IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

INMATES OF WESTVILLE CORRECTIONAL CENTER, ROGER W. ANDERSON, et. al-/
Plaintiffs, vs.
EVAN BAYH, et. al., Defendants.

) ) ) )
) CAUSE NO. S 83-481 ) ) )

STIPULATION AND REQUEST FOR CONTINUANCE OF COURT SUPERVISION FOR AN ADDITIONAL
SIX MONTHS

The parties, by their respective counsel, agree and stipulate to the

following:

1. A Consent Decree was entered in this case on April 4, 1989, as the

final judgment of the Court.

2. The Consent Decree provided, in part, that this Court would retain

active jurisdiction and supervision for a period of at least two years

unless continued active jurisdiction and supervision were requested by the

plaintiffs.

.

3. The Consent Decree also provided that the defendants would submit

compliance status reports every three months with the court and plaintiffs'

counsel until the Court's jurisdiction over this case ends.

4. The parties, with court approval, have previously stipulated to

extend the court's supervision; the same is scheduled to terminate on

December 3, 1993.

• • H U H Anderson v. Bayh

II H II

pc- N-002-007

tfl

5. During the last six month extension, the parties have been diligently attempting to resolve disputes involving medical staffing,
psychiatric unit staffing, and the level of violence at Westville.
6. Counsel for the parties met in December of 1992, March 17, 1993 and on April 19, 1993 and November 15, 1993 to discuss these problems in detail and engage in further negotiations in an attempt to bring this case to a final conclusion. The Indiana Department of Correction (I.D.O.C.) and counsel for the defendant have advised the plaintiffs of plans to restructure and reorganize the Department of Correction's institutional facilities in regard to their respective security classification levels. Both parties believe that the I.D.O.C.'s restructuring of its institutional facilities will reduce the current level of violence at Westville Correctional Center.
7. Counsel for the parties have scheduled another meeting during the week of December 20, 1993, to continue these negotiations and to develop new time tables for the implementation of the defendant's proposals regarding medical staffing, psychiatric unit staffing and the overall restructuring of the security classification level of Westville Correctional Center.
8. In order for the parties to engage in further negotiations and to develop specific time tables for the implementations of the defendant's proposals, the parties agree and stipulate that the court should retain active jurisdiction and supervision for an additional one year to and including June 3, 1994.
9. All other terms of the Consent Decree shall remain in full force.

10. Consistent with the above stipulations, the first sentence of Part V, Numeral l, of the Consent Decree is hereby amended to provide the following:
The court shall retain active jurisdiction and supervision of this case until June 3, 1994.
All other provisions of Part V, Numeral 1, of the Consent Decree remain in full force and apply to future proceedings as if the original Consent Decree and Final Judgment so read.

Attorney for Plaintiffs

Attorney for Defendants

DAVID E. VANDERCOY ' Valparaiso University Law
Clinic Heritage Hall Valparaiso, IN 46383
APPROVED AND ORDERED this

SETH LAHN Deputy Attorney General 219 State House Indianapolis, IN 46204

day of

1993

ALLEN SHARP", Chief Judge U.S. District'Court Northern District of Indiana
cc: David E. Vandercoy VALPARAISO UNIVERSITY LAW CLINIC Heritage Hall Valparaiso, IN 46383
Mark Lopez American Civil Liberties Union 1875 Connecticut Ave., N.W., Suite 410 Washington, D.C. 20009
Seth Lahn, Deputy Attorney General 219 State House Indianapolis, IN 46204

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

ROGER W. ANDERSON, et al., Plaintiffs, v.
EVANBAYH, etal., Defendants.

No. 3:83cvO481AS Class Action

PLAINTIFFS' MEMORANDUM IN SUPPORT OF CLASS ACTION AND CONTEMPT MOTION SETTLEMENT

June 8, 1996
Anderson v. Bayh
™ m • « • • •• mm m
PC-IN-002-009

Hamid R. Kashani 445 N. Pennsylvania, Suite 600 Indianapolis, Indiana 46204 317/ 632-1000
Mohamedu F. Jones National Prison Project of American Civil Liberties Union Suite 410 1875 Connecticut Ave., N. W., Washington, D.C. 20009 202/ 234-4830
Attorneys for Plaintiffs

ilities independently. Finally, by the time final accord was reached on settlement, class counsel had literally hundreds of correspondence and face-to-face visits with class members. Defendants, of course, were intimately familiar with the facts in the case. Thus, to borrow a phrase from Chief Judge Sharp's opinion in Parents for Equal Edu., "[c]ertainly, the discovery gave the lawyers for all the parties a clear insight into the factual presentations that were to be made for all the parties." 728 F. Supp. 1373, 1375 (N.D. Ind. 1990).
D. THE PRISON LITIGATION REFORM ACT OF 1995, DOES NOT AFFECT THE CURRENT PROCEEDING IN THIS CASE.
The Prison Litigation Reform Act of 1995 (PLRA), was enacted on April 26, 1996. The relevant part of the Act which in any way may apply to this particular proceeding is its section 802. It provides:
Prospective relief, in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
42

§ 802(a)(l)(A) (emphasis added).7 Section 802(c)(l), provides that in approving
settlements and entering a consent decree, the court must comply with the requirements of
subsection (a), quoted above.
In this case, the only possible implication of section 802(a) is that it may be
construed to require an actual finding by the Court that Defendants have actually violated prisoners' federal rights.8 Defendants, obviously, would not consent to such a finding.9
Construing § 802(a) to require such a finding, would require a full-blown trial to be held
in every case to determine whether the defendants have actually violated prisoners' federal
rights. That defeats settlement which is contemplated by the PLRA.
7Subparagraphs 802(a)(l)(B) and (C), provide additional restrictions. While Plaintiffs believe those restrictions are outright unconstitutional, they are not implicated in this proceeding:
Subparagraphi (B) provides that a federal court may not require any remedy for constitutional violations if the remedy violates the state law. That subsection is unconstitutional because it imposes state law restrictions as a limit on constitutional rights. Nevertheless, there is no allegation in this case that the Entry imposes duties on Defendants which exceed their state law authorities.
Subparagraph (C), deals with court orders directing construction of prisons or raising taxes to do so. Those issues are not presented in this case.
8In other respects, section 802(a) does not change the existing legal requirements. Federal courts have always limited the relief granted against state officials to the remedies available for violation of federal law. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89 (1984). Further, federal courts have always limited the relief to the least intrusive means necessary to correct the violation of the federal rights, especially in prison cases.
9It is the undersigned counsel's understanding that Defendants would not object to a finding that this settlement is narrowly drawn, extends no further than necessary to correct the constitutional problems alleged by Plaintiffs, and is the least intrusive means necessary to correct the constitutional problems alleged by Plaintiffs. Defendants, however, would not consent, and in fact vigorously contest, that they have violated prisoners' federal rights.
43

.in the context of a proceeding for approval of a settlement decree the court need not a full-blown trial to determine whether the defendants have actually violated federal law. Instead, the Court should apply the same test applied to determine whether the case present legitimate questions of federal law. For example, such tests are applied to determine whether a case presents a substantial federal claim warranting federal jurisdiction. See The Fair v. KohlerDie & Specialty Co., 228 U.S. 22, 25 (1951) ("if the plaintiff really makes a substantial claim under an act of Congress there is jurisdiction whether the claim ultimately be held good or bad"). Obviously, if a court has the power to approve a settlement, it cannot logically be required to conduct a full-blown trial before such an approval. (That defeats the purpose of settlement). After all, in approving a settlement agreement, "'the court must not decide unsettled legal questions; any illegality or unconstitutionality must appear as a legal certainty on the face of the agreement before a settlement can be rejected on this basis.'" Isby, 75 F.3d at 1197 (quoting Armstrong, 616 F.2d at 320). Therefore, Plaintiffs respectfully request that, in approving the Agreed Entry, the Court find:
The relief granted by this settlement is narrowly drawn, extends no further than necessary to remedy Plaintiffs' substantial federal claims regarding violations of their federal rights, and is the least intrusive means necessary to correct Plaintiffs' substantial federal claims regarding violations of their federal rights.
44

jintiffs expect that this proposed finding, as supported by the record, would be acceptable to Defendants.10
Because the proposed language disposes of any concerns regarding the application of the PLRA in the context of the pending proceeding, Plaintiffs have not fully presented their argument that the PLRA is unconstitutional and that it cannot be retroactively applied to a pending case such as this one. In the event this Court wishes to reach those issue, Plaintiffs request a further opportunity to brief the issues and a trial to prove violations of federal law.
Alternatively, the Court should find that the PLRA is not applicable to the instant proceeding, because this proceeding involves a resolution of Plaintiffs' contempt motion as opposed to a settlement on the merits. The same rules which apply to a determination of a case-in-chief, in an original proceeding, do not apply to a determination of a contempt motion. Compare McChristion v. Duckworth, 610 F. Supp. 791 (N.D. Ind. 1985), aff'd in part and rev'd in part on other grounds, 978 F.2d 1261 (7th Cir. 1992) (table) (applying constitutional standards to decide a claim presented in an original case); with Kindred v. Duckworth, 9 F.3d 638 (7th Cir. 1993) (deciding the same claim brought in a contempt proceeding based on contract standards as opposed to constitutional standards applicable in an original case).
10We do not mean to preempt Defendants on this issue. The Court has given Defendants an opportunity to respond to this paper if they so wish.
45

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

CAUSE NO. 3:83-cv-481AS

ROGER W. ANDERSON, EVAN BAYH, et al.,

Plaintiff, v.
Defendants.

ENTRY FOR March 28, 1997
REPORT AND RECOMMENDATION This class action, originally brought in 1983, challenges the conditions of confinement at the Westville Correctional Center ("WCC"), a penal facility operated by the Indiana Department of Correction ("DOC") in Westville, Indiana. The parties initially reached a settlement, and their agreement, in the form of an Agreed Entry, was approved by the court in 1989. Through their subsequent monitoring efforts, class counsel conchided mat defendants were not complying with the Agreed Entry in a number of areas. On May 27, 1994, plaintiffs filed a motion to hold defendants in contempt. Renewed negotiations eventually led to another settlement but, before the second Agreed Entry became eligible for court approval, Congress passed the Prison litigation Reform Act, Pub. L. 104-134, §§ 801, 802 (1996) (amending 18 U.S.C. § 3626) ("PLRA"), which became effective on April 26, 1996. The undersigned

conducted a fairness hearing on May 21, 1996, and the parties have since completed briefing. Arguing that compliance with the requirements of the PLRA has not been demonstrated, defendants now oppose approval of the Agreed Entry. For their part, plaintiffs maintain that approval of the Agreed Entry is appropriate and that defendants' construction of the PLRA would render it unconstitutional. For the reasons which follow, it is recommended that the proposed Agreed Entry not be approved.
Procedural History
This case was commenced on October 19, 1983, with the filing of a pro se complaint by Roger W. Anderson, Jr., an inmate at the WCC. On March 14, 1986, Judge Sharp certified a plaintiff class under Rule 23(bX2) of the Federal Rules of Civil Procedure, with the class consisting of u[t)hosc prisoners who are, or may be in the future, confined at the Wesrvillc Correctional Center. . . . " After the parties had conducted a substantial amount of discovery, settlement negotiations began in July 1988. The negotiations culminated in a settlement which was approved by the court on April 4, 1989.
In accordance with the original agreed entry, class counsel engaged in monitoring its implementation at the WCC. Based upon their belief that conditions at the WCC had deteriorated, plaintiffs filed a motion to hold defendants in contempt on May 27, 1994. The motion asserted that the WCC's Psychiatric Unit was understaffed in several critical positions and that restraints and seclusion were used excessively on the unit. According to plaintiffs, additional areas of non-compliance on the Psychiatric Unit included failure to provide privacy

in the toilet area, inadequate therapy space and inadequate ventilation, and a lack of timely due process hearings for prisoners transferred to the Unit. Plaintiffs also claim, with the exception of services provided by the behavioral clinicians, less than one half the agreed psychiatric and psychological coverage was being provided to general population prisoners. With respect to medical care, plaintiffs claimed that defendants bad failed to live up to the agreement by not providing four full-time physicians and an adequate number of nurses, and by taking other measures which obstructed plaintiffs' access to health care. Plaintiffs also complained that prisoners housed in 8 Dorm, a dormitory located in the WCC's General Services Complex, were not provided with recreation, and that defendants had yet to complete agreed asbestos clean-up in the WCC's power plant and in one of the housing complexes. At the time plaintiffs filed their contempt motion, they informed defendants of several additional areas of concern which they had identified as constitutional violations at the WCC. The parties agreed to participate in a court-sponsored settlement effort to resolve those issues, and the new Agreed Entry (the "Agreed Entry" or the "Entry") was die result. The court subsequently approved the parties' proposed notice of the settlement on March 29, 1996, and conducted a final hearing for the purpose of receiving testimony from selected class members on May 21, 1996.
Summary of Proposed Agreed Entry
Medical Care. The Agreed Entry requires defendants to provide adequate medical care services to the WCC prisoner population, (Agreed Entry 11(AX1) at 1), and provides mat the medical care policies and procedures adopted at the WCC shall be "generally

in confbrmancc with the National Commission on Correctional Health Care . . . guidelines as they currently exist except as otherwise provided in [the] Entry." (Id. 1 I(C),at 2-3.) In addition, it obligates defendants to "employ sufficient staff members to fulfill the obligations set forth" in the Entry, (id. t I(AXD at 1), and it describes the duties and responsibilities of various medical staff members, including a health services administrator, medical director, physicians and other primary care providers, and nurses. (Id. 11(AHE) at 1-6.)
The Agreed Entry further requires defendants to conduct a daily sick call, except on weekends and holidays. Sick call clinics must be conducted in satellite infirmaries by an onsite nurse or physician's arefctant, According to the Entry, all requests for health care services must be reviewed within one working day of the submission of the request, and "all prisoners who describe a medical complaint or symptoms (as contrasted to a request for medical information, tests or results) shall be seen at sick call by a nurse within two (2) working days of me review of their request for health care services." (Id. 11(F) at 6-7.) "Patients needing to see a physician shall be seen within a medically acceptable time frame, not to exceed five (S) working days." (Id. % I(G)(1) at 7-8.) The Entry requires that medical decisions of staff physicians and outside specialists not be revised or overturned except by a licensed medical doctor. In all instances where a medical decision has been revised or overruled, defendants are required to create a record of the decision. (Id. 11(HX2)-(3) at 8.)
In addition, the Agreed Entry mandates that defendants "develop and implement a program for the care of chronic care prisoner patients including, but not limited to, those prisoners who are diabetic, asthmatic, HIV+, TB+, hypertensive, and epileptics." (Id. 1

I(L)(1) at 9-10.) Defendants are also required to develop individualized treatment plans for patients and evaluate the plans on a periodic basis. {Id. 111(L)(2)-(4) & (M) at 10-11.)
Under the Agreed Entry, defendants are required to implement a tuberculosis prevention and control program, which would include "surveillance for infectious and active diseases, provisions for chemoprophylaxis against tuberculosis and provisions for management of active illness." (Id. 11(RXD at 14.) This program, which has been approved by the Indiana State Department of Health, is "generally consistent with the recommendations of the Centers for Disease Control and Prevention (CDC)." Any changes in the program must "be consistent with the CDC's recommendations as they evolve." (Id. 11(R)(2) at 14.) WCC staff will be required to "maintain statistical records describing the numbers of prisoners and staff members tested, the prevalence of infection in the population, and the incidents of both conversion and active illness." (Id. 11(R)(3) at 15.)
The Agreed Entry further requires defendants to provide "[pjrisoners at WCC [with] immediate access to urgent and emergent care 24 hours a day." (Id. 11(S)(1) at 15.) The Entry also includes provisions concerning medical emergencies and mandates that defendants develop a Medical Emergency Protocol for handling urgent and medical situations. (Id. 11(S)(3) at 15.) All licensed health care staff must maintain current certification in cardiopulmonary resuscitation, and "[a) reasonable number of custody staff in each housing complex on each work shift shall also be certified in CPR." (Id. 11(S)(1) at 15.) Defendants must also maintain a "crash cart" for use in medical emergencies and "an ongoing arrangement with a local ambulance service and a local hospital." (Id. 11(S)(5) at 16.) Further, defendants must "make provisions for facilitating the transfer of prisoners suffering from a medical urgency or

emergency to a hospital," {id. f I(S)(4) at 16), and periodically educate medical personnel, as well as custody and supervisory staff, concerning the Medical Emergency Protocol. (Id. 1 I(SX3) at 15-16.) Lastly, the Entry mandates services and procedures in several miscellaneous areas, including age-appropriate medical intervention, medication distribution, maintenance of adequate medical records, and the operation and administration of an infirmary and self-care unit. (Id. 111(J)-(K) and (O)-(P) at 9 and 12-13.)
Mental Health Care for General Population. The Agreed Entry requires defendants to "maintain a mental health program for general population prisoners," and retain a mental health services supervisor having administrative responsibility for the program. (Id. 1 H(A) at 16.) Under the Entry, defendants must develop and implement a comprehensive set of written policies and procedures for the delivery of mental health care services, including "a systematic program for screening and evaluating prisoners in order to identify those who require mental health treatment," access to treatment, tbe participation of adequate numbers of trained mental health professionals, maintenance of accurate, complete and confidential mental health treatment records, "appropriate prescription and administration of psychotropic medication," and "a basic program for the identification, treatment, and supervision of prisoners with suicidal tendencies." (Id. 1 H(AXlXaHf) at 16-17.) The Entry further requires defendants to "employ sufficient mental health care staff members to fulfill [their] obligations," (id. 11I (B)(l) at 17), and it prohibits defendants from using staff personnel from the psychiatric unit to meet mental health care staffing needs for the rest of the institution. (Id. 11I(BX2) at 18.)
Psychiatric Unit. Tbe Agreed Entry requires defendants to "provide adequate mental health care services to prisoners assigned to the Psychiatric Unit at WGC," (id. 1

HI(AXl) at 18), and it sets forth a comprehensive list of duties and responsibilities for various staff members. (Jtd.11II(A)-(E) at 18-22.) The Entry also prescribes detailed procedures for transferring prisoners to the Psychiatric Unit, and requires prompt and orderly transfer of prisoners who are discharged from the Unit. (Id. 15 UI(L)(2)-(3) at 28.) The Entry further requires that individualized treatment plans be developed and implemented and provides that a psychiatrist must evaluate each patient and review his medication at least once each month. (Id. 1 III(G) at 23.) The Entry also provides for access to medical care by prisoners at the Psychiatric Unit, and requires that they be provided with over-the-counter medications at the
/ DOC's expense. (Id. 111(Q) at 13-14 & m(HXl)-(2) at 23.)
The Entry also sees forth comprehensive procedures for forced administration of antipsychotic medication, and requires that forced medications exceeding a period of five consecutive days be approved by an outside psychiatrist. (Id. 1 IH(J)(2) at 25-26.) Outside psychiatrists must be selected from a list prepared by the District Branch of the American Psychiatric Association and generally "may not have been employed by the [WCC] within the two years immediately preceding the selection." (Id. 11II(JX3) at 26-27.) The Entry further requires defendants to nwintaip "[a] separate written log or other central record of all instances of forced medication,'' (id. 1 10(0(4) at 27), and it requires defendants to maintain "[a] separate written log or other central record of all instances of the use of mechanical restraints." (Id. 1 HICKX3) at 27.) Segregation of mentally ill prisoners, except for legitimate clinical purposes, is prohibited. (Id. 1 IH(M) at 28-29.)
Under the Agreed Entry, defendants must provide each prisoner housed in the Psychiatric Unit with a TmrmTpmi of 50 sq. feet of dormitory space and 32 sq. feet of day room

space. Prisoners in the Unit must have access to a multi-purpose recreation room a minimum of five days per week, and must be allowed outdoor recreation at least five days per week, weather permitting. (Id. 1 10(1)0) at 23.) The Entry further incorporates detailed provisions concerning recreation requirements for prisoners in restraints or seclusion. (Id. H m(I)(l)-(2) at 23-24.)
Staffing Issues. The Entry does not include specific staffing requirements, but does require defendants to employ sufficient staff members to fulfill their obligations under the Entry. (Id. 11(A)(1) at 1 (Medical Care): 11I(B)(1) at 17 (Mental Health Care for General Population): 1 in(A)(l) at 18 (Psychiatric Unit)).
Recreation. The Entry nymta^g essentially the same rights to recreation which were included in the original Agreed Entry. More particularly, it provides that u(a]ll general population prisoners shall have access to the gymnasium and/or outdoor recreation area (weather permitting) at least six (6) days per week." (I<L\ IV(A) at 29.)
Facilities. The Agreed Entry sets forth various new requirements in the areas of security, fire safety, sanitation, insect and rodent extermination, plumbing, building maintenance, asbestos, and access for disabled prisoners. (Id. 1 IV(B)-(D) at 29-34.)
Violence. Under the Agreed Entry, defendants are required to undertake reasonable and appropriate measures to assure that prisoners are adequately protected from physical assault by other prisoners when traveling in the prison's underground tunnels, assure that adequate correctional and supervisory staff are assigned to prisoner housing units, identify and manage gang-related activities, and maintain fixtures affecting prisoner security in proper operating conditions. (Id. 1 V(A)-(P) at 34.)

"N
Disciplinary Segregation Unit. Prisoners in the Disciplinary Segregation Unit shall be housed one prisoner per cell. (Id. 1 VTI(A) at 40.) Disciplinary segregation prisoners must be allowed six days of recreation per week, and the recreation must occur during reasonable hours. If die weather is cold, defendants shall provide prisoners with warm clothing for their recreation period. (Id. 1 VII(B) at 40-41.) Under the Agreed Entry, access to medical and psychiatric care by disciplinary segregation prisoners shall be substantially similar to that provided to other prisoners. In addition, defendants are required to "conduct daily sick call, except on weekends and holidays, in the Segregation Unit, with assessments to be done by the nursing staff and appropriate follow-up care to be provided on a case-by-case basis." (Id. % I(G) at 7.)
Legal Access. Under the Agreed Entry, prisoners must be "provided legal access which is adequate and sufficient as defined by statute and applicable case law." (Id. 1 VIII at 41.) All law libraries must be open a reasonable number of hours five days a week, be staffed by trained law clerks, and be kept updated with various listed legal resources. (Id. 11 VHI(A> (E) at 41-42.)
Meals. All prisoners shall receive daily nutritional requirements as determined by a dietitian and, in the event of lockdown, prisoners shall be provided at least two meals per day. (Id. 11 DC(A)-(B) at 42.)
Monitoring and Enforcement. The Agreed Entry embodies comprehensive monitoring and reporting requirements. "Beginning three (3) months after the [date of approval of the Agreed Entry] Defendants shall provide Plaintiffs' counsel with written progress reports detailing the steps taken to comply with the respective provisions of the [Entry]. Such reports

shall be submitted on a quarterly basis for the first year and on a semi-annual basis thereafter." Under the Agreed Entry, defendants may move to vacate the judgment and terminate jurisdiction upon a showing of substantial compliance not less than two years from the date judgment is entered. The parties are to agree upon a schedule to implement expeditiously the various provisions of the Entry. A party seeking to modify the Entry must notify opposing counsel in advance. The parties must then attempt to resolve all disputes prior to any report to the court. (Id. 11 XE(A)-(C) at 45.) Within six weeks of the date of court approval, defendants are required to make all WCC staff and other persons charged with the implementation of the Entry aware of its existence, its terms, and the necessity for strict compliance. Defendants must then periodically review the terms of the Entry with those persons charged with its implementation. During the monitoring phase, plaintiffs' counsel and their staff shall have reasonable access to documents, facilities, personnel, and WCC prisoners. (Id. 1 XI(D)-(F) at 46-47.)
Application of the PLRA
In general, a court may not approve of any class action settlement unless it determines that the settlement is lawful, fair, reasonable, and adequate. Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996); E.E.O.C. v. Hiram Walker <£ Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985); Gautreaux v. Pierce, 690 F.2d 616, 631 (7th Cir. 1982); Armstrong v. Board ofSch. Directors, 616 F.2d 305, 313 (7th Cir. 1980). However, when a proposed class action settlement provides for prospective or non-monetary relief with respect to prison conditions, the newly enacted PLRA imposes additional requirements. Under § 3626(c)O). a court may not
10

"enter or approve a consent decree unless it complies with the limitations on relief set forth in
subsection (a)." That subsection provides:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further man necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(lXA). Under this provision, a court may not approve a settlement
providing for prospective relief without expressly finding that the proposed relief (a) is
"narrowly drawn;" (b) "extends no further than necessary to correct (be violation of the Federal
right;* and (c) is the "least intrusive means necessary to correct the violation of the Federal
right"
Defendants initially contend mat a court must find, or the parties must agree, that
there has been a violation of a "Federal right" before the court can approve a consent decree.
Defendants point out that they have not admitted or acknowledged such a violation, and that the
"terms of the proposed Agreed Entry expressly negate the factual predicates now necessary as
findings under the PLRA."1 Thus, the defendants assert that M[t]he Court cannot make the
necessaairy findings and conclusions in this case." (Defts' Brief on Proposed Agreed Entry at 2.)
1The proposed Agreed Entry recites die following: The parties, hiving agreed dot settlement of tab class action is in the best interests of all concerned, but without admiaing or acknowledging that die defendants arc liable or chat any existing conditions at die Westville Correctional Center violate any Indiana Of United States ooaHiMiuiial or stawtory law, hereby submit m n e court the following terms which shall constitute the judgment of ihe Court in this action with respect to the plaintiffs' claims fee injunctive relief.
• ••
(Agreed Entry at 1.)
11

The plaintiffs argue that the PLRA does not mandate a specific finding that defendants have actually violated prisoners' federal rights and only requires that the relief be "aimed at addressing violations of federal rights." (Plfs' Reply to Defts' Brief on Proposed Agreed Entry at 3.) Plaintiffs point out that, in the absence of an unlikely stipulation, the construction advocated by defendants would necessitate a full-blown trial to determine liability. "Conducting an adversarial, evidentiary trial," according to plaintiffs, "would defeat the purpose of settlement which is plainly contemplated by the PLRA. . . . " Id.
While the PLRA does not expressly require a "finding" that a federal right has been violated, the need for such a determination is certainly implied. See Williams v. Edwards, 87 F.3d 126, 133 (5th Cir. 1996) (advising district court that "if it should find a violation of a 'Federal right,' then any remedy it might fashion must conform to the standards set forth in the [PLRAD; James v. Lash, 949 F.Supp. 691, 693 (N.D. Inrt. 1996) (observing that similar language in § 3626(bX3) "seems to clearly and unambiguously require a finding of a current or ongoing violation of a federal right"); Benjamin v. Jacobson, 935 F.Supp. 332, 351-352 (S.D.N.Y. 1996) (noting that H[w]hat Congress has done here that has changed the law significantly is to apply the standards for a litigated judgment to all judgments including those entered on consent"). As a practical matter, a court cannot find that the prospective relief "extends no further than necessary to correct the violation of the Federal right," and it cannot find mat the prospective relief is "the least intrusive means necessary to correct the violation of the Federal right," in the absence of a violation to correct. The determination that there has been a violation of a plaintiffs federal rights informs and gives meaning to the other required findings. A judicial pronouncement that the relief "extends no further man necessary'' and is
12

