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FAX No. 6623691039

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FILED

212003

IN THE UNITED STATES DISTRICT COURT AR,cNy,IX)YLE,CLERK

FOR THE NORTHERN DISTRICT OP MISSISSIPPI^ J.

-^-^

EASTERN DIVISION

WILLIE RUSSELL, ET AL
/ V.

PLAINTIFFS NO. l:02CV261-JAD

ROBERT L. JOHNSON, ET AL

DEPENDANTS

MEMORANDUM OPINION

This case was filed by plaintiffs complaining of a myriad of problems at Unit 32-C, Mississippi State Penitentiary, which houses the prisoners sentenced to death under Mississippi law. A non-jury trial in this case was held before the undersigned United States Magistrate Judge with consent of the parties pursuant to 28 U.S.C. §636 (c)on February 13-15, 2003, in Oxford, Mississippi. Having considered the evidence submitted at that trial and the arguments of counsel, the court is now prepared to issue its findings of fact and conclusions of law. In those areas where a finding of fact is made, the court has determined that the evidence presented by the party supporting that finding is more persuasive.

I. Background

This suit was filed in July 2002 alleging that inmates housed on Parchman's Death Row were knowingly and deliberately subjected by the defendants to profound isolation, lack of exercise, intolerable stench and filth, malfunctioning plumbing, constant exposure to human excrement, dangerously high temperatures and humidity, uncontrolled mosquitoes and insect infestations, deprivation of basic mental health care, and constant exposure to
Russell v. Johnson

PC-MS-003-001

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severely psychotic inmates in adjoining cells. Plaintiffs also contended that the exposure to these conditions caused death row inmates intense physical and emotional pain and suffering which was likely to cause serious mental illness in previously healthy prisoners and mental breakdown or psychosis in less healthy prisoners, placing the plaintiffs at high risk of premature death while they appealed their sentences.
The defendants have asserted that the complaint in this case should be dismissed for failure of the plaintiffs to comply with the administrative remedy program implemented by the Mississippi Department of Corrections (MDOC) and approved by this court in Gates, et al v. Collier, et al. Civil Action No. 4:71CV6-JAD, the ongoing Mississippi prisoner class action lawsuit. The defendants have also asserted that the plaintiffs have failed to demonstrate an entitlement to class action status.
This case was originally assigned to Chief Judge Glen H. Davidson who referred this matter for inclusion in the ongoing prison case in this district, Gates v. Collier. The Gates case was assigned to the undersigned pursuant to the consent of the parties when former Chief Judge L. T. Sentert Jr., took senior status. After the inclusion of this case in Gates, the parties consented to trial before the undersigned. The undersigned certified a subclass in Gates of the death row inmates housed in Unit 32-C at Parchman. The court finds that this case is properly certified as
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a sub-class in Gates since the conditions of confinement on Death Row are unique to the inmates housed there. However, findings by this court on the conditions at Unit 32-C could impact the entire prison population. The court finds that the class in this case is properly certified pursuant to Rule 23 (b)(2), since it is clear that any appropriate final injunctive or declaratory relief should be with respect to the class as a whole, as the allegations against the defendants are applicable to all inmates on Death Row, and, to some extent, all inmates at Unit 32 and Parchman generally. Inclusion of this sub-class in the general class action case is appropriate and promotes judicial economy and consistent results.
The court further finds that the requirement of exhaustion in litigation that has been ongoing since 1971 is a matter of form over substance. The administrative remedy program cannot afford the plaintiffs the relief necessary to remedy the complaints since any relief would necessarily impact previously entered orders of this court. Requiring exhaustion in this instance is futile since the case was properly included in on-going prison conditions litigation.
II. Findings of Fact During the course of this litigation, the Mississippi State Penitentiary obtained accreditation from the American Correctional Association (ACA) . As this court has stated on numerous occasions, the Mississippi Department of Corrections (MDOC) is to be commended
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for this important step in assuring that inmates are housed in a humane manner. However, ACA accreditation does not moot the issues in this case and does not automatically insure that the conditions of confinement at Unit 32-C meet constitutional standards.
A. Sanitation Turning first to the general sanitation conditions, the court finds that ACA accreditation has resulted in an upgrade of Unit 32C by cleaning and painting. Also, the accreditation resulted in the formation of a general maintenance schedule. It is clear from the evidence, however, that prior to the cleanup for ACA accreditation, inmates on Unit 32-C were subjected to cells that •were extremely filthy with chipped, peeling paint, dried fecal matter and food encrusted on the walls, ceilings, and bars, as well as water from flooded toilets and rain leaks. The court also finds that inmates are routinely moved from cell to cell and are forced to clean their new cells that may have been left in horrendous sanitation by the prior occupants, especially if the occupant were mentally ill. Furthermore, adequate cleaning supplies and equipment are not routinely made available for inmates to clean their cells. Several inmates testified they clean their cells with their shower soap, towels and tee shirts. These filthy conditions contribute to the infestation of pests and play a role in the mental well-being of inmates.
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B. Heatlno and Cooling The next area of general concern is the heating and cooling of the cells. The summer temperatures in the Mississippi Delta average in the nineties with high humidity, and Unit 32, for the most part, is not an air-conditioned facility. By state law, death row inmates must be housed in a maximum security unit, and they are housed together in Unit 32-C as a security measure. There are industrial type fans in the hallways to help with air circulation, and most inmates have smaller fans. Relief from the heat can be obtained by keeping the windows open in the cell using fans. However, keeping the windows open increases the mosquito population in the cells since there are holes in the cell window screens and the screen gauge is not sufficient to keep mosquitoes out. Generally, the ambient temperature in the cells is within reasonable limits except during the summer months. The court finds that the ventilation in Unit 32-C is inadequate to afford prisoners a minimal level of comfort during the summer months. While temperatures obviously run high during the summer months in Mississippi, inmates on lockdown status, such as the inmates on Death Row, must rely on the Mississippi Department of Corrections for minimal relief. The probability of heat-related illness is extreme at Unit 32-C, and is dramatically more so for mentally ill inmates who often do not take appropriate behavioral steps to deal with the heat. Also, the medications commonly given to treat
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various medical problems interfere with the body's ability to maintain a normal temperature. The inmates are not afforded extra showers, ice water, or fans if they don't have fans when the heat index is 90 or above. The court finds that the heat problem extends to all of Unit 32 and possibly throughout Parchman.
C Pest Control The heat problem also exacerbates the problem of pest control. Mosquitoes in Mississippi and the Delta, in particular, are a problem that cannot be eliminated. The court finds, however, that the problem must be addressed and the impact lessened, especially with the incidence of West Nile virus, a mosquito-born disease, increasing in Mississippi. The court finds that inadequate screening on the cell windows causes the inmates to choose between suffering from the heat or increasing the mosquitoes in their cells. The problems of heat and mosquitoes must be addressed to provide the plaintiffs with conditions that would meet minimal constitutional standards. The problem of roaches and other vermin will be met by adhering to the ACA standards and by meeting the sanitation goals the court will set.
D. "Ping-Eon?" Toilets and Plumbing The next area of concern is the plumbing at Unit 32, especially the toilets. The problem is described as "ping-pong toilets" which means that fecal and other matter flushed by a toilet in one cell will bubble up in the adjoining cell unless the
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toilets are flushed simultaneously. This has been a problem in Unit 32 since the unit opened. Parchman officials have identified the problem as one of calibration, especially if the water is shut off. The toilets must be recalibrated in order to work properly. The court finds that recalibration appears to have helped, but does not eliminate, the problem of ping-pong toilets. No one in a civilized society should be forced to live under conditions that force exposure to another person's bodily wastes. No matter how heinous the crime committed, there is no excuse for such living conditions.
As for the showers, water temperature, and quality of water, the court finds these to be adequate. The Unit 32 water temperature in the showers is within standards and individual cells have lavatories. The plaintiffs are afforded three showers a week on Mondays, Wednesdays and Fridays. The quality of water meets the appropriate health standards.
E. Smoke Detection/Fire Alarms and Food Service The court also finds that the replacement of the smoke detection/fire alarm system in Unit 32-C is adequate and moots the concerns of the plaintiffs. The court further finds that the meals provided the inmates are brought from a main kitchen facility to a satellite kitchen and then distributed to the various tiers. While the temperature of some of the hot food items may occasionally have
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dropped below the optimal temperature of 140 degrees, there is no evidence to establish inadequate food handling or preparation.
P. Lighting Another area of concern is the lighting at Unit 32. The court finds that the lighting in the cells is grossly inadequate. The maximum foot-candles1 obtained by the plaintiffs' expert, Mr. Balsamo, was seven or eight foot-candles, with the typical cell being in the 2-4 foot-candle range. The court finds that 20 footcandles is the appropriate level of lighting for these cells. The defendants stated they changed the lighting because the old lighting was used by inmates to hide contraband. While this may be a legitimate security concern, it does not mean that the MDOC can go below minimum standards.
G. Preventive Maintenance Program The preventive maintenance program instituted by the MDOC in response to ACA accreditation appears to be adequate, although the court finds that this program should be in writing.
H. Laundry Deputy Commissioner Sparkman conceded that "there was a problem with some of the laundry" causing the inmates laundry to be returned foul-smelling and necessitating the inmates to wash their
'A foot-candle is defined by Webster's New Collegiate Dictionary as wa unit of illuminance on a surface that iB everywhere one foot from a uniform point source of light of one candle and equal to one lumen per square foot."
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clothes in their cells. Mr. Sparkman testified that inmates wash

their own clothes because of "prison culture." The court finds

that inmates are entitled to laundry that is clean and not foul-

smelling. If they then choose to wash their own laundry, that is

a reasoned choice, not one brought on by necessity.

I. Mental Health Issues

One of the principal areas of concern for the court is the

area of mental health issues for inmates housed on Death Row. At.

least six severely psychotic prisoners are housed on Death Row and

many more are diagnosed with quantifiable mental health problems.

The extremely psychotic prisoners scream at night, throw feces, and

generally make life miserable for the inmates and guards at Unit

32-C.

As Dr. Kupers testified, *it boils down to warehousing

people with severe mental illness. . .some are medicated, but there

is essentially no other mental health services." The court finds

that the mental health care afforded the inmates on Death Row is

grossly inadequate. The isolation of Death Row, along with the

inmates' pending sentences of death and the conditions at Unit 32-

C, are enough to weaken even the strongest individual. What mental

health services are provided generally take place at the inmate's

cell within hearing of other inmates and guards. This results in

the failure of inmates to tell the mental health specialists

anything of substance. Moreover, comprehensive mental health

evaluations are consistently inadequate. Inmates are also

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prescribed psychotropic drugs with only sporadic monitoring. This can result in life threatening situations due to the toxicity of these drugs. If the state is going to exact the ultimate penalty against these inmates, it must meet the mental health needs of each Death Row inmate and not merely warehouse them. Appropriate treatment of mentally ill inmates will in turn help address the issues of excessive noise and sanitation problems caused by severely psychotic inmates.
J. Exercise Finally, the court finds that proper exercise is advantageous for mental and health well-being. The exercise facilities provided are adequate. While the court understands the use of "flip-flops" as general footwear as a security measure, such shoes do not allow effective exercise. The inmates should be given access to sneakers rather than wflip-flops" prior to entering the exercise pen and should be given access to water and shade while exercising. To the extent other issues have been raised by the plaintiffs, the court finds that there is inadequate proof to necessitate any remedial action.
III. Conclusions of Law The plaintiffs in this case have shown that they were incarcerated under conditions posing a substantial risk of harm. Farmer v. Brennan. 511 U.S. 825, 839-840 (1994). It is not necessary for an Eighth Amendment claimant to show that a prison
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official acted or failed to act believing that an inmate would actually be harmed; it is enough that the official acted or failed to act despite knowledge of a substantial risk of serious harm. Id. at 842. The court finds that the conditions identified in the court's Findings of Fact are conditions that the prison officials knew posed substantial risk since the risks are obvious. Id. Correctional officials' treatment of prisoners violates the Eighth Amendment whenever it woffend[s] contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess." Hope v, Pelzer. 536 U.S. 730, 737, N.6 (2002), quoting Gates v. Collier, 501 F.2d 1291, 1306 {5th Cir. 1974). Moreover, it is not necessary that damage has yet to occur if the unsafe conditions "pose an unreasonable risk of serious damage to [a prisoner's] future health. Helling v. McKinney, 509 U.S. 25, 33 (1993) . Under these standards, the conditions identified previously in the court's Findings of Fact constitute cruel and unusual punishment and violate the Eighth Amendment.
Prison officials also violate the Eighth Amendment when they act with deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 997, 105-106 (1976). Mental health needs are no less serious than physical needs. See, Partridge v. Two Unknown Police Officers of City of Houston, Texas. 791 F.2d 1182, 1187 (5th Cir. 1986) . The evidence clearly establishes that defendants have been deliberately indifferent to
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the Death Row inmates' serious mental health needs by the
conditions and practices identified in the court's Findings of
Pact.
Finally, the fact that MDOC has attained ACA accreditation for
the Mississippi State Penitentiary does not moot the claims of
plaintiffs. see, Friends of the Earth. Inc. v. Lordlaw
Environmental Services (TOO, Inc., 528 U.S. 167, 190 (2002).
IV. Remedial Actions
Having found that defendants' have violated plaintiffs' Eighth
Amendment rights in numerous ways, the court directs the following
remedial action:
(1) If defendants wish to continue the practice of moving inmates from cell-to-cell in Unit 32-C, they will insure that the cell to which an inmate is moved is clean prior to the move. While an inmate should be required to keep his own cell clean, he should not be required to clean the cell of another inmate in order to inhabit it.
(2) Adequate cleaning supplies and equipment shall be provided inmates in order that they may clean their cells at least weekly.
(3) A general preventive maintenance schedule and program shall be reduced to writing within 60 days of this order.
(4) Defendants shall take the necessary measurements in the unit in order to determine the heat index on the individual tiers. These measurements shall be taken daily at 10:00 a.m., 1:00 p.m., 4:00 p.m., and 7:00 p.m. during the months of May through September and at 1:00 p.m. in all other months. If the heat index reaches 90 degrees or above, the defendants will insure that each cell is equipped with a fan, that ice water is available to each inmate, and that each inmate may take one shower during each day when the heat index is 90 degrees or above. As an alternative, the defendants may provide fans, ice water, and daily showers during the months of
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May through September. This remedy shall apply to all of Unit 32.
(5) The defendants shall continue their efforts at mosquito eradication and pest control. The defendants shall also insure that all cell windows are repaired and screened with 18 gauge window screen or better. This remedy shall apply to all of Unit 32.
(6) The defendants shall insure that the problem of "pingpong" toilets in Unit 32 as a whole is addressed. The defendants shall provide to the court within 60 days the details of a plan to eradicate this problem. The court is not convinced that recalibration is sufficient, but will await the defendants' report on their plan.
(7) The defendants shall also upgrade the lighting in Unit 32 as a whole to provide lighting in each cell equal to 20 foot-candles.
(8) The defendants shall insure that the proper chemical agents are used at the laundry so that inmates' laundry is returned clean and without a foul smell.
(9) The defendants shall insure that the new vendor for medical services complies with the ACA and the National Commission on Correctional Healthcare medical and mental health standards. Each inmate on Death Row shall be given a comprehensive mental health examination in private. These comprehensive examinations shall be conducted on a yearly basis. Those inmates diagnosed with psychosis and severe mental health illnesses shall be housed separately and apart from all other inmates. The medication levels of all inmates receiving psychotropic medications shall be monitored and assessed in accordance with appropriate medical standards. All inmates receiving mental health counseling or evaluation shall meet with the mental health professionals in a private setting.
(10) The inmates on Unit 32-C shall continue to receive the opportunity to exercise as currently available. However, the inmates shall be given the opportunity to wear sneakers while exercising if they prefer rather than "flip-flops." A shaded area for exercise shall be provided with access to water.
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By July 7, 2 003, the defendants shall report their progress in meeting the remedial actions ordered by the court. The defendants shall also advise the court of any security problems raised by the remedial actions that the court may not have anticipated. The defendants are advised that monetary considerations will not be considered by the court as a legitimate reason for non-compliance. It is the duty of the State of Mississippi to meet these minimal standards of decency, health and well-being. The plaintiffs are granted until July 17, 2003, to respond to any matters raised by the defendants. The plaintiffs are awarded their reasonable attorneys' fees and expenses. The attorneys for plaintiff shall file their request for fees in accordance with the local rules.
This 21st day of May, 2003.
JERRY X. DAVIS UNITED STATES MAGISTRATE JUDGE

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IN THE tnStlTED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OP MISSISSIPPI
EASTERN DIVISION

WILLIE RUSSELL, ET AL

PLAINTIFFS

V.

NO. l:02CV261-JAD

ROBERT L. JOHNSON, ET AL

DEFENDANTS

FINAL JUDGMENT
In accordance with the Memorandum Opinion entered this date,
the court orders and adjudges the following remedial action by the
defendants to correct the Eighth Amendment violations identified in
the court's opinion.
(1) If defendants wish to continue the practice of moving inmates from cell-to-cell in Unit 32-C, they will insure that the cell to which an inmate is moved is clean prior to the move. While an inmate should be required to keep his own cell clean, he should not be required to clean the cell of another inmate in order to inhabit it.
(2) Adequate cleaning supplies and equipment shall be provided inmates in order that they may clean their cells at least weekly.
(3) A general preventive maintenance schedule and program shall be reduced to writing within 60 days of this order.
(4) Defendants shall take the necessary measurements in the unit in order to determine the heat index on the individual tiers. These measurements shall be taken daily at 10:00 a.m., 1:00 p.m., 4:00 p.m., and 7:00p.m. during the months of May through September and at 1:00 p.m. in all other months. If the heat index reaches 90 degrees or above, the defendants will insure that each cell is equipped with a fan, that ice water is available to each inmate, and that each inmate may take one shower during each day when the heat index is 90 degrees or above. As an alternative, the defendants may provide fans, ice water, and daily showers during the months of May through September. This remedy shall apply to all of Unit 32.

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(5) The defendants shall continue their efforts at mosquito eradication and pest control. The defendants shall also insure that all cell windows are repaired and screened with 18 gauge window screen or better. This remedy shall apply to all of Unit 32.
(6) The defendants shall insure that the problem of wpingpong" toilets in Unit 32 as a whole is addressed. The defendants shall provide to the court within 60 days the details of a plan to eradicate this problem. The court is not convinced that recalibration is sufficient, but will await the defendants' report on their plan.
(7) The defendants shall also upgrade the lighting in Unit 32 as a whole to provide lighting in each cell equal to 20 foot-candles.
(8) The defendants shall insure that the proper chemical agents are used at the laundry so that inmates' laundry is returned clean and without a foul smell.
(9) The defendants shall insure that the new vendor for medical services complies with the ACA and the National Commission on Correctional Healthcare medical and mental health standards. Each inmate on Death Row shall be given a comprehensive mental health examination in private. These comprehensive examinations shall be conducted on a yearly basis. Those inmates diagnosed with psychosis and severe mental health illnesses shall be housed separately and apart from all other inmates. The medication levels of all inmates receiving psychotropic medications shall be monitored and assessed in accordance with appropriate medical standards. All inmates receiving mental health counseling or evaluation shall meet with the mental health professionals in a private setting.
(10) The inmates on Unit 32-C ehall continue to receive the opportunity to exercise as currently available. However, the inmates shall be given the opportunity to wear sneakers while exercising if they prefer rather than "flip-flops." A shaded area for exercise shall be provided with access to water.
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By July 7, 2003, the defendants shall report their progress in meeting the remedial actions ordered by the court. The defendants shall also advise the court of any security problems raised by the remedial actions that the court may not have anticipated. The defendants are advised that monetary considerations will not be considered by the court as a legitimate reason for non-compliance. It is the duty of the State of Mississippi to meet these minimal standards of decency, health and well-being. The plaintiffs are granted until July 17, 2003, to respond to any matters raised by the defendants. The plaintiffs are awarded their reasonable attorneys' fees and expenses. The attorneys for plaintiffs shall file their request for fees in accordance with the local rules.
This 21st day of May, 2003.
JERRY M DAV{ STATES MAGISTRATE JUDGE

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 Case 1:02-cv-00261-JAD Document 73 Filed 12/03/2004 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

F' lED

WILLIE RUSSELL, et aI.,

Plaintiffs, v.

Case No. 1:02CV261-D-D

ROBERT L. JOHNSON, et aI.,

Defendants. ____________________________________ 1

REBUTTAL DECLARATION OF MARGARET WINTER REGARDING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND EXPENSES
MARGARET WINTER, pursuant to 28 US.c. § 1746, hereby makes the following declaration: 1. I submit this Declaration as the ACLU's response to the factual allegations in Defendants'
Memorandum in Opposition to Plaintiffs Motion for Attorneys' Fees and Expenses. The vast majority of Defendants, complaints are factually incorrect or otherwise unfounded. As to the small number oftheir complaints that do have merit, I herein withdraw my claim for the items in question.
2. In the following paragraphs, I address Defendants' factual allegations pertaining to the ACLU in the order in which they are raised in their Memorandum. Plaintiffs' responses to Defendants' legal arguments are contained in Stephen Hanlon's Declaration filed herewith.
3. Defendants complain that I spent half an hour on March 7,2002 on "logistics for trip,"
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rather than delegating the task to a paralegal or clerk See Memorandum at 6 [ Mem.6]). The trip in question was my March 12, 2002 trip to Jackson to meet with Commissioner Robert L. Johnson and Deputy Commissioner Christopher Epps and their lawyers, in an effort to resolve Plaintiffs' complaints without litigation. I could not possibly have delegated to a secretary or paralegal the task of planning the trip logistics. I had to coordinate my travel plans with co-counsel Stephen Hanlon and local counsel Robert McDuff, and I could only do this by communicating directly with them, not through an intermediary. Mr. Hanlon and I had to travel on different flights, and we had to find a narrow window of time to allow us time to confer together with Mr. McDuff before our meeting with the Commissioner. Had I tried to use a secretary or paralegal to perform this task, he or she could only have acted as a go-between, doubling or trebling the time necessary for each to arrive at an itinerary.
4. Defendants similarly claim that the fifty-four minutes I spent on February 19, 2002 conferring with Plaintiffs' experts Vincent Nathan and James Balsamo regarding logistics was a task for a paralegal or clerk. [Mem. 6] That is incorrect. I was in negotiations with Plaintiffs' experts at this time regarding their willingness and availability to provide services in the case, and a major point of concern for all the experts was the remoteness of Parchman from major airports, and the considerable time that would be involved in travel for tours. There was a rapid back-and-forth between us in discussing these issues, while we viewed flight costs and availability together on the Internet. It would have taken far longer for me to conduct these negotiations had I involved a clerk as an intermediary, and the experts would properly have refused to waste their time communicating on these issues with a clerk who would have had no authority to make final decisions.
5. Defendants claim that the 3.5 hours I spent on February 7, 2003 assembling trial
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documents was a clerical task. [Mem. 6] I could not possibly have delegated this job even to another lawyer on the litigation team, let alone to a clerk or paralegal. Since Plaintiffs' counsel had to travel from Washington, D.C. to Oxford, Mississippi for trial, and the enormous case file could not be moved in its entirety, I had to review large quantities of documents to winnow them down to those documents I would likely use as exhibits or for impeachment or cross-examination, and those I might need during procedural or evidentiary disputes, and to organize them so that they would be of most utility to me at trial.
6. For similar reasons, most of Defendants' list of complaints that NPP's litigation fellow Amy Fettig billed for time that should have been performed by a paralegal or clerk [Mem. 7] are meritless. Almost all of the challenged entries (for January 16, 17,22,23 and 24, February 4, and June 23 and 26,2003) relate to logistics for the second tour of Parchman on the eve oftrial and for the trial itself, or to logistics for the July 2003 post-judgment monitoring tour. These entries come to a grand total of 3 hours eighteen minutes. Ms. Fettig could not have delegated these tasks to a paralegal or clerk, for the same reasons as explained above in ~ 5. Logistics for the Parchman tours and the trial were completely intertwined with litigation decisions, and involved coordinating the travel schedules ofPlaintiffs, four expert witnesses and five lawyers from cities around the country, and negotiating with MDOC's lawyers on limitations as to dates and hours of touring and order of appearance of the expert witnesses at trial.
7. Ms. Fettig claimed six minutes (0.1 hour) on January 27, 2003 for setting up an attorney client call with one of the Plaintiffs; Defendants say this task should have been done by a clerk or paralegal [Mem. 7]. The reason why Ms. Fettig had to set up a call on certain occasions, rather than having a paralegal or clerk perform the task, is that MDOC staff resisted placing our legal calls to
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the death-row clients, a problem requiring an attorney's intervention. Note, for example, the entry for Margaret Winter for January 21, 2003 ("Telephone call/write to L[eonard] Vincent re problems getting confidential legal calls with clients").
8. Ms. Fettig claimed 2.5 hours on July 17, 2002 for "coordination of court filing." On that date Plaintiffs were preparing to file and serve multiple documents, including the Complaint, motion for preliminary injunction, and discovery requests, requiring direct and extensive coordination between the National Prison Project, local counsel McDuff, and the Mississippi ACLU. Legal and tactical decisions were being made as to the timing and sequence ofthese filings, and it would have been impossible for Ms. Fettig to delegate these decisions to a paralegal or clerk.
9. A tiny handful of Ms. Fettig's entries - totaling altogether 1.1 hour - do appear on their face to relate to paralegal or clerical tasks: (7/16 attempts to fax documents to the court; 1117 filing discovery requests; 3128 cover letter, certificate of service, prepare for filing findings of fact) [Def. 7]. We withdraw our request for compensation for these entries, totaling 1.1 hour.
10. Defendants' claims that certain of my time entries were apparently "unrelated to the case" [Mem. 8] are incorrect. First, Defendants challenge the entry of eighteen minutes (0.3 hour) on 02/04/02 for "gathering documents for Department of Justice inquiry." This DOJ inquiry was intimately connected with the case: counsel for DOJ's Special Litigation Section had expressed an interest in bringing suit regarding the very conditions in Unit 32 about which the named Plaintiffs complained. As this might have benefitted the class greatly, bringing to the case additional experts beyond Plaintiffs' means, I provided DOJ's counsel with documents to assist them in making their decision.
11. Defendants also complain that the twenty-four minutes I spent on July 9, 2002,
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conferring with Robert McDuff regarding Tracy Hansen's motion for stay of execution was "unrelated to the case." [Mem. 8] This allegation, too, is incorrect: Hansen was a named plaintiff, and when he received an execution date it was necessary for Plaintiffs counsel to confer concerning the impact of the impending execution on the litigation. Plaintiffs did not bill Defendants for bringing the motion for stay of execution.
12. Defendants complain that the 1.90 hour I spent on August 19, 2004, researching execution statistics, and the forty-two minutes I spent on August 22 conferring with Plaintiffs' experts Terry Kupers and Vincent Nathan regarding those statistics, were "unrelated to the case." [Mem. at 8] In fact, however, Dr. Kupers prominently cited to and relied on those statistics at page 1 of his final report.
13. Defendants complain that the twenty-four minutes (0.4 hour) I spent doing legal research on dismissal without prejudice, in connection with "S. Brown claim." (Mem. at 8) was "unrelated to this case. In fact, the claims of named plaintiff Sherwood Brown were the subject of extensive discussion and negotiation between Commissioner Johnson and myselfbetween April and mid- June of 2002, when Plaintiffs were attempting to settle their claims administratively. Sherwood Brown had brought a case pro se concerning the permanent confiscation of his fan for a minor infractiona problem affecting a significant portion ofthe class, and which was to figure centrally in the lawsuit. Therefore, Plaintiffs needed to have Mr. Brown dismiss his individual lawsuit in order to have him proceed as a named plaintiff in the class action, so as not to create a risk of inconsistent rulings; to this end, I had to assist him in dismissing his individual case without prejudice.
14. Defendants state that on "07/11 through 07/17" [of 2003], I made "entries for work on appeal - duplicate entries for same dates for work in the trial court. 11.50 hours." [Mem. 8]
DECLARATION OF MARGARET WINTER, DECEMBER 2, 2004
5

