Palmigiano v. Travisono
PC-R-001-014 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al v.
EDWARD DiPRETE, et al THOMAS R. ROSS, et al
V. EDWARD DiPRETE, et al

CA NO. 74-0172P CA NO. 75-0032P

ERRATA
The Order of this Court dated August 3, 1990 is hereby amended
as follows:
1. The execution of that portion of Paragraph " 4 " reading:
ORDERED that defendants shall not accept, until November 15, 1990 (the anticipated date of the opening of the new ISC) , for incarceration those convicted offenders who are free on personal recognizance or on bail in the community prior to both their conviction or plea and the imposition of sentence, provided, however, that new bail in the same amount and form as previously set by the state court is obtained. Any delay in the beginning of the service of sentence shall - have no impact on the length, or any other term, of the sentence to be served.
is hereby suspended pending further order of this Court.
That portion of Paragraph " 4 " reading:
If the delays in the execution of sentences, described herein, do not keep the sentenced population at the ISC and the Annex (i.e., those sentenced prisoners involved in the admissions and orientation (A&O) process) at

fer

ACI shall immediately be awarded 3 0 days of expedited good time, which shall be applied against the sentence of each affected prisoner. This award of good time shall, contrary to the terms of R.I.G.L. 42-56-24, be deemed to advance each affected prisoner's eligibility for consideration for parole.
is hereby amended to read:
Whenever the sentenced population at the ISC and the Annex
exceeds 150 prisoners for three consecutive days, all sentenced
prisoners in the ACI shall immediately be awarded 3 0 days of
expedited good time, which shall be applied against the sentence
of each affected prisoner. This award of good time shall, contrary
to the terms of R.I.G.L. 4 2-56-24, be deemed to advance each
affected prisoner's eligibility for consideration for parole.
2. Paragraph "5" which reads:
ORDERED that all persons committed by family court to the ACI for contempt shall not commence their sentences to purge themselves of contempt until November 15, 1990
is hereby amended to read as follows:
Ordered that defendants shall not accept all persons committed
by family court to the ACI to purge themselves of contempt until
November 15, 1990.
BY ORDER:

ENTER:

Deputy Cl

Raymond J. P£ttine Senfor Judge August Ai. , 1990

 
 Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 1 of 54 PageID #: 85

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A PALMIGIANO, et al.

V.

C.A. No. 74-0172L

BRUCE G. SUNDLUN, Governor ofthe State ofRhode Island, and George Vose, in his capacity as Director, Rhode Island Department ofCorrections1

THOMAS R ROSS, et al.

C.A No. 75-0032L

v.

BRUCE G. SUNDLUN, Governor ofthe State ofRhode Island, and George Vose, in his capacity as Director, Rhode Island
Department ofCorrections

SmtJLATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court for the District ofRhode Island on July 15, 1994. (Copy is attached);
WHEREAS, there have been recent population increases at the Adult Correctional Institutions;
WHEREAS, Defendants have submitted a plan to Plaintiffs' counsel to increase
the capacities in the John J. Moran Medium Security facility by adding an additional
overhead bunk in 144 cells; WHEREAS, Defendants have also submitted a plan to Plaintiffs' counsel to
increase the capacity in the High Security Center by adding an additional overhead bunk

1 These were the named Defendants when the case was closed in 1994. Presently, Donald Carcieri is the Governor and AT. Wall is the Director of the Department of Corrections.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 2 of 54 PageID #: 86
in 18 cells (12 inC-mod; and 6 in D-mod). The parties further agree to subtract from the population capacity the 8 hospital beds from the 1994 settlement, as they have been converted into a medical office and examination space; therefore the net increase to the population capacity at the High Security Center is actually 10;
WHEREAS, in 2002 the parties entered into a Stipulation to increase the capacity at the Women's facility (known as the Gloria McDonald facilityi to 153, and the parties now agree that that number was erroneous and should have been 154.
Now, the parties agree to the following amendments of the Final Settlement Agreement, which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995, further amended on December 20, 1996, approved by the Court on January 3, 1997; further amended on March 4, 1998, approved by the Court on March 27, 1998; further amended on May 16, 2002, approved by the Court on May 31, 2002; and further amended on February 3, 2003 and approved by the Court on February 11, 2003. (Copies of said Modifications are attached).
The Final Settlement Agreement, dated March 18, 1994, in Section ill,, D. 1 provided that the total capacity ofthe John 1. Moran Medium security facility shall be
898. That capacity was further amended by agreement to permit an increase to 922. The
Defendants now seek to increase the facility's capacity by 144 bunks. Therefore the total capacity for the John 1. Moran Medium Security facility shall be 1066.
The Final Settlement Agreement dated March 18, 1994, in Section Ill,, D. 5 provided that the total capacity ofthe High Security Center shall be 156. That total included 8 hospital beds. Now the parties agree that the 8 hospital beds may be reduced
2 The Gloria McDonald facility was previously known as the Women's Jonathan Arnold facility in the Final Settlement Agreement
2

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 3 of 54 PageID #: 87
from the total capacity as that area has been converted into a medical office and examination space. The parties further agree that 18 cells in the High Security Center (12 cells inC-mod., and 6 cells in D-mod) may be increased by installing an additional overhead bunk. Therefore, the total capacity in the High Security Center will now be 166.
The Final Settlement Agreement dated March 18, 1994, in Section Ill, 1f D. 3
provided that the total capacity ofthe Women's facility shall be 125. That capacity was further amended by agreement in on December 20, 1996, approved by the Court on January 3, 1997, so that the population capacity was increased to 145. In the May, 2002 agreement, the parties agreed to increase the population capacity at the Women's facility to 153. The parties now agree that the capacity of 153 as set in the 2002 modification was an error and should have been 154. The parties now so amend the population capacity ofthe Women's facility to 154.
The Defendants have now verified that the aforementioned increases would not be detrimental to the infrastructure ofthe facilities and would improve prison management. Plaintiffs' counsel has inspected the facilities and confirmed that the requisite population increases will not impair or infringe upon inmates' rights.
3

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 4 of 54 PageID #: 88

All other provisions ofthe Agreement remain in full force and effect.

Dated: JulyY:2001

Attorney for the Plaintiffs

Attorneys for the Defendants

Approved and so Ordered:

~-lk«.rlJ! ~

~Lagueux

1

aur Senior United States District Judge

Date:

2 I } dO()

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 5 of 54 PageID #: 89

RECEIVED.

DISTRICT FOR THE

COURT OF DISTRICT

THE OF

UNITED STATES RHODE ISLAND

JUN 2 1 1995

CLERK

NICHOLAS A. PALMIGIANO, et al.,

} )

U. S. DISTRICT COURT DISTRICT OF.R. 1.

v.

) C.A. No. 74-172
)

LINCOLN ALMOND, et al.

) )

)

THOMAS R. ROSS, et al.,

) }

v.

}

)

LINCOLN ALMOND, et al. ~~~~~~~~~~~----------- )

C.A. No. 75-032

STIPULATION TO MODIFY FINAL SETTLEMENT AGREEMENT The parties hereby agree to the.following amendment of the Final Settlement Agreement in the above-entitled case which is dated March 18, 1994 and approved by the Court on July 15, 1994. The above agreement provided in Section III, i C.3 that the population capacity at the Women's Jonathan Arnold Facility shall
be one hundred and ten (110). It further provided that if certain e~vironmental improvements and changes were completed by the defendants, the capacity at that facility may be increased to
one hundred and twenty-five (125}. The defendants have now verified that the aforementioned
environmental improvements and changes have been completed and plaintiffs' counsel has inspected the facility and confirmed that
the improvements and changes have been completed. Accordingly, it is stipulated and agreed that Section III, i
C.3 of the above agreement is modified to the extent that the population capacity at the Women's Jonathan Arnold Facility shall
hereafter be one hundred and twenty five (125} .

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 6 of 54 PageID #: 90

,.,I

I

IT .
I

2
All other provi~ions of the above agreement ;r-emain in full

force and effect.

Dated: May 16, 1995 Attorneys for the P1aintiffs

Defendants

Attorney
0290.3

eph S. Larisa 1• ecutive Counsel

Tu4II3) the

Governor

·State House. Room 119

I

Providence, RI 02903 (401) 277-2080 ext. 216

Approved and So Ordered:

Cipr·ano, Chief Le al Counsel Rhode Island Department
of Corrections 75 Howard Avenue Cranston, RI 02920

. Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 7 of 54 PageID #: 91
1·- ·•

009lc/l-3

L

-~~; ...,.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

t_:,,.,_

·•'·,:

....... .... _.··,._..,

.

_~

.
'-"'

..:.

NICHOLAS A. PALMIGIANO, et al.

C.A. No. 74-0172

v.
LINCOLN C. ALMOND, et al.
THOMAS R. ROSS, et al.

C.A. No. 75-0032

v.
LINCOLN C. ALMOND, et al.

STIPULATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court For The District of Rhode Island on July 15, 1994
(a copy is attached); WHEREAS, there have been recent population increases at the
Women's facilities (known as Gloria McDonald facility)~/ and
Intake Service Center South ("ISC") facilities which were covered by
the Final Settlement Agreement; WHEREAS, Defendants have submitted a plan to increase the
capacities in the Women's Gloria McDonald facility and the Intake Center South facility by reconfiguring certain space and usage in
said facilities;

~I

The Gloria McDonald facility was Women's Jonathan Arnold facility

previously known as the in the Final Settlement

Agreement.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 8 of 54 PageID #: 92

Now, the par_ties agree to the following amendments of the

Final Settlement Agreement which was dated March 18, 1994,

approved

by

the

Court

on

July

15,

1994,

and

subsequently J

amended

in June, 1995. (A copy of the June 1995 Modification is

attached.) The Final Settlement Agreement, as modified in June
,r 1995, provided in Section III, D.3 that the population capacity

at the Women's Prison Facility shall be one hundred twenty-five

(125). The Defendants seek to increase the population ·capacity for the Women's Prison Facility (known as the Gloria McDonald

facility) to one hundred forty-five (145). The Final Settlement Agreement, dated March 18, 1994, in

Section III, ' D.4 provided that the ISC South population capacity shall be two hundred fifty-eight (258). The Defendants seek to increase the population capacity in the ISC South by fifty-eight

(58), as set forth:

• • • • •

Module I - i_nc;rease to forty-::;~~ (46), Module J - increase to twenty-four (24), Module K - increase to forty-si~ (46),
Module L increase to forty-six (46), and
Hospital beds - increase of an additional ten (10) beds.

Therefore, the total capacity for ISC South shall be

three hundred sixteen (316). The Defendants have now verified that the aforementioned
increases would not be detrimental to the infrastructure of the

facilities and would improve prison management. Plaintiffs'

counsel has inspected the facilities and confirmed that the

requested population increases at the Women's Gloria McDonald facility and ISC South would not impair or infringe upon inmates'

rights.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 9 of 54 PageID #: 93

Accordingly, it is stipulated and agreed that Section III,
,r D.3 is modified to the extent that the population capacity at
the Women's Gloria McDonald facility shall hereinafter be one
,r )
hundred forty-five (145) and Section III, D.4 is modified to the extent that the population capacity at ISC South shall hereinafter be three hundred sixteen (316), permitting greater than fifty percent (50%) double ceiling in Modules I, J, K, and L as set
forth herein. All other provisions of the Agreement remain in full force
and effect.

Dated: Attorneys for the Plaintiffs

Attorneys for the Defendants

Alv1n J .ronsteill;isq. The National Prison Project
of the ACLU Foundation 1875 Connecticut Avenue Suite 410 Washington, DC 20009
Approved and So Ordered:

Maureen G. Glynn Special Assistant
Attorney General 150 South Main Street Providence, RI 02903
~nthony A Cipri o, Esq. :thief Legal Counsel Rhode Island Department
of Corrections 75 Howard Avenue Cranston, RI 02920

Chief
Date: t/3/T:t

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 10 of 54 PageID #: 94

---- -- - -·-·-····------'-----------------··-~---------·"·-··

... --· --·- .....

..'I

QQ91C/I-3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Arrt 7 1996

NICHOLAS A. PALMIGIANO, et al.

. DiP~". OF GO~?R.f.c;r!~~

C.A. No. 7;;-o 172

1 I

v.

BRUCE SUNOLUN, et al.

THOMAS R. ROSS, et al.

C.A. No. 75-0032

v. BRUCE SUNDLUN, et al.

STIPULATION

WHEREAS, the parties entered into a Rnal Settlement Agreement dated March 18, 1994 and approved by the United States District Court For the District of Rhode Island on July I5, 1994 (a copy is attached);
WHEREAS, Defendants have submitted a plan to increase the capacities in the Medium II facility1 by reconfiguring certain usage in said facilities;
Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994, approved by the Court on July I 5, 1994, and subsequently amended in June, 1995. (A copy of the June 1995 Modification is attached.)

1 Medium II facility was previously known as the Special Needs Facility in the Final Settlement Agreement.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 11 of 54 PageID #: 95

· The Final Settlement Agreement, dated March 18, 1994, in Section Ill, ~ 0.2 provided

that this facility's population capacity shall be two hundred fifty (250). The Defendants seek to

increase this population capacity in the Medium II facility by forty-two (42), as set forth:

•

A Dorm- increase to sixty-eight (68),

•

B Dorm- increase to sixty-eight (68),

•

C Dorm- increase to sixty-eight (68).

Therefore, the total capacity for Medium II shall be two hundred ninety-two (292). Furthermore, the Settlement Agreement provided in Section Ill, ~ D.2 that "IfF Dorm is

constructed, capacity can be increased to Three Hundred and Four (304) (frfty-four (54) inmates

in F Dorm)"? The defendants seek to increase this population capacity in F Dorm by fourteen

inmates as set forth:

•

F Dorm -- increase to sixty-eight (68).

Therefore once F Dorm is constructed, the total capacity for Medium If shall be three

hundred sixty (360).

The Defendants have now verified that the aforementioned increases would not· be

detrimental to the infrastructure ofthe facilities and would improve prison management. Plaintiffs'

counsel has inspected the facilities and confirmed that the requested population increases would

not impair or infringe upon inmates' rights.

. Accordingly, it is stipulated and agreed that Section Ill, 11 D. 2 is modified to the extent that

the population capacity at the Medium II facility shall hereinafter be two hundred ninety-two (292)

and that after F Dorm is constructed the population capacity at the Medium II facility shall be three

2The dormitory referred to as "F Dorm" in the Settlement Agreement and in this Stipulation is now known as E Dorm on the Department's operational rosters.
2

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 12 of 54 PageID #: 96

hundred sixty (360).

II
I I

I !

All other provisions of the Agreement remain in full force and effect.

t1tM4 Dated:

If, l'(fg'

II : i

I 875 Connecticut Avenue Suite 410 .Washington, DC 20009

G. Glynn # 3800
As ·s. t Attorney General I 50 South Main Street Providence, Rl 02903
)
-vt

Approved and So Ordered:
Date: 8 ,/B;> /Cf'?
Lincoln C. Almond is now Governor of the State of Rhode Island

3

\ Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 13 of 54 PageID #: 97
0/J- ;£

)..,.
''· (

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

LEGAL COUNSE

~, NICHOLAS A. PALMIGIANO, eta!

v.
~"'~ ~ LINCOLN C. ALMOND, eta!
Of~' THOMAS R. ROSS, et al

,.,4}' 1 'l 11
.
~e1$!- Cot, 'qfl(/

JUN 3- 2002
DEPT. OF CORRECTIOI
C. A. N0.74-0172

v.

C. A. NO. 75-0032

LINCOLN C. ALMOND, et al

STIPULATION WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court For The District Of Rhode Island on July 15, 1994 (~copy is attached); WHEREAS, there have been recent population increases at the Women's facility (known as Gloria McDonald facility) 1 and Intake Service Center South ("ISC") facility which were covered by the Final Settlement Agreement; WHEREAS, Defendants have submitted a plan to increase the capacities in the Women's Gloria McDonald facility and the Intake Service Center South facility by reconfiguring certain space and usage in said facilities; Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995, further amended on December 20, 1996 and approved by the Court on January 3, 1997. (Copies of said Modifications are attached).

1 The Gloria McDonald facility was previously known as the Women's Jonathan Arnold facility in the Final Settlement Agreement.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 14 of 54 PageID #: 98

1', I

The Final Settlement Agreement, as modified in June 1995, provided in Section III, 1 D.3

that the population capacity at the Women's Prison Facility shall be one hundred twenty-

five (125) and was further modified in December, 1996 so that the population capacity at

the Women's Prison Facility (known as the Gloria McDonald facility) was increased to ·one

hundred forty-five (145). The Defendants now seek to increase the population capacity in

the Women's Division by eight (8) beds. Therefore, the total capacity for Women's

Division shall be one hundred fifty three (153) beds. The new configuration will involve the conversion of three (3) rooms. These rooms

are currently under-utilized and their conversion to living quarters will not impact

programming or programming space.

The

Final

Settlement

Agreement,

dated

March

18,

1994,

·:··

..

.
:

in

Section

ill,

1 D.4

provided that the ISC South population capacity shall be two hundred fifty-eight (258).

The amended Settlement Agreement, dated December 20, 1996 increased the population

capacity in ISC South to three hundred sixteen (316). The Defendants now seek to increase

the population capacity in the ISC South facility by forty-eight (48) beds. Therefore, the

total capacity for ISC S shall be three hundred sixty-four (364). The Defendants have now verified that the aforementioned increases would not be
detrimental to the infrastructure of the facilities and would improve prison management. Plaintiffs' counsel has inspected the facilities and confirmed that the requested population

increases will not impair or infringe upon inmates' rights.
Accordingly, it is stipulated and agreed that Section III, 1 D.3 is modified to the
extent that the population capacity at the Women's Gloria McDonald facility shall
hereinafter be one hundred fifty-three (153) and Section III, 1D.4 is modified to the extent

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 15 of 54 PageID #: 99

that the population capacity at ISC South shall hereinafter be three hundred sixty-four

\

'

(364), permitting total double ceiling in all modules.

All other provisions of the Agreement remain in full force and effect.

Dated: May 16, 2002

Attorney for the Plaintiffs
Ji:dlkzr=·
6618 31st Street, N. W Washington, DC 20009
Approved and So Ordered:

Attorneys for the Defendants
ZdwttJl~ FUchard B. Woolley,~
Deputy Chief Civil Division Department of the Attorney General 150 S. Main Street Providence, RI 02903
a~Cfi,.~\
Anthon::Cipriano, Esq. 'bt6 "-
Chief Legal Counsel Rhode Island Department
of Corrections 40 Howard Avenue Cranston, RI 02920

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 16 of 54 PageID #: 100
··'IJ3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMiyiANO, et al
V.

C. A. NO. 74-0172

LINCOLN C. ALMOND, et al

THOMAS R. ROSS, et al v.

C. A. NO. 75-0032

LINCOLN C. ALMOND, et al

STIPULATION WHEREAS, the parties entered into a Final Settiement Agreement dated March 18, 1994 and approved by the United States District Court For The District Of Rhode
Island on July 15, 1994. (Copy is attached): WHEREAS, there have been recent population increases in the segregation unit at
Medium Security (known as the John J. Moran Medium Security facility), which was covered by the Final Settlement Agreement.
WHEREAS, Defendants have submitted a plan to increase the capacity in the segregation unit of the John J. Moran Medium Security facility by adding an additional
overhead bunk bed in each cell. WHEREAS, Defendants have assured Plaintiffs counsel that any segregation
inmates who will be double celled will first be carefully screened to minimize any potenti~l for risk or danger, and any such double celling in segregation will be limited in duration to a maximum period of thirty (30) days for any single incident.
Now, the parties agree to the following amendments of the Final Settlement Agreement, which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in J1,1ne, 1995, further amended on December 20, 1996,

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 17 of 54 PageID #: 101

approved by the Court on January 3, 1997, and further amended and approved by the Court on May 31, 2002. (Copies of said Modifications are attached).
The Final Settlement Agreement, dated March 18, 1994, in Section III, , D. 1 provided that the John (Moran Medium Security facility segregation unit capacity shall be twenty- four (24) cells, single bunked. The Defendants now seek to increase the
segregation unit capacity in the John J. Moran Medium Security facility by twenty-four
(24) beds. Therefore, the total capacity for the John J. Moran Medium Security facility segregation unit shall be forty-eight (48) beds.
The Defendants have now verified that the aforementioned increases would not be detrimental to the infrastructure of the facilities and would.improve prison management. Plaintiffs counsel has reviewed the plan to increase said capacity and agreed that the
requested population increjiSeS will not impair or infringe upon inmates' rights.
Accordingly, it is stipulated and agreed that Section III, , D. 1 is modified to the extent that the population capacity in the segregation unit at the John J. Moran Medium Security facility shall hereinafter be forty-eight (48) beds, permitting total double celling

of the entire module.

All other provisions of the Agreement remain in full force and effect.

Dated: (tlb--..tv~'l

.3 -z..oo '? 1

Attorney for the Plaintiffs

Attorneys for the Defendants

~y(p:
AlvilliBrttein, Esq. 6618 31st Street, N. W. Washington, DC 20009

-;;k~(J;.~ ~J 1,~~({

Richard B. Woolley, Esq. #tcf5 Ol.
Special Assistant Attorney General Dept. of the Attorney General

. ' r$,..-,Swo~rui{t~hJcMea,in~S2tr9~ e0et3/· ,.'.

-

Esq.~ Anthony A. Cipriano,

Chief Legal Counsel

Rhode Island Dept. of Corrections

40 Howard Avenue

Cranston, R.I. 02920

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 18 of 54 PageID #: 102 Approved and So Ordered:
Ronald R Lagueux
Senior United States Judge
/fJ Date: .J(tr 3·

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 19 of 54 PageID #: 103 •
...
0030c 0029c

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al.
v.
BRUCE G. SUNDLUN, et al.

C.A. No. 74-0172
. .

THOMAS R. ROSS, et al. v.
BRUCE G. SUNDLUN, et al.

C.A. No. 75-0032

I. INTRODUCTION This case has had a long and complicated history1 . After an
extended trial in 1977, this Court declared that the entire Rhode Island prison system was unconstitutional and entered an extensive remedial order2 . During the next fifteen years, there were

1 ~ • .e...._g_,__,· the series of decisions variously reported as Palmiqiano v. Garrahy or Palmigiano v. DiPrete, 443 F.Supp. 956 (D.R.I. 1977); 448 F.Supp. 659; 466 F.Supp. 732, aff'd, 616 F.2d 598 cert. ~., 449 U.S. 839; 599 F.2d 17; 639 F.Supp. 244; 700 F.Supp. 1180 (1988); 710 F.Supp. 875 (1989); aff'd, 887 F.2d 258 (1st Cir. 1989}; 737 F.Supp. 1257 (D.R.I. 1990}. 2 Pa1migiano v. Garr~hy, 443 F.Supp. 956, 986 (D.R.I. 1977).

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 20 of 54 PageID #: 104
modifying orders, adjudications of contempt against the defendants (various state officials) and the imposition of sanctions. Most of the problems during those years were related or attributable to _.O.\'er_c__rQwding_in the _Fhgde Island ~rison system. In every instance, the Court found that the overcrowding had a serious deleterious impact on ·medical care and environmental health and safety and on numerous occasions, experts supported those findings 3
On January 10, 1991, Senior United States District Judge, Raymond J. Pettine, who had presided over this case from its inception, conducted a chambers conference with all the parties on the occasion of his transferring the case to United States District Judge Ronald R. Lagueux. At that time, Judge Pettin~ urged a comprehensive approach to the problems of prison overcrowding and, in a final order, stated: "Now is the time to institute safeguards that will forestall and hopefully prevent a .recurrence of the past frustrating, costly and devastating ills."
The parties have had a series of meetings during the. past two years and the current defendants_, Governor Bruce G. Sundlun and Department of Corrections Director George A. Vose, Jr., have begun a comprehensive approach to the solution of overcrowding problems in Rhode Island's prison system. Among other things, on December 3, 1992, Governor Sundlun. signed an Executive Order 4 creating a
3 ~. ~. Palmigiano v. Garrahy, 639 F.Supp. 244 (D.R.I. 1986). 4 No. 92-26.
-2-

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 21 of 54 PageID #: 105
Governor's Commission to Avoid Future'Prison Overcrowding and Terminate Federal Court Supervision Over the ACI 5 . This Commission was charged with developing a detailed action plan including legislative and policy initiatives for dealing with the state's prison population. The Commission was also directed to consider the creation of a permanent mechanism to maintain the ACI prison population within its capacity on an ongoing basis.
On February 15, 1993, the Commission issued a detailed report together with recommended changes in the Rhode Island criminal justice system and recommended legislation. The Rhode Island General Assembly, thereafter, enacted legislation providing for int:E!rmec:}iat_~ ~~nct~qns, ang a Crilllj,nal Just: icE! Over::;~gh~ Committee. 6
5 The "ACI," or Adult Correctional Institutions, is the common term for the entire Rhode Island prison system. 6 Title 12, Chap. 19, Sec. 23.1 et seq. of the General Laws of the State of Rhode Island provides for a wide range of intermediate punishments.
The second bill adopted by the legislature, Title 42, Chap. 26, Sec. 13 et seq., creates a criminal justice oversight committee responsible for coordinating policies of the components of the criminal justice system to control overcrowding in times of crisis. The committee would set annual goals, monitor developments quarterly, especially those related to potential overcrowding, and urge the adoption of appropriate and statutorily authorized steps to reduce overcrowding in a time of crisis.
-3-

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 22 of 54 PageID #: 106

The parties believe that these recent initiatives by the

defendants and other state officials are consistent with important

principles of federalism, create the potential for establishing the
ACI as a constitutional prison system, and may result in comple..tely

restoring authority over a constitutional state prison system where

it belongs, in the hands of responsible state officials. The defendants have recently discontinued the use of the Special

Needs Facility (also known as Old Medium Security) as a secure facility, and may plan to convert that facility into a reintegration facility, a facility designed to house a variety of prisoners and programs within the defendants' framework of interm~diate sanctions.
Because the parties are interested in resolving plaintiffs'

concernr-.about areas of possible non-compliance, in addressing

I'
proposals

that

defendants

might

have

for

modification

of

existing

orders, and in addressing the ultimate termination of compliance monitoring and the Court's active supervision of the remedial orders

in this cause, the parties hereby enter into this Settlement

Agreement on this 18th day of ~arch, 1994.

II. DEFINITIONS
A. "Adequate Programming" shall mean the level of programming being provided at the time of the notification of substantial compliance by the Monitors as provided for hereafter.

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B. "Decrees" shall mean the Order of the Court entered on August 10, 1977, Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977) and all subsequent Orders in this case governing conditions or

practices at the ACI.
c. "Defendants" shall mean the Governor of the State of Rhode
Island and the Director of the Department of Corrections. D. "Defendants' Counsel" shall mean the Attorney General for
the State of Rhode Island or his designee, the Executive Counsel to the Governor of the State of Rhode Island or her designee, and Chief Legal Counsel to the Departm' -e· nt of Corrections or his designee.
E. "Double-celling" shall mean the placement of two (2)

prisoners in a cell. F. "Existing Facilities" or "Facilities" shall mean the
following facilities housing members of the plaintiff class which are in existence on the effective date of this Settlement

Agreement. They are as follows:

Medium Security Facility (MED)

Special Needs Facility (SNF)

Women's Jonathan Arnold (Women's)

Intake Intake

Service Service

Center Center

South North

(ISC (ISC

SO) NO)

High Security Center Maximum Security Fac

(HSC) ility

(MAX)

It is understood that some members of the plaintiff class are

housed in ACI facilities not listed above. Those facilities are the

Minimum Security Facility, the Work Release ~acility (Bernadette

Building) and the Women's Work Release Facility (Dix Building).

Although those latter facilities are included in the various·

remedial orders of the Court, they have not been the subject of

population overcrowding concern.

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G. "Newly Constructed Facility" shall mean any facility housing members of the plaintiffs' cl~ss that is completed after the effective date of this Settlement Agr~ement and shall include additions to an existing facility.
H. "Plaintiffs" shall mean prisoners housed at the Adult Correctional Institutions.
I. "Plaintiffs' Counsel" shall mean Alvin Bronstein, Mark Lopez and other lawyers employed by the National Prison Project of the American Civil Liberties Union Foundatibn, 1875 Connecticut Avenuue, NW, Ste. 410, Washington, D.C. 20009.
J. "Substantial Compliance" shall mean that the defendants have generally fulfilled the remedial provisions of.the August 10, 1977 Order, as amended, and all subsequent orders of this Court, governing the delivery of medical, dental and mental health services; environmental health and safety cpnditions and practices; and, management, security and inmate activity issues. In the event that achieving substantial compliance requires the defendants to make any capital improvements,.alterations, or renovations, they may· achieve substantial compliance in the following manner. The· defendants shall prepare and submit to plaintiffs' counsel a written document which sets forth in detail a plan for the improvement, alteration, or renovation, the amount of funds required, the source of those funds, and a specific timetable for completing the work. If counsel for plaintiffs approve of the foregoing plans in writing, the defendants shall be entitled to a finding of substantial
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compliance from the date of such written approval rather than the actual completion of the capital improvement, alteration, or renovation. Plaintiffs' Counsel shall not unreasonably withhold
approval.

III. RESTRICTIONS ON OVERCROWDING

A. Areas not designed and built for housing prisoners shall·

not be utilized for the housing of prisoners. For example, prisoners shall not be housed in corridors, hallways, dayrooms, program space, office space, recreation space or general purpose

space. B.

Except as provided in Paragraph C of this Section III,

defendants agree· that they wi 11 not ass~_gn more ' than one person to. a

cell in existing facilities. Defendants may assign two prisoners to

a cell in newly constructed facilities provided that the prisoners

are not classified as maximum security; that such cells shall adhere

to the space· requirements as set forth in the American Correctional

Association Standards in effect at the time of execution of this
A~reement 7 ; and such cells allow prisoners direct access to toilet

and hand washing facilities without assistance from a staff membe~.

1 The refe Associatio

re n

nce Stan

in da

r

text d 3-4

is 126

t

o the (1991

)

Amer and

ican Correctional 3-4128-1 (1994),

copies

are

attached to the Agreement as Appendix A.

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c. 1. Defendants shall be permitted to double-cell some
prisoners in HSC, Medium, ISC NO and ISC SO, as detailed in Paragraph D of this Section III, provided that the specific conditions set forth in Paragraph Dare met. Units designated as protective custody units in those four facilities may be
double-celled. 2. Defendants shall ensure that sound classification
practice and principle are followed before deciding to double-cell any particular prisoner.
D. The designated maximum population capacities for the following respective housing areas shall not be exceeded, excep~ in the event of an emergency as set forth in Paragraph G.

l. Facility: Medium

Capacity: 288 Cells Double Bunked

576

288 Cells Single Bunked

288

24 Segregation Cells

Single Bunked

24

4 Medical Cells

4

.6 Medical Ward

_i

TOTAL;

898

The double-celling in this facility is conditioned upon the

installation of Two Hundred· and Eighty-Eight (288) beds to create

cells adaptable to double-ceiling. Such cells shall be divided

proportionally among the six (6) regular housing units and

double-celling is contingent upon each prison·er being adequately

programmed and being allowed ten (10) hour.s out of cetl time daily.

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2. Facility: SNF {Only if used as a secure facility)

Capacity: A, B, C Dorms with 54 Inmates Eac·h 162

D Dorm

32

A Honor Dorm

20

Cell Block CBS

20

Cell Block DCB

__1_6

TOTAL:

250

The population capacities above are conditioned upon the

defendants completing renovations to the following: D Dorm toilets;

additional showers in Dorms A, B and C; toilets and showers in A

Honor Dorm, all as called for in Special Needs Facility Recommendations (Powitz Report of 3/12/92) 8 .· IfF Dorm is

constructed, capacity can be increased to Three Hundred and Four

(304) (Fifty-four (54) inmates in F Dorm); if adequate toilet

fatilitie~ and ventilation are installed in E Dorm, c~pacity can be

further increased to Three Hundred. and Twenty-Four-(324) (Twenty

(20} inmates in E Dorm).

3. Facility: Women's

Capacity: Beds

106

Segregation Cells

___.i

TOTAL:

110

If exhaust fans are installed and toilet areas are repaired as

called for in Women's Division Recommendations #2 and #3 (Powitz

Report of 3/12/92) the capacity may be increased to One Hundred and

Twenty-Five (125}.

8 All references to Powitz Report are to a report and recommendations made by Robert Powitz, the defendants' environmental health expert. The report dated March 12, 1992, is attached hereto as Appendix B.

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4 . Facility: Capacity:
TOTAL:

ISC South 72 Cells Double Bunked 72 Cells Single Bunked 24 Segregation Cells
Single Bunked
8 Medical Cells 10 Bed Medical Ward

144 72
24 8
_ll
258

The population capacities above are contingent upon the

following: a) limiti~g the ·use of this facility to confine pretrial

detainees and convicted prisoners but only for a maximum of

One Hundred and Twenty (120) days after sentencing (except

for protective-custody prisoners permanently assigned to ISC). Pretrial detainees shall be separated from convicted

prisoners;

b) double-celling only up to Fifty percent (50\) of the

cells in each module'; c) each prisoner except those identified in Section III D(4)(d) (as stated below), shall be allowed Six and a Quarter {6.25) hours out of cell time daily; d) each protective custody prisoner who is sentenced and classified shall be allowed ten (10) hours out of cell time

daily;

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Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 29 of 54 PageID #: 113

e) implementation of upgrade corrections to ventilation system as called for in ISC South Recommendations #1 and #4 (Powitz Report of 3/12/92). If these contingencies are not complied with, all cells must be single occupancy for .a total capacity of One Hundred and Sixty-Eight (168) (exclusive of medical beds).

5. Facility:

ISC North

Capacity:

392 Cells Double Bunked

1..B..i

TOTAL:

784

The population capacities above are contingent upon the

following: a) limiting the use of this facility to confine pretrial detainees, and convicted prisoners but only for maximum of One Hundred and Twenty (120) days after sentencing (except for protective-custody prisoners permanently assigned to ISC}. Pretrial detainees shall be separated from convicted

prisoners; b) each prisoner, except those identified in Section III, I?t?J!~) J.~_§j:ated below), shall be allowed Six and a Quarter (6.25) hours out of cell time daily; c) each protective custody prisoner who is sentenced and classified shall be allowed ten (10) hours out of cell time

daily.

6. Facility: Capacity: TOTAL:

HSC

48 Cells Double Bunked 96

24 Cells Single Bunked 24

24 Segregation Cells

Single Bunked

24

4 Psychiatric Cells 4 8 Bed Hospital Ward _a

156

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The double-celling in this facility is limited to protective

custody prisoners and conditioned upon the installation of

forty-eight (48) beds to create cells adaptable to double-celling.

Each prisoner being double-celled shall be adequately programmed and

allowed ten {10) hours out of cell time daily. Under no

circumstances shall maximum custody prisoners be double-celled at

this facility, except those housed in the protective custody unit.

7. Facility: Capacity:
TOTAL:

Maximum Cells Single Bunked Segregation Ceils Single Bunked
Bed Medical Ward

411 39
__l.L
466

If the ten (10) rear cells are renovated to contain sufficient natural light and ventilation to meet APHA Standards 9 in effect at

the time of execution of this Agreement, capacity can be increased

to Four Hundred and Seventy Six (476) inma~es.

E. Dormitories used for the housing of prisoners shall provide

each occupant with at least twenty-five (2S) square feet of

unencumbered floor space. This space requirement shall not include

space encumbered by a bed or locker nor shall it include any

available program space or dayroom space. These limitations shall

9 Standards of the American Public Health Association.

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not apply to newly constructed minimum security and work release facilities and newly constructed minimum security and work release facilities would be subject to the American Correctional Association Slandards in effect at the lime of execution of this Agreement. A copy of those standards are set forth in Appendix A.
F. In entering into this Settlement Agreement, the parties acknowledge that the safety and security of prisoners and staff are a matter of mutual concern. The parties further acknowledge that certain conditions and eventualities ~re within the contemplation of the parties. These incl~de the possibilitt that the Rhode Island jail and prison system may experience a substantial increase or decrease in its population; that the rate of crime or conviction within the State of Rhode Island may continue at its current rate or increase or decrease substantially; that the incidence of parole may increase or decreas~ substantially; that the cost of construction of new facilities or renovation of existing facilities may increase or decrease substantially; that substantial difficulty may or may not be encountered by the Rhode Island Department of Corrections in attracting and employing security and non-security staff; and that substantial construction delays may or may not occur with respect to the renovation of existing units or the construction of new facilities, units or additions thereto. A condition or eventuality within the contemplation of the parties does not constitute a changed circumstance.
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r'-·'. Paragraphs A through E inclusive of Section III shall be

enforceable in any tederal or state court of competent

jurisdiction. The defendants shall comply with the population

capacities set forth in Section III of this Settlement Agreement

except in the following circumstances:

1. Any provision establishing population capacity or

limits may be suspended, even in the absence of an emergency, if the

suspension is temporarily necessary because of actions by members of

the plaintiff class or if suspensions are sporadic or isolated in

nature, provided that the suspension lasts no longer than five (5)

consecutive days. Any such suspension, including the reason

therefore, shall be reported to Plaintiffs' Counsel as promptly as

is reasonably possible following the commencement of the suspension.

2.

a) In the event of an emergency that makes

substantial compliance with any of the terms of

this Settlement Agreement impossible,

extraordinarily difficult or unfeasible, it may be

necessary to suspend temporarily, even beyond five

(5) consecutive days, any provision that

establishes population limits of this Settlement

Agreement. In such event, the Director of the

Rhode Island Department of Corrections shall ·

formally declare a state of emergency, and, as soon

as practical but no later than five (5) days after

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Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 33 of 54 PageID #: 117
such declaration, notify Plaintiffs' Counsel of the reasons that justified the suspension of any provision that establishes population limits of this Settlement Agreement. The defendants shall also notify Plaintiffs' Counsel of the expected duration of the suspension and the plan of the defendants to restore full operation of the Settlement Agreement. b) For purposes of this Settlement Agreement, an emergency is defined as a circumstance caused by a riot, fire, hurricane or similar event not caused intentionally by the defendants, their agents, or employees, that makes substantial compliance with the provisions that establish population limits of. this Settlement Agreement temporarily impossible, extraordinarily difficult or unfeasible. Construction delays or labor disputes not caused intentionally 9r reasonably anticipated by the defendants may constitute an emergency, but legislative, executive, or administrative policy decisions not to appropriate funds or allocate resources to the housing of prisoners shall not justify the declaration of an emergency. In addition, legislative or judicial decisions regarding sentencing shall not justify the declaration of an emergency.
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c) In the event that the defendants seek to continue emergency suspension of any provision that establishes population limits of this Settlement Agreement for a period of time greater than ninety (90) days without the agreement of plaintiffs' counsel, the defendants may seek the Court's permission to suspend any provision that establishes population limits of this Settlement Agreement. In any such motion, the defendants bear the burden of persuasion. 3. If the plaintiffs' counsel believe that any suspension o~ any provision of this Settlement Agreement that establishes population limits or the duration of the suspension is unjustified, unreasonable, or taken in bad faith, they may request appropriate relief from the Court. In such event, the plaintiffs bear the burden of persuasion.
IV. MEDICAL, MENTAL HEALTH AND DENTAL CARE-
The defendants shall at all times maintain an adequate and constitutional system of medical, dental and mental health care. They shall employ sufficient staff to maintain a primary care system
I
with a 'focus on preventive health care, health maintenance and prospective management of chronic disease.
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V. ENVIRONMENTAL HEALTH AND SAFETY
The defendants shall at all times maintain environmental health and safety practices and conditions that are adequate and constitutional.
VI. MANAGEMENT, SECURITY AND INMATE ACTIVITY
The defendants shall at all times engage in practices and maintain· conditions regarding management, security and inmate activity that are adequate and constitutional.
VII. INDEPENDENT MONITORS
A. The parties hereby designate Dr. ~ambert King and Robert Powitz as independent monitors (Monitors) to observe and report upon substantial compliance with the terms of this Settlement Agreement. These Monitors are experts in. the areas of medical care, environmental health, and fire safety. The Monitors shall observe and assess substantial compliance with the terms of this Settlement Agreement, report to the parties about such substantial compliance, and give advice and recommendations to the parties.
B. In carrying out their· duties, consistent with legitimate requirements of security, the Monitors shall have the following:
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l. unobstructed Access to staff, inmates or nther knowledgeable persons for interv1ews or written communication regarding conditions at the facilities covered by this Settlement Agreement. Such interviews or other communication may be held in private, and may be held in confidence by the Monitors. At their discretion, the Monitors may divulge the content or nature of such interviews or communications to the Director of the Department of Corrections and to Plaintiffs' Counsel and Defendants' Counsel;
2. complete and unobstructed access to relevant files, records, reports, memoranda or other documents within the defendants' possession or custody for purposes of measuring substantial compliance with the terms of this Settlement Agreement;
3. unobstructed access to tour and inspect the institutions.
C. The Monitors shall not be subject ~o dismissal except upon agreement of all parties or by the Court upon motion of one of the parties and upon a showing of good cause.
D. The reasonable costs ~f the Monitors shall be borne by the Department of Corrections.
E. In the event that either Dr. Lambert King and/or Robert Powitz resign, become incapacitated, or for any other reaspn cannot perform their duties, the parties will mutually select a substitute Monitor or Monitors.
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VIII. MONITORING AND COMPLIANCE
A. In no event shall a determination of substantial compliance be made if exceptions to substantial compliance are the result of willful or intentional actions by defendants.
B. 1. Commencing on or about March 18, 1994, the Monitors shall conduct periodic inspections and prepare reports detailing the state of defendants• substantial compliance with the provisions of this Settlement Agreement. The Monitors shall complete their initial inspections and prepare their initial reports within three (3) months of their appointment. In the event that the three (3)
'
month period is unfeasible due to scheduling problems, the time period for the Monitors to submit their reports may be extended by the agreement of the parties, but in no condition shall i~ be extended beyond six (6) months.
2. The periodic inspections of the Monitors shall continue until they notify defendants• counsel and plaintiffs' coun~el that the defendants are in substantial compliance as defined in this Settlement Agreement.
C. Plaintiffs' Counsel will review the state of substantial compliance .under Section VI, Management, Security and Inmate Activity within three (~) months of signing this Settlement Agreement, and resolve any compliance issues in these areas directly with the defendants.
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D. Incidents of non-compliance do not necessarily prevent a finding of substantial compliance. The determination of substantial compliance shall take into account the extent to which exceptions to substantial compliance are sporadic or iso-lated in nature, are unintentional, are the temporary result of actions by the members of the plaintiff class and are promptly and properly addressed by corrective action.
E. This Settlement Agreement shall be submitted to the Court for its review and approval pursuant to Rute 23 of the Federal Rules of Civi 1 ·Procedure. The parties shall r~commend to the Court a method of complying with the notice provisions of Rule 23(d) and
(e).
F. 1. The parties shall have the opportunity to challenge the determinations of the Monitors, pursuant to Section VIII; Paragraph B of this Settlement Agreement, and plaintiffs' counsel, pursuant to Section VIII, Paragraph C of this Settlement Agreement. The Court shall establish a procedure, if necessary, by which any hearing on that issue shall be conducted.
2. Upon review of the evidence, the Court will make a determination whether the defendants are in sub.stantial compliance.
G. Upon receipt of the Monitors' reports of substantial compliance, the defendants shall file with the Court a motion to dismiss this lawsuit and dissolve any outstanding Decrees in Palmigiano v. Sundlun, except the provisions of Section III of this Settlement Agreemen~ (Overcrowding Restrictions).
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H. l. For the first four (4) months following the Court's approv~l of a determination of substantial compliance, as set forth above, the defendants shal~ forward to plaintiffs' counsel monthly reports and supporting documentation detailing the status of defendants' compliance with Sections III, IV, V, and VI of the Settlement Agreement. The Director of the Department of Corrections shall serve on plaintiffs' counse~ a certificate attesting that the contents of the reports are true and correct, and that the documents submitted in support of them are true and accurate copies of defendants' documents maintained in the ordinary course or operations of the Department.
2. The first such report shall be served on plaintiffs' counsel one (l) month from the date of the Court's approval of the substantial compliance determination.
3. The obligation to file monthlY, reports under this section of the Settlement Agreement shall conclude four months after the date on which the Court approves a determination of substantial compliance.
4. Plaintiffs' Counsel shall be afforded sufficient access to the institutions and to the plaintiffs to determine the accuracy of the representations contained in the reports served by defendants.
I. At the end of the four (4) month period set forth in Section VIII, Paragraph H and provided that the defendants demonstrate continuing substantial compliance, the parties, without
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further recourse to judicial proceeding, including appellate rev1ew, shall execute and file a stipulation dismissing this lawsuit and dissolving any outstanding Decrees in Palmiaiano y. Sundlun, except the provisions of Section III of this Settlement Agreement (Overcrowding Restrictions). The provisions of Section III of this Agreement shall survive the aforesaid dismissal and continue to be enforceable in accordance with the provisions of Section III, Paragraph G.
J. Nothing stated herein shall preverit plaintiffs from mdving the Court for additional relief or further relief based upon a claim of non-compliance, including a failure to file appropriate monthly · compliance reports and supporting documentation.
IX. PERMANENT STATE PRISON OVERCROWDING CONTROL MECHANISM
A. One of the stated purposes of Executive Order No. 92-26 creating the Governor's Commission to Avoid Future Prison Overcrowding was to terminate ~ederal court supervision over the ACI by having the Commission consider "the creation of a permanent body the purpose of which shall be to maintain the prison population within capacity on an ongoing basis."
B. The State of Rhode Island has created a permanent agency, body, commission or other mechanism (hereafter "State Mechanism") with the authority and power to control prison overcrowding. Accordingly, the par·ties agree that this case, specifically the
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provisions of Section III (Overcrowding Restrictions}, shall ue retired and placed on inactive status in this Court provided that the following conditions are met:
1. The State Mechanism shall adopt the specific population capacities and restrictions set forth in Section III of this agreement as its own capacities and restrictions.
2. The State Mechanism shall have the authority and power under state law to enforce the aforesaid population capacities and restrictions effectively.
C. 1. The Department of Corrections shall provide to plaintiffs' counsel a quarterly report, in the format of the current "ACI Daily Population Report" form, detailing the actual population of each unit of each facility in the ACI on ·the last day of the quarter for a period of five (5) years after the Court enters the dismissal order, referred to in section VII+, I, above. 10
2. Each report shall include a signed certification by the Director of the Department of Corrections attesting to the fact that the. aforesaid population capacities and restrictions are being adhered to.
Io This 5-year limitation shall only apply to the defendants'
obligation to provide quarterly population reports. It does not apply to the defendants• obligation to maintain the population capacities and restrictions referred to. in Section III of the Settlement Agreement.
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3. Plaintiffs waive any attorneys• fees and costs incurred by

them for reviewing these quarterly reports, pursuant to Section IX,

Paragraph C of this Settlement Agreement. No other fees or costs

are waived in this agreement.

D.

In the event that the population of any facility in the

ACI exceeds the capacity limits of Section III for five (5)

consecutive days in a non-emergency situation (Section III,

Paragraph G), the Director shall notify plaintiffs' counsel of that

fact in writing.

E. If the requirements and conditions set forth above in

Section IX, Paragraphs A and B are being fully observed and the

State Mechanism exercises its authority and power to enforce the

population ·capacities and restrictions effectively, the provisions

of Secti~n III of this Settlement Agreement shall not be enforceable

in this Court and· plaintiffs agree not to bring any action or

proceeding to enforce said provisions.

F. In the event that the State Mechanism is disbanded or

discontinued, or loses its authority and power to enforce the

aforesaid population capacities and restrictions effectively, or

fails to exercise its authority and power to enforce the population

capacities and restrictions effectively, the provisions of Paragraph

E of this Section shall be null and void and plaintiffs shall have

the right to seek enforcement of the provisions of Section III.

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X. MISCELLANEOUS PROVISIONS

A. In entering into this Settlement Agreement, the defendants

do not admit or concede that any rights of the plaintiffs under the

Constitution or under the Decrees, are currently being violated at

the ACI. Similarly, the plaintiffs do not make any concessions, now

or in the future, with respect to inmate hou~ing at the ACI except

those expressly provided for in this Settlement Agreement. In

addition, the plaintiffs and defendants are not waiving or

relinquishing any rights that they may have under the Decrees unless

expressly set forth in this Settlement Agreement.

·B. The plaintiffs shall not seek additional relief in

connection with this lawsuit except as expte~sly provided in this

Settlement Agreement. This paragraph shall not preclude the

plaintiffs from seeking to recover reasonable and necessary

attorneys~ fees, expenses, and costs incurred with negotiation or

future enforcement of the Settlement. Agreement.

C. This Settlement Agreement shall not be admissible in

evidence in any proceeding or trial other than for the sole and limited purpose of enforcement .of this Settlement Agreement. Rules

407 and 408 of the Federal Rules of Evidence are applicable to this

Settlement Agreement.

D. The defendants shall notify all staff at the ACI facilities

of the terms of the Settlement Agreement.

E.

1. If this Settlement Agreement is approved in its

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e~tirety by the Court, then this Settlement Agreement and the Decrees of the Court constitute the entire agreement of the

plaintiffs and defendants. 2. If this Settlement Agreement is not ap~r~ved in its
entirety by the Court, then this Settlement Agreement shall be null

and void.

F. This Settlement Agreement is a document which all parties have negotiated and drafted. Since all parties participated equally

in drafting its terms, the general rule of construction interpreting

a document against the drafter shall not be applied in future

interpretation of this Settlement Agreement.

G.

The Settlement Agreement shall be effective on.the date

of its execution.

Plaintiffs

Al i Mark Lopez, Esq .. National Prison Project of the American Civil Liberties Union Fdn. 1875 Connecticut Ave, NW, Ste. 410 Washington, D.C. 20009 (202) 234-4830 Date: March 18, 1994

oruceern~r. ,SStuantdeluon f Rhode Island
~ ~ ac te e .lo, ~ use Rhod~~-~"'2?.903
George A. Vose, Jr. Director of the Department of Corrections State of Rhode Island 40 Howard Avenue Cranston, Rhode Island 02920 (401) 464-2611 Date: March 18, 1994

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Respectfully submited, Attorneys for Plaintiffs

Attorneys for Defendants

Mark Lopez, Esq. National Prison Project of the American Civil Liberties Union Fdn. 1875 Connecticut Ave, NW,
Ste. 410
Washington, D.C. 20009

Attorney General

E~ ~bthhMur2dlokctkteM h:yke-

~
rs/

Executive Counsel to the

Governor Bruce G. Sundlun

State of Rhode Island

State House

Providence, Rhode Island

Date: March 18, 1994

Anthony A. C prra o Associat Director and Chief Legal Counsel Ellen Evans Alexander Deputy Chief Legal Counsel Department of Corrections 75 Howard Avenue Cranston, Rhode Island (401) 464-2246
Date: March 18, 1994

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•

3-41~8

~ Auaust 1991. Sinafe cells are required for IDmates assJped 1o maximum and dose custodJ. All cells ID •hlcb Inmates are coonned coororm wltb tbe foUowlllt requlremeata:
I. There must be 35 square feet of uneacumbered space for tbe slnale cell ocrupanL 2. Wbea coannement exceeds 10 boun per day, tbere ls atleiSIIO square feet of total floor
space for the occupanL 3. "Uneacumbered space" Is usable space lhatls aot encumbered by furalsbln1 or llxturts.
At least one dimension oftbe unencumbered space is ao less tbaa sevea feeL Ia determiD· Ina unencumbered space, aU fixtures must be ID operational position and must provide the following minimum areas per person: bed, plumbing fixtures. desk. and locker. 4. Supervision Is consistent with standard 3-4170.

COMMEN"r. This st:lnd.vd encourages design Oexibiliry and c:reativily by rel:lting ccU size to the amounc or unencumbered or Cree sp:ICC provided.

3-4128-1 Ci:d~ugust 1991. Single cellsfrooms and multiple occupanc7 cellsfrooms may be used for
.. boasinglamata Ia medium/minimum custodywhen the classllicatioa system, ceiL'room size,
aad level ofsupervision meet the followlnl requirements:

1.

Number of Occupants Amount of Unencumbered Space•

35 square fed per OCCUpilDI

2-SO

•"Unencumbered space11 ls usable space that Is notencumbered by ruralsbings orfixtures.

At least one dimension of the unencumbered space is no less tbaa seven feeL In determiD·

Ina unencumbered space Ia the ceO or room, tbe total square footaae is obtained and tbe
square rootage or fixtures and equipment Is subtraded. All fixtures and equipment must

be Ia operational position and must provide the followinl minimums per person: bed,

plumbing fixtures (if inside the ceiUroom), desk, locker, and chair or stool.

• •Sleeping area parliUonsare required Ifmore than four people are housed in onesleeping

'·

area. .

2. When confinement exceeds 10 hours per day, there Is at least 80 square feet or total noor

space per occupanL

3. Housln1ls in compliance wich ACA standards 3·4131, 3-4133, 3-4134,3-4137, 3-4144,and

3-4282.

4. Medium security Inmates housed In mulliple occupancy cells/rooms require direct super·

vision. (See 1lossary for definition or direct supervision.)

Aclassification syslem Is used to divide the occupants Into groups that reduce che probability. or assault and disruptive behavior. At a minimum, the classification system evaluates the· following:

• mental and emotional stability
• escape history

.,.. ' \

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 47 of 54 PageID #: 131
R. W. Powitz & Associates, P.C.
P.O. Box 32365 Detroit, Michigan 48232-0365
(313) 972-4580

To: From:

A. T. Wall, Esq., Assistant Director Rhode Island Department of Corrections;
and,,. Mark J. Lopez, Esq., Staff counsel American Civil Liberties Union Foundation National Prison Project
Robert w. Powitz~ Ph.D., M.P.H.
consulting Sanitarian

Subject: Environmental Health and Safety Evaluation of Rhode Island Department of Correction facilities: Intake Service center; Special Needs Facility and Women's Facility

Date:

March 12, 1992

On March 3rd and 4th, 1992, an environmental health and safety evaluation was made at'the above named facilities within the State of Rhode Island institutional complex. This evaluation was conducted at the request of the State of Rhode Island and the ACLU Natio~al Prison Project. The purpose was to recommend the maximum inmate population carrying capacity of the facilities and make whatever comments on environmental health and safety as appropriate.
Accompanying this consultant during the tour were Mr. Kent Grissom, Sanitarian for the Rhode Island Department of Corrections and Mr. Mark Lopez, Staff counsel for the ACLU National Prison Project. The writer would like to thank Mr. Grissom and the facility wardens for their cooperation, candor and kind hospitality.
The evaluation consisted of an on-site audit supported by nondestruc~ive sampling of the environment to verify the findings. All sampling was conducted with pre-calibrated equipment in accordance with accepted protocols. The findings of the audit were compared against established standards: the American correctional Association, Standards for Adult Correctional ~nstitutions, Jrd Edition, and, the American Public Health Association, Standards for Health Services in Correctional Institutions, Second Edition. The standard which most closely reflected the prevailing conditions was used in determining population density. By enlarge, the
recommendations reflected in this report were by consensus of all parties in the audit tour.

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 48 of 54 PageID #: 132
..
maurtsaeenrnacomeMddnodemipaitrcnbefmagyTlaireorchesayaneaeatrdnudtrceieh.reoodneoaunnosuspsvdTsowtiaihnshnhteteuiagiarorovaetvfnennaoe;nabsoybld.edtoeeihadgneseslnogTuleupahrcmssfpevfoooriaamoeccpricdfnotepaositnlralarefdtwieritatneie,eitdceoareiet.dosfishl.naiaatstdphiebrpeiaqeeessn~uadoarwametruemdaeeeldreyentvipdotaplaialrnt·uwbnoieaetoaternrnewecesdtveeesilwxdelc-hcwham··ieaef.cnpdathd·etiunirlfpoteIoarndtloialnapoleitllewosydlr Intake service center: mavi1tprnroutoalP1nhceeye7oecnof6areeccslepvrs8tiitnaeto,ngnuaiiienhcftpmtcctbiillwisoiiiaeunttraToenpevyaimh,mcalhnmnaldbeviotvedlnfebcetolaleocnayehdehebdyStrnnetitfreyetnetooeiiitalshrggarsdsiualnraedmleut.patdaaathecdrnphsihsnitnsoaanctrmagaisdiTesydynoteoesgdeioihsaxdldnloe.npkeeaisril.daqeendoepmddapudsvoe,aHasycptyaoarrecl.umuTorteasttfeneobewhatnfrdshoeltx.oertodpie.ydoimeheilrrvulauoTmf.nettae.cgcwlwehcrttteeaheaw,esiIosi:stpolniroe:tpDtlntaapchnt.lhsphoayepgrruaslepfesoekvpulslikteuxeaeTaeymx7hareal.i0thsereaammbtSi1teemnlhoteci2enoaafindmansetorfuttttgvecerTvel.lnnidomyisllvlwehitpnvmaycqselerpgyoteieoylo.hteosfs3shfhvcertrcC5t2iohuaieocerea4nf1doetmmeuefarrlf3umnepeelctt0icrstiwa.shhdeea.seshnhl.pieehrsaiiqtlocxinonrgylywhc.wacoshsThThaweaeiaeishtshhpvrtdruwlaeiuei4eeeuelnsesaavp4rmisrrmqtfcgte,pewm.hauahclifikeaaeyicwdtapnwentalp.i.iiTmuarelrasatnslfaseapeaduhsiiqwctasctkrei~bi.masyecsaeqiAet.weudottyiuoslhwirgauwheouaoaeiiarlholwntainnsdadlestAe-stft dwthltttpaophwaooeynaeefuesgosdirrmniliitgeuoedhuidennnnTdrteReaneoaeimshry.taentemveapmeastawdtaohovunoWloeisirdidnpesslthdtfutah.p-eieoselnrsbdleoenraiil1lsrecftceoyiv.Senneswc5,stimomenahnhlnasoosohaagea-srkpuuotfsreietettmneulntoshargdorsoosiuesitronaokfnlhytiiredneahdeslecaraaestefrsdyemylad.dinefylcnargloqnaaoyiialtueroclstairdamiehnimscrttdlnepeeietitesaeoaniitsn·mdrvcitsssotteaeeuir,sfearytisapeyc.td.wrpebhsrteulvoeeitieyrSoterdsdwihTmhirsnfaciyoehaa,gnnatwlepocdlenort-pettridedhdtrhrhlrhs.oeeieeeabettsxiaahyrieriridterdgdem.ejdnicdronclataeeiewyitenydInelohngl.lalalosm.yatrsvthnueaoaEadrfetaiiiraennvlPaleacdsoadedheeacbdtelyrtcostlosqhliheoceevruooeknnvalaiuotrlneoatetrmoseydedlstl dvncsprioeosantwectaerdislTeeaedshtl.et,eersdiwcsi;nittefahitdhrimrbaefnacodrirsyr4c5tluhe(leswafshttci.iotocshhmqna.fnowwrasptisilexlorbfafurietnenhedlmoytesareagtdeope.iatnermmct taaaaTtjnoebhdserlewtrroaeointtonhadmolvsrameiitnssioopdkniiinprv)agoidtoowuwrrlaaayyssl

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 49 of 54 PageID #: 133

wfcuiaphinaonrnaieomsfcrfiiegingimrnrlsifhmaTiTusetoTtmtahncshthyetiteif.eci.neraoaowdmittibmnnoselateortiatewhiletlknehaesiedrt;ettnehsiiqoovtasiruhtnnaopniadeondimrdltruarhieacdaotesotyoljtaohmsumororrsweomsywtotheihiemnanitdrecotrdsihenoigcaasgtrrhonhreipaaedgraeabosrirssinneebditboaav.thaoeittereevirinsrnan.seetcgolecysTrTsmeofhirtnshsfpeoaaseurrmblireelrblenassiloantessehniwuhssde'raefiesiondcsntsdrfhhoao.eteoallhhclwaparthtrneiobTioPoorduouhutsnigetndescothecarorokafptcin·lideupifoo.onoetenwnpsdrtt.ifBrhnlooooeyegadfflr

tTadhnihandenirnfeog2o0wFdreaossepoedmcrnioonontgfedeacsvoctiifiidolneintnthaicweeecassooinnwefmtxeivnrcaeeutereopmesutxiisnotir,snoeamptlceh.ereelayntTftior~roaaolnylde.iazpnteredemap.npaderrawTatitheouelrnleksmwitaawcsiheniretneani

and ned. safe
less

wwedttcoseaoalhhoxainunxbhapmmenecddrshijecorieheearinhespksiwctausngefysAaitteshosgtiristtraclvvefohir.tvtohoevrheoinrionveoon,oencdgsenodurnaqTsomtisgitstaaswhbshie.otllteprdrhaitivirifpsvtehncenertsheprdioieegorneaomdpsxiicgpatnnirsitkhensomeigsaa,hidemoisotarincwrscnieitle.ftusnhealaaot·iperlscehdvooyealdhaknedeificem2icqtlertdirpo8hoout.oei0irafnhastwsts0esesdthihcm.eapedsermlstasaon.ewhkmrAeusaalaaeecaagainustnlamtkhish.udeOpueeoipiuisgponnntttepahileeqt.TadysetrdeihiirasnvedborloitsneoyaiaTirnevnmyoianhedrnet,tled.vhirnmnsita~etftrnhiohSefeoincgvelrmtdpetmraaihrvaunnoietdiaeckcsgsvinnoteoatieaeogotcdkfnhrictcrerneiewhsoebtllad.iecyinsaoetvnnunhhitfrygeektieepetuTgndaenrharuhnrkiet.wnensfwedorpiideaata;icsddwftcptrilhthThiaioooehsneoihionorwnhennnngeetrt

Recommendation; cdloiaicwtulrennoaioefinmimsyfrrmnitaiscahldraciaaruetmtiticiodtiIinetnltIheooneiaasttmopaqhgrtsnttnyohuisoiihaiosfsaafpsnbe1antastpgloe5a1ncmeelmbrdtiycrefoteney3sdpeot6rerkuh.lecmsantiiesulchytlevisqnoocneiseolatmnddhilm•otficeci•eaehlfmfaadnlartneoitutoseldebhruetndIdeslleasad2eeidisnnd4fman:apad.idaitgtnnnaniyilioioddcandetntanTedhgsmerrttrehtsaoehahteahqiohactadteesttumihnhesauhsadas.apwcstaatmmertneaoitopocpnhuaoIpu3deoanlcnuoeod5nunpdnteoselhvtuapIecrefnieindoltndttcoraadtm.hdouvcfdastbaermniirpekaqyletoeamrenybiem.onacoerltemsoooatrisnroneoeliogedcni,ftavodsmrekrlaemttyiveultl.hitsihnaionypeopcciseetngafTpfoeoenrdcieacnrhsncetecucaiidhionatsmeentdieemiihr.snteonbareiiapqtencoeftbenlruyochTnoseoeralehunstdotlt1aeiesho.lllefn6drolsytw8esps.luaiat2ttTaatnwhhct5.hcihiiogen0keosere,

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 50 of 54 PageID #: 134
. '

the

However, I should emphasize that under no circumstances facilities capable of safely housing a population of 336.

are

Here are the minimum requirements to begin double celling:

wtta1uhn.iredlnloeinOvxrtheepadratkiuumwecsteiizatvhentdeihnnienet tx-hgscherteaaiullctlslietecvlsvle.sepn.nrtteRislsAeaswpntuilriaoatechnierlabotdhysseeseferclepseudecrereatfsnooidhrgraanrstpidhenewodgruamlrptdeihltaebctgeeloarse.tiihanrc.toseitvrnaeTtlralaihekniidgers

on the air intake vent and thereby increasing

to direct the circulation.

flow

to

the

back

of

the

cell

In addition, humidification must be system and the day room exhaust needs smoke and body odors.

provided in the to be .enhanced

air to

makeup remove

2. ten

out of cell hours per day.

activities should be increased to Although this would limit personal

a minimum of unencumbered

space within the day rooms, the out of cell activities would offset

the more crowded conditions if the cells were left unlocked. By

ttHdtwiooomoiiwnleeceg,veteasrlt·dl,h'sdiiniisotf,niaonbtnahaaadeslrdeesicattaieinoselinulrtsiaat(lraowy~retlforteeaoiclfiteiololterittrsfieuueamsrscevai,mielniiuotlslriltaoeinbcsnkecseewtpd.arooludlvliudindrgienndgtowbt oyobuacetodndonvifeteierocdtnieendalg.ll

wabwti3hnet.iia-llntpcllhreehohS1lava5ilvnbvideucecfenetotda.knoscstdqhcs.uioee.ts,sieostuhdnnhtusaeoirntsibcnteurbhgcemeeoadbmdd.edoierenusesgTbdkelhemsseasprncaeeadetnfceloeetrlrivieaaweo,llnc.sictahtudchipOadneaninntlftciybhloyoeen,ooanstrcleeh:eeelnilitnlghnsmweheeatiwiotdthnetiohgltlaouetntrbeeeasnienthdmrtlasiaenmatisctonseee

vis4moe. pntrthoivPlaaerttdoipvotriondeepraiefnrmoaorttivhoaeendceocqdanuindsahetbeneswmactaaeaskhrefri-rniuoeqpmdartooihoruemtwddinuitsherheiinndwgstahssteehorivnkbqiintecgohpmeteinormdafeitfiasoi.cendi.lTitohyer

5. Mak~ immediate modifications in the secondary spread of infectious diseases.

infirmary to prevent Particular attention

should be placed on of a comprehensive

current inmate density and infection control program.

on

the

establishment ·

special Needs Facility:

of be

The Special Needs Facility has a this evaluation, the population was significant modifications made to

capacity of 250. 238. Reportedly, the ventilation

on the day there will system and

toilet areas; kitchen.

some

modifications

are

also

scheduled

for

the

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 51 of 54 PageID #: 135

A basement recreation into a dormitory similar facility.

and industries area in size to those in

will the

be converted rest of the

ccmielnioexgamncihetnfarteotiacdanrluistignsrzaerrseadnetidn.anisg.tntaeldary.aydT,reedqTmtscuhhpoeaeeetnerkxvdaiciettateucninprhotedtienslnaat,thataineonaddlntthfhheaoiwucsumeigflllahiiladtcriyoitgmylleidwtal,iyliaeenshvstpaaevasilneslsysearyimdivnw.pegcle.elreebsaepWFnwlaoe·icniewatdedhroiiwidnagngnrdawadtreheiielssea,l

TsacHh,hoopiwwasreorevheTbrealhrebse,amerdrlteoehoawwsremuititlrhishttaeoetcdriionyooniltnddaooeefisnrclpsseuasahltttlo-sealdwniwunrdee-gerasmsrraedtoctiscvollaeaeolnis;afndnmap1,nha:awd1atre5stespi.lcelniueonlAlliiagdnedrhxdgolthyiretpamiduoaiinsinatntonatrdDlv.iloeymersm,natiAtinAhl,ta.eat8riineoTeanndihsd.e.

Recommendations;

v1ipc\nori ozsmHvt.poa:i dnllWeloetehrdeeddnDi;noiDnrcdmooor;nmDr msoart0smrnudtAco,E,ti,i8loaedtnahtenseqduoracnectan;epottavhotcaoeiitlteiyeldetb;sota sfaeefnimtagdhechinsitsthl ioatfwddiadeeocrisrstimiloiaiattnrnyoeadrlyicvnsahesnhotnaawtbslieellreas_dt3bia2eo4irennen.

Dormitory A, Dormitory D:

B,
32

c and F:
inmates:

54

inmates each:

Dormitory AH: 20 inmates:

Cell Block DCB: 16 inmates;

Cell Block CBS: D~rmitory E: 20

20 inmates, inmates.

and

Women•s Facility: ueiswptnitnxemiosdcrtrtheeeaamripggnloTteloehfieaoteldht.nrheeWasamiploAstflaoymalcdtetceehhevnigola'laoisuintlotgiugFdystha.ia.mtactinhoeiidlenT.nIiah,ttskydeetieihtvkqhcseeiuahtrscaeacuhtnolneaeu,dnipnecsitrufesterowcthroeleaeeddossns,dt9op8aontcpavhaapieapnnnrretaodtawcxltitiilhthsmeyeiqasprustoeeeiafpelfnywmla1iieetcn12ranig00ettl0.,iio1twai8ynnAn0imdltlwbawttetihbhdeale~elsss bohToeeenaxxhfesccfcenehieraceasadeTnslnagrhaemsoeearhafekoogiiupeasnindresnmondpdfaturahtettorhesogeimsenriiegclhvcdee·eoehostliu,osrolsowicrinksnhniidgitegnchouawpatwnotrhnhednaecelastaatrnnnhetdesnnieqslvooseusfetl.eeiepsvnebhtiiepenusnomghhtrriioeodlrpuganoirrtutooysitlm.ovhaoisnetd.efTedlh7aseyvftTo(sathttwroteeeoemmitrrlocyep.eoietmlirrseraielenttTaaucshnraDtueeidcroswcenheadinaasii)ngss.lr

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 52 of 54 PageID #: 136
...

Recomm-endation;

Under present conditions the capacity of the building (110

inmates) should not be exceeded. The limiting factors include the

lack of ventilation throughout the bu~lding, the space limitation

in the kitchen and hygiene facilities

the below standard per inmate.

ratio

of

toilet

and

personal

I believe that the capacity of the building can be raised to

cc1f1ooo72m5mr lppafrloTrwoegoumhteereindrssie.anddfmtoeThiralhmfeyteeiastahofdooefrdyuail lficsottehriwhoo. oitnnmhiangHeslm.ocwaamatneTervyorhewdyeri,iisefnnerimtegchraaoetcttooaiemospspbnsaaescwccipeuittyalrhasnrcictednaaennndtdtlrbhyeaienecr dhoatsanbbhvssueweotisrorleuadbucelidrcntdoiagoonpi,mnnoatsctt.ihhbit eyese

following recommendations are offered:

1. The inmates should have ·free access times. The configuration of the wings surveillance to monitor movement during shifts.

to the toilets at all will permit adequate the evening and night
·

2. Exhaust fans shoul~ be immediately installed to help modulate

temperatures and remove,~moke and odors from the sleeping rooms.

Since the should be

ventilation is only designated as smoke

passive, free for

a number of non-smoking

sleeping i n m a t e s .•

rooms

A study to install a building-wide ventilation system should

be undertaken and completed within a time-frame acceptable to all

parties.

'

si3ihnt.oswctaaenTlrlhebreodeotmoewfiifliteenhctitntihavreteehalesysegscnhrleeoeegwadanetertiodornoabonewmdirsnes.gpananTiiertheeiedzdsefdaltn.oodorbeexfhiinamuipssrhtovvweednitthsioilnatthitohanet

4. Where security is not an issue, the dorm rooms table and chairs so that inmates can write letters quiet activities during in cell times.

should have a and engage in

General Recommendations:

hcdadecmorhooireconaeeuarrdidmssgriA.setein;fwnlooctthIeenyerroatdseesutigehgtsparhheoenrrsosodftctpshuorepoegmigefnhspodrfogelloieullsroxyoftse.wppsewtduanhaTgresratghiaialeincflslsdrausstioecligadnraiiorlrnddoietdicmthvsoiatieensrdtvcseciuahgceaacerrtwlnueedfh.asuducistllcaileiohFn-n,bntoilmrpmospootciohmresnknoeeeseicrfttdeoeaoiadrnrfebucffyatreihiemr,rrseeedeaserdatssalhorshkoieeamasravzwldiwalecairereinnbdalllgdee;lll

· ·

and review 101.

remodeling

plans

for

compliance

with

Life

Safety

Code

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 53 of 54 PageID #: 137

pAacgStPrfhnlerroehdeoodepvredawtlensienagsttraocciAhieAuanfolet,nlribeegdnscferdt.taaprayu,dwalcrfsdooliiecBiavysrdta.ynsshmeiunadnasscafhnafcbtttepOeoaslieietooucntnauanfltcdldcdtalubenoailunerseorbtterstadnonihesccroniofeusozinputra,nilr·nanoaregamidewrpdgcmbeti,pihi+adbpncececttronaeolaieuaoerlmtkrtdvhlaaueap.elqnstnordptuioeulon,rdaytnoxcgotcdbverioseiocyrminnrdnsescateaavattvotnsrahirceimyedelaetrwshrnpidpeaafaoonbeorcltboseeiatullbeed,eolnsmuladrdreogantepicigdvniernwhneeienogimgpirnrttfaa/ighafoazdplroanerlarinrwoddostsini,idicoaenebslufnnhflfacifaeoicntesatnacustiacbtroetlsatadetrutrhiiaihansiovendaebsetnsee.d.el.r

is

Please call necessary or

me if

if clarificat I might be of

ion fur

on any of the ther service t

recommendations o you.

_

Respectfully submitted,

Robert W. Powitz, Ph.D., M.P.H. Consulting Sanitarian

Case 1:74-cv-00172-L-JH Document 13 Filed 08/01/07 Page 54 of 54 PageID #: 138

OOSSc/54

RECEIVED

UNITED STATES DISTRICT FOR THE DISTRICT OF RHODE

COURT ISLAND'·

Clb<K
S. D!ST:::!CT COURT DISTr.:ICT OF R. I.

NICHOLAS A. PALMIGIANO, et al.

C.A. No. 74-0172 L_

v.

BRUCE G. SUNDLUN, et al. THOMAS R. ROSS, et al.

C.A. No. 75-0032

v.

BRUCE G. SUNDLUN, et a1.

ORDER

The parties joint Motion for Determination of Compliance was heard hefore Judge Ronald R. Lagueux on December .

6, 1994. It is ORDERED, ADJUDGED AND DECREED
that the parties Motion for Determination of

Compliance is hereby granted. ENTER

PER ORDER

Prepared by:

. ~,~·i.-r_Y,..-..-~~

Maureen

(#3800)

Special Assistant

Attorney General

72 Pine Street

Providence, RI 02903

(401) 274-4400

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS PALMIGIANO, et al., Plaintiffs,
v.
BRUCE G. SUNDLUN, Governor of the STATE OF RHODE ISLAND, and GEORGE VOSE, in his capacity as Director, Rhode Island Department of Corrections,
Defendants.

C.A. No. 74~0172L

THOMAS R. ROSS, et al., Plaintiffs,
v.
BRUCE G. SUNDLUN, Governor of the STATE OF RHODE ISLAND, and GEORGE VOSE, in his capacity as Director, Rhode Island Department of Corrections,
Defendants.

C.A. No. 75-0032L

MEMORANDUM AND ORDER
This Court receives frequent requests (principally from present inmates of Rhode Island's Adult Correctional Institutions - "ACI") to reopen the above-captioned matters. With this Memorandum and Order the Court intends to close these matters, finally and completely.
Pursuant to Orders of this Court issued on April 4, 2007,

both cases are now closed; no additional class members may be added to the class; and the 1994 Settlement Agreement that addressed conditions at the facilities is now dissolved. This Court wrote extensively concerning the history and resolution of these matters in those Orders.
In summary, all comments, complaints, issues and motions concerning the overcrowding and prison inmate population must now be directed to the State of Rhode Island's Criminal Justice Oversight Committee, which was established by the Rhode Island State Legislature in 1993 for the specific purpose of enforcing the caps on the inmate population that were set forth in the 1994 Settlement Agreement. See Rhode Island General Laws §§ 42-26-13 through 42-26-13.3. Correspondence may be directed to the Committee care of the Presiding Justice of Rhode Island's Superior Court at 250 Benefit Street, Providence, RI, 02903.
All other issues besides overcrowding that were addressed in the 1994 Settlement Agreement were resolved in full by that Agreement. The Settlement Agreement specified in Section X, para. B, that "plaintiffs shall not seek additional relief in connection with this lawsuit ... " Following the execution of the Settlement Agreement, a period of monitoring took place, which ended with a Stipulation of Dismissal in 1995, resulting in the complete termination of the above-captioned matters. Consequently, all comments, complaints, issues and motions that concern conditions at the ACI, other than overcrowding, will not

be considered further by this Court as part of either of the above-captioned lawsuits. If present inmates seek to pursue legal remedies for complaints about their treatment or conditions of incarceration, those complaints must be pursued in a new civil rights lawsuit, or, first, via the administrative remedies available through the Prison Litigation Reform Act, 42 U.S.C. § 1997e. It is so ordered.

Ronald R. Lagueux

Senior United States District Judge

Jq , February

2014

 
 Case 1:74-cv-00172-L-JH Document 98 Filed 12/13/11 Page 1 of 3 PageID #: 462

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
NICHOLAS A. PALMIGIANO, et al.

LEGAL COUNSEL DEC 1 3 2011
DEPT. OF CORRECTIONS

v.

C.A. No. 74-0172L

BRUCE G. SUNDLUN, Governor ofthe State of Rhode Island, and George Vose, in his capacity as Director, Rhode Island Department of Corrections1
THOMAS R. ROSS, et al.

C.A. No. 75-00321

V.

BRUCE G. SUNDLUN,,Govemor ofthe State of Rhode Island; and George Vose, in his capacity as Director, Rhode Island Department of Corrections

,:...-:,·

STIPULATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court for the District of Rhode Island on July 15, 1994. (Copy is attached);
WHEREAS, the Rhode Island General Assembly has directed the Rhode Island Department of Corrections to close the Donald Price Medium Security facility, as a fiscal savmgs measure;
WHEREAS, the approximately three hundred inmates housed in the Donald Price facility need to be re-assigned to other Adult Correctional Institutions facilities;

1 These were the named Defendants when the case was closed in 1994. Presently, Lincoln Chafee is the Governor and AT. Wall is the Director of the Department of Corrections.

Case 1:74-cv-00172-L-JH Document 98 Filed 12/13/11 Page 2 of 3 PageID #: 463
WHEREAS, Defendants have submitted a plan to Plaintiffs' counsel to increase the capacities in the John J. Moran Medium Security facility by adding 120 additional overhead bunks to the facility;
Now, the parties agree to the following amendments of the Final Settlement Agreement, which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995, further amended on December 20, 1996, approved by the Court on January 3, 1997; further amended on March 4, 1998, approved by the Court on March 27, 1998; further amended on May 16, 2002, approved by the Court on May 31, 2002; further amended on February 3, 2003 and approved by the Court on February 11, 2003; and further amended on July 27, 2007 and approved by the Court on August 1, 2007. (Copies of said Modifications are attached).
The Final Settlement Agreement, dated March 18, 1994, in Section III,~ D. 1 provided that the total capacity ofthe John J. Moran Medium security facility shall be 898. That capacity was further amended by agreement to permit an increase to 922. The capacity was further amended in 2007 to 1066. The parties now agree to increase the capacity to 1186.
The Defendants have now verified that the aforementioned increases would not be detrimental to the infrastructure of the facilities and would improve prison management. Plaintiffs' counsel has inspected the facilities via video and confirmed that the requisite population increases will not impair or infringe upon inmates' rights.
2

Case 1:74-cv-00172-L-JH Document 98 Filed 12/13/11 Page 3 of 3 PageID #: 464

All other provisions of the Agreement remain in full force and effect.

Dated: December,::;;- 2011

Attorney for the Plaintiffs
dhmfl~~
Alvin J. Bro tem, Esq. 220 Radcliffe Drive Chestertown, MD 21620

Attorneys for the Defendants
Richard B. Woolley, #1452 Assistant Attorney General 150 South Main Street Providence,Rl 02903

Approved and so Ordered: Ronald R. Lagueux Senior United States District Judge
Date:----------------------
3

 
 UNITE)) STATES DISTRICT COURT FOR THE !DISTRICT OF RHODE ISLAND

NICHOLAS PALMIGIANO

v.

C.A. NO. 74-172 L

DEPARTMENT OF CORRECTIONS ET AL.

MEMORANDUM AND ORDER

Senior United States Magistrate Judge Hagopian

Presently before the Court are motions by ten inmates at the Adult Correctional

Institutions ("ACI") in Cranston, Rhode Island: Christopher Rosheleau, Robert Picard,

Christopher Botelho, Mark Halvorsen, John LaFond, Phillip Jackson, Leonard Harrington,

Christopher Marikian, Daniel Smith, and Shawn Wakester (together, the "Inmates"). The

Inmates seek to intervene or join a class action lawsuit initially filed in 1974 (the "Class Action")

to redress a recent increase in the number of bunks at the ACI. The Inmates filed motions: (1)

for Relief from a Stipulation signed August 1, 2007 (Docket # 76); (2) to Appoint Counsel

(Docket # 77); and (3) to Adjudge Defendant in Default (Docket # 77). Defendants have

objected to these motions (Dockets ## 79 & 80). These matters have been referred to me for

determination. For the reasons set forth below, the motions are DENIED.

BACKGROUND
"
The extensive background in this case was detailed by Senior Judge Lagueux in
Palmigiano v. Sundlun, 482 F.Supp.2d 207 (D.R.I. 2007)(hereinafter, the "2007 Palmigiano
Opinion")(denying motions filed in 2006 and 2007 by ACI inmates seeking to redress
complaints about conditions at the Aci by intervening in the Class Action). In brief, in 1977, the ··
Court ruled in favor of the plaintiff class of ACI inmates who had alleged that the conditions at

the ACI violated the Eighth Amerldment. !d. at 208. The Court ordered the Rhode Island Department of Corrections to implement numerous changes and retained jurisdiction of the case in order to oversee the process, which took over 17 years. !d. at 209 - 211. In 1994, the parties finally entered into a settlement agreement (the "Settlement Agreement"), which, inter alia, set forth caps on the inmate population. !d. at 211. After several months of monitoring to determine that defendants were in substantial compliance with the Settlement Agreement, a Stipulation of Dismissal was approved by the Court in July 1995. !d. Since then, several stipulations amending the Settlement Agreement have been agreed to by the parties and approved by the Court. !d. The most recent stipulation, dated August 1, 2007, increased the cap on the number of beds by 144 (the "2007 Stipulation") (Docket# 13).
Th~ Inmates here seek relief from the 2007 Stipulation pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (tbe "Federal Rules") regarding relief from a final judgment or order. They claim that as ACI inmates they are members of the plaintiff class and that the attorney of record, who agreed to increase the number of beds at the ACI, does not represent their interests. They also seek counsel and a court order adjudging the defendants in default.
DISCUSSION Plaintiffs' motions here are misplaced. Although they purport to be members of the plaintiff class in the Class Action, as the Court has previously ruled in similar circumstances, the Class Action is closed. Palmigiano, 482 F. Supp. 2d at 215. In order for a court to retain supplemental enforcement jurisdiction over a settlement after the court grants a voluntary dismissal based on a stipulation signed by all parties, the parties must have (1) agreed to incorporate the terms of the settlement into the dismissal order or (2) executed a stipulation
2

authorizing the court to retain jurisdiction over the implementation of the settlement. See
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 381, 114 S.Ct. 1673 (1993). In the 2007
Palmigiano Opinion, in response to the motions filed by ACI inmates claiming that defendants were violating the terms of the Settlement Agreement, Judge Lagueux determined that neither of the circumstances for retaining jurisdiction governed the Class Action. Palmigiano, 482
F.Supp.2d at 215. He stated that "[t]he terms of the Settlement Agreement and the Stipulation of
Dismissal clearly terminate the Court's jurisdiction." /d. He further stated:
The provisions on population capacity transferred enforcement authority from the Court to the newly-created state task force, the Governor's Justice Commission. Consequently, the Court concludes that any effort to enforce the current population restrictions (including the recent stipulations) must be brought as a separate civil action for breach ofcontract.
/d. (emphasis added).
Additionally, four months after the 2007 Palmigiano Opinion, following the signing of
the 2007 Stipulation, several additional ACI inmates filed various motions essentially seeking to
intervene in the Class Action and stay the proceedings, including the implementation of the 2007
Stipulation (Dockets## 16, 18, 21, 23, 25, 31, 33, 57, 63 & 64). Judge Lagueux denied these
motions (Dockets ## 17, 38-42 & 68-69), and several inmates appealed (Dockets ## 15, 19, 22,
24, 26, 55 & 60). Upon review, the First Circuit affirmed Judge Lagueux's rulings, stating: We have considered appellants' filings which challenge, in effect, the district court's denial of their requests to intervene in a class action instituted in 1974. That case is closed; thus, there is no pending case in which appellants can intervene.
Palmigiano v. Wall, Nos. 07-2251,2268 & 2319 (1 51 Cir. July 2, 2008)(Dockets ## 75, 78 & 81).
The Inmates' attempt to reopen the case pursuant to Federal Rule 60(b) also fails. As the case was dismissed and judgment entered in 1995 pursuant to the Stipulation of Dismissal, the
3

Inmates' motion is untimely. See Fed.R.Civ.P. 60(c)(motions for relief from judgment or order
under Rule 60(b) shall be made within a reasonable time). The Inmates have not presented extraordinary circumstances that would indicate that the 13-year-old judgment of dismissal should be vacated. Although their motion is drafted as a request for relief from the court approval of the 2007 Stipulation in August 2007, as indicated by the First Circuit's statement in July 2008 that this case is closed, such approval by the court of the 2007 Stipulation did not reopen the case. Cj Taylor v. US., 181 F.3d 1017, 1023, n.11 (91h Cir. 1999)(court did not retain jurisdiction over 1972 consent decree pursuant to which the Arizona State Prison adopted certain prisoner rules or 1973 judgment dismissing the case, despite subsequent court approval of amendments to the prisoner rules set forth in the consent decree requested by prison officials in 1979 and 1994).
Accordingly, as this case is closed, the Inmates' motions are DENIED. As directed in the 2007 Palmigiano Opinion, the Inmates must bring a separate civil action for breach of contract to enforce population restrictions set forth in the Settlement Agreement.
IT IS SO ORDERED.
Q_ '!=,c-.'-
Jacob Hagopian Senior United States Magistrate Judge February 17, 2009
4

 
 r
Palnnigiano v. Travisono
PC-RI-001-002
DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al.)

v.

)

J. JOSEPH GARRAHY, et al.

)

Civil Action No. 7^-172

THOMAS R. ROSS, et al. v.
J. JOSEPH GARRAHY, et al.

) Civil Action No. 75-032

MEMORANDUM AND ORDER
This cause came to be heard upon the Report of the Special Master to the Court Regarding Defendants* Compliance With Its (August 10, 1977) Order as of February 10, 1978. For purposes of this memorandum, the Court will deal with subparagraphs 2(a), 7 and 12 of the August 10 Order. No request was received from any parties for hearings on these matters, but memoranda were submitted on some aspects of sub^ paragraph 2(a).
The report which follows measures the conduct of the defendants against the language of the August 10 Order and against that contained in modifications subsequently approved by the Court. The references to numbered paragraphs of the

c

Court's Order correspond to numbers utilized in the original order.

ORDER 2(a)

"Defendants shall by April 1, 1978 house

awaiting trial detainees in facilities

which are physically separate from

facilities which house sentenced prison-

MI-'.']-CL;.3 A. ersj"and* thereafter^ shall prevent inter-

mingling of, and contact between,

detainees and sentenced prisoners. All ' " ' '

awaiting trial prisoners shall be re-

•

.>-: "moved from the present maximum security

facility no later than the date the

Intake Service Center is completed in

• KDecember 1979.

No later than February 22, I978 the

defendants shall file with the Court their

'

detailed plan, including dates, approved

by the Governor and the Director of the

Department of Corrections for reducing the

population of the present maximum security

facility to those prisoners who are await-

ing trial, those prisoners who are being

processed through Admission and Orientation

and the 80 to 96 prisoners who they determine

require maximum security confinement. The

• ' • -: SpecialMaster shall file a report on the

defendants* plan with the Court no later ••.:'.••:... .' ' ; than March 1, 1978 and a hearing, if

necessary, shall be held on the plan on

•-.-• r:... March 9,' 1978;"

Evidence produced for the Court's review would indicate that the defendants have made good progress toward remodeling the maximum security unit to provide by April 1, 1978 facilities for awaiting trial detainees "which are physically separate from facilities which house sentenced prisoners". After numerous extensions-^ granted by the Court, the defendants

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submitted on"February 22, I978, "a derailed and comprehensive

plan, including dates, for the reduction of the population of

the maximuHL^a&euEity unit in accordance with subparagraph 2(a).-/

The Special Master filed his memorandum in response to

this plan on^March-1"? 1978.-2/'-^ The -Court "transmitted the

Master' s Memorandum^to;4;he ^ Court''in-^Response t6 the - Defendants •

mini-'.ing c~.',. a n d ::orrr~ct t •••.'•'•:'>~--\.,

"Facilities" 'Drawdown*- Plan" -to all concerned parties, request-

'IV',--'..! \ i ' z ' J 1 ' • • : r i i ' . j •.•'••.'.:'.•:•••'•

•:.: ' .:...'.

ing that they submit in writing'their responses and objections

to the report no later than Monday, Karch 13» 1978. It further

instructed the parties that if a hearing was not requested the

Court would take-under consideration adoption of the Master's

findings and recommendations immediately thereafter. On March 16, 1978* defendants responded to the Master's1 Memorandum con-

cerning the '-^Facilities-'Draw-Down*--Plan" over the signature

of William Gi'Brody,-Special Assistant Attorney General. There

ri'.

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•.•.'••-

•

• ••

were no objections-made to the Master's RTemorandum, but atten-

tion was called t o a n acceleration of the defendants' inmate

transfer process and the correction of a typographical error

which mistakenly had indicated that 36 inmates instead of ^-0

inmates would remain in the maximum security unit until the

completion of the new program building at the medium security

unit. These minor changes are acceptable and are to be made a

matter of record as representing the defendants' current "Draw-

Down" plans. It is to be noted that the defendants did not

request a hearing on the issue.

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5u ••.1 i rfcu(Tha-p l a i n t i f f s^--- inia?memorandumi. dated:, March;-17, > 1.978>

over, the--Signaturecoi", RbtofirthB.rMaiani^Esqg i t>Ts jectedlctfcitheof ->
Master's iKemorandu^'wliihtajnumb'er^&fnconcerhs^asr'f ollowsi: 2 ^a) . - /
1) The population of Medium Security would be "

increased without-' corresponding' increase in^fragrarK- f a c i l i t i e s . i-r rvcrr s ?The"Masted'• clearly ^stated in his ;memorandum on" thi's-'c.- •

subject that" the question of program services was more appro*-: -

priately an element'" that should be reviewed on Kay 10, 1978, -

when the defendants are required to have program services = /

available for a l l inmates. The Court agrees with the Master's position in this matter, particularly in-!view of the fact-that

the population will not increase in medium security until

December- 1978, at which time additional program facilities^are

i ; o r b e T a v a i l a b l e : ; i l \-::-z>? 'T-.'-.v.--;..'-. •?• • .-.L;--.- O>•••<•• u . -

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2) Theplan violates theCourt's August 10, 1977 Order

prohibiting other than minimum security prisoners being placed in

dormitory settings.

The Master and numerous correctional administrators-^

who have reviewed Rhode Island's Adult Correctional Institutions

find no objection to using the dormitory style of sleeping that

exists in the current "Men's Reformatory" because of the small

number of inmates assigned to each dormitory unit and the

increased security that has been provided. The Court agrees

with these recommendations and will amend subparagraph Ma)(9)

accordingly.

:

3) The amount of indoor exercise space at the "Men's Reformatory" is completely inadequate.
It has never been demonstrated to the Court that the exercise space at the Men's Reformatory is inadequate, but rather that the programs for exercise and recreation have been almost non-existent. The defendants will be required by Kay 10, 1978, under subparagraph 5(e)(3) "to establish recreational and avocational programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in such programs on a regular basis." The time to evaluate the defendants* progress towards this goal is more appropriate in May than now.
H-) Defendants' plan proposes to increase the population in the Reformatory substantially, while at the same time the facilities require massive renovations to meet minimum healtht safety and fire standards.
The facts presented to the Court clearly indicate that the population will increase by only 40 inmates and that will not be done until December 1978 when additional program facilities will have been completed.
The increase in population will be housed in.the North . Basement or in the south end of the first floor, which was at one time the Boys Training School. The defendants are mistaken in their memorandum when they state that the North Basement was
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not designed to house prisoners. The original blueprints not Re-'orr^prv" is completely inadequate. only show that this section was designed as a dormitory complete
T~ r;:.-.^ r^.y-r- 'j--ev ae-::^.'.: •:•. ;.-c- t :".;.• ^ o ^ r ~ ca;;,v t h e
with toilets, wash basins and showers, but the history of the
c.y~r:^" iS H r~r^c? st fch:: r ^ ' s ° "for:-"1.'''.cry ^ r • iru'GRnuat:: h\:t
building indicates that this area was used as a residential unit for many years. There will, according to the defendants, be a thorough upgrading of this area before it would be used
19?./: uncer subparagraph 5 ''•:•} '. 3 : "~.o estaolii;n recroatxcn?.^ ar.;i
to houseIptriissonterruse tihnaDtectehmebrera1r9e78e.xtensive electrical, plumbing and heating improvements to be made in the building in question. All of these improvements will have to be made whether the building is rated as "minimum" or "medium" and . whether it is used for 160 inmates or 200 inmates. The defendants are dangerously approaching noncompliance-r-egar-'dingr-the-vL.-.v.'"1 Jtenojxat ion^Qii^ji^ now befoce._theGPurt,.involve the building's custody rating :and.:a sligili-increase, in the resident population. The Special Master informs the' Court" that these changes are within acceptable correctional practice. The Court accepts his recommendations. This action in no way negates, but rather increases, the importance of the defendants bringing the Reformatory Building within the minimum standards set forth in subparagraph
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• 5) The defendants' plan to use the Reformatory is based on an estimate that no later than Ka.y 3, 1978 there will be only 36 prisoners in protective custody. There is no explanation in the plan for how the defendants plan to reduce the number of protective custody prisoners so rapidly.
The defendants have assured the Court that the reclassification process, which will be completed by May 1, 1978, will allow for a new assignment of inmates which will no longer require an unusually large number in protective custody. The Master has informed the Court that the custody schedules developed by the defendants are well within what would be acceptable prison practice.
Finally, the plaintiffs, although expressing a number of concerns about the defendants' plan, did not request a hearing on the objections they made.
ORDER 7
"Defendants shall, within six months from the entry of this order bring the health care delivery system into compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island."
The health care delivery system at the Adult Correctional Institutions has been the subject of several studies and reports. Two studies were undertaken even before the Court's August 10, 1977 Crder. The first report was presented in June, 1976, by
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Dr. Richard Delia"PerihaV'acting as"a consultant for the American Correctional AssocfaCibn under ah LSAA contract. The second 7" report was initiated "in"early 1977 "by HARICOMFi'^IricT,:" a management services organization affiliated with the Hospital Association of Rhode Island (HARI). The final phase of this study was completed in December of 1977. Defendants have forwarded copies of each of these reports to the Court as background information.
Defendants' original implementation team, appointed by Governor Garrahy in response to the August 10 Order, began its approach to achieving compliance with Section 7 by reviewing "Phase I" of the HARICCMP study which had been completed in July of 1977. The Team set out to reorganize all medical services according to the study's proposals, utilizing an appropriation of $*»-25,000 provided by the 1977 session of the State Legislature.
While the Team did implement major findings of the HARICOMP study, it soon began its own evaluation of the Department's health care delivery system by setting up a Health Care Delivery Work Force. This work force implemented additional staffing changes and produced its own recommendations on January 23, 1978, which were forwarded to the Governor and to the Director of the Department.
Meanwhile, Mr. John Fournier, Medical Services Coordinator within the Department of Corrections, was asked to review the health care delivery system with four goals in mindi
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c
identification of the requirements of appropriate health" care standards, referenced'in"the Court's August 10'Order;" .-- identification of those"Departmental health services which were in compliance with the Orders — identification of services not in compliances ^ — "specific"requirements to "achieve compliance where services were deficient.' This comprehensive report was forwarded to the Special Master on December 20, 1977« With the information developed 3,n the report _ac^ip5r.e,hensive health..care plan and policy ^manual was developed by the defendants and constitutes the blueprint for ACI's health care delivery system. This plan was favorably reviewed by Mr..Richard,Kiel, Chief of Health Services for the North Carolina Department of Corrections, who was retained as a consultant during January. Mr. Kiel concluded that "implementation of the health care plan . . . would provide a level of health services- in keeping with Standards Developed by the American Public.Health Association, the American Correctional Association and applicable standards from the Rhode Island Department of Public Health." The Court has tv/o reservations about accepting this statement at face value. First, as Mr. Kiel himself stated, "It is evident that sufficient resources have not been made available for implementation of the plan. Thus, I cannot
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c
report that quality health care is being delivered in practice, since no satisfactory assessment of facilitiesf staffing, and supplies has been made." Mr. Kiel returned to Rhode Island on March 16, 17 and 18 to analyze whether the Department of Corrections* health care plan is actually being carried out. His report should be available by April 10, 1978.
Secondly, Mr. Kiel's expertise is in the field of health care administration—he is not a physician, and the Court is hesitant to evaluate defendants1 compliance without advice of an independent medical consultant. The Special Master has retained a qualified physician with wide correctional experience who can evaluate defendants* health care delivery system by April 10, 1978. Until that report is received, the defendants* health care plan cannot be certified as fulfilling the Court's August 10 Order.
Defendants were to have complied with Section 7 of the Order by February 10, 1978. As indicated above, significant progress in health care planning; has been made since the August 10 Order was issued. However, the Court is unable to make a definitive finding regarding compliance without an assessment of defendants' health care delivery system in light of resources currently being applied to implement the plan.
ORDER 12 "The defendants shall, within six months from the date of this order, submit to -10-

c

e1-Master^and t o ' the Court a compre- ~~-.'.V^-.-_•.':..

sine-

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hensiye £j.ogre£g

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p n

ort ^he

-

setting implem

e

for nta

th tio

n

"t h'be?i3r'

sTa:-:i.\ rir-, ana

each and every subparagraph of this

'

order. The report shall also include '''--• o.u.:-: cr.

a timetable for full compliance."

v The defendants initially assigned the responsibility

for reporting progress to-the Court to the Governor's

Implementation Team; tPhe-Team"submitted detailed reports, at

least monthly, until'December. At that time, the Governor

assigned the reporting responsibility to the Department of

Corrections. Although"monthly reports have been submitted,-o3r

the Department has not complied with subparagraph 12 of the

August 10 Order requiring, "a comprehensive report ^ithin

six months/ setting forth their progress in the implementation

of each and every subrparagraph of this Order. The report shall

also include ac timetable ;; for full compliance. M

Defendants have been most cooperative in submitting

whatever report the Court has requested. However, they have

not to date developed an overall plan for compliance with the

August 10 Order, nor have they developed a timetable for the

process of "achieving full compliance.

;

.. . .

It is imperative that the Court be able to review the defendants1 overall plans with projected timetables for com-

pletion. The Court should not be forced to make its decisions

piecemeal, without an adequate view toward how individual

efforts fit into what "should be" a grand blueprint for

compliance.

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c

The S(exnrtvado|>*s-'-!th'e:findings: brf theiSpecial Master

progress in the irrple-.s-.Ttationo.? in his memorandumirto *hert;oOT^>ln?. response fcoi-the Defendants1

vr'')-••:

T n ' " - -•-•'-•••• o ••• .:• M

-v1 :-o i n e j . 1 - - " -

"Facilities J?Draw^Dowii^ ^an^ifate^Karch^l,,'11978, and the

findings of the Special Master in regard to subparagraph 7 and

12 of the August 10 Order, as set forth in his Compliance

Report to the Court dated February 10, 1978.

It is Ordered"that the Court's Order filed on August

10, 19771'•'is modified in the following respectt Subparagraph

M a ) (9) shall read as' follows i r; -r ; r m w o.-iu- yiu: rrre-

"each convicted prisoner housed in a dormitory shall have at least seventy'.:•-'- five square feet of personal living space and only those prisoners who have r": , -r: :\_/ .been classified as'Minimum or1 Medium . _ Security shall be housed in dormitories."

.. .;

i; is further:1-Ordered that all of the defendants, as well as their subordinates, proceed at once to effectuate full compliance with subparagraphs 2(a), 7 and 12 of the August 10 Crder, as modified by subsequent orders of the Court.

•-•"• •' S o O r d e r e d . • - ' ~

i.

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By Crder,

Enter:
iJudge KarchJ SiJ , 1978

.„,-„.. ^.Clerk /
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FOOTNOTES

1/

February 3» 1978? February 22, 19?8;

March 1, 1978

2/

See Appendix A; Defendants1 "Draw-Down" Plan

See Appendix B; Master's Memorandum of March 1. 1978.

•k/

Raymond Procunierj Gary Hill; Pat Mack; Lyle Egan;

Mario Giugnino; Peter Gobel; Irving F. Roberts!

Fred Stock.

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 O G T - 3 1 - 8 9 T U E 1 0 : IT A 3 B U . l_ . J U N K I N ET AL
\ I
<yC
DISTRICT COURT OK 'nit: b'lN'tT'.D STATKS FOR THE DISTRICT Of RUOOr. ISLAND

R .Q2

NICHOLAS A. PALMIGIANO, ot al. )

v.

) Civil Action So. 74-172

J. JOSEPH GARRAHY, ecal.

)

THOMAS R. ROSS, et al. v.
J. JOSEPH GARRAHY, cc al.

Civil Accion No. 75-032

OPINION AND ORDKR 1/
PETTINE, Chief Judge. laits Order of August 10, 1977, the Court directed defendants to submic wichin 30 days a dace certain by which time they would cease CO use the Mnxinutr. Security Facility (Maximuc) Co house inmates at the Adult Correctional Institution. That date was co be no later than August 10, 1973. The Court directed, in paragraph 3(c) of the Order, the defendants to cake interim measures by February 10, 1973 to bring the Maximum facility "into economically feasibls and praccicable compliance" with various miniaua public health standards "as they ralate to food service, sanitation, lighting, plumbing and insect and rodent control". Palmigiano v. Garrahy, 443 F. Supp. 956, 9G6-87 (D.R.I. 1977). Paragraph 3(a) of the Order provided, however, thaC if arrangements could noc be made, by
Palmigiano v. Travisono

m m

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• • • ••

PC-RI-001-003

O C J - 3 1-89

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however, submic a report on Myrc.h 30, 1978, from the environmental health officer of the Department of Corrections. It noted many deficiencies in physical conditions, some of which had been addressed by the Court's August 10 Order, buc again concluded that "none posed a serious health hazard except the condition that affects the potable water system."
Afcer hearings on March 17 and April 17 to review compliance with 3(c), the Court extended thecompliance dace for 3(c) until May 17. Plaintiffs, sometime after May 17, moved this Court to"hold defendants in civil contuwpt for their failure to comply with 3(a)and
1!
3(c). The Court held hearings on June 29 and 30 and July 3 to determine whether defendant:; wo.re in compliance, and on plaintiffs' motion for contempt. The question of compliance and the action for contempt are presently before the Court fordecision.
At the recent hearings, plaintiffs' witnesses detailed the physical conditions at Maximum. Mr.Theodore Gordon, a health and sanitation expert, testified that::
a) Correctional officers arc not trained in fire safety, nor are they given instructions concerning fire evacuation procedures.
b) There arc leaking pipes in proximity CO hot exposed electrical wires in the service areas, creating a serious risk of electrocution for any person coming in contact with then.
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OCT-31-89 TUE 10:iS ASBILL.J U H K I H . . E T *=»!_

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c) There are exposed olectricnl oudacs in the North-state shower area adjacent to a W3shcr and dryer, constituting a serious safety hazard.
d) The sewagfi system remains cross-connected with the potable water system.
e) Sewage linos cannot meat the demands of soca of the cell block area^, with the result thac simultaneous flushing of toilets is likely to cause waste water to overflow into individual cells.
f) There are dangerously exposed hoc water pipes in all showers in the cell block areas.
g) There arc two areas in which upper level railings on the cell block tiers arc broken, thereby creating a serious safety hazard.
h) There are three polyurcthaivs mattresses and nucerous polyurethnue pillows, which present aserious health risk from toxic fumes in case of fire.
i) There are 20 unoccupied cells full of solid waste, trash, cardboard boxes, and food garbage; these cells have not been cleaned for anywhere froa one week Co one month,
j) There arc numerous soiled and torn mattresses, often stemming from the fact th3C recently purchased mattresses ara too large for the bed frames.
k) Numerous windows in the South-scace call block area are broken.

O C T - 3 1 - 8 9 T U E 1 0 : 1 "9 A S B I l_ l_ . J U N K I N . E T ft l_

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1) Many of the window* throughout the institution arc not screened.
m) Window ledges lack any cvidsr.ee of recent cleaning. n) There is inadequate lighting in the South-state
shower area, creating a safety and security hazard, o) Mold is growing on the walls of all shower areas. p) Newly installed lighting in the medical isolation areas
is grossly inadequate, measuring 0-5 foot candles at eye level. q) Sanitary and safety conditions in che laundry area have deteriorated since April, 1973. r) Inadequate ventilation continues to go uncorrected in the shower area of the industrial building. s) Fifty percent of the inmates do not have pillows. t) There is no evidence of any routine cleaning program in the cell block and shower areas.
Defendants failed to offer concrete evidence contradicting most of the specific deficiencies testified to by plaintiffs' witnesses. Even their environmental health officer did not deny many of thes« instances. Rather, defendants attempted to mitigate the severity of the evidence by placing the noted deficiencies in some perspective. For example, they contrasted the danger of eight feet of broken railing with the total of approximately eight thousand feat of railing in the facilities. They concluded that these deficiencies did not constitute an imminent health hazard.

O C T - 3 1 - S - 9 T U E 1 0 : 1 - 9 flSBILL, J U N K I N , E T £i l_

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In addition, defendant <;' hn;;inf:;;; mnnascnant officer certified concerning the total nr.ouuu of contracts let by Che Department since July 1, 1977, for repairs inelectrical systor.s, window glass, plumbing, roofs and ceilings, aud for the purchase of lumber, painC, household supplies and r.attresses. While defendants have spent thousands of dollars for hundreds of hours of contractors' cima, they were unable Co detail how the coney was specifically or effectively directed coward achieving compliance with the August 10 Order. Also, cross-examination of the official responsible for reportins t;o the administration on health and safety conditions indicated that he receives little administrative support, and that his reconrnendatiens for corrective measures are seldom carried out.
Because of the conflicting testimony regarding current conditions at Maximum and because o£ cue incoeplete ar.d contradictory reports submitted by the ddumlauus; overt the pasc 6 r.onths, the Court decided that a view wn;; necessary. In the company of the Special Master and the parties, th;; Court, on the r.orning of July 3, 1978, conducted, an in.speut:io(t at Ha;-:L::iun o£ the living quarters, feeding areas, educacion and recreation facilities, showers, and industries area.
On the basis of all cho cesciraony, chc view, a.nd prior hearings, Che Court happily notes that significant progress on cany fronts has betn achieved in bringing the prison inco compliance with the August 10 Order. There is no doubt that the food service area has been
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OCT-31-89 TUE 10:20 flSBILL, JUNKIN, ET (* l_

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raised from a totally unacceptable level to one that comports with minimum health standards. A massive reclassification process has been completed. . Awaicinp.-cri.;'.! detainees have been separated from convicted inmates, although thay continue to be housed in a walledoff area of Maximum. Extermination prograas have been carried out. Many, window panes have been replaced, hundreds of mattresses have been purchased, and some cell block areas have been painted. In addition, the number of protective custody innate* has been reduced from 120 to approximately 20 sentenced ineates; this indicates a lessening of the fear and violence, that was rampant a year ago. There is no longer a general lockup: inroates eat under decent conditions, they exercise and shower regularly, and visitation rights have been restored. All of these changes constitute significant progress toward creating .1 constitutionally acceptable prison.
Howeve^ in the physical plane there arc obvious violations of the standards set forth in 3(c) and 3 U ) , as they relate to the sanitation, lighting, plumbing and sa£ecy of Maxitnuo, during this interim period of occupancy until alternate facilities are available. The Court has come toche conclusion that the testimony of plaintiffs1 expert witness must be credited as accurate in all its substantial
If
points and that significant defects in the physical plant exist. The overall lack of cleanliness and sanitation throughout the institution and che presence of certain conditions imminently
« hazardous to life and health result ineluccably in a finding of noncompliance with 3(a) and 3(c). Moreover, these conditions apparently

O C T - 3 1 - 8 9 TUE 10:20

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have worsened, rather than iiv.jicovt/d, >in<;« April o£ chi.;* ytnr. These violations, in mosc uuu.s, appear CO be caused by a lack of administrative direction and supervision, not by insufficient fiscal resources. Many can be rectified by hard work, elbow grease and aanageaenc controls, which Uo not require additional funding by the legislature. What is sadly lacking is a consistent, systematic commitment to safety through continuing repair and to cleanliness through an adequate housekeeping program. As a consequence, improvements in sanitary And safety conditions one oonth cay be undone the next by a failure systematically to maintain che facilities.
The Court extended the original dace for abandoning J.'axieum to two and one-half years from cho entry of the original Order. The tine when those prisoners classified to ir.a::ir*ura security will be housed in physical conditions acceptable under the August 10 Order is thus another year and om-.-hnlf oii. To accomplish reasoned, orderly, and economically feasible change in the state prison, the innates will have to endure che Maximo building during this tire of transition. While sensitive throughout this litigation to the time and planning required to remedy pervasive constitutional violations) the Court in good conscience cannot permit those conditions which are imminently hazardous to life and health to continue during Che transition; such defects truly make Maximum unfic for human habitation. Nor can it in justice allow departures
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fron those minimum standards, referred co in 3(c) and 3(a), which may be accomplished without undue expense through improved administration. Section 3(c) took this into account by requiring in Che interim period only that defendants achieve compliance with standards which are econoaically feasible and practicable.
Moreover, patterns of effective administration determine the ficness of a prison as much as the physical plant does. A new prison can become a dungeon,if an orderly system of maintenance and accountability is not established on a continuing basis at all staff levels. Even before the move to the new facility, habits of good administration must be developed at the ACI and incorporated into daily functioning. The deterioration of physical conditions at Maxinum in only four months, which can only be attributable to problems in administration, persuasively evidences its importance. Indeed, the Court has on several occasions recognized the causal connection between poor administration and the constitutional violations of the ACT.. Pn1w.\;.: iaao-v • Corrahv. 443 F.Supp. 956,' 977-78 (D.R.I. 1977); 448 F.Supp. 659, 673 (1978); Jefferson v. Southworth, 447 F.Supp.179, 190-91 (D.R.I. 1978).
The Court therefore is today ordering defendants to make certain improvements at Maximum in order to eliminate conditions imminently hazardous co life and health and in
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order to achieve compliance with certain standards required in 3(c). Several sections of the order compel the establishment of procedures of effective administration for the regular reporting and correcting of dangers and defects and for the maintenance of improved conditions.
Time and circumstances have influenced the Court's order today. The temporary nature of the present occupancy makes economically wasteful those major structural changes necessary for the realization of a safe and healthy prison. The egregious conditions, which the very nature of the structure impojos, cannot help but have a demoralizing impact on inmates. In this atmosphere, taar.agecent is put to its keenest test and idleness haunts the nind, feeding whatever quarrelsoae and mutinous nature an inmate nay have.
The plaintiffs have movt:d this Court to hold the defendants in contempt. It is clear that defendants are out of compliance with the August 10 Order in ways which cannot be parr.itccd. Yet they have exerted efforts to alter deplorable conditions. These efforts have paid off in key ways, already noted. Most striking and gratifying to this Court is,Che renovation of thd food processing area from-a disgusting and filthy health tu/.ard to a clean, orderly and sanitary kitchen. But their coraraendablc efforts have not always been actively and freely made. For example, the completion of the essential reclassification process came about only after this Court held the Director of Corrections in contempt and threatened the State with daily fines. The plaintiffs now ask for a fine of $5,000 per day
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OCT-31-89 TUE 10:22 rtSBIUL^-JUNKIN, ET

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until Che defendants crc.itc tolerable physical conditions for them.

The efforts of ehc defendant::; mcilco. a Cine of chat proportion un-

warranted today. The cose would be borne in the final analysis by

the taxpayers; and it is they

who bear the cost of the

prison already. The Court seeks to avoid, if possible, caking the

taxpayers suffer for

the inefficiencies of the Department

of Corrections. In3tead, the Court today attempts to facilitate

compliance by specifying certain key alterations which are obviously

required, by giving defendants 30 raore days to comply, and by requiring carefully designed administrative procedures for proper prison maintenance. The defendants arc thus put on notice of what precisely is required and by when. If they fail to comply, they will know that they have only themselves to blame for the sanctions which this Court will necessarily impose.

This CourC will review che effects of defendants' conpliance with today's order, 30 days hence, and will await the findings of OSHA before finally determining whecher defendants are in substan-

tial compliance with 3(a) and 3(c) of the August 10 Order. Should chore by any further delay pa::c 1979 in the projected transfer of prisoners from Maxlsiun, the considerations relevant to the interim

occupancy may have co be revised and reweighed consistent with the prolonged use of this antiquated facility.

It is therefore ordered chac:

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1. Within 3 days, Clu- defendants shall remove all polyurethanc from the cells and cell block areas.
2. Within 7days, the defendants shall make arrancenents for a monthly fire inspection of the Maximum Security Facility, for as lony n<; this building is occupied by inmates of the Departacnt of Corrections, by the State Fire Marshal. All his reports shall be submitted to the Special Master and all parties. Reports of action taken by the defendants to remedy any violations cited in the aonthly Fire Marshal's report shall be submitted to the Special Master and all parties within 10 working days of receiving the Marshal's report.
3. Within 7days, t-he defendants shall draft and present to Che Special Master for his approval a details-d daily housekeeping program, including, but not linited to, the following information: a) Staff responsible for cleaning each area of. the ins Litution; b) Staff responsible for supervising cleaning; c) .Equipment available for cleaning; d) Frequency of cleaning; «) Staff responsible for daily inspections.
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Reports of the daily inspections are to be r.ade and are Co be given to chc Senior Administrator in charge of the Maximua Security Facility with copies to the Special. Master.
4. Within 7 days, the deftticiunti, shall have all broken or . loose railings repaired, and devise a systen that will assure that when any railings are broken in the future, an emergency maintenance order will be prepared and repair service provided within a 24-hour period.
5. Within 14 days, the defendants shall request the U.S, Department of Labor, Occupational Safety and Health Administration, to perform an inspection of the Maximua Security Facility. The defendants shall file a report with the Court within 5 days of receipt of Che Occupational Safety and Health Administration's report indicating the couryc of action 10 \>\.- followed co remedy any violation*; cited.
6. Within 14 days, the defendants shall bring all "Hospital Isolation Cells" up to all minimum public health standards or, in the alternative, discontinue their use. In addition, assurance shall be given to the Court that
such cells will be used only for medical purposesand only on specific authority of approved medical personnel.
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7. WiChin 14 day*;, the defendants shall publish a Fire Safety Manual, Approved by Che Scats Fire Marshal, that details: a) Firo prevention programs and staff responsible for compliance ; b) Fire inspection schedules and staff responsibility for compliance; c) fire safety training for ail correctional officers and supervisory staff and staff responsible for compliance; d) Schedule and plan for regular fire drills- and staff responsible for co-ipl Lines.
8. Within 30 days, the defendants shall attest bysworn statement to the Court that all correctional officers and supervisory staff have received "basic fire training" dS set forth inUi« Vlsv. Safety Manual.
9. Within 30 days, the defendants shall demonstrate to the Court that all inmates' mattresses and pillows are fire proof. In addition, all mattresses shall be covered with a non-toxic plastic cover that is chemically washed whenever che mattress is reissued, or with a cloth cover that is laundered every 90 days or whanever the mattress is reissued, whichever occurs earlier.