"the least intrusive means necessary" can only be made after a determination that there has been a violation and only after the violation is considered in relation to the proposed prospective relief.
Plaintiffs argue, nevertheless, that the original consent decree in this case, being a "federal court order," created a *'Federal right,'" the violation of which is addressed by the new Agreed Entry. This argument is unavailing. Such a construction, which would equate the term "Federal right" with the prospective relief granted by a federal court, would make no sense — as if to say, "The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correction the violation of the [prospective relief], and is the least intrusive means to correct the violation of the [prospective relief]." See Pfyler v. Moore, 100 F.3d 365, 370 (4th Cir. 1996) (rejecting a similar argument in the context of 18 U.S.C. § 3626(b)(2), the PLRA's decree termination provision). Moreover, even assuming that the original Agreed Entry in this case created a "Federal right," the prospective relief reflected in the second (proposed) Agreed Entry is not directed to the enforcement of any "Federal right" created by the original Agreed Entry. The second Agreed Entry, rather, embodies a separate settlement agreement. In addition, the second Agreed Entry includes prospective relief in many areas not addressed in plaintiffs' motion for contempt, and it cannot be said that it "extends no further than necessary" to correct the violation of any -Federal right" allegedly created by the original Agreed Entry. Accordingly,
13

the court concludes that the tenn "Federal right" as used in § 3626(a)(l)(A) does not include rights, if any, conferred by the original consent decree.2
Ultimately, it is clear that the proposed Agreed Entry cannot be approved under the requirements of the PLRA. There is no basis on the present record to find that the "Federal right" of a particular plaintiff or plaintiffs has been violated, regardless of whether the "Federal right" would be one arising out of the Constitution, a federal statute, or a consent decree. Nor can the court find that the proposed Agreed Entry, which plaintiffs have elsewhere described as having a "broad sweep" and encompassing "almost all facets of the conditions of confinement at the WCC," (Plaintiffs' Memorandum in Support of Class Action and Contempt Motion Settlement at 10), is "narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the. violation of the Federal right."
The Agreed Entry, for example, requires that the medical care policies and procedures adopted at the WCC be "generally in conformance with the National Commission on Correctional Health Care . . . guidelines," (Agreed Entry 11,(C) at 2-3), but there is nothing to suggest that medical care policies and procedures which do not conform to. those guidelines would amount to a violation of plaintiffs' rights. Similarly, nothing in the Constitution could conceivably require the appointment of a registered nurse as nursing supervisor, a chief
2It should be noted that the original Agreed Entry, along with any "Federal right" which may have beta created by k, would be subject to termination under 5 3626(bX2), in the absence of the same findings which are required for approval of a consent decree under 3626(aXl)- Section 3626(bX2) provides:
In any crvi action with respect to prison conditions, a defendant or iotervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further duo necessary K> correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right
14

psychiatrist or a director of the Psychiatric Unit. (Id. f III at 19.) There is, moreover, no constitutional requirement that the daily nutritional needs of prisoners be determined by a dietitian. (Id. % IX, at 42.) Nor does the Constitution demand that prisoners in disciplinary segregation have access to outdoor recreation at least six days per week between the hours of 8:00 a.m. and 9:00 p.m. (Id. fry VII at 40.) There is likewise no constitutional mandate that prisoners in protective custody be allowed to enroll in correspondence courses, have daily access to a book cart or have a minimum of three hours per day access to a day room. {Id. % XI, at 35, 38-39.) These provisions of the proposed Agreed Entry are the product of lengthy and detailed negotiations, but they go well beyond correcting any conceivable violation of plaintiffs' federal rights.
Constitutional issues
Plaintiffs begin their constitutional assault upon § 3626(a)(l)(A) by asserting that the construction which the court has adopted transgresses the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const, amend. X. Relying extensively upon New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), plaintiffs argue that the statute usurps the sovereignty of the states by restricting their ability to enter into settlement agreements, or more particularly, by "directing state government to admit to wrongdoing before they can enter into a consent decree in prisoner litigation." (Plaintiffs' Reply to Defendants' Brief on Proposed Agreed Entry at 8.)
15

In New York, the Supreme Court held that the so-called "take title" provision of the Low-Level Radioactive Waste Policy Act was outside Congress' enumerated powers and inconsistent with the Tenth Amendment because it offered state governments a choice of either accepting ownership of radioactive waste or regulating according to the instructions of Congress. The Court noted that a state could not decline to administer the federal program provided in the Act and that regardless of which path a state chose, it was forced to follow the direction of Congress. In effect, a State government was offered "no option other than that of implementing legislation enacted by Congress." Id. at 176-77, 112 S.Ct. at 2428-29. As the Court observed, "Congress may not simply 'commandcc(r) the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.'" Id. at 161, 112 S.Ct. at 2420 (quoting Hodel v. Virginia Surface Mining &. ReclamationAssn., Inc., 452 U.S. 264, 288, 101 S.Ct. 2352, 2366, 69 L.Ed.2d 1 (1981)).
That is not the situation here. Fundamentally, § 3626(a)(l)(A) prohibits a court from approving prospective relief in the absence of certain findings. The provision is directed to the courts, not the states, and it does not force states to implement federal legislation. The fact that a state may be left with a choice of either admitting liability to gain court approval of a settlement or proceeding to trial does not somehow compel the state to adopt a federal regulatory program or commander state legislative processes. The PLRA cannot be said to usurp state sovereignty, and the Tenth Amendment is not violated.
The plaintiffs further contend that the construction of § 3626(a)(lXA) adopted here would violate the Equal Protection Clause of the Fifth Amendment. In general, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally

related to a legitimate state interest." City of Clebume v. Cleburne Living Or.. Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990). However, if the statute employs a suspect classification or burdens the exercise of a fundamental right, it is subjected to strict scrutiny and will be sustained only if it is suitably tailored to serve a compelling state interest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. In this case, plaintiffs assert that the PLRA and § 3626(a)(l)(A) in particular impinge upon or burden prisoners' right of court access "by making their litigation more difficult, costly and burdensome than that of other civil right litigants." Because the provisions do not serve a compelling governmental interest, plaintiffs argue, they fail the strict scrutiny test.
It is well-established that prisoners have a fundamental right of access to the courts. Lewis v. Casey, U.S. , 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The right of access, however, is merely "the right to bring to court a grievance that [an] inmate wish[es] to present," Lewis, 116 S.Ct. at 2181; the Supreme Court has expressly disclaimed any notion in its precedents that the right of access includes a right "to litigate effectively once in court." Id. Section 3626(a)(l)(A) does not in any way impede prisoners' ability to file civil actions challenging the conditions of their confinement. In rejecting a similar claim that § 3626(bX2), the PURA's consent decree termination provision, impinged on prisoners' right of access, the court in Plyler observed that "by its terms § 3626(b)(2) neither prohibits prisoners from filing civil suits challenging the conditions of their confinement nor impedes their ability to do so." 100 F.3d at 373. The inmates in Plyler also claimed that § 3626(b)(2) burdened a fundamental right to enforce the successful result of a civil suit by prohibiting them from enforcing the terms of a
17

consent decree. To this, the court responded: "[TJhe Inmates have confused the right of access to the courts with the scope of the available substantive relief. Under the PLRA, the Inmates remain free to bring civil rights actions challenging the constitutionality of conditions . . . in prisons and are entitled to enforce judgments rendered on those claims." Id. In Benjamin, a case which also involved a challenge to § 3626(b)(2), the court stated: "The provisions granting immediate termination of prospective relief in the PLRA do not implicate this right of initial access to commence a lawsuit. Therefore, strict scrutiny is inappropriate." 935 F.Supp. at 35152. In Roller v. Gunn, F.3d , No. 96-6992, 1997 WL 66703 (4th Cir. Feb. 19, 1997), the court rejected a claim that the PLRA amendments to 28 U.S.C. § 1915, which subject prisoners to liability for fees and costs on appeal, violate a prisoner's right of access. There, the court stated: "[Tjhc right of access to federal courts is not a free-floating right, but rather is subject to Congress' Article III power to set limits on federal jurisdiction. Indeed, Congress is neither 'constitutionally required to create Article III courts to hear and decide cases within the judicial power of the United States/ nor to vest those courts that are created 'with all the jurisdiction it was authorized to bestow under Article DDL'" Id. at *4 (quoting Paimore v. United States, 411 U.S. 389, 400-01, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973)); see Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997) (same). In Zehner v. Trigg. F.Supp. , No. H-74-230, 1997 WL 16504 (S.D. Ind. Jan. 15, 1997), Judge Lozano held that the PLRA's "physical injury" requirement, 42 U.S.C. § 1997e(e), did not transgress prisoners' right of access because it did not "burden plaintiffs' ability to bring a new civil action." Id. at *13. In that case, the court stated:
The First Amendment right to petition the government for redress of
grievances focuses on procedural impediments to the exercise of existing
18

rights. It does not prevent a court from holding that a plaintiff has no remedy at law for the injuries he may allege . . . . By the same token, the constitutional right of access to the courts does not prevent Congress from enacting legislation that changes the substantive rules of law that apply in the courts. Id. at *13 (citing Bowman v. Niagara Afach. & Tool Works, Inc., 832 F.2d 1052, 1054 (7th Cir. 1987)). The same principles apply here. The plaintiffs in this case, like the inmates in Plyler, have confused the right of access with the scope of the available relief. Section 3626(a)(l)(A) clearly does not burden a fundamental right. Because prisoners otherwise do not constitute a suspect class, Pryor, 914 F.2d at 923, the strict scrutiny analysis urged by plaintiffs is inapplicable. Plaintiffs maintain, nonetheless, that § 3626(a)(l)(A) fails under the rational basis test. Legislation "neither involving fundamental rights, nor proceeding along suspect lines is accorded a strong presumption of validity," Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993), and "a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Id. Scariano v. Justices of Supreme Court qflnd., 38 F.3d 920, 924 (7th Cir. 1994). The Supreme Court has emphasized that rational basis review "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices," FCC v. Beach Communications. Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2100-01, 124 L.Ed.2d 211 (1993), and it does not authorize "the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 LEd.2d 511 (1976) (per curium). A classification "must be upheld against
19

equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Beach Communications, 508 U.S. at 313, 113 S.Ct. at 2101. Moreover, tt'[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support i t / whether or not the basis has a foundation in the record." Heller, 509 U.S. at 321, 113 S.Ct. at 2643 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)).
Relying on the Supreme Court's decision in Romer v. Evans, U.S. 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), plaintiffs argue that Congress was "motivated by animus toward the class of prisoners" when it enacted the PLRA and that § 3626(a)(l)(A) thus lacks a rational basis. In Romer, the Court held that "Amendment 2" to the Colorado Constitution violated the Equal Protection Clause of the Fourteenth Amendment. Amendment 2 prohibited "all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians." Id. at , 116 S.Ct. at 1623. In concluding that the Colorado amendment failed the rational basis test, the Court stated:
First, the amendment has the peculiar property of imposing a broad and undifferentiatcd disability on a single named group, an exceptional and . . . invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. Id, at , 116 S.Ct. at 1627. The PLRA does not compare with the enactment condemned in Romer. The PLRA, unlike Colorado's Amendment 2, does not impose a "broad and undifferentiated disability" upon prisoners, and its scope is entirely consistent with its apparent purposes. Section 3626(a)(l)(A) does not prevent prisoners from applying to the courts for enforcement
20

of their federal rights. It does say, under the construction adopted here, that a court will not be permitted to approve prospective relief in civil actions challenging prison conditions without determining that the prisoners' federal rights have been violated. This limitation focuses upon a court's authority to grant a specific form of relief in a particular type of civil action. It is an apparent product of concern that the federal courts had overstepped their authority in overseeing prison reform litigation; that the courts were approving broad consent decrees without any indication that the conditions they addressed violated the constitutional rights of a particular prisoner; and that the decrees had developed lives of their own, with the courts insinuating themselves into the minutiae of state and local prison management. In the PLRA, and § 3626(a)(l)(A) in particular, Congress apparently sought to ensure that judicial intrusions into the. management and operation of prisons were limited in scope and justified by certain specific findings. As the court in Pfyler found, "Congress has a legitimate interest in preserving state sovereignty by protecting states from overzealous supervision by the federal courts in the area of prison conditions litigation." 100 F.3d at 374. Section 3626(a)(l)(A) is rationally related to that legitimate interest. Jensen v. Coumy of Lake, F.Supp. , No. H-74-230, 1997 WL 101991 *7-8 (N.D. Ind. Mar. 5, 1997); Benjamin, 935 F.Supp. at 354; see also Roller, F.3d at , 1997 WL 66703 at *6.
Lastly, plaintiffs contend that the court's construction of § 3626{a)(l)(A) would violate the separation of powers doctrine. Relying on United States v. Klein, 80 U.S. (13 Wall.) 128,20 L.Ed 519 (1871), plaintiffs argue that the PLRA unconstitutionally prescribes rules of decision. Klein involved a suit by the administrator of the Estate of V.F. Wilson, a former rebel sympathizer whose cotton had been sold by treasury agents during the War Between the States.
21

Klein's action, which sought to recover the sale proceeds from the United States, was based on

the Abandoned and Captured Property Act of March 3, 1863, 12 Stat. 820. The Act authorized

noncombatant property owners to sue in the Court of Claims to recover the proceeds of property which had been sold, upon proof, inter alia, that they had "never given any aid or comfort to the present rebellion. . . . " On December 8, 1863, President Lincoln issued a proclamation

granting a full pardon, with restoration of all rights of property, to "certain persons who had

been engaged in the rebellion [and who] desired to resume their allegiance and reinaugurate local

State government within and for their respective States." 80 U.S. (13 Wall.) at 131. The pardon was given "upon condition that every such person shall take and subscribe a prescribed oath of allegiance. . . . " Id. at 132. Before his death in 1865, Wilson had taken the loyalty oath. In

1869, the Court of Claims decided that Wilson had been entitled to receive the proceeds of his

cotton and awarded $125,000 to Klein, the administrator. On July 12, 1870, while the case was

on appeal to the Supreme Court, Congress enacted legislation which provided that "no pardons . . . granted by the President . . . shall be admissible in evidence on the part of any claimant

in the Court of Claims as evidence in support of any claim against the United States

"

16 Stat. at Large, 235. The law further provided that the granting and acceptance of such a

pardon would be deemed conclusive evidence that the recipient gave aid and comfort to the

rebellion, and that "on proof of such pardon and acceptance, which proof may be heard summarily on motion or otherwise, the jurisdiction of the court in the case shall cease, and the court shall forthwith dismiss the suit of such claimant." Id.

In declaring this proviso unconstitutional, the Supreme Court observed:
It is evident. . . mat the denial of jurisdiction to mis court, as well as to the Court of Claims, is founded solely on the application of a rule of

22

decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction.
It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. 80 U.S. (13 Wall.) at 146.3 The PLRA does not, as plaintiffs maintain, parallel the circumstances which the court confronted in Klein. Unlike the legislative proviso in Klein, the PLRA makes no attempt "to prescribe a rule for the decision of a cause in a particular way." 80 U.S. (13 Wall.) at 146. Although § 3626(aXl)(A) prohibits a court from approving prospective relief in the absence of a finding that the relief is no greater than necessary to correct the violation of a federal right, it does not purport to state how much relief is more than necessary, and it does not prevent a court from approving a particular form of prospective relief if it can make the required findings. In passing the PLRA, Congress has done nothing more than change the law applicable to pending cases without mandating a particular outcome. See Robertson v. Seattle Audubon Society, 503 U.S. 429, 438,112 S.Ct. 1407, 1413, 118 L.Ed.2d 73 (1992) (holding that statute did not violate separation of powers where it "compelled changes in law, no findings or results under old law"); United States v. Sioux Nation of Indians, 448 U.S. 371, 405, 100 S.Ct. 2716, 2736, 65 L Ed.2d 844 (1980); Axel Johnson Inc. v. Arthur Andersen & Co., 6 F.3d 78, 81 (2d Cir. 1993); Berning v. A.G. Edwards & Sons, Inc., 990 F.2d 272, 278-79 (7th Cir. 1993); Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1573 (11th Cir. 1992). The PLRA,
'"Though not peraoent bete, the court also found that the rate prescribed by the proviso was "liable to just exception as inpaining the effect of a pardon, and thus nfrittging die constitutional power of the Executive." Klein 80 U.S. (13 Wall.) at 147.
23

therefore, does not violate the principles established in Klein. See Plyler, 100 F.3d at 372; Benjamin, 935 F.Supp at 349-50.
In a related argument, plaintiffs maintain that the PLRA's restrictions on remedies available in constitutional cases violate the doctrine of separation of powers by usurping the Article III authority of federal courts. In this regard, plaintiffs complain that the Act would "make prison conditions litigation so burdensome that it cannot be pursued effectively," and would require periodic constitutional hearings merely to effectuate this court's existing decree, and thus "impermissibly undermineQ the court's authority to effectuate the remedial purpose of its lawful orders." (Plaintiffs' Reply to Defendants' Brief on Proposed Agreed Entry at 26-27.) According to plaintiffs, M(t]he bottom line is that the PLRA is calculated to make effective implementation of relief in prison conditions litigation a practical impossibility." (Id. at 26.)
While "Congress cannot tell courts how to decide a particular case, . . . it may make rules that affect classes of cases." Lindh v. Murphy, 96 F.3d 856, 872 (7th Cir. 1996) (citing Plata v. Spendthrift Farm, Inc., 514 U.S. 211, , 115 S.Ct. 1447, 1452-53, 131 L.Ed.2d 328 (1995)). Indeed, there can be no question that Congress has "ample power to adjust the circumstances" under which a remedy is deployed. Lindh, 96 F.3d at 872. The PLRA does not prevent an award of injunctive relief to remedy a constitutional violation. Section 3626(aXl)(A), however, does require plaintiffs to prove their claim, and the court to so find, before prospective relief can be granted. Such a restriction does not transgress the separation of powers doctrine. See Zehner, at *10-12; Benjamin, 935 F.Supp. at 3*50.
24

Petition for Attorney's Fees and Expenses
Plaintiffs have submitted a petition for attorney's fees and expenses based on the assumption that the Agreed Entry would be approved. To qualify for attorney's fees under 42 U.S.C. § 1988, however, the plaintiffs must be a "prevailing parry." Plaintiffs may be considered "prevailing parties1* under § 1988 "'if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckernart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 R2d 275, 278-79 (1st Or. 1978)). SeeFanarv. Hobby, 506 U.S. 103, 11112, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992); Balark v. City of Chicago, 81 F.3d 658, 664 (7th Cir. 1996). In this case, however, plaintiffs have not prevailed on their motion for contempt which sought to enforce the original Agreed Entry and, for the reasons already discussed, the court cannot approve the new Agreed Entry on the basis of the present record. Absent a favorable disposition of their motion for contempt or the approval of the new Agreed Entry, plaintiffs cannot be considered prevailing parties under § 1988. See Cody v. City of Chicago, 43 F.3d 326 (7th Cir. 1994). Accordingly, plaintiffs petition for attorney's fees and expenses must be denied as premature.
25

Conclusion
For the foregoing reasons, it is RECOMMENDED that plaintiffs' request for approval of the proposed Agreed Entry be DENIED, and that their petition for attorney's fees and expenses be DENIED as premature.
NOTICE IS HEREBY GIVEN that within ten (10) days after being served with a copy of this recommended disposition a party may serve and file specific, written objections to the proposed findings and/or recommendations. Fed.R.Civ.P. 72(b). FAILURE TO FILE OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Thomas v. Am, 474 U.S. 140,106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Larrov. QuakerOats Co., 84 F.3d 239 (7th Cir. 1996); Lockert v. Faulkner, 843 F.2d 1015 (7th Cir. 1988); Video Views, Inc. v. Studio 21 Ltd., 797 F.2d 538 (7th Cir. 1986).
Dated this 28th day of March, 1997.

cc: Judge Sharp Magistrate Pierce

Robin D. Pierce, U.S. Magistrate Judge

26

 
 /

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

INMATES OF WESTVILLE CORRECTIONAL ) CENTER; ROGER W. ANDERSON, et al., )
) Plaintiffs,

No. S-83-481

v. EVAN BAYH, et al.,

.Defendants.

ORDER On Plaintiffs1 motion, the Court's active jurisdiction and

supervision of the Agreed Entry entered in this case shall continue

until such time as the defendants substantially comply with the

terms of the Agreed.

ORDERED this day to be effective, nunc pro tune, as of

December 2, 1993.

So Ordered.

DATED:

1994

cc: David Vandercoy VALPARAISO UNIVERSITY LAW SCHOOL Heritage Hall Valparaiso. IN 46383
Mark Lopez American Civil Liberties Union 1875 Connecticut Ave.. N. W .. Suite 410 Washington. D.C. 20009
Hamid R. Kashani 445 North Pennsylvania S t . Suite 600 Indianapolis, Indiana 46204
Seth Lahn. Deputy Attorney General 219 State House Indianapolis. IN 46204

Allen Sharp, CHIEF JUDGE U.S. DISTRICT COURT
Anderson v. Bayh

PC-IN-002-013

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

INMATES OF WESTVILLE CORRECTION AL CENTER )

ROGER W. ANDERSON

)

Individually and on behalf of all others similarly situated,

CIVIL ACTION )
) C O M P L A I N T - C L A S S A C T I O N ;••*.>*

-VS-

Pla int iff

R O B E R T O R R , i n d i v i d u a l l y and in h i s official capacity as G O V E R N O R of the State of Indiana

Anderson v. Bayh

G O R D O N H. F A U L K N E R , i n d i v i d u a l l y and in his official c a p a c i t y as C o m m i s s i o n e r of the Indiana Department of Correction
G. M I C H A E L B P O G L I N , i n d i v i d u a l l y and in his official capacity as SuperintP'dent of tha '.Jestville C o r r e c t i o n a l C e n t e r , Vestville, Indiana,

™ •• • • • • • • •• •
PC-IN-002-001

Defendants

CLASS ACTION COMPLAINT

/.

. I.

P i" e 1 i in jna r_y S_t_a_t_e m en t

1 . T h i s i s a n a c t i o n f o r d e c l a r a t o r y a n d i n j u n c t i v e r e l i c - it brought b yt h enamed plaintiff, w h oi sa prisoner incarcerated^

in t h e\Jestville C o r r e c t i o n a l C e n t e r , W c s t v i l l e , I n d i a n a . P l a i n t i f f

brings h i srequests f o rinjunctive a n ddeclaratory relief o n behalf o f hi.i1 s e l f a n d a l l o t h e r s s i m i l a r l y s i t u a t e d t o r e - d r e s s t h e d e -

p r i v a t i o n undi-r c o l o r o f s t a t e l a wof. r i g h t s a n d p r i v i l e g e s g u a r a n t e e d

t o t h e m b y tiie C o n s t i t u t i o n o f t h e U n i t e d S t . i t e s , s p e c i f i c a l l y , h i s

r i g h t , g u a r a n t e e d b y I . h e !! i g h t h • • • M I F o u r t . r - n t h A , ..->il . n i s , t o S a

f r i- e f i1... in r n m l ;•. m l u n u •"• n a 1 ;• •> n i • 1. n i t .

II. Jurisdiction 2. J u r i s d i c t i o n is conferred on the Court by.28 U.S.C. §1343(3) and ( 4 ) , w h i c h p r o v i d e for o r i g i n a l j u r i s d i c t i o n of this court in all suits authorized by 42 U . S . C . §1983 to redress the d e p r i v a t i o n under color of state law of any r i g h t , p r i v i l e g e , or immunity secured to all persons w i t h i n the j u r i s d i c t i o n of the U n i t e d States by the Constitution of the United States or by an Act of Congress providing for equal or civil r i g h t s . 3. P l a i n t i f f ' s action for declaratory relief is authorized by 28 U . S . § 2 2 0 1 , 2 2 0 2 , and Rule 56 of the Federal Rules of Civil Procedure.
III. P L A I N T_L_F_F 4. The p l a i n t i f f is now and has been incarcerated, at all t i m e s r e l e v a n t to t h i s a c t i o n , in t h e I! c s t.v i 11 e C o r r e c t i o n a l C e n t e r , W e s t v i l l e , I n d i a n a , in the custody of the Indiana Department of Correc t ion .
IV . C L A S S _A C T I0 N A L1.1- (w\ T_ I 0_N S_ 5 . T he n a m e d p l a i n t i f f b r i n g s t h is a c t i o n o n h i s o w n hi'li.i I f and o n behalf o f a l l others similarly situated pursuant to Rule 23(a) a n d (b) (2) of t h e Federal Ruins of Civil Procedure. T h e a m b e r s o f t h e c l a s s a r e t h o s e p r i s o n e r s v h o a r e , o r n a y l»e i n t h e . f u t u r e , c o n f i n e d a t t l i e V.' e s t v i 1 1 e C o r r e c t i o n a l C e n t e r , V. e s Iv i 1 1 e , I n d i a n a , i n t h e c u s t o d y o f t h e fi • <! i ."> n a P >"•p ,. r t iv c u t o f C o r c <'• <• t i o n .
6 . T h e ri'ini i r . ;-i >: n t s o f '•"! n 1 e > 3 ;i I e ••;,.? t :

- - \> -~

.

