 81, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (1978), had determined that living conditions in the Alabama prison, including constant exposure to the constant threat of violence from other inmates, constituted cruel and unusual punishment in violation of the Eighth Amendment. (In the case before the Court, no such prior determination had been made.) Williams, in 1978, after the findings of the Pugh court, brought an action under 42 USC Section 1983, alleging that he had been stabbed by a fellow inmate. While recognizing that the prior litigation in the form of a class action had determined the cruel and unusual conditions in the Alabama prison, the appellate court found that it had no preclusive effect on the issue of individual consitutitional wrongdoing on the part of the defendants. Thus, the appellate court reasoned that for the plaintiff to prevail against any one defendant, he had to prove three things:
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1) That being confined in a dormitory with inmates other than minimum security
inmates without guards being present deprived him of his Eighth Amendment right to be free
from cruel and unusual punishment because of the danger of violence.
2) That the individual defendant intentionally, or by callous indifference, was a
cause of the constitutional deprivation.
3) That this deprivation was a legal cause of his injuries.
Williams v. Bennett, supra, at 1381. From this we learn that the existence of pervasive
conditions is not enough to support a damage award. As an example, the Court said:
...it would be unfair to penalize with personal monetary liability an individual Board of Corrections member whose vigorous efforts to hire sufficient prison guards, or to assign available so as adequately to staff the dormitories, were overruled by the contrary views of a majority of the Board. On the other hand, it would be highly relevant to the establishing of personal liability to introduce evidence that an individual defendant, having jurisdiction over an adequate number of guards and over Williams' dormitory at the time of the stabbing announced: "I'm not going to station a guard in that dorm. Those prisoners deserve what they can do to one another".
Williams v. Bennett, at 1383. The appellate court also noted:
There can be no duty, the breach of which is actionable, to do that which is beyond the power, authority, or means of the charged party. One may be callously indifferent to the fate of prisoners and yet not be liable for their injuries. Those whose callous indifference results in liaiblity are those under a duty — possessed of authority and means — to prevent the injury.
(Emphasis added)
Williams v. Bennett, supra, at 1384. This then is the affirmative link which is missing and
overlooked in the Report and Recommendation. It has not been proven that the conditions at
GCI, whatever they might have been, caused the injuries to the particular Plaintiffs at the
particular times of each occurrence.
Callous indifference, as the Williams v. Bennett decision indicates, will not, standing
alone, justify imposition of liability and this is particularly true where, as noted above, the
means available are limited. In fact, callous indifference of an individual, if it exists, may
not be actionable at all.
In contrast, however, we are called upon to consider the liability of individual state employees for injuries suffered as a result of the unconstitutional conditions. Unlike the slate, an individual defendant generally has neither the power to operate
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nor close down a prison. Moreover, we refuse to adopt the position that an employee who attempts to accommodate the constitutional rights of prisoners in his charge, within the financial limitations imposed, should, instead, resign from his position because of the realization that full compliance is impossible in the absence of adequate funding. Indeed, the corrections official who walks away could be said to act with greater indifference than those who remain and attempt to work within the system.
Williams v. Bennett, at 1388. The U.S. Magistrate recognized Defendant, TURNER'S,
limitations and stated:
Defendant Turner has presented evidence which focuses upon the inherent limitations within which he performed his duties as Superintendent at GCI. These limitations relate to fiscal realities in attempting to comply with various constitutional norms. Turner articulated these limitations in describing two overriding problems during his administration. (1) the lack of staff, and (2) the physical plant. The Court is sensitive to the inherent financial problems incurred by Turner, or for that matter, any higher level correctional official occupying the position of Superintendent at CCI. Limited financial resources however is not dispositive of Turner's potential liability in this case. Rather, the issue to be considered is whether "full compliance [of constitutional norms] is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority". Williams v. Bennett. 689 F.2d 1370, 1387-88 (11th Cir. 1982).
(Emphasis added)
Report and Recommendation, p. 45-46. The reference to Williams v. Bennett, to which
emphasis has been added is incomplete and misleading. The full passage reads:
...One such limitation may have been the funding available to comply with the constitutional norms. Because the element of callous indifference focuses on a defendant's intent, see Fielder v. Bosshard. 590 F.2d 105, 109 (5th Cir. 1979), if full compliance is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority, then he cannot be said to have acted with callous indifference.
Bennett v. Williams, at 1387-88. See also Hamm v. Dekalb County, F.2d 132 (11th Cir. 1985);
Fielder v. Bosshard, 590 F.2d 105, 109 (5th Cir. 1979), states that malicious intent refers to acts
which are "substantially certain" to result in the consequences of which the plaintiff is
complaining.
The seven items which are thereafter listed on pages 46 and 47 of the Report which
the Magistrate believes would have minimized or eliminated the likelihood of rape and
assaults of the various Plaintiffs at GCI do not demonstrate any malicious intention. Briefly:
(i) failure to discipline officers not regularly patrolling the dorms; (ii) overall laxity in
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disciplining officers; (iii) failure to cause staff to have inmates remove sheets draped from

bunks; (iv) failure to promulgate rules to investigate rapes; (v) failure to use outside

investigative and prosecutorial assistance of other branches; (vi) failure to institute inmate

movement controls; and (vii)

Failure to transfer troublesome inmates through requests

to DOC, are all at best, matters of omission, not deliberate or malicious intention to harm or

injure Plaintiffs. They, at best, represent the thoughts of the author as to measures,

reviewing the situation retrospectively, that he might have taken. But most of all, as shown

in the response to factual findings, they are not supported by the record.

Many of the cases cited in the Report and Recommendation are based on negligence

and it now appears certain that negligence will not give rise to a claim under 42 U.S.C.

Section 1983. One such case, Davidson v. O'Lone, 752 F.2d 817, sub nom Davidson v. Cannon, et

QL,

U.S. , Case No. 84-6470, January 21, 1986, which holds that protections of the

Due Process Clause are not triggered by lack of due care by prison officials, and this is true

even where a state remedy is unavailable. See also, Daniels v. Williams,

U.S. , Case

No. 84-5872, decided the same date. See also Owens v. City of Atlanta, Cir. Jan. 30, 1986).12/

F.2d 1898 (11th

The second case upon which Plaintiffs heavily rely, Roberts v. Williams, 456 F.2d 819

(5th Cir. 1972), is of dubious precedential value. Again, the Report and Recommendation

(page 106) contains an incomplete citation, viz. "(Section 1983 liability premised upon a

'callous indifference to [inmate suffering] at the management level, in the sustained knowing

maintenance of bad practices and customs'". The full sentence reads:

...Thus in an Eighth Amendment case, if there were, as here, no conscious purpose to inflict suffering, we would look next for a callous indifference to it at the management level, in the sustained knowing maintenance of bad practices and customs.

17/

Cases which predicate their holding on a negligence standard include: Beverly v. Morris. 470 F.2d 1356 (5th

Cir. 1972); Withers v. Levine. 615 F.2d 158 (4th Cir. 1980); Doe v. District of Columbia. 701 F.2d 948, 961

(Dist. of Columbia, 1983); Woodhous v. Commonwealth of Virginia. 487 F.2d 889 (4th Cir. 1973); Matzker v.

Herr. 748 F.2d 1142, 1146 (7th Cir., 1984.

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Roberts v. Williams, at 827. But, ignored by Plaintiffs and the Magistrate is the concurring
opinion of Judge Simpson rejecting Eighth Amendment application (page 834) and the
Addendum of Judge Nichols which reads:
The panel directed that publication of the foregoing opinions be withheld, at the request of a Fifth Circuit judge not a member of the panel. The reason his anticipation that the deliberations of the judges of the Circuit, sitting en bane, in Anderson v. Nosser. 456 F.2d 835, might produce conclusions inconsistent with our majority opinion, respecting the application of the Eighth Amendment to instances of mistreatment of prisoners in custody. No one had requested rehearing in Roberts v. Williams, and it would have been a needless imposition on the parties for the court to order sua sponte. The anticipation mentioned has been so far realized that on March 3, 1972, a majority of the active judges of the Circuit decided forthrightly that no violation of Eighth Amendment rights warranting the direction of a verdict as to liability was made out below. Meanwhile, in Roberts v. Williams, the plainitff, Roberts, petitioned for certiorari and it was denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971). In view of the foregoing, the panel has decided to add what follows before publication. We modify our opinion so as to declare that the liability of the defendant, Arterbury, rests upon Mississippi law applied under the doctrine of pendent jurisdiction. The discussion of the meaning of the Eighth Amendment as applicable to the plaintiff, Roberts, remains relevant primarily in answering defendant, Arterbury's, contention that the complaint should have been dismissed for failure to state a federal claim. It is to be taken also as reflecting the impact of the decision below and the briefs and arguments of counsel in Roberts v. Williams, upon the minds of a majority of the panel, as of April, 1971. If we had to decide the same issues again, we would of course be guided by Anderson v. Nosser and by other recent authorities.
Our slip opinion included two references to the panel opinion in Anderson v. Nosser. The first we are asking the publisher to delete. The second at p. 830, should stand as it deals with personal immunities of state officials, a matter not discussed in the en bane opinion as it was in the panel opinion; therefore, what is said in the panel opinion remains properly citable.
The individual views of Circuit Judge RIVES and Judge NICHOLS on the subject of Eighth Amendment rights remain unchanged.
Roberts v. Williams, at 834-35. The opinion seems to have been withdrawn or at best limited
as an expression of the individual Eighth Amendment views of Judges Rives and Nichols as
they existed in 1971.
Other cases relied upon for imposing liability are readily distinguishable. Miller v.
Solem, 728 F.2d 1020 (8th Cir. 1984), an appeal from a summary judgment in favor of prison
officials, was affirmed with the court holding:
...To sustain this claim [Eighth Amendment], Miller "must show something more than mere inadvertence or negligence. He must show the defendants were deliberately, indifferent to his constitutional rights, either because they actually
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intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates" ... Hence, "deliberate indifference" denotes both recklessness and actual intent. Miller v. Solem, at 1024. In Wade v. Haynes, 663 F.2d 778, 781 (8th Cir. 1981), after a trial by jury, the court directed a verdict in favor of a prison superintendent, but awarded compensation and punitive damages against one correctional officer who placed plaintiff in a cell with two other inmates who beat and sexually assaulted him. Applying the test that deliberate deprivation may result from actual intent to deprive him of his rights or from recklessness in ignoring known threats, only the correction officer was found liable. The directed verdict in favor of the warden was upheld. Finally, in Stokes v. Delcambre, 710 F.2d 1120 (5th Cir. 1983), a jury verdict against a sheriff who had been held liable for injuries inflicted on an inmate was upheld. The distinguishing feature of this case was that the Sheriff was under a federal order to separate the inmates according to nature and type of crime — which he did not obey -- the jail was manned by only one jailer and he provided no rules whatsoever for running the jail -- this was a matter left to the jailers. At trial, when asked, if under the same circumstances would he do the same things, he replied, "Yes, I would do the same thing again". Stokes v. Delcambre, at 1127. From the evidence, the appellate court concluded that the evidence was sufficient to support a jury verdict that the sheriff's actions were "maliciously, wantonly, and opppressivelv done", (at 1127). No case has been cited in the Report and Recommendation that supports the conclusion that, even if a pervasive risk of harm exists in a prison setting, any assault or other tortious conduct among inmates will subject the superintendent to absolute liability. Something more is needed. Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), a case most familiar to plaintiffs' counsel, involved a county jail in Mississippi, where inmates were permitted to run the jail and even maintained a prisoner-run kangaroo court that inflicted physical and sexual abuse on other prisoners. Even so, plaintiff Jones was unable to prove any injury to which he would be entitled to compensatory damages and the trial court's finding as to other plaintiffs — that there was insufficient, corroborating evidence that the
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incidents occurred or that the facts did not support a finding of negligence on the part of

prison officials -- was left undisturbed. Jones v. Diamond, at 1380-81.

In Williams v. Field, 416 F.2d 483 (9th Cir. 1969), cert, den.. 397 U.S. 1016, 90 S.Ct. 1252,

25 L.Ed.2d 431 (1970), an inmate lodged a complaint that his life had been threatened by a

fellow inmate. The authorities refused him protective custody ("lock up"). The inmate was

subsequently assaulted. In dismissing the Section 1983 action, the court concluded:

...that the complaint did not allege intentional conduct by the defendants, and second, that the conduct complained of did not violate any federally secured rights. The court held that at most the allegations made out an "unintentional common law tort".

Williams v. Field, at 485. This reasoning appears to be in line with Davidson v. Cannon,

U.S.

, Case No. 84-6470, January 21, 1986.

The appellate court, in approving the dismissal, said:

...In the factual surroundings of a prison it is thus necessary to show a bad faith oppressive motive in order to make out a violation of the equal protection clause out of an isolated instance of failure to protect a prisoner from attack by a fellow inmate. No such bad faith motive appears in the instant case.

Williams v. Field, at 486.

In a recent case, Wheeler v. Sullivan, 599 F.Supp. 630 (D. Del. 1984), a prison warden

was held not to be liable in a case factually almost identical to the individual claims asserted

before this Court. It was there alleged by plaintiff Wheeler, an 18 year old white male, that

he was sexually assaulted by a black inmate a day or two after his entry into a state prison.

One year before the incident, a governor's task force had made an investigation of the prison

and reported, among other things: (1) that the institution was overcrowded; (2) that the

correctional staff required professionalization (many correctional officers were found to have

conviction records and placement of officers on duty without training was a regular

occurrence); and (3) that homosexual rapes were frequent with correctional officers in some

instances having become callous and having accepted the act as a part of prison life. (Wheeler

v. Sullivan, at 636). In dealing with Wheeler's complaint that the policies and conditions of

the prison resulted in his being assaulted and sodomized, the district court said, at 640-41:

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Personal security, like medical care, is one of life's necessities to which inmates are entitled in "minimal civilized measure". Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). If the need for personal security is not met by prison authorities, it will not be met. If there is a failure to meet that need, pain and suffering may result which no one suggests would serve any penological purpose. At the same time, a negligent failure to provide personal security, like a negligent failure to provide medical care, "cannot be said to constitute 'an unnecessary and wanton infliction of pain' or to be 'repugnant to the conscience of mankind'".
For these reasons, I conclude that Wheeler is entitled to recover if he has shown that one or more of the defendants were deliberately indifferent to a substantial risk that he would incur serious personal injury. He cannot recover, however, if he has failed to establish his degree of culpability on the part of any of the defendants.
The second relevant legal principle is that one may not be held vicariously liable under Section 1983 for the misconduct of another. Rizzo v. Goode. 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Hampton v. Holmesbure Prison Officials. 546 F.2d 1077 (3d Cir 1976); Kins v. Cuvler. 541 F.Supp. 1230 (E.D. Pa. 1982). Thus, the relevant question is not whether subordinates of these defendants were deliberately indifferent to a substantial risk of serious injury to the plaintiff, but whether any of the defendants exhibited such indifference.
Finally, plaintiff must show a causal connection between a defendant's deliberate indifference and the injury for which compensation is sought. Parratt v. Taylor. 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); McKenna v. County of Nassau. 538 F.Supp. 737 (E.D.N.Y. 1982), affd 714 F.2d 115 (2d Cir. 1982); Redmond v. Baxlev. 475 F.Supp. Ill (E.D. Mich. 1979). Thus, even if Wheeler can show some deficiency in a defendant's performance rising to the level of deliberate indifference, that deficiency must be one of the proximate causes of the June 7th assault.
Each claim made by Wheeler was examined in depth and the district court, after a careful
and closely reasoned analysis in respect to each claim, entered judgment for all defendants,
concluding:
The plaintiff in this action was a victim of a homosexual rape on June 7, 1980 while an inmate at the Delaware Correctional Center. Tragically, his misfortune was not an isolated occurrence at that time and place. I have concluded, however, that the assault upon plaintiff occurred, and the problem of homosexual violence existed at DCC, in spite of the efforts of Commissioner Sullivan and Warden Redman rather than because of any indifference on their part. Since Bureau Chief Jones, the only other defendant, was not employed by the Department of Corrections in June of 1980, judgment must be entered against plaintiff on his assault claim.
I also conclude that the conditions of Wheeler's confinement at DCC did not at any time constitute cruel and unusual punishment and that any violation of his right to due process of law is not the responsibility of any of these defendants.
Finally, I find no violation of plaintiff's rights under the Constitution and laws of the State of Delaware. Judgment will be entered for the defendants.
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LAW OFFICES OF DAVIS CRITTON HOY 5, DIAMOND
SUITE IOIO FORUM TH. I6SS PALM BEACH LAKES BOULEVARD, WEST PALM BEACH, FLORIDA 33-4OI . TEL. (3O5) 17B-24OO

Wheeler v. Sullivan, at 652. This case, it is respectfully submitted, represents the better view
in light of recent Supreme Court decisions in an Eighth Amendment application. There must
be more than a negligent failure; a high degree of culpability must be established, vicarious
liability cannot be applied for the misconduct of another under Section 1983, and above all,
there must be a causal connection established between any alleged unconstitutional condition
and the actual occurrence of the assault. Footnote 6 of the Wheeler opinion is worthy of
examination. It reads:
See also Patzie v. O'Neil. 577 F.2d 842, 847-48 (3d Cir. 1978):
In order to establish a constitutional violation under the Eighth Amendment, it is necessary that there be a deliberate indifference to the prisoner's needs. See Estelle v. Gamble. 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hampton v. Holmesbure Prison Officials, supra [546 F.2d 1077] at 1081 [3d Cir. 1976]. A reading of the evidence before the district court reveals that police personnel may have acted negligently, perhaps even callously; but such actions do not amount to the "intentional conduct characterizing a constitutional infringement". Id,, at 1078. "More is needed than a naked averment that a tort was committed under color of state law..." Gittlemacker v. Prasse. 428 F.2d 1, 6 (3d Cir. 1970). On the record before us, we find that no such intentional conduct was shown. Consequently, the district court did not err in entering a directed verdict in defendants' favor with respect to the "cruel and. unusual punishment" claim. Dennenv v. Sieeel. [407 F.2d 433 (3d Cir. 1969)], supra.
The same result is reached under a due process analysis under the Fourteenth Amendment. Some courts have refused to treat as punishment conduct that is not ostensibly intended to serve some legitimate penal objective, but have nonetheless found a proscription of wanton and unnecessary infliction of pain under a due process theory. See Rhodes v. Robinson. 612 F.2d 766, 771-72 (3d Cir. 1979); Curtis v. Everette. 489 F.2d 516 (3d Cir. 1973); Johnson v. Glick. 481 F.2d 1028 (2d Cir. 1973); cert. den. 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). The test under this theory is whether the conduct "shocks the conscience". Rochin v. California. 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952); Rhodes v. Robinson, supra. The crucial question is the manner of infliction of the injury; an improper state of mind by those causing the injury is required. Rhodes v. Robinson. supra; Holmes v. Goldin. 615 F.2d 83, 85 (2d Cir. 1980).
Thus far, the examination of the Report and Recommendation has emphasized the
error in holding Defendant, TURNER, liable in damages to the 10 individual claims of the
Plaintiffs. Other points, however, must be addressed, at least in brief.
A. Turner's Knowledge of Pervasive Risk of Harm
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LAW OFFICES OF DAVIS CRITTON HOY S. DIAMOND SUITE IOIO FORUM H I I6SS PALM BEACH LAKES BOULEVARD, WEST PALM BEACH, FLORIDA 334OI • TEL. (3OS) •478-2-3OO

It is concluded that TURNER knew of security problems through official documentation (the grand jury report of 1980, his letter to Wainwright, the 1980 Inspector General's Report, the 1983 Inspector Report, and the Barrett and Dixon incidents. Taken in true perspective, these do not support the proposition that TURNER knew of pervasive risk of harm of sexual assaults upon inmates. None of the documents suggest inmate abuse. The staff shortages were recognized by TURNER and he tried in good faith and through the most vigorous means to correct the matter. That was the very purpose of the letter to Wainwright — I need more staff. The "out of control" statement has been taken completely out of context and the record shows that as a result of TURNER'S letter and other efforts, the situation did improve. As shown in Williams v. Bennett, supra, a prison superintendent would be deliberately indifferent if he walked away from a problem institution. Furthermore, a superintendent may not be held liable where prison conditions such as overcrowding or understaffing are beyond his control. Pento v. Nettleship, 737 F.2d 130 (1st Cir. 1984). As to the grand jury and Inspector General reports, it must be noted that no reference was made to any inmate injury — nor was there any indication that any direct action was required of TURNER.-^/ Finally, the two correctional officer incidents finally ended in their removal from GCI. Next, it is reasoned that TURNER should have known of a pervasive risk of harm because of an alleged free flow of contraband and frequency of assaults. The fallacy of the factual basis for this conclusion has been addressed. The Magistrate's finding was drawn from testimony of Dr. Richard Swanson and was based upon his subjective conclusion. Not once did Dr. Swanson confer with TURNER before or during the trial as to procedures that TURNER actually followed or implemented at GCI. Corroboration of Dr. Swanson's testimony was non-existent at best.
B. Series of Isolated Incidents

18/

Although, as noted above, the Inspector General's report found that Turner had implemented all relevant

recommendations set forth in the Grand Jury report.

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LAW OFFICES OF DAVIS CRITTON HOY S. DIAMOND SUITE IOIO FORUM HL I6SS PALM BEACH LAKES BOULEVARD, WEST PALM BEACH, FLORIDA 3 34OI • TEL. (3OS) 478-E4OO

As discussed before, the incidents which Plaintiffs alleged occurred, if at all, at different times, dates, places and with different participants. The one thing bringing them together is this action. The Magistrate's Report fails to analyze the alleged conditions at GCI individually in respect to each claim. As shown above, certain conditions, such as the understaffing, changed during the entire period. Certain of the alleged inmate assailants present at certain times were not present at other times. Thus, even if the factual basis for the allegedly unconstitutional conditions were established (and, as shown above, they were not), it would still be necessary to establish that these conditions were in existence at the time of each alleged assault.
C. Iniunctive Relief The appointment of the committees to run GCI was not appropriate. During the trial, the U.S. Magistrate found that Plaintiffs' proof was directed to the imdividual damage claims and that the Plaintiffs were not prepared to present a case for injunctive relief. He thereupon "adjourned" the class action aspect of the case seeking injunctive relief (see p. 250252, Swanson's testimony). At that point, it would have been improper for the Defendants to present evidence countering the Plaintiffs' claims in respect to current conditions and they did not do so, acting in reliance upon the Magistrate's rulings. Now, after the conclusion of the evidentiary presentation, and predicated upon supposition rather than evidence, the Magistrate has undertaken to recommend the establishment of a commission upon a determination by him that the Plaintiffs' claims as to the current conditions at GCI were well-founded. This was but another action by the Magistrate that quite simply prevents the Defendants from having a proper day in Court. It was improper to advise counsel that he would not undertake consideration of a claim and then -- after the defense, in proper reliance upon the representation, had withheld its evidentiary presentation upon the subject proceed to recommend findings that the conditions alleged by the Plaintiffs continue to exist.
P. Breach of Duty Imposed bv State Law
65
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It is important to note that the duty that the Magistrate draws from Section 20.315, Florida Statutes, and attempts to impose upon TURNER, is expressly applied by the statutory language only to the Department of Corrections and not to the individual superintendents.
66
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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished, by U.S. mail, this

18 day of March, 1986, to DAVID M. LIPMAN,

ESQUIRE, 5901 S.W. 74 Street, Miami, FL 33143-5186, and WILLIAM AMLONG, ESQUIRE,

524 South Andrews Avenue, Fourth Floor, Fort Lauderdale, FL 33301.

Walter M. Meginniss Assistant Attorney General DEPARTMENT OF LEGAL AFFAIRS The Capitol - Suite 1501 Tallahassee, FL 32301 (904) 488-1573
and
DAVIS, CRITTON, HOY & DIAMOND Attorneys for Post Office Box 3797 West Palm Beach, FL 33402 (305) 478-2400
Attorneys for Defendants

MICHAEL B. DAVIS

67
LAW OFFICES OF DAVIS CRITTON HOY 5. DIAMOND SUITE IOIO FORUM HI. I6S5 PALM BEACH LAKES BOULEVARD, WEST PALM BEACH, FLORIDA 33«OI • TEL. (3OS) 1 7 8 - 2 4 O O

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, et al.,

Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, et al.,

Defendants.

PLAINTIFFS' REPLY MEMORANDUM TO DEFENDANTS1 RESPONSE AND
OBJECTION TO MAGISTRATE'S REPORT

DATED- 2 June, 1986

DAVID M. LIPMAN ROBERT E. WEISBERG
LIPMAN & WEISBERG 5901 S.W. 74 Street Suite 304 Miami, Florida 33143-5186 (305) 662-2600
WILLIAM AMLONG
Hall & Amlong, P.A. 5245 Andrews Avenue Suite 400E Ft. Lauderdale, FL 33301 (305) 944-4297
ATTORNEYS FOR PLAINTIFFS
i n n mum i LaMarcav. Turner PC-FL-0007-0028

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, et al.,

Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, et al.,

Defendants.

PLAINTIFFS' REPLY MEMORANDUM TO DEFENDANTS' RESPONSE AND OBJECTION TO MAGISTRATE'S REPORT

DATED: 2 June, 1986

DAVID M. LIPMAN ROBERT E. WEISBERG
LIPMAN & WEISBERG 5901 S.W. 74 Street Suite 304 Miami, Florida 33143-5186 (305) 662-2600
WILLIAM AMLONG
Hall & Amlong, P.A. 5245 Andrews Avenue Suite 400E Ft. Lauderdale, FL 33301 (305) 944-4297
ATTORNEYS FOR PLAINTIFFS

TABLE OF CONTENTS
I. OVERVIEW OF THE MAGISTRATE'S REPORT AND RECOMMENDATIONS A. THE FACTUAL FINDINGS
B. CONCLUSIONS OF LAW
II. INITIAL LEGAL ISSUES A. THE STANDARD OF REVIEW 1. BACKGROUND 2. A "DE NOVO DETERMINATION" a. ADOPTION OF THE MAGISTRATE'S FINDINGS DOES NOT REQUIRE FURTHER EVIDENTIARY PROCEEDINGS b. REJECTION OF THE MAGISTRATE'S FINDINGS REQUIRE FURTHER EVIDENTIARY PROCEEDINGS B. THE JURY DEMAND 1. THE LEGAL STANDARD REGARDING WAIVER OF RIGHT TO JURY TRIAL 2. THE MAGISTRATE'S FINDINGS ON THE JURY ISSUE ARE CORRECT C. THE CONTINUANCE 1. THE LEGAL STANDARDS 2. THE FACTUAL CONTEXT D. RECUSAL 1. DEFENDANTS' POSITION 2. RECUSAL WAr PROPERLY DENIED
III. DEFENDANTS' OBJECTIONS TO THE FACTUAL STATEMENTS A. INTRODUCTION

Page
1 2 5 6 6 6 7
7
8 9
10
11 15 15 16 20 20 22
24 24

B. ANALYSIS OF DEFENDANTS' OBJECTIONS

26

IV. CONCLUSIONS OF LAW

95

V. CONCLUSIONS

102

I. OVERVIEW OF THE MAGISTRATE'S REPORT AND RECOMMENDATIONS
During a two week trial held in the United States District Court for the Southern District of Florida in Miami, Florida on December 2-6, 9-13, 1985, Magistrate Peter Nimkoff, pursuant to Local Rule l(f) (Magistrate Rules of the United States District Court, Southern District of Florida), heard testimony of 27 witnesses; reviewed a series of exhibits of deposition testimony of additional inmate-witnesses; requested, received and closely reviewed extensive post trial submissions; and heard oral argument of counsel on December 7, 1985. The Court, pursuant to Rule 52(a) F.R.C.P. and Local Rule(l)(f), supra, then issued, on January 8, 1986, an extensive 135 page Report and Recommendation which found Defendant R.V. Turner liable for monetary relief to ten (10) former inmates of the Glades Correctional Institution (herein "GCI"); and ordered corrollary injunctive relief in the form of the convening of two committees, one of penologists and the other of psychologists/psychiatrists, to assist and "advise the Court in the formulation of specific injunctive relief."— (¶257,
Report and Recommendation of January 8, 1986) [herein "11 , Findings" or "¶ " ] .
1./ The goal of the committee of penologists, as envisioned by the Magistrate is two-fold. The Committee is to identify other rape victims at GCI, not previously identified by this litigation, "so that they may be provided whatever therapeutic assistance" (¶258, Findings) as needed and also, as a "more far reaching goal...to prevent a recurrence of the assaults, extortions, and homosexual rapes" at GCI. ibid.
(Footnote continued on next page)

A. THE FACTUAL FINDINGS
The Magistrate's Report and Recommendation, consistent with
Rule 52(a) F.R.C.P., is divided into Findings of Fact (¶¶ 29-
300), and Conclusions of Law-7 (1111 200-267). In the Findings
of Fact, the Magistrate:
First, offers a history (¶¶ 29-30) and general overview (¶¶
31-35) of GCI;
Second, outlines a general context (¶¶ 36-105) for
consideration of Plaintiffs1 claims. (¶36) ("The individual
named Plaintiffs' damage claims can be analyzed only within the
context of the general operational policies, practices,
conditions and events existing at the general time period in
which their claims arise.") This context related to the:
(Footnote 1/ continued from previous page.)
The second committee of psychiatrists/psychologists also was given a two-fold mission. The committee was not only to prescribe a "treatment plan" (¶259) for the Plaintiffs and witnesses who remain incarcerated but to additionally "develop an internal mechanism within the prison for providing the male rape victims of Glades Correctional Institution the same kind of support that female rape victims on the outside receive from rape crisis centers." Ibid.
As directed by the Magistrate (¶26O), Plaintiffs filed their nomination for one member of each committee within 30 days of the Reported Recommendation. Notwithstanding that Defendants have never sought a stay or otherwise obtained relief from the Magistrate's Report, Defendants have not filed any nominations for the committees.
2/ The Magistrate additionally set forth the procedural background of this litigation, dating back to its initiation more than four (4) years ago through the filing of a hand written pro se complaint by Anthony La Marca, (¶¶ 1-15) and also addressed the matter of the denial of Defendants' jury demand, (¶¶ 16-27), a denial which was affirmed by this Court prior to the commencement of trial on December 2, 1985. See, infra. Pg. 9 n.6.
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(a) general knowledge of Defendant Turner as to the nature and depth of security problems existing at GCI during the relevant time period of Plaintiffs' damage claims (1980-1984) (¶37) as evidenced by official documentation and other evidence reflecting gross security problems (¶¶ 38-56); (b) Defendant Turner's failure to properly supervise personnel and manage GCI (¶¶ 57-70) insofar as his (i) failure to train staff (¶¶ 57-58); (ii) failure to control the staff (¶¶ 59-60); (iii) failure to supervise staff (¶¶ 61-63); (iv) lack of procedures for investigating rapes (¶¶ 64-67) and (v) failure to investigate or even be aware of this lawsuit, notwithstanding staff involvement and commitment to investigate certain inmate allegations in the context of earlier judicial proceedings in this case. (¶¶ 68-70); (c) Defendant Turner's failure to promulgate even the most elementary procedures to minimize the likelihood of rapes and assaults (¶¶ 71-102). (i) This failure occurred, notwithstanding various indicia which a prudent administrator would discern as a clear indication that inmate rapes were occurring, (¶¶ 71-79). (ii) Standard procedures could have been, but were not, implemented to investigate the rapes (¶¶ 81-82) nor did the Defendant request invaluable investigative or prosecutorial assistance to reduce the rapes and assaults that were occurring. (¶¶ 83 -88). (iii) Inmates were allowed free ingress and egress within the GCI compound and dormitories throughout the Turner administration, but inmate movement was later controlled by Turner's successor (¶ 89-91); and (iv) the improper stationing of officers, which
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increased inmate security risks (Ml 92-94); (v) the Defendant's failure to transfer "wolves11 who "assaulted, extorted and sometimes raped more vulnerable inmates" (11 95), (1(11 95-100); (vi) the showing on a "regular basis" at GCI (1Í 101) of "[h]ardcore pornographic video movies showing explicit acts of intercourse and anal penetration" (Ibid.) which "only served to maximize the possibility of sexual and other violence" (11 102); (1111 101-102), and finally, (d) the consideration and resolution that the activities at GCI were "not beyond the control of Mr. Turner and that even in light of the financial limitations and realities in which he operated, his conduct fell short of accepted and prudent correctional practices." (II 104), (1111103-105);
Third, the Magistrate extensively reviewed the facts surrounding the rapes of the Plaintiffs, (¶¶ 106-121) including (i) a review of Plaintiffs1 expert corroborative psychological testimony, (Ml 107-110); and (ii) general principles and considerations of rape which provided additional corroboration and amplification of Plaintiffs' claims. (Ml 111-121).
Fourth, the Magistrate traced in detail the experience of each Plaintiff and witness in exploring the circumstances surrounding their rape and/or assault victimization. (MI122-195).-7
3./ In a final section of the Findings. (¶¶ 196-199), the Magistrate reviewed additional reasons which it felt corroborated the credibility of the Plaintiffs' allegations of rape and assault.
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B. CONCLUSIONS OF LAW First, the Magistrate reviewed the general legal standards applicable to prisoner damage cases of this nature, (1111200-207), concluding that Plaintiffs bore the burden of proving that "[t]he prison official's conduct constitutes a careless or callous indifference to the rights and safety of the prisoners in his charge" (emphasis added), Williams v. Bennett. 689 F.2d 1370, 1380 (11th Cir. 1982), cert, denied. U.S. , (1985) (11206). [other citations omitted]. Second, in applying the "conscious or callous indifference" standard, the court further analyzed a series of factors which "interplay" with S1983 liability actions of this nature. (11207) (1) The Magistrate considered Turner's knowledge of a pervasive risk of harm to the inmates (1(11208-211), and concluded that, based upon a variety of reasons, Turner knew (11210) or should have known of "widespread illegal activities [at GCI] in general and risks of harm to inmates' security in particular."(1(209) (2) Next, the Magistrate addressed whether the conditions at GCI were within Turner's financial and administrative control, (1IK 212-215). The Magistrate identified "a series of administrative areas within Turner's managerial control which also impose no fiscal limitations as evidenced in part by corrective measures taken by Turner's successors "(1(215), and concluded that conditions which were casually related to the Plaintiffs' injuries were within the Defendants' control. (3) The Magistrate additionally rejected the Defendants' argument that the various abuses perpetuated
-5-

upon Plaintiffs were merely isolated incidents, (¶¶2I6-2I8). (4) Finally, the Magistrate considered breach of State Law as a source for Defendant Turner's liability. (1111219-222).
Third, the Magistrate reviewed the elements of causation, (1(11223-230), concluding that "Defendants' conduct was a proximate cause of the Plaintiffs' injuries."
Fourth, having determined that constitutional violations had occurred, the Magistrate addressed the issue of qualified immunity and determined that Turner enjoyed no good faith defense predicated on an immunity basis, (¶¶23l-237).
Fifth, the Magistrate addressed in detailed fashion the standards and application of those standards to the issue of damages, (¶II238¯253), resolving that the named Plaintiffs be awarded damages in an aggregate of $201,500. (1(253).
Sixth, the Magistrate reviewed the legal standards for the issuance of injunctive relief, (1(1(254-260), concluding by the implementation of the two committees previously discussed.—
II. INITIAL LEGAL ISSUES A. THE STANDARD OF REVIEW 1. BACKGROUND
Pursuant to Local Magistrate Rule l(f) of the United States District Court for the Southern District of Florida (Prisoner
4/ As a final matter, the Magistrate considered and resolved the issue of the adequacy of the named Plaintiffs' representation of their class. (¶¶26l-267).
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Cases Under 42 USC §1983)¯ this case was transferred by Order of August 6, 1982 to Magistrate Peter Nlmkoff for "further proceedings".
2. A "DE NOVO DETERMINATION" a. ADOPTION OF THE MAGISTRATE'S
FINDINGS DOES NOT REQUIRE FURTHER EVIDENTIARY PROCEEDINGS
Under the Federal Magistrates Act, 28 U.S.C. S636(b)(l) and Local Magistrate Rule 4(b), this Court, following the Magistrate's Report and Recommendations issued January 8, 1986, is to make a "de novo determination" of the portions of the Magistrate's report to which objection is made. 28 U.S.C. S 636(b)(l). The district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. The judge may also receive further evidence or recommit the matter to the Magistrate with instructions." Id.
The Supreme Court has recognized that the statute, 28 U.S.C. § 636(b)(l), does not require the district court to rehear the testimony on which the magistrate based his findings and recommendations in order to make an independent evaluation of the credibility of the various witnesses whose testimony
5./ Local Magistrate Rule l(f) provides: A Magistrate may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a report containing proposed findings of fact and recommendation for the disposition of petitions filed by prisoners challenging the conditions of their confinement.
-7-

formed the evidentiary record below. United States v. Raddatz. 447 U.S. 667, 674 (1980); Louis v. Blackburn. 630 F.2d 1105, 1108 (5th Cir. 1980).
b. REJECTION OF THE MAGISTRATES FINDINGS REQUIRES FURTHER EVIDENTIARY PROCEEDINGS
Our Circuit has held that, when considering the multitude of factual credibility determinations such as those made by the Magistrate in this case, a "[D]istrict judge should not enter an order inconsistent with the credibility choices made by the magistrate without personally hearing the live testimony of the witnesses whose testimony is determinative." (Emphasis added) Louis v. Blackburn, supra. 630 F.2d at 1109; Id. at 1110 ("In order to adequately determine the credibility of a witness as to such constitutional issues, the fact finder must observe the witness. This may be accomplished either by the district judge accepting the determination of the Magistrate after reading the record, or by rejecting the Magistrate's decision and coming to an independent decision after hearing the testimony and viewing the witnesses.") (Emphasis added); Wofford v. Walnwright 748 F.2d 1505, 1507 (11th Cir. 1984).
Thus, while the Magistrate's findings here were a product of credibility determination from a host of witness-testimorLai evidence and are not shielded by the "clearly erroneous" standard of Rule 52(a) F.R.C.P. due to the "de novo" nature of review under 28 U.S.C. § 636(b)(l), they nonetheless are a product of a detailed and comprehensive factual presentation
-8-

involving 27 live witnesses; various deposition-witnesses; literally reams of documentary evidence; extensive written submissions and oral presentation of counsel.
In short, the findings represent a careful and studious review of the record evidence of this lawsuit and should be afforded attentive review by this Court. See. United States v. Whltmire 595 F.2d 1303, 1305 (5th Cir. 1979) ("[I]ndeed, the fact finding process [through an initial determination by a magistrate 1 may be improved by the referral practice in making a final determination, the district court has the benefit of a carefully developed record, a Magistrate's thoughtful consideration of the issues, and argument of counsel regarding specifics not agreeable to the parties.")
Should this Court set aside the detailed findings of the Magistrate, a new subsequent evidentiary hearing must take place.
B. THE JURY DEMAND Previously on December 2, 1985, at the start of the trial of this case, this Court denied the Defendants' Appeal in which they sought emergency relief from the Magistrate's November 25,1985, Order denying Defendants' Demand for Jury Trial.-
6./ In its December 2, 1985 Order, this Court ruled: The Court has read and considered these submissions of counsel with respect to the ruling made by Magistrate Nimkoff on November 25, 1985. It appears that the ruling is not clearly erroneous. The Magistrate adequately considered the issues and his ruling is therefore AFFIRMED.
-9-

For the third time in this litigation, Defendants again raise the jury issue.
1. THE LEGAL STANDARD REGARDING WAIVER OF RIGHT TO JURY TRIAL
The Magistrate set forth the various competing legal principles, apparently not specifically challenged now by Defendants, relating to the jury issue. (¶¶I6-2O, Findings.) Those principles in sum are: (i) the Seventh Amendment right to a jury trial may be waived by a failure to demand it in timely fashion, Rule 38(b) F.R.C.P., Cox v. City Masland and Sons, Inc. 607 F.2d 138, 142 (5th Cir. 1979); (ii) the demand for a jury trial is to be served within ten days of the "last pleading directed to the issue" Rule 38(b) F.R.C.P.; (iii) if waiver of a jury trial has occurred through submission of the original pleadings, the waiver "cannot be later revived by amending the original pleadings" See, e.g., Walton v. Eaton Corp.. 503 F.2d 66,71 (3rd Cir. 1977) and cases cited at ¶I8, Findings; (iv) while a jury trial may be demanded for any "new issues" within the meaning of Rule 38 raised by the amended pleadings, the "amendment does not revive a right previously waived to demand a jury trial on the issues already framed by the original pleadings." Walton v. Eaton Corp.. supra, 563 F.2d at 71-72 and (v) an amended pleading whi'a concerns the "same general issues" does not raise "new issues within the meaning of Rule 38(b) even if they differ from the earlier pleadings in some particulars." Walton v. Eaton Corp., supra, 503 F.2d at 72 and cases cited at 1120, Findings.
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2. THE MAGISTRATE'S FINDINGS ON THE JURY ISSUE ARE CORRECT
In denying Defendants' request for a Jury Trial, the
Magistrate set forth his analysis in the Findings. Essentially
the Magistrate determined the following: (1) Defendants
waived their right to jury trial by failing to make a timely
request under Rule 38 within ten days of filing their Answer to
Plaintiffs' Amended Class Complaint on October 31, 1983.-
l_l On September 21, 1983, Plaintiffs filed an Amended Complaint. On November 2, 1983, Defendants served their Answer. Neither party filed a jury request. (¶2l, Findings). In the Amended Complaint, Plaintiffs sought declaratory and injunctive relief to enjoin various practices of prison officials relating to allegations that the inmates had been subjected to violence, threats, and sexual abuse by other prisoners. The named Plaintiffs additionally sought damages on behalf of themselves.
Almost two years later on August 26, 1985, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint with a proposed amended pleading which was granted by the Magistrate on September 19, 1985, nunc pro tune August 26, 1985. The Second Amended Complaint virtually mirrored the allegations in Plaintiffs' Amended Class Complaint filed two years earlier alleging that certain practices by Defendant prison officials resulted in Plaintiffs being assaulted, battered, and/or homosexually raped. Additionally, the Second Amended Complaint added seven additional plaintiffs, (1) David Aldred, (2) Steve H. Bronson, Jr., (3) Eddie Cobb, (4) Ron Durranee, (5) Wayne Epprecht, (6) Michael Gordon, and (7) Keith Harris, all present or former inmates at GCI who suffered injuries consistent with the named Plaintiffs and the class. These seven additional named Plaintiffs sought compensatory damages against Defendant R.V. Turner resulting from the Defendants' unconstitutional action.
Additionally, the Second Amended Complaint also added Randall Music, present Superintendent at GCI, as a Defendant for purposes relating solely to injunctive relief since he had replaced R.V. Turner as Superintendent.
On October 7, 1985. Defendants filed a Motion for More Definitive Statement in response to Plaintiffs' Second Amended
(Footnote continued on next page)
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The Magistrate observed "On November 6, 1985, over two years
after filing their Answer to Plaintiffs' Amended Complaint
Class Action, Defendants served their Demand for Jury Trial."
(1121, Findings).¯7
The Magistrate concluded that, pursuant to Rule 38(b)
F.R.C.P., the Defendants had waived their jury right by "not
demanding a jury trial within ten days of the filing of their
Answer on November 2, 1983," (¶22, Findings). The Court, under
(Footnote`]_lcontinued from previous page)
Complaint. Plaintiffs, in response to the Defendants1 Motion, filed a twelve-page pleading providing Defendants with an intensive factual analysis of the various requests for more information raised in their Motion. Plaintiffs' Response was filed on October 23, 1985.
Subsequently, following communication between counsel (see. Defendants Demand for Jury Trial, p. 2 ) , Plaintiffs filed a Motion for Leave to File a Third Amended Complaint along with the amended pleading on November 11, 1985. The Third Amended Complaint provided for the dismissal of all claims related to Plaintiff Keith Harris; substituted a new Plaintiff, Billy Joe Harper; cured several typographical errors in the prior pleading; and added the State of Florida as a Defendant solely for the purpose of an attorney fee award as required by Leggett v. Badger. 759 F.2d 1556 (11th Cir. 1985).
Subsequently, on November 6, 1985, Defendants Turner and Music, pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, served their "demand for trial by jury on all issues so triable."
8./ The Magistrate noted:
Indeed, in their November 6 1985, Jury Trial Demand, Defendants state no r ,ason why they did not timely request a jury trial following their November 2, 1983, Answer, but merely identify issues pertaining to Plaintiffs' Second Amended Complaint filed September 21, 1985. (emphasis in the original) (¶23, Findings.)
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9/ its inherent discretionary authority.- also considered Defendants' jury request under Rule 39(b) F.R.C.P. The Magistrate then considered, under Rule 38(b) F.R.C.P., whether Plaintiffs' Second and Third Amended Complaints introduced any new issues which would give rise to a jury trial. (¶MI26-27, Findings).— Contrary to Defendants' arguments, the Magistrate considered whether "new issues" were raised in the Amended Complaints or whether the amendments "did not change the 'basic issue* in the case or the general area of dispute." (¶26, Findings). (citing Walton v. Eaton Corp.. supra. 563 F.2d at 73). On this matter the Court reasoned that the "only arguable new issues" raised in the Amended Complaints would "relate to the additional Plaintiffs" (Id.), but that all of the evidence introduced concerning the new Plaintiffs would have
9./ Contrary to Defendants' assertions advanced in their Objections, Pgs. 5-6, [herein Pg. , Def. Obj.] consideration of Rule 39(b) discretionary authority and the various factors outlined by our Circuit, Panatt v. Wilson. 707 F.2d 1262, 1267, See. ¶24-25, Findings. was indeed an appropriate inquiry after the Magistrate first concluded that Defendants had waived their right under the 10 day provision of Rule 38(b) F.R.C.P. 10/ Defendants erroneously condemn the Magistrate for failing to analyze the Second and '.nird Amended Complaints to determine if "new issues" were raised which would entitle them to a jury. See. Pg. 5, Def. Obj. ("No attempt to analyze Plaintiffs' Second Amended Complaint was made.")
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been introduced anyhow, "irrespective of the pleading amendment as support for Plaintiffs' injunctive relief." (¶27, Findings)
The core of Plaintiffs' case, as recognized by the Magistrate, remained identical throughout the modifications of the September 21, 1983 Amended Complaint which are reflected in the Second and Third Amended Complaints filed in the Fall of 1985. That factual and legal core raised claims that inmates at GCI were being "assaulted, battered, and/or homosexually raped" due to Defendants' "unwillingness or inability to prevent" such violence. (¶27, n.10, Findings). The same "assaults, battery and/or homosexual rapes" remained the core issues of the Second and Third Amended Complaints.—
The Magistrate, we submit, correctly resolved this issue as
11/ The Magistrate's reliance upon Hostrop v. Board of Junior College District No. 515. 523 F.2d 569, 580-81 (7th Cir. 1975) (All the evidence which might be introduced under amended claims was probative evidence of pre-amended claims and therefore the additional amendment did not introduce a new issue); and Lanza v. Drexel and Co.. 479 F.2d 1277, 1310 (2nd Cir. 1973) (Jury trial waived "as to all issues relating to the general area of dispu-e.") appropriately supports the decision that the Second and xhird Amended Complaints raised no new issue. See also. Pennsylvania ex. rel·. Felling v. Slncauage 439 F.2d 1133 (3rd Cir. 1971) (Amendment to Complaint adding new Plaintiff did not revive previously waived right to jury trial.)
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12/ did this Court pursuant to its December 2, 1985 Order.—
C. THE CONTINUANCE
1. THE LEGAL STANDARD
Matters relating to the conduct of a trial "are peculiarly
within the jurisdiction of the trial court" Edward Leasing
Corp. v. Uhlig and Associates. Inc.. 785 F.2d 877, 881-82 (11th
Cir. 1986) and will not be disturbed "except upon a showing of
abuse of discretion, and then only upon a showing that such
abuse of discretion resulted in substantial harm to the parties
seeking relief." Id.. citing Britt v. Corporation Peruana de
Vapores, 506 F.2d 927 (5th Cir. 1975); Huff v. N.D. Cass Co. of
Alabama. 468 F.2d 172 (5th Cir. 1972); Bell v. Shift & Co.. 283
F.2d 407 (5th Cir. 1960).
12/ We observe that Defendants· challenge on this issue underlies one of their essential defenses in this case. Simply, they have viewed, and continue to view, Plaintiffs' claims as discrete, separate and isolated tort actions brought by the several Plaintiffs. See, (¶2I6, Findings) (Magistrate observes that Defendants urged throughout the trial "[t]hat Plaintiffs' claims for damages are merely ten separate, isolated incidents."). See also. ¶5, Pg. 13 of Def. Pre-Trial Stipulation. This notion is additionally expressed in their treatment of the jury issue as they perceive the Second and Third Amended Complaints as a mechanism to add new parties and new issues into the case.
For the r'asons expressed in the Magistrate's Findings as well as throughout this Memorandum, we submit that the Magistrate was absolutely correct in viewing Plaintiffs' challenge as a case not involving ten discrete and isolated incidents but rather, as a single action flowing directly from Defendants' failure to properly manage and administer the correctional facility.
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2. THE FACTUAL CONTEXT Defendants refer to various discovery activities that occurred at a period in time in close proximity to the commencement of Trial on December 2, 1986, as grounds for the Magistrate as well as this Court's error— in refusing to continue the Trial, (Pg. 8-9, Def. Obj.) Defendants' position is that discovery was still ongoing and therefore the commencement of trial was premature. Several significant events, however, were omitted from Defendants' recitation. We submit these their events are dispositive of the continuance and underlie the correctness of this Court's previous Order of December, 1985 rejecting Defendants' Emergency Continuance Request. First, and fundamentally, Defendants, in derogation of the controlling legal standard, cite no "substantial harm," Edmund Leasing Corp.. supra, 785 F.2d at 881 (requiring showing of "substantial harm" to the party seeking reversal of denial of continuance) which would demonstrate an abuse of discretion in the denial of the continuance. Second. Defendants fail to reveal that indeed they had already been granted a first
continuance in Fall, 1985 in order to prepare for the upcoming trial.1—4/ Third, contrary to the suggestion
13/ On December 2, 1985, prior to the commencement of trial this Court c¯¿nied Defendants' Emergency Request for a Trial Continuance in the same Order denying their jury request. See, supra. Pg. 9, n.6. lit/ On September 27, 1985, Defendants filed their first Continuance seeking to delay for a 90 day period the scheduled November 4, 1985, trial. By Order of October 15, 1985, the Magistrate granted Defendants' Continuance Request and reset the
(Footnote continued to next page) -16-

of the Defendants, by virtue of the Magistrate's Order of
October 15, 1985, which granted their first Continuance
Request, Defendants had been placed on notice of a Special
Setting for Trial commencing on December 2, 1985.—' Fourth,
while Defendants did depose Plaintiffs' expert, Dr. Swanson,
immediately prior to trial (November 29, 1985), counsel had
been aware of his involvement in the lawsuit and Dr. Swanson
had been made available for deposition discovery during the
entire Fall.— It was the decision of Defendants' counsel
to delay the taking or Dr. Swanson•s deposition until late
November. Fifth. Defendants suggest that they "did not
(Footnote `\A_I continued from previous page)
trial for December 2, 1985. Thus, Defendants received 65 of the 90 day continuance that they requested on September 27, 1985.
15/ In their Objections, Pg. 8, Defendants appear to suggest that the trial date was "sprung" on them with only one week notice. Id.., ("On November 25, 1985, the Third Amended Complaint was approved and Trial set to begin one week later.")
16/ Defendants also took Dr. Caddy's deposition, Plaintiffs' second expert witness, on December 5, 1986, during the trial. However, counsel for Plaintiffs had informed Defendants that Dr. Caddy's preparation could only be completed after he had extensively interviewed and performed psychological testing upon all of the Plaintiff-inmates. This scheduling was raised and addressed in open Court weeks prior to the Trial. See. Pgs. 23-26 (Transcript of Oct. 8, 1985 Proceedings); Pgs. 39-51 (Transcript of Nov. 25, 1985 Proceedings).
The schedule was necessary solely due to the fact that the v .cious Plaintiffs were deposed throughout the entire Department of Correction prison system within the State of Florida. At any rate, Defendants did have the opportunity to depose Dr. Caddy. Due to Defendants' failure to comply with the Court's Pre-Trial Stipulation Schedule, See, infra. Pg. 19, n.18 Plaintiff did not even have a reciprocal opportunity to have knowledge of -– let alone depose -– Defendants' expert, Inspector Brierton. Plaintiffs' counsel was afforded an opportunity to interview Mr. Brierton 10 minutes prior to his testimony during the second week of trial. (Dec. 12, 1985, Pg. 240).

have a valid opportunity to prepare their case11 (Pg. 9, Def. Obj.). referring to the taking of depositions of the Plaintiffs during the period of November 13-15, 1985, that they were unable to take the deposition of witnesses identified in those depositions; and that they were involved in burdensome discovery demands in providing various documents. (Id.) The Defendants, though, omit calling to this Court's attention that they were aware of the additional named Plaintiffs as early as August 29, 1985--the time of the filing of Plaintiffs' Second Amended Complaint, See, Order of October 15, 1985 (Granting Defendants' First Continuance) ("Defendants have had notice of these additional allegations [additional plaintiffs] since at least September 1st, and have known since September 25th that they must be addressed in this case. Nevertheless I am persuaded that some adjournment .is fairly required.") (Emphasis in original) and additionally, that Plaintiffs' document request had been filed in a prompt manner on September 17, 1985 See, Order of October 15, 1985.—/ Sixth. Defendants' assertion that Plaintiffs also were not ready for trial is just plain wrong. Plaintiffs did not present full blown evidence as to some of the injunctive issues in the case simply due to the fact that many recent physical improvements
17/ With all deference, the real reason that Defendants expedited Fall discovery activities was due simply to the fact that both of Defendants' trial counsel entered this case in its final stages. Mr. Meginnis filed his Notice of Appearance on August 30, 1985; Mr. Davis on September 20, 1985. While by its very nature such late entry caused counsel to have to condense their trial preparation, it is hardly a reason to determine that the Magistrate and later this Court "abused its discretion" in failing to grant a Second Continuance.
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had been made at GCI thereby mooting those c l a i m s .18— /
Plaintiffs' position, as reflected in the record, is not at all
as characterized by Defendants--that we "were unprepared to
present evidence on the injunction relief claims." (Pg. 9, Def.
Obj.) Our position to the Court envisioned a bifurcated
process, traditionally adhered to in institutional litigation
of this nature:
MR. LIPMAN: Our present position, outside of the exchange of the expert witness testimony, Your Honor, is that we would request first the court to determine the nature and extent of the institutional violations that have existed, and then -– that currently exist, and then given that, that we have further remedial hearings to attempt to address and tailor make relief and remedy to illuminate those violations.
(Dec. 3, 1985, Pg. 247)
Consistent with this position, the Court's injunctive relief
(¶¶254-26O, Findings) was limited to the formation of two
committees whose assignment is to address future remedial
concerns consistent with the constitutional violations found by
the Magistrate. (11258-259, Findings) Moreover, the scope of
the committees' charter is expressly limited to the matters
18/ Indeed, it was Plaintiffs, not Defendants, who were prejudiced by Defendants' expedited pre-trial activities: As an example, notwithstanding the Court's clear admonition that "Counsel are cautioned that their complete Pre-Trial Stipulation is due on or before Monday, November 25, 1985," (Order of October 15, 1985) Defendants did not file their Pre-Trial Stipulation until the day Trial began, December 2, 1986. Thus, Plaintiffs' counsel was not afforded a similar opportunity as Defendants' counsel to review opposition's Pre-Trial Stipulation prior to trial (Plaintiffs' Pre-Trial Stipulation was filed on November 25, 1985).
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concerning the rapes/assaults of the Plaintiffs and class members. (Ibid.)
D. RECUSAL 1. DEFENDANTS' POSITION Without referring to any legal authority other than merely citing Canon 3C of the Code of Judicial Conduct of the ABA and 28 U.S.C. §455, Defendants contend that the Magistrate's failure to recuse himself during the course of the trial was in "contravention of the mandate" of Canon 3C and thus, the Magistrate's Report "must be rejected". (Pg. 10, Def. Obj.) Defendants' recusal request stems from events that occurred at the initial stages of this lawsuit some 4 years ago in 1982 when Magistrate Nimkoff took testimony in the form of a hearing (December 4, 1985, Pg. 420) of Plaintiff, ANTHONY LA MARCA, in the presence of counsel for the Defendant, Belitskey, at GCI (Id.. at Pg. 423, 426-27, 429). Following the hearing, the Magistrate requested that counsel for Defendant, Mr. Belitskey, "inquire, investigate whether or not any of the things reported in his presence to [Magistrate Nimkoff], by Mr. LAMARCA, ostensibly for the benefit of persons other than LAMARCA, were true, and if true, whether they warranted the attention of the Attorney General of the State of Florida." (December 4, 1985, Pg. 422). Counsel for Defendant gave assurance to the Magistrate that this would be done. However, no investigation
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ever took place. (Dec. 3, 1985, Pg. 2 6 0 ) — /
Based upon the foregoing, the Defendants during the trial
sought and were denied recusal during the trial. (December 4,
1985, Pg. 606). Defendants argue now that recusal was
warranted because "as a judicial officer" (Pg. 10, Def. Obj.),
the Magistrate was "required to disqualify himself in a
proceeding where he has personal knowledge of evidentiary facts
concerning the proceeding and where he is likely to be a
material witness in the proceeding". Id., ("[A¯lsked to recuse
for having inserted himself and his claimed knowledge into the
lawsuit.")—¡
19/ From these events the Magistrate drew the following conclusion:
Not only did it become apparent that no investigation occurred when no response was forthcoming from Defendants, but Defendant Turner testified that he was totally unaware that these assurances were made to the Court and that he was completely unaware even of the circumstances of this lawsuit until the recent pre-trial activities (Turner).
Simply, the point is that this lawsuit, unquestionably raising matters of grave concern involving allegations of the most degrading violations to Plaintiffs, somehow got lost between the rather large "cracks" of Defendant Turner's management system. This account serves merely to underscore Plaintiffs' position that GCI, under the Turner administration, was an institution not under the control of that Defendant. (¶69-7O, Findings)
20/ Inexplicably, Defendants appear to contend that the Magistrate should have appeared as a witness to further explain these events because "[T]he sole source of information on this subject was the Magistrate's own statements" (Pg. 10, Def. Obj.) and "there was no record of any proceedings" and thus, "nothing other than the Magistrate's own relation of the events [which] set the context for what allegedly transpired." Id.
(Footnote continued to next page)
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2. RECUSAL WAS PROPERLY DENIED
Two statutes govern recusal of members of the federal
judiciary, including federal Magistrates: 28 U.S.C. §144, and
28 U.S.C. §455.— Only the latter comes into consideration
in this case since no affidavit was filed by any of the
Defendants as contemplated by §144.
Under either statute, the alleged bias must be "personal",
as distinguished from judicial, in nature. Phillips v. Joint
(Footnote 2SL·/ continued from previous page)
We know of no authority, nor do Defendants refer to any, which would demand recusal due to the necessity of calling a Judge to testify about evidence elicited in a prior hearing. At the risk of oversimplification, these situations are typically handled by counsel requesting a transcription of an earlier proceeding. Alternatively, Defendants were free to call upon Mr. LaMarca or, for that matter, Messrs. Belitskey or Arline (all present during the proceedings) to offer their recollection of those events.
21/ Section 144 provides in part:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
Section 455 provides:
a. Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
b. He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. (Emphasis added)
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Legislative Committee, 637 F.2d 1014, 1020, (5th Cir. 1981). The point of the distinction is that the bias "must stem from an extraiudicial· source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case". Phillips, supra, citing United States v. Clark. 605 F.2d 939, 942. C5th Cir. 1979); See also. United States v. Meinster. 488 F. Supp. 1342, 1345-46 (S.D. Fla. 1980) (King, J.) (Ex parte conference between Court and Government Strike Force attorneys did not constitute "personal, extrajudicial bias" under recusal standard of 28 U.S.C. §455) aff'd sub nom. United States v. Phillips. 664 F.2d 971 (5th Cir. 1981) (Unit B ) , cert, denied. 457 U.S. 1136 (1982). Thus, a motion for disqualification ordinarily may neither be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench. United States v. Grinnel Corp., 384 U.S. 563, 583, (1966). Since the events surrounding Defendants' recusal request stem from the Magistrate's activities in this case--the hearing he conducted in 1982 in his judicial capacity in contrast to any extraiudicial· source. United States v. Meester. 762 F.2d 867, 884 (11th Cir. 1985) (The alleged bias "must stem from an extrajudicial source and result in ar opinion on the merits on some basis other than what the judge learned from his participation in the case"), recusal in this case was not warranted, nor have Defendants made even a colorable claim
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of its appropriateness.2—2/ Finally, Defendants' reference to Canon 3C of the ABA Code
of Judicial Conduct adds no additional authority to their argument. Canon 3C was adopted in 1972 and has been interpreted to apply the identical "extrajudicial" test as do 28 U.S.C. §144 and §455. United States v. Coven. 662 F.2d 162, 168 (2nd Cir. 1981). See also, H.R. Rep. No. 93-1453, 93 Cong. 2d Sess. (1974) reprinted in [19741 U.S. Code Cong. & Ad. News 6351 (Amendments to §455 intended to make the statutory standards for judicial behavior consistent with those set forth in Canon 3C of the ABA Code of Judicial Conduct.)
III. DEFENDANTS1 OBJECTIONS TO THE FACTUAL STATEMENTS A. Introduction
In this Section, we respond to Defendants' various Objections to the Magistrate's Findings. For the convenience of the Court, and so that these issues can be reviewed in a single document, we summarize both the Defendants' Objections as well as the Magistrate's Findings. We then offer our analysis of how the record evidence is supportive of the various subsidiary facts contained in the Magistrate's decision.
22/ Perhaps even more succinctly, when questior^d by counsel for Defendants about his prior knowledge of the events in question, the Magistrate indicated:
Certainly. I was the judge presiding over it then. I am now. (Dec. 4, 1985, Pg. 432)
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While Rule 4(b) of the Local Magistrate Rule requires the objecting litigant to identify specific findings of a Magistrate recommendations, it is our position that, in weighing the overall soundness of the Magistrate's request, each of the particular findings should not be considered in total isolation from the record as a whole. Such piecemeal review should be rejected for it is essential that each part of the record be viewed in its total context and that the Magistrate's Findings not be approached "as if they were [many! completely separate and unrelated lawsuits." Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 689-99 (1962). What the Supreme Court said there bears repeating here:
In cases such as this, plaintiffs should be given full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each.-.[T]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. United States v. Patten. 226 U.S. 525, 544...and in a case like the one before us, the duty of the [court] was to look at the whole picture and not merely at the individual figures in it. (citations omitted). (Id. at 644)
Accord. Keyes v. School Dist. No. 1. 413 U.S. 189 at 200, 203, 207-08 (1973).
We only seek, in the context of these standards, that the "whole picture" presented by the enti¯ e factual record be considered in assessing the correctness of the Magistrate's Findings of Fact in this case.
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B. ANALYSIS OF DEFENDANTS' OBJECTIONS 23/

1. ¶3l

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

R.V. Turner held the position of Superintendent of GCI from mid-1976 through his retirement on August 31, 1984.

R.V. Turner was Superintendent only until July 31, 1984.

ANALYSIS 31. Defendants' objection is correct: Turner retired July 31, 1984.

2. ¶32

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

As of July 29-31, 875 inmates were incarcerated at GCI. Approximately 60% of these were Black; the remainder white or Hispanic.

Inmate population statistics July, 1985 are irrelevant because Turner had retired. Statement that GCI was 60% Black is inaccurate. Inmate
population range of 760-893 is more accurate.

ANALYSIS 32. First, the racial breakdown of the inmate population at GCI in 1985 is relevant to the Magistrate's concern with injunctive relief.
Second, Defendants' contention that non-Latin whites at GCI are seriously outnumbered by blacks is not supported by the evidence. To assume that the 10 "other" inmates noted on the September 1983 prison census, (P.Ex. 7, Pg. 3) refers to Hispanics is just incorrect. The 10 "other" inmates clearly

23/ This Analysis begins with II 31 of the Magistrate's Report, the first of the Findings which give rise to objections by Defendants.
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refers to those inmates categorized as "transient," not inmates

that do not fit into the "W/M" or "B/M" categories.

Plaintiffs do not contest the Defendant's recapitulation of

the population statistics from Plaintiffs' Exhibit 31.

3. 1133

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Superintendent Music estimated Hispanic population at 7% to 10%. Earlier Hispanic populations were higher creating potentially serious management problems. During the Turner administration 65¾-7O% of those incarcerated were close custody.

Current Hispanic population was not 7% to 10%. Record does not support conclusion that it was ever higher than 7%. Any increase in Hispanic population was only temporary. Close custody does not necessarily imply violent but refers to potential escape risks requiring armed guards outside defense perimeters.

ANALYSIS 33. During his testimony, Defendant TURNER did not contradict the inference that the Magistrate drew from TURNER'S own written report that there was a "large contingent" of Latins. Further, the Defendants' contention that "the increase in Latin population on that date was apparently temporary," is belied by the testimony of Defendant MUSIC:
Q. Does GCI, based on your experience, have the largest proportion of Hispanics or Cuban inmates of any of the other institutions that you're familiar with? A. With any of them that I'm familiar with, yes.
(Music, Dec. 11, Pg. 133)

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The characterization of "close custody" offered by Defendants is derived from the testimony upon which the characterization is based.2—4/ Additionally, any inference that the Magistrate might draw as to the propensity of the GCI inmates for violence need not rest solely on the "close custody" classification, but also upon the testimony of the Plaintiffs and the inmate files of such identified assailants as Willie Dock, Sr. (P.Ex. 16) (assault with intent to commit grand larceny); Andrew Jackson (P.Ex. 21) (armed robbery); Michael Lane (P.Ex. 25) (robbery with a firearm); Larry Pryor (P.Ex. 26) (first degree murder); James Roper (P.Ex. 28) (robbery), and from the testimony of the inmate witnesses offered by the Defendants. See, e.g., Ronald Johnson was convicted of robbery (Johnson, Dec. 12, Pg. 226) and Raymond Taylor was convicted of murder (Taylor, Dec. 11, Pg. 196).

MAGISTRATE'S FINDINGS 34. No objection.
MAGISTRATE'S FINDINGS 35. No objection.

4. ¶34 DEFENDANTS' OBJECTIONS
No objection. 5. ¶35
DEFENDANTS' OBJECTIONS No objection.

24/ Defendant TURNER ,estified:
Close custody generally means that if an inmate who is assigned into the institution known as close custody, if he exists that institution, the secure perimeter for any reason whatsoever, he must be under armed guard.
(Turner, Pg. 562)

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6. ¶36

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The individual named Plaintiffs' Admits wine production, viewing

damage claims can be analyzed

of sexually explicit films and

only within the context of the

improper conduct by correctional

general operational policies,

officers but far less frequently

practices, conditions and events than implied by Magistrate's

existing at the general time

findings,

period in which their claims

arise. Disparate factors-rang-

ing from wholesale manufacture of

prison wine and regular screenings

of sexually explicit videotapes

to a heterosexually starved

audience of inmates, to the

maintenance of an ill-assorted

guard corps whose members the

inmates perceived as regularly

trafficking in contraband, extor-

tion, and neglect--converge into

a tapestry that forms the backdrop

for Plaintiffs' claims.

ANALYSIS 36. Defendants offer no citation to the record to rebut what they characterize as "sweeping statements" concerning incidents of rampant lawlessness inside the prison - incidents that are described in detail elsewhere in the record. As to the "wholesale manufacture of prison wine," Lt. Leo Peters, the Institutional Investigator, noted the discovery by two correctional sergeants of 20 gallons of "buck" fermenting beneath a trailer. (Peters, Dec. 12, Pg. 366, 472) See, also, P.Ex 4(A) (Palm Beach County Grand Jury Presentment, Pg. 6) ("Alcohol use and its manufacture by the inmates' ingenuity also appears prevalent.") (Emphasis added). The "regular screenings of sexually explicit videotapes" is discussed at 111(101- 102 of the Magistrate's Findings. The "maintenance of

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an ill- assorted guard corp whose members the inmates perceived as trafficking in contraband, extortion and neglect" is discussed at 111146-56, Ibid., with extensive citations to the record.
Defendants offer no citation or other authority for their proposition that the improprieties occurred "far less frequently" then found by the Magistrate.

7. ¶37

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

37. No objection.

No objection.

8. ¾38 - ¶39

MAGISTRATE'S FINDINGS

DEFENDANTS OBJECTIONS

Conditions at GCI were known to Turner. Turner admitted:
"On an almost daily basis I feel that our security staff is simply being tolerated by the inmate population rather than potential being in control of the operation of the institution." (Emphasis added).

Turner did not know that all conditions claimed by Plaintiffs existed Turner's quote referred to a manpower shortage for which he was not responsible that inmates merely tolerated staff referred to potential rather than actual problem.

Turner acknowledged security problems. Staff vacancies were "dangerous to staff and inmate population". Cited example of two officers to monitor 220 inmates. Turner was "apprehensive about our ability to control this population under the circumstances." The Court found that American Correctional Association (ACA) accreditation of GCI was of virtually no significance because Florida's prison supervisors received ACA accreditation while

Dr. Swanson's testimony, which Magistrate uses to support conclusion that ACA accreditation was of no significance, is not credible. A review of the reported decisions in Graham v. Vann and Constello v. Wainwright reveals Swanson's testimony to be false. Moreover, Swanson testified that he used standards identical to ACA. However, ACA reports should be given greater weight than Swanson

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U.S. District Court consistently found practices unconstitutional and Florida State penitentiary was accredited at the same time those Courts found conditions there unconstitutional.

because they are independent and the inspections were conducted during the relevant time period, not after,

ANALYSIS 38-39. The findings of both Paragraphs 38 and 39 appear to be addressed jointly by Defendants, and thus Plaintiffs will respond likewise to the objection.
The Magistrate found in these paragraphs only the following:
a. Defendant TURNER was aware of the dangerous conditions at GCI as early as 1979, and wrote to Secretary Wainwright about them on March 15, 1979 and July 16, 1981. His letters are self-explanatory.2—5/
b. That the institutional accreditation of GCI as insignificant to this litigation.—'

25/ As to the suggestion that the problem was only a "potential" one, rather than an actuality, the testimony of Defendant TURNER contradicts the characterization of his counsel:
Well, at this time, my contention, particularly, was in connection with the serious lack of security staff, that we had control of an institution, based primarily on supervision and surveillance, and we simply did not have at that time enough officers to properly supervise and survey the institution, and I felt that there was a substantial lack of control.
(Turner, Dec. 13, Pg. 735)
26/ Not only are there substantive reasons for discounting the ACA report, but evidentiary ones as well: the contents of the report were never properly before the Court. The Report was admitted into evidence not for its truthfulness, but merely to show that an ACA Committee had conducted an investigation. (Dec. 13, Pg. 512-514)
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As to the question of Defendant TURNER'S notice, the letters from which the Magistrate drew his inference speak for themselves. There is neither testimony cited by Defendants to support the gloss that they would give the letters, nor was any such testimony adduced by Defendant TURNER.
Defendants simply misstate when they argue that "[t]he Magistrate suggests that because of the shortage of staff during 1979-1981, the accreditation by the American Correctional Association was invalid.11 No such suggestion was made.
Defendants further mischaracterize the testimony of Plaintiffs' expert, Dr. Richard Swanson, who testified as to the weight he would give to an ACA report based on his knowledge of the accreditation process. He conducted concurrent investigations of Florida State Prison with the ACA and found that the Florida prison system was accredited in spite of the recent judicial findings of inadequacy concern the Reception and Medical Center at Lake Butler. (Swanson, Dec. 4, Pg. 410-412).
Even more disingenuous is the Defendants' suggestion that "there are still a number of prisons in Florida which are not accredited." (Pg. 15, Def. Obj.)What the Defendants omit is the fact that, out of the five institutions that are not accredited, four are still under construction and the fifth, Union Correctional Institution, had been accredited until the Department of Corrections decided, for budgetary reasons, not to spend the money necessary to spend to bring the main housing
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unit (which is now closed pursuant to court order) into line with fire-safety standards. (Malally, Dec. 13, Pgs. 507-08)

MAGISTRATE'S FINDINGS
A Palm Beach County Grand Jury issued a presentment in 1980. The impetus for the presentment related to shortages of certain food products. The presentment also raised serious issues of inmate security. Testimony revealed "lax security precautions" and a free flow of contraband. The presentment also indicated a breakdown of proper prison management.

¶4O
DEFENDANTS' OBJECTIONS
The Grand Jury report was admitted over objection. It is hearsay and irrelevant. The Magistrate's Report and Recommendation give the Grand Jury report greater weight than he earlier indicated. The Grand Jury Report does not indicate a "free flow" of contraband but only indicates drugs were available.

ANALYSIS 40. Defendants raise issues of hearsay, relevance and weight concerning the January 30, 1980 presentment of the Palm Beach County Grand Jury. Addressing the issues seriatim:
HEARSAY: The grand jury report is not hearsay, but rather a public document under Federal Rule of Evidence, Rule 803(8)(c). (Public Records and Reports "made pursuant to authority granted by law.") See. Wilson v. Attawav. 757 F.2d 1227, 1244-45 (11th Cir. 1985) ("The discretion of the trial court concerning admissibility of evidence applies to determination of admissibility under Rule 8O3(8)(c) [citations omitted]").
RELEVANCY: The Magistrate resolved the relevancy issue by focusing on how the issues covered by the grand jury report telescoped into the issues in this action, and how the grand jury

-33-

report put the Defendants on notice of serious management (Dec. 11, Pg. 16-21).
WEIGHT: The Defendants have taken the words of the Magistrate out of context. They improperly suggest that "it is noteworthy that the Magistrate stated, ...it carries very little weight.1" What the Magistrate actually stated was "...what I may find in this litigation is that it carries very little weight," See, Ibid.. Pg. 21, (emphasis added).

10. ¶4l

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

41. No objection.

No objection

11. 142

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The Inspector General's Report observed and corroborated similar issues concerning a breakdown of security as those identified in the Palm Beach County Grand Jury Presentment.

The Inspector General's Report did not find a "breakdown in security" but did note a shortage of manpower, which TURNER could not control at the time. Magistrate overlooks the report's
findings that all appropriate recommendations made by the Grand Jury in its 1980 Report had been put into effect by TURNER.

ANALYSIS 42. The portion of the executive summary quoted by the Magistrate speaks for itself as to the similarity to the issues addressed by the Inspector General's office and those addressed by the findings of the grand jury:

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INSPECTOR GENERAL REPORT

GRAND JURY REPORT

Supervision in all three general The Grand Jury heard testimony

areas of the compound must be concerning laxity of personnel

described as serious, due to the in the following security regu-

lack of security personnel.

lations at the institution. The

Vacancies continue to be a

Grand Jury finds that thorough

serious problem. The dormitory searches of personnel, inmates,

situation is critical as there and visitors must be routinely

have been occasions when one

conducted without exception.

dormitory officer is responsible While the Grand Jury did not

for supervising more than one personally see evidence of it,

dorm at the same time.

testimony of inmates and some

correctional personnel indicate

(P.Ex. 4, Tab B, Page 4 of

marijuana and other drugs are

"Executive Summary")

available to inmates due in a

large part from lax security

precautions. Alcohol use and

its manufacture by the inmates;

ingenuity also appears preva-

lent.

The Grand Jury having heard many allegations and accusations of drugs, alcohol, and other contraband, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI, find that cash money is the common element in many of these problems and recommends as follows:

(1) That all inmates be prohibited from possessing any cash money.

(2) That the inmate bank account be upgraded to a type of checking account.

(3) That inmate checks be honored at the canteen for the exact amount of purchase only and that no other method of transferring funds be allowed.
(P.Ex. 4, Flap A, Pg. 6)

Defendants assert that the Inspector General's review team had found that "all appropriate recommendations made by the

-35-

Grand Jury in its 1980 report had been put into effect by TURNER." (Pg. 16, Def. Obj.) This is not correct. None of the three recommendations for taking cash out of circulation within GCI were followed, although the review team said it shared TURNER'S view that those recommendations were "inappropriate."
Further, what the Defendants characterize as a "massive effort at self-review and improvement during the preceding months" (Pg. 17, Def. Obj.) was found by the Inspector General's office was to be due, actually, to "the massive effort to obtain accredidation (sic) by the Glades Correctional Institution during the past year, [during which! performance standards have been used to measure almost every aspect of the institution's operation." (P.Ex. 4 (B), Pg. 24).
And finally, there is conspicuously no testimony or other evidence cited by Defendants for their assertion that Defendant "TURNER did all he could to make the budgetary needs known to his superiors and to the Legislature and who lobbied tirelessly (and, ultimately with some success) for the increased funding." (Pg. 17, Def. Obj.)

12. ¶43

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

13. ¶44

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Security problems were exacer- The Report did not find low bated by low morale of GCI staff, morale. Staffing problems do not

-36-

Employees did not feel that there were enough people to perform duties properly and supervisors did not feel they were given adequate instructions or guidelines.

equate to low morale and were substantially alleviated in 1982.

ANALYSIS 44. The Magistrate appropriately drew an inference of low staff morale from the negative answers given on the employee questionnaire. (P.Ex. 4, ¶ 29.1, Pg. 33).
Plaintiffs agree that staff vacancies and turnovers ceased being such an acute problem in 1982. The relevancy of this observation to the instant case, however, is questionable since six of the 10 Plaintiffs suffered their rapes/assaults in 1983 or 1984.—!

27/ (1) David Aldred was raped July, 1984, (¶¶ 120-122, Findings), when 219 of the 235 staff vacancies were filled, (Ibid.. ¶I25);
(2) Ronald Durrance was raped March, 1984, (Ibid., ¶¶ 130-133), when 230 of the 235 authorized positions were filled, (Ibid.. ¶I3I);
(3) Steve Bronson was raped with a baseball bat in June 1984, (Ibid.. ¶I45), when 241 of the 270 positions were filled (Ibid.. ¶I48);
(4) Martin Saunders was raped in or about March, 1983, (Ibid.. ¶I53), when 232 of 265 positions were filled (P.Ex. 31) (Superintendent's Monthly Reports from January 1980 through November 1984), and checked back into protective confinement November 10, 1983 when 220 of the 233 positions were filled, (¶ Ibid.. 159);
(5) Billy Joe Harper was raped in January, 1982, (Ibid. ¶I62), when 239 of 270 positions were filled (P.Ex. 31);
(Footnote continued to next page)

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14. ¶45

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

In 1983, the Inspector General investigated GCI. The Inspector General reported "disregard for established procedures" and "a need for a great deal of improvement" at GCI. Specific problems with security and inmate property were noted.

The Inspector General did not find laxity in security. The Magistrate did not note positive findings of the Inspector General's Report,

ANALYSIS 45. Defendants suggestions that the 1983 Inspector General's review teams finding of laxity did not refer to to security issues is wrong. Of 22 security questions on Pages 8 and 9 of the report (P.Ex. 6 ) , seven were answered "No," including the following:

(Footnote 27./ continued from previous page)
(6) Edwin Johnson was attacked in protective confinement, (Ibid., ¶ 171(a)), sometime after his arrival at GCI in February, 1983, (Ibid.. ¶I69);
(7) Wayne Epprecht was attacked and robbed in February, 1981, (Ibid. , 11173), when 222 out of 266 positions were filled, (Ibid.. ¶I75), and Defendant TURNER was holding open 35 positions, (Ibid.);
(8) Eddie Cobb was stabbed January 27, 1984, (Ibid.. ¶I78), when 218 out of 235 positions were filled (P.Ex. 31);
(9) Michael Gordon was assaulted and robbed thrice during his time at GCI, which began in late 1983 or ear¯·y 1984, (Ibid., ¶'s 181-183); and
(10) Anthony LaMarca escaped in April, 1981 because of inmate harrassment, (Ibid. . 1Í185), when 218 of 266 positions were filled, and checked into protective confinement in July, 1981, (Ibid.. ¶I87), when 215 of 266 positions were filled (P.Ex. 31), with the 35 positions presumably still being held vacant by Defendant TURNER.
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1. Are perimeter posts sufficient to provide adequate security?
***** 3. Is inmate movement from one location to another properly controlled and supervised by staff?
Additionally, it is significant that among the criticisms
that Defendants would classify as being of "housekeeping," one
was that "Homemade lockers are abundant." (P.Ex.6, Pg. 22).
The abundance of these "homemade lockers" obstructed the view
of the guards who monitor the dormitories at night from inside
their wicket when some of the various rapes/assaults occurred.
See, e.g., ¶92, Findings.

15. ¶46 - ¶47

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

¶¶46-47. On April 15, 1984, a fight broke out at a dormitory, GCI off-duty personnel, including Lt. William Barrett, were called. Barrett was obviously intoxicated Nevertheless, Barrett was given a shotgun, ammunition and was permitted to approach a dormitory. Turner did not notify Prison Inspector. The Inspector General did conduct an investigation and concluded that Lt. Barrett and Lt. Peters had committed prison rules infractions.

¶46-47 The Barrett incident has no relevance to the issues in the present case. Turner was not present and none of the Plaintiffs were involved. The Barrett incident was the only incident of excessive force in a five year period.
The Inspector General's office was contacted by TURNER three days after the incident. The only infraction committed by Peters was that he returned to the compound intoxicated. There was no adverse finding regarding TURNER in the Barrett report.

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ANALYSIS 46-47. The Barrett incident is relevant not as a showing of improper use of force, but rather as a clear illustration of Turner's management by indifference; an indifference marked by inhumane callousness.
Lt. Peters, to whom Defendant TURNER assigned the investigation, was himself found guilty of having violated the probihition against "report[ingl for duty or exercis[ing] supervision or control over any person while under the influence of a narcotic, barbiturate, hallucinogenic drug, central nervous system stimulant or an intoxicant." (P.Ex. 9, Pg. 10-11).

16. ¶48

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Accordingly, to Dr. Swanson, the transcripts of a tape recorded hearing between TURNER and inmate Allen revealed that TURNER was not surprised that alcohol and drugs were available to inmates on a widespread basis.

A person's emotions cannot be determined from a transcript. TURNER was an investigator and did not express all his opinions; TURNER was intent on discovering all the facts and advised Allen of his legal rights.

ANALYSIS 48. Defendants, significantly, do not take issue with Dr. Swanson's observation that Defendant TURNER should have taken immediate action to suspend Lt. Barrett. R .Cher, Defendants concentrated on what they characterize as "[t]he Magistrate's finding that TURNER, in interviewing an inmate (Allen) in the course of the Barrett investigation, failed to register appropriate outrage on the Transcript in learning that some of

-40-

the inmates had been drinking buck..." Dr. Swanson's observation was not that Defendant TURNER failed to register outrage, but that Turner appeared to be accepting as routine the widespread use of alcoholic beverages within the institution. (1148, n.12) ("[N]ot a surprise at all to Superintendent TURNER that alcohol and drugs are available on a widespread basis in the institution.")

17. ¶49

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No. objection.

No objection.

18. ¶5O

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Dr. Swanson opined that TURNER unduly delayed suspending Barrett under the circumstances.

On cross examination Swanson admitted that all TURNER should have done was remove Barrett from the compound that night, whichTURNER did.

ANALYSIS 50. To characterize Dr. Swanson's testimony on cross examination as saying that all that should have been done immediately to Lt. Barrett was that he should have been sent home that evening, (Swanson, Dec. 3, Pg. 330) is to urge that the court to ignore the other evidence in the record that Lt. Barrett remained on duty and in a posi* ion of authority for some time subsequent to the shotgun-incident.
Indeed, Lt. Leo Peters identified Lt. Barrett's signature as approving on April 23--more than a full week after the incident--a written report by the prison's arsenal officer

-41-

about the very incident. (Peters, Dec. 12, Pg. 499) Peters acknowledged that the logical inference would be that Lt. Barrett was still on duty and operating within the institution. Ibid.

19. 1151

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Dixon investigation corroborates allegations of wholesale staff corruption with regard to extortion of inmates and free flow of contraband.

Dixon investigation is irrelevant. Dixon was investigated several times at TURNER'S instigation. TURNER'S investigation failed to substantiate
charges against Dixon.

ANALYSIS 51- Significantly, while Defendants characterize the misconduct of Officer Clarence Dixon as irrelevant to this action, they do not deny the particulars of either the findings contained in this paragraph or the succeeding one. Instead, they note that Defendant TURNER had ordered that investigations be made into Officer Dixon's activities -– investigations that, in all likelihood, would have been unnecessary had TURNER either done the proper background investigation to begin with or had acted in a timely manner upon the information provided him March 6, 1984, (e.g., Officer Dixon had been terminated from a teaching position for what can only be described as extortion activities.) See. (P ¿×. 10, Tab. C, Memo of March 6, 1984); (Swanson, Dec. 3, Pgs. 222-224).

-42-

20. ¶52

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

21. ¶53

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

While his testimony offers less conclusive credibility than the external investigative reports of Barrett and Dixon, the assertions of Pryor nonetheless reveal additional evidence of wholesale corruption.

Findings that the Barrett and Dixon reports revealed "wholesale staff corruption" is totally lacking in credibility. The testimony of Pryor, as acknowledged by the Magistrate is of questionable credibility.

22. ¶54

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

ANALYSIS 54. Defendants simply have mischaracterized the Findings of the Magistrate. The Court found that Larry Pryor's deposition testimony offered evidence of "less conclusive credibility" than the reports of the Inspector General's office--not that Pryor's deposition was "of questionable credibility." The Magistrate provided that Pryor's deposition revealed "additional evidence of wholesale staff corruption"--not that the Barrett and Dixon investigations revealed it. The Magistrate determined tha¯. Pryor had "worked as an informant-enforcer for various correctional officers" (emphasis supplied)--not only for "one individual."

-43-

MAGISTRATE'S FINDINGS No objection.

23. ¶55 DEFENDANTS' OBJECTIONS
No objection.

24. ¶56.

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Dr. Swanson observed that "little or no effort was taken to control illicit activity" resulting "in readily available contraband" including "drugs, alcohol and weapons to inmates apparently on demand." Swanson's conclusion is based upon corroborative evidence including written documentation as well as inmate testimony.

The record is replete with evidence showing a substantial effort at reducing and limiting contraband during TURNER'S administration. Swanson ignored information indicating significant enforcement procedures at GCI at limiting contraband.

ANALYSIS 56. Defendants appear to suggest that any efforts on the part of the correctional officers to make GCI into a model penal institution, no matter how ineffective, should absolve the prison management of any blame for the free flow of contraband. The many instances cited by the Magistrate establish ample evidence upon which to base the finding. (See, 11 56, n.15 and n.16, Findings) The testimony by Lt. Peters concerning the discovery of a 20 gallon reservoir of buck (wine) buried beneath a trailer in the middle of the compound, (Peters, Dec. 17, P¯». 366, 472), attests more to the temerity

-44-

of the inmates than to the effectiveness of any deterrent.— Nor was Lt. Peters able to recite the number of outside
felony prosecutions that had been initiated against inmates. (Peters, Dec. 12, Pg. 457). He has never taken any case to the State Attorney's office which involved an inmate found with a weapon. (Ibid., Pg. 459). He only recalls one incident in which Defendant TURNER told him to institute a criminal prosecution of an inmate found with a weapon. (Ibid., Pg. 460). An incident in which two pistols were found on the compound was investigated not by him, but by a regional prison inspector. (Ibid., Pg. 463). Lt. Peters did not know whether it was a crime to possess buck in prison, (Ibid.. Pg. 469), nor was he aware of any prosecutions for it. (Ibid.. Pg. 470).

25.

MAGISTRATE'S FINDING

DEFENDANTS' OBJECTION

GCI officers lacked familiarity with weapons, according to GCI incident reports and statements of Lt. Peters. Music implemented weapon system that may solve some problems.

Conclusion that staff at GCI were poorly trained flies in the face of substantial contrary evidence. Swanson admitted on cross-examination that TURNER implemented the new weapons system.

28/ Additionally, Defendants appear to be attempting to get "double credit" for 13 or 14 prosecutions that Lt. Peters testified had been made over the past several years in connection with contraband. Defendants quote Peters as testifying that he made 13 concerning co.rectional officers or visitors attempting to introduce contraband onto the compound. (Peters, Dec. 12, Pg. 370-71).
They then assert that, "[i]n addition fourteen criminal prosecutions were brought against various staff members for introduction of contraband." (Pg. 23, Def. Obj.) However, it is apparent from the testimony that the fourteen cases to which he alludes is merely a count of the case files that he referred to in his previous answer. (Ibid., Pg. 373-374.) None of the investigative files were further identified or placed into evidence.
-45-

ANALYSIS 57. Defendants would downplay the firearm misadventures of the GCI staff that the Magistrate chose to use as "one barometer of poor staff training." In general, the import of these incidents are self evident. However, in the instance of the shotgun that discharged because of a previously reported defect in the weapon, there is the additional question raised of why such a defect had not been repaired. Additionally, there are the incidents involving Lt. Barrett (drunken officer issued shotgun and 15 rounds of ammunition to go into compound) and the inspection report that noted: "Shotguns (perimeter patrol) were found rusty and in need of cleaning/maintenance." (P.Ex.6, Summary of Inspection).

MAGISTRATE'S FINDINGS No objection.

26. ¶58 DEFENDANTS' OBJECTIONS
No objection.

27. 159

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The Barrett-Dixon incidents

Magistrate's sweeping conclu-

underscore the day-to-day opera- sions in regard to staff morale is

tion of GCI with its staff not not supported but is contrary to

controlled by Superintendent

evidence. Magistrate's reference

TURNER. Staff morale was low. to staffing shortages, turnover

Turnover was high.

and high overtime reflect funda-

mental errors in analysis. Man-

power and staffing improved con-

siderably during TURNER'S adminis-

tration. High turnover and staff

vacancy rates could not be attri-

buted to TURNER.

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ANALYSIS 59- The basis for the Magistrate's conclusion that morale was low is addressed supra in the analysis of the analysis to 1(44, as is the relevancy--or indeed more specifically, irrelevancy, of the Defendants* assertions concerning the staffing patterns.

MAGISTRATE'S FINDINGS No objection.

28. ¶6O DEFENDANTS' OBJECTIONS
No objection.

29. ¶6l

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Directly related to the individual raping and assaults of the named Plaintiffs was the lack of proper staff supervision due to Defendant TURNER'S failure to station the officers properly.

The conclusion that the individual Plaintiffs' claims arose out of the failure of TURNER to station officers properly is not supported by citation to the record. There was not an iota of support for this conclusion.

ANALYSIS 61. The logic of this transitional paragraph is underscored by citations throughout the Findings of Fact and Conclusions of Law. Specific details are contained in the paragraphs that follow.

21. ¶62

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

As Lt. Peters admitted, due to the sheets, clothes and personal lockers hanging from the bunks and the further the obstruction of a second level of bunks in the middle row of beds, an officer's view from the cage or wicket in

The entire issue of upper bunk sheets obscuring the view of the showers is a false one. Even if there were no bunks at all in the dorms, a guard in the wicket could not see into the showers.

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which he was stationed was obscured. The view from the wicket into the shower area was even more obscured.

ANALYSIS 62. For the Defendants to assert that a guard's inability to see through the walls of the shower area--regardless of the presense of tent-like contraptions on the bunks -– is sophistry. Indeed, Turner's successor, Superintendent Randall Music, acknowledged during trial that he had ordered the tenting removed at least in part because of these very security reasons. (Music, Dec. 11, Pg. 143).

31. ¶63

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

While Peters knew that officers were supposed to be on constant patrol within the dorms, this did not take place. Turner could recall no action ever taken against an officer for failure to patrol the dormitories.

The Magistrate mischaracterized Peters' and Turner's testimony. Peters stated that officers were supposed to patrol dorms. He did not say they did not patrol. Turner actually testified that there
may have been disciplinary action taken against an officer for failure to patrol, he just couldn't recite specific instances.

ANALYSIS 63. Lt. Peters testified that the correctional officers are supposed to patrol the dormitories constantly at night, (Peters, Dec. 12, Pg. 453), and that it should take no longer than seven minutes to make a round, from shower-to-shower in the large dorms and in the two smaller dorms, four minutes,

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(Ibid., Pg. 454). From that testimony, overlayed upon the testimony by the rape victims about how long their assaults in the showers or in their beds lasted, See, (¶I23, Findings) (Aldred raped for 15 to 20 minutes in shower); Clbid.. Pg. 133) (Durrance raped for 35 to 40 minutes in shower), (Ibid., Pg. 162) (Harper, while being raped in his bed, could not see the correctional officer who was supposed to be on duty), the Magistrate concluded that there were no constant patrols.
As to the "dramatic testimony by an inmate that patrolling did take place," the incident is alleged to have occurred in late 1980 (Taylor, Dec. 11, Pg. 181) (Five or six months after entering Lake Butler Reception and Medical Center in June 1980) or early 1981 (Ibid., Pg. 200) (March or April), quite possibly prior to any incident complained of in this action. (See, chronology of incidents in discussion of analysis to ¶ 44, supra.) The testimony as to the practices of patrolling by the guards was offered by an inmate who spent three or four days in general population (Taylor, Dec. 11, Pg. 200) and whose credibility the Magistrate could have doubted because the witness, who is serving a mandatory 25-year sentence (Ibid., Pg. 196) was approached to testify by the Attorney General's office, (Ibid.. Pg. 197) and who "figured" that his testifying would be entered on his prison record (Ibid.. Pg. 200).

32. 164

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Peters recognized that no standard operating procedure

Peters testified to exactly the opposite and described in

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existed to investigate rapes or alleged rapes. No such policy was ever written.

detail the procedures for investigating rapes,

ANALYSIS
64. Except perhaps in some aspirational sense, no standard
operating procedure existed at GCI for dealing with homosexual
rape.
Q. Is there a standard operating procedure at Glades Correctional Institution, Mr. Peters, that provides that the compound officers shall pass on to you allegations of homosexual rape?
A. No. I don't believe there is, sir.
(Peters, Dec. 12, Pg. 444)
Lt. Peters described procedure that he had used to investigate an alleged rape:
Well, the first thing I do is insure that the inmate was taken to the medical department for a rape examination. Then I would speak to the inmate with the inmate and see if he would or could identify who the perpetrators were. Then we would--we would pick up the perpetrators, if they were identified, or the alleged perpetrators, conduct interviews with them. And depending on what kind of information was revealed, at that point the Palm Beach County Sheriff's Office would be involved, and from then on the investigation would be under their jurisdiction and, of course, the State Attorney's Office.
(Ibid.. Pg. 464-465).
However, Peters testified that he could only remember
investigating one rape complaint, (Ibid.). or two, (Ibid.. Pg.
467). Although Peters testified that Defendant TURNER
generally had told him what to do whenever a rape occurred,
(Peters, Dec. 13, Pg. 485), he could not recall any specific

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conversation (Ibid., Pg. 484). Of the two rapes he can recall investigating, one occurred in 1985, which is after Defendant TURNER retired. Peters, who is in charge of all criminal investigations at GCI, (Peters, Dec. 12, Pg. 362) had no familiarity with the administration of rectal examinations of rape victims beyond the name of the kit used to conduct them, (Peters, Dec. 13, Pg. 490).
Defendant TURNER did not remember any rectal examinations being conducted of the four Plaintiffs--Alfred, Harpers, Saunders and Durrance--who were homosexually raped. (Turner, Dec. 13, Pg. 718).
Nor was any policy in writing, according to the testimony of TURNER. (Ibid.. Pg. 711-12).
The Magistrate's conclusion that there was no standard operating procedure was correct.

33. ¶65

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Indeed, Defendants' own witness, Defendants agree procedures

Inspector General Brierton,

were not followed for Saunders,

opined that at the very minimum: Aldred or Harper. There is

(i) medical evidence should be

total absence of evidence that

secured; (ii) a full statement

Turner or Peters were ever

taken from the alleged victim,

advised of these rapes. At

and (lii) the matter should

most, the evidence shows only

always be referred to a local

a line officer or his immedi-

prosecutor. These steps were

ate superior failed to report

not followed.

the assault. There is

serious doubt that the

incidents were ever reported.

ANALYSIS 65. Defendants do not dispute what should have been done. In the light of the Magistrate's factual findings that the rapes

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of Aldred, Saunders and Harper did occur as the Plaintiffs indicated, see. ¶I99, Findings, the consistent failure to follow the procedure bespeaks either a total failure on the part of one line officer after another to follow procedure--or, as found by the Magistrate, (¶ 64, Findings) the absence of any standard operating procedure for reporting rapes.

34. ¶66

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

This lack of any procedure relating to the investigation of rapes resulted in the prosecution of only one rape in the entire Turner administration. Moreover, no rapes were ever reported by GCI authorities in any of the massive amounts of internal documents generated from the institution.

The reference to rape prosecution is apparently derived from Peters' testimony. Peters actually said he recalled only one case successfully prosecuted in 1984. He could not remember, without reference to records, what prosecution occurred in 1983 or prior years. In regard to reporting of rapes in the documents, the Superintendent's reports listed 5 reported sexual assaults from 1980-84.

ANALYSIS Defendant TURNER himself referred on cross-examination to "the one [rape] where we found that we had everything that we needed to prosecute." (Emphasis added) (Turner, Dec. 13, Pg. 713). The testimony supported that of Lt. Peters the day before. As to the absence of reports of rapes, the category on -he Superintendent's Monthly Report in which five incidents were reported was "Assault to Commit a Sex Act." (P.Ex. 31) There were no incident reports underlying any of the five such assaults noted on the monthly reports.

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MAGISTRATE'S FINDINGS No objection.

35. 116 7 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

36. ¶68 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

37. ¶69 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

38. ¶7O DEFENDANTS' OBJECTIONS
No objection.

39. ¶7l - ¶72

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

¶7l. Armed with the knowledge that rapes were occurring, the failure to promulgate and adhere the most rudimentary procedures constitutes a deliberate indifference toward inmate security.

¶7l. The finding that rapes occurred at GCI established nothing. The question is to one of frequency and Turner's knowledge. The records reveal five reports of rape. Turner can be held to have knowledge of only those reported.

¶72. The free flow of contraband assaultive behavior provides a picture of GCI as an institution marred by violence and illegal activity.

¶72. While there was and contraband at GCI, it was by GCI, it was by no ieans free flowing. There vas no opinion evidence that drew a conclusion that the existence of contraband implied prevalence of rape.

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ANALYSIS 71-72. The Defendants' exceptions to the Magistrate's findings at Paragraph 71-72 are devoid of any references to contradictory facts, and is merely "lawyer" argument.

40. ¶73

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The consistent and dispropor- There is nothing in the record

tlonate number of young white

which reflects the age of the

inmates who "checked in" to

white inmates in protective

protective confinement further

custody. It is not accurate

corroborates the white Plaintiffs' to suggest that raw data as

recollection of terror on the

to the number of protective

compound. (White inmates

custody inmates necessarily

constituted a minority of the

raeflects fear of sexual

prison population (397 of 833)

assault. The population

and those figures considered

figure for whites does not

Hispanics as Whites).

include Hispanics.

ANALYSIS 73. While the prison inspector's report underlying the "statistical snapshot" relied upon by the Magistrate -– a headcount of those in protective confinement on a random day -– does not contain any reference to the age of those 20 white inmates, it is the numbers, not the age that is important. For "[t]hat does seem to also verify the notion that we got, that it's assaults of white Inmates by black lnmates--20 are checking in from the white population, and one from the black." (Emphasis added). (Brierton, Dec. 13 Pg. 243). Inferences about the youth of the protective-confinement population can be drawn from the relative youth of the Plaintiffs and witness Larry Brown, as well as from the testimony of defense witness, Lt. Leo Peters, who characterized

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one prison "wolf" as preying upon "young white inmates." (Emphasis added) (Peters, Dec. 12, Pg. 396). The Defendants contention that Hispanics are not included among "whites" is discussed supra, in the analysis of ¶32 of the Magistrate's Findings.

MAGISTRATE'S FINDINGS No objection.

41. ¶74 DEFENDANTS' OBJECTIONS
No objection.

42. ¶75

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Conditions in protective custody were punitive. The cells lacked adequate ventilation; lighting was poor; up to five inmates were placed in cells containing two bunks; the cells were infested with waste and vermin; inmates in protective confinement were taunted and were housed with administrative detainees; no exercise was offered; showering was allowed only three times per week; inmates in PC lost canteen privileges.

Ventilation and lighting problems were a temporary condition due to construction. While overcrowding did ocurr for a short period of time, it is not proper to ascribe that to Turner who had no authority to incur construction on his own.

ANALYSIS 75. The Defendants dispute the Magistrate's assessment of the conditions in Protective Confinement as being "punitive" based on an October 6, 1982 Memorandum sugges-ing that some of the physical problems (i.e., poor lighting and lack of ventilation) were temporary. The reference to those problems, however, was only a minor part of the evidence on which the Magistrate based his assessment of the conditions in the confinement area.

-55-

Indeed, at the invitation of Defendant TURNER, the Magistrate had physically inspected the confinement area while holding a hearing in this action at the prison. The Magistrate noted during the hearing that "[II saw the confinement cells, and I formed certain vivid impressions of them..." (Dec. 3, Pg. 227).

43. 1176

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Notwithstanding the punitive nature of protective confinement, some inmates would remain in confinement for months. Indeed, the shortage of cell space attests to the inmate demand to "check in" which "clearly manifest a high degree of distress in the general dormitory population."

Shortages in cell space were due to a number of factors: increase in inmate population; nationwide rise in number of inmates in PC; confinement facilities housed three classifications: disciplinary, administrative, protective. Compared to some states, the percentage of PC inmates at GCI was extraordinarily low.

ANALYSIS 76. The Defendants attempt in their exceptions to offer reasons why the protective confinement area was overcrowded, but do not address the thrust of the Magistrate's Findings: that regardless of the reasons for the "punitive" conditions in protective confinement, inmates were willing to endure those conditions to escape from the general population.29—/

29/ Defendants quote witness Bri*cton as suggesting that the percentage of GCI inmates in protective confinement was low as compared to the 20 percent of the population in "some states." The cited reference, (Brierton, Dec. 12, Pg. 320), was not responsive to any question, but was an observation that Brierton made in passing concerning the dynamics of prison life.
Earlier in his testimony, Brierton noted that there was
(Footnote continued on next page)
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MAGISTRATE'S FINDINGS
Third, the general "wolfing" and cat-calls of aggressive black inmates stationed around the compound during the initial periods of incarceration when new inmates were transferred to GCI (particularly the smaller, younger and at least physically more vulnerable white inmates) would suggest, in combination with other factors, that sexual pressures were severe. The corroborative description of these inmate experiences to Dr. Swanson when he interviewed the individual Plaintiffs incarcerated in institutions in different parts of the State prior to the trial enhances the credibility of their individual recollections. The Court found that the events did take place.

1177
DEFENDANTS' OBJECTIONS
The Magistrate's reliance upon Swanson's testimony as confirming that certain specific incidents occurred is illfounded. Swanson specifically disclaimed any intention of confirming the inmate Plaintiffs' specific complaints.

ANALYSIS
77. The Defendants have taken out of context the answers given
by Dr. Swanson on cross-examination. The Magistrate in this
finding merely noted that the offering by the inmates of
similar, separate recollections of conditions at GCI enhanced
the credibility of those recommendations. This bolstering of
the credibility of the Plaintiffs' case is discussed at length
in ¶I97 of the Magistrate's Report.
(Footnote 29/ continued from previous page)
nothing in one inspection report about GCI "to indicate to me that it was any worse than the majority of the prisons in the country." (Brlerton, Dec. 12, Pg. 253). Counsel for the Plaintiff moved to strike the remark because of the absence of any foundation as regards Brierton's familiarity with other prisons. The court denied the motion, but noted that it had "some reservation about the probative thrust of the comparative statement." (Ibid)

45. 1178

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Fourth, more overt signs of

The suggestion that the hanging of

sexual activities, some consen- sheets or towels is a definite sign

sual, further provide an indi- of sexual activities ignores the

cation of assaultive rape

many non-sexually related reasons

conduct. Sheets hung from

that an inmate might have for

the bunks; inmates moaning in screening his bunk. Moaning by an

their bunks; the showing of

inmate in his bunk might be indi-

pornographic movies in a

cative of a number of things be-

trailer in which "cries and

sides homosexual activity--from

moaning" of inmates were

indigestion to self abuse. Most

heard, apparently are all part importantly, there was no evidence

of the ritual at GCI.

that TURNER ever heard or had occa-

sion to hear such moaning. Nor did

he see sheets or towels hung on

beds. The movies were selected

not by TURNER but by the Athletic

Director.

ANALYSIS 78. The Defendants' exceptions are argumentative, not factual. Defendants' suggestion that it was the Athletic Director of GCI and not TURNER who selected the pornographic movies is equally argumentative.

46. 1179

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Fifth, some rapes, in fact, were reported; although in the case of Plaintiffs Aldred and Saunders, Defendant Turner apparently was not made aware of these facts. Plaintiff Harper's reporting an<1. subsequent meeting w.th Turner is discussed elsewhere.

The Plaintiffs adduced no evidence that any of their alleged assaults were reported to TURNER except for the case of Harper, whose testimony is unreliable.

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ANALYSIS 79- That Defendant TURNER oversaw a system in which none of the rapes reported to his subordinates were then reported to him -¯ notwithstanding the indica that such rapes were occurring -– is precisely one of the foundational underpinnings of liability. The Defendants' exception is not exculpatory. The reliability of Plaintiff Harper was such that Lt. Peters chose to use him as a witness in a subsequent criminal prosecution. (Peters, Dec. 12, Pg. 411-12)

MAGISTRATE'S FINDINGS No objection.

47. ¶8O DEFENDANTS' OBJECTIONS
No objection.

48. ¶8l

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

See 1164, Analysis, supra.

Se 1164, supra.

49. ¶82

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No process or procedure was utilized to insure the full investigation of the possibility that rape had occurred. (Investigative procedures not used were: polygraphs of victims and assailants; rectal exams; psychiatric/psychological exams of victims; thorough interviews with victims by trained investigators.) Neither Peters nor Turner ever talked with two of the Plaintiffs who reported being raped.

No evidence that the rapes of Aldred and Saunders were reported to Peters or Turner. All procedures mentioned by Plaintiffs, except polygraphs were utilized.

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ANALYSIS 82. See discussion supra, Analysis, 1(64, 79. It is noteworthy that there is no citation to the record for the statements attributed to Lt. Peters concerning what procedures "were used."

50. 1183

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

As previously noted during the

Peters testified that he could

entire Turner administration,

recall only one successful

Defendant Turner and Lt. Peters prosecution in 1984 and was

could recall only one rape inci- unable to say whether there were

dent ever prosecuted. Other areas prosecutions inn prior years or

of criminal activity within the not. Even if there were only

prison met with a similar fate. one prosecution, this would

During Turner's administration

not establish anything against

no State prosecution was ever

Turner since only 5 alleged

initiated for any weapons

incidents were reported,

possession by any inmate at GCI. Nothing in respect to these

5 reports was put into evidence. Peters recalled at

least one weapon possession prosecution and inmates were frequently charged with such offenses in the internal disciplinary process.

*

ANALYSIS

83. See discussion supra. Analysis, ¶55, 66.

51. ¶84

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The Co' rt finds that the

The statements that inmates

atmosph .re that existed at GCI

roamed GCI bent on rape and

during the tenure of Defendant

violence and that Turner did

Turner was one in which inmates not seek assistance from State

bent on rapes and other expres- investigators are without

sions of violence roamed the

support,

compound with impunity. It was

an atmosphere fostered by Turner's

refusal to seek assistance from

outside federal and state prose-

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cutor and investigators (e.q., prison inspectors, sheriff's deputies, State Attorney's investigators, federal officials empowered to enforce 18 U.S.C §241, etc.).

ANALYSIS 84. As to whether the inmates at GCI "roamed" the compound, the pass procedure for inmates was instituted by Defendant Music, who replaced Defendant Turner. (Music, Dec. 11, Pg. 145) Prior to that, inmate movements from one area to another were found by the prison inspector's office to be not properly controlled and supervised by staff. (P.Ex. 6, Pg. 8) As to whether they did so with impunity, see, supra. Analysis, ¶56. The citation to the statute imposing criminal penalties for violations of one's civil rights was miscited because of a typographical error: the correct citation is 18 U.S.C. 241, et. seq.. not 18 U.S.C. § 1241, et. seq.

52. ¶85

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Peters conducted investigations at GCI only when directed by Superintendent Turner. Turner never requested an investigation of the rapes of David Aldred, Martin Saunders, or Billy Joe Harper. Each of the three P!>aintiffs had reported to other rjison authorities that they were raped; however, because there was no discernable process to inform the higher chain of command at GCI, neither Aldred nor Saunders were ever interviewed by Lt. Peters.

The reason that TURNER never ordered an investigation of the claims of Harper, Aldred and Saunders is that these claims were never reported to him - if they were reported to anyone.

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ANALYSIS 86. See discussion supra. Analysis, ¶79.

53. ¶87

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Beyond the availability of the staff of the Inspector General's office, Superintendent Turner failed to avail himself to other possible investigative arms of the government. (e.q., Attorney General, State's Attorney, F.B.I.)

The listing of outside investigation sources is not supported by any indication in the record that any of these agencies even had jurisdiction to investigate inmate assaults. There was no evidence that GCI inspectors were not able to adequately investigate any matter brought to their attention. Outside of the Barrett incident there is no evidence of any need to investigate possible federal law violations.

ANALYSIS

87. The several points raised by the exceptions to this paragraph are discussed seriatim:
1. As to the ability of the office of the Attorney General to investigate matters within state government, the District Court is asked to take judicial notice of the Magistrate's having served previously as an Assistant Attorney General for the State of Florida. The District Court is further requested to take judicial notice of Article IV, 4(c), Florida Constitution, as revised in 1968 and subsequently amended ("The Attorney General shall be the chief state legal officer"), §944.52, Fla. Stat. ("The Department of Legal Affairs shall be

-62-

the legal adviser of the Department of Corrections") and §16.08, Fl·a. Stat. (1985) (attorney general superintend and directs several state attorneys).
2. As to the policy of the State Attorney's Office, the Defendants' synopsis of Lt. Peters testimony goes beyond what was allowed into evidence over objection, which was as follows:

They [the State Attorney's Officel required in order for them to file a case that we have at least one staff witness.
If we had a situation which was termed one on one, in other words, one inmate gets assaulted and said inmate A did it and inmate A says, no, I didn't do it, the State Attorney's Office almost always declined to file a case.
(Peters, Dec. 12, Pg. 380)

Although the Defendants attempted to elicit from Lt. Peters testimony about what prosecution policy had been articulated to him by the State Attorney's Office, such testimony was disallowed as hearsay. (Ibid.. Pg. 387-90).
3. As to the ability of Lt. Peters to investigate homosexual rapes within the prison, the issue is not that he did not do so adequately--but that he did not do so a_t all. as regards either the named Plaintiffs who were raped or witness Larry Brown. (Ibid.» Pg. 445-47). Indeed, Lt. Peters did not even know of the rapes. See, also, discussion, supra, Analysis, ¾ 64.

MAGISTRATE'S FINDINGS No objection.

54. ¶88 DEFENDANTS' OBJECTIONS
No objection.

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55. 1189

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

During the Turner administration, inmates had free ingress and egress throughout the compound and dormitories. The Prison Inspector report of 1/19-21/83 notes that inmate movement from one location to another is not properly controlled or supervised.

The statement that inmates had free access over the compound is absolutely contrary to the Plaintiff's own documentary evidence. In one year there were 114 incidents of inmates prosecuted for being in "off limits" areas. From this there is no doubt that the administration did limit free access to the compound by inmates and they actively punished violators.

ANALYSIS 89. See, discussion, supra. Analysis, ¶84.

MAGISTRATE'S FINDINGS No objection.

56. ¶9O DEFENDANTS' OBJECTIONS
No objection.

57. ¶9l

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

58. ¶92

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Objections previously addressed. Objections previously addressed.

ANALYSIS

92. The fact that Defendant Music ordered the sheets and other obstructions removed from the bunks "for observation and

-64-

security". (Music, Dec. 11, Pg. 145) and that it did not require any money to do so, Clbid.), illustrates the efficacy and facility of the change, as well as the ability of the superintendent to effect the change.

59. ¶93

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Notwithstanding these obstacles As discussed above, Turner Defendant Turner never initiated specifically testified that the any administrative policy requir- post orders required officers ing officers to patrol the dorm- to patrol. Turner stated that itory on a regular basis. Turner he may well have disciplined testified that he could not re- guards for failure to patrol, call disciplining; suspending; or but was not then able to ever reprimanding an officer for mention specific instances. failing to patrol the dormitory area. Lt. Peters recognized that it would take an officer approximately ten minutes to walk throughout the dorm and agreed that if a rape took more than ten minutes in the shower area, then an officer properly on patrol would walk into the area of the shower while the rape was in progress.

ANALYSIS 93. While a post order might require a guard to patrol, the evidence indicates that the guards did not: Defendant Turner's inability to recall any disciplinary action being taken against guards for their failure to follow those orders supports inference that no guards were so disciplined. (Turner, Dec. 13, Pg. 732).

60. 1194

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Following Turner's retirement,

It should be noted that Music

Superintendent, Music removed the was only able to eliminate the

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second bunk level in the middle middle row of double bunking in row of the dormitories and res- one dorm - D; contrary to the tricted the placement of person- testimony of Swanson and implial property, sheets and lockers cation in the Magistrate's on the bunks in the dormitories Report, this modification in order to eliminate the obstruc- required the allocation of tion of the officer in the wicket- substantial funding -
$7,000 in D dorm alone.

ANALYSIS 94. The $7,000 expenditure was specifically for the purchase of new lockers, not for the rearrangment of the bunks. (Music, Dec. 11, Pg. 142).

MAGISTRATE'S FINDINGS No objection.

61. ¶95 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Aggressive "wolves" appeared to Turner testified, and

be tolerated rather than transfer- Swanson concurred, that

red out of GCI; these assailants during most of the time

were allowed to recruit and prey period at issue, the Florida

on vulnerable inmates. Atten-

prison system was at capacity;

tive review of the facts in considering two areas of

this severely limited the ability of superintendents to have

evidence reveals Turner's deliberate indifference to

transfers of inmates approved.

his responsibility to protect vulnerable inmates.

The documentary evidence more is replete with instances of swaps

used to get rid of particular pro-

blems and transfer of others when

those could be arranged. On cross-

examination, Swanson admitted that

his opinion as to the transfer of

inmates was derived from th . files

of two inmates. As a consequence,

he depended on a sample of two

inmates out of thousands who were

at GCI during this time period--a

sample which he conceded had no

validity. (Swanson, Dec. 3, P.

301-304).

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Swanson was forced to retract his prior testimony and admit that swaps of problem inmates and transfer of "wolves" clearly did occur during Turner's administration.

ANALYSIS 96. Defendants would characterize counsel's cross-examination of Plaintiffs' expert, Dr. Richard Swanson, as a concession by the expert that either Defendant Turner did all that he could do to transfer out "wolves" and/or that Dr. Swanson had no basis for his testimony that Defendant Turner was not aggressive enough in transferring them out. An examination of Swanson•s cited testimony, reveals techniques used in one aspect of Swanson's investigation (Swanson, Pg. 301-304). Among those techiques was an interview with Lt. Peters, the institutional investigator whom Dr. Swanson quoted as offering that Defendant Turner "did not seem to see this kind of inmate as a problem in the institution." (Ibid.. Pg. 134). See. ¶97, Findings. This comment was neither denied nor rebuked by Peters.

62. ¶97

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

In his short stay at GCI, Jones The six busloads of problem

shipped out six busloads of pro- inmates shipped out T>y Jones

blem inmates. In each of his first actually totaled ab^ut 40-45

six months as Superintendent,

altogether. "Problem inmates

Music effectuated-monthly-five

included both "wolves" and those

negative transfers (a rejection seeking protective confinement

of an inmate to GCI.) These

(e.g., "sheep".) The statement

efforts were not made by Turner. that a negative transfer is a

Peters opined that Turner did not rejection of an inmate is

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see inmate assailants to be problems.

false. As Music testified, he, to, had difficulties transferring out of GCI. The "opinion" of Peters was the second-hand relation of Swanson his recollection of a conversatioin with Peters.

ANALYSIS 97. Except for the initial contention that the six busloads of problem inmates transferred out of GCI by Acting Superintendent Jones totalled about 40 to 45 inmates, with which the Plaintiffs have no disagreement, the remaining portions of the exceptions to this Finding either are not supported by the cited sections of the record or are quoted out of context.
For example, Dr. Swanson, the Plaintiffs' expert, is quoted as saying that "'[p]roblem inmates include both "wolves" and those seeking protective confinement or •sheep.1" The portion of the transcript to which the Defendants refer includes this exchange:

Q. And in fact, if an institution has a wolf that it wants to get rid of, it has first got to find another institution that wants to take it, if there is going to be a swap?
A. That's correct.
Q. And you suggested that GCI should not accept wolves or sheep?
A. Wolves and sheep.
(Swanson, De<-. 4, Pg. 374)

Whether the seeking of a negative transfer constitutes the "rejection" of an inmate by the superintendent is nothing more than a semantic quibble. The six-page segment of

-68-

Superintendent Music's testimony cited as support for the proposition that a superintendent "can only subsequently seek a transfer with the approval of Tallahassee," simply does not say that: what it does say is that a superintendent may recommend a transfer. (Music, Dec. 11, Pg. 82) that recommendation must then have approval from the central office. (Ibid., Pg. 83). When an inmate is accused of having done something wrong, the superintendent tries to move him to another prison but the inmate can be moved only if a bed is available at the prison to which he is to be transferred. (Ibid.. Pg. 83-84). Superintendents sometimes use what they call a "swap-off"-a trade they arrange between themselves which must then be approved in Tallahassee. (Ibid.. Pg. 86). There have been occasions, although no number was specified, when Tallahassee did not approve such a swap. (Ibid.)
As to Music's success in arranging transfers, he admitted being "less successful" now than he had been initially. (Ibid., Pg. 162). There is, however, no testimony within the cited portions of the record in which Music either acknowledged the "same problems" as Defendant Turner, or said that he "has inmates whom he has been waiting for months to have their transfers approved due to lack of space in other institutions." (Pg. 40, Def. Obj.)
Plaintiffs do not disagree with the Defendants' assertion that Music, upon his arrival on the scene, transferred out both "wolves" and "sheep". If anything, however, such a transfer underscores Defendant Turner's failure to relocate persons who
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had been so victimized at GCI that they could only exist in protective confinement. For example, it was not until after they joined as named Plaintiffs in the instant lawsuit that Plaintiffs Martin Saunders and Edwin Johnson were ordered transferred--by a prison inspector rather than upon the recommendation of Defendant Turner. (Saunders, Dec. 4, Pg. 576), (Johnson, Dec. 6, Pg. 884).
Defendants suggest that Lt. Peter's testimony "indicated several instances where problem inmates had been transferred under Turner," (Pg. 40, Def. Obj.) and that such testimony ameliorated the frankly uncomplimentary characterization that Peters expressed to Dr. Swanson--which is classically admissable and credible testimony under F.R.E. 8Ol(d) (2)(D) (Admission against interest of an agent of a party-appointment). The cited portions of the record show that Lt. Peters recalled that one "wolf" had been tranferred to Florida State Prison during Defendant Turner's entire eight year reign as Superintendent of GCI. (Peters, Dec. 6, Pg. 398) The testimony cited at Page 467 of Peters has nothing to do with transfers.

63. ¶98

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

A more empirical review of three known inmate "wolf-assailants" is equally informative.
The Magistrate then reviewed the failure of Turner to adhere to his classification committee's decision to transfer Larry Pryor.

Authorization to keep Pryor was given by Raymond Snell, classification officer, not Turner. Music did not transfer Pryor because he was a "wolf" but because he assaulted a staff member,

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ANALYSIS 98. Refer, infra. Analysis 11 100.

64. ¶99

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The second assailant, Willie Dock, was transferred out of GCI on September 6, 1984 for "management and security reasons. This occurred only one month after interim Superintendent Ron Jones replaced R.V. Turner. Just several months earlier in March, 1984, Willie Dock participated in the gang-rape of Ronald Durrance.

In respect to Willie Dock, whom Durrance claims to have been raped by on March 17, 1984, the Plaintiffs' own exhibit reveals that Dock was in administrative confinement from March 14, 1984, until March 20, 1984.

9 9 . R e f e r , i n f r a . 11 100.

