IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

W. H. NEWMAN, ET al.; JERRY LEE PUGH, E T c ; WORLEY JAMES, ET al.,
Plaintiffs,
UNITED STATES OF AMERICA; JOHN BELL, Etc.; THE NATIONAL PRISON PROJECT, Etc.; ET al.,
Amici Curiae,
-vs-
STATE OF ALABAMA, ET AL.; JOSEPH HOPPER, Etc.; Et Al.,
Defendants.

JE1ED.
Jf\ N6 -1983
CLERK '.S. DIST. COURT •>LE DIST. OP
CIVIL ACTION NO. 3501-N CIVIL ACTION NO. 74-57-N CIVIL ACTION NO. 74-203-N

CONSENT AGREEMENT
1. The Receiver and the Defendant Hopper contend that through the allocation of increased revenue to the corrections system by the Alabama Legislature, additional inmate housing, and the institution of firm policy and strong management, all conditions within the prison system that violated the Eighth Amendment prohibition against cruel and unusual punishment have been eliminated. They further contend that they have developed educational and work release programs, meaningful industrial and agricultural work and training, and

Pugh v. Sullivan PC-AL-010-006

a policy of discipline and compassion—all designed to achieve

permanent rehabilitation. They further contend that they have

provided the means and increased the capacity for incarcerating

convicted criminals in a constitutional manner and thus have

better protected the citizens of Alabama.

2. The plaintiffs maintain that although improvements

have been made in the prison system since the Receiver was

appointed, there are still substantial and serious failures to

comply with the court orders and the Eighth Amendment to the

Constitution both in the state facilities and because of the

continuing back up of prisoners in the county jails.

3. The Receiver, the Commissioner, the United States

and the plaintiffs agree that this is an appropriate time to

institute a different and more effective procedure to assure

continuing improvements in the prison system while at the same

time extracting the court from the day to day superintendence

of the prison system.

:

4. Therefore, the Receiver, Commissioner, Attorney

General, United States and the plaintiffs agree that the Court

enter an order as follows:

A: Continue the current hearing set for January 3,

1983, indefinitely unless it is reinstituted under the procedures

provided for hereunder.

B: Establish an Implementation Committee of four people to monitor compliance with the orders of the Court. The committee members would initially be M.R. Nachman, Jr., Ralph I. Knowles, Jr. or John Carroll, and two members to be nominated by the first two and approved by the Court, each to be appointed for a two (2) year term. In the event that any member of the committee has to resign, or otherwise cannot serve, that member will suggest a replacement to be approved by the Court. In the event of the death of a member of the committee, the remaining three (3) members shall agree upon a replacement. In the event there is no agreement, replacement shall be appointed by the Court.
C: The Committee is charged with the responsibility of working with the Governor, the Commissioner of Corrections, and all other relevant state officials in monitoring and assuring implementation of the Court's orders in the most expeditious and fiscally sound manner possible. The Commissioner will render such reports to the Committee on the status of compliance as the Committee shall from time to time require. The Committee will have the authority to state priorities and timetables to move toward compliance. The Committee will evaluate as a priority matter and at the request o f t h e plaintiffs the following areas: 1) state prisoners in county jails; 2) mental health care to inmates in need thereof; and 3) conditions in segregation. The Committee will from time to time note and recommend that the Court recognize those areas wherein the state has achieved compliance with its orders.

D: The Committee will have access to all staff and records of the Department at all reasonable times. They will also have access to all facilities and prisoners and to the records of all other relevant state agencies accessible to the Governor or Department of Corrections.
E: In the event it is deemed necessary, the Committee may hire experts to evaluate compliance. Reasonable fees and expenses of the Committee members and any experts they might hire will be naid by the Department of Corrections on a monthly basis. Tf the Commissioner objects to any expenditures he may submit such objections to the Court within 10 days of the submission of statements to the Department.
F: If a majority of the Committee determines that the defendants are not or cannot for any reason make expeditious progress in fully meeting the orders of the court in all facilities housing state prisoners, it will report that to the Court with a recommended course of action for the Court to follow. This, however, should be a course of last resort to be utilized only after the Committee has done everything within its powers to work with the Commissioner to achieve compliance without intervention of the Court.
G: The Committee will make such reports as it deems necessary or as requested by any party or the Court.
- A-

H: Nothing contained herein will prevent any party from filing with theCourt motions to dissolve the Committee if it believes its rights are being jeopardized by the actions or inactions of theCommittee in which case theCourt will take whatever actions are necessary to assure compliance with the orders.
Signed this the 5th day of January, 1983.

n CaTrroll or the Plaintiffs

M. R. Nachman For the Governor of the State of Alabama

Ralph I. Knowles, Jr. For the Plaintiffs

W. Scears Barnes For Joseph Hopper, Conmissionerof th< Department of Corrections

Jimmy Sai For the Coverkor of State ofvAlabama

Stephen A. Whinston For theUnited States of America

Elizabeth Alexander

v

For theNational Prison Project

Mitchell W. Dale For the United States of America

Terry Smyly For the Attorney General of Alabama
- 5-

 
 -71975

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

JERRY LEE PUG11, et al, *
Plaintiffs, *
vs

L. B. SULLIVAN, individually and in his official capacity as Commissioner of the Alabama Board of Correction, et al,"

Defendants

"CONSOLIDATED

WORLEY JAMES, et al, Plaintiffs

"CIVIL ACTION #74-57-N *,CIVIL ACTION#74-203-N

vs

GEORGE C. WALLACE,

individually and in his official

capacity as Governor of Alabama, et al

Defendants

*

WILCOX COUNTY COMMISSION,

*

as the governing body of the

County of Wilcox, State ofAlabama,

*

and all other Counties similarly

situated and ASSOCIATION OF COUNTY

COMMISSIONS OF ALABAMA, a voluntary

*

Association,

*

Intervenors,

vs
MELBA TILL ALLEN, individually and as State Treasurer, State of Alabama, FRED E. ZEIGLER, individually and as State Comptroller, * State of Alabama, JAMES R. SOLOMON, individually and as Director of Finance, * State of Alabama,

Third Party Defendants.

COMPIAINT OF INTERVENTION AND

:

THIRD PARTY COMPLAINT

:

1. The Wilcox County Commission is a body corporate, with the power to sue and be sued. It is the lawfully constituted governing body of the County of Wilcox, State of Alabama. The Association of County Commissions is a voluntary unincorporated Association, composed of all County Commissions and lawfully constituted

governing bodies of the several Counties of the State of Alabama. This Complaint is filed for Intervention under Provisions of Rule 24, Federal R.ules of Civil Procedure, in that applicants claim an interest relating to the transaction, which is the subject of the Action, and are so situated that the disposition of the Action may as a practical matter impair or impede their ability to protect that interest. The Action is maintained on behalf of all County Commissions and lawfully constituted governing bodies of the several Counties of the State of Alabama under Provisions of Rule 23.2, Federal Rules of Civil Procedure in that Intervenors are representative parties and will fairly and adequately protect the interests of the Association and its members, all Commissions and lawfully constituted governing bodies of the several Counties of the State of Alabama. Jurisdiction is concurrent with that of the original Complaint to this cause. Melba Till Allen is a citizen of the State of Alabama, over the age of twenty-one years, and is the lawfully constituted Treasurer of the State of Alabama. Fred E. Zeigler is a citizen of the State of Alabama, over the age of twenty-one years, and the lawfully constituted Comptroller of the State of Alabama. James R. Solomon is a citizen of the State of Alabama, over the age of twenty-one years and the lawfully constituted Director of Finance of the State of Alabama. Joinder of such parties is required under Rule 19, Federal Rules of Civil Procedure in that in their absence, complete relief can not be accorded among those parties to the Action, nor can complete relief be accorded Intervenors. In their individually and official capacities, Third Party Defendants control the State finances, funds, monies
and Treasury of the State of Alabama, which relates to
the subject of this Action. They are so situated that

a disposition of the Action in their absence may as a practical matter impair or impede their ability to protect that interest and leave the persons already parties, as well as Intervenors, subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of their claim to interest. In the alternative Intervenors name Third Party Defendants for permissive joinder under Provisions of Rule 20, Federal Rules of Civil Procedure. 3. This Court, in conjunction with the United States District Court, Southern District, issued an Order in this cause on August 29, 1975 enjoining named Defendants, individually and in their official capacities, from accepting any new prisoners into the Alabama Correction | System until the population of each prison in the system is no greater than its stipulated designed capacity. , Said Order is the direct result of a finding of serious overcrowding in these facilities and the serious lack of custodial officers and inability on the part of the prison officials to control violence within the prisons. 4. All County Commissions and lawfully constituted governing bodies of the several Counties of the State of Alabama are themselves, at the present time, named as parties in an Action presently pending in this Court entitled Ronald Paul Adams, et al, Plaintiffs, United States of America, Plaintiff Intervenor vs Nathan Mathis et al, Defendants, Civil Action No. 74-70-S. The Order of this Honorable Court entered on August 29, 1975, further compounds the serious problems and abilities of the several County governing bodies to grant adequate protection to the growing prison population of the State of Alabama and the County prisoners already incarcerated in the County jails. 5. The County governing bodies of the State of Alabama lack general taxing authority and ability to raise sufficient

revenue to care for the needs of the Plaintiff class,

which have been as a result of said Order of this Court

incarcerated in the several County jails of the State

of Alabama.

6.

That Plaintiffs and others similarly situated in their

class as prisoners, lawfully sentenced to terms in the prison system in the State of Alabama are lawful charges of the State of Alabama and their support, maintenance, housing, guarding, clothing, medical care and protection are lawful charges against State funds and funds in the

State Treasury which is under exclusive control of

Defendants and Third Party Defendants in their individ-

ual and official capacities as State Officers.

7. That Intervenors and all other similarly situated as

lawful governing bodies of the several Counties of the

State of Alabama possess insufficient funds to adequately

safeguard, support, maintain, house, guard, clothe,

provide medical care and protection for members of

Plaintiff class as State prisoners.

WHEREFORE, Intervenors request that this Honorable Court

issue an Order compelling Defendants and Third Party Defendants

to pay as a first charge against all funds in the State Treasury

or under their control belonging to the State of Alabama, expenses incurred by the County Commissions as lawful governing bodies of the several Counties of the State of Alabama for support, maintenance, housing, guarding, clothing, medical care

and protection of all members of Plaintiff class as State

prisoners in their charge and in custody of the County jails.

Intervenors further request reasonable Attorneys fees be taxed

against Defendants, Third Party Defendants and the State of

Alabama for the cost of this Action. Intervenors further pray

for any and other further and different relief considered

necessary and appropriate by this Court. Respectfully Submitted

Attorney for Intervenor

James W. Webb Attorney at Law 138 Adams Avenue Montgomery, Alabama

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been

served on All Counsel of Record by placing a copy of the same

in the United States mail, postage prepaid this the __________

day of

- -'• 1975.

Counsel

Puqh v. Sullivan

OP 9 • I • • • • • • • H I •

••

PC-AL-010-001

 
 •11111 PC-AL-010-002
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

N. H. NEWMAN, AND OTHERS, Plaintiffs,
JANICE PHILLIPS, Intervening Plaintiff,
v. STATE OF ALABAMA; et al.,
Defendants, UNITED STATES OF AMERICA,
Amicus Curiae.
JERRY LEE PUGH, for himself and all others similarly situated,
Plaintiffs, JANICE PHILLIPS,
Intervening Plaintiff,
JUDSON C. LOCKE, JR., individually and in his official capacity as Commissioner of the Alabama Board of Corrections; et al.,
Defendants, IRA DE MENT, United States Attorney,
Amicus Curiae.
WORLEY JAMES; et al., Plaintiffs,
JANICE PHILLIPS, Intervening Plaintiff,
v. GEORGE C. WALLACE, etc.; et al. ,
Defendants, THE NATIONAL PRISON PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.; and IRA DE MENT, United States Attorney,
Amici Curiae.

CIVIL ACTION HO. 3501-N CIVIL ACTION NO. 74-57-N CIVIL ACTION NO. 74-203-N

ORDER
Upon consideration of the verified complaint presented to the Court in these cases by inmate Janice Phillips, presently confined by the State of Alabama in Tutwiler Prison, wherein it appears that Janice Phillips is possibly suffering from a medical condition of an emergency nature and is being deprived of an examination by medical specialists and treatment, if indicated, by medical specialists, it is the ORDER, JUDGMENT and DECREE of this Court that the defendants Judson C. Locke, Jr., as Commissioner of the Alabama Board of Corrections, and Doris Wood, Warden of Tutwiler Prison, forthwith schedule with a medical specialist in the field of gynecology and/or internal medicine a complete physical examination for the said Janice Phillips and transport the said Janice Phillips to the designated location for said examination and appropriate treatment.
It is further ORDERED that the examining physician or physicians file a written report with this Court as to their diagnosis, prognosis and recommended treatment.
Done, this the /,>, ''~^ day of June, 1977.
UNITED STAICS^BISTRICT JUDGE

MIDDLE DISTRICT OF ALABAMA

| O F F I C E O F • -j« '•;•;-.

ik.5uNnrEDj STATES DISTRICT COURT

MONTGOMERY. ALA. 361O1

f;s;iiv -*Aij;-

• • -•';'..:. ]•.'

$££: "-JorFICIAl. BUSINESS

''.]•£.

• '

PENALTY FOR PRIVATE USB tSOO

Vv

5?

POSTAGE AND FEES PAID', UNITED .STATES COURTS

Messrs. Matthew L. Myers and Alvin J. Bronstein
National Prison Projects 1346 Connecticut Ave.N.W. Suite 1031 Washington, D.C. 20036

••*.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, NORTHERN DIVISION

N. H. NEWMAN, ANDOTHERS,

)

Plaintiffs,

)

***&£>

JANICE PHILLIPS,

)

Intervening

)

Plaintiff,

)

V.
STATE OF ALABAMA; et a l . , Defendants,
UNITED STATES OF AMERICA, Amicus Curiae

CIVIL ACTION NO. 3501-N

JERRY LEE PUGH, for himself and all others similarly situated,
Plaintiffs,

JANICE PHILLIPS,
Intervening Plaintiff,
v.
JUDSON C. LOCKE, JR., individually and in his official capacity as Commissioner of the Alabama Board of Corrections; et a l . ,

CIVIL ACTION NO. 74-57-N

Defendants, IRA DE MENT, United States Attorney,

Amicus Curiae. WORLEY JAMES; et a l . ,
Plaintiffs, JANICE PHILLIPS,

Intervening Plaintiff,

v. GEORGE C. WALLACE, etc.; et a l . ,

CIVIL ACTION NO. 74-203-N

Defendants,

TILE NATIONAL PRISON PROJECT O F )

THE AMERICAN CIVIL LIBERTIES UNION )

FOUNDATION, INC.; and IRA DE MENT, )

United States Attorney,

)

Amici Curiae.

'

COMPLAINT IN INTERVENTION
Comes now your petitioner, Janice Phillips, who is over the age of twenty-one years, and respectfully shows unto the Court as follows:
1. I am confined in Tutwiler Prison, State of Alabama, in the custody of Judson C. Locke, J r . , Commissioner of the Alabama Board of Corrections.
2. I am suffering from a painful and swollen abdominal condition, and I am unable to control my bladder which adds to my discomfort. In the evening of June 2, 1977 I fainted and was admitted to the infirmary. The following morning, June 3, 1977, Dr. Winston Edwards told me that there was nothing wrong with me. Dr. Edwards first saw and examined me on May 16, 1977. On June 10, 1977 when I was again sent to Dr. Edwards for treatment he told me that it was my nerves and that in my species of animals that when a certain age was reached it caused the nerves to malfunction.
3. On June 1, 1977, Mrs. Kathleen Holt, the assistant warden at Tutwiler Prison examined my abdomen and saw that it was swollen and that it did not look right and reported my condition to the warden, Mrs. Doris Wood. Despite Mrs. Holt's and Mrs. Wood's recommendations that I needed to be seen and examined by a specialist both Dr. Edwards and Mr. Judson Locke continue to refuse to send me to another physician for examination, diagnosis and treatment.
4. I am ready, willing and able to pay a reasonable doctor's fee to a gyneocologist to receive examination, diagnosis and treatment.
The premises considered your petitioner prays that the Court will enter its order requiring Judson C. Locke to appear, instanto, and show cause, if any he has, why I should not be seen by a gyneocologist or other medical specialist and receive immediate and appropriate medical treatment.

And petitioner prays for such other further and different relief as may seem just and proper.

iANICE PHILLIPS >' Petitioner
STATE OF ALABAMA) )
ELMORECOUNTY ) Before me, the undersigned authority, personally appeared
JANICE PHILLIPS, who being by me first duly sworn deposes and states under oath that she has read the foregoing Petition and has signed the same after having been advised of the contents whereof.

s*e e~

JANICE PHILLIPS

^

Sworn to and subscribed befor^xne this j/^ -' day of June, 1977.

OTARY PUBLIC

Pugh v. Su livan

•• •

•

HBf • • • • • • • HH •

PC-AL-010-003

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OP ALABAMA, NORTHERN DIVISION
N. H. NEWMAN, AND OTHERS, Plaintiffs,

v.
STATE OP ALABAMA; et a l . ,
Defendants,
UNITED STATES OF AMERICA,
Amicus Curiae. JERRY LEE PUGH, for himself and all others similarly situated,
Plaintiffs,

CIVIL ACTION NO. 3501-N

v.

JUDSON C. LOCKE, JR., indivi-

dually and in his official capacity as )

Commissioner of the Alabama

)

Board of Corrections; et a l . ,

)

Defendants,

)

IRA DE MENT, United States

)

Attorney,

)

Amicus Curiae.

)

WORLEY JAMES; et a l . ,

)

Plaintiffs,

)

CIVIL ACTION NO. 74-57-N

GEORGE C. WALLACE, e t c . ;

)

et a l . ,

)

Defendants,

)

THE NATIONAL PRISON PROJECT )

OP THE AMERICAN CIVIL LIBER- )

TIES UNION FOUNDATION, INC.; )

and IRA DE MENT, United States )

Attorney,

)

Amici Curiae.

)

CIVIL ACTION NO. 74-203-N

P.ugh v. Sullivan

™ " m • • ••••! • ••!!
PC-AL-010-004

MOTION TO INTERVENE AS PLAINTIFF
JANICE PHILLIPS moves for leave of this Court to intervene as an individual plaintiff in this cause rather than as an unnamed member of the class in Civil Action Nos. 3501-N, 74-57-N, and 74-203-N, pursuant to Rule 24 Federal Rules of Civil Procedure, wherein N. H. NEWMAN, JERRY LEE PUGH, WORLEY JAMES, and others, are plaintiffs, and JUDSON C. LOCKE, JR., individually and in his official capacity as Commissioner of the Alabama Board of Corrections; et a l . , and others, are defendants, for the reason that movant is a convict in the penitentiary system of Alabama and is and has been denied medical care by defendants despite often and r e peated requests for attention for an undiagnosed condition resulting in great pain and discomfort to her.
June /<S-, 1977.
EMILY # . GASSENHEIMER Attorney for Intervening Plaintiff 312 Scott Street Montgomery, Alabama 36104

 
 FILED

I 12 30 PM
ZKTBB UNITED STATES DISTRICT COURT FOR THE MIDDLE J;_,.e
~Z*-' DISTRICT OF ALABAMA. NOR

N. H. NEWMAN, AND OTHERS, Plaintiffs,
V. STATE OF ALABAMA, ET AL.,
Defendants, UNITED STATES OP AMERICA,
Amlcua Curlae.

)

CIVIL ACTION NO. 3501-N

)

)

)

JERR7 LEE FUGS, for himself and all others similarly situated*
Plaintiffs,
v.
LARRY D..BENNETT, individually and in his official capacity as Commissioner of the Alabama Board of Corrections, ET AL.,
Defendants*
BARRY E. TEAGOSr United States Attorney,
Amleo* Outimmm,

CIVIL ACTION NO- 74-57-JJT

WORLEY JAMES,
Plaintiffs,
v.
LARRY BENNETT, individually and in his official capacity as Commissioner of the Alabama Board of Corrections, ET AL.,
Defendants,
THE NATIONAL PRISON PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., and BARRY E. TEAGUE, United States Attorney,
Amid Curlae.

CIVIL ACTION NO. 74-203-N

Pugh v. Sullivan PC-AL-010-005

°. 5: P. £ I
Upon consideration of the findings of fact and conclusions of law made and entered in this case this date, and pursuant thereto, it is the ORDER, JUDGMENT and DECREE of this Court that Fob James, as Governor of the State of Alabama, be and he is hereby appointed temporary receiver of the prison system of the State of Alabama.
It is further ORDERED that this appointment as receiver be for a period of not less than one year, unless and until the receiver requests to be relieved or the Court orders a termination of the receivership before a year elapses.
It is further ORDERED that this appointment be for the purpose of carrying out the duties imposed by the Constitution of the United States and by the orders of this Court as set forth in Newman v. Alabama, 349 F. Supp. 278 (1972), aff'd, 503 F.2d 1320 (5th Cir. 1974), cert, denied. 421 U.S. 948 (1975) and in Pugh v. Locke, 406 F. Supp. 318 (1976), aff'd and remanded sub nom., Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert, denied in pertinent part, 46 U.S.L.W. 3802 (June 27, 1978).
It is further ORDERED that the Board of Corrections of the State of Alabama transfer to the Governor Fob James, as receiver all of its functions, duties, powers and authority to manage, supervise and control all penal and correctional institutions in the State of Alabama and all funds now held or controlled and all other duties and functions imposed upon the said Board under the laws of Alabama, including without limitation the power to hire, discharge, suspend and supervise the Commissioner of Corrections, deputy commissioners, and any other personnel employed by the Board.
It is further ORDERED that the members of the Board of Corrections, /
and all other defendants in these actions, their agents, servants, and employees, and all persons in active concert or participation with them, be and are hereby ENJOINED from failing to immediately comply with this order and from interfering in any'manner, either directly or indirectly, with the receiver in the performance of his functions and duties as receiver.
It is further ORDERED that the members of the Board of Corrections, and all other defendants in these actions, their agents, servants, employees ' and attorneys, and all persons-In active concert or participation with them, be and are hereby ENJOINED from failing to cooperate with the receiver in the performance of his functions and duties as receivers.

It is further ORDERED that the temporary receiver file with this Court quarterly reports.
Done, this the 2nd day of February, 1979.
UNITED STATES"blSTRICT JUDGE

 
 IN Til!: UKITEli -J'ATKS DISTRICT COURTS FOR THE OTHER!! AND ittDULE DISTRICTS 01' ALABAMA

ROMRT G. McCRAY, Petitioner,
v. L. B. SULLIVAN,

CIVIL ACTION WO. 5620-69-H
H LE D

Respondent.

AUG 2 01975

R03EHT G. McCRAY,

JANE P. GORDON, CLERt'

Petitioner, v.

reppxv f*i c~''
CIVIL ACTION NO. 6OS1-7O-H

L. B. SULLIVAN,

Respondent.

JERRY VKITE and ALVIN CLAVBROXE,
Petitioners,
COMHISST.OHER OF ALABAMA BOARD OF CORRECTIONS,
Respondent.

CIVIL ACTION NO. 7094-72-H

JERRY LEE PUGH, for himself and all others similarly situated,
Plaintiffs,
L. B. SULLIVAN, individually and in his official capacity as Commissioner of the Alabama Board of Corrections; et al.,
Defendants, IRA DE KENT, United States Attorney,
Amicus Curiae.

CIVIL ACTION NO. 74-57-M

VIORLEY JAKES, et al.,
Plaintiffs,
v.
GECRGE C. WALLACE, Individually and in his official capacity as Governor of Alabama; et al.,
Defendants,
ran NA'i'io:i\L PRISON PROJECT O? THE AMKIUCAil CIVIL'LIBEUTIliS UrUOJI l'OU:il).\YTOM, 1 K C , nnd IRA. VV. MKOT, Vnifcd f.Latca Attorney,
A::iici Our lac.

CIVIL ACTION NO. 74-203-N

ORDER AND 7K.IU?,;CTTON

The plaintiffs in the nbove-enptioned cases vho are. priconerc

incarcerated by the State of Alabama in itc penal system suing for themselves and

for othcrc similarly situated as prisoners in the Alabama prison system charge

the defendant state officials vho hold then in custody vith massive and aggravated

violations of the Eighth Amendment to the Constitution of the United States.

The G. K. Fountain Correctional Institution, formerly known as the Attaore Prison

Farm, and Holraan Prison are located within the geographical limits of the

Southern District of Alabama. The Mount Meigs Medical and Diagnostic Center

and the Draper Prison are geographically situated in the Middle District of

Alabama.

'

Evidence has been taken in each of the cases and the esses are now
2/

Bubmitted.

Upon these submissions it clearly appears that the plaintiffs'

Eighth Amendment rights have been and are being violated to the point that

their continued incarceration under the conditions existing in the four prison

facilities herein identified constitutes cruel and unusual punishment. The

plaintiffs in all cases seek interim emergency relief by asking that the

defendants be enjoined from accepting any new prisoners into the Alabama correction

system until the population of each prison in the system ie no greater than its

stipulated designed capacity. The serious overcrowding in these facilities and

the serious lack of custodial officers results in the almost complete inability

on the part of the Alabama prison officials to control violence within these

prisons; this violence includes, but is not limited to, stabbings and sexual

assaults by inmates upon other inmates, on a regular and continued basis.

Such conditions clearly dictate that the plaintiffs are entitled to interim

emergency relief. Failure to grant this interim emergency relief designed to

immediately commence a reduction in the prison facilities concerned will continue

to subject the plaintiffs and the members of plaintiffs' class to these serious

constitutional deprivations. This interim emergency relief is being granted

jointly by the two judges having these cases under submission. The Middle District

cascR and the Southern District cases vill otherwise be disposed of separately.

17 Judge llnnd in Che Southern District cnr.es has filed his fliidingr. and conclusions finding Eighth Amendment violations. Tn the Kiddle District cases tiic t't'fc:ndnntf! acknowledged, at the conclusion of the trial in open court, serious '•)'r,liLh Ai.K'inir.i-iit v i o l a t i o n s .