^

-3-

(a) T h e class consists of at least 2900 persons, the number of prisoners presently confined to the Westville Correctional Center.
(b) There a r e questions of law and fact common to the . class, specifically, whether the conditions, practices and policies of the Indiana Department of Correction and t h e - •• VJestville Correctional Center deprive plaintiffs and the class of their right to be free from cruel and unusual punishment as guaranteed to them by t h e E i g h t h a n d t h e F o u r t e e n t h A m e n d m e n t s t o t h e * •' United States Constitution;
(c) the claims of representative party is typical of t h e c l a s s ;
(d) the representative party will fairly and adequately protect the interests of the class inasnuch as he has no interests of other class members and a r e represented by counsel experienced in this type of litigation; and
(e) finally, the parties opposing the class have acted or refused to a c t on grounds generally applicable to the class, thereby ciking
i
a p p r o p r i a t e f i n a l i n j u n c t i v e a ii d d oc 1 a r a L o r y v o l i e f v i t h rc p sc- c t t o t h e c 1 .i ?s >"?•> a who 1 e .
V .
D o f i . - n i ! . . ii t s 7 . 01- f i"' n <\ a n t P. o 1 i • r t O r r i s i '. e C u v e n i o r o f I h o S t ,\ l e o f

I n d i a n a and the head of the E x e c u t i v e B r a n c h of g o v e r n m e n t of the State of I n d i a n a . The W e s t v i l l e C o r r e c t i o n a l Center is operated by the I n d i a n a D e p a r t m e n t of C o r r e c t i o n , a b r a n c h of the executive b r a n c h . .The G o v e r n o r of Indiana a p p o i n t s the Commissioner of Correction.
8. D e f e n d a n t G o r d o n H. F a u l k n e r is the C o m m i s s i o n e r of the Indiana D e p a r t m e n t of Correction and e x e r c i s e s supervisory power over the c o r r e c t i o n a l institutions of the State of Indiana, including tlie V e s t v i l l e C o r r e c t i o n a l C e n t e r .
9. D e f e n d a n t G. M i c h a e l Broglin is t h e S u p e r i n t e n d e n t of t h e Westville Correctional Center and administers the operation of the Westville Correctional Center, including having custody and control of all prisoners confined there.
VI . Statement of Tacts 10. T h e W e s t v i l l e C o r r e c t i o n a l C e n t e r i s a p r i s o n w h i c h h o u s e s male adult offenders who a r e conmitted t o the Indiana Department o f C o r r e c t i o n ; i t h a s b e e n r a t e d b y tlie I n d i a n a D e p a r t m e n t o f C o r r e c t i o n a s h a v i n g a c a p a c i t y o f 1 6 0 0 ,b u t a s o f J a n u a r y 1 , 1 98 6 ,t h e population o f the Westville Correctional Center was approximately 3,000 o r 8 8 % above its rated bed capacity. 1 1 . T h e t o t a l i t y o f t h e c o n d i t i o n s o f c o n f i n e m e n t a t tlie Westville Correctional Center constitute cruel and unusual p-i n i f l i r . o n t . 1 2 . M e m b e r s o f t h e p l a i n t i f f c 1.i ss a r e h o u s e d i n d o r m i t o r i e s a t t h e W e s t v i l l e C o r r e c t i n n a l C > u i ••r , v h i c h i n c l u d e s t h e " n x i ' i u m S r - n i r i t y U n i t ( ' : S L ' ) , t h a t i s ::. a«l<.- ' . po f i n d i v i d u a l c e l l s tliat,

. w

•—

-5- •

house special status inmates. 13. The dormitories at the Westville Correctional Center are
severely o v e r c r o w d e d , all being double-bunked and not capable of housing their p r e s e n t n u m b e r of inmates under c o n t e m p o r a r y sanitary standards.
14. T h e h e a t i n g and v e n t i l a t i o n in the d o r m i t o r i e s at the Westville C o r r e c t i o n a l C e n t e r is not sufficient due to the o v e r crowded conditions within said dormitories, special units, and thus creates a health hazard for plaintiff and the class.
15. T h e r e is an i n s u f f i c i e n t number of s h o w e r - h e a d s to accomir.odate the n u m b e r of p e r s o n s assigned to the i n d i v i d u a l dormitories at the W e s t v i l l e Correctional Center.
16. T h e r e " i s an i n s u f f i c i e n t number of toilets to a c c o m m o d a t e the number of p e r s o n s a s s i g n e d to the individual d o r m i t o r i e s at the Westville Correctional Center.
17. T h e r e h a s b e e n a d e c l i n e in the g e n e r a l s a n i t a r y c o n d i t i o n s
i
a t t h eW e s t v i l l e C o r r e c t i o n a l C e n t e r d u e t o t h e i n c r e a s e d p o p u l a t i o n . 1 8 . T h ed o r m i t o r i e s a t t h eU ' e s t v i l l e C o r r e c t i o n a l C e n - t e r a r e
i n f e s t e d w i t h i n s e c t s , m i c e a n d o t h e r v e r m i n w h i c h i m p a c t s o n tlie environmental health of t h e institution.
1 9 . T h e i n a d e q uji t e s a n i t a r y c o n d i t i o n s d u e t o t h e o v e r c r o w d e d p o p u l a t i o n a t t h eV.'cstville C o r r e c t i o n a l C e n t e r h a v e c r e a t e d a n e n v i r o n m e n t a l h e a l t h h a z a r d f o r t h e i n m a t e s i n c a r c e r a t e d , t h e rQ.
2 0 . T h eo v e r c r o w d e d c o n d i t i o n s a t t h eV.'cstville C o r r e c t i o n a l / Ctntf-r h a v e l e d t o a n i n c r e a s e d tuns ion level a n d p h y s i c a l s n d v e r b a l a s s a u l t s b e tv: c e n b o t h i m v . t c s a n d s t a f f .
.? 1 . T h e m o d jc a I c ;i r e d c 1 i v • i v s y L; t c m a t t h e '..' c-.-; I. v i1 1e C o r i i ' C t i o n a l C c . - n t . o r h a s i n a d t- .• >•.i i i; s t.i f I' i a c, t o ;:.." n t t h e m . ' I i < : n l

- 6-

needs of the inmates at the Westville Correctional Center.

22. The. p r o f e s s i o n a l health care p r o v i d e r s at the Westville

Correctional Center consist of o n e (1) consulting doctor w h o is

scheduled to be physically Present o n e Lour a i a y , five days a

week; one (1) p h y s i c i a n ' s a s s i s t a n t ; and one (1) r e g i s t e r e d n u r s e .

23.

Overpopulation at the VIestville Correctional Center has

caused an i n c r e a s e in i d l e n e s s at t h a t i n s t i t u t i o n and a l a r g e

number of inmates b e i n g a s s i g n e d m e a n i n g l e s s and menial

•'

:

VTI .

tasks.

Claim for Relief

24. T h e named plaintiff a n d t h e class have been deprived

and will continue t o b e deprived o f t h e right t o b e free from

cruel and unusual punishment guaranteed t o them b y the Eighth and

Fourteenth Amendments t o the United States Constitution b y their

confinement in t h e Westville Correctional Center under the conditions

set forth in this complaint.

'.

2 5 . P l a i n t i f f a n dt h e c l a s s h a v e s u f f e r e d a n d w i l l c o n t i n u e to suffer irreparable a n d immediate harm a n d injury until such time as t h e court requires t h e defendants t o operate the VIestville C o r r e c t i o n a l C e n t e r s o a s n o t t o d e p r i v e p l a i n t i f f a n dt h e c l a s s o f t h e r i g h t s g u a r a n t e e d t o t h e in b y t h e E i g h t h a n d f o u r t e e n t h Amendments to the Untied Scutes Constitution.
i'a.\YKr. -on. p.I:LLI;F

V.'il i :KI". F 0 1 : E , p l a i n t i f f p r a y ; , m i b e h a l f o f h i :s o I f a n d o n h . - V i l f <.-> f . i l lo t h e r p i . - r :; u i i : j . s i i . i l • r 1 y . s i I n ; H < - n * , I v , i t l l . e C o u r t :

1. A s s u m e j u r i s d i c t i o n of this action and set this cause down promptly for a hearing.
2. D e t e r m i n e by order as soon as p r a c t i c a b l e , p u r s u a n t to rule 23(c) (1) of the Federal Rules of Civil P r o c e d u r e , that this action may be maintained as a class action.
3. Enter a preliminary injunction, to be later made permanent, p r o h i b i t i n g d e f e n d a n t s , their e m p l o y e e s , a g e n t s , s u c c e s s o r s in o f f i c e , and all o t h e r p e r s o n s in a c t i v e c o n c e r t w i t h them from c o n t i n u i n g to d e p r i v e p l a i n t i f f s and the c l a s s as set forth in this complaint of the right to be free from cruel and unusual punishment •as g u a r a n t e e d t o t h e m b y t h e E i g h t h a n d F o u r t e e n t h A m e n d m e n t s to the United States Constitution;
A. Enter a final judgment, pursuant to.28 U.S.C. §2201 and §2202 and Rule 54 of the Federal Rules of Civil Procedure declaring that the c o n f i n e m e n t of p l a i n t i f f s and the c l a s s in the V.'estville C o r r e c t i o n a l C e n t e r c o n s t i t u t e s c r u e l and u n u s u a l p u n i s h m e n t in violation of the E i g h t h and Fourteenth A m e n d m e n t s to the United Slates Constitution;
5. Grant p l a i n t i f f the costs of this a c t i o n , attorney's fees, and such other and f u r t h e r relief as is just and proper in the premises. DATKD :
err
?\\ i r<1( : K S:'IT H
S." 1 fli A N D S v l T H ?0 8 Jefferson A v e nue l a T o r t o , fiiLi';;n,i A 6 3 5 0 T. i ,|,lH..ne : ( 2 1 9 ) 3 6 2 - 8 5 3 7 A ' • • >H •';>•.Y ['0* IM.AI N T ( !•" r

*#•

V J

C E R T I F I C A T E OF S E R V I C E T h i s is to c e r t i f y that a true and c o r r e c t copy of the foregoing was on t h e _ / J _ _ d a y of_February, 1986, deposited in the U n i t e d S t a t e s M a i l , p o s t a g e p r e p a i d , and a d d r e s s e d to L i n l e y P e a r s o n , A t t o r n e y G e n e r a l , S t a t e of I n d i a n a , and M i c h a e l S c h o e n i n g , Deputy A t t o r n e y G e n e r a l , State of I n d i a n a , 219 State H o u s e , Indianapolis, Indiana 46204.
a trick Smith

 
 Anderson v. Bayh

PC-IN-002-002

4
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

: • ' ".:i '.I :'•>

ROGER W. ANDERSON, et al., Plaintiffs,
v.
ROBERT ORR, et al., Defendants.

CIVIL ACTION NO. S83-0481

PLAINTIFFS' SUPPLEMENTAL SET OF INTERROGATORIES

The plaintiffs propound the following set of interrogatories for defendants' response. Each interrogatory is to be answered separately, fully, and under oath, within the time allotted by Rule 33 of the Federal Rules of Civil Procedure.
When addressing these interrogatories, the defendants are to exercise due diligence to secure the requested information and not merely respond on the basis of what they personally know at this time. The process of answering will require a search of past and present records and the securing of information in the possession of employees and other persons associated with defendants in their official capacities. If defendants cannot answer an interrogatory in full, after exercising due diligence to secure the information, they should state that fact and answer to the extent possible. When asked to furnish statistical data, if precise figures are not known or are not obtainable, defendants should indicate that fact and estimate the numbers involved and state the basis for the estimation (e.g. certain

individuals, specific documents, etc.) In the event more than

one person responds to these interrogatories, separate affidavits

should be furnished that specify the particular questions each

defendants has responded to.

When answering these

interrogatories, the interrogatory should be restated with the

answer immediately following. These interrogatories are of a

continuing nature and, therefore, require supplemental answers as

additional information and events accrue. The phrase "the past

three years" is another way of saying "since January 1, 1985."

A. Questions Related to Medical Care

1. How many Westville inmates died at the prison, in

transit to hospitals, or at hospitals during each of the past

three years?

Please identify each inmate by name and

institutional number and specify the cause of each death.

2. How many Westville prisoners during the past three

years have been diagnosed as having tuberculosis? Please

identify each inmate by name and institutional number.

3. Have there been any epidemics at the prison during the

past three years? If so, specify.the nature of each epidemic and

when it occurred.

4. Identify, by name and institutional number, every

Westville inmate who has been confined in the prison hospital

during the past three years. Please indicate by asterisks those

inmates who are currently confined in the hospital.

5. Identify, by name and institutional number, all Westville inmates who have been identified during the past three years as having diabetes, hypertension, asthma, AIDS or cardiac disease and specify which disease each inmate had.
6. Identify, by name and institutional number, all Westville inmates who have been prescribed special medical diets during the past three years.
7. Identify, by name and institutional number, all Westville inmate who have been transferred within the past three years to an outside medical facility for evaluation or treatment. Please indicate by asterisks all Westville prisoners who are currently receiving medical treatment at outside hospitals or specialty clinics.
8. Identify by name, professional title and institutional position, all members of the prison's medical staff. Describe the functions and responsibilities of each member, indicate the work shift each routinely works, the number of days and hours each normally works, and specify whether he or she is an employee or a contract professional. When answering this question, please group the doctors, nurses and other professionals separately.
9. Identify, by name, every guard and orderly who has been assigned on a regular basis to the prison hospital during the past three years. Please indicate by asterisks the guards and orderlies who are currently assigned to the hospital and indicate the respective work shifts they are assigned to.

10. How many general medical beds (as distinguished from psychiatric beds) are there in the prison hospital?
11. Identify, by names and addresses, all outside hospitals and specialty clinics where Westville Correctional Center prisoners are sent for diagnosis or treatment and indicate the kinds of services that are ordinarily provided at each facility.
B. Questions Related to Mental Health Services 12. How many Westville inmates are currently receiving psychotropic medications at the prison? Please identify each inmate by name and institutional number and specify the type of medication each is receiving. 13. How many Westville inmates have a diagnosis associated with psychotic symptoms? Please identify each inmate by name and institutional number. 14. How many Westville inmates have been committed or transferred from the prison to a state mental hospital during each of the past three years due to psychiatric disorders? Please identify each inmate by name and institutional number. 15. How many Westville inmates have committed suicide at the prison during each of the past three years? Please identify each suicide victim by name and institutional number. 16. How many inmates have attempted suicide at the prison during each of the past three years? Please identify each inmate by name and institutional number.

17. Identify, by name and institutional number, each inmate who has been confined in the prison's psychiatric dormitories (Dorms 1, 3 and 5) during the past three years. Please indicate by asterisks those inmates who are currently confined in those units.
18. I d e n t i f y (by n a m e , professional title and institutional position) all members of the prison's psychiatric staff. Describe the functions and responsibilities of each member, indicate the work shift each routinely works, the number of days and hours each normally works, and whether the staff member is an employee or a contract professional.
19. Identify, by name, all guards and orderlies who have been assigned on a regular basis to the mental health wards of the prison hospital during the past three years. Please indicate by asterisks the guards and orderlies who are currently assigned to those wards and indicate the work shifts they are assigned to.
20. How many psychiatric beds are there in the prison?
C. Questions Related to Inmate Classification and Violence 21. How many inmate-on-inmate assaults* have occurred at
the prison during each of the past three years? 22. How many inmate-on-inmate assaults during each of the
past three years have
*The term "assault" refers to a physical attack by one inmate on another. It is distinguishable from a fight between two inmates.

I t
(a) involved the use of a "shank" or some other kind of implement or weapon;
(b) involved or apparently involved rape, sodomy or some other form of sexual activity;
(c) resulted in an inmate death; (d) led to an inmate's hospitalization, or (e) required out-patient medical treatment? 23. During each of the past three years, how many Westville inmates have been convicted in a disciplinary proceeding of (a) assaulting another inmate; (b) assaulting another inmate with a weapon; (c) sexually assaulting another inmate; (d) assaulting a guard or other member of the prison
staff; (e) assaulting a guard or other member of the prison
staff with a weapon; (f) robbing another inmate; (g) possessing a weapon at Westville; (h) extorting another inmate, or (i) selling, possessing or using drugs at Westville? 24. During each of the past three years, how many Westville inmates have been convicted in a criminal proceeding of (a) assaulting another inmate; (b) assaulting another inmate with a weapon; (c) sexually assaulting another inmate; (d) assaulting a guard or other member of the prison
staff;

(e) assaulting a guard or other member of the prison staff with a weapon;
(f) robbing another inmate; (g) possessing a weapon at Westville; (h) extorting another inmate, or (i) selling, possessing or using drugs at Westville? 25. How many inmate fights (as opposed to assaults) have occurred at the prison during each of the past three years? 26. How many Westville prisoners have been placed in protective custody (whether by request or by involuntary assignment) during each of the past three years? Please identify each inmate by name and institutional number and indicate by asterisks those inmates who are currently in protective custody status. 27. What is the name and position of the person who determines whether a Westville inmate will be placed on protective custody status? If more than one person makes the determination or a committee makes such determinations, please identify all such persons or committees by name. 28. How many protective custody beds are located at Westville? 29. How many Westville prisoners have been placed in administrative segregation during each of the past three years because they were believed to pose a danger to other inmates? Please identify each inmate by name and institutional number.

D. Questionsft**iated to Programming and Idleness

30. State the dimensions (in square feet) of the prison's

general population exercise yards.

31. State the dimensions (in square feet) of the prison's

gymnasium(s).

*

32. State the name and title of the person who is in charge

of the prison's educational programming.

33. State the name and title of the person who is in charge

of the prison's industries and vocational programming.

34. State the name and title of the person who is in charge

of the prison's recreational programming.

35. Identify and describe generally the nature of all

educational programs that are available at the prison.

36. Identify and describe generally the nature of all work

or vocational programs that are available at the prison.

37. Identify and describe generally the nature of all

organized recreational programs that are available at the prison.

38. Identify and describe generally the nature of all

counseling programs that are available at the prison.

39. Identify, by name and position, all guards or other

prison personnel who supervise organized inmate work details at

the prison such as the cleaning and maintenance crews. When

doing so, specify the work detail each supervises as well as the

shift each routinely works in the institution.

40. How many inmates are employed in the prison's industries programs? Please specify the number of inmates who work in each,shop."
41. How many inmates are employed in other work programs at the prison? Please identify each work program and specify the number of inmates who are employed in each program.
42. How many Westville prisoners are enrolled in educational programs? Please identify each educational program and specify the number of inmates who are enrolled in each program.
Respectfully submitted,

Dated: January 25, 1987

fe Krakoff

U »

:k J. Lopez

National Prison Project of the

ACLU Foundation

1616 P Street, NW, Suite 340

Washington, DC 20036

(202) 331-0500

Lawrence G. Albrecht Clinical Program Director Valparaiso University School of Law Valparaiso, IN 46383

J. Patrick Smith Smith & Smith Law Building 708 Jefferson Square La Porte, IN 46350

Attorneys for Plaintiffs

 
 Anderson v. Bayh

r -

PC-N-002-003
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

Roger W. Anderson, individually, and on behalf of all other inmates similarly situated,
Plaintiff
v.
ROBERT ORR, in his official capacity as GOVERNOR of the State of Indiana
and
JOHN T. SHETTLE, in his official capacity as Commissioner of the Indiana Department of Correction
and
G. MICHAEL BROGLIN, in his official capacity as Superintendent of the Westville Correctional Center, Westville, Indiana,
Defendants

Civil Action No. S83-0481 Class Action
Second Amended Complaint

I. INTRODUCTION

Inmates of the Westville Correctional Center in Westville, Indiana, bring this civil rights action to challenge and obtain relief from a combination of adverse conditions at the prison that are inflicting cruel and unusual punishment upon them. They assert that the totality of conditions at the prison — severely overcrowded living areas, unacceptably high levels of peer violence, systematically deficient medical and psychiatric care,

and an array of other negative factors — creates an experience that falls below contemporary standards of human decency, produces serious deprivations of basic human needs, generates unnecessary pain and suffering, and compromises their physical and mental well being.
Through this action, the plaintiffs seek to obtain a declaratory judgment that their constitutional rights are being violated and a comprehensive remedial order to permanently abate the conditions that are causing the violations.

II. JURISDICTION

1. Jurisdiction to hear and decide this case is conferred

by 28 U.S.C. Section 1343 which grants federal district courts

original jurisdiction over suits seeking to redress deprivations

under color of state law of rights, privileges, or immunities

secured by the United States Constitution.

Pursuit of

declaratory relief is authorized by 28 U.S.C. Sections 2201 and

2202. A federal cause of action exists in this case by virtue of

42 U.S.C. Section 1983 since the constitutional deprivations

complained about are being inflicted by persons acting under

color of state law.

III. PARTIES

2. The representative plaintiff, Roger W. Anderson, is an inmate of the Westville Correctional Center in Westville,

Indiana. He represents a certified class that consists of all present and future inmates of the prison.
3. Defendant Robert Orr is Governor of the State of Indiana and head of the State's executive branch of government. As Governor, he appoints the Indiana Commissioner of Correction and retains ultimate administrative authority over the Department of Correction — a unit of the executive branch of government—
as well as the Westville Correctional Center. Governor Orr is sued in his official capacity.
4. Defendant John T. Shettle is the Commissioner of Correction for the State of Indiana. As Commissioner he exercises supervisory power over Indiana state prisons, including the Westville Correctional Center. Commissioner Shettle is sued in his official capacity.
5. Defendant G. Michael Broglin is Superintendent of the Westville Correctional Center. As the prison's administrator, he has custody and control of all prisoners confined in the institution and is responsible for its day-to-day operation. Superintendent Broglin is sued in his official capacity.
IV. FACTS
A. The Environment
6. The Westville Correctional Center is a medium security prison that houses adult prisoners who have been committed to the Indiana Department of Correction. With the exception of a small

maximum security unit, Westville's housing units are all dormitory-style.
7. The institution is profoundly overcrowded. Although it is designed to house approximately 1600 inmates, there are now almost 2800 inmates confined in the facility — a level that is 75 percent over capacity.
8. Because of the influx of so many prisoners, the dormitories at Westville have been double-bunked. This intense density of people has resulted in beds being laid virtually against each other and, in some instances, mattresses being placed directly on the dormitory floors.
9. Heating and ventilation in the living units is inadequate. As a result, the potential for the spread of contagious airborne diseases is magnified.
10. There are not enough toilets, sinks and showers in the living units to accommodate the prison's bloated inmate population. These inadequacies negatively affect inmate hygiene and increase the potential for the continuation and spread of diseases.
11. Numerous mattresses in the housing units are torn, soiled and stained. They are not cleaned between uses or shielded by mattress covers. Mattresses in these conditions are harborages for disease carrying insects and can lead to the transfer of disease organisms from one bed user to the next. Torn mattresses also pose fire hazards through the exposure of highly combustible materials.
12. Lighting in the living areas is inadequate. At night,

lighting is routinely less than 20 foot candles. 13. There are dangerous levels of cancer causing asbestos
under some of Westville's dormitories. 14. There are insufficient numbers of smoke detectors and
fire extinguishers in the institution. This increases the risk of a fire tragedy.
15. There are significant rodent infestations in the prison's food storage and service areas and a significant fly infestation in the food service facilities.
16. Food is refrigerated and served to inmates at unsafe temperature levels.
b. Violence
17. There is a substantial amount of inmate-on-inmate violence at the prison which has increased in recent years at a rate that is disproportionate to the growth of Westville's inmate population during the same time period. This unacceptably high level of violence stems from extreme tensions and hostilities engendered by the crowding of too many people into too little space; from a pattern of enforced idleness generated by the lack of sufficient educational, vocational and employment programming at the prison and from inadequate staff supervision.
18. The serious level of violence also stems from a breakdown in the prison's classification process caused by the failure to adequately separate predatory and violent inmates from non-violent prisoners.

C. Medical Care 20. Severe overcrowding at Westville strains the prison's medical resources to a dangerous level and jeopardizes the health of its inmates. 21. There are systemic deficiencies in medical staffing at the prison. Three part-time physicians combine to fill one fulltime physician's slot. Nursing and other support personnel are also seriously understaffed. 22. The current level of staffing at Westville is grossly inadequate to tend to the serious medical needs of the institution's nearly 2800 inmates. As a result, the diagnosis and treatment of serious medical conditions are routinely delayed and often unsatisfactory. 23. Sick call is conducted only once a week at the prison and for a period of time last summer had to be totally suspended altogether due to staffing shortages. 24. The quality of medical screening at the institution is inadequate. As a result, there is an increased risk that contagious diseases such as tuberculosis will be transmitted among the inmate population. 25. There is no coherent protocol for providing emergency medical care at the prison. As a result, emergency care is delayed and inadequate. 26. Follow-up medical care for chronic conditions is handled haphazardly. There is no comprehensive or organized system for such care. As a result, inmates in need of follow-up

treatment or examinations often fall between the cracks.
D. Psychiatric Care
27. Westville is a center for the State's mentally ill prisoners. A 200 bed mental health unit is maintained at the prison for the housing of prisoners who suffer from serious psychiatric disorders.
28. In addition to those mentally ill prisoners who are confined to the mental health unit, many others with serious disorders are housed in the institution's other living areas.
29. Direct contact between inmates with serious psychiatric disorders and the Westville's psychiatric staff is infrequent and superficial.
30. Physical restraints are often applied unnecessarily or maintained for unnecessarily protracted periods of time. These practices result in needless pain and suffering and are counter-therapeudic.
31. The nature and level of psychiatric care provided at the prison is inadequate to meet the serious psychiatric needs of Westville inmates. As a result, inmates are subjected to unnecessary pain and suffering.
E. Overcrowding
32. The mounting density of Westville's inmate population over the past several years has contributed to fundamental

deteriorations in institutional conditions to the point where basic human needs are not being provided. The quality of inmate shelter, the level of medical and psychiatric care and the degree of inmate protection from assault have all been seriously and adversely affected by profound overcrowding. The cumulative impact of conditions at Westville, aggravated by overcrowding, has resulted in intolerably high levels of inmate tension, stress, hostility and depression, and has produced needless pain and suffering.
IV. CLAIMS FOR RELIEF
33. The totality of conditions over which the defendants preside are incompatible with contemporary standards of decency and result in unnecessary and wanton inflictions of pain. By depriving plaintiffs of such basic human needs such as adequate shelter, personal safety, medical and mental health care, the defendants are violating plaintiffs', rights to be free of cruel and unusual punishment as prescribed by the Eighth Amendment to the United States Constitution.
34. By operating a prison health care system that is systematically deliberately indifferent to the serious medical and psychiatric needs of inmates, the defendants are violating plaintiffs' right to be free of cruel and unusual punishment as prescribed by the Eighth Amendment to the United States Constitution.

V. EQUITY
As a result of defendants1 policies, practices, acts, and omissions, plaintiffs are being irreparably harmed. They are either suffering or will soon suffer unnecessary pain and anguish, psychological as well as physical hurt and impairment, and the loss of their right to be imprisoned under conditions that do not inflict cruel and unusual punishment. Plaintiffs will continue to be irreparably injured by defendants1 policies, practices, acts and omissions unless this court grants comprehensive injunctive relief to abate the unconstitutional conditions that now exist in the institution.
VI. RELIEF
On the basis of the foregoing, the plaintiffs respectfully ask the court to:
1. Declare that the conditions described above violate the constitutional rights of the plaintiffs to be free of cruel and unusual punishment.
2. Enjoin the defendants, their agents, employees and all persons acting in concert with them from subjecting the plaintiffs to the unconstitutional conditions and. practices described above.
3. Retain jurisdiction of this case until all remedial orders have been fully implemented.
4. Award plaintiffs their reasonable costs and attorney's fees.

•

5. Grant whatever additional relief may be just and appropriate.

Rick G. Gikas Attorney at Law 7895 Broadway, Suite N Merrillville, IN 46410
Todd A. Dawson Attorney at Law 625 JMS Building 108 N. Main Street South Bend, IN 46601

M
Lawrence G. Albrecht Clinical Program Valparaiso University School of Law Valparaiso, IN 46383

(219) 465-7873

J. Patrick Smith Smith & Smith Law Building 708 Jefferson Square La Porte, IN 46350

Jere Krakoff Mark J. Lopez National Prison Project 1616 P Street, N.W. Suite 340 Washington, D.C. 20036

Dated: December 30, 1987

"I '
CERTIFICATE OF SERVICE
I hearby certify that I have served a copy of the foregoing Motion for Leave to Amend Complaint and Second Amended Complaint upon opposing counsel, the Attorney General of the State of Indiana by mailing to his assistant, David Arthur, at his offices at room 219, Statehouse, Indianapolis, IN 46204, first class postage prepaid, on the date appearing below.
DATED: December 30, 1987
Lawrence G. Albrecht Clinical Program Valparaiso University School of Law Valparaiso, IN 46383

 
 RECEIVED

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

t 0Aft
JAN I 01989

ROGER W. ANDERSON, e t a l . ,

RICHARD E TIMMONS, CLERK U.S. DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

Plaintiffs,

CIVIL ACTION

v.

:

No. S83-0481

ROBERT ORR, et al.,

Defendants.

AGREED ENTRY

This class action, brought on behalf of all present and

future offenders ofthe Westville Correctional Center, alleges that

certain conditions and practices atthe institution violate the

United States Constitution. Although the defendants categorically

deny that allegation, they believe it will be in the best interest

of the residents ofIndiana—including members ofthe plaintiff

class—for there to be an expeditious, orderly, and comprehensive

settlement ofthis case without the necessity of a trial. The

plaintiffs share this belief. Asa consequence, the parties now

agree to forego a trial on the merits and to bring this litigation

to a conclusion by submitting this Agreed Entry to the court for its

review and ultimate approval.

With the full and informed consent ofthe parties, in order

to resolve all claims asserted in this case, but without any

acknowledgment or finding ofliability orother determination on

Anderson v. Bayh
™ m •• •• • • • •
PC-IN-002-004

the merits, it is agreed that the defendants, their officers, agents, agencies, employees, subordinates, successors in office, and all those acting in concert or participation with them shall be bound by and comply with the following provisions:

I.