ANALYSIS

6 5 . 11100

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

The third assailant, Levi

Peters actually testified that

Fisher, was involved in homo-

Fisher assaulted only one inmate

sexual activities with young

and as a result was tranferred by

white males. Lt. Peters testified Turner to FSP. There was no evi-

that Fisher had assaulted other dence that Fisher was left in D-

inmates as well and knew Fisher dorm to further rape Harper,

to be a wolf. Nonetheless, Fisher Peters never described Dock as

was left in the D-Dorm and raped a wolf. Dock's record shows he was

Billie Joe Harper. (Peters also not a serious problem for Turner.

acknowledged that he knew that

Moreover, the fact that the admin-

Dock and Bone, who raped Ronald istration learned an inmate was a

Durrance, were wolves).

wolf does not mean the fact was

known through his stay at GCI.

ANALYSIS 100. Defendants appear to have combined their exceptions to 1198, 1199 and ¶IOO. Plaintiffs will respond in that order.

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In addressing the issues of Turner's culpability vis-a-vis the Failure to transfer out Larry Pryor, Defendants ascribe responsibility to the classification team officer who authorized the teletype which cancelled the transfer request. Plaintiffs submit that it defies logic to suggest that subordinates at GCI would have unilaterally cancelled a transfer approved by Defendant Turner. (P.Ex. 6, Flap B.) Motivation for the summary transfer of Pryor by Defendant Music is established by the fact Pryor was a wolf, etched into the record by Defendants' witness, Lt. Peters (Q. "Well, is Larry Pryor a wolf?") - (A. "I would say so.") (Peters, Dec. 12, Pg. 413).
As to Willie Dock, it is significant that the Defendants do not challenge any of the Magistrate's Findings concerning the timing of his transfer, but insist instead that one of the Plaintiffs' exhibits shows that Willie Dock was in administrative confinement on March 17, 1984 and therefore could not have raped Plaintiff Ronald Durrance that night. Durrance, who identified March 17, 1984 as the night of his rape (Durrance, Dec. 4, Pg. 444) most probably was mistaken about the exact date. For the District Court may take judicial notice that March 17, 1984 was a Saturday. Durrance testified that he went to work in the auto body and paint shop the morning after the rape (Ibid.. Pg. 470), and remained working throughout the forenoon, (Ibid.. Pg. 473), then failed to report to the utility squad work detail that afternoon.
-72-

(Ibid., Pg. 474). Such activities would have been unlikely for a Sunday morning, March 18, 1984.
As to 11100, the Magistrate based his finding that inmate-wolf Levi Fisher had been involved in homosexual activities with young white males upon, among other evidence, testimony of the Defendants' witness, Lt. Peters, that "Mr. Fisher was engaged in homosexual activities with young white inmates . . . " (Peters, Pg. 396). The Defendants are correct that Lt. Peters only identified one of the men who raped Plaintiff Durrance, as a known "wolf" ("Bone"); Peters said he did not know anything about Willie Dock.

66. ¾IOI

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Hard-core pornographic video movies showing explicit acts of intercourse and anal penetration were shown on a regular basis at GCI. The movies were a trap. They were unsupervised. Sounds of inmates screaming and crying could be heard from the trailer. Plaintiff Bronson was forced to masturbate an assailant at knife point in the movie trailer.

Swanson, while he initially referred to the movies as X-rated (he later admitted he had no exper· tise in movie ratings) never described them as "hard-core" and he most certainly never stated that they depicted anal penetration, It is noteworthy that none of the inmate Plaintiffs were sexually assaulted in the trailer where the movies were shown.

ANALYSIS 101. Dr. Swanson testified that the movies shown at GCI had been described tc him as "involving depiction of the act of intercourse, penetration, et cetera." (Swanson, Dec. 4, Pg. 376). Graphic depictions of the movies also appear in the testimony of Plaintiffs Michael Gordon, (Gordon, Dec. 6, Pg.

-73-

905) ("triple-X . . . guys having sex with one another"); and Steve H. Bronson (Bronson, Dec. 5, Pg. 691) ("It was a pornographic movie, and I say it was pornographic because it's very explicit sexual scenes of anal, vaginal and oral sex being shown.")
Defendants contend that Plaintiffs have made a "transparent effort at trying to connect the movies to the lawsuit." No such "transparent" effort is required: Plaintiffs' expert, Dr. Glenn Caddy, testified that "under no circumstances would [screening movies depicting anal and/or vaginal penetration] do anything other than maximize the possibility of sexual and other violence." (Caddy, Dec. 10, Pg. 1267).

67. ¶IO2

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

While Defendants' witness,

Brierton·s testimony is incom-

Inspector Brierton, was apparently plete. While Brierton did state

non-committal as to whether he

that he had no clear opinion on

would permit video pornographic the subject, he acknowledged

movies to be viewed which show

that there were two respectable

explicit scenes of vaginal and

schools of thought in respect

anal penetration, he did not

to the screening of movies of

hesitate in stating that he would sexual content. One school

investigate a movie event if

regards such screening nega-

inmates were heard moaning,

tively; the other regards them

crying or screaming.

as harmless when viewed by

adults.

ANALYSIS 102. Defendants apparently did not challenge the testimony of their own witness, cited by the Magistrate, would not hesitate to investigate a movie event if inmates were heard moaning, crying or screaming. (Brierton, Dec. 12, Pgs. 339-40).

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68. 1(103

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Limited financial resources

The law requires that the super-

however are not dispositive of intendent not, by intentional act

Turner's potential liability in or by reckless indifference to the

this case. Rather, the issue to rights of inmates, deprive those

be considered is whether "full inmates of their rights. Cite.

compliance [of constitutional Estell·e v. Gamble and Davidson v.

norms] is beyond the control

Cannon.

of a particular individual

and that individual can

demonstrate that he accom-

plished what could be accom-

plished within the limits of his

authority". Williams v. Bennett.

689 F.2d. 1370, 1387-88 (11th Cir.

1982).

ANALYSIS 103. A discussion of the application of Williams v. Bennett. 689 F.2d 1370, 1387-88 (11th Cir. 1982) in setting forth the legal standards for liability in this action is discussed at, infra. Conclusions of Law (Pgs. 95-101).

69. 11104

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

70. ¶IO5

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

(i) Turner failed to reprimand, discipline, or suspend staff officers who failed to carry out ass'¿nments such as regularly patrolling the dormitories, which would have minimized the opportunity for rapes and assaults at no cost.

(i) There was no evidence that Turner did fail to discipline staff for failure to patrol the dorms, and there was no proof either that guards on a regular basis failed to patrol or that Turner was made aware of any such failure.

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(ii) Turner's overall laxity with his staff insofar as evidence of minimal or no control
through reprimands, discipline
or suspension allowed correctional officers to function with impunity in the face of wholesale extortions, free flow of contraband including weapons, drugs and alcohol,and permitted sexual activities such as the pornographic movies, thus creating a general lawless climate from which the natural and forseeable consequences were wholesale inmate assaults and rapes.

(ii) There was no evidence of wholesale extortions committed by correctional officers, and no evidence that Turner was aware of any such extortions which he failec to investigate. Turner was agressive in his duties in the relevant 5 years; he had criminal charges brought against 14 officers for introducing contraband, and against 12 visitors for the same offense. Swanson specifically found that when staff violated the rules, they were reprimanded.

(iii) Turner failed to control and direct his staff and inmate population to remove sheets, personal property, and lockers draped on inmates bunks in order to. provide a clear unobstructed view for staff to monitor prisoner activities within the dormitories, at no cost. This failure led to an officers' obstructed view by the officers of the dormitory and showers where rapes of Plaintiffs occurred.

(iii) Turner did direct his staff through post orders to forbid the draping of sheets in the dorm; there was no evidence that Turner was ever maade aware on any occasion that the orders were not being carried out, and there is no evidence that he failed to discipline any officer for not carrying out the order.

(iv) Turner's rather shocking failure, to promulgate and adhere at no cost, to any meaningful process to investigate allegations of rapes and inmate assaults led directly to staff not reporting allegations of rape through the chain of command; led to rapes never reported by line correctional officers; and further resulted 4 .1 rapes not investigated with low cost procedures such as: (1) rectal examinations; (2) polygraphic tests; (3) psychiatric evaluations; and (4) in depth interviews.

(iv) The evidence actually showed that there was an establised procedure for reporting and investigation sexual assault cases. There was not a preponderance of evidence that a single rape was uninvestigated by Turner through established procedure.

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The consequences of these failures were that rapes remained uninvestigated and not prosecuted thus insuring a climate where an inmate assailant could sexually violate more vulnerable inmates with absolute impunity.

(v) Turner's failure, at no cost; to enlist the investigative; and prosecutorial assistance of other branches of government to at least make a minimal effort to investigate and prosecute rapists and assaultive inmates. Available investigative resources never properly utilized include the ((i)) Palm Beach County State Attorney; ((ii)) Office of the Inspector General; ((iii)) the Attorney General; ((iv)) the Federal Bureau of Investigation.

(v) There was no evidence that the State Attorney was not consulted on rapes. There was no evidence that the Inspector General had jurisdiction to investigate assaults, or the staffing to do so. There was no evidence that the rapes involved facts that would warrant prosecution under 18 U.S.C. Section 241. There was no showing that the institution inadequately investigated inmate assaults.

(vi) Turner fallure-unlike his successors--to impose inmate controls, at no cost, on prisoner movement throughout the compound and dormitories.

(vi) The evidence shows dozens of inmate prosectuions through disciplinary proceedings for violating the limitations on movements in the compound.

(vii) Turner's failure, at no cost, to transfer known assailants out of GCI through requests to DOC or through informal "swaps" or by merely adhering to ciassification decisions allowed Larry Pryor, for example, to remain at GCI at the times that he raped Saunders and stabbed Cobb, and also allowed Willie Dock to remain at GCI at the time he and others raped Durrance.

(vii) This conclusion also flies in the face of the uncontradicted evidence of a number of transfers and swaps which took place during Turner's administration and which involved problem prisoners. Further, Dock was in administrative confinement during the time that Durrance claimed to be raped. Pryor was given a second chance by the Classification Board; there is no specific evidence that Turner participated in the decision to give him this second chance.

ANALYSIS 105. (i) See, discussions supra. Analysis, 1(83.

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(ii) See, discussions supra, Analysis, 1(53. (The number of prosecutions of staff members), and ¶6l and ¶IIOI, (The stationing of staff members and the showing of the sexually explicit films to inmates.)
(iii) There is no citation to any prior paragraph in which "as discussed above," Defendant Turner is shown to have instructed his staff members to keep sheets from being used as curtains between the bunks. Nor is Plaintiffs' counsel aware of any such testimony in the record.
(iv) The exception to this subparagraph is purely argumentative and devoid of any facts contradictory to the Magistrate's Findings. See, discussion, supra. Analysis, ¶s 64, 79 and 82.
(v) The exception to this subparagraph is purely argumentative and devoid of any facts contradictory to the Magistrate's Findings. See, discussions supra. Analysis, ¶37, concerning the contact with the state attorney's office and the failure of the institutional investigator to adequately investigate inmate assaults, supra, Analysis, ¶ 66, concerning the absence from the files of any incident reports concerning the five sexually related incidents revealed on the superintendent's monthly report.
-78-

(vi) See discussion, supra, Analysis, 11 84.

(vii) See discussion, supra. Analysis, ¶¶96-lOO.

71. ¶IO6

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

72. ¶ 107

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

73 ¶ 108

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Magistrate finds that allegations of Plaintiffs' rapes are true based upon not only Plaintiffs' testimony but also upon Plaintiffs' expert Dr. Swanson's multi-variate approach drawing upon essentially five independent sources of data including: 1) internal archival documents generated at GCI; 2) external documents generated from independent sources outside of GCI; 3) interviews of Plaintiffs and inmate witnesses; A) interviews of correctional staff including Mr. Music, and 5) a general tour of GCI.

Contrary to the statement by the Magistrate, Swanson did not utilize his "multi-variate" approach to corroborate the inmate's individual claims of their assaults with the possible exception of Gordon and Johnson, where he found that their files contained incident reports on non-sexual assaults.

ANALYSIS 108. Dr. Swanson testified that he used a "multi-variable approach in terms of evaluating the institution." (Swanson, Dec. 2, Pg. 21) The Magistrate listed the sources that Dr.

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Swanson reviewed. See. Pg. 49, n.28, Findings. The Defendants offer no citation to the record for their statement in exception to the Magistrate's Findings.

74. ¶IO9

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Dr. Caddy, with extensive

Caddy only interviewed Plaintiffs

experience in treating both rape briefly the weekend before trial

victims and prisoners,

and had an associate administer

corroborated Dr. Swanson's

tests. Caddy admitted his opinion

determination that Plaintiffs' was Dependent on the honesty of the

rapes had occurred. Dr. Caddy: inmates, who were less than candid.

(1) interviewed Plaintiffs

He was not able to address the

and inmate witnesses; (2)

issue of Harper's veracity and

administered psychological tests; admitted some doubt as to Saunders

(3) reviewed DOC/GCI documents; credibility. Virtually all of the

(4) reviewed professional

Plaintiffs had an underlying

literature. His conclusions

conduct disorder.

were based on Plaintiffs'

separate emotional responses

which reflected post-rape anxiety

disorder. These responses could

not artificially be constructed

by Plaintiffs. Other factors

considered were commonality and

internal consistency of facts

reported to him and normal

inmate disinclination to report

rape.

ANALYSIS 109. The Defendants' exceptions indicate nothing more than that the Magistrate accepted the testimony of Dr. Caddy, the Plaintiffs' expert, for what it was: the opinion of a forensic clinical psychologist who, based on rather extensive testing and interviewing of the Plaintiffs, offered his professional opinion and the factual grounds for that opinion. The Defendants offer no facts to contradict the Magistrate's Findings, but, essentially, challenge the inferences drawn from

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and the weight assigned to Dr. Caddy's testimony by the Magistrate as the trier of fact.

MAGISTRATE'S FINDINGS No objection.

75. ¶ H O DEFENDANTS' OBJECTIONS
No objection.

76. ¶lll

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

In the instant case, three of

The Magistrate properly notes

the five sexual assaults upon

that both Durrance and Bronson

the Plaintiffs were reported by failed to report a rape to any

the victims, but simply were not prison official. His conclusion

investigated by the correction- that the other three--Harper,

al officials. The two inmates

Aldred and Saunders--reported

who did not report their assaults- that they were assaulted is based

the raped Durrance and the abused only on their testimony.

Bronson-testified credibly as to

their reasons for not reporting.

ANALYSIS 111. Defendants' exception to the Magistrate's Findings are purely argumentative. Additionally, Plaintiffs Martin Saunders, David Aldred and Billy Joe Harper testified that they did report their rapes is unrebutted and, in the case of Harper, corroborated by former inmate, Gregory Zatler. (Zatler, Dec. 5, Pg. 799-95).

MAGISTRATE'S FINDINGS No objection.

77. ¶ H 2 DEFENDANTS' OBJECTIONS
No objection.

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MAGISTRATE'S FINDINGS No objection.

78. ¶II3 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

79. 11114 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

80. 11115 DEFENDANTS' OBJECTIONS
No objection.

MAGISTRATE'S FINDINGS No objection.

81. 11116 DEFENDANTS' OBJECTIONS
No objection.

82. 1(117

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

83. ¶ll 8

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Due to the very nature of a person act of violence, the rapes that occurred are not isolated incidents of sexual conduct, but rather flow directly from the lawless prison conditions at GCI including Acts of inmate assaults by and upon correctional officers and an environment of free-flowing illegal activity.

In respect to the assaults upon inmates by officers, it has previously been noted that there was only one improper use of force over the relevant 5-year period. In respect to inmate assaults on officers, the Plaintiffs offered no comparative evaluation which might indicate that the number of such incidents at GCI was unusually high.

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ANALYSIS 118. Defendants' exception to the Magistrate's Findings are purely argumentative and are not supported by citations to the record.

84. 11119

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection

85 ¶I2O

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

No objection.

No objection.

86 ¶I2I

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

121. Additional factors underscore the injury and violation of the Plaintiffs' rapes.

121a. This paragraph reasserts the now refuted contention that rectal exams were not used at GCI.

a. Anal--as opposed to vaginal rape--has the "potential in some respects to do more physiological damage than vaginal rape." (Caddy, Dec. 10, Pg. 1254) Hence, the necessity, for rectal examinations is a standard process utilized in investigating anal rapes. This did not occur at GCI even though the clinic was equipped with rape kits by the Palm Beach County Sheriff's Office.

l2lb-e. No objection.

l2lb-e. No objection.

ANALYSIS 121. See, discussion supra. Analysis, ¶64. Additionally, there is no citation to the record for the notion that two rape

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reports were "retracted following medical examinations of the

complaints.—

87. 1Í122 ¯ 11129

MAGISTRATE'S FINDING

DEFENDANTS' OBJECTION

Plaintiff Aldred was found

It is significant that although

by Dr. Caddy to be suffering from Aldred claimed to have told two dorr

post-traumatic stress disorder officers and a lieutenant that he

as a result of his rape by black had been raped, he could not remem-

inmates at GCI. When he

ber the names of any of them,

arrived at GCI he received no

orientation but instead was

Aldred did claim that he told the

jeered at by 150-200 mostly

psychologist at Lake Butler a few

black inmates, apparently claim- weeks later "exactly what had hap-

ing him for a sex partner. He was pened" at GCI--meaning, that he

raped his second night at GCI. had been raped (Aldred, Dec. 5, Pg.

827-828). Significantly, his med-

While showering, Aldred was

ical records while containing a

thrown face first to the floor, report from the psychologist at a knife held to his throat and Lake Butler, make no mention of a

raped for 15-20 minutes by several inmates. He could not see them but recognized his assailant's voice as belonging

report of rape,
Aldred had a long history of confinement in mental hospitals in

to a black.

his youth (Caddy, Dec. 9, Pg. 1167).

Far from fitting the Magistrate's

Aldred reported his rape to the dorm officer and was told to return to his bunk. No aid was offered. At shift change he reported it again,

category of a weak, young white male, Aldred was a weight lifter who could easily handle 250-275 pounds (Aldred, Dec. 5, Pg. 826). He was serving a sentence for first

and again received no assistance, degree murder and perjury--the

30/ The closest the record comes to supporting such a statement is in the testimony of a witness for Defendants, Lt. Lawson:
[I] would say approximately two have been reported to me, that would turn out later not to be rapes.
Q. And what was done when those rapes were reported to you?
A. These inmates were escorted to the medical department for examination.
The institution investigated, was notified, and he would notify other people, administrative and what not.
(Lawson, Dec. 13, Pg. 546).

The next day he reported the rape to a Lieutenant, again to no avail. Protective custody was refused by the Lieutenant. No written report of the rape was made by GCI.

latter crime having been committed against a police officer (Ibid., 823-824).

Aldred was later transferred to the Reception and Medical Center for dental surgery. He reported the rape to a psychologist who said nothing could be done. When he was informed that he would return to GCI, he slashed his wrist.

Upon arrival at GCI, he checked into PC and was transferred nine days later.

ANALYSIS 122-129. The Defendants' exceptions contain no facts, no citations to the record that call into question the Magistrate's Findings. Rather, the exceptions are argumentative and suggest that the Magistrate, as the trier of fact, misgauged the credibility of the Plaintiff as a witness. The Magistrate's Findings are painstakingly supported by the record which are reviewed in depth in his Findings.

88. ¶I3O - ¶I43

MAGISTRATE'S FINDING

DEFENDANTS' OBJECTION

Durrance, a strongly built man, Durrance claimed he was raped revealed no difficulties at GCI on March 17, 1984, by several inmate prior to his rape. On March 17, including Willie Dock. Dock had 1984, Durrance was approached by been placed in administrative a black inmate J.R., who wanted confinement on Mavch 14, 1984, and to speak with him. They went to released from administrative J.R.'s bunk which was obscured confinement on March 20, 1984. from view by a blanket. When he stepped between the bunk, he was It should also be noted that accosted by three inmates - Bull, Durrance, like Aldred, did not fit

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Dock and Bean, two of whom had the Magistrate's profile of the

knives. He was ordered to remain victim group at GCI -– Durrance was

silent.

physically strong and, in his nine

years in the prison system, had,

Durrance was taken to a shower and, collected 25 disciplinary

area and raped repeatedly. He

report in addition, he had belonged

was reluctant to report the rape to an inmate gang at another prison,

to Officer Dixon because he had seen money and alcohol exchanged

between Dixon and inmates.

Durrance's excuses for not report-

Durrance was too embarrassed to ing the alleged assault do not

seek medical attention but sought wash. In respect to his claim

protective custody without saying that he was fearful of blacks

why. He was told it was full.

learning that he had been raped

and thereby viewing him as

He refused to go to his assigned vulnerable, it might be noted

work in an attempt to be placed that if he were gang raped by a

in confinement. He was eventually large group of blacks in a dormi-

successful. After 15 days he was tory, he would certainly have

told he was assigned to D-Dorm, expected that the fact would

where there was a lot of pressure become known among the other

to engage in homosexual acts. He prisoners. In respect to his

refused to go and was returned claim that he was too embaras-

to confinement. While awaiting sed to report to the medical

a hearing on his refusal to go to department for fear of being

D-Dorm, Durrance told acting

publicly viewed as a homosexual,

Major Barrett that he had a

it is perhaps sufficient to note

problem owing an inmate money, that he has not been reluctant

which was reduced to writing.

to broadcast his claim through

the vehicle of this lawsuit to a

Notwitstanding his attempts to hide his rape, word followed him to Polk Correctional Institution where he again checked into protective confinement on the pretence of owing money.

substantial portion of the population of this State, including its prison population. If he felt any real embarassment over a sexual assault, it is highly unlikely that he would have joined this suit.

At Hendry Correctional, one

It is apparent that Durrance, who

of his original assailants again apparently had financial problems

threatened him and again he re- with Dock and others, and who sought

quested protective confinement. protective confinement on that

basis, has after-the-fact attempted

Later, he was returned to GCI to convert that situation into

where he finally admitted being an alleged sexual assault for the

raped and was granted protective benefits acr ;uing in this suit.

custody. He remained there until

his transfer to Dade Correctional

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ANALYSIS 130-143. See, supra, Analysis of 1111 122-129; See, also, supra. Analysis, lí¶ 98, 99 and 100, concerning the date of Plaintiff Durrance's rape.

89. 1Í144 - 1Í149

MAGISTRATE'S FINDING

DEFENDANTS' OBJECTION

Steve Bronson, a white, bisexual Bronson, an admitted homosexual

transvestite arrived at GCI in

prostitute who voluntarily sold his

November, 1981. Subsequent to his favors at other institutions,

arrival he met a black gang leader claimed that he was compelled to dc

named Mack who trafficked in

so at GCI only by force. Like

protection, gambling, alcohol and Durrance, he admitted that he nevei

homosexual prostitution. He met made any report of sexual assaults

Mack while the two of them were or harrassement while he was at GC'

in a trailer with others watching or for three years thereafter.

a videocassette recording that

During the intervening period, how-

depicted vaginal and anal inter- ever, he was no stranger to litiga-

course. Mack pushed a knife in

tion against the State, the DOC anc

Bronson's side and forced him to its employees. It is therefore

masturbate Mack.

remarkable at the least that, if h¢

had suffered the incidents of whict

In June, 1982, Mack demanded Bronson become one of his pros-

he complains in this suit, that he remained silent for so many years.

titutes. After he refused, he

was waylaid by two men in Mack's

company; a rag was stuffed in his

mouth and the handle of a baseball

bat was shoved up his rectum.

Bronson was warned that he would be killed if he reported the incident. He believed the threats. He had witnessed guards giving money to inmates, inmates fellating guards, Mack's buying drugs and alcohol from guards.

Bronson was scared to ask for protective confinement but finally did so by using the ruse that family problems instilled in him an urge to escape.

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ANALYSIS 144-149. See, supra. Analysis of ¶s 122-129-.

90. ¶15Q-160

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTION

On or about March, 1983,

The Magistrate noted Peters'

Saunders was using a small

testimony that the bathroom in the

bathroom in the classifica-

classification building where

tion building. He was sitting

Saunders claimed that both Pryor a,

on the commode with his trousers Roper raped him was so narrow that

down when Roper and Pryor

person sitting on the toilet would

entered the room. The two told

hit his head against the wall if h

Saunders to keep his pants down, leaned forward. The Magistrate we

and that they were going to "get on to find that despite the

theirs." It is a very narrow bath- narrowness of the room, the allege

room and Saunders was directed

assault could have occurred in it.

to stand over the commode,

This ignores the detailed

facing the wall. As Roper

description given by Music who

lubricated his penis with Vase- measured the room and found it to

ine, Saunders attempted to bolt be just over 4 feet square

from the room, but was stopped

(51" x 54")--barely more than

and told that he would be killed a broom closet--containing both

if he tried again to escape.

a standard sink and toilet and

Roper entered Saunders. When

having an inward opening door

Roper finished, Pryor

(Music, p. 113). In a room of

followed.11/

that character, three people could

not physically fit in, much less

Lt. Peters, the institutional investigator, testified that the room was so small that Peters bumped his head against the opposite wall one way recently

could two people force their way their way into such a confined space, close the door and undertake the alleged sexual assault as described by Saunders.

while sitting on the commode.

Saunders described his position

during the penetration as

"looking over the toilet, my

hands on the wall." The

rapists, then, could have

stood facing the commode

much as a man would stand in

31/ Defendants' objections to 11150-160 were limited to findings in
¶I53 and footnote 48 thereto; the summary of findings is likewise
limited.

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front of it while urinating.
In short, there is nothing
in any of the testimony that
is inconsistent with the
conclusion that Martin Saunders was anally raped in the bathroom.

ANALYSIS

150-160. See, supra. Analysis, ¶l¶ 122-129.

91. ¶I6I-I68

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Department of Corrections reports show that Billy Joe Harper complained on several occasions of sexual assaults and had requested protective confinement for those and other reasons.
About two weeks after his arrival Harper was raped at knifepoint by inmate Fisher.. Harper testified that he checked into protective confinement the the morning after the rape with two other inmates, including Larry Turley. Turley told officers they were checking in to get away from Fisher.
About three days after checking in, Turner called them to the office. Former inmate Zatler, also at the meeting, testified he told Turner they were there because of Fisher. Harper told Turner that Fisher payed him. Turner said they were lying.
No documents show Harper or Zatler in protective custody in January 1982. However, records reflect that they were ther , together in February and March, 1982.
According to Dr. Caddy, who diagnosed Harper as suffering from an adjustment disorder, stated that his non-rape history

It is particularly significant in respect to his claim that he informed Turner that he had been raped by Levi Fisher to note that both Harper and the former inmatewitness, Zatler, claimed to be present at the time. Zatler, however, does not concur with Harper in what was told to Turner. Zatler states only that when he, Harper, and the others were asked by Turner why they were in confinement "...we told him, because of Fisher."
Nor is this the only inconsistency in Harper's testimony in the record. As even the Magistrate's Report concedes, Harper's story that he was raped two weeks after arrival at GCI and went into confinement the next day is not supported by his inmate record which shows that he did not seek confinement until almost two months after the time he claims to have been raped. Harper told Dr. Caddy that he went to Turner to tell him he had been raped; his testimony at trial, noted in the Report, was that Turner came to him while he was in PC. Harper's record contains several documents--noted in the Report--indicating that Harper on several occasions made reports that he was raped at other institutions; he now denies the reports. The reasons given by Harper for

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did not bear on the legitimacy or veracity that Harper offered with respect to the matter of rape. Dr. Caddy stated that a person raped elsewhere and raped again at GCI would be in even more need of assistance.

seeking PC following transfer from GCI is also inconsistent.
Finally, contrary to the testimony of Swanson and finding o the Magistrate that inmates had difficulty gaining protective custody at GCI, Harper had no such difficulty.

ANALYSIS 161-168. See, supra. Analysis of 11s 122-129.

92. 11169 - ¶I72

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Shortly after Johnson's arrival Defendants did produce the

at GCI he was accosted and warned report of the physical assault in

to "find you a daddy" or go into which Johnson was injured. It indi-

protective confinement.

cates that Johnson started the

fight and that Johnson's claim did

Johnson informed his classi- not arise out of any climate of

fication officer who advised him fear.

to fight or check into protective

confinement. He chose confine-

ment. He found conditions

punitive and checked-out after

two and one half months.

Shortly after checking out of protective custody, Johnson was assaulted twice. Because he was refused a dorm change, he checked back into protective custody for three days. He was again beaten and again returned to protective confinement.

Conditions in protective custody remained punitive, e`;cept inmates were allowed to go -o the gym. During one gym trip he was hit on the head with a metal stool by an inmate in administrative confinement. He required five stitches and was hospitalized for two weeks.

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ANALYSIS 169-172. See, supra. Analysis, 11 ¶ 122-129. As to the description of the incident given in the Disciplinary Report, (P.Ex. 25, Flap C), the Magistrate's having overlooked the disciplinary report is harmless error since it substantiates the version testified to by Plaintiff Johnson (i.e., that Johnson was hit over the head with a metal stool by Michael Lane.) Furthermore, the explanation for the fight attributed to Michael Lane, the assailant, irrelevant to the issues of this cause.3—2/

93. 11173 - ¶I77

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

In February, 1981, Epprecht was Plaintiff Epprecht admitted that

assaulted by two black inmates he never reported his alleged

who wished to rob him. They

assault. Turner had no reason to

hit him in the left side of his investigate because no assault was

face with a pipe.

reported. Staff vacancies occurred

because of budget limitations.

Epprecht did not identify his

assailants to officials because

he felt it was safer not to

"snitch". Superintendent Turner,

however, was not one of the

officials who inquired of

Epprecht. Epprecht felt that

inmates at other Florida prisons

he had been at could get help

more quickly than at GCI.

At the time of the attack, Turner reported, "we are currently holding 35 positions vacant at this institution to attempt to keet, our salary allocation in good shape."

32/ Additionally, it is hearsay within hearsay and inadmissible to prove the truth of the matter asserted despite the admissibility, as a public record, of the disciplinary report: no such exception is suggested by Defendants for the "testimony" of Lane, who, it should be noted, is within the custody of the Department of Corrections and, therefore, was available for testimony had the Defendants
chosen to call him.
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ANALYSIS 173-177. See, supra. Analysis, ¶¶ 122-129.

94. 11178 - 1Í180

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Cobb, a black inmate, was stabbed in the head and the arm by inmate Larry Pryor. Pryor was operating under the protection of Lt. William Barrett. Pryor's prison file reveals repeated documentation of his assaultive nature. An in-house classification team recommended his transfer for security reasons months before his assault on Cobb.

The Report ignores the cause of the fight between Cobb and Pryor. Cobb--whose assaultive conduct far exceeded that of Pryor-was actively harrassing Pryor's prison mate.

ANALYSIS 178-180. See., supra. Analysis, UK 122-129.

95. ¶I8I - ¶I83

MAGISTRATE'S FINDINGS
Gordon was assaulted three times at GCI. He was knocked unconscious once. His buttocks were burned by inmates who set his underwear on fire. He was hit on the head with a pipe.
Gordon's reaction to life at GCI was such that he lost 100150 pounds there and it was the only time during his life that he seriously contemplated suicide

DEFENDANTS' OBJECTIONS
While Gordon reported all three assaults he refused to reveal his assailants making resolution by the administration impossible. While Gordon denied it, another inmate testified he attended pornographic movies with his sex partner. Gordon's weight loss must be seen in context--he weighed 355 pounds prior to incarceration.

Gordon overheard screams of homosexual rape, found himself in an environment where blacks controlled a camp where recreation centered on drugs,

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drinking and homosexuality. The environment was anarchistic and without constraints.

ANALYSIS 181-183. See, supra. Analysis, 1111 122-129.

96. 1(184 - 11188

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

While La Marca was never raped La Marca never claimed to have or seriously injured, his com- been assaulted at GCI. plaints concern the lengths to which he had to go and conditions he had to endure to avoid such a fate.

He escaped and had six months added to his sentence to avoid death threats.

Homosexual solicitation and harassment occurred from the start of his confinement at GCI. When he reported the inmates to officials nothing was done. To the contrary, officials apparently reported to the inmates that La Marca was "snitching" on them.

La Marca was forced to use weapons to defend himself from homosexual attack.

La Marca finally checked into protective custody but found conditions there punitive.

ANALYSIS x84-188. See, supra. Analysis, ¶¶ 122-129.

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97. ¶I89 ¯ ¶I95

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Larry Brown is the only witness Brown's incident occurred well

currently at GCI. He does not

after the Turner administration.

seek damages, only declaratory His claim that he was raped and

and injunctive relief.

reported it to Lt. Minor was

refuted by inmate records and the

The day following his arrival testimony of Music. Brown did not

he was raped at knifepoint five seek PC but was given it because

times. He reported the rape,

he was selling sexual favors to

despite warnings not to report a large group of inmates. Brown

it, but the officer seemed

concocted the rape as a cover for

disinterested.

his activities.

Four days later he was brought to Lt. Minor and requested protective confinement. It was granted after he gave a written statement.

Brown wrote repeatedly to Superintendent Music about the rape but received no response.

Brown received only a one-hour meeting with a GCI psychologist in response to his rape.

Lt. Peters made no initial investigation of the rape despite evidence that it was known to prison officials.

ANALYSIS 189-195. See, supra. Analysis, ¶¶ 122-129.

99. ¶I96 - ¶I99

MAGISTRATE'S FINDINGS

DEFENDANTS' OBJECTIONS

Plaintiffs' credibility is enhanced because they did not come forward as a group. Rather, they were scattered

Plaintiffs' credibility was not enhanced because this did not initiate individual legal claims. To the contrary they were more likely

-94-

throughout Florida's prison system without the opportunities to converse with each other about their separate, individual experiences at GCI.
Moreover, there is a disincentive for rape victims to testify. Their demeanor on the witness stand reflected an obvious discomfort in publicly discussing their rapes. This discomfort was corroborated by the testimony of Plaintiffs' expert.

to fabricate a story by joining an already alleged claim by others who have set the scene. Concurrence by several inmates on several general topics was not unusual because they had been advised in advance of existing claims by Plaintiffs' counsels' investigator.

ANALYSIS 196. The Defendants' exception is argumentative and contains no citation to any evidence that would refute the Magistrate's Finding.

IV. CONCLUSIONS OF LAW

Plaintiffs discern, for the most part, Defendants' Objections to the Magistrate's 33-page "Conclusions of Law" to be a disagreement as to whether the record evidence supports the findings of facts which are in turn applied to and measured against the various legal standards in concluding liability, in contrast to a general disagreement with the Magistrate's articulation of the proper legal standards themselves.
Mindful that both parties have extensively reviewed the factual evidence in the submission to this Court, we find it unnecessary -– having already done so -– to once again explore the correctness of the Magistrate's factual findings as

-95-

supported by the record evidence. Our discussion of Defendants' perceived errors of the Magistrate's Conclusions of Law follows.
1. First. Defendants argue that Plaintiffs failed to prove and that the Magistrate overlooked the "affirmative link" required by the Eleventh Circuit in Williams v. Bennett, 689 F.2d 1370, 1383-84 (11th Cir. 1982). Essentially, Defendants maintain that the Magistrate incorrectly determined that "the conditions at GCI, whatever they might have been, caused the injuries to the particular Plaintiffs at the particular times of each occurrence." (Pg. 56, Def. Obj.)
Defendants do not quarrel with the Magistrate's application of the controlling authority of Williams v. Bennett, supra, as to this proposition.—
The record evidence is clear, indeed we submit overwhelming, that "the exacting causation link required by Williams v. Bennett, has been amply proven and documented." ¶226, Findings. Here, in summary format, the Magistrate relied
33/ The Magistrate's extensive application of the "affirmative link" or "causation" principle as articulated by our Circuit in William v. Bennett, supra. 689 F.2d 1383-84 are recited at ¶¶ 113-116, of the Magistrates Decision. As stated, Defendants do not disagree that these legal standards control.
-96-

upon a history of factual findings previously made.3—4/ 2. Second, the Defendants suggest that the Magistrate erred in
failing to consider the fiscal limitations of Defendant Turner.
(Pg. 57, Def. Obj.) (Failure to cite a full passage of Williams v.
Bennett, as "incomplete and misleading").
Defendants then criticized the Magistrate for identifying
various practices and omissions of Turner which the Court was
"convinced would have minimized or eliminated the likelihood of rape
and assaults of the various Plaintiffs at GCI", which Defendants
argue "do not demonstrate any malicious intention." (Emphasis in
original) (Pgs. 57-58, Def. Obj.)
The Magistrate's review of the facts indicating that conditions
were within Turner's financial and administrative control are
34/ The Magistrate concluded:
234. [sic][¶224, Pg. 113] Of necessity, the Court in detail has reviewed the context of the general operational policies, practices, conditions and events existing at the general time Plaintiffs' claims arose, supra. ¶MI36-105; traced Defendant Turner's knowledge of these matters which the Court has concluded reflect a "pervasive risk of harm," supra. ¶¶2O8-2ll; and reviewed these conditions demonstrating that they were all within a prudent adminitrator's administrative and financial control.
225. Having faithfully adhered to our Circuit's guideline of resolving the causation issue which "necessarily entails a very individualized approach, taking into account the duties, discretion, and means of each Defendant," Williams v. Bennett, supra, this court in addition has traced the factual details of each Plaintiff which led to their respective injury.
226. Turner's failure to properly and prudently manage GCI matters within his administrative and financial control is a direct cause of Plaintiffs' injuries. The exacting causation link required by Williams v. Bennett has been amply proven and documented.
-97-

35/ extensive, and, we submit, persuasive.—
The Magistrate then identified a "series of administrative areas
within Turner's managerial control which also impose no fiscal
limitations as evidenced in part by corrective measures taken by Turner's successors." (¶2I5, Findings).3—6 / The question is
not--as Defendants advance--whether these "administrative areas
within Turner's management control" are to be considered
individually and in isolation in order to suggest a degree of
35/ As to this principle, once again the Magistrate adhered to our Circuit's assessment of the proper legal standard as recognized in Williams v. Bennett, supra. 689 F.2d at 1381-88. The Magistrate guided its analysis of the proper legal standards as follows at 11212
If full compliance with accepted constitutional practices "is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority, then he cannot be said to have acted with callous indifference." Williams v. Bennett, supra. 689 F.2d at 1387-1388 (emphasis added) citing Scheuer v. Rhodes. 416 U.S. 232, 247 (1974); Slavin v. Gurry. 574 F.2d 1256, 1262 (5th Cir. 1978). See also, e.g.. Chestnut v. City of Oulncv. 513 F.2d 91 (5th Cir. 1975); Madison v. Gerstein. 440 F.2d 338 (5th Cir. 1971).
36/ The Magistrate found at 11215:
The Court has identified a series of administrative areas within Turner's managerial control which also impose no fiscal limitations as evidenced in part by corrective measures taken by Turners successors. These includes: (1) improper and inadequate staff training evidenced by gross problems with officers' handling of weapons, carried to the extreme in the Barrett incident, supra. ¶46; (2) a staff out of control who did not report rapes,
(Footnote continued on next page.)
-98-

"malicious intention."
Rather, we submit the proper inquiry is, whether the
administrative areas, when considered collectively and in the
context of their causal relation to the abuses found to be
perpetrated upon Plaintiffs, are within the "control" of Turner
so as to invoke constitutional liability. The Magistrate has
concluded in the affirmative. Bennett, and its progeny support
such a finding.
3. Third, to the extent that Defendants argue, that many
of the cases relied upon by the Magistrate are based upon mere
negligence. (Pg. 58, Def. Obj.), which was just recently
repudiated as a basis for constitutional liability by the
(Footnote 36./ continued from previous page.)
assaults, and illegal activities up through the chain of command, supra. 1166; (3) the failure to supervise staff and administer measures which would "minimize the chance of error and maximize the full satisfaction of constitutional protection," Bryan v. Jones, supra, in (i) not stationing officers to patrol throughout the dormitories, particularly at night, and in (ii) permitting the obscuring of vision of officers in the wicket by allowing inmates to hang sheets, blankets, their personal property, lockers and other materials resulting in the impossibility for officers to maximize the protection of inmates in the dormitory; (4) a shocking failure to employ any standard procedure to investigate incidents of alleged rapes, supra. ¶82; (5) the failure to request outside investigative or prosecutorial assistance to otherwise make some ev·¡n minimal attempt to deter rapings and assaults, supra. 1184; (6) the failure to provide inmate movement controls; thus, reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, supra. 1189; and (7) the failure to transfer known assailants or inmates who should have been known to be assailants out of GCI, supra. 1186.
-99-

Supreme Court, Daniels v. Williams. U.S. , 88 L.Ed 2d 602
(January 21, 1986); Davidson v. Cannon. U.S. , 88 L. Ed.
2d 677 (January 21, 1986), or otherwise quarrel with the
Magistrate's reliance upon other cases which are factually
"readily distinguishable," (Pg. 59, Def. Obj.); (Id_;_, Pg.
59-63), a simple and fair reading of the Magistrate's
Conclusions of Law reflect that these conclusions are not only
premised upon the general standard of "reckless or callous
indifference"--not mere negligence, See cases cited at Us
206-07, Findings--but specifically founded upon our Circuit's
controlling decision in Williams v. Bennett, supra. See ¶s 206-07, 212-13, 219, 223-26, 227-30.—f
37/ Post-Bennett decisions of our Circuit continue to apply the same "Bennett" principles. See, e.g., Wilson v. Attaway. 757 F.2d 1227, 1241 (11th Cir. 1985) holding that "personal participation is not required for liability for a Civil Rights deprivation" [citation omitted] but requiring "some causal correction between the actions of the supervisory official and the alleged deprivation." [citation omittedl; and Grandison v. Smith. 779 F.2d 637, 643 (11th Cir. 1980) ("Nonfeasance as well as misfeasance will support a Section 1983 claim" [citation omitted].
Finally, of interest, although Defendants have concluded that Roberts v. Williams. 450 F.2d 819 (5th Cir. 1972) "is of dubious precedental value", (Pg. 58, Def. Obj.) the Eleventh Circuit apparently disagrees. In Wilson v. Attaway. supra. 757 F.2d at 1227 our Circuit has continued to rely upon Roberts. It stated:
[p]ersonal participation is not required fo* liability for a civil rights deprivation. Henzel· v. Gerotein. 608 F.2d. 654, 658 (5th Cir. 1979); Sims v. Adams. 537 F.2d. 829, 831 (5th Cir. 1976). But see McLaughl·in v. City of LaGrange. 662, F.2d. 1385,
(Footnote continued on next page.)
-100-

Additionally, while Defendants may quibble with the notion that
other cases relied upon by the Magistrate are factually dissimilar
to this lawsuit, they extract no legal principle from those cases
which they contend erroneously influenced the findings of the Court.
4. Fourth, Defendants' more general objections as to: (1)
Turner's Knowledge of Pervasive Risk of Harm; (2) Series of Isolated
Incidents; (3) Injunctive Relief; and (4) Breach of Duty Imposed By
State Law (Pg. 63-66, Def. Obj.) are all essentially disagreements
of fact which have been previously reviewed extensively and are each
set forth in detail in the Magistrate's Findings: See. (1) Turner's
Knowledge of Pervasive Risk of Harm, (Us 208-211, Findings.) (2) Not
a Series of Isolated Incidents, Ibid.. (¶s 216-217); (3) Injunctive
Relief, (Ibid.. ¶256-26O); and (4) Breach of Duty Imposed by State
Law, (Ibid., ¶s 219-222).—'
(Footnote ZT_I continued from previous page.)
1388 (11th Cir. 1981) ("personal involvement," custom, or policy required), cert, denied. 456 U.S. 979, (1982). Rather there must be some causal connection between the actions of the supervisory official and the alleged deprivation. Henzel·. 608 F.2d. at 658; Sims. 537 F.2d. at 831; Roberts v. Williams. 456 F.2d 819, 831 (5th Cir. 1972), cert, denied. 404 U.S. 866, (1971). The causal connection may be established where a history of widespread prior abuse puts the official on notice of the need for improved training or supervision. Bowen v. Watkins. 669 F.2d 979, 988 (5th Cir. 1982); Henzel·. 608 F.2d at 658 n. 5; çf^. Sims. 537 F.2d at 83l·-32; Roberts. 456 F.2d. at 83l·.
38/ Defendants are correct in their objection to the imposition of any constitutional líabil·ity for a breac*\ of duty imposed by the State Law pursuant to 2O.3l5(l)(c) Fla. Stat. (1983) since that statute expressly applies, at least by its literal language, only to the Department of Corrections and not to the individual superintendents.
Deletion of this single element of liabil·ity does not, of course, undo the other l·egal conclusions expressed in the Magistrate's extensive Conclusions of Law nor does it alter Turner's overall liabil·ity for damages.
-101-

V. CONCLUSION For the reasons stated, Defendants Objections to the Magistrate's Decision should be denied. This Court should enter an appropriate Order adopting the Magistrate's Report and Reconunendations and schedule an additional hearing to effectuate the relief outlined in the Magistrate's Findings.
Respectfully submitted,
:D M. LIP ROBERT E. WEI
LIPMAN & W 5901 Suite

DATED: 30 May, 1986 O226L

HALU & AMLÓNG Fourth Fl6or - East 524 S. Andrews Avenue Ft. Lauderdale, Florida 33301 (305) 467-8505
ATTORNEYS FOR PLAINTIFFS

-102-

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, et al., Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, et al.,

Defendants.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of Plaintiffs1 Reply Memorandum to Defendants' Response and Objection to Magistrate's Report has been mailed to the following counsel of record:

WALTER M. MEGINNISS Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301

MICHAEL B. DAVIS DAVIS, CRITTON, HOY & DIAMOND Post Office Box 3797
West Palm Beach, Florida 33402

DATED: 2 June, 1986 0086L

DAVID M. LIPÎ WILLIAM R. AMLÕNG ATTORNEYS FOR PLAINTIFFS

 
 LaMarca v. turner

PC-FL-0007-¢036
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FL·ORIDA

ANTHONY LAMARCA, MARTIN SAUNDERS, and EDWIN JOHNSON,

Case No. 82-819ð-Civ-Paine

Plaintiffs,

vs.
R.V. TURNER, individually in his former capacity as Superintendent of Glades Correctional Institution, and GERALD ABDUL-WASI, in his official capacity as Superintendent of Glades Correctional Institution,

FILED by

D.C.

MAY 1 ó995

CARLOS l u ¯ f

' CLFPK U.S.

. •`T.

S.ü. .¯JF FLA.

.P.B.

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REG ,RDING THE THREE NON-JURY PLAINTIFFS
STATEMENT OF THE FACTS
This court adopts the facts as previously set forth in
the 1987 opinion, LaMarca v. Turner. 662 F.Supp. (147, 655-662 (S.D. Fla. 1987) and the Magistrate's Judge's Report and Recommendation, LaMarca, 662 F.Supp. at 671-705.l This court
While the Eleventh Circuit held that previous findings of fact are not binding on future proceedings, the d ¦fendant did not present any evidence at the 1994 trial, relating to the three (3) non-jury plaintiffs, that differed significantly from the evidence at the initial trial. Turner's testimony, for example, was substantially the same as is had been nine (9) years earlier. The only new evidence was a composite of some one-hundred (100) referrals to the Palm Besch Sheriff's Office. The consideration of the P.B.S.O. reports does not alter this Court's earlier conclusion that Tu†¯ner did not significantly involve outside law enforcement agencies in an
RE 056

again concludes that the three non-jury Plaintiffs were

prisoners who were subjected to a longstanding, pervasive and

excessive risk to prisoner safety at Glades Correctional

Institution. The defendant was aware of the substantial and

excessive risk of serious harm to prisoners at GCI,

deliberately ignored that risk, and deliberately failed to use

available, inexpensive means to reduce the risk tp prisoner

safety.

As a result of the Defendant's deliberate

indifference to inhumane conditions at GCI, the Plaintiffs

LaMarca, Saunders and Johnson were harassed, threatened,

beaten and raped. Each of the incidents in which the

plaintiffs were injured took place in a prison where the

manufacture of prison wine, screening of sexual].y explicit

videotapes, maintenance of poorly trained and corrupt staff,

and lack of adequate inmate movement controls werp tolerated

by the then-Superintendent, Defendant Turner.

The Eleventh Circuit remanded this case for three

purposes: (1) for application of the proper subjective

standard, (2) for findings on causation as to each plaintiff,

and (3) for this Court's determination whether it jwould accept

into evidence the defendant's "new proffer." I|,aMarca. 995

attempt ¯to stem the crime wave at GCI. Indeed, Turner acknowledged from the stand during the 1994 trial that he had not called for help from federal law enforcement agencies. Thus, the finding by the Magistrate that GCI was "an atmosphere nurtured by Defendant Turner's refusal to seek assistance from outside state investigators [...] as well as seek assistance from federal officials...." LaMar¦ca. 995 F.2d at 681, is still supported by the evidence.

RE 057

F.2d 1526, 1549 (11th Cir. 1993). This court will not exercise its discretion to limit its review of evidence merely to the contents of the "new proffer," some o¦ne-hundred (100) referrals to the Palm Beach County Sheriff¦s Office.2 Rather, upon consideration of all of the additional testimony presented at the second trial, including Defendant's new proffer, and the record evidence from the first trial, as well as the Eleventh Circuit remand and the intervening Supreme Court case of Farmer v. Brennan. 114 S.Ct. 1970 (1994), the court finds that the conclusions reached 9 years ago have not been undermined by any new evidence presented at the 1994 trial and are supported by the current law.
Applicable Standard After the Eleventh Circuit issued its mandate in this case, in Farmer v. Brennan, 114 S.Ct. 1970 (1994), the Supreme Court refined the legal standard by which th second or "subjective" component of Eighth Amendment claims are measured. The Court noted that under its recent holdings in Wilson v. Seiterf 111 S.Ct. 2321 (1991), Hudson vl 112 S.Ct. 995 (1992), and Helling v. McKinney. 113 S.Ct. 2475 (1993), a prison official could be held to have violated an inmate's Eighth Amendment rights in a prison conditions case
The Eleventh Circuit specifically stated that it 11 intimate[d] no view...as to whether the court Should accept it and reopen the proceedings as to these three plaintiffs." LaMarca, 995 F.2d at 1549.
RE 058

only if the inmate suffers a deprivation hich is "sufficiently serious." The Court held that his term requires a showing that the inmate be "incarcer ted under conditions posing substantial risk of serious harm Farmer at 1977. Second, the accused official must be shown to have been deliberately indifferent to the risk. Id.. r?he Farmer
Court held that this second element was one of subjective
recklessness similar to that used in the criminal llaw:
That said, subjective recklessness as used in the criminal law is a familial and workable standard that is consistent with the Cruel and Unusual Punishment Clause as integrated in our cases, and w¢ adopt it as the test for "deliberate indifference" under the Eighth Amendment.
Under the test we adopt today, an Eighth Amendment claimant need not show that prison official acted or failed to ac believing that harm would befall ai inmate, it is enough that the officia acted or failed to act despite hi knowledge of a substantial risk olf serious harm.
d at 1980-81.
While the Court in Farmer did not specifica¦lly analyze
the point at which the first, or "objective" element of such
a claim becomes sufficiently "substantial," it|s following
formulation provides some guidance:
We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards bin
RE 059

excessive risk to inmate health o safety; the official must both be awar of facts from which the inference coul be drawn that a substantial risk oil serious harm exists, and he must als9 draw the inference. Id., at 1979. The Eleventh Circuit held that the evidence already presented in this case in the first trial supports this Court's previous finding that conditions at GCI were objectively unconstitutional. For example, the court found: (1) "The evidence presented at trial of an unjustified constant and unreasonable exposure to violence at GCI clearly satisfies the [objective] standard." LaMar¢j:a, 995 F·2d at 1535. (2) "The plaintiffs presented evidence supporting five conditions of confinement that were under Turner's control and that together created an unconstitutional risk of violence at GCI: (1) a `prevalence of.. .weapons' at GCI, 2) lack of adequate patrols, (3) the lack of adequate reporting procedures for rapes and assaults, (4) the presence of `obvious and rampant indicia of homosexual activity,' and (5) a lack of supervision of officers leading to corruption and incompetence.'" ld.· at 1539. (citations omitted). Additionally, in a separate case, the Eleventh Circuit, recognized that a prison official's failure to use reasonable measures to protect inmates from other inmates constitutes a constitutional violation. Zattler v. Wainwright. 802 F.2d
RE 060 ...i_

397, 400 (11th Cir. 1986). With respect to these three

Plaintiffs, this court is not persuaded by any of the

additional evidence presented by the Defendant that these

Plaintiffs were free from a substantial and excessive risk as

anticipated by Farmer. As hereafter discussed, Defendant

Turner's failure to address prison conditions exposed these

three plaintiffs to an excessive risk of serious harm.

I. Were Conditions at GCI Unconstitutional

A. TURNER'S FAILURE TO PROPERLY SUPERVISE PERSONNEL. MANAGE THE INSTITUTION. AND DISCOURAGE STAFF CORRUPTIO EXPOSED PRISONERS TO AN EXCESSIVE RISK OF SERIOUS HARM

1. STAFF TRAINING

I

Inadequate training of staff on, inter alia, the use of weapons contributed to an atmosphere at GCI in which staff was

not in control. Internal GCI records reveal poor staff

training, maintenance, and supervision. GCI incident reports,

reviewed by Plaintiffs' expert witness Dr. Swanson , revealed

a lack of familiarity among staff with weapons. (Fcrmer P.Ex. 33; New P.Ex.)· L t · Peters, GCI investigator during Turner's

tenure, testified in the 1985 hearing that a new system

implemented by Superintendent Music may solve what he

perceived as a weapons problem. The day-to-day weapons

problems encountered by staff, as shown by incidert reports,

were compounded by the lack of regard for proper i suance and

use of weapons, as was demonstrated in the inciden involving

Lt. Barrett. (Former P.Ex. 9; New P.Ex.4). Defendant

presented no additional evidence during the 1994 trial that

RE 061

contradicted the previous evidence of laxity in management of staff.
2. LOW STAFF MORALE The Lt. Barrett incident and the investigatior of Officer Dixon reveal that Turner lacked control over staff at GCI. Management Review conducted in 1980 encompassed in employee questionnaire in which staff expressed low morale. In the questionnaire, staff stated that they believed GCI did not employ enough officers to do the job correctly, and that GCI provided insufficient instruction and guidelines to officers who became supervisors. (Former P.Ex.4, Tab B ) . Coupled with low staff morale was high turnover. (D.Ex. 14); (P.Ex. 39, Summary Statistics of Turnover Rate) (Swanson Test imony 1985, 1994); (P.Ex. 31, Superintendent Monthly Reports Reflecting Turnover). As a result of low morale, high turnover, lack of training and excessive hours worked, the staff at GCI was ill prepared to deal with its day-to-day operation. Tie staff was simply unable to protect inmates. Chronic incompetence among staff contributed to GCI's climate of high security risk. (Swanson Testimony, 1985, 1994). 3. FAILURE TO ENSURE STAFF PATROLLING OF DORMITORIES The lack of proper staff supervision in the dormitories deprived the Plaintiffs of the minimum protection against assault from other inmates. Two factors contributed to the failure of staff to adequately patrol the dormitories. First,
RE 062

Turner failed to remove obstructions which hung ìown from bunks obscuring observation of the bunk area. Although at least one defense witness denied the existence of obstructions during the 1994 jury trial, Lt. Peters admitted during the 1985 hearing that sheets, clothing and personal lookers hung from bunks in the dormitories. (Peters Testimony, ].985). The view from the wicket to the shower area was also obscured. Based on his interviews with inmates, Dr. Swanson was able, during both trials, to confirm the existence of the obstructions which made it difficult not only to see along the rows of bunks, but particularly into the shower area . (Swanson Testimony, 1985, 1994) Superintendent Music's 1985 testimony confirmed that obstructions hanging from bi.nks were commonplace when he took over administration of GCI from the Defendant.
Further, although officers were supposed to aatrol the dormitories constantly, overwhelming evidence showeql that they did not do so.
4. FAILURE TO DISCIPLINE STAFF CORRUPTION (a) LT. BARRETT Turner's failure to respond adequately to staff corruption contributed to an atmosphere at GCI in which inmates learned that the officers assigned to protect them were permitted to engage in violence, extortion and other illegal behavior without consequence. As a result, inmates were encouraged that their own illicit behavio:: would be
8
RE 063

ignored or tolerated by staff.3
The infamous "Barrett Incident," in which th¿ drunken
Chief Correctional Officer exercised power on the prison
compound when he was off duty, is a window into life at GCI.
Defendant Turner's tolerance of corruption among £taff and
violence toward inmates is exemplified by his respon¦se to the
behavior of Lt. Barrett, who was still on duty as chief
correctional officer one week after the incident, silgning off as the reviewing officer on reports ateout it.4
Both Turner and Lt. Peters testified that neither of them
contacted the Inspector General's Office to report Barrett.
Inmate Pryor's 1985 testimony corroborates th evidence accrued during the Dixon and Barrett investigations regarding wholesale staff corruption. Pryor worked as a inmateinformant for various officers who either permitted him or ordered him to harass other inmates. (Deposition of Pryor, P.35). When Pryor told Lt. Barrett that he was going to do something about Inmate Cobb, Lt. Barrett told him that whatever he chose to do should be done on Barrett s shift, Id. Pgs. 39-40). Pryor took this to mean that if h attacked Cobb on Barrett's shift he "wouldn't go to jai or get prosecuted for it." Id., at 17. Following a fight with Cobb in which Pryor stabbed him, Pryor was put in a c» nfinement cell but was never issued a disciplinary repor for the incident. Id. at 19.
Plaintiff's correctional expert, Dr. Richarc Swanson, testified that Lt. Barrett made gross errors in judgment and should have been immediately suspended from GCI on the night of the incident. The Defendant's undue delay in taking action against Lt. Barrett is typical of his poor mane.gement of prison violence. Dr. Swanson testified that the Dafendant's reaction was "oddly mild" considering the flagrant abuse of power in which Lt. Barrett engaged. (Swanson Testimony, 1985, 1994).
RE 064

(Turner Testimony, 1985; Peters Testimony, 1985). Moreover, on the night of the beatings Turner specifically told a correctional officer later interviewed by the nspector General's Office to get the Palm Beach Sheriffs off of the compound because he wanted to handle the incident in ernally. (Former P.Ex.9).
Turner's reaction to his Chief Correctional Officer's abuse of power evidences his indifference to inmate afety on the compound and_ sent a clear message to the staff and inmates: violent, reprehensible acts against prisoners will be tolerated without punishment therefore.
(b) OFFICER DIXON The investigation of Officer Dixon further dem >nstrates that (1) Turner failed to adequately screen pr ispective employees, (2) Turner failed to discipline staff engaged in widespread extortion of inmates and exchange of contraband, and (3) Turner had the means to adequately disciplin«ì corrupt staff. According to evidence gathered by the Prison In* pectors, Officer Dixon extorted inmates and their fami ies and regularly brought contraband into the compound. (Forner P. Ex. 10, New P.Ex.5). Officer Dixon was investigated whi e Turner was Superintendent yet the Defendant failed to si; spend or terminate him. It was Turner's successor, Super ntendent Music, who terminated Officer Dixon based on much of the same evidence available to the Defendant during his tenure , such
10
RE 065

as, information that before Dixon was hired by GCI he was fired from Pahokee High School after his teaching certificate had been revoked. (Former P.Ex.10, Tab C, Ne>? P.Ex.5) ; (Swanson Testimony, 1985, 1994).
Turner presented no new evidence during the jI)ury trial to rebut this Court's former finding that the iinvestigation of Officer Dixon "corroborates other inmate allegations of wholesale staff corruption with regard to ex tortion of inmates, and the free flow of contraband wi ;hin GCI." LaMarca, 662 F.Supp at 676.
5. FAILURE TO INSTITUTE PROCEDURE FOR REIORTING AND INVESTIGATING RAPES AND DISCIPLINING OFFENDERS
There existed at GCI no procedure known by the highest ranking investigator for the reporting of rapes :hrough the chain of command. (Peters Testimony, 1985). No process or procedure was used to ensure that reports of rape were fully investigated. For example, alleged victims and assailants were not administered polygraph tests, ther«i were no psychiatric or psychological examinations of victims,, and there were no thorough interviews of victims by trained investigators.5 (Peters Testimony, 1985; Turner Testimony
1 For example, Plaintiff Martin Saunders r ported his rape to Lt. Pipta after having started a figh : with his attacker, Larry Pryor. Saunders received medica. treatment because of the fight but no rectal examination was done. Not only didn't Lt. Pipta report the rape to the in titutional investigator, Lt. Peters, or further up the chain f command, but he (1) failed to issue disciplinary reports to the inmates for fighting, (2) failed to note in Saunders' inmatle file that
11
RE 066

1985; Caddy Testimony, 1985). The lack of procedure for investigating rapes resulted in
the prosecution of only one rape during Turner s entire administration at GCI. At the jury trial, theDefendant admitted into evidence the "new proffer," a group of Palm Beach County Sheriff's Reports revealing referrals from GCI of various incidents among the prison population. Only one of the sexual assault referrals resulted in a rape prosecution.
The Defendant also offered into evidenœ Assault Investigative Reports generated from 1980 to 1984 at GCI. (D.Ex.6A) Despite the credible testimony of inmates regarding the pervasive fear of sexual assault, among the fifty-seven (57) reports of assaults generated during Turner's administration, only three (3) reported sexual assault. Only one of those three (3) sexual assaults, committed by an inmate named Bogan, was referred to the Palm Beach Sheriff's Office for prosecution. (D.Ex. 6A, Tab 6A-2 through 6A-6)|. Neither of the two remaining sexual assault reports was referred for prosecution or resulted in successful separation ofvictim and aggressor.
The fact that only one of these reports resulted in the
Saunders reported having been raped, (3) failed to note in Saunders' inmate file that Saunders had been involved in a
fight with Pryor, and (4) failed to confine the rapists, and
(5) failed to record the fact that Saunders Wc.S confined because of the fight. (Former P.Ex. 26)
12
RE 067

prosecution of a reported rapist demonstrates the effect of Turner's indifference to rape among inmates. If the Defendant had instituted formal, written procedures for the investigation of rape, many of the rapes which wer Ì reported to dormitory officers and then ignored likely would have made their way up the chain of command and resulted in formal interviews by Lt. Peters with victims anc alleged perpetrators. Without a written policy mandated by the Superintendent, reports were lost in the day-to-day operation of GCI by poorly trained, poorly supervised and overworked staff. The lack of investigative procedure created an atmosphere of high risk in which inmates could rape other inmates without concern for being detected or punished. B. TURNER'S FAILURE TO CONTROL FREE FLOW OF CONTRABAND AND EXTORTION EXPOSED PRISONERS TO AN EXCESSIVE RISKloF SERIOUS
Independent, corroborative record evidence r¢!vealed the wide range of free flowing contraband at GCI during Turner's administration. Weapons, drugs, alcohol, and extortion activities all flowed from the illegal traffic Turner permitted to persist at GCI. Dr. Swanson found that "little or no effort was taken to control illicit activity 1 resulting in "readily available contraband" including "drugs, alcohol and weapons to inmates apparently upon demand." (Swanson Testimony, 1985, 1994). Dr. Swanson observed that the flow of contraband seemed to be common knowledge; "people carried knives, people smoke dope without worrying or trying to hide
13
RE 068

it from officers" and that the staff was "actively jnvolved in these illicit activities," as well as actually prolmoting the influx of contraband. Id..6 Dr. Swanson concluded that based upon his multifaceted investigation of conditions at GCI, an unmistakable pattern of free flow of contraband exis;ted at GCI during Turner's administration. Id..
Turner has offered no new evidence to rebut th!is court's previous findings that the flow of contraband at GC persisted at an unreasonably high rate. While Turner suggest s that his "new proffer"—reports of referrals to the ijalm Beach Sheriff's Office—shows an appropriate response tD the free flow of contraband, the collection of reports shows little more than the routine processing of arrests of visitors who were caught trying to bring drugs into the p ison, the rallying of sheriff's deputies to catch escapeeá , and the after-the-fact arrests of inmates for assaulting guards. Despite the seemingly prevalent use of weapons by inmates, there were no weapons-possession charges among the cases that Turner's staff turned over to the Sheriff's o :fice. The evidence establishes that contraband was widely available to inmates, (Swanson Testimony, 1985, 1994), either because corrupt officers were permitted to remain on duty (Former
Dr. Swanson's testimony is corroborated by the investigation of Officer Dixon who, although responsible for enhancing the flow of contraband among inmates was not dismissed until Turner left GCI.
14
RE 069

P.Ex. 10; New P.Ex. 5, Dixon Investigation) or because the
referrals resulted in no prosecution of the perpetrators.
During Turner's reign, despite the overwhelming e``ridence of
the presence of weapons, no State prosecution was ever initiated for any weapons possession by any inraaue at GCI.
(Peters Testimony, 1985; D.Ex. New Proffer). Bas;ed on the wholesale production of contraband,7 and the cooperation of officers in the distribution of that contraband,8 the some one hundred (100) phone calls to P.B.S.O. made over four (4) years
of prison administration, or, roughly two (2) referrals per
month, constitutes an unreasonably mild response to a
substantial risk of harm faced by inmates every hour of every
day at GCI.
During jury trial testimony, Lt. Pipta recalled an incident during Turner's administration when an officer nicknamed "Bulldog" crawled underneath a trailer and fell into a 20 gallon vat of buck that inmates had been manufacturing there. The amount of prison wine found in that incident is more suggestive of wholesale manufacturing of it than it is indicative of close supervision of the compound.
Inmate testimony revealed strikingly similar <iccounts of the availability of contraband at GCI: (Pryor Dep. Pg. 12) (selling of marijuana by Pryor) (Ibid. Pg.33) (access to knives by P r y o r — "I have so many knives."); (LaMarca Testimony, 1985) (inmates had money from selling reefer, making wine and weapons) Id.; (LaMarca Testimony, 1985)(LaMarca given knife by officer to protect himself); (Gordon Testimony, 1985) (blacks ran drugs at GCI) (Epprecht Testimony 1985) (free flow of drugs and alcohol at GCI); (Durrance Testimony, 1994) (marijuana smoke could be smelled throughout the dorms at night); (Bronson Testimony, 1994) (guards smoked marijuana).
15
RE 070

TURNER'S FAILURE TO TRANSFER WOLVES EXPOSF.n INMATES TO AN EXCESSIVE RISK OF HARM
Aggressive inmates known as "wolves" were routinely tolerated at GCI. For example, in an investigation of Inmate Green's rape, Lt. Peters, the investigator, concluded that it would do no good even to interview the accused rapist because he had a known "hate for law enforcement personnel and for any rules and regulations." (D.Ex. 49, P.3). Turned himself created an increased risk to inmate safety when he failed to transfer known "wolves." On December 29, 1903 Turner personally cancelled Larry Pryor's transfer from GCC to Union Correctional Institution. (Former P.Ex. 26; Swanson Testimony, 1985, 1994).9 When Turner deliberately cancelled Pryor's scheduled transfer, the following events had already taken place: the parole commission had issued a report in January of 1983 marking Pryor as an inmate who "reflects a serious pattern of assaultive behavior," (P.Former Ex.26), Pryor had raped Plaintiff Martin Saunders in March 1983, (Saunders Testimony 1985), and the GCI classification team had secured Pryor's transfer in November of 1983, concluding that the transfer was necessary "for security reasons. 11 (Former P.Ex.26). Nevertheless, Turner cancelled the transfer. After Turner cancelled the t r a n s f e r , Pryor stabbed Inmate Eddie
Although Turner claimed at the jury trial that he could not control which inmates received transfers, hisunilateral cancellation of Pryor's transfers shows that he had the power to control transfers, but used it selectively.
16
RE 071

C o b b — during Lt. Barrett's shift, as Barrett had nstructed him. Turner also permitted known "wolves" Willii Dock and Levi Fisher to remain at GCI despite the constan security risks they created. Turner failed to transfer Fish r despite common knowledge on the compound that Fisher was a "wolf" (Peters Testimony 1985).10 D. TURNER'S FAILURE TO CONTROL INMATE MOVEMEN ? EXPOSED INMATES TO AN EXCESSIVE RISK OF HARM
During Turner's reign inmates were free to ro m through the dormitories and the compound. Inmates were 1lowed to
crawl under the fence running along the protective confinement
cells and harass or threaten inmates housed ther (Swanson Testimony, 1985, 1994), and inmates roamed free y in the dormitories at night. Id.. Dr. Swanson's tes imony is corroborated by the Inspector General's Report of 1 83 noting that inmate movements were not properly controlled nor supervised by staff. (Former P.Ex. 6 ) .
Despite the evidence showing a lack of cortrol over inmate movement, defense witness Lt. Pipta insist ed at the jury trial that Turner did institute a "pass system." However, Lt. Pipta admitted that the "pass" syste in place during Turner's reign applied only to the various w<t>rk squads which required an inmate who did not report to work to have in
10
Peters also testified that Willie Dock and Bone, who raped Inmate Durrance and were known "wolves" were not transferred.
17
RE 072

his possession a particular slip of paper.11 The work squad system did not account for inmate movement near the protective confinement cells nor did it apply to inmate movement within the dormitories. It was not until Superintendent Music's administration that an official institution-wide iþass system was created. (Swanson Testimony, 1985, 1994).
E. OFFICIAL DOCUMENTATION SHOWS THAT INMA ES AT GCI WERE EXPOSED TO AN EXCESSIVE RISK OF HARM
1. TURNER'S FIRST LETTER TO SECRETARY WAINVfRIGHT
As early as 1979, Turner was aware that an u: acceptable risk of serious harm existed at GCI. On March 15, 979 Turner wrote a letter documenting the excessive risk to iinmate safety at GCI in which he noted that having one-third of the staff positions vacant was "dangerous to staff and inmate population [emphasis in original] Only two officers assig ed to 220 inmate dorm for supervision of inmates." (D.Ex.14) Turner added that he was "apprehensive about our ability to control this population under the circumstances." Jd..
u
Lt. Pipta admitted that after Turner left a "new pass system" was instituted whereby inmates were issued regulation DOC passes.
18
RE 073

2. THE 1980 PALM BEACH COUNTY GRAND JURY PR SENTMENT Circumstances at GCI did not improve after Turner sent the above referenced letter. Ten months and fifteen (15) days later the Palm Beach County Grand Jury issued a p esentment raising serious issues of inmate security and poor prison management. (Former P.Ex.4). The Grand Jury repor ed having heard testimony relating to "lax security precaut ons," and free flow of contraband "including drugs, alcohol, gambling, theft, confiscation, and payoffs among the in nates and personnel of GCI." Id..
3. THE 1980 DEPARTMENT OF CORRECTIONS 1ANAGEMENT REVIEW
Approximately eight (8) months after the Grand Jury presentment, the Inspector General's Department of Corrections Office conducted a management review of GCI (P.Fo mer Ex.4, Tab B ) . The lax security precautions documented by the Grand Jury had still not been cured. The review team, an independent investigative arm of DOC observed conditions at
GCI and concluded, in part, that
Supervision in all three general areas of the compound must be described as serious, due to the lack of security personnel. Vacancies continue to be a serious problem. The dormitory situation is critical as there have been occasions when one dormitory officer is responsible for supervising more than one dorm at the same time. (P.Ex.4, Tab B, p.4). The Review documented an iincrease of
inmate-on-inmate and inmate-on-staff assaults, a :rend that
19

RE 074

_L

had been developing over the previous six months, and concluded that security problems were exacerbated by the low morale of GCI staff. Id. An employee survey supported the D O C s conclusions, Id-
4. TURNER'S SECOND LETTER TO WAINWRIGHT After another ten (10) months had passed, Turher finally notified Secretary Wainwright that the institution was out of control. In his letter of July 16, 1981, Turner w::ote, "[o]n an almost daily basis I feel that our security staff is simply being tolerated by the inmate population rather than being in control of the operation of the institution." (emphasis added). (D.Ex. 13; New P.Ex. 6 ) . 5. THE 1983 INSPECTOR GENERAL REPORT Despite the series of written warnings stretching from 1979 to 1981 documenting the laxity in security, poor prison management, and lack of control over the inmate population at GCI, an excessive risk of serious harm to inmìtes still existed in 1983 when the Inspector General investigated the institution. (Former P.Ex. 6; New P.Ex. 8 ) . After spending three (3) days at GCI, the Inspector General's Office wrote, "we fail to understand and appreciate laxity, and in some
instances, the disregard for established procedu:-es. Id.
The Inspector General concluded that "the team found a need for a great deal of improvement at Glades Correctional
20
RE 075

Institution." Id.12 II. Did Defendant Turner Know of and Disregard an Excessive Risk of Serious Harm to Plaintiffs at G.C.I.?
A. THE ELEVENTH CIRCUIT HELD THAT THE EVIDENCE SUPPORTS THIS COURT'S FINDING THAT THE DEFENDANT KNEW OF AND DISREGARDED AN EXCESSIVE RISK OF SERIOUS HARM TO [NMATES
The Eleventh Circuit already held that the evidence previously presented in this case supports a finding that Turner knew of and disregarded unconstitutional conditions at GCI as follows:
(1) "The plaintiffs' evidence painted a dark picture of life at GCI; a picture that would be apparent to any knowledgeable observer, and certainly to an o.Fficial in Turner's position." LaMarca, 995 F.2d at 1536 (emphasis added).
(2) "[P]laintiffs presented evidence (1) that Turner failed to ensure that his direct subordinates followed the policies he established, and (2) of specific, low-cost actions that Turner could have taken and that his successors successfully undertook. This evidence supports a finding that Turner knowingly `fail[ed] adequately to supervise correctional officers up to the lieutenant level[,] result[ing] in corruption and incompetence among the officers
12
The team noted a particular need for a moil·e orderly arrangement of inmate property which corroborates inmate testimony that staff permitted personal belonging^ to block observation of the bunks. Id.
21

and a lack of reasonable protection of inmates.'" X$l. at 1537
(citing LaMarca, 662 F.Supp. at 665) (emphasis add id) .
(3) "We agree with the district court that the
plaintiffs' evidence supports the findings that Tu: ¯ner could
haver but did not,, take steps to minimize at least the
following problems at GCI:
(1) improper and inadequate staff training . . . , (2) a staff out of control who did not report rapes, assaults, and illegal activities up through the chain of command, (3)[Turner's] failure to supervise staff and administer measures which would `minimize the chance of error and maximize the full satisfaction of constitutional protection,' in (i) not stationing officers to patrol throughout the dormitories, particularly at night, and leave the wicket cage, and in (ii) permitting the obscuring of vision of the officers in the wicket by allowing inmates to hang sheets ..., (4) [Turner's] shocking failure to employ any standard procedure to investigate incidents of alleged rapes, [(5)] [Turner's] failure to provide inmate movement controls thus reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, and [(6)] [Turner's] failure to transfer know[n] assailants or inmates who should have been known to be assailants out of GCI.
Id. at 1537-38 (quoting LaMarcaf 662 F.Supp. at 708)(emphasis
added).
(4) "The evidence supports the plaintiffs' I assertion
that Turner could have brought GCI within constitutional norms
through .more diligent supervision of his officers , by
establishing and enforcing rules and procedures to eliminate
specific source of danger to prisoners, and througji low-cost
modifications to GCI's physical plant. In particul ar, Turner
22

RE 076

i_.

could have taken significant steps to eliminate tie highly permissive atmosphere at GCI both as to officers shirking their duties and as to prisoners engaging in extortion, harassment, sexual activity, and sexual and other c ssaults." Id., at 1539 (emphasis added).
(5) "[T]he evidence strongly supports a finding that, even within the constraints he faced, Turner had the means substantially to improve prisoner Safety at GCI. This evidence also supports findings that Turner knew that the actions he undertook would be insufficient to provide inmates with reasonable protection from violence, and that other means were available to him which he nevertheless disregarded. Such evidence provides the necessary causal link between Turner and the infirm conditions at GCI." Id., at 1539 (emphasis added).
(6) "[T]he evidence supports the plaintiffs ' position that Turner recklessly disre¤arded the necessary means to protect inmate safety." Id. at 1538 (emphasis added).
B. THE DEFENDANT KNEW OF AND DISREGARDED AN¡ EXCESSIVE RISK TO INMATE SAFETY WHICH EXISTED AT GCI
Plaintiffs may prove a prison official's knowledge of an excessive risk of harm to inmates by showing, (1 ) that the risk was obvious, or (2) that the risk was lor gstanding, pervasive, we 11-documented, or that the risk was expressly noted by prison officials in the past, and (3 that the defendant-prison official was exposed to information concerning the risk. Farmer v. Brennan, 112 S. C\: 1979. It
23

RE 077

...i

is no defense to evidence showing an obvious ris that the defendant-prison official "merely refused to verify underlying facts that he strongly suspected to be true, or d eclined to confirm inferences of risk that he strongly suspected to exist...." id..
l. THE EXCESSIVE RISK TO INMATE SAFETY AT GCI WAS LONGSTANDING. PERVASIVE. WELL-DOCUMENTED AND NOTEC BY PRISON OFFICIALS
As early as 1979, Turner admitted, in writin¦g, that he knew of an excessive risk to inmate safety at G :i. (New. P.Ex. 6 ) . The letters to Wainwright, along with the other official documentation discussed, infra, show, conclusively, that a longstanding, pervasive and expressly noted risk to inmate safety existed: (1) "longstanding," in tiat it was officially documented from 1979 to 1983, (2) "per rasive," in that it resulted in severe security breaches and v Lolation of prison regulations and manifested itself in inmat 2-on-inmate violence, inmate-on-staff violence, free flow of contraband, inmates in possession of weapons, rampant drug use, failure to train and supervise staff, and failure to insure the assignment of at least one officer to patrol eac i dorm, and (3) "expressly noted by prison officials," in that the DOC, Inspector General's Office, Correctional Officers and Superintendent Turner all noted that an excessive risk existed. While the DOC and the Inspector General's; Office are not parties to this action, each's knowledge canfcxìimputed to Turner who was both privy to official document:; from each
24
RE 078

office and himself communicated with each rega ding the conditions at GCI.
2. TURNER WAS EXPOSED TO INFORMATION CONCERNING THE RISK TO INMATES
In addition to the documentation reviewed infré , Turner was also exposed to investigation-of-assault reports generated by his staff. One such report details the investigc tion of a reported rape in 1982. (D.Ex. 49, Pg. 1-3). The victim, Inmate Green, was confined to a single cell with two other inmates. Green reported that his cell-mate, Inmat e Dunfee, forced him to have anal sex at knifepoint. After the first incident, Green was too terrified to report the inci ent. The morning following the second rape, Green told Lt. P€ters what had happened to him. Id.. Green's third cell-mat Inmate Summers, admitted that he heard "tussling on the upi;>er berth" of the cell bunks, where Green told Lt. Peters he had been raped. Summers also told Lt. Peters that Green to d Summers he had been raped and Summers suggested that he report it.13 The response, or lack thereof, to the rapes is shock ing. The case was "exceptionally cleared" with no referral t the Palm Beach Sheriff's Office, no counseling for the vict m, and no disciplinary charge for the suspect. Id.. The r apes were ignored despite the Chief Investigator's knowledge that the
The report also noted that sometime after the rape/s, Green became so despondent over the rapes that he qut a main artery in his arm with a razor blade. Id.
25
RE 079

rape suspect was a "wolf." The following excerp i from the

investigative memo reveals that Lt. Peters, Turn er's Chief

Investigator, specifically instructed the officer n t to speak

to the rape suspect about the incident:

Writer asked Lt. Peters of his opinion o Dunfee and he states that Dunfee is a constan source of trouble at the prison. He is doin¢ a life sentence and he is extremely hard core will not communicate with the administrativ personnel and felt that speaking with Dunfe in relation with this would be a totall· fruitless act as Dunfee has an outspoken an [sic] disregard and hate for law enforcemen personnel and for any rules and regulations.

(D.Ex. 49, P. 3 ) . The only action taken by the reporting

officer and Chief Investigator regarding the r pe was to

transfer the victim to another confinement cell.

14

It can hardly be disputed that allowin a known

"extremely hard core" inmate to continue harassirg , beating

and raping inmates simply because to confront him would be

14
Another report of an inmate-on-inmate assatlt reveals more evidence of indifference to inmate safety In 1982 Inmate Padilla was attacked by a group of inm tes. The officer who filed the investigative report remarke that Sgt. Nappi (who testified in Turner's behalf at the Jury Trial) and Lt. Peters told him that the perpetrators had b en heavily involved in strong arm robberies, assaults and arassment, "over a long period of time, but were never £»rou ht to task due to the fact that all the victims declined to report the incidents for whatever reasons(s)."(D.Ex.6A, Tab 15). The fact that Sgt. Nappi and Lt. Peters knew that tí e victim's attackers were "wolves" even though all prior vict .ms refused to report their assaults reveals the inadequacy < f Turner's claim that he did not know about inmate rape bee use it was
underreported. Obviously, staff, including high ranking
officers like Nappi, Peters and Turner, knew quite a lot about inmate-on-inmate assault at GCI.
26

RE 080

i

"fruitless" constitutes knowledge of an excessive risk to inmate safety, and reckless disregard of that risk, Turner was exposed to information related in the report yet ailed to take even minimal steps to prevent Dunfee from rapirg again.

Turner claimed during his most recent trial testimony

that he was present on the compound daily, occasionally went

into a dormitory and sat on an inmate's bunk to ta].k, would

lie in wait for escaping inmates whose plan the administration

had detected, and personally

computer message

cancelling the transfer of known "wolf" Larry Pryor. (Turner

Testimony, 1994; P.Former Ex.26; Swanson Testimony 1985,

1994).

A Superintendent as intent as Turner in involving himself

in daily prison life could not help but notice the indicators

that a substantial risk of serious harm to inmates existed.

Daily life at GCI, by both parties' accounts, encompassed the

following bizarre incidents: (1) the day a correctional

officer fell into a 20-gallon vat of buck hidden underneath a

trailer (Lt. Pipta Testimony, 1994), (2) the day four inmates

remained unsupervised long enough for them to saw through

prison bars on a restroom window and escape (D.Ex.ft2, Pg.6),

(3) the day protective confinement records showed that twenty

white inmates and only one black inmate were "checked in," (4)

the day a correctional officer reported that he had observed

three inmates, one of whom had exposed his penis, preparing to

engage in non-consensual homosexual act and then cropped the

27

RE 081

incident without further action because the victim h< id engaged

in consensual homosexual sex in the past (D.Ex. 49, >g.13-16),

and (5) the day Turner's Chief Correctional Officer in charge

of security staggered onto the compound wearing clowi make-up,

inebriated, requested and received a shotgun and fifteen (15)

rounds of ammunition, and, assisted by Lt. Pipta, r¦ounded up

inmates, forced them to lie face down on a sidewalk and

struck three of them in their heads with the bu :t of his

shotgun.

_ „

III. Did the Unconstitutional Conditions Cause Each of Plaintiffs' Damages?

A. THE ELEVENTH CIRCUIT HAS HELD THAT THE EVIDENCE SUPPORTS THIS COURT'S FINDING THAT THE DEFENDANT'S DELIBERATE INDIFFERENCE WAS A CAUSE OF THE PLAINTIFFS' CONSTITUTIONAI DEPRIVATIONS

(1) "[T]he evidence strongly supports a finding that,

even within the constraints he faced, Turner had the means

substantially to improve prisoner safety at GC

This

evidence also supports findings that Turner knew that the

actions he undertook would be insufficient to provid¦e inmates

with reasonable protection from violence, and that o_ her means

were available to him which he nevertheless disregarded." id..

at 1539 (emphasis added).

(2) "[The] evidence provides the necessary causal link

between Turner and the infirm conditions at GCI." Iä . at 1539

(emphasis added).

28

RE 082

(3) "Finally, the evidence shows a link between the unconstitutional conditions and the plaintiffs' injuries. [. .. ] The evidence thus permits a finding of a causal link between the objectively intolerable conditions at GCI and the plaintiffs' injuries." Id., at 1539.
B. MARTIN SAUNDERS' INCIDENT 1. causation
When Martin Saunders stepped out of the prison van at the GCI compound he witnessed a "great multitude" of bl ck inmates line up at the prison gate. Immediately, he felt l]ike he was in a meat market. (Saunders Testimony, 1985). Saunders received no orientation from the GCI administration on the day he arrived or on any other day that followed.
Saunders' only orientation to life at GC: came the evening of his arrival when a group of bla< k inmates approached him offering friendship that had homosexual overtones. (Saunders Testimony, 1985). Inmates ¿ ames Roper and Larry Pryor would not give up when Saunders refused their offers of "friendship." When Saunders refused, Roper and
Pryor attacked him. Id.. Following a visit with l·.isfamily, a
Saunders returned to his dorm to find Pryor, arned with a knife, demanding that Saunders give him $5.00 his parents had just given him. Saunders gave Pryor his money on tiat day and on another occasion when Pryor demanded money. Is Another time, Pryor and Roper snuck up behind Saunders while he was watching television, punched him in the side of the head, took
29
RE 083

his personal property, and threw it in the shower. Id.. Saunders knew that Pryor and Roper were the culprits because he saw his towel hanging from one of their bunks.
Although Saunders complained to several corij¯ectional officers about the abuse, they told him that he should deal with his problems and should fight back. Id. On5 of the correctional officers who was supposed to help Saunders instead responded by making homosexual advances.15
Saunders was -raped in March of l·9£3 while usin<j a small bathroom in the classification building. He was setting on the toilet with his pants down when Pryor and Roper 2ame into the bathroom. Id.. The two told Saunders to keep lis pants down because they were going to "get theirs." Sauiders was forced to stand directly over the toilet and face the wall in the narrow bathroom. Roper stopped Saunders from leaving the room, telling him that he would be killed if he tried to escape. Roper lubricated his penis and entered Saunders' anus. Id.. Saunders could tell that Roper ejaculat¢d because of the groans he made. When Roper finished, Pryor followed Id. Saunders testified that Pryor also ejaculated inside of Saunders. The incident took about 25 minutes to a half-hour. Pryor and Roper left the bathroom laughing about how, "That's some good pussy."

15

The officer pressed himself against Saunders from behind

and ran his hands down Saunders' arms which Saunders took to

be a homosexual advance. Id.

|

30

RE 084

t

After the rape Saunders sat on the recreation ield and cried for an hour. Then he went in search of his rapists. When he found Pryor he attacked him; after the fight broke up Saunders told Lt. Pipta that Pryor and Roper had raped him. Id.. Saunders thought that Pipta didn't believe him; although Pipta had Saunders taken to the clinic for injuries received during the fight, there was no rectal examination pone. Id.. On the way to the clinic, the officer escorting Saunders told him, with regards to the rape, "That's not what we're here for." Because of the fight, Saunders was placed in administrative confinement for three (3) to four (4) days. In confinement, Saunders was subjected to punitive conditions including being housed in a one-person, roach inf' sted cell with three (3) other inmates.
Saunders' inmate file is void of any record of the reported rape, the fight, the physical examination of Saunders, or Saunders' admittance into confinement. (Former P.Ex.26). Saunders testified that Roper and Pryor were not confined concerning the rape and no disciplinary reports were issued concerning the fight. Id.. The institutional investigator testified that no one told him about: Saunders' rape nor told him to investigate it. Id..
When he was released from confinement, Saunde::s arranged a transfer to C dormitory so that he could escape Pryor and Roper. He managed to get the transfer by giving up his prestigious job as steward in the staff dining roonjt and taking
31

RE 085

1

a job cutting sugar cane. Dormitory "C" was not much of an improvement. While in
"C dorm," Saunders was harassed sexually by inmate Charles Street. Street kicked Saunders in the groin. (Foimer P.Ex. 29). Street, who slept next to Saunders, told Saunders that he would "get him;" Saunders feared that Street would succeed because Saunders' bunk was obscured from the dormitory officer's view by towels that were draped from the t >p bunk to form a tent. (Saunders Testimony, l·965). From where the dormitory officer was stationed at night, he could not see Saunders when Saunders was in his assigned bed. The only way Saunders could see the guard was to hang his head ov»r the bed perimeter. J&. Saunders knew that if someone wanted to kill or rape him they would get away with it. Id.
When he could no longer bear conditions in C <Äormitory, Saunders checked himself into protective confi lement on November 10, 1983. (Former P.Ex. 29, Section B ) . Saunders was one of the seventy-six (76) persons who went into either administrative or protective confinement during the month.
16
Saunders reported that the conditions in protective confinement had not changed since the time he was confined for fighting' with Pryor. (Saunders Testimony, 1985). Notwithstanding § 33-3.082(4), Florida Administrative Code, and GCIƒs Operating Procedure 83-40, which required treatment of PC inmates "as near that of the general population as assignment to protective confinement as the housing area will permit" (Former P.Ex.3, Tab F 2 ) , protective confinement at GCI stripped an inmate of all privileges. (Swanson Testimony 1985, 1994).
32
RE 086

The assault by Street on Saunders went unreported both in logs recording assaults and those recording sex acts; Turner failed to report either incident in his monthly report^ to the regional director. (D.Ex.14).
2. SAUNDERS' DAMAGES This Court has previously granted Martin Saunders $30,000.00 in damages. LaMarca, 662 F.Supp. at 567, 715. Defendant presented absolutely no evidence to counter Dr. Caddy's damage testimony in 1985 orL·n-1994. In his most recent assessment of Saunders' psyc hological profile, Dr. Caddy concluded that Saunders suffers from Post Traumatic Stress Disorder. (Caddy Testimony, 1994). Saunders cannot discuss the rape without crying from the degradation and fear he still feels. Id.. At the time Caddy iir.terviewed Saunders in 1994, Saunders was being housed n Martin Correctional Institution alongside his rapist, Janes Roper. Caddy concluded that this living arrangement caused ½ightened anxiety and depression for Saunders. The court find that the previous award of $30,000 is sufficient to compensat Saunders for his injuries. C. EDWIN JOHNSON'S INCIDENT 1. Causation Four weeks after Plaintiff Edwin Johnson arri` ed at GCI he was attacked by a black inmate with a knife wh( told him
that he had to choose a "sugar daddy" or check into protective
confinement. (Johnson Testimony, 1985). Johnson re )orted the
33
RE 087

incident; his report met with indifference ::rom his classification officer who told him that he could either go into protective confinement or find a weapon and fight back. id.
Johnson decided not to fight back for fear that a fight would jeopardize his approaching parole date; he checked into protective confinement instead. In protective corfinement, Johnson was housed with two other men and was stripped of his privileges. Id..17 After a month and a^Tialf, Johnson checked out of confinement on the advice of the lawyer representing him on the parole matter; Johnson's lawyer told him to leave confinement because there were no programs there to assist him in getting his parole. Id..
Two weeks after Johnson checked out of confineicent he was beaten by a group of inmates who stole some of his personal property. Because of the fight he was interviewed by Lt. Lawson, to whom Johnson declined to give the naifes of his attackers for fear of being labeled a "snitch."
The day after the interview with Lawson Johnsoiji was again attacked by one of the same inmates who. had assaulted him before. Id. After the fight Johnson asked Lt. Lawson for a dormitory change. Lawson refused to transfer Johnson to another dorm. Id.. Faced with the prospect of living in an
17
During this time there was no gymnasium for inmates in confinement.
34
RE 088

open dormitory with his attackers, Johnson once gain opted

for punitive living conditions and checked into protective

confinement for three (3) days. Id.. When Johnson ame out of

confinement he was assigned to a dormitory wher Ì five (5)

inmates covered him with a blanket and beat him.

Johnson

immediately checked back into protective confinem nt. Id-

Back in protective confinement for the tiird time, Johnson experienced the same punitive living cond tions that

he had in his previous visits to •conf inement. The only difference was that protective confinement in: nates were

allowed to go to the gymnasium with inmates who were being

housed in administrative confinement.18 Id. One d y when the

mixed group was coming back from the gymnasium, one of the

administrative confinement inmates hit Johnson i n the head with a metal stool. Id· Johnson was hospitali2 ed for two

weeks.

2. JOHNSON'S DAMAGES

Out of all of the plaintiffs, Dr. Caddy markec Johnson as

the plaintiff whose injuries incurred at GCI have esulted in

the most neuropsychological damage. (Caddy Testiiti ny, 1994).

This Court previously assessed Johnson's amages at

$13,000.00. LaMarcar 662 F.Supp. at 667, 715. However , this

18
Turner, Peters and other defense witnesses dmitted at both trials that both inmates awaiting protectio a and those awaiting disciplinary reports were housed in adn inistrative confinement. (Turner Testimony, 1985, 1994; Peters Testimony, 1985; Pipta Testimony, 1994).
35

RE 089

Court's previous assessment was calculated befor Dr. Caddy was able to discern the degree of neuropsycholog _cal damage caused when Johnson was hit on the head with a met¡ìl stool at GCI. Dr. Caddy testified that after he testified in 1985 he received training in neuropsychology that allowed him to pinpoint the brain injury sustained by Johnson. (Caddy Testimony, 1994). Caddy testified that Johnson sustained a severe head injury which caused Johnson to lapse iinto a brief coma. Id. Caddy-concluded that no ¾mount of psychological treatment will return Johnson to his pre-assault condition. Id. Caddy predicted at trial that because of John on's brain injury, he was unable to re-integrate himself into society and would likely spend the rest of his life being a rested for minor crimes. Id.. Accordingly, Johnson's awa d will be increased to $30,000 to provide for the medical treatment he now reguires.
Caddy testified that Johnson needs the following as the result of the attack at GCI: (1) a mental heal th manager, costing $4OO.OO/$5OO.OO per month, (2) hospitalization, and (3) comprehensive neuropsychological evaluation. Id.
D. ANTHONY LAMARCA'S INCIDENT 1. Causation
Anthony LaMarca spent much of his time a GCI as a
"hunted" man desperately seeking protection rom fellow inmates. His experience demonstrates to what lengths inmates
36
RE 090

at GCI had to go to avoid being victims. Like Saunders, LaMarca learned the day he arriv id at GCI
that other inmates identified him as a sexual partn ¡r. Upon LaMarca's arrival at GCI he was confronted by a group of black inmates catcalling to him, "fat skinny white boy." LaMarca later learned that the term meant that the inmates thought of him as a young, slight white man with large butt icks. Id. After only three (3) days on the compound, LaK area was approached by Inmate Kenneth Storys who told him t lat if he didn't pick Storys or someone else as his "daddy" he would not be able to live in the inmate population. Id. Unlike Saunders and Johnson, LaMarca did not immediately check into p¡rotective confinement. He was embarrassed at having been ma ked as a vulnerable inmate; when LaMarca finally did check into protective confinement, he had endured a year-lo ig ordeal filled with harassment and threats from inm tes and indifference from staff.
The first time LaMarca sought help was when he reported three (3) inmates who had been harassing him. As LaMarca was leaving the meeting he had arranged with prison offi¢:ials , the inmates who had been harassing him came to the bac t door of the canteen and told LaMarca, "We know you snitched, cracker." Despite LaMarca's report, the administration did nothing . Id.. Three (3) days later one of the inmates whom La 4arca had reported swung a bat at him. He told Lt. Barrett about the incident and Barrett responded by giving LaMarca a pocket
37
RE 091

knife. Id. At 2:30 a.m. one morning, the two aggressors wh!ora LaMarca
had reported retaliated by coming to LaMarca's bunk , carrying a bush axe, and demanding sex. Id· LaMarca re ponded by running to the wicket where the dorm officer was stationed, LaMarca sat outside of the wicket in his underwear all night, Id. The next morning LaMarca tried to bring a fiberglass sledgehammer onto the compound for protection he was immediately issued a disciplinary report. Id-
Finally, in 1981, LaMarca checked into protective confinement. He was housed with two other inmat s and was stripped of all privileges. When he complained to an officer about conditions in confinement, he was told to gopack to the compound. Id· He was given only two options a GCI: bad conditions in confinement or dangerous conditions in the compound.
2. LAMARCA'S DAMAGES This Court previously assessed LaMarca's ( amages at $9,000.00. There has been no additional evidence to suggest that this assessment is inaccurate. Therefore, theaward will be reinstated. E. THE INCIDENTS CAUSED THE PLAINTIFFS' DAMJ ;ES Each of the incidents in which the non-jury plaintiffs were injured were caused by Turner's deliberate iindifference to inmate safety at GCI.
38
RE 092

1. FAILURE TO TRANSFER WOLVES
First, Saunders was raped by a known "wolf " wh<om Turner
failed to separate from the inmate population. Three (3) months before Pryor raped Saunders he was classified as an inmate who "reflects a serious pattern of assaultive behavior." (Former P.Ex.26). Surely, the parole report was based on more than an isolated incident of violence by Pryor. Nevertheless, Pryor was permitted to remain on the main compound, where it was foreseeable that he would assault an inmate like Saunders.
2. STAFF CORRUPTION Not only was Pryor permitted to remain in general population despite the administration's knowledge that he was a "wolf," he assisted corrupt staff as an inmate-enforcer. At times, corrupt staff even directed Pryor to ha::ass other inmates. (Pryor Testimony, 1985). Turner's í ailure to supervise and discipline corrupt staff contributed to an environment at GCI where inmates like Pryor were used to control, by violence, inmates whom staff had ta rgeted for retribution. For example, when Turner's Chief Ccrrectional Officer, Lt. Barrett, was informed that Pryor wanted to attack Inmate Cobb, Barrett simply told Pryor to be sure to do it on Barrett's shift.19 Id. Pryor admitted that he felt that he
19
In fact, Pryor was never issued a disciplinary report for having stabbed Cobb. Id.
39
RE 093

could get away with anything (Pryor Testimony, 19 5 ) ; he had
acquired a degree of control over officers and iinmates that
encouraged him to continue threatening, beating and raping
inmates with impunity.
3. TURNERƒS FAILURE TO TRAIN. SUPERVISE. UP CONTROL STAFF AND TURNERƒS FAILURE TO PROVIDE FOR REPORTI1 ÍG OF RAPES AND ASSAULTS

All three (3) non-jury plaintiffs were denied protection

from correctional officers to whom they repor ted having

problems on the compound. Saunders reported his ape to Lt.

Pipta but his rape went officially unreported. Jo nson asked

Lt. Lawson for a change in dorm assignment after he was beaten in his dorm; Lawson denied his request. LaMarca r ported the three (3) inmates who tried to rape him; his re portss were

ignored.

If Turner had instituted a procedure for reporting of

assaults, and had disciplined officers who faile to report

inmate-on-inmate assault, the plaintiffs' rec uests for

protection would not have fallen on deaf ears

Proper

supervision, training, and control of staff over :he inmates

would have created an atmosphere in which office s were not

controlled by the aggressive inmates but in contro . of inmate

violence,

4. FREE FLOW OF CONTRABAND

As this Court has previously found, Turner's failure to

control contraband on the compound increased the isk to all

40

RE 094

..±.

inmates. Dr. Swanson testified that a prison witho¦ut control over alcohol and drug use increases the risk of inmate-oninmate rape and assault.
Turner's failure to control weapon possession led to an environment where inmates freely possessed weapons Larry Pryor threatened Saunders with a knife the day he extorted $5.OO/week and again on the day of the rape, Johnson was attacked by an inmate with a knife; LaMarca was threatened by an inmate armed with a baseball bat.~-÷-
5. FAILURE TO PATROL THE DORMS Both Saunders and Johnson were injured becau e officers failed to properly supervise inmate movement, Seunders was raped in a bathroom in the classification build .ng for 20 minutes to a half-an-hour. During that time no off .cer became concerned enough about the whereabouts of one new inmate and two known aggressors to discover the three of them in a bathroom. When Johnson was attacked on his way back from the gymnasium, two (2) guards stood eight (8) to ten (10) feet away and did not prevent the attack. Many of the threats that LaMarca endured wou d not have occurred had officers been patrolling LaMarca's dor†n LaMarca had to spend the night sitting next to the wicket n his dorm in order to assure himself that a guard would se¢ him if he were attacked. This very scenario which took plac at G.C.I, on that night over a decade ago was expressly iidentified by the Supreme Court in 1994 as a basis for liabilit; against a
41
RE 095

prison official. The court stated: If, for example, prison officials were aware that inmate rape was so common and uncontrolled that some potential victims dared not sleep [but] instead...would leave their beds and spend the night clinging to the bars nearest the guards station... it would obviously be irrelevant to liability that the officials could not guess beforehand precisely who would attack whom....
Farmer, 112 S. Ct. at 982. The record20 in this case with respect to the three non-jury Plaintiffs, sup orts the conclusion that the Defendant R.V. Turner is 1 iable for failing to protect them from the dangers of the unconstitutional conditions at GCI, which caused each damages. In the opinion of this court, it cannot be said that Defendant Turner acted reasonably to the risk which existed at G.C.I,
Regarding the amount of damages, the court has considered the additional fact that considerable time has pa sed since the original award was calculated, thereby warranting an upward modification. Saunders' previous award of $30,000 will be increased to $50,000; LaMarca's previous award of $9,000 will be increased to $25,000; Johnson's award will be increased both to compensate him for the'brain in ury which was not taken into consideration in the previous award and for the passage of time, from $13,000 to $40,000.
20
The term "record" refers to and includes a LI of the evidence presented and duly admitted by each part] at every stage of this proceeding, including the "new proffèr."
42
RE 096

r

c

IV. Is There a Present Need for Injunctive Rel.ief Under current law, Plaintiffs seeking injunctive relief

must plead that there is a contemporary violation of a nature likely to continue. Farmer, 114 S.Ct. 1983 (quotation

omitted). In order to avoid adverse judgment on a

for

injunctive relief, Plaintiffs "must come forward with evidence

from which it can be inferred that the Defendant-officials

were at the time suit was filed, and are at the time [final

1 judgment is sought], knowingly and unreasonably disregarding
an objectively intolerable risk of harm, and that they will continue to do so; and finally to establish eligibility for an

injunction, the inmate must demonstrate the continuance of

that disregard during the remainder of thel·itigatioi1 and into the future." Id., (emphasis added). Any litigant asking the

court to exercise its discretion as a court of equity bears the burden of showing that the intervention of equity is

required. Farmer, 114 S.Ct. 1984. If the court J:inds that

the Eighth Amendment's subjective and objective requirements

are satisfied, it may grant appropriate injunctiye relief.

Id. The Eleventh Circuit remanded this cause for Jretrial of
the various damage` claims and for this court to determine

whether there is an ongoing need for injunctive relief. Since

the remand, the Plaintiffs have had ample time and opportunity

to both conduct discovery and advise the court whether there

presently exists a specific need for injunctive relief. In

43

RE 097

December, 1994, the court granted Plaintiffs additional time to conduct discovery and ordered them to announce their position on injunctive relief on or before February 10, 1995. The court thereafter, gave the Plaintiffs additional time and as of the date of this order, the Plaintif::s have not identified even a single present condition which warrants the exercise of this court's discretion as a court of equity to issue further injunctive relief. While the Plaintiffs have asked for an evidentiary hearing on J,¤junctive relief, they have not plead or otherwise alleged any factually disputed issues regarding present conditions at GCI which would require adjudication by the court.21 Quite simply, Plaintiffs cannot maintain a claim for injunctive relief without pleading even a single present unconstitutional condition which establishes that a need for same presently exists at GCI. ,Accordingly, the court finds that the Plaintiffs have failed ':o establish that there presently exists an ongoing need for injunctive relief at GCI. Therefore, except as previously ordered and affirmed, the claim for injunctive relief shall be denied.
21
Plaintiffs have also requested the court to take a part in implementing the Eleventh Circuit's directive on the injunctive relief previously ordered. Howeyer, absent evidence of a factual dispute regarding the Defendant's failure to comply with the Eleventh Circuit's mandate on
injunctive relief which affirmed this court's previous order,
the court will not undertake a role in implementing the relief already granted.
44
RE 098

. .*• ' t

r
In view of all of the foregoing, it is
ORDERED and ADJUDGED that the clerk of the court is instructed to enter final judgment against the Def sndant and in favor of the non-jury Plaintiffs in the following amounts: Martin Saunders $50,000; Edwin Johnson $40,000 Anthony LaMarca $25,000; and in favor of the Defendant a:id against Plaintiffs Aldred, Bronson, Cobb, Durrance, and Harper, consistent with the jury verdict on these claims, ard to close this case and to declare any and all pending motions not specifically addressed herein DENIED as moot. Further, it is
ORDERED and ADJUDGED that Plaintiffs' request or further injunctive relief except as previously granted and affirmed by the Eleventh Circuit, is DENIED. Finally, it is
ORDERED and ADJUDGED that the prevailing parties shall submit Bills of Costs and Motions for Attorney¡i' Fees as appropriate, pursuant to Federal Rule of Civil Procedure 54(d)(1),(2)(B),(D) within 60 days of the issuance of a mandate from the Eleventh Circuit Court, of Appeals on any appeal which may be taken from this final judgment or within 60 days qf resolution of any post-trial motions, if no notice of appeal from this judgment is filed. This briefing schedule shall control in this case and failure to file a Bill of Costs or a Motion for Attorneys' Fees as appropriate prior to any
45

RE 099

> ,- r

r

r

appeal in this matter shall not constitute a wa ver of any right thereto previously preserved, notwithstanding the time limits contained in the Local Rules of this Court
DONE and ORDERED at West Palm Beach, Florid¦a, thiiss IS*
day of May, 1995.

cc: counsel of record

ates District Judge

46
RE 100

 
 LaMarca v. Turner

PC-FL-0007-0037
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

ANTHONY LAMARCA, MARTIN SAUNDERS, EDWIN JOHNSON, DAVID ALDRED, STEVE BRONSON, EDDIE COBB, RON
DURRANCE, and BILLY JOE HARPER,

Case No. 82-8196-Civ-Paine

Plaintiffs,
vs. R.V. TURNER, individually in his former capacity as Superintendent of Glades Correctional Institution, and GERALD ABDUL-WASI, in his official capacity as Superintendent of Glades Correctional Institution,

^ 111 UK mw·~·
FILED by
1 6 W95
CAR<-OS jL·¯f.·`£

Defendants.

FINAL JUDGMENT This action came on for trial before the Court, and a jury, the Honorable James C. Paine, District Judge, presiding, and the issues having been duly tried and heard and both a jury verdict and a court decision having been duly rendered, it is ORDERED and ADJUDGED that consistent with the court's decision., final judgment is hereby entered against the Defendant and in favor of the non-jury Plaintiffs as follows: Martin Saunders shall recover from the Defendant Turner the sum of $50,000 with interest thereon at the rate of 6.28 per cent as provided by law,; Edwin Johnson shall recover from the

RE nco

Defendant Turner the sum of $40,000 with interest thereon at the rate of 6.28 per cent as provided by law; Anthony LaMarca shall recover from the Defendant Turner the sum of $25,000 with interest thereon at the rate of 6.28 per cent as provided by law. Consistent with the jury verdict rendered, final Judgment is hereby entered in favor of the Defendant Turner and against Plaintiffs Aldred, Bronson, Cobb, Durrance, and Harper. These Plaintiffs shall take nothing from the Defendant and the action is dismissed on the merits. It is further
ORDERED and ADJUDGED that Plaintiffs' request for further injunctive relief except as previously granted and affirmed by the Eleventh Circuit, is DENIED. Final Judgment is hereby entered against the Plaintiff class and in favor of Defendant Gerald Abdul-Wasi on the injunctive relief claim. Finally, consistent with this court's order, it is
ORDERED and ADJUDGED that the prevailing parties shall submit Bills of Costs and Motions for Attorneys' Fees as appropriate, pursuant to Federal Rule of Civil Procedure 54(d)(l),(2)(B),(D) within 60 days of the issuance of a mandate from the Eleventh Circuit Court of Appeals on any appeal which may be taken from this final judgment, or within 60 days of resolution of any post-trial motions, if no notice of appeal from this judgment is filed. This briefing schedule shall control in this case and failure to file a Bill of Costs or a Motion for Attorneys' Fees as appropriate prior to any

appeal in this matter shall not constitute a waiver of any right thereto previously preserved, notwithstanding the time limits contained in the Local Rules of this Court.

Dated at West Palm Beach, Florida, this ƒ¿ day of May,
1995.
CARLOS JUENKE Clerk of Court

Copies furnished to: counsel of record

Svava Ringheim^yDeputy Clerk

RE

 
 PC-FL-0007-0039
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Case No. 90-5909
ANTHONY LAMARCA, et al., Appellees/Plaintiffs, - VS R. V. TURNER, et al., Appellants/Defendants.
Appeal from the United States District Court for the Southern District of Florida

RECORD EXCERPTS

MICHAEL B. DAVIS

ROBERT A. BUTTERWORTH Attorney General

Davis, Carroll, Colbath & Isaacs Suite 1010 1655 Palm Beach Lakes Boulevard West Palm Beach, FL 33401 (407)478-2400

WALTER M. MEGINNISS Assistant Attorney General Department of Legal Affairs The Capitol - Room 907 Tallahassee, FL 32399-1050 (904)922-6316

COUNSEL FOR APPELLANTS

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Anthony LaMarca, et al., v. R. V. Turner, et al.
USCA 11th Circuit No. 90- 5909

RECORD EXCERPTS

1.

Docket Sheet

11-20-87

2.

Third Amended Complaint

11-15-85

3.

Appeal from Magistrate's Order and

Petition for Emergency Hearing

11-27/85

4.

Order (denying motions for continuance

and jury trial by Magistrate)

11-25-85

5.

Answer to Plaintiff's Third A mended

Complaint, by Defendants R. V. Turner

and Randall Music

11-29-85

6.

Order (affirming Magistrate's Order

of 11-25-85)

12-2-85

7

Report and Recommendation

1-8-86

8.

Partial Final Judgment

6-4-87

9.

Order Affirming Report and

Recommendation of Magistrate Nimkoff

6-4-87

10. Order (denying Motion for New Trial)

6-4-87

11. Findings of Fact and Conclusions of Law 4-29-90

12. Final Judgment
13. Order Denying New Trial and Granting Attorneys' Fees

4-30-90 10-8-90

SCI I

•2 CIV-JCP
PLAINTIFFS

82 I 3 I 550

rANTHONY ‰aMARCA # 0 7 1 5 8 8 »
SAUNDERS, MARTIN
,3OHNSON, EDWIN
,ALDRED, DAVID BRONSON, STEVE H. ,COBB, EDDIE ,DURRANCE, RON EPPRECHT. WAYNE GORDON, MICHAEL HARPER, BILLY JOE

1 i* i A 12043 DEFENDANTS
B-3
12.LAMBDIN, CHESTER
9

CIVIL RIGHTS 42 USC 1983

CAUSE
(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)
A l l e g e s he was threatened .w/physical v i o l e n c e & a s s a u l t e d by inmates and t h e administration was aware of the problems.

PROPER PERSON 500 Orange Circle Ave. A-88 Belle Glade, Fl. 33430
DAVID MICHAEL LIPMAN, ESQ. Suite 304 5901 S.W. 74th Street Miami, Florida 33143 (305) 662-2600
WILLIAM ROBERT AMLONG, ESQ. 101 N.E. Third Avenue, 2nd Fl. ½j;t Lauderdale, Florida 33301 (305) 462-1983

ATTORNEYS

WALTER M. Mtginniss, Asst. Atty.General
KELLY OVERSTREET JOHNSON, ASST ATTY GE Ðept of Legal Affairs The-Capitol, Suite 1501 Tallahassee, Florida 32301 (904) 488-1573
MICHAEL B. DAVIS Davis, Critton, Hoy & Dia¯nond P.O. Box 3797 West Palm Beach. F l . 33402 Tel: 478-2400

W/drw counsel as to Henry Rosenbaum b/¿0/85

c/o Attorney:
Steven E. Hartz, Esq. 2600 S.W. 3rd Avenue Suite 700 Miami, Florida 33129 (858-5711)

ioívCHECK - Ì 3 HERE F CASE WAS •=ILOERDI/AIN
•> A i I C C « 3 I C

DATE 1

(CONT·D) FILING FEES PAID
RECEIPT NUMBER

- "–

•

••

••

CD. NUMBER

i¯ *

* L CArlCS

CAt-

. t ¾82
JS '. * ¯ '
JSÍ v if 7o

inn

LAINTIFF
LAMARCA, ANTHONY

DATE

NR.

CIVIL. DOCKET CONTINUATION •HECT DEFENDANT
R . V . TURNER
PROCEEDINGS
ATTORNEY CONTINUATION

JAMES A. TUCKER
Florida Rural Legal SErvices, Inc. 2209 Euclid Ave Ft. Meyers, FL 33901 813/ 334-4554

in ii>-> i« t t

tt.

PACE OF

PAGCS

OAT! 1QR? May 14 June 15 Aug. 6
17 15
Nov. 15
Apr 07 July 18
Oct 06
21
31 12

MOCIEDINGS

X-Card

COMPLAINT. V/Forma Pauperis Affidavit att. (Cy. mid. U.S.Atty., - Miami)
NOTICE of Transfer (PJK) Case transferred to Mag. Niakoff for further
proceedings. (E0D-6/22/82-CCAP)
ORDER (P‰K) APPROVING forma pauperis 6 directing service of process. (EOD-8/16/82-CCA>
SUMMONS Issued as to R. V. Turner, Supt, Glades Correctional Facility. Copy to file.
RETD. Summons exec. 8/25/82 ast o R.V. Turner RETURN of Document to Joseph Belitzky, Esq., Motion to Dismiss
or in alternative for summary judgment RETURN to Order to Show Cause by deft. R.V. Turner MOTION to Dismiss or in the alternative for a summary judgment MEMO of law in support of deftå motion to dismiss or for summary
judgment MOTION for ext of time for pltf to file reply to Order to Show cause.
NR REPLY on return to order to show cause, by pltf.

MOTION for summary judgment, by pltf.

RESPONSE to motion for S/J, by deft. REPLY to resp to M/SJ, by pltf. LETTER to Judge Nincoff, from pltf dated ?? WRIT OF HABEAS CORPUS AD TESTIFICANDUM( PLN 7/18/83) as to
LA MARCA, to Dist Ct.(EOD 7/21/83 CCAP) STATUS ocnf set for 8/25/83, in Miami.

ANTHONY

RETURN (PARTIAL) on writ/habeas ad/testificandum, exec 8/25/83, as to ANTHONY LAMARCA transp to DADE CORRECTIONAL INST.
NOTICE of hearing on 9/19/83 @ 10:00 a.m. @ Courtroom V U.S. Dist.
Ct·, @ Miami, Florida before Magistrate Peter Nimkoff

WRIT of Habeas Corpus Ad Testificandum, Anthony LaMarca, material witness, to be brought before U.S. Dist. Court, Miami, on 9/19/83 @ 10:00 a.m. to give testimony at an evidentiary hearing. (9/2/83-PLN)
NOTICE cancelling evid/hrg scheduled on 9/19/83.
NOTICE of appr & sub of counsel fmr defts.

AMENDED COMPLT, by pltfs.

MOTION for permission to communicate w/potiential classmembers, by pltfs.

PARTIAL RETURN of writ of habeas, by US Marah on 9/19/83.

MOTION for enlgmt of time to resp to amend/complt, by defts .(GRANTED JCP 10/24/8

NOTICE of tkg dep of ANTHONY LA MARCA, HOMESTEAD, FL FCI.

NOTICE of tkg dep of MARTIN SAUNDERS, GLADES CI, BELLE GLADES, FL.

NOTICE of tkg dep of EDWIN JOHNSON, GLADES CI, BELLE GLADES, FL.

NOTICE of tkg dep of HENRY ROSENBAUM, AVON PARK CO.

NOTIOB for leave to tke deps.

MOTION for class certification, by pltfs.

MEMO in supp of above motion, by pltfs

AMENDED notice of tkg dep of ANTHONY LA MARCA.

AMENDED notice of tkg dep of EDWIN JOH1SON & MARTIN SANDERS.

AMENDED notice of tkg dep of HENRY ROSENBAUM.

ORDER(PLN 10/21/83) ordering that pltfa & counsel shall be permitted

to communicate w/potential & or actual clas members. (EOD 10/28/83 CCAP)

JOINT motion for leave to tke dep of inmates, w/memo, by all ptys.

MOTION for leave to tk·fe depos, by defts.

MOTION for enlgmt of time to file reply, by defts.

C^O

I/IS)

CIVIL DOCKET CONTINUATION SHEET

gÇATC

NR.

PROCEEDINGS

V 02 03
23 23 : 16 l98_4 an. IB
or 13

ANSWER by defts(AL‰)

ORDERtHH 11/2/83) permitting deps of persons confined in prison.(EOD

11/8/83 CCAP)

AMENDED notice of tkg dep of ANTHONY LA MARCIA.

r<

ANSWER to affirm defenses, by pltfs.

r

RESPONSE to motion for class cert, by TURNER,WAINWRIGHT.

r

REPORT & Recommendation (1/16/84-PLN) Cause be certified as a class

Action on behalf of all who are, have been or will be incarcerated in

the Glades Correctional Institution in Belle Glade, Fla.

BE

ORDER(JCP 4/13/84) declaring the folowing ¿ declared to be a cert/class for the purposes of the injet relief sought in the instant carpIt, former inmates no longer so incarcerated should not be members of the class seeking injc relief.(ECO 4/16/84 CCAP)

30 une
ug 13 ep 04
25 Oct 15
15

NOTICE(PLN 4/30/84) setting status conf @ 11:00 AM in MIAMI on 6/8/84 tefore Maq Nimkoff.
ORDER AT STATUS CONFRENCE(PL·N 6/8/84)there appears to be no present pr/tr disput the ptys to notify the ct before 8/8/84 what they jointly or severally believe to be the current pr/tr status of the case.(EOD 6/19/84 CCAP)
NOTICE setting cause for 2/status conf on 9/4/84 10:00 AM, before Mag/Nimkoff.(EOD 8/15/84 CCAP)
NOTICE of status conf set f o r 9:30 AM i n Miami, before Mag Nimkoff on 9/21/84.
ORDER(PLN 9/25/84) directing both counsel advise ct re:recusal. (EOD 10/1/84 CCAP)
STATUS REPT, by pltfs. NOTICE of appr o† counsel bor p l t f s .

Dec 18 1985
May 30 30
JULY 1 11
15

STIPULATION & ORDER(JCP 12/18/84) approving s t i p & the terms of s t i p

are incorporated into a protective order, (EOD 12/21/84 CCAP)

rd

MOTION for Iv to w/drw as counsel for Henry Rosenbaum.W/drw counsel David M. Lipman & Karen Coolman Amlong.

SECOND status rpt by pltfs1.

,

ORDER( JCP-6-29-85) Granting mot. to w/draw of attys David Lipmand & Laren

amlong. (EOD-7-11-85) CCAP

j

PRETRIAL ORDER(JCP-7/8/85) Requiring meeting of couns & pre/trl/stip to

be filed 10/8/85. Cal call 10/11/85 at 9:00A.M. in W.P.B.,Fl. Trl to be

set before Jdg. Paine on 10/21/85 at 9:30A.M. Place to be announced/

(E0D-7/15/85CCAP).

!

MOTION to proceed IFP, by petitioner.

JC1I1A PLAINTIFF
DATE
July 15
Aug 26 26 26
¡Sept 4
06 18 23 *9/20/85| 23 Oct 01

POCKET CONTINUATION SHEET DEFENDANT

I';. '

DOCKET NO. PAGE 3 QF

.PAGE:

ORDER (PLM-7/15/85) Notice of trl to be set before Mag w/out jury on 11/04/85 at 9:30 A.M. in crtrm V, Miami, Fla. Granting Mr. Upman's mot for lv to w/drw as couns to Henry Rosenbaum. Deferring Rosenbaum's mot for apptmt of subst couns. His elm is servered from pltf class & is ABATED. Pre/trl stip to be filed by 10/28/85. No sep pre/trl conf will be conducted unless couns not crt bef 10/28/85.(E0D-7/25/85 CCAP).

MOTION for leave to file sec amend complt, by ptlfs. MEMO in supp of above. NOTICE of appr of WILLIAM R AMLONG as co counsel for pltfs.
NOTICE Of app & subst of couns, Walter M. Meginniss apps as couns for defts in subst for Deborah J. Stephens & Kelly Overstreet JOhnson bt W.M.Meginniss.

MOTION for enlgmta o fimt to resp to mot to file sec amend complt, by defts.

MEMORANDUM of law in opp to pltfs' mot for lv to file 2nd amend cmplt,

by defts. REPLY memo of law in suppt of pltfs' mot for lv to file 2nd amend cmplt.

ORDER (PLN-9/19/85) Granting pltfs1 mot for lv to file 2nd amend cmplt. & 2nd amend cnplt be filed nunc pro tune 8/26/85. Defts shall ans forthwith. (EOD-9/26/85CCAP). NOTICE of app as add couns for defts. The law firm of Davis, Critton,

enters its MOTION to shorten time for discre;

. V¢>L

RESPONSE to mot for enlgmt of tim & continuance, by pltfs.
MOTION for enlgmt & t¾ntuance ¯... resp to 2-.:ia>.nd cc*olt by defts MEMORANDUM in suppt of defts' mot for more def stmt. öý pltlž. MOTION of defts for more def stmt by defts. MOTION to decertify class by Asst Atty Genrl. NOTICE of w/drawal of mot to decertify class
ORDER (PLN-10/1/85) Directing that on 7/15/85 Mr. Rosenbaum's elm was severed & abated, no act will be tkn by crt until after trl of class-elm. (EOD-10/23/85CCAP).
RESPONSE to defts' mot for more definite statement, by Pltf.
ORDER(JAGPLN10/15/85) Trial is cont to a special setting on 12/2/85 @9:3O before Judge Nimkoff (EOD10/28/85)
PETITION for Habeas Corpus Ad Testificandum, pltfs. CERTIFICATE of service. DEMAND for jury trial, by defts. NOTICE of taking depo of David Aldred on 11/13/85.
AMENDED notice of taking depo of: Eddie Cobb, Billy Joe Harper & James Kinner on 11/8/85. NOTICE of taking depo of Larry Pryor on 11/13/85. AMENDED notice of taking depo of David Alfred. NOTICE of taking depo of Wayne Epprecht. NOTICE of taking depo of Steve H. Bronson.
of taking depo of Ron Durrance.