Accordingly, it is tlic ORDKR, JUDGMi:!;! find m X R K K of these Courts that ' L. !)• Sullivan, individually and in his official capacity as Co:rrnisGioner of the Alabama Board of Corrections; George C. V.'allnce, individually and in hie official capacity ns Governor of Alabama; The Alabama Board of Correction:;; Yetta Samford, Jr., individually and as a member of the Alabama Board of Corrections; J. E. VicUcrs, individually and as a nember of the Alabar.ia Board of Corrections; Thomas F, Staton, individually and as a nember of the Alabama Board of Corrections; Max V. KcLaughlin, individually and as a member of the Alabama Board of Corrections; Thomas E. Bradford, Sr., individually and as a member of the Alabama Board of Corrections; the Yterdens of G. K. Fountain Correctional Center, the Medical and Diagnostic Center, the Draper Prison, and the Holman Prison; their agents, assigns, successors in office, einployees, and any others acting in concert with them, be and each is hereby ENJOINED from accepting or permitting the acceptance of any new prisonei's, except escapees who have been apprehended and parole violators who have had their paroles revoked, into the Alabama penal system until the population of Draper Prison, G. K. Fountain Correctional Center, Holman Prison and the Mount Meigs Medical and Diagnostic Center is no greater than the designed capacity for said facilities.
It'is further ORDERED that the United States Marshals for the Middle and Southern Districts of Alabama forthwith serve each defendant, including the Wardens of G. K. Fountain Correctional Center, Holaan and Draper Prisons and the Mount Meigs Medical and Diagnostic Center, with a copy of this injunction.
Done, this the g A / ~^day of August, 1975.
UNIT ED STATifS "&I STRICT JUDGE
it)ft9?4^.. ^
UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURTS FOU THE JliTHEI AND MIDDLE DISTRICTS 01" ALABAMA

ROiVWVT G . UcCR.S.Y,
Petitioner, v.

CIVIL ACTION NO. 5620-69-U

L. ) ; . SULLIVAN, Respondent•

T,o?-r.";rr G . K C C R A Y ,
Petitioner, v. L. B. SULLIVAN,
Respondent.

CIVIL ACTION NO. 6091-70-H

JERRY VHITE and ALVM CLAYBROf.'E,
Petitioners,
v.
COMMISSIONER OF ALABAMA BOARD OF CORRECTIONS,
Respondent.

CIVIL ACTION KO. 7094-72-H

JERRY LEE PUGH, for hinsolf and all others similarly 6ituated,
Plaintiffs,
L. B. SULLIVAN, individually and inhis official capacity as Commissioner of the Alabama Board of Corrections; etal.,
Defendants,
IRA DE KENT, United States Attorney,
Araicus Curiae.

CIVIL ACTION KO. 74-57--N

VORLEY JAMES, et al.,
Plaintiffs,
v.
GEORGE C. WALLACE, individually and in his official capacity as Governor ofAlabnna; etal.,
Defendants,
THE NATIONAL PRISON PROJECT OK THE AMERICAN CIVIL I.Ittl'.RTlKS UNION FOUNDATION, INC., and IRK DE MiJNT, United Stntes Attorney,
Araici Curi.ao,

CIVIL ACTION NO. 74-203-N

V.'RIT OF INJUNCTION

TO:

L. B. Sullivan, individually and in his official capacity as

CoriT.iGsioiiar of the AlabaiM Hoard of Corrections;

George C. Wallace, individually and in his official capacity as Governor of Alabana;

The Alabar.a Board of Corrections;
Yecta S.rr.'.iford, Jr., individually and as a member of the Alabama Board of Corrections;

J. F.. Vickers, individually and as a member of the Alabama Board of Corrections;

Thomas F. Staton, individually and as a member of the Alabama Board of Corrections;

Marion L. Carroll, Jr., as successor to the named defendant Max V. McLaughlin, individually and as a member of the Alabama Board of Corrections;

Thomas E. Bradford, Sr., individually and as a member of the Alabama Board of Corrections;

George R. Boven, individually and in his official capacity as Acting Warden of G. K. Fountain Correctional Center;

Bill Long, individually and in his official capacity as Warden of the Medical and Diagnostic Center;
W. K. Calloway, individually and in his official capacity as Warden of Draper Prison; and

Walter T. Capps, individually and in his official capacity as

Warden of Holman Prison.

(

TAKE NOTICE that you, and each of you, your agents, assigns,

successors in office, employees, and any others acting in concert with you,

be and you are hereby ENJOINED as more particularly set out in the order and

injunction made and entered in these cases by the United States District

Courts for the Southern and Middle Districts of Alabama and filed with the

Clerks of said courts on this date, a copy of v?hich is attached hereto and

served herewith.

This writ of injunction is issued pursuant to said order and

injunction.

WITNESS my hand and the seal of the United States District Court for

the Middle District of Alabama on this the 29th day of August, 1975, at

Montgomery, Alabama.

Jane P. Gordon Clerk of the United States District Court
for the Middle District of Alabama

 
 AS C. C/.VEK CICKK

rs pisirid (fbri
MlDOLC DlSTKlCT Of
OFFICE OF 'HI CLERK
POST Orncc Box 711
MONTGOMERY. ALABAMA 361C1

TtLE'HOHt C2O*) H J - 7 > O l T7S

December 5, 1983

iir. Spencer D. Mercer, Clerk U.S. Court of Appeals - I l c v e n t h C i r c u i t 56 F c r s y t h S t r e e t . , K.W. , .Boom 100 A t l a n t a . GA 30303

D.C. KO. 3501~N u.S.C.A SO.

K.RE: NEWMAN v s . CHARLES GRADDICK, ATTORNEY GENERAL, e t a l

Enclosed are documents regarding an appeal i n this B i r r t : . plea.se acknowledge receipt °— the enclosed • copy of r>>->' -. le~t.tr.

| I Certi_fie-d copy of notice of appea.1 anG 'docket er.t_ries J3.clcsec.

j T i r s t Xctice of Appeal:

Tes |J

Date(s) of c~iher notices:

J i C e r t i f i e d record en appeal cczLsisting of :

3

y

V l ( ) off p lle sdd ii^ g s . e t c . ;

3

Vclun>e(s) cf tr^^-scripts;

4 Volume Cs) cf exhibi-.s/dSfSSESSSSSc; Otier:

•( | There was no .heariiig froc vhich z. t r a n s c r i p t could be aacie.

| * Copy of CIA forrc sppointing counsel.

! i The following s^steric-ls were SZALZTO in this court, (order enclosed):

The appellate docket fee hes been paid

i T« I j He; ^ate(s) paid

I j Appellant has been granted/d_niec lea^e t c 2ppeal in fcr~aa pauperis (copy cf ' crder granting/denying IT? anc/cr C e r t i f i c a t e cf ? r c b a ; l e Cause i s enclosed)

j j An a p p e a l bond has been posted i j Cost Bond i j Superserdeas Bond

j j The Judge or Magistrate appealed froE i s

i • The court r e p o r t e r ( s ) are

1 ! This i s an appeal of a ban±ru-;tr~" crc'er. Baniirurtcy Jucgff:

• : ~_is i s a DZAIZ PEKA1TT appeal
CC: Philip H. Butler, Patricia L i t t l e f i e l d , Mitchell W. Dale, Charles A. Schneider. Algert Agricola, John Bell, Charles A. Graddick,
Ken Wallis, M . R > N a c h n a i l ) J r t > Robert D. Segall, John L. Carroll, Alvin L'. Bronstein, John F. Cameron
Frank M. Wilson, Rosa Davis,

c - —r'

D. C.Form NfclO6A Her.?^=t^

^

^^..:,,

'J C i v i l Action No. 3501-N .
4s:—7— —
^ 2 _ ^ . H . NEWMAN, AND OTHERS,
Petitioners,

•UNITED STATES OF AMERICA, DONALD R. HAERISON - :" "
Amicus Curiae,

vs
GENERAL "•'• FOR STATE OF ALABAMA;° M1£E--&8M&£? WARDEN, .'MEDICAL & DIAGNOSTIC CENTER, MT. MEIGS, ALABAMA; ':FRANK B. BROWN, HOSPITAL ADMINISTRATOR, AND OR '•• BUSINESS MANAGER, ANDALL HOSPITAL STAFF, • MEDICAL & DIAGNOSTIC CENTER, MT. MEIGS, ALABAMA;

REV. JOHN E. VICKERS, DR.THOMAS F. STATON,and W. T. THRASH, individually and as Members of the Alabama Board ofCorrections; L; B. SULLIVAN, y individually and as Commissioner, Alabama Board \- of Corrections; UJAMES H. McCLENDON, BILL FRANKLIN, -.> M. B. FERGUSON, PAUL MANN IS, and JAMES E. INGRAM, : .individually and as Commissioners ofSt. Clair .'" County, Alabama, %BILLY JOE FREDERICK, GROVER DAVIS and DELMO PAYNE

; ATTOHNEYS

\

ri

_Philip-Hr Butler (Per Order A/I

• P. 0. Drawer 1470

(Court £

Montgomery, AL36102

,' 834-7000

Patricia G. L i t t l e f i e l d

Asst. Attorney General

Civil Rights Division

Washington, DC 20530

251-6723 FTS- (for Amicus Curi

and

Charles A.

John C. Bell

Mitchell W

U.S. Attorney

• Special L

P. 0. Box 197

Section,

Montgomery, AL36101 J u s t i c e

832-7280

• c i v i l Rig

Charles A. Graddick

Attorney General of Alabama

250 A d m i n i s t r a t i v e Bldg. H0L(

Montgomery, AL 36130

Rooi

834-5150

X 320

TJashingtoi —Gerter-el ~ ~—->

FOB JAMES, GOVERNOR OF ALABAMA, APPOINTED
TEMPORARY RECEIVER OF ALABAMA PRISON SYSTEM •£ -'• PER ORDER 2fWS

COUJ3RAK

tenaa7in4et7r7-2oprederr

of 2/15/72 order of

1!Added as parties-defendant per order of 1/8/80

%Added as parties-defendant per order of 11/6/80

§ ~~ -^srties-defendant per order of 1/8/81

/

—'*nfc-_(intervenors) per

£24

$70.00

14695 11/4/83 $70.00,

other state p«.Action arose zr.:

; IIIA :ev. 1775)
PLAINTIFF

NEWMAN, N . H . , ET AL.

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL. PROCEEDINGS

DOCKET NO. 3501-N PAGE OF. .PAGES

ADDITIONAL DEFENDANTS §§

poi±tical-snbd±vision-of-the-Stafre-ofAiabamat~BRA3¥~BAeGH5T-WABE-SALBREA?H,

P-r-9-r-Bex-lS? HaailfeeRy-At
92i-?8?8

Ballard—(Ma*i«R-€e § >^ack-Br-HcN

r-At 3536S far-Narthwest-Axsbstna-Mental H«titfr-Baard-&-Ncrthwest-A±sbsma Mentai-Heaith-eerirer
§ >Gr-Rr-Trawiek
135-Sottth-UnioR-£*«eet
834-4359

//•Thema-s—S-—Laws-err-,— •p-;—•©-;—-Box "2069

O"0 DS

ftfe~fee—&ae-Ge-veieae-^ ^ feii)- -McDOtc
•frrr—trrs—Si. <it e • tr£~-Ai and -in
Liulit;r-\>f—trn2"SLo.Le uf
^ hs"—i_apdci"tycfs
w/d 2/17/83 rtrr-At 35Q±Q~ 329-8438 for Alabama Board of Corrections *By letter of 8/20/76 Jimmy Samford !— Hiehael-B-r-WafeersLegal Advisor State Capitol Montgomery, AL 36130 for Gov. James and M. R. Nachman, Jr. P. 0. Box 668 Montgomery, AL 36101 for Gov. James'—
Al Tidwell P. 0. Box 787 Hamilton, AL 35570 921-7251 for Frederick, Davis & Payne (Marion Co. Defendants)
William J. Trussell Church, Trussell & Robinson 1904 Cogswell Avenue P. 0. Box 504 P e l l C i t y , AL 35125 338-2295 for S t . C l a i r Co. Commissioners, e t c .

2 111A ev. 1/75)
PLAINT: FF

N. H.

iN ET AL.

DATE ! N n

CIVIL DOCKET CONTINUATION SHEET DEFENDANT r
STATE OF ALABAMA, ET A L .
PROCEEDINGS

. (2/11/81)

ek---F-i-et-dre A-ek-er^-Wood—&—ii-eyd

-AL -355-95 039 0033

frr3.g 2.LI

T~ ~•B"i"t't Ll £ IT

(2/11/81)

DOCKET NO. 3501-N

PAGE OF

PAGES

•and Den -E-rdreieh

• James C. Barton (7/1/81) ! Johnston, Barton, Proctor, ' Swedlaw & Naff ! 1212Bank for Savings Building : Birmingham, AL 35203 ! 322-0616 i (for 5he-Binaingham-News. James H. Evans)

P-r-e--Bex-2?9 MoBtgoneryT-A 834-8489

(7/8/81) T—Johnston-S-8arrett

Dennis R. B a i l e y Rushton, Stakely, Johnston & Garrett P. 0 . Box 270 Montgomery, AL 35195 834-8480 (for The Advertiser Company)

•Wiif-owi-5-.-L-saTre ( 8 / 1 5 / 8 1 )
oni"j~iT!Lxr"~~' JuZC/i 30-0353

- Lti-fk i a - -S^yar •101- -So-. -

Rosa G. Hamlett Davis & Algert S. Agricola, Jr.

PMiip-€--Bav±9 JuIm-LucktrLL Sesrv-IU-Savlv (2/17/82)

250 Administrative Building

y *""*"*^ U/l//H^>

Montgomery, AL 36130

(for Charles Graddick)

: niA ev. 1/75) PLAINTIFF
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO.

PAGE

OF.

.PAGES

ADDITIONAL COUNSEL:
74-57-N
Robert D. Segall (Court app'd) P. 0. Box 347 Montgomery, AL 36101
and
John L. Carroll (Court P. 0. Box 2087 Montgomery, AL 35103 ; (for Jerry Lee Pugh)
74-203-N
Gee-gg-e—Pec-h—Xe-yJre-g- (Court a p p ' d ) -rf-ice--of—Dear, of—fcavr-S

John F. Cameron One Court Square P . O . Box 2644 Montgomery, AL 36105 (for Danny RayMylar, Plft-Intervenor
in 74-57-N, 10/5/82)
Frank M.. "Wilson Beasley & Wilson 418 So. Hull Street P. 0. Box4537 Montgomery, AL 36101 (for defts. Freddie V. Smith, Comm.
of the Ala. Dept. of Corrections, James Cooke, Dep. Comm, and other Dept. of Corrections defts.)

Reiph-lT-feswlesr-j3?. (per letter of 3/9/81) + Alvin L. Bronsteir. and StevenNey National Prison Projects of the American Civil Liberties Union 1346 Connecticut Avenue, N.W. Suite 1031 Washington, D. C. 20036 (202) 331-G500 (for Nat. Prison Projects, etc.)
Jaek-8sake-+— (y/d 4/15/83)

259=1234-1-
and
Raipfa-I-.- : L P-r-G-.--

3/2/83

752-1571 (for Worley James, et al.)

Donald R. Harrison 516 S. Perry Streer Montgomery, AL 36197 269-9159 (for Elraore County intervenors)

SEND COPY OF ORDERS TO:
Eva Ansley 3381 Atlanta Hwy. Montgomery, AL 36109

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

DOCKET NO.

PAGE

OF.

.PAGES

NR.

PROCEEDINGS

ADDITIONAL COUNSEL:
74-57-N
Robert D. Segall (Court app'd) P. 0. Box 347 Montgomery, AL 36101
and
John L. Carroll (Court app'd)v'' P. 0. Box 2087 Montgomery, AL 36103 (for Jerry Lee Pugh)
74-203-N
(Court app'd)

John F. Cameron One Court Square P . O . Box 2644 Montgomery, AL 36105 (for Danny Ray Mylar, Plft-Intervenor
in 74-57-N, 10/5/82)
Frank M. Wilson Beasley & Wilson 418 So. Hull Street P. 0. Box 4537 Montgomery, AL 36101 (for defts. Freddie 7. Smith, Comm.
of the Ala. Dept. of Corrections, James Cooke, Dep. Comm, and other Dept. of Corrections defts.)

Ra±ph-£T-Kaewle&7-J3?. (per letter of 3/9/81) + Alvin L. Bronstein and Steven Ney National Prison Projects of the American Civil Liberties Union 1346 Connecticut Avenue, N.W. Suite 1031 Washington, D. C. 20036 (202) 331-0500 (for Nat. Prison Projects, etc.)
Jaek-B*ake~!— (w/d 4/15/83)

153=1234

and

J

Rzrbpir-lT Kiiuwles,—.ft-.--P-w/d Pr—0-.—Box-&6—

3/2/83

752-1571
(for Worley James, et al.)

Donald R. Harrison 516 S. Perry Street Montgomery, AL 36197 269-9159 (for Elmore County intervenors)

SEND COPY OF ORDERS TO:
Eva Ansley 3381 Atlanta Hwy. Montgomery, AL 36109

CIVIL. DOCKET CONTINUATION SHEET PLAINTIFF
N..H. NEWMAN, ET AL.

DATE

NR.

DEFENDANT STATE OF ALABAMA, ET AL.
PROCEEDINGS

FPI-MAB

DOCKET NO 3501-N

PAGE4_4_OF

PAGES

Oct. 9

(Continued from previous page) with reasonable fees and expenses of said consultant or consultants of plaintiffs and amici to monitor compliance to be paid monthly by the Receiver and defendants as costs in this case; directing that nothing in this agreement and order is prejudicial to the right of the parties or amici to file motions for further relief on specific issues prior to 9/1/81. (Copies furnished to counsel.)

22 22 22 22 22 22 30
30
30
Nov. 3
3 3 3 3 3

Deposition of Gene T. Cardwell taken 9/10/80.
Deposition of Chester Wright Jenkins taken 9/10/80.
Deposition of Charles R. Sutton taken 9/9/80.
Deposition of Joseph S. Hopper taken 9/11/80.
Deposition of Fred Payne taken 9/9/80.
Deposition of James Coleman Cooke taken 9/9/80.
Motion of temporary receiver Fob James to add as defendants Billy Joe Frederick, Grover Davis and Delmo Payne, individually and as taxpayers of Marion County, Alabama, and for injunctive and other relief against said parties. Exhibits A and B attached. Referred to Judge Varner. (Treated as motion for temporary restraining order.)
ORDER (also applies to CA Nos. 74-57-N and 7,4-203-N) setting the motion for TRO contained in the receiver's motion filed 10/30/80 for hearing on 11/3/80 at 1 p.m., Montgomery, AL. (Copies furnished to counsel.)
Certified copies of order of 10/30/80 and copies of motion of 10/30/80 delivered to Marshal for service on Billy Joe Frederick, Grover Davis, Delmo Payne and Al Tidwell.
Quarterly report of receiver filed in accordance with Court's order of 2/2/79. Referred to Judge Varner.
Hearing on motion for TRO.
Response of proposed parties-defendant to motion of temporary receiver to add parties, and motion to dismiss. Filed in open Court.
Memorandum of law in support of proposed parties-defendant motion to dismiss. Filed in open Court.
Response of proposed parties-defendant to the motion of receiver to add certain parties and for injunctive relief. Filed in open Court.
Courtroom deputy's minutes of proceedings, list of witnesses and lists of exhibits. Exhibits attached.

DC-11 1A REV. (1/75)

CIVIL DOCKET CONTINUATION SHEET PLAINTIFF
N . H.' NEWMAN, ET A L .
NR.

DEFENDANT
STATE OF ALABAMA, ET AL.
PROCEEDINGS

DOCKET NO. 3501-N ^£_OF PAGE:

Nov. 5
13 13
14
18 21

Motion of State of Alabama for supplemental relief (regarding mail of Herbert K. Atvell.) Referred to Judge Varner. Exhibits L - X attached.
FINDINGS AND CONCLUSIONS (also applies to CA Nos. 74-57-N and 74-203-N) made in open Court on November 3, 1980, and transcribed by official court reporter. (Copies furnished to counsel.)
ORDER (also applies to CA Nos. 74-57-N and 74-203-N) makizig 3illy Joe Frederick Grover Davis and Delmo Payne parties-defendant to the.se causes of action; directing that a permanent injunction issue restraining any further attempt by said defendants from seeking to invoke the jurisdiction of any but this Court to inhibit the furnishing of facilities to house and provide for inmate of the Alabama Prison System, andfor proceeding further in the Circuit Court of Marion County, Alabama, in the case of Billy Joe Frederick, et al. v. The Northwest Alabama Mental Health Board, etc., et al., CV-30-5336. (Copies furnished to counsel.)
WRIT OF INJUNCTION issued. (Copies furnished to Billy Joe Frederick, Grover Davis and Delno Payne; to Clerk, Circuit Court of Marion County, Alabama; w/copies of findings and conclusions and order of 11/5/EO; bjcertified mail, return receipt requested.)
ORDER and CONCLUSIONS 0F LAW (also applies to CA Nos. 74-57-:; and 74-203-N) directing that until further order of this Court,the Warden of Kilby Correctional Facility or the appropriate officials o f tie Alabama Board of Corrections, screen or censor all outgoing general corrtspondence of inmate Herbert K. Atvrell anddetain anycommunication v;hich coriains false, misleadi: or otherwise unlawful representations or they may forvari such mails to prope: authorities to assure proper enforcement of criminal lavs. (Copies furnished to counsel.)
Deposition of Thomas H. Alphin, M.D. andexhibits thereto.
Marshal's returns on service of motion for TRO, and order of 10/30/80. Personal service on Al Tidwell on 10/31/80. Personal service or: D=1-2O Payne on 10/31/8C Personal service on Billy Joe Frederick on 10/31/80. Service as to Grcver Davis returned unexecuted.
Motion of temporary receiver Fob James to add as defendants the City of Hamiltor Alabama, the County of Marion, Brady Baccus, Wade Galbreath, Hugo Stone, Royce R. Mann and Hugh Akers and Murray Ballard, and for injumtive and other relief against said parties. Exhibits A-E attached. Referred toJudge Varner. (11/19/80 delivered copies of said motion to Marshal for service on proposed parties.)
NOTICE OF APPEAL of defendants Billy Joe Frederick, Grover Davis andDelno Payne to the U. S. Court of Appeals forthe Fifth Circuit, iron this Court's order of 11/6/80. (Copies furnished to counsel; to court re-rrcer: IO Chief Deputy Clerk, U. S. Court of Appeals, w/copies of docket entries.) Appeal information sheet furnished to Mr. Tidwell.

DC-1 1 1 A REV. ( 1/75 i

PLAINTIFF
N . ' H . NEWMAN, ET AL.
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA, ET AL.
PROCEEDINGS

DOCKET NO. 3501-N

U

PAGES

Marshal's returns on service of motion of 11/18/80. Personal service on Grover Davis, Al Tidvell, Royce Ray Mann, Billy Joe Frederick, Delmo Payne, Murray Ballard, Brady Baccus, James K. Davis, Wade Galbreath, and Hugo Stone, on 11/26/80. Service on Marion County by serving Brady Baccus, Chairman of County Commission, on 11/26/80. Service on City of Hamilton by serving Murray Ballard, Mayor, on 11/26/80.

Entire record as to 11/21/80 appeal mailed by certified mail, return receipt requested, to U. S. Court of Appeals, Atlanta, GA.
Opposition of the City of Hamilton, Alabama, Baccus, Galbreath, Stone, Mann, Akers Ballard and Davis to motion of Receiver to add certain parties as defendants and for injunctive and other relief against then. (Referred to Judge Varner.)
Defendants' report in accordance with this Court's order of 10/9/80, as to funding plan for compliance with this Court's orders. Exhibit A attached. Referred to Judge Varner.
Marshal's return on service of motion of 11/18/80 and order of 11/6/80. Personal service on Hugh Akers 11/29/80.

ORDER (applies also to CA Nos. 74-57-N and 74-203-N) that the Receiver's motion filed 11/18/80, to add certain parties as defendants be set for a hearing on 1/7/81, at 1:00 p.m., in Montgomery, Al. (Copies furnished to counsel.)

Received copy of motion of appellants-third party-defendants to supplement the appeal record, and ORDER of U.S. Court of Appeals, 5th Circuit, (entered 12/19/80) GRANTING said motion.
Hearing on Receiver's motion to add parties. PRELIMINARY INJUNCTION AND ORDER (also applies to CA Nos. 74-57-N and 74-203-N)
making the City of Hamilton, Alabama, a municipal corporation, the County of Marion, a political subdivision of the State of Alabama, Brady Baccus, Wade Galbreath, Hugo Stone, Royce R. Mann, and Hugh Akers, Commissioners of Marion County, Alabama, and Murray Ballard, Mayor of the City of Hamilton, Alabama parties-defendant to these causes of action; preliminarily enjoining-Baccus, Galbreath, Stone, Mann, Akers, Ballard and the City Council of Hamilton, AL as further set out in order; directing the Marion County Commissioners to instruct counsel for the Commission to move to dismiss or to stay proceedings currently pending in the Circuit Court of Marion County, AL - specifically CV-80-5355 - within 10 days; directing Ballard and the Hamilton City Council to instruct counsel for the City to move to dismiss or to stay proceedings currently pending in the Circuit Court of Marion County, AL - specifically CV-80-5356 - within 10 days; directing that this injunction shall remain in effect pending final determination of the Receiver's request for permanent injunction or until further order of this Court. (Copies furnished to counsel.
WRIT OF INJUNCTION issued. (Copies furnished to James K. Davis, Brady Baccus, Wade Galbreath, Hugo Stone, Royce R. Mann, Hugh Akers, Murray Ballard, Henry H.
Gann, Roy Beasley, Larry Carter, Bravel Jackson w/copy of order of 1/8/81 by certified return receipt requested mail.)

DC 111A •(Rev; 1/7S)
PLAINTIFF
N . H . NEWMAN, ET A L ,
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL.
PROCEEDINGS

DOCKET NO. 3501-1^tZ-OF PAG'

Jan. 9 16 21
22 23 23 26
28
28 Feb. 2

Motion of Northwest Alabama Mental Health Board and Northwest Alabama Mental Health Center to intervene as defendants. Referred to Judge Varner. Motion GRANTED 1/12/81. (Copies furnished to counsel.)
Court reporter's transcript of hearing held 11/3/80.
Motion of defendants Marion County and City of Hamilton to add Department of Mental Health of the State of Alabama as a party defendant. Referred to Judge Varner. Motion GRANTED 1/22/81. (Copies furnished to counsel; by certified return receipt requested mail to Department of Mental Health.)
Motion of Alabama Department of Mental Health and Glenn Ireland, II to interve as parties defendant. Referred to Judge Varner.
ORDER dismissing the motion of Alabama Department of Mental Health for leave t intervene as coot. (Copies furnished to counsel.)
Motion of Marion County for summary judgment. (Affidavit of Brady Baccus with exhibits A-J attached.) Referred to Judge Varner.
ORDER submitting the motion of Marion Courty for summary judgment on the motic the pleadings and any documents or other evidence filed on or before 2/5/81; setting said motion for hearing 2/13/81 at 11 a.m. (Copies furnished to counsel.) Also applies to CA Nos. 74-57-N and 74-203-N.
Opposition of defendants James, Northwest Alabama Mental Health Center and Department of Mental Health of the State of Alabama to the motion of Marion County for summary judgment. (Affidavit of Jerry A. Lovett with exhibits A-M attached.) Referred to Judge Varner.
Motion of defendants James, Northwest Alabama Mental Health Center and Department of Mental Health of the State of Alabama to strike portions of the affidavit of Brady Baccus. Referred to Judge Varner. Motion GRANTED 3/3/81. (Copies furnished to counsel.)
Quarterly report of receiver filed in accordance with Court's order of 2/2/79. Referred to Judge Varner. [Exhibits 1-9 in separate folder.]
Motion for summary judgment of defendants Northwest Alabama Mental Health Center, Northwest Alabama Mental Health Board and The Alabama Department of Mental Health. Referred to Judge Varner.
Affidavit of Mary Lee Shannon. (Exhibits A - C attached.) Referred to Judge Varner.
Motion of amicus The National Prison Project of the American Civil Liberties Union Foundation for award of costs and expenses. (Appendix A attached.) Referred to Judge Varner.
ORDER (also applies to CA Xos. 74-57-N and 74-203-N) submitting the motion of Northwest Alabama Mental Health Center, et al. for summary judgment on the motion, the pleadings and any documents or other evidence filed on or before 2/13/81. (Copies furnished to counsel.)