Westville Psychiatric Unit Provisions

1. The psychiatric unit (hereafter referred to as the

"Psych Unit") shall be expanded by July 1, 1989 to provide each

offender housed in it a minimum of fifty (50) square feet of

dormitory space and thirty-two (32) square feet of dayroom space.

2. The practice of using dayroom space in the Psych Unit

as a sleeping/observation area shall end upon completion of the

expansion project referred to above. Thereafter, a section of the

Unit dormitory shall be designated as a special observation area for

the housing of suicide-prone and other patients who require

particularly close observation.

3. Procedures consistent with those set forth in Appendix

A shall govern the use of mechanical restraints and seclusion rooms

in the Psych Unit.

4. The practice of housing mechanically restrained

patients along the hallway of the Psych Unit shall cease after

July 1, 1989.

5. A routine regimen of daily exercise shall be provided

to patients who are in restraints or seclusion for more than 48

hours, unless a psychiatrist, psychologist, or physician determines

that such exercise is contraindicated for a given patient. A minimum

of 45 minutes per day of exercise shall be made available unless medically contraindicated. After being in restraints seven (7) consecutive days--during the non-winter months--the exercise shall be held outdoors at least two days as week, weather permitting, unless a psychiatrist, psychologist or physician concludes that outdoor exercise is contraindicated for a given patient. The reasons a patient has not been provided exercise on a given day shall be documented in his psychiatric record. Patients in mechanical restraints shall be given the opportunity to shower and shave at least five days a week unless one of the above personnel concludes that doing so is contraindicated. If conditions permit, patients in mechanical restraints should be permitted to shower daily.
6. The Department of Correction shall modify its procedures for effecting mental health transfers to conform with the procedures set forth in Appendix B of this agreement.
7. Outdoor recreation shall be available to Psych Unit offenders during the non-winter months. A schedule shall be established and implemented by January 1, 1989, providing for reasonable periods of outdoor and indoor exercise five days a week on an alternating basis. The indoor exercise shall take place in a gymnasium or a functionally equivalent area of the prison. In the event of inclement weather, recreation shall be provided in the designated indoor recreation area, with outdoor recreation available the next week day weather permits. During the winter months, there shall be a reasonable amount of indoor exercise five (5) days a week.
3

8. Access to the institution infirmary shall be available to Psych Unit patients when deemed medically appropriate and upon orders of the attending physician.
9. Prison administrators shall undertake a ventilation assessment of the entire Psych Unit, and by September, 1989, shall increase ventilation in the seclusion rooms and in all other housing and dayroom areas of the Psych Unit to the levels specified in the American Public Health Association's Standards for Health Services in Correctional Institutions.
10. The following additional full-time equivalent personnel shall be employed at the prison to provide professional services in the Psych Unit:
a. One and one-half psychiatrists. b. One Ph.D. psychologist. c. Six Registered Nurses d. Six Licensed Practical Nurses. e. Five attendants. f. One Medical Records Administrator and one
clerk-typist. At least one-half of each of the above full-time equivalent personnel shall be employed by March 1, 1989 and the remainder by August 1, 1989.
11. Consistent with the above increases in staffing, there shall be a total of two and one-half psychiatrists, two Ph.D. psychologists, five psychiatric social workers, 12 RN's, 12 LPN's, 48 attendants, one medical records administrator and one clerk-typist employed on a full-time equivalent basis in the Psych Unit beginning August 1, 1989 and thereafter. In the event the patient population of the Unit should increase to more than 200, sufficient additional personnel in each of the above disciplines
4

shall be employed to ensure that an equivalent staff/patient ratio is maintained for each discipline. This ratio shall thereafter be maintained by making equivalent corresponding staff adjustments as the patient population increases.
12. All full-time employees employed in the Psych Unit shall be adequately trained in the care and handling of psychiatric patients. A training program shall be established by March 1, 1989, for that purpose.
13. No anti-psychotic medication may be forced upon an offender against his wishes except in an emergency and, then, only upon orders of a psychiatrist or physician after an individual determination by the psychiatrist or physician that:
a. The offender in question is mentally ill as defined by applicable state law;
b. administration of the medication is necessary to prevent serious risk of injury to the offender, to other offenders, or staff; and
c. in the professional judgment of the psychiatrist or physician, the probable benefit to the offender from receiving the medication outweighs the risk of harm to, and the personal concerns of, the offender.
No offender shall be force medicated for more than twenty-four (24) hours without being personally evaluated by a psychiatrist or physician; however this limitation shall not apply to an offender who is under the continuing care of a psychiatrist at Westville Correctional Center and is currently on a regimen of anti-psychotic medication.
5

RECEIVED

UNITED STATES DISTRICT COURT

, ,AA.

NORTHERN DISTRICT OF INDIANA

JAN 1 01989

SOUTH BEND DIVISION

~

ROGER W. ANDERSON, e t a l . , Plaintiffs, v.

RICHARD E. TIMMONS, CLERK US. DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

CIVIL ACTION

:

No. S83-0481

ROBERT ORR, et al.,

Defendants.

AGREED ENTRY

This class action, brought on behalf of all present and

future offenders of the Westville Correctional Center, alleges that

certain conditions and practices at the institution violate the

United States Constitution. Although the defendants categorically

deny that allegation, they believe it will be in the best interest

of the residents of Indiana—including members of the plaintiff

class--for there to be an expeditious, orderly, and comprehensive

settlement of this case without the necessity of a trial. The

plaintiffs share this belief. As a consequence, the parties now

agree to forego a trial on the merits and to bring this litigation

to a conclusion by submitting this Agreed Entry to the court for its

review and ultimate approval.

With the full and informed consent of the parties, in order

to resolve all claims asserted in this case, but without any

acknowledgment or finding of liability or other determination on

the merits, it is agreed that the defendants, their officers, agents, agencies, employees, subordinates, successors in office, and all those acting in concert or participation with them shall be bound by and comply with the following provisions:

I.

Westville Psychiatric Unit Provisions

1. The psychiatric unit (hereafter referred to as the

"Psych Unit") shall be expanded by July 1, 1989 to provide each

offender housed in it a minimum of fifty (50) square feet of

dormitory space and thirty-two (32) square feet of dayroom space.

2. The practice of using dayroom space in the Psych Unit

as a sleeping/observation area shall end upon completion of the

expansion project referred to above. Thereafter, a section of the

Unit dormitory shall be designated as a special observation area for

the housing of suicide-prone and other patients who require

particularly close observation.

3. Procedures consistent with those set forth in Appendix

A shall govern the use of mechanical restraints and seclusion rooms

in the Psych Unit.

4. The practice of housing mechanically restrained

patients along the hallway of the Psych Unit shall cease after

July 1, 1989.

5. A routine regimen of daily exercise shall be provided

to patients who are in restraints or seclusion for more than 48

hours, unless a psychiatrist, psychologist, or physician determines

that such exercise is contraindicated for a given patient. A minimum

of 45 minutes per day of exercise shall be made available unless medically contraindicated. After being in restraints seven (7) consecutive days—during the non-winter months--the exercise shall be held outdoors at least two days as week, weather permitting, unless a psychiatrist, psychologist or physician concludes that outdoor exercise is contraindicated for a given patient. The reasons a patient has not been provided exercise on a given day shall be documented in his psychiatric record. Patients in mechanical restraints shall be given the opportunity to shower and shave at least five days a week unless one of the above personnel concludes that doing so is contraindicated. If conditions permit, patients in mechanical restraints should be permitted to shower daily.
6. The Department of Correction shall modify its procedures for effecting mental health transfers to conform with the procedures set forth in Appendix B of this agreement.
7. Outdoor recreation shall be available to Psych Unit offenders during the non-winter months. A schedule shall be established and implemented by January 1, 1989, providing for reasonable periods of outdoor and indoor exercise five days a week on an alternating basis. The indoor exercise shall take place in a gymnasium or a functionally equivalent area of the prison. In the event of inclement weather, recreation shall be provided in the designated indoor recreation area, with outdoor recreation available the next week day weather permits. During the winter months, there shall be a reasonable amount of indoor exercise five (5) days a week.
3

8. Access to the institution infirmary shall be available to Psych Unit patients when deemed medically appropriate and upon orders of the attending physician.
9. Prison administrators shall undertake a ventilation assessment of the entire Psych Unit, and by September, 1989, shall increase ventilation in the seclusion rooms and in all other housing and dayroom areas of the Psych Unit to the levels specified in the American Public Health Association's Standards for Health Services in Correctional Institutions.
10. The following additional full-time equivalent personnel shall be employed at the prison to provide professional services in the Psych Unit:
a. One and one-half psychiatrists. b. One Ph.D. psychologist. c. Six Registered Nurses d. Six Licensed Practical Nurses. e. Five attendants. f. One Medical Records Administrator and one
clerk-typist. At least one-half of each of the above full-time equivalent personnel shall be employed by March 1, 1989 and the remainder by August 1, 1989.
11. Consistent with the above increases in staffing, there shall be a total of two and one-half psychiatrists, two Ph.D. psychologists, five psychiatric social workers, 12 RN's, 12 LPN's, 48 attendants, one medical records administrator and one clerk-typist employed on a full-time equivalent basis in the Psych Unit beginning August 1, 1989 and thereafter. In the event the patient population of the Unit should increase to more than 200, sufficient additional personnel in each of the above disciplines
4

shall be employed to ensure that an equivalent staff/patient ratio is maintained for each discipline. This ratio shall thereafter be maintained by making equivalent corresponding staff adjustments as the patient population increases.
12. All full-time employees employed in the Psych Unit shall be adequately trained in the care and handling of psychiatric patients. A training program shall be established by March 1, 1989, for that purpose.
13. No anti-psychotic medication may be forced upon an offender against his wishes except in an emergency and, then, only upon orders of a psychiatrist or physician after an individual determination by the psychiatrist or physician that:
a. The offender in question is mentally ill as defined by applicable state law;
b. administration of the medication is necessary to prevent serious risk of injury to the offender, to other offenders, or staff; and
c. in the professional judgment of the psychiatrist or physician, the probable benefit to the offender from receiving the medication outweighs the risk of harm to, and the personal concerns of, the offender.
No offender shall be force medicated for more than twenty-four (24) hours without being personally evaluated by a psychiatrist or physician; however this limitation shall not apply to an offender who is under the continuing care of a psychiatrist at Westville Correctional Center and is currently on a regimen of anti-psychotic medication.
5

14. In the event anti-psychotic medication is forced upon an offender for a period of more than five (5) consecutive days, the Psych Unit shall submit the plan to a consulting psychiatrist for his consideration and determination as to whether it is appropriate under the above standard to continue the involuntary administration of the medication. The Unit personnel shall abide by that psychiatrist's determination which shall be based, in part, on a review of records and a personal evaluation of the offender in question. The forced administration of anti-psychotic medication may not exceed of eight (8) days in the absence of the approval of the consulting psychiatrist. The approval of forced medication by the consulting psychiatrist shall remain in effect until the next semi-annual review of the offender's treatment program. Upon admission to the Psych Unit, an offender shall be informed of this procedure.
15. The consulting psychiatrist shall be selected from a list of qualified psychiatrists with institutional experience prepared by the Indiana District Branch of the American Psychiatric Association and may not have been employed by the Westville Correctional Center within the two years immediately preceding the selection. In the event none of the psychiatrists whose names appear on the list are willing to function as a consultant, the Department may retain the services of another psychiatrist to act as a consultant subject to the prior approval of plaintiffs' counsel.
16. A separate written log or other central record of all instances of forced medication shall be maintained. It shall list the names and institutional numbers of the offenders who refused medication, the date of each occurrence, the psychiatrist who
6

ordered the medication to be administered and a summary of the reason(s) for administering the drug.
17. Psychiatrists shall conduct medication reviews at least once a month for each Psych Unit patient which shall include a personal evaluation of the patient. A summary of the findings shall be written in the patient's chart.
18. Adequate space shall be provided for group and individual therapy by July 1, 1989.
19. Offenders who have been approved by the Psych Unit staff for discharge from the Unit shall be transferred to a living area off the Unit within ten (10) days after the approval has been made.
20. Modifications shall be made by July 1, 1989 in the toilet facilities of Five Dorm of the Psych Unit to create a reasonable degree of privacy for the patients.
21. Sufficient seating accommodations shall be provided in the dayroom areas of the Psych Unit for the patients.
II. General Population Psychiatric Provisions 1. A full-time psychiatrist shall be employed at Westville
to provide psychiatric services for general population offenders (as well as offenders housed in the institution's segregation unit). At least one half of this full-time ^equivalent position shall be obtained by March 1, 1989 and the remainder by August 1, 1989. This position shall replace the part-time psychiatrist position that currently exists for those areas of the institution.
7

2. An additional full-time Ph.D. psychologist shall be employed at Westville to provide psychological services for general population and segregation offenders. At least one-half of this full-time equivalent position shall be obtained by March 1, 1989 with the remainder obtained by August 1, 1989. With this addition, the institution shall employ a total of two full-time equivalent psychologists for the general prison population.
3. An additional behavioral clinician or psychiatric social worker shall be employed at Westville to provide counseling services for general population and segregation offender by January 1, 1989. With this addition, the institution shall employ a total of four behavioral clinicians or the equivalent.
III. Medical Care Provisions 1. There shall be a minimum of four (4) full-time licensed
physicians employed at Westville no later than August 1, 1989. 2. The physicians employed at Westville shall be
reasonably conversant in English so that they will be able to adequately communicate with offenders, staff, and outside medical consultants.
3. One of the staff physicians shall be designated as the medical director of the institution. The medical director shall:
a. have input into budgetary decisions; b. have input into medical-related staffing decisions; c. be the final authority on health-related matters;
8

d. be responsible for the establishing a medical reference library; and,
e. be responsible for developing and implementing by October 1, 1989, comprehensive written medical policies, procedures
and practices forthedelivery of medical care at theinstitution.
These policies, procedures and practices shall relate to, among other things, triage and other aspects of the institution's sick call system; emergency health care; medical record-keeping; follow-up after outpatient consultations with medical specialists and outside medical facilities (including a system for screening offenders returning from consultations or hospitalizations, where medically appropriate, and the timely recording of reports or instructions received from those sources); the establishment of death and quality assurance committees; a. system to monitor medications for offenders who have serious communicable and chronic diseases; special diets; prescribing medication; radiology; admissions to and the operation of the in-patient infirmary and chronic care units; specialty clinic referrals; sexually transmitted diseases; and tuberculosis testing and treatment.
4. Two full-time clerks assigned to medical records shall be employed at Westville by September 1, 1989 to work in the medical department.
5. A sick call system shall be developed and implemented at Westville by August 1, 1989, whereby each offender in general population shall have access to sick call at least four (4) days per week. When an offender signs up for sick call, he shall

have the opportunity to consult a licensed health care provider for diagnosis and treatment and, when medically indicated, to be seen by a physician for those purposes. Staffing of nurses for coverage of sick call shall assure continuous supervision of nursing functions by a registered nurse. Licensed medical personnel shall be available to respond to medical complaints on.;atwenty-four (24) hour basis. Routine referrals to a physician (i.e. those involving non-emergency matters) ordinarily may proceed on a schedule whereby the offender shall be seen by a physician within five (5) working days. However, referrals to physicians involving medical problems of a non-emergency nature must proceed on a time-schedule commensurate with the nature of the medical problem and the risk posed by the problem to the offender and/or others in the institution. Therefore, in those cases where it is medically indicated, non-emergency conditions shall be seen by a physician on a more expedited time schedule than five days.
6. Sick call shall be available to each offender housed in the segregation unit a minimum of four (4) days per week and shall follow the same procedures prescribed above. A room suitable for medical examinations shall be made available for that purpose.
7. Sick call shall be provided to offenders in the Psych Unit a minimum of four (4) days per week and shall follow the same procedures prescribed in paragraph five of this section. In the event the institution elects to have its psychiatrists conduct a sick call in the Unit, Westville's non-psychiatric physicians shall be available to consult with and, when necessary, to assist the psychiatrists.
10

8. Sick call shall be provided in the institution's chronic care unit a minimum of four (4) days per week and shall follow the same procedures prescribed in paragraph five of this section.
9. Physician's rounds shall be conducted in the institution's infirmary at least five (5) days a week.
10. A registered nurse shall staff Westville's Central Services Department five (5) days per week during the day shift (8:00 a.m. to 4:00 p.m.). Moreover, there shall be a registered nurse on the premises of the Westville Correctional Center twenty-four (24) hours per day, seven (7) days per week.
11. A chronic care unit for the housing and supervision of physically handicapped and chronically ill offenders whose conditions seriously restrict their ability to function adequately in the prison's general population shall be established by March 1, 1989. Appropriate physical therapy shall be made available to offenders housed in the unit as prescribed by attending physicians. There shall be no obligation for the Unit to be staffed by medical personnel. However, the Unit shall be monitored and supervised by the infirmary's licensed medical personnel. Medical care, sick call, the dispensing of medication, and meals shall routinely be provided on the Unit.
12. Any isolation rooms at Westville utilized for the housing of offenders with contagious diseases shall be equipped with a sink, a toilet, and a ventilation system to adequately vent air to the outside. Ventilation levels shall conform to the APHA Standards for Health Services in Correctional Institutions.
11

13. Oral physician orders that are recorded and implemented by nurses shall be reviewed and signed by a physician as soon as practicable, but in no event later than the close of the next business day.
14. All offenders 50 years of age and over shall be given comprehensive annual physical examinations and all other offenders shall receive comprehensive physical examinations and least every two years.
15. All individuals entering custody at Westville shall be medically screened by health-trained or qualified health care personnel upon arrival at the institution and the findings shall be recorded on a printed screening form. The screening process shall include the areas of inquiry and physical observations specified in the American Correction Association's Standards for Adult Correctional Institutions relative to medical, dental and psychological issues.
16. Each individual entering custody at Westville shall receive a thorough physical examination within fourteen (14) days of entrance unless his medical records reflect the fact that he has received such an examination within the past six months and the medical staff determines that there is no need to conduct an additional examination at that time.
17. A properly equipped crash cart shall be maintained in the institution's Central Services Department for use in medical emergencies.
18. The position of Special Attendant may be maintained on a limited basis in the prison's general population and on a more
12

expansive basis in the Psych Unit. However, after August 1, 1989, attendants shall not perform any functions which appropriately should be performed only by licensed medical personnel.
19. Vigorous recruitment efforts targeting the positions of registered nurse and licensed practical nurse shall be made and, in conjunction with those efforts, the tuition reimbursement program as set forth in Appendix C shall be implemented.
20. All health care staff shall be certified in CPR. A reasonable number of custody staff in each housing complex on each work shift shall be certified in CPR as well.
IV. General Conditions of Confinement 1. Offenders housed in the General Services Complex shall
have access to the gymnasium and/or outdoor recreation area (weather permitting) at least six (6) days per week. The implementation of this requirement shall not diminish the other recreational opportunities that are now available to offenders (e.g., weightlifting, arts and crafts, etc.) or the amount of access to the gymnasium now available offenders who are housed in the Educational and Industrial Complexes. An additional gymnasium for Westville Correctional Center shall be completed by July 1, 1990.
2. A sufficient number of operable smoke detectors and fire extinguishers shall be installed and maintained in appropriate locations throughout the institution, including the housing units, as determined by the Indiana State Fire Marshal.
3. An aggressive rodent extermination program shall be
13

maintained at the institution. 4. Appropriate measures shall be undertaken to assure that
Westville offenders when traveling in the underground tunnels are adequately protected from physical assault by other offenders.
5. In addition to the existing law library located in the General Service Complex, law libraries shall be established by July 1, 1989, in the Educational and by March 1, 1989, Industrial Complexes of the prison. All libraries at Westville shall be staffed by a sufficient number of trained law clerks to assist offenders in their legal research, shall include, at a minimum, the books identified in Appendix D, and shall be open a reasonable number of hours, five (5) days a week, to assure offenders a meaningful opportunity to conduct legal research.
6. An adequate training program shall be established by July 1, 1989 to train all clerks who are assigned to work in the institution's law libraries.
7. A dormitory shall continue to be available at Westville for the housing of handicapped and chronically ill offenders who are able to function adequately in the general population. The dormitory will be modified for the use of handicapped offenders and provide the maximum possible integration with the general population. Appropriate institutional programs and activities will be accessible to handicapped inmates housed in the dormitory. An offender will not be excluded from the work release program solely on the basis of handicap. Appropriate physical therapy shall be provided to offenders housed in the dormitory as prescribed by attending physicians.
14

8. All friable asbestos in the tunnel of the General Services Complex shall be abated no later than April 15, 1989, either by the removal or encapsulation of the Asbestos Containing Material. Offender traffic in the corridor shall be halted while work is in progress and shall not resume until the abatement has been accomplished.
9. All mechanical rooms at Westville that have Asbestos Containing Material in them shall by February 1, 1989, have notices prominently posted at their entrances warning of that fact and prohibiting the entry of offenders into those areas unless properly equipped or until all friable asbestos in that area has been properly abated through encapsulation or removal. Abatement in the mechanical rooms shall be completed by January 1, 1990.
10. All pipes known to have asbestos on them which are accessible to offenders shall have notices of the presence of the asbestos prominently posted on them as soon as practicable and in no event later than September 1, 1989.
11. An offender working in a mechanical room, the power plant, or on plumbing shall be informed on the dangers of working in close proximity to asbestos and shall not be required to work in the mechancial rooms, the power plant, or on plumbing, in close proximity to asbestos, unless he shall sign an acknowledgment that he has been informed and agrees to so work.
12. No offender shall be utilized to abate, repair, maintain, or clean up asbestos-containing materials unless he has been properly trained and is properly equipped for the procedure.
15

13. The asbestos-containing material in the power plant shall be abated by September 1, 1989.
14. Defendants shall prepare a comprehensive Operations and Management Plan (hereafter referred to as "0 Si M Plan") to address the existence of and problem associated with the presence of Asbestos Containing Materials in the institution. The plan shall be prepared by October 1, 1989. Among other things, it shall identify and describe all asbestos-related problems existing at the prison, shall specify what remedial action such as removal or encapsulation is necessary to address those problems, and shall provide time-tables for implementing each stage of the remedial program.
15. The 0 & M Plan, within fourteen (14) days of its preparation, shall be provided to the plaintiffs for their review and approval. If the plaintiffs express no objection to the plan, it shall be implemented according to its expressed time table. If, however, the plaintiffs do object to the plan within fifteen (15) days after receiving it, the parties shall have another twenty-one (21) days in which to attempt to resolve their differences through negotiation. If a resolution is not achieved, plaintiffs may present the matter to the Court for its resolution.
16. A minimum of six (6) members of the prison's maintenance department staff shall be trained and certified in the repair and abatement of minor asbestos-related problems and in the implementation of the 0 St M Plan.
17. Plaintiffs' counsel and their own expert(s) shall have the right to reasonably inspect, photograph, or otherwise monitor compliance with the terms of the asbestos abatement project and implementation of the 0 Sc M Plan.
16

V. Implementation and Other Provisions 1. The Court shall retain active jurisdiction and
supervision of this case for a period of at least two years from the time this agreement is entered as an order. At that time, the Court shall terminate supervision and transfer this case to its inactive docket unless the plaintiffs move for the continuation of jurisdiction and active supervision due to an alleged failure by defendants to fully implement and comply with the terms of this agreement. In that event, there shall be a hearing to determine whether or not jurisdiction and supervision shall continue. If the Court determines not to close the case, it shall retain jurisdiction until this agreement is fully implemented and compliance has been demonstrated by the defendants in all substantive areas. At such time, the defendants may move the Court to terminate its supervision and transfer this case to the inactive docket, subject to plaintiffs moving at a later time for reinstatement of this action based upon an alleged failure by defendants to maintain compliance with the terms of the decree and underlying agreement. However, prior to initiating any court action to revive the case, plaintiffs' counsel shall bring any allegations of non-compliance to the attention of the defendants' counsel so that the parties can first attempt in good faith to resolve all such disputes between themselves.

2. Defendants' counsel shall notify plaintiffs' counsel in

advance of any attempt to modify the court decree that implements

this agreement. The parties shall then attempt to resolve all

disputes concerning the proposed modification(s) before resort is

made to the court.

1

17

3. Beginning March 1, 1989, the defendants shall provide the Court and plaintiffs with written progress reports detailing the steps taken to comply with the respective provisions of this Agreed Entry. The reports shall be made every three (3) months thereafter until the court's jurisdiction over this case ends.
4. During the implementation phase of this case, plaintiff's counsel and their paralegals shall have reasonable access to documents, facilities, personnel and offenders of the prison in order to monitor first-hand the progress of implementation.
5. Defendants shall within two months of the date this agreement is approved by the Court explain the terms of this agreement to their agents, servants, representatives, and employees (professional staff, correctional officers and other personnel), in order to ensure their understanding of the requirements of this agreement and the necessity for strict compliance therewith. Defendants shall thereafter periodically review the terms of the agreement with the above persons.
6. By entering into this agreement, members of the plaintiffs' class are not waiving any right they might otherwise have to pursue individual claims for damages against defendants or Westville personnel. The only claims settled herein are those for injunctive relief of a general nature which are applicable to more than the individual circumstances of a particular class member.
7. The existing complaint in this action, which was drafted prior to the completion of discovery, does not raise a
18

number of issues that are addressed and resolved by this agreement. To avoid the necessity of again amending the complaint in order to reflect the full scope of this case, the complaint shall be deemed or treated as though it has been amended to cover all of the issues contained in the agreement.
8. The parties agree that nothing in this agreement precludes the defendants from relocating the Psych Unit or the Chronic Care Unit to another facility, from implementing new programs, or from making other operational changes that do not have an affect of diminishing or altering rights secured by this agreement.
9. The parties to this agreement shall promptly submit it to the court for its approval and entry of a consent decree.
10. The parties, shall attempt to negotiate a settlement on attorney's fees and costs. However, should the parties be unable to reach a settlement as to attorneys' fees and costs within 60 days of entry of the decree, the matter shall be submitted to the court for its determination; provided, however, that this time period may be extended by stipulation of the parties if approved by the Court.