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Defendants are correct: half of a page of the computer print-out for my hours for the dates in question contained entries for both District Court hours and Court ofAppeals hours. This page was submitted with the original District Court fee petition, and then later inadvertently submitted as an exhibit with the fee petition to the Court of Appeals without redaction of all of the duplicate items. I apologize for the oversight and request that the Court simply omit from the fee award the claim for the 11.5 hours that were inadvertently billed twice.
15. Defendants contend that four ofMs. Fettigs' time entries for legal research are unrelated to this case. [Mem. 8] On May 22, 2003, she spent a total of 1.9 hours reviewing 5th Circuit cases citing Lewis v. Casey. We undertook the research in question because Lewis addresses the authority of district courts to extend relief to facilities other than that where federal violations have been proved at trial. The Court's May 21 order had extended to all of Unit 32 some of the remedies the death row plaintiffs had requested, and we anticipated that Defendants would seek a stay on this ground. I believe it was for similar reasons that on May 22 and May 27 Ms. Fettig undertook legal research in Westlaw's 5th Circuit and Allfeds databases ("Allfedo" is a typographical error for "Allfeds") for application ofthe Turner standard to Eighth Amendment cases; however, because I no longer recall the specific need for that particular inquiry, we withdraw the request for compensation for the 5.5 hours Ms. Fettig spent on it.
16. Defendants contend that Amy Fettig's time traveling to trial is objectionable "based upon her limited role at trial." [Mem. 9] Ms. Fettig not only assisted me and the experts in many ways at trial, she also handled the examination ofthe only named plaintiffwho testified in the case, and that examination covered virtually every claim in the Complaint. Furthermore, it is incorrect that the travel time from Washington to Mississippi to which Defendants object was for the trial alone: As
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6

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Ms. Fettig's time records show, her trip to Mississippi in February 2003 was also for the tour of death row on the eve of trial to prepare witnesses and gather evidence on current conditions.
17. Defendants ask the Court to reduce the rate of compensation for lawyers' travel time to fifty percent of the reasonable hourly rate. [Mem. 9] There is no factual basis for such a reduction in this case. Ronald Welch, long-time Gates class counsel, did not have the resources to retain the necessary experts to litigate the case and because Plaintiffs' case was considered a particularly undesirable one by the civil rights bar it would have been impossible for the Plaintiffs to find competent local counsel willing and able to take this case. (See the Declarations ofMississippi civil rights lawyers Robert McDuff and Ronald Lewis, submitted in support of Plaintiffs' July 2003 fee petition.) The travel we undertook was simply unavoidable if the Russell subclass was to be adequately represented.
18. Defendants further contend that Mississippi ACLU lawyer Sandi Farrell's round-trip between Jackson, MS and Oxford, MS for the trial "is particularly objectionable as she did not actively participate at trial." [Mem. 9] That is factually wrong. Ms. Farrell conducted the direct and re-direct examinations ofthree prisoner witnesses in rebuttal to Defendants' testimony that they had "fixed" the toilets in Unit 32 between the first and second days oftrial. These examinations were essential in rebutting Defendants' claims that the "ping-pong toilets" issue was moot.
19. Defendants object to the 36 minutes I claimed on July 17,2003 for responding to reporters' queries regarding a statement Commissioner Epps had made to the Associated Press about this case. [Mem. 9] I did not seek out these reporters; evidently the Commissioner did, and the press called me for a response. Since the statement the Commissioner had issued was factually inaccurate and misleading, and damaging to the cause of my clients, I was obliged to respond.
DEC LARATION OF MARGARET WINTER, DECEMBER 2,2004
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20. Defendants contend that "all hours spent on the preliminary injunction should be disallowed because Plaintiffs were not successful in that pursuit." [Mem. 10] That statement is simply wrong: Plaintiffs' motion was one hundred per cent successful. On July 17, 2002, within a few days of filing the Complaint, Plaintiffs filed a Motion for TRO and/or Preliminary Injunction ordering Defendants to permit an immediate tour of Death Row by Plaintiffs' experts and counsel; the motion was set for oral argument on an expedited basis, and after argument on July 19 the Court granted the very relief Plaintiffs requested. Defendants may have confused this motion for preliminary injunction with the unsuccessful motion for stay of execution of Tracy Hansen, for which Plaintiffs did not seek fees.
21. Defendants also attack the hours that Amy Fettig spent on the preliminary injunction motion, and on gathering affidavits in support of for the motion, on the ground that the motion was "unsuccessful." (Mem. 10-11) As explained in the previous paragraph, this argument is baseless since the motion was in fact entirely successful.
22. Defendants further claim that all hours expended by Plaintiffs in opposing Defendants' motion for a stay of judgment and moving to dismiss their appeal should be disallowed because those efforts were unsuccessful. [Mem. 11] Those efforts were essential to protect the benefits won by the class in the District Court. Plaintiffs had brought this suit to trial with extraordinary speed, winning both a preliminary injunction and a motion to expedite discovery and trial because of the life-threatening conditions in Unit 32 during the hot summer months. This Court had likewise ordered expedited post-trial briefing, and issued its own memorandum opinion and final judgment on a highly expedited basis, in May 2003. Defendants moved to stay the judgment in June, when the Plaintiffs were already being exposed to another summer of deadly heat and lack of sanitation.
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Plaintiffs' counsel could not ethically have refrained from opposing the stay, and there was solid legal ground for opposing it. What is more, Plaintiffs' efforts opposing any stay of the Court's injunctions were not only ethically required but also partially successful: they resulted in an order by the 5th Circuit expediting the appeal in lieu of denying the stay.
23. Defendants list what they characterize as "particularly egregious examples of excessive time spent on a particular task''by me and by Ms. Fettig. [Mem. 12-13] The time spent on the tasks at issue was by no means excessive, but rather was essential to the success of pivotally important stages of the case, as shown below.
24. Defendants complain that I spent 5.3 hours on March 6-7, 2002 drafting a memo to the MDOC Commissioner. [Mem. 12] The March 8, 2002 memo in question was time-consuming to produce because it was intended to be the basis of any future Complaint that might be filed. It was a four-page, single-spaced document summarizing all the salient facts that Plaintiffs' counsel had gathered up to that time regarding death row conditions as to which my office and Holland & Knight were contemplating bringing suit. We presented the memorandum to Commissioner Johnson in advance of a face-to-face meeting between Stephen Hanlon, Robert McDuff and myself with the Commissioner, Deputy Commissioner Epps, and their counsel, in an effort to resolve the Plaintiffs' claims administratively. The memorandum was intended to, and did, serve not only as a detailed agenda for the meeting but also as a good-faith effort to avoid litigation. Equally important, the memorandum was a written record of those efforts in the event that negotiations failed. Plaintiffs relied upon that memorandum in opposing Defendants' motion to dismiss for failure to exhaust administrative remedies, and this Court as well as the Court of Appeals relied upon it in rejecting that defense. I used my time efficiently in preparing the memorandum and given the nature and
DECLARAnON OF MARGARET WINTER, DECEMBER 2, 2004
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quality of the document I am confident that it was prepared in a reasonable amount of time. 25. Defendants complain that I spent 6.5 hours, from May through June 5, 2002, negotiating
with a pro bono organization known as Doctors of the World ("DOW") concerning Plaintiffs' request that the organization locate for us an expert witness on the subject of heat-related illness. [Mem. 12] Doctors of the World accepts requests from pro bono legal organizations to locate medical specialists through the organization's network of volunteers, but it requires applicants for such assistance to demonstrate that they meet rigorous criteria, and to prepare detailed memoranda describing the nature and the importance ofthe proj ect, the precise expert qualifications desired, and details and timing of the tasks the expert would be expected to undertake. We needed DOW's assistance for several reasons: First, plaintiffs' resources for expert witnesses were quite limited; second, medical experts with special expertise on the subject of heat-related illness were difficult to locate, and this was especially true because Plaintiffs were breaking new ground in their attempt to use medical evidence to prove that the intense unmitigated heat in Unit 32 threatened prisoners' lives; and third, we needed a highly-qualified expert who would be not only willing but available to provide services to us on an expedited basis, giving us a report almost immediately as a basis for seeking a preliminary injunction to gain access to Unit 32, and then touring death row during the hot summer weather. It took several conferences and several memos to DOW's directors before the organization granted our application and located for us an extraordinarily well-qualified physician, Dr. Susi Vassallo. Since the task of locating an expert with the necessary qualifications was so difficult, and since our diligence in locating an expert of the calibre of Dr. Vassallo had a decisive impact on the success ofPlaintiffs' litigation efforts, the 6.5 hours I spent in identifying Dr. Vassallo and negotiating for her services in this case were hardly excessive. All of this time was spent on
DECLARATlON OF MARGARET WINTER, DECEMBER 2, 2004
10

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necessary tasks that I carried out in an efficient manner. 26. Defendants complain that the 19.8 hours I spent drafting the Complaint between June
27 and July 11, 2002 were excessive. [Mem. 12] That amount of time was necessary, however, to produce a Complaint where many if not most of Plaintiffs' Eighth Amendment claims would withstand a motion to dismiss only ifthe Complaint on its face made it clear that certain conditions which might not in and of themselves violate the Eighth Amendment (e.g., infrequent access to showers, inadequate pest control, exposure to severely mentally ill prisoners) nevertheless, in combination, deprived the Plaintiffs of specifically identifiable basic human needs. The Complaint necessarily went through a number of versions and redrafting as allegations were checked and rechecked for accuracy, new information was obtained, and capital-case counsel for certain of the prisoners identified in the Complaint decided that it was too risky for their clients to be identified. I have drafted class action complaints in many prisoner rights cases, and I am confident based on my experience that the time I claimed for work on the Complaint was reasonably spent on necessary tasks.
27. Defendants complain that on July 29,2002 I spent two hours preparing a detailed letter and list of documents to inform MDOC's counsel about all aspects of the experts' upcoming tour of Unit 32, including an itinerary and a list of all the documents the experts would need to review. [Mem. 12] The letter took two hours to write because I had to attempt to anticipate every aspect of the tour and clarify to MDOC's counsel in advance the cooperation we would need. I was aware from the experience of several expert tours at Parchman over the previous four years that this kind of detailed anticipation of possible problems was essential to a productive tour.
28. Defendants complain that I spent an excessive amount of time preparing the post-trial
DECLARAnON OF MARGARET WINTER, DECEMBER 2, 2004
11

Case 1:02-cv-00261-JAD Document 73 Filed 12/03/2004 Page 12 of 18
brief(34.9 hours). [Mem. 12] Based on the experience of more than two decades working on such briefs and in mentoring other lawyers in preparing such briefs, I feel confident that those hours were spent efficiently and productively. My time records show how many hours I devoted to each portion ofthe brief, separating out the time I spent for the proposed factual findings on environmental health and safety, mental illness and psychiatric care, heat-related illness, and corrections issues, on the proposed conclusions oflaw, and on the editing ofthe entire brieffor succinctness, thoroughness and clarity. Since the post-trial brief is intended to assist the district court and to help shape the issues in case of an appeal, it was important that the facts be marshaled in as clear and persuasive a fashion as possible and with ample supporting authority from the record.
29. Defendants claim that the hours I spent on Plaintiffs' brief in the 5th Circuit and on preparation for oral argument in the Court of Appeals were excessive. [Mem. 12] Based on my appellate experience in prisoners' rights cases, I am confident that all ofthe time for which I claimed compensation was productively spent in producing a first-rate brief and oral argument in order to protect the District Court's decision on appeal. On appeal, Plaintiffs' counsel had to address not only all the substantive issues decided in the District Court but also a host of procedural issues and arguments that Defendants had scarcely touched on in the District Court, including arguments on exhaustion, on the PLRA termination provisions, on class certification, and on the procedural implications and consequences of the Gates decree.
30. Defendants claim that Ms. Fettig billed 15.6 hours on January 17 and February 6,2003 for "Reviewing W. Russell file." [Mem. 13] That is incorrect. Ms. Fettig billed a total of six hours eighteen minutes on those dates, for review ofWillie Russell's file and also for preparing an outline, because at this time Plaintiffs' counsel were anticipating that Mr. Russell would be one of the key
DEC LARATION OF MARGARET WINTER, DECEMBER 2,2004
12

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prisoner witnesses at trial. (See Ms. Fettig's January 17 entry, billing three hours six minutes for "Review of W. Russell file"; February 6 entry billing 3 hours twelve minutes for "Review of W. Russell file and outline.)
31. Defendants suggest that because there were four lawyers in this case (Mr. Hanlon and I as lead counsel, with Ms. Fettig, Ms. Caramello and Ms Farrell in more junior roles) the case was "overstaffed." [Mem. 15-16] Defendants complain that I spent 89.5 hours on trial preparation while Ms. Fettig spent 46.20 hours, Mr. Hanlon 44.10 hours, and Ms. Caramello 43.1 hours. [Mem. 16] I am confident that my work was not duplicative of work by Mr. Hanlon, Ms. Fettig or Ms. Caramello because Mr. Hanlon and I took care to divide the labor in the case in a rational manner and to assign discrete tasks accordingly to the more junior lawyers.
32. Moreover not a single one ofmy time entries is designated as "trial preparation." Rather, each entry identifies a specific task. Thus, for example, in the weeks and days leading up to the trial, I made specific separate entries for reviewing Defendants' expert reports (e.g., January 13, 2003); drafting letters to Defendants' counsel regarding document production and reviewing Defendants' discovery responses (e.g., January 13, February 5); conferring with Plaintiffs' experts Vincent Nathan and Dr. Kupers about documents produced by Defendants in discovery (e.g., January 13, February 5); reviewing defendants' document productions on correctional, environmental and psychiatric issues (e.g., January 17 and 20); conferring with Defendants' counsel about scheduling the testimony of expert witnesses and expert reports(e.g., January 23, 27, 29); conferring with Defendants' counsel about the pre-trial tour and the new ACA report abd other documents produced by Defendants in discovery (February 2, 3); drafting testimony outlines for expert witnesses (February 4, 5, 6); conferring with and writing to Defendants' counsel about irregularities in their
DEC LARATION OF MARGARET WINTER, DECEMBER 2, 2004
13

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psychiatric expert's report (February 6, 7); meeting with expert witnesses to prepare trial testimony (February 10, 11); drafting an opening statement (February 11); and drafting questions for crossexamination ofDefendants and their experts (February 12). Defendants' unsubstantiated claim that my pretrial time entries are duplicative of work done by the other lawyers is simply untrue.
33. Defendants claim that the 8.1 hours I spent researching heat stroke should be discounted, as should the 6.6 hours Ms. Fettig spent researching ACA accreditation standards, as these are "topics that are more than adequately covered by and spent on expert opinions." [Mem. 16] I did the research on heat stroke in April and very early May 2002, before we had retained a medical expert, when my task was to determine how to show that exposure to excessive heat violates the Eighth Amendment - a proposition for which there was very little precedent. It was through this research that I determined that we needed a medical expert with qualifications like Dr. Vassallo's. Ms. Fettig's research in January 2003 on ACA's accreditation of correctional facilities was also perfectly appropriate and nonduplicative; it was part of a successful effort to rebut MDOC's claim that ACA's accreditation of Parchman on the eve of trial proved that conditions in Unit 32 were constitutional.
34. Defendants make the completely unfounded charge that "all ofthe 77 hours claimed by Sandi Farrell are objectionable in whole as duplicative and unproductive as she played no active role in the litigation." [Mem. 16] In additional to the valuable role she played at trial putting on rebuttal witnesses, Ms. Farrell's time records show that the hours in question were spent interviewing prisoners at Parchman on May 21,22,23,24, June 6 and July 2,2002, in preparation for drafting the Complaint; in preparing witnesses at Parchman to testify, and in assisting Plaintiffs' experts in touring and gathering facts in Unit 32 on the eve of trial, on February 10, 11 and 12,2003. I know
DECLARATlON OF MARGARET WINTER, DECEMBER 2, 2004
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that the hours spent on these tasks were non-redundant; I assigned Ms. Farrell to these essential tasks because it was the most efficient division oflabor among the members of the litigation team.
35. Defendants' assertion that "the number of telephone calls, conferences and e-mails exhibited in this case are excessive" (Mem. 17) is incorrect. Defendants do not point to any specific communication; they do not even name any particular lawyer as being guilty of "excessive" communications. I made time-entries only for communications that I knew were non-superfluous and nontrivial. To take only a few examples, among scores of entries: telephone conferences with potential named plaintiffs to decide whether they were qualified to serve as class representatives (May 13, 2002); telephone calls with the Mississippi ACLU to assign the task of gathering public health information regarding conditions in Unit 32 (May 14, 30, 31, June 5); discussion with opposing counsel regarding the designation of the magistrate judge as the trial court (July 17); conference with attorney Ronald Welch concerning his views on the coverage of the Gates decree (July 23); conferences with class members' capital case lawyers to obtain permission to interview their clients as potential witnesses in the conditions case (July 25); meeting with the experts on the eve of the death row tours to decide what prisoners to interview and what cells to view (August 7); discussion with the expert witnesses on the issues to be addressed in their post-tour reports (August 13, 14, 18, 19,20,28,29); communications with the Court and with opposing counsel to schedule a hearing on Plaintiffs' motion for expedited trial (September 23,24); telephone calls to the experts to determine their availability for trial (October 16, 22); letters and telephone calls to opposing counsel concerning discovery (November 22, 2002, January 3, 27, 28, 29, February 5, 6, 7).
36. Defendants claim that Plaintiffs seek to bill them for their experts' fees in this case. [Mem. 22] That is incorrect. My office billed only for the reasonable, reimburseable out-of-pocket
DECLARATION OF MARGARET WINTER, DECEMBER 2,2004
15

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expenses (lodging, meals, airfare, ground transportation) that we paid the four experts for their trips to Mississippi for tours and the trial, and the list of expenses attached to my original fees declaration specifies, as to each payment to the experts, that it is for their expenses. The expenses incurred by the experts were modest: Each attempted to book flights at the lowest available rates, they stayed in moderately-priced lodgings, and their expenditures for meals were very low. The grand total that my office paid out to cover the experts' reimburseab1e expenses for their combined eight trips to Mississippi (two trips each by four experts) was $4,927.84; the remainder was paid by Holland & Knight.
37. The inclusion of charges for toiletries and clothing for Ms. Fettig on February 9,2003 (which she purchased because the airline had lost her suitcase when she arrived in Mississippi for the February pre-trial tour and the trial) was completely inadvertent. Plaintiffs do not claim reimbursement for these items and the total ($78) should be subtracted from Plaintiffs' claim.
38. Defendants incorrectly state that Plaintiffs do not identify the nature ofFederal Express mailings or fax charges. The Expense Schedule attached to my original affidavit in support of the fee petition identifies the nature of each such expenditure, e.g., September 3,2002, Federal Express to M. Winter from [Dr.] S. Vassallo; September 3,2002, Federal Express from M. Winter to U.S. Magistrate; September 24, 2002, Fax from M. Winter to Judge Davis. I made a judgment in each instance as to the degree ofurgency involved in deciding whether a document should be sent by fax, Federal Express or regular mail, also taking into consideration that, in my experience over the last several years, mail delivery between Mississippi and Washington, D.C. routinely takes several days. In this case, in which discovery and trial were expedited, time was frequently of the essence in delivering documents to experts, the Court, and opposing counsel.
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39. Defendants' complaint that our charges for photocopying were excessive and not properly documented is unfounded. My office did almost all of the photocopying that was required in litigating this case from its inception through discovery, trial, and appeal; and because the case involved a class action, pretrial motions and affidavits, extensive legal research, post-trial briefing, and multiple motions and briefs in the Court ofAppeals, the case necessary involved a large amount of photocopying. Based on my experience in litigating prisoners' rights class action cases, I am confident that the amount of photocopying in this case was not only necessary but well within the limits of the amount of copying normally required in such cases All photocopying for the case was done in accord with my office's strict policy of entering a case code into the copier before each and every photocopyingj ob, and keeping exact account ofthe number ofphotocopies made in each case.
40. In summary, Plaintiffs withdraw the following items challenged by Defendants: Six hours thirty-six minutes (6.6 hour) of Ms. Fettig's time (see '119, above); eleven and a half hours (11.5 hours) of my time, which was inadvertently claimed in both the District Court and the Court of Appeals fee petitions (see '1114); and seventy-eight dollars in expenses, for non-reimburseable items inadvertently charged to Defendants (see '1137).
I declare under penalty of perjury that the foregoing is true and correct to the best of my information and belief, this 2nd day of December 2004.
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CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of December 2004 I served the following document on the Defendants in Russell v. Johnson, 1:02CV261-D-D:

REBUTTAL DECLARATION OF MARGARET WINTER REGARDING PLAINTIFFS' MOTION FOR ATTORNEYS FEES AND EXPENSES
and REBUTTAL DECLARATION OF STEPHEN F. HANLON REGARDING PLAINTIFFS' MOTION FOR ATTORNEYS FEES AND EXPENSES

by causing photocopies of the forgoing document to be sent by first class mail, postage prepaid, to the following counsel of record:

John L. Clay, Esq. Special Assistant Attorney General Office of the Attorney General for the State of Mississippi 450 High Street Gartin Justice Building, 5th Floor Jackson, MS 39201

.-

Margaret

 
 I'

Case 1:02-cv-00261-JAD Document 74 Filed 12/03/2004 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

F I LED

WILLIE RUSSELL, ET AL
VS ROBERT L. JOHNSON, ET AL

PLAINTIFFS Case No. 1:02CV261-D-D DEFENDANTS

REBUTTAL DECLARATION OF STEPHEN F. HANLON REGARDING PLAINTIFFS' MOTION FOR ATTORNEYS FEES AND EXPENSES
Stephen F. Hanlon, pursuant to 28 U.S.C. § 1746, makes the following rebuttal declaration in support of Plaintiffs' motion for Attorneys Fees and Expenses herein and in opposition to the State Defendants' Memorandum in Opposition thereto:
1. I previously filed a Declaration in this case in support of Plaintiffs' motion for award of attorneys fees and expenses, dated July 17, 2003.
2. I have reviewed the State defendants' Memorandum in Opposition to Plaintiffs' Motion for Attorneys Fees and Expenses and submit this rebuttal declaration.
3. I have represented many prevailing plaintiffs in civil rights litigation in the federal district courts of this country for the past 25 years. During that period of time, I have routinely sought and obtained compensation by the district courts of this country for time expended on attorneys fee applications. The Fifth Circuit has squarely held that " ... fees-on-fees are 'directly and reasonably incurred in proving an actual violation ofplaintiffs rights and therefore

Case 1:02-cv-00261-JAD Document 74 Filed 12/03/2004 Page 2 of 8

recoverable under section 1997e(d)." Yolk v. Gonzalez, 262 F.3d, 528, 535 (5th Cir. 2001). In

this particular case, remarkably little work (approximately 27.3 hours) is being submitted for

time spent in preparation of the fee application, given the complexity of the work involved.