I/T»)
.AINTIFF
rmoNY LAMARCA. e t a l
DATE NR.

CIVIL DOCKET CONTINUATION •HEET
DEFENDANT
R.V. TURNER, etc. et al
PROCEEDINGS

DOCKET NO.
A_OF_

PAGCS

82-8196-CIV-JCP

)v 13 15 15
14 15 21
21
21 * 14
21
22 25
25 27 * 25
27 29 29

MOTION to cont, by defts R.V. Turner L· Randall Music. (NR )

EXPERT witness reports, by P l t f s .

MOTION t o amend complt in providing for a 3rd amended

complt, by Pltfs.w/3rd amended complt attached.

NOTICE of tkg dep of Michael Gordon on 11/15/85, by d e f t .

dc

NOTICE of Bubpeona for documents w/o dep, by P l t f s .

d¤:

AMENDED Notice of tkg dep of Michael Gordon on 11/15/85,

by d e f t s .

dr.

MEMO of points & auth in supp of opp t o demand for jury

t r i a l , by P l t f s . RESPONSE in opp to M/to continue, by P l t f s . NOTICE of pending motions on 11/21/85 at 3:00 P.M. ORDER(JCP-11/21/85) granting p l t f s petition for Habeas Corpus Ad -
Testificandum. (EOD 11/27/85, CCAP) NOTICE of subp for documents w/o depd issued to John B. Dunkle, by p l t f s MOTION to strike allegations of p l t f s second amended aomplaint, by defts.

(NR )

AMENDMENT to mot of defts for cont, by defts.

APPEAL from Mag's order & petition for emergency hearing.

ORDER(PLN-11/25/85) granting nunc pro tune 11/14/85, p l t f s mot to file

third amended complaint; court makes no present ruling regarding

recoverability of attorney's fees or presence of State of Florida

as deft for that purpose; denying deft's jury demand; denying deft's

mot for further cont of trial; reserves ruling on deft's mot to strike.

(EOD 12/6/85, CCAP)

UNILATERAL Pre- Trial stipulation, by pltf.

ANSWER to pltf third amended complaint, by defts R.V. Turner & Randall Music.

MOTION for an order to direct the State Court to release sealed records

to this court for an in camera review, by pltf. (NR )

sc

RESPONSE to deft's appeal from Mag's order & petition for emergency hearing,

by pltf.

SUPPLEMENTAL pre trial stip, by pltfs.

NOTICE of filing report of expert witness Alan M. Wagshul, M.D. by pltfs.

ORDER(JCP-12/2/85) denying defts Turner, Music & State of Florida's Ar:··.il

from Mag's Order & Petition for Emergency Hearing. (EOD 12/12/85,CCA; )

ORDER(PLN-12/4/85) amending & modifying the Court's previous Order of

11/21/85 to the extent that the Court directs that inmate Larry Pry.r be

transported to & held at the Dade Correctional Institution (D.C.I. ) m

Dade County, FL; directing officials of D.C.I, to transport Larry P:y`r. &

supervise his custody;'permitting plffs¯ counsel to confer with L·:::>·

Pryor at D.C.I, during his incarceration. (EOD 12/13/85,CCAP)

u

7

CJA 21 Voucher No. 953055 (PLN-12/6/85) appointing Steven E.M. Hart2, ì ;. as

counsel for Larry Pryor.

* 2

ORDER (PLN-12/2/85) directing deft through Dept of Correction to tra·`.·;· rt

inmates who are either pltfs or witnesses by 9:00 A.M. on ll/28/>¯ • ,

Dade County Jail in Miami, FL; Dade County Jail shall then tranr;· :• these

inmates to U.S. District Court at Miami to be avalible for trial • · T»-r»cinç

12/2/85 at 12:30 P.M. in Courtroom 8 of the New Courthouse; trar-.· '• r 'hall

be made by 12:30 P.M., 12/2/85. (EOD 12/20/85.CCAP)

11

× UlA
«·v.
PLAINTIFF

CIVIL DOCKET CONTINUATION SHECT DEFENDANT

r»»-·« -i l· »» •»« r*
DOCKET NO. PAGE _5_OF_ PACE

1QRS
Dec 10 _IO 16
Dec. 20 Dec. 27 Il986

TRANSCRIPT of Hearing dated 12/3/85 Pgs. 93-173.

' Hearing dated 12/3/85. « ~ "*-'«

_

12/27/85

VOL. Q
minutes to a side)

MMiiaammii,, CCoouurrttrroooamn VV..

ORDER (PLN 12/12/85) granting M/ to Direct State Court to Release Records

to this Court in Camera (EOD 12/27/85 CCAP)

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by defts. táWà ``) t)L

Proposed Findings of Fact and Conclusions of Law by plaintiffs^ °

cct

MOTION for Hearing on compliance with injunctive Order by Larry Pryor

cct

MOTION TO EXCLUDE DEPO EVID. OF DEFT AND MEMO by pltfs.

ct

CERTI. OF SERV. of M/E×clude by pltfs

ct

MOTION FOR SUBSTI. OF PARTY DEFT and MEMO by pltfs

ct

| Dec 20 20
1986 I Jan 8
14

NOTICE of filing supplemental material, by pltf. CJA 20 (PLN 12/19/85) Appointment and authority to pay c r t appt'd c s l in the
amount of 153.75, voucher no. 953055.

REPORT (PLN 1/8/86 ) and recommendation. Pltf shall be compensated for injur:

P l t f s are entitled t r oan award of fees and award of a t t y fees and

l i t i g a t i o n expenses reimbursement. Pltfs shall f i l e w/in 20 days

fee/expense submissions and accompanying memo as to t h i s issue. Deft í

respond w/in 20 days from p l t f s filing. See orginal R & R for furthei

information.

ORDER .(PLN 1/10/86) Chester Lambdin is subst as a pty deft in the stead of Rar

Music. Deft Lambdin i s solely in his official capacity for purposes

of injunctive and orther equitalbe relief. (EOD 1/27/86-ccap).

ORDER (PLN 1/10/86) GRANTING p l t f s m/ for exclude depo evidence of defts and

being apprised of i t s permises. This crt recommends that the depo's of

the seven deponents taken at the initiative of defts on 12/17/85 should

be exculded from consideration in this lawsuit. (EOD 1/27/86-ccap).

ORDER (PLN 1/10/86) GRANTING p l t f s m/ to file a third amended ccmplt, Keith \

previously indicated as a named ptys pltf in this action, i s expressly

w/drawn as a l i g i t a n t to t h i s action. (EOD 1/27/86-ccap).

MOTION to cont hearing and to issue writ of habeas corpus and testificandum,

\<\çry Pryor.

;

fcrfj

q y ¿) ¿_ ¾

17 17 *** 12

j.36) Q38

MOTION for enlargement of time, by defts. NR 151

5¿¾ \foL· H`

PETITION for hearing on appeal of Mag's order under ruel 4(a), by defts. RESPONSE to movant, Larry Pryor1 s m/ to cont hearing and t o issure writ of

habeas corpus ad testificanduro, by pltf.

RESPONSE to defts' m/ for enlargement of time, by p l t f .

CERTIFICATE of service, by p l t f .

NOTICE of hearing on compliance w/ injunctive order set for 1/16/86.

30
31 ¾4¾
31 Ç¿,4jJ
31 ¿42j
31

`.af. ílïingv.of>ïÄrr/ Rryor^ in :sup¯ö¢jm¢»t (f©r3Îfc¾¾ng.ion rcoKpAinju order

MEMDin support of p l t f s ' m o t for f ^ J * EXHIBITS filed for pltf an support of mot

«-·

UA . 1 '7S)
'LAINTIFF

ANTHONY LaMARCA

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R . V . TURNER
PROCEEDINGS

rn—«««—I·U.7·.·OÜ
DOCKET NCR2-RIQfi-r`[v PAGE 6 OF ^P?Í~.FQ

31
b 11 (¿s)
10
19

RESPONSE t o d e f t ' s petition for hrg on appeal of Mag. Order under

Rule 4(a), by p l t f

pb

RESPONSE t o d e f t ' s M/for a d d t ' l enlargement of time to resp t o

ren+· & necarm of Mao.. bv pltf-

pb

RESPONSE t o d e f t ' s M/for enlargement of time t o resp t o p l t f s M/for

fees & litigation expenses., by p l t f .

pb

NOMINATION of conmittee member required by rept & recam\, by p l f t .

pb

REPLY to p l t f s response t o p e t "for Hearing¯.on Appeal,'.by :deft.^V > >

cf

MOTION for Enlargement of time to respond t o p l t f s mot f o r fees & L i t

expences. NR

cf

MOTION for addl enlargement of time t o respond to report & reconmendation

of U.S. mag. NR 156

cf

ORDER(JCP 2-17-86) granting mot for enlargement of timeto defts(EOD 2-25-86)cf

MOTION f o r a d d 1 1 e n l a r g e n e n t of t i m e t o r e s p o n d t o R e p o r t &

recommendation of U.S.Mag.NR

.

cf

RESPONSE t o Mag's r e p o r t & recommendation by d e f t s e t a l .

cf

NOTICE of f i l i n g a d d ' l portions of t r a n s c r i p t s , by d e f t s .

cf

AMENDED RESPONSE of d e f t s , including objections to Mag's

Report & Recommendation, by d e f t s .

ORDER(JCP3-18-86)GRANTING· mot for a d d ' l enlargement of time

t i l 3-17-86, to resp to rep9ort &'recommendation of Ma

TRANSCRIPT of hrq before Mag. NimkoffP 11-25-85 in Miami TRANSCRIPT of hrq before Judge Nimkoff, 12-2-85, Miami. VOL. H e :

TRANSCRIPT of t r i a l proceedings, 12-11-85, Miami

\ÍOL

18

TRANSCRIPT of afternoon session of t r proceedings, 12-11-85 -Vø¿.

18

TRANSCRIPT of tr proceedings, 12-12-85, Miami.

18

TRANSCRIPT of p r o c e e d i n g s , 1 2 - 1 2 - 8 5 , Miami.

VOL.

¯Ï8¯

TRANSCRIPT of p r o c e d d i n g s , 1 2 - 1 3 - 8 5 , Miami.

\IQL

TB¯

TRANSCRIPT of afternoon proceedings, NOTICE of f i l i n g of t r a n s c of h r g on

12-13-85, 11-25-85,

Miami. by def t s

N °¿· ^*VL·co1*7c¯c_f

MOTION f o r e n l a r g e m e n t o f t i m e & s u p p o r t i n g Memo, b y p l t f s .

c

ORDER(JCP4-15-68)GRANTING p l t f s mot f o r enlargement of tíme¯¯thru 4-29-86.

(EOD4-22-86)

.

c

MOTION for enlargement of time & sup Memo, by p l t f s .

cf

ORDER(JCP4-28-86) GRANTING mot forenlgmnt of time, by p l t f s , p l t f s have t i l

5-29-86 t o f i l e response t o defts exception to recorrmendations of Mag..

(EOD5-8-86-CCAP)

cf

MOTION for leave to f i l e 2 days l a t e t h e i r reply Memo to defts response &

Objection to Mags report, by p l t f s . NR_I7_2

cf

ORDER & WRIT OF HABEAS CORPUS AD TERSTIFCANDUM( JCP5-30-86)GRANTING mot t o

cont hrg, Hrg on Compliance s e t for 6-24-86 @ 1 PM, Louie Wainwright t o

d e l Larry Pryor t o Marshal 6-24-86.(EOD6-3-86-CCAP)

cf

ORDER(JCP6-6-86)GRANTING p l t f s mot f o r leave t o f i l e 2 days l a t e , t h e i r

reply memo to defts response & obj t o Mag's report^íEOD6-10-86-CCAP)

cf

MEMO RE: The Binding of non-parties by Court I n } , order ¾T as t o

Larry Pryor.

•'

lg

DC U1A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

'I-MA« 2 ll.7i.»O
DOCKET NO. PAGE _Z_OF_ . P A

DATE

NR.

PROCEEDINGS

1986
JUNE 26 27
*12-6-85 Oct 14
¯T4¯
¯TTTT
TT ¯TT¾T¯
14
—r¼¯
14 14 14 14 14 14 Nov 18
20 28
1987

RETURN of svc on order & writ of H/C ad testificandum exec, on 6/24/86

OPDER (JCP 6/25/86) denying relief requested by witness Larry Pryor r

(EOD 7/9/86 CCAP)

L·v\¿

HbL

:; TRANSCRIPT of hrq before Judge Nimkoff on 12-4-85., pqs 338-433 \JûL· \9

TRANSCRIPT of proceedings before Judge Nimkoff on 12-4-85, pgs 435-606. \C

TRANSCRIPT of proceedings before Judge Nimkoff on 12-5-85,pgs 608-705A. ¾

7af¯¯¯ TRANSCRIPT'of proceedings before Judge Nimkoff on 12-5-85, pgs 706-878.

TRANSCRIPT of hrg before Judge Nimkoff on 12-6-85, pgs 879-1000. \ƒ

TRANSCRIPT of hrg before Judge Nimkoff on 12-9-85, pqs 1001-1109

TRANSCRIPT of hrq before Judqe Nimkoff on 12-10-85. pqs 1234-1324. \

TRANSCRIPT of hrg beofre Judqe Nimkoff on 12-10-85, pqs 1110-1233. `4ÔL·

TRANSCRIPT of testimony of David Brierton before Judge Nimkoff on

17-17.-B5. nas 1-6B.

TRANSCRIPT of proceedings before Judqe Nimkoff on 12-12-85. pqs 71-121. t

TRANSCRIPT of depo of Angelo Palmer before R. Woünsky on 12-17-85, ¾CQ >

pgs 1-8.

*£

TRANSCRIPT of depo of Alvin Strachan on 12-17-85, pgs 1-17.

TRANSCRIPT of depo of William Deese on 12-17-85, pgs 1-12.

TRANSCRIPT of depo of David Wing on 12-17-85, pgs 1-13.

TRANSCRIPT of depo of Alvin Greenwood on 12-17-85, pgs 1-17.

TRANSCRIPT of depo of Thomas Vaughn on 12-17-85, pgs 1-23.

TRANSCRIPT of depo of Emilio Martinez on 12-17-85, pgs 1-24.

SUPPLEMENTL a u t h i n s u p p t of o u r r e p l y memo t o d e f t s ' resp & obj to Mag's r p t by p l t f s ' .
NOTICE of s u p p l Author by d e f t s . RESPONSE to p l t f s analysis of supplemental authority, by Asst. Attny Gen.

Feb 2 May 11
11 June 4
15 16 16 18 18 18

AFFIDAVIT of indiqencv from DA\ TRANSCRIPT of hrq before Judqe Nimkoff on 12-2-85, pqs 1-92. TRANSCRIPT of hrq before Judqe Nimkoff on 12-3-85, pgs 264-337. JQL·

PARTIAL F/J(CLK 6-4-87)ENTERED for PLTF (See file for details)Case remains open as to further injunctive relief, atty fees & expenses.(EOD6-8~87CCAP)

ORDER(JCP6-4-87)AFFIRMING R&R of Mag PLN (DE #128)See file for details.

ÍE¤DS-10-S7-CCAP)

MOTION for new trl & to amend findings, by defts Turner & Lambdin. NR¿õ

MOTION for enlargement of time to file add'l grounds for post judgment

relief, by defts.

NR2O.

ORDER(JCP 6-18-87)GRANTING defts mot for enlargement of tÌjne.(EOD6-23-87-

CCAP)

NOMINATIONS to committees & request for enlargement of time for caTpletion

of nominations, by defts.

NR

SUPPLEMENTAL MOTION in suppt of mot .for award of atty fees & expenses &

Memo in suppt, by pltfs.

NR

EXHIBITS in suppt of suppl mot & Memo in suppt of mot for atty í···`s &

expenses, by ptlfs.

AINTIFF
tMARCA, ANTHONY

SATE

NR.

CIVII. DOCKET CONTINUATION • H E E T OCFtNDANT
TURNER. R.V.
PROCEEDINGS

82-8196-CV-JCP
DOCKET NO -
PACES

MOTION & Memo for enlargement of time for response t o not & suppl not for

a t t y fees, by defts Turner & Lambdin.

N¾?i¿fcf

SUPPLEMENTAL MOTION for new t r l & re-hrg w/Memo, by d e f t s .

NOTICE of subp f o r documts w / o u t d e p by David M. Lipman, E s q . bs

29 y 2 (213
6
7 gl5
7 7
9 ?2I8
10
21 11
21

SUPPLEMENT t o n o m i n a t i o n t o c o m m i t t e e by W a l t e r M. M e g i n n i s s ,

Asst Atty Genrl.

bs

ORDER ( J C P - 6 / 2 5 / 8 7 ) G r a n t i n g d e f t s ' mot f o r an e l g m t of t i m e i n

which t o f i l e c u r r i c u l u m v i t a e of D r . Edward A. H e r r e r a .

(EOD-6/30/87CCAP).

bs

ORDER ( J C P - 6 / 2 9 / 8 7 ) G r a n t i n g R.V. T u r n e r & C h e s t e r L a m b d i n ' s

mot f o r enlgmt of time f o r r e s p t o mot & s u p p l e m t l mot f o r

a t t y ' s f e e s . (EOD-6/30/87CCAP). .

bs

NOMINATIONS t o Ccmnittees, by p l t f .

cf

RENEWED MOTION for appt of c s l & Notice of chg of add, by co-pltf Rosenbalxn. WRÜ

RESPONSE t o defts mot for new t r l , by p l t f .

NR^[ cf

RESPONSE t o p l t f s mot for a t t y fees, by d e f t s . MOTION & Memo for ext t o f i l e suppt'g a f f i d a v i t s , by d e f t s .

cf NR 22lcf

MOTION for evidentiary hrg & Memo of Law, by p t l f .

NR 228cf

SECOND SUPPLEMENTAL MOTION for a t t y & Litigation fees & Memo of Law in

îuppt, by p t l f .

NR¿2/cf

MOTION for leaVe t o f i l e reply Memo upon receipt of suppl submissions of

defts, by p t l f s .

NR222 c f

ORDER(JCP 7-17-87)DENYIN, as moot, defts mot for ext to f i l e suppt'g affidavits.

(EOD7-17-87-CCAP)

cf

ORDER(JCP7-17-87)DENYING, as Moot, p l t f s mot t o f i l e Reply Memo. (EOD7-17-87-

CCAP)

cf

RESPONSE t o p l t f s 2nd amended mot f o r f e e s , b y d e f t s .

cf

MOTION for ext of time to reply to d e f t s response to p l t f s amended mot for fees, by p t l f s .
ORDER(JCP 8-6-87)GRANTING p l t f s mot for ext of time: P l t f s 20 days, t i l 8-20-87, to f i l e reply.(EOD8-10-87-CCAP)

2nd NR225 cf have
cf¦

REPLY to defts response to p l t f s second amended mot for f e e s ,

by p t l f s .

cf

CERTIFICATE of s e r v i c e , by p l t f s .

cf

ORDER(JCP 9-11-87)GRANTING p t l f s mot for Evidentiary hrg, now set

for 10-9-87 @ 1 PM.(EOD9-14-87-CCAP)

cf

AFFIDAVIT of Indigency, by David Aldred·

cf

ORDER(JCP 9-17-87)DENYING p t l f s request for copies, p l t f to contact

c s l for information he d e i s r e s . (EOD9-18-87-CCAP)

cf

ORDER(JCP 9-19-87)DENYING p t l f s mot for appt of csl.(EOD9-22-87-

CCAP)

cf

•JC HI* t·»tw. 1 75)
PLAINTIFF
DATE NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO.

Oct
*l )/13/87 19
23 26 Nov 12 *Oct 19 Nov 18 ' O c t . 23 Nov 24 1988 June"28 `Jov 17 1989 Jan 30 Mar 20

ORDER(JCP 9-19-87)DENYING defts mot for New trl/Amend Findings VACATING portion of ord entered 6-4-87 which directs St. of to bear cost of committees: ORDERING costs of committee to t born by Supt Chester Lambdin.(EOD9-22-87-CCAP)

NOTICE OF APPEAL filed by defts Turner & Lambdin from Partial F/Jdgmt & Ord on R&R entered 6-4-87 & Ord entered 9-19-87. (Fee Pd)
NOA transmitted to USCA, copies to all interested parties.

THIRD SUPPLEMENTAL MOTION for award of atty fees & expenses, t

ptlfs.

Nî¾

MEMORANDUM of Law in suppt of 3rd suppl mot for atty fees, by pltfs.
ORDER(JCP 10-8-87)On ptlfs various mots for atty & litigation fees. (See file for details) (EOD10-13-87-CCAP)

MOTION & Memo for leave to file transcripts, by deft.

NR^

LETTER from USCA dtd 10-7-87 acknowledging receipt of NOA, CA 87-5878.

ORDER (JCP-10/14/87) Granting defts mot for lv to file transcs.

(EOD-10/19/87CCAP). NOTICE of filing transcripts of: Record of Proceedings of 10-8-
Depo of Glenn Caddy on 12-4-85, & depo of Richard Swanson on ll-.29-85, by defts. MEMORANDUM of Law on Litigation Expense by defts

MEMORANDUM of Law on Disputed Litigated Expenses by p l t f s LETTER from USCA d t d 11/10/87 r e q u e s t i n g ROA.

TRANSCRIPT of proceedings before Mag Nimkoff on 10-8-85,

pgs 1-46.

£jçrr„. !AI s

ROA sent to USCA consisting of 5 vols pldgs & 23 vox s tranšcr

RESPONSE to deft's. mot. for enlgmnt. of time & cont.. by pltf

LETTER from USCA ret'g Vols 24 & 25 of ROA as they are duplica which are incorporated into main vols of transcripts

NOTICE of Vol d i s m ' l , by Henry Rosenbaum. ·
MANDATE(USCA11-15-88)DISMISSING appeal. RETURNING c v to complete disposition of case.(EODll-23-88)(Ret^: consisting of 26 v o l s . )

to Dist
J ROA

MOTION f o r STatus Conf. by p t l f . NOTICE of svc of p l t f injunctive r e l i e f , i n t e r r o g t o d e f t s , t`y & : t f s .
Continued

Ill* ». i/n>
PLAINTIFF
UMARCA, ANTHONY

DATE

NR.

CIVIL DOCKET CONTINUATION •HCCT DEFENDANT
WUNER, R.V.
PROCEEDINGS

t»l »«.— y , ,

82-8l96-CXV-PAINE
DOCKET NO

PAGE JP

»»ACCS

une 21 Sept 18 :>ct 02
13 253
15 22 26
26 26 26

MOTION f o r e x t of t i m e t o complete d i s c o v , by Lambdin.

NOTICE of pendency of m o t , by p t l f .

c

SECOND NOTICE of pendency of mot, by p t l f s .

Cf

ORDER(JCP10/2/89)GRANTING p t l f s mot f o r s t a t u s conf for 10/13/89 6 11 AM.(EOD10/3/89)
NOTICE of s t a t u s conf s e t f o r 10/18/89 §1 PM. MOTION f o r r e - h r g , by p t l f .

conf.

SCHEDULING cf
cí
NR¿££cí

ORDER(JCP10/23/89)SETTING discov t o be concluded by 1 2 / 1 1 / 8 9 ,

SCHEDULING e v i d e n t i a r y h r g f o r 1/8/90 @9:3O. C r t w / n o t

entertain any mots for cont.(EOD10/31/89)

cí

NOTICE of appr of James Tucker for p t l f s .

cf

MOTION for l v t o take d e p o ' s & for emergency c o n s i d e r a t i o n &

Memo, by Lambdin.

NR258c

SUPPLEMENT t o mot for l v t o take d e p o ' s , by Lambdin.

c

ORDER(JCPl2/5/89)GRANTING d e f t s mot t o t a k e c e r t a i n d e p o ' s .

EXTENDING d i s c o v d a t e t o 12/15/89.(EOD12/11/89 )

c

NOTICE of tkg depo of Lambdin, Col P i p t a , Capt H i c k s , Henry

Heatherly, Gary Lane & Medina on 1 2 / 1 5 / 8 9 .

c

PETITION for Writ of H/C Ad Testificandum, by ptlfs (see f i l e for

details).

NR 261 vp

ORDER (JCP 12/16/89) for issuance of Writ of H/C Ad Testificandun,

GRANTED (see file for details).(EOD 12/28/89)

vp

MOTION for appt of Special Process Server, by p t l f s .

NR 263 vp

ORDER (JCP 12/26/89) GRANTING appt of Special Process Server (Albert

Lee) to serve Writs of H/C.(EOD 12/28/89)

vp

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of

Corrections to deliver Eduardo Acosta to U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine in WPB, and to return him to his

place of custody.

vp

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of

Corrections t o d e l i v e r Joseph Haveard t o U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine in WPB, and t o r e t u r n him t o h i s

place of custody.

vp

WRIT of H/C Ad Testificandum (Clk 12/26/89) CO>MANDING FL Dept. of

Corrections to deliver George Jonas t o U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine i n WPB, and t o r e t u r n him t o h i s

place of custody.

`T

oc nut
<*·v. 1/1*1
PLAINTIFF
LAMARCA, ANTHONY

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
TURNER, R . V .
PROCEEDINGS

tK •»«—>

PAGE

.PA

26
26
26
26
26
1990 Jan 8
8 8 8 8 8 8 9 9 8 8 8 8 10 11

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING Fl Dept. of Corrections to deliver David Marsh to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine i n WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Shelby Robertson to Ü.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Martin Saunders to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Mark C. White to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) CCMMANDING FL Dept. of Corrections to deliver Antonio Yepes to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine i n WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) CCMMANDING FL Dept. of Corrections to deliver Arnold Dennis to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.

NOTICE o f f i l i n g w i t & exh l i s t s , by d e f t Lambdin.

EXHIBIT LIST, by p l t f s .

MOTION t o c o n s i d e r a d d ' l e v i d e n c e , by d e f t s .

WITNESS LIST, by p l t f .

MOTION t o compel prod of d o c ' s , by d e f t s .

MEMO i n suppt of mot f o r prod of d o c ' s , by d e f t s .

MINUTES of E v i d e n t i a r y hrg commenced, c o n t ' d t o 1 / 9 / 9 0 .

MINUTES of E v i d e n t i a r y resumed, cont t i l 1 / 1 0 / 9 0 .

ORDER(JCPl/9/90)GRANTING d e f t s mot t o s u b s t Lambdin f o r Turner as Supt of GCI,presently s e r v i n g . ( E 0 D l / 1 1 / 9 0 )

MOTION t o c o n s i d e r a d d ' l e v i d e n c e , by d e f t s .

NR

LIST of propective witn's, by p t l f s .

LIST of Exh's, by p t l f .

NOTICE of filing wit & exh lists, by deft Lambdin.

MINUTES of evidentiary hrg on 1/10/90 commenced, cont'd to

1/11/90.

MINTUES of evidentiary hrg on 1/11/90 resumed, cont til 1/12/S

u
l/7»)
LAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

"` »»» —T U »» !·tt

DATE

LAMARCA, ANTHONY etal
NR.

TURNER, R·V. e t a l
PROCEEDINGS

PACE OF

PA&I «.

1990

n 12 10
•b 26 'Í9Q> 26 26 26 26
ar 09
Apr 09
30 300
May 10 22 22 25 29
June 05 25
July 09 19

MINUTES of evidentiary hrg on 1/12/90 resumed L· concluded.

Cf

MINUTES of evidentiary hrg on 1/10/90 resumed & cont'd to

1/11/90.

\¡ 0 *-.VP C o tíf.

TRANSCRIPT of trl before Jdg Paine on 1/8/90. pgs 1-163.

TRANSCRIPT of trl before Jdg Paine on 1/9/90. pgs 164-359. TRANSCRIPT of trl before Jdg Paine on 1/10/90. pgs 360-467

TRANSCRIPT of trl before Jdg Paine on 1/11/90. pqs 468-654 .

TRANSCRIPT of trl before Jdg. Paine on 1/12/90. pgs 655-779 .

MOTION for Clarification & enlgmt of time to file submissiòr?L' ** c

w/memo, by Lambdin.

NR cf

ORDER(JCP3/13/90)GRANTING defts mot for enlgmt of time til ¯

4/9/90 to submit proposed Findings of Fact & Conclusions

of Law & there w/be no add'l ext·s.(EOD3/20/90)

c:

NOTICE of filing proposed ord on pltfs prayer for Class Action

Injunctive relief, by Lambdin.

ci

CERTIFICATE of svc, by Lipman.

cí

ORDER(JCP4/28/90)GRANTING pltfs request for Injunctive relief,

elk to enter F/J in favor of ptlfs in accordance w/ord entered

6/4/87 & this ord, elk to close caseVACATING portions of 6/4/87

ord which contemplates use of committes, all other aspects

remain in full force & incorporated herein, RESERVING ruling

on mot for atty fees & costs til fully briefed, pltfs to fileA>

affidavits in suppt of atty fees & costs w/in 20 days.(EOD Wj

4/30/90-CCAP-M-5/9/90)

Cf

FINAL JUDGMENT(CLK4/30/9O)READOPTING & CONTINUING ord entered

6/4/87 except as modified by ord of 4/29/90, ENTERTING jdgmt

effective 6/4/87 for pltfs agnst Turner, Total compensatory

damages in amt of $178,500.00, int of 7.02% to run from 6/4/87,

Jdgmt entered agnst deft for pltfs epprecht & Gordon, pltfs te

have nothing, pltfs to submit affidavits in suppt of award of

fees & costs w/in 20 days.(See file for further details.

(EOD5/1/90-CCAp-M-5/9/90)

c

MOTION for new trl or to alter jdgmnt, by Lambdin.

NR5/¿ C

MOTION for ext of time to file mot for atty fees, by pltf.NR c MOTION for lv to file memo in excess of 20 p g s ^ b y ¿ L t f s , NR c

MOTION for atty fees & litigation expenses w/exh's attached ,6

by pltfs.

NR¾ c

RESPONSE to defts mot for new trl or to alter jdgmt, by pltf. c

MOTION for ext of time to resp to request for atty fees, w/memo,

by Lambdin.

NR c

MOTION for add'l ext of time to resp to request for atty fees

& take discov, by Lambdin.

NR <

RESPONSE to ptlfs mot for atty fees & expenses, by Lambdin. <

MOTION for enlgmnt of time to resp to defts resp to mot for atty

fees & costs, by pltfs.

NR

. DC U1A (Rev. 1/75)
PLAINTIFF

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

82-8196-CV-PAI
DOCKET NO.
PAGE,l_3_OF PAG!

31 Aug 08
13 Sept 04
11 )ctober 8
26
29 02
05

ORDER(JCP7/23/90)GRANTING p l t f s mot f o r e x t of time t i l 7/30/90 to resp to mot for a t t y fees & l i t expenses. (EOD7/31/90-CCAP)

REPLY MEMO t i resp to mot for a t t y fees & l i t expenses, by pltfs.

REQUEST for evidentiary hrg, by pl·tfs.

, .JJR

NOTICE of mot pend'g more than 60 days, by p l t f .

SUPPLEMENTAL NOTICE o f Pendency, by p l t f s .
NOTICE OF SUPPLEMENTAL AUTHORITY i n resp to p l t f s mot f o r attys fees, by deft.

ORDER (JCP 10/6/90) DENYING deft mot f o r new t r l or to a l t e r jdmt ' & GRANTING p l t f s 1 mot f o r award of a t t y 's fees (DE 304) AWARDING fees & costs f o r Stage I of $143,239.86 @ 7% interest per year from 10/8/87 through payment & f o r Stage I I of $164,222.95 @ 12% interest per year from date of t h i s order through payment. THIS ORDER IS FINAL in nature as required by 11th C i r c u i t dism of o r i g i n a l appeal & accordingly defts have 30 days i n which to f i l e an appeal. (EOD 10/15/90-CCAP, M: 10/23/90)

NOTICE OF APPEAL from F/J dated A p r i l 30, 1990 & the Order denying new t r l & granting a t t y s ' fees dated October 6,1990, by defts. (Fee pd, copies to USCA, Judge, C r t . Rptr., C r t . Rptr. Coord., csl)

LETTER OF TRANSMITTAL TO USCA w/cert copy of NOA, docket sheet, F/J & Order appealed from w/ statement re ROA t r a n s m i t t a l .
AMENDED NOTICE OF APPEAL f i l e d from F/J entered 4/30/90, the Order denying new t r l & granting attys1 fees entered 10/6/90, the p a r t i a l F/J & Order on R&R entered 6/4/87 and the Order denying defts1 mot f o r new t r l & to amend findings entered 9/19/87. (No fee pd, copies to USCA, Judge, C r t . R p t r . , C r t . Rptr. Coord., csl)

LETTER OF TRANSMITTAL TO USCA w/cert copy of amended NOA, docket r

sheet, and F/J's and Orders appealed from.

£y\ ¿j y $L·

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, MARTIN .

,\.\»

SAUNDERS, and EDWIN JOHNSON,

individually and on behalf

of all others similarly

situated, and DAVID ALDRED,

STEVE H. BRONSON, JR.,

EDDIE COBB, RON DURRANCE,

WAYNE EPPRECHT, MICHAEL

GORDON, and BILLY JOE HARPER

individually,

Plaintiffs, vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, individually and in his capacity as Superintendent of Glades Correction Institution, and RANDALL MUSIC, individually and in his official capacity as Secretary of the Florida Department of Corrections, and the STATE OF FLORIDA,

Defendants.

sft

THIRD AMENDED COMPLAINT FOR- DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

1. The initial three named plaintiffs, Anthony LaMarca, Martin Saunders, and Edwin Johnson, present or former inmates of Glades Correctional Institution (hereinafter, GCI) located in Belle Glades, Florida , and operated by the Florida Department of Corrections, sue for declaratory and injunctive relief on their behalf and on behalf of others similarly situated who are, have been, or will be incarcerated by GCI. They additionally, joined by the other named plaintiffs, sue

for damages. The suit is based on the negligence, gross negligence and deliberate indifference of the defendants, which has resulted in a violent, lawless atmosphere within GCI, in which the plaintiffs and others have suffered physical attacks, robberies, extortion and homosexual rapes. The only refuge that the plaintiffs have from the violence and lawlessness is a protective confinement situation in which conditions fall so far below standards as to constitute cruel and unusual punishment.
JURISDICTION 2. This is a case arising under 42 U.S.C. §§ 1983 and 1988 and the Eighth and Fourteenth Amendments to the United States Constitution. Jurisdiction is founded on 28 U.S.C. §§ l33l(a) and 1343(3) and (4).
CLASS ACTION ALLEGATIONS 3. This action is properly maintainable as a class action for injunctive relief pursuant to Federal Rules of Civil Procedure 23(a)(l)(2)(3) and (4), (b)(l)(B), (b)(2) and (b)(3). An order certifying the class for injunctive relief was entered April 13, 1984. 4. The class for injunctive relief consists of those approximately 800 inmates presently incarcerated in GCI or those inmates within the Florida prison system who may in the future be incarcerated at GCI. 5. The named plaintiffs are representative of the class in that they have suffered attacks, robberies, extortions, and homosexual rapes as a result of the violent atmosphere created
-2-

at GCI as a direct, natural and proximate result of the negligence, gross negligence and deliberate indifference of the defendants.
6. The questions of law and fact common to the named plaintiffs and to the other members of the class are:
a. whether the conduct of the defendants constitutes negligence, gross negligence or deliberate indifference to the safety of the plaintiffs and others similarly situated, and
b. whether the conduct1 of the defendants constitutes negligence, gross negligence or deliberate indifference so as to violate the rights of the plaintiffs under the Eighth and Fourteenth Amendments to the United States Constitution.
7. As to the requirements of Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3):
a. the merits of resolving the claims of the named plaintiffs as a class action outweigh the interest of members of the class in individually controlling the prosecution of separate actions and, in fact, other members and former members of the class now seek to join this suit as co-plaintiffs to resolve similar damage claims;
b. there is no other litigation involving the rights of the members of the class that is advanced as far as this action, which is set for trial in December, 1985;
c. economy of judicial resources will be served by
resolving this action before a single forum; and d. because all of the members of the class are
institutionalized, and because all have been given notice,
-3-

*

there are no problems in the management of this action as a

class action.

STATEMENT OF DEFENDANTS' WRONGFUL PRACTICES

8. a. Defendants, R. V. TURNER, and now RANDALL MUSIC,

have operated GCI negligently, grossly negligently and with

deliberate indifference to the safety of the plaintiffs, and of

other inmates, in violation of 42 U.S.C. § 1983 and of the

Eighth and Fourteenth Amendments to the United States

;,

Constitution.

b. The STATE OF FLORIDA is a party to this lawsuit

solely for purposes of any potential attorney fee and

litigation expenses award pursuant to 42 U.S.C. § 1988, (Civil

Rights Attorney's Fees Awards Act of 1976) as provided in

Le¾gett v. Badger, 759 F2d 1556 (11th Cir. 1985). Any other

reference to "Defendants", other than matters relating to **
¯v`
attorney fees/litigation expenses, in this Complaint expressly

does not relate to the STATE OF FLORIDA.

FACTS GENERAL TO THE CLASS

ï

9. GCI is a Florida state prison housing inmates of

various custody classifications, from minimum to close custody,

which inmates all bunk in common barracks-type areas without

any segregation of inmates according to either criminal

histories, length of sentences, custody classifications, or

known propensities for violence'and/or aggressive homosexual

behavior.

10. Defendants, at all times material acting under color

of state law as superintendants of GCI, have failed, either through negligence, gross negligence or deliberate indifference
-A-

to: a. adequately staff the barracks with guards to
prevent attacks, robberies, homosexual rapes and extortions; b. report to superiors within the Florida Department
of Corrections the level of attacks, robberies, homosexual rapes and extortions;
c. punish and or prosecute those engaged in attacks, robberies, homosexual rapes and extortions;
d. provide adequate protection to inmates in legitimate fear of attacks, robberies, homosexual rapes and extortions;
e. segregate from other inmates those inmates known to have a propensity to commit attacks, robberies, homosexual rapes and extortions;
f. keep weapons out of the hands of those inmates with a propensity to commit attacks, robberies, homosexual rapes and extortions;
g. adequately train correctional officers; h. and/or otherwise provide adequate security to those inmates incarcerated at GCI.
FACTS SPECIFIC TO THE NAMED CLASS PLAINTIFFS 11. Plaintiff, Anthony LaMarca, initially arrived at GCI in 1980. Although subsequently released, he has been reincarcerated within the Florida prison system and there is a real and concrete possibility that he will be transferred back to GCI.
-5-

12. After his initial arrival at GCI, plaintiff, LaMarca was approached by other inmates who insisted he participate in homosexual acts. When he refused, he was physically attacked. Defendant, Turner, knew or should have known of the plight of plaintiff, Anthony LaMarca, but did nothing to protect him from attacks, robberies, homosexual rapes and extortions. Rather, plaintiff, Anthony LaMarca was forced to defend himself, the defenses being considered fights that resulted in disciplinary confinement and a loss of good-behavior time.
13. Plaintiff, Martin Saunders was an inmate at GCI since February, 1983. He is presently incarcerated at South Florida State Hospital, but there is a real and concrete possibility that he will be transferred back to GCI.
14. After his initial arrival at GCI, plaintiff, Martin Saunders was extorted for protection money by two inmates who attacked him when he refused payment. He additionally was beaten, robbed at knifepoint, stabbed in his face and raped at knifepoint by other inmates.
15. Plaintiff, Edwin Johnson, was an inmate at GCI beginning in February 1983. He is presently incarcerated at Hollywood Community Center, but there is a real and concrete possibility that he will be transferred back to GCI.
16. Upon his initial arrival at GCI, plaintiff, Edwin Johnson, had begun to be solicited by other inmates to engage in a homosexual act with other inmates, which solicitation continued and resulted in plaintiff's being physically attacked and threatened with a knife.
-6-

17. When plaintiff, Edwin Johnson, sought protective

custody, he was placed with two other inmates in a cell that

was six¯by¯nine feet, was unventilated, insect infested, foul

smelling and filthy. During his period of protective custody,

plaintiff, Edwin Johnson was not permitted to shower more than

three three-minute periods a week, to sleep on a bed, to change

his clothing, or to leave his cell for any purpose. Further,

he was not permitted to participate in any educational,

cultural, religious or rehabilitative activities. He was not

permitted to withdraw money from his account, to purchase

cigarettes or toilet articles from the canteen, or to

exercise. He was so confined and restricted for a protracted

^

period of time.

18. The injuries and deprivations experienced by

g¦

plaintiffs, Anthony LaMarca, Martin Saunders and Edwin Johnson,

and similar injuries and deprivations experienced by others

similarly situated, are the direct, natural, foreseeable and

proximate result of the actions of defendants, R.V. Turner and

Randall Music, as more particularly alleged in Paragraphs 8 and

10, and of the conditions alleged in Paragraph 9.

FACTS SPECIFIC TO THE ADDITIONAL NAMED PLAINTIFFS

19. Plaintiff, David Aldred, was on or about July 21,

1984, hit on the head and raped twice as he took a shower in

Dormitory B. A guard, whose identity is presently unknown,

could have prevented the attack, but instead remained inside a

cage-like device known as a wicket. Plaintiff ALDRED had

requested protective custody before the attack. A Lieutenant

denied the request. -7-

20. a. This assault resulted from Defendant TURNER'S

failure to provide:

¢i)

an adequate number of security staff

personnel;

¢ii) adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi) separation of violent and inappropriate

inmates from the general population when an incident occurs;

`(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

``"^`¯¯¯`^(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

Mix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

^^-_(x)

housing based on inmate need, not work

assignment;

¢xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate Investigation of inmates' reports of

assault or extortion attempts;

-8-

(xili) control of contraband;

xiv) inmate transfer to alternative housing

because of threats;

¢xv)

adequate notification to his superiors

concerning:

`%(a) racial imbalance among the inmate population;
`£b) the preponderance of high risk

inmates in the population; ~``~(c) aggressive inmates, inappropriate
to Belle Glade

b. As a direct, natural, proximate and foreseeable result of the incident, the occurrence of which was a direct, natural, proximate and foreseeable result of the actions of defendants alleged with particularity in Paragraphs 8 and 10,

and the conditions alleged in Paragraph 9, plaintiff, David Aldred, has been damaged, to wit: he has suffered injuries to his lower back, mental anguish, and psychiatric disturbances that have manifested themselves in his attempted suicide, which injuries are continuing and permanent in nature.

21. Plaintiff, Steve H. Bronson, Jr., also known as Nancy Sue Bronson, in or about June 1982, was held down by a group of inmates in B Dormitory while one, known as "Mack," inserted the handle of a baseball bat in his rectum-as punishment for plaintiff, Steve H. Bronson, Jr.'s refusing to work for Mack as

a male prostitute. Plaintiff Bronson, a homosexual, required special protection within the prison compound because of his

-9-

vulnerability to inmate attacks. Because of the lack of

security, he was extorted and ultimately assaulted.

22. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence rampant in Belle Glades1 population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts; -10-

(xiii) control of contraband; (xiv) inmate transfer to alternative housing because of threats; (xv) adequate protests to his superiors concerning:
(a) racial imbalance among the inmate population; (b) the preponderance of high risk
inmates in the population; ¢c) aggressive inmates, inappropriate
to Belle Glade b. As a direct, natural, proximate and foreseeable result of the incident alleged in paragraph 21, which incident was the direct, natural proximate and foreseeable result of the conduct by defendant, R. V. TURNER alleged particularly in Paragraphs 8 and 10 and the conditions alleged in Paragraph 9, plaintiff, Steve H. Bronson, Jr., was damaged, to wit: he suffered rectal bleeding and mental anguish, which injuries are continuing and permanent in nature. 23. Plaintiff, Eddie Cobb, was on or abut January 27, 1984, stabbed in the arm by inmate Larry Pryor, who, upon information and belief, was acting upon the instructions of a 11 Lt. Barrett," of whom defendant, R.V. Turner, was the supervisor. No criminal charges were instigated against the inmate, Larry Pryor, notwithstanding the knowledge of his identity by defendant, R.V. Turner. Plaintiff COBB was attacked and stabbed several times with a knife by a known violent prisoner. This incident was investigated; however, Plaintiff COBB was given no opportunity to bring criminal
-11-

charges against his assailant. Plaintiff COBB was placed into

administrative confinement for several weeks after the attack

and was not informed of the reason for his confinement. His

assailant was released into the general population.

24. a. This assault and the subsequent confinement

without informing the inmate of the reasons for his confinement

resulted from Defendant TURNER'S failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

¢viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix) correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

¢x)

housing based on inmate need, not work

assignment;

-12-

(xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv)

adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the conduct of inmate Pryor and Lt. Barrett, which

conduct was the direct, natural, proximate and foreseeable

result of the conduct by defendant, R.V. Turner alleged

particularly in Paragraphs 8 and 10, and the conditions alleged

in Paragraph 9, plaintiff, Eddie Cobb, has been damaged, to

wit: he suffered injuries to his head and right arm, which

injuries are continuing and permanent in nature.

25. As a direct, natural, proximate and foreseeable result

of the conduct of inmate Pryor and Lt. Barrett, which conduct

was the direct, natural, proximate and foreseeable result of

the conduct by defendant, R.V. Turner alleged particularly in

Paragraphs 8 and 10, and the conditions alleged in Paragraph 9,

plaintiff, Eddie Cobb, further has been damaged, to wit: he

suffered a deprivation of his rights under the Eighth and -13-

Fourteenth Amendments to the United States Constitution to be

fre„e from punishment without due process of law.

26. Plaintiff, Ron Durrance, was in or about March, 1984

raped at knifepoint in the shower of B dormitory by inmates

whose identities, upon information and belief, are Willie Dock,

Sr., "Bull" Williams, and "Bone." Although the identities of

the assailants were reported to prison officials, no punishment

or criminal prosecution ensured. After the attack, Plaintiff

DURRANCE requested protective confinement from a security staff

member. The officer refused to believe that the was attacked

and neither investigated Plaintiff DURRANCE'S charges nor

granted him protection.

27. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii) adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv) sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi) separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(vili) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix) correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

(x)

housing based on inmate need, not work

assignment;

(xi) adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv) adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the rape alleged in Paragraph 26, which rape was the

direct, natural, proximate and foreseeable result of the

conduct by defendant, R.V. Turner alleged particularly in

Paragraphs 8 and 10, and the conditions alleged in Paragraph 9,

plaintiff, Ron Durrance was damaged, to wit: he has suffered

from an aggravation of hemorrhoids and mental anguish, which

-15-

injuries are continuing and permanent in nature.

.28. Plaintiff, Wayne Epprecht, was in or about February

1982 robbed and beaten with a lead pipe by unknown inmate

assailants at GCI. The guard on duty was not present. The

inmates who had attacked him were known to be violent as they ¿( had assaulted others.

29. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

¢viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

-16-

¢x)

housing based on inmate need, not work

assignment;

(xi) adequate response to inmates' requests for

protective confinement;

(xii) adequate investigation of inmates' reports of

assault or extortion attempts;

(xiii) control of contraband;

(xiv) inmate transfer to alternative housing

because of threats;

(xv) adequate protests to his superiors concerning:

(a) racial imbalance among the inmate population;

(b) the preponderance of high risk

inmates in the population;

(c) aggressive inmates, inappropriate

to Belle Glade

b. As a direct, natural, proximate and foreseeable

result of the robbery and beating alleged in Paragraph 28,

which robbery and beating were the direct, natural, proximate

and foreseeable result of the conduct by Defendant, R.V. Turner

alleged particularly in Paragraphs 8 and 10, and the conditions

alleged in Paragraph 9, plaintiff Wayne Epprecht, has been

damaged, to wit: he suffered a broken left cheek bone, which

required surgery and still requires further surgery and

continues to experience pain and suffering, all of which

injuries are continuing and permanent in nature.

30. Plaintiff, Michael Gordon, in or about 1984, was beaten on one occasion; beaten and robbed on another; and set

-17-

on fire on another.

.31. a. This assault resulted from Defendant TURNER'S

failure to provide:

(i)

an adequate number of security staff

personnel;

(ii)

adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv)

sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi)

separation of violent and inappropriate

inmates from the general population when an incident occurs;

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(viii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix)

correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

¢x)

housing based on inmate need, not work

assignment;

¢xi)

adequate response to inmates' requests for

protective confinement;

(xii) adequate Investigation of inmates' reports of

assault or extortion attempts;

-18-

(xiii) control of contraband; (xiv) inmate transfer to alternative housing because of threats; ¢xv) adequate protests to his superiors concerning:
(a) racial imbalance among the inmate population; (b) the preponderance of high risk
inmates in the population; ¢c) aggressive inmates, inappropriate
to Belle Glade b. As a direct, natural, proximate and foreseeable result of the incidents alleged in Paragraph 30, which incidents were the direct, natural, proximate and foreseeable result of the conduct by defendant, R.V. TURNER alleged particularly in Paragraphs 8 and 10, and the conditions alleged in Paragraph 9, plaintiff, Michael Gordon, has been damaged, to wit: he suffered pain and suffering, dental fractures, and mental anguish, resulting in hypertension, which injuries are continuing and permanent in nature. 32. Plaintiff BILLY JOE HARPER was an inmate at Glades Correctional Institution ion 1982. On the night he was transferred to Glades Correctional Institution on December 31, 1981, Plaintiff HARPER was raped and beaten. During his 12 month incarceration at Glades Correctional Institution he was continually extorted. Because of his age (22) and background, plaintiff HARPER should have been protected by the prison staff during his incarceration.
-19-

33. a. Plaintiff HARPER'S assault, subsequent extortion

and. lack of protection resulted from Defendant TURNER'S failure

to provide:

(i)

an adequate number of security staff

personnel;

(ii) adequately trained security staff;

(iii) a system for staff communication channels,

accountability, supervision;

(iv) sufficient security for inmate safety;

(v)

sufficient constructive activities when in

protective custody to avoid the violence and threat of violence

rampant in Belle Glades' population;

(vi) separation of violent and inappropriate

inmates from the general population when an incident occurs;

gg

(vii) protection to inmates who report personal

assaults and extortion attempts to staff members;

(vlii) consideration of vulnerable inmates' needs

upon transfer to Glades Correctional Institution;

(ix) correction for classification errors upon

transfer to Glades Correctional Institution by providing

appropriate housing or arranging the transfer of such inmates

¢x)

housing based on inmate need, not work

assignment;

(xi) adequate response to inmates' requests for

protective confinement;

¢xii) adequate investigation of inmates' reports of

assault or extortion attempts;

-20-

¢xili) control of contraband; (xiv) inmate transfer to alternative housing because of threats; (xv) adequate protests to his superiors concerning:
(a) racial imbalance among the inmate population; (b) the preponderance of high risk
inmates in the population; (c) aggressive inmates, inappropriate
to Belle Glade b. As a direct, natural, proximate and foreseeable result of the attack on plaintiff HARPER alleged in Paragraph 32 which attached was the direct natural, proximate and foreseeable result of the conduct of Defendant, R.V. Turner alleged particularly in Paragraphs 8 and 10 and those conditions alleged in Paragraph 8, Plaintiff BILLY JOE HARPER has been damaged, to wit: severe psychiatric and emotional disturbances.
CLAIMS FOR RELIEF 34. Defendants' conduct, as more particularly alleged in Paragraphs 8 and 10, and the conditions at GCI, as alleged in Paragraph 9, constitutes cruel and unusual punishment of the named plaintiffs and others similarly situated, and thereby violates the Eighth and Fourteenth Amendments to the United States Constitution. 35. Defendants' conduct irreparably injures plaintiffs and their class and will continue to irreparably injure them unless enjoined by this court. Plaintiffs have no adequate remedy at
-21-

law for future violation of their rights under the Eighth and Fourteenth Amendments to the United States Constitution.
36. The individual named plaintiffs have suffered damages that are compensible pursuant to 42 U.S.C. § 1983, which damages are the direct, natural, proximate and foreseeable result of defendant, R.V. Turner's conduct in violation of plaintiff's rights under the Eighth and Fourteenth Amendments to th United States Constitution.
RELIEF WHEREFORE, plaintiffs pray that this court should:
a. declare that the manner in which defendant R.V. TURNER had operated and RANDALL MUSIC currently operates GCI has been and continues to be in contravention of the Eighth and Fourteenth Amendments to the United States Constitution;
b. enjoin defendant, RANDALL MUSIC, to present to this court a plan for reducing the instances of attacks, robberies, homosexual rapes and extortions at GCI;
c. award damages, including exemplary damages, against defendant, R.V. TURNER, for the named plaintiffs;
d. award plaintiffs their costs and a reasonable award of attorneys' fees pursuant to the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988 g_t seq. (as amended), and to grant such alternative and additional relief as appears to the court to be equitable and fair.
Respectfully submitted.
-22-

DATED: 07 November, 1985

LUü
DAVID M. LIPMAN ROBERT E. WEISB

ad Counsel)

LIPMAN & WEISBERG 5901 S.W. 74 Street Suite 304 Miami, Florida 33143-5186
(305) 662-2600
WILLIAM AMLONG HALL & AMLONG Fourth Floor - East 524 S. Andrews Avenue Ft. Lauderdale, Florida 33301 (305) 467-8505

ATTORNEYS FOR PLAINTIFFS

-23-

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, MARTIN SAUNDERS, and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE COBB,¯ RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON, and BILLY JOE-HARPER, individually,

Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, individually and in his capacity as Superintendent of Glades Correction Institution, and RANDALL MUSIC, individually and in his official capacity as Secretary of the Florida Department of Corrections, and the STATE OF FLORIDA,

Defendants.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that Plaintiffs' Third Amended Complaint has been mailed to the following counsel of record:

WALTER M. MEGINNISS Assistant Attorney General Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32301

MICHAEL B- DAVIS DAVIS, CRITTON, HOY & DIAMOND Post Office Box 3797 West Palm Beach, Florida 33402

DAVID M. LIPMAN ` WILLIAM R. AMLOUGJ KAREN COOLMAN AMLONG

I 4
DATED: 07 NOVEMBER, 1985 0086L

ATTORNEYS FOR PLAINTIFFS

¾

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LAMARCA, MARTIN SAUNDERS, and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON, and BILLY JOE HARPER,

Plaintiffs
v.
R. V. TURNER, Individually, and RANDALL MUSIC, as Superintendent of Glades Correctional Institution,

CASE NO. 82-8196-.C_L$sPAINE

Defendants.

/

APPEAL FROM MAGISTRATE'S ORDER

m

AND PETITION FOR EMERGENCY HEARING

Pursuant to Magistrate Rule 4(a) of the U.S. District Court for

the Southern District of Florida, Defendants, R. V. TURNER, RANDALL

MUSIC and the State of Florida, by and through undersigned counsel,

enter their appeal to the order of Magistrate Peter L. Nimkoff entered

after a hearing on Monday, November 25, 1985. The Order is attached

;3

as Exhibit A. The portions of the order from which this appeal is

\

taken and through which error was committed are the following:

1) The Magistrate erred in denying the demand for jury trial filed by Defendants on November 6, 1985;

2) The Magistrate erred in denying Defendants' motion to continue the evidentiary hearing set for December 2, 1985 as the action was not at issue on Plaintiff's Third Amended Complaint.

Defendants therefor petition for a hearing on these issues on an

emergency basis because of the evidentiary hearing now set for December 2, 1985. A memorandum of law containing the grounds and citations of authority supporting Defendants' position follows.
MEMORANDUM OF LAW
DENIAL OF DEMAND FOR TRIAL BY JURY This action was initiated by ANTHONY LAMARCA, proceeding pro se, against R. V. TURNER, Superintendent of Glades Correctional Institution, on March 14, 1982. After the filing of motions for summary judgment by both sides, a status conference was set in Miami on July 22, 1983. Thereafter, on or about September 22, 1983, an Amended Complaint was filed by counsel on behalf of ANTHONY LAMARCA, MARTIN SAUNDERS, EDWIN JOHNSON and HENRY ROSENBAUM. The Amended Complaint added three new plaintiffs (SAUNDERS, JOHNSON and ROSENBAUM) and one new defendant (LOUIE L. WAINWRIGHT); requested that the action be maintained as a class action for injunctive relief; and demanded compensatory and exemplary damages for the four named Plaintiffs. On April 13, 19 84, an Order Certifying Class was entered by this court for purpose of injunctive relief only. The case remained in this posture until August 26, 1985 when a Motion for Leave to File Second Amended Complaint was served. The Motion was approved by Magistrate Nimkoff in an Order entered September 19, 1985, which directed that it would be effective nunc pro tune as of August 25, 1985. The Second Amended Complaint made the following changes: 1) Seven (7) new persons were added as named plaintiffs.
(DAVID ALDRED, STEVEN H. BRONSON, EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON and KEITH HARRIS);
-2-

2) Each newly named plaintiff claimed compensatory and exemplary damages for distinct and separate incidents which allegedly occurred while incarcerated at Glades Correctional Institution;
3) Louie L. Wainwright was dropped as a party defendant; 4) RANDALL MUSIC, current Superintendent of Glades Cor-
rectional Institution was added as a party defendant for purposes of injunctive relief. To the Second Amended Complaint a Motion for More Definite Statement was filed on October 7, 1985. ün November 13, 1985, a Third Amended Complaint with accompanying motion was served on behalf of Plaintiffs. This new Complaint added the State of Florida as a defendant for purposes of attorneys fees and substituted BILLY JOE HARPER for Keith Harris as a named plaintiff. In the meantime a Demand for Jury Trial was filed on November 6, 1985 by the Defendants. This matter was opposed by Plaintiffs on November 19, 1985, and on November 25, 1985, at a status conference in Miami, Magistrate Nimkoff denied the Demand. The Order of the Magistrate is appended as Exhibit A. It is the position of Defendants that with the addition of seven new plaintiffs with their independent claims, they have the absolute right to demand a trial by jury under the Seventh Amendment to the U.S. Constitution. This is not a case of seven plaintiffs seeking damages under a common theory. To the contrary, seven individuals, while seeking monetary relief against the former Superintendent of Glades Correctional Institution under what appears to be a respondent superior theory, have asserted seven distinct claims. Each will require proof of facts as to whether the alleged incidents upon which the claims are based did occur, whether there is a causative nexus between conduct of the defendants and the alleged incidents and whether there are any damages should
-3-

liability be established. In effect, there are now seven new law suits
which have been lumped together with the class action certified on
April 13, 1984.
The general rule with respect to a jury trial on an amended com-
plaint appears to be that when new issues of fact are raised a demand
for trial by jury will be honored. In Guajardo v. Estelle, 580 F2d
748, 752-753 (5th Cir. 1978), the court said:
...Plaintiffs commenced this action by asking for both injunctive and declaratory relief. Although they would not have been entitled to a jury trial on equitable issues, they might have demanded a jury trial on factual issues underlying the declaratory judgement action. 5 J. Moore, Federal Practice ¶38.29. If the claim were legal, its jurygenerating aspect could .not be lost by joinder with claims for equitable relief. Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 R.Ed.2d 44 (1962); Beacon Theaters v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Assuming that a legal claim existed, the issue is whether the state sought a jury trial within ten days from the last complaint raising it as an issue. A complaint "raises an issue" only once within Rule 38 (b)'s meaning — when it introduces it for the first time. Amendments not introducing new issues will not give rise to a demand for jury trial. Connecticut General Life Insurance Co. v. Breslin, 332 F2d 928 (5 Cir. 1964)(defendant's amended answer did not raise issues materially different from those presented by the original answer and waiver of jury trial remained effective); Swofford v. B & W, Inc., 34 F.R.D. 15 (S.D. Tex. 1963)(where new jury issues are created by amendment a party may properly demand a jury trial, but an amendment which neither changes the nature of the case nor introduces new issues does not renew that right). The term "new issues" has been interpreted to mean new issues of fact and not new theories of recovery.
See also 5 J. Moore,Federal Practice §38.41. (It is now well settled
that where the amendment creates new jury issues, a party upon timely
demand therefor is entitled to a jury trial if the amended pleading
sets forth new factual issues and not merely a different legal theory).
There can be no doubt that new issues of fact have been raised
with the addition of seven (7) new claims for seven (7) new plaintiffs.
These jury trial issues, according to the Guajardo standard, has renewed
-4-

the right. The new claims were initiated by Plaintiffs and the danger of the
Magistrate's ruling is to deny Defendant Turner of his right to trial by jury for their independent claims. The result is obvious. Under this ruling, any new plaintiff can be added to the present action and Defendant Turner's right under the Seventh Amendment will be ineffective, while,on the otherhand, any of the new plaintiffs proceeding independently could not terminate that right. The certification for the class was for injunctive relief. The original plaintiffs (3 in number before the Second Amended Complaint) sought compensatory and exemplary damages. The liability of R. V. TURNER in damages was never claimed only on behalf of any other member of the class. R. V. TURNER must be permitted to exercise this jury trial right.
Plaintiffs opposed the jury demand and in their memorandum took the position that the demand was untimely since an answer to the Amended Complaint was filed October 31, 1983. They overlook the fact that two new complaints have been filed very recently. The demand of November 6, 19 85 was addressed to the newer complaints and does not invoke court discretion provided under Rule 15 (b) Fed.R.Civ.P. The demand was made prior to answer as a motion for more definite statement addressed to the Second Amended Complaint was then pending.
In the Third Amended Complaint at least three issues are presented as to each of the seven new plaintiffs, i.e. a) Did the incident occur, b) was there causation in fact between the conduct of the defendants and the incidents alleged-1© have occurred with each plaintiff and, c) whether each plaintiff suffered any damages, and, if so, how much.
-5-

DENIAL OF MOTION TO CONTINUE

Local Rule 11 of the United States District Court for the Southern

District of Florida provides:

A continuance of any trial pretrial conference, or other hearing will be granted only on exceptional circumstances. No such continuance will be granted on stipulation of counsel alone. However, upon written notice served and filed at the earliest practical date prior to the trial, pretrial conference, or other hearing, and supported by affidavit setting forth a full showing of good cause, a continuance may be granted by the Court.

Defendants would respectfully submit that exceptional circumstances

to indeed exist in this case to support a continuance of the trial set

for December 2, 1985, and removal from the trial docket. Denial of the

Motion, it is respectfully submitted, constituted error under the cir-

cumstances of this case.

First of all, the action is not at issue. Prior to a status con-

ference before the Hon. Peter L. Nimkoff on October 8, 1985, a Motion

for More Definite Statement was served on behalf of Defendants. To

this Motion, Defendants were provided supplemental information by

Plaintiffs' counsel to assist in the framing of an answer. Integrating

` the supplemental information with the Second Amended Complaint and

(ï\

formulating an answer on the basis of the two sources proved to be

cumbersome and confusing. Plaintiffs' counsel was advised and agreed

to serve another complaint which would facilitate an answer and provide

pleadings upon which the issues could be presented with clarity for the

trial.

A Third Amended Complaint was thereafter'received by express mail

on November 8, 1985, which only compounded the situation. It was noted

that a substitution of named Plaintiffs had been made, i.e. Billy Joe

Harper was named rather than Keith Harris and it further appeared that

-6-

;

the allegations as to the newly named Plaintiff were completely different

( as to time and participants. In addition, Plaintiffs sought to sue the

4

two Defendants, both in their official and individual capacities. As

'?•

to the Defendant, RANDALL MUSIC, the Third Amended Complaint is devoid

¾

of any allegation which would establish liability on his part for damages.

'•

His only responsibility, it would appear, is that he will be asked to

formulate a plan pertaining to the future operation of Glades Correctional

'•: Institution. It is questionable, therefore, that a suit against him

individually is appropriate.

` ¯

Plaintiffs further sought to add the State of Florida as a Defendant

for purposes of award of attorneys fees, citing Legett v. Badger, 759

F.2d 1556 (11th Cir. 1985). In light of the U.S. Supreme Court decision

in Kentucky d/b/a Bureau of State Police v. Graham, et al., (Case No.

:

84-849, Decided June 28, 1985), it is questionable that this addition

I

is sound. These and other matters need to be sorted out as well as com-

üf

pletion of discovery.

í

j

Finally it is to be noted that Local Rule 10E requires that the

|

court be notified by counsel when the action or proceeding becomes at

I

issue. In view of the above, this has not been possible. It is sub-

î

!

mitted, in view of that rule, that bringing the matter to issue is a

I

prerequisite to setting a trial. Furthermore, when amended pleadings

\

are approved by the Court, Rule 15(a) Fed.R.Civ.P. provides at least

]

10 days to answer. The leave to proceed under the Third Amended

1

Complaint was granted on November 25, 1985.

Discovery

It is respectfully submitted that respective counsel have worked

together to resolve the remaining discovery issues as directed by the

Order of the Magistrate entered October 15, 1985. Copies of inmate

-7-

records (more than 4472 pages) have been provided to Plaintiffs' counsel. More than 500 pages of documentary material were provided by Glades Correctional Institution on November 7, 1985. In addition, arrangements have been made during the past three weeks by Defendants' counsel to permit Plaintiffs' expert, Dr. Richard Swanson, to visit each of the named Plaintiffs, where incarcerated, for purposes of interview and trial preparation. All of these arrangements have ¯been time consuming and adversely affected Defendants' efforts to proceed with discovery required before trial.
Defendants took depositions of the newly named Plaintiffs and two of their witnesses during the three-day period of November 13-15. Four depositions were set for the Starke area on the 13th. The following day, the scene shifted to Lake Correctional Institution, Polk Correctional Institution and Avon Park Correctional Institution for three depositions. Finally, on the 15th, two more depositions were taken in Hollywood and Glades Correctional Institution.
Plaintiffs have now completed depositions of Defendants Turner and Music at Glades Correctional Institution on November 26, 1985. Defendants feel it to be imperative to depose Dr. Swanson and Plaintiffs approve. This is scheduled for November 29th. However, Plaintiffs have submitted two other experts and their depositions must also be taken.
The Second Amended Complaint and now the Third Amended Complaint has added seven (7) new Plaintiffs with separate claims for damages. While these are being investigated diligently, it is becoming more and more apparent that further discovery will be required. Each new claim indicates that the participants in the seven (7) incidents are not the same. The identity of inmates alleged as assailants to the seven (7) new Plaintiffs still have not been established with certainty and,
-8-

at this point, can only be ascertained through discovery. This will

have to be attempted in the time remaining which, of course, will be

interrupted by the Thanksgiving Holiday.

Defendants would submit that denial of the Motion to Continue was

prejudicial error. Every endeavor has been made to accommodate discovery

demands of Plaintiffs. With the injection of new inmates and their separate

claims, time needed to coordinate, conduct pretrial conferences, assemble

documents from thousands of pages of records, and prepare a meaningful

pretrial stipulation is just not available. A trial date of December 2,

1985, the first day after the Thanksgiving Holiday, does not permit a

real opportunity to prepare this case for trial at that time. Defendants

are entitled to due process of law and the compressed time for preparation

caused by the addition of seven (7) new tort claims will prohibit their

opportunity to defend. There has been no showing that a need exists

to try this case as early as December 2, 1985. After all, some of the

new plaintiffs are presenting claims with respect to incidents occurring

three years ago. The denial under these circumstances must be considered

as error.

Respectully submitted,

Michael B. Davis, Esquire
DAVIS CRITTON HOY & DIAMOND Post Office Box 3797
(305ì 478¯2400 West Palm Beach, FL 33402

JIM SMITH Attorney General
T7

WALTER M. MEGINNISS I Assistant Attttoorrnneey¯y~¯G~ëGri¯ér"ár ¯"

DEPARTMENT OF LEGAL AFFAIRS The Capitol - Suite 1502 Tallahassee, FL 32301 (904) 488-9935

-9-

CERTIFICATE OF SERVICE

í,

WE HEREBY CERTIFY that a true and correct copy of the foregoing

f

has been furnished to David M. Lipman, Esq., LIPMAN & WEISBERG,

5901 S.W. 74 Street, Miami, FL 33143-5186 and William Amlong, Esq.,

HALL & AMLONG, 524 South Andrews Avenue, Fourth Floor, Fort Lauderdale,

FL 33301, by U. S. Mail, this 27th day of November, 1985.

Michael B. Davis, Esquire DAVIS CRITTON HOY & DIAMOND Post Office Box 3797 West Palm Beach, FL 33402 (305) 478-2400

JIM SMITH Attorney General
J
WALTER M. MEGINNIS Assistant Attorri` eneral
DEPARTMENT OF LEÏGGAL AFFAIRS The Capitol - Suite 1502 Tallahassee, FL 32301 (904) 488-9935

m-\

-10-

ANTHONY LA MARCA, e t a l . , v. R. V . TURNER, e t a l .

UNITED STATES DISTRICT COURT SOUTHL·Rii DISTRICT OF FLORIDA
CASE NO. 82-8196-Civ-PAINE

ORDER

• r
i
ttOV¿5j ;9B5

For r e a s o n s r e c i t e d in open Court, i t was ORDERED as follows:
1. P l a i n t i f f s ' Motion to file a Third Amended Complaint is GRANTED nunc pro tune November 14, 1985. The Court makes no p r e s e n t r u l i n g , however, r e g a r d i n g the r e c o v e r a b i 1 i t y of a t t o r n e y s ' fees or the presence of the State of F l o r i d a as a Defendant for that purpose.
2. Defendants' Jury-Demand i s DENIED. The Motion for further Continuance of Trial is DENIED, without p r e j u d i c e . Upon t h e i r Motion to S t r i k e , the Court RESERVES. The p a r t i e s are cautioaed t h a t the Court expects t h a t any expert witness w i l l have been made a v a i l a b l e for deposition before t h a t e x p e r t ' s testimony is tendered to the Court. If there i s any issue upon which Defendants require a brief adjournment after the court has begun the t r i a l next week, t h e i r r i g h t to adjournment can be further considered at that time.
ORDERED in Miami, Florida, November 25, 1985.

Copies: Walter M. Meglnnis, Esq. David M. Lipman, Esq. William M. Amlong, Esq. Michael B. Davis, Esq.

p U- K3 ^
PETER L. NIMKOFF
UNITED STATES MAGISTRATE

Bl·

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
ANTHONY LAMARCA, MARTIN SAUNDERS, and EDWIN JOHNSON, individually and on behalf of all others similarly situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT, MICHAEL GORDON, and BILLY JOE HARPER)

Ñ.

Plaintiffs
v. R. V. TURNER, Individually, and RANDALL MUSIC, as Superintendent of Glades Correctional Institution.
Defendants.

CASE NO. 82-8196-CIV-PAINE
`"HUE COP*

OOCKET£O BY ANSWER OF DEFENDANTS, R. V. TURNER
AND RANDALL MUSIC, TO PLAINTIFF'S THIRD AMENDED COMPLAINT
COME NOW the Defendants, R. V. TURNER and RANDALL MUSIC, and in answer to the Plaintiffs' Third Amended Complaint, would say:
1. That they admit the following allegations set forth in the Third Amended Complaint:
(3) That an order certifying the class for injunctive relief was entered April 13, 1984;
(9) That GCI is a Florida state prison housing inmates of various custody classifications,from minimum to close custody;
2. That they deny all remaining allegations set forth in the
Third Amended Complaint.
Defense II
3. That the Defendants, R. V. TURNER and RANDALL MUSIC, acted

{

V

at all times in good faith, believing that their actions were lawful and that such belief was a reasonable one for them to hold.

Defense III 4. That the Plaintiffs were each themselves negligent: 1) in that they placed themselves in situations or positions where they might suffer assaults when they knew or could have reasonably foreseen that assaults were likely; 2) in that they failed to seek assistance when threatened with assaults alleged, and 3) in that they failed to report or seek assistance subsequent to the assaults alleged;

Defense IV 5. Plaintiffs have failed to state a claim against Defendants TURNER and MUSIC upon which relief may be granted.

Defense V 6. Plaintiffs seek to recover against TURNER and MUSIC under a theory of respondeat superior which is not permissible under actions brought under 42 U.S.C. §1983.

Defense VI 7. Eighth Amendment protection, cruel and unusual punishment, does not extend to isolated incidents of assault, robbery and rape as alleged by Plaintiffs. In absence of a showing that these Defendants acted in a manner of deliberate indifference to conditions that would shock the conscience of the ordinary person, Plaintiffs cannot recover under the Eighth Amendment.

Defense VII 8. Plaintiffs have not alleged nor identified a Fourteenth Amendment violation by Defendants, TURNER and MUSIC, and cannot recover.

-2-

WHEREFORE, having answered the Third Amended Complaint of the Plaintiffs, the Defendants, R. V. TURNER and RANDALL MUSIC, deny that they are liable thereto and further demand trial by jury of all issues herein triable as of right by jury.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to David M. Lipman, Esq., LIPMAN & WEISBERG, 5901 S.W. 74 Street, Miami, FL 33143-5186 and William Amlong, Esq., HALL & AMLONG, 524 South Andrews Avenue, Fourth Floor, Fort Lauderdale, FL 33301, by U. S. Mail, this 27th day of November, 1985.

Michael B. Davis, Esquire DAVIS CRITTON HOY & DIAMOND Post Office Box 3797 West Palm Beach, FL 33402
**

JIM SMITH Attorney General
WALTER M. MPCTJJTJTC<
7. Assistant Attorney General
Department of Legal Affairs The Capitol - Suite 1502 Tallahassee, FL 32301 (904) 488-9935

-3-

WHEREFORE, having answered the Third Amended Complaint of the Plaintiffs, the Defendants, R. V. TURNER and RANDALL MUSIC, deny that they are liable thereto and further demand trial by jury of all issues herein triable as of right by jury.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to David M. Lipman, Esq., LIPMAN & WEISBERG, 5901 S.W. 74 Street, Miami, FL 33143-5186 and William Amlong, Esq., HALL & AMLONG, 524 South Andrews Avenue, Fourth Floor, Fort Lauderdale, FL 33301, by U. S. Mail, this 27th day of November, 1985.

Michael B. Davis, Esquire DAVIS CRITTON HOY & DIAMOND Post Office Box 3797 West Palm Beach, FL 33402

JIM SMITH Attorney General

Assistant Attorne
m
Department of Legal Affairs The Capitol - Suite 1502 Tallahassee, FL 32301 (904) 488-9935

-3-

(J3¯IIJ • a.O3«
AdOO 31IJ NOISIAta 1IAI3
S¾JIVJJVlVO3liO ANTHONY LA MARCA, e t a l . ,
v.
R. V . TURNER, e t a l .

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 82-8196-Civ-PAINE>/
ORDER

For reasons r e c i t e d in open Court, i t was ORDERED as follows:
1. P l a i n t i f f s ' Motion to file a Third Amended Complaint is GRANTED nunc pro tune November 14, 1985. The Court makes no p r e s e n t r u l i n g , however, regarding the r e c o v e r a b i l i t y of attorneys' fees or the presence of the State of F l o r i d a as a Defendant for that purpose.
2. Defendants' Jury-Demand i s DENIED. The Motion for further Continuance of Trial is DENIED, without prejudice. Upon t h e i r Motion to Strike, the Court RESERVES. The p a r t i e s are caution-ed that the Court expects that any expert witness will have been made available for deposition before that e x p e r t ' s testimony is tendered to the Court. If there is any issue upon which Defendants require a brief adjournment after the court has begun the t r i a l next week, t h e i r right to adjournment can be further considered at that time.
ORDERED in Miami, Florida, November 25, 1985.

Copies: Walter M. Meglnnis, Esq. David M. Lipman, Esq. William M. Amlong, Esq. Michael B. Davis, Esq.

PE UNITED

IRS
FILE COPY REC'D Q FILED WÍCOURT

DOCKETED 8Y . A&¼JL

CASE NO. 82-8196-CIV-PAINE

1 ANTHONY LAMARCA, MARTIN

SAUNDERS, and EDWIN JOHNSON,
2 individually and on behalf of

all others similarly situated,
3 and DAVID ALDRED, STEVE H.

BRONSON, JR., EDDIE COBB, RON
4 DURRANCE, WAYNE EPPRECHT, MICHAEL
GORDON, and BILLY JOE HARPER,
5

O R D E R

Plaintiffs,
6

DEPARTMENT OF LEGAL AFFAIRS

7

CIVIL DIVISION

R- V. TURNER, Individually, and

FILE COPY

8 RANDALL MUSIC, as Superintendent

ØREC'D Q FILED W/COURT

of Glades Correctional Institution,

9

Defendants.

10

DOCKETED BY .

11

This cause is before the Court on the Appeal from Magistrate`è

i
12
Order and Petition For Emergency Hearing filed by the Defendants

13
R. V. TURNER, RANDALL MUSIC and the State of Florida. The Court

14
has also received the Plaintiff's Response to Defendants' Appeal

i

15
from Magistrate's Order and Petition for Emergency Hearing.

16
The Court has read and considered these submissions of

17
counsel with respect to the ruling made by Magistrate Nimkoff on

18
November 25, 1985. It appears that the ruling is not clearly

19
erroneous. The Magistrate .adequately considered the issues and

20
his ruling is therefore AFFIRMED. Accordingly, it is

21

ORDERED and ADJUDGED that the Appeal from Magistrate's Order

22 and Petition for Emergency Hearing is DENIED.

23

DONE and ORDERED this j^^<d day of December, 1985, in

24 Miami, Florida.

25

UNITED STATES DISTRICT JUDGE

26

JAMES C. PAINE

cc: All counsel of record

AO72 «
(Rev.8/82)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION

ANTHONY LA MARCA, et al..

Plaintiffs,

vs.

CASE NO. 82-8196-CIV-PAINE

R. V. TURNER, et al.,

REPORT AND RECOMMENDATION

Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FILED by`J^-`P D.C.

"The degree of civilization in a

society can be judged by entering its prison"

JAN 0 8 1986

Dostoevskyì/

CLEÍiK. U. S. DIST. CT.

A. PROCEDURAL BACKGROUND

l· GENERAL BACKGROUND l¯. On May 14, 1982, over three and one-half years ago, Anthony LaMarca, then an inmate at the Glades Correctional Institution (hereinafter "GCI") in Belle Glade. Florida, filed

1/ Similarly, our Chief Justice has observed:
"[T]he way a society treats those who have transgressed against it is evidence of the essential character of that society."
Hudson v. Palmer. . U.S. . 104 S.Ct. 3194, 3199 (l984)(Burger, C.J.)

a hancvritten complaint pro se in this Court under 42 U.S.C. §1983, suing-Defendant R.V. Turner, Superintendent of that instit ition. The Complaint contained, inter alia, allegations that fLaintiff LAMARCA was was being subjected to ongoing physic al violence and harassment by other inmates because of his refusal to participate in homosexual activity, and that officials at the institution failed to take any corrective actior to alleviate that situation.
2. On June 14, 1982. this case was referred to me for
further proceedings. 3. On September 21. 1983. Plaintiff LaMarca. now
repreî ented by counsel and joined by three other former and/or presert inmates at GCI. Martin Saunders, Edwin Johnson, and Henry Rosenbaum. filed an Amended Complaint Class Action on behali of themselves and other inmates at the Institution, seekirg to redress physical and sexual assaults and threats of physical and sexual assaults. In the Amended Complaint
2/ Tie case was transferred, pursuant to Local Rule l(f) (Magi: trate Rules of the United States District Court, Southern Distr¯ct of Florida) which provides:
(f) Prisoner Cases Under 42 U.S.C. §1983. A Magistrate may issue any preliminary orders and
conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a District Judge a report containing proposed findings of fact and recommendation for the disposition of petitions filed by prisoners challenging the conditions of their confinement.
3/ Tl e claims of Plaintiff Henry Rosenbaum were severed from this ction by Order of this Court of July 15. 1985.

Plaintiffs sought declaratory and injunctive relief to enjoin Defendants from various practices and inaction which resulted in Plaintiffs', and the proposed plaintiff class, being subjected to violence, threats, and sexual abuse by other prisoners. The four named plaintiffs also sought damages on behalf of themselves. In addition, the Amended Complaint Class Action named Louie L. Wainwright. Secretary of the Florida Department of Corrections as a Defendant. Plaintiffs did not request a trial by jury in their Amended Complaint or in any other related pleading.
4. On November 2. 1983, Defendants' filed their Answer to Plaintiffs' Amended Complaint. Like Plaintiffs, no demand for jury trial was made by Defendants.
5. On April 13, 1984, this Court (Paine. J.) ordered that this case proceed as a class action defined as those persons who are or will be incarcerated at the GCI for purpose of the injunctive relief sought by the named plaintiffs.
6. On August 26. 1985, Plaintiffs filed a Motion for Leave to File a Second Amended Complaint simultaneous with the proposed amended pleading, which was granted by this Court on September 19, 1985, nunc pro tune August 26. 1985. The Second Amended Complaint virtually mirrored the allegations in Plaintiffs' Amended Class Complaint filed,two years earlier alleging that certain practices by Defendant prisoner officials
4/ Louie Wainwright. Secretary of the Florida Department of Corrections has been subsequently dropped as a party defendant. See. Plaintiffs' Second Amended Complaint (filed August 26. 1985).

resulted in Plaintiffs' being assaulted, battered, and/or homosexually raped. Seven additional plaintiffs , all present and former inmates at GCI. were added in the Second Amended Complaint, each of whom suffered the same injuries as the named plaintiffs and the class. These seven additional named plaintiffs sought compensatory damages from Defendant R.V. Turner resulting from his alleged unconstitutional action against them.
7. Randall Music, the present Superintendent at GCI, was added to the Second Amended Complaint as a Defendant, solely for the purpose of injunctive relief since he had replaced R.V. Turner as Superintendent. Music is sued only in his official capacity.
8. On October 8. 1985. Defendants filed a Motion for .More Definitive Statement in response to Plaintiffs' Second Amended Complaint. On October 25. 1985. in response to the Defendants' Motion, Plaintiffs filed a twelve-page, pleading providing Defendants with a factual overview response to the various requests for more information raised in Defendants' Motion.
9. On November 6, 1985. Defendants Turner and Music, pursuant to Rule 38(b) of the Federal Rules of Civil Procedure,
5/ The seven additional plaintiffs added in the Second Amended Complaint are: Cl`) David Aldred, (2) Steve H. Bronson. Jr. , (3) Eddie Cobb, (4) Ron Durrance, (5) Wayne Epprecht. (6) Michael Gordon, and (7) Keith Harris.
Prior to commencement of trial on December 2, 1985. with a written Order following on December 10, 1985. this Court granted Plaintiff Keith Harris1 request to withdraw as a party to this action.

served their "demand for trial by jury on all issues so triable." In their demand for jury trial, Defendants stated "the action is not at issue." Apparently, this was Defendants1 view in light of the fact that Defendants1 Motion for More Definitive Statement was still pending and no answer had been filed yet to the Second Amended Complaint. Defendants further stated that while their "Demand" would ordinarily be contained in their Answer, they wanted to advise parties and the Court at this time of their intent to request a jury trial.
10. On November 13, 1985, Defendants filed a Motion to Continue the trial scheduled for on December 2, 1985. On November 21, 1985. Plaintiffs filed a Memorandum opposing Defendants' Demands for Jury Trial and in Opposition to Defendants' Motion for Continuance.
11. Subsequently, on November 15. 1985,6/ Plaintiffs
filed a Motion for Leave to File a Third Amended Complain^—¯¯¯^fi>**'·*í
along with the amended pleading. Thè¯¯¯THTrd Amended Complaint provides for the dismissal of all claims relating to Plaintiff Keith Harris.; substitutes a new Plaintiff, Billy Joe Harper; cures several typographical errors in the prior pleading; and, according to Plaintiffs, adds the State of Florida as a Defendant solely for the purposes of an attorney fee award, .citing Leggett v. Badger, 759 F.2d 1556 (11th Cir. 1985).
6/ Although the Third Amended Complaint was not filed with the Court until November 15, 1985. Defendants had received a copy of the pleading one week earlier on November 8. 1985. See. Defendants' Motion for Continuance filed November 13. 1985. p. 3.

12. On November 25, 1985, following a hearing on the pending motions, this Court issued an Order which (a) granted Plaintiffs' Motion to file a Third Amended Complaint, nunc pro tune November 14, 1985, without ruling on the presence of the State of Florida for purposes of the recoverability of attorneys fees; (b) denied Defendants' jury demand; and (c) denying Defendants' request for further continuance of trial.
13. On November 27, 1985, Defendants, pursuant to Magistrate Rule 4(a) of the Local Rules of this Court, filed an Emergency Appeal from the November 25, 1985 Order of Magistrate Nimkoff to the United States District Court Judge Paine on grounds that the Magistrate erred (1) in denying Defendants' demand for jury trial; and (2) in denying Defendants' request for continuance of trial.
14. On November 29. 1985, Defendants filed their Answer to Plaintiffs' Third Amended Complaint. On December 2. 1985. Judge Paine denied Defendants' Appeal from Magistrate's Order of November 25. 1985.
15. While not stated in the November 25. 1985 Order, this Court's reasoning in denying Defendants' Demand for Jury Trial is set forth herein.
2. JURY TRIAL DEMAND a. FEDERAL PRINCIPLES REGARDING
WAIVER OF RIGHT TO JURY TRIAL
16. The Seventh Amendment to the Constitution preserves the right of trial by jury "in suits of common law." However, the right to a jury trial, although constitutional, is indeed

waived by a failure to demand it In a timely fashion. Fed. R. Civ. P. 38(b);7/ Cox v. C.H. Masland'and Sons. Inc.. 607 F.2d .
138, 142 (5th Cir. 1979). 8/
17. Specifically, Rule 38(b) ' provides that a demand
for a jury trial of any issue be served within ten days of the
"last pleading directed to such issue."
18. It is further well-settled that if the original
pleadings in an action effectively waive trial by jury under
Fed. R. Civ. Proc. 38(b) and (c), the right to trial by jury of
all matters waived in those pleadings "cannot be later revived
by amending the original pleadings." Walton v. Eaton Corp..
563 F.2d 66, 71 (3rd Cir. 1977); Hostrop v. Board of Junior
College District No. 515, 523 F.2d 569. 581 (7th Cir. 1975);
Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045,
1049 (9th Cir. 1974); Lanza v. Drexel· and Co.. 479 F.2d 1277,
II Fed. R. Civ. P. 38(b) states:
The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
8/ Rule 38(b) provides:
(b) DEMAND. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.

1310 (2nd Cir. 1973); Williams v. Farmers and Merchants Ins. Co. , 457 F.2d 37, 38 (8th Cir. 1972); Connecticut General Life Ins. Co. v. Bresl·ln. 332 F.2d 928. 931 (1964); 9C Wright and Miller. Federal Practice and Procedure §2320; 55. Moore Federal Practice. ¶¶38-39[2].
19. While a jury trial may be demanded for any "new issues" within the meaning of Rule 38 raised by the amended pleadings, the "amendment does not revive a right previously waived to demand jury trial on the issues already framed by the original pleadings." Walton v. Eaton Corp.. supra, 563 F.2d at 71-72; Williams v. Farmers and Merchants Ins. Co.. supra, 45 7 F.2d at 36 and cases cited therein.
20. The various Circuit Courts of Appeals generally have reasoned that amended pleadings which concern the "same general issues" do not raise "new issues within the meaning of Rule 38(b) even if they differ from the earlier pleadings in some particulars." See, Walton v. Eaton Corp.. supra. 563 F.2d at 72; Hostrop v. Board of Junior College District No. 515, supra. 523 F.2d at 380-81; Ttixl·er Brokerage Co. v. Ralston Purina Co.. supra. 505 F.2d at 1049-50; Lanza v. Drexel and Co.. supra. 479 F.2d at 1309-11; Moore v. United States. 196 F.2d 906, 908 (5th Cir. 1952).
b. APPLICATION OF PRINCIPLES TO THE FACTS IN THIS CASE
21. On September 21. 1983. Plaintiffs filed their Amended Complaint Class Action. On November 2. 1983. Defendants served their Answer. Neither party filed a Request for Jury Trial at

that time. On November 6, 1985, over two years after filing their Answer to Plaintiffs' Amended Complaint Class Action. Defendants served their Demand for Jury Trial.
22. The Court finds that Defendants' failure to comply with Rule 38(b) in not demanding a jury trial within ten days of the filing of their Answer on November 2, 1983, constituted a waiver of their right to a jury trial. U.S. v. 110 Bars of Silver Coins, 508 F.2d 799 (5th Cir. 1975) cert, denied 423 U.S. 861 (1975); McCorstln v. U.S. Dept.¯of Labor. 630 F.2d 242. 244 (5th Cir. 1980); 9 Wright and Miller. Fed. Practice and Procedure. §2320 at P. 92 (1972) ("fT]he demand for jury trial must be served within ten days after service of the answer.").
23. Indeed, in their November 6, 1985 Jury Trial Demand. Defendants state n£ reasons why they did not timely request a jury trial following their November 2, 1983 Answer, but merely identify issues pertaining to Plaintiffs' Second Amended Complaint filed on September 21. 1985.
24. While this Court, under Fed. R. Civ. Proc. 39(b).9/ may have authority to grant Defendants' demand for jury trial notwithstanding their belated request, none of the factors identified by our Circuit which would justify a tardy request are present here. See. Parrott v. Wilson. 707 F.2d 1262. 1267
9/ Rule 39(b) states In part: fN¯lotwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury on any or all issues.

(11th Cir. 1983) (Trial Court did not abuse its discretion in denying Defendants belated jury request). Factors identified by the Eleventh Circuit in Parrot v. Wilson, supra. 707 F.2d at 1207 to be reviewed by this Court in evaluating whether to grant Defendants' belated request for jury trial include:
(1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would result in a disruption of the court's schedule or that of the adverse party; (3) the degree of prejudice to the adverse party; (4) the length of the delay in having requested a jury trial; and (5) the reason for the movant's tardiness in requesting a jury trial.
25. Applying these factors to Defendants' untimely jury trial request support the denial of Defendants' belated request. First, the complex issues involved in this litigation regarding the constitutionality of conditions at the Glades Correctional Institution are most typically not subject to jury trials. Second, granting Defendants' motion would certainly prejudice Plaintiffs' trial preparation. Third, this is not a situation where a party makes a belated jury trial request several days, weeks, or even months following their last pleading. Indeed, Defendants' request was made over two years following their answer to Plaintiffs' Amended Complaint Class Action and less than one month prior to the beginning of the December 2, 1985 trial. Finally. Defendants' offer no reason for their tardiness and our Circuit and its predecessor has repeatedly rejected "mere inadvertence on the movant part" as a basis to allow a tardy jury trial request. Parrot v. Wilson, supra. 707 F.2d at 1267; Rhodes v. Amaril·lo Hospital District.

654 F.`2d 1148, 1154 (5th Cir. 1981); Mesa Petroleum Co. v. Conlgllo. 629 F.2d 1022, 1029 C5th Cir. 1980).
26. Under Rule 38(b). pleading "amendments not introducing new issues will not give rise to a jury trial." Guaraando v. Estell·e. 580 F.2d 748, 752-753 (5th Cir. 1978). A party's failure to demand a jury trial waives his "right as to all issues relating to the general area of dispute." Walton v. Eaton Corp. supra, 563 F.2d at 66. In rejecting the claim that a new issue had arisen in the amended pleadings which revived the right to request a jury trial, the Walton, supra, 563 F.2d at 73, Court reasoned:

Both "amendments" pleaded facts which had not been alleged in the previous complaints, but neither raised a "new issue." since they did not change the "basic issue" in the_,case or the "general area of dispute."

27. The only arguable new issues raised by Plaintiffs1"'"/" / ^

Second and Third Amended Complaints would relate to the

additional plaintiffs.

However, since evidence pertaining

10/ The Amended Complaint in this action, filed over two years ago. raises claims that inmates at Glades Correctional Institution were being assaulted, battered, and/or homosexual raped because:
2. There is, within this institution, a _ pervasive risk of harm to inmates. Prisoners, are repeatedly threatened, beaten and sexually abused by other prisoners. This occurs with the knowledge of the institution staff and is due to the staff's unwillingness or inability to prevent it.
(Footnote continued to next page)

to the injuries suffered by additional plaintiffs while at GCI would be introduced irrespective of the pleading amendment as support for Plaintiffs' injunctive relief, no new issues are raised. Hostrop v. Board of Junior College District No. 515. supra (All the evidence which might be introduced under amended claims was probative evidence of pre-amended claims this additional count did not introduce a new issue.); Lanza v. Drexel and Co.. supra, 479 F.2d at 1310 (Jury trial waived "as to all issues relating to the general area of dispute."").
*****************
28. Having considered all of the evidence presented over a 10 day trial held in United States District Court for the Southern District of Florida in Miami, Florida on December 2-6, 9-13, 1985; heard testimony of 27 witnesses and reviewed a series of Exhibits and depositions of an additional series of inmate witnesses; requested, received and closely reviewed extensive post trial submissions; and heard oral argument of counsel on December 27, 1985. the Court pursuant to Rule 52(a) F.R.C.P., now issues its Findings of Fact and Conclusions of Law.
(Footnote continued from previous page)
3. There are no protective measures available to inmates of GCI that do not result in the inmates' confinement under punitive, degrading and inhuman conditions.
Amended Complaint at Pgs. 1-2. These allegations were denied by Defendants in their Answer filed November 2, 1983. Plaintiffs' Second Amended Complaint, served August 26. 1985. like their Third Amended Complaint, is based on these identical allegations.

* ``

,

. *

B. GLADES CORRECTIONAL INSTITUTION 1. HISTORY
29. Glades Correctional institution is one of thirty major prison facilities in the State of Florida. (Turner) As the second oldest prison in Florida, the development of Glades Correctional Institution reflects the recent history of the State. (Swanson, Pg. 36¯). The State of Florida acquired the site where the present institution is located through land acquisitions from delinquent tax payers under the Depression Era Murphy Act. (Ibid). Built in l93`2. the facility began its operation and was known as State Prison Farm No. 2. (Turner). Located in agricultural western Palm Beach County, the facilities' inmates grew fresh vegetables for the three state institutions: Florida State Prison, Chattahoochee State Hospital, and the Work Farm. (Ibid, Pgs. 36-37).
30. Throughout the first several decades of its existence. GCI was a black segregated facility whose inmates worked in .various agricultural endeavors. (Turner). In the early 1950's, the institution moved into the open dormitory buildings at its current location. A federal mandate integrated.the all-black prison. (Swanson, Pg. 37).

2. OVERVIEW

31. Defendant R. V. Turner held the position of

/

Superintendent of GCI from mid-1976 through his retirement on

August 31, 1984. (Turner). Ron Jones was Superintendent in an

interim capacity from September 1. 1984, through October 15,

1984. Thereafter, present Superintendent Randall Music served as Superintendent. (Swanson. Pg. 38). Mr. Music's last day as Superintendent coincided with the last day of trial, December 13. 1985. (Music)
32. As of July 29-31, 1985, 875 inmates were incarcerated at GCI. (P.Ex. 7) (Prison Inspector Report). Approximately 60% of these inmates were Black; the remainder were White or Hispanic. (Ibid.)
33. While Superintendent Music estimated the Hispanic population at 7% to 10%, records reflect that during an earlier period germane to this litigation, the Hispanic population was apparently even higher. D.Ex. 7 (Supt. Monthly Report of November, 1981. Pg. 2) ("Potentially serious management problems may develop due to large contingent of Latins in population.")(emphasis added). Because of DOC's general, although not absolute policy of incarcerating inmates as close to their home areas as possible, GCI draws many of its inmates from the South Florida area. (Brierton. Pg. 42) See, also, (Swanson, Pg. 129) ("Superintendent Music said that GCI seemed to have the function of taking care of anything in South Florida that no one else can handle, that it has become the catch-all for the Southern region."). During the Turner administration, 65% to 70% of those incarcerated were "close custody" prisoners. (Turner)
34. Inmates are housed in four open dormitories at GCI. These dormitories are referred to as Dorm A. B. C and D. Dorm A and D are the larger dormitories at any Riven time housing
_IA_

approximately 200 to 300 inmates. Dorms B and C are somewhat smaller and have a capacity to house approximately 70 to 80 inmates. (Swanson. Pgs. 112-113) The dormitories are arranged in the same manner insofar as inmate bunk arrangements. In A and D Dorms there were three rows of 20 bunk beds on each of the two wings within a dormitory. In B and C Dorms double bunks are also arranged in three rows. "Dorm E is an honor dorm, which is somewhat different from the others.
35. In the front of each dorm there is a doorway. Behind the doorway is a screened area in which an officer is situated. This area is separated from all contact with the inmates by a cage, which is referred to as a "wicket." (Swanson. Pgs. 111-112). There are two dayrooms within the four main dormitories. On one side of •the dayroom is a television and on the other side are game cables. (Swanson. Pg. 138). At the end of the dorm on the far side are the showers. In the shower area there are also urinals, washing and bath facilities. The shower areas are obscured from view if an officer is stationed in the "wicket." Se_e. (P.Ex. 40, 41 and 42), (drawings of bunk,¯ shower, dayroom and confinement areas by Dr. Swanson). See also. D.Ex. la-3c. (Composite photographs)
C. THE CONTEXT
36. The individual named Plaintiffs' damage claims can be
analyzed only within the context of the general operational policies, practices, conditions and events existing at the general time period in which their claims arise. Disparate

factors - ranging from wholesale manufacture of prison wine and regular screenings of sexually explicit videotapes to a heterosexually starved audience of inmates, to the maintenance of an ill-assorted guard corps whose members the inmates perceived as regularly trafficking in contraband, extortion, and neglect - converge into a tapestry that forms the backdrop for Plaintiffs' claims. A discussion of these contextual realities follows.
1. AN INSTITUTION
a. OFFICIAL DOCUMENTATION 37. Several written documents provide critical evidence as to the general nature and depth of security problems •existing at GCI during the relevant time period of Plaintiffs' damage claims. (1980-1984).
C D TURNER'S ACKNOWLEDGEMENTS TO SECRETARY WAINWRIGHT 38. Conditions at GCI were known to Superintendent Turner. On July 16, 1981, Turner wrote to the Secretary of Florida's Department of Corrections Louie L. Wainwright and informed him of the following:
On an almost daily basis I feel that our security staff is simply being tolerated bv the inmate population rather than being in control of the operation of the institution, (emphasis added)
CD.Ex. 13, Pg. 2)
39. Similar acknowledgement of severe security problems were provided in an earlier correspondence from Turner to the

Secretary on March 15, 1979. (D.Ex. 14) (Vacancies of 1/3 of
total COI's staff is "dangerous to the staff and inmate
population, [emphasis in originall Only two officers assigned
to 220 inmate dorm for supervision of inmates.") Turner
stated:
Currently our count is in the neighborhood of 800. Approximately 400 of these inmates are close custody. I am apprehensive about our ability to control this population under the circumstances, (empha¾is added) 11/ (D. Ex. 14)
11/ It is noteworthy that during this general period when Turner recognized the severity of the problems at GCI. D.Ex. 14 ("I felt that it was necessary to bring you up to date on this critical situation") the institution received its first accreditation in 1980 and subsequently again in 1984 (Mulally). Indeed, at the time of the first accreditation and during that general time period of Turner's acknowledgement to Secretary Wainwright of severe and dangerous security problems. GCI was given the second highest score for an institution in the State. (Ibid.) (Swanson. Pgs. 278-279).
The accreditation process was explained at some length by Ray Mulally, a Department of Corrections (DOC) employee in charge of securing institutional accreditation in Florida. (D.Ex. 6 ) . Plaintiffs' correctional expert. Dr. Richard Swanson, noted that during litigation concerning conditions at the Florida State Penitentiary (FSP) was receiving its accreditation while at the same time the trial court was concluding that conditions and practices were unconstitutional. Further, notwithstanding the serious and long-standing system-wide litigation of Costel·lo v. Wainwright in which the United States District Court for the Middle District of Florida has consistently found practices and conditions which offend the constitution, literally all institutions remain accredited. (Swanson. Pgs. 278-279; 410-412).
For these reasons, the Court finds the GCI accreditation as having virtually no significance to this litigation.

(2) THE 1980 PALM BEACH COUNTY GRAND JURY PRESENTMENT AND FINAL REPORT OF THE INSPECTION GENERAL (1980)
40. In 1980, the Palm Beach County Grand Jury issued a presentment on January 30. 1980. The apparent impetus for the Grand Jury Presentment related to issues involving a audit and inventory relatin¾ to shortages of certain food products. However, the presentment also raised serious issues of inmate security germane to this case. •Matters relating to the primary issues raised by the Presentment which concerned discrepancies in audit and shortages of meat and food, raised additional general matters concerning a breakdown of proper prison management: shortages were caused, among other reasons, through theft by inmates and staff. (P.Ex. 4, Pg. 3 of Grand Jury Presentment). Additionally, and more germane to the * issues raised in this case, is the reporting through various testimony before the Grand Jury of problems relating to "lax security precautions." Testimony of staff and inmates revealed a free flow of contraband "including drugs, alcohol, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI." (Ibid, at Pg. 6 ) .
41. Approximately eight (8) months later, the Department of Corrections Office of Inspector General conducted its management review of GCI. (P.Ex. 4, Tab B ) . The Office of Inspector General, under the direction of David Brierton, was established in 1979 (Brierton. Pg. 47) and acts as an independent auditor and investigative arm of DOC (Brierton, Pgs. 6-7).
-18-

42. The Inspector General Report observed and corroborated similar issues concerning a breakdown of security as those identified in the Palm Beach County Grand Jury Presentment. The Inspector General found, among other matters, that
"[supervision in all three general areas of the compound must be described as serious, due to the lack of security personnel. Vacancies continue to be a serious problem. The dormitory situation is critical as there have been occasions when one dormitory officer is responsible for supervising more than one dorm at the same time.
CP.Ex. 4. Tab B, Pg. 4 "Executive Summary").
43. Additional reporting of increase "inmate on inmate" and "inmate on staff" assaults reflected an increase over a past six month period (Ibid, Pg. 5 ) . These assault trends, both inmate on inmate and inmate on staff were reflected elsewhere. (Ibid. Pgs. 20-21. ¶ 9.1 "Conclusions and Recommendations").
44. Moreover, the security problems were exacerbated by low morale GCI staff. An employee survey conducted by the Inspector General revealed that staff members did not feel that there were enough people in their unit to perform their duties properly, and when asked the question. "Did you receive instructions or guidelines on the responsibilities and supervisory functions of your job when you became supervisor?." they answered with a "resounding no." (Ibid. 1f 29.1. Pg. 33).
(3) THE 1983 INSPECTION REPORT OF THE OFFICE OF THE INSPECTOR GENERAL
45. Approximately three years later, on September 19-21.

1983, DOC's Office of Inspector General conducted a subsequent investigation at GCI. In that report, the Inspector General noted "we fail to understand and appreciate laxity, in some instances, the disregard for established procedures." CP. Ex. 6, Pg. 2 ) . In reviewing conditions at Belle Glade, the Inspector General offered the following overview: "In conclusion, the team found a need for a great deal of improvement at Glades Correctional Institution." (Ibid.). See also. Clbid. Pg.9), (Security problems relating to an inmate armed with a homemade knife threatening a correctional officer); (Ibid. Pg. 22)("Inmate personal property is in no way orderly or neat. Homemade lockers are abundant.").
b. MAJOR INCIDENTS (1) THE BARRETT INCIDENT 46; On April 15. 1984. at approximately 6:30 P.M.. a fight broke out. in C Dormitory involving several inmates. As a result of the fight, a state of confusion developed at GCI. Lt. James Schrader. the OIC (Officer in Charge) requested that off duty personnel be summoned to the institution. Lt. William Barrett, the acting Chief Correctional Officer; Lt. L. A. Peters, GCI's Internal Inspector; and Sgt. Ricky Hayes, were summoned. Those three individuals, were attending a local festival in Belle Glade known as the "Black Gold Festival". All three officers admitted they had been drinking alcoholic beverages. Barrett and Hayes had their faces made up to resemble clowns for the festival. Lt. Barrett and Sgt. Haves

arrived immediately and proceeded to the Gate House. Sgt. Barbara Wiesel, the Main Gate Supervisor, advised that there was an uncontrolled situation in C Dorm. Sgt. Wiesel reported at the time, that she noted a strong odor of alcohol, and noted that Lt Barrett appeared to be absolutely unsteady on his feet and constantly leaning against the counter. Lt. Barrett requested that Sgt. Wiesel give him a shotgun and fifteen rounds of ammunition. Lt. Barrett loaded his shotgun. Lt. Barrett approached the C Dormitory. (Swanson. Page 208-210); (P. Ex. 9, Pgs. 1. 6 - The Special Investigation Entry No. 84-37911).
47. At that time. Lt. Barrett responded in slurred speech to Lt. Pipta. that "I want to teach these mother fuckers who runs this Place". As Lt. Barrett remained outside, and Lt. Pipta entered C Dormitory and found the inmates sitting on their bunks and the situation otherwise calm. Barrett, while armed with a shotgun began yelling obscenities to the inmates and making threats such as "I'm going to kill you mother fuckers." Lt. Barrett then ordered the inmates brought out of the dorm. Inmates Robert Whidden and William Allen were ordered to lay face down on the sidewalk at which time Lt. Barrett smashed them in the back of the head with the shotgun and continued to "jab them in the back of the neck with the barrel and continued yelling at them." Inmate Allen's head was split open after being struck by the stock of Lt. Barrett's shotgun. A third inmate, Westley Smith, was also struck. Two additional inmates. Jimmy Daniels and Melvin Kraft, were

brought out from the dorm and kicked by Lt. Barrett. Following the incident. Superintendent Turner was made aware of what occurred. Turner did not notify the Prison Inspector because he "did not feel that the. situation warranted notification of a Prison Inspector" (Ibid., Pg. 5). The Inspector General, David Brierton, through his office, did conduct a thorough investigation (P.Ex. 9 ) . The Inspector General's office concluded that Lt. Barrett had committed various prison Rule violations. (Ibid, Pg. 6-12)s Additionally, Lt. L. A. Peters, GCI's Internal Prison Investigator, was also found to have committed additional prison infractions. (Ibid.. Pg. 10-11).
48. Plaintiffs' correctional expert, Dr. Richard Swanson. corroborated the findings of the Prison Inspector's Office in concluding that senior officer Lt. Barrett had made gross errors in judgment. Dr. Swanson observed that the violations were so gross that immediate action should have been taken to at least suspend Lt. Barrett from the operation of a prison.
12/ Although not directly related to Turner's management of the personnel aspects of the Barrett incident. Dr. Swanson referred to a transcript of a tape recorded conversation between Turner and an inmate, William Allen, in which Allen described the situation that led up to the disturbance of that precipitated Barrett's presence.
In it. it's very clear the inmate is talking about the wide use of alcoholic beverages within the institution. In talking about this, it's clear from the conversation that's recorded in these pages, that it is not a surprise at all to
(Footnote continued to next page)

49. Lt. Barrett remained functioning as a correctional
officer for at least a full week following the April 15. 1984,
incident. (P.Ex. 9, Exhibit 2)(Last page indicating the
signature of William Barrett of April 23. 1984 on Incident
Report). 50. Plaintiffs1 expert. Dr. Swanson. noted his opinion
that Superintendent Turner appeared to unduly delay in
suspending Lt. Barrett. This was particularly poor management
in the context of the egregious nature of the incident
CSwanson, Pg. 329)("His FTurnerl initial reaction seemed to be
oddly mild."); (Swanson, Pg. 2ll)("The violation was so gross,
that it seems to me that immediate action should have been
taken to at least suspend the Lieutenant from the operation.
Some action ultimately occurred, but took considerable amounts of time.")13/
(Footnote continued from previous page)
Superintendent Turner that alcohol and drugs are available on a widespread basis in the institution.
(Swanson, Pg. 212)
13/ Indeed, Florida law permits an immediate suspension of a State employee such as Lt. Barrett in an incident such as this. See. Florida Administrative Code § 22A-10.046, which provides as follows:
In extraordinary situations, such as when the retention of a permanent career service employee would result in damage to property, would be detrimental to the best interests of the State, or would result in injury to the employee, a fellow employee, or some other person, such employee may be suspended or dismissed immediately, provided that written notice of
(Footnote continued to next page)

(2) THE ILLEGAL ACTIVITIES OF OFFICER DIXON 51. In mid-1974 the activities of a correctional officer, Clarence Dixon, were investigated by various authorities including the Inspector General's Office of the Department of Corrections and the Palm Beach County State Attorneys Office. Evidence related to Mr. Dixon's trafficking in drug contraband and extortion of inmates and their families. This documented investigation corroborates other inmate allegations of wholesale staff corruption with regard to the extortion of inmates, and the free flow of contraband within GCI. 52. The investigation resulted in Mr. Dixon's being arrested and charged with three counts of bribery. (P.Ex. 10. Tab B. Pg. 5, Special Entry #84-4647). Moreover, the investigation of Officer Dixon further demonstrates the careless manner in which Dixon had been screened for employment. Prior to his employment at GCI, Dixon had been terminated from Paholkee High School following the Broward County school board's obtaining a revocation of Dixon's teaching certificate. While at Pahokee. Dixon had collected $75 fees from graduating students to introduce them to colleges, had taken them to the campuses, but had failed to make any arrangements for introduction CP.Ex. 10, Tab C, Memo of March 6. 1984); (Swanson. Pgs. 222-224).
(Footnote continued from previous page) such action is furnished to the employee within twenty four hours.
Superintendent Turner himself was suspended immediately in a similar context for an incident which occurred on May 6, 1971. See, (P.Ex. 1. Tab D) (Letter of May 7. 1971 from Louis L. Wainwright to R. V. Turner).
-24-

(3) LARRY PRYOR

53. The assertions of Larry Pryor, while offering less

conclusive credibility than the external investigative reports

of Lt. Barrett and Officer Dixon, nonetheless reveal additional

evidence of wholesale staff corruption. Pryor worked as an

informant-enforcer for various correctional officers, who

either, permitted him or directed him to harass other inmates (Deposition of Pryor. Pg. 35).14/

54. Pryor worked with several officers (Ibid, Pg. 35).

When Pryor indicated that he was going to do something about

inmate Eddie Cobb. Pryor was told by Lt. Barrett that whatever

he chose to do should be done on Barrett's shift (Ibid. Pgs.

39-40). Pryor understood that to mean that if he took any

action against Cobb on Barrett's shift, he "wouldn't go to jaiL

*

or get prosecuted foe it." (Ibid.. P¾. 17). Following a fight

with Cobb in which Pryor stabbed him, Pryor was put in a

14/ At the commencement of his testimony, Pryoc indicated that he had been harassed by officials from the Department of Corrections at the Florida State Penitentiary, at Glades Correctional Institution, and at DOC's Dade Correctional Institution over a period of several days prior to being transported to Miami for purposes of offering his testimony. While this Court makes no conclusive findings as to whether Pryor in fact was threatened by DOC officials due to his impending testimony, Pryor's earlier deposition testimony was accepted by this Court pursuant to Rule 32(a)(3)(E) Federal Rules of Civil Procedure.
Following Pryor's accusations that he had been threatened by DOC officials, he was appointed private counsel by this Court and upon counsel's advice Pryor chose at trial under the Fifth Amendment to refuse to answer any self-incriminating questions.

confinement cell until "things blowed over." but was never given any disciplinary report CDR) for the incident. (Ibid. Pg. 19).
C. THE FREE FLOW OF CONTRABAND AND EXTORTION 55. A distinct picture of a wide range of free flowing contraband into GCI emerges from independent and corroborative sources of information and record evidence. The contraband includes: drugs, alcohol, weapons and extortion activities flowing from this llegal traffic. 56. Dr. Swanson, Plaintiffs' correctional expert, observed that '.'little or no effort was taken to control illicit activity" resulting "in readily available contraband" (Swanson, Pgs. 49, 326) including "drugs, alcohol and weapons to inmates apparently upon demand." (Ibid. Pg. 50).t The free flow of contraband
-i
(Swanson. Pg. 121) seemed to be common knowledge; "people carried knives, people smoke dope without worrying or trying to hide it from officers" and the staff was "actively involved in these illicit activities." (Ibid.) as well as actually promoting the influx of contraband. (Swanson. Pa. 199). Swanson's conclusion, with which the Court agrees and so finds, provides an unmistakeable pattern of free flow of contraband, is based upon ccrroborative evidence including: (i) written documentation . as well as by inmate testimony
15/ See, e.g.. (P.Ex. 4) (Palm Beach Grand Jury Presentment. Pg. 6) ("Testimony of inmates and some correctional personnel
(Footnote continued to next page) 16/ (Pryor. Dep. Pg. 12) (Selling of marijuana by Pryor); (Ibid. Pg. 33) (access to knives by Pryor - "I have so many
(Footnote continued to next passe)

2. FAILURE TO PROPERLY SUPERVISE PERSONNEL AND MANAGE INSTITUTION
a. STAFF TRAINING
(1) WEAPONS
57. One barometer of poor staff training can be gleaned
from internal GCI records. GCI incident reports revealed
officers CP.Ex. 33) lack of familiarity with weapons.
(Swanson, Pg. 135). This opinion of Plaintiffs' expert was
also expressed to him by Lt. Peters in an interview and was not
rebutted at trial. (Ibid.) Peters also noted that a recently
implemented weapon system developed under Superintendent Music
"may" solve some of the weapon problem. This system requires
officers to first demonstrate some qualification with a weapon
prior to obtaining it. (Ibid., Pgs. 135-136).
(Footnotes continued from previous page)
15...indicate marijuana and other drugs are available to inmates due in a large part from lax security precautions. Alcohol use and its manufacture by the inmates' ingenuity also appears prevalent; Peters' investigation of 20 gallons of "buck" (inmate home-made wine) (Peters); (P.Ex. 4) (Management Review of GCI, "Conclusions and Recommendations; ¶ 10.1 40 disciplinary reports for "Consumption of Intoxicants" durina 1-year period); (P.Ex. 10) (Extortion and drug activities discussed in the Dixon matter); (P.Ex. 9) (Swanson, Pg. 212) (inmate access to alcohol discussed in the Barrett incident); (P.Ex. 6, Pg. 9 (Prison Inspector Report) (laxity in security, inmate in possession of homemade knife.)."
16...knives."); (Swanson, Pg. 57) (drugs, liquor available); <Swanson, Pg. 71) (joints smoked in front of guards); (Ibid) (inmates "strapped to the max" at GCI with knives); (Swanson. Pg. 77) (availability of dope and wine); (Ibid) (protection rackets involving dope and wine; (Ibid. Pg. 78) (staff afraid of inmates armed with knives and shanks; (LaMarca) (inmates had money from selling reefer, making wine and weapons; (Ibid) (LaMarca given knife by officer to protect himself; (Gordon) (blacks ran drugs in GCI); (Epprecht) (free flow of drugs and alcohol at GCI.

58. Problems with improper training and use of weapons ranged from the Barrett incident to day-to-day incidents of problems with weapons by staff. (P.Ex. 33) (Incident Reports).
(2) STAFF OUT OF CONTROL 59. The Barrett-Dixon incidents underscore the day-to-day operation of GCI with its staff not controlled by Superintendent Turner. Staff morale was low. (P.Ex. 4, Management Review of GCI. 1! 29.1. Pg. 33) (Employee Questionnaire reflected that staff believed (i) not enough officers in unit to do job right and (ii) insufficient instructions and guidelines given when officers became supervisors). Turnover was high. (D.Ex. 14) (Turner letter to Wainwright) (Critical situation of 1/3 of staff vacancies); (P.Ex. 3-9) (Summary statistics of turnover rate) (Swanson. Pg. 184-165.); (P.Ex. 31) (Superintendent Monthly Reports reflecting turnover). Officers worked excessive hours and often two shifts. (P.Ex. 39) (Swanson. Pgs. 184-188). 60. A direct result of a staff which was inexperienced, over-worked, under-educated, ill-informed, insecure, and otherwise unable to protect inmates under their charge (i.e. reluctance to report rapes) is the general climate of a facility with a high security risk. (Swanson. Pg. 197)
b. FAILURE TO SUPERVISE STAFF 61. Directly related to the individual raping and assaults of the named plaintiffs was the lack of proper staff supervision due to Defendant Turner's failure to station the officers properly.

62. As Lt. Peters admitted, due to the (i) sheets, clothes and personal lockers hanging from the bunks CSwanson, Pg. 318); (ii) the obstruction of a second level of bunks in the middle row of beds (Ibid). an officer's view from the cage or wicket in which he was stationed was obscured. (Peters) The view from the wicket into the shower area was even more obscured. (Swanson, Pg. 113) Lt. Peters, the Chief Investigative Officer during the Turner administration, admitted the lack of any clear vision to the shower area by an officer stationed in the wicket because of the various obstructions. (Peters)
63. While Peters knew that officers were supposed to be on constant patrol within the dorms, this did not take place. (Peters) Moreover, and even more seriously, Turner could recall no action ever taken against an officer - by reprimanding, suspending, or otherwise disciplining - for failure to patrol the dormitories. (Turner)
C. NO PROCEDURE FOR INVESTIGATING RAPES 64. As discussed in greater detail, infra. 1182. Lt. Peters, the Chief Internal Investigator at GCI, candidly recognized that no procedure ("standard operating procedure") existed in which to investigate rapes or alleged rapes. No standard interview process, no standard polygraph procedure, no standard rectal examination, no psychiatric examination, and no standard reporting to any law enforcement authority occurred. (Testimony of Peters and Turner). No such policy was ever written. (Ibid)

J
65. Indeed, Defendants' own witness. Inspector General Brierton. opined that at the very minimum: (i) medical evidence should be secured; (ii) a full statement taken from the alleged victim, and Ciii) the matter should always be referred to a local prosecutor. (Brierton, Pgs. 109-111) These steps were not followed. (Peters); (Saunders. Pgs. 556-557); (Aldred, Pgs. 812-813); (Harper. Pg. 746).
66. This lack of any procedure relating to the investigation of rapes resulted in the prosecution of only one rape in the entire Turner administration. Moreover, no rapes were ever reported by GCI authorities in any of the massive amounts of internal documents generated from the institution. (Swanson, Pg. 15OK17/
67. The Court is convinced that the lack of investigative procedure led to an atmosphere where inmates could rape other vulnerable inmates without concern of beina detected or deterred.
(d) THE LAWSUIT 68. During the early stages of this lawsuit in 1982. this Court took testimony from Plaintiff LAMARCA (Swanson, Pg. 258).
17/ Several of the plaintiffs, who have alleged that they were raped, also reported that they had informed the correctional officers of the violation. See. Aldred. infra. 11124; Saunders. infra, 1(154; and Harper, infra. 1(164.
Apparently, in the case of Saunders and Aldred that information was never relayed to any higher authority other than the Lieutenant to whom each personally reported his rape. As to Harper, the Court reviews his reporting elsewhere. Infra, ¶I64.

LaMarca provided an account of other inmates who had been abused or otherwise violated (Ibid, Pg. 259). Counsel for Defendants, Mr. Belitsky of the Attorney General's Office and Assistant Superintendent Arline, were present during the course of those proceedings (Ibid). The Court was assured by Messrs. Belitsky and Arline that a full investigation of Plaintiff's allegations of additional inmate violations would take place (Ibid, P R . 260).
69. Not only did it become apparent that no investigation occurred when no response was forthcoming from Defendants, but Defendant Turner testified that he was totally unaware that these assurances were made to the Court and that he was
completely unaware even of the circumstances of this lawsuit until the recent pre-trial activities (Turner). 18/
-ftr. Simply, the point is that this lawsuit, unquestionably raising matters of grave concern involving allegations of the most degrading violations to Plaintiffs, somehow got lost between the rather large "cracks" of Defendant Turner's management system. This account serves merely to underscore Plaintiffs' position that GCI, under the Turner administration. was an institution not under the control of that Defendant.
18/ In connection with a Return to Order to Show Cause filed under a certificate of service dated October 12. 1982. Lt. Peters executed an affidavit addressing the issues raised by
the initial pro se complaint filed by Anthony LaMarca.
Superintendent Turner was a party to the action at that date The third paragraph of the affidavit reads:
Be it also known that this affiant has prepared this affidavit with full knowledge and sanction of all parties named as Defendants in the above referenced case number.