Agreed to this

day of

Attorneys for Plaintiff class:

# ^y , 1989 Attorney for Defendants

Mark Lopez National Prison Project 1616P Street NW Suite 340
Washingtoni D.C. 20036

Linley E. Pearson Attorney Gener

ndiana

\
Davitfi A. Arthur Deputy Attorney General 219 State House Indianapolis, Indiana 46204

19

arence Albrecht Clinical Program Valparaiso University School of Law Valparaiso, Indiana 46383

J. Patrick Smith 205-207 First Nathional Bank Bldg. LaPorte, Indiana 46350

APPROVED AND ORDERED THIS

DAY OF

1989

Chief Judge, United States District Court

20

Procedures for the Use of Mechanical Restraints and Seclusion
The following procedures shall govern the use of mechanical restraints and seclusion in the Psychiatric Unit:
1. Mechanical restraints may only be used if an offender presents himself as an imminent threat of inflicting serious harm to himself or others by assaulting a person, engaging in significant destruction of property, attempting suicide, inflicting wounds upon himself, or displaying other signs of imminent violence.
2. Mechanical restraints may only be used at the direction /
of a psychiatrist or other physician. Although approval for the imposition of mechanical restraints may initially be obtained by telephone—when no psychiatrist or other physician is available to personally evaluate the offender before their imposition--a psychiatrist or physician must personally evalute the offender within twenty-four (24) hours of the imposition and approve of their use in writing or the offender shall be released from all restraints,
3. All renewal orders approving the continued use of restraints, with the exception of weekends and holidays, must be preceded by & personnel evaluation by a psychiatrist or other physician. Unless the examining psychiatrist or physician determines within twenty-four (24) hours of the last order that
APPENDIX A

the offender continues to meet the criteria set forth in paragraph one of this appendix for the use of restraints and expresses that determination through a written renewal order, the offender must immediately be released from all restraints. However, on weekends, a renewal order based upon a personal evaluation may occur either on a Saturday or a Sunday and need not occur on both days. A telephone approval must occur, however, if the restraints are to be continued on the day no personal evaluation occurs. Telephone approval will suffice on holidays as well.
4. The reason or reasons the psychiatrist or other physician determines that restraints are necessary in each case shall be factually documented in writing each time the determination is made. This information shall be made part of a record which shall include the restrained offender's name and DOC number, a brief description of the incident(s), event(s) or behavior that precipitated the restraint, the reason for the application of restraints, the name of the staff member who assisted in the application of restraints, the specific type of restraints that were applied, the number of limbs restrained, the date and time the psychiatrist or medical doctor authorized the application or continuation of restraints, and an indication as to whether the authorization was made after a personal evaluation or by telephone, and the date and time the offender was released from restraints. This report shall be made a part of the offender's medical packet, and a copy shall be sent to the

Assistant Superintendent of Programs. 5. In addition to the above documentation, a central record
such as daily log book shall be maintained listing the names of all offenders who are in restraints on each shift.
6. All offenders who are in mechanical restraints shall be observed by personnel at least every fifteen (15) minutes and each observation shall be documented in writing by noting in a log book the time the rounds occurred.
7. Soft mechanical restraints shall be used at all times unless it is determined by the person in charge of the Unit that soft restraints will not provide the necessary degree of security. In that case, the reasons for the determination shall be fully documented in writing.
8. Mechanical restraints shall be utilized in a particular case only if they are the least restrictive way to achieve the necessary degree of protection or security.
9. The least restrictive number of limbs consistent with adequate security shall be restrained. That is, when three-way restraints would suffice, four limbs shall not be restrained and so forth. Mechanical restraints shall be lessened and completely removed at the direction of a psychiatrist or to the physician earliest opportunity the offender's behavior and condition permit.
10. An offender who is mechanically restrained shall be released to perform necessary bodily functions at least every four (4) hours, unless he is sleeping or release is

contraindicated as determined by the medical staff. Restrained offenders, except during the evening shift (between approximately 11:00 p.m. and 7:00 a.m.) shall be allowed use to a bathroom for bowel movements unless allowing them to do so is contraindicated. During the evening shift, a lessening of restraints shall be sufficient for purposes of bowel movements.
11. Mechanical restraints shall never be used as method of punishment or for administrative convenience.
12. Mechanical restraints shall not be applied around the neck or head of the offender or in a way that causes unnecessary pain or discomfort or restricts the offender's blood circulation or breathing.
13. No offender shall be mechanically restrained without proper clothing or bedding except when it is necessary to prevent injury. In the absence of such necessity, an offender in restraints shall be permitted to wear the same articles of clothing that non-restrained offenders are permitted to wear and to have the same bedding.
14. No offender shall be mechancically restrained in a seclusion room except by an order of a psychiatrist or physician who determines in accordance with the standard articulated in paragraph one that restraint is necessary.
15. The procedures prescribed above--relating to authorization, documentation, observation and release— shall apply with equal force to assignments to seclusion rooms without restraints except in those contexts identified below in paragraph

sixteen (e.g. a request by the offender and disciplinary segregation).
16. These procedures do not apply to the use of mechanical restraints to transport an offender within or outside the Westville Correctional Center, to situations where the patient is confined in a seclusion room at his own request (without mechanical restraints) or where a patient is housed in a seclusion room on disciplinary custody status (without mechanical restraints) pursuant to the Adult Authority Disciplinary Policy of the Department of Correction. However, such patients shall still be observed every fifteen (15) minutes in accordance with paragraph six and, in the case of a disciplinary confinement, shall periodically be observed by a psychiatrist to monitor their conditions.

Procedures Governing Involuntary Mental Health Transfers
I. The Standard A patient may involuntarily be transferred to the Psychiatric
Unit at Westville, to any other mental health facility of the Department of Correction or to a facility operated by the State Department of Mental Health if he is mentally ill under applicable state law, is in need of psychiatric treatment, and either poses a danger to himself or to other persons or is gravely disabled.
II. The Procedures A. An offender who is believed to be in need of care and
treatment in a mental health facility shall be referred to a psychiatrist for examination.
B. If, under the standard articulated above, the examining psychiatrist concludes that a mental health transfer is appropriate, he shall submit a signed written report to the administration of the facility in which the offender is confined containing a summary of the offender's psychiatric history, his impressions of the offender's condition and symptoms, his diagnosis, and his recommendation with respect to a transfer.
APPENDIX B

C. If transfer to a mental health facility is recommended, a hearing shall be conducted prior to the offender's removal from his place of confinement unless the offender's condition is perceived by the psychiatrist to require an emergency removal to a mental health facility—in which case the hearing may follow the actual removal in accordance with the timetable specified in Section E of this appendix.
D. Non-Emergency Transfers 1. In this category of cases, the offender shall be afforded an opportunity to have a hearing prior to being transferred to a mental health facility. The hearing shall be convened before an impartial hearing officer no sooner than ten (10) days but no later than fourteen (14) days after the psychiatrist's recommendation of a transfer unless the offender elects to waive his right to a hearing. Any waiver must be signed in the presence of an attesting witness. 2. At the hearing, the offender has the right to appear in person, to speak in his own behalf, to call witnesses, to present documentary evidence, to confront and cross-examine witnesses (provided he requests the opportuntity to do so in advance of the hearing), and to be represented by counsel at his own expense or to have a competent and independent person assigned without cost to represent him at the hearing (who shall not be another offender unless the offender so requests). A written form for requesting representation shall be provided by

the Department of Correction. There shall be a place on the form for the offender either to request or waive representation which shall be witnessed at the time of its execution. The superintendent at each institution shall designate a permanent group of competent persons from which the institutional representatives are to be selected in a given case. The group shall include only counselors, behavioral clinicians and other treatment personnel who shall receive adequate substantive and procedural training to prepare them for the handling of such cases. Institutional representatives shall be assigned to cases in a timely manner.
3. The offender shall be given at least ten (10) days advance written and oral notice of the hearing. The notice shall specify: (a) the date, time and place of the hearing; (b) state the reason(s) for the contemplated transfer including a statement of the facts that constitute the basis for the referral; (c) inform the offender of his right to request a hearing or to waive it in writing should be choose to do so; and (d) inform him of each of the prodedural right identified in the preceding paragraph.
4. A copy of the psychiatrist's report shall be furnished to the offender at the time he is presented the notice of the hearing if the offender wishes to receive a copy.
5. At the request of the offender, all Department of Correction personnel who have prepared documentation for submission at the hearing shall be present for cross-examination absent a finding of good cause for their absence. Failure of the

preparer to be present shall result in the exclusion of the document from evidence.
6. After the hearing, the hearing officer shall prepare a written statement containing his recommendations as to transfer, findings of fact, the evidence relied upon and the reason(s) for his recommendations. The offender shall be given a copy of the statement within three working days after the conclusion of the hearing.
7. The recommendation shall immediately be forwarded by the facility where the hearing was conducted to the Director of Offender Placement Services for the Department of Correction who shall within seven (7) days from the date of the recommendation render a decision as to whether the transfer is warranted under the standard for such transfers.
8. A finding that an offender is mentally ill and either dangerous or gravely disabled must be based on clear and convincing evidence.
E. Emergency Transfers 1. When an offender is transferred on an emergency basis to a mental health facility he shall be entitled to all of the procedural safeguards set forth in Section D for non-emergency situations. However, in the case of an emergency, the physical removal of an offender to a mental health faciltity or Psych Unit may precede a hearing. 2. In addition to the general procedural requirements, the following procedural requirements

also apply to emergency transfers. a) Following an emergency transfer to the Psych Unit or
other mental health facility, the offender shall be examined by a psychiatrist at the facility within three working days of the transfer.
b) If a determination is made that there is no basis for involuntary psychiatric treatment under the standard expressed in Section A of this appendix, the offender shall be released from the Unit or facility within a reasonable period of time not to exceed five (5) working days.
c) If, however, a determination is made that treatment is appropriate under the standard expressed in Section A of this appendix, a post-transfer hearing under the procedure described above shall be held within ten (10) working days of the examination, unless the offender waives his right to a hearing.
F. Voluntary Transfers 1. This agreement does not preclude an offender from voluntarily initiating a transfer to a mental health facility. 2. In cases of voluntary transfers, the hearing procedure prescribed above does not apply. 3. An offender who believes himself to be mentally ill and in need of care and treatment in the Psych Unit or other mental health facility may submit a written request for a transfer. 4. In that event, the offender shall be referred to a

psychiatrist for an examination to determine whether he is mentally ill and in need of treatment.
G. Periodic Review Procedures 1. Each offender who is involuntarily confined in
the Psych Unit or other mental health facility shall be reviewed every six (6) months to determine whether he continues to meet the standard articulated in Section A for involuntary confinement in a mental health unit. Upon admission to the psych unit, each offender shall be informed of his right to periodic review and the procedure for such review.
2. A written report shall be prepared at the conclusion of the review by the psychiatric staff which shall recommend whether or not to continue treatment in the facility. The report shall contain a psyciatric history, a summary of the offender's progress and behavior during the previous six months and a clinical diagnosis.
3. If the recommendation is to continue treatment, the offender shall be entitled, if he chooses, to have the determination reviewed within fourteen (14) days by a panel composed of two members of the psychiatric staff (including the psychiatrists who made the recommendation) and an independent psychiatrist or clinical psychologist who shall conduct a personal evaluation of the offender, review the offender's clinical records, and afford the offender an opportuinty to explain why he believes he no longer is in need of treatment in the Psych Unit or other mental health facility. The panel shall issue a written decision within ten (10)
6

days as to whether the offender continues to meet the standard articulated in Section A for involuntary confinement in a mental health unit, specifying the reason(s) for its decision. A decision to continue treatment in the Unit shall require only the concurrence of two of the three panel members.

INDIANA DEPARTMENT OF CORRECTION

*''-i St..ie-
Z^

TO: FROM:
DATE: SUBJECT:

David P. Patterson, Director Public Safety and Conservation
John T. Commissil
August 2, 3.9 88
Request for Authorization to Initiate Tuition Reimbursement Program

For some time, this department as well as other state agencies which utilize nurses have had an extremely difficult time in the recruitment and retention of nursing staff at various state mental health and correctional institutions. It appears that this department, because of the nature of its mission, has even a greater difficulty in recruiting and retaining qualified nursing staff to meet necessary standards of healthcare services to confined offenders. This particular situation has been brought about by numerous circumstances, most notibly the nursing shortage throughout the United States. Throughout the country, private and not-for-profit hospitals have experienced an intense competition to attract and retain qualified nurses. The competition has become so extreme that numerous bonuses, incentives and fringe benefits have been given to applicants to insure their employment at a particular hospital.

In the various discussions which have occurred in the last several months, it has become obvious that this department is ill equiped to compete with the recruitment and retention of nursing staff when considering the inducments offered by private and public hospitals. The State Budget Agency as well as the State Personnel Department and the Governor's Office have been extremely helpful in recognizing this need and have approved salary and recruitment differential plans to attract nursing staff. As is well documented, these efforts, though made in good faith and in the right direction, have fallen short to hire staff necessary to insure the standard of quality healthcare services which this department must provide to the confined offender. The situation is further compounded by the fact that in the absence of the individual recruitment and retention of nurses, it has become necessary to contract with registries and/or nursing corporations to insure adequate nursing coverage. This has proven to be a fiscal catastrophe, in that these contracts typically are two and three times more expensive than the employment of nurses on regular manning table positions.

HODSIEIt
(XUBKIKWH!

APPENDIX C

An Equal Opporruniry Employer

David P. Patters---' August 2, 1988 Page 2
In a continuing effort for this department to recruit and retain nurses, it has been suggested that a tuition reimbursement program be established to attract and retain LPNs and RNs in this department. Authorization is therefore requested from the State Budget Agency to initiate such a tuition reimbursement program initially limited to LPNs and RNs. Though it would be desirable to extend this tuition reimbursement program to all staff of all classifications, the nursing shortage has created the biggest crisis which must be addressed immediately. If authorization is approved, a tuition reimbursement program pilot project, would be initiated at the Indiana State Prison, Westville Correctional Center, Indiana Reformatory, Indiana State Farm, Indiana Women's Prison, Indiana Youth Center, and the Branchville Training Center as each institution could identify available funds from within existing "other operating" appropriations. Such a tuition reimbursement program would include minimally the following criteria:
• The recipient must be an LPN currently employed by the department who wishes to enroll in classes which would qualify the person as a registered nurse.
• Any employee of the department would be eligible for tuition reimbursement if that person in addition to working a regular shift was enrolled and passed appropriate course work to complete an LPN or RN degree.
• A commitment of minimally one year would be expected from an employee to satisfy the tuition reimbursement award.
• That any tuition reimbursement award would be made in arrears after successful completion of the course.
It has been determined that the typical LPN course requires seventy-four (74) quarter hours of course work at an average cost of $2200.00 for the completion of the LPN degree. The average course work for an RN license involves a minimum of sixty-five (65) hours of course work at $61.45 per credit hour, or approximately $4,000.00 for completion of the RN degree. Neither costs involve books, or other incidental fees. I would

August 2, 1988 Page 3
be more than happy to personally discuss this matter with any representatives of the State Budget Agency at your convenience. Your favorable review and approval of this request would be appreciated.
JMH:gb attachment
cc: James E. McCart Cloid L. Shuler Thomas D. Hanlon Norman G. Owens John L. Nunn Walter E. Martin Michael C. Cross Esther Furbee

Contents of Educational/Industrial Complexes Law Libraries
1. Indiana Code (statutes related to criminal law, habeas corpus, the state consitution, family law, and state rules of criminal and civil procedure).
2. Indiana Cases or Northeastern Reports (1960 - present)
3. Indiana Digest 4. United States Code Annotated
Title 18 Title 28 §2241-2254 Title 28 Rules of Appellate Procedure Title 28 Rules of Civil Procedure Title 42 §1891-2010 5. Supreme Court Reporter (1960 - present) 6. Federal Supplement (1960 - present) Federal 2d (1960 - present) 7. Black's Law Dictionary 8. Sokol: Federal Habeas Corpus 9. LaFave and Scott: Criminal Law Hornbook (2 copies) 10. Cohen: Legal Research 11. Shepards (for Federal and State Reporters) 12. Palmer: Consitutional Rights of Prisoners 13. Federal Practice Digest 3rd 14. Patients and the Law (ed. by Ira Robbins) Clark Boardman Sc Co. 1985 15. Manville and Boston: Prisoners' Self-Help Litigation Manual (Oceana Publications) (2 copies) 16. Cohen 8c Gobert: Rights of Prisoners (Shepards/McGraw Hill)
APPENDIX D

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

ROGER W. ANDERSON, et al. , Plaintiffs,
v. ROBERT ORR, et al.,
Defendants.

CIVIL ACTION No. S83-0481

ORDER

AND NOW, this ^ 2 3 day of

, 1989, upon consideration

of plaintiffs1 Motion to Approve and Enter Consent Decree, it is

hereby ordered that the attached Notice of the Proposed

Settlement shall issue in the manner agreed to by the parties and

as specified in the Motion which is the subject of this Order.

It is further ordered that the time for filing objections to the

proposed settlement with the Court will end February 10, 1989,

and that the Court will convene a hearing to consider those

objections on rVlfac*^ \ , 1989.

United States District Judge

cc: Smith Albrecht/Beatty/Fila/Voor Dawson Krakoff/Lopez Dabrowski/Arthur

Anderson v. Bayh

•

V

••

•••<••*

v

H

PC- N-002-005

 
 Final
AO 450 (R»v 5/85) Judgment in a Civil Cat*

NORTHERN

States district Court

DISTRICT OF

INDIANA

ROGER W. ANDERSON, J R . , e t a l V.

FINAL
JUDGMENT IN A CIVIL CASE

G. MICHAEL BROGLIN, et al

CASE NUMBER: S 8 3 - 4 8 1

•

Jury Verdict. This action came before the Court for a trial by jury. its verdict.

The issues have been tried and the jury has rendered

and a
IT IS ORDERED AND AOJUDGED BY CHIEF JUDGE ALLEN SHARP
that the Consent Decree shall be entered as the final judgment of this court.

Anderson v. Bayh

April 4. 1989
Date

RICHARD E. TIMMONS
Clerk

(Gvl Da

m9

V

/

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OP INDIANA
SOUTH BEND DIVISION

ROGER W. ANDERSON, JR., on )

his own behalf and o/b/o all )

prisoners who are, or may be )

in the future, confined at )

the W.C.C., Westville, IN, in )

the custody of the Indiana )

DOC,

)

Plaintiffs,

)

vs.

)

G. MICHAEL BROGLIN,

)

Superintendent; ROBERT ORR, }

individually and in his

)

official capacity as

)

GOVERNOR of the State of

)

Indiana; GORDON H. FAULKNER, )

individually and in his

)

official capacity as

)

Commissioner of the Indiana )

Department of Correction,

)

Defendants.

)

CIVIL NO. S83-481

ORDER

This Court held a hearing on March 28, 1989, in order to hear oral argument on the proposed Consent Decree filed with this Court on January 13, 1989. In accordance with the notice requirements of Rule 23(e) of the Federal Rules of Civil Procedure, a Notice of Proposed Settlement was sent to individual class representatives in conjunction with the posting of said notice in conspicuous locations at the Westville Correctional Center. All objections to the proposed Consent Decree have been reviewed by this

Court. Haying heard oral argument on the proposed Consent Decree and the objections, it is hereby ORDERED by this Court that the proposed Consent Decree be and is hereby APPROVED. The Consent Decree shall be entered as the final judgment of this Court. I T IS SO ORDERED.
Dated this % j d a y of March/
Allen Sharp, Chief Judge United States District Court
cc: Smith Albrecht/Beatty/Fila/VocKrakoff/Lopez Dabrowski/Arthur Order Book

RECEIVED

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

«n ^ A
JAN 13 1989

SOUTH BEND DIVISION

-A

ROGER W. ANDERSON, et al.,

HCMAIO f.TIMMONS.CLEMC US. WSTMCT COMT
NORTHMN WSTtlCT Of 1NWANA

Plaintiffs,

CIVIL ACTION

v.

No. S83-0481

ROBERT ORR, et al.,

Defendants.

AGREED ENTRY

This class action, brought on behalf of all present and

future offenders of the Westville Correctional Center, alleges that

certain conditions and practices at the institution violate the

United States Constitution. Although the defendants categorically

deny that allegation, they believe it will be in the best interest

of the residents of Indiana--including members of the plaintiff

class—for there to be an expeditious, orderly, and comprehensive

settlement of this case without the necessity of a trial. The

plaintiffs share this belief. As a consequence, the parties now

agree to forego a trial on the merits and to bring this litigation

to a conclusion by submitting this Agreed Entry to the court for its

review and ultimate approval.

With the full and informed consent of the parties, in order

to resolve all claims asserted in this case, but without any

acknowledgment or finding of liability or other determination on

the merits, it is agreed that the defendants, their officers, agents, agencies, employees, subordinates, successors in office, and all those acting in concert or participation with them shall be bound by and comply with the following provisions:
I. Westville Psychiatric Unit Provisions 1. The psychiatric unit (hereafter referred to as the
"Psych Unit") shall be expanded by July 1, 1989 to provide each offender housed in it a minimum of fifty (50) square feet of dormitory space and thirty-two (32) square feet of dayroom space.
2. The practice of using dayroom space in the Psych Unit as a sleeping/observation area shall end upon completion of the expansion project referred to above. Thereafter, a section of the Unit dormitory shall be designated as a special observation area for the housing of suicide-prone and other patients who require particularly close observation.
3. Procedures consistent with those set forth in Appendix A shall govern the use of mechanical restraints and seclusion rooms in the Psych Unit.
4. The practice of housing mechanically restrained patients along the hallway of the Psych Unit shall cease after July 1, 1989.
5. A routine regimen of daily exercise shall be provided to patients who are in restraints or seclusion for more than 48 hours, unless a psychiatrist, psychologist, or physician determines that such exercise is contraindicated for a given patient. A minimum

of 45 minutes per day of exercise shall be made available unless medically contraindicated. After being in restraints seven (7) consecutive days--during the non-winter months--the exercise shall be held outdoors at least two days as week, weather permitting, unless a psychiatrist, psychologist or physician concludes that outdoor exercise is contraindicated for a given patient. The reasons a patient has not been provided exercise on a given day shall be documented in his psychiatric record. Patients in mechanical restraints shall be given the opportunity to shower and shave at least five days a week unless one of the above personnel concludes that doing so is contraindicated. If conditions permit, patients in mechanical restraints should be permitted to shower daily.
6. The Department of Correction shall modify its procedures for effecting mental health transfers to conform with the procedures set forth in Appendix B of this agreement.
7. Outdoor recreation shall be available to Psych Unit offenders during the non-winter months. A schedule shall be established and implemented by January 1, 1989, providing for reasonable periods of outdoor and indoor exercise five days a week on an alternating basis. The indoor exercise shall take place in a gymnasium or a functionally equivalent area of the prison. In the event of inclement weather, recreation shall be provided in the designated indoor recreation area, with outdoor recreation available the next week day weather permits. During the winter months, there shall be a reasonable amount of indoor exercise five (5) days a week.
3

8. Access to the institution infirmary shall be available to Psych Unit patients when deemed medically appropriate and upon orders of the attending physician.
9. Prison administrators shall undertake a ventilation assessment of the entire Psych Unit, and by September, 1989, shall increase ventilation in the seclusion rooms and in all other housing and dayroom areas of the Psych Unit to the levels specified in the American Public Health Association's Standards for Health Services in Correctional Institutions.
10. The following additional full-time equivalent personnel shall be employed at the prison to provide professional services in the Psych Unit:
a. One and one-half psychiatrists. b. One Ph.D. psychologist. c. Six Registered Nurses d. Six Licensed Practical Nurses. e. Five attendants. f. One Medical Records Administrator and one
clerk-typist. At least one-half of each of the above full-time equivalent personnel shall be employed by March 1, 1989 and the remainder by August 1, 1989.
11. Consistent with the above increases in staffing, there shall be a total of two and one-half psychiatrists, two Ph.D. psychologists, five psychiatric social workers, 12 RN's, 12 LPN's, 48 attendants, one medical records administrator and one clerk-typist employed on a full-time equivalent basis in the Psych Unit beginning August 1, 1989 and thereafter. In the event the patient population of the Unit should increase to more than 200, sufficient additional personnel in each of the above disciplines
4

shall be employed to ensure that an equivalent staff/patient ratio is maintained for each discipline. This ratio shall thereafter be maintained by making equivalent corresponding staff adjustments as the patient population increases.
12. All full-time employees employed in the Psych Unit shall be adequately trained in the care and handling of psychiatric patients. A training program shall be established by March 1, 1989, for that purpose.
13. No anti-psychotic medication may be forced upon an offender against his wishes except in an emergency and, then, only upon orders of a psychiatrist or physician after an individual determination by the psychiatrist or physician that:
a. The offender in question is mentally ill as defined by applicable state law;
b. administration of the medication is necessary to prevent serious risk of injury to the offender, to other offenders, or staff; and
c. in the professional judgment of the psychiatrist or physician, the probable benefit to the offender from receiving the medication outweighs the risk of harm to, and the personal concerns of, the offender.
No offender shall be force medicated for more than twenty-four (24) hours without being personally evaluated by a psychiatrist or physician; however this limitation shall not apply to an offender who is under the continuing care of a psychiatrist at Westville Correctional Center and is currently on a regimen of anti-psychotic medication.
5

14. In the event anti-psychotic medication is forced upon an offender for a period of more than five (5) consecutive days, the Psych Unit shall submit the plan to a consulting psychiatrist for his consideration and determination as to whether it is appropriate under the above standard to continue the involuntary administration of the medication. The Unit personnel shall abide by that psychiatrist's determination which shall be based, in part, on a review of records and a personal evaluation of the offender in question. The forced administration of anti-psychotic medication may not exceed of eight (8) days in the absence of the approval of the consulting psychiatrist. The approval of forced medication by the consulting psychiatrist shall remain in effect until the next semi-annual review of the offender's treatment program. Upon admission to the Psych Unit, an offender shall be informed of this procedure.
15. The consulting psychiatrist shall be selected from a list of qualified psychiatrists with institutional experience prepared by the Indiana District Branch of the American Psychiatric Association and may not have been employed by the Westville Correctional Center within the two years immediately preceding the selection. In the event none of the psychiatrists whose names appear on the list are willing to function as a consultant, the Department may retain the services of another psychiatrist to act as a consultant subject to the prior approval of plaintiffs' counsel.
16. A separate written log or other central record of all instances of forced medication shall be maintained. It shall list the names and institutional numbers of the offenders who refused medication, the date of each occurrence, the psychiatrist who
6

m
ordered the medication to be administered and a summary of the reason(s) for administering the drug.
17. Psychiatrists shall conduct medication reviews at least once a month for each Psych Unit patient which shall include a personal evaluation of the patient. A summary of the findings shall be written in the patient's chart.
18. Adequate space shall be provided for group and individual therapy by July 1, 1989.
19. . Offenders who have been approved by the Psych Unit staff for discharge from the Unit shall be transferred to a living area off the Unit within ten (10) days after the approval has been made.
20. Modifications shall be made by July 1, 1989 in the • toilet facilities of Five Dorm of the Psych Unit to create a reasonable degree of privacy for the patients.
21. Sufficient seating accommodations shall be provided in the dayroom areas of the Psych Unit for the patients.
II. General Population Psychiatric Provisions 1. A full-time psychiatrist shall be employed at Westville
to provide psychiatric services for general population offenders (as well as offenders housed in the institution's segregation unit). At least one half of this full-time equivalent position shall be obtained by March 1, 1989 and the remainder by August 1, 1989. This position shall replace the part-time psychiatrist position that currently exists for those areas of the institution.
7

2. An additional full-time Ph.D. psychologist shall be employed at Westville to provide psychological services for general population and segregation offenders. At least one-half of this full-time equivalent position shall be obtained by March I; 1989 with the remainder obtained by August 1, 1989. With this addition, the institution shall employ a total of two full-time equivalent psychologists for the general prison population.
3. An additional behavioral clinician or psychiatric social worker shall be employed at Westville to provide counseling services for general population and segregation offender by January 1, 1989. With this addition, the institution shall employ a total of four behavioral clinicians or the equivalent.
III. Medical Care Provisions 1. There shall be a minimum of four (4) full-time licensed
physicians employed at Westville no later than August 1, 1989. 2. The physicians employed at Westville shall be
reasonably conversant in English so that they will be able to adequately communicate with offenders, staff, and outside medical consultants.
3. One of the staff physicians shall be designated as the medical director of the institution. The medical director shall:
a. have input into budgetary decisions; b. have input into medical-related staffing decisions; c. be the final authority on health-related matters;
8