C 111A Rev. 1/75)
PLAINTIFF
N . H . NEWMAN , ET AL.
NR.

CIVIL DOCKET CONTINUATION SHEET = E = £N.: A * . T
SIATZ GF ALABAMA, ET A L . PROCEEDINGS

DOCKET NO. 3501-N

PAGE 48 OF

PAGES

Feb. 4 5
11 19 19 25 ar. 2
4 4

Exhibit N to the affidavit of Jerry A. Lovett filed 1/28/81.
ORDER of U. S. Court of Appeals, Fifth Circuit, (issued as mandate 1/29/81) dismissing the appeal of 11/21/80 for want of prosecution for failure of appellants to file their briefs. Referred to Judge Varner.
ORDER directing defendants to SHOT CAUSE within 60 days why the application of National Prison Project of tie American Civil Liberties Union for the award of reasonable costs and expenses should not be granted. (Copies furnished to counsel.)
Opposition of Board of Corrections to the motion of National Prison Project for award of costs and expenses. Preferred to Judge Varner.
Opposition of Marion Coun-y to the motion of Northwest Alabama Mental Health Center, et al. for s n — ~ry judgment. Referred to Judge Varner.
Motion of Melvin Bailey, Lionel Bragan, Tom Gloor, Chris Doss and Ben Erdreich to confine inmates at the Julia Tutwiler correctional facility. (Exhibit A attached.) Referred to Judg= Varner. Motion GRANTED 2/20/81. (Copies furnished to counsel.)
Response of amicus National Prison Project to defendants' opposition to award of costs and expenses. Referred to Judge Varner.
Agreement of defendants Janes and Britton to accept 24 women inmates from the Jefferson County Jail in the Tutwiler Prison. Referred to Judge Varner.
Defendants' amended response to the National Prison Projects's application for costs and expenses. Referred to Judge Varner.
Response of amicus National Prison Project to defendants' amended objections to award of costs and expenses. Referred to Judge Varner.
MEMORANDUM OPINION.
ORDER granting the motion for sunmary judgment filed 2/2/81; denying the motion for summary judgment filed 1/23/81; dismissing the City of Hamilton, Alabama, the County of Marion, t -e Alabama Mental Health Board, the Northwest Alabama Mental Health Center, t -e Department of Mental Health of the State of Alabama, Murray Ballard, Mayor o f the City of Hanilton, Alabama, Brady Baccus, Wade Galbreath, Hugh Stone, ?x>jce R. Mann and Hugh Akers, Commissioners of Marion County, Alabama as defezdants; taxing costs against said defendants. (Copies furnished to counsel.)
Motion of plaintiffs Janes and Pugh and amicus National Prison Project for the designation and convening of a three-judge district court. Referred to Judge Varner.

DC 111A (Rev. 1/75)
PLAINTIFF

N . H . NEWMAN, ET A L .

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL. PROCEEDINGS

cx— NO. 3501-N
.PAG

Mar.

*See Fg 148 ISCA
-7077

Motion of plaintiffs James and Pugh and amicus National Prison Pnject to require the provision of sufficient funds for compliance vlch the 10/9/80 order of this Court or the release of members of the plair.ti.if :la.ss until there is compliance with said order; motion to add Rex Rainer, lid. McDonald, George C. Dean, Jr. and Annie Laurie Gunter as parties defendants; motion fc injunctive relief. (Exhibits A-B attached.) Referred to Judge Varner.

Brief in support of plaintiffs and amicus motion for sufficient fnads or releas of members of plaintiff class until compliance with order of 1C 9/80. Referred to Judge Varner.

10 *See Motion of plaintiff Newman to require the provision of sufficient funds for pg 168 compliance with the 10/9/80 order of this Court or the relea.se :£ members of
USCA- 8'3-7077 plaintiff class until there is compliance with said order. Referred to
Judge V a n e r .

26

ORDER of U. S. Court of Appeals, Fifth Circuit, (entered 3/12. 31'. canying

appellants' motion to reinstate the appeal.

26

Received ccurt reporters' transcript of hearing held 11/3/80, set : 1/16/81

as supplemental record on appeal, from U. S. Court of AppeaLs, fifth Circuit.

Apr. 7

OPINION.

7

ORDER denying plaintiffs' motion for the designation and cotva z of a 3-judge

panel; adding Dr. Rex Rainer, Sid McDonald, George C. Dear., Jr. and Annie

Laurie Guater as parties defendants; directing all defendant : show cause

within 2C days why the further relief sought should not be r tst. (Copies

of opinion and order furnished to counsel; copies of opinion i order, alon£

with copies of notions of 3/9/81 and brief cf 3/9/81 delivetee t Marshal foi service en Rex Rainer, Sid McDonald, George C. Dean and At.?. lurie Gunter.)

13
15; 8
16

Marshal's r&turns on service of motions and brief of 3/9/81 a- I orinion and orde of 4/7/81. Service on Jane Veldon, Sec. 4/8/81 for Annie la :rie Gunter; serv: on Pat Smith, Sec. 4/8/81 for George Dean; service on Phil ?. Lvers, Asst. Lega! Advisor 4/3/81 for Rex Rainer; service on Shela Laney, Sec. -IB :1 for Sid McDonald.
Parties' joint motion to dismiss Rex Rainer as a defendant. r.af erred to Judge Varner.

Plaintiffs' notion for leave to amend the moticn to require t a- prtv ision of
sufficient funds for compliance with the 10/9/SO order or t i release of membt of the plaintiff class until there is compliance vith said rder. deferred to Judge V a m e r . Motion GRANTED 4/17/81. (Copies furnished tc .ounjal-.)

ORDER dismissing Rex Rainer as a defendant pursuant to parti; (Copies furnished to counsel.)

t notion.

1A 1/755
.AINTIFF

H. NEWMAN, ET A L .

JATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET A L .
PROCEEDINGS

fH—M »3 7 - U - 6 0 - 7 0 » - < 3 9 6
DOCKET NO. 3501-N
PAGES

•r.1 7

Plaintiffs' amended motion to require the provision of sufficient funds for compliance with the 10/9/80 order of this Court, or the release of members of the plaintiff class until there is compliance with said order, filed as ordered (see 4/15/81 entry).

17

ORDER giving defendants an extension of time to 5/7/81 to SHOW CAUSE, if any

there be, why the further relief sought by plaintiffs in their motion to

require provision of sufficient funds should not be granted. (Copies

furnished to counsel.)

20

OPINION.

20

JUDGMENT directing that The National Prison Project recover of defendants

$10,653.00 as reasonable and necessary costs and expenses incurred 2/2/79

through 10/9/80. (Copies of opinion and judgment furnished to counsel.)

29

Receiver's response to order of 4/7/81. Referred to Judge Varner.

Quarterly report of receiver filed in accordance with Court's order of 2/2/79. (Exhibits attached.) Referred to Judge Varner.

Response of defendant Britton to order of 4/17/81. Referred to Judge V a m e r .

Motion of defendants McDonald, Dean andGunter for reconsideration of orders of 4/7/81 and4/17/81; motion for more definite statement; motion to dismiss; motions to dismiss defendants Dean andGunter; response to plaintiffs' motion, as amended, to require the provision of sufficient funds forcompliance, etc.; answer to the complaint, as amended; anddemand for jury trial. Referred to Judge Varner.

11

ORDER setting plaintiffs' motions for the provision of sufficient fundsfor

hearing 5/26/81 at 9 a.m. (Copies furnished to counsel.)

12

ORDER rescheduling the hearing on plaintiffs' motions for the provision of

sufficient funds to 5/19/81 at 9 a.m. (Copies furnished to counsel.)

19

Hearing on plaintiffs' motions for provision of funds.

20 11 ORDER directing the Department of Corrections andthe Receiver to submit a list

of 250 prisoners least deserving of further incarceration as further set out in

order by 6/2/81; similar lists are to be submitted by 6/15/81, 6/29/81, 7/13/8L

and 7/27/81. (Copies furnished to counsel.)

28

Amendment,to the complaint filed. Referred to Judge Varner. (ExhibitsA-C

attached.)

29

Acceptance of service of the amendment to thecomplaint by Thomas S. Lawson, Jr.

for defendants Sid McDonald, Tom Brassell and Annie Laurie Gunter.

ie 2

List of inmates least deserving of further incarceration per order of 5/20/81. (Exhibit A attached.) Referred to Judge Varner.

DC 111A (Rev. 1/75)
PLAINTIFF K. H . NEWMAN, ET A L .

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA, ET A L .

DOCKET NO. 3501-N .PAGH

DATE. 1QS1 June 4

NR.

PROCEEDINGS

Motion of Adam Koslowski for leave to intervene. Referred to Judge Varner.

5

Motion of Robert Vaughn, Jr. for leave to intervene and petition for writ of

habeas corpus. Referred to Judge Varner.

ORDER denying the motions of Adam Koslowski and Robert Vaughn to intervene. (Copies furnished to counsel.)

11 13 Temporary housing plan by defendant Britton filed. Referred to Judge Varner.

16 15
19 15

Plaintiffs' motion for emergency relief and motion for injunction. Referred ti Judge Varner.
ORDER setting plaintiffs' motion for emergency relief for hearing 6/17/81 at 2 p.m. (Copies furnished to counsel.)

20 - List of inmates least deserving of further incarceration per order of 5/20/51.

15 272

(Exhibit A attached.) Referred to Judge Varner.

ORDER continuing until further order'the hearing on plaintiffs' motion for

16

emergency relief; setting this cause for a pretrial conference 6/25/81 at 9

(Copies furnished to counsel.)

17

Motion of defendants McDonald, Brassell and Gunter to dismiss. Referred to

Judge Varner.

23

Mot:iioonn.ooJf defendant, McDonald to dismiss; Referred to Judge Varner. Set on \.i \ ^ ^ V 1.4 ^ ^ 1*^4. * W

4> A W ^ / W £ J. (*L J_ \.A

W %••

*•* ^ fc** A i * ^ *m* W w

* » V .*. ^ » Jb. J - ^— W

w *

5/5/81 motion docket at ll a.m. Notices mailed 7//13/ox.

25

Pretrial hearing.

29

List of inmates least deserving of further incarceration. (Exhibit A attached

Referred to.Judge Varner.

July 1

Application of The Birmingham News for access to the list of inmates least deserving of further incarceration. Referred to Judge Varner. (Exhibits A-D5 attached.) Motion DENIED 7/16/81. (Copies furnished to counsel.)
Brief of The Birmingham News in support of application for access to list of inmates. Referred to Judge Varner.

Application of The Advertiser Company for access to the list of inmates least deserving of further incarceration. Referred to Judge Varner. Motion DEN II 7/16/81. (Copies furnished to counsel.)
Hearing on applications of The Birmingham News and The Advertiser Company fo:

access to list of inmates least deserving of further incarceration. 8

Courtroom deputy's minutes of proceedings; list of witnesses and exhibits fil<

10

Deposition of Robert Britton taken 7/2/81.

15

Motion of Ray Anthony Ragland to intervene and petition for a writ of habeas

corpus. Referred to Judge Varner. Motion DENIED 8/6/81. (Copies furnished

to counsel.)

1UA. /. 1/75)
PLAINTIFF
H . NEWMAN, ET AL.
ffif NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL. PROCEEDINGS

DOCKET NO. 3501-N
PAGE 52 OF. .PAGES

uly 15

ORDER issuing the writ of habeas corpus directing defendant Department of

276 Corrections for the State of Alabama to release from the Alabama Prison System those inmates listed on Appendix A hereof on 7/24/81; directing that those

inmates listed on Appendix B hereof be given an accelerated parole eligibility

date so that their consideration for parole before the Board of Pardons and

Paroles will be six months prior to such time they would otherwise be eligible

for such consideration; directing that any inmates listed on Appendix A who are

subject to a detainer by the federal government or another State or county,

independent of any sentence now being served by said inmate, be released to

said detainer subject to all conditions thereof; directing that any innate

listed on Appendix A who is presently serving a "split sentence" is hereby

released subject to all the conditions of the probation portion of said split

sentence, said probation to be revoked only for cause occurring after the

innate's release from the Alabama Prison System; directing that any innate

listed on Appendix A who is under order to pay restitution to his or her victim

is hereby released subject to said obligation to pay such restitution and such

remedies therefor as may be provided. Appendix A and B attached. (Copies

furnished to counsel, Andrew Cooper and U. S. Marshal.)

16 273 Motion of Charles Graddick to intervene. Referred to Judge Varner.

16 291 16 296 17 299

Motion of Charles Graddick to reconsider this Court's order of 7/15/81 and for stay. Referred to Judge Varner. Motion DENIED 7/22/81. (Copies furnished to counsel.)
Motion of Charles Graddick to join Fob James, Governor of the State of Alabama, as a party defendant. Referred to Judge Varner. Motion DENIED 8/6/81. (Copies furnished to counsel.)
Motion of Fob James, as Temporary Receiver, to dismiss the motions of Charles Graddick to intervene, for joinder and for reconsideration. Referred to Judge Varner.

20

ORDER setting the motions of Charles Graddick to intervene and to add Fob James

as party defendant for hearing 8/6/81 at 9 a.m. (Copies furnished to counsel.)

20

ORDER directing James H. Evans to show cause why he should not be made a party

defendant to these cases by 8/6/81 at 9 a.m. (Copies furnished to counsel;

delivered to Marshal for service on James H. Evans.)

20

Petition of Robert G. Britton for revision of Appendix A of the order of 7/15/81.

(Exhibit 1 attached.) Referred to Judge Varner.

20 302 Plaintiffs' response to Graddick's notions filed 7/16/81. Referred to Judge
Varner.

20

Marshal's return on service of order of 7/20/81. Personal service on James H.

Evans 7/20/81.

DCU1A (Rev. 1/75)
PLAINTIFF
N . H . NEWMAN, ET AL.

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA, ET A L .
PROCEEDINGS

DOCKET NO. 3501-N
PAGEJi3_OF_ .PAGE!

July 21

Response of defendants Brassell and Gunter to plaintiffs' response to motions o Charles Graddick. Referred to Judge Varner.

22 308

Notice of appeal by Charles Graddick from this Court's order of 7/15/81 and fro: the Court's de facto denial of the Attorney General's motion to intervene to U. S. Court of Appeals, Fifth Circuit. (Copies of notice of appeal mailed to Philip H. Butler, Robert D. Segall, John L. Carroll, Geroge Peach Taylor, Jac' Drake, Ralph I. Knowles, Alvin L. Bronstein, Steven Ney, Patricia G. Littlefi Stephen Whinston, Barry Teague, Jack M. Curtis, Thomas S. Lawson, W. Scears Barnes, Jimmy Samford, M. R. Nachman, Al Tidwell, William J. Trussell; mailed to U. S. Court of Appeals, Fifth Circuit, with certified copy of docket entri handed to Lewis Winberley.)

22

Bond for costs on appeal in the amount of $250.

22 I 310 Motion of Charles Graddick to stay this Court's order of 7/15/81. Referred to

j

Judge Varner. Motion DENIED 7/23/81. (Copies furnished to counsel.)

22 i

ORDER amending this Court's order of 7/15/81 so as to delete from Appendix A the names of those inmates appearing in exhibit 1 to defendant Britton's petition. Appendix 1 attached. (Copies furnished to counsel, U. S. Marshal and Andrew Cooper.)

22

Petition of Robert G. Britton to revision of Appendix A of the order of 7/15/81

(Exhibit 1 attached.) Referred to Judge Varner.

23

Amendment of Robert G. Britton to the petition filed 7/22/81. (Appendices 1

attached.) Referred to Judge Varner.

Second

23

/Amendment of Robert G. Britton to the petition filed 7/22/81. (Appendix I

attached.) Referred to Judge Varner.

23

ORDER amending this Court's order of 7/15/81 so as to delete from Appendix A

Michael Ray Ryan - 113245, Cary Pettis, II - 110916, Joey M. Bryant - 129055;

amending this Court's order of 7/22/81 so as to delete from Appendix 1 Julius

I. Williams, Jr. - 111441, Charles Ray Kayden - 104450. (Copies furnished tc

counsel, Board of Corrections and U. S. Marshal.)

25i313

Opposition of Charles A. Graddick to the release of state inmates per order of 7/15/81. Referred to Judge Varner.

27 i. 316 ORDER of U. S. Court of Appeals, Fifth Circuit (entered 7/23/81) denying the notion of Charles A. Graddick for stay pending appeal.

27 317

ORDER of U. S. Supreme Court (entered 7/23/81) staying the portion of the ordei of the U. S. District Court for the Middle District of Alabama directing that a writ of habeas corpus issue 7/24/S1 pending further order of the Court.

. 1/75) PLAINTIFF N . H. NEWMAN, ET AL.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALA3AMA, ET AL.
PROCEEDINGS

DOCKET NO. 35Q1-N

PAGE JiLOF

PAGES

uly 29 318 ORDER of U. S. Supreme Court (entered 7/25/81) vacating the order entered 7/23/'81; denying in all respects the application for stay. (Copy of opinion attached.)

29

Brief of receiver Jazies in support cf motion to dismiss Graddick's motion to

intervene. Preferred to Judge Varner.

31

Motion of Beard of Corrections for an extension of time to file quarterly report.

Referred to Judge Varner. Motion GRAFTED 8/6/81. (Copies furnished to counsel.)

Answer of James H. Evans to this Court's show cause order of 7/20/81 and motion to offer evidence in open court 8/6/31. Referred to Judge Varner.

Designation of Charles Graddick of record on appeal.
1**325 Motion of Charles Gracdic"-; to substitute Charles A. Graddick, Attorney General of Alabama fcr 3ill Baxley, Attorney Ger.eral of Alabama as a party defendant. Referred to Judge V a m e r .

Brief of Jazi-es H. Evans in support of answer to the show cause order of 7/20/81. Referred ;o Judge V a m e r .

5 323

ORDER directing defend anzs to contract professionals to 1) evaluate fully the current state of coq;liance with each of the. standards established by this Court's orders in ea h of the facilities operated by defendants; 2) determine what actions must be tal-:en to comp ly with each of the standards in all facilitie operated cr to be op- rated by defendants; 3) determine the cost of full compliance; and 4) c termine the earliest date possible to achieve full compliance vith each standard in e acr. facility. Said plan must include a realistic population projection fo r Alabama's prison system. The master plan is to be produced vi bin 8 months; interim reports and the final plan will be provided to counsel :or plaintiffs , Amici and the Court. (Copies furnished to counsel.)

Brief of Charles A. Graddick in suppor; of notion to intervene and for joinder of Fob Jan^s as a party defendant. Referred to Judge Varner.
Hearing on the motions of Charles A. Graddick to intervene and for joinder of Fob James as a party defendant.

10

ORDER dismissing all claims alleged against Sid McDonald, Annie Laurie Gunter and

Tom Brassell; dismissing same as parties to these cases; dismissing Sid

McDonald's notion to dismiss filed 7/23/81 as moot. (Copies furnished to

counsel.)

17

Supplemental brief in support of stazus of Alabama Attorney General as a party or

intervenor. Referred to Judge Varr.er.

17

Plaintiffs' (James, Kevman, and Pugh) memorandum in opposition to the motion of

the Attorney General tc intervene. Referred to Judge Varner.

DC 111A (Rev. 1/75)
PLAINTIFF
N. H . NEWMAN, e t a l .
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, e t a l , PROCEEDINGS

DOCKET NO. 3501-N PAGE 55.OF PAGES

Aug. 17 *See Plaintiffs' (Nevnan) motion to strike as a parties-defendant Charles Graddick.

Pg.

193

UBCA

83

Referred 70 7 >7

to Judge Varner.

24

Reply of Charles Graddick to plaintiffs' memorandun in opposition to notion to

intervene. Eeferred to Judge Varner.

28

Receiver's request to postpone consideration of further release of inmates.

Referred to Judge Varner.

31

Response of Charles Graddick and Joseph Hopper to receiver's request for

postponement of consideration of further release of inmates. Referred to

Judge Varter.

Sept. 3

Motion of plaintiffs Pugh and James to enforce this Court's 10/9/80 order and for an injunction pending a hearing on the receiver's proposal filed 8/28/81. Referred to Judge Varr.er.

Notice of plaintiffs Pugh and James of taking depositions of Joseph Hopper, Tommy Herron, Fred Payne, Sidney Rogers, Joseph Oliver and Ron Sutton.

OPINIONS of Justices Povell and Rehnquist of U. S. Supreme Court (entered 9/2/8 denying the motion of Charles A. Graddick for stay.

ORDER settixg the receiver's request filed 8/28/81 and plaintiffs' motion filed 9/3/81 for hearing 9/30/81 at 10 a.m.; treating plaintiffs' motion for injunction pending a hearing as a notion for temporary restraining order and denying stsae.. (Copies furnished to counsel.)

Motion of defendant Hopper for protective order. (Exhibit A attached.) Referred to Judge Varr.er. Motion DEFIED 9/21/81. (Copies furnished to counsel.)
ORDER settixg defendant Hopper's motion for protective order for hearing 9/18/8 at 10 a.m.; staying the depositions presently scheduled 9/11/81 and 9/15/81. (Copies famished to counsel.)

14

Quarterly report of receiver filed in accordance with Court's order of 2/2/19.

(Exhibit 1 attached.) Referred to Judge Varner.

16

Motion of Elraore County representatives and residents to intervene. Referred

to Judge T a m e r . Set on 10/2/81 motion docket. Notices mailed 9/21/81.

16

Brief of the Attorney General in support of his motion to intervene. Referred

to Judge T a m e r .

22

Motion of The Advertiser Company for access to certain judicial records and

post-jucgnent hearings. Referred to Judge Varner.

C 111A 3ev. 1/75)
PLAINTIFF .
N . H . NEWMAN , et a l .
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALASKA, e t a l .
PROCEEDINGS

j
i DOCK-T NO
jPAGE56 OF

3501-N PAr,F^

ept. 24

Statement of intent by Elmore County I'tervenors to orally argue the motion to intervene. Referred to Judge Varr.er.

24

Brief in support of intervenors motion to intervene. F-eferred to Judge Varner.

(Exhibit A attached.)

25

Motion of plaintiffs Pugh and Janes for a continuance ex tie hearing scheduled

9/30/81. Referred to Judge Varner.

25

ORDER continuing the hearing presently scheduled 9/30/81 zz 11/6/81 at 10 a.m.

(Copies furnished to counsel.)

28

Motion cf temporary receiver to disziiss motion to intervene and, alternatively

to dismiss answer of intervenors. Inferred to Judge Va~er.

28

Alternative motion of temporary receiver for injunctive ami other r e l i e f .

Referred to Judge Varner.

28 3ct. 2
6

Memorandum of United States. (Exhibits A-3 attached.) Referred to Judge Varner.
Motion of George Peach Taylor to vizhirav as counsel ror o r l e y Janes. Refer-ed to Judge Varr.er. Set on 1C'23/31 motion docket. Notices mailed 10/7/31. Motion GRANTED 10/27/81. (Copies furnished t: counse..)
Motion of Elmore County intervenors tc dismiss their noti:n to intervene and brief in support thereof and t r e a - sane as a motion io enmer the case as Amici Curiae for the defendants Rep. Jack Venable, e : al. Referred'to Judge Vamer.

8 328

ORDER granring the motion of Charles Graddick to substitute a party defendant, henceforth, Graddick shall actively participate as a pa—7 in this case; dismissing motion of Graddick to intervene as moot; dismissing notion of James to dismiss filed 7/17/31 as moot; den-ing motion of Nevmn p l a i n t i f f s to s t r i k e . (Copies furnished to counsel.)

8

ORDER by the Court that the petitions :f The Advertiser Company be, and the

same are hereby denied. (Copies furnished to counsel.) Also applies to CA No. 76-380-N.

13

Deposition of Paul Herring taken 10/5/51.

13

Deposition of Warden Sutton taken 10,'6 31.

13

Deposition of Joseph Hopper taken 9/2S.31.

13

Deposition of Fred Payne taken 9/2 8/31.

•

13

Deposition of Sidney Rodgers taken 9. 2E'S1.

19

Appeal bond in the amount of $2,000.

DC 111A (Rev. 1/75)
PLAINTIFF N . H . NEWMAN, ET A L .

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET A L .

DOCKET NO. 3501-N

PAGE?' OF

.PAGE!

ffif

NR.

PROCEEDINGS

Oct. 14

Notice of Appeal of The Advertiser Company to the U. S. Court of Appeals, Eleventh Circuit, from the order entered in this Court 10/8/81.

14

Statement of issues on appeal by The Advertiser Company. (Copies of the notice

of appeal and statement of issues on appeal furnished to Philip H. Butler,

Robert D. Segall, John L. Carroll, George Peach Taylor, Alvin L. Bronstein,

Steven Ney. Jack Drake, Ralph Knowles, John C. Bell, Patricia G. Littlefield,

Stephen Whins ton, Jack M. Curtis, W. Scears Barnes, Jimmy Samford, K. B..

Nachnan, Rcsa G. Eamlett, Philip C. Davis, Donald R. Harrison, Lewis Wimberley

and U. S. Court of Appeals, Eleventh Circuit along with certified copies of

docket entires.)

15

ORDEH. granting intervenors' motion as modified 10/6/81 to the extent that Sen.

Dor-aid R. Harrison be allowed to participate in these causes as Amicus Curiae;

denying said motion in all other respects; disrn.ssing James's motions for

injunctive relief and other relief and to dismiss as moot. (Copies furnished

to counsel.)

19

Notice of the ?ugh and James plaintiffs of taking the depositions of Joseph

Oliver, Ewayne Brookhart, J. D. White, James Cook and Charles Graddick.