4. With respect to Defendants' complaint that several of our time entries in the time

submitted in Plaintiffs' motion for attorneys fees and expenses in this case are lumped or

bunched, as suggested by the Court in ACLU v. Barnes, 168 F. 3d, 423, 429 (11 Cir. 1999), I

have reviewed our time records, our notes, the case file and correspondence and state that the

following times are good faith estimates for the following time entries:

Stephen F. Hanlon

7/11/02 Confer with Winter and McDuff regarding same

.5

7/16/02 . Confer with Winter regarding same

.3

8/13102 Review memo regarding same

.5

10122/02 Conference call hearing

.4

2102/03 Conference with J. Balsamo

1.0

2/03/03 Conference with P. Winter regarding same

.3

4/07/03 Conference with P. Winter regarding same

.5

2/10103 2/11/03

Heather E. Caramello

Prepare trial documents for trip to Mississippi

1.0

Travel to Clarksdale, Mississippi

6.0

Balance of time for trial preparation as described in 5.0 time entry

Participate in tour of Unit 32-C, Parchman Death Row, 7.0 including interviews with inmates to determine whether and to what extent conditions had changed

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Balance of time in trial preparation as described

7.2

2/12/03 Entire time spent in trial preparation as described

14.5

therein

2/13/03 Entire time spent in trial preparation as described

14.5

therein

2114/03 Prepare additional exhibits and papers for trial

2.0

5. In my 25 years of work in representing prevailing parties in attorneys fees petitions in civil rights cases, I have occasionally faced the claim by the losing party's lawyer that the plaintiffs fees should be reduced because the plaintiff achieved only a partial or limited success with regard to the relief sought in the suit. A cursory examination of Unit 32-C before the institution of this lawsuit and after the conclusion of this lawsuit would immediately reveal that the plaintiffs achieved overwhelming success in this case and that this case is uniquely unsuited to the narrowly crafted partial success limitation on claims for civil rights attorneys fees ..
6. In the Fifth Circuit's opinion in this case, the plaintiffs prevailed on seven ofthe ten injunctions scrutinized by the Fifth Circuit, including all of the major claims in this case. Plaintiffs did not prevail on three unquestionably minor injunctions: (1) reducing the general preventive maintenance schedule and program to writing; (2) returning inmates' clothing without foul smell; and (3) requiring the inmates to wear sneakers instead of flip flops while exercising and providing inmates with a shaded area for exercise and access to water. Hensley v. Eckerhard, 461 U.S. 424 (1983) sets out the "proper method of calculating attorneys' fees when the plaintiff prevailed on less than all claims." Id. Under Hensley "[w] here all theories derived from a common core of operative facts, the focus should be on the significance of overall results as a function of total reasonable hours ... [and] [i] it is improper to make the reduction based on

-3-

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a simple ratio of successful issues to issues raised." In this case, all theories derived from a common core of operative facts and therefore the Court's focus should be on the significance of the overall results, and it would be improper to make a reduction based on a simple ratio of successful issues raised. The simple fact of the matter is that this Court found pervasive Eighth Amendment violations in Unit 32-C, and all of the major injunctive relief ordered by this Court was upheld on appeal. The Rendon case cited by State Defendants to support its partial success argument here is wholly inapposite. In that case, the court reduced a fee award where "counsel had expended considerable time and effort on plaintiffs' (unsuccessful) claims of discriminatory hiring and termination practices." As this Court knows, that was hardly the case on the three minor unsuccessful claims in this case.
7. The issues involved in the trial and Fifth Circuit appeal in this case are some of the most complex issues in any litigation in which I have been involved in my 38 years of practicing law. I cannot imagine Ms. Winter working on the brief and preparing for the oral argument in less time than she did here (124.50 hours and 49.60 hours respectively). In point of fact, three lawyers from my law firm and myself read the briefs and conducted a moot court for Ms. Winter in preparation for oral argument, and none of that time is being submitted in this fee petition. All of the work Ms. Winter did on the post trial brief, as well as the work that Ms. Fettig did on the post-trial brief, as well as all of the work by Chesterfield Smith Fellow Heather Caramello, was absolutely essential. It is remarkable that Ms. Winter was able to draft the complaint in under 20 hours. The five and a half hours that Ms. Winter spent drafting a memo to the Commissioner was the foundation for this Court's and the Fifth Circuit's finding that plaintiffs have exhausted administrative remedies in this case. A cursory review of the Fifth Circuit's opinion reveals just how important this document was in that court's extensive analysis
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of the exhaustion issue. The time spent by Ms. Fettig in writing affidavits in this case was absolutely essential to the preliminary injunctive relief initially sought in this case. The same is true ofthe 15.6 hours that Ms. Fettig spent reviewing Mr. Russell's file.
8. In my 38 years of practicing law, I have never seen a more efficiently prepared and tried case. Each attorney had distinct responsibilities and made distinct contributions to the result in this case. This case was managed with remarkable efficiency. Not a single deposition was taken. This is the leanest case, in terms of the time spent by the attorneys, that I have ever participated in, especially considering of the complexity of the issues and the importance of the case to the clients.
9. The capped PLRA rates that we are seeking for Ms. Winter and myself in this case, namely $169.50 per hour, are 50 cents an hour less than the rates that Holland & Knight routinely bills for first year associates in our Atlanta office. Given Ms. Winters' years of experience and her degree of expertise, a lawyer with similar experience and expertise in the Holland & Knight offices in Washington, D.C. would be billed out to paying clients at a rate of $400 an hour. My current rate for paying clients is $440 per hour. Thus, the limitations imposed by the Prison Litigation Reform Act upon the rates that this Court can award Plaintiffs will result in an enormous windfall for the Defendants.
10. With respect to the August 6, 2002 expense of $5, 352.59 which we have submitted for Plaintiffs' environmental expert James J. Balsamo, Jr.'s expenses for an inspection tour of Parchman and facility in Mississippi, we are hereby withdrawing $5,000 of that amount, which was for expert fees and not expenses, and was inadvertently included in the expenses submitted for reimbursement. Otherwise, I believe the total expert expenses submitted for reimbursement, once this $5,000 is retracted, is $8,802, which would cover four experts, each
-5 -

Case 1:02-cv-00261-JAD Document 74 Filed 12/03/2004 Page 6 of 8
making two trips to Mississippi, which is a little more than $1100 per trip, which seems entirely reasonable to me.
11. With respect to the matter of appropriateness of reimbursement of Plaintiffs' litigation expenses, the law could not be clearer. See Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11 th Cir. 1983):
• ("[A]ll reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988.". Id. at 1192.
• "As is true in other applications of section 1988, the standard of reasonableness is to be given a liberal interpretation" (citing Gates v. Collier, 616 F.2d at 1275). Id. at 1192.
• "We reject any interpretation of 'reasonable costs' which would penalize attorneys for undertaking civil rights litigation." Id. at 1191.
• "Litigation costs are likely to escalate with inflation and the increasing elaboration of civil rights law. They must not be allowed to whittle away at the fees ofthe civil right lawyer." Id. at 119l.
• "We hold that, with the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of the litigation, or as an aspect of settlement of the case, may be taxed as costs under section 1988." Id. at 1192.
• "Civil rights litigants may not be charged with selecting the nearest and cheapest attorney. Neither may civil rights attorneys be charged with being financial efficiency experts." Id. at 1192.
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Case 1:02-cv-00261-JAD Document 74 Filed 12/03/2004 Page 7 of 8
• "Travel, telephone and postage expenses are not unusual. All of them have been
awarded in the decisions ofthe courts of this circuit." Id. at 1192.
12. The rationale for an expansive interpretation of § 1988 to include the recovery of
out-of-pocket litigation expenses that are not a part of ordinary office overhead was well stated
by Judge Posner in Henry v. Webermeier:
The Act [section 1988] seeks to shift the cost ofthe winning party's lawyer (in cases within the intended scope of the Act) to the losing party; and that cost includes the out-of-pocket expenses for which lawyers normally bill their clients separately, as well as fees for lawyer effort. The Act would therefore fall short of its goal if it excluded those expenses. What is more, the line between fees and expenses is arbitrary. A lawyer's hourly billing rate includes many overhead expenses such as local telephone calls. It is impossible to believe that Congress would have wanted prevailing parties to get back their lawyers' local telephone expenses (invariably included in the hourly fee) but not their long-distance expenses (invariably billed separately); or to get back their secretarial expenses - which are included in the overhead and therefore billed as part of the lawyer's hourly rate rather than separately - but not the expenses of word processing, often billed separately to the client. 738 F. 2d 188, 192 (ih Cir. 1984). 13. Each ofthe expenses for which Plaintiffs seek recovery was directly incurred in
furtherance of this lawsuit and is of the type that is routinely incurred by counsel in representing
their clients. 14. Travel time between the location of counsel and the litigation site is fully
recoverable. As Judge Posner has explained, "lawyers invariably charge their clients for travel
time" because "when a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client ifhe had not been traveling." Henry v.
Webermeier, 930 F. Supp. 1492 (M.D. Ala. 1996); Hall v. Lowder, 263 F. Supp. 2d 1352 (M.D.
Ala. 2003).
-7 -

Case 1:02-cv-00261-JAD Document 74 Filed 12/03/2004 Page 8 of 8

15. The Defendants' argument that the Plaintiffs are seeking compensation for

excessive or otherwise unnecessary hours is perhaps best analyzed using a test set out by Judge

Forrester in the seminal attorneys' fees case in the Eleventh Circuit, Norman v. Housing

Authority ofthe City of Montgomery, 836. F.2d 1292 (1988). A lawyer should not be

compensated for "hours spent on activities for which he would not bill a client of means who

was seriously intent on vindicating similar rights. (ld. at 1301.) In the private practice of law,

we frequently encounter a client of means seriously intent on vindicating similar rights. We call

these cases "bet the company" cases. This case was a "bet the company" case for our clients.

The appalling conditions to which they were being subjected prior to the institution ofthis law

suit provided that the factual predicate for a claim in which they had an enormous stake. With

the minor adjustments made in this fees claim by the Declarations of myself and Ms. Winter

submitted herewith, the Court can be assured that we are seeking compensation in this case only

for hours spent on activities which a lawyer in the private practice would bill to a client of means

who was seriously intent on vindicating similar rights.

I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE

AND CORRECT. EXECUTED ON THIS

,2004.

-8-

 
 Case 1:02-cv-00261-JAD Document 75 Filed 02/04/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

WILLIE RUSSELL, ET AL V. ROBERT L. JOHNSON, ET AL

PLAINTIFFS CIVIL NO. 1:02CV261-JAD
DEFENDANTS

ORDER AWARDING ATTORNEYS' FEES AND EXPENSES Before the court are plaintiffs' motion and renewed motion for attorneys' fees and expenses in this litigation. Having considered plaintiffs' attorneys' filings and defendants' obj ections, the court is prepared to rule.
Background This request for fees and expenses is based on the findings of this court of certain constitutional violations in the housing and treatment of death row inmates at Parchman. The court entered its Final Judgment and Memorandum Opinion on May 21, 2003. The court will not reiterate all of its prior findings here. The Fifth Circuit Court of Appeals issued an opinion on June 28, 2004, vacating three of the injunctions issued by this court and limiting the injunctive relief in four other instances to Unit 32-C (Death Row) rather than the whole of Unit 32. For those reasons defendants argue that plaintiffs' request for fees and expenses should be significantly reduced. The court disagrees with the term "significantly./I

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Case 1:02-cv-00261-JAD Document 75 Filed 02/04/2005 Page 2 of 5

Attorneys' Fees Under the Prison Litigation Refor.m Act (PLRA)

The PLRA authorizes attorneys fees under certain prescribed

circumstances. 42 USC §1997e(d) provides:

In any action brought by a prisoner who is confined to any to any jail, prison or other correctional facility in which attorney's fees are authorized under section 1988 of this title shall not be awarded, except to the extent that - -
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under Section 1988 of this title; and (B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violations.

Unquestionably, the plaintiffs incurred fees and expenses in

proving actual violations of the rights of death row inmates. The

question for the court is what amount of the fee request is

"proportionately related to the court-ordered relief."

First, the hourly fee is limited to 150% of the hourly fee

paid to Criminal Justice Act attorneys. The current hourly fee in

this district is $90 per hour for both in-court and out-of-court

work. Accordingly, the maximum allowable rate is $135 per hour

under the PLRA. The court finds that the hourly rate for each

attorney and paralegal representing the plaintiffs should be as

follows:

1. Margaret Winter

$135/hour

2. Stephen Hanlon

$135/hour

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Case 1:02-cv-00261-JAD Document 75 Filed 02/04/2005 Page 3 of 5

3. Esme Caramello

$125/hour

4. Amy Fettig

$120/hour

5. Sandi Farrell

$120/hour

6. Terrance Moore

$60/hour

Turning to the hours expended by each attorney and paralegal

in this case, the court finds that all the theories in this case

derived from a common core of operative facts and that the minor

relief granted on the appeal does not justify a reduction of the

hours expended by counsel in this case. See, Hensley v. Eckerhart,

461 U.S. 424, 429 (1983). The court also rejects the defendants'

arguments for reduction except where agreed by plaintiffs. The

court finds that the hours spent on the trial of this case and the

appeal were completely reasonable, especially considering the

results.

Therefore, the court finds that following hours

reasonably expended in this litigation for each attorney and

paralegal:

1. Margaret Winter

Trial - 596.7 hours

Appeal- 240.0 hours

2. Stephen Hanlon

Trial -

77.9 hours

3. Esme Caramello

Trial -

88.0 hours

4. Amy Fettig

Trial - 283.4 hours

5. Sandi Farrell

Trial -

77.0 hours

6. Terrance Moore

Trial -

24.0 hours

Having determined the hourly rate and reasonable hours expended in

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Case 1:02-cv-00261-JAD Document 75 Filed 02/04/2005 Page 4 of 5

this litigation, the court determines the lodestar fee as follows:

l. Margaret Winter

$135 x 596.7

$80,554.50

(Appeal)

$135 x 240.0 =

$32,400.00

2. Stephen Hanlon

$135 x 77.9

=

$10,516.50

3 . Esme Caramello

$125 x 88.0

=

$11,000.00

4. Amy Fettig

$120 x 283.4 =

$34,008.00

5 . Sandi Farrell

$120 x 77.0

=

$ 9,240.00

6. Terrance Moore

$60 x 24.0

$ 1,440.00

TOTAL FEE

$179,149.00

While the court is aware that senior attorneys like Ms. Winter

and Mr. Hanlon have been awarded fees in this district of $150/hr.

for civil rights violations, the court is constrained by the limits

of the PLRA. Moreover, under the circumstances, no adjustment to

the lodestar pursuant to Johnson v. Georgia Highway Express, 488

F.2d 714 (5th Cir. 1974) is appropriate although the court

recognizes that plaintiffs' attorneys achieved a great result in an

undesirable case. The court finds that the hours approved because

of the common core of facts adequately recognizes the results

obtained.

Finally, the court finds the expenses claimed by plaintiffs

(except for the inadvertent claim of $78 for toiletries and

clothing by Ms. Fettig on February 9, 2003) should be approved in

their entirety. Defendants' objections are without merit. The

expenses approved are as follows:

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Case 1:02-cv-00261-JAD Document 75 Filed 02/04/2005 Page 5 of 5

1. National Prison Project (Trial)

$20,979.60

(Appeal)

$ 2,377.39

2. Holland & Knight, LLP (Trial)

$18,143.61

3. ACLU of Mississippi

$ 1,484.38

TOTAL EXPENSES

$42,984.98

In summary, the court awards the total amount of $146,749 for

attorneys' fees and $40,607.59 for expenses for the trial of this

case. The court awards $32,400 for attorneys' fees and $2,377.39

for expense in the appeal of this case. The total award of

$222,133.98 shall be paid within sixty (60) days of this order.

,I+h.

SO ORDERED this 't'

day of

~~,.J.

, 2005.

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 Case 1:02-cv-00261-JAD Document 87 Filed 06/14/2006 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

WILLIE RUSSELL, ET AL V. ROBERT L. JOHNSON, ET AL

PLAINTIFFS NO. 1:02CV261-JAD
DEFENDANTS

ORDER CLOSING CASE The court has reviewed the docket in this matter and finds that the issues in this case have been resolved. This matter is closed. Of course, the parties may petition to reopen in the event remedial measures are necessary. SO ORDERED this 14th day of June, 2006.

/s/ JERRY A. DAVIS UNITED STATES MAGISTRATE JUDGE

 
 210 F.Supp.2d 804 (2002)
Willie RUSSELL; Sherwood Brown; Kelvin Jordan; John Nixon; Paul Woodward; and Tracy Hansen; on their own behalf and on behalf of
those similarly situated, Plaintiffs, v.
Robert L. JOHNSON, Commissioner of the Mississippi Department of Corrections; et al., Defendants.
No. 1:02CV261-D-D.
United States District Court, N.D. Mississippi, Eastern Division.
July 15, 2002.
805*805 Sandra Farrell, ACLU of Mississippi, Jackson, MS, Stephen P. Hanlon, Holland & Knight, LLP, Tallahassee, FL, Robert B. McDuff, Jackson, MS, Margaret Winter, Amer. Civ. Liberties Union, Washington, DC, for plaintiffs.
Marvin L. White, Jr., Mississippi Atty. General's Office, Jackson, MS, for defendants.
OPINION DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION TO STOP EXECUTION
DAVIDSON, Chief Judge.
Presently before the court is the Plaintiffs' motion for temporary restraining order 806*806 and for preliminary injunction to postpone the State of Mississippi's planned execution of the Plaintiff Tracy Hansen on July 17, 2002. Upon due consideration, the court finds that the motion should be denied, and the Plaintiff Hansen's claims should be dismissed.
A. Factual and Procedural Background
The Plaintiff Tracy Hansen was indicted for the crime of capital murder of a law enforcement officer in 1987 by a Harrison County, Mississippi, grand jury for his role in the murder of Mississippi Highway Patrolman Bruce Ladner. Due to pretrial publicity, Hansen won a change of venue to Hinds County, where the case was tried. A jury found Hansen guilty of capital murder and he was sentenced to death on October 30, 1987. The Mississippi Supreme Court affirmed the conviction and sentence on December 18, 1991. Hansen v. State, 592 So.2d 114 (Miss.1991). The United States Supreme Court denied Hansen's petition for writ of certiorari on May 18, 1992, and denied his petition for rehearing on June 29, 1992. Hansen v. Mississippi, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570, reh. denied, 505 U.S. 1231, 112 S.Ct. 3060, 120 L.Ed.2d 924 (1992).

Hansen then filed an application for post-conviction relief with the Mississippi Supreme Court. The Court denied his application on October 13, 1994, and denied his petition for rehearing on March 9, 1995. Hansen v. State, 649 So.2d 1256 (Miss.1994).[1] Thereafter, on November 28, 1995, the United States Supreme Court denied Hansen's petition for writ of certiorari; his petition for rehearing was denied on January 16, 1996. Hansen v. Mississippi, 516 U.S. 986, 116 S.Ct. 513, 133 L.Ed.2d 422 (1995), reh. denied, 516 U.S. 1085, 116 S.Ct. 801, 133 L.Ed.2d 748 (1996).
Hansen then filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Mississippi. The District Court denied Hansen's petition in an unpublished memorandum opinion and order on August 5, 1999. Hansen v. Puckett, No. 1:96CV60-B-R. The United States District Court then denied Hansen's application for a Certificate of Appealability on October 13, 2000. Thereafter, Hansen applied to the United States Court of Appeals for the Fifth Circuit for a Certificate of Appealability. The Fifth Circuit denied Hansen's request on November 6, 2001; his subsequent petition for rehearing and suggestion for rehearing en banc was denied on December 5, 2001. Hansen v. Armstrong, 277 F.3d 1372 (5th Cir.2001). Hansen then filed a petition for writ of certiorari with the United States Supreme Court. The Court denied his petition on June 17, 2002. Hansen v. Sparkman, ___ U.S. ___, 122 S.Ct. 2605, 153 L.Ed.2d 791 (2002). Following that order, the Mississippi Supreme Court entered an order on June 24, 2002, setting Hansen's execution for July 17, 2002.
Thereafter, on June 25, 2002, Hansen filed a second application for post-conviction relief with the Mississippi Supreme Court seeking to have his death sentence set aside. The Mississippi Supreme Court denied the application on July 3, 2002. Hansen then filed a motion for rehearing with the Mississippi Supreme Court on July 10, 2002. That motion remains pending.
807*807 On July 12, 2002, Hansen, along with five other Mississippi death row inmates, filed the pending complaint in the case sub judice. In their complaint, the Plaintiffs assert claims under 42 U.S.C. § 1983 for violation of their rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Along with their complaint, the Plaintiffs filed a motion for temporary restraining order and preliminary injunction, seeking to temporarily postpone Hansen's July 17, 2002, execution.
B. Discussion
In order to grant a request for injunctive relief, the court must apply the standard set forth by the Fifth Circuit in Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). Pursuant to Canal Authority, the Plaintiffs in this matter have the burden of demonstrating four specific criteria:
(1) a substantial likelihood of success on the merits;
(2) a substantial threat that the movants will suffer irreparable injury if the injunction is denied;

(3) that the threatened injury to the movants outweighs any damage that an injunction might cause the respondent; and
(4) that granting the injunction will not disserve the public interest.
Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir.1995). Preliminary injunctive relief is an extraordinary remedy, not normally available unless the movants clearly carry their burden of proof as to each of the four prerequisites. Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). It is incumbent upon the movants to demonstrate all four factors, and the failure to demonstrate any one of the four is sufficient for the court to deny the issuance of an injunction. Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir.1989). Even if the movants successfully establish each of the four Canal prongs, the decision whether to grant or deny a preliminary injunction remains discretionary with the court. Mississippi Power & Light, 760 F.2d at 621. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Id.
1. Likelihood of Success on the Merits
The present suit seeks declaratory and injunctive relief for violation of numerous constitutional and statutory rights arising out of the Plaintiffs' individual and collective conditions of confinement. The Plaintiffs' allegations include: (1) idleness and isolation; (2) deprivation of basic sanitation and personal hygiene; (3) lack of adequate shelter from extreme heat, cold, rain, and vermin; (4) sleep deprivation; (5) denial of access to medical, mental health and dental care; (6) improper treatment of severely mentally ill inmates; and (7) denial of a functional administrative remedy program. In their motion for temporary restraining order and preliminary injunction, the Plaintiffs argue that Hansen's impending execution must be postponed because he is a material and irreplaceable witness in this action, and his execution will strip the remaining Plaintiffs of their right to present his testimony in support of their claims.
The court finds that the Plaintiffs' motion should be denied because the Plaintiffs cannot demonstrate the requisite likelihood of success on the merits of the Plaintiff Tracy Hansen's claims. See Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th Cir.2001) (holding that preliminary injunction may be denied based solely on movant's failure to demonstrate likelihood of success on the merits of his claims; other 808*808 Canal Authority factors need not be addressed in such a case).
In order to find that Hansen has demonstrated a substantial likelihood of success on the merits of his claims, the Plaintiffs must first demonstrate that Hansen has a right of action under 42 U.S.C. § 1983. The Fifth Circuit, however, recently foreclosed such relief. In Martinez v. The Texas Court of Criminal Appeals, 292 F.3d 417 (5th Cir.2002), cert. denied, ___ U.S. ___, 122 S.Ct. 1992, 152 L.Ed.2d 1046 (2002), a group of Texas death row inmates filed a Section 1983 lawsuit alleging that their rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution had been violated. The Plaintiffs in that case sought a temporary restraining order and preliminary injunction preventing the State of Texas from executing them during the pendency of their Section 1983 litigation. Martinez, 292 F.3d at 419-20. The Fifth Circuit held that the Plaintiffs' Section 1983 claims

were properly construed by the district court as requests for writs of habeas corpus under 28 U.S.C. § 2254. Id. at 423. The Fifth Circuit went on to hold that the district court's dismissal of the Plaintiffs' complaint was proper because, pursuant to 28 U.S.C. § 2254, federal district courts lack jurisdiction to consider second or successive habeas petitions unless the Fifth Circuit has granted the Plaintiffs express permission to file such a petition. Id.
Here, as in Martinez, the Plaintiffs' complaint should be construed as a petition for writ of habeas corpus, at least insofar as Tracy Hansen's claims are concerned. The Plaintiffs seek a temporary restraining order and preliminary injunction temporarily postponing Hansen's execution until he gives testimony in the present Section 1983 case; in Martinez, the Plaintiffs sought a temporary restraining order and preliminary injunction preventing the State of Texas from executing any of the Plaintiffs until their Section 1983 litigation had run its course. See Martinez, 292 F.3d at 419-20. Such requests are the functional equivalent of a request for a stay of execution. Id. at 423.
It is axiomatic that a petition for a writ of habeas corpus is the exclusive remedy for a prisoner seeking a stay of execution; federal courts lack jurisdiction to stay executions under Section 1983. Martinez, 292 F.3d at 423; Moody v. Rodriguez, 164 F.3d 893 (5th Cir.1999). Construing the Plaintiffs' request to stay Hansen's execution as a habeas claim, as it must in accordance with Martinez, the court finds that it is without jurisdiction to consider Hansen's claims because Hansen has already sought, and been denied, habeas relief through the federal courts; and the Fifth Circuit has not authorized Hansen to file a second or successive habeas petition. See 28 U.S.C. § 2244(b)(3)(A); Hansen v. Puckett, No. 1:96CV60-B-R; Hansen v. Armstrong, 277 F.3d 1372 (5th Cir.2001); Hansen v. Sparkman, ___ U.S. ___, 122 S.Ct. 2605, 153 L.Ed.2d 791 (2002).
Accordingly, the court finds that the Plaintiffs have not shown a substantial likelihood of success on the merits of Tracy Hansen's claims, and their motion for temporary restraining order and preliminary injunction seeking to stop Hansen's execution is therefore denied. In addition, Hansen's claims under 42 U.S.C. § 1983 are hereby dismissed.
2. Equitable Considerations
In addition to the grounds set forth above for the denial of the Plaintiffs' motion and the dismissal of Hansen's claims, the court finds that numerous equitable considerations, including the State of Mississippi's strong interest in proceeding with Hansen's execution, weigh against this court exercising its discretion in favor 809*809 of temporarily postponing the execution. See, e.g., Gomez v. United States District Court for the Northern District of California, 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992). Further, the court finds that the Plaintiffs' argument that Hansen is a crucial witness in this case is without merit. Over sixty prisoners are presently incarcerated on death row in Mississippi, and the Plaintiffs have not established that Hansen's testimony cannot be replaced by other inmates' testimony. In fact, the Plaintiffs state in their complaint that "[t]he claims of the named plaintiffs [including Tracy Hansen] are typical of those of the class." See Complaint at 19.

In any event, as has been previously noted, it is well established that "federal courts lack jurisdiction to stay executions under Section 1983." Moody, 164 F.3d at 893. Accordingly, the Plaintiffs' motion for temporary restraining order and preliminary injunction seeking to stop the execution of Tracy Hansen shall be denied, and Hansen's claims under 42 U.S.C. § 1983 shall be dismissed.
A separate order in accordance in this opinion shall issue this day.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION TO STOP EXECUTION
Pursuant to an opinion issued this day, it is hereby ORDERED that:
(1) the Plaintiffs' motion for temporary restraining order and for preliminary injunction (docket entries 2-1 and 2-2) is DENIED; and
(2) the Plaintiff Tracy Hansen's claims are DISMISSED.
All memoranda, depositions, declarations, and other materials considered by the court in ruling on this motion are hereby incorporated into and made a part of the record in this action.
[1] The Mississippi Supreme Court remanded the case to the Circuit Court of Harrison County for modification of sentence to reflect that Hansen would be executed by lethal injection rather than lethal gas. Hansen, 649 So.2d at 1258. The Circuit Court of Harrison County modified Hansen's sentence in accordance with the Mississippi Supreme Court's opinion and mandate on May 23, 1995.

 
 Russell v. Johnson
PC-MS-003-002 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

WILIIE RUSSELL, SHERWOOD BROWN, KELVIN JORDAN, JOHN NIXON, PAUL WOODWARD, and TRACY HANSEN, on their own behalf and on behalf of those similarly situated,

Plaintiffi, v.

Case No.

ROBERT L. JOHNSON, Commissioner, Mississippi Department of Correctbns, CHRISTOPHER EPPS, Deputy Commissioner, Mississippi Department of Correctbns, EMMITTL. SPARKMAN, Superintendent, Mississippi State Penitentiary, JESSIE STREETER, Warden, Area IV, Mississppi State Penitentiary, CAPTAIN LARRY HARRIS, Uni Administrator, Unit 32, Mississbpi State Penitentiary, inther official capacities,

Defendants.