I »
d. be responsible for the establishing a medical reference library; and,
e. be responsible for developing and implementing by October 1, 1989, comprehensive written medical policies, procedures and practices for the delivery of medical care at the institution. These policies, procedures and practices shall relate to, among other things, triage and other aspects of the institution's sick call system; emergency health care; medical record-keeping; follow-up after outpatient consultations with medical specialists and outside medical facilities (including a system for screening offenders returning from consultations or hospitalizations, where medically appropriate, and the* timely recording of reports or instructions received from those sources); the establishment of . death and quality assurance committees; a system to monitor medications for offenders who have serious communicable and chronic diseases; special diets; prescribing medication; radiology; admissions to and the operation of the in-patient infirmary and chronic care units; specialty clinic referrals; sexually transmitted diseases; and tuberculosis testing and treatment.
4. Two full-time clerks assigned to medical records shall be employed at Westville by September 1, 1989 to work in the medical department.
5. A sick call system shall be developed and implemented at Westville by August 1, 1989, whereby each offender in general population shall have access to sick call at least four (4) days per week. When an offender signs up for sick call, he shall

have the opportunity to consult a licensed health care provider for diagnosis and treatment and, when medically indicated, to be seen by a physician for those purposes. Staffing of nurses for coverage of sick call shall assure continuous supervision of nursing functions by a registered nurse. Licensed medical personnel shall be available to respond to medical complaints on J\. twenty-four (24) hour basis. Routine referrals to a physician (i.e. those involving non-emergency matters) ordinarily may proceed on a schedule whereby the offender shall be seen by a physician within five (5) working days. However, referrals to physicians involving medical problems of a non-emergency nature must proceed on a time-schedule commensurate with the nature of the medical problem and the risk posed by the problem to the offender and/or others in the institution. Therefore, in those cases where it is medically indicated, non-emergency conditions shall be seen by a physician on a more expedited time schedule than five days.
6. Sick call shall be available to each offender housed in the segregation unit a minimum of four (4) days per week and shall follow the same procedures prescribed above. A room suitable for medical examinations shall be made available for that purpose.
7. Sick call shall be provided to offenders in the Psych Unit a minimum of four (4) days per week and shall follow the same procedures prescribed in paragraph five of this section. In the event the institution elects to have its psychiatrists conduct a sick call in the Unit, Westville's non-psychiatric physicians shall be available to consult with and, when necessary, to assist the psychiatrists.
10

8. Sick call shall be provided in the institution's chronic care unit a minimum of four (4) days per week and shall follow the same procedures prescribed in paragraph five of this section.
9. Physician's rounds shall be conducted in the institution's infirmary at least five (5) days a week.
10. A registered nurse shall staff Westville's Central Services Department five (5) days per week during the day shift (8:00 a.m. to 4:00 p.m.). Moreover, there shall be a registered nurse on the premises of the Westville Correctional Center twenty-four (24) hours per day, seven (7) days per week.
11. A chronic care unit for the housing and supervision of physically handicapped and chronically ill offenders whose conditions seriously restrict their, ability to function adequately in the prison's general population shall be established by March 1, 1989. Appropriate physical therapy shall be made available to offenders housed in the unit as prescribed by attending physicians. There shall be no obligation for the Unit to be staffed by medical personnel. However, the Unit shall be monitored and supervised by the infirmary's licensed medical personnel. Medical care, sick call, the dispensing of medication, and meals shall routinely be provided on the Unit.
12. Any isolation rooms at Westville utilized for the housing of offenders with contagious diseases shall be equipped with a sink, a toilet, and a ventilation system to adequately ve'nt air to the outside. Ventilation levels shall conform to the APHA Standards for Health Services in Correctional Institutions.
11

13. Oral physician orders that are recorded and implemented by nurses shall be reviewed and signed by a physician as soon as practicable, but in no event later than the close of the next business day.
14. All offenders 50 years of age and over shall be given comprehensive annual physical examinations and all other offenders shall receive comprehensive physical examinations and least every two years.
15. All individuals entering custody at Westville shall be medically screened by health-trained or qualified health care personnel upon arrival at the institution and the findings shall be recorded on a printed screening form. The screening process shall include the areas of inquiry and physical observations specified in the American Correction Association's Standards for Adult Correctional Institutions relative to medical, dental and psychological issues.
16. Each individual entering custody at Westville shall receive a thorough physical examination within fourteen (14) days of entrance unless his medical records reflect the fact that he has received such an examination within the past six months and the medical staff determines that there is no need to conduct an additional examination at that time.
17. A properly equipped crash cart shall be maintained in the institution's Central Services Department for use in medical emergencies.
18. The position of Special Attendant may be maintained on a limited basis in the prison's general population and on a more
12

expansive basis in the Psych Unit. However, after August 1, 1989, attendants shall not perform any functions which appropriately should be performed only by licensed medical personnel.
19. Vigorous recruitment efforts targeting the positions of registered nurse and licensed practical nurse shall be made and, in conjunction with those efforts, the tuition reimbursement program as set forth in Appendix C shall be implemented.
20. All health care staff shall be certified in CPR. A reasonable number of custody staff in each housing complex on each work shift shall be certified in CPR as well.
IV. General Conditions of Confinement 1. Offenders housed in the General Services Complex shall
have access to the gymnasium and/or outdoor recreation area (weather permitting) at least six (6) days per week. The implementation of this requirement shall not diminish the other recreational opportunities that are now available to offenders (fc.g., weightlifting, arts and crafts, etc.) or the amount of access to the gymnasium now available offenders who are housed in the Educational and Industrial Complexes. An additional gymnasium for Westville Correctional Center shall be completed by July 1, 1990.
2. A sufficient number of operable smoke detectors and fire extinguishers shall be installed and maintained in appropriate locations throughout the institution, including the housing units, as determined by the Indiana State Fire Marshal.
3. An aggressive rodent extermination program shall be
13

maintained at the institution. 4. Appropriate measures shall be undertaken to assure that
Westville offenders when traveling in the underground tunnels are adequately protected from physical assault by other offenders.
5. In addition to the existing law library located in the General Service Complex, law libraries shall be established by July 1, 1989, in the Educational and by March 1, 1989, Industrial Complexes of the prison. All libraries at Westville shall be staffed by a sufficient number of trained law clerks to assist offenders in their legal research, shall include, at a minimum, the books identified in Appendix D, and shall be open a reasonable number of hours, five (5) days-a week, to assure offenders a meaningful opportunity to conduct legal research.
6. An adequate training program shall be established by July 1, 1989 to train all clerks who are assigned to work in the institution's law libraries.
7. A dormitory shall continue to be available at Westville for the housing of handicapped and chronically ill offenders who are able to function adequately in the general population. The dormitory will be modified for the use of handicapped offenders and provide the maximum possible integration with the general population. Appropriate institutional programs and activities will be accessible to handicapped inmates housed in the dormitory. An offender will not be excluded from the work release program solely on the basis of handicap. Appropriate physical therapy shall be provided to offenders housed in the dormitory as prescribed by attending physicians.
14

8. All friable asbestos in the tunnel of the General Services Complex shall be abated no later than April 15, 1989, either by the removal or encapsulation of the Asbestos Containing Material. Offender traffic in the corridor shall be halted while work is in progress and shall not resume until the abatement has been accomplished.
9. All mechanical rooms at Westville that have Asbestos Containing Material in them shall by February 1, 1989, have notices prominently posted at their entrances warning of that fact and prohibiting the entry of offenders into those areas unless properly equipped or until all friable asbestos in that area has been properly abated through encapsulation or removal. Abatement in the mechanical rooms shall be completed by January 1, 1990.
10. All pipes known to have asbestos on them which are accessible to offenders shall have notices of the presence of the asbestos prominently posted on them as soon as practicable and in no event later than September 1, 1989.
11. An offender working in a mechanical room, the power plant, or on plumbing shall be informed on the dangers of working in close proximity to asbestos and shall not be required to work in the mechancial rooms, the power plant, or on plumbing, in close proximity to asbestos, unless he shall sign an acknowledgment that he has been informed and agrees to so work.
12. No offender shall be utilized to abate, repair, maintain, or clean up asbestos-containing materials unless he has been properly trained and is properly equipped for the procedure.
15

13. The asbestos-containing material in the power plant shall be abated by September 1, 1989.
14. Defendants shall prepare a comprehensive Operations and Management Plan (hereafter referred to as "0 8c M Plan") to address the existence of and problem associated with the presence of Asbestos Containing Materials in the institution. The plan shall be prepared by October 1, 1989. Among other things, it shall identify and describe all asbestos-related problems existing at the prison, shall specify what remedial action such as removal or encapsulation is necessary to address those problems, and shall provide time-tables for implementing each stage of the remedial program.
15. The 0 S» M Plan, within fourteen (14) days of its preparation, shall be provided to the plaintiffs for their review and approval. If the plaintiffs express no objection to the plan, it shall be implemented according to its expressed time table. If, however, the plaintiffs do object to the plan within fifteen (15) days after receiving it, the parties shall have another twenty-one (21) days in which to attempt to resolve their differences through negotiation. If a resolution is not achieved, plaintiffs may present the matter to the Court for its resolution.
16. A minimum of six (6) members of the prison's maintenance department staff shall be trained and certified in the repair and abatement of minor asbestos-related problems and in the implementation of the 0 & M Plan.
17. Plaintiffs' counsel and their own expert(s) shall have the right to reasonably inspect, photograph, or otherwise monitor compliance with the terms of the asbestos abatement project and implementation of the 0 & M Plan.
16

V. Implementation and Other Provisions

1. The Court shall retain active jurisdiction and

supervision of this case for a period of at least two years from the

time this agreement is entered as an order. At that time, the Court

shall terminate supervision and transfer this case to its inactive

docket unless the plaintiffs move for the continuation of

jurisdiction and active supervision due to an alleged failure by

defendants to fully implement and comply with the terms of this

agreement. In that event, there shall be a hearing to determine

whether or not jurisdiction and supervision shall continue. If the

Court determines not to close the case, it shall retain jurisdiction

until this agreement is fully implemented and compliance has been

demonstrated by the defendants in all substantive areas. At such

time, the defendants may move the Court to terminate its supervision

and transfer this case to the inactive docket, subject to plaintiffs

moving at a later time for reinstatement of this action based upon

an alleged failure by defendants to maintain compliance with the

terms of the decree and underlying agreement. However, prior to

initiating any court action to revive the case, plaintiffs' counsel

shall bring any allegations of non-compliance to the attention of

the defendants' counsel so that the parties can first attempt in

good faith to resolve all such disputes between themselves.

2. Defendants' counsel shall notify plaintiffs' counsel in

advance of any attempt to modify the court decree that implements

this agreement. The parties shall then attempt to resolve all

disputes concerning the proposed modification(s) before resort is

made to the court.

:

17

3. Beginning March 1, 1989, the defendants shall provide the Court and plaintiffs with written progress reports detailing the steps taken to comply with the respective provisions of this Agreed Entry. The reports shall be made every three (3) months thereafter until the court's jurisdiction over this case ends.
4. During the implementation phase of this case, plaintiff's counsel and their paralegals shall have reasonable access to documents, facilities, personnel and offenders of the prison in order to monitor first-hand the progress of implementation.
5. Defendants shall within two months of the date this agreement is approved by the Court explain the terms of this agreement to their agents, servants, representatives, and employees (professional staff, correctional officers and other personnel), in order to ensure their understanding of the requirements of this agreement and the necessity for strict compliance therewith. Defendants shall thereafter periodically review the terms of the agreement with the above persons.
6. By entering into this agreement, members of the plaintiffs' class are not waiving any right they might otherwise have to pursue individual claims for damages against defendants or Westville personnel. The only claims settled herein are those for injunctive relief of a general nature which are applicable to more than the individual circumstances of a particular class member.
7. The existing complaint in this action, which was drafted prior to the completion of discovery, does not raise a
18

number of issues that are addressed and resolved by this agreement. To avoid the necessity of again amending the complaint in order to reflect the full scope of this case, the complaint shall be deemed or treated as though it has been amended to cover all of the issues contained in the agreement.
8. The parties agree that nothing in this agreement precludes the defendants from relocating the Psych Unit or the Chronic Care Unit to another facility, from implementing new programs, or from making other operational changes that do not have an affect of diminishing or altering rights secured by this agreement.
9. The parties to this agreement shall promptly submit it to the court for its approval and entry of a consent decree.
10. The parties, shall attempt to negotiate a settlement on attorney's fees and costs. However, should the parties be unable to reach a settlement as to attorneys' fees and costs within 60 days of entry of the decree, the matter shall be submitted to the court for its determination; provided, however, that this time period may be extended by stipulation of the parties if approved by the Court.

Agreed to this

of

Attorneys for Plaintiff class:

1989 Attorney for Defendants

Linley E. Pearson Attorney

ndiiaana

Mark Lopez National Prison Project 1616P Street NW Suite 340 Washington, D.C. 20036

DavitfT A. Arthur Deputy Attorney General 219 State House Indianapolis, Indiana 46204
19

. X...
_arence Albrecht Clinical Program Valparaiso University School of Law Valparaiso, Indiana 46383
J. Patrick SmitTi 205-207 First Nathional Bank Bldg. LaPorte, Indiana 46350
APPROVED AND ORDERED THIS / 7 DAY OF ^ t ^ _
77

lqflq

-hiet Judge, united titat^s District

20

Procedures for the Use of Mechanical Restraints and Seclusion
The following procedures shall govern the use of mechanical restraints and seclusion in the Psychiatric Unit:
1. Mechanical restraints may only be used if an offender presents himself as an imminent threat of inflicting serious harm to himself or others by assaulting a person, engaging in significant destruction of property, attempting suicide, inflicting wounds upon himself, or displaying other signs of imminent violence.
2. Mechanical restraints may only be used at the direction of a psychiatrist or other physician. Although approval for the imposition of mechanical restraints may initially be obtained by. telephone--when no psychiatrist or other physician is available to personally evaluate the offender before their imposition--a psychiatrist or physician must personally evalute the offender within twenty-four (24) hours of the imposition and approve of their use in writing or the offender shall be released from all restraints.
3. All renewal orders approving the continued use of restraints, with the exception of weekends and holidays, must be preceded by a personnel evaluation by a psychiatrist or other physician. Unless the examining psychiatrist or physician determines within twenty-four (24) hours of the last order that
APPENDIX A

the offender continues to meet the criteria set forth in paragraph one of this appendix for the use of restraints and expresses that determination through a written renewal order, the offender must immediately be released from all restraints. However, on weekends, a renewal order based upon a personal evaluation may occur either on a Saturday or a Sunday and need not occur on both days. A telephone approval must occur, however, if the restraints are to be continued on the day no personal evaluation occurs. Telephone approval will suffice on holidays as well.
4. The reason or reasons the psychiatrist or other physician determines that restraints are necessary in each case shall be factually documented in writing each time the determination is made. This information shall be made part of a record which shall include the restrained offender's name and DOC number, a brief description of the incident(s), event(s) or behavior that precipitated the restraint, the reason for the application of restraints, the name of the staff member who assisted in the application of restraints, the specific type of restraints that were applied, the number of limbs restrained, the date and time the psychiatrist or medical doctor authorized the application or continuation of restraints, and an indication as to whether the authorization was made after a personal evaluation or by telephone, and the date and time the offender was released from restraints. This report shall be made a part of the offender's medical packet, and a copy shall be sent to the

I t
Assistant Superintendent of Programs. 5. In addition to the above documentation, a central record
such as daily log book shall be maintained listing the names of all offenders who are in restraints on each shift.
6. All offenders who are in mechanical restraints shall be observed by personnel at least every fifteen (15) minutes and each observation shall be documented in writing by noting in a log book the time the rounds occurred.
7. Soft mechanical restraints shall be used at all times unless it is determined by the person in charge of the Unit that soft restraints will not provide the necessary degree of security. In that case, the reasons for the determination shall be fully documented in writing.
8. Mechanical restraints shall be utilized in a particular case only if they are the least restrictive way to achieve the necessary degree of protection or security.
9. The least restrictive number of limbs consistent with adequate security shall be restrained. That is, when three-way restraints would suffice, four limbs shall not be restrained and so forth. Mechanical restraints shall be lessened and completely removed at the direction of a psychiatrist or to the physician earliest opportunity the offender's behavior and condition permit.
10. An offender who is mechanically restrained shall be released to perform necessary bodily functions at least every four (4) hours, unless he is sleeping or release is

contraindicated as determined by the medical staff. Restrained offenders, except during the evening shift (between approximately 11:00 p.m. and 7:00 a.m.) shall be allowed use to a bathroom for bowel movements unless allowing them to do so is contraindicated. During the evening shift, a lessening of restraints shall be sufficient for purposes of bowel movements.
11. Mechanical restraints shall never be used as method of punishment or for administrative convenience.
12. Mechanical restraints shall not be applied around the neck or head of the offender or in a way that causes unnecessary pain or discomfort or restricts the offender's blood circulation or breathing.
13. No offender shall be mechanically restrained without proper clothing or bedding except when it is necessary to prevent injury. In the absence of such necessity, an offender in restraints shall be permitted to wear the same articles of clothing that non-restrained offenders are permitted to wear and to have the same bedding.
14. No offender shall be mechancically restrained in a seclusion room except by an order of a psychiatrist or physician who determines in accordance with the standard articulated in paragraph one that restraint is necessary.
15. The procedures prescribed above--relating to authorization, documentation, observation and release— shall apply with equal force to assignments to seclusion rooms without restraints except in those contexts identified below in paragraph

sixteen (e.g. a request by the offender and disciplinary segregation).
16. These procedures do not apply to the use of mechanical restraints to transport an offender within or outside the Westville Correctional Center, to situations where the patient is confined in a seclusion room at his own request (without mechanical restraints) or where a patient is housed in a seclusion room on disciplinary custody status (without mechanical restraints) pursuant to the Adult Authority Disciplinary Policy of the Department of Correction. However, such patients shall still be observed every fifteen (15) minutes in accordance with paragraph six and, in the case of a disciplinary confinement, shall periodically be observed by a psychiatrist to monitor their conditions.

Procedures Governing Involuntary Mental Health Transfers
I. The Standard A patient may involuntarily be transferred to the Psychiatric
Unit at Westville, to any other mental health facility of the Department of Correction or to a facility operated by the State Department of Mental Health if he is mentally ill under applicable state law, is in need of psychiatric treatment, and either poses a danger to himself or to other persons or is gravely disabled.
II. The Procedures A. An offender who is believed to be in need of care and
treatment in a mental health facility shall be referred to a psychiatrist for examination.
B. If, under the standard articulated above, the examining psychiatrist concludes that a mental health transfer is appropriate, he shall submit a signed written report to the administration of the facility in which the offender is confined containing a summary of the offender's psychiatric history, his impressions of the offender's condition and symptoms, his diagnosis, and his recommendation with respect to a transfer.
APPENDIX B

C. If transfer to a mental health facility is recommended, a hearing shall be conducted prior to the offender's removal from his place of confinement unless the offender's condition is perceived by the psychiatrist to require an emergency removal to a mental health facility—in which case the hearing may follow the actual removal in accordance with the timetable specified in Section E of this appendix.
D. Non-Emergency Transfers 1. In this category of cases, the offender shall be afforded an opportunity to have a hearing prior to being transferred to a mental health facility. The hearing shall be convened before an impartial hearing officer no sooner than ten (10) days but no later than fourteen (14) days after the psychiatrist's recommendation of a transfer unless the offender elects to waive his right to a hearing. Any waiver must be signed in the presence of an attesting witness. 2. At the hearing, the offender has the right to appear in person, to speak in his own behalf, to call witnesses, to present documentary evidence, to confront and cross-examine witnesses (provided he requests the opportuntity to do so in advance of the hearing), and to be represented by counsel at his own expense or to have a competent and independent person assigned without cost to represent him at the hearing (who shall not be another offender unless the offender so requests). A written form for requesting representation shall be provided by

the Department of Correction. There shall be a place on the form for the offender either to request or waive representation which shall be vitnessed at the time of its execution. The superintendent at each institution shall designate a permanent group of competent persons from which the institutional representatives are to be selected in a given case. The group shall include only counselors, behavioral clinicians and other treatment personnel who shall receive adequate substantive and procedural training to prepare them for the handling of such cases. Institutional representatives shall be assigned to cases in a timely manner.
3. The offender shall be given at least ten (10) days advance written and oral notice of the hearing. The notice shall specify: (a) the date, time and place of the hearing; (b) state the reason(s) for the contemplated transfer including a statement of the facts that constitute the basis for the referral; (c) inform the offender of his right to request a hearing or to waive it in writing should be choose to do so; and (d) inform him of each of the prodedural right identified in the preceding paragraph.
4. A copy of the psychiatrist's report shall be furnished to the offender at the time he is presented the notice of the hearing if the offender wishes to receive a copy.
5. At the request of the offender, all Department of Correction personnel who have prepared documentation for submission at the hearing shall be present for cross-examination absent a finding of good cause for their absence. Failure of the

preparer to be present shall result in the exclusion of the document from evidence.
6. After the hearing, the hearing officer shall prepare a written statement containing his recommendations as to transfer, findings of fact, the evidence relied upon and the reason(s) for his recommendations. The offender shall be given a copy of the statement within three working days after the conclusion of the hearing.
7. The recommendation shall immediately be forwarded by the facility where the hearing was conducted to the Director of Offender Placement Services for the Department of Correction who shall within seven (7) days from the date of the recommendation render a decision as to whether the transfer is warranted under the standard for such transfers.
8. A finding that an offender is mentally ill and either dangerous or gravely disabled must be based on clear and convincing evidence.
E. Emergency Transfers 1. When an offender is transferred on an emergency basis to a mental health facility he shall be entitled to all of the procedural safeguards set forth in Section D for non-emergency situations. However, in the case of an emergency, the physical removal of an offender to a mental health faciltity or Psych Unit may precede a hearing. 2. In addition to the general procedural requirements, the following procedural requirements

also apply to emergency transfers. a) Following an emergency transfer to the Psych Unit or
other mental health facility, the offender shall be examined by a psychiatrist at the facility within three working days of the transfer.
b) If a determination is made that there is no basis for involuntary psychiatric treatment under the standard expressed in Section A of this appendix, the offender shall be released from the Unit or facility within a reasonable period of time not to exceed five (5) working days.
c) If, however, a determination is made that treatment is appropriate under the standard expressed in Section A of this appendix, a post-transfer hearing under the procedure described . above shall be held within ten (10) working days of the examination, unless the offender waives his right to a hearing.
F. Voluntary Transfers 1. This agreement does not preclude an offender from voluntarily initiating a transfer to a mental health facility. 2. In cases of voluntary transfers, the hearing procedure prescribed above does not apply. 3. An offender who believes himself to be mentally ill and in need of care and treatment in the Psych Unit or other mental health facility may submit a written request for a transfer. 4. In that event, the offender shall be referred to a

psychiatrist for an examination to determine whether he is mentally ill and in need of treatment.
G. Periodic Review Procedures 1. Each offender who is involuntarily confined in
the Psych Unit or other mental health facility shall be reviewed every six (6) months to determine whether he continues to meet the standard articulated in Section A for involuntary confinement in a mental health unit. Upon admission to the psych unit, each offender shall be informed of his right to periodic review and the procedure for such review.
2. A written report shall be prepared at the conclusion of the review by the psychiatric staff which shall recommend whether or not to continue treatment in the facility. The report shall contain a psyciatric history, a summary of the offender's progress and behavior during the previous six months and a clinical diagnosis.
3. If the recommendation is to continue treatment, the offender shall be entitled, if he chooses, to have the determination reviewed within fourteen (14) days by a panel composed of two members of the psychiatric staff (including the psychiatrists who made the recommendation) and an independent psychiatrist or clinical psychologist who shall conduct a personal evaluation of the offender, review the offender's clinical records, and afford the offender an opportuinty to explain why he believes he no longer is in need of treatment in the Psych Unit or other mental health facility. The panel shall issue a written decision within ten (10)
6

days as to whether the offender continues to meet the standard articulated in Section A for involuntary confinement in a mental health unit, specifying the reason(s) for its decision. A decision to continue treatment in the Unit shall require only the concurrence of two of the three panel members.

INDIANA DEPARTMENT OF CORRECTION

••>. • S'..r:r S I T . . i t

TO: FROM :
DATE: SUBJECT:

David P. Patterson, Director Public Safety and Conservation
John T. Commissii
August 2
Request for Authorization to Initiate Tuition Reimbursement Program

For some time, this department as well as other state agencies which utilize nurses have had an extremely difficult time in the recruitment and retention of nursing staff at various state mental health and correctional institutions. It appears that this department, because of the nature of its mission, has even a greater difficulty in recruiting and retaining qualified nursing staff to meet necessary standards of healthcare services to confined offenders. This particular situation has been brought about by numerous circumstances, most notibly the nursing shortage throughout the United States. Throughout the country, private and not-for-profit hospitals have experienced an intense competition to attract and retain qualified nurses. The competition has become so extreme that numerous bonuses, incentives and fringe benefits have been given to applicants to insure their employment at a particular hospital.
In the various discussions which have occurred in the las.t several months, it has become obvious that this department is ill equiped to compete with the recruitment and retention of nursing staff when considering the inducments offered by private and public hospitals. The State Budget Agency as well as the State Personnel Department and the Governor's Office have been extremely helpful in recognizing this need and have approved salary and recruitment differential plans to attract nursing staff. As is well documented, these efforts, though made in good faith and in the right direction, have fallen short to hire staff necessary to insure the standard of quality healthcare services which this department must provide to the confined offender. The situation is further compounded by the fact that in the absence of the individual recruitment and retention of nurses, it has become necessary to contract with registries and/or nursing corporations to insure adequate nursing coverage. This has proven to be a fiscal catastrophe, in that these contracts typically are two and three times more expensive than the employment of nurses on regular manning table positions.

MOTHER
uuauuw
Jp

APPENDIX C

David P. Patt August 2, 1988 Page 2

nn u rC5 e^»si Y ri C h a"ass b^een sfu°oaretshii-SpndeP*"Kt.mfen,t t.o .r.e.cruit a"n»d»«retteacianm

program be established tc. attrVri- - *

•t u l t l o n reimbursement

department. Authorization\s theriV " * " " L P N s a n d R N s in this

Budget Agency to initiate ,,?oh

°-re r e c 5 u e s t e d f r o * the State

initially

limited

tS

LPNs

and

R

N

/

t

U T

\

!

iO

n

reimbursement

program

Indiana Youth
as each institution Zll

and

existing "other operating

bursement

Pl^

ana Womens
f l u n d s from within

^ n ^ m U S t b e a n L P N <="rrently employed d e P a r t m e n t who wishes to enroll in classes would qualify the person as a registlreT ^

the department would be eligible

to

bUrS6ment
a regular

i f t h a t P e « ° n ^ addi shift was enrolled and

* •vSfJ!?i5inJnt ° fm i n i m a l l y o ^ year would be

expected from an employee to satisfy the tuition

reimbursement award.