3. THE LACK OF THE MOST ELEMENTARY

PROCEDURES TO MINIMIZE THE LIKELIHOOD

OF RAP INGS AND ASSAULTS

__

a. KNOWLEDGE: THE INDICES OF RAPE THAT A PRUDENT ADMINISTRATOR WOULD DISCERN

71. It is clear to this Court that various indices, when considered in combination, should make it readily discernible to any prudent prison administrator that inmate rapes are occurring. The corollary, of course, is that armed with %the knowledge that rapes were occurring, the failure to promulgate and adhere to the most rudimentary procedures constitutes a deliberate indifference toward inmate security. While none of the indices alone would reasonably suggest the occurrence of rape, the combination of these indices, as in this case, raises an issue of knowledge or constructive knowledge on behalf of Defendant Turner. The Court now reviews these indices.
72. First, the free flow of contraband, and assaultive inmate-on-inmate and inmate-on-officer behavior previously reviewed, provides a picture of an institution marred byviolence and illegal activity. Plaintiffs' experts. Dr. Swanson and Dr. Caddy, as well as Defendant Turner and Inspector Brierton. all agreed-that rapes in prison are a manifestation of acts of violence and domination, in contrast to acts of sex. See, infra. 11117. Thus, homosexual rape is but an additional and inevitable, albeit extreme, discord in the cacophony of inmate assaults, extortions, drunkenness, drug

•

-

\

use, and armament that characterized GCI during the tenure of Defendant Turner.
73. Second, the consistent and disproportionate number of young white inmates who "checked in" to protective confinement further corroborates the white plaintiffs' recollection of terror on the compound. Consider, for example, the following statistical snapshot of the protective custody population in mid-September, 1983:

PROTECTIVE CONFINEMENT POPULATION 19/

WHITE 20

BLACK
1

TOTAL 21

CP.Ex. 6) (Inspection Report of September 19-21. 1983)

74. The volume of the warning that such statistics should have signaled was amplified by the punitive nature of protective confinement during the 1980-1984 period. The inmates who checked in were very distressed; otherwise they would not have been checking in (Caddy. Pg. 1265). ¯**^¯¯¯ ¯'
75. Moreover, the impact of the statistics is further underscored when considered in the context of the punitive nature of protective confinement, at least during the period of 1980-1984. Conditions in protective confinement were punitive;

19/ Whites constituted a minority of the prison population (397 of 833 inmates) and those figures considered Hispanics as Whites. (P.Ex. 6)

)
the cells lacked adequate ventilation (P.Ex. 5. Memo of September 22, 1985)(Prison Inspection Report); the lighting was poor (Ibiçi); two, three four and five inmates were placed in the cells containing two bunks (Ibid): (Testimony of Eddie Johnson, Greg Zatler); the cells were infested with roaches and vermin (Ibid); inmates in protective confinement were taunted by others outside of the confinement area (Swanson, Pgs. 123. 139); protective confinement inmates often were housed with administrative detainees (Turner); no exercise was offered; showering was allowed only three times per week (Eddie Johnson and Greg Zatler); and inmates in protective confinement lost their canteen privileges. (Ibid.)
76. Notwithstanding the punitive nature of protective confinement, some inmates would remain in the confinement for months. Indeed the shortages of cell space attests to the inmate demand to "check in." (Swanson, Pgs. 203. 316) Plaintiffs' expert psychologist. Dr. Caddy, observed that the inmates who had opted to check into a confinement area as described would clearly manifest a high level of distress in the general dormitory population. (Caddy. Pgs. 1263-1266).
77. Third, the general "wolfing" and cat-calls of aggressive black inmates stationed around the compound during the initial periods of incarceration when new inmates were transferred to GCI (particularly the smaller, younger and at least physically more vulnerable white inmates) would suggest, in combination with other factors, that sexual pressures were severe. The corroborative description of these inmate

experiences to Dr. Swanson when he interviewed the individual

Plaintiffs incarcerated in institutions in different parts of

the State prior to the trial enhances the credibility of their

individual recollections.

The Court finds that the events

did take place.

78. Fourth, more overt signs of sexual activities, some

consensual, further provide an indication of assaultive rape

conduct. Sheets hung from the bunks; inmates moaning in their

bunks; the showing of pornographic movies CSwanson. Pgs. 8-9.

375-376) in a trailer in which "cries and moaning" of inmates

were heard, apparently are all part of the ritual at GCI.

79. Fifth, some rapes, in fact, were reported; although in

the case of Plaintiffs Aldred and Saunders. Defendant Turner

apparently was not made aware of these facts. Plaintiff

Harper's reporting and subsequent meeting with Turner is

discussed elsewhere. See, supra. Pg. 30. n. 17. ************

80. Having reviewed the knowledge or constructive knowledge that rapes were occurring, the Court now addresses

20/ Consider, in addition to the similarities that Dr. Swanson testified to finding in the inmates' account of "wolfing" upon arrival, the similarities in the accounts given by those inmate plaintiffs who testified. Saunders was greeted by a "great multitude11 of blacks in February, 1983. and described the scene as being like a "meat market" (Saunders, Pg. 536); LaMarca recalled catcalls from a "line of black inmates" about his being a "fat skinny white boy" (LaMarca, Pg. 948); and Al·dred remembers 150 to 200 mostly black inmates pressing up to the fence and arguing about who would get him (Aldred, Pg. 893).

J

various elementary procedures that could have been utilized to minimize the likelihood of raping and assaults.

b. THE PROCEDURES WHICH SHOULD HAVE BEEN EMPLOYED

CD

IMPLEMENTATION OF A

STANDARD PROCEDURE TO

INVESTIGATE RAPES

81. As previously detailed, see, supra. 1164. the Court has

reviewed the fact that there existed no procedure known to the

highest ranking investigator at GCI - Mr. Peters. (Peters) CNo

"standard operating procedure.")

82. In sum, no process or procedure was utilized to insure

the full investigation of the possibility that a rapes had

occurred.

This created an atmosphere where assaultive

inmates could continue to prey upon more vulnerable prisoners

and never run the risk of detection. Indeed, the Investigator

at GCI. Mr. Peters had never talked to two of the Plaintiffs

who reported being raped - David Aldred and Martin Saunders.

Nor did Defendant Turner talk to these individuals.

21/ Among the investigative procedures not used were: polygraphing of alleged victims and assailants; rectal examinations of victims; psychiatric and psychological examinations of the victims; thorough interviews of the victims by trained investigators. (Peters and Turner)
22/ Inspector Brierton made clear that immediate interviews of alleged victims was a critical step in any rape investigation in an attempt to amass as much intelligence as possible. This is what we, of course, would expect in any criminal investigation. (Brierton. Pg. 109)

O

)

(2) NO REQUEST FOR INVESTIGATIVE AND PROSECUTORIAL ASSISTANCE

83. As previously noted during the entire Turner administration. Defendant Turner and Lt. Peters could recall only one rape incident ever prosecuted. (Peters and Turner; Other areas of criminal activity within the prison met with a similar fate. During Turner's administration no State prosecution was ever initiated for any weapons possession by any inmate at GCI. (Peters)
84. The Court further finds that the atmosphere that existed at GCI during the tenure of Defendant Turner was one in which inmates bent on rapes and other expressions of violence roamed the compound with impunity. It was an atmosphere fostered by the institutional leadership's failure to initiate criminal prosecution against any but one prison rapist. It was an atmosphere nurtured by Defendant Turner's refusal to seek assistance .from outside state investigators (prison inspectors, sheriff's deputies. State Attorney's investiaators) and prosecutors to deal with such state crimes as sexual battery, aggravated assault, and armed robbery, as well as to seek assistance from federal officials for criminal violations of 18 U.S.C. §1241. et seq.. or any other applicable federal statute arising from such activities as those ascribed to Lt. Barrett and Correctional Officer Dixon. While accepting as true the Defendant's testimony that he spoke to legislative committees and civic clubs concerning funding levels for GCI, the Court finds that he absolutely ignored the criminal justice remedies to which he had ready access on behalf of his charges.

85. While the independent Inspector General, offices of David Brierton were called upon in such matters as the Barrett and Dixon investigation. Turner never called upon that office to conduct any investigation into assaultive behavior by inmates or any rapes that occurred. (Turner).
86. Peters conducted investigations at GCI only when directed by Superintendent Turner. (Peters). Turner never requested an investigation of the rapes of David Aldred, Martin Saunders. or Billy Joe Harper. (Turner). Each of the three Plaintiffs had reported to other prison authorities that they were raped (Saunders. Pg. 1563); (Aldred. Pgs. 812-815); (Harper. Pg. 746); however, because there was no discernable process to inform the higher chain of command at GCI, neither Aldred nor Saunders were ever interviewed by Lt. Peters.
87. Beyond the availability of the staff of the Inspector General's Office. Superintendent Turner failed to avail himself to other possible investigative arms of the government. While Turner referred all litigation to the Attorney General's Office, he never requested investigative assistance through the offices of the Attorney General. (Turner) Although there was some testimony that Lt. Peters had sought criminal prosecution from the State Attorney's Office of Palm Beach for various matters, it appears that no request other than the single, rape prosecution was ever made for criminal activity involving rape. (Peters) Additionally, there was no evidence that Defendant Turner ever attempted to personally meet with officials of the State Attorney's Office in order to develop a meaningful

protocol of procedure and policy in which to involve the State Attorney Office in various criminal investigations at GCI. Finally, while the Federal Bureau of Investigation investigated at least one matter, its investigative offices were never requested by Superintendent Turner in order to conduct investigations of violations of inmates' civil rights under the various federal criminal statutes.
88. The fact that no investigations of rapes occurred is demonstrated by the conspicuous absence of any reference to rapes in the reams of internal documents analyzed by Dr. Swanson. (Swanson, Pgs. 150-151), P.Ex. 31.
(3) INMATE MOVEMENT CONTROLS 89. During the Turner administration, inmates had free ingress and egress throughout the compound and dormitories. As stated previously, inmates were able to crawl under the fence fronting the protective confinement cell area and harass or threaten those inmates housed in protective confinement. The Prison Inspector Report of September 19-21. 1983. CP.Ex. 6. Pg. 8 ) , notes that inmate movements from one location to another are not properly controlled nor supervised by staff. 90. The control of inmate movement, particularly in an institution such as GCI with a high number of close custody inmates (65¾ to 75%) (Turner) and in an open dormitory setting, would make the necessity for some limitation on inmate movement critical. 91. Not until October 15. 1984. when Defendant Music became Superintendent at GCI. was a pass control system

utilized to monitor the movement of inmates (Swanson, Pg. 137), CMusic).
C4) STATIONING OF OFFICERS 92. As previously reviewed, due to the physical structure of the dormitory, an officer stationed in the wicket cage did not have a clear view of other areas of the dormitory because of clothing and other personal possessions that inmates kept on their bunks, supra. 1162. Additionally, during the Turner administration double bunking existed in the middle level of bunks, supra. 1134. Finally, because of the location of the shower area, it was impossible for an officer to view activities occurring in the shower from the wicket. (Swanson, Pg. 113) ("You cannot see back to the shower area for the obstruction of the bunks and the property piled on top of the bunks.") (Swanson. Pgs. 317-318) (Difficult if not impossible for officer in wicket to see shower area; double bunk in middle row obscures vision from wicket.). 93. Notwithstanding these obstacles. Defendant Turner never initiated any administrative policy that officers patrol the dormitory on a regular basis. Turner testified that he could not recall disciplining; suspending; or ever reprimanding an officer for failing to patrol the dormitory area. Lt. Peters recognized that it would take an officer approximately ten minutes to walk throughout the dorm and agreed that if a rape took more than ten minutes in the shower area, then an

officer properly on patrol would walk into the area of the shower while the rape was in progress.
94. Following Turner's retirement. Superintendent Music removed the second bunk level in the middle row of the dormitories and restricted the placement of personal property, sheets and lockers on the bunks in the dormitories in order to eliminate the obstruction of the officer in the wicket. CSwanson, Pgs. 128-129).
(5) TRANSFER OF THE WOLVES 95. It is instructive to compare Superintendent Turner's practice in managing the transfer of aggressive assailant "wolves11 who assaulted, extorted and sometimes raped more vulnerable inmates with that of his successors. Jones and Music. 96. Aggressive wolves appeared to be tolerated rather than transferred out of GCI; these assailants were allowed to recruit and prey on vulnerable inmates. CSwanson. Pgs. 51. 202). Turner articulated his helplessness in removing the wolves from damaging and violating other inmates. (Turner). Attentive review of the facts in considering two areas of evidence reveals Turner's deliberate indifference to his responsibility to protect more vulnerable inmates. 97 · First, in his short stay at GCI interim Superintendent Jones (August 1, 1984 - October 15. 1984) shipped out six busloads of problem inmates. (Swanson, Pgs. 134. 202). In each
23/ Durrance's rape lasted 35 to 40 minutes (Durrance. Pg. 461). Aldred's rape lasted 15 to 20 minutes (Aldred. Pg. 810).

of his first six months as Superintendent Music •effectuated
monthly five negative transfers (a rejection of an inmate
assigned to GCI). (Ibid. Pg. 203). Additional inmates were
"swapped" or exchanged by Music. (Ibid. Pg. 130). These
efforts were not made by Turner. The unrebutted opinion of
Turner's Chief Investigator, Peters, as to this matter is clear
and revealing:
When asked how Superintendent Jones could do this [transferring known inmate assailants 1 when it seemed not to be possible for Superintendent Turner. Lieutenant Peters said perhaps you have to understand Superintendent Turner's background. He did not seem to see this kind of inmate as a problem in the institution.
I then asked if the problems are being understaffed, there was a chronic understaffing. would the high turnover have let Mr. Turner to dismiss problem staff. Lieutenant Peters said if you work with a chain gang for 30 years, you define problems with a different perspective.
,(Swanson. Pg. 134)
98. Second, a more empirical review of three known inmate
"wolf-assailants" is equally informative. The first. Larry
Pryor. had harassed plaintiff Martin Saunders and raped him in
the bathroom in the Classification Building. See, infra.
1111151-153. Subsequently. Pryor also stabbed Plaintiff Eddie
Cobb. See, infra, 11177. The following chronology is revealing:
CHRONOLOGY CONCERNING LARRY PRYOR

DATE

DOCUMENT

January 21. 1983 Parole Report

COMMENT
Prvor "reflects"a serious pattern of assaultive behavior."

March 1983 November 15, 1983 Classification/
Team at GCI
December 29. 1983 Computer message from GCI
January 27. 1984 October 15. 1984 November 10. 1984

Pryor rapes Martin Saunders. (infra. ¶I53).
"The team recommends transfer of the above mentioned inmate for security reasons. We have received information that inmate Pryor is actively involved in strong arm tactics . . ."fIInmate Pryor assaulted inmate Kinner while taking these items.
Cancelling scheduled transfer of Pryor from GCI to UCI.
Pryor stabs Eddie Cobb ( i n f r a . 11177)
Music becomes Superintendent
Prvor transferred to FSP (incident of November 12. 1984 (less than one month after Music becomes Superintendent)
FSource: P. Ex. 26 (Pryor Inmate File); (Swanson, Pgs. 157-159

99. The second assailant, Willie Dock, was transferred out of GCI on September 6, 1984 (P. Ex. 16. Tab B) (Swanson, Pg. 155), for "management and security reasons." This occurred

24/ Turner testified that in regard to transfers. "I depended upon the classification team, that was their iob." Turner obviously did not adhere to the classification teams' decision in the case of Larry Pryor.

only one month after interim Superintendent Ron Jones replaced

R. V. Turner. Just several months earlier in March. 1984.

Willie Dock gang-raped Ronald Durrance. See, infra. 1111132-133.

100. The third assailant. Levi Fisher, was involved in

homosexual activities with young white males. (Peters). Lt.

Peters testified that Fisher had assaulted other inmates as

25/

well and knew Fisher to be-a wolf.

Nonetheless. Fisher

was left in the D-Dorm and raped Billie Joe Harper. See, infra,

11162.

(6) THE PORNOGRAPHIC MOVIES 101. Hard-core pornographic video moves showing explicit acts of intercourse and anal penetration were shown on a regular basiš"¯ã¯t GCI. (Swanson. Pgs. 375-376) The movies were a trap. They were unsupervised. (Swanson. Pgs. 88-90). Sounds of inmates screaming and crying could be heard from the trailer. (Swanson, Pgs. 107-108). Plaintiff Bronson was forced to masturbate an assailant at knife point in the movie trailer. (Swanson. Pg. 77). (Bronson). See, infra. 1Í144. 102. This Court has no hesitation in agreeing with Plaintiffs' experts that the showing of unsupervised pornographic movies at GCI is absolutely inappropriate and indeed would only serve to "maximize the possibility of

25/ Peters also acknowledged that he knew that Dock and Bone, who raped Ronald Durrance. were wolves.

sexual and other violence." (Caddy, Pg. 1267).26/
WITHIN THE CONTROL OF TURNER: THE LIMITED FINANCE ISSUE
103. Defendant Turner has presented evidence which focuses
upon the inherent limitations within which he performed his
duties as Superintendent at GCI. These limitations relate to
the fiscal realities in attempting to comply with various
constitutional norms. Turner articulated these limitations in
describing two overriding problems during his administration.
C D the lack of staff, and (2) the physical plant. The Court
is sensitive to the inherent financial problems incurred by
Turner, or for that matter any higher level correctional
official occupying the position of Superintendent at GCI.
Limited financial resources however is not dispositive of
26/ While Defendants witness Inspector Brierton was apparently non-committal as to whether he would permit video pornographic movies to be viewed which show explicit scenes of vaginal and anal penetration (Brierton. Pgs. 101-103). he did not hesitate in opining that he would investigate a movie event if inmates were heard moaning, crying or screaming. (Brierton, Pgs. 103-104).
Finally, it is noteworthy that Defendants did not offer a scintilla of evidence refuting that both the pornographic movies occurred and also that certain inmates were trapped into the setting and apparently victimized in the movie trailer. See. Devitt and Blackmar, Federal Jury Practice & Instructions. 3rd Ed.. Vol. 2, §72.17 (1977) ("If a party fails to produce evidence which is under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not.").

J
Turner's potential liability in this case. Rather, the issue
to be considered is whether "full compliance fof constitutional
norms! is beyond the control of a particular individual and
that individual can demonstrate that he accomplished what could
be accomplished within the limits of his authority". Williams
v. Bennett. 689 F.2d. 1370. 1387-88 (11th Cir. 1982).
104. The Court has made inquiry into this issue and is
convinced that events were not beyond the control of Mr. Turner
and that even in light of the financial limitations and
realities in which he operated, his conduct fell short of
accepted and prudent correctional practices.
105. In support of this conclusion, the Court lists the
following specific evidence which reflects practices which
would cost little or no monies; which were either ignored or
intentionally rejected by Turner, which were well within his
administrative control, and which, when considered separately
and in combination - the Court is convinced ¯ - would have
minimized or eliminated the likelihood of rape and assaults of
the various Plaintiffs at GCI.
(i) Turner's failure, at no cost, to reprimand. discipline, or suspend staff officers who failed to carry out the most elementary assignments such as regularly patrolling the dormitories, particularly in the evening hours, which would have minimized the opportunity for rapes and assaults to have occurred. See, supra. . ¶63.
(ii) Turner's overall laxity, with his staff insofar as evidence of minimal or no control through reprimands, discipline or suspension which allowed correctional officers to function with impunity in the face of wholesale extortions.

free flow of contraband including weapons, drugs, and alcohol; and permitting sexual activities such as the pornographic video movies to occur thus creating a general lawless climate.from which the natural and forseeable consequences were wholesale inmate assaults and rapes. See, supra. 111161, 101
(iii) Turner's failure, at no cost, to control and direct his staff and inmate population to remove sheets, personal property, lockers draped on inmate bunks in order to provide a clear unobstructed view for staff to monitor prisoner activities within the dormitories. This failure led to an officers' obstructive view of the dormitory and showers where rapes of Plaintiffs occurred. See, supra, ¾6l.·
Civ) Turner's rather shocking failure, at no cost, to promulgate and adhere to any meaningful process to investigate allegations of rapes and inmate assaults. This failure led directly to staff not reporting allegations of rape through the chain of command, supra. 1163 (Aldred and Saunders); led to rapes never reported by line correctional officers; and further resulted in rapes not investigated with low cost procedures such as: (i) rectal examinations; Cii) polygraphic tests; (iii) psychiatric evaluations; and (iv) in depth interviews. See, supra. 1182.
The consequences of these failures were that rapes remained uninvestigated and not prosecuted thus insuring a climate where an inmate assailant could sexually violate more vulnerable inmates with absolute impunity.
(v) Turner's failure, at no cost, to enlist the investigative and prosecutorial assistance of other branches of government to at least minimally make an effort to investigate and prosecute rapists and assaultive inmates. Available investigative resources never properly utilized include the ((i)) Palm Beach County State Attorney; (Cii)) Office of the Inspector General of Florida; ((iii)) the Attorney General;
((iv)) the Federal Bureau of Investigation.27/
27/ No attempt was even made to enlist the assistance of any federal investigative or prosecutional body to address whether
(Footnote continued to next page)
-47-

(vi) Turner's failure unlike his successors to impose inmate controls, at no cost, on prisoner movement throughout the compound and dormitories. See, supra. ¶89.

(vii) Turner's failure, at no cost, to transfer known assailants out of GCI through requests to DOC; through informal "swaps" or by merely adhering to classification decisions. See, supra. 1(96. This failure allowed Larry Pryor to remain at GCI at the times that he raped Saunders and stabbed Cobb, see, supra. ¶98, and allowed Willie Dock to remain at GCI at the time he and others raped Durrance, see, supra. 1199.

D. RAPE

1. OVERVIEW

106. In an effort to appreciate and address general

»-

principles concerning the issue of rape in prisons and most

specifically, the dynamics of rape which is in part the subject

matter of this lawsuit, the Court will review and make general

findings on this subject. These findings, in turn, will affect

and further define other previous factual findings provided in

this decision.

(Footnote continued from previous page)
a federal investigation or prosecution could occur with regard to rapes and assaults against prison inmates at GCT¯. Title 18 U.S.C. §241 makes it a federal crime for "two or more persons to conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."

-48-

2. FINDINGS a. CORROBORATION: DID THE RAPES OCCUR? 107. The obvious fundamental issue which necessarily must be resolved is whether the rapes of Plaintiffs and other inmate witnesses occurred. 108. Beyond the Plaintiff-inmate testimony, which this Court has intentionally reviewed with great care and factual precision, two additional corroborative avenues support the inmate testimony. This corroboration comes in the form of extensive expert testimony of Plaintiffs' experts. First, Dr. Richard Swanson, a correctional expert trained in both psychology and law (P.Ex. 34)(Curriculum Vitae),(Swanson, Pg. 3-18), utilized a multi-variate approach (Ibid. Pg. 21) in
drawing from essentially five independent sources of data to analyze Plaintiffs claims.28 /
109. Second. Dr. Glenn R. Caddy, a clinical psychologist. (P.Ex. 3 5 ) , (Caddy, Pg 1115-1128). with personal experience in treating rape victims and general research devoted to the issue of rape (Caddy, Pg. 1125), and also experienced with treating and investigating matters concerning prisoners. (Ibid. Pgs. 1125-1126). additionally corroborated the fact that in his
28/ This data, reviewed at great length, (Swanson, Pgs. 21-244) provided: (1) internal archival documents generated from GCI (Ibid. Pgs. 21-29); (2) external documents generated from independent sources outside of GCI (Ibid. Pgs. 29-31); (3) interviews of Plaintiffs and inmate witnesses (Ibid. Pgs. 32-35); (4) interviews of correctional staff including Defendant Music (Ibid. Pgs. 35-36); and (5) a general tour of GCI. (Ibid).
-49-

opinion the Plaintiff rapes had indeed occurred.29/ CCaddy, Pgs. 1241-1246) This conclusion was based upon: (1) the integrity of each of Plaintiffs1 separate emotional responses in recounting the specific incidents of their rape experience. (Ibid. Pg. 1242)("Those men who have been raped present essentially classic profiles of the consequences of rape.") Dr. Caddy observed that in his professional opinion it would be unlikely. Ibid, ("I have no reason to believe") that the plaintiffs-witnesses could artificially construct the emotional state that he observed ; (2) the inference of integrity from the commonality of the reporting of rapes to him which provided internal consistency to the varied circumstances supporting the conclusion that rapes occurred. (Ibid. Pgs. 1242-43); and (3) generally, see infra 11198. that in the context of the accepted frequency of not reporting ("underreporting") of rape, coupled with the normal inmate disinclination to report.
110. Based upon"these reasons, as well as the totality of facts discerned, not only from the Plaintiff-inmate testimony, infra. ¶¶I22-I95, but the other findings, this Court concludes
29/ Dr. Caddy's investigation in this case included; (1) interviewing of the Plaintiffs and innate witnesses (Caddy, Pg. 1130); (2) administering an analysis of specific psychological tests (Ibid); (3) reviewing various internal GCI - DOC documents relating to the various Plaintiffs and Inmates (Ibid, Pg. 1131); and (4) reviewing of related professional literature in the field of rape. (Ibid) 30/ The general symptomology. discussed in greater detail as to each inmate reflects a post traumatic anxiety disorder consistent with rape syndrome (Caddy. Pg. 1244).

that the rapes and assaults alleged by the various Plaintiffs
and inmate witnesses indeed occurred.
b. UNDERREPORTING
111. Both of Plaintiffs' experts confirmed the generally
accepted principal that rapes typically are underreported.
(Swanson, Pgs. 150-154); (Caddy, Pg. 1243) CAs much as 507. of
female rape in the non-institutional context are not reported.
Concludes that underreporting would be even higher within a
prison.)
112. Dr. Caddy's view of even greater underreporting of rape
within a prison is based upon the inmate disinclination to
report because they not only have to deal with the degrading and
humiliating consequences of reporting as do citizens in the
outside world but also may "dramatically increase rather than
31/ In the instant case, three of the five sexual assaults upon the plaintiffs were reported by the victims, but simply were not followed through on by the correctional officials. The two inmates who did not report their assaults, the raped Durrance and the abused Bronson. testified credibly as to their reasons for not reporting. The first. Durrance. acted out of fear and lack of confidence that it would serve any purpose (Durrance, Pgs. 465-471); the sentence completion test administered to Durrance reflected a fear of telling people what happened to him because of the great embarassment and discomfort of it (Caddy, Pg. 1224). Bronson did not tell because he had been warned not to, which warning he took to heart (Bronson, Pg. 700); additionally, he was aware of illicit dealings between his assailants and guards (Ibid. Pgs. 692 and 701).
Non-party witness Larty Brown testified that he did not tell a guard immediately after the rape because his assailants remained awake watching him from adjacent bunks (Brown. Pg. 845), but did tell a black guard the next day (Ibid, Pg. 847), and four days after the incident confirmed to Lt. Minor the lieutenant's assertion that Brown had "had a line as long as the dorm." (Ibid. Pg. 851).

decrease the risks that they will be seen to be vulnerable people to be raped again." (Ibid, Pg. 1243) Simply, the terror often survives the initial assault - once an inmate is raped, he is marked as a victim for repeated sexual assaults for the remainder of his imprisonment.
113. In accepting these findings of underreporting of rape at GCI, this Court is not alone. 32/
C. THE DEGRADATION OF RAPE 114. At the risk of finding the obvious, the Court deems it necessary, particularly in light of the requested damage award for the individual Plaintiffs and also in the context of Plaintiffs' request for general injunctive relief, to make findings as to the general nature of the violation of rape. 115. Defendants' own witness, Inspector Brierton expressed it plainly and with clarity (Brierton. Pg. 89). ("You have to look at rape as an assault"); Defendant Turner's opinion is
32/ Courts have recognized the underreporting of rapes and sexual assaults within our prisons. See, e.g., United States v. Bailev. 444 U.S. 394. 426 n. 6 (1980)(Blackmun. J. dissenting) (If a kid who is raped tells the guards, "his life isn't worth a nickel"); Martin v. White. 742 F.2d 469. 473 (8the Cir. l984)(Statistics on inmate assaults reflect "merely the tip of the iceberg as many violent assaults never find their way into the record books."); Doe v. District of Columbia. 701 F.2d 948. 966 (D.C. Cir. 1983)(Edwards, J.. separate statement); State v. Green. 470 S.W. 2d 565, 569 (Mo. l97l)(dissenting opinion) cert, denied 405 U.S. 1073 (1972) (Life of inmate of Missouri Training Center for Men who reports a rape not worth "a plugged nickel".)

r ¯`·
equally forceful: "Short of being killed I could think of nothing worse happening in prison." (Turner).
116. The Court accepts these opinions and shares its view that rape is one of the most degrading events, short of death, that can occur in prison. It follows that any institutional practices than can minimize its occurrence must be faithfully and consciously followed and observed by all prudent prison administrators. The Court finds that terror stemming from fear of sexual assault cannot be reconciled with the penological philosophy of the American prison system, which "emphasizes a balanced combination of deterrence, incapacitation, rehabilitation, and retribution." Society must not permit prisoners to inflict the sort of punishment on other prisoners that law and common decency forbid the State.
d. THE NATURE AND CONSEQUENCES OF RAPE ENDURED BY PLAINTIFFS AND INMATE WITNESSES
(1) AN ACT OF VIOLENCE 117. The proof reflected, and the Court so finds, that the universal opinion of all witnesses - of both parties - is that rapes in a prison setting such as GCI are.acts of violence, as
33/ Federal Prison System. U.S. Department of Justice, Long Range Plan 1981-1985 (1981). in Bureau of Persons and the U.S. Parole Commission.: Oversight Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice. 97the Cong. 1st Sess. 45 (l98l)(quotation refers to the Federal Prison System.

opposed to sexual conduct.34/ (Brierton, Pg. 89) ("An issue of dominance.") ("So the difficulty is when you begin to talk
about homosexual rape, you have to look at the rape as an
assault."); (Turner) ("An act of violence.") ("An act of
violence even if victim has prior consentual relations with
other inmates).
118. It follows and the Court finds that due to its very
nature as acts of violence, the rapes that occurred are not
isolated incidents of sexual conduct, but rather flow directly
from the lawless prison conditions at GCI. Acts of inmate
assault on inmates; inmate assaults by and upon correctional
officers; an environment of free-flowing illegal activity
involving extortion, possession of weapons, drugs, alcohol, and
staff corruption; and the corollary failure to punish or
prosecute inmate-staff violators so that such assailants' and aggressors1 conduct was not deterred by the rule of law and
threat of punishment, all form the background and climate which
in turn, provide a background and climate that preordained
homosexual rapes and other inmate assault occurred.
34/ Literature and research in the field support these conclusions that rape, at least in this context, is an assaultive and violent act rather than an event emanating from sexual gratification. See, e.g.. D. Lockwood. Prison Sexual Violence at 105-6 (1980): A. Scacco, Rape in Prison at 47 (1975); A. Groth, Men Who Rape - The Psychology of the Offender. 126-41 (1981) ("In this study of men who rape men. we found their dynamics to be similar to those of men who rape women. What is immediately apparent about the sexual assailants is that none of them had to rape for sexual gratification.").

(2) RACE 119. As described in detail, the named plaintiffs in this lawsuit, with the exception of Eddie Cobb. were all whites victimized by black assailants. See, supra. MÌ122-190. See also. (Swanson, Pg. 287) (High percentages of blacks reported by Plaintiffs were the perpetrators.). Indeed there was no evidence presented by either party of any assaults by whites upon blacks; the pattern (other1than Eddie Cobb) was consistently of black assailants assaulting whites (Swanson, Pg. 2 9 1 ) . 3 5 / 120. While one writer has concluded that there are definite "socloracial overtones" in the act of sexual victimization, noting that black aggressors who make whites submit to their sexual advances often comment "now it is their fthe blacks! turn." ; scholars, however, take pains to point out that "it is not black culture that is behind prison sexual aggression; rather, it is a criminal, male, youthful black subculture of violence." D. Lockwood, Prison Sexual Violence, at 105. Whatever the motive, the Court finds that any prisoner, especially one who is white and/or slightly-built, may find
35/ See also. (Swanson. Pg. 59) ("Glades is hard time for white inmates"); (Ibid) ("He fPryorl describes the pressure of white inmates. In order to pressure white inmates, blacks will sexually assault a white or threaten such assaults. Thereby they can gain money for protection."); (Ibid) ("Pryoc reports sexual assaults were always black upon white. Never white upon black."): (Ibid. Pg. 63) ("He [Eddie Cobbl reported that Glades was easy time for blacks. He reported that the blacks were the aggressors and the whites were pursued.").
36/ A.. Scacro. Rape in Prison, at 4«

himself threatened or raped even during the first day of confinement at GCI.
THE METHOD AND CIRCUMSTANCES OF PLAINTIFFS1 RAPES
121. Additional factors underscore the injury nd violation of the rapes of- Plaintiffs.
a. Anal as opposed to vaginal rape has the "potential in some respects to do more physiological damage than vaginal rape largely because the anal sphincter isn't able to expand in the same way the vagina is able to expand." (Caddy. Pg. 1254). Hence, the necessity, on a routine basis, for rectal examinations obviously is a standard process utilized in investigating anal rapes. This did not occur at GCI even though the clinic was equipped with rape kits by the Palm Beach County Sheriff's Office. (Peters and Turner).
b. The use of a weapon by the assailant with the attending threat of possible death if submission does not occur tends to increase the psychological trauma manifested from the rape.38/ (Caddy. Pg. 1253-54)
37/ Witness Larry Brown was raped the first evening he was transferred to GCI. See, infra. 11190. David Aldred was raped the second day at GCI See, infra. 1(123.
38/ Each of the following Plaintiffs were raped at knife point: Saunders. infra. 11153; Durrance. infra. 11133; Aldred, infra. 11123; and Harper, infra, 11162.

c. Multiple or gang rapes by numerous assailants elevates the "overall sense of total lack of control" and "almost inevitably will escalate the level of trauma experienced." (Caddy, Pg. 1256). ƒ
d. Cross racial rape (i.e., black assailant - white victim), at least as to the research relating to women, tends to cause more trauma and violation than if the victim and assailant is one of the-identical race. (Ibid.. Pg. 1258).
e. Rape occurring in an institution such as GCI provides less positive support services than if the rape had occurred outside of an institution. (Caddy. Pg. 1259-61). This is exacerbated by the negative rather than positive consequences of the reporting of rape within a prison. (Swanson. Pg. 151) ("Admitting of a rape puts at risk the inmate being labeled as involved in homosexual activity which may in fact put him in more jeopardy of the reoccurrence of that event.").
E. THE INDIVIDUAL PLAINTIFF'S CASES 1. DAVID ALDRED
122. David Aldred, 25. was found by Dr.. Caddy to be suffering from post traumatic stress disorder as a result of
39/ Each of the following Plaintiffs were Rang raped: Saunders. infra. ¶I53; Durrance. infra. ¶I33; and Aldred, infra. 11123.

)
40/ his being raped by black inmates at GCI (Caddy, Pgs.
1185-1186). Al-dred arrived at GCI July 20. 1984. Immediately
upon leaving the van. he saw 150 to 200 mostly black inmates
pressing up to the fence and arguing with each other: "He's
mine." "No, Nigger, I saw him first." "No. he's mine."
(Aldred, Pg. 893). Aldred received no orientation at G£I other
than an assignment to B-Dorm (Ibid. Pg. 894).
123. The jeering at the fence presaged Aldred's being raped
the second night he was at GCI. As he began to shower by
himself, placing the washcloth to his face, he was hit aside
the head, fell against the wall, and was thrown to the floor,
face down. His arms were stretched out on either side.
Someone grabbed Aldred by the hair and raised his head up to
stick a knife beneath his throat, and told him in a voTce that
he recognized as belonging to a black: "If you open your mouth
or holler, you will die." Aldred's legs were then spread and
he was entered anally by either two or three inmates while the
knife was held to his throat (Ibid. Pgs. 808-809). The episode
40/ As with the other plaintiffs who were raped. Aldred was raped by blacks. Dr. Caddy testified that because these were cross-race rapes, they are even more substantial issues because they bear on the propensity of the victims to then come to believe that profound racism is entirely acceptable, which tends to carry with the victims for years afterwards, perhaps never to dissipate. Whatever problems that might create in an everyday world, it may be an even more difficult problem in prison (Caddy. Pg. 1246).
Significantly, Aldred described his arrival at GCI as being greeted by "a tidal wave of niggers fighting over who would have me" (Swanson. Pgs. 70-71). He characterized the camp in an interview as being "a black camp run by black inmates" and as being 80 per cent nigger."

took 15 to 20 minutes (Ibid. Pg. 810). Aldred experienced a burning, excruciating pain. He felt like he was being torn apart <lbld. Pg. 816). When his attackers had finished with him. they told him not to say anything (Ibid. Pg. 810). Aldred was bleeding from the rectum (Ibid. Pg. 816). For a week, a sensation reminiscent of the rape returned each time Aldred had a bowel movement. (Ibid. Pg. 817).
124. After borrowing two knives and making an unsuccessful 45 minute foray throughout the dormitory looking and listening for any assailant who might be bragging about what had just happened, Aldred went to the dormitory officer and told him he had been raped (Ibid, Pg. 813). The dormitory officer told Aldred to return to his bunk, that the officer would take care of it. Although Aldred said he had been raped, the officer did not arrange for him to receive a medical oc rectal examination (Ibid, Pgs. 812-813). After the shift changed at midnight, Aldred asked a new dormitory officer what was happening about Aldred's reported rape: the officer responded that he did not know what Aldred was talking about (Ibid. PR. 814). The nextday he reported his cape to a lieutenant. He said he did not know the identities of his assailants. He asked for protective custody. The lieutenant refused Aldred protective
41/ Aldred's personality profile contains an elevated hypochondriasis scale. Dr. Caddy testified that this index is at least in part a reflection of the continued reporting that he experiences physical discomfort quite routinely in the rectal area if he has to strain to go to the bathroom, and even when he does not (Caddy. Pgs. 1173-1174).

confinement. He told Aldred words to the effect of. "You got to start being a man sometimes." (Ibid. Pg. 815).
125. Although there is no Superintendent's Monthly Report to Regional Director for July 1984 included among Defendants' Exhibit 14. the one of the preceding month reflect an end-of-June population of 851 inmates and showed that 219 of the 235 authorized and established positions were filled. Superintendent Turner reported: · "Inmate and staff morale continues to be good." See. D.Ex. 14. It is unknown whether Aldred's rape was reported as a sex assault on the July report, although it appears unlikely. The Court has been furnished with no written report of the rape by either the Plaintiffs, whose counsel represented·that all pertinent documents
»
t
concerning Aldred were contained in Exhibit 13, nor Defendants. 126. Aldred was transferred to the Reception and Medical
Center (RMC) for previously scheduled dental surgery (Ibid. Pg. 817`). After the surgery was complete. Aldred said he spoke with a psychologist and told him the best that Aldred could what had happened at GCI, told him that Aldred needed help, and got the response that there was nothing the psychologist could
42/ do (Ibid, Pg. 819). '
42/ See also. P.Ex. 13, Section C (A medical chart, the second page of which contains an entry dated 7-25-84 that appears to read: "Patient feel (sic) afraid to (` illegible! Glades C.I. He came for appointment with Dental Dpt. He request medication for his fillegiblel..." Another entry of the same date reads: "Subject reported to the OPC attempting to elicit help in changing institutional assignment. He was referred to the Class. Dept.").

127. Informed he would have to return to Glades. Aldred slashed his wrist with a razor blade. Dr. Caddy, while discounting it as a suicidal gesture that was probably an attempt largely to get attention, characterized it nonetheless as indicating clearly a grave state of distress (Ibid. Pg. 1171).
128. Upon arrival back at GCI. Aldred immediately checked into protective confinement until he was transferred nine days later (Ibid. Pg. 820).
129. As a result of the violent sexual attack that Aldred experienced at Glades, and the general flavor of his emotional state at the time, Aldred reported to Dr. Caddy that today he really doesn't trust anybody. He engages in almost a hyper-vigilant activity much of the time, and there is both a paranoid and phobic quality to his responding with respect to black males. He is very, very angry and continues to carry that anger hardly below the surface today. He goes everywhere that he possibly can with a weapon, which he reports never having done before the rape (Caddy, Pg. 1172). Aldred's sense is one of shame, being violated, almost uncontrolled anger and rage, and it seems to be distributed somewhat generally to black males, not simply specifically to the people who raped him. He classically demonstrates the profile of a rape victim. without any opportunity to engage in a therapeutic process (Ibid. Pg. 1173).

<
2. RONALD LEE DURRANCE 130. Ronald Lee Durrance, a 27 year old father of two, had assumed by March, 1984, a role that Dr. Caddy characterized as "somewhat of a social worker" who informed transient inmates who passed through his dormitory at GCI of dangers of theft that they faced (Caddy, Pg. 1221). Durrancefs adopted role at GCI appears especially benign when viewed against the backdrop of his earlier years in prison:- he became a member of a gang, "The Omens." at DeSoto Correctional Institution in 1977 CDurrance, Pg. 518); he vended marijuana cigarettes at Florida State Prison in 1977, and was caught with 17 of them (Ibid. Pg. 519); he was disciplined at one work release program in 1981 for drinking and at another for lying to a staff member about his paychecks; he was convicted in 1983 of a burglary committed while on wor-k release CD.Ex. 23). Notwithstanding such a past, however, Durrance is a strongly built man whose reporting to Dr. Caddy, as well as his prison file, revealed no difficulties at GCI prior to the incident of March 17, 1984 (Ibid). (Caddy. Pg. 1221). 131. Durrance reported to Caddy that he felt that the officers at Glades Correctional Institution seemed to have no control over the inmates or chose to exert none (Ibid). The institution at the time had—filled 230 of its 235 authorized staff positions (D.Ex. 14, Superintendent's Monthly Reports toregional Director, Report for March, 1984). Defendant R.V. Turner had noted that: "Staff and inmate morale is good. No major problems to report." (Ibid).

132. On the night of March 17. 1984 (Durrance, Pg. 444¯), two black inmates known to Durrance as Willie Dock and Bull told him to cease warning the transients (Ibid. Pg. 446). Later that night another black inmate. J.R., said he wanted to speak with Durrance. Durrance walked with J.R. to his bunk, the passageway next to which was obscured by having a blanket hung down from the top bunk. When Durrance stepped between the bunks to talk. Bull grabbed him•by the neck (Ibid, Pg. 451). Willie Dock was there, too, with a knife. So was another inmate called Bone, also with a knife, and a fifth inmate. Bean (Ibid, Pg. 452). Willie Dock said. "Pussy cracker, if you holler, I'll cut you." He placed the knife to Durrance's neck and Durrance was dragged from between the bunks and into the shower (Ibid. Pg. 453).
133. In the shower. Durrance was thrown to the floor. As Bean knelt on Durrance's left shoulder and J.R. held a knife so that Durrance could see it. the others snatched off Durrance's blue prison pants and his underwear (Ibid. Pg. 456). They wrapped Durrance•s pants around his neck and face (Ibid. Pg. 458). The first of the inmates to rape Durrance entered him forcefully through the rectum. Durrance wanted to scream, both because of the pain and. because he could not believe what was happening (Ibid. Pg. 459). He was penetrated three times (Ibid. Pg. at 460). The ordeal lasted 35 to 40 minutes. When the rape was over, J.R. told Durrance. "Don't go to the wicket. pussy cracker. If you go to the wicket, you're through." (Ibid, Pg. 461). Durrance put his underwear back on. though

V
not his pants, stood in the shower and cried (Ibid. Pg. 462). Although he flirted with the idea of revenge, Durrance calculated that he could not fight all of his attackers: he climbed back into his bunk, crying (Ibid. Pg. at 46*0. He was afraid to tell the dormitory officer about the rape because he felt that the dormitory officer would not do anything and that the other inmates would have heard Durrance complaining about which inmates had raped him. He felt that he would have to name names to get into protective custody because of what he supposed was the "good cause" requirement (Ibid. Pg. 465). He lay awake all night (Ibid. Pg. 467). He watched his attackers lay awake on their bunks, smoking marijuana and drinking a prison-made wine called "buck" (Ibid, Pg. 468).
134. When the shift change came. Officer Dixon came on at midnight (Ibid. Pg. 478). Durance was afraid to tell Dixon because he had seen money passed between inmates and Dixon and had seen Officer Dixon deliver a pint of whiskey to an inmate (Ibid. Pg. 471).
135. In the morning, Durrance went to his job at the auto paint and body shop. His rectum was in pain.- a burning sensation. He did not have a bowel movement until the next day. Notwithstanding the pain. Durrance was too embarrassed
43/ to seek medical attention (Ibid. Pg. at¯472).
43/ Heightened embarrassment about the rape still showed through in a sentence completion test administered by Dr. Caddy (Caddy. Pg. 1224).
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f

(

The pain, which Durrance described to Dr. Caddy as lasting several weeks, also continues in the form of lower stomach discomfort (Ibid. Pg. 1224).
136. Durrance did not return to work that afternoon. Instead, he went to see a lieutenant, but still could not bring himself to admit he had been raped. He was afraid that if he told, other inmates would find out (Ibid, Pg. 475). When he sought protective custody without saying why. a Lt. Slater told him, "The Confinement is full. I'm not putting you in confinement, and. look, go out, be a man; go out and learn to be a man." (Ibid, Pg. 476). Durrance ceased reporting to his job assignment because he knew that if he did not go to work, eventually he would be locked up in confinement and thereby be off the c¯o¯mpound (Ibid, Pg. 477).
137. One of Durrance's attackers. Bone, he thinks, approached Durrance several days later and told him that he would either have to choose to be someone's sexual partner or to pay Bone protection money to avoid being raped again. Durrance stalled, continuing to fail to report for his work assignment (Ibid. Pg. 478). The unexplained refusal to work resulted in Durrance•s receiving a disciplinary report and being locked up in administrative confinement (Ibid. Pg. 479). Although it was Durrance's first disciplinary report for refusing to work, the official who reviewed it did not want to hear any explanations (Ibid, Pg. 480). At the expiration of his 15 day confinement sentence (Ibid. Pg. 481), Durrance was assigned to a bunk in D. dormitory, about which he had heard

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that there was a lot of pressure there to engage in homosexual

acts; he refused to go and was placed back in confinement
44/ (Ibid, Pg. * 8 2 ) .

138. While awaiting a hearing on his refusal to go to D

dorm. Durrance told acting Major Barrett that he had a problem

about owing another inmate money and needed to be locked up in

protective confinement. Barrett told him to write out a

statement, which he did (Ibid, Pg. 484). Notwithstanding the

explanation, Durrance lost 45 days gain time for refusing to go

to D-Dorm. See, D.Ex. 23 (Disciplinary Report reflecting hearing April 13, 1 9 8 4 ) . 4 5 /

139. Durrance testified that he entered a statement that "I

owed out a great deal of money, and I also entered the names of

Willie Dock and Bull as the two people I owed, in hopes that

%

maybe by me saying that I owed them, and it was felt that I was

"i

in danger, that they may be reprimanded somehow by me doing

that."46'

44/ This behavior is consistent with Dr. Caddy's finding that, other than the fear that his son will find out about the rape. Durrance's greatest fear is being raped again (Caddy, Pg. 1225).
45/ Durrance additionally lost 20 more days gain time that he would have acquired if protective custody inmates were allowed to work (Durrance, Pg. 486).
46/Among the documents submitted from plaintiff, Durrance•s
file as part of Defendants' Composite Exhibit 23. was a
handwritten statement dated 4/16/84 and purportedly signed by Ronald Durrance, which read:
(Footnote continued to next page)

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140. Durrance never was raped prior to this incident, nor
afterward. Nor has he engaged in any homosexual activity
before or since (Ibid. Pg. 487). Nonetheless, and
notwithstanding his initial concealment of the rape from prison
officials, word of the rape circulated among prisoners and
followed him to Polk Correction Institution, to which he was
(Footnote continued from previous page)
Dear Sir:
I'm requesting protective custody because I owe out $60.00 that I have no way of paying. I would rather not give out names, but I have no other choice (sic). Gator in fillegiblel dorm Mark in C-dotm and a guy called Willie in B-Dorra. My life [illegiblel in danger.
Thank you.
Also in the file submitted by the Defendants is a Report of Administrative Confinement addressing the initial refusal to go to work. Under the section on Classification Team Review and Action, the report reads as follows:
Team #1 review (sic) inmate at approximately 7:00 a.m. on 4/3/84. Inmate Durrance advises that he owed inmate Stump some money while at U.C.I, three or more years ago and was transferred without paying. When Durrance arrived at G.C.I, he was met by Stump demanding payment. Durrance did not have the money ($40.00). Stump was released and transferred money to Willie Docks. (Sic) Durrance borrowed money from Mark to pay Dock. Inmate is now threating (sic) to collect with interest. Durrance expects to-get an I.R.S. return to pay debt but want (sic) to go to Polk C.I.
Team #1 does not feel this inmate is in fear but rather is engaging in manipulation to get a transfer. Team concurs (sic) with action taken; inmate is to remain in confinement for refusing to work until case is resolved.
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transferred in July. 1984 (Ibid). An inmate known as "Black" approached Durrance (Ibid Pg. 488) and told him that Durrance would either pay protection money to Black or Black was told to tell other inmates at Polk that Durrance was a "fuck boy" at GCI (Ibid. Pg. 489). On November 1, 1984, Durrance checked back into protective confinement at Polk, once again citing money owed as the reason (Ibid. Pgs. 490-491).
141. Durrance was transferred to Hendry Correctional Institution where, three weeks after his arrival , Bone, one of the assailants, approached Durrance and told Durrance that he was either going to have to pay Bone money or be somebody's "boy." Once again, Durrance checked into protective confinement (Ibid. Pg. 501). He said there was a contract on his life that had been let at Florida State Prison (Ibid. Pg. 502)
142. September 27, 1985, Durrance was transferred - back to Glades Correction Institution (Ibid). He immediately requested protective custody, which he did not get until being required to go to the mess hall for lunch (Ibid. Pg. 503). At this point, he finally told a correction officer at GCI. Lt. Minor, that he previously had been raped (Ibid. Pg. 505). Lt. Minor memorialized the complaint in a Report of Administrative Confinement dated September 27. 1985 (D.,Ex. 23). He remained in protective custody at GCI until bing transferred in November to Dade Correctional Institution (Durrance. Pg. 505).
143. The residue of the rape for Durrance, in addition to the gain time he has lost, created an adjustment disorder with
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mixed emotional features (Caddy, Pg 1225). Emotionally , he reports being essentially closed and more reserved than before- He no longer seeks out people to be friendly, as he did before. He watches everybody and trusts no one. His greatest reported fear is telling his son about the rape (Ibid, Pg. 1225).
3. STEVE HERMAN BRONSON. JR. 144. Steve Bronson. a white, bisexual transvestite, who answers also to "Nancy Sue," arrived at GCI in November, 1981 (Bronson. Pg. 689) with a Department of Corrections file rife with reference to his sexual- preference and affectation. See, Plaintiffs'- Post Trial Submission of Excerpts from Plaintiffs' Records. Subsequent to his arrival, he encountered a black inmate gang leader named Mack, who trafficked in drugs, protection, gambling, alcohol, and homosexual prostitution. He met Mack while the two of them were in a trailer with others watching a video cassette recording that depicted vaginal and anal intercourse. The movies were shown on weekends as part of the prison recreation program (Bronson, Pg. 691). Mack pushed a knife in Bronson•s side and forced him to masturbate Mack (Ibid, Pg. 692). Despite Bronson's previous consensual relations with other males, he objected to being forced to masturbate Mack (Ibid. Pg. 694). Mack initially demanded that Bronson be one of his "girls." but settied.for Bronson's agreement to pay him protection money and serve as a lookout during both card games and sexual encounters between the two other "girls" and guards (Ibid, Pg. 692). Bronson thrice
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{
observed guards being fellated by the homosexual prostitutes, once in the movie trailer, once in a dorm and once in the equipment shack on the recreation field (Ibid, Pg. 693). Another of Bronson•s task for Mack was to masturbate inmates who paid Mack (Ibid, Pg. 696`). To accentuate his femininity for this assignment, Bronson would dress in a tee-shirt rolled up above his midriff, shorts, and sandals (Ibid, Pg. 697). The only time he was required to wear his regulation uniform was to go to either the visiting park or the chapel (Ibid, Pg. 697) notwithstanding that he had once sued while incarcerated at another Florida prison to set aside a policy against his wearing women's clothes (Ibid, Pg. 721).
145. In late June, 1982, one of Mack's two male homosexual prostitutes was transferred out and Mack demanded that Bronson take his place. After Bronson refused, he was waylaid by two men in Mack's company as he was walking across the recreation field at 9 a.m. or so on a sunny Saturday morning. A rag was stuffed in his mouth, his shorts and underwear were removed and the handle of a baseball bat was shoved up his rectum, pushed a couple of times and pulled out. Bronson felt as if his rectum was being torn. When the bat was pulled out it was very painful. Bronson tried to scream, but could not. Mack told Bronson that the baseball bat vas only a sample of what he would do if Bronson did not become one of his prostitutes. The rectal bleeding continued for three days (Ibid, Pgs. 698-699).
146. Bronson did not go to the clinic. He had been warned that he could be killed if he reported the incident to
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(
anybody. He believed that threat whole heartedly (Ibid. Pg. 700). He had witnessed guards giving money to inmates, Mack's buying alcohol from guards and Mack's buying drugs from guards (Ibid, Pg. 701). The drugs sold to Mack by the guards included marijuana, which Bronson recognized by seeing it as it was packaged for resale (Ibid, Pg. 702) and a white, granular substance with lumps that Mack said was cocaine and that Mack sold to other inmates when they asked for cocaine (Ibid, Pg. 703). Bronson told Dr. Swanson that black inmates ran GCI, (Swanson, Pg. 77). He also told Swanson that the guards seemed scared of inmates (Ibid. Pg. 78). He told Swanson he was scared to ask for protective confinement (Ibid, Pg. 79). He did not have the sense that there was anybody that he could go to (Caddy, Pg. 1191). When he finally did check in, he told — Swanson he found it to be extremely punitive (Swanson, Pg. 81).
147. Bronson remained quiet about the incident. To avoid either a repeat¯or the alternative of forced prostitution, he checked into protective confinement immediately after a July 4, 1982 visit from his wife and daughter. Rather than inform on Mack, he used the ruse of family problems instilling in him an urge to escape (Ibid. Pg. 710). He found his one-bed protective custody cell with two other inmates already there (Ibid, Pg. 711). The electric light was. not working. The only times he was allowed outside was for three, three to five minute showers a week. There was no access to the law library. There were no canteen privileges. There was no smoking. The food was cold and in smaller portions than given
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to the inmates in population. The screens were either

non-existent or had holes (Ibid. Pg. 712). Mack would come by

the windows and tell Bronson to come out or he would send

somebody in to harm Bronson (Ibid, Pg. 7 1 4 ) . Superintendent

Turner, however, never came back to the confinement area during

the period that Bronson was there, from July 4, 1982 through

August 25. 1982 (Ibid. Pg. 715).

148. Bronson was one of 80 persons who entered

administrative confinement in July, 1982: the administrative

confinement area had 34 inmates at the beginning of the month,

24 at the end. In June, when the baseball bat incident

occurred, it appears as if 241 of the 270 authorized and¯ established staff positions were filled.47 /

149. The psychological experiences that Bronson had at GCI

^m$

simply represented a further extension of his increased

sensitivity, his feelings of nervousness and his feelings of

powerlessness (Caddy, Pg. 1190). But while Dr. Caddy

acknowledged that it would have been equally quite

inappropriate to try to tease out the specific elements that

relate solely to the incidents surrounding the events at GCI.

he did feel it important to observe that at GCI Bronson felt

far more vulnerable than at several of the other prisons in

47/ The monthly report for June appears to have a typographical error in its recitation of "231" Jobs being filled: this becomes obvious when the figures for May (243) and July (247) are viewed against the minor turnover during the three-month period. In May, Turner had reported that the "high vacancy rate is down." (D.Ex. 1 4 ) .
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which he had been placed, largely because he perceived the facility to be somewhat more lawless (Ibid. Pg. 1191). Dr. Caddy's diagnosis of Bronson was as suffering an adjustment disorder with mixed emotional features, together with an atypical personality disorder and a sexual identification disorder; he could not attribute specifically what part of the disorder is a direct function of the incident at Glades (Ibid. Pg. 1193).
4· MARTIN SAUNDERS 150. Martin Saunders was convicted of sexual battery, for which he got a 35 year sentence; possession of marijuana, for which he got a concurrent 5 year sentence; and aggravated assault, for which he received a consecutive 5 years, for a total of 40 years (Saunders, Pg. 533). He is 5 feet, 7 inches tall and has an obese buttocks, a physiognomy that both he and and Plaintiff Anthony LaMarca, who shares it. say is attractive to imprisoned homosexuals (Ibid, Pg. 537), (LaMarca, Pgs. 948-949). How attractive Saunders was to the black inmates at GCI became uncomfortably clear to him as he witnessed a "great multitude" queue up near the area where the prison van unloaded him at GCI in February, 1983; he recalls feeling like being in a meat market (Saunders, Pg. 536). Although he earlier had been derided as a homosexual by one inmate shortly after having arrived at DeSoto Correctional Institution, he attacked that inmate to rid himself of that label (Ibid. Pg. 534). 151. Although he received no orientation from the prison administration at GCI (Ibid. Pg. 539), he received an
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aggressive orientation the evening of his arrival in A.-Dormitory; blacks approached this young white inmate offering friendship that he felt, based on the time he had spent in prison already, was a prelude to a homosexual advance (Ibid, Pg. 540). Two in particular, James Roper and Larry Pryor, were persistent in their advances and struck Saunders wherein he rebuffed them (Ibid, Pg. 541). Once, following a visit with his family. Saunders returned to the dorm where Pryor, armed with a knife, demanded that Saunders give Pryor the $5.00 his parents had just given him during the visit. Saunders complied then, as well as on a second occasion when Pryor demanded money (Ibid, Pgs. 546-547). On another occasion, Pryor and Roper "creeped" up behind Saunders as he watched television and each punched him on a side of his head (Ibid, Pgs. 549-550). They took his property and threw it in the shower (Ibid). He knew it was Roper and Pryor because he spotted a towel of his hanging from one of their bunks (Ibid. Pg. 551).
152. Saunders complained to a number of correctional officials. The officers took the approach that Saunders should be a man, should deal with his problems and should hit Pryor and Roper so that would leave him alone (Ibid. Pg. 548). According to Saunders1 unrebutted testimony, one official. William Knight, Saunders' classification officer, took the opportunity of Saunders1 first visit to press himself against Saunders from behind and to run his hands down Saunders' arms. Saunders interpreted this as a homosexual advance (Ibid. P&. 544).
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V

153. On or about March. 1983, Saunders was using a small

bathroom in the classification building. He was sitting on the

commode with his trousers down when Roper and Pryor entered the

room (Ibid, P R . 551). The two told Saunders to keep his pants

down (Ibid. Pgs. 551-552), and that they were going to "get

theirs." It is a very narrow bathroom and Saunders was

directed to stand over the commode, facing the wall.

As

Roper lubricated his penis with Vaseline, Saunders attempted to

to bolt from the room, but was stopped and told that he would

be killed if he tried again to escape (Ibid, Pg. 552). Roper

entered Saunders. Saunders could tell that Roper ejaculated

because of the groans he made. When Roper finished, Pryor

followed (Ibid. Pg. 553). Pryor also ejaculated inside

Saunders. The incident took about 25 minutes to a half hour.

The two of them left the bathroom laughing about how, "That's

some good pussy.". (Ibid. Pg. 554).

154. After sitting on the recreation field and crying alone

for about an hour, Saunders angrily went in search of his

48/ Lt. Leo Peters, the institutional investigator, testified that the room in which Saunders said he was raped was so small that Peters bumped his head against the opposite wall one day recently while sitting on the commode. Dr. Caddy noted that when Saunders talked abut being raped, he did not talk about being thrown to the floor, as had the others (Caddy, J*gs. 1311-1312). Saunders described his position during the penetration as "looking over the toilet, my hands on the wall," (Saunders, Pg. 553). The rapists, then, could have stood
facing the commode much as a man would stand in front of it
while urinating. In short, there is nothing in any of the testimony that is inconsistent with the conclusion that Martin Saunders was anally raped in the bathroom.

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rapists. When he found Pryor he began a fight. After the fight was broken U P , Saunders, according to his unrebutted testimony, told Lt. Pipta, that Pryor and Roper had raped Saunders (Ibid. Pg. 556). Saunders got the impression that Lt. Pipta did not believe him. Although Lt. Pipta had Saunders taken to the clinic for an examination concerning the fight, there was no rectal examination done (Ibid. Pg. 557). The officer who was escorting Saunders said, "that's not what we're here for." Saunders was put into administrative confinement. In neither Saunders1 file, pertinent excepts of which are include in P.Ex. 29. nor in Pryor's file, pertinent excerpts of which are included in P.Ex. 26, is there any record of either the report of the rape, of the fight, of the physical examination of Saunders. or of Saunders' subsequent confinement. Saunders' unrebutted testimony is that Pryor and Roper were not confined concerning the rape. There were no disciplinary reports concerning the fight (Ibid. Pg. 561). Lt. Leo Peters, the institutional investigator, testified that no one informed him of the alleged rape nor instructed him to investigate it.
155. Saunders, who reported experiencing a "very mushy" stool during his first bowel movement after the rape (Ibid. Pg. 559). was jailed as the third person in a two person cell. The cell was roach infested and there was a thick mildew on the walls. Saunders was there for three to four days (Ibid, Pg. 561).
156. Upon his release from confinement. Saunders acquired a transfer to C-Dorm by giving up a prestigious inmate job as a
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steward in the staff dining room (Ibid. Pg. 564) and taking a job cutting sugar cane (Ibid. Pg. 565). In C-Dorm, however, he encountered an inmate known as Charles Street, who harassed Saunders sexually and kicked him in the groin. See. P.Ex. 29, Section B. Street slept next to Saunders and told Saunders that he was going to "get" him one night. Saunders was fearful that Street would succeed in any attack because his bunk was obscured from the view of the dormitory officer (Ibid, Pg. 569) by towels that would be draped from the top bunk to form a sort of tent (Ibid, Pg. 570). Saunders felt someone who was thinking about killing him at night would feel that they could get away with it and. therefore, would be further motivated to harm him (Ibid. Pg. 570). The only way Saunders could see the guard was to hang his head over the bed perimeter (Ibid. Pg. 571). If Saunders were in his bed. the guard could not see him (Ibid, Pg. 572).
157. Saunders' fear of death upsets him greatly (Caddy. Pg. 1207), and he testified that his nightmares about death always involve a stabbing (Saunders, Pg. 577). Notwithstanding Saunders1 being characterized by the Plaintiffs' own expert. Dr. Glenn R. Caddy, Ph.D., as being not only one of the most intelligent, but also most manipulative of the Plaintiffs (Caddy. Pg. 1198), Caddy testified that Saunders reports some of the common experiences of people who have experienced rape: an immediate sense of worthlessness but with extreme anger; a fear that in some respects he was trash for having allowed this to happen (Ibid. Pg. 1199). Dr. Caddy, whose experience in
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•• ¡ ( ¡
„¿ ? ¯

dealing with manipulative personalities include numerous clinical encounters with alcoholics and drug users, nonetheless placed credence in Saunders' testimony that he had been raped and felt that Saunders would have been unable to consciously mimic the affect of a rape victim (Ibid. Pg. 1313). Dr. Caddy's diagnosis of Saunders is that of post traumatic stress disorder (Ibid. Pg. 1207).
158. During his imprisonment at GCI, Saunders told his mother repeatedly that he was in fear of his life (Sally Saunders. Pg. 658). Mrs. Saunders attempted numerous times during Saunders1 incarceration at GCI to telephone Superintendent Turner. See. P.Ex. 12, Section A. She was only able to get through to him about three time, however (Sally Saunders. Pg. 669-}-r- During one of those conversations. subsequent to Saunders having joined as a Plaintiff in this action. Turner laughed and said to Mrs. Saunders, "Do you know how many people have tried to sue me?" (Ibid. Pg. 660).
159. Saunders checked back into protective confinement November 10, 1983. See. P.Ex. 29. Section B. At the time, 220 of the 233 authorized and established staff positions at GCI were filled; Superintendent Turner wrote that "íslstaff & inmate moral (sic) appears high. Gov. Graham's visit was an important occasion. With overall unemployment down we are beginning to again experience significant staff vacancies." Saunders was one of 76 persons who went into either administrative or protective confinement during the month. His assault by Street, however, does not appear to have been
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reported as either an Unarmed Assault Where Person Assaulted is Injured, or as an Assault to Commit a Sex Act, no incidents having been reported in either category on the Superintendent's Monthly Report to Regional Director. See, D.Ex. 14.
160. Saunders found the conditions the same when he checked into protective confinement as those that existed when he was in confinement following the fight with Pryor CSaunders, Pg.~ 574). Notwithstanding the strictures of §33-3.082(4), Florida Administrative Code, and GCI's Institutional Operating Procedure 83-40, which require that treatment of inmates in Protective Confinement be "as near that of the general population as assignment to protective confinement as the housing area will permit" CP.Ex. 3. Flap F 2 ) , there was no literature, no canteen; in short, no privileges (Saunders, Pg. 574). Saunders never saw Superintendent Turner during Saunders' stay in protective confinement (Ibid. Pg. 576). That stay ended when Saunders' was transferred to Avon Park Correctional Institution - at the order of a prison inspector (Ibid. Pg. 576).
5. BILLY JOE HARPER 161. Billy Joe Harper is an unusually boyish-appearing 25 year-old inmate serving a 15-year sentence for a sexual battery committed in 1985 following an earlier conviction for armed robbery (Harper. Pg. 732). His incarceration within the Department of Corrections has been characterized by incidents in which contemporaneous reports reflect that he had complained of sexual assaults and/or harassment and had requested
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protective confinement for those and other reasons.

The

other assaults of which he is quoted as complaining all

occurred prior to Harper's arrival at GCI on December 31, 1981.

162. About two weeks after his arrival. Harper was raped at

Knifepoint in his top bunk in D-Dormitory about 2:00 a.m. by a

man whom he identified as inmate Levy Fisher (Harper, Pg.

736). Fisher held a knife to Harper's throat and told him that

if he made a sound, Fisher would cut Harper's throat (Ibid. Pg.

738). Fisher pulled off Harper's underwear and lifted Harper's

leg so he could enter him anally (Ibid, Pg. 739). Harper could

not see the correctional officer who was supposed to be on duty

(Ibid). After Fisher was finished, he told Harper that if

Harper told anyone. Fisher would kill him (Ibid. Pg. 740).

49/ According to documents contained within D.Ex. 15, Harper sought an obtained protective custody at Brevard Correctional Institution January 12, 1980 because of the presence there of a jail rapist against whom he claimed to have testified in Leon County. Florida, Circuit Court. He told a correctional official at Avon Park Correctional Institutional March 1, 1981, that three black inmates raped him in the shower there February 28, 1981. Harper now does not remember making this allegation (Harper, Pg. 752). There is a notation on a "Page 8" of what appears to be a document from Baker Correctional Institution in which Harper is quoted under the "comments" section as having complained of being raped in the Alachua County Jail in Gainesville by someone who was then at Baker. Harper testified that he never made that statement (Harper, Pg. 750). Page 3 of what appears to be a document from Tomoka Correctional Institution prepared sometime subsequent to his arrival date there of September 13, 1984 alludes to a "prior statement" in which harper acknowledged "sexually molesting" his own sister. A psychiatric report dated January 31, 1981 at Reception and Medical Center Hospital also noted that, "falccording to his records, the patient practiced incest with his half sisters."
Other documents within Defendants1 Exhibit 15 also recite that Harper has sought protective custody on several other occasions on the grounds of owing money and having been identified as a witness against other inmates.
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163. Harper testified that he checked into protective custody the morning after the rape, telling officials that he wished to do so. He said two other inmates checked in with him. One of the inmates was Larry Turly. Larry Turley told the officers that they were checking in to get away from Fisher (Ibid. Pg. 741).
164. About three days after the three inmates checked in. Superintendent Turner called them to the office of the confinement area (Ibid, Pg. 745). Former inmate Greg Zatler also was called to the meeting (Ibid, Pg. 746). Zatler testified that "Superintendent Turner asked us why we were in confinement, and we told them because of Fisher." Turner replied, according to Zatler, "No, you couldn't be in here because of this inmate. This is one of our best inmates." (Zatler, Pg. 795). Harper recalls telling Turner that Fisher had raped him, to which Turner replied that Harper was lying and could rot in his cell (Harper. Pg. 746). Harper could not understand why Turner "wasn't there to get on Levy Fisher, he was there to get on us." (Ibid. Pg. 747).
165. No documentary evidence has been introduced to establish that either Harper or Zatler was in protective confinement in January 1982. However, corroborative of their joint testimony that they were concurrently in protective custody are letters written February 21 and 26, Zatler to Carl Kirkland. a prison inspector, concerning property that he had lost upon checking into protective custody February 11. 1982 (P.Ex. 5 ) . Among the papers submitted by Defendants as
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Composite Exhibit 14 (Page 34) is a Department of Corrections Daily Record of Segregation showing that Billy Joe Harper was in "P.C." March 1, 1982 through March 8. 1982. Page 34 of Defendants' Exhibit 14, is a Disciplinary Committee Visit sheet that reflects a visit to Harper March 2, 1985 by a committee that included "Floyd. Turner, Arline" and resulted in a notation: "Continue A/C -– Attitude poor."
166. Harper remained in protective custody until another Inmate, Andrew Jackson, enticed him back on the compound with the proposition, voiced through a window of the confinement area, that Jackson would protect Harper on the compound for $10 a week (Ibid. Pg. 744). Lt. Leo Peters testified that he later in 1982 sought out Harper as a witness against Jackson in a criminal prosecution for extortion. See also. P.Ex. 20. Section B.
167. Dr. Caddy found Harper to be significantly depressed and exceedingly angry (Caddy. Pg. 1229). He diagnosed him as suffering from an adjustment disorder with mixed emotional features (Ibid). Knowledge of the earlier purported sexual relations would not have changed the basic diagnosis as to Harper. While such knowledge would influence Dr. Caddy's judgment about the possible apportionment, it would additionally raise the question of preexistent elements that were exacerbated at Glades rather than provoked solely at Glades. Harper's additional, non-rape history did not bear on the legitimacy or veracity that Harper offered with respect to the matter of rape, according to Dr. Caddy. However, it did or
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could bear on the issue of the extent to which Harper now - in retrospect - seeks to focus much of his experiences in protective custody on the question of rape as opposed to other dynamics that also may have been operating within the man (Ibid. Pg. 1291).
168. As to the possibility of Harper's having been raped before Glades, assuming that rape is a statistically remote occurrence, the issue presented by the second rape is not simply an additive probability, but potentially represents even a more substantial issue because of the credibility question that many others would attribute to the individual, as well as the very special problems that the individual, himself, would have faced in the everyday world. Dr. Caddy's view is that a person who has been raped elsewhere, and then is raped at Glades, is in more need of assistance than he would have been if he had been raped on one occasion (Ibid. Pgs. 1301-1302).
6. EDWIN JOHNSON 169. Edwin Johnson arrived at GCI in February 1983 (Johnson, Pg. 1068). About the fourth week after arriving, Johnson received a visit from his mother. Sensing a large crowd of black inmates who he feared might attempt to rob him since there was only one guard patrolling the compound (Ibid. Pg. 1070) Johnson took a detour back to his dormitory, but was accosted 15 feet from the door by a black inmate with a knife who told him that he, Johnson, had one week to either "find you a daddy" or go into protective confinement (Ibid. Pg. 1078). 170. When Johnson told his classification officer about the ultimatum, he was told to either go into protective confinement
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or get a pipe or a knife and fight back. Johnson did not want to fight back because he was nearing parole and was attempting to overcome an earlier eight-year extension he had earned (Ibid, Pg. 1079). Johnson chose to check into protective confinement (Ibid. Pg. 1084). He shared a one-man protective custody cell with two other men (Ibid. Pg. 1085). There were no privileges for inmates in protective custody (Ibid, Pg. 1088). During this time there was no gymnasium access for protective confinement inmates (Ibid. Pg. 1089). There were no programs, such as education, that could have assisted Johnson toward obtaining a parole (Ibid. PR. 1088). Thus, on the advice of the lawyer representing him in connection with the parole, he checked out of confinement after two and one-half months (Ibid).
171. Johnson stayed out of confinement for about two weeks until he was bloodied in a fight with inmates who stole some of his property; the fight occasioned his being taken to be interviewed by Lt. Lawson (Ibid. Pg. 1094). Johnson declined to name his attackers because he was afraid to be a "snitch" (Ibid. Pg. 1095). The next day. one of his attackers, who stood at about 6 feet, one inch tall, and weighed 225 pounds again attacked Johnson, who is 5 feet 11 inches tall and weighs 140 (Ibid. Pg. 1096). After that fight< .Johnson sought a dormitory change from Lt. Lawson. but was denied it. He then checked back into protective confinement for three days (Ibid. Pg. 1097).
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171a. By this point, Johnson had acquired a reputation as a

weakling because he had twice checked into protective

confinement (Ibid, Pg. 1099). Five inmates in the dormitory to

which he was assigned put a blanket over him and beat him.

Johnson checked back into protective confinement the next day

(Ibid, Pg. 1100). The conditions and lack of privileges were

the same, except that the confinement inmates were allowed to

go to the gym (Ibid, Pg. 1101). The gymnasium party was

composed of both administrative and protective confinement

inmates (Ibid, Pg. 1102). As they returned to the confinement

area, one of the administrative confinement inmates hit Johnson

in the head with a metal stool '(Ibid. Pg. 881).

Johnson

received five stitches and was hospitalized for two weeks. He

returned to the protective confinement cells where he waited

until the prison inspector ordered Johnson and Plaintiff

Saunders transferred.

172. The exact dates of Johnson's presence in protective

confinement or within the hospital are impossible to pinpoint.

No incident reports concerning his alleged injuries, no

administrative confinement reports and no medical records have

been presented to the Court, notwithstanding Plaintiffs'

counsels' having subpoenaed all of Johnson's records and

representing to the Court that they had furnished all relevant

50/ The court reporter transposed volumes of the transcript. The volume beginning with a cover sheet numbered 879 follows that volume beginning with a cover sheet numbered 1001. The citations are to the pages as they appear.
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records. Neither has the Defendants' counsel offered any records that conflict with Johnson's testimony.
7. WAYNE JOHN EPPRECHT 17 3. Wayne Epprecht, who is presently serving a sentence of life plus 130 years at Avon Park Correctional Institution, previously was incarcerated at GCI under an earlier commitment (Epprecht, Pg. 627). In February 1981, after having been visited by his sisters and having received $25.00 in cash from them, he returned to his dormitory, paying off various debts along the way. By the time he arrived, he had paid out all but 26 cents. This paucity angered two black inmates who were waiting in the dorm to rob him (Ibid. Pgs. 628-629). One of
Î
them hit him in the face with a pipe. Eppcecht did not see any correctional officers in the wicket at the time of the assault (Ibid. Pg. 629).
174. Epprecht went to a mirror and saw that the left side of his face was stoved in and blood was running out of his nose (Ibid. Pg. 630. He encountered an officer outside of the dorm. The officer took him to the prison hospital, where a nurse said Epprecht needed to go to Glades General Hospital (Ibid, Pg. 631). After several days at Glades General. Epprecht was transferred in a van with o,ther prisoners to the Reception and Medical Center at Lake Butler. During the eight to ten hour trip he was in pain and given nothing to drink in connection with his liquid diet (Ibid. Pgs. 634-635). After surgery. Epprecht was returned to GCI (Ibid. Pg. 638), where he
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saw the two inmates who attached him (Ibid. Pg. 650). They told him they would leave him alone if he would not say anything (Ibid).
175. Epprecht was asked several times what had happened to him (Ibid. Pg. 633). but he never had identified his assailants to officials because he felt it was safer not to "snitch" (ibid, Pgs. 630-631). Superintendent Turner, however, was not one of those officials who inquired of Epprecht. While at GCI. Epprecht feared for his safety in a different manner than he had while serving time in other Florida prisons (Ibid. Pg. 645). At the other prisons, it seemed to Epprecht that.an inmate could get help more quickly than at Belle Glade (Ibid. Pgs. 645-646).
176. In February, 1981, the time at which Epprecht was attacked, 222 of the 266 established and authorized staff positions were filled. Superintendent Turner reported, "we are currently holding 35 positions vacant at this institution to attempt to keep our salary allocation in good shape." (D.Ex. 7 ) . The prison population ranged from 801 at the beginning of the month to 787 at the end. Superintendent Turner noted that "(t¯lhe increasing number of inmates demanding protective confinement takes up most of the available space." (Ibid).
17 7. Epprecht's psychological scarring was less than some of the other plaintiffs. Dr. Caddy diagnosed him as suffering from an adjustment disorder that was rather moderate in nature, was not severe, with some mixed emotional features (Caddy, Pgs. 1148-1149). However, according to Alan M. Wagshul. M.D.. a
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Board certified neurologist, after examining Epprecht and reviewing his medical charts, Dr. Wagshul reports that Epprecht is suffering both reparable and irreparable injuries. The history of left facial trauma, with a fracture of the zygomatic arch and residual palpable deformity, is consistent with the sensory deficit in the area of the facial trauma. In layman's terms, Epprecht suffers from a numbness that forever will be exacerbated by prolonged chewing or changes in the weather and, while it can be alleviated by non-addictive drugs, cannot be eliminated. Additionally. Epprecht suffers from probably a temporomandibular joint dysfunction that is consistent with his subjective complaints of headaches and pain upon chewing. While Epprecht has complained of suffering these symptoms since the incident. February 14. 1981. they could be eliminated by an office visit to a dentist for a realignment of his bite (Wagshul).
8. EDDIE COBB 178. Eddie Cobb. the only black among the named plaintiffs, is a 24 year-old former inmate (Cobb. Pg. 764) who was stabbed in the head and arm (Ibid, Pg. 767). January 27, 1984 by fellow inmate Larry Pryor (Ibid. Pg. 765). Cobb received 18 stitches in his head and 12 in his arm at the prison hospital (Ibid., Pg. 768). His arm carries a visible scar, which the Court saw (Ibid. Pg. 767). and there is scar tissue on his head (Ibid. Pg. 768). Since the incident. Cobb experiences pounding, migraine headaches and dizziness, sensations about which he complained to prison health officials at Union Correctional Institution (Ibid. Pgs. 769-770).
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(.

179. Although Cobb had a number of fights at Glades in which he arguably could be cast as the aggressor. Pryor was the attacker in this instance (Deposition of Larry Pryor, Pg. 1 8 ) , (Testimony of Lt. Peters). Pryor, however, was operating with the protection of Lt. William Barrett (Deposition of Larry Pryor). And after Cobb left the hospital,-he was taken to administrative confinement (Cobb, Pg. 769), where he remained until he was transferred to Union Correctional Institution March 15. 1984. See. P.Ex. 15, Section C (Department of Correction Daily Records of Segregation for Eddie Cobb from Feb. 6, 1984 to March 15, 1984). Pryor was released before Cobb was transferred (Cobb, Pg. 769), notwithstanding the fact that Lt. Peters' investigation revealed Pryor to have been the aggressor (Testimony of Peters).
180. A review of inmate Pryor's prison file reveals repeated documentation of his assaultive nature. A January 21. 1983 memorandum from the Florida Probation and Parole Commission discusses Pryor's "serious pattern of assaultive-violent behavior." An in-house classification team at GCI November 15. 1983 recommended "transfer of the above-mentioned inmate fPryorl for security reasons." Although a transfer of Pryor to Union Correctional Institution was sought, the transfer request was withdrawn January 29. 1985. See, supra. 1198.
9. MICHAEL GORDON 181. Michael Gordon arrived at GCI in late 1983 or early 1984 (Gordon, Pg. 897). He arrived there the least

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pre-institutionalized of the named plaintiffs.' This was the first permanent assignment within the Florida prison system for Gordon. At the time, Gordon, a 41-year-old jeweler who lived in Plantation, had been sentenced to 25 years in prison for credit card fraud. See. P.Ex. 19, Section A. This conviction was subsequently overturned because of incompetence of defense counsel. Gordon v. State, 469 So.2d 795(4th DCA. Fla. 1985). Gordon suffered physically at GCI, perhaps less than any of the other named plaintiffs. He was knocked unconscious once while standing in front of the canteen. (Gordon. Pg. 907). According to x-rays taken three days later, there was no fracture from this injury (Ibid, Pg. 908) His buttocks were burned when inmates who had been drinking "buck" set his polyester underwear on fire (Ibid. Pg. 909); he was hit in the head with a pipe in a robbery in which his mock Rolex watch was stolen (Ibid. Pg. 910).
182. Notwithstanding the fact that Gordon's complaints pale next to those of his co-plaintiff rape victims. Gordon's reaction to life at GCI was such that he lost 100 to 150 pounds (Gordon. Pgs. 916-917). (Caddy, Pg. 1159), and reports that it was the only time in his life when he seriously considered suicide (Caddy, Pg. 1163).
183. While at GCI, Gordon overheard the screams of a homosexual rape (Gordon, Pg. 900), found himself in an environment where blacks controlled a camp where the recreation centered on drug use, drinking and homosexuality (Ibid. Pg. 901), and was was extorted by a guard who one day appeared at

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the prison with a photograph of Gordon's wife and children (Ibid. Pg. 902). Gordon perceived the entire environment as anarchistic and without any constraints (Caddy, Pg. 1163). His wife reports that he talks in his sleep and yells, that he clearly experiences night terror that awakens him. and that he reports to be dreaming about incarceration at Belle Glade and being attacked and feeling vulnerable (Ibid. Pg.¯ 1164). Gordon is suffering from an adjustment disorder with mixed emotional features, some anxiety, and some depression (Ibid).
10. ANTHONY LA MARCA 184. Although Anthony LaMcarca was never homosexually raped or seriously injured in an assault while he was incarcerated at GCI starting in late 1980 or 1981, his complaints concern the lengths to which he had to_go and the conditions he had to endure to avoid such a fate (LaMarca. Pg. 947). 185. First, he escaped on April 13, 1981. According to the Escape and Recapture Report, the reason stated for LaMarca's escape was that he was unable to pay money owed on the compound. LaMarca was threatened bv an inmate skilled in the martial arts black belt the morning of his escape that if he didn't begin paying the black belt $25.00 per week beginning that same day, LaMarca "would see St. Peter that afternoon when I come in from work." (Ibid. Pgs. 955-966). An additional six months in the Palm Beach County Jail was added to LaMarca's sentence for the escape (Ibid. Pg. 957). 186. Homosexual solicitation and harassment began upon LaMarca•s arrival at GCI in the form of catcalls from a line of
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black inmates. LaMatca being referred to as a "fat skinny white boy." This term meant that he was a frail youth (150 pounds) with a large posterior, which was sexually attractive (Ibid. Pgs. 948-949). One inmate in particular, Kenneth Storys. informed LaHarca on LaMarca's third day of incarceration at GCI that LaMarca should pick either Storys or someone like him as a "daddy" or he would be unable to live on the compound (Ibid. Pgs. 950-951). LaMarca did not seek protective custody for about a year after his arrival"because he was embarrassed to be in this vulnerable position (Ibid. Pg. 994). When he did seek help and identified three inmates who were harassing him, these three inmates were not locked up for investigation. Indeed, following his meeting with officials, the three inmates came to the back door of the canteen and threatened LaMarca by telling him, "We know you snitched, cracker." (Ibid. Pgs. 961-962). Three days later one of the three inmates swung a bat at LaMarca. He complained to Lt. Barrett about the situation. Lt. Barrett responded by. giving LaMarca a pocket knife. When the inmate attempted to steal some marijuana that LaMarca was "breaking down" on the dormitory floor, LaMarca stabbed the inmate in the hand (Ibid. Pgs. 964-966).
187. At 2:30 a.m., after LaMarca stabbed the inmate, this same inmate along with two other inmates, came to his bunk demanding sex. They inmates carried a bush axe (Ibid. Pgs. 969-971). LaMarca ran to the wicket and sat in front of it all night, clad only in his underwear. No conversation transpired with the guard (Ibid. Pg. 972). The next morning, when LaMarca
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was found bringing a fiberglass sledgehammer into the dormitory for protection, he was given a disciplinary report (Ibid, pg. 973).
188. In July. 1981. LaMarca checked into protective custody (Ibid., Pg. 974). Three men occupied a two-man cell. LaMarca had no privileges. When he complained to an officer, he was told to go back to the compound (Ibid. Pg. 975). Four months later LaMarca transferred out of protective custody rather than be transferred to Union Correctional Institution (Ibid, Pg. 976).
F. THE LARRY BROWN INCIDENT: BEYOND TURNER
1. THE RAPE OF LARRY BROWN - THE CONTINUED LACK OF AN ADEQUATE INVESTIGATION
189. Larry Brown is somewhat of an eleventh Plaintiff in this 10-plaintiff case. The only plaintiffs' witness who presently is incarcerated at GCI. and therefore a member of the class seeking declaratory and injunctive relief, he is the only inmate who testified for Plaintiffs who was not himself seeking damages.
190. Brown arrived at GCI in June, 1985, was assigned to A-Dorm without any orientation (Brown. Pg. 839), and by 2:30 a.m. the next day (Ibid, Pg. 840) was ordered at knifepoint by three blacks to get out of his bunk and into one beneath it. He was told to lay down and not to scream (Ibid. Pg. 841). As one inmate held a knife to his throat, another removed his blue prison-issue pants and his undershorts, and penetrated him
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(Ibid. Pg. 842). He was anally raped five times, a knife at his throat throughout (Ibid. Pg. 843). When it was over, he went to the bathroom, with three of his assailants following him. They told him to say nothing about.the rape or they would lcill him (Ibid. Pg. 844). He returned to his bunk, as did they - one on each side of him and one beneath (Ibid. Pg. 845). The three rapists talked, smoked marijuana, and chatted all night long. Brown remained awake (Ibid. Pg. 846). Brown told a correctional officer the next morning that he had been raped (Ibid. Pg. 847), but the correction officer appeared disinterested (Ibid. Pg. 847). For the next few days, one, two, or three of the inmates followed Brown about (Ibid. Pg. 848). On the fourth day. Brown was taken to Lt. Minor's office (Ibid, Pg. 850) where Minor said. "I heard you had a line as long as a dorm." 3rown told him what had happened (Ibid. Pg. 851). Minor told him he would put him in protective confinement if Brown would give a written statement, which he d i d 5 1 / (Ibid, P R . 852).
51/ Brown testified he arrived at GCI June 10. 1985 (Brown. Pg. 839), was raped during the predawn of the following day (Ibid. Pg. 840), and four days later was taken to see Lt. Minor (Ibid. Pg. 850). The earliest-dated record of any confinement, however, is the handwritten notation in the Classification Team Review and Action section of a Department of Corrections Report of Protective Confinement Form dated Jurie 25, 1985, stating: "Inmate Brown was placed on A/C status 6-24-85 for bartering. I released him to population, but he wouldn't go. I recommend P/C status for investigation of his story." (D.Ex. 27. Flap B ) . Brown testified on cross examination that he had been in protective confinement before June 25 (Brown, Pg. 1018). The page in the exhibit immediately preceding the report quoted.
(Footnote continued to next page)
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191. Brown attempted repeatedly to bring the matter to the
attention of Superintendent Randall Music. His first
communication, dated June 24, 1985, noted: "I would like to
speak to you about the reason that I'm in protective
confinement, which I'm sure you're well aware of at this
particular reason." (Ibid, Pg. 859). Two days later, Brown
wrote to Music a note that read as follows:
I am sure that you're•aware of what led me into protective custody. I would like to speak to you about this matter. I do not think it's fair for these inmates to escape this kind of incident. I have already tried to contact Classification52/ with no results. I hope that we can get together about this matter. This is my second request about this matter. The first was 6-24-85. (Ibid, Pg. 861).
A third and final writing addressed to Music was dated July 1,
1985, and read as follows:
(Footnote continued from previous page)
supra, is a Transfer Order approving the shipment of Brown from the Reception and Medical Center to GCI. The Transfer Order is dated June 19, 1985. The credibility of his recollection of the rape incident, if not its precise day, is enhanced by the demeanor reported by Dr. Caddy during his interview of Brown. "Mr. Brown presented almost all of the testimony surrounding the sexual attack, and his subsequent feelings, both in tears and with such a level of emotional distress that virtually his entire body was constantly shaking for, and in fact continued to do so for a -substantial period after the interview was completed." (Caddy. Pg. 1181).
52/ The June 21, 1985 request to Classification reads as follows:
I'm sure that you're aware of the incident that took place in A Dorm. I would like to have the information on how to file a grievance in this incident. I also need the proper forms to do this. I thank you for assistance in this matter.
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Good day- I would again like to request your

time in a personal interview in your office as

soon as possible. I know you're a very busily

man and do not have time to spare, but this will

only take a little of your time, also, please

be aware that I have been trying to get in

contact with the Classification Department

without any results. Could you please look into

this matter for me. I would like to know why

there it is so hard to get to these people to

talk to them. Please take action on this as

soon as possible. Thank you. (Ibid. Pg. 863).

t ~¿

192. Brown received no response to any of these requests

(Ibid. Pg. 864). The only response he has had to his rape is a

one-hour meeting with a psychologist at GCI. This is the only

psychological counseling this inmate has received subsequent to the rape53/ (Ibid, -Pg. 864).

¯¯

193. No investigation by Lt. Peters was made initially of

Brown's alleged rape (Peters), despite documentary evidence

that the allegation was known to prison officials. A June 28.

1985 notation in the "Remarks Disposition" section of his

disciplinary Committee Visit form that reads as follows:

"Reviewed Status -– Subject forced to commit sex acts and is

53/ Although Brown is not a damage plaintiff in this action. Dr. Caddy, the Plaintiffs' expert clinical psychologist, nonetheless examined him and found him to have been terribly emotionally disordered as a result of the- experience that he suffered at Glades, describing Brown's condition as one that Dr. Caddy feels Brown is going to have a great deal of trouble ultimately overcoming or resolving, especially in his present environment. His diagnosis of Brown was that Brown, as a result of the rape incident at Glades, suffers from post traumatic stress disorder (Caddy, Pg. 1183).
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unable to cope with pressures on the compound. Will rec. transfer and expedite. Continue P/C status. It is essential." (D.Ex. 22).
194. Brown was transferred to Hendry Correctional Institution July 12. 1985 (Ibid). Within about 30 days, other inmates who had been transferred from GCI had passed the word that Brown was "good pussy" (Brown, Pg. 866). Brown requested and received protective custody at Hendry August 9, 1985. after telling a guard lieutenant there that "I see (sic) that my life is in danger, because I have been approached by several black inmates about having sex with them, and I feel that if I don't they will attack me." (D.Ex. 22, Department of Corrections Report of Administrative Confinement dated August 9, 1985). Brown remained in protective confinement until September 27, 1985, when he was transferred back to GCI (Ibid, Pg. 868). Upon arrival, he immediately checked back into protective confinement. According to a Department of Corrections Report of Protective Confinement form dated September 27. 1985. and included among the papers in Defendants' Exhibit 22, Brown stated to Lt. E.L. Minor:
CHle fears for his life here, at Glades Correction. Inmate Brown stated he was sexually molested here a few months ago and was transferred to Hendry where he was also to be put into Protective Confinement "due to being sexually harassed by inmates who were housed here and knew about his p a s t — (Ibid)
On November 7, 1985. the Protective Confinement Review Team directed a memorandum to Superintendent Music, which memorandum
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is also included in Defendants' Exhibit 22, that read as follows
í
Inmate Brown, Larry W/M #477709 was interviewed by the team on 11-1-85 with reference to his protective confinement status which began 9-27-85. He reports that he was sexually assaulted by an undetermined number of black inmates over the course of a week's time. He did not report it because he was afraid, and everywhere he went one of them followed and watched. He sought protective confinement, was traded to Hendry C.I.. threatened there and checked in, and finally traded again back to Glades C.I. He states that one of the inmates who assaulted him was.Johnny Jones of "A" Dorm. He claims he doesn't know any other names.
We believe his protective confinement should continue, pending investigation of his allegations and possible transfer to another facility. (Ibid).

195. Lt. Peters has still not investigated Brown's allegations (Peters). The only transfer that has occurred concerning this inmate was his transfer from GCI to the Dade County Jail immediately before Thanksgiving pursuant to a Writ of Habeas Corpus ad Testificandum issued by this Court. Music's sole reaction to the missives directed to him by Brown was to observe that he wondered how thick Brown's file of copies would grow over the span of this 40 year sentence.

G. A FINAL WORD: THE FACTUAL INTEGRITY OF PLAINTIFFS' CASE

196. While the Court is not unmindful' of the Plaintiffs'

self interest in testifying, the credibility of Plaintiffs'

testimony is evident from various independent reasons. First.

{

the integrity of the plaintiffs' evidence is compelled by the

dynamics of the way in which this case has developed.

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t

197. These were not plaintiffs who came as a group to
attorneys, seeking out counsel to prosecute a lawsuit. Rather,
these were Individuals who came forward after reading a class
action notice posted throughout the prison system by Department
of Corrections employees. Scattered throughout Florida's
prison system, without the opportunity to converse with each other about their separate,-individual experiences at GCI.54/
54/ Dr. Richard Swanson, the Plaintiffs' first expert, testified that he had interviewed all of the plaintiffs, as well as Larry Brown, in preparation for the trial.
I was also impressed by the heterogenity of the inmates I found.
Recalling how the inmates were constituted into a plaintiff class, as I understand the sequence of events, once the complaint had been filed by the original plaintiff. LaMarca, the class was notified through a notice sent throughout the system.
These people were then found by the attorney rather than them coming together and agreeing to file suit.
These inmates, in no way that I am aware, had talked about this case one among the other, so I was impressed that this was independent information that had not been checked one with the other inmates.
Most of these inmates did not know each other, and if they did. they had had (sic) not seen each other in a significant amount of time.
(Swanšón. Pg. 120)
Dr. Glenn R. Caddy, a clinical psychologist called by Plaintiffs as an expert, testified similarly:
(Footnote continued to next page)
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these inmate plaintiffs did not come together prior to the trial in this action.
198. Secondly, while aware of the natural self-interest of any plaintiff in a suit for money damages, the Court is aware of various disincentives for these plaintiffs to have testified as they did, especially for the rape victims. Not only has their demeanor on the witness stand reflected an obvious _. discomfort in publicly discussing their anal rapes, but the first of the plaintiffs' two psychological expert witnesses testified that the men were in similar, if not more pronounced, states of turmoil during the times that he interviewed them, while the second characterized their interview
(Footnote continued from previous page) Secondly, there is an integrity that comes from a commonality of reporting of incidents where essentially ten people, none of whom either knew each other prior to going to Glades nor who knew each other in Glades, are in a position to provide information about common experiences that provide an internal consistency to the general arguments of the circumstances surrounding the locations of the rape and the nature and the incidence of the rape.
(Caddy. Pgs. 1242-1243)
55/ Dr. Swanson testified: In several occasions, and all of these occasions involved inmates who had reported being raped at GCI, there was obvious emotional tension, anxiety, tearful problems in the inmate reporting the incident. (Footnote continued to next page)
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behavior and verbalizations as consistent with their having been raped.
199. In sum, this Court is convinced, by a combination of its having been able to view the witnesses and judge their credibility, and of its having heard from the plaintiffs1 experts about the integrity that they separately found during their investigations, that the plaintiffs told the truth when they testified about events which occurred while they were incarcerated at GCI.
(Footnote continued from previous page) I was moved by how difficult it was for many of the inmates to talk about the rape process itself. (Swanson, Pg. 119)
56/ Dr. Caddy testified: These men were raped... Those men that have reported being raped present essentially classic profiles of the consequence of rape. I have no reason to believe that any of them have anywhere near the sophistication in my discipline to be able to. a priori, construct for themselves the sort of emotional state that would be necessary to maintain the integrity of that argument under circumstances where a person who has had a fair degree of training in this area is confronting them in a relatively confronting interview set about the circumstances of these incidents. (Caddy. Pg. 1242)
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II. CONCLUSIONS OF LAW

A. THE DAMAGE CLAIMS

1. OVERVIEW

(a) SCOPE OF FEDERAL JUDICIAL INVOLVEMENT

200. At the outset, this Court recognizes that "[tTraditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration." Procunier v. Martinez. 426 U.S. 396 (1974). These problems are "complex and intractable.. .they are not readily susceptib.le of-resolution by [judicial] decree. Most [prisons! require expertise comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." id at 405.
201. However, this court is also mindful that "[clç>urts certainly have a responsibility to scrutinize claims of cruel and unusual confinement...When conditions of confinement amount to cruel and unusual punishment, 'federal courts will discharge their duty to protect constitutional rights."' Rhodes v. Chapman. 452 U.S. 337. 352 (1981) (citing Procunier 426 U.S. at 405-06); Hudson v. Palmer, U.S. . 104 S.Ct. 3194, 3198; 82 L.Ed.2d 393 (1984) (The Court has "repeatedly held that prisons are not beyond the reach of the Constitution."). Id... ("fWle have insisted that prisoners be accorded those rights not

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Fundamentally inconsistent with imprisonment Itself or Incompatible with the objectives of incarceration.").
(b) EIGHTH AMENDMENT PROHIBITIONS 202. The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishment" . The former Fifth Circuit (en bane) has explicitly ruled that:
Confinement in a prison where terror reigns is cruel and unusual punishment. A prisoner has a right to be protected-from the constant threat of violence and from sexual assault. Jones v. Diamond, 636 F.2d 1364. 1373 (5th Cir. 1981) (en bane), citing Withers v. Levine, 615 F.2d 158 (4th Cir. 1980); Gates v. Collier, 502 F.2d 1291 (5th Cir. 1974); Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973).
203. When prison officials have failed to control or segregate prisoners who endanger the physical safety of other prisoners and the level of violence becomes so high...it constitutes cruel and unusual punishment." Jones v. Diamond. supra, 636 F.2d at 1374 citing McCray v. Sullivan. 509 F.2d 1332 (5th Cir.) cert, denied 423 U.S. 859 (1975).
204. Indeed, in order to comply with the eighth amendment prohibition against cruel and unusual punishment, prison punishment must comport with "the evolving standards of decency that mark the progress of a maturing society. Estel·le v. Gamble. 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles. 356 U.S. 86, 101 (1958)). Moreover, such punishment must not
57/ The Eighth Amendment's ban on cruel and unusual punishment was first made applicable to the states by virtue of the Fourteenth Amendment in Robinson v. California, 370 U.S. 660 (1962).
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"involve the unnecessary and wanton infliction of pain." Rhodes
—————
v. Chapman. supra. 452 U.S. at 346 (quoting Gregg v. Georgia. 428 U.S. 153. 173 (1976) (joint opinion)), which includes those punishments that are "totally without penological justification." Id., (quoting Gregg v. Georgia, supra. 428 U.S. at 183.
205. The various Circuit Ccurts of Appeal have uniformly ruled that "[s]ubjecting prisoners to violent attacks or sexual assaults, or constant fear of such violence, shocks modern sensibilities and serves no legitimate penological purpose." See, e.g., Martin v. White, 742 F.2d 469, 474 (8th Cir. 1984).
(c) GENERAL STANDARDS OF LIABILITY 206. In order for prison officials to be liable under a §1983 action based on-a constitutional deprivation resulting from cruel and unusual-punishment, there must be a showing that the prison officials' conduct constitutes a reckless or callous indifference to the rights and safety of the prisoners in his charge. Williams v. Bennett. 689 F.2d 1370. 1380 (11th Cir. 1982) cert, denied. U.S. (1983) (Must allege "a conscious or callous indifference to prisoners' rights"); Miller v. Salem. 728 F.2d 1020, 1024 (8th Cir. 1984) (Reckless disregard of inmates' right to be free from violent attacks by fellow inmates): Wade v. Haynes. 663 F.2d 778 (8th Cir. 1981) (Reckless disregard, gross negligence, callous indifference), aff'd on other ¾rounds sub nom Smith v. Wade. 462 U.S. 30 (1983) ("Reckless or callous indifference by prison officials
-104-

sufficient to award of punitive damages."); Stokes v. Delcambre. 710 F.2d 1120. 1124 (5th Cir. 1983) (Virtual indifference to the safety of prisoners.)
2. APPLICATION OF THE STANDARDS 207. At the outset, the Court recognizes that in determining whether or not Defendant Turner's conduct rises to a level of "conscious or deliberate indifference to [plaintiffs' need! for reasonable protection from violence," Williams v. Bennett, supra, 689 F.2d 1380. a variety of §1983 liability elements interplay. While those elements or factors overlap to some extent and are otherwise difficult to disentangle, the Court nonetheless will review them for purposes of analysis in isolation. Nonetheless it is the sum of these factors when ultimately considered in totality which convinces this Court that Defendant Turner acted with deliberate indifference to Plaintiffs' needs for reasonable protection from violence. Williams v. Bennett, supra.
(a) ELEMENTS OF LIABILITY (1) TURNER'S KNOWLEDGE OF A
PERVASIVE RISK OF HARM
208. Somewhat intertwined and perhaps subsumed into the "callous or deliberate indifference standard" of §1983 prisoner damage liability is the basic notion that the perpetrator (Defendant) knew or should have known of a pervasive risk of harm resulting in victim's (Plaintiffs) injury. See, e.g.. Roberts v. Williams. 456 F.2d 819. 827 (5th Cir. 1971) cert
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denied 404 U.S. 866 (1972) (§1983 liability premised upon a "callous indifference to [inmate sufferingl at the management level, in the sustained knowing maintenance of bad practices and customs."): Patterson v. MacDougall. 506 F.2d 1, 3-4 (5th Cir. 1975) (Personal liability of Director of Corrections both because of his direct involvement and because of his failure to act when improper prison conditions were brought to his attention."); WriRht v. McMann. 460 F.2d 120, 134-5 (2nd Cir. 1972) (Warden held liable financially for damages to inmate where he failed to take corrective action in light of history of previous similar episodes.).
209. The Court has previously found that Defendant Turner in some instances knew and in other instances should have known of widespread illegal activities in general and risks of harm to inmates' security in particular.
210. Turner knew of general inmate security problems through: (1) official documentation, including (i) Turner's acknowledgement to DOC Secretary Wainwright that GCI was "out of control," supra, ¾38. and that staffing problems created a danger to the "staff and inmate population" (emphasis in original), (ii) the 1980 Palm Beach County Grand Jury presentment which recited "lax security precautions" and referred to a free flow of contraband at GCI including drugs, alcohol, gambling, theft, contraband, and extortion among inmates and personnel, supra. ¶4O, (iii) the 1980 Inspector General Management report evidencing continuing security issues including unattended supervision of dormitories, supra. 1142,
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(iv) the 1983 Inspector General Report evidencing continuing "disregard for established procedures," supra. 1145: (2) major incidents of staff corruption including (i) the Lt. Barrett incident, supra. 1(1146-50, and (ii) the illegal activities of Officer Dixon, supra, ¶K51-52; and (3) knowledge of the free flow of contraband as evidenced by the reports of the official documents previously discussed; the activities of Lt. Barrett and Officer Dixon; and the general common reporting in other internal documents of inmates' possession of weapons, drugs, alcohol, and extortion activities.
211. It is less clear to distinguish between what Turner actually knew from what he should have known. The Court is convinced that a prudent administrator should have known assuming Turner did~ñot actually know - of: C D widespread extortion activities of inmates such as Larry Pryor working in complicity with staff officers, supra. 1153; (2) widespread rape and physical assaults on inmates given various objective and discernable indices such as (i) the general free flow of contraband, assaults, extortions and violence that permeated GCI prisoner life between 1980-1984. supra, 1156, (ii) the consistent and disproportionate number of white inmates who "checked into" protective confinement which itself, due to its punitive conditions, should have - assuming that it did not constituted a direct signal of inmate violence, supra. 111(73-74,. (iii) the general wolfing and cat-calls of aggressive black inmates who were vocally signalling vulnerable whites for future sexual attack, supra, 1(77, (iv) overt signs of sexual
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conduct evidenced by hung sheets, inmates groaning in their bunks, and pornographic movies where inmate crying and moaning could be readily heard, supra. H78, (v) direct reporting of rape by certain Plaintiffs (Aldred, Sanders, and Harper) which either were known or should have been known through a normal chain of command to Turner, supra. 1179.
(2) CONDITIONS WERE WITHIN TURNER'S FINANCIAL AND ADMINISTRATIVE CONTROL
212. If full compliance with accepted constitutional practices "is beyond the control of a particular individual and that individual can demonstrate that he accomplished what could be accomplished within the limits of his authority, then he cannot be said to have acted with callous indifference." Williams v. Bennett, supra. 689 F.2d at 1387-1388 (emphasis added) citing Scheuer v. Rhodes. 416 U.S. 232, 247 (1974): Slavin v. Gurry. 574 F.2d 1256. 1262 (5th Cir. 1978). See also, e.g.. Chestnut v. City of Quincy. 513 F.2d 91 (5th Cir. 1975); Madison v. Gerstein. 440 F.2d 338 (5th Cir. 1971).
213. The element of "control" in Williams v. Bennett. supra, is measured both from inherent and financial limitations, Ibid, at 1387, "One such limitation may have been the funding available to comply with the .constitutional norms" as well as more generally matters within an individual's administrative control.
214. The principle of proper management structure employed to reduce the likelihood of the tragedies that have occurred in
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this case have been aptly described by the Chief Judge of the former Fifth Circuit:

One of the critical elements is that the official demonstrate that he has employed efficient management principles so as to minimize the chance of error and maximize the likelihood of full satisfaction of constitutional and statutory obligations. Bryan v. Jones. 530 F.2d 1210 at 1216 (5th Cir. 1976) (en bane) (Brown, C.J.) (concurring)

215. The Court has identified a series of administrative

areas within Turner's managerial control which also impose no

fiscal limitations as evidenced in part by corrective measures

taken by Turner's successors. These include: (1) improper and

inadequate staff training evidenced by gross problems with

'officers' handling of weapons carried to the extreme in the

Barrett incident, supra, ¶46; (2) a staff out of control who

§r

did not report rapes, assaults, and illegal activities U P

through the chain of command, supra. 1166; (3) the failure to

supervise staff and administer measures which would "minimize

the chance of error and maximize the full satisfaction of

constitutional protection." Bryan v. Jones, supra, in (i) not

stationing officers to patrol throughout the dormitories,

particularly at night, and leave the wicket cage, and in (ii)

permitting the obscuring of vision of the officers in the

wicket by allowing inmates to hang sheets', blankets, their

personal property, lockers and other materials resulting in the

impossibility for officers to maximize the protection of

inmates in the dormitory: (4) a shocking failure to employ any

standard procedure to investigate incidents of alleged rapes.

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supra. 1182; (5) the failure to request outside investigative or presecutorial assistance to otherwise make some even minimal attempt to deter rapines and assaults, supra, 1184; (6) the failure to provide inmate movement controls thus reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, supra. 1189; and (7) the failure to transfer know assailants or inmates who should have been known to be assailants out of GCI, supra, 1186.
(3) NOT A SERIES OF ISOLATED INCIDENTS 216. By the nature of the Court's previous findings and conclusions, supra, 1111208-211 ("Turner's knowledge of a pervasive risk of harm") and 1111212-215 ("Conditions Were Within Turner's Financial and Administrative Control") the Court by implication already has addressed the matter, consistently urged by Defendants throughout trial , that Plaintiffs' claims for damages are merely ten separate isolated incidents. To the contrary, the Court already has discussed in detail the
58/ Additionally, Defendants in their Pre-Trial Stipulation maintain as an issue of law which remains for determination by the Court:
5. Whether Eighth Amendment protection, cruel and unusual punishment, extends to isolated incidents of assault, robery and rape as alleged by Plaintiffs. In absence of a •showing that these Defendants acted in a manner of deliberate indifference to conditions that would shock the
conscience of the ordinary person. Plaintiffs
cannot recover under the Eighth Amendment, (emphasis added).
(Pg. 13. 115)
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I
broad "pervasive risk of harm" and "conditions which were within Turner's financial and administrative control."
217. Plaintiffs' claims stem from these far reaching and serious failures of Defendant Turner to properly manage and administer Glades Correctional Institution. See. Bryan v. Jones, supra 530 F.2d at 1216; Donaldson v. O'Lane. 752 F.2d 817, 828 (3d Cir. l·984)(en banc)("When officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such failure would support a claim under § 1983). citing, Murray v. City of Chicago, 634 F.2d 365 (7th Cir. 1980), cert, dismissed sub nom. Finl·ey v. Murray, 456 U.S. 604 (1982).
218. In sum. Plaintiffs' claims are not isolated incidents. They stem from a far ranging and serious failure of Defendant Turner to properly manager GCI.59/
(4) BREACH OF A DUTY IMPOSED BY STATE LAW 219. A "supervisory defendant is subject to §1983 liability when he breaches a duty imposed by state...law. and this breach causes plaintiff constitutional injury." Williams v. Bennett.
59/ Having found thatPlaintiffs' claims do not represent ten isolated separate incidents, it is unnecessary to decide
whether in Smith v. Wade. 461 U.S. 30 (1983) the Supreme Court,
in affirming an Eighth Amendment violation relating to a single isolated incident has thus, sub sllentio. repudiated the principle that an "isolated incident."by its very nature could never rise to the level of "callous indifference" rendering a prison official liable for acts that offend the constitution.
-Ill-

r

c

supra. 689 F.2d at 1381; Sims v. Adams. 537 F.2d 829, 831 (5th Cir. 1976); Beverly v. Morris. 470 F.2d 1356 (5th Cir. 1972); Hesselaesser v. Reil·lv. 440 F.2d 901 (9th Cir. 1971); Scott v. Vandiver. 476 F.2d 238, 241-42 (4th Cir. 1973); McDaniel v. Carroll. 456 F.2d 968. 969 (6th Cir. 1972; see generally Roberts v. Williams. 457 F.2d 819 (5th Cir.). cert, denied. 404 U.S. 866 (1971).
220. Under Florida law, as¯· Superintendent at GCI, Defendant Turner was required to protect "the offender from victimization within the institution" and to develop "a system of due process and internal legality in the institution." 2O.3l5(l)(c), Florida Statutes (1983) (emphasis added).
221. The Florida statutory requirement contained in Section 20.315 provides Plaintiffs with "a clear legal right to be confined in an institution where they are free from victimization by other inmates" and places upon Defendant

60/ Section 2O.3l5(l)(c) provides as follows:
20.315. Department of Corrections
There is created a Department of Corrections.
(1) Purpose - The purpose of the Department of Corrections is to integrate the delivery of all offender rehabilitation and incarceration services that are deemed necessary for the rehabilitation of offenders and the protection of society. The goals of the department shall be:
(c) To provide an environment for incarcerated persons in which rehabilitation is possible. This should Include the protection of the offender from victimization within the Institution and the development of a system of due process and internal legality in institutions, (emphasis added)

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c

Turner "an equally clear legal duty to [have provided Plaintiffs] with such incarceration." Graham v. Vann. 394 So.2d 180, 183 (Fla. 1st D.C.A. 1981) (Mandamus issued to compel the Department of Corrections to comply with legal duty to confine inmates in an institution where they are not victimized by other inmates).
222. As detailed herein. Defendant Turner breached his statutory duty under Florida law which caused Plaintiffs' constitutional injury.
(b) CAUSATION (1) GENERAL STANDARDS 223. Our Circuit has clarified the principle that in prison damage actions of this nature, a "[C]ritical causation issue [here] must be whether each individual defendant was in a position to take steps that could avert the stabbing incident at Holman; but, through callous indifference, failed to do so." Williams v. Bennett, supra. 689 F.2d at 1384. 234. Of necessity, the Court in detail has reviewed the context of the general operational policies, practices, conditions and events existing at the general time Plaintiffs' claims arose, supra, 111136-105; traced Defendant Turner's knowledge of these matters which the Court has concluded reflect a "pervasive risk of harm," supra ¶¶2O8-2U; and reviewed these conditions demonstrating that they were all within a prudent administrator's administrative and financial control.

c

c

225. Having faithfully adhered to our Circuit's guideline of resolving the causation issue which "necessarily entails a very individualized approach, taking into account the duties, discretion, and means of each defendant." Williams v. Bennett. supra, this court in addition has traced the factual details of each Plaintiff which led to their respective injury.
226. Turner's failure to properly and prudently manage GCI matters within his administrative and financial control is a direct cause of Plaintiffs' injuries. The exacting causation link required by Williams v. Bennett, has been amply proven and documented.
(2) PERSONAL INVOLVEMENT 227. It is now settled that in § 1983 actions public officials cannot be held vicariously liable for the wrongdoing of others. Monell v. N.Y. City Dept. of Social Services. 436 U.S. 658. 692, (1978). Thus Defendants are correct when they assert that misconduct by subordinates or third parties cannot be imputed under § 1983 to an official who played no role in causing a deprivation of constitutional rights.

61/ Defendants' position is set forth in their Pre-Trial Stipulation as an issue of law which remains for determination by the Court:
4. Whether Plaintiffs are entitled to
recovery against Turner and Music under a theory
of respondent superior which is not permissible under actions brought under 42 Ü.S.C. §1983.
(Pg. 13,

c

c

228. However, this principle cannot be extended in an

attempt to insulate public officials from S 1983 liability by

requiring that in order to hold a public official responsible

for a constitutional deprivation that official must have

participated literally and directly, or must have been present at any of the Plaintiffs1 rapes/assaults. According to this

reasoning, § 1983 would preclude recovery against public

officials where those officials directly contribute or cause a
>¯··

:

deprivation of constitution rights - although not present or

directly participating in causing the injury ` by merely

exercising "callous indifference" in maintaining policies and

practices which lead to that designation.

229- Such a proposition is in error; § 1983 only{requires

that there be a causal connection between the officials'
Is

*

conduct and the constitutional tort. It does not require

direct personal contact or direct conduct by the Constitutional

violation. Monroe v. Pape. 365 U.S. 167. 187 (l96l)(42 U.S.C.

§ 1983 constitutionally based claims "should be read against

the background of tort liability that makes a man responsible

for the natural consequences of his act."); Williams v.

Bennett, supra. 689 F.2d at 1383 ("[S¯lection 1983 plainly

requires, a causal connection between the Constitutional

deprivation and the defendant's acts or omissions " ) ; Sims v.

Adams. 537 F2d 629, 831 ("§ 1983 requires a degree of causation

as an element of individual liability, but it does not

specifically require personal participation").

C

(

230. In sum, ail that must be shown based upon these principles is that Defendant's conduct was a proximate cause of the Plaintiffs' injury. Plaintiffs have proved such causation in this lawsuit.
3. DEFENDANT TURNER'S GOOD FAITH DEFENSE AND QUALIFIED IMMUNITY
(a) THE STANDARDS 231. Even when prison administrators violate an individual's constitutional rights, they may enjoy a good faith immunity defense to §1983 lawsuits when sued in their individual capacity for damages. Scheuer v. Rhodes, supra. 416 U.S. at 247-8 (1974); Procunier v. Navarette. 434 U.S. 555. 561-62 (1978) (Qualified immunity applicable to protect prison officials); Williams v. Bennett, supra. 689 F.2d at 1385-86 (11th Cir. 1982). 232. The parameters of this defense were clarified by the Supreme Court in Harlow v. FitZReral·d, 73 L.Ed.2d 396 (1982). There, the Court, while reviewing its previous qualified immunity decisions, recognized that the "good faith" defense has both objective. Harl·ow v. Fitzgerald, supra. 73 L.Ed.2d at 408 ("The objective element involves a presumptive knowledge of and respect for "basic, unquestionable constitutional rights." citing Wood v. Strickland, 420 U.S. 308 (1975)). and a subjective aspect. Id.. ("The subjective component refers to 'permissive intentions."'). In refining these concepts, the Court concluded that government officials are shielded from

c

c

liability for civil damages '•[I]nsofar as their constitutional rights of which, a reasonable person would have known (emphasis added) (citations omitted). Harlow v. Fitzgerald, supra. 73. L.Ed.-2d at 410.
233. Harlow v. Fitzgerald, supra, thus refines the qualified immunity defense to a consideration based upon objective factors. Our Circuit, in accord, has interpreted Harlow in such a manner. Williams v. Bennett, supra. 689 F.2d at 1385 ("Thus, objective criteria now govern the evaluation of a good faith defense.").
(b) BURDEN OF PROOF 234. Determinations as to the availability of the qualified immunity defense almost always will turn on an appreciation and analysis of the facts. Imber v. Pachtman, 424 U.S. 409, 419. n. 3; Scheuer v. Rhodes, supra* 416 U.S. at 238-9; and Wood v. Strickland, supra. 420 U.S. at 320-22. As an affirmative defense, the burden in proving the "qualified immunity" defense rests with the Defendant. Gomez v. Toledo. 446 U.S. 635. 640-41 (1980).

(c) APPLICATION OF THE QUALIFIED IMMUNITY DEFENSE

235. There is "no serious question b.ut at the time" these

sexual assaults occurred, it was well-settled that a prisoner

had a "clearly established" Eighth Amendment right to be

(

protected from constant threats of violence. Stokes v.

Delcambre. 710 F.2d 1120, 1125 (5th Cir. 1983); Jones v.

Diamond, supra. 636 F.2d at 1374; Gul·atte v. Potts. 654 F.2d

c

c

1007, 1012 (5th Cir. 1981) (Unit B); Withers v. Levine. 615 F.2d 158 (4th Cir.) cert, denied. 449 U.S. 849 (1980); Gates v. Collier. 501 F.2d 1291 (5th Cir. 1974); Woodhous v. Virginia. 487 F.2d 889 (4th Cir. 1973); McCrav v. Sullivan. 509 F.2d 1332 (5th Cir.) cert, denied. 423 U.S. 859 (1975).
236. To the extent that good faith is defined essentially in objective terms, if Defendant Turner knew or should have known that his failure to take-reasonable steps to prevent Plaintiffs from being sexually assaulted by other inmates violated Plaintiffs' rights under the Eighth and Fourteenth Amendments, then good faith will be defeated. The Court concludes that the law which requires a prison official with knowledge of a pervasive risk of harm to inmates under his charge to take reasonable steps to prevent that harm was "clearly established."
237. Thus, in the context of this case, the Court finds that Defendant Turner cannot claim that he did not know the constitutional standard since it was a "clearly outlined" right at all times relevant to this action and Defendant Turner's "qualified immunity" defense must fail.
4. DAMAGES (a) OVERVIEW 238. Plaintiffs proceed against Defendant Turner in his individual and official capacity and seek monetary damages against this Defendant. Plaintiffs proceed against Defendant Music solely in his official capacity and seek only injunctive relief against this Defendant.

(

c

239. Plaintiffs' suit for damages under § 1983 against Defendant Turner in his individual capacity is not barred by the Eleventh Amendment to the United States Constitution. Scheuer v. Rhodes, 416 U.S. 232 (1974) (Suit under § 1983 against state officials in their individual capacity not barred by the Eleventh Amendment, but the State official is entitled to defense of qualified immunity; Ruiz v, Estelle, 679 F.2d 1115, 1157 (5th Cir. 1982) cert·. denied. 460 U.S. 1042 (1983).
240. The Court is mindful that the judgment against Defendant Turner in his individual capacity for his actions as Superintendent of GCI will be paid by the State of Florida; in 1979 the Florida legislature enacted a statute in which the State agreed to pay for the full amount of a judgment against an employee of the State in "civil rights actions arising under 42 U.S.C. § 1983, or under similar federal statutes — unless the officer, employee, or agent has been determined . . . to have caused the harm intentionally" Section 111.071(9), Florida Statutes (1983)63/. Shinhol·ster v. Graham, 527 F.Supp 1318. 1336-1338 (N.D. Fla. 1981).

62/ The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state.
. U.S. Const, amend. XI
63/ Section 111.071. Florida Statutes (1983) provides as follows:
(Footnote continued to next page)

C
241. However, this statutory provision which provides for
the state to pay judgments against state employees arising out
(Footnote continued from previous page)
111.071 Payment of judgments or settlements against certain public officers or employees
(1) Any county, municipality, political subdivision, or agency of the state which has been excluded from participation in the Insurance Risk Management Trust Fund is authorized to expend available fund to pay:
(a) Any final judgment including damages, costs, and attorney's fees, a;rising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply. If the action is a civil rights action arising under 42 U.S.C. s. 1983. or similar federal statutes, payments for the full amount of the judgment may be made unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally.
(b) Any compromise or settlement of any claim or litigation as described in paragraph (a), subject to the limitations set froth in that paragraph.
(c) Any reimbursement required under s. 111.07 for court costs and reasonable attorney's fees when the county, municipality, political subdivision, or agency of the state has failed to provide an attorney and the defendant prevails.
(2) For Purposes of this section, a "final judgment" means a judgment upon completion of any appellate proceedings.
(3) "Agency of the state" or "state agency." as used in this section, includes an executive
(Footnote continued on next page)

(
of civil rights actions does not constitute a waiver of the State's Eleventh Amendment remedy and thus damages can only be assessed against Defendant Turner in his individual capacity. See. Williams v. Bennett, supra. 689 at 1376-1378 (11th Cir. 1982) (Similar proviso in Alabama law which indemnifies employees for judgment does not constitute a waiver of Eleventh Amendment Immunity).
242. Accordingly, this Court in assessing whether monetary damages should be awarded to Plaintiffs will limit its consideration to whether damages should be awarded against Defendant Turner in his individual capacity.
(b) THE STANDARDS 243. The "policies underlying §1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Robertson v. Wegmann. 436 U.S. 584. 591 (1978) citing Carey v. Piphus. 435 U.S. 247. 254 (1977); Mitchum v. Foster. 407 U.S. 225, 238-242 (1972); Monroe v. Pape. 365 U.S. 167, 172-187 (1961). Section 1983 was intended to create "a species of tort liability" in favor of persons deprived of federally secured rights. Carey v. Piphus. supra. 435 U.S. at 253.
(Footnote continued from previous page) department, a constitutional officer, the Legislature, and the judicial branch. (4) This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits.