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10. Withia 30 days, chc defendants shall properly clean, vent, and light nil shovec are3S and repair all drains and ceiling tiles. All scean pipes in shower areas shall be enclosed to avoid accidental injurious bodycontact with exposed pipes. All toilets shall be capable of flushing adequately without causing flooding into adjacent toilets.
11. Within 30 days, che defendants shall have all windows repaired and appropriate screening material placed over those that arc to bo opened. A daily report form shall be prepared by the officer in charge of each area, indicating the number of windows broken in the previous 24-hour period and demonstrating that a. request for repair has been submitted. A compilation of these reports shall be submitted weekly to the Special Master.
12. Within 30 days, the defendants shall repair or replace all defective laundry equipment so ch.?-t ic meets fire and safety standards and is capable of processing the clothing and linen needs of the Maximum Security Facility population.
13. While the duration of occupancy for the Maximum Security Facility is so short as to stake renovation of the existing heating and ventilation systems economically unfeasible,
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OCT-31-89 TUE 10:23 ASBILL. JUHKIN, ET
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it is iterative that satisfactory air exchange .be

maintained in all in:nace living quarters. Thcrefora,

within 30 days, the defendants shall present to the

Special Master for his review a plan co institute

adequate air exchange, through the use of exhaust

fans or blowers, which wj.ll neat

minimua public

health standards-

Enter:

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FOOTNOTES

1/ In che original opinion inPalniftiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977), the Courc found thac the conditions under which the prisoners ware confined violated the Eighth and Fourteenth Aaendsants in that:

1) inmates were subjected to constituCionally intolerable levels of fear and violence;

2) inaates were subjected to constituCionally intolerable conditions of confinement including gross filch, unsanitary living quarters, unsanitary food services, dangerously inadequate medical care and near-cocai idleness;

3) pre-crial detainees vcru punicively subjected to conditions worse than chose suffered by sentenced inmates; and

A) prisoners inprotective custody vcre arbitrarily subjected to conditions vors<j than chese suffered by inmates in the gcr.or.il population.

The Court extensively dor.unonto.d the deplorable living con-

ditions in Maximum. Ajr.ony choso the Court noted ware: dirt,

grime, and missing panes of slass throughout the facility;

trash on floors and inempty cells; infestation of cock-

roaches,

mica, nnd rac;3; leaking roofs and loose

ceiling tile; inadequacy plunblnj: ccr.scicucin;; a healch

ha«ard; lack oC hoc wncor incells; Che absence of vacuum

breakers inpipes toprevent waste water frora backing up

into the fresh water system; leaks throughout che cell tiers,

particularly in the service areas; dc-p conditions in the

service areas chac provided a breading ground tor cockroaches;

' 'lavatories wich large pools of standing water; the per-

vasive stench ofurine; shower areas with mold and mildew

covering the floors and walls; glass, trash and dead cock-

roaches everywhere on che shower floors; inadequate

lighting for reading incells; inadequate heating with no

system tospread hot or fresh air; fire hazards throughout

the facility!including nany polyurethane mattresses that

release toxic fumes when burned; inadequately ventilated

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cloches drytrs, and l.-iuudry cue.is with exposed electrical wiring; deplorable conditions in Che food services area; industrial shops in a general state of disorder; no safety instructions for initiates working in che shops; no control of infectious disease in the infirmary; no written control manual for the infirmary staff; infirmary window screens blocked with d«bri$ and dirt; and coloscony bags in the infirmary simply deposited with the general trash. In addition to the foregoing, the Court found that chere was no meaningful classification program; a total lack of drug treatment program*; inadequacy of Che guard complement, and, concouiitantly, rampant fear and violence, and incredible idleness. The statistical breakdown of the prison population bore witness to these findings — 120 men were in protective custody, 40 in punitive segregation and 70-80 percent of all inmates on dru&s of one sort or another.

Based on all these finding:-, the Court concluded that the ACI presented an ir.miment public health, fire, and safety hazard and th<it the totality oi the living conditions rendered it not only cruel and unusual punishment in violation of th« Eighth Amendment, but further, unfit for hur.an habitation. Pursuant to this finding, the Court ordered, inter alia, che following remedial measures, as amended by subsequent orders:

2(b)

Defendants shall house pre-trial detainees in facilities which conply with the minir.ua standards set forth hereafter in paragraph 4, and detainers f;h;ill not be housed in dormitories;

3(a)

Defendants shall within sixty days from the entry of thit; order, advise the Court of a dace certain when the ;iryaent maxir.uiu security facility will no longer be used for housing prisoners, which clnti: certain shall be no later than December 31, 1579. It is further ordered that by Jauuacy 15, 1973, the defendants present to the Special Ma.stur a plan for raaking the Maximum Security Building ... fit for human habitation and provided further the defendants fully comply with the other relevant provisions of this order, particularly but not limited to paragraph 5-••>

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3(c)

Defendants shall, by M;iy 17, 1978 and for so long a* they utLl-U'.: chc Maximum Security facility, briny uaid facility inco economically feasible and practicable compliance vich Che minimum standards of th« United States Public Health Service, tha American Public Health Association and Cho Department of Health, State of Rhode Island, as they relate to food service, sanitation, lighting, plumbing and insect and rodent control.

4(a)

Defendants shall wichin nine months froa the entry of this order, bring each building and facility under their control, particularly but not limited to the housing <ind food service areas of said buildings and facilities, inco compliance with the minimum standards of the United States Public Health Service, the American Public Health Association, and the Ucp.irtment of Health, State of Rhode Island. (The separate compliance requirements for the Maxirr.ua Security facility are set forth in paragraph 3(c) above). Implementation of this paragraph 4(.a) shall include, but not be limited to, the following:

(1) all faciliciui; shall bef adequately heated, lighted and ventilated. Windows and vindav panes shall be properly maintained and replaced when broken;

(2) each prisoner r.hal.1 have access to household cleaning implements .ind supplies;
(3) a regular /.aid effective program of insect and rodent control shall be undertaken;

(4) food shall bo stored, prepared and served under sanitary conditions which meet minimum public health standards. Equipment shall be maintained in good working ordo.r. Kitchen employees and prisoners shall be adequately trained and supervised;

(5) all trash and debris shall be regularly removed from hallways, cellblocks, corridors and other conmon areas and crash and debris shall in no circurascanccs be stored or accumulated in vacant cells;

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O.CT-3 1 - S 9 T U E 1 Q : 2 T ASBIl_l_

(6) all toilet:;, showers and wash basins shall be properly ua int.aiiv-.-d and kept in good repair. Every cull shall be equipped wieh a working toilet chat flushes iron inside the cell and with A wash basin with hoc and cold running water;
(7) no note than one prisoner shall be confined in any cell which is less than 60 square feet;
(8) every prisoner shall be provided with a clean nacerer.s, which tr.ee ts with federal fire safety standards, and wich clean bed linens, towels and soap;
(9) each convicted prisoner housed in a dormitory shall have at least sevenny-five square feet of personal living space and only those prisoners who have been classified as Minimum or Median Security shall be housed in dorcitories;
(10) each dormitory shall bs equipped with at least one. toUet to every 15 prisoners; one urin.il or onu foot of urinal troush co every 15 prisoners, one shower to every 15 prisonsrs and one sink to every .10 prisoners. Toilets and urinals r:hall bu ko.pt reasonably clean and in good working order.

2/

Also before theCourt la the question of defendants' compliance

with paragraph 2(b) of the Att^i^t 10 Order and plaintiffs'

notion forcontempt fornoticor.:nLir.nco with 2(b). Parn^rnph 2(b) established pcrcian^-nt !:rt.ni:nijn physical standards, by

reference CO p.ir.-igrapli A, for housing pretrial d«tainee$.

By an order of February !..'•, 1973, this Court permitted da-

fftndanc* to continue: co use, during th« intarizi period, the

Maximum builtliii.^ for houriiu:3 protrial detainees, provided

thac they be physically separated from the sentenced

prisoners. As such, the interim requirement of "economically

feasible.and practicable" minimum standards of 3(c) became

the interim standard forjudyinj; intoria compliance with 2(b).

Today's opinion and order is hereby mad« Applicable to the

question of defendants' compliance with 2(b).

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.3/ The Court oa ics inapcccion nlsrt louacl loosti ceiling tiles in chc cell block, adefer.c nor mentioned by the: experc witness.

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 "faff*

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al. )

v.

) Civil Action No. 74-172

J. JOSEPH GARRAHY, et al. )

THOMAS R. ROSS, et al. ' )

v.

) Civil Action No. 75-032

J. JOSEPH GARRAHY, et al. )

OPINION
PETTINE, Chief Judge. The Special Master's findings of fact and recommendations are now before me for review, a ruling andthe entry of an appropriate order. Clarity and understanding requires acquaintance with the history of this complex matter which dates back to December 3, 1979, when the defendants filed simultaneously a motion requestingthe Court to reverse its 1977 decision that the Maximum Security facility of the Adult Correctional Institutions (ACI) was unconstitutional and their third draw-down plan for the reduction andredistribution af the population of Maximum Security. These pleadings obviously were contradictory; while the request that the Court reverse its finding of unconstitutionality presumably reflected the defendants' intention to continue use of Maximum Security, the draw-down plan contained the defendants' latest schedulefor
•Hippiin Palmigiano v. Travisono

responding to the Court's requirement to abandon that facility. Since the draw-down plan responded directly to the Court's August
10, 1977 Order to close Maximum Security upon the scheduled opening of the new High Security Facility (Supermax), the Court turned first to it, while withholding judgment on the motion to modify its condemnation of Maximum Security. The key component of the defendants' draw-down plan, which was first rejected by the Court and subsequently resubmitted, was a proposed expansion of Supermax from its present capacity of 96 to 260. The expansion, completion of which would enable the defendants to close permanently the present Maximum Security facility, was to cost the State some $5.83 million, and a special bond issue referendum for that amount was submitted to the voters on July 29, 1980.
When the voters overwhelmingly rejected the bond issue, the defendants once again found themselves with no meaningful plan for the reduction of the population of Maximum Security as required by the August 10, 1977 Order. The defendants, therefore, renewed their request that the Court review their efforts to improve coditions in Maximum Security over the past three years and reconsider its stand on the unconstitutionality of the facility. Indeed, if the defendants are now to prepare a realistic draw-down plan, they must know whether and for how long they will be permitted to retain part or all of the present facility in operation.
It could be said that this is a time of crisis in the long development of this suit. In August, 1977, this Court unequivocally ordered the
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defendants to close Maximum Security. That order followed a showing
that the:
Maximum Security Building has outlived its usefulness. It is incapable of being safely used for any group of inmates requiring security control, or indeed even for more than 300 minimum security inmates who work all day in outside-the-prison programs. The Maximum Building is incapable of any use for any number of inmates without jeopardizing their physical health and safety without massive reconstruction, which it is agreed by all is financially unfeasible. The Department's own architect gave his opinion that Maximum is useful only as a warehouse, which, indeed, it has become. Palmigiano v. Garrahy, 443 F. Supp. 956, 977 (D.R.I. 1977}
Originally, the closing of Maximum Security was to occur within a
year of the August 10, 1977 Order; later the closing was extended to
December 31, 1979 and, finally, it was made contingent on occupation of
Supermax tj the defendants. The time of that last extension is at hand,
and the Department of Corrections is presently making final preparations
to move into Supermax. Under the standing order of this Court, use of _
* The situation is further complicated by the fact that the present Maximum Security facility houses both convicted offenders and pretrial detainees. The former were to have been removed on completion of Supermax; the latter on completion of the Intake Services Center, a facility currently under construction and scheduled for completion in April, 1981 for pretrial detainees and convicted offenders undergoing the admission and orientation process. This opinion treats directly only convicted offenders, who under existing court orders are required to be removed from Maximum Security as Supermax opens; the defendants continue to have until the opening of the Intake Services Center to remove pretrial detainees from Maximum Security.
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Maximum Security is supposed to terminate when that occupation is completed.
As long ago as January, 1979, the Special Master reported to the Court the fact that the population projections upon which the defendants had relied in their plans for an end to the use of Maximum Security had gone badly awry. The first two draw-down plans submitted by the defendants in February, 1978 and September, 1978 both anticipated that a stable overall population and improved classification would reduce the number of prisoners at the ACI requiring maximum security custody to under a hundred, the projected size of Supermax. In January, 1979, however, the Special Master pointed out that, after some initial decline in the number of prisoners at the maximum security level of custody at the ACI, the number was swelling steadily and already had reached approximately 225. The defendants' planning assumptions about a stable population and the impact of improved classification turned out to be unfounded. These new figures were clearly a cause for alarm, since less than half could be accommodated in Supermax and Maximum Security was to be closed when Supermax opened.
In the intervening 21 months since the Special Master raised that issue, the defendants have struggled unsuccessfully to come to grip,s with the inexorable logic of the new numbers. In May, 1979, they sought the Court's permission to improve substantially and retain a portion of the
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old Maximum Security facility (Cellblocks GHI and JKL, including the present Behavioral Custody Unit or BCU); in December, 1979, defendants scrapped that plan and proposed the $5.83 million expansion of Supermax, which implied at least an intention to close the present Maximum Security.
In hindsight, it is difficult to discern whether the defendants ever took their expansion plan seriously. The likelihood of passage of the bond issue was miniscule; the Department's justification for the expansion was riddled with inconsistencies and unsupported by convincing data; the defendants continued to press for a legislative appropriation to renovate Cellblocks GHI and JKL (BCU); and, finally, they offered the Court no alternatives to the expansion project as a fall-back or contingency position should the bond issue fail. It is not hard to see in this pattern either an unwillingness to plan aggressively to meet the Court's order or a gross deficiency in planning skills. To no avail, the Court and the Special Master repeatedly have suggested over the past two years a range of alternative approaches to the pending crisis that the defendants might pursue, but each suggestion has been rejected out of hand by the defendants. Thus it happens that the defendants now, on the eve of their occupation of Supermax, look to the Court to rescue them from the dilemma of their own making by reversing its finding that Maximum Security is an unconstitutional facility.
The chief argument for their motion advanced by the defendants is that improvement of conditions has brought Maximum Security into compliance with all of the mandates of the August 10, 1977 Order, thereby rendering the sum of the "totality of conditions," found in 1977 to entail cruel
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and unusual punishment, substantially less today. On review of the defendants' motion after defeat of the July bond issue, the Court decided that the request involved factual allegations about improvements at Maximum Security and a separate, legal argument relative to the impact of such changes on the Court's August, 1977 Order. Because the factual allegations asserted compliance with the August 10, 1977 Order, I directed the Special Master to hold hearings and provide me with findings of fact and recommendations relative to the defendants' factual representations. Depending on the Special Master's findings, I would consider the defendants' legal argument that any improvements constituted "changed circumstances" in the totality of conditions underlying my 1977 determination that the facility was unconstitutional.
As directed, the Special Master held hearings in August and submitted findings of fact and recommendations in September. The parties were given until mid-October to file objections to those findings and recommendations. Essentially, the Special Master reports that:
1. While there has been improvement of physical conditions in Maximum Security, no single section of the facility currently meets the same minimum standards of health and safety imposed by the Court's August 10, 1977 Order on all other facilities of the ACI intended for permanent use; and
2. Programming in Maximum Security continues to be inadequate and out of compliance with provisions of the August 10, 1977 Order.
These findings were not disputed by the defendants who have
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characterized the Special Master's conclusions as "fair and objective." Physical conditions and programming were central elements in the Court's 1977 finding that Maximum Security was unconstitutional; living conditions and idleness were the focal points of the Court's opinion condemning conditions in the old facility. Thus, the defendants have failed to establish the factual basis for their motion, namely, compliance with the pertinent provisions of the August 10, 1977 Order. In fact, the uncohtroverted findings of the Special Master indicate that in the two vital areas of physical conditions and programming there are substantial shortcomings. Therefore, the defendants having failed to establish a factual basis for their motion, the Court need not discuss the legal questions inherent therein. Accordingly, the Court rejects the defendants' motion for reversal of its 1977 declaration that Maximum Security is unconstitutional .
This ruling can give rise to problems of infinite complexity. Indeed, were the Court to insist on immediate and full obedience to its order, the correctional system of the State of Rhode Island would be thrown into complete chaos as it scrambled to find places of confinement for the some 170 maximum security inmates who cannot be housed in Supermax. The Court has ordered Maximum Security to be closed; the occupation of Supermax is at hand. The defendants have neither devised nor offered an acceptable plan for closing Maximum Security and apparently are confident that this Court will not step in and order them to close the facility down forlhwvth. The plaintiffs have a right to the legal remedy prescribed by this Court over three years ago and can well argue that by not effecting its order the Court is remaining hostage to the defendants' inability to
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plan and perform.

The maintenance of the integrity of the judicial system cannot

countenance the disobedience of its orders absent compelling justifica-

tion"! The Court reluctantly concludes that this case falls within that
•>
extremely narrow category of cases where noncompliance must be tolerated

at least for the moment. The situation at hand requires pragmatic con-

sideration of the consequences that will flow from an inflexible judicial

attitude. The Court's insistence on an immediate closing of the facility

could force the transfer to other state and federal correctional systems

of some 100 to 150 Rhode Island inmates. Even if other systems were wil-

ling to absorb these prisoners, a doubtful prospect given the serious

overcrowding of correctional facilities nationwide, the result would be

serious and counterproductive disruption of the transferred prisoners'

family and community ties. Nor, for obvious reasons, is the Court about

to order the State of Rhode Island to release large numbers of maximum

security inmates from the ACI.

Fortunately, there is a barely discernible path out of this

~

thicket of difficulties. While no portion of the old Maximum Security

facility presently meets minimum standards of health and safety, the

defendants, with appropriations totaling $451,000 provided by the State Legis-

lature in its 1979 supplemental budget, now are in the process of initiat-

ing repairs that will bring Cellblocks G-H-I and J-K-L (BCU) substantially

closer to compliance with minimum physical standards of health and safety

by Vid-1981. The defendants will be able to provide these cellblocks with

-8-

hot water and adequate plumbing and lighting, as well as some improvements in ventilation and the elimination of most fire safety deficiencies. By the reckoning of the defendants' own architectural engineers, however, these improvements will not ensure full compliance with minimum health and safety standards, which will require an additional estimated $560,000. Nonetheless, the cellblocks will be adequate for housing inmates in conditions meeting constitutional requirements for at least an additional three years after the completion of repairs or through 1984.
. As for the second major deficiency, programming, the reduction of the population of the Maximum Security facility to the capacity of Cellblocks G-H-I and J-K-L (BCU) will eliminate'program problems, so long as those work and educational opportunities now available in Maximum Security are left behind when inmates are transferred to the new institutions. While current programming is totally inadequate for the 260 to 270 sentenced offenders now residing in Maximum Security, they would be more than sufficient for a reduced population of approximately 120 inmates.
Thus, the two areas of most glaring deficiency vis-a-vis the August 10, 1977 Order, physical conditions and idleness,.would be addressed in the retention of only Cellblocks G-H-I and J-K-L (BCU) after July, 1981. Moreover, the 126 cells in G-H-I and J-K-L (BCU), when combined with the 96 cells of Supermax, would give the defendants a capacity to house up to 226 maximum security prisoners. With some tightening of classification, the winnowing out of Maximum Security of medium security inmates who have thus far been allowed to remain there despite ..their lower custody level
-9-

and with a few occasional transfers, the defendants should be in a position to deal effectively with the entire current sentenced population of maximum security offenders through the end of 1984.*
To be sure this is a temporary expedient that simply postpones the defendants1 underlying need to develop long-range solutions to their population difficulties. But it does provide the defendants with sufficient time to plan for the future and develop resources without the immediate crisis of total loss of the present Maximum Security. If the defendants decide to expend the funds required to bring Cellblocks G-H-I and J-K-L (BCU) into full compliance with minimum standards of health and safety, there is no reason why they should not be permitted to retain those areas in use permanently. On the other hand, they may wish to renew their efforts to expand Supermax, although that would appear to be a far more costly option. Whichever approach they elect, they win hereby some breathing space within which to plan and work.
By electing to renovate and save Cellblocks G-H-I and J-K-L (BCU) alone, the defendants have foreclosed the use of other areas. It is clear from the Special Master's report, as well as from pertinent depositions filed with the Court over the past two years in this case, that some portions of Maximum Security are in a serious state of disrepair and even structural decay. The defendants have conceded that the cost of rehabilitating
*Again, we are dealing here only with sentenced inmates classified at the maxjjnum security level of custody; pretrial detainees and offenders undergoing admission and orientation will be housed 'in the Intake Services Center in 1981.
-10-

Cellbiocks A-B-C, D-E-F and P-Q-R would be enormous; they have never
even suggested their renovation and rescue to the Court. It is clear

that these portions of Maximum Security must be closed. When the new

Intake Services Center becomes available to house the pretrial detainees

currently residing in Maximum Security, an event now scheduled for the

Spring of 1981 but unlikely to occur realistically before July, 1981,

the defendants must discontinue completely and permanently their use of

these cellblock areas. Neither the pressures of population nor arguments

of convenience will excuseaevTation from this schedule. Cell blocks A-B-C,

*^_

-——•

"

»

D-E-F and P-Q-R are to be closed forever for further housing of prisoners

at the ACI after occupation of the Intake Services Center; the use of these

areas thereafter will result in the levy of immediate and automatic sanctions

against the defendants.

In his findings of fact and recommendations, the Special Master

indicated that one last residential area of the present Maximum Security

facility, Cellblock M-N-0 with its 78 cells, might be capable of renova-

tion and rescue. To date, however, the defendants have neither plans nor

resources to carry out such a rescue. Since the defendants have seen fit

to do nothing to evaluate or analyze this possibility, the Court is not

prepared to be particularly flexible. If the defendants wish to retain

use of Cellblock M-N-0 beyond the opening of the Intake Services Center

in July, 1981, it must submit within 30 days of this order a detailed plan

for interim or permanent upgrading of physical conditions therein. The

plan also must include specific provisions for expansion of work oppor-

tunities for the total of some 190-200 offenders that potentially could be

confined in Cell blocks G-H-I, J-K-L (BCUl and M-N-0. The preliminary

estimates of the defendants' architectural consultants indicate

-11-

that full renovation of Cell block M-N-0 will require expenditures of approximately $590,000. Defendants additionally must have in hand the funds to conduct either interim or full repair of Cellblock M-N-0 by July, 1981, if it intends to retain the cellblock in use. Unless such funds are allocated by mid-1981, this Court will require the immediate and permanent closing of the cellblock. Should the defendants procure sufficient funds to conduct interim repairs nf M-N-0 Cell block and expand work programs in Maximum Security, they will be permitted to keep it open through 1984; should they procure enough to complete renovation and bring the cellblock into full compliance with minimum health and safety standards, they may use the cell block permanently.
It is not without grave misgivings and some reluctance that the Court adopts this way out of the present predicament. It does so partly because there has been considerable amelioration of overall living conditions at Maximum Security despite continuing physical and programming deficiencies. The Special Master has reported consistently that the abhorrent sanitation situation in Maximum Security of 1977 has been reversed dramatically; that considerable, though limited, physical improvements, such as the repair and renovation of broken windows, railings, screens, ceiling tiles, some shower areas and ventilation, have occurred; and that staff and prisoner relations and morale have improved markedly. Moreover, the appropriations for undertaking interim physical repair of Cellblocks G-H-I and J-K-L (BCU) are no longer merely figments of the defendants' imagination; they have already been allocated by the Legislature
-12-

and are currently available to the defendants. Engineering work on the repairs is complete and bids for contractors to perform the work are about to be solicited. The repairs to be carried out with these appropriations, moreover, have been identified by an independent sanitarian from the U. S. Department of Public Health brought in by the Court in mid-1979, so the Court has reasonable assurance that they will address adequately real deficiencies. Thus, the prospects for Cell blocks G-H-I and J-K-L (BCU) meeting most of the physical requirements of the August 10, 1977 Order by mid-1981 are excellent.
Throughout the long history of this case there has always been confusion about the Court's role in remedying the unconstitutionality it found in 1977, a confusion perhaps deepened by the Court's appointment of a Special Master to oversee implementation of its complex order. It has never been the function of either the Special Master or the Court to operate or administer the Rhode Island Department of Corrections. Rather, after finding that the State's correctional facilities imposed cruel and unusual punishment on prisoners, the Court directed the defendants to alleviate certain identified impermissible conditions expeditiously. The selection of operational means for bringing about change and eliminating impermissible conditions has always been in the hands of the defendants. Over the course of the past three years, when the defendants have moved more slowly than the Court believed necessary, it has not hesitated to use the threat of contempt to prod the defendants to faster action. That is a different matter. Where the defendants have chosen alternatives that
-13-

the Special Master and the Court viewed as counterproductive or rejected options that we thought meritorious,the Court has carefully avoided imposing our solutions. Both directly and through its Special Master, the Court has offered criticism, condemnation, encouragement and suggestions; it has often said what the defendants cannot do; it has frequently interpreted the requirements of various professional standards; but it has never told the defendants what they must do operationally to meet the court's requirements.
I must note that while the Court has persistently reminded the defendants of its order requiring them to close Maximum Security, it has never ordered the defendants to carry out specific measures, such as transfers, new construction or relocation in particular institutions, to effectuate the order. The Court has criticized what it saw as overclassification, but has never required that specific percentages of the ACI population be at any specific level of custody; it has suggested alternatives to new construction, but never forbidden the state to go ahead with such construction; it has discouraged renovation of the existing facility as economically unfeasible, but has not prohibited the defendants from undertaking such renovation. The State, from the beginning, has had complete control over its own means for achieving Court-mandated objectives.
And that is the way it must be under our form of government. In this case the principles of both federalism and the separation of powers req'uire the Court to monitor results not dictate means. So long as the defendants bring their correctional facilities into compliance with constitutional requirements, which the orders in this case reflect, this
-14-

Court will not and cannot intervene in the operations of the Rhode Island Department of Corrections. Executive agencies under a court order are free to conform in any fashion they choose, no matter how foolish or costly the mode of compliance may seem to the courts. Thus, while this Court has suggested different approaches to the defendants for meeting its orders, it has carefully refrained from imposing specific solutions on the defendants.
But time is running out for the defendants. While John Moran has proven adept at reshaping a system hovering on the brink of chaos into a controlled and professional one, he has been unable to chart a stable, future course. Well over three years have passed since the opinion in Painrigiano was entered; John Moran has been in Rhode Island almost three years now and the Court still does not have a firm draw-down plan. Thedefendants can no longer plead ignorance of what the Court will allow, for that is now plain. Cell blocks A-B-C, D-E-F and P-Q-R must be closed down permanently in July, 1981; Cellblocks M-N-0 also must be closed down permanently unless the defendants provide a plan for its retention within 30 days of this order and have money in hand to complete at least interim repairs by July 31, 1981; Cellblocks G-H-I and J-K-L (BCU) must be closed down by December 31, 1984 unless it has been brought into compliance with minimum health and safety standards. The Court will entertain no further excuses for failing to meet these deadlines.
It is also time to wind down the special mastership. The purpose for my appointment of a Special Master was to ensure that the provisions
-15-

of the August 10, 1977 Order were carried out. The extent to which that has been accomplished is as much a tribute to the services of the Special Master as it is to the defendants' efforts, and the list of accomplishments is substantial: a dramatic change in leadership in the Rhode Island Department of Corrections; the separation of pretrial detainees from sentenced offenders; interim physical improvements of Maximum Security; programming improvement in Medium Security through erection of the Butler Building; acquisition and renovation of the "B" Building for minimum security inmates; a detoxification program; a residential drug treatment unit; expanded counseling services, particularly in the area of substance abuse; improved medical care; reduction of the protective custody inmates; an improved classification process with at least semiannual review; expanded education and avocational programs; over $800,000 worth of repairs and renovation in Medium and Minimum Security; improved, mental health programs; an appropriation of $451,000 to upgrade physical conditions in Cellblocks G-H-I and J-K-L (BCU).
In addition, the Special Master has served as an ombudsman in the Rhode Island correctional system, a role reluctantly assumed because of the long and continuing absence of an effective administrative grievance process. In the course of this task, the Special Master has responded to literally thousands of letters and personal requests over the past three years. He has also undertaken frequent prison-related assignments from me, including involvement in the development of a legal library at the ACT, the negotiation of an end to the lock-downs that have occurred during the past three years and the investigation of cases brought to my attention by imDortuning prisoners. He successfully mediated the renegotiation of
-16-

the Rhode Island Training School for Youth consent decree which was finally entered in February, 1979. He has produced dozens of reports, each of which has been fair, accurate, balanced and exceptionally wellwritten. Finally, he has been an unfailing source of wise and moderate counsel and advice to me as I have wrestled with the many, complex prison-related issues coming before me over the past three years.
When I recruited J, Michael Keating, Jr. to come to Rhode Island to serve as Special Master, I promised him the job would last no more than a year. Without complaint he has served full or part-time for over 27 months. I must let him get on with his life, but I view his departure with a profound sense of professional and personal loss. I have come to admire and trust his intelligence, candor, sense of humor, articulateness, dedication and integrity. I am delighted that he intends to remain in Rhode Island to practice law.
I have directed the Special Master to wind up the affairs of his office during the next 60 days, using as much time as he requires to complete that task. As of January 15, 1981, the Office of the Special Master shall cease to function on a regular basis. I will, however, request that Mr. Keating review pending matters in the suit and report his findings to me quarterly at least through 1981. At the end of that year,_the Court will consider the need to continue these quarterly reports. In addition; throughout 1981 I will continue to call upon Mr. Keating to conduct specific investigations relative to matters in the Palmigiano suit as needed from time to time. The Court, of course, will retain jurisdiction
-17-

over the case so long as unfulfilled deadlines, the latest of which is now December 31, 1984, remain.
I hope this is the last major opinion in the Palmiqiano case. There is no reason why the schedule outlined here for a reduction of the use of Maximum Security cannot be accomplished. Only if the State abandons firmly and completely its past pattern of delay on this issue, however, is that wish likely to be fulfilled.
''-\pjj,; v••-co-OS V - '\<C:\tW..»v
Cliiief Judge ^ '
November ft , 1980
-18-

 
 Palmigiano v. Travisono
llllllli *

PC-RI-001-005
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND *

NICHOLAS A. PALMIGIANO, e t a l . , v.
J . JOSEPH GARRAHY, e t a l . THOMAS R. ROSS, e t a l . ,
v.
J. JOSEPH GARRAHY, et al.

)

) ) - C.A. No. 74-172

)

)

)

)

)

)

C.A. No. 75-032

)
)

MODIFIED ORDER

On May 1 2 , 1986, the Court issued an opinion setting forth

findings of fact and conclusions of law resulting from an

evidentiary hearing in December 1985 and also issued a further

remedial order in this case. On May 2 2 , 1986, the defendants

filed a motion to alter or amend that order and on June 16, 1986,

a status conference was held in chambers on defendants' motion

with allparties present.

~

At the said conference, all parties agreed to certain

modifications of the May 1 2 , 1986, order and further agreed to

waive all rights to appeal the May 1 2 , 1986 order and this

modified order. The Court is of the opinion that the agreed

modifications are consistent with the findings of fact and

conclusions of law contained in its May 12, 1986opinion and that

justice would be served by modifying its order as agreed to by «. -_. —.

the parties.

It is therefore theorder, judgement and decree of this Court

that:

1. Paragraph A.I of the May 12, 1986order is modified so

that effective immediately the defendants are enjoined from

-2-

housing any more than 268 inmates in Medium Security.

The defendants will come into compliance with paragraph

4. (a) (9) of the August 10, 1977 Order within one year, and I

enjoin the defendants at that time from exceeding the following

population limits for the respective dormitories:

A Dorm

45

B Dorm

45

C Dorm

.

45

D Dorm

30

A Honor Dorm

21

Total

186

Together with the 36 cells in CBS and DCB cellblocks,

which are required to be single occupancy, this places a

population limit of 22 2 inmates, some 40 inmates above the design

capacity.

__

The defendants shall make a good faith effort to-reduce

the population below 268 during this one year period and shall

file a report setting forth the population every four months

commencing four months from the date of this order.

2. Paragraph A.2 of the May 12, 1986 order is modified so

that effective July 1, 1986, the defendants are enjoined from

housing any more than 250 inmates at the Intake Service Center.

Thereafter, the defendants shall be enjoined from--bousing any

more than the following numbers of inmates on the following

respective dates:

January 1, 1987

240 inmates

April 1, 1987

230 inmates

-3-

July 1, 1987

220 inmates

October 1, 1987

210 inmates

January 1, 1988

200 inmates

April 1, 1988

190 inmates

July 1, 1988

180 inmates

October 1, 1988

168 inmates

In the event the defendants do not reduce the population

sufficiently at any of the.above stated times, they are enjoined

from accepting any new inmates unless and until the population is

below the population cap at that time. On each of the dates

specified above, commencing with July 1, 1986, the defendants

shall file a report setting forth the population.

At any of the above stated times, the defendants may

file a.motion requesting that they be permitted to maintain the

population at the level then required by this order, without

further reduction, on the grounds that the defendants can

establish at that time that they can maintain that population and

are meeting and can continue to meet all other requirements of

the August 10, 1977 Order as amended and all relevant

constitutional standards.

Commencing July 1, 1986, no inmate shall be double-

celled at the ISC unless that inmate is provided with at least

ten hours each day out of his cell and no inmate' shalJL be double-

celled for more than thirty days.

3. Paragraph B. of the May 12, 1986 order is modified so

that the defendants will come into compliance with paragraphs 5

-4-

and 2. (c) of the August 10, 1977 Order as amended within six

months.

4. Paragraph C. of the May 12, 1986 order is modified SO

that the defendants will file the plan required by that paragraph

with the Court, with a copy to counsel, within sixty days of the

May 12, 1986 order.

5. In the event of an emergency caused by a riot, strike,

fire or other events not caused by the defendants, their agents,

employees, successors in office, and those acting in concert with

them, which makes compliance with the population limits of this

order as modified temporarily impossible or inconsistent with

security, it may be necessary to suspend temporarily said

population limits upon the following conditions:

—

a. The defendants will give immediate telephonic

notice of said emergency to the Court, _the Special Master, and

counsel for the plaintiffs setting forth the terms of the order

they wish suspended, the nature of the emergency situation, the

reasons why the suspension is necessary, and the expected

duration of the suspension.

b. Written confirmation of the provisions of

paragraph a. above shall be made to the Court, the Special Master

and plaintiffs' counsel within five days.

c. No suspension under this ''provision shall

continue for more than five days from the date of the suspension.

6. All provisions of the May 12, 1986 order not expressly

modified herein shall remain in full force and effect.

Enter:

-5By order, Deputy Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et si., )

)

v.

)

)

J. JOSEPH GARRAHY, et al.,

)

)

THOMAS R. ROSS, et al.,

)

)

v.

)

)

C.A. No. 74-172 C.A. No. 75-032

J. JOSEPH GARRAHY, et al.

)

ORDER

There are two motions pending in this case, one to

maintain a ceiling of 250 on the population of the Intake

Services Center (ISC) for pretrial detainees in the Rhode

Island Adult Correctional Institutions (ACI), the other for a

continuation of a population cap of 268 in Medium Security

until the completion of a new facility in November, 1989. In

addition, the Court entered an order on June 9, 1987, which

cave the defendants until August 1, 1987 to reduce the

population of the ISC to 250 or be liable for a daily fine of

$3,000 for any subsequent excess. A conference was held among

all of the parties on July 8, 1987 to consider these pending

matters and work out, if possible, a formula to resolve the

issues underlying these various motions and order.

Because the Court's continuing intervention in the ACI

must be keyed not to numbers but to the conditions that in

their totality violate the constitutional rights of prisoners,
• • f i l l i n g Palmigiano v. Travisono

the parties agreed to the necessity of developing a system of
review that focuses primarily on conditions. This focus on
conditions, however, should not obscure the Court's experience
in the long history of this case, which illustrates clearly
that excessive numbers lead almost ineluctably to the rapid
deterioration of conditions.
In fact, of course, this Court's ruling on the ISC's
unconstitutionally last year was based on a thorough
evaluation of conditions. In conferences and in a
December, 1985 hearing, it was made obvious that conditions in
the ISC relating to safety and security, medical and mental
health services, food services and sanitation and programming
were all unacceptable. In my May 12, 1986 Opinion and Order,
the defendants were found to be in violation not just of
earlier Court orders but also, more importantly, of the
Constitution:
Under the new case law, to be unconstitutional the double celling and overcrowding must impact on the basic health and safety of the inmates so as to constitute cruel and unusual punishment in violation of the Eight Amendment....
The situation here is not merely one of pure numbers. I do not look at the overcrowding in a vacuum. The experts chronicled the problems of extensive confinement: high levels of frustrations and irritation, increased assaults, high levels of idleness, serious environmental, health and maintenance problems, over-extended staff, and dangetous mental and medical health practices, all of which were linked to and exacerbated by the overcrowding. Palmioiano v. Garrahy, 639 F.Supp 244, 257 (D.R.I. 1986).
- 2-
409

As a result, I ordered gradual reduction cf the ISC's population and simultaneously directed the defendants to remedy inadequate conditions, while preserving for them the opportunity to return to the Court and argue that improved conditions warranted a halt to further population reductions. Hence, the pending motion to hold the population cap at the ISC to 250.
The defendants' difficulties recently have been further compounded by their inability to hold the ISC population even to 250. Since May of this year, they have regularly exceeded that number. They are currently rushing to refashion part of an Institute for Mental Health (IMH) facility, the Pinel Building, to provide housing for up to 30 additional pretrial detainees, an effort expected to be completed by August 1, 1987. While the population pressures of May and early June have eased somewhat, it is clear that the population cap of 250 for the ISC will be difficult, if not impossible, to maintain in the future. Meanwhile, there has been substantial amelioration of conditions at the ISC since the December, 19S5 hearing that documented the deplorable conditions referred to in my May, 1986 opinion. When the defendants returned in early 1987 to seek a freeze of the population at 250, they were able to argue that most of the conditions cited as offensive in 1985 had been
- 3-
410

substantially improved. In the most recent hearing on the plaintiffs' objections to a freeze on the population cap at 250, the plaintiffs focused solely on medical and mental health services, while conceding that other conditions at the ISC generally met applicable orders and standards.
At that May hearing, however, a number of inadequacies in mental health and medical care were identified. Some of the deficiencies were conceded by the defendants and others contested. In the July 8 conference of parties, the defendants contended that they had met all of the plaintiffs' relevant criticisms of medical services and mental health care. They went on to argue that, even when the number of pretrial detainees confined in the ISC exceeded 250, the totality of conditions of confinement comported with constitutional standards and met all applicable orders of the Court.
To resolve these outstanding issues relative to the ISC some determination of the current state of medical and mental health services is needed, as well as a system for monitoring future conditions in the facility in the face of a potentially expansive population.
The situation with regard to Medium Security is not greatly different. In the original August 10, 1977 Order in this case, the defendants were required to reduce the population of Medium Security to 222. Today, just two weeks
- 4-
411

shy of the tenth anniversary of that order, the population of the facility remains at 260 to 270 prisoners. Based on the defendants' adamant representations in a June 1986 conference that a protective custody facility would be constructed and ready for occupancy within a year, thereby permitting the reduction of the Medium Security population by about a hundred prisoners, I ordered the defendants to reduce the population of Medium Security to 222 by June, 1987, and, meanwhile, allowed them to retain that facility's population at 268.
No protective custody facility was built; no prisoners, protective custody or otherwise, have been removed from Medium Security. Instead, the defendants returned to Court in late June, 1987 to file a motion to retain the 268 population ceiling until November, 1989, by which time they pledge a new Medium Security will be complete. Meanwhile, the defendants argue, they have made Medium Security a constitutional facility, even with 268 prisoners by improving staffing, programming, maintenance and health services.
The troubles at Medium Security differ substantially from those at the ISC in one important aspect. There exists, at least, a plan to build a new Medium Security facility and the funds to do so. While the delays associated with getting the facility actually built are frustrating, eventually a new building will be constructed and available. No such denouement is promised for the ISC, for whose expansion there are neither
- 5-
412

plans nor money. Thus, any formula developed now to keep a finger on the pulse of conditions at the ISC can be expected to be needed for, at least, the next five or six years. To meet the need to fashion a monitoring framework for conditions in the ISC and the Medium Security, it is hereby
Ordered A. The Intake Service Center (ISC)
The Special Master shall make arrangements immediately for an expert, independent review of medical services and mental health care in the ISC to assess the defendants' compliance with applicable orders and standards, with special attention to those issues raised during the May 22 and 23 hearing. Any deficiencies identified for the Court by the neutral expert shall be addressed and remedied by the defendants within 30 days. At that point, the population ceiling of 250 shall be lifted.
If the defendants fail to remedy reported deficiencies within the time specified, the population cap shall revert to 250, and the defendants shall be required to show cause why they should not be held in contempt.
Thereafter, at six-month intervals, a monitoring team consisting of three members (one with expertise in correctional medical services, one in jail/prison operations and one in correctional environmental and sanitation matters) will review conditions at the ISC. If, however, prior to this scheduled
- 6-
413

semi-annual review, the population of the ISC should exceed a monthly average of 265 detainees for two consecutive months, the outside review shall be accelerated and conducted immediately. Whatever causes the review, the review team shall conduct its inspection and report to the Court whatever deficiencies of compliance with applicable orders and standards it may find, together with a schedule for their remedy within a fixed period'of time. The defendants' failure to remedy deficiencies shall precipitate a court hearing that shall result in a reduction of the population ceiling to 250 and may result in other appropriate sanctions. A similar inspection, and report by the three-member monitoring team shall be required immediately if the ISC population exceeds a monthly average of 280 detainees for two consecutive months, and thereafter, each time the average monthly population for two consecutive months grows by an increment of ten additional detainees (thus, when the population hits 290, 300).
Following each such review, if the defendants fail to remedy reported deficiencies within the time specified, the population cap shall revert to 250, and the defendants shall be required to show cause why they should not be held in contempt.
Whenever the defendants trigger an independent review by exceeding one of the indicated population measures, the following semi-annual monitoring shall be rescheduled to occur
- 7-
414

six months later. The purpose here is to reduce the number of

redundant inspections when possible.

Medium Security

In conjunction with the immediate review of medical

services and mental health care conducted at the ISC, the full

three-member team shall conduct a broader review of all

conditions at Medium Security. The standards for this review

shall be compliance with all outstanding orders of the court

and various standards applied thereunder. The defendants shall

be required to remedy any deficiencies reported to the Court by

the monitoring team within 30 days or within a time frame

identified by the review team as reasonable.

If the defendants fail to remedy the deficiencies

reported as a result of the review, they shall be required to

show cause why they should not be held in contempt for'

violation of existing Court orders. The Court, moreover, shall

consider immediate reduction of the population of the Medium

Security to 222, the number originally called for in the

August 10, 1977 Order.

Thereafter, the review team shall inspect Medium

Security every six months to ensure that conditions continue to

comply with applicable orders and standards. A failure on the

defendants' part to meet these orders and standards or to

remedy the deficiencies identified by the team within a

reasonable period shall result in the issuance of a show cause

order.

- 8-

415

The defendants shall also complete the new Medium Security facility and occupy it by no later than November 1, 1989.
This order supercedes all existing orders relative to population in Medium Security and the ISC and specifically rescinds the Court's Order of June 9, 1987.
Also, because the overcrowding of ISC and Medium Security infringes on the medical and mental health services available in all ACI facilities, the monitoring team shall consider in each inspection such impact on the overall medical and mental health care provided throughout the ACI.
By Order,

ri
Enter:

Senior Judge July 18 . 1987

- 9-

416

FOOTNOTE 1. Among general issues raised in the May 22 and 23 hearing which should be addressed by the independent medical/correctional expert, are the following:
• Staffing (medical, dental, nursing, mental health)
• Internal quality assurance system • Administrative, central management of the health
care delivery system • Emergency plans • Procedures and protocol
Specific issues include: • A tracking system for the chronically ill • Physical examinations on intake • First aid kits • Dispensation and control of psychtropic
medicines (stop-orders) • An on-site EKG • Suicide prevention plans and programs • On-site IV solutions
417

CHAMBERS OF RAYMOND J. PETTINE
SENIOR JUDGE

UNITED STATES DISTRICT COURT
DISTRICT Of RHODE ISLAND
PROVIDENCE. RHODE ISLAND O29O3
January 23, 1989

Memorandum To:

George M. Cappello, Esquire John Moran David Dugan, Esquire Peter Palombo, Esquire

Re:

Palmigiano v. DiPrete

C.A. No. 74-0172 P

Having received and studied the State of Rhode Island's Initiatives to

Reduce the Inmate Population at the Intake Service Center submitted to

this Court on December 30, 1988, I am now writing to inform you of my

initial response and to tell you what issues I expect you to address at

the conference scheduled for January 31, 1989. Although I find the

comprehensive approach outlined in the plan to be very laudable and, as

you say, "a rational and sensible means" of providing a long-term solution to the overcrowding problems besetting the A.C.I, as a whole, I also find

\y

that the proposals as they now stand appear to do little to alleviate the _

immediate overcrowding crisis at the I.S.C. At this stage in this crisis,

nothing will suffice to satisfy the October 21, 1988 Order of this Court

except an immediate reduction of the population at the I.S.C. As I

contemplate your report, it seems to me that the only way to comply with

this requirement in the short-term is through some combination of home

,corifine_ment, prg^trial -s'5rvlc'eS~(.especially contemplating release-on-recogmzance1) ^and ha-ii fiiTid—PXograms. I find the bail fund

option especially viable fTven" tne aata that the State submitted to the Court in Appendix F of its plan, in which the Department of Corrections reported that 42.2% of all awaiting trial inmates were being held for want of $5,000 or less cash bail on November 17, 1988. In light of the above, I expect discussion at the January 31st meeting about exactly what the State is doing to devise some such combination of services to reduce the pre-trial detainee population by February 20, 1989.

Although I am concerned that the plans as submitted do too little to address the immediate crisis at the I.S.C, they do make several proposals relevant to the reduction of the population at the I.S.C. However, necessary specifics are lacking. I expect that you will addressthe following issues at the meeting on January 31st:

418

1) ISC EXPANSION (Defendants' Initiatives, p.9)
The ISC expansion, which would provide 192 additional beds, was approved by the Public Buildings Authority last spring. What is the current status of the project? Is the Cranston City Council scheduled to vote on the project and if so, when? Are alternatives to local approval being considered?

2) PUBLIC BUILDINGS AUTHORITY PROJECTS (pp.8-9)

,»*«.

The schedule for the ISC expansion, along with schedules for other

projects, is shown on a timetable (Appendix C ) . According to the

timetable, occupancy would begin in February 1991. You state that "the

time frames assume selection of- the A&E by January 13th and the use of a

fast track approach."(p.9) Were architects and engineers__selecj:pd fnr the

ISC expansion by January 13TKT •Were'archlfects ^and_engineers selectedJLor

any of the projects by January 13th?

x^4~\

3) JAIL BASED NOTIFICATION PROGRAM

L

Is it true that the jail based notification program is currently

staffed by only one person? Are there

A '

program?

~

"

4) ACI PRETRIAL SERVICES UNIT (pp.22-23) You state that: "As soon as possible after the beginning of the next fiscal year, the Department of Corrections will build on the success of the Jail Based Notification Program by establishing the ACI Pretrial Services Unit. This Unit will consist of a Coordinator and two counselors." (p.22). Is there any impediment to establishing this pretrial services unit now?

5) HOME CONFINEMENT (p. 10) ^ ^ You state—that-^I-n_January_ 1989._l&gislation-w43^—be-introduced to modify this statute in order to meet the needs__sf_a_home-£onfinement 'program."jj>.. Jv'as this legislation introduced? Please provide the Court and plaintiffs' counsel with copies, Did the Legislature vote on the proposal? / You state that "In January 1989, the department will issue a Requewst for Qualifications from interested service providers r-r.d will negotiate a contract with the most qualified agency to supervise the home confinement population." Has a contract been finalized? Will pretrial detainees participate in the home confinement program

In your plan, you also theorize that the expansion of options for the sentenced population will create additional bedspace throughout the ACI and state that "In the case of the sentenced population, the chain reaction will reach all the way back to the ISC, where newly sentenced inmates will no longer need to be housed beyond the initial stages of confinement due to lack of bedspace elsewhere." Although the numbers reveal that finding other space for sentenced offenders will still laave the ISC population above the 250 population-ca.p-T-I-agxee-that the— sentenced offenders must not remain in the ISC and that moving i-v^pi elsewhere is a partial~ToTut~ib~n" to the ISC problem^ Therefore, I expect you to address the following issues relevant to the sentenced population:

—2—
419

6) USE OF THE BERNADETTE BUILDING (p.4) You state that this building will be ready for occupancy on February 15, 1989. Is this proceeding on schedule? Appendix C shows that occupancy will precede renovation. How can the building be used before the renovations are made? Can it be used during the period of renovations, scheduled for late October 1989 through June 1990 according to the timetable of Appendix C?
7) EMERGENCY CONSTRUCTION AND RENOVATION PROGRAM (pp.5-6) The plan lists five projects, totalling $8.94 million. A timetable for completion of these projects is attached as Appendix C. You state: "The time frames are predicated on a contract award date of January 13, 1989." Have all contracts been awarded for all five projects? If not, what is the schedule for awarding these contracts?
8) HALFWAY HOUSE (pp.11-12) You state: "Pursuant to Executive Order 88-15, in January 1989 the Department will issue a Request for Qualifications. It will negotiate a contract to operate this facility with the most qualified responding agency." Has the Department issued a Request for Qualifications? When will the Department make its decision? Have any efforts been made to locate suitable premises?
/- 9) MANAGEMENT STUDY/POPULATION PROJECTIONS (pp. 36-37) Z' You state that the Department of Corrections has just begun to develop / the capacity to analyze its pretrial population in a sophisticated way and / that the Department is now completing its first project, a "snapshot" of / the awaiting trial population as it appeared on November 17. 1988. Please
make a complete copy of that data available to the Court and to plaintiff's counsel at the January 31st meeting, or sooner if possible.
If there are any other facts which bear on the reduction of the population at the I.S.C., bring them to my attention at the January 31st conference. I repeat at this time, the overcrowding crisis at the I.S.C. transcends all other problems and requires immediate attention.
Very truly yours,
y p J. Pe<tine Senior Judge
RJP/lcs cc: Alvin J. Bronstein, Esquire
J. Michael Keating, Jr., Esquire
-3-
42n

 
 DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al. , v.
J. JOSEPH GARRAHY, et al.

C.A. No. 74-172

THOMAS R. ROSS, et al.,
v.
J. JOSEPH GARRAHY. et al.

C.A. No. 75-032

ORDER On Wednesday, October 28, 1987 the Court conducted a chambers conference to review the Defendants' Initiatives to Reduce the Inmate Population at the Intake Service Center submitted to the Court on October 20, 1987. The following parties were in attendance: J. Michael Keating, Jr., Esquire, Special Master; Alvin J. Bronstein, Esquire, for the Plaintiffs; John J. Moran, Director of Corrections, David W. Dugan, Esquire, Special Assistant Attorney General, John Biafore, Esquire, Legal Counsel to the Governor, Joseph J. Reilly, Deputy Director of Policy, Governor's Office, A.T. Wall, Assistant Director, Policy and Development, Jeffrey Laurie, Deputy Assistant Director, Rehabilitation Services, Joseph DiNitto, Assistant to the Director, George M. Cappello, Esquire, Associate Director, Legal Services for the Defendants. The Court requested that the parties present respond to the Defendants' plan to reduce population at the Intake Service
Palmigiano v. Travisono

PC-RI-001-007

2 Center. The Court acknowledged that the problem of escalating inmate population was indeed a difficult one to address and correct and indicated its willingness to be realistic in light of the efforts of the Governor of the State of Rhode Island and Director of Corrections to correct the undesirable situation at the Intake Service Center. Thereupon and by and with the consent and agreement of all parties present, the Court
ORDERED 1. Effective Wednesday, October 28, 1987, and continuing until January 1, 1988, the present ceiling shall be lifted to permit double celling at the Intake Service Center to allow a total inmate population of 336 at this facility.
2. On January 1, 1988,—Defendants shall make available sixty (60) beds at the Pinel Building (ISC Annex) at which time the inmate population ceiling at the Intake Service Center shall be reduced to 276.
3. On March 1, 1988, Defendants shall make available thirty (30) additional beds [for a total of ninety (90) beds] at the Pinel Building (ISC Annex) at which time the population ceiling at the Intake Service Center shall be reduced to 250.
4. Notwithstanding the population ceilings set forth in this order, the defendants shall make a good faith effort to keep the population as low as possible and limit double celling as much as possible.
5. On or before April 1, 1988, the State shall present to

3 the Court a concrete plan incorporating future initiatives to reduce the population level at the Intake Service Center.
6. The Court-appointed experts shall conduct a review of the conditions at the Intake Service Center after January l, 1988 to determine if constitutional standards are being met for the population at that time.
7. After a review of the experts' reports, by all parties, the Court shall determine whether an evidentiary hearing will be required.
8. Failure to comply with this Order shall result in heavy and substantial monetary sanctions against the defendants.
By Order,
Deputy Clerk
Istrict Judge

 
 DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., )

v.

)

EDWARD DiPRETE, et al.

)

C. A. NO. 74-172 P

THOMAS R. ROSS, et a l . , v.
EDWARD DiPRETE, et al.

)

)

C. A. NO. 75-032 P

)

ORDER

On Tuesday, January 31, 1989, the Court conducted a

chambers conference at the request of the Defendants. The

following parties were present: J. Michael Keating, Special

Master; for the Plaintiffs, Alvin J. Bronstein, Esquire and

Mark J. Lopez, Esquire; for the Defendants, John J. Moran,

Director of Corrections, Peter Palombo, Esquire, Executive

Counsel to the Governor, John Biafore, Esquire, Assistant

Executive Counsel to the Governor, Sarah T. Dowling, Director

of Planning, Governor's Office, George M. Cappello, Associate

Director, Legal Services, Department of Corrections, Ashbel T.

Wall, II, Esquire, Assistant Director, Policy and Development,

Department of Corrections and David W. Dugan, Esquire, Assistant

Attorney General.

The purpose of this meeting was to review the State of

Rhode Island's Initiatives to Reduce the Inmate Population at

the Intake Service Center submitted to the Court on December 30,

1988 in accordance with the Court's direction set forth in its

Palmigiano v. Travisono

087

PC-RI-001-009

correspondence dated January 23, 1989. After a review and discussion of Defendants' plan and response to the Court's inquiries by all present, the Court directed that the following be ordered, adjudged and decreed:
1. Defendants may house initially up to 200-225 work release inmates in the recently acquired Bernadette building provided that the facility complies with building code regulations for egress and has a smoke detection system in full operation by February 21, 19 89.
2. Defendants may house said work release inmates in the Bernadette building provided that sentenced inmates (A & 0) are removed from the Intake Service Center by February 21, 19 89 and placed within various facilities of the Adult Correctional Institutions as deemed appropriate by the Director of Corrections,
3. Defendants may house inmates in the Bernadette building notwithstanding that plumbing (for showers and toilets) is incomplete and may require ongoing work for an additional period of time.
4. Defendants shall file a report with this Court by February 21, 1989 apprising the Court of the progress of their initiatives to reduce the awaiting trial population at the Intake Service Center pursuant to the Court's inquiries in its January 23, 1989 correspondence, including the exact population at the Intake Service Center and the initiatives the Defendants will implement within the next three to six months to further
038

reduce the awaiting trial population at the Intake Service Center.
5. The Court shall conduct a compliance hearing on March 13, 1989 at 2:00 P. M.
By Order,
Deputy Clerk ,

Enter:
Seiiic^v U. S. d i s t r i c t Judge February / 3 , 198 9

089

 
 y *..

DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF RHODE ISLAND
Palmigiano v. Travisono

NICHOLAS A. PALMIGIANO, et al, V.
EDWARD DiPRETE, et al.
THOMAS R. ROSS, et al. v.
EDWARD DiPRETE, et al.

) } C.A. No. 74-0172 P
) ) C.A. No. 75-0032 P

MEMORANDUM AND ORDER
PETTINE, Senior Judge. In my Opinion and Order of April 6, 1989/ I set forth the travel of this case as it developed fromray order of October 21, 1988 when Governor DiPrete and John J. Moran, Director of the Rhode Island Department of Corrections "were found to be in contempt of court for having failed to comply with certain provisions contained in standing orders of this Court regarding conditions of confinement at the state's Adult Correctional Institutions (hereinafter 'ACI'): ... the prohibition against housing pre-trial detainees in dormitories, the limitation on double-celling any pre-trial detainee for more than thirty days, and the population cap of 250 persons at the Intake Service Center (hereinafter 'ISC'), this last having been entered with the consent of the parties. Defendants were ordered to file with the Court by November 21, 1988 a specific and detailed plan, to be approved by

the Court, which would ensure compliance with the enumerated provisions. The Court further ordered that the defendants might purge themselves of contempt by implementing, by February 20, 1989, their plan to comply with the standing orders. Finally, the Court ordered that, if defendants failed to file a plan with the Court by November 21, 1988 or if they failed to bring the ISC into compliance with the court orders by February 20, 1989, fines would accrue at the rate of $50 per day for each person held in the ISC in excess of the 250 population limit."1
Because the factual findings and legal conclusions set forth in my Opinion and Order of April 6, 1989 are relevant and pertinent to the instant matter, I do not feel it is necessary to either reiterate or summarize the same. I refer the reader to 700 F.Supp. 875 (D.R.I. 1989) and incorporate herein its factual and legal pronouncements.
On November 21, 1989, the plaintiffs filed a "Motion for a Hearing on the State of Compliance at the Intake Service Center." That motion focuses on a specific provision of the April 6 order. Because of the brevity of the memorandum in support of the motion, I quote the same in its entirety.
In its April 6, 1989 Opinion and Order, the Court stated, inter alia, that:
IT IS FURTHER ORDERED that the accrual of new fines will be suspended for six months from the effective date of this Order, at which time a cotnollanca hearing will
1 At midnight on Kay 9, 1990, there ware 557 persons housed at the ISC and 223 in the Pinel Building.

ba haid. By the date of the compliance hearing, the court expects that: defendants will have implemented the initiatives which they set forth in the December Plan and the February Report to bring the ISC into compliance with the Courts standing orders. Defendants must not rely only on the Emergency Overcrowding Relief Fund or Project Bail; they must move forward with alacrity on all fronts. Defendants are hereby put on notice that the Court will consider harsher sanctions if defendants are again found to be in contempt of court.
Palmlaiano v. Diprete^ 710 F.Supp. 373, 889 (D.R.I. 1989), aff'd. No. 89-1440 (1st cir, 8/17/89) (emphasis added).
The plaintiffs are informed and believe that defendants continue to be wholly out of compliance with the standing orders of the Court with respect to the Intake Service Center. Plaintiffs will urge the Court to find defendants in continuing contempt of court and will provide the court with a list of proposed sanctions, together with authority in support of each sanction, prior to the hearing.
Wherefore, plaintiffs, by undersigned counsel, request that the Court schedule a hearing on the current state of compliance at the Intake Service center of the Adult Correctional Institutions.
on December 5, 1989, I held a hearing on this motion; post-
hearing briefs were received in December. On January 8, 1990, the
defendants filed a "Motion to Modify Orders" and a "Motion to
Modify the April 6, 1989 Order11
...to exclude frost eligibility for Emergency overcrowding Relief Fund bail those detainees held on charges of rape (first degree sexual assault), murder in the first degree, and first degree child molestation, as well as any

I
I
defendant arrested for a crime of violence against the person while bailed under the Emergency overcrowding Relief Fund. Removing the prohibition against "dormitory11 housing of pre-trial detainees (1977 Order decretal f 2(b));
Permitting the dormitory housing in two new 40-bed units of 80 protective-custody pretrial detainees;
Temporarily (until the completion of the ISC permanent annex construction) allowing the housing of sentenced and pre-trial detainees together in the discretion of the Director of the Department of Corrections;
Temporarily (until the completion of the ISC permanent annex construction) permitting the double-celling of ISC inmates in excess of 45 days in the discretion of the Director of the Department of Corrections; and
Establishing the population cap for the Intake Service Center at 416 (four hundred sixteen) inmates.
on February 5, 1990,, I issued an order appointing Vincent M.
Nathan as an expert; I incorporate said order as part of this
Memorandum and Order and because of its conciseness, I attach a
copy hereto as Appendix A. Finally, on March 14, 1990, I issued
an order encompassing the Pinel Building (annex to ISC) as part of
this litigation.
On Hay 10, 11 and 14, 1990, I heard further evidence on the litigants1 motions, Identified supra. At the hearing, the
plaintiffs presented three experts; their testimony is summarized
aa followst

Patrick McManus2 toured the ISC in October and December, 1985, October, 1989, and May, 1990. He provided compelling testimony on the changes in the institution over the last five years. In October, 1985, the innate population stood at 345; in May, 1990, the population in the ISC vas 553.
Because of the increase and the resultant overcrowding, Mr. McManus testified that conditions in the ISC now were "much, much worse, much, much worse" than they were in 1985. Virtually no program or education space remains in the ISC; space formerly used for these activities is now used to house prisoners. Day rooms now have bunk beds; hallways, with no immediate access to toilets or showers, have been converted to housing. Even the law library houses prisoners, making it necessary for prison officials to close the library for much of the time.
In Mr. McManus"s opinion, the overcrowding in the ISC and Annex has taxed the support services and reduced recreation space for the institution, and, most importantly, created an atmosphere in which violence plays an increasingly common role. Drawing on Mr. Nathan's report, Mr. McManus considered the presence of 90 prisoners in protective custody to be an indication that the inmates viewed the ISC and Annex as "a dangerous place to live."
2 Mr. McManus qualified in 1985 aa an expert in this litigation. Ha has been the Deputy Commissioner of Corrections for Minnesota and the Director of Corrections for Kansas. Since 1985, he has served ai a special master for a federal district court in litigation over the Tennessee prisons and for the West Virginia Supreme Court in litigation over the state prison at Moundsville. Additionally, he has been a member of a compliance panel for the district court in Hawaii.

t
Moreover, Mr. Manus found the 222 disciplinary write-ups for assaultive behavior and the 72 inmate assaults on correctional officers between January, 1989 and February, 1990 "extremely high" and a direct result of the overcrowded conditions.
Mr. McManus, in response to my inquiry, felt conditions in the ISC and Annex were so serious that I must take "immediate and uncompromising action" to alleviate the overcrowding; I cannot, in his opinion, wait for the state to finish a new addition to the ISC Mr. McManus agreed with Mr. Nathan's recommendations and found the conditions in the ISC and Annex to be neither constitutional nor in compliance with my standing orders.
Theodore Gordon3 testified after Mr. McManus and covered the deficiencies in the environmental health and safety at the ISC. Overcrowding at the ISC, in Mr. Gordon's opinion, has overwhelmed the institution's maintenance and support services and, therefore, it represents "an immediate and overt threat to the inmate population." He described living conditions that, because of the overcrowding, were cramped, noisy, and stifling. The ISC did not, in Mr. Gordon's opinion, conform to this Court's standing orders or the environmental health and safety standards promulgated by the American Public Health Association ("AFHA"), standards this Court
5 Mr. Gordon testified as an expert in this Court in 1977 and 1985. He is a senior policy analyst for the District of Columbia's Department of consumer and Regulatory Affairs. That Department has direct responsibility for monitoring the compliance of the District's correctional facilities with a federal court's order. Mr. Gordon has inspected, in his estimate, three quarters of the state prisons and jails in this country and has been involved in developing environmental health and safety standards for correctional institutions.

has followed in its previous opinions. Specifically, Mr. Gordon fait that the overcrowding has
compromised the food service, maintenance, and fire safety at the ISC and Annex. He inspected the kitchens and found that the ovens and other equipment could not handle the increased number of meals the ISC had to provide. The ovens were greasy and had not been cleaned; the refrigerators were dirty, and, because they had to hold more food than they had capacity for, they could not maintain adequate food temperatures. Moreover, he found mouse droppings and evidence of roaches. Mr. Gordon concluded that the overcrowding, and the corresponding burden on the food service operation, resulted in a very serious potential for food-borne disease at the ISC.
Similarly, he found shortcomings in the fire safety at the institution. First, many housing areas either do not have adequate paths for evacuation in the event of a fire or, because of the double bunks, have obstructed paths for evacuation. Second, the fire alarms and smoke detectors have not been maintained. Finally, Mr. Gordon felt that the prison officials1 inability to maintain an adequate ventilation system exacerbated the unhealthy environment created by overcrowding.
When X asked Mr. Gordon whether I had to take immediate action or could wait for the completion of the new ISC addition, he outlined several steps the prison officials could take to remedy, at least temporarily, some of the environmental health and safety deficiencies at the ISC. First, the officials should institute a

24-hour fire watch and inspect and repair the ISC'a fire and smoke alarm system. Second, the institution should increase its maintenance staff in order to clean the ventilation system and food service area. Third, the officials should increase the number of food service staff and more closely monitor the temperatures of the prepared food. Finally, the prison officials should ensure that the bunks in the ISC are at least three feet apart and placed head to foot to decrease the risk of spreading infectious disease.
Mr. Gordon emphasized, however, that, unless the inmate population is brought down to manageable levels, any measures to improve the food service conditions would soon be overwhelmed by the burden of providing food for too many prisoners. He thought that the institution might be able to get by for another four months but "would not recommend that the Court take that risk."
Dr. Lambert King4 was the plaintiffs' final expert witness. His testimony covered the inadequacies of the medical services at the ISC caused by the overcrowding. He found that the medical and dental examination of prisoners when they arrive at the ISC failed to meet APHA standards, that screening for tuberculosis was deficient, and that the medical records were improperly documented.
4 Dr. King is the Medical Director and vice President for Professional Affairs at the Saint Vincent Hospital and Medical Center of New York City. In addition to his responsibilities for the direction of the medical services within the hospital, he is responsible for the provision of ambulatory medical, dental and mental health services at the Manhattan Detention Center in Manhattan as well as two maritime facilities housing additional inmates. He formerly served as the Director of the MontefioreRikers Island Health Services in New York city, and as a special master at the Menard Correctional Center in Southern Illinois.
8

Additionally, he felt that the medical system was drastically undersupported. A shortage of nurses, medical doctors, and physician assistants and a lack of consistent medical leadership has led, in Dr. King's opinion, to a situation in which the staff at the ISC cannot meet the legitimate medical needs of the inmates; the organization and provision of medical services at the ISC are random and chaotic.
Dr. King, in response to my questions, stated that the medical shortcomings at the ISC represented a serious and present danger to the prisoners that required my immediate intervention. I specifically asked, "Do you believe that the situation is so critical as to mandate an immediate and uncompromising intervention by this Court?" His answer was, "Yes, I do, Your Honor." He felt that I should not wait before taking action to alleviate the strain on institution caused by overcrowding. The potential for the spread of contagious disease, particularly tuberculosis, was, in Dr. King's opinion, particularly grave. Most tellingly, for this Court, Dr. King found that, in comparison with fifteen other prison systems he has inspected, the ISC is at the bottom in terms of organization, leadership, and resources.
The court appointed expert Vincent Nathan also testified. In essence, he reiterated much of what ha already submitted in his reports, which are filed as part of the record in this case. The need to expedite this Memorandum and Order, in the face, of pressing trials and other court commitments, causes me not to labor a
reiterative narrative of his report; instaad, the expert's

Executive Summary la attached as Appendix B. Suffice it to say, I adopt his overwhelming factual findings.
Excepting for Mr. Koran's testimony, I have before me an uncontradicted record of sordid and explosively dangerous conditions existing at the ISC caused by overcrowding — in many respects deja vu of the Maximum Security Section as it existed in 1977. Sjee 44.3 F.Supp. 956 (D.R.I. 1977). The record will show that I probed in vain to get some support for deferring action to November, 1990 when the new ISC permanent annex is scheduled for completion. Repeatedly, I asked each witness if I could wait and, in substance, coupled such inquiry with the further question, "Do you believe that the situation is so critical as to mandate, an immediate and uncompromising intervention by this Court?" The answer was always the same — I had to act now. In fact, I pressed Mr. McManus, who persisted in saying I should act immediately; a two month, three month or four month wait could not be tolerated.
Now, it is true Mr. Moran is of a contra mind, but it must be remembered he is on the firing line; with all due respect — and this Court does respect Mr. Moran, appreciating the Herculean task resting on his shoulders as created by the uncontrollable proliferation of inmates — I cannot accept his self-serving assessment. It is also true Mr. Gordon offered some weak support for waiting, if certain conditions were immediately and unequivocally met. However, his strong testimony describing the intolerable conditions he encountered, negated any serious thought of postponing my intervention.
10

The final, quintessential blow to defendants' request that this Court stay its hand until November was accomplished by defendants' own witness — Major John D. case. He testified that he found the conditions unconstitutional "as far as what [he] understand[s] to be at the present time," albeit he did not find "them to be unconstitutional and cruel and unusual ... when [he] was there on the 5th of December when the total count between the two institutions [he] believe[d] was — the count, the count at the jail was 526"; he hoped it would be reduced to 416.
I then asked, "Do you believe the conditions are so critical as to required immediate action?" Answer: "Yes, I do." This was followed with an inquiry as to whether or not the Court could "stay its hand11 if certain conditions ware effectuated immediately, i.e., such as correcting the ventilating system, repositioning the present health hazardous sleeping arrangements, repairing the unsatisfactory operation of the fire alarm system, instituting a 24-hour fire watch, correcting present unhealthy sanitation conditions, increasing maintenance staff, and completing the new building by November. He answered this in the affirmative but engrafted a further condition — the "release [of] sentenced inmates three months before the expiration of their sentence." I then put the following question to the witness: "Now.Mr. Nathan you know, has recommended that there be accelerated * parole consideration in this sense, that the — give them ninety days good time and that would do, if I understand correctly, would do two things. On*, it would accelerate the mandatory release time of
11

certain inmates and, secondly, it would expedite the parole hearing time on other inmates. Would you recommend that be put into effect?" Answer: "Yes, indeed, your Honor."
The record portrays an emergency situation screaming for instant action. The Court's own searching questions for an alternative approach proved to be a futile quest.
X find the defendants are in continuing contempt of this Court. Accordingly, it is hereby
1. ORDERED that defendant shall maintain at all times at least Two Hundred Thousand Dollars ($200,000.00) or, as requested by the state, its equivalent as may be acceptable by the state judiciary, to finance the Emergency Overcrowding Relief Fund to provide bail for all indigent detainees with bail set at Ten Thousand Dollars ($10,000.00) cash or less. It is further
2. ORDERED that all sentenced prisoners in the ACI shall immediately be awarded 90 days of expedited good time, which shall be applied against the maximum sentence of each affected prisoner and shall, contrary to the terms of R.I. Gen. Laws sec. 42-56-24, be deemed to advance each affected prisoner's eligibility for consideration for parole. Moreover, all sentenced prisoners, regardless of the length of their terms of incarceration, shall
12

receive the expedited good time required by this order. It is

further

3. ORDERED that expedite awards of 90 days of good time shall be made every 30 days in accordance with the immediately preceding paragraph of this order until all sentenced prisoners

,..;/ cV x L >
s-^ A
"V

have been removed from the ISC and the Pinel Annex. It is further

4. ORDERED that no later than 30 days following the entry

of this order, no more than 450 prisoners may be housed at the ISC

and no more than 184 prisoners may be housed at the Pinel Annex.

At the expiration of this 30 day period/ the parties shall meet with the Court to evaluate the progress made by the defendants.

At that time, this Court will issue orders establishing goals for

further reductions and the means to achieve these goals. It is

further

5. ORDERED that defendants shall take all steps, in addition

to those specified above, to accomplish tha maximum capacities as

heretofore established by this Court. It is further

5 Because the plaintiffs1 motion and subsequent hearings were directed only at the overcrowding in the ISC and the Pinel Annex, which house only male prisoners, the order shall apply only to male prisoners. Although the Court cannot so order, it is hoped that defendants will voluntarily apply the terms of this order, to the extent possible, to female prisoners.
The Court recognizes that the effect of this portion of its order may be that some prisoners sentenced to 90 or fewer days of incarceration will be released without serving any time in prison. First, the extreme gravity of the situation at the ISC and the Pinel Annex justifies this relief. Second, granting an award of expedited good time to prisoners with longer sentences, who presumably have committed more serious offenses, while excluding from this order prisoners whose short sentence suggest that they present the least danger to the community, would be anomalous.
13

t
I
6. ORDERED that on the 31st day following the entry of this order, defendants shall file a report of the population of the ISC and the Annex. The report shall reflect the daily population of each facility between the date of this order and the date of the report. In the event defendants fail to achieve and maintain the required maximum capacities required by this order, the Court will enter a subsequent decree enforcing the terms of this order. That decree will Include such other relief as the Court finds necessary to ensure compliance with the instant order, and may include imposition of daily fines of $50.00 per prisoner per day in excess of the relevant maximum capacity. It is further
7. ORDERED that with 60 days following the entry of this order, no prisoner shall be assigned to 4 double occupancy cell or any dormitory in the ISC, or to any multiple occupancy room in the Pinel Annex, unless that prisoner has been properly classified and
i
is housed only with prisoners of the same classification. Prisoners classified as high security, maximum security, and protective custody shall be housed in single occupancy cells, and one or more modules in the ISC shall be designated for exclusive use by prisoners requiring protective custody. Sentenced prisoners shall be classified within 30 days of sentencing and, until classification, shall be assigned to single occupancy cells in modules reserved for unclassified sentenced inmates. Modules and dormitories shall be restricted by class of prisoners (sentenced or pretrial) and, to the greatest extant feasible, by classification. It is further
14

I I
8. ORDERED that within 14 days following the entry of this order, defendant shall cause intake medical screening of all prisoners assigned to the ISC and the Pinel Annex to be completed within seven calendar days of the prisoner's incarceration. It is further
9. ORDERED that within 14 days of this order defendants shall cause the results of tuberculin skin tests to ba examined and evaluated by appropriate medical personnel no earlier than 48 and no later than 72 hours following administration of the test, it is further
10. ORDERED that within 14 days of this order defendants shall deploy security staff members whose primary duties shall be the monitoring and detection of fires and fire hazards, including but not limited to the presence of excessive quantities of flammable materials, obstructions to fire exits, and inoperative fire alarm and fire suppression equipment. Each such staff member shall be responsible for no more than two housing units in the ISC or one wing in the Pinel Annex. Defendants also shall notify the local fire marshal that the maximum occupancy capacities of the ISC and the Pinel Annex are being exceeded. It is further
11. ORDERED that commencing immediately all fire detection and suppression equipment in the ISC and the Annex shall be maintained in proper working order and shall be inspected regularly and frequently by qualified institutional personnel and representatives of the State Fire Marshal's office, it is further
12. ORDERED that within seven days of the entry of this order
15

defendants shall rearrange the beds located in dayrooms and dormitories so that beds are separated by unobstructed corridors of at least 36 inches in width. No such corridor shall terminate at either end at a solid wall. Additionally, to assist in the prevention of transmission of disease, beds in dayrooms and dormitories shall be rearranged to ensure that prisoners sleep head-to-foot. It is further
13. ORDERED that within 30 days of the entry of this order defendants shall balance and repair the ventilation system at the ISC to ensure that the system operates properly and effectively. It is further
14. ORDERED that within 14 days of the entry of this order defendants shall take all steps necessary to ensure that proper sanitary conditions are maintained in the kitchen of the ISC and the food service areas of the Pinel Annex and that all necessary precautions are taken to ensure that food is prepared and served in a manner that does not endanger the health of prisoners.
Orders numbered 1, 2 and 3 shall not apply to inmates charged with murder in the first degree, rape, first degree sexual assault, first degree child molestation, and any prisoner arrested for a crime of violence against the person while bailed under the foregoing program, supra.
16

The court-appointed Master, J. Michael Keating, Jr., shall monitor the defendants* compliance with this Order.
Enter:

By order:

Deputy Clerk'

'ettine kr U.S." District Judge
May 22, 1990

17

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., )

v.

)

EDWARD DiPRETE, et al.,

)

THOMAS R. ROSS, et al. ,

• )

v.

)

EDWARD DiPRETE, et al.,

)

C.A. No. 74-172 P C.A. No. 75-0032 P

ORDER

On Thursday, June 21, 1990, the Court conducted a

chambers conference to review the Defendants' progress and

compliance with the Court's Memorandum and Order of May 22,

1990. The following were present: J. Michael Keating, Jr.,

Esquire, Special Master; for the Defendants, James E. O'Neil,

Attorney General of the State of Rhode Island, Walter Gorman,

Deputy Attorney General, State of Rhode Island, David W. Dugan,

Assistant Attorney General of the State of Rhode Island, Peter

Palombo, Esquire, Executive Counsel for the Governor, State of

Rhode Island, John Biafore, Esquire, Assistant Executive

Counsel to the Governor, State of Rhode Island, John M. Marks,

Esquire, Vetter and White, John J. Moran, Director, Department

of Corrections, George M. Cappello, Esquire, Associate

Director, Legal Services, Department of Corrections; for the

Plaintiffs, Alvin J. Bronstein, Esquire, Executive Director,

The National Prison Project, Mark J. Lopez, Esquire, The

National Prison Project.

Palmigiano v. Travisono

PC-RI-001-011

This conference was convened pursuant to decretal paragraph number 4 of the May 22, 1990 Memorandum and Order. The Court cited the Special Master's Interim Findings of Pacts dated June 13, 1990, reviewed the Defendants' progress report dated June 21, 1990 and discussed a number of issues that had arisen involving the interpretation of the May 22, 1990 Order. At the conclusion of the conference, the Court froze the population of the Intake Services Center (ISC) and the Pinel Annex at their then current level of 403 and 162, respectively, pending a view by the Court of these pre-trial facilities.
On June 28, 1990, the Court conducted a view of the ISC and the Pinel Annex and, in addition, toured the new Dorothea Dix facility for women scheduled to open on July 1, 1990 and the old Maximum Security facility, from whose ruins this suit sprang nearly a decade and a half ago.
In the ISC, the Court found that the double-celling of the conventionally constructed modules, while straining the physical capacity of facilities and the nerves of inmates and staff, was tolerable for the few months that remain before completion of the addition to the ISC, promised for November, 199Q. Even here, however, the pervasive idleness that leaves inmates scant choice between television and sleeping is deeply disturbing. There is little or no work. Posted schedules indicate that the limited outdoor recreational area is reserved for specific modules for only 6.5 hours a week, weather
- 2-

permitting, while each tiny yard must be shared with inmates from three other modules (with a combined population of c. 192) on the four evenings a week prisoners have access to it from 5:00 to 8:00 p.m. There are no vocational programs. Prisoners may receive three half-hour visits a week, two of which are provided in the middle of work-days. Educational programs are extremely limited, available for only a handful of prisoners and occupying a couple of hours a week. Everi^, prisoners were to avail themselves of every possible hour of recreation, weather and staff permitting, get all allowable visits and participate in educational programming, all of which few prisoners can do, less than IS percent of that prisoner's time would be occupied, leaving little else except television and sleep. No one suggests that prisoners have an inherent right to entertainment, but when 40 to 50 young men, generally between the ages of 18 and 30, with limited intellectual resources and often troubled by emotional problems or asocial behavior, complicated not infrequently by withdrawal from drugs or alcohol, are crowded into a small, densely populated space and are not provided adequate outlet for their mounting, repressed energies, the result inevitably is an unsafe and insecure situation. Nonetheless, the Court will permit full double-celling in those modules of the ISC with 24 cells except, of course, for those modules set aside for administrative and punitive segregation, which require single-celling.
- 3-

The two, new dormitories in the ISC, the so-called L and M modules,- which were recently converted from administrative office space, currently house 45 to 50 and 25 to 3Q prisoners, respectively. Here all of the infirmities recited in relation to idleness are exacerbated immeasurably by the lack of space. In these so-called dormitories, doublebunked beds occupy almost all of the floor space in each dorm; inmates must spend the bulk of their 20 hours a day of inactive confinement on their bunks. They eat, they sleep, they recreate on their beds. They must shower, wash and deficate in view of their fellows. There is not a shred of privacy, or quiet. In the conventional modules, prisoners can retire at night to their two-man cells, and they may elect to remain in their cells during the day when the dayroom is open, thus securing for themselves some small measure of relatively quiet solitude. Life in L or M modules, however, is the equivalent of life on a subway or a bus from which one may not exit. These modules contravene the proscription of this Court against the use of dormitories, violate the Court's prescriptions for space, and arguably violate the Constitution.
Given the present population pressures and the short-term nature of the overcrowding crisis, the Court is loath to ban entirely the use of these dormitories. Whi.le their continued utilization will be tolerated, more stringent limits on population are clearly necessary to mitigate their degrading impact.
- 4-

In the Pinel Annex, population reductions have substantially improved conditions and permitted the defendants to abandon use of those sunporches at the end of each wing for the housing of inmates that so offended the Court's expert witness, Mr. Nathan, in April and May. More needs to be done, however. When the Court conducted its view of the Pinel Annex, a count was underway, and all prisoners were confined to their rooms. This permitted the Court to glimpse what life is likeduring the ten to 12 hours detainees are locked in their rooms. Ten people were confined in these approximately 18' x 20' rooms, meaning that the defendants have cut court-ordered space requirements in half. On the pleasant summer day the Court's view was conducted, temperatures in these rooms were well up into the 80's, and ventilation was extremely poor. Locked doors closed off all cross-ventilation, and one can only guess the impact of the combination of these unsatisfactory conditions and body heat on inmates in these rooms in July and August.
The defendants responded to the Court expert's critique of the Pinel Annex sunporches by removing all prisoners from those areas. The bunks of removed prisoners remain behind and limit any recreational use of these sunporches, which constitute, probably, the best ventilated rooms in the whole facility. This Court has not banned the use of these sunporches as housing areas and, indeed, they would

"m* j

"•

seem to be ideal housing areas during the summer months, provided the number of occupants is limited. Accordingly, the population limits on rooms in the Pinel Annex set forth below also apply to the sunporches.
After consideration of the parties' arguments and positions and in the aftermath of the Court's own tour of the ISC and the Pinel Annex, the Court directs that the following be Ordered, Adjudged and Decreed:
1. The Court's Order of May 22, 1990 shall remain in full force and effect except that decretal paragraph number 4 thereof is modified to allow no more than 380 prisoners to be housed at the ISC, with no more than 30 prisoners to be housed in L module and no more than 2Q prisoners in M module; and no more than 134 prisoners to be housed at the Pinel Annex, with no more than six prisoners to be housed in any one room of the Pinel Annex.
2. Decretal paragraph number 3 of the May 22, 1990 Order shall be suspended when, and as long as, the number of prisoners housed at the ISC and the Pinel Annex remains below 380 and 134, respectively. Decretal paragraph number 3 of the May 22, 1990 Order, which provides for the expedited award of good time shall be operative, without further order of the Court, whenever the number of prisoners at the ISC exceeds 380 or the number of prisoners at the Pinel Annex exceeds 134.

Awards of good time shall be granted to prisoners in the ISC and the Pinel Annex to the extent necessary to reduce the number of prisoners to 380 and 134, respectively, when releases on bail under the Emergency Overcrowding Relief Fund (EORF) have not sufficed to meet the population caps set for these facilities. Awards of good time to each prisoner shall not exceed the number of days required to reduce the population of the ISC and the Pinel Annes to 38Q and 134, respectively. For example, if the population exceeds the cap on a specific day by ten prisoners, then sufficient good time shall be awarded to effect the release of the ten prisoners then closest to their date of release.
3. This case shall be continued thirty (30) days from the date of entry of this Order, at which time the parties shall meet with the Court in chambers to review the status of the defendants' compliance with the Order.
4. The second paragraph of decretal paragraph 14 of the May 22, 1990 Order shall be amended as follows:
a. Decretal paragraphs 1, 2 and 3 of the May 22, 1990 Order, as modified by this Order, shall not apply to prisoners charged with assault with intent to commit violent felonies (RIGL 11-5-1); assault with a dangerous weapon (11-5-2); first degree child abuse (11-9-5.3(a)); murder, all degrees (ll-23-l); kidnapping (11-26-1); first and second-degree sexual assault (11-37-2 and 11-37-4); first
- 7-

degree child molestation (11-37-8.1); armed robbery (11-39-1); carrying a dangerous weapon when committing a crime of violence (11-47-3); domestic violence (12-29-2); and any prisoner charged with a crime of violence while bailed either privately or under the EORF.
b. Prisoners convicted of driving under the influence of liquor or drugs (RIGL 31-27-2(c)(2)) shall not be eligible for-awards of expedited good time pursuant to decretal paragraphs 2 and 3 of the May 22, 1990 Order until they have served a minimum sentence of sixty (60) days. Prisoners convicted under this law and sentenced to less than sixty (60) days shall be ineligible for the award of expedited good time under this Court's orders.
c. Any sentenced prisoner released as a result of an award of expedited good time shall not be eligible for bail under the EORF, if subsequently arrested for a crime of violence.

ENTER:

PER ORDER£/-, sttTZ./'

;, v , /, '•'

1723D

- 8-

 
 UNITED STATES I.) [STRICT COURT FOR THE D[STRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., v .
EDWARD DiPRfiTE, et al. THOMAS R. ROSS, et al.,
v . EDWARD DiPR.YI'E, el n 1 .

C.A. No. 74-172 P C.A. No. 75-0032 P

ORDER

On July 3, 1990, the Court entered a modification and

extension of its original, remedial order of May 22, 1990. The

May 2 2 , 1990 Order, in numbered paragraph 1, directed the

defendants to create an Emergency Overcrowding Relief Fund

("EORF") "to provide bail for all indigent detainees with bail

set at Ten Thousand Dollars ($10,000.00) cash or less." That

Order is hereby modified, and the defendants are directed

hereafter to provide bail for nil indigent detainees with bail

set at, or less than, Ten Thousand Dollars ($10,000.00) surety

or One Thousand Dollars ($1,000.00) cash.

IIIII IIII I I III I I II III ™ ™ Palmigianov. Travisono

P

PC-RI-001-012

iJ

,.

/

ENTER:

/ • i -y/

LM l
Date: 1735D

E.O. Hate "i !•: h

 
 O&. O3. so O 3 : O 1 P M * A C L U of R H O D E I S L A N D Palmigiano v. Travisono

Df^ Dl rtrti AM A ""' Mill Hill Illl Illl
UNITED STATES DISTRICT COUKT DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., )

V.

) C A . NO. 74-172 P

EDWARD DiPRETE, et al.,

)

THOMAS R. ROSS, et al.,

) •

v.

) C.A. No. 75-0032 P

EDWARD DiPRETE, et al.,

)

MEMORANDUM AND ORDER On May 22, 1990, this Court entered a far-reaching remedial order designed to effect population reductions in the two facilities of the Rhode Island Adult Correctional Institutions (ACI) that house pre-trial detainees, the Intake Service Center (ISC) andthe Final Annex. Through the order's expansion of a preexisting Emergency Overcrowding Relief Fund (EORF) and award of expedited good tine for sentenced offenders in the ACI, the defendants were able to accomplish substantial population reductions from a total population of 776 in the two facilities on May 22, 1990 to 565on June 20, 1990. After a chambers conference with the parties onJune 21, 1990, and a personal view by theCourt of the ISCand the Annex on June 28, 1990, a supplemental remedial order was entered on July 3, 1990, which was further amended or clarified on July 6, 1990.The purpose of these additional orders was to achieve further modest population reductions, while, at thesame time, limiting thewide sweep of the original remedial measures. The restrictions on
1

C8, O3. 9O 0 3 : 0 1 P M * A C U U of R H O D E I S L A N D
remedial measures, however, led to a slight rise in population, rather than the desired decelerated contraction. Parties and counsel net again in chambers on July 20, 1990 to report crv the status of the population of the two facilities, evaluate current remedial measures and discuss future actions. No clear direction emerged from the conference, and the Court directed the Special Master to assess the various proposals identified and discussed during the conference and to raake recommendations to the Court for a new and more effective remedial order within ten days.
The problems involved in articulating a narrow yet effective remedy in this case are legion. While the ISC and the Annex house primarily pre-trial detainees, they also hold a substantial number of sentenced offenders, constituting anywhere from 25 to 40 percent of the population of the two facilities on any given day. The early release program was designed to open up beds in the ACI to which newly sentenced inmates from the ISC could be assigned. However, the impact of the program on the ISC and the Annex populations is indirect. The awards of good time prescribed in the May 22, 1990 Order are given to convicted offenders who are closest to the date of their release. These inmates traditionally reside in those facilities with the lowest level of classification, i.e., Minimum Security and Work Release. The newly sentenced offenders in the ISC, on the other hand, are more likely to be assigned to facilities with higher levels of security, such as Supermax, Maximum Security and Medium Security, where the early release program has considerably less impact. Thus, the early release

03.03.90 O3:O1FM
program represents a "trickle-down" approach to the population problem at the ISC and the Annex as other prisoners must first be moved from higher security to lower security to make room for the prisoners from the ISC and the Annex.
Another problem is the significant growth in the number of pre-trial detainees. Since the early 1930's, when the pre-trial population of the ACI included about 100 persons, the number of pre-trial detainees had increased five-fold by early May of this year. A significant barrier to controlling the size of the pretrial detainee population of the ISC and the Annex is the substantial number of criminal defendants who are held without bail. A 1988 change to the Rhode Island constitution and r.uch stricter drug-related penal statutes enacted over the past several years have combined to make virtually every individual in Rhode Island accused of the possession of drugs, as well as their manufacture and sale, ineligible for bail while awaiting trial. While recent Rhode Island case law may end the automatic withholding of bail in these cases, the effect of the State Supreme Court's recent ruling in this regard is, as yet, uncertain. See Witt v. Moran. 572 A.2d 261 (R.I. 1990). In addition, accused individuals with a probation violation are routinely held without bail irrespective of the seriousness of the present charge or past convictions. Regularly, some 75 percent of detainees at the ISC and the Annex are held without bail.
Lost in the furor over recent developments at the ISC and the Annex is the fact that the defendants have agreed (by entering

O*. O3. 9O O3.-O1PM * A C L U of R H O D E I S L A N D

P :^ =

consent decrees or by failing to appeal orders of this Court) that the maximum number of prisoners that can be housed legally cr constitutionally in the ISC is 250 and, in the Annex, 90. In April 1990, the number of prisoners in the ISC regularly exceeded 600, while figures in the Annex regularly exceeded 230. As recently as the hearings on May 10, 11, and 14, 1990, witnesses for the plaintiffs, the defendants andthe Court allagreed on theurgent need for immediate judicial action to reduce the population of the ISC and the Annex.
The temporary nature of the Court's intervention has also been overlooked in much of the reaction to the May 22, 1990Order. Unlike the situation in many other states, the measures enacted here will operate to limit prisoner populations for only the next 9 0 days, after which the defendants have pledged to provide sufficient physical facilities to house over a thousand more prisoners than they can currently accommodate. That represents a growth of 40 percent over the present population of the ACI.
The following remedial provisions (which incorporate many of the provisions of previous orders) supersede all previous orders of this Court entered since May 22, 1990 to control the size of the population of the ISC and the Annex, including the May 22, 1990 Order, the July 3, 1990 Order, the July 6, 1990 Order and all other oral orders of the Court. It is hereby
1. ORDERED that the defendants shall maintain at all times at least two hundred thousand dollars ($200,000) or its equivalent, acceptable to the state judiciary, in the Emergency Overcrowding

O 3 . O 3 . 3 C O 3 I O 1 P M ^ A C L U ot R H O D E I S L A N D
Relief Fund, which shall provide bail for all indigent detair.ees with bail set at one hundred thousand dollars ($10 0,000) surety or ten thousand dollars ($10,000) cash or less. It is further
2. ORDERED that no wore than 395 prisoners nay be housed in the ISC, with no more than 3 0 prisoners to be housed in L nodule and no more than 2 0 prisoners in. M module. No more than 150 prisoners may be housed in the Pinel Annex, with no more than six prisoners residing in any one room of the Pinel Annex. It is further
3. ORDERED that the Special Master shall study the feasibility of ordering the release of pre-trial detainees held without bail when the pretrial detainee population at the ISC and the Annex exceeds 395. The results of this study shall be reported to the Court within 30 days. If such releases are feasible, the Special Master shall be empowered to place any suitable pre-trial detainee on the electronically monitored home confinement program of the state of Rhode Island. Any releases made pursuant to this paragraph shall be made in the order of those least likely to create a danger to the community. It is further
4. ORDERED that defendants shall not accept, until November 15, 1990 (the anticipated date of the opening of the new ISC), for incarceration those convicted offenders who are free on personal recognizance or on bail in the community prior to both their conviction or plea and the imposition of sentence, provided, however, that new bail in the same amount and form as previously set by the state court is obtained. Any delay in the beginning of

O S . O 3. 9 O O 3 : O 1 PI-I A C L U of R H O D B I S L A N D
the service of sentence shall have no impact on the length, cr any other term, of the sentence to be served. If the delays in the execution of sentences, described herein, do not keep the sentenced population at the ISC and the Annex (i.e., those sentenced prisoners involved in the admissions and orientation (A&O) process) at or below 150, all sentenced .prisoners in the A C I shall immediately be awarded 30days ofexpedited good time, which shall be applied against the sentence of each affected prisoner. This award of good time shall, contrary tothe terms ofR.I.G.L. 42-5624, bedeemed to advance each affected prisoner's eligibilityfor consideration for parole. It is further
5. ORDERED that all persons committed by family court to the ACI for contempt shall not commence their sentences to purge themselves of contempt until November 15, 1990. It is further
6. ORDERED that the defendants shall take all steps, in addition to those specified above, to accomplish the maximum capacities established in this Order, such as, among others, a review of classification criteria so that the movement of prisoners from higher to lower levels of classification within the ACI may be expedited. It is further
7. ORDERED that the release provisions of this order (paragraphs 1, 3, 4 and 6, above) shall not apply to pre-trial detainees charged with or sentenced offenders convicted of and serving time for assault with intent to commit felonies (R.I.G.L. 11-5-1); assault with a dangerous weapon (R.I.G.L. 11-5-2)? first degree child abuse (R.I.G.L. ll-9-503(a)); murder, all degrees

O8, O3. 3O O 3 . - O 1 P M M C L U , f R H O D E I S L A N D
(R.I.G.L. 11-23-1); manslaughter (R.I.G.L. 11-23-3); kidnapping (R.I.G.L. 11-26-1); first and second degree sexual assault (R.I.G.L. 11-37-2 and 11-37-4); first degree child molestation (R.I.G.L. 11-37-3.1); robbery (R.I.G.L. 11-39-1); carrying a dangerous weapon when committing a crime ofviolence (R.I.G.L. 1147-3); domestic violence (R.I.G.L. 12-29-2); and any prisoner charged with a crime of -violence while bailed either privately or under the EORF and recommitted to the ACI. Prisoners convicted of driving under the influence of liquor or drugs (R.I.G.L. 31-272(c)(2)) shall not be eligible for awards of good time pursuant to paragraph 4 ofthis order until they have served a minimum of sixty (60) days. Prisoners convicted under this law and sentenced to less than sixty (60) days shall be ineligible for the award of expedited good time under this court's orders. Any sentenced prisoner released as a result of an award of expedited good time shall not be eligible for bail under the EORP if subsequently arrested and recommitted to the ACI for a crime of violence. It is further
8. ORDERED that modules and dormitories in the ISC and the Annex shall be restricted by class of prisoner (sentenced orpretrial) and, to the greatest extent feasible, by classification. Sentenced prisoners shall be classified within 3 0 days of their sentencing and removed from the ISC or the Annex as soon as possible after the completion of the classification process. It is further
9. ORDERED that the defendants shall cause intake medical
screening of each prisoner assigned to the ISC or the Annex tobe

OS. O3, 9O O 3 . - O 1 P M * A C U U of R H O D E I S L A N D

?• C 3

completed within seven days of the prisoner's incarceration. It is further
10. ORDERED that the defendants shall cause the results of tuberculin skin tests to be examined and evaluated by appropriate medical personnel no earlier than 48 and no later than 72 hours following administration of the test, it is further
11. ORDERED that the defendants shall deploy security staff members whose primary duties shall be the monitoring and detection of fires and fire hazards, including but not limited to the presence of excessive quantities of flammable materials, obstructions to fire exists, and inoperative fire alarm and fire suppression equipment. Each such staff member shall be responsible for no more than two housing units in the ISC or one wing in the Pinel Annex. Defendants also shall notify rhe local fire marshal that the maximum occupancy capacities of the ISC and the Pinel Annex are being exceeded. It is further
12. ORDERED that all fire detection and suppression equipment in the ISC and the Annex shall be maintained in proper working order and shall be inspected regularly and frequently by qualified institutional personnel and representatives of the State Fire Marshal's office. It is further
13. ORDERED that the beds located in the dayrooms and dormitories shall be separated by unobstructed corridors at least 3 6 inches in width. No such corridor shall terminate at either end at a solid wall. Additionally, to assist in the prevention of transmission of disease, beds in dayrooms and dormitories shall be
8

OS. O3.

rearranged to ensure that prisoners sleep head-to-foot. It is further
14. ORDERED that the defendants shall balance and repair the ventilation system at the ISC to ensure that the system operates properly and effectively. It is further
15. ORDERED that the defendants.shall take all steps necessary to ensure that proper sanitary conditions are maintained in the kitchen of the ISC and the food service areas of the Pinel Annex and that all necessary precautions are taken to ensure that food is prepared and served in a manner that does not endanger the health of prisoners.
Enter:

By Order:

f 0

oil/, LJ^ULJal
Senior Judge

i 1A

August 3, 1990

Deputy Cleric

 
 o f t ; 28. 9O O3 : 2 9 P M * A C L U of R H O D I I S L A N D

y, % -. '

Palmigiano v. Travisono

r> O 2

PC-RI-001-015
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS PALMIGIANO et al
V.
EDWARD DiPRETE et al THOMAS ROSS et al
v. EDWARD DiPRETE et al

CA No. 74-0172P CA NO. 75-0032P

AMENDED ORDER
On August 22, 1990 this Court entered an Order reading:
Ordered, that defendants shall not accept all persons committed by Family Court to the ACI to purge themselves of contempt until November 15, 1990.
The defendants now report to me that all such contemnors may
be housed feasibly and safely in minimum security facilities rather
than in theIntake service Center (ISC) albeit initial processing
of not rare than twenty four hours will occur in the ISC. Since
that way of handling contemnors will not add to the present
overcrowded conditions in the ISC, this Court has no difficulty in
accepting the procedure for handling said contemnors as suggested
by the defendants. Accordingly, this Court amends the foregoing
order as follows:
Ordered, that defendants may conduct intake processing in the ISC of all persons committed by Family Court to the ACI to purge themselves of contempt provided that such processing will
be concluded within twenty four hours of -intake and all such prisoners, following said processing, shall be housed in minimum security facilities.

r*23. 9O O3:2 9PM fACLU

of RHODE
t

It
ISLAND

SO ORDERED:

ENTER:
•1 U;.o>.^--^.NN!!s l
Raymond J. Servtor Judge August 28,1990

eputy

 
 0030c 0029c

Palmigiano v. Travisono PC-RI-001-016

UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al v.
BRUCE G. SUNDLUN, et al.

C.A. No. 74-0172

THOMAS R. ROSS, et al.

C.A. No. 75-0032

BRUCE G. SUNDLUN, et al.
SETTLEMENT AGREEMENT
I. INTRODUCTION This case has had a long, and complicated history . After an extended trial in 1977, this Court declared that the entire Rhode Island prison system was unconstitutional and entered an extensive remedial order . During the next fifteen years, there were

See, e.q. , the series of decisions variously reported as Palmiaiano v. Garrahy or Palmiqiano v. DiPrete. 443 F.Supp. 956 (D.R.I. 1977); 448 F.Supp. 659; 466 F.Supp. 732, a f f d , 616 F.2d 598 cert, den.. 449 U.S. 839; 599 F.2d 17; 639 F.Supp. 244; 700 F.Supp. 1180 (1988); 710 F.Supp. 875 (1989); aff'd. 887 F.2d 258 (1st Cir. 1989); 737 F.Supp. 1257 (D.R.I. 1990).
2 Palmiqiano v. Garrahy. 443 F.Supp. 956, 986 (D.R.I. 1977).

modifying orders, adjudications of contempt against the defendants (various state officials) and the imposition of sanctions. Most of the problems during those years were related or attributable to overcrowding in the Rhode Island prison system. In every instance, the Court found that the overcrowding had a serious deleterious impact on medical care and environmental health and safety and on numerous occasions, experts supported those findings .
On January 10, 1991, Senior United States District Judge, Raymond J. Pettine, who had presided over this case from its inception, conducted a chambers conference with all the parties on the occasion of his transferring the case to United States District Judge Ronald R. Lagueux. At that time, Judge Pettine urged a comprehensive approach to the problems of prison overcrowding and, in a final order, stated: "Now is the time to institute safeguards that will forestall and hopefully prevent a recurrence of the past frustrating, costly and devastating ills."
The parties have had a series of meetings during the past two years and the current defendants, Governor Bruce G. Sundlun and Department of Corrections Director George A. Vose, Jr., have begun a comprehensive approach to the solution of overcrowding problems in Rhode Island's prison system. Among other things, on December 3,
4 1992, Governor Sundlun signed an Executive Order creating a
See« e.qf. Palmiqjanovf Garrafty. 639 F.Supp. 244 (D.R.I. 1986). 4 No. 92-26.

Governor's Commission to Avoid Future Prison Overcrowding and Terminate Federal Court Supervision Over the ACI . This Commission was charged with developing a detailed action plan including legislative and policy initiatives for dealing with the state's prison population. The Commission was also directed to consider the creation of a permanent mechanism to maintain the ACI prison population within its capacity on an ongoing basis.
On February 15, 1993, the Commission issued a detailed report together with recommended changes in the Rhode Island criminal justice system and recommended legislation. The Rhode Island General Assembly, thereafter, enacted legislation providing for intermediate sanctions, and a Criminal Justice Oversight Committee.
5 The "ACI," or Adult Correctional Institutions, is the common term for the entire Rhode Island prison system. 6 Title 12, Chap. 19, Sec. 23.1 et seq. of the General Laws of the State of Rhode Island provides for a wide range of intermediate punishments.
The second bill adopted by the legislature, Title 42, Chap. 26, Sec. 13 et seq.. creates a criminal justice oversight committee responsible for coordinating policies of the components of the criminal justice system to control overcrowding in times of crisis. The committee would set annual goals, monitor developments quarterly, especially those related to potential overcrowding, and urge the adoption of appropriate and statutorily authorized steps to reduce overcrowding in a time of crisis.

The parties believe that these recent initiatives by the defendants and other state officials are consistent with important principles of federalism, create the potential for establishing the ACI as a constitutional prison system, and may result in completely restoring authority over a constitutional state prison system where it belongs, in the hands of responsible state officials.
The defendants have recently discontinued the use of the Special Needs Facility (also known as Old Medium Security) as a secure facility, and may plan to convert that facility into a reintegration facility, a facility designed to house a variety of prisoners and programs within the defendants' framework of intermediate sanctions.
Because the parties are interested in resolving plaintiffs' concerns about areas of possible non-compliance, in addressing proposals that defendants might have for modification of existing orders, and in addressing the ultimate termination of compliance monitoring and the Court's active supervision of the remedial orders in this cause, the parties hereby enter into this Settlement Agreement on this 18th day of March, 1994.
II. DEFINITIONS
A. "Adequate Programming" shall mean the level of programming being provided at the time of the notification of substantial compliance by the Monitors as provided for hereafter.

B. "Decrees" shall mean the Order of the Court entered on August 10, 1977, Palmiaiano v. Garrahy. 443 F.Supp. 956 (D.R.I. 1977) and all subsequent Orders in this case governing conditions or practices at the ACI.
C. "Defendants" shall mean the Governor of the State of Rhode Island and the Director of the Department of Corrections.
D. "Defendants' Counsel" shall mean the Attorney General for the State of Rhode Island or his designee, the Executive Counsel to the Governor of the State of Rhode Island or her designee, and Chief Legal Counsel to the Department of Corrections or his designee.
E. "Double-celling" shall mean the placement of two (2) prisoners in a cell.
F. "Existing Facilities" or "Facilities" shall mean the following facilities housing members of the plaintiff class which are in existence on the effective date of this Settlement Agreement. They are as follows:
Medium Security Facility (MED) Special Needs Facility (SNF) Women's Jonathan Arnold (Women's) Intake Service Center South (ISC SO) Intake Service Center North (ISC NO) High Security Center (HSC) Maximum Security Facility (MAX) It is understood that some members of the plaintiff class are housed in ACI facilities not listed above. Those facilities are the Minimum Security Facility, the Work Release Facility (Bernadette Building) and the Women's Work Release Facility (Dix Building). Although those latter facilities are included in the various remedial orders of the Court, they have not been the subject of population overcrowding concern.

G. "Newly Constructed Facility" shall mean any facility housing members of the plaintiffs' class that is completed after the effective date of this Settlement Agreement and shall include additions to an existing facility.
H. "Plaintiffs" shall mean prisoners housed at the Adult Correctional Institutions.
I. "Plaintiffs' Counsel" shall mean Alvin Bronstein, Mark Lopez and other lawyers employed by the National Prison Project of the American Civil Liberties Union Foundation, 1875 Connecticut Avenuue, NW, Ste. 410, Washington, D.C. 20009.
J. "Substantial Compliance" shall mean that the defendants have generally fulfilled the remedial provisions of the August 10, 1977 Order, as amended, and all subsequent orders of this Court, governing the delivery of medical, dental and mental health services; environmental health and safety conditions and practices; and, management, security and inmate activity issues. In the event that achieving substantial compliance requires the defendants to make any capital improvements, alterations, or renovations, they may achieve substantial compliance in the following manner. The defendants shall prepare and submit to plaintiffs' counsel a written document which sets forth in detail a plan for the improvement, alteration, or renovation, the amount of funds required, the source of those funds, and a specific timetable for completing the work. If counsel for plaintiffs approve of the foregoing plans in writing, the defendants shall be entitled to a finding of substantial

compliance from the date of such written approval rather than the actual completion of the capital improvement, alteration, or renovation. Plaintiffs' Counsel shall not unreasonably withhold approval.
III. RESTRICTIONS ON OVERCROWDING
A. Areas not designed and built for housing prisoners shall not be utilized for the housing of prisoners. For example, prisoners shall not be housed in corridors, hallways, dayrooms, program space, office space, recreation space or general purpose space.
B. Except as provided in Paragraph C of this Section III, defendants agree that they will not assign more than one person to a cell in existing facilities. Defendants may assign two prisoners to a cell in newly constructed facilities provided that the prisoners are not classified as maximum security; that such cells shall adhere to the space requirements as set forth in the American Correctional Association Standards in effect at the time of execution of this Agreement ; and such cells allow prisoners direct access to toilet and hand washing facilities without assistance from a staff member.
7 The reference in text is to the American Correctional Association Standard 3-4128 (1991) and 3-4128-1 (1994), copies are attached to the Agreement as Appendix A.
-7-

C. 1. Defendants shall be permitted to double-cell some prisoners in HSC, Medium, ISC NO and ISC SO, as detailed in Paragraph D of this Section III, provided that the specific conditions set forth in Paragraph D are met. Units designated as protective custody units in those four facilities may be double-celled.
2. Defendants shall ensure that sound classification practice and principle are followed before deciding to double-cell any particular prisoner.
D. The designated maximum population capacities for the following respective housing areas shall not be exceeded, except in the event of an emergency as set forth in Paragraph G.

1. Facility: Medium Capacity: 288 Cells Double Bunked 288 Cells Single Bunked 24 Segregation Cells Single Bunked 4 Medical Cells 6 Medical Ward
TOTAL:

576 288
24 4
_6_
898

The double-celling in this facility is conditioned upon the

installation of Two Hundred and Eighty-Eight (288) beds to create

cells adaptable to double-celling. Such cells shall be divided

proportionally among the six (6) regular housing units and

double-celling is contingent upon each prisoner being adequately

programmed and being allowed ten (10) hours out of cell time daily.

-8-

2. Facility: SNF (Only if used as a secure facility)

Capacity: A, B, C Dorms with 54 Inmates Each 162

D Dorm

3 2

A Honor Dorm

20

Cell Block CBS

20

Cell Block DCB

_J&

TOTAL:

2 50

The population capacities above are conditioned upon the

defendants completing renovations to the following: D Dorm toilets;

additional showers in Dorms A, B and C; toilets and showers in A

Honor Dorm, all as called for in Special Needs Facility

Recommendations (Powitz Report of 3/12/92) . If F Dorm is

constructed, capacity can be increased to Three Hundred and Four

(304) (Fifty-four (54) inmates in F Dorm); if adequate toilet

facilities and ventilation are installed in E Dorm, capacity can be

further increased to Three Hundred and Twenty-Four (324) (Twenty

(20) inmates in E Dorm).

3. Facility: Women's

Capacity: Beds

106

Segregation Cells

4_

TOTAL:

110

If exhaust fans are installed and toilet areas are repaired as

called for in Women's Division Recommendations #2 and #3 (Powitz

Report of 3/12/92) the capacity may be increased to One Hundred and

Twenty-Five (125).

8 All references to Powitz Report are to a report and recommendations made by Robert Powitz, the defendants' environmental health expert. The report dated March 12, 1992, is attached hereto as Appendix B.

-9-

4. Facility: ISC South

Capacity: 72 Cells Double Bunked

144

72 Cells Single Bunked

72

24 Segregation Cells

Single Bunked

24

8 Medical Cells

8

10 Bed Medical Ward

10.

TOTAL:

2 58

The population capacities above are contingent upon the

following:

a) limiting the use of this facility to confine pretrial

detainees and convicted prisoners but only for a maximum of

One Hundred and Twenty (120) days after sentencing (except

for protective-custody prisoners permanently assigned to

ISC). Pretrial detainees shall be separated from convicted

prisoners;

b) double-celling only up to Fifty percent (50%) of the

cells in each module;

c) each prisoner except those identified in Section III

D(4)(d) (as stated below), shall be allowed Six and a

Quarter (6.25) hours out of cell time daily;

d) each protective custody prisoner who is sentenced and

classified shall be allowed ten (10) hours out of cell time

daily;

e) implementation of upgrade corrections to ventilation system as called for in ISC South Recommendations #1 and #4 (Powitz Report of 3/12/92). If these contingencies are not complied with, all cells must be single occupancy for a total capacity of One Hundred and Sixty-Eight (168) (exclusive of medical beds).

5. Facility: ISC North

Capacity: 392 Cells Double Bunked

784

TOTAL:

784

The population capacities above are contingent upon the

following:

a) limiting the use of this facility to confine pretrial

detainees, and convicted prisoners but only for maximum of

One Hundred and Twenty (120) days after sentencing (except

for protective-custody prisoners permanently assigned to

ISC). Pretrial detainees shall be separated from convicted

prisoners;

b) each prisoner, except those identified in Section III,

D(5)(c) (as stated below), shall be allowed Six and a

Quarter (6.25) hours out of cell time daily;

c) each protective custody prisoner who is sentenced and

classified shall be allowed ten (10) hours out of cell time

daily.

6. Facility: Capacity:
TOTAL:

HSC

48 Cells Double Bunked 96

24 Cells Single Bunked 24

24 Segregation Cells

Single Bunked

24

4 Psychiatric Cells 4

8 Bed Hospital Ward _&

156

The double-celling in this facility is limited to protective

custody prisoners and conditioned upon the installation of

forty-eight (48) beds to create cells adaptable to double-celling.

Each prisoner being double-celled shall be adequately programmed and

allowed ten (10) hours out of cell time daily. Under no

circumstances shall maximum custody prisoners be double-celled at

this facility, except those housed in the protective custody unit.

7. Facility: Capacity:
TOTAL:

Maximum

Cells Single Bunked

411

Segregation Cells Single Bunked 39

Bed Medical Ward

16

4 66

If the ten (10) rear cells are renovated to contain sufficient
q
natural light and ventilation to meet APHA Standards in effect at

the time of execution of this Agreement, capacity can be increased

to Four Hundred and Seventy Six (476) inmates.

E. Dormitories used for the housing of prisoners shall provide

each occupant with at least twenty-five (25) square feet of

unencumbered floor space. This space requirement shall not include

space encumbered by a bed or locker nor shall it include any

available program space or dayroom space. These limitations shall

" Standards of the American Public Health Association.

not apply to newly constructed minimum security and work release facilities and newly constructed minimum security and work release facilities would be subject to the American Correctional Association Standards in effect at the time of execution of this Agreement. A copy of those standards are set forth in Appendix A.
F. In entering into this Settlement Agreement, the parties acknowledge that the safety and security of prisoners and staff are a matter of mutual concern. The parties further acknowledge that certain conditions and eventualities are within the contemplation of the parties. These include the possibility that the Rhode Island jail and prison system may experience a substantial increase or decrease in its population; that the rate of crime or conviction within the State of Rhode Island may continue at its current rate or increase or decrease substantially; that the incidence of parole may increase or decrease substantially; that the cost of construction of new facilities or renovation of existing facilities may increase or decrease substantially; that substantial difficulty may or may not be encountered by the Rhode Island Department of Corrections in attracting and employing security and non-security staff; and that substantial construction delays may or may not occur with respect to the renovation of existing units or the construction of new facilities, units or additions thereto. A condition or eventuality within the contemplation of the parties does not constitute a changed circumstance.

G. Paragraphs A through E inclusive of Section III shall be

enforceable in any federal or state court of competent

jurisdiction. The defendants shall comply with the population

capacities set forth in Section III of this Settlement Agreement

except in the following circumstances:

1. Any provision establishing population capacity or

limits may be suspended, even in the absence of an emergency, if the

suspension is temporarily necessary because of actions by members of

the plaintiff class or if suspensions are sporadic or isolated in

nature, provided that the suspension lasts no longer than five (5)

consecutive days. Any such suspension, including the reason

therefore, shall be reported to Plaintiffs' Counsel as promptly as

is reasonably possible following the commencement of the suspension.