COMPLAINT PRELIMINARY STATEMENT 1. The Plaintiffi, six Death Row prisoners in the custody of the Mississippi Department of Correctbns at Mississippi State Penitentiary in Paichman, Mississippi, bringthis suit under 42 U.S.C. § 1983, on their own behalf and on behalf of all those similarly situated, seeking a preliminary and permaneit injunction and declaratory relief, fcr vblatbn of their rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffi allege that Defendants knowingly

subject the Death Row prisoners to barbaric and hhumane conditions, which wantonfy hfiict unnecessary pain and constitute cruel and unusual punishment in vblatbn of the Eighth and Fourteenth Amendments to the Constitution of the Unied States. Plaintiffs also allege that the Defendants vblate their rights under the First and Fourteenth Amendments by arbitraruV curtaiiig their rights to communicate wih femily, fiends, bved ones, and bgal counsel, without legitimate correctional justification.
JURISDICTION AND VENUE 2. This actbn arses under 42 U.S.C. § 1983 to redress the deprivation under cobr of state law of rights, privileges, and immunities secured by the Constitution of the United States. The rghts sought to be redressed ate guaranteed by the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The Coirthas federal question jurisdbtbn over ftiis controversy under 28 U.S.C. §§ 1331 and 1343. 3. Venue B proper in the Northern District of Mississippi under 28 U.S.C. § 1391. The Plaintiffs are incarcerated there, some of the Defendants are employed there, and the acts complained of occurred there.
PARTIES 4. Plahtffi Willie RusseD, Tracy Hansen, Sherwood Brown, Kelvin Jordan, John Nixon, and Paul Woodward are Death Row inmates in the custody of the Mississippi Department of Corrections, who are incarcerated by tie Defendants in Uni 32 of Mississippi State Penitentiary. 5. Defendant Robert L. Johnson is the Commissbnerof ttie Mississippi Department of Coirectbns. 6. Defendant Christopher Epps is the Deputy Comirissbner of Coirectbns ofthe Mississippi Department of Coirectbns.

7. Defendart Errmitt L. Sparkman E the Supemtendert of Mississippi State Penitentiary. 8. Defendart Jessfe Streetsr is Area IV Warden ofMississippi State Penitentiary, over Unit 32. 9. Defendart Larry Harris is Unit Administrator of Unit 32, Mississippi State Penitentiary.
PRELIMINARY STATEMENT 10. The Pkirtiffi are prisoners confhed to Death Row. Defendants house Death Row prisoners h segregation cells inUni 32, a maximum-securityfeciHtyin Mississippi State Penitertiary. Defendants confine the Death Row prisoners adjacent and incbse proxrnity to severely menially il prisoners and to prisoners being punished with punitive segregation tor serious refactions of prison rubs. Death Row prisoners, even those whose institutional conduct would otherwise entitle them to trusty status, may spend many years in Unit 32 whfle their appeals are pending in the courts. 11. The condiions to which the Defendants knowingly and deliberately subject the Plahtifis — incladingprofound social isolation, unrelieved idleness and monotony, lack of exercise, intolerable stench and pervasive filth, grossly mallunctfaning plumbing, constant exposure to human excremert, dangerously high ambient cell temperatures and humidity, grossly hadequate ventilation, constant exposure to mosquitoes, gnats, horsefies, and other rtsects, deprivation ofbasic medical, dentaland mental health care, and constant exposure nght and day to the screams, ravings, and haluchations of severely mentally ill inmates in adjohhg cells ~ cause the Phintffe intense physical and emotional pain and suffering and are likely to cause serious mental ilness to emerge h previously healthy prisoners, psychosis, mank, and mental breakdown in bss healthy prisoners, and penmnert physical injury and illness, and to put the Plahtffi at high risk of premature death while they exercise their rghts of appeal of ther sentences.
CONDITIONS OF CONFINEMENT

Permanent enforced idleness and isolation 12. DeathRow hrmtes live h almost total isolation from other human bengs and in a state of perpetual forced idleness and monotony. They are bcked down 23 or 24 hours a day. Their cells are dimly li; reading writiig, and any kind of sustained and focused thought are internpted by the constant screams, moans, curses, animal noises, maniacal laughter, and halluchatory ravhgs, night and day, of severely mentally illprisoners in adjacent eels. 13. DeathRow hrmtes are alowed to exercise onfy four hours per week, in an outdoor cage scarcely larger than a eel, in which the onfy exercise possible is walking in small circles. Many Death Row himtes nust foiego the exercise pen during the heat of summer because the pens aie completely exposed to the sun, and inmates are not allowed water or a hat, nor are they entitled to shower when theyreturn from exercise. During cold weather, inmates often mist forego the exercise pen because their cbthhgis inadequate, and by MDOC policy theyha\e no shoes, onfy plastic thong-type shower sandals. The lack of exercise available to DeathRow prisoners who spend yeais is isolation compounds mental health problems as welas hypertension, diabetes, heart disease, and other chronic illnesses. 14. Visits wih femiry are limited to a one-hour no-contact visit through glass, twfce a month, and only on week days, making it difficult if not impossible for working famify members and femiy members at a distance to visit, particularly because Parchman is bcated in an isolated part of the Delta, to which access by public transportation is costly and linked. Telephone calls wih femiry are prohbitivefy expensive for most inmates since MDOC imposes charges fir hgher than the charges for equivalent collect calls h the community. Once a call is placed, MDOC telephone service repeatedly cuts the connection.

15. Prison nibs, policies and practices severely curtai Death Row prisoners' rght to correspond with fimify, friends, bved ones, supporters, and legal counsel. Prison nies prohbit Death Row hmates from purchasing more than twenty stanps per week, and prison staff puiish Death Row hmates tor even minor rub infractions with bss of the privilege of purchasing postage. Mail to Death Row hmates is routinely mi-delivered or returned to the sender for compbtely arbitrary reasons or for no discernible reason 16. DeathRow hmates have no access whatsoever to educational or vocatbnal programs, prison jobs, or mental health counseling or even access to such solitary pastimes as phyhg cards or hobby crafis. 17. Death Row prisoners ha\e no access to any sort of reKgbus servbes or fellowship. Every other week, a prison chaplah or wlunteer passes through the tiers and passes out tracts, but spends no more than five minutes, if that, with hmates seeking religious counseling 18. Without legitimate penologbal justification, Defendants hinder communbations between Death Row hmates and their counsel. Accommodations fcr legal visits are so inadequate that visits from counsel who must travel many hours to Parcbman to visit Death Row clients are often truncated; fegal visits are permitted only in an area which makes it difficult or impossible for Death Row prisoners to communicate confidentially with their counsel; and legal tebphone calls are arbitrarily curtailed. 19. The profound and long-term isolation, idbness, and monotony of the hmates' lives cause severe deterioration of their mental healh. Prison staff and administrators farther htensify ths isolation and monotony by punishing even the slightest rub infection wih permanent confiscation of inmates' radbs, televisions, and typewriters, and wih bss of the privilege of purchasing postage. Such puushments cbse off the prisoners' on^ rerminhg contacts wih the outside world and the onfy means bftto them

for mitigating their profound isolation. Deprivation of basic sanitation and personal hygiene
20. Defendants expose the Death Row inmates to grossly unsanitary living condiions, depriving them of flie means to maintain base personal hygiene and human dignity, and contributhgto mental illness. The plumbing is dysfunctional throughout Uni 32: almost every cell has a "ping-pong" toifet, which, when flushed, pushes excrement and waste into the bowl in the adjohhgcell The celb, halways and showers are chronically filthy. An owrwhekningty strong stench pervades the Unit, some of it fromflthon the tier, some of it fom a cesspool adjacent to the Uni, some of it from the defecti\e plumbing and phg-pong toilets, some of it caused by flooding which drenches inmates' cells and soaks their mattresses and beddhgwithfilthywater that is allowed to stand for days at a time. Severe^ mentally ill inmates throw food and excrement on the floor of their cells and the halways, which prison staff alow to decompose for days or even weeks. Correctfanal staff alow severe^ mentally il palierts to go without showers and to leave flier toilets unflushed for weeks at a time, subjecting all other inrmtes to the stench. 21. The Uni is never dishfected or given any kind of meaningful cleaning The showers and hals are filthy; correctional staff do not supervise the inmates assigned to clean them. Staff provide inmates with cleanhg supples to cban flier cells onty about twee a month, but e\en (hen provides onfy filthy water (the same bucket ofwaterfor26 cells) and onfy one bottle ofdisinfectart to cban the toilets for several tiers. 22. Death Row inmates are served uncfean food. The carts where food trays are stacked are filthy; the trays on wheh the food is served are cracked and encrusted wifli the residue from other inmates' previous meals. If food arrives when flie sewagp is backing up, correctional staff simply roll the food

carts through the raw sewags. In some cells, inmates cannot eat a meal without flhgirg away roaches, and cannot set down flier food trays without roaches swarming over them. 23. The air in Uni 32 is dank. Water pours into the cells from the outside when i rahs, and ffom celt above when mentalyil hastes flood their toilets, a frequent occurrence. When this occurs, inmates' beds and cbthhgincelb below are soaked with fcul water and waste. There are no drahs h the floor, and the inmates are not given supples to cban up the waste water, so they mist remain h fcul standing water for prolonged periods, and must live with their filthy soaked bedding and clothhg until the next laundry day. Even when beddhgand cbthing is sent to the laundry, it comes back stained, damp, and foul-smelling Death Row hmates are not provided a change of sheets or bedding when their bedding is at the laundry, they must sleep on a bare dirty plastb mattress. 24. Death Row hmates are routhefy denied access to showers fcr 4 or even 5 consecutive days every week, even in summer months. The showers are sofilthythat some hmates cannot bear to use them, even for the opportunity of bavhg their cells or cooling down in Ihe summer. 25. Not inffequentfy, the sewag3 system breaks down entirety. Beghning on June 23,2002, there was no water h Uni 32 for six or seven days. Inmates were not able to wash or flush their toilets and sewage backed up into al of the eels. The air was intobrably hurrid and foul. Despite the punishing heat in the cells, prison staff allowed hmates only a six-ounce cup ofwater with each meaL
Lack of Adequate Shelter From Extreme Heat, Cold, Rain, and Vermin 26. The eels h Unit 32 where the Death Row inmates are housed provide inadequate shelter. In wet weather rain floods many of the cells, and in feezing weather the cells are very cold. From May to October, when the air temperature at Parchman routinely exceeds 90 degrees Fahrenheit for days at a time, often accompanbd by extremely high humidity, the ceDs where Plaintiffs are confned for 23 or 24

hours a day become dangerously hot and airless. 27. Ventilation fa the cells is grossly inadequate. Fans in Ihe hallways provide little or no vertilatbn to the eels. The most fortunate of the Death Row inmates have a small electric faninther cells, purchased from the canteen, but others cannot afford a fan, and still others have had their fens permanently confiscated for rules infractions ~ including exceedfagly rrinor fafractbns. Those famates who do have fens find that the fens are useless in the hottest weather. 28. From May through September, Unit 32 swarms with clouds ofmosquioes, gnats, horsefies, and many other kinds of fasects whch breed in the cesspool outside the Uni, and harass the famates every moment of the day and night, hi many cells, swarms of beetles, mosquitoes and other insects cover the inmates' bodies and the famates' food and water. The mosquito and fasect infestation is so severe that inmates are forced to cbse their window and cover themselves up as much as possible with cbthes and bedding despite the sweltering heat 29. Even with cell temperatures routinely reaching well above 90 degrees Fahrenheit durfag the summer months, the prisoners are permitted to shower only three tines per week and are routine^ denied access to showers for 4 or even 5 consecuti\e days. In their desperation to find relief from the intense heat, some prisoners use the toilet bowel for drinkfag water and to wet down ther bodies. 30. Conditions such as these, wheh subject the prisoners to probnged exposure to high ambient temperatures and humidity, pose a life-threatening health risk as well as a significant risk to the prisoners' mental health. Heat-related illnesses serious^ exacerbate respiratory, circulatory, and many other chronic ilresses. Sleep deprivation, resulting from prolonged exposure to high terrperatures, compounds other emotional stressors that bad to mental breakdown Heat siroke is a Kfe-threatening emergency and, unless promptly and energetically treated, can result h convulsbns, renal faiure,

circulatory collapse, and permanent brain damage. 31. The primary risk factors for heatstroke during heat waves inciide probnged stay in non-air-condibned places; age (the risk increases with age); and a number of interactive medical conditions and medications. These conditions and medications cause hyperthermia, heatstroke or heat death by incapacitatiig a person's ability to control bodytenperature during periods of high ambient temperatures. Among the many medical condiions that diminish the body's ability to regukte its temperature are hyperihyrokiism, heart disease, kidney disease, vascular insufficiency, obesity and mental illness. Among the many medications that impede the body' s ability to adjust to high ambient temperatures are most psychiatric medications, many anti-hypertensive medications, diuretics, antihistamirES, and several heart medications. 32. All ofthe Plaintiffs have one or more of these high-risk characteristics; many ofthe prisoners have multiple hgh-risk characteristics for heat-stroke and are at acuate risk.
Noise Level and Sleep Deprivation 33. Death Row inmates are chronical^ sleep- deprived. They are exposed night and day to the pandemoniim created by serbusfy mentalyil hmates, who express their suffering and halicinatbns h ceaseless raving, screaming, curshg, animal noises, moans, and shrieks; during the summer months, the Death Row inmates are exposed around the cbck to intense heat and humidity, hck of ventilation, and lack of protection from mosquitoes; during fieezhg weather, they have inadequate bedding when it rains, water pours onto ther beds, especially h PhintffWillie Russell's "punishment e e l " The hmates sleep fitfuhy when they fall unconscious from exhaustion. Sleep deprivation results in cognitive problems, memory deficits, confusbn, and anxiety, and htensifbs psychiatric symptoms.
Access to Medical, Mental Health and Dental Care

34. Inmates with serbus medical, mertal health and dental needs have grossly inadequate access to care. Correctbnaland medical staff routine^ ignore requests for urgert, dangerous and extremely painfil medical, dental and mental health problems of Death Row hmates, for weeks at a tine. A nurse waks through the tier each day, but never carries any equpment to check vital signs and if an inmate has a medical complaint the nurse merely says to fil out a sick-call slip. Usually inmates must submit several foims before actually going to die health services, and they seldom receive rreanhgfii care. Mertal health treatment is nonexistent except for prescriptbn of medications; no counseling of any kind is provided.
Abuse of severely mentally ill inmates 35. A number oftheDeathRow hmates, as well as other inmates housed h Uni 32, are severely menially E Inmates who corns to Death Row fa relative^ soind mental health are at high risk of devebpingserbus menial illness as a result of the near-total isolatbn, idleness and barbarous conditbns on Uni 32; those who come to Unit 32 with serbus mertal ihess are at high risk of being reduced to psychosis, mania, or compulsive acts of self-abuse. Correctional staff taurt and abuse se\erely menially ill inmates and negject their basic human needs, allowing them to go without showers for months at a t h e , and without food fcr days at a time.
Nonfunctional Administrative Remedy Program 36. Prisoners' efforts to seek administrative redress through the Administrative Remedy Program (ARP) are gnored, and the ARP is barefy iinctbnal There is a huge backbg of RARs (Request for Administrative Remedies), yet prison officials process no more than one RAR at a time. Although i is supposed to take no more than 90 days to complete on RAR, i common^ takes a year. Prison officials routine^ ignore the RAR for several months or bnger; or, once the process beghs, they simply ignore

the time periods required by the ARP guidelines for their responses. An 'Emergency Request" is supposed to be processed immediately when a delay night compromise an investigation or when a person will suffer ongoing, adverse conditions. However, regardless of the urgency of the request and the need for an emergency rerredy, prison officials backlog emergency requests and take years to process Ihem
WILLIE RUSSELL 37. PlahtffWillie Russell has been on Death Row for more than 11 years and has been confined for two years to Cel225, one offotr "punishment" cells. He is bcked down 23 or 24 houis a day. His eel is strpped bare. He exists fa aknost total isolation torn other human behgs and in a state of perpetual forced idleness. He is allowed one hour of exercise, four times a week, fa an outdoor pen scarce^ larger than his cell where the onfy exercise possfole is waking in small circles. His tefevsbn and radio were permanently conffceated two years ago, under a forfeiture polcy that was implemented only after the rule violation with which he was charged. He is not allowed stamps so he cannot write letters to fenfly, fiends, or supporters. The metalbarred door of Hs eel has been overlaid wih a solid Plexghs door, which plinges him into nearly total and permanent isolation; he cannot tak with anyone or hear what aryone is saying outside hs e e l Almost the onty voices to reach him are those of severely mentally 11 prisoners in nearby cells, who create a pandemoniimof screams and ravfag day and night. He is not allowed any phone cals wih fiends orfemiry.His onty activities are reading and sleeping A dim light bums fa Mr. Russell's room 24 hours a day, the light is so low that he must strain his eyes to read, and at nght it disturbs his sleep. Every day he stains to read books until he fells asleep, because he cannot communicate with anyone. 38. The heat duringthe summer fa Mr. Russel's special "punishment"' cell is partcuhrfy unbeatable.

The Ptexjghs door cbses off cross-vertilation and holds heat in the cell, creathg a hot-box. The onfy provision for "vertilation" is a series of tiny hobs the diameter of a pencil drilled into the Plexgks door near the ceiling. MDOC officials permanently confiscated his fan two years ago. The window in his cell, a western exposure, only makes it hotter since the sun shines directly onto his bed during the afternoon and be is forbidden to hang a towel over the window as a shade. He often lies down on the concrete floor close to the door seeking relief from the heat but is subject to discphne for tying on the fbor. During the summer, k is often diffcul for Mr. Russell to breathe. When he manages to doze off, he awakes drenched in sweat. 39. Mosquitoes and many other insects pour into Mr. Russell's eel through the broken window frame. During the summer months, Ihe hsect infestation B SO intolerable that he is forced to keep his window cbsed despite the intense heat. Even with Ihe window closed, insects swarm around his face and body. Because he cannot turn off the light in his cell, the insects are especially drawn to it. The onty defense he has against the insects is to cover himself with a sheet, no matter how intense the heat; for nearly two years, however, unti recently, he was denied a sheet, and even a mattress or pillows or any kind of normal bedding and slept on a concrete skb with a singte blanket 40. Inmates who aie being held in Uni 32 for disciplinary reasons are housed on the floor above Mr. Russell; they ofien flood ther toilets when they want to get the guards' attention and the water floods down the walls into Mr. Russell's eel He has no way to get rid of the standing water. When i rains, water pours down the wals of Mr. Russell's cell, soaks his bed and collects on the floor. Because of the constant dampness in his cell, there is a smell of sour mildew and mold. Mr. Russell's cell is always dirty. He cannot use hs own soap to clean Ihe eel because he gets onfy one bar a week which hsts only through three five-minute showers.

41. The window h Mr. Russell's eel does not completely cbse, so that in feezing weather cold air fbws onto his bed . 42. Mr. Russell is taking Remeron for depression and anxiety and Neurontin fer seizure disorder. At times his body shakes uncontrollably. His medication puts him at high risk for heat siroke during hot weather. Eating causes hin pain; he is nauseated most of time and i is becoming increasingly difficult for hin to swallow food or even water. MDOC has not provided testing and treatrrentor medication for pain for this condition.
JOHN NIXON 43. Plaintiff John Nixon is 74 years old. He has asthma and emphysema. In the summer, the temperature in his cell becomes unbearably hot and he has great difficulty breathing He is without a fen and as the vertilation system is broken no ar circulates through bis eel MDOC rules forbid hin from placing a towelover his whdow to deflect the heat. He has to keep flie window in his eel cbsed; when i is open, mosquioes and gnats swarm in and hover around his eyes and nose and ciawlinto his ears. During cold winter weather, he is always cold since prison offbials took away Death Row inmates' shoes, most of their clothes, and most ofther bedding. Mr. Nixon is sickened by the waste from neighboring cellsflushinginto toe toibt in his eel 44. Mr. Nixon has been suffering from a severe oozhg rash on his arms and legs fer over seven years. When he asked doctor for help, saying, 'Please help me, doctor, this rash is killing me," the doctor laughed and said, "Well John, thats what they sent you down here for, isn't i?" 45. Mr. Nixon B very weak and has difficulty walking. He has chronic problems win Hs feet and has a prescription for special shoes, but has not been alowed to wear them since MDOC prohibited all Death Row hrrates ffomwearhg shoes. Therefore he leaves his bunk onty to eat and to shower.

46. Mr. Nixon used to go outside to the exercise pen when permitted, but six years ago when he was out on the yard during winter i started rainirg, and the guards kept him bcked there for two hours in a storm He fears that if the same thing happened again, he would not survive t. 47. Mr. Nixon spends h i days in aknost complete idleness and isolation. He used to read, but after years h the dimlght of his cell, it is becoming increasingly difficult for hin to see. His eyesght also makes writing diffbult. He leaves his cell a total of 30 minutes a week in order to shower. The showers are filthy and he does not like to use them, but does so in order to break the otherwise completely unrelieved monotony of his days. 48. Mr. Nixon witnessed Mr. C., another long-time Death Row inmate, turn from an intelligent, respectfilman with gpod bearing when he arrived at Death Row to a man possessed, who screams and pkys in his own exciement
TRACY HAN SEN 49. PlahtffTracyHansen has been on Death Row shce 1987. Inthattimehehas suffered intense, of en ongoing pah, and near rrental collapse. He has asthma and respiratory problems, which are aggravated by the extreme heat, humidity and lack of \entilatbn h the cells durhgthe summer months; he has great difficulty breathing during the hot weather but is not permitted to have a fan. He suffers from extreme anxiety, for which he takes psychiatric medications. Prison staff frequency withhold his prescription medications from hin. Over the years, he has been forced to go without his psychiatric medication for bng periods of time whenever the guards decide to punish him for complaining about condibns on the Unit. On other occasbns, ftie guards have beaten him for complaining about his medicatbns. 50. Mr. Hansen has over a perbd of years repeatedly requested, to no avai, to have a doctor

examine a growth on his back. He has had many serious derial problems for which he has been denied timely and appropriate treatment; in al cases, he has had to wait many months to see a dentist even when fa extreme pain. 51. Mr. Hansen's television, radio and typewriter were confiscated over a year ago. The lack of activity and mental stimuhtbn serbusry affects Mr. Hansen's state of mind, as does the pandemoniim created by severely mentally illinmates in nearby cells 52. Mr. Hansen has repeatedly attempted over the years to seek redress concerning al the condibns alleged fa this Complaint through MDOC's Adninistrative Remedy Program, to no aval He presently has an active RAR regarding being denied recreatbn that is over 3 years old. He has had an "Emergency Request," regardfag deprivation of his prescribed medications, pending for 3 years when i was finaly processed. When Mr. Hansen complained that water was flooding fom the ceiling into his cell on a constant basis, the First Step Response came back as, "there B no flooding in your cell" When he filed h i appeal saying that the response to his RAR was incorrect, no member of the ARP checked to see what the true situation was in his cell Years later, nothing has been done. Mr. Hansen's most recent appeal was of a disciplinary convctbn. His appeal was returned to him unprocessed. He was told that because he had 10 RARs pending, they woiid not process his request for an appeal
SHERWOOD BROWN 53. Plafatff Sherwood Brownhas been on Death Row for nine years. He has highblood pressure, a heart condition, and severe migraines. He takes mediations for all of these conditions. These medical condibns, and the medications he takes to cortrolthem, put him at high risk for heat-related illness and serbus physicalinjury. Although he has ahistoryof good institutbnalbehavior, MDOC

confiscated his fen, radio, television and typewriter for wearing an earring. KELVIN JORDAN
54. Kelvii Jordan has been on Death Row fcr nearly six years. He has seen inmates deteriorate mentally and lose their sanity on Death Row, and he trbs to maintain his own but on some days is too depressed to get out of bed. Mr. Jordan has no radio because the carteendoes not sell them, and has no tebvision because he cannot affoid one. He Ices writing letters but no bnger does so since he is barred ffom buying stamps as punishment for participating in Ihe January 2002 hunger strike. 55. Mr. Jordan has chronb severe headaches. The constant screaming and slammrig of trays by the seriously mental^ illinmates triggers his headaches. He also has a chronic rash. The extreme heat inhis cell also triggers his migraine headaches, and occasionally causes him to get dizzy and black out. He seldom sees a doctor because it takes several days or weeks to get an appointment, inmates are charged fcr every clinb visit, and the doctors seldom provide any treatment
PAUL WOODWARD 56. Paul Woodward has been on Death Row for eleven years and five months. He is obese and has high bbod pressure, respiratory problems, and poor circulation; his feet and ankles are constantly swollen and painfii He takes cbnidire, aspirin, zaroxo^n, and zestri Mr. Wodward's medical conditions and medications put hin at great risk for heat stroke during the hot weather. He routine^ experiences delays of a week or bnger inreceivingrefills of his prescription rredkatbns, even though he submits sick call foims and pleads wih the nurse on rounds fcr assistance. When his medicatbn lapses, he feels hB chest tghten, and he Kves in constant fear that he is about to have a heart attack. 57. Although Ihe walls in his eel radiate the heat like a sto\e, Mr. Woodward camot keep his window openbecause mesh saeenon the window B too large, and bts in cbuds ofmosquioes, and

tiny black insects that crawl all over his skin. Even with Ihe window closed, mosquitoes enter his cell; during the summer he spends muchof toe dayswattingat the swarming mosquioes. 58. Mr. Woodward's chronic medical conditions make it difficult for him to breathe, and these conditions are severefy exacerbated by Ihe poorvertilatbn and flthin Uni 32. In late June 2002 he had a severe asthma attack. He was not seen by a doctor. 59. Since MDOC confiscated all Death Row inmates' shoes and made them wear "dp-flops" (plastic thong-sandals), Mr. Woodward's circulatory problems hare worsened. The plastic sandab cutoffhis circulation, his feet and toes have turned purpb and numb, he can scarcely walk, and the pain is excruciating. When he has to walk, blood blisters form on his feet along the sides of the plastic thongs. He has had a lesfon on his buttocks for years for which he has received no treatment 60.
The showers are so fittiy that Mr. Woodward has stopped using them He bathes h the sink in his cell There is a ping-pong toilet in his celt when he flushes the toibt, the waste ends up in the bowl of ihe neighboring inmate's eel, and vice versa. 61. Mr. Woodward spends all his time watching television as there is notfihg else to do and he feels it is the onfy way he can hope to maintain his sanity. Mr. Woodward has witnessed the mental deterioration of an inmate on Death Row: Ten years ago, Mr. Woodward found Mr. C. to be a courteous, likeable, quiet and cbanperson, who talked of hisfemflyand his hometown; now, Mr. C. screams constartly, neither bathes nor flushes the toilet, throws his feces everywhere, and looks, smells, and acts ike a frightened aninaL
General Factual Allegations 62. The conditbns described in this Complaint result in gratuitous pain and suffering and pose an irrmiient dan^r of serious physical and mental ilness, injury, or death to Plahtiffc.