19

Notice of the Pugh and James plaintiffs of taking the deposition cf N e m a n Carls

20

ORDEE. continuing the hearing on Receiver's request filed 8/28/81 and plaintiffs'

motion filed 9/3/81 presently scheduled 11/6/81 to 11/12/81 at 9 a.n. (Copies

furnished ~o counsel.)

20

JMoticn of Jack M. Curtis and Philip C. Davis to withdraw as counsel for Charles

Graidick. Referred to Judge Varner. Motion GRANTED 10/27/81. (Copies furnished :o counsel.)

21

Desigr.a-ion cf The Advertiser Company of record on appeal.

22

Motion of defendant Hopper for protective order. Oral argument requested.

(Zxlr.ibit A attached.) Referred to Judge Varner.

22

Moticn of defendant Hopper for protective order. Oral argument requested.

(Exhibit A attached.) Referred to Judge Varner.

23

Court reporter's transcript of hearing held 7/8/81.

23

Amended designation of Charles A. Graddick of the record on appeal.

27

ORDZr. denying defendant Hopper's motions for protective order as moot. (Copies

furnished ~o counsel.)

Second amendnent of Charles Graddick to the designation of the record or. appeal.

27)

Entire record on appeal forwarded to U. S. Court of Appeals, Eleventh Circuit,

by certified return receipt requested mail.

j

29

Deposition cf Charles A. Gfaddick.

C 111A ?ev. 1/75)

PLAINTIFF .

N . H . NEWMAN, ET AL.

i

ffif

NR. |

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET A L .
PROCEEDINGS

DOCKET NO. 3501-N

PAGE 5 8 O F

PAGES

ov.

'Quarterly report of receiver filed in accordance with Court's order of 2/2/79.

| (Exhibit attached.) Referred to Judge Varner.

5

iDeposition of Dwayne E. Brookhart taken 11/3/81.

5

Deposition of James Cooke taken 11/3/81.

i f

5

[Deposition of Joe Oliver taken 11/3/81.

5

iDeposition of J. D. White taken 11/3/81.

i

12

:Plaintiffsf prehearing memorandum in opposition to receiver's request filed

1 8/28/81. Referred to Judge Varner.

12

Hearing (In Chambers) on receiver's plan.

i

13

Courtroom deputy's minutes of proceedings, list of witnesses, and list of

exhibits.

13

:Appellant, The Advertiser Company's amendment to designation of record on appeal.

19

;Appellant, The Advertiser Company's second amendment to designation of record on

, appeal.

20

^Entire record on appeal mailed to the U. S. Court of Appeals, Eleventh Circuit,

I by certified return receipt requested mail.

23

Deposition of Charles Graddick taken 11/19/81.

ec. 14 330 [ORDER directing the Department of Corrections for the State of Alabama to release ; those inmates listed on Appendix A 12/22/81, unless otherwise ordered, as furthe i set out in order; directing that those inmates who will be eligible for parole j consideration within six months be given an accelerated parole eligibility date | so as to allow their immediate consideration; directing that any inmates listed i on Appendix A who are subject to a detainer by the federal government or another ; State or county, independent of any sentence now being served by said inmate, be I released to said detainer subject to all conditions thereof; directing that any I inmate listed on Appendix A who is presently serving a "split sentence" is hereb; j released subject to all the conditions of the probation portion of said split sentence, said probation to be revoked only for cause occurring after the inmate's release from the Alabama Prison System; directing that any inmate listed on Appendix A who is under order to pay restitution to his or her victim is hereby released subject to said obligation to pay such restitution and such remedies therefor as may be provided. Appendix A attached. (Copies furnished to j counsel, U. S. Probation, U. S. Marshal, Alabama Board of Pardons & Paroles,
Ii Joe Hopper.)

DC 111A (Rev. 1/7S)
PLAINTIFF
N. H. NEWMAN, e t a l .

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
CHARLES GRADDICK, e t c . , e t a l

DOCKET NO. 3531—N PA.SE59 OF PAGH

DATE

NR.

1 QR1

PROCEEDINGS

Dec. 16 343

Notice of defendants Graddick and Hopper of appeal tr< U.S. Ccuxc of Appeals, 11:

Circuit from the order entered 12/14/81. _(Copies_ furnished t o Philip H. Butli

Robert D. Segall, John L. Carroll, John C. E e l l , __ JECIC Drake, Ralpii I .

Knowles, Alyin L. Bronstein, Steven Key, JPatricia. 2. l i t t l e f i e l d , Stephen

Whins ton, _ Rosa G. Hamlet t Davis, John Lockett:,

___""- Scears Barnes,

Jjjray Samford," M'.' R. Nachnan", Donald R. Harrxsc, _

. ; v/certified cc:

of docket entries to Norrran Zoller, Clerk, U.S. "curt of Appeals, 11th Circuit

copy handed to Lewis Wircberley.)

16 346 383

Motion of defendants Graddick and Hopper for stay -f the order cf 12/14/81 pane; appeal, and objections to release permitted by seid order. (Exhibits A ar.d C attached; exhibits B and D in separate folders.) deferred ro Judge Vamer.

16

Bond for costs on appeal in the amount of $250 cash.

17 384 ! 392
17 393

Motion of Receiver for recrnsideration of this Court's : r c e : : f 12/14/SL and st (Exhibit A attached.) Referred to Judge Varner.
Supplement to exhibit B filed 12/16/81 by defendants Gredcick and Hopper. Referred to Judge Varner. (In separate folder.)

18

Hearing on rjotions to stay.

22 397 OPINION.

22 403

ORD^R denying the notion of Charles Graddick for szay s^d t'z- notion of the Receiver for reconsiderarion and stay. (Copies tf orinicr Lnd order fu—.ishe: to counsel and U. S. Court of Appeals.)

22 j 404 24 408 28

ORDER amending this Court's order of 12/14/81 by deleting fr: : Atpendix A those
innates appearing on Exhibit 1. (Exhibit 1 ar.tatr.ed.. (I: ies furnished to
counsel and U. S. Court cf Appeals, U. S. Marshal, U. S. ~-:-rcbarion and Alaban; Beard of Pardons and Paroles.)
(rendered 11/21/81) ORDER, of the U. S. Court of Appeals, 11th Circuit, on the z ni:n of appellants
for a stay of the Order of the U. S. D i s t r i c t C:ur: tor tz. Middle D i s t r i c t : Alabama entered on 12/1^ '81 be granted, and t h i s appeal c: ered expedited.

Notice of Fob James, Goverr-.or and Receiver of the

•:z. systen of anpe.:

tc the U.S. Court of App a l s , 11th Circuit frc~ = orders entered 12 ' 1 - ' 8 1 ,

12/18/81 and 12/22/81. ( Icpies furnished to Phil

r, ?.obert D. Segal!

Jchn L. Carroll, John C. 3 e l l , Jack Drake, Ralph

. Alvin L. Brrnste:

Steven Key, P a t r i c i a G. l i t t l e f i e l d , Stephen ins tor., ?JZSZ 1-. Hamlet z la v i s ,

Jchn Lockett, W. Scears Earnes, Jimmy Sainford. K

i, "onald ?v. Earri.

v, c e r t i f i e d copy of dock et entries to Gorman Zol

I ' . i . Court :f Aot-

11th Circuit; copy hande d to Lewis Wicberley.)

28

Designation of contents of record and statement of points.f l i -7 Charles Graddi.

and Joseph Hopper.

29 ;

Bond for ccsts on appeal in the amount cf $250.

X 111A Rev. l;75)
PLAINTIFF
N . H. NEWMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
CHARLES GRADDICK, e t c . , e t a l

DOCKET NO. 3501-N

PAGE 60 OF

.PAGES

NR.

PROCEEDINGS

Dec. 29 1982
Jan. 4

Defendants amended designation of contents of record. Objection of plaintiff-appellees to appellants' designation of the record.

11

0RDER(entered U.S. Court of Appeals 1/6/82) denying appellants request for

one week extension of time in which to sumbit theri briefs on appeal;

granting telegraphic request of appellants to consolidate case numbers

81-7606 and 81-8003; granting motion of "receiver" for joinder in appeal

as intervenor in 81-8003; denying "Receivers" alternative petition for

extraordinary writ as further set out in order.

21

Court Reporter's transcript of hearing held 11/12/81. (under seperate cover)

21

Court Reporter's transcript of hearing held 12/18/81. (under seperate cover)

22

Motion to Withdraw filed by attorney John R. Lock=-t as or.e of the attorneys of

record for the Defendants Charles A. Graddick and Joseph Hopper. Referred

to Judge Varner.

'

27 Feb. 1
2

Motion to Withdraw filed by John R. Lockett GRANTED, (copies of motion and

order furnished counsel)

s

ORDER denying Objection of Plaintiff-Appellees to Appellants' Designation of the record, (copies furnished counsel)

Quaterly Report of Receiver filed. Referred to Judge Varner.

4

Entire record on appeal (as designated by parties) mailed certified mail

return receipt requested to Clerk, U. S. Court of Appeals, Eleventh Circuit.

10 .pr. 1

R.eturn receipt showing service 2/8/82 for U. S. Court of Appeals, Eleventh Circuit.
State of Alabama Motion for Supplemental Relief filed. (Exhibits A-03 attached) Referred to Judge Varner.

27

OPINION FILED.

27

ORDER (also applies in 74-57-N and 74-203-N) that Departz:ent of Corrections

officials be, and the same are hereby, allowed to do the folloging with

•respect to the mail of Inmate Dudley Goulden; R.ead al1 outgoing general

correspondence; Detain all outgoing general correspondence in which DJdley

Goulden has misrepresented himself as a doctor or med ical doctor or which

contains certain false, misleading or other representazions which may be

unlawful; Take a reasonable time to ascertain whether a letter which purports

to be addressed to an attorney, court, public cfficia1, media organization or

media representative is being mailed to a persca act ally holding such a

posiction and is being mailed to a legitimate address Detain all special

correspondence to an attorney, court, public official media organization or

(continued)

DC 111A (Rev. 1/75)
PLAINTIFF
N . H . NEWMAN, ET A L .

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA.
PROCEEDINGS

DOCKET NO. 3501-N

PAGE OF_

PAGE

(continued from page 60) media representative which is not, in fact, being sent to such a person or organization or which is not being sent to a legitimate address of such a person or organization; Detain nail addressed to persons who have directly objected to receiving such mail from Goulden or addressed to persons who have previously been victimized by Goulden's misrepresentations; Implement the procedural safeguards described in the Opinion; Formulate and implement generally applicable inspection and censorship policies and regulations in confomity with the Procunier and Guajardo decisions. (Copies furnished counsel)

Apt.. 29 May 3
6

Plaintiff Pugh's Motion for Setting filed. Referred to Judge Varner. Quarterly Report of Receiver filed. Referred to Judge Varner.
ORDER teat Pugh. case will be set en the nest civil jury trial term scheduled in Montgomery, Alaaana. (Copies furnished counsel).

13
June 4 10
28

Defendant, Joseph S. Eopper's (in Pugh case) Objections and Motion to Set Aside Order of 5/6/82 filed. Referred to Judge Varner. Set or:6/29/82 Motion Docket. Notices mailed 6/10/82.
Plaintiff's motion to require disclosure. Referred to Judge Varner.
Defendant, Joseph S. Hopper's Motion to Strike Plaintiff's Motion to Require Disclosure filed" 6/4/82 filed. Referred to Judge Varner. Set on 6/29/82 Motion Docket, Notices Mailed 6/11/82. MOTION DENIED 7/12/82 .(Copies furnished counsel)
Plaintiff's Application for Avard cf Attorney's' fee andreimbursement of Expenses filed, (itemized statement attached). Referred to Judge Varner.

30

Parole Statistics by Department cf Corrections.

July 1
12 12 13

ORDER(in Pugh case) that any clains by Plaintiff Pugh for damages against Defendant Hopper or Governor James in their individual capacities be, and the same are hereby, dismissed, (copies furnished counsel)
Plaintiffs' Motion for the Award of Attorney's fees filed. (Declaration under Penalty cf Perjury attached). Referred to Judge Varner.
ORDER denying as moot motion to require disclosure filed 6/4/82. (Copies furni: counsel)
ORDER that theapplication filed herein 6/28/82 by Hon. Philip H. Butlerfor award cf attorney's feeand reimbursement of expenses and the motion filed herein 7/12/82 by Eon. Jack Drake foravard of attorney's fees be, and the same are hereby, set for a hearing on S/3/82 at 10:00 a.m. (Copies furnished counsel)

16

Defendant Hopper's Objections tc Plaintiffs' Motion forthe Award of Attorney's

fees filed. Referred to Judge Yarner.

23! **

Gov. Fob James' Motion to Dismiss filed.

26

;Plaintiff's Supplement to Application for Avard of Attorney's. Fee filed.

**See pg. 215cf USCA 83=7077

DC 111A (=ev. 1/75)
PLAINTIFF

N . H . NEWMAN, ET AL.

DATE

NS.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA PROCEEDINGS

DOCKET NO.3501-N

PAGE 6 2 OF

PAGES

1982

July 27
29 30

Defe-danzs1 Objection to Attorney's fee Application of Philip H. Butler filed. Referred to Judge Varner.
2*.spc-*e to Gov. James1 Motion to Dismiss filed by atty. Ralph I. Knowles,Jr.
Supplemental Declaration of Ralph. I. Knowles, Jr., Under Panalty of Perjury filed. Referred to Judge Varner-.

30

George reach Taylor's Declaration under Penalty of Perjury filed. Referred

to .Judge Varner.

30

David Ellis' Declaration under Penalty of Perjury filed. Referred to

J-ud.re V a m e r .

30

Affidavit of Albert W. Copeland filed. Referred to Judge Varner.

Aug. 2

2£i"ijz lay's Declaration under Penalty of Perjury filed. Referred to Judge V»r=-er.

ORDER, -hat the notion to dismiss filed by Eon. Fob James, Receiver of the Alar ara. Prison System, is hereby set for a hearing on 9/13/82 at 1:3C p.m., in Montgomery, AL. (Copies furnished counsel)

3

Quaterly Report of Receiyer filed. Referred to Judge Varner.

II

Xotio- of Receiver to. Add certain parties as Defendants and for Injunctive and

Other relief against them filed. (Exhibits A-B attached) Referred to

Judge T a m e r . . ORDER (dated 8/30/82), Motion DENIED.

11

CRDI?. directing the Department of Corrections of the State of Alabama, pay to

Ralpr- I. Knovles, Jr., Tventy-six Thousand One Hundred Twenty-nine Dollars

and 28.100 ($26,129.28) as further set out in order for services rendered and

expe-ses of both Mr. Knowles and Mr. Butler on behalf of the plaintiff

classes through 8/4/82. (Copies furnished counsel)

12

Hoticr of Receiver to Add Certain Parties as Defendants and for Injunctive

ai_d rtier relief against them filed. (Eshinits A-B attached). Referred

to Judre Tarner.

13

ORDER z-at the Motions of the Receiver filed herein August 11 and 12, 1982,

to adc certain parties as Defendants be, and the same are hereby, set fcr

a hearing on August 23, 1982, at 10:00 a.m. as further set out in order.

(C::isS furnished counsel)

17

jiotic- f;r Cor.tir.uar.ee filed by Fob James, as Governor of the State of Alabana

arc Ternorary Receiver of the Alabama Prison System filed. Referred to

Judge T = m e r .

C?JDE?. .hat the hearing presently scheduled for 8/23/82, on the Receiver's .-otic: to zii tarty Defendants be; and the same is hereby, continued until 8/31 12 at 10:00 a.m. as further set out in order. (Copies furnished cou-sel)

DC U1A (Rev. 1/7S)
PLAINTIFF
N . H . NEWMAN, ET A L .

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA
PROCEEDINGS

« 7.14-I0-7OH.-
3501-N
DOC-CETT N O .

PAGE 6 3 OF

.PAG

1982 Aug. 23

P l a i n t i f f s ' Application for Order to Fob Janes, Joseph Hcoper, and Charles Graddick to Show Cause why they, and each of them, should not be fined and/or imprisoned for Contempt of t h i s Court's Orders filed, referred to Judge Varner.

24

Motion or Request for Kon-Compliance hearing/and or Metier to Intervene filed

by Danny Ray Miles and Tommy Braswell. Hererred to Judge Varner.

30 **413 Received Slip Opinion from U.S. Court of Appeals, Ele—enrh Circuit; Dismissed in part; vacated in part and remanded.

Sept. 3 3

Danny Ray Mylar's Motion for leave to Intervene as a Plaintiff class filed. (in Pugh case). Referred to Judge Varner,. .£&i, on I I / I 32 Moticn Docket. Notices mailed 9/13/82. MO J:I ON SRAM^D _0/:>/S2. ( C c ? : L i 3 furnished counsel)
Pretrial hearing held.

ORDER that on or before 10/15/82 a l l .discovery by completed; witness names be furnished to opposing counsel; tangible evidence he furnisher, -o opposing counsel; substance of testimony be provided the oppcsiri party; further orde: that on or before 10/15/82 deposition notices be fumisied, giving adverse party until 10/22/82 for responding portions to be requested; further ordere< that on or before 10/15/82 parties subTit proposed vt-ir dire questions and jury instructions; further ordered that the provisicr-s ^z\c agreements stated herein shall be binding upon a l l p a r t i e s . (Copies furnished to counsel.
424 Defendant Joseph S. Hopper's notion to disriss and alt-erratively petition to modify. Referred to Judge Varner.

*See Motion of Charles Graddick for Modification of the October 9, 1950, Order f i l e

use

245 Referred • 83-7077

to

Judge

Vamer.

13

ORDER by this Court that the bearing presently set en r/12/82, be, andthe sam-:

hereby continued until 11/22/82 at 9:00 a.m.,as further set out in order.

(Copies furnished counsel)

20 409

JUDGMENT of the U.S. Court of Appeals dismissing the appeal as tc the 7/15/81 order; vacating this cause as to the 12/14/81 order: remanding hack to the D i s t r i c t Court in accordance with the opinion of thi_s Crurt; furthe1r ordered that each party bear their own costs CT. appeal to be t£:ced by the CLerk of
this Court. Referred to Judge Vamer.

2lj 4H !P l a i n t i f f s ' response to motion of Charles Graddick fcr n-cificaticr. c f the

j

| 10/9/80 order.

2ll *See j P l a i n t i f f s ' notion fcr order tc show cause why each defendant shculd r.ot be he

pg |257 j in contempt of the 10/9/80 order. Referred to Judge Vamer.

USCA 83-7077

^

21

Plaintiffs' response tc notion to disrJ.ES and altema.ively petiricntO EOGlfv

Joseph S. Hopper. Referred to Judge Varner.

ev. 1/75)
PLAINTIFF
N." H . NEWMAN, ETA L .

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA
PROCEEDINGS

DOCKET NO. 3501-N

PAGE 6 4O F

.PAGES

Oct. 1

Notice of Appearance of counsel filed by Terry R. Smyly, Assistant Attorney General.

5

/Notice to take deposition of Governor FobJames filed.

Plaintiff's

5

/Notice to tak.2 depositions of Joe Hopper, Paul Herring, J.D. White,

James Cook and Tos Allen filed.

Plaintiff's /Notice to zake depositions of Larry Spears, Tazvell Jones, Eddie Nagle,
Kathleen Halt and Ron Frambach. filed.

5

Plaintiff's Request for Production filed.

6

Defendant Charles Graddick's Request for Production filed. Referred to

Judge Varr.er.

Defendant Charles Graddick's Motion to Shorten the time for Answering
Interrogatories filed. Referred to Judge Varner. MOTION "DENIED 10/8/82. (Copies furnishea counsel) •

6

Defendant Charles Graddick's Interrogatories to the Plaintiffs filed.

8

Plaintiff's Notice to take deposition of Jim Thompson filed.

29

Deposition of Governor Fob Jamesffiled. Referred to Judge Varner.

29

Notice of Appearance filed by Jacquelyn Lufkin Stuart for defendant

Joe S. Hopper, Commissioner of the Alabama Department of Corrections.

29 Nov. 2

Plaintiff's Y-zztcz. to Continue (in Pugh case) filed. Referred to Judge Varner. GRANTED 11/1/82. (Copies furnished counsel)
ORDER that th_= hearing presently set for11/22/82, be, and the same is hereby, centirued until 1/3/83 at 9:00 a.m. as further•set out in order, (Copies f u — ished counsel)

Quarterly Report of Receiver filed.

Statement of Czunsel taken 10/18/82 at 9:10 a.m. filed. Referred to Judge Varner.

*See p a JUDGMENT of ".;. Ccurt of Appeals, Eleventh Circuit (issued as Mandate 11/1/82)

259

DISMISSING arpeal as to the 7/15/81 order; VACATED as to the 12/14/81.order;

usck

RZMANDED tc said District Court in accordance vith the opinion of this Court;

83-7D77

each party zc bear their own costs on appeal to be taxed by the Clerk of this Court.

16

Defendants, Jazss E. McClendon, Bill Franklin and if.B. Ferguson, individually an

as corr-'rssi— ers of St. Claix County, Alabama, Hotion to Dissolve Injunction

filed. Referred to Judge Varner. (Oral-argument requested)

DC 111A (Rev. 1/75)
PLAINTIFF
N.H. NEWMAN, ET AL.

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA
PROCEEDINGS

3501-N DtO'ET65N O PK2~ OF PAGES

1982 Nov. 16
19
22
22 22 24 29 29

(also applies in 74-57-N and 74-203-N) ORDER/setting PRETRIAL HEARING on 12/3/82 at 10:00 a.m. as further set out
in order; directing parties to prepare jointly a proposed pr=trlal order in accordance with the attached fora and to present it tc the Court at the Pretrial hearing. (Copies furnished counsel, and "3.S. Marshal)
ORDER (also applies in 74-57-N and 74-203-N) directing parries to this action to SHOW CAUSE in writing within 30 days as to why said notice -o dissolve injunction filed herein 11/16/82 should not be granted after 1/13/83 filed. (Copies furnished counsel)
ORDER (also applies in 74-57-N and 74-203-N)rescheduling the prstrial hearing presently set for 12/3/82 for 12/1/82 at 10:00 a.m. in Kcntg—ery. (Copies furnished to counsel.)
Deposition of Joseph S. Hopper; Larry Edward Spears; J. D. White; James Tnompso: Kathleen Kolt; James C. Cook; Tom Allen and Paul Herrir.g filed.
Received entire record on appeal from U.S. Court of Appeals, Il=v=-th Circuit.
Defendant Charles Graddick Motion to Compel Answers to Interrcracories and Production of Documents filed. Referred to Judge Tamer.
Governor Fob James, as Receiver response to Order to Show Cause dated 11/19/82 filed. Referred to Judge Varner.
The Advertiser Company's Motion to allow representatives cf t'-= press or the public to attend the pretrial hearing currently set in this zzrj.se filed. Referred to Judge Varner. (Motion DENIED, 11/30/82)

Dec. 2 426

ORDER on Pre-Trial Hearing; Discovery to be completed on cr before 12/23/82; witnesses to be furnished by 12/10/82; parties shall notify earn other on or before 12/23/82 of the intent to use any portion of a-y trirr recorded statements expected to be used in the trial, and the adverse party shall have until 12/30/82 to notify of any responding portion of tie prior record as further set out in order filed. (Copies furnished counsel'; (Zxhibits A-C attached).

2

ORDER that on or before ten (10) days the Plaintiffs answer tis. interrogatories

heretofore propounded to. them by Defendant Graddick on cr a:cut 10/6/82,

and produce the requested documents filed. (Copies furr.i.shei crunsel)

6

ORDER of U.S. Court of Appeals, Eleventh Circuit (entered 12/1.' 12) that the

district court conduct no further proceedings in this case except in open

court to which the public and press have access unless a heErir.g is held and

findings and reasons for the closure cf ar.y particular proc~=iir.g are set fo:

in an appropriate manner and certified tc this Court fcr e-.-erter.cy review fil

9

Plaintiffs' Motion for Leave to Amend Order on Pretrial Hearirz [letter form)

filed.

niA
(V. 1/75)

1
i ii.

PLAINTJF

•

N: H. KEKMAN, ET AL.

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA
PROCEEDINGS

3501-N DOCKET NO PAGE 66 OF PAGES

1982

ec. 9 452

ORDER by this Court that the Order on Pretrial Hearing entered in this cause on December 2, 1982, be, and the same is hereby, amended by striking the word "adequate" from the next-to-the-last sentence on page 6, Paragraph II(b), of said Order and substituting therefor the word "inadequate". Said Pretrial Order shall otherwise remain in full force and effect. (Copies furnished counsel)

SL

Defendant, Charles Graddick's Motion to Shorten Time to respond to

Defendant's Request for Admissions filed. Referred to Judge Varner.

o

Defendant, Charles Graddick's Request for Admissions Under Rule 36 filed.

Referred to Judge Varner.

10

Defendants' Proposed Witness list filed.

•

10

Plaintiffs proposed witness list filed.

14

Plaintiff's Answers to Graddick Interrogatories filed.

14

Plaintiff's Answer to Graddick Request for Admissions filed.

16

ORDER denying Defendant Graddick's motion to shorten time filed 12/9/82

as moot as further set out in order. (Copies furnished counsel)

16

Defendant Charles Graddick's Objection to Consideration of the Individual

Claim of Danny Ray Mylar and Motion for Severance filed. Referred to

Judge Varner.

20

ORDER that the claims of Danny Ray Mylar are hereby severed from the class

claims which are to be tried by this Court on 1/3/82 filed. (.Copies

furnished counsel)

20

Deposition of Robert W. Powitz filed.

20

Deposition of Arnold E. Pontesso filed.

22

Plaintiff's Notice to take deposition of Robert Buchanan on 12/29/82 at

1:00 p.m. at the offices of Robert Buchanan in Kansas City, Missouri filed.

22

Defendant's Notice of Prior recorded testimony upon which defendant Charles

Graddick will rely filed.

22

Deposition of Lloyd T. Baccus filed.

22

Defendants' Amended Witness list filed.

23

Defendants Second Amended Witness list filed.

23

Plaintiff's list of Depositions and documents filed.

DC 111A (Rev. 1/75) '
PLAINTIFF
N . H . NEWMAN, ET A L . ,

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA
PROCEEDINGS

rri—•*»—7-W.IO-7OM.4
3501-N
DOCKET NO. P A G E " OF .PAGl

1982

Dec. 28

Entry of Appearance filed by Mitchell W. Dale, as co-counsel for Amicus Curiae filed.

29

Received copy of Attorney General of Alabama's proposed witness, etc., list

for.hearing scheduled 1/3/83.

30

Pre-Trial Brief of the Plaintiffs and The National Prison Project filed.

1983

Jan. 3

Deposition of Dr. Jack Raba filed.

3

Deposition of Frank L. Rundle filed.

3

Deposition of Robert W. Fovitz, Vol. II filed.

3

Deposition of Paul D? Herring filed.