:

244. Under Carev v. Plphus. supra. 435 U.S. at 263-264,

compensible damage may not be presumed but must be proven.

However, the "injury in civil rights cases may be intangible"

:

and need not be financial or physical but may include damages

for humiliation and emotional distress." Stallworth v.

Shuler, F.2d ,

(Slip. Op. 1064. 1069) (11th Cir.

December 11, 1985) citing Carey v. Piphus. supra. 435 U.S. at .

263, 64 and n. 20.

245. The Supreme Court has recently recognized that "once

liability is found...the [court¯|...is required to award

compensatory damages in an amount appropriate to compensate

Plaintiff for his loss." Smith v. Wade, 461 U.S. 30, 52 (1983)

(§1983 action'by inmate against prison guard for damages

sustained from beatings and sexual assaults by other inmates).
MÌM¯¯

%

246. Notwithstanding the fact that all of Plaintiffs'

damages are not quantifiable with precision," their injuries

nonetheless give rise to actual consequential damages. Cortiz

v. Naranjo. 667 F.2d 892. 898 (10th Cir. 1981) (§1983 damage

\

. award against law enforcement officials). Additionally, "real

injury could be inferred from the facts" of each plaintiff's

case. Baskin v. Parker. 602 F.2d 1205. 1210 (5th Cir. 1979)

(damages for humiliation and emotional distress appropriate in

§1983 action).

247. Other federal courts have consistently awarded damages

to Plaintiff inmates whose Eighth Amendment rights had been

1

violated. See. e.g.. Wade v. Havnes, 663 F.2d 778 (8th Cir.

1981) (plaintiff awarded $25,000 in compensatory damages and

$5,000 in punitive damages against correctional officer for damages sustained in beatings and sexual assaults by other inmates), aff'd Smith v. Wade, 461 U.S. 30 (1983); Thomas v. Booker, 762 F.2d 654 (8th Cir. 1985) (plaintiff entitled to compensatory and punitive damages from defendant jail officials because of defendants' reckless disregard of plaintiff's right to be free from violent attacks by fellow inmates); Matzker v. Herr. 748 F.2d 1142 (7th Cir. .1982) (plaintiff stated a claim for compensatory and punitive damages from defendant jail officials because of their failure to reasonably protect him from violent attacks by fellow inmates); Martin v. White, 742 F.2d 469 (8th Cir. 1984) (Prison officials were liable for compensatory and punitive damages where they acted in reckless disregard of inmates' right to be safe from assaults by other inmates); Stokes v. Delcambre. 710 F.2d 1120. 1124 (5th Cir. 1983) (plaintiff awarded $70,000 in compensatory damages and $310,000 in punitive damages against jail officials for damages stemming from a violation of his Eighth Amendment right to be reasonably protected from physical assault by other inmates); Davis v. Hazen. 582 F.Supp. 938 ( C D . II. 1983) (mentally ill inmate's estate held entitled to compensatory and punitive damages from jail officials whose actions led to the decedent being beaten to death by a fellow inmate>.
(c) DAMAGES FOR EACH PLAINTIFF 248. Five of the damages plaintiffs are victims of rape. Two of those. David Aldred and Martin Saunders. were diagnosed by Dr. Caddy as suffering from post traumatic stress

disorder647 (Caddy, Pgs. 1185-1186 and 1207). Ronald
Durrance, in addition to the gain time he has lost, has
suffered an adjustment disorder with mixed emotional
features (Caddy, Pg. 1225), as was Harper (Ibid. Pg.
1229). Bronson, who was penetrated with a baseball bat
64/ In the category diagnosed as post traumatic stress disorder, which is one of the profound anxiety disorder categories of the Diagnostic and Statistical Manual of Mental Diseases. Vol. 3. the essential feature is the development of characteristic symptoms following a psychologically traumatic event that is generally outside the range of usual human experience. The characteristic symptoms involve re-experiencing the traumatic event, often a numbing of responsiveness to it or an excessive responding to it: a reduced involvement with the external world; and a variety of what is known as autonomic reactions, physiogic reactions, dysphoric mood and cognitive symptoms (e.g., reactions of rage, reactions of humiliation, reactions oriented towards aggression against the perpetrator of a violent act like rape) (Caddy, Pgs. 1238-1239).
65/ The essential features of the adjustment disorder class, according to the Diagnostic and Statistical Manual of Mental Disorders. Vol. 3. is a maladaptive reaction to an identified psychological stressor that occurs within three months after the onset of the stressor. The maladaptive nature of the reaction is indicated by the impairment in social or occupational functioning or symptoms that are in excess of a normal and expected reaction to the stressor. The disturbance is not merely one instance of a pattern of overreaction. or an exacerbation of an already existent disorder. It is assumed that the disturbance will eventually remit after the stressor ceases or if the stressor persists, when a new level of adaptation is achieved. The new level is classically to be achieved only as a result of a natural remission that sometimes occurs in individuals, or alternatively as a result of a remission or reversal that occurs as a result of therapeutic intervention.
-124-

handle, is suffering an adjustment disorder with mixed emotional features, together with an atypical personality disorder and a sexual identification disorder, although it is impossible to discern specifically what part of the disorder is a direct function of the incident at Glades (Ibid, Pg. 1193). Were the five rape victims, as well as the other plaintiffs that Dr. Caddy interviewed, to be treated outside of prison for the emotional distress resulting from the rapes, each would require an estimated $10,000 to $20,000 in therapy (Caddy. Pg. 1271). Four additionally testified as to the intense physical pain each felt upon being anally penetrated and for some time thereafter (Aldred. Pgs. 816-817), (Saunders, Pgs. 558-559), (Durrance. Pgs. 459 and 472). (Bronson, Pgs. 698-699). That each was experiencing extreme emotional distress can be inferred from their decision to check into, and to remain, in protective confinement where conditions can only be described as punitive (Caddy, Pg. 1265). Considering these factors, including that psychiatric and/or psychological services can and should be provided by the Department of Corrections, the Court hereby awards to each of the sexually assaulted plaintiffs a sum of Thirty Thousand Dollars ($3O.OOO¯) in compensatory damages.
66/ §794.Oll(l)(f), Florida Statutes (1983) provides as follows; "Sexual battery" means oral. anal, or vaginal penetration by. or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object: however, sexual battery shall not include acts done for bona fide medical purposes.

249. A second grouping of plaintiffs were not raped, but suffered physical injuries as a result of assaults. The most severely injured of these is Wayne Epprecht, whose cheek bone was fractured when he was struck with a lead pipe during a robbery. Epprecht, even following surgery, suffers from a probable temporomandibular joint dysfunction, or misallignment of the jaw, which is consistent with the headaches and pain upon chewing of which Epprecht..complains (Wagshull). The jaw problem can be remedied by an office procedure, but has caused Epprecht pain for nearly 5 years - some 1.700 days. Additionally. Epprecht suffers from a permanent sensory deficit in the left cheek that will forever produce sensations of numbness and. upon elongated bouts of chewing, pain (Wagshull). And lastly, Epprecht was diagnosed by Dr. Caddy as suffering from a moderate adjustment disorder with mixed emotional features. Considering all of these factors, and overlaying the permanency of Epprecht's facial injury on the life expectancy of this 33 year old plaintiff, the Court awards Epprecht Seventeen Thousand Dollars ($17,000.00) in compensatory damages'.
250. Two other of the plaintiffs, Eddie Cobb and Edwin Johnson, both suffered injuries that appear to have been serious, but less substantial than Ëpprecht. Cobb was stabbed, requiring 18 stitches in his scalp and 12 on his right arm (Cobb, Pg. 768). has a permanent scar on his right arm (Ibid. Pg. 767), and complains of pounding headaches and dizziness that he previously had not experienced. Johnson was hit in the
head with a stool and was hospitalized for two weeks after
n¢.

receiving five stitches in his scalp (Ibid. Pg. 883). Johnson additionally was diagnosed by Dr. Caddy as suffering from an adjustment disorder with mixed emotional features (Caddy. Pg. 1216). In addition to both their physical, and in the case of Johnson, psychological injuries, Cobb and Johnson were both confined for lengthy periods of time. Cobb was locked in administrative confinement from February 6 through March 15, 1985, notwithstanding the fact that he was the victim, not the aggressor in the fight that preceded his confinement (Peters). See, P.Ex. 15, Section C (Department of Correction Daily Records of Segregation for Eddie Cobb from Feb. 6. 1984 to March 15, 1984). Johnson stayed in protective confinement for his own safety. Considering these factors, the Court awards Six Thousand, Five Hundred Dollars ($6,500.00) in compensatory damages to Cobb and Thirteen Thousand Dollars ($13,000.00) to Johnson.
251. Two plaintiffs were not seriously physically iniured. Michael Gordon, however, was injured psychologically, suffering an adjustment disorder with mixed emotional features (Caddy. Pg. 1164) growing out of a period of incarceration that included two incidents of robbery in which he was hit in the face or head (Gordon, Pgs. 907 and 910), one incident in which his buttocks were singed when a drunken Inmate lit Gordon's polyester underwear on fire (Ibid. Pg. 909), and one incident in which he was extorted by a guard (Ibid. Pg. 902). Mr. Gordon is no longer in prison and cannot avail himself of institutional mental health services. [Dr. Caddy testified that
some of the inmates could need as much as 80 therapeutic visits
-i ?7-

(Caddy, Pg. 1271), the cost of which ranges up to as much as

$125 an hour (Ibid, Pg. 1272)1. Gordon deserves to be

compensated for his emotional distress and the experience he

suffered; the Court awards Gordon Six Thousand Dollars

($6,000.00) in compensatory damages.

252. LaMarca suffered neither physical injury nor any

especially severe psychological damage. He did. however,

endure four months in protective confinement and an additional

six months in a county jail for escape, an escape this Court

interprets as being prompted by the conditions put at issue by

this action, an action initiated pro se by LaMarca. Those 10

months total some 300 days which, if valued for the loss of

privileges that Mr. LaMarca endured while in protective

,{

confinement (120 days) and for the loss of what would otherwise

have been complete freedom (180 days), provide a basis for an

award to LaMarca. The Court awards LaMarca Nine Thousand

Dollars ($9,000.00) in compensatory damages.

253. In summary, the Court finds that each Plaintiff is

entitled to the following award of compensatory damages for

injuries suffered by each Plaintiff as the consequence and

direct result of Defendant Turner's violation of each

plaintiff's constitutional rights:

(i) Anthony LaMarca

$ 9.·OOO

(ii) Martin Saunders

30.000

(iii) Edwin Johnson

13.000

(iv) David Aldred

30.000

(v) Steve H. Bronson, Jr. 30,000

V

(vi) Eddie Cobb (vii) Ron Durrance (viii) Wayne Epprecht
(ix) Michael Gordon (x) Billy Joe Harper

6.500 30.000 17,000
6.000 30.000

B. THE INJUNCTIVE CASE 1. STANDARDS
254. This Court is aware that with respect to several of the allegedly unconstitutional practices of confinement at GCI. the Defendants have instituted changes or improvements. "It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform when there is possibility of resumption." United States v. Oregon State Medical Society. 343 U.S. 326, 333 (1952). As a general proposition, the "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...The defendant is free to return to his old ways." United States v. W.T. Grant Co.. 345 U.S. 629. 632 (1953) (footnote omitted). Although Defendants' efforts to ameliorate or correct the alleged deficiencies at GCI are commendable, they do not deprive this Court of the power to order,.injunctive and/or declaratory relief, where otherwise proper, unless: "(1) it can be said with assurance that •there is no reasonable expectation1 that the alleged violationfsl will recur, and (2) interim relief or events have completely and irrevocably

-129-

eradicated the effects of the alleged violation." County of Los Angeles v. Davis. 440 U.S. 625, 631 (1979) (quoting United

States v. W.T. Grant Co.. supra. 345 U.S. at 633). Defendants bear a "heavy" burden of showing that both of these conditions have been satisfied in order to render moot any allegedly deficient conditions or practices of confinement. County of Los Angeles v. Davis, supra. 440 U.S. at 631.

255. This Court is concerned that the Superintendent of GCI during the trial. Defendant Music, left that position December 13, 1985. Thus, there is no assurance that improvements made by Defendant Music during his tenure at GCI will be continued. Additionally, the Court is of the view that improvements made

by Defendant Music did not completely eradicate the

unconstitutional conditions of confinement.

‡|

2. INJUNCTIVE RELIEF

256. Therç have been beneficial changes at GCI since the

retirement of Defendant Turner as superintendent - e.g.,

expeditious transferring of know "wolves," the barbed-wiring beneath the fence surrounding the confinement area, and the removal from dormitory bunks of such obstructions as towels and lockers. What happened to witness Larry Brown as recently as June, 1985 - and, equally to the point, what has not happened

to any of his assailants, despite this Court's having found Brown to be forthcoming witness - makes patent the need for systemic changes.

257. The Court orders that two committees be established, one of penologists and the other of psychologists or

-130-

psychiatrists, to advise the Court in the formulation of specific injunctive relief.
258. The charter of the committee of penologists shall be to review and develop relevant procedures at GCI. One goal of this committee shall be remedial: to ferret out other rape victims who have not been identified through this litigation, so that they may be provided whatever therapeutic assistance is needed. A second,, more far reaching goal will be prospective: to prevent a recurrence of the assaults, extortions, and homosexual rapes that unfortunately - but not inevitably - have characterized life on the compound at Glades Correctional Institution.
259. The charter of the committee of psychiatrists/ psychologists shall also be two-pronged. The first mission shall be to prescribe a treatment plan for the plaintiffs and witnesses in this action who remain incarcerated. The second will be to develop an internal mechanism within the prison for providing the male rape victims of Glades Correctional Institution the same kind of support that female rape victims on the outside receive from rape crisis centers.
260. The parties shall nominate one member of each committee, submitting the nominees1 names to the District Judge within 30 days of the date of this Order-.- The Court shall name the
67/ For the reasons discussed, supra, in the section on the underreporting of rapes, the Court is of the mind, although it is unnecessary here to so hold, that a number of additional homosexual rapes did occur at GCI.
-131-

third member, who shall be chairman. The committees shall report to the Court within 60 days with an outline of the therapeutic services needed for the instant plaintiffs and witnesses, and with a preliminary plan for the remaining tasks
C. A LOOSE END: IDENTIFICATION OF THE CLASS
261. On April 15, 1984, this Court (Paine, J.) ordered that a class be certified consisting of those persons who are or will be incarcerated at GCI, for purposes of injunctive relief. Defendants have moved this Court to decertify this class on the grounds that none of the named plaintiffs are presently at GCI. Defendants' request is denied.
262. While Defendants are correct that none of the named plaintiffs are presently incarcerated at the GCI, that fact does justify the relief sought by Defendants.
263. It is well settled that where the claim on the merits is "capable of repetition yet evading review." the named plaintiff may continue to litigate the action despite the plaintiff's loss of personal stake in the outcome. Gerstein v. Pugh. 420 U.S. 103, 110, n. 11 (1975). Since seven of the named Plaintiffs continue to be incarcerated within the Florida State prison system, there exists a distinct possibility that they will again be incarcerated at GCI since inmates are subject to reassignment to various institution within the system.
-132-

i
1
¾

264. The "capable of repetition, yet evading review" doctrine is clearly applicable "where the named plaintiff does have a personal stake at the outset of the lawsuit, and where the claim may arise again with respect to that plaintiff." U.S. Parole Commission v. Geraghtv. 445 U.S. 388, 398 (1980) citing Weinstein v. Bradford. 423 U.S. 147, 148 (1975); Roe v. Wade, 410 U.S. 113, 123-125 (1973). The Geraghtv Court reasoned that "[s¯lince the litigant faces some likelihood of being involved in the same controversy in the future, vigorous advocacy can be expected to continue." Id.
265. However, notwithstanding this Court's conclusion that the Plaintiffs may continue to prosecute this class action. even though they are no longer incarcerated at GCI. the Court is still required to examine the ability of the named representative "to fairly and adequately represent the interest of the class." Fed. Rule Civ. Proc. 23(a); Sosna v. Iowa. 419 U.S. 400, 403 (1975); United States Parole Commission v. Geraghty. supra. 445 U.S. at 406-407.
266. In this action, the named Plaintiffs have and continue to adequately represent the interests of the class. It is unlikely that the named Plaintiffs would have interests in conflict with the class and the interest of the class have been competently represented throughout all these proceedings. the trial and during the post-trial activity.' Sosna v. Iowa, supra. 419 U.S. at 403.

-¯m-

267. Finally, prior to decertifying the class on the basis that the named Plaintiffs are no longer class members, this Court would be obliged to provide class members with notice of what has occurred and provide them with an opportunity to come forward as a named Plaintiff class representative. See. U.S. Parole Commission v. Geraghty. supra, 445 U.S. at 407. In view of the Court's finding that the named Plaintiffs are presently adequately representing the class, the Court need not provide any such notice to class members at this time.
III. CONCLUSION 268. In summary, for the reasons detailed in this decision, this Court concludes that GCI was run in a manner that violated Plaintiffs' constitutional rights to not be subjected to "cruel and unusual punishment" and that as a consequence of Defendant Turner's indifference to Plaintiffs1 rights, each plaintiff suffered injuries for which he shall be compensated. 269. Additionally, in order to avoid any recurrence of the way GCI was operated by Defendant Turner, and to ensure that additional improvements will be implemented to address victims of the unconstitutional practices, the Court has ordered the injunctive relief described herein. 270. Finally, as the prevailing party in this action. Plaintiffs are entitled, pursuant to the Civil Rights Attorney Fees Awards Act of 1976, 42 U.S.C. §1988, to an award of attorney fees and litigation expense reimbursement.
-134-

{

(

271. Plaintiffs shall file with the District Judge within twenty (20) days from issuance of this Order appropriate fee/expense submissions and accompanying memoranda as to this issue. Defendants shall respond within twenty (20) days from Plaintiffs' filing. The District Judge may then enter an appropriate Order granting Plaintiffs' attorney fees and litigation expenses consistent with the parties' submissions.
Pursuant to statute, the parties may file and serve, with the District Judge in West Palm Beach, and within ten (10) days of the entry of this Order, their written objections to any portion of these Findings of Fact or Conclusions of Law..
DONE AND ENTERED this % ^ day of Xa wwq^`, , 198Š.

Copies furnished to: Counsel of Record

y
UNITED STATES MAGISTRATE

-135-

ANTHONY LA MARCA, e t a l . , p , ,p n .

D.C.

Plaintiffs,

TILCUDV.

v.
R. V. TURNER, et al., Defendants.

P >_·_.t M . MARCH
o-tn*. o.s. otsT. CT. S.D. Of FIA. · Ft

ll. ACTION k
rrMO If. 82-8196-Civ-PAINE
PARTIAL FINAL
JUDGMENT

. "HÜfl BCÜon came OH. before t h e . court on t h e r e p o r t and recommendation of t h e

Magistrate (DE 128),

·

andftdecision having been duly rendered. ¯ by the Honorable James C. Paine in an order

entered on June 4, 198.7 it is

ORDERED AND ADJUDGED that judgment be and hereby is entered for

plaintiffs LaMarca, Saunders, Johnson, Aldred, Bronson,. Cobb, Durrance,

and Harper and against defendant Turner in accordance with the following

award of compensatory damages:

Certified to b o a true and sorrect copy cí the otiginal.
Rob°·¯* M. March, C!c·rk
. DirtMct Court v;tn District ol Florida
' ^-<A¾-ll·-<*-t¾.
ite.

Anthony LaMarca Martin Saunders Edwin Johnson David Aldred Steve H. Bronson, Jr. Eddie Cobb Ron Durrance Billy Joe Harper

$ 9,000 $30,000 $13,000 $30,000 $30,000 $ 6,500 $30,000 $30,000

Interest on this judgment shall run from the date of judgment until paid,

at the rate of 7.02 percent. It is further

ORDERED AND ADJUDGED that, with respect to the claims of plaintiffs

Wayne Epprecht and Michael Gordon, judgment shall be entered for defendant

and against plaintiffs, the plaintiffs to take nothing. It is further

ORDERED AND ADJUDGED that two committees shall be established to
-é
advise the court in the formulation of injunctive relief, in accordance

with the court's specific directives set out at pages 45-46 of its order
entered on June 4, 1987. This case remains open as to the questions of further injunctive relief and attorneys fees and expenses.

Dated at: West Palm Beach, Florida

Dale: J u n e 4 , 19 87 • ROBERT M. MARCH, C l e r k ,

Deputy Clerk

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
2

3
ANTHONY LA MARCA, MARTIN
4 SAUNDERS, and EDWIN JOHNSON,
individually and on behalf
5 of all others similarly
situated, and DAVID ALÐRED,
6 STEVE H. BRONSON, JR.,
EDDIE COBB, RON DURRANCE,
7 WAYNE EPPRECHT, MICHAEL
GORDON, and BILLY JOE HARPER,
8 individually,

CASE NO. 82-8196-Civ-PAINE

FILED bv

DC·

JÜK •i ¾ & '

9
Plaintiffs,
10

ROBLnT M. V¾RCH CLERK U.S. Dl3T CT
S.D OF FLA. • Ft

V.

)

11

R. V. TURNER, individually in )
12 his former official capacity
as Superintendent of Glades )
13 Correctional Institution,
CHESTER LAMBDIN, in his offi- )
14 cial capacity as Superinten-
dent of Glades Correctional )
15 Institution, and the STATE OF
FLORIDA,
16

Defendants.
17

18
ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE
19
This cause comes before the court on the report and
20
recommendation of the Magistrate (DE 128), defendants' amended
21
response and objections (DE 155), and plaintiffs1 reply (DE 170).
22
The court has studied these submissions and has reviewed the
23
voluminous transcripts, exhibits, and other materials in the case
24
file as well as the relevant authorities. Now being fully
25
advised, the court renders the following memorandum and order.
26

A0 72 lev.8/82)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ¡ 25

I. BACKGROUND This class action for damages and injunctive relief was brought by inmates who claim that their federal constitutional rights were violated when they were gang raped or otherwise assaulted while incarcerated at the Glades Correctional Institution (GCI), a state prison in Belle Glade, Florida. The procedural history of the case is set out at length by the Magistrate. Briefly, this litigation was commenced on May 14, 1982 with the handwritten pro se complaint of Anthony LaMarca, who alleged that he was subjected to ongoing physical violence and harassment by other GCI inmates because he refused to participate in homosexual activity and that prison officials failed to act to alleviate the situation (DE 1 ) . As the lawsuit continued, counsel was obtained and the complaint was amended several times (DE 23, 62, 93, 129, 131). On April 13, 1984, the undersigned district judge ordered that for purposes of injunctive relief the case proceed as a class action defined as those persons within the Florida prison system who are or will be incarcerated at GCI (DE 47). The third amended complaint contains claims for damages by ten inmates. Named plaintiffs LaMarca, Saunders and Johnson also seek equitable remedies on behalf of the class. Defendant Turner is sued in his individual capacity as former superintendent of GCI. Defendant Lambdin, the current

26

A0 72 (Rev 8/82)

superintendent, is sued solely in his official capacity for
1
purposes of injunctive and equitable relief (DE 129). The State 2
of Florida is a defendant for purposes of attorneys' fees and 3
expenses. 4
The district court referred the case to United States 5
Magistrate Peter Nimkoff for a report and recommendation pursuant 6
to Magistrate Rule l(f) of the Local Rules of the Southern 7
District of Florida. The Magistrate conducted two weeks of 8
evidentiary hearings, reviewed deposition testimony and numerous 9
exhibits, and heard oral argument. The Magistrate then filed a 10
135-page report and recommendation containing findings of fact 11
and conclusions of law (DE 128) which found Turner liable to the 12
ten named plaintiffs in the aggregate amount of $201,500 and 13
recommended the creation of two committees to assist the court in 14
formulating specific injunctive relief. 15
Defendants filed extensive objections to the Magistrate's 16
report in accordance with Local Magistrate Rule 4(b) (DE 155). 17
Defendants dispute the Magistrate's failure to grant a 18
continuance, to grant a jury trial, and to recuse himself from 19
the proceedings, and also lodge numerous objections to specific 20
findings of fact and conclusions of law. Plaintiffs submitted an 21
equally extensive reply (DE 170). 22
23
24
25
26
AO72 (Rev.8/82)

II.

STANDARD OF REVIEW
1

The court's review of the Magistrate's findings and
2

recommendations is governed by a de novo standard:
3

A District Judge shall make a de novo

4

determination of those portions of the

report or specified proposed findings

5

or recommendations to which objection

is made and may accept, reject, or modify,

6

in whole or in part, the findings or

recommendations made by the Magistrate.

7

The District Judge, however, need conduct

a new hearing only in his discretion or

8

where required by law, and may consider

the record developed before the Magistrate,

9

making his own determination on the basis

of that record. The District Judge may

10

also receive further evidence, recall

witnesses, or recommit the matter to the

11

Magistrate with instructions.

12 Magistrate Rule 4(b), Local Rules of the Southern District of

13 Florida; accord 28 Ü.S.C. § 636(b)(l) (1982).

14

The Supreme Court has held that, in providing for a de

15 novo "determination" rather than a de novo hearing, "Congress

16 intended to permit whatever reliance a district judge, in the

17 exercise of sound judicial discretion, chose to place on a

18 Magistrate's proposed findings and recommendations." United

19 States v. Raddatz, 447 U.S. 678, 676 (1980). The former Fifth

20 Circuit has held that, in situations involving the constitutional

21 rights of a criminal defendant, a district court shoul¤ not enter

22 an order inconsistent with the Magistrate's credibility

23 determinations without personally hearing the live testimony of

24 the witnesses whose testimony is determinative. Louis v.

25

26

AO72 'R·v 8'82)

Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980).1 Although the 1

Louis court expressly limited its holding to criminal cases, see 2

id. n.3, the exercise of sound judicial discretion compels this 3

court to extend substantial deference to the Magistrate's 4

credibility choices absent counterveiling considerations. In a 5

criminal case which preceded Louis, the Fifth Circuit stated: 6

In our view it would be a rare case in

7

which a district judge could resolve

credibility choices contrary to the

8

recommendations of the magistrate with-

out himself having had an opportunity

9

to see and hear the witnesses testify.

Certainly, in such a rare case there

10

should be found in the transcript an

articulable basis for rejecting the

11

magistrate's original resolution of

credibility and that basis should be

12

articulated by the district judge.

13 United States v. Marshall, 609 F.2d 152, 155 (5th Cir. 1980).

14

III.

15

FAILURE TO GRANT JURY TRIAL

16

Defendants first object to the Magistrate's failure to

17 grant a jury trial. The Magistrate found that defendants waived

18 that right by failing to make a demand within ten days of

19 November 2, 1983, when they filed an answer to the first amended

20 complaint (DE 23, 41). Defendants first demanded a jury trial on

21 November 8, 1985, over two years later, in response to the second

22

23

24 ^Decisions of the former Fifth Circuit filed prici¯ to October 1, 1981 constitute binding precedent in the Eleventh Circuit.
25 Bonner v. City of Prichard, 661 F.2d 1206, 1209 (]lth Cir. 1981)(en bane).
26 ¦

AO72 (Rev. 8/82)

amended complaint (DE 62, 69, 83). Following the Magistrate's
1
denial of a jury trial (DE 105), defendants filed an emergency
2
appeal with the district court (DE 104), which the undersigned
3
denied (DE 112).
4
Defendants again argue that the second and third amended
5
complaints introduced new issues into the lawsuit which merited a
6
jury trial and that therefore their demand was timely. As the
7
Magistrate correctly concluded, the right to jury trial is waived
8 9 by a failure to make a demand within ten days of the "last
pleading directed to such issue." Fed. R. Civ. P. 38(b). If the
10
original pleadings effectively waive jury trial, the right cannot
11
be revived by amending the original pleadings. Walton v. Eaton
12
Corp., 563 F.2d 66, 71 (3d Cir. 1977). A jury trial may be
13
demanded, however, for any "new issues" in the amended pleadings.
14
Amendments not introducing new issues do not give rise to a
15
demand for jury trial. Guajardo v. Estelle, 580 F.2d 748, 753
16
(5th Cir. 1978).2
17
What constitutes a "new issue" is the bone of contention.
18
The court's review of the law on this subject has yielded less
19
than clear results. The former Fifth Circuit has said that
20
"[t]he term 'new issues' has been interpreted to mean new issues
21
22
23 2Although Fed. R. Civ. P. 39(b) permits a court in its discretion 24 to grant a jury trial after the period for 3 timely demand has
run, defendants insist that they were entitled to a jury trial as
25 of right and that therefore a Rule 39(b) analysis is
inappropriate (DE 155, at 5 ) .
26
AO72 (Rev.8/82)

of fact and not new theories of recovery." Id_. at 753.
1

Notwithstanding, not every new fact question has been held to
2

give rise to a jury trial. For example, in Lanza v. Drexel &
3

Co., 479 F.2d 1277 (2d Cir. 1973)(en bane), a securities case,
4

the court held that a claim for punitive damages and an
5

allegation of willfulness were not new issues within the meaning
6

of Rule 38:
7

The willfulness and falsity as of a

8

particular date merely clarified "the

same general issues" raised in the

9

original complaint. Moore v. United

States, 196 F.2d 906, 908 (5th Cir.

10

1952). Kircher had been put on notice

of the underlying facts and basic

11

legal theory--frauâ--upon which plaintiffs

sought relief, and the character of the

12

suit was in no way changed by the

amendments.

13

Id. at 1310 (emphasis added). One district court has articulated
14

the following standard:
15

The test to be employed by a court

16

in ruling on a motion to strike a

jury demand is whether the "new

17

issues" alleged in the amendments

"touch ... the same general issues"

18

raised by the original pleadings,

Roth v. Hyer, 142 F.2d 227, 228

19

(5th Cir. 1944), or whether the

issues contained in the amended

20

complaints "were in any material

way different from those presented

21

by the original [complaint]."

Connecticut General Life Insurance

22

Co. v. Breslin, 332 F.2d -928, 931

(5th Cir. 1964) .

23

Reading & Bates Construction Co. v. 3aker Energy Resources Corp.,
24

96 F.R.D. 564, 565 (S.D. Tex. 1983)(exphasis added).
25

26

AO72 (R·v8/82)

In this case, the second and third amended complaints
1
introduced claims for damages by seven new plaintiffs. As
2
defendants contend, each of these claims requires proof as to
3
whether the alleged incidents occurred, whether the evidence
4
establishes a causal connection with defendants1 conduct, and
5
whether damages have been sustained. All of these questions
6
raise "new" factual issues in the plainest sense of the word.
7
The peculiar circumstances of this case, however, suggest
8
a contrary result. First, the record of the evidentiary hearings
9
conducted by the Magistrate provides the court with 20/20
10
hindsight on the nature and materiality of the new factual issues.
11
Second, a class action posture requires that the plaintiffs raise
12
common questions of fact. See Fed. R. Civ. P. 23(a). Of
13
particular relevance is the testimony of the named plaintiffs and
14
of Dr. Richard M. Swanson, plaintiffs1 expert witness in the
15
field of correctional psychology. Considered as a whole, this
16
evidence shows that plaintiffs1 claims possess a factual
17
congruity of sickening proportion. Their stories are strikingly
18
similar, reflecting common experiences of harassment, threats,
19
attack, official indifference, and resulting damage. The
20
similarity of the factual questions is particularly apparent in
21
the court's analysis of the causal connection between Turner's
22
acts or omissions and plaintiffs' claims. See infra at 39-42.
23
Thus, the issues raised by the seven new plaintiffs in the
24
second amended complaint "touch ... the same general issues"
25
26
AO72 <R·v.8/82>

raised in the first amended complaint, Roth v. Hyer, 142 F.2d
1
227, 228 (5th Cir. 1944), and are not materially different from
2
the original issues, see Connecticut General Life Insurance Co.
3
v. Breslin, 332 F.2d 928, 931 (5th Cir. 1964); see also Reading
4
& Bates, 96 F.R.D. at 565. The first amended complaint put
5
defendants "on notice of the underlying facts and basic legal
6
theory ... upon which plaintiffs sought relief, and the character
7
of the suit was in no way changed by the amendments." Lanza, 479
8
F.2d at 1310. Having failed timely to demand a jury trial in
9
response to the first amended complaint, defendants effectively
10
waived their right to such a trial, and their objection is 11
overruled. 12
IV.
13
FAILURE TO GRANT CONTINUANCE
14
Defendants next object to the Magistrate's failure to
15
grant a continuance of the evidentiary hearings. This court has
16
previously denied defendants1 emergency appeal of the
17
Magistrate's ruling (DE 104, 112).
18
Orders concerning the conduct of a trial, such as
19
continuances, "are peculiarly within the jurisdiction of the
20
trial court" and "will not be disturbed except upon a showing of 21
abuse of discretion, and then only upon a showing that such abuse 22
of discretion resulted in substantial harm to J:he parties seeking
23
relief." Edward Leasing Corp. v. ühlig & Associates, Inc., 785
24
F.2d 877, 881-82 (11th Cir. 1986).
25
26
AO72 IR«v 8/82)

Defendants principally assert that they were not prepared
1
to defend against the damage claims because circumstances forced
2
them to depose the seven new plaintiffs as well as plaintiffs'
3
expert witnesses at the last minute. Further, defendants contend
4
that these depositions revealed the names of new witnesses with
5
knowledge of plaintiffs' claims but defendants had no opportunity
6
to depose them.
7
The court is not persuaded that these circumstances
8
justified a continuance. Defendants had already been granted one
9
continuance from November 4, 1985 to a special setting on
10
December 2, 1985. In that order the Magistrate pointed out that
11
defendants had had notice of the claims of the seven new
12
plaintiffs at least since September 1 (DE 80). While it is true
13
that discovery continued after the evidentiary hearings had
14
begun, such a schedule does not appear to have dampened the
15
energy and enthusiasm of competent counsel for both sides.
16
Defendants were able to depose the seven new plaintiffs on
17
November 13-15. Defendants do not explain, however, why this
18
accelerated discovery schedule precluded them from deposing the
19
newly-revealed witnesses before or after the commencement of
20
trial on December 2, particularly considering that these new
21
witnesses appear to be prisoners in defendants' custody.
22
Defendants' assertion that they were unprepared to try this case,
23
moreover, is belied by their effective cross-examination of
24
plaintiffs' witnesses. Most important, defendants have
25
26
AO72 I«·v.8/B2)

11
1 demonstrated no actual prejudice. Accordingly, defendants'
2 objection to the Magistrate's failure to continue the trial is
3 overruled.
4 V.
5 FAILURE OF MAGISTRATE TO ENTER RECUSAL
6 During the testimony of Dr. Swansonƒ defendants first
7 became aware that the Magistrate had visited GCI in the early
8 stages of this litigation. Judge Nimkoff told counsel that in
9 1982 he had conducted an informal hearing of LaMarca's claim, as
10 was often his custom in prisoner cases. Also present at that
11 unrecorded proceeding were Joe Belitsky of the Attorney General's
12 Office, representing the State, and GCI Assistant Superintendent
13 Arline. LaMarca related to the court his concern for other
14 inmates who had been abused. Belitsky and Arline assured the
15 Magistrate that a full investigation would take place. No such
16 inquiry ever occurred, and Turner testified that he was unaware
17 that these assurances were made to the court (DE 128, at 30-31).
18 At trial defendants requested Judge Nimkoff to recuse himself,
19 but the Magistrate denied that he would become a witness in the
20 suit and accordingly refused the request.
21 A judicial officer is required to disqualify himself in a
22 proceeding in which he has personal knowledge of disputed
23 evidentiary facts concerning the proceeding. ABA Code of
24 Judicial Conduct Canon 3(C)(l)(a) and (d)(iv); 28 U.S.C. § 455
25 (1982). Defendants argue that the Magistrate relied upon these
26
AO72 (Rev.8/82)

12

1
events as evidence establishing either Turner's knowledge of
2

alleged conditions at GCI or his failure to act on those
3

conditions after he he was put on notice.
4

5

As defendants point out, the 1982 proceedings conducted at

6 GCI were nonrecord,-and no witness testified concerning the

7 Magistrate's recollection of the events. Notwithstanding,

8 knowledge acquired by a judge while he performs judicial duties

9 does not constitute grounds for disqualification, united States

v. Grinnell Corp., 384 U.S. 563, 583 (1966). Where it is alleged
10

that a judge has personal knowledge of disputed evidentiary facts
11

concerning a proceeding such that he should recuse himself
12

pursuant to 28 U.S.C. § 455, the information or knowledge must
13

stem from an extrajudicial source to warrant disqualification.
14

United States v. Coven, 662 F.2d 162, 168 (2d Cir. 1981), cert.
15

denied, 456 U.S. 916 (1982). Judge Nimkoff's 1982 visit to GCI
16

was undisputedly conducted as part of the instant proceeding and
17

occurred in the presence of counsel for the State. See United
18

States v. State of Washington, 459 F. Supp. 1020, 1093-97 (W.D.
19

Wash. 1978), aff'd, 645 F.2d 749 (9th Cir. 1981). Defendants,
20

moreover, conceivably could have called Belitsky or Arline to
21

testify to their memory of the proceeding.
22

Defendants finally argue that the Magistrate was inclined
23 to rely on the 1982 hearing as evidence tending to establish
24

notice to Turner or Turner's failure to act. The transcripts
25

disclose that the Magistrate asked questions of several witnesses
26

AO72 (Rev.8/82)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ¦ 22 23 ¦
24 i ¡
25 i
¦¦ 26 !

regarding that hearing. In his report and recommendation, however, the Magistrate states that those events serve "merely to underscore Plaintiffs' position that GCI, under the Turner administration, was an institution not under the control of that Defendant" (DE 128, at 31). Thus, the Magistrate did not accord those events with dispositive weight, Ç_f. State of Washington, 459 F. Supp. at 1095. In any event, disregarding the account of the 1982 hearing, the record contains more than enough evidence to support the Magistrate's findings and conclusions regarding Turner's control of GCI. The objection is overruled.
VI. OBJECTIONS TO FINDINGS OF FACT The court next will address in turn each of defendants' objections to the Magistrate's findings of fact and will analyze their significance to the overall disposition of the case. The numbers preceding each paragraph correspond to the paragraph numbering in the report and recommendation. ¶3l. As plaintiffs concede, defendants' objection should be sustained. Turner was superintendent of GCI from mid-1976 to his retirement on July 31, 1984. ¶32. The racial breakdown of the GCI inmate population in 1985 is somewhat relevant to the issue of injunctive relief. The Magistrate's finding that approximately sixty percent of the population was Black and the remainder White or Hispanic is generally supported by the evidence which concededly was not the

AO72 (Rev.8/82)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
e A
25 ¡

most competent proof. Although the documentary evidence contains no support for the conclusion that the figure for Whites included Hispanics, there was testimony to that effect. Objection overruled.
¶33. Although defendants are correct that Music estimated the Hispanic population at seven percent (Music, DE 160, at 133), the evidence supports the inference that that percentage may have been higher at times. Defendants also contest the definition of "close custody" prisoners; however, the Magistrate did not define the term. Objection sustained in part and overruled in part; the Magistrate's finding is modified accordingly.
¶36. Defendants protest the Magistrate's overall characterization of factors present at GCI such as "wholesale manufacture of prison wine," "regular screenings of sexually explicit videotapes," and "maintenance of an ill-assorted guard corps whose members the inmates perceived as regularly trafficking in contraband, extortion and neglect." Defendants admit that instances of these factors appear in the record but far less frequently than the Magistrate implied. The record supports findings that prison wine was prevalent at GCI, that sexually-explicit films were shown, and that many of the guards were perceived as corrupt or at least neglectful. Although the Magistrate's language is somewhat hyperbolic, the objection is overruled.

AO72 (Rev.8/82)

138-39. Defendants argue that the Magistrate implied that 1

Turner was aware of all of the conditions at GCI relating to 2

plaintiffs' claims and that two letters Turner wrote to Louie L. 3

Wainwright, secretary of the Florida Department of Corrections 4

(DOC), constitute admissions of GCI's unsafeness. It is apparent 5

from the letters in evidence, however, that Turner's comments 6

must be viewed in the context of his reporting a staffing 7

8 shortage to his superior. Objection overruled.

9

Defendants make much of the relevance to this litigation

of the accreditation of prisons and GCI in particular by the 10

American Correctional Association. The Magistrate found that the 11

GCI accreditation had "virtually no significance" to this lawsuit 12

because accredited prisons have been found unconstitutional by 13

courts. Having considered the GCI accreditation along with the 14

remainder of the evidence, the undersigned district court finds 15

it of marginal relevance in this case. Objection overruled. 16

•

¶4O. On January 30, 1980, the Palm Beach County Grand

17 Jury issued a presentment regarding conditions at GCI (pltf. ex.

18 4 ) . Although the investigation was apparently provoked by

19 shortages in meat supply, other security issues were addressed.

20 Defendants' objection to the report's admissibility in evidence

21 on the ground of hearsay is overruled pursuant to Fed. R. Evid.

22 803(8)(C) and is also overruled on the basis of relevance because

23 the report is germane at least to the question of notice to

24 Turner.

25

26

AO72 (Rev.8/82)

Defendants again complain about the Magistrate's use of
1
the phrase "a free flow of contraband." The grand jury heard
2
testimony of lax security at GCI as well as "many allegations and
3
accusations of drugs, alcohol, and other contraband, gambling,
4
theft, confiscation, and payoffs among the inmates and personnel
5
of GCI." The report stated that alcohol use and its manufacture
6
was apparently "prevalent." Pltf. ex. 4, at 6. That such
7
contraband was freely flowing at GCI is a reasonable construction
8
of the grand jury's findings, and the objection is overruled.
9
¶42. On August 26-29, 1980, the DOC Office of the
10
Inspector General issued a report on its management review of GCI
11
(pltf. ex. 4 ) . Among other things, the report noted a serious
12
lack of supervision on the compound due to staffing shortages.
13
The Magistrate simply cited this portion of the report and did
14
not seem to hold Turner personally responsible for staff
15
shortages. Accordingly, the objection is overruled.
16
¶44. Defendants dispute the Magistrate's finding of low
17
morale among GCI staff. The district court believes the record
18
contains sufficient evidence to support this finding. This
19
evidence includes an employee questionnaire which reflected that
20
staff members felt that on-job training and the number of
21
available staff were inadequate as well as the various witnesses'
22
perception of staff apathy. Objection overruled.
23
¶45. The Office of the Inspection General issued a second
24
GCI management report approximately three years later, on
25
26 li
AO72 (R«v.8/82)

September 19-21, 1983 (pltf. ex. 6 ) . The management report 1

supports the Magistrate's finding of some laxity in security, 2

which included improper control and supervision of inmate 3

4

movement from one location to another and inadequate staffing of

5 the perimeter posts (jj3. at 8-9). Objection overruled.

6

¶¶46-5O. The Magistrate found that the use of excessive

7

force by Lieutenant William Barrett when he was acting chief

8 correctional officer at GCI was relevant to Turner's management

9 of GCI. In brief, Barrett was summoned from a local festival in

Belle Glade to the prison after a fight broke out in a dormitory. 10

Barrett was accompanied by Sergeant Rickey Hayes and Lieutenant 11

L.A. Peters, GCI's internal inspector. All three had been 12

drinking. Barrett and Hayes had their faces made up like clowns. 13

Although the incident had been largely quelled, Barrett took a 14

loaded shotgun into the compound and used it to beat several 15

inmates in the back of the head. 16

As plaintiffs emphasize, the Barrett incident is relevant 17

not as a showing of improper use of force but as an illustration 18

of Turner's reaction to the situation. The incident report of 19

the Office of the Inspector General states that on the night of 20

the incident Turner advised Barrett to go home and rest and that 21

Turner did not feel the situation warranted notification of a 22

prison inspector (pltf. ex. 9, at 5 ) . Defendants are correct to 23

add that Turner eventually notified the inspector general, who 24

sent a team to GCI within three days of the incident (Swanson, DE 25

26

AO72 (Rev.8/82)

117, at 213-14). Swanson criticized Turner for not immediately
1
suspending Barrett and taking away his gun and badge rather than
2
merely telling him to go home and rest. Significantly,
3
defendants do not object to the Magistrate's finding at ¶49 that
4
Barrett remained functioning as a correctional officer for at
5
least a full week after the incident. It is clear that the
6
Magistrate did not attribute undue weight to the Barrett incident.
7
Objection overruled.
8
The Magistrate also related Swanson1s testimony concerning
9
the transcript of Turner's interview with one of Barrett's
10
victims (pltf. ex. 9, subex. 13). The Magistrate quoted
11
Swanson's testimony that the inmate's reporting of wine-drinking
12
among the prisoners did not appear to surprise Turner. Contrary
13
to defendants' assertion, the district court does not believe
14
that the Magistrate found that Turner "failed to register
15
appropriate outrage" at this revelation. The Magistrate simply
16
quoted Swanson's opinion in a footnote and did not comment on it
17
in any way. Objection overruled.
18
f¶51-52. Defendants also challenge as irrelevant the
19
Magistrate's findings regarding the investigation^ and
20
eventual dismissal and arrest of GCI correctional officer
21
Clarence Dixon. As defendants note, Turner did testify that,
22
although the investigation was hindered by several obstacles, he
23

24

25

investigation occurred in mid-1984 rather than 1974, a

probable typographical error in the report and recommendation.

26

AO72 (R·v.8/82)

ordered it to continue. Turner's persistence, however, does not
1
negate the Magistrate's finding that if Dixon's employment
2
application had been properly screened he probably would not have
3
been hired at all. Objection overruled.
4
¶53. Defendants again protest the Magistrate's use of the
5
phrase "wholesale staff corruption." The Barrett and Dixon
6
reports and the testimony of alleged inmate-enforcer Larry Pryor
7 8 obviously do not in themselves impugn the integrity of the entire 9 GCI security staff. Barrett, however, was one of GCI's
top-ranked security officers. Further, the testimony of the
10
inmate-witnesses discloses the perception of extensive staff
11
corruption. Objection overruled.
12
¶56. The Magistrate agreed with Swanson's conclusion that
13
the GCI staff or administration took little or no effort to
14
control the extensive contraband at the prison. Defendants
15
complain that the Magistrate ignored their evidence of
16
substantial measures to control the flow of contraband during
17
Turner's regime. Both sides have done a heroic job of providing
18
citations to the evidence supporting their respective positions.
19
The district court has considered all the evidence as well as the
20
possible biases of the witnesses. The record as a whole supports
21
the Magistrate's conclusion that little or no effort was taken to
22
control illicit activity at GCI, resulting in readily-available
23
contraband. Objection overruled.
24
25
26
AO72 (Rev.8/82)

1157-58. The Magistrate £ound that evidence of several 1
incidents involving use of firearms tended to show inadequate 2
staff training. Defendants claim that the Magistrate exaggerated 3
the significance of these occurrences and that the GCI staff was 4
in fact well-trained. The district court finds that the firearms 5
incidents bear somewhat on the issue of staff training. 6
Objection overruled. 7
159. Defendants' objection to the finding of low morale 8
among staff is overruled for the reasons stated in supra ¶44. 9
The district court agrees with defendants' assertion that 10
Turner is not solely to blame for high staff turnover and 11
vacancies. As plaintiffs and defendants note, the staff turnover 12
and vacancy rates declined in 1982 and continued to decline 13
through 1984. The relevancy of these observations, however, is 14
not critical to the resolution of this case, because six of the 15
ten individual plaintiffs were raped or assaulted after the 16
turnover and vacancy rates had declined in 1983 and 1984. The 17
Magistrate's findings are modified in accordance with the 18
district court's observations in this paragraph. 19
161. Defendants take issue with the finding that the 20
individual plaintiffs' claims are directly related to the lack of 21
staff supervision due to Turner's failure to station the officers 22
properly. The objection is overruled for the reasons stated in 23
infra ¶I!62 and 63. 24
25
26
AO72
ID... O/R?\

162. During the Turner administration, 6CI inmates were
1
in the habit o£ hanging sheets, towels, clothes, and personal
2
lockers from the bunk beds. These obstructions obscured activity
3
in the bunks from the view of the officer stationed in the cage
4
or "wicket" at the front of each dorm. The showers at the back
5
of the dormitories were obscured from the officers' view by these
6
obstructions and also by double-bunking the middle row of beds.
7
Defendants point to testimony that an officer stationed in the
8
wicket could not see into parts of the shower even if these
9
obstacles were removed. This does not change the fact that
10
visibility was greatly improved with the removal of these
11
obstructions in one of the dormitories under one of Turner's
12
successors, Superintendant Randall Music. Objection overruled.
13
¶63. Although the officers were supposed to be on
14
constant patrol of the dorms, the Magistrate found that this did
15
not occur. The Magistrate's finding that routine patrol did not
16
in fact take place is supported by the weight of the evidence,
17
particularly the testimony that gang rapes in the showers or beds
18
endured for fifteen to forty minutes. Objection overruled.
19
The Magistrate also found that Turner could recall no
20
action taken against an officer for failure to patrol the
21
dormitories. Turner actually testified that such action may have
22
23
24
25
26
AO72
m·v 8/821

22

been taken but that he could not recall a specific instance.4
1
Objection overruled.
2
164. Defendants take issue with the Magistrate's finding
3
that GCI's chief investigator, Lieutenant Peters, testified that
4
GCI had no standard operating procedure for investigating rapes
5
(Peters, DE 162, at 444). Peters later testified to a procedure
6
he had used to investigate a rape (jx3. at 464-65). From this
7
testimony defendants allege that the Magistrate misrepresented
8 9 the evidence. The court disagrees. Peters stated that no formal
procedure in fact existed and later recounted his own methodology.
10
Peters testified, as defendants note, that no procedure existed
11
for line officers to report rapes directly to him, the prison
12
investigator, but that line officers were supposed to pass on the
13
information to their superiors. The individual plaintiffs'
14

15

16 17 18 19 20 21 22 23 24 I 25 26

Turner, DE

½ r . Lipman: During your tenure, Mr. Turner, were any officers ever suspended or disciplined for failure to walk the areas of the dormitory outside of their wicket during their duty hours?
Mr. Turner: I'm less sure of that one, Mr. Lipman. There probably could have been some disciplinary action taken concerning officers not properly performing those types of duties.
There certainly could -have been, .yes, sir.
Mr. Lipman: Can you recite one specific instance where that occurred, sir?
Mr. Turner: No, sir, I cannot.
164 at 732-22.

AO72

23
stories, which the Magistrate found credible, demonstrate that 1
the passing of rape reports to superior officers did not produce 2
competent or thorough investigations of those reports. Objection 3
overruled. 4
¶65. DOC Inspector General Brierton testified that, in a 5
prison rape investigation, at a minimum, "(1) medical evidence 6
should be secured, (2) a full victim statement should be taken, 7
and (3) the matter should be referred to a local prosecutor. 8
These steps were not followed at GCI with respect to the 9
individual plaintiffs. Defendants question whether the 10
individual plaintiffs were actually raped and, if they were, 11
whether the rapes were reported. Again, the Magistrate found 12
credible plaintiffs' accounts of their rapes and the ensuing 13
events. The district court sees no reason to doubt this finding, 14
and the objection is overruled. 15
¶66. Both Turner and Peters specifically testified to 16
only one prosecution for a rape at GCI. Peters remembered that 17
it occurred in 1984. Although it is true that internal GCI 18
statistical reports note five sexual assaults from 1980-84 (pltf. 19
ex. 3 1 ) , no incident reports regarding these attacks were 20
introduced. The Magistrate's finding is so modified. 21
¶7l. The Magistrate found that various factors, 22
considered in combination, should have made it apparent to a 23
prudent administrator that rapes were occurring, and that, 24
considering this knowledge, the failure to promulgate and adhere 25
26
AO72

24
to the most rudimentary investigative and preventative procedures
1
constitutes a deliberate indifference toward inmate security.
2
The objection is overruled for the reasons stated in infra ¶¶72
3
and 73 and elsewhere in this memorandum and order.
4
¶72. The Magistrate found that the background of
5
contraband, violence, and other illegal activity at GCI was
6
compatible with the existence of violent sexual assaults.
7
Defendants' objection that contraband was not free-flowing is
8
overruled for reasons stated previously. Defendants' further
9
objection that there is no connection between contraband and rape
10
is belied by the plaintiffs' testimony evidencing the presence of
11
weapons, drugs, and alcohol when they were raped. Objection
12
overruled.
13
¶73. The Magistrate found that the disproportionate
14
numbers of White inmates who received protective confinement
15
should have put Turner on notice that these inmates felt in
16
danger in the population. As defendants note, inmates may
17
request protective confinement for reasons unrelated to fears for
18
their safety. The district court makes two observations. First,
19
if protective confinement houses twenty Whites to one Black in a
20
population where Blacks outnumber Whites (pltf. ex. 6 ) , a prudent
21
administrator should at least have inquired why this was the case.
22
Second, the evidence as a whole supports the inference - that
23
Whites who requested protective confinement did so out of fear of
24
25
26
AO72

25
sexual or other assault. Again, a prudent administrator would
1
have investigated. Objection overruled.
2
¶75. Defendants criticize the Magistrate's finding that
3
conditions in protective confinement were "punitive" because
4
certain physical problems such as lighting, ventilation, and
5
overcrowding were out of Turner's fiscal control. Those
6
conditions, however, comprised only part of the reason that
7
protective confinement was punitive. For example, the cells were
8
infested with waste and vermin, inmates were harassed by inmates
9
in nearby disciplinary confinement and the compound, no exercise
10
was afforded, only three brief showers a week were allowed, and
11
canteen and often library privileges were lost. Objection
12
overruled.
13
¶76. The fact that some inmates elected to remain in
14
protective confinement for months was found to be evidence that
15
those inmates experienced high anxiety in the compound.
16
Overcrowded conditions in confinement supports an inference of a
17
high inmate demand for protection. Defendants state only that
18
other reasons could have contributed to the overcrowding, such as
19
increase in inmate population, the nationwide rise in number of
20
inmates in protective confinement, and inclusion of disciplinary
21
and administrative confinement detainees. The Magistrate's
22
finding is modified accordingly.
23
24
25
26
AO72

¶77. An experience repeated over and over in the 1
testimony is the "wolfing"5 and cat-calling by Black inmates 2

to White inmates upon the arrival of the latter group at GCI. 3

Contrary to defendants' assertion, the Magistrate found only that 4

Swanson testified that the corroboration of this experience by 5

inmates unknown to each other and presently incarcerated in 6

different institutions enhances the probability of its occurrence, 7

Objection overruled. 8

9

1178. The Magistrate found other indicia of sexual

activity at GCI such as sheets hung from bunk beds, inmates 10

moaning in their beds, and the showing of pornographic movies in 11

a trailer where cries and moans were heard. Defendants object 12

that reasons other than sexual activity existed for these 13

occurrences and that there was no evidence that Turner knew of 14

these phenomena. Such reasoning does not comport with the 15

totality of the evidence including the inmate testimony that 16

cries, moans, and screams were frequently heard emanating from 17

the showers and from bunks concealed by sheets. 18

Further, defendants' protest that "a superintendent with 19

all of his other responsibilities cannot screen each movie shown 20

in prison" is almost disingenuous. Üncontradicted evidence 21

shows that sexually-explicit videotapes - with graphic depictions 22

of intercourse - were regularly shown in a trailer on the 23

24
25 5"Wolf" is a slang term for a violent, coercive homosexual or for a particularly assaultive inmate.
26

AO72 8/82)

íl
compound, that these movies were unsupervised, and that sounds
1
consistent with human sexual activity could be heard from the
2
trailer. Several witnesses provided more lurid accounts of the
3
scene inside the trailer itsel£. Plaintiffs' expert witnesses
4
rendered their opinion that such films are inappropriate for a
5
prison audience. Defense witness Brierton acknowledged that a
6
different school of thought exists which holds that adult movies
7
may be appropriate for adult prison audiences. Brierton,
8
however, was adamant that group events such as movies should
9
always be supervised.
10
Defendants also point to the lack of evidence that Turner
11
saw the hanging sheets, heard the cries, moans, and screams
12
suggestive of sexual activity, or saw or selected the videotapes.
13
A prudent administrator, however, should have been aware of these
14
occurrences,^ which the evidence shows to have been a
15
prevalent and unmistakeable part of life at GCI. Objection
16
overruled.
17
¶79. The Magistrate found that some rapes were reported
18
and that this should have signalled a problem to a prudent
19
administrator. There is no reason to question the finding that
20
rapes were reported to GCI officers. That these reports never
21
22
23
^A former superintendent, Brierton testified that, although he did
24 not personally select the movies, he discovered that
inappropriate films were being shown when he stopped by the
25 prison one night to see what the movie was (Brierton, DE 185, at
103).
26
AO72

28
made their way to Turner or to the prison investigator,
1
considering the totality of the evidence, shows not Turner's
2
exculpatory ignorance but rather his liability. Objection
3
overruled.
4
¶8l. Objection overruled for the reasons stated in supra
5
¶64.
6
¶82. The record contains no evidence that the rapes,
7 8 which the Magistrate found to have occurred, were even minimally 9 investigated. Defendants' objection is overruled for the reasons
set forth in supra ¶¶64 and 79.
10
¶83. The objection regarding rape prosecutions is
11
overruled for the reasons stated in supra ¶66. The objection
12
regarding weapons prosecutions is sustained as follows: the last
13
sentence of the Magistrate's finding is deleted and replaced with
14
the following: "There.was no evidence that during Turner's
15
administration a State prosecution was initiated for any weapons
16
possessed by any inmate at GCI (Peters)."
17
¶84. The Magistrate found that during Turner's
18
administration inmates bent on violence "roamed the compound with
19
impunity." This finding is supported by the evidence that during
20
Turner's reign inmates were free to wander the compound and
21
dormitories other than the one to which they were assigned. The
22
procedure whereby inmates need passes to move about the compound
23
was instituted by a successor superintendent, Randall M J S Ì C
24
(Music, DE 160, at 146). Objection overruled.
25
26
AO72

29
The Magistrate further found that Turner refused to seek
1
assistance front federal and state prosecutors and investigators
2
to cope with the crimes committed on the compound. The record,
3
however, contains some evidence of outside prosecutions initiated
4
by Turner. The evidence does fairly show that outside state and
5
federal criminal justice remedies were grossly underutilized
6
during Turner's administration considering the crime-ridden
7 8 atmosphere at GCI. The Magistrate's finding is modified 9 accordingly.
¶86. The Magistrate found that the rapes of plaintiffs
10
Aldred, Saunders, and Harper were reported to prison authorities,
11
and the record contains no articulable reason for the district
12
court to disregard this credibility determination. This finding
13
supports an inference that the rapes were never investigated at
14
least partially due to the lack of an established procedure for
15
reporting rapes to the prison investigator. Objection overruled.
16
¶87. The Magistrate found that Turner also failed to
17
avail himself of or underutilized other possible investigative
18
arms of the government such as the State Attorney General's
19
Office, State Attorney's Office, and the Federal Bureau of
20
Investigation. Whether or not these agencies could have assisted
21
in improving the conditions at GCI, the record does not show that
22
Turner requested assistance from other agencies, on a consistent
23
or persistent basis, in order to alleviate GCI's problems.
24
Defendants also note that there was no evidence that GCI's
25
26
AO72
-r·_ O<O·M

30
internal inspectors were unwilling or unable to investigate 1
matters brought to their attention. These assertions ring hollow 2
considering that, because of inadequate reporting procedures, 3
many grave matters were never brought to their attention. 4
Objection overruled. 5
¶89. The district court does not doubt the evidence cited 6
by defendants that sometimes inmates were disciplined for being 7
in an area in which they were not authorized to be. This proof, 8
however, does little to mitigate the testimony which shows that 9
inmate movement about the prison was inadequately controlled. 10
See, e.g., supra 1184. Objection overruled. 11
1192. The objections are overruled for reasons previously 12
addressed. 13
¶93. The Magistrate found that, even though parts of the 14
dormitories were concealed from the view of an officer stationed 15
in the wicket, "Turner never initiated any administrative policy 16
that officers patrol the dormitory on a regular basis" (DE 128, 17
at 45). As defendants note, Turner did testify that posted 18
orders required officers to patrol (Turner, DE 164, at 643). The 19
weight of the evidence, notwithstanding, shows that the guards 20
did not regularly patrol. The Magistrate's finding is so 21
modified. 22
¶94. Succeeding superintendent Music was able to increase 23
visibility by single-bunking the middle rev of beds in one of the 24
dormitories. Defendants argue that this modification was not 25
26
AO72
ID.. D'P*>\

31

cost-free, because $7,000 was expended for new lockers (Music, DE
1
160, at 141-42). The district court is unable to determine from
2

the record whether new lockers were an essential element of the
3

single-bunking or simply an added security measure for inmate
4

5 property. Even if the $7,000 was a necessary expenditure, there

6 is no significant evidence that Turner possessed or tried to

7 obtain funds for that purpose. Objection overruled.

8

¶96-97. The Magistrate compared Turner's practice in

9 managing the transfer out of GCI of problem inmates with that of

successors Jones and Music. "Problem inmates" includes both
10

aggressive inmate "wolves" and especially vulnerable inmates.
11

There was evidence that Turner often achieved the difficult goal
12

of transferring problem inmates out of GCI. Successor
13

superintendent Jones transferred out forty to forty-five inmates
14

in less than three months. Music transferred five a month over a
15

six-month period. Defendants point to instances where Turner
16

moved seven inmates on one occasion and twelve on another,
17

although his monthly average of such transfers is not in evidence.
18

There is other compelling proof, however, that Turner was not
19

zealous enough in transferring problem inmates: for example,
20

Peters' admission, found credible by the Magistrate, that Turner
21

did not view "wolves" as problem inmates; the chronicles
22

23 concerning "wolves" Larry Pryor, Willie Dock, and Levi Fisher (DE

128, at 42-44); and the length of tin¯.e the vulnerable plaintiffs 24

were effectively forced to endure protective confinement before 25

26

AO72

32
transfers took place. In the district court's view, the record
1
shows that Turner could have exercised much more diligence in
2
attempting to transfer problem inmates from GCI and that this
3
failure constitutes evidence of deliberate or callous
4
indifference to inmate safety. Objections overruled.
5
¶¶98-lOO. Defendants challenge the Magistrate's findings
6
regarding inmate-wolves Pryor, Dock, and Fisher with minor
7
discrepancies in the evidence. The Magistrate's findings are
8
ultimately grounded in credibility determinations which the
9
district court sees no reason to disturb. Objection overruled.
10
¶IOI. The objections are overruled for the reasons set
11
forth at length in supra \78.
12
11103. The Magistrate's analysis of the relationship
13
between financial feasibility and the constitutional obligations
14
of a prison superintendent comports with the prevailing law in
15
the Eleventh Circuit (see infra at 38-39). Objection overruled.
16
¶IO5. The Magistrate detailed specific measures which
17
were inexpensive or cost-free, which were ignored or rejected by
18
Turner, which were within his control, and which would have
19
minimized or eliminated the likelihood of rapes and other
20
assaults at GCI.
21
(i) Defendants claim that there was no evidence that
22
Turner failed to discipline staff for failure to patrol the
23
dorms, that staff in fact failed to patrol, or that Turner was
24
made aware of any such failure. To the contrary, the district
25
26
AO72
ID... O<OO\

33
court can discern no significant evidence that the staff did
1
patrol the dorms or that Turner disciplined staff for not
2
patrolling. Further, there is no evidence explaining why Turner
3
was not aware of this failure. Objection overruled.
4
(ii) The record reflects extensive contraband at GCI
5
which was often provided or at least tolerated by Turner's staff,
6
prevalent extortion activities by inmates which were not
7
redressed by officers who were made aware of it, several
8
instances of extortion activities by staff, and the tolerance of
9
obvious consensual and nonconsensual sexual activity by inmates.
10
Each of these matters is addressed elsewhere in this memorandum
11
and order and in the report and recommendation. Turner's overall
12
laxity in managing and controlling his staff can be inferred from
13
the prevalence and apparent obviousness of these conditions and
14
from the absence of substantial evidence of disciplinary action
15
directed to staff. Objection overruled.
16
(iii) The weight of the evidence supports the finding
17
that during the Turner administration it was common practice for
18
inmates to hang sheets and other objects from their bunks,
19
thereby obstructing visibility in the dormitories. The inference
20
is inescapable that a prudent administrator would have been aware
21
of this problem. Objection overruled.
22
¯ (iv) The district court has previously addressed the lack
23
of adequate procedures for the reporting and investigation of
24
rapes (supra ¾1[64-66) . Objection overruled.
25
26
AO72
IP»V R/R?l

34
(v) Defendants' arguments have been rejected elsewhere
1
(supra 1137, 6 6 ) , and the objections are overruled.
2
(vi) These assertions also have been rejected previously
3
(supra 184). The objection is overruled.
4
(vii) The court has already addressed Turner's lack of
5
zeal at transferring problem inmates (supra ¶¶96-lOO). Objection
6
overruled.
7
1108. Swanson utilized various methodologies to evaluate
8
plaintiffs' accounts of their rapes. Defendants' objection
9
appears to be a semantical one and is overruled.
10
¾IO9. The Magistrate found the expert opinion testimony
11
of Dr. Caddy to be credible, and the district court does not
12
question this finding. Objection overruled.
13
1111. The Magistrate's credibility finding will not be
14
overturned. Objection overruled.
15
1118. The Magistrate's essential finding that the
16
atmosphere of undeterred violence at GCI was conducive to acts of
17
rape is supported by the weight of the evidence. Objection
18
overruled.
19
¶I2I. The record does not support defendants' assertion
20
that rectal examinations were actually used at GCI upon the
21
reporting of a rape. Objection overruled.
22
¶¾I22-I95. The gravamen of defendants' objections turn on
23
credibility deterrr.inations which the district court finds no
24
reason to disturb. The objections are overruled.
25
26
AO72 (Rev.8/82)

35
¶¶196-199. The district court finds persuasive and
1
supported by the evidence the Magistrate's observations on the
2
overall integrity of plaintiffs' case. Objection overruled.
3
VII.
4
OBJECTIONS TO CONCLUSIONS OF LAW
5
Defendants' objections to the Magistrate's conclusions of
6
law reflect a general agreement with the prevailing legal
7 8 standards but dispute the application of the facts to those 9 standards. In particular, defendants argue with the Magistrate's
conclusion that plaintiffs have put forth sufficient proof of
10
violation of their civil rights.
11
As the Magistrate concluded, the following legal standards
12
apply. A prisoner has a right to be protected from the constant
13
threat of violence and from sexual assault. When prison
14
officials have failed to control or segregate prisoners who
15
endanger the physical safety of other prisoners, resulting in a
16
high level of violence, it constitutes cruel and unusual
17
punishment. Jones v. Diamond, 636 F.2d 1364, 1373-74 (5th Cir.)
18
(en bane), cert, dismissed, 461 U.S. 432 (1981); see also
19
Robinson v. California, 370 U.S. 660 (1962)(eighth amendment ban
20
on cruel and unusual punishment made applicable to states by
21
fourteenth amendment due process clause).
22
To hold a prison official liable in a civil rights action
23
under 42 U.S.C. § 1983 (1982) based on cruel and unusual
24
punishment, plaintiffs must show that the official's conduct
25
26
AO72
iD.u ft/821

36
constitutes an intentional or callous indifference to the 1
prisoner's right to reasonable protection from violence. 2
Williams v. Bennett, 689 F.2d 1370, 1380-81 (11th Cir. 1982), 3
cert, denied, 464 U.S. 932 (1983). Plaintiffs must prove 4
deliberate indifference on the part of the defendant official 5
rather than simple negligence. Section 1983 further requires 6
"proof of an affirmative causal connection between the actions 7
taken by a particular person 'under color of state law1 and the 8
constitutional deprivation." Id_. at 1380. Where the defendants 9
hold supervisory positions, vicarious liability will not suffice. 10
See Nonell v. Department of Social Services, 436 U.S. 658 11
(1978)(municipality not vicariously liable for acts of employees 12
absent proof that execution of official policy inflicts injury). 13
Supervisory defendants may be held liable if they have direct 14
responsibility for the actions of the employees who engage in 15
misconduct. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). The 16
Eleventh Circuit has stated that "the inquiry into causation must 17
be a directed one, focusing on the duties and responsibilities of 18
each of the individual defendants whose acts or omissions are 19
alleged to have resulted in a constitutional deprivation." 20
Williams, 689 F.2d at 1381. 21
The district court first examines whether Turner's conduct 22
rose to a level of intentional or callous indifference to the 23
plaint ifrs' right to "reasonable protection from violence." Ld. 24
at 1380. The former Fifth Circuit elaborated on the elements of 25
26
AO72 (R#v 8/821

1 this requirement of intent in Gullatte v. Potts, 654 F.2d 1007f
1012 (5th Cir. 1981). A section 1983 plaintiff seeking to sue
2
prison officials must prove either that "the official knew or
3
should have known that his action infringed a clearly established
4
constitutional right of the plaintiff," Douthit v. Jones, 619
5
F.2d 527, 534 (5th Cir. 1980), regardless of the officials'
6 7 subjective intent, Bogard v. Cook, 586 F.2d 399, 411 (5th Cir. 8 1978), cert, denied, 444 U.S. 883 (1979), or that the "official 9 either actually intended to do harm to the plaintiff, or took an
action which, although not intended to do harm, was so likely to
10
produce injury that the harm can be characterized as
11
substantially certain to result," iå^. at 412.
12
The Magistrate found that Turner knew or should have known
13
that his acts or omissions infringed plaintiffs' constitutional
14
right to reasonable safety. Evidence that Turner knew of serious
15
security problems included official documents such as Turner's
16
letters to Wainwright, the 1980 grand jury presentment, the
17
management reports of the DOC inspector general, the Barrett and
18
Dixon incidents of staff corruption, and knowledge from various
19
sources of the prevalence of contraband. The Magistrate further
20
found that a prudent administrator should have known of
21
widespread extortion activities by inmates often in collusion
22
with officers and widespread rape and physical assaults by
23 in:nates on inmates (see supra ¶¶77-78). The extensive findings
24
of fact cited by the Magistrate provide adequate support for his
25
26
AO72 (Rev.8/82)

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
2- ¡:

conclusion that Turner's conduct constituted callous indifference to plaintiffs' right to reasonable protection from violence. Thus, plaintiffs have satisfied the objective test of Bogard, that Turner knew or should have known that his actions violated a clearly defined constitutional right, as well as Bogard's subjective test, that Turner took an action which was so likely to produce injury that the harm can be characterized as substantially certain to result.
A defendant cannot have the requisite intent for callous indifference if full compliance with constitutional norms is beyond his control and if he can show that he accomplished what could be accomplished within the limits of his authority. Williams, 689 F.2d at 1388. Over defendants' persistent protest that Turner's means were limited, the Magistrate identified administrative measures within Turner's control which imposed little or no financial limitation. These include measures Turner could have taken to identify and remedy his staff's failings at weapons training, the reporting of rapes, àsäatri<s, and other illegal activities through the chain of command, patrolling of the dormitories, and ensuring maximum visibility in the dormitories. Turner also could have implemented a standard operating procedure for investigation of rapes and assaults, availed himself of outside agencies in that regard, established inmate movement controls, and intensified his efforts to transfer

particularly aggressive or vulnerable inmates from GCI. The fact
25 ¡

26 i

AO72 (Rev.8/82)

39

that succeeding superintendents Jones and Music were able to 1
achieve or at least take preliminary steps toward these goals 2
attests to their feasibility. Thus, the district court is 3
convinced that the means to satisfy constitutional minimums were 4
within Turner's control. Accordingly, the court overrules the 5
objection to the Magistrate's conclusion that plaintiffs failed 6
to prove callous indifference.~1 7
Defendants more strenuously object to the Magistrate's 8
conclusion that Turner's actions constituted a legal cause of 9
plaintiffs' constitutional deprivation. The critical causation 10
inquiry is whether Turner "was in a position to take steps that 11
could have averted" the attacks on plaintiffs "but, through 12
callous indifference, failed to do so. Resolution of this issue 13
necessarily entails a very individualized approach, taking into 14
account the duties, discretion, and means" of the defendant. Id. 15
at 1384. Defendants essentially maintain that the Magistrate 16
painted with such broad strokes that he failed to analyze whether 17
the conditions at GCI which were under Turner's control 18

19

20

21 22 23 24 ¡ 25 26

Magistrate alternatively found section 1983 liability based on Turner's breach of a duty imposed by state law which caused plaintiffs' constitutional injury. See-Williams, 689 F.2d at 1381. The parties agree, however, that Turner could not have breached a duty imposed by Fla. Stat. Ann. § 20.315(1) (c) (West 1987 Supp.), the statute relied on by the Magistrate, because that statute on its face applies only to the DOC and not to individual superintendents. The objection is sustained, and Magistrate's conclusion in this regard (DE 128, at 111-13) is rejected.

AO72

40
proxiroately caused the injuries to the particular plaintif£s at 1
the particular times of each occurrence. 2
The district court is not persuaded. The following 3
conditions which were under Turner's control provide direct 4
causal links to plaintiffs' injuries. First, every plaintiff was 5
attacked or threatened with a weapon, typically a knife. The 6
evidence establishes the prevalence of such weapons and Turner's 7
failure to take reasonable measures designed to control such 8
contraband. Second, the long duration of several of the attacks, 9
the places in which they occurred, and possibly the fact that 10
they occurred in the first place, are functions of Turner's 11
failure to take even minimal steps to ensure that GCI was 12
adequately patrolled (Aldred raped in shower for fifteen to 13
twenty minutes; Durrance led away at knifepoint from place 14
between bunks which was concealed by hanging blanket; Bronson 15
raped with baseball bat on recreation field in broad daylight; 16
Saunders raped in bathroom for twenty-five to thirty minutes; 17
Harper raped in top bunk; Cobb stabbed in front of canteen in 18
fight lasting ten to twelve minutes). Third, Turner's failure to 19
implement adequate reporting procedures for rapes and assaults 20
was a legal cause of plaintiffs' psychological and possibly 21
physical damage (Aldred reported rape to several officers with no 22
results; Aldred not given protective confinement; Durrance and 23
Bronson did not report out of fear of consequences; Saunders 24
raped by two inmates who previously had attacked him; Saunders 25
26
AO72

41
reported rape and received inadequate treatment and no
1
investigation; inmates identified as assailants by LaMarca were
2
not confined for investigation and continued to assault him;
3
classification officer told Johnson to take protective
4
confinement or to get a weapon and fight back). Fourth, Turner's
5
callous indifference to the obvious and rampant indicia of
6
homosexual activity was the proximate cause of rapes, attacks, or
7
repeated harassment (Aldred, Durrance, Bronson, Saunders, and
8
Harper raped; Bronson forced to commit nonconsensual sexual act
9
in movie trailer; Johnson sexually harassed and later attacked
10
four times; constant threats and sexual solicitation caused
11
LaMarca to escape, take protective confinement, and receive
12
disciplinary reports; Cobb injured in fight over homosexual).
13
Fifth, Turner's failure adequately to supervise correctional
14
officers up to the lieutenant level resulted in corruption and
15
incompetence among the officers and a lack of reasonable
16
protection of inmates (Cobb's assailant worked as an "enforcer"
17
with GCI staff and was protected by them; LaMarca complained to
18
Barrett about threats and assaults and was given a knife by
19
Barrett; Bronson afraid to report rape because he had witnessed
20
inmates exchanging money and drugs with guards). The
21
Magistrate's findings, supported by the record, contain more
22
examples of how Turner's callous indifference proximately caused
23
the injuries to Aldred, Durrance, Bronson, Saunders, Harper,
24
Johnson, Cobb, and LaMarca.
25
26
AO72

42
The district court is not satisfied, however, that the 1
requisite causal connection has been established with respect to 2
the claims of Epprecht and Gordon. When Epprecht was assaulted 3
with a pipe in the dormitory, he could see no guard in the wicket. 4
Because there is no other evidence regarding the attack, such as 5
its length, the district court is unable to determine whether the 6
lapse in supervision was merely accidental or whether it flowed 7
from Turner's actions. The fact that the attack was provoked 8
because Epprecht possessed cash money also does not establish 9
causation because a cash money system in prison does not in 10
itself prove callous indifference. Similarly, with respect to 11
Gordon, the evidence shows only that he was assaulted three times 12
at GCI. He was knocked unconscious once in front of the canteen, 13
his buttocks were burned when inmates who had been drinking 14
prison-made wine set his polyester underwear on fire, and he was 15
hit in the head with a pipe in a robbery. The eighth amendment 16
entitles a prisoner only to reasonable protection from violence. 17
Williams, 689 F.2d at 1380. The district court fears that, were 18
it to find Turner liable for the damage sustained by Epprecht and 19
Gordon, Turner might become an insurer for every attack on an 20
inmate which occurred during his tenure. The recommended $17,000 21
award of compensatory damages to Epprecht and the $6,000 to 22
Gordon must therefore be rejected. 23
In summary, the facts and the law support the Magistrate's 24
conclusions that certain of defendant Turner's actions and 25
26
AO72

43
inactions in running GCI constituted callous indifference to 1
plaintiffs' eighth amendment right to reasonable protection from 2
violence. The evidence further establishes that, with respect to 3
all of the plaintiffs except Epprecht and Gordon, Turner was in a 4
position to take steps that could have averted the attacks on 5
these plaintiffs but, through his callous indifference, failed to 6
do so. The record finally establishes that these constitutional 7
deprivations were a legal cause of plaintiffs' damages. Under 8
the prevailing law in this circuit, see id. at 1381, plaintiffs 9
Aldred, Durrance, Bronson, Saunders, Harper, Johnson, Cobb, and 10
LaMarca should prevail against defendant Turner under 42 U.S.C. 11
§ 1983. 12
VIII. 13
OBJECTIONS TO INJUNCTIVE RELIEF 14
The Magistrate found that, although defendants had 15
instituted improvements of unconstitutional conditions at GCI, 16
there was a reasonable expectation that the violations would 17
recur. Accordingly, the Magistrate held that defendants1 efforts 18
at correcting deficiencies at GCI did not deprive the court of 19
the power to order injunctive relief. See County of Los Angeles 20
v. Davis, 440 U.S. 625, 631 (1979). He recommended the creation 21
of two committees, one of penologists and the other of 22
psychologists or psychiatrists, to advise the court in the 23
formulation of specific injunctive relief. The charter of the 24 !¡
committee of penologists is to ferret out other rape victims at 25
26
AO72

44
GCI who were not identified through this litigation so that they 1
might be provided with therapeutic assistance and to review and 2
develop procedures at GCI to minimize future assaults, 3
extortions, and rapes. The charter of the committee of 4
psychologists or psychiatrists is to prescribe a treatment plan 5
for the plaintiffs and witnesses in this action who remain 6
incarcerated and to develop procedures at GCI to provide rape 7
victims with support similar to that received by unincarcerated 8
rape victims from rape crisis centers. 9
Defendants argue that the establishment of the committees 10
was premature because the Magistrate adjourned the class action 11
aspect of the case before defendants had an opportunity to 12
present evidence countering plaintiffs' claims regarding current 13
conditions at GCI. Although it is true that the parties 14
presented incomplete proof on the issue of injunctive relief, the 15
district court is not persuaded that at this juncture further 16
evidentiary hearings are appropriate. In particular, the 17
district court recognizes its lack of expertise in resolving the 18
"complex and intractable" problems of prison administration. 19
Procunier v. Martinez, 416 U.S. 396, 404-05 (1974). The 20
committees recommended by the Magistrate would provide valuable 21
expert testimony to the court on the persistence of 22
unconstitutional conditions at GCI and recommended equitable 23
remedies. 24
25
26
AO72

45
The injunctive relief recommended by the Magistrate is
1
adopted with the following modifications. Two committees shall
2
be established, one of penologists and the other of psychologists
3
and psychiatrists. Each committee will be comprised of three
4
members. Each party will nominate one member of each committee.
5 6 The third member of each committee will chair the committee and 7 will be selected by the district court. The parties will submit 8 names of persons they recommend for the position of chairman, 9 including a curriculum vitae for each nominee, and the district
court will consider these recommendations in appointing the third
10
member of each committee. The charter of the committees will be
11
that recommended by the Magistrate, with the additional task of
12
reporting to the court on the status of current conditions at GCI
13
and the necessity for further injunctive relief. The work of the
14
committees will not end with this original report, as their
15
expertise may be needed from time to time to assist in monitoring
16
conditions at GCI. The cost of establishing and maintaining the
17
committees shall be borne by the State of Florida.
18
The parties shall file their nominations of committee
19
members with the district court by June 17, 1987. Thereafter,
20
the district court will issue an order setting forth its
21
selection of the chairman of each committee and establishing a
22
date by which the committees shall file a written report with the
23
court ir¡ accordance with the terms of this order. After "he
24
committees have filed their reports, the parties will have ten
25
26
AO72

46

days in which to file a motion if they desire to present
1

additional evidence regarding current conditions at GCI and the
2

necessity of further injunctive relief. Such motions shall be
3

accompanied by an offer of proof which shall include a list of
4

witnesses and the substance of their proferred testimony. The
5

parties will have five days to respond to each other's motions.
6

After it has the reports of the committees and these submissions
7

8 of the parties, the court will determine whether additional

9 hearings are necessary to formulate specific injunctive relief.

IX.
10

CONCLUSION
11

In accordance with the terms of this memorandum and order,
12

it is
13

ORDERED and ADJUDGED that the report and recommendation of
14

the Magistrate filed January 8, 1986 (DE 128) is affirmed and
15

adopted as the order of this court except as modified or rejected
16

by this order. It is further
17

ORDERED and ADJUDGED that judgment shall be entered for
18

plaintiffs LaMarca, Saunders, Johnson, Aldred, Bronson, Cobb,
19

Durrance, and Harper and against defendant Turner in accordance
20

with the following award of compensatory damages for Turner's
21

violation of plaintiffs' constitutional rights:
22

Anthony LaMarca
23

$9,000

Martin Saunders
24

$30,000

Edwin Johnson
25

$13,000

26

AO72
ID.,. <VA?l

47

1

David Aldred

$30,000

2

Steve H. Bronson, Jr.

$30,000

3

Eddie Cobb

$6,500

4

Ron Durrance

$30,000

5

Billy Joe Harper

$30,000

6 Interest on this judgment shall run from the date of judgment

7 until paid, at the rate of 7.02 percent. It is further

8

ORDERED and ADJUDGED that on the claims of plaintiffs

9 Epprecht and Gordon judgment shall be entered for defendants and

10 against plaintiffs, the plaintiffs to take nothing. It is

11 further

12

ORDERED and ADJUDGED that two committees shall be

13 established to advise the court in the formulation of injunctive 14 relief, in accordance with the court's specific directives set 15 out at pages 45-46 of this memorandum and order. It is further

16

ORDERED and ADJUDGED that defendants' motion filed

17 February 10, 1986 for an enlargement of time to respond to

18 plaintiffs' motion for attorneys' fees and expenses (DE 149) is 19 granted as follows: Defendants shall have twenty days from the

20 date of this order to file their response. It is further

21

ORDERED and ADJUDGED that the court will defer ruling on

22 plaintiffs' motion filed January 31, 1986 for oral argument on

23 their motion for fees and expenses (DE 141).

24 i¡

25

26 ¦¦

AO72
<q»v R'8?>

48

1

DONE and ORDERED in chambers at West Palm Beach, Florida

2 this $é day of June, 1987.

3

4

5 6
counsel of record:

James C. Paine Uíríted States District Judge

7
David M. Lipman and Robett E. Weisberg, of Lipman &
8 Weisberg, Miami, Florida, and William Amlong of Hall & Amlong,
Fort Lauderdale, Florida, for plaintiffs.

9
Walter M. Meginniss, Assistant Attorney General,

10

Tallahassee, Florida, and Michael B. Davis, of Davis, Critton, Hoy & Diamond, West Palm Beach, Florida, for defendants.

11

12

13

Kl>

14

15

16

17

18

19

20

21

22

23

24

25

26

AO72 (R«v.8/82)

2
3 ANTHONY LA MARCA, MARTIN SAUNDERS, and EDWIN JOHNSON,
4 individually and on behalf of all others similarly
5 situated, and DAVID ALDRED, STEVE H. BRONSON, JR., EDDIE
6 COBB, RON DURRANCE, WAYNE EPPRECHT, MICHEAL
7 GORDON, and BILLY JOE HARPER, individually,
8

UNITED STATES DISTRICT COURT
{ SOUTHERN DISTRICT OF FLORIDA
I CASINO. 82-8196-CIV-PAINE

FlLtD Dy,

O.C.

S£P 2 1 «87
ROSC«TM MA«CH CtCRK. U5 O * T Ï e.Q OF FIA.

Plaintiffs, 9

vs . 10

ORDER

R.V.TURNER, individually in his 11 former official capacity
as Superintendent of Glades 12 Correctional Institution,
CHESTER LAMBDIN, in his official 1 capacity as Superintendent of
Glades Correctional Institution, 14 and the STATE OF FLORIDA,

15

Defendants.

16

17

This cause came to be heard on Defendants' Motion for a New

18 Trial and to Amend Findings (DE201), filed June 15, 1987; Defendants

19 Supplemental Motion (DE2O8), filed June 24, 1987; and Plaintiffs'

20 Response (DE215), filed June 7, 1987. Four points were raised:

21 l)failure to grant continuance; 2)appropriateness of injunctive

22 relief; 3)exclusion of depositions; and 4)recusal of the Magistrate.

23 Each will be addressed in sequence.

24

First, Defendants' request for a continuance was addressed

5 in this Court's order dated June 4, 1987. (see page 9) The prior

26 decision on this issue will not be distrubed.

•2 8/82)

Second, the equitable relief provided by this Court does not

2 .gnore Defendants1 position. Breadth and flexibility are inherent

3 .n equitable redress of past wrongs. Dowdell v. City of Apopka,

4 98 F.2d 1181, 1186 (11th Cír. 1983). Defendants shall be afforded

5 :heir day in court after the submission of the committees' reports.

6

Upon reconsideration, this Court vacates the portion of its

7 )revious order making the State of Florida responsible for the cost

8 )f the committees (see June 4, 1987 Order, page 45). The proper

9 >arty to bear this cost is the current Superintendent, Chester

10 .,ambdin, in his official capacity as Superintendent of Glades

11 :orrectional Institution.

12

Third, on balance, the additional testimony is of little

i ìssistance given the entire record in evidence and the strength of

14 ;he plaintiffs' case. The objection to the exclusion of the

15 ìeposition testimony of witnesses is overruled.

16

Fourth, Defendants are unable to support a claim for recusal

17 )f Magistrate Nimkoff. The standard is whether he is "capable 18 :>f judging a particular controversy fairly on the basis of its

19

circumstances." Horton Joint School District No. 1 v. Hortonville

20 ¦ducation Association, 426 U.S. 493(1976). See Southern Pacific

21 :ommunications v. AT&T, 740 F.2d 980,990 (D.C. 1984). This Court is

22 lot persuaded that Magistrate Nimkoff demonstrated bias in

23 landling this case.

24

Therefore it is

5

ORDERED and ADJUDGED

26

72 .8/82)

1. Defendants' Motion for a New Trial/Amend Findings is DENIEE

2

2. The portion of this Court's June 4, 1987 Order

3 directing the State of Florida to bear the cost of the committees

4 is VACATED.

5

3. The cost of establishing and maintaining the

6 committees shall be borne by the current Superintendent,

7 Chester Lambdin, in his official capacity as Superintendent

8 of Glades Correctional Institution.-

9

DONE and ORDERED in chambers in West Palm Beach, Florida,

10 this li — day of September, 1987.

11 12

0 r P¿Wt

JAJŒS C. PAINE

`3

UNITED STATES DISTRICT JUDGE

14
cc: David M. Lipman

15

William Amlong

Walter M. Meginniss

16

Michael B. Davis

17

18

19

20 21 22 23 24

72 .8'82)

1

UNITED STATES DISTRICT COURT

2

SOUTHERN DISTRICT OF FLORIDA

3

CASE NO.82-8196-CIV-PAINE

4 ANTHONY LaMARCA, MARTIN

SAUNDERS, and EDWIN JOHNSON,

5 individually and on behalf of

all others similarly situated,

6 and DAVID ALDRED, STEVE H. BRONSON, JR.,

EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT,
7 MICHAEL GORDON, and BILLY JOE HARPER,

pc·

individually.
8
Plaintiffs,
9

APR 2 9 1990
ROBERT M. MARCH CL£RKU·&IMST.CT.

vs. 10
R.V. TURNER, individually in his

11

former capacity as Superintendent of Glades

Correctional Institution, CHESTER LAMBDIN, in

12 his official capacity as Superintendent of Glades Correctional Institution,

13 Defendants.

14

15 FINDINGS OF FACT AND CONCLUSIONS OF LAW
16 This matter comes before the court upon an evidentiary
17 hearing held January, 8-12, 1990.
18 The hearing was held as a result of an October 18, 1988
19 order from the Eleventh Circuit Court of Appeals in which the
20 appellate court dismissed without prejudice the appeal of the
21 prior order entered by this court. The appeal was dismissed
22 "for want of a final judgment adjudicating all of the claims
23 against all of the parties in this case." Finally, the
24 appellate court directed this court to complete its work and
25

26

AO72
(Rev.8/82)

enter final judgment regarding the requested injunctive

relief. 1
Accordingly, having reviewed the proposed findings of 2
fact and conclusions of law submitted by each party, the court
3 enters the following order.
4 PROCEDURAL BACKGROUND
5 In light of the fact that the present case has been
6 remanded by the Eleventh Circuit Court of Appeals and that
7 this lawsuit spans almost eight years, the court has
8 determined that a brief review of the procedural background
9 of the case is in order.

10 On March 14, 1982, Anthony Lamarca filed a hand-written,
11 pro se complaint in the United States District Court pursuant
12 to 42 U.S.C.§ 1983. The named defendant was R.V. Turner, the
13 then-Superintendent of Glades Correctional Institution (GCI).
14 The complaint contained, inter alia, allegations that Lamarca

15 was being subjected to ongoing physical violence and

16 harassment by other inmates because of his refusal to

17 participate in homosexual activity.

Additionally, the

18 Plaintiff alleged that GCI officials failed to take any

19 corrective action to alleviate that situation. Pursuant to the

20

Southern District of Florida Local Magistrate Rule l(f), this

21

case was transferred Magistrate Peter L. Nimkoff.

22 On September 21, 1983, Lamarca, now represented by

23 counsel and joined by three other former and/or current prison

24 inmates at GCI, Martin Saunders, Eswin Johnson, and Harry

25

26

AO72 (Rev.8/82)

Rosenbaum, filed an amended class action complaint on behalf
of themselves and other inmates at the institution. The First
1
Amended Complaint purported to redress physical and sexual
2
assaults and threats of physical and sexual assaults. In the
3
first amended complaint, Plaintiffs sought monetary damages
4
as well as declaratory and injunctive relief to enjoin the
5
Defendants from various practices and inaction which
6
perpetuated the violence, threats, and sexual abuse by
7
prisoners at GCI.
8
On November 2, 1983, the Defendants filed their answer
9
to Plaintiff's First Amended Complaint. The Defendants did
10
not demand a jury trial at that time.
11
The injunctive relief aspect of the lawsuit was certified
12
as a class action on April 13, 1984. The court defined the
13
class as all persons who were, or would be, incarcerated at
14
GCI.
15
On September 20, 1985, the court granted the Plaintiffs
16
leave to file a Second Amended Complaint, the effect of which
17
was to include damage claims of additional Plaintiffs.
18
Additionally, regarding the injunctive relief, the Second
19
Amended Complaint named Defendant Turner's successor at GCI,
20
Randall Music, in his official capacity. Thereafter, the
21
Defendants made a demand for jury trial.
22
Finally, on November 15, 1985, Plaintiffs moved for leave
23
to file a third amended complaint, which would substitute
24
certain plaintiffs. The Magistrate granted the Plaintiff's
25
26
AO72 (Rev.8/82)

motion to file a Third Amended Complaint and, in the same
order, denied the Defendant's jury demand as well as a second 1
request for a continuance. 2
Magistrate Nimkoff held an evidentiary hearing in 3
December, 1985. During the pendency of the hearing, the 4
Defendants raised the matter of recusal of the Magistrate. 5
The motion for recusal was denied. On January 8, 1986, the 6
Magistrate entered his Report and Recommendation. Despite the 7
Defendants objections to the Magistrate's Report and 8
Recommendation, this court affirmed same as to most of the 9
issues. That order is reported at Lamarca v. Turner, 662 F. 10
Supp. 647 (1987). 11
The Defendants filed a timely appeal which, as discussed 12
above, was dismissed without prejudice. 13
On October 18, 1989, this court conducted a status 14
conference in the present case. Thereafter, on October 23, 15
1989, the court issued an order setting forth a discovery 16
schedule and scheduling an evidentiary hearing for January, 17
1990. In that order the court noted that "neither party 18
strongly advocated the alternative of appointing committees 19
to evaluate the prison conditions." Therefore, upon agreement 20
of counsel for both sides, the court determined that the idea 21
of implementing committees should be abandoned. In this 22
regard, the court impliedly vacated that part of the June 4, 23
1987 order which contemplated the utilization of committees 24
25
26
AO72 (Rev.8/82)

to recommend injunctive relief.1

PURPOSE AND SCOPE OF THIS ORDER 1
The purpose of this order is to determine what, if any, 2
injunctive relief should be granted in this 42 U.S.C. S 1983 3
class action. 4
At the commencement of the evidentiary hearing, the court 5
granted the Defendants' Motion to substitute Chester Lambdin 6
in his official capacity as Superintendent of GCI. The court 7
denied the Defendants' request to consider additional evidence 8
relating to the "liability" evidence which was presented four 9
years earlier during the December, 1985 proceedings.
10 Finally, the court denied Defendants' motion challenging
11 its jurisdiction to provide psychological and psychiatric
12 relief for abused inmates because of a the possible overlap
13 of these issues raised in the ongoing 18-year-old statewide
14 prison condition lawsuits styled Costello and Celestineo v.
15 Dugger. Case No. 72-094-Civ-J-14; Case No. 72-109-Civ-J-14
16 (Jacksonville Division) (Black J . ) .
17 By denying the Defendants' Motions prior to the hearing,
18 the court limited the scope of the January, 1990 evidentiary
19 hearing in two distinct ways. First, the hearing was to
20

21

1 Regarding the appointment of committees to address the

22

injunctive relief, the court expresses some concern that such an appointment might result in an impermissible delegation of

23

judicial responsibility. However, in the present case, since all of the parties agreed that the appointment of committees

24

would be cumbersome and unduly expensive, the court need not address the legality of such a delegation of judicial

25

authority.

26

AO72 (Rev.8/82)

address only the injunctive relief aspect of the Lamarca case.

In so ruling, the court refused to disturb its prior ruling.
1
Consequently, the June 4, 1987 order, published at Lamarca v.
2
Turner. 662 F. Supp. 647 (1987), is incorporated herein by
3
reference and hereby made a part of this court's imminent
4
final judgment in this case.
5
Second, the court limited the scope of this case so as
6
not to impose upon the pending jurisdiction of the Costello
7
and Celestineo cases. Accordingly, the court does not intend
8
that these findings be interpreted to address issues of
9
overcrowding, food service, nor health care, as those issues
10
are being addressed in the pending Middle District class
11
actions.
12
Finally, before the proceedings began, the Plaintiffs
13
moved the court to consider the claim of Martin Saunders,
14
former party plaintiff.2 Mr. Saunders has allegedly suffered
15
retaliation at the hands of correctional personnel because of
16
his participation in this case. The Defendants objected to the
17
court's entertaining any argument or hearing any evidence on
18
Mr. Saunder's retaliation case. The court sustained the
19
Defendants' objection. It is the opinion of this court that
20
such allegations of retaliation are questions of fact which
21
are outside the scope of this litigation.
22

23
2 Although Mr. Saunders is still a Plaintiff in the

24

liability and damages aspect of the case, he is no longer an

inmate at GCI. Therefore, he is not a member of the class

25

action for the purposes of injunctive relief.

26

AO72 (Rev.8/82)

FINDINGS OF FACT
1
1. The court finds that since January 1, 1986, the date to
2
which this court's order of June 4, 1987 related, the
3
conditions at GCI have changed so that much of the injunctive
4
relief previously requested is no longer necessary.

5
2. The court was impressed with the testimony of Chester
6
Lambdin, the present Superintendent of GCI. He appears to be

7
a dedicated public servant who is trying very hard to make GCI

8
an efficient and effective correctional institution. However,

9
despite his apparent dedication, there is ample room for

10
improvement in the conditions at GCI.

11
3. The court viewed a videotape of the prison compound. The

12
video depicted the physical conditions at GCI to be generally

13
satisfactory.

14
4. However, despite the interim improvements, there are still

15
problems at GCI which require this court's attention.

16
Specifically, there are six areas that must be addressed:

17
a) Security staff patrol in the dormitory

18

areas;

19

b) Control of movement of inmates from the

North Compound to the Main Compound;

20
c) Conditions in protective confinement;

21
d) Control of contraband within the prison;

22
e) Homosexual Rape and the acceptance by staff

23

of overt homosexual activity among inmates;

24

f) Lack of psychological counseling for

inmates who have been sexually assaulted;

25

26

AO72 (Rev.8/82)

5. Security staff patrol in the dormitory areas;

1

a) Overall, GCI staff is better trained and less prone

2

to turnover than in the pre-1985 period. In general,

3

supervision of staff has been improved since 1985. During

4

each shift, there is a wicket officer, a patrol officer, and

5

a sergeant to check on the officers in order to ensure that

6 patrols are made.

7

b)

In the February, 1987 audit by the American

8

Correctional Association, GCI was found to be in compliance

9 with regard to staff training standards.

10 c) However, the court notes that there still remain
1 1 opaque glass panes in the shower which impede the view of the
12 wicket officer. Additionally, the court is concerned that

13 there are inherent problems with surveillance of inmates in

14 the recreation room which is separated from the dormitory by

15 a small hallway. The court finds that these areas of

16 obstructed view cannot be properly controlled without a roving

17

patrol.

18 d) In this regard, even Superintendent L·ambdin

19 acknowledges that, without a roving patrol, an officer located

20

in the wicket may not be able to maintain adequate visual

21

control over the dormitory.

22

e) Finally, the court finds that while patrol of the

23

dorms is mandated by a written policy, there is some factual

24

dispute as to whether actual practice conforms with written

25

26

8

AO72 (Rev.8/82)

policy. The court finds that the guards do not patrol as

frequently as is needed to protect all inmates in the

1
dormitory—whether they be in the lavatory, the shower- -¯he

2

recreation room, or their own bunks.

r`'p S'

3

4

f) This failure to routinely tour c-

^ü

¿

t

result in a lack of protection for inma\

5

of the dormitory. Failure to properly s Of y
6

to enforce written policies consti '

~~-.Liberate

7

indifference on the part of GCI officials.

8

6. Control of movement of inmates from the North Compound to

9

the Main Compound;

10 a) Since 1985, a new compound has been built. There

11 are no support services, such as food service provisions in

12 the North Compound. Therefore, while Main Compound inmates are

13 restricted in terms of access to the new North Compound, North

14 Compound inmates are required to enter the Main Compound

15 because that is where they eat and get other support services.

16 b) Generally, inmates with lower custody ratings and

17 shorter periods of time until release are housed in the north

18 compound, while those on the main compound have higher custody

19

ratings and longer periods of time until release.

20 c) The flow of traffic between the Nort*` nd Main

21

Compounds subjects vulnerable North Compo``'

1ation

22

lU to potential victimization by hight · f *i ¿^

23 the Main Compound. This mingling t

es on ¾tes

24 with Main Compound inmates increases

che

25

26

AO72 (Rev.8/82)

lower risk inmates will be subjected to unwanted pressure.

d) Additionally, the metal detector, which is intended

1
to detect and prevent the flow of homemade weapons from one

2
compound to another, is often broken. Superintendent

3
testified that, since it is located outside,

4
detector is subject to condensation.

5

e) The court finds that, based on the

í •· *

6
at GCI if not the ongoing problems,3 the ai

7
aware that there is a strong likelihood, ratl

8
possibility that the safety of less violenc inmates is

9
threatened by the co-mingling with more violent inmates.

10

7. Conditions in protective confinement;

>

11

· ü¯'• ¯ `

12

a) While white inmates comprise

r.¿. °

cent

at

13 14

of the inmate population at GCI, the
1•/<
any given time there is a much higher .

¾s

c:xample,

15

in protective confinement that black i

16

in October, 1989, there were 19 people . -oed in protective

17

confinement ; 17 white, one black, one other. On November 20,

18

1989, there were 22 people housed in protective confinement,

19

3 The court acknowledges the testimony of Dr. Jorge

20

Medina and Gary Lane, psychiatrist and psychologist at GCI, respectively, that they are unaware of sexual pressure and the

21

occurrence of rape at GCI. Dr. Medina has been at GCI for 15 years, well before this court's prior finding that, in fact,

22

homosexual's rapes have occurred at GCI. Mr. Lane has been there for six years. The court does not find either Dr. Medina

23

nor Mr. Lane to be a credible witness. In light of the prior findings of this court, the court must conclude that these

witness were either not testifying truthfully or have been

24

intentionally "looking the other way" when it comes to sexual

pressure and homosexual rape at GCI. 25

26

10

AO72
(RBV.8/82)

21 white, one black. On December 12, 1989, there were 14

people housed in protective confinement; 11 white, 2 black,
1
one other.
2
b) There is a shortage of cell space in protective
3
confinement. Although the addition of the North Compound
4
permitted the GCI population to increase from 886 to 1217,
5
there has been no additional protective confinement space
6
created at GCI. Due to the lack of protective confinement

7
space at GCI, there presently exists the practice of double-

8
bunking protective confinement inmates.

9
c) The court finds that Mark White was an inmate in a
10
double-bunked protective confinement cell when he was raped

11
by his cell-mate.

12
d) The ACA standard regarding confinement space requires
13
that there be single cells in confinement because such a

14
configuration decreases the chances of assaultive behavior.

15
Both of Defendants experts, Mr. Fred A. Frey and Dr. Lockwood,

16
testified that single cells are preferable in protective

17
confinement and that double-bunking is not appropriate.

18
e) An officer is routinely stationed in front of the

19
confinement area at a control post from which visual

20
observation of all protective confinement cells is impossible.

21
Again, while the official policy requires officers to make

22

timely patrols, there is a question of fact as to whether the

23

actual practice mirrors the official policy. The court is not

24 satisfied that the official policy regarding patrols is being

25

26

11

AO72 (Rev.8/82)

carried out by the guards.

f) The court was pleased to learn that there is

1
presently a plan underway which would more than double the

2
capacity of confinement at GCI.4 However, Superintendent

3
Lambdin testified that even with the additional confinement

4
space, the current practice of double-bunking in protective

5
confinement will continue.

6
g) In 1987, an ACA review committee found GCI to be in

7
violation of the ACA standards on the subject of lighting and

8
the provision of writing space in protective confinement.

9
h) Finally, the court finds that many inmates who

10
request to be put in protective confinement due to fear for

11
their safety in the general population simply stay in

12
confinement too long. Of the ten inmates who complained of

13
a sexual assault and who were placed in protective confinement

14
at GCI, six inmates stayed in protective confinement for more

15
than 40 days. In fact, one person remained there for six

16
months and 19 days. However, the record shows that

17
Superintendent Lambdin has, on other occasions, accomplished

18

the transfer of confined inmates within a day or two.5

19

20

4 Lambdin reported to the court that the expected date

of completion of the additional confinement area is June,

21

1990.

22

5 In this regard, the court is compelled to note that

the Superintendent cannot be afforded the luxury of

23

"averaging" the amounts of time each prisoner spent in

protective confinement before transfer, in an attempt to slant

24 the facts. If one inmate remains in confinement for six
months, the fact that another remained only 2 days has no

25

impact upon the possible violation of the first inmate's

26

12

AO72
(Rev.8/82)

i) ACA standards regarding transfer of inmates from

Protective Confinement to another institution require that an
1 inmate should be transferred as early as possible after it is
2 determined that the inmate cannot return safely to the general
3 inmate population.

4 8. Control of contraband within the prison;

5 a) The court finds that the flow of contraband, such as
6 drugs, alcohol, and weapons, has decreased as compared to the
7 pre-December, 1985 period. However, despite the reduction in

8 availability, the court finds that there is a still a high

9 availability of drugs such as homemade wine, marijuana, and

10 crack cocaine on the Compound. Additionally, both the

11

Plaintiff and the Defendant presented evidence that weapons

12

are homemade weapons are present/

13 b) Dr. Swanson, the Plaintiffs' Corrections expert

14 reported to the court that after his research he concluded

15 that the supervisors at GCI appear to be somewhat complacent

16

regarding certain drugs, especially marijuana. To support

17

this finding, Dr. Swanson compared the disciplinary reports

18

of an inmate who had sneaked into the cafeteria line with that

19

of an inmate who was found to possess drugs for sale along

20

with a list of names and dollar amounts which the inmate

21

admitted were drug debts. The two inmates received similar

22

23

constitutional protection against cruel and unusual treatment in prison.

24

Additionally, the fact that transfer of an inmate has been effected in such a short time period supports the fact

25

that expeditious transfer of inmates is feasible.

26

13

AO72 (Rev.8/82)

disciplinary actionß.

c) The court finds, in light of all of the testimony,
1
that there is an attitude on the part of the staff that
2
certain kinds of contraband, such as home-made wine and
3
weapons, are unavoidable, and that lackadaisical attitude
4
contributes to the availability of contraband on the Compound.
5
d) The court also finds that the disciplinary reports
6
reviewed by Dr. Swanson indicated that only 3.8 percent of all
7
disciplinary problems were weapon-related. Dr. Swanson's
8
offered credible testimony that these statistics establish a
g
very low level of weapons confiscations and, therefore, raise
10 a question regarding the vigilance of the staff in trying to

11 confiscate these weapons.

12 e) Superintendent Lambdin himself testified that there
13 remains a problem of contraband entering the compound via non
14 inmates throwing same over the fence.

15 f) Finally, there was testimony that the metal detectors,

16 both between the North and Main Compound, and between the

17 prison and the outside world, are often in disrepair.

18 9. Homosexual Rape and the acceptance by staff of overt

19

homosexual activity

20 a) Despite the improvement in the conditions at GCI

21

since 1986, the court finds that homosexual rape is still

22

occurring at the institution. Mark White, Arnold Dennis, and

23

John Haveàrd each testified that they were raped while serving

24

25

26

14

AO72 (Rev.8/82)

time at GCI.6

b) Dr. Caddy, the Plaintiffs' psychological expert,
1
testified that his interviews with inmates left him with the
2
impression that the report of homosexual rape was not taken
3
with the seriousness it warrants. He testified that the
4
inmates at GCI indicated to him that the staff at GCI
5
communicated an attitude that inmates who had been raped
6
should have done something to solve their own problem and to
7
be a real man.
8
c) Mark White's complaint about being raped was received
9
with cynicism. Despite the fact that the medical report from
10
Glades General Hospital indicated conditions consistent with
11
a finding of sexual assault, the investigation of the rape was
12
limited. Due to a lack of evidence, there was no internal
13
reprimand nor state prosecution of the alleged rapist.
14
d) Arnold Dennis testified that he was raped in the
15
bathroom of Dormitory B in the middle of the night. The next
16
day, after further harassment and physical attack from his
17
assailant, Dennis told an officer that he had been
18

19

20

21

6 While the court acknowledges that the Defendants made

22

certain inroads on cross-examination regarding the credibility of these witnesses and the verity of their accounts of rape,

23

the court finds these witnesses to be credible. In view of the psychological impact and the stigma attached to male rape

24

victims, it is difficult for the court to conclude that these prisoners would come into court and complain of rape had it

25

not actual occurred.

26

15

AO72 (Rev.8/82)

assaulted.7 The officer told him to fight his rapist so that

he would not bother him anymore. Dennis refused to do this.

1

After identifying his rapist from photos, he was placed in

2

protective custody. He was eventually transferred to another

3
institution.

4
Despite his objections, Dennis was transferred in a van

5
along with his rapist. During the transfer, he was attacked

6
again.

7
e) John Haveard was raped in a closet by an inmate who

8
had made sexual advances to him soon after Haveard arrived at

9

GCI.

Thereafter, he was transferred into protective

10 confinement. Detective Haller, who investigated the rape of

11 John Haveard, testified that no mugshots were ever shown to

12 the victim and no search was conducted to find the rapist.

13 d) It is clear from the entire record in this case that

14 the GCI officials are aware that there is presently a "strong

15 likelihood, rather than a mere possibility," that a callous

16 attitude regarding prison rape will surely result in the

17

underreporting of same. Accordingly, the court finds that,

18

failure to provide mandatory training for prison guards, those

19

charged with the initial responsibility of handling a victim,

20

constitutes deliberate indifference.

21 e) Although the inmates testified that there is staff

22

toleration of overt sexual activity, there was not enough

23

24

7 Dennis admitted that he did not tell the officers
about the rape because he found it too embarrassing and he

25

didn't believe it would do any good.

26

16

AO72 (Rev.8/82)

evidence presented for the court to conclude that this is the

cause of inmate assaults.
1
f) In fact, during the year preceding this trial, there
2
were 20 disciplinary reports and proceedings instituted
3
against inmates at GCI who had been involved in 13 incidents
4
of voluntary sexual activity. The Court notes that charges
5
were brought in each case by different officers, indicating
6
that more than just a handful of officers are reprimanding
7
inmates for overt sexual conduct.8
8
10. Lack of psychological counseling for inmates who have been
9
sexually assaulted:
10
a) None of the inmates who testified to having been
11
raped at GCI was offered the opportunity to receive
12
psychiatric counseling for rape victims.
13
b) There is presently no provision for mental health
14
services, support services, or rape crisis management for GCI
15
prisoners who have been raped.
16
c) The staff psychiatrist, Dr. Medina, has never, in the
17
fifteen years he has been at GCI, been consulted regarding a
18
single inmate who had been raped. The court finds that even
19
had he been consulted, it is unlikely that he could have
20
provided the needed rape counseling as he has had no special
21
training for dealing with victims of rape.
22

23

8 This perceived "acceptance" might be rooted in the

lack of adequate patrolling and supervision o£ the inmates by

24

the officers, as discussed supra. If the officers don't see

the activity, they will not report it and their failure to do

25

so might be perceived as "acceptance."

26

17

AO72 (Rev.8/82)

d) Gary Lane, staff psychologist at GCI, has no

experience in rape crisis treatment.
1
e) Dr. Caddy testified that when a person is raped in
2
what appears to be a life-threatening circumstance, such a
3
person is more vulnerable to the perceived threat and thus
4
more likely to have a far greater degree of psychological
5
maladjustment. For some men who have been raped, there is the
6
sense that they have lost their manhood. They often suffer
7
nightmares. The court finds that these symptoms are
8
consistent with those reported by the raped inmates who
9
testified.
10
d) Finally, the court finds Dr. Caddy to be most
11
credible when he admits that, although these symptoms do not
12
always require the intervention of a psychologist, they do
13
require the attention of a person who has expertise in the
14
treatment of patients who have been sexually abused. No such

15
person presently exists at GCI.

16
e) In light of the past and present circumstances at
17
GCI, and the findings of psychological problems accompanied

18
by homosexual assault in a prison setting, the court finds

19
that the GCI officials have a duty to protect the health of

20

rape victims within their compound. The failure to do so will

21

surely result in the unnecessary and wanton infliction of

22

pain.

23

24

25

26

18

AO72 (Rev.8/82)

CONCLUSIONS OF LAW
1 1. Title 42 U.S.C. S 1983 establishes the right of a person
2 to pursue a civil action based upon the deprivation of
3 federally protected rights. To recover, the plaintiffs must
4 prove two elements: (1) the conduct complained of must have
5 been committed by a person acting under the color of state
6 law; and (2) the conduct must have deprived the plaintiff of
7 rights, privileges, or immunities secured by the constitution
8 or laws of the United States. Paratt v. Taylor, 451 U.S. 527,
9 535 (1981).

10 2. The language of the Eighth Amendment, "excessive bail

11 shall not be required, nor excessive fines imposed, nor cruel

12 and unusual punishments inflicted," manifests "an intention

13

to limit the power of those entrusted with the criminal-law

14

function of government." Whitlev v. Albers, 475 U.S. 310, 318

15

(1986), citing Inoraham v. Wright. 430 U.S. 651, 664 (1977).

16

3. The Eighth Amendment embodies "broad and idealistic

17

concepts of dignity, civilized standards, humanity, and

18

decency...," Estelle v. Gamble, at 102, quoting Jackson v.

19

Bishop. 404 F.2d 571, 579 (8th Cir. 1968).

20

4. Accordingly, the Eighth Amendment prohibits punishments

21

which, although not physically barbarous, "involve the

22 unnecessary and wanton infliction of pain," Greg v. Georgia,

23

428 U.S. 153, 173 (1976), or are grossly disproportionate to

24 the severity of the crime. Coker v. Georgia, 433 U.S. 584, 592

25

26

19

AO72 (Rev.8/82)

(1977) (plurality opinion); Rhodes v. Chapman, at 346.

5. Harsh "conditions of confinement" may constitute cruel and 1
unusual punishment unless such conditions "are part of the 2
penalty that criminal offenders pay for their offenses against 3
society." Rhodes v. Chapman. 452 U.S. 337, 347 (1981). 4
6. "No static `test' can exist by which courts determine 5
whether conditions of confinement are cruel and unusual, for 6
the Eighth Amendment `must draw its meaning from evolving 7
standards of decency that mark the progress of a maturing 8
society.'" Rhodes v. Chapman, at 346, quoting, Trop v. Dulles, 9
356 U.S. 86 (1958) (plurality opinion); see also, Estelle v.
10 Gamble. 429 U.S. 97, 102 (1976). Conditions that cannot be
1 1 said to be cruel and unusual under contemporary standards are
12 not unconstitutional." Rhodes v. Chapman, at 347.
13 7. For a prisoner attempting to prove a violation of the
14 Eighth Amendment, "[a]n express intent to inflict unnecessary
15 pain is not required," Whitley v. Albers, at 318, citing
16 Estelle v. Gamble, at 104. Rather, the "unnecessary and
17 wanton" infliction of pain on prisoners constitutes cruel and
18 unusual punishment prohibited by the Eighth Amendment, even
19 in the absence of intent to harm. Id., citing Ingraham v.
20 Wright, at 670; Gregg v. Georgia at 173.
21 8. When officials become aware of a threat to an inmate's
22 health and safety, the Eight Amendment's proscription against
23 cruel and unusual punishment imposes a duty to provide
24 reasonable protection. Brown v. Hughes. 894 F.2d 1533, 1537
25

26

20

AO72 (Rev.8/82)

(11th Cir. 1990), citing Hopkins v. Britton. 742 F.2d 1308,

1310 (11th Cir. 1984); Gullate v. Potts. 654 F.2d 1007, 1012
1 (5th Cir. Unit B 1981).
2 9. Merely negligent failure to protect an inmate from attack
3 does not justify liability under §1983. Brown, supra, citing

4 Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). However,

5 where the known risk of injury is a "strong likelihood, rather

6 than a mere possibility," an official's failure to act can

7 constitute deliberate indifference. Id., citing Edwards v.

8 Gilbert. 867 F.2d 1271, 1276 (11th Cir. 1989).

9 10. Upon a finding of constitutional violation, a federal

10 court should enter injunctive relief that is "tailored to cure

11 the `condition that offends the constitution.'" Milliken v.

12 Bradley, 433 U.S. 267, 282 (1977), Quoting, Milliken v.

13 Bradley. 418 U.S. 717, 738 (1974).

14 11. District judges possess substantial discretion in

15 formulating injunctive remedies appropriate to the scope of

16 the constitutional violations found. Milliken, 433 at 288;

17 Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1,

18 15 (1971).

19 12. Regarding the possible mootness of the request for

20 injunctive relief due to post-litigation improvements, the

21 Supreme has stated:

22 The test for mootness in cases such as this is

23

a stringent one. Mere voluntary cessation of

allegedly illegal conduct does not moot a

24

case; if it did, the courts would be compelled

to leave "the defendant...free to return to

25

his old ways." A case might become moot if

26

21

AO72 (Rev.8/82)

subsequent events made it absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur.

1
United States v. Concentrated Phosphate Export Ass'n, 393 U.S.

2

199, 203 (1968)(citations omitted).

3
13. Additionally, the former Fifth Circuit has specifically

4
applied this doctrine regarding the mootness of injunctive

5
relief to the prison setting. In Jones v. Diamond, 638 F.2d

6
1364, 1375 (5th Cir. 1981) (en bane), cert dismissed. 453 U.S.

7
950 (1981), the appellate court refused to vacate an

8
injunction in a prison conditions case even though former

9
conditions had improved. The court said:

10
[Changes made by defendants after a suit is

11

filed do not remove the necessity of

injunctive relief, for practices may be

12

reinstated as swiftly as they were suspended.

The burden is on the Defendants to prove that

13

the wrongs of the past could not reasonably be

expected to recur.

14
Jones, at 1374-75. That court concluded that the improvements

15
in prison conditions after over five years of litigation, did

16
not eliminate the need for an injunction.

17

18
INJUNCTIVE RELIEF
19
It must be noted that, for practical reasons, it is not
20
within the jurisdiction nor power of this court to enjoin
21
homosexual rape, assaults, smuggling, or the use of contraband
22
within the prison. The court may, however, enjoin certain
23
procedures or require others, in an attempt to decrease the
24
likelihood of the occurrence of these social ills within the
25

26

22

AO72 (Rev.8/82)

confinement of the prison and to satisfy the requirements of

the eighth amendment. Having determined that certain 1
conditions exist within GCI which presently violate the eighth 2
amendment prohibition against cruel and unusual punishment, 3
the court must award injunctive relief in favor of the 4
Plaintiffs. 5
Cognizant of both the financial constraints placed upon 6
the Defendant and the awesome nature of his task, the Court 7
must yet exercise its equitable authority, and remedy the 8
practices and conditions that currently exist at GCI in 9
violation of the eighth amendment.
10 Accordingly, the Defendant Chester Lambdin,
11 Superintendent of GCI, is affirmatively enjoined to carry out
12 the following required courses of action:
13 Regarding the Security staff patrol in the dormitory areas;
14 1. Any opaque glass panes in the shower area which impede
15 visibility of the wicket officer must be replaced with clear
16 glass. These panes are to be cleaned and maintained clear;
17 when same again become opaque from grime, they must be
18 promptly replaced.
19 2. An official policy regarding the frequency of the roving
20 patrols must be promulgated and enforced. Guards should be
21 warned that the failure to patrol will result in some sort of
22 disciplinary action against them; repeated failure to comply
23 with the roving patrol policy could result in the termination
24 of the guard.
25

26

23

AO72 (Rev.8/82)

Regarding the control of movement of inmates from the North
1
Compound to the Main Compound;
2
1. The metal detector located between the North and Main
3
Compoundroustbe kept operative and in good repair. Frequent
4
inspections of same should be conducted to assure it is
5
operating correctly.
6

7
Regarding Conditions in protective confinement;
8
1. There shall be no double-bunking in protective
9
confinement. 10
2. There shall be no prolonged stays in protective 11
confinement; any stay in excess of 30 days is a prolonged 12
stay. 13
3. There shall be swift transfer of any inmate who is in 14
protective confinement and for whom it has been determined 15
that return to the general prison population would be unsafe. 16
4. The lighting in protective confinement must meet the ACA 17
requirement. 18
5. The roving patrol by the officer guarding protective 19
confinement must be enforced. Any violation should be
20 sanctioned in the same manner as noted above, that is,
21 disciplinary action and/or termination for repeated failure
22 to patrol.
23

24

25

26

24

AO72 (Rev.B/82)

1 Regarding Control of contraband within the prison:
2 1. The Superintendant must promulgate and publish to all
3 guards and inmates an official policy on the handling and
4 severity of a violation involving all contraband, including
5 drugs, alcohol, weapons.
6 2. Additionally, he must institute a consistently harsh,
7 standard penalty for those prisoners found in possession of
8 contraband.
9 3. The staff must perform regular "shake-downs" of the
10 dormitories to detect the presence of contraband.
11 Additionally, the guards must be warned that the repeated
12 discovery of contraband in the area for which they are
13 responsible will result in disciplinary action against them.
14 Continuous discovery of same could result in termination.
15 4. The staff must conduct thorough searches for contraband
16 of all those entering the compound, including the guards
17 reporting for work each day.
18 5. The metal detector at the entrance to the compound must
19 be operative at all times; regular inspections must be
20 conducted to assure same.
21 Regarding Homosexual Rape and the acceptance by staff of overt
22 homosexual activity among inmates;
23 1. The Superintendant must institute an official procedure
24
for the prompt investigation of all alleged sexual assaults; 25

26

25

AO72 (Rev.8/82)

he must see that same is enforced.