63. In imposing the conditions described in this Complaint, Defendants have acted with deliberate indifference to plaintifls' serious medical, health, and safety needs, and to the risk that plaintiffs will suffer serious illness, injury, or death. The conditions described herein are not reasonably related to legitimate penological objectives. 64. The conditions descried in this Complaint are likely to persist unless enjoined by this Court.
Exhaustion of Administrative Remedies 65. The Plairtiffs have exhausted alladmiiistrati\e remedies available to them on the matters alleged above. The Pkintiffi, through counsel, submitted a request tor an administrative remedy on January 31, 2002, and pursued the request through discussions and correspondence with Commissioner Johnson on February 13, 2002, February21, 2002, March8, 2002, March 12, 2002, April 1, 2002, April 15, 2002, June 7, 2002, and June 14, 2002. Administratne remedies were exhausted on or before June 14, 2002, which was more than ninety days after the orighalrequest.
CLASS ACTION FACTS 66. PlaintifS bringthis action on behalf of themselves and all others similarly situated, pursuant to Fed. R. Civ. P. 23(a) and (b)(2). 67. Plaintiffs seek to represent a class consisting of all Death Row prisoners who are now, or will h the future be, confned at Mississippi State Penitentiary in Parchrmn, Mississippi 68. There are currertlyapproximately 65 Death Row prisoners confned at Uni 32. The members of tfie class are too nimerous, and the membership of flie chss too fluid, to permit johder of all members. Common questions of law and fact exist as to all chss members. All class members are equally subject to the unconstitutional and unlawful conditions described in this Comphirt. These common questions hchde, but are not limited to, whether conditions of confinement for Death Row

prisoners at Parchman violate the Fiist, Eighth, and Fourteenth Amendmenis to the United States Constitution; and whether the systemieally hadequate medical, mental health, and dental care provided to the Death Row inmates violates the Eghth and Fourteenth Amendments to the United States Constitution. 69. The clams of the named plahtiffi are typical of those of the class. 70. Plaintiffi wil flirty and adequately represent the hterests of the class. The interests of plairtiffs are consistent with those of the class, and they are represeiied by counsel who are experienced in class actbn, civi rights, and prison conditions itigation. 71. Defendarts have acted and refused to act on grounds generally appfcabfe to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole
CAUSES OF ACTION 72. By subjecting Plaintiffs to the conditions of confinement set fcrth herein, with full knowledge of those conditions, defendants have acted, and conthue to act, with delberate indifference to pkiriiffs' serious health and safety needs, and have violated their rights under the Eighth and Fourteenth Amendments to the United States Constitution. 73. By subjecting Phiriiffs to the systemieally inadequate medical, mental health, and dental care described hereh, Defendants have acted, and contirue to act, with deliberate indifference to phirtiffs' serious medical needs, and have violated their rights under the Eighth and Fourteenth Amendments to the United States Constitution. 74. By arbitrarily, capriciously, and without any bgitirmte penological justification subjecting the Plahtiffs to extreme abridgements of their right to comrnurieate wih fimiry, fiends, and legal counsel, Defendants have vblated the Plaintiffs' rights under the First and Fourteenth Amendments to the

United Stales Constitution. PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectful^ request that the Court: 1. Issue a judgment declaring that the actions of defendants described herein are unlawful and viohte plaintiffs' rights under the Constitution and laws of the Unied States; 2. Prelmhariy and permanently enjoin defendants, their subordinates, agents, employees, and all others acting in concert with them, from subjecting plaintiffs to the conditions set forth in this Complaint; 3. Grant plaintiffs their reasonable attomeyfees and costs pursuantto 42 U.S.C. § 1988 and other applicable law; and 4. Grant such oflier relief as the Court considers just and proper.

JULY 12, 2002 WILLIE RUSSELL, TRACY HANSEN, SHERWOOD BROWN, KELVIN JORDAN, JOHN NIXON, and PAUL WOODWARD, Phintifi.
BY: Robert McDuff MS Bar No. 2532 767 N. Congress Street Jackson, MS 39202 (601)969-0802 (602) 969-0804 (fax)
Margaret Winter AmyFettig THE NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 733 15th Street, N.W., Suite 620 Washingon, D.C. 20005 (202) 393-4930 (202) 393-4931 (fax)
Stepten P. Hanbn HOLLAND & KNIGHT LLP P.O. Drawer 810 Tallahassee 32302-0810 (202)955-3000 extension 35610 (850) 222-8185 (fax)
SandiFarreH MS Bar No. 100452 ACLU of Mississippi P.O. Box 2242 Jackson, MS 39225-2242 (601)355-6464 (601)355-6465

 
 Page 1 of 16

U.S. District Court Northern District of Mississippi (Eastern Division) CIVIL DOCKET FOR CASE #: 1:02-cv-00261-JAD

CLOSED

Russell, et al v. Johnson, et al Assigned to: Jerry A. Davis Demand: $0 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Willie nmi Russell on his own behalf and on behalf of those similarly situated

Date Filed: 07/12/2002 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Gouri Bhat AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC. National Prison Project 915 15th Street, NW, Seventh Floor Washington, DC 20005 202-393-4930 Email: gbhat@npp-aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Esme Bashwiner HOLLAND & KNIGHT, LLP 10 St. James Avenue Boston, MA 02116 (617) 523-2700 TERMINATED: 05/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Winter AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Prison Project 733 15th Street NW Suite 620 Washington, DC 20005 (202) 393-4930 Email: mwinter@npp-aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff ROBERT B. MCDUFF, ATTORNEY 767 North Congress Street Jackson, MS 39202 (601) 969-0802

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Plaintiff
Sherwood Brown on his own behalf and on behalf of those similarly situated

Page 2 of 16
Email: rbm@mcdufflaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell ACLU OF MISSISSIPPI P.O. Box 2242 Jackson, MS 39225-2242 (601) 355-6464 TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen P. Hanlon HOLLAND & KNIGHT, LLP 2099 Pennsylvania Ave., NW Suite 100 Washington, DC 20006-6801 (101) 828-1871 Email: shanlon@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Esme Bashwiner (See above for address) TERMINATED: 05/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Page 3 of 16

Plaintiff Kevin Jordan on his own behalf and on behalf of those similarly situated
Plaintiff John Nixon on his own behalf and on behalf of those similarly situated

Stephen P. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Esme Bashwiner (See above for address) TERMINATED: 05/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen P. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Esme Bashwiner (See above for address) TERMINATED: 05/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Page 4 of 16

Plaintiff
Paul Woodward on his own behalf and on behalf of those similarly situated

Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen P. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gouri Bhat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Esme Bashwiner (See above for address) TERMINATED: 05/15/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell (See above for address) TERMINATED: 07/01/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Page 5 of 16

Plaintiff Tracy nmi Hansen on his own behalf and on behalf of those similarly situated TERMINATED: 07/15/2002
Plaintiff Richard G. Jordan
V. Defendant Robert L. Johnson Commissioner, Mississippi Department of Corrections, in his official capacity

Stephen P. Hanlon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Winter (See above for address) TERMINATED: 07/15/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert B. McDuff (See above for address) TERMINATED: 07/15/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Farrell (See above for address) TERMINATED: 07/15/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen P. Hanlon (See above for address) TERMINATED: 07/15/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard G. Jordan 30990 Unit 32-C Parchman, MS 38738 PRO SE
represented by John L. Clay MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 Jackson, MS 39205-0220 (601) 359-3680 Email: jclay@ago.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Page 6 of 16

Defendant Christopher Epps Deputy Commissioner, Mississippi Department of Corrections; in his official capacity
Defendant Supt. Emmitt L. Sparkman Superintendent, Mississippi State Penitentiary; in his official capacity

Marvin L. White, Jr. MISSISSIPPI ATTORNEY GENERAL'S OFFICE P. O. Box 220 Jackson, MS 39205-0220 (601) 359-3680 Email: swhit@ago.state.ms.us TERMINATED: 05/16/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Charlton Vincent MISSISSIPPI DEPARTMENT OF CORRECTIONS P O Box 38 Parchman, MS 38738 (662) 745-6611 Email: lvincent@mdoc.state.ms.us ATTORNEY TO BE NOTICED
represented by John L. Clay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin L. White, Jr. (See above for address) TERMINATED: 05/16/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Charlton Vincent (See above for address) ATTORNEY TO BE NOTICED
represented by John L. Clay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin L. White, Jr. (See above for address) TERMINATED: 05/16/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Charlton Vincent

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Page 7 of 16

Defendant Jessie Streeter Warden, Area IV, Mississippi State Penitentiary; in his official capacity
Defendant Captain Larry Harris Unit Administrator, Unit 32, Mississippi State Penitentiary; in his official capacity

(See above for address) ATTORNEY TO BE NOTICED
represented by John L. Clay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin L. White, Jr. (See above for address) TERMINATED: 05/16/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Charlton Vincent (See above for address) ATTORNEY TO BE NOTICED
represented by John L. Clay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvin L. White, Jr. (See above for address) TERMINATED: 05/16/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leonard Charlton Vincent (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/12/2002
07/12/2002 07/12/2002 07/12/2002

#

Docket Text

2 MOTION by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward, Tracy nmi Hansen for Temporary Restraining Order , for Preliminary Injunction to stop execution pending presentation of the testimony of Tracy Hansen in this case (jla)

SUMMONS(ES) issued for Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (jla)

NOTICE OF ASSIGNMENT Chief Judge Glen H. Davidson and Magistrate Judge Jerry A. Davis (jla)

1 PRISONER COMPLAINT challenging conditions of confinement FILING FEE $ 150.00 CASE REFERRED ; Case Assigned to CJRA

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07/15/2002 07/15/2002
07/16/2002
07/17/2002 07/18/2002 07/18/2002
07/18/2002 07/18/2002 07/18/2002 07/18/2002 07/24/2002 07/25/2002

Page 8 of 16
Track: Administrative (dlh) (Entered: 07/18/2002)
3 MEMORANDUM OPINION ( signed by Chief Judge Glen H. Davidson on 7/15/02) (jla)
4 ORDER denying [2-1] motion for Temporary Restraining Order, denying [2-2] motion for Preliminary Injunction to stop execution pending presentation of the testimony of Tracy Hansen in this case; plaintiff Tracy Hansen's claims are dismissed (signed by Chief Judge Glen H. Davidson on 7/15/02) COB # 54 pg. 235 Date of Entry: 7/15/02 (jla)
5 RESPONSE by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris in opposition to [2-1] motion for Temporary Restraining Order by plaintiffs, [2-2] motion for Preliminary Injunction to stop execution pending presentation of the testimony of Tracy Hansen in this case by plaintiffs (dlh)
11 ORDER of Supreme Court denying application of Tracy A. Hansen for stay of execution of sentence of death and denying writ of certiorari (presented to Justice Scalia on 7/17/02) Date of Entry: 7/17/02 (mhg) (Entered: 07/19/2002)
6 MOTION by Willie Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward for Temporary Restraining Order , for Preliminary Injunction allowing plaintiffs' counsel and experts to tour Death Row on 8/8/02 (dlh)
7 AFFIDAVIT of Margaret Winter Re: [6-1] motion for Temporary Restraining Order by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell, [6-2] motion for Preliminary Injunction allowing plaintiffs' counsel and experts to tour Death Row on 8/8/02 by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell (dlh)
8 MOTION by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward to Certify Class (dlh)
9 MOTION for Margaret Winter to Appear Pro Hac Vice [9-1] motion referred to Magistrate Judge Jerry A. Davis (dlh) Modified on 07/19/2002
10 ORDER transferring cause to be incorporated in Gates v. Collier class action; this cause is transferred to Mag Judge Davis for all purposes ( signed by Chief Judge Glen H. Davidson on 7/18/02) (dlh)
NOTICE OF ASSIGNMENT Magistrate Judge Jerry A. Davis (dlh)
12 SUMMONS Returned Executed as to Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris 7/12/02 Answer due on 8/1/02 for Larry Harris, for Jessie Streeter, for Emmitt L. Sparkman, for Christopher Epps, for Robert L. Johnson (dlh)
Pro Hac Vice Fee Paid by attorney Margaret Winter ; Amount $ 25.00 Receipt # 67908 (dlh)

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08/05/2002 08/15/2002 08/19/2002
08/22/2002 08/23/2002 08/28/2002 09/06/2002
09/06/2002 09/16/2002 09/20/2002 09/20/2002
09/26/2002
10/03/2002 10/03/2002

Page 9 of 16
13 MOTION by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to Extend Time to answer (dlh)
14 ANSWER to Complaint by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (Attorney John L. Clay), (jla)
15 ORDER granting [13-1] motion to Extend Time to answer, set Answer deadline to 8/22/02 for Larry Harris, for Jessie Streeter, for Emmitt L. Sparkman, for Christopher Epps, for Robert L. Johnson ( signed by Magistrate Judge Jerry A. Davis on 8/19/02) Date of Entry: 8/19/02 (jla)
16 MOTION for Stephen F. Hanlon to Appear Pro Hac Vice, Admission Fee: Amount $ 25 Receipt # 67976 (jla)
17 MOTION by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to Dismiss for failure to exhaust available administrative remedies (jla)
18 ORDER granting [16-1] motion for Stephen F. Hanlon to Appear Pro Hac Vice ( signed by Magistrate Judge Jerry A. Davis on 8/28/02) Date of Entry: 8/28/02 (dlh)
19 RESPONSE by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward to [17-1] motion to Dismiss for failure to exhaust available administrative remedies by Larry Harris, Jessie Streeter, Emmitt L. Sparkman, Christopher Epps, Robert L. Johnson (jla)
20 MOTION by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward for status conference and expedited trial (jla)
21 MOTION by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to Extend Time to respond to motion for expedited trial (jla)
22 MOTION by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to Extend Time to designate expert witnesses (jla)
23 RESPONSE by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to [20-1] motion for status conference and expedited trial by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell (jla)
24 NOTICE OF SERVICE of designation of expert witnesses by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris to Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward (jla)
Status Conference reset at 10:00 10/22/02 before Magistrate Judge Jerry A. Davis (dlh)
25 ORDER denying as moot [22-1] motion to Extend Time to designate expert witnesses ( signed by Magistrate Judge Jerry A. Davis on 10/3/02) Date of Entry: 10/3/02 (dlh)

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10/25/2002
10/25/2002 10/25/2002 11/18/2002 11/25/2002 12/02/2002 01/09/2003
01/10/2003
01/14/2003

Page 10 of 16
26 ORDER, set Non-jury Trial for 9:30 2/12/03 in Oxford , set Discovery deadline to 1/31/03 ; this case is consolidated with the Gates case and will be certified as a sub-class of all the current death row inmates housed in Unit 32, defendants shall provide plaintiffs with the discovery requested in the attachment to Ms. Winter's letter of 10/21/02, except for item 6 under the heading "correctional"; defendants are required to provide only copies of grievances and responses dealing with conditions of confinement on death row during the last 12 months (signed by Magistrate Judge Jerry A. Davis on 10/25/02) Date of Entry: 10/25/02 (jla) Modified on 02/03/2003
27 ORDER consolidating case with 4:71cv06-JAD (signed by Magistrate Judge Jerry A. Davis on 10/25/02) Date of Entry: 10/25/02 (jla) (Entered: 09/03/2004)
Consolidated Member Case . Lead Case Number: 4:71cv6 (jla) (Entered: 09/03/2004)
28 AMENDED MOTION by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv-00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02-cv-00261, Robert L. Johnson in 1:02-cv-00261 to Dismiss referring to: [17-1] motion to Dismiss for failure to exhaust available administrative remedies by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (dlh)
29 RESPONSE by Paul Woodward in 1:02-cv-00261, John Nixon in 1:02cv-00261, Kevin Jordan in 1:02-cv-00261, Sherwood Brown in 1:02-cv00261, Willie nmi Russell in 1:02-cv-00261 in opposition to [28-1] supplemental amended motion to Dismiss by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (jb)
30 NOTICE OF SERVICE of responses to requests by Larry Harris , Jessie Streeter , Emmitt L. Sparkman, Christopher Epps , Robert L. Johnson to Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown , Willie Russell (dlh)
32 NOTICE OF SERVICE of designation of expert witnesses by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv-00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02-cv-00261, Robert L. Johnson in 1:02-cv-00261 to Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv-00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02-cv-00261 (jla) (Entered: 01/14/2003)
31 NOTICE OF SERVICE of supplemental responses to requests for production by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02cv-00261, Robert L. Johnson in 1:02-cv-00261 to Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02cv-00261 (jla)
33 MEMORANDUM OPINION ( signed by Magistrate Judge Jerry A.

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01/14/2003 01/23/2003 01/24/2003
01/27/2003
02/11/2003 02/11/2003 02/18/2003 02/18/2003 02/18/2003
03/03/2003 03/05/2003 03/11/2003

Page 11 of 16
Davis on 1/14/03) (jla)
34 ORDER denying as moot [8-1] motion to Certify Class ( signed by Magistrate Judge Jerry A. Davis on 1/14/03) Date of Entry: 1/14/03 (jla)
Evidentiary Hearing set for 10:00 2/13/03 before Magistrate Judge Jerry A. Davis in Oxford (jla)
35 NOTICE OF SERVICE of supplemental responses to requests for production by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02cv-00261, Robert L. Johnson in 1:02-cv-00261 to Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02cv-00261 (jla) Modified on 01/24/2003
36 NOTICE OF SERVICE of requests for production by Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02cv-00261 to Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02cv-00261, Robert L. Johnson in 1:02-cv-00261 (jla) Modified on 01/28/2003 (Entered: 01/28/2003)
WRIT of habeas corpus ad testificandum issued for Willie Russell. (jla)
37 RESPONSE by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02cv-00261, Robert L. Johnson in 1:02-cv-00261 to [34-1] order (jla)
38 CIVIL MINUTES for: Non-Jury Trial held 2/15/03 before Mag. Judge Davis in Oxford; Court Reporter: Debbie Harris; proposed findings of fact and conclusions of law due from parties by 3/10/03 (jla)
Non-Jury Trial held (jla)
39 Witness and Exhibit list by Larry Harris in 1:02-cv-00261, Jessie Streeter in 1:02-cv-00261, Emmitt L. Sparkman in 1:02-cv-00261, Christopher Epps in 1:02-cv-00261, Robert L. Johnson in 1:02-cv-00261, Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv-00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02-cv-00261 (jla)
TRANSCRIPT [3 Vols.] filed for Evidentiary Hearing for dates of 2/1315/03, Oxford before Mag. Judge Jerry A. Davis (tab)
This case was consolidated with 4:71CV6 with previous consent entered, and parties agreed (mhg)
40 Letter MOTION by Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv-00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02-cv-00261 for Heather Esme Bashwiner to Appear Pro Hac Vice, Admission Fee: Amount $ 25 Receipt # 70421 (mhg) (Entered: 03/13/2003)

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03/17/2003 04/15/2003 05/21/2003 05/21/2003
05/21/2003 06/02/2003 06/04/2003 06/06/2003
06/06/2003
06/06/2003 06/06/2003 06/12/2003 06/16/2003 06/16/2003

Page 12 of 16
41 ORDER granting [40-1] motion for Heather Esme Bashwiner to Appear Pro Hac Vice ( signed by Magistrate Judge Jerry A. Davis on 3/17/03) Date of Entry: 3/17/03 (mhg) Modified on 03/18/2003
42 WRIT of habeas corpus ad testificandum as to Willie Russell returned executed on 2/13/03 (jla)
43 MEMORANDUM OPINION ( signed by Magistrate Judge Jerry A. Davis on 5/21/03) (dlh)
44 FINAL JUDGMENT re remedial action by defendants to correct the 8th amendment violations; by 7/7/03 the defendants shall report their progress in meeting the remedial actions ordered by the court; the plaintiffs are granted until 7/17/03 to respond to any matters raised by the defendants; the plaintiffs are awarded their reasonable attorneys' fees and expenses ( signed by Magistrate Judge Jerry A. Davis on 5/21/03) COB # 55 pg. 147-149 Date of Entry: 5/21/03 (dlh) Modified on 07/07/2003
Case closed (4:71-cv-00006) (dlh)
45 MOTION by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell to supplement findings (jla)
46 MOTION by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell for Attorney Fees , to Extend Time to file declarations of counsel in support of motion for fees and expenses (jla)
47 RESPONSE by Larry Harris, Jessie Streeter, Emmitt L. Sparkman, Christopher Epps, Robert L. Johnson to [45-1] motion to supplement findings by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward (dlh)
48 NOTICE OF APPEAL of [44-1] judgment order by Larry Harris, Jessie Streeter, Emmitt L. Sparkman, Christopher Epps, Robert L. Johnson . FILING FEE $ 105.00 RECEIPT # 71880 Appeal record due on 6/21/03 (dlh)
49 MOTION by Larry Harris, Jessie Streeter, Emmitt L. Sparkman, Christopher Epps, Robert L. Johnson to Stay Execution of Judgment pending appeal (dlh)
Notice of Appeal and certified copy of docket to USCA: [48-1] appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (dlh)
50 ORDER granting [46-2] motion to Extend Time to file declarations of counsel in support of motion for fees and expenses by 7/25/03 (signed by Magistrate Judge Jerry A. Davis on 6/12/03) Date of Entry: 6/12/03 (jla)
51 MOTION by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell for status conference (jla)
52 AFFIDAVIT of Margaret Winter Re: [51-1] motion for status conference by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul

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06/16/2003 06/18/2003 06/18/2003 06/23/2003 06/25/2003 06/30/2003 07/01/2003
07/08/2003 07/16/2003
07/17/2003 07/23/2003 07/25/2003

Page 13 of 16
Woodward (jla)
53 RESPONSE by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell in opposition to [49-1] motion to Stay Execution of Judgment pending appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (jla)
54 ORDER denying [49-1] motion to Stay Execution of Judgment pending appeal ( signed by Magistrate Judge Jerry A. Davis on 6/18/03) Date of Entry: 6/18/03 (jla)
55 SUPPLEMENTAL MEMORANDUM OPINION re 5/21/03 opinion ( signed by Magistrate Judge Jerry A. Davis on 6/18/03) (jla)
Certified and transmitted Record on Appeal to U.S. Court of Appeals: [48-1] appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (3 volumes record, 3 volumes transcript, 1 volume exhibits) (dlh)
56 MOTION for Sandi Farrell to Withdraw as Attorney as attorney for plaintiffs (dlh)
USCA Case Number Re: [48-1] appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris USCA NUMBER: 03-60529 (mhg)
57 ORDER granting [56-1] motion for Sandi Farrell to Withdraw as attorney for plaintiffs (Terminated attorney Sandra Farrell for Willie nmi Russell, attorney Sandra Farrell for Sherwood Brown, attorney Sandra Farrell for Kevin Jordan, attorney Sandra Farrell for John Nixon, attorney Sandra Farrell for Paul Woodward ( signed by Magistrate Judge Jerry A. Davis on 7/1/03) Date of Entry: 7/1/03 (dlh)
NOTICE of Docketing ROA from USCA Re: [48-1] appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris USCA Number: 03-60529 (dlh)
58 ORDER denying defendants' motion for additional time until the 5th Circuit rules on defendants' request for a stay; plaintiffs are granted 12 days to respond to defendants' report to court; plaintiffs' attorneys and experts are granted access to death row for a period from 9:00 to 3:30 on a day next week acceptable to all parties; the attorneys and experts may take still photographs and record their interviews with the plaintiffs (signed by Magistrate Judge Jerry A. Davis on 7/16/03) Date of Entry: 7/16/03 (jla) (Entered: 07/17/2003)
59 MOTION by Larry Harris, Jessie Streeter, Emmitt L. Sparkman, Christopher Epps, Robert L. Johnson to Extend Time to submit their plan of progress in meeting the remedial actions ordered by the Court until USCA has ruled on motion to stay (mhg) (Entered: 07/18/2003)
60 Defendant's Report to the Court (jla)
61 MOTION by Larry Harris, Jessie Streeter, Emmitt L. Sparkman,

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07/29/2003
08/06/2003 07/21/2004
07/21/2004 07/21/2004 07/27/2004 09/01/2004 09/03/2004 09/03/2004 09/09/2004
09/27/2004
09/28/2004 11/15/2004
11/22/2004

Page 14 of 16
Christopher Epps, Robert L. Johnson to Hold in Abeyance [46-1] motion for Attorney Fees by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward (jla)
62 ORDER granting [61-1] motion to Hold in Abeyance [46-1] motion for Attorney Fees by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward; at the time 5th Circuit rules on the appeal, plaintiffs may renew their motion, if appropriate (signed by Magistrate Judge Jerry A. Davis on 7/29/03) Date of Entry: 7/29/03 (jla)
63 RESPONSE by Paul Woodward, John Nixon, Kevin Jordan, Sherwood Brown, Willie nmi Russell to [60-1] remark (jla)
64 JUDGMENT OF USCA (certified copy) affirming in part and vacating in part the judgment of the District Court; Re: [48-1] appeal by Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman, Jessie Streeter, Larry Harris (jla)
Record on Appeal returned from U.S. Court of Appeals: [48-1] appeal (jla)
Case reopened (jla)
Returned mail sent o Robert E. Lewis marked 'return to sender' (jla)
65 Defendant's Report to the Court (jla) (Entered: 09/02/2004)
66 JUDGMENT OF USCA (certified copy) affirming in part and vacating in part opinion of District Court (jla) Modified on 09/07/2004
67 JUDGMENT OF USCA (certified copy) denying motion for attorneys fees (jla) Modified on 09/07/2004
68 MEMORANDUM by Paul Woodward in 1:02-cv-00261, John Nixon in 1:02-cv-00261, Kevin Jordan in 1:02-cv-00261, Sherwood Brown in 1:02-cv-00261, Willie nmi Russell in 1:02-cv-00261 in support of plaintiffs' renewed motion for attorney's fees and expenses (motion not filed with the Clerk's Office) (jla) Modified on 09/10/2004
69 ORDER granting plaintiff's oral motion to permit medical and psychiatric experts to visit Unit 32 during the weeks of 10/9/04 and 11/8/04 ( signed by Magistrate Judge Jerry A. Davis on 9/27/04) Date of Entry: 9/27/04 (dlh)
TRANSCRIPT filed for dates of 06/28/04 and 06/29/04 for Hearing on Motion to Terminate Court Supervision before Mag. Judge Jerry A. Davis in Oxford, MS. (2 Volumes) (nsm)
70 AMENDMENT TO MEMORANDUM IN SUPPORT of plaintiffs' renewed motion for attorney's fees and expenses by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward. (jla, USDC)
71 RESPONSE in Opposition re [46] Motion for Attorney Fees, Motion for Extension of Time filed by Jessie Streeter, Larry Harris, Robert L.