"lon

course?

r e i m b u « e m e n t a w a r d w ° ^ d be made successful completion of the

It has been determined that the

"August 2, 1988 Page 3
JMH:gb attachment
cc: James E. McCart Cloid L. Shuler Thomas D. Hanlon Norman G. Owens John L. Nunn Walter E. Martin Michael C. Cross Esther Furbee

contents of Educational/Industrial Complexes Law Libraries
1. Indiana Code (statutes related to criminal law, habeas corpus, the state consitution, family law, and state rules of criminal and civil procedure).
2. Indiana Cases or Northeastern Reports (1960 - present) 3. Indiana Digest 4. United States Code Annotated
Title 18 Title 28 5 2241-2254 Title 28 Rules of Appellate Procedure Title 28 Rules of Civil Procedure Title 42 $1891-2010 5. Supreme Court Reporter (1960 - present) 6. Federal Supplement (1960 - present) Federal 2d (1960 - present) 7. Black's Law Dictionary 8. Sokol: Federal Habeas Corpus 9. LaFave and Scott: Criminal Law Hornbook (2 copies) 10. Cohen: Legal Research 11. Shepards (for Federal and State Reporters) 12. Palmer: Consitutional Rights of Prisoners 13. Federal Practice Digest 3rd 14. Patients and the Law (ed. by Ira Robbins) Clark Boardman S» Co. 1985 15. Manville and Boston: Prisoners' Self-Help Litigation Manual (Oceana Publications) (2 copies) 16. Cohen & Gobert: Rights of Prisoners (Shepards/McGraw Hill)
APPENDIX D

 
 AO 450 (Rev 5/85) Judgment in a Civil Case <B

NORTHERN

tates Sisirtct Court

c

DISTRICT OF

INDIANA

ROGER W. ANDERSON, et al V.
G. MICHAEL BROGLIN, et al

JUDGMENT IN A CIVIL CASE
CASE NUMBER: S83-0481

Jury Verdict. This action came before the Court for a trial by jury The issues have been tried and the jury has rendered its verdict.
] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED BY CHIEF JUDGE ALLEN SHARP
that judgment is entered on consent of parties as set forth in
Agreed Entry of January 17, 19 89.

January 17. 1989 Date
Anderson v. Bayh
PC-IN-002-011

•.

.••••

Clerk

RICHARD E . TIMMONS
t V

(By)Deputy Clerk ' 'if , / /

 
 Hamid R. Kashani
Attorney at Law
Mr. David A. Arthur Office of Indiana Attorney General Indiana Government Center South 402 W. Washington Street, 5th Floor Indianapolis, Indiana 46204-2770

445 North Pennsylvania Street, Suite 600 Indianapolis, Indiana 46204-1806 317/ 632-1000 Fax: 317/ 632-5520 Electronic: HKashani@aol.com
July 1, 1997

Re: Anderson v. Bayh, N.D. Ind., No. 3:83cvOO481AS

Dear Mr. Arthur,
This letter confirms the substance of our telephone conference of June 23, 1997. On that date, you advised that the Executive Committee of the Department of Correction has decided not to enter into a settlement agreement with the ACLU regarding this case. The DOC Executive Committee has further decided to seek termination of the Agreed Entry.
Because Defendants are withdrawing their consent to settle this matter, the legal issues pertaining to the Agreed Entry we recently negotiated have become moot. As a result, I believe it would be proper for us to advise the Court accordingly and withdraw our motion for the approval of the new Agreed Entry. We plan to do so, unless I hear from you differently.
Thank you for your cooperation in this matter.

Sincerely yours,

cc: Mr. Eric Balaban Mr. Randall Koester

Hamid R. Kashani
Anderson v. Bayh
• • ••• • • • • • •
PC-IN-002-012

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

ROGER W. ANDERSON, et al., Plaintiffs,
v.
EVANBAYH, etal., Defendants.

)

)

)

No. 3:83cvO481AS

)

)

Class Action

)

)

CONSENT ORDER Upon consideration of the parties' Joint Motion for Entry of Consent Order, the entire record, and the agreement of the parties, it is ORDERED that plaintiffs' Motion for Contempt, filed with this Court on May 24, 1995, is hereby withdrawn. It is FURTHER ORDERED that 14 days after the date of entry of this Order, the Agreed Entry in this case, approved by this Court on April 4, 1989 ("Agreed Entry"), shall be stayed in its entirety in light of the Agreement the parties have entered, attached as Schedule 1 to this Order ("Agreement"). It is FURTHER ORDERED that the above-mentioned stay of the Agreed Entry shall not take effect or shall cease, and the Agreed Entry shall remain or again become effective, if plaintiffs show that defendants have failed to comply substantially with the Agreement, and that their failure to comply poses an imminent risk of harm to the plaintiff class. In the event that the stay does not take effect or ceases, the parties shall retain all rights and defenses that they possessed before entry of this Order. Defendants shall not be held in contempt for violating any provision

of the Agreed Entry that is inconsistent with a provision of the Agreement, if defendants show that they are substantially complying with the relevant provision of the Agreement.
IT IS SO ORDERED

Dated:

United States District Judge

• thj
AGREEMENT The undersigned parties through their authorized counsel enter into the following Agreement. I. Introduction The parties agree that settlement of the plaintiffs' Motion for Contempt, dated May 26, 1994, currently pending before the United States District Court for the Northern District of Indiana, in the best interest of all concerned. THEREFORE, in full settlement of the plaintiffs' motion for contempt, and in consideration of the mutual undertakings contained in this Agreement, the parties agree to be bound by and to comply with the following provisions: II. Definitions "Plaintiffs" means all present and future prisoners housed at the Westville Correctional Center (WCC). "Defendants" means all defendants in Anderson v. Bayh. CA No. 3:83cv00481AS, their officers, agents, agencies, employees, successors, and all those acting in concert or participation with them. "Parties" means plaintiffs and defendants, as those terms are defined above. III. Terms A. Compliance with Agreed Entry. The defendants shall comply and be bound by Sections I-XI of the Agreed Entry appended to this Agreement as Attachment 1 ("Agreed Entry"), and by the Letter Agreement between the parties dated July 14, 1995, appended to this Agreement as Attachment 2.
B. Consent to Jurisdiction.

The parties consent to the jurisdiction of the Superior Court for Marion County, IN ("Superior Court") for any proceeding regarding this Agreement. The parties agree that the Superior Court's jurisdiction regarding this Agreement shall be exclusive. The parties further agree that the Superior Court constitutes a "state court" within the meaning of 18 U.S.C. § 3626(c)(2)(B). C. Enforcement.
The parties acknowledge that the remedy at law for any breach, or threatened breach, of any provision of this Agreement likely would be inadequate. The parties agree that in addition to any other rights and remedies which they may have, they are entitled to equitable and injunctive relief from the Superior Court to compel specific performance, or restrain noncompliance, with the provisions of this Agreement. In any action for specific performance or injunctive relief before the Superior Court, the parties waive the claim or defense that a remedy at law alone is adequate. D. Liquidated Damages.
The parties recognize and agree that it would be difficult to determine with certainty the damages arising from any breach of the provisions in this Agreement. The parties also recognize and agree that any such breach could cause irreparable harm to the plaintiffs that cannot adequately be compensated solely through money damages. Therefore, if the Superior Court determines that the defendants have failed to comply with any provision of the Agreement, the defendants shall pay liquidated damages of $ 100.00 a day for each day thereafter that they continue to breach this Agreement, unless otherwise ordered by the Superior Court.
Liquidated damages shall be assessed against the defendants in addition to, and independent of, any other relief ordered by the Superior Court to enforce this Agreement.

Liquidated damages are intended as damages and not as a penalty or fine. Any damages paid by the defendants under this Agreement shall be deposited in a damage fund established by the defendants. The Superior Court shall determine when, how, and to whom monies from the damage fund are disbursed after consulting with the parties. E. Modification.
The parties may modify any or all of the provisions of this Agreement. Modifications must be in writing and signed by all parties to be effective. No modification shall be construed to invalidate any portion of this Agreement, except to the extent expressly provided in the modification. After a modification has been entered by all parties, it shall be deemed to be incorporated by reference into this Agreement. The methods of enforcement of the modification shall be the same as the methods set forth in this Agreement. Provision C of Section XI of Agreed Entry is superseded by the this provision, and shall have no effect. F. Effective Date.
This Agreement shall be effective once both parties have executed the Agreement. G. Term.
Unless earlier terminated in accordance with Section G.I. of this Agreement, this Agreement shall continue in effect for a term of four years.
1. Early Termination. Not less than two (2) years from the effective date of this Agreement, the
defendants may bring a motion in Superior Court to terminate this Agreement upon a showing of substantial compliance, and that noncompliance is not likely to recur. Provision A of Section XI of Agreed Entry is superseded by the this provision, and shall have no effect. H. Assignment.

The defendants may not assign or otherwise transfer any or all of their obligations under this Agreement without the prior written consent of the plaintiffs. Any attempted assignment or delegation of rights, obligations or duties by the defendants of their obligations under this Agreement will be void without the plaintiffs' written consent.
The defendants shall provide the plaintiffs with written notice of their intention to assign any or all of their obligations under the Agreement. This notice will disclose whether the defendants' assignee has agreed to be bound under this Agreement to the same extent as the defendants. Plaintiffs will provide written consent to or rejection of the proposed assignment within 10 days of receipt of the defendants' notice. If the defendants' assignee agrees to be bound under this Agreement to the same extent as the defendants, the plaintiffs shall not unreasonably withhold consent to the assignment. In the event of assignment, the defendants shall use their best efforts to ensure compliance with the terms of this Agreement by the assignee. I. Benefit.
This Agreement shall be binding on the parties and shall inure to the benefit of the respective successors and permitted assigns of each party. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties, and no person or entity shall be regarded as a third-party beneficiary of this Agreement. J. Governing Law.
This Agreement shall be interpreted in accordance with the law of the State of Indiana. K. Severability.
In the event that any court of competent jurisdiction determines that any provision, or any portion of any provision, contained in this Agreement is unenforceable in any respect, then that

provision shall be deemed limited to the extent that the court determines that it is enforceable, and as so limited shall remain in force. In the event that any provision is held to be unenforceable, the remaining provisions of this Agreement nevertheless shall remain in force. L. Fees and Costs.

The parties agree to be bound by the Agreed Entry Regarding the Attorneys' Fees and

Expenses, appended to this Agreement as Attachment 3 ("Fees Entry"). The parties further

agree that plaintiffs' counsel shall"be compensated at an hourly rate of $

for future

monitoring described in paragraph 1 of the Fees Entry.

M. Signatures and Execution of the Agreement

The undersigned have the authority to bind the parties to the terms of this Agreement, and have executed this Agreement to be effective as of the last date listed below.

 
 Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 1 of 16
CLASS,R/R,TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (South Bend)
CIVIL DOCKET FOR CASE #: 3:83−cv−00481−AS−RDP

Anderson, et al v. Broglin, et al Assigned to: Judge Allen Sharp Referred to: Robin D Pierce Demand: $0 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Roger W Anderson on his own behalf and o/b/o all prisoners who are or may be in the future confined at the WCC Westville IN in the custody of the Indiana DOC

Date Filed: 10/19/1983 Date Terminated: 02/01/1989 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by David E Vandercoy Valparaiso University Law Clinic Heritage Hall 510 Freeman Street Valparaiso, IN 46383 219−465−7865 Fax: 219−465−7897 Email: david.vandercoy@valpo.edu TERMINATED: 12/06/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric G Balaban PHV The National Prison Project 915 15th Street North West Seventh Floor Washington, DC 20005 202−393−4930 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hamid R Kashani 445 N Pennsylvania St Suite 600 Indianapolis, IN 46204−1883 317−632−5520 Fax: 317−536−3312 Email: hkashani@aol.com TERMINATED: 07/14/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
J Patrick Smith 609 Michigan Avenue LaPorte, IN 46350 219−362−8537 TERMINATED: 01/17/1989 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth J Falk ACLU of Indiana 1031 E Washington St Indianapolis, IN 46202 317−635−4059 Ext 104 Fax: 317−635−4105 Email: kfalk@aclu−in.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark J Lopez American Civil Liberties Union

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 2 of 16

Suite 410 1875 Connecticut Avenue NW Washington, DC 20009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mohamedu F Jones PHV American Civil Liberties Union Suite 410 1875 Connecticut Avenue NW Washington, DC 20009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Clarence Gibbs

represented by Eric G Balaban PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hamid R Kashani (See above for address) TERMINATED: 07/14/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jasper J Harrison

represented by Eric G Balaban PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hamid R Kashani (See above for address) TERMINATED: 07/14/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth J Falk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jackie D Kinser

represented by Hamid R Kashani (See above for address) TERMINATED: 07/14/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth J Falk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Darrell A Pinkston

represented by Eric G Balaban PHV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hamid R Kashani

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 3 of 16
(See above for address) TERMINATED: 07/14/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth J Falk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant G Michael Broglin
Defendant Robert Orr individually and in his official capacity as Gofernor of the State of Indiana
Defendant John T Shettle substituted 6/9/88 for Gordon H Faulkner individually and in his official capacity as Commissioner of the Indiana Department of Correction

represented by David A Arthur Indiana Attorney General's Office − IAG/302 Indiana Government Center South 302 W Washington Street 5th Floor Indianapolis, IN 46204−2770 317−232−6286 Fax: 317−232−7979 Email: David.Arthur@atg.in.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth M Lahn Indiana Attorney General − IAG/302 Indiana Government Center South 302 W Washington Street 5th Floor Indianapolis, IN 46204−2770 317−232−6201 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David A Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth M Lahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David A Arthur (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth M Lahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Movant
Ricky E Davis TERMINATED: 05/31/1996

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 4 of 16

Movant Richard Lee Rowold TERMINATED: 04/09/1997
Movant Donty Stemmons

represented by Richard Lee Rowold 922713 SCU−WESTVILLE Westville Correctional Center PO Box 473 Westville, IN 46391 219−785−2511 PRO SE
Kenneth J Falk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Donty Stemmons 942492 Westville Correctional Facility PO Box 473 Westville, IN 46391 PRO SE

Date Filed 03/31/1989
03/31/1989 04/04/1989 06/02/1993 06/09/1993 07/12/1993
12/27/1993 01/26/1994 05/16/1994 05/27/1994 05/27/1994

# Docket Text
REMARK: FOR COMPLETE record of docket entries, see paper docket. Starting with 6/2/93, all entries entered into ICMS. FOR PURPOSES OF ICMS, Documents are being numbered, Starting with APPROXIMATE # of 150 (6/2/93) (mjk) (Entered: 06/13/1994)
ORDER by Chief Judge Allen Sharp approving proposed Consent Decree as final jdmt (cc: Smith, Albrecht/Beatty/Fila/Voor, Dabrowski/Arthur, Krakoff/Lopez, Order Book) (Original EOD 4/4/89) (mjk) (Entered: 06/13/1994)
CLERK'S ENTRY OF JUDGMENT entering Consent Decree as final judgment of this court (cc: all counsel) (mjk) (Entered: 06/13/1994)
150 STIPULATION by plaintiff, defendants to continue ct supervision for an addtl six months (mjk) (Entered: 06/13/1994)
151 ORDER by Chief Judge Allen Sharp approving stipulation to continue ct supervision for an addtl six months [150−1] (cc: Smith, Vandercoy, Lopez, Lahn) (mjk) (Entered: 06/13/1994)
167 ORDER by Chief Judge Allen Sharp [158−1] motion to hold defts in contempt of ct, [157−1] motion for evidentiary hearing, [152−1] motion to extend court supervision for additional 6 months, nunc pro tunc all terminated as moot (cc: all counsel) (mjk) (Entered: 07/13/1994)
152 MOTION by plaintiff Roger W Anderson to extend court supervision for an additional 6 months, nunc pro tunc (mjk) (Entered: 06/13/1994)
153 ATTORNEY APPEARANCE as co−counsel for plaintiff(s) by Hamid R Kashani (mjk) (Entered: 06/13/1994)
154 LETTER from Robert Beatty for copy of Consent Decree in this case. Copy sent (pd for) (mjk) (Entered: 06/13/1994)
155 MOTION by plaintiff Roger W Anderson for temporary restraining order , and for preliminary injunction (mjk) (Entered: 06/13/1994)
156 MEMORANDUM by plaintiff Roger W Anderson in support of motion for temporary restraining order [155−1], of motion for preliminary injunction [155−2] (mjk) (Entered: 06/13/1994)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 5 of 16

05/27/1994 05/27/1994 05/27/1994 05/31/1994 05/31/1994 06/08/1994 06/08/1994 06/08/1994 06/22/1994 07/12/1994
07/15/1994 07/15/1994 07/18/1994
07/18/1994 08/25/1994 09/16/1994 11/02/1994
11/10/1994 11/16/1994
12/02/1994 12/06/1994

157 MOTION by plaintiff Roger W Anderson for evidentiary hearing (mjk) (Entered: 06/13/1994)
158 MOTION by plaintiff Roger W Anderson to hold defts in contempt of ct (mjk) (Entered: 06/13/1994)
159 MEMORANDUM by plaintiff Roger W Anderson in support of motion to hold defts in contempt of ct [158−1] (mjk) (Entered: 06/13/1994)
160 MOTION by plaintiff Roger W Anderson to extend court supervision nunc pro tunc (mjk) (Entered: 06/13/1994)
161 CERTIFICATE by plaintiff Roger W Anderson of service of [160−1] (mjk) (Entered: 06/13/1994)
162 MOTION for attorney Mohamedu F Jones to appear pro hac vice (mjk) (Entered: 06/13/1994)
163 NOTICE by plaintiff Roger W Anderson of withdrawal [155−1], [155−2] (mjk) (Entered: 06/13/1994)
164 NOTICE OF SERVICE by plaintiff Roger W Anderson of discovery materials: Two Notices of depositions upon defts (mjk) (Entered: 06/13/1994)
165 ORDER by Chief Judge Allen Sharp granting motion for attorney Mohamedu F Jones to appear pro hac vice [162−1] (cc: all counsel) (mjk) (Entered: 06/23/1994)
166 ORDER by Chief Judge Allen Sharp granting motion to extend court supervision nunc pro tunc [160−1], extending supervision until 6/3/94 (cc: all counsel) (mjk) (Entered: 07/13/1994)
168 MOTION by plaintiff Roger W Anderson for status conference &evidentiary hearing on motion to hold defts in contempt of court (mjk) (Entered: 07/19/1994)
169 MOTION/SUGGESTION by plaintiff Roger W Anderson for referral to Magistrate Judge for purpose of conducting settlement conf (mjk) (Entered: 07/19/1994)
170 ORDER by Chief Judge Allen Sharp granting motion for referral to Magistrate Judge for purpose of conducting settlement conf [169−1] Case referred to Mag Judge Robin D. Pierce to conduct such proceedings, incl evidentiary hrgs, as required &when appropriate, enter written order setting forth disp of all nondisp P/T matters (cc: all counsel, MJ Pierce) (mjk) (Entered: 07/19/1994)
171 REPORT TO THE COURT AND MOTION by plaintiff Roger W Anderson for correction of extension date (mjk) (Entered: 07/19/1994)
172 ORDER by Mag Judge Robin D. Pierce ;settlement conference set for 9:00AM on 9/16/94 (cc: all counsel, J. Sharp) (lpw) (Entered: 08/25/1994)
173 ORDER by Mag Judge Robin D. Pierce ;settlement conference set for 10:00AM on 12/9/94 (cc: all counsel) (lpw) (Entered: 09/16/1994)
174 ORDER by Mag Judge Robin D. Pierce to correct location of settlement conference. Location is Westville Correctional Center in Westville at the time previously scheduled. (cc: all counsel) (smp) Modified on 11/03/1994 (Entered: 11/03/1994)
175 MOTION by plaintiff Roger W Anderson to extend settlement conference date (smp) (Entered: 11/15/1994)
176 ORDER by Mag Judge Robin D. Pierce granting motion to extend settlement conference date [175−1] ;settlement conference set for 10:00 1/26/95 at WCC (cc: Lopez, Kashani, Vandercoy, Lahn−DAG, Hatton−WCC) (smp) (Entered: 11/18/1994)
177 MOTION to withdraw appearance of David E Vandercoy for plaintiff Roger W Anderson and pltfs' class (smp) (Entered: 12/05/1994)
178 ORDER by Chief Judge Allen Sharp granting motion to withdraw appearance of David E Vandercoy for plaintiff Roger W Anderson and pltfs' class [177−1]

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 6 of 16

12/16/1994 12/19/1994
12/23/1994 01/26/1995 01/27/1995 02/02/1995 02/03/1995 05/10/1995 07/31/1995 07/31/1995 08/08/1995
09/05/1995
09/12/1995 12/07/1995 12/13/1995 01/12/1996 01/17/1996 02/13/1996

attorney David E Vandercoy for Roger W Anderson terminated (cc: all counsel) (smp) (Entered: 12/07/1994)
RECEIPT of 5 copies of revised, proposed order for pltfs' mot to extend court supervision nunc pro tunc (smp) (Entered: 12/19/1994)
179 ORDER by Chief Judge Allen Sharp granting motion for correction of extension date [171−1]. The Ct's active juris and supervision of the Agreed Entry shall continue until such time as defts substantially comply w/terms of the Agreed; effective, nunc pro tunc as of 12/2/93 (cc: Vandercoy, Lopez, Kashani, Lahn) (smp) (Entered: 12/20/1994)
180 COPY OF LETTER from Hamid R Kashani cnsl for plaintiff Roger W Anderson, to Seth M Lahn cnsl for defts re non−appearance at meeting set for 12/21 &22/94 (mjk) (Entered: 12/27/1994)
MINUTES: before Mag Judge Robin D. Pierce ;settlement conference held on 1/26/95 (lpw) (Entered: 01/30/1995)
181 NOTICE of hearing before Mag Judge Robin D. Pierce ; Telephonic Status conference set for 2:00PM on 2/3/95 (cc: all counsel) (lpw) (Entered: 01/30/1995)
183 LETTER from Garrett Carter (smp) (Entered: 02/09/1995)
182 ORDER by Mag Judge Robin D. Pierce ; settlement conference set for 9:30AM on 3/16/95 at WCC (cc: all counsel, J. Sharp) (lpw) (Entered: 02/03/1995)
184 LETTER from James Martin requesting copy of case (Non−party) (smp) (Entered: 05/11/1995)
185 MOTION by non−party Tom Byers for court to find defendants in contempt of court for failure to comply with provisions of Consent Agreement (smp) (Entered: 08/02/1995)
186 LETTER from non−party Tom Byers requesting copy work and distribution of motion to all parties (smp) (Entered: 08/02/1995)
187 REPORT AND RECOMMENDATION concerning motion by Tom Byers for court to find defendants in contempt of court for failure to comply with provisions of Consent Agreement [185−1] to Chief Judge Allen Sharp by Mag Judge Robin D. Pierce, recommending that motion be denied (cc: all counsel) (mjk) (Entered: 08/09/1995)
188 ORDER by Chief Judge Allen Sharp adopting report and recommendation [187−1], denying motion for court to find defendants in contempt of court for failure to comply with provisions of Consent Agreement [185−1] (cc: Magistrate Pierce, all counsel) (smp) (Entered: 09/06/1995)
189 ATTORNEY APPEARANCE for defendant G Michael Broglin, defendant Robert Orr, defendant John T Shettle by David A Arthur (smp) (Entered: 09/13/1995)
190 MOTION by plaintiff Roger W Anderson for status conference (smp) (Entered: 12/08/1995)
191 ORDER by Mag Judge Robin D. Pierce ;Status conference set for 10:30 1/8/96 to discuss settlement before Mag Judge Robin D. Pierce (cc: all counsel) (smp) (Entered: 12/14/1995)
192 ORDER by Mag Judge Robin D. Pierce ;Status conference re−set from 1/8/96 to 2/13/96 at 1:30 p.m. (South Bend time) before Mag Judge Robin D. Pierce (cc: all counsel) (smp) (Entered: 01/16/1996)
193 LETTER from David Lee King requesting copy of docket sheet (Sent letter re cost of copies) (smp) (Entered: 01/18/1996)
194 ORDER by Mag Judge Robin D. Pierce ; Status conference held 2/13/96; it is now orderd that defendants indicate any final official acceptance and approval of the proposed Agreed Entry, Proposed Agreed Entry Regarding Attorney's Fees and Expenses, proposed Joint Motion for Approval of the Notice of Settlement and

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 7 of 16

02/26/1996 02/26/1996 02/26/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996

proposed letter agreement submitted by plaintiff on 7/14/95, no later than 3/22/96 (cc: all counsel) (lpw) (Entered: 02/13/1996)
195 MOTION by plaintiff Roger W Anderson for attorney fees and expenses (smp) (Entered: 02/27/1996)
196 MEMORANDUM by plaintiff Roger W Anderson in support of motion for attorney fees and expenses [195−1] (smp) (Entered: 02/27/1996)
197 EXHIBITS by plaintiff Roger W Anderson to motion for attorney fees and expenses [195−1] (smp) (Entered: 02/27/1996)
198 MOTION by movant Ricky E Davis for contempt of Court Order (smp) (Entered: 03/19/1996)
199 AFFIDAVIT of Ricky E. Davis to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
200 AFFIDAVIT of Marlin Plowman to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
201 AFFIDAVIT of Charles D. McGee to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
202 AFFIDAVIT of Clifford L. Fidler, Jr. to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
203 AFFIDAVIT of Robert L. Butler, Jr. to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
204 AFFIDAVIT of Donald E. Senst to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
205 AFFIDAVIT of Shaun Beasley to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
206 AFFIDAVIT of Fredrick Chatman to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
207 AFFIDAVIT of David W. White to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
208 AFFIDAVIT of Thedell Polk to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
209 AFFIDAVIT of Robert Payton to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
210 AFFIDAVIT of Marceau LeBon to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
211 AFFIDAVIT of David G. Taylor, Sr. to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
212 AFFIDAVIT of Raymond Armstrong to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
213 AFFIDAVIT of Jeff McGuff to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
214 AFFIDAVIT of Richard DeWitt to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
215 AFFIDAVIT of William Durham to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
216 AFFIDAVIT of Donald Denton to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
217 AFFIDAVIT of Jeffery A. Williams to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)

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03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/18/1996

218 AFFIDAVIT of Robert Lawrence to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
219 AFFIDAVIT of Ronald Louis Goodman to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
220 AFFIDAVIT of Bruce Wayne Smith to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
221 AFFIDAVIT of James R. Coppis to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
222 AFFIDAVIT of David Olesen to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
223 AFFIDAVIT of Roy Palmer to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
224 AFFIDAVIT of Bryan Burkett to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
225 AFFIDAVIT of George Lutes to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
226 AFFIDAVIT of Otla Tell to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
227 AFFIDAVIT of Bennie L. Williamson to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
228 AFFIDAVIT of Lester Riggins to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
229 AFFIDAVIT of Steven Hollar to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
230 AFFIDAVIT of Jesse James to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
231 AFFIDAVIT of Damien Baker to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
232 AFFIDAVIT of Larry W. McCoy to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
233 AFFIDAVIT of George Arthur Finney to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
234 AFFIDAVIT of William K. Nelson to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
235 COPY OF LETTER to Vernon Brown re Larry Fidler from W. Dean Neitzke, Supervisor, Health Care Services, IDOC (smp) (Entered: 03/19/1996)
236 AFFIDAVIT of Gerald J. Rudecki to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
237 AFFIDAVIT of Kerry Walker to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
238 AFFIDAVIT of Kevin Callicoat to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
239 AFFIDAVIT of Wendell Raines to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
240 AFFIDAVIT of Prince Allen to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
241 AFFIDAVIT of David M. Abney to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 9 of 16

03/18/1996 03/18/1996 03/18/1996 03/18/1996 03/19/1996 03/20/1996 03/20/1996
03/22/1996 03/22/1996 03/29/1996 03/29/1996
03/29/1996 04/17/1996 04/17/1996 04/18/1996 04/18/1996 04/19/1996 04/24/1996 04/24/1996 04/25/1996