2. He must see that all alleged cases of sexual assault are
1
referred to the state attorneys office for possible
2
prosecution.
3
Regarding the lack of psychological counseling for inmates
4
who have been sexually assaulted;
5
1. The Superintendant must provide training for all prison

6
guards in the handling of rape complaints. This should

7

include education regarding the seriousness of a homosexual

8

assault in prison.

9

2. The Superintendant must require the staff psychiatrist and

10

the staff psychologist to acquire special training in the form

11

of a course or seminar on rape crisis management.

12

3. He must promulgate an official referral procedure of all

13

rape victims to the resident psychiatrist or psychologist for

14

evaluation.

15

SUGGESTED REMEDIES

16

In addition to the above required injunctive relief, the

17

court hereby strongly suggests. although does not require,

18

that the Defendant Chester Lambdin adopt the following

19

procedures:

20

1. Installation of a time clock at various check-in areas to

21

monitor and enforce the roving patrol of all prison guards.

22

2. Construction of food service facilities and support

23

facilities at the North Compound"" so that North Compound

24 inmates need not co-mingle with the Main Compound inmates.

25
26 26

AO72 (Rev.8/82)

3. Expeditious completion of the additional confinement areas

to cure the lack of available space therein. 1
4. Employment of trained dogs to detect the presence of 2
marijuana and cocaine in the dormitories. 3
5. Investigation and consideration of the possibility of 4
installing higher fences to prevent the passing of contraband 5
over the fence. 6
6. Creation of an on-site rape crisis center, manned by an 7
expert in the field of rape crisis management. 8
7. Improvement of work programs for inmates. The 9
Superintendent should consider the implementation of an
10 educational program in horticulture. A tree farm and/or
1 1 nursery might be put into operation wherby the skills of
12 landscape, maintenance, nursery work, and vegetable production
13 might be taught.
14

15

16 In view all of the foregoing, it is

17 ORDERED and ADJUDGED that Plaintiff's Request for

18

injunctive relief is GRANTED. The Clerk of the court is

19

hereby instructed to enter final judgment in favor of the

20

Plaintiffs and against the Defendants in accordance with the

21

provisions of this order and the June 4, 1987 order of this

22

court. Thereafter, the clerk is instructed to close this case

23 as all remaining issues, save for the award of attorneys

24

25

26

27

AO72 (Rev.8/82)

fees, have now been addressed and resolved. Additionally, it

is . 1
ORDERED and ADJUDGED that that part of the June 4, 1987 2
order which contemplates the use of committees to address the 3
injunctive relief is hereby VACATED. However, in all other 4
respects, that order, which addresses liability and damages, 5
remains in full force and effect and is incorporated herein 6
by reference. Finally, it is 7
ORDERED and ADJUDGED that ruling on the outstanding 8
motion for attorneys fees and costs is hereby reserved until 9
the previously pending motion is again fully briefed and
10 supplemented with supporting affidavits reflecting the total
1 1 amount of fees and costs incurred. Accordingly, the
12 Plaintiffs, the prevailing parties, are ordered to submit
13 revised affidavits in support of fees within 20 days of the
14 date of this order. Thereafter, the Defendant shall have ten
15 days in which to respond to same.
16 DONE and ORDERED at West Palm Beach, Florida, this
17 of April, 1990.
18

19

20

21

UNITED/STATES DISTRICT JUDGE

22 cc: David M. Lipman, Esq.
23 James A. Tucker, Esq. William R. Amlong, Esq.
24 Michael Davis, Esq. Walter Meginniss, Esq.
25

26

28

AO72 (Rev.8/82)

FH.F'?PY __2±

APR 3 0 1890

1

J s_ i·i\orrLA.w.`p.fc`'

2

UNITED STATES DISTRICT CODRT SOUTHERN DISTRICT OF FLORIDA
CASE NO.82-8196-CIV-PAINE

ANTHONY LaMARCA, MARTIN

3

SAUNDERS, and EDWIN JOHNSON,

individually and on behalf of

4

all others similarly situated,

and DAVID ALDRED, STEVE H. BRONSON, JR.,

5

EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT,

MICHAEL GORDON, and BILLY JOE HARPER,

6

individually.

7

Plaintiffs,

8 vs.

9

R.V. TURNER, individually in his

former capacity as Superintendent of Glades

10

Correctional Institution, CHESTER LAMBDIN, in

his official capacity as Superintendent of

11

Glades Correctional Institution,

12

Defendants.

13 FINAL JUDGMENT
14

15 This action came on before the Honorable James C. Paine,
16 United States District Judge, presiding. On this day the
17 Court has entered its Findings of Fact and Conclusions of Law
18 regarding injunctive relief in favor of the Plaintiffs and
1S against the Defendant. Therefore, in accordance with this
20 court's previous Order on Report and Recommendation of
21 Magistrate reprinted in Lamarca v. Turner, 662 F. Supp. 647,
22 650-667, and the-Order of April 29, 1990, it is hereby
23 ORDERED and ADJUDGED that the Court's previous judgment
24 entered on June 4, 1987, Lamarca, supra. 662 F. Supp. at 666-
25

26

AO72 (Rev.8/82)

67 is readopted and in continuing effect except as modified

or rejected by the court's Order of June 4, 1987, Lamarca. 1

supra. 662 F. Supp. 650-666 and the April 29, 1990 order. 2

Additionally, it is 3

ORDERED and ADJUDGED that judgment shall be entered 4

effective on June 4, 1987 for Plaintiffs Lamarca, Saunders, 5

Johnson, Aldred, Bronson, Cobb, Durrance, and Harper and 6

against Defendant Turner in accordance with the following 7

award of compensatory damages for Turner's violation of 8

Plaintiff's constitutional rights: 9

(1) ANTHONY LAMARCA

$9,000.00

10

(2) MARTIN SAUNDERS

$30,000.00

11

(3) EDWIN JOHNSON

$13,000.00

12

(4) DAVID ALDRED

$30,000.00

13

(5) STEVE H. BRONSON, JR.

$30,000.00

14

(6) EDDIE COBB

$6,500.00

15

(7) RON DURRANCE

$30,000.00

16

(8) BILLY JOE HARPER

$30,000.00

17

Interest on the Judgment shall run from the date of the first

18

Judgment of June 4, 1987 until paid, at the rate of 7.02

19

percent. Further, it is 20

ORDERED and ADJUDGED that regarding the claims of

21 Plaintiffs Epprecht and Gordon, judgment is entered against

22

for Defendants and against Plaintiffs, the Plaintiffs to have

23
nothing. Finally, regarding the claim for injunctive relief,

24
it is

25

26

AO72 (Rev.8/82)

ORDERED and ADJUDGED that the Defendant Chester Lambdin,
Superintendent of GCI, is affirmatively enjoined to carry out 1
the following required courses of action: 2
Regarding the Security staff patrol in the dormitory areas; 3
1. Any opaque glass panes in the shower area which impede 4
visibility of the wicket officer must be replaced with clear 5
glass. These panes are to be cleaned and maintained clear; 6
when same again become opaque from grime, they must be 7
promptly replaced. 8
2. An official policy regarding the frequency of the roving 9
patrols must be promulgated and enforced. Guards should be 10
warned that the failure to patrol will result in some sort of 11
disciplinary action against them; repeated failure to comply 12
with the roving patrol policy could result in the termination 13
of the guard. 14
Regarding the control of movement of inmates from the North 15
Compound to the Main Compoundt 16
1. The metal detector located between the North and Main 17
Compound must be kept operative and in good repair. Frequent 18
inspections of same should be conducted to assure it is 19
operating correctly. 20
Regarding Conditions in protective confinement: 21
1. There shall be no double-bunking in protective 22
confinement. 23
2. There shall be no prolonged stays in protective 24
confinement; any stay in excess of 30 days is a prolonged 25
26
AO72 (Rev.8/82)

stay.

3. There shall be swift transfer of any inmate who is in 1
protective confinement and for whom it has been determined 2
that return to the general prison population would be unsafe. 3
4. The lighting in protective confinement must meet the ACA 4
requirement. 5
5. The roving patrol by the officer guarding protective 6
confinement must be enforced. Any violation should be 7
sanctioned in the same manner as noted above, that is, 8
disciplinary action and/or termination for repeated failure 9
to patrol.
10 Regarding Control of contraband within the prison:
11 1. The Superintendent must promulgate and publish to all
12 guards and inmates an official policy on the handling and
13 severity of a violation involving all contraband, including
14 drugs, alcohol, weapons.
15 2. Additionally, he must institute a consistently harsh,
16 standard penalty for those prisoners found in possession of
17 contraband.
18 3. The staff must perform regular "shake-downs" of the
19 dormitories to detect the presence of contraband.

20 Additionally, the guards must be warned that the repeated

21

discovery of contraband in the area for which they are

22 responsible will result in disciplinary action against them.

23 Continuous discovery of same could result in termination.

24 4. The staff must conduct thorough searches for contraband
25

26

AO72 (Rev.8/82)

of all those entering the compound, including the guards
reporting for work each day. 1
5. The metal detector at the entrance to the compound must 2
be operative at all times; regular inspections must be 3
conducted to assure same. 4
Regarding Homosexual Rape and the acceptance by staff of overt 5
homosexual activity among inmates; 6
1. The Superintendent must institute an official procedure 7
for the prompt investigation of all alleged sexual assaults; 8
he must see that same is enforced. 9
2. He must see that all alleged cases of sexual assault are 10
referred to the state attorneys office for possible 11
prosecution. 12
Regarding the lack of psychological counseling for inmates 13
who have been sexually assaulted: 14
1. The Superintendent must provide training for all prison 15
guards in the handling of rape complaints. This should 16
include education regarding the seriousness of a homosexual 17
assault in prison. 18
2. The Superintendent must require the staff psychiatrist and 19
the staff psychologist to acquire special training in the form 20
of a course or seminar on rape crisis management. 21
3. He must promulgate an official referral procedure of all 22
rape victims to the resident psychiatrist or psychologist for 23
evaluation. Finally, it is 24
ORDERED and ADJUDGED that the Plaintiffs, as prevailing 25
26
AO72 (Rev.8/82)

parties, are required to submit affidavits in support of an

award of fees and costs within 20 days of the date of the 1
court's final order; the Defendant shall have 10 days 2
thereafter to respond to same. The court will then enter a 3
post-judgment order regarding the award of attorneys fees and 4
costs. 5
Dated at West Palm Beach, Florida on this yù day of 6
April, 1990. 7

8
ROBERT M. MARCH, CLERK 9

10
11 cc:
12 David M. Lipman, Esq. James A. Tucker, Esq.
13 William R. Amlong, Esq. Michael Davis, Esq.
14 Walter Meginnis, Esq.

9vava Ringheim, DeputwClerk

15

16

T¯¯`l

17

18

19

20

21

22

23

24

25

26

AO72 (Rev.8/82)

UNITED STATES DISTRICT COURT

1

SOUTHERN DISTRICT OF FLORIDA

2

CASE NO.82-8196-CIV-PAINE

3

4

ANTHONY LaMARCA, MARTIN

SAUNDERS, and EDWIN JOHNSON,

5

individually and on behalf of

all others similarly situated,

6

and DAVID ALDRED, STEVE H. BRONSON, JR.,

EDDIE COBB, RON DURRANCE, WAYNE EPPRECHT,

7 MICHAEL GORDON, and BILLY JOE HARPER, individually.

8

Plaintiffs,

i

9

vs.

10 R.V. TURNER, individually in his

1 1

former capacity as Superintendent of Glades Correctional Institution, CHESTER LAMBDIN, in1

12

his official capacity as Superintendent of

Glades Correctional Institution,

13 Defendants.

14

15 ORDER DENYING NEW TRIAL AND GRANTING ATTORNEYS' FEES

16 This action is before the Court upon the Defendant's

17

Motion for New Trial or to Alter Judgment (DE 303) and the

18

Plaintiffs' Motion for an Award of Attorney Fees and

19

Litigation Expenses (DE 304). Having reviewed the file and

20 the relevant authorities, the court enters the following

21

order.

22

PROCEDURAL BACKGROUND

23

In light of the fact that the present case has been

24

remanded by the Eleventh Circuit Court of Appeals and that

25

26

AO 72 (Rev.8'82)

this lawsuit spans eight years, the court has determined that

a brief review of the procedural background of the case is
1 necessary.
2 On March 14, 1982, Anthony Lamarca filed a hand-written,
3 pro se complaint in the United States District Court pursuant
4 to 42 U.S.C.§ 1983. The named defendant was R.V. Turner, the
5 then-Superintendent of Glades Correctional Institution (GCI).
6 The complaint contained, inter alia, allegations that Lamarca
7 was being subjected to ongoing physical violence and
8 harassment by other inmates because of his refusal to

9 participate in homosexual activity.

Additionally, the

10

Plaintiff alleged that GCI officials failed to take any

11

corrective action to alleviate that situation. Pursuant to the

12

Southern District of Florida Local Magistrate Rule l(f), this

13

case was transferred to Magistrate Peter L. Nimkoff.

14 On September 21, 1983, Lamarca, now represented by
15 counsel and joined by three other former and/or current prison

16 inmates at GCI, Martin Saunders, Eswin Johnson, and Harry

17

Rosenbaum, filed an amended class action complaint on behalf

18

of themselves and other inmates at the institution. The First

19

Amended Complaint purported to redress physical and sexual

20

assaults and threats of physical and sexual assaults. In the

21

first amended complaint, Plaintiffs sought monetary damages

22

as well as declaratory and injunctive relief to enjoin the

23 Defendants from various practices and inaction which

24 perpetuated the violence, threats, and sexual abuse by

25

26

AO 72 (Rev.8/821

prisoners at GCI.

On November 2, 1983, the Defendants filed their answer

1
to Plaintiff's First Amended Complaint. The Defendants did 2
not demand a jury trial at that time.
3 The injunctive relief aspect of the lawsuit was certified
4 as a class action on April 13, 1984. The court defined the
5 class as all persons who were, or would be, incarcerated at

6 GCI.

7 On September 20, 1985, the court granted the Plaintiffs

8 leave to file a Second Amended Complaint, the effect of which

9 was to include damage claims of additional Plaintiffs.

10 Additionally, regarding the injunctive relief, the Second

1 1 Amended Complaint named Defendant Turner's successor at GCI,

12

Randall Music, in his official capacity. Thereafter, the

13

Defendants made a demand for jury trial.

14 Finally, on November 15, 1985, Plaintiffs moved for leave

15 to file a third amended complaint, which would substitute

16

certain plaintiffs. The Magistrate granted the Plaintiff's

17

motion to file a Third Amended Complaint and, in the same

18

order, denied the Defendant's jury demand as well as a second

19

request for a continuance.

20

Magistrate Nimkoff held an evidentiary hearing in

21

December, 1985. During the pendency of the hearing, the

22

Defendants raised the matter of recusal of the Magistrate.

23

The motion for recusal was denied. On January 8, 1986, the

24

Magistrate entered his Report and Recommendation. Despite the

25

26

A0 72 (Rev.8/82)

Defendants objections to the Magistrate's Report and

Recommendation, this court affirmed same as to most of the
1 issues. That order is reported at Lamarca v. Turner. 662 F.
2 Supp. 647 (1987).
3 The Defendants filed a timely appeal which, as discussed
4 above, was dismissed without prejudice.
5 On October 18, 1989, this court conducted a status
6 conference in the present case. Thereafter, on October 23,
7 1989, the court issued an order setting forth a discovery
8 schedule and scheduling an evidentiary hearing before the
9 court for January/ 1990. The evidentiary hearing was intended

10 to supplant the original plan involving the appointment of

1 1 committees to determine the need for injunctive relief.

12 Regarding the appointment of committees to address the
13 injunctive relief, the court expressed some concern that such

14 an appointment might result in an impermissible delegation of

15 judicial responsibility. Accordingly, the court vacated that

16 part of the June 4, 1987 order which contemplated the

17 utilization of committees to recommend injunctive relief.

18 On January, 1990, the court held the scheduled

19

evidentiary hearing to determine what, if any, injunctive

20

relief should be granted in this 42 U.S.C. § 1983 class

21

action. Thereafter, when the parties had presented the court

22 with proposed findings of fact and conclusions of law, the

23

court entered an order granting injunctive relief.

24 Specifically, the court found that, despite interim

25

26

A 0 72 (Rev.8'82l

improvements/ there were still problems at GCI which required

the attention of the court and the Superintendent.

1 Specifically, the court found that the following six areas

2 warranted attention:

3 I a) Security staff patrol in the dormitory

4

areas;

5

b) Control of movement of inmates from the

North Compound to the Main Compound;

6 c) Conditions in protective confinement;

7 d) Control of contraband within the prison;

8 e) Homosexual Rape and the acceptance by staff

9

of overt homosexual activity among inmates;

10

f) Lack of psychological counseling for

inmates who have been sexually assaulted;

1 1

12

In view of these findings, the court ordered the

13

Defendants to carry out certain itemized procedures and to

14 make various changes in the way the prison was run.

15

On May 29, 1990, the Defendant filed a motion for new

16

trial or to alter judgment. The court will address this

17

motion first.

18

Motion for New Trial Or to Alter Judgment

19

The Defendant specifically challenges that part of this

court's order granting injunctive relief which requires the 20

GCI staff to conduct "thorough searches for contraband of all 21

those entering the compound, including the guards reporting 22

for work each day." The Defendant contends that such a 23
directive necessarily anticipates that all persons entering
24
the prison compound be strip searched. 25
5 26

AO 72 (Rev.8/82)

As a basis for this contention, the Defendant argues that

"the undisputed evidence in this cause has established that
1 all persons are presently subject to electronic and/or pat
2 down searches; that the only other technique of search that
3 would be more thorough than those presently in use would be
4 the universal use of strip searches."

5 The Plaintiffs have filed opposition to the Motion for

6 New Trial or to Alter judgment/ claiming that the Defendant

7 has concluded that the final judgment requires that which it

8 plainly does not say. The court agrees.

9 For reasons supported more fully herein, the court finds

10 that the Defendant has made an unwarranted leap in

1 1 interpretation when he concludes that when the court said

12

"thorough searches," it meant "universal strip searches of

13

all persons going in and out of the compound."

14

In the findings of fact, the court expressly found that

15

the metal detector, which is intended to detect and prevent

16

the flow of contraband from one compound to another, is often

17

broken. This conclusion was supported by Superintendent

18 Lambdin's own testimony that, since it is located outside, the

19 metal detector is subject to condensation.

20

Further, the court specifically found that there remained

21

a high availability of drugs such as marijuana and crack

22

cocaine on the Compound. Dr. Swanson, the Plaintiffs'

23 Corrections expert reported to the court that after his

24 research he concluded that the supervisors at GCI appeared to

25

26

AO 72 (Rev.8'82l

be somewhat complacent regarding the presence of certain

drugs, especially marijuana. The court found Dr. Swanson to
1 be a credible witness.
2 Due to the court's finding of the presence of contraband
3 such as marijuana and cocaine, items not manufactured within
4 the prison confines, the court impliedly concluded that the
5 source of same was the outside world. Indeed, Superintendent
6 L·ambdin himself testified that there remains a problem of
7 contraband entering the compound via non inmates throwing same
8 over the fence. Finally, as stated heretofore, the court heard
9 testimony that the metal detectors, located both between the
10 North and Main Compound, and between the prison and the

11

outside world, are often in disrepair.

12 The undisputed evidence in this cause has established
13 that outside contraband is present in the prison compound.
14 The presence of such contraband which necessarily entered the
15 prison compound from the outside world, led the court to

16

conclude that both the electronic and pat down searches which

17 were conducted by the staff were not thorough. Therefore,

18 when the court ordered that "thorough searches for contraband

19

of all those entering the compound, including the guards

20 reporting for work each day" be conducted, the court meant

21

that efficient, effective and diligent searches should be

22 conducted. It was clear to the court that while the theory

23 of electronic and pat down searches was "thorough," the

24 practice was less than efficient and, therefore, not thorough.

25

26

AO 72 (Rev.8/82)

(

civil action based upon the deprivation of federally protected

rights.

1 When Congress passed the Civil Rights Attorneys' Fees
2 Awards Act of 1976, 42 U.S.C. S1988, it expressed its clear
3 intent to provide for the award of a reasonable attorney's fee

4 to the prevailing party as part of the taxable costs in a suit

5 brought under any of several specified civil rights statutes.

6 The applicable statute states in pertinent part that:

7

In any action or proceeding to enforce a

8

provision of section 1981, 1982, 1983,

1985, and 1986 of this title, title IX of

9

public Law 92-318, or title VI of the

Civil Rights Act of 1964, the court, in

10

its discretion, may allow the prevailing

party, other than the United States, a

1 1

reasonable attorney's fee as part of the

costs.

12 42 U.S.C. §1988 (1981).

13 This court necessarily commences this analysis with the

14 proposition that a prevailing plaintiff "`should ordinarily

15 recover an attorney's fee unless special circumstances would

16

render such an award unjust.'" Hensley v. Eckerhart, 461 U.S.

17

424, 430 (1983), quoting S. Rep. No. 94-1011, 1976 U.S. Code

18

Cong. & Admin. News, p. 5912) and Newman v. Pigqie Park

19

Enterprises, Inc., 390 U.S. 400, 402 (1968); see also Dowdell

20

v. City of Apopka, Florida. 698 F.2d 1181, 1189 (11th Cir.

21

1983). The court is not aware of the existence of any

22

`special circumstances' which would dictate against an award

23 of attorney's fees in the present case. In fact, the

24 Defendants have not argued that any such special

25

26

AO 72 (Rev.8'82)

circumstances exist.

Accordingly, the court finds that the Plaintiffs in this 1
case, as the prevailing parties, are entitled to an award of 2
attorneys fees. It is important to note that the Defendant

3

substantially agrees, with only a slight exception,1 discussed

4 infra, that the Plaintiff is, as a matter of law, entitled to

5

an award of fees. Therefore, the only question which remains

6

to be answered is: what amount of fees constitutes an

7

appropriate award?

8 In offering a suggested answer to this question, the

9

Plaintiffs have raised several legal and factual questions

10 regarding the proper amount of fees to be awarded. First,

1 1 regarding Stage I of the litigation, the Plaintiffs request

12

an enhancement for 'delay in payment."

Second, the

13

Plaintiffs have proposed an hourly rate of $225 for Mr.

14

Lipman, $200 for Mr. Amlong, and $125 for Mr. Tucker.2

15

Finally, the Plaintiffs urge the court to exercise an

16

enhancement of the total lodestar for Stage II of the

17

litigation.

18

In contrast, the Defendant contends that, first, the

19

issue of attorneys fees for Stage I has been laid to rest and

20 should not be disturbed upon review. Second, that the rate

21

22

1 Specifically, the Defendants challenge the stature of

the Plaintiffs as "prevailing parties" on the single issue of

23 the ill-fated appeal to the Eleventh Circuit.

24

2 The Defendant has not challenged the reasonableness of

Mr. Tucker's hourly rate.

25

10 26

AO 72 (Rev.8/82)

per hour and the number of hours expended by each attorney

are unreasonably high and unnecessarily duplicative,
1 respectively. Finally, regarding the enhancement of the
2 Stage II lodestar, the Defendants argue that the Plaintiffs
3 have failed to establish a right to same.
4

5 CALCULATION OF ATTORNEY'S FEES: STAGE I

6 On October 8, 1987, this court entered an Order awarding

7

attorneys fees and certain litigation expenses3. That order,

8 which was entered pursuant to a consent decree which was

9 submitted by the parties, provided for the following award of

10 fees and costs:

1 1 1. Attorneys Fees

12 a. Lipman & Weisberg -

$96,815.25

13 b. William R. Amlong

$29,956.50

14 Total Attorney Fee Award;

$126,771.75

1 5 2. Litigation Expenses (resolved)

16 a. Reimbursement to law firm of Lipman

17

and Weisberg

$16,468.11

18

3. Interest

19

a. interest was awarded at 7.8% per annum from October 8, 1987 until the date of payment on both the attorney

20

fee award of $126, 771.75 and the litigation expenses of $16,468.11

21

22

3 At that time, the court reserved ruling on the

additional expenses of $13,925.65. These unresolved expenses

23

include certain expert witness fees and miscellaneous

expenses. These matters will be discussed, infra, when the 24 court addresses the Plaintiffs' entitlement to litigation

expenses. 25

11 26

AO 72 (Rev.8 82)

Enhancement for Delay in Payment

1

The Plaintiffs now urge the court to revisit the former

2

award of attorneys fees for Stage I litigation on the basis

3

that the delay in payment is sufficient cause for an

4

adjustment. The court agrees that, generally, it is well

5

settled that an adjustment for delay in payment is

6

appropriate in civil rights cases which span long periods of

7

time. See Missouri v. Jenkins. 109 S. Ct., 2463, 2469 (1989);

8

Norman v. Housing Authority of Montgomery, supra, 836 F. 2d

9

at 1302.

10

In Jenkins, the Supreme Court acknowledged that an

11

enhancement of lodestar was appropriate in civil rights cases

12

when it said:

13

Clearly, compensation received several years

after the services were rendered—as it

14

frequently is in complex civil rights litigation—is not equivalent to the same

15

dollar amount received reasonably promptly as the legal services are performed, as would

16

normally be the case with private billings. We agree, therefore, that an appropriate

adjustment for delay in payment—whether by

17

the application of current rather than

historic hourly rates or otherwise—is within

18

the contemplation of the statute.

19

Missouri v. Jenkins at 2469. [footnote omitted] [emphasis

20

added]. Additionally, prior to the Supreme Court's assertion

21

in Jenkins, the Eleventh Circuit also recognized delay in the

22

receipt of payment as a basis for enhancing an award of

23 attorneys fees.

24

However, the court finds that the situations presented

25 12
26

AO 72 (Rev.8'82)

in this line of cases differs from the facts of the instant

case in the following material ways.
1 First, unlike in Jenkins and Norman, the court in the
2 present case has already calculated and awarded a sum of
3 attorneys fees for the Stage I litigation. In the cases
4 relied upon by the Plaintiffs, the span of litigation was
5 considered to include the time~ from initiation of the lawsuit
6 until the time the award of fees was calculated. The court
7 finds this procedural distinction to be relevant. For Stage

8 I, the time span of the litigation concluded on October 8,

9 1987, when the court issued an award of fees for same.

10 Second, when the court issued an award of fees on October
1 1 8, 1987, all of the parties and the court were well aware that
12 the Plaintiffs would experience a delay in receipt of moneys

13 due. For that reason, the court included a provision for

14 interest to accrue on the money from the date of the award

15

until the time of payment.

16 While the subsequent litigation has, admittedly, lasted

17 longer than even the court anticipated at that time, the court

18

is satisfied that the interest provision adequately

19

compensates the Plaintiffs' counsel for the loss of the use

20

of the money during the delay in payment. In this regard, the

21

court is compelled to point out that had Plaintiffs' counsel

22 taken exception to the delay in payment, they could have

23 petitioned the court for interim attorneys fees. See Missouri

24 v. Jenkins, supra, 109 S. Ct. at 2469 n.6, citing, Texas State

25 13
26

A0 72 (Rev.8/82)

Teachers Assn. v. Garland Independent School District, 109 S.

Ct. 1486 (1989).*

1 Finally, the court finds that the present case is an
2 exception to the general authority authorizing enhancement for

3 delay in payment, because the original 1987 award was granted

4 as a result of a consent decree. The parties had agreed at

5 that time that the award, coupled with the interest provision,

6 was adequate. In the stipulation entered by the parties, the

7 Plaintiffs merely reserved the right to request additional

8 fees for work subsequent to the time covered by that Order.

9 When the subsequent appeal was dismissed, noting that the

10 injunctive relief portion of the case was not yet final, the

1 1 Plaintiffs counsel could have and probably should have

12

petitioned for interim fees.5 The court finds that to permit

13 the Plaintiffs to now withdraw from an agreement to which they

14 willingly stipulated would be patently unfair to the

15

16

4

The Supreme Court has recognized the "availability

17

of interim attorneys fee awards under §1988 when a litigant becomes a prevailing party on one issue in the course of the

18

litigation." .Id. The case at bar clearly falls within this category of cases. While the Plaintiffs had prevailed on the

issue of money damages, the issue of injunctive relief was not 19 resolved until three years later. The Plaintiffs never

petitioned the court for interim fees. 20

21

5 The court does not intend to say that an award for

interim attorneys fees would have necessarily been granted at 22 that time. Nor does the court wish to convey that it is now

inclined to award interim* attorneys fees. The award of same 23 requires an analysis of the facts of each case. Additionally,

the present stature of the case differs from the time after 24 the appeal was dismissed as the district court's work is now

complete. 25

14 26

AO 72 (Rev.8'82)

Defendant.

Accordingly, it is the opinion of this court that the 1
original calculation of attorneys fees, awarded on October 8,
2 1987, must stand, unmodified.
3

4 CALCULATION OF ATTORNEYS FEES: STAGE II
5 GENERAL STANDARD OF REVIEW: REASONABLENESS
6 The determination of reasonable attorney's fees is
7 clearly within the sound discretion of the trial judge.
8 Dowdell, 698 F.2d at 1187. There has been much activity
9 recently in both the Supreme Court and the Eleventh Circuit

10
addressing the appropriate standards for determining

1 1

reasonable attorney's fees. In Norman v. Housing Authority

12

of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988),

13

this circuit recognized that its decisions have "mirrored the

14

evolving standards of the Supreme Court." The Norman decision

15

provides the most recent framework, in this circuit, within

16

which to analyze the reasonableness of an award of attorney's

17

fees.

18

Prior to Norman, the Eleventh Circuit had relied largely

19

upon the twelve factors articulated in Johnson v. Georgia

20

Highway Express. Inc., 488 F.2d 714 (5th Cir. 1974) in

21

determining the appropriateness of an attorney's fee award.

22

The twelve Johnson factors are: (1) the time and JLabor

23 required; (2) the novelty and difficulty of the questions;

24

(3) the skill requisite to perform the legal service properly;

25
15
26

A0 72 (Rev.8'82l

I

¯

(

(4) the preclusion of other employment by the attorney due to

acceptance of the case; (5) the customary fee; (6) whether the
1 fee is fixed or contingent; (7) time limitations imposed by
2 the client or the circumstances; (8) the amount involved and
3 the results obtained; (9) the experience, reputation, and
4 ability of the attorneys; (10) the "undesirability" of the
5 case; (11) the nature and length of the professional
6 relationship with the client; and (12) awards in similar

7 cases. Johnson, 488 F.2d at 717-19.

8 The Norman court began its analysis by determining the
9 reasonable rate. "A reasonable hourly rate is the prevailing
10 market rate in the relevant legal community for similar
1 1 services by lawyers of reasonably comparable skills,

12 experience, and reputation." Norman, 836 F.2d at 1299 (citing

13 Blum v. Stenson. 465 U.S. 886, 895-96 n. 11, 104 S. Ct. 1541,

14 1547 (1984)). The Eleventh Circuit also made it clear that

15

"the applicant bears the burden of producing satisfactory

16

evidence that the requested rate is in line with the

17

prevailing market rates." Norman at 1299 (citing N.A.A.C.P v.

18

City of Evergreen. 812 F.2d 1332 (11th Cir. 1987)).

19

Finally, the Norman court offered several factors and

20

items of evidence which may be considered by the district

21

court when determining the appropriateness of attorney rates.

22

These factors are (1) direct evidence of charges by lawyers

23 under similar circumstances; (2) opinion evidence; and (3)

24 the considerations outlined in Johnson. 488 F.2d 714 (5th Cir.

25 16
26

A 0 72 (Rev.8'82)

1974).

Therefore, this court finds that the general
1 determination of the reasonableness of fees in the instant
2 case is guided by the Eleventh Circuit's teachings in both
3 the Norman and the Johnson cases.
4

5 ANALYSIS
6 The Plaintiffs have proposed the following Lodestar
7 calculation for attorneys fees for Stage II of this case:
8

9

a. Attorneys Fees

10

David M. Lipman

William Amlong

1 1 James Tucker

434.50 hours @ $225 116.3 hours % $200 209.25 hours @ $125

total: $97,762.50 total: $23,260.00 total: $26,156.25

12

Total Lodestar Request

$147,178.75

13

b. Plus Enhancement at %IOO

$147,178.75

14

Total Attorney Fee Request

$294, 357.50

15

In support of this request, the Plaintiffs, have provided

16

the court with affidavits of all three counsel for the

17

Plaintiffs, as well as, inter alia, affidavits and

18

supplemental affidavits of Professor Bruce Rogow and Ms.

19

Elizabeth du Fresne. Although neither Professor Rogow nor Ms.

20

du Fresne stated that they are presently practicing in West

21

Palm Beach, Florida, both of these attorneys currently

22

practice in the general geographical region of the Southern

23

District of Florida.

24

25

26

17

AO 72 ¡Rev.8<82)

Reasonableness of Hourly Rate
1
The Defendant has challenged the reasonableness of the
2
hourly rate requested by Mr. Lipman and Mr. Amlong. In support
3
of this position, the Defendant has filed an affidavit of
4
William Price, an attorney who practices in West Palm Beach.
5
He reported to the court that it is his professional opinion
6
that the standard quoted hourly rate by trial lawyers in Palm
7
Beach County and with the experience of Plaintiff's counsel
8
ranges from $I5O-$2OO per hour on similar litigation.
9
Professor Rogow stated in his supplemental affidavit that
10
it is his opinion that the range of reasonable hourly rate for
1 1
Mr. Lipman is $2OO-$3OO per hour and the reasonable range for

12
Mr. Amlong is $I75-$2OO per hour. Ms. du Fresne stated that

13
she believed that a reasonable hourly rate for Mr. Lipman is

14

between $2OO-$3OO per hour and for Mr. Amlong is between

15

$l75-$225 per hour. Both affidavits state that the affiant

16

has arrived at these ranges only after having considered the

17

reasonable hourly rate within the Southern District of Florida

18

for similar services for an attorney with comparable skills,

19

experience and reputation as Mr. Lipman and Mr. Amlong. Such

20

a consideration is required by the relevant case law.

21

The court has also considered the factors addressed in

22

the affidavits and in the case-law offering guidance on this

23 issue. More specifically, the court notes that as recently

24

as March, 1990, this court was called upon to determine a

25
18
26

AO 72 (Rev.8/82)

(

reasonable hourly rate for Mr. Amlong in order to grant an

award of fees. See Greenberg v. Cohen. Case No. 88-6639. In

1 that case, the court specifically found that

2

having considered all of the evidence

3

submitted on the issue of hourly

rates.. .$150/hour is a reasonable rate for Mr.

4

Amlong's work.

5

Greenberg v. Cohen, Case No. 88-6639, Final Judgment, entered

March. 1990.

6 The court again finds that a fair reading of all of the

7 submissions and evidence regarding the appropriate hourly rate

8 for Mr. Amlong is $150 per hour. Additionally, a reasonable

9

hourly rate for Mr. Lipman, an attorney with more years of

10

experience, is $175 per hour. This reasonable rate is based

1 1 upon the court's finding that these rates fall within the

12

reasonable range charged for attorneys in West Palm Beach,

13

Florida performing similar services and possessing comparable

14

skills, experience and reputation as Mr. Lipman and Mr.

15 Amlong.

16

Reasonableness of Requested Hours

17

The next step in the computation of the lodestar is the

18

ascertainment of reasonable hours. Norman at 1301. The

19 Supreme Court requires fee applicants to exercise "billing

20

judgment." Henslev. 461 U.S. at 434, 103 S. Ct. at 1941. In

21

this regard, the district court is given the discretion to

22 exclude excessive or unnecessary work. Id.

23

Defendants have raised certain objections to the

24 Plaintiffs' calculation of reasonable hours expended.

25 19
26

AO 72 (Rev.8'82)

í

(

Specifically/ the Defendants object to those hours expended

on the initial appeal taken to the Eleventh Circuit and those

1 hours which represent unnecessary duplication of work by more

2 than one attorney.

3 Appellate Work

4 As stated above, 42 U.S.C. §1988 provides for an award

5 of fees only to the prevailing party. The court agrees with

6 the Defendant that the Plaintiffs were not the "prevailing

7 party" on the Eleventh Circuit Appeal.

8 Accordingly, the court will not include Mr. Lipman's

9 212.75 hours allegedly expended on the preparation of the

10 brief and the preparation for oral argument at the Eleventh

1 1 Circuit.6 Specifically, these hours are those claimed from

12

February 9, 1988 through October 3, 1988. Additionally, Mr.

13

Amlonghas claimed 9 hours in February and March, 1988 for

14

appellate work and these will not be included in the lodestar

15

calculation. Upon resolution of the appeal, the appropriate

16

fees and costs of the appeal will, perhaps, be determined and

17

properly assessed against the defeated party.

18

Unnecessary Duplication

19

Upon review of the remaining hours as stated in the

20

21

6 It is also interesting to note here that even if the

court were inclined to award fees for preparation of the

22

appeal, this number of hours appears to be excessive. Even

the Plaintiffs expert, Professor Bruce Rogow, questions the 23 need for so much time to prepare a brief. However, as the

court is not granting an award for appellate preparation, this 24 issue need not be addressed in its entirety at this stage of

the litigation. 25

20 26

A0 72 (Rev. 8/82)

f

(

affidavits of all three attorneys, the court concludes that

there has been no unnecessary duplication of work. As this 1

Circuit has stated, "There is nothing inherently unreasonable 2

about a client having multiple attorneys, and they may all be 3

compensated if they are not unreasonably doing the same work 4

and are being compensated for the distinct contribution of 5

each lawyer." Norman, supra, 836 F.2d at 1302, citing, Johnson 6

v. University College of Alabama in Birmingham, 706 F. 2d 7

1205, 1208 (11th Cir. 1983). 8

Actual Calculation of Lodestar 9

As stated above, the lodestar is determined by 10

multiplication of a reasonable hourly rate times the number

1 1

of hours reasonably expended Norman at 1302. Accordingly,

12

based upon the foregoing findings, the lodestar is as follows:

13

a. Attorneys Fees

14

David M. Lipman

221.75 hours g $175

total: $38,806.25

15

William Amlong

107.3 hours @ $150

total: $16,095.00

James Tucker

209.25 hours § $125

total: $26,156.25

16

Total Lodestar Calculation

$81,057.50

17

18

Enhancement of the Lodestar

19

After the lodestar is determined by multiplication of a

20

reasonable hourly rate times the number of hours reasonably

21

expended, the court must next consider the necessity of an

22

adjustment for results obtained. Norman at 1302. "If the

23

result was excellent, then the court should compensate for all

24

hours reasonably expended". Norman at 1302 (citing Popham v.

25

City of Kennesaw. 820 F.2d 1570, 1578 (11th Cir. 1987). " If

26

21

AO 72 (Rev.8/82)

I

(

the result was partial or limited success, then the lodestar

must be reduced to an amount that is not excessive." Id.

1 (citing Hensley. 461 U.S. at 436-37, 103 S. Ct. at 1941).
2 The Norman court concluded that "if the results obtained were
3 exceptional, then an enhancement of the lodestar might be
4 called for." Norman. supra. (citing Pennsylvania v. Delaware
5 Valley Citizens' Council. 478 U.S. 546, 106 S. Ct. 3088, 3098

6 (1986) (Delaware Valley Citizens' Council I)). The Norman went

7 on to define "exceptional results" as "results that are out

8 of the ordinary, unusual or rare." Norman, supra.

9 Further, enhancement is permissible where the applicant
10
has shown by specific evidence that "the quality of

1 1 representation was superior to that which one could reasonably

12
expect in light of the rates claimed." Norman, supra. (citing

13 Blum v. Stenson. 465 U.S. 886, 899, 104 S. Ct. 1541, 1549

14

(1984)).

15
In the case at bar, the court finds that an enhancement

16 of 50% appropriately reflects the time, effort, skill and risk

17 involved in undertaking this type of a lawsuit. Accordingly,

18 the court finds that the attorneys' fee award in this case

19

20

21

22

23

24

25
22
26

AO 72 (Rev.8'82)

(

(

will be as follows:

a. Attorneys' Fees

1

David M. Lipman

2

William Amlong

James Tucker

221.75 hours § $175 107.3 hours § $150 209.25 hours 6 $125

3 Total Lodestar Calculation

4 b. Plus Enhancement at %5O

5 Total Attorney Fee Award

6

total: $38,806.25 total: $16,095.00 total: $26,156.25
$81,057.50
$40,528.75
..$121,586.25

7

Award of Litigation Expenses

8

The expenses incurred in litigation of this nature are

9

intertwined with a reasonable attorney fee. Missouri v.

10

Jenkins, supra. As this Circuit recognized in Dowdell v. City

1 1 of Apopka. 698 F. 2d 1181, 1190 (11th Cir. 1983), "Reasonable

12

attorneys fees...must include reasonable expenses because

13

attorneys fees and expenses are inseparably intertwined as

14

equally vital components of the costs of litigation."

15

Accordingly, it is the law of this Circuit that all reasonable

16

expenses incurred during litigation, with the exception of

routine office overhead, are recoverable as litigation 17

expenses. .Id. at 1192 [emphasis added]. 18

19

The Defendants have raised objections to several expenses

20

due to the lack of documentation supporting same. The

Plaintiffs have, in response to this objection, filed 21

additional support providing further itemization of these 22
expenses. See Affidavit of Peter Helwig, Exhibit 4 and 23
Affidavit of David M. Lipman, Exhibit 5. Having reviewed 24
these affidavits as well as the previously filed affidavits, 25
23 26

AO 72 (Rev.8'82)

í

the court is satisfied that all litigation expenses have been

properly documented. 1
Travel Expenses 2
Additionally, regarding the Travel Expenses of James A. 3
Tucker and the Florida Rural Legal Services investigator, the 4
court finds that the Defendants objections to same are not 5
well-founded. In Ramos v. Lamm. 713 F.2d 546, 559 (10th Cir.
6 1983), the court approved expenses for travel occurring
7 between the city in which the litigation was conducted and the
8 city in which the prison was located.
9 The court finds that the instant travel expenses
10 constitute non-overhead, "reasonable expenses incurred in case
1 1 preparation" as was anticipated by Dowdell, supra, at 1192.
12 Accordingly, these expenses must be reimbursed under the Civil

13 Rights Attorneys Fees Awards Act, 42 U.S.C. §1988.

14 Paralegal Fees

15

The Supreme Court has recently held that paralegals can

16

either be billed at cost to the attorney or at the prevailing

17 market rate, depending on the practice in the relevant market.

18

Missouri v. Jenkins By Aavei. 109 S. Ct. 2463, 2471 (1989).

19 The Plaintiffs in the present case seek reimbursement for the

20

actual fee paid to each paralegal. See generally Affidavit of

21

David Lipman, Exhibit 5. This is an appropriate method of

22 seeking reimbursement under Missouri.

23

24

25 24
26

A O 72 (Rev.8 82)

(

(

The Plaintiffs have provided an itemized list of dates,

services performed and time expended by paralegals during the 1
course of Stage II of this litigation. The court is satisfied 2
that these expenses are both a recoverable expense and 3
adequately documented. Accordingly, the Defendant's objections 4
to compensation for these services are overruled. 5
Expert Witness Fees 6
The Plaintiffs seek an award for compensation for the 7
actual expert witness fees incurred by them during the course
8 of this litigation. As discussed, supra, the matter of expert
9 witness fees was left unresolved in Stage I of the litigation.

10 The Defendant argues that the witness fee limitation
1 1 contained in 28 U.S.C. §1821 limits the fee to be awarded to
12 a witness to $30 per day. Said statute states that a "witness

13

shall be paid an attendance fee of $30 per day for each day's

14

attendance."

15

The Supreme Court was called upon to address the issue

16

of limitations upon expert witness fees in Crawford Fitting

17

Co. v. J. T. Gibbons, Inc.. 482 U.S. 437 (1987). The parties

18

in Crawford relied upon Fed. R. Civ. P. 54(d) as a basis for

19

recovering expert witness fees and not upon any other statute.

20 The Court determined that Fed. R. Civ. P. 54 (d) did not

21

authorize the district court to grant an award of attorneys

22

fees in excess of the statutory limitation set forth in 28

23 U.S.C. §1821.

24

The issue with which this court is presently faced is

25 25
26

AO 72 (Rev.8/82)

(

distinguished from Crawford in that the basis upon which the

Plaintiffs are seeking compensation for expert witness fees
1 is 42 U.S.C. §1988. While the Crawford Court expressly held
2 that Fed. R. Civ. P. 54(d) did not authorize an award in

3 excess of the statutory limit, the Court was not called upon

4 toƒ and therefore did not address, the potential conflict
5 between 42 ü.S.C. §1988 and 28 U.S.C. §1821.

6 The issue before this court then is one which has not yet

7 been visited by a controlling court: Whether expert fees are

8 recoverable under Section 1988, a statute which was passed to

9 insure that prevailing civil rights plaintiffs would receive

10
a "fully compensatory fee?" See Missouri v. Jenkins, supra.

1 1 The court finds that, in light of Congress' clearly expressed

12

intent in 42 U.S.C. §1988, this issue must be answered in the

13

affirmative.

14

First, the court finds that the experts which were

15

utilized in this case contributed significantly to a just

16

adjudication. As the Seventh Circuit held in Friedrich v. City

17

of Chicago, 888 F.2d 511, 514-15 (7th Cir. 1989), the work of

18

experts contributes as significantly to the work product of

19

lawyers in civil rights litigation as the activities

20 enumerated in Missouri v. Jenkins, supra.

21

In view of the foregoing, the court finds that the expert

22 witness fees for both Stage I and Stage II of the litigation,

23 are "reasonable expenses incurred in case preparation" as was

24 anticipated by the Dowdell court, supra. at 1192 (11th Cir.

25
26
26

A0 72 (Rev.8/821

1983). Accordingly, the court finds that these expenses must

be reimbursed under the Civil Rights Attorneys Fees Awards 1
Act, 42 U.S.C. S1988. 2
Miscellaneous Expenses 3
Finally, the court has reviewed the remaining 4
miscellaneous expenses such as printing, photocopying, 5
telephone calls, courier fees etc. for both Stage I and Stage 6
II of this litigation. The court is satisfied that these
7 particular items are not general overhead, but rather,

8

reasonable costs incurred in the attorneys work-product of

9

this case. As such, they are fully compensable pursuant to

10

42 U.S.C. §1988 and same shall be awarded to the Plaintiff,

1 1 the prevailing party in this case.

12

13

Jn view of all of the foregoing. it is

14

ORDERED and ADJUDGED that the Plaintiffs, as prevailing

15

parties in this litigation, are hereby awarded the following

16

attorneys fees and expenses:

17

18

PREVIOUS AWARD for STAGE I

19

1. Attorneys Fees

20

a. Lipman & Weisberg

b. William R. Amlong

21

Total Attorney Fee Award:

$96,815.25 $29,956.50 $126,771.75

22 2. Litigation Expenses (resolved)

a. Reimbursement to law firm of Lipman

23

and Weisberg

$16,468.11

24

25 27
26

AO 72 (Rev.8 82)

3. Interest

a. interest at 7.8% per annum from October 8, 1987 until

1

the date of payment on both the attorney fee award of

$126,771.75 and the litigation expenses of $16,468.11

2

3

AWARD for STAGE II

4
1. Attorneys' Fees

5

David M. Lipman

6

William Amlong

James Tucker

221.75 hours 8 $175 107.3 hours (j $150 209.25 hours @ $125

7
Total Lodestar Calculation

8
Plus Enhancement at %5O

9
Total Attorney Fee Award

10

total: $38,806.25 total: $16,095.00 total: $26,156.25
$81,057.50
.$40,528 .75
.$121,586.25

1 1 2. Litigation Expenses

12

a. Itemized Stage II (paralegal fees, experts,

travel expenses, miscellaneous)

$39,356.91

13

b. Unresolved Stage I Expenses

$3,279.79

14

Total Litigation Expenses Award

$42,636. 70

15

3. Interest

16

a. Post-judgment interest at 12% per annum from the date of this order until payment.

17

18

Final Summary of Award for Fees and Costs

19

a. Stage I: $143,239.86 @ 7% interest per annum from 10/8/87

through payment.

20

b. Stage II: $164,222.95 § 12% interest per annum from the

21

date of this order through payment.

22

23

24

25
28
26

AO 72 (Rev.8/82)

f

Finally, it is

ORDERED and ADJUDGED that all pending matters in this
1
case have now been addressed and resolved. This order is final
2
in nature, as was required by the Eleventh Circuit Dismissal
3
of the original Appeal. Accordingly, the Defendants are
4
reminded that they have thirty (30) days from the date of this
5
order as of right, pursuant to Rule 4(a) of the Rules of
6
Appellate Procedure, in which to file an appeal if they
7
determine same is appropriate.
8
DONE and ORDERED at West Palm Beach, Florida, this ¿>`C*
9
day of October, 1990.
10

1 1

12

UNITED STATES DISTRICT JUDGE

13
cc:

14

David Lipman, Esq.

William R. Amlomg, Esq.

15

James A. Tucker, Esq.

Michael B. Davis, Esq.

16

Walter M. Mcginnis, Esq.

17

18

19

20

21

22

23

24

25
29
26

AO 72 (Rev.8/82)

 
 INDEX

R-9

Richard Swanson/Direct

3

R-10

Richard Swanson/Direct

96

R-ll

Richard Swanson/Direct

178

R-12

Richard Swanson/Cross-Examination

265

R-13

Richard Swanson/Cross-Examination &

346

Motion for Recusal

420

R-14

Ronald Lee Durrance/Direct

436

Ronald Lee Durrance/Cross-Examination

507

Martin Saunders/Direct

532

Martin Saunders/Cross-Examination

580

R-15

Martin Saunders/Cross-Examination

613

Wayne Epprecht/Direct

624

Wayne Epprecht/Cross-Examination

647

Steven Bronson/Direct

687

R-16

Steven Bronson/Direct

709

Steven Bronson/Cross-Examination

715

Billie Joe Harper/Direct

731

Billie Joe Harper/Cross-Examination

749

Eddie Cobb/Direct

763

Eddie Cobb/Cross-Examination

770

Gregory Zatler/Direct

784

Gregory Zatler/Cross-Examination

799

David Aldred/Direct

801

David Aldred/Cross-Examination

820

Larry Eugene Brown/Direct

834

R-18

Larry Eugene Brown/Cross-Examination

1010

Larry Pryor/Direct

1043

Edwin Johnson/Direct

1065

R-17

Edwin Johnson/Cross-Examination

884

Michael Gordon/Direct

895

Michael Gordon/Cross-Examination

917

Larry Pryor/Return Testimony

922

Anthony LaMarca/Direct

945

Anthony Lamarca/Cross-Examination

978

R-8

Iniation of Proceedings

R-21

Alan Wagshull/Direct

35

R-22

Randall Music/Direct

74

Randall Music/Cross-Examination

117

Randall Music/Redirect

161

James Ferguson/Direct

166

James Ferguson/Cross-Examination

172

Raymond Taylor/Direct

180

Raymond Taylor/Cross-Examination

196

R-23

Ronald Johnson/Direct

216

Ronald Johnson/Cross-Examination

225

Theodis Mitchell/Direct

236

David Brierton/Direct

241

David Brierton/Cross-Examination

285

R-24

Leo Peters/Direct

361

Leo Peters/Cross-Examination

404

R-25

Leo Peters/Cross-Exam. Con't.

481

Raymond Mulally/Direct

495

Raymond Mulally/Cross-Examination

514

Raymond Mulally/Redirect

532

George Lawson/Direct

537

Robert Turner/Direct

555

R-26

Robert Turner/Direct Con't.

589

Robert Turner/Cross-Examination

691

Robert Turner/Redirect

743

3 7-8 10-11 13 14 15 19 20 21
22 23 23 24 26-7

TRIAL TRANSCRIPT - VOLUME O (12/2/85)
Initiation of proceedings
DL raises question of obtaining Dixon file; plaintiff's Ex. 10 contains documents, from GCI referring to investigation for corrupt practices WMM raises issue of appeal filed to Nimkoff's order of 11/25; unable to contact Paine in WPB; a hearing before him was set for 10:15 a.m. Nimkoff asks WMM to inquire into the unsealing of Dixon file
WMM announces delivery of defendant's unilateral pretrial statement to plaintiffs
Afternoon session
DL announces Keith Harris was dismissed as plaintiff in 3d Amended Complaint
DL announces he was "inadvertently" included in prior complaint
DL announces agreement between counsel that defendants need not formally respond to witness and expert interrogatories of 10/28/85. Instead, defendants will advise plaintiffs' counsel of identity and allow taking of a deposition in respect to regular witnesses; no agreement as to experts
WMM announces that defendants will have an expert and name and resume will be provided
If Lipman needs further information in respect to non-expert witneses, parties will agree to deposition
WMM points out identity of witnesses as listed in pretrial
DL announces plaintiffs' supplemental pretrial, adding additional witneses and exhibits and expanding expert witness report
Nimkoff defers admission of plaintiffs' exhibits to allow defendants opportunity to review

61

3 4
5-6
6 7 9 15 16 16 17 17 18 18 19 19 19-20

TRIAL TRANSCRIPT - VOLUME I (R-9)

(12/2/85)

\

RICHARD M. SWANSON/DIRECT

On psychology faculty, University of Florida

Reference to Plaintiff's Exhibit 34

B.A. Psychology, Texas El Paso

M.A. Psychology, Colorado

Ph.D. Psychology, Colorado

J.D.

, Denver

Director of criminal Justice program U of F 1976-80; Assistant Director Alachua County Dept. of Corrections 1975-76

Alachua Co. DOC had capacity of 119

Teaches correctional psychology or law and psychology

White inmates have more difficulty than black inmates in being accepted in most institutions Chairman of commission appointed by Circuit Court in Florida to identify and outline plan to reduce violence at FSP in Starke
Court accepted all recommendations of FSP report except that for free tobacco

Appointed to committee in August 1982; submitted a plan in October; reconvened in February to determine compliance

Relatively well acquainted with Florida prison system

Appointed to Governor's Council for Research in Criminal Justice in Florida

Professional member, American Correctional Association

His initial contact regarding case was in early September

Met with DL on 10/4/85 to learn of allegations and institution involved

Initially indicated that conditions alleged were difficult to control in a dormitory situation
Some facilities have dormitories, some have multiple inmate cells such as at Union, some have single inmate cells, some have single inmate cells in a pod

20

Dormitory housing common in 30's and 4O's and still used today, but usually

for minimum security inmates

21

His investigative approach is to evaluate an institution as a clinical

psychologist might a person; attempts to obtain information from several

different avenues. If there are inherent biases in one area then alternate

activities would enable him to obtain the true facts

21

Terms his technique of investigation a multi-variable approach

21

First source: internal documents generated by institution (incident reports, use

of force reports, departmental policies, institutional procedures, superintendent

reports, inmate file jackets)

22

There are about 25 major correctional institutions in Florida

22

All institutions are required to maintain incident reports which record any

exceptional occurrence

23

He received incident reports from 1/82 - 12/84 for GCI

23

Use of force reports are also required; they record use of force on an inmate;

procedure requires filing such report whenever force is used on inmate and

taking inmate to medical department for examination

24

He received use of force reports from 1/82 - 12/84 for GCI

24

Departmental policies are developed in Tallahassee; institutional policies are

developed in each institution; institutional policies must vary from one

institution to another

25

GCI is in Region 4 and reports to the regional director through superintendent's

reports

26

Florida DOC is second or third largest in country

26

Superintendent's reports summarize various conditions at the institution -–

inmate population, staff turnover, assaults; they are filed monthly

28

He requested file jackets for inmates who were indicated as witnesses or

plaintiffs:

Tony LaMarca Larry Pryor Billy Joe Harper Eddie Cobb Wayne Epprecht David Aldred Ron Durrance Andrew Jackson Willie Dock

Steve Bronson Martin Saunders Michael Gordon Greg Zeltler Edwin Johnson Michael Lane James Roper James Kenner Larry Brown

28 28-30
30 30 31 31 32 33 34
35 35
36 36-37 37 37

Corrections are a difficult game at best

Second source: external reports or evaluations taken during the time in question — 1980 to present: Palm Beach Grand Jury presentment 1/30/80; Management review of GCI 8/26-29/80; Prison inspection reports 9/22/84, 10/4/82, 10/18/82,
9/19-21/83, 7/29-31/85

Prison inspectors report to Inspector General, David Brierton

GCI inspector is Leo Peters; his responsibility is to the superintendent but he can be made responsible to Inspector General

Prison inspectors reports are generated by Inspector General's office

Additional external reports: Lt. Barrett, Clarence Dixon

Third source: inmate interviews

Fourth source: staff interviews

Inmate interviews:

Larry Pryor 10/18/85 at FSP
Eddie Cobb 10/18/85 at Union Anthony LaMarca 10/18/85 at Union David Aldred 11/4/85 at Lake Steven Bronson 11/4/85 at Polk Wayne Epprecht 11/4/85 at Avon Park Ronald Durrance 11/5/85 at Glades Martin Saunders 11/5/85 at Fla. State Hospital Michael Gordon 11/6/85 at DL's office Larry Brown 12/1/85 at Dade County jail
Interviews lasted 40 min. to 2 hours each

Staff interviews:

Randall Music Leo Peters

11/5/85 11/5/85

GCI is second oldest correctional institution in Florida; built in 1932 as a work farm with open dormitory

GCI was originally all black; later integrated

GCI located in Belle Glade in farming area

During time period in issue, GCI was predominantly black with minority of white and hispanics; 60-70% black

38 38 38 38-39 40 43-44
46 46
47
47
48 49

Turner was superintendent until August 1984
Ron Jones was superintendent from August 1984 to October 1984
Randall Music was superintendent after October 1984
Opinion: general conditions were unacceptable
Opinion sought: whether conditions met generally accepted correctional standards
Objection to Swansons' testimony based on hearsay: in respect to statements of Peters and Music as declarations against interest, Rule 804 requires unavailability; in respect to statements of prisoners, experts may not rely upon statements of interested persons under Rule 703
Objections over-ruled
His approach was not to trust any specific report; he was looking for a concensus from divergent sources of information: "multi-method approach of discerning discriminate and converging validity"
He required multiple source convergence for any single bit of information used in forming opinions
General or overall opinion: general conditions in terms of a human institution managing human beings were allowed to deteriorate into those that are unacceptable and intolerable by any standard
There are specific generic standards promulgated by American Correctional Association; he did not utilize specific enumerated ACA standards by those within same generic level of evaluation.
Documentary evidence produces same conclusion as he obtained from all 4 sources
Eleven specific findings:
•s 1) GCI from 1980-83 was not under control of formal authority structure of administration and staff; control was exercised by staff through inmate authority structure; Turner did not try to stop spread of this malignancy;
2) Little or no effort taken to control contraband and illicit activity drugs, alcohol, weapons
3) Presence of contraband was common knowledge but accepted as unavoidable
4) Day to day supervision left to those below superintendent; Turner rarely involved self beyond bureaucratic administration of institution

5) Morale at GCI was extraordinarily low; no effort made to attract and keep good officers, while those in flagrant violation of proper conduct were tolerated
6) Sexual assaults and extortion of white inmates by black inmates was commonplace and encouraged by some officers
7) While some of these difficulties are partially attributable to matters beyond superintendent's control, Turner did not take even the most redimentary procedures to frustrate illicit activities

8) Inmate victimizers or wolves were not only tolerated and not transferred to other more controlling institutions, but were allowed to recruit others

9) Inmate victims were afforded very little protection and not allowed to transfer without extreme difficulty and were accepted back at GCI after transfer

10) Inmate victims in protective confinement were in extremely punitive environment with no real assurance of protection

11) Fact that this corruption was controllable is documented by actions and successes of Jones and Music

53

In interviewing inmates, he cannot accept 100% of what he hears but must find

convergence from a cross-source

54

Inmates he interviewed were from a heterogeneous background

55-61 Prvor interview: one hour duration; at GCI 1/82-11/84; also at Appalachicola, Avon Park, LaBelle; life sentence, 1st degree murder; his impression was GCI was wide open in respect to drugs and liquor; inmates in collusion with guards; showers at end of each dormitory outside range of observation of officers in wicket; confinement at first had one row of cells for AC, PC and DC; up to 4 men per cell; administrative confinement - confinement pending determination of charges; protective confinement- confinement for protection of inmate; disciplinary confinement - confinement after conviction of charges; when he left GCI there were 3 rows of confinement cells, 15 cells per row; black inmates ran GCI; Pryor is black; more blacks than whites and Cubans together; blacks pressure whites by sexual assaults or threats of sexual assault; to get PC inmate must ask for it and "snitch"; he says GCI could be cleaned up with more dormitory officers, especially in TV room; at GCI inmates more likely to cuss out officers; staff brought in dope; Pryor was set up as enforcer by a Lt.; some staff were always ready to use force with inmates including Ass't. Superintendent Arline and Lt. Barrett; rapes could occur in library, weight room or dorm; in dorm at shift change; Turner not on compound much; operations run by captain and lieutenants.

61

Superintendents office is outside security perimeter

62-64 Cobb interview: 38 minutes; went to GCI in fall of 82; previously at DeSoto and RMC; transferred from GCI to UCI 3/84; he was aggressive with other inmates; describes GCI as a work camp; Arline ran institution; inmates received little assistance from classification; inmates would bribe guard if they wanted a boy; GCI 60% black, 10% white, 30% Cuban; blacks were aggressors; Cobb is black; his strategy was to be friendly, send a home boy over to threaten, then step in and rescue; majority of white homosexuals are forced; Cobb denied having a boy at GCI
64-67 LaMarca interview: 20 minutes; sent to GCI from ACI, previously at RMC; 2 officers in each dorm only evening shift (4-12) consistently had full complement; transients in B dorm (those at GCI only temporarily); other housing determined by job assignments except E dorm, honor dorm; A & B dorms were worst; 80% of population was black; LaMarca is white; GCI a labor camp with vocational programs, AA, church, psychology dept.; GCI was wide open; staff ignored problem of white inmates; after 45 days he was pressured; reported this to major, It. and sgt. but no action taken; complained of harassment to classification Officer Knight and dorm officer and was taken off kitchen job which he liked; requested a transfer which was denied; beaten by black inmate after visitation, later made friends with a black and was left alone; assigned to DOT crew, attempted escape; high staff turnover; officers who helped inmates were harassed; always in fear of rape; reports hearing screaming from prisoner in PC while he was in DC, inmate was Green.
68-70 Harper interview: 1 hr. 6 min.; at GCI for 17 mos. from 1982-1983; also at Avon Park, Polk, UCI, Lake, Tomaka and Marion; Andrew Jackson, black inmate, ran extortion ring; he was raped 2 weeks after arrival in A dorm; raped by Levy Fisher, black, after midnight; incident reported to Turner, who spoke with Harper and Fisher and called Harper a liar; Harper still has physical and psychological problems, has not been in open population since.
70-76 Aldred interview: 2 hrs. 10 min.; transferred to GCI 7/20/84 from Polk where he had been in protective custody from 5/84-7/84; previously at RMC; first impression of GCI was that it was a ghetto; assigned to B dorm; no problems first night, pressured by black named Captain second night; friend told him he would need a knife, most inmates had knives; grass readily available; Cuban inmate came from visitation with half pound of dope under shirt; inmates smoked grass in front of guards; guards do paperwork at GCI, inmates run compound; GCI 80% black; inmates enclosed their bunks so there was no visual access; bunks arranged so no visual access to showers; inmates able to enter other dorms without problems; on second night he took shower after count time at 9:00 p.m.; 3-4 inmates entered shower, held him and and raped him; he could not see who it was but they were black; he was bloody afterward; he went to black dorm guard 1/2 hr. later who said he would take care of it; nothing happened so he told another officer at midnight who told him same thing; still no action taken by next morning; spoke to Lt. who told him to handle own problems; thinks staff believed him but did not care; taped knife to hand and put shirt over it not stopped by guard; could not find anything about rape; two days later he was sent to RMC for oral surgery; told Dr. Gonzalez at RMC who said he could do nothing; sliced his wrist and put in mental ward; sent back to GCI where he threatened escape and was put in PC; pressured by inmates through confinement building windows; transferred to Lake 7 days later; Aldred White.

76-82 Bronson interview: a/k/a Nancy Sue; 1 hr. 5 min.; served in Lake, Polk, FSP, UCI, Avon Park, GCI; at GCI late '81-Aug. 82; first impression of GCI - filthy and overcrowded; 60% black; blacks ran place; blacks pressured other inmates; pressured after 2d or 3d day; ignored it at first then black inmate forced him to masturbate him in movie trailer; no officers were present; blacks demanded money or that he work as prostitute; one had stable of two other white inmate prostitutes, one named Jay, other Mike; guards were scared of inmates, many of whom carried knives; there were 3 shakedowns while he was at GCI; dope readily available through staff; blacks in D dorm surrounded white inmate, took him to shower and raped him; guards in wicket ignored it; never saw kid after that; knew of other rapes by hearsay; he was afraid to ask for PC; told by black inmate that guards used inmate prostitutes; after Mike left, black inmate - Mark demanded that Bronson work for him; when he refused, he was raped with baseball bat in recreation yard; given protective confinement; no screens on outside windows; allowed out of cell 5 min. every other day; held in PC from 7/4-8/2; could not use law library or get counselling; subsequently transferred to FSP; beds packed close together in dorm; rarely saw Turner in compound; Bronson was white.
82-85 Wayne Epprecht: 35 min.; served at Brevard, Avon Park and GCI; GCI a ghetto, 2-1 black; living conditions crowded; got sick on food 3 times; cats allowed to run around institution; black inmates ran GCI; too few staff and too inexperienced; saw Turner twice; blacks and hispanics stuck together; there were robberies and dope; rapes occurred in dorm; dorms too crowded with bunks; visibility reduced; robbed of $30 after visitation - hit on head with pipe.
85 Durrance interview: at GCI 10/83 - 7/84, transferred to Polk 7/84 to 5/85; Hendry 5/85 - 9/85; retransferred to GCI; also at DeSoto, FSP, Cross City, Panama City; loner at GCI; first pressured in 3/84; he was in B dorm; he would warn transients to watch for blacks; pulled into shower one night after count by black inmate, J.R. who had knife; 5 blacks held him, 3 raped him for 20 min.; so frightened he did not scream; 3 days later he was pressured again; 2 weeks later he reported rape to Lt. Slater; assigned to PC on 4/6/84; Durrance told Lt. Barrett he was in confinement because he owed money.

TRIAL TRANSCRIPT - VOLUME II (R-10)

(12/3/85)

MJ,

96-100 Saunders interview:

; white male; previously at DeSoto, 2

yrs., Cross City, 1 yr.; at GCI 2-12/83, transferred to Avon Park; GCI

predominantly black; only goal of staff was to prevent escapes; violence and

contraband ok; always on verge of a riot; in A dorm when 2 blacks pressured

him for money or sex, gave them 10 dollars each time; after 2 weeks he stopped

payment and they threatened him; he requested transfer from A dorm and was

shifted to other side; there was a trailer where hard core sex films were shown;

one day when he was in classification area, the two inmates forced him into

bathroom and raped him for 30 minutes; one was Pryor; he did not scream for

fear of being cut; hour later he attacked Pryor in TV room and officers broke

up fight; Saunders then told Lt. Pipka he was raped but Pipka did not believe

him and put him in detention. Other blacks later pressured him. To get

transfer from A dorm to C dorm he had to give up dining room assignment and

work in cane fields. Transferred to Avon Park in 12/83; from 6/10-13/85 he

was a transient at GCI on transfer to sex offender program at FS Hospital;

condition had improved - he was propositioned but not forced.

101

File of Larry Pryor rampant with indications of disciplinary problems,

assaultive behavior; rape of Saunders not mentioned in file

102 Gordon interview: 1 1/2 hrs.; white inmate; at Broward County jail 4 weeks, transferred to Lake Butler RMC then BTU for 2 1/2 months; GCI was his first permanent assignment; first impression was that GCI smelled like a garbage dump; assigned to B dorm; constantly in fear of possessions and person; two Sgts. - Nappi and Bradley were mugged in compound when carrying in cash; daily stabbings; drugs and liquor easily available; two revolvers found in compound; he was transferred from houseman to cane fields after several months; he witnessed exchange of money between Dixon and inmates; Dixon would supply yeast for buck or wine; advised Lt. Peters of his problems; Peters offered PC but Gordon did not want PC; he witnessed many gang rapes in B dorm, especially in showers; rookie officers given control of B dorm; described incident when Lt. Barrett beat inmates after disturbance at institution; he reported three assaults to staff but would not name names; 85% black, 10%
• white, 5% Cuban; never went to movie trailer; wife was approached by Dixon to pay for protection of husband; he advised Lt. Peters who said he was aware of problem; food was bad; Turner was rarely in compound — 3 times in nine months; transferred to Avon Park

112

A & D dorms have about 20 rows of double bunks on each side, 200 inmates

total

113

B & C dorms have 70-80 inmates each

113 Brown interview: 1 hr.; currently at GCI; interviewed at Dade County Jail; assigned to GCI 6/10/85; all inmates seemed black; at 2:00 a.m. of his first night, 5 inmates surrounded his bed — top bunk — and forced him with knives to lie face down on lower bunk, took his pants down and took turns raping him; he thinks guard was in building but he was afraid to scream because of knives; rape lasted an hour; he went to bathroom and then back to his bunk where black inmates

surrounding bunk made jokes; told an officer next day who did not respond; several days later Lt. Minor sent for him and heard he was providing sex to inmates; brown described incident and was assigned to PC; transferred to Hendry after 3 weeks; inmates from GCI were transferred and talked about what happened; he requested PC on 8/9/85; on 9/27/85 he was re-transferred to GCI; AC, PC and DC are never mixed in same cell; Music interviewed him about rape;

120

Inmates had not talked among selves prior to interview; most did not know one

another

120

He was impressed by degree of convergence on certain themes

121

First theme - wide open institution for contraband

Second theme - degree to which it was open

Third theme - staff involvement in illicit activities

Fourth theme - domination of GCI by blacks who were 85-95% of population

122

Admits that percentages given by inmates of black population was a distortion

122

Fifth theme - rapes and assaults of whites by blacks common

Sixth theme - guards concerned with preventing escapes and paperwork but

little else; poor quality

Seventh theme - Turner was not visible

123

Does not know if Turner knew of corruption or avoided being involved

123

Eighth theme - protective confinement difficult to achieve and conditions were

poor

124

Last theme - no staff initiative to correct problems

124-5

There seemed to have been a classification breakdown; reclassification needed to avoid mixing vulnerable inmates with assaultive ones; transfers needed

126

Interviewed Music and Peters at GCI; also spoke informally with prison

psychologist and psychiatrist, Dr. Lane and Dr. Medina, on November 5, 1985

126

Music had been superintendent a little over one year

127-132 Music interview: 1 hr. ; A & D dorms were largest; B & C smaller; E dorm was honor dorm; 30% of the COs had been in corrections less than 12 months; starting pay for COs was $15,600; not uncommon in past for staff to work a 16 hour shift; this is no longer the case; single bunked D dorm to gain better visual access; middle row as single bunked; plans this for all dorms; replacing saddle lockers with foot lockers; GCI functioned within system as repository for inmates other units rejected; if things get out of hand, then from time to time superintendent can arrange transfers out; in rare case superintendent can refuse to accept an inmate; he can arrange swaps; in first 6 months he arranged 5 negative transfers a month; established policy or regular shakedowns - 15 to 20 a year; confinement cells are segregated.

9

132-136 Peters interview: 1 hr.; responsible to superintendent; can be transferred to inspector general's staff; GCI originally an all-black work camp; subsequently integrated; changes have been made since Turner which have resulted in lower incident rates; Jones shipped 40-45 management problems from GCI to FSP; Turner did not seem to view these inmates as problems; inmate grievance procedure inmates report to dorm guard who reports to shift supervisor who requires documentation; request for PC is granted if there is evidence of a problem; once in PC an inmate receives classification review in 30 days; team recommends inmate remain in PC or leaves; firearm training changes — officer cannot check out weapon unless he has been qualified on it.

137 Dr. Lane interview: psychologists position was vacant during much of Turner's administration; new pass system had been implemented; no pass system under Turner;

137

Infirmary was impressive

138

One day of inspection there were 874 inmates

138

Each dorm has two day rooms; one with TV, one with game and card tables;

restricted visibility from wicker into these rooms; structurally this is not easy

to correct

138-9

Visibility in D dorm back to shower area is not impeded although one cannot see into showers

139

Institution is being rehabilitated

140

Redwood fence 18 inches from windows of confinement building - windows

open onto hallway across from cells — did not prevent inmates from getting up

to window by crawling under fence and shouting threats at detainees

140-1

Music put razor wire under fence to prevent this; this impressed him

141

Detention facility clean and in good condition

141-2

Due to manpower shortage only one tower was manned leading to blind spots in

recreation yard

142

If both were manned there would still be blind spots, but not as many

144

Plaintiff's Ex. 40 — drawing of prison superintendent's office

146

Plaintiff's Ex. 41 — drawing of dorm

147

Plaintiff's Ex. 42 - confinement area

148-9 149-150

He reviewed entire files on each inmate
He did not remove anything relevant from files in assembling plaintiff's file exhibits 13-30

10

150 150-1 151 155
156
156-9 160 161 161

Rapes that were discussed with him were not documented in file Acknowledges that rape is under-reported due to reluctance on part of victim Rape of male in an institution even less likely to be reported Aldred file: documents his suicide attempt Bronson file: documents his history of sex offenses

Cobb file: documents that he was considered a management problem and his date of transfer

Dock file: indicates he was a management problem and was transferred 9/6/84

Durrance file:

incident and transfer in file coincided with interview

Epprecht file: transfer incidents coincide with interview

Gordon file: transfer, medical records and incident reports coincide with interview Harper file: movements from institution to institution verified Jackson file: indicated he was a management problem Johnson file: Kinner file: LaMarca file: charges, transfers coincide with interview

Lane file: serious management problem
Pryor file: report of 1/21/83 of Parole Commission indicates a pattern of assaultive, violent behavior; possession of drugs; report of 11/15/83 a recommendation for transfer due to strong-arm tactics with Kinner; approval by Turner; computer sheet indicates request cancelled; transferred on Music's recommendation 11/12/84

Roper file: management problem
Saunders file: participation in rehab, program and temporary return to GCI coincide

Zatler file:

Incident reports: 33)

review 2 years of incident reports - about 3 feet thick (Ex

11

161-2
162 162-3 163
165
166-167 170 171

Incident reports record minutiae; every possible event would generate multiple copies

Willing to testify that things are documented in the incident report files at GCI

Lack of report of rapes; could find no reports in two year period; copies,
however, were difficult to read Impression from incident reports: great deal of paper generated; staff disorganized and loses guns; some procedures which are adopted are not followed - leading to reprimands; abusive language used by inmates who are written up for it; from 1/80 to 12/83 there appears some disorganization

Use of force reports: GCI religiously followed DOT procedures in regard to use of force - inmate always taken to infirmary, examined and treated and documented "remarkable example of bureaucracy taking this very seriously"

Plaintiff's Ex. 2 - DOC policies; Plaintiff's Ex. 3 - GCI policies

Did not find certificates of completion of orientation in inmate files as required by GCI rules signed by Turner

A/2'i/19

GCI rule provides for placing of PC inmates into administrative

confinement; this would allow some aggressive inmates to mingle with victims

12

178 182 183 184 189 190 191
192 196
197
198-199 199

TRIAL TRANSCRIPT - VOLUME III ( R - l l )

(12/3/85)

£

Under Jones, GCI rules provide for segregation of inmates in PC from inmates in AC; Jones also provides for canteen privileges in PC and requires shift supervisor to advise of any incidents in confinement
Ex. 31 - Superintendent's monthly reports required by DOC policy; reports on variety of factors such as staff turnover, overtime work, assaults
Ex. 39 - Summary of data from Superintendent's reports
Ex. 39 prepared by Swanson's assistant
Four sexual assaults reported from 1980-83; five reported in 84 when superintendents changed
Other sources of data indicate a reduction in sexual assaults in latter part of 1984 thus he concludes that the increase in numbers reported in 84 reflect increase in monitoring
Review of superintendents' reports leads to conclusion that attention paid to internal documents is impressive; there is a great deal of investigation and documentation evidenced by reports but not a concern in actual operation; things that could have been done were not as evidenced by changes under Music; institution very bureaucratic under Turner
Indications are that GCI only attempted to meet minimum constitutional guarantees rather than exceeding them
All inmate informants agreed that GCI was not under control of formal authority from 1980-83; staff informants support this by comments on subsequent negative transfers and shakedowns; facility inspection showed improved conditions; internal documents showed an uneducated staff, large number of assaults on staff and vice versa; reluctance of inmates to report rape
All inmates agree there was little or no control of contraband; staff interviews did not agree but did reveal simple cost free changes that Turner could have used; inspection showed changes to make illicit activity more difficult; internal documents showed a concern with paperwork
All inmates agreed that contraband was accepted by the institution as an unavoidable situation; no information on this from staff; physical changes in facility made to discourage this; no internal documents found on shakedown
Most inmates reported that Turner was rarely in compound; little information on this from staff; internal documents rarely show Turner was directly involved in operations except to review documents

13

200 200 201 *2O2 203 203 204 205
206 211
213-214

Inmates viewed staff as just trying to get through the day; staff reported adverse effects of long overtime; internal documents show laxity and confusion in following procedures

Inmates all concurred that whites were victims of sexual assaults and extortion by blacks; did not address this with staff; internal documents were in total agreement in reporting few assaults

Inmates all agreed that cost free solutions to problems were not taken; staff interviews supported conclusion that there were improvements that could be made; no evidence of shakedowns under Turner

Failure to transfer out victimizers shown by Pryor's file and staff reports of subsequent negative transfers; documents show few transfers during Turner administration

Inmates all agreed that there was little protection of victims; supported by staff reported changes in AC, PC, DC; internal documents show trouble in confinement cells during Turner's period

Inmates agreed that PC was very punitive; staff reported changes in confinement; visit showed changes in confinement; internal documents show trouble in confinement

One inmate reports improvement in controlling corruption after Turner; staff reported improved climate and reduced incidents

External investigation reports:

1) 2) 3) 11/4/82 4) 5)

Ex. 9 Barrett investigation Ex. 10 Dixon investigation Prison inspector's report on confinement cells on 9/11/82 and
Grand Jury presentment 1/30/80 Inspection Reports 9/19-21/83

Barrett investigation - mentioned by Gordon and corroborated by report; showed extreme violation of standards by Barrett; Barrett was in charge of security

Conclusions re: Barrett incident: gross errors in judgment made by Barrett who brought gun into perimeter, called out inmates and beat them. Situation so gross that immediate action should have been taken; action was taken only after delay; interview of inmate by Turner shows Turner not surprised at presence of alcohol at GCI; Turner refers to Barrett situation as serious but does not express outrage

Barrett investigation performed by Tallahassee investigators summoned by
Turner; external investigation was appropriate; investigation was prompt and appropriate -– very quick (3 days)

14

216-217
217-218 220 223 226 *226-7 228-9
230 231 236-7 237
239 240 241
`r 242

Barrett was disciplined at conclusion of investigation; Turner should not have just suspended him and sent him home to take a rest but should have taken away his gun and badge
DOC has policy which permits immediate suspension
Dixon report shows there was collusion of staff in supplying contraband
Memo in file shows Dixon had used extortion in a prior job
Prison inspector's report 9/22/82 shows inadequate ventilation and lighting in confinement areas; conditions portrayed are unacceptable
Nimkoff advises of his trip to GCI, view of confinement cells in summer or fall of 1982 and fact that he formed "certain vivid impressions" of them
Grand Jury report - inmates had access to meat lockers; laxity of personnel mentioned; jury did not see evidence of contraband but heard it was available and recommended against inmate access to cash
Turner did not implement recommendations of grand jury report in respect to cash availability
Many institutions make cash contraband
Grand Jury also recommended that inmates not be confined in PC for extended period
Grand jury report also mentions problems with hiring due to socioeconomic factors; mentions problems due to staff vacancies. Recommends developing a transportation system and trailer park
Employee survey showed feeling of insufficient number of staff
Grand jury report put Turner on notice of contraband problems, recruitment problems
Inspection Report of 9/19-21/83 refers to age of institution and laxity or disregard in following established procedures; preventive maintenance needed; acknowledges budgetary constraints for painting or replacement but recommends better sanitation procedures by inmates and staff in need of improvement in personal appearance. Shotguns were found to be rusty and tools were on ground near gate
Out of total population of 775, 21 were in PC; 20 in PC were white, one was black; 366 inmates in general population were white, 409 were black; 397 whites in total population, 426 blacks

15

244
247 250 252-253 255-256
257
260-1

Asked for opinion regarding improvements on injunctive issue; replies that he has difficulty in making assessment based upon a one day visit to the institution and talking to 2 staff members. Confident that Glades is not an ideal institution and never will be. Feels that present administration has moved to identify and correct problems
Lipman asks that issue of injunctive relief be deferred and further remedial
hearings be held to address issue; defers to Dr. Swanson
Nimkoff temporarily adjourns issues on present condition
Courts inclination is to defer question of present conditions Swanson acknowledges that entire system is crowded and is essentially reacting to loudest complaints. Admits that Grand Jury report does not discuss homosexual rape but says that a sophisticated reader could read between lines in respect to imbalance in PC and feel there is a sexual assault problem. No other external report concluded that sexual assaults were a problem
Nimkoff asks Swanson to assume he and his staff visited GCI in summer/fall of 1982, took LaMarca's testimony where LaMarca claimed he had been disciplined for fighting to defend self from homosexual assaults; LaMarca indicated to Nimkoff concern for others who might be assaulted and Nimkoff heard from LaMarca as an amicus curiae; Nimkoff told Belitsky that the State should be concerned about substance of LaMarca's claims; Belitsky indicated that it would be investigated, but it developed that it was not; under this assumption, Nimkoff asks Swanson if there was any evidence that Turner or anyone had conducted an investigation of LaMarca's claims
Swanson answers that he sees no evidence of any investigation

16

265 265
267 268-269 269
270 *27O 271 271-2 272 273
¢- 273-4 *274 275 *275
276 276

TRIAL TRANSCRIPT - VOLUME IV (R-12) (12/3/85,
SWANSON/CROSS-EXAMINATION
Swanson concluded from the larger number of rapes indicated on the
superintendent's report for 1984 that there was more reporting of rapes
Accuracy of Swanson's opinion based on accuracy of his data
One report was made in 3/84 when Turner was superintendent, two in November after he left; this was not 5 but 3 total Admits that there was not a dramatic increase in reporting and admits that it would be an error to assume that there was a greater inclination to report rapes after Turner based on that data
Admits repeated evidence in superintendent's reports of manpower shortages and problems created by shortages; did not include this information in Ex. 31
Clear that Turner used monthly reports to communicate the manpower shortage and consequences to his superiors
Turner clearly tried to deal with "hard matters of funding positions"; he should have pursued other options such as negative transfers
Turner also communicated inmate difficulties and shortage of space in his monthly reports
These problems are very difficult for a superintendent to deal with, but he did try to do so - complained of problems, requested funding
Turner used other means to convey these problems to the DOC - budgetary line; legislative committee appearances; requesting special review of the facility and staffing
Major problem identified in all external reports was lack of funding
Staff shortages varied between '80 and '84; shortages reduced considerably from '80 to '84, shortfall reduced to 1/4
Manpower situation improvement should have resulted in improvement in conditions at GCI
Another major deficiency identified in external reports was manpower
shortage, which was itself a major factor in other problems
The manpower situation improved considerably under Turner
Florida has one of highest training requirements for correctional officers in nation - 360 hours; GCI officers trained at outside training center
17

277 278 279 281-2
284 284-5 286 287 287-8 288 289 290-1 292
293-4 294 *295 295 *296 297

His standards reflect spirit of those of the American Correctional Association
Admits GCI was accredited during Turner's administration
Not surprised if GCI had second highest accreditation in state
Protocol followed in studies at correctional institution is to interview a small group of inmates to develop general concepts and then to question broad section of population regarding these concepts; sample from which data is drawn is important
Sample used in this case was a "sample of convenience" of people involved in the litigation. Consequently he was very concerned about biases Consequently each datum received from inmate interviews was subjected to cross-proof from other sources
Racial imbalance identified by inmates was one of problems Turner should have addressed
Important to check inmate perception as to racial balance against other sources
Cross-checked racial balance by viewing inspection reports
Florida prison system 51% black
Ratio 9/19/83 53%-47% general population 51-49 total population
Wild exaggeration by informants in respect to some data; leads other information to be questioned Access to confinement area through plank wall was identified as a major improvement instituted after Turner; also transfer out of trouble-makers and victims; victims would be those in PC
Admits there were transfers during Turner's administration, but the length of time to transfer was greater
Only recalls Pryor as an inmate whose transfer was revoked; there may have been others
Three revocations do not establish a pattern
Would not be surprised to find revoked transfers at any institution; such could be quite valid; thus he can draw no legitimate conclusions from that data
During most of Turner's administration most Fla. state correctional facilities were at or over the court appointed caps
It would be necessary to find another institution which could accept a transfer
18

297 298
299 301
302 303 303
304 305 306 307 308 308 309 311 312 312 313 314-5
315

Assumes that there can be swaps of inmates
Pi's. Ex. 13 - Aldred's records show swap sheet in Turner's administration when 7 inmates were swapped out of GCI; 3 aggressors and 4 PC inmates
Did not make effort to determine if there were other swaps in Turner's administration except in two staff interviews
Was not able to review all the paperwork to determine how many swap arrangements occurred with Turner
Harper's file contains a swap in Turner's period involving a dozen inmates
Did not mean to imply that transfers did not take place in Turner's period; they clearly did occur
Only noted two instances— Pryor and another — where he felt transfer should have been made earlier
During Turner's period, total number of inmates were in the thousands; possibly hundreds were wolves; two would not be a fair sample
Important in assessing reliability of inmate's relation of events to know if he had prior history of paranoia or history of sexual crimes
Inmates tend not to assign sexual fear as reason for seeking PC
Harper sought PC on several occasions because he had been an informant
Did not note if Harper had prior record of claiming sexual assaults
Did not know Harper claimed assault at Alachua County Jail
Sexual assaults are not uncommon even in prisons; it is very difficult to eliminate
Did not make effort to determine reliability of every criticism by inmates of GCI; only those where there was convergence
His method, taken in extreme haste, was not subtle and only focused on extremes
Advises caution in accepting truth of any individual inmate's complaint
His technique was a crude one
All of his inmate informants indicated difficulty in getting PC for a rape complaint or reluctance in seeking PC because of conditions All informants did not indicate personal difficulty in getting PC; they were only relating general observations
19

315-6 318 318-319 319 320-322 323
323-4 324-5
325-6 326 327 328 328
329 329 329 330 330 331

No convergence of information from multi-sources on difficulty in gaining PC; this was based solely on inmate interviews
Photographs of Dorm B do not show bunks providing an obstruction to view from wicket to shower area
Cannot see shower itself because of wall with opaque window
Views photos of A dorm
Beds obscure vision from wicket in A dorm but even when viewed between rows of beds, showers are not seen because wall blocks view of shower Guard could not see into shower itself although he could see commerce into and
out of shower
Def.'s Ex. 1, A, B & C; Def.'s Ex. 2, A, B & C: six photographs of Dorm A & B
Def.'s Ex. 1 is dorm B or C; A is distance view; B is mid view and C is close
up of shower
Def.'s Ex. 2 is dorm A
Contraband is an item not authorized to be in inmate possession Has impression standard procedures were taken to control contraband at GCI but at a non-substantial level; bases this on Grand Jury report and inmate interviews Also relies on Dixon report which related to only one guard
Dixon report indicates Turner initiated an investigation into Dixon and, then, after the investigation failed to uncover violations, still ordered a continuing investigation
This was consistent with the actions of a conscientious superintendent
Not familiar with requirements in Florida for dismissal or suspension of state employees
Turner's reactions to Barrett were "oddly mild"
Not necessary for Turner to suspend Barrett, just see that he had no contact with inmates insecurity perimeter
Turner did this
Assumes that Dixon case was example of person prosecuted for bringing contraband into GCI

20

*332 333
334 334-5 335 336

Contraband can enter an institution through a number of avenues: visitation, throwing item over fence, through staff, prisoners working outside perimeter, constructed within the prison
Institution like GCI which has DOT crews and agricultural crews and allows personal contact visitation will inherently present more avenues for entry of contraband than a more restrictive facility
This can be controlled by shake downs, strip searches after visitation, metal detectors
Might not be advisable to use stripe searches on all prisoners as it might violate their rights
Would recommend strip searches only for inmates that seem to be distributing contraband
Assumes that traditional methods of shake downs, staff observation etc. were employed, but questions thoroughness

21

346
*347-8
*349 349 350 350 351 352
352 353 354
*356 356 357 359 359-60 361

TRIAL TRANSCRIPT - VOLUME V (R-13) (12/4/85)
Lipman brings up question of whether investigation was ever made into Nimkoff's request. Nimkoff announces that it is his impression that it never materialized
Improvements in confinement area while Turner was superintendent: confinement area expanded from one to three rows; cells were rehabilitated; continuing and extensive modification and improvements were made
These improvements were substantial
Walls between cells are solid
Not necessary to snitch in order to obtain PC under Turner, but it would help
Harper may have been admitted to PC w/o identifying his assailant
Policy at GCI did not require snitching to get PC but line officers seemed to function that way
It is reasonable to attempt to learn identify of assailants to provide security and protection of inmates; difficult for officers to protect inmates and to discipline offenders unless they are told of an assault and identity of assailants
Inmate should be encouraged to identify his assailant
Inmates that were in confinement for lengthy periods at GCI had often been in lengthy confinement at prior prisons
Inmates often prefer to live in PC long term rather than face general population due to a number of pressures - fear of assaults, gambling or other debts, because of snitching
During Turner's administration there were excessive population pressures in the system at times
Only a few facilities had cell block arrangements
Peters said that is a prisoner snitched he would be assured of PC; not necessarily assured of it if he did not
Inmates in PC did not have to work and this might induce a prisoner to seek PC
Prison must also be careful not to allow prisoner seeking revenge to get PC; this highlights need to seek information about and knowledge of assailant
Reason for housing prisoners according to work type is to prevent one group's time schedule from interfering with another
22

361
362 362-3
363 364 367 367 367 368-9
370 *37l 372 372 373 374
375 *375 376-7 377
378

Although prisoners in PC did not have access to law library, operational procedure was to bring books to them
Report of 11/4/82 regarding lighting in confinement area (Ex. 5); a few weeks before, the confinement area was under construction
Construction was still ongoing at the time of the report and it involved lighting and ventilation Report of 10/6/82 indicates project was designed by an architect in accordance with standards
Turner's efforts to improve manpower shortage: legislative requests; administrative requests; use of van to transport staff from distances
Turner succeeded in increasing pay which led to staff increases
Staff shortage an important factor that permiated almost all other problems
Also during Turner's period, staff turnover was reduced
Some turnover reflected in statistics would be for workers hired to fill prior
turnovers; workers that leave are more likely to do so during first year
Not all new staff are inexperienced; they may come from another institution
Shanks are typically to be found at any institution
Shanks can be constructed out of almost anything from toothbrushes to pens
Rape is under reported at other institutions and in society in general In order to transfer an aggressive inmate it is necessary first to identify him, then to find another institution that would accept him
Superintendents at other institutions will not react favorably to an institution that seeks to get rid of its problem inmates without accepting the other institutions' problem inmates in return
Swaps will typically involve problem inmates from each institution
A superintendent's freedom to manage his own population is severely restricted when the system is crowded Concedes that R-rated moves depict nudity and intercourse
Best way for staff to determine an aggressive inmate is observation and number of DRs - Pryor an example
Cobb was an aggressive inmate
23

378 378 378 379 380 380 381 381 382 382 383 384 384-5 386 386-7 387 388 389-90 390

Concedes that many non-aggressive inmates receive DRs
Difficult often to determine if an inmate who is fighting is the aggressor or the victim
Total number of DRs not very meaningful
Typical for administrative offices to be outside the security perimeter; this is for good reason; reduces security pressures on staff in perimeter
Requirements for firearm training was instituted during Turner's administration
Does not know for how long a period the psychologist's position had been open under Turner
Assumes it is difficult to fill such a position in Belle Glade
Infirmary was facility one could be proud of; built by Turner
Towers' primary function was perimeter control; GCI used Cushman vehicle and electronic system
GCI manpower budget was cut by state when electronic system was put in since towers did not need to be manned
Entrance tower was manned; its addition was an improvement
GCI's effort to document any problems was impressive; this is important for good management and for proper protection of inmates from aggressors
His impression that staff was disorganized was based on incident reports showing officers were unsure of procedures
Would expect some degree of confusion with a staff of 220-250 and the turnover rate
Fact that there were staff reprimands for improper compliance with procedures is sign of good administration
Use of force reports were typical in number for an institution of this size; use of force at GCI seemed reasonable
Level of use of force incidents shows staff did not resort to it excessively and were not reluctant to utilize it when necessary and called for
Mixing confinement classes in same row but different cells does not produce physical danger but can produce psychological harassment
Redwood fence was placed outside confinement building windows to reduce harassment by inmates

24

391 395 397
397-8 398-9 401 402-4
404
404
406
409 410 410
412 414 415 416 417 419 420 421

Not aware that much in glades area oxidizes and recedes
Vast majority of assaults by inmates on staff were unarmed
One of confinement reports indicated screens had been replaced in confinement
area during Turner administration
Concedes there was on going maintenance during Turner era
Not aware of expense involved in conversion to non-cash system at a prison
Existence of contraband does not necessarily indicate lack of substantial effort to reduce it Conclusion that Turner had done nothing to impede flow of contraband was based on lack of mention in reports he reviewed; concedes the types of reports were not necessarily calculated to disclose such measures Staff overtime which affected staff morale was a function of manpower shortage
Overtime is only immediate alternative to manpower shortage other than leaving a function vacant All of the documents he requested and reviewed were ones which were generated for purpose of identifying problems Redirect Examination ACA accreditation is extremely sensitive to paper work At type his committee found FSP in violation of inmates civil rights, it was in process of accreditation Costello v. Wainwright litigation was that which he was involved with ACA accreditation does not address issue of inmates civil rights DOC combines hispanic and white inmates together in statistics Most correctional administrators view showing graphic portrayals of sex to large inmate audience as not wise Movie that excites sexual stimulation exacerbates problem in a prison
GCI's racial categorization no different from the rest of the state system
MOTION FOR RECUSAL Nimkoff's view of the facilities was not necessary to a consideration of LaMarca's testimony at time of visit
25

423

WM indicates concern that Nimkoff's question to Swanson intrudes into issue of

Turner's knowledge of the conversation with Belitsky

424

WM calls Nimkoff's attention to Canon 3(c) Code of Judicial Conduct regarding

recusal

426

Nimkoff's knowledge and testimony of conditions that existed form basis of

recusal

428

LaMarca told Nimkoff he would give Belitsky a list of names of prisoners

similarly subjected to assaults or threats; Nimkoff asked Belitsky to investigate

"this obviously serious accusation".

429

LaMarca orally advised Nimkoff that GCI staff would look the other way

rather than protect these inmates

429

Independent of this, Nimkoff asked for a walk through of the confinement

which he did to acquaint self with the totality of a public institution to be an

informed member of the judiciary. He viewed confinement area with

"considerable concern".

431

WM indicates that Nimkoff would be wanted as a witness in the case

26

436 437 437-8 438
438 440
440 440
441 442 442-3 443 444 44-5
445
446 446
447
448 448

TRIAL TRANSCRIPT - VOLUME VI (R-14)
(12/4/85)
RONALD LEE DURRANCE/DIRECT Presently at Dade Correctional; previously at GCI Married, 2 children Convicted in 1977 for robbery, burglary, possession of burglary tools and violation of probation; 15 yrs. sentence
Classified at Manatee County Jail, sent to Desoto Correctional 9/77 After 7 1/2 months, he was sent to FSP for disciplinary reasons for conspiracy and attempt to escape; at FSP 5/78-3/80 Next sent to Cross City 3/80 - 3/81; then in work release, Panama City Returned from work release 6/81; drinking, lying off job; sent to Jackson Vocational At Jackson 6/81-3/83; convicted of burglary while on work release To RMC 7/11/83 then to Butler Transfer Unit To GCI 10/83 until 7/84 Expiration of sentence 11/87; established parole date 5/87 Raped March 1984 at GCI; housed in B dorm; lived in B since arrival Night of March 17, 1984, transits were brought in; he went to front door and warned new guys to put personal property away so as not to be robbed Transits do not have much with them to loose; sometimes tennis shoes or uniform, watches Never witnessed a theft; just heard about it Approached by Willie Dock and Bull (Williams) who told him to leave transits alone He moved away; CO was in wicket giving assignments; he could not hear conversation between Durrance and Dock Never previously had any discussion with Dock or Bull
Nothing happened until later; he got shower and walked around; lights go out at 11:00 p.m.
27

448
449 450-451
451 453
454 454 455
456 457 458 459 460 460-1 461 462 463 464 465 465
466

At 10:30 he talked with older guy, Buddy Wilson; if you talk with older guys you are not hassled too much
Returned to bunk for count at 11:00 p.m.; lights were dimmed
Went back to talk to Wilson at 11:10 p.m.; a black inmate, J.R. approached and said he wanted to speak to him; he went to J.R.'s bunk
Bull grabbed him around neck between bunks; J.R. was in front; Willie Dock had knife; Bone had knife; Bean was also there
All 5 of them were black; Dock threatened to cut him if he hollered and put blade to his neck; he was dragged into shower by Bull
He did not struggle; J.R.'s bunk was 2 bunks from shower
He last saw CO in day room watching news after 11:00 p.m.
He was dragged into shower and taken down onto floor; he was not wearing a shirt; wearing pants
Bean held him down and J.R. held knife on him; others snatched off his pants and shorts
He said nothing because he was threatened; he was scared
They wrapped his pants around his neck and face, blocking most of his vision
Immediately after pants were put around his face he was forcefully entered through rectum; wanted to scream out but did not
He was lying on stomach; there were three different penetrations; does not know if it was 3 different persons
He was almost in doorway of shower
Does not know if anyone ejaculated in him; could not have lasted more than 35-40 min.; told not to go to wicket
Put his shorts back on but not his pants; cried
Other inmates had left shower; it wasn't yet 12:00 p.m.; shift had not changed; he returned to his bunk past the bunks of Dock, Bone & Bull
Could not go to CO who was black and who was friendly with black inmates
He was afraid CO would not do anything if he was told
Would have to name an assailant to give good cause necessary to be placed in PC. He was not bleeding although he felt pain for 5 days
He laid on bunk and did not tell anyone what happened
28

469
470 471 472 474 476
477-8 478 479 480 481 482 484
485 486 487 487 488-9 490

In morning Lt. George Lawson was on duty but was in chow hall rather than office where he could talk to him; does not say Lawson wouldn't do duty, but he has one-way attitude
He went to the vocational workshop; Dixon came on shift in B dorm
Did not want to talk to Dixon because he saw money passed and Dixon sold inmate half pint of whiskey
He preferred enduring the rectal pain for 5 days to the embarrassment of reporting to the medical department
Did not go to work on utility squad later in day; went to library
When Lt. Slater came on duty in afternoon he told him he had a problem and needed PC; Slater told him PC was full and he would not put him in confinement; was not able to tell him he was raped
Several days later Bone approached him and told him he would have to become "somebody's boy" or pay him
He continued to duck work
He was locked up on April 2 for refusing to report to work; did not tell Officer Jones why he would not work
Put in AC; pled guilty; wanted to enter an explanation to Mr. Floyd, classification officer, but Floyd did not want to hear explanation
Wanted to tell Floyd he wanted PC for financial problems; given 15 days
Reassigned to D dorm, but he did not want D dorm; preferred confinement instead
Told Barrett who came through confinement that he wanted PC for debts. Barrett told him to write out report for PC and he would get it; claimed in request that he owed Dock and Bull money
Stayed in PC until 7/21/84
Could not make gain time in PC
Transferred to Polk in July
Not pressured while in PC
Approached by a black inmate at Polk after a month who had heard of his rape at GCI; wanted payment Changed forms but a week later approached again
29

491

Requested PC for owing money; stayed in PC until March or April 1985, when

he received a DR for attempting to bring $125 in from visitation

492

PC at Polk is open dorm

493

After he got back in PC he heard about this suit from a black homosexual who

thought about getting involved

495

To that point had never told anybody about rape

496

His parole officer was unable to get him a parole and he was upset; he wrote

Hall and Amlong; didn't hear about it until April; told he would be prosecuted

for making a written threat to Parole Commission

500

He wrote an apologetic letter to commission

501

Swapped with inmates from Hendry in May '85; met Bone there; asked for

transfer from dorm because of a contract on life from FSP.

502

Again encountered Bone; sought PC; there until 9/27/85 when he was swapped

for GCI

503

Did not want GCI; wanted to be closer to home; immediately asked for PC at

GCI

504

Told Lt. Minor he needed PC because of sexual assault

505

Placed in PC until transferred out in Nov.'85 to Dade Correctional

505

First discussed case with woman named Susan after he wrote Hall & Amlong

506

Told parents of assault in July; did not mention rape

507

DURRANCE/CROSS-EXAMINATION

507

Wrote letter in April of 1985 on this suit

508

Received response in May of 1985

508

Has been sharing cell with Aldred for past week

509

Knew one of his fellow plaintiffs, nicknamed "Shorty" at Polk; shared PC

together

509

Ashamed and embarrassed to talk about being raped

511

He could have gone to shift Lt. on night of rape but he was afraid to do so

514

He was fearful if he told of rape to staff, word would get out; word, however,

was already out

515

Word was obviously "out" when he was at Polk, but he did not go to staff

30

515 516 518 518 518-19 520 521-2 522-3
523-4 526 527
530 532 532 533
533 533 534 535
535 535-6 536

Has not seen his record Has had 20-25 DRs over a 9 year period Prior to 1983, he had had 12 DRs in 6 yrs. Reportedly member of Omens gang Had a number of DRs for possession of contraband prior to GCI Had DRs for drinking and hitting black inmate with weight bar Had been in confinement at FSP, perhaps PC Parents wrote Senator Hawkins asking for a transfer from GCI on basis that his life had been threatened at FSP At FSP 5/78-3/80; had been in business of selling marijuana cigarettes in prison Lied about statement that Ashley had contract out on him from FSP Did not know what lawsuit was all about until he talked with Lipman's investigator in May or June of 1985 He hit inmate with iron bar for pushing him MARTIN SAUNDERS/DIRECT
26 yrs. old
Presently at Baker Correctional Inst.; convicted of sexual battery, 35 yrs.; possession of marijuana 5 yrs.; aggravated assault 5 yrs.
First sent to DeSoto when he was 20
Received many DRs at DeSoto - marijuana and assault
Hit inmate in first week at DeSoto for calling him a homosexual
Verbal sexual harassment common in entire system if person labelled a homosexual At DeSoto 2 yrs.; went to Cross City 2/82; Went to GCI 2/83
Due to his physical characteristics, homosexuals had been attracted to his body structure and he received numerous propositions prior to GCI; this made him insecure

31

536
537 537 538 539 539-40
541 542
542
544 5454 546
546 547 548 548 549 550 551
555

He arrived at GCI, saw great multitude of black inmates at a distance, some close up; felt he was on meat market display
Hgt. 5'7"; has obese buttocks which are very attractive to aggressive inmates
Did not like smell when he arrived at GCI and number of blacks
Only towers then in use were recreation field tower and gate tower
Did not receive orientation at GCI; placed in A dorm
Approached first night by several black inmates attempting to be his friend; his experience told him they wanted sexual favors; later they became more aggressive when he did not respond
Larry Pryor and James Roper were particularly aggressive
Complained to classification officer several times about Pryor and Roper; classification officer was Knight
Knight told him they were running a game; did not believe situation was very severe
Knight approached him from behind and pressed his body against him
What he wanted was to transfer to C dorm which had a majority of whites
Pryor and Roper progressed from friendly approach to threats to striking him 2
or 3 times
Pryor asked for money from him after visitation; threatened him with knife
Pryor and Roper lived on same side of A dorm
On third visit to Knight he was moved to other side of A dorm
Most guards at GCI were black and were not sympathetic
Move separated him from Pryor and Roper at night but not during day
On one occasion his property was thrown into shower; ruined photo album Describes rape in classification bldg. bathroom by Pryor and Roper: he was using bathroom, they forced way in, made him lean over toilet, lubricated themselves and entered him anally; ejaculated in him; Roper went first; Pryor held knife on him, they they changed places; he pleaded with them to stop, but they ignored him; he spoke but not loudly. No one heard Incident took about 25 minutes

32

555-6
557
558 558 559 559 560 561 562 562-3 563 564-5 566 566 567 568 569 570-1
573 574 574

After he left bathroom he went to recreation field for an hour then left to find them; he found Pryor, started fighting with him. He was called in by Lt. Pipta who investigated fight and spoke with both of them and other witnesses. He told Pipta of rape but he did not believe him;
Pipta sent him for medical exam; not given a rectal exam; tried to tell medical personnel what happened but escorting officer rushed him back to confinement
He was placed in a PC cell even though he was under AC
Rectum was sore but not severely
Had peculiar bowel movement next day
Pryor and Roper were not confined
He was one of 3 in a cell; slept on mattress on the floor; cell had mildew and was roach infested
He was in confinement 4 days
People in confinement were allowed to roam outside cell; guards would let visitors in
They would not reassign him to C dorm from A dorm because he was a kitchen worker
He had advanced to clerical position in kitchen which he lost while in confinement
He had to change to work in cane fields to get moved to C dorm
Never before or since at GCI had to go into PC
Not physically harassed by Pryor or Roper after he was in confinement; never again raped
"Verbally propositioned" by an inmate in the cannery who called him a homosexual
He got belligerent with the other inmate who severely kicked him in groin
Other inmate lived next to him in C dorm
Afraid of inmate since bunks had hanging covers etc. which could hide an
attack so he went to new classification officer — Dutenhofer — for PC
Cell in PC was in same condition as previous cell
He was either alone or with another inmate
No privileges in PC
33

575-6 578 580 583
583 583 584
584 585 586 587 588-9
590
591 592 594 595 596
597
598 598
599

Never saw Turner visit confinement area Put in mentally disordered sexual offender program SAUNDERS/CROSS-EXAMINATION Majority of his DRs prior to GCI were for possession of marijuana, other contraband; unauthorized area Not many DRs for conflicts with other inmates, but he had many conflicts Had problem at DeSoto from prisoners seeking sex from him Had an above average amount of propositions at DeSoto but not as many as at GCI Smell at GCI was from manure and burned sugar cane Does not like smell of the glades Received first threat at GCI after a week First approached classification officer within a month after arrival May have told Knight in first interview that Pryor struck him, but may have been 2d interview Does not know names of other COs he complained to about threats; difficult to communicate to Knight Not sure whether he identified Pryor and Roper in 1st or 2d interview Primary purpose in talking to Knight was to get a transfer to C dorm Moved to A dorm after 2d interview with Knight; moved to C dorm later Only advances by Knight were on first interview Not sure that he told identity of Pryor and Roper to Knight; did not tell Knight of his being pressured for money He was in classification bldg. on day of rape because it gave him privacy; does not like to go to bathroom in public Bathroom was 5 by 8 Admitted to Pipta that he initiated a fight and that he had been raped in the classification bathroom Pipta disregarded any comments except those related to fight
34

600
601 601 602 604-6

Tried to tell medical technician he had been raped but not sure he did so because he was interrupted by the guard
Does not know identity of guard in infirmary with him
Not all inmates were allowed to walk outside of their cells in confinement area
Inmate with good rapport with officer might be allowed out to sweep floor
Denies ore tenus motion for recusal with leave to reassert it upon receipt of transcript

35

613 613 614 616 617-8 619
620
621
621-2 624
624 625
626
627 627 *628
629 631
631 632

TRIAL TRANSCRIPT - VOLUME VII (R-15)

(12/5/85)

½

Received about 8 DRs for conflicts with other inmates at DeSoto In a majority of these he was not the aggressor Struck man at DeSoto for calling him a homosexual Had fight in van with man who called him a snitch Majority of his fights at DeSoto were with black inmates Saunders also claimed that pictures and other property were stolen from him at DeSoto Also had problem with theft of property at Cross City and Avon Park; no problem yet at Baker Opinion that the fight with Street in the cannery at GCI was due to reputation spread by Pryor and Roper only supposition; no evidence Taunted at GCI even before Pryor with being a homosexual He and Edwin Johnson were shipped out of GCI together; they had both been in PC WAYNE EPPRECHT/DIRECT Presently at Avon Park; incarcerated 3 times in Florida: GCI in 1976; GCI '80'82 and Avon Park
Served time in Connecticut and California; convicted of 15-16 felonies since 1972, mostly burglaries and armed robbery First trouble when he was 21; he is now 34; presently serving life + 130 yrs. In deposition he claimed assault in 1982; it was 1981 in February Received $25 during visitation and returned to dorm about 4 p.m.; approached by 2 blacks who asked for money and struck him with fist and iron pipe This occurred in D dorm; did not see any COs in dorm Reported to medical facility for help, but never revealed any information about the assault Taken by a CO to the infirmary Taken to Glades General Hospital; admitted to hospital
36

633
634 634 635 636 637 638 639
640 641
647 648
649 650
650-1
655 655 657 657 658 659 659
662

He was asked several times what happened; he told them he was hurt playing football Saw Turner 2 or 3 times while he was at GCI Sent from Glades General to Lake Butler for surgery Staff at RMC did not ask how accident occurred At RMC several weeks then returned to GCI
Does not know names of assailants; would know them if he saw them Asked officers at GCI to be put back in D dorm; they agreed
Transferred from GCI a year later to Lantana work release; paroled then committed armed robbery Has been at Union and Avon Park since conviction
Saw one of his assailants at Union; received verbal threats and was put in PC for 15 months before transfer to Avon Park EPPRECHT/CROSS EXAMINATION Convicted of several armed robberies while serving work release as a cook at Caesar's Rest, in North Palm Beach
Told chaplain who saw him at Glades Gen'l. that he was hurt playing football He did not make effort to identify assailants when he returned from RMC because they told him they would leave him alone if he said nothing
Heard about case while at Union; filled out questionnaire and several months prior to trial he had an interview There were a few other inmates in the dorm when attack occurred Did not feel comfortable talking to chaplain because he was black Sally Saunders testimony Mother of Martin Saunders Martin in constant fear for his life at GCI Tried to call Turner many times; got through to him 3 times Last phone call, she expressed concern she had over son's harassment after joining suit Son was moved 2 days later
37

662 664
665-666
667 668
669 670-1 671 672 674 674
676 680 681 682 683

Lives in Palm Beach Gardens; i; Identifies phone bills from 198.

5/7/83: 6/3/83: 6/11/83: 6/16/83: 6/29/83: 7/18/83: 8/12/83: 8/15/83: 8/17/83: 9/3/83:
9/6/83: 9/12/83:

1 minute 9 minutes 2 minutes 6 minutes 2 minutes 2 calls 2 & 1 min. 10 min. 2 min. 1 min. & 12 min. 2 min. 9 min. 4 min.

These are calls to Turner

10/31/83: 11/30/83: 12/2/83: 12/6/83:

2 min. & 7 min. 4 min. 17 min. & 8 min. 2 min.

Only talked with Turner 3 times; two were on 12/2/83

Heard son's testimony; he never told her about it before

He once had stab wound in nose and a black eye

After she read details in paper she talked with son but he did not want to give details

Visited son every week from 9-3 at GCI prior to newspaper article about suit

Not allowed to visit son who was in PC after article; then told she could have 1 hr.

Wrote to Turner -– Ex. 12 -– on 12/4/83 complaining of this

Article she read was in 1983 in Miami Herald

She and her son were both harassed after he joined suit

Harassment consisted of guard at visitation not finding her son for her

Son at time was in general population
Does not know how longer after suit was initiated that son was in PC — maybe a month

38

685-6
687 687 688
689 689 690 691 691 692
693
694 696 697
697 698-9
699 700

Other harassment, son charged with possession of knife which was planted on
him
STEVEN H. BRONSON, JR./DIRECT
37 yrs. old Presently at Polk on 15 yr. sentence for escape in Jan. '69 received 13 yrs. for assault to commit murder, burglary, jail break; 1/73 sentenced 1 yr. to life in Calif, for oral copulation and sodomy between consenting adults; 10/81 received 3 yr. sentence for grant theft
Arrived GCI 11/81; no orientation; put in D dorm
Sexual preference - bisexual, transvestite, answers to Nancy Sue
Size 5'll"; wt. in 1981 was 155-160
Inmate Mack at GCI was black who was involved in prostitution, gambling, contraband
Watched pornographic movie on videotape player in movie trailer
One Saturday, Mack sat next to him watching movies, pulled out knife and made Bronson masturbate him; told him he would have to become one of his girls or pay protection
On 3 occasions he observed a CO having sex with a prisoner; did not know guard's name; once was in movie trailer, once in dorm and once in recreation field shack; acts were oral copulation of CO
Bronson was voluntarily having sex with other prisoners at this time
Did personal favors for Mack and paid money until 6/82; masturbated inmates sent to him by Mack; this occurred in library, trailer, dorms, rec. field
Some guards were aware of activities but would look the other way; when servicing customers, he would wear a T shirt rolled up and knotted under his breast area, shorts and sandals to appear more feminine
Mack employed 2 other "girls"
After one of his girls left, Mack told him he would have to be a replacement doing oral and anal copulation; he refused; one day on rec. field, several of Mack's friends grabbed him, stuffed rag in his mouth and shoved the handle of baseball bat forcefully in and out of his rectum several times; this was around 9-10 a.m. on a Saturday
Incident was very painful; tried to scream but could not; felt like he was being torn apart; was bleeding from rectum for 3-4 days
Had pain for 6-7 weeks
39

700 700-1 701-2
704

Did not go to clinic and was warned not to report incident
Never complained to guards about incident
Saw Mack buy alcohol from 4-5 guards on several occasions; saw guards sell Mack marijuana and cocaine on several occasions Did not know identity of guards

40

709 710
711 711
712 712-13
713
714 715
715 716 716
717-8
718
719
720 720-1 *722 722

TRIAL TRANSCRIPT - VOLUME VIII (R-16)

(12/5/85)

ß

Incident with baseball bat occurred 6/26/82

Had visit from wife and daughter on 7/4/82 then he went into PC. Gave as excuse that he was having family problems and was considering escape

Was afraid to tell guards that reason for PC was fear of sexual assault

He was in old section of confinement; 1 & 2 man cells; he was in cell with 1-3 other inmates during time in PC

They slept on mattresses on floor; light in cell was broken; cell was dirty; allowed out 3-5 min., 3 times a week for shower; food was cold

Asked to go to law library but was refused; does not know if any request went to Turner
Inmates in confinement punched or cut holes in screen to allow friends outside to pass items in - cigarettes, tobacco, etc.