2.

a) In the event of an emergency that makes

substantial compliance with any of the terms of

this Settlement Agreement impossible,

extraordinarily difficult or unfeasible, it may be

necessary to suspend temporarily, even beyond five

(5) consecutive days, any provision that

establishes population limits of this Settlement

Agreement. In such event, the Director of the

Rhode Island Department of Corrections shall

formally declare a state of emergency, and, as soon

as practical but no later than five (5) days after

such declaration, notify Plaintiffs' Counsel of the reasons that justified the suspension of any provision that establishes population limits of this Settlement Agreement. The defendants shall also notify Plaintiffs' Counsel of the expected duration of the suspension and the plan of the defendants to restore full operation of the Settlement Agreement. b) For purposes of this Settlement Agreement, an emergency is defined as a circumstance caused by a riot, fire, hurricane or similar event not caused intentionally by the defendants, their agents, or employees, that makes substantial compliance with the provisions that establish population limits of this Settlement Agreement temporarily impossible, extraordinarily difficult or unfeasible. Construction delays or labor disputes not caused intentionally or reasonably anticipated by the defendants may constitute an emergency, but legislative, executive, or administrative policy decisions not to appropriate funds or allocate resources to the housing of prisoners shall not justify the declaration of an emergency. In addition, legislative or judicial decisions regarding sentencing shall not justify the declaration of an emergency.
_ i <=,-

c) In the event that the defendants seek to continue emergency suspension of any provision that establishes population limits of this Settlement Agreement for a period of time greater than ninety (90) days without the agreement of plaintiffs' counsel, the defendants may seek the Court's permission to suspend any provision that establishes population limits of this Settlement Agreement. In any such motion, the defendants bear the burden of persuasion. 3. If the plaintiffs' counsel believe that any suspension of any provision of this Settlement Agreement that establishes population limits or the duration of the suspension is unjustified, unreasonable, or taken in bad faith, they may request appropriate relief from the Court. In such event, the plaintiffs bear the burden of persuasion.
IV. MEDICAL, MENTAL HEALTH AND DENTAL CARE
The defendants shall at all times maintain an adequate and constitutional system of medical, dental and mental health care. They shall employ sufficient staff to maintain a primary care system with a focus on preventive health care, health maintenance and prospective management of chronic disease.

V. ENVIRONMENTAL HEALTH AND SAFETY
The defendants shall at all times maintain environmental health and safety practices and conditions that are adequate and constitutional.
V I . MANAGEMENT, SECURITY AND INMATE ACTIVITY
The defendants shall at all times engage in practices and maintain conditions regarding management, security and inmate activity that are adequate and constitutional.
VII. INDEPENDENT MONITORS '
A. The parties hereby designate Dr. Lambert King and Robert Powitz as independent monitors (Monitors) to observe and report upon substantial compliance with the terms of this Settlement Agreement. These Monitors are experts in the areas of medical care, environmental health, and fire safety. The Monitors shall observe and assess substantial compliance with the terms of this Settlement Agreement, report to the parties about such substantial compliance, and give advice and recommendations to the parties.
B. In carrying out their duties, consistent with legitimate requirements of security, the Monitors shall have the following:

1. unobstructed access to staff, inmates or other knowledgeable persons for interviews or written communication regarding conditions at the facilities covered by this Settlement Agreement. Such interviews or other communication may be held in private, and may be held in confidence by the Monitors. At their discretion, the Monitors may divulge the content or nature of such interviews or communications to the Director of the Department of Corrections and to Plaintiffs' Counsel and Defendants' Counsel;
2. complete and unobstructed access to relevant files, records, reports, memoranda or other documents within the defendants' possession or custody for purposes of measuring substantial compliance with the terms of this Settlement Agreement;
3. unobstructed access to tour and inspect the institutions.
C. The Monitors shall not be subject to dismissal except upon agreement of all parties or by the Court upon motion of one of the parties and upon a showing of good cause.
D. The reasonable costs of the Monitors shall be borne by the Department of Corrections.
E. In the event that either Dr. Lambert King and/or Robert Powitz resign, become incapacitated, or for any other reason cannot perform their duties, the parties will mutually select a substitute Monitor or Monitors.

VIII. MONITORING AND COMPLIANCE
A. In no event shall a determination of substantial compliance be made if exceptions to substantial compliance are the result of willful or intentional actions by defendants.
B. 1. Commencing on or about March 18, 1994, the Monitors shall conduct periodic inspections and prepare reports detailing the state of defendants' substantial compliance with the provisions of this Settlement Agreement. The Monitors shall complete their initial inspections and prepare their initial reports within three (3) months of their appointment. In the event that the three (3) month period is unfeasible due to scheduling problems, the time period for the Monitors to submit their reports may be extended by the agreement of the parties, but in no condition shall it be extended beyond six (6) months.
2. The periodic inspections of the Monitors shall continue until they notify defendants' counsel and plaintiffs' counsel that the defendants are in substantial compliance as defined in this Settlement Agreement.
C. Plaintiffs' Counsel will review the state of substantial compliance under Section VI, Management, Security and Inmate Activity within three (3) months of signing this Settlement Agreement, and resolve any compliance issues in these areas directly with the defendants.

D. Incidents of non-compliance do not necessarily prevent a finding of substantial compliance. The determination of substantial compliance shall take into account the extent to which exceptions to substantial compliance are sporadic or isolated in nature, are unintentional, are the temporary result of actions by the members of the plaintiff class and are promptly and properly addressed by corrective action.
E. This Settlement Agreement shall be submitted to the Court for its review and approval pursuant to Rule 23 of the Federal Rules of Civil Procedure. The parties shall recommend to the Court a method of complying with the notice provisions of Rule 23(d) and (e).
F. 1. The parties shall have the opportunity to challenge the determinations of the Monitors, pursuant to Section VIII, Paragraph B of this Settlement Agreement, and plaintiffs' counsel, pursuant to Section VIII, Paragraph C of .this Settlement Agreement. The Court shall establish a procedure, if necessary, by which any hearing on that issue shall be conducted.
2. Upon review of the evidence, the Court will make a determination whether the defendants are in substantial compliance.
G. Upon receipt of the Monitors' reports of substantial compliance, the defendants shall file with the Court a motion to dismiss this lawsuit and dissolve any outstanding Decrees in Palmiaiano v. Sundlun. except the provisions of Section III of this Settlement Agreement (Overcrowding Restrictions).

H. 1. For the first four (4) months following the Court's approval of a determination of substantial compliance, as set forth above, the defendants shall forward to plaintiffs' counsel monthlyreports and supporting documentation detailing the status of defendants* compliance with Sections III, IV, V, and VI of the Settlement Agreement. The Director of the Department of Corrections shall serve on plaintiffs' counsel a certificate attesting that the contents of the reports are true and correct, and that the documents submitted in support of them are true and accurate copies of defendants' documents maintained in the ordinary course of operations of the Department.
2. The first such report shall be served on plaintiffs' counsel one (1) month from the date of the Court's approval of the substantial compliance determination.
3. The obligation to file monthly reports under this section of the Settlement Agreement shall conclude four months after the date on which the Court approves a determination of substantial compliance.
4. Plaintiffs' Counsel shall be afforded sufficient access to the institutions and to the plaintiffs to determine the accuracy of the representations contained in the reports served by defendants.
I. At the end of the four (4) month period set forth in Section VIII, Paragraph H and provided that the defendants demonstrate continuing substantial compliance, the parties, without

further recourse to judicial proceeding, including appellate review, shall execute and file a stipulation dismissing this lawsuit and dissolving any outstanding Decrees in Palmiqiano v. Sundlun. except the provisions of Section III of this Settlement Agreement (Overcrowding Restrictions). The provisions of Section III of this Agreement shall survive the aforesaid dismissal and continue to be enforceable in accordance with the provisions of Section III, Paragraph G.
J. Nothing stated herein shall prevent plaintiffs from moving the Court for additional relief or further relief based upon a claim of non-compliance, including a failure to file appropriate monthly compliance reports and supporting documentation.
IX. PERMANENT STATE PRISON OVERCROWDING CONTROL MECHANISM
A. One of the stated purposes of Executive Order No. 92-26 creating the Governor's Commission to Avoid Future Prison Overcrowding was to terminate federal court supervision over the ACI by having the Commission consider "the creation of a permanent body the purpose of which shall be to maintain the prison population within capacity on an ongoing basis."
B. The State of Rhode Island has created a permanent agency, body, commission or other mechanism (hereafter "State Mechanism") with the authority and power to control prison overcrowding. Accordingly, the parties agree that this case, specifically the

provisions of Section III (Overcrowding Restrictions), shall be retired and placed on inactive status in this Court provided that the following conditions are met:
1. The State Mechanism shall adopt the specific .population capacities and restrictions set forth in Section III of this agreement as its own capacities and restrictions.
2. The State Mechanism shall have the authority and power under state law to enforce the aforesaid population capacities and restrictions effectively.
C. 1. The Department of Corrections shall provide to plaintiffs' counsel a quarterly report, in the format of the current "ACI Daily Population Report" form, detailing the actual population of each unit of each facility in the ACI on the last day of the quarter for a period of five (5) years after the Court enters the dismissal order, referred to in Section VIII, I, above.
2. Each report shall include a signed certification by the Director of the Department of Corrections attesting to the fact that the aforesaid population capacities and restrictions are being adhered to.
1 0 This 5-year limitation shall only apply to the defendants' obligation to provide quarterly population reports. It does not apply to the defendants' obligation to maintain the population capacities and restrictions referred to in Section III of the Settlement Agreement.
-23-

3. Plaintiffs waive any attorneys' fees and costs incurred by

them for reviewing these quarterly reports, pursuant to Section IX,

Paragraph C of this Settlement Agreement. No other fees or costs

are waived in this agreement.

D.

in the event that the population of any facility in the

ACI exceeds the capacity limits of Section III for five (5)

consecutive days in a non-emergency situation (Section III,

Paragraph G ) , the Director shall notify plaintiffs' counsel of that

fact in writing.

E. If the requirements and conditions set forth above in

Section IX, Paragraphs A and B are being fully observed and the

State Mechanism exercises its authority and power to enforce the

population capacities and restrictions effectively, the provisions

of Section III of this Settlement Agreement shall not be enforceable

in this Court and plaintiffs agree not to bring any action or

proceeding to enforce said provisions.

F. In the event that the State Mechanism is disbanded or

discontinued, or loses its authority and power to enforce the

aforesaid population capacities and restrictions effectively, or

fails to exercise its authority and power to enforce the population

capacities and restrictions effectively, the provisions of Paragraph

E of this Section shall be null and void and plaintiffs shall have

the right to seek enforcement of the provisions of Section III.

-24-

X. MISCELLANEOUS PROVISIONS

A. In entering into this Settlement Agreement, the defendants

do not admit or concede that any rights of the plaintiffs under the

Constitution or under the Decrees, are currently being violated at

the ACI. Similarly, the plaintiffs do not make any concessions, nov

or in the future, with respect to inmate housing at the ACI except

those expressly provided for in this Settlement Agreement. In

addition, the plaintiffs and defendants are not waiving or

relinquishing any rights that they may have under the Decrees unless

expressly set forth in this Settlement Agreement.

B. The plaintiffs shall not seek additional relief in

connection with this lawsuit except as expressly provided in this

Settlement Agreement. This paragraph shall not preclude the

plaintiffs from seeking to recover reasonable and necessary

attorneys' fees, expenses, and costs incurred with negotiation or

future enforcement of the Settlement Agreement.

C. This Settlement Agreement shall not be admissible in

evidence in any proceeding or trial other than for the sole and

limited purpose of enforcement of this Settlement Agreement. Rules

407 and 408 of the Federal Rules of Evidence are applicable to this

Settlement Agreement.

D. The defendants shall notify all staff at the ACI facilities

of the terms of the Settlement Agreement.

E.

1. If this Settlement Agreement is approved in its

-25-

entirety by the Court, then this Settlement Agreement and the

Decrees of the Court constitute the entire agreement of the

plaintiffs and defendants.

2. If this Settlement Agreement is not approved in its

entirety by the Court, then this Settlement Agreement shall be null

and void.

F. This Settlement Agreement is a document which all parties

have negotiated and drafted. Since all parties participated equally

in drafting its terms, the general rule of construction interpreting

a document against the drafter shall not be applied in future

interpretation of this Settlement Agreement.

G.

The Settlement Agreement shall be effective on the date

of its execution.

On Behalf of Plaintiffs

On

Alviry J. Bronstein, Esq. Mark Lopez, Esq. National Prison Project of the American Civil Liberties Union Fdn. 1875 Connecticut Ave, NW, Ste. 410 Washington, D.C. 20009 (202) 234-4830
Date: March 18,1994

B/ruce Of. Sundlun (Soyerndir,State of Rhode Island state louse
Rhode Lsirand^2903
George A. Vose, Jr. Director of the Department of Corrections State of Rhode Island 40 Howard Avenue Cranston, Rhode Island 02920 (401) 464-2611
Date: March 18, 1994

-26-

Respectfully submited, Attorneys for Plaintiffs

prneys for Defendants

Alvin J/ Bronstein, Esq.
Mark Lopez, Esq. National Prison Project of the American Civil Liberties Union Fdn. 1875 Connecticut Ave, NW, Ste. 410 Washington, D.C. 20009

ty G

Special Ass

Attorney General

Robin E. Fe

Assistant Attorney General

72 Pine Stteet

Providence/, Rhode Island

(401)274-^400 x2301

Elojcabeth Murdock Myers Executive Counsel to the Governor Bruce G. Sundlun State of Rhode Island State House Providence, Rhode Island

Date: March 18, 1994

Anthony A./Cl^rr'a^o Associate/Director and Chief Legal Counsel Ellen Evans Alexander Deputy Chief Legal Counsel Department of Corrections 75 Howard Avenue Cranston, Rhode Island (401) 464-2246
Date: March 18, 1994

-27-

ft

3-4128

( S A 5 S August 1991. Single cells are required for Inmates assigned to maximum and dose custody. All celb In which inmates are confined conform with the following requirements:
1. There must be 35 square feet of unencumbered space for the single cell occupant 2. When confinement exceeds 10 hours per day, there is at least 80 square feet of total floor
space for the occupant 3. "Unencumbered space" is usable space that is not encumbered by furnishing or fixtures.
At least one dimension of the unencumbered space is no less than seven feet In determin* ing unencumbered space, all fixtures must be in operational position and must provide the following minimum areas per person: bed, plumbing fixtures, desk, and locker. 4. Supervision is consistent with standard 3-4170.

COMMENT This standard encourages design flexibility and creativity byrelatingcell size to the amount of unencumbered or free spxe provided.

3-412EM CAddej&Vugust 1991. Single cells/rooms and multiple occupancy cells/rooms may be used for * housing inmates in medium/minimum custody when the classification system, cell/room size* and level of supervision meet the following requirements:

Num ber of Occupants Amount of Unencumbered Space*

1

35 square feet per occupant

2-50

25 square feet**

'"Unencumbered space" is usable space that is not encumbered by furnishings or fixtures. At least one dimension of the unencumbered space is no less than seven feet In determining unencumbered space in the cell or room, the total square footage is obtained and the square footage of fixtures and equipment is subtracted. All fixtures and equipment must be in operational position and must provide the following minim urns per person: bed, plumbing fixtures (if inside the cell/room), desk, locker, and chair or stool. ••Sleeping area partitions are required if more than four people are housed in one sleeping area. 2. When confinement exceeds 10 hours per day, there is at least 80 square feet of total floor space per occupant 3. Housing is in compliance with ACA standards 3-4132,3-4133,3-4134,3-4137,3-4144, and 3-4282. 4. Medium security inmates housed in multiple occupancy cells/rooms require direct supervision. (See glossary for definition of direct supervision.)
A classification $ystetn is used to divide the occupants into groups that reduce the probability of assault and disruptive behavior. At a minimum, the classification system evaluates the following:
• mental and emotional stability • escape history
Appendix

R. W. Powitz & Associates, P.C.
PO. Box 32365 Defroit, Michigan 48232-0365
<313) 972-458O

To:

A. T. Wall, Esq., Assistant Director

Rhode Island Department of Corrections;

and

Mark J. Lopez, Esq., Staff Counsel

American Civil Liberties Union Foundation

National Prison Project

From:

Robert W. Powitz, Ph.D., M.P.H. Consulting Sanitarian

Subject:

Environmental Health and Safety Evaluation of Rhode Island Department of Correction facilities: Intake Service Center; Special Needs Facility and Women's Facility

Date:

March 12, 1992

On March 3rd and 4th, 1992, an environmental health and safety evaluation was made at'the above named facilities within the State of Rhode Island institutional complex. This evaluation was conducted at the request of the State of Rhode Island and the ACLU National Prison Project. The purpose was to recommend the maximum inmate population carrying capacity of the facilities and make whatever comments on environmental health and safety as appropriate.
Accompanying this consultant during the tour were Mr. Kent Grissom, Sanitarian for the Rhode Island Department of Corrections and Mr. Mark Lopez, Staff Counsel for the ACLU National Prison Project. The writer would like to thank Mr. Grissom and the facility wardens for their cooperation, candor and kind hospitality.
The evaluation consisted of an on-site audit supported by nondestructive sampling of the environment to verify the findings. All sampling was conducted with pre-calibrated equipment in accordance with accepted protocols. The findings of the audit were compared against established standards: the American Correctional Association, Standards for Adult Correctional Institutions, 3rd Edition, and, the American Public Health Association, Standards for Health Services in Correctional Institutions, Second Edition. The standard which most closely reflected the prevailing conditions was used in determining population density. By enlarge, the recommendations reflected in this report were by consensus of all parties in the audit tour.
Appendix

The housing and support areas appeared to be well-maintained and clean. The food service facilities were in an exceptionally sanitary condition; all foods were adequately protected and proper temperatures were being maintained.
Many areas surveyed as part of this audit were scheduled to undergo renovations. Therefore, the recommendations which follow are based upon analogous conditions and a plan review. It is recommended that the facilities be reevaluated after all modifications have been completed.
IntaXa Service Center:
The South side of the Intake Service Center has a capacity of 168 inmates and a current population of 130. There are eight Pennsylvania styled modules: six having 24 cells each in a bilevel configuration, and two have 12 cells each. The facility was originally designed for single cell occupancy with adequate accompanying day space of approximately 35 ft.sq. per inmate. A typical cell has approximately 70 ft.sq. of which 44 ft.sq. are unencumbered. The ventilation system provides an adequate amount of air to the cell although the amount of fresh air makeup could not be determined. The cells themselves are positive pressured relative to the day space area. The cell exhaust intake is positioned approximately two feet from the air supply. As a result, there is poor air circulation within the cells. This was verified by a smoke tube test. The temperatures were well within the comfort range. However, the relative humidity was measured at 17%, which is considered low; apparently there is no humidification in the ventilation system. Desk and day room lighting was below acceptable standards. The plumbing system however, was well maintained and adequate.
Reportedly, out of cell activity is approximately five hours per day with 1.5 hours as yard time every other day. Each level of the modules share the day space during the ten hour activity period. When inmates are in the day room, their cells are locked and unavailable as toilet facilities. There are two toilets and two urinals serving the day room area. Showers adjoin the day room toilets and access to them is not restricted.
The on-site laundry facilities are well-designed and adequate to meet most of the laundry needs of the facility. Inmates do not launder their own personal garments within their cells and there was no evidence of soiled linens, beds or bedding. Personal hygiene supplies are in adequate supply and readily available to the inmates. Smoking is not restricted and there are no cells designated for non-smokers.
The infirmary (which will undergo major renovation) was crowded, with beds less than six feet apart and total individual space less than 45 ft.sq. per inmate. The room is poorly ventilated; air circulation was barely detectable and smoking was not restricted for the comfort of those inmates with respiratory disease.

The toilets and showers are not accessible for handicapped or infirm inmates; there are no grab bars or nurses' call button. Bed heights were not adjusted and there is no infection control program.
The isolation rooms are positively pressured. The flow of air is from the room to the corridor. There is no protection of uninfected individuals in the vent of an isolation for a communicable respiratory disease. There was a Psorid fly infestation within the room originating from the shower drains.
The intake and committing area is small and the housekeeping was not at the quality which has been established throughout the facility.
Feeding of the inmates is centralized. The kitchen and dining room facilities were extremely clean and well maintained. There was no evidence of vermin, the food temperatures were safe and food protection was exceptional. Tray preparation was in less than 20 seconds in a continuous operation.
Although the kitchen has the potential for safely preparing and serving approximately 2800 meals per day, there are significant limitation is space, lack of make up air in the kitchen and poor exhaust ventilation in the dish washing room. Space in the kitchen and serving lines are limited. Only one serving line was in operation at the time of this audit. The inmate workers were somewhat crowded and space was limited in moving heavy and hot objects. There is inadequate makeup air in the kitchen. The canopy hoods over the food preparation islands cannot be turned on during food serving activities. A negative draft is created within the kitchen bringing in air through the serving doors. The flow therefore, is from soiled to clean. The ventilation in the dish washing room is poor. Condensate is not removed due to the excessive static pressure losses caused by the duct configuration which serves the dishwasher.
Recommendation;
It is my recommendation that the Intake Service Center South, remain single celled and that a population greater than 168 is unacceptable due to the inadequate environmental conditions. The limiting factors include: less than 35 ft.sq. of unencumbered space within the cells and day rooms and the lack of adequate air circulation in the housing areas. In addition, there are only two toilet hoppers available to each module day room. This results in a ratio of 1 toilet to 24 inmates in the day room space. The lack of adequate physical space and poor ventilation in both the infirmary and kitchen limit the amount of activity in each area.
It is my understanding that a compromise position of 250 inmates has been offered. This would increase the density in the day rooms to 36 inmates and reduce unencumbered space in cells to less than 15 ft.sq.. I find this acceptable only if the following conditions are modified and the proposed remodeling completed.

However, I should emphasize that under no circumstances are the facilities capable of safely housing a population of 336.
Here are the minimum requirements to begin double celling:
1. Optimize in-cell ventilation by redesigning the air intake and exhaust vent grilles. Replace the perforated plates covering the intake and exhaust vents with a secure hardware cloth. This will reduce the static pressure losses and permit greater air turnover within the cells. An air deflector should be installed on the air intake vent to direct the flow to the back of the cell and thereby increasing circulation.
In addition, humidification must be provided in the air makeup system and the day room exhaust needs to be enhanced to remove smoke and body odors.
2. Out of cell activities should be increased to a minimum of ten hours per day. Although this would limit personal unencumbered space within the day rooms, the out of cell activities would offset the more crowded conditions if the cells were left unlocked. By doing this, additional toilet facilities would not be needed. However, if the cells were to remain locked during out of cell time, additional sanitary facilities must be provided by converting two cells on base tier for toilet use, or installing two additional toilets in an area suitable for surveillance.
3. Since the unencumbered space within the cells will be less than 15 ft.sq., during double cell occupancy, the need to enhance in-cell conditions becomes essential. Only one inmate at a time will have access to the desk and even the floor; the other inmate will have to use his bed. Therefore, additional lighting needs to be provided so that reading materials can be seen without strain at the bunks.
4. Provide for adequate make-up air within the kitchen facility so that preparation can be carried out during serving times. The ventilation in the dish washing room needs to be modified or improved to remove condensate from the dish washing operation.
5. Make immediate modifications in the infirmary to prevent secondary spread of infectious diseases. Particular attention should be placed on current inmate density and on the establishment of a comprehensive infection control program.
special Needs Facility:
The Special Needs Facility has a capacity of 250. On the day of this evaluation, the population was 238. Reportedly, there will be significant modifications made to the ventilation system and toilet areas; some modifications are also scheduled for the kitchen.

A basement recreation and industries area will be converted into a dormitory similar in size to those in the rest of the facility.
Currently, the ventilation is largely passive. Window area exceeds standards except at the facilities lying below grade, lighting is adequate and the facility was very clean and well maintained. Temperatures and humidity levels were within the comfort range. The kitchen, although old, has ample space and is in a sanitary condition and well maintained. Feeding is centralized.
The dormitory toilets were clean, well lighted and maintained. However, the ratio of showers to inmates in dormitories A, B and C, are below the older standards of 1:15. Additionally, there is a problem with condensate removal; particularly in Dorm A. The shower area is in a cul-du-sac and has no exhaust ventilation. This has resulted in spalling tiles and peeling paint.
Recommendations:
When construction on the basement dormitory has been completed; Dorm D toilets renovated; eight additional showers are provided in dorms A, B and C; toilets and showers are installed in A Honor Dorm; and, adequate toilet facilities and ventilation installed in Dora E, the capacity of this facility can be 324. viz.:
Dormitory A, B, c and F: 54 inmates each; Dormitory D: 32 inmates; Dormitory AH: 20 inmates; Cell Block DCB: 16 inmates; Cell Block CBS: 20 inmates, and Dormitory E: 2 0 inmates.
Women's Facility:
The Women's Facility has a current capacity of 110. At the time of this evaluation, the count was 98 and there were 180 beds within the facility. The kitchen feeds approximately 200 inmates per meal. Although the kitchen is old, paint is peeling, and the storage space is inadequate, the overall sanitation was exceptionally good. It is understood that this facility will undergo remodeling and several pieces on new equipment will be installed at that time.
The inmate housing has no ventilation system. The air exchange is passive, heat cannot be regulated (temperatures in excess of 85 degrees with relative humidity of 7% were measured). There are no toilets in the sleeping rooms. The correctional officers open the doors upon request or provide for toilet access once an hour during lockdown and sleep hours. The toilet in D wing has a leak in the ceiling and the finish on the lavatory island has been damaged from chronic wetness.

Recommendation:

Under present conditions the capacity of the building (110 inmates) should not be exceeded. The limiting factors include the lack of ventilation throughout the building, the space limitation in the kitchen and the below standard ratio of toilet and personal hygiene facilities per inmate.
I believe that the capacity of the building can be raised to 125 when the following modifications and reconstruction is completed. The additional carrying capacity can be absorbed in the 17 larger dormitory rooms. These rooms currently have a capacity for four inmates each. However, the space standards would not be compromised if a fifth inmate were to be placed in these rooms.
To safely house the any inmates within the building, the following recommendations are offered:

1. The inmates should have free access to the toilets at all times. The configuration of the wings will permit adequate surveillance to monitor movement during the evening and night shifts.

2. Exhaust fans should be immediately installed to help modulate

temperatures and remove ..smoke and odors from the sleeping rooms.

Since the ventilation is' only passive, a number of sleeping rooms

should be designated as smoke free for non-smoking inmates.

A study to install a building-wide ventilation system should

be undertaken and completed within a time-frame acceptable to all

parties.

*

3. The toilet areas need to be repaired and exhaust ventilation installed within the shower rooms. The floor finish within the shower room in the segregation wing needs to be improved so that it can be effectively cleaned and sanitized.

4. Where security is not an issue, the dorm rooms should have a table and chairs so that inmates can write letters and engage in quiet activities during in cell times.

General Recommendations:

Although the fire drills and evacuation procedures are well documented and follow a rigid schedule, there are several conditions throughout the facilities which pose a fire hazard; emergency egress is of particular concern. For instance, stairwell doors were propped open and room egress blocked by desks and chairs; ease of egress was also restricted in some of the domicile areas. It is strongly suggested that a full-time fire marshall be hired for the complex. This individual can monitor fire loading and review remodeling plans for compliance with Life Safety Code 101.

A study should be undertaken to review cleaning products used for general sanitation particularly in the food preparation areas. Phenolic disinfectants are both toxic and polluting and should be replaced with a tuberculocidal quaternary detergent/disinfectant. Several products do ..ot appear to be compatible with one another
Abrasive cleansers, when used on vitreous china will abrade the surface. Once scored, it provides harborage for bacterial growth, formation of mineral crystals and organic stain. Additional safe cleaning compounds are needed for effective cleaning. By standardizing cleaning materials, overall sanitation and safety can be further improved, cost can be minimized, finishes protected, and pollution abated.
Please call me if clarification on any of the recommendations is necessary or if I might be of further service to you.
Respectfully submitted,
Robert W. Powitz, Ph.D., M.P.H. Consulting Sanitarian

 
 DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., )

V.

) C.A. No. 74-172 L

BRUCE SUNDLUN, et al.

)

THOMAS R. ROSS, et al., V.
BRUCE SUNDLUN. et al.

) ) C.A. No. 75-032 L )

ORDER APPROVING PROPOSED FINAL SETTLEMENT AGREEMENT

This matter having come before the Court at a hearing held

on June 30, 1994, and the Court having considered Keith A.

Werner's Motion to be Excluded From The Class Action, the various

duplicate Motions For Enlargement of Time filed by certain class

members, the full record before the Court, Plaintiffs Memorandum

in support of Proposed Settlement Agreement, argument presented

by Alvin J. Bronstein for the plaintiff class and Anthony A.

Cipriano for defendants, various objections filed by certain

class members, and the Court being fully advised in the premises

and concluding that the proposed agreement is an arms length

agreement fairly representing and protecting the interests of the

Plaintiff class, that there has been no showing that any class

member will be injured by this agreement thereby warranting

exclusion and no showing why any enlargement of time is

necessary,

Palmigiano v. Travisono

PC-RI-001-018

IT IS HEREBY ORDERED THAT: 1. Keith A. Werner's Motion To Be Excluded From The Class Action is denied; 2. The various Motions For Enlargement of Time are denied; 3. The Proposed Final Settlement Agreement, filed by the parties on April 13, 1994 is approved.

Dated:

Chief United State's Distri/dt Judge

THE NATIONAL PRISON PROJECT

.... J

July 11, 1994
Honorable Ronald R. Lagueux United States District Court Providence, Rl 02903

RECEIVED
JUL IS
RONALD R. LAGUEUX U.S. DISTRICT JUDOB
DISTRICT OER.L

Re: Palmiaiano v. Sundlun C.A. No. 74-0172

Dear Judge Lagueux:
In accordance with your direction at the June 30, 1994 hearing, I enclose a proposed order approving the settlement agreement in the captioned matter.
I have previously circulated copies of the proposed order to counsel for the defendants and I have been advised by Mr. Cipriano today that the language of the order has been approved by all of defendants' counsel.
Sincerely,

Aivin J. Bronstein

1875 Connecticut Avenue, Washington, D.C. 20009 (202) 234-4830 Fax # (202) 234-4890

Alvin J. Bronstein
EXECUTIVE DIRECTOR

Elizabeth R. Alexander

ASSOCIATE DIRECTOR

FOR LITIGATION

1

Stuart H. Adams, Jr. Mohamedu F. Jones Ayesha N. Khan Edward I. Koren Mark J. Lopez Marjorie Rifkin Margaret Winter
STAFF COUNSEL

Jan Elvin
EDITOR. NPP JOURNAL

Jenni Gainsborough
ASSISTANT TO THE DIRECTOR
Kelly Gardner
OFFICE MANAGER

Jackie Walker
AIDS INFORMATION COORDINATOR

J. D. Dolby Tracee McSwain Solomon N'jie Walter Smith
STAFF ASSOCIATES

National Headquarters 132 West 43 Street New York. NY 10036 (212)944 9800
Nadine Strossen
PRESIDENT
Ira Glasser
EXECUTIVE DIRECTOR

cc: Maureen G. Glynn, Esq. Elizabeth Murdock Myers, Esq. Anthony A. Cipriano, Esq.

 
 DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al. , )

)

v.

) C.A. No. 74-172

)

LINCOLN ALMOND, e t a l .

)

)

)

THOMAS R. ROSS, e t a l . ,

)

)

v.

)

C.A. No. 75-032

)

LINCOLN ALMOND, et al.

)

STIPULATION TO MODIFY FINAL SETTLEMENT AGREEMENT The parties hereby agree to the following amendment of the Final Settlement Agreement in the above-entitled case which is dated March 18, 1994 and approved by the Court on July 15, 1994. The above agreement provided in Section III, I C.3 that the population capacity at the Women's Jonathan Arnold Facility shall be one hundred and ten (110). It further provided that if certain environmental improvements and changes were completed by the defendants, the capacity at that facility may be increased to one hundred and twenty-five (125). The defendants have now verified that the aforementioned environmental improvements and changes have been completed and plaintiffs' counsel has inspected the facility and confirmed that the improvements and changes have been completed. Accordingly, it is stipulated and agreed that Section III, 1 C.3 of the above agreement is modified to the extent that the population capacity at the Women's Jonathan Arnold Facility shall hereafter be one hundred and twenty five (125).

Palmigiano v. Travisono

PC-RI-001-019

All other provisions of the above agreement remain in full force and effect.

Dated: May 16, 1995 Attorneys for the Plaintiffs

Attor

•- the Defendants

ironstein Mark J. Lopez The National Prison Project
of the ACLU Foundation 1875 Connecticut Ave., Suite 410 Washington, DC 20009
Attorney for Defendant LINCOLN ALMOND in hi:" capacity as/jGovei/rior//of the&tate xflb Rh^cle Ziland
feph S. Larisa. ^rv (#4113) cecutive Counsel to the Governor State House Room 119 Providence, RI 02903 (401) 277-2080 ext. 216
Approved and So Ordered:

SrjeciaiT^sstistant Attorney
rl
72 Pine Street Providence, RI 02903
Anthony ft/ CiprJano, Esq. Chief Legal Counsel Rhode Island Department
of Corrections 7 5 Howard Avenue Cranston, RI 02920

Chief United States District Judge

 
 w I

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

CL,uC •STRICT COURT ^-CT Of ^ I.

NICHOLAS A. PALMIGIANO, et al. Plaintiffs
v.

C.A. No. 74-0172-L

LINCOLN ALMOND, et al. Defendants

THOMAS R. ROSS, et al. Plaintiffs
v.
LINCOLN ALMOND, et al. Defendants

C.A. NO. 75-0032-L

STIPULATION OF DISMISSAL On March 18, 1994, the parties entered into a Settlement Agreement to address the ultimate termination of compliance monitoring and the Court's active supervision of the remedial orders in this case. The Agreement was preliminarily approved by the Court on April 13, 1994 and, after notice to the plaintiff class and a hearing, the Court entered an order of final approval on July 15, 1994.l The Agreement provided, inter alia, that monitoring of compliance by independent monitors would take place and that after a determination of substantial compliance with the remedial orders of the Court a period of self-monitoring by defendants would commence. After a hearing on December 6, 1994, the Court entered an Order on December 7, 1994 granting a joint motion of the parties

1

In an appeal by one member of the plaintiff class, the

Court of Appeals affirmed the final approval order of this Court.

Palmigiano v. Sundlun, Keith Werner, plaintiff-appellant. No. 94-

1816 (1st Cir., June 27, 1995) (unpublished opinion).

Palmigiano v. Travisono

PC-RI-001-020

- 2determining that the defendants were in substantial compliance.2

The joint motion provided that the defendants would provide

detailed monthly self-monitoring reports of compliance to counsel

for the plaintiffs for a period of six (6) months.

The defendants have provided to counsel for plaintiffs a

detailed self-monitoring report of compliance for six (6) months,

the last report being dated June 19, 1995. Plaintiffs' counsel has

periodically requested and received supporting documentation of

various aspects of defendants7 compliance.

In addition,

plaintiffs' counsel has independently verified various aspects of

defendants compliance by visiting and inspecting each of the

facilities covered by the Settlement Agreement and by meeting and

corresponding with members of the plaintiff class.

In light of the foregoing, the parties hereby agree and

stipulate to the following:

1. The defendants are in substantial compliance with the

remedial orders of the Court as defined in the Settlement Agreement

and the joint Motion for Determination of Compliance. With respect

to certain capital improvements and non-capital improvements or

additions, the defendants have submitted to plaintiffs' counsel

written documents which set forth in detail a plan for the

improvement, alterations, renovation, revision of policies, or

addition of employees; the amount of funds required; the source

2

The Settlement Agreement and the joint motion defined

the term substantial compliance to include certain prospective

actions to be taken by defendants.

- 3of those funds; and a specific timetable for completing the plan.3
2. in order to comply with the healthcare provisions of Exhibit A attached to the Motion for Determination of Compliance (II.A. Hiring of a Medical Director; II.C. Develop a system for tracking chronic disease patients; II.D. Develop a Quality Assurance Program), the defendants will comply with and fulfil all of the terms of a contract dated December 23, 1994 between the Rhode Island Department of Corrections and Dr. Ronald M. Shansky.*
3. At the time that the Rhode Island Criminal Justice Oversight Committee5 adopts the specific population capacities and restrictions set forth in Section III of the Settlement Agreement dated March 18, 1994 (see Settlement Agreement, Sec. IX.B.l.), this case, specifically the provisions of Section III (Overcrowding Restrictions), shall be retired and placed on inactive status in this Court so long as the aforesaid Oversight Committee maintains and enforces the above mentioned population capacities and restrictions (see generally, Section IX, Settlement Agreement. March 18, 1994.) .6

3

The specific capital and non-capital items included in

this provision are identified on Exhibit A attached to the

December 6, 1994 Motion for Determination of Compliance.

4

This contract was approved by the Rhode Island

Department of Administration by Purchase Order No. 147149 dated

February 7, 1995.

5

Created by Title 42, Chap. 26, Sec. 13 et seq.f" General

Laws of the State of Rhode Island.

6

The parties have been advised that the Oversight

Committee is scheduled to meet on July 11, 1995 for the purpose

of adopting the population capacities and restrictions.

- 44. This lawsuit and all outstanding decrees shall be dismissed except for the provisions of Section III of the Settlement Agreement (Overcrowding Restrictions) which shall survive and be enforceable only as set forth in Section IX ofthe Settlement Agreement and paragraph 3. above. 5. The defendants shall provide to plaintiffs' counsel a quarterly report commencing on September 30, 1995 and continuing for a period of five (5) years, each report detailing the actual population of each unit of each facility in the A.C.I, on the last day of the quarter.7 6. The plaintiffs are entitled to recover reasonable and necessary attorneys' fees, expenses and costs incurred in this case.

Dated: July 6,1995 Attorneys for Plaintiffs

Attorneys for Defendants

Alvin J. Bronstem, Esq.
Mark J. Lopez, Esq.
The National Prison Project of the ACLU Foundation
1875 Connecticut Ave., NW Ste. 410 Washington, D.C. 20009 202/234-4830

rtauree^n G. 42Iynn, Esq. Special Assistant Attorney
General 72 Pine Street
Providence, RI 02903
401/274-4400

7

This five-year limitation shall only apply to

defendants' obligation to provide quarterly population reports

and does not apply to defendants' obligation to maintain the

population capacities and restrictions referred to in Section III

of the Settlement Agreement.

- 5-

Attorney for Defendant LINCOLN ALMOND in his capacity as Governor di the State of Rhode
ros'eph S. Larisd, Jtf.v(/4113) (g^ecutive Counsel to the
Governor State House Room 119 Providence, RI 02903 401/277-2080 ext. 216
Approved and So Ordered:

Anthony ^ Chief Legal Counsel Rhode Island Department
of Corrections 75 Howard Avenue Cranston, RI 02920

Chief United States Distr

 
 Palmigiano v. Travisono

0091C/1-3

• • •• ••

••• •

• •• • • • • ! • • • •

• • • • • • • IIBBI I •

PC-R-001-021

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al.

C.A. No. 74-0172

v. LINCOLN C. ALMOND, et al
THOMAS R. ROSS, et al.

C.A. No. 75-0032

v. LINCOLN C. ALMOND, et al.
STIPULATION
WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court For The District of Rhode Island on July 15, 1994 (a copy is attached);
WHEREAS, there have been recent population increases at the Women's facilities (known as Gloria McDonald facility) and Intake Service Center South ("ISC") facilities which were covered by the Final Settlement Agreement;
WHEREAS, Defendants have submitted a plan to increase the capacities in the Women's Gloria McDonald facility and the Intake Center South facility by reconfiguring certain space and usage in said facilities;

The Gloria McDonald facility was previously known as the Women's Jonathan Arnold facility in the Final Settlement Agreement.

Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995. (A copy of the June 1995 Modification is attached.) The Final Settlement Agreement, as modified in June 1995, provided in Section III, 1f D.3 that the population capacity at the Women's Prison Facility shall be one hundred twenty-five (125). The Defendants seek to increase the population capacity for the Women's Prison Facility (known as the Gloria McDonaldfacility) to one hundred forty-five (145).
The Final Settlement Agreement, dated March 18, 1994, in Section III, If D.4 provided that the ISC South population capacity shall be two hundred fifty-eight (258). The Defendants seek to increase the population capacity in the ISC South by fifty-eight (58), as set forth:
• Module I - increase to forty-six (46), • Module J - increase to twenty-four (24), • Module K - increase to forty-six (46), • Module L - increase to forty-six (46), and • Hospital beds - increase of an additional ten (10) beds.
Therefore, the total capacity for ISC South shall be three hundred sixteen (316).
The Defendants have now verified that the aforementioned increases would not be detrimental to the infrastructure of the facilities and would improve prison management. Plaintiffs' counsel has inspected the facilities and confirmed that the requested population increases at the Women's Gloria McDonald facility and ISC South would not impair or infringe upon inmates' rights.

Accordingly, it is stipulated and agreed that Section III, If D.3 is modified to the extent that the population capacity at the Women's Gloria McDonald facility shall hereinafter be one
J
hundred forty-five (145) and Section III, 1f D.4 is modified to the extent that the population capacity at ISC South shall hereinafter be three hundred sixteen (316), permitting greater than fifty percent (50%) double celling in Modules I, J, K, and L as set forth herein.
All other provisions of the Agreement remain in full force and effect.

Dated:

A?.

Attorneys for the Plaintiffs

Attorneys for the Defendants

Alvin J. fcronstein, Esq. The National Prison Project
of the ACLU Foundation 1875 Connecticut Avenue Suite 410 Washington, DC 20009

Maureen G. Glynni/ #381 Special Assistant
Attorney General 150 South Main Street Providence, RI 02903

Approved and So Ordered:

Anthony hi Cipriswio, Esq. /j Chief Legal Counsel Rhode Island Department
of Corrections 75 Howard Avenue Cranston, RI 02920

Chief United States District Judge Date:

 
 0091c/1-3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et a). v.
BRUCE SUNDLUN, et ai. THOMAS R. ROSS, etal.
v. BRUCE SUNDLUN,-etal.

CA. No. 74-0172 CA. No. 75-0032

STIPULATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court For the District of Rhode Island on July 15, 1994 (a copy is attached);
WHEREAS, Defendants have submitted a plan to increase the capacities in the Medium II facility1 by reconfiguring certain usage in said facilities;
Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994,approved by the Court on July 15, 1994,and subsequently amended in June, 1995. (A copy of the June 1995 Modification is attached.)
Palmigiano v. Travisono
PC-RI-001-022 1 Medium II facility was previously known as the Special Needs Facility in the Final Settlement Agreement.

The Final Settlement Agreement, dated March 18, 1994, in Section III, 11D.2 provided

that this facility's population capacity shall be two hundred fifty (250). The Defendants seek to

increase this population capacity in the Medium II facility by forty-two (42), as set forth:

•

A Dorm - increase to sixty-eight (68),

•

B Dorm - increase to sixty-eight (68),

•

C Dorm - increase to sixty-eight (68).

Therefore, the total capacity for Medium II shall be two hundred ninety-two (292).

Furthermore, the Settlement Agreement provided in Section III, 11D.2 that "If F Dorm is

constructed, capacity can be increased to Three Hundred and Four (304) (fifty-four (54) inmates in F Dorm)".2 The defendants seek to increase this population capacity in F Dorm by fourteen

inmates as set forth:

•

F Dorm — increase to sixty-eight (68).

Therefore once F Dorm is constructed, the total capacity for Medium II shall be three

hundred sixty (360).

The Defendants have now verified that the aforementioned increases would not be

detrimental to the infrastructure of the facilities and would improve prison management. Plaintiffs'

counsel has inspected the facilities and confirmed that the requested population increases would

not impair or infringe upon inmates' rights.

Accordingly, it is stipulated and agreed that Section III, 1f D. 2 is modified to the extent that

the population capacity at the Medium II facility shall hereinafter be two hundred ninety-two (292)

and that after F Dorm is constructed the population capacity at the Medium II facility shall be three

2The dormitory referred to as "F Dorm" in the Settlement Agreement and in this Stipulation is now known as E Dorm on the Department's operational rosters.

hundred sixty (360).

All other provisions of the Agreement remain in full iorce and effect.

Dated:

Attorneys for the Plaintiffs

Worthy Defendants

Alvinj. Bron^tein,Esq. The National Prison Project
of the ACLU Foundation 1875 Connecticut Avenue Suite 4 I 0 Washington, DC 20009
Approved and So Ordered:

l a u ^ f f G . Glynn #3800 Assistant Attorney General 150 South Main Street Providence, Rl 02903
thony ^
Chief LegalCounsel Rhode Island Department
Of Corrections 40 Howard Avenue Cranston, Rl 02920

Chief United States DistrictJud Date.
Lincoln C. Almond is now Governor of the State of Rhode Island

 
 MEMORANDUM

TILLINGHAST. COLLINS & GRAHAM

\M- ^" ' id
- r

April 13, 1988

TO:
FROM: RE:

Parties and Counsel in Palmiaiano v. DiPrete. C.A. No. 74-172
J. Michael Keating, Jr
Applicable Continuing Orders in Palmigiano

In February, Judge Pettine asked me to compile a compendium of outstanding orders in the Palmioiano case to serve as a ready reference, earmarking for the parties those injunctive provisions that continue to be applicable to the defendants' ACI operations.
What follows is a synopsis of remedial provisions, modified in a host of subsequent orders, that survive from the original August 10, 1977 Order. Only a handful of the elements of that order have been declared legally satisfied (see the January 25, 1984 Order, Attachment 3 ) ; the rest remain viable and fully applicable injunctive orders, whose effectiveness will endure as long as the court retains jurisdiction of the suit. I have attached to this memorandum copies of those orders that have wrought substantial modification or expansion of the original decree.
The defendants' continuing obligations under the August 10, 1977 Order and its progeny include the following:
Palmigiano v. Almond

PC-RI-0001-0024

3. Physical Conditions in Other Facilities (paragraph 4 of the August 10, 1977 Order):
• Physical conditions in all facilities of the ACI must conform with the minimum standards of the U.S. Public Health Service, the American Public Health Association and the R.I. Department of Health.
• No more than one prisoner shall be housed in a cell that is less than 60 square feet.
• Only prisoners classified as minimum or medium security shall be housed in dormitories (March 29, 1978 Order, Attachment 2 ) .
• The defendants shall employ a sanitarian. • The new Medium Security facility shall be completed and occupied by no later than November 1, 1989 (July 28, 1987 Order, 5 ) . 4. Classification and Programming (paragraph 5 of the August 10, 1977 Order): • The defendants must operate a classification system in which decisions are based on adequate information about prisoners and an assessment of individual prisoners' needs. • Prisoners must have individualized classification plans. • Admissions and orientation (A&O) prisoners are to be separated from other sentenced offenders.
- 3-

• Interested prisoners must have educational (including college extension programs), pre-vocational and vocational and recreational and avocational opportunities.
• The defendants must provide the opportunity to prisoners to participate in a pre-release program.
• Work-release, pre-release and other community-based facilities are to be established.
• Prisoners' classification must be reviewed semi-annually.
5. Mental Health (paragraph 6 of the August 10, 1977 Order):
• The defendants are to employ an adequate number of mental health professionals to diagnose, treat and care for prisoners with mental health problems.
• The defendants will expand mental health services to keep pace with population increases (November 19, 1984 Order, Attachment 4 ) .
6. Medical Care (paragraph 7 of the August 10, 1977 Order):
• The defendants' medical care delivery system must conform with the minimum standards of the U.S. Public Health Service, the American Public Health Association, and the R.I. Department of Health.
• The defendants will expand medical care to keep pace with population increases (November 19, 1984 Order).
— 4—

• The defendants specifically will: Fill approved medical care staff positions
- Design and implement a quality assurance program Develop institution-specific procedures and protocols
- Design and implement a tracking system for the chronically ill
- Perform intake physicals as required (October 6, 1987 Order, Attachment 6)
7. Drug Treatment (paragraph 8 of the August 10, 1977 Order):
• The defendants must establish and maintain a detoxification program.
• Drug treatment programs must comply with minimum standards of the U.S. Public Health Service, the American Public Health Association, and the R.I. Department of Health.
• Drug treatment programs must be under the supervision of a physician willing and able to treat prison addicts.
8. Protective Custody (paragraph 9 of the August 10, 1977 Order):
• Physical conditions in facilities used to house protective custody prisoners must conform with minimum standards of the U.S. Public Health Service, the American Public Health Association and the R.I. Department of Health.

—

j

• Protective custody inmates must have access to educational, vocational, recreations, avocational, job and transitional and community-based facility opportunities comparable with the general population.
9. Confinement of Prisoners in Appropriate Custody (paragraph 10 of the August 10, 1977 Order):
• Prisoners are to be housed in institutions suitable to their security classification.
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986

443 FEDERAL SUPPLEMENT

ing of such facilities as remain unfit for human habitation.
For the present, the Court will order the defendants to take immediate action to correct the most glaring abuses this case has uncovered. Beyond that, the Court sets out in its order the minimum standards with which defendants must comply.17
The complex nature of the task at hand, and the demands on the Court's time and attention which would be entailed by direct court supervision of the remedial order, have led the Court to rely on a Master to assist the Court in the remedial phase of these cases. The Master will monitor the defendants' implementation of the decree, review and evaluate the feasibility of plans proposed by the defendants, assist the defendants in formulating plans, and suggest such modification or supplementation of the Court's Order as seems necessary. To the extent that the Master identifies factors which obstruct compliance with the decree, he shall so advise the Court, and shall suggest necessary action. In short, the Master will act under Fed.R.Civ.P. 53, as an arm and as the eyes and ears of the Court. Although the Court cannot delegate its responsibility finally to resolve any disputes between the parties which may arise during the implementation period, this responsibility can be more intelligently, and perhaps more sparingly, exercised by reason of the Master's fair and impartial assistance.
The costs of these proceedings will be taxed against the defendants.
An Order will be entered accordingly.
ORDER
Pursuant to the findings of fact and conclusions of law set forth in the Opinion made and entered in this cause, it is the order, judgment, and decree of this Court that:

1. Defendants have violated plaintiffs' rights under the Eighth and Fourteenth Amendments to the Constitution as well as Title 42, Ch. 56 of the Rhode Island General Laws.
[19] 2. (a) Defendants shall, within three months from the entry of this order remove all awaiting trial detainees from the present Maximum Security Facility; shall thereafter house said detainees in facilities which are separate from facilities which house sentenced prisoners; and thereafter shall prevent intermingling of, and contact between, detainees and sentenced prisoners;
(b) defendants shall house pre-trial detainees in facilities which comply with the minimum standards set forth hereafter in paragraph 4, and detainees shall not be housed in dormitories;
(c) defendants, within three months from the entry of this order, shall provide each awaiting trial detainee with recreational^ programs, and shall make available as soon as possible access, on a voluntary basis, to constructive work opportunities, to educational programs and to treatment programs which deal with problems associated with drug addiction, alcoholism, mental illness and physical illness or disabilities.
[20] 3. (a) Defendants shall, within thirty days from the entry of this order, advise the Court of a date certain when the present Maximum Security facility will no longer be used for housing prisoners, which date certain shall be no more than one year from the entry of the order; to the extent that the defendants are unable to comply with this deadline for those incorrigible inmates eventually" to be housed in a new Maximum facility, the Court is prepared to permit retention of such inmates in th<.· present structure, provided that the area housing them can be made fit for human

37. In the appendix, attached to this Opinion, the Court sets forth the standards published by professional bodies, and the leading cases, on which the minimum standards in paragraphs 4, 5, and 6 of the Order in this case are based. The Court is not unmindful that the emergency measures set forth in its Order mav necessitate

the temporary use of facilities which do not lend themselves, in certain respects, to economically feasible compliance with each of thf standards detailed herein. To that extent, the Court is prepared to modify the Order at thr noticed request of the defendants with the »<J· vice of the Master.

ATTACHMENT 1 Original August 10, 1977 Order

PALMIGIANO v. GARRAHY
a t * as 443 FJ5upp. S5« (1977)

987

habitation and provided further the defend- working order, Kitchen employees and ants fully comply with the other _relevant prisoners shall be adequately trained and

provisions of this order, particularly but not supervised;

limited to paragraph 5;

(5) all trash and debris shall be regularly

[21] (b) defendants shall within nine months from the entry of this order reduce the population of the Maximum Security facility in accordance with the reclassifica-

removed from hallways, cellblocks, corridors and other common areas and trash and debris shall in no circumstances be stored or accumulated in vacant cells;

tion process set forth hereafter in para- (6) all toilets, showers and wash basins

graph 5;

shall be properly maintained and kept in

(c) defendants shall within six months from the entry of this order and for so long as they utilize the Maximum Security facility, bring said facility into economically fea-

good repair. Every cell shall be equipped with a working toilet that flushes from inside the cell and with a wash basin with hot and cold running water;

sible and practicable compliance with the minimum standards of the United States Public Health Service, the American Public Health Association and the Department of Health, State of Rhode Island, as they relate to food service, sanitation, lighting, plumbing and insect and rodent control.

(7) no more than one prisoner shall be confined in any cell which is less than 60 square feet;
(8) every prisoner shall be provided with a clean mattress, which meets with federal fire safety standards, and with clean bed linens, towels and soap;

4. (a) Defendants shall within nine months from the entry of this order, bring each building and facility under their control, particularly but not limited to the housing and food service areas of said buildings and facilities, into compliance with the minimum standards of the United States Public Health Service, the American Public Health Association, and the Department of Health, State of Rhode Island. (The separate compliance requirements for the Maximum Security facility are set forth in paragraph 3(c) above). Implementation of this paragraph 4(a) shall include, but not be limited to, the following:
(1) all facilities shall be adequately heated, lighted and ventilated. Windows •and window panes shall be properly maintained and replaced when broken;

(9) each convicted prisoner housed in a dormitory shall have at least seventy-five square feet of personal living space and only those prisoners who have been classified as Minimum Security shall be housed in dormitories;
(10) each dormitory shall be equipped with at least one toilet to every 15 prisoners; one urinal or one foot of urinal trough to every 15 prisoners, one shower to every 15 prisoners and one sink to every 10 prisoners. Toilets and urinals shall be kept reasonably clean and in good working order.
(b) Defendants shall within one month from the entry of this order, employ a qualified sanitation or environmental health officer to assist the defendants in obtaining and maintaining compliance with the provisions of paragraphs 3.(c) and 4.(a).

(2) each prisoner shall have access to (c) Defendants shall for one year from

household cleaning implements and sup- the entry of this order file a monthly writ-

plies;

ten report with the Court setting forth

(3) a regular and effective program of their progress on implementing the provi-

insect and rodent control shall be under- sions of this paragraph 4.

taken;
(4) food shall be stored, prepared and served under sanitary conditions which

5. (a) Defendants, not having classified prisoners according to state law, shall, within six months from the entry of this order,

meet minimum public health standards. reclassify all prisoners in the Rhode Island

Equipment shall be maintained in good penal system.

988

443 FEDERAL SUPPLEMENT

(b) Defendants shall contract with a qualified person or organization to aid in he implementation of the reclassification process detailed in this paragraph. The parties shall, within thirty days from the entry of this order, submit to the Court the names of such qualified persons or organizations.
(c) Defendants shall, in the reclass¡fication process, arrange for personal interviews of each prisoner and gather all pertinent information about each prisoner's community and institutional life, including, but not limited to, the following:
1. the age, offense, prior criminal record, vocational, educational and work needs, and physical and mental health care requirements of each inmate;
2. special needs arising from age, infirmity, psychological disturbance or mental retardation, requiring transfer to a more appropriate facility, or special treatment within the institution; and
3. eligibility for appropriate transfer to a pre-release, work-release, or other community-based facility.
(d) Defendants shall, as a result of the reclassification, develop a written classification plan for each prisoner and implement said plan by assigning prisoners to suitable facilities and programs. After nine months from the entry of this order, no prisoner who has been classified as Minimum or Medium custody shall be confined in the Maximum Security facility, and all newly sentenced prisoners who are in the process of being oriented and classified (now housed in the Admissions and Orientation Unit) shall be as required by state law totally separated from other sentenced and classified prisoners. Upgraded classification for any inmate shall not be delayed or denied for lack of program or housing space.
[22] (e) In order to implement the reclassification process, defendants shall:
1. establish adult basic education programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in these programs on a regular basis;

2. establish pre-vocational (including remedial education) and vocational training programs, designed to enhance marketable skills, with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;

3. establish recreational and avocational programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;

4. develop college extension programs so that they are available to prisoners at every Rhode Island prison facility;
5. create sufficient meaningful job opportunities so that every prisoner in the Rhode Island prison system shall have the opportunity to work and every prisoner who works at a job provided by the defendants shall be compensated for all work performed;

6. develop sufficient programs and facil-

ities to provide that each prisoner,

prior to release, is afforded the oppor-

tunity to participate in a transitional

` program designed to aid the prison-

er's re-entry into society;

.. ¦

7. establish work-release, pre-release,

and other community-based facilities

to accommodate those prisoners who

have been identified as appropriate

for participation in such programs.

(f) Defendants shall review the classification plan of each prisoner no less than once every twelve months.

6. Defendants shall hire an adequa« number of mental health professionals to diagnose, treat and care for those prisoner* who have mental health problems.

7. Defendants shall within six month* from the entry of this order bring the health care delivery system into compl¡»ncf with the minimum standards of the A en* can Public Health Association, the States Public Health Service, and the partment of Health, State of Rhode l

PALMIGIANO v. GARRAHY
Cite a* 443 F.Supp. 9S6 (1977)

989

S. (a) Defendants shall within thirty days from the entry of this order establish a program for the treatment of inmates physiologically addicted to drugs or alcohol that does not require withdrawal by means of an al>rupt denial or "cold turkey" approach.
(b) Defendants shall within three months from the entry of this order establish a program for the treatment of drug abuse that is in compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island.

shall be granted at any time and no advance notice shall be necessary.
(b) The Master is authorized to conduct confidential interviews at any time, without advance notice, with any staff member or employee of the Department or any prisoner. The Master or his delegate may attend any institutional meetings or proceedings.
(c) The Master may require written reports from any staff members or employees of the Department of Corrections with respect to compliance with and implementation of this Court's orders.

(c) Defendants shall within thirty days from the entry of this order place the responsibility for the treatment of drug abuse under a physician able and willing to treat prison addicts.
9. Defendants shall within nine months from the entry of this order house all protective custody prisoners in accordance with the standards set forth for the general prisoner population in paragraph 4., and make available to protective custody prisoners the equivalent of the educational, vocational, recreational, avocational, job, transitional and community-based facility opportunities set forth in paragraph 5.
[23] 10. Within nine months from the entry of this order, every prisoner shall be confined in an institution suitable to his or her security classification.
[24] 11. A Master shall be appointed by the Court within thirty days and shall be empowered to monitor compliance with and implementation of the relief ordered in this ¾se, in keeping with its purposes as recited in the Opinion. The Master shall also ad`ï«-· and assist the Department to the full¤ t extent possible. The Master will report Ol` a monthly basis to the Court on the progress of such compliance and implemenUtion.
In order to carry out his duties, the or his delegates shall have unlimited
****as u> a n y facilities, buildings or premis^ under the control of the Department of - 7`«ctions, or any records, files or papers ° ¾ n t ¡ d by said Department. Access

(d) The Master shall be empowered to recommend to the Court that any staff member or employee of such Department be moved or transferred within the Department as he deems necessary to obtain compliance with and implementation of this Court's order. In the event that hiring of additional personnel or the termination of any current personnel is necessary to carry out or to prevent interference with the Court's order, the Master shall file a written report with the Court explaining why such action is necessary. Defendants may file a written response to the report and the Court shall approve or reject the recommendation of the Master.
(e) The Master may act as a whole or through subcommittees appointed by him.
(f) The Master is authorized to select and hire with the prior approval of the Court, a full time staff consultant if such person is needed to assist him in carrying out his duties and one full time clerk-stenographer if needed. Adequate offices, equipment and supplies shall be made available by the defendants. The Master may also consult appropriate, independent specialists.
(g) Necessary expenses for carrying out the Master's duties shall be paid pursuant to Rule 53, Federal Rules of Civil Procedure, and shall be taxed as part of the costs of this case against the defendants in their official capacities.
12. The defendants shall, within six months from the date of this order, submit

(

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al.)

v.

)

J. JOSEPH GARRAHY, et al.

)

Civil Action No.

THOMAS R. ROSS, et al. v.
J. JOSEPH GARRAHY, et al.

Civil Action No. 75-032

MEMORANDUM AND ORDER
This cause came to be heard upon the Report of the Special Waster to the Court Regarding Defendants' Compliance With Its (August 10, 1977) Order as of February 10, 1978. For purposes of this memorandum, the Court will deal with subparagraphs 2(a), 7 and 12 of the August 10 Order. No request was received from any parties for hearings on these matters, but memoranda were submitted on some aspects of subrparagraph 2(a).
The report which follows measures the conduct of the defendants against the language of the August 10 Order and against that contained in modifications subsequently approved by the Court. The references to numbered paragraphs of the
ATTACHMENT 2 March 29, 1978 Order

(•

(

Court's Order correspond to numbers utilized in the original
order.
ORDER 2(a)
"Defendants shall by April 1, 1978 house awaiting trial detainees in facilities which are physically separate from facilities which house sentenced prisoners Ì and thereafter shall prevent intermingling of, and contact between, detainees and sentenced prisoners. All awaiting trial prisoners shall be removed from the present maximum security facility no later than the date the Intake Service Center is completed in December 1979.
No later than February 22, 1978 the defendants shall file with the Court their detailed plan, including dates, approved by the Governor and the Director of the Department of Corrections for reducing the population of the present maximum security facility to those prisoners who are awaiting trial, those prisoners who are being processed through Admission and Orientation and the 80 to 96 prisoners who they determine require maximum security confinement. The Special Master shall file a report on the defendants1 plan with the Court no later than March 1, 1978 and a hearing, if necessary, shall be held on the plan on March 9t 1978;"
Evidence produced for the Court's review would indicate
that the defendants have made good progress toward remodeling
the maximum security unit to provide by April 1, 1978
facilities for awaiting trial detainees "which are physically
separate from facilities which house sentenced prisoners".
After numerous extensions-' granted by the Court, the defendants
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.

(

submitted on February 22, 1978, a detailed and comprehensive plan, including dates, for the reduction of the population of the maximum security unit in accordance with subparagraph 2(a).='
The Special Master filed his memorandum in response to this plan on March 1, 1978.2/ The Court transmitted the Master's Memorandum to the Court in Response to the Defendants' "Facilities 'Draw-Down1 Plan" to all concerned parties, requesting that they submit in writing their responses and objections to the report no later than Monday, March 13, 1978. It further instructed the parties that if a hearing was not requested the Court would take under consideration adoption of the Master's findings and recommendations immediately thereafter. On March 16, 1978, defendants responded to the Master's Memorandum concerning the "facilities 'Draw-Down' Plan" over the signature of William G· Brody, Special Assistant Attorney General. There were no objections made to the Master's Memorandum, but attention was called to an acceleration of the defendants' inmate transfer process and the correction of a typographical error which mistakenly had indicated that J6 inmates instead of bO inmates would remain in the maximum security unit until the completion of the new program building at the medium security unit. These minor changes are acceptable and are to be made a matter of record as representing the defendants' current "DrawDown" plans. It is to be noted that the defendants did not request a hearing on the issue.
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c

The plaintiffs, in a memorandum dated March 17, 1978, over the signature of Robert B. I·íann, Esq., objected to the Master's Memorandum with a number of concerns as follows Î
1) The population of Medium Security would be increased without corresponding increase in program facilities.
The Master clearly stated in his memorandum on this subject that the question of program services was more appropriately an element that should be reviewed on Kay 10, 1978, when the defendants are required to have program services available for all inmates. The Court agrees with the Master's position in this matter, particularly in view of the fact that the population will not increase in medium security until December 1978, at which time additional program facilities are to be available.
2) The plan violates the Court's August 10, 1977 Order prohibiting other than minimum security prisoners being placed in dormitory settings.
The Master and numerous correctional administrators-^ who have reviewed Rhode Island's Adult Correctional Institutions find no objection to using the dormitory style of sleeping that exists in the current "Ken's Reformatory" because of the small number of inmates assigned to each dormitory unit and the increased security that has been provided. The Court agrees
r
with these recommendations and will amend subparagraph Ma)(9) accordingly.
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(

(

3) The amount of indoor exercise space at the "Men's Reformatory" is completely inadequate*
It has never been demonstrated to the Court that the exercise space at the Men's Reformatory is inadequate, but rather that the programs for exercise and recreation have been almost non-existent. The defendants will be required by Kay 10, 1978, under subparagraph 5(e)(3) "to establish recreational and avocational programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in such programs on a regular basis." The time to evaluate the defendants' progress towards this goal is more appropriate in Kay than now.
k) Defendants' plan proposes to increase the population in the Reformatory substantially, while at the same time the facilities require massive renovations to meet minimum health, safety and fire standards.
The facts presented to the Court clearly indicate that the population will increase by only 40 inmates and that will not be done until December 1978 when additional program facilities will have been completed.
The increase in population will be housed in the North . Basement or in the south end of the first floor, which was at one time the Boys Training School. The defendants are mistaken in their memorandum when they state that the North Basement was
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r

not designed to house prisoners. The original blueprints not only show that this section was designed as a dormitory complete with toilets, wash basins and showers, but the history of the building indicates that this area was used as a residential unit for many years. There will, according to the defendants, be a thorough upgrading of this area before it would be used to house prisoners in December 1978·
It is true that there are extensive electrical, plumbing and heating improvements to be made•in the building in question. All of these improvements v/ill have to be made whether the building is rated as "minimum" or "medium1* and whether it is used for 160 inmates or 200 inmates. The defendants are dangerously approaching noncompliance regarding the renovation of this building. However, the issues which are now before the Court, involve the building's custody rating and a slight increase in the resident population. The Special Master informs the Court that these changes are within acceptable correctional practice. The Court accepts his recommendations. This action in no way negates, but rather increases, . the importance of the defendants bringing the Reformatory Building within the minimum standards set forth in subparagraph
Ma).
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5) The defendants' plan to use the Reformatory is based on an estimate that no later than Kay 3» 1978 there will be only 36 prisoners in protective custody. There is no explanation in the plan for how the defendants plan to reduce the number of protective custod?/ prisoners so rapidly.
The defendants have assured the Court that the reclassification process, which will be completed by Kay 1, 1978, will allow for a new assignment of inmates which will no longer require an unusually large number in protective custody. The Master has informed the Court that the custody schedules developed by the defendants are well within what would be acceptable prison practice.
Finally, the plaintiffs, although expressing a number of concerns about the defendants* plan, did not request a hearing on the objections they made.
ORDER 7 "Defendants shall', within six months from the entry of this order bring the health care delivery system into compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island."
The health care delivery system at the Adult Correctional Institutions has been the subject of several studies and reports. Two studies were undertaken even before the Court's August 10, 1977 Crder. The first report was presented in June, 1976, by
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Dr. Richard Delia Penna, acting as a consultant for the American Correctional Association under an LEAA contract. The second report was initiated in early 1977 by HARICCtøP, Inc., a management services organization affiliated with the Hospital Association of Rhode Island (HARI). The final phase of this study was completed in December of 1977. Defendants have forwarded copies of each of these reports to the Court as background information.
Defendants* original implementation team, appointed by Governor Garrahy in response to the August 10 Order, began its approach to achieving compliance with Section 7 by reviewing "Phase I" of the HARICOMP study which had been completed in July of 1977. The Team set out to reorganize all medical services according to the study's proposals, utilizing an appropriation of $½5,OOO provided by the 1977 session of the State Legislature.
While the Team did implement major findings of the HARICOï/!P study, it soon began its own evaluation of the Department's health care delivery system by setting up a Health Care Delivery Y/ork Force. This work force implemented additional staffing changes and produced its own recommendations on January 23, 1978, which were forwarded to the Governor and to the Director of the Department.
Meanwhile, Kr. John Fournier, Medical Services Coordinator v/ithin the Department of Corrections, was asked to review the health care delivery system with,four goals in mind»

C •

C

— identification of the requirements of appropriate health care standards, referenced in the Court*s August 10 Orderj identification of those Departmental health services which were in compliance v/ith the Order;
— identification of services not in compliance; — specific requirements to achieve compliance where
services were deficient.
This comprehensive report was forwarded to the Special tøaster on December 20, l977· With the information developed in the report a comprehensive health care plan and policy manual was developed by the 'defendants and constitutes the blueprint for ACI*s health care delivery system. This plan was favorably reviewed by Mr. Richard Kiel* Chief of Health Services for the North Carolina Department of Corrections, who was retained as a consultant during January. Mr. Kiel concluded that "implementation of the health care plan . . . would provide a level of health services in keeping with Standards Developed by the American Public Health Association, the American Correctional Association and applicable standards from the Rhode Island Department of Public Health."
The Court has tv;o reservations about accepting this statement at face value. First, as Kr. Kiel himself stated, "It is evident that sufficient resources have not been made available for implementation of the plan. Thus, I cannot
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c

report that quality health care is being delivered in practicet since no satisfactory assessment of facilities, staffing, and supplies has been made." Mr. Kiel returned to Rhode Island on March l6, 17 and 18 to analyze whether the Department of Corrections' health care plan is actually being carried out. His report should be available by April 10, .1978.
Secondly, Mr. Kiel's expertise is in the field of health care administration—he is not a physician, and the Court is hesitant to evaluate defendants* compliance without advice of an independent medical consultant. The Special Master has retained a qualified physician with wide correctional experience who can evaluate defendants* health care delivery system by April 10, 1978. Until that report is received, the defendants* health care plan cannot be certified as fulfilling the Court*s August 10 Order.
Defendants were to have complied with Section 7 of the Order by February 10, 1978. As indicated above, significant progress in health care planning has been made since the August 10 Order was issued. However, the Court is unable to make a definitive finding regarding compliance without an assessment of defendants' health care delivery system in light of resources currently being applied to implement the plan.
ORDER 12
"The defendants shall, within six months from the date of this order, submit to
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(

the Master and to the Court a comprehensive report setting forth their progress in the implementation of each and every subparagraph of this order. The report shall also include a timetable for full compliance."
The defendants initially assigned the responsibility for reporting progress to the Court to the Governor's Implementation Team. The Team submitted detailed reports, at least monthly, until December. At that time, the Governor assigned the reporting responsibility to the Department of Corrections. Although monthly reports have been submitted, the Department has not complied with subparagraph 12 of the August 10 Order requiring, "a comprehensive report ^Ärithin six month§7 setting forth their progress in the implementation of each and every subrparagraph of this Order. The report shall also include a timetable ;for full compliance."
Defendants have been most cooperative in submitting whatever report the Court has requested. However, they have not to date developed an overall plan for compliance with the August 10 Order, nor have they developed a timetable for the process of achieving full compliance.
It is imperative that the Court be able to review the defendants* overall plans with projected timetables for completion. The Court should not be forced to make its decisions piecemeal, without an adequate, view toward how individual efforts fit into v/hat "should be" a grand blueprint for compliance.
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c

The Court adopts the findings of the Special Master in his memorandum to the Court in response to the Defendants* "Facilities •Draw-Down* Plan" dated Karch 1, 1978, and the findings of the Special tëaster in regard to subparagraph 7 and 12 of the August 10 Order, as set. forth in his Compliance Report to the Court dated February 10, 1973.
It is Ordered that the Court's Order filed on August 10, 1977, is modified in the following respect» Subparagraph M a ) (9) shall read as follows:
••each convicted prisoner housed in a dormitory shall have at least seventyfive square feet of personal living space and only those prisoners who have been classified as Minimum or Medium Security shall be housed in dormitories.1*
It is further Ordered that all of the defendants, as well as their subordinates, proceed at once to effectuate full compliance with subparagraphs 2(a), 7 and 12 of the August 10 Order, as modified by subsequent orders of the Court.

So Ordered.

By Order,

Enter t
/¾»litJlrUl (V
Judge
» 1978

Ùèp¿¿`/c Clerk

¿T

/

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FOOTNOTES

1/

February 3t 1978; February 22, 1978;

March 1, 1978

2/

See Appendix AÎ Defendants1 "Draw-Down" Plan

See Appendix B{ Master's Memorandum of Karen 1. 1978.

Raymond Procunier ; Gary Hill; Pat Mack; Lyle Egan; Mario Giugnino; Peter Gobel; Irving F. Robertsi Fred Stock.

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DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO v.
J. JOSEPH GARRAHY, et al. THOMAS R. ROSS
V.
J. JOSEPH GARRAHY, et al.

C. A. No. 74-172 C. A. No. 75-032

ORDER

Based largely on the late October, 1983 report of the Special Master, which described significant improvements in virtually all aspects of conditions and operations at the Rhode Island Adult Correctional Institutions (ACI) since 1977, the defendants have requested an order affirming their satisfaction of the Court's broad remedial decree of August 10, 1977 in this case. At the same time, echoing the recommendation of the Special Master, the defendants seek additionally an end to the mastership and final removal of the "shackles of direct judicial supervision."
The defendants' request is understandable. After six long years of effort on their part to transform a diseased correctional system into a reasonably healthy one, the ACI has been given a generally clean bill of health by the attending physician. Like most rehabilitated patients, who have been hounded, prodded and lectured regularly throughout their illness, the

ATTACHMENT 3 January 25, 1984 Orde

defendants want finally to be rid of their institutional "physicians" from the federal court.
To accomplish this, the defendants rely on Rule 6O(b).of the Federal Rules of Civil Procedure which permits a court to grant relief to a party from a final decree in certain specified circumstances. Citing changed, i.e., much-improved, conditions at the ACI accomplished through their arduous, good-faith efforts, the defendants urge the applicability of those provisions of FRCP 60 (b) which allow a court to grant relief when:
...(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Nowhere in their pleadings do the defendants explain which of the three separate grounds for relief contained in 60 (b) (5) they believe applicable to their cause; nowhere do they explicate their reliance on 60(b)(6). Presumably the latter reflects little more than the principle of redundant advocacy, since 60(b)(6) is inapplicable in the absence of a showing of exceptional circumstances falling outside the ambit of paragraphs 60(b)(1-5). 7 Moore's Federal Practice, 60.27/2/ (2nd Ed., 1982); Ackermann v. United States, 340 U.S. 1983, 199 (1950); DeFilippis v. United States, 567 F.2d 341, 343 (7th Cir. 1977); Lubben v. Selective Service System Local Board No. 27, 453 F.2d 645, 651 (1st Cir. 1972).
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Instead, the defendants cite the Special Master's favorable report as evidence of "changed circumstances" at the ACI and argue that, in light of those changed circumstances, it is no longer "equitable" that those provisions of the August 10, 1977 Order with which the defendants have complied should still apply. By way of explanation of their motion, the defendants cite Imprisoned Citizens' Union v. Shapp, 46. F. Supp. 522 (E.D.Pa. 1978), involving an injunction banning the use of socalled "Glass Cage" observation cells in a maximum security facility that violated the eighth amendment's proscription against cruel and unusual punishment. When the defendants later sought expungement of the ban in a pleading construed as a FRCP 60(b)(5) motion, the court found the refurbished cells to be constitutionally tolerable and concluded that ". . . it is no longer equitable that our injunction against their use have prospective application." Supra at 528.
Ironically, it is the very principle of finality that frustrates the defendants' search for a way to finalize judicial interference in their correctional system. Not unnaturally, all successful litigants look to final judicial decrees, especially injunctive ones, to stabilize and protect firmly their victories; they expect courts willingly to supervise and apply their powers and processes on behalf of continuing injunctive remedies: " . . . neither the plaintiff nor the court should be subjected to the unnecessary burden of re-establishing what has once been decided." System Federation No. 91, Railway Emp. Dept. v. Wright, 364 U.S. 642, 647 (1961).
-3-

Despite the traditional commitment to finality of judgments, both the rules of equity and the Federal Rules of Civil Proce-

dure recognize that justice occasionally requires a measure of flexibility. Thus, in very limited instances, a trial court may, in its discretion, grant relief from a final judgment. Such grants, however, are exceptional and must be guided by sound legal and equitable principles. Humble Oil and Refining Co. v.

American Oil Co., 405 F.2d 803, 812-14 (8th Cir. 1969), cert, den., 395 U.S. 905.

FRCP 60 (b)5 specifies three grounds for relief from injunctive

decrees, the first of which incorporates the term used loosely

here by the defendants ("satisfaction of judgment") to charac-

terize their entire motion. In practice, this first ground

has

rarely been resorted to and never to dissolve continu-

ing, prospective injunctions. Wright & Miller, Federal Practice and Procedure: Civil § 2863, at p. 202 (1973).

The August 10, 1977 Order in this case, however, did contain some specific mandates that were not intended to be

permanent and continuing, such as scheduled reporting requirements (paragraph 4(c) of the August 10, 1977 Order), the reclassification of prisoners (paragraph 5 (a)) and the hiring of a consultant to help design a new classification process (paragraph 5 (b)). These mandates have been fulfilled; they

have no continuing validity and the Court, pursuant to 60(b)(5), accordingly grants relief from judgment with regard to these

_4_

provisions of the remedial decree.—
The second ground for relief contained in 60(b)(5), the
reversal or vacating of a prior judgment that is the basis for
the final judgment complained of, is simply inapplicable in
this case.
Although they do not so specify, the defendants clearly
must rely on the third ground, that is, the discretionary power
of courts to provide relief from injunctions, the continuing
application of which are no longer equitable. But such relief
is not to be granted lightly, as the parameters for inquiry
identified by Justice Cardozo in United States v. Swift and Co.,
286 U.S. 106, 119 (1932) indicate:
There is need to keep in mind steadily the limits of inquiry proper to the case before us. We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse under the guise of readjusting.
The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying i_hat they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of .Litigation with the consent of all concerned,
-5-

Relief, then depends on 1) "whether the changes are so *
important that dangers, once substantial, have become attenuated to a shadow"; 2) whether the movants are suffering "extreme and unexpected" hardships; and 3) whether there has been "a clear showing of grievous wrong evoked by new and unforeseen circumstances."
The defendants' application for relief meets none of these three standards. While the Special Master reported compliance with many of the provisions of the August 10, 1977 Order, he also cautioned that "the overcrowding of facilities at the ACI jeopardizes such compliance so severely that the Court should continue to monitor the defendants' efforts to address the conditions and services involved." In his report the Special Master repeatedly cited the tenuous nature of compliance in areas such as housing, mental health, medical services and programming due to the increasing number of prisoners and static resources. In view of the substantial work that yet remains to be done to bring the defendants into full compliance with the original remedial order and the precarious nature of current compliance with many of the provisions of the order, it is not at all clear that "the dangers which the decree was meant to foreclose . . . almost have disappeared." Humble Oil and Refining Co. v. American Oil Co., supra at 813.
Even in those cases where there has been full, or relatively full, compliance with injunctive orders, courts have been reluctant to grant relief pursuant to 60 (b) (5). In Brooks v. County
-6-

School Board of Arlington County, Virginia, 324 F.2d 303, 307
(1963) the U.S. Court of Appeals for the Fourth Circuit observed:
Even as of now, it could not possibly be claimed that the record of compliance is more than two years in duration, Obedience to the injunction for so short a time is not sufficient to warrant its termination, even if we were to assume that there has been complete compliance . . .
Neither duration nor completeness of compliance provides
inherent assurance that the dangers addressed by an injunctive
order have dissipated. Sullivan v. Houston Independent School
District, 475 F. 2d 1071, 1078 (5th Cir. 1973) (denial of
relief from an order establishing school disciplinary procedures);
Goldberg v. Ross, 300 F.2d 151 (1st Cir. 1962) (reversal of a
grant of relief after eight years of compliance); Walling v.
Harnischfeger Corporation, 242 F.2d 712, 713 (7th Cir. 1957)
(defendant's request for relief rejected after 12 years of
compliance).
The defendants here, moreover, have made absolutely no
showing of any "extreme and unexpected" hardship or "grievous
wrong" encountered by them as a result of the injunctions they
seek to dissolve. The burden for such a showing rests squarely
on the defendants:
A continuing injunction directed to events to come is subject always to adaptation as events may shape the need. (Citations omitted.) ...In either event (after litigation or by consent), a court does not abdicate its power to revoke or modify its mandate, if satisfied that what it
-7-

has been doing has been turned through changing circumstances into an instrument of wrong"! (Emphasis added). United States v. Swift & Co., supra at
TTT.
In the absence of any demonstration by the defendants of
the hardship or wrong inflicted by application of the August
10, 1977 Order, this court is obligated to deny the defendants'
motion for •relief from the provisions of that order with prospec-
tive application. In a recent review of a similarly complex
prison suit, the United States Court of Appeals for the Tenth
Circuit dealt thoughtfully and at length with the difficulties
of implementing institutional, correctional remedies and affirmed
unequivocally the need for the continued involvement of courts
extending beyond the point of compliance:
We believe that the court, in exercising continuing jurisdiction to achieve structural reform, cannot terminate its jurisdiction until it has eliminated the constitutional violation "root and branch" See Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed. 2d 716 (1968). The court must exercise supervisory power over the matter until it can say with assurance that the unconstitutional practices have been discontinued and that there is no reasonable expectation that unconstitutional practices will recur.
Battle v. Anderson, 7O8_E.2d 1523, 538 (10th Cir. 1983). -'
The Court, then, denies the defendants' motion for satis-
faction of judgment except in those limited areas noted earlier
and listed in the order below. The effect of this denial is to
-8-

continue the Court's jurisdiction over all of those prospective remedial provisions of the August 10, 1977 Order with which the Special Master has found the defendants to be in compliance. In addition, the Court shall adopt the recommendations of the Special Master and direct the defendants to carry out a list of as yet unfinished tasks.
This does not, however, resolve all of the issues raised in the defendants' motion, which also sought a dissolution of the mastership, as recommended by the Special Master in his October report. This Court concurs with the plaintiffs' reaction to the suggestion of the Special Master's departure: "He has counseled all of us wisely and has enabled the parties to move from confrontation to negotiation on many occasions and the plaintiffs are reluctant to see his mastership terminated." Plaintiffs' Objections to the Special Master's Final Report, at p. 6.
During the past six years the Court has come to rely absolutely on the Special Master's expertise and mediating skills. His quiet competence and ready ability to defuse conflicts have prevented innumerable confrontations between parties and between the Court and parties. Repeatedly he has rescued all of us from the rash effects of actions prompted alternately by despair, frustration and anger with his calm and patient ability to generate mutually acceptable solutions to apparent impasse. His assistance has been invaluable and, I believe, one of the chief and critical components in the defendants' compliance with much of the August 10, 1977 Order.
-9-

But the Court is also sensitive to the extraordinary nature
— and cost — of the mastership as a judicially imposed remedy.
The Special Master reports substantial compliance with the Court's order and declares candidly that his monitoring efforts are no longer required. For all of that, the list of tasks yet to be accomplished by the defendants is not insubstantial; the initial actions of the defendants in moving to apply and expend the funds realized as a result of the November, 1983 passage of a bond referendum to renovate the old Maximum Security facility are a source of concern to the Court; and overcrowding and budgetary pressures on the defendants are more likely to increase than dissipate during the next few years. Given these conflicting needs and circumstances, the Court elects to terminate immediately the operations of the Special Master and to suspend, rather than vacate, the order of reference creating the mastership. At six-month intervals until the completion of all unaccomplished tasks enumerated below, the Court will confer with the parties to determine whether there is a need to reactivate the mastership. The Court also reserves the right to reinstitute the mastership should the Court judge it to be so necessary.
It is the order, judgment and decree of this Court that: 1. Defendants' motion for satisfaction of judgment is granted relative to paragraphs 4(c), 5(a) and 5 (b) of the August 10, 1977 Order.
-10-

2. Defendants' motion for satisfaction of judgment relative to other provisions of the August 10, 1977 Order is denied. The Court will return jurisdiction over all of these other elements of the remedial order at least until such time as the defendants are in full compliance with all of the requirements of the original order and its progeny.
3. The defendants shall be required to carry out the following specific tasks to comply fully with the August 10, 1977 Order:
a. Resolve expeditiously the future of the old Maximum Security facility in accordance with existing deadlines relative to planning for the facility's renovation (see the Court's Order in this regard of November 21, 198 3);
b. Provide meaningful programming for pretrial detainees in the Intake Services Center, especially for those whose stay at the detention facility exceeds 4 5 days;
c. Provide meaningful vocational programming opportunities in each facility of the ACI;
d. Increase industrial programming throughout the ACI, particularly in the High Security Center, Maximum Security and Medium Security;
e. Expand mental health and medical services to keep pace with population increases;
-11-

f. Reduce the number of protective custody prisoners in B-Dormitory in Medium Security or develop other protective custody housing and increase the number of jobs available for protective custody t)risoners.
g. Reduce the number of prisoners in Medium Security or begin planning to increase the availability of medium-custody bedspace at the ACI through conversion or construction. 4. By April 1, 1984 the defendants shall provide the Court and plaintiffs with detailed plans for the accomplishment of all of these tasks. The defendants' plan shall call for completion of all of these tasks (with the exception of renovation of the old Maximum Security facility, which will proceed on its independent timetable) within 18 months or by July 1, 1985. In addition, the defendants shall provide the Court with a report on their progress in accomplishing these tasks every three months. See the attached Memorandum, which contains a breakdown of all applicable deadlines in this case. This memorandum is incorporated into and made part of this order. 5. The Special Master shall terminate immediately his duties. Further operation of the order of reference appointing the Special Master is suspended. At six*ínonth intervals, the Court shall confer with the parties to determine whether an independent progress report by the Special Master is required.
By Order,
'f
Enter;

FOOTNOTES

1/

The plaintiffs suggest that paragraph 5(c) of the

¯¯

August 10, 1977 Order, which requires the defend-

ants to establish a classification process that

includes interviews with prisoners and based

decisions on specific categories of data, might

also be declared satisfied. The Court disagrees.

The elements defined in paragraph 5(c) as essential

for an equitable, efficient classification system

were intended to have prospective, continuing ap-

plication, unlike the one-time hiring of a classi-

fication consultant or an immediate reclassifica-

tion of the whole ACI population.

2/

The procedural context in Battle differs from this

case. In Battle, the defendants were appealing

an order of the district court retaining jurisdic-

tion and imposing additional planning and reporting

requirements even though the system was in com-

pliance with the original remedial order. There

was no application there for relief from judgment

pursuant to FRCP 60(b)(5) with its own specific

and strict standards. Nonetheless, the concerns

and fears expressed in the Battle opinion are

shared by this Court in this case.

-13-

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO

V. J. JOSEPH GARRAHY, ET AL

C.A. 74-172

THOMAS R. ROSS
V. J. JOSEPH GARRAHY, ET AL

C.A. 75-032

ORDER

On January 25, 1984, the Court entered a comprehensive

order which inter alia detailed the progress made by the defendants

in complying with the Court's remedial decree of August 10, 1977 and

which set forth certain further compliance requirements and

reporting and compliance deadlines. The defendants have continued

their compliance efforts since January 25, 1984 and have

periodically reported on same to the Court and to the plaintiffs.

On September 25, 1984, a status conference was held in

chambers at which time the defendants and plaintiffs reported on the

status of renovations at the Old Maximum Security facility and where

the Court also had the benefit of the views of plaintiffs'

environmental health expert as well as several of defendants'

experts and the plaintiffs expert, Theodore Gordon, has now filed

with the Court a written report of his inspection of the Maximum

Security facility.

» ¯

At the September 25, 1984 status conference, the defendants

also made oral motions to amend existing compliance and reporting

deadlines, which motions were not opposed by the plaintiffs, and

ATTACHMENT 4 November 19, 1984 Ore

which the Court will grant in light of the substantial compliance efforts made by the defendants. The Court believes it is now appropriate to incorporate all the existing remedial requirements for compliance with the August 10, 1977 order into one new order and the parties have agreed to its terms at the status conference.
It is the order, judgement and decree of this Court that: ` 1. The defendants1 motion to extend their time to complete the renovations attih'e'oldMaximum Security facility to June 1, 1985 and to thereafter continue to use the facility for the housing of prisoners indefinitely' so long as they maintain that facility in compliance with the minimum standards set forth in the August 10, 1977 order, is granted provided, however, that the defendants incorporate in their renovation and operating plans for this facility the recommendations of the environmental health expert with respect to kitchen waste disposal, kitchen ventilation, food service staff training and general preventative maintenance. Furthermore, the June 1, 1985 deadline for the completion of renovations will not apply to the Industries Building. A report detailing the status of these renovations shall be filed with the Court and plaintiffs by July 1, 1985.
2. The defendants shall be required to carry out the following other specific tasks to comply fully with the August 10, 1977 order:
a. Provide meaningful programming for pretrial detainees in the Intake Services Center, especially for those whose stay at the detention facility exceeds 45 days by July 1, 1985;
2.

b. Provide meaningful vocational programming opportunities in each facility of the ACI by July 1, 1985;
c. Increase industrial programming throughout the ACI, particularly in the High Security Center, Maximum Security and Medium Security by July 1, 1985;
d. Expand mental health and medical services to keep pace with population increases;
e. Reduce the number of protection custody prisoners in B-Dormitory in Medium Security or develop other protective custody housing and increase the number of jobs available for protective custody prisoners by July 1,. 1985.
f. Reduce the number of prisoners in Medium Security or begin planning to increase the availability of medium-custody bedspace at the ACI through conversion or construction by July 1, 1985.
3. By November 15, 1984, the defendants shall provide the Court and plaintiffs with a formal report which details all plans, either in place or prospective, together with funding sources for the accomplishment of the tasks set forth in paragraph 2, above. In addition, the defendants shall provide the Court and plaintiffs with formal progress reports on accomplishing these tasks on February 15, 1985, May 15, 1985 and August 1, 1985.
3.

Enter:
Senior Judge November í'`¯ 1984

By Order, *vf Clerk

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., )

)

v.

)

)

J. JOSEPH GARRAHY, et al.,

)

)

THOMAS R. ROSS, et al.,

)

)

v.

)

)

C.A. No. 74-172 C.A. No. 75-032

J. JOSEPH GARRAHY, et al.

)

ORDER

There are two motions pending in this case, one to

maintain a ceiling of 250 on the population of the Intake

Services Center (ISC) for pretrial detainees in the Rhode

Island Adult Correctional Institutions (ACI>, the other for a

continuation of a population cap of 268 in Medium Security

until the completion of a new facility in November, 1989. In

addition, the Court entered an order on June 9, 1987, which

gave the defendants until August 1, 1987 to reduce the

population of the ISC to 250 or be liable for a daily fine of

$3,000 for any subsequent excess. A conference was held among

all of the parties on July 8, 1987 to consider these pending

matters and work out, if possible, a formula to resolve the

issues underlying these various motions and order.

Because the Court's continuing intervention in the ACI

must be keyed not to numbers but to the conditions that in

their totality violate the constitutional rights of prisoners,

ATTACHMENT 5 July 28, 1987 Order

the parties agreed to the necessity of developing a system of
review that focuses primarily on conditions. This focus on
conditions, however, should not obscure the Court's experience
in the long history of this case, which illustrates clearly
that excessive numbers lead almost ineluctably to the rapid
deterioration of conditions.
In fact, of course, this Court's ruling on the ISC's
unconstitutionality last year was based on a thorough
evaluation of conditions. In conferences and in a
December, 1985 hearing, it was made obvious that conditions in
the ISC relating to safety and security, medical and mental
health services, food services and sanitation and programming
were all unacceptable. In my May 12, 1986 Opinion and Order,
the defendants were found to be in violation not just of
earlier Court orders but also, more importantly, of the
Constitution:
Under the new case law, to be unconstitutional the double celling and overcrowding must impact on the basic health and safety of the inmates so as to constitute cruel and unusual punishment in violation of the Eight Amendment....
The situation here is not merely one of pure numbers. I do not look at the overcrowding in a vacuum. The experts chronicled the problems of extensive confinement: high levels of frustrations and irritation, increased assaults, high levels of idleness, serious environmental, health and maintenance problems, over-extended staff, and dangerous mental and medical health practices, all of which were linked to and exacerbated by the overcrowding. Palmiqiano v. Garrahv. 639 F.Supp 244, 257 (D.R.I. 1986).
- 2-

As a result, I ordered gradual reduction of the ISC's population and simultaneously directed the defendants to remedy inadequate conditions, while-preserving for them the opportunity to return to the Court and argue that improved conditions warranted a halt to further population reductions. Hence, the pending motion to hold the population cap at the ISC to 250.
The defendants' difficulties recently have been further compounded by their inability to hold the ISC population even to 250. Since May of this year, they have regularly exceeded that number. They are currently rushing to refashion part of an Institute for Mental Health (IMH) facility, the Pinel Building, to provide housing for up to 30 additional pretrial detainees, an effort expected to be completed by August 1, 1987. While the population pressures of May and early June have eased somewhat, it is clear that the population cap of 250 for the ISC will be difficult, if not impossible, to maintain in the future. Meanwhile, there has been substantial amelioration of conditions at the ISC since the December, 1985 hearing that documented the deplorable conditions referred to in my May, 1986 opinion. When the defendants returned in early 1987 to seek a freeze of the population at 250, they were able to argue that most of the conditions cited as offensive in 1985 had been
- 3-

substantially improved. In the most recent hearing on the plaintiffs' objections to a freeze on the population cap at 250, the plaintiffs focused solely on medical and mental health services/ while conceding that other conditions at the ISC generally met applicable orders and standards.
At that May hearing, however, a number of inadequacies in mental health and medical care were identified. Some of the deficiencies were conceded by the defendants and others contested. In the July 8 conference of parties, the defendants contended that they had met all of the plaintiffs' relevant criticisms of medical services and mental health care. They went on to argue that, even when the number of pretrial detainees confined in the ISC exceeded 250, the totality of conditions of confinement comported with constitutional standards and met all applicable orders of the Court.
To resolve these outstanding issues relative to the ISC some determination of the current state of medical and mental health services is needed, as well as a system for monitoring future conditions in the facility in the face of a potentially expansive population.
The situation with regard to Medium Security is not greatly different. In the original August 10, 1977 Order in this case, the defendants were required to reduce the population of Medium Security to 222. Today, just two weeks
- 4-

shy of the tenth anniversary of that order, the population of the facility remains at 260 to 270 prisoners. Based on the defendants' adamant representations in a June 1986 conference that a protective custody facility would be constructed and ready for occupancy within a year, thereby permitting the reduction of the Medium Security population by about a hundred prisoners, I ordered the defendants to reduce the population of Medium Security to 222 by June, 1987, and, meanwhile, allowed them to retain that facility's population at 268.
No protective custody facility was built; no prisoners, protective custody or otherwise, have been removed from Medium Security. Instead, the defendants returned to Court in late June, 1987 to file a motion to retain the 268 population ceiling until November, 1989, by which time they pledge a new Medium Security will be complete. Meanwhile, the defendants argue, they have made Medium Security a constitutional facility, even with 268 prisoners by improving staffing, programming, maintenance and health services.
The troubles at Medium Security differ substantially from those at the ISC in one important aspect. There exists, at least, a plan to build a new Medium Security facility and the funds to do so. While the delays associated with getting the facility actually built are frustrating, eventually a new building will be constructed and available. No such denouement is promised for the ISC, for whose expansion there are neither
- 5-

plans nor money. Thus, any formula developed now to keep a finger on the pulse of conditions at the ISC can be expected to be needed for, at least, the next five or six years. To meet the need to fashion a monitoring framework for conditions in the ISC and the Medium Security, it is hereby
Ordered A. The In·take Service Center (ISC)
The Special Master shall make arrangements immediately for an expert, independent review of medical services and mental health care in the ISC to assess the defendants' compliance with applicable orders and standards, with special attention to those issues raised during the May 22 and 23 hearing. Any deficiencies identified for the Court by the neutral expert shall be addressed and remedied by the defendants within 30 days. At that point, the population ceiling of 250 shall be lifted.
If the defendants fail to remedy reported deficiencies within the time specified, the population cap shall revert to 250, and the defendants shall be required to show cause why they should not be held in contempt.
Thereafter, at six-month intervals, a monitoring team consisting of three members (one with expertise in correctional medical services, one in jail/prison operations and one in correctional environmental and sanitation matters) will review conditions at the ISC. If, however, prior to this scheduled
- 6-

semi-annual review, the population of the ISC should exceed a

monthly average of 265 detainees for two consecutive months,

—

«—,

.

—

_

_

_

—

_

' —

¯

•

—

the outside review shall be accelerated and conducted

_—.—,

immediately^ Whatever causes the review, the review team shall

conduct its inspection and report to the Court whatever

deficiencies of compliance with applicable orders and standards

it may find, together with a schedule for their remedy within a

fixed period of time. The defendants' failure to remedy

deficiencies shall precipitate a court hearing that shall

result in a reduction of the population ceiling to 250 and may

result in other appropriate sanctions. A similar inspection

and report by the three-member monitoring team shall be

required immediately if the ISC population exceeds a monthly

average of 280 detainees for two consecutive months, and

thereafter, each time the average monthly population for two

consecutive months grows by an increment of ten additional

detainees (thus, when the population hits 290, 300).

Following each such review, if the defendants fail to

remedy reported deficiencies within the time specified, the

population cap shall revert to 250, and the defendants shall be

required to show cause why they should not be held in contempt.

Whenever the defendants trigger an independent review

by exceeding one of the indicated population measures, the

following semi-annual monitoring shall be rescheduled to occur

- 7-

six months later. The purpose here is to reduce the number of redundant inspections when possible. Medium Security
In conjunction with the immediate review of medical services and mental health care conducted at the ISC, the full three-member team shall conduct a broader review of all conditions at Medium Security. The standards for this review shall be compliance with all outstanding orders of the court and various standards applied thereunder. The defendants shall be required to remedy any deficiencies reported to the Court by the monitoring team within 30 days or within a time frame identified by the review team as reasonable.
If the defendants fail to remedy the deficiencies reported as a result of the review, they shall be required to show cause why they should not be held in contempt for violation of existing Court orders. The Court, moreover, shall consider immediate reduction of the population of the Medium Security to 222, the number originally called for in the August 10, 1977 Order.
Thereafter, the review team shall inspect Medium Security every six months to ensure that conditions continue to comply with applicable orders and standards. A failure on the defendants' part to meet these orders and standards or to remedy the deficiencies identified by the team within a reasonable period shall result in the issuance of a show cause order.
- 8-

The defendants shall also complete the new Medium Security facility and occupy it by no later than November 1, 1989.
This order supercedes all existing orders relative to population in Medium Security and the ISC and specifically rescinds the Court's Order of June 9, 1987.
Also, because the overcrowding of ISC and Medium Security infringes on the medical and mental health services available in all ACI facilities, the monitoring team shall consider in each inspection such impact on the overall medical and mental health care provided throughout the ACI.
By Order,

Enter:

kaJr <>» oJ&

Senior Judge July 73 . 1987

- 9-

FOOTNOTE
1. Among general issues raised in the May 22 and 23 hearing which should be addressed by the independent medical/correctional expert, are the following:
• Staffing (medical, dental, nursing, mental health)
• Internal quality assurance system • Administrative, central management of the health
care delivery system • Emergency plans • Procedures and protocol
Specific issues include: • A tracking system for the chronically ill • Physical examinations on intake • First aid kits • Dispensation and control of psychtropic
medicines (stop-orders) • An on-site EKG • Suicide prevention plans and programs • On-site IV solutions

IN THE UNITED STATES DISTRICT COURT , FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al. VS.
J. JOSEPH GARRAHY, et al. THOMAS R. ROSS, et al.
VS. J. JOSEPH GARRAHY, et al.

C. A. NO. 74-172 C. A. NO. 75-032

ORDER On Tuesday, September 22, 1987 the Court presided over a chambers conference to review the posture of the inmate population and medical services at the Intake Service Center. The following parties attended: J. Michael Keating, Jr., Esquire, Special Master; Alvin Eronstein, Esquire, for the Plaintiffs; John J. Moran, Director, David W. Dugan, Esquire, Special Assistant Attorney General, George M. Cappello, Esquire, Associate Director Legal Services, John Biafore, Esquire, Legal Counsel to the Governor, Joseph J. Reilly, Deputy Director of Policy, Governor's Office, A. T. Wall, Assistant Director, Policy and Development, Jeffrey Laurie, Deputy Assistant Director, Rehabilitation Services, and Joseph DiNitto, Assistant to the Director, for the Defendants. The Court made inquiry into the recent growth of the population and delivery of medical care at the Intake Service Center and elicited responses from the respective parties. Thereupon, the Court requested that the Defendants formulate a written plan which will address reduction of the population at the Intake Service Center on an immediate and long-term basis. The Court also instructed the

ATTACHMENT 6 October 6, 1987 Order

Defendants to respond to the findings and recoininendations of Armand H. Start, M.D., the Court appointed medical expert. Therewith, it is hereby
ORDERED 1. Defendants shall submit a written plan to the Court by no later than October 20, 1987 which will reduce the population at the Intake Service Cente_r from its present population of 311. The plan must specifically address the opening of the Pinnel Building to house, if necessary, up to sixty (60) awaiting trial inmates as well as Defendants' long-range structure (capital development program) to deal with the escalating population at the Intake Service Center. 2. Defendants shall implement the following recommendations of Armand H. Start, M.D., the Court appointed medical expert, within thirty (30) days of this Order:
a. Develop emergency plans and instructions and initiate emergency drills.
b. Develop an in-service program for clinical health care staff on suicide prevention and rewrite suicide policy.
c. Make provisions for on-site IV solutions. 3. Defendants shall advise the Court in writing on or before October 20, 1987 of the status of Dr. Start's recommenda-
i
tions to be implemented by December 1, 1987, namely: a. Hire people to fill approved positions and systemize their employment.
-2-

b. Design and implement a quality assurance program.
c. Develop institution-specific procedures
and protocols. d. Design and implement a tracking system
for the chronically ill. e. Perform intake physicals as required. 4. Defendants shall provide on a monthly basis inmate population reports reflecting the daily population figures for the Intake Service Center as existed during said month. A copy of this report will be mailed to Alvin J. Bronstein, Esquire and this Court. 5. A conference is hereby scheduled for Wednesday, October 28, 1987 at 3:00 p.m. to review the status of the within issues.

By Order,

Enter:

^ Deputy Clerk

L
U.S. district Judge October 6, 1987

-3-

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et al., v.
J. JOSEPH GARRAHY, et al.

C.A. No. 74-172

THOMAS R. ROSS, et al., v.
J. JOSEPH GARRAHY, et al.

C.A. No. 75-032

ORDER On Wednesday, October 28, 1987 the Court conducted a chambers conference to review the Defendants' Initiatives to Reduce the Inmate Population at the Intake Service Center submitted to the Court on October 20, 1987. The following parties were in attendance: J. Michael Keating, Jr., Esquire, Special Master; Alvin J. Bronstein, Esquire, for the Plaintiffs; John J. Moran, Director of Corrections, David W. Dugan, Esquire, Special Assistant Attorney General, John Biafore, Esquire, Legal Counsel to the Governor, Joseph J. Reilly, Deputy Director of Policy, Governor's Office, A.T. Wall, Assistant Director, Policy and Development, Jeffrey Laurie, Deputy Assistant Director, Rehabilitation Services, Joseph DiNitto, Assistant to the Director, George M. Cappello, Esquire, Associate Director, Legal Services for the Defendants. The Court requested that the parties present respond to the Defendants' plan to reduce population at the Intake Service

ATTACHMENT 7 December 16, 19 87 Order

2 Center. The Court acknowledged that the problem of escalating inmate population was indeed a difficult one to address and
correct and indicated its willingness to be realistic in light of
the efforts of the Governor of the State of Rhode Island and Director of Corrections to correct the undesirable situation at the Intake Service Center. Thereupon and by and with the consent and agreement of all parties present, the Court
ORDERED 1. Effective Wednesday, October 28, 1987, and continuing until January 1, 1988, the present ceiling shall be lifted to permit double celling at the Intake Service Center to allow a total inmate population of 336 at this facility.
2. On January 1, 1988, Defendants shall make available sixty (60) beds at the Pinel Building (ISC Annex) at which time the inmate population ceiling at the Intake Service Center shall be reduced to 276.
3. On March 1, 1988, Defendants shall make available thirty (30) additional beds [for a total of ninety (90) beds] at the Pinel Building (ISC Annex) at which time the population ceiling at the Intake Service Center shall be reduced to 250.
4. Notwithstanding the population ceilings set forth in this order, the defendants shall make a good faith effort to keep the population as low as possible and limit double celling as much as possible.
5. On or before April 1, 1988, the State shall present to

3

the Court a concrete plan incorporating future initiatives to

reduce the population level at the Intake Service Center.

6. The Court-appointed experts shall conduct a review of

the conditions at the Intake Service Center after January lƒ 1988 to determine if constitutional standards are being met for the

population at that time.

,

7. After a review of the experts' reports, by all parties,

the Court shall determine whether an evidentiary hearing will be

required.

8. Failure to comply with this Order shall result in heavy

and substantial monetary sanctions against the defendants.

By Order,

Deputy¯Clerk

Enter«-¿ $Y

 
 INITED STATES DISTRICT COURT FCR THE DISTRICT OF RHODE ISLAÎN£>

NICHCU¾3 A. FALMIGIAND, e t a l .

APR ` 1989

v.

EDWARD DiFF-ETE, e t a l .

¯¤ =

o =

THCMAS R. ROSS, e t a l .

E =
<l
> •
oš
c •

II
¡¯=oZoo

v. EDWARD DiPF£TE. e t a l .

•§j
ro

so

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C.A.¯M¿: 74-172 P C.A. No. 75H332 P SYLLABU5*

On Qct cöer 21. l`=G3, the united States D i s t r i c t C:ourt for tha D i s t r i c t of F)·¯icde Island fcctnd defendants. G?\'ernc3r Edward DiPrete and Jc<·in J .
, Director of the Fhcde Island Department of Corro:tions, in ccntenpt of court for their f a i l u r e to bring the Intake Service Center CISC), an Adult Corre:tional I n s t i t u t i o n s ¢ACI) f a c i l i t y , i n t o compliance with certain standing court orders: the prc+¯iibition against housing p r e - t r i a l

detainees in dormitories, the l i m i t a t i o n en dcuble¯¯celling any p r e - t r i a l detainee for more than t h i r t y days, and the population cap of 25(3 persons at the 131:. In i t s Opinicn and Order, t h i s Court re:ounted in voluminc«-is detail the 5Drry history of overcrowding at the 191: and of defendants' re>;alcitrance i n f a i l i n g to make, over more than f i v e `s<=3.r<5. any

meaningful e f f o r t s to address the prcòlen unless ordered to so by the Court. In l i g h t of t h i s history of chronic intransigence, which then <?nd now shocks the conscience of t h i s Court, defendants were ordered to bring

the I K into compliance by February 20, l ¾ 5 . Failing t h i s , fines would accrue at the rate of $53 per day for each person held in the ISC in excess of the 25Q peculation l i m i t .

*·>-¡is syiìaùLis ccrsstitutes no par- of rhs cginicn of the Court but ¦`,s.s J-U O been prepared f^or the ccnvenience of the reader.

The defendants filed a plan en December 33, 1938 arid a report en February 21, 1953 in which they proposed numerous i n i t i a t i v e s ¯co reduce the 191: population. As eviden·:ed by their plans, defendants emphasized a long-term, system-wide approach, instead of focusing en the emergency nature of the overcrowding c r i s i s and the necessity of effertino immediate relief. The Court admonished defendants that, "At t h i s stage in the c r i s i s , nothing will suffice to satisfy the October 21. 1989 Order of t h i s Court except an immediate reduction of the population at the I.S.C......," and urged them to seek short-term solutions to the overcrowding problem. Defendants implemented few of the proposed i n i t i a t i v e s before the February 2Q deadline and the steps that were taken failed to effect the cc<_trt-ordered reduction of the ISC population to comply with the cap of 233. As a result, defendants failed to. purge themselves of contempt by February 20 nc>r did they purge themselves of contempt by March 13, when a compliance hearing was held.
Since i t would be unjust, however, to sanction defendants for ncn-ccmpliance if compliance i s beyond their power, the Court considers the question of whether i t i s factually impossible for defendants to comply with the Court's orders. The Court finds, that based on the numercus steps that defendants admit could have been taken as many as four years ago and are being taken now, compliance-is and has been within defendants' power. The Court acknowledges that defendants are now proceeding with commendable speed to resolve the overcrowding c r i s i s at the ISC. Indeed, for the first time since t h i s Court issued an order to cease overcrowding at the ISC in January 19S4, the exe:utive branch of State government i s exercising i t s power to create the innovative array of confinement options needed. However, the defendants' efforts, a
107

last-minute flurry of activity en the eve of the compliance deadline, have not succeeded in bringing the ISC: into compliance with the orders of this Court. Indeed, not only have defendants failed to reduce the population of the ISC, but the s t a t i s t i c s reveal that the overcrowding c r i s i s continues to worsen. The population of the I9` pushes inexorably upward: the facility, with a design capacity of 168 and a population cap of 230, held 473 persons en March 26. Held:
1. Defendants DiFrete and Mrran have failed to purge themselves of contempt and therefore the fines that have accrued since February 20, 193S, at the ra¯e of £32 per day for each person held in the I9` in excess of the 250 population limit, Are levied against defendants.
2. Defendants must provide to the Department of Corrections $164,253 of the accumulated fines within 15 calendar days of the effective date of t h i s Order, which will be used to finance an Emergency Overcrowding Relief Fund to provide bail for indigent pre-trial detainees.
3. Payment of the balance of the fines, accrued from March 14 to the effective date of t h i s Order, shall be suspended unless and until such monies are needed to effectuate the orders of. t h i s Court.
4. The Department of Corrections will begin to provide bail for indigent pre-trial detainees within 33 calendar days of the effective date of this Order and shall make every effort to bail as many individuals as possible with the funds available.
5. The accrual of new fines will be suspended for six months from the effective date of this Order, at which time a compliance hearing
108

will be held. Curing t h i s pericd, the Court experts that defendants will implement their proposed i n i t i a t i v e s to bring the 132 into compliance with the Court's standing orders with all due 6. The execution of t h i s Order i s stayed pending appeal.
09

UNITED STATES DISTRICT C¤LRT FTJR THE DISTRICT OF RH¤CE ISLAMD

NICHOLAS A. PALMIGIANO, e t a l .

>

)

v.

)

)

EDWARD DiFR£TE, e t a l .

)

R. ROSS, e t a l .

)

)

v.

)

)

EDWARD DiPRETE, e t a l .

)

C.A. No. 74-172 P C.A. No. 75-032 P

OPINION AfO OREO?

PETTINE, Senior D i s t r i c t Judge.

In t h i s Court's Order of October

21, 1'5QÖ, * ciüi endants, Governor Edward DiPrete and John J. Moran, Director of the Rhode Island Department of Corrections, were found to be i n contempt of court for having failed to comply with certain provisions contained in standing orders of t h i s Court regarding the conditions of confinement at the State's Adult Correctional Instituticos (hereinafter "ACI"!>: the prohibition against housing p r e - t r i a l detainees in dormitories, the l i m i t a t i o n on double-celling any p r e - t r i a l detainee for more than t h i r t y days, and the population cap of 250 persons at the Intake Service Center* (hereinafter "IS^"), t h i s last having been entered with the ccnsent of the parties. Defendants were ordered to f i l e with the Court by November 21, l'=Q8 a specific and detailed plan, to be approved by the Court, which would ensure compliance with the enumerated provisions.

••The Court's Opinion and Order i s reported as Palmiqiano v. DiPrete. 700

F.Supp. 1180 (D.R.I. lSQS>. Familiarity with t h i s cpinion i s assumed.

*The 131: was designed to house l£S persons - p r e - t r i a l detainees and

newly—ccnvicted offenders, the l a t t e r referred t o as "admission and

orientation" inmates (hereinafter "A*<O inmates"".). As long ago as l'=S5,

corrections o f f i c i a l s made plans to transfer these Aî·<¤ inmates as a way of

dealing with overcrowding at the 191;. Because of crowding in the ACI's

f a c i l i t i e s for sentenced inmates, however, the ISC has continued to hcuse

A&0 inmates. Thus the severe overcrowding at the ISC has two ccopcnents -

growing populations of both p r e - t r i a l detainees and AS<O inmates.