3

Deposition of Steven M. Collier filed.

3

Deposition of Dr. Conrad Consalvi filed.

3

Defendant James and Hopper's Objections to Plaintiff's Documents listedfor

trial purposes filed. Referred toJudge Vamex.

3

Defendants James and Hopper's List of Documents filed.

6

Consent Agreement filed.

pg. 30 ) USCAl83-7077

Settlement Hearing Held; continued; directing parties to file briefs within

one (1) week; CASE IN ENTIRETY CONTINUED until briefs are received.

Courtroom Deputy's Minutes filed along w/witness and exhibit lists.

10

Brief of Governor James to Approve Settlement Agreement and Alternatively to

Dismiss Attorney General as Party filed, deferred to Judge Varner.

11 453

ORDER by this Court that the Honorable Fob Jarses be, and he is hereby, relieved of his obligations as Receiver cf rhe Alabama Prison System filed. (Copies furnished counsel)

11

Memorandum in Support of Plaintiffs' Motion :: Dismiss andthe Motion of

Plaintiffs, the Governor and the Conznissic-sr of Corrections for Approval

I of the Proposed Consent Decree filed. Referred to Judge Varner.

12 j*See [Defendant, Charles A. Grdddick 's objection t: dismissal of the Attorney Genera!

pg. 308 USCA

and motion for continuance. Referred to Judge Varner.

83J-7077

12

Brief of defendant Graddick. Referred to Jucre Tarner.

K 111A lev. 1/75)
PLAINT i r r

N. E.

ET A L . ,

DATE : SR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA PROCEEDINGS

3501-N
DOCKET NO. .

PAGE 6 8 OF

PAGES

an. 13 |*See Courtroom Deputy's Minutes on Hearing on Settlement matters filed.

pg. 338 USCA 83-7077

13

Plaintiff moves Co dismiss the contempt proceeding against the Attorney General.

13 -See Attorney General's motion to modify was DENIED: Court found that the Attorney pg. 33$ USCA General does not have standing.
'33-70 7

17

Memorandum of the United States filed. Referred to Judge Varner.

m 18

OPINION; AND ORDER that the Consent Agreement filed 1/6/83, be, and the same is hereby, approved by this Court; that only this aspect of the class action be, and the same is hereby, dismissed, with this Court maintaining a supervisory position as to the aforesaid Consent Agreement; that Plaintiffs' motion to find Attorney General Graddick in contempt is dismissed; denying Attorney General Graddick's motion to modify filed 9/8/82 filed. (Copies furnis"hed counsel)

18

ORDE?. that the injunction entered 3/4/80 is dissolved as to James H. McClendon,

Bill Franklin and M.B.. Ferguson, individually and as Commissioners of

St. Clair Country, Alabama filed. (Copies furnished counsel)

19

Defendants, Commissioner of Corrections and the other officers and employees

of the Alabama. Department of Corrections Request to the Implementation

Cc=mittee for Assistance and Direction filed. Referred to Judge Varner.

28 rbee Pg 347 USCA 8 3 T 7 0 7 7
28

Notice of Appeal to U.S. Court of Appeals, 11th Circuit "from the order entered 1/18/83 filed by Defer.da.nt Charles A. Graddick, Attorney General of the State of Alabasa. (Copies furnished to Philip H. Butler, Robert D. Segall, John L. Carro3_l, Jobn C. Bell, Jack Drake, Ralph I. Knowles, Alvin L. Bronstein, Patricia G. Littlefield, Stephen Whinston, Rosa G. Eamlett Davis, Terry R. Smyly, W. Scears Barnes, Jimmy Samford, M.R. Nachman and Jacquelyn Lufkin Stuart; w/certified copy of docket entries to Norman Zoller, Clerk, U.S. Court of Appeals, 11th Circuit; copy handed to Lewis Wimberly)
Motion for Order Approving Nominations filed. Referred to Judge Varner.

31

Defendant Charles A. Grafdick's Motion for Written Order that State Inmates

in City and County Jails are members of the class with statement prescribed

by 28 U.S.C. §1292(b) filed. Referred to Judge Varner.

reb. 2

Quarterly Report of Coz~issioner filed. (Attachments A-C attached).

4

Plaintiff's Motion to Implement Settlement (in Pugh. case) filed. Referred to

Judge Varner,

(in Pugh. Case) ORDEr./cirectmg defendants to pay plaintiff the sum of $2000.00; that this case,
be, and the same hereby is, dismissed with prejudice.(Copies furnished
counsel) [damage part of complaint]

Plaintiff's response to the motion for Written Order that State Inmates in City and County Jails are members of the class filed, (letter form).

DC 111A (Rev. 1/75)
PLAINTIFF • N . H. NEWMAN, ET A L . ,

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA
PROCEEDINGS

fN-KAK 7H.BO-70KOI
3501-N
DOCKET NO.

PAGE _69_OF

PAGES

1983

Feb. 8
10 14

468 ORDER by this Court that the appointment of Dr. George J. Beto and Mr. John Conrad as members of the ImpleEentation Committee be,and
'reversing denial of copy of Tlpinion attract Motion to Withdraw as Counsel filed by attorney W. Scears Barnes, Jr., as counsel for Defendants, Hopper, Janes and the Department of Corrections filed. Referred to Judge Varner.GRA^TED 2/17/83. (Copies furnished counsel)

17 -Seep i.Notice of Appeal to the Eleventh. Circuit Court of Appeals filed by

350 tJSCA

Freddie Smith, asCommissioner of the Alabama Department ofCorrections,

83-707

Janes Cook as Deputy CondLssioner of the Alabama Department ofCorrections,

Larry Spears as Warden of Kilby Correctional Facility, and J. 0. Davis as

Warden of G. K. Fountain Correctional Institute, and their agents

and employees filed. (Copies furnished counsel w/certified copy to Court of

Appeals)

17

$250.00 Bond for Costs on appeal filed.

17

Bond for Costs on appeal in the amount of $250.00 filed by Attorney General

State of Alabama.

Mar. 2

ORDER by this Court that Ralph I . Foovles, J r . , i s hereby allowed to withdraw as counsel for Plaintiffs in theabove-styled causes filed. (Copies furnished counsel)

{Plaintiffs' Application for the Avard of Attorneys' Fees filed. Referred to Judge Tamer.

29

ORDER that, on or before April 29,19S3, the Defendants show cause in

writing, if anythey have, as to why said application for attorneys'

fees should not be approved. (Copies furnished counsel)

31 *See !Court Reporter's transcript of proceedings onJanuary 3 through January 6, 1983.

USCA 83n 7077

and January 13, 19.83 filed.

Apr. 11

469 OPINION': ORDER denying Defendant Graddick's motion filed 1/31/83, for a written

47*

order that State inmates incity and county jails are members of the class

in the cases ofPugh v. Locke, Ci No. 74-57-N, and James V. Wallace,

I CA ?;c. 74-203-N. (Copies furnished counsel)

14-

Attorney Jack Drake's motion towithdraw as counsel for plaintiffs. Referred

to Judge V a m e r . MOTION GRANTED 4/15/S3. (Copies furnished counsel)

14

| Appellant Charles A. Gracdick's Designation of the Clerk's Record.

29 475

Defendants, Freddie V. Snith, as Comissioner of the Alabama Department of Corrections, Janes Cooke, as Deputy Commissioner of the Alabama Department c Corrections, Larry Spears, asWarder, ofKilby Correctionsl Facility, and J. C. Davis, asWarden-of G. K. Fountain Correctional Institute, and their ager.ts and empployees Response reOrder toShow Cause of 3/29/83. Referred ttooJ-Jjdd e VVaarrrr.eerr.

: niA. ev. 1/75)
PLAINTIFF
NJ H .

, ET A L . ,

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT STATE OF ALABAMA
PROCEEDINGS

DOCKET NO. 3501-N

PAGEUP QF

PAGES

1983 lay 2 ay 20
June 10

Received copy of Supreme Court Order denying certiorari. Interim Report of Implementation Committee. Referred to Judge Varner.
Entire record on appeal (as designated) mailed certified mail return receipt requested to Clerk, U. S. Court of Appeals, Eleventh Circuit. (Copies of numbered docket entries mailed to Philip H. Butler, Robert D. Segall, John L. Carroll, Alvin L. Bronstein, Patricia G. Littlefield, Stephen Whinston, Terry R. Smyly, Rosa G. Hamlett Davis, Ken Wallis,M. R. Nachman,Jr., Jacquelyn Lufkin Stuart, Frank M. Wilson; furnished John C. Bell)

27
* ily 20
20 ! * 13!

ORDER that the Department of Corrections of the State of Alabama pay to Hon. Ralph I.Knowles, Jr., the sum of $45,314.28; to the Hon. John L. Carroll the sum of $20,751.76; and to Kon. Ginger E. Garrett the sum of $2,568.75 as reasonable sums for their expenses and attorneys' fees for services rendered on behalf of the Plaintiff Class from August 5, 1982, through January 24, 1983; DENYING application for reimbursement cf expenses incurred by Hon. Elizabeth Alexander of the National Prison Project. (Copies mailed counsel)
Defendants Freddie Smith, as Cor-dLssioner of the Alabama Department of Corrections, James Cook, as Deputy Commissioner of the Alabama Department of Corrections, Larry Spears, as Warden of Kilby Correc-icnal Facility, and J. 0. Davis, as Warden of G. X. Fountain Correctional Institute, request for hearing. Referred to Judge Varner.
De/jpnd-E-pis.! .Motion to SunDlenent, the Record,. Referred to Judge Varner. 0{y-.isj.iJ 7/J?//o3/ CCOD"1 es mai ' ec to counsel)
Derendants tree-die V.'Smitn, as Commissioner, James Cooke, as Deputy Commissioner and J. 0. Davis, as Warden, Notice of Appeal frotn order entered 6/27/83. (Copies furnished Philip H. Butler, Robert D. Segall John L. Carroll, John C. Sell, Jack Drake, Ralph I. Kncvles, Alvin L. Bronstein, Patricia G. Littlefield, Stephen Whinston, Ross. G. Hamlett Davis Terry R. Smyly, W. Scears Barnes, Jimmy Samford, M. R. Kachnan , Frank M. Wilson and Jacquelyn Lufkin Stuart; w/certified copy of docket entries to Clerk, U.S. Court of Appeals, 11th Circuit; copy handed to Lewis Wimberly)

21 ; 477 Supplemental interim report of implementation committee. Referred to Judge Varner.

ug 23

Defendants Freddie V. Smith, Janes Cooke, J. 0. Davis ar.d Larry Spears
Motion for Stay of Order Pending Appeal. Referred to Judge Varner Set on 9/8/83 Motion docket. Notices mailed 8/30/83.

2 '.. . (Plaintiffs' memorandum in opposition to defendants' motion for stay. Referred

;

] to Judge Varner.

6 4£2 i Plaintiff's Motion for Additional Relief, Motion for Temporary Restraining Order

533 • and Motion for Preliminary and a Permanent Injunction. (Exhibits A & B attached

;

j Referred to Judge Varner.

6 i

Rearing on Motion for Temporary Restraining Order.

534 Courtroom Deputy's Minutes of proceedings.(witness & exhibit lists attached)

DC irjk ' (Rev. 1/7S)
PLAINTIFF
K. H . KEKMAN, ET AL.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL.

-KAH

7-U-«O.7OK-4

DOCKET NO. 3501-N

PAGEZ!_OF

PAG!

t£

NR.

PROCEEDINGS

Sep. 8

ORDER denying plaintiffs' motion forTRO; setting plaintiffs' motion for preliminary andpermanent injunction fora hearing on 9/27/83 at 1:30 p.m. in Montgomery, AL. (Copies mailed to counsel.)

ORDER granting defendants Smith, Cooke, Davis and Spears' motion forstay conditioned upon the Movants' immediately filing a supersedeas bond with the Clerk of this Court as further set out in order. (Copies mailed to counsel.)

13

Plaintiffs' Notice of Taking Depositions of Consrissioner Freddie V. Smithand

Honorable Charles Graddick, Friday, September 23, 1983.

15

Plaintiffs' Motion for Continuance of Preliminary Injunction hearing.

Referred to Judge Varner.

16

ORDER continuing plaintiff's request forpreliminary injunction until 9/29/83

at 9:00 a.m., in Montgomery, AL. (Copies mailed to counsel.)

Supersedeas Bond in theamount of $85,000.00 approved by theCourt.

27

United States Motion to Withdraw Appearance of Stephen A. Vhinston. Referred

Judge Varner. [MOTION GRANTED 9/29/83; Copies mailed counsel]

Kotice of theHon. Alge_r_t S. Agricola, Jr. of appearance of counsel for defendant Graddick.

Deposition of Freddie V. Smith taken 9/23/83. SZE PLAINTIFF'S EX.ff1•FROM HEARING HELD 10-26-83 Deposition of Charles A. Graddick taken 9/23/83. SEE PLAINTIFF'S EX. -"2 FROM HEARING HELD 9-29-83 537 Plaintiff's Motion forAdditional Emergency Relief and/or Contempt. Referred t
Judge Varner.
29 ! 540 ORDER that a copy of the Order entered 9/28/83 b y theHon. Joseph Phelps in State of Alabama v. Freddie V. Smith be, and the same is hereby, entered as Defendants' Exhibit 4 in this cause. [Copies nailed counsel]
Hearing on plaintiff's motion for preliminary injunction. 29 542 Courtroom Deputy's Minutes of Proceedings on plaintiffs' request for prelimina
injunction [Exhibit list attached]

5-5 ORDER directing defendants Fred Smith and Charles Graddick to SHOW CAUSE in
writing, if any they have, as to why they shczild notbe held in contempt, on or before ten (10) cays from thedate of z.'r.±s order. (Copies furnished to counsel.)

Dcr

Supplemental record on appeal mailed by cmrrr r o Clerk, U.S. Court of

Appeals, Eleventh Circuit. [Copies of docket entries mailed counsel]

Jacquelyn Lufkin Stuart's Motion to Withdraw as Counsel of record forFreddie V Smith, a defendant. Referred to Judge Varner. IMOTION GRANTED 10/19/83; Cop: mailed counsel]

.75) •
^.INTIFr
H. NEWIAN, e : a l .
ATE ! NR. i

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, e t a l .
PROCEEDINGS

* ? ! - * * * 7 - ' J * r -;>fci I 5 !

D O C K - NC35O1-S

PAGE^IOF

?ASES

1 1 547 ^-efendant, Freddie V. Smith's Request for Evidentiary Hearing. Referred to Judge Vamer.
1 1 549 Defendant, Freddie V. Smith's Motion for Declaratory Relief and Instructions. Eaferrred to Judge Varner.
11 553 Defendant, Freddie V. Smith's Response to Show Cause Order 9/30/83. [Exhibits A-D attached] Referred to Judge Varner.
11 564 Defendant, Attorney General Charles A. Graddick's Motion to Dismiss and Respmse tc Show Cause Order. Referred to Judge Varner.

1 1 574 Defendant, Attorney General Charles A. Graddick's Suggestion of Moctr.ess.

Referred to Judge Varner.

'.

12 | 577
! 17 |
! ! i 18 579
i
18 j
i
24;584 j i

C-CZR setting p l a i n t i f f s ' motion filed 9/29/83 for additional emergency relief ;

ard/or contempt and the responses thereto for a hearing c- 10/26/33 at 9:01 a.m.;

directing defendants Fred Smith and Charles Graddick to personally appear

at said hearing; directing the U. S. Marshal for this d i s t r i c t to serve copies

of this Order upon defendants Smith and Graddick personally. [Copies nsilei

:

ccunsel; copies furnished to U. S. Marshal for personal service on cefenda-ts i

Fred Smith and Charles Graddick]

: i l a r s h a l ' s return on service of t h i s Court's order of 10/12.. 83, service on
Eon. Charles Graddick by serving Carolyn Griffin, secretary 10/12/33; service en Mr. Fred Smith by serving Mr. McAlpine, attorney, 10/12/33.

Interim Report of 10/14/83 of implementation committee Referred to J-dge 7 a — = r.

Notice of Appearance of Charles A. Schneider as co-counsel for Amicus Curiae. United States of America.
;
CRIIR amending this Court Order to Show Cause entered on 9/30/83 as furtherset out in order; denying defendant Graddicks's motion filed 10/11/83 to dismiss cr,in thealternative, fora core definite statement in =11 other respects.

•

[Copies mailed counsel]

24 ; 5 8 6 defendant Graddick's renewal of notion to modify. Referred to Judge V a m e r .

24 j

Defendant Graddick's trial brief. Referred to Judge V&rner.

24 ; 25 !'
26 28 :cc

I-efendant Smith's brief. Referred to Judge Varner. Plaintiff's Trial Memorandum in Support of Motion forConte-pt andPlea for
lalief. Referred to Judge Varner. Hearir.g on plaintiffs' motion for additional emergency relief and/cr cor.te.mzt. rcurtrcom Deputy's minutes of proceedings on plaintiff's nrticn for erergenty
relief [witness & exhibit lists attached].

DC 11U (Rev. 1/75)
PLAINTIFF'
N . H . NEWMAN, E T AL.
DATE NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
STATE OF ALABAMA, ET AL. PROCEEDINGS

DOCKET NO. PAGE 73 OF

594 MEMORANDUM OPINION
614 ORDER AND JUDGMENT restraining the defendants from enforcing the Order and
Judgment of the Circuit Court of Montgomery County, Alabama, entered in tt case of Graddick v. Smith prior to March 15, 1984; ORDERING Commissioner £ to continue to implement the SIR Program in accordance with his interprets thereof until March 15, 1984; ORDERING defendant'Graddick, for his contenp this Court, to pay into this Court on or before the twentieth day of each month, beginning on November 20, 1983, and continuing until the further or of this Court a sum equal to $1.00 for each State inmate held in any penal institution in this State wherein overcrowded conditions have existed for days or more; ORDERING Commissioner Smith that on March 15, 1984, and on c before the 15th day of each month thereafter, to release from confinement the number-of inmates by which State facilities are overcrowded. Such inm shall be selected by Cccoissioner Smith as further set out in order. Costs of these proceedings are hereby taxed against Defendant, Graddick, for whi execution may issue. [Copies mailed counsel]

616 ORDER amending this Court's Order and Judgment entered on November 4, 1983 b?
adding "a day" immediately after $1.00 in line 2 on page 2 of said Order ar Judgment. Said Order and Judgment shall otherwise remain in full force and effect. [Copies mailed counsel]
617 Notice of appeal of defendant Charles A. Graddick to the U.S. Court of Appea
Eleventh Circuit, from the opinion, order and judgment, and order entered this Court on 11/4/83. (Copies of notice nailed to Philip H. Butler, Patr Littlefield, Mitchel W. Dale, Charles A. Schneider, Charles A. Graddick, X Wallis, M. R. Kachiaan, Jr., Robert D. Segall, John L. Carroll, Alvin L. Bronstein, John F. Cameron, Frank M. Wilson, Algert S. Agricola, Jr., Rosa Hamlett Davis, Eva Ansley, and Clerk, U.S. Court of Appeals [w/certified c of docket entries]; copy furnished to John C. Bell.)

Motion of defendant-appellant Charles A. Graddick for stay pending appeal.

619

Referred to Judge Varner. Motion DENIED 11/4/83. (Copies furnished to Jo

Bell; mailed to remaining counsel.)

628 Interim report of 11/4/83 of implementation connsittee. Referred to Judge Varner.

14

Defendant, Freddie V. Smith's Motion to Vacate, Alter or Amend Order of 11/4/S

or in the Alternative, for Clarification. Referred to Judge Varner. Set c

12/6/83 MOTION DOCKET. Notices mailed 11/18/83.

:Cov. 14 632 i Appellant, Cnarles A. Graddick's designation of record on appeal.

15 ;

Report of defendant, Freddie V. SMith, pursuant to order of 11/4/83.

[Exhibits attached] Referred to Judge Varner.

16 !

O R D E R of U . S . C o u r t of A p p e a l s , 11th C i r c u i t denying appellants' ootion for stay pending, appeal; granting appellants' motion to expedite arp

75) JNTIrr

H. NEWMAN, e t a l .

\TE

NR.

CIVIL DOCKET CONTINUATION SHEET I DEFENDANT
{. STATE OF ALABAMA, e t a l . PROCEEDINGS

DOCKET NO. _ = ! PAGE_7_4oF PAGES'

17

Attorney General Charles A. Graddick's Petition for Instructions as to Amount of

Contempt Fine. Referred to Judge Varner.- [Set en 12/6/83 MOTION DOCKET.

I Notice mailed 11/18/83.

21

^Defendant Freddie V. Smith's Petition to Modify and for Other relief. Referred

to Judge Varner.

23

Charles A. Graddick's Motion to Relieve Attorney General Graddick of Contenpt

and Contempt Fine. Referred to Judge Varner.

i
28 639 : Appellant's clarification of designation of record on appeal to include

the Memorandum Opinion with Order and Judgment of 11/4/83 (in letter fora).

; Court reporter's transcript of proceedings held 9/6/83 on Motion for TRO (1 v o l ) , proceedings held 9/29/83 on Request for Prelicir.ary Injunction (1 vol) z-& proceedings held 10/26/83 on Motion for Emergency belief (1vol).
I (UNDER SEPARATE COVER.) ''
I Entire designated record on appeal mailed by cmrrr to Clerk, U.S. Court of Appeals, i 11th Circuit (priority mail). (Copies mailed pltf. and counsel)

Pugh v. Sullivan PC-AL-010-007

 
 559 F.2d 283 (1977)
N. H. NEWMAN et al., Plaintiffs-Appellees, v.
STATE OF ALABAMA et al., Defendants-Appellants. Jerry Lee PUGH, for himself and others similarly situated, Plaintiffs-Appellees,
v. Judson C. LOCKE, Jr. and State of Alabama, et al., Defendants-Appellants.
Worley JAMES et al., Plaintiffs-Appellees, v.
George C. WALLACE et al., Defendants-Appellants.
No. 76-2269.
United States Court of Appeals, Fifth Circuit.
September 16, 1977. Rehearing and Rehearing Denied November 7, 1977.
2845 *284 *285 William J. Baxley, Atty. Gen., George Beck, Larry R. Newman, Asst. Attys. Gen., Robert S. Lamar, Jr., Montgomery, Ala., for Locke, et al., and State of Alabama, et al.
286 *286 W. Scears Barnes, Jr., Alexander City, Ala., for Locke and all Board Members.
Thomas S. Lawson, Jr., William K. Martin, Montgomery, Ala., for Wallace, et al.
John C. Hoyle, Atty., Dept. of Justice, Civil Rights Div., Washington, D. C., for amicus, U.S.A.
Joseph D. Phelps (court-appointed not under Act), Montgomery, Ala., for Newman, et al.
Robert D. Segall (Court-Appointed not under Act), Joseph J. Levin, Jr., Montgomery, Ala., for Pugh, et al.
George Peach Taylor (Court-Appointed not under Act), University, Ala., for James, et al.
Alvin J. Bronstein, The National Prison Project, Matthew L. Myers, Washington, D. C., for National Prison Project, amicus curiae.
Walter W. Barnett, Stephen A. Whinston, Atty., Depart. of Justice, Washington, D. C., for the United States, amicus curiae.
Before COLEMAN, Circuit Judge, KUNZIG[*], Judge, and GEE, Circuit Judge.
Rehearing and Rehearing En Banc Denied November 7, 1977.
COLEMAN, Circuit Judge.
The Eighth Amendment to the Constitution of the United States, reinforced by the Fourteenth Amendment, prohibits the imposition of cruel and unusual punishment. It is much too late in the day for states and prison authorities to think that they may withhold from prisoners the basic necessities of life, which include reasonably adequate food, clothing, shelter, sanitation, and necessary medical attention, Gates v. Collier, 5 Cir., 1974, 501 F.2d 1291; Newman v. Alabama, 5 Cir., 1974, 503 F.2d 1320, cert. denied 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102; Williams v. Edwards, 5 Cir., 1977, 547 F.2d 1206.
It should not need repeating that compliance with constitutional standards may not be frustrated by legislative inaction or failure to provide the necessary funds, Gates v. Collier, supra, at 1319; Smith v. Sullivan, 5 Cir., 1977, 553 F.2d 373.

On the other hand, lawful incarceration necessitates withdrawal of or limitations upon many individual privileges and rights. A prisoner does not retain constitutional rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Wide ranging deference must be accorded the decisions of prison administrators. They, and not the courts, must be permitted to make difficult judgments concerning prison operations, Jones v. North Carolina Prisoners' Labor Union, Inc. [1977], ___ U.S. ___, 97 S.Ct. 2532, 53 L.Ed.2d 629. In his concurring opinion in Jones, Mr. Chief Justice Berger wrote that in penal matters the federal courts may not "second guess" legislatures and prison administrators except in the most extraordinary circumstances.
The present case is somewhat similar to Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561. There petitioners claimed that the judgment of the District Court represented an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. The Supreme Court found itself "substantially in agreement with th(o)se claims", at 366, 96 S.Ct. at 602. The case involved an "assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers".
The Supreme Court said,
"Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the `special delicacy of the adjustment to be preserved between federal equitable power and state administration of its own law'. * * * Even in an action between private individuals, it has long been held that an injunction is `to be used sparingly, and only in a clear and plain case'."
287 *287 The Court concluded that when the District Court injected itself into the internal disciplinary affairs of the Philadelphia Police Department, a state agency, it had departed from the controlling precepts of federalism in determining the availability and scope of equitable relief. The judgment of the Court of Appeals affirming the decree of the District Court which directed the imposition of a comprehensive program for dealing adequately with civilian complaints was reversed.
This does not mean that Constitutional standards are not to be scrupulously observed or that the statutes designed to enforce that objective are to be denied full effect. It does mean in the prison context that federal courts should keep their eyes on the main objective, the Eighth Amendment command for the eradication of cruel and unusual punishment. The remedy must be designed to accomplish that goal, not to exercise judicial power for the attainment of what we as individuals might like to see accomplished in the way of ideal prison conditions. There are those who would argue that imprisonment in any form is cruel and unusual. The Amendment, however, recognizes the right to punish for criminal conduct as long as that punishment does not escalate to the cruel and unusual.
For example, we have held that visitation privileges are matters subject to the discretion of prison officials, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1334.
Failure of prison authorities to provide a rehabilitation program does not by itself constitute cruel and unusual punishment, Ibid, at 1335.
Federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they, in their broad discretion, may deem appropriate, Ibid, at 1334; Young v. Wainwright, 5 Cir., 1971, 449 F.2d 338.
State penitentiaries are occupied by convicted felons, either ineligible for or found to be unworthy of probation. By its very nature, the operation of such a prison is a dangerous undertaking. Time and time again, experience has dramatically taught that the management and control of prisons, the prevention of mass violence within prisons, and the safe retention of convicts within prison walls, present problems of the first magnitude, in which failures occur all too often, as recently demonstrated at Brushy Mountain, Tennessee. There was intense nationwide interest when a notorious prisoner escaped but not much concern had previously been shown for the problems of prison officials in trying to hold him inside the walls.