Mack came up to window several times and told him to come out

In PC 7/4/82 - 8/25/82; never saw Turner in confinement; saw him in compound 2 times

BRONSON/CROSS-EXAMINATION

At GCI 10 months, 2 months in PC

Never had sex with anyone at GCI after Mack told him he would have to replace the "girl" who left
Never gave sexual favors voluntarily at GCI; did so at other prisons - DeSoto, Cross City and Union

Was at Union on 4 occasions; gave voluntary sex in 1981, before coming to GCI; lived in 2 man cell at Union

Has not given voluntary sex since leaving GCI, has done so involuntarily at FSP, Union, Avon Park

Has occasionally worn women's clothes in prison

Filed Federal Suit when he was barred from wearing women's clothes in prison

Does not know where pornographic videos came from

Never reported his sexual encounters with Mack on the guards he saw having sex

41

723 724-5 726 726-7
731 731 732 732 732 733-4 734 734-5
736 736 737 738 739 739

Only guards he saw having sex were COs; they may have been among those in group that was frequently turning over
After 2 mos. in PC at GCI he transferred to FSP on a federal lawsuit, due to alleged deprivation of library privileges at Lake
Never told anyone about the assault at GCI although he spoke in general terms to a number of psychiatrists
Prior to PC at GCI his job was cleaning up grounds. Took 15 minutes a day;
spent rest of time in dorm or library; did not wander around grounds
BILLY JOE HARPER DIRECT
Age 25; presently at Union Convicted of petty larceny in 1976, 5 yrs; sexual battery in 1980, 15 yrs.; projected parole date 5/5/88
Not abused sexually in Alachua County Jail
Arrived at GCI 12/31/81; was there for 7 mos.
At Hillsborough Correctional '77-78; Avon Park '8O-'8l then GCI
Transferal to GCI to be closer to home and due to incident over a radio
In July '82, transferred to Polk; after 5 mos., transferred to Hendry for 3 mos., transferred to Union for 8 mos.; transferred to Zephyrhills for 1 mos.; transferred to Cross City for 3 mos.; transferred to Lake for 1 mo.; transferred to Tomoka for 3 mos.; transferred to Marianna for 3 mos; transferred to Polk for 3 mos.; transferred to DeSoto for 9 days; transferred to Avon Park for 2 weeks, now at Union
Raped at GCI two weeks after he got there; in D dorm at 2:00 a.m. in his bed a top bunk
Woke up when Levy Fisher fell on top of him holding a knife
He had previously spoken once to Fisher who came up when he was talking to Larry Turley; Fisher who was black was from same town
During assault Fisher placed knife to his throat and told him he would cut his throat if he made sound; Harper said nothing
Fisher pulled Harper's underpants off, grabbed his leg, pulled it up and had intercourse; Harper was on back
There was a CO in the form that night but he did not see the CO until next morning

42

740 741-2
742 742 742
744 744-5 745
746 747 749 749 750 750-1 751-2
753 754 755

After rape he laid in bed and said nothing; Fisher told him later he would kill him if he told anyone
In morning before breakfast he went and checked into PC with 2 other inmates; Turley told Sgt. Hicks they wanted to check in to get away from Fisher; Turley was in adjoining bunk
Turley was Fisher's "boy"
When he asked Hicks for PC, Hicks put him right in; he stayed there 2 weeks
While in PC, Andrew Jackson — "Thumb" — came to window and offered him
protection; Harper accepted and paid him $10 a mo.
Asked Mr. Knight to come out of PC after 2 weeks
Slept on mattress on floor in PC; 2 other inmates in cell After 3 days in PC he was taken to Turner with Fisher and others; Turner asked why they were in PC; they told him Harper was raped, Turner did not believe them
Turley, Summerlin and Randy Zatler were all present
After PC he was placed in D dorm at other end of row from Fisher; Fisher never approached him afterwards
HARPER/CROSS-EXAMINATION
Arrested for rape in Gainesville and confined in Alachua County Jail; later moved to Baker where his classification officer was Mr. Pridgeon
Denies telling Pridgeon that he was raped in county jail by man who was at Baker and wanted PC; but he admits receiving PC
Sought PC at Brevard in 1980; does not remember if he asked for PC because he testified against another inmate and was in fear of life; may have done so
After Baker, he was in PC in Avon Park 3 or 4 times; denies he went to PC at Avon Park 3/1/81 because he told mother he had been raped by 3 blacks in a shower
Placed in PC at Avon Park 7/1/81 because he owed money and several blacks threatened to kill him; same on 7/24/81
Received a DR in 1978 at Indian River for participating in a riot between white and black inmates
Denies a DR at Hendry 2/22/83 for stating he wanted to have sexual intercourse with him

43

755
757 759 759 760 760-1 762
763 763 764
765 765 766
767 768 769 769 770 772-3
773
774 774 774-5

After leaving GCI he had a visit from Peters who asked if he would go to court and testify against Andrew Jackson for extortion; he agreed to do so He also gave information on drug ring at Polk Levy Fisher was in his late 4O's; 5'7" or shorter Hicks gave him PC immediately when he checked in While in PC he was not threatened by other inmates He told Barrett and Peters about paying money to Jackson; Barrett had stopped him and asked why he was paying money First told Peters when he went to Peters to get back money that was taken from him while in confinement; told Peters he needed money to pay protection Did not tell Peters who he was paying protection to EDDIE COBB/DIRECT
Age 24; resides in Dade Co. for 8 days previously at Union; convicted in early '81 of armed robbery and assault with deadly weapon At GCI from 9/82 - 3/15/84 Was stabbed by Pryor 1/27/84 near canteen He walked near Pryor, Pryor jumped him and they fought; he didn't know Pryor stabbed him at first Fought 10-12 min.
Cobb ran to control room and was taken to hospital
He did not tell anyone who did it; saw Pryor taken to confinement After he got out of hospital, he was taken to confinement
COBB/CROSS-EXAMINATION Day before fight, he and Pryor exchanged words; Pryor told him not to put his hands on his "boy" again Cobb was surrounded by his "constituents" at time — some were black, some were white; they were not a gang Words were exchanged in front of B dorm
Fight occurred during breakfast period Pictures of canteen marked Def.'s Ex. 3 - A, B & C
44

775 775 776 776 777 778-9 779 780 781 783 783 784 784 785
786
787
788
789
790
791
792

Fight happened under shed of canteen
Does not know if anyone else was around when fight took place
Sgt. Hicks apprehended Pryor
Stayed in hospital 10 days
In confinement about 1 mos. afterwards; put on DC side, then AC side
He had no other troubles in compound other than fight
Admits getting a lot of DRs -– verbal disrespect and fighting
Filed no petitions or grievances against Pryor
Filed grievance objecting to transfer from GCI to Union
Had fight in kitchen with a cuban 3/8/83 at GCI
Had fights at Union
GREGORY ZATLER/DIRECT
Lives in Miami Beach; there 2 mos. Sentence ended 10/29/85; convicted 5/8/78, burglary and violation of probation; 7/20/84, 4 counts of burglary, 2 grand larceny; 1 attempted murder; 1 possession of marijuana; sentenced to 8 yrs.
At GCI 10/81-8/82; first at Sumpter 9/78-1/79; UCI for 1 yr.; FSP 2/80 - 4/80; Dade 4/80-10/81
GCI was very run down looking; requested PC his 1st day at GCI because there were a bunch of blacks standing around compound
Told staff he feared for life; in PC for 2 mos. during time there was 1 other inmate in cell
After leaving PC he got assignment to D dorm and on way he was met by Fisher who told him he was going to be his "boy"
He understood Fisher to mean he would have to do homosexual acts with him; he agreed to do so; Fisher had CO move Zatler to a closer bunk
At night in dorm Fisher would have him lay on stomach and have anal intercourse; Fisher would be on top
This happened once a week for 6-7 mos. until he went back to PC

45

792-3 793 794 795 791
799 799 800 801 802 803 803 804 805 806 807 808-9
810 811

Told Sgt. Bradley he was fearful of Fisher; Bradley placed him in PC for 3 mos.
Harassed in PC by guards who ordered him to serve on work crew; he refused
Present at conference with Turner along with Harper, Turley, Summerlin and Sims who all were seeking protection from Fisher
Told Turner they were there because of Fisher but Turner did not believe them
Assaulted in PC by inmate named Banks when he hit Banks for not returning a pen he had borrowed; he hit Banks several times without a response. Took drink of water and turned to hit Banks again and Banks struck him with razor blade on hand and chest
ZATLER/CROSS-EXAMINATION
Has had sexual problems at every prison he's been in; claimed to be raped at Dade, Sumpter, Starke
Fisher did not threaten him when they first met; offered to protect him from others if he would be his "girl"
DAVID ALDRED/DIRECT
25 yrs. old; currently at Lake Correctional for 2d degree murder and perjury; sentenced on murder charge 7/29/83 to 15 yrs.; convicted of perjury in early '83
Came to GCI 7/20/84
First impression of GCI was tidal wave of blacks against fence
Received no orientation; assigned to B dorm
He was assigned a top bunk; he was approached by inmate to be his sex partner
Next night — Saturday — black named Captain told him he was going to be his partner; in front of B dorm
Later he went to take a shower; could not see wicket from shower
Was in shower alone, then was hit on head when he had soap in eyes; fell to floor and someone stretched his arms out and held them; someone else raised his head and put knife to throat; could not see persons, but could tell from voice it was black; was told he would die if he opened mouth; they then spread his legs and 2 or 3 of them had anal intercourse with him
Rape took 15-20 min.; they told him not to say anything
Half hour later he told dorm officer, but does not remember his name

46

812
812 813 814
815
816 816
817 817 817-8 819
820
820 821 822 823 824 826 828 829 834 835 836

Officer told him to return to bunk and he would take care of it; told officer he was raped Did not receive a rectal exam Borrowed 2 knives Told second officer at 12:00 a.m. that he had been assaulted; does not know name of officer Told Lt. next day that he had been raped; was asked if he knew identity he said no; Lt. denied him PC Spoke to Lt. in afternoon During rape he felt like he was being torn apart; burning sensation; bled for 2 days Had pain for a week Shortly after rape he was sent to RMC for dental work Does not remember name of Lt. Told psychologist at RMC what happened at GCI as best he could and asked for transfer; attempted suicide when denied Went back to GCI after a week and entered PC until he was transferred in nine days ALDRED/CROSS-EXAMINATION Threatened to escape at GCI to get the PC Not really certain if he told staff at GCI of the rape Denies asking for a transfer from Polk to Brooksville or Zephyrhills Perjury was in suit against police officer Dead lifts 360 lbs.; did so before GCI to 250 or 275 lbs. Told RMC psychologist he was raped and told another physician Cuts on wrist of attempted suicide were reported as superficial LARRY EUGENE BROWN/DIRECT In PC at GCI currently; in prison system since 5/85 Convicted of kidnapping and lewd and lascivious conduct on 5/20/85
47

837 838-9
839 840 840 841-2
844 846 847 847 848 849-850
851 852 854 855 858 865

Convicted of 2 burglaries in 1980 and a lewd and lascivious in 1979; 5 yrs. probation of L & L and 1 yr. in co. jail on burglaries for violation of probation
First at Lake Butler, 1 1/2 weeks; transferred to BTU until 6/10/85; transferred to GCI
Assigned to A dorm
In between midnight and 8 a.m. shift first night he was raped He was on top bunk; approached by 4 inmates - black - and told to get off bunk
They held knife to him and ordered him off bunk; he complied; made no sound; wanted to run but they had him blocked; told to lay down on bed and not to scream; there was very low lighting; laid on belly; another inmate took down his pants and underwear; he was then raped 5 times; not sure if each was a different person; several ejaculated in him; lasted an hour or more
Afterwards, followed to bathroom by 3 of the inmates whom he can identify
Stayed awake all night in pain
Followed next morning by several of the assailants
Told an officer he had been raped the night before - no reply
3 of the assailants were J.J., Black and Wimp
On fourth day several COs and a Sgt. were in dorm and they took him to Lt. Minor Lt. Minor told him he heard he had a long line of inmates waiting to be serviced
Did not provide names to Minor; was put in PC
Transferred 7/5/85 to Hendry
Spoke to psychiatrist in PC
Sent request slips and showed them to Music, asking for assistance in filing a grievance Does not remember Dr. Caddy

48

866 867-8 869-71

Assigned to A dorm at Hendry; there for 30 days when other inmates from GCI passed word of his being homosexual
He began getting sexual harassment so he checked into PC until 9/27/85 when he was returned to GCI
Requested PC from Sgt. Nappi when he arrived; Nappi sent him to Minor who had him fill out statement of incident and put him in PC

49

1010 1010 1011 1012
1013 1014
1016 1018 1019 1020 1021-2 1024 1025 1027 1028
1031
1036 1037 1041 1042
1043 1044

TRIAL

TRANSCRIPT - VOLUME (12/6/85-12/9/85)

IX

(Xl)

l

(R-18) '

(<2.

BROWN/CROSS EXAMINATION

Arrived GCI 6/10/85

Did not report assault following morning

Does not know name of CO he reported it to following afternoon since he did not wear name tag

Spoke to CO late in afternoon; spoke for 10 min.

Told CO he had been homosexually raped night before; did not tell him no. of assailants

CO was a black officer

Put in confinement four days after his arrival on the 10th

Transferred out of GCI 7/5/85; returned to GCI 9/27/85

Placed in confinement about 6/14/85

Confinement initially was AC; he did not object

Did not tell review team at Hendry about sexual assault prior to return to GCI

Feared telling others of the rape because he would be branded as a homosexual

Court allows bench cross-exam

Denies being homosexual, but admits performing sex acts with males before being sent to prison

Does not want prison population to know that he was convicted of a sexual offense

Denies performing sexual acts while in PC at GCI

Saw Music in Maj. Pipta's office

First identified his assailants to authorities on 9/27/85
Gave sworn statement to Defense a week before in which he denied knowing assailants

LARRY PRYOR/DIRECT

In system 14 yrs.; convicted 3/72 of 1st degree murder; never convicted of any other crimes

50

1045 1045 1046 1046 1046 1047 1047
1049 1050 1051 1052
1053
1054 1057 1058 1059 1063 1065 1065 1066
1067
1067-8 1069

32 yrs. old At GCI 12/81 - 11/84 Not been assigned to GCI before those dates or afterwards After GCI, transferred to FSP Threatened 4 times since he found out he was going to be witness for the state DOC officials threatened him DL announces he interviewed Pryor before session in a.m.; Pryor asked him to address court DL also spoke with Pryor after the deposition on 11/13/85 Sergeant who returned him to cell told him not to give testimony Newspaper reporter objects to bench conference Major at FSP told him when he was packing up to come to trial to think twice about testifying Lt. Pipta warned him not to testify when he came through GCI on way to testify Warned by Major at Dade Correctional not to testify An hour previous, Pryor informed DL that he would testify Pryor asks for an attorney Nimkoff announces intent to appoint counsel Nimkoff will appoint Steven Hartz as counsel for Pryor EDWIN JOHNSON/DIRECT 31 yrs. old Resides in Hollywood; previously on work release; convicted 1975 for armed robberty; given 4 yrs. for violation of prior probation - stolen property (1973); received 25 yrs. for armed robbery Subsequently convicted for aggravated assault at Sumpter - 1 yr.; convicted of weapon possession charge at Union 1979 - 1 yr.; Sent to GCI 2/83; received orientation Assigned to B dorm as a transit; was supposed to go to Dade
51

1069 1070
1072 1073 1074 1076-7 1078 1078 1079 1080-1
1082 1083 1083 1084 1084 1084 1085 1086 1086 1087

All inmates given option of receiving PC or going into general population at orientation
After 4 weeks, he came back from visitor park; saw a large group of blacks and figured he was going to be robbed; took alternate route to dorm; only 1 CO was in compound; others were in visiting park
COs in visiting park were checking and observing to prevent contraband; anywhere from 2 or 3 to 6-8 officers would be in park
Never saw any officers involved in bringing in drugs
Marijuana was available in dorm before visitation; available all the time; comes into visitation park and is thrown over fence.
Heard black officer whose name he did not know offer to help inmate to his family for money
After 4 weeks told by Knight that transfer order to Dade was cancelled
Next week after visit, black inmate pulled knife on him near dorm and threatened him to check into PC or find a "daddy"
He told Knight who told him to go into PC or get pip or knife and fight back
On one occasion, "Freebird", a homosexual white inmate and his little buddy Mike and a big, black homosexual body building named "Trip" and Johnson smoked marijuana together; part ofplan by others to trap Johnson
"Trip" struck him; conversation took place in bathroom at sinks
Guard could not see in bathroom; if he walked around other inmates would warn
"Trip" told him not to talk back to blacks
Johnson had dealt with this problem before
They made him drink 3/4 cup of wine and asked about black who pulled knife on him near dorm Johnson checked into PC for 2 1/2 mos.
Three people in his cell; he slept on floor; Kinner was in cell as was inmate "Wolf" — who was being "pimped off"
"Wolf" was constantly being raped
Next cell had a black homosexual named "Redfin"
"Redfin" was a 190 lb. boxer
52

1087
1089 1090 1090 1090-1 1091-2
1092 1093 1094 1095 1096 1097 1098 1098-1100 1100 1101 1102 1102-3

"Wolf" was put in cell with "Redfin"; he did not see what went on but heard a
lot of banging then "Wolf" was transferred to hospital
Spent most of day sitting around, talking or reading
Told by lawyer he had to get out of PC and into programs to cut his time
Put in C dorm which had equal number of whites, Cubans and blacks
After a week someone broke into his locker; did not know who did it, but reported it to CO who told him there was nothing he could do; lost a Seiko watch, Panasonic radio, photo album, clothes Approached by black inmates "Wop" and "Stringer" who offered to find his property; few minutes later they told him they could get it for $50; Johnson's name was "Worm"
Got money from parents and paid it for property; few days later it was stolen again
"Wop" admitted taking property and increased price for return; Johnson jumped him but "stringer" pulled him off
Seen by CO who took him to AC and asked questions; told them he had reported stolen property
Asked by Lt. Lawson who he was fighting with; lied and told him he did not know
Lawson would not send him to PC; returned him to C dorm where he fought next day with "Stringer"
Went to Lawson again who finally put him in PC; stayed there 3 days
Asked to get out of PC if he could be moved to another dorm; moved to A dorm
Verbally harassed first night in A dorm; 5 inmates put blanket over him and beat him so checked back into PC
Confinement area was in bad condition until newspaper article about this suit; Turner had facility repaited and new screens put in; put in new light fixtures
Inmates in PC were then taken to gym each day
Inmates in gym supervised by a recreation officer; AC inmates went to gym with PC inmates
Michael Lane was a friend of "Trip"

53

1104

Verbally harassed in gym; called a homosexual by inmates outside of gym who

asked Lane to take care of him

1105

After strip search before return to PC; CO named West was seated on chair by

gate; Lane picked up a metal stool and hit Johnson

54

882
883
884 884 884 885 886
886-7
888
889
890 891 892
893 894 895 895 897
898 898

TRIAL TRANSCRIPT - VOLUME X (IX) (R-17)

(12/9/85-12/6/85)

ß·2.3

Johnson was semi-unconscious after being hit; bleeding badly; West did not intervene

Carried to the infirmary by a couple of COs; received 5 stitches; remained in hospital 2 weeks

After he was released from infirmary, he went back to PC

He was tranferred from GCI by prison inspector

JOHNSON/CROSS EXAMINATION

Not attacked by any blacks in group he met returning from visitation

He could not see all of compound to know if there was just one guard on duty in compound at time

Only knowledge he has of a guard involved in contraband was instance when he overheard black guard talking with family of black inmate; guard talked about taking care of paper work and money was exchanged

Had no difficulty in getting PC on the 3 occasions he sought it except sometimes for a delay

Never required to give names to get PC; he was asked names, but not required to give them

Union a more dangerous facility than GCI

When sleeping on floor in PC first time, he had a mattress

All he knew of incident between "Wolf" and "Redfin" was the sound of a struggle

Had property stolen at other institutions as well

West had run to get other guards when fight occurred between gym and PC

MICHAEL GORDON/DIRECT

Present address, Miami Beach

At GCI in 1984; first impression was odor; he was assigned to transit dorm B; had no lock to protect his property; cats were running over compound

Rowboat was used for repairs under the dormitory

Received orientation from Nappi and Bradley; very limited

55

899 900
901 901
901 904
905
907-8
910 912 912 916
916 917 917 918 918 920 922 923 926

First day there inmate was stabbed in chow hall
Inmate next to him—young, blond—raped in bunk one night; was on top bunk; next day inmate was in PC; does not know name
Blacks ran camp
Buck or wine made from fruit juice and yeast obtained from guards; saw Dixon bring in yeast
Dixon played extortion game, brought in dope; pressured Gordon's family
Blacks got good jobs in laundry; had access to food; controlled selection of TV programs
Was in movie trailer only once; sexual activities went on there; walked in and walked out after 5 minutes
Victim of violence 3 times: knocked out while standing near canteen one day; in pain for 3 days; next, had his polyster undershorts set on fire when he bent over to drink at water fountain in dorm; burned his buttocks; then hit in side of head with pipe when two inmates were fighting
Reported each incident
At GCI 9 months
Sought transfer second day he was at GCI
Saw Turner on compound when a dorm was being painted; told Turner he was
medically unfit for cane cutting; Turner called him a liar
Weighed 355 pounds when he arrived at GCI; lost 100 pounds
Transferred to Avon Park which had much better facilities and food
GORDON/CROSS EXAMINATION
Felt blacks had IQ of below 60
Reported Dixon extortion to Peters; Peters referred him to Federal postal authorities since Dixon had mailed extortion letter Does not know if inmates in third assault on him had pass to be in B dorm or not; did not know them PRYOR/RETURN TESTIMONY
Hartz moves to have Pryor excused from testimony under 5th Amendment
Pryor not raising as grounds for refusal to testify, the alleged threats by DOC personnel
56

928 931 932 934 934-9 940 941
942-4 945 946
946
947 948
949-50 950
951 951-2 952
953 953 954

Objection to question of when he was at GCI; objection sustained
Lipman offers Pryor's deposition in evidence under 32(a)(3)(e)
Objection to use of deposition on ground of lack of notice
Nimkoff inclined to admit deposition, but reserves for a couple of days
Proffer of what Lipman believes would be Pryor's testimony
Hartz asks for protection for Pryor
Nimkoff has not made factual findings re: Pryor's allegations of threats but he is greatly concerned
Nimkoff dictates order to DOC on record including injunction
ANTHONY LAMARCA/DIRECT TESTIMONY
Currently at Union for kidnapping and sexual battery; convicted 11/84 and sentenced to life + 15 years
Previously convicted of 4 burglaries, one aggravated assault, violation of probation; 6 years probation for burglaries, violated probation and sentenced to 6 years, served 4
Transferred to GCI late '80, early 81
When he stepped from bus, there was a line of black inmates along front sidewalk making ignorant remarks about his being a "fat boy"--having a fat posterior
Given very little orientation
Harassed for sexual favors for over a year by inmates Valentine Lee, Charles Chick and "Soda Water"
Told "Soda Water" he wasn't into homosexual activities
First assigned to B dorm, then to C dorm
Approached by James Nordheim who was karate expert, who offered to protect him; later revealed he was friend of Lee, Chick and "Soda Water" and advised him to participate with them
Nordheim told him to participate or pay $25 a week protection
Inmates can get money by stealing food, making wine, selling dope
First job was on ranch squad; told him squad leader of problems with Nordheim group; transferred next day to DOT crew
57

956 957 958
959 959-60
961
961 962 964 964-5 966 966 968 969
969 970 970 971

Told by Nordheim to pay money that afternoon or he would be killed; he then escaped from the road crew
Convicted of escape; 6 months consecutive; returned to GCI to culinary dept.
Wanted transfer from kitchen job because they began work 4:45 a.m. and worked til 6:00 p.m.; only white worker; did not get along with other workers; pressured by them for sex
Supervisor told him to ask classification for a transfer
Told by Knight that he understood that he paid debts in homosexual favors; denies being homosexual; never engaged in voluntary or involuntary homosexual acts
Told Lt. Boggs who called Knight in for another conference but Knight said he
could not reclassify him
Gave names of people harassing him to Knight and Boggs
Few minutes later, these inmates threatened his life for snitching
"Soda Water" swung bat at him on rec. field a few days later
Saw Lt. Barrett who gave him a pocket knife and told him to deal with situation; he used it on "Soda Water" when latter tried to take some marijuana from him He stabbed "Soda Water" in hand when he reached for marijuana
Protected by his associates from the other group
After he had a knife, other group left himi alone except for verbal comments; Sgt. Minors also verbally harassed him
He was moved to A dorm shortly after he was sent back to GCI following escape; asked Major Johnson to transfer him because of harassment in A dorm; Johnson refused
"Soda Water" told him one night that he was going to perform homosexual acts with him or else after lights went out
"Soda Water" weighed 220 pounds
"Amp" approached Lamarca and offered to keep others off him if he would be "Amp's" "boy" or punk
He declined; at 2:30 a.m., others came to his bunk with a bush axe; he jumped out of bed and ran to CO's wicket and sat for night

58

972-3
973 974 974 975 975 976
977 978 979 980 981 982 984 985 986-88
988 989 989 990

Caught by CO Johnson next morning carrying a 30 inch sledge hammer; told Johnson about the bush axe; sent to Knight and Boggs and received a DR
He saw chick pass bush axe out window in dorm when officers searched for it
Sought PC in 7/81; stayed 4 months
There were 3 inmates in 2 man cell entire period Did not feel safe because next cell held an AL inmate and guards would open both cells for showers at same time
Did not have any privileges in PC
Went back in general population after Knight told him he would be transferred to Union since he could not live in general population; he objected; Union is a more violent camp but homosexual incidents kept down because of more prostitutes there
Threatened by Officer Reddlebacker after he filed suit; Minor made insulting comments to him
LAMARCA/CROSS EXAMINATION
Convicted of rape 11/84; incarcerated since then at Union and RMC
Received orientation at RMC in 1979 when he first entered system; told about grievance procedures; DC-77 form
Used DC-77 grievance procedures at GCI in regard to Minor's remarks and mismanagement of kitchen by kitchen officer—Scott
Received a number of DRs at GCI for disobedience and fighting
Received confinement for fighting
After he returned following escape, Nordheim had converted to Christianity and left him alone
Sustains objection to WMM's question as to who his associates were who are still in System; would only mention those who left system; he had 7 associates, only names 2
Left GCI 4/83; went to Dade until 11/83
Went to Palm Beach Stockade to serve escape time; then Dade County Jail, then released; was free for 6 weeks
Has since been at RMC, BTU and Union
Received DRs for contraband--icepick, marijuana, wine, sledgehammer handle

59

993

Had been at GCI a year before he told staff names of inmates who were

harassing him

994

Was embarrassed to ask for PC; it would cause conflict with wife and mother

who would think he could not deal with situation

997

LAMARCA/REDIRECT

60

3 3 4-5 6 7 8-9 10-11
14 15 16 17 19
21 24-5 25-6 25-6
27-8 28-31

TRIAL TRANSCRIPT - VOLUME XV (R(12/11/85)
DL announces no more live witnesses except Dr. Wagshul
Discussion of Dixon situation
Discussion of admission of Pryor's deposition; defendants to give list of objectiokns to specific answers DL raises admission of documentary exhibits
MBD announces no objection to inmate records as to business records; reserves later objection to hearsay within hearsay; plaintiffs' Ex. 13-30
MBD announces relevancy objections to plaintiffs' Ex. 1, 3, 5, 6 and 7 (Barrett and Dixon reports)
Further argument re: relevancy of Barrett's file which contains employment records, introduction of gun onto compound; further objection to hearsay within hearsay in Barrett file
Barrett file admitted over objections of relevancy; not admitted for truth of statements in file from other persons
Barrett file admitted for limited purpose only
MBD announces no objection to plaintiffs' Ex. 2 (DOC's policies and procedures) except relevancy to any document subsequently enacted
MBD raises hearsay and relevancy objections to plaintiffs' Ex. 4 - biased jury presentation
DL relies upon report which describes supervision in 3 areas being serious due
to lack of security personnel
Nimkoff admits grand jury report over objection
MBD objects to plaintiffs' Ex. 8 on hearsay grounds relative to Turner; it admits but not for purpose of establishing truth of matters stated by Peters MBD announces hearsay objection to any statements other than the authors Nimkoff admits it as establishing only truth of statements of investigation, not of what was told them; Lipman offering it to show that Dixon was not well investigated prior to hiring and to establish a specific instance of contraband
MBD announces no objection to plaintiffs' Ex. 11 except as to truth of statements therein (psychiatric reports on inmates from DOC)
No objection to plaintiffs' Ex. 12 (Flap A) so long as offered to show that Mrs. Saunders called GCI a number of times
62

32

No objection to plaintiffs' Ex. 32 (legislative request)

32-3

No objection to plaintiffs' Ex. 33 (incident reports and use of force reports) so

long as not offered to prove truth of hearsay statements

34

Plaintiffs' Ex. 33 admitted without accepting truth of inmates' statements

therein

34

Plaintiffs' Ex. 34 and 35 previously admitted; no exhibit 37; 38, 39 and 42

previously admitted or addressed

35

ALAN M. WAGSHUL/DIRECT

46

Plaintiffs rest subject to introduction of Dixon material

48

WMM moves for dismissal

49

WMM moves to decertify the class for lack of a representative present

51

Nimkoff denies dismissal

52

Nimkoff denies motion to decertify

52

WMM advises court of inmate witnesses for defendants

55-6

MBD suggests a deposition at GCI to avoid subjecting inmates to press

57

Nimkoff orders depositions

59

Nimkoff indicates depositions to be taken at GCI unless parties agree otherwise

61

Defendants expect to be finished by noon Friday

63

66-67 68 69 69 70 71
72 74 74 74 75 75
76
77
77
78 78
78
79

TRIAL TRANSCRIPT - VOLUME XVI (R-22) (12/11/85)
DL requests that Pis. be present at depositions of inmate witnesses for defense
Ct. views request as appropriate
DL announces that he has no clients presently at GCI
Ct. suggests depositions be held in courtroom
Ct. inclined to grant proposal; depositions to be open to press
Amlong asks Nimkoff to take judicial notice of Section 905.28 F.S. that grant jury reports not be made public without time for response by any interested person
Ct. takes judicial notice of statute
RANDALL MUSIC/DIRECT
Randall Music, Superintendent GCI
Friday is last day in post
On Friday he will be Superintendent at Cross City
3 years in Marine Corps, 24 yrs. in reserves; employed with DOC since 9/61 at FCI, Marion Correctional
Next assignment Sumpter 1965-1974; FSP, 18 months; Cross City 7 yrs.; FSP, 18 months; GCI
Last position at FSP was Chief Correctional Officer; came to GCI as Superintendent on 10/15/84
Chief Correctional officer is in charge of security and under two assistant superintendents and the superintendent
At Cross City he was Chief Correctional Officer
Superintendent's duties are to maintain institution according to rules and regulations and answers to regional director and secretary
Superintendent has various department heads under him: business manager; food service director; personnel manager; maintenance head; security head
At GCI there is an assistant superintendent who has direct charges of all department heads except personnel manager, security chief and business manager, who Music has chosen to report to him

79 80 80 81 81
82 82 83
84 85 85 86
86
86-87 87-88 88 89 89-90 90-91

Business manager is in charge of moneys, purchasing and accounting
Personnel manager is responsible for hiring new employees, training, maintaining personnel files
Chief correctional officer is responsible for security and inmate welfare
GCI presently has 240 employees and 874 inmates
Each superintendent functions differently; Music operates through chain of command; each department head is responsible for his department; security reports to him daily
Each department head holds at least monthly meeting with his department; superintendent holds meeting with department heads each month
Superintendent has authority to recommend a transfer inmates
Transfers of inmates can be positive (inmate requests transfer to be nearer home) and each inmate is reviewed every 6 mos. when he can request transfer; if recommended he may or may not get it approved
Negative transfers are those made to get rid of problem inmates; some are transferred for their own security
Inmates request positive transfer from classification supervisor
Florida prison system is overcrowded and inmates can be transferred only when bed space is available
Superintendents can swap off inmates by contacting each other in respect to inmates each would like to transfer. Swap offs must be approved by Tallahassee
Superintendent cannot transfer without approval of Carmichael in Tallahassee.
Only other transfer is from outside internal investigator
He has had Carmichael refuse transfer requests
He has inmates currently in PC at GCI who he has been attempting to transfer for up to 3-4 mos. Cannot transfer these inmates due to lack of space
PC is given to inmates who request it from the shift supervisor; written statement is requested
PC is sometimes used manipulatively by inmates seeking a dorm change
If inmate indicates he has problems but does not specifically ask for PC he does not necessarily receive it

91 92 93 93
94 94 95 96 97 97 98 98 99 100 100-101 101 102
103

When inmate request PC from an officer he is referred to officer in charge who attempts to obtain further information as to reason for seeking PC
Identities of harassing inmates are sought to prevent further harassment to others and to avoid manipulation
10-15% of inmates at GCI who request PC reveal identify of harassing inmates or occasions of harassment
When he came to GCI, the fence was in front of windows of confinement building to obstruct vision and communication and prevent introduction of contraband; it was not always successful
Music had razor ribbon added to increase effectiveness; this keeps inmates from sliding under fence but now they go over fence
Currently 14 staff vacancies at GCI; they have undertaken recruiting drives
More difficult to maintain staffing levels during cane cutting season due to higher pay in cane
Officers who leave to cut during season sometimes return; seasonal leave is listed as vacancy and on return he is listed as a new employee
139 staff members are correctional officers
He has encountered problems with some staff including some who were at GCI when he arrived and some he hired
Three employees have been serious problems; he acted to terminate all 3; not all sustained
Some good officers draw complaints by manipulative inmates
There must be an investigation of complaint and usually a predetermination hearing under union procedures
False accusations against officers are neither rare nor common; false accusations are usually made if officer is firm
Besides dismissal, he can give a verbal or written reprimand; suspension without pay for 3, 5 or 10 days; loss of rank
Suspension of employee requires advising employee of his rights, consultation with Tallahassee legal and a predetermination hearing
Hearing is before a board of superintendent, ass't. superintendent, chief correctional officer and personnel manager and requires 14 days notice with appeal process
He has had to reinstate a person he terminated who won on appeal

103 104-5
105 107
107-8 108 108 108 109 109 110
110 110 111 111 112
113 113-114
114

Contraband has been a constant problem at all state facilities where he has most stringent security
When he was at FSP he once received a tip from an inmate to check a particular truck. He checked truck when it entered compound and found two sawed off carbines and clips of ammunition
He has often had inmates give him weapons in prison
Among contraband he has confiscated during his prison career at FSP were electric zip guns; factory made knives, homemade knives, alcohol, marijuana, pills, cocaine
At Cross City he confiscated one gun, homemade knives and marijuana
GCI may be more vulnerable than other institutions since about 400 inmates go through gates daily
He utilizes frequent shakedowns of squads coming in to control contraband
Outside squads include DOT squad, sugar cane squad, cannery squad
Outside squads are a major source of the introduction of contraband
Squads are pat-searched daily; DOT squad is strip searched on a selective basis
They search visitors and refuse entry to visitors who refuse search; they have arrested visitors who bring in contraband; they strip search inmates leaving visitor park
Contraband introduced over fence is a continuing problem
Spot checks are conducted to uncover contraband in the compound
Dorms are searched by moving inmates into dayroom and having 20-30 officers search all belongings
Informants are sued to locate contraband
Buck and drugs have always been a problem in prison as long as he has been an officer. FSP is a single cell, cell block prison with no outside workers and only kitchen and maintenance workers within. Yet it has problem with buck
He measured bathroom in the classification office. It is 51x53 inches; door opens inward; has sink and toilet
In respect to Larry Brown an informant advised Music that inmate in Brown's bunk was a problem keeping other inmates awake with his homosexual activity
Music had the Lt. in charge bring Brown in for protective custody

114

He received requests from Brown for protective custody after he had had

Brown picked up

115

He goes into compound daily; he does not condone sexual assaults

115

Only recalls one problem of alleged sexual assault that he has encountered at

GCI (Brown); he has found sexual assault problems at other institutions

116

Cross City has more sexual assaults, FSP less

116

He has Sgt. Bradley give orientation to all new inmates

116

Transits to not receive orientation

117

GCI is a holdover institution for inmates coming into South Florida; transits

stay 203 days

117

CROSS EXAMINATION

118

Investigation of Brown's claim has not been completed; only recently did names

come up

118

Some of the individuals alleged to have assaulted Brown are gone

119

He became aware of the alleged incident with Brown but did not learn of

names until the trial

119

His response was to put Brown in PC and turn matter over to Lt. Peters

120

Brown was referred to a psychiatrist at GCI; he recalls reading report, but does

not recall outcome

121

Does not know how Brown came to be transferred back to GCI; Music became

aware of transfer back when he received a request from Brown

122

He discussed retransfer of Brown out of GCI with his classification officer

several seeks ago

122

Brown presently remains in PC

123

Inmate informant was a black; Music will not give name

126

Ct. indicates that it can hardly use the evidence of Brown as a basis for

injunctive relief

128

Sustains privilege of informant's identity although he indicates that he may

draw an unfavorable inference for it

129

Music would have concern over safety of an inmate viewed as a snitch

131

It is unusual for inmates to real identity of assailants

131
133 133 133 134 135 135 136 137 141
142 142 142-143
143 143-144
146 146-7
147 148 148

FSP has fewer sexual attacks because of single cell organization; all inmates at FSP are close security; 6-8% of the GCI inmates are close security
GCI has largest proportion of Hispanics of the institutions he is familiar with
Most inmates prefer to be closer to home
7% of inmates at GCI are Hispanic Informant on Brown had history of reliability in regard to homosexuality, contraband and assault
Brown did not discuss rape with Music; his request was for transfer
Lt. Minor interviewed him in regard to allegation of rape
Lt. Minor did not believe it was a forcible rape
Rape is one of the more serious abuses than can happen to an inmate
Changes he had made at GCI besides razor wire behind fence: new equipment for kitchen, new tables, fans and stoves; new lockers for D form; lowered double racks down for better observation; planting of shrubbery and placing boundaries to keep inmates off grass; bought new vehicles for better security and transport; renovating the existing towers; general painting and cleaning up
D dorm has 3 double rows of bunks; he lowered end bunks which lessened passage way but increased visibility
Lockers cost $70+ each; over 100 lockers in the dorm
Idea for dorm modification was his based on his military background; also for security reasons
He did not make modification for 6 mos.; had to have money to do this
He instructed that sheets were not to be draped from top bunk; he has
not seen sheets being so draped so he assumes it is not done
He implemented a different check out policy and a pass procedure
He does not place PC inmates with AC inmates; this policy was same as was in effect previously Some confinement cells are designated PC
There are 15 bunks in PC
If inmate does not have a bunk for more than 24 hours it must be cleared with regional director as an emergency

148
149 149
150
150-151 151
152 152
153
154 155 155 156
156 157 158 158
160 161 161-162 162

Pass procedure requires inmate to have a pass anytime he is not on his assigned job
This policy was instituted 6 mos ago
This policy was instituted to protect female workers from inmates who were hanging around classification area
Inmates not allowed more than $25; this is same policy at other institutions except FSP
Negative transfer is for inmate with problem behavior or a need for protection
He can request a specific institutional assignment for a negative transfer but more often than not it is denied
Initially, his requests were approved about 50% of time; now 3%
He recommended Larry Pryor's transfer due to incident reports and sources of information
Any superintendent when he first comes into an institution tries to clear out problems
During his first 6 mos. he transferred 5-6 negative transfers a month
Ron Jones, his immediate predecessor was an acting intern
He had several discussions with Ron Jones
His technique and that of Jones differed; Jones put everything in writing; Jones would be personally friendly with inmates; Jones had different priorities for use of money — fill dirt under bldgs. redo kitchen
Jones did not advise him of negative inmate transfers
Does not recall if Jones identified any problem staff
He did not have meetings with Turner since Turner was gone
He attempted to terminate one officer after taking over — officer had fought
with inmate
He was pretty successful at swapping inmates
REDIRECT He was more successful in obtaining funding for capital expenditures
than the institution had been previously The transfer of 5-6 inmates a month that he effected were of problem inmates and PC inmates

162 163 164
165 166 167 167 167 168 168 168 169 169 170 170 171 171 171 172 172 172-3 173 174
175

He was more successful at swaps in his first period at GCI than later Coupon system at FSP was not wholly successful Some of the inmates he transferred out negatively were ones who were at GCI when he arrived, others came after he arrived Pryor was transferred as a result of a particular incident JAMES FERGUSON/DIRECT Inmate felon Confined at GCI for 4 years from 6/81 Presently at Beckman Hall Community Work Release Knew R. V. Turner at GCI Always found Turner easy to approach for job changes, food matters, etc. He was helpful to inmates Saw Turner several times walking about compound Saw him at Sunday Christian program Both Nappi and Bradley were excellent officers He worked on cane squad and DOT squad, as houseman and in slaughter house Never had trouble with whit or black inmates Does not recall Blacks ganging up on Whites Also served time at Martin Vocational Center and DeSoto Correctional Inst. FERGUSON/CROSS EXAMINATION Had trouble at DeSoto -– White v. Black riots but not at GCI He volunteered to come testify because he knew Turner Those who had been at GCI were questioned as to what their opinion was WM asked their opinion, whether they were mistreated, how they found Turner; told them that they did not have to testify Has no knowledge of particular incidents alleged

175-6 176 177
177 178 178 179 180 180 181 181 182-187
188 189 191 192 192
193

He identifies two of the Plaintiff's inmates as ones who would borrow money regularly and then check into PC
Did not like CO Dixon; he had bad attitude
He told Turner his view of Dixon; Turner said he would have talk with him; Dixon was pulled into the office and talked with; after that he had no more problems of harassment
Dixon would push him to make him lose his cool
Entered system inl98l at Lake Butler, then DeSoto
Never snitched while at GCI; does not believe in snitching
Snitches don't live long in prison
RAYMOND TAYLOR/DIRECT
Felon
First assigned to RMC 6/80 for 6 mos.; then sent to GCI
Went through one day of orientation
First incident that stuck in mind occurred 3rd night in C dorm after he was asleep. His bunk was near restrooms, top bunk. He was awakened by someone shaking his bunk. Saw 3 inmates. Asked if he had light. Said no. They said they needed to see him in bathroom. One in bathroom had fly open. A friend name Ostein got up and went to Wicker and told officer he was sick and asked to go to the infirmary. Officer in Wicker called another officer to take him. Officer then walked back toward bathroom and the other inmates split. Ostein returned and told him that he reported to the Lt. or Sgt. Did not sleep rest of night. Wicker officer made rounds every 10 minutes.
He was told by next shift officer that he would be moved up to a bunk next to Wicker
Talked for half hour w/Lt. Peters who called him in and reviewed incident reports of night before; told him about P/C
He told Peters he would go into P/C
He was in PC 1 1 / 2 - 3 weeks
During time he was in PC, most confinement inmates were Ac; most of the time there was only 1 inmate to a cell; it it got crowded they would put 2 PC together
Never had any fear for own security while in PC; PC inmates would not be lit out to shave and shower with DC inmates

195
196 196
197 197 197
199
199-200 200 201
201

Officers in dorm acted appropriately in respect to him and he appreciated it; Wicker officer kept him constantly under surveillance
TAYLOR/CROSS EXAMINATION
Convicted of Murder in 1980; received life; presently at Baker Correctional; has mandatory 25 year sentence
Convicted of attempted escape in 1984 from Polk
Received 5 yrs. concurrent for escape
First he heard of suit was when notices were posted. Member of Atty. Gen'l. office named Craig spoke with him at Baker 6-8 mos. before trial He told Craig that in his opinion the officers at GCI were not callous or indifferent
He was asked about a week before trial to come to Miami and testify
Arrived at GCI 3/81 or 4/81; stayed 3 weeks
His reaction to the inmates who threatened him would have been no different if they were armed
Most of other inmates in PC were white but some were black

TRIAL TRANSCRIPT (R-23) (12/12/85)

207

Discussion re: Dixon documents

208

DL spoke to both Dixon and his attorney

210

Nimkoff states he will sign order requiring clerk of court to provide Dixon

documents for in-camera inspection

211

Nimkoff agrees that documents, if received after close of trial can be received

for consideration

212

DL announces no objection to calling inmate witnesses; requests inmate witness

files

213

WM advises Ct. of logistical difficulty of getting files; also files are not

relevant

214

Nimkoff acknowledges that relevance may be slight but indicates files should

be provided

215

Nimkoff grants request; WM asks for time frame for production

216

Nimkoff leaves it at "as expeditiously as possible"; acknowledging files are not

readily available

216

RONALD JOHNSON/DIRECT

217

Felon; assigned to GCI, UCI, Sumter & RMC; presently at Beckman Hall;

immediately previously at Martin Correctional as a transit

218

Before Martin, he was at GCI for 2 1/2-3 yrs. (1982-3/85)

218

At UCI he was in kitchen and shoe shop

219

He had a number of DRs at UCI; he did not have a lot of DRs at GCI

219

UCI had a wild living atmosphere; he settled down at GCI

220

Taken under wing by Sgt. Bradley when he arrived at GCI; put on yard work

detail

221

At GCI he also worked on DOT crew, boiler room and harvester crews

221

He was close custody when he came to GCI; he became minimum custody 9 mos.

later

222

Participated in J.C. program at GCI

222

Participated in A.A. program at GCI even though he was not an alcoholic

223
224
224 225 225 226 226
227
228 228 229
229
230
231 231 231-2
232 232 233 233 234 235

First contact with Turner, he went to Turner and advised identity of inmate who hit guard with a rock; Turner had inmate apprehended
He would see Turner walking compound; talking with inmates at breakfast and at Church services Turner a pretty fair superintendent
Turner gave him encouragement not to give up
RONALD JOHNSON/CROSS
Convicted of robbery in 1977; life sentence; prospective parole date 10/29/87 Heard of case from other inmates; spoke to attorney who came asking if he could ask questions - WM
WM asked his view of GCI - good or bad; no one discussed matters of the lawsuit
Buck was frequently available on compound
Marijuana was available but not as readily as buck He had both marijuana and buck in dorm; but did not tell Turner of its presence Turner would come to dorm with other officers and ask inmates to turn over drugs, buck and weapons before a search He observed weapons on compound; they were not very easy to obtain; he did not have a weapon
Weapons included knives, zip guns and pipes When guards learned of weapons they apprehended them Inmates at GCI would get weapons by filing down an old piece of metal or
have one thrown over fence
He does not know of any officers who were aware of weapons
There are more weapons at UCI
There were gangs at GCI ~ White, Cuban and Black
Johnson did not belong to gang
There were 20-30 inmates in the JC program
About 1/2 - 1/3 of the inmates in JC were white

235

The athletic director was in charge of movies

236

THEODIS MITCHELL/DIRECT

236

Currently at Beckman Hall

237

Convicted of a felony

237

Over a period of 4 years he spent 3 at GCI; was at Hendry in between

237

Did not know Turner personally; saw him on compound, not frequently because

he was not on compound himself that much

239

Worked at meat packing plant

240

DL asks opportunity to speak with Brierton before he testifies

241

DAVID BRIERTON/DIRECT

242

Inspector General of the DOC in Tallahassee since 1979

242

Undergraduate at Loyola Univ.; Masters from Chicago State; Fellow at criminal

justice center, Harvard Law school; consultant in 30 states; entered corrections

in 1959 as a guard

243

Warden at Stateville, 111.; went to FSP 1977 as superintendent

244

Left Harvard 1973 to go to Stateville

245

Inspector General does all criminal investigations relating to prisons; internal

affairs investigations, internal audits, grievance appeals

245

DOC has 12,000 staff; 28,000 prisoners

246

IG's office has 59 personnel

247

He reports directly to the Secretary

247

Familiar with GCI

248

GCI has minimum, medium and close custody inmates; generally equivalent to

UCI but not FSP

248

GCI has an older plant; inmates are more similar to those at UCI than

Zephyrhills or Polk

249

A number of institutions in Florida use open dormitories

250

The IG's office inspects each prison once a year

251

They also conduct 5 or 6 complex management reviews each year using 20 or

more personnel

251 252 252
252
253 255 255-6
256 257 259 259 261
262 262 263 263 265 266
267
269

Normal yearly inspection involves a 2-5 man team and takes about 5 days
He has reviewed GCI inspection reports; they do not show that GCI is out of control
Purpose of inspection is to find out what is wrong at an institution, not to compliment the superintendent
Inspection reports will usually contain more notation of what is wrong than what is right
GCI not worse than the majority of prisons in the country
Inspectors come from another area than where prison is located
There is a problem of inmate assaults in Florida; most states do not collect data,
Fla. does
Greatest problem with assaults is under reporting
As institutions go up on custody grate assaults increase
Def.'s Ex. 4 - graph of statewide assaults
GCI has more assaults than some institutions, few than others Homosexuality in prison: some are lifestyle homosexuals, who would be homosexual out of prison; some are situational homosexuals who ar such because of the environment; some are coercive homosexuals, violent or nonviolent
Homosexual rape is a crime of dominance rather than sex
Coercive homosexuality is a problem in all prisons in Fla.; not necessarily more predominant in prison than the free world
Superintendents have less discretion in controlling homosexuality in prisons
Not possible to take punitive action against people in prison for homosexuality
Reducing violence in prison is a balancing of interests — imposing too many restrictions can have adverse effect
Prisons contain by their nature a higher percentage of violence prone persons than society as a whole
Just because an inmate is reported to be a wolf does not allow him to be restricted
Difficult for a young inmate to come forward and report being raped

270 270-1 271 271 273 274 275 275 275
277 277 277 278 278 279 280 281 281
283 283

Necessary to gain input from staff and other inmates as to such occurrences since it is not often reported
Inmates seek PC for various reasons — gambling debts, drug deals, assaults
If a person claims to have been raped it should be treated as a criminal matter; need to get medical evidence, statements
If its one person's word against another, the States' Attorney will usually not prosecute
Officers in system sometimes introduce contraband or used excessive force
Before dismissing an officer he must be given a predispositional hearing; entitled to appeal process
DOC has often had fired employees ordered reinstated
Superintendent does not have the power to terminate an officer on the spot
Inmates are assigned to institutions along several tracks: one is basic reception
track, another is transfer (court ordered, medical, statewide, emergency)
Superintendent does not have authority to transfer
All usual transfers are approved in central office; only investigators have authority to transfer immediately Superintendents do not have any discretion as to whether he will receive a prisoner 28,000 prisoners in Florida system
Transferring a problem simply gives someone else the problem
Florida system is running right at its absolute maximum capacity
Classification factors include crime, length of sentence, past history, age, proximity to home
Proximity to home is important in respect to rights of family
Racial balance is attempted
Superintendents have some input into racial balance to extent that they can ask regional director to correct a seriously skewed situation
All Florida facilities have applied for ACA accreditation and have been accepted at one time
FSP was not accredited while he was there; it had just begun the accreditation process

284
285 287 288 290 291 293 301-2 304 308 309 310 312 314 316 316-17
319 319-20 320

Prison inspectors are not part of Inspector General's office; they report directly to Superintendent
CROSS EXAMINATION
Not all incident investigations are undertaken by the IG's office; some are made by prison investigators
Not unusual for FBI to undertake investigations
FBI did undertake investigation of an assault case in 1983-4 at GCI - Barrett case
The IG's office undertook investigation of incident and in middle of investigation, Barrett quit; evidence was given to State Attorney
Barrett at time of incident was acting chief correctional officer
He does not recall what Peters involvement was
He met with State Attorney when Grand Jury investigated GCI in 1980
Grand Jury report primarily concerned missing inventory items
Brierton is shown Plaintiff's Ex. 6 - Inspector General's inspection report on GCI for 9/19-21/83
An extensive management review was done at GCI for period between the inspection of 1980 and that of 1983
Inspector General's office began in 1980
Superintendents have opportunity to reply to or rebut the criticisms in the reports
The conclusions in GCI report of 1983 was not atypical of inspection reports generally; reports meant to be critical
Does not know if turner reviewed the report conclusions with IG's office since it would have been handled by a subordinate
Inmate on inmate assaults are more under-reported than guard on inmate
assaults but he does not know how much
Classical ethics that used to exist in prisons no longer do
In years past, 6 or 7 inmates in lockup would be high in a prison; today prisons in some states have 20% in lockup because they do not feel safe Inmate on inmate assaults may be reported less due to intimidation

322-23 325
326 328
333
335 336 337 338 339 340 343 343 343
346 346-7

Restrictions on administrators because of due process considerations make it more difficult to control wolves
Rape is a dominance based crime
Important to look carefully at a prisoner who says he has a "boy" or "girl" and is not a lifestyle homosexual; such person is likely to be a wolf.
When rapes are not reported a superintendent will sometimes hear about it from informants; he may also catch an assailant in the act
Verbal sexual references made to other inmates do not necessarily suggest homosexual assault activity
It may be posturing, joking or intimidation
Inmates gathering at shouting at incoming inmates getting off a bus may suggest many things but not that homosexual assaults are more common; this is common at 50% of prisons in the country
A goal of prison management is to minimize rapes
Hanging sheets around beds occurs at every institution he inspects; when sheets are taken down by prison officials, inmates file grievances
Prisoners put up obstructions around their beds to obtain a sense of privacy
Two schools of thought on showing pornography in prison: one that it is inciteful and one that prisoners are old enough to handle it
Selection of movies is a delegated responsibility and superintendents often do not know what is being shown
"Free flow of contraband" is an undefined term; in prison, virtually everything can be fashioned into contraband weapons; it is very difficult to control
It is very difficult to know how much contraband exists at an institution
Shakedowns are very costly and produce hostility among prisoners; it raises stress level
Brierton was notified by one of his investigators of the Barrett incident;. He sent investigator over immediately and came himself to oversee investigation a few days later
With an alleged rape, unless one knew of the perpetrator one could not take it to the State Attorney
Generally it is not advisable for a Superintendent to become personally involved in a rape investigation; it is a very risky management style

347

He would ordinarily expect that a rectal exam would be provided unless the

victim objected

348

Lipman poses hypothetical question regarding his trip to GCI — hearing on

LaMarca's case involved only his claim that he had unfairly lost his privileges

due to fighting. LaMarca afterwards voiced concern that some of his friends

were intimidated sexually and the Attorney General indicated that the matter

would be investigated.

351

Brierton would expect that someone would interview the alleged inmate victims

353

These allegations would not ordinarily be reported to the IG's office

353

Inmates on occasions make false allegations of rape

354

It is not the role of the IG's office to issue a positive report on inspection; role

is to find problems

TRIAL TRANSCRIPT (R-24)

(12/12/85)

¾0

LEO PETERS/DIRECT

361

Institutional Investigator for GCI; began with DOC in 1976 at UCI; investigator

at GCI since late '81 or early '82

362

Function: to investigate criminal activity at GCI and, to limited extent, to

undertake internal affairs investigations

362

Investigative actions involve rapes, assaults, possession and smuggling of

contraband

363

Contraband can enter any prison by various means — visitors, inmates etc.; GCI

has 400 inmates on outside work squads; staff occasionally becomes involved in

contraband

363

Contraband can be created within a prison — buck and weapons

364

He has found buck made in bathrooms, trash barrels, vehicles and buried in

ground; at UCI he found it in the tank of a toilet

365

Control of the introduction of contraband at GCI: shakedown searches — pat

searches and strip searches of work squads and visitors; searches of workers is

done daily

366

Inside compound, random dormitory searches were used; Sgt. Bradley discovered

a 20 gallon container burred under a trailer

367

Sgts. Nappi and Bradley were assigned the duty of uncovering contraband; they

were compound police sergeants

369

Visitors are pat searched and all possessions are inspected; hand held and walk

through metal detectors are used

369

Possession of some contraband is a violation of statutory law, some is a

violation of administrative code

370

Contraband which is a criminal offense leads to request to Sheriff's office

since Peters does not have arrest powers

371

From 1980-84, there were 13 criminal prosecutions of visitors for introduction

of contraband

371

Contraband such as a pocket knife or money is not a statutory violation; it is

temporarily held during visitation

373

From 1980-84 there were 14 criminal prosecutions of staff members for

introduction of contraband

374

There have been a number of instances where people have thrown contraband

over the fence

375

Turner's attitude toward contraband was that everything possible should be

done to contain it

376

Every Monday morning there was a staff meeting with Turner to discuss

administration matters including contraband

377

Inmate violence was controlled by criminal prosecution

379

Another method for control of inmate violence was by removal of perpetrators

from GCI

379

Removal of perpetrators was done on a fairly regular basis

379

In respect to prosecution, it was necessary to determine if there were staff

witnesses; if so, the State Attorney was notified

379

State Attorney required at least one staff witness for prosecution

380

State Attorney declined to file cases without staff witnesses

381

Informants were used to locate contraband and advise as to acts of violence

381

Peters would become involved in internal affairs investigations if it did not

involve civilians, i.e. non-employees

382

First fights were not handled by Peters but by line officers; he investigated

homicide, injuries with serious physical damage, stabbings

383

Investigations of inmate on inmate violence was often hampered by refusal of

inmates to testify

383

He investigated, along with the PBCSO, Andrew Jackson for extortion

384

Investigation of Jackson was initiated when an inmate being extorted by

Jackson reported it to Turner

384

He removed inmate informant from GCI; advised Sheriff and undertook

investigation

385

In course of investigation he took statement from Harper at Zephyrhills

386

He did not discuss Levi Fisher with Harper

386

He investigated the Cobb/Pryor incident; he was advised about 7:45 a.m. of

incident to Cobb, but there was no suspect

387

There were no staff witnesses to actual assault; they arrived when melee was

taking place among several inmates including Cobb and Pryor

387-9 390
391 392 394
395 395 396 396-7
397 398
399 400
401 402-3 403

He advised State Attorney who told him that without a staff witness it should be handled internally
He was involved in Dixon investigation in conjunction with a regional prison inspector on two occasions
Turner initiated the first investigation in respect to dealing in gold extortion based upon an informant
Prison inspectors administered polygraphs in course of their investigation; results were inconclusive
Second investigation also involved extortion scheme which came to attention of Randall Music; also alleged that Dixon was involved in marijuana sales
Gordon could not or would not reveal name of person who set his underwear on fire. He did accuse Dixon of contacting his wife. He would not reveal who beat him up on respect to third incident
At time that Gordon reported the Dixon matter, a regional prison inspector was conducting investigation
He investigated Levi Fisher in respect to assault on an inmate; as a result Fisher was transferred from GCI; this occurred under Turner
Fisher was engaged in homosexual activities with young white inmates
LaMarca first spoke with Peters about a change in job assignment because he could not get along with his supervisor; second occasions was after his escape when he claimed he owed money and was threatened
No action was taken in respect to the second matter since Lamarca was removed to the County jail
Peters and Barrett and another officer had attended the Blach gold Jubilee together. They were off duty and had been drinking. They received a radio call that all off-duty personnel should report to GCI because of a riot
Peters went immediately to infirmary to interview two inmates; Barrett went to the dorms
He interviewed several prisoners in respect to Barrett's introduction of a shotgun into compound and learned of excessive use of force. He called Turner who told him to investigate the matter thoroughly. This led to Brierton's investigation
Over the years he frequently found Turner in the compound
Staff were not intimidated by inmates
Bathroom in classification bldg. is so small that when sitting on commode he hit head against wall

405

He received a letter of reprimand from Turner for drinking in respect to

Barrett incident

408

I.G. inspector came to prison the next day after Barrett incident

413

Fisher, Pryor, James Roper were wolves; Andrew Jackson was not

414

Bone was a wolf

414

When he learns that an inmate is a wolf, he advises shift supervisor

416

He did not learn that Pryor was a wolf until he had been at GCI for awhile

427

He recommended removal of Pryor from GCI because of the Cobb incident

429

He made recommendation on Pryor transfer to classification

432

There were no staff witnesses to original Pryor/Cobb attack

439

Personnel department investigated backgrounds on employees

441

He told Gordon to go to postal inspector about Dixon because he felt he lacked

jurisdiction

442

He advised the state prison inspector of Gordon's complaint

442

He has no authority to request a polygraph exam; this is conducted by regional

prison inspectors

444

Sauder's allegations of rape were not reported to him

444

There is not a standard operating procedure at GCI for compound officers to

pass on allegation of rape to Peters

444

Peters receives information of rapes from victims, informants or staff

445

If inmate reported a rape to a compound officer, there was a procedural

obligation of the officer to report it to his immediate supervisor and so on up

the line

449

He has never encountered sheets obstructing vision in dorms

#

450

As long as he has been at GCI the policy was that hanging sheets and blankets

were not authorized

452

Dormitory officers on night shift were supposed to patrol dorm

452

Staff sergeants have duty of insuring that subordinates patrol properly

454

Patrolling from one end of dorm to other would take 5-7 minutes

455 456 458
462 464 464
465 466 467 467 468 468 469 470 470 473-4

Dorm supervisor and shift supervisor check on whether a dorm officer patrols properly
Has not heard of any officer being disciplined for not patrolling while an inmate was raped
Does not know how many felony charges have been filed against inmates with
State Attorney; there were some in November
Pryor/Cobb investigation was authorized by Turner
If inmate reported rape to a Lt., the Lt. would report to Peters who would obtain authorization from Turner Procedure for rape investigation: insure that inmate is taken to medical dept. for medical exam; speak with inmate to determine perpetrator; pick up perpetrator and contact Sheriff's office
He had one rape investigation in 1985; inmate subsequently admitted it was not forcible
He cannot remember 1984 without looking at files
There may have been investigations of rape in 1983 but he is not sure
He investigated another rape — of Willie Bogan — in 1981 or 82 in which a conviction was obtained
He does not remember any other convictions for rape
First heard of Larry Brown's allegations a week ago
He does not know if it is a violation of florida law to possess buck in a prison; it is an institutional violation
There have been a number of criminal prosecutions for possession of contraband at GCI but not buck
Drug possession is primary charge relating to possession of contraband
Trailer under which buck was buried was above ground with a crawl space; it was not visible from the watch towers

481 482 485
485 487
488 489 490 491 492
495 495 496
496-7
497 498
500
501 502
503

TRIAL TRANSCRIPT (R-25) (12/13/85)
PETERS/CROSS EXAMINATION CONTINUED
Turner was not at GCI on Saturday and Sunday
Turner's instructions in respect to rape reports was to advise Sheriff's office, make sure inmate received medial attention; identify and isolate perpetrators; isolate victim
Shift supervisor would be involved in assuring medical attention
He recalls one prosecutable incident of rape at GCI and also the most recent rape investigation
He cannot give a specific number of rape investigations beyond the two
Present population cap at GCI is 875
GCI has Johnson rape kits available for rectal examinations
Turner had a top priority of being notified of a rape or a serious stabbing
He recalls on two occasions Turner came to prison at about 3:30 am.m. because of incidents
RAYMOND MULALLY/DIRECT
Employed at central office, DOC; in charge of accreditation since 12/82
He has liason with the Commission on Accreditation, visits all major institutions and assists in their preparation for accreditation
Accreditation audits are held every 3 yrs.; he visits institutions in between audits twice
Before the audits, each institution goes through a self evaluation
Auditing standards of ACA: Def.'s Ex. 5 A-C, standards for 1978 and 1982 and annual supplement
GCI has been audited twice; he was present for both. First was in 10/80, second was 1/84
There were 3 members on auditing team; audit took 2 1/2 days
Audit consists of an orientation for the team, a 407 hour tour of the institution and a review of paperwork; during the tour and the review the team members will speak with inmates
For second audit, there were 449 Standards

504 506
507
507
509
514 519 520 524-5
526
529 532 532 534 537 537 538 538 539 541
542

Def.'s Ex. 6: audit reports for 1980 and 1984
During the first audit, GCI received the 2d highest score instate; it passed all standards
During the second audit, GCI passed all mandatory standards and95% of nonmandatory standard
Florida has 25 accredited institutions and 5 unaccredited; UCI lost its accreditation for fire deficiencies, 4 are new institutions
Audit standards cover about 10 areas: administration, personnel, confinement areas, food service, medical service, sanitation, counselling, education, physical plant, religious services
CROSS EXAMINATION - MULALLY
Standards are based on constitutional minimum requirements
Institution and inmates are notified in advance of the audit by 2 weeks
Initial audit tour lasted from 8:30 a.m. - 2:00 p.m. in addition, individual members viewed facilities; individual visits lasted from 15 min. to 2 hours During initial tour, the team ate lunch with inmates with no staff members present
Report found quality of life above average
MULALLY/REDIRECT
Inmates had no complaint of abusive treatment during the audit of 1984
Part of audit provides for listing of pending litigation
GEORGE LAWSON/DIRECT
Lieutenant and shift supervisor at GCI; 4-12 shift for 12 years
Shift supervisor's duties: patrol yard, dorms, holding area; supervise feeding
Under him are the Sergeants; under the Sergeants are the CO-1 officers
One of his duties is counselling the inmates During the 1980-84 period, he would counsel 10-20 inmates a week in regard to problems; equally divided between white and black
During 1980-84 there was a pass system in effect that required inmates to have written authorization to move from one area to another

543 543 544 545 545-6
546 547 548 549 550 551 552 555 556-7
557 558 558 559 559 560

During 1980-84 he encountered contraband on compound; mostly homemade knives They used constant shakedowns to control contraband
For an entire dorm shakedown, 8-123 officers were used and it would take 1-3 hours; during these searches, contraband was found
Daily searches were also used
As shift supervisor he has received 2 reports of rapes; on both occasions inmates were escorted to medical and an investigation was done; both turned out not to be rapes
Inmates transferred in are brought into visitor park which is 3-4 acres
He has never seen inmates gather to welcome transfers; he had standing instructions to his subordinates to keep area clear
At times, work details would come through at same time as new transfers
Pryor once asked him to talk to Cobb to leave a friend alone; he spoke to Cobb who told him the problem was over
He frequently saw Turner on the compound
Turner was present at monthly lieutenant's meetings
LAWSON/CROSS
ROBERT V. TURNER/DIRECT
Joined FSP in 1953; became member of business staff in 1954 for 6 yrs.; became business manager for 8 yrs.; took lateral transfer in 1970 and left department in 1971 for private firm; rejoined DOC in 1974 as business manager at GCI; in 1975 became assistant superintendent and, in 1976, superintendent. Retired from DOC on 7/31/84.
Originally GCI was a prison agricultural work camp in the 1930's
GCI was originally a group of wood bldgs.; it is now a brick complex on 5,000 acres
There are three secure compounds at GCI: recreational field, main compound and vocational compound; each is 11 acres in size
In 1974 there were 700 inmates; in 1980-84 period, it reached 920
He had no control over the population size
In late 7O's GCI became a close custody institution, beginning with 400 close custody inmates; by 1984, from 65-70% were close custody

561-2
566 572 573 574 576 578-9

Classifications in system: 1) maximum security (only at FSP) ~ can only be assigned to individual cells 2) close custody — can be out of secure perimeter only w/armed guard 3) medium custody — can be out of secure perimeter only w/guard 4) minimum custody — must be checked 4 times a day, but allowed out of perimeter w/o guard Institutional investigator reported directly to him GCI had a large industrial section; 5,000 beef cattle, large dairy, canning plant, soap factory, meat processing, 5,000 acres of sugar cane GCI provides up to 720 inmates each day for road work for DOT He was actively involved in GCI's JC program GCI was responsible for PBJC building a local campus nearby GCI had a number of programs available for prisoners to keep them occupied

TRIAL TRANSCRIPT (R-26) (12/13/85)

589

TURNER/DIRECT CONTINUED

592

When he came to GCI there were 15 confinement cells with 23 bunks all on one

corridor

593

Protective confinement began to grow in late 7O's

595

Important to assure that person admitted to protective confinement is not

seeking to get at person already there

596

Classification was required to review request for PC within36 hours to

determine if inmate should remain in PC

596

Classification team for PC review had 3 men; recommendation would go to

superintendent

597

Originally the 23 bunks were for PC, AC and DC; PC was originally a category

of AC

598

GCI was not built for close custody

599

Staff originally was not trained to handle close custody

600

On one occasion he appeared before Senate Correctional Committee on his own

to complain of problems

601

Two over-riding problems were lack of staff and physical plant

603

Appeared before Senate Committee on 3 occasions; wrote to Wainwright;

appeared before House Committee and Joint Committee; supplied complaints

through monthly reports

604

Def's. Ex. 7: monthly reports with first pages included

606

He was successful at getting money left over from other projects in DOC

budget

606

GCI budget request was never fully funded

607

Fiscal budget for '83-85 was prepared in 1981

607

He also obtained funds outside regular process — Carter administration public

works funds

608

His budgetary requests for an increase in confinement were denied every year;

he was able to increase it to 30 cells with funds left over from other DOC

projects

610 611 612-3 613
616 617
618 618 621 622 622 623 624 625 625 626 630 631 636-7
636-7

Obtained authorization to purchase a van to transport employees from WPB; many recruits did not want to live in Belle Glade
Attempted to recruit from some newer institutions
Obtained funds for a single-officers quarters
All officers are given a minimum of 320 hours of training within the first 6 mos. and 40 hours each year thereafter; GCI added 40 hours of initial orientation
Contraband was an endemic problem due to the hundreds of inmates working outside and the visitors
There were 300 visitors on visiting day; it would have produced resentment to strip search them all
Marijuana sniffing dogs were used on a trial basis
They had to stop using brooms from Fla. School for Blind because wires could be used as knives; inmates drank ditto ink and windex
Putting additional officers in visitors park to counter contraband meant removing them from other positions
Electronic metal detectors and hand detectors were used in respect to visitors; inmates were searched after they visited in park
Surveillance was primary technique for controlling contraband in compound
Marijuana sniffing dogs were also used, but they did not work well
They used shakedown teams to search the dorms
Search of a large dorm took 30 man hours
They used confidential informants; sometimes informants were reliable, other times they were not
During his time at GCI, they recovered 5 factory built weapons
Primary problem of inmate to inmate relations involves borrowing money
A section in B dorm was used to house inmates who were potentially vulnerable
In an effort to increase staffing, he asked Regional Director to appoint a committee to analyze personnel needs. This was done; Committee agreed with need to increase number of dorm officers; this was never approved
A & D dorm house 240 men each; B & C dorm house 170 each; E dorm houses 88; staffing level provided for 2-3 men per dorm per shift

638 640
643 644-5 645 646 647 648 649 650 650 651 653 654 657 658 661 662 662-3

There was a post order forbidding the hanging of blankets and other visual obstructions in the dorm
With the number of prisoners up to 920, it was impossible to avoid the double
bunking
The post orders required that officers patrol the dorms
Originally, he had problems with the arrangement and number of cells allotted to PC, AC & DC; this was improved by expansion GCI had an institutional procedure which required that PC inmates be separated from others; it did not always work perfectly because of crowding
He added an exercise period and library privileges for confinement inmates
It was necessary to rely heavily on over time at periods due to staff shortages — at one time 35 of 108 CO I positions were unfilled
Wood fence was put up to screen confinement windows
Transfer during much of period he was there was difficult because many new institutions which came on line in the 80's were not yet open
Transfers recommended due to inmate behavior had to be made through swaps since there were no vacancies for normal transfers
Many institutions in South Florida did not have facilities to accept problem inmates
Transfer of a problem inmate in a swap meant that one would receive back a problem inmate
Transfer of PC inmates was a particular problem because other institutions did not have adequate facilities available
At time of Barrett incident,he was off the compound in training facility; returned an hour afterwards
The Assistant Superintendent relieved Barrett a half hour before Turner arrived at compound and sent him to control room
After Turner arrived, he reviewed situation; had Barrett remove makeup; obtained his version of events and sent him home
Information from informants regarding Dixon led to Turner initiating an investigation
Two investigations both proved negative; polygraph exams were used
Written request for background is sent to all former employers of job applicants; Broward County never advised of problems prior to hiring

664 666
666 673-4 674 677-9 680-82
686 687 688 691 696-8
699
700 706 709
711-712 713 715

In 1980-84 period there were only two charges of excessive force by a guard at GCI; one was Barrett; one was found to be unfounded by the IG
During 1980-84, there were 250 charges of excessive force made throughout the
system
Def.'s Ex. 1, 2 and 3: photographs
When Belitsky advised him of Nimkoff's proposed visit, he was scheduled to be in Tallahassee He discussed the visit afterwards with Arline and wrote to Nimkoff requesting a conference; he was not advised of any request by Nimkoff Def.'s Ex. 12: 2 letters - from Turner to Nimkoff and Nimkoff to Turner
The Grand Jury investigation grew out of a report from the business manager, Joe Parker, of a problem with meat inventories: GCI supplied meat to other state prisons. Turner notified legislative auditors whose reports were published in paper leading to Grand Jury investigation
Def.'s Ex. 13: 2 letters - from Turner to Wainwright and Wainwright to Turner
Subsequent to letters in Def.'s Ex. 13, the condition at GCI improved
There was a response written to Grand Jury report by business manager
TURNER/CROSS
Discussion regarding questions of Turner as to Arline or Belitsky's failure to communicate LaMarca's comments; objection that question assumes there was a communication to which only Nimkoff was a witness
Turner denies that communication of comments was made to him; objection made that there was no proof of comments being made; Nimkoff takes answer as meaning whether any comments were made or not
Not informed of Aldred's claim of rape
Not sure whether he filed a response to prison inspectors reports
Even if a rape is not reported there are ways in which it may be discovered — it could be mentioned by an informant; absent that it could not be discovered unless a person were observed with an injury
He gave verbal instructions to Peters to advise him of any rape
He was aware of several alleged rapes during his time, but they could not prosecute most because of lack of information
Did not investigate Aldred incident; did not know of it

716 717-8 719
722 725-6 732
735
743 743

He does not remember who summoned prison inspectors in Barrett incident
Does not know whether Aldred, Harper, Durrance or Saunders received rectal exams
It is possible that they may have requested that a polygraph exam be performed
by sheriff's office in rape case
Does not recall that Harper reported that he was raped
He did not raise with Atty. Gen'l.'s office the State Atty.'s failure to prosecute some cases since the State Atty. is independent Does not recall any officer ever being disciplined for allowing bed hangings; there probably was disciplinary action taken against officers for failure to patrol Mention in letter to Wainwright of lack of control at GCI meant that he felt
there were an insufficient number of officers to supervise and survey GCI
TURNER/REDIRECT
GCI had Johnson Rape Kits provided by Sheriff's office

 
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U.S. District Court
Southern District of Florida (W.Palm Beach)
CIVIL DOCKET FOR CASE #: 82-CV-8196
Lamarca v. Turner, et al
Filed: 05/14/82 Assigned to: Judge James C. Paine
Demand: $0,000 Nature of Suit: 550 Lead Docket: None Jurisdiction: Federal Question Dkt# in other court: None Cause: 42:1983 State Prisoner Civil Rights

ANTHONY #071588 LAMARCA plaintiff
[term 04/29/90]
v. R.V. TURNER
defendant 1 of 6

Stephen Forcey Hanlon FTS 224-8832 850-425-5610 [COR LD NTC] Holland & Knight 315 S Calhoun Street PO Drawer 810 Tallahassee, FL 32302 850-224-7000
William Robert Amlong FTS 523-3192 [COR LD NTC] Amlong & Amlong 500 NE 4th Street 2nd Floor Fort Lauderdale, FL 33301-1154 954-462-1983
David Michael Lipman FTS 667-3361 [COR LD NTC] David P. Lipman, P.A. 5901 SW 74th Street Suite 304 Miami, FL 33143 305-662-2600

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U.S. District Court Web PACER(v2.4) Docket Report
[term 04/29/90] GERALD ABDUL-WASI, in his
official capacity as Superintendent of Glades Correctional Institution
defendant

http://pacer.flsd.uscourts.gov/dc/cgi-bin/pacer740.pl

DATE #

DOCKET PROCEEDINGS
DOCKET ENTRY

3/8/94 -3/16/95 -12/11/95 -12/19/95 -8/14/96 -8/15/97 455
9/8/97 456
9/8/97 457
9/8/97 458

Case reopened (vpd) [Entry date 03/10/94]
Case closed (sv) [Entry date 05/19/95]
Appeal Information Sheet re: ; Transcript due 11/4/95 ; (kw) [Entry date 12/22/95]
Appeal Information Sheet re: Appeal ; Transcript due 1/4/96 ; (mr) [Entry date 03/20/96]
ACKNOWLEDGMENT of receipt by U.S.C.A. of: Certificate of Readiness U.S.C.A. # 95-5451 (mr)
ORDER (USCA on 8/12/97) GRANTING Appellees' motion for attorney's fees as to entitlement. This matter is REMANDED to the USDC for a hearing to determine the reasonable amount of fees to be awarded to Appellees. USCA #95-5451 Copy to Judge. (mr) [Entry date 08/19/97]
MOTION with memorandum and verification in support by R.V. Turner, Gerald Abdul-Wasi to tax costs against jury trial plaintiffs and class action plaintiffs (pa) [Entry date 09/09/97]
NOTICE of filing exhibits in support of plaintiffs' application for attorneys' fees and litigation expenses, by Anthony #071588 Lamarca (Attached) (pa) [Entry date 09/09/97]
MEMORANDUM by Anthony #071588 Lamarca in support of [456-1] motion to tax costs against jury trial plaintiffs

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9/12/97 462 9/17/97 459 9/22/97 460 9/23/97 461 10/9/97 463

and class action plaintiffs (pa) [Entry date 09/10/97]
NOTICE of by R.V. Turner, Gerald Abdul-Wasi that they have conferred in good faith to resolve by agreement, defendants' motion to tax costs and have not been able to reach resolution of said motion. (br) [Entry date 10/10/97]
NOTICE of attorney appearance for Anthony #071588 Lamarca by Stephen Forcey Hanlon as special fees counsel (br) [Entry date 09/18/97]
MOTION by R.V. Turner, Anthony #071588 Lamarca, Gerald Abdul-Wasi to extend time file pleadings (br) [Entry date 09/23/97]
ORDER granting [460-1] motion to extend time to file pleadings; dates set forth in stipulated motion shall control (signed by Judge James C. Paine on 9/23/97) CCAP (br) [Entry date 09/24/97]
MOTION with memorandum in support by R.V. Turner, Anthony Lamarca, Gerald Abdul-Wasi to extend time for serving pleadings (br) [Entry date 10/15/97]

10/14/97 464 10/14/97 465 10/27/97 466
10/31/97 473 11/5/97 468 11/5/97 469 11/5/97 467 11/5/97 471

RESPONSE by R.V. Turner, Gerald Abdul-Wasi to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 10/17/97]
ORDER granting [463-1] motion to extend time for serving pleadings ( signed by Judge James C. Paine on 10/13/97) CCAP (br) [Entry date 10/27/97]
MOTION with memorandum in support by Gerald Abdul-Wasi, R.V. Turner to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses, and for leave to file memorandum in excess of 5 pages (br) [Entry date 10/28/97]
ORDER granting [466-2] motion for leave to file memorandum in excess of 5 pages ( signed by Judge James C. Paine on 10/30/97) CCAP (br) [Entry date 11/12/97]
MOTION with memorandum in support by Anthony #071588 Lamarca for Evidentiary Hearing (br) [Entry date 11/07/97]
RESPONSE by Anthony #071588 Lamarca to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 11/07/97]
REPLY by Anthony #071588 Lamarca to response of defendants to plaintiffs' motion for fees and costs (br) [Entry date 11/07/97] [Edit date 11/07/97]
APPENDIX to: [467-1] response reply by Anthony #071588 Lamarca Vol II (br) [Entry date 11/07/97]

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11/5/97 470 11/5/97 472 11/21/97 474

APPENDIX to: [467-1] response reply by Anthony #071588 Lamarca (br) [Entry date 11/07/97]
APPENDIX to: [467-1] response reply by Anthony #071588 Lamarca (br) [Entry date 11/07/97]
REPLY by R.V. Turner, Anthony #071588 Lamarca to response to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 11/24/97]

9/11/98 475
9/30/98 476 9/30/98 -11/13/98 477 1/7/99 478 1/7/99 479 1/26/99 480 2/8/99 481 2/8/99 482

ORDER granting [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs, granting [468-1] motion for Evidentiary Hearing and referring case to Magistrate Judge Ann Vitunac to hold an evidentiary hearing and to enter a report and recommendation regarding 1) the proper amount of attorneys' fees and costs to be awarded to the prevailing non-jury plaintiffs; 2) the costs (but not fees) to be awarded to the Defendants as the prevailing party on the jury Plaintiffs' claims and 3) the amount of attorneys' fees to be awarded to the plaintiffs, as the appellees in the Defendant's unsuccessful appeal, pursunat to the order of the Eleventh Circuit, granting nunc pro tunc [466-1] motion to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses (signed by Judge James C. Paine on 09/11/98) CCAP (kz) [Entry date 09/16/98]
ORDER OF RECUSAL (signed by Magistrate Ann E. Vitunac on 9/29/98) CCAP (kz) [Entry date 10/02/98]
Magistrate identification: Magistrate Judge Barry S. Seltzer (kz) [Entry date 10/02/98]
ORDER Setting Hearing, set evidentiary hearing for 9:00 1/7/99 before Magistrate Barry S. Seltzer ( signed by Magistrate Barry S. Seltzer on 11/10/98) (wj) [Entry date 11/17/98]
(Courts)Exhibit and Witness list (pa) [Entry date 01/08/99]
Minutes of Evidentiary hearing RE: Attorney's Fees and Costs held before Magistrate Barry S. Seltzer on 1/7/99 (pa) [Entry date 01/08/99]
Transcript filed re: 1/26/99 Date: 1/7/99 Before Judge: Hon. Barry S. Seltzer Volume No.: I Number of pages: 1-228 (pa) [Entry date 01/27/99]
PLAINTIFF'S POST-HEARING BRIEF (at) [Entry date 02/09/99]
JOINT STIPULATION REGARDING SETTLEMENT OF COSTS by Gerald Abdul-Wasi, R.V. Turner, Anthony Lamarca (at) [Entry date 02/10/99]

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2/8/99 483 6/23/99 484 6/25/99 485

SUPPLEMENTAL MEMORANDUM OF LAW by Gerald Abdul-Wasi, R.V. Turner to: Plaintiffs' Motion for Attorneys Fees and Defendants' Motion to tax costs (at) [Entry date 02/10/99]
NOTICE of Filing of Supplemental Authority by Gerald Abdul-Wasi, R.V. Turner (kz)
NOTICE of destruction of exhibits (kw)

7/13/99 486 7/14/99 487 7/29/99 488 8/5/99 489
9/1/99 490 9/13/99 491 10/22/99 492 11/5/99 493 11/15/99 494
2/2/00 495 5/11/00 496 5/11/00 497

ORDER REQUIRING MEDIATION OF ATTORNEYS' FEES ISSUES (Signed by Magistrate Barry S. Seltzer on 6/24/99) CCAP [EOD Date: 7/13/99] (kz)
NOTICE of Supplemental Authority by Anthony Lamarca (kz) [Entry date 07/16/99]
JOINT MOTION by Gerald Abdul-Wasi, R.V. Turner, Anthony Lamarca to extend time within which to complete mediation of attorney fees (pa)
ORDER granting [488-1] joint motion to extend time within which to complete mediation of attorney fees (Signed by Magistrate Barry S. Seltzer on 8/4/99) CCAP [EOD Date: 8/9/99] (kz) [Entry date 08/09/99]
FINAL report of Mediator. Disposition: The parties did not reach an agreement. (kz) [Entry date 09/02/99]
AGREED MOTION by R.V. Turner to extend time in which to provide the court with a submission of fee calculations (pa) [Entry date 09/17/99]
NOTICE OF PARTIAL SETTLEMENT OF ATTORNEYS' FEES AND COSTS filed by Gerald Abdul-Wasi, R.V. Turner, Anthony Lamarca (kz) [Entry date 10/25/99]
STIPULATION FOR DISMISSAL OF PLAINTIFFS' CLAIM FOR ATTORNEYS' FEES AND COSTS by Anthony Lamarca, Gerald Abdul-Wasi, R.V. Turner (kz) [Entry date 11/08/99]
ORDER OF DISMISSAL: dismissing the claims of the Plaintiffs, LaMarca, Saunders and Johnson, the Plaintiff Class and their counsel for attorneys' fees and costs having been resolved between the parties (Signed by Judge James C. Paine on 11/12/99) CCAP [EOD Date: 11/16/99] (kz) [Entry date 11/16/99]
MOTION by Gerald Abdul-Wasi, R.V. Turner to Determine Amount of Costs (kz)
COPY OF MANUAL DOCKET SHEET (kw)
REPORT AND RECOMMENDATIONS of Magistrate Barry S. Seltzer

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recommending that [495-1] motion to Determine Amount of Costs be GRANTED. Modgned further recommends that the District Court tax costs in the amount of $5,757.16 against David Aldred, Steve Bronson, Eddiw Cobb, Ron Durrance, and Billy Joe Harper and in favor of defendant R.V. Turner. An itemization of the costs to be awarded as follow: (See order) Motion no longer referred. Signed on: 5/11/00 Objections to R and R due by 5/21/00 CCAP (pa) [Entry date 05/12/00]

6/6/00 --
6/7/00 498 7/20/00 499

CASE CLOSED. Case and Motions no longer referred to Magistrate. [495-1] motion to Determine Amount of Costs, [491-1] motion to extend time in which to provide the court with a submission of fee calculations, [488-1] joint motion to extend time within which to complete mediation of attorney fees, [468-1] motion for Evidentiary Hearing, [466-1] motion to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses, [466-2] motion for leave to file memorandum in excess of 5 pages, [463-1] motion to extend time for serving pleadings, [460-1] motion to extend time file pleadings, [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (pa) [Entry date 06/27/00]
ORDER APPROVING AND ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION: ORDER adopting [497-1] report and recommendations granting [495-1] motion to Determine Amount of Costs (Signed by Judge James C. Paine on 6/7/00) CCAP [EOD Date: 6/7/00] CCAP (pa)
ADMINISTRATIVE ORDER terminating [491-1] motion to extend time in which to provide the court with a submission of fee calculations ( Signed by Judge James C. Paine on 7/20/00) CCAP [EOD Date: 7/25/00] (wec) [Entry date 07/25/00]

6 of 6

Case Flags: BSS
CLOSED

END OF DOCKET: 9:82cv8196

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PLAINTIFFS
JTHONY L&MRCA C071588 , .UNDERS , MARTIN )HNSON , EDWIN
,DRED, DAVID (ONSON, STEVE H .
)BB, EDDIE
JRRANCE, RON PPRECHT, .WAYNE DRDON, MICHAEL ARPER, BILLY JOE

DEFENDANTS

I

I B-3 1-1I

CLASS A C T I O N . ~ / ~ I / ~ ~

LAMBDIN DIN, CHESTER

CIVIL RIGHTS 42 USC 1983

CAUSE
(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

Alleges he was threatened-wlphysical violence & a s s a u l t e d by inmates and t h e

arlminbtration was aware of t h e problems.

9? ._ ._

,-. x9-

/

I1 ,

ArroRNEys

rg
.. . PC b L .; tc . :-G . /j/.i , ,i.
WALTER M. Mcgi nnisi, Asst. Atty.Genera1

. PROPER PERSON "
500 Orang9 'C i r c l e Ave ).A88 de, F1. ,33430

. .

KELLY OVERSTREET JOHNSON, ASST ATTY GENI Dept of Legal A f f a i r s
The.Capito1, S u i t e 1501 Tallahassee, Florida 32301

- ..-- -.----.

.... . .. . -.-

i

(904) 488-1573

DAVID ,MICHAEL LIPMAN, ESQ.

S u i t e . 304 5901 S.W. 74th S t r e e t Miami, Florida 33143

-.&..-(..3.--0=5,-). ..:.-...--6-...6:-.2---2;-L6i 00.r :.: 7:..-,'.::3 ; - 7 - - . -

.---

..

MICHAEL B. WVIS

i

Davis, Critton, Hoy & Diamond

P.O. ax 3797

West Pdlm Beach, F1. 33402

Tel: 478-2400

W ~ ~ L . IRAOBMERT AMLONG, ESQ. 101. N.E. Third Avenue, 2nd F1.

Fort Lauderdale, F l o r i d a 33301

( 305) &62-1983

, ..

.._-

t

W/drw counsel a s t o Henry ~ b s e i b i i t n5/3b/85

c/o Attorney:

F~
-.

~
.

R..

.

D
.

E

F

E

(~a's~ o; fS

4/8/94)

-Paxton,, Crw, : ~ r a & ,SmiFh C Keyser, P-A,

Michael B. Davis, Esq.

The B a r r i s t e r s B u i l d i n g - S u i t e 5 0 0

161.5 Forum.Place

West Palm Beach, FL 33401

(407) 684-2121

Steven E. Hartz, Esq. 2600 S.W. 3rd Avenue Suite 700 .
Miami, Florida 33129
(858-571 1 )

(CONT'D)

I X c t i ~ c ~, HERE ASE WAS
ED IN
FMA IPERlS

DATE
---
----. -.----

FILING FEES PAID
RECEIPT NUMBER
. -
-------

C.D. NUMBER
---

STATISTICAL CARDS

, CARD

DATE MAILEC

- JS-5 May, 1982

: z? JS.~,-&Z~I

--

555(,&&UA27 3 x 9y

CA, ANTHONY
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. TURNER
PROCEEDINGS
ATTORNEY CONTINUATION

JAMES A. TUCKER
Florida Rural Legal SErvices, Inc.
2209 Euclid Ave Ft. Meyers, FL 33901 813/ 334-4554

1—7 H.|o-7OII<m
PAGE OF PACES

Scanned Image - 9:82CV8196 Document 496 page 3 Mon May 29 07:46:04 2000
Scannad Imaga - 9.82CVB196 Document 496 pag* 2 Thu Fob 19 15:07:18 2004

'.

•'

•

•

..DATE

.'-
NR.

'

.•...._. . . . • • - ' -•

82-8196-CIV-JCP /'

PROCEED.NGS

JS-5 x_Card

May 14 1 COMPLAINT. W/Forma Pauperis Affidavit att.

(Cy. mid. U.S.Atty., - Miami)

I

June 15 2 NOTICE of Transfer (PJK) Case transferred to Mag. Nimkoff for further

proceedings. (EOD-6/22/82-CCAP)

a

Aug. 6 3 ORDER (PLK) APPROVING forma pauperis & directing service of process.

(EOD-8/16/82-CCA>

I

17 4 SUMMONS issued as to R. V. Turner, Supt, Glades Correctional Facility.

Copy to file.

£

Sept . 27 5 RETD. Summons exec. 8/25/82 ast o R.V. Turner

c

Oct. 14 6 RETURN of Document to Joseph Belitzky, Esq., Motion to Dismiss

Cc

or in alternative for summary judgment

Cc

15 7 RETURN to Order to Show Cause by deft. R.V. Turner •>

25 8 MOTION to Dismiss or in the alternative for a summary judgment

ca

25 9 MEMO of law in support of defts motion to dismiss or for summary

judgment

ca

Nov. 15 10 MOTION for ext of time for pltf to file reply to Order to Show cause.

NR

i

17 11 REPLY on return to order to show cause, by pltf.

r

1983

Jan 13 12 MOTION for summary judgment, by pltf.

c

Feb 22 13 RESPONSE to motion for S/J, by deft.

r>

26 14 REPLY to resp to M/SJ, by pltf.

rd

Apr 07 15 LETTER to Judge Nincoff, from pltf dated ??

July 18 16 WRIT OF HABEAS CORPUS AD TESTIFICANDUM( PLN 7/18/83) as to ANTHONY

LA MARCA, to Dist Ct.(EOD 7/21/83 CCAP)

rt

22 17 STATUS ocnf set for 8/25/83, in Miami.

n

Aug 26 18 RETURN (PARTIAL) on writ/habeas ad/testificandum, exec 8/25/83, as to

ANTHONY LAMARCA transp to DADE CORRECTIONAL INST.

r<

Sept. 09 19 NOTICE of hearing on 9/19/83 @ 10:00 a.m. @ Courtroom V U.S. Dist.

Ct., @ Miami, Florida before Magistrate Peter Nimkoff

a

02 20 WRIT of Habeas Corpus Ad Testificandum, Anthony LaMarca, material

witness, to be brought before U.S. Dist. Court, Miami, on 9/19/83

@ 10:00 a.m. to give testimony at an evidentiary hearing.

(9/2/83-PLN)

a

14 21 NOTICE cancelling evid/hrg scheduled on 9/19/83.

r

19 22 NOTICE of appr & sub of counsel f«w? defts.

i

21 23 AMENDED COMPLT, by pltfs.

T

30 24

-JO 25

Oct

26

06 27

06 28

06 29

06 30

06 31

14 32

14 33 19 34

19 35

\ 19 36

21 37

MOTION for permission to communicate w/potiential classmembers, by pltfs.
PARTIAL RETURN o.f writ of habeas, by US Marah on 9/19/83. MOTION for enlgmt of time to resp to amend/complt, by defts .(GRANTED JCP 10/24/83"
NOTICE of tkg dep of ANTHONY LA MARCA, HOMESTEAD, FL FCI. NOTICE of tkg dep of MARTIN SAUNDERS, GLADES CI, BELLE GLADES, FL. NOTICE of tkg dep of EDWIN JOHNSON, GLADES CI, BELLE GLADES, FL. NOTICE of tkg dep of HENRY ROSENBAUM, AVON PARK CO. N0TIOB for leave to tke deps.
MOTION for class certification, by pltfs. MEMO in supp of above motion, by pltfs AMENDED notice of tkg dep of ANTHONY LA MARCA. AMENDED notice of tkg dep of EDWIN JOHHSON & MARTIN SANDERS. AMENDED notice of tkg dep of HENRY ROSENBAUM. ORDER(PLN 10/21/83) ordering that pltfs & counsel shall be permitted
to communicate w/potential & or actual clas members.(EOD 10/28/83 CCAP)

31 38 JOINT mdtion for leave to tke dep of inmates, w/memo, by all ptys.
12 39 MOTION for leave to tk-£ depos, by defts. 20 40 MOTION for enlgmt of time to file reply, by defts.

ScanrMd Imag. - 9:82CV8196 Docunwnt 496 p . g . 3 Thu F.b 19 15:07:18 2004

I IFF
NR.

1
CIVIL DOCKET CONTINUATION SHEET (DEFENDANT
PROCEEDINGS

m - » t » — 714

\

•B19b-CIV-Ji:P

DOCKET NO.

PAGEJ2 . O F

PAGES

02 41 ANSWER by defts(ALL)

03 42 ORDERTHH 11/2/83) permitting deps of persons confined In prison. (EOD

11/8/83 CCAP)

23 43 AMENDED notice of tkg dep of ANTHONY LA MARCIA.

IT

23 44 ANSWER to affirm defenses, by pltfs.

16 45 RESPONSE to notion for class cert, by TURNER, WAINWRIGHT.

r<

18 46

REPORT & Recommendation (l/16/84-PLN) Cause be certified as a class Action on behalf of all who are, have been or will be incarcerated in the Glades Correctional Institution in Belle Glade, Fla.

13

ORDER(JCP 4/13/84) declaring the folowing s declared to-be a oert/class

for the purposes of the injct relief sought in the instant ccnplt, former

itmates no longer so incarcerated should not be members of the class

seeking injc relief.(EOD 4/16/84 CCAP)

rd

3C 48 U 49

NOTICE(PLN 4/30/84) setting status conf G> 11:00 AM in MIAMI on 6/8/84
0RDIR°AT STATUS1" CONFERENCE (PLN 6/8/84)there appears to be no present pr/tr disputt the ptys to notify the ct before 8/8/84 what they jointly or severally believe to be the current pr/tr status of the case.(EOD 6/19/84 CCAP)

13 50 NOTICE setting cause for 2/status conf on 9/4/84 ? 10:00 AM, before Mag/Nimkoff.(EOD 8/15/84 CCAP)
04 51 NOTICE of status conf set for 9:30 AM in Miami, before Mag Nimkoff on 9/21/84.
25 52 OROER(PLN 9/25/84) directing both counsel advise ct re:recusal. (EOD 10/1/84 CCAP)
15 53 STATUS REPT, by pltfs. 15 54 NOTICE of appr of counsel bor pltfs.

18 55 985 y 30 56
30 57 JLY 1 58
11 59
15 60

STIPULATION & ORDER(JCP 12/18/84) approving stip & the terms of stip

are incorporated into a protective order, (EOD 12/21/84 CCAP)

rd

MOTION for lv to w/drw as counsel for Henry Rosenbaum.W/drw counsel

David M. Lipman & Karen Coolman Amlong.

bs

SECOND status rpt by pltfs1.

bs

ORDER( JCP-6-29-85) Granting mot. to w/draw of attys David Lipmand & Larent

amlong. (EOD-7-11-85) CCAP

jl

PRETRIAL 0RDER(JCP-7/8/85) Requiring meeting of couns & pre/trl/stip to

be filed 10/8/85. Cal call 10/11/85 at 9:00A.M. in W.P.B..F1. Trl to be

set before Odg. Paine on 10/21/85 at 9:30A.M. Place to be announced/

(EOO-7/15/85CCAP).

MOTION to proceed IFP, by petitioner.

Scanned Image • 9:82CVS196 Document 496 page 26 Mon May 29 07:46:00 2000

Scanmd Image - *82CVB196 Document 496 paga 4 Thu Fob 19 15:07:18 2004

DC 11JA (Rev. 1/75)
PLAINTIFF

DATE

NR.

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO. PAGE. -OF_

.PAG

July 15 61
Aug 26 62 26 63 26 64
Sept 4 65
06 66 18 67 23 68 *9/20/85 69
23 70 Oct 01 71

ORDER (PLM-7/15/85) Notice of trl to be set before Mag w/out jury on 11/04/85 at 9:30 A.M. in crtrm V, Miami, Fla. Granting Mr. Lipman's mot for lv to w/drw as couns to Henry Rosenbaum. Deferring Rosenbaum's mot for apptmt of subst couns. His elm is servered from pitf class & is ABATED. Pre/trl stip to be filed by 10/28/85. No sep pre/trl conf will be conducted unless couns not crt bef 10/28/85.(EOD-7/25/85 CCAP).
MOTION for leave to file sec amend cortplt, by ptlfs. MEMO in supp of above. NOTICE of appr of WILLIAM R AMLONC as co counsel for pltfs.
NOTICE Of app & subst of couns, Walter M. Meginniss apps as couns for defts in subst for Deborah J. Stephens & Kelly Overstreet JOhnson bt W.M.Meginniss.
MOTION for enlgmta o fimt to resp to mot to file sec amend complt, by defts.
MEMORANDUM of law in opp to pltfs1 mot for lv to file 2nd amend cmplt, by defts.
REPLY memo of law in suppt of pltfs1 mot for lv to file 2nd amend cmplt. ORDER (PLN-9/19/85) Granting pltfs1 mot for lv to file 2nd amend cmplt.
& 2nd amend cmplt be filed nunc pro tune 8/26/85. Defts shall ans forthwith. (BOD-9/26/85CCAP). NOTICE of app as add couns for defts. The law firm of Davis, Critton,
Hoy & Diamond enters its app. MOTION to shorten time for discr,e; •pltfs.,

04 72

** /03/85

73

08 74 08 75 10 76 .Oct 11 77

*19/l/8! 78

25 79 -•16 80
Nov 6 81 6 82 8 83 8 84 13 85
13 86 13 87 13 88 13 89 13 90

RESPONSE to mot for enlgmt of tira & continuance, by pltfs.
MOTION for enlgmt & eontuance :..» resp ttoo 2-rzm\nd_caqnlt.Jgi defts MEMORANDUM in suppt of defts1 mott ffor more def stnt T ? T P " » • MOTION of defts for more def stmt by defts MOTION to decertify class by Asst Atty Genrl.
NOTICE of w/drawal of mot to decertify class
ORDER (PLN-10/1/85) Directing that on 7/15/85 Mr. Rosenbaum's elm was severed & abated, no act will be tkn by crt until after trl of class-elm.(EOD-10/23/85CCAP).
RESPONSE to defts1 net for more definite statement, by Pltf.
ORDER(JAGPLNIO/15/85) Trial is cont to a special setting on 12/2/85 @9:30 before Judge Nimkoff (EOD10/28/85)
PETITION for Habeas Corpus Ad Testificandum, pltfs. CERTIFICATE of service. DEMAND for jury trial, by defts. NOTICE of taking depo of David Aldred on 11/13/85.
AMENDED notice of taking depo of: Eddie Cobb, Billy Joe Harper & James Kinner on 11/8/85. NOTICE of taking depo of Larry Pryor on 11/13/85. AMENDED notice of taking depo of David Alfred. NOTICE of taking depo of Wayne Epprecht. NOTICE of taking depo of Steve H. Bronson.
N O T I C E o f t a k i n a dp>nn o f R o n r» •n-r-a-nr-a.

Scaniwd I m a g . ' 9-.82CVS196 Docum*nt 496 p«g« S Thu F.b 19 15:07:18 2004

LAMARCA, e t a l
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. TURNER, e t c , e t a l
PROCEEDINGS

FPI—MAR 2H-7»-SOmi5S4

DOCKET NO. PAGE 4 O F .

.PAGES

82-8196-CIV-JCP

91 92 93 94 95 96
97
98 99 100
101 102
103 104 105
106 107 108

MOTION to cont, by defts R.V. Turner & Randall Music. (NR )

11

EXPERT witness reports, by Pltfs.

MOTION to amend complt in providing for a 3rd amended

complt, by Pltfs.w/3rd amended complt attached.

dnub

NOTICE of tkg dep of Michael Gordon on 11/15/85, by deft.

dm :

NOTICE of subpeona for documents w/o dep, by Pltfs.

dnt

AMENDED Notice of tkg dep of Michael Gordon on 11/15/85,

by defts.

dm:

MEMO of points & auth in supp of opp to demand for jury

trial, by Pltfs.

dmt

RESPONSE i n opp t o M/to c o n t i n u e , by P l t f s ,

dmt

NOTICE of pending motions on 11/21/85 a t 3:00 P.M.

11

ORDER(JCP-ll/21/85) granting p l t f s p e t i t i o n for Habeas Corpus Ad -

Testification. (EOD 11/27/85, CCAP)

11

NOTICE of subp for documents w/o depd issued to John B. Dunkle, by p l t f s

11

MOTION to strike allegations of p l t f s second amended aomplaint, by defts.

(NR )

11

AMENDMENT to mot of defts for cont, by defts.

11

APPEAL from Mag's order & petition for emergency hearing.

11

ORDER(PLN-ll/25/85) granting nunc pro tune 11/14/85, p l t f s mot to file

third amended conplaint; court makes no present ruling regarding

recoverability of attorney's fees or presence of State of Florida

as deft for that purpose; denying deft's jury demand; denying deft's

mot for further cont of trial; reserves ruling on deft's mot to strike.

(EOD 12/6/85. CCAP)

11

UNILATERAL Pre- Trial stipulation, by pltf.

11

ANSWER to pltf third amended complaint, by defts R.V. Turner & Randall Music. 11

MOTION for an order to direct the State Court to release sealed records

to this court for an in camera review, by pltf. (NR )

11

109 RESPONSE to deft's appeal from Mag's order & petition for emergency hearing,

by pltf.

11

110 SUPPLEMENTAL pretrial stip, by pltfs.

13

111 NOTICE of filing report of expert witness Alan M. Wagshul, M.D. by pltfs. 112 ORDER(JCP-12/2/85) denying defts Turner, Music & State of Florida's Appeal

11

from Mag's Order & Petition for Emergency Hearing. (EOD 12/12/85,CCAP) 11

113 ORDER(PLN-12/4/85) amending & modifying the Court's previous Order of

11/21/85 to the extent that the Court directs that inmate Larry Pryor be

transported to & held at the Dade Correctional Institution (D.C.I.) in

Dade County, FL; directing officials of D.C.I, to transport Larry Pryor &

supervise his custody; "permitting"pltf s'-couhael-to confer'with--fiasry

Pryor at D.C.I, during his incarceration. (EOD 12/13/85,CCAP)

11

114 CJA 21 Voucher No. 953055 (PLN-12/6/85) appointing Steven E.M. Hartz, Esq. as

counsel for Larry Pryor.

11

115 ORDER (PLN-12/2/85) directing deft through Dept of Correction to transport inmates who are either pltfs or witnesses by: 9:00 A.M.uon 11/28/85 to *

Dade County Jail in Miami, FL; Dade County Jail shall then transport these

inmates to U.S. District Court at Miami to be avalible for trial conmencing

12/2/85 at 12:30 P.M. in Courtroom 8 of the New Courthouse; transfer shall

be made by 12:30 P.M., 12/2/85. (EOD 12/20/85,CCAP)

11

Scanned Imag* • 9:82CV8196 DocunMnI 496 pag« 6 Thu Fab 19 15:07:18 2004

oc IHA
(Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

FPl-NAR 214 7J.50M-

DOCKET NO. PAGE 5 Qp

.PAG

DATE

NR.

PROCEEDINGS

1985 116
Dec 10 117 118
16

**Dec 12 119

** Dec. 23 120

** Dec. 20 121

Dec. 27 122

1986

Jan 8 123

8

124

8

125

**** 1985

Dec 20 126

20 127

1986 Jan 8 128

10 129
10 130
10 131
14 132 15 133 17 134 17 135 17 136 17 137 *** 12 138

TRANSCRIPT of Hearing dated 12/3/85 Pgs. 93-173.

TRANSCRIPT of Hearing dated 12/3/85, Pgs. 174-263.

NOTICE of Final Argument on 12/27/85 at 9:00 A.M. (40 minutes to a side) at

Miami, Courtroom V.

ORDER (PLN 12/12/85) granting M/ to Direct State Court to Release Records

to this Court in Camera (EOD 12/27/85 CCAP)

c

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by defts.

C

Proposed Findings of Fact and Conclusions of Law by plaintiffs

d

MOTION for Hearing on conpliance with injunctive Order by Larry Pryor

d

MOTION TO EXCLUDE DEPO EVID. OF DEFT AND MEMO by pltfs.

c

CERTI. OF SERV. of M/Exclude by pltfs

c

MOTION FOR SUBSTI. OF PARTY DEFT and MEMO by pltfs

c

NOTICE of filing supplemental material, by pltf. CJA 20 (PLN 12/19/85) Appointment and authority to pay crt appt'd csl in the
amount of 153.75, voucher no. 953055.

REPORT (PLN 1/8/86 ) and recommendation. Pltf shall be compensated for injui Pltfs are entitled tr oan award of fees and award of atty fees and litigation expenses reimbursement. Pltfs shall file w/in 20 days fee/expense submissions and accompanying memo as to this issue. Deft respond w/in 20 days fron pltfs filing. See orginal R & R for furthe information.
ORDER (PLN 1/10/86) Chester Lambdin is subst as a pty deft in the stead of Re Music. Deft Lambdin is solely in his official capacity for purposes of injunctive and orther equitalbe relief. (EOD 1/27/86-ccap).
ORDER (PLN 1/10/86) GRANTING pltfs m/ for exclude depo evidence of defts and being apprised of its permises. This crt reccmnends that the depo's c the seven deponents taken at the initiative of defts on 12/17/85 shoul be exculded from consideration in this lawsuit. (EOD 1/27/86-ccap).
ORDER (PLN 1/10/86) GRANTING p l t f s m/ to file a third amended complt, Keith previously indicated as a named ptys pltf in this action, is expressly
w/drawn as a ligitant to this action. (EOD 1/27/86-ccap). MOTION to cont hearing and to issue writ of habeas corpus and testificandum,
Larry Pryor. MOTION for enlargement of time, by defts. NR PETITION for hearing on appeal of Mag's order under ruel 4(a), by defts. RESPONSE to movant, Larry Pryor's m/ to cont hearing and to issure writ of
habeas corpus ad testificandum, by pltf.
RESPONSE to defts' m/ for enlargement of time, by pltf.
CERTIFICATE of service, by pltf.
NOTICE of hearing on compliance w/ injunctive order set for 1/16/86.

30 139 31 140 31 141 31 142 31 143

B»JiTTCEV6x:cftl^ngsi^fxiarTiffttyor:-inl-Sup-b£jnwt Qf©K>:h£3£3S>gu

R / j j order

MOTION by pltf for award of attny fees & lit expenses (NR

)

REQUEST by pltfs attny for oral arg on pltfs1 mot ffoorraw

attny fees &

MEMOin support of pltfs1 mot for award of fees' & lit exp.

EXHIBITS filed for pltf in support of mot for award of attny fees & lit ex;

SeaniMd Image - 9:82CVS196 Document 496 page 7 Thu Fab 1915:07:19 2004

IFF
ONY LaMARCA
NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT R. V. TURNER
PROCEEDINGS

fPl-MAH 2-14-7 ••(OU-IS94
DOCKET NC82=8196=CIV PAGE * ! O F

144
145
146
147 148 149
150
151 152
153 154 155
156
157 158 159 160 161 162 163 164 165 166 167
168 169
170
171
172
173

RESPONSE to d e f t ' s petition for hrg on appeal of Mag. Order under

Rule 4(a). by p l t f .

'

pb

RESPONSE to d e f t ' s M/for a d d t ' l enlargement of time to resp to

rept & reccmn of Mag., by p l t f .

pb

RESfiQNSE to deft's M/for enlargement of time to resp t o p l t f s M/for

fees & litigation expenses., by p l t f .

pb

NOMINATION of committee member required by rept & recomm, by p l f t .

~pb

REPLY to p l t f s response to pet for.HeardLng^ohoftppeal.oByjteftl^O- 2-/.Z--Y.) cf;r

MOTION for Enlargement of time to respond t o p l t f s mot for fees & Lit

expences. NR

.

cf

MOTION for addl enlargement of time to respond to report & reccmnendation

of U.S. mag. NR^JJje

.

cf

ORDER(JCP 2-17-86) granting mot for enlargement of tixnsto defts(EOD 2-25-86)cf

MOTION f o r a d d ' 1 e n l a r g e n e n t of time t o r e s p o n d t o Report &

recommendation of U.S.Mag.NR

cf

RESPONSE t o Mag's r e p o r t & recommendation by d e f t s e t a l .

cf

NOTICE of filing add'l portions of transcripts, by defts .

ci

AMENDED RESPONSE of defts, including objections to Mag's

Report & Recommendation, by defts.

ORDER(JCP3-18-86)GRANTING mot for add'l enlargement of time til 3-17-86, to resp to rep9ort & recommendation of Mag. (EOD3-24-86-CCAP)

TRANSCRIPT of hrg before Mag. Nimkoff, 11-25-85 in Miami.

c

TRANSCRIPT of hrg before Judge Nimkoff, 12-2-85, Miami.

c

TRANSCRIPT of trial proceedings, 12-11-85, Miami.

c

TRANSCRIPT of afternoon session of tr proceedings, 12-11-85.

c

TRANSCRIPT of tr proceedings, 12-12-85, Miami.

c

TRANSCRIPT of proceedings, 12-12-85, Miami.

c

TRANSCRIPT of proceddings, 12-13-85, Miami.

c

TRANSCRIPT of afternoon proceedings, 12-13-85, Miami.

c:

NOTICE of filing of transc of hrg on 11-25-85, by defts.

ci

MOTION for enlargement of time & supporting Memo, by pltfs.

ORDER(JCP4-15-68)GRANTING pltfs mot for enlargement of time thru 4-29-86.

(EOD4-22-86)

c

MOTION for enlargement of time & sup Memo, by pltfs.

cf

ORDER(JCP4-28-86) GRANTING mot forenlgmnt of time, by pltfs, pltfs have til

5-29-86 to file response to defts exception to recommendations of Mag..

(EOD5-8-86-CCAP)

cf

MOTION for leave to file 2 days late their, reply Memo to defts response &

Objection to Mags report, by pltfs. NR 172

cf

ORDER S. WRIT OF HABEAS CORPUS AD TERSTIFX^NDUM( JCP5- 30-86) GRANTING mot to

cont hrg, Hrg on Compliance set for 6-24-86 @ 1 PM, Louie Wainwright to

del Larry Pryor to Marshal 6-24-86.(EOD6-3-86-CCAP)

cf

ORDER(JCP6-6-86)GRANTING pltfs mot for leave to file 2 days late, their

reply memo to defts response & obj to Mag's report.(EOD6-10-86-CCAP)

cf

MEMO RE: The Binding of non-parties by Court In]. orderfcsras to

Larry Pryor.

Scwvwd I m a g . - 9:«2CV8196 Document 496 pag* 8 Thu F«b 19 15:07:18 2004

DC niA (Rev. 1/75)
PLAINTIFF

DATE

NR.

1986
JUNE 26 174 27 175

•12-6-85 Oct 14
14 14 14 14 14 14 14
14 14
14 14 14 14 14 14
Nov 18

176 177 178 179 180 181 182 183 184
185 186
187 188 189 190 191 192
193

20 194 28 195
1987
Feb 2 196 May 11 197
11 198 June 4 199

200 15 201 16 202 16 203 18 204
18 205 18 206

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

'PI-MA* Ml.)|.|(|.|

DOCKET NO. PAGE_Z_ OF

.PAG

RETURN of svc on order S> writ of H/C ad testificandum exec, on 6/24/86 ORDER (JCP 6/25/86) denying relief requested by witness Larry Pryor
(EOD 7/9/86 OCAP)
TRANSCRIPT of hrg before Judge Nimkoff on 12-4-85, pgs 338-433 TRANSCRIPT of proceedings before Judge Nimkoff on 12-4-85, pgs 435-606. TRANSCRIPT of proceedings before Judge Nimkoff on 12-5-85,pgs 608-705A. TRANSCRIPT of proceedings before Judge Nimkoff on 12-5-85, pgs 706-878. TRANSCRIPT of hrg before Judge Niirikoff on 12-6-85, pgs 879-1000. TRANSCRIPT of hrg before Judge Nimkoff on 12-9-85, pgs 1001-1109. TRANSCRIPT of hrg before Judge Nimkoff on 12-10-85, pgs 1234-1324. TRANSCRIPT of hrg beofre Judge Nimkoff on 12-10-85, pgs 1110-1233. TRANSCRIPT of testimony of David Brierton before Judge Nirtkoff on
12-12-85, pgs 1-68. TRANSCRIPT of proceedings before Judge Nimkoff on 12-12-85, pgs 71-121. TRANSCRIPT of depo of Angelo Palmer before R. Wolinsky on 12-17-85,
pgs 1-8. TRANSCRIPT of depo of Alvin Strachan on 12-17-85, pgs 1-17. TRANSCRIPT of depo of William Deese on 12-17-85, pgs 1-12. TRANSCRIPT of depo of David Wing on 12-17-85, pgs 1-13. TRANSCRIPT of depo of Alvin Greenwood on 12-17-85, pgs 1-17. TRANSCRIPT of depo of Thomas Vaughn on 12-17-85, pgs 1-23. TRANSCRIPT of depo of Emilio Martinez on 12-17-85, pgs 1-24.
SUPPLEMENTL a u t h i n s u p p t of our r e p l y memo t o d e f t s '
resp & obj t o Mag's r p t by p l t f s ' .
NOTICE of s u p p l A u t h o r by d e f t s .
RESPONSE t o p l t f s analysis of supplemental authority, by Asst. Attny Gen.

AFFIDAVIT of indigency from DAVid AJdred. TRANSCRIPT of hrg before Judge Niirikoff on 12-2-85, pgs 1-92. TRANSCRIPT of hrg before Judge Nimkoff on 12-3-85, pgs 264-337.
PARTIAL F/J(CLK 6-4-87)ENTERED for PLTF (See f i l e for details)Case remains open as t o further injunctive r e l i e f , a t t y fees & expenses. (EOD6-8-87CCAP)

ORDER(JCP6-4-87)AFFIRMING R&R of Mag PLN (DE #128)See file for details.

(E0D6-10-87-CCAP)

MOTION for new trl & to amend findings, by defts Turner & Larrbdin.

MOTION for enlargement of time to file add'l grounds for post judgment

relief, by defts.

NR203

ORDER(JCP 6-18-87)GRANTING defts mot for enlargement of time.(EOD6-23-87-

CCAP)

NOMINATIONS to ccnmittees & request for enlargement of time for completion

of nominations, by defts.

NR_

SUPPLEMENTAL MOTION in suppt of mot for award of atty fees & expenses &

Memo in suppt, by pltfs.

NR

EXHIBITS in suppt of suppl mot & Memo in suppt of mot for atty fees &

expenses, by ptlfs.

ScanrMd Itnag* - 9:»2CV8196 Document 496 p a g . 9 Thu F«b 19 15:Q7:1B 2004

TIFF C A , ANTHONY
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
TURNER, R.V.
PROCEEDINGS

82-8196-CV-JCP
DOCKET NO.

PAGE 8_.._OF

PAGES

207 MOTION & Memo for enlargement of time for response to mot & suppl mot for atty fees, by defts Turner & Lambdin.
208 SUPPLEMENTAL MOTION for new trl & re-hrg w/Memo, by defts.

209 NOTICE of subp for documts w/out dep by David M. Lipman, Esq. ' bs

210 SUPPLEMENT to nomination to committee by Walter M. Meginniss,

Asst Atty Genrl.

bs

211
212
213 214 215 216 217 218 219 220
221
222 223 224
225
226
227 228
229 230
231

ORDER ( J C P - 6 / 2 5 / 8 7 ) G r a n t i n g d e f t s ' mot f o r an e l g m t of t i m e i n

which t o f i l e c u r r i c u l u m v i t a e of D r . Edward A. H e r r e r a .

(EOD-6/30/87CCAP).

bs

ORDER ( J C P - 6 / 2 9 / 8 7 ) G r a n t i n g R.V. T u r n e r & C h e s t e r L a m b d i n ' s

mot f o r enlgmt of t i m e f o r r e s p t o mot & s u p p l e m t l mot f o r

a t t y ' s f e e s . (EOD-6/30/87CCAP).

bs

NOMINATIONS to Conmittees, by p l t f .

cf

RENEWED MOTION for appt of c s l & Notice of chg of add, by co-pltf Rosenbalm.

RESPONSE to defts mot for new t r l , by p l t f .

NRJ?>1 cf

RESPONSE to p l t f s mot for a t t y fees, by d e f t s .

cf

MOTION & Memo for ext to f i l e suppt'g a f f i d a v i t s , by d e f t s .

NR 221 c f

MOTION for evidentiary hrg & Memo of Law, by p t l f .

NR 228cf

SECOND SUPPLEMENTAL MOTION for a t t y & Litigation fees & Memo of Law in

suppt, by p t l f .

NR^g/cf

MOTION for leaVe to f i l e reply Memo upon receipt of suppl submissions of

defts, by p t l f s .

NR222_cf

ORDER(JCP 7-17-87)DENYIN, as moot, defts mot for ext to f i l e suppt'g a f f i d a v i t s .

(EOD7-17-87-CCAP)

cf

ORDER(JCP7-17-87)DENYING, as Moot, p l t f s mot to f i l e Reply Memo. (EOD7-17-87-

CCAP)

cf

RESPONSE to pltfs 2nd amended mot for fees, by defts.

cf

MOTION for ext of time to r e p l y to d e f t s response t o p l t f s 2nd

amended mot for f e e s , by p t l f s .

NR225 cf

ORDER(JCP 8-6-87)GRANTING p l t f s mot for ext of time: P l t f s have

20 days, t i l 8-20-87, to f i l e reply.(EOD8-10-87-CCAP)

cf

REPLY to defts response to p l t f s second amended mot for f e e s ,

by p t l f s .

cf

CERTIFICATE of s e r v i c e , by p l t f s .

cf

ORDER(JCP 9-11-87)GRANTING p t l f s mot for E v i d e n t i a r y hrg, now s e t

for 10-9-87 @ 1 PM.(EOD9-14-87-CCAP)

cf

AFFIDAVIT of Indigency, by David Aldred.

cf

ORDER(JCP 9-17-87)DENYING p t l f s r e q u e s t for c o p i e s , p l t f to c o n t a c t

c s l for information he deisres.(EOD9-18-87-CCAP)

cf

ORDER(JCP 9-19-87)DENYING p t l f s mot for appt of csl.(EOD9-22-87-

CCAP)

cf

Cont'd

Scanned Imafp - 9:82CVS196 Document 49* pad* "> Thu F«b 19 15:07:18 2004

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO. PAGE.9 OF

PAGES

ORDER(JCP 9-19-87JDENYING defts mot for New trl/Amend Findings:

VACATING portion of ord entered 6-4-87 which directs St. of FL

to bear cost of committees: ORDERING costs of committee to be

born by Supt Chester Lambdin.(EOD9-22-87-CCAP)

cf

NOTICE OF APPEAL filed by defts Turner & Lambdin from Partial

F/Jdgmt & Ord on R&R entered 6-4-87 & Ord entered 9-19-87.

(Fee Pd)

cf

NOA transmitted to USCA, copies to all interested parties.

cf

THIRD SUPPLEMENTAL MOTION for award ot atty fees & expenses, by

ptlfs.

NR33££f

MEMORANDUM of Law in suppt of 3rd suppl mot for atty fees, by

pltfs.

cf

ORDER(JCP 10-8-87)On p t l f s various mots for a t t y & l i t i g a t i o n

fees. (See f i l e for d e t a i l s ) (EOD10-13-87-CCAP)

cf

MOTION & Memo for leave to f i l e t r a n s c r i p t s , by deft.

N

LETTER from USCA dtd 10-7-87 acknowledging r e c e i p t of NOA, CA #

87-5878.

ci

ORDER (JCP-10/14/87) Granting d e f t s mot for l v t o f i l e t r a n s c s .

(EOD-10/19/87CCAP).

b

NOTICE of f i l i n g t r a n s c r i p t s of: Record of Proceedings of 10-8-85,

Depo of Glenn Caddy on 1 2 - 4 - 8 5 , & depo of Richard Swanson on

11-29-85, by d e f t s .

ci

MEMORANDUM of Law on Litigation Expense by defts

sr

MEMORANDUM of Law on Disputed Litigated Expenses by pltfs

sr

LETTER from USCA dtd 11/10/87 r e q u e s t i n g ROA.

cf

TRANSCRIPT of proceedings before Mag Nimkoff on 10-8-85, Mia,

pgs 1-46.

cf

ROA sent to USCA c o n s i s t i n g of 5 v o l s pldgs & 23 vols t r a n s c r i p t s . c f

RESPONSE t o d e f t ' s . mot. for enlgmnt. of time & c o n t . , by p l t f .

kw

LETTER from USCA r e t ' g Vols 24 & 25 of ROA as they a r e d u p l i c a t e s

which are i n c o r p o r a t e d i n t o main v o l s of t r a n s c r i p t s .

cf

NOTICE of Vol d i s m ' l , by Henry Rosenbaum.
MANDATE(USCAll-15-88)DISMISSING a p p e a l . RETURNING case to Dist to complete d i s p o s i t i o n of case.(EOD11-23-88)(Returned ROA c o n s i s t i n g of 26 v o l s . )

cf Crt
c£

MOTION for STatus Conf, by p t l f . NOTICE of svc of pltf injunctive relief, interrog to defts, by p l t f s . Continued

NR^5/cf sbg

Scanned Image • 9:S2CV8196 Documont 496 p«g« 11 Thu Fab 19 15:07:18 2004

-ITIFF
i\RCA, ANTHONY

IE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
TRUNER, R.V.
PROCEEDINGS

82-8196-CIV-PAINE

DOCKET NO.

PAGE 1 0 o F

PAGES

1£ 248

MOTION f o r e x t of time t o complete d i s c o v , by Lambdin. N R ^ ^ c

i)

21 249 18 250 02 251
12 252 13 253 23 254
3 255 16 256
17 257 11 258
15 259

NOTICE of pendency of m o t , by p t l f .

c:

SECOND NOTICE of pendency of mot, by p t l f s .

cf

ORDER(JCPlO/2/89)GRANTING p t l f s mot f o r s t a t u s conf. SCHEDULING

conf f o r 10/13/89 @ 11 AM.(EOD10/3/89)

cf

NOTICE of s t a t u s conf s e t f o r 1 0 / 1 8 / 8 9 @1 PM.

cf

MOTION f o r r e - h r g , by p t l f .

NR^y£cf

ORDER(JCPlO/23/89)SETTING d i s c o v to be concluded by 12/11/89,

SCHEDULING e v i d e n t i a r y h r g f o r 1/8/90 @9:30. C r t w/not

e n t e r t a i n any mots for cont.(EOD10/31/89)

cf

NOTICE of appr of James Tucker f o r p t l f s .

cf

MOTION f o r l v t o t a k e d e p o ' s & f o r emergency c o n s i d e r a t i o n &

Memo, by Lambdin.

NR258cf

SUPPLEMENT t o mot f o r l v t o t a k e d e p o ' 6 , by Lambdin.

cf

ORDER(JCPl2/5/89)GRANTING d e f t s mot t o t a k e c e r t a i n d e p o ' s .

EXTENDING d i s c o v d a t e t o 12/15/89.(EOD12/11/89)

cf

NOTICE of tkg depo of Lambdin, Col P i p t a , Capt H i c k s , Henry

Heatherly, Gary Lane & Medina on 12/15/89.

cf

22 260

PETITION for Writ of H/C Ad Testificandum, by p t l f s (see f i l e for

details).

NR 261 vpc

26 261

ORDER (JCP 12/16/89) for issuance of Writ of H/C Ad Testificandum,

GRANTED (see f i l e for details).(EOD 12/28/89)

vpc

26 262

MOTION for appt of Special Process Server, by p t l f s .

NR 263vpd

26 263

ORDER (JCP 12/26/89) GRANTING appt of Special Process Server (Albert

Lee) to serve Writs of H/C.(EOD 12/28/89)

vpd

26 264

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of

Corrections to deliver Eduardo Acosta to U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine in WPB, and to return him to his

place of custody.

vpd

26 265

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of

Corrections to deliver Joseph Haveard to U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine in WPB, and to return him to his

place of custody.

vpd

26 266

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver George Jonas to U.S.D.C. on 1/8/90 @

9:30 a.m. before Judge Paine in WPB, and to return him to his

place of custody.

vpd

Scanned Imag* • 9:820/8196 Document 496 pjtga 12 Thu F»b 19 15:07:1» 2004

DC 111A (Rev. 1/75)
PLAINTIFF
LAMARCA, ANTHONY
. DATE Nfi.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT TURNER, R. V-
PROCEEDINGS

82-8196-CV-JCP DOCKET NO. PAGE 11 OF PAGES

267 WRIT of H/C Ad Testificandum (Clk 12/26/89) 0CM1ANDING Fl Dept. of Corrections to deliver David Marsh to U.S.D.C. on 1/8/90 @ 9:30 a.m.
before Judge Paine in WPB, and to return him to his place of custody. vpc

26 268

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Shelby Robertson to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.