-t -i (\

me Court further ordered that the defendants might purge themselves of contempt by implementing, by February 20, 19B9, their plan t o cc«mply with the standing orders. Finally, the Court ordered that, if defendants failed to f i l e a plan with the Court by November 21, 1938 or if they failed t o bring the 191: into compliance with the court orders by February 23, 1989, fines would accrue at the r a t e of ¢50 per day for each person held in the 131: in excess of the 25¤ population limit. I . Ff!Q'FFDIt\)3S SINCE ¯Tl·E DCTŒeR ORDER
A. The December l·988 Plan Shortly before the l\bvember 19SS filing deadline, defendants
requested an extension of time within which to f i l e the plan. By agreement of the p a r t i e s , the deadline for submission was extended to December 33, 193S, en which date the plan was filed.
The plan, entitled "State of F·hcde Island's I n i t i a t i v e s to F·sduce the Inmate Population at the Intake Service Center" (hereinafter the "December Plan") outlined fourteen steps being considered by defendants and in various stages of development: some under consideration, several in the planning stage, others currently operating and one already rejected as not feasible. Of the fourteen i n i t i a t i v e s presented, three involved
111

f a c i l i t i e s construction and renovation projects,3 two involved proposals
to increase staff,"* five were program development projects,51 two
ío:used en the release of sentenced inmates,s one (already rejected as
infeasible!> was to relieve the e=pe:ially severe overcrowding experienced
at the 191; en weekends,~ and the last involved a population planning
study and develcpment of a computerized population projection model for
the Department of Corrections.
Taken as a whole, these i n i t i a t i v e s were designed t o comprise what
defendants termed "a system-wide approach...to reducing the overcrowding
at the ISC." As defendants explained:
This approach includes expansion of options for the sentenced population as well as programs for the awaiting t r i a l population. These options w i l l create additional bedspace throughout the ACI and w i l l also f a c i l i t a t e discharge of appropriate inmates frc<n i n s t i t u t i o n a l confinement. In the case of the sentenced population, the chain reaction w i l l reach a l l
*Construction and renovation projects proposed were the conversion of a building formerly used by the Department of Mental Health, Retardation and W:>spitals into a new work release f a c i l i t y , the Bernadette Work Release Center; emergency construction and renovation at the maximum, medium, minimum, and work release faclitic?s, funded out of the State's Asset Protection Fund; and capital development projects at the ISC and maximum, medium and industries buildings, funded by the State's Public Buildings Authority. "•Increases i n core and maintenance staff at the ACI and in the staffs of probation and parole were proposed. =New programs proposed t o be developed were a hc<ne confinement program, a hal fway house prcçjram, and a substance abuse treatment program. In addition, a J a i l Based Notification Program (hereinafter "JE¢\P"), specifically designed to reduce the length of 'confinement of persons awaiting t r i a l through an array of services, was already operating with one staff person, and a ne*> Pretrial Services Unit was proposed to expand the size and scope of the JEf`F¯. sDefendantsf December Plan included a proposal to increase the frequency of Parole Board meetings and a proposal to submit emergency early release legislation to the legislature. •^Defendants had fret with members of the state judiciary to· explore the p o s s i b i l i t y of i n s t i t u t i n g weekend court sessions to speed the movement of detainees through the 191:. B;<*»ever, even before the submission of the E"=ce¯nber Plan, the judiciary had rejected t h i s idea as expensive and icgistically impracticable.
112

the way back to the I SI:. . . . In the awaiting t r i a l context, programs and planning are under way to address the size of Cthe] pretnal population.
December Plan, p. 3.
Viewed in terms of their potential to effect the court-ordered
reduction in pcpulaticn at the 191: by the February 20, 1933 deadline, only
cne of the proposed i n i t i a t i v e s , the removal of sentenced CA&O) prisoners
from the ISC as a consequence of the cpening of a new work release
f a c i l i t y at the ACI, was touted by defendants as being able quickly to
bring the conditions of confinement at the ISC into compliance.
Describing the significance of the proposed Bernadette Work F:elease
C`·enter,s defendarits exp 1 ai ned:
The opening of the Bernadette Building by February 15, 1939 w i l l provide immediate bedspace for up to 225 inmates. This additional capacity w i l l enable the Department to remove .from the ISI: the newly-sentenced inmates who have been held there for lack of bedspace elsewhere. Assuming that the p r e t r i a l pcpulaticn remains at the current level, these i n i t i a t i v e s w i l l enable the Department to eliminate the use of dormitories for p r e t r i a l inmates and the double c e l l i n g of inmates held Icnger than t h i r t y days... .This a c t i v i t y w i l l place the ISI: in close proximity to a pcpulaticn level of 250.
December Plan, pp. 29-<tt3.
Of the remaining i n i t i a t i v e s , only four3 were intended to impact
d i r e c t l y the number of p r e - t r i a l detainees held in the ISI: and ncne were
offered as being able to reduce the ISI: pcpulaticn to 250 by the February
1939 deadline. For example, although the J a i l Based Notification Unit was
operating at the time the December Plan was f i l e d , and was in fact the
The Governor, by Executive Order N:¡. S3—15, had transferred the Bernadette Building from the Department of Mental Health, Retardation ar.G hospitals to the Department of Corrections on December 19, 1983. °A.s noted above, another prcposal to i n s t i t u t e weekend court in order to speed the movement of detainees through the ISI: was moot by the time the
Plan was submitted.
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cnly initiative aimed at reducing the 132 population actually in operation at the time of the plan's submission, i t was staffed with cnly one person. Further, while defendants planned to expand these activities by creating an ACI Pretrial Services Unit staffed by three persons, this plan was not intended to be implemented until "as seen as possible after the beginning of the next fiscal year" - in other words, at some unspecified time after July 1, 1989. Similarly, the other two proposed initiatives directed at reducing the pre-trial population were far from fruition. A planned 192-bed expansion of the ISC, approved in the spring of 1988 by the Fublic Euildings Authority, was stalled pending the approval of the Cranston City Council. Further, defenaants' "Timetable for Emergency Construction and Renovaticn Prcçjrams" appended to the December Plan showed that sven in a best case scenario, if the architecture and engineering contracts were awarded en January 13, 1989, occupancy of the new area could not begin until February 1991. Finally, a proposed management study, designed to lead to the development of a computerized population projection model to assist with predicting and planning for growth in Fhcde Island's prison, probation, and parole populations, was not predicted to be completed until so<netime in 19S9.
B. The January 1989 Chambers Conference
This Court expressed i t s reaction to the defendants' plan, by letter to the defendants dated January 23, 1969, thusly:
Although I find the comprehensive, approach outlined in the plan to be very laudable..., I also find that the proposals as they now stand appear to do l i t t l e to alleviate the immediate overcrowding c r i s i s at the I.S.C. At t h i s stage in t h i s c r i s i s , nothing will suffice to satisfy the October 21, 1933 Order of this Court except a.n immediate reduction of the population at the I.S.C
114

Cn January 31, 1989, the Court held a chambers conference to review the defendants' plan and to discuss exactly what defendants were doing to reduce the pre-trial detainee population by the ccurt-ordered deadline of February 20, 1389. Throughout the conference, the Court stressed that defendants must supplement their 1 cog—term i n i t i a t i v e s with short-term emergency measures designed to bring about an immediate reduction in the ISI·¯ population. As a result of the parties' agreement at the conference, the Court entered an order on February 13 allowing the defendants to proceed immediately to house 200-225 work-release inmates in the incompletely renovated Bernadette Building, provided that the building complied with specified safety regulations and that all sentenced <A‰O>. inmates were removed from the Intake Service Center by February 21, 1989. Furthermore, defendants were ordered to file a report with the Court by February 21, 1989 apprising the Court of the progress of their i n i t i a t i v e s to reduce the 191; population and identifying whatever i n i t i a t i v e s they would implement within the next three to six months to further reduce the
I9C population. C. The February 1989 Report Defendants did file the follow-up report on February 21, entitled
"Defendants' Continuing Initiatives to Reduce the Penal Inmate Population at the Intake Service Center" (.hereinafter the "February Report"), which reviewed defendants' prcçress toward implementing six of the fourteen projects originally proposed and announced one entirely new i n i t i a t i v e .
The Report first documented the opening of the Bernadette Work Release Center, to which 172 work-release inmates had been transferred cn February 15, and further reported that the opening of this facility "has
115

permitted the Department to r©:lassify and transfer inmates throughout the system in order to provide space for sentenced inmates who were being held at the Intake Service Center." Indeed the opening of the E¾rnadette Building had enabled the Department to remove 127 inmates from the 191: between February 15 and February IS and consequently to reduce somewhat the population of the facility. While there had been 476 people housed at the 191: (337 pre-trial detainees and 139 sentenced persons') en February 14, there were 390 per<Dle housed there on February 20 (343 pre-trial detainees and '47 sentenced persons).
With regard to the other projects first unveiled in the December Flan, defendants reported that legislation had been introduced :n the F}¯icde Island General Assembly to establish home confinement as an alternative to incarceration or detention at the AC I not only for sentenced inmates but also for awaiting t r i a l detainees unable to pest cash bail of $5,203 or i t s equivalents within 48 hours of s.rraignment and accused of ncn-violent or ncn-drug-related crimes. In addition, a Request for Fropc<sals to administer the program had been published en February 5, 1939, as was a Request for Proposals to implement and administer a halfway house for sentenced inmates. Although the tentative contract date for both projects was set for May 1, 1989, the Report demurred that "such necessary preliminaries as the enactment of suitable legislation, the acquisition of a s i t e for the halfway house, equipment for electronic monitoring and staff for both programs will no doubt delay the ability o·f vendors to begin actual implementation for several months beyond this date." Third, the funding of the proposed emergency construction and renovation proje;ts with monies from the State's Asset Protection Func had
116

been approved, and an Invitatico for Letters of Interest had been extenaed to architectural and engineering firms en Fsàrusry 21, 1399. Finally, consultants were scheduled to negin work en the proposed management study en March £, I9£?9, with September 6, l¯=G9 as the target date for completion of t h i s study. Data pertaining to both the detainee and sentenced pcpulaticns was being computerized, and t h i s computerized data base would enable the development of a population projection model for the Department sometime in the summer of 1339.
The February Report also announced a brand-new i n i t i a t i v e , Project Bail, a F5·ï·:de Island not-for-profit corporation whose mission wculd be to oversee the design and implementation of « bail fund to serve the awaiting t r i a l population. The February Report explained that the non-profit corporation wculd contract with a service provider to administer a program to identify that portion of the awaiting t r i a l population (hereinafter the "Target Group" !> eligible for the program, provide bail for thc>se in the Target Group, supervise them to assure their attendance at t r i a l , and u t i l i z e existing community resources to enable the bailed Target Group members to be employed, functioning citizens. The Report stated that, "Preliminary estimates indicate that up to 60 Target Group members will participate in the program at any one time." The Board of Directors was to raise the needed pool of capital from Rhode Island businesses and individuals and from lo·:al and national foundations. The Report stated that no public funds wculd be used for the capital, but that the State of Fî-¯icde Island, through the Department of Corrections, wculd provide operational funds. According to the Report, Governor DiFrete had asked
that Project Bail pro·:eed on an accelerated timetable so as to be fully irrclerT>=nted within six to seven rr>:nth=.
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D. The March V3S3 Compliance Hearing A carpiiance hearing was held en l`ìarch 13f 1933. At the hearing,
p l a i n t i f f s intreduced population reports, from February 23 through March 5, showing that the ISC population had exceeded 250 on each day in that period, sometimes by as many as 156 persons. P l a i n t i f f s also presented one witness, A.T. U a l l , Assistant Director for Policy and Development in the Department of Corre;ticns since 1337. Wall was questioned as to whether certain of the defendants' proposed i n i t i a t i v e s t o reduce overcrowding at the 131: could have been implemented one or two years ago. Testimony of A.T. Wall, Compliance Hearing Tr. 22-27. Wall stated that the actions regarding the bail fund could have been taken ona t o two years ago; that the home ccnfinement. l e g i s l a t i o n could have been introduced one t o two years ago; that the Requests for Proposals for home ccnfina¯nent and halfway house programs could have been issued two years ago assuming that there were funds available to operate the programs; and that money for the emergency ccnstructicn and renovation projects could have been sought from
the State's Asset F`rote:ticn Fund one t o two years ago, but that funding could have been obtained frc<n that source only i f those monies were not already encumbered. Finally, although Wall stated that the planned management study would not have been possible two years earlier because the Department of Corre:ticns did not have a cc<Tputerized data base at that time, he also admitted that i t was possible for the Department to have acquired the computerized data base i t s e l f as many as three or four years ago.
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Defendants countered with the testimony of two witnesses, Jctin

r·"oran, Director of the Department of Corrections, and Sarah Dowling, Chief

of F·olicy for Governor DiF`rete. Director h:>ran, while admitting that the

State had not succeeded in reducing the population at the 132 to 250 or in

refraining from housing pre-trial detainees in dormitory settings by the

February 1983 deadline, nevertheless described in detail the efforts that

had been made by the Governor's Office and the Department of Corrections

to achieve compliance with t h i s Court's Order of October 198S. horan

spoke about the opening of the Bernadette Euilding and i t s impact en the

ISC population; other emergency construction and renovation to bs

undertaken to add additional space for the sentenced population; efforts

to plan and fund Project Bail, the halfway house program and the home

confinement program; and the progress of the management study. He further

stated that no progress had been made en the permanent 132—bed expansion

of the 191: or the construction of a new $30 million medium security

facility because the projects, funded as they are with Fublic Buildings

Authority monies, require the approval of local officials which had not

been granted as of the date of the hearing. Having thus reviewed the

S t a t e ' s efforts, Director l*tøran concluded that, in the four months from

October 21, 1988 to February 20, 1989, "there were no other options"

available to the Department of Corrections to reduce the ISC population to

253, keeping in mind considerations of public safety and the safety of the

prison. Testimony o>f J. M:iran, Compliance Hearing Tr. 51.

On cross-exa/nination, however, Director t`¯tor<=n admitted that some of

the i n i t i a t i v e s undertaken in the feur-menth period - the hems confinement

.and hal fu`ay house programs - could have been undertaken four years ago.

¿.-,d that Frc.;e:r Bail could have been initiated two years ago. Testirr>:ny

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119

of j . r^ran, Compliance Hearing TV. 55. 63. Mr>ran refused to concede, however, that certain other i n i t i a t i v e s cculd have Deen undertaken four years ago, arguing that uncoligated Asset Frot©:ticn Fund rronies were not necessarily available to be allocated to emergency construction projects at the prison fcur years ago and that the Bernadette Euilding cculd not have been transferred to the Department of Corrections fcur years ago because i t was s t i l l being used by the Department of Mental Health, Retardation and Hospitals. Testimony of J. lioran, Compliance Hearing Tr. 55. He also insisted that the expansion of the 131: did not need to be undertaken fcur years ago because, "The need, I don't believe, was there fcur years ago. I don't believe the numbers were as overwhelming as they are today." Testimony of J. l``toran, Compliance Hearing Tr. 57. However, ftoran conceded that conditions had grown serious two years ago and that i t was possible to seek funds for the permanent expansion of the I SI: at that time. Testimony of J. í*V;<ran, Compliance Hearing Tr. 57-59.
Dowling, who has been Chief of Policy enly since February 1, 1939, was questioned only about the most recent progress toward accomplishing certain of the State i n i t i a t i v e s . With regard to the home confinement legislation, Dewling stated that she had personally reviewed the legislation and that i t had been introduced prior to the February 16, 1989 deadline for the introduction of legislation this term. Testimony c>f £. Dowlingf Compliance Hearing Tr. 64. Turning to the bail fund, she reported that she also had recruited personally the members of the first Bc`ard of Directors and had attended the organizational meetings
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120

of t h s group. S·ie seated t h a t she a n t i c i p a t e d t h a t t h e b a i l fund would be fully operational within six months. Testimony of S. Dowling, Compliance l·b·=rm; Jr. 64-67. F i n a l l y , with regard to the expansion of the 191:, she s t a t e d t h a t . because of t h e continuing problems of securing local approval of t h e p r o j e c t , t h e G:·vernor had i n s t r u c t e d her t o "pursue other avenues of financing of t h e prison p r o j e c t s . " Testimony of S. Dowling, Compliance Hearing Tr. 69. Dowling's testimony emphasized that the Governor has, s i n c e t h e October 1983 Order, made dealing with t h e overcrowding problem "his highest p r i o r i t y " and had i n s t r u c t e d h i s senior staff "to proceed with a l l due speed and t o resolve t h i s problem." Testimony of S. Dowling, Corei i ance Hear ing Tr. 73. I I . IfFOSITION OF SANCTIONS UNDER THE CETOEER 1908 CONTEMPT CFEGP.
A. F a i l u r e of S t a t e Defendants t o Purge Themselves of Contempt Based on the evidence adduced at t h e March 13, 19S9 cc<npliance
hearing, t h e r e can be no dcubt t h a t t h e s t a t e defendants, Edward DiPrete, Governor of Fl-icde Island, and Jchn J . f`"V:rran, Director of t h e R-icde Island Department of Corrections, have f a i l e d t o purge themselves of contempt by bringing t h e 131: i n t o compliance, by February 20, V3Q3, with the standing o r d e r s of t h i s Court governing t h e c c n d i t i c n s of confinement of p r e - t r i a l d e t a i n e e s at t h e ACI.
Although defendants did succeed in f i l i n g a plan with t h e Court by December 33, l'¾38, t h i s plan was, in t h e main, a long-range plan designed t o address t h e growing need for a d d i t i o n a l space throughout t h e ACI and was not t h e "specific and d e t a i l e d plan" t h a t t h i s Court ordered defendants t o c r a f t t o "ensure t h a t t h e population of the present l £ 8 - c e l i IS^ will be maintained at no more than 250 persons, that dormitory housing

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of detainees will cease, end that no detainee will be double—celled for
.Tore than t h i r t y days." F'almiciano. 703 F. 5upp. at 1199. See generally
State of Fhode Island's Initatives to Reduce the Inmate Population at the
Intake Service Center, December 33, 19S3. Indeed, rather than proposing
emergency steps that could be taken immediately to reduce the 191:
population to a level below the cap of 250, the heart of the plan was a
combination of 1 cog-range construction and renovation projects and
alternative sentencing programs designed to relocate or reduce the
sentenced population of the ACI, which would in turn enable officials to
fl¯ove sentenced prisoners housed in the I9C into space then made available
in the other ACI f a c i l i t i e s , thereby ultimately resulting in.a reduction
of the number of persons housed in the ISC.xa> Thus, in the final
analysis, only five11 of the thirteen i n i t i a t i v e s presented as viable
in the December Plan were designed to impact directly the pre-trial
detainee population at the ISC:, and of these five, only one, the opening
of the Bernadette Work Release Center, was held cut as being able to
effect the court-ordered population reduction by the February deadline.
ltsAs recounted above, defendants, in their introduction to the December Plan, took the position that "a system-wide approach" is "the key to reducing the overcrowding at the 191:." W·¯>ile t h i s Court has no quarrel with defendants' long-range plan, and in fact finds i t laudable, the truth i s that defendants are today confronted with an overcrowding c r i s i s that demands that emergency measures be taken even as defendants simultaneously work to implement more permanent solutions. !``i:·thing less than an immediate reduction in the 191: population will suffice. 11As noted above, chief among these was the opening of the Bernadette Building. In addition, the Jail Based Notification Program appeared to be having i t s maximum possible impact on the 191: population given i t s staff of one. The third, the ACI Pretrial Services Unit, was essentially an expansion of the JE¢\F, to be implemented sometime after July 1, 1'3S9. T·~o others, the 132-bed expansion of the 191: and a program of planning and data-gathering a c t i v i t i e s •were d e a r l y long—range projects. A sixth, weekend court, was determined not to be a viable option.
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Uhile defendants did report, en February 21, 1333, that they had
sun piemen ted the December Flan with an aaditicnal i n i t i a t i v e aesigned to reduce directly the pre-trial population,1= enly one of the many
initiatives being pursued, the opening of the Bernadette Work Release
Center, was able to be implemented before the February 23, 1333 deadline
for compliance. And although the Bernadette Building was opened as
planned in February 1383, by February 20th this i n i t i a t i v e had already had
i t s greatest impact on the population of the I3C, yet had failed to
accomplish the predicted reduction to bring the pcpulatien level near the
cap. Testimony of A.T. Wall, Compliance Hearing Tr. 28-31; Testimony of
J. Ftoran, Compliance Hearing Tr. 45. Accordingly, at the carpi lance
hearing, defendants were forced to admit that the conditions of
confinement at the 132 continued to violate the orders of this Court in
that the population of the 132 i s chronically and substantially over the cap of 25013 and pre-trial detainees are routinely housed in dormitories
carved cut of former program areas, among them the 191: library. Testimony
of Jchn J. t`>Dran, Compliance Hearing Tr. 44, 61-62.
In light of the facts cutlined above, this Court can only conclude
that defendants have persisted in continuing violations of i t s orders
regarding the housing of pre-trial detainees at the 191: and that these 13:In the three weeks before the February 20, 1SQ9 compliance deadline, Governor DiPrete announced the creaticn of Project Bail, "a public/private partnership to reduce prison overcrowding." In addition, a b i l l to establish the classification of home confinement for both sentenced inmates and pre-trial detainees was introduced to the Rhode Island General Assembly. 13Qn February 23, 19S3, the date set for conpliance, the pcpulation of the ISC: was at 293, 140 persons over the cap. On March 2S, 13S3, the most recent figures available to this Court, the population steed at 473, `~'~'?· persons over the cap. At no time since the deadline has the 192 population dipped below 383, or 133 persons above the cap.
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viol at i ens have been substantial. Because i t would be unjust, however, to sanction defendants for non-compliance i f compliance i s beyend their power, I chc·:<se here to re;cnsider carefully the questien of whether i t is factually impossible for defendants to carpiy with t h i s Court's orders before turning to the question of whether defendants' failure to purge themselves of contempt new warrants the impositico of sanctions.
B. Possibility of Compliance As t h i s Court made clear in i t s Cpinicn and Order of October 21,
1333, and reiterated at the March 13, 1939 ccmpliance hearing, the cnly defense able to rescue defendants from the imposition of contempt sanctions m t h i s case i s that of factual impossibility. See general 1 y Palmiqiano. 700 r.Supp. at 1196^98; Compliance Hearing Tr. 7&-80. The crux of the impossibility defense i s , of course, a lack of pc«¿er to carry cut the orders of a court due to circumstances beyend one's control. Lack of power in the contempt context means a l i t e r a l i n a b i l i t y to take the steps necessary to comply with a j u d i c i a l order or consent decree, not simply an unwillingness to take action because the cent amor perceives the steps that actually can be taken, as p o l i t i c a l l y costly or ideologically repugnant. See Twelve John Dees v. D i s t r i c t of Columbia, S55 F.2d 874, 877-7S (D.C.Cir. 1983) (impossibility defense inapposite where D i s t r i c t of Columbia had not dene " a l l within i t s power" to avert prison overcrowding); Badqley v. Santacroce. 833 F.2d 33, 3£-3S C2d Cir. l98£.¯', cert, denied. 473 U.S. 1067, 107 S.Ct. 955,. '53 L.Ed.2d 1033 ¢I9Q7)
(impossibility defense inapposite where county defendants' compliance is hindered by p o l i t i c a l d i f f i c u l t i e s rather than physical impossibilities^'; United States v. State of Michigan, 693 F.S_ipp. ¯?28, 1C53 CW.D.Mich, l;37)
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(impossibility defense inapposite where state prison o f f i c i a l s , cc<rmissi oners of corr©:ticns and Governor had five steps that they ccuìtake within their lawful authority to maintain uncrowded conditions at the Consent Decree i n s t i t u t i o n s ) . See also Twelve John Dees v. District of Columbia, SSI F.2d 2'35, 303 (D.C.Cir. 13GS) (citing with approval ruling previously made in Twelve John D:es I. 855 F.2d at 878. that " p o l i t i c a l obstacles do not reach the lack of power due to circumstances beyond one's control ne:essary to constitute an impossibility defense"). In addition, in the context of prison overcrowding l i t i g a t i o n , impossibility has been interpreted by federal courts that have had occasion to consider the issue as inapplicable to cases where a party is presently unaaie to comply because i t refused, at some earlier time when compliance was within i t s power, to exercise i t s lawful authority. See Twelve John Dees I, 355 F.2d at 37£-7S (significant increase in the number of inmates in the system i s neither unforeseen nor unforeseeable and dees not prevent D i s t r i c t of Columbia from complying with population cap where District was for years aware of endemic overcrowding and did not take steps along the way
adequate to address the problem); Tate v. Frey. £73 F.Supp. 330, 832 CW.D.Ky. 1937) (where state defendants had a wel1-developed research unit and had commissioned expert pro.je:tions of inmate populations, substantial increase in state prison population over six—year period did not excuse ncn-ccmpliance with ecurt-ordered pcpulaticn cap despite legislature's f a i l u r e to authorise sufficient beds in which to house the growing criminal population and legislature's passage of statute mandating high security classification for certain prisoners). Against t h i s legal backdrop, then, t h i s Court w i l l once again consider whether: (1) the st-~.¯ce

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defendants in t h i s action have the requisite legal authority to carry cut the orders of t h i s Court with respect to overcrowding at the I SI:; <:2'.` there are any unanticipated circumstances beyond these defencants' centred that make compliance l i t e r a l l y impossible; and (3) there are any steps at all that defendants can take that would bring them into compliance.
1. Leoal Authority to Reduce I9C Population
This Ccurt need not belabor the obvious fact that, in Rhode Island, the executive branch of state government, through i t s Department of Corrertions, has legal responsibility for all matters relating to the operations of the state prison system. See generally R.I. Gen. Laws Sec. 42-5S-1 et seq. (1972 I. 1334 Rsenactmta-it). The Department's legal authority broadly encompasses " . . . t h e custody, care, discipline, training, treatment and study of persons committed to state correctional institutions or en probation or p a r o l e . . . . " R.I. Gen. Laws See. 42-56-1 (4) Cb) C1972 S< 1934 Reenactment.>. In addition, the discretionary authority of the Director of the Department of Corrections includes the power to undertake certain functions directly relevant to the overcrowding c r i s i s at the ISC, specifically to:
<!aj designate, establish, maintain, and administer such state correctional facilties as he deems necessary...;.
<b!> maintain security, safety, end order at all state correctional facilities...;
<q) establish and maintain programs of research, s t a t i s t i c s , and planning, and conduct studies relating to correctional programs and responsibilities of the department;
(rj u t i l i z e , as far as practicable, the services and resources of specialized community agencies and other local community groups in the development of programs...;
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t.s) make and enter into any contracts and agreements ne:essary or irici dental to the per for mane <= of ths duties and exe:ution of the powers of the department, including but not limited to contracts to render services to conYTiitted offenders...
F:.I. Gsn. Laws Sec. 42-5£-lØ <I97£ S< 1994 Reenactment). I t is thus
entirely correct for t h i s Court to hold the executive branch of Rhode
Island state government accountable for implementing court orders
regarding the conditions of confinement at state penal i n s t i t u t i o n s operating under i t s legal authority.1* Cf. Pinto v. Nettleship. 737
F.2d 133, 132-33 <:ist Cir. 1984) (where Puerto Rican law delegated
authority to manage the prisons to the Puerto Rican Corre:tions
(=iüi¯nini s t r a t i en, responsibility for taking steps to relieve prison
overcrowding and provide sufficient number of guards did not rest en local
prison administrator).
2. Unanticipated Circumstances Beyond Defendants' Control
Throughout t h i s most recent round of l i t i g a t i o n , defendants have
implied that the overcrowding at the 191: was, in e f f e c t , unforeseen and
unforeseeable, being linked to a r i s e of 17.97. in the Rhode Island prison
population frc<n December 31, 1937 t o June 33, 198S. December Plan, pp.
1-2. Indeed, defendants' position, as articulated by Director h:>ran at
the March 13, 1993 hearing, seems to be that there was no need to expand
the ISC or otherwise address the overcrowding-problem at the f a c i l i t y four
years ago because the situation only recently rose to the level of an
"emergency." Testimony of J . t`Vrran, Compliance Hearing Tr. 55-57. 1 "•Defendants argue that they lack plenary-power to appropriate funds or enact legislation relevant to relieving prison overcrowding. To the extenr that such steps are ne:essary to address the present c r i s i s , t h i s Court simply cannot accept an analysis that portrays the Rhode Island executive and the Rhode Island legislature as "two warring sovereignties," nor allow Rhode I si arid government's "inter se problems... Cto3 excuse Cits] legal cc<Tïr,itments. " Twel ve J·zhn Does 11, 3¿l F.2d at 2?5-303.
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Defendants' attempt to portray the problems at the 132 as being of recent vintage shocks the sensibilities of this Ccurt. Only five mcnths ago, this Court recounted in voluminous detail the sorry history of overcrowding at the 191: and of defendants' recalcitrance in failing to make any meaningful efforts to address the problem unless ordered to do so by the Court. Palmiqiano, 703 F.Supp. 1133, 1183-90. The unccntrovertible facts are that the ISC has been over i t s design capacity from i t s very first day of occupancy in 1932; that by 1933, the ISC population had reached 250; that defendants witnessed explosive growth in the I3I-¯ population as lcng ago as 1985, when the population expanded by an alarming 32/í over i t s 1983 level of 250; that defendants have been ordered repeatedly to address the chrcoic and sericus overcrowding problem at the I9I,· í=s that despite such orders defendants have regularly and for a substantial period of time been in violation of the cctirt-ordered population ceiling at the ISC (Testimony of J. M:<ran, Compliance Hearing Tr. 57); and that defendant Comrnissicner has admitted in the past that but
for the orders of t h i s Court no meaningful pregress would have been made to address the prison's problems (Testimony of J. fbran, Compliance Hearing Tr. 60-61). That overcrowding has become an issue at all ACI f a c i l i t i e s in recent months, and that i t may worsen in the near future at the 13; and other ACI f a c i l i t i e s because of the effe:ts of the passage in the Novenber 1938 general election of a referendum denying bail to persons accused of certain categories of offenses,1* sre clearly beside the
1=TÌTÌS Court explicitly ordered defendants to reduce the population at the 133 in January 1984, May 198S, October 1997 and October 1939. iefieferendum Questicn 1. F¯rcpositicn to Amend Article 1, Secticn 9 of the Fl·>ode Island Constitution - Right to Bail (Joint Resolution 262), Ntovember S, 1938.
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point. This Court simpiy fails to grasp the lcgic by which a prcòlem recognized for years is rendered unanticipated because it has worsened. If anything, these facts suoport the conclusion, arrived at reluctantly by this Court, that defendants have been intrasigsnt in failing to institute, five years or three years or even cne year ago, careful long-term solutions to the prcòlem. In short, given the years-lcng duration of overcrowding at the 191: and this Court's frequent admonitions to defendants to address the prcòlem, I simply cannot find today that defendants are excused frc<n compliance with the court-ordered population cap at the ISC: by unforeseen circumstances beyond their centred.
2. Steos Able to Effect Compliance
Regardless of the foreseeability of the recent increases in the size of the prison population in Rhode Island, impossibility would s t i l l •be available to them as a defense if there i s l i t e r a l l y nothing that defendants can do now to come to grips with the overcrowding problem. Looking to federal court precedent for guidance in evaluating t h i s final element of the defense, this Court notes that in each case the presiding court was careful to review the record in the case and make detailed findings of fact as to whether there were specific steps that defendants had the power to take that would bring them into compliance.1^ ¿vneng the steps found to be available to state actors in other prison overcrowding cases involving a colorable claim of impossibility10 are: 17¯In adjudging proposed solutions to prison overcrowding viable, federal courts have evaluated those steps in the light of such case—spe:ifie
factcrs as the duration of the litigation and the frequency of plaintiffs' resort to the courts, the particular sub-group of the prison peculation implicated in the overcrowding and the particular state actors named as defendants, paying close attenticn to the scope of their authority. 1QTwelve Jcnn Dees I. 855 F.2d at 877-78; Badslev. 800 F.2d at 37; Tate. £72 F.Supp. st SS2; State of Michigan. 693 F.Supp. at l&49-33.
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1. the constructien of new priscc¡ facilities;
2. the creation of halfway house programs and/or the expansion of space in existing facilities:
3. the enactment of a Frison Overcrowding Emergency F'c'*ers
Act empowering the executive branch to declare a state of emergency and release these prisoners held in excess-of court-ordered ceilings;
4. declining to accept new prisoners until peculation caps sre met; and
5. applying to other authorities for an alternate place of confinement.
As in the precedent en which we now rely, the record in this
case similarly shows that defendants DiFrete and t^:>ran a.re not without
steps that they can take to relieve the overcrowding problem at the ISI·.
As detailed in Defendants' Continuing Initiatives to Reduce the Penal
Innate Population at the Intake Ser`-'ice Center, February 21, 1389, and
corroborated and updated at the March 13, 1933 compliance hearing,
defendants have actually taken, since being held in contempt en October
21, l¾33, the following myriad specific steps to reduce the 191:
population:
1. promulgated an emergency order transferring the Bernadette Building to the Department of Corrections for use as an additional work release facility, which led in turn to an institutico-wide transfer of prisoners that netted the transfer of 127 sentenced inmates cut of the I3l:;
2. incorporated Froje:t Bail, a not-for-profit corporation created to establish a bail fund for pre-trial detainees in the State of Rhode Island, appointed i t s first Board of Directors and initiated organizational meetings of the group;
3. introduced legislation into the I33¯3 session of the Fhcds Island General Assembly to establish the classification of home confinement for certain categories of pre-trial detainees and sentenced inmates;
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4. cc<¯nmitted funds for the current fiscal year to developing alternatives to incarceration for the prisoner population, in the amount of $770,033 for hc<na confinement services and $485,033 for a halfway hcuse program;
5. requested and received proposals frc<n service providers interested in managing hcme confinement and halfway hcuse programs for the State;
£. allocated $15 milliicn in Asset Protection Funds for emergency construction and renovation projects at the ACI, including renovations to the ISC, solicited l e t t e r s of interest from architectural and engineering services, and forwarded to the Department of Administration a short l i s t of six architectural firms;
7. hired consultants to study how the Department of Corrections can best meet the challenge of i t s growing prisoner population (the management study) and began the process of forming working committees to act upon the stuay's re:c<Tìmendaticns upon their receipt in August 1985; and
S. codified data en both pre-trial detainees and sentenced inmates needed to develop a computer—assisted population projection model for the Department.
In addition, testimony offered at the March 13th hearing established that
the Governor has also instructed his staff to pursue other sources of
funding to expedite the $l£.2 million 192-bed expansion of the ISC
approved in spring 1938, but since stalled by the State's inability to
secure local permissions for the project as required by the Public
Buildings Authority, the current source of the projert's funds. Testimony
of S. Dealing, Compliance Hearing Tr. 69, 74.
Clearly the record in t h i s case shows' that defendants are at
long last proceeding with ccflvnendable speed to resolve the overcrowding
c r i s i s at the 191:. The cc<nmitment by the Governor of funds1"3 and
1<3This commitment amounts to an impressive 23.87. increase in the budget of the Department of Corrections ever the last fiscal year. Testimony of S. Dowling, Compliance Hearing Tr. S7-6S.
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personnel to the problem's solution indicates a seriousness c`f purpose en ÷l¯e part of the defendants never before witnessed by t h i s Court thrcuahcut the iong histc·ry of t h i s l i t i g a t i o n . Indeed, for the f i r s t tima since t h i s Court issued an order to cease overcrowding at the 191: m January 1954. the executive branch of State government i s exercising i t s power to create the innovative array of confinement options needed.
Despite, however, the respe:t I feel for defendants' re:ent e f f o r t s to reduce the ISI¯ population, I cannot ignore the fact that t h i s f l u r r y of a c t i v i t y has come too late t o bring defendants i n t o compliance with the orders of t h i s Court. Indeed, not only have defendants never succeeded in reducing the population of the 1SZ- belc<w the population cap of 250 or in ceasing to house p r e - t r i a l detainees in dormitories (Testimony of J. t†z>rari, Compliance Bearing Tr. £l-S2>, but as of March 2S, 1993, the last date for which t h i s Court has population s t a t i s t i c s , the number of individuals housed in the IS2 steed at 473, twenty-three more than the previous high of 450 reached i n October 19SS when the Court f i r s t
f e l t compelled to hold defendants in contempt in order to avert disaster in a f a c i l i t y then being operated at more than 2507. of i t s design capacity and 807. above the agreed upon population cap. More t o the point, the steps that defendants have taken since being held in contempt in October 1939 are, by their c<jn admission, steps that could have been taken years ago when overcrowding f i r s t be;ame chronic at the ISC (see generally Transcript of the March 13, 1939 Compliance Hearing)3* - and should have been taken in response t o the repeated orders of t h i s Court. This Court ^Defendant Moran has been the Director of the Department of Corrections since 1378, defendant DiFrete the Governor of the State of Rhode Island since 1935.
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i= baffled that defendants did not begin systematically implementing nej
construction projects, alternative housing options, bail fun a activities
and pcpulaticr, projectien models years ago - before overcrowing at the
ISC reached the c r i s i s proportions of today.=1 In light of the many
steps available to defendants, and the many years that this Court has
given defendants to undertake such steps, I can only find today that
compliance with the orders of this Court has long been within defendants'
power and i s not a factual impossibility.
Finally, of the steps now being taken by defendants, i t i s clear
to t h i s Court that at least one of them, Project Bail, used in ceo .junction
with the opening of the E-srnacecte Euilding, had the potential to effect
an immediate reduction of the 191: population to at or near the cap within
the time for compliance.22 'ssa While the long-range planning that
defendants are now beginning to undertake i s laudable, the fact remains
21This Court notes with displeasure that much of what has re;ently been dene by defendants to effect reductions in the ISI: population was dene in the last three weeks before the February 1939 compliance hearing. Testimony of S. D:>wling, Compliance Hearing Tr. 63-70. This eleventh hour response by defendants corroborates t h i s Court's firm conviction that only the threat of ccercive sanctions has motivated the parties to exercise their lawful authority and act to resolve the overctrceding c r i s i s . =According to uncontradicted testimony at the cconpliance hearing, 427. of the pre-trial population en any given day is being held for want of $5,0(20 cash bail (or i t s equivalents) or less. Testimony of A.T. Wall, Cc<rpliance Hearing Tr. 19. Assuming a pre-trial population of 450, t h i s would mean lS¯3 candidates for release through a bail fund that targeted indigent detainees and a potential reduction of the pre-trial population to 2£l. With 14*3 housed in the ISI` Annex, 120 detainees would be housed in the 191: itself, with enough room for the current A‰G population of 125. ^*ln addition, a second step originally proposed by defendants-but later inexplicably abandoned, the introduction of emergency release legislation, could also have provided defendants with a potent tool for ensuring ch a daily basis that the 191: i= operating in compliance with the cap. Testimony of A.T. Wall, Compliance Hearing Tr. 13-14. Whatever defendants' reasons for deciding not to pursue this approach, this Court notes that this step is possible and has been the solution of choice in other C'vercrowding oases. See Twelve John Dees I. 855 F.2d at S77-7S.
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that t h i s Ucurt has ordered an immediate reducticn in the I SI: population. The dangerous condition of overcrowding at the I SI: demands that defendants act now and not await the eventual solution premised by their long-term, =ystem-wide approach. Since there i s at least cne step which, if pursued vigorously beginning in O:tcòer 19S3, cculd have brcught defendants into compliance by the February 1393 deadline, I can enly reiterate that compliance with the orders of t h i s Court i s and has been within defendants' pc«¿er and non-compliance cannot now be excused.
C. The Coercive Sanctions On October 21, 198S, t h i s Court ordered that, if defendants failed
co bring the ISI: into compliance with the stariding court orders by February 20, 1993, fines wculd accrue at the rate of $50 per day for each person held in the ISC in excess of the 250 population limit. Based en . the population reports provided by defendants and on testimony at the March 13 hearing, i t i s uncentroverted that the ISC has not been brought into compliance with these orders. Additionally, t h i s Court i s satisfied that compliance i s , and for at least two years has been, within deferidants' power. Accordingly, the Court must new levy the fines set in D:tcòer.
The Supreme O:urt has recognized that sanctions for civil contempt may be employed "for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." United States v. Lhited Mine Workers, 330 U.S. 252, 333-&4, £7 S.Ct. £77, 7Q1, 91 L.Ed. 334 (1947). The fines imposed here s,re coercive in nature. In this context, "the court. . .must consider the character and magnitude of the harm threatened by continued contumacy,
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c»¯d the probable effectiveness of any suggested sancticn in bringing about ¯;he result desired." îú. at 3O4, £7 S.Ct. at 701. In structuring this order, these factors have been for emc-st in my mind. I therefore impose the threatened fines at this time in order to avert impending disaster at the critically, overcrowded 191: and to advance the goal of bringing the facility into compliance with the standing orders. Specifically, daily fines began accruing en February 20, 1989 and have continued accruing to the date of this Order. The total amount of fines thus accrued exceeds $289,000.=* Father than simply levying these fines, however, I am taking the further step of directing that a portion of the n>:nies be applied directly to the task of effecting an immediate reduction in the population of the ISC:.
A federal ccurt may, in the exercise of i t s equitable power, order that fines i t has imposed as sanctions for civil contempt be used to remedy the problem underlying the contempt finding. See Local 28 v. EEQC, 478 U.S. 421, lØ£ S.Ct. 3019, '92 L.Ed.2d 344 (1986) (approving district court's order that $150,000 fine be used to finance a fund designed to increase nonwhite membership in apprenticeship program and unicn, where district court had found that petitioners, unicn and apprenticeship cc<rmittee, discriminated against nenwhite workers and had held petitioners in ccntempt for failure to comply with ccurt-ordered affirmative actien program). This power has also been explicitly recognized in the First Circuit in Cabrera v. Municipality of Bayamcn, £22 F.2d 4 CI9S3). In Cabrera, the district court had imposed fines against a municipality
Appendix for computation of population s t a t i s t i c s at the ISZ and o` the fines accrued for the period February 23 through March 2£.
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following the mayor's failure to remedy inadequacies at a municipal dump. The Court of Appeals held that these fines were entirely justified and noted that:
CTlhe payment of fines i s creating a sizeable fund that properly could be used to speed rehabilitation Cof the dump] or compensate plaintiffs for the special damages they have suffered due to defendant's unjustified delay.... Should defendant persist in inaction or should no agreement between the parties materialize, the d i s t r i c t court may consider further exercise of i t s equitable power, perhaps to order the rehabilitation plan to be carried cut by an independent contractor paid from the fund created by the contempt fines.
Id. at 7-8. ¯
Even more to the point, federal courts faced with prison
overcrowding of c r i s i s prcporticns have exercised their equitable powers
to order that fines collected as contempt sanctions be used to pay the
bail of indigent detainees, thereby effecting an immediate reduction in
the pcpulaticn. In order to reduce the overcrowding in the County Jail in
tt:bile, Alabama, for example, a federal d i s t r i c t ccurt ordered that
$150,000 of the $2 million in accumulated fines be used to provide fees
for bail bends for those pre-trial detainees who were tco peer to pay the
fee. h¾:toile County Jail Inmates v. Purvis. 531 F.Supp. 222, 224 CS.D.
Ala. l·5Q4>. Confronted with over crowd ing in the Holmesburg Prison, a
municipal facility in Philadephia, Pennsylvania, the federal cccirt there
found defendants, city officials, in violaticn of i t s order and instructed
them to provide funds to finance a bail prcaram sufficient to obtain the
release of at least 3øØ detainees in order to ccmply with a ccurt-ordered
maximum pcpulaticn. Harris v. Pernsley. No. 82-1847 CE.D. Pa. June 6,
1988Hunpublished order '.> (provided to defendants and Court as Appendix C to
Plaintiffs' Prehearing Memorandum for July 1983 Hearing).
-27-
136

In keeping with the cited precedent, and in the exercise of i t s equitable power to use the fines i t has irrposed to remedy the problem Lu¯.derlying i t s contempt order, this Cccirt hereby orders that ¢l£4,23ZF= of the more than $293,000 that has accrued since February 23 be paid to the Department of Corrections and earmarked for an Emergency Overcrowding Relief Fund. The monies in this Fund acre to be used to provide bail for indigent pre-trial detainees, thereby effecting an immediate reduction in the population of the ISC. Plaintiffs long ago suggested that the fines collected in t h i s case be used to fund a bail program, and defendants' failure to reduce the peculation of the ISC in the four months since this Court's last order has at last convinced me that such a step i s now necessary to secure compliance, f-towever, I will suspend the collection of the additional fines accrued from March. 14 to the effective date of this Order at this time, while reserving the right to levy these fines if the $164,253 to be paid new proves to be insufficient to achieve substantial cc<np 1 iance with the Court's orders.
In additicn, t h i s Court further orders that the Emergency Overcrowding Relief Fund be used to provide bail for indigent detainees who have had bail set at $5,000 cash bail (or i t s equivalents!) or less by ruling of the Superior cor District Courts of the State of FJ·¯icde Island. Since i t i s not for this Court or anyone else to sec end-guess the decisicn of the .judge who set bail, this Court will impose no restrictiens en who among the low-bail population will be eligible for participatico in the Emergency Overcrowding Relief Fund nor ccodcoe such restrictiens being engrafted en =This represents the fines accrued between February 20 and March 13, the date of the compliance hearing.
-2S-
137

by anyone other than the court that first imposed the bail. Detainees held for want of bail have already been judged eligible to be released until their t r i a l dates upon the payment of a certain amour.- of money, and that .judgment will be given effect without modification by the bail program. These pre-trial detainees are in .jail only because they are too poor to make bail. By using the contempt fines to provide bail money for these individuals, i t is anticipated that overcrowding can be substantially reduced with minimal intrusion into the administration of the ACI by t h i s Federal Court.
Finally, this Court directs that the monies be utilized in such a way as to provide bail for the maximum number of people given the funds available, so as to have the greatest possible impact en reducing the 131: population and to maximize the value derived frc<n t h i s use of taxpayer dollars. To effectuate t h i s provision of the Order, I recommend that bail first be provided for those pretrial detainees held for want of $1,000 cash bail Cor i t s equivalents) or less; then for those held for want of $2,500 cash bail (or i t s equivalents) or less; and finally for those held for want of $5,000 cash bail <-'.or i t s equivalents) or less; and within each category provided first for those who have been in j a i l the longest. Each person bailed must sign an affidavit of indigency, revealing personal assets and l i a b i l i t i e s . M:nies returned to t h i s fund upon a bailed person's appearance at t r i a l will be used to provide bail to another detainee.
The Emergency Overcroiwding Relief Fund i s not meant to replace Froject Bail, or any of the other i n i t i a t i v e s planned by defendants, which the Court experts defendants to pursue in accord with the timaframes set
138

forth in the December Plan and the February Report. Indeed this Court applauds Froject Bail as an important part of defendants' comprehensive long-range plan to deal with overcrowding at the 131; and throughout the Ail:I. l·toweve¡-, the current overcrc*ding cannot be allowed to ccntinue or worsen during the six to seven month start-up period projected for Project Bail. The c r i t i c a l nature of this problem demands that a bail fund be implemented now.
Unen Froject Bail is fully operative, the Emergency Overcrowding Relief Fund will be di^:cntinued and any monies left in the Fund will be transferred to Project Bail. Admittedly, the Emergency Overcrowding Relief Fund lacks certain of the cc<nrrisndabie features of Proja:t Bail, such as providing supervision of those released en bail to ensure their attendance at t r i a l and providing support services to enable the bailees to be employed, functioning citizens. =¦G' Yet while I do not ccotend that the Emergency Overcrowding Relief Fund is an ideal solution to the problems at the Intake Service Center, I find that i t i s an essential emergency measure necessary to relieve the pressures caused by severe overcrowding at the facility.
IT IS HEREBY ORDERED that, because defendants, Governor Edward DiFrets and Director John M;<ran, have failed to purge themselves of contempt in that they did not implement by February 20, 1989 a plan to reduce the pcpulaticn at the ISC to no more than 250 persons and to eliminate the housing of pre-trial detainees in dormitories, the fines that have accrued at the rate of $5Q per day for each person held in the ISC in excess of the 250 pcpulaticn limit are levied against defendants. ^Defendants are free, of course, to implement whatever additional features they feel are necessary to ensure bailees' attendance at t r i a l and to provide for their welfare while awaitinq t r i a l in the community.
139

IT IS FURT}-ER CFDEF£D that defendants must provide t o the Department of Corrections £164,253 of the accumulated fines within 15 calendar days of the effective date of t h i s Order, which funds w i l l be used to finance an Emergency Overcrowding Relief Fund for the purpose of providing bail for indigent p r e - t r i a l detainees.
IT IS FUR¯n-ER GRDEF£D that payment of the balance of the fines, accrued from March 14 through the effective date of t h i s Order, shall be suspended unless and u n t i l such monies are needed to effectuate the orders of t h i s Court regarding the conditions of confinement at the 191:.
IT IS FUF:Tl·-ER ¤F££FED that the Department of Corrections shall commence providing bail funds for p r e - t r i a l detainees within 33 calendar days of the e f f e : t i v e date of t h i s Order, shall make every e f f o r t to bail as many p r e - t r i a l detainees a=> possible with the funds available, and shall continue to b a i l p r e - t r i a l detainees with mcnies returned to the Fund. The Department w i l l submit a progress report t o the Court and the parties every 10 calendar days, specifying the name, alleged offense, and amount of bail of each person for whom Emergency Qvercrc<~ding Relief Fund monies have been provided.
IT IS FURTHER ORDERED that the accrual of new fines w i l l be suspended for six months from the effective date of t h i s Order, at which time a compliance hearing w i l l be held. By the date of the compliance hearing, the Court expects that defendants w i l l have implemented the i n i t i a t i v e s which they set forth in the December Plan and the February Report to bring the IS-- into compliance with the Court's standing orders. Defendants must not r e l y only en the Emergency Overcrowding Relief Fund or Project B a i l ; they must move forward with a l a c r i t y en a l l frents. Defendants are hereby
140

put en notice that the Ccu*-¯t will consider harsher sanctions if defendants are again fecind to be in contempt of ccurt.
In order to afford the defendants an opportunity to.appeal t h i s Order, t h i s Order i s suspended pending appeal.
Enter:

Order:
fallMJ^^^J Senior Judge April 6 t 1933

Deputy Clerk

141

APPENDIX CAL¤LL·A>TICN CF FINES ACCRUED SINCE ¯TVE CCM=t_IAfCE DEADLINE1
The column marked "A&Q" l i s t s t h e number of sentenced persons hcused i n t h e Intake Service Center en t h e date shown, w h i l e "DETAINEES" l i s t s t h e number of p r e - t r i a l d e t a i n e r s hcused t h e r e . The column marked "TOTAL" l i s t s t h e o v e r a l l number of persons hcused i n t h e Intake Service Center on t h e date shown. "EXCESS" i s t h e number of persons hcused i n t h e ISC beyend t h e populated cap of 253. "FINE" i s the monetary p e n a l t y i n c u r r e d due t o non-compliance en t h e date shown, c a l c u l a t e d by m u l t i p l y i n g t h e number of persons held i n t h e ISC i n excess of 233 ("EXCESS") en t h e given date by $50 per persco. A " * " i n d i c a t e s data provided o r a l l y by a r e p r e s e n t a t i v e of t h e Department of C o r r e c t i c n s .

DATE February 20 February 21 February 22 February 23 February 24 February 25 February 2£ February 27 February 2S March 1 March 2 March 3 March 4 March 5 March 6 March 7 March 8 March 9
March 10 March 11 March 12* March 13

DETAINEES

47

343

53

334

5S

334

61

341

54

328

54

341

51

56

54

329

57

65

80

302

80

318

76

330

83

309

86

313

85

321

'30

316

99

303

93

336

97

345

'95

EXCESS 140 142 142 152 132 145
- 153 131 133 144 130 132 148 156 142 149 156 156 157 185 192 168

FINE $7,000.00
7,100.00 7,100.00 7,600.00 6,600.03 7,230.00 7,650.00 6,550.00 6,650.00 7,200.03 6,500.ß3 6,600.00 7,400.00 7,800.03 7,100.03 7,450.00 7,800.00 7,800.0ø 7,850.00 9,250.00 9,600.00 8,400.00

Total fines accrued from February 20 through March 13 $164,250.00

March 14 March 15* March 16 March 17 March 18 March 19 March 20 March 21 March •· ••• March 23 March 24
March 25 March 26

107

318

112

321

HI

103

318

103

330

103

117

330

123

119

316

131

315

133

312

125

336

125

348

425
433 427 438 443 447 448 435 446 442 461 473

175 183 183 177 183 193 197 193 185 196 192 211

8,750.00 9, 150.03 9,150.00 3,850.03 9,400.00 9,650.03 9,850.03 9,9GX3.Ö3 9,253.03 9,300.00 9,600.03 10,550.03 11,150.03

Total fines accrued frc<n March 14 thrcuah March 25

$125,050.33

:L·TAl_ FINES ACCRUED FROM FEBRUARY 23 TrF-ûJGH MAF?IH 25

£239,333. C3

1Data from Piarch 27 thrcuah t h e e f f e c t i v e date of t h i s Cr¤er i s

14':

 
 .

.

•

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.

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<"'v

• i =¾ . * •;>,-?

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, e t a l . , )

)

v·

)

C.A. No. 74-172

J. JOSEPH GARRAHY, et al.

THOMAS R. ROSS, et al.,

V.

C.A. No. 75-032

J. JOSEPH GARRAHY, et al.

¯¤ :

§1 Ei

==¡89S

ORDER
On November 19, 1984, the Court entered an order which inter

S»oo

¯õ>= 19 .alia set forth certain further compliance requirements and

¯EÌ ro :

ü

reporting and compliance deadlines with respect to the Court's

O-·

0-

remedial decree of August 10, 1977. The defendants have contnued

their compliance efforts since November 19, 1984 and have

periodically reported on same to the Court and to the plaintiffs.

On June 24, 1985, the Court reactivated the Special Master to

conduct an assessment of the defendants' success in meeting the

terms of» the November 19, 1984 Order. On July 22, 1985, the

Special Master filed his Findings And Recommendations which inter

alia found that the defendants had not complied with certain

important provisions of the November 19, 1984 Order and that

although they had the plans and resource to comply with some of

those provisions, they clearly were unable to cio so under- the

current compliance deadlines.

On September 17, 1585, a status conference was held in.

chambers and appearing there with the Court were the Special

Master, the defendant John Moran and certain of his subordinates,

„ ¯.

ATTACHMENT B

•i'¾

>r>¿

'.
Assistant Attorney General David Prior, counsel for the defendants, and. Alvin J.. Bronstein, counsel for the plaintiffs. At this status conference, the defendants reported on recent compliance efforts and also made oral· motions.•to amend existing
...`t-
compliance requirements and compliance and reporting deadlines, which motions were not opposed by the plaintiffs. Counsel for the plaintiffs advised the Court that plaintiffs agreed that the defendants would be in compliance with the Court'-s orders with respect to housing and all environmental health and safety issues ^. at the Maximum Security Facility by November 1, 1985 and, in light of the substantial compliance made by the defendants in "those areas, the Court will grant those motions.
At the September 17, 1985 status conference, the Court also
r c " £ r ^ -¯:¯'· :rc:·;¯.` r.r. •\/I.LS:~ j `; : :`.·'··. :í-÷ J.T .•:c.¡¯.·r¯ .r.:·. •..•- ;¯:.·.·Í` •ccr: •; ::·.-r· •:'
considered the July 22, 1985 Findings and Recommendations of the Special Master and heard from the parties with respect to the current state of overcrowding and idleness at the Medium Security facility and the Intake Service Center and the" impact of said overcrowding and idleness on the basic housing, health, environmental and safety standards which the defendants are required to meet under the prior orders of the Court. The Court determined that an evidentiary hearing" was necessary at the earliest possible time to examine these issues and to determine whether further remedial relief is required to protect the constitutional rights of the plaintiffs as set forth in the earlier decrees of this Court.

-3-

Á ':'• .

It is therefore the order, judgement and decree of this Court

• that:

..: • '

1. The defendants' motion to permit the use of the

infirmary.isolation cells- at the Maximum Security Facility, for

short term disciplinary purposes, that.is for no more than-thirty

(30) days,, is •granted provided/ · however-, ¯ •that - the ;`de·fendants

within .sixty (60) days from the date of .this .Order: submit..to the

Court and to the plaintiffs a written description of their plan

for the use of these cells and a description of steps taken to .

ensure that the abuse which characterized . their earlier use will

n o t r e c u r . .:. `.· r:\:'· .•' ¯ .• :: · '

¯¦ · .

; ....

.....•-... .

.. 2. The defendants' motion to extend their time to complete

the renovations at the Old Maximum Security facility to November

I,:¯.I985 and to thereafter continue to use the facility for the

housing of prisoners indefinitely so long as they maintain that

facility in compliance with the minimum standards set forth, in

the August.. 10, 1977 order is granted. A report detailing the

status of these . renovations shall ;be filed with the Court_a.nd

plaintiffs by November 15,. 1985.

3. By November 30, 1985, the defendants shall provide the

Court and plaintiffs with a formal report which details all

plans, either in place or prospective, •together with funding

sources and timetables, for providing meaningful vocational and

industrial programming in each facility of the Adult Correctional

Institutions.

4. ¯ This matter be set for an evidentiary hearing commencing Monday, December 16 1985 at 9:30 a.m. The Court will take .',
¯¯í¯:

-4-
current state of
Pacllltyf i
Population/ an¯d¯¯tthhee ''iinnttaakkee VSe"r·vi¯ce

p r o t e c t i v * custody

Prior oVder s ! ¿ f 5 · The "court
g¾
:-ì..· •: w . - · - • - , - . . . - . •
Enter:' Juagë{
Se.p t eir.be r 3û ", ¯ 1 9 8 5 *¯¯'

""11""'? ·
to ™ ?——poti
, t . ° : . t h e C o > > " " t h i n oonnee wweek c£
By Order,

:: •Clerk

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r I\< THE UNITED STATES DISTRICT COURT-' FOR THr; DISTRICT OF RHODE ISLAND

TííO;·:AS R. ROSS, individually and in his capacity as President of the National Prisoners Reforn Association; NICHOLAS A. ? A L : Ü G I A N O ; ROMEO GABRIELK; DONALD BRANDT; and NATIONAL PRISONERS REFORM ASSOCIATION, et al
Plaintiffs

vs.

Civil Action No. 75-0032

P?IILIP W. NOEL, individually and in his official capacity as Governor of the State of Rhode Island; DONALD TAYLOR, individually and in his official capacity as Acting Director of the Department of Corrections; JAMES MULLEN, individually and in his official capacity as '7arden of the Adult Correctional Institutions; and RO3ERT BLACK, individually and in his official capacity as Senior Classification Officer of the Adult Correctional Institutions, et al

Defendants

Palmigiano v. Almond

PC-R-0001-0027

COI·IPL·Ai:r7-CLA53 AC?I'::¡

•T·J7.ISDICTIO:i

1. This is a civil action arisin¯¯ under the

Vnited States Constitution, particularly under the

provisions of the Fifth, Ei.~hth, ninth and fourteenth

A.-endnents to the United States Constitution and federal

la·.r, more particularly ¡(2 'J.S.C. Section 1933, 23 U.S.C.

Sections 2201 and 2202, and under certain statues of the

State of Rhode Island.

2. Plaintiffs are inmates of the Adult

Correctional Institutions at Cranston, Rhode Island, and an

organization representing inmates at the Adult Correctional

j Institutions.

|\ ¡!

3· Defendant Philip W. Noel is the Governor of

¦ the State of Rhode Island.

`. i

k. Defendant Donald Taylor is the Acting Director

¦: of the Department of Corrections' of the State of Rhode !
i: Island.

•v- ¡

5. Defendant James \l. Mullen is v'arden of the

:• A¯cUlt Correctional Institutions, Cranston, Rhode Island.

'y \

6. Defendant Robert 3lack is the Senior

'<• I

¦ Classification Officer of the Adult Correctional Institutions.

7· The named plaintiffs faring this action on their

o::-.\ behalf and pursuant to -;l= 23(a). (b)'l), and (h)(?) o"

^he Federal Rules of Civil Procedure on b·5h-.lf of all ;jerr,ûiis

¯ .O'.rcerated :Lri the ídult Corrûctio:`.al Ir. = titutions.

¿_

3 . On i:ìí'orr·.at Ion ?.n.¯i 'jeliof1, ;`:.s.in>i '`i`s ' olasò iü

`- ¯/·`.:ri3¿J a.? ip.>roxlmtely ¯`·` per.íc:\3 -'.:'. I T S O nunero:u; a.:; í.o

:¯.·i¯¡:e joináer of all r."c:.Voer3 ir`.prac^ic?. 1.

- 1-

O· Plaintiffs chs.il 2ïiõe the constitutionality of t:`.e conditions of their confinement.
10. The c¤ndìtiori3 of plaintiffs' confinement affect; all members of plaintiffs' class.

coin? i

11. The purposes for v;hicr. plaintiffs are confined

are enumerated in the Rhode Island General Laws, as set

forth with greater particularity herein; the appropriations

o* the Rhode Island General Assembly for the Department of

Corrections, and the terns of various grants av/arded to the

Department of Corrections pursuant to the Crime Control Act

of 197312.

A purpose of plaintiffs1 incarceration

enumerated in the above sources is the rehabilitation of

plaintiffs and the preparation of plaintiffs for a meaningful

and productive life upon the completion of their period of

¦ confinement.

i

13. Plaintiffs' incarceration does not accomplish

• ; this purpose and as a result thereof plaintiffs confinement

; is in violation of their rights under the ?ourteenth Amendment

! :

to

the

United

States

Constitution

and

under

the

Civil

Rights

1 Lavs of the United States.

I-'!, "?he allocation of resources :o assist prisoners at the Adult Correctional Institutions in Cranston, Rhode Island, is made in an arbitrary and capricious manner, v;lthout due process of lav; a.`i in violation o'` plaintiffs' ^our;eenth A'¯.v?nd:¯^ont ri·¯¯h¯;3. These !'2ÍO`Ì·':SS include th>¯; resources, services and o¯.·he`.` ¾lã :ìuli^íï^tsd be¯Lov:.

\.

COUNT m

i[>. The allocation of r2sources to assist prisoners

¦ at the Adult Correctional Institutions discriminates against

certain classes oT prisoners in violation of their Fourteenth

. Amendment right to equal protection of the la¯.`:s. The

' classes discriminated against include: prisoners sentenced

;

j

; to life tarns; women prisoners; prisoners classified as

•:

¡

•

-

\. protective custody; prisoners sentenced to terms of less than

!

¦· •

!

¦ one year: and prisoners incarcerated in the Medium Security

!i Facility of the Adult Correctional Institutions.

j

!¡

!

¡¡

COUNT IV

j

!'

'

¦;

16. The cumlatiye effects of plaintiffs' confinement, |

;. as set forth herein, have deprived plaintiffs of their

j

Ji constitutional right to be free from cruel and unusual
í!
¡! punishment.

ij

ji

COUNT V

17. Rhode Island General Laws 13-3-26 assigns the

¡i

ji educational and vocational training unit of the Department of

1
!
!
ì
•
¯ i
j

I Corrections the duty of determining the educational and

j

;. vocational needs and aptitude of each person imprisoned in

j

• : the Adult Correctional Institutions.

-

¦

1". The educational and vo<

Jo33 »^¡ot dat2rmi:io the educational and vocational nee is and

aptitude of each person imprisoned in the Adult Correctional ; Institutions.

Z~"`Y~ VI 1 9 . Rhode Islan¯; " c h o r a l Ln::s l ¯ ` - > l Ci·eatc3 -,

r-jcûivin~, and o r i e n t a t i o n u.¯.¯l¯ 0" t`ie `·2~`-\``Z:^.2`T.':. of `-.`,o `.¯.`-:·¯:t Ions .

20. The receiving and orientation unit is char~ed

v:ith certain responsibilities to all persons sentenced to ths

;

/

A:iult Correctional Institutions for no re than one year. These :

• responsibilities include the study and evaluation of ill such

psrõons to develop a program of rehabilitation, education, and. ;

í ¯

|

•• medical and other care as is necessary and appropriate to

i
:! prepare such persons to become useful members of society.

, `<`. •
^ I

21. T¾e development of a program of rehabilitation

¯

í

¡ for each person is to be predicated upon information from

;. a variety of sources, to wit, medical, psychometric, and

\ psychological exams) the criminal record of the individual;

j; the person's case history;, the record of the Department of

i¦ tha Attorney General; and the record of the sentencing court.

\`-

22. The receiving and orientation unit of the Adult

;¡ Correctional Institutions does not study and evaluate all

j'

t·ioQ.

¦: persons sentenced thereto for more than one year, _»c>fc¯ does it

'• prepare a program of rehabilitation, education, medical, and

|` other care for all such persons, v;ith the goal of preparing

¦¯ such persons to become useful members of society.

¡

23· Programs of rehabilitation which are developed

• for some persons sentenced to the Adult Correctional

¡: Institutions for more than one year are not formulated on

tha basis of the information Rho-ia Island !¯ìanaral Laws 13-3-1

mandates be used as the basis for the construction of programs

of rehabilitation. 2;l. Rhode Island GeneralL·a¯.`:s13-2-23 requires tl`.3

kl V.`arien of the Adult Corract.ioml Ino'; Itutions to sen th?:t all

pri3onar3 therein are active!;' •2ii~ara,.i in the v;ori:, sdi¡ :atlo!·

vocational training, or other activity nrG;`,cribed for t`n-'.`a.

25- There is no program of v;ori:, education,

vocational training, or other activity prescribed for each

¤risoner.

26. Each prisoner is not actively engaged in a

program of work, education, vocational training, or other

activity prescribed for him or her.

27. In those cases in which there is a program of

work, education, vocational training, or other activity

prescribed for an inmate the program is deficient in that it

fails to meet minimally acceptable professional standards

for such programs, it fails to meet the standards for such

programs required by the Rhode Island General Laws as set

forth elsewhere in the complaint, and it fails to meet the

j¦ standards for such programs required by the terms of various

ì¦
j¦ grants awarded to the Department of Corrections pursuant to ji the Crime Control Act of 1973 ·

i¦

!.

COU:TT V I I I

¯j'

23. Rhode Island General Laws 13-2-25 requires that

i

. all newly incarcerated prisoners be set to labor.

I

29. All newly incarcerated prisoners in the Adult

'` Correctional Institutions are not set to labor.

`·

COU'IT IX

i

30. Rhode Island "2neral Lcv.;s l¯>-7-27 r e q u i r e that

j all persons sentenced to imprisonment in the Adult Correctional

Institutions for r`.ore than or.e year shall ¯cc· placed in

employment.

;.

31. All persons sentenced to a ú-:-r·m of more than one

yiar in the Adult Correctío:i;l Institute `:¯.¯ are. not nl;\c.îl in

e· · loyraent.

CQ·J·¡T ×

3?-. Rho¢ìe Island General Laws 13-3-1 requires ths

i·r;csivl:i¯¯ and orientation unit oi¯` the. Adult Correctional

Institutions to sa."ïre.íj¾te for a period not to exceed 30 days

all persons sentenced to a tern in excess of one year- during

v;hich period various evaluations, studies, and classifications

; of such persons are to be conducted.

•

33· The receiving and orientation unit does not

segregate all persons sentenced to a term in excess of one

ï year. i:

3;*· The receiving and orientation unit does not

i; evaluate, study, and classify all persons sentenced to a tern

!! in excess of one year.

j

33. In those instances in which the receiving and

'{. orientation unit does evaluate, study, and classify an inmate :1 sentenced to a tern in excess of one year, this evaluation,

study, and classification is not completed within a period of

j 30 days.

''

3'5. In those instances in which there is an

i;

¦: evaluation, study, and classification of an individual, it is

¡'

I deficient in that it fails to neet the standards for the same

required by the Rhode Island General Laws as set forth else-

i where in the conplaint and it fails to neet the standards for

the same require:! by the terns of various grants awarded to

tiiD Depar·¿:`:ent o:` Corrections pursuant to the Crime Control

Act of i973.

¯:OU:;T X I

37. R:`.-2-l·e Island General La`.¯3 13-3-¯1- requir·es the

r ;-c 3 Ì V Ì T ¯ and or.í.'î •it at ion u n i ' of tne AÖ!;lt¯. C o r r e c t i o n a l

¯`':.;ïi;·;';ioriô to c`.i¾sify a l l person r;ento:¯`.c3·.; to a tei·r. in

excess of one year as maxima:!, medium, or-minimum security

ris¡:s. Such classifications are to be completed during the initial 30 days of incarceration.

¡r ``

33. All persons sentenced to a torn in excess of

; one year at the Adult Correctional Institutions are initially i. ! classified as maximum security risks.

¦;

39 · All persons sentenced to a term in excess of one

, I | year at the Adult Correctional Institutions are not initially

í'`

'

¦` classified as a type of security risk, but are incarcerated in i¡ !i a maximum security facility.

,7 . ji

40. There is no nedium security security facility at

C

• \

¡ the Adult Correctional Institutions, nor is there any

¡i

j: classification of inmates in a medium security status.

¦¦

¯

COUNT XII

i;

>}

Hi. Plaintiffs incarcerated in the Maximum Security

i`:

j: Facility are housed in individual cells which provide

¦¦

; inadequate living space.

¡'

k2. There is inadecuate ventilation and circulation

4

¦¦ of air for plaintiffs incarcerated in cells in the î·íaxiraun

'• Security Facility.

!

!13· There is inadequate heat regulation in the cells

of the Maximum Security Facility.

`·i'¦. Sanitary conditions in tho ¯·îaxinum 3¿curiïy

J Facility of the Adult Correctional Institutions are

¦ inadequate because of the prevalence of rodents. ;i5. There are innì3qu?.ta ¤ho¯.-rer facilities for

persons incarcor?.te:i in the "a:'.ìnun Security Facility of the

. .Mult Correctional In3tìt';ti=;is.

•'*'")

`^"` r` ¯`' n t ì f f 3 ^ ``~`•**" *`ccr*í¯*†¯,ozí — *i 'Cthn ^*^diu`¯i S o c ' \ x ` L . 'c `·r

•-•`o.c.ilit·:7 of the A·.lult Cori`o2¯¿io:ìal I;ì3-îtutior`.3 v.'ho are

- 7-

housed i:`i lî\r¯3 domj/joriea fire deprived of any privacy. !¡7· Plaintiffs incarcerated in the Medium Security
Facility of th.; Adult Correctional Institutions who •"ire housed i.i individual cells are provided inadequate living space.
¾3. There are inadequate laundry facilities for inmates at the Adult Correctional Institutions.
49 · Plaintiffs incarcerate! in the Adult Correctional Institutions are subjected to conditions of confinement which are monotonous, oppressive, and unhealthy.
COÜ.MT XIII 50. The defendants, and each of them as aforesaid, are responsible for the health, safety, and well-being of all persons incarcerated at the Adult Correctional Institutions. 51. During; the past few years there have been numerous assaults upon prisoners in.the Adult Correctional Institutions by other prisoners in the Adult Correctional Institutions. 52. Plaintiffs incarcerated in the Adult Correctional Institutions are unprotected from physical assaults and batteries against their bodies by other inmates.
COU:JT X I V
33· 3ach year darin.~ the period of plaintiffs' incarceration, the Rhode Island General Assembly has appropriated monies for the rehabilitation of plaintiffs, for ¯';¯.ia education of plaintiffs, and for the provision of nodical a:id other care for plaintiff 3.
j·'! . Pl'ilntìf '•`j vi!;r5 and arc the :iritendod bons '`ici'í r·Lo3 •`>f 3lid ~e;iies.

;

55. The defendants and each of them as aforesaid, were

and a:`3 responsible for the administration of these monies in

accordance with the dictates of the Rhode Island General

Assembly.

56. The monies appropriated by the Rhode Island

: General Assembly for the benefit of plaintiffs, as set forth

' above, have not been used for plaintiffs' benefit or in

¦.

j: accordance with the mandate of the Rhode Island General

¦

*

¦ Assembly.

i'

j:

COUNT XV

57. Pursuant to the Crime Control Act of 1973, the
I:
i Department of Corrections has been awarded various grants to

; assist in the rehabilitation of individuals incarcerated at 1 the Adult Correctional Institutions. These grants have been
i·
¡! designed to assist the educational administration unit o f the

¦i Adult Correctional Institutions, the treatment team o f the

! Adult Correctional Institutions, the staff services unit of

j the Adult Correctional Institutions, the central registry of j· ¦ the Adult Correctional Institutions, the medical services of í
¦ the Adult Correctional Institutions, the food services

¦ department of the Adult Correctional Institutions, and the

Training Academy for employees of the Adult Correctional

Institutions.

õ^i. Plaintiffs v;ere and are the intended beneficiaries ; of said -rants.

:

59. "ha defendants and each of. then as aforesaid were '•

;· and ara responsible for th3 administration of these monies in j

accordance v;ith the tor!:is of the grants.

60. The monies provided by these grants have not. been : used for plaintiffs' benefit or in accordance with the terns '•

of the grants.

COUi\?g XVI

\

;;

ßl. Plaintiffs incorporate, v;ith like effect as if

:

! herein fully repeated, each and all of the allegations contained }

!:

ì

¡ in Nicholas A. Palnigiano vs. Philip Noel, et al, Civil Action ¦

j¦ No. 74-172.

|

¦

RELIEF

i

!:

i

\`

62. 3y reason of the above, plaintiffs and members

¡

!:

¦

• of their class have suffered and will continue to suffer

j

' immediate and irreparable injury for `.íhich there is no

j·

¯

i: adequate remedy at law.

j

v:;iERE?OR2, plaintiffs respectfully pray that this

I

¡; Court:

¦:

1. Certify this action as a class action pursuant

i

:. to Rule 23(a) and (b) of the Federal Rules of Civil Procedure

; on behalf of all persons incarcerated in the Adult

. • Correctional Institutions.

2. Declare the conditions, customs, practices,

and usa¯¯ss dessriboà i\er·üìn as in violation of the Constitution

: and lav:s of the United States and the laws of Rhode Island.

• 3. Psri-anently enjoin defendants from continuing

`:.he con lition3, customs, practices, and usa.~es describe.T. `ierein an.l fou:`.:`1 'co be i`.`. violation of t`i¾ Con3tìtutio:ì and l;-i¯./\`. o f z'.v. :':i :.t 3··.l ." i¯. a •;..-3 `.:i`. t:v,¯> la\.¯" o f ¯'ho-Ì3 l o l a . i A .

j.

!i · Award plaintif i¯¯3 damages in the anount of

•. 2j million dollars for the injuries they have suffered.

;

5· Such other and further relief as the Court deems

ì

i; just and proper.

Respectfully submitted

I

Thomas R. Ross, et al

By their attorney,

Robert 3. '•tann, Esquire 231 l/ickenden Street Providence, Rhode Island

CERTIFICATION

j·

I hereby certify that an exact copy of the within

¡

I Co:iplaint v;as hand delivered to the Department of the Attorney

'; General, Attn: Ronald A. Dwlg;ht, 250 Benefit Street,

\ Providence, Rhode Island, on the day of June, 1975.

 
 Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 1 of 11
U.S. District Court DISTRICT OF RHODE ISLAND (Providence) CIVIL DOCKET FOR CASE #: 1:74−cv−00172−L−JH

Palmigiano v. Department of Corrections et al Assigned to: Senior Judge Ronald R. Lagueux Referred to: Magistrate Judge Jacob Hagopian Case in other court: lst Circuit, 07−02251
lst Circuit, 07−02251 lst Circuit, 07−02251 lst Circuit, 07−02251 lst Circuit, 07−02268 lst Circuit, 10−01175 lst Circuit, CA07−2512 Cause: 28:1331 Fed. Question: Civil Rights Violation Petitioner

Date Filed: 01/11/2007 Date Terminated: 04/11/2007 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Nicholas Palmigiano

represented by Nicholas Palmigiano PRO SE

Alvin J. Bronstein 6618 31st. Street, NW Washington, DC 20015 202−686−6578 TERMINATED: 03/13/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner William O'Brien

represented by William O'Brien Adult Correctional Institution Maximum Security Prisoner#062997 Cranston, RI 02920 PRO SE

Petitioner Eric Day

Petitioner John F. Pierce

Petitioner Mark Geisser

represented by Mark Geisser PRO SE

Petitioner William Thomas

represented by William Thomas PRO SE

Petitioner Mark Halvorsen

represented by Mark Halvorsen ACI Cranston, RI 02920 PRO SE

Petitioner Christopher Botelho

represented by Christopher Botelho ACI

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 2 of 11

Cranston, RI 02920 PRO SE

Petitioner Robert Picard

represented by Robert Picard ACI Cranston, RI 02920 PRO SE

Petitioner Leonard Harrington

represented by Leonard Harrington ACI Cranston, RI 02920 PRO SE

Petitioner Phillip Jackson

represented by Phillip Jackson ACI Cranston, RI 02920 PRO SE

Petitioner John LaFond

represented by John LaFond ACI Cranston, RI 02920 PRO SE

Petitioner Christopher Marikian

represented by Christopher Marikian ACI Cranston, RI 02920 PRO SE

Petitioner Christopher Rocheleau

represented by Christopher Rocheleau ACI Cranston, RI 02920 PRO SE

Petitioner Daniel Smith

represented by Daniel Smith ACI Cranston, RI 02920 PRO SE

Petitioner Shawn Wakester

represented by Shawn Wakester ACI Cranston, RI 02920 PRO SE

V. Defendant Department of Corrections

represented by Anthony A Cipriano RI Department of Corrections 75 Howard Avenue Cranston, RI 02920 462−2583

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 3 of 11

Fax: 462−2583 TERMINATED: 07/31/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael B. Grant R.I. Department of Corrections 40 Howard Avenue Cranston, RI 02920 462−2910 Fax: 462−2583 Email: mike.grant@doc.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Anne Coyne−Fague Department of Corrections 40 Howard Avenue Cranston, RI 02920 462−0145 Fax: 462−2583 Email: patricia.coyne−fague@doc.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant State of Rhode Island

represented by Thomas A. Palombo Attorney General's Office 150 South Main Street Providence, RI 02903 274−4400 x2296 Fax: 222−2995 Email: tpalombo@riag.ri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party Michael Richardson

represented by Michael Richardson PRO SE

Interested Party Jason Cook

V. Movant Thomas Webb
Movant Kenneth Wilson
Movant Christopher Hadley

represented by Thomas Webb DL−24T PO Box 8274 Cranston, RI 02920 PRO SE
represented by Kenneth Wilson P.O. Box 8274 Cranston, RI 02920 PRO SE
represented by Christopher Hadley ACI

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 4 of 11

Medium Security PO Box 8274 Cranston, RI 02920 PRO SE

Movant Norman Wheeler

represented by Norman Wheeler ACI Medium Security P.O. Box 8274 Cranston, RI 02920 PRO SE

Movant Michael A. Brennan

represented by Michael A. Brennan P.O. Box 8274 Medium Security Cranston, RI 02920 PRO SE

Movant Larry Pelcher

Movant Parrish Chase

represented by Parrish Chase P.O. Box 8274 Cranston, RI 02920−0274 PRO SE

Movant Alfred Brissette

Date Filed 01/11/2007 01/11/2007 01/11/2007
01/11/2007
01/11/2007 01/11/2007
01/16/2007 02/16/2007

# Docket Text
Converted from paper docket (Gilfillan, Barbara) (Entered: 01/11/2007)
1 NOTICE of filing motion by William O'Brien, Eric Day, John F. Pierce, Mark Geisser, William Thomas (Gilfillan, Barbara) (Entered: 01/11/2007)
2 MOTION to Adjudge in Contempt by William O'Brien, Eric Day, John F. Pierce, Mark Geisser, William Thomas. Responses due by 1/29/2007 (Gilfillan, Barbara) (Entered: 01/11/2007)
3 MOTION to Appoint Counsel by William O'Brien, Eric Day, John F. Pierce, Mark Geisser, William Thomas. Responses due by 1/29/2007 (Gilfillan, Barbara) (Entered: 01/11/2007)
4 SETTLEMENT AGREEMENT (unsigned) by William O'Brien, Eric Day, John F. Pierce, Mark Geisser, William Thomas. (Gilfillan, Barbara) (Entered: 01/11/2007)
5 ORDER re 2 response to MOTION to Adjudge in Contempt filed by William O'Brien, William Thomas, John F. Pierce, Eric Day, Mark Geisser is due 2/14/07. So Ordered by Judge Ronald R Lagueux on 1/11/07. (Gilfillan, Barbara) (Entered: 01/11/2007)
6 MOTION for Temporary Restraining Order with attached affidavit by Thomas Webb. (Gilfillan, Barbara) (Entered: 01/16/2007)
7 RESPONSE in Opposition re 2 MOTION to Adjudge in ContemptWith Supporting Memo filed by Department of Corrections. (Attachments: # 1 Affidavit Gadsden# 2 Exhibit 2003 Stipulation)(Grant, Michael) Modified on 2/20/2007 (Gilfillan, Barbara) contacted attorney regarding using e signature and certification should be on all pleadings. (Entered: 02/16/2007)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 5 of 11

02/20/2007 04/04/2007
07/31/2007 07/31/2007 08/01/2007 08/01/2007 08/06/2007 08/09/2007 08/09/2007 08/09/2007 08/15/2007 08/15/2007 08/15/2007 08/16/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/21/2007 08/22/2007
08/24/2007

8 NOTICE of Appearance by Michael B. Grant on behalf of Department of Corrections (Grant, Michael) (Entered: 02/20/2007)
9 ORDER denying 2 Motion to Adjudge in Contempt, denying 3 Motion to Appoint Counsel, denying 6 Motion for TRO and any and all other motions/requests filed in conjunction therewith . So Ordered by Judge Ronald R Lagueux on 4/4/07. (Gilfillan, Barbara) (Entered: 04/04/2007)
10 STIPULATION by State of Rhode Island. (Coyne−Fague, Patricia) (Entered: 07/31/2007)
11 NOTICE of Appearance by Patricia Anne Coyne−Fague on behalf of Department of Corrections (Coyne−Fague, Patricia) (Entered: 07/31/2007)
12 Addendum re 11 Notice of Appearance :Certification by State of Rhode Island. (Coyne−Fague, Patricia) (Entered: 08/01/2007)
13 STIPULATION filed by all parties signed by Chief Judge Lisi (Gilfillan, Barbara) (Entered: 08/01/2007)
14 RESPONSE IN OPPOSITION by Michael Richardson re 13 Stipulation. (Gilfillan, Barbara) (Entered: 08/06/2007)
15 NOTICE OF APPEAL by Kenneth Wilson. Appeal Record due by 9/10/2007. (Attachments: # 1Petition)(Gilfillan, Barbara) (Entered: 08/09/2007)
16 MOTION to Stay and /or Recognition by Kenneth Wilson. Responses due by 8/27/2007 (Gilfillan, Barbara) (Entered: 08/09/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 15 Notice of Appeal (Gilfillan, Barbara) (Entered: 08/09/2007)
17 ORDER denying 16 Motion to Stay and intervene. So Ordered by Judge Ronald R Lagueux on 8/14/07. (Gilfillan, Barbara) (Entered: 08/15/2007)
18 MOTION to Stay and recognition by Christopher Hadley. Responses due by 9/4/2007 (Attachments: # 1 Exhibit)(Gilfillan, Barbara) (Entered: 08/15/2007)
19 NOTICE OF APPEAL by Christopher Hadley. Appeal Record due by 9/14/2007. (Gilfillan, Barbara) (Entered: 08/15/2007)
20 Certified and Transmitted Record on Appeal to US Court of Appeals re 15 Notice of Appeal (three files; documents 1−19) (Gilfillan, Barbara) (Entered: 08/16/2007)
21 MOTION to Stay and Recognition by Norman Wheeler. Responses due by 9/7/2007 (Attachments: # 1 Petition)(Gilfillan, Barbara) (Entered: 08/21/2007)
22 NOTICE OF APPEAL by Norman Wheeler. Appeal Record due by 9/20/2007. (Gilfillan, Barbara) (Entered: 08/21/2007)
23 MOTION to Stay and recognition by Michael A. Brennan. Responses due by 9/7/2007 (Attachments: # 1 Petition)(Gilfillan, Barbara) (Entered: 08/21/2007)
24 NOTICE OF APPEAL by Michael A. Brennan. Appeal Record due by 9/20/2007. (Gilfillan, Barbara) (Entered: 08/21/2007)
25 MOTION to Stay and Recognition by Larry Pelcher. Responses due by 9/7/2007 (Attachments: # 1)(Gilfillan, Barbara) (Entered: 08/21/2007)
26 NOTICE OF APPEAL by Larry Pelcher. Appeal Record due by 9/20/2007. (Gilfillan, Barbara) (Entered: 08/21/2007)
27 Supplemental Record on Appeal transmitted to US Court of Appeals re 24 Notice of Appeal, 26 Notice of Appeal, 19 Notice of Appeal, 22 Notice of Appeal (Gilfillan, Barbara) (Entered: 08/22/2007)
Motion Forwarded − 21 MOTION to Stay and Recognition, 18 MOTION to Stay and recognition, 25 MOTION to Stay and Recognition, 23 MOTION to Stay and recognition FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 08/24/2007)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 6 of 11

08/27/2007
08/27/2007
08/27/2007
08/27/2007 08/28/2007 09/04/2007
09/04/2007 09/07/2007 09/07/2007
09/10/2007 09/10/2007 09/10/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007 09/13/2007

28 RESPONSE in Opposition re 21 MOTION to Stay and Recognition, 18 MOTION to Stay and recognition, 25 MOTION to Stay and Recognition, 23 MOTION to Stay and recognition objection with supporting memo filed by Department of Corrections. (Coyne−Fague, Patricia) (Entered: 08/27/2007)
29 MEMORANDUM IN SUPPORT OF 28 by Department of Corrections in opposition to 21 MOTION to Stay and Recognition, 18 MOTION to Stay and recognition, 25 MOTION to Stay and Recognition, 23 MOTION to Stay and recognition. (Coyne−Fague, Patricia) Modified on 8/27/2007 (Gilfillan, Barbara)created docket entry relationship. (Entered: 08/27/2007)
30 RESPONSE in Opposition re 21 MOTION to Stay and Recognition, 18 MOTION to Stay and recognition, 25 MOTION to Stay and Recognition, 23 MOTION to Stay and recognition with corrected certification filed by Department of Corrections. (Coyne−Fague, Patricia) Modified on 8/27/2007 (Gilfillan, Barbara)THIS IS A DUPLICATE OF DOCKET ENTRY 28 . (Entered: 08/27/2007)
31 MOTION for Leave to Appeal /join with by Jason Cook. Responses due by 9/13/2007 (Gilfillan, Barbara) (Entered: 08/27/2007)
Motion Forwarded to Chambers of Judge Lagueux 31 MOTION for Leave to Appeal /join with (Gilfillan, Barbara) (Entered: 08/28/2007)
32 MOTION for Leave to Appeal in forma pauperis and affidavit in suppport by Kenneth Wilson. (Gilfillan, Barbara) Modified on 9/7/2007 (Gilfillan, Barbara). Additional attachment(s) added on 9/19/2007 (Gilfillan, Barbara). (Entered: 09/07/2007)
33 MOTION for Leave to Appeal /Join with by Parrish Chase. Responses due by 9/21/2007 (Gilfillan, Barbara) (Entered: 09/07/2007)
34 REPLY to Response to Motion re 30 Response in Opposition to Motion, filed by Christopher Hadley. (Gilfillan, Barbara) (Entered: 09/07/2007)
Motion Forwarded to Chambers 33 MOTION for Leave to Appeal /Join with, 32 MOTION for Leave to Appeal in forma pauperis and affidavit in suppport FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/07/2007)
35 REPLY to Response to Motion re 30 Response in Opposition to Motion, filed by Norman Wheeler. (Gilfillan, Barbara) (Entered: 09/10/2007)
36 MOTION for Leave to Appeal in forma pauperis by Thomas Webb. (Attachments: # 1)(Gilfillan, Barbara) (Entered: 09/10/2007)
Motion Forwarded to Chambers 36 MOTION for Leave to Appeal in forma pauperis FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/10/2007)
37 ORDER denying 33 Motion for Leave to Appeal by Parrish Chace. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
38 ORDER denying 31 Motion for Leave to Appeal by Jason Cook . So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
39 ORDER denying 25 Motion to Stay filed by Larry Pelcher. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
40 ORDER denying 18 Motion to Stay of Christopher Hadley. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
41 ORDER denying 23 Motion to Stay filed by Michael Brennan. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
42 ORDER denying 21 Motion to Stay filed by Norman Wheeler. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
43 ORDER denying 36 Motion for Leave to Appeal in forma pauperis by Thomas Webb. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 7 of 11

09/13/2007 09/13/2007 09/17/2007 09/17/2007 09/18/2007 09/18/2007 09/18/2007 09/18/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007
09/20/2007 09/24/2007 09/24/2007 09/24/2007

(Entered: 09/13/2007)
44 ORDER denying 32 Motion for Leave to Appeal in forma pauperis by Kenneth Wilson. So Ordered by Judge Ronald R Lagueux on 9/12/07. (Gilfillan, Barbara) (Entered: 09/13/2007)
45 Supplemental Record on Appeal transmitted to US Court of Appeals re 24 Notice of Appeal, 26 Notice of Appeal, 15 Notice of Appeal, 19 Notice of Appeal, 22 Notice of Appeal (Gilfillan, Barbara) (Entered: 09/13/2007)
46 MOTION for Leave to Appeal in forma pauperis by Kenneth Wilson. (Gilfillan, Barbara) (Entered: 09/17/2007)
Motion Forwarded to Chambers 46 MOTION for Leave to Appeal in forma pauperis FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/17/2007)
47 MOTION for Leave to Appeal in forma pauperis by Larry Pelcher. (Gilfillan, Barbara) (Entered: 09/18/2007)
Motion Forwarded to Chambers 47 MOTION for Leave to Appeal in forma pauperis FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/18/2007)
48 ORDER denying 46 Motion for Leave to Appeal in forma pauperis . So Ordered by Judge Ronald R Lagueux on 9/18/07. (Gilfillan, Barbara) (Entered: 09/18/2007)
49 ORDER denying 47 Motion for Leave to Appeal in forma pauperis . So Ordered by Judge Ronald R Lagueux on 9/18/07. (Gilfillan, Barbara) (Entered: 09/18/2007)
50 MOTION for Leave to Appeal in forma pauperis by Norman Wheeler. (Gilfillan, Barbara) Additional attachment(s) added on 9/19/2007 (Gilfillan, Barbara). (Entered: 09/19/2007)
51 MOTION for Leave to Appeal in forma pauperis by Parrish Chase. (Gilfillan, Barbara) Additional attachment(s) added on 9/19/2007 (Gilfillan, Barbara). (Entered: 09/19/2007)
Motion Forwarded to Chambers 51 MOTION for Leave to Appeal in forma pauperis, 50 MOTION for Leave to Appeal in forma pauperis FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 09/19/2007)
52 ORDER denying 50 Motion for Leave to Appeal in forma pauperis − Norman Wheeler. So Ordered by Judge Ronald R Lagueux on 9/18/07. (Gilfillan, Barbara) (Entered: 09/19/2007)
53 ORDER denying 51 Motion for Leave to Appeal in forma pauperis by Parrish Chase. So Ordered by Judge Ronald R Lagueux on 9/18/07. (Gilfillan, Barbara) (Entered: 09/19/2007)
CORRECTIVE DOCKET ENTRY re: 51 MOTION for Leave to Appeal in forma pauperis, 32 MOTION for Leave to Appeal in forma pauperis and affidavit in suppport, 50 MOTION for Leave to Appeal in forma pauperis ERROR docket entry redacted − docket entry 32 50 51 rescanned. (Gilfillan, Barbara) (Entered: 09/19/2007)
54 Supplemental Record on Appeal transmitted to US Court of Appeals re 24 Notice of Appeal, 26 Notice of Appeal, 15 Notice of Appeal, 19 Notice of Appeal, 22 Notice of Appeal (Gilfillan, Barbara) (Entered: 09/20/2007)
55 NOTICE OF APPEAL as to 37 Order on Motion for Leave to Appeal by Parrish Chase. Appeal Record due by 10/24/2007. (Gilfillan, Barbara) (Entered: 09/26/2007)
56 NOTICE of Appearance by Parrish Chase (Gilfillan, Barbara) (Entered: 09/26/2007)
57 MOTION for Leave to Appeal /join with by Alfred Brissette. Responses due by 10/11/2007 (Gilfillan, Barbara) (Entered: 09/26/2007)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 8 of 11

09/24/2007
09/26/2007 09/26/2007 09/26/2007 10/01/2007 10/02/2007 10/02/2007 10/10/2007
10/10/2007
10/11/2007 10/16/2007 10/18/2007 10/24/2007 10/24/2007 11/06/2007 12/18/2007 02/13/2008

58 USCA Case Numbers 07−2251, 07−2268, 07−2319, 07−2318, 07−2340 for 24 Notice of Appeal filed by Michael A. Brennan, 26 Notice of Appeal filed by Larry Pelcher, 15 Notice of Appeal filed by Kenneth Wilson, 19 Notice of Appeal filed by Christopher Hadley, 22 Notice of Appeal filed by Norman Wheeler. (Gilfillan, Barbara) Additional attachment(s) added on 9/26/2007 (Gilfillan, Barbara). (Entered: 09/26/2007)
59 NOTICE OF APPEAL as to 44 Order on Motion for Leave to Appeal in forma pauperis by Kenneth Wilson. Appeal Record due by 10/26/2007. (Gilfillan, Barbara) (Entered: 09/26/2007)
60 NOTICE OF APPEAL as to 38 Order on Motion for Leave to Appeal by Jason Cook. Appeal Record due by 10/26/2007. (Gilfillan, Barbara) (Entered: 09/26/2007)
61 NOTICE of Appearance by Jason Cook (Gilfillan, Barbara) (Entered: 09/26/2007)
62 Supplemental Record on Appeal transmitted to US Court of Appeals re 59 Notice of Appeal, 60 Notice of Appeal, 55 Notice of Appeal (Gilfillan, Barbara) (Entered: 10/01/2007)
63 MOTION for Entry of Judgment under Rule 54(b) n by Parrish Chase.Responses due by 10/19/2007 (Gilfillan, Barbara) (Entered: 10/02/2007)
64 MOTION for Entry of Judgment under Rule 54(b) by Jason Cook.Responses due by 10/19/2007 (Gilfillan, Barbara) (Entered: 10/02/2007)
65 Supplemental Record on Appeal transmitted to US Court of Appeals re 59 Notice of Appeal, 60 Notice of Appeal, 55 Notice of Appeal, 26 Notice of Appeal, 22 Notice of Appeal, 24 Notice of Appeal, 19 Notice of Appeal, 15 Notice of Appeal (Gilfillan, Barbara) (Entered: 10/10/2007)
USCA Case Number 07−2268 for 19 Notice of Appeal filed by Christopher Hadley, CA Case Number 07−2340 for 26 Notice of Appeal filed by Larry Pelcher, CA Case Number 07−2318 for 22 Notice of Appeal filed by Norman Wheeler, [CA Case Number 07−2319 for 24] Notice of Appeal filed by Michael A. Brennan, CA Case Number 07−2251 for 15 Notice of Appeal filed by Kenneth Wilson. (Gilfillan, Barbara) (Entered: 10/10/2007)
66 ORDER denying 57 Motion for Leave to Appeal by Alfred Brissette. So Ordered by Judge Ronald R Lagueux on 10/11/07. (Gilfillan, Barbara) (Entered: 10/11/2007)
67 Supplemental Record on Appeal transmitted to US Court of Appeals re 57 Motion for leave to appeal and order 66 (Gilfillan, Barbara) (Entered: 10/16/2007)
Motion Forwarded to Chambers 63 MOTION for Entry of Judgment under Rule 54(b), 64 MOTION for Entry of Judgment under Rule 54(b) FORWARDED to Chambers of Judge Lagueux. (Gilfillan, Barbara) (Entered: 10/18/2007)
68 ORDER denying 63 Motion for Entry of Judgment under Rule 54(b). So Ordered by Judge Ronald R Lagueux on 10/24/07. (Gilfillan, Barbara) (Entered: 10/24/2007)
69 ORDER denying 64 Motion for Entry of Judgment under Rule 54(b). So Ordered by Judge Ronald R Lagueux on 10/24/07. (Gilfillan, Barbara) (Entered: 10/24/2007)
70 ORDER of USCA as to 59 Notice of Appeal filed by Kenneth Wilson − motion to proceed in forma pauperis is granted; payments to be collected in accordance with 28 USC section 1915 (b) (Gilfillan, Barbara) (Entered: 11/06/2007)
71 MANDATE of USCA as to 59 voluntarily dismissing Notice of Appeal filed by Kenneth Wilson re: Order denying motion IFP (Gilfillan, Barbara) (Entered: 12/19/2007)
72 MANDATE of USCA dismissing appeal as to 60 Notice of Appeal filed by Jason Cook (Gilfillan, Barbara) (Entered: 02/13/2008)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 9 of 11

04/22/2008 05/02/2008 05/12/2008 05/20/2008 05/21/2008 07/28/2008 08/01/2008
09/11/2008
10/20/2008
10/28/2008 10/28/2008 10/28/2008
10/28/2008 11/07/2008 02/23/2009 08/05/2009

INITIAL Filing fee for Kenneth Wilson: $ 75.00, receipt number 68498 (Gilfillan, Barbara) (Entered: 04/22/2008)
73 MANDATE of USCA dismissing appeal as to 26 Notice of Appeal filed by Larry Pelcher (Gilfillan, Barbara) (Entered: 05/07/2008)
74 MANDATE of USCA dismissing appeal as to 22 Notice of Appeal filed by Norman Wheeler (Gilfillan, Barbara) (Entered: 05/12/2008)
Appeal Remark re 19 Notice of Appeal, 26 Notice of Appeal, 22 Notice of Appeal, 24 Notice of Appeal and #53,52, 51, 50,49,48,47,46 − documents returned from lst Circuit (Gilfillan, Barbara) (Entered: 05/20/2008)
USCA Case Number CA07−2512 for 55 Notice of Appeal filed by Parrish Chase (received via lst Circuit pacer). (Gilfillan, Barbara) (Entered: 05/21/2008)
75 MANDATE of USCA (USCA Judgment entered 7/2/2008) as to 15 Notice of Appeal filed by Kenneth Wilson. AFFIRMED (Duhamel, John) (Entered: 07/29/2008)
76 MOTION relief from stipulation re 13 Stipulation by Mark Halvorsen, Christopher Botelho, Christopher Marikian, Robert Picard, Leonard Harrington, Phillip Jackson, John LaFond, Christopher Rocheleau, Daniel Smith, Shawn Wakester. Responses due by 8/18/2008 (Attachments: # 1 Exhibit)(Gilfillan, Barbara) (Entered: 08/04/2008)
77 MOTION to Appoint Counsel, MOTION to Adjudge in Contempt with supporting memo by Mark Halvorsen, Christopher Botelho, Robert Picard, Leonard Harrington, Phillip Jackson, John LaFond, Christopher Marikian, Christopher Rocheleau, Daniel Smith, Shawn Wakester. Responses due by 9/29/2008 (Gilfillan, Barbara) (Entered: 09/11/2008)
78 MANDATE of USCA affirming this Court's decision − as to 59 Notice of Appeal filed by Kenneth Wilson, 60 Notice of Appeal filed by Jason Cook, 55 Notice of Appeal filed by Parrish Chase, 26 Notice of Appeal filed by Larry Pelcher, 22 Notice of Appeal filed by Norman Wheeler, 24 Notice of Appeal filed by Michael A. Brennan, 19 Notice of Appeal filed by Christopher Hadley, 15 Notice of Appeal filed by Kenneth Wilson (Gilfillan, Barbara) (Entered: 10/20/2008)
79 RESPONSE in Opposition re 76 MOTION relief from stipulation re 13 Stipulation MOTION relief from stipulation re 13 Stipulation with supporting memo filed by Department of Corrections. (Grant, Michael) (Entered: 10/28/2008)
80 RESPONSE in Opposition re 77 MOTION to Appoint Counsel MOTION to Adjudge in Contempt WITH SUPPORTING MEMO filed by Department of Corrections. (Grant, Michael) (Entered: 10/28/2008)
81 MANDATE of USCA asffirming this court's decision as to 59 Notice of Appeal filed by Kenneth Wilson, 60 Notice of Appeal filed by Jason Cook, 55 Notice of Appeal filed by Parrish Chase, 26 Notice of Appeal filed by Larry Pelcher, 22 Notice of Appeal filed by Norman Wheeler, 24 Notice of Appeal filed by Michael A. Brennan, 19 Notice of Appeal filed by Christopher Hadley, 15 Notice of Appeal filed by Kenneth Wilson (Gilfillan, Barbara) (Entered: 10/28/2008)
Appeal Record Returned: (Gilfillan, Barbara) (Entered: 10/28/2008)
MOTIONS REFERRED: 76 MOTION relief from stipulation re 13 Stipulation MOTION relief from stipulation re 13 Stipulation, 77 MOTION to Appoint Counsel MOTION to Adjudge in Contempt Motions referred to Jacob Hagopian. (Gilfillan, Barbara) (Entered: 11/07/2008)
82 MEMORANDUM AND ORDER denying 76 Motion Intervene, denying 77 Motion to Appoint Counsel ; denying 77 Motion to Adjudge in Contempt. So Ordered by Magistrate Judge Jacob Hagopian on 2/17/09. (Gilfillan, Barbara) (Entered: 02/23/2009)
83 NOTICE of lack of Service and MOTION for an Extension of Time to File Response/Reply to Rby Mark Halvorsen. Responses due by 8/24/2009 (Attachments: # 1 Affidavit of Halvorsen, # 2 Affidavit of Harrington, # 3 Affidavit

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 10 of 11

08/26/2009 09/14/2009 10/15/2009 11/02/2009 11/02/2009 11/02/2009 11/24/2009
11/24/2009 12/14/2009 12/18/2009 01/07/2010 01/07/2010
01/12/2010
01/19/2010 01/20/2010 02/02/2010 02/04/2010 02/11/2010

of Botelho, # 4 Affidavit of Wakster, # 5 Affidavit of Pierce, # 6 Affidavit of Geisser, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Gilfillan, Barbara) (Entered: 08/05/2009)
MOTIONS REFERRED: 83 MOTION for Service lack of MOTION for an Extension of Time to File Response/Reply to RMotions referred to Jacob Hagopian. (Gilfillan, Barbara) (Entered: 08/26/2009)
84 MOTION for Reconsideration for appointment of counsel by Mark Halvorsen. Responses due by 10/1/2009 (Gilfillan, Barbara) (Entered: 09/14/2009)
MOTIONS REFERRED: 84 MOTION for Reconsideration for appointment of counsel Motions referred to Jacob Hagopian. (Gilfillan, Barbara) (Entered: 10/15/2009)
85 MOTION to Vacate and void stipulation order by Parrish Chase. Responses due by 11/19/2009 (Gilfillan, Barbara) (Entered: 11/02/2009)
86 AFFIDAVIT re 85 MOTION to Vacate and void stipulation order by Parrish Chase, John F. Pierce, Mark Halvorsen. (Gilfillan, Barbara) (Entered: 11/02/2009)
MOTIONS REFERRED: 85 MOTION to Vacate and void stipulation order Motions referred to Jacob Hagopian. (Gilfillan, Barbara) (Entered: 11/02/2009)
87 ORDER denying 83 MOTION for Service; denying 83 Motion for Extension of Time to File Response/Reply ; denying 84 Motion for Reconsideration. So Ordered by Magistrate Judge Jacob Hagopian on 11/24/09. (Gilfillan, Barbara) (Entered: 11/24/2009)
88 ORDER denying 85 Motion to Vacate filed by Parrish Chase. So Ordered by Magistrate Judge Jacob Hagopian on 11/24/09. (Gilfillan, Barbara) (Entered: 11/24/2009)
89 MOTION for an Extension of Time of 30 days, to respond to 88 Memorandum and Order by Parrish Chase. Responses due by 12/31/2009 (Duhamel, John) (Entered: 12/15/2009)
90 MOTION for an Extension of Time to file objection to Rby Mark Halvorsen. Responses due by 1/4/2010 (Gilfillan, Barbara) (Entered: 12/18/2009)
91 RESPONSE IN OPPOSITION by Parrish Chase re 88 Order on Motion to Vacate. (Gilfillan, Barbara) (Entered: 01/07/2010)
MOTIONS REFERRED: 90 MOTION for an Extension of Time to file objection, 89 MOTION for an Extension of Time of 30 days, to respond to 88 Memorandum and Order Motions referred to Jacob Hagopian. (Gilfillan, Barbara) (Entered: 01/07/2010)
92 RESPONSE IN OPPOSITION by Mark Halvorsen re 87 Order on Motion for Service,, Order on Motion for Reconsideration, 82 Order on Motion for Miscellaneous Relief, Order on Motion to Appoint Counsel, Order on Motion to Adjudge in Contempt. (Gilfillan, Barbara) (Entered: 01/12/2010)
93 ORDER granting 89 Motion for Extension of Time ; granting 90 Motion for Extension of Time. So Ordered by Magistrate Judge Jacob Hagopian on 1/19/10. (Gilfillan, Barbara) (Entered: 01/19/2010)
94 ORDER re 91 denying Response in Opposition filed by Parrish Chase. So Ordered by Judge Ronald R Lagueux on 1/20/10. (Gilfillan, Barbara) (Entered: 01/20/2010)
95 NOTICE OF APPEAL as to 88 Order on Motion to Vacate by Parrish Chase. Appeal Record due by 3/4/2010. (Gilfillan, Barbara) (Entered: 02/04/2010)
96 CLERK'S CERTIFICATE RE: Record on Appeal re 95 Notice of Appeal by Parrish Chase (Gilfillan, Barbara) (Entered: 02/04/2010)
USCA Case Number 10−1175 for 95 Notice of Appeal filed by Parrish Chase. (Gilfillan, Barbara) (Entered: 02/11/2010)

Case: 1:74-cv-172 As of: 11/09/2016 09:43 PM EST 11 of 11

03/30/2010 04/05/2010 12/13/2011 12/15/2011 12/20/2013 02/19/2014

97 MANDATE of USCA as to 95 Notice of Appeal filed by Parrish Chase − appeal withdrawn (Gilfillan, Barbara) (Entered: 04/05/2010)
Appeal Record Returned: on 3/30/10 97 USCA Mandate (Gilfillan, Barbara) (Entered: 04/05/2010)
98 STIPULATION by Department of Corrections. (Coyne−Fague, Patricia) (Entered: 12/13/2011)
99 STIPULATION 98 approved. So Ordered by Judge Ronald R Lagueux on 12/15/11. (Cavaco, Janice) (Entered: 12/15/2011)
100 Letter from Thomas A. DiBartolo (Smith, Rana) (Entered: 12/20/2013)
101 MEMORANDUM AND ORDER: This Court receives frequent requests (principally from present inmates of Rhode Island's Adult Correctional Institutions − "ACI") to reopen the above−captioned matters. With this Memorandum and Order the Court intends to close these matters, finally and completely. So Ordered by Senior Judge Ronald R. Lagueux on 2/19/14. (Farrell Pletcher, Paula) (Additional attachment(s) added on 2/20/2014: # 1 RI General Laws 42−26−13) (Farrell Pletcher, Paula). (Entered: 02/19/2014)

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A PALMIGIANO, et aI.

v.

C.A No. 74-0l72L

BRUCE G. SUNDLUN, Governor ofthe State ofRhode Island, and George Vose, in his capacity as Director, Rhode Island Department ofCorrectionsl

THOMAS R ROSS, et aI.

C.A No. 75-OO32L

v.

BRUCE G. SUNDLUN, Governor ofthe State ofRhode Island, and George Vose, in his capacity as Director, Rhode Island Department ofCorrections

SmuLATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court for the District ofRhode Island on July 15, 1994. (Copy is attached);
WHEREAS, there have been recent population increases at the Adult Correctional Institutions;
WHEREAS, Defendants have submitted a plan to Plaintiffs' counsel to increase
the capacities in the John 1. Moran Medium Security facility by adding an additional
overhead bunk in 144 cells; WHEREAS, Defendants have also submitted a plan to Plaintiffs' counsel to
increase the capacity in the High Security Center by adding an additional overhead bunk

1 These were the named Defendants when the case was closed in 1994. Presently, Donald Carcieri is the Governor and AT. WaD is the Director of the Department of Corrections.

in 18 cells (12 in C-mod; and 6 in D-mod). The parties further agree to subtract from the population capacity the 8 hospital beds from the 1994 settlement, as they have been converted into a medical office and examination space; therefore the net increase to the population capacity at the High Security Center is actually 10;
WHEREAS, in 2002 the parties entered into a StipUlation to increase the capacity at the Women's facility (known as the Gloria McDonald facilityi to 153, and the parties now agree that that number was erroneous and should have been 154.
Now, the parties agree to the following amendments of the Final Settlement Agreement, which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995, further amended on December 20, 1996, approved by the Court on January 3, 1997; further amended on March 4, 1998, approved by the Court on March 27, 1998; further amended on May 16, 2002, approved by the Court on May 31, 2002; and further amended on February 3, 2003 and approved by the Court on February 11, 2003. (Copies of said Modifications are attached).
The Final Settlement Agreement, dated March 18, 1994, in Section ill, , D. 1 provided that the total capacity ofthe John 1. Moran Medium security facility shall be
898. That capacity was further amended by agreement to permit an increase to 922. The
Defendants now seek to increase the facility's capacity by 144 bunks. Therefore the total capacity for the John 1. Moran Medium Security facility shall be 1066.
The Final Settlement Agreement dated March 18, 1994, in Section Ill, , D. 5 provided that the total capacity ofthe High Security Center shall be 156. That total included 8 hospital beds. Now the parties agree that the 8 hospital beds may be reduced
2 The Gloria McDonald facility was previously known as the Women's Jonathan Arnold facility in the Final Settlement Agreement
2

from the total capacity as that area has been converted into a medical office and examination space. The parties further agree that 18 cells in the High Security Center (12 cells in C-mod., and 6 cells in D-mod) may be increased by installing an additional overhead bunk. Therefore, the total capacity in the High Security Center will now be 166.
The Final Settlement Agreement dated March 18, 1994, in Section Ill, 1[ D. 3 provided that the total capacity ofthe Women's facility shall be 125. That capacity was further amended by agreement in on December 20, 1996, approved by the Court on January 3, 1997, so that the population capacity was increased to 145. In the May, 2002 agreement, the parties agreed to increase the population capacity at the Women's facility to 153. The parties now agree that the capacity of 153 as set in the 2002 modification was an error and should have been 154. The parties now so amend the population capacity ofthe Women's facility to 154.
The Defendants have now verified that the aforementioned increases would not be detrimental to the infrastructure ofthe facilities and would improve prison management. Plaintiffs' counsel has inspected the facilities and confirmed that the requisite population increases will not impair or infringe upon inmates' rights.
3

All other provisions ofthe Agreement remain in full force and effect.

Dated: Julyg2007

Attorney for the Plaintiffs

Attorneys for the Defendants

Approved and so Ordered:

~~.LaIgkue"u.x rlJf-f~

aur Senior United States District Judge

Date:

2 I } dO()

RECEIVED.

DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF RHODE ISLAND JUN 2 1 1995

NICHOLAS A. PALMIGIANO, et al., }

)

v.

)

)

LINCOLN ALMOND, et ale

)

)

)

THOMAS R. ROSS, et al.,

)

}

v.

}

)

LINCOLN ALMOND, et ale

)

~~~~~~~~~~~-----------

CLERK
u. s. DISTRICT COURT
DISTRICT OF.R. I.
C.A. No. 74-172
C.A. No. 75-032

STIPULATION TO MODIFY FINAL SETTLEMENT AGREEMENT The parties hereby agree to the· following amendment of the Final Settlement Agreement in the above-entitled case which is dated March 18, 1994 and approved by the Court on July 15, 1994. The above agreement provided in Section III, i C.3 that the population capacity at the Women's Jonathan Arnold Facility shall be one hundred and ten (110). It further provided that if certain e~vironmental improvements and changes were completed by the defendants, the capacity at that facility may be increased to one hundred and twenty-five (125). The defendants have now verified that the aforementioned environmental improvements and changes have been completed and plaintiffs' counsel has inspected the facility and confirmed that the improvements and changes have been completed. Accordingly, it is stipulated and agreed that Section III, i C.3 of the above agreement is modified to the extent that the population capacity at the Women's Jonathan Arnold Facility shall hereafter be one hundred and twenty five (125).

,.,I

/

/:., .' f

2
All other provi~ions of the above agreement ;r:-emain in full force and effect.

Dated: May 16, 1995 Attorneys for the Plaintiffs

Defendants

Attorney 0290.3

eph S, Larisa I'

T'4113)

ecutive Counsel the

Governor

, State House, Room 119

I

Providence, RI 02903 (401) 277-2080 ext, 216

Approved and So Ordered:

Cipr'ano, Chief Le al Counsel Rhode Island Department
of Corrections 75 Howard Avenue Cranston, RI 02920

. 1·- "'

0091c/1-3

L
UNITED STATES DISTRICT COURT

.~~o' '. '"

FOR THE DISTRICT OF RHODE ISLAND

l_:.; '""

NICHOLAS A. PALMIGIANO, et al.

"",:

..... -.,......,..........-~

'
'-'

..:,

C.A. No. 74-0172

v.
LINCOLN C. ALMOND, et al.

THOMAS R. ROSS, et al.

C.A. No. 75-0032

v.
LINCOLN C. ALMOND, et al.

STIPULATION

WHEREAS, the parties entered into a Final Settlement Agreement dated March 18, 1994 and approved by the United States District Court For The District of Rhode Island on July 15, 1994 (a copy is attached);
WHEREAS, there have been recent population increases at the
Women's facilities (known as Gloria McDonald facility)~/ and
Intake Service Center South ("ISC") facilities which were covered by the Final Settlement Agreement;
WHEREAS, Defendants have submitted a plan to increase the capacities in the Women's Gloria McDonald facility and the Intake Center South facility by reconfiguring certain space and usage in said facilities;

~/

The Gloria McDonald facility was previously known as the

Women's Jonathan Arnold facility in the Final Settlement

Agreement.

Now, the par.ties agree to the following amendments of the

Final Settlement Agreement which was dated March 18, 1994,

approved by the Court on July 15, 1994, and subsequently amended J
in June, 1995. (A copy of the June 1995 Modification is

attached.) The Final Settlement Agreement, as modified in June
,r 1995, provided in Section III, D.3 that the population capacity

at the Women's Prison Facility shall be one hundred twenty-five

(125). The Defendants seek to increase the population 'capacity

for the Women's Prison Facility (known as the Gloria McDonald

facility) to one hundred forty-five (145).

The Final Settlement Agreement, dated March 18, 1994, in

Section III, , D.4 provided that the ISC South population capacity

shall be two hundred fifty-eight (258). The Defendants seek to

increase the population capacity in the ISC South by fifty-eight

(58), as set forth:

• .

Module I - increase to forty-E:)~~ (46), Module J - increase to twenty-four (24),

• • •

Module K - increase to forty-si~ (46),
Module L increase to forty-six (46), and
Hospital beds - increase of an additional ten (10) beds.

Therefore, the total capacity for ISC South shall be

three hundred sixteen (316).

The Defendants have now verified that the aforementioned

increases would not be detrimental to the infrastructure of the

facilities and would improve prison management. Plaintiffs'

counsel has inspected the facilities and confirmed that the

requested population increases at the Women's Gloria McDonald

facility and ISC South would not impair or infringe upon inmates'

rights.

Accordingly, it is stipulated and agreed that Section III,
,r D.3 is modified to the extent that the population capacity at
the Women's Gloria McDonald facility shall hereinafter be one
,r )
hundred forty-five (145) and Section III, D.4 is modified to the extent that the population capacity at ISC South shall hereinafter be three hundred sixteen (316), permitting greater than fifty percent (50%) double ceIling in Modules I, J, K, and L as set forth herein.
All other provisions of the Agreement remain in full force and effect.

Dated: Attorneys for the Plaintiffs

Attorneys for the Defendants

Maureen G. Glynn
Special Assistant Attorney General
150 South Main Street Providence, RI 02903

Approved and So Ordered:
Chief
Date: '/3 11~

~nthony A Cipri 0, Esq. :thief Legal Counsel
Rhode Island Department of Corrections
75 Howard Avenue
Cranston, RI 02920

- - - . - - _........_ - - _ . _ '

--.--.-.- _ ..

.. -_.- -- - .. ....... -~-.-------."--

-.

-,._.

_.'1

QQ91C11-3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

At'it 7 1996

NICHOLAS A. PALMIGIANO, et al.

or- ,DiPf. , GO~?R.f.c;r!~~

c.A. No. 7;;-0172

1

v.

BRUCE SUNDLUN, et aI.

THOMAS R. ROSS, et aI.

c.A. No. 75-0032

v.

BRUCE SUNDLUN, et aI.

STIPULATION

WHEREAS, the parties entered into a Rnal Settlement Agreement dated March 18, 1994 and approved by the United States District Court For the District of Rhode Island on july I5, 1994 (a copy is attached);
WHEREAS, Defendants have submitted a plan to increase the capacities in the Medium II faci lity I by reconfiguring certain usage in said facilities;
Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994, approved by the Court on july 15, 1994, and subsequently amended in june, 1995. (A copy of the June 1995 Modification is attached.)

I Medium II facility was previously known as the Special Needs Facility in the Final Settlement Agreement.

. The Final Settlement Agreement, dated March 18, 1994, in Section III, ~ 0.2 provided

that this facility's population capacity shall be two hundred fifty (250). The Defendants seek to

increase this population capacity in the Medium II facility by forty-two (42), as set forth:

•

A Dorm - increase to sixty-eight (68),

•

B Dorm - increase to sixty-eight (68),

•

C Dorm - increase to sixty-eight (68).

Therefore, the total capacity for Medium II shall be two hundred ninety-two (292). Furthermore, the Settlement Agreement provided in Section III, ~ 0.2 that "If F Dorm is constructed, capacity can be increased to Three Hundred and Four (304) (frfty-four (54) inmates

in F Dorm)"? The defendants seek to increase this population capacity in F Dorm by fourteen

inmates as set forth:

•

F Dorm -- increase to sixty-eight (68).

Therefore once F Dorm is constructed, the total capacity for Medium II shall be three

hundred sixty (360).

The Defendants have now verified that the aforementioned increases would not· be

detrimental to the infrastructure ofthe facilities and would improve prison management. Plaintiffs'

counsel has inspected the facilities and confirmed that the requested popUlation increases would not impair or infringe upon inmates' rights .
. Accordingly, it is stipulated and agreed that Section III, 11 D. 2 is modified to the extent that

the population capacity at the Medium II facility shall hereinafter be two hundred ninety-two (292)

and that after F Dorm is constructed the population capacity at the Medium II facility shall be three

2The dormitory referred to as "F Dorm" in the Settlement Agreement and in this StipUlation is now known as E Dorm on the Department's operational rosters.
2

II

hundred sixty (360).

I I
I !

All other provisions of the Agreement remain in full force and effect.

II : i

Dated: t1tM4 If, 1118"

I 875 Connecticut Avenue Suite 410 .Washington, DC 20009

G. Glynn #3800 As '5, t Attorney General I 50 South Main Street Providence, RI 02903
) -vt

Approved and So Ordered:
Date: 8 JIB;> IT?
Lincoln C. Almond is now Governor of the State of Rhode Island

3

,t O/J- \

).'"

UNITED STATES DISTRICT COURT

". (

FOR THE DISTRICT OF RHODE ISLAND

LEGAL COUNSE

~, NICHOLAS A. PALMIGIANO, et aJ

~"'~ ~ v.
LINCOLN C. ALMOND, et aJ

"'4; 1 '1 1)
, o,~ •

THOMAS R. ROSS, et al

~e 1$1_ ,

'qfl(f

v.

JUN 3 - 2002
DEPT. OF CORRECT/or
C. A. NO. 14-0172
C. A. NO. 75-0032

LINCOLN C. ALMOND, et al

STIPULATION WHEREAS, the parties entered into a Final Settlement Agreement dated March 18,
1994 and approved by the United States District Court For The District Of Rhode Island on
July IS, 1994 (~copy is attached); WHEREAS, there have been recent popUlation increases at the Women's facility
(known as Gloria McDonald facility)l and Intake Service Center South ("ISC") facility which were covered by the Final Settlement Agreement;
WHEREAS, Defendants have submitted a plan to increase the capacities in the Women's Gloria McDonald facility and the Intake Service Center South facility by reconfiguring certain space and usage in said facilities;
Now, the parties agree to the following amendments of the Final Settlement Agreement which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in June, 1995, further amended on December 20, 1996 and approved by the Court on January 3, 1997. (Copies of said Modifications are attached).

1 The Gloria McDonald facility was previously known as the Women's Jonathan Arnold facility in the Final Settlement Agreement.

.. ,

The Final Settlement Agreement, as modified in June 1995, provided in Section III, 1D.3

that the population capacity at the Women's Prison Facility shall be one hundred twenty-

five (125) and was further modified in December, 1996 so that the population capacity at

the Women's Prison Facility (known as the Gloria McDonald facility) was increased to 'one

hundred forty-five (145). The Defendants now seek to increase the population capacity in

the Women's Division by eight (8) beds. Therefore, the total capacity for Women's

Division shall be one hundred fifty three (153) beds.

The new configuration will involve the conversion of three (3) rooms. These rooms

are currently under-utilized and their conversion to living quarters will not impact

programming or programming space.

The Final Settlement Agreement, dated March 18, 1994, in Section ill, 1DA

..;...

.
:

provided that the ISC South population capacity shall be two hundred fifty-eight (258).

The amended Settlement Agreement, dated December 20, 1996 increased the population

capacity in ISC South to three hundred sixteen (316). The Defendants now seek to increase

the population capacity in the ISC South facility by forty-eight (48) beds. Therefore, the

total capacity for ISC S shall be three hundred sixty-four (364).

The Defendants have now verified that the aforementioned increases would not be

detrimental to the infrastructure of the facilities and would improve prison management.

Plaintiffs' counsel has inspected the facilities and confirmed that the requested population

increases will not impair or infringe upon inmates' rights.

Accordingly, it is stipulated and agreed that Section III,1 D.3 is modified to the

extent that the population capacity at the Women's Gloria McDonald facility shall
hereinafter be one hundred fifty-three (153) and Section III, 1D.4 is modified to the extent

that the population capacity at ISC South shall hereinafter be three hundred sixty-four

\

,

(364), permitting total double ceIling in all modules.

All other provisions of the Agreement remain in full force and effect.

Dated: May 16, 2002

Attorney for the Plaintiffs
~.
Alvin J. Bro tein, Esq. 6618 31st Street, N. W Washington, DC 20009
Approved and So Ordered:

Attorneys for the Defendants
1?dwttJl~
FUchard B. Woolley,~
Deputy Chief Civil Division Department of the Attorney General 150 S. Main Street Providence, RI 02903
a~aij'~\
AIithon;T:ciPriano, Esq. tbtt "-
Chief Legal Counsel Rhode Island Department
of Corrections 40 Howard Avenue Cranston, RI 02920

"'03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIyIANO, et al

v.

C. A. NO. 74-0172

LINCOLN C. ALMOND, et al

THOMAS R. ROSS, et al

v.

C. A. NO. 75-0032

LINCOLN C. ALMOND, et al

STIPULATION WHEREAS, the parties entered into a Final Settiement Agreement dated March 18, 1994 and approved by the United States District Court For The District Of Rhode Island on July 15, 1994. (Copy is attached): WHEREAS, there have been recent population increases in the segregation unit at Medium Security (known as the John J. Moran Medium Security facility), which was covered by the Final Settlement Agreement. WHEREAS, Defendants have submitted a plan to increase the capacity in the segregation unit of the John J. Moran Medium Security facility by adding an additional overhead bunk bed in each cell. WHEREAS, Defendants have assured Plaintiffs counsel that any segregation inmates who will be double celled will first be carefully screened to minimize any potenti~l for risk or danger, and any such double celling in segregation will be limited in duration to a maximum period of thirty (30) days for any single incident. Now, the parties agree to the following amendments of the Final Settlement Agreement, which was dated March 18, 1994, approved by the Court on July 15, 1994, and subsequently amended in Jl,lne, 1995, further amended on December 20, 1996,

approved by the Court on January 3, 1997, and further amended and approved by the

Court on May 31, 2002. (Copies of said Modifications are attached).

The Final Settlement Agreement, dated March 18, 1994, in Section III, , D. 1

provided that the John (Moran Medium Security facility segregation unit capacity shall

be twenty- four (24) cells, single bunked. The Defendants now seek to increase the

segregation unit capacity in the John 1. Moran Medium Security facility by twenty-four

(24) beds. Therefore, the total capacity for the John J. Moran Medium Security facility

segregation unit shall be forty-eight (48) beds.

The Defendants have now verified that the aforementioned increases would not be

detrimental to the infrastructure of the facilities and would'improve prison management.

Plaintiffs counsel has reviewed the plan to increase said capacity and agreed that the
requested population increjiSes will not impair or infringe upon inmates' rights.

Accordingly, it is stipulated and agreed that Section III, , D. 1 is modified to the

extent that the population capacity in the segregation unit at the John J. Moran Medium

Security facility shall hereinafter be forty-eight (48) beds, permitting total double celling

of the entire module.

All other provisions of the Agreement remain in full force and effect.
Dated: ftlb--.-iVl 1 .3 I ],{)O ?

Attorney for the Plaintiffs
lit?1;brny(p :
Alvin 1. Br stein, Esq.
6618 31st Street, N. W. Washington, DC 20009

Attorneys for the Defendants
-;;k~fJ;.~ ~J L,{/~(j
Richard B. Woolley, Esq. +fIefS Ol.
Special Assistant Attorney General
,', ~""W~.'~ Dept. ofthe Attorney General
$_SOuth Main Street . >-.
r
Anthony A. Cipriano, Esq. Chief Legal Counsel Rhode Island Dept. of Corrections 40 Howard Avenue
Cranston, R. 1. 02920

Approved and So Ordered:
.§k"d~~ £!~ Ronald R Lagueux Senior United States Judge Date: 41t, /(5 3·

•
·0'
0030c 0029c

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

NICHOLAS A. PALMIGIANO, et ale
v.
BRUCE G. SUNDLUN, et ale

C.A. No. 74-0172 .0

THOMAS R. ROSS, et ale v.
BRUCE G. SUNDLUN, et ale

C.A. No. 75-0032

I. INTRODUCTION This case has had a long and complicated historyl. After an extended trial in 1977, this Court declared that the entire Rhode Island prison system was unconstitutional and entered an extensive remedial order2 . During the next fifteen years, there were

1 ~, ~,othe series of decisions variously reported as Palmigiano v. Garrahy or Palmigiano v. DiPrete, 443 F.Supp. 956 (D.R.I. 1977); 448 F.Supp. 659: 466 F.Supp. 732, aff'd, 616 F.2d 598 cert. ~., 449 U.S. 839; 599 F.2d 17: 639 F.Supp. 244; 700 F.Supp. 1180 (1988); 710 F.Supp. 875 (1989); aff'd, 887 F.2d 258 (1st Cir. 1989}i 737 F.Supp. 1257 {D.R.I. 1990}.
2 Palmigiano V. Garr~hy, 443 F.Supp. 956, 986 (D.R.I. 1977).

modifying orders, adjudications of contempt against the defendants (various state officials) and the imposition of sanctions. Most of the problems during those years were related or attributable to _.O.\'er_c~Qwding-.il}the ~hQde Island ~rison system. In every instance, the Court found that the overcrowding had a serious deleterious impact on ·medical care and environmental health and safety and on numerous occasions, experts supported those findings 3
On January 10, 1991, Senior United States District Judge, Raymond J. Pettine, who had presided over this case from its inception. conducted a chambers conference with all the parties on the occasion of his transferring the case to United States District Judge Ronald R. Lagueux. At that time. Judge Pettin~ urged a comprehensive approach to the problems of prison overcrowding and, in a final order, stated: "Now is the time to institute safeguards that will forestall and hopefully prevent a ,recurrence of the past frustrating, costly and devastating ills."
The parties have had a series of meetings during the. past two years and the current defendants., Governor Bruce G. Sundlun and Department of Corrections Director George A. Vose, Jr., have begun a comprehensive approach to the solution of overcrowding problems in Rhode Island's prison system. Among other things, on December 3, 1992, Governor Sundlun, signed an Executive order 4 creating a
3 ~, ~, Palmigiano v. Garrahy, 639 F.Supp. 244 (D.R.I. 1986). 4 No. 92-26.
-2-

Governor's Commission to Avoid Future'Prison Overcrowding and Terminate Federal Court Supervision Over the ACr S , This Commission was charged with developing a detailed action plan including legislative and policy initiatives for dealing with the state's prison population. The Commission was also directed to consider the creation of a permanent mechanism to maintain the ACI prison population within its capacity on an ongoing basis.
On February 15, 1993, the Commission issued a detailed report together with recommended changes in the Rhbde Island criminal justice system and recommended legislation. The Rhode Island General Assembly, thereafter, enacted legislation providing for int:E!rl1lec:}iat_~ ~~Qct~qns, ang a Crilllj,nal Just:icE! Overl:i~gh~ Committee. 6
5 The "ACI," or Adult Correctional Institutions, is the common term for the entire Rhode Island prison system. 6 Title 12, Chap. 19, Sec. 23.1 et seg. of the General Laws of the State of Rhode Island provides for a wide range of intermediate punishments.
The second bill adopted by the legislature, Title 42, Chap. 26, Sec. 13 et seq., creates a criminal justice oversight committee responsible for coordinating policies of the components of the criminal justice system to control overcrowding in times of crisis. The committee would set annual goals, monitor developments quarterly, especially those related to potential overcrowding, and urge the adoption of appropriate and statutorily authorized steps to reduce overcrowding in a time of crisis.
-3-

The parties believe that these recent initiatives by the defendants and other state officials are consistent with important principles of federalism, create the potential for establishing the
ACI as a constitutional prison system, and may result in comple..tely
restoring authority over a constitutional state prison system where it belongs, in the hands of responsible state officials.
The defendants have recently discontinued the use of the Special Needs Facility (also known as Old Medium Security) as a secure facility, and may plan to convert that facility into a reintegration facility, a facility designed to house a variety of prisoners and programs within the defendants' framework of interm~diate sanctions.
Because the parties are interested in resolving plaintiffs' concernr-.about areas of possible non-compliance, in addressing
r
proposals that defendants might have for modification of existing orders, and in addressing the ultimate termination of compliance monitoring and the Court's active supervision of the remedial orders in this cause, the parties hereby enter into this Settlement Agreement on this 18th day of ~arch, 1994.
II. DEFINITIONS
A. "Adequate Programming" shall mean the level of programming being provided at the time of the notification of substantial compliance by the Monitors as provided for hereafter.
-4-

B. "Decrees" shall mean the Order of the Court entered on August 10, 1977, Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977) and all subsequent Orders in this case governing conditions or practices at the ACI.
C. "Defendants" shall mean the Governor of the State of Rhode Island and the Director of the Department of Corrections.
D. "Defendants' Counsel" shall mean the Attorney General for the State of Rhode Island or his designee, the Executive Counsel to the Governor of the State of Rhode Island or her designee, and Chief
, " Legal Counsel to the Department of Corrections or his designee.
E. "Double-celling" shall mean the placement of two (2) prisoners in a cell.
F. "Existing Faci Ii ties" or "Faci li ties" shall mean the following facilities housing members of the plaintiff class which are in existence on the effective date of this Settlement Agreement. They are as follows:
Medium Security Facility (MED) Special Needs Facility (SNF) Women's Jonathan Arnold (Women's) Intake Service Center South (lSe SO) Intake Service Center North (lSC NO) High Security Center (HSC) Maximum Security Facility (MAX) It is understood that some members of the plaintiff class are housed in ACI facilities not listed above. Those facilities are the Minimum Security Facility, the Work Release ~acility (Bernadette Building) and the Women's Work Release Facility (Dix Building). Although those latter facilities are included in the various' remedial orders of the Court, they have not been the subject of population overcrowding concern.
-5-

G. "Newly Constructed Facility" shall mean any facility housing members of the plaintiffs' cl~ss that is completed after the effective date of this Settlement Agr~ement and shall include additions to an existing facility.
H. "Plaintiffs" shall mean prisoners housed at the Adult Correctional Institutions.
I. "Plaintiffs' Counsel" shall mean Alvin Bronstein, Mark Lopez and other lawyers employed by the National Prison Project of the American Civil Liberties Union Foundatibn, 1875 Connecticut Avenuue, NW, Ste. 410, Washington, D.C. 20009.
J. "SUbstantial Compliance" shall mean that the defendants have generally fulfilled the remedial provisions of.the August 10, 1977 Order, as amended, and all subsequent orders of this Court, governing the delivery of medical, dental and mental health services; environmental health and safety cpnditions and practices; and, management, security and inmate activity issues. In the event that achieving substantial compliance requires the defendants to make any capital improvements,. alterations, or renovations, they may· achieve substantial compliance in the following manner. The· defendants shall prepare and submit to plaintiffs' counsel a written document which sets forth in detail a plan for the improvement, alteration, or renovation, the amount of funds required, the source of those funds, and a specific timetable for completing the work. If counsel for plaintiffs approve of the foregoing plans in writing, the defendants shall be entitled to a finding of substantial
-6-

compliance from the date of such written approval rather than the actual completion of the capital improvement, alteration, or renovation. Plaintiffs' Counsel shall not unreasonably withhold approval.
Ill. RESTRICTIONS ON OVERCROWDING
A. Areas not designed and built for housing prisoners shall· not be utilized for the housing of prisoners. For example, prisoners shall not be housed in corridors, hallways, dayrooms, program space, office space, recreation space or general purpose space.
B. Except as provided in Paragraph C of this Section III,
,
defendants agree· that they wi 11 not ass~.gn more than one person to. a cell in existing facilities. Defendants may assign two prisoners to a cell in newly constructed facilities provided that the prisoners are not classified as maximum security; that such cells shall adhere to the space· requirements as set forth in the American Correctional Association Standards in effect at the time of execution of this
A~reement7; and such cells allow prisoners direct access to toilet
and hand washing facilities without assistance from a staff membe~.
7 The reference in text is to the American Correctional Association Standard 3-4126 (1991) and 3-4128-1 (1994), copies are attached to the Agreement as Appendix A.
-7-

C. 1. Defendants shall be permitted to double-cell some prisoners in HSC, Medium, ISC NO and ISC SO, as detailed in Paragraph D of this Section III, provided that the specific conditions set forth in Paragraph D are met. Units designated as protective custody units in those four facilities may be double-celled.
2. Defendants shall ensure that sound classification practice and principle are followed before deciding to double-cell any particular prisoner.
D. The designated maximum population capacities for the following respective housing areas shall not be exceeded, excep~ in the event of an emergency as set forth in Paragraph G.

l. Facility: Medium

Capacity: 288 Cells Double Bunked

576

288 Cells Single Bunked

288

24 Segregation Cells

Single Bunked

24

4 Medical Cells

4

_6 Medical Ward

~

TOTAL:

B9B

The double-celling in this facility is conditioned upon the

installation of Two Hundred- and Eighty-Eight (288) beds to create

cells adaptable to double-ceIling. Such cells shall be divided

proportionally among the six (6) regular housing units and

double-ceIling is contingent upon each prison-er being adequately

programmed and being allowed ten (10) hours out of cetl time daily.

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2. Facility: SNF (Only if used as a secure facility)

Capacity: A, B, C Dorms with 54 Inmates Eac'h 162

o Dorm

32

A Honor Dorm

20

Cell Block CBS

20

Cell Block DCB

.-l.6

TOTAL:

250

The population capacities above are conditioned upon the

defendants completing renovations to the following: 0 Dorm toilets;

additional showerS in Dorms A, Band C; toilets and showers in A

Honor Dorm, all as called for in Special Needs Facility

Recommendations (Powitz Report of 3/12/92)8.' If F Dorm is

constructed, capacity can be increased to Three Hundred and Four

(304) (Fifty-four (54) inmates in F Dorm); if adequate toilet

fatilitie~ and ventilation are installed in E Dorm, c~pacity can be

further increased to Three Hundred. and Twenty-Folfr-(324) (Twenty

(20) inmates in E Dorm).

3. Faci li ty: Women's

Capacity: Beds

106

Segregation Cells

-.i

TOTAL:

110

If exhaust fans are installed and toilet areas are repaired as

called for in Women's Division Recommendations #2 and #3 (Powitz

Report of 3/12/92) the capacity may be increased to One Hundred and

Twenty-Five (125).

8 All references to Powitz Report are to a report and
recommendations made by Robert Powitz, the defendants' environmental health expert. The report dated March 12, 1992, is attached hereto as Appendix B.

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4 . Facility: Capacity:
TOTAL:

ISC South 72 Cells Double Bunked 72 Cells Single Bunked
24 Segregation Cells Single Bunked
8 Medical Cells 10 Bed Medical Ward

144 72
24 8
--.lD 258

The population capacities above are contingent upon the

following:

a) limiti~g the ·use of this facility to confine pretrial

detainees and convicted prisoners but only for a maximum of

One Hundred and Twenty (120) days after sentencing (except

for protective-custody prisoners permanently assigned to

ISC). Pretrial detainees shall be separated from convicted

prisoners;

b) double-ceIling only up to Fifty percent (50\) of the

cells in each module';

c) each prisoner except those identified in Section III

D(4)(d) (as stated below), shall be allowed Six and a

Quarter (6.25) hours out of cell time daily;

d) each protective custody prisoner who is sentenced and

classified shall be allowed ten (10) hours out of cell time

daily;

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e) implementation of upgrade corrections to ventilation system as called for in ISC South Recommendations #1 and #4 (Powitz Report of 3/12/92). If these contingencies are not complied with, all cells must be single occupancy for .a total capacity of One Hundred and Sixty-Eight (168) (exclusive of medical beds).

5. Facility: ISC North

Capacity: 392 Cells Double Bunked

1..B..i

TOTAL:

784

The population capacities above are contingent upon the

following:

a) limiting the use of this facility to confine pretrial

detainees, and convicted prisoners but only for maximum of

One Hundred and Twenty (120) days after sentencing (except

for protective-custody prisoners permanently assigned to

ISC). Pretrial detainees shall be separated from convicted

prisoners;

b) each prisoner, except those identified in Section III,

I?t?1!~)j.~Eated below), shall be allowed Six and a

Quarter (6.25) hours out of cell time daily;

c) each protective custody prisoner who is sentenced and

classified shall be allowed ten (10) hours out of cell time

daily.

6. Facility: Capacity:
TOTAL:

HSC

48 Cells Double Bunked 96

24 Cells Single Bunked 24

24 Segregation Cells

Single Bunked

24

4 Psychiatric Cells 4

8 Bed Hospital Ward --.6.

156

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The double-celling in this facility is limited to protective

custody prisoners and conditioned upon the installation of

forty-eight (48) beds to create cells adaptable to double-celling.

Each prisoner being double-celled shall be adequately programmed and

allowed ten (IO) hours out of cell time daily. Under no

circumstances shall maximum custody prisoners be double-celled at

this facility, except those housed in the protective custody unit.

7. Faci li ty: Capacity:
TOTAL:

Maximum Cells Single Bunked
Segregation Ceils Single Bunked Bed Medical Ward

411 39
--1.L
466

If the ten (10) rear cells are renovated to contain sufficient natural light and ventilation to meet APHA Standards 9 in effect at

the time of execution of this Agreement, capacity can be increased

to Four Hundred and Seventy Six (476) inma~es.

E. Dormitories used for the housing of prisoners shall provide

each occupant with at least twenty-five (2S) square feet of

unencumbered floor space. This space requirement shall not include

space encumbered by a bed or locker nor shall it include any

available program space or dayroom space. These limitations shall

9 Standards of the American Public Health Association.

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not apply to newly constructed minimum security and work release tacilities and newly constructed minimum security and work release facilities would be subject to the American Correctional Association Slandards in effect at the lime of execution of this Agreement. A copy of those standards are set forth in Appendix A.
F. In entering into this Settlement Agreement, the parties acknowledge that the safety and security of prisoners and staff are a matter of mutual concern. The parties further acknowledge that certain conditions and eventualities ~re within the contemplation of the parties. These incl~de the possibilitt that the Rhode Island jail and prison system may experience a substantial increase or decrease in its population; that the rate of crime or conviction within the State of Rhode Island may continue at its current rate or increase or decrease substantially; that the incidence of parole may increase or decreas~ substantially; that the cost of construction of new facilities or renovation of existing facilities may increase or decrease substantially; that substantial difficulty mayor may not be encountered by the Rhode Island Department of Corrections in attracting and employing security and non-security staff; and that substantial construction delays mayor may not occur with respect to the renovation of existing units or the construction of new facilities, units or additions thereto. A condition or eventuality within the contemplation of the parties does not constitute a changed circumstance.
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.('-.' Paragraphs A through E inclusive of Section III shall be

enforceable in any tederal or state court of competent

jurisdiction. The defendants shall comply with the population

capacities set forth in Section III of this Settlement Agreement

except in the following circumstances:

1. Any provision establishing population capacity or

limits may be suspended, even in the absence of an emergency, if the

suspension is temporarily necessary because of actions by members of

the plaintiff class or if suspensions are sporadic or isolated in

nature, provided that the suspension lasts no longer than five (5)

consecutive days. Any such suspension, including the reason

therefore, shall be reported to Plaintiffs' Counsel as promptly as

is reasonably possible following the commencement of the suspension.

2.

a) In the event of an emergency that makes

substantial compliance with any of the terms of

this Settlement Agreement impossible,

extraordinarily difficult or unfeasible, it may be

necessary to suspend temporarily, even beyond five

(5) consecutive days, any provision that

establishes population limits of this Settlement

Agreement. In such event, the Director of the

Rhode Island Department of Corrections shall .

formally declare a state of emergency, and, as soon

as practical but no later than five (5) days after

_ -14-

------------ ._----_._._----------_.

- - - . . .

.,,- -.

such declaration, notify Plaintiffs' Counsel of the reasons that justified the suspension of any provision that establishes population limits of this Settlement Agreement. The defendants shall also notify Plaintiffs' Counsel of the expected duration of the suspension and the plan of the defendants to restore full operation of the Settlement Agreement. b) For purposes of this Settlement Agreement, an emergency is defined as a circumstance caused by a riot, fire, hurricane or similar event not caused intentionally by the defendants, their agents, or employees, that makes substantial compliance with the provisions that establish population limits of, this Settlement Agreement temporarily impossible, extraordinarily difficult or unfeasible. Construction delays or labor disputes not caused intentionally 9r reasonably anticipated by the defendants may constitute an emergency, but legislative, executive, or administrative policy decisions not to appropriate funds or allocate resources to the housing of prisoners shall not justify the declaration of an emergency. In addition, legislative or judicial decisions regarding sentencing shall not justify the declaration of an emergency.
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c) In the event that the defendants seek to continue emergency suspension of any provision that establishes population limits of this Settlement Agreement for a period of time greater than ninety (90) days without the agreement of plaintiffs' counsel, the defendants may seek the Court's permission to suspend any provision that establishes population limits of this Settlement Agreement. In any such motion, the defendants bear the burden of persuasion. 3. If the plaintiffs' counsel believe that any suspension o~ any provision of this Settlement Agreement that establishes population limits or the duration of the suspension is unjustified, unreasonable, or taken in bad faith, they may request appropriate relief from the Court. In such event, the plaintiffs bear the burden of persuasion.
IV. MEDICAL, MENTAL HEALTH AND DENTAL CARE-
The defendants shall at all times maintain an adequate and constitutional system of medical, dental and mental health care. They shall employ sufficient staff to maintain a primary care system
I
with a 'focus on preventive health care, health maintenance and prospective management of chronic disease.
-16-

V. ENVIRONMENTAL HEALTH AND SAFETY
The defendants shall at all times maintain environmental health and safety practices and conditions that are adequate and constitutional.
VI. MANAGEMENT, SECURITY AND INMATE ACTIVITY
The defendants shall at all times engage in practices and maintain' conditions regarding management, security and inmate activity that are adequate and constitutional.
VII. INDEPENDENT MONITORS
A. The parties hereby designate Dr. ~ambert King and Robert Powitz as independent monitors (Monitors) to observe and report upon substantial compliance with the terms of this Settlement Agreement. These Monitors are experts in, the areas of medical care, environmental health, and fire safety. The Monitors shall observe and assess SUbstantial compliance with the terms of this Settlement Agreement, report to the parties about such substantial compliance, and give advice and recommendations to the parties.
B. In carrying out their' duties, consistent with legitimate requirements of security, the Monitors shall have the following:
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1. unobstructed Access to staff, inmates or nther knowledgeable persons for intervlews or written communication regarding conditions at the facilities covered by this Settlement Agreement. Such interviews or other communication may be held in private, and may be held in confidence by the Monitors. At their discretion, the Monitors may divulge the content or nature of such interviews or communications to the Director of the Department of Corrections and to Plaintiffs' Counsel and Defendants' Counsel;
2. complete and unobstructed access to relevant files, records, reports, memoranda or other documents within the defendants' possession or custody for purposes of measuring substantial compliance with the terms of this Settlement Agreement;
3. unobstructed access to tour and inspect the institutions.
C. The Monitors shall not be subject ~o dismissal except upon agreement of all parties or by the Court upon motion of one of the parties and upon a showing of good cause.
D. The reasonable costs ~f the Monitors shall be borne by the Department of Corrections.
E. In the event that either Dr. Lambert King and/or Robert Powitz resign, become incapacitated, or for any other reaspn cannot perform their duties, the parties will mutually select a substitute Monitor or Monitors.
-18-

VIII. MONITORING AND COMPLIANCE
A. In no event shall a determination of substantial compliance be made if exceptions to substantial compliance are the result of willful or intentional actions by defendants.
B. 1. Commencing on or about March 18, 1994, the Monitors shall conduct periodic inspections and prepare reports detailing the state of defendants' substantial compliance with the provisions of this Settlement Agreement. The Monitors shall complete their initial inspections and prepare their initial reports within three
(3) months of their appointment. In the event that the three, (3)
month period is unfeasible due to scheduling problems, the time period for the Monitors to submit their reports may be extended by the agreement of the parties, but in no condition shall i~ be extended beyond six (6) months.
2. The periodic inspections of the Monitors shall continue until they notify defendants' counsel and plaintiffs' coun~el that the defendants are in substantial compliance as defined in this Settlement Agreement.
C. Plaintiffs' Counsel will review the state of substantial compliance .under Section VI, Management, Security and Inmate Activity within three (~) months of signing this Settlement Agreement, and resolve any compliance issues in these areas directly with the defendants.
-19-

D. Incidents of non-compliance do not necessarily prevent a finding of substantial compliance. The determination of substantial compliance shall take into account the extent to which exceptions to substantial compliance are sporadic or iso·lated in nature, are unintentional, are the temporary result of actions by the members of the plaintiff class and are promptly and properly addressed by corrective action.
E. This Settlement Agreement shall be submitted to the Court for its review and approval pursuant to Rute 23 of the Federal Rules of Civi I ·Procedure. The parties shall r~commend to the Court a method of complying with the notice provisions of Rule 23(d) and
(e) .
F. 1. The parties shall have the opportunity to challenge the determinations of the Monitors, pursuant to Section VIII; Paragraph B of this Settlement Agreement, and plaintiffs' counsel, pursuant to Section VIII, Paragraph C of this Settlement Agreement. The Court shall establish a procedure, if necessary, by which any hearing on that issue shall be conducted.
2. Upon review of the evidence, the Court will make a determination whether the defendants are in sub.stantial compliance.
G. Upon receipt of the Monitors' reports of substantial compliance, the defendants shall file with the Court a motion to dismiss this lawsuit and dissolve any outstanding Decrees in Palmigiano v. Sundlun, except the provisions of Section III of this Settlement Agreemen~ (Overcrowding Restrictions).
-20-

H. 1. For the first four (4) months following the Court's approv~l of a determination of substantial compliance, as set forth above, the defendants shal~ forward to plaintiffs' counsel monthly reports and supporting documentation detailing the status of defendants' compliance with Sections III, IV, V, and VI of the Settlement Agreement. The Director of the Department of Corrections shall serve on plaintiffs' counse~ a certificate attesting that the contents of the reports are true and correct, and that the documents submitted in support of them are true and accurate copies of defendants' documents maintained in the ordinary course or operations of the Department.
2. The first such report shall be served on plaintiffs' counsel one (1) month from the date of the Court's approval of the substantial compliance determination.
3. The obligation to file monthly, reports under this section of the Settlement Agreement shall conclude four months after the date on which the Court approves a determination of substantial compliance.
4. Plaintiffs' Counsel shall be afforded sufficient access to the institutions and to the plaintiffs to determine the accuracy of the representations contained in the reports served by defendants.
I. At the end of the four (4) month period set forth in Section VIII, Paragraph H and provided that the defendants demonstrate continuing substantial compliance, the parties, without
-21-

further recourse to judicial proceeding, including appellate reView, shall execute and file a stipulation dismissing this lawsuit and dissolving any outstanding Decrees in Palmiaiano V. Sundlun, except the provisions of Section III of this Settlement Agreement (Overcrowding Restrictions). The provisions of Section III of this Agreement shall survive the aforesaid dismissal and continue to be enforceable in accordance with the provisions of Section III, Paragraph G.
J. Nothing stated herein shall preverit plaintiffs from mdving the court for additional relief or further relief based upon a claim of non-compliance, including a failure to file appropriate monthly' compliance reports and supporting documentation.
IX. PERMANENT STATE PRISON OVERCROWDING CONTROL MECHANISM
A. One of the stated purposes of Executive Order No. 92-26 creating the Governor's Commission to Avoid Future Prison Overcrowding was to terminate ~ederal court supervision over the ACI by having the Commission consider "the creation of a permanent body the purpose of which shall be to maintain the prison population within capacity on an ongoing basis."
B. The State of Rhode Island has created a permanent agency, body, commission or other mechanism (hereafter "State Mechanism") with the authority and power to control prison overcrowding. Accordingly, the par"ties agree that this case, specifically the
-22-

provisions of Section III (Overcrowding Restrictions), shall De retired and placed on inactive status in this Court provided that the following conditions are met:
1. The State Mechanism shall adopt the specific population capacities and restrictions set forth in Section III of this agreement as its own capacities and restrictions.
2. The State Mechanism shall have the authority and power under state law to enforce the aforesaid population capacities and restrictions effectively.
C. 1. The Department of Corrections shall provide to plaintiffs' counsel a quarterly report, in the format of the current "ACI Daily Population Report" form, detailing the actual population of each unit of each facility in the ACI on 'the last day of the quarter for a period of five (5) years after the Court enters the dismissal order, referred to in Section VII+, I, above. 10
2. Each report shall include a signed certification by the Director of the Department of Corrections attesting to the fact that the, aforesaid population capacities and restrictions are being adhered to.
10 This S-year limitation shall only apply to the defendants' obligation to provide quarterly population reports. It does not apply to the defendants' obligation to maintain the population capacities and restrictions referred to. in Section III of the Settlement Agreement.
-23-

3. Plaintiffs waive any attorneys' fees and costs incurred by

them for reviewing these quarterly reports, pursuant to Section IX,

Paragraph C of this Settlement Agreement. No other fees or costs

are waived in this agreement.

D.

In the event that the population of any facility in the

ACI exceeds the capacity limits of Section III for five (5)

consecutive days in a non-emergency situation (Section III,

Paragraph G), the Director shall notify plaintiffs' counsel of that

fact in writing.

E. If the requirements and conditions set forth above in

Section IX, Paragraphs A and B are being fully observed and the

State Mechanism exercises its authority and power to enforce the

population ·capacities and restrictions effectively, the provisions

of Secti~n III of this Settlement Agreement shall not be enforceable

in this Court and· plaintiffs agree not to bring any action or

proceeding to enforce said provisions.

F. In the event that the State Mechanism is disbanded or

discontinued, or loses its authority and power to enforce the

aforesaid population capacities and restrictions effectively, or

fails to exercise its authority and power to enforce the population

capacities and restrictions effectively, the provisions of Paragraph

E of this Section shall be null and void and plaintiffs shall have

the right to seek enforcement of the provisions of Section III.

-24-

x. MISCELLANEOUS PROVISIONS

A. In entering into this Settlement Agreement, the defendants

do not admit or concede that any rights of the plaintiffs under the

Constitution or under the Decrees, are currently being violated at

the ACI. Similarly, the plaintiffs do not make any concessions, now

or in the future, with respect to inmate hou~ing at the ACI except

those expressly provided for in this Settlement Agreement. In

addition, the plaintiffs and defendants are not waiving or

relinquishing any rights that they may have under the Decrees unless

expressly set forth in this Settlement Agreement .

. B. The plaintiffs shall not seek additional relief in

connection with this lawsuit except as expte~sly provided in this

Settlement Agreement. This paragraph shall not preclude the

plaintiffs from seeking to recover reasonable and necessary

attorneys~ fees, expenses, and costs incurred with negotiation or

future enforcement of the Settlement. Agreement.

C.This Settlement Agreement shall not be admissible in

evidence in any proceeding or trial other than for the sale and

limited purpose of enforcement ·of this Settlement Agreement. Rules

407 and 408 of the Federal Rules of Evidence are applicable to this

Settlement Agreement.

D. The defendants shall notify all staff at the ACI facilities

of the terms of the Settlement Agreement.

E.

1. If this Settlement Agreement is approved in its

-25-

e~tirety by the Court, then this Settlement Agreement and the

Decrees of the Court constitute the entire agreement of the

plaintiffs and defendants.

2. If this Settlement Agreement is not ap~r~ved in its

entirety by the Court, then this Settlement Agreement shall be null

and void.

F. This Settlement Agreement is a document which all parties

have negotiated and drafted. Since all parties participated equally

in drafting its terms, the general rule of construction interpreting

a document against the drafter shall not be applied in future

interpretation of this Settlement Agreement.

G.

The Settlement Agreement shall be effective on. the date

of its execution.

Plaintiffs

Al i

Esq.

Mark Lopez, Esq.·

National Prison Project of the

American Civil Liberties

Union Fdn.

1875 Connecticut Ave, NW,

Ste. 410

Washington, D.C. 20009

(202) 234-4830

Date: March 18, 1994

ruce . Sundlun o ern~r,State of Rhode Island
ate Blouse
~ce, RhOd~~2903
~~ ~-"?
George A. Vose, Jr. Director of the Department of Corrections State of Rhode Island 40 Howard Avenue Cranston, Rhode Island 02920 (401) 464-2611
Date: March 18, 1994

-26-

Respectfully submited, Attorneys for Plaintiffs

Attorneys for Defendants

Alvin J ronstein, Esq. Mark Lopez, Esq.
National Prison Project of the American Civil Liberties Union Fdn. 1875 Connecticut Ave, NW,
Ste. 410 Washington, D.C. 20009

Attorney General
E~ . ab~ eth M2urldko/ctkeMhy:ekr. s~ ~
Executive Counsel to the Governor Bruce G. Sundlun State of Rhode Island State House Providence, Rhode Island

Date: March 18, 1994

Anthony A. C prra 0 Associat Director and Chief Legal Counsel Ellen Evans Alexander Deputy Chief Legal Counsel Department of Corrections 75 Howard Avenue Cranston, Rhode Island (401) 464-2246
Date: March 18, 1994

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•

3-41~8

~ AUIUS( 1991. Sinale cells are required ror lamlta assJped 10 maximum Ind dose custod,. All cells la .hlcb lamates are cODnned coororm wltb abe foDona requlremeall:
I. Tbere must be 35 square feet of uaeDcumbered space for fbe slnlle cell occuplnL 2. Whea coanDement exceeds 10 boun per da" there is at leasalO square fed of total floor
space tor the occupaaL 3. "VaeDcumbered space" Is usable space lhalls Dol eacumbered b, turalsblnl or Ilxlurts.
At least ODe dlmensloa offbe aaeacumbered space is DO less thaD seVeD fteL la determln. Inl unencumbered space, aU fidures must be la operational posllion and must provide the following minimum areas per person: bed. plumbing fixtures. desk. and locker. 4. Supervision Is consistent with standard 3-4170.

COMMEN"r. This st:lnd.vd encourages design nexibility and c:reativily by rebting ccU size to the amounl oC unencumbered or Cree sp:ICC provided.

3-4128-1 Ci:d~ugust 1991. Sinlle cellsfrooms and multiple occupanc, cellsfrooms may be used for .. boasinllamata la medium/minimum custodywhen the classification system, celUroom size,
Ind level orsupervision meet the rollowlnl requirements:

1.

Number of Occupants Amount or Unencumbered Space·

35 square fed per OCCUpill1l

2-50

·"Unencumbered space"ls usable space lhat Is not encumbered by furnlsbings orlixtures.

At least oae dimensloa Or the uneacumbered space is ao less tbaa seven tteL In determln.

Inl unencumbered space la the ceU or room. fbe total square rootale is obtained aad fbe
square footage or fixtures and equipment Is sublraded. All fixtures and equipment must

be la operadonal positioD and must provide the followinl minimums per person: bed,

plumbing fixtures (if inside the ceIUroom). desk,locker, and chair or stool.

'.

• ·Sleepingarea parliUons are required Ifmore than rour people are housed in one sleeping area. .

2. When confinement exceeds 10 hours per da,. there Is at least 80 square reet or total noor

space per occupanL

3. Houslnlls in compliance wilh ACA standards 3·4131. 3-4133, 3-4134,3-4137, 3-4144,and

3-4282.

4. Medium security Inmates housed In mulliple occupancy cells/rooms require direct super-

vision. (See liossary ror definition or direct supervision.)

Aclassification syslem Is used to divide the occupants Inlo groups Ihal reduce Ihe probability. of assault and disruptive behavior. At a minimum, the classification system evaluates the' following:

• mental and emotional stability • escape bistory

.,.. '\

R. W. Powitz Be Associates, P.C. p.o. Box 32365
Detroit, Michigan 48232-0365
(313) 972-4580

To: From:

A. T. Wall, Esq., Assistant Director Rhode Island Department of Corrections:
and". Mark J. Lopez, Esq., Staff Counsel American Civil Liberties Union Foundation National Prison Project
Robert w. Powitz~ Ph.D., M.P.H.
consulting Sanitarian

Subject: Environmental Health and Safety Evaluation of Rhode Island Department of Correction facilities: Intake Service center: Special Needs Facility and Women's Facility

Date:

Karch 12, 1992

On March 3rdand 4th, 1992, an environmental health and safety evaluation was made at'the above named facilities within the State of Rhode Island institutional complex. This evaluation was conducted at the request of the state of Rhode Island and the ACLU Natio~al Prison Project. The purpose was to recommend the maximum inmate population carrying capacity of the facilities and make whatever comments on environmental health and safety as appropriate.
Accompanying this consultant during the tour were Mr. Kent Grissom, Sanitarian for the Rhode Island Department of Corrections and Mr. Mark Lopez, Staff Counsel for the ACLU National Prison Project. The writer would like to thank Mr. Grissom and the facility wardens for their cooperation, candor and kind hospitality.
The evaluation consisted of an on-site audit supported by nondestruc~ive sampling of the environment to verify the findings. All sampling was conducted with pre-calibrated equipment in accordance with accepted protocols. The findings of the audit were compared against established standards: the American correctional Association, Standards for Adult Correctional ~nstitutions, Jrd Edition, and, the American Public Health Association, standards for Health Services in Correctional Institutions, Second Edition. The standard which most closely reflected the prevailing conditions was used in determining population density. By enlarge, the
recommendations reflected in this report were by consensus of all parties in the audit tour.

..

The housing and support areas appeared to 'be well-maintained

and clean. The food service facilities were in an exceptionally

sanitary condition; all foods were adequately protected 'and proper

temperatures were being maintained.

. .

Many areas surveyed as part of this audit were scheduled to

undergo renovations. Therefore, tha re~ommendations which follow

are based upon analogous conditions and a plan review. It is

recommended that the facilities be reevaluated after all

modifications have been completed.

Intake Service center:
The South side of the Intake Service center has a capacity of 168 inmates and a current population of 130. There are eight Pennsylvania styled modules: six having 24 cells each in a bilevel configuration, and two have 12 cells each. The facility was originally designed for single cell occupancy with adequate accompanying day space of approximately 35 ft. sq. per inmat~. A typical cell has approximately 70 ft.sq. of which 44 ft. sq. are unencumbered. The ventilation system provides an adequate amount of air to the cell although the amount of fresh air makeup could not be determined. The. cells themselves are positive pressured relative to the day space area. The cell exhaust intake is positioned approximately two feet from the air supply. As a result, there is poor air circulation within the cells. This was verified by a smoke tube test. The temperatures were well within the comfort range. However, the relative humidity was measured at 17', which is considered low: apparently there is no humidification in the ventilation system. Desk and day room lighting was below acceptable standards. . The plumbing system however, was well maintained and adequate.
Reportedly, out of cell activity is approximately five hours per day with 1.5 hours as yard time every other day. Each level of the modules share the day space during the ten hour activity period. When inmates are in the day room, their cells are locked and unavailable as toilet facilities. There are two toilets and two urinals serving the day room area. Showers adj oin the day room toilets and access to them is not restricted.
The on-site laundry facilities are well-designed and adequate to meet most of the laundry needs'of the facility. Inmates do not launder their own personal garments within their cells and there was no evidence of soiled linens, beds or bedding. Personal hygiene supplies are in adequate supply and readily available to the inmates. Smoking is not restricted and there are no cells designated for non-smokers.
The infirmary (which will undergo major renovation) was crOWded, with beds less than six feet apart and total individual space less than 45 ft.sq. per inmate. The room is poorly ventilated; air cirCUlation was barely detectable and smoking was not restricted for the comfort of those inmates with respiratory disease.

The toilets and showers are not accessible for handicapped or

infirm inmates; there are no grab bars or nurses' call button. Bed

heights were not adjusted and there is no infectioricontrol

program.

.

The isolation rooms are positively pressured. The flow of

air is from the room to the corridor. There is no protection of

un infected individuals in the vent of an isolation for a

communicable respiratory disease. There was a Psorid fly

infestation within the room originating from the shower drains.

The intake and committing area is small and the housekeeping

was not at the quality which has been established throughout the

facility.

Feeding of the inmates is centralized. The kitchen and

dining room facilities were extremely ~lean and well maintained.

There was no evidence of vermin, the food temperatures were safe

and food protection was exceptional. Tray preparation was in less

than 20 seconds in a continuous operation.

Although the kitchen has the potential for safely preparing

and serving a.pproximately 2800 meals per day, there are signifi;cant

limitation is space, lack of make up air in the kitchen and poor

exhaust ventilation in the dish washinq room. Space in the kitchen

and servinq lines are limited. Only one ~erving line was in

operation at the time· of this audit. The inmate workers were

somewhat crowded and space was limited in moving heavy and hot

objects. There is inadequate makeup air in the kitchen. The

canopy hoods over the food preparation islands cannot be turned on

during food serving activities. A negative draft is created within

the kitchen bringing in air through the serving doors. The flow

therefore, is from soiled to clean. The ventilation in the dish

washing room is poor. Condensate is not removed due to the

excessive static pressure losses caused by the duct configuration

which serves the dishwasher.

Recommendation;
It is my recommendation that the Intake service Center South, remain single celled and that a population greater than 168 is unacceptable due to the inadequate environmental conditions. The limiting factors include: less than 35 ft. sq. of unencumbered space within the cells and day rooms and the lack of adequate air circulation in the housing areas. In addition, there are only two toilet hoppers available to each module day room. This results in a ratio of 1 toilet to 24 inmates in the day room space. The lack of adequate physical space and poor ventilation in both the infirmary and kitchen limit the amount of activity in each area.
It is my understanding that a compromise position of 250 inmates has been offered. This would increase the density in the day rooms to 36 inmates and reduce unencumbered space in cells to less than 15 ft.sq •• I find this acceptable only if the following conditions are modified and the proposed remodeling completed.

. ,

However, I should emphasize that under no circumstances are the facilities capable of safely housing a population of 336.

Here are the minimum requirements to begin double celling:

1. Optimize in-cell ventilation by redesigning the a.ir intake and exhaust vent grilles. Replace the perforated plates covering the intake and exhaust vents with a secure hardware cloth. This will reduce the static pressure losses and permit greater air
turnover within the cells. An air deflector should be installed
on the air intake vent to direct the flow to the back of the cell
and thereby increasing circulation. In addition, humidification must be provided in the air makeup
system and the day room exhaust needs to be .enhanced to remove smoke and body odors.

2. out of cell activities should be increased to a minimum of ten hours per day. Although this would limit personal unencumbered space within the day rooms, the out of cell activities would offset
the more crowded conditions if the cells were left unlocked. By
doing this, additional toilet facilities would not be needed. However·, if the cells were to remain locked during out of cell time, additional sanitary facilities must be provided by converting two cells on base tier (or toilet use, or installing two additional toilets 'in an area suita~le for surveillance.

3. Since the unencumbered space within the cells will be less than 15 ft.sq., during double cell occupancy, the need to enhance
in-cell conditions becomes essential. only one inmate at a time will have access to the desk and even the floor: the other inmate
will have to use his bed. Therefore, additional lighting needs to be provided so that reading materials can be seen without strain at the bunks.

4. Provide for adequate make-up air within the kitchen facility so that preparation can be carried out during serving times. The ventilation in the dish washinq room needs to be modified or improved to remove condensate from the dish washinq operation.

S. Mak~ immediate modifications in the infirmary to prevent

secondary spread of infectious diseases. particular attention

should be placed on current inmate density and on the establishment

of a comprehensive infection control program.

'

special Needs Facility:
The Special Needs Facility has a capacity of 250. On the day of this evaluation, the population was 238. Reportedly, there will be significant modifications made to the ventilation system and toilet areas: some modifications are also scheduled for the kitchen.

A basement recreation and industries area will be converted into a dormitory similar in size to those in the rest of the facility.
currently, the ventilation is largely passive. window area exceeds standards except at the facili ties lying below grade, lighting is adequate and the facility was very clean· arid well maintained. Temperatures and humidity levels were within the comfort range. The kitchen, although old, has ample space and is in a sanitary condition and well maintained. Feeding is centralized.
The dormitory toilets were clean, well lighted and maintained. However, the ratio of showers to inmates in dormitories A, Band C, are below the older standards of 1:15. Additionally, there is a problem with condensate removal: particularly in Dorm A. The shower area is in a cul-du-sac and has no exhaust ventilation. This has resulted in spalling tiles and peeling paint.
Recommendations;
When construction on the basement dormitory has .been completed; Dorm D toilets renovated; eight additional showers are provided in dorms A, Band C; toilets and showers are installed in l\ Honor Dorm; and, adequate toilet facilities and ventilation installed in Dorm E, the capacity of this facility can be 324. viz. :
Dormitory A, B, C and F: 54 inmates each: Dormitory 0: 32 inmates: Dormitory AH: 20 inmates: Cell Block DCB: 16 inmates; Cell Block CBS: 20 inmates, and D~rmitory E: 20 inmates.
Women's Facility:
The Women's Facility has a current capacity of 110. At the time of this evaluation, the count was 98 and there were 180 beds within the facility. The kitchen feeds approximately 200 inmates per meal. Although the kitchen is old, paint is peeling, and th~ storage space is inadequate, the overall sanitation was exceptionally good. It is understood that this facility will undergo remodeling and several pieces on new equipment will be installed at that time.
The inmate housing has no ventilation system. The air exchange is passive, heat cannot be regulated (temperatures in excess of 85 degrees with relative humidity of 7t were measured). There are no toilets in the sleeping rooms. The correctional officers open the doors upon request or provide for toilet access once an hour during· lockdown and sleep hours. The toilet in 0 wing has a leak in the ceiling and the finish on the lavatory island has been damaged from chronic wetness.

., ,

Recommgndationi

Under present conditions the capacity of the building (110
inmates) should not be exceeded. The limiting factors include the lack of ventilation throughout the bu~lding, the space limitation
in the kitchen and the below standard ratio of toilet and personal hygiene facilities per inmate.
I believe that the capacity of the building can be raised to 125 when the following modifications and reconstruction is completed. The additional carrying capacity can be absorbed in the 17 larger dormitory rooms. These rooms currently have a capacity for four inmates each. However, the space standards would not be compromised if a fifth inmate were to be placed in these rooms.
To safely house the any inmates within the building, the following recommendations are offered:

1. The inmates should have· free access to the toilets at all

times. The configuration of the wings will permit adequate

surveillance to monitor movement during the evening and night

shifts.

.

2. Exhaust fans shoul~ be immediately installed to help modulate

temperatures and remove\~moke and odors from the sleeping rooms.

since the ventilation is only passive, a number of sleeping rooms

should be designated as smoke free for non-smoking inmates·.

A study to install a building-wide ventilation system should

be undertaken and completed within a time-frame acceptable to all

parties.

'

3. The toilet areas need to be repaired and exhaust ventilation installed within the shower rooms. The floor finish within the shower room in the segregation wing needs to be improved so that it can be effectively cleaned and sanitized.

4. Where security is not an issue, the dorm rooms should have a table and chairs so that inmates can write letters and engage in quiet activities during in cell times.

General Recommendations:

Although the fire drills and evacuation procedures are well documented and follow a rigid schedule, there are several conditions throughout the facilities which pose a fire hazard; emergency egress is of particular concern. For instance, stairwell doors were propped open and room egress blocked by desks and· chairs; ease of egress was also restricted in some of the domicile· areas. It is strongly suggested that a full-time fire marshall be hired for the complex. This individual can monitor fire loading
and review remodeling plans for compliance with Life Safety Code 101.

A study should be unde+taken to review cleaning products used for general sanitation particularly in the food preparation areas. Phenolic disinfectants are both toxic and polluting and should be replaced with a tuberculocidal quaternary detergent/disinfectant. Several products do not "appear to be compatible with one another
Abrasive cleansers, when used on vitreous china will abrade the surface. Once scored, it provides harborage for bacterial growth, formation of mineral crystals and organic stain. Additional safe cleaning compounds are needed for effective cleaning. By standardizing cleaning materials, overall sanitation and safety can be further improved, cost can be minimized, finishes protected, and pollution abated.
Please call me if clarification on any of the recommendations _ is necessary or if I might be of further service to you.
Respectfully submitted,
Robert W. Powitz, Ph.D., M.P.H. Consulting Sanitarian

0055c/54

RECEIVED

UNITED STATES DISTRICT COURT

CLb<K

FOR THE DISTRICT OF RHODE ISLAND'- S. D!ST:::!CT COURT

DISTr.:ICT 0F R. I.

NICHOLASA. PALMIGIANO, et al.

C.A. No. 74-0172 1-

v.

BRUCE G. SUNDLUN, et al.

THOMAS R. ROSS, et al.

C.A. No. 75-0032

v.

SRUCE G. SUNDLUN, et al.

ORDER

The parties joint Motion for Determination of

Compliance was heard hefore Judge Ronald R. Lagueux on December.

6,1994. It is

ORDERED, ADJUDGED AND DECREED

that the parties Motion for Determination of

Compliance is hereby granted.

ENTER

PER ORDER

Prepared by:
. ~h"~'/Y / / / / . , /'L.'-::-:~ Ma~u~re~e~n~--------(#-3-8-0-0- ) --Special Assistant Attorney General 72 Pine Street Providence, RI 02903 (401) 274-4400

 
 448 F.Supp. 659 (1978)
Nicholas A. PALMIGIANO et al. v.
J. Joseph GARRAHY et al. Thomas R. ROSS et al. v.
J. Joseph GARRAHY et al.
Civ. A. Nos. 74-172 and 75-032.
United States District Court, D. Rhode Island.
March 28, 1978.
6601 *660 *661 Robert B. Mann, Providence, R. I., Matthew L. Myers of the National Prison Project of the ACLU, Washington, D. C., for plaintiffs.
William G. Brody, Sp. Asst. Atty. Gen., Providence, R. I., Valentino Lombardi, R. I. Dept. of Corrections, Cranston, R. I., for defendants.
OPINION
PETTINE, Chief Judge.
This matter is before the Court upon plaintiffs' motion that the defendant Department of Corrections be held in civil contempt for failure to comply with paragraphs 5(a) and 5(c) of the Court's Order of August 10, 1977, Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977).
After almost a decade of repeated and protracted litigation over the conditions at the Rhode Island Adult Correctional Institutions (ACI),[1] this Court found, in its Opinion of August 10, 1977, that conditions at the ACI constituted cruel and unusual punishment in violation of the Eighth Amendment.[2] It noted that the
lack of sanitation, lighting, heating, and ventilation, and the noise, idleness, fear and violence, and the absence or inadequacy of programs of classification, education, physical exercise, vocational training or other constructive activity create a total environment where debilitation is inevitable, and which is unfit for human habitation and shocking to the conscience of a reasonably civilized person. Palmigiano v. Garrahy, at 979.
662 *662 In its Order of August 10, 1977 the Court therefore directed defendants to make significant changes in facilities and environment, classification of inmates, and educational and vocational program opportunities throughout the institution. The Court set out a timetable for meeting the various requirements of its Order and required defendants to report monthly on their progress towards achieving compliance.
Finally, the Court appointed Allen F. Breed, a nationally recognized expert in the field of corrections, to serve as its Special Master pursuant to Fed.R.Civ.P. 53. By the Court's Order of Reference dated October 27, 1977, the Master was charged with responsibility for reporting to the Court on defendants' efforts toward achieving compliance. He was authorized to consult with and advise defendants and to make appropriate recommendations to the Court regarding supplemental relief.
The specific issues presently before the Court involve the reclassification of the inmate population. In its original Opinion, the Court stressed the importance of reclassification to the entire prison program:
Classification is essential to the operation of an orderly and safe prison. It is a prerequisite for the rational allocation of whatever program opportunities exist within the institution. It enables the

institution to gauge the proper custody level of an inmate, to identify the inmate's educational, vocational, and psychological needs, and to separate non-violent inmates from the more predatory. These goals are recognized by state law, which provides that classification shall serve a rehabilitative function. Classification is also indispensible for any coherent future planning. Palmigiano v. Garrahy, at 965. (footnote omitted)

Therefore, as part of the August 10 Order, the Court directed that:

5. (a) Defendants, not having classified prisoners according to state law, shall, within six months from the entry of this order, reclassify all prisoners in the Rhode Island penal system.

. . . . .

(c) Defendants shall, in the reclassification process, arrange for personal interviews of each prisoner and gather all pertinent information about each prisoner's community and institutional life, including, but not limited to, the following:

1. the age, offense, prior criminal record, vocational, educational and work needs, and physical and mental health care requirements of each inmate;

2. special needs arising from age, infirmity, psychological disturbance or mental retardation, requiring transfer to a more appropriate facility, or special treatment within the institution; and

3. eligibility for appropriate transfer to a pre-release, work-release, or other community-based facility.

Defendants were to have complied with this portion of the Order by February 10, 1978.

On February 6, 1978, pursuant to his Order of Reference, the Master held a hearing to determine whether defendants would comply with paragraphs 5(a) and 5(c) of the Order. Based on this hearing and his own expert observations, the Master submitted to this Court his Compliance Report of February 17, 1978, in which he made findings of fact, together with recommendations to defendants and the Court. The Master found that defendants had failed to reclassify the ACI population pursuant to the August 10 Order; furthermore, he found that they had no administrative or penological reasons for their noncompliance.

On March 10, 1978, plaintiffs moved that the Court hold defendants in civil contempt and apply contingent sanctions to enforce compliance with its Order. In its letter of March 13, 1978 to the parties, the Court directed the parties to appear before it on March 17, 1978, for two purposes:

1) To determine whether any of the findings of fact in the Master's Compliance Report of February 10, 1978 to which the defendants object are clearly erroneous, as provided by Rule 53(e)(2) of the Federal Rules of Civil Procedure; and

663

2) To hear oral argument on the plaintiffs' Motion for an Order to Show *663 Cause why the

Defendants Should not be Held in Contempt for Failure to Comply with Paragraph 5(a)(c) of the

Court's August 10, 1977 Order.

In preparing their testimony concerning any objections to the Master's report, the parties should be mindful that the usual rules of evidence will be applied and that the standard by which the Master's report will be judged is that of "clearly erroneous." Any evidence that was not presented to the Master will be admitted only upon a showing that the party offering it lacked a reasonable opportunity to offer the evidence at the hearing held by the Master on this subject on February 6, 1978.

Having taken testimony and heard argument, this Court will now address the adoption of the Master's Report and the motion for contempt with respect to defendants' noncompliance with paragraphs 5(a) and 5(c). The remaining issues raised in the Master's Compliance Report will be addressed in a further hearing on April 17, 1978.

I. Findings of Fact
Fed.R.Civ.P. 53 directs a court in its treatment of a master's report. Rule 53(e)(2) states:
In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties . . . The court after hearing may adopt the report or may modify it in whole or in part or may receive further evidence or may recommit it with instructions.
While defendants filed no written objections, they proffered objections and testimony in the March 17th hearing. Defendants did not object to the Master's findings with regard to their failure to reclassify more than 37 inmates by February 10th. They did not offer evidence showing that they could not comply, did not know how to comply, or lacked resources to comply. They did, however, offer testimony in order to show that they had made good faith efforts to achieve compliance. This evidence focussed primarily on the efforts of the Governor's Implementation Team from August to December, when it ceased to function.[3]
We find this evidence tangential in response to the Master's Report. While the defendants demonstrated that the 664 Governor's *664 Implementation Team responded with energy and dedication, they leave an unexplained hiatus
between their energy and the uncontroverted facts detailed below, that the Implementation Team's efforts failed to achieve compliance.
We therefore accept the Master's Report as not clearly erroneous and, in fact, upon review of the testimony, we find it has ample support.
Based upon the Master's Report, the evidence adduced in his hearing and the evidence presented to this Court at the March 17 hearing, we find the following:
1. The Governor of Rhode Island, the Director of the Department of Corrections, and their agents are responsible for implementing subparagraph 5 of the Court's August 10 Order.
2. From August to December the Governor's Implementation Team was charged by the Governor with the responsibility of monitoring compliance with and implementation of the Court's Order. The Team was dismissed in December 1977.
A. Degree of defendants' compliance as of February 10, 1978
3. As of February 10, 1978, the defendants' reclassification process was divided in theory into four stages. Classification staff obtained information consisting of social histories, educational and psychological tests, criminal justice background, and institutional record for each inmate. The Classification Team, a group appointed from the Department of Corrections, consisted of a clinical psychologist, an educational specialist, and a correctional officer. It compiled information, interpreted the findings, and made recommendations concerning the inmate's program and security classification. The Team prepared a face sheet for each inmate, summarizing the information and recommendations, and one of the Team members presented the report to the Classification Board. The Classification Board, designated by statute (R.I. G.L. §§ 42-56-29, 30, 31), decided on the appropriate security classification and program for each inmate. Finally, the action of the Board was reviewed by the Director of the Department of Corrections or his designee.
4. As of February 6, 1978, only 37 out of more than 500 inmates had appeared before the Classification Board.
5. As of February 6, 1978, defendants had completed 289 social histories, 51 psychological tests, and 28 educational tests.

B. Delay in Commencing the Reclassification Process Between August 10 and December 8, 1977
6. From before August 10 to December 8, Robert Black, Chief of Classification Services for the Department of Corrections, was responsible for coordinating and overseeing the activities of the Classification Board.
7. Following the August 10 order, Black was not instructed to make any changes in operation of the Classification Board in response to this Court's Order.
8. Neither Black nor any other member of the Classification Board was given specific responsibility for carrying out the Court-ordered reclassification. According to Black's testimony, "the Board just continued business as usual." (Master's Hearing of February 10, Tr. at 89, hereinafter "Tr.")
9. The Classification Board continued to meet four or five times a week to fulfill its previously established functions of processing furlough and work-release applications and reviewing inmates' applications for changes in security status.
10. The Director of the Department of Corrections appointed John Sharkey on August 28 to serve as in-house director for all matters concerning classification. However, Mr. Sharkey was given no specific authority which 665 would *665 have enabled him to carry out his function. Defendants presented no evidence of Mr. Sharkey's involvement with classification, other than his attendance at several meetings which were called by the Governor's Implementation Team.
11. On November 28, 1977, the Governor's Implementation Team requested that Mr. Sharkey be removed from his formal position as director of reclassification. The defendants complied with this request.
12. During the period from August 10 to December 8, 1977, Larry Kreis, Health Care Administrator for the Department of Corrections, participated in various meetings and activities during which classification was discussed. Kreis also provided assistance to the Governor's Implementation Team in coordinating the visit of a classification consultant on October 30 and gathering information for his use.
13. During this period, Kreis was given no responsibility for carrying out reclassification and therefore took no steps to supervise this process. According to Kreis' testimony, "I discussed [reclassification] with the chairman of the implementation team on a number of occasions, at his request. But I was not given any instructions to proceed and I didn't feel as if I had the authority to proceed without instructions." (Tr. at 76-77.)
14. On December 8, 1977, Larry Kreis was appointed to supervise the first three steps of the reclassification process, (see paragraph 3 supra): i. e., the preparatory phase of reclassification up to presentation of each case to the Classification Board.
15. During the period from August 10 to December 8, the Governor's Implementation Team devoted much time to discussing the goals of classification, deficiencies of the existing classification process, and the steps that were necessary to develop an effective classification system.
16. On October 14, 1977, the Governor's Implementation Team formally charged those individuals in the Department who were involved with classification, including Mr. Black, with the responsibility of developing a step-by-step description of each staff position and function necessary to carry out the reclassification.
17. The Governor's Implementation Team did not specifically instruct the members of the Classification Board to revise any of the procedures concerning reclassification or to establish any written criteria for the decision-making process. According to Mr. Black, the material developed by him pursuant to the Governor's Implementation Team's formal charge was turned over to the Implementation Team, and Black was not consulted again about the plans. (Tr. at 95.) (See paragraph 19, infra.)
18. The formal charge by the Governor's Implementation Team to the Department of Corrections did not require the Department to take any steps towards commencing the reclassification process. For all practical purposes, no

one in the Department of Corrections was given responsibility and authority for supervising or carrying out the reclassification process during the period from August 10 to December 8, 1977.
19. Defendants have offered no explanation for their failure to hold appropriate personnel accountable for implementing the reclassification process or instructing them about their responsibilities, other than their own delay in hiring a classification consultant.
C. Delay in Hiring the Classification Consultant
20. The Governor's Implementation Team decided on August 23 that it would hire a classification consultant to help develop the classification process and oversee the activities of the Department of Corrections, pursuant to subparagraph 5(b).
666 *666 21. The Governor's Implementation Team and the Department of Corrections staff determined that the classification consultant was essential to the commencement of the reclassification process, although the Court's Order does not require that the Department abate its reclassification duties imposed by state law prior to hiring a classification specialist.
22. Despite their view of the importance of the consultant, the defendants did not actually hire a classification consultant until mid-November. The consultant, Dr. Cowden, did not begin working with the Department on developing a reclassification system until December. Thus, the defendants took over one-half the time allotted for the reclassification process to hire and avail themselves of the services of a classification consultant.
23. Defendants offered evidence at the March 17 hearing to demonstrate the steps which the Governor's Implementation Team took to hire a consultant. However, the description of the Governor's Implementation Team's hiring process offered no reasonable explanation for the three-and-one-half month delay. The Court notes that the Special Master, a nationally known correctional expert who was given the responsibility for monitoring compliance with the entire Order, was hired in a month's time.
24. Defendants offered no explanation for their failure otherwise to respond to the Order before obtaining the services of a consultant (as required by 5(b)).
D. Delay in the Hiring of Appropriate Staff to Carry Out Reclassification
25. Defendants were informed of the necessity of developing basic information on inmates necessary for reclassification, and the need for staff to carry out that process, by their newly hired classification consultant Dr. Cowden, as well as by subparagraph 5(c) of the Court Order. In the proposed contract submitted by Dr. Cowden to defendants on November 5, 1977, he stated:
I would suggest that as a necessary step in any reclassification procedure a number of employees should immediately begin going through these files to determine what information is lacking. Steps should then be taken to provide this information.
26. Dr. Brad Fisher (a clinical psychologist and formerly serving as the Assistant Director of the Prison Classification Project which reclassified all inmates in the Alabama Correctional System pursuant to the Order in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala. 1976)), whose expertise was undisputed, testified that anyone familiar with the classification process would know that it is essential to gather basic social histories and educational tests in order to reclassify any inmate population.
27. In Dr. Cowden's proposed contract, he listed the type of information which defendants should gather, and stated that he would return to Rhode Island on December 5 (within two weeks), at which time he expected the defendants to have prepared at least 100 verified social histories.
28. As of December 5, 1977, only 17 verified social histories had been prepared.

Defendants have attempted to explain their failure to comply with the recommendations of the

classification consultant by pointing to the refusal of some inmates to sigh waiver forms and to

take the necessary tests. However, the Court concludes that the number of inmates who refused

to sign waivers was not high enough to preclude the Department from completing the requisite

number of social histories. Furthermore, defendants' witness testified at the Master's hearing that

no testing was done until January "except for a number of tests administered on an experimental

667

basis [by one of Cowden's assistants] to provide some validation *667 for the testing process."

(Tr. at 68.)

29. The Department was informed in November, by both the Governor's Implementation Team and Dr. Cowden, of the need for additional staff to carry out the reclassification process.

30. Despite the Department's knowledge of the need for additional staff, it allowed substantial delays before hiring necessary staff and giving them the specific responsibility of gathering the information necessary for reclassification.

31. Mr. Larry Kreis was not given responsibility for the reclassification process until December 8, 1977.

32. It was not until December 15 that defendants assigned 7 classification counselors to the task of developing social histories.

33. Five CETA workers were hired by the Department who reported to work on December 19. The Court recognizes that authorization for 5 CETA workers was informally obtained by members of the Governor's Implementation Team much earlier. However, the Department of Corrections did not submit the necessary paper work for these workers until some time in November. Thus, the reclassification process was not actually in operation until the staff was in place at the end of December.

34. The psychologist and psychometrist needed to perform the tests developed by Dr. Cowden were not hired until early January.

35. The Classification Team (as distinguished from the Classification Board) is a three-member committee that compiles the information gathered from social histories, psychological and educational tests, criminal justice records, and institutional records. It did not begin to operate until mid-January. Although the members of the Team0907a clinical psychologist who would head the team, an educational specialist and a correctional officer 0907 were appointed in early January, Mr. Kreis required two weeks to orient the Team to the classification process.

36. Thus, between August 10 and the middle of January no reclassification actually took place. (Master's Report at 12.) Between August and the middle of November, attempts were made to hire a classification consultant. Between November and December staff was hired, but during December and January no reclassification occurred.

37. Defendants have offered no reasonable explanation related to the availability of resources and personnel for not beginning the information-gathering process in a timely manner.

38. The Court finds that if data collection had begun promptly in August, as it could have, all data could have been collected as of February 6, 1978. It concludes this on the basis of its review of Dr. Brad Fisher's expert testimony (see paragraph 26 supra.)

39. In Alabama, pursuant to the Order in Pugh v. Locke, the Prison Classification Project took one week to hire and train the classification staff. The project completed the process of making classification recommendations for 3400 inmates in four-and-one-half months.

E. Absence of Impact of the New Classification System on Reclassification
40. Following the commencement of the reclassification process, the Classification Board continued to operate in the same manner as it had prior to the August 10 Order, although that procedure contributed to the constitutional violation found by this Court.
41. As of February 6, 1978, the criteria and classification process used by the Classification Board were the same as those used prior to the institution of the new system of information gathering (paragraph 3, supra).
668 *668 42. As of February 6, 1978, there were no specific written criteria used by the Classification Board in assigning inmates to maximum, medium, or minimum security levels.
43. As of February 6, 1978, all inmates were sent to the maximum security facility upon their entry to the ACI, a practice which is contrary to prison classification systems across the country.
44. The Master found and the Court agrees that written criteria are crucial for determining both appropriate security levels and program assignments. This finding is supported by expert testimony that it is not possible to make consistent recommendations about classification without established written criteria. (Tr. at 139.)
45. Defendants have offered no reasons for failing to incorporate the information gathered through the efforts of the Classification Team into the reclassification process.
Larry Kreis testified that the Classification Board failed to attend meetings specifically intended to orient them to the reclassification process. Defendants offered no evidence that they were making reasonable efforts to coordinate the recommendations of the Classification Team with the decision-making responsibility of the Classification Board.
F. Reversal by Classification Board of Classification Team's Recommendations
46. By February 6, 1978 the Classification Board had completed 37 cases. Of the 37 cases, the Classification Team had recommended only 17 inmates for minimum status, three of whom had disciplinary "bookings" pending. Since the Classification Board will not recommend for minimum security anyone with bookings pending, only 14 of the 17 inmates were actually eligible for minimum security. Of the 14, only six were assigned by the Board to minimum security. This is a 57% rate of reversal of the Team's recommendations.
47. The Board has not given any written, explanations of its decisions to overturn the Team's recommendations.
This failure to set forth reasons is contrary to the advice of the Department of Corrections' own classification consultant, Dr. Cowden, who recommended that the Board be required to submit written explanations for the reversal of Team recommendations. Dr. Brad Fisher also testified at the Master's hearing concerning the importance of written explanations of Team reversals in order that inmates might understand the decisions concerning their classification.
G. Current Status of Reclassification
48. As of March 10, 1978, the Classification Board had reclassified 209 out of approximately 525 sentenced inmates at the ACI.
49. As of March 10, the Classification Team had prepared recommendations for 213 inmates, while 473 social histories have been completed.

H. Findings Regarding Compliance
50. The Court finds that the defendants have failed to comply with subparagraphs 5(a) and 5(c).
51. The classification process is fundamental to the August 10 Order and must be completed to enable compliance with the rest of the Order, notably subparagraphs 2(a) and 3(b).
52. Defendants have offered no sufficient reasons for their failure to comply with the Court's Order, related to the availability of resources (financial, personnel, expertise), or to their ignorance of the Order or of the method of complying with it.
II. The effects of the Failure to Reclassify
669 Reclassification of inmates at the ACI is the cornerstone of any attempt to ameliorate *669 conditions at the institution. Palmigiano v. Garrahy, at 965. It is also central to the accomplishment of many specific changes envisioned by the Order.
The Court is dismayed at defendants' inability to perceive the potential for inmate abuse, degradation, and fear of violence and rape, which is perpetrated by the lack of proper classification. They have unnecessarily confined the majority of prisoners along with the few most violent and dangerous inmates, when the classification procedure would reveal that these inmates do not require maximum security. To these inmates the term "maximum security" is a painful irony, for it entails their incarceration under the most dangerous conditions. Moreover, the failure of reclassification inhibits the assignment of inmates to constructive vocational and educational activities. In the course of the trial in Palmigiano, the Court heard extensive testimony regarding the detrimental results of this practice:
The testimony established overwhelmingly, and without contradiction, that the idleness suffered by inmates at the ACI was excessive, engendering fear and violence and causing psychological deterioration. Experts of broad experience found it worse than any they had ever encountered, and believed it to be a major, and inevitable, cause of the violence and consequent fear and terror which pervade the ACI.
Palmigiano, at 981.
Thus the inadequacy of the classification process was, and is, a major contributing factor to the unconstitutional conditions at the ACI.
The Court also takes note of the continued financial burden which the people of Rhode Island must bear as a result of defendants' noncompliance. As the Master noted:
The failure of the Department of Corrections to complete the reclassification process on schedule requires costly delays in facility planning, unfair and ineffective program assignment of inmates, and unnecessary daily expenditure of thousands of dollars because inmates are misclassified to maximum security when public safety does not require such an assignment.
Compliance Report at 20.
Finally, the failure to reclassify under paragraph 5 significantly impedes the implementation of many other parts of the August 10 Order. Until reclassification is completed, defendants cannot redistribute the inmate population according to appropriate security designations, as required by paragraph 9 of the Order. Defendants are also unable to produce a final facilities configuration for the ACI, in compliance with paragraphs 2(a), 3(a), 3(b) and 10, until a reclassified population profile is completed. In addition, reclassification is essential to the development of vocational, educational, and recreational programs at the ACI, as provided for in paragraphs 5(3) and 9, since inmates cannot be assigned to appropriate programs without the benefit of recommendations from the Classification Team.

The failure to reclassify has such serious consequences; but the costs of reclassifying are not great. Reclassification is no unfamiliar duty to the defendants. It has been the responsibility of the Department to conduct a meaningful classification system under R.I.G.L. §§ 42-56-29, 30, 31, 32 (1976), since the Rhode Island legislature directed it to institute modern classification procedures. When the Court set out to fashion relief in Palmigiano v. Garrahy, it did no more with regard to classification than to enforce the duty already incumbent on defendants. In addition, paragraph 5 poses no significant financial or personnel burden on defendants. The burden is especially modest in comparison with the other provisions of the August 10 Order.
III. The Law of Contempt
The plaintiffs have moved the Court for a finding of civil contempt for the defendants' failure to comply with the classification Order.
670 *670 While criminal contempt aims at vindicating the dignity of the court,[4] civil contempt serves
to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the Court has found them to be entitled. . . . [They] are civil, remedial, and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce . . .
In re Nevitt, 117 F. 448, 458 (8th Cir. 1902); cf. United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 91 L.Ed. 884.
In light of the interests to be protected by this remedy, civil contempt proceedings may be instituted only by a party seeking to enforce the court's remedy. MacNeil v. United States, 236 F.2d 149, 153 (1st Cir. 1956).
"Broadly speaking, a civil contempt is a failure of a litigant to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein." Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946). Since "wilfulness" is not an element of civil contempt, McComb v. Jacksonville Paper Company, 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); United States v. Greyhound Corporation, 363 F.Supp. 525, 570 (N.D.Ill.1973), supplemented, 370 F.Supp. 881, aff'd, 508 F.2d 529, the defendants' intent is not in issue in this case. Thompson v. Johnson, 410 F.Supp. 633, 640 (E.D.Pa.1976); McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 S.Ct. 599 (1948).
The party against whom civil contempt sanctions are sought need not be held to absolute compliance with a court order. "Especially where the decree, as in this case, calls for elaborate and complex performance, a contempt adjudication is not required or justified merely because the results are found to be incomplete or postponed." Aspira of New York v. Board of Education of City of New York, 423 F.Supp. 647, 654 (S.D.N.Y.1976); Washington Metropolitan Area Transit Authority v. Amalgamated Transit Union, 174 U.S. App.D.C. 285, 294, 531 F.2d 617, 626 (1976). Courts have conceived various standards of reasonableness in order to measure defendants' compliance in civil contempt proceedings. One court has described the standard as, "Whether defendants have been reasonably diligent and energetic in attempting to accomplish what was ordered", Aspira of New York v. Board of Education of City of New York, 423 F.Supp. at 654. Another asked whether defendants took "all the reasonable steps within their power to insure compliance with the orders", Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 550, 51 L.Ed.2d 774.
However, where the court determines that "defendants violated their obligations under the decree by failures of diligence, effective control, and steadfast purpose to effectuate the prescribed goals," contempt findings are in order. Aspira, 423 F.Supp. at 651; cf. Natural Resources Defense Council, Inc. v. Train, 166 U.S.App. D.C. 312, 333, 510 F.2d 692, 713 (1975).
Plaintiffs seeking the application of civil contempt sanctions have usually been held to a burden of proving 671 defendants' noncompliance by "clear and convincing" evidence, United States v. Rizzo, 539 F.2d *671 458, 465
(5th Cir. 1976); Hart, Schaffner & Marx v. Alexander's Department Stores, Inc., 341 F.2d 101 (2nd Cir. 1965);

N.L.R.B. v. Alamo Express, Inc., 395 F.2d 481 (5th Cir. 1968). While defendants' inability to comply with a judicial decree has been accepted as a valid defense to civil contempt charges, United States v. Bryan, 339 U.S. 323, 330-334, 70 S.Ct. 724, 94 L.Ed. 884 (1950); N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973), "the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply. . . . The contrary burden is on the [defendant]." N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d at 616 (citations omitted); Aspira, 423 F.Supp. at 654.
IV. Finding of Contempt
We have found that the defendants are not in compliance with the Order, that they have been out of compliance since February 10, 1978, and will in the immediate future remain out of compliance.
We have found further that there have been long periods in which no efforts to comply were made whatsoever and other periods when efforts to comply were limited. The defendants were dilatory. We have found also that none of the reasons offered for delay by defendants related to an inability to comply. The reasons offered did not relate to lack of notice, lack of money, lack of personnel, lack of expertise, or lack of legal power. To the contrary, the defendants had a pre-existing duty to classify inmates correctly. The August 10 Order came as no surprise and imposed no burdens which they could claim were unreasonable.
The history of defendants' efforts to achieve compliance with paragraph 5 contains repeated unwarranted delays. Thus, between August 10 and November 15 defendants' only effective response to the Court's Order was their search for a classification consultant. Even up to mid-December, defendants had failed to implement any changes in their classification staffing and procedure. Although some additional staff were assigned to classification by mid-December, no actual reclassification took place until January 19. By February 10, the courtordered compliance date, only 37 of over 500 inmates had been reclassified.
Even after the Department's Classification Team began to produce biographical profiles on inmates, the Classification Board implemented no changes in conjunction with the Team's efforts until mid-February, even though Rhode Island law requires that the Board "review all studies of each prisoner", R.I.G.L. § 42-56-31 (1976). Thus, while the Classification Team produced extensive data and recommendations for each inmate, the Board failed to take advantage of its input; nor did it develop standard, written criteria with which to evaluate the Team's inmate profiles.
In the hearing of March 17, 1978, defendants tried to prove the adequacy of their efforts at compliance through testimony regarding the Governor's Implementation Team's work between August and December, 1977. While the Court recognizes the energy and dedication of the Team's members, their efforts did not constitute "all reasonable steps," Sekaquaptewa, 544 F.2d at 406, toward achieving compliance. Since no Team member had experience in correctional administration, defendants suffered an inordinate delay while the Team familiarized itself with relevant aspects of the Department's activities. Moreover, their efforts are not in issue here. At issue are the activities of the Department of Corrections.
The Implementation Team failed to achieve coordination with those officials of the Department of Corrections who had responsibility, pursuant to state statute and this Court's Order, for implementing the reclassification process. Nor were the planning efforts undertaken by the Team ever translated into specific directives to be followed by Departmental personnel.
In the hearing, the State's Assistant Attorney General attempted to justify the Department of Corrections' dilatory 672 responses by pointing to the energy and good faith of *672 the Team, appointed by the Governor, to oversee
implementation on his behalf. The Governor's good faith is without question and the energy of his Team has been commendable. But it has not produced results. It has been faced with the same frustrations as this Court 0907trying to persuade the Department of Corrections to fulfill its statutory and constitutional duties.
For these reasons, and because of the serious impact on the entire Order of the failure to comply, the Court is forced to conclude that defendants did not undertake all "reasonable and necessary" steps toward compliance

with paragraph 5 of the August 10 Order. They are hereby adjudged in contempt. This action is one for civil contempt, not criminal. The Court has made no finding of bad faith or wilful intent to frustrate the August 10th mandate, and the Court has no intention of punishing defendants for their failure to achieve compliance.
Nevertheless the Court has concluded that a coercive sanction is necessary.
The word "contempt" rings fiercely; if its connotations in law included only lay notions like scorn and wilful disobedience, plaintiffs could not prevail. But the idea in this context includes failures in meaningful respects to achieve substantial and diligent compliance. In this sufficient sense, the defendants are found to have been in contempt, and it has become the court's duty to declare it.
Aspira, 423 F.Supp. at 649.
V. The Sanction
The State's Assistant Attorney General stated in Court, in the March 17th hearing, that the reclassification process would be complete by May 1, 1978, and that if it were not he understood a contempt sanction would be imposed. This Court takes him at his word and will impose a daily fine of $1,000.00 from and after May 1, 1978 for each day after May 1 that defendants are out of compliance. Defendants may purge themselves of contempt by achieving compliance with paragraphs 5(a) and 5(c) at any time before May 1, 1978. In that event this Court may quash this contempt citation and revoke the fine. Hamilton v. Love, 358 F.Supp. 338, 348; 361 F.Supp. 1235 (D.Ark.1973).
The Court concludes that a fine is necessary because the Court's deference to the duly-appointed state officials has not persuaded the Department of Corrections that the August 10 Order must be complied with, with all the speed that the Department's resources permit. With regard to other parts of the Order, the defendants have been granted extensions when requested. But in this case they have come forward with no reasonable explanation of their failure to comply. At a Master's hearing on February 6, 1978, they said that classification would be completed by April 10. Yet defendants chose to revise that estimate before the Court, stating at the March 17 hearing, that the process would not be completed until May 1. While the Court recognizes that the Department has made progress since January, it can only conclude that the Department's goals may not be realized unless they are pursued under the threat of a coercive sanction.
In shaping the sanction, the Court has taken into account "the character and magnitude of the harm," "the probable effectiveness of the suggested sanction in bringing about the result desired" and "the amount of defendants' financial resources and the consequent seriousness of the burden to that particular defendant." United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947).
The Court's present purpose is coercive and not remedial and it makes the sanction conditional. Cf. United Mine Workers, 330 U.S. at 304, 67 S.Ct. 677; Skinner v. White, 505 F.2d 685, 690 (5th Cir. 1974); Windsor Power House Coal Co. v. District 6, United Mine Workers of America, 530 F.2d 312, 316-17 (4th Cir. 1976).
If the defendants fail to comply by May 1, then the fine shall be paid to the Court. See Winner Corp. v. H. A. 673 Caesar & Co., 511 F.2d 1010, 1015 (6th Cir. 1975). The Court will then consider making the sanction into *673 a
remedial one, for the continuing constitutional detriment suffered by the prisoners. This Court may then look to the Pennsylvania Court of Common Pleas, in a conditions of confinement prison suit, which imposed a large fine on city officials and established a committee to spend the fine to improve the conditions of confinement of the prisoners.[5]
Reluctantly, the Court applies the present sanction against Mr. John Moran in his official capacity as Rhode Island's newly-appointed Director of the Department of Corrections.[6] The Court is aware that he had no role in defendants' compliance efforts prior to February 13, three days after the classification deadline had passed.
Nevertheless, in the Court's findings of fact the absence of a locus of responsibility for reclassification is made evident. Neither the Governor's Implementation Team, Mr. Larry Kreis, nor Mr. Robert Black had clear authority to respond to the Court's mandate, although each did have a limited role in the classification process. Because the

Court cannot safely conclude that particular Departmental personnel, nor the Implementation Team were solely responsible for defendants' noncompliance, the Court has no other recourse than to direct its findings to the present head of the Department of Corrections.
The Court makes an additional order in conjunction with its finding of civil contempt, see United States v. Greyhound Corp., 370 F.Supp. 881, 886 (N.D.Ill.1973). The Court directs John Moran, Director of the Department of Corrections, to identify within 10 days those officials under his authority who have responsibility for the reclassification process. Mr. Moran may comply with this Order by letter to the Court, which will specify the title, the detailed job description, and the position in the hierarchy of each job, and the name of the job-holder.
This is hardly the first time that state officials have been found in contempt of a federal court. See, e. g., Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975), aff'd, 530 F.2d 401 (1st Cir. 1976), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); Aspira of New York v. Board of Education of City of New York, 423 F.Supp. 647, 651-58 (S.D.N.Y.1976); Hamilton v. Love, 358 F.Supp. 338, 348; 361 F.Supp. 1235 (E.D.Ark.1973); Hadnott v. Amos, 325 F.Supp. 777 (M.D.Ala.1971); In re Herndon, 325 F.Supp. 779 (M.D.Ala. 1971); Harvest v. Board of Public Instruction of Maratee Co. Fla., 312 F.Supp. 269, 276-282 (M.D.Fla.1970); Meredith v. Fair, 328 F.2d 586 (5th Cir. 1962); cf. Aaron v. Cooper, 156 F.Supp. 220 (E.D.Ark.1957), aff'd sub nom., Faubus v. U. S., 254 F.2d 797 (8th Cir. 1958), cert. denied, 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68; Holmes v. Danner, 191 F.Supp. 394 (M.D.Ga.1961); U. S. v. Wallace, 222 F.Supp. 485 (M.D.Ala. 1963); Lasky v. Quinlan, 406 F.Supp. 265 (S.D.N.Y.1976); Vecchione v. Wohlgemuth, 426 F.Supp. 1297, 1316 (E.D.Penn.1977); Richmond Black Police Officers v. City of Richmond, Va., 548 F.2d 123 (4th Cir. 1977).
Nonetheless, this Court has acted to hold an official of the State of Rhode Island in contempt with great reluctance and only after long patience with the deplorable conditions at the ACI and deference to defendants' good faith efforts. This litigation has gone on too long, in large part because of the failure of administration by the Department of Corrections, see Palmigiano v. Garrahy, at 977-978; Jefferson v. Southworth, 447 F.Supp. 179, 190-191 (D.R.I.1978). The Court insists that the intolerable conditions be ameliorated. Reclassification is an essential first step.
674 The Court is aware that the final burden of this fine will fall on the taxpayers of *674 Rhode Island, if the defendants fail to use the next month to comply with the Court's Order. But already the heavy financial costs, which the prison administration imposes by maintaining many prisoners in unnecessarily high security, fall on the taxpayers; this cost should soon be diminished. The citizens of this state also bear the human costs of operating a degraded prison system, which is below minimum standards and does not afford rehabilitative opportunities for those who eventually will return to live among us.
No prison can be a happy or congenial place. Those in the public who fear and those among the prisoners who hope that this Court believes otherwise are mistaken. Rather, prisons require the highest dedication and discipline of a prison administration just to make them tolerable, for there is much in a prison to bring out the worst in everyone.
Whether cooperatively or coercively, this Court intends that the ACI become a tolerable prison, as the Constitution demands.
[1] See, e. g., Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970); 373 F.Supp. 177 (D.R.I.1974), aff'd 509 F.2d 1358 (1st Cir. 1975); Ben David v. Travisono, 373 F.Supp. 177 (D.R.I.1974), aff'd, 495 F.2d 562 (1st Cir. 1974); National Prisoners Reform Association v. Sharkey, 347 F.Supp. 1234 (D.R.I.1972); Souza v. Travisono, 368 F.Supp. 959, aff'd in part, 498 F.2d 1120 (1st Cir. 1974).
[2] This case arose as a consolidated class action brought by five prisoners confined in the Rhode Island Adult Correctional Institutions (ACI) and by the National Prisoners' Reform Association on behalf of all the prisoners incarcerated at the ACI. The plaintiff class, numbering over 650, includes pre-trial detainees as well as sentenced prisoners. Plaintiffs claimed that the conditions under which they were confined violated the Eighth and Fourteenth Amendments to the United States Constitution, as well as various provisions of state law. They sought broad injunctive relief, including the permanent closing of the maximum security building at the ACI complex in Cranston, Rhode Island. No damages were sought in this action.

Jurisdiction of this action, which arose under 42 U.S.C. § 1983, is conferred by 28 U.S.C. §§ 1343(3) and (4). The class was certified by order of July 23, 1976. Pendent jurisdiction was assumed over the state law claims.
[3] The defendants did not challenge the Master's findings except that
1. They offered supplementary evidence for the purpose of casting a different view of certain findings regarding compliance between August and December which they acknowledged to be accurate. This evidence dealt with meetings held by the Governor's Implementation Team and their efforts to find a consultant. The Court has acknowledged the Team's efforts but found them unavailing and found no evidence that the Team instituted reclassification. Defendants offered no evidence contradicting the findings with regard to the Department of Corrections' lack of efforts, except to point to several meetings between the members of the Department and the Team.
2. They offered evidence suggesting that Mr. Black's duties, with regard to classification, were less broad than the Master suggested. This matter is of no consequence.
3. They asserted that in fact in the August to December period four persons in the Department of Corrections were formally charged with the task of providing information on classification to the Implementation Team and developing a plan. But they do not offer evidence to controvert the finding that no one in the Department was clearly and formally charged with responsibility and given power to implement reclassification, nor do they show that the work of these four for the Implementation Team produced concrete results.
4. They asserted that Mr. Sharkey was formally charged with the duty to reclassify, but the only evidence they submitted to controvert the finding that he had no actual authority was that he attended two meetings on classification.
5. Without evidence, they asserted that the Reclassification Board was an unimportant component in the classification process. But the Board has the statutory duty to review classification and we find the defendants' assertion incorrect.
6. Without evidence, they asserted that a reclassification consultant could not be found more quickly.
[4] Criminal contempts are "those prosecuted to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders . . . . [They] are punitive in their nature, and the government, the courts, and the people are interested in their prosecution." In re Nevitt, 117 F. 448, 458 (8th Cir. 1902); cf. United States v. United Mine Workers, 330 U.S. 258, 302, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Thus, the court, not an adverse party, may institute criminal contempt proceedings upon its own motion. F.R.Cr.P. 42(b), when a violation of its orders constitutes an affront to its dignity and warrants punishment.
[5] The Pennsylvania Court of Common Pleas imposed a contempt fine of $75,000 damages and a $250,000 conditional fine on the Mayor, Commissioner of Public Welfare and other officials. Jackson v. Hendrick, 22 Crim.L.Rep. 2356-57, (Jan. 25, 1978); cf. Id. at 2356 (citations therein); Hendrick v. Jackson, 10 Pa. Cmwlth. 392, 309 A.2d 187 (1973), aff'd in part, rev'd in part, 457 Pa. 405, 321 A.2d 603 (1974).
[6] Cf. Parker v. United States, 126 F.2d 370, 379 (1st Cir. 1942) (corporate officers). But cf. Thompson v. Johnson, 410 F.Supp. 633 (E.D. Pa.1976), aff'd 556 F.2d 568 (3rd Cir. 1977).
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 737 F.Supp. 1257 (1990)
Nicholas A. PALMIGIANO, et al. v.
Edward DiPRETE, et al. Thomas R. ROSS, et al.
v. Edward DiPRETE, et al.
Civ. A. Nos. 74-0172 P, 75-0032 P.
United States District Court, D. Rhode Island.
May 18, 1990.
1258 *1258 Alvin Bronstein, Nat. Prison Project of the ACLU Washington, D.C., for plaintiffs.
George Cappello, R.I. Dept. of Corrections, Cranston, R.I., David Dugan, R.I. Atty. Gen.'s Dept., George Vetter, Peter Palumbo, Providence, R.I., for defendants.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

In my Opinion and Order of April 6, 1989, I set forth the travel of this case as it developed from my order of October 21, 1988 when Governor DiPrete and John J. Moran, Director of the Rhode Island Department of Corrections "were found to be in contempt of court for having failed to comply with certain provisions contained in standing orders of this Court regarding conditions of confinement at the state's Adult Correctional Institutions (hereinafter `ACI'): ... the prohibition against housing pre-trial detainees in dormitories, the limitation on doublecelling any pre-trial detainee for more than thirty days, and the population cap of 250 persons at the Intake Service Center (hereinafter `ISC'), this last having been entered with the consent of the parties. Defendants were ordered to file with the Court by November 21, 1988 a specific and detailed plan, to be approved by the Court, which would ensure compliance with the enumerated provisions. The Court further ordered that the defendants might purge themselves of contempt by implementing, by February 20, 1989, their plan to comply with the standing orders. Finally, the Court ordered that, if defendants failed to file a plan with the Court by November 21, 1988 or if they failed to bring the ISC into compliance with the court orders by February 20, 1989, fines would accrue at the rate of $50 per day for each person held in the ISC in excess of the 250 population limit."[1]

Because the factual findings and legal conclusions set forth in my Opinion and Order of April 6, 1989 are relevant and pertinent to the instant matter, I do not feel it is necessary to either reiterate or summarize the same. I refer the reader to 710 F.Supp. 875 (D.R.I.1989) and incorporate herein its factual and legal pronouncements.

On November 21, 1989, the plaintiffs filed a "Motion for a Hearing on the State of Compliance at the Intake Service Center." That motion focuses on a specific provision of the April 6 order. Because of the brevity of the memorandum in support of the motion, I quote the same in its entirety.

In its April 6, 1989 Opinion and Order, the Court stated, inter alia, that:

1259

IT IS FURTHER ORDERED that the accrual of new fines will be suspended for six months from the effective date of this Order, at which time a compliance hearing will be held. By the date of the compliance hearing, the court expects that defendants will have implemented the initiatives which they set forth in the December Plan and the February Report to bring the ISC into compliance with the Court's standing orders. Defendants must not rely only on the Emergency Overcrowding Relief Fund or Project Bail; *1259 they must move forward with alacrity on all fronts. Defendants are

hereby put on notice that the Court will consider harsher sanctions if defendants are again found to be in contempt of court.
Palmigiano v. DiPrete, 710 F.Supp. 875, 889 (D.R.I.1989), aff'd. No. 89-1440 [887 F.2d 258] (1st Cir. 8/17/89) (emphasis added).
The plaintiffs are informed and believe that defendants continue to be wholly out of compliance with the standing orders of the Court with respect to the Intake Service Center. Plaintiffs will urge the Court to find defendants in continuing contempt of court and will provide the Court with a list of proposed sanctions, together with authority in support of each sanction, prior to the hearing.
Wherefore, plaintiffs, by undersigned counsel, request that the Court schedule a hearing on the current state of compliance at the Intake Service Center of the Adult Correctional Institutions.
On December 5, 1989, I held a hearing on this motion; post-hearing briefs were received in December. On January 8, 1990, the defendants filed a "Motion to Modify Orders" and a "Motion to Modify the April 6, 1989 Order"
... to exclude from eligibility for Emergency Overcrowding Relief Fund bail those detainees held on charges of rape (first degree sexual assault), murder in the first degree, and first degree child molestation, as well as any defendant arrested for a crime of violence against the person while bailed under the Emergency Overcrowding Relief Fund.
Removing the prohibition against "dormitory" housing of pre-trial detainees (1977 Order decretal ¶ 2(b));
Permitting the dormitory housing in two new 40-bed units of 80 protective-custody pre-trial detainees;
Temporarily (until the completion of the ISC permanent annex construction) allowing the housing of sentenced and pretrial detainees together in the discretion of the Director of the Department of Corrections;
Temporarily (until the completion of the ISC permanent annex construction) permitting the doublecelling of ISC inmates in excess of 45 days in the discretion of the Director of the Department of Corrections; and
Establishing the population cap for the Intake Service Center at 416 (four hundred sixteen) inmates.
On February 5, 1990, I issued an order appointing Vincent M. Nathan as an expert; I incorporate said order as part of this Memorandum and Order and because of its conciseness, I attach a copy hereto as Appendix A. Finally, on March 14, 1990, I issued an order encompassing the Pinel Building (annex to ISC) as part of this litigation.
On May 10, 11 and 14, 1990, I heard further evidence on the litigants' motions, identified supra. At the hearing, the plaintiffs presented three experts; their testimony is summarized as follows:
Patrick McManus[2] toured the ISC in October and December, 1985, October, 1989, and May, 1990. He provided compelling testimony on the changes in the institution over the last five years. In October, 1985, the inmate population stood at 345; in May, 1990, the population in the ISC was 553.
Because of the increase and the resultant overcrowding, Mr. McManus testified that conditions in the ISC now were "much, much worse, much, much worse" than they were in 1985. Virtually no program or education space remains in the ISC; space formerly used for these activities is now used to house prisoners. Day rooms now have 1260 bunk beds; hallways, with no immediate access to toilets or showers, have been *1260 converted to housing. Even the law library houses prisoners, making it necessary for prison officials to close the library for much of the time.

In Mr. McManus's opinion, the overcrowding in the ISC and Annex has taxed the support services and reduced recreation space for the institution, and, most importantly, created an atmosphere in which violence plays an increasingly common role. Drawing on Mr. Nathan's report, Mr. McManus considered the presence of 90 prisoners in protective custody to be an indication that the inmates viewed the ISC and Annex as "a dangerous place to live." Moreover, Mr. Manus found the 222 disciplinary write-ups for assaultive behavior and the 72 inmate assaults on correctional officers between January, 1989 and February, 1990 "extremely high" and a direct result of the overcrowded conditions.
Mr. McManus, in response to my inquiry, felt conditions in the ISC and Annex were so serious that I must take "immediate and uncompromising action" to alleviate the overcrowding; I cannot, in his opinion, wait for the state to finish a new addition to the ISC. Mr. McManus agreed with Mr. Nathan's recommendations and found the conditions in the ISC and Annex to be neither constitutional nor in compliance with my standing orders.
Theodore Gordon[3] testified after Mr. McManus and covered the deficiencies in the environmental health and safety at the ISC. Overcrowding at the ISC, in Mr. Gordon's opinion, has overwhelmed the institution's maintenance and support services and, therefore, it represents "an immediate and overt threat to the inmate population." He described living conditions that, because of the overcrowding, were cramped, noisy, and stifling. The ISC did not, in Mr. Gordon's opinion, conform to this Court's standing orders or the environmental health and safety standards promulgated by the American Public Health Association ("APHA"), standards this Court has followed in its previous opinions.
Specifically, Mr. Gordon felt that the overcrowding has compromised the food service, maintenance, and fire safety at the ISC and Annex. He inspected the kitchens and found that the ovens and other equipment could not handle the increased number of meals the ISC had to provide. The ovens were greasy and had not been cleaned; the refrigerators were dirty, and, because they had to hold more food than they had capacity for, they could not maintain adequate food temperatures. Moreover, he found mouse droppings and evidence of roaches. Mr. Gordon concluded that the overcrowding, and the corresponding burden on the food service operation, resulted in a very serious potential for food-borne disease at the ISC.
Similarly, he found shortcomings in the fire safety at the institution. First, many housing areas either do not have adequate paths for evacuation in the event of a fire or, because of the double bunks, have obstructed paths for evacuation. Second, the fire alarms and smoke detectors have not been maintained. Finally, Mr. Gordon felt that the prison officials' inability to maintain an adequate ventilation system exacerbated the unhealthy environment created by overcrowding.
When I asked Mr. Gordon whether I had to take immediate action or could wait for the completion of the new ISC addition, he outlined several steps the prison officials could take to remedy, at least temporarily, some of the environmental health and safety deficiencies at the ISC. First, the officials should institute a 24-hour fire watch and inspect and repair the ISC's fire and smoke alarm system. Second, the institution should increase its maintenance staff in order to clean the ventilation system and food service area. Third, the officials should 1261 increase the number of food service staff and more closely monitor the temperatures *1261 of the prepared food. Finally, the prison officials should ensure that the bunks in the ISC are at least three feet apart and placed head to foot to decrease the risk of spreading infectious disease.
Mr. Gordon emphasized, however, that, unless the inmate population is brought down to manageable levels, any measures to improve the food service conditions would soon be overwhelmed by the burden of providing food for too many prisoners. He thought that the institution might be able to get by for another four months but "would not recommend that the Court take that risk."
Dr. Lambert King[4] was the plaintiffs' final expert witness. His testimony covered the inadequacies of the medical services at the ISC caused by the overcrowding. He found that the medical and dental examination of prisoners when they arrive at the ISC failed to meet APHA standards, that screening for tuberculosis was deficient, and that the medical records were improperly documented. Additionally, he felt that the medical system was drastically undersupported. A shortage of nurses, medical doctors, and physician assistants and a lack of consistent medical leadership has led, in Dr. King's opinion, to a situation in which the staff at the ISC cannot meet the legitimate

medical needs of the inmates; the organization and provision of medical services at the ISC are random and chaotic.
Dr. King, in response to my questions, stated that the medical shortcomings at the ISC represented a serious and present danger to the prisoners that required my immediate intervention. I specifically asked, "Do you believe that the situation is so critical as to mandate an immediate and uncompromising intervention by this Court?" His answer was, "Yes, I do, Your Honor." He felt that I should not wait before taking action to alleviate the strain on institution caused by overcrowding. The potential for the spread of contagious disease, particularly tuberculosis, was, in Dr. King's opinion, particularly grave. Most tellingly, for this Court, Dr. King found that, in comparison with fifteen other prison systems he has inspected, the ISC is at the bottom in terms of organization, leadership, and resources.
The court appointed expert Vincent Nathan also testified. In essence, he reiterated much of what he already submitted in his reports, which are filed as part of the record in this case. The need to expedite this Memorandum and Order, in the face of pressing trials and other court commitments, causes me not to labor a reiterative narrative of his report; instead, the expert's Executive Summary is attached as Appendix B. Suffice it to say, I adopt his overwhelming factual findings.
Excepting for Mr. Moran's testimony, I have before me an uncontradicted record of sordid and explosively dangerous conditions existing at the ISC caused by overcrowding in 0907 many respects deja vu of the Maximum Security Section as it existed in 1977. See 443 F.Supp. 956 (D.R.I.1977). The record will show that I probed in vain to get some support for deferring action to November, 1990 when the new ISC permanent annex is scheduled for completion. Repeatedly, I asked each witness if I could wait and, in substance, coupled such inquiry with the further question, "Do you believe that the situation is so critical as to mandate an immediate and uncompromising intervention by this Court?" The answer was always the same I0907 had to act now. In fact, I pressed Mr. McManus, who persisted in saying I should act immediately; a two month, three month or four month wait could not be tolerated.
Now, it is true Mr. Moran is of a contra mind, but it must be remembered he is on the firing line; with all due 1262 respect0907and *1262 this Court does respect Mr. Moran, appreciating the Herculean task resting on his shoulders
as created by the uncontrollable proliferation of inmates I0907 cannot accept his self-serving assessment. It is also true Mr. Gordon offered some weak support for waiting, if certain conditions were immediately and unequivocally met. However, his strong testimony describing the intolerable conditions he encountered, negated any serious thought of postponing my intervention.
The final, quintessential blow to defendants' request that this Court stay its hand until November was accomplished by defendants' own witness0907Major John D. Case. He testified that he found the conditions unconstitutional "as far as what [he] understand[s] to be at the present time," albeit he did not find "them to be unconstitutional and cruel and unusual ... when [he] was there on the 5th of December when the total count between the two institutions [he] believe[d] was0907the count, the count at the jail was 526"; he hoped it would be reduced to 416.
I then asked, "Do you believe the conditions are so critical as to required immediate action?" Answer: "Yes, I do." This was followed with an inquiry as to whether or not the Court could "stay its hand" if certain conditions were effectuated immediately, i.e., such as correcting the ventilating system, repositioning the present health hazardous sleeping arrangements, repairing the unsatisfactory operation of the fire alarm system, instituting a 24hour fire watch, correcting present unhealthy sanitation conditions, increasing maintenance staff, and completing the new building by November. He answered this in the affirmative but engrafted a further condition 0907the "release [of] sentenced inmates three months before the expiration of their sentence." I then put the following question to the witness: "Now Mr. Nathan you know, has recommended that there be accelerated parole consideration in this sense, that the0907give them ninety days good time and that would do, if I understand correctly, would do two things. One, it would accelerate the mandatory release time of certain inmates and, secondly, it would expedite the parole hearing time on other inmates. Would you recommend that be put into effect?" Answer: "Yes, indeed, your Honor."

The record portrays an emergency situation screaming for instant action. The Court's own searching questions for an alternative approach proved to be a futile quest.
I find the defendants are in continuing contempt of this Court. Accordingly, it is hereby
1. ORDERED that defendant shall maintain at all times at least Two Hundred Thousand Dollars ($200,000.00) or, as requested by the state, its equivalent as may be acceptable by the state judiciary, to finance the Emergency Overcrowding Relief Fund to provide bail for all indigent detainees with bail set at Ten Thousand Dollars ($10,000.00) cash or less. It is further
2. ORDERED that all sentenced prisoners in the ACI shall immediately be awarded 90 days of expedited good time, which shall be applied against the maximum sentence of each affected prisoner and shall, contrary to the terms of R.I.Gen.Laws sec. 42-56-24, be deemed to advance each affected prisoner's eligibility for consideration for parole. Moreover, all sentenced prisoners, regardless of the length of their terms of incarceration, shall receive the expedited good time required by this order.[5] It is further
1263 *1263 3. ORDERED that expedited awards of 90 days of good time shall be made every 30 days in accordance with the immediately preceding paragraph of this order until all sentenced prisoners have been removed from the ISC and the Pinel Annex. It is further
4. ORDERED that no later than 30 days following the entry of this order, no more than 450 prisoners may be housed at the ISC and no more than 184 prisoners may be housed at the Pinel Annex. At the expiration of this 30 day period, the parties shall meet with the Court to evaluate the progress made by the defendants. At that time, this Court will issue orders establishing goals for further reductions and the means to achieve these goals. It is further
5. ORDERED that defendants shall take all steps, in addition to those specified above, to accomplish the maximum capacities as heretofore established by this Court. It is further
6. ORDERED that on the 31st day following the entry of this order, defendants shall file a report of the population of the ISC and the Annex. The report shall reflect the daily population of each facility between the date of this order and the date of the report. In the event defendants fail to achieve and maintain the required maximum capacities required by this order, the Court will enter a subsequent decree enforcing the terms of this order. That decree will include such other relief as the Court finds necessary to ensure compliance with the instant order, and may include imposition of daily fines of $50.00 per prisoner per day in excess of the relevant maximum capacity. It is further
7. ORDERED that within 60 days following the entry of this order, no prisoner shall be assigned to a double occupancy cell or any dormitory in the ISC, or to any multiple occupancy room in the Pinel Annex, unless that prisoner has been properly classified and is housed only with prisoners of the same classification. Prisoners classified as high security, maximum security, and protective custody shall be housed in single occupancy cells, and one or more modules in the ISC shall be designated for exclusive use by prisoners requiring protective custody. Sentenced prisoners shall be classified within 30 days of sentencing and, until classification, shall be assigned to single occupancy cells in modules reserved for unclassified sentenced inmates. Modules and dormitories shall be restricted by class of prisoners (sentenced or pretrial) and, to the greatest extent feasible, by classification. It is further
8. ORDERED that within 14 days following the entry of this order, defendant shall cause intake medical screening of all prisoners assigned to the ISC and the Pinel Annex to be completed within seven calendar days of the prisoner's incarceration. It is further
9. ORDERED that within 14 days of this order defendants shall cause the results of tuberculin skin tests to be examined and evaluated by appropriate medical personnel no earlier than 48 and no later than 72 hours following administration of the test. It is further

10. ORDERED that within 14 days of this order defendants shall deploy security staff members whose primary duties shall be the monitoring and detection of fires and fire hazards, including but not limited to the presence of excessive quantities of flammable materials, obstructions to fire exits, and inoperative fire alarm and fire suppression equipment. Each such staff member shall be responsible for no more than two housing units in the ISC or one wing in the Pinel Annex. Defendants also shall notify the local fire marshal that the maximum occupancy capacities of the ISC and the Pinel Annex are being exceeded. It is further
11. ORDERED that commencing immediately all fire detection and suppression equipment in the ISC and the Annex shall be maintained in proper working order and shall be inspected regularly and frequently by qualified institutional personnel and representatives of the State Fire Marshal's office. It is further
1264 *1264 12. ORDERED that within seven days of the entry of this order defendants shall rearrange the beds located in dayrooms and dormitories so that beds are separated by unobstructed corridors of at least 36 inches in width. No such corridor shall terminate at either end at a solid wall. Additionally, to assist in the prevention of transmission of disease, beds in dayrooms and dormitories shall be rearranged to ensure that prisoners sleep head-to-foot. It is further
13. ORDERED that within 30 days of the entry of this order defendants shall balance and repair the ventilation system at the ISC to ensure that the system operates properly and effectively. It is further
14. ORDERED that within 14 days of the entry of this order defendants shall take all steps necessary to ensure that proper sanitary conditions are maintained in the kitchen of the ISC and the food service areas of the Pinel Annex and that all necessary precautions are taken to ensure that food is prepared and served in a manner that does not endanger the health of prisoners.
Orders numbered 1, 2 and 3 shall not apply to inmates charged with murder in the first degree, rape, first degree sexual assault, first degree child molestation, and any prisoner arrested for a crime of violence against the person while bailed under the foregoing program, supra.
The court-appointed Master, J. Michael Keating, Jr., shall monitor the defendants' compliance with this Order.
APPENDIX A
ORDER
Feb. 5, 1990.
In this Court's Order of October 21, 1988,[1] defendants, Governor Edward DiPrete and John J. Moran, Director of the Rhode Island Department of Corrections, were found to be in contempt of court for having failed to comply with certain provisions contained in standing orders of this Court regarding the conditions of confinement at the state's Adult Correctional Institutions (hereinafter "ACI"). These orders included the prohibition against housing pre-trial detainees in dormitories, the limitation on double-celling any pre-trial detainee for more than thirty days, and the population cap of 250 persons at the Intake Service Center[2] (hereinafter "ISC"), this last having been entered with the consent of the parties. Defendants were ordered to file with the Court by November 21, 1988 a specific and detailed plan, to be approved by the Court, which would ensure compliance with the enumerated provisions. The Court further ordered that the defendants might purge themselves of contempt by implementing, by February 20, 1989, their plan to comply with the standing orders. Finally, the Court ordered that, if defendants failed to file a plan with the Court by November 21, 1988 or if they failed to bring the ISC into compliance with the court orders by February 20, 1989, fines would accrue at the rate of $50 per day for each person held in the ISC in excess of the 250 population limit. Without detailing the interim actions, the bottom line is that the state failed to comply and sanctions were imposed by this Court's Order of April 6, 1989, which Order was affirmed by the Court of Appeals.

On December 5, 1989 the Court held a compliance hearing as called for by its Order of April 6. Counsel have 1265 submitted their briefs, and I now must decide whether or not the ISC of the ACI is in compliance *1265 with the
Court's standing orders as they relate to:
a. the population cap at that facility at 250,
b. the prohibition against housing detainees in a dormitory housing,
c. the injunction against double-celling detainees for more than thirty days
d. the prohibition against intermingling sentenced inmates and detainees in the same housing area of the ISC.
In the past, specifically since August 1977, when I have had to make such decisions in this difficult, complex and frustrating litigation, I have had the invaluable expert help of court-appointed masters; for the greatest portion of the time I have had the services of J. Michael Keating. He has been the fact-finder, the evaluator, the generator of show cause orders in 0907 short, the eyes and ears of the Court. Within the intimate and confidential clique of Mr. Keating and my brilliant young law clerks I have been able to issue orders and forge opinions which received the approbation of the First Circuit Court of Appeals. Once more this process looms before the Court; if remedial orders are mandated, they must be supported by findings of fact and evolving legal conclusions that are premised on an exhaustive record, including the recommendations and opinion of impeccable experts. If such orders are needed, bald realism presages that dramatic orders, unlike the benign ones of the past (this Court has, indeed, been benign and has acted with Job-like patience when compared with the actions taken by many other courts throughout the country), may issue. Prompted by these concerns and the desire to give counsel the benefit of a different approach that a fresh mind might take, I conferred with all the attorneys, namely Alvin Bronstein, George Vetter, George Cappello and David Dugan. Without impugning, in the least, the assistance I have received in the past, it was agreed that this Court should appoint an expert who has not been associated with this interminable litigation and who may be able to view it from a fresh perspective, if such new perspective does exist. This expert is to examine the conditions at the ISC, to submit a report and recommendation to all the interested parties, and to be cross-examined by counsel who may, if they so desire, then present testimony of their own. All parties have agreed on the duties to be performed by the expert as hereinafter set forth.[3]
Accordingly, pursuant to Fed.R.Evid. 706 the Court hereby appoints Vincent M. Nathan as an expert in this litigation as it pertains to the ISC. He graduated from the University of Oklahoma College of Law in 1959; was a professor of Law and has served as a member of the faculty of the College of Law of the University of Toledo for sixteen years; authored "The Use of Masters in Institutional Reform Litigation," 10 Tol.L.Rev. 419 (1979), republished and distributed by the Federal Judicial Center; and acted as a consultant for the National Institute of Corrections. He is recognized as one of the country's foremost experts in the field of corrections. Professor Nathan has served as a special master or special monitor in Taylor v. Perini (Marion Correctional Institution in Marion, Ohio); Jones v. Wittenberg (Lucas County Jail in Toledo, Ohio); Guthrie v. Evans (Georgia State Prison, Reidsville, Georgia); Ruiz v. Estelle (entire Texas prison system); Duran v. Anaya (medium and maximum security prisons in the State of New Mexico) and Feliciano v. Barcelo (Puerto Rico's adult penal institution).
Mr. Nathan is hereby charged with the duty of conducting an investigation, inspection and study of the Intake 1266 Service Center,[4] with authority to employ an assistant *1266 as may be necessary, and rendering to the Court
and all parties named herein his expert advice and opinion on each of the following questions:
1. In the original 1977 Order this Court prohibited "dormitory housing" of pre-trial detainees. In the setting of today's critical overcrowding it would appear that, at least temporarily, this prohibition should be removed. Do you so advise? If not, why not?
2. Conceding that sentenced and pre-trial detainees must not be housed together, is there an immediately acceptable way, in view of the crises that presently exists (i.e., unavailable facilities to ease the present excessive overcrowding), to temporarily permit such intermingling so as to do minimal violence to such prohibition? If there is no such acceptable way, what advice do you offer this Court?

3. The defendants ask this Court to permit double celling of the inmates in the ISC in excess of 45 days at the discretion of the Director of the Department of Corrections. In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) the United States Supreme Court held that there is no one man "one cell principle lurking the Due Process Clause of the Fifth Amendment"; it stated "[w]e simply do not believe that requiring a detainee to share toilet facilities and this rather admittedly small sleeping place with another person for generally a maximum period of 60 days violates the Constitution". Realizing the applicability of this teaching by the United States Supreme Court may be dependent on the daily period of confinement imposed on the inmates as well as other conditions, is there any compelling reason why I should not grant the defendants' motion?
4. If I should conclude that dormitory housing, intermingling of pre-trial detainees, and double-bunking should be temporarily permitted, why can I not
a) set the time limit for achieving compliance with the Court's orders to November 1990 (the anticipated date for completion of new facilities)?
b) reset the population cap at the ISC at 450-475 but only to November 1990?
5. In the April 6 Order I ordered that $164,500 of accumulated fines be paid to the Department of Corrections to finance an Emergency Overcrowding Relief Fund for the purpose of providing bail for indigent pre-trial detainees being held for want of $5,000 cash bail or less. And I further stated that when "Project Bail" (being then prepared by the Governor) was implemented, the Emergency Overcrowding Relief Fund would be discontinued and any monies left in the Fund would be transferred to Project Bail. The plans for Project Bail were completed, but I suspended the aforesaid transfer of funds because the legislature had superimposed on the conditions set by the judges of the state courts for the release of detainees additional conditions which ignored the state courts' responsibility in setting the bail. These conditions stalled the emergency release of prisoners determined eligible for bail but who were indigent at the time bail was set. Whereupon, the state immediately suspended Project Bail, contending it would have no one to bail. The contempt fines have almost been exhausted in releasing 331 detainees; as a consequence of this and the state's actions, detainees who could have been considered for release under Project Bail or the Emergency Overcrowding Relief Fund have no such remedy available to them. Because of the state's unfortunate discontinuance of Project Bail, do you recommend the imposition of another substantial fine by this Court, to be used as an Overcrowding Relief Fund? If so, what amount do you advise and to what extent will the utilization of such fine help relieve the present congestion?
If question 4 is answered affirmatively, it may be argued that no other action is necessary at this time. However, in answering the foregoing questions the expert will include in his study the consideration that the overcrowding is an ongoing problem and all answers and advice must be premised upon population projections to November 1990.
1267 *1267 6. Does a study of the ISC's population show that if the facility was used only for detainees it would be in compliance with the Court's present orders? Assuming the answer is in the affirmative, should the present sentenced prisoners be ordered removed so as not to impose the resultant hardship, caused by their presence, on unconvicted individuals who are presumed innocent? If so, what advice do you give as to how this can be accomplished? (Note testimony of John Moran at the December 5 hearing in this regard.)
7. In answering the foregoing questions, the expert must bear in mind that the Court has in vain repeatedly urged the state to consider and implement a bail project, home confinement, an accelerated release program, and halfway houses. I fear it will serve no useful purpose to revisit that same ground. If the expert finds no satisfactory temporary relief in his answers to the foregoing questions, must the Court resort to remedies within its power such as but not limited to:
1. Order accelerated release of as many inmates as may be necessary to correct the problems at the ISC. If so what program does the expert offer?
2. Order that no further detainees be accepted at the ISC until there is compliance with the population cap?

3. Continue the Emergency Relief Fund?
See Fambro v. Fulton County, 713 F.Supp. 1426, 1432-33 (N.D.Ga.1989); Duran v. Elrod, 713 F.2d 292 (7th Cir 1983); Twelve John Does v. District of Columbia, 855 F.2d 874 (D.C.Cir.1988).
I realize that this study will take time. I urge that every effort be made to expedite answers so that a hearing may be held and a court order ensue. I repeat what I have stated before. Of greatest concern to this Court is the likelihood of violent loss of life or serious physical injury for detainees and prison personnel resulting from overcrowding beyond the limit set for this particular facility.
All parties have agreed to the appointment of Vincent Nathan, who has consented to act as the court-appointed expert. Prior to the filing of this Order, a copy was submitted to all parties for any deletions, additions, modifications or corrections they wished to make. This order represents the concerted participation of all concerned, including their concurrence that compensation for the expert shall be borne equally by the plaintiff and defendants.[*]
SO ORDERED; a copy will be filed with the Clerk of Court.
APPENDIX B
EXECUTIVE SUMMARY OF REPORT OF THE COURT APPOINTED EXPERT
Upon receipt of the final version of the Report of the Court Appointed Expert, the Court requested that the expert prepare a summary of his conclusions and recommendations based on the detailed findings contained in that report. In addition to summarizing those findings and recommendations, this document also will underscore the relationship the expert has found to exist between crowding and the findings and recommendations made by the expert in his earlier report.[1] This summary assumes familiarity with the specific findings and recommendations contained in the more comprehensive report and is not intended to modify any of those findings or recommendations.
After describing the scope of the expert's charge and the methodology used to prepare the comprehensive 1268 report, the expert described the physical configuration of the ISC and the Annex. Based on that *1268
description, he then addressed the population density in the two facilities. The sections on the physical configuration of the facilities and population density, in combination, establish the severe extent of overcrowding throughout the ISC and the Annex. All but a handful of cells in the ISC are double-celled, and prisoners are assigned to all dayrooms except in Module C, the disciplinary module. In addition, converted office space, hallways, former programmatic space, and the law library are used to house prisoners. In some of these makeshift housing units, no sanitary facilities are present, and inmates must make use of bathrooms and showers in adjoining modules. Both outdoor exercise and indoor recreation are severely affected by the number of prisoners required to use the limited facilities that are available.
Crowding is particularly acute at the Annex, where living space for prisoners ranges from 13 square feet to 60 square feet per prisoner, including the space consumed by beds. When bedspace is subtracted, prisoners in one room at the Annex have access to only 2.8 square feet per prisoner. In summary, inmates have been assigned to virtually every nook and cranny in these facilities.
One result of overpopulation is that an inadequate number of hygiene facilities is available for use by prisoners. The worst example of this effect of crowding is reflected in Module D, where the ratio of toilets to prisoners is 1:53, the ratio of lavatories is 1:26.5, the ratio of shower-heads is 1:26.5, and the ratio of urinals is 1:53. Although less dramatic elsewhere, the strain on hygiene facilities is apparent throughout the ISC and the Annex.
On February 26, 1990, the ISC and the Annex held 797 prisoners. Of this number, 563 were assigned to the ISC and 234 were assigned to the Annex. At these population levels, the degree of crowding observed by the expert

was shocking. To make matters worse, the National Council on Crime and Delinquency projects a significant increase in the pretrial and sentenced populations of the ACI between now and October or November of 1990, when the permanent addition to the ISC is scheduled to open. Moreover, the Department's own projections anticipate an increase in pretrial prisoners by October 1990 of twice that predicted by the NCCD, and the Department's projection of its sentenced population is for only eight fewer prisoners than are projected by the NCCD. Thus, although the defendants anticipate increases in bedspace in October and November of 1990, there is a consensus that population pressures will increase dramatically between now and the time new construction becomes available.[2] Given the effects of the existing levels of population in the ISC and the Annex, which will be summarized below, it is the expert's opinion that the degree of overcrowding that will develop between now and November 1990 will be entirely unmanageable and that immediate and dramatic relief is urgently needed at this time.
Even at the current population level, security staffing is inadequate, and heavy reliance is placed on use of overtime. Surveillance of modules and makeshift housing units in the ISC is dangerously deficient, and surveillance of housing units in the Annex is almost nonexistent. Moreover, the effects of fatigue and burnout experienced when correctional officers work as many as five consecutive shifts further compromise the safety and security of inmates and staff. Until the population of the two facilities is reduced to tolerable limits, neither the ISC nor the Annex, in the opinion of the expert, can be regarded as providing a minimally adequate degree of safety and security.
1269 The level of non-security staff reflects the dearth of programmatic activities and *1269 services available to prisoners. Apart from medical and mental health staff, only 17 part-time or full-time non-security staff are employed in the ISC and the Annex. Medical staffing provides only 15 hours of onsite physician coverage, and more registered nurses are desperately needed. At the present time, nursing staff work huge numbers of overtime hours requiring nurses to work as many as seven or eight consecutive shifts.[3] Licensed practical nurses regularly practice beyond the scope of their licensure.
The employment of more security and non-security staff, however, will not suffice to address the problems of inadequate programs and services throughout the ISC and the Annex. Even if more staff were employed, there is no physical space in which they can work. There simply are too many prisoners to permit provision of minimally adequate programs and services to prisoners, and staff presently attempting to accomplish the impossible exhibit the effects of extraordinary strain and frustration.
The extent of crowding throughout the ISC and the Annex is rendered even more dangerous by the virtually complete lack of classification of pretrial prisoners and lengthy delays in classifying sentenced inmates. Although efforts are made to identify low risk prisoners for assignment to the Annex, classification, even to the limited extent it occurs, has no bearing on a prisoner's assignment to a particular housing unit, cell, or bed at the ISC or the Annex. The exception to this state of affairs, the assignment of prisoners requiring protective custody, is equally problematic because these prisoners are housed in two open dormitories with limited surveillance. Although classification cannot be expected to make the current, not to mention the projected, population levels of the ISC and Annex acceptable, the virtually random mixing of sentenced and pretrial prisoners, without knowledge of proclivity for sexual assault or vulnerability to sexual imposition and without regard for the potential for escape or violence, heightens the risk of an already critical level of harm. The same is true of mixing of sentenced prisoners of all classifications without regard to these factors. The absence of a rational and timely classification system of pretrial and sentenced prisoners precludes the safe use of double occupancy cells or dormitories for any prisoners in the ISC or the Annex.[4]
Crowding and the ramifications of crowding that already have been discussed combine to increase the incidence of serious and dangerous disciplinary infractions, to increase the use of force to control prisoners, and to deprive prisoners of any significant degree of meaningful programming at the ISC and the Annex. The level of violent disciplinary offenses, including assaults against inmates and assaults against staff, is unacceptably high. Moreover, crowding prevents the swift imposition of disciplinary segregation as punishment for serious misconduct, because the physical facilities of the ISC cannot provide the number of disciplinary isolation cells that are needed. Indeed, half or more of the institution's disciplinary cells are double-celled at this time, and many prisoners are assigned to "disciplinary segregation" in double-celled facilities in general population or to beds in

open dormitory areas in dayrooms. Thus, the degree of crowding presently being experienced in the ISC and the Annex both increases the likelihood of serious disciplinary offenses and makes effective punishment of offenders 1270 impracticable. Without doubt, this state of affairs contributes *1270 directly and substantially to an environment in which neither inmates nor staff are safe.
Crowding also is directly related to the need for officers to use physical force to control prisoners. Many uses of force result from tensions created by crowding, e.g., limited numbers of telephones and hygiene fixtures and the insecurity of personal property in makeshift dormitories. Moreover, there is a constant danger that otherwise controllable incidents will become uncontrollable when they occur in open areas such as dayrooms, where many inmates are congregated at the time trouble erupts. The reality of this danger is underscored by the fact that 42% of the uses of force reported at the ISC between January 1988 and February 1990 occurred in dayrooms.
Idleness in the ISC and the Annex is pervasive. There simply are not enough meaningful jobs or programs to keep prisoners busy. During 1989, between 96 and 114 inmates were employed in any capacity, and most of these jobs were hallway/module porter positions involving a substantial degree of underemployment. The dearth of work opportunities is exacerbated by the near total absence of other forms of programming 0907educational, general or law library, counseling, or other program activities. Some 52 prisoners are involved in part-time academic educational programs at the ISC, and no vocational education of any kind is offered at the ISC or the Annex. No educational activities other than the distribution of art supplies twice each week are available to prisoners in the Annex.
Apart from book carts with a limited selection of reading materials that are located in modules at the ISC and the Annex, there are no general library facilities for prisoners, and the former law library at the ISC now is used to house prisoners. Prisoners cannot obtain legal materials unless they know what precise books they need, and they must request these books from the part-time law librarian responsible for the entire ACI. Crowding has created unmanageable caseloads for counselors, virtually precluding any provision of meaningful counseling services to prisoners. Although prisoners may engage in out-of-cell "recreation" some eight to nine hours per day, crowding in dayrooms at the ISC and the Annex and in outdoor recreation areas at the ISC renders this opportunity illusory, and many inmates forego opportunities to recreate because of the crowded conditions they encounter. Visiting also is affected by crowding, as visiting facilities are inadequate to accommodate the number of prisoners held in the two facilities. Beyond the programs that have been described, limited religious programming and movies that are shown in modules two or three times a week constitute the remainder of a prisoner's programmatic activity at the ISC or the Annex.
The extremely limited work and programmatic activities at these facilities, all directly linked to crowding, increase tension among inmates and lead directly to misconduct and use of force. Idleness contributes substantially to an institutional atmosphere that is both dangerous and degenerative.[5]
Finally, the number of prisoners assigned to the ISC and the Annex makes it impossible to maintain reasonably sanitary conditions or to provide routine maintenance necessary to protect the health and safety of prisoners and staff. Crowding has rendered the preventive maintenance program a token operation, as day-to-day reactive maintenance needs, particularly those related to overtaxed hygiene fixtures, mount and are met by an inadequate number of staff. In-house inspections repeatedly note the same environmental deficiencies and the absence of corrective action. The same inspections indicate that ventilation is altogether inadequate, particularly at the Annex, and that potentially hazardous foods are held repeatedly at unsafe temperatures.
1271 The combination of conditions described thus far would be unacceptable even if *1271 prisoners were exposed to them only for short periods of time. This, however, is not the case. A study that was conducted by the expert with respect to sentenced prisoners establishes that the average time these prisoners spend in the ISC and the Annex is 155 days (22 weeks) and that the longest time any sentenced prisoner in the sample spent in these facilities was 774 days. As of February 26, 1990, 75% of the 303 sentenced prisoners in these facilities had been assigned to the ISC or the Annex for more than 45 days. Thus, confinement in the intake facilities is not a short-term status, and the deleterious effects of extreme crowding demonstrated in the expert's report affect large numbers of prisoners for substantial periods of time.

In summary, the ISC and the Annex are critically overcrowded at this time and threaten to become even more crowded between today and November 1990. In at least some instances, the degree of population density, in and of itself, is altogether unacceptable, quite apart from the other effects of crowding. The provision of a mere 2.8 or 13 square feet of living space for prisoners is per se indefensible in the expert's opinion, as is the provision of fewer than 13 square feet of dayroom space for indoor recreational activities. Although not all prisoners suffer such extreme deprivations of space in which to live and sleep, all prisoners in both facilities are exposed to the dangers of understaffing and inadequate surveillance, violence, ineffective discipline, use of force, idleness, absence or inadequacy of critical services, and unsanitary and unhealthy environmental conditions that are direct results of crowding. Moreover, and the expert cannot stress the point too strongly, the excessively dangerous conditions in the ISC and Annex are magnified immensely by the absence of classification and the inability to implement classification decisions that are made because of crowding. By all standards, the ISC and the Annex are correctional disasters, and, as the Court has noted in more than one of its opinions in this case, these facilities are even more violent disasters waiting to happen.
In his comprehensive report, the expert responded to a number of questions set forth in the Court's order of February 5, 1990. In this summary, the expert will concentrate his discussion on the answer to the last of these questions, which subsumes the others. That question is,
In the absence of satisfactory temporary relief, what remedies does the expert recommend the Court adopt?
The expert strongly believes that the maximum number of prisoners that can be housed in accordance with minimum standards of safety and decency is 250 at the ISC and 90 at the Annex, and he made several recommendations in his comprehensive report to accomplish these objectives as promptly as possible in keeping with public safety. He has recommended that at least $1,000,000 be made available immediately, either through the levying of a fine or, if such an alternative is feasible, by directing defendants to make the full faith and credit of the State of Rhode Island available in at least this amount to finance an Overcrowding Relief Fund designed to divert from ACI facilities pretrial prisoners with bail set at $10,000 cash or less (or its equivalent). He also has recommended consecutive awards of accelerated good time to all sentenced prisoners in the ACI, excepting perhaps prisoners convicted of certainly carefully and narrowly selected, extremely serious offenses, in order to reduce the sentenced population in intake facilities. These two recommendations, if implemented, promise rapid reduction of both the pretrial and sentenced population in the ISC and the Annex.[6]
1272 *1272 In order to ensure that these actions will achieve the necessary reduction in population, the expert also has recommended a timetable for reduction of the population of the ISC and the Annex to 250 and 90, respectively, and the imposition of substantial fines in the event defendants fail to achieve these reductions. Moreover, in order to permit even these numbers of prisoners to be held in these facilities, the expert has recommended that no later than 60 days following the entry of the Court's order, by which time the population of the ISC should have fallen to 350 and the population of the Annex should have fallen to 134, classification restrictions be imposed on assignments to double occupancy cells and dormitories.
Finally, the expert has recommended that the responsibility remain with defendants to achieve the recommended maximum capacities in the event that the Overcrowding Relief Fund and the expedited awards of good time fail to accomplish these objectives. The success of both of these mechanisms will depend to a large extent on the actions of state officials who are not parties to this lawsuit, judges who set bail and members of the parole board.
All of these recommendations are directly related to the problem of extreme crowding in the ISC and the Annex and to amelioration of the ramifications of crowding that are described in detail in the expert's comprehensive report. The expanded implementation of the Overcrowding Relief Fund will reduce the intake of prisoners into the ISC and the Annex, and expedited awards of good time will increase the flow of prisoners from all ACI facilities, thus reducing pressure to hold sentenced prisoners in intake facilities beyond the time that is required to classify them. Vigorous enforcement of maximum capacities according to the timetables recommended by the expert will be required to ensure the effectiveness of these remedial actions, and the recommendations of the expert relating to classification must be implemented to permit more than 168 prisoners to housed in the ISC and to

permit any use of the Annex. The expert's final recommendation simply ensures that the defendants ultimately will shoulder the responsibility of maintaining constitutional conditions in the ISC and the Annex.
In conclusion, the expert believes that crowding in the ISC and the Annex has reached crisis proportions that demand immediate action by the Court. The recommendations set forth in detail in the comprehensive report and reiterated in abbreviated fashion in this summary constitute the expert's best judgment regarding the nature of the immediate action that is urgently required.
Respectfully submitted, /s/ Vincent M. Nathan Vincent M. Nathan
[1] At midnight on May 9, 1990, there were 557 persons housed at the ISC and 223 in the Pinel Building.
[2] Mr. McManus qualified in 1985 as an expert in this litigation. He has been the Deputy Commissioner of Corrections for Minnesota and the Director of Corrections for Kansas. Since 1985, he has served as a special master for a federal district court in litigation over the Tennessee prisons and for the West Virginia Supreme Court in litigation over the state prison at Moundsville. Additionally, he has been a member of a compliance panel for the district court in Hawaii.
[3] Mr. Gordon testified as an expert in this Court in 1977 and 1985. He is a senior policy analyst for the District of Columbia's Department of Consumer and Regulatory Affairs. That Department has direct responsibility for monitoring the compliance of the District's correctional facilities with a federal court's order. Mr. Gordon has inspected, in his estimate, three quarters of the state prisons and jails in this country and has been involved in developing environmental health and safety standards for correctional institutions.
[4] Dr. King is the Medical Director and Vice President for Professional Affairs at the Saint Vincent Hospital and Medical Center of New York City. In addition to his responsibilities for the direction of the medical services within the hospital, he is responsible for the provision of ambulatory medical, dental and mental health services at the Manhattan Detention Center in Manhattan as well as two maritime facilities housing additional inmates. He formerly served as the Director of the Montefiore-Rikers Island Health Services in New York City, and as a special master at the Menard Correctional Center in Southern Illinois.
[5] Because the plaintiffs' motion and subsequent hearings were directed only at the overcrowding in the ISC and the Pinel Annex, which house only male prisoners, the order shall apply only to male prisoners. Although the Court cannot so order, it is hoped that defendants will voluntarily apply the terms of this order, to the extent possible, to female prisoners.
The Court recognizes that the effect of this portion of its order may be that some prisoners sentenced to 90 or fewer days of incarceration will be released without serving any time in prison. First, the extreme gravity of the situation at the ISC and the Pinel Annex justifies this relief. Second, granting an award of expedited good time to prisoners with longer sentences, who presumably have committed more serious offenses, while excluding from this order prisoners whose short sentence suggest that they present the least danger to the community, would be anomalous.
[1] The Court's Opinion and Order is reported as Palmigiano v. DiPrete, 700 F.Supp. 1180 (D.R.I. 1988). Familiarity with this opinion is assumed.
[2] The ISC was designed to house 168 persons0907 pre-trial detainees and newly-convicted offenders, the latter referred to as "admission and orientation" inmates (hereinafter "A & O inmates"). As long ago as 1985, corrections officials made plans to transfer these A & O inmates as a way of dealing with overcrowding at the ISC. Because of crowding in the ACI's facilities for sentenced inmates, however, the ISC has continued to house A & O inmates. Thus the severe overcrowding at the ISC has two components 0907growing populations of both pretrial detainees and A & O inmates." See Opinion and Order, April 6, 1989, pp. 1-2.
[3] A report entitled "Management Study of Rhode Island Department of Corrections" prepared by the Criminal Justice Institute, Inc. and Carter Goble Associates, Inc., dated December 20, 1989, has been submitted to the Governor of this State. At a conference with all parties, the question as to whether or not said study could be

used and thus eliminate the need for an expert, was discussed. It is my opinion, and counsel all agree, that the study will not serve the aims of the Court and the purposes for which the expert is to be appointed.
[4] The ISC and the Pinel Building are to be considered as a unit as both serve the purposes for which the ISC was constructed.
[*] This is not to mean that the Court is unmindful of 42 U.S.C. § 1988.
[1] Crowding is the central issue pending before the Court at this time. As the Court indicated in its unpublished order of July 28, 1987, however,
... the Court's continuing intervention in the ACI must be keyed not to numbers but to the conditions that in their totality violate the constitutional rights of prisoners ... This focus on conditions, however, should not obscure the Court's experience in the long history of this case, which illustrates clearly that excessive numbers lead almost ineluctably to the rapid deterioration of conditions.
See also, Palmigiano v. DiPrete, 700 F.Supp. 1180, 1192 at note 13.
[2] Although defendants project an additional 1,246 "intake" beds by October/November, these projections are based on the unrealistic assumptions of 100% double celling of the permanent addition to the ISC, virtually complete double celling of the ISC (excepting only the disciplinary module), and the assignment of 150 prisoners to the Pinel Annex. In addition, defendants project an additional 340 new beds for medium security male inmates in October/November.
[3] On at least one occasion, a nurse worked eleven consecutive eight-hour shifts.
[4] Although the expert has emphasized the extent to which the absence of classification and the mixing of various classes of prisoners exacerbate the negative effects of crowding, it is equally true that classification cannot be effectively implemented until the population levels of the ISC and the Annex have been reduced dramatically. Classification is meaningless unless it leads to appropriate bed and program assignments identified by the classification process. As long as the population levels of the intake facilities remain at their current levels, let alone at higher ones, module and bed assignments will continue to be bed-driven, and there will not be room for program staff or for the conduct of inmate programming. Only prompt and substantial depopulation will break this dangerous cycle.
[5] As has been pointed out, the use of virtually all available space for the housing of prisoners precludes increases in program staff or in inmate programming.
[6] The expert has refrained from recommending immediate releases from the ISC and the Annex or a moratorium on intake into those facilities not because the problems existing in those institutions fail to justify such drastic action. Immediate releases have not been recommended, because the expert hopes that his recommendations regarding the Overcrowding Relief Fund and expedited awards of good time will adequately address the problem of crowding and its ramifications. Moreover, a moratorium on intake in all likelihood simply would shift admissions and the resultant problem of crowding to other ACI facilities.
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 443 F.Supp. 956 (1977)
Nicholas A. PALMIGIANO et al. v.
J. Joseph GARRAHY et al. Thomas R. ROSS et al. v.
J. Joseph GARRAHY et al.
Civ. A. Nos. 74-172 and 75-032.
United States District Court, D. Rhode Island.
August 10, 1977.
95789 *957 *958 *959 Robert B. Mann, Providence, R. I., Matthew L. Myers, of the National Prison Project, Washington, D. C., John Farley and Joseph L. DeCaporale, Jr., Deputy Public Defenders, Providence, R. I., for plaintiffs.
William G. Brody, Sp. Asst. Atty. Gen., Providence, R. I., Valentino D. Lombardi, Chief Legal Counsel, R. I. Dept. of Corrections, Cranston, R. I., for defendants.
OPINION
PETTINE, Chief Judge.
This is a consolidated class action brought by five prisoners confined in the Rhode Island Adult Correctional Institutions (ACI) and by the National Prisoners Reform Association on behalf of all the prisoners incarcerated at the ACI. The plaintiff class, numbering over 650, includes pre-trial detainees as well as sentenced prisoners. Plaintiffs claim that the conditions under which they are confined violate the Eighth and Fourteenth Amendments to the United States Constitution, as well as various provisions of state law. They contend that the violations are so gross as to justify broad injunctive relief, including the permanent closing of the Maximum Security Building at the ACI complex in Cranston, Rhode Island. No damages are sought in this action.
Plaintiffs make four principal claims. First, that the defendants subject inmates housed in the Maximum and Medium Buildings to constitutionally intolerable levels of fear and violence. Second, that the defendants subject those prisoners to constitutionally intolerable conditions of confinement, including gross filth, unsanitary living quarters, unsanitary food services, dangerously inadequate medical care, and near-total idleness, all causing the physical and mental deterioration of inmates. Third, that pre-trial detainees are punitively subjected to conditions even worse than those suffered by sentenced inmates, and far in excess of any conditions reasonably necessary to insure their presence at trial. Fourth, that prisoners in protective custody are subjected to conditions worse than those suffered by sentenced prisoners, an alleged violation of the equal protection clause of the Fourteenth Amendment.
Jurisdiction of this action arising under 42 U.S.C. § 1983 is conferred by 28 U.S.C. §§ 1343(3) and (4). The class was certified by order of July 23, 1976. Pendent jurisdiction is assumed over the state law claims, since they 960 arise out of the same nucleus of fact as the federal constitutional claims and *960 are likely to reduce the necessity for constitutional adjudication. Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977).
I
After extensive discovery, a trial was held which extended over two weeks. The findings of fact required by Fed.R.Civ.P. 52 are set forth herein, and are based on the testimony received at trial, stipulations by the parties and extensive exhibits, including depositions of various officers of the Department of Corrections. The Court's

task was made easier by the extensive assistance of experts from various fields of corrections, institutional environmental health and sanitation, and correctional psychology. Although their qualifications, with few exceptions, will not be recounted herein, it suffices to say that the Court found them all extremely well-qualified, articulate, and fair. Their testimony was hardly disputed or contradicted by the defendants.[1] The Court also toured the institution during the trial. It should be noted that the Court has extensive familiarity with the ACI stretching over almost a decade. See, e. g., Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970); id., 373 F.Supp. 177 (D.R.I.1974), aff'd 509 F.2d 1358 (1st Cir. 1975); Ben David v. Travisono, 373 F.Supp. 177 (D.R.I.1974), aff'd 495 F.2d 562 (1st Cir. 1974); National Prisoners Reform Association v. Sharkey, 347 F.Supp. 1234 (D.R.I.1972); Souza v. Travisono, 368 F.Supp. 959 (D.R.I.), aff'd in part 498 F.2d 1120 (1st Cir. 1974).
To avoid extending an already lengthy opinion, the Court will not, in most instances, make specific findings of fact regarding deficiencies and inadequacies as they pertain to individual inmates. Extensive testimony, from inmates and from experts who examined inmate records, documents the cumulative case presented here, a case which would be neither added to nor detracted from by recitation of additional incidents.
Approximately 544 of the 661 plaintiff-inmates at the ACI are confined in two buildings at the ACI complex, which will be referred to as Maximum Security or Maximum and Medium Security or Medium. As will appear in greater detail, the latter name is a misnomer, for the inmates housed therein are with few exceptions all inmates classified as maximum security, but granted protective custody to protect them from other inmates, either at their own request or by decision of the Department. Approximately 117 other inmates, in minimum custody and workrelease programs, are housed in other buildings at the ACI complex. As did the parties at trial, this opinion will focus on the conditions under which the 544 inmates in Maximum and Medium are confined.
1. Living Conditions in Maximum Security
The Maximum Security Building is over 100 years old, built for a capacity of 55 inmates at a time when penological practice dictated that prisoners be incarcerated in their cells throughout their imprisonment. It was well designed for that purpose, but it is inadequate for twentieth century correctional purposes. For at least the last five years, Maximum has held over 420 inmates, usually including 125 pre-trial detainees and 25 recently sentenced inmates, who by law are supposed to be confined apart from the general population for up to 30 days. At trial, the defendants finally conceded that Maximum has outlived its usefulness, and that it is unmanageable for anywhere near the number of inmates now confined there.
The building consists of massive iron cellblocks, arranged usually with cells in three ascending tiers reached by catwalks. The walls of the building are made of porous stone. They are impossible to keep clean and are encrusted with literally decades of dirt and grime. Between the tiers and the outer wall there is a walkway. The 961 huge windows on the outer wall contain *961 numerous broken or missing panes of glass. The window ledges are heaped with dust, dirt, and assorted trash. It is plain that no serious attempt has been made to clean them in months, if not years. By all accounts, housekeeping has deteriorated throughout Maximum drastically, and irremediably, in the last decade. Without major reconstruction and renovation, it is impossible to maintain minimum standards[2] of sanitation and cleanliness in Maximum. A number of experts with wide experience in managing and studying prisons across the country testified that Maximum was the filthiest prison they had ever encountered. The Court accepts this assessment as accurate; certainly, nothing that the Court observed on its view of Maximum would in any way undermine its credibility. Trash abounds on the floors and in empty cells. The entire structure is massively infested with cockroaches, rodents, mice, and rats, each of which carries disease throughout the prison. There are cats living in Maximum, and cat feces were observed on the floors of living areas and the showers. In parts of the building, the roof leaks rainwater, and tiles were falling off the ceiling onto the floor.
Plumbing throughout Maximum is unsanitary, inadequate, and an imminent danger to public health. It is as old as the building. Only cold water is available in inmate cells, although minimum standards for correctional institutions formulated, inter alia, by the Department of Justice require hot water as a health measure. Pipes are not equipped with vacuum breakers, creating an ever-present danger that waste water will back up into the fresh water system, even in the food preparation area. There is no regular maintenance program to guard against this

threat. Plumbing leaks throughout the cell tiers, particularly in the service areas which run down the middle of each tier dividing the front from the back cells. Because these service areas house the electrical wiring, the leaking pipes present a serious risk of electrical fire. The damp conditions in the service areas are an ideal breeding area for the swarming cockroaches, which exist in all stages of development.
In the lavatories, the Court observed large pools of standing water on the floor, and apparently this is always present. There was a stench of urine coming from this water. The shower areas were filthy, covered with mold and mildew on the floors and the walls. Glass, trash, and dead cockroaches are everywhere on the shower floors. Not infrequently, inmates burn themselves on the hot water pipes which rise uncovered in the showers.
Lighting is inadequate for prisoners to read safely in their cells. Minimum standards require 30 foot-candles; the average range in Maximum was between 10 and 15. Aside from the adverse effects on prisoners' vision, inadequate lighting increases tension and fatigue among prisoners and guards. Not incidentally, adequate lighting could serve as a significant deterrent to the appearance of roaches and rodents.
The noise level throughout Maximum is deafening and maddening, and must inevitably increase the levels of 962 both tension and psychological distress. There is a constant din from radios and televisions, each attached *962
by a wire antenna from the cells to the outer windows in a grotesque Maypole effect.
The heating and ventilation system is antiquated and incapable of providing minimally adequate heat and ventilation. Heating pipes are all located on the outer walls. There is no mechanical system to transfer and spread hot air, or fresh air. As a result, most cells are cold throughout the winter. One expert took readings in the lower cell areas and found the midday temperature at 50° in January and 55° in April. Minimum standards for institutional health are presently set by public health experts at 65°. Prisoners and guards make frequent complaint of winter cold, which lowers resistance to disease. Another expert observed that he had never before inspected a prison where inmates and guards wore heavy coats, day and night, during the winter. Nor is the unacceptable level of discomfort confined to the winter months. During the summer the institution is unbearably hot and damp, and the top tiers are particularly stifling.[3] Indeed, it was not disputed that the present heating and ventilation system in Maximum is incapable of providing minimally adequate heating according to relevant public health standards, and that it cannot be upgraded without uneconomic expenditures.
There are numerous fire hazards throughout the institution, a cause for grave concern. Many prisoner mattresses are made of a polyurethane foam material which for more than a year has been banned for consumer use by the Federal Consumer Product Safety Commission because of the poisonous fumes it releases on combustion. The Court takes judicial notice that between the time of trial and preparation of this opinion, 42 inmates died in a Tennessee jail fire, reportedly from inhaling fumes released by polyurethane used in mattresses and padded walls.[4] The urgency of this situation cannot be overstated, for it is common for prisoners in Maximum to set fire to other prisoners' cells. In an attempt to secure a measure of privacy, and to reduce cold drafts, many inmates have woven paper plates, magazine covers, and other paper goods between the iron bars of their cell doors. It is apparent that this practice is a major fire hazard. Worse, it occurs on many upper tiers which have only a single means of egress, inadequate by any minimum standards of fire safety.[5] Among the other serious fire hazards, the Court particularly notes the clothes dryer area in the Behavior Control Unit (BCU), of Maximum, which is inadequately ventilated. Indeed, nearly all the laundry areas present a serious risk of electrical fire, with exposed electrical wiring and overused domestic washing machines designed for home use.
Conditions in the food service area in Maximum were so deplorable that plaintiffs' public health expert testified that the food service operation presented an imminent public health danger and that he would order it closed immediately if it were under his jurisdiction. There was evidence of rats, mice, and cockroaches throughout. The Court observed sacks of grain and boxes of crackers stored on top of garbage cans outside the kitchen door, which was wide open, with pigeons wandering about. Stoves and ventilation hoods were encrusted with grease 963 and grime. Mice droppings were found in open food containers in both *963 the dry and cold storage areas. The kitchen floor was filthy. One expert observed dead pigeons and flies surrounding the solid waste disposal area, which was just outside an open kitchen door in one of the recreation yards. Tools used to cut meat were filthy. Grease covered kitchen equipment.

Peeling paint was falling from the ceiling throughout the kitchen area, especially in cold food storage area and the dishwashing area, a product of inadequate ventilation and maintenance. This paint is of such ancient vintage that it likely 0907 though no tests were performed 0907 contains lead. Tiles were missing from the walls, and the exposed underwall cannot be cleaned. There was water on the kitchen floor, as well as grease, a serious safety hazard. Plaintiff's public health expert testified that the food temperature he found on a number of testings was in each instance far below the minimum standards necessary to retard bacterial growth. Food preparation, the experts testified, met none of the generally accepted minimum standards for institutional health.
The plumbing in the food service area was also deficient. Hot water was leaking from one pipe. There are no handwashing facilities in this area, nor in an adjacent toilet used by the inmate-staff of the food services.
The inmates who work in the food service receive no training. The lack of training and obvious lack of leadership by outside staff are major causes of the deficiencies observed.
The industrial shops were similarly in a general state of disorder. The floors showed no evidence of recent sweeping. Dirt and grime were spread over machines. A public health expert noted numerous safety hazards, and concluded that no attempt is made to keep the shops either orderly, clean, or safe. There is no safety instruction for inmates working in the shops, nor are there any safety signs.
Environmental health standards in the infirmary area were no better than in the other areas of the prison. The infirmary failed to meet minimum standards for the control of infectious disease. For example, two patients with suspected hepatitis were placed at the back of a ward, necessitating their having to pass through other sick inmates on their way to the shower or lavatory, which they shared with other inmates. Pre-trial detainees for whom there is no room in the Awaiting Trial section are often housed in the infirmary, together with infectious patients. There is no written infection control manual for the infirmary staff, which is largely untrained. There was dirt and trash on the floors, and the bathroom was no more sanitary than the bathroom facilities in the rest of Maximum. The shower drain was defective. Screens on the windows were blocked with debris and dirt. Colostomy bags are simply deposited with other trash in a garbage barrel in the infirmary dormitory. The temperature of the food served to patients was tested and found to be inadequate to retard bacterial growth. Hospital staff were without training in use of the X-ray unit.
Housekeeping throughout Maximum has broken down. Although there is abundant evidence of lack of attention to housekeeping in the cells of various prisoners, the situation is even worse in the common areas of the prison, which must be the basic responsibility of management. The condition of the floors was uniformly bad, with cigarette butts, wrappers, and coffee cups strewn everywhere. There was no evidence which would show that Rhode Island prisoners, unlike prisoners in other states, cannot be motivated to keep the prison acceptably clean. The abdication of any attempt by the Department to maintain a healthful and minimally clean institution was apparent and is a telling comment on the leadership ability of current management. Without question, the age and construction of the building itself are in part responsible. But even in newer parts of the ACI, the housekeeping situation was hardly better, stark evidence of the Department's failure to lead and control. Plaintiffs' public health expert testified that the kitchen area was of good construction and could be kept acceptably clean 964 with proper attention and *964 cleaning materials. It is not kept clean. It was not disputed that inmates request, and are refused, basic cleaning supplies, such as clean mopheads and soaps, to improve the conditions of their own cells and common passageways. In light of the overall situation it is hardly surprising that some inmates do not clean their own cells. As one witness asked, "what good is an island of cleanliness in a sea of filth?"[6]
Based on the foregoing, the uncontradicted testimony of each of the experts, the Court finds that Maximum presents an imminent public health, fire, and safety hazard. The Court was particularly struck by the testimony of one expert who had directed the prison systems in both Minnesota and Delaware for a number of years. He observed that the ACI was the only prison he had ever visited for which he could find nothing good to say. In common with other witnesses, he found every evidence of a management overwhelmed by the problem of managing a population of prisoners in a building of so many problems, and a staff so accustomed to conditions of deterioration that they had become inured to what they lived with. These conditions and this attitude have a devastating impact on inmates, reinforcing their low self-esteem and making rehabilitation impossible. An expert engaged by the state to counter this testimony was not produced at trial. As the Commissioner of Corrections

explained to Governor Garrahy, "this individual was unable to say much good about these matters". On the basis of the physical conditions alone, Maximum is clearly unfit for human habitation according to any criteria used by public health officers or professional corrections personnel. One public health officer with wide experience testified simply that the ACI has "all the egregious deficiencies that could possibly exist". As Governor Noel informed the Legislature last year:
As a symbol, the current maximum security facility tells us a good deal about what is wrong. It is antiquated, in disrepair, and cannot support basic services. Time and events have left this brooding structure fixed, rigid, unresponsive; unable to meet the increasing demands of the passing years. And yet, tragically, ten decades after it was opened to admit 55 prisoners, nineteenth century architectural and penology concepts endure within a facility that now imprisons over 400 inmates.
That recurring conflict results is inevitable. The mere numbers of inmates forced together in intolerable living conditions would produce dire consequences in any group of human beings, let alone those being punished for crimes committed against society.
As a final note we might contemplate the fact that a substantial number of inmates confined in the maximum facility are classified by appropriate procedures, as prisoners capable of accepting responsibilities inherent in lesser securities; either medium, minimum, or work release. One can intuitively sense the frustrations and aggressions which inevitably must rise from such a fundamentally unjust administration of corrections and policies and facilities.
[Message of Governor Noel to a Joint Session of the Legislature, February, 1976].
2. Living Conditions in Medium Security
965 The Medium Security Building, housing approximately 160 prisoners in protective *965 custody status, presented conditions that, on balance, were not much better than those in Maximum. Prisoners are housed in three large dormitories and a cellblock. The building itself, dating from the depression period, is made of materials which can, with proper maintenance, be kept reasonably clean. The floors are of excellent quality, non-porous and quickdrying. Heating and ventilation present few problems; lighting was adequate. Windows were in good repair. But the walls were filthy; floors had not been swept. Due to inadequate management, the building is quickly deteriorating.
In the kitchen walls had spatterings of grease and dirt, as did the hoods over kitchen equipment. On my visit, the public health expert pointed out mouse droppings on food in open containers. As in Maximum, water outlets in the kitchen lacked vacuum devices, creating a danger that the entire potable water supply of the building could be contaminated by backed up waste-water. The good-quality tile on kitchen walls was cracked and fallen off in places from damage by carelessly-used push carts.
In the lavatories, pools of standing water gave off a stench of urine. There was mold and mildew on the showers, and the hot water pipes were exposed. The Department admitted that water from the shower leaks through the floor and into the kitchen, onto the food. On the Court's visit, many of the sinks and urinals were inoperable.
Housekeeping and maintenance had broken down in Medium in much the same way as it has in Maximum, and here the building itself cannot be blamed. Prisoners are denied requested cleaning supplies, without which it is impossible to maintain a minimum level of sanitation and cleanliness. For example, the mopheads observed by the Court on its visit were inadequate for anything more than spreading the dirt evenly across the floor. In Medium, as in Maximum, although some inmates are undoubtedly deficient in maintaining cleanliness in areas surrounding their beds which are their responsibility alone, the basic responsibility for the massive default of minimum standards of sanitation and cleanliness is the Department's.

3. Classification; Fear and Violence
Classification is essential to the operation of an orderly and safe prison. It is a prerequisite for the rational allocation of whatever program opportunities exist within the institution. It enables the institution to gauge the proper custody level of an inmate, to identify the inmate's educational, vocational, and psychological needs, and to separate non-violent inmates from the more predatory. These goals are recognized by state law, which provides that classification shall serve a rehabilitative function.[7] Classification is also indispensible for any coherent future planning.
The classification process at the ACI is currently incapable of fulfilling any of its functions, and is inadequate under any minimum standards. It has deteriorated drastically over the past few years, and for all practical purposes has effectively ceased to function at all, contrary to the requirements of state law. Inmates are provided no psychological or psychometric examinations in the classification process, except in emergency cases. No written procedures exist to structure the classification process, which has been described by the Director of Classification as "informal" and "casual". State law is flaunted by the Department's failure to separate newly sentenced inmates from other inmates for an intensive classification process.
Central to the collapse of classification is the almost total disappearance of medium security as a classification status. Nearly 100% of the capacity of the Medium Security Building has been used since at least 1973 for protective custody inmates from Maximum. As a result, there is no room in Medium for medium security prisoners, and these prisoners are therefore classified maximum and sent to the Maximum Building. The Director 966 of Classification, who *966 has held that position since 1956, has stated that if he had a medium security facility, only between 50 and 75 inmates would need maximum security, instead of the over 500 inmates now in maximum security custody. The effects of this over-classification rebound throughout the system, to the incalculable detriment of the correctional process in Rhode Island. The Director of Classification noted, for instance, that the Classification Board is hesitant to grant inmates minimum custody status because the change from maximum is so great, a hesitation which an intermediate classification to medium would erase. He found that the long wait to change classifications was a direct cause of a substantial portion of violence at the ACI, for inmates believe that the wait to get into a lower custody (i. e., minimum) is so long it is not worth their while to stay out of trouble.
The classifications process as it presently exists serves no function at all. All entering inmates are classified as maximum custody, no matter what the length of sentence or characteristic of the offender. No attempt is made to determine the proper security level of an inmate on entry, nor his education, psychological, or vocational needs. Although there is a reclassification process, it, too, is a charade: to avoid raising hopes, the Department refuses to upgrade or change a classification unless the vacancy in a building or program is open, no matter what the inmate's changed needs or condition.
Rehabilitation, a goal of the correctional process in Rhode Island,[8] is impossible under the Department's approach, which is aptly characterized as "if we don't have it, you don't want it."[9] Educational tests are administered only to those who specifically request them. No vocational tests are administered at all. The complete product of the initial classification is generally a three-sentence descriptive summary of each incoming inmate.[10] No plan is developed for each inmate.
The consequences of the failure of the classification system are manifold. First, it is literally impossible in the absence of adequate data for the Department to plan intelligently with a view to alleviating the problems that everyone recognizes as overwhelming. In early 1976, the Department concluded that the new Maximum Security Building planned ought to have a capacity for 200 high-risk inmates, a figure reached on the basis of the Director's "gut-feeling". When an architectural and planning firm conducted a closer study of the Department's needs, it was discovered on the basis of a more scientific study that the Director's gut-feeling estimate had been grossly overstated and that the needed capacity was less than half the original estimate. The Department accepted these conclusions and scaled down by one-half the capacity for maximum security inmates in its

proposed new structure, yet unaccountably has neither adopted the classification procedures used by its own planners or altered its own, useless procedures.
The rampant violence and endemic fear of violence existing at the ACI are also direct consequences of the failure of the classification system. Classification is one of the cheapest ways to achieve a measure of security in a 967 prison, enabling correctional *967 officers to be placed where they are needed most. Yet, except by the crude method of granting all protective custody requests, victims are not separated out from predators at the ACI. In Maximum, over 420 inmates of vastly different experience and predatory potential, including lifers, pre-trial detainees, and newly sentenced inmates mix freely throughout the day. Inmates from various cellblocks must travel through other cellblocks to get to the medical facility, the dining room, the visiting room, and the recreation yard. Unless the prison were to undergo a permanent lockup, this situation is inescapable, absent an uneconomic reconstruction of the building. The most serious consequence of this commingling is probably the violence and sexual attacks which occur constantly throughout Maximum, and especially in the showers, which are virtually unguardable because of the blind corners behind which they are hidden. One expert reported finding a pair of bloody underwear in one of the shower rooms during a visit to the ACI.
The Court received extensive evidence of sexual attacks, and other violent incidents. One inmate testified that, shortly after his entry into the ACI in 1973 when he was 18 years old, he was gang-raped in the shower room in Maximum. Released from prison soon thereafter, he was reincarcerated in May, 1976. Within a month, he was again viciously sexually assaulted in a shower room, this time while he was in protective custody in Medium. In December, 1976, while living in a different dormitory in Medium, he was again gang-raped. He suffered a nervous breakdown. In March, 1977, he was denied parole for the sole stated reason that he needed psychiatric counseling 0907 counseling which has never been provided him.
Contrary to what one might expect, Medium Security, housing the protective custody inmates, is little safer than Maximum. Many of the protective security inmates need protection from each other, and the Medium Security Building is therefore sealed into three compartments, each essentially a dormitory for 40 men. To keep each group of inmates from the other groups, each dormitory group must be locked in its dormitory for nearly the entire day. A review of the justifications for each inmate's protective custody showed approximately an equal number of rapists and rape victims afforded protective custody.
Of the 650 or so inmates at the ACI, 120 are currently in protective custody, and another 40 in punitive segregation. Many experts who testified at trial noted that the number of inmates in protective custody represented a percentage grossly out of proportion to any prison in America.[11] Each found this to be an indicator of the level of fear and violence pervading the ACI. Other evidence confirmed the fear and violence. A study of reported incidents of violence during 1975 and 1976 indicates approximately 155 assaults, rapes, and major fights per year; 330 other incidents of violence, and personal harm to inmates, or mutinous acts; 35 fires; and over 400 reported drug violations per year.[12] Prison officials estimate that 70-80% of inmates in Maximum are current drug users, including perhaps 40 heroin addicts. The traffic in contraband is a major cause of violence. There is no drug abuse program at the ACI.
Further review of the justifications proffered for placing individual inmates in protective custody makes it clear, as 968 common sense dictates, that the true level of violence *968 is grossly underreported. The Court received into
evidence the collected reports of violence at the ACI from the Providence Journal-Bulletin from 1975-1976, a grotesque compendium of beatings, stabbings, fire-settings, and assaults. The image conveyed, to prisoners receiving the newspapers as well as the public, is that of an institution where violence is simply unchecked. The experts, without exception, agreed. The combination of a physical structure which is rife with blind corners and hidden shower areas, and which requires each group of inmates to pass through the area of other groups during the day, and the lack of classification has created an institution where no one is safe. The Director of Classification conceded at trial that the men in Maximum are in fear of their lives from physical harm or sexual harm, and that "because of the layout of the Maximum Security . . . it's impossible or difficult to protect these men."[13]
An additional contributing factor to the ever-prevalent fear and violence at the ACI is the inadequacy of the guard complement at the ACI. Witnesses who toured the ACI never observed more than two guards in any cellblock but

the Behavioral Control Unit; a number incapable of providing a reasonable level of security to inmates. The Director of the Department confessed his virtual inability to control the inmates during any sort of disturbance in the institution short of locking them all up. Other department officials agreed, and observed further that the Department was prevented by its arrangements with the correctional officers' union from assigning qualified guards where they are most needed. Assistant Director Houle stated that he was forced, by the guards' union, against his judgment, to assign young and inexperienced officers to the most difficult posts.
In light of all the testimony, the Court finds that inmates exist in a state of constant violence and fear and that it is impossible for defendants to provide adequate protection to inmates at the ACI under the present classification system.
4. Program and Idleness in Maximum Security
The experts testifying at trial also stated, and the Court so finds, that it is impossible to maintain safety, discipline, and order unless a substantial portion of the population is constructively occupied, whether by work, education, vocational training, or recreation. Idleness in the ACI is perhaps the central fact of existence for nearly all inmates in Medium and Maximum at nearly all hours of the day.[14] It breeds boredom and a quest for excitement, and the defendants conceded that it is a major cause of the violence which has plagued the institution for years. This conclusion was reached by the 1972 Report of the Citizens Action Council to Governor Licht, and again in 1975 by the American Justice Institute. William Laurie, the Assistant Director of Corrections for Adult Services, the official with line responsibility for running the ACI, testified that the idleness among inmates has led to a loss of control by the Department. Yet he found himself incapable of remedying the situation, because both Maximum and Minimum simply have no adequate programming space. Plaintiffs' experts agree with Laurie's assessment of this problem.
Opportunities for work in Maximum are wholly inadequate by any minimum standards, a point conceded by the defendants. Although approximately 240 inmates ostensibly hold jobs, the level of idleness cannot be gauged by that statistic: as the Associate Director of Maximum Security admitted, each of these jobs could literally be completed in fifteen minutes. For example, the license plate shop is staffed to produce approximately 80,000 969 plates monthly, *969 but only 15,000 are required. It was estimated that the entire production run could be completed in two months of work a year. The effect of this situation on the work attitudes and habits of inmates can hardly be overestimated. One inmate testified that he managed to secure two jobs, which could both be completed in a total of fifteen minutes. When the authorities learned of this hoarding, they took the second job away, so that work could be more evenly spread around the population.
There are approximately 65 positions in the three state-use shops in Maximum. Eleven prisoners work at a prisoner-initiated and non-state funded motorcycle repair shop. Other prisoners have attempted to set up other shops, purchasing necessary equipment with their own funds, only to be finally refused permission after months of indecision from the Department. Another 54 inmates in Maximum have non-industry jobs 0907 lawn mowing, kitchen work, and the like. The rest of the jobs are simple cleanup, for which the cleaning materials provided prisoners are completely inadequate.
The level of idleness is exacerbated by the paucity of educational or vocational training opportunities.[15] There is only one vocational training program for the entire maximum security program, a 16-week graphic arts program with a capacity for 10 inmates and 1 or 2 auditors at any one time. Because of inadequate funding, the program often stops for a few months. Again, some inmates who have tried to teach themselves trades have been thwarted by officials denying them permission to purchase tools with their own funds.
Only four individuals spend most of their time teaching inmates at the ACI; only one of these is funded by Rhode Island. Only 29 prisoners attend the Adult Basic Educational Program in Maximum Security. Two afternoons a week no classes of any sort are conducted. The reading specialist sees only approximately 10 prisoners per week in Maximum, 6 per week in Medium. There are rarely more than 20 prisoners attending class in Maximum at any one time.

Three experts with wide experience in managing and studying prisons testified that they had never seen more than 10 prisoners in class during any of his tours, and that nothing appeared to be going on in the classes which were in session. As one expert noted, "the classrooms showed every evidence of disuse." Each testified that the quality of the instruction appeared to be extremely poor. Each testified that, in their experience, substantial numbers of prisoners will participate in institutional educational programs of good quality. As the plaintiffs note, the inadequacy of the educational programs at the ACI, and the resulting idleness and potentiality for violence, have been emphasized by every group that has studied the ACI since 1972.
The deadening effect of a nearly complete lack of constructive work, vocational, or educational opportunity is made worse by the grossly inadequate recreation facilities or programs. The indoor recreational facilities, which must house the entire recreational program for a significant part of the year, are inadequate by any standard. No indoor facilities are available during weekdays in Maximum. One of the two rooms made available after the evening meal is too small and low-ceilinged to permit basketball or jogging or any active sports. It contains a pool table, some weights, and a boxing ring. The other exercise room in Maximum is available when it is not being used as a chapel or as a theater. It is large enough to accommodate ten men playing basketball, and nothing more.
5. Program and Idleness in Medium Security
In nearly every relevant respect, the approximately 160 inmates in protective custody are subjected to a regime 970 of idleness more complete, and more devastating, than that suffered by prisoners incarcerated in *970 the
Maximum Security building. These inmates have not committed disciplinary violations, and their placement in protective custody is not intended as punishment. They literally fear for their lives, and in return for a measure of safety have been forced to bargain away a substantial part of the already meager program activity available to inmates in the general population. Worse, protective custody inmates are deprived of any semblance of personal privacy. They live in dormitories of 40 men, a practice condemned by experts for any but minimum security inmates.
There are no vocational training programs for protective custody inmates. Only the six inmates who work in the upholstery shop and the garment shop hold jobs requiring any skill or offering opportunity for constructive vocational growth. These jobs are scheduled for four hours daily, but are done in much less time. The other inmates theoretically hold maintenance jobs. It was undisputed that these "jobs" can be completed in only fifteen minutes and are rendered even more farcical by the lack of basic adequate cleaning equipment such as soap and mop.
Prisoners in different protective custody dormitories are not permitted to attend classes with each other. As a result, no prisoner may attend class for more than 4 half-days a week. In one dormitory prisoners are not permitted to attend classes at all. Other inmates, who attend classes for about 7½ hours a week, are not permitted to participate in any other program activity, including work.[16] Provision for recreation or physical exercise in Medium is wholly inadequate. There is no organized recreation program for inmates in protective custody. Nor is there any indoor exercise facility. The room designated for indoor exercise is in the basement, too low-ceilinged and small to permit basketball or any other physical activity, save pool, pingpong, and table games. There is no weight-lifting equipment. During the long winter months, or in inclement weather, prisoners are permitted to use this room for a half hour a day. The recreation program and opportunity for exercise are inadequate under any minimum standards, including the minimum standard set by the Department's own regulations.
In short, inmates in protective custody suffer almost total idleness. On my visit to the ACI during this suit, I was besieged with complaints about the absence of any constructive program by the men in one of the protective custody dormitories, who were all sitting around with nothing to do on a warm, April day. They are, quite literally, warehoused. William G. Nagel, a noted expert on corrections, present Director of the Institute of Corrections of the American Foundation, and for eleven years the deputy superintendent of the New Jersey Correctional Institution at Bordentown, testified that the idleness suffered by protective custody inmates was different not only

in degree, but in kind from that normally entailed by incarceration in America.[17] He found it more complete than he had ever observed in an American prison. He pointed also to the total lack of privacy for inmates in protective custody, their total lack of protection from the other thirty-odd men in each dormitory, the high level of fear at night, and the incessant noise. His expert opinion, joined by other witnesses and uncontradicted, was that the debilitating conditions are so extreme that inmates in protective custody deteriorate while so incarcerated. "I don't know what is more punishing than letting a person rot," he concluded. The Court credits this testimony.
6. Pre-trial Detainees
971 In recent months, the number of pre-trial detainees has varied from between 120 to *971 175. Because the awaiting trial (AT) cellblock in Maximum can house only 99 inmates, there are nearly always awaiting trial inmates housed in protective custody, the Behavioral Control Unit (B.C.U.), the hospital area, and the main cellblocks in Maximum.
Even for those pre-trial inmates housed in AT, there is constant daily contact with sentenced inmates. They must pass through the South State cellblock to eat, to go outdoors, to the commissary, to the medical facility, or to meet visitors, for example. They have no separate recreation facilities, nor separate shower facilities. Shower facilities used by AT inmates are freely used by inmates from all sections of Maximum during the day, and they are not visible to a person standing anywhere but directly in front of the showers. There were no guards positioned near the showers used by awaiting trial inmates during any of the numerous visits of witnesses at trial.
This intermingling of the awaiting trial inmates with the general population has been described by the Associate Director of Maximum Security as a major security problem. He noted that the pre-trial detainees suffer most of the violence, and that they are "often the victims of homosexual acts from the state population, theft, you know."
Because pre-trial detainees are not classified in any way, no attempt is made to determine which detainees need maximum security confinement or whose presence would be adequately guaranteed for trial by incarceration in Medium or Minimum custody. Nor are any pre-trial inmates screened for mental health problems or program needs. Indeed, they are forbidden from participating in any of the educational, vocational, or work opportunities that do exist. They can earn no money, and are not permitted to occupy themselves with constructive activity.
In short, pre-trial inmates are exposed to conditions worse than those suffered by sentenced inmates in either Maximum or Medium. Nor can the state plead that this intermingling is caused by any sort of emergency conditions. Over the past five years, the situation has been repeatedly called to the attention of the officials responsible. See American Justice Report to Governor Noel (1975); Report of the Committee to Investigate the Uprising at the Maximum Security Facility of the Adult Correctional Institution on April 2, 1973 (1973); Report of the Citizens Action Council on the Adult Correctional Institution to Frank Licht, Governor of the State of Rhode Island (1972).
The conclusion is inescapable that pre-trial inmates are not provided minimally adequate protection against assault, that they are exposed to punishment even worse than that endured by other inmates, and that they are incarcerated under conditions far harsher than anything necessary to guarantee their presence at trial. So long as pretrial inmates are housed in Maximum Security, these conditions cannot be significantly improved.
7. Drug Abuse and Treatment
The extensive availability and use of drugs inside the ACI is a substantial cause of violence between inmates, and defeats the Department's efforts at securing an orderly institution. Rehabilitation in an environment where 70% or more of the inmates are abusing drugs, as at the ACI, is obviously impossible. The ACI's facilities and program for diagnosing and treating drug addiction are wholly inadequate. The deliberate indifference displayed by the defendants to the serious medical needs of drug dependent inmates leads to unnecessary and inevitable suffering.

Dr. Anthony Raynes, a psychiatrist with extensive expertise in the field of drug addiction treatment and diagnosis in correctional settings, who has previously consulted for the ACI, noted that the records maintained by the Department in connection with drug abuse diagnosis and treatment were completely inadequate in terms of history taking, notation of physical symptoms associated with drug abuse, treatment provided, and follow-up. 972 Screening procedures were seriously deficient. No *972 in-house drug tests were available, and the time required for tests performed on incoming inmates to be returned from Boston laboratories substantially reduces the value of those tests. As a result, many prisoners are misdiagnosed and physical and mental deterioration associated with certain forms of drug abuse continue unabated and even unnoted.
Because its record-taking is so inadequate, the Department is unable to ascertain the extent of drug usage at the ACI. A study performed for the Department in 1975 found that between 15 and 40 inmates at the ACI maintain themselves on heroin inside the institution; another 70-80% of the population abuses drugs at any given time. Dr. Donahue, the chief physician at the ACI, estimates that perhaps 50-70% of inmates resident at the ACI are drugdependent. He believes that the same proportion of inmates enter the ACI as drug-dependent.[18] The Court received the appalling testimony, uncontradicted by anyone, that much of the drug traffic originates with the guards. The ACI also has a significant number of inmates using a number of drugs (poly-drug users) at any given time, although the Department has no reliable figures on the extent and combinations of drugs, and alcohol, used. Of course, it is impossible to design treatment resources without these statistics, even if inmates were properly screened and diagnosed, which they are not.
The medical staff has no formal protocols for the withdrawal or treatment of heroin, barbiturate, or poly-drug users, nor even commonly understood unwritten policies. Dr. Donahue informed Dr. Raynes that he believes in waiting for symptoms, and then treating symptoms (often with tranquilizers and emetics), a method of treatment which Dr. Raynes likened to treating a patient with leeches. In Dr. Raynes' expert opinion, which is unrebutted, Dr. Donahue is either unable or unwilling to follow current medical practice regarding chronic or acute reactions to drugs. Detoxification is unavailable either for heroin addicts or for inmates who had recently been maintained on methadone. Addicts are provided no drug counselling,[19] nor are inmates already admitted to the ACI screened to detect continuing drug usage with a view to effective treatment. On the basis of his conversations with medical personnel at the ACI, Dr. Raynes was able to state with assurance that it is impossible to provide adequate medical treatment for drug users in the ACI with current personnel, attitudes, and knowledge.[20]
The failure properly to identify or treat drug users in the ACI has a devastating impact on the entire inmate population. Of most obvious importance, much of the violence rampant at the ACI is related to the drug traffic which occurs within the walls of the institution. There is increased risk of suicide gestures, and increased pain and suffering on the part of inmates addicted while ostensibly under the secure custody and control of the state. [21] And because drug addiction acts like an infectious disease, with one addict commonly "infecting" a number 973 of other unaddicted persons each year, there is a real risk that non-addicted *973 inmates will become addicted while incarcerated. Finally, a matter which may be of little constitutional significance but of great consequence to the citizens of Rhode Island, this pattern of failure leads inexorably to the release of seriously addicted inmates who will maintain their habits by renewed criminal activity.
8. Medical Care
The Court received extensive testimony regarding the delivery of medical services to inmates at the ACI. Here again, a series of reports commissioned by the Department over the past four years describes, highlights, and reiterates the life-threatening deficiencies which have plagued the medical services staff in the past. It appears that some effort is finally being made to take steps to improve care which as recently as 1976 was described as "fragmented" and "episodic" and "minimal." However, the unrebutted, credible testimony of plaintiffs' two experts in the delivery of medical services in a correctional setting leads inexorably to the conclusion that the system of medical care delivery at the ACI is inadequate by any accepted standard to meet the inmates' routine and emergency health care needs.[22] In light of the fact that the Department has been aware of this dangerous situation since 1973, the Court finds that the defendants have consciously disregarded a grave and substantial

risk to the health and well-being of the inmates entrusted to their care, in the form of the needless occurrence, prolongation, or exacerbation of serious injury, illness, or suffering.
It is true, as the defendants assert, that there has not been in recent years a serious outbreak of infectious disease, nor have the plaintiffs attempted to prove specific instances where the illness or injury of a particular inmate was exacerbated by the deliberate indifference of staff members. Neither of these facts is determinative. Given the dangerously low standard of medical care that prevails at the ACI, the Court would be remiss in its duty were it to wait until an inmate bleeds to death, or suffers a heart attack which defendants are unequipped to diagnose or treat in an emergency, before it acts. Inmates are wholly dependent on the medical services staff for their medical needs. Unlike the general population, they cannot self-treat even the most minor ailments, nor do they have the privilege of making their own choice of physicians. The Department of Corrections is fortunate that the ACI, situated adjacent to the state medical center, can use that facility with a fair degree of ease in certain situations. But the frightening fact remains, that the ACI medical care system is simply unable to provide satisfactory emergency service or satisfactory routine care for the inmates. Indeed, Dr. Lambert King, the Director of the prison hospital at the Cook County Correctional Center in Chicago and a physician of extensive experience in managing a medical service in a correctional setting, testified that the medical services provided at the ACI were inferior to any correctional medical services he had ever inspected. Without going into extensive detail, the following deficiencies display the extent of the problem.[23]
The infirmary has no capability of performing elementary blood or urine tests, which are crucial for quickly diagnosing commonly encountered medical problems among inmates for which prompt diagnosis is essential. The infirmary has no centrifuge, and blood counts cannot be performed. The Department was advised as early as 1973 that such tests were the first priority in an upgraded system. There is no electrocardiogram at the ACI, and 974 as a result medical staff cannot make an adequate *974 emergency diagnosis of an inmate having chest pains. The infirmary is not equipped to take specimens from wound infections for culture or sensitivity tests, nor is there any means of performing tests for gonorrhea. As an inevitable result of these deficiencies in laboratory testing capability, inmate medical problems are likely to go undiagnosed, and the efficacy of any treatment administered cannot be competently evaluated.
The institution is missing certain essential emergency equipment such as a defibrilator for the treatment of coronary problems and suction equipment for the removal of secretions from a windpipe to aid a choking patient.
The size of the medical staff is inadequate by the Department's own admission. The Department has one full-time doctor, who in practice works fifteen hours a week but is paid for forty hours' work. At present, he has stopped work completely, apparently due to a disagreement with the Department. Two part-time physicians work approximately 24 hours a week. The medical staff is expected to provide physical examinations (these have recently been made more thorough) to all incoming inmates. They are also responsible for the other medical needs of 650 inmates who, because of the excessive violence at the institutions, require a good deal of patching up. Necessarily, much of the burden of treatment falls on the nursing staff, an expedient that is medically unobjectionable provided there is adequate supervision. In practice, however, necessary training and guidance for the nursing staff is almost totally lacking, a situation which constitutes reckless disregard for, and deliberate indifference to, the medical needs of inmates.
For example, medications which outside the institution routinely require a physician's prescription are generally dispensed at the ACI by nurses, based on their own interpretations of patient needs and without physicians' orders. Physicians are not consulted or informed before potentially harmful medications, including tranquilizers and antibiotics, are administered. These practices violate the standards for institutional health care delivery of the American Public Health Association, and the unrebutted testimony of Dr. King was that they are likely to result in serious injury to inmate patients. In addition, nurses, on their own, without physician approval and without guidance by written instructions or policy, sometimes decide that some patients' complaints are imaginary and treat them with placebos.
Although the nursing staff are the only medical personnel available outside of normal working hours, they are not provided with guidance for use in commonly occurring emergencies. They are not trained in cardio-pulmonary resuscitation for supporting respiration or circulation in cases of cardiac or respiratory arrest. There are no

protocols or in-service training programs concerning the emergency treatment of inmates with seizures, drug overdoses, or exposure to teargas or other chemical control agents. Although nurses are authorized to use sodium luminol in the emergency treatment of epileptic seizures, they are provided no guidance in the use of this medication, notwithstanding the risk that its use with other-than-epileptic patients carries a serious risk of death. Dr. Donahue's opinion that training for sodium luminol and other treatments mentioned above is unnecessary was contradicted by the more credible testimony of Dr. King, holding that the lack of such guidance fell far below acceptable medical practice. Dr. Donahue does not even know the types of gas available at the ACI, such as mace, and, of course, he has not planned in any way for treatment of its side-effects. Although he has instructed the nursing staff to call him if they have a problem while he is not at the ACI, on numerous occasions attempts to reach him have been unsuccessful.
No written agreement exists between the Department and a mobile rescue unit, and there is a continuing substantial risk that delay resulting from difficulty in arranging transportation could, in cases such as heroin 975 overdoses, cause the death of an inmate. *975 Even more shocking, there is no disaster plan prepared by the physician in charge of medical services at the ACI, although this is a commonly accepted practice in correctional institutions.[24]
The ACI employs no pharmacist and maintains no formulary, violations of minimum standards that render impossible the compilation of meaningful data on medication usage at the ACI and increase the difficulty of controlling diversion of medication for improper use.
The infirmary is similarly deficient in coping with inmates suspected of having infectious diseases, such as hepatitis or tuberculosis, and a substantial risk exists that an outbreak may occur. No written procedures exist for staff guidance. No provision is made to administer gamma globulin to inmates who may have been exposed to hepatitis, a failure which the Court is advised is unacceptable medical practice. Rooms set aside for infectious patients are wholly inadequate to contain disease: they have neither doors, nor separate ventilation systems, nor separate toilet facilities, and infectious patients must walk through the general infirmary area. In one case, medical staff were not even advised by the physician that an inmate placed in the "isolation" area was suspected of having hepatitis. All of these deficiencies in staff, equipment and procedures are exacerbated by the lack of organization that characterizes the medical services system as a whole, a failing which in addition renders less effective any strong points that the system might have. Under the present chaotic regime, staff performance is not evaluated, written guidelines as to how the service will operate are non-existent, and there are no written plans or instructions available on how to use the outside medical facilities upon which the ACI is heavily dependent. Indeed, there is not even a check made as to whether staff licenses are current. All of this, of course, results in inappropriate and haphazard treatment, as plaintiffs' expert testified, and great risk of prolonged or exacerbated illness or injury.
The lack of system is perhaps best illustrated by the near total lack of available statistical information. When the trial of this case started last April, there were no statistics available about any aspect of health care at the ACI, not even such basic information as the type or quantity of medication prescribed for common health problems or the number of inmates with diabetes, asthma, or tuberculosis.
While the Court received testimony in late May that this situation had been partially remedied, and that the new Medical Services Coordinator, John Fournier, has recently begun devising forms and keeping statistics, the Court has no indication of the extent or adequacy of these improvements from any qualified witness. Instead, the unrebutted testimony showed that the cumulative effects of the deficiencies noted in the medical care system lead directly to increased morbidity and to the prolongation of disease, and result in a clear and everypresent danger that emergency situations will not be treated properly. It was Dr. King's opinion that the medical services system, as it was set up at the time he testified, may result in unnecessary death, and met no minimum standards for delivery of health care in a correctional setting.
Based on the undisputed testimony of a number of well-qualified witnesses, the Court also concludes that psychiatric and psychological evaluations and treatment are inadequate to meet the needs of the inmate population. Dr. Carl Clements, a psychologist who consulted for Judge Johnson in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala. 1976), reviewed a number of records and testified about one he believed was typical. An inmate

who had suffered a nervous breakdown after eight months in the ACI was denied parole on March 30, 1977 for the stated reason that he "had serious problems with drugs, behavior in the community, and mental instability. 976 . . . You need psychiatric *976 counselling." This callous comment is particularly shocking in light of the fact (which can hardly have escaped the Board of Parole) that the ACI employed no clinical psychiatrist or psychologist, and had no arrangements to provide such treatment to any inmates. Other experts noticed a number of inmates acting out, as did the Court on its visit. Dr. Clements found the mental health facilities inadequate according to standards promulgated by the Federal Bureau of Prisons and the American Correctional Association. Although the Court received testimony that a psychiatrist would finally be employed in the near future, a memorandum issued by the Coordinator of Counseling Services casts serious doubt on whether that individual, if indeed he is every hired, will engage in treatment. Written recommendations for parole hearings and intake evaluations are set out as the top priorities.
The Court is not unaware that, as litigation commenced, some improvements in medical care were begun. Intake physical examinations are now more thorough, for example, and, as indicated, an attempt to keep statistics is now being made. These efforts are commendable, and the Court applauds them, but they are simply insufficient to cause the Court to alter its firm conviction that, on the record before it, the level of medical services provided at the ACI falls below any minimum standards and creates an unacceptable risk of needless suffering and disaster. There will be time enough to alter this assessment if, as everyone hopes, conditions take a significant turn for the better.
9. The Cumulative Impact of Conditions at the ACI
The comprehensive pattern of neglect in every area, and overcrowding, has a cumulative psychological impact on the inmates confined at the ACI.
Neither Maximum nor Medium presents the massive overcrowding of inmates which has been documented in other cases.[25] Inmates are provided with the generally accepted minimum of 60 square feet of cell space, or 75 square feet of dormitory living space, per inmate. However, the ACI suffers from overcrowding of a different sort, for it is incapable of meeting the classification, protection, program, or fire safety needs of the population.
Even if prisoners were classified properly, there is insufficient space to keep various groups apart, a necessity for the protection of inmates from violence. Associate Director Brule noted that his inability to shift inmates to empty cells within buildings, and between buildings, has made it increasingly difficult to control inmate disputes. Protective custody inmates in Maximum are forced to do without exercise or visits for a period of two weeks or more and may be placed in the hospital area in close proximity to inmates with serious infectious diseases. As previously noted, lack of any space for medium security inmates has led to gross over-classification of most inmates, resulting in increased levels of fear and violence and foreclosing any opportunity for enhancement or even maintenance of constructive attitudes.
The defendants conceded that lack of programming space was a serious problem, and have emphasized in each of their new plans greatly increased programming space. Recreational space, as well as space for educational and vocational programs, is at present wholly inadequate, and contributes substantially to the nearly total lack of program activity for inmates in Maximum and Medium, where the situation is even worse.
Finally, pressure on inmate capacity currently requires inmates to be housed in upper tiers with only a single means of egress, a situation which violates all accepted fire safety requirements and can only be described as a tragedy waiting to happen.
Even if there were additional programming space at the ACI, which there is not, an attempt to provide adequate 977 education, vocational, and work experiences for those willing to take advantage of them would be *977 doomed
to failure. The institution is presently unfit for human habitation. Inmates are subjected to constant fear and violence. They become withdrawn and anxious, and increasingly incapable of any healthy social interaction. In these circumstances, rehabilitation is impossible. Subjected to near-total idleness in unsanitary living conditions, it is in fact nearly impossible for an inmate to conserve and maintain whatever constructive attitudes and life skills he may have had on entry. Dehabilitation, the mental and physical deterioration of inmates, rather than

rehabilitation, is inevitable. The Court finds, on the basis of undisputed and credible testimony, that deterioration is presently taking place.
The Court received extensive testimony on the physical capabilities of the present structures, including detailed analysis from the architect and planner retained by the Department. It was conceded at trial by the defendants, and the Court finds, that the Maximum Security Building has outlived its usefulness. It is incapable of being safely used for any group of inmates requiring security control, or indeed even for more than 300 minimum security inmates who work all day in outside-the-prison programs. The Maximum Building is incapable of any use for any number of inmates without jeopardizing their physical health and safety without massive reconstruction, which it is agreed by all is financially unfeasible. The Department's own architect gave his opinion that Maximum is useful only as a warehouse, which, indeed, it has become.
10. The Defendants' Response
The defendants' response to this bleak picture was a mixture of concessions, promises, and half-hearted objections.[26] For example, they pointed to the number of inmates holding jobs, but did not dispute that no job takes more than fifteen minutes to complete. They demonstrated that classification counsellors are available to inmates from Monday through Friday, but admitted that maximum is the only real classification for more than 5/6 of the inmates confined to the ACI. Prisoners were blamed for the housekeeping deficiencies, and it was stressed that inmate porters (cleaners) were paid two dollars a day nonetheless; yet the state conceded that the simple motivation of withholding wages for work not completed had never been considered. Beyond this, defendants' response to plaintiffs' overwhelming evidence of neglect was limited to renewed promises of reforms, which would arguably have occurred in any case when Maximum is replaced by a new building, as defendants concede it must be.
Defendants' response raised serious doubts in the Court's mind as to their capacity to undertake the Herculean task of rebuilding the Rhode Island prison system. Plaintiffs' extensive testimony on this subject did nothing to dispel these doubts. On the contrary, the experts were unanimously agreed, and the Court finds, that there is a complete absence of effective leadership or management capability on the part of the responsible officials. The problems catalogued herein are not new; they have been highlighted by a succession of advisory commissions and paid consultants, engaged by the Governor or the Department to untangle the reasons for the collapse of an effective, orderly, humanly habitable prison in Rhode Island.[27] The findings of each of these studies admitted into evidence, have been reconfirmed and underscored by the evidence presented at trial.
The present Director of the Department of Corrections has been in office for more than a year. During that time, no vocational programs have been instituted, nor are any realistically planned. Although the massive drug problem at the ACI has been exhaustively documented and analyzed for years, no drug program yet exists, and the planned facility is designed only for inmates nearing the completion of their sentences; it was designed on the 978 basis of physical space available, rather than need. No changes in classification have been instituted, *978 or proposed. No indoor recreation facilities in Medium have been proposed. No proposals have been made to remedy the lack of effective maintenance or housekeeping. The Director has testified that he wants to close down Maximum by mid-1979, to use Medium exclusively for pre-trial detainees, and to place the remaining population in other buildings. He cites recent reports that he has commissioned showing that it would be excessively costly to bring the present Maximum Building up to what he himself termed "minimum standards of living".[28] Thus, it is argued, the Court should stay its hand, and let the Department work out its own plan.
As a factual matter, the Court cannot accept the Department's sanguine prognosis for the future of the ACI under its present management. If conditions at the ACI were less barbaric, if this Court were writing on a clean slate, it might be otherwise. But the record in this case is replete with plans that have never materialized. The Department's current plan for the future of the ACI, as it emerges from the evidence presented to the Court, differs totally from the plan in effect just one month before trial. It is vague and hastily drawn[29] and is more accurately described as a compendium of hopes and wishes than as a realistic guide to future conduct. While some of defendants proposals undoubtedly have merit, the plan as a whole provides no reason to depart from the conclusion reached by plaintiffs' experts that the present management of the ACI is basically incapable of

creating a safe, orderly, and hygienic prison to accomplish the state's twin goals of custody and, where possible, rehabilitation.
II

1.

Federal courts are properly reluctant to interfere with the operation of state prison systems. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). This restraint is derived in part from jurisdictional statutes which authorize intervention only on the basis of federal constitutional violations, and in part from notions of comity and due regard for the states' sovereignty over their own internal affairs. In addition, as the Supreme Court has advised and as this Court is deeply aware,

[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.

Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (footnote omitted). Nevertheless, "there is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); Pell v. Procunier, supra; Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1971); Martinez Rodriquez v. Jiminez, 409 F.Supp. 582 (D.P.R.1976), stay denied 537 F.2d 1 (1st Cir. 1976). Prisoners retain all those rights enjoyed by free citizens except those necessarily lost as an incident of confinement. Pell v. Procunier, 417 U.S. at 822, 94 S.Ct. 2800; Pugh v. Locke, 406 F.Supp. 318, 328 (M.D.Ala.1976).

979

*979 When a prison regulation or practice offends a fundamental constitutional guarantee, federal

courts will discharge their duty to protect constitutional rights.

Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. at 1807.

Officials who engage in massive, systemic deprivations of prisoners' constitutional rights are entitled to, and can expect, no deference from the federal courts, for the constitution reserves no power to the state to violate constitutional rights of any citizens. Newman v. Alabama, 349 F.Supp. 278 (M.D.Ala.1972), aff'd in part 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974); Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977); Pugh v. Locke, supra. Nor can lack of funds, or invocations of the virtues of the legislative process, excuse constitutional violations or judicial default. To the contrary, the constitutional prohibition against cruel and unusual punishment, like other provisions of the Bill of Rights, was designed expressly to protect the weak and powerless from the passions, or the reckless neglect, of the majority and its leaders.

On the factual record adduced in these cases, the Court has a clear duty to require the defendants to remedy the constitutional violations which plague the Adult Correctional Institutions in Rhode Island. The necessity and continuing responsibility for state officials to exercise broad discretion in maintaining order and security cannot justify judicial abdication from the enforcement of basic constitutional rights of inmates to a reasonably safe and sanitary environment, and to be free from conditions which inexorably cause their physical and mental deterioration. This case is not an exercise in making prison life more pleasant for prisoners, nor is the ACI about to be transformed into a Holiday Inn. The conditions under which inmates in Rhode Island exist shocked the Court, and the Court is convinced that they would shock the conscience of any reasonable citizen who had a firsthand opportunity to view them. The defendant state officials, to their credit, made absolutely no attempt to justify these conditions by reference to any penological goals. It would have been impossible had they tried. Conditions at the ACI are inconsistent "[with] the evolving standards of decency that mark the progress of a maturing society". Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). In effect, each prisoner

sentenced to a prison term in Rhode Island, or sent to the ACI awaiting trial, is sentenced to a regime in which he will be forced to live in a state of constant fear of violence, in imminent danger to his bodily integrity and physical and psychological well-being, and without opportunity to seek a more promising future.
2.
The evidence is overwhelming that the totality of conditions of confinement in Maximum and Medium do not provide the "tolerable living environment", Rhem v. Malcolm, 371 F.Supp. 594, 627 (S.D.N.Y.), aff'd 507 F.2d 333 (2d Cir. 1974), that the Eighth and Fourteenth Amendments require for state prison inmates. Compare Williams v. Edwards, 547 F.2d 1206, 1211 (5th Cir. 1974); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971); Mitchell v. Untreiner, 421 F.Supp. 886, 896 (N.D.Fla.1976); Pugh v. Locke, 406 F.Supp. at 329; Hamilton v. Schiro, 338 F.Supp. 1016, 1019 (E.D. La.1970). The lack of sanitation, lighting, heating, and ventilation, and the noise, idleness, fear and violence, and the absence or inadequacy of programs of classification, education, physical exercise, vocational training or other constructive activity create a total environment where debilitation is inevitable, and which is unfit for human habitation and shocking to the conscience of a reasonably civilized 980 person.[30]Pugh v. *980 Locke, 406 F.Supp. at 329; Holt v. Sarver, 309 F.Supp. 362, 372-73 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1972). See Trop v. Dulles, 356 U.S. at 100-101, 78 S.Ct. 590. See also Williams v. Edwards, 547 F.2d at 1214 (lack of sanitation); Miller v. Carson, 401 F.Supp. 835, 900 (M.D.Fla.1975) (exercise); Battle v. Anderson, 374 F.Supp. 402, 424 (E.D.Okl.1974) (same); Rhem v. Malcolm, 371 F.Supp. 594, 626-27 (S.D.N.Y.), aff'd 507 F.2d 333 (2d Cir. 1974) (same); Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972) (heat); Hamilton v. Landrieu, 351 F.Supp. 549, 554-55 (E.D.La.1972) (ventilation, light); Pugh v. Locke, 406 F.Supp. at 330 (lack of constructive programs). These conditions of confinement serve no legitimate correctional purpose, Pell v. Procunier, 417 U.S. at 822-23, 94 S.Ct. 2800; see O'Brien v. Moriarty, 489 F.2d 941 at 944, and are so far beyond the pale of civilized standards that they would be unjustified even if they did serve some such purpose, see id.
3.
It is likewise clear from the facts adduced at trial that defendants, by failing to provide reasonably adequate protection for the inmates, have knowingly and recklessly permitted a reign of terror to develop and exist at the ACI. Inmates are forced to live in constant fear of violence and sexual assault. Although defendants are not insurers of inmate safety, the layout and present staffing patterns at the ACI, and the opportunities produced by enforced idleness, create a situation where control is non-existent. The Eighth Amendment forbids the continued existence of such conditions. Little v. Walker, 552 F.2d 193 (7th Cir. 1977); Finney v. Arkansas Board of Corrections, 505 F.2d 194 at 201; Gates v. Collier, 501 F.2d 1291, 1308-09 (5th Cir. 1974); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971); Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973); Martinez Rodriguez v. Jiminez, 409 F.Supp. 582, 594 (D.P. R.1976).
4.
The record in this case is replete with evidence that prison officials have never given meaningful content to the policy of the Rhode Island legislature that "efforts to rehabilitate and restore criminal offenders as law-abiding and productive members of society are essential to the reduction of crime," R.I.G.L. § 42-56-1 (Supp. 1976), nor obeyed the statutory directive "to furnish the means as shall be best designed to effect such rehabilitation," R.I.G.L. § 42-56-19 (Supp.1976); see also R.I.G.L. § 42-56-29 (Supp.1976). Defendants' unwillingness or inability to obey the clear commands of the above-cited Rhode Island statutes is actionable as a matter of state law, cf. State v. Brant, 99 R.I. 583, 209 A.2d 455 (1965), and is remediable in this Court by way of pendent jurisdiction. Taylor v. Sterret, 499 F.2d 367, 368 (5th Cir. 1974), cert. denied 420 U.S. 983, 95 S.Ct. 1414, 43 L.Ed.2d 665 (1974). Compare Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir. 1977).[31]
981 *981 Viewed as part of the dehabilitating conditions that prevail in Maximum and Medium, the near-total absence of meaningful rehabilitative programs or recreational activity constitutes a failure on defendants' part of

constitutional dimension. Pugh v. Locke, 406 F.Supp. at 330; Holt v. Sarver, 309 F.Supp. at 379.[32] The testimony established overwhelmingly, and without contradiction, that the idleness suffered by inmates at the ACI was excessive, engendering fear and violence and causing psychological deterioration. Experts of broad experience found it worse than any they had ever encountered, and believed it to be a major, and inevitable, cause of the violence and consequent fear and terror which pervades the ACI. If the fear and terror rise to constitutional dimension, then the condition which makes them inevitable is necessarily constitutionally intolerable. Compare Newman v. Alabama, 503 F.2d 1320, 1331.
5.
The system of classification currently in effect at the ACI fails to satisfy the requirement of R.I.G.L. § 42-56-29 (Supp.1976), which provide that each inmate:
be studied and evaluated to determine whether such person shall be a maximum, medium or minimum security risk and to develop a program of rehabilitation, education and medical and other care as shall be deemed necessary and appropriate to prepare such person to become a useful member of society. During such period medical, psychometric and psychological examination shall be made of such person and the results thereof, together with the nature of the offense for which such person has been committed, the previous criminal history, if any, the recommendations of the department of the attorney general and of the sentencing court and the social history of such person shall be studied and evaluated in determining the degree of custodial care of such person, the rehabilitation program for such person, such medical or other care as may be necessary and such spiritual and religious guidance as shall be indicated by the preference of such person.
982 *982 This statute, supplemented by the classification rules now in force by decree of this Court, see Morris v. Travisono, 310 F.Supp. 857, 865-871 (D.R.I.1970), and read together with R.I.G.L. §§ 42-56-1 and 42-56-19 (Supp.1976), create enforcible minimum standards for the classification process: defendants' undisputed, unexplained and unwarranted evisceration of these standards, to the point where they have become a sham and a mockery, is a violation of state law.[33]See State v. Brant, 99 R.I. at 586-87, 209 A.2d 455 (semble).
6.
As the factual findings recited earlier in this opinion indicate, the lawlessness that prevails at the ACI has led to an incredibly high proportion of inmates being held in protective custody, many of them at their own request. For these inmates, the price of security is high.[34] The totality of conditions in Medium, where most of these men are housed, constitute cruel and unusual punishment, the filth, noise, and idleness of life in Medium shock the conscience. In addition, defendants have seen fit to impose additional penalties upon protective custody inmates in the form of severely restricted access to the few available rehabilitative programs, more limited opportunities to exercise, and a reduced number of visits from the outside world. These restrictions are not imposed upon general population, and defendants have not come forward with any reasons for their imposition.
It is true that the mere fact that conditions in protective custody are more disagreeable than those generally prevalent at the ACI would not of itself raise constitutional problems, cf. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (inter-prison transfers). Nevertheless, where the State has itself created the conditions that necessitate the widespread use of protective custody, where the totality of conditions of protective custody violate the Eighth Amendment, and where the restrictions complained of amount to additional punishment for which no penological explanation is offered, the additional restrictions are offensive to due process and equal protection and must be enjoined. See Nadeau v. Helgemoe, 423 F.Supp. 1250, 1260-1274 (D.N.H.1976). See generally Comment, 12 Harv.Civ.Rts.-Civ.Lib.L.Rev. 367, 393-404 (1977).

7.
It is truly shocking that convicted felons are routinely warehoused for years in the less than human atmosphere of the ACI. But it is absolutely intolerable that the same treatment is accorded to pre-trial detainees, who have not yet been found guilty of the offense with which they are charged and yet are kept for months in Maximum in the midst of convicted inmates and denied even the meager access to constructive programs that the latter enjoy. It is now settled that pre-trial detainees may be subjected only to those restraints necessary to insure their presence at trial. Detainees of the Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975); 983 Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971); Inmates of Suffolk County Jail *983 v. Eisenstadt, 360 F.Supp. 676, 685-86 (D.Mass.1973), order aff'd, 494 F.2d 1196 (1st Cir. 1974); Smith v. Sampson, 349 F.Supp. 268, 271 (D.N.H.1972); Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale L.J. 941, 950 (1970).
Defendants do not seriously dispute that the current practice of commingling pre-trial detainees and convicted offenders in the conditions that now obtain in Maximum is constitutionally unacceptable. They argue that plans are afoot to move pre-trial detainees to a separate facility, presumably one that meets constitutional standards, and that they should be given time to implement these plans. This argument might have some force if the practice of housing pre-trial detainees were a temporary measure of recent origin. But this is not the case. Defendants have been keeping pretrial detainees in Maximum for years, despite repeated warnings that the practice is dangerous and unacceptable. See American Justice Institute Report (1975); Report of the Committee to Investigate the Uprising at the Maximum Security Facility of the Adult Correctional Institutions on April 2, 1973 (1973); Report of the Citizens Action Council (1972). In the face of this long-standing practice, the Court cannot accept promises of improved conduct on the part of defendants in the future. They have simply lost their credibility on this point.
8.
The grossly inadequate system of medical care, including psychiatric care, afforded inmates is part of the intolerable totality of conditions at the ACI which, as the Court has found, violates inmates' Eighth and Fourteenth Amendment rights. Compare Holt v. Sarver, 309 F.Supp. 362, 380 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1971), on remand Holt v. Hutto, 363 F.Supp. 194 (1973); Hamilton v. Schiro, 338 F.Supp. 1016 (E.D.La.1970). Together with the other unsanitary and dangerous conditions already detailed, the system of medical care services constitutes a significant part of an environment which is unfit for human habitation, an environment where inmates actually deteriorate, physically and mentally, while they are in custody.[35]
Alternatively, and as an additional ground of decision, plaintiffs urge the Court to find that the health care delivery system at the ACI, in its own right and without regard to the totality of conditions, is so inadequate as to violate the Eighth and Fourteenth Amendments to the Constitution.
There is impressive unanimity of judicial opinion as to when inadequate medical care to prisoners reaches the level of a constitutional violation. Inadvertent or negligent errors in diagnosis or treatment are not enough to establish a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 105-106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970); Newman v. Alabama, 503 F.2d 1320, 1330 n. 14 (5th Cir. 1974), cert. denied 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1974); Todaro v. Ward, 431 F.Supp. 1129, 1132 (S.D.N.Y. 1977). An individual seeking relief must prove "deliberate indifference to a prisoner's serious illness or injury," Estelle v. Gamble, 429 U.S. at 105, 97 S.Ct. at 291. In the case of a class 984 action challenging the entire system of medical care delivery, "deliberate indifference" can be shown either *984 by a series of incidents closely related in time or by evidence that "the medical facilities [are] so wholly inadequate for the prison population's needs that suffering would be inevitable." Bishop v. Stoneman, 508 F.2d 1224, 1226 (2d Cir. 1974); Todaro v. Ward, 431 F.Supp. at 1133. Plaintiffs' proof was directed at satisfying this second test, which amounts to a recklessness standard, and requires a showing of conscious disregard by the

defendants of a substantial risk that serious injury or illness would be engendered or prolonged by the inadequacies of the medical system.
The Court holds that plaintiffs have proved their case in this regard. While the delivery of medical services is not inadequate in a number of respects, and appears to be somewhat better than that found in the most egregious reported case, Newman v. Alabama, 349 F.Supp. 278 (M.D. Ala.1972), aff'd 503 F.2d 1320, cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1974), the compendium of serious health-and life-threatening deficiencies established by clear and convincing and unrebutted testimony reveals far more than isolated instances of neglect. Instead, the record supports a finding that the present inadequate state of medical service delivery is, as a system, the product of callous indifference. Each of the deficiencies noted here has been brought to the Department's attention at least three times since 1973, and nearly every one remains unremedied today. The inadequacies established at trial involve not hyper-technical, esoteric advances of modern medicine, but the basic, life-preserving tests, procedures, and control mechanisms that constitute a minimally acceptable medical services system. In June of 1976, the Department was informed that no expansion of the present, and limited, medical services system should take place "until a basic reliable medical program is established." See Della Penn, Study of and Recommendations for Health Services, Rhode Island Department of Corrections (1976), pl. ex. 21, at 4, 20-23. Each of the major problems chronicled here has been found by other courts to be of constitutional magnitude. See Newman v. Alabama, 503 F.2d at 1330-1331, and cases collected there. This Court holds that medical services system at the ACI, by reason of the deficiencies set forth in this opinion, violates plaintiffs' Eighth and Fourteenth Amendment rights. Newman v. Alabama, supra; Todaro v. Ward, supra; see also Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) (psychiatric care required by Eighth and Fourteenth Amendments).
III
The Court must now face the difficult task of fashioning a remedy in this case. To begin at the area of broadest agreement, the record here overwhelmingly supports, and no one seriously disputes, the conclusion that the present Maximum facility is irremediably obnoxious to constitutional standards and that it must be closed, and it is so ordered in conformance with the timetable in the Order to be issued in these cases. But this is not simply a case where, if a new jail is built, all will be well. As other courts have recognized in identical situations, a new prison operated like the present structure would soon lose whatever momentary advantages accrued. See Jones v. Wittenberg, 330 F.Supp. at 712. The barbaric physical conditions at the ACI are but the ugly and shocking outward manifestations of a deeper dysfunction, an attitude of cynicism, hopelessness, predatory selfishness, and callous indifference that appears to infect, to one degree or another, almost everyone who comes in contact with the ACI and that the present administration, like its predecessors, appears powerless to correct or even arrest. If this diagnosis seems overly pessimistic, the Court can only reply that it is borne out by the nearly unanimous testimony of the inmates, correctional officials, and experts in this case, strengthened by the Court's own experience in nearly ten years of sitting in a succession of major cases dealing with conditions at the ACI, [36] and confirmed by the flood of prisoner petitions that continues unabated in this Court.
985 *985 To remedy the constitutional violations established, the Court is compelled to frame a remedy which will insure that plaintiffs' rights are vindicated with the maximum speed possible, taking into account that many of these intractable problems cannot be solved overnight. Any remedy framed by the Court will not, of course, trench upon the continuing obligation of the defendants to maintain, consistent with their responsibilities under state law, an orderly and secure institution.
Other courts have devised a wide range of approaches to resolving similar situations, and it should be emphasized to all concerned that the Court has extensive powers in this regard, including the transfer of prisoners to relieve overcrowding, the construction or alternation of prisons, the hiring of new personnel, affirmative action hiring programs, the elimination of certain types of employees, the institution of various programs, the development of standards and the renovation of facilities. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Williams v. Edwards, supra; Finney v. Arkansas Board of Corrections, supra; Newman v. Alabama, supra; Gates v. Collier, supra; Holt v. Sarver, supra; Barnes v. Government of the Virgin Islands, supra; Pugh v. Locke, supra; Inmates of Suffolk County Jail v. Eisenstadt, supra; Morales v. Turman,

supra; Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff'd, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam); Davis v. Watkins, 384 F.Supp. 1196 (N.D. Ohio 1976); Rhem v. Malcolm, 371 F.Supp. 594 (S.D.N.Y.), aff'd and remanded, 507 F.2d 333 (2d Cir. 1974); New York State Association for Retarded Children v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973); Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind. 1972), aff'd, 491 F.2d 352 (7th Cir. 1974); Inmates of Boys Training School v. Affleck, 346 F.Supp. 1354 (D.R.I.1972). See Comment 12 Harv. C.R.-C.L. L.Rev. at 390. Cf. Bounds v. Smith, 430 U.S. 817 at 830, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
This Court has no interest in operating the Adult Correctional Institutions in Rhode Island. It is not equipped for that task. Yet it has the duty to remedy the massive and serious constitutional violations established by plaintiffs. Corrections in Rhode Island are thus at the crossroads. If defendants are able to build and operate a constitutional prison system, this Court will gratefully turn to other pressing business. If defendants are unable to accomplish this task, the Court will have, in the end, but two last options: it will be forced to appoint its own expert or experts to do the job, assuming such persons can be found and that there is some chance of success; or the most drastic and unwanted measure of ordering the ACI closed. See, e. g., Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass.1973); Hamilton v. Love, 328 F.Supp. 1182, 1194 (E.D.Ark. 1971).
The ultimate solution to the deep-rooted problems of the ACI lies largely with choices that the State's elected and appointed officials must make in response to this Court's holding that the present correctional system is unconstitutional. The Court earnestly solicits their cooperation. However, it is clear beyond doubt that inadequate funding is no answer to the existence of unconstitutional conditions in state penal institutions.
Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed, upon what Respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System, it is going to have to be a system that is countenanced by the Constitution of the United States.
Holt v. Sarver, 309 F.Supp. 385. See Finney v. Arkansas Board of Corrections, 505 F.2d 194, 201 (8th Cir. 1974); Gates v. Collier, 501 F.2d 1291, 1319-1320 (5th Cir. 1974); Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). It should be made plain to all concerned that failure to comply with the minimum standards set forth in the order of 986 this Court will necessitate the closing *986 of such facilities as remain unfit for human habitation.
For the present, the Court will order the defendants to take immediate action to correct the most glaring abuses this case has uncovered. Beyond that, the Court sets out in its order the minimum standards with which defendants must comply.[37]
The complex nature of the task at hand, and the demands on the Court's time and attention which would be entailed by direct court supervision of the remedial order, have led the Court to rely on a Master to assist the Court in the remedial phase of these cases. The Master will monitor the defendants' implementation of the decree, review and evaluate the feasibility of plans proposed by the defendants, assist the defendants in formulating plans, and suggest such modification or supplementation of the Court's Order as seems necessary. To the extent that the Master identifies factors which obstruct compliance with the decree, he shall so advise the Court, and shall suggest necessary action. In short, the Master will act under Fed.R.Civ.P. 53, as an arm and as the eyes and ears of the Court. Although the Court cannot delegate its responsibility finally to resolve any disputes between the parties which may arise during the implementation period, this responsibility can be more intelligently, and perhaps more sparingly, exercised by reason of the Master's fair and impartial assistance.
The costs of these proceedings will be taxed against the defendants.
An Order will be entered accordingly.
ORDER
Pursuant to the findings of fact and conclusions of law set forth in the Opinion made and entered in this cause, it is the order, judgment, and decree of this Court that:

1. Defendants have violated plaintiffs' rights under the Eighth and Fourteenth Amendments to the Constitution as well as Title 42, Ch. 56 of the Rhode Island General Laws.
2. (a) Defendants shall, within three months from the entry of this order, remove all awaiting trial detainees from the present Maximum Security Facility; shall thereafter house said detainees in facilities which are separate from facilities which house sentenced prisoners; and thereafter shall prevent intermingling of, and contact between, detainees and sentenced prisoners;
(b) defendants shall house pre-trial detainees in facilities which comply with the minimum standards set forth hereafter in paragraph 4, and detainees shall not be housed in dormitories;
(c) defendants, within three months from the entry of this order, shall provide each awaiting trial detainee with recreational programs, and shall make available as soon as possible access, on a voluntary basis, to constructive work opportunities, to educational programs and to treatment programs which deal with problems associated with drug addiction, alcoholism, mental illness and physical illness or disabilities.
3. (a) Defendants shall, within thirty days from the entry of this order, advise the Court of a date certain when the present Maximum Security facility will no longer be used for housing prisoners, which date certain shall be no more than one year from the entry of the order; to the extent that the defendants are unable to comply with this deadline for those incorrigible inmates eventually to be housed in a new Maximum facility, the Court is prepared to permit retention of such inmates in the present structure, provided that the area housing them can be made fit 987 for human *987 habitation and provided further the defendants fully comply with the other relevant provisions of this order, particularly but not limited to paragraph 5;
(b) defendants shall within nine months from the entry of this order reduce the population of the Maximum Security facility in accordance with the reclassification process set forth hereafter in paragraph 5;
(c) defendants shall within six months from the entry of this order and for so long as they utilize the Maximum Security facility, bring said facility into economically feasible and practicable compliance with the minimum standards of the United States Public Health Service, the American Public Health Association and the Department of Health, State of Rhode Island, as they relate to food service, sanitation, lighting, plumbing and insect and rodent control.
4. (a) Defendants shall within nine months from the entry of this order, bring each building and facility under their control, particularly but not limited to the housing and food service areas of said buildings and facilities, into compliance with the minimum standards of the United States Public Health Service, the American Public Health Association, and the Department of Health, State of Rhode Island. (The separate compliance requirements for the Maximum Security facility are set forth in paragraph 3(c) above). Implementation of this paragraph 4(a) shall include, but not be limited to, the following:
(1) all facilities shall be adequately heated, lighted and ventilated. Windows and window panes shall be properly maintained and replaced when broken;
(2) each prisoner shall have access to household cleaning implements and supplies;
(3) a regular and effective program of insect and rodent control shall be undertaken;
(4) food shall be stored, prepared and served under sanitary conditions which meet minimum public health standards. Equipment shall be maintained in good working order. Kitchen employees and prisoners shall be adequately trained and supervised;
(5) all trash and debris shall be regularly removed from hallways, cellblocks, corridors and other common areas and trash and debris shall in no circumstances be stored or accumulated in vacant cells;
(6) all toilets, showers and wash basins shall be properly maintained and kept in good repair. Every cell shall be equipped with a working toilet that flushes from inside the cell and with a wash basin with hot and cold running water;

(7) no more than one prisoner shall be confined in any cell which is less than 60 square feet;
(8) every prisoner shall be provided with a clean mattress, which meets with federal fire safety standards, and with clean bed linens, towels and soap;
(9) each convicted prisoner housed in a dormitory shall have at least seventy-five square feet of personal living space and only those prisoners who have been classified as Minimum Security shall be housed in dormitories;
(10) each dormitory shall be equipped with at least one toilet to every 15 prisoners; one urinal or one foot of urinal trough to every 15 prisoners, one shower to every 15 prisoners and one sink to every 10 prisoners. Toilets and urinals shall be kept reasonably clean and in good working order.
(b) Defendants shall within one month from the entry of this order, employ a qualified sanitation or environmental health officer to assist the defendants in obtaining and maintaining compliance with the provisions of paragraphs 3.(c) and 4.(a).
(c) Defendants shall for one year from the entry of this order file a monthly written report with the Court setting forth their progress on implementing the provisions of this paragraph 4.
5. (a) Defendants, not having classified prisoners according to state law, shall, within six months from the entry of this order, reclassify all prisoners in the Rhode Island penal system.
988 *988 (b) Defendants shall contract with a qualified person or organization to aid in the implementation of the reclassification process detailed in this paragraph. The parties shall, within thirty days from the entry of this order, submit to the Court the names of such qualified persons or organizations.
(c) Defendants shall, in the reclassification process, arrange for personal interviews of each prisoner and gather all pertinent information about each prisoner's community and institutional life, including, but not limited to, the following:
1. the age, offense, prior criminal record, vocational, educational and work needs, and physical and mental health care requirements of each inmate;
2. special needs arising from age, infirmity, psychological disturbance or mental retardation, requiring transfer to a more appropriate facility, or special treatment within the institution; and
3. eligibility for appropriate transfer to a pre-release, work-release, or other community-based facility.
(d) Defendants shall, as a result of the reclassification, develop a written classification plan for each prisoner and implement said plan by assigning prisoners to suitable facilities and programs. After nine months from the entry of this order, no prisoner who has been classified as Minimum or Medium custody shall be confined in the Maximum Security facility, and all newly sentenced prisoners who are in the process of being oriented and classified (now housed in the Admissions and Orientation Unit) shall be as required by state law totally separated from other sentenced and classified prisoners. Upgraded classification for any inmate shall not be delayed or denied for lack of program or housing space.
(e) In order to implement the reclassification process, defendants shall:
1. establish adult basic education programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in these programs on a regular basis;
2. establish pre-vocational (including remedial education) and vocational training programs, designed to enhance marketable skills, with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;

3. establish recreational and avocational programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;
4. develop college extension programs so that they are available to prisoners at every Rhode Island prison facility;
5. create sufficient meaningful job opportunities so that every prisoner in the Rhode Island prison system shall have the opportunity to work and every prisoner who works at a job provided by the defendants shall be compensated for all work performed;
6. develop sufficient programs and facilities to provide that each prisoner, prior to release, is afforded the opportunity to participate in a transitional program designed to aid the prisoner's reentry into society;
7. establish work-release, pre-release, and other community-based facilities to accommodate those prisoners who have been identified as appropriate for participation in such programs.
(f) Defendants shall review the classification plan of each prisoner no less than once every twelve months.
6. Defendants shall hire an adequate number of mental health professionals to diagnose, treat and care for those prisoners who have mental health problems.
7. Defendants shall within six months from the entry of this order bring the health care delivery system into compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island.
989 *989 8. (a) Defendants shall within thirty days from the entry of this order establish a program for the treatment of inmates physiologically addicted to drugs or alcohol that does not require withdrawal by means of an abrupt denial or "cold turkey" approach.
(b) Defendants shall within three months from the entry of this order establish a program for the treatment of drug abuse that is in compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island.
(c) Defendants shall within thirty days from the entry of this order place the responsibility for the treatment of drug abuse under a physician able and willing to treat prison addicts.
9. Defendants shall within nine months from the entry of this order house all protective custody prisoners in accordance with the standards set forth for the general prisoner population in paragraph 4., and make available to protective custody prisoners the equivalent of the educational, vocational, recreational, avocational, job, transitional and community-based facility opportunities set forth in paragraph 5.
10. Within nine months from the entry of this order, every prisoner shall be confined in an institution suitable to his or her security classification.
11. A Master shall be appointed by the Court within thirty days and shall be empowered to monitor compliance with and implementation of the relief ordered in this case, in keeping with its purposes as recited in the Opinion. The Master shall also advise and assist the Department to the fullest extent possible. The Master will report on a monthly basis to the Court on the progress of such compliance and implementation.
(a) In order to carry out his duties, the Master or his delegates shall have unlimited access to any facilities, buildings or premises under the control of the Department of Corrections, or any records, files or papers maintained by said Department. Access shall be granted at any time and no advance notice shall be necessary.
(b) The Master is authorized to conduct confidential interviews at any time, without advance notice, with any staff member or employee of the Department or any prisoner. The Master or his delegate may attend any institutional meetings or proceedings.

(c) The Master may require written reports from any staff members or employees of the Department of Corrections with respect to compliance with and implementation of this Court's orders.
(d) The Master shall be empowered to recommend to the Court that any staff member or employee of such Department be moved or transferred within the Department as he deems necessary to obtain compliance with and implementation of this Court's order. In the event that hiring of additional personnel or the termination of any current personnel is necessary to carry out or to prevent interference with the Court's order, the Master shall file a written report with the Court explaining why such action is necessary. Defendants may file a written response to the report and the Court shall approve or reject the recommendation of the Master.
(e) The Master may act as a whole or through subcommittees appointed by him.
(f) The Master is authorized to select and hire with the prior approval of the Court, a full time staff consultant if such person is needed to assist him in carrying out his duties and one full time clerk-stenographer if needed. Adequate offices, equipment and supplies shall be made available by the defendants. The Master may also consult appropriate, independent specialists.
(g) Necessary expenses for carrying out the Master's duties shall be paid pursuant to Rule 53, Federal Rules of Civil Procedure, and shall be taxed as part of the costs of this case against the defendants in their official capacities.
990 12. The defendants shall, within six months from the date of this order, submit *990 to the Master and to the Court a comprehensive report setting forth their progress in the implementation of each and every subparagraph of this order. The report shall also include a timetable for full compliance.
13. Defendants shall pay to plaintiffs' counsel reasonable attorneys fees pursuant to Title 42 U.S.C. § 1988 together with costs and expenses incurred by plaintiffs in the prosecution of this action.
14. Jurisdiction is specifically retained in this case.
ADDENDUM
In further clarification of footnote 37 in the Opinion of the above-captioned cases dated August 10, 1977, the Court states it is not unmindful of the time strictures recited therein. For good cause shown and at the noticed request of the defendants, the Court is prepared to modify the same.
APPENDIX A
Set forth below are the leading standards published by professional bodies, and the leading cases, on which the minimum standards embodied in paragraphs 4, 5, and 6 of the order in these cases are based. The Court also relied on the expert testimony adduced at trial.
Table of Abbreviations
N.A.C. - National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections (1973) A.C.A. - American Correctional Association, Manual of Correctional Standards (1966) A.B.A. - American Bar Association Section of Criminal Justice, Draft of Standards Relating to the Legal Status of Prisoners (1977) A.P.H.A. - American Public Health Association, Standards for Health Services in Correctional Institutions (1976) Walton - Walton, Graham, Institutional Sanitation, United States Bureau of Prisons, 1965 N.S.A. - National Sheriffs Association, Standards for Inmates Legal Rights (1974) A.L.I. - American Law Institute, Model Penal Code - Part III on Treatment and Correction (1962)
The N.A.C., A.C.A., N.S.A., and A.L.I. standards are collected in United States Department of Justice, Law Enforcement Assistance Administration, Compendium of Model Correctional Legislation and Standards (2nd ed.

1975). See also Estelle v. Gamble, 429 U.S. 97, 103-4 n. 8, 97 S.Ct. 285, 50 L.Ed.2d 251 (compilation of minimum standards); id., at 110-111 n. 3, 97 S.Ct. at 294 n. 3 (Stevens, J., dissenting) (compilation of minimum health and medical care standards in prisons). 4.(a) N.A.C. - Standard 2.5 and Commentary at 34-35 A.C.A. - Principle XVI and Chapter 20, pp. 346-347 and Chapter 27 A.B.A. - Standard 6.12 and Commentary at 559-561 A.P.H.A. - Chapters VI and VII N.S.A. - Principle 3 Walton - entire volume Williams v. Edwards, 547 F.2d 1206, 1214 (5th Cir. 1977) Gates v. Collier, 501 F.2d 1291, 1302 (5th Cir. 1974), further relief granted, 423 F.Supp. 732 (N.D. Miss.1976) Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976) Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974) Mitchell v. Untreiner, 421 F.Supp. 886, 890 (N.D.Fla.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1234 (D.V.I.1976) Alberti v. Sheriff of Harris County, 406 F.Supp. 649, 676-677 (S.D.Tex.1975) Pugh v. Locke, 406 F.Supp. 318, 334-35 (M.D.Ala.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 554 (E.D.La.1972) 4.(a)(1) A.P.H.A. - Chapter VI, Sections B.4, C.1, C.2, C.5 Walton 991 A.C.A. - Ch. 20, pp. 346-347 *991 N.A.C. - Standard 2.5 A.B.A. - Standard 6.12 N.S.A. - Principle 3 Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972) Pugh v. Locke, 406 F.Supp. 318, 334 (M.D.Ala.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 554 (E.D.La.1972) Inmates of the Boys' Training School v. Affleck, 346 F.Supp. 1354, 1373 (D.R.I.1972) Jones v. Wittenberg, 330 F.Supp. 707, 721 (N.D.Ohio 1971) 4.(a)(2) A.B.A. - Standard 6.12 A.P.H.A. - Chapter VI, Sections C.6, E.1 Pugh v. Locke, 406 F.Supp. 318, 334 (M.D.Ala.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 553 (E.D.La.1972) Hamilton v. Love, 328 F.Supp. 1182, 1185 (E.D.Ark.1971) Gates v. Collier, 423 F.Supp. 732, 742 (N.D.Miss.1976) 4.(a)(3) A.P.H.A. - Chapter VI, D.3 Walton

Mitchell v. Untreiner, 421 F.Supp. 886, 898 (N.D.Fla.1976) Tate v. Kassulke, 409 F.Supp. 651, 661 (W.D.Ky.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 553 (E.D.La.1972) Hamilton v. Love, 328 F.Supp. 1182, 1185 (E.D.Ark.1971) 4.(a)(4) A.B.A. - Standard 6.12 A.C.A. - Ch. 27 A.P.H.A. - Chapter VI, Section D.1, Chapter VII Rules and Regulations Pertaining to Food Establishments, State of Rhode Island, Department of Health, Defendants' Exhibit E Mitchell v. Untreiner, 421 F.Supp. 886, 900 (N.D.Fla.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1232, 1234 (D.V.I.1976) Pugh v. Locke, 406 F.Supp. 318, 334 (M.D.Ala.1976) Bel v. Hall, 392 F.Supp. 274, 277 (D.Mass.1974) Hamilton v. Landrieu, 351 F.Supp. 549, 553 (E.D.La.1972) Collins v. Schoonfield, 344 F.Supp. 257, 279 (D.Md.1972) Jones v. Wittenberg, 330 F.Supp. 707, 716 (N.D.Ohio 1971) 4.(a)(5) A.P.H.A. - Chapter VI, Sections B.2 and C.6 Walton A.B.A. - Standard 6.12 Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 553 (E.D.La.1972) Collins v. Schoonfield, 344 F.Supp. 257, 279 (D.Md.1972) 4.(a)(6) A.B.A. - Standard 6.12 A.P.H.A. - Chapter VI, Sections D.5, C.6, E.1 & 2 Walton Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) Tate v. Kassulke, 409 F.Supp. 651, 662 (W.D.Ky.1976) Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 690 (D.Mass.1973) Hamilton v. Landrieu, 351 F.Supp. 549, 553-554 (E.D.La.1972) 992 *992 Jones v. Wittenberg, 330 F.Supp. 707, 721 (N.D.Ohio 1971) Miller v. Carson, 401 F.Supp. 835 (M.D.Fla.1975) 4.(a)(7)

N.A.C. - Standard 2.5 A.B.A. - Standard 6.12 A.P.H.A. - Chapter VI, Section C.3 National Sheriffs Association, Handbook on Jail Architecture Gates v. Collier, 390 F.Supp. 482 (N.D.Miss.1975) Ambrose v. Malcolm, 414 F.Supp. 485 (S.D.N.Y.1976) Martinez Rodriguez v. Jimenez, 409 F.Supp. 582 (D.P.R.1976) Campbell v. McGruder, 416 F.Supp. 100, 106 (D.D.C.1976) Inmates of D. C. Jail v. Jackson, 416 F.Supp. 119 (D.D.C.1976) Taylor v. Perini, 413 F.Supp. 189 (N.D.Ohio 1976) Miller v. Carson, 401 F.Supp. 835 (M.D.Fla.1975) Alberti v. Sheriff of Harris County, 406 F.Supp. 649 (S.D.Tex.1975) 4.(a)(8) A.C.A. - Ch. 20, pp. 346-347, Ch. 28, p. 463 A.B.A. - Standard 6.12 A.P.H.A. - Chapter VI, Sections E.1 and 2 N.S.A. - Principle 3 Mitchell v. Untreiner, 421 F.Supp. 886, 897 (N.D.Fla.1976) Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 596 (D.P.R.1976) Tate v. Kassulke, 409 F.Supp. 651, 662 (W.D.Ky.1976) Pugh v. Locke, 406 F.Supp. 318, 334 (M.D.Ala.1976) Hamilton v. Landrieu, 351 F.Supp. 549, 553 (E.D.La.1972) Jones v. Wittenberg, 330 F.Supp. 707, 717 (N.D.Ohio 1971) Campbell v. McGruder, 416 F.Supp. 100 (D.D.C.1975) 4.(a)(9) A.P.H.A. - Chapter VI, C.3 Pugh v. Locke, 406 F.Supp. 318, 334 (M.D.Fla.1976) 4.(a)(10) Walton A.P.H.A. - Chapter VI, Section E.2 Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) 4.(b) A.P.H.A. - Chapter VI, Section F A.C.A. - Ch. 27, p. 453 Mitchell v. Untreiner, 421 F.Supp. 886, 898, 900 (N.D.Fla.1976) Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976) Alberti v. Sheriff of Harris County, 406 F.Supp. 649, 677 (S.D.Tex.1975) 5.(a)

N.A.C. - Chapter 6 A.B.A. - Standard 3.5 and Commentary at 455-458 A.C.A. - Chapter 21 R.I.G.L. - § 42-56-29 Mitchell v. Untreiner, 421 F.Supp. 886 (N.D.Fla.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1232 (D.V.I.1976) Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976) Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 594 (D.P.R.1976) Rhem v. Malcolm, 396 F.Supp. 1195 (S.D.N.Y.1975) Hamilton v. Landrieu, 351 F.Supp. 549, 552 (E.D.La.1972) 993 *993 Jones v. Wittenberg, 330 F.Supp. 707, 717 (N.D.Ohio 1971) Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971) 5.(b) Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976) 5.(c) R.I.G.L. - § 42-56-29 Morris v. Travisono, 310 F.Supp. 857, 865 (D.R.I.1970) A.C.A. - Chapter 21, pp. 356-362 Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976) Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 594, 596 (D.P.R.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976) N.A.C. - Standard 11.5(3) 5.(d) R.I.G.L. - § 42-56-29 Morris v. Travisono, 310 F.Supp. 857, 865 (D.R.I.1970) Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) A.C.A. - Chapter 21, p. 362 5.(e)
Educational Programs
N.A.C. - Standards 2.9, 11.4 A.B.A. - Standard 5.7 A.C.A. - Chapters 21 and 30 A.L.I. - Articles 304.6 and 304.8 Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976) Mitchell v. Untreiner, 421 F.Supp. 886, 901 (N.D.Fla.1976) Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970)

Alberti v. Sheriff of Harris County, 406 F.Supp. 649, 673, 677 (S.D.Tex.1975) Miller v. Carson, 401 F.Supp. 835, 900 (M.D.Fla.1975) Hamilton v. Landrieu, 351 F.Supp. 549, 552 (E.D.La.1972) Brenneman v. Madigan, 343 F.Supp. 128 (N.D.Cal.1972) Jones v. Wittenberg, 330 F.Supp. 707, 717 (N.D.Ohio 1971)
Vocational and Meaningful Work Programs
N.A.C. - Standards 2.9, 11.4 and 11.10 A.C.A. - Chapters 21 and 30 A.B.A. - Standards 4.1-4.4 A.L.I. - Articles 304.6 and 304.8 Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976) Alberti v. Sheriff of Harris County, 406 F.Supp. 649, 677 (S.D.Tex.1975) Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970)
Recreational and Avocational Programs
N.A.C. - Standards 2.9 and 11.8 A.C.A. - Chapters 21 and 32 Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976) Pugh v. Locke, 406 F.Supp. 318, 335 (M.D.Ala.1976) Moore v. Janing, 427 F.Supp. 567, 575 (D.Neb.1976) Mitchell v. Untreiner, 421 F.Supp. 886, 901 (N.D.Fla.1976) Alberti v. Sheriff of Harris County, 406 F.Supp. 649 (S.D.Tex.1975) Rhem v. Malcolm, 396 F.Supp. 1195, 1202 (S.D.N.Y.1975) 994 *994 Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass.1973) Hamilton v. Landrieu, 351 F.Supp. 549, 550 (E.D.La.1972) Jones v. Wittenberg, 330 F.Supp. 707, 717 (N.D.Ohio 1971) Hamilton v. Love, 328 F.Supp. 1182, 1185 (E.D.Ark.1971)
Pre-release and Transition Programs
N.A.C. - Standards 7.1 and 7.4 and accompanying commentary Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) 5.(f) A.B.A. - Standard 3.5 A.C.A. - Chapter 21 Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976)

Barnes v. Virgin Islands, 415 F.Supp. 1218, 1233 (D.V.I.1976)
6.
N.A.C. - Standard 11.5(3) A.B.A. - Standards 5.1 and 5.2 A.C.A. - Chapter 26, pp. 436-443
Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977)
Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976)
Barnes v. Virgin Islands, 415 F.Supp. 1218, 1232, 1234 (D.V.I.1976)
Alberti v. Sheriff of Harris County, 406 F.Supp. 649, 677 (S.D.Tex.1975)
Battle v. Anderson, 376 F.Supp. 402, 434 (E.D.Okl.1974)
Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975)
[1] For this reason, much of the evidence presented by defendants at trial is not recounted here. The Court has considered all of the evidence proffered by defendants, but finds that it failed for the most part to contradict the evidence offered by plaintiffs, or to address the issues raised in this case.
[2] At various points throughout this Opinion, the Court will refer to "minimum standards." Each expert attempted to measure conditions at the ACI according to the minimum standards for similar institutions promulgated by various professional organizations. See, e. g., National Advisory Commission on Criminal Justice Standards and Goals, Corrections (1973); Graham Walton, Myrl Alexander, and the U.S. Bureau of Prisons, Institutional Sanitation (1965); American Public Health Association, Standards for Health Services in Correctional Institutions (1976); U.S. Department of Health, Education, and Welfare, Public Health Service, Food Service Sanitation Manual (1962); Joint Committee on the Legal Status of Prisons of the American Bar Association, Tentative Draft of Standards Relating to the Legal Status of Prisoners, reprinted in 14 Am.Crim.L. Rev. 377 (1977), 21 Crim.L.Rep. 3213 (July 20, 1977); American Correctional Association, Manual of Correctional Standards (1966); National Sheriffs' Association, Standards for Inmates Legal Rights (1974). While variance from any of these standards does not establish per se a constitutional violation, the standards have generally been drawn to establish minimally acceptable health, sanitary, and living conditions. See n. 30 infra; see also the appendix to this Opinion.
[3] The Associate Director of Maximum Security observed:
During the summer the whole institution is damp at night and again you have the situation where the inmates on the top tier are suffocating, and the inmates on the bottom tier really feel the dampness.
Brule Dep. at 11-12, pl. ex. 25.
[4] The statement by ACI officials to the press after the Tennessee fire publicly claiming that such mattresses had been replaced more than six months ago was contradicted by the evidence and the Court's own inspection. Such misstatements can hardly create confidence in the Department's ability forthrightly to acknowledge its problems, preparatory to solving them.
[5] Incredible as it seems, there was no written fire escape plan for inmates in Maximum until July 22, 1977, when the Department prepared one as part of a consent decree in DeFreitas v. Erickson, No. 76-0511 (D.R.I. May 18, 1977).
[6] It should be noted that Maximum Security is overcrowded, although not to the degree found in some reported cases. Ronald Brule, the Associate Director in charge of day-to-day management of Maximum, testified that the capacity of Maximum as of April 5, 1977 was 410, and that it carried on that day 407 inmates. He observed that operation at full capacity left him unable to transfer prisoners within Maximum to avert disputes and lessen violence. Also, inmates needing protective custody are confined to segregation in Maximum, or placed with sick

inmates in the infirmary, when Maximum operates at or near capacity. In general, commenting on the existing overcrowding of recreation areas, dining areas, and sitting areas, he stated that the present population level "makes the existing problems that much worse."
Brule Dep. at 3, pl. ex. 25.
[7] See generally Morris v. Travisono, 310 F.Supp. 857, 865 (D.R.I.1970).
[8] See R.I.G.L. § 42-56-1 (Supp.1976).
[9] One witness, a 19-year old prisoner, has been at the ACI since April, 1976. He has never been given educational or psychological tests. He has had no physical examination. He has seen his counselor for two short visits since October 1976, and each time has been told that there are no programs for him when he requested something to do.
[10] A review of prisoner files by one of plaintiffs' experts with great expertise in classification turned up the case of an inmate who had been diagnosed by a psychiatrist as having a personality disorder. He was never provided any treatment for this condition while at the ACI. When he came up for parole, his application was denied because he had not received the care that was never provided for him. His file included a recommendation by a correctional officer that he be released because there was nothing the institution could do for him. Another correctional officer had no recommendation to make regarding this inmate but felt compelled to inform the parole board that this inmate had "a lousy personality."
[11] One expert testified that less than 3% of the men in the Maximum Security facility he had run for eleven years required protective custody or segregation. In Texas, only 1% of the 20,000 inmates require protective custody, a figure attributed to the wide-ranging industrial programs of the Texas Corrections Department. He also pointed out that other states, which like Rhode Island have only a single prison, have no more than one or two inmates in protective custody.
[12] Less than two years ago, this Court recounted numerous incidents of physical violence at the ACI, which led prison officials to conclude that safety could be maintained only by a two-month lockup. See David v. Travisono, and Morris v. Travisono, 373 F.Supp. 177 (D.R.I. 1975). The level of fear and violence at the ACI is undiminished.
[13] Southworth Dep. at 67, pl. ex. 22. See id. at 60.
[14] It is worth noting that Dr. Carl Clements, a court-appointed expert witness for Chief Judge Johnson in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), found the idleness at the ACI even more extreme than that he had seen in the Alabama system condemned in Pugh as violative of the Eighth Amendment.
[15] In a 1975 report for the Law Enforcement Assistance Administration, the American Justice Institute concluded that the lack of program activity for the more than 100 protective custody inmates was "inexcusable."
[16] One inmate testified to his daily schedule in protective custody. Except for three fifteen-minute meals (at 8:45; 12:30; and 3:30), he spends all his time in his dormitory, a room about the size of an average courtroom, in the company of 40 other inmates, playing cards and watching television. This includes the stretch from 4 p. m. to 11 p. m.
[17] Among his other positions, Mr. Nagel served as a consultant to the Department of Justice from 1970 to 1972 visiting 103 correctional institutions across the country.
[18] Dr. Raynes compared these figures with the extent of drug usage at the Massachusetts Correctional Institution at Walpole. In April 1976 he found only two current heroin addicts at Walpole, and current drug abuse among 10-15% of the population.
[19] The Court received some evidence showing that a drug treatment facility is in the planning stage. See pl. ex. 5C. However, there was no indication that any treatment has actually materialized, nor that it will solve the problems documented at trial.

[20] A report prepared for the Department in early 1977 specifically recommends that Dr. Donahue be excluded from participation in any drug treatment program:
. . . the current physician seems unable or unwilling to diagnose or respond therapeutically to the drug abusing inmate.
The report cited "the ACI's inadequate and inappropriate medical response" since the outset of planning for improved drug treatment at the ACI. See Report on Training and Technical Assistance, Rhode Island Department of Corrections (1977), pl. ex. 5(c) at 5.
[21] Hepatitis is another expected, and present, result.
[22] Defendants made no attempt to counter plaintiffs' expert testimony with experts of their own. They did call the recently hired Medical Services Administrator. While the Court was not unfavorably impressed with this individual and is sympathetic to his attempts to bring some order to a system that badly needs it, he did not qualify as an expert on the subject of medical standards and thus could not enlighten the Court on that subject.
[23] See also the description of sanitary conditions in the infirmary at page 963, supra.
[24] After this obvious and most dangerous deficiency was pointed out by plaintiffs during trial, defendants hastily devised a preliminary version of a disaster plan that they claim will be instituted soon.
[25] But see n. 6 supra.
[26] See note 1 supra.
[27] See, e. g., the reports cited ante, at 971.
[28] Southworth Deposition at 24, pl. ex. 22.
[29] For example, after a new Maximum facility is built, defendants expect to house the remaining population in the present Medium Building and in other currently existing structures at the ACI's Cranston complex. Since the completion of the new Maximum is less than two years away, according to defendants' timetable, one would expect that blueprints, cost estimates and the like for the renovation of existing structures would have been prepared. No such detailed plans exist, however, and thus the Court cannot say with any certainty that defendants' plan is realistic or even possible, much less acceptable.
[30] Defendants argue that the mere fact that conditions at the ACI do not meet the minimum standards set by the relevant professional and governmental bodies and testified to by plaintiffs' experts does not mean that the ACI fails to comport with constitutional minima. While this may be true under some circumstances, see Williams v. Edwards, 547 F.2d 1206, 1214 (5th Cir. 1977) failure to meet the minimum standards set by professional bodies is a factor to be considered in determining whether constitutional requirements have been met. Cf. id. (state code violation significant factor in determining existence of Eighth Amendment violation). See also Estelle v. Gamble, 429 U.S. 97, 103-104 n. 8, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In any event, the Court holds that conditions at the ACI are so gross as to violate the standards of basic humanity shared by most citizens. Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 689 (D.Mass. 1973).
[31] Because it holds that defendants have a plain statutory duty to make rehabilitative programs available to each inmate under Rhode Island law, see R.I.G.L. § 42-56-31, the Court need not reach the more difficult question whether convicted adult inmates have a constitutional right to rehabilitation in an institution that otherwise comports with minimum constitutional standards. See n. 27 infra; cf. Inmates of Boys' Training School v. Affleck, 346 F.Supp. 1354, 1367 (D.R.I.1972) (confinement of juveniles in anti-rehabilitative setting violates due process); Nelson v. Heyne, 491 F.2d 352, cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). This course is dictated by Hagens v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). The question of state law is easily resolved, and abstention under the doctrine of Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) seems unwarranted. See Lombardo v. Meachum, 548 F.2d 13, 15 n. 3 (1st Cir. 1977); Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); see also Taylor v. Sterret, 499

F.2d 367 (5th Cir. 1974), cert. denied 420 U.S. 983, 95 S.Ct. 1414, 43 L.Ed.2d 665 (1975) (pendent jurisdiction over state laws regarding prison conditions).
[32] The Court agrees fully with the reasoning of Judge (now Circuit Judge) Henley in the leading case of Holt v. Sarver, 309 F.Supp. 362, 379 (E.D.Ark.1970), and finds it applicable to the case at bar:
This Court knows that a sociological theory or idea may ripen into constitutional law; many such theories and ideas have done so. But, this Court is not prepared to say that such a ripening has occurred as yet as far as rehabilitation of convicts is concerned. Given an otherwise unexceptional penal institution, the Court is not willing to hold that confinement in it is unconstitutional simply because the institution does not operate a school, or provide vocational training, or other rehabilitative facilities and services which many institutions now offer.
That, however, is not quite the end of the matter. The absence of an affirmative program of training and rehabilitation may have constitutional significance where in the absence of such a program conditions and practices exist which actually militate against reform and rehabilitation. . . .
It can be said safely that except in a very, very few and unusual cases confinement in the Arkansas State Penitentiary today is the opposite of beneficial. As a generality it may be stated that few individuals come out of it better men for their experience; most come out as bad as they went in, or worse.
Living as he must under the conditions that have been described, with no legitimate rewards or incentives, in fear and apprehension, in degrading surroundings, and with no help from the State, an Arkansas convict will hardly be able to reform himself, and his experience in the Penitentiary is apt to do nothing but instill in him a deep or deeper hatred for an alienation from the society that put him there. And the failure of the State to help him become a good citizen will be compounded by the ever present willingness of his fellow inmates to train him to be a worse criminal.
Thus, the absence of rehabilitation services and facilities of which Petitioners complain remains a factor in the overall constitutional equation before the Court.
[33] Rhode Island has long required the classification of inmates at the ACI. See R.I.G.L. § 42-56-29 to § 42-56-32; Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970). The Court therefore need not decide whether the Constitution requires a minimally rational classification process, although most courts have concluded that it does, if only because excessive fear and violence cannot otherwise be contained. See, e. g., Pugh v. Locke, 406 F.Supp. 318, 330 (M.D.Ala.1976); Rhem v. Malcolm, 317 F.Supp. 594, 625 (S.D.N.Y.1974) and cases collected there, aff'd 507 F.2d 333 (2d Cir. 1975). The Court also does not decide whether a federal right would be violated on the basis of procedural or substantive infirmities in the classification procedures utilized in any particular case. Compare Lombardo v. Meachum, 548 F.2d 13, 15 (1st Cir. 1977); see also State v. Brant, 99 R.I. 583, 209 A.2d 455 (1965) (classification system). The gravamen of plaintiffs' action here is that the process has collapsed in toto, failing generally to meet the statutory requirements.
[34] It appears that much of the "security" afforded inmates in protective custody is illusory, in light of evidence, inter alia, regarding continued sexual attacks on protective custody inmates by other protective custody inmates.
[35] In many ways, the prohibition against cruel and unusual punishment is more flagrantly violated by punishment which is the result of administrative action or neglect than by excessive statutory penalties. Punishment which results from the deliberative processes of the legislature carries a presumption of regularity when confronted by an Eighth Amendment challenge; that presumption does not protect the arbitrary indifference, neglect, or cruelty of petty officials and administrators. Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 49 L.Ed.2d 859 (Stewart, Powell, and Stevens, JJ.) (1976). See generally id., at 174-76, 179-82, 96 S.Ct. 2909. The Court questions whether the Rhode Island legislature would establish sentences explicitly requiring inmates to endure the grave risks of increased morbidity engendered by the unacceptable medical care available at the ACI, or other aspects of life at the ACI (fear of sexual attack and violence, risk of fire, and so on) detailed above.
[36] See page 960, supra.

[37] In the appendix, attached to this Opinion, the Court sets forth the standards published by professional bodies, and the leading cases, on which the minimum standards in paragraphs 4, 5, and 6 of the Order in this case are based.
The Court is not unmindful that the emergency measures set forth in its Order may necessitate the temporary use of facilities which do not lend themselves, in certain respects, to economically feasible compliance with each of the standards detailed herein. To that extent, the Court is prepared to modify the Order at the noticed request of the defendants with the advice of the Master.
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 599 F.2d 17 (1979)

Nicholas A. PALMIGIANO et al., Plaintiffs-Appellees, v.
J. Joseph GARRAHY et al., Defendants-Appellants.

No. 79-1021.

United States Court of Appeals, First Circuit.

Argued May 11, 1979. Decided June 6, 1979.

18 *18 William G. Brody, Asst. Atty. Gen., Providence, R. I., with whom Dennis J. Roberts, II, Atty. Gen., and Maureen E. McKenna, Sp. Asst. Atty. Gen., Providence, R. I., were on brief, for defendants-appellants.

Matthew L. Myers, Providence, R. I., with whom Alvin J. Bronstein, Washington, D. C., and Robert Mann, Providence, R. I., were on brief, for plaintiffs-appellees.

Before CAMPBELL and BOWNES, Circuit Judges, DEVINE, District Judge.[*]

BOWNES, Circuit Judge.

This case can best be described as a spin-off from a massive prison case which probed all aspects of the Adult Correctional Institutions of Rhode Island. Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977). The District Court of Rhode Island found that the overall conditions of confinement at the maximum and medium security prisons violated the cruel and unusual punishment proscription of the eighth amendment.

The evidence is overwhelming that the totality of conditions of confinement in Maximum and

Medium do not provide the "tolerable living environment", Rhem v. Malcolm, 371 F. Supp. 594,

627 (S.D.N.Y.), aff'd 507 F.2d 333 (2d Cir.1974), that the Eighth and Fourteenth Amendments

require for state prison inmates. Compare Williams v. Edwards, 547 F.2d 1206, 1211 (5th

Cir.1974); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir.1971); Mitchell v. Untreiner, 421 F. Supp. 886,

896 (N.D.Fla. 1976); Pugh v. Locke, 406 F. Supp. [318] at 329 (D.C.Ala.); Hamilton v. Schiro, 338

F. Supp. 1016, 1019 (E.D.La. 1970). The lack of sanitation, lighting, heating and ventilation and

the noise, idleness, fear and violence, and the absence or inadequacy of programs of

classification, education, physical exercise, vocational training or other constructive activity create

19

a total environment where debilitation is *19 inevitable, and which is unfit for human habitation and

shocking to the conscience of a reasonably civilized person.

Id. at 979.

An extensive order was issued on August 10, 1977, designed to correct the unconstitutional conditions. No appeal was taken from the opinion or order. Paragraph 4.(a)[1] of the order now being challenged by defendantsappellants on the grounds that in its present posture it unconstitutionally invades the fiscal autonomy of the State of Rhode Island, and that, under the constitution and statutes of Rhode Island, the governor is powerless to comply with it.
A review of the "travel"[2] of the order is necessary. All of the necessary facts have been stipulated. The court set a May 10, 1978, deadline for compliance with paragraph 4.(a). The governor included in his budget request of January, 1978, an item for funds to implement the changes he felt were necessary to carry out the order. The amount was a little less than $300,000 ($299,200). This budget item was rejected by the Rhode Island Legislature, which enacted a bill placing the issue of funding necessary to comply with paragraph 4.(a) on a bond referendum. The bond referendum was defeated by the voters at the election on November 7, 1978.[3]

On May 10, 1978, the original compliance date, defendants filed a motion for a six month extension of time. Plaintiffs and defendants exchanged proposals for compliance between May 23, 1978, and July 25, 1978. On August 8, 1978, the court-appointed Master held a conference with all counsel to review the compliance proposals. After reviewing the proposals, the Master appointed a public health expert to inspect the two prisons in question and make a recommendation for compliance. The expert found that both facilities failed to comply with the minimum public health standards required by the August 10, 1977, order. On August 31, 1978, defendants submitted a final compliance proposal.

This proposal was incorporated into the Master's report, which was presented to the district court and all parties 20 on October 6, *20 1978. A hearing on the report was held by the district court on October 6. Defendants asked for
and were given an extra week to determine whether they objected to any portion of the report and the proposals incorporated therein. At the second hearing on October 13, 1978, defendants informed the court that they had no specific objection to the Master's report. At the conclusion of the hearing, the district court invited the parties to submit to the Master any ideas for reducing the cost of compliance. No suggestions were made. The court then issued, on November 9, the order which is the subject of this appeal.

The order is tripartite: it first outlines the history of paragraph 4.(a) as recited above; secondly, it sets specific deadlines;[4] and, thirdly, it warns defendants that lack of funds is no excuse for unconstitutional prison
conditions. The last two paragraphs of the order state:

The record in this case demonstrates that the parties have been given every opportunity to account for practical exigencies in the development of an adequate plan for renovating these facilities. There is no legal basis for allowing any further delay.

Finally, the Master is directed to make findings of fact and recommendations to the Court regarding defendants' compliance as he sees fit. Those findings and recommendations need not be limited to the issue of implementation of this renovation schedule and may address defendants' compliance with paragraph 4.(a) in all respects.

At oral argument, we were informed by counsel for the parties that the Rhode Island Legislature had on May 4, 1979, approved appropriations in the amount of $449,000 for prison repairs and renovations and that LEAA would issue a matching grant. There is, therefore, no longer any dearth of funds or lack of power in the defendant-governor to implement the order.

Defendants insist, however, that the case is not moot and that we declare the order invalid because it was issued with full knowledge that the governor did not have the funds necessary for compliance and was forbidden by the constitution and statutes of Rhode Island from ordering repairs and renovations without the requisite funding.[5] Plaintiffs, not surprisingly, assert that the order is perfectly valid and urge us to declare it constitutional.

We do not think the issue is ripe for decision at this time. While the order may have been a preliminary step leading to a classic confrontation between the governor of a state and the United States District Court, such confrontation is still in the mind of the beholder. The order carries no sanctions and expressly directs the Master "to make findings of fact and recommendations to the Court regarding defendants' compliance as he sees fit." This is far different from the order in Welsch v. Likins, 550 F.2d 1122 (8th Cir.1977), on which defendants rely. There, the court found that it had authority to enjoin the enforcement of the Minnesota constitutional provision and fiscal control statutes. No such authority has been asserted here and no injunction has been issued. In vacating and remanding for further consideration, the court in Welsch expressly noted:

21

*21 Conflicts between federal judicial power and state and local governments have arisen in the

past and will doubtless arise again. But needless direct confrontations between a federal court

and a state should be avoided, particularly in a field as delicate as the one here involved.

Id. at 1132. This is salutary advice.

It now appears that, unlike the situation which faced the court in Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98, 101 (1st Cir.1978), the unconstitutional conditions will not continue interminably at the two Rhode Island

prisons. Since this appeal has had the effect of postponing the April and June deadlines for compliance, we remand for further consideration by the district court in light of the most recent developments.
So ordered.
[*] Of the District of New Hampshire, sitting by designation.
[1] "4.(a) Defendants shall within nine months from the entry of this order, bring each building and facility under their control, particularly but not limited to the housing and food service areas of said buildings and facilities, into compliance with the minimum standards of the United States Public Health Service, the American Public Health Association, and the Department of Health, State of Rhode Island. (The separate compliance requirements for the Maximum Security facility are set forth in paragraph 3(c) above). Implementation of this paragraph 4(a) shall include, but not be limited to, the following:
(1) all facilities shall be adequately heated, lighted and ventilated. Windows and window panes shall be properly maintained and replaced when broken;
(2) each prisoner shall have access to household cleaning implements and supplies;
(3) a regular and effective program of insect and rodent control shall be undertaken;
(4) food shall be stored, prepared and served under sanitary conditions which meet minimum public health standards. Equipment shall be maintained in good working order. Kitchen employees and prisoners shall be adequately trained and supervised;
(5) all trash and debris shall be regularly removed from hallways, cellblocks, corridors and other common areas and trash and debris shall in no circumstances be stored or accumulated in vacant cells;
(6) all toilets, showers and wash basins shall be properly maintained and kept in good repair. Every cell shall be equipped with a working toilet that flushes from inside the cell and with a wash basin with hot and cold running water;
(7) no more than one prisoner shall be confined in any cell which is less than 60 square feet;
(8) every prisoner shall be provided with a clean mattress, which meets with federal fire safety standards, and with clean bed linens, towels and soap;
(9) each convicted prisoner housed in a dormitory shall have at least seventy-five square feet of personal living space and only those prisoners who have been classified as Minimum Security shall be housed in dormitories;
(10) each dormitory shall be equipped with at least one toilet to every 15 prisoners; one urinal or one foot of urinal trough to every 15 prisoners; one shower to every 15 prisoners and one sink to every 10 prisoners. Toilets and urinals shall be kept reasonably clean and in good working order."
[2] An indigenous Rhode Island term meaning procedural history.
[3] The bond referendum contained a number of funding issues, most of which were defeated.
[4] The "B" building deadlines were April 1, 1979, for "phase 1" of the Master's schedule and September 1, 1979, for "phase 2." The Medium Security building deadlines were June 1, 1979, and November 1, 1979.
[5] Article XXXI § 1 of the Rhode Island Constitution provides:
Borrowing power of general assembly. 0907 The general assembly shall have no powers, hereafter, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall they in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with this state by the government of the United States.

R.I.Gen.Laws § 35-3-2 provides: Annual appropriations for state government. 0907 The general assembly shall annually appropriate such sums as it may deem necessary to pay the administrative and other expenses of the state government.
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 639 F.Supp. 244 (1986)
Nicholas A. PALMIGIANO, et al. v.
J. Joseph GARRAHY, et al. Thomas R. ROSS, et al. v.
J. Joseph GARRAHY, et al.
C.A. Nos. 74-0172 P, 75-0032 P.
United States District Court, D. Rhode Island.
May 12, 1986.
245 *245 Alvin J. Bronstein, Washington, D.C., for plaintiffs.
David Prior, Asst. Atty. Gen., Providence, R.I., for defendants.
OPINION AND ORDER
PETTINE, Senior District Judge.
At issue are the remedial orders promulgated by this Court on August 12, 1977 (hereinafter, "1977 Order") resulting from a 42 U.S.C. § 1983 consolidated class action brought by five prisoners confined in the Adult Correctional Institutions; they claimed, and the Court found, that the conditions of their confinement were unconstitutional.[1] The question is whether changed conditions of confinement and the subsequent United States Supreme Court cases of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) and Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) mandate reconsideration of the aforesaid August 10, 1977 decree.[2]
246 *246 In the nigh on to nine years that have elapsed since the publication of Palmigiano there has been an endless stream of motions and hearings; virtually all have concerned the state's failure to comply with the 1977 Order. The repetitive lament offered by the state was its inability to accomplish the ordered changes within the established time frames. And with patient confidence the Court bowed, with the same leitmotiv, continuing the matter to another day. This court was interested only in achieving the broad objective it had set rather than in imposing its preemptory power of contempt.
At a status conference held on September 25, 1984 the defendants, true to past practices, again requested that the then existing compliance and reporting deadlines be amended. Again the Court agreed. The defendants set their own dates; all existing remedial requirements were incorporated in what the Court fallaciously believed was the final order which would be satisfied within reasonable limits of the target dates. On November 19, 1984 the order issued.[3]
247 *247 On July 22, 1985 the Special Master appointed by the Court filed his Findings and Recommendations. His report showed that the defendants were not in compliance with certain provisions of the November 19, 1984 order. On September 17, 1985 another status conference was called. The Court determined that an evidentiary hearing was necessary; on September 30, 1985 it set the matter down for hearing on December 16, 1985 stating:
The Court will take evidence on the current state of overcrowding and idleness at the Medium Security Facility, including its protective custody population, and the Intake Service Center and the impact of said conditions on the basic housing, health, environmental and safety standards which the defendants are required to meet under the prior orders of the Court.

Findings of Fact
a) Overcrowding
In the main the defendants do not controvert the essential facts nor do their experts take significant issue with those of the plaintiffs.
The prison population in the country, according to the National Institute of Justice, increased 94% from 1975 to 1980, due to population growth and sentencing practices; and it is widely accepted that crowding in prisons and jails can have negative consequences, such as riots. Rhode Island has not been immune from this phenomenon as will be seen from the facts and figures hereinafter set forth. Each section of the prison involved in this action, i.e. Medium Security and the Intake Service Center, will be treated separately.
1. Medium Security
The Medium Security section has five dormitories and two cell blocks. It is conceded that there is no overcrowding in these cell blocks. Its rated or design capacity, exclusive of 36 cells, is 186 per the 1977 Order, as against its actual population of 224. Total population, including the 36 cells, is 260 inmates. The actual population 248 figure has varied as of certain dates: October 1, 1982 0907218; October 1, 1983 0907 243; *248 October 1, 1984 0907 247; October 1, 1985 0907 264. The briefs concede there is presently no appreciable variation from the 260 figure; the briefs were submitted in February 1986.
The rated or design capacity of the Medium facility, as set at the time of construction, was subsequently increased by the 1977 Order, for which the court relied on the American Public Health Association (APHA) standards which require 75 square feet of space for each inmate in a dormitory. Now, in 1986, the defendants are housing an even greater number of inmates in the same amount of space. This changing capacity is reflected in the following chart:

Rated

August 10 Population as 1977 Order of Oct. 1/85

Dormitories 0907

A Dorm (3424 sq. ft.)

38

45

43

B Dorm (3424 sq. ft.)

38

45

72

C Dorm (3424 sq. ft.)

38

45

49

D Dorm (2278 sq. ft.)

16

30

32

A Honor Dorm (1584 sq. ft.) 17

21

28

Total

147

186

224

Cellblocks 0907

CBS block (20 cells 42 sq. ft. each)
DCB block (16 cells 45 sq. ft. each)

20

20

16

16

Total

36

36

Grand Totals

222

260

In simplest terms, this all amounts to saying that Medium Security in B, C, D and A Honor dormitories has an overpopulation of 40 men in relation to the 1977 Order. When compared to the original rated capacity, the population has increased over 50 percent.
Conditions of overcrowding here are not as severe as in the Intake Service Center; however, the extra forty men do create problems, as described more fully below. Expert testimony at the hearing revealed that the growing population at Medium has had an adverse impact on maintenance, fire safety, and public health.
2. Intake Service Center (ISC)
The Intake Service Center holds only pre-trial detainees. It has 168 cells 0907 each having 71 square feet of space and designed to hold a single inmate. As indicated by the following table the Intake Center has been overpopulated for the past four years.

Date Rated Actual

10/1/82 168

183

10/1/83 168

244

10/1/84 168

317

10/1/85 168

331

11/1/85 168

347

12/1/85 168

282

Since 1983 the defendants have been double celling inmates, and commencing in July of 1985 triple celling occurred; however, the triple celling of inmates will not be discussed since the court enjoined such practice by its order of January 3, 1986.[4] As set forth by the plaintiffs in their brief, which I find entirely accurate, "[a]ccording to the defendants' records, during fiscal year 1983-84, there were 579 inmates at ISC who were detained more than 30 days and 298 inmates who were detained more than 60 days. (Pl.Ex. 15, Table 11). For fiscal year 1984-85, there were 645 inmates detained more than 30 days and 375 inmates detained more than 60 days (Pl.Ex. 15, Table 12). And on one unspecified day in October 1985, there were a total of 136 inmates who were listed on the 45-day roster, meaning they had been detained 45 days or longer (Pl.Ex. 14). It is inescapable that all or most of these long-time detainees were double-celled and that some of them were triple-celled."

On October 17, 1985, Patrick O. McManus, a corrections consultant, toured the ISC and found that one inmate 249 had been there 13 months, 3 or 4 inmates 6 or 7 months, and that a stay of 3 or 4 months *249 for an inmate was
not atypical. (Tr. I 0907 172). On that date all inmates were at least double-celled and some were triple-celled (Tr. I 0907 163). Mr. Sanger Powers, a corrections expert called by the defense, agreed that some people were in the ISC for inordinately long periods of time (Tr. III 0907 81), "some as long as 300-400 days with 100 days being not uncommon." (Tr. III 0907 81-6).

This unfortunate condition is exacerbated by the incredible confinement of the inmates and the restricted physical area outside the cells. The inmates are locked in their cells 19-20 hours a day, required to eat their meals in their cells, and released only into a day room so small that only half the inmates can be there at one time and with noise levels so high as to block out normal conversation. The recreation area accommodates only 10-12 inmates 0907 all others have to sit on a wall, steps or a picnic table in the area. Clearly, the nature of the ISC is such that it barely affords adequate space for 168 inmates, making double-celling particularly unacceptable.

The implications of overcrowding were described by the experts: it leads to tension and frustration; the potential is created for magnification of problems; small misunderstandings become large ones; retaliation becomes inevitable. Over the past three and one-half years, the rate of assaults at the ISC has increased; the level of inmate assaults on staff approximate one every two weeks. In addition, the plaintiffs' prison expert pointed out that the double-celling had a negative impact on classification because it prevented the proper separation of

certain kinds of prisoners. Thus, while in pretrial detention, dangerous criminals may be bunked with those simply unable to make bail.
Not only are the pretrial detainees double-celled in 71 square feet for 19-20 hours a day (providing them with little time out or space), but the conditions go further. Predictably, the overcrowding has also created numerous environmental health problems since the ISC was designed to house no more than 168 men. The ventilation, plumbing, noise levels, and food services are all being over-taxed with commensurate maintenance problems impacting on the general living conditions. The record shows that between January 18, 1983 and October 11, 1985, 108 health code violations were noted at the ISC, including: inadequate drainage resulting in standing pools of water in housing units; broken plumbing; ceiling holes; and numerous kitchen violations. It is even more disturbing to find that the overcrowding has created fire safety and fire evacuation problems resulting in the potential for loss of life. Finally, the plaintiffs' expert testified that the overcrowding has so overtaxed the plumbing as to cause physical deterioration and increase exposure to the transmission of infectious disease.
The current conditions cannot continue; they are unconstitutionally impermissible and will inevitably worsen if left unattended. The areas most seriously impacted by the overcrowding include programming and idleness, food services, the environmental health, medical and mental health services. I discuss each area separately below.
b) Programming and Idleness
In my August 10, 1977 opinion, I stated that, "... it is impossible to maintain safety, discipline and order unless a substantial portion of the population is constructively occupied, whether by work, education, vocational training or recreation. Idleness in the ACI is perhaps the central fact of existence for nearly all inmates in Medium and Maximum at nearly all hours of the day. It breeds boredom and a quest for excitement, and the defendants concede that it is a major cause of the violence which has plagued the institution for years." Palmigiano, supra, at 968. It is discouraging to find that virtually the same conditions still exist nine years later. Regrettably, I must conclude that the prison director, despite his other qualities, has proven woefully ineffectual in his ability to find meaningful work for the inmates. In both the ISC and Medium, overcrowding has aggravated the problem, and 250 there is nothing in this record *250 indicating that prison officials have even attempted to combat idleness.
A prison expert testified that Medium had "a high fairly pervasive level of idleness. .. It's almost like there's a drift, that there isn't a great deal of activity going on, that most people most of the time seem to be sort of hanging around their general living areas which for the most 0907 in the most cases are the dormitories ... in the course of really all three visits to medium security [in October and December 1985], with the exception of A honor dorm, there were a great many people simply in the living units without apparently any place to go or anything to do. For example, I remember in D dorm, which I think had 32 bunks in it, just in the dorm, I counted 22 of the inmates in the dorm at 10:45 in the morning, which would not normally be a time when you'd expect them to be in for count or lining up for meals." (Tr. I-148). As to the B dormitory which houses protective custody inmates, he said, "I had that impression (of idleness) definitely in B dormitory" (Tr. I-146). It is rightfully argued by the plaintiffs that the defendants' own data, a chart which they submitted to this Court with their May 15, 1985 compliance report, as part of a document entitled Correctional Industries Expansion Project, May 85 indicate that at Medium 40% of the inmates are unemployed, 44% do custodial work and 16% are in industries. But even this data is misleading; for example, on October 17, 1985, 20 inmates were assigned to the upholstery shop (Pl.Ex. 13) but only 10 people were in the room and of that number only "perhaps four or five of them appeared to be actively involved in working on an upholstery project." On the same day in the auto body shop which had 14 inmates assigned according to the job roster, only four or five inmates were working.
As a trial judge I feel obliged to detail more completely the facts supporting my conclusions of pervasive idleness and lack of meaningful job assignments. I dislike paraphrasing the succinct and accurate briefing of plaintiffs' counsel and therefore simply adopt and quote: "In October, 1985, there were 160 assigned jobs in Medium Security for a population of over 260 and 79 of these jobs were porter assignments (Stip. A.15). There were either 14 or 16 inmates assigned as porters just in B dormitory and Mr. McManus (the prison expert) could not visualize what 14 people would do in portering that particular dormitory. `It was clear and not totally out of line that for most of the inmates, their job maybe took an hour a day. The intent, I suppose, is to give them at least the

benefit of pay ... but in terms of their being meaningfully occupied for any significant portion of the day, it did not appear to be the case, and it would strike me as being extraordinary if they were' (Tr. I-147). When asked if the defendants were in compliance with that part of the Court order that required the defendants to maintain sufficient meaningful job opportunities for every prisoner, the expert responded: `Absolutely not' (Tr. I-150). He also testified that education was not a significant activity for very many inmates (Tr. I 215-16). Mr. Powers agreed that there was a need to upgrade education opportunities and to expand vocational training and industries (Tr. III 78-9).
"Mr. McManus also testified that the idleness he observed was clearly related to the overcrowding at Medium (Tr. I 211-12) and that idleness and difficult living situations, when put together, `are the two devils that seem to curse most correctional institutions when they're into an overcrowded situation' (Tr. I 153-54). Furthermore based upon what he was told by defendants' senior officials, there will be a reduction in industry jobs at Medium over the next 3 or 4 years during which time they will be building a new facility and the problem of idleness will get worse. (Tr. I 154-55)." Plaintiffs' Post Trial Brief pp. 18-19.
Idleness at the ISC is even worse. The plaintiffs' prison expert testified, "there is even less to do at the Intake Service Center in terms of inmate programs or jobs than there is at medium security facility" (Tr. I 173). The 251 record shows that almost all of *251 the jobs are as porters; for example, in September 1985 there were 82 assigned jobs, 57 of these were porters and, at the time, the population exceeded 300. This is indicative of the existing idleness, and it does not take an expert to warn us that it is a dangerous situation. To cope with this idleness by warehousing these men for 19-20 hours a day behind bars and within 71 square feet of space violates even a modest sense of decency; double celling some of them under these conditions I find to be intolerable.[5]
c) Food Facilities
The impact of overcrowding was dramatically evidenced at the Center Kitchen which is the main food preparation area for the entire Adult Correctional Institution. More than fifteen different serious violations were found, all attributable to lack of basic maintenance and to overcrowding, which taxes the food services and "has had a dramatic impact on maintenance." The environmental health expert testified that, "the conditions were clearly imminent danger [to public health] in that you had all the necessary conditions for occurrence and progression of food borne diseases in addition to potential loss of life, I stated at the time I was there that it ought to be closed." (Tr. I-68).
I will not set forth in detail these kitchen conditions which even the defendants agree violated "conditions of decency",[6] because all were remedied immediately after the plaintiffs' expert's visit. The Court quite intentionally capitalizes on this situation, however, to prove the need for constant monitoring. Here a serious health threatening condition was permitted to develop and fester. The plaintiffs' expert testified that the condition he viewed must have been of longstanding duration as evidenced by the extent of the rodent droppings and the serious capital improvement problems. Yet, the state's own inspector filed only one report in a three and one-half year period, and this report, prepared only one and one-half months (October 28, 1985) prior to the visit of the plaintiffs' expert, did not focus on any of the longstanding problems or even mention rat infestation. Nothing was done about the situation until this Court reactivated the master and an inspection was conducted; suddenly the prison authority was galvanized into action and the problem was corrected in a mere 30 days.
The same is true as to overcrowding. The problem has been mounting for years. For the past three years the Master has issued repeated warnings; and in May of 1984 the Governor's own Task Force on Overcrowding said "... prison overcrowding is becoming an increasingly alarming problem" (Pl. Ex. 5, p. 5). With the exception of a future plan to build a new medium security facility, nothing has been done to cope with current conditions. As for the ISC there are no plans even "down the road."

d) Environmental Health Problems
The record reveals a number of conditions posing serious environmental health problems in Medium Security. 252 These are set forth in detail in the margin.[7] The *252 situation at the ISC is even worse; the overcrowding has
impacted on ventilation, plumbing, noise levels and food services.[8]
e) Medical and Mental Health Services
253 Medical and mental health care have also suffered because of the overcrowding. In *253 summation, one of the experts, Dr. Frank Rundle, testified that there are "too many inmates [at the ACI] with too few staff to provide the services which are essential", and that the overcrowding exacerbates the ability to come into compliance with the standards of the 1977 Order. (Tr. II 40, 42-3). Even the defendants' expert, Mr. Richard Kiel, a medical care administrator, admitted that at least two areas of medical care delivery have been affected negatively due to overcrowding at the ACI 0907 physical examinations and transportation of inmates to community health care specialists (Tr. III 0907 47-8).
In the ISC there is a serious backlog of physical examinations, no tracking system to ensure that the examinations are eventually given, and a lack of many basic medical and health screening procedures 0907 all in violation of the standards set up by this Court in its 1977 Order. (Tr. II 0907 98; Tr. III 0907 47, 65-6, 99-100, Stipulation C. 3 & 4; Tr. III 0907 47, 99-100, 113-14; Tr. II 0907 109; Stipulation C. 8).
For example, no testing for tuberculosis is being performed as required by the APHA standards. This lack of a proper program for tuberculosis detection means that the intrainstitutional spread of tuberculosis can occur undetected for years. (Tr. II-101-03). This risk is augmented by the overcrowding at the facility.
254 *254 The record also establishes a lack of pharmaceutical and follow-up services. Inmates taking major psychotropic medications which require careful monitoring are not seen by a psychiatrist for months. Nor is there a record of those identified as psychotic or of those receiving these dangerous drugs. (Tr. II-17-19).
Many other medical deficiencies were testified to. In administration and quality assurance there is a lack of medical and mental health protocols. These protocols are necessary to provide nurses and lesser trained staff with basic guides for treatment and procedures. Also, the plaintiffs' expert found serious deficiencies in the administration of the one existing protocol 0907 the "red tag" or suicide protocol. From the testimony, the Court's impression was that of a loose organization that did not concern itself with necessary medical statistics, formalized tracking of chronically ill and psychotic patients, or data maintenance of inmates with infectious diseases. In short, there is no smoothly functioning health delivery system.
In addition, overcrowding at the ACI has had an adverse impact on the ability to transport inmates for specialist care in the community (Tr. III 0907 47-8, Tr. III 0907 100-01; Stip. C. 34, 37). No disaster plan exists, no recertification or periodic updates in cardiopulmonary resuscitation are being done and added to all this, there is a lack of essential emergency equipment. Furthermore, the testimony chronicles a tale of deficiencies relative to: 1) inpatient hospitalization for the severely disturbed; 2) internal and external audits to assure quality care; 3) access to sick call services; and 4) the number of physician hours on site.
The full-time dentist is so overwhelmed that he is considering quitting (Tr. II 0907 133). The ACI needs at least 60-70 hours per week of dental services instead of the 50 hours it is now receiving.
As the plaintiffs point out, there have been no increases in mental health staff for over three years. Consequently, there is insufficient psychiatric coverage and more psychologists are needed. Dr. Rundle recommended a fulltime psychiatrist and three additional psychologists in light of the present population (Tr. II 0907 38). The population is simply too large for the present staff.

Discussion
In response to the charges that overcrowding is causing serious problems at the prison, the defendants make a number of arguments. With reference to Medium Security, the thrust of their argument is that I should apply a 50 square foot allotment per inmate in the dormitories as this is the standard promulgated by the American Correctional Association (ACA). For several reasons this argument is misplaced: the 75 square feet standard is the law of the case, as will be argued infra, and the ACA standard allows only minimum security inmates to be housed in dormitories with a 50 square foot capacity in any single dormitory (Tr. I 0907 203).
As to the medical and mental health system at the ACI, the defendant claims that there is no evidence proving it causally related to overcrowding. However, the defense concedes the overcrowding has caused a backlog in examination of inmates by physicians and delays "in getting patients to outside service providers in nonemergency situations." The defense then simply states, "the administration cannot meet the mandates of the 1977 court order regarding administration of Medium Security until the planned new medium [facility] is completed."
The initial inquiry to be made requires a determination of whether or not there has been a sufficient change in circumstances to warrant a modification of the 1977 Order. The defendants claim that the situation has changed significantly from 1977 and that the original decree entered in this case should be modified accordingly.
The defendants advance a two-fold argument. First, the APHA standard, setting 75 square feet of space per inmate, is not the "more widely accepted standard"; the prevalent standard is that of the ACA which sets 50 255 square feet as the space to *255 be allotted each inmate. Using this standard, the Medium Security Dormitories properly house 280 inmates and with the 36 cells the total population capacity of Medium Security Section is properly 316 instead of 229. Second, they argue that the standards of decency are not being violated because Medium is a "clean building with a well motivated staff". As to health care, the defendants say that though it may be deficient there is no constitutional violation since the crowded conditions do not adversely impact on the deficiencies except for "the stretching of their physician hours and increased inability to properly record treatment and be assured of follow up treatment where necessary". The ultimate point the defendants make is that I should not refer to the 1977 Order but rather independently determine whether the conditions as they now exist meet constitutional standards.
I note, at the outset, that no appeal was taken from the 1977 judgment of this Court nor have the defendants filed motions to modify any of the existing orders. However, in the name of equity premised on changed living conditions for the better, i.e. the facilities are now clean, they ask that the Court relegate the 1977 Order to the past, emasculate it of all vitality, and consider the 1977 constitutional violations "attenuated to a shadow".
The answer is clearly found in Fortin v. Commissioner of Mass. Dept. of Public Welfare, 692 F.2d 790, 799 (1982)
In United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), the Supreme Court identified the conditions that warrant modification under Fed.R.Civ.P. 60(b)(5).
The inquiry for us is whether the changes [in conditions since the entry of the decree] are so important that dangers, once substantial, have become attenuated to a shadow.... Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.
It is true, as the Department argues, that changes in the law may satisfy this standard. See System Federation No. 91 v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368, 373, 5 L.Ed.2d 349 (1961). In the case before us, however, no change in the law has occurred, nor has any court interpreted the law underlying the decree in a manner different than the parties understood when they consented. The Department therefore requests in one breath that the law be re-interpreted and the decree modified because "it is no longer equitable that the judgment should have prospective application" under rule 60(b)(5). This technique, however, would transform the modification procedure into an impermissible avenue of collateral attack on the interpretation to which the

parties consented. See Ackermann v. United States, 340 U.S. 193, 198 71 S.Ct. 209, 211, 95 L.Ed. 207 (1950) (modification is not a substitute for appeal); Swift, 286 U.S. at 119, 52 S.Ct. at 464 (court may not reconsider propriety of decree as framed); Coalition of Black Leadership v. Cianci, 570 F.2d 12, 16 (1st Cir.1978) (rule 60(b)(5) cannot be used to vacate a decree when the legal interpretation on which it was based has not been directly overruled; proper course would have been to withhold consent and appeal any adverse judgment). Because no change was alleged, the district court properly denied the Department's motion for modification.

This matter has been in litigation for nine years; there have been innumerable conferences and hearings followed by court orders and yet the defendants are not in compliance. As stated in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)

The question before the trial court was whether past constitutional violations had been remedied.

256

The court was entitled to consider the severity of those *256 violations in assessing the

constitutionality of conditions in the isolation cells.

* * * * * *

We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment.

In fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each element contributing to the violation.... If petitioners had fully complied with the court's earlier orders, the present time limit might well have been unnecessary. But taken the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.

Id. 687, 98 S.Ct. at 2571 (footnotes omitted).

Finally, the exercise of discretion in this case is entitled to special deference because of the trial
judge's years of experience with the problem at hand and his recognition of the limits on a federal court's authority in a case of this kind. Id. 688, 98 S.Ct. at 2572 (footnotes omitted).[9]

The prior judgment by this Court is the law of the case for the purposes of this compliance hearing. Quern v. Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139, 1148, 59 L.Ed.2d 358 (1979). There is no reason to reconsider that judgment absent new evidence, a change in controlling law or the need to reconsider to prevent clear error or manifest injustice. 18 Wright and Miller, Federal Practice and Procedure sec. 4478, p. 790 (1981).

Of course, if an Appellate or Supreme Court decision appears directly overruling or unreconciliable with this Court's prior opinion, then the law of the case doctrine must give way. That is not the case here. And as stated in 18 Wright and Miller, Federal Practice and Procedure sec. 4418, "Once final judgment has been entered as to part of the action, failure to appeal should establish a sound foundation for issue preclusion as to the balance of the action."

Rhodes v. Chapman, supra, and Bell v. Woolfish, supra, do not change the controlling law governing the constitutionality of treatment of sentenced inmates and pre-trial detainees. The specific relevancy of Rhodes and Bell centers on that aspect of the 1977 Order establishing the minimum square footage of living space each inmate must have which today is violated by double celling. In Bell the Supreme Court did not say that double celling per se was not unconstitutional nor did it say that due process is never violated by double celling pre-trial detainees when such procedures result from compelling necessities of jail administration. The Court did say, "In evaluating the constitutionality of conditions or restrictions of pre-trial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee." 99 S.Ct. at 1872.

In Rhodes, the Supreme Court discussed the standard for determining whether conditions of confinement violated the rights of sentenced prisoners under the Eighth Amendment. While in Rhodes the Court found that double celling of inmates did not violate their constitutional rights, the case must be read in the context of its

particular facts. The Court did not alter Eighth Amendment analysis. Totality of conditions can still have a 257 cumulative unconstitutional effect; if they did not in Rhodes it *257 was because only jobs and educational
opportunities had been marginally diminished.
Courts certainly have a responsibility to scrutinize claims of cruel and unusual confinement, and conditions in a number of prisons, especially older ones, have justly been described as "deplorable" and "sordid." Bell v. Wolfish, supra, [441 U.S.] at 562, 99 S.Ct., at 1886. When conditions of confinement amount to cruel and unusual punishment, "federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S.Ct. 1800, 1807-1808, 40 L.Ed.2d 224 (1974); see Cruz v. Beto, 405 U.S. 319, 320, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). 452 U.S. at 352, 101 S.Ct. at 2402.
I, therefore, conclude that the 1977 Order finding an Eighth Amendment violation based on the totality of the conditions remains consistent with these subsequent Supreme Court cases. Consequently, the Palmigiano opinion and the specifics of the 1977 Order are still the law of the case and require the defendants' continuing compliance, especially absent the defendants' petition for a lifting of that order. Further, the defendants' continual failure to abide by the terms of that order and egregious if intermittent noncompliance with basic health standards, e.g., the situation at the central kitchen facility, without constant, watchful monitoring raises serious questions in my mind as to whether they should yet be released from the dictates of the order.
Were I to treat the situation before me now as a new case, however, I would still reach the same result. Under the new case law, to be unconstitutional the double celling and overcrowding must impact on the basic health and safety of the inmates so as to constitute cruel and unusual punishment in violation of the Eighth Amendment. The totality of the conditions at the ISC must be viewed from this perspective.
It is easy to appreciate why in Bell double bunking did not constitute punishment and thereby violate the due process clause. As the plaintiffs so aptly point out, "[t]he rooms [in Bell] were 75 square feet and radiated from a large central 20-story multipurpose or common room to which each inmate had free access approximately 16 hours a day. And of the 398 rooms in the facility, never more than 35 were rooms in which pre-trial detainees were double bunked. 441 U.S. at 525, 99 S.Ct. at 1866. There was no evidence of any impact on basic health and safety and most inmates were detained for very short periods of time." This is dramatically different from the instant conditions; here triple celling existed for a while, inmates are confined for 20 hours a day, the environmental support system is inadequate, and most seriously the medical and mental health care is grossly inadequate; all as has been described.[10]
I have already stated why the Rhodes case must be read in the context of its particular facts. The facts here are significantly different because of the serious health and safety impact which has been detailed. The situation here is not merely one of pure numbers. I do not look at the overcrowding in a vacuum. The experts chronicled the problems of extensive confinement: high levels of frustration and irritation, increased assaults, high levels of idleness, serious environmental, health and maintenance problems, overextended staff, and dangerous mental and medical health practices, all of which were linked to and exacerbated by the overcrowding.
258 *258 The record shows that for nine years this Court has employed all the artifices it could conceive to have the defendants cure the many constitutional violations it found. I have been imperious, didactic, and supplicatory; I have cajoled and waited as though for Godot. I have ever been reluctant to interfere with the operation of the prison. However, the pattern is always the same: without monitoring, prison officials permitted the kitchen to get into a deplorable state; accepting Dr. King's testimony, which I do, they failed to provide adequate medical staff for an increase in population of which they have been aware for years; indeed, repeated warnings from the Special Master have been in vain. As Dr. King pointed out, even in the areas that could easily have been corrected, nothing has been done, e.g., tuberculosis is a very serious concern in prisons, yet, the detection and prevention program is woefully inadequate. The veritable fortune that has been poured into that institution will all be for naught if positive firm steps are not immediately invoked.
The overcrowding must be confronted before it becomes uncontrollable. A delay under the present conditions can give rise to problems of staggering magnitude not the least of which could be serious riots and/or a medical epidemic.

To preserve the integrity of my prior orders and prevent ongoing constitutional deprivations to the plaintiff class it is hereby
Ordered
A. Overcrowding
Court imposed limitations on population are commonplace in prison and jail conditions cases. See, Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976) (60 square feet per inmate for all Alabama prisoners required); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983) (two stage reduction in population ordered at Michigan City, Indiana prison); Ruiz v. Estelle, 679 F.2d 1115, supra (triple-celling in all Texas prisons prohibited; double-celling claim remanded for additional findings); Benjamin v. Malcolm, 564 F.Supp. 668 (S.D.N.Y.1983) (emphasis added) (denying motion to modify population limit; "an institution's ability to deliver essential services is critical in determining whether the institution is or would be unconstitutionally overcrowded at a given level of population"); Inmates of Allegheny County v. Wecht, 565 F.Supp. 1278 (W.D.Pa.1983), aff'd in rel. part, 754 F.2d 120 (3rd Cir.1985) (population limits imposed; motion to modify limit denied); Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982) (double-celling banned in certain units at Tennessee State Penitentiary; "overcrowding is a primary source of all the most serious problems.... the only effective remedy is to reduce the prison's population..."); Leeds v. Watson, 630 F.2d 674 (9th Cir.1980) (cap on jail population to halt ongoing constitutional violations); Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.1984).
1. Medium Security.
The defendants will come into compliance with paragraph 4.(a)(9) of the August 10, 1977 Order within ninety days, and I enjoin the defendants from exceeding the following population limits for the respective dormitories:

A Dorm

45

B Dorm

45

C Dorm

45

D Dorm

30

A Honor Dorm

21

___

Total

186

Together with the 36 cells in CBS and DCB cellblocks, which are required to be single occupancy, this places a population limit of 222 inmates, some 40 inmates above the design capacity.

2. The Intake Service Center.

The defendants will reduce the population at the ISC to 168, the design capacity, within six months. In the event the defendants do not reduce the population sufficiently within that time, they are enjoined from accepting any 259 new inmates unless the population is below that population cap. *259 See Campbell v. McGruder, C.A. No. 75-1668 (D.C.D.C. 8/22/85) (stipulation reducing population with provision for automatic reinstatement of Court's July 13, 1985 order enjoining further intake if stipulated population reductions are exceeded for 48 hours); Grubbs v. Bradley, C.A. No. 80-3404 (M.D.Tenn. 10/25/85) (order enjoining the admission of any new or additional prisoners into state prison system except under special circumstances until population is reduced to designated capacity). See also Pugh v. Locke, supra, at 322 (reference to earlier 8/29/75 order enjoining any new admissions to state prison system until the population at each institution was reduced to design capacity).

B. Programming and Idleness.
At Medium Security, the defendants will come into compliance with paragraph 5 of the August 10, 1977 Order by establishing sufficient educational, vocational and meaningful job opportunities for every inmate within one hundred and twenty days. At the Intake Service Center, the defendants are ordered to come into compliance within one hundred and twenty days with paragraph 2.(c) of the August 10, 1977 Order as amended, by providing meaningful programming for every inmate whose stay at the detention facility exceeds forty-five days.
C. Environmental Health and Safety.
The defendants will develop a specific plan to bring themselves into compliance with paragraph 4, of the August 10, 1977 Order and to address and ensure adequacy in all aspects of the following environmental health and safety areas: staff and inmate worker training in the food service area; staff supervision; food storage, transportation and preparation; dishwashing procedures and maintenance of safe temperatures; record keeping and written policies and procedures; proper feeding of inmates in all satellite feeding operations; appropriate upkeep and cleaning of equipment and facilities; ventilation; lighting; plumbing and sanitary facilities; electrical; fire safety; general sanitation; vermin control; bedding, laundry and general preventative institutional maintenance.
D. Medical and Mental Health Care.
The defendants will develop a specific plan to bring themselves into compliance with paragraphs 6. and 7. of the August 10, 1977 Order and to address needs and ensure adequacy in, inter alia, the following medical and mental health care areas: physician, dental, mental health, pharmacy, clerical and physician's assistant coverage; emergency care including equipment; training of medical staff and correctional officer staff in cardiopulmonary resuscitation; development of policies, procedures and protocols, data collection and tracking systems; pharmacy monitoring of medications; medical and mental health admission screening; provision of intake and routine physical examinations; referrals for specialist care; housing, assessment, and treatment of mentally disturbed and suicidal inmates; and a sick call system and follow-up procedures to ensure routine and follow-up access to medical care.
The plan will be filed with the Court, with a copy to plaintiff's counsel, within sixty days.
E. Monitoring Compliance
Commencing three months after the Court order, the Special Master shall conduct quarterly inspections and prepare reports indicating the defendants' compliance with each provision of the remedial order and defendants' plans and such reports shall be provided to the Court and the parties. In conducting his inspections, the Special Master shall retain the services of experts in the fields of corrections, environmental health, medical and mental health care to assist him, as appropriate, in evaluating compliance. These inspections shall continue until further order of the Court.
Experience with the many orders that have been issued in the course of this case prompts me to note realistically 260 that the Court is prepared to entertain a defendants' *260 motion for modification of the mandated compliance
time as to any portion of this order.
As to the section of the order concerning overcrowding in the ISC (section A.2), while a population cap of 168 inmates has been imposed, the Court is not inflexible on this point. This Court is prepared to entertain a motion from the defendants requesting a reasonable adjustment as to total housing capacity.
If defendants seek such a modification, a motion must be filed within 10 days of the date of this order; absent such a motion, this order, as presently framed, will be in full force and effect.

[1] Palmigiano v. Garrahy, 443 F.Supp. 956; No Appeal was taken.
[2] The provisions of the entire order which are now being considered are:
* * * * * *
2.(b) defendants shall house pre-trial detainees in facilities which comply with the minimum standards set forth hereafter in paragraph 4, and detainees shall not be housed in dormitories;
(c) defendants, within three months from the entry of this order, shall provide each awaiting trial detainee with recreational programs, and shall make available as soon as possible access, on a voluntary basis, to constructive work opportunities, to educational programs and to treatment programs which deal with problems associated with drug addiction, alcoholism, mental illness and physical illness or disabilities.
* * * * * *
4.(a) Defendants shall within nine months from the entry of this order, bring each building and facility under their control, particularly but not limited to the housing and food service areas of said buildings and facilities, into compliance with the minimum standards of the United States Public Health Service, the American Public Health Association, and the Department of Health, State of Rhode Island. ... Implementation of this paragraph 4(a) shall include, but not be limited to, the following:
(1) all facilities shall be adequately heated, lighted and ventilated. Windows and window panes shall be properly maintained and replaced when broken;
(2) each prisoner shall have access to household cleaning implements and supplies;
(3) a regular and effective program of insect and rodent control shall be undertaken;
(4) food shall be stored, prepared and served under sanitary conditions which meet minimum public health standards. Equipment shall be maintained in good working order. Kitchen employees and prisoners shall be adequately trained and supervised;
(5) all trash and debris shall be regularly removed from hallways, cellblocks, corridors and other common areas and trash and debris shall in no circumstances be stored or accumulated in vacant cells;
(6) all toilets, showers and wash basins shall be properly maintained and kept in good repair. Every cell shall be equipped with a working toilet that flushes from inside the cell and with a wash basin with hot and cold running water;
(7) no more than one prisoner shall be confined in any cell which is less than 60 square feet;
(8) every prisoner shall be provided with a clean mattress, which meets with federal fire safety standards, and with clean bed linens, towels and soap;
(9) each convicted prisoner housed in a dormitory shall have at least seventy-five square feet of personal living space and only those prisoners who have been classified as minimum [or Medium] Security shall be housed in dormitories; (Amended by Order, March 29, 1978).
(10) each dormitory shall be equipped with at least one toilet to every 15 prisoners; one urinal or one foot of urinal trough to every 15 prisoners, one shower to every 15 prisoners and one sink to every 10 prisoners. Toilets and urinals shall be kept reasonably clean and in good working order.
* * * * * *
5.(e) In order to implement the reclassification process, defendants shall:
1. establish adult basic education programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in these programs on a regular basis;

2. establish pre-vocational (including remedial education) and vocational training programs, designed to enhance marketable skills, with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;
3. establish recreational and avocational programs with sufficient resources and staff so that every prisoner in the Rhode Island prison system shall have the opportunity to participate in said programs on a regular basis;
4. develop college extension programs so that they are available to prisoners at every Rhode Island prison facility;
5. create sufficient meaningful job opportunities so that every prisoner in the Rhode Island prison system shall have the opportunity to work and every prisoner who works at a job provided by the defendants shall be compensated for all work performed;
* * * * * *
6. Defendants shall hire an adequate number of mental health professionals to diagnose, treat and care for those prisoners who have mental health problems.
7. Defendants shall within six months from the entry of this order bring the health care delivery system into compliance with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Helath, State of Rhode Island.
* * * * * *
9. Defendants shall within nine months of the entry of this order house all protective custody prisoners in accordance with the standards set forth for the general prisoner population in paragraph 4., and make available to protective custody prisoners the equivalent of the educational, vocational, recreational, avocational, job, transitional and community-based facility opportunities set forth in paragraph 5.
[3] January 25, 1984, the Court entered a comprehensive order which inter alia detailed the progress made by the defendants in complying with the Court's remedial decree of August 10, 1977 and which set forth certain further compliance requirements and reporting and compliance deadlines. The defendants have continued their compliance efforts since January 25, 1984 and have periodically reported on same to the Court and to the plaintiffs.
On September 25, 1984, a status conference was held in chambers at which time the defendants and plaintiffs reported on the status of renovations at the Old Maximum Security facility and where the Court also had the benefit of the views of the plaintiffs' environmental health expert, as well as several of defendants' experts and the plaintiffs' expert, Theodore Gordon, has now filed with the Court a written report of his inspection of the Maximum Security facility.
At the September 25, 1984 status conference, the defendants also made oral motions to amend existing compliance and reporting deadlines, which motions were not opposed by the plaintiffs, and which the Court will grant in light of the substantial compliance efforts made by the defendants.
The Court believes it is now appropriate to incorporate all the existing remedial requirements for compliance with the August 10, 1977 order into one new order and the parties have agreed to its terms at the status conference.
It is the order, judgment and decree of this Court that:
1. The defendants' motion to extend their time to complete the renovations at the old Maximum Security facility to June 1, 1985 and to thereafter continue to use the facility for the housing of prisoners indefinitely so long as they maintain that facility in compliance with the minimum standards set forth in the August 10, 1977 order, is granted provided, however, that the defendants incorporate in their renovation and operating plans for this facility the recommendations of the environmental health expert with respect to kitchen waste disposal, kitchen ventilation, food service staff training and general preventative maintenance. Furthermore, the June 1, 1985 deadline for the

completion of renovations will not apply to the Industries Building. A report detailing the status of these renovations shall be filed with the Court and plaintiffs by July 1, 1985.
2. The defendants shall be required to carry out the following other specific tasks to comply fully with the August 10, 1977 order:
a. Provide meaningful programming for pre-trial detainees in the Intake Services Center, especially for those whose stay at the detention facility exceeds 45 days by July 1, 1985;
b. Provide meaningful vocational programming opportunities in each facility of the ACI by July 1, 1985;
c. Increase industrial programming throughout the ACI, particularly in the High Security Center, Maximum Security and Medium Security by July 1, 1985;
d. Expand mental health and medical services to keep pace with population increases;
e. Reduce the number of protection custody prisoners in B-Dormitory in Medium Security or develop other protective custody housing and increase the number of jobs available for protective custody prisoners by July 1, 1985.
f. Reduce the number of prisoners in Medium Security or begin planning to increase the availability of mediumcustody bedspace at the ACI through conversion or construction by July 1, 1985.
3. By November 15, 1984, the defendants shall provide the Court and plaintiffs with a formal report which details all plans, either in place or prospective, together with funding sources for the accomplishment of the tasks set forth in paragraph 2, above. In addition, the defendants shall provide the Court and plaintiffs with formal progress reports on accomplishing these tasks on February 15, 1985, May 15, 1985 and August 1, 1985.
[4] At the evidentiary hearing, all of the experts, both plaintiffs' and defendants', agreed that triple celling was totally unacceptable in the ISC. The experts described 71 square foot cells containing a double bunk, a third mattress on the floor, an open toilet, and a desk. To go to the toilet, a pretrial detainee had no choice but to step on the mattress or the inmate, as almost all usable floor space was occupied. The problems with respect to hours of confinement, frustration, idleness, and environmental, maintenance and health impact that are discussed below as to double celling are, of course, equally applicable with respect to triple celling and formed the basis for my January order.
[5] Even the less stringent American Correctional Association (ACA) standards which the defendants seek to apply in this case require that each inmate be allotted 80 square feet of space when he spends more than 10 hours in a cell.
[6] Despite my representation in the text, I will briefly list some of the kitchen conditions discovered by Mr. Theodore Gordon because they illustrate the degree to which the defendants' neglect has extended (both because of overcrowding and the absence of constant court monitoring): extensive infestation of rats, cockroaches and silverfish; the explosion of 25 to 30 cases of canned goods because of poor storage practices; cans swollen with bacteria with the potential for botulism; roof leakage; clogged drains causing water overflows; unclean can openers and ovens; evidence of rotten garbage and food spillage; a deer carcass hanging in freezer over a large puddle of blood and a half-inch thick pile of rat droppings; plywood refrigerator doors gnawed by rats; unsafe conduit lines and exposed wires.
[7] Although conditions in Medium have certainly improved since 1977, there are still serious environmental health problems in the facility, most of them directly attributable to the overcrowding in the dormitories (Tr. I-21). Between January 18, 1983 and October 11, 1985, Daniel Connery, the defendants' Environmental Health Officer, noted 115 problems needing correction at Medium Security including such problems as disconnected fire alarms, steam leaks in the boiler room, missing electrical box covers, rotted food, broken plumbing and missing ceiling panels (Stip. B.1). Of the 11 fire safety inspection reports at Medium between December 20, 1983 and October 4, 1985, 9 reported conditions such as fire doors which did not close, painted heat detectors and pull stations out of order (Stip. B.2). Mr. Theodore James Gordon, the plaintiffs' environmental health and safety expert, testified that based upon his inspection of Medium and the above history of inspection reports, the growing population at

Medium had had an adverse impact on maintenance and public health and that Mr. Connery advised him that he needed additional maintenance staff because "maintenance problems increased commensurate with population increases" (Tr. I-34).
Among the environmental health problems found by Mr. Gordon at Medium during his November and December 1985 tours were:
a. the satellite kitchen's automatic dishwasher was not functioning properly as it did not reach appropriate temperatures for the sanitization of common eating and drinking utensils (Tr. I-11);
b. there was an accumulation of grease in the vent system over the cooking vats, pots and grills (Tr. I-12);
c. there were mice droppings in the food storage area (Tr. I-12);
d. although he visited and took light readings on a bright, sunny day, none of the dormitories had adequate lighting and they were all substantially below standard (Tr. I-17);
e. there is no mechanical ventilation for adequate air exchange other than opening windows in the dormitories and the more crowded the dormitory, the more serious the ventilation problem (Tr. I-14, 18-19);
f. there is a serious fire safety problem because of the time involved in getting the key to the second means of egress and the overall time taken to evacuate is too great to prevent loss of life (Tr. I-15-16);
g. the dormitory showers created pools of standing water on the floors which is a safety hazard and they are improperly ventilated, which has created mold growth and scaling paint (Tr. I-17-18);
h. the ventilation and plumbing problems were most serious in B dormitory, which is the most crowded dorm; the density of smoke was like a fog (Tr. I-20-1);
i. A Honor dorm, the smallest in area, had unclean bathrooms and various public health and fire safety problems because of the number of people confined in the small space (Tr. I-26-8);
j. cellblock South had filthy showers and wholly inadequate ventilation and lighting (Tr. I-30-1); and,
k. D Cellblock had a non-functioning ventilation system resulting in very cold temperatures, and a large hole in the shower ceiling (Tr. I-72-3).
The defendants' environmental expert, Mr. Curtis Golden, found inadequate temperatures in the dorms (Tr. III-6), inadequate lighting in the cellblocks and the dorms (Tr. III-7-8), an insufficient number of showers for the population in B dorm (Tr. III-8), fire safety and evacuation problems (Tr. III-9), and a ventilation problem caused by the crowding (Tr. III-10). (See also Mr. Golden's summary of problems in Medium at Tr. III-29).
Mr. Gordon concluded by stating that the defendants were not in compliance with the court order with respect to public health issues (Tr. I-55).
[8] The following excerpt from the plaintiffs' brief comports with the record and is entirely accurate.
Between January 18, 1983 and October 11, 1985, Daniel W. Connery, the defendants' Environmental Health Officer, noted 108 health code violations at the ISC, including inadequate drainage resulting in standing pools of water in housing units, broken plumbing, ceiling holes, inadequate kitchen ventilation, uncovered trash in the kitchen and improper food storage on the floor over weekends and holidays (Stip. B.3).
In his September 19, 1985 ISC Food Service Inspection Report, in which Daniel W. Connery found 32 violations of the Health Code, Connery set forth an addendum to his report which said: "This food service operation was never designed for the type and amount of service it is being asked to perform. Unless the proper type and amount of equipment is provided, then the problems can only continue" (Stip. B.4).
Of the eleven fire safety inspection reports dated between 12/20/83 and 10/4/85, nine reported unsatisfactory conditions at the ISC, such as pull stations and smoke detectors which didn't work and alarm systems which only rang once (Stip. B.5).

Plaintiffs' expert, Mr. Gordon, testified that the overcrowding at the ISC had created fire safety and fire evacuation problems imposing the potential for loss of life (Tr. I-41-2, 136); had overtaxed the plumbing by imposing a stress that is causing physical deterioration (Tr. I-42); increased the exposure to the transmission of infectious disease (Tr. I-137); and generally overtaxed the defendants' ability to perform routine maintenance (Tr. I-39-41).
Among the specific environmental health problems found by Mr. Gordon during his November and December 1985 tours were:
a. the defendants maintain no morbidity records for infectious disease which is a violation of all health codes and standards (Tr. I-45-6, 135);
b. the medical isolation cells in the infirmary had no functioning ventilation system to prevent the movement of infectious disease producing organisms out into other areas of the medical unit (Tr. I-44-5);
c. The medical isolation cells were not clean, had a very stagnant musty odor, and contained ceilings that were substandard because they did not have a smooth surface which could properly be cleaned and disinfected (Tr. I-45);
d. there was physical deterioration in the housing ceiling areas as a result of leaking waste water from heating and air-conditioning units (Tr. I-39-40);
e. the showers were leaking in all housing units and stagnant water was forming pools as well as draining towards individual cells (Tr. I-40);
f. ventilation system vents in some cells and in shower and toilet areas were clogged with dirt as a result of lack of maintenance thereby impeding air movement (Tr. I-41);
g. the satellite kitchen's dishwashing machine was not functioning properly in that it did not meet minimum temperature requirements for sanitizing common eating and drinking utensils (Tr. I-43);
h. the area surrounding the dishwasher was in a state of disrepair and there was standing pooling water (Tr. I-43);
i. there were holes in the kitchen floor with puddling of water that gave off an odor of rotten garbage resulting from bacteria decomposition of the stagnant water (Tr. I-43);
j. the kitchen had a false ceiling and not a smooth impervious surface, making it unable to be cleaned on a routine basis, which is in violation of United States Public Health Service and APHA standards (Tr. I-43-4); and,
k. the increased population had created a fire evacuation problem in that prisoners could not be evacuated in the time required by life safety code standards (Tr. I-127-9).
Mr. Golden testified that the ISC kitchen had an impermissible ceiling (Tr. III-12), that the dishwasher did not heat properly (Tr. III-2), that there were wastewater cross-connections in the kitchen (Tr. III-12), there were uncovered garbage cans (Tr. III-12), there was peeling ceiling paint in the dayroom areas (Tr. III-14), there was inadequate lighting in the cells (Tr. III-14), there was flooding around the shower areas (Tr. III-14), there were unventilated isolation cells in the infirmary (Tr. III-14), that inmates complained of the cold (Tr. III-22), and that there were fire evacuation problems caused by the overcrowding (Tr. III-27). He summarized the serious public health problems he found throughout the facility (Tr. III-29-32) and stated that nothing ameliorated the effects of double celling at the ISC (Tr. III-20).
Mr. Gordon testified that either double-celling or triple-celling at the ISC created public health hazards with a potential for loss of life (Tr. I-53-4) and concluded by saying that the defendants were not in compliance with the court order with respect to public health issues (Tr. I-55).
[9] For other Circuit Court authority following these principles see Roberts v. St. Regis Paper Co., 653 F.2d 166, 174 (5th Cir.1981); Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 813 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969); Mayberry v. Maroney, 558 F.2d 1159 (3rd Cir.1977); United

States v. Work Wear Corp., 602 F.2d 110, 113 n. 6 (6th Cir.1979); Holiday Inns, Inc. v. Holiday Inn, 645 F.2d 239, 240 (4th Cir.), cert. denied, 454 U.S. 1053, 102 S.Ct. 597, 70 L.Ed.2d 588 (1981) Duran v. Elrod, 713 F.2d 292, 296-97 (7th Cir.1983), cert. denied, sub nom, Elrod v. Duran, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984); EEOC v. Safeway Stores, Inc., 611 F.2d 795-800 (10th Cir.1979).
[10] Since Bell and Rhodes, relief has been granted in prison cases by a number of federal courts. See Toussaint v. Yockey, 722 F.2d 1490 (9th Cir.1984); Ruiz v. Estelle, 679 F.2d 1115, mod. 688 F.2d 266 (5th Cir.1982); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983); French v. Owens, 538 F.Supp. 910 (S.D.Ind.1982), aff'd in pertinent part, 777 F.2d 1250 (7th Cir.1985); Martino v. Carey, 563 F.Supp. 984 (D.Ore.1983); Fischer v. Winter, 564 F.Supp. 281 (N.D.Cal. 1983); Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984); Monmouth City Correctional Inst. Inmates v. Lanzaro, 595 F.Supp. 1417 (D.N.J. 1984); Grubbs v. Bradley, 552 F.Supp. 1052 (M.D.Tenn.1982); Vazquez v. Gray, 523 F.Supp. 1359 (S.D.N.Y.1981), and Ramos v. Lamm, 520 F.Supp. 1059 (D.Col.1981), on remand from 639 F.2d 559 (10th Cir.1980).
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 700 F.Supp. 1180 (1988)
Nicholas A. PALMIGIANO, et al., v.
Edward DiPRETE, et al. Thomas R. ROSS, et al.
v. Edward DiPRETE, et al.
Civ. A. Nos. 74-172 P, 75-032 P.
United States District Court, D. Rhode Island.
October 21, 1988.
11812 *1181 *1182 Alvin Bronstein, Mark J. Lopez, National Prison Project, ACLU, Washington, D.C., for plaintiffs.
George M. Cappello, Legal Counsel, R.I. Dept. of Corrections, Cranston, R.I., David Dugan, Asst. Atty. Gen., State of R.I., Providence, R.I., for defendants.
OPINION AND ORDER
PETTINE, Senior District Judge.
Once again this Court is called upon to rule in order to ensure that its eleven year effort to bring the conditions of confinement at the Rhode Island Adult Correctional Institutions (ACI) into compliance with constitutional requirements is not derailed by institutional indifference and bureaucratic handwringing. The specific issue now raised by plaintiffs is whether defendants should be held in civil contempt of various orders entered by this Court establishing the precise circumstances under which pre-trial detainees are to be held in the ACI's Intake Service Center (ISC). In deciding here to exercise its broad power of contempt, this Court has finally, regretfully, reached the end of its Job-like patience with the State's inability, over more than a decade, to accomplish the agreed upon changes within established time frames.
I. PRIOR PROCEEDINGS REGARDING THE INTAKE SERVICE CENTER
A. The 1977 Order
The latest development in what this Court has previously termed "an endless stream of motions and hearings"[1] derives from the remedial order originally issued on August 10, 1977 (the 1977 Order) in a consolidated class 1183 action in which it was proven that the conditions of confinement *1183 in the ACI were unconstitutional.[2] In issuing the 1977 Order, this Court directed sharp criticism at the Department of Corrections' handling of pre-trial detainees. Although not convicted of any crime and often held because of an inability to meet even very low bail, pre-trial detainees were mingled randomly with the most hardened sentenced offenders in the then Maximum Security Facility and were, as a result, frequent victims of the violence and fear that permeated the institution. In addition pre-trial detainees received few of the services normally incident to their situation, such as access to attorneys, mental health screening, or rehabilitative counseling and services. Indeed detainees were even forbidden from participating in any of the educational, vocational or work programs that did exist at the ACI and were thus consigned to idleness for the duration of their detention. This Court summarized the sorry plight of pretrial detainees in 1977 in the strongest of terms:
The conclusion is inescapable that pre-trial inmates are not provided minimally adequate protection against assault, that they are exposed to punishment even worse than that endured by

other inmates, and that they are incarcerated under conditions far harsher than anything necessary to guarantee their presence at trial.
Palmigiano v. Garrahy, 443 F.Supp. at 971.
To alleviate the fear and suffering of pre-trial detainees, the 1977 Order required the State to remove all such persons from the existing Maximum Security Facility within three months and to house them separately thereafter, with no subsequent intermingling or contact between detainees and sentenced prisoners. The defendants were further ordered to provide pre-trial detainees with relief from the general squalor besetting the prison, housing them in facilities which complied with certain minimum standards with regard to heating, lighting, ventilation, cleanliness, pest control, food service, sanitation and space. Included among these physical conditions requirements was the order, motivated by the Court's concerns for the physical safety of pre-trial detainees, that such persons never be housed in dormitories. Finally, the defendants were ordered to provide detainees with recreational programs, constructive work opportunities, educational opportunities and treatment programs for drug addiction, alcoholism, mental illness and physical illness or disabilities. See generally id. at 986-87. No appeal was ever taken by defendants from any of these requirements.
B. The Emergence of Overcrowding at the ISC
Despite the explicit terms of the 1977 Order and the three-month timetable that it announced, it was not until five years later, in July 1982, that the State succeeded in achieving full compliance with the Order's requirements for the housing of pre-trial detainees. With the opening of the ISC in 1982, however, detainees were at last no longer intermingled with sentenced offenders and the constitutionally required physical conditions imposed by the 1977 Order were momentarily met. Nevertheless old problems persisted and new problems loomed. In a "final report" on compliance with the 1977 Order issued on October 20, 1983, the Special Master appointed by the Court to monitor the ACI noted that adequate programming was still not being provided in the ISC for pre-trial detainees. As troubling was the Special Master's report of overcrowding in the newly opened facility. On the day it was first occupied, one hundred of the ISC's 168 single occupancy cells were already fitted with double bunks, and the facility's population consistently topped 200. At the time of the Special Master's report, nearly 250 detainees were being held in the ISC, and all concerned conceded that the magnitude of the overcrowding problem would only continue to grow.
1184 *1184 Clearly defendants knew as early as 1983 that serious overcrowding was endemic at the ISC and that aggressive steps must be taken to avert a crisis in the not too distant future. Yet despite the Special Master's explicit warning, defendants have repeatedly failed to be proactive about solving the problem. Instead the State has fallen into a frustrating pattern of doing too little too late, and then only after prodding by this Court. On January 25, 1984, for example, the Court found that defendants were still not in compliance with the programming requirements of the 1977 Order and ordered them to provide meaningful programming at the ISC, especially for those detained more than 45 days, and to expand mental and physical health services to keep pace with population increases, all to be accomplished by July 1, 1985. In addition, defendants were explicitly directed to address the overcrowding problem. Four months later, then Governor J. Joseph Garrahy, cognizant of the growing problems of the state's corrections program, appointed the Governor's Task Force on Prison Overcrowding to study the situation. Although the Task Force eventually recommended reducing the prison population through a broad range of reforms that touched upon every aspect of the criminal justice system, from bail to parole, the State acted to adopt fully only one of the Task Force's recommendations[3] and took no steps to deal effectively with overcrowding at the ISC. Confronted with yet another minimally productive interlude in the long struggle to improve conditions in the prisons, this Court reissued its January 1984 order on November 19, 1984 and added the requirement that the State also provide meaningful vocational opportunities throughout the ACI, again by July 1, 1985.

C. The December 1985 Evidentiary Hearing and Subsequent Orders
With the arrival of the July 1, 1985 deadline for conforming the conditions of confinement in the ISC to the requirements of the 1977 Order, plaintiffs requested that the Court undertake a detailed review of the facility. The resulting report of the Special Master, issued July 22, 1985, documented for the fifth time the State's failure to provide the programming repeatedly ordered for pre-trial detainees, and further reported that overcrowding at the ISC had, as anticipated, grown dramatically worse. In strong, unambiguous language, the Special Master exhorted the State to act immediately to resolve these problems:
The past seven months have brought no abatement to the inexorable expansion of population at the ACI.... [T]he population of the Intake Services Center (ISC) for pre-trial detainees and newly admitted convicted offenders has increased from its 1983 size of 250 to 327, an alarming 30 percent growth. While the ISC is a modern, modular structure, it was designed to house 168 prisoners. Thus, it is within nine bodies of reaching 200 percent of capacity. Virtually every cell in the facility has been double-bunked and there is simply nowhere else to put people.
... [A]s little as a 20 percent increase in the number of detainees will require triple-celling, a condition sure to breed all sorts of trouble and woe. Pursuant to the recommendations of a statewide task force on overcrowding, the defendants have undertaken an effort to work with the courts to review bail-setting practices and screen more carefully accused offenders remanded to the ACI. The need to expedite this work is imperative.
Special Master's Findings and Recommendations, July 22, 1985.
Responding to the concerns raised by the Special Master, this Court held an evidentiary hearing in December 1985 to examine the overcrowding crisis at the ISC and its impact on the basic conditions of confinement at the facility. The evidence adduced at the hearing painted a disturbing portrait of life inside the over-stuffed facility. See generally Palmigiano v. Garrahy, 639 F.Supp. 244 (D.R.I.1986). As predicted by the Special Master, double 1185 celling of inmates *1185 in the ISC's 71 square foot cells had been replaced by triple celling beginning in July 1985, and many triple-celled detainees were long-term residents of the facility whose stays exceeded 45 days. Exacerbating the effect of these cramped living quarters was the incredible confinement of the inmates. Detainees were locked in their cells 19-20 hours a day, required to eat meals in their cells and permitted release time in a day room so small that noise levels prevented normal conversation. As a consequence of such claustrophobic conditions, the rate of assaults at the ISC had increased, a situation exacerbated by the intermingling of truly dangerous detainees with individuals simply unable to make bail. In addition, the overcrowding had over-taxed the ISC's ventilation and plumbing systems, overwhelmed its food, medical and mental health services, and strained fire safety and environmental health systems to the breaking point.
In rapid succession, the Court entered two orders designed to ameliorate the devastating impact of overcrowding on living conditions at the ISC. On January 3, 1986, responding to the testimony of both plaintiffs' and defendants' experts that triple celling was totally unacceptable, the Court absolutely forbade this practice at the facility. Id. at 248 n. 4. Finally, on May 12, 1986, the Court entered a more comprehensive Opinion and Order (the May 1986 Order), branding the conditions at the ISC "unconstitutionally impermissible" and requiring defendants to take drastic steps to bring an immediate end to violations at the facility. Id. at 258-260. Among its requirements, the 1986 Order instructed defendants to reduce the population at the ISC to 168, the design capacity, within six months, enjoined them from accepting any new inmates unless the population fell below the 168 cap, again required them to provide meaningful programming for every person whose stay at the facility exceeded 45 days, and ordered defendants to develop specific plans to bring their environmental health and safety practices and their medical and mental health care systems into compliance with the 1977 Order. Particularly noteworthy, in light of the fact that this Court is today faced with even more severe overcrowding at the ISC, is the frustration so unmistakably expressed in the May 1986 Order at defendants' refusal to respond effectively to what were then decade-old problems:

The record shows that for nine years this Court has employed all the artifices it could conceive to have the defendants cure the many constitutional violations it found. I have been imperious, didactic, and supplicatory; I have cajoled and waited as though for Godot. I have ever been reluctant to interfere with the operation of the prison. However, the pattern is always the same: without monitoring, prison officials permitted the kitchen to get into a deplorable state ... they failed to provide adequate medical staff for an increase in population of which they have been aware for years; indeed, repeated warnings from the Special Master have been in vain.... even in the areas that could easily have been corrected, nothing has been done.... The veritable fortune that has been poured into that institution will all be for naught if positive firm steps are not immediately invoked.
The overcrowding must be confronted before it becomes uncontrollable. A delay under the present conditions can give rise to problems of staggering magnitude. ...
Id. at 258.
Wearily, I must confess that I am today at a loss to know how much clearer this Court can be. The problems to which defendants are required to respond have been known for years. Defendants have had explicit notice both as to what constitutes an impermissible level of overcrowding and what is expected of them by this Court. The time that they have had available to devise and implement effective plans to overcome the ISC's problems has been enormous. Yet eleven years after the original order, five years after overcrowding was first identified as critical at the ISC, and more than two years after the 1986 reaffirmation of this Court's entire course of dealing in 1186 this case, defendants are still *1186 frozen in place, unable or unwilling to generate an effective response; and incredibly there is even more to this trail of broken promises and dashed hopes.
Mindful of the social, political and economic forces arrayed against the Department of Corrections in its effort to comply with the Court's commands, this Court indicated in the May 1986 Order that it would be receptive to defendants' requests for modification of the mandated compliance times or for reasonable adjustments of the population cap imposed on the ISC. The Court's posture was at that time, as it has always been and continues to be, one of concern for achieving the broad goals of the original order, not of making unreasonable or unrealistic demands on state prison authorities. Accordingly, to accommodate defendants' subsequent pleas for more time to address the overcrowding problem, the Court modified the May 1986 Order on June 26, 1986 (the June 1986 Order) so that, effective July 1, 1986, defendants were permitted to house up to 250 pre-trial detainees in the ISC. In addition, however, the Court insisted that defendants adhere to a schedule for reducing the population of the ISC from this absolute maximum to its design capacity of 168 by October 1, 1988. The Court's Order also enjoined defendants, in the event that they failed to meet any of the scheduled reductions, from accepting any new detainees until such time as they were able to satisfy the applicable cap. However, the Order further provided that defendants might move for permission to maintain the 250 population cap at all times if they could establish their ability to house that number of detainees while satisfying the requirements of the 1977 Order and relevant constitutional standards. Finally, the Court banned double celling at the ISC, effective July 1, 1986, unless and until defendants were able to provide each double-celled detainee at least ten hours a day out of his cell. No detainee could be double-celled for more than 30 days, however, regardless of how much time he spent out of his cell. As in 1977, defendants again took no appeal from any of the Court's 1986 orders.
D. The 1987 Consent Decrees
Optimism reigned briefly in October 1986 when the Special Master reported that defendants had in fact met the 250 population cap by July 1, 1986 as ordered. More significantly, the Master also found that the reduced population, combined with other improvements made at the facility, had alleviated the physical and programmatic violations previously found at the ISC. Success was short-lived, however. On June 9, 1987 (the June 1987 Order), the Court found defendants to be in violation of the June 1986 Order requiring the phased reduction of the population at the ISC and again enjoined them, effective August 1, 1987, from exceeding the 250 population cap. The Court also specified that, if defendants failed to meet the August 1987 deadline, a fine of $3,000 would be imposed for each day that the failure continued.

Despite this threat of serious financial penalties, defendants never succeeded in complying with the terms of the June 1987 Order. Finally, on July 28, 1987, faced with defendants' obvious inability to control population levels and their continuing pleas for more time to plan meaningful responses to overcrowding, the Court tried a new tack. Rescinding the June 1987 Order, the Court persuaded plaintiffs to abandon, if only temporarily, their reliance on a numerical population ceiling and to substitute instead a conditions-driven monitoring regime. The basic assumption of this new scheme was that conditions, not numbers per se, render a detention facility constitutional or unconstitutional. Thus defendants were ordered to remedy within 30 days any deficiencies in the conditions of confinement remaining at the ISC, most notably in the medical and mental health services areas. Should defendants succeed in rectifying such deficiencies in the time allowed, the Court would view the facility as meeting constitutional standards and the 250 population cap would be lifted. If, on the other hand, defendants failed to rectify the deficiencies on time, the population cap would stand. Additionally, since overcrowding had 1187 repeatedly been shown to be associated with the unconstitutional deterioration *1187 of conditions at the ISC,[4] any population increase over the 250 cap would continue to serve as a warning signal to the parties and would trigger expert review of the facility. More specifically, if the population at the ISC exceeded a monthly average of 265 for two consecutive months, a panel of three experts would immediately conduct a review. Similarly, if the ISC population subsequently reached 280 for two months in a row, and at any time thereafter if it increased by another ten detainees for two consecutive months, expert review would be triggered. In any case, three experts would routinely conduct semi-annual inspections of the ISC. The July 1987 Order was entered with the consent of all parties.
By late 1987, the population of the ISC had resumed its inexorable climb. Indeed so rapid were the increases that experts were soon scheduling virtually back-to-back reviews. Finally grasping the fact that they had no choice but to develop additional housing space for pre-trial detainees, defendants at last broached plans to convert portions of the Pinel Building (also known as the ISC Annex) for such use. On October 6, 1987, with the population count standing at 311, this Court entered yet another order, this time requiring defendants to submit by October 20, 1987 a written plan for reducing the population at the ISC. Among the points that the Court ordered defendants to specifically address in the plan were the opening of the Pinel Building to house up to 60 pre-trial detainees, and defendants' long-range capital development program for dealing with the ongoing population explosion at the ISC.
As had happened so often in the past, October 20, 1987 came and went, and defendants once again petitioned this Court for an extension of time. Ever patient, the Court again agreed on December 16, 1987 (the December 1987 Order), this time permitting unlimited double celling at the ISC, effective from October 28, 1987 through 1188 January 1, 1988. Once again, however, the Court imposed a scheduled reduction in *1188 population on the ISC: By January 1, 1988, defendants were to make 60 beds available at the Pinel Building and to reduce the population at the ISC to 276; by March 1, 1988, defendants were to make an additional 30 beds available at the ISC Annex and were to further reduce the population of the ISC to 250, where it was to remain. To ensure the success of this Order, the Court also required defendants to present, on or before April 1, 1988, a concrete plan spelling out how it intended to keep the population level of the ISC at 250 after the March 1988 deadline. Failure to comply with this Order, the Court warned for a second time, would result in the imposition of heavy and substantial monetary sanctions. As in July 1987, the December 1987 Order was entered with the agreement of the parties.
E. The January 1988 Chambers Conference
In December 1987 and January 1988, in keeping with the Court's policy of continuing review, the Special Master's corrections, medical and environmental experts[5] undertook an inspection of the ISC to determine if the facility conformed with constitutional standards. Viewing the site at times when the population fluctuated between 253 and 276 detainees, these experts identified a number of continuing problems, among them insufficient outdoor recreation space, inadequate and unacceptably noisy day room space, insufficient space to allow all detainees to eat at clean tables out of their cells, too few showers for the detainee population coupled with inadequate hot water for the facilities that did exist, leaking toilets, lavatories and showers, unsound mattresses and pillows, inadequate ventilation, inadequate lighting, broken smoke detectors, limited work opportunities,

inadequate medical coverage, too few social workers, and a complete absence of preventive maintenance. Despite the strains on the facility evident at the population levels observed, levels far below the ones we are dealing with today, the Special Master reported to this Court in January 1988 that conditions at the ISC generally passed constitutional muster. This circumstance, coupled with the timely opening of the promised two wings of the Pinel Building and attendant dip in the ISC's population, prompted the Court to convene a chambers conference on January 28, 1988 to explore a redefinition of the Court's role in the case.
Discussion at the conference centered on the procedures to be followed in the future given the then current status of the ISC as a constitutional facility. Although the Court expressed the view that the burden should now fall on plaintiffs to petition the Court if they felt that the facility was reverting to unconstitutional conditions of confinement at or near the 250 population cap (Tr. 11-13), the Court left undetermined what the implications of a substantial escalation of the population at the ISC would be (Tr. 12 and 23-24). Instead the Court reaffirmed the appropriateness of the 250 population cap (Tr. 12) and explained to defendants that it was equally their burden to come into court and seek modification of the cap if they thought modification warranted by changed circumstances (Tr. 44). In short, despite the exploratory tone of the conference, there can be no doubt that the Court left undisturbed the December 1987 Order (Tr. 12 and 41-43). Thus, at the conclusion of the chambers conference, the following provisions of that Order remained standing: that by March 1, 1988 defendants would make a total of 90 beds available at the Pinel Building, at which time the population cap at the ISC would be fixed at 250; and that by April 1, 1988 defendants would file with the Court a long-range plan incorporating future initiatives to further reduce the population at the ISC. In addition, the parties agreed in principle that after March 1, 1988 the Special Mastership would be terminated; that plaintiffs would, in the future, take the initiative to 1189 institute actions if they felt constitutional standards were again being violated at the ISC; and that *1189 defendants would, in the future, be required to take the initiative to seek modification from the Court of the 250 population cap (Tr. 42-45). Before, however, the agreements reached at this conference could be promulgated as an order, plaintiffs, responding to defendants' failure to adhere to the 250 cap after the March deadline for stabilizing the population at the ISC, entered a motion for an order to show cause why the defendants should not be held in civil contempt.
F. The July 1988 Show Cause Hearing and Subsequent Developments
On July 21, 1988, this Court held an evidentiary hearing to consider plaintiffs' contempt motion. That defendants had routinely exceeded the agreed upon population cap of 250 was never in doubt; at the hearing, defendants stipulated to persistent, intensive overcrowding at the facility (Stips. A.1, A.2, A.3, A.4 and A.5). The average daily population of the ISC in May, for example, was 325, in June slightly over 338, and in the first twenty days of July just below 350 (Tr. 10, 84). Thus not only were defendants exceeding the 250 population cap, but they were also, beginning in June 1988, routinely exceeding the full double-celling capacity of the facility. In addition, plaintiffs alleged, and defendants conceded, that during this same period of time pre-trial detainees were being bunked dormitory-style in multi-purpose rooms and in the library in violation of the 1977 Order (Tr. 83-87, Stip. A.6), and some individuals were being double-celled in excess of 30 days in violation of the June 1986 Order (Stip. A.7). For their part defendants took the position that, despite the numbers, conditions at the ISC were constitutional, that the numbers were beyond their capacity to control and that, as always, more time was needed for dealing effectively with overcrowding at the facility.
Since the July hearing, the pre-trial detention population of the ACI has virtually exploded. According to the defendants' own daily population reports submitted to the Special Master and the Court, an unprecedented 452 pre-trial detainees were housed in the ISC and ISC Annex on September 22, 1988, 396 of whom were crammed into the ISC itself. Yet only six days later, on October 2, 1988, the population had surged upward to a new high of 564, 450 of whom were now housed in the ISC. ACI Daily Population Report. Nor are these figures atypical. Between July 21, 1988, the day of the evidentiary hearing, and October 6, 1988, the last day for which this Court has received an updated report, the population at the ISC dipped below the double-celling capacity of 336 for only four days and has routinely topped 400 since mid-September.[6] Given the facility's double-celling capacity of 336 and assuming no triple celling, a population like that reported on October 2, 1988 means that the facility is operating at 80% above the agreed upon population cap of 250 and 34% above its double-celling capacity, with

dozens of individuals impermissibly stacked in the library and multi-purpose rooms of the facility. In addition, a population grown to this size means that the ISC's mechanical systems, food services, medical facilities and recreational facilities are all being operated at more than 250% of their design capacity. Nor is there any relief in sight. Although defendants met the April 1, 1988 deadline for submitting to this Court a long-range plan addressing overcrowding in the ISC, the construction of two 96 bed additions to the facility announced in that report is presently being delayed by negotiations between the City of Cranston and the State of Rhode Island over approval for the construction of a new Medium Security facility. Indeed in his July 21, 1988 testimony, Director Moran conceded that completion of this expansion project is at least two to three years away (Tr. 92-93), while projected increases in the capacity of the Pinel Building are one to two years off (Tr. 91). In addition, anti1190 drug legislation introduced in the last session of the General Assembly authorized *1190 increased use of pretrial detention in drug-related cases. Yet even as policymakers and state courts continue to deluge the state prison with pre-trial detainees in unprecedented numbers, little attention has been paid in Rhode Island to the kind of interim modular housing projects and pre-trial alternatives, among them pre-trial diversion programs, pretrial release programs for non-violent petty offenders held for want of nominal bail, bail funds, community-based detention programs, and house arrest programs, that have been used in other states to relieve pressure on the prison system. As the public clamor for tough anti-crime measures continues to mount, the overcrowding crisis that the Rhode Island prison system is struggling with today can only grow worse.
This Court is thus faced with a gordian knot. On the one hand, there can be no doubt, given the facts of this case, that the Department of Corrections has engaged in the most torpid imaginable response to the problem of overcrowding at the ISC. At virtually every point in the long history of this case, the Department has relied on the complexity of the problems, which this Court has never denied, as an excuse to plead for more time. Yet despite this Court's generosity in being responsive to these pleas, year after year has passed and still the Department has failed to make convincing efforts to implement viable solutions. On the other hand, however, other state actors have repeatedly tripped the Department up by continuing to make decisions that overwhelm the halting efforts the Department has made to cope with the situation. As quickly as the Department finds or creates new space for pre-trial detainees, the cumulative effect of state executive, legislative and judicial action or inaction over-fills the ISC again. Lacking focused attention to the problem, the left hand has ever succeeded in undermining what the right hand has accomplished.
Despite my empathy for the problems faced by the State in its efforts to cope with what I know are very difficult problems, and despite my respect for the progress the State has made in dramatically upgrading its prison facilities in the years since this case was first filed, certain facts must not be forgotten: In 1977 defendants were permanently enjoined from housing pre-trial detainees in dormitories. In January 1986 defendants were permanently enjoined from triple-celling detainees in the ISC, and were further ordered in June 1986 never to double-cell detainees unless such individuals were able to spend ten hours per day out of their cells, and even then for not more than 30 days. Finally, in 1987 defendants agreed to a population ceiling of 250 at the ISC. These remain the standing orders of this Court with regard to the problem of overcrowding at the ISC, orders devised with the involvement of the parties and with the requirements of the United States Constitution in mind. Whatever my sympathies with the problems faced by these defendants, the fact remains that I cannot allow these orders, rational and fair directives worked out over years with defendants' participation and consent, to be ignored.
II. FINDING OF CONTEMPT
A. Clear and Convincing Evidence of Violation
The plaintiffs have moved the Court to adjudge the defendants, Honorable Edward DiPrete, Governor of Rhode Island, and John J. Moran, Director of the Rhode Island State Department of Corrections,[7] to be in civil 1191 contempt of three standing orders *1191 of this Court governing the housing of pre-trial detainees at the ISC. First, plaintiffs allege that the defendants are grossly exceeding the population limit of 250 at the ISC, in violation of the Order entered by agreement of the parties on December 16, 1987.[8] Second, plaintiffs allege that defendants have not limited double celling as they were ordered to do on June 26, 1986;[9] the specific allegation

is that defendants are double-celling detainees for more than 30 days and are not providing double-celled detainees with at least ten hours out-of-cell time each day. Plaintiffs' third allegation is that defendants are housing pre-trial detainees in dormitories at the ISC, violating the standing order of August 10, 1977.[10]
To establish civil contempt, a complainant must show by clear and convincing evidence that a specific order of court has been violated. See AMF Inc. v. Jewett, 711 F.2d 1096, 1100 (1st Cir.1983); Burke v. Guiney, 700 F.2d 767, 769 (1st Cir.1983). The evidence presented at the July 1988 show cause hearing, reviewed at pages 15-16 above, unquestionably supports plaintiffs' first and third allegations. Defendants stipulated to population statistics which demonstrated that they seldom, if ever, complied with the population limit in May 1988 and never complied in June 1988 (Stips. A.1, A.2 and A.3). Defendants also stipulated that detainees were housed in dormitories in May, June and July of this year (Stip. A.6). Plaintiffs' second allegation was proven in part and refuted in part. Director Moran testified that double-celled detainees were in fact being provided with ten hours out-of-cell time each day (Tr. 91), in accord with the June 1986 Order, but defendants admitted that during May and June 1988 certain pre-trial detainees at the ISC were double-celled for more than 30 days (Stip. A.7), in direct violation of the June 1986 Order.
B. "Substantial Compliance" Standard
A finding of civil contempt must be based not on a mere violation of a court order but on a party's failure to achieve substantial and diligent compliance in meaningful respects with what the court has ordered. Ruiz v. McCotter, 661 F.Supp. 112 (S.D.Tex.1986); Aspira of N.Y. Inc. v. Board of Educ., 423 F.Supp. 647 (S.D.N.Y.1976) . The standard to be used in evaluating the actual performance of an alleged contemnor against the performance ordered is "substantial compliance." Fortin v. Commissioner of Mass. Dep't of Pub. Welfare, 692 F.2d 790 (1st Cir.1982). The First Circuit has recognized that "[N]o particular percentage of compliance can be a safe-harbor figure, transferable from one context to another. Like `reasonableness,' `substantiality' must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which non-compliance affects that interest." Id. at 795. In this case, the interest at stake is nothing less than the lives and safety of hundreds of persons, on any given day, who are awaiting trial, held by the State not because they have been found guilty of any crime, but because they could not put up the money for bail or because bail has not been set. Over the history of this case, the Court has received credible testimony,[11] corroborated by reports of the 1192 Special Master and his experts,[12] about the *1192 effects of overcrowding. Of greatest concern to this Court is the likelihood of violent loss of life or serious physical injury for detainees and prison personnel resulting from overcrowding beyond the limit set for this particular facility.[13]
Defendants' violations of these Orders are not minor technicalities. In the past four months, defendants have never once complied with the population cap and have repeatedly violated the double-celling limit and the prohibition against housing pre-trial detainees in dormitories. This Court would not entertain a motion for contempt if the population exceeded the cap by several persons overnight or over a weekend. Here, however, the population at the ISC has pushed the facility to the bursting point. Defendants' performance simply cannot be termed "substantial compliance" with the orders of this Court. Given the magnitude of these violations, proven by undisputed evidence, the Court must take the serious step it does today.[14]
C. Contempt of a Consent Judgment
The fact that one of the orders at issue here was a consent judgment in no way effects the ability of the Court to enforce it through a finding of civil contempt. The population cap of 250 was ordered with the agreement of the parties. The fact that defendants consented to this limit does not entitle them to transgress it now. A consent judgment is a judicial act with the same force and effect as a judgment rendered following a contested trial. Inmates of Boys' Training School v. Southworth, 76 F.R.D. 115, 123 (D.R.I. 1977). The efficacy of a consent judgment rests on the consenting parties' compliance with its terms. The First Circuit has noted that consent 1193 decrees, when entered into by private parties, are often viewed as contracts, United States v. ITT Continental *1193 Baking Co., 420 U.S. 223, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975), but that "programmatic decrees in public

law litigation may call for somewhat more flexible interpretation in light of the need to achieve their basic purposes (the eradication of unconstitutional conditions) and the need to accommodate the differing competencies of different branches of government as well as the differing needs and interests of the parties." Massachusetts Ass'n for Retarded Citizens v. King, 668 F.2d 602, 607-08 (1st Cir.1981). The First Circuit's rationale for this distinction was stated this way: "A civil finding of contempt in the private context essentially triggers a payment of money damages as in garden variety tort or contract litigation. There is no risk of the kinds of societal disruptions that may be threatened in the public law context where judicial discretion may well be crucial to securing complex legal goals." AMF Inc. v. Jewett, 711 F.2d 1096, 1101 (1st Cir. 1983).
No one who studies carefully the long history of this case can fail to see how flexibly this Court has treated its own orders precisely because it has the utmost respect for the "differing competencies of different branches of government as well as the differing needs and interests of the parties." For these reasons, I have modified and amended the orders at issue today so often that I have lost count, and always in response to defendants' pleas for flexibility. There comes a time, however, when flexibility must give way to enforcement lest one party's failure to comply undermine the viability of the agreement which the parties reached and the Court approved as a workable solution to the problems presented.
Defendants agreed to the provisions of the December 1987 Order on October 28, 1987, thereby committing themselves to achieving compliance with this population cap. The decree was not expressed in terms of hopes or suggestions. Defendants did not agree only to try; they agreed to bring the facilities under their supervision into compliance with the consent decree. Defendants have not petitioned for modification of the decree although this might have provided an opportunity for the Court to restructure it to accommodate defendants' problems before they reached this critical point.
Finally, this Court sees that its decision to adjudge defendants in contempt is necessary to head off a "societal disruption" of serious magnitude. Only an order holding these defendants in contempt will spur them out of the bureaucratic quicksand in which they have become mired, and force them to take the action necessary to meet the standards established in the consent decree.
D. Basis of This Contempt Order
This Court bases its decision on the defendants' violations of the August 1977, June 1986 and December 1987 Orders, violations of ever-increasing magnitude. The opprobrious condition of cramming as many as 450 persons into a facility which, in the extreme, can only house 250, is potentially explosive. It is a disaster waiting to happen and mandates action by this Court. The law of civil contempt empowers me to decide this motion now without waiting for some catastrophe to occur as a result of the overcrowding. The 1987 consent decree enables me to enforce the standards to which defendants themselves agreed, standards which may in fact be higher than the minima assured by the United States Constitution. The defendants have not complied with these standards and the plaintiffs now ask the Court to compel defendants' compliance. I do so not only because plaintiffs are entitled to the "benefit of the bargain" they struck with defendants, but because the danger of serious harm to detainees and prison personnel, and perhaps the loss of lives, loom on the horizon.
The purpose of judicial intervention in a case such as this is not simply to prevent isolated instances of misconduct. The court's duty is to remove a threat to constitutional values posed by the manner of operation of the institution. See Battle v. Anderson, 708 F.2d 1523, 1538 (10th Cir. 1983), citing Fiss, The Supreme Court, 1194 1978 Term0907 Foreword: The Forms of Jus- *1194 tice, 93 Harv.L.Rev. 1, 22-23 (1979). Judicial remedies in such cases typically take the form of prospective injunctions supported by continuing oversight to assure compliance. As one scholar noted, "The court's jurisdiction will last as long as the threat persists." Fiss, supra, at 28.
Here, past unconstitutional conditions at the ISC threaten to recur. As the number of detainees increases, the ability of the Department of Corrections to house these people safely and humanely in the space available diminishes. This Court feels it is crucial to enforce compliance with the Orders at issue to stave off impending disaster.

III. DEFENDANTS' DEFENSES

In their Post-Trial Memorandum of Law, defendants readily conceded that this Court has great discretion in holding a party in civil contempt for violations of its own orders, citing United States v. Rhode Island Dep't of Employment Sec., 619 F.Supp. 509 (D.R.I.1985) for authority (D. Memo. 14). Instead defendants argued, as they did at the July 21, 1988 hearing, that the Court should stay its hand in light of the good faith efforts that they have made over the years to cope with the overcrowding problem at the ISC and the improvement that they have achieved in the overall conditions of confinement at the facility. In addition, plaintiffs addressed in their Post-Trial Memorandum of Law a third defense not actually raised by defendants, that of factual impossibility of compliance (Pl. Memo. 18-21).
A. Good Faith

Defendants' claim that they have made good faith efforts to comply with the orders of this Court simply does not provide a valid defense to plaintiffs' motion. In elaborating the law of civil contempt, the Supreme Court long ago established that a defendant's motive for doing a prohibited act cannot relieve him of responsibility for the violation. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949). The Court derived this rule from the very nature of civil contempt as "a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance." Id. at 191, 69 S.Ct. at 499. See also, e.g., Maggio v. Zeitz, 333 U.S. 56, 68, 68 S.Ct. 401, 407, 92 L.Ed. 476, 486 (1948); Penfield Co. v. Securities & Exch. Comm'n, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117, 91 L.Ed. 1117 (1947). Given the broad remedial purpose of the contempt power, the McComb Court reasoned, it is of no consequence why defendant did what he did, only that he failed to act in accordance with an order of a court. This analysis has been followed repeatedly in the First Circuit. In Fortin v. Commissioner of Mass. Dep't of Pub. Welfare, 692 F.2d at 796, for example, the Circuit said flatly "good faith is not a defense to civil contempt." Accord Donovan v. Enterprise Foundry, 751 F.2d 30, 38 (1st Cir. 1984); NLRB v. Maine Caterers, Inc., 732 F.2d 689, 690 (1st Cir.1984). Consequently, although this Court acknowledges the efforts that defendants have made to bring the ISC into compliance with its orders, the bare fact that efforts have been made is not the issue here. That the facility is not in substantial compliance with a standing order of this Court is our principal concern today.
B. Constitutionality of Conditions

Defendants' second argument, that they have succeeded through diligent effort in bringing present conditions at the ISC into compliance with constitutional requirements, is no more compelling. A contempt motion presents the issue of whether the standing orders of this Court will be enforced; it does not provide an opportunity for collateral attack on the judgment underlying the orders. The Supreme Court long ago fixed the boundaries of this kind of action:

1195

It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure *1195 to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.

Maggio v. Zeitz, 333 U.S. at 69, 68 S.Ct. at 408, 92 L.Ed. 476. See also United States v. Rylander, 460 U.S. 752, 756-57, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983) (reaffirming the principle enunciated in Maggio).

As plaintiffs accurately point out in their Post-Trial Memorandum, federal courts called upon to enforce court orders in prison overcrowding cases have recently found that the principle articulated in Maggio applies with special force when the underlying judgment is by consent (Pl. Memo. 21). In August 1988, for example, the Circuit Court for the District of Columbia, in dismissing the District's attempts to evade responsibility for violating

the terms of a consent decree on the ground that the prison in question was currently operating as a constitutional facility, said flatly:
The District's argument that the conditions at Central do not implicate the Eighth Amendment is of no avail. The District voluntarily agreed to the terms of the consent decree in lieu of litigating the constitutional issues raised by appellees' complaint. The requirements of the decree, not the Eighth Amendment, are the measure of the District's responsibilities. The District cannot unilaterally alter the terms of the decree in its endeavor to erect a defense to the contempt motion.
Twelve John Does v. District of Columbia, 855 F.2d 874, 878 n. 3 (D.C.Cir.1988). See also, e.g., Ruiz v. McCotter, 661 F.Supp. 112, 116 (S.D.Tex.1986) (in civil contempt proceedings arising from defendants' non-compliance with several previous orders in prison reform action, district court concluded that "questions concerning the constitutionality of the Texas prison system are not under consideration at the present juncture; rather, the matters in dispute relate to allegations of contumacy by TDC with respect to specific provisions of prior orders"). Accordingly, this court need not reach defendants' Eighth Amendment defense.
Assuming for the moment, however, that defendants' Eighth Amendment claim were not wholly irrelevant to the present action, defendants' articulation of this defense, relying as it does on Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir.), reh'g denied, 850 F.2d 796 (1988) (en banc), adopts a theory not appropriately applied to this case. Specifically, defendants seem to be arguing that this Court does not have the power to enforce a population cap on a prison facility operating, as the ISC was found to be in January 1988, in a constitutionally acceptable manner. Setting aside the fact that the Occoquan decision addresses the constitutional rights of convicted prisoners rather than those of pre-trial detainees, defendants clearly misapprehend the principles enunciated in the case by the Court of Appeals for the District of Columbia and thus overstate its implications for this action.
In Occoquan, the Court of Appeals reviewed the District Court's imposition of a population cap on each of the nineteen units within the Occoquan facility and its requirement that the District of Columbia reduce the total number of prisoners held at the prison. See Inmates of Occoquan v. Barry, 650 F.Supp. 619 (D.D.C.1986). Noting that the District Court had held not that overcrowding at Occoquan offended the Eighth Amendment, but rather that overcrowding exacerbated the effects of deficiencies in the prison's environmental, fire safety, medical and mental health systems which, taken together, violated the Constitution, the Court of Appeals concluded that the District Court's use of its equity power to institute an absolute population limit at Occoquan was not tailored narrowly enough to remedy the specific problems identified. In the words of the appellate court:
In our view, immediate resort to a population cap was much too blunt an instrument in view of the court's specific findings of "deficiencies"....
Inmates of Occoquan v. Barry, 844 F.2d at 842.
1196 *1196 In the Rhode Island District Court's view, there is a crucial difference between imposing a population cap as a cure-all for unconstitutional conditions of confinement as the District Court did in Occoquan, and enforcing a population cap determined over the course of protracted, complex litigation and adopted by the parties as one element of a carefully tailored remedy specifically addressed to each of the deficiencies affecting a facility, as has transpired in this case. Because we are dealing in this case not with "too blunt" a judicial remedy but with a sharply focused consent decree and orders that have emerged out of years of negotiation between the parties, defendants' reliance on the very different reasoning of the Occoquan opinion is clearly misplaced.[15]
C. Impossibility
Finally plaintiffs correctly point out that a finding of civil contempt can be deflected by a showing that compliance with the court's order is factually impossible. See United States v. Rylander, 460 U.S. at 757, 103 S.Ct. at 1552, 75 L.Ed.2d 521. The logic of the impossibility defense is inherent in the very nature of civil contempt. The purpose of the sanction is, as noted above, to compel a reluctant or recalcitrant party to comply with a judicial order or voluntary agreement. If he is literally unable to do so because compliance is not presently within his

power, the attempt at coercion embodied in a finding of contempt is meaningless. See Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966); Maggio v. Zeitz, 333 U.S. at 69, 68 S.Ct. at 408, 92 L.Ed. at 487 (contempt order should issue "only when it appears that obedience is within the power of the party being coerced by the order"). A defendant claiming impossibility, however, bears a heavy burden of production, see, e.g., United States v. Rylander, 460 U.S. at 757, 103 S.Ct. at 1552, 75 L.Ed.2d 521; United States v. Fleischman, 339 U.S. 349, 362-63, 70 S.Ct. 739, 746, 94 L.Ed. 906 (1950); Maggio v. Zeitz, 333 U.S. at 75-76, 68 S.Ct. at 411-12, 92 L.Ed. 476, and this burden is especially difficult to meet in cases where the needs of petitioners are urgent. See Fortin v. Commissioner of Mass. Dep't of Pub. Welfare, 692 F.2d at 797.
Federal courts applying the test of impossibility to the conduct of state officials in prison overcrowding cases have been particularly strict in their interpretation of this defense. The Western District of Michigan, for example, has interpreted factual impossibility to mean "that there are no steps [defendants] can take within their lawful authority to maintain uncrowded conditions at the Consent Decree institutions." United States v. State of Michigan, 680 F.Supp. 928, 1053 (W.D.Mich.1987) (holding prison officials, corrections commissioners and Governor in contempt for failing to comply with consent decree regarding overcrowding after determining that defendants had at least five measures they could take to relieve overcrowding). Similarly, the Second Circuit has stated that defendants' already heavy burden of proof is further heightened where prison officials have engaged in a "long history of delay" in confronting an overcrowding problem. See Badgley v. Santacroce, 800 F.2d 33, 36 (2d Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987) (holding correction officials in contempt for exceeding population cap established by consent decree when political difficulties and possible conflict with state courts were only reasons cited as making compliance impossible). See also Twelve John Does 1197 v. District of Columbia, at 877- *1197 78 (rejecting impossibility defense where District had for years failed to take steps to eradicate prison overcrowding problem); Tate v. Frey, 673 F.Supp. 880, 882-83 (W.D.Ky.1987) (rejecting defendant corrections officials' impossibility defense based on large increase over six year period in number of state-held prisoners and the legislature's failure to supply sufficient additional beds).
Unquestionably the many factors that led the several courts cited above to hold state or local officials in contempt for failure to abide by self-imposed population caps are all present in this case. The Rhode Island State Department of Corrections and the Governor have had unequivocal notice of the overcrowding problems at the ISC since at least 1983. It goes without saying that, had defendants made a sincere and timely effort to address the problem six years ago when it was first identified, or even four years ago when it was first closely analyzed in the 1984 report of the Governor's Task Force on Prison Overcrowding, defendants would not be in the sorry situation they find themselves in today. Given this long history of delay, it is disingenuous for defendants to continue to plead that the problem has grown too overwhelming to deal with after systematically refusing to address this visibly brewing crisis for so long. Such a blatant attempt to avoid responsibility for their own patently apathetic behavior will not, at this late date, rescue them from its consequences.
Additionally, Director Moran's suggestion, made in the January 1988 chambers conference (Tr. 43), and repeated by Attorney Dugan in the July 1988 evidentiary hearing (Tr. 24), that corrections officials are powerless to control the actions of the legislature in passing no bail statutes for alleged drug offenders and other high profile suspects also fails to establish factual impossibility. The presumption underlying this argument is that the ISC is overcrowded because it is being stuffed with such no bail offenders by state judges acting upon legislative mandates. Yet at the July 1988 hearing, plaintiffs' corrections expert presented data showing that 24% of the detainees held at the ISC and the ISC Annex on May 9, 1988, were being held on bond of $5,000 or less and thus represent a pool of offenders who might be appropriate for participation in pre-trial release programs, were such an alternative available in Rhode Island (Tr. 35-43). The viability of such an approach to relieving pressure on the ISC has since been confirmed in statistics supplied to the Special Master and the Court. According to these statistics, of the 517 detainees held at the ACI on September 26, 1988, 51 of the 68 being held on cash bail were being detained on bail of less than $1,000, and another 132 detainees were being held on surety bail amounting to $5,000 or less. In other words, 200 (38%) of the total population of pre-trial detainees listed for that day were potential candidates for pre-trial release. In the face of such statistics, I do not see how these defendants can assert that they are doing everything in their power to cure overcrowding at the ISC.
Furthermore, the Second Circuit has already provided the answer to the Department's implied concern that corrections officials are powerless to control the bail setting and sentencing practices of state judges. In response

to defendants' argument that they lacked the power to turn away pre-trial detainees committed to their care by the state courts, and thus were being forced by state court practices to overcrowd their prisons, the Badgley court explained that the Supremacy Clause is a complete defense to any attempt by state courts to hold corrections officials in contempt for violating state court orders in an effort to comply with conflicting federal court requirements. See Badgley v. Santacroce, 800 F.2d at 37-38. See also Twelve John Does v. District of Columbia, at 878.
Finally, defendants are clearly not faced with financial impossibility, given the legislature's appropriation of $16.5 million to expand the ISC (Tr. 76-77).
In pointing out here the options potentially available to defendants, this Court does not mean to suggest how they 1198 should go about solving the overcrowding problem. *1198 Indeed Supreme Court precedent clearly indicates that
the choice of solutions in a situation such as this must be left to qualified state officials, who are entitled to great deference in the administration of state prisons. See Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). Instead I am merely endeavoring to make clear that viable options are available and to express emphatically that the time for selecting among these alternatives is long since past. In urging these defendants to take the initiative to solve the overcrowding problem at the ISC, I am certainly not blind to the political problems that they will face in working to implement solutions. However, the realities of the political process do not excuse the Governor and the Director of the executive branch's Department of Corrections from their responsibility for taking the lead in this area. If we have learned nothing else from the tortuous history of this case we have surely learned that remedying the problems of this State's prisons requires focused, aggressive attention of the kind that can only come from the highest officer of the State. Defendants must begin immediately to fashion short-range solutions while simultaneously working to devise more permanent answers. This Court would much prefer to see defendants act to bring the ISC into compliance with the orders in question than to employ its own power to require defendants to devise and implement a release program for pre-trial detainees when the number held in the ISC exceeds the population cap.
In sum, given the existence of several possible solutions to the overcrowding problem at the ISC, and given defendants' failure to come to grips with the need to vigorously pursue such options despite six years of prodding from this Court, an impossibility defense is completely unavailable to them in this case.
IV. RELIEF
Plaintiffs have proven by clear and convincing evidence numerous and continuing violations of the Court's Orders by these defendants. Plaintiffs' motion for adjudication of civil contempt is accordingly granted.
This Court is mindful that the purpose of civil contempt is not to punish for past non-compliance but to secure future compliance with orders of the court. Plaintiffs have argued, and this Court agrees, that a finding of civil contempt, without coercive sanctions, would be meaningless in this case. Measures short of coercive sanctions have repeatedly proven ineffective to spur these defendants to action. In selecting the sanctions to impose, this Court has followed the command of the Supreme Court: "It [the court] must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired." United States v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947).
Accordingly, the Court feels it most expedient at this point to coerce compliance with its past orders through the imposition of a fine. Defendants were put on notice ten months ago that this Court intended to use fines, if necessary, to enforce its orders. In its order of December 1987, this Court warned defendants that "Failure to comply with this Order [mandating the reduction of the population at the ISC to 250 by March 1] shall result in heavy and substantial monetary sanctions against the defendants." (December 1987 Order, p. 3). I recognize that the final burden of this fine will fall on the taxpayers of Rhode Island if the defendants fail to comply with the Court's orders by the date specified. However, I must impose these fines in order to force defendants to deal 1199 immediately with the overcrowding crisis.[16] The consequences of not coming *1199 to grips with the problem now will impose a far greater loss, counted in dollars and lives, in the future.

IT IS HEREBY ORDERED that defendants, Governor Edward DiPrete and Director John Moran, are in contempt of court for having failed to comply with the following provisions contained in standing orders of this Court: the prohibition against housing detainees in dormitories, the limitation on double-celling any pre-trial detainee for more than thirty days, and the population cap of 250 persons at the ISC.
IT IS FURTHER ORDERED that defendants shall file with the Court by November 21, 1988 a specific and detailed plan, to be approved by the Court, which will ensure that the population of the present 168-cell ISC will be maintained at no more than 250 persons, that dormitory housing of detainees will cease, and that no detainee will be double-celled for more than thirty days. This plan must describe how the Department of Corrections intends to house its detainee population in the next twelve months. The plan must consider, at a minimum, the rate of increase in the number of detainees in recent months, the total number of detainees expected to be housed, the predicted security classifications of those detainees, the restrictions ordered by this Court, and the conditions of confinement.
IT IS FURTHER ORDERED that defendants may purge themselves of contempt by implementing, by February 20, 1989, the above-mentioned plan to: 1. reduce the population at the ISC to no more than 250 persons; 2. refrain from housing pre-trial detainees in dormitories; and 3. double-cell no pre-trial detainees for more than thirty days.
IT IS FURTHER ORDERED that if defendants fail to file a plan with the Court by November 21, 1988, or if they fail to bring the ISC into compliance with the court orders by February 20, 1989, fines will accrue at the rate of $50 per day for each detainee held in the ISC in excess of the 250 population limit. At a population level of 450, the defendants would incur a fine of $10,000 each day.
If the overcrowding crisis persists in spite of these sanctions, the Court will reconsider its selection of sanctions.
[1] Palmigiano v. Garrahy, 639 F.Supp. 244, 246 (D.R.I.1986).
[2] Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I. 1977). This Court is also mindful of the fact that the Palmigiano decision was preceded by nearly a decade of litigation over conditions at the ACI. See Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970) and progeny.
[3] The only Task Force recommendation adopted was to construct a new medium security facility at the ACI. Special Master's Memorandum, September 26, 1988.
[4] Since the issuance of Palmigiano v. Garrahy, 639 F.Supp. 244 (D.R.I.1986) in 1986, this Court has consistently articulated the causal relationship that exists between overcrowding and the persistence of unconstitutional conditions of confinement at the ISC. In 1986, for example, I said:
The situation here is not merely one of pure numbers. I do not look at the overcrowding in a vacuum. The experts chronicled the problems of extensive confinement: high levels of frustrations and irritation, increased assaults, high levels of idleness, serious environmental, health and maintenance problems, over-extended staff, and dangerous mental and medical health practices, all of which were linked to and exacerbated by the overcrowding.
Id. at 257. Again in the July 1987 Order I explained:
Because the Court's continuing intervention in the ACI must be keyed not to numbers but to the conditions that in their totality violate the constitutional rights of prisoners, the parties agreed to the necessity of developing a system of review that focuses primarily on conditions. This focus on conditions, however, should not obscure the Court's experience in the long history of this case, which illustrates clearly that excessive numbers lead almost ineluctably to the rapid deterioration of conditions.
July 28, 1987 Order. The critical point is simply this: Time and time again, experts involved in this case have demonstrated the link between overcrowding and unconstitutional conditions of confinement. There can be no question at this point in the long history of this case that the two are inextricably interwoven. Based on this welldocumented relationship, and in light of defendants' own admissions that the design capacity of the building

imposes an upper limit on the number of individuals who can be housed safely and humanely in the ISC, this Court has ruled that triple celling is absolutely forbidden at the facility. Id. at 248 n. 4. This order, coupled with a standing order against dormitory housing of pre-trial detainees, establishes a theoretical upper limit on the population of this particular facility of 336, the number that would be present if every individual were appropriate for double celling. Most significantly, however, the parties to this action have repeatedly agreed, and it has been so ordered by this Court, that 250 is the population at which the right of the plaintiffs to humane conditions of confinement consistent with constitutional requirements can be fairly balanced with the societal demand placed upon the Department of Corrections to provide housing for growing numbers of pre-trial detainees. Having worked out, over many years, a fair and reasonable measure of the ISC's carrying capacity that comports with constitutional standards, this Court need not now stand idly by waiting for disaster to befall an impermissibly overcrowded facility.
[5] Dr. Armand Start inspected the ISC on December 1-2, 1987 for medical deficiencies, Ward Duel on January 11-12, 1988 for environmental health and safety violations and Jacqueline McMickens on January 13-15, 1988 for corrections problems.
[6] This analysis is based on ACI Daily Population Reports supplied to the Special Master for all days in the time period in question except August 26, September 1, September 15 and September 28, 1988.
[7] I would note that these defendants are clearly responsible for implementing the orders which plaintiffs allege have been violated. State law in Rhode Island explicitly charges them with responsibility for the operation of the Department of Corrections: "All functions, services, and duties of the department of corrections shall be organized by the director with the approval of the governor according to the following divisions: (a) Adult services shall include but not necessarily be limited to the administration generally and specifically of the state's correctional institutions, work release programs and other similar or appropriate functions as determined by the director with the approval of the governor...." R.I.Gen.Laws Sec. 42-56-4 (1984). Therefore, these defendants are responsible for ensuring that the facilities operated by the Department function in compliance with this Court's Orders of August 1977, June 1986 and December 1987.
[8] The December 1987 Order provided: "On March 1, 1988, Defendants shall make available thirty additional beds [for a total of ninety beds] at the Pinel Building (ISC Annex) at which time the population ceiling at the Intake Service Center shall be reduced to 250."
[9] The June 1986 Order stated: "Commencing July 1, 1986, no inmate shall be double-celled at the ISC unless that inmate is provided with at least ten hours each day out of his cell and no inmate shall be double-celled for more than thirty days."
[10] The August 1977 Order stated: "[D]etainees shall not be housed in dormitories." Paragraph 2(b), 443 F.Supp. at 986.
[11] Evidentiary hearing, Dec. 1985, testimony of Theodore J. Gordon, Patrick D. McManus, and Dr. Frank Rundle, summarized in Palmigiano v. Garrahy, 639 F.Supp. 244 (D.R.I.1986).
[12] Special Master's Final Report on Compliance with the Aug. 10, 1977 Order, Oct. 20, 1983; Special Master's Findings and Recommendations, July 22, 1985; Special Master's Tentative Findings and Recommendations, Oct. 3, 1986; Special Master's January 1988 Report, summarizing the findings of medical, corrections and environmental experts.
[13] This Court has never held that overcrowding per se is impermissible at the ISC. Rather I have always reasoned that certain levels of overcrowding, established over the years by expert testimony at numbers well above the facility's design capacity, create an impermissible risk to pre-trial detainees' constitutional rights. Throughout the long history of this case, I have emphasized and reemphasized plaintiffs' constitutional right to be reasonably free from the threat of violence while held by the State, a right recognized by the First Circuit. Lovell v. Brennan, 728 F.2d 560, 564 (1st Cir.1984) (prison inmates have a constitutional right "to be reasonably free from violence and the threat of violence while incarcerated"), aff'g Lovell v. Brennan, 566 F.Supp. 672 (D.Me.1983). I have carefully grounded this Court's orders related to the housing of pre-trial detainees in this right. See, e.g., Palmigiano v. Garrahy, 443 F.Supp. at 970-71 and Palmigiano v. Garrahy, 639 F.Supp. at 247, 249, 258. That the

ISC was, in January 1988, in compliance with many of the orders of this Court regarding conditions of confinement in no way alters the well-documented correlation between overcrowding and violence at the ISC nor relieves defendants of their responsibility to house pre-trial detainees in circumstances that guarantee, as much as possible, their safety. Director Moran's July 1988 testimony that there had been no increase in discipline problems or the rate of assault when the ISC neared its double-celling capacity last June (Tr. 80-82) provides little reassurance to this Court when faced with the extreme overpopulation levels that have become the norm at the facility since that hearing. Instead the long-established view of this Court, that specific levels of overcrowding at this particular facility are inherently dangerous to detainees' well-being, remains unchanged.
[14] The First Circuit approved a district court's decision to hold public officials in contempt in a situation similar to the one presented here. Massachusetts Ass'n of Older Americans v. Commissioner of Pub. Welfare, 803 F.2d 35 (1986). A class action challenged certain practices of the Department of Public Welfare, which the District Court ordered the Department to change. Two years later, the plaintiffs asked the District Court to hold the Department in contempt, alleging that the Department had failed to obey one provision of the Court's order for several months and had never complied with another provision. The District Court found that the Department was not adhering to the terms of the order and held the Commissioner of Public Welfare in civil contempt. On appeal, the First Circuit affirmed the decision and stated its opinion regarding a litigant in the position of defendants here: "If the Commissioner of Public Welfare felt that those terms [of the Judgment] were inappropriate, he should have sought relief in the form of modification of the Partial Final Judgment under Federal Rule of Civil Procedure 60(b). The district court did not abuse its discretion by enforcing compliance through the contempt sanction and remedial order." Id. at 41.
[15] As I note above, the Court of Appeals for the District of Columbia addressed the precise issue raised in this case in Twelve John Does v. District of Columbia, 855 F.2d 874 (D.C.Cir.1988), decided four and one-half months after Occoquan. In Twelve John Does, the Circuit Court affirmed the lower court's decision to hold the District of Columbia in contempt for failing to comply with the terms of a consent decree which adopted a population ceiling at the facility in question. Juxtaposing Occoquan with Twelve John Does makes clear that the District of Columbia Circuit draws the same distinction between imposing a population ceiling in response to allegations of Eighth Amendment violations and enforcing a population cap adopted by the parties.
[16] Plaintiffs have recommended that any fines collected should be used to finance a bail fund which would pay the bail of low-bond pre-trial detainees under certain terms and conditions to be developed later. While the Court sees much merit in this plan, it reserves judgment as to whether it will order such a bail fund. Developing such a system would require the attention of defendants, and might divert them from implementing a more comprehensive solution to the overcrowding crisis.
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 466 F.Supp. 732 (1979)
Nicholas A. PALMIGIANO et al. v.
J. Joseph GARRAHY et al. Thomas R. ROSS et al. v.
J. Joseph GARRAHY et al.
Civ. A. Nos. 74-0172, 75-0032.
United States District Court, D. Rhode Island.
February 22, 1979.
733 *733 Robert Mann, Providence, R. I., Matthew L. Myers, Alvin Bronstein, Edward Koren, all of the National Prison Project of the ACLU, Washington, D. C., for plaintiffs.
William G. Brody, Asst. Atty. Gen., Providence, R. I., Paul L. Foster, Cranston, R. I., Chief Legal Counsel, R. I. Dept. of Corrections, for defendants.
734 *734 OPINION
PETTINE, Chief Judge.
Plaintiffs' attorneys, employed by the National Prison Project of the American Civil Liberties Union, seek an award of fees in compensation for their successful presentation of a major civil rights class action, wherein the Court ordered the defendants to correct unconstitutional conditions then existing at the Adult Correctional Institution (ACI). The defendants raise their objections to the granting of any award. One of these 0907 that the Eleventh Amendment bans a fee award out of the state treasuries against state officials 0907 can no longer be maintained. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) clearly sets aside any such state immunity. The other objections are that the requested hourly rates are excessive and unreasonable, and that the equities of the case require a reduction of the amount claimed.
The plaintiffs' right to recover a fee under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, is so clearly established that any analysis or extended discussion of this point would be nothing more than an exercise of reiteration. On the other hand, the ultimate determination of the amount of the fee to be awarded requires a close filtering factual analysis of the case through the standards enunciated in King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977), and the teachings of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974); Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978); and Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977).
The consolidated class action giving rise to the present controversy was heard by this Court more than a year ago; after a lengthy trial an opinion was rendered on August 10, 1977, in which the Court found, among other things, that the
lack of sanitation, lighting, heating and ventilation, and the noise, idleness, fear and violence, and the absence or inadequacy of programs of classification, education, physical exercise, vocational training or other constructive activity create a total environment where debilitation is inevitable, and which is unfit for human habitation and shocking to the conscience of a reasonably civilized person. Palmigiano v. Garrahy, 443 F.Supp. 956, 979 (D.R.I.1977).
The case challenged virtually every aspect of prison life and required more than good legal competency to conduct and manage the pretrial discovery stage successfully and, in the courtroom, develop with probative evidentiary clarity the denouement of prison life at the ACI with all its inhumane unconstitutional aspects. It

demanded advocacy at its best. It can be safely said that no case in this courtroom has ever generated more political and public reaction; more than a year later it is still of prime public concern and comment. The undesirability of the case is manifest in the reaction of a great majority of the people and as a consequence with many legislators.[1]
This complex legal and emotional setting is the common denominator for many of the criteria set forth in King, supra, each of which will be discussed; however, the final conclusion should be consonant with prior awards by this Court in similar cases, cited supra, as reviewed by the appellate court, to the end that an evenhanded, logical body of precedents is established.
The right to a fee is firmly established in statutory law. In fact, the Court has already ordered, in its August 10, 1977 decision, that counsel for the plaintiffs be awarded reasonable attorneys' fees. Therefore, I will now consider the controlling criteria and the amount of the award.
735 *735 The Fee Award
In King v. Greenblatt, supra, the standards for computing a fee award under 42 U.S.C. § 1988 are:
1) the time and labor required; 2) the novelty and difficulty of the question presented; 3) the skill required to perform the legal services; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee in the community; 6) whether the fee is fixed or contingent; 7) time limitations imposed by client or circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; 12) awards in similar cases. Id., at 1026-27, describing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).
All these criteria will be considered though the defendants did state on the record that they do not question "the competency of Plaintiffs' counsel or the quality of their work", the number of hours for which compensation is sought.[2] (Defendant's memo p. 4.)
Time and labor required, novelty and difficulty of the questions presented; the skill required to perform the legal services; the experience, reputation and ability of the attorney.
These factors can best be realized by noting the comprehensiveness of the case which encompassed the totality of prison life in Rhode Island. The unconstitutional conditions attacked were the filth and deterioration of the maximum security building, its unsanitary, inadequate and dangerous plumbing and electric lighting, the intolerable noise level within the section, the inadequate heating and ventilating system 0907 guards and inmates wore heavy coats day and night 0907 the existing fire hazards, deplorable food service 0907 presenting imminent danger to public health 0907 health standards in the infirmary, collapse of the classification process, the rampant fear and violence throughout the prison, the intolerable idleness of inmates for lack of programs, the co-mingling of pretrial detainees and convicted felons, lack of drug abuse programs, deficiencies in medical services which were a threat to the lives of the inmates; in short, the plaintiffs developed their case in all these areas in an institution which, as stated by one expert, had "all the egregious deficiencies that could possibly exist" and as another expert testified was the only prison he ever visited for which he could find nothing good to say. In the August 10th Opinion this Court noted the enormous preparation and presentation required by this case: "After extensive discovery, a trial was held which extended over two weeks. The findings of fact required by Fed.R. Civ.P. 52 are set forth herein and are based on the testimony received at trial, stipulations by the parties and extensive exhibits, including depositions of various officers of the Department of Corrections. The Court's task was made easier by the extensive assistance of experts from various fields of corrections, institutional environmental health and sanitation and correctional psychology". Palmigiano, supra, at 960.
It cannot be disputed the case involved a complex, complicated factual situation which required thorough pretrial discovery and study. Especially important was the familiarization with several specialized disciplines, so necessary for the proper presentation of expert testimony. Also required was the correlation and sifting of

massive amounts of evidence and the ultimate orderly presentation in the courtroom. The novelty of the 736 questions raised cannot be *736 questioned; though there may be a legion of decisions on various aspects of
prison conditions, at the time of this trial the Court could find no other decision covering the entire range of issues raised in this litigation.
The plaintiffs' attorneys are from the National Prison Project and have acquired a superior skill in this area of the law. It is uncontradicted they operate on a national scale and thus have represented prisoners in other states in many important cases involving complex constitutional issues. The recognition of their expertise is evidenced by their teaching, publications and appearances before congressional committees, various state commissions and conferences on corrections.
Preclusion of other employment
The defendants' argument on this issue is substantially the same as made in Lund. They claim this consideration is not relevant because the "National Prison Project is an arm of the privately-funded American Civil Liberties Union [and] its financial ability to maintain this type of lawsuit will not be impaired by a denial or limitations of fees" (defendants' brief). Defendants further contend the Court must take into consideration that the attorneys are salaried employees and thus no award should be made in excess of their salaries, i. e., their entitlement must be nothing more than a percentage of their salary as related to the time spent on this case. This argument concludes that "any amount over the cost incurred by the National Prison Project, the salaries paid out by the National Prison Project would amount to a windfall" (oral argument on briefs).
This argument was foreclosed by the First Circuit in Reynolds v. Cooney, 567 F.2d 1166 (1977) wherein it stated:
Attorney's fees are, of course, to be awarded to attorneys employed by a public interest firm or organization on the same basis as a private practitioner. Id. at 1167.
Accord, Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978). In spite of this, the defendants press their position arguing that the appellate court has not answered the precise question 0907 limitation of fees to public interest firms by the amount of their salaries. I fail in understanding their interpretation of the words, "on the same basis as a private practitioner." They do not argue that the public interest firms should be paid only the additional difference between their salaries and what a private practitioner would receive. Instead, they flatly state the plaintiffs' attorney should be limited by the ceiling of their salaries. In any event, the Court concludes that both positions are untenable. I find nothing in decisional law or the Congressional history indicating that the losing defendant in a public interest case should gain an advantage by having fees computed differently for public interest firms. Such an approach would surely negate the purpose of "deterring illegal conduct by the losing party and other possible violators" and is at odds with the "private enforcement pattern [existing] in numerous federal statutes mandating fee awards"; nor would it "induce behavior which courts and legislatures find desirable".[3]
The attorneys for the National Prison Project were precluded, because of the time occupied in the prosecution of this controversy, from applying their time on other important civil rights cases. Certainly the National Prison Project has budgetary strictures and the important services it offers have to be allocated as priorities demand. The award of attorneys' fees, all of which goes to the organization, is a means by which representation can be expanded to more litigants in civil rights cases.
The very purpose of the statute is to provide fees that are adequate "to attract competent counsel . . ." to the type of complex litigation produced by this case. Senate Report No. 94-1011, 94th Cong.2d Sess. 1976 at 6; U.S.Code Cong. and Admin. News [1976], 5908, 5913. Neither the First Circuit nor any other circuit has ever 737 included *737 a collateral source doctrine in setting forth the controlling criteria in assessing a fee. See, e. g., King v. Greenblatt, supra; Thompson v. Madison County Board of Education, 496 F.2d 682, 689 (5th Cir. 1974); Moore v. Townsend, 525 F.2d 482, 486 (7th Cir. 1975); Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974); Lea v. Cone Mills Corp., 438 F.2d 86, 88, 90 (4th Cir. 1971). Finally, as the Fifth Circuit has stated,
This Court has indicated on several occasions that allowable fees and expenses may not be reduced because appellants' attorney was employed or funded by a civil rights organization and/or

tax exempt foundation or because the attorney does not exact a fee . . . Whether the attorney charges a fee or has an agreement that the organization that employs him will receive any awarded attorneys' fees are not bases on which to deny or limit attorneys' fees or expenses. Fairly v. Patterson, 493 F.2d 598, 606-7 (1971).
The contingent factor
The only fee available in welfare litigation is pursuant to 42 U.S.C. § 1988 which, by its very terms, makes such fee contingent on the success of the litigation. Private attorneys have several options: Take the case on a purely contingency basis as provided in the statute and receive payment only if successful, arrange for compensation from the client if unsuccessful, or refuse the case. Only the first option is open to legal services attorneys. They are obligated to represent all the poor and reimbursement is completely contingent on success. Lund v. Affleck, 442 F.Supp. 1109, 1116 (D.R.I. 1977), aff'd 587 F.2d 75 (1st Cir. 1978).
The plaintiffs urge that since the individual plaintiffs were not obligated to pay any fees, the award should be adjusted upward as an "incentive" award because of the contingency factor. In support they cite Parker v. Matthews, 411 F.Supp. 1059, 1068 (D.D.C.1976); Lockheed Minority Solidarity Coalition v. Lockheed, 406 F.Supp. 828, 834 (N.D.Cal.1976); Stanford Daily v. Zurcher, 64 F.R.D. 680, 685-686 (N.D.Cal.1974); and Arenson v. Board of Trade, 372 F.Supp. 1349, 1358 (N.D.Ill.1974).
Certainly the contingency factor is cause for a more liberal application of the consideration guiding a court in awarding a fee; Congress intended, through the fees award act, to encourage civil rights litigation to vindicate important rights guaranteed by law. Further, the American Bar Association canon of ethics permits consideration of the contingent nature of the case when determining a fee. Therefore, a court should consider the contingent nature of a case if the statutory goal of full compensation is to be met. However, the contingency factor should not, as this Court sees it, be analogized to a punitive award.
Legal writers and a number of courts have alluded to the punitive nature of fee awards in these kinds of cases. Even conceding for the purpose of discussion that the coercion of a fee is in the nature of a punishment, the fee award, nevertheless, should not be thought of within the same framework as exemplary or punitive damages.[4] The fee must be measured by the uncertainty of success and be within the bounds of reasonableness. If the probability of success is a virtual certainty or great, it follows the contingent factor diminishes in value. The measure of this value is not subject to a standard formula; rather, it requires the most delicate application of 738 judicial discretion, in order that the amount *738 ultimately awarded is fair and ethical. See Berger, Court Awarded Attorneys' Fees: What is "Reasonable", 126 U.Pa.L.Rev. 281, 326 (1977).
One must remember that no single criterion can be considered in isolation. The statute contemplates reasonable fees. As the First Circuit stated, "[i]t is not enough for the court to multiply a fixed rate by the number of hours claimed. The court must satisfy itself of the overall fairness and reasonableness of the fee under all circumstances." Lund v. Affleck, supra, at 77. Reasonableness by its nature is an amorphous standard. Applying such a standard inevitably requires the application of subjective justice; but the contours of any subjective determination must be shaped by the particular objective facts of the case. Considerations of a reasonable fee should not include the bad faith, or obstinacy of the defendant; these elements might be considered separately in a possible award of punitive damages.[5] However, the standards set forth in King and Johnson are the ingredients to be weighed in the quest for what is just, and none of these standards warrant any punitive considerations.
The contingency factor may justify an upgrading; but this element must be applied with care and be directly related to the degree of the uncertainty of success; when added to the computed fee, the total amount must be reasonable and ethical. In our desire to vindicate public wrongs, we have not cast aside ethical considerations that hold adequate compensation is that amount which enables a lawyer to serve his client effectively and at the same time preserves the integrity and independence of the profession; that a lawyer should avoid charges which either overestimate or undervalue his advice and service; and that a client's ability to pay is no reason for an excessive charge, though poverty may well require a lesser charge or none at all. American Bar Association's

Code of Professional Responsibility, Ethical Consideration 2-18, Disciplinary Rule 2-106; The Canons of Professional Ethics of the Rhode Island Bar Association, Canon 12. An over-expansive interpretation of the fees award act can only do violence to the legal profession. It is neither romantic or emotional to say that surely part of the lawyers' reward must be in his realizations that in a public interest case he is cast in the role of representing a "great deal more than his own interest", National Association of Regional Medical Programs, Inc. v. Weinberger, 396 F.Supp. 842 (D.D.C.1975) 0907 he acts in the nature of a private attorney general vindicating a congressional policy to eradicate a public evil. Though the contingent nature of the case is only one of the many considerations, it all too often is overemphasized to justify an unwarranted request by counsel.
Unfortunately, there does exist a wide discrepancy between fee awards in private antitrust cases (rates averaging $180 an hour) as against those in the area of civil rights (rates averaging $40 an hour) thus making private antitrust cases more attractive. Berger, supra, 126 U.Pa.L.Rev. at 310. However, this does not negate the fact that in public interest cases, all too often, it is the public that pays or an educational institution struggling against economic burdens that suffers. There is no question that the wrongdoer should be made to pay; but, on the other side of the coin, there is the overall public service that the defendant renders and this demands greater reserve in assessing an award. As Johnson teaches, "[t]he customary fee for similar work in the community" must be considered, 488 F.2d at 718; awarding such a customary rate, and a reasonable contingency amount when warranted, does not diminish attractiveness or discourage enforcement. The benefit of the class is served; a balanced and reasonable fee is not contrary to their interest and will not lose the attraction of competent attorneys. It is sophomoric to conclude that an attorney would not be interested in a $100,000 fee simply because 739 application of a more liberal standard might pay him $200,000. In denying a large incentive "bonus" *739 or "multiplier," this Court does not place a lower value on a civil rights fee award simply because the case serves a broader public purpose; rather, the Court intends to award full compensation for services rendered without designating an excessive fee or "bonus" that will injure the overall public interest served by the defendants. All these factors must be taken into consideration; the traditional notion of ethics is still viable. Paying a full and fair fee does not mean enforcement of these civil rights statutes is dependent on the charity of competent counsel.
Not in any way minimizing the superior work and accomplishment of plaintiffs' counsel and in no way saying they have overemphasized the contingency element, the Court must conclude that the contingency factor cannot be given great value. The egregious conditions existing in the Rhode Island correctional system could hardly escape condemnation through a judicial declaration of unconstitutionality.
Customary fee in the community; amount involved and results obtained; awards in similar cases.
The plaintiffs' counsel urge this Court to consider the customary fee for similarly complex civil rights litigation done outside the State of Rhode Island as well as in Rhode Island. The defendants object claiming it is "without foundation", "contrary to the ruling in King v. Greenblatt, supra", that nothing "in King even hints at the idea that the complexity of the issues and the `unusualness of the subject matter' . . . should expand to a national level the scope of the community."
The First Circuit in King cited with approval and accepted the criteria set forth in Johnson, where it is specifically stated that "[t]he reasonableness of a fee may also be considered in the light of awards made in similar litigation within and without the court's circuit", 488 F.2d at 719; it then reviewed cases from their own and other circuits in determining the appeal before them. Furthermore, the Johnson court also said that "[a]n attorney specializing in civil rights cases may enjoy a higher rate for his expertise than others, providing his ability corresponds with his experience." Id.
The customary fee in the Rhode Island community was established through the affidavits of three practitioners in this state reciting their own billing rates for similar complex litigation. Mr. Ralph Gonnella recites that his billing rate for similar complex federal litigation is seventy-five ($75.00) dollars to one hundred ($100.00) dollars, "depending upon the complexity of the litigation and the nature of the issues"; Mr. Milton Stanzler, a member of the bar since 1948, states that in his opinion, "a reasonable fee for attorneys involved in complex federal litigation and civil rights litigation having experience of 25 years or more at the bar, would be the sum of $100.[00] per

hour"; without impugning their affidavits, the Court must interstitially note that both these attorneys have fee cases pending in this Court. Finally, Mr. Malcolm Farmer III sets forth that based on the hourly rates charged by attorneys in his firm, the "following fees are not inconsistent with the standard in Rhode Island: (I) for an attorney of five years' experience at the bar: $60.00 per hour; (II) for an attorney with seven years' experience at the bar: $70.00 per hour; and for an attorney with twenty-five years' experience at the bar: $85.00 per hour"; he further states that no distinction is made between the time spent in court as against time spent out of court and that, "it would not be inappropriate for a somewhat higher rate to be justified on the basis of the expertise of the attorney" in the area of litigation.
In other circuits we find the following: Ruiz, et al. v. Estelle, et al., C.A. No. 5523 (E.D.Tex.1977), a prisoner civil rights case, awarding $75 an hour using the Johnson criteria; Stanford Daily v. Zurcher, 64 F.R.D. 680, 684-85 (N.D.Cal.1974), an action involving police misconduct, granting $50.00 an hour 0907 the Court appears to have discounted the higher billing rates because the attorneys were not in their area of expertise and it should be 740 noted that this is a 1974 case; Guajardo v. Estelle, 432 F.Supp. *740 1373 (S.D.Tex.1977), a civil rights prisoner case, awarding lead counsel $115-125 an hour, second counsel $70-80 an hour and third counsel, $50-60 an hour. In the area of antitrust, awards have ranged from a low of $128.00 an hour to $500.00 per hour. See Arenson v. Board of Trade, 372 F.Supp. 1349 (N.D.Ill.1974); TWA v. Hughes, 312 F.Supp. 478 (S.D.N.Y.1970).
Focusing on prior awards in this Court and on those awarded by the First Circuit, we find that $60.00 per hour was awarded in a prisoner case for services performed in 1974 and $75.00 per hour thereafter, which included fee petition in the District Court. These amounts were upheld by the First Circuit, which reduced to $50.00 an hour the appellate work on the fee issue. Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977). However, this bare recitation is misleading because the Court of Appeals did say that the award for the work before this Court was indeed very high and that had it not been for the fact that three appeals had been taken in the suit they would have been tempted to remand the case for reconsideration it 0907 concluded, "[t]he amounts though high cannot be considered unconscionable". In Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978), the Court sustained an award of $55.00 per hour and $60.00 per hour recognizing the erosion of the dollar over a five-year period. In Save Our Sound Fisheries v. Callaway, C.A. No. 5297 (D.R.I. March 6, 1978, unpublished), brought under the provisions of the Marine Protection, Research and Sanctuaries Act of 1972 and the Federal Water Pollution and Control Act of 1972, this Court awarded a fee of $75.00 per hour to one of the attorneys who had been before the bar twenty years and usually billed at that rate.
The awards in other circuits, set forth supra, are persuasive but certainly not controlling. In the last analysis the award in this case must be reasonably coextensive with awards made by the First Circuit in other similar cases; such a balancing is necessary for an equitable resolution of the problem at hand. In Lund, the appellate court approved an award of $60.00 an hour. It follows that it must be determined whether the case at issue is more or less complex, etc. than Lund. In assessing Lund and its companion cases, Palmieri v. Affleck and Inmates of Boys' Training School v. Southworth, decided in one opinion, this Court said, 422 F.Supp. at p. 1116,
I find these cases had both novelty and difficulty requiring a high degree of skill for preparation and presentation which these attorneys satisfied to a very high degree. In Palmieri, careful legal and factual analysis of United States Supreme Court precedent was required to evaluate the State's position denying factual similarity of the instant case. The complexities involved in these kinds of cases demand the skill of a highly intelligent lawyer. To this Court's knowledge Lund was a case of national first impression. Lund involved questions of pendent jurisdiction of unconstitutional claims, 28 U.S.C. § 1343; need to reach constitutional challenge, 28 U.S.C. § 2281; class certification and interpretation of the Social Security Act; Inmates of the Boys' Training School involved enforcement of thirty-six page decree of detailed procedures to be followed by the defendants on behalf of a class of juveniles.
The same is true of this case; however, here there was a two-week trial involving a complex, complicated factual situation involving approximately 700 prisoners in several institutions. The Court quite agrees with the plaintiffs' counsel that it was particularly difficult to identify and prove the constitutional violations. A comprehensive factual record had to be placed before the Court which required testimony from seven nationally-known experts from six different disciplines. Here, unlike Lund, the tactical handling of the case needed more mature judgment and

skilled advocacy. This was one of the first cases which attacked practically an entire prison operation affecting all inmates, pretrial and convicted; the end result was the promulgation of a sweeping order establishing minimum 741 constitutional standards and implementing for the first time in Rhode Island *741 a special master. The plaintiffs' attorneys needed the utmost skill to present, in a coordinated manner, complex facts. The case had the problems present in Lund and more. Striving to adhere to the teachings of our own circuit judges in light of what other circuits have said, I conclude that more than $60.00 per hour, as awarded in Lund, is justified here. Exercising my discretion, King, supra, 560 F.2d at 1026, I conclude a fair award should be computed on the basis of the following hourly rates:
A) MATTHEW L. MYERS 0907 Mr. Myers acted as lead counsel with the prime responsibility for the presentation of all the evidence. He seeks $70.00 an hour. It is true this amount represents a $10.00 per hour increase over the amount approved in Lund; it is also true, as already stated by the Court, that this case was more intricate and, unlike Lund, involved a lengthy trial requiring intensive preparation and trial presentation. Moreover, the Court is well aware that the effect of inflation during the past year and one-half makes a direct comparison between Lund and the present case illusory. Therefore, justice appears to dictate an increase over the rate awarded in Lund.
In the final analysis, the overall compensation awarded to each attorney must be fair and reasonable. With regard to Mr. Myers, the Court concludes that a rate of $75.00 for trial time and $70.00 out of court is entirely appropriate. I reject the defendants' argument that it should be less because at the time of the litigation Mr. Myers had only four years' experience. This is not persuasive 0907 the number of years before the bar is not the touchstone that determines the worth of an attorney's fee. "[L]ongevity per se, however, should not dictate the higher fee. If a young attorney demonstrates that skill and ability, he should not be penalized for only recently being admitted to the bar"; furthermore, "[a]n attorney specializing in civil rights cases may enjoy a higher rate for his expertise than others, providing his ability corresponds with his experience". Johnson, supra, at 719. Mr. Myers is indeed an expert whose expertise and trial experience in many states of this country cannot be questioned.
Out-of-court time requires a lower fee. The First Circuit criticized the application of an across-the-board rate without regard "to the difficulty of the work, the results achieved, and all other relevant factors", King, supra, at 1027-1028. This is a difficult issue. I agree that in this case the trial work demands the premium rate which may not be so in other cases, but how much less Mr. Myers should be paid for preparation, with all its demands on legal skills, should not be substantial. However skillfully it was tried, the secret was the intelligence used in developing and welding together all the facts into a cohesive pattern. It seems to me that $70.00 per hour for this work is reasonable and fair.
The Court notes that application of these rates gives rise to a reasonable increase over the rates awarded in Lund. Referring to the breakdown of Mr. Myers' hours which is set forth below, the average hourly compensation for his services in this case is $70.39. This 17 percent increase over Lund is accounted for by the greater complexity of this case and the 9 percent inflation rate[6] which has prevailed in our economy since the award in Lund was made.
B) ALVIN BRONSTEIN 0907 Mr. Bronstein is the Executive Director of the National Prison Project of the American Civil Liberties Union Foundation. He has been a member of the bar for approximately 25 years and has vast experience in civil rights litigation; in addition, he is a teacher, lecturer, and writer. His credentials are indeed impressive and it may be said he is one of the foremost national authorities in his field. He seeks $125.00 an hour for his services, which amount more than doubles the rates that have been previously approved in this circuit. 742 Conceding all the *742 qualifications Mr. Bronstein possesses, such a dramatic increase cannot be justified in the light of awards in other cases in this circuit and in the interest of overall fairness and reasonableness. The Court does feel, however, that Mr. Bronstein is deserving of a higher hourly rate than Mr. Myers.
Mr. Bronstein's greatest contribution to this case was in a supervisory capacity, where he could draw on the depth of his knowledge and rich experience to give to the preparation of the case the high gloss which was so evident to the Court in the presentation of a complex evidentiary record comprised of testimony on the various specialized fields of corrections, and in the legal arguments articulated so well in pre-and post-trial memoranda. In these endeavors his rate of compensation should be significantly higher than that allowed Mr. Myers. However,

Mr. Bronstein's courtroom skill, though of the highest caliber in this Court's experience, was not integral to the successful presentation of plaintiffs' case in light of the commendable effort put forth by Mr. Myers, who acted as lead trial counsel while under the supervision of Mr. Bronstein. Therefore, the Court will set a lesser premium on Mr. Bronstein's in-court work as compared to that of Mr. Myers.
Taking the hourly rates allowed for Mr. Myers' work as a starting point and accounting for unique capabilities of Mr. Bronstein, the Court will allow compensation at the rate of $80.00 per hour in court and $75.00 out of court for Mr. Bronstein.
C) EDWARD I. KOREN 0907 Mr. Koren is a staff attorney with the National Prison Project and seeks $75.00 an hour for his services. He was admitted to the District of Columbia bar in 1969 and since that time has had a great breadth of experience in the civil rights area including litigation, directorships of various projects involving prisoners' rights issues, service with the Commission of Corrections for the State of New York and as a writer of several publications in this field.
It is difficult to understand why the plaintiffs' attorneys seek a higher hourly rate for Mr. Koren than they do for Mr. Myers. Mr. Myers acted as lead counsel in this case, while Mr. Koren's major contribution came from his out-ofcourt work. Despite Mr. Koren's superior experience, his compensation in this category should not exceed that of Mr. Myers. While he was present in court during the trial of this case, Mr. Koren did not actively participate in the presentation of plaintiffs' case. Therefore, I conclude that $70.00 per hour across the board is a fair rate for Mr. Koren's legal work.
However, it is incumbent upon this Court "to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it." King, supra, at 1027. In the analysis of the affidavits, infra, this guide is considered. The task was not easy; the legal practice is not subject to a mathematical formula that can be scientifically applied. Mistakes are inevitable; bright line distinctions are not always possible.
As the Court has set forth below, certain of Mr. Koren's hours were spent examining ACI records in search of evidence of incidents of violence at the prison. While Mr. Koren's experience in prison matters may have enhanced his ability to perform this task, the work was essentially non-legal in nature and should be compensated at a rate of $30.00 per hour (see below).
D) ROBERT MANN 0907 Mr. Mann served as local counsel and graduated law school in 1973. He has worked with the Rhode Island Legal Services, and since July, 1974 has been in private practice. He has been active in public interest and civil rights litigation, having acted as counsel in a number of cases in Rhode Island. His exposure and experience does not equal that of the other attorneys and his efforts appear to have been primarily that of an 743 assistant. As the attorney for the litigants, he participated in the trial as a co-counsel *743 but without any appreciable trial work as such, i. e., interrogation and cross-examination of witnesses. This is not to say his court presence wasn't required 0907 he did, indeed, represent the plaintiffs and the Court noted he was active throughout the trial in conferring with the prisoner plaintiffs who were in court and in numerous "counsel table" conferences with Mr. Myers. Here again, the Court feels no distinction can be drawn between in- and out-of-court time. A $60.00 hourly rate is fair and reasonable.
However, Mr. Mann also has sought compensation for work of an investigatory nature, such as checking records at a nearby fire station. For this work the Court will allow a fee of $30.00 per hour because it required neither legal skill nor specialized experience (see below).
In other instances Mr. Mann has sought compensation for mere errand-running, such as picking up people at airports and obtaining copies of depositions. For these hours the Court will allow no compensation.
These hourly rates having been established, the Court scrutinized the affidavits of recorded hours to determine if there was a proper utilization of time or a duplication of effort; it further examined the plaintiffs' work to see if what was recorded was legal work in the strict sense or rather investigative, clerical, compilation of facts and statistics or other work which could have been accomplished by non-lawyers. The Court also took into account the

objections set forth by defendants to certain of the entries in plaintiffs' time sheets. Generally, defendants contended that certain hours billed by Messrs. Koren and Bronstein are duplicative and should be disallowed, while other hours billed by Mr. Koren involve work of a non-legal nature and therefore should be disallowed.
After a preliminary analysis of plaintiffs' affidavits and defendants' objections, the Court informed the parties of its concern over the amount of hours billed by plaintiffs' attorneys in several categories into which their work could be broken down. A supplemental hearing was held on January 26, 1979 to discuss these hours. Based on the record and the arguments presented at that hearing, the Court finds as follows with regard to these specific issues:
1) Conference Hours
The plaintiffs' attorneys logged approximately 208 hours in conference, including time spent on the telephone and in communication by letter. The Court reviewed many specific entries of this type at its hearing of January 29 and now finds plaintiffs' entries to be justified. The attorneys approached the preparation and trial of this case in a systematic manner and divided labor among themselves in order to utilize efficiently their resources. In most instances, conferences were held for the coordination of these efforts or for the purpose of exchanging information learned by one attorney but important to another in his area of primary responsibility. In addition, conferences were held during the weeks prior to trial for the purpose of establishing schedules for the presentation of witnesses and contingency plans in the event that the trial's progress indicated that a change in the planned sequence was appropriate. The Court takes note that plaintiffs' evidentiary presentation was coherent and well organized despite its inclusion of expert testimony on every aspect of prison life. This attests to the value of such pre-trial conferences.
Additionally, conferences were held between Mr. Myers, as lead counsel and Mr. Bronstein, as advisor. The Court accepts Mr. Myers' argument that such discussions were valuable to him and to the quality of plaintiffs' case as a means by which he could call on the superior experience and expertise of the Director of the National Prison Project.
For these reasons the Court will allow full compensation for the conference hours logged by plaintiffs' attorneys. In the context of litigation as complex as this, the Court will not penalize plaintiffs' attorneys for taking great care in the presentation of a truly commendable trial record, a record which, in turn, enhanced the accuracy of the Court's findings and the efficacy of the injunctive relief it eventually entered.
744 *744 2) Hours Billed for Tours and Depositions
In several instances Mr. Mann and another of plaintiffs' attorneys seek compensation for their presence at a prison tour or witness deposition. Despite plaintiffs' argument that each attorney contributed to the conduct of the tour or deposition he attended, the Court will allow compensation for only one attorney on each of these occasions. In the computation of fees set forth below, the Court has equalized the burden of exclusion of these hours by deducting one-half of the excluded hours from the total allowed to the attending National Prison Project attorney and the remaining half from the total allowed to Mr. Mann.
3) Non-Legal Work
The Court will allow compensation for hours spent in meetings and interviews with inmates because these hours may be viewed either as witness preparation or as attorney-client communications. However, the Court will apply a lesser rate to investigatory tasks such as records-checking, and it will allow no compensation for work which may be characterized as "errand running" (see below).
In accordance with the rates and hours allowed as described above, the Court hereby makes the following awards for each of plaintiffs' attorneys:

MATTHEW L. MYERS

Total Hours Requested

479.5

less duplicative hours in tours

and depositions[A]

16.

_____

Total Hours Allowed

463.5

in court

37 hrs. @ $75.00/hr. =

out of court 426.5 hrs. @ $70.00/hr. =

Total Award

$ 2,775.00 29,855.00
__________ $32,630.00

EDWARD I. KOREN

Total Hours Requested

228.

less duplicative hours in tours

and depositions[B]

1.75

______

Total Hours Allowed

226.25

in court

29 hrs. @ $70.00/hr. =

out of court 157.75 hrs. @ $70.00/hr. =

investigative

39.5 hrs. @ $30.00/hr. =

Total Award

$ 2,030.00 11,042.50 1,185.00
__________ $14,257.50

ALVIN T. BRONSTEIN

Total Hours Requested

Total Hours Allowed

in court

20. hrs. @

out of court 122.5 hrs. @

Total Award

142.5 142.5 $80,00/hr. = $75.00/hr. =

$ 1,600.00 9,187.50
__________ $10,787.50

ROBERT MANN

Total Hours Requested

515.5

less duplicative hours in tours

and depositions[C]

17.25

less hours for non-legal work for

which no compensation will be

allowed[D]

6.75

______

Total Hours Allowed

491.5

in court

36.5 hrs. @ $60.00/hr. =

out of court 438 hrs. @ $60.00/hr. =

investigative

and other

non-legal

17 hrs. @ $30.00/hr. =

Total Award

$ 2,190.00 26,280.00
510.00 __________ $28,980.00

The Court also will allow an award of costs and expenses, as requested by plaintiffs, in the amount of $352.39 for Mr. Mann and $7,874.40 for the National Prison Project. Thus, the total award to plaintiffs' attorneys may be computed as follows:

ROBERT MANN

fees expenses

$28,980.00 352.29
__________ $29,332.29

NATIONAL PRISON PROJECT

Mr. Myers' fees Mr. Koren's fees Mr. Bronstein's fees costs and expenses

$32,630.00 14,257.50 10,787.50 7,874.40
__________ $65,549.40

The Court is well aware that this award to the National Prison Project is more than $11,000 below the total fee requested by the A.C.L.U. attorneys. However, the Court is satisfied that the present award is just and reasonable in light of decisional law under the Attorney's Fees Act, the characteristics of this litigation, and the contributions of each attorney to the successful prosecution of this case.

An order will be prepared entering judgment for the plaintiffs in the amounts set forth above.

[1] This statement is based on the newspaper publication of the comments of various legislators and certain others of the general public. The long history of prisoner trials in this Court has given rise to more than a passing reaction in the past. The coercive nature of the Court's orders is not easily accepted by the legislative and executive branches of this government. At one point, it was reported that thirteen state senators joined in a resolution that Judge Pettine be impeached for issuing "unconstitutional" orders concerning the prison.
[2] In oral argument the assistant attorney general representing the defendants stated that he did not question the actual hours the plaintiffs said "they put in on the case" because it "would be futile to go through crossexamination as to each particular hour. I do question duplicative hours; non-lawyer hours".
It was also stipulated that the Court could accept the affidavits, introduced as exhibits, as being the testimony the individuals would have given had they testified in person.
[3] See Awards of Attorneys' Fees to Legal Aid Offices, 87 Harv.L.Rev. 411 (1973).
[4] This is not to say that awards in the nature of punishment may not be made in an appropriate case. Punitive and exemplary awards must require consideration of certain traditional factors such as malicious, wanton or oppressive conduct. See, such historic teachings as Hale, Damages §§ 87, 88 n.2 (2d ed. 1912); International Union, United Auto., Aircraft and Agr. Implement Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958). I suppose a skilled advocate might persuasively argue that it should be no different in a civil rights case than in a tort action.
However, I take no position today as to the merits of the foregoing.
[5] See n.4 supra.
[6] Eckstein, O., "The New Reality", Data Resources Review, January, 1979, Vol. VIII, Number 1, p. 1.1.

[A] This figure represents one-half of the time Mr. Myers spent on a tour or at a deposition with Mr. Mann. [B] This figure represents one-half of the time Mr. Koren spent on a tour or deposition with Mr. Mann. [C] This figure represents one-half of the time Mr. Mann spent on a tour or deposition with Mr. Mann or Mr. Meyers or Mr. Koren. [D] Hours billed for "errand-running".
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 616 F.2d 598 (1980)
Nicholas PALMIGIANO et al., Plaintiffs, Appellees, v.
J. Joseph GARRAHY et al., Defendants, Appellants. Leonard JEFFERSON et al., Plaintiffs, Appellees, v.
Bradford E. SOUTHWORTH et al., Defendants, Appellants.
Nos. 79-1183, 79-1185.
United States Court of Appeals, First Circuit.
Submitted November 9, 1979. Decided March 3, 1980.
599 *599 Dennis J. Roberts, II, Atty. Gen., and Eileen G. Cooney, Sp. Asst. Atty. Gen., Providence, R. I., on brief for defendants, appellants.
Matthew L. Myers, Providence, R. I., Alvin J. Bronstein, Washington, D. C., and Robert Mann, Providence, R. I., on brief, for plaintiffs, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
This is another round in the litigation about conditions at the Adult Correctional Institutions in Rhode Island. See Palmigiano v. Garrahy, 599 F.2d 17 (1st Cir.1979). In this appeal the state defendants contest an award of attorney's fees totalling $115,483.75 made to the plaintiff prisoners under the Civil Rights Attorney's Fees Awards 600 Act of 1976 (the Fees Act), Pub.L.No. 94-559, *600 90 Stat. 2641 (amending 42 U.S.C. § 1988).[1] The prisoners were represented by four lawyers: three were employed by the National Prison Project of the privately funded American Civil Liberties Union and the fourth, Robert Mann, was in private practice. The defendants accept the fee award as it relates to Mr. Mann's services. In addition, they concede that fees may be awarded for the services of attorneys employed by a public interest organization such as the National Prison Project, and that the district judge weighed each of the twelve factors we have said must be considered in making a fee award under the Fees Act. See King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Nevertheless, the defendants contend that the district court erred in failing to consider the salaries of the National Prison Project lawyers in computing a reasonable fee.
The district court understood the defendants to be arguing that the award for these lawyers' services must be limited to the actual cost to the National Prison Project in litigating the plaintiffs' lawsuits, as represented by the salaries paid counsel for the time spent on the cases.[2] In rejecting this argument, the district court considered itself bound by decisions of this court, particularly Lund v. Affleck, 587 F.2d 75 (1st Cir.1978) and Reynolds v. Coomey, 567 F.2d 1166 (1st Cir.1978), to compensate counsel on the same basis as private practitioners. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979); Jefferson v. Southworth, C.A. No. 77-544, slip op. at 18 (D.R.I. February 22, 1979). In addition, it found no support in other case law or the legislative history of the Fees Act for computing fees differently for a public interest organization and thought that lesser compensation would undermine certain purposes of fee awards: to deter illegal conduct, to encourage private enforcement of civil rights laws, and to attract competent counsel. Palmigiano v. Garrahy, supra, 466 F.Supp. at 736. The court also noted that the National Prison Project was prevented by its work in the present cases from applying its resources to other civil rights litigation; it added that the fee award in these cases would help to finance other such lawsuits. Id.

Because the district court relied substantially on first circuit cases in refusing to give weight to counsels' salaries, we begin by reviewing our own precedent. In King v. Greenblatt, supra, 560 F.2d at 1026-28, we announced that we would require courts awarding fees under the Fees Act to consider the twelve factors listed in Johnson v. 601 Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)[3] and affirmed *601 a fee award to private counsel that seemed reasonable under the Johnson criteria. A lawyer's salary was not among the twelve criteria cited. To the contrary, the Johnson test focussed largely on the reasonable market value of the services rendered.
In Reynolds v. Coomey, supra, we were faced with an appeal from the denial of attorney's fees for the services of NAACP Legal Defense Fund staff attorneys. Reversing, we stated: "Attorney's fees are, of course, to be awarded to attorneys employed by a public interest firm or organization on the same basis as to a private practitioner." 567 F.2d at 1167. We instructed the district court to determine reasonable attorney's fees in the light of King v. Greenblatt. Id.[4] Likewise, in Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir.1978), we remanded for an award of attorney's fees for representation by the publicly funded Puerto Rico Legal Services, Inc., citing the above quoted language from Reynolds v. Coomey. See also Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.1979), remanding the case a second time for a fee award consistent with King v. Greenblatt.
The next case involving a fee award to a legal services organization was Lund v. Affleck, supra. In that case, unlike Reynolds and Perez, the district court had awarded fees, which as here were assessed against Rhode Island officials. Although it is not altogether clear from our opinion, the Rhode Island defendants argued on appeal both that legal services organizations may not recover attorney's fees and, in the alternative, that recovery should be limited to their costs. 587 F.2d at 76; Brief for Defendants at 20-21, 25. We considered the first argument foreclosed by our recent decision in Perez, and upheld awards that had been made in accordance with King v. Greenblatt, with reference to billing rates of $55 and $60/hour. Id. at 76-78.
A review of these cases demonstrates that we have previously held that public interest organizations (whether privately or publicly funded) be awarded attorney's fees under the Fees Act on the same basis as private practitioners. In Lund, especially, we were not impressed with the argument that attorney's fees to a legal services organization should be limited to the organization's costs. In this case the defendants would have us take a new approach. We decline to do so, and take this opportunity to explain why we adhere to our previously stated views.
First and foremost, we think that compensating public interest lawyers the same way as private practitioners is consistent with the legislative history of the Fees Act. The Senate Judiciary Committee Report, which states that fees are to be awarded according to the standards in Johnson v. Georgia Highway Express, Inc., draws no distinction between employees of public interest organizations and members of the private bar. S.Rep.No. 1011, 94th Cong., 2d Sess. 6, reprinted in [1976] U.S.Code Cong. & Admin.News, pp. 5908, 5913. Indeed, the Senate Report cites with approval Davis v. County of Los Angeles, 8 EPD ¶ 9444 (C.D.Cal.1974), a Title VII case in which the court said, in determining the amount of attorney's fees to award:
[I]t is not legally relevant that plaintiffs' counsel ... are employed by the Center for Law in the Public Interest, a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner ...
Id. at ¶¶ 9444-45. The court made its award by calculating reasonable hourly rates and referring to the factors mentioned in Johnson v. Georgia Highway Express, Inc. Id. See also Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483, 486 (W.D.N.C.1975), also cited in the Senate Report. Likewise, the House Judiciary 602 Committee Report, H.R.No. 1558, *602 94th Cong., 2d Sess. 8 n.16 (1976), cites civil rights cases squarely holding that fee awards may not be reduced because the prevailing party's attorney is employed by a civil rights or tax exempt organization. Torres v. Sachs, 538 F.2d 10, 13 (2d Cir.1976) (award for services of Puerto Rico Legal Defense and Education Fund upheld); Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir.1974) (award to Lawyers Committee for Civil Rights Under Law reversed as too small).

Furthermore, we think that allowing full compensation for the services of public interest lawyers serves the clearly expressed legislative purpose of encouraging private enforcement of civil rights laws. S.Rep.No. 1011, supra, at 5; H.R.Rep.No. 1558, supra, at 2. As the district court pointed out, the National Prison Project, like other such organizations, has finite resources, and a full fee award will enable it to undertake further civil rights litigation.[5]
Second, we note that other courts have recently and convincingly rejected the notion that fee awards under the Fees Act (42 U.S.C. § 1988) or comparable statutes should be reduced or keyed to an attorney's salary when a prevailing party has been represented by a public interest organization. In Rodriguez v. Taylor, 569 F.2d 1231, 1247-48 (3rd Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978), an ADEA case, the third circuit discussed this issue at length and concluded that the district court had abused its discretion in considering the salaries of legal services lawyers in setting fees. Other cases refusing to set fees in accordance with salaries are Lackey v. Bowling, 476 F.Supp. 1111, 1116-17 (N.D.Ill.1979) (award to legal services organization under § 1988) and Gunther v. Iowa State Men's Reformatory, 466 F.Supp. 367, 368-69 (N.D.Iowa 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir.1977), rev'd on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work).[6]
Third, we are not convinced by the defendants' suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., S.Rep.No. 1011, supra, at 6; Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir.1978). We do not think, however, that compensating a public interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649.
Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not 603 persuade us to *603 revamp our entire approach to attorney's fees. In that case, the court advocated a cost plus
reasonable profit approach to calculating attorney's fees in a Title VII case where the federal government was the defendant. We are not at this point convinced that this approach would yield a fairer calculation of attorney's fees in a case like Copeland, and, for reasons stated above, we do not think a cost or salary related approach to computing attorney's fees in a case like this would be legitimate. We note, in any event, that the panel decision in Copeland has been vacated, that the case has been reheard en banc, and that a decision is still forthcoming. See Copeland v. Marshall, 48 U.S.L.W. 2017-18 (D.C.Cir. July 10, 1979).
Judgments affirmed.
[1] Two cases have been consolidated for appeal purposes. Palmigiano v. Garrahy was a successful class action challenging the overall conditions at the Rhode Island prisons as violative of the eighth amendment. 443 F.Supp. 956 (D.R.I.1977). In that case the district judge awarded $86,655.00 in attorney's fees. 466 F.Supp. 732 (D.R.I.1979). Jefferson v. Southworth was a successful challenge to a prolonged "lock-up" at the state's maximum security facility. 447 F.Supp. 179 (D.R.I.1978). In that case attorney's fees of $28,828.75 were awarded. C.A. No. 77-544 (D.R.I., unpublished opinion filed February 22, 1979, and order entered March 9, 1979).
[2] At a hearing about attorney's fees in Palmigiano v. Garrahy, the state defendants argued to the district court that "it would be improper ... to award these attorneys [the salaried employees of the National Prison Project] an amount in excess of their salary as computed and reflected in percentage of time spent on this case[.]" On appeal, the state defendants' position is somewhat unclear, but appears to be that the actual cost of the litigation, as indicated by counsels' salaries, is one factor that should have been considered by the district court. Ordinarily a party may not shift his position on appeal; if there has been a shift in this case, it is immaterial to the outcome of the appeal.

[3] The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the question presented; (3) the skill required to perform the legal services; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; (12) awards in similar cases.
[4] Although Reynolds was a Title VII case, we treated the fee request the same as we would a request under the Fees Act.
[5] The district court so observed in the course of addressing the fourth King v. Greenblatt factor: preclusion of other employment. Palmigiano v. Garrahy, 466 F.Supp. 732, 736 (D.R.I.1979). We cannot tell whether the district court merely refused to reduce the fees in part because they would help finance more litigation or whether the district court actually enhanced the award because the instant case precluded the National Prison Project from doing other work. We think it would have been inappropriate to apply the "preclusion" factor to enhance the award in a case like this, where counsel were not working for profit. See Lamphere v. Brown University, 610 F.2d 46, 47 (1st Cir.1979) (the "preclusion" factor only applies when counsel had to forego more profitable opportunities). But, because we cannot be sure this was done and the defendants have made nothing of this issue on appeal, we see no need to disturb the award on this account.
[6] The only cases we have found that hold to the contrary are Page v. Preisser, 468 F.Supp. 399 (S.D.Iowa 1979) and Alsager v. District Court of Polk County, Iowa, 447 F.Supp. 572 (S.D.Iowa 1977), decided by the same judge. These cases stand for the proposition that § 1988 awards to organizations whose employees are salaried should generally be limited to salaries plus other costs (such as overhead), at least where the result would not be to undermine the deterrent or inducement to settle effects of fee awards, or to undervalue the services rendered.
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 317 F.Supp. 776 (1970)
Nicholas A. PALMIGIANO et al. v.
Anthony P. TRAVISONO et al.[*]
Civ. A. Nos. 4296, 4348.
United States District Court, D. Rhode Island.
August 24, 1970.
7778 *777 *778 Hayden C. Covington, Barrington, R. I., Cary J. Coen and Barry A. Fisher, R. I. Legal Services, Inc., Providence, R. I., and Stanley A. Bass, N. A. A. C. P. Legal Defense and Educational Fund, Inc., New York City, for plaintiffs.
Herbert F. DeSimone, Atty. Gen., and Donald P. Ryan, Asst. Atty. Gen., Edward F. Burke, Ira L. Schreiber, Dept. of Social Welfare, Providence, R. I., for defendants.
779 *779 OPINION
PETTINE, District Judge.
STATEMENT OF THE CASE
These actions were instituted by six inmates in the "awaiting trial" section of the Adult Correctional Institutions of Rhode Island (A.C.I.), in behalf of themselves and all others who are awaiting trial against eleven named defendants, all of whom are state or federal officials responsible for the custody and care of persons confined in the awaiting trial section of the A.C.I.[1] Jurisdiction has been invoked under 28 U.S.C. § 1343 (3) and (4) (1964). Relief is sought under 28 U.S.C. § 1361 (1964) against those defendants who are federal officers, and under 42 U.S.C. § 1983 (1964) and related provisions[2] against the defendants who are state officials. The plaintiffs pray for declaratory,[3] injunctive, and other appropriate relief against the enforcement of certain state statutes, regulations and customs relating to the care and treatment received by them in the awaiting trial unit.
The A.C.I. operates as several institutions in one, and one section, the unit in which plaintiffs are housed, constitutes what in most states would be known as a county or city jail. Because of the compactness of the State of Rhode Island and the ready accessibility of the A.C.I. from any point within the state, this single, centralized correctional facility is used as a pre-trial detention center as well as a post-conviction adult correctional institution or penitentiary. It should also be pointed out that, under 18 U.S.C. § 4002 (1964), the federal government may enter into contractual arrangements with state authorities for the maintenance and safekeeping of federal prisoners, including those awaiting trials in federal courts. This explains the inclusion of federal prisoners as parties plaintiff and federal officials as parties defendant in this action.
The plaintiffs have asserted that they have been discriminated against in various ways as inmates of the awaiting trial unit. As an example of the alleged discriminatory practices, plaintiffs claim that they are not eligible for certain rehabilitative programs and services unless and until they plead guilty or are convicted and are transferred to another section of the A.C.I. Plaintiffs also allege that they have suffered deprivations of constitutional rights in 780 common *780 with inmates of other units of the A.C.I. For instance, they allege that tables in the dining area are unclean; that they are not given sufficient supplies for personal cleanliness; that restrictions on visitations with outsiders are unduly severe; and that the current practices of institutional officials in opening, reading and censoring mail are unconstitutional.

Plaintiffs requested that a three-judge court be impanelled.[4] The request was granted on July 3, 1970,[5] and a hearing on the merits on all issues in the case has been scheduled to begin early in 1971. On July 8, 1970, plaintiffs filed a motion for a temporary restraining order pending the hearing on the merits. In this motion are presented many of the same issues which are involved in the case of chief. The seriousness of the allegations made concerning censorship of mail, including alleged infringement of the "preferred" rights[6] contained in the First Amendment, interference with the right to the effective assistance of counsel in preparation for trial under the Sixth[7] and Fourteenth[8] Amendments to the Constitution, and denial of free access to the courts,[9] has impelled me to consider those portions of the motion for temporary restraining order pertaining to such censorship, and to defer all other questions to the entire court of three judges. I so advised counsel, and an evidentiary hearing has been held and arguments heard regarding censorship of mail.
ALLEGATIONS OF PLAINTIFFS CONCERNING MAIL CENSORSHIP
Plaintiffs contend that defendants arbitrarily, capriciously, and without good cause or reason related to the maintenance of order at the A.C.I., persist in opening, reading and censoring plaintiffs' incoming and outgoing mail, including correspondence with courts, government officials, and attorneys. Among other things, they claim that opening and censoring of mail constitutes an invasion of a constitutionally-guaranteed right of privacy, that it constitutes an intrusion upon the attorney-client privilege, and that it hampers preparation for trial. They assert, further, that the actions of prison officials have placed a "chilling effect" upon their right of access to the courts, upon their right to petition representatives or agents of government, and upon their right to effective representation by counsel. They claim that the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments are being violated by defendants. Plaintiffs seek an order restraining defendants from delaying, opening, reading, censoring or tampering in any way with plaintiffs' incoming or outgoing mail.
FINDINGS OF FACT
Although the opinions of the respective parties to this action concerning the necessity for censorship vary widely, the facts, as presented at the evidentiary hearing, are uncontradicted in any substantial or material respect.
1) Prisoners in the A.C.I., both state and federal, are housed in a separate unit or section while awaiting trial. The inmates of the awaiting trial section are, for the large part, persons who have been unable to afford bail. Although 781 the A.C.I. is divided into several units or sections, its administration is centralized *781 and in many of its aspects it is operated as a single institution. For example, the rules, procedures and practices followed with respect to the handling of mail are, with minor exceptions, applicable throughout the A.C.I., to mail of convicted prisoners as well as to mail of those awaiting trial.
2) Censorship Authorization. When a prisoner enters the A.C.I., if he desires mail privileges he is required to sign an "Authorization for Disposition of Mail," authorizing the warden or his representative to "open and examine all mail matter and express or other packages which may be directed to [the inmate]." The officer before whom the authorization is given is required to countersign, certifying that the prisoner "signed the same voluntarily" in his presence.[10]
3) The Approved Correspondence List. At approximately the same time, the prisoner completes a requested "Correspondence and Visit List,"[11] listing the persons with whom he wishes to visit and correspond. This list is normally confined to relatives and friends.[12] The inmate is entitled to have as many as seven correspondents, although additional persons may be added to the list through special approval of institutional officials. Attorneys are not ordinarily included on these lists.[13] Inmates may correspond with certain persons in addition to those on the correspondence list through the use of "special purpose" letters. These include letters to courts and to attorneys of record.[14] The correspondence list is subject to the approval of the Classification Department.[15] To assist classification officials in deciding whether to approve the request list, the inmate is asked to give certain information concerning each person listed, including name, relationship to inmate, address, age, occupation, and

arrest record.[16] The officials may conduct investigations of proposed correspondents before giving approval. Ordinarily, married inmates are not permitted to correspond with women other than their wives, mothers and 782 sisters.[17] And, although unmarried inmates can correspond *782 with approved unmarried women, they ordinarily are not permitted to correspond with married women other than their mothers and sisters.[18] Special permission must be obtained from the warden before an inmate may correspond with an ex-inmate, a person with a criminal record, or an inmate of another institution.[19] Permission must also be obtained from probation or parole authorities before correspondence will be allowed between an inmate and a person on probation or parole. [20] The approved correspondence list may be modified from time to time. Changes are processed through the Classification Department.[21]
4) Limitations on the Number of Incoming and Outgoing Letters. Written regulations limit the number of incoming letters from approved correspondents which an inmate may receive to seven per week, not including letters received from special purpose correspondents, such as attorneys of record or courts.[22] The testimony adduced at the hearing, however, indicated that, in practice, defendants have not restricted the number of incoming letters in any way. Awaiting trial inmates may write and send one letter per day to persons on their authorized correspondence list, while post-conviction inmates may send out two letters per week for which the state will pay postage, and a reasonable amount of additional mail for which the inmate himself must pay.[23]
5) Incoming Mail: Special Requirements. Incoming mail must not exceed two sheets and cannot be larger than 8½" by 11" in size. The complete name and address of the sender must be on the upper left hand corner of the envelope and at the end of the letter. Letters from persons other than the sender should not be enclosed. Stamps should not be sent in a letter to an inmate, although money, preferably in the form of money orders, may be included. A letter in a language other than English must be translated before it will be given to the inmate. No package may be sent to any person at the A.C.I., without prior permission. Books, magazines, and newspapers coming by mail will not be delivered to an inmate unless they are approved by the Education Department, and are mailed directly from the publisher or book store.[24]
6) Outgoing Mail: Special Requirements. Outgoing correspondence must be written on authorized stationery.[25] Letters are restricted to a single sheet of this stationery, although both sides may be used. Legal documents are exempt from this restriction on length. Letters written in any language other than English must be translated before leaving the institution.[26] The book of regulations for A.C.I. inmates contains the following requirements concerning the content of outgoing correspondence:
Correspondence must contain information of a personal nature to you and your correspondent only. It must not contain information about or from other inmates, discussion of institutional problems or policies or reference to institutional personnel. If slanderous, obscene or vulgar language is used, it may be a matter for possible disciplinary action.[27]
7) The Censoring Officer. The censorship of mail is conducted by the "censoring officer." At present the censoring 783 *783 officer is a custodial or security officer who is also in charge of the inmate records office of the A.C.I., but
other security officers are eligible to perform this duty and do so on occasion. In the "post orders" explaining the duties and responsibilities of the censoring officer, we find the following directions concerning the handling of mail:
It shall be your responsibility to examine all correspondence both incoming and outgoing to and from inmates. You shall be alert to detect attempts being made to slander this institution, its officials, or other officials working for the State of Rhode Island. You shall be constantly alert to detect and intercept correspondence containing codes regardless of whether or not the correspondence is incoming or outgoing. You are to be alert to detect correspondence concerning domestic problems, deaths, divorces, etc. You are to refer such letters to the Classification Dept. All incoming or outgoing correspondence to or from judges, parole board, police officials, attorneys, chaplains, etc. shall be referred to the Classification Dept. A member of this department

shall authorize mailing out such a letter by initialling same. You shall record the letter and the classification officer's name on the inmate's official correspondence form.
Testimony at the hearing showed that the censoring officer or his substitute open, inspect and read all mail, incoming and outgoing, from whatever source and to whatever destination. This fact is known by the inmates of the A.C.I.
8) Purposes of Censorship in General. One of the general purposes for opening, inspecting and reading mail is to insure that the rules and restrictions pertaining to correspondence, as described above, are complied with.[28] More basic, however, is the purpose of maintaining security. For instance, letters are read for possible disclosure of escape plans.
9) Reasons for Censoring Incoming Mail. The prison officials testified that incoming and outgoing mail are censored for different reasons. Incoming mail is generally examined to detect instruments of escape and other similar contraband, to screen out pornographic material, and to exclude narcotics or drugs. If contraband is found, it is confiscated by the censoring officer and, in serious cases, turned over to prosecuting authorities for possible institution of criminal charges.
A.C.I. officials testified that, in their opinion, it is necessary to screen out pornographic material because it arouses, stimulates and leads to an increase in the amount of perverse sexual conduct which takes place within the prison. This is, however, a matter of conjecture and opinion on the part of prison officials. Furthermore, the censoring officer is provided no guidelines or standards for determining what constitutes pornography. Any incoming material which, in his opinion, constitutes pornography, is confiscated by him. If he feels unable to make a final determination of whether a particular item falls within the category of pornography or not, he may go to a superior officer for instructions.
10) Narcotics and Drugs. At the request of this court, Mr. Ed W. Cass, Deputy Regional Director of the Federal Bureau of Narcotics and Dangerous Drugs, gave testimony concerning the methods by which drugs can be smuggled into a penal institution through correspondence. He stated that one drop of a solution containing L.S.D., when placed on a piece of paper, can give a person who later ingests the paper containing that evaporated drop a "trip" lasting up to sixteen hours. And, the more absorbant the paper is, the greater is the quantity of L.S.D. which can be infused into the paper. He added that the drug can be detected in some instances through visual inspection of the paper because it sometimes leaves a stain. However, this drug would escape 784 detection even upon close visual inspection *784 in many instances because it often leaves no telltale stain. There are chemical tests which could be employed to detect the drug in paper, but at the present time these tests would be impractical for use in a prison censorship context.
Plaintiffs' counsel elicited testimony from Mr. Cass to the effect that anyone taking L.S.D. in prison could be detected by observation, seeking to establish that such observation could provide an alternative to detection of drugs through opening and inspection of mail. In rebuttal, counsel for defendants obtained Mr. Cass' testimony to the effect that a person experiencing an L.S.D. "trip" and one suffering from a serious personality disorder could present the same outward appearance to an observer and it would therefore be impossible to detect the drug user merely through his outward conduct.
11) Purposes in Censoring Outgoing Mail. The Assistant Director for Correctional Services testified that he feels he has a statutory duty[29] to engage in censorship for the protection of the public. Some inmates would engage in "confidence" schemes, he claimed, in the absence of censorship. As an example of this he cited an instance in which a prisoner had attempted to send letters to parents of men killed in Viet Nam, stating that he had known the son, had taken a picture of him before he was killed, and now needed money in order to develop the picture. He testified that there is a danger that prisoners will enter into criminal conspiracies with persons outside the prison.
He also stated that censorship is necessary to protect the outside community from insulting, obscene or threatening letters. Accordingly, the censoring officer has been given the authority to stop any letter that is insulting, fraudulent, threatening or not in good taste, or any letter that casts the prison in an unfavorable light. Letters to the courts, to public officials and to attorneys are all read and censored for the above reasons. The

Assistant Director felt that he had a duty to shield even the courts from this type of letter. In argument, however, counsel for defendants conceded that there is no valid reason for reading and censoring of letters to courts or to public officials. However, he made no such concession with regard to attorney mail. He took the position that some attorneys are unscrupulous and would conspire with client-prisoners for criminal purposes, and that this category of mail should be subject to censorship.
12) Processing of the Mail. The censoring officer may make a copy of any paper, incoming or outgoing, which he feels is significant enough to be placed in the inmate's file. Papers thus placed in the inmate's file may be referred to and used in prison classification and disciplinary proceedings and could, conceivably, have some effect on the granting or withholding of parole. The censoring officer may also give papers from the mail or copies thereof to the Attorney General of Rhode Island or to police agencies for possible prosecution.
If only a portion of a letter is objectionable, that portion is not deleted; instead, the censor stops the letter. If the objectionable letter is incoming, it will either be returned to the sender or held and later destroyed. Outgoing mail which fails to meet the censor's standards is usually returned to the inmate who sent it.
All mail is stamped "Censored" before being sent or given to its addressee. Generally, all mail, both incoming and outgoing, is processed within twenty-four hours.
785 *785 CONCLUSIONS OF LAW
Our enlightened concern for individual human rights as it has penetrated prison compounds has taken us a long way from the judicial attitudes of the past as illustrated by the following language from Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796:
"He [the convicted felon] has as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State."
Today's growing recognition of prisoners' rights perhaps finds its genesis in Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944), in which case the court repudiated the idea that prisoner privileges were exceptional by stating, "A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law."
Implicit in this retention of rights concept is the need to define them in relation to the restrictions demanded for prison security and orderly administration. Though maintenance of institutional discipline is not the function of the court, it must, nevertheless, interfere by articulating the permissible applicable standards when there has been a deprivation of prisoners' constitutional rights. In this case especially it is most compelling, for the plaintiffs herein are in the awaiting trial section of the Adult Correctional Institution and must be presumed innocent while in such status.
Though the question of censorship of prisoners' mail by prison officials is not a novel issue before the courts, few guiding precedents have been established.[30] Indeed this court would not be candid if it did not recognize that the legal profession and our courts have made shamefully few attempts to codify constitutional rights in a prison context, particularly relating to men awaiting trial. It may be said that no direct authority exists for the broad relief which the plaintiffs seek in the case in chief. But one of the greatest attributes of the law is its flexibility, which allows it to be an instrument for social change and for the declaration and enforcement of the basic rights of all members of our society.
However, before considering (the) four primary factors [probability of irreparable harm, probability of success on the merits, the balancing of interests and preservation of the status quo] deemed paramount in deciding whether to grant a temporary restraining order, it is essential that this court first determine if the relief requested is a permissible quest for the protection of (First and Fourth Amendment) constitutional rights.
In spite of the pronouncements in the cases cited supra[31] that prison officials have broad powers of censorship, I find justification only for fewer restrictions because total censorship serves no rational deterrent, rehabilitative or

prison security purposes.[32] The record before this court, though pregnant with utterances of fear in the testimony of the prison officials, offers nothing in this regard by way of creditable evidence 0907 excepting the 786 testimony of Mr. Cass which I found most compelling. Legal *786 scholars advocate the dilution of the absolutism the authorities seek so zealously to preserve and perpetuate.
"We argue for fewer restrictions on letter writing. Letter writing keeps the inmate in contact with the outside world, helps to hold in check some of the morbidity and hopelessness produced by prison life and isolation, stimulates his more natural and human impulses, and otherwise may make contributions to better mental attitudes and reformation."[33]
INFRINGEMENT OF THE FIRST AMENDMENT
Both oral and written communications are included within the First Amendment guarantee of freedom of speech. The free speech clause of the First Amendment is broad enough to comprehend the right to correspond with others. In addition, correspondence sent to public officials to protest injustices or seek to redress alleged grievances is protected under the clause of the First Amendment which guarantees the right to petition for redress of grievances.
It should also be kept in mind that we are here concerned not only with the First Amendment rights of plaintiffs but also with the rights of all persons or institutions outside the prison who wish to correspond with the plaintiffs.
Included in this group are publishers and newspaper reporters. Freedom of the press is, therefore, an important element in this case since freedom to circulate printed material is as essential to freedom of the press as is freedom to publish,[34] and the burden is on the prison authorities to show a compelling justification for interfering with the free exercise of those freedoms.
In the area of the First Amendment, the United States Supreme Court has given us two applicable tests, namely the "clear and present danger" test as originally advocated by Justices Holmes and Brandeis in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), and the modification of this test as enunciated in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L. Ed. 1137 (1951), analyzing the need for restrictions on freedoms in terms of the consequences which would result if no restrictions existed 0907the employment of less burdensome alternatives to accomplish the desired result should be considered.
In a recent case involving the application of the Dennis version of the clear and present danger test in a prison context, Judge Tuttle said:
"(In the area of First Amendment freedoms) we have pointed out that stringent standards are to be applied to governmental restrictions * * * and rigid scrutiny must be brought to bear on the justifications for encroachments on such rights. The State must show some substantial and controlling interest which requires the subordination or limitation of these important rights, and which justifies their infringement * * *; and in the absence of such compelling justification the State restrictions are impermissible infringements of these fundamental and preferred rights.
Moreover, in examining the justification for state infringement (in the area of First Amendment freedoms) the Supreme Court has recognized and declared the principle that the means used by the State, as well as the ends, must be legitimate. Even the most legitimate of legislative ends cannot justify the infringement of fundamental rights of individual citizens if these ends may be accomplished by the use of less restrictive alternative means which result in less invasion of these fundamental rights."[35]
787 *787 In the application of these principles, this court must now determine whether the ends or purposes of censorship as practiced at the Adult Correctional Institution are legitimate. This I determine as a single judge fully realizing that my role on this motion is a narrowly defined one because the resolution of the principal issues in this case must be left to the entire court of three judges.

I will now consider this issue in relation to the four primary factors hereinbefore referred to.

1) 28 U.S.C. § 2284(3) specifically directs inquiry into the probability of irreparable harm if such an order is not granted. On this point, plaintiffs have argued that defendants' action impedes the right to meaningful assistance of counsel, violates the constitutional protections against unreasonable searches and seizures, violates plaintiffs' privilege against self-incrimination, makes a shambles of the attorney-client privilege between plaintiffs and their respective counsel, effectively denies the right of free and confidential access to the courts, and destroys the right of marital privacy. This alone is an impressive array of substantial contentions, some of which have recently been the basis for relief in Sostre v. Rockefeller, 312 F. Supp. 863 (S.D.N.Y.1970). However, this action today rests entirely on my belief that plaintiffs' fundamental right of free speech suffers under defendants' restrictions so 0907 in compliance with 28 U.S.C. § 2284(3), I find irreparable damage to exist under present prison conditions.

2) Though it is not apparent from the face of 28 U.S.C. § 2284(3), some courts have emphasized that a temporary restraining order will issue only when the party seeking it is likely to succeed on the merits. See, e. g., Greyhound Lines, Inc. v. United States, 301 F.Supp. 356 (N.D.Ill.1969). This court thinks that the better-reasoned view, however, is that the likelihood of success on the merits should be a minor factor, especially where the potential injury is great. As the court held in G. B. C., Inc. v. United States, 302 F.Supp. 1283 at 1284 (E. D.Tenn.1969):

"* * * if the balance of hardships tips decidedly toward the plaintiff, it is ordinarily sufficient that the plaintiff has raised questions going to the merits which are so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus, for more deliberate investigation."

Clearly plaintiffs' contentions regarding censorship are not frivolous and will demand deliberate investigation, and their likelihood of success appears probable upon the present state of the record.

3) A balancing test, based upon the potential injuries to each party from the granting or denial of a temporary restraining order, has also been judicially engrafted onto the statute in question here. Plaintiffs' probable injury from denial of the order has already been set forth. Defendants' alleged injury from the entry of an order is also substantial, insofar as it relates to the safety and security of the prison. The safety of the general public is also a factor which this court has taken into consideration.

4) This court is also aware of the maxim that a temporary restraining order will issue only to preserve the status quo, see Greyhound Lines, supra. Yet that principle, too, has been assailed as follows:

The concept status quo lacks sufficient stability to provide a satisfactory foundation for judicial

reasoning. The better course is to consider directly how best to preserve or create a state of

788

affairs in which effective *788 relief can be awarded to either party at the conclusion of the trial.

Note, Developments in the Law0907Injunctions, 78 Harv.L.Rev. 994, 1058 (1965).

A determination of how best to create a state of affairs conducive to effective relief may seem to rest, however imperceptibly, upon a prediction of the ultimate decision on the merits. This court decides, without pre-judging the merits, however, that it must restrain certain continuous and repeated denials of plaintiffs' fundamental right of free speech even if it upsets the status quo.

In evaluating the restrictions upon the plaintiffs' mail, I fully recognize that maintaining security at the Adult Correctional Institution is so obvious and fundamental a legitimate objective as to obviate the need for any further comment. The prevention of escapes, riots and assaults by inmates are legitimate goals of prison authorities. They must be allowed to take all necessary steps to prevent the introduction of objects into the prison such as weapons and hacksaw blades; highly inflammatory writings advocating the violent overthrow of governing authorities can legitimately be screened out; and the mails should not be used to convey illegal materials into the prison such as narcotics and drugs or hard core pornography. The introduction of most, if not all, of such objects or materials into a prison would constitute criminal conduct.[36] However, in taking steps to prevent the introduction of such items into the prison, even though the purpose or end in view is legitimate, prison officials

must use means which are legitimate and which provide the least restrictive of the alternative methods of accomplishing the desired end.
The current practices of correspondence control at the Adult Correctional Institution are either highly questionable or beyond the legitimate role of prison authorities. For example, officials at the Adult Correctional Institution have used such controls to suppress any criticism of the institution or institutional officials. I fail to appreciate such an attitude which smothers information to the public about prisoners and prison life it 0907 serves no rational social purpose supportive of prison objectives. It merely serves to destroy one of the few vehicles prisoners have of informing the public about their existence0907a public which should know so that it can exercise its responsibility in a meaningful way. Furthermore, it is my view that censorship for such reason is an unconstitutional infringement of the First Amendment rights of the plaintiffs, including the right to petition for redress of grievances.
Officials of the Adult Correctional Institution have also taken it upon themselves to read and screen outgoing mail to protect the public, including the courts, from insulting, vulgar letters. This is not their function 0907they are not the protectors of the sensibilities of the public which can protect itself.
There are many alternative methods of handling prisoners' mail between the extremes of no censorship in any form and the practice of not recognizing any rights at all of prisoners to receive or send mail. I find a workable point of accommodation to be that set forth in my ruling, infra, which in my opinion fully satisfies the requirements of the First Amendment in a prison context.
I hereby rule as follows, effective forthwith:
A) PUBLIC OFFICIALS AND ATTORNEYS
1) The defendants, their employees and agents shall not open or otherwise inspect the contents of any incoming or outgoing letters between inmates and the following persons:
a) The President of the United States; any United States Senator or Congressman; Judges of any of the Federal 789 Courts of the United States; including *789 the clerks of said courts, the Attorney General of the United States
and Director of the Federal Bureau of Prisons.
b) The Governor of the State of Rhode Island, Supreme, Superior and District Court Judges of Rhode Island; Lt. Governor, Attorney General, Secretary of State, General Treasurer, and any member of the Rhode Island State Legislature or any state prison official or member of the Parole Board.
c) The inmates' attorney(s); and any other attorney duly licensed to practice law in Rhode Island.
I cannot accept the rationale of the various court decisions such as United States ex rel. Vraniak v. Randolph, 161 F.Supp. 553 (E.D.Ill.) and Green v. Maine, 113 F.Supp. 253 (D.Me.1953) upholding the censoring of mail between prisoners and attorneys. Brabson v. Wilkins, 45 Misc.2d 286, 256 N.Y.S. 2d 693, mod. 25 A.D.2d 610, 267 N.Y.S. 2d 580, though striking down the conduct of a warden in intercepting a prisoner's letter to his courtappointed attorney nevertheless permitted it to be read, censored and in addition granted authority to strike material not relating to the legality of the inmate's detention or treatment.
I find that contact with an attorney, and the right to consult privately, is vital to an inmate's access to the courts. [37] In this case the plaintiffs and their trial attorneys are in the process of preparing for their criminal trials and to permit censorship by ACI officials of mail between the inmate and his counsel is to render ineffective the guarantee of the Sixth Amendment. Acknowledging it is true that a lawyer and his prisoner client can by-pass the censoring process if the lawyer visits the inmate in person, the fact remains such restraint is not warranted 0907its inhibiting effect upon the exchange of ideas dilutes the effective assistance of counsel it 0907 prevents the full effectuation of the Sixth Amendment.
I agree fully with Judge Keating in his dissent in Brabson v. Wilkins, supra:

"The Attorney General alleges that `prisoners would be able to carry on unauthorized activities through communications from prisoners to their attorneys and thence to third parties.' Uncensored communications, however, presently occur on personal visits to the prison by the prisoner's attorney and members of his family, without any apparent undermining of prison discipline. In any event, the right of a prisoner to unexpurgated communications with his attorney is so significant that it outweighs the danger of frustration of prison rules regarding outside activities in the rare case where an attorney an 0907 officer of the court0907would assist a prisoner in avoiding legitimate prison regulations."
There is no logical nexus between censorship of attorney-inmate mail and penal administration. It is just another veil which can help hide an administration which perhaps should be a prime subject for judicial review.
d) The defendants, their employees and agents may take time not to exceed forty-eight hours to verify the name, address and official position of the addressee in the case of outgoing mail and that the alleged addressor in the case of incoming mail is the sender of the particular letter.[38]
790 *790 It may be argued that closely related to the right to freely communicate with the courts is the right to have access to the materials needed to make this communication effective. The resolution of this question I leave for the full court and invite counsel to brief and argue whether or not prisoners should have reasonable access to law books and legal materials.[39]
B) LETTERS GENERALLY INCOMING
1.) All incoming letters, excepting those discussed under "Public Officials and Attorneys," supra, may be opened and inspected for L.S.D. stains and the like, drugs, weapons, escape instruments and similar items which threaten the safety and/or security of the prison.
2.) Since highly inflammatory writings and hard core pornography as hereinbefore mentioned can only be detected and screened through a reading of the same0907all incoming letters and the contents thereof may be read and inspected for said purposes. However, excepted from this control are all letters addressed to an inmate from his approved addressee list (see infra this text) which I rule may be inspected as recited in 1 above but may not be read.
a) In taking steps to prevent the introduction of such items into the prison, even though the purpose or end in view is legitimate, prison officials must use means which are legitimate and which provide the least restrictive of the available alternative methods of accomplishing the desired end.
In screening out pornographic materials, prison officials must strictly abide by the guidelines set forth by the Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Defendant officials have given an untrained custodial officer unbridled discretion to screen out any material which in his subjective opinion he believes to be pornographic. This, of course, is not a legitimate method of preventing hard core pornography from entering the ACI.
Here the Court is mindful of post-Roth decisions in the area of obscenity but has chosen to confine the censorship guidelines of this case as stated therein. Whether there should be any bans at all on pornography will 791 best be determined after a full hearing on the merits before the full court. Counsel are invited to *791 brief and argue this point.[40] I am also aware that present ACI officials may understandably lack expertise in the Roth area of obscenity.
However, competent, legally-trained personnel is available to assist the defendants in this regard.
b) All letters found objectionable as falling within the classification of 2 supra may be confiscated0907whereupon the prisoner will be so notified in writing setting forth the name and address of the sender, date of the correspondence and the reason for said confiscation.

C) LETTERS GENERALLY OUTGOING
Although defendant prison officials in this case claim that they need to read all mail,[41] incoming and outgoing, they do not attempt to listen to or censor in any way conversation between inmates and their visitors. In fact the general practice in prisons throughout the United States is to allow free conversation between prisoners and their visitors. The fact that officials have not found it necessary to listen to such conversations in order to thwart escapes and otherwise maintain security raises serious questions concerning their alleged need to read prison correspondence. Therefore this Court rules that
1) the reading of any outgoing mail from the inmates is unnecesary and in violation of the First Amendment rights of the parties involved unless pursuant to a duly obtained search warrant, and in the absence of the same no outgoing prisoner mail may be opened, read or inspected.
APPROVED ADDRESSEE LIST
The Court will conclude for the purposes of this motion that an approved addressee list of seven persons to whom an inmate may write is a reasonable method of maintaining prison security without undue restriction on the First Amendment rights of prisoners and such correspondents, so long as the criteria used in the preparation of such lists are rationally related to the purposes of confinement and the security of the institution. The Court invites counsel to further argue and brief this point for the hearing on the merits. Of course, all correspondence in category A0907"Public Officials and Attorneys" is in no way affected or limited by such approved list. In this argument the Court specifically asks0907Why should there be any limitation on the number of correspondents except as it may be based on the amount of time available to the inmate for writing letters and the amount of physical space and facilities available?
APPLICABILITY OF THE FOURTH AMENDMENT
Though this Court has focused mainly on the issue before it as it relates to the First Amendment, it is of the opinion that the conduct of the ACI officials of indiscriminately opening and reading all prisoner mail including that of unconvicted awaiting trial inmates, whether the same be from the inmates or members of the free society, is a violation of the Fourth Amendment. This cannot be condoned nor allowed to continue, though by necessity the full sweep of the Fourth Amendment obviously cannot apply in a prison or jail context. It is this Court's opinion that the right to be free from unreasonable searches and seizures is one of the rights retained by prisoners subject, of course, to such curtailment as may be made necessary by the purposes of confinement and the 792 requirements of security. Like *792 all things there must be a point of beginning and in this area of evolving law, where its expansion must be tailored to the peculiarities of the prison environment, this case offers as such a point these guidelines for the censorship of mail, which in my opinion, satisfy the mandate of the Fourth Amendment as it may apply to a penal institution and are applicable for the purposes of this motion.[42] I feel compelled to comment on the Fourth Amendment waiver signed by prisoners at the time of commitment. In exchange for mail "privileges" ACI officials require from each inmate his signature to a written statement authorizing them to censor his mail. It is this Court's view that such "authorization" under the inherently coercive circumstances under which it is given is without effect and cannot operate as a waiver or consent under the Fourth Amendment to the opening and reading of all of his mail.
This opinion relates only to letters. It has no effect upon existing practices relating to other bulk mail 0907including books, magazines and newspapers nor have I attempted to evaluate each prison censorship regulation individually. This task is left to the full court. Therefore, the following order is hereby entered 0907

ORDER
Only four of the defendants, defendants Travisono, Sharkey, Howard and Black have direct control over the mails and mail censorship at the ACI, and for that reason relief need only be granted in this case against these four individuals. They are hereby enjoined from following any rules, regulations or practices which are inconsistent with the guidelines set forth in this opinion.
[*] Subsequent to the institution of this action, under a reorganization of the R.I. Department of Social Welfare, Mr. John P. Affleck, Director of the Department of Social and Rehabilitative Services, was substituted for Mr. Travisono as a party defendant, pursuant to Fed.R.Civ.P. 25 (d), and therefore subsequent proceedings will bear his name.
[1] The defendants include Anthony P. Travisono, Director of the Department of Social Welfare of Rhode Island; John Sharkey, Assistant Director of the Department of Social Welfare for Correctional Services; Francis Howard, Warden of the A.C.I.; Robert Black, Chief Classification Officer of the A.C.I.; William Martin, Bail Commissioner of the A.C.I.; Herbert F. DeSimone, Attorney General of Rhode Island; Judge John Mullen, Presiding Justice of the Superior Court of Rhode Island; Frank Licht, Governor of Rhode Island; Peter Foley, United States Marshal for Rhode Island; Myrl Alexander, Director, United States Bureau of Prisons; and John Mitchell, Attorney General of the United States.
The Attorney General of the United States, the Director of the Bureau of Prisons, and a United States Marshal were joined in this action, presumably, because custody and care of persons awaiting trial for federal criminal offenses or awaiting commitment to federal correctional institutions is vested in these officials. See 18 U.S.C. §§ 4086, 4008, 4006, 4042, and 4041 (1964). The Director of the Bureau of Prisons has been empowered by Congress to enter into contracts with state authorities for the safe-keeping, care and subsistence of federal prisoners. 18 U.S.C. § 4002 (1964).
Myrl Alexander, one of the above-named defendants, has recently retired as Director of the United States Bureau of Prisons and a new Director, Norman Carlson, has been appointed. However, since it will not be necessary to grant relief upon this motion for a temporary restraining order against the Director of the Bureau of Prisons, for reasons to be explained later in this opinion, no amendment or substitution to include the new Director as a party will be necessary at this time.
[2] Plaintiffs also seek relief under 42 U.S.C. §§ 1981, 1982, and 1985(3) (1964).
[3] See 28 U.S.C. § 2201 (1964).
[4] The request was made under 28 U.S.C. §§ 2281, 2282 and 2284 (1964).
[5] The request was granted by Chief Judge Bailey Aldrich of the United States Court of Appeals for the First Circuit.
[6] See, e. g., Jackson v. Godwin, 400 F.2d 529, 541 (5th Cir. 1968). The provisions of the First Amendment which plaintiffs claim are infringed by prison authorities in this case are the guarantee of free speech and the right to petition for redress of grievances.
[7] Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
[8] Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
[9] See, e. g., Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1940).
[10] A sample copy of the authorization is set forth in plaintiffs' exhibit no. 3, as follows:
ADULT CORRECTIONAL INSTITUTIONS STATE OF RHODE ISLAND AUTHORIZATION FOR DISPOSITION OF MAIL

I hereby authorize the Warden or his authorized representative, to open and examine all mail matter and express or other packages which may be directed to me at my present address.
Dated this ____ day of ________ 19__. ______________________ Inmate's Signature
I hereby certify that the above was read and fully explained by me, and that he/she signed the same voluntarily in my presence, this ____ day of ________ 19__.
______________________ Identification Officer
[11] Inmate Guide, Adult Correctional Institutions, Howard, R.I., at 10 (1967). This book of institutional rules and procedures was admitted in evidence as plaintiffs' exhibit no. 1. The form used by the inmate in preparing his request list was introduced as plaintiffs' exhibit no. 4.
[12] Inmate Guide, supra note 11, at 10.
[13] Plaintiffs' exhibit no. 4.
[14] Id.; Inmate Guide, supra note 11, at 10 (1967).
[15] Inmate Guide, supra note 11, at 10 (1967).
[16] Plaintiffs' exhibit no. 4.
[17] Id.
[18] Id.
[19] Inmate Guide, supra note 11, at 10, 11 (1967).
[20] Id.
[21] Plaintiffs' exhibit no. 4.
[22] Id.; Inmate Guide, supra note 11, at 11 (1967).
[23] Inmate Guide, supra note 11, at 11 (1967).
[24] See Id. at 12 for a list of the restrictions on incoming mail.
[25] A.C.I., Post Orders for Post #4, Mail Censor, at 5. This document was introduced in evidence as plaintiffs' exhibit no. 2.
[26] See Inmate Guide, supra note 11, at 11, for a list of restrictions on outgoing mail.
[27] Id.
[28] See notes 17 through 27, supra, and accompanying text.
[29] R.I.Gen.Laws § 13-2-23 (1969 Reenactment). This section provides that the "Assistant director * * * may admit such communications to and from prisoners and their friends * * * and such books and other articles to be given to them, as he may deem expedient, the same being consistent with the safekeeping of the prisoners."
[30] Officials censoring incoming and outgoing mail: Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965); Adams v. Ellis, 197 F.2d 483 (5th Cir. 1952); Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954) cert. denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955); Fulwood v. Clemmer, 206 F. Supp. 370 (DDC 1962); Dayton v. Hunter, 176 F.2d 108 (10th Cir.) cert. denied, 338 U.S. 888, 70 S.Ct. 184, 94 L.Ed. 545 (1949); Numer v. Miller, 165 F.2d 986 (9th Cir. 1948); Fussa v. Taylor, 168 F.Supp. 302 (MD Pa.1958).
[31] Id.

[32] See, e. g., The Right of Expression in Prison, 40 So.Calif.L.Rev. (1967); The Problems of Modern Penology: Prison Life and Prisoners' Rights, 53 Iowa L. Rev. 671 (1967).
[33] The Right of Expression in Prison, supra, at page 418.
[34] Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877.
[35] Jackson v. Godwin, 5 Cir., 400 F.2d 529, n. 45 at 533, 541. See also Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). "Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose."
[36] See, e. g., R.I. General Laws, Sec. 11-25-8 (1969 Reenactment).
[37] In re Rider, 50 Cal.App. 797, 195 P. 965; Burns v. Swenson, 300 F.Supp. 759 (W.D.Mo.1969).
[38] See Lowe v. Hiatt, 77 F.Supp. 303, 305 (MD Pa. 1948) Jacob, Prison Discipline and Inmate Rights, 5 Harv.Civ.Rights0907 Civ.Lib.L.Rev. 227, 238; Lee v. Tahash, 352 F.2d 970; Problems of Modern Penology: Prison Life and Prisoners' Rights, 53 Iowa L.Rev. 671, 677;
"I believe that these limitations as well as the authority given the Warden unnecessarily interfere with and endanger this prisoner's right to communicate with his attorney and governmental officials having either jurisdiction over the penal system or the power and authority to correct conditions existing therein. * * *
* * * * *
* * * Judges and courts are not the only persons or agencies capable of granting relief to prisoners complaining about the illegality of their treatment or detention. For this reason, I see no basis for distinguishing between letters to courts, to the prisoner's attorney or to government officials. In all of these cases only the recipients of the letters should be permitted to determine whether the contents warrant their intervention and not the very person whose jurisdiction and conduct are being questioned.
* * * * *
Among the rights of which he may not be deprived is the right to communicate, without interference, with officers of the court and governmental officials; with those persons capable of responding to calls for assistance. No valid reason, other than the shibboleth of prison discipline, has been advanced for the denial of this right in the case before us. I believe that courts should look behind inappropriate slogans so often offered up as excuses for ignoring or abridging the constitutional rights of our citizens." Brabson v. Wilkins, 19 N.Y.2d 433, 438, 440, 280 N.Y.S.2d 561, 564.
[39] See in this connection Johnson v. Avery, supra n. 84; Jacob v. Sharma, supra n. 92 at 589 and n. 92 at 518-520, 590; Constitutional Rights of Prisoners; The Developing Law, 110 U.Pa.L.Rev. 985, 992-94 (1962); People v. Superior Court, 273 P.2d 936 (Cal.Dist.Ct.App.1954); In re Chessman, 44 Cal.2d 1, 279 P.2d 24; Bailleaux v. Holmes, 177 F.Supp. 361 (D.Ore.1959), rev'd sub nom. Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961); American Correctional Assn. Manual of Correctional Standards (3rd ed. 1966).
[40] For the same reason, this court has not evaluated each prison censorship regulation individually, but has left that task to the full court. However, the order based upon this opinion shall have the effect of enjoining the enforcement of those regulations which are inconsistent with this opinion, until such time as the entire court has rendered its decision on the merits.
[41] This opinion relates only to letters and has no effect upon existing practices relating to other bulk mail.
[42] Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) held that letters written by an inmate may be interrupted without a warrant, transmitted to the prosecutor and later used against the inmate in a criminal trial without violating the Fourth Amendment. See Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8

L.Ed.2d 384 (1962) where it is indicated in the majority opinion that the visitors' room in a jail is not a constitutionally protected area of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)0907points out that the Fourth Amendment protects people not places and held that the government's activities in electronically listening to and recording petitioner's words while using a telephone booth violated the privacy upon which he justifiably relied and thus constituted a "search and seizure" within the Fourth Amendment.
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 707 F.2d 636 (1983)
Nicholas A. PALMIGIANO, et al., Plaintiffs, Appellees, v.
J. Joseph GARRAHY, et al., Defendants, Appellants.
No. 82-1823.
United States Court of Appeals, First Circuit.
Argued May 5, 1983. Decided May 23, 1983.
William M. Walsh, Sp. Asst. Atty. Gen., with whom Dennis J. Roberts II, Atty. Gen., Providence, R.I., was on brief, for defendants, appellants.
Alvin J. Bronstein, Washington, D.C., for plaintiffs, appellees.
637 *637 Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and RE,[*] Judge.
PER CURIAM.
The plaintiffs, representing a class of prisoners and pretrial detainees, brought suit under 42 U.S.C. § 1983, alleging that the conditions of confinement in the Rhode Island prison system violated the eighth and fourteenth amendments. After a lengthy trial, and a ruling in the plaintiffs' favor on the merits, the United States District Court for the District of Rhode Island awarded attorneys' fees to the plaintiffs pursuant to 42 U.S.C. § 1988. The court included in its award of fees not only hourly based compensation and certain trial costs, but also certain out-ofpocket costs incurred by the plaintiffs' attorneys, including transportation, lodging, parking, food and telephone expenses. Agreeing that all amounts awarded were reasonable, but claiming that the statute does not authorize reimbursement for these out-of-pocket expenses, the defendants have appealed from the award. We affirm.
The defendants point to the language of the statute, which authorizes the district court, in its discretion, to "allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. The defendants argue that this language limits an award to "fees," the attorneys' hourly compensation, and "costs," a term not explicitly defined in the statute. The defendants argue that the word "costs" should be defined by reference to another statute, 28 U.S.C. § 1920, which lists the fees that may be taxed as costs against a losing party. Because section 1920 nowhere lists an attorney's out-of-pocket expenses as taxable costs, the defendants argue, the term "costs" in 42 U.S.C. § 1988 should similarly be interpreted to exclude travel expenses and the like.
Whatever merit this argument may have in the abstract, it runs counter to unanimous federal circuit court authority that the attorneys' reasonable and necessary costs and expenses may be awarded to a prevailing party pursuant to 42 U.S.C. § 1988. See Dowdell v. City of Apopka, 698 F.2d 1181, 1188-92 (11th Cir.1983) (expressly rejecting argument that 28 U.S.C. § 1920 should be read into 42 U.S.C. § 1988 to preclude award of travel, telephone and postage expenses); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.1981) (en banc) (remanding for award of attorneys' fees to include expert witness fees not normally compensable as costs); Norcross v. Board of Education, 611 F.2d 624, 639 (6th Cir.1979) (reversing and remanding for an award of fees to include expert witness fees and counsels' travel expenses). See also Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240, 1244 (9th Cir.1982) (affirming award of out-of-pocket expenses under attorneys' fees provision of Title VII); Wheeler v. Durham City Board of Education, 585 F.2d 618, 623-24 (4th Cir.1978) (remanding for an award of out-of-pocket costs as fees under 20 U.S.C. § 1617 and expressing view that same result would obtain under 42 U.S.C. § 1988). Given the policy considerations underlying section 1988 and the legislative history, we agree with the other circuits that reimbursement of reasonable and necessary attorneys' expenses such as those involved here is allowable under the statute. We note that the out-of-state attorneys in question, who were associated with a public interest firm specializing in prison matters, had unique competence in the subject matter of this litigation. They brought to the case experience and resources not easily duplicated locally. This is not a case involving

unreasonable or uncalled for use of distant lawyers. Cf. Maceira v. Pagan, 698 F.2d 38, 40-41 (1st Cir.1983) (affirming award of higher hourly compensation for out-of-town attorney with specialized expertise in the subject matter of the claim). Affirmed.
[*] Of the United States Court of International Trade, sitting by designation.
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 Palmigiano v. DiPrete, 887 F.2d 258 (Table) (1989) 887 F.2d 258 (Table)
(The court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. See CTA1 Rule 36.1 and CTA1 Rule 36.2 for rules regarding the publication and citation of unpublished
opinions.) United States Court of Appeals,
First Circuit. Palmigiano (Nicholas A.)
v. DiPrete (Edward) NO. 89-1440 | AUG 17, 1989 Appeal From: D.R.I., 710 F.Supp. 875 Opinion AFFIRMED.
1

 
 Garrahy v. Palmigiano, 449 U.S. 839 (1980)

101 S.Ct. 115 Supreme Court of the United States
J. Joseph GARRAHY et al., petitioners, v.
Nicholas PALMIGIANO et al
No. 79- 1979 | October 6, 1980
Facts and opinion, D.C., 443 F.Supp. 956; D.C., 466 F.Supp. 732; 616 F.2d 598.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the First Circuit. Denied.
Parallel Citations 101 S.Ct. 115 (Mem), 66 L.Ed.2d 45
	  

1

 
 PALMIGIANO v. GARRAHY
United States District Court for the District of Rhode Island November 19, 1984, Decided C.A. 74-172, C.A. 75-032

Reporter: 1984 U.S. Dist. LEXIS 21917 NICHOLAS A. PALMIGIANO v. J. JOSEPH GARRAHY, ET AL; THOMAS R. ROSS v. J. JOSEPH GARRAHY, ET AL
Judges: [*1] Pettine
Opinion by: RAYMOND J. PETTINE
Opinion
ORDER
On January 25, 1984, the Court entered a comprehensive order which inter alia detailed the progress made by the defendants in complying with the Court's remedial decree of August 10, 1977 and which set forth certain further compliance requirements and reporting and compliance deadlines. The defendants have continued their compliance efforts since January 25, 1984 and have periodically reported on same to the Court and to the plaintiffs.
On September 25, 1984, a status conference was held in chambers at which time the defendants and plaintiffs reported on the status of renovations at the Old Maximum Security facility and where the Court also had the benefit of the views of plaintiffs' environmental health expert as well as several of defendants' experts and the plaintiffs expert, Theodore Gordon, has now filed with the Court a written report of his inspection of the Maximum Security facility.

for the housing of prisoners indefinitely so long as they maintain that facility in compliance with the minimum standards set forth in the August 10, 1977 order, is granted provided, however, that the defendants incorporate in their renovation and operating plans for this facility the recommendations of the environmental health expert with respect to kitchen waste disposal, kitchen ventilation, food service staff training and general preventative maintenance. Furthermore, the June 1, 1985 deadline for the completion of renovations will not apply to the Industries Building. A report detailing the status of these renovations shall be filed with the Court and plaintiffs by July 1, 1985.
[*3] 2. The defendants shall be required to carry out the following other specific tasks to comply fully with the August 10, 1977 order:
a. Provide meaningful programming for pretrial detainees in the Intake Services Center, especially for those whose stay at the detention facility exceeds 45 days by July 1, 1985;
b. Provide meaningful vocational programming opportunities in each facility of the ACI by July 1, 1985;
c. Increase industrial programming throughout the ACI, particularly in the High Security Center, Maximum Security and Medium Security by July 1, 1985;

At the September 25, 1984 status conference, the defendants also made oral motions to amend existing compliance and reporting deadlines, which motions were not opposed by the plaintiffs, and which the Court will grant in light of the substantial [*2] compliance efforts made by the defendants. The Court believes it is now appropriate to incorporate all the existing remedial requirements for compliance with the August 10, 1977 order into one new order and the parties have agreed to its terms at the status conference.
It is the order, judgement and decree of this Court that:
1. The defendants' motion to extend their time to complete the renovations at the old Maximum Security facility to June 1, 1985 and to thereafter continue to use the facility

d. Expand mental health and medical services to keep pace with population increases;
e. Reduce the number of protection custody prisoners in B-Dormitory in Medium Security or develop other protective custody housing and increase the number of jobs available for protective custody prisoners by July 1, 1985.
f. Reduce the number of prisoners in Medium Security or begin planning to increase the availability of medium-custody bedspace at the ACI through conversion or construction by July 1, 1985.
3. By November 15, 1984, the defendants shall provide the Court and plaintiffs with [*4] a formal report which

1984 U.S. Dist. LEXIS 21917, *4

details all plans, either in place or prospective, together with

funding sources for the accomplishment of the tasks set forth /s/ Raymond J. Pettine

in paragraph 2, above. In addition, the defendants shall provide the Court and plaintiffs with formal progress reports Senior Judge

on accomplishing these tasks on February 15, 1985, May 15,

1985 and August 1, 1985.

November 19, 1984

Enter:

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