The authority to manage and control a felony prison should never be unduly restricted or divided. That authority must repose in one well identified place, limited only by the requirements of the law.
I
This appeal is concerned with the remedies prescribed by the very able District Court for the eradication of cruel and unusual punishment in the Alabama State Prison System, Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala., 1976). At the federal level this involves a comparatively new field of the law. It was not until 1962 that the Supreme Court applied the Eighth Amendment ban to the states through the Fourteenth Amendment, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.
The State concedes that the evidence established excessive overcrowding in these prisons, that there were not sufficient guards to reasonably protect the inmates from one another, and that the overcrowding was primarily responsible for and exacerbated all the other ills of the penal system. As detailed in its published opinion, other indefensible conditions were found by the District Court, findings clearly supported by the evidence.
At the outset, then, the case is reduced to a constitutional appraisal of the remedies required of the State. The State contends that in fashioning those remedies the District Court "exceeded its judicial power and abused its discretion".
288 *288 Our first response is that the determined efforts of the highly dedicated District Judge to put an end to unconstitutional conditions in the Alabama prison system merit high commendation. We cannot believe that the good people of a great state approved the prison situation demonstrated by the evidence in this case. We note, too, that for more than a year funds for an entirely new prison have been available as the result of legislative action, which is likewise commended. A state has no higher duty than the preservation of its governmental integrity by the enforcement of its own laws, which inescapably includes the maintenance of an effective state prison system. This Court expresses the hope that the difficulties encountered in naming a location for the new prison will be speedily resolved.
Our real issue is whether in striving to attain constitutional objectives the District Court in a few respects went impermissibly beyond the requirements of the federal constitution; more specifically, did the Court supersede the duly constituted state authorities in the performance of vital state functions rather than compelling those authorities to perform those functions in a constitutional manner? We all understand, of course, that federal courts have no authority to address state officials out of office or to fire state employees or to take over the performance of their functions. Most assuredly, however, in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States.
At the outset we hold that the steps taken by the District Court to ensure reasonably adequate food, clothing, shelter, sanitation, necessary medical attention, and personal safety for the prisoners were within its sound discretion and will not be disturbed on appeal. Some of the steps in regard to these matters, if considered in isolation, may have gone beyond constitutional mandates but they were justifiably invoked for the eradication of Eighth Amendment conditions. We do not pause to discuss a number of state contentions which are foreclosed by our opinion in Williams v. Edwards, 5 Cir., 1977, 547 F.2d 1206, decided after this appeal was filed and briefed.
There are a few features of the case, however, in which we are of the opinion that less intrusive, but equally effective, measures should have been taken by the District Court. An adjustment of these matters within constitutional bounds should not hamper or impede the attainment of an effective, constitutionally operated state penal system. As to these matters, we think some modifications are in order. With those modifications, the judgment of the District Court will be affirmed and the case remanded for further proceedings not inconsistent herewith.

II
Unless intended to apply only to existing facilities we do not discern the constitutional basis for the requirement that Alabama state prisoners shall be housed in individual cells, nor can we agree that "design" standards, without more, amount to a per se constitutional limitation on the number of prisoners which may be housed in a particular prison facility. Those who design prisons are not vested with either the duty or the power to prescribe constitutional standards as to prison space. Assuming that the District Court intended these limitations to apply only to presently existing prisons and not to those hereafter to be constructed the judgment in these respects is affirmed.
The Court required that all new prison construction should provide sixty square feet of space per prisoner. We remand this requirement to the District Court for further consideration in the light of our opinion in Williams v. Edwards, 547 F.2d, at 1215.
III
The District Court established and appointed a "Human Rights Committee", composed of 39 individuals. Whether 289 they *289 were qualified by training or experience in the operation of a state prison system is not shown. At State
expense, the Committee was authorized to employ a fulltime staff consultant, other specialists, and a fulltime clerk-stenographer. The Committee members were to be compensated at the same rate as that paid the Alabama State Board of Corrections.
The Committee was authorized to monitor implementation of the standards prescribed by the Court's decree as well as those prescribed in Newman v. Alabama.[1] The Order provided that
"[T]he Committee may at reasonable times inspect the state prison facilities, interview inmates, and inspect institutional records. The Committee shall review plans for implementation of this decree to ensure that they comport with minimum standards set forth. . . . . The Committee shall be authorized to take any action [emphasis added] reasonably necessary to accomplish its function."
Our initial reaction is that "reviewing plans for implementation of this decree to ensure that they comport with minimum standards set forth" could more properly have been assigned to the magistrate or to a master, qualified to hold hearings, make findings of fact, and report to the Court for its approval or disapproval. Moreover, the authority to "take any action", with no accompanying standards or limitations, could amount, in practical effect, to turning the administration of the prisons over to the Committee, as, in some respects, appears to have occurred.
It may be that in setting up the Committee the Court had in mind the appointment of numerous biracial committees in school desegregation cases. The analogy is not altogether inapposite but we are not aware of any school desegregation decree in this Circuit which authorized such committees to do more than assemble information, confer, advise, and make representations to the school board and the court. They did not participate in "day to day" school operations, they received no compensation, and their function did not have either the appearance or the effect of superseding school boards or faculties in the daily administration of the school systems. Additionally, the circumstances surrounding the operation of schools are quite different to those prevailing in the operation of a penitentiary.
The State asserts, and it is not disputed, that in a number of instances prison authorities and their counsel were not notified of meetings between committee members and the District Court with reference to prison operations; therefore, state counsel were unable to participate or to be heard.
The State further asserts that the Committee impermissibly interfered with the Alabama Board of Corrections and its duly authorized agents in the exercise of powers and duties exclusively conferred upon them by Alabama law.

We have examined numerous letters appearing in the printed Appendix, signed by the Chairman of the 39 member Committee, addressed to the Alabama Board of Corrections or its agent, in which the addressees were directed to take specified action in regard to certain matters. These letters state that they were written at the direction of the District Court.
From the record, we are left with the firm conviction that the Committee undoubtedly did impermissibly intrude, and had every appearance of impermissibly intruding, upon functions properly belonging to the daily operation of the Alabama prison system. Prison officials cannot be expected to perform in an efficient or an effective manner if they are required to stay in line with so numerous a Committee, at the same time constantly confronted with the spectre of federal contempt of court.
290 *290 This is not to say that the District Court could not take and should not have taken appropriate steps to ensure compliance with its remedial decree. We think, however, that a more reasonable, less intrusive, more effective approach would have been to name one monitor for each of the prisons involved, with full authority to observe, and to report his observations to the Court, with no authority to intervene in daily prison operations.
The use of a single monitor was the approach, not disapproved by this Court, in Gates v. Collier, supra.
The oversight of the proposed monitors might well be placed in the hands of a magistrate or a master, who could deal with alleged, but disputed, non-compliance in findings of fact and conclusions of law, subject to the ultimate decision of the District Judge, where appropriate.
By the single monitor method, the prison authorities will be diverted from the execution of their duties to the extent of conferring and cooperating with only one court-authorized individual. As a matter of fact, informal conferences between the warden and only one individual holding a charter from the Court would likely put an end to many problems without any necessity for further reference.
Such a monitor should be a person of undeniable qualifications, carefully chosen, hopefully with experience in the operation of a state or federal prison system which has not been in litigation over failure to abide by the Constitution.
Upon remand, and no later than thirty days from the receipt of our mandate, the District Court should dissolve the 39 member Committee and its functions should be terminated. The Court should name a monitor for each of the prisons which are the subject of the remedial decree. The guidelines for the monitors, and the duties of the prison authorities as to their cooperation with those monitors, should be specifically spelled out by an appropriate order so that none of those involved will suffer any reasonable doubt as to what is required of both monitors and prison officials.[2]
When so appointed, and their functions defined, the monitors may be paid reasonable compensation, consistently with their qualifications and experience, to be recovered from the State of Alabama as a part of the reasonable costs of this litigation.
Since the order appointing the 39 member Committee was not void ab initio the compensation and expense of its members and staff as heretofore fixed by the District Court will stand undisturbed, to be paid by the State as a part of the costs of this critically important litigation.
IV
Appellants complain vigorously of the actions of the District Court in assigning a major role in the classification of prisoners to the Prison Classification Project of the University of Alabama. In response to an inquiry propounded by this Court through appropriate judicial channels we are now in possession of an order entered by the District Court on July 19, 1977, in which the Court adjudged that the University of Alabama group is no longer functioning insofar as these cases are concerned. That being true, we find this aspect of the appeal to be moot. We make no comment thereon except to say that we understand the classification of prisons in the Alabama prison system will hereafter proceed under the control and direction of the duly constituted Alabama prison authorities, with no

interference or participation by any outside group, saving, of course, the right of the District Court by appropriate measures, if needed, to see to it that constitutionally required classification standards, if any, are observed by the prison authorities in the exercise of a function which is fundamentally theirs, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332.
291 *291 V
Failure of prison authorities to provide a rehabilitation program, by itself, does not constitute cruel and unusual punishment, McCray v. Sullivan, 5 Cir., 1975, 509 F.2d 1332, 1335.
Amicus Curiae, the United States, concedes that there is no constitutional right to rehabilitation for prisoners. It does proceed to argue, however, that "states have a duty to insure that the mental, physical, and emotional status of prisoners in their custody do not deteriorate". On the face of it, this is not a well considered statement. The mental, physical, and emotional status of individuals, whether in or out of custody, do deteriorate and there is no power on earth to prevent it. We think that what the government must have meant is that states may not inflict cruel and unusual punishment that would likely lead to such results. The briefs for the parties plaintiff and for the State of Alabama deal with this idea to considerable length. We decline to enter this uncharted bog. If the State furnishes its prisoners with reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety, so as to avoid the imposition of cruel and unusual punishment, that ends its obligations under Amendment Eight. The Constitution does not require that prisoners, as individuals or as a group, be provided with any and every amenity which some person may think is needed to avoid mental, physical, and emotional deterioration.
Even so, on the facts of this case, we affirm the actions of the District Court designed to provide Alabama prison inmates with reasonable recreational facilities. We do this simply because such facilities may play an important role in extirpating the effects of the conditions which undisputably prevailed in these prisons at the time the District Court entered its order.
VI
The District Court directed that inmates should be allowed to receive visitors on at least a weekly basis. Under our decision in McCray v. Sullivan, we feel that visitation regulations should be left to the prison authorities, wisely adapted to individual circumstances if their sound discretion should so dictate, or included in general rules which will allow prisoners reasonable visitation.
The Court further directed that visitors should not be "subjected to any unreasonable searches". Of course, no citizen not a prisoner may be subjected to unreasonable searches. Even so, within a prison the prime consideration is the preservation of the safety and security of the prison, including the exclusion of contraband. Prison authorities have both the right and the duty by all reasonable means to see to it that visitors are not smuggling weapons or other objects which could be used in an effort to escape or to harm other prisoners. They have a duty to intercept narcotics and other harmful contraband. This is no more an intrusion on the rights of visitors than the requirement that persons about to board commercial aircraft shall have their persons and baggage electronically searched for the purpose of determining that they are not carrying weapons, United States v. Cyzewski, 5 Cir., 1973, 484 F.2d 509, cert. denied, 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459. That which would be unreasonable in the outside world may be indispensable within a prison.
Additionally, we conclude that prison authorities should not be required to maintain prison security with one eye on the subject and the other on the consequences of contempt, in which the District Court could convert a warden into prisoner. If abuses actually exist, there are other remedies less likely to interfere with the ongoing safety of the prison.
Upon remand the District Court should eliminate this item from its decree, reserving the right to take the necessary action with reference to actual abuses if they persist to an extent justifying injunctive relief.

VII
292 The injunction included the Governor of Alabama. Our examination of the record *292 indicates that he has no hand in the operations of the Alabama penal system beyond the customary budget recommendations to the legislature and the appointment of the Alabama Board of Corrections. The statute vests all power and control in the Board. Upon remand, the District Court should dissolve the injunction entered against the Governor. The same action should be taken as to those members of the Board and other prison officials who are no longer in office and thus have no further responsibility for the implementation of the Court decree. To the extent herein approved, the injunction will, of course, remain in full force and effect as to those actually running the system until such time as it may be shown in the District Court that the prisons are being operated in a constitutional manner. That the Court should remove itself from prison operations at the earliest date consistent with the vindication of constitutional rights is no doubt well known to the District Court.
VIII
The District Court directed that each prisoner shall be assigned to a meaningful job on the basis of his or her abilities and interests, and according to institutional needs. While there is no federal constitutional mandate for this proviso, as phrased it should not impose any real burden on the penitentiary authorities, so, in the context of this case we allow it to stand, not, however, to enjoy any precedential status in future cases if they should arise.
We interpret those portions of the Order dealing with opportunities to obtain a basic education, to attend vocational school, and to attend a transitional program prior to release as meaning that if the prison authorities operate such programs each prisoner shall have impartially equal access on an objective standard of basic utility to the individual. We would find it difficult to hold, and we do not now hold, that if the state has no such programs it amounts to cruel and unusual punishment within the prohibitions of the Eighth Amendment. As a matter of fact, in the operation of a good prison system, we understand that such programs are fairly standard practices, instituted and operated on the initiative of state prison authorities.
Conclusion
With the modifications herein enumerated, the judgment of the District Court is affirmed. The case is remanded for further proceedings consistent herewith and for such other and further action as the District Court, pending the termination of this litigation, may find it necessary to take for the vindication of Eighth Amendment rights.
AFFIRMED and REMANDED.
[*] Judge of the United States Court of Claims, sitting by designation.
[1] D.C., 349 F.Supp. 278, affirmed in part, 5 Cir., 1974, 503 F.2d 1320, cert. denied 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102.
[2] It may be that one monitor could adequately take care of more than one prison. If so, the District Court may act accordingly.
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 406 F.Supp. 318 (1976)
Jerry Lee PUGH, for himself and all others similarly situated, Plaintiffs, v.
Judson C. LOCKE, Jr., individually and in his official capacity as Commissioner of the Alabama Board of Corrections, et al., Defendants.
WILCOX COUNTY COMMISSION, as the governing body of the County of Wilcox, State of Alabama, and all other counties similarly situated, and Association of County
Commissions of Alabama, a voluntary association, Intervening Ancillary Plaintiffs, v.
Melba Till ALLEN, individually and as State Treasurer, State of Alabama, et al., Ancillary Defendants,
Ira DeMent, United States Attorney, Amicus Curiae. Worley JAMES et al., Plaintiffs, v.
George C. WALLACE, individually and in his official capacity as Governor of Alabama, et al., Defendants.
WILCOX COUNTY COMMISSION, as the governing body of the County of Wilcox, State of Alabama, and all other counties similarly situated, and Association of County
Commissions of Alabama, a voluntary association, Intervening Ancillary Plaintiffs, v.
Melba Till ALLEN, individually and as State Treasurer, State of Alabama, et al., Ancillary Defendants,
The National Prison Project of the American Civil Liberties Union Foundation, Inc., and Ira DeMent, United States Attorney, Amici Curiae.
Civ. A. Nos. 74-203-N, 74-57-N.
United States District Court, M. D. Alabama, N. D.
January 13, 1976.
312901 *319 *320 *321 Robert D. Segall, Hobbs, Copeland, Franco & Screws and Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs Pugh.
William J. Baxley, Atty. Gen., Larry R. Newman, Asst. Atty. Gen., State of Ala., and Robert S. Lamar, Jr., Special Asst. Atty. Gen., Ball, Ball, Matthews & Lamar, Montgomery, Ala., for defendants and ancillary defendants.
James W. Webb, Montgomery, Ala., for intervening ancillary plaintiffs.
Ira DeMent, U. S. Atty., and Kenneth E. Vines, Asst. U. S. Atty., M. D. Ala., Montgomery, Ala., for amicus curiae.
George Peach Taylor, University, Ala., for plaintiffs James et al.
Matthew L. Myers and Alvin J. Bronstein, Washington, D. C., and Ralph I. Knowles, Jr., University, Ala., for amicus The National Prison Project of the American Civil Liberties Union Foundation, Inc.
MEMORANDUM OPINION
JOHNSON, Chief Judge.

In these consolidated class actions,[1] plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for deprivation of their Eighth and Fourteenth Amendment rights. This Court has jurisdiction under 28 U.S.C. §§ 1343, 2201 and 2202. This Court, as authorized by Rule 52 of the Federal Rules of Civil Procedure, incorporates in this memorandum opinion the appropriate findings of fact and conclusions of law.
The Court finds that these actions are maintainable as class actions under Federal Rule 23(a) and (b)(2). The class is composed of all persons presently confined by the Alabama Board of Corrections or who may be so confined in the future. The Court finds that the class is so numerous that joinder is impracticable; that the questions of law and fact presented by the named plaintiffs are common to the class, as are the claims presented by the class representatives; and that the competent representation provided the named plaintiffs will adequately protect the interests of the class as a whole. The Court further finds that the defendants in both cases have acted and refused to act on grounds applicable to the class, for which both declaratory and injunctive relief are appropriate. The defendants, sued in their individual and official capacities, are the Governor of Alabama, the Commissioner of the Alabama Board of Corrections,[2] the Deputy Commissioner of the Alabama Board of Corrections, the members of the Board of Corrections, the Warden of Kilby Corrections Facility,[3] and the Warden of G. K. Fountain Correctional Center. The predecessors in office of these defendants, who were sued in their individual and official capacities, are retained as individual defendants. The Court has also had the able assistance of United States Attorney Ira DeMent and the American Civil Liberties Union National Prison Project, as amici curiae.
The complaint in Pugh v. Locke was originally filed by an inmate of G. K. Fountain Correctional Center on February 26, 1974. The amended complaint was filed by court-appointed counsel on April 16, 1974, seeking 322 declaratory, injunctive *322 and monetary relief for the alleged failure of defendants to adequately protect the plaintiff class from violence on the part of other inmates. The complaint was filed on behalf of a class composed of all inmates of the state penal system who have been or may be confined to G. K. Fountain Correctional Center and who have been, are, or may be subjected to such violence. At the request of plaintiffs, the claims for monetary damages were severed by order of June 27, 1975. The action proceeded on the claims for declaratory and injunctive relief.
The original complaint in James v. Wallace was filed on June 21, 1974. An amended complaint was filed thereafter on July 29, 1974, by court-appointed counsel. That complaint, on behalf of all inmates incarcerated in state penal institutions, essentially alleges that defendants fail to provide adequate rehabilitation opportunities for inmates, maintain conditions in these institutions which make rehabilitation impossible, and provide the opportunities that do exist in an unequal manner0907all in violation of plaintiffs' Eighth and Fourteenth Amendment rights.
After extensive pretrial discovery by parties and amici curiae, the cases were heard beginning August 20, 1975, in a trial that lasted seven days. Because many facts were stipulated, the evidence at the trial consisted largely of expert testimony. The cases are now submitted on evidence offered at trial, depositions, exhibits, photographs, briefs and over 1,000 stipulated facts. The trial concluded with the admission by defendants' lead counsel, in open court, that the evidence conclusively established aggravated and existing violations of plaintiffs' Eighth Amendment rights.
The Alabama Board of Corrections (hereinafter the Board) is charged with the responsibility for managing the state's penal institutions.[4] The Board currently operates four large institutions for male inmates 0907Holman Unit Prison, G. K. Fountain Correctional Center, Draper Correctional Center, and Kilby Corrections Facility. Kilby also contains the hospital facility for all state prisoners and the classification center for male inmates. The Board also maintains Julia Tutwiler Prison for women and the Frank Lee Youth Center for young men.[5] Additionally, there are six road camps, one pre-release center, and eight work-release centers. Currently the inmate population of these institutions is in excess of 5,000.
The four principal institutions are horrendously overcrowded. At the time of the trial of these cases the prison population in these four institutions was as follows:

Fountain Holman Draper Kilby

Maximum Number for Which Designed 632 540 632 503

Number in Custody
Over 1100 Over 750 Over 1000 Over 700

The overcrowded condition of these institutions is the subject of another class action, McCray v. Sullivan, 399 F.Supp. 271 (S.D.Ala.1975). Following the close of evidence in the instant cases, a joint interim order was entered by this Court and the McCray court, enjoining the defendants from accepting any new prisoners, except escapees and parole violators, into these four institutions until the population in each is reduced to design capacity.[6] The purpose of that emergency order was to prevent aggravation of the conditions created by the grave Eighth Amendment violations.

323 The effects of severe overcrowding are heightened by the dormitory living arrangements *323 which prevail in these institutions. Bunks often are packed together so closely that there is no walking space between them. Sanitation and security are impossible to maintain. There was testimony that the quarantine population at Kilby[7] is so crowded that inmates have to sleep on mattresses spread on floors in hallways and next to urinals. As will be noted, overcrowding is primarily responsible for and exacerbates all the other ills of Alabama's penal system.

The dilapidation of the physical facilities contributes to extremely unsanitary living conditions. Testimony demonstrated that windows are broken and unscreened, creating a serious problem with mosquitoes and flies. Old and filthy cotton mattresses lead to the spread of contagious diseases and body lice. Nearly all inmates' living quarters are inadequately heated and ventilated. The electrical systems are totally inadequate, exposed wiring poses a constant danger to the inmates, and insufficient lighting results in eye strain and fatigue.

In general, Alabama's penal institutions are filthy. There was repeated testimony at trial that they are overrun with roaches, flies, mosquitoes, and other vermin. A public health expert testified that he found roaches in all stages of development0907a certain indicator of filthy conditions. This gross infestation is due in part to inadequate maintenance and housekeeping procedures, and in part to the physical structure of the buildings themselves. For example, floors in many shower rooms are so porous that it is impossible to keep them clean. Plumbing facilities are in an exceptional state of disrepair. In one area at Draper, housing well over 200 men, there is one functioning toilet. Many toilets will not flush and are overflowing. Some showers cannot be turned off and continually drip or even pour water. Frequently there is no hot running water for substantial periods of time. Witnesses repeatedly commented on the overpowering odor emanating from these facilities.

Personal hygiene is an insurmountable problem in these circumstances. The parties stipulated that the state supplies prisoners only with razor blades and soap. It was further stipulated that the state furnished no toothpaste, toothbrushes, shampoo, shaving cream, razors or combs; but that such items are available for those inmates who can afford them. Further, household cleaning supplies rarely are available for inmates to maintain their living areas.

Food service conditions are equally unsanitary. Food is improperly stored in dirty storage units, and is often infested with insects. Mechanical dishwashers are not adequately maintained and therefore do not even approach the minimum temperature required for proper sanitation. Moreover, food service personnel, many of whom are inmates, are often untrained and do not follow proper sanitation procedures in the handling and preparation of food. Inmates are not supplied with reasonable eating and drinking utensils; some inmates drink from used tin cans, and have to wash and save their own utensils from meal to meal. Garbage sits in large open drums throughout the dining halls. As a general rule, the food is unappetizing and unwholesome. Inmates with some source of funds may supplement their diets from the prison canteen, but the large majority must subsist only on what is supplied by the kitchen. One menu is prepared for all inmates who require a special diet, regardless of whether it meets their particular needs.

One expert witness, a United States public health officer, toured facilities at Draper, Fountain, Holman, and Kilby. He testified at trial that he found these facilities wholly unfit for human habitation according to virtually every 324 criterion *324 used for evaluation by public health inspectors. With very few exceptions, his testimony was that, if such facilities were under his jurisdiction, he would recommend that they be closed and condemned as an imminent danger to the health of the individuals exposed to them. This Court credits this testimony and makes it a part of these findings.
There is no working classification system in the Alabama penal system, and the degree to which this impedes the attainment of any proper objectives of a penal system cannot be overstated. Although classification personnel throughout the state prisons have been attempting to implement a wholly new classification process established in January, 1975, understaffing and overcrowding have produced a total breakdown of that process. For no valid reason apparent from the evidence, far too many inmates receive maximum security classifications under the present classification system. Moreover, during what is called the classification process, new inmates, who are already trying to adjust to the new environment of the prison, are restricted to the overcrowded living quarters and are permitted neither visitors nor recreation. Testing and evaluation of these individuals, essential to a working classification system, cannot be regarded as reliable or even useful when conducted under such traumatic and stressful conditions.
Prison officials do not dispute the evidence that most inmates are assigned to the various institutions, to particular dormitories, and to work assignments almost entirely on the basis of available space. Consequently, the appreciable percentage of inmates suffering from some mental disorder is unidentified, and the mentally disturbed are dispersed throughout the prison population without receiving treatment. This Court previously found in an Alabama prison system case that approximately 10 percent of the inmate population are psychotic, and that another 60 percent are disturbed enough to require treatment.[8] The evidence in the instant cases clearly reflects that nothing has been done to alleviate this situation. Some of these inmates should, according to the undisputed evidence presented in these cases, be transferred to a facility for the criminally insane, and many others should be treated within the penal system. The evidence further reflects that there are also a number of mentally retarded inmates who need to be, according to any humanitarian concept, identified and placed in an appropriate environment. A 1972 study prepared by the University of Alabama Center for Correctional Psychology, under contract with the Board of Corrections, highlighted the woefully inadequate mental health program in Alabama prisons and suggested minimum standards. None of these recommended standards have been implemented. The findings and conclusions of that study are fully supported by the evidence in these cases.
Further effects of failure to classify are manifold. Violent inmates are not isolated from those who are young, passive, or weak. Consequently, the latter inmates are repeatedly victimized by those who are stronger and more aggressive. Testimony shows that robbery, rape, extortion, theft and assault are everyday occurrences among the general inmate population. Rather than face this constant danger, some inmates voluntarily subject themselves to the inhuman conditions of prison isolation cells.
Emotional and physical disabilities which require special attention pass unnoticed. There is no rational basis on which to assign inmates to the few vocational, educational and work opportunities which do exist. All of this contributes to the apathy, tension and frustration which pervade Alabama prisons.
The inmate population also contains a number of aged and infirm who are often housed in dormitories in which 325 conditions are particularly hazardous. There *325 are no special programs to meet the needs of these people and
they are frequently unprotected from the general population. For example, in Draper such prisoners 0907some of them confined to wheelchairs, others scarcely able to move without help 0907are left without supervision in secondfloor quarters that are accessible only by stairway, with no means of evacuation in the event of fire or other physical emergency, and utterly helpless in the event of the sort of medical emergency to which the elderly are susceptible. In this idleness, filth and despair, the condition of these inmates can be expected only to deteriorate further.
Each of these failings in Alabama's penal system is compounded by that system's most pervasive and most obvious problem: the overcrowding with which all prisoners must live. Yet even if the inmate population were reduced to design capacity, the system would still be woefully understaffed. Former Commissioner Sullivan

testified that the four large institutions alone need, at a minimum, 692 guards, but that they currently employ only 383. Guards rarely enter the cell blocks and dormitories, especially at night when their presence is most needed. The extremely high inmate-to-staff ratio makes personal interaction between the two virtually impossible because staff members must spend all their time attempting to maintain control or to protect themselves.
Another result of understaffing is that some inmates have been allowed to assume positions of authority and control over other inmates, creating opportunities for blackmail, bribery, and extortion. Some prisoners are used as "strikers" to guard other inmates on farm duty and as "cell flunkies" to maintain order and perform tasks for prison staff. They are afforded special privileges, including freedom to ignore prison regulations and to abuse other inmates. Inmate clerks have access to the institutional files and mail of other inmates; inmate medical aides are used to dispense some medication, which they may withhold at will.
The problems posed by understaffing are aggravated by the fact that most of the large institutions are located in rural areas of the state. The guards, drawn largely from the local population, are practically all white and rural in contrast to the predominantly black and urban inmate population they supervise. A number of witnesses testified that staff members address black inmates with racial slurs, further straining already tense relations.
In view of the foregoing, the rampant violence and jungle atmosphere existing throughout Alabama's penal institutions are no surprise. The evidence reflects that most prisoners carry some form of homemade or contraband weapon, which they consider to be necessary for self-protection. Shakedowns to remove weapons are neither sufficiently thorough nor frequent enough to significantly reduce the number of weapons. There are too few guards to prevent outbreaks of violence, or even to stop those which occur.
While it is clear that violence is widespread, there are no accurate statistics on the incidence of violence. A cardinal precept of the convict culture is that no inmate should report another inmate to officials. This reluctance to report violence is compounded by the failure of prison officials to keep accurate records of violence which does come to their attention.
One 20-year-old inmate, after relating that he has been told by medical experts that he has the mind of a five year old, testified that he was raped by a group of inmates on the first night he spent in an Alabama prison. On the second night he was almost strangled by two other inmates who decided instead that they could use him to make a profit, selling his body to other inmates.
An inmate required to live in these circumstances stands no chance of leaving the institution with a more positive and constructive attitude than the one he or she brought in. The evidence reflects that even if rehabilitation 326 programs, adequate in number and quality, *326 were available, whatever benefit might be derived from them could be undone quickly by this inhumane environment. Consequently, this Court finds that these conditions create an environment in which it is impossible for inmates to rehabilitate themselves or 0907 to preserve skills and constructive attitudes already possessed0907even for those who are inclined to do so. Further, this Court finds that these conditions create an environment that not only makes it impossible for inmates to rehabilitate themselves but also makes dehabilitation inevitable.
Inmates are denied any meaningful opportunity to participate in vocational, educational or work activities. As a result, most inmates must spend substantially all of their time crowded in dormitories in absolute idleness. Such unbroken inactivity increases boredom, tension and frustration, which in turn promote incidents of violence. The evidence reflects that idleness of this magnitude destroys any job skills and work habits inmates may have, and contributes to their mental and physical degeneration.
An examination of the very few rehabilitative programs which do exist reveals that they are totally inadequate to provide reasonable opportunities for rehabilitation or 0907 even to prevent physical and mental deterioration of 0907 most of the inmate population. It was stipulated that the average reading level of prisoners entering the penal system in the first quarter of the year 1975 was below the sixth grade level. Yet basic education classes are available to only a small number of inmates. For example, Holman Prison, with more than 750 inmates, offers Adult Basic Education for only 40 inmates at any one time. At Kilby, an inmate conducts that institution's only basic education class.