242 AFFIDAVIT of Clifford L. Fidler, Jr. to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
243 AFFIDAVIT of Efrain Rochett to motion for contempt of Court Order [198−1] (smp) (Entered: 03/19/1996)
244 LITERATURE re lead and drinking water at WCC (smp) (Entered: 03/19/1996)
245 LETTER from movant Ricky E Davis addressed to Judge Miller (smp) (Entered: 03/19/1996)
246 MOTION by defendant G Michael Broglin, defendant Robert Orr, defendant John T Shettle to extend time to 4/17/96 to respond to pltf's petition for atty's fees and expenses (smp) (Entered: 03/20/1996)
247 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to/incl 4/17/96 to respond to pltf's petition for atty's fees and expenses [246−1] (cc: all counsel) (smp) (Entered: 03/20/1996)
248 REPORT AND RECOMMENDATION that motion for contempt of Court Order be denied [198−1] to Chief Judge Allen Sharp by Mag Judge Robin D. Pierce; objs to Report and Recommendation due within 10 days of receipt of notice (cc: all counsel) (smp) (Entered: 03/20/1996)
249 MOTION by defendant G Michael Broglin, defendant Robert Orr, defendant John T Shettle to extend time to 3/29/96 to formally accept or reject proposed Agreed Entry (smp) (Entered: 03/25/1996)
250 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to 3/29/96 to formally accept or reject proposed Agreed Entry [249−1] (cc: all counsel) (smp) (Entered: 03/25/1996)
251 JOINT MOTION by plaintiff, defendant for order approving Notice of Settlement (smp) (Entered: 04/01/1996)
252 ORDER by Mag Judge Robin D. Pierce granting motion for order approving Notice of Settlement [251−1]; Notice to be posted for a period of 30 days; 5 copies of proposed Agreed Entry to be maintained at each WCC law library; within 10 days after expiration of 30−day period, defts to file an affidavit attesting to compliance with terms of this order (cc: all counsel) (smp) (Entered: 04/01/1996)
253 AFFIDAVIT of Clifford L. Fidler, Jr. to motion for contempt of Court Order [198−1] (smp) (Entered: 04/01/1996)
254 MOTION by defendants to extend time to 5/17/96 to respond to pltfs' petition for attorney's fees and expenses (smp) (Entered: 04/17/1996)
255 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to 5/17/96 to respond to pltfs' petition for attorney's fees and expenses [254−1] (cc: all counsel) (mjk) (Entered: 04/18/1996)
256 AFFIDAVIT of William Scott Johnson re order [252−1], in opposition to Agreed Entry (mjk) (Entered: 04/19/1996)
257 AFFIDAVIT of James Arnett re order [252−1], in support of Agreed Entry (mjk) (Entered: 04/19/1996)
258 ORDER by Chief Judge Allen Sharp adopting REPORT AND RECOMMENDATION [248−1], denying Davis's motion for contempt of Court Order [198−1] (cc: counsel) (smp) (Entered: 04/22/1996)
259 AGREED entry support by Clarence Gibbs signed 4/21/96 (smp) (Entered: 04/25/1996)
260 STATEMENT of facts in support of [194−2] by non−party Louis Craig Jarreett (smp) (Entered: 04/25/1996)
261 AGREED ENTRY FORM in support of settlement of class action by Jasper Harrison (smp) (Entered: 04/25/1996)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 10 of 16

04/25/1996 04/26/1996 04/29/1996 05/01/1996
05/02/1996 05/02/1996 05/02/1996 05/02/1996 05/02/1996 05/02/1996 05/02/1996 05/06/1996 05/06/1996 05/06/1996 05/08/1996 05/09/1996 05/10/1996 05/13/1996
05/13/1996
05/13/1996 05/13/1996

262 AGREED ENTRY FORM in opposition to settlement of class action lawsuit by Basil Oyindo (smp) (Entered: 04/25/1996)
263 AGREED ENTRY FORM in opposition to settlement of class action by Robert Moore (smp) (Entered: 04/26/1996)
264 AGREED ENTRY FORM in support of sesttlement of class action by Charles J Willis (smp) (Entered: 04/30/1996)
265 LETTER from inmate Jeffrey Lambert re copies of Agreed Entry Support/Opposition Form. Sent forms to GSC, IC and EC Law Libraries to be photocopied (smp) (Entered: 05/02/1996)
266 LETTER from Ricky E Davis re WCC making copies of "Motion to Find Defendants in Contempt" w/attached 544 pages (smp) (Entered: 05/03/1996)
267 LIST of inmates in opposition to Agreed Entry Form (238 names) with individual forms submitted (smp) (Entered: 05/03/1996)
268 MOTION by movant Ricky E Davis for ruling on motion to find defts in contempt of court order (smp) (Entered: 05/03/1996)
269 AGREED ENTRY FORM in opposition to settlement of class action by John C. Baxle (smp) (Entered: 05/03/1996)
270 AGREED ENTRY FORM in support of settlement of class action by Timothy E Jones (smp) (Entered: 05/03/1996)
271 AGREED ENTRY FORM in support of settlement of class action by Richard Lee Campbell III (smp) (Entered: 05/03/1996)
272 AGREED ENTRY FORM in support of settlement of class action by Jackie D Kinser (smp) (Entered: 05/03/1996)
273 AGREED ENTRY FORM in support of settlement of class action by Thomas L Custer (mjk) (Entered: 05/07/1996)
274 AGREED ENTRY FORM in support of settlement of class action by Scott Anthony Gorman (mjk) (Entered: 05/07/1996)
275 AGREED ENTRY FORM in support of settlement of class action by Kial R Peffley (mjk) (Entered: 05/07/1996)
276 AGREED ENTRY FORM in support of settlement of class action by Dimitrick Teague (smp) (Entered: 05/09/1996)
277 MOTION by plaintiffs for hearing on the Agreed Entry after 5/25/96 (smp) (Entered: 05/10/1996)
278 AGREED ENTRY FORM in opposition to settlement of class action by Steven E. Freeze (smp) (Entered: 05/14/1996)
279 ORDER by Mag Judge Robin D. Pierce granting motion for hearing on the Agreed Entry after 5/25/96 [277−1] ; hearing set for 10:00 5/21/96 before Mag Judge Robin D. Pierce at WCC ; Court will select prisoners who will testify and issue separate order of transportation (cc: all counsel) (smp) (Entered: 05/14/1996)
280 REPORT AND RECOMMENDATION concerning motion for ruling on motion to find defts in contempt of court order motion for ruling on motion to find defts in contempt of court order [268−1] to Chief Judge Allen Sharp by Mag Judge Robin D. Pierce; objections to be filed within 10 days of receipt of this notice; sent copies of #248 and #258 to Ricky Davis (cc: Judge Sharp, Magistrate Pierce, Davis, all counsel, Davis) (smp) Modified on 05/14/1996 (Entered: 05/14/1996)
281 AGREED ENTRY FORM in support of settlement of class action by George E Blue (smp) (Entered: 05/15/1996)
282 AGREED ENTRY FORM in opposition to settlement of class action by Arthur Curry (smp) (Entered: 05/15/1996)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 11 of 16

05/13/1996 05/13/1996
05/13/1996 05/13/1996 05/13/1996 05/15/1996 05/17/1996
05/17/1996 05/17/1996 05/17/1996 05/17/1996 05/20/1996 05/21/1996 05/21/1996 05/22/1996
05/28/1996 05/31/1996

283 AGREED ENTRY FORM in opposition to settlement of class action by Jeffrey Alan Lambert (smp) (Entered: 05/15/1996)
284 AGREED ENTRY FORMS submitted by Mr. Kashani; IN SUPPORT−Stephen Jones, Brian Hagerman, Anthony Green, Dante Pounds, Richard J Frank, Ryan Keith Bailey, Michael Meade, Ronald James Bigelow Jr; IN OPPOSITION−Jerry Forbes, Gerald J Rudecki, Paul H Franklin (smp) (Entered: 05/15/1996)
285 AGREED ENTRY FORM in opposition to settlement of class action by Roy Xavier Roddy (smp) (Entered: 05/15/1996)
286 LETTER from WCC Litigation Liaison John Schrader re provision of forms for inmatess (smp) (Entered: 05/15/1996)
287 LETTER from counsel for prisoners with attached tabulation of Support/Opposition served on him (smp) (Entered: 05/15/1996)
288 AGREED ENTRY FORM in support of settlement of class action by Trentce Carswell (smp) (Entered: 05/16/1996)
289 ORDER TO PRODUCE PRISONER by Mag Judge Robin D. Pierce; that the Supt. of WCC produce TRENTICE CARSWELL #892223, RICHARD MAUL #2963, JASPER HARRIS #941281, MICHAEL MEADE #882806, CLARENCE GIBBS #872972, JACKIE D. KINSER #854530, MICHAEL F. BOWMAN #945986, ROY XAVIER RODDY #905654, GERALD J. RUDECKIE #900503, ARTHUR J. CURRY #901181, STEVEN E. FREEZE #28684, ROBERT L. BUTLER, JR. #910489, GLENN E. BROGEN #852170, JAMES R. CHILDS #852478 at the hrg. to be held at WCC on 5/21/96 at 10:00AM (cc: Supt. of WCC by cert. mail #P446 209 961, Chief Fed. Lit. Sec. of IAG ) (lpw) (Entered: 05/17/1996)
290 MOTION by defendants to extend time to 6/21/96 to respond to pltfs' petition for atty's fees and expenses (smp) (Entered: 05/20/1996)
291 LETTER from counsel for plaintiffs requesting certain prisoners to testify at hearing of 5/21/96 (smp) (Entered: 05/20/1996)
292 MOTION by movant Ricky E Davis for temporary restraining order , and for preliminary injunction (smp) (Entered: 05/20/1996)
293 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to 6/21/96 to respond to pltfs' petition for atty's fees and expenses [290−1] (cc: all counsel) (smp) (Entered: 05/20/1996)
294 LETTER from counsel for plaintiffs re "Revised List" of prisoners requested to testify at hearing on 5/21/96 (smp) (Entered: 05/21/1996)
295 LETTER from movant Ricky E Davis requesting copy of docket sheet and motion for contempt. Sent copy of docket entries from 3/18/96 to present. (smp) (Entered: 05/21/1996)
296 AFFIDAVIT of Distribution of Notice of Settlement by John F Schrader (smp) (Entered: 05/21/1996)
297 REPORT AND RECOMMENDATION concerning Davis's motion for temporary restraining order motion for temporary order [292−1], motion for preliminary injunction motion for preliminary injunction [292−2] to Chief Judge Allen Sharp by Mag Judge Robin D. Pierce recommending that the motion be DENIED; objections due within 10 days of receipt of this notice (cc: Judge Sharp, all counsel) (smp) (Entered: 05/22/1996)
298 OBJECTIONS by movant Ricky E Davis to Report and Recommendation [297−1] (entitled "motion to object") (mjk) (Entered: 05/28/1996)
299 ORDER by Chief Judge Allen Sharp adopting REPORT AND RECOMMENDATION [297−1], denying motion for temporary restraining order [292−1], denying motion for preliminary injunction [292−2] (cc: all counsel) (wsy) (Entered: 06/03/1996)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 12 of 16

06/10/1996 06/12/1996 06/12/1996 06/24/1996 06/27/1996 06/27/1996 06/27/1996
06/28/1996
07/01/1996 07/02/1996
07/31/1996 07/31/1996
08/09/1996
08/12/1996
08/21/1996 08/21/1996 08/21/1996 08/26/1996
08/26/1996 08/26/1996 09/03/1996

300 LETTER from non−party Clarence Gibbs re events in P.C. Unit at WCC (lpw) (Entered: 06/11/1996)
301 MEMORANDUM by plaintiff in support of class action and contempt motion settlement [252−1] (smp) (Entered: 06/13/1996)
302 AFFIDAVIT of Hamid R. Kashani to memorandum [301−1] (smp) (Entered: 06/13/1996)
303 RESPONSE by defendants to motion for attorney fees and expenses [195−1] (smp) (Entered: 06/25/1996)
304 MOTION by plaintiffs to extend time to 8/7/96 to file reply to defts' response to petition for attorney's fees and expenses (smp) (Entered: 06/28/1996)
305 MOTION for attorney Eric G Balaban to appear pro hac vice for pltfs (smp) (Entered: 06/28/1996)
306 ORDER by Judge Robert L. Miller Jr. granting motion to extend time to 8/7/96 to file reply to defts' response to petition for attorney's fees and expenses [304−1] (cc: all counsel) (smp) (Entered: 06/28/1996)
307 ORDER by Judge Robert L. Miller Jr. granting motion for attorney Eric G Balaban to appear pro hac vice for pltfs [305−1] (cc: all counsel) (smp) (Entered: 07/01/1996)
308 MOTION by defendants to extend time to 8/9/96 to respond to pltf's memorandum in support of class action (smp) (Entered: 07/02/1996)
309 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to 8/9/96 to respond to pltf's memorandum in support of class action [308−1] (cc: all counsel) (smp) (Entered: 07/03/1996)
310 MOTION by plaintiff Roger W Anderson to extend time to 8/21/96 to reply to defts's response to petition for atty's fees and expenses (smp) (Entered: 07/31/1996)
311 ORDER by Mag Judge Robin D. Pierce granting plaintiffs' motion to extend time to 8/21/96 to reply to defts's response to petition for atty's fees and expenses [310−1] (cc: all counsel) (mjk) (Entered: 08/01/1996)
312 MOTION by defendant G Michael Broglin, defendant Robert Orr, defendant John T Shettle to extend time to 8/30/96 to respond to pltfs' memorandum (smp) Modified on 08/13/1996 (Entered: 08/12/1996)
313 ORDER by Chief Judge Allen Sharp granting motion to extend time to/incl 8/30/96 to respond to pltfs' memorandum [312−1] (cc: all counsel) (smp) (Entered: 08/13/1996)
314 MOTION by plaintiff for leave to file over−sized brief (smp) (Entered: 08/22/1996)
RECEIPT of reply to defts' response to petition for atty's fees and expenses by pltfs (smp) (Entered: 08/22/1996)
RECEIPT of Exhibits in support of pltf's reply to defts' response to petition for atty's fees and expenses (smp) (Entered: 08/22/1996)
315 ORDER by Mag Judge Robin D. Pierce granting motion for leave to file over−sized brief [314−1]; clerk directed to file tendered brief (cc: all counsel) (smp) (Entered: 08/27/1996)
316 REPLY by plaintiff to response/opposition to motion for attorney fees and expenses [195−1] (smp) (Entered: 08/27/1996)
317 EXHIBITS by plaintiff to motion reply [316−1] (smp) (Entered: 08/27/1996)
318 MOTION by defendants to extend time to 9/30/96 to respond to pltfs' memorandum in support of class action and contempt motion settlement (smp) Modified on 09/12/1996 (Entered: 09/04/1996)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 13 of 16

09/11/1996 09/12/1996 10/01/1996 10/01/1996 10/15/1996 10/15/1996 10/15/1996 10/17/1996 10/21/1996 10/31/1996 11/01/1996 11/01/1996 11/05/1996 01/22/1997
03/03/1997 03/17/1997 03/19/1997 03/20/1997 03/28/1997 03/28/1997

319 ORDER by Mag Judge Robin D. Pierce granting motion to extend time to 9/30/96 to respond to pltfs' memorandum in support of class action and contempt motion settlement [318−1] (cc: all counsel) (mjk) (Entered: 09/12/1996)
320 RESPONSE by plaintiff Roger W Anderson to motion to extend time to 9/30/96 to respond to pltfs' memorandum in support of class action and contempt motion settlement [318−1] (mjk) (Entered: 09/13/1996)
321 REPLY by defendant John T Shettle, defendant Robert Orr, defendant G Michael Broglin to response/opposition to to motion for attorney fees and expenses [195−1] (smp) (Entered: 10/02/1996)
322 BRIEF FILED by defendant John T Shettle, defendant Robert Orr, defendant G Michael Broglin regarding [252−1] (smp) (Entered: 10/02/1996)
323 MOTION by plaintiff Roger W Anderson to extend time to 10/31/96 to file reply to defts' Brief on Proposed Agreed Entry (smp) (Entered: 10/16/1996)
324 MOTION by plaintiff Roger W Anderson to add individuals as plaintiffs (smp) (Entered: 10/16/1996)
325 MOTION by plaintiff Roger W Anderson to strike defts' reply in opposition to attorney fee petition (smp) (Entered: 10/16/1996)
326 ORDER by Mag Judge Robin D. Pierce granting pltfs' motion to extend time to 10/31/96 to file reply to defts' Brief on Proposed Agreed Entry [323−1] (cc: all counsel) (smp) (Entered: 10/21/1996)
327 ORDER by Mag Judge Robin D. Pierce denying motion to strike defts' reply in opposition to attorney fee petition [325−1] (cc: all counsel) (smp) (Entered: 10/21/1996)
328 MOTION by plaintiff Roger W Anderson to extend time for 1 day to file reply to defts' brief on proposed agreed entry (smp) (Entered: 10/31/1996)
329 ORDER by Mag Judge Robin D. Pierce granting motion to extend time for 1 day to file reply to defts' brief on proposed agreed entry [328−1] (cc: all counsel) (smp) (Entered: 11/04/1996)
330 REPLY by plaintiff Roger W Anderson to defts's brief ono proposed agred entry [322−1] (smp) (Entered: 11/04/1996)
331 ORDER by Mag Judge Robin D. Pierce granting motion to add individuals as plaintiffs [324−1] adding party pltfs, Clarence Gibbs, Jasper Harrison, Jackie D Kinser and Darrell A Pinkston to case (cc: all counsel) (smp) (Entered: 11/06/1996)
332 ORDER by Judge Allen Sharp adopting REPORT AND RECOMMENDATION and in all things CONFIRMED [280−1], denying motion for ruling on motion to find defts in contempt of court order [268−1] (cc: all counsel) (smp) (Entered: 01/23/1997)
333 MOTION by plaintiff Roger W Anderson to amend original agreement (smp) (Entered: 03/04/1997)
334 MOTION by movant Richard Rowold for leave to get copies of entire case at no charge (smp) (Entered: 03/17/1997)
335 ORDER by Judge Robert L. Miller Jr. denying non−party movant Richard Rowold's motion for leave to get copies of entire case at no charge [334−1] all counsel) (smp) (Entered: 03/20/1997)
336 LETTER from movant Richard Lee Rowold requesting copy of entire case file (order denying request already entered 3/19/97 335 ) (smp) (Entered: 03/21/1997)
338 MOTION by non−party movant Richard Lee Rowold for copy of agreement/settlement in this case (smp) (Entered: 03/31/1997)
337 REPORT AND RECOMMENDATION that plaintiff's request for approval of proposed Agreed Entry be DENIED and that their petition for attorney fees and expenses be DENIED as premature [195−1] to Judge Allen Sharp by Mag Judge

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 14 of 16

03/31/1997 04/01/1997 04/04/1997 04/09/1997 04/14/1997 04/14/1997 05/14/1997 05/16/1997 06/13/1997 06/16/1997 06/16/1997 07/14/1997 07/14/1997 07/14/1997 09/12/1997
09/26/1997 10/02/1997 10/09/1997

Robin D.; objections due 10 days after being served (cc: all counsel) (smp) (Entered: 03/31/1997)
339 ORDER by Mag Judge Robin D. Pierce denying motion to amend original agreement [333−1] (motion does not contain proper certificate of service) (cc: all counsel) (smp) (Entered: 03/31/1997)
340 ORDER by Judge Allen Sharp denying non−party movant's motion for copy of agreement/settlement in this case [338−1] (cc: all counsel) (smp) (Entered: 04/03/1997)
341 MOTION by movant Richard Lee Rowold for copy of documents (mjk) (Entered: 04/08/1997)
342 ORDER by Judge Allen Sharp denying motion for copy of documents [341−1] (cc: all counsel) (mjk) (Entered: 04/10/1997)
343 MOTION by plaintiffs to extend time to 5/14/97 to file objections to RRdated 3/28/97 (smp) (Entered: 04/15/1997)
344 ORDER by Judge Allen Sharp granting motion to extend time to 5/14/97 to file objections to RRdated 3/28/97 [343−1] (cc: all counsel) (smp) (Entered: 04/15/1997)
345 MOTION by plaintiffs to extend time to 6/13/97 to file objection to R &R of 3/28/97 (smp) (Entered: 05/19/1997)
346 ORDER by Judge Allen Sharp granting motion to extend time to 6/13/97 to file objection to R &R of 3/28/97 [345−1] (cc: all counsel) (smp) (Entered: 05/19/1997)
347 MOTION by plaintiffs to extend time to 7/14/97 to file objection to R &R of 3/28/97 (smp) (Entered: 06/13/1997)
348 ORDER by Judge Allen Sharp granting motion to extend time to 7/14/97 to file objection to R &R of 3/28/97 [347−1] objections to R&R ddl extended to 7/14/97 (cc: all counsel) (smp) Modified on 06/17/1997 (Entered: 06/17/1997)
349 LETTER from plaintiff Roger W Anderson re implementation of Settlement Agreement (smp) (Entered: 06/17/1997)
350 NOTICE by plaintiffs of withdrawal of motion to approve the new agreed entry (smp) (Entered: 07/15/1997)
351 MOTION by plaintiff to withdraw certain parts of R &R of 3/28/97 due to mootness of the issues (smp) (Entered: 07/15/1997)
352 OBJECTIONS by plaintiff to R &R of 3/28/97 [337−1] (smp) (Entered: 07/15/1997)
353 ORDER by Judge Allen Sharp ;In−court hearing set for 3:00 10/10/97 in LAFAYETTE, IN before Judge Allen Sharp ; one counsel for ea plaintiff and defendant to personally appear to deal with all pending matters and motions (cc: all counsel) (smp) Modified on 09/16/1997 (Entered: 09/15/1997)
354 NOTICE: before Judge Allen Sharp regarding [351−1], regarding [195−1] ; in−court hearing RE−SET from 10/10/97 to 10/9/97 at 3:00 PM in Lafayette, IN before Judge Allen Sharp (smp) Modified on 09/26/1997 (Entered: 09/26/1997)
355 MOTION by movant Richard Lee Rowold to proceed in forma pauperis w/attached account ledger (smp) (Entered: 10/02/1997)
356 MINUTES: before Judge Allen Sharp finding the motion to withdraw certain parts of R &R of 3/28/97 due to mootness of the issues [351−1] moot., denying report and recommendation motion REPORT AND RECOMMENDATION [337−1], denying motion for attorney fees and expenses [195−1]; motion for contemp filed 5/17/94 is DENIED with leave to renew with a new motion to be filed by 1/5/98; case referred to Mag. Pierce for further proceedings. (cc: all counsel) (csi) (Entered: 10/09/1997)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 15 of 16

10/09/1997 10/17/1997 06/19/1998 09/23/1998 09/23/1998 09/29/1998
10/22/1998
01/22/1999 02/24/1999
02/25/1999 03/15/1999 07/13/2000 07/14/2000
09/25/2000 01/02/2001 05/07/2001 07/03/2001 11/04/2003 11/04/2003

357 ORDER by Judge Allen Sharp; case Assigned to Mag. Pierce for further proceedings (cc: all counsel) (mlc) (Entered: 10/10/1997)
358 ORDER by Judge Allen Sharp denying as unnecessary motion to proceed in forma pauperis [355−1]; clerk directed to send Richard Rowold pages 1 &2 of docket sheet (cc: all counsel) Copy sent (smp) (Entered: 10/20/1997)
RECEIPT of motion for order to show cause why defendants should not be held in contempt filed by plaintiff Kwazulu−Bey (smp) (Entered: 06/19/1998)
RECEIPT of class action complaint by Harold E McCoy (smp) (Entered: 09/24/1998)
359 AFFIDAVIT of poverty by Harold E McCoy (smp) (Entered: 09/24/1998)
360 REPORT AND RECOMMENDATION to Judge Allen Sharp by Mag Judge Robin D. Pierce regarding "Class Action Complaint" submitted by Harold E McCoy. It is recommended that "Class Action Complaint" be stricken. Objections due within 10 days of receipt; failure to file objections within specified time waives right to appeal (cc: all counsel) (mjk) (Entered: 09/29/1998)
361 MEMORANDUM AND ORDER: by Judge Allen Sharp dismissing the class action complaint filed by Harold R McCoy (no doc) [0−0] approving and adopting REPORT AND RECOMMENDATION [360−1] although in a slightly different fashion (cc: all counsel) (smp) (Entered: 10/23/1998)
362 MOTION by plaintiff Roger W Anderson, plaintiff Clarence Gibbs, plaintiff Jasper J Harrison, plaintiff Jackie D Kinser, plaintiff Darrell A Pinkston for attorney fees and expenses (smp) (Entered: 01/25/1999)
363 ORDER by Judge Allen Sharp granting motion for attorney fees and expenses [362−1]; awards plaintiffs' counsel $46,307.17 in fees and expenses for post−judgment monitoring and enforcement work (cc: all counsel) (smp) (Entered: 02/25/1999)
364 AMENDED CLERK'S ENTRY OF JUDGMENT regarding [363−1] awarding plaintiffs' counsel fees and expenses in the amount of $ 46,307.17 Equivalent Coupon Issue Rate: 4.584% (cc: all counsel) (smp) (Entered: 02/25/1999)
365 SATISFACTION OF JUDGMENT of 2/25/99 re [364−1] as to defendant John T Shettle, defendant Robert Orr, defendant G Michael Broglin (smp) (Entered: 03/16/1999)
366 MOTION to withdraw appearance Hamid R Kashani for plaintiffs (smp) (Entered: 07/14/2000)
367 ORDER by Judge Allen Sharp granting motion to withdraw appearance Hamid R Kashani for plaintiffs [366−1] attorney Hamid R Kashani for Darrell A Pinkston, Jackie D Kinser, Jasper J Harrison, Clarence Gibbs, for Roger W Anderson terminated Number of pages: 1 (cc: all counsel) (smp) (Entered: 07/17/2000)
368 ATTORNEY APPEARANCE for plaintiffs, movant by Kenneth J Falk (lpw) (Entered: 09/26/2000)
369 NOTICE of change of address by Eric Balaban (smp) (Entered: 01/04/2001)
370 MOTION to proceed in forma pauperis by non−party Michael J Goens (smp) (Entered: 05/08/2001)
371 ORDER by Judge Allen Sharp denying motion to proceed in forma pauperis filed by non−party Michael Goens [370−1]; this case has been closed Number of pages: 1 (cc: all counsel) (smp) (Entered: 07/05/2001)
372 "Threat" to entire offender population at Westville Correctional Facility by Donty Stemmons (smp, ) (Entered: 11/05/2003)
373 MOTION for temporary Injunction by Movant Donty Stemmons w/copy of letter to Superintendent Ed Buss. (smp, ) (Entered: 11/05/2003)

Case: 3:83-cv-00481-AS-RDP As of: 06/21/2014 09:39 PM EDT 16 of 16

11/17/2003
12/01/2003 03/10/2005 08/30/2007

374 ORDER denying 373 Motion for Preliminary Injunction; directing clerk to enclose computer docket that contains attorney information to Mr Simmons; directing Mr Simmons to direct all future correspondence related to this case and the agreed entry to plaintiffs' attorneys. Signed by Judge Allen Sharp on 11/17/03. (smp, ) (Entered: 11/18/2003)
375 Mail Returned as Undeliverable. Mail sent to Mohamedu F Jones and Mark J Lopez at American Civil Liberties Union (Forwarding Order Expired) (smp, ) (Entered: 12/04/2003)
376 NOTICE of Change of Address by Eric G Balaban PHV (smp) (Entered: 03/11/2005)
377 Letter from Roger Anderson re Settlement Agreement. (Sent copy of file−stamped letter to Mr Anderson) (smp) (Entered: 08/30/2007)