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11/22/2004 12/03/2004
12/03/2004
02/04/2005 08/01/2005 08/08/2005 08/10/2005 08/15/2005 04/07/2006 04/21/2006 05/12/2006 05/15/2006 05/15/2006
05/16/2006

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Johnson, Christopher Epps, Emmitt L. Sparkman. (dlh, USDC)
72 MEMORANDUM IN SUPPORT re 71 Response in Opposition to Motion by Jessie Streeter, Larry Harris, Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman. (Attachments: # 1)(dlh, USDC)
73 REBUTTAL DECLARATION of Margaret Winter regarding plaintiffs' motion for attorneys' fees and expenses by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward, Tracy nmi Hansen. (mhg, USDC) Modified on 12/3/2004 (mhg, USDC).
74 REBUTTAL DECLARATION of Stephen F. Hanlon regarding plaintiffs' motion for attorneys fees and expenses by Willie nmi Russell, Sherwood Brown, Kevin Jordan, John Nixon, Paul Woodward, Tracy nmi Hansen. (mhg, USDC)
75 ORDER Awarding Attorneys' Fees and Expenses re:73,74,[68], [46],70,71],72,. Signed by Judge Jerry A. Davis on 2/4/2005. (jkj, USDC)
76 MOTION to Appear Pro Hac Vice ; Attorney Gouri Bhat, by all plaintiffs. (Winter, Margaret)
77 Pro Hac Vice Fee Paid: $ $25.00, receipt number 81010 filed by Gouri Bhat. (dmd, USDC) Modified on 8/8/2005 (dmd, USDC).
78 ORDER granting 76 Motion to Appear Pro Hac Vice of Attorney Gouri Bhat. Signed by Judge Jerry A. Davis on 8/10/2005. (jkj, USDC)
79 NOTICE of Attorney Appearance by Leonard Charlton Vincent on behalf of Jessie Streeter, Larry Harris, Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman (Vincent, Leonard)
80 NOTICE of mandatory electronic filing sent to Heather Esme Bashwiner (jla, USDC)
81 ORDER to Show Cause sent to Heather Esme Bashwiner re 80 Notice of mandatory electronic case filing. Signed by the Clerk on 4/21/06. (jla, USDC)
82 MOTION for Heather Esme Bashwiner to Withdraw as Attorney by all plaintiffs. (Hanlon, Stephen) Modified on 5/15/2006 (jla, USDC).
83 ORDER granting 82 Motion to Withdraw as Attorney for Plaintiffs. Attorney Heather Esme Bashwiner terminated. Signed by Judge Jerry A. Davis on 5/15/2006. (jkj, USDC)
84 MOTION of Marvin White to Withdraw as Attorney for Defendants by Jessie Streeter, Larry Harris, Robert L. Johnson, Christopher Epps, Emmitt L. Sparkman. (White, Marvin) Modified on 5/16/2006 (mhg, USDC).
85 ORDER granting 84 Motion to Withdraw as Attorney for Defendants. Attorney Marvin L. White, Jr terminated. Signed by Judge Jerry A. Davis on 5/16/2006. (jkj, USDC)

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06/08/2006 06/14/2006

86 MOTION for Leave to Withdraw from Class Representation and to Proceed Pro Se in Future Filings to Seek Enforcement in this Cause by Richard G. Jordan. (jb, USDC)
87 ORDER CLOSING CASE. Signed by Judge Jerry A. Davis on 6/14/2006. (jkj, USDC)

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 REPORT OF DR. TERRY A. KUPERS, M.D., M.S.P.
1. I am a board-certified psychiatrist, and have been retained as an expert witness by plaintiffs’ counsel in this case. My qualifications and curriculum vitae have previously been provided to the Court. This Report supplements my July 7, 2002 Declaration.
2. I toured Death Row at Mississippi State Penitentiary, Parchman, on August 8, 2002, in the company of ACLU and MDOC attorneys, the Warden and Associate Warden of Unit 32, and Corrections staff. I also visited the Unit 32 clinic and other areas in Unit 32 and the Prison Hospital in Unit 42. I interviewed Corrections staff, Chief Medical Officer Dr. John Bearry, Psych. Assistant Mildred Ware, and another Psych. Assistant (the Psychiatrist, Dr. Glenn, was not at the facility that day). I interviewed 21 Death Row prisoners in the visiting room, by phone through a glass partition. I interviewed an additional ten prisoners at their cells. I reviewed over twenty medical and mental health charts. The tour, interviews and chart review began at 8 A.M. and lasted until 10:30 P.M. Before and after the tour, I reviewed additional written letters and affidavits from prisoners, statistics regarding appeals and post-conviction legal outcomes, temperature data, and various Mississippi Department of Corrections policies pertaining to Death Row, including The Standard Operating Procedures Manual of The Department of Psychiatry, University of Mississippi Medical Center Div. of Correctional Medicine (eff. 10/1/00) and related policies.
3. It was abundantly obvious that MDOC had made efforts to improve appearances in the days immediately preceding our tour. A few days before our tour, all of the state prisoners who had been housed among Death Row prisoners had been relocated. In the three days preceding our tour, the psychiatry department had posted quite a few "90 day Comprehensive Mental Health reviews" in the inmates’ medical charts. Shortly before our tour, some of the prisoners’ televisions and fans had been returned to them. The outdoor areas surrounding C Building had been sprayed for insects within hours of our visit. Parts of Tier 1 had been freshly painted. Staff had given showers to psychotic prisoners and had cleaned their cells shortly before we arrived.
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4. Nevertheless, my observations, interviews with staff and inmates, and document review during my fourteen-hour tour confirmed the accuracy of the descriptions provided in the prisoner declarations on which I relied in my July 7, 2002 Declaration. Parchman¹s Death Row rivals any prison I have seen for cruel, harsh and inhumane conditions of confinement, even compared with super-maximum facilities. These conditions are not warranted on penological grounds, and they cause the Death Row prisoners at Parchman intense and needless pain and suffering. These conditions are virtually certain to cause medical illness and destruction of mental stability and functioning. It is probable that as a result of these conditions, a significant proportion of the prisoners have developed or will develop psychiatric conditions that interfere with their ability to cope with life in prison and in the community, and that many have suffered or will suffer breakdowns that become chronic and chronically disabling.
5. It should be noted that in fact many of these prisoners will never be executed: a significant number of them will eventually have their sentences vacated by the courts and be released from Death Row; some may eventually be exonerated. Of 183 death sentences imposed in Mississippi since 1976, 5 people have been executed, four have had their convictions reversed, and five have been resentenced to life imprisonment. The Mississippi Supreme Court has reversed the death penalty in 41% of the 166 direct appeals it has ruled upon; relief was granted in federal habeas or following federal habeas court remand in 21 cases; and sixty-seven sentences (36.6%) are still under review. Thus, almost as many people have had their convictions reversed as have been executed, and relief in some form was granted in 108 cases (59%). But in any event, in our society, even a prisoner condemned to execution may not be incarcerated in cruelly inhumane conditions, or allowed to suffer severe pain and illness without basic treatment for his serious medical and psychiatric needs.
6. A high percentage of the prisoners I interviewed clearly suffer from severe mental illness. At least six suffer from obvious psychosis with current signs including auditory hallucinations and delusions. At least another six suffer from severe depression and other mood disorders. I also discovered several cases each of severe anxiety, panic disorder, post-traumatic stress disorder and other significant mental illnesses. In all likelihood there are many more prisoners suffering from serious mental illness beyond the ones I happened to interview.
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7. The very serious mental health needs of these prisoners are not being addressed. The mental health care available to prisoners on Death Row is grossly inadequate. There are three Psych. Assistant positions, but only two are filled. There is a Psych. Evaluator; and a part-time Psychiatrist whose caseloads include Death Row prisoners as well as prisoners on other units. Besides brief visits with the psychiatrist, which are supposed to occur once every three months on average (in a few cases they occur more frequently but in many more cases they actually occur much less frequently), there is little in the way of mental health services. The Psych. Assistants told me that they make rounds and ask prisoners known to suffer from significant mental illness how they are doing, but most of these interviews are very brief. Further, many of these visits occur at the prisoner¹s cell door within earshot of other prisoners and Corrections Officers. Thus, there is no confidentiality, and prisoners are very unlikely to aver any emotional problems in such a setting.
8. The Psych. Assistants told me that, although their caseloads are very large and they are responsible for other populations besides Death Row, they still have approximately 20 cases between them on Death Row. They state that they conduct monthly interviews with these 20 prisoners in an office on the tier, which can last between 10 to 20 minutes each.
9. The prisoners tell another story. Most of the prisoners who suffer from mental illness, including those who are prescribed psychiatric medications, tell me that besides their occasional visits with the psychiatrist they have no other contact with mental health personnel. When I ask about their contact with the Psych. Assistants, some tell me that a Psych. Assistant occasionally accompanies Dr. Glenn on his rounds. Others who are taking prescribed psychiatric medications tell me they have never even seen a Psych. Assistant. Others told me that just before our August 8 tour, a Psych. Assistant came by their cell and talked to them at the door of their cell for a minute or two in order to complete a 90 day Comprehensive Mental Health Report, but they had never seen a Psych. Assistant on their tier before that. Quite a few prisoners report that they very rarely get to see the psychiatrist, and often the appointments they were given are canceled. Several report that they are supposed to see Dr. Glenn every three months so he can monitor their psychiatric medications, but they have not actually seen him for over six months. According to one prisoner who remembers being seen by a Psych. Assistant on rounds, "Let me put it this way, I was on my way to the
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shower when he came by, and our interview did not slow my progress toward the shower."
10. My review of the medical charts of over 20 prisoners reveals that the prisoners¹ reports are essentially accurate. Mental health notes are very sporadic and incomplete. There are some 90 day Comprehensive Mental Health Reports in the charts, but they are not completed in their entirety, and often provide very little real information about the prisoners’ psychiatric conditions and the prisoners’ responses to treatment. Many psychiatric progress notes consist of the name and dosage of a medication being prescribed and the length of time until the next appointment, with no comment about the prisoner’s condition, why the medication is being continued or changed, nor any other treatment that might be indicated. There are occasional longer notes, sometimes typed and other times handwritten, which may provide a little more information, but certainly do not constitute adequate ongoing clinical chart entries. By looking at the dates of visits with the psychiatrist and the Psych. Assistants, it becomes clear that there are often significant delays between the time a prisoner requests mental health services and the time they are seen, and often there are very long periods between visits. One prisoner (S.M.) tells me he refuses to take the tranquilizers the psychiatrist prescribed in February because he has not been able to see the psychiatrist since February, in spite of requesting an appointment several times. A review of the charts bears out the prisoners’ reports. There are frequent notes by non-physicians stating: "Due to the number of patients and time constraints, this patient is being rescheduled." Many psychiatric medications require close monitoring and blood tests to guard against the development of toxic side effects, for example liver damage. The haphazard nature of appointments with mental health staff and the lack of adequate notes in the charts lead me to conclude that adequate monitoring of this kind is not occurring on a regular basis.
11. As Mr. Nathan points out in his report, security staff are assigned to transport and pass out prescribed medications. This practice is unacceptable in terms of the standard of medical care. The fact that so many prisoners complain about irregularities and gross error in the delivery of their medications reflects the inadequacy of procedures for distributing prescribed psychiatric and other medications on Death Row at Parchman. Several prisoners who are taking psychiatric medications told me that on more than a few occasions they were given the wrong medications, and others told me that their medications are frequently discontinued for days or longer for
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reasons unknown to them.
12. Besides infrequent and extremely brief meetings with mental health staff, many of which occur at the cell door, and the prescription of psychiatric medications, there are no psychiatric services available to prisoners on Death Row. I spoke to Ms. Ware, another Psych. Assistant, and Dr. Bearry about the mental health treatment program. They confirmed there were no other services available except in the event someone needed admission to a psychiatric hospital. As I questioned them about who has been admitted to a psychiatric hospital for acute psychosis or serious suicide risk in recent years, it became apparent that prison health care providers do not utilize this option for prisoners on Death Row except on the rarest of occasions.
13. Ms. Ware and Dr. Bearry told me that the Observation Cells in the Prison Hospital in Unit 42 at Parchman have not been used to confine a Death Row prisoner for years. When I asked why, Dr. Bearry told me: "There¹s been no reported suicide ideation or attempt on Death Row for years." I found this statement to be incredible, given that a significant proportion of prisoners I interviewed spoke openly about their despair and frequent thoughts of suicide. For example, Willie Russell confided that in January 2002, he wrote a letter to the Unit Administrator saying he was planning to kill himself, and the staff searched his cell and discovered hoarded pills that he was planning to use for that purpose. In other words, prisoners with serious mental illness or suicidal ideation on Death Row are mainly left to suffer alone in their cells without the benefit of mental health services beyond the prescription of medications, and the monitoring of those medications is far from adequate.
14. While the mental health care is inadequate in general, the care provided to extremely disturbed individuals is shockingly deficient, and creates a threat to the well-being of all prisoners on Death Row. Just about every prisoner I interviewed discussed the presence on Death Row of severely psychotic prisoners who foul their cells, stop up their toilets, flood the tiers with excrement, and keep other prisoners awake all night with their incessant screams and shouts. Some of the severely disturbed prisoners at the time the prisoners¹ affidavits were written were "state prisoners" who are not sentenced to death but were confined on the tiers that house Death Row. These "state prisoners" were removed from the three tiers we toured just prior to our visit. There remain at least three Death Row prisoners (Ronnie
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C., James B. and David B.) who are obviously acutely psychotic in spite of being prescribed psychiatric medications, and who foul their cells and the tiers and/or scream and make noise day and night. Several prisoners informed me there are others who are nearly as disturbed, loud and filthy as those three.
15. I interviewed David B. He is acutely psychotic and admits to screaming loudly and disturbing the other prisoners day and night, and he tells me he cannot control himself even when he takes anti-psychotic medications. I passed by the cell of James B., who is also clearly psychotic. Even though officers had forcibly showered him and cleaned his cell just prior to our tour, his cell already emanated a foul odor by the time I passed by on the evening of August 8.
16. Prisoners who are as severely disturbed and disruptive as James B., David B. and Ronnie C. require much more intensive psychiatric treatment than is available on Death Row at Parchman. The problem with their not being adequately cared for and treated is twofold. First, the seriously disturbed prisoners are left to deteriorate even further because of the severe idleness and isolation on Death Row and because of all the other conditions I outlined in my July 7 Declaration, and as a result their psychiatric disturbances become more severe, chronic and unresponsive to future treatment, and therefore their prognoses becomes much worse. Second, prisoners in neighboring cells suffer immense pain, discomfort and psychiatric breakdown because of the presence among them of prisoners who cannot control themselves and foul the cell-block, flood the tiers, throw excrement and keep the others up day and night with their loud noises and hollering.
17. One prisoner (H.G.), who has been diagnosed Paranoid Schizophrenic and is prescribed Haldol, a strong anti-psychotic medication, hears voices that order him "to do things" (command hallucinations). He tells me that he sleeps much of every day, he cannot afford a television so when he is awake he sits and stares or tries to read, but he cannot remember what he reads and cannot concentrate on the pages. His cell was next door to that of Ronnie C. for some time, and the noise, "the stink from Ronnie¹s cell," and the many bugs that fly from the filth in Ronnie¹s cell, made him extremely anxious and made the voices in his head louder. These are entirely unacceptable conditions of confinement and psychiatric treatment for a prisoner who suffers from this degree of serious mental illness. There are many more
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prisoners on Death Row who suffer from serious mental illness and are receiving far from adequate mental health treatment.
18. Corrections staff tell me that their strategy for managing Death Row prisoners whom they consider to be high security risks is to constantly move them to a new cell, on average once every week. Of course, this means that other prisoners must be moved to accommodate the movement of the highrisk prisoners; thus, there is frequent and widespread cell movement. Security Expert Vincent Nathan questions the necessity of this procedure in his Report. The consequence, whether intended or unintended, is that prisoners live with the omnipresent possibility that they will be placed in a filthy, foul-smelling cell that had been occupied by one of the very disturbed prisoners who smeared feces or fouled the cell, or a cell in which the window mechanism is broken or the electrical outlet has been destroyed. When the unlucky prisoner who is moved into a filthy cell requests cleaning supplies to make the cell habitable, the staff cannot or will not provide adequate supplies.
19. This technique for managing security risks constitutes a kind of physical and psychological punishment that can drive men stark raving mad, or to suicide. A July 29, 2002 letter from Paul Woodward describes the effect on him of a recent move of this kind: "They moved me into Cell #13, which had been Ronnie C¹s cell. Cell #13 has no electrical outlet or TV hook-up. I couldn¹t use any of my electrical appliances. My fan was sorely missed! The cell was full of mosquitoes, as the window was open and the screen has a huge gash in it. There was feces and dried urine all over the floor and walls, as well as the bars and the bed. I asked officers for a broom and mop for 5 hours, but all they gave me was a piece of a towel and a little disinfectant, which I used on the bars as my food had to pass through them. The heat and mosquitoes were too bad to sleep, so I spent most of that night (the 24th) scrubbing that cell. You may recall that I weigh 320 lbs. The only way I could scrub the floor with that piece of towel was to get down on my hands and knees. I tried to lie on the bed and clean a spot on the floor to begin on my hands and knees. I wanted to keep from getting the feces and urine all over me, but I failed miserably! When I had the cell as clean as I could get it, I washed myself, and then my boxers. A sergeant came along and told me to take the clothesline down or get written up. It just seemed that everything was working on me as punishment."
20. Health care for Death Row prisoners is as glaringly deficient as mental
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health care. There are long waits to see the physician, emergencies are not managed adequately, prisoners complain that there are interruptions in the daily provision of medications, prisoners on Death Row are not offered medical and surgical treatments that are indicated for their conditions and are available to prisoners in other units, and so forth. Regarding heat-related illness, Dr. Susi Vassallo states in her 8/31/02 Expert¹s Report: "All of the inmates on Death Row are at high risk of heat stroke and heat-related illness. In the extremely hot environment I experienced in Unit 32, and as confirmed by the temperature and humidity measurements taken by environmental expert James Balsamo, even individuals without any underlying medical conditions would be expected to suffer heat-related illness. However, many of the prisoners are at particularly heightened risk of serious heat-related illness and permanent injury."
21. Inadequate health care has destructive psychological consequences. Many prisoners expressed great anxiety about getting sick and not receiving adequate treatment. Several prisoners told me that they have witnessed other prisoners become acutely ill only to be left in their cells without medical attention for many hours, and they are anxious that they would receive the same inattention were they to become deathly ill. Two prisoners confided that they plan to give up their capital appeals because they are terrified that they will eventually get sick, receive inadequate health care and become terribly disabled. Both prisoners confided that they would rather be dead, and this is why they plan to waive their legal appeals.
22. Besides the gross deficiencies in medical and mental health care, I observed first-hand a number of the other inhumane conditions of which the prisoners complain, including the "ping pong toilets." When a prisoner flushes his toilet, the waste backs up into his neighbor¹s toilet. Many of the prisoners cover their toilet bowl with a towel in order to slow the overflow of waste from their neighbor, but this is likely to leave them without a clean towel. Worse, if a prisoner suffering from serious mental illness stuffs something down his toilet in order to stop it up, the toilets up and down the tier back up and waste overflows onto the floor in all the cells. Environmental Expert James Balsamo summarizes his findings: "Conditions in this facility, including excessive heat, filth, uncontrolled insect and mosquito infestations with attendant risk of West Nile infection, inadequate water supply, water leaks, impaired ventilation, uncontrolled water temperatures, malfunctioning toilets, the apparent lack of adequate cleaning supplies, food being held and served at unsafe temperatures,
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unsanitary laundry, broken automatic fire detection and alarm system, excessive noise, and extremely poor lighting, all combine to seriously jeopardize the health and safety of the inmates and the correctional officers who live and work in Unit C-32, Death Row."
23. The high risk of morbidity and mortality on Parchman¹s Death Row due to extremes of heat and humidity requires urgent attention. It was 90 degrees in some of the cells as measured by Mr. James Balsamo in the evening of the day we toured, and August 8 was a relatively cool day for the Mississippi Delta. The temperature and humidity are often significantly higher during this summer and other summers. Thus, the reported outdoor high on August 8, 2002, was 91 degrees F; while the high on 7/31 was 93, on 8/1 it was 93, on 8/2 it was 94, on 8/3 it was 97, on 8/4 it was 98, on 8/5 it was 95, on 8/6 it was 96, and on 8/7, the day prior to our tour, it was 97. Any time the ambient temperature exceeds 88 degrees Fahrenheit there is significant danger of heat-related morbidity and mortality (see Dr. Susi Vasallo¹s Report). This is especially the case for prisoners suffering from serious mental illness and taking psychiatric medications or any other anticholinergic or otherwise implicated medications (see my July 7 Declaration).
24. I had myself locked for a few minutes into Willie Rusell¹s "special management" cell, which has a Plexiglas cover over the metal door, and experienced even more discomfort than I felt in the regular cells. Even being locked in the cell for a few minutes I could feel the temperature and humidity rise. This kind of punishment is well known to cause intense anxiety and rage, psychiatric breakdown, and in a large proportion of cases, suicide.
25. A certain modicum of dignity and self-respect is a requirement for the maintenance of sound mental health. Most of the prisoners I spoke to were very upset by what they consider arbitrary rules that inflict unnecessary pain and deprivations. For example, policy prohibits prisoners from moving their mattresses from the concrete slabs under the window, there are several reasons why prisoners urgently want to move from under their windows. When state prisoners in cells above flood their toilets, or when rainwater pours in along the outer cell wall onto the bed, yet the prisoner is not allowed to move his bed away from the water. In many cells, the afternoon sun shines through the windows directly onto the prisoners¹ bunks, yet policy prohibits the prisoners from covering their window to avoid the sun¹s
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glare. Several inmates spoke of their attempts to lie on the floor in order to gain relief from the excruciating heat, only to be told by officers that they will be given a disciplinary write-up if they lie on the floor. While prisoners are required to keep their cells clean, the officers do not bring them sufficient cleaning materials. A prisoner explains: "They bring a bucket of water and a mop to the first cell on the tier, and then when that guy¹s finished cleaning his cell they take it to the next cell. By the time the bucket gets to the third cell the water is filthy, and they never even bother taking it past the first few cells on the tier. So the guys in the further back cells never get a chance to clean their cells." MDOC recently instituted a policy that the men on Death Row must wear other inmates¹ used underwear. Many of the prisoners I interviewed felt that being forced to wear another man¹s used underclothes, which they have no way of sanitizing, was so repugnant, humiliating and demeaning, that they would rather incur discipline than obey orders to do so.
26. Most of the prisoners feel that the rules are enforced in erratic and unpredictable ways. I asked some prisoners why they did not purchase a television or radio when they are permitted to do so, and was told by several prisoners that a television costs over $300, and they can never know when it will be taken away from them for purely arbitrary reasons. The attitude of many prisoners was summed up by one man: "What¹s the use? Why purchase a television when it can be taken from you in a minute and you may or may not get it back?" Mr. Nathan discusses flaws in the disciplinary system in his report.
27. The prisoners corroborated all concerns I culled from the Affidavits for my July 7 Declaration regarding telephone calls, visits and mail. (¶ 53 - 58). Many prisoners told me they do not have visits for a variety of reasons, including the limiting of visits for Death Row prisoners to weekdays when their loved ones work. Phone calls are expensive and their mail can be halted on account of a disciplinary infraction, or if they lack the money to purchase stamps at the commissary they cannot write letters. In these and other ways, their contacts with loved ones outside of Death Row are blocked or restricted, and as a result they feel very isolated and are prone to all the psychiatric hazards of isolation I described in my July 7 Declaration.
28. The perception among prisoners is of incessant, unrelenting and arbitrary deprivations and punishments. According to Steve Knox: "Every rule change is for the worse they took our shoes and we have to go out on the yard in the
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rain and get our feet wet, and we can¹t even run and get any exercise in those shower clogs; then in April (2002) they took most of our photographs and limited us to keeping only ten letters from loved ones in our cells, I don¹t know why, but it was hurtful, those letters are all I have from my sister and others I love; then they stopped stamps from coming in through the mail you have to buy them in commissary - I don¹t have money, I was broke for two months and that meant I couldn¹t write to anyone." According to another prisoner, "It seems like everything they do around here is aimed at driving you crazy."
29. A certain amount of sadness is obviously to be expected in a Death Row setting, but at Parchman I discovered rampant depression, hopelessness and suicidal ideation, far beyond what I have observed on Death Rows in other states. The prisoners connect their sense of despair and lack of hope to the harsh conditions and incremental deprivations they feel are unfairly forced upon them. The prisoners¹ gloomy characterization of the incremental deprivations is born out by my observations. Things are taken away, things are never given. There are no programs and few if any opportunities for the prisoners to improve their situation by behaving well. Hope fades of ever being treated like a human being again. Despair sets in.
30. I saw much evidence of psychiatric breakdown. I mentioned in my July 7 Declaration that under the extreme conditions of isolated confinement, psychiatric symptoms begin to emerge in previously healthy prisoners, and in less healthy ones there is psychosis, mania or compulsive acts of selfabuse and suicide. I also described some of the signs and symptoms of the SHU Syndrome (¶ 20 & 21). Besides the despair and depression and the many cases of serious mental illness I have already described, my interviews with prisoners on August 8 uncovered widespread inability to concentrate on even the simplest tasks, severe memory loss, depersonalization, paranoia and so forth - i.e. all the symptoms of The SHU Syndrome. Many prisoners told me about the rage they feel, in spite of their every effort to remain peaceful. One prisoner tells me he gets angry, then he gets into heated conversations with other prisoners or officers, then he "sasses a guard, then I get written up and lose privileges; a favorite for them to take is canteen, and that makes me angrier. I know it¹s a losing battle and that it¹s the prison that makes me so angry - I try not to get angry, but I can¹t stop myself." Another prisoner confides: "I¹m always afraid something bad¹s going to happen to me."
31. It is very clear that while isolation and idleness alone would cause many
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troubling psychiatric symptoms, the other harsh conditions in effect on Parchman¹s Death Row - including but not limited to the extremes of heat and humidity, the grossly unsanitary environment, the vermin, the arbitrary and punitive disciplinary policies, and inadequate health and mental health care - significantly increase the risk of prisoners developing major psychiatric problems and increase the severity of despair and psychiatric morbidity that plague these prisoners. The presence of severely disturbed prisoners on the tiers decidedly worsens the psychiatric symptoms of other prisoners. It is likewise highly anxiety-producing for prisoners to watch as a neighbor suffers seemingly life-threatening medical symptoms and yet is left entirely unattended by medical staff. The very anxious prisoner, who is prone to panic attacks with an accompanying sense that he cannot get enough air to breathe, cannot tolerate filthy conditions, extremes of heat and humidity and a situation where he must keep his window shut no matter how hot it is if he is to keep the bugs out of his cell; in fact, these are precisely the conditions that would lead him to experience objective problems breathing along with a subjective sense of breathlessness and panic. Prisoners suffering from mental illness also suffer extreme anxiety when they realize that nobody will respond to their calls for help because the intercom is nonfunctional and staff are often not present on the tiers (see Report of Security Expert Vincent Nathan). This anxiety will inevitably cause a certain number of prisoners suffering from anxiety to act inappropriately, for example by hollering or banging on their doors, to summon staff. According to the prisoners with whom I spoke, when staff eventually do get around to responding, they pay more attention to the fact that the prisoner is making noise than to the emergency needs that led the prisoner to try so hard to get the staff¹s attention. Again, as in many other instances, the staff¹s response is likely to be limited to punishment, a disciplinary infraction perhaps, and meanwhile the prisoners¹ concerns about the lack of emergency response go unheard.
32. All the inhumane conditions I have described combine to make life unbearable on Death Row at Parchman. For example, Jimmy Mack waived all further appeals while he was confined for a long time behind a plasticcovered door in a special management cell. He explained to me, "If I¹m going to have to live like that, you might as well just kill me." Recently he was removed from that cell and decided to permit his appeals to go forward. Willie Russell continues to be incarcerated in this kind of cell, where he has been for two years.
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33. It is a matter of great urgency that Death Row prisoners suffering from severe mental illness receive appropriate treatment. There are at least three, and possibly more, prisoners on Death Row who are so severely mentally ill that they are incapable of maintaining their personal hygiene, who smear their cells with excrement and garbage, and who shriek day and night. It is cruel and unconscionable to leave these severely mentally ill prisoners completely without care in these conditions. It is equally cruel to the remaining prisoners to subject them to the extreme behaviors of the severely ill inmates; to do so causes mental breakdown in them, as well. Prisoners with serious mental illness must be moved to a secure treatment facility where they can receive competent and humane treatment, and where their behavior will not cause severe mental illness and great pain and suffering in other prisoners housed next to them.
34. In preparation for our August 8 tour, MDOC staff actually showered the three most severely disturbed prisoners and cleaned their cells. For the sake of basic decency, staff must clean these prisoners and their cells on a daily basis as long as their psychiatric condition is so deteriorated that they cannot attend to their own hygiene, and not just when an inspection tour by an outside agency is about to occur. Furthermore, it is well known that confining prisoners who are severely disturbed in a cell 23 or 24 hours per day and leaving them idle and isolated will make their psychiatric condition deteriorate even further. They must be offered supervised and safe therapeutic activities and social interaction aimed at improving their mental status or at least preventing further deterioration. Mental health staff trained in intervening with very disturbed patients must spend significantly more time with these prisoners than the few minutes at cell front the mental health staff currently spend. A standard, minimally acceptable treatment regimen for patients this seriously disturbed includes an intensive behavior modification program and training in personal hygiene and cell sanitation, plus sufficient intervention by mental health staff to educate them about their psychiatric illness and the benefits of proper psychiatric medications and other treatments. In addition, mental health staff need to train security staff about severe mental illness and effective ways to intervene with severely disturbed prisoners, and intensive treatment planning is needed, including ongoing case conferences and meetings between mental health and security staff regarding management and treatment of these prisoners.
35. There is a larger number of prisoners on Death Row who are suffering from serious mental illness, yet are not so disturbed that they foul their cells
13