26 269 26 270

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Martin Saunders to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.
WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Mark C. White to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to his place of custody.

26 271

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Antonio Yepes to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to his place of custody.

26 272 1990

WRIT of H/C Ad Testificandum (Clk 12/26/89) COMMANDING FL Dept. of Corrections to deliver Arnold Dennis to U.S.D.C. on 1/8/90 @ 9:30 a.m. before Judge Paine in WPB, and to return him to h i s place of custody.

J a n 8 273 NOTICE of f i l i n g w i t & exh l i s t s , by d e f t Lambdin.

c5

8 274 EXHIBIT LIST, by p l t f s .

cfl

8 275 MOTION t o c o n s i d e r a d d ' l e v i d e n c e , by d e f t s .

8 276 WITNESS LIST, by p l t f .

c?

8 277 MOTION t o compel prod of d o c ' s , by d e f t s .

clt

8 278 MEMO i n suppt of mot f o r prod of d o c ' s , by d e f t s .

ci

8 279 9 280 9 281

MINUTES of E v i d e n t i a r y h r g commenced, c o n t ' d t o 1 / 9 / 9 0 .

cij

MINUTES of E v i d e n t i a r y resumed, cont t i l 1 / 1 0 / 9 0 .

cfl

ORDER(JCPl/9/90)GRANTING d e f t s mot t o s u b s t Lambdin f o r T u r n e r

as Supt of G C I , p r e s e n t l y serving.(EODl/11/90)

cfl

8 282 8 283 8 284 8 285 10 286
11 287

MOTION t o c o n s i d e r a d d ' l e v i d e n c e , by d e f t s .

NR cU

LIST of propective w i t n ' s , by p t l f s .

ci

LIST of Exh's, by p t l f .

ci

NOTICE of f i l i n g wit & exh l i s t s , by deft Lambdin.

MINUTES of e v i d e n t i a r y hrg on 1/10/90 commenced, cont'd to

1/11/90.

ci

MINTUES of evidentiary hrg on 1/11/90 resumed, cont til 1/12/90.ci

Scannad Image - 9:B2CVS196 Document 496 pwgi 13 Thu Fob 19 15:07:18 2004

;Rev. 1/75) PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DTFENDANT

DATE

LAMARCA, ANTHONY etal
NR.

TURNER, R.V. etal
PROCEEDINGS

82-8196-CV-PAINE

DOCKET NO

PAGE lJL

PAGES

1990

Jan 12 288 10 289
Feb 26 290 26 291 26 292 26 293 26 294
Mar 09 295 16 296
Apr 09 297 10 298 29 299
30 300
May 10 301 22 302 22 303 25 304 29 305
June 05 306 25 307
July 09 308 19 309

MINUTES of evidentiary hrg on 1/12/90 resumed & concluded.

cf

MINUTES of evidentiary hrg on 1/10/90 resumed & cont'd to

1/11/90.

cf

TRANSCRIPT of trl before Jdg Paine on 1/8/90, pgs 1-163.

cf

TRANSCRIPT of trl before Jdg Paine on 1/9/90, pgs 164-359.

cf

TRANSCRIPT of trl before Jdg Paine on 1/10/90, pgs 360-467

cf

TRANSCRIPT of trl before Jdg Paine on 1/11/90, pgs 468-654

cf

TRANSCRIPT of trl before Jdg Paine on 1/12/90, pgs 655-779. cf

MOTION for Clarification S. enlgmt of time to file submission

w/memo, by Lambdin.

NR_ cf

ORDER(JCP3/13/90)GRANTING defts mot for enlgmt of time til

4/9/90 to submit proposed Findings of Fact & Conclusions

of Law & there w/be no add'l ext•s.(EOD3/20/90)

cf

NOTICE of filing proposed ord on pltfs prayer for Class Action

Injunctive relief, by Lambdin.

cf

CERTIFICATE of svc, by Lipman.

cf

ORDER(JCP4/28/90)GRANTING pltfs request for Injunctive relief,

elk to enter F/J in favor of ptlfs in accordance w/ord entered 6/4/87 & this ord, elk to close caseVACATING portions of 6/4/87

ord which contemplates use of committes, all other aspects remain in full force & incorporated herein, RESERVING ruling /

on mot for atty fees & costs til fully briefed, pltfs to file/V affidavits in suppt of atty fees & costs w/in 20 days.(EOD '|ii'

4/30/90-CCAP-M-5/9/90)

cf

FINAL JUDGMENT(CLK4/30/90)READOPTING & CONTINUING ord entered

6/4/87 except as modified by ord of 4/29/90, ENTERTING jdgmt

effective 6/4/87 for pltfs agnst Turner, Total compensatory

damages in amt of $178,500-00, int of 7.02% to run from 6/4/87,

Jdgmt entered agnst deft for pltfs epprecht & Gordon, pltfs to

have nothing, pltfs to submit affidavits in suppt of award of

fees & costs w/in 20 days.{See file for further details.

(EOD5/l/90-CCAp-M-5/9/90)

cf

MOTION for new trl or to alter jdgmnt, by Lambdin.

NRJy^. cf

MOTION for ext of time to file mot for atty fees, by pltf.NR ct MOTION for lv to file memo in excess of 20 pgs, by pltfs. NR cf

MOTION for atty fees & litigation expenses w/exh's attached,

by pltfs.

NRj/£ cH

RESPONSE to defts mot for new trl or to alter jdgmt, by pltf. cl]

MOTION for ext of time to resp to request for atty fees, w/memo,

by Lambdin.

NR c

MOTION for add'l ext of time to resp to request for atty fees

& take discov, by Lambdin.

NR c

RESPONSE to ptlfs mot for atty fees & expenses, by Lambdin.

c

MOTION for enlgmnt of time to resp to defts resp to mot for atty

fees & costs, by pltfs.

NR c

(OVER)

Scanned Imaga - 9:82CVB196 Document 496 pag* 14 Thu F«b 19 15:07:18 2004

DC 111A (Rev. 1/75)
PLAINTIFF
LAMARCA, ANTHONY e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
TURNER/LAMBDIN

FPI- M A R — M l 1 0 7 0 H -
82-8196-CV-PA DOCKET NO. PAGE 13 OF_ .PAG

DATE NR. 1990

PROCEEDINGS

J u l y 30 310
31 311 Aug 08 312
13 313

ORDER(JCP7/23/90)GRANTING p l t f s mot for ext of time t i l 7/30/90 t o resp to mot for a t t y fees & l i t expenses. (EOD7/31/90-CCAP)

REPLY MEMO t i resp to mot for a t t y fees & l i t expenses, by pltfs.

REQUEST for evidentiary hrg, by p l t f s .

NR

NOTICE of mot pend'g more than 60 days, by p l t f .

Sept 04 314 11 315

SUPPLEMENTAL NOTICE of Pendency, by p l t f s .
NOTICE OF SUPPLEMENTAL AUTHORITY in resp to p l t f s mot f o r attys fees, by deft.

Jctober 8 316

ORDER (JCP 10/6/90) DENYING deft mot f o r new t r l or to alter jdmt & GRANTING p l t f s 1 mot f o r award of atty 's fees (DE 304) AWARDING fees & costs f o r Stage I of $143,239.86 @ 7% interest per year from 10/8/87 through payment & f o r Stage I I of $164,222.95 @ 12% interest per year from date of this order through payment. THIS ORDER IS FINAL in nature as required by 11th Circuit dism of original appeal & accordingly defts have 30 days in which to f i l e an appeal. (EOD 10/15/90-CCAP, M: 10/23/90)

26 317

NOTICE OF APPEAL from F/J dated April 30, 1990 & the Order denying new t r l & granting attys' fees dated October 6,1990, by defts. (Fee pd, copies to USCA, Judge, C r t . Rptr., Crt. Rptr. Coord., csl)

29

LETTER OF TRANSMITTAL TO USCA w/cert copy of NOA, docket sheet, F/J &

Order appealed from w/ statement re ROA transmittal.

02 318

AMENDED NOTICE OF APPEAL f i l e d from F/J entered 4/30/90, the Order denying new t r l & granting attys' fees entered 10/6/90, the p a r t i a l F/J & Order on R&R entered 6/4/87 and the Order denying defts1 mot f o r new t r l & to amend findings entered 9/19/87. (No fee pd, copies to USCA, Judge, Crt. Rptr., C r t . Rptr. Coord., csl)

05

LETTER OF TRANSMITTAL TO USCA w/cert copy of amended NOA, docket

sheet, and F/J's and Orders appealed from.

16
Dec 07
1991 Mar 25

ACKNOWLEDGEMENT by USCA of NOA and Amended NOA, assigning Case No. USCA 90-5909.
SUPPLEMENTAL CERTIFICATE OF READINESS of ROA sent to USCA advising f i l e consists of 7 volumes of pleadings, 28 volumes of exhibits and 7 expandables of exhibits. (12/18/90 USCA ack rec'd)
TRANSMITTAL of FDA in resp t o USGA request rec'd 3/22/91, consisting of 35 volumes (7 vols of pldgs, 21 vols of trans) plus 7 expandable

Scannad Imaga - 9:82CV8196 Docunwnt 496 page 15 Thu Fab 19 15:07:18 2004

>C U1A Rev. 1/75).
PLAINTIFF
LaMarca, Anthony, et a l .

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R. V. Turner, e t a l .
PROCEEDINGS

DOCKET NO _S2-ai9fL

14

PAGE __ OF_

PAGES

TRANSMITTAL LETTER to USCA with attch'd Exhibits consisting of

expandable # 1 - 3 . These were not sent at time of ROA

being transmitted.

tcp

13
1993 ov 15 319

ACKNOWLEDGMENT RECEIPT from U.S.C.A. of exhibits consisting of

expandable # 1 - 3 on 10/6/92.

tcp

MANDATE (USCA 11/10/93) Money judgments of said D i s t r i c t Court in t h i s

case are VACATED and REMANDED TO D i s t r i c t Court for a new t r i a l as to

P l a i n t i f f s Durrance, Cobb, Bronson, Aldred and Harper: Judgments favoring

P l a i n t i f f s , LaMarca, Johnson, and Saunders are REMANDED for reconsideratioi

in accordance with part I I and V of USCA's opinion. D i s t r i c t Court's grant

of injunctive relief as to Deft. Lambdin i s REMANDED for further pro-

ceedings consistent with Part I I I of t h i s Court's opinion, award of a t t y s '

fees i s VACATED in accordance with the opinion of USCA. Copies to Judge.

USCA #90-5909 Record on Appeal will be returned at a l a t e r date!

mi

Dec. 10 1994
Mar 08 320
March 11

RECORD OH APPEAL r e t u r n e d from USCA on 1 2 / 9 / 9 3 c o n s i s t i n g o f ( 3 5 ) v o l u m e s a n d

One ( 1 ) BOX o f E x h i b i t s . USCA # 9 0 - 5 9 0 9

mi

ORDER (JCP 3 / 2 / 9 4 ) REOPENING CASE & REQUIRING STAT RPTS, DIRECTING C l k to reopen cas & ORDERING ea pty w/in 20 days to f i l e s t a t rpt indieating whether a l l inmate Pltfs s t i l l wisht to pursue this matter, et a l . (EOD 3/10/94-CCAP)

r.,cf.y 3/3-V
vpd

LETTER from USCA re: that Supreme Court has denied c e r t i o r a r i . Court's

mandate having previously issued, no further action will be taken by this

court. USCA #90-5909

mrr

March 1 7 321 STIPULATION AND MOTION f o r s u b s t i t u t i o n of c o u n s e l by

Defendants.

NR 327 p a

March 2 322 MOTION f o r enlargement of time f o r p r e p a r a t i o n and f i l i n g

of s t a t u s r e p o r t by d e f e n d a n t s .

NR326

pa

March 3 323 UNOPPOSED MOTION f o r e n l a r g e m e n t of t i m e f o r preparation

APR 12 324

and filing of status report by plaintiffs. STATUS REPORT, by Defts.

NR 325

pa

ddg

*4/8/94 325

ORDER (JCP 4/8/94) GRANTING pltfs unopposed mot for enlrg of time for filing stat rpt w/stat rpt due 4/20/94. (EOD 5/2/94-CCAP)

vpd

*4/8/94 326

ORDER (JCP 4/8/94) GRANTING deft's mot for elrg of time to file stat rpt. (EOD 5/2/94-CCAP)

. vpd

*4/8/94 327

ORDER (JCP 4/8/94) APPROVING stip for subst of csl & ORDERING that case be transferred from Isaacs & Yeargin, P.A. to Paxton, Crow, Bragg, Smith & Keyser, P.A., thereby granting mot @ DE 321, w/firm of Isaacs & Yeargin to have no further responsibility for file. (EOD 5/2/94-CCAP)

vpdj

Scanned Imag* - 9:S2CV81% Document 496 pag* 16 Thu Fob 19 15:07:18 2004

DC 111A . (Rev. 1/75)
PLAINTIFF LAMARCA, ANTHONY e t a l

DATE

NR.

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT
TURNER/LAMBDIN
PROCEEDINGS

82-8196-CIV-PAINE

DOCKET NO.

PAGE 15 OF

.PAGES

April 20 328 lay 27 329
June 13 330 July 5 331
11 332
12 333 14 334 Oct 27 335

STATUS REPORT, purs to Crt's 3/3/9A ord, by pltfs.

vpc

SCHEDULING ORDER upon mandate and remand: Jury Trl specially set for 3-wk

calendar commencing Monday, Dec. 5, 1994 at 9:30 am.; Calendar Call 11/23/

at 9:00 AM, Pretrial Stip due 11/14/94

f

NOTICE of service of pltfs' production and inspection of documents

f

ORDER (JCP 7/2/94) instruction clerk to reopen case. (EOD 7/25/94)

f

MOTION of pltfs for ext of time to 10/15/94 to file stat rpt re claim for

injunctive relief.

fl

ORDER (JCP 7/12/94) granting motion DE #332. EOD 7/25/94

£1

MEDIATOR'S REPORT: No Agreement was reached; impasse.

fl

ORDER (JCP 10/27/94) Granting Motion for Substitution of Counsel and Entry

of Appearance of Douglas L. Wilson. (EOD 11/8/94) CCAP

mr:

Oct 27 336 *Oct 13 337

ORDER (JCP 10/27/94) GRANTING P l a i n t i f f s ' Motion fro Extension of Scheduling

Order Deadline. Deadline for p l a i n t i f f s to submit Status Report Regarding Cla:

for Injunctive Relief shall be 11/12/94. (EOD 10/27/94) CCAP

m

MOTION for Substitution of Counsel and Entry of Appearance

n

*Oct 13 338 MOTION for Extension of Scheduling Order Deadline by Plaintiff

mn

Nov. 7

339

MOTION of defendants R.V. Turner and Chester Lamdin to extend time to exchange expert reports.

9

340

MEMORANDUM by p l a i n t i f f s of points and a u t h o r i t i e s i n support of p l a i n t i f f s ' motion to administer a w r i t t e n

questionnaire to a l l prospective jurors.

sr

9 341 MOTION by p l a i n t i f f s t o administer a w r i t t e n questionnaire to

all prospective jurors.

sr

10 342 EMERGENCY JOINT MOTION on behalf of p l a i n t i f f s and defendants

to postphone hearing on Injunctive Relief.

sr

• 1 4 343 CERTIFICATION REGARDING EMERGENCY MATTER by William R.Amlong

Attorney for plaintiffs.

sr

14 344 EMERGENCY MOTION t o Compel P r i v a t e Access t o C l i e n t s , by

plaintiffs.

sr

14 345 MEMORANDUM REGARDING ISSUES OF LAW, b y p l a i n t i f f s .

sr

*8 346 ORDER (JCP 11/8/94) Granting defendants' motion to extend time

for exchange of expert reports and resumes.

sr

*9 347 UNOPPOSED MOTION by plaintiff to release records.

sr

*10 348 ORDER (JCP 11/10/94) Granting plaintiffs' motion for Order

to produce records.

sr

Scanned Image - *82CVS196 Document 496 page 17 Thu Feb 19 15:07:19 2004

111A :.'. 1/75) .
PLAINTIFF
LAMARCA, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
TURNER?LAMBDIN

FPI-HAR I I 4 7 9 5 0 K - I 5 3 4

DOCKET , NOf 8 2 - 8 1 9 ^

PAGEl6_OF

PAGES

DATE

NR.

1994 Nov.14 349

PROCEEDINGS
ORDER (JCP 11/11/94) Granting joint motion by all parties to postphone injunctive hearing. The following schedule shall be adhered to: a) 12/5/94, plaintiffs shall file a Status Report Regarding Claims for Injunctive Relief.

. .

b) 1/10/95, defendants shall complete appropriate discovery to prepare for injunctive relief trial.

c) 1/20/95, plaintiffs shall complete any further

discovery of defendants experts witnesses.

SJ

16 350 PROPOSED JURY INSTRUCTIONS, by plaintiff.

si

16 351 PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW, by plaintff SI

16 352 PROPOSED JURY INSTRUCTIONS by defts. Turner and Lambdin.

SI

16 353 PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW, by deft. Turner for the claims of LaMarca, Johnson & Saunders. si

16 354 PRETRIAL STIPULATION by the parties.

sr

16 355 MOTION for subslitution of parties v?ith Authority, by the defts . sr

21 356 RESPONSE to Emergency Motion to compel Private Access, by defts. sr

21 357 NOTICE OF TELEPHONE DEPOSITITON, by plaintiff LaMarce of

Dr. James G. Ricketts on 11/22/94.

sr

23 358 MOTION IN LIMINI to admit evidence of s-ubsequent remedial

measures implemented by Randall Music, by pltfs.

sv

23 359 MEMORANDUM OF POINTS AND AUTHORITIES in support of plaintiffs'

motion in limini to admit evidence of subsequent

measures implemented by Randall Music, by pltfs.

sv

23 360 SUPPLEMENTAL PROPOSED JURY INSTRUCTIONS, by pltfs.

sv

23 361 MOTION FOR APPOINTMENT OF A SPECIAL PROCESS SERVER, by pltfs.

sv

23 362 ORDER Granting Defense motion to substitute Gerald Abdul-Wasi as

superintendent at Glades Correctional Institution,

in place of Chester Lambdin.

sv

23 363 ORDER Granting plaintiffs' motion for a special process server,

and Albert Lee is hereby appointed to serve the

Writs of Habeas Corpus.

SV

Seantwd Imag* - 9:82CV8196 Documwit 496 pag« 18 Thu Fab 19 15:07:19 2004

DC 111A . (Rev. 1/75)
PLAINTIFF
LAMARCA, e t a l

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V.TURNER/ABDUL-WASI
PROCEEDINGS

FPI -MAR 2 - I 4 - 7 S - 5 O M - I 5
82-8196
DOCKET NO.
PAGtZ OF PAGE

bv. 23 364 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM, for Larry Pryor, Anthony Lamarca, Eddie Lee Cobb, Martin Saunders and Wayne Epprecht, by pltfs.

23 365 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Wayne Epprecht from Avon Park to an institution convenient for the place of trial/hearing on or before 12/2/94 at 2:00 p.m. (Signed by JCP on 11/23/94)

23 366 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Eddie Lee
Cobb to an institution convenient for the place of trial/hearing on or before 12/2/94 at 2:00 P.M. (signed by Judge Paine on 11/23/94)

23 367 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Anthony LaMarca to an institution convenient for the place of trial/ hearing on or before 12/2/94 at 2:00 P.M.

23 368 WRIT OF HABEAS CORPUS AD TESTITICANDUM to bring Martin Saunders to an institution convenient for the place of trial/ hearing on or before 12/2/94 at 2:00 P.M. (signed by Judge Paine on 11/23/94).

23 369 WRIT OF HABEAS CORPUS AD TESTIFICANDUM co bring Larry Pryor to an institution convenient for the place of trial/hearir on or before 12/2/94 at 2:00 P.M.
25 370 ORDER (JCP 11/23/94) Granting in part and Denying in part Plaintiff Emergency Motion to Compel Private Acces. The defendar shall permit Plaintiff's counsel a private meeting with inmates housed at Glades Correctional Institution subje to the reasonable security concerns of the Department of Corrections. Regarding inmates who are no longer housed at Glades, if the Plaintiff wishes to speak to them, it shall be in accordance with the Department of Corrections Rules and the Rules of Federal Civil Procedure governing the taking of such depositions,

28 371 NOTICE OF APPEARANCE by James K. Green, Esq. as co-counsel for the plaintiffs.

29 372 MEMORANDUM OF POINTS AND AUTHORITIES supporting plaintiffs' Motion in Limini to exclude Evidence of Plaintiffs' prior convictions, by pltfs.

29 373 MOTION IN LIMINI to exclude evidence of plaintiffs' prior convictions, by pltfs.
30 374 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM for Larry Eugene Brown, by pltfs.

30 375 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM for Billy Joe Harper

:

by pltfs.

Scanned Image - *82CV819G Document 496 page 19 Thu Feb 19 15:07:19 2004

Z U1A lev. 1/75)
PLAINTIFF ANTHONY LaMARCA, et al
NR.

CIVIL DOCKET CONTINUATION SHEET I DEFENDANT R.V. TURNER, etc. and CHESTER LAMBDIN, etc.
PROCEEDINGS

DOCKEIT NO. PAGE OF.

. PAGES

Nov. 30 376 WRIT OF HABEAS CORPUS AD TESTIFICANDUM for Larry Eugene Brown, Jr. to

bring him to an institution convenient for the place of

trial/hearing on or before 12/2/94 at 2:00 P.M.

sv

30
Dec. 2

377 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Billy Joe Harper to an instituion convenient to the place of the trial/hearing on or before 12/2/94 at 2:00 P.M.
378 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Gregory Zatler, a material witness, before the court on 12/i>/94 at 9:30 A.M., by pltfs.

379 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Willie Dock, a material witness, before the court for the trial set for 12/5/94 at 9:30 a.m., by pltfs.

380 PETITION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring James Roper, a material witness, before the court for the trial set for 12/5/94 at 9:30 a.m., by pltfs.

381 NOTICE OF FILING JUROR QUESTIONNAIRE, by the parties.

sv
sv sv
sv
sv

382 ORAL MOTION to advit Cheryl Fuller Pro Hac Vice, Granted by the Court.

sv

383 ORAL MOTION tc continue Schedule re: Injuntive Relief Position granted

after argument of counsel. The plaintiff shall have until

2/10/94 to complete discovery of the injunctive relief issue

and to advise the Court of its position with respect thereto,

The Court will set a hearing (if necessary) on the injunctive

relief issue and will allocate time for the defendant to conduct

discovery regarding plaintiffs' position regarding injunctive

relief.

sv

384 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Willie Dock to an institution convenient to the place of the trial/hearing on or before 12/8/94, sv

385 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring James Roper to an institution convenient to the place of trial/hearing on or

before 12/8/94.

sv

386 WRIT OF HABEAS CORPUS AD TESTIFICANDUM to bring Gregory Zatler to an

institution convenient to the place of the trial/hearing on or

before 12/8/94.

sv

387 RESPONSE to Plaintiffs' Motion in LiTnini to admit Evidence

of Subsequent Remedial Measures- Implemented by Randall

Music, by defendants.

sv

388 RESPONSE to Plaintiffs' Motion in Limini on Issue of

Plaintiffs' convictions, by defendants.

sv

Scanned Imag* • 9:82CV8196 Document 496 page 20 Thu F«b 19 15:07:19 2004

nc lUA , (Rev. ]/75)
PLAINTIFF
ANTHONY LaMARCA, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. Turner, et al

82-8196-
DOCKET NO.

PAGE OF

PAGES

DATE NR.
1994 Dec. 5 389 JUROR QUESTIONNAIRE

PROCEEDINGS

390 COURTROOM MINUTES: Jurors called in and questioned by Court re excusal for cause. None were excused. Jurors instructed to fill out questionnaire and return tomorrow, 12/6/94 at 10:00 A.M. :

6 391 6 392
393

COURTROOM MINUTES: Court Denies Pltfs' Motion in Limini to Excluc Evidence of Prior Convictions,

COURTROOM MINUTES: Court Denies,without prejudice,Pltfs' Motion

in Limini to Admit Evidence of Subseauent

Remedial Measures.

'

VOIR DIRE Commences: Jury trialj David Aldred, Steve H, Bronson Eddie Cobb, Ron Durrance and Billv Joe Harper Individually, v. R.V. Turner. Note: Simultanet Non-Jury Trial will be conducted with plainti: Anthony LaMarca, Martin Saunders and Edwin Johnson v. R.V. Turner, et al.

7 394 8 395
* 6 396 9 397 12 398

JURY & NON-JURY TRIAL resumed from 12/6/94.. as per court minutes. •

JURY & NON-JURY TRIAL resumed from 12/7/94.. a s n e r c o u r t minutes. .

JURY OUESTINNAIRES filled out by the 25 prosDective jurors.

:

JURY & NON-JURY TRIAL resum^ from 12/8/94'. a s Per c o u r t minutes. .
REOUESTED INSTRUCTION by Defense Counsel Steve LeClair made during trial.

12 399 13 400 14 401 * 13 402
15 403
16 404
19 405 20 406 20 407

JURY & NON^JURY TRIAL resumed from 12/9/94. as per court minutes. «

JURY & NON-JURY TRIAL resumed from 12/12/94,as per court minutes. .

JURY & NONxJURY TRIAL resumed from 12/13/94,as per court minutes. .<

COURT MINUTES< Motion by pltf, to discharge Writ of Billy Joe

Harper Granted. The Marshal is directed that the writ is

discharged by Oral Ruling of the Court.

i

Court Minutes: Jury trial resumed from 12/14/94. < a n d non-jury tria

Court Minutes s Jury trial resumed from 12/15/94Sand n o r H u r y tria]i
Court Minutes: Jury trial resumed from 12/16/94.(and non-jury trial Court Minutes: Jury trial resumed from 12/17/94.(and non-jury trial

Petition for VJrit of Habeas Corpus Testificandum to have

Edwin Johnson, held at Broward Countv Jail, brought before the

Court, (unsigned)

s

Scanmd Image - &82CV0196 Document 496 papa 21 Thu Fab 19 15:07:19 2004

liA . 1/751
•LAINTIFF
*THONY LAMARCA, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V, TURNER, e t a l ,

FPI-MAR—2-t4.7S.SOM-IS3«
DOCKET N O . 32T&L9.6-?.( 1 PAGE OF PAGES

• ATE

NR.

PROCEEDINGS

1994

c. 20 408 WRIT OF HABEAS CORPUS AD TESTIFICANDUM (JCP-12/20/94)
directing Warden and U.S. Marshal to bring Edwin Johnson

before this Court on 12/21/94 at 9:00 A.M.

s\

20 409 PROPOSED JURY VERDICT FORM, by pits.

sv

21 410 Court Minutes: Jury trial and Non^-Jury trial resumed and

concluded. Verdict in favor of Defendants

Ruling on non-jury portion of the trial

taken under advisement.

sv

21 411 VERDICT: Jury finds for the defendant R.V. Turner against

plaintiffs Aldred, Bronson, Cobb, Durrance,

and Harper.

sv

21 412
21 413
22 414

ORAL ORDER (by Court minutes) (JCP-12/21/94): Motion by parties

to resolve all writs of Habeas Corpus Ad Testificanduii

previous entered by the Court Granted. However,

the U.S. Marshal shall bring plaintiff Anthony

LaMarca to the Court on 12/22/94.

sv

Court's Instruction to the Jury.

sv

Mtn. of Deft. R.V. Turner, to extend time to file proposed findings of

fact and conclusions of law.

pa

1995
•an. 17
27 27
30
27

415 The Florida Bar/Inquiry Complaint Form. 416 Defendant Turner's Proposed Findings of Fact and Conclusions of law. 417 Motion by plaintff's to file memo in excess of 20 pages.
418 ORDER(JCP 1/30/95) Motion of Deft. R.V. Turner to extend time to file proposed findings of Fact and Conclusions of law is granted. (EON 2/2/95),
419 Plaintiffs' post-trial memorandum as to their individual damages cases.

eb. 23 420 Motion by Douglas L. Wilson, Attorney for plaintiffs to withdraw. 14 421 Transcript of Voir Dire of the Jury on before Judge Paine on 12/6/94

JOINT MOTION for Oral Argument on non^jury issues, by p l t f .

ar. 15 422

and deft.

ir. 16

ORDER (JCP3/16/95) Granting Joint Motion for Oral Arguments

423

Hearing set for 4/21/95 from 10:00am to 12:00 pm.

pa pa pa
pa pa sv
pa
SV
sv

pr. 24 42^ MOTION to permit P l a i n t i f f ' s expert to inspect Correctional
f a c i l i t y P l a i n t i f f ' s motion with Memo of Lav; for Evidentiary Hearing, by p l t f .'0

24 42! *MCTI0i; for Injunctive Relief and Memo of law, ^y p

sv

Scanned Image - 9:82CVS196 Document 496 paoe 22 Thu Feb 19 15:07:19 2004

DC 111* (Rev. 1/75)
PLAINTIFF
Anthony Lamarca, et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. Turner, et al

FPI -MAR 2-M-70-5OM-
82-81
DOCKET NO. PAGE OF .PAG

DATE

NR.

1995

PROCEEDINGS

May'5 426 16 427

RESPONSE to Plaintiffs' motion on Injunctive Relief, by defts.
FINDINGS OF FACT AND CONCLUSIONS OF LAW regarding the 3 nonjury plaintiffs (5/15/95-JCP): The Clerk of the Court is instructed to enter final judgment against the defendant and in favor of the non-jury plaintiff in the following amounts: Martin Saunders $50,000; Edwin Johnson $40,000; Anthony LaMarca $25,000; and in favor of the defendant and against Plaintiffs Aldred, Bronson, Cobb, Durrance and Harper consistent vzith the jury verdict on these claims and to close this case and to declare all pending motions not specifically addressed herein Denied as moot.
[""Further ORDERED that plaintiff's request for further JC I injunctive relief, except as previously granted and affir
/ by the 11th Circuit is Denied. Further ORDERED that the prevailing parties shall submit Bills of Costs and Motions for Attorneys' fees as appropri within 60 days of the issuance of a mandate from the 11th Circuit Court of Appeals on any appeal which may be taken from this final judgment, or within 60 days of resolution any post-trial motions, if no notice of appeal fron this judgment is filed. EOD 5/19/95-CCAP

16 4 28
31 429 June 23 430

FINAL JUDGMENT (signed by clerk 5/16/95) is entered against the defendant and in favor of the non-jury plaintiffs as follc

Martin Saunders shall recover from defendant Turner the si; of $50,000 with interest thereon at the rate of 6.28 per c

as provided by law; Edwin Johnson shall recover from defendant Turner the sum of $40,000 with interest thereon

at the rate of 6.28 percent as provided by lav; Anthony LaMarca shall recover from defendant Turner the sum of $25,000 with interest thereon at the rate of 6.28 oercent as provided by law. Consistent with the jury verdict rendered, final judgment is hereby entered herein in

favor of defendant Turner and against plaintiffs Aldred, Bronson, Cobb, Durrance, and Harper. These plaintiffs sha

take nothing from the defendant and the action is dismiss--

on the merits.

. .

"Further ORDERED that plaintiffs' request for further xnjU'

relief except as previously granted and affirmed by the 1

Circuit, is Denied. Final judgment is hereby entered aga

the plaintiff class and in favor of defendant Abdul-Wasi

.the injunctive relief claim.

Finally, it is ORDERED that the prevailing parties shall

submit bills of costs and motions for attorneys' fees as

appropriate. CCAP - M/5-19-95

.

MOTION for new trial and supporting memo.(Plaintiff s Motion;.

RESPONSE TO plaintiff's motion for new trial, by deft. Turner

Scanned tm«g« - 9:«2CV»196 Docunwnt 496 pag* 23 Thu F»b 19 15:07:19 2004

(Rev. 1/75)
PLAINTIFF
ANTHONY LAMARCA, et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. TURNER, et al

Fpl-MAI
DOCKET PAGE OF

Fai
PAGE

DATE

NR.

PROCEEDINGS

1995

June 15 431 Motion of Defendant, Robert V. Turner, for enlargment of time to respond to

plaintiffs' motion for new t r i a l .

p.-

July 3 432 Motion of Plaintiffs Lamarca, Saunders and Johnson for extension

of time through 7/10/95 to f i l e a reply to defendant's answer

to their motion for a New ^ t r i a l .

sv

10 433 ORDER (JCP -7/7/95) Granting plaintiffs motion for extension of

time by July 10, 1995.

sv

13 434 Reply by Plaintiffs Aldred, Bronson, Cobb, Durrance and Harper

to Defendant's Response to P l a i n t i f f s ' Motion for a New

Trial.

sv

Sep 1 435 Oct. 23 436
Nov. 21 437 Dec. 15 438

PARTIAL TRIAL TRANSCRIPT, DAY 5 , before Judge Paine, dated 12/13/94

stg

at 9:00 AM, pages 1 through 21

ORDER: ORDER denying Jury p l a i n t i f f s ' motion for new t r i a l . T h i s case has

been closed and the clerk of the court s h a l l d e l e t e a l l pending motions

as of the date of t h i s order. (10-23-95 JCP).

pa

NOTICE OF APPEAL from order entere on 10/23/95. Copies to USCA, and ATTORNEYS

OF RECORD. Fee Paid. Receipt if 704059.

mrr

Transcript of Hearing Re Non-Jury I s s u e s .

pa

1996

Jan. 2 j 439 Transcript of Hearing before the Hon. James C. Paine 11/23/94.

pa

**12/4/9S — ACKNOWLEDGHENT OF NOA by the USCA on 11/29/95. USCA #95-5451

Mar. 1 440

Transcript of Trial Proceedings before Judge Paine onl2/7/94 Volume 3, pages 1-170. Court Reporter Randall J. Belsvik.

sv

1 441 Transcript of Trial Proceedings before Judge Paine on 12/8/94

Volume 4, pages 1-187. Court Reporter Randall J. Belsvik.

s"v

.1 442 Transcript of T r i a l Proceedings before Judge Paine on 12/9/94

Volume 5, Pages 1-238. Court Reporter Randall J . Belsvik.

sv.

1 443 Transcript of T r i a l Proceedings before Judge Paine on 12/12/94 Volume 6, Pages 1-208. Court Reporter Randall J . Belsvik.

1 444 Transcript of T r i a l Proceedings before Judge Paine on 12/13/94

Volume 7, Pages 1-177. Court Reporter Randall J . Belsvik.

sv.

1 445 Transcript of T r i a l Proceedings before Judge Paine on 12/14/96

Volume 8, Pages 1-104. Court Reporter Randall J . Belsvik.

svi

446 Transcript of T r i a l Proceedings before Judge Paine on 12/15/96

Volume 9, Pages 1-226. Court Reporter Randall. J . Belsvik.

svi

Scamwd Image - 9:B2CV8196 Document 496 paga 24 Thu F«b 19 15:07:19 20O4

DC1UA (Rev. 1/75)
PLAINTIFF
ANTHONY LAMARKCA

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
R.V. TURNER
PROCEEDINGS

f»-NAIt J l 4 7 t » 0 » l
DOCKET NO. 82-81'
PAGE OF .PAG:

447 Transcript of Trial Proceedings before Judge Paine on 12/16/94. Volume 10, Pages 1-126. Court Reporter Randall J. Belsvik.

1 448 Transcript of Trial Proceedings before Judge Paine on 12/19/94. Volume 11, Pages 1-179. Court Reporter Randall J. Belsvik.

1 449 Transcript of Trial Proceedings before Judge Paine on 12/20/94. Volume 12, Pages 1-188. Court Reporter Randall J. Belsvik.

12 4M)
Apr.26 451
July 22 Aug. 7 452 Aug. 14 Dec. 13
1997 Jan. 7 July 3 453 July 14, 454

Transcript of Trial Proceedings before Judge Paine on 12/06/95 Volume 2, Pages 1-181. Court ReporterSonnia Martinez, Besoner & Associates.
Transcript of Trial Proceedings before Judge Paine on 12/5/94. Pages 1-42. Court Reporter Alan B. Christensen.
CERTIFICATE OF READINESS transmitted to USCA. USCA #95-5451 Motion to withdraw as attorney of record (Cheryl A. Fuller Attorney for Plalntil
ACKNOWLEDGMENT OF COR BY THE USCA on 7/24/96. USCA #95-5451
RECORD ON APPEAL transmitted to USCA, consisting of Eleven (11) volumes ofPlead Forty-Four (44) volumes of t r a n s c r i p t s and One (1) Exp. w/DE# 396. USCA #95-5451
ACKNOWLEDGMENT OF ROA by the USCA on 12/17/96. USCA //95-5451
ORDER (USCA 7/1/97) DENYING P e t i t i o n for Rehearing. USCA #95-5451
MANDATE (USCA 7 / 1 0 / 9 7 ) AFFIRMING o r d e r of t h e USDC. USCA //95-5451

Scanned Imaga - 9:82CV8196 Documant 496 pag* 25 Thu Fab 19 15:07:19 2004

BSS

CLOSED

U.S. District Court FLS - Southern District of Florida W.Palm Beach

CIVIL DOCKET FOR CASE #: 82-CV-8196

Lamarca v. Turner, et al. Assigned to: James C. Paine Demand: $0 Lead Docket: None Dkt # in other court: None

Filed: 05/14/82
Nature of Suit: 550 Jurisdiction: Federal Question

Cause: 42:1983 State Prisoner Civil Rights

ANTHONY LAMARCA plaintiff
[term 04/29/90]

Stephen Forcey Hanlon FTS 955-5564 202-828-1871 [COR LD NTC] Holland & Knight 2099 Pennsylvania Avenue NW Suite 100 Washington, DC 20006-6801 202-955-3000
William Robert Amlong [COR LD NTC] Amlong & Amlong 500 NE 4th Street 2nd Floor Fort Lauderdale, FL 33301-1154 954-462-1983
David Michael Lipman FTS 667-3361 [COR LD NTC] David P. Lipman, P.A. 5901 SW 74th Street Suite 304 Miami, FL 33143 305-662-2600

R.V. TURNER defendant
[term 04/29/90]
GERALD ABDUL-WASI, in his official capacity as Superintendent of Glades
defendant

03/08/94 03/16/95 12/11/95

Case reopened (vpd) [Entry date 03/10/94

Case closed (sv) [Entry date 05/19/95]

Appeal Information Sheet re: [Entry date 12/22/95]

Transcript due 11/4/95

(kw)

Docket as of Febrary 25, 2004 12:48 am

Page 1

Proceedings include all events.

9:82CV8196

Lamarca v. Turner, et al.

BSS
CLOSED

12/19/95 08/14/96 08/15/97 455
09/08/97 456 09/08/97 457 09/08/97 458 09/12/97 462 09/17/97 459 09/22/97 460 09/23/97 461 10/09/97 463 10/14/97 464 10/14/97 465 10/27/97 466
10/31/97 473

Appeal Information Sheet re: Appeal ; Transcript due 1/4/96 ; (mr) [Entry date 03/20/96]
ACKNOWLEDGMENT of receipt by U.S.C.A. of: Certificate of Readiness U.S.C.A. # 95-5451 (mr)
ORDER (USCA on 8/12/97) GRANTING Appellees' motion for attorney's fees as to entitlement. This matter is REMANDED to the USDC for a hearing to determine the reasonable amount of fees to be awarded to Appellees. USCA #95-5451 Copy to Judge. (mr) [Entry date 08/19/97]
MOTION with memorandum and verification in support by R.V. Turner, Gerald Abdul-Wasi to tax costs against jury trial plaintiffs and class action plaintiffs (pa) [Entry date 09/09/97]
NOTICE of filing exhibits in support of plaintiffs' application for attorneys' fees and litigation expenses, by Anthony #071588 Lamarca (Attached) (pa) [Entry date 09/09/97]
MEMORANDUM by Anthony #071588 Lamarca in support of [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (pa) [Entry date 09/10/97]
NOTICE of by R.V. Turner, Gerald Abdul-Wasi that they have conferred in good faith to resolve by agreement, defendants' motion to tax costs and have not been able to reach resolution of said motion, (br) [Entry date 10/10/97]
NOTICE of attorney appearance for Anthony #071588 Lamarca by Stephen Forcey Hanlon as special fees counsel (br) [Entry date 09/18/97]
MOTION by R.V. Turner, Anthony #071588 Lamarca, Gerald Abdul-Wasi to extend time file pleadings (br) [Entry date 09/23/97]
ORDER granting [460—1] motion to extend time to file pleadings; dates set forth in stipulated motion shall control (signed by Judge James C. Paine on 9/23/97) CCAP (br) [Entry date 09/24/97]
MOTION with memorandum in support by R.V. Turner, Anthony Lamarca, Gerald Abdul-Wasi to extend time for serving pleadings (br) [Entry date 10/15/97]
RESPONSE by R.V. Turner, Gerald Abdul-Wasi to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 10/17/97]
ORDER granting [463-1] motion to extend time for serving pleadings ( signed by Judge James C. Paine on 10/13/97) CCAP (br) [Entry date 10/27/97]
MOTION with memorandum in support by Gerald Abdul-Wasi, R.V. Turner to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses, and for leave to file memorandum in excess of 5 pages (br) [Entry date 10/28/97]
ORDER granting [466-2] motion for leave to file memorandum in excess of 5 pages ( signed by Judge James C. Paine on

Docket as of Febrary 25, 2004 12:48 am

Page 2

Proceedings include all events.

9:82CV8196

Lamarca v. Turner, et al.

BSS
CLOSED

11/05/97 468 11/05/97 469 11/05/97 467 11/05/97 471 11/05/97 470 11/05/97 472 11/21/97 474 09/11/98 475
09/30/98 476 09/30/98 11/13/98 477 01/07/99 478 01/07/99 479 01/26/99 480

10/30/97) CCAP (br) [Entry date 11/12/97]
MOTION with memorandum in support by Anthony #071588 Lamarca for Evidentiary Hearing (br) [Entry date 11/07/97]
RESPONSE by Anthony #071588 Lamarca to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 11/07/97]
REPLY by Anthony #071588 Lamarca to response of defendants to plaintiffs' motion for fees and costs (br) [Entry date 11/07/97] [Edit date 11/07/97]
APPENDIX to [467-1] response reply by Anthony #071588 Lamarca Vol II (br) [Entry date 11/07/97]
APPENDIX to: [467-1] response reply by Anthony #071588 Lamarca (br) [Entry date 11/07/97]
APPENDIX to: [467-1] response reply by Anthony #071588 Lamarca (br) [Entry date 11/07/97]
REPLY by R.V. Turner, Anthony #071588 Lamarca to response to [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (br) [Entry date 11/24/97]
ORDER granting [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs, granting [468-1] motion for Evidentiary Hearing and referring case to Magistrate Judge Ann Vitunac to hold an evidentiary hearing and to enter a report and recommendation regarding 1) the proper amount of attorneys' fees and costs to be awarded to the prevailing non—jury plaintiffs; 2) the costs (but not fees) to be awarded to the Defendants as the prevailing party on the jury Plaintiffs' claims and 3) the amount of attorneys' fees to be awarded to the plaintiffs, as the appellees in the Defendant's unsuccessful appeal, pursunat to the order of the Eleventh Circuit, granting nunc pro tune [466—1] motion to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses (signed by Judge James C. Paine on 09/11/98) CCAP (kz) [Entry date 09/16/98]
ORDER OF RECUSAL (signed by Magistrate Ann E. Vitunac on 9/29/98) CCAP (kz) [Entry date 10/02/98]
Magistrate identification: Magistrate Judge Barry S. Seltzer (kz) [Entry date 10/02/98]
ORDER Setting Hearing, set evidentiary hearing for 9:00 1/7/99 before Magistrate Barry S. Seltzer ( signed by Magistrate Barry S. Seltzer on 11/10/98) (wj) [Entry date 11/17/98]
(Courts)Exhibit and Witness list (pa) [Entry date 01/08/99]
Minutes of Evidentiary hearing RE: Attorney's Fees and Costs held before Magistrate Barry S. Seltzer on 1/7/99 (pa) [Entry date 01/08/99]
Transcript filed re: 1/26/99 Date: 1/7/99 Before Judge: Hon. Barry S. Seltzer Volume No.: I Number of pages: 1-228 (pa) [Entry date 01/27/99]

Docket as of Febrary 25, 2004 12:48 am

Page 3

Proceedings include all events.

9:82CV8196

Lamarca v. Turner, et al.

BSS
CLOSED

02/08/99 481 02/08/99 482 02/08/99 483 06/23/99 484 06/25/99 485 07/13/99 486 07/14/99 487 07/29/99 488 08/05/99 489
09/01/99 490 09/13/99 491 10/22/99 492 11/05/99 493 11/15/99 494
02/02/00 495 05/11/00 496 05/11/00 497

PLAINTIFF'S POST-HEARING BRIEF (at) [Entry date 02/09/99]
JOINT STIPULATION REGARDING SETTLEMENT OF COSTS by Gerald Abdul-Wasi, R. V. Turner, Anthony Lamarca (at) [Entry date 02/10/99]
SUPPLEMENTAL MEMORANDUM OF LAW by Gerald Abdul-Wasi, R.V. Turner to: Plaintiffs' Motion for Attorneys Fees and Defendants' Motion to tax costs (at) [Entry date 02/10/99]
NOTICE of Filing of Supplemental Authority by Gerald Abdul-Wasi, R.V. Turner (kz)
NOTICE of destruction of exhibits (kw)
ORDER REQUIRING MEDIATION OF ATTORNEYS' FEES ISSUES (Signed by Magistrate Barry S. Seltzer on 6/24/99) CCAP [EOD Date: 7/13/99] (kz)
NOTICE of Supplemental Authority by Anthony Lamarca (kz) [Entry date 07/16/99]
JOINT MOTION by Gerald Abdul-Wasi, R.V. Turner, Anthony Lamarca to extend time within which to complete mediation of attorney fees (pa)
ORDER granting [488-1] joint motion to extend time within which to complete mediation of attorney fees (Signed by Magistrate Barry S. Seltzer on 8/4/99) CCAP [EOD Date: 8/9/99] (kz) [Entry date 08/09/99]
FINAL report of Mediator. Disposition: The parties did not reach an agreement, (kz) [Entry date 09/02/99]
AGREED MOTION by R.V. Turner to extend time in which to provide the court with a submission of fee calculations (pa) [Entry date 09/17/99]
NOTICE OF PARTIAL SETTLEMENT OF ATTORNEYS' FEES AND COSTS filed by Gerald Abdul-Wasi, R.V. Turner, Anthony Lamarca (kz) [Entry date 10/25/99]
STIPULATION FOR DISMISSAL OF PLAINTIFFS' CLAIM FOR ATTORNEYS' FEES AND COSTS by Anthony Lamarca, Gerald Abdul-Wasi, R.V. Turner (kz) [Entry date 11/08/99]
ORDER OF DISMISSAL: dismissing the claims of the Plaintiffs, LaMarca, Saunders and Johnson, the Plaintiff Class and their counsel for attorneys' fees and costs having been resolved between the parties (Signed by Judge James C. Paine on 11/12/99) CCAP [EOD Date: 11/16/99] (kz) [Entry date 11/16/99]
MOTION by Gerald Abdul-Wasi, R.V. Turner to Determine Amount of Costs (kz)
COPY OF MANUAL DOCKET SHEET (kw)
REPORT AND RECOMMENDATIONS of Magistrate Barry S. Seltzer recommending that [495-1] motion to Determine Amount of Costs be GRANTED. Modgned further recommends that the District Court tax costs in the amount of $5,757.16 against David Aldred, Steve Bronson, Eddiw Cobb, Ron Durrance, and

Docket as of Febrary 25, 2004 12:48

Page 4

Proceedings include all events.

9:82CV8196

Lamarca v. Turner, et al.

BSS
CLOSED

06/06/00
06/07/00 498 07/20/00 499

Billy Joe Harper and in favor of defendant R.V. Turner. An itemization of the costs to be awarded as follow: (See order) Motion no longer referred. Signed on: 5/11/00 Objections to R and R due by 5/21/00 CCAP (pa) [Entry date 05/12/00]
CASE CLOSED. Case and Motions no longer referred to Magistrate. [495-1] motion to Determine Amount of Costs, [491-1] motion to extend time in which to provide the court with a submission of fee calculations, [488-1] joint motion to extend time within which to complete mediation of attorney fees, [468-1] motion for Evidentiary Hearing, [466—1] motion to extend time to reply to response to motion for award of attorneys fees and reimbursement of litigation expenses, [466-2] motion for leave to file memorandum in excess of 5 pages, [463-1] motion to extend time for serving pleadings, [460-1] motion to extend time file pleadings, [456-1] motion to tax costs against jury trial plaintiffs and class action plaintiffs (pa) [Entry date 06/27/00]
ORDER APPROVING AND ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION: ORDER adopting [4 97-1] report and recommendations granting [495-1] motion to Determine Amount of Costs (Signed by Judge James C. Paine on 6/7/00) CCAP [EOD Date: 6/7/00] CCAP (pa)
ADMINISTRATIVE ORDER terminating [491-1] motion to extend time in which to provide the court with a submission of fee calculations ( Signed by Judge James C. Paine on 7/20/00) CCAP [EOD Date: 7/25/00] (wee) [Entry date 07/25/00]

02/25/04
DATE OF RECEIPT

RECEIPT NUMBER

02/23/04 501719920 1 02/23/04 501719920 2 02/23/04 501719921 1

02/23/04 501719922 1 02/23/04 501719923 1 02/23/04 501719924 1 02/23/04 501719925 1
02/23/04 501719926 1
02/23/04 501719927 1 02/23/04 501719927 2

DEBIT VOUCHER

CASH RECEIPTS JOURNAL

FUND NUMBER

FY BORG

OBJ CSUBCASE NUMBER

DEF AMOUNT NO.

CASE TITLE

086900 510000 604700
322350 504100 504100 6855XX
6855XX
086900 510000

l:04-CV-080141
1:02-CR-080051 l:88-LB-4 l:88-LB-4
*** TOTAL ***

60.00 90.00 1,000.00
5.50 100.00 500.00
75.00
75.00
60.00 90.00

CARLIN EQUITIES INC VS KEITH ARONOFF
USA VS KIM FLINT FEDERAL BENCH AND BAR FUND FEDERAL BENCH AND BAR FUND

2,055.50

02/25/04
DATE OF RECEIPT

RECEIPT NUMBER

DEBIT VOUCHER

CASH RECEIPTS JOURNAL

FUND NUMBER

FY BORG

OBJ CSUBCASE NUMBER

DEF AMOUNT NO.

2 CASE TITLE

086900 322350 504100 510000 604700 6855XX

SUMMARY OF RECEIPT BY FUND DIVISION 9
FILING FEES COPY FEES CRIME VICTIMS FUND CIVIL FILING FEES REGISTRY DEPOSIT FUND
*** DIVISION TOTAL ***

120.00 5.50
600.00 180.00 1,000.00 150.00
2,055.50

02/25/04
DATE OF RECEIPT

RECEIPT NUMBER

02/24/04 501719928 1
02/24/04 501719929 1 02/24/04 501719930 1 02/24/04 501719931 1 02/24/04 501719931 2 02/24/04 501719932 1 02/24/04 501719932 2 02/24/04 501719933 1 02/24/04 501719933 2 02/24/04 501719933 3

DEBIT VOUCHER

CASH RECEIPTS JOURNAL

FUND NUMBER

FY BORG

OBJ CSUBCASE NUMBER

DEF AMOUNT NO.

1 CASE TITLE

504100
322350 322350 086900 510000 086900 510000 322350 322360 510000

l:02-CR-080061 * * * TOTAL * * *

100.00
2.00 6.00 60.00 90 .00 60.00 90.00 52.50 5.00 4.00

USA VS HEATHER ANN HALL

469.50

02/25/04
DATE OF RECEIPT

RECEIPT NUMBER

DEBIT VOUCHER

CASH RECEIPTS JOURNAL

FUND NUMBER

FY BORG

OBJ CSUBCASE NUMBER

DEF AMOUNT NO.

2 CASE TITLE

086900 322350 322360 504100 510000

SUMMARY OF RECEIPT BY FUND DIVISION 9
FILING FEES COPY FEES MISCELLANEOUS FEES CRIME VICTIMS FUND CIVIL FILING FEES
*** DIVISION TOTAL ***

120.00 60.50 5.00
100.00 184.00
469.50

 
 995 F.2d 1526 (1993)
Anthony LaMARCA, Martin Saunders and Edwin Johnson, individually and on behalf of all others similarly situated, and David Aldred, Steve H. Bronson, Jr., Eddie Cobb, Ron
Durrance, Wayne Epprecht, Michael Gordon and Billy Joe Harper, individually, PlaintiffsAppellees, v.
R.V. TURNER, individually in his former capacity as Superintendent of Glades Correctional Institution, Chester Lambdin, in his official capacity as Superintendent of
Glades Correctional Institution, Defendants-Appellants.
No. 90-5909.
United States Court of Appeals, Eleventh Circuit.
July 7, 1993.
152789 *1527 *1528 *1529 Michael B. Davis, Davis, Carroll, Colbath & Isaacs, & Stinson, P.A., West Palm Beach, FL, Walter M. Meginniss, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, FL, for defendants-appellants.
David M. Lipman, Miami, FL, William R. Amlong, Amlong & Amlong, Ft. Lauderdale, FL, James A. Tucker, Florida Rural Legal Services, Inc., Fort Myers, FL, for plaintiffs-appellees.
1530 *1530 Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and WILLIAMS[*], Senior Circuit Judge.
TJOFLAT, Chief Judge:
This is a suit brought by ten present and former inmates of Glades Correctional Institution (GCI), a Florida prison. They seek individually, under 42 U.S.C. § 1983 (1988), money damages for cruel and unusual punishment they allege they suffered because of the deliberate indifference of a former superintendent of the institution, Randall Turner. The plaintiffs still housed at GCI also seek an injunction, on behalf of all present and future inmates at the prison, against the current superintendent, Chester Lambdin, to correct certain allegedly unconstitutional conditions of confinement.
After the parties joined issue (on the plaintiffs' third amended complaint), the district court, having denied Turner's demand for a jury trial, tried the ten damages claims and entered judgment for eight of them.[1] Turner appealed, but we dismissed the appeal for want of a final judgment as the district court had not disposed of the still pending claim for injunctive relief. LaMarca v. Turner, 861 F.2d 724 (11th Cir.1988) (Table) (the first appeal). After our order dismissing the appeal reached the district court, Turner moved the court to reopen the record on the plaintiffs' damages claims so that he could introduce some additional evidence on the issue of liability. The court, concluding that it lacked jurisdiction to revisit those claims, denied the motion. The court then turned to the claim for injunctive relief.
After hearing five days of testimony relating to the current conditions of confinement, the court identified several areas of concern that "require[d its] attention." Although the challenged prison conditions had improved considerably, the court concluded that injunctive relief was necessary. The court's final judgment therefore granted injunctive relief and the money damages previously awarded, along with attorney's fees under 42 U.S.C. § 1988 (1988). The instant appeal is from that final judgment. Turner appeals the damages awards; Lambdin appeals the injunction.
We now vacate all of the damages awards and remand them for further proceedings. We do so as to five of the appellees because the court should have honored Turner's demand for a jury trial. As to the three remaining appellees, the court applied the wrong legal standard for Eighth Amendment damages liability and, moreover, erred in concluding that it lacked jurisdiction (following dismissal of the first appeal) to reopen the record and

entertain the evidence Turner proffered in defense of the damages claims. Finally, we vacate in part the injunction against Lambdin and remand the matter of equitable relief for further proceedings.
Part I of this opinion outlines the case's procedural history and describes the facts underlying the damages claims and the claim for injunctive relief. Part II rejects Turner's argument that the plaintiffs failed to present sufficient evidence to prevail, but holds that the district court applied the wrong legal standard for Eighth Amendment liability for money damages. Part III addresses the district court's grant of injunctive relief. Part IV considers Turner's Seventh Amendment jury demand. Finally, part V reviews Turner's attacks on the trial court's treatment of his motions to continue and to augment the trial record.
I.
A.
On May 14, 1982, Anthony LaMarca, then an inmate at GCI, filed a handwritten pro se complaint in the district court stating that he had "been countlessly approached, threatened with physical violence and assaulted by other 1531 inmates at [GCI] because [he] refused to participate in homosexual activities, or pay *1531 protection to be left alone."[2] He alleged that "a severe lack of protection" existed at GCI and that "the institution seem[ed] unable or unwilling to handle the situation." On September 21, 1983, LaMarca, having obtained counsel, filed an amended complaint adding three other GCI prisoners as plaintiffs, Martin Saunders, Edwin Johnson, and Henry Rosenbaum.[3] Each prisoner sought damages under 42 U.S.C. § 1983, and, as class representatives, "injunctive relief for all ... present and future inmates of GCI."[4] On November 2, 1983, the defendants, Turner and Lambdin, filed their answer to the first amended complaint.[5]
On August 26, 1985, more than a year and a half after the defendants answered the first amended complaint, the plaintiffs moved the court to amend the complaint a second time, adding seven plaintiffs, David Aldred, Steve H. Bronson, Jr., Eddie Cobb, Ron Durrance, Wayne Epprecht, Michael Gordon, and Keith Harris. Each alleged that he was assaulted while an inmate at GCI, and sought damages against Turner under 42 U.S.C. § 1983.
The defendants objected to the joinder of these additional plaintiffs, claiming that the joinder would unreasonably burden their preparation for trial which was then set for November 4, 1985. Nevertheless, the magistrate judge who was to hear the case granted plaintiffs' motion to amend.[6] The defendants immediately requested a continuance of the trial, arguing that in light of the presence of the seven new plaintiffs, they required at least ninety days for additional discovery and trial preparation. The magistrate judge granted the defendants a onemonth continuance, resetting the trial for December 2, 1985. On November 8, 1985, the defendants filed a demand for jury trial "of all issues so triable."[7]
On November 13, 1985, Turner and Lambdin requested another continuance, claiming that they could not complete discovery and prepare for trial by the December 2 trial date. Two days later, before the court could act on the motion, the plaintiffs moved the court for leave to file a third amended complaint, adding another plaintiff, Billy Joe Harper, who sought damages against Turner, and dropping Harris from the suit. The court referred both motions to the magistrate judge. On November 28, the magistrate judge gave the plaintiffs leave to amend, but refused to grant the defendants a continuance or a jury trial. The defendants, pursuant to S.D.Fla.Mag.J.R. 4(a), immediately appealed the magistrate judge's rulings to the district court. On December 2, the court affirmed these rulings and the trial began.
To summarize, on December 2, the case proceeded to trial on the allegations of the third amended complaint. 1532 This complaint stated section 1983 claims for damages *1532 against Turner, individually, by LaMarca, Saunders,
and Johnson (the original plaintiffs), and Aldred, Bronson, Cobb, Durrance, Epprecht, Gordon, and Harper (the new plaintiffs). The original plaintiffs also served as representatives for purposes of the class action claim for injunctive relief against Lambdin in his official capacity as superintendent of GCI.

B.
The magistrate judge, operating under S.D.Fla.Mag.J.R. 1(f), commenced the bench trial. At the plaintiffs' request, the magistrate judge bifurcated the proceeding, indefinitely postponing consideration of the claim for injunctive relief. The trial, therefore, considered only the damages claims against Turner. The following is a brief statement of the facts the court found.[8]
The inmate assaults complained of occurred between 1981 and 1984, during Turner's tenure as superintendent. GCI had four dorms ("A", "B", "C", "D").[9] The A and D dorms each had two wings containing three rows of twenty bunk beds. The B and C dorms were smaller, but also had bunk beds arranged in three rows. Each dorm had a shower, located at one end of the building, and a "wicket," or cage, located in the center of the dorm, that provided officers with a vantage point from which to observe the inmates. A guard's view from the wicket into the interior of the dorm and the shower area was obstructed by sheets and towels the inmates hung from their bunk beds, the placement of bunk beds next to the isles leading to the shower area, and opaque glass on the shower door. While officers were supposed to patrol the interiors of the dorms regularly, they did not.
The prison also maintained cells for disciplinary, administrative, and protective confinements. This special detention suffered from substandard conditions. The cells lacked adequate ventilation, had poor lighting, and were infested with roaches and vermin. Prisoners were allowed little or no exercise, only three showers a week, no canteen privileges, and only limited use of the law library. Inmates in the general population could gain access to the confinement area by crawling under a poorly maintained fence or with the permission of the guard in charge of the area. These confinements, therefore, failed to insulate inmates from their tormentors. Finally, an inordinate number of inmates requested protective confinement, leading to overcrowding and indicating that a serious problem existed in the general population. The court found that the conditions in protective confinement were substandard, and therefore discouraged inmates from remaining in this potential safe-haven.
Turner, in a July 16, 1981 letter to his superior, described the prevailing atmosphere at GCI: "On an almost daily basis I feel that our security staff is simply being tolerated by the inmate population rather than being in control of the operation of the institution." LaMarca, 662 F.Supp. at 673. The presence of contraband (weapons, alcohol, and drugs), corruption of GCI's staff, inmate violence, and homosexual activity were accepted as part of prison life.
While a minimal level of contraband may be an unavoidable aspect of prison life, excessive quantities of contraband flowed freely into and within the prison. Prison officials made "little or no effort ... to control illicit activity at GCI, resulting in readily-available contraband." Id. at 657. Inmates carried knives and openly used drugs. The contraband problem was compounded by staff corruption, as prison officials contributed to, and apparently profited from, the contraband, and utilized prisoners to "control" and punish other prisoners.
1533 *1533 GCI's staff permitted regular, unsupervised showings of hard-core pornographic movies. As Dr. Swanson, an expert witness for the plaintiffs, testified, these movies "would only serve to maximize the possibility of sexual and other violence." Indicative of this observation, during the movies, "[s]ounds of inmates screaming and crying could be heard."
When alerted to specific dangers, prison staff often looked the other way rather than protect inmates. Rather than offer to help, the staff suggested that the inmates deal with their problems "like men," that is, use physical force against the aggressive inmate.[10]
Several management problems persisted during Turner's tenure as superintendent: low morale among the prison's staff, high employee turnover (leading to a less experienced staff), high vacancy rates for staff positions, and inadequate supervision of employees.[11] As Turner confirmed, these problems had a direct effect on GCI's ability to maintain security. Certain of the prison's standard operating procedures were insufficient to protect prisoner safety. For example, the procedures for investigating rapes, to the extent such procedures existed, were not followed; some of the reported incidents were not investigated at all. The lack of such procedures created an

atmosphere of tolerance of rape which enhanced the risk that incidents would occur. Id. at 678 (finding an atmosphere where "inmates could rape other vulnerable inmates without concern of being detected or deterred").
Aggression was commonplace and exacerbated by the readily available contraband and an excessively permissive atmosphere. While underfunding, overcrowding, and a lack of security personnel no doubt contributed to these problems, Turner could have controlled the permissive atmosphere through proper supervision and could have remedied the contraband problems with inexpensive modifications to the prison's procedures and physical plant. In sum, as the court concluded, "Turner's overall laxity in managing and controlling his staff' directly contributed to an unconstitutional condition of confinement at GCI consisting of an undeterred atmosphere of violence. Id. at 662, 684.
For purposes of this appeal, the appellants concede the credibility of the plaintiffs' accounts of the alleged assaults. A group of inmates, one brandishing a bush ax, made an unsuccessful attempt sexually to assault LaMarca in a dorm. Inmates raped Saunders in a small bathroom adjacent to the confinement area; he reported the incident but officials did not investigate and refused his request for a medical examination. Inmates repeatedly attacked Johnson while he was in protective confinement. Inmates raped Aldred and Durrance in shower areas. Aldred reported the incident to an officer, but there was no investigation. Bronson was sexually assaulted with the handle of a baseball bat on GCI's recreation field. Cobb was stabbed by an inmate who, because of his cooperation with guards in conducting illicit activities, was protected.
C.
On January 8, 1986, after the parties had filed proposed findings of fact and conclusions of law, and had argued them before the magistrate judge, the magistrate judge issued a 135-page "Report and Recommendation" recommending a specific damages award for each of the ten plaintiffs. The district court reviewed the magistrate 1534 judge's report de novo, see Federal Magistrate's Act, 28 U.S.C. § 636(b)(1) (1988); S.D.Fla.Magis.J.R. *1534 4 (b), and adopted his recommendations in all relevant detail as to eight of the plaintiffs.[12] The court entered judgment accordingly on June 4, 1987.[13]
As noted earlier, although the district court had neither addressed nor disposed of the claim for injunctive relief, Turner appealed to this court. We dismissed the appeal for want of a final judgment and returned the case to the district court for further proceedings on that claim.
D.
On the first day of trial before the district court on the claim for injunctive relief, David M. Lipman, counsel for the inmate class, conceded that the atmosphere at GCI had changed "in such a manner that as to [many] conditions and practices, [the class] no longer [sought] injunctive relief."[14] Although the district court observed that Superintendent Lambdin "appears to be a dedicated public servant," and that physical conditions at GCI were "generally satisfactory," the court found "ample room for improvement in the conditions at GCI." In the court's view, the superintendent and his staff still did not take the threat of inmate violence seriously enough. In particular, they failed to ensure that GCI's policies designed to protect prisoners, including regular security patrols, were properly carried out. Finally, the court concluded that GCI's failure to make adequate psychological counseling available to rape victims constituted cruel and unusual punishment because it constituted deliberate indifference to a serious medical need.[15]See generally Estelle v. Gamble, 429 U.S. 97, S.Ct. 285, 50 L.Ed.2d 251 (1976).
Concluding that Lambdin had not shown that "the wrongs of the past could not reasonably be expected to recur," the court ordered injunctive relief. On October 6, 1990, the court entered a final judgment (1) providing such relief, (2) incorporating by reference the judgment it had entered on June 4, 1987, which awarded eight of the plaintiffs money damages against Turner, and (3) awarding the plaintiffs attorney's fees.

II.
Turner challenges the court's determination that he was deliberately indifferent to the plaintiffs' safety in violation of the Eighth Amendment and 42 U.S.C. § 1983. He asserts that the plaintiffs failed to make out a case of liability against him 0907 in particular, he claims that the evidence does not support the district court's findings of fact 0907 and that the court applied the wrong legal standard in determining liability. We conclude that although the record contains sufficient evidence upon which the district court could find liability, the court failed to make certain essential findings of fact and erred in its legal analysis. Consequently, we return this case to the district court for further consideration.
In subpart A, we review the elements necessary to establish Turner's liability for money damages under section 1983 and the sufficiency of the evidence presented as to each element. We review the evidence presented at trial in the light most favorable to the plaintiffs. Whitley v. Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). Because we conclude that the evidence was sufficient as to each element, in subpart B we 1535 address Turner's specific challenges *1535 to the legal standard the district court employed. As discussed in part IV, Turner was entitled to a jury trial as to the new plaintiffs' claims; we, therefore, only review these challenges in the context of the original plaintiffs' claims.
A.
The plaintiffs claim that Turner failed to provide them with reasonable protection from prison violence in violation of the Eighth Amendment. The plaintiffs do not argue that Turner knew of specific threats to their safety. Rather, they argue that Turner failed to ensure their protection from the general danger arising from a prison environment that both stimulated and condoned violence. This theory of liability creates substantial, but, as we shall see, not insurmountable obstacles to the plaintiffs' claims.
To prevail on their Eighth Amendment claim for damages brought under section 1983, the plaintiffs must prove three elements:[16] (1) a condition of confinement that inflicted unnecessary pain or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981), (2) the defendant's "deliberate indifference" to that condition, Wilson v. Seiter, ___ U.S. ___, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991), and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir.1982).[17] For our purposes, the Eighth Amendment defines the contours of the first two elements and section 1983 delimits the third.
1.
First, the condition must have inflicted unnecessary pain or suffering upon the prisoner. This objective standard "embodies `broad and idealistic concepts of dignity, civilized standards, humanity, and decency ...,'" but must be balanced against competing penological goals. Gamble, 429 U.S. at 102, 97 S.Ct. at 290 (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). The evidence presented at trial of an unjustified constant and unreasonable exposure to violence at GCI, as described in part I.B., clearly satisfies this standard. Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986); Williams, 689 F.2d at 1376; see Wilson, ___ U.S. at ___, 111 S.Ct. at 2326-27; Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) ("When prison officials have failed to control or separate prisoners who endanger the physical safety of other prisoners and the level of violence has become so high ... it constitutes cruel and unusual punishment. ..."), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), and overruled on other grounds by International Woodworkers of Am. v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir.1986);[18]Gates v. Collier, 501 F.2d 1291, 1308-10 (5th Cir. 1974).
2.
Second, the plaintiffs must show the defendant's deliberate indifference to the conditions. The Supreme Court recently held that the Eighth Amendment contains a subjective component: whether the defendant wantonly

permitted the constitutionally infirm condition to persist. Wilson, ___ U.S. at ___, 111 S.Ct. at 2323; see also Gamble, 429 U.S. at 104, 97 S.Ct. at 291. In prison condition cases, "deliberate indifference" constitutes wantonness. Wilson, ___ U.S. at ___, 111 S.Ct. at 2327.
To be deliberately indifferent, a prison official must knowingly or recklessly disregard an inmate's basic needs so that knowledge can be inferred. Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.1985), cert. denied, 479 U.S. 1536 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Because the Eighth Amendment requires a subjective standard, *1536 to demonstrate an official's deliberate indifference, a plaintiff must prove that the official possessed knowledge both of the infirm condition and of the means to cure that condition, "so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent it." Duckworth, 780 F.2d at 653. Thus, if an official attempts to remedy a constitutionally deficient prison condition, but fails in that endeavor, he cannot be deliberately indifferent unless he knows of, but disregards, an appropriate and sufficient alternative.[19]
In this case, the plaintiffs presented incident reports, internal staff reports, and reports by external investigators each supporting a finding that Turner knew that an unreasonable risk of violence existed at GCI and knew of alternative means that would have brought that risk to within constitutional norms.[20] For example, a January 30, 1980 Palm Beach County Grand Jury Presentment identified evidence of "lax security precautions," and recommended procedural changes in light of "accusations of drugs, alcohol, and other contraband, gambling, theft, confiscation, and payoffs among the inmates and personnel of GCI." Similarly, an external management review of GCI conducted from August 26 to 29, 1980, concluded that "[t]he assault trend, both inmate on inmate and inmate on staff, from July 1979, through June 1980, has increased." Finally, Turner's July 16, 1981 letter to his superiors evidenced his knowledge of a lack of
control of the operation of the institution.... Many of the officers that we have assigned to very sensitive security posts are so inexperienced or else have so little capability in this business that they simply do not realize the seriousness of dealing with the type of personnel that we are receiving.
The plaintiffs' evidence painted a dark picture of life at GCI; a picture that would be apparent to any knowledgeable observer, and certainly to an official in Turner's position.[21] An inference can be drawn from this 1537 evidence *1537 that Turner did know that GCI failed to provide inmates with reasonable protection from violence.
Mere knowledge of the infirm conditions persisting at GCI does not establish deliberate indifference. The plaintiffs must also demonstrate that, with knowledge of the infirm conditions, Turner knowingly or recklessly declined to take actions that would have improved the conditions.
Turner points to evidence of his actions to improve safety conditions at GCI to illustrate his affirmative efforts to improve the conditions of confinement there. Turner testified that he attempted to secure additional funds, make improvements to GCI's physical plant, expand recruitment efforts, and institute policies that would have reduced the risk of violence if his staff had followed them.[22] Turner argues that he was unable to ameliorate further the unsafe conditions at GCI; he did all he could within the budgetary constraints he faced, and, therefore, was not deliberately indifferent.
In rebuttal, the plaintiffs presented evidence (1) that Turner failed to ensure that his direct subordinates followed the policies he established, and (2) of specific, low-cost actions that Turner could have taken and that his successors successfully undertook. This evidence supports a finding that Turner knowingly "fail[ed] adequately to supervise correctional officers up to the lieutenant level[,] result[ing] in corruption and incompetence among the officers and a lack of reasonable protection of inmates." LaMarca, 662 F.Supp. at 665; see Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991) (suggesting that inadequate staffing may rise to deliberate indifference as to prisoner safety (citing Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980, cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981))); cf. Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (en banc) ("It is simply not enough to say ... that [the official] gave the issue a great deal of thought. The `sufficiently culpable state of mind' necessary to find deliberate indifference has more meaning than that.").

Determining whether Turner otherwise lacked the means to correct GCI's failure adequately to protect inmates requires a more detailed analysis. In Williams, we held that an official "may not escape liability solely because of the legislature's failure to appropriate requested [and necessary] funds." 689 F.2d at 1387.[23] Where, as here, the lack of funds contributed to the condition, the plaintiffs must "demonstrate that a particular defendant [nevertheless] had the capability (authority and means) to provide adequate security and did not do so." Id. at 1389.

To circumvent Turner's "insufficient funds defense," the plaintiffs presented evidence of Turner's capacity, within budgetary constraints, to improve prison safety. We agree with the district court that the plaintiffs' evidence supports the findings that Turner could have, but did not, take steps to minimize at least the following problems at GCI:

1538

(1) improper and inadequate staff training ..., (2) a staff out of control who did not report rapes, assaults, and illegal activities up through the chain of command, (3) *1538 [Turner's] failure to supervise staff and administer measures which would "minimize the chance of error and maximize the full satisfaction of constitutional protection," in (i) not stationing officers to patrol throughout the dormitories, particularly at night, and leave the wicket cage, and in (ii) permitting the obscuring of vision of the officers in the wicket by allowing inmates to hang sheets ..., (4) [Turner's] shocking failure to employ any standard procedure to investigate incidents of alleged rapes, [ (5) ] [Turner's] failure to provide inmate movement controls thus reducing the casual egress and ingress of aggressive assailant wolves within the open dormitories, and [ (6) ] [Turner's] failure to transfer know[n] assailants or inmates who should have been known to be assailants out of GCI.

LaMarca, 662 F.Supp. at 708 (citations omitted).

Consideration of such evidence comes perilously close to second-guessing the difficult choices that prison officials must face and of improperly extending deliberate indifference standards to mere "inadvertence or error[s] in good faith." Wilson, ___ U.S. at ___, 111 S.Ct. at 2324 (citing Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986)). Nevertheless, such evidence is probative of the means available to Turner and must be considered. This evidence directly addresses the question of whether monetary restraints frustrated Turner's good faith efforts, or whether he knowingly or recklessly disregarded solutions within his means.[24] While much of the record indicates that Turner did make good faith efforts to resolve the dilemmas facing GCI, [25] the evidence does support the plaintiffs' position that Turner recklessly disregarded the necessary means to protect inmate safety.

3.

Third, section 1983 "requires proof of an affirmative causal connection between the actions taken by a particular person `under color of state law' and the constitutional deprivation." Williams, 689 F.2d at 1380 (citing Monell v. Department of Social Servs., 436 U.S. 658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)); Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (en banc) (requiring an act or omission causing the constitutional deprivation), cert. denied, ___ U.S. ___, 112 S.Ct. 972, 117 L.Ed.2d 137 (1992). Section 1983 thus focuses our inquiry on whether an official's acts or omissions were the cause 0907 not merely a contributing factor 0907 of the constitutionally infirm condition.
"A causal connection may be established by proving that the official was personally involved in the acts that resulted in the constitutional deprivation." Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Because the analysis focuses on the defendant's conduct, the doctrine of respondeat superior does not apply. Whether a defendant actually controls, or fails properly to supervise a subordinate, however, may prove to be relevant inquiries. See Rizzo, 423 U.S. at 375-76, 96 S.Ct. at 606.
If a plaintiff establishes a causal link between the defendant's acts or omissions and the infirm condition, the defendant is "precluded from contending that the unconstitutional condition was not at least a proximate cause of ... injuries" that arose from that condition. Williams, 689 F.2d at 1389. This is not to say that a plaintiff need not

show a causal link between the constitutionally infirm condition and the alleged injuries. Rather, the finding that a prison condition offends the Eighth Amendment presupposes the distinct likelihood that the harm threatened will 1539 result. The wrong in Eighth Amendment cases is the deliberate indifference to a constitutionally infirm condition; *1539 that wrong must, in turn, have been the proximate cause of the plaintiffs' injuries, here the injuries brought about by the assaults.
In Doe v. Sullivan County, 956 F.2d 545 (6th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 187, 121 L.Ed.2d 131 (1992), the Sixth Circuit addressed causation under section 1983 arising from allegations of "systematic deficiencies" in a prison's protection of inmates similar to those in the instant case. The plaintiff presented evidence of overcrowding, dark cells, insufficient staff, lack of mental and physical evaluations, and inadequate surveillance. Id. at 550. Additionally, a penological expert testifying for the plaintiff concluded that there was a pattern of violence among inmates at the prison and that because of the plaintiff's slight build and mental disability, prison officials should have placed him in protective custody. Id. at 549. In reviewing the sufficiency of the evidence to show causation, the Sixth Circuit concluded "that more is required than [a] naked assertion that the assault would not have occurred but for the offensive conditions. To hold otherwise would effectively transform the causality requirement from a substantive element of proof into one of pleading." Id. at 550. In this case, the plaintiffs presented evidence to support their allegations that Turner "was in a position to take steps that could have averted" the alleged unconstitutional condition at GCI, "but, through [deliberate] indifference, [he] failed to do so." Williams, 689 F.2d at 1384.
The plaintiffs presented evidence supporting five conditions of confinement that were under Turner's control and that together created an unconstitutional risk of violence at GCI: (1) a "prevalence of ... weapons" at GCI, (2) the lack of adequate patrols, (3) the lack of adequate reporting procedures for rapes and assaults, (4) the presence of "obvious and rampant indicia of homosexual activity," and (5) a lack of supervision of officers leading to corruption and incompetence. LaMarca, 662 F.Supp. at 664-65. The evidence supports the plaintiffs' assertion that Turner could have brought GCI within constitutional norms through more diligent supervision of his officers, by establishing and enforcing rules and procedures to eliminate specific sources of danger to prisoners, and through low-cost modifications to GCI's physical plant. In particular, Turner could have taken significant steps to eliminate the highly permissive atmosphere at GCI both as to officers shirking their duties and as to prisoners engaging in extortion, harassment, sexual activity, and sexual and other assaults.
As we discussed in part II.A.2., the evidence strongly supports a finding that, even within the constraints he faced, Turner had the means substantially to improve prisoner safety at GCI. This evidence also supports findings that Turner knew that the actions he undertook would be insufficient to provide inmates with reasonable protection from violence, and that other means were available to him which he nevertheless disregarded. Such evidence provides the necessary causal link between Turner and the infirm conditions at GCI.
Finally, the evidence shows a link between the unconstitutional conditions and the plaintiffs' injuries. The record supports the district court's finding "that due to [their] very nature as acts of violence, the rapes that occurred are not isolated incidents of sexual conduct, but rather flow directly from the lawless prison conditions at GCI.... [These conditions created] the background and climate which ... preordained homosexual rapes and other inmate assault[s]." LaMarca, 662 F.Supp. at 687. The evidence thus permits a finding of a causal link between the objectively intolerable conditions at GCI and the plaintiffs' injuries.
B.
Having determined that the plaintiffs presented sufficient evidence to establish liability on their damages claims against Turner, we turn to Turner's specific challenges to the legal standard the district court employed in assessing liability. Turner contends that the district court clearly erred in its analysis of (1) his deliberate 1540 indifference to the constitutionally infirm injury producing conditions, *1540 and (2) causation. We disagree.[26]

1.
Turner challenges the district court's finding that he knew of several problems at GCI that contributed to the constitutionally infirm conditions.[27] He argues that without this finding, the district court might not have concluded that he knew of the infirm conditions and thus that he had been deliberately indifferent to the plaintiffs' safety.[28]
Turner points to specific language in the district court's opinion indicating that the court applied a negligence standard to determine his knowledge of the infirm conditions and the problems that caused them. For instance, in its discussion of Turner's indifference to prisoner safety, the court stated that "[a] section 1983 plaintiff must prove either that the official knew or should have known that his action infringed a clearly established constitutional right of the plaintiff, regardless of the officials' subjective intent...." LaMarca, 662 F.Supp. at 663 (emphasis added) (internal quotations and citations omitted); see also id. at 658, 678-79 (relying on knowledge "discernable to any prudent prison administrator"). In light of Wilson, which has clarified that a subjective standard must be applied to Eighth Amendment claims, the district court's resort to such an objective standard was erroneous.
The court also erred by inquiring as to Turner's knowledge during the "relevant time period of Plaintiffs' damage claims," instead of making a directed inquiry into Turner's knowledge at the time of each incident. See, e.g., LaMarca, 662 F.Supp. at 708-09 ("Plaintiffs' claims are not isolated incidents. They stem from a far ranging and serious failure of Defendant Turner to properly manage[] GCI."). The alleged assaults occurred over a three-year period, and, as one would expect, Turner's knowledge ripened during this period. The district court failed to determine properly whether Turner possessed the requisite knowledge at the time of each incident.
As we have already discussed, the evidence as a whole, and, in particular Turner's July 16, 1991 letter, provide strong support for the court's ultimate conclusion that Turner knew of the pervasively and obviously unsafe conditions at GCI. The district court, however, did not rely solely on such evidence. We therefore cannot conclude as a matter of law that Turner had a sufficient awareness of the infirm conditions to satisfy Wilson's subjective standard. Thus, while sufficient evidence exists upon which to find knowledge of the conditions, see supra part II.A, the court must reconsider its findings as to whether Turner had knowledge of or recklessly disregarded the constitutionally infirm conditions at the time of each incident.
2.
Turner also challenges the court's findings as to causation, i.e., whether his deliberate indifference caused the alleged constitutionally infirm condition, and whether the condition caused the assaults. The district court incorrectly stated that an official must "accomplish[] what [can] be accomplished within the limits of his authority." 1541 LaMarca, 662 F.Supp. at 664 (citing Williams, 689 F.2d at 1388). As our discussion *1541 of Turner's deliberate indifference and causation indicates, see supra parts II.A.2 & 3, merely showing that an official had the means to correct a constitutional infirmity will not suffice. For the plaintiffs to demonstrate the requisite causal nexus, Turner must not only have had the means to correct the alleged constitutional infirmities, but also must have at least recklessly disregarded the inadequacy of the approach he took, the availability of other approaches, and their capacity to provide a cure. As we have already noted, it is, after all, "`obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause....'" Wilson, ___ U.S. at ___, 111 S.Ct. at 2324 (quoting Whitley, 475 U.S. at 319, 106 S.Ct. at 1084) (citations omitted; internal quotations omitted; emphasis omitted); cf. Fernandez v. United States, 941 F.2d 1488, 1494 (11th Cir.1991) ("To establish a valid eighth amendment claim, `a prisoner must allege acts or omissions sufficiently harmful to evidence [the] deliberate indifference [of prison officials]....'" (quoting Gamble, 429 U.S. at 106, 97 S.Ct. at 292)). This approach ensures that we do not question the direction taken by officials in performing the complex and arduous task of running prisons. See Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973) ("Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the

correction of those problems."). Thus, we must revisit our analysis of Turner's subjective intent to ensure that only evidence probative of causation in the Eighth Amendment context will be considered.
The district court did not identify the potential solutions that Turner actually or recklessly disregarded. Additionally, the court's causation inquiry was not circumscribed by the knowledge Turner possessed at the time of each alleged assault, a particularly important consideration since the district court found that conditions slowly, but continuously, improved during Turner's tenure as superintendent. Instead, the court assumed that Turner actually knew, or should have known, of these measures. Thus, even though the plaintiffs' evidence supports a finding of causation, see supra part II.A.3, the court's finding that the solutions available to Turner were sufficient may have erroneously charged him with an Eighth Amendment duty he did not have. The court must, therefore, reconsider the issue of causation and determine whether Turner knowingly or recklessly disregarded any corrective measures. If he did, the court must then determine whether, taken as a whole, these measures would have eliminated the infirm conditions for which he was responsible.
III.
We now shift our focus from the retrospective analysis of the plaintiffs' damages claims against Turner to the prospective relief sought by the class of present and future inmates of GCI. Three challenges to the court's order granting injunctive relief merit discussion: (1) the conditions at GCI had improved, and, therefore, injunctive relief was no longer required, (2) Lambdin, GCI's current superintendent, had not been deliberately indifferent to prisoner safety, and (3) the district court's equitable grant unnecessarily intruded upon GCI's management.
A.
First, Lambdin argues that because GCI reasonably protected inmates from violence at the time of trial, the court erred in granting injunctive relief. We disagree. Subsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative. When a defendant corrects the alleged infirmity after suit has been filed, a court may nevertheless grant injunctive relief unless the defendant shows that absent an injunction, the institution would not return to its former, unconstitutionally deficient state. Jones, 636 F.2d at 1375; Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Comm'rs, 622 F.2d 807, 822 (5th Cir.1980) (finding that "the defendant [must] demonstrate that there is no reasonable expectation that 1542 the wrong will be repeated" *1542 (internal quotations omitted)), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981). We have held that
[j]urisdiction may abate if there is no reasonable expectation the alleged violations will recur and if intervening events have completely and irrevocably eradicated the effects of the alleged violations. To defeat jurisdiction on this basis, however, defendants must offer more than their mere profession that the conduct has ceased and will not be revived.
Hall v. Board of School Comm'rs, 656 F.2d 999, 1000-01 (5th Cir. Unit B 1981) (citations omitted). The burden is thus "a heavy one." United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
The district court, in the damages phase of the case, found that GCI failed to provide inmates with reasonable protection from violence. On appeal, Lambdin has not challenged this determination, but has instead relied on GCI's elimination of the infirm conditions to defeat the court's grant of injunctive relief.[29] The district court, however, concluded that Lambdin had not taken sufficient steps to ensure that GCI's past wrongs would not be repeated. The record supports this finding. It was, therefore, appropriate for the court to consider granting the plaintiffs' request for injunctive relief.
B.
Second, relying on the court's observation that Lambdin "appears to be a dedicated public servant who is trying very hard to make GCI an efficient and effective correctional institution," Lambdin argues that the court erred in

ordering injunctive relief. In essence, he asserts that the court should have focused on his deliberate indifference, instead of the institution's historical indifference. The Supreme Court in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), explained the significance of suits against state officials in their official capacities:
Official-capacity suits ... "generally represent only another way of pleading an action against an entity of which an officer is an agent." As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.
Id. at 165-66, 105 S.Ct. at 3105 (citations omitted); see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." (citing Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985))); Owens v. Fulton County, 877 F.2d 947, 951 n. 5 (11th Cir.1989). Thus, while changes in circumstances may change the nature of, or necessity for, injunctive relief, substitution of Lambdin as the named official does not bar such relief. See Graham, 473 U.S. at 166 n. 11, 105 S.Ct. at 3105 n. 11.
C.
Third, Lambdin challenges the scope of the district court's order. We must therefore determine whether the relief granted by the court squares with the alleged harm. The court's order dealt with three conditions of confinement: (1) GCI's protection of inmates, (2) conditions in protective confinement, and (3) counseling of rape victims. The later two conditions, although tangentially related to prisoner safety, required a separate constitutional foundation. We address each below.
1.
We have so far assumed, as the parties have, that at the time of the second trial (on the claim for injunctive relief), GCI provided inmates with reasonable, and constitutionally adequate, protection from violence. Although 1543 the district court did not reach this *1543 issue, we are satisfied, after reviewing the record, that this assumption is correct.
Absent an existing constitutional violation, the district court's power to grant equitable relief was limited to ensuring that GCI continued to provide inmates with adequate protection. Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971) ("[T]he nature of the violation determines the scope of the remedy.") While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong. Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) ("[F]ederal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation...."). Here, the wrong was the risk that GCI would once again disregard the safety of its inmates.
In Jones, we considered the appropriate form of relief when, during the pendency of the court's proceedings, the defendants cured the constitutionally infirm conditions alleged by inmate-plaintiffs. We stated that
Judges are neither correctional officers nor penologists. Even if we had the expertise to analyze the practical and theoretical implications of the conditions of incarceration, we would have no warrant to impose our views, for a legislature 0907 state or federal 0907 is not required by the Constitution to operate penal institutions in accordance with criminological doctrine or to employ only experts in their management. ... Moreover, we are aware that we should not, "in the name of the Constitution, become ... enmeshed in the minutiae of prison operations."

636 F.2d at 1368 (quoting Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1974)). In keeping with the mandate of Bell v. Wolfish, we prescribed only general constraints designed to ensure that the prison would continue to operate in a constitutional manner.
In this case, the district court ordered Lambdin to maintain policies requiring (1) that the dorms and confinement areas be regularly patrolled and that patrols have clear views of the relevant areas, (2) the use and maintenance of metal detectors, (3) regular shakedowns, and (4) the disciplining of prisoners found in possession of contraband. These aspects of the court's order, while not comprehensive, target GCI's potential to slacken its efforts to protect its inmates.
To effectuate its prescribed policies, however, the court also ordered Lambdin to discipline his guards, detailing the type of sanctions and the conditions under which they should be employed. We find that this unnecessarily intrudes on GCI's operations. See Bell, 441 U.S. at 547, 99 S.Ct. at 1878; Rhodes v. Chapman, 452 U.S. 337, 351, 101 S.Ct. 2392, 2401, 69 L.Ed.2d 59 (1981). The court should have "accorded wide-ranging deference in the adoption and execution of policies and practices that in [the prison official's] judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell, 441 U.S. at 547, 99 S.Ct. at 1878. It was sufficient that the court enjoined Lambdin to ensure that the specific policies were carried out. Going beyond this to restrict the methods by which Lambdin effectuated these policies was an inappropriate use of the court's equity powers.
2.
The district court's injunctive order also addressed conditions in protective confinement. The court determined that during Turner's tenure, conditions in protective confinement were punitive in nature. By the time of the second trial, however, this was no longer the case. The court, therefore, should have limited its order to ensuring that the conditions continued to conform with Eighth Amendment standards. Instead, the court fine-tuned the existing conditions by (1) eliminating double-bunking, (2) precluding stays in protective confinement in excess of thirty days, (3) requiring the transfer of inmates in protective confinement who could not be returned to the 1544 general prison population, and (4) ensuring that the lighting in protective confinement conforms to American *1544 Correctional Association guidelines.[30] The conditions targeted here, whether taken singularly or together, do not constitute cruel and unusual punishment and do not ensure that the prior infirm conditions will not recur. See Wilson, ___ U.S. at ___, 111 S.Ct. at 2327 (Separate failures of prison administration designed to protect inmates "may establish an Eighth Amendment violation `in combination' when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need...."). We, therefore, vacate the district court's injunction and remand the claim for injunctive relief so that the court may determine whether an injunction is necessary to ensure the continuance of currently constitutionally adequate conditions in protective confinement.
3.
Finally, the district court ordered psychological counseling of rape victims. The court found that GCI unnecessarily and wantonly inflicted pain upon prisoners by failing to provide them with post-rape psychological or psychiatric counseling. This aspect of the court's injunction was based on independent findings of fact that inmates are systematically denied access to such treatment, cf. Harris, 941 F.2d at 1505, and that such denials constitute deliberate indifference to a serious medical need, see Gamble, 429 U.S. at 104, 97 S.Ct. at 291; Greason v. Kemp, 891 F.2d 829, 834 (11th Cir.1990). These findings are well supported by the record. The court enjoined Lambdin to (1) provide training to all prison guards in the handling of rape complaints, (2) require special training for the staff psychiatrist and the staff psychologist, and (3) "promulgate an official referral procedure for all rape victims to the resident psychiatrist or psychologist for evaluation." We affirm these aspects of the injunction.
IV.

A.
Turner appeals the district court's ruling that he waived his Seventh Amendment right to jury trial as to the new plaintiffs' claims.[31]See Fed.R.Civ.P. 38(b), (d). The right to "trial by jury is a vital and cherished right, integral in our judicial system," City of Morgantown v. Royal Ins. Co., 337 U.S. 254, 258, 69 S.Ct. 1067, 1069, 93 L.Ed. 1347 (1949), and a waiver of this right must be meaningful, In re Zweibon, 565 F.2d 742, 746 (D.C.Cir.1977) (Rule 38 was not "intended to diminish" the constitutional right to a trial by jury in civil cases, "and should be interpreted, where possible, to avoid giving effect to dubious waivers of rights."). Moreover, "as the right of jury trial is fundamental, [we must] indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811-12, 81 L.Ed. 1177 (1937); Borgh v. Gentry, 953 F.2d 1309, 1311 (11th Cir.1992) ("[A] court's discretion [to deny a jury trial] is very narrowly limited and must, wherever possible, be exercised to preserve jury trial." (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 956, 3 L.Ed.2d 988 (1959))). We therefore review the district court's denial of a jury trial with "the most exacting scrutiny." City of Morgantown, 337 U.S. at 258, 69 S.Ct. at 1070. Unless the error is harmless, we must reverse judgments founded upon an unconstitutional denial of a jury trial. Western Elec. Co. v. Milgo Elec. Corp., 573 F.2d 255, 257 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978).
The Federal Rules of Civil Procedure provide that "[t]he right to trial by jury as declared by the Seventh 1545 Amendment *1545 to the Constitution ... shall be preserved to the parties inviolate." Fed.R.Civ.P. 38(a). A party
may, however, waive this right by failing to make a timely demand upon the courts. Under Rule 38, as to "any issue triable of right by a jury," waiver occurs ten days after "service of the last pleading directed to such issue." Fed.R.Civ.P. 38(b), (d); see Guajardo v. Estelle, 580 F.2d 748, 752-53 (5th Cir.1978). Such waivers apply only to the issues raised by the pleadings; subsequent amendments to the pleadings can raise "new issues" for which the right to a jury remains.
In this case, Turner did not demand a jury trial within ten days of his answer to the first amended complaint. He therefore waived his right to jury trial as to issues raised in that complaint. He argues, however, that he did not waive his right to jury trial as to the new plaintiffs' claims.
The district court, in rejecting Turner's demand for a jury trial, concentrated on Rule 38's use of the term "issue," which the court noted refers to those issues "raised in the original complaint." LaMarca, 662 F.Supp. at 652; Rosen v. Dick, 639 F.2d 82, 94 (2d Cir.1980) ("[T]he term `issue' means something more than the evidence offered and the legal theories pursued.... [One must ask whether] the ultimate issue for decision is different."). The court concluded that no new issues were raised by the amended pleadings and struck Turner's jury demand.
The district court's approach illustrates the difference between the jury's role in resolving specific factual issues, and the application of such determinations to legal theories. Guajardo, 580 F.2d at 753. New facts that "merely clarif[y] `the same general issues' raised in the original complaint" do not create new issues of fact upon which to assert a jury demand. Lanza v. Drexel & Co., 479 F.2d 1277, 1310 (2d Cir.1973) (en banc) (quoting Moore v. United States, 196 F.2d 906, 908 (5th Cir.1952)); id. (The "underlying facts and basic legal theory [must be] changed by the amendments" in order to create new issues.). Amendments to pleadings thus may contain new facts which do not create new issues triable by a jury. Id.
These basic principles for identifying new issues were developed in cases where all relevant parties were before the trial court at the time of the initial waiver. In such cases, a trial court applies these principles to determine the extent of a demanding party's prior waiver. In this case, however, the second amended complaint added seven new plaintiffs permissively joined under Fed.R.Civ.P. 20(a).[32] Each new plaintiff asserted an individual claim for damages arising from a separate incident at GCI. Moreover, the incidents alleged by three of the new plaintiffs (Cobb, Durrance, and Aldred) had not occurred at the time Turner waived jury trial as to the issues raised by the first amended complaint. Turner asserts that waivers under Rule 38 do not apply in such circumstances. We agree.

The plaintiffs do not directly address whether the district court's approach of identifying new issues provides the proper analysis when newly joined parties raise unique claims. Instead, they tenaciously argue (as they successfully did below) that all issues raised in the second and third amended complaints arose from the same "general area" of dispute or involve the "same matrix of facts" identified in the first amended complaint. See Lanza, 479 F.2d at 1310. Thus, they contend that the second and third amended complaints do not raise new issues revitalizing Turner's right to jury trial.[33]
1546 *1546 Underlying the plaintiffs' resistance to Turner's jury demand is their mistaken belief that this case involved only "one prison civil rights suit under 42 U.S.C. § 1983." This case involved eleven separate actions: ten independent damages actions and one class action for injunctive relief. Each of these actions raised distinct factual issues. Turner was not "put on notice [as to these claims] by the original round of pleadings in this case." Cedars-Sinai Medical Cir. v. Revlon, Inc., 111 F.R.D. 24, 30 (D.Del.1986). All he could have anticipated at the time of his waiver was that evidence of the incidents underlying the new plaintiffs' claims might be presented at trial. Even under its analysis, the district court erred by striking Turner's jury demand.[34]
Turner raises an alternative approach to analyzing his right to jury trial which determines which issues must, on remand, be tried before a jury. He observes that if the new plaintiffs had brought separate suits, an effective waiver under Rule 38 in one suit would not extend to the others. Under the district court's approach, however, permissive joinder provides a means to bypass a party's right to jury trial, thus making this fundamental right contingent upon the procedural mechanism through which a claim comes before a trial court. When such processes are within the sole control of one side of a dispute 0907 here the plaintiffs 0907 and subject only to the discretion of the trial court, application of the Federal Rules cannot extirpate a party's constitutional right to jury trial.
In this case, three and one-half years after LaMarca filed his pro se complaint, and only two months before trial, Turner demanded a jury trial as to all issues raised in the new plaintiffs' claims. The plaintiffs stress these dates as indicative of the frivolousness of Turner's position. Yet, the plaintiffs created this issue by seeking to join the new plaintiffs in the heat of trial preparation, and then insisting that Turner relinquish his right to present his case to a jury. Turner objected to the joinder of the new plaintiffs and stressed his intent to demand a jury trial on all issues raised by the new claims. Nevertheless, the court permitted joinder of the new claimants, and did so without preserving Turner's right to a jury trial. Turner's right to a jury trial thus fell victim to the trial court's 1547 discretionary decision to permit joinder of the new claimants.[35] Notwithstanding *1547 any common thread that may have existed between the original and amended complaints, even if to a "sickening proportion," LaMarca, 662 F.Supp. at 653, we cannot sanction such a result. We hold, therefore, that Turner was entitled to a jury trial as to the new plaintiffs' claims.[36]
B.
Turner argues that his right to jury trial as to the new plaintiffs' claims trumps his waiver as to common issues raised by the original plaintiffs' claims,[37]see In re Kaiser Steel Corp., 911 F.2d 380, 388 (10th Cir.1990) (holding, in case with multiple parties, that waiver of common issue does not occur until ten days following the last pleading by any party), and therefore that he is entitled to a jury as to all claims. Turner concedes, however, that he knowingly waived his right to a jury as to the original plaintiffs' claims. Without a constitutional underpinning upon which to rest, Turner must demonstrate that the district court erred in its application of Rule 38 and that he was harmed by this error. Cf. id. (holding amendments to pleadings do not revive the right to jury trial as to issues already framed). Because he has not done so, Turner's initial waiver as to the original plaintiffs' claims remains effective.
V.
Turner next appeals (1) the district court's refusal to continue the December 2, 1985 trial; (2) the court's refusal following the trial to consider, as part of the trial record, several depositions taken during and shortly after the trial;

and (3) the court's refusal to reopen the record of the trial to receive some additional evidence Turner obtained while the first appeal (of the damages awards) was pending in this court. We review these rulings for abuse of discretion. Connecticut Gen. Life Ins. Co. v. Breslin, 332 F.2d 928, 932 (5th Cir.1964).
As indicated earlier, after the plaintiffs filed their second amended complaint (which added seven plaintiffs to the case) on August 26, 1985, the defendants moved for a continuance of the trial which had been set for November 4, 1985. The district court granted their motion on November 10, continuing the trial until December 2. The defendants wanted more time for discovery and to prepare for trial; we cannot say, however, that the court abused its discretion in giving them the extra time allotted. See Edward Leasing Corp. v. Uhlig & Assocs., 785 F.2d 877, 881-82 (11th Cir.1986); Menendez v. Perishable Distribs., Inc., 763 F.2d 1374, 1379 (11th Cir.1985). [38]
The defendants renewed their motion for a continuance on November 13, stating that they would not be able to complete their discovery by the scheduled trial date. According to the defendants, they needed to depose several witnesses who had been identified by the new plaintiffs when the defendants took their depositions. Whatever 1548 may have been the defendants' need for a continuance *1548 at that time, the need increased when, as the trial was about to begin, the district court gave the plaintiffs leave to file their third amended complaint adding Billy Joe Harper's damages claim.
Believing that Harper's claim raised no new issues, and thus created no need for additional discovery, the district court refused to grant a continuance. The court's belief was unfounded; Harper's claim raised several new issues requiring discovery. See supra note 34. After the trial began, the magistrate judge apparently had second thoughts about the defendants' need for a continuance; he permitted them to take discovery depositions both during and after the trial with the understanding that these depositions could be made a part of the trial record at a later date. The defendants accepted this arrangement, evidently believing that it would eliminate any prejudice the denial of the continuance otherwise might have occasioned. Given this acceptance by the defendants, we find that the defendants effectively waived their objection to the December 2 trial date.
The trial of the damages claims against Turner ended on December 16, 1985. That day, the magistrate judge instructed counsel to file their proposed findings of fact and conclusions of law by December 23, and scheduled oral argument for December 27. Oral argument was held that day, and the magistrate judge indicated in his report to the district court that he would find for the plaintiffs. On January 8, 1986, the plaintiffs moved the magistrate judge to exclude from the record seven depositions that defendants had taken with the permission of the plaintiffs and the court. Plaintiffs' counsel argued that the depositions should be excluded because the defendants had denied counsel access to the deponents' prison records and thus a meaningful opportunity to cross-examine the witnesses. The magistrate judge granted the motion, and the district court, after considering the magistrate judge's report and recommendation, affirmed.
In his brief to us, Turner does not explain how the exclusion of the seven depositions from the record prejudiced his case. Accordingly, Turner has shown no abuse of discretion.
Finally, while the district court's disposition of the plaintiffs' damages claims was before us on appeal, Turner's counsel searched for evidence to rebut Dr. Swanson's testimony as to the conditions prevailing at GCI during Turner's tenure.[39] They uncovered documentary evidence that, Turner represents, undermines the court's findings.[40] After we dismissed the first appeal and returned the case to the district court, Turner moved the court to "reopen" the record of the damages trial and consider the new evidence. The court, believing that it lacked jurisdiction to do so, refused.[41]
The district court plainly had the authority to reopen the record and to consider the new evidence. The court had such authority at least until, on October 6, 1990, when it entered the final judgment. See Fed.R.Civ.Pro. 59; 1549 S.D.Fla.Magis.R. 4(b) (A *1549 district court is free to "receive further evidence, recall witnesses, or recommit the matter to the Magistrate Judge with instructions."); La Fever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th Cir.1978). Prior to the entry of judgment (and the denial of the defendants' motion for a new trial), the court had the power to revisit the entire case.

Since we remand the damages claims of the new plaintiffs for trial before a jury, the district court's action in refusing to consider the new evidence only affects the claims brought by LaMarca, Saunders, and Johnson. Because the court might have considered Turner's new evidence, had it thought it had the power to do so, we instruct the court to consider Turner's proffer. We intimate no view, however, as to whether the court should accept it and reopen the proceedings as to these three plaintiffs.
VI.
Turner retained the right to trial by jury as to the new plaintiffs' claims. We therefore vacate the money judgments for Durrance, Cobb, Bronson, Aldred, and Harper, and remand their claims for a new trial. We remand the judgments favoring LaMarca, Johnson, and Saunders for reconsideration in light of our discussions in parts II and V. We affirm in part, and remand the court's grant of injunctive relief for further proceedings consistent with part III of our opinion. Finally, in light of these holdings, we must vacate the court's attorneys' fees award.
IT IS SO ORDERED.
[*] Honorable Jerre S. Williams, Senior U.S. Circuit judge for the Fifth Circuit, sitting by designation.
[1] As we explain in the text infra, a magistrate judge actually heard the claims; the district court disposed of them after considering de novo the former's report and recommendation.
[2] A more detailed exposition of the facts supporting the plaintiffs' damages claims is set out in the magistrate judge's Report and Recommended Findings of Fact and Conclusions of Law, LaMarca v. Turner, 662 F.Supp. 647, 667-717 (S.D.Fla. 1987), which the district court reviewed de novo and adopted in all relevant parts, see id. at 650-667. The court's subsequent order granting injunctive relief was not published.
[3] The court later severed Rosenbaum's claim, and it is not before us.
[4] On April 13, 1984, the district court certified a class of "all those persons who are or will be incarcerated at the Glades Correctional Institution located in Belle Glade Florida." See Fed. R.Civ.P. 23(a), (b)(2).
[5] Actually, Turner answered the first amended complaint. Lambdin was not made a defendant until he became superintendent of GCI in December 1985. For convenience we refer to Lambdin throughout the opinion as the defendant for the injunctive relief claim.
[6] The district court had referred the case to a magistrate judge to conduct an evidentiary hearing on all claims and to prepare a report and recommendation. See S.D.Fla.Mag.J.R. 1(f). We refer to this hearing as the "trial" or the "damages trial."
[7] The defendants made their jury demand, but did not answer the second amended complaint. Their failure to file an answer became unimportant when, as the following text indicates, the plaintiffs obtained leave to file a third amended complaint. Because the parties, below and on appeal, have assumed that the original jury demand was timely as to the third amended complaint, we do not address whether the demand actually was timely.
[8] We recite the facts explicitly found by the magistrate judge and adopted by the district court. We also recite facts that we consider to have been implicitly found, because they were not in dispute. Since we must vacate and remand the money judgments for the plaintiffs, the district court's findings of fact will not be binding in the subsequent proceedings in this case.
[9] GCI also had an "honor" dorm not relevant in this case.
[10] The acceptance of this condition might be best illustrated by LaMarca's story (taken as credible by the district court) that when he asked a guard for protection, the guard gave him a knife.
[11] In a survey, when GCI's staff were asked, "`Did you receive instructions or guidelines on the responsibilities and supervisory functions of your job when you became supervisor?,' they answered with a `resounding no.'" Id.

at 674. The Department of Corrections, Office of Inspector General observed that "we fail to understand and appreciate laxity, in some instances, the disregard for established procedures." Id. The court found that when staff engaged in egregious conduct, "so gross that immediate action should have been taken," Turner did not act. Id. at 675. This "underscore[d] the day-to-day operation of GCI with its staff not controlled by Superintendent Turner." Id. at 677.
[12] The court concluded, however, that two plaintiffs, Epprecht and Gordon, had not proven that Turner's deliberate indifference to their need for safety caused their injuries. LaMarca, 662 F.Supp. at 665. Epprecht and Gordon have not appealed.
[13] The court granted monetary awards to Anthony LaMarca, $9,000, Edwin Johnson, $13,000, Eddie Cobb, $6,500, and Martin Saunders, David Aldred, Steve H. Bronson, Ron Durrance, and Billy Joe Harper, each $30,000. LaMarca, 662 F.Supp. at 667, 715.
[14] Lipman was still concerned about the adequacy of the security GCI's staff was providing the inmates, the conditions surrounding the protective confinement cells, the ready availability of counseling for inmates who had been raped, and the presence of contraband, in particular weapons and drugs.
[15] The court cited as evidence of GCI's indifference to this medical need the testimony of GCI's staff psychiatrist, who stated that in his 15 years on the staff he had never been consulted regarding an inmate who had been sexually assaulted.
[16] Section 1983, upon which this action is based, also requires that the defendant act "under color of state law." 42 U.S.C. § 1983. This element is not at issue in this case.
[17] The Supreme Court recently confirmed that the first two elements of an Eighth Amendment claim, the "objective" and "subjective" elements, must both be satisfied. See Hudson v. McMillian, ___ U.S. ___, ___, 112 S.Ct. 995, 999-1000, 117 L.Ed.2d 156 (1992).
[18] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[19] The Seventh Circuit in McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1265, 117 L.Ed.2d 493 (1992), noted a difference between "when [a state] acts because of [an] effect," in which case the state intends a consequence, and "when it acts in spite of an effect," in which case the state lacks the requisite intent. Id. at 344 (citing Personnel Adm'r v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)). If such a standard were applicable to Eighth Amendment claims, the burden upon plaintiffs would become even more formidable. Yet, the requisite intent for deliberate indifference is unlike that for demonstrating a legislature's discriminatory intent under equal protection jurisprudence, as in Feeney. The McGill court's approach apparently provides officials a safe refuge from liability, much like a bystander is provided at common law. By doing so, the McGill court overlooks the significance of an official's duty not to impose cruel and unusual punishment upon prisoners 0907 a duty firmly established in the Supreme Court's Eighth Amendment jurisprudence. A state 0907 and similarly its officials 0907 can be deliberately indifferent if it acts in spite of a condition violating the objective prong described above unless such actions are justified by countervailing penological objectives.
[20] Turner testified as to additional sources through which he gained knowledge of the conditions at GCI. These included monthly meetings with key staff members, attendance at monthly meetings of each department, regular meetings with prisoner organizations, and his general practice of wandering through the prison compound.
Turner argues that the district court relied on notice created through telephone conversations between Turner and Saunders' mother. See LaMarca, 662 F.Supp. at 696. These conversations arguably showed general indifference on Turners' part toward inmates. Yet, because the conversations occurred after the alleged incidents, they were not relevant to Turner's pre-assault knowledge of unsafe conditions at the prison and were only marginally relevant to his alleged indifference to prisoner safety at the time of the alleged incidents.

[21] In Rizzo v. Goode, 423 U.S. 362, 375-76, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976), the Supreme Court rejected a plaintiff's § 1983 claim based on pervasive unconstitutional police practices. "[T]he Court disapproved the imposition of liability for the officials' failure to act in the face of a statistical pattern of police misconduct absent proof that the supervisory defendants had `direct [] responsibility for the actions' of those police officers who had engaged in this misconduct." Williams, 689 F.2d at 1381 (quoting Rizzo, 423 U.S. at 375-76, 96 S.Ct. at 606). In this case, the trial court did not rely solely on statistical patterns. Moreover, Turner's supervisory role and the insular character of prison communities provided strong support for the court's conclusion that Turner must have known of these conditions.
[22] Turner generally improved GCI's physical plant, modernized the prison's infirmary, decreased staff overtime, increased the number of confinement cells, and made a significant effort to document incidents at GCI (an effort necessary to proper management and safety). He also appeared before state legislative committees, wrote letters to Secretary Wainwright of the Department of Corrections, and identified the problems at GCI in his monthly reports.
Turner also appears to have made substantial efforts to improve recruiting of staff, a critical problem for GCI during Turner's tenure as superintendent. He testified that he sought to increase salaries (and was minimally successful), acquired a van for staff car-pooling from more distant locations (reducing the staff's transportation expenses), appeared at high school career days, and set up a program with the Florida State Employment Service. To control contraband, he attempted to utilize marijuana-sniffing dogs, but this proved ineffective in light of the confusing effluvium at GCI. The evidence does not indicate whether Turner intended that these actions resolve GCI's problem with prisoner safety.
[23] In Wilson, the Court declined to address the applicability of an insufficient funds defense. ___ U.S. at ___, 111 S.Ct. at 2327.
[24] The district court did not address this point, and, therefore, did not determine whether Turner knew of, or recklessly disregarded, the solutions suggested by the plaintiffs. On remand, the district court must reconsider whether Turner was deliberately indifferent to prisoner safety at the time of each incident for which an award of money damages is sought.
[25] For example, Turner's July 16, 1981 letter suggests a deep concern for, and helplessness regarding, the state of affairs at GCI.
[26] Turner has not challenged the district court's finding that GCI failed to provide inmates with reasonable protection from violence. We therefore assume that the plaintiffs satisfied the Eighth Amendment's objective component as to each incident for which money damages was sought.
[27] On appeal, Turner draws our attention to nine factors identified by the district court as contributing to the unconstitutional conditions at GCI: (1) a lack of weapons training, marginally indicating a more general failure by Turner to train his staff, (2) the staff's failure to report rapes, (3) the staff's failure to report other illegal activity, (4) the staff's failure regularly to patrol dorms, (5) the staff's failure to ensure maximum visibility in the dormitories, (6) the lack of standard procedures for investigating rapes, (7) Turner's failure to avail himself of outside agencies for investigating rapes and assaults, (8) Turner's failure to establish inmate movement controls, and (9) Turner's failure to transfer problem inmates.
[28] This argument conflicts with Turner's earlier contention that he was not deliberately indifferent because he took affirmative steps to improve prisoner safety. Yet, Turner could not actively seek to remedy a situation of which he was unaware. Turner's earlier arguments thus indicate an awareness of the infirm conditions.
[29] On remand, Turner may challenge the district court's findings as to the objective unreasonableness of conditions at GCI at the time of the incidents underlying the original plaintiffs' damages claims. We recognize that this does create a potential for inconsistent findings in the damages and injunctive phases of the case.
[30] The Supreme Court has rejected Eighth Amendment challenges to double-bunking. See Bell, 441 U.S. at 542, 99 S.Ct. at 1875 (rejecting any "sort of `one man, one cell' principle"). Similarly, the district court's order

precluding long-duration stays in protective confinement, and requiring timely transfers of inmates who cannot return to protective confinement, does not address a constitutional violation. See Meriwether v. Faulkner, 821 F.2d 408, 415-16 (7th Cir.), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987).
[31] The Seventh Amendment preserves, "[i]n Suits at common law, ... the right of trial by jury...." U.S. Const. amend. VII.
[32] The original plaintiffs' motion for leave to file a second amended complaint states that the addition of the new plaintiffs was consistent with Fed.R.Civ.P. 15(a). Since the new plaintiffs' claims raise independent causes of action, however, Fed.R.Civ.P. 20(a) controlled the insertion of these parties into the suit.
[33] The plaintiffs point to, but do not discuss, three cases in which new plaintiffs were added after waiver, but, nevertheless, the right to a jury was not revived. See Commonwealth of Penn. v. Sincavage, 439 F.2d 1133 (3rd Cir.1971); Barr v. Arco Chem. Corp., 529 F.Supp. 1275 (S.D.Tex. 1982); Ed Brawley, Inc. v. Gaffney, 399 F.Supp. 115 (N.D.Cal.1975). These cases did not involve a jury demand by a defendant after the joinder of plaintiffs with distinct claims. Rather, each case involved a jury demand by an intervening plaintiff. Sincavage, 439 F.2d at 1134 (requiring plaintiff-intervenor to take case "in the status in which she found it"); Barr, 529 F.Supp. at 1276 ("new plaintiff merely reasserted rights alleged in the original complaint," and was joined to correct prior pleadings); Ed Brawley, 399 F.Supp. at 118 (same rights asserted by original and new plaintiffs). These cases suggest no justification for precluding Turner's jury demand.
[34] The new issues included, at least, (1) whether each assault actually occurred, (2) the damages stemming from such assault, (3) the protection afforded to inmates at the time of each assault, (4) Turner's deliberate indifference to the unconstitutional condition at the time of each assault, and (5) the causal nexus between his indifference and the condition.
[35] Richland v. Crandall, 259 F.Supp. 274 (S.D.N.Y.1966), illustrates another procedural rule, consolidation, which, if improperly applied in the Rule 38 context, can be used to bypass a party's Seventh Amendment right. In Richland, shareholders brought four suits derivatively, individually, and as class actions, against 20 defendants (officers, directors, and corporations) for violations of the Securities Exchange Act. Before consolidation, at least one of the 20 defendants had answered three of the four complaints. Id. at 281 & n. 9. The plaintiffs filed a demand for a jury trial within 10 days of service of the answers to the consolidated complaint by some of the defendants. The defendants in Richland argued that by not making a timely demand for a jury trial after the early answers to the original complaints, the plaintiffs waived their right to a jury as to the issues presented in each of the four original complaints. The court, however, observed that the "[d]efendants ignore[d] the fact that the defendants who answered some of the [original] complaints ... constitute[d] only 3 out of the 20 parties named as defendants in one or more of the underlying complaints and in the consolidated complaint, and that the issue was not joined as to the other 17 defendants until [the answers to the consolidated complaint had been filed]." Id. at 281.
The distinction noted by the Richland court is critical. Even though all claims involved the same transaction and there was substantial similarity of issues, the plaintiffs' Rule 38 jury demand was timely as to the claims by the 17 defendants who had not answered the original complaints.
We find the Richland court's analysis persuasive. The only relevant distinction between Richland and this case is the procedural mechanism through which the independent claims were joined; in Richland separate suits were filed and then consolidated; in the instant case, plaintiffs sought and obtained leave to join new parties with independent claims.
[36] The plaintiffs' assertion that the original class action suit for injunctive relief incorporated the potential claims of the new plaintiffs is patently meritless.
[37] Consistent with his other arguments, Turner maintains that the original and new plaintiffs' claims have few, and perhaps only one, common issue: "whether the prison conditions during the time frame relevant to their claims were in violation of the 8th and 14th Amendments."

[38] We reach this result even though the record indicates that the plaintiffs erroneously represented to the court that they were "ready for trial." In fact, their own expert witnesses were unprepared at the time of the December 2, 1985 trial. Dr. Swanson, for instance, admitted on cross-examination that he bypassed potentially relevant sources of information because of severe time pressures. The district court postponed consideration of the injunction claim because Dr. Swanson was not fully prepared.
The plaintiffs' counsel further skewed the court's perception of the defendants' discovery problems by representing to the court that certain witnesses identified by the new plaintiffs in their depositions were not "actual" witnesses whom Turner might require time to contact. Plaintiffs' counsel stated that "I [have] never seen a deposition taken, particularly prisoners, [in an] inmate setting, where a deponent does not offer under skilled examination, such as defendants' counsel, a name of somebody that was a potential witness to an incident, a name of an alleged perpetrator, a name of somebody in the next cell who may have heard or seen [something]." (It seems apparent that Turner's counsel placed more stock in the credibility of the prisoners' stories than plaintiffs' counsel did.)
[39] The court's extensive reliance on Dr. Swanson's testimony demonstrates the importance of this witness. Yet, Dr. Swanson did not begin his investigation until after October 4, 1985, and did not complete his interviews with the plaintiffs until December 1, 1985, the day before the damages trial began.
[40] Turner described this evidence, in part, as
more than 100 investigations were undertaken from 1980-84 ... in respect to sexual assaults, non-sexual assaults and batteries, possession of weapons, possession of drugs or alcohol and introduction of contraband; they reflect that, in virtually all instances, the Palm Beach County Sheriff's office was involved in the investigations; that prosecutions were undertaken; that, in respect to alleged sexual assault, rape kit tests were administered when appropriate; that there was an established procedure for investigation and handling of such claims.
[41] The court stated that
[i]f this Court's order was incorrect earlier in that respect in that we denied motions for continuance, and I think there was perhaps more than one of these, why, it seems to me ... that I may not have jurisdiction at this time since an appeal has been taken. [Counsel for Turner] asserts that we still do, and perhaps he is right, but it seems to me it is better to go ahead and stick with that earlier ruling, and let the appellate court review that point as well as this order which I am now making denying the motion....
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 861 F.2d 724 (Table) 861 F.2d 724 (Table) (Cite as: 861 F.2d 724 (Table))
(The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Eleventh Circuit provides by rule that unpublished opinions are not considered binding precedent. They may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached to or incorporated within the brief, petition or motion. Eleventh Circuit Rules, Rule 36-2, 28 U.S.C.A.)
United States Court of Appeals,Eleventh Circuit. LaMarca v. Turner
NO. 87-5878
OCT 18, 1988
Appeal From: S.D.Fla., 662 F.Supp. 647
DISMISSED.
C.A.11 1988. LaMarca v. Turner 861 F.2d 724 (Table)
END OF DOCUMENT

Page 1

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

 
 Turner v. LaMarca, 510 U.S. 1164 (1994)

Case below, 995 F.2d 1526.

114 S.Ct. 1189 Supreme Court of the United States
R.V. TURNER, etc., et al., petitioners, v.
Anthony LaMARCA, et al.
No. 93-1085. | Feb. 28, 1994.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.

Parallel Citations 114 S.Ct. 1189 (Mem), 127 L.Ed.2d 539, 62 USLW 3572, 62 USLW 3573

1

 
 LaMarca v. Turner, 113 F.3d 1250 (Table) (1997)

113 F.3d 1250 (Table) (The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Eleventh Circuit provides by rule that unpublished opinions are not considered binding precedent. They may be cited as persuasive authority, provided that a copy of the unpublished opinion is attached
to or incorporated within the brief, petition or motion. Eleventh Circuit Rules, Rule 36-2, 28 U.S.C.A.)
LaMarca v.
Turner**
Appeal From: S.D.Fla.,No.8208196CVJCP

Opinion Affirmed.

United States Court of Appeals, Eleventh Circuit.

NO. 95-5451 | Apr 14, 1997

Footnotes

**

Local Rule 36 case.

1