While the Board of Corrections has made some recent efforts to increase vocational training and work opportunities, those programs are available to only a limited number of selected inmates. Eligibility requirements for most programs are quite restrictive.[9]
In light of the stipulation that 59 percent of Alabama's state prisoners are unskilled 0907and that another 5.5 percent claim no occupation0907it is clear that access to existing programs for these prisoners who need vocational training is minimal. For those few inmates who qualify, the range of occupations and trades offered is extremely limited.
The Board offers an acceptable rehabilitation opportunity to a limited number of inmates through one pre-release center and eight work-release centers. In addition to providing job skills, the programs allow prisoners to gradually re-enter the community and to save some money, up to 75 percent of their salaries, prior to release. Again, there are stringent eligibility requirements for the few openings in these programs.
The single exception to the dearth of rehabilitation programs is the Frank Lee Youth Center. However, that institution houses approximately 200 selected inmates who meet strict objective and subjective criteria.[10] Most inmates at Frank Lee can expect to participate in a number of educational, vocational and recreational activities. To date the inmate population at Frank Lee has been over 50 percent white in contrast to the predominantly black populations at other state penal institutions.
Institutional work assignments offer little to motivate inmates. There are too few jobs and most take only a few 327 hours to perform. Frequently many more inmates are assigned to a particular job *327 than are required to
accomplish it. Prisoners work for no pay and at jobs which do not teach usable skills. Inmates at Fountain and Holman, most of whom intend to return to metropolitan areas upon release, are routinely assigned to farm labor. Fountain operates a license tag plant, and Draper has a mattress factory. Neither of these programs is available to any significant number of inmates. Other inmates who have an assigned task perform housekeeping functions for the institution. As observed, the lack of meaningful work opportunities contributes to idleness, boredom, apathy and frustration.
The flow of money through Alabama prisons is for all practical purposes uncontrolled. Each prisoner receives 25 cents per week from the state, as well as postage and paper for one letter each week. There are almost no legitimate means for an inmate to earn money. Some prisoners receive substantial sums from outside sources and through contraband activities. Money is required to buy personal hygiene items, food to supplement the prison diet, and postage. Money can also buy drugs, alcohol, changes in institutional records, special privileges, sex, and housekeeping favors. Interest collected on loans made by inmates with money is exorbitant, and may be collected in a ruthless manner. Gambling, smuggling, and extortion are several of the abuses fueled by the failure of prison officials to control the possession of currency inside the institution. Finally, many prisoners must make the difficult transition from prison life on the pittance the state provides them upon release.[11]
There is no organized recreation program for Alabama's prisons. While some athletic facilities and equipment are available, they are not properly maintained. Almost no provision is made for inmates to participate in hobbies. Consequently, inmates have little to occupy the inordinate amount of free time they must fill.
The chances of successful rehabilitation or the chances of escaping mental and physical degeneration are also diminished by the fact that prison environment is much different from that in the society to which an inmate must return. Current visitation policies discourage visits0907which are essential to the maintenance of community ties0907and therefore decrease an inmate's chances of successful reintegration upon release. Some institutions allow visitors only on alternate Sundays, while inmates in quarantine at Kilby are permitted no visitors. Visiting areas are overcrowded and uncomfortable, allow no privacy, and prohibit physical contact in some instances. Public transportation to institutions located in remote areas of the state is infrequent and too expensive for many people to use regularly.
An oral order enjoining the use of isolation and segregation cells which do not meet minimum standards was issued by the Court at the conclusion of the trial in these cases. The indescribable conditions in the isolation cells required immediate action to protect inmates from any further torture by confinement in those cells. As many as six inmates were packed in four foot by eight foot cells with no beds, no lights, no running water, and a hole in the

floor for a toilet which could only be flushed from the outside. The infamous Draper "doghouse" is a separate building, locked from the outside, with no guard stationed inside. Inmates in punitive isolation received only one meal per day, frequently without utensils. They were permitted no exercise or reading material and could shower 328 only every 11 days. Punitive isolation has been used to punish inmates for offenses ranging from *328 swearing at guards and failing to report to work on time, to murder.
In light of the foregoing facts, this Court has a clear duty to require the defendants in these cases to remedy the massive constitutional infirmities which plague Alabama's prisons. It is with great reluctance that federal courts intervene in the day-to-day operation of state penal systems, Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Novak v. Beto, 453 F.2d 661, 671 (5th Cir. 1971); Diamond v. Thompson, 364 F.Supp. 659, 662 (M.D.Ala.1973), a function they are increasingly required to perform.[12] While this Court continues to recognize the broad discretion required for prison officials to maintain orderly and secure institutions, Procunier v. Martinez, 416 U.S. at 404-05, 94 S.Ct. 1800; Diamond v. Thompson, 364 F.Supp. 659 (M.D.Ala.1973); 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), constitutional deprivations of the magnitude presented here simply cannot be countenanced, and this Court is under a duty to, and will, intervene to protect incarcerated citizens from such wholesale infringements of their constitutional rights. See Procunier v. Martinez, 416 U.S. at 405-06, 94 S.Ct. 1800; Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).
Federal litigation by prisoners alleging systemic constitutional deficiencies has mushroomed in recent years. There has been growing recognition by the courts that prisoners retain all rights enjoyed by free citizens except those necessarily lost as an incident of confinement. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1973); Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968); Washington v. Lee, 263 F.Supp. 327, 331 (M.D.Ala.1966), aff'd per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); cf. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974). The Supreme Court recently identified three legitimate functions of a correctional system: deterrence, both specific and general; rehabilitation; and institutional security. Pell v. Procunier, 417 U.S. at 822-23, 94 S.Ct. 2800. "It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners." Id. at 823, 94 S.Ct. at 2804. Therefore, when a prison policy advances one of these valid goals, the Court is required to weigh the competing interests of the prisoner and of the state in pursuing that goal. When an inmate is restricted in a manner which supports no such valid purpose, that restriction cannot stand.
Prisoners are entitled to be free of conditions which constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The content of the Eighth Amendment is not static but "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 329 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d *329 630 (1958). There can be no question that the present conditions of confinement in the Alabama penal system violate any current judicial definition of cruel and unusual punishment, a situation evidenced by the defendants' admission that serious Eighth Amendment violations exist. [13] In these circumstances, it is the very confinement itself which impermissibly contravenes the Eighth and Fourteenth Amendment rights of the plaintiff classes.
[C]onfinement itself within a given institution may amount to a cruel and unusual punishment prohibited by the Constitution where the confinement is characterized by conditions and practices so bad as to be shocking to the conscience of reasonably civilized people even though a particular inmate may never personally be subject to any disciplinary action.
Holt v. Sarver, 309 F.Supp. 362, 372-73 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1971).
The conditions in which Alabama prisoners must live, as established by the evidence in these cases, bear no reasonable relationship to legitimate institutional goals. As a whole they create an atmosphere in which inmates are compelled to live in constant fear of violence, in imminent danger to their physical well-being, and without opportunity to seek a more promising future.

The living conditions in Alabama prisons constitute cruel and unusual punishment. Specifically, lack of sanitation throughout the institutions0907in living areas, infirmaries, and food service 0907presents an imminent danger to the health of each and every inmate. Prisoners suffer from further physical deterioration because there are no opportunities for exercise and recreation. Treatment for prisoners with physical or emotional problems is totally inadequate. This Court has previously ordered that the penal system provide reasonable medical care for inmates in these institutions on a finding that
[f]ailure of the Board of Corrections to provide sufficient medical facilities and staff to afford inmates basic elements of adequate medical care constitutes a willful and intentional violation of the rights of prisoners guaranteed under the Eighth and Fourteenth Amendments.
Newman v. Alabama, 349 F.Supp. at 285-86. The evidence in these cases leads to the inescapable conclusion that the gross inadequacies in medical care found in that case have not been remedied.
Prison officials are under a duty to provide inmates reasonable protection from constant threat of violence.
While occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, Penn v. Oliver, 351 F.Supp. 1292 (E.D. Va.1972), confinement in a prison where violence and terror reign is actionable. A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.
Woodhous v. Commonwealth of Virginia, 487 F.2d 889, 890 (4th Cir. 1973); see Finney v. Arkansas Board of Corrections, 505 F.2d 194, 201 (8th Cir. 1974); Gates v. Collier, 501 F.2d 1291, 1308-09 (5th Cir. 1974); Holt v. Sarver, 309 F.Supp. 362, 376-78, 381 (E.D.Ark. 1970), aff'd 442 F.2d 304 (8th Cir. 1971).
The defendants in these cases have failed to carry out that duty. The evidence establishes that inmates are housed in virtually unguarded, overcrowded dormitories, with no realistic attempt by officials to separate violent, 330 aggressive inmates from those who are passive or weak. The tension generated *330 by idleness and deplorable living conditions contributes further to the ever-present threat of violence from which inmates have no refuge.
The evidence in these cases also establishes that prison conditions are so debilitating that they necessarily deprive inmates of any opportunity to rehabilitate themselves, or even to maintain skills already possessed. While courts have thus far declined to elevate a positive rehabilitation program to the level of a constitutional right, it is clear that a penal system cannot be operated in such a manner that it impedes an inmate's ability to attempt rehabilitation, or simply to avoid physical, mental or social deterioration.
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.
Holt v. Sarver, 309 F.Supp. at 379.
Not only is it cruel and unusual punishment to confine a person in an institution under circumstances which increase the likelihood of future confinement, but these same conditions defeat the goal of rehabilitation which prison officials have set for their institutions. See James v. Wallace, 382 F.Supp. 1177, 1180 n.4 (M.D.Ala.1974).
Prisoners are protected by the Due Process and Equal Protection clauses of the Fourteenth Amendment, Washington v. Lee, supra; therefore, they must be free from arbitrary and capricious treatment by prison officials. Sostre v. McGinnis, 442 F.2d 178, 198-99 (2d Cir. 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1971); Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968). There is evidence in these cases that the Alabama penal system makes available a very limited number of vocational, educational, and work opportunities. Openings in whatever programs are offered must be assigned on a reasonable and rational basis. See Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973). Currently, inmates are able to buy and sell desirable jobs. Moreover, while the prison system is entitled to make rational distinctions in making assignments, it is impossible to do so without a functioning classification system.

The inmates' ability to engage in rehabilitation is further frustrated by unreasonable restrictions on visitation from family and friends. Any restrictions imposed by the prisons' visitation policies must be reasonably related to a legitimate governmental interest. See Thompson v. Gallagher, supra. The visitation policies currently employed by Alabama penal institutions do not serve the valid penal objectives defined by the Supreme Court in Pell v. Procunier, 417 U.S. at 822-23, 94 S.Ct. 2800.

The response of the defendants to the matters set forth in this opinion consistently has been that they cannot alleviate the conditions because of inadequate funding by the state legislature. However, a state is not at liberty to afford its citizens only those constitutional rights which fit comfortably within its budget. The Alabama Legislature has had ample opportunity to make provision for the state to meet its constitutional responsibilities in this area, and it has failed to do so. It is established 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

331

countenanced by the Constitution of the United States. *331 Holt v. Sarver, 309 F.Supp. at 385.

See Finney v. Arkansas Board of Corrections, 505 F.2d 194, 201 (8th Cir. 1974); Gates v. Collier,

501 F.2d 1291, 1319-20 (5th Cir. 1974).

In Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the Supreme Court held that, under Section 1983, plaintiffs can recover money damages from state officials if the officials acted either in bad faith or in "disregard of settled, indisputable law." Id. at 321, 95 S.Ct. 992. To put it another way: a public official may be held liable where he, in subjective good faith, acts in disregard of a person's "clearly established constitutional rights." Id. at 322, 95 S.Ct. 992. The Court now acts in these cases with a recognition that prisoners are not to be coddled, and prisons are not to be operated as hotels or country clubs. However, this does not mean that responsible state officials, including the Alabama Legislature, can be allowed to operate prison facilities that are barbaric and inhumane. Let the defendant state officials now be placed on notice that failure to comply with the minimum standards set forth in the order of this Court filed with this opinion will necessitate the closing of those several prison facilities herein found to be unfit for human confinement.

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 memorandum opinion made and entered in this cause this date, it is the order, judgment and decree of this Court that:
1. Defendants, George C. Wallace, individually and in his official capacity as Governor of Alabama; The State of Alabama; The Alabama Board of Corrections; Judson C. Locke, Jr., individually and in his official capacity as Commissioner of the Alabama Board of Corrections; L. B. Sullivan, individually and in his capacity as Deputy Commissioner of the Alabama Board of Corrections; Bill Long, individually and in his official capacity as Warden of Kilby Corrections Facility; J. O. Davis, individually and as Warden of G. K. Fountain Correctional Center; M. B. Harding, individually; H. Crouch, individually; Yetta G. Samford, Jr., individually; Dr. Max V. McLaughlin, individually; and Reverend John E. Vickers, Dr. Thomas F. Staton, Dr. Marion L. Carroll, Jr., and Mr. Thomas E. Bradford, Sr., individually and as members of the Board of Corrections of the State of Alabama, their agents, employees, successors in office and any others acting in concert with them, be and each is hereby enjoined from failing to implement fully and within the times prescribed each of the requirements set forth in Appendix A to this decree.
2. A Human Rights Committee for the Alabama Prison System be and is hereby designated and appointed. The members of that Committee are listed in Appendix B attached hereto and incorporated herein. The members of

the Committee shall be paid on a per diem basis and shall be reimbursed for travel and other expenses necessarily incurred at the same rate and in the same manner as members of the Alabama Board of Corrections. The function of the Human Rights Committee, acting as a Committee as a whole or through standing subcommittees appointed by the Committee chairman, shall be to monitor implementation of the standards set forth in Appendix A to this decree. In view of this Court's finding that the standards established in Newman v. Alabama, 349 F.Supp. 278, aff'd in part 503 F.2d 1320 (5th Cir. 1974), cert. denied 421 U.S. 928, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), have not been implemented, the Human Rights Committee shall also have the authority and duty to monitor implementation of the requirements of that order. The Committee may at reasonable times inspect the state prison facilities, interview inmates, and inspect institutional records. The Committee shall review plans for 332 implementation of this decree to ensure that they comport with the minimum standards set forth. At its *332 discretion, the Committee may engage and consult appropriate, independent specialists who shall be compensated by the Board of Corrections. The Committee shall be authorized to take any action reasonably necessary to accomplish its function. The Committee is also hereby authorized and empowered to employ upon a full time basis a staff consultant, trained and experienced in the operation of state prison systems, answerable only to the Human Rights Committee; said full time consultant shall be paid upon a basis and at a rate commensurate with the remuneration being received by the Commissioner of the Alabama Board of Corrections. The Committee is further authorized and empowered to employ [to be paid by the defendant Board] one full time clerk-stenographer, responsible only to the Committee. Adequate physical facilities and equipment and supplies will be made available to the consultant and to the clerk by the Alabama Board of Corrections.
3. The defendants, within six months from this date, shall submit to this Court a comprehensive report setting forth their progress in the implementation of each and every standard. The report shall set forth reasons for the incomplete implementation of any standard. The report shall also include a time-table for full compliance.
4. The court costs incurred in these proceedings be and are hereby taxed against the defendants. The defendants are ordered to pay to the Clerk of this Court within 30 days the court costs, as set forth on the costs bills of plaintiffs' attorneys.
5. Jurisdiction of these cases be and is hereby specifically retained.
APPENDIX A
MINIMUM CONSTITUTIONAL STANDARDS FOR INMATES OF ALABAMA PENAL SYSTEM
I. Overcrowding
1. The number of inmates in each institution in the Alabama penal system shall not exceed the design capacity for that institution. No new prisoners, except escapees and parole violators who have had their paroles revoked, may be accepted until the inmate population is no greater than the design capacity for each facility.
II. Segregation and Isolation
1. No more than one prisoner shall be confined in a single cell, and each such cell shall be a minimum of 40 square feet. Within six months, the area of each single occupancy isolation cell shall be no less than 60 square feet.
2. Each cell shall be equipped with a toilet which can be flushed from the inside, a sink with hot and cold running water, ventilation and lighting which meet minimum standards of the United States Public Health Service, clean linen, and a bed off the floor.
3. Each inmate confined in isolation shall be

(a) permitted to bathe at least every other day;
(b) provided three wholesome and nutritious meals per day, served with eating and drinking utensils;
(c) supplied the same toilet articles and linens as are required to be provided to the general inmate population;
(d) provided reading and writing materials, and allowed any personal legal papers or research materials;
(e) allowed at least 30 minutes outdoor exercise per day; and
(f) afforded adequate medical and mental health care, including examination by a physician and a qualified mental health care professional at least every third day. No inmate shall be deprived of physical aids or prosthetic devices.
4. Confinement in isolation shall be imposed as punishment only after compliance with the requirements of due process as set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Any period of 333 confinement *333 for the purpose of punishment shall not exceed 21 days.
5. Any prisoner who is voluntarily segregated must be released immediately upon request.
6. The confinement of any prisoner in administrative segregation must be reviewed at least every seven days, and the prisoner must be released from segregation unless such review determines that there is good cause for continued segregation.
III. Classification
1. By April 15, 1976, the defendants shall file with the Court a plan for the classification of all inmates incarcerated in the Alabama penal system. The Board of Corrections shall contract with the University of Alabama Department of Correctional Psychology to aid in the implementation of that plan. The classification shall be fully completed no later than August 16, 1976.
2. The plan to be submitted to the Court shall include:
(a) due consideration to the age; offense; prior criminal record; vocational, educational and work needs; and physical and mental health care requirements of each inmate;
(b) methods of identifying aged, infirm, and psychologically disturbed or mentally retarded inmates who require transfer to a more appropriate facility, or who require special treatment within the institution; and
(c) methods of identifying those inmates for whom transfer to a pre-release, work-release, or other community-based facility would be appropriate.
3. The classification of each inmate shall be reviewed at least annually.
IV. Mental Health Care
1. The defendants shall identify those inmates who, by reason of psychological disturbance or mental retardation, require care in facilities designed for such persons, and arrangements shall be made for the transfer of such inmates.
2. The defendants shall identify those inmates who require mental health care within the institution and make arrangements for the provision of such care.

3. The defendants shall hire at least those mental health professionals and support personnel as set forth in Minimum Mental Health Standards for the Alabama Correctional System. (Center for Correctional Psychology, University of Alabama, December 1972).
V. Protection from Violence
1. The defendants shall make reasonable efforts, including classification and monitoring, to segregate inmates known to engage in violence and aggression.
2. Only minimum custody inmates may be assigned to dormitories.
3. The defendants shall establish regular procedures, including frequent shakedowns and frisks of inmates returning to the institutions, to reduce the number of weapons held by inmates.
4. Defendants shall enforce prison regulations designed to reduce violence, including rules against fighting, possession of weapons, gambling, or possession of currency within the institutions. Inmates, except those in prerelease and work-release type programs, shall not possess currency. Defendants shall institute a scrip system for approved intra-institutional purchases by inmates.
5. With the exception of isolation units, guards shall be stationed inside living areas, including dormitories, at all times. There shall be at least one guard inside, and one guard outside, all living areas at all times. As to isolation units, guards must be stationed at all times so as to have visual and voice contact with the isolated prisoners.
6. At no time shall prisoners be used to guard other prisoners, nor shall prisoners be placed in positions of authority over other inmates.
7. The defendants shall keep accurate records of incidents of violence which come to their attention, and all 334 assaults *334 and other offenses punishable under the laws of Alabama shall be reported forth-with to the local
district attorney. Accurate records shall be kept reflecting the disposition of such incidents by prison authorities and any resultant criminal prosecutions undertaken.
VI. Living Conditions
1. Prisoners shall be supplied, without charge, toothbrushes, toothpaste, shaving cream, razors and razor blades, soap, shampoo, and combs. Each prisoner also shall be provided adequate clean clothing and a storage locker with a lock.
2. Each prisoner shall be supplied weekly with clean bed linen and towels.
3. Each inmate shall have access to household cleaning supplies in order to maintain living areas, and sanitary conditions within the institutions shall meet minimum public health standards. The defendants shall be responsible for implementing a regular and effective program of insect and rodent control.
4. All institutions shall be adequately heated, lighted and ventilated. Windows and doors shall be properly screened and otherwise properly maintained. Electrical wiring must be safe.
5. Each prisoner shall have a bed off the floor, a clean mattress, and blankets as needed.
6. Each institution shall maintain in working order one toilet per 15 inmates, one urinal or one foot of urinal trough per 15 inmates, one shower per 20 inmates, and one lavatory per 10 inmates.
7. Each inmate shall have a minimum of 60 square feet of living space.

VII. Food Service
1. Every prisoner is entitled to three wholesome and nutritious meals per day, served with proper eating and drinking utensils.
2. The food served to inmates shall be nutritionally adequate and properly prepared under the direction of a food service supervisor for each institution; each supervisor shall have at least bachelor's level training in dietetics or its equivalent. The defendants shall employ a nutrition consultant for the Board of Corrections, who shall be a registered dietitian, to assist in menu planning, methods of food preparation, purchasing standards, and sanitation.
3. Food shall be stored, prepared and served under sanitary conditions which meet minimum public health standards. Equipment shall be maintained in good working condition. All kitchen employees shall be trained in the handling of food and those who assist in the preparation of food shall receive training in food preparation. Regulations relating to food service will be rigorously enforced.
4. Each inmate who requires a special diet for reasons of health or religion shall be provided a diet to meet his or her individual need.
VIII. Correspondence and Visitation
1. Defendants shall not limit the number or length of letters a prisoner may send or receive. Mail to or from courts, attorneys or other public officials shall be inspected only for contraband, and only in the presence of the prisoner to whom it is addressed or by whom it is mailed. Inspection or censorship of other mail must be in accordance with the standards set forth in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1973). The defendants shall supply postage and paper for up to five letters per week for each inmate.
2. Each institution shall provide a comfortable, sheltered area for visitation. The visiting area must not, except for security purposes that have been documented, physically separate visitors from inmates. Visitation policies must permit an inmate to receive visitors on at least a weekly basis, and rules governing visitation must allow reasonable time and space for each visit. Visitors shall not be subjected to any unreasonable searches. Inmates undergoing initial classification shall not be denied visitation privileges.
335 *335 IX. Educational, Vocational, Work and Recreational Opportunities
1. Each inmate shall be assigned a meaningful job on the basis of the inmate's abilities and interests, and according to institutional needs. Inmates shall not be required or allowed to perform household or personal tasks for any person.
2. Each inmate shall have the opportunity to participate in basic educational programs.
3. Each inmate shall have the opportunity to participate in a vocational training program designed to teach a marketable skill.
4. The defendants may establish reasonable entrance requirements and rational objective criteria for selecting inmates to participate in particular programs. However, no inmate shall be denied educational, vocational and work opportunities except while in isolation for disciplinary reasons or when the participation of an inmate in a particular program presents a clear threat to institutional security.
5. Every inmate, prior to release, shall be afforded the opportunity to participate in some transitional program designed to aid in his or her re-entry into society.
6. Each institution shall employ a qualified full-time recreation director with at least bachelor's level training, or its equivalent, in recreation or physical education. Adequate equipment and facilities shall be provided to offer

recreational opportunities to every inmate. Space shall be available for inmates to engage in hobbies. Suitable vocational programs shall be provided.
X. Physical Facilities
1. Defendants shall ensure that the physical plant of each facility in the Alabama penal system meets all of the minimum standards of the United States Public Health Service.
(a) Physical facilities in Draper Correctional Center shall meet minimum standards by December 15, 1976. A report setting forth progress in the implementation of this requirement shall be filed 60 days before that date.
(b) Physical facilities in G. K. Fountain Correctional Center shall meet minimum standards by December 15, 1976. A report setting forth progress in the implementation of this requirement shall be filed 60 days before that date.
(c) Physical facilities in Holman Unit Prison shall meet minimum standards by December 15, 1977. A report setting forth progress in the implementation of this requirement shall be filed six months before that date.
(d) Physical facilities in Kilby Corrections Facility shall meet minimum standards by December 15, 1977. A report setting forth progress in the implementation of this requirement shall be filed six months before that date.
2. The defendants shall establish work-release, pre-release, and other community-based facilities to house inmates identified as appropriate for participation in such programs.
XI. Staff
1. Qualified staff sufficient to maintain institutional order and to administer programs shall be employed by the defendants, including a total custodial staff at each institution of no less than

Draper

184

Kilby

171

Fountain

178

Holman

159

2. Defendants shall provide appropriate and effective training programs for all staff members employed within the Alabama penal system.