and create constant noise and disruptions. These prisoners are receiving psychiatric medications while receiving almost no other treatment and being left almost entirely idle and isolated in their cells. Continued isolated confinement is very likely to cause further deterioration of their psychiatric conditions, and they require more intensive treatment than can be administered in the Death Row setting. A secure treatment facility must be established that provides necessary therapeutic programs in a setting that will not increase psychiatric illness.
36. The remaining Death Row prisoners , those who are currently in relatively sound mental health, are all at serious risk for psychiatric breakdown because of the conditions on Death Row. These prisoners have a right to be free of the unsanitary conditions, the vermin, the unbearable and unhealthy heat and humidity, the malfunctioning plumbing and sewage system, the arbitrary and ineffective disciplinary policies and practices, the inadequate health and mental health care and all the other inhumane conditions outlined in my report and that of the other experts. How would the average citizen in the community react, knowing that the water can shut off and not be restored for a week at any time during a heat wave? That they are helpless to take basic precautionary measures against West Nile virus? That there is nothing they can do to prevent their toilet from overflowing at any time with waste from neighbors’ cells? That in case of fire or a heart attack there would be inadequate and slow emergency response? Any of these things, and certainly all of them in combination, would predictably cause anxiety, panic attacks, increased despair or intensified delusions, depending on the individual's vulnerabilities.
37. There needs to be an adequate suicide prevention and treatment program for the Death Row inmates, so that those in despair and contemplating suicide can talk to a sympathetic mental health staff member in a safe and therapeutic setting. The prisoners tell me either that they feel that the staff is not interested in having any real therapeutic contact, or that they are unwilling to discuss their suicidal inclinations at their cell door within earshot of other prisoners and prison staff; or that they are afraid to admit how seriously they are contemplating suicide because they would only be stripped and thrown into an observation cell on Unit 42 where they would be even more isolated than on Death Row. Dr. Bearry’s incredible statement to me that there has not been any reported suicidal ideation on Death Row in years shows the need for a less noxious suicide prevention facility, and much better access to sympathetic mental health staff in a confidential office
14

setting.
38. Even well behaved prisoners on Death Row at Parchman are forced to endure permanent and almost total isolation and idleness. There is no reason for all Death Row prisoners to be kept in their cells 23 or 24 hours per day. Of course there are prisoners who require special security precautions, and there are prisoners who are legitimately punished for disciplinary infractions. But many of the prisoners on Death Row have maintained good disciplinary records and are not viewed by staff as especially dangerous. More out-of-cell activities should be offered to these prisoners: a better athletic area and the use of athletic shoes during exercise to allow for aerobic exercise; permission to exercise with one or two other prisoners; dayroom activities such as games around a table or group television time, contact visits with family; all are possibilities. The existence of programs of this kind motivates good behavior. If a prisoner proves he is too great a security risk to take part in these activities, the consequence can be temporary loss of these activities until the prisoner proves he can handle the greater freedom or social interaction.
39. Death Row prisoners need a modicum of hope that through good behavior they can positively affect their situation. Human beings are most likely to respond positively to punishments that are specific to their offenses and time-limited, so they can feel some hope that with better behavior they can earn a better situation for themselves. On Death Row at Parchman, the punishments are so severe and often so arbitrary, and the length of many of the deprivations or punishments is so long or indeterminate, that the prisoner despairs of ever alleviating his suffering. The epitome of this unacceptable scenario is the continued confinement for the past two years of Willie Russell in a stripped down plastic-covered cell.
Respectfully submitted,
Terry A. Kupers, M.D., M.S.P.
August 30, 2002
15

 
 376 F.3d 323 (2004)
Nazareth GATES, etc., et al., Plaintiffs, v.
Thomas D. COOK, etc., et al., Defendants. Willie Russell, etc., et al., Plaintiffs,
Willie Russell, on his own behalf and on behalf of those similarly situated; Sherwood Brown, on his own behalf and on behalf of those similarly situated; Kevin Jordan, on his own behalf and on behalf of those similarly situated; John Nixon, on his own behalf and on behalf of those similarly situated; Paul Woodward, on his own behalf and on behalf of
those similarly situated, Plaintiffs-Appellees, v.
Robert L. Johnson, Commissioner, Mississippi Department of Corrections, in his official capacity; Christopher Epps, Deputy Commissioner, Mississippi Department of
Corrections, in his official capacity; Emmitt L. Sparkman, Superintendent, Mississippi State Penitentiary, in his official capacity; Jessie Streeter, Warden, Area IV, Mississippi State Penitentiary, in his official capacity; Larry D. Harris, Captain, Unit Administrator, Unit 32, Mississippi State Penitentiary, in his official capacity, Defendants-Appellants.
No. 03-60529.
United States Court of Appeals, Fifth Circuit.
June 28, 2004.
32456 *324 *325 *326 Margaret Winter (argued), Amy Fettig, American Civ. Liberties Union Nat. Prison Project, Washington, DC, Robert Bruce McDuff, Jackson, MS, for Plaintiffs-Appellees.
Tom Hunt Cole, Jr. (argued), Forman, Perry, Watkins, Krutz & Tardy, John Lewis Clay, Mary Jo Woods, Jackson, 327 MS, Leonard Charlton Vincent, James Marshall Norris, Miss. Dept. of Corrections, *327 Parchman, MS, for
Defendants-Appellants.
Before DeMOSS, DENNIS and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
Willie Russell ("Russell") brought suit in the Northern District of Mississippi against officials of the Mississippi Department of Corrections ("MDOC") on behalf of himself and other prisoners confined to Death Row, or Unit 32C, in the Mississippi State Penitentiary in Parchman, Mississippi. Russell alleges that certain conditions of confinement on Death Row violate the Eighth Amendment's prohibition against cruel and unusual punishment. By consent of the parties, the case was tried to the magistrate judge, who found several Eighth Amendment violations and entered injunctions designed to alleviate those conditions. MDOC appealed.[1] We affirm in part and vacate in part.[2]
BACKGROUND
Russell argues that the prisoners housed on Death Row are knowingly and deliberately subjected to profound isolation, lack of exercise, stench and filth, malfunctioning plumbing, high temperatures, uncontrolled mosquito and insect infestations, a lack of sufficient mental health care, and exposure to psychotic inmates in adjoining cells. On May 21, 2003, the trial court issued a "Memorandum Opinion" containing its findings of fact and conclusions of law in which the court found that a number of the conditions alleged by Russell violated the Eighth Amendment's prohibition against cruel and unusual punishment. That same day, the court also issued a "Final

Judgment" in which it mandated that MDOC comply with injunctive relief designed to alleviate those conditions. MDOC timely appealed. The trial court denied MDOC's motion for a stay pending appeal. MDOC then filed a motion for stay pending appeal with this court; we granted MDOC's motion.
ANALYSIS
Should this case be dismissed because it was not brought in accordance with the Gates v. Collier class action framework?
328 MDOC first argues that this case should have been brought under the *328 framework for enforcing injunctive relief on the Mississippi prison system provided by Gates v. Collier, 501 F.2d 1291 (5th Cir.1974). MDOC bases this argument on this court's decision in Gillespie v. Crawford, 858 F.2d 1101 (5th Cir1998). The plaintiff in Gillespie attempted to bring suit in federal district court challenging prison conditions in Texas state prison. At that time, a separate district court still retained jurisdiction over Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), a class action that successfully challenged unconstitutional Texas prison conditions, to monitor the prison system until the injunctions issued in Ruiz had been met. See Gillespie, 858 F.2d at 1102. The Gillespie court stated:
Separate individual suits may not be maintained for equitable relief from allegedly unconstitutional Texas prison conditions. To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications. Individual members of the class and other prisoners may assert any equitable or declaratory claims they have, but they must do so by urging further action through the class representative and attorney, including contempt proceedings, or by intervention in the class action.
Id. at 1103.
Gates involved alleged constitutional deficiencies in the Mississippi prison system, and in 1998, after twenty-five years of oversight, the District Court for the Northern District of Mississippi finally dismissed the action from its inactive docket as to state-owned, state-operated, and private-company-contracted facilities (not as to county facilities), complimenting the state on its compliance with prior orders. No. GC-71-6. The court stated:
This dismissal shall be without prejudice for the plaintiffs, through counsel, to petition the Court to reopen the case or a portion thereof in order to enforce, amend, or seek additional injunctive relief.... This dismissal shall not apply to any order of the court with respect to the payment of attorneys fees and costs/expenses to plaintiffs' counsel, who shall, post-dismissal, continue to monitor compliance in state-owned, state-operated, and private-company-contracted facilities.... [T]he court finds and concludes that the rule of [Gillespie] will continue to apply in this case with respect to prisoners in state-owned, state-operated, and private-company-contracted facilities, and the court will continue to forward such prisoner petitions to plaintiffs' class counsel.
No. GC-71-6. Thus, in writing this dismissal order for Gates, the court apparently assumed that Gates was the sole vehicle for future prisoner complaints. Although Russell argues that the court only intended Gates as an option for seeking future equitable relief, the court's invoking the rule of Gillespie indicates that it was meant to be the sole vehicle.
But it does not appear that the reasoning of Gillespie is applicable here. The Gillespie court justified its rule as follows:
Permitting multiple courts to entertain equitable claims and issue decrees that might affect the Texas prison system would require other courts to become familiar with the Ruiz decree, the current problems of the Texas prison system, and the possible disruptive effect of the exercise of equitable powers over matters covered by the Ruiz decree. Moreover, if separate suits for equitable relief are filed in other districts than that in which Ruiz is pending, even with respect to problems not encompassed by the relief granted in Ruiz, the court's orders may hobble the effect

329

of the Ruiz court's continuing decree over the Texas *329 prison system and its power both to

enforce and to modify that decree.

Id. at 1103. As this passage illustrates, the Gillespie court was concerned with avoiding the inefficiency of a situation in which multiple courts would be forced to familiarize themselves with the problems of the Texas prison system. Similarly, the court was concerned with the increased confusion and decreased effectiveness that would likely arise if multiple district courts were simultaneously exercising equitable powers over the state prison system.

In the present case, the district court judge who was the author of the Gates dismissal order assigned this case to this magistrate judge in light of this magistrate's previous experience with Gates. Thus, we are not here faced with either the problem of a new district court being forced to get up to speed on the factually-intensive problems of the state prison system or with the problem of multiple district courts simultaneously exercising equitable powers over the prison system. Additionally, the magistrate judge purported to consolidate this case with Gates after certifying the death row inmates as a subclass of Gates. MDOC argues that this is not sufficient, citing cases stating that "consolidation does not merge [multiple] suits into a single cause." See, e.g.,Johnson v. Manhattan R. Co., 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331 (1933). Nevertheless, because of the consolidation and because the same judge has jurisdiction over the present action and Gates, the problems addressed by the Gillespie court are not present here.

MDOC points out that the Gates class counsel and class representative are not being utilized. But MDOC does not articulate what difference that makes, and we find it to be of no import. In fact, this court has already recognized that it may be proper for different counsel to represent a Gates subclass. See Gates v. Cook, 234 F.3d 221, 227-30 (5th Cir.2000) (reversing the district court's denial of a motion for substitution of counsel by a Gates subclass comprised of HIV-positive prisoners in the Mississippi prison system). Because this case was dealt with by the same court and judge who dealt with Gates and was consolidated with Gates, the concerns behind Gillespie are not present here and there is thus not any reason to dismiss this case.

Should this case have been dismissed because of the class members' alleged failure to exhaust administrative remedies?

MDOC argues that the judgment should be vacated and the case dismissed because the trial court did not require all of the inmates who are members of the present class to exhaust their administrative remedies. The plaintiffs respond that the named plaintiff, Russell, did exhaust his administrative remedies, and that no more is required. MDOC disputes the plaintiffs' contention that Russell exhausted his administrative remedies.
The Prison Litigation Reform Act ("PLRA") mandates that "[n]o action shall be brought with respect to prison conditions... by a prisoner ... until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Court made clear that exhaustion is now mandatory. Id. at 524, 122 S.Ct. 983. This court has held that the available administrative remedy must be pursued to its conclusion. 330 Wright v. Hollingsworth, 260 F.3d 357 (5th Cir.2001). Thus, if the plaintiffs did not exhaust administrative *330 remedies, this suit should be dismissed.
The trial court found that Russell was the only class member who had completed the MDOC Administrative Remedy Program ("ARP"). If true, this is enough to satisfy the requirement for the class. See, e.g., Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99 (5th Cir.1968) (exhaustion of remedies requirement satisfied for class action if named plaintiff representing class exhausted remedies); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1776 (2d ed. 1986) ("[W]hen prospective relief is the primary remedy being sought, a representative who has exhausted his administrative remedies may bring a class suit on behalf of those who have not done so."). Thus, if Russell completed the ARP, exhausting administrative remedies, this case was ripe for adjudication. Again, the trial court found that Russell had completed the ARP and

that the record adequately reflected Russell's and his counsel's steps taken through the administrative remedy process. MDOC disagrees.
MDOC maintains that the ARP is a three-step process: 1) the inmate writes a letter[3] to the Superintendent/ Deputy Commissioner in care of the Legal Claims Adjudicator that is referred to a respondent by the Legal Claims Adjudicator; 2) if dissatisfied, the inmate may request relief from the Superintendent/Deputy Commissioner; 3) if dissatisfied, the inmate may appeal to the Commissioner in care of the ARP Administrator. The Commissioner will notify the inmate of his final decision within forty days of receiving the appeal. If a request is rejected for technical reasons or matters of form, the inmate is given five days from the date of rejection to file a corrected grievance. The ARP also provides that "[n]o more than ninety (90) days from initiation to completion of the process shall elapse, unless an extension has been granted" and that "expiration of response time limits without receipt of a written response shall entitle the offender to move on to the next step in the process."[4]
The ARP rules also provide that an inmate may make a request for emergency review by sending an emergency request to the Legal Adjudicator "to determine to what level the grievance must be forwarded if substantive actions must occur. The request shall be handled as expeditiously as possible, and shall be reviewed at the Commissioner's level by the Commissioner or his designee." The emergency review procedures further provide that, if the grievance is ruled not to be an emergency, it "may be resubmitted as a regular grievance" and that "[a]buse of the emergency review process ... shall be treated as a frivolous or malicious request." The emergency review procedure thus expedites the review process in certain situations so that the request can be dealt with 331 expediently at the Commissioner's level.[5] The ARP *331 does not provide a definitive end for the emergency review procedure, but, as the emergency review procedure facilitates quicker review at the Commissioner's level, it follows that the requirement that the Commissioner provide a written answer within forty days of receiving the complaint likewise applies to the emergency review procedure.
Russell maintains that he exhausted his administrative remedies by utilizing the emergency review process. On January 31, 2002, Russell's counsel delivered to MDOC Commissioner Johnson a document titled "Emergency Request by Inmate Willie C. Russell for an Administrative Remedy Concerning Conditions on Death Row," complaining of the conditions at issue here and requesting a meeting to discuss these problems in an effort to avoid litigation.[6] On March 8, before a March 12 meeting with Commissioner Johnson, Russell's counsel sent the Commissioner a memorandum, outlining the complained of conditions on Death Row in greater detail.
On April 1, Russell's counsel sent a third letter to Commissioner Johnson referencing the original emergency request for an administrative remedy. This letter noted that Commissioner Johnson had agreed to remedy such conditions, if they existed, at the March 12 meeting. It further asked MDOC to respond by May 1 so as to inform Russell whether it would be able to make the necessary repairs by June 1. On April 15, Johnson sent a letter to Russell's counsel asserting that Russell's concerns regarding ventilation (heat) had been addressed by simply drilling some holes in the metal sheet on his cell door and that the concerns regarding sanitation and pest control were unwarranted. On June 14, Russell's counsel sent Johnson a final letter reiterating Russell's complaints and disputing Johnson's April 15th denial of the accuracy of the inmates' claims; Commissioner Johnson never responded. Throughout these negotiations, MDOC never rejected the emergency request on technical grounds 332 or for matters of form nor advised Russell to resubmit it as a *332 regular grievance. On the contrary, MDOC addressed Russell's core concerns by simply disagreeing with Russell's characterization of the conditions on Death Row.
We agree with the trial court that Russell concluded the ARP and thus exhausted administrative remedies. Initially, MDOC failed to comply with ARP procedures by failing to deal with Russell's complaint within the time limits provided by the ARP. Over ninety days expired between the time that Russell initiated the process and the time he finally filed suit, and Commissioner Johnson did not provide a written response to Russell's complaint within the forty day period. Available administrative remedies are exhausted in compliance with the PLRA when the time limits for the prison's response set forth in the prison grievance procedures have expired. Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir.1998). Similarly, per the terms of the ARP, Commissioner Johnson's failure to provide a written response to Russell's complaint within the forty day period entitled Russell to "move on to the next step in the process." As review at the Commissioner's level constitutes the final step in the process, Russell

was then entitled to file suit. Finally, even if MDOC was allowed to unduly delay the administrative process in violation of the terms of the ARP by failing to provide an answer from Commissioner Johnson within the forty day period, the April 15th letter denied that relief was warranted, effecting a rejection of the claim. That letter thus terminated the administrative process, as evidenced by Commissioner Johnson's refusal to respond to any further communications regarding these complaints. We agree with trial court's conclusion that Russell completed the ARP by utilizing the procedure for emergency review. Thus, Russell, and by extension the plaintiffs, properly exhausted administrative remedies.
Should the injunctions be vacated on the grounds that they are not justified by conditions constituting cruel and unusual punishment in violation of the Eighth Amendment?
The Eighth Amendment Standard
MDOC argues that none of the provisions of the injunctive decree were warranted by conditions constituting Eighth Amendment violations. The Eighth Amendment dictates that cruel and unusual punishment shall not be inflicted, U.S. Const. amend. VIII, and it is applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 675, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).
The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Prison officials must provide humane conditions of confinement; they must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measure to ensure the safety of the inmates. Id. This circuit has worded the test as requiring extreme deprivation of any "minimal civilized measure of life's necessities." Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir.1998). Further, mental health needs are no less serious than physical needs. Partridge v. Two Unknown Police Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th Cir.1986). The Supreme Court has 333 made clear that the standards against which a *333 court measures prison conditions are "the evolving standards of decency that mark the progress of a maturing society" and not the standards in effect during the time of the drafting of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotation omitted).
A prison official has violated the Eighth Amendment when he 1) shows a subjective deliberate indifference to 2) conditions posing a substantial risk of serious harm to the inmate. Farmer, 511 U.S. at 833-34, 114 S.Ct. 1970. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Id. at 842, 114 S.Ct. 1970.
Conditions of confinement may establish an Eighth Amendment violation "in combination" when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise 0907 for example, a low cell temperature at night combined with a failure to issue blankets. Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The Supreme Court has noted that "the length of confinement cannot be ignored.... A filthy, overcrowded cell... might be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). It is also important to note that the inmate need not show that death or serious illness has occurred. Helling, 509 U.S. at 32, 113 S.Ct. 2475 ("It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.").
Standard of Review
MDOC argues that many of the trial court's findings of fact were clearly erroneous. In reviewing the factual findings, this court employs a "clearly erroneous" standard. Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th

Cir.1986). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. Whether the official showed a deliberate indifference to the condition is a factual finding that is reviewed under a "clearly erroneous" standard. Brice v. Virginia Beach Correctional Ctr., 58 F.3d 101, 105 (4th Cir.1995). Once the facts are established, the issue of whether the facts constitute a constitutional violation is a question of law to be reviewed de novo. Alberti, 790 F.2d at 1224. If a constitutional violation is found, we employ an abuse of discretion standard in reviewing the equitable remedy itself. Swann v. Charlotte 0907 Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).
The Trial Court's Factual Findings
The trial court made the following findings of fact, inter alia, as to the conditions on Parchman's Death Row.
Sanitation
Inmates have been subjected to cells that were extremely filthy with chipped, peeling paint, dried fecal matter and food encrusted on the walls, ceilings, and bars, as well as water from flooded toilets and rain leaks. Inmates are routinely moved from cell to cell and are forced to clean their new cells that may have been left in horrendous 334 sanitation by the prior occupants, *334 especially if the occupant were mentally ill. Adequate cleaning supplies and equipment are not routinely made available for inmates to clean their cells. These filthy conditions contribute to the infestation of pests and play a role in the mental well-being of inmates. Russell v. Johnson, 2003 WL 22208029 at *2, 2003 U.S. Dist. LEXIS 8576 at *4-5 (N.D.Miss.2003).
Heating and Cooling
The summer temperatures in the Mississippi Delta average in the nineties with high humidity, and Death Row is primarily not an air-conditioned facility. There are industrial type fans in the hallways to help with air circulation, and most inmates have smaller fans. Relief from the heat can be obtained by keeping the windows open in the cell using fans. But keeping the windows open increases the mosquito population in the cells since there are holes in the cell window screens and the screen gauge is not sufficient to keep mosquitoes out. The ambient temperature in the cells is within reasonable limits except during the summer months. The ventilation is inadequate to afford prisoners a minimal level of comfort during the summer months. The probability of heatrelated illness is extreme on Death Row, and is dramatically more so for mentally ill inmates who often do not take appropriate behavioral steps to deal with the heat. Also, the medications often given to deal with various medical problems interfere with the body's ability to maintain a normal temperature. The inmates are not afforded extra showers, ice water, or fans if they don't have fans when the heat index is 90 or above. The heat problem extends to all of Death Row and possibly throughout Parchman. Id. at *3, 2003 U.S. Dist. LEXIS 8576 at *5-7.
Pest Control
The heat problem also exacerbates the problem of pest control. Mosquitoes in Mississippi, and the Delta in particular, are a problem that cannot be eliminated. But the problem must be addressed and the impact lessened, especially with the incidence of West Nile virus, a mosquito-born disease increasing in Mississippi. Inadequate screening on the cell windows causes the inmates to choose between suffering from the heat or increasing the mosquitoes in their cells. The problems of heat and mosquitoes must be addressed to provide the inmates with conditions that would meet minimal constitutional standards. The problem of roaches and other vermin will be met by adhering to the ACA standards and by meeting the sanitation goals the court will set. Id. at *3, 2003 U.S. Dist. LEXIS 8576 at *7.

"Ping-Pong" Toilets and Plumbing
Fecal and other matter flushed by a toilet in one cell will bubble up in the adjoining cell unless the toilets are flushed simultaneously. This has been a problem since the unit opened. Parchman officials have identified the problem as one of calibration, especially if the water is shut off. The toilets must be recalibrated to work properly. Recalibration has helped, but not eliminated, the problem of ping-pong toilets. No one in civilized society should be forced to live under conditions that force exposure to another person's bodily wastes. The showers, water temperature, and quality of water are adequate. Id. at *3, 2003 U.S. Dist. LEXIS 8576 at *7-8.
Lighting
335 The lighting in the cells is grossly inadequate. While 20 foot-candles[7] is the appropriate *335 level of lighting for the cells, the maximum foot-candles measured by Russell's expert was seven or eight, with the typical cell being in the 2-4 foot-candle range. Id. at *3, 2003 U.S. Dist. LEXIS 8576 at *9-10.
Preventive Maintenance Program
The preventive maintenance program instituted by MDOC appears to be adequate, although it should be in writing. Id. at *3, 2003 U.S. Dist. LEXIS 8576 at *10.
Laundry
The inmates' laundry is returned foul-smelling, necessitating the inmates to wash their clothes in their cells. The inmates are entitled to laundry that is clean and not foul-smelling. Id.
Mental Health Issues
At least six severely psychotic prisoners are housed on Death Row, and many more are diagnosed with quantifiable mental health problems. The extremely psychotic prisoners scream at night, throw feces, and generally make life miserable for the other inmates and guards. As stated by Dr. Kupers, a psychiatry professor and expert for Russell, "it boils down to warehousing people with severe mental illness ... some are medicated, but there is essentially no other mental health services." The mental health care afforded the inmates on Death Row is grossly inadequate. The isolation of Death Row, along with the inmates' pending sentences of death and the conditions on Death Row are enough to weaken even the strongest individual. What mental health services are provided generally take place at the inmate's cell within hearing of other inmates and guards. This results in the failure of inmates to tell the mental health specialists anything of substance. Moreover, comprehensive mental health evaluations are consistently inadequate. Inmates are also prescribed psychotropic drugs with only sporadic monitoring. This can result in life-threatening situations due to the toxicity of these drugs. Appropriate treatment of mentally ill inmates will in turn help address the issues of excessive noise and sanitation problems caused by severely psychotic inmates. Id. at at *4, 2003 U.S. Dist. LEXIS 8576 at *11-12.
Exercise
Proper exercise is advantageous for mental health and well-being. The exercise facilities provided are adequate. While, in general, the use of "flip-flops" is understandable as a security measure, such shoes do not allow effective exercise. The inmates should be given access to sneakers prior to entering the exercise pen and should be given access to water and shade while exercising. Id. at at *4, 2003 U.S. Dist. LEXIS 8576 at *12.

The Trial Court's Conclusions of Law

The court concluded that the conditions identified in the court's findings of fact constituted Eighth Amendment violations because they posed a substantial risk of harm to the inmates' health and, based on the obvious nature of these risks, the prison officials showed a deliberate indifference to such harm.

Injunctive Relief Entered by the Trial Court

The court directed the following remedial actions.

1. If defendants wish to continue the practice of moving inmates from cell to cell in Unit 32-C, they will insure that the cell to which an inmate is moved is clean prior to the move. While an inmate should be required to keep his own cell clean, he should not be required to clean the cell of another inmate in order to inhabit it.

336

2. Adequate cleaning supplies and equipment shall be provided inmates in *336 order that they

may clean their cells at least weekly.

3. A general preventive maintenance schedule and program shall be reduced to writing within 60 days of this order.

4. Defendants shall take the necessary measurements in the unit in order to determine the heat index on the individual tiers. These measurements shall be taken daily at 10:00 a.m., 1:00 p.m., 4:00 p.m., and 7:00 p.m. during the months of May through September and at 1:00 p.m. in all other months. If the heat index reaches 90 degrees or above, the defendants will insure that each cell is equipped with a fan, that ice water is available to each inmate, and that each inmate may take one shower during each day when the heat index is 90 degrees or above. As an alternative, the defendants may provide fans, ice water, and daily showers during the months of May through September. This remedy shall apply to all of Unit 32.

5. The defendants shall continue their efforts at mosquito eradication and pest control. The defendants shall also insure that all cell windows are repaired and screened with 18 gauge window screen or better. This remedy shall apply to all of Unit 32.

6. The defendants shall insure that the problem of "ping-pong" toilets in Unit 32 as a whole is addressed. The defendants shall provide to the court within 60 days the details of a plan to eradicate this problem. The court is not convinced that recalibration is sufficient, but will await the defendants' report on their plan.

7. The defendants shall also upgrade the lighting in Unit 32 as a whole to provide lighting in each cell equal to 20 foot-candles.

8. The defendants shall insure that the proper chemical agents are used at the laundry so that inmates' laundry is returned clean and without a foul smell.

9. The defendants shall insure that the new vendor for medical services complies with the ACA and the National Commission on Correctional Healthcare medical and mental health standards. Each inmate on Death Row shall be given a comprehensive mental health examination in private. These comprehensive examinations shall be conducted on a yearly basis. Those inmates diagnosed with psychosis and severe mental health illnesses shall be housed separately and apart from all other inmates. The medication levels of all inmates receiving psycotropic medications shall be monitored and assessed in accordance with appropriate medical standards. All inmates receiving mental health counseling or evaluation shall meet with the mental health professionals in a private setting.

10. The inmates on Unit 32-C shall continue to receive the opportunity to exercise as currently available. However, the inmates shall be given the opportunity to wear sneakers while exercising if they prefer rather than "flip-flops." A shaded area for exercise shall be provided with access to water.
Russell v. Johnson, 2003 WL 22208029 at *1-3, 2003 U.S. Dist. LEXIS 8573 at *1-4 (N.D.Miss.2003).[8]
337 *337 Is the injunctive relief entered by the trial court justified by conditions in violation of the Eighth Amendment's prohibition against cruel and unusual punishment?
MDOC asserts that, as to several of the injunctions (Injunctions # 2, # 5, # 6, # 7, and # 9), it is already meeting, intending to meet, or attempting to meet the standards enunciated by the trial court. Thus, MDOC argues, the injunctions are not required. But MDOC's assertions that it intends to meet these standards do not suffice to moot the issue. It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citations omitted). If it did, the courts would be compelled to leave "the defendant... free to return to his old ways." Id. In accordance with this principle, the standard for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. The "heavy burden of persuading" the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. Id. The trial court's citation to Friends of the Earth accompanied by its assertion that Russell's claims were not moot indicates that the trial court was not persuaded. The fact that many of these conditions have persisted for years despite MDOC's purported efforts leads us to likewise conclude that MDOC has not met the heavy burden of showing that its voluntary conduct has mooted any of the issues presented here.
Similarly, MDOC also argues, as to several of the injunctions, that Parchman's accreditation by the American Correctional Association ("ACA") is proof that the conditions in question don't violate the Eighth Amendment. But it is absurd to suggest that the federal courts should subvert their judgment as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards. Additionally, the ACA's limited inspections are not be binding as factual findings on the magistrate or on this court. While compliance with ACA standards may be a relevant consideration, it is not per se evidence of constitutionality. See Ruiz v. Johnson, 37 F.Supp.2d 855 924-25 (S.D.Tex.1999) (recognizing the limitations of ACA accreditation and noting situations where it has not equated to constitutionality), rev'd on other grounds, 178 F.3d 385.
MDOC finally argues that none of the injunctions are based on Eighth Amendment violations and, thus, that all of the injunctions must be reversed. Using the relevant Eighth Amendment standard, we will examine each of the injunctions in turn.
Injunctions # 1 and # 2
338 MDOC argues that the first injunction, which prohibits MDOC from requiring inmates to clean the cells into *338 which they are transferred, cannot stand because there was no proof of any medical injury or illness resulting from this practice. MDOC similarly maintains that the second injunction, which requires that adequate cleaning supplies be provided to the inmates at least weekly, is unsupported by any evidence of medical illness arising from this situation or a showing of deliberate indifference by MDOC officials. MDOC also contends that cleaning supplies are regularly issued to inmates and that the cells were clean as of the date of trial.
This court has previously held that filthy cell conditions may constitute an Eighth Amendment violation. See Harper v. Showers, 174 F.3d 716, 720 (5th Cir.1999). Other circuits have made similar holdings; the Eighth Circuit has held that a prisoner being placed in a cell covered with filth and human waste for a two-year period without proper cleaning supplies constitutes cruel and unusual punishment. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989) (recognizing that "inmates are entitled to reasonably adequate sanitation, personal hygiene, and

laundry privileges, particularly over a lengthy course of time"); see also McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir.2001) (holding that three days in a feces-covered cell states a claim upon which relief could be granted).
Russell points to testimony adduced at the trial court indicating that the cells were "extremely filthy" with crusted fecal matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on the walls. Living in such conditions would present a substantial risk of serious harm to the inmates, and we cannot say that trial court's decision to credit this testimony was clearly erroneous. Also, in light of substantial testimony indicating that such conditions were not atypical and were easily observed, we cannot say that the trial court's conclusion that MDOC officials showed a deliberate indifference to this risk is clearly erroneous. Further, the testimony was conflicting as to the frequency and quality of the provision of cleaning supplies, and we cannot say that the trial court's conclusion to credit testimony supporting the inadequacy of cleaning supplies was clearly erroneous. As living in such filthy conditions would present the inmates with a risk of serious harm to which MDOC officials have displayed a deliberate indifference, Injunctions # 1 and # 2 were justified by an Eighth Amendment violation. They are, therefore, affirmed.
Injunction # 3
MDOC challenges the third injunction, which directs MDOC to reduce a general preventive maintenance schedule and program to writing. MDOC argues that there is no evidence supporting the elements required for a finding of cruel and unusual punishment that would support this injunction. Russell responds that "[t]he risks of squalid conditions and the constantly recurring break-down of the water, plumbing, and other operating systems were obvious," and Russell's environmental health and safety expert testified that the same problems would continue to recur if MDOC did not put a written plan in place.
While federal courts can certainly enter injunctions to prevent Eighth Amendment violations, they are not to micromanage state prisons. Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The trial court entered injunctions to directly remedy each of the complained-of conditions that rise to the level of an Eighth Amendment violation. Russell has cited no case that supports the proposition that the trial court can 339 further affect the internal operations of MDOC by requiring it to produce a writing preventive maintenance *339 program to which it will adhere. The additional requirement of a written preventive maintenance program, while desirable, is not independently supported by additional conditions that constitute an Eighth Amendment violation, and it cannot stand. Thus, we vacate that injunction.
Injunction # 4
The fourth injunction directs MDOC to provide fans, ice water, and daily showers when the heat index is 90 degrees or above, or alternatively to make such provisions during the months of May through September. The injunction also purports to apply to all of Unit 32, as opposed to only Unit 32-C. Initially, it is important to note that the class represented by Russell consists entirely of Parchman's Death Row prisoners, who are housed in Unit 32-C. Thus, to the extent that the injunction purports to apply to parts of Unit 32 beyond Unit 32-C, it exceeds the scope of the litigation and is therefore invalid. See Thomas v. County of Los Angeles, 978 F.2d 504, 509-10 (9th Cir.1992) (reversing an injunction as overbroad when it purported to apply to the entire Los Angeles County Sheriff's Department although the plaintiff's complaint and evidence only applied to one specific station).
MDOC contends that no Unit 32-C inmate has ever suffered any serious heat-related illness. But, as noted above, Russell does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm to which MDOC officials have shown a deliberate indifference. Russell presented the court with expert testimony from Dr. Vassallo[9] that it was "very likely" that, under current conditions on Death Row, an inmate will die of heat stroke or some other heat-related illness. In fact, Dr. Vassallo's testimony indicated that Death Row prisoners had made many complaints of symptoms commonly recognized to be related to heat-related illness and that those conditions had simply gone undiagnosed.

MDOC further cites language from Woods v. Edwards, 51 F.3d 577 (5th Cir.1995), in which Woods, a prisoner at the Louisiana State Penitentiary at Angola, claimed, inter alia, that the conditions in extended lockdown were unconstitutional. Extended lockdown isolates inmates as punishment for disciplinary violations. One of Woods' claims was that the cell used in his extended lockdown was inadequately cooled and that the high temperature aggravated his sinus condition. Id. at 581. This court noted that Woods "failed to present medical evidence of any significance." Id. This court went on to state: "[w]hile the temperature in extended lockdown may be uncomfortable, that alone cannot support a finding that the plaintiff was subjected to cruel and unusual punishment in violation of the Eighth Amendment." Id. The Woods court found that Woods had not presented medical evidence sufficient to state an Eighth Amendment violation; Woods does not stand for the proposition that extreme heat can never constitute cruel and unusual punishment. Finally, MDOC points out that the Seventh Circuit has held that one shower a week is sufficient. Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th 340 Cir.1988). *340 But Davenport is inapt, as it dealt only with cleanliness while the testimony upon which this injunction rests indicated that cold showers would help alleviate the risk of heat-related illness.
Based on the evidence presented, we cannot say that the trial court's finding that the probability of heat-related illness is extreme at Unit 32-C was clearly erroneous. Thus, this condition presents a substantial risk of serious harm to the inmates. Again, based on the open and obvious nature of these conditions and the evidence that inmates had complained of symptoms of heat-related illness, the trial court's finding regarding MDOC's deliberate indifference is not clearly erroneous. Thus, Injunction # 4 was justified by an Eighth Amendment violation, and it is affirmed insofar as it applies to Unit 32-C.[10]
Injunction # 5
The fifth injunction requires MDOC to continue its efforts at pest control and, more specifically, to ensure that all cell windows are repaired and screened with 18 gauge window screen or better. Injunction # 5 purports to apply to all of Unit 32. Initially, like Injunction # 4, to the extent that Injunction # 5 purports to apply to parts of Unit 32 beyond Unit 32-C, it is invalid.
MDOC first argues that there is no basis for a federal court to order MDOC to continue to do what it is already doing. But, as discussed above, the pest infestation problems persist, and MDOC has not met the burden of convincing the trial court or this court that its efforts at pest control have mooted this issue. MDOC also argues that the evidence shows that there were no holes in the screens at the time of trial. But the trial court was presented with testimony that there were cells with holes in the screens, and, in any event, the insufficient gauge on the screens would allow the infestation problem to continue even in absence of holes in the screens.
MDOC argues generally that Russell did not show either a substantial risk of harm to the inmates or deliberate indifference on the part of MDOC officials. But the trial court was presented with testimony that insects swarm in the inmates' food and beds and that the inmates often must choose between opening the window for relief from the heat or closing the window for protection from mosquitoes, as the gauge on the screens is too large to keep out the mosquitoes. It is important to recognize that this injunction is supported by the trial court's findings on heat, as the court noted that the mosquito infestation accompanied by the insufficient screen gauge exacerbated the heat problems by deterring the inmates from opening their windows to increase circulation. In addition to the risk of heat-related illness, the pest infestation problems were linked to chronic sleep deprivation, which exacerbates the symptoms of mental illness. As Injunction # 5, like Injunction # 4, is supported by the constitutional violation stemming from the excessive heat, it is affirmed as to Unit 32-C.
Injunction # 6
341 The sixth injunction requires MDOC to remedy the problem of "ping-pong" *341 toilets. Like Injunctions # 4 and # 5, this injunction is invalid to the extent it purports to apply to parts of Unit 32 outside of Unit 32-C.
MDOC argues that there is no evidence of any serious medical problem stemming from the ping-pong toilets and, further, that in absence of objective evidence of such a problem there can be no finding of deliberate indifference

on the part of MDOC officials. MDOC cites Tokar v. Armontrout, 97 F.3d 1078 (8th Cir.1996), for the proposition that exposure to raw sewage is not cruel and unusual punishment where there has been no demonstration of an adverse medical reaction. But MDOC seriously misconstrues Tokar. Tokar complained generally that the prison toilets were "filthy" without specifying how long the toilets remained filthy and while acknowledging that he had not asked for cleaning supplies because cleaning the toilets was the job of other inmates. Id. at 1081. The facts of Tokar are quite different from the facts presented here, in which inmates have regularly been exposed to each others' feces for over a decade. In fact, the Eighth Circuit's recognitions that exposure to waste may constitute cruel and unusual punishment and that the length of time a prisoner must endure unsanitary conditions is undoubtedly a factor in the constitutional calculus, id. at 1082 n. 4, both weigh in Russell's favor. While evidence of a past medical injury would clearly strengthen Russell's case, Russell does not have to prove a past medical injury. He must prove a substantial risk of serious harm and MDOC officials' deliberate indifference to that harm.
Russell points to expert testimony stating that the situation presented when the feces of one inmate bubbles up in the neighboring cell, exacerbated when the toilets overflow, does constitute a serious health hazard. Russell also presented evidence to the trial court that the Mississippi State Department of Health warned MDOC every year for the past eleven years that the malfunctioning toilets in Unit 32-C are a critical public health problem requiring immediate attention. Additionally, Russell points to several circuit court cases indicating that "courts have been especially cautious about condoning conditions involving exposure to human waste." Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir.1990); see also, e.g., DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.2001)(exposure to human waste "evokes both the health concerns emphasized in Farmer and the more general standards of dignity embodied in the Eighth Amendment").
MDOC also asserts that there was substantial testimony regarding its attempts to correct the toilet problem, presumably arguing that this further rebuts a finding of deliberate indifference. As evidence of deliberate indifference, Russell points to the fact that the problems persist despite MDOC officials having been warned that the problem was urgent for more than a decade. Frequent exposure to the waste of other persons can certainly present health hazards that constitute a serious risk of substantial harm. Given the evidence presented to the trial court, we cannot say that the court's factual findings regarding the ping-pong toilets or the MDOC officials' deliberate indifference were clearly erroneous. Thus, this injunction, as applied to Unit 32-C, is affirmed.
Injunction # 7
This injunction requires MDOC to upgrade the lighting in each cell to the level of twenty foot-candles. This injunction also purports to apply to Unit 32 as a whole and is invalid insofar as it purports to apply beyond Unit 342 32-C. MDOC argues that the injunction is wholly invalid because MDOC officials were in the process *342 of upgrading cell lighting. As with the sanitation issues, the pest control issues, and the ping-pong toilets, MDOC's assertions that it is working on the problem are inadequate to moot the issue. MDOC also argues that there was no evidence of a substantial risk of serious harm stemming from the admittedly inadequate lighting or of MDOC officials' deliberate indifference to such harm. But the trial court judge apparently credited expert testimony asserting that the lighting in the cells was grossly inadequate for the purposes of sanitation, personal hygiene, and reading, that this condition also contributes to further mental health deterioration, and that twenty footcandles was the appropriate minimum level at which these activities could take place. Thus, this injunction is supported by the conditions supporting Injunctions # 1, # 2, and # 9, discussed below, and it is affirmed.
Injunction # 8
The eighth injunction requires MDOC to return the inmates' laundry clean and without a foul smell. MDOC argues that the prison laundry condition is not sufficiently serious to implicate the Eighth Amendment, citing Green v. Ferrell, 801 F.2d 765, 771 (5th Cir.1986), and similarly that there was no proof of any serious medical harm to any inmate stemming from this condition. The Green court reiterated that "jails must provide `reasonably adequate' sanitation" but overturned the district court's injunction requiring the jail to provide laundry services because the prisoners were provided with laundry detergent that they could use to wash their own clothes in the sink located in their cells. Id.

Russell points to testimonial evidence that, unlike the situation in Green, the Death Row inmates are not provided with detergent and in fact can be disciplined for doing their own laundry. First, the trial court found that the inmates do in fact wash their own clothes, as conceded by one of MDOC's witnesses, who testified that the inmates wash their own clothes because it is part of "prison culture." This finding was supported by substantial evidence and is incongruous with the proposition that inmates are disciplined for washing their own clothes. Given that the inmates do wash their own clothes, the only distinction between this case and Green is that the prisoners in Green were provided with laundry detergent while the Death Row inmates in this case wash their clothes with the bar soap. The difference between laundry detergent and bar soap is not sufficient to distinguish this case from Green and thus does not implicate the Eighth Amendment. Injunction # 8 is therefore vacated.
Injunction # 9
The ninth injunction outlines a number of requirements designed to alleviate some of the problems stemming from the allegedly inadequate mental health care afforded the inmates on Death Row. This injunction requires MDOC to comply with ACA and National Commission on Correctional Healthcare ("NCCH") standards regarding mental health, to give each inmate private, comprehensive mental health examinations on a yearly basis, to monitor and assess the medication levels of inmates receiving psychotropic medications, and to house the inmates with psychosis and severe mental illnesses separately from the other inmates.
MDOC argues that it was already in compliance with ACA standards and, somewhat contradictorily, that MDOC has already begun the process of selecting a new medical vendor that would comply with ACA and NCCH 343 standards. Once again, MDOC's assertion that it was already on the path towards compliance is *343 insufficient to moot the issue. Further, the injunction does not require only ACA compliance. In any event, MDOC's assertion that it is already in compliance with ACA and NCCH standards is incongruous with the trial court's findings, including the statement that "the mental health care afforded the inmates on Death Row is grossly inadequate." These findings were based on substantial testimony adduced at trial and apparently credited by the trial court. For example, Russell produced evidence that the isolation and idleness of Death Row combined with the squalor, poor hygiene, temperature, and noise of extremely psychotic prisoners create an environment "toxic" to the prisoners' mental health. There was also evidence that the severely psychotic prisoners smear garbage and excrement in their cells, scream all night, and flood the tiers. This contributes to the problems of uncleanliness and sleep deprivation, and by extension mental health problems, for the other inmates. There was also testimony that prisoners seldom see medical staff and that monitoring of medication was sporadic, with prisoners potentially being prescribed the wrong medication or no medication for long periods of time, potentially leading to extremely dangerous physical side effects or psychotic breakdowns.
MDOC also points out that two inmates have refused psychiatric medication so as to remain incompetent for execution. But this does not refute the trial court's findings that the mental health care afforded to inmates on Death Row is grossly inadequate. MDOC is only obligated to make adequate mental health care available for all Death Row inmates. The fact that some inmates may refuse to take advantage of such treatment so as to avoid execution is irrelevant to whether MDOC is meeting its obligation of complying with constitutional standards.
MDOC further argues that there was no demonstration of deliberate indifference to any serious mental or medical problem stemming from insufficient mental health care. In analyzing this argument, it is important to remember that mental health needs are no less serious than physical needs. Partridge v. Two Unknown Police Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th Cir.1986). This court has previously held that an inmate stated a nonfrivolous claim in complaining that he was placed in cells next to psychiatric patients who scream, beat on metal toilets, short out the power, flood the cells, throw feces, and light fires, resulting in his loss of sleep for days at a time. Harper v. Showers, 174 F.3d 716, 720 (5th Cir.1999). The trial court's findings indicate that the inmates are subjected to substantial risk of serious harm based on the mental health conditions on Death Row, and, based on the evidence presented to the trial court, we cannot conclude that the court's credibility determinations and factual findings are clearly erroneous. We agree that the conditions of inadequate mental health care, as found by the trial court, do present a risk of serious harm to the inmates mental and physical health. Again, the obvious and pervasive nature of these conditions supports the trial court's conclusion that MDOC officials

displayed a deliberate indifference to these conditions. Thus, this injunction was justified by an Eighth Amendment violation and is affirmed.
Injunction # 10
The tenth injunction requires MDOC to allow the inmates to wear sneakers instead of flip-flops while exercising and to provide the inmates with a shaded area for exercise and access to water. MDOC argues that this is 344 impermissible micromanagement of state prison operations *344 and that no evidence was presented establishing a constitutional violation. The evidence shows that inmates are allowed an hour of exercise four or five days a week. The evidence also shows that shoes and boots were replaced with flip flops because the inmates used the boots and shoes to kick other inmates and to throw at MDOC staff, and because the flip flops make escape more difficult. In fact, the trial court stated that it understood "the use of `flip-flops' as general footwear as a security measure."
Russell argues that the flip-flops make it difficult or impossible to exercise vigorously. But there is no support for the proposition that exercising in flip-flops constitutes cruel and unusual punishment. Nor is there any support for the proposition that an hour of outdoor exercise without water or shade constitutes cruel and unusual punishment. While exercise is certainly beneficial to physical and mental health, we find that the provisions for exercise made by MDOC are appropriate and that the tenth injunction is not justified by conditions in violation of the Eighth Amendment. Thus, the tenth injunction is vacated.
CONCLUSION
Injunctions # 3, 8, and 10 are vacated in their entirety. Injunctions # 4, 5, 6, and 7 are vacated to the extent they purport to apply to portions of Unit 32 beyond Unit 32-C. The remainder of the injunctive relief is AFFIRMED.
[1] Russell filed a motion to dismiss the appeal, arguing that this court was without jurisdiction because the order from which MDOC appeals was inherently tentative. We disagree. In addition to having jurisdiction to review final decisions of district courts, 28 U.S.C. § 1291, this court has jurisdiction to review interlocutory decisions "granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1). The order from which MDOC appeals is the "Final Judgment" issued on May 21, 2003. That order imposes ten detailed injunctive requirements on MDOC. As Russell points out, the order also requires MDOC to report its "progress in meeting the remedial actions" on July 7. The requirement of a progress report does not change the fact that the May 21st order grants injunctions against Mississippi requiring immediate action. In fact, this court granted MDOC a stay of this injunctive order to relieve MDOC from the burden of compliance pending appeal. In short, the May 21st order qualifies as an order granting an injunction; thus, this court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and Russell's motion to dismiss for lack of jurisdiction is denied.
[2] As mentioned in Footnote 1, this court previously granted MDOC's motion for a stay of the injunctive relief pending appeal. On March 31, 2004, Russell filed a motion to lift that stay. Due to the filing of this opinion, the stay pending appeal is vacated and Russell's motion to lift the stay is denied as moot.
[3] The ARP rules indicate that the letter should state that it is a request for an administrative remedy and should present as many facts as possible.
[4] Although no part of the ARP rules provide for a certificate of completion, MDOC asserts that the inmate receives a certificate of completion upon finishing the ARP. Under the prior version of section 1997e, before its amendment in 1996, the administrative remedy was required to be certified. 42 U.S.C. § 1997e(a)(2)(1994) (amended 1996). The 1994 district court order certifying the ARP under the prior version of the statute required inmates to complete the procedure and to attach a certificate to that effect to their complaint.
[5] MDOC argues that the emergency request procedure only provides a mechanism for temporary relief and does not excuse an inmate from pursuing relief through the three-step ARP process. Thus, MDOC maintains that

Russell did not exhaust administrative remedies because, in addition to utilizing the emergency relief process, he did not complete the three-step process culminating in a certificate of completion.
But MDOC's contention is simply not supported by the language of the policy outlining the ARP process. The portion of that policy detailing the procedure for emergency relief requests does not indicate that the inmate must simultaneously proceed through the three-step process. In fact, it refers to the regular grievance process only as an alternative when an emergency request has been deemed to be a non-emergency. MDOC never rejected the emergency request nor advised Russell to resubmit it as a regular grievance. The policy does not indicate that the emergency request procedure is simply designed to provide stop-gap measures while the request proceeds through the normal administrative procedures. The most natural reading of the policy leads to the conclusion that the emergency request procedure simply expedites the administrative process by allowing the request to be reviewed at the Commissioner's level without having to proceed through the entire three-step process in limited circumstances.
[6] Although the form was submitted directly to Commissioner Johnson instead of being sent through the Legal Adjudicator, MDOC never rejected the request for technical reasons or for matters of form. To the contrary, as discussed below, MDOC addressed the substance of Russell's request, albeit with some delay. As MDOC ignored this technical defect but instead addressed Russell's request at the administrative level and denied it for matters of substance, it cannot now claim that Russell failed to exhaust based on this technical defect. Cf. Wendell v. Asher, 162 F.3d 887, 890 (5th Cir.1998) (stating that the exhaustion requirement imposed by the PLRA is subject to the defenses of waiver and estoppel).
[7] A foot-candle is "[a] unit of measure of the intensity of light falling on a surface, equal to one lumens per square foot and originally defined with reference to a standardized candle burning at one foot from a given surface." THE AMERICAN HERITAGE COLLEGE DICTIONARY 530 (3rd ed.1993).
[8] MDOC makes a cursory argument that the injunctions must be reversed because the trial court failed