3. Defendants shall immediately institute an affirmative hiring program designed to reduce and having the effect of reducing the racial and cultural disparity between the staff and the inmate population.

336 *336

APPENDIX B

MEMBERSHIP OF THE HUMAN RIGHTS COMMITTEE FOR THE ALABAMA PRISON SYSTEM

1. Mr. M. R. Nachman, Jr.0907Chairman0907P.O. Box 668 Montgomery, Alabama 36101

2. Mr. Oscar W. Adams, Jr.

2121 Building Birmingham, Alabama 35203

3. Dr. Mary Catherine Beasley 4. Dr. Wiley R. Boyles 5. Dr. Fred Campbell 6. Dr. John Murphy Chenault 7. Dr. Nace R. Cohen 8. Mr. Lee P. Dodd 9. Mr. William Fasin 10. Gen. E. M. Friend, Jr. 11. Mrs. Emily B. Gassenheimer 12. Dr. Lewis Jones 13. Dr. Moses W. Jones 14. Dr. J. J. Kirschenfeld 15. Mr. Atley A. Kitchings, Jr. 16. Mr. John L. LeFlore 17. Mr. James L. Lovvorn 18. Mr. John C. McCluney 19. Mr. H. D. McInish 20. Mrs. Laurie W. Mandell

14 Park Wood Tuscaloosa, Alabama 35401
3243 Fernway Drive Montgomery, Alabama 36111
1722 Pine Street Montgomery, Alabama 36106
1115 Somerville Road Decatur, Alabama 35610
750 Washington Avenue Montgomery, Alabama 36104
Double Springs, Alabama 35553
1563 Oakland Street Montgomery, Alabama 36108
2030 1st Avenue, North Birmingham, Alabama 35203
312 Scott Street Montgomery, Alabama 36104
310 Bulls Street Tuskegee, Alabama 36083
244 Monroe Street Montgomery, Alabama 36104
2119 E. South Boulevard Montgomery, Alabama 36111
600 19th Street, North Birmingham, Alabama 35203
1504 Chataque Avenue Mobile, Alabama 36603
443 Wright's Mill Road Auburn, Alabama 36830
3617 Southview Avenue Montgomery, Alabama 36111
P.O. Box 1665 Dothan, Alabama 36301
Route 4, Box 168 Montgomery, Alabama 36111

21. Col. Floyd T. Mann 22. Dr. Julius Michaelson
337 *337 23. Dr. Alberta Murphy 24. Mr. James Murry 25. Mrs. Fannie Allen Neal 26. Mrs. Otis Owens 27. Dr. Julius Pryor, Jr. 28. Dr. Janet Robbins 29. Dr. Paul I. Robinson 30. Mr. Solomon S. Seay, Jr. 31. Mrs. Edward M. Selfe 32. Mrs. Mary Jo Smiley 33. Mrs. Betty Stokes 34. Mr. Thomas W. Thagard, Jr. 35. Ms. Sue Thompson 36. Mr. Barney Weeks 37. Rev. Dan C. Whitsett 38. Mrs. Roscoe A. Williams

P.O. Box 295 Lanett, Alabama 36863
P.O. Box 910 Foley, Alabama 36535
13 Hillcrest Drive Tuscaloosa, Alabama 35401
101-A Chambless Building Tuskegee Institute, Alabama 36088
2662 Rutland Street Montgomery, Alabama 36108
33 Parkside Tuscaloosa, Alabama 35401
1156 Oak Street Montgomery, Alabama 36104
Route 2, Box 204-A Ramer, Alabama 36069
3303 Royal Carriage Drive Montgomery, Alabama 36111
352 Dexter Avenue Montgomery, Alabama 36104
3542 Lennox Road, South Birmingham, Alabama 35213
4601 Lawnwood Drive Montgomery, Alabama 36108
801 Montgomery Road Tuskegee Institute, Alabama 36088
600 Bell Building Montgomery, Alabama 36104
2618 Eighth Street Tuscaloosa, Alabama 35401
231 West Valley Avenue Birmingham, Alabama 35209
2122 Mona Lisa Drive Montgomery, Alabama 36111
621 Alabama Street

39. Rev. Robert W. Wingard

Montgomery, Alabama 36104
3151 Woodfern Drive Montgomery, Alabama 36111

[1] These class actions were consolidated on June 27, 1975, and tried together. Following trial of these cases, the pleadings in Pugh were amended to conform to the evidence, and the relief requested is now essentially identical to that requested in James. Consequently, this order will be entered in both cases. See Fed. R.Civ.P. 15 (b).
[2] The original defendant, Commissioner L. B. Sullivan, left office during the pendency of these actions. His successor, Judson C. Locke, Jr., replaces Sullivan as a defendant. See Fed.R.Civ.P. 25(d).
[3] Kilby Corrections Facility was formerly Mt. Meigs Medical and Diagnostic Center. The name of the institution was changed by Act of the Alabama Legislature during the pendency of these actions.
[4] Ala.Code tit. 45, §§ 3, 10(1) (1958).
[5] To be eligible for assignment to Frank Lee Youth Center an inmate must be no more than 23 years old, must have a sentence of less than 10 years, must not have been convicted of a crime involving violence, and must have no history of drug abuse.
[6] Order of August 29, 1975.
[7] Kilby is the receiving center for inmates being processed in and out of state prisons. New inmates are kept in quarantine for approximately six weeks. Kilby also maintains a permanent population of approximately 150.
[8] 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).
[9] For example, for entry into many programs an inmate must have no disciplinary violations for six months prior to enrollment, must have no holdovers, must have a regular duty assignment, must not be considered a security risk, and must be within 18 months of his or her release date upon completion of the course.
[10] See note 5 supra. The Director of the Frank Lee Youth Center, William Gilmore, testified that he relied on his own subjective evaluation, as well as the criteria outlined in note 5, in selecting inmates.
[11] The state is required by statute to provide an inmate, upon release, with "a decent suit of clothes and with the least expensive mode of public transportation back to the point of sentencing . . .." Ala.Code tit. 45 § 54 (Supp.1973). The state also provides ten dollars in cash to all inmates serving five years or less, and an additional two dollars per year for each additional year served. Ala.Code tit. 45 § 55 (1958).
[12] Federal courts in a number of states including Massachusetts, Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass. 1973), aff'd 494 F.2d 1196 (1st Cir. 1974); Maryland, Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972); Arkansas, Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir. 1971); and Mississippi, Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff'd 501 F.2d 1291 (5th Cir. 1974), recently have had occasion to hold conditions in penal institutions in those states unconstitutional. In Alabama, this Court in previous cases has addressed the issues of inadequate medical care, 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); and disciplinary procedures, Diamond v. Thompson, 364 F.Supp. 659 (M.D.Ala.1973), in the state's prisons. Federal courts in other districts of this state have found unconstitutional conditions in both state, McCray v. Sullivan, 399 F.Supp. 271 (S.D.Ala.1975), and local, Thrasher v. Bailey, CA 73P 816-S (N.D.Ala. Aug. 29, 1973), penal facilities.
[13] Defendants through their lead counsel, the Honorable Robert S. Lamar, Jr., admitted in open court, at the close of trial, that plaintiffs had proved serious Eighth Amendment violations.

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 382 F.Supp. 1177 (1974)
Worley JAMES et al., Plaintiffs, v.
George C. WALLACE, Individually and in his official capacity as Governor of Alabama, et al., Defendants.
Civ. A. No. 74-203-N.
United States District Court, M. D. Alabama, N. D.
September 30, 1974.
1178 *1178 George Peach Taylor, University, Ala., for plaintiffs.
William J. Baxley, Atty. Gen., and William M. Bowen, Jr., Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for defendants.
ORDER
JOHNSON, Chief Judge.
This is a class action[1] brought by six named inmates of the Alabama Correctional Institutions System presently incarcerated in the Holman Maximum Security Unit located at Atmore, Alabama. These plaintiffs sue on their own behalf and on behalf of all inmates[2] presently incarcerated in units of the Alabama Correctional Institutions System[3] as a result of felony convictions.
1179 *1179 The defendants are the Governor of the State of Alabama; the Warden of the Medical and Diagnostic Center at Mount Meigs, Alabama; the Commissioner of Corrections; and the members of the Board of Corrections of Alabama. Each is sued individually and in his official capacity.
Plaintiffs seek declaratory and injunctive relief to redress alleged deprivations of the rights, privileges, and immunities guaranteed to them and to members of the class they represent by the Eighth and Fourteenth Amendments to the Constitution of the United States. Specifically, they contend that their continued confinement in the state's correctional institutions under the conditions set forth in the amended complaint, and without being afforded the opportunity for treatment, reformation or rehabilitation, violates the Eighth and Fourteenth Amendments. Plaintiffs assert claims arising under 42 U.S.C. § 1983 and invoke the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1343, 2201, and 2202.
The case is now submitted upon defendants' motion to dismiss the amended complaint, plaintiffs' opposition thereto, briefs of the parties, and oral argument on the motion.
The motion to dismiss the claims against the defendant George C. Wallace is not well taken. While it is correct that the governor has a qualified immunity from damage suits arising under 42 U.S.C. § 1983 for acts undertaken within the sphere of his executive authority, Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L.Ed.2d 90 (1974); Martone v. McKeithen, 413 F.2d 1373, 1375 (5th Cir. 1969), the governor may not interpose his official capacity as a bar to injunctive and declaratory relief. Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Sims v. Amos, 340 F. Supp. 691, 694 (M.D.Ala. 1972), affirmed, 409 U.S. 942, 93 S.Ct. 290, 34 L. Ed.2d 215 (1972).
Defendants' motion to dismiss for failure to state a claim upon which relief can be granted is likewise unavailing. For purposes of this motion, the Court is guided by the principle that
... a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
The allegations of the amended complaint can be read to assert several different theories which plaintiffs contend warrant the relief requested. First, the amended complaint claims that the state's failure and refusal to provide facilities, programs, and personnel for the treatment and rehabilitation of persons confined in the state's correctional institutions constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Because the Eighth Amendment "must be capable of wider application than the mischief which gave it birth," Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910), and "must draw its meaning from 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), this Court does not feel compelled by the doctrine of stare decisis to reject plaintiffs' claim that they are constitutionally entitled to the opportunity for rehabilitation merely because other courts which have considered the question have answered it negatively. See, e. g., Smith v. 1180 Schneckloth, 414 F.2d 680, 682 (9th Cir. 1969); cf. White v. Sullivan, 368 F.Supp. 292, 295 (S.D.Ala. *1180 1973) ; Wilson v. Kelley, 294 F.Supp. 1005, 1012 (N.D.Ga.1968), affirmed per curiam, 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425 (1969).[4]
Nevertheless, this Court is compelled to reject plaintiffs' claim of absolute entitlement to the provision of rehabilitative services on the ground that persons convicted of felonies do not acquire by virtue of their conviction a constitutional right to services and benefits unavailable as of right to persons never convicted of criminal offenses. So long as treatment, rehabilitation, and reformation services and facilities may not be demanded of the state as of right by her free citizens, this Court is unpersuaded that such services may be demanded by convicted felons.
Plaintiffs' amended complaint, however, advances other theories and allegations which do state cognizable claims and which, if proved, would entitle them to relief:
(1) On the basis of the allegations set forth, plaintiffs would be permitted to introduce evidence tending to show that the defendants, or some of them, have prohibited members of the plaintiff class from, or refused to allow them, the opportunity to rehabilitate themselves by means not inconsistent with the orderly operation of the correctional system. It is now well settled that prisoners do not lose all their constitutional rights when they enter penal institutions, Washington v. Lee, 263 F. Supp. 327, 331 (M.D.Ala.1966), affirmed per curiam, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), and that "they retain all of their constitutional rights except for those which must be impinged upon for security or rehabilitative purposes." Jones v. Wittenberg, 323 F.Supp. 93, 98 (N.D.Ohio 1971), affirmed sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); cf. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974). Consequently, in order for a prisoner to be deprived of the opportunity to undertake rehabilitative measures at his own initiative, the state must provide a rational justification for such deprivation.
(2) Plaintiffs allege that defendants have failed and refused to eliminate those conditions which make impossible the treatment, rehabilitation, and reformation of those persons committed to the Alabama Correctional Institutions System. It has been recognized that the concept of "cruel and unusual punishment" is not limited to instances in which a prisoner is subjected to individual punishment or abuse. Rather,
... confinement itself within a given institution may amount to a cruel and unusual punishment prohibited by the Constitution where the confinement is characterized by conditions and practices so bad as to be shocking to the conscience of reasonably civilized people even though a particular inmate may never personally be subject to any disciplinary action.
Holt v. Sarver, 309 F.Supp. 362, 372-373 (E.D.Ark.1970), affirmed, 442 F.2d 304 (8th Cir. 1971).
1181 *1181 Where conditions within a prison are such that the inmates incarcerated therein will inevitably and necessarily become more sociopathic and less able to adapt to conventional society as the result of their incarceration than they were prior thereto, cruel and unusual punishment is inflicted. This Court, therefore, adheres to the principle set forth by the Holt court: "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." Holt v. Sarver, 309 F.Supp. at 379.
It should be pointed out that the degree of proof required to sustain plaintiffs' burden of proving that the conditions of Alabama prisons themselves tend to encourage asocial and antisocial behavior will be a heavy one. But where it can be shown that prison conditions are so bad as to constitute cruel and unusual punishment, the relief to be afforded may properly include an order compelling the provision of certain basic rehabilitative services and facilities. See, e. g., Jones v. Wittenberg, 330 F.Supp. 707, 717 (N.D.Ohio 1971), affirmed sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), in which the district court, after finding that the totality of prison conditions amounted to a violation of the Eighth and Fourteenth Amendments, ordered that the following steps, inter alia, be taken: (1) classification and diagnostic procedures for each prisoner at intake; (2) establishment of work or study release programs; (3) establishment of group and individual counselling programs; (4) establishment of basic and remedial education programs; (5) expansion of existing religious programs; (6) establishment of a recreation program; (7) establishment of a constructive work program; and (8) establishment of visitation programs.
(3) Plaintiffs allege that persons entering the Alabama Correctional Institutions System are arbitrarily and discriminatorily assigned to units therein which have no or few educational and vocational programs and no treatment facilities for mental or physical disabilities. Since they claim that such assignment is arbitrary and discriminatory, it must be presumed that they claim that other inmates are assigned to units with educational, vocational or treatment facilities and that the method of assignment lacks rational justification.
It is appropriate to begin once again with the general and well-recognized proposition that "the Due Process and Equal Protection Clauses of the Fourteenth Amendment follow [prisoners] into prison and protect them there from unconstitutional action on the part of prison authorities carried out under color of state law." Washington v. Lee, 263 F.Supp. at 331. Moreover, it is clear that the fact that members of the plaintiff class may not have an absolute constitutional right to rehabilitative services does not dispose of plaintiffs' Fourteenth Amendment claims. As the Fifth Circuit has explained,
The right-privilege distinction has been rejected as a method of analysis in Fourteenth Amendment cases, because the question is not whether a person has a right to something denied by the government, but whether the government acted lawfully in depriving him of it .... The question is whether the challenged [practice] is a rational means of advancing a valid state interest. A regulation not reasonably related to a valid government interest may not stand in the face of a due process attack. Likewise, a classification which serves no rational purpose or which arbitrarily divides citizens into different classes and treats them differently violates the equal protection clause.
Thompson v. Gallagher, 489 F.2d 443, 446, 447 (5th Cir. 1973).
1182 As long then, as the state undertakes to provide rehabilitative services to some prisoners, it must justify *1182 the reasonableness of its denial of similar services to other prisoners.[5]
(4) Plaintiffs allege that members of their class are incarcerated in institutions having inadequate facilities and programs designed to meet the treatment and custodial needs of those with mental or emotional difficulties or with geriatric problems. As this Court pointed out in Newman v. State of Alabama, 349 F.Supp. 278, 284-285, 287 (M.D. Ala.1972), affirmed, 503 F.2d 1320 (5th Cir. 1974), these allegations state a claim of constitutional proportions upon which relief can be granted.
(5) Plaintiffs allege that they are housed with other inmates who have not been adequately screened for emotional and behavioral disabilities under such circumstances that inadequate protection is afforded against physical assaults from these inmates. As the Fifth Circuit has indicated in Gates v. Collier, supra, the totality of the circumstances giving rise to inadequate protection against physical assaults and abuses by other inmates may constitute the infliction of punishment in violation of the Eighth Amendment.
(6) Plaintiffs also claim that defendants have placed unreasonable restrictions on visitation by members of their families and the families of others whom they represent. Since a regulation not reasonably related to a valid

governmental interest contravenes the Due Process Clause of the Fourteenth Amendment, Thompson v. Gallagher, 498 F.2d at 447, this allegation states a claim upon which relief can be granted.
In view of the foregoing, it is the order, judgment and decree of the Court that defendants' motion to dismiss the amended complaint in this action be and the same is hereby denied.
[1] This action was commenced by the filing of a pro se complaint by the plaintiff Worley James. The amended complaint, filed by Mr. James' court-appointed counsel, added five additional plaintiffs and changed the suit into a class action.
[2] Approximately 4,000 in number.
[3] The Alabama Correctional Institutions System operates the Medical and Diagnostic Center, Mount Meigs, Alabama; Atmore Prison Farm, Atmore, Alabama; Holman Maximum Security Unit, Atmore, Alabama; Draper Correctional and Pre-Release Center, Elmore, Alabama; Julia Tutwiler Prison for Women, Wetumpka, Alabama; Cattle Ranch, Greensboro, Alabama; No. 4 Honor Camp, Montgomery, Alabama; and approximately twelve (12) road camps located throughout the state.
[4] Despite the fact that no court has yet held that there is an absolute constitutional right to rehabilitative and reformative services for those confined in penal institutions, it has been widely recognized that rehabilitation is one of the primary purposes and goals of incarceration. See, e. g., Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965); Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Rudolph v. Alabama, 375 U.S. 889, 891, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting); Anderson v. Nosser, 438 F.2d 183, 190 (5th Cir. 1971), modified on rehearing en banc, 456 F.2d 835 (1972), cert. denied, 409 U.S. 848, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972); Benson v. United States, 332 F.2d 288, 292 (5th Cir. 1964); Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) (Blackmun, J.); Diamond v. Thompson, 364 F.Supp. 659, 667 (M.D.Ala. 1973); Brenneman v. Madigan, 343 F.Supp. 128, 142 (N.D.Cal.1972); Law v. State, 238 Ala. 428, 431, 191 So. 803 (1939); Yates v. State, 31 Ala.App. 404, 405, 17 So.2d 594 (1944); see also Ala.Code, Title 45, § 188(1)(4).
[5] Such justification may, but need not, take the form of an evaluation of each inmate's likelihood of benefitting from the rehabilitative services provided by the Alabama Correctional Institutions System and assignment to specific units thereof with reference to such evaluation. The necessity for a system of assigning inmates on the basis of their backgrounds and institutional needs has been recognized. See, e. g., Jones v. Wittenberg, 330 F.Supp. at 717; Morris v. Travisono, 310 F.Supp. 857 (D.R.I.1970); cf. Gates v. Collier, supra.
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 578 F.2d 565 (1978)
N. H. NEWMAN et al., Plaintiffs-Appellees, v.
STATE OF ALABAMA et al., Defendants-Appellants. Jerry Lee PUGH, for himself and others similarly situated, Plaintiffs-
Appellees, v.
Judson C. LOCKE, Jr. and State of Alabama et al., DefendantsAppellants.
Worley JAMES et al., Plaintiffs-Appellees, v.
George C. WALLACE et al., Defendants-Appellants.
No. 76-2269.
United States Court of Appeals, Fifth Circuit.
August 7, 1978.
Before COLEMAN, Circuit Judge, KUNZIG,[*] Judge, and GEE, Circuit Judge.
BY THE COURT:
Upon the mandate of the Supreme Court of the United States dated July 3, 1978, and filed in this Court July 13, 1978, the District Court is ordered to dismiss the State of Alabama and the Alabama Board of Corrections from this action.
[*] Judge of the United States Court of Claims, sitting by designation.

 
 Pugh v. Locke, 568 F.2d 204 (Table) (1978)

M.D.Ala.

568 F.2d 204 (Table)
Pugh v.
Locke*

Opinion DISMISSED***

No. 77-2732 | 1/31/78
(The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Fifth Circuit by rule sets forth criteria for publication, provides for affirmance
without opinion in certain circumstances, and directs that if an unpublished opinion is cited, a copy
shall be attached to each copy of the brief. Fifth Circuit Rules, Rule 47.5, 28 U.S.C.A.)
	  

United States Court of Appeals, Fifth Circuit

Footnotes

*

Summary Calendar case; Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431

F.2d 409.

*** Opinion contains citation(s) or special notations.

	  

1

 
 Alabama v. Pugh, 438 U.S. 781 (1978)

98 S.Ct. 3057 Supreme Court of the United States
State of ALABAMA et al. v.
Jerry Lee PUGH et al.
No. 77–1107. | July 3, 1978.
Action was brought to eradicate alleged cruel and unusual punishment in Alabama prison system. The United States District Court for the Middle District of Alabama, 406 F.Supp. 318, granted injunctive relief. The Court of Appeals for the Fifth Circuit, 559 F.2d 283, affirmed. Petition for certiorari was filed. The Supreme Court held that: (1) suit against the State and its Board of Corrections was barred by Eleventh Amendment, absent the State’s consent to suit, and (2) although there were numerous defendants, question of the State’s Eleventh Amendment immunity was not merely academic since the State had an interest in being dismissed from the action in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction.
Petition granted in part, judgment reversed in part, and case remanded.
Mr. Justice Brennan dissented.
Mr. Justice Marshall dissented.
Mr. Justice Stevens filed dissenting opinion.
West Headnotes (2)
[1] Federal Courts Suits Against States;   Eleventh Amendment
and Sovereign Immunity Federal Courts
Prisons and jails
Suit against State of Alabama and its Board of Corrections to eradicate alleged cruel and unusual punishment in the state prison system was barred by Eleventh Amendment absent the State’s consent to suit. U.S.C.A.Const. Amends. 8, 11, 14; Const.Ala.1901, § 14; 42 U.S.C.A. § 1983.
1678 Cases that cite this headnote

[2] Federal Courts Objections, proceedings, and determination
Although there were numerous defendants, question of Alabama’s Eleventh Amendment immunity was not merely academic in action to eradicate alleged cruel and unusual punishment in the state prison system since the State had an interest in being dismissed from the action in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction. Const.Ala.1901, § 14; U.S.C.A.Const. Amend. 11; 42 U.S.C.A. § 1983.
1431 Cases that cite this headnote
Opinion
*781 **3057 PER CURIAM.
Respondents, inmates or former inmates of the Alabama prison system, sued petitioners, who include the State of Alabama and the Alabama Board of Corrections as well as a number of Alabama officials responsible for the administration of its prisons, alleging that conditions in Alabama prisons constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The United States District Court agreed and issued an order prescribing measures designed to eradicate cruel and unusual punishment in the Alabama prison system. The Court of Appeals for the Fifth Circuit affirmed but modified some aspects of the order which it believed exceeded the limits of the appropriate exercise of the court’s remedial powers. 559 F.2d 283. [1] [2] Among the claims raised here by petitioners is that the issuance of a mandatory injunction against the State of Alabama and the Alabama Board of Corrections is unconstitutional because the Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies. The Court of Appeals did not address this contention, perhaps because it was of the view that in light of *782 the numerous individual defendants in the case dismissal as to these two defendants would not affect the scope of the injunction. There can be no doubt, however, that suit against the State
1

Alabama v. Pugh, 438 U.S. 781 (1978)

and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department **3058 of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, § 14, of the Alabama Constitution, which provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” Moreover, the question of the State’s Eleventh Amendment immunity is not merely academic. Alabama has an interest in being dismissed from this action in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction.1 Consequently, we grant the petition for certiorari limited to Question 2 presented by petitioners,2 reverse the judgment in part, and remand the case to the Court of Appeals with instructions to order the dismissal of the State of Alabama and the Alabama Board of Corrections from this action.

1

Respondents contend that petitioners failed to raise the

Eleventh Amendment issue in the District Court. The

Court held in Edelman v. Jordan, 415 U.S. 651, 678, 94

S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), however, that

“the Eleventh Amendment defense sufficiently partakes

of the nature of a jurisdictional bar so that it need not be

raised in the trial court . . . .”

2

“Whether the mandatory injunction issued against the

State of Alabama and the Alabama Board of

Corrections violates the State’s Eleventh Amendment

immunity or exceeds the jurisdiction granted federal

courts by 42 U.S.C. § 1983.”

So ordered.

Mr. Justice BRENNAN and Mr. Justice MARSHALL dissent.

Mr. Justice STEVENS, dissenting.

This Court is much too busy to spend its time correcting *783 harmless errors. Nothing more is accomplished by the summary action it takes today.*

*

Surely the Court does not intend to resolve summarily

the issue debated by my Brothers in their separate

opinions in Hutto v. Finney, 437 U.S. 678, 700, 98

S.Ct. 2565, 2579, 57 L.Ed.2d 522 (BRENNAN, J.,

concurring), and 708–710 n.6, 98 S.Ct. 2583 n.6

(POWELL, J., concurring in part and dissenting in

part).

The Court does not question the propriety of the injunctive relief entered by the District Court and upheld by the Court of Appeals. Striking the State’s name from the list of parties will have no impact on the effectiveness of that relief. If the state officers disobey the injunction, financial penalties may be imposed on the responsible state agencies. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522. The District Court’s asserted error did not trouble the Court of Appeals because it has no practical significance. It does not justify the exercise of this Court’s certiorari jurisdiction. I respectfully dissent.
Parallel Citations
98 S.Ct. 3057, 57 L.Ed.2d 1114
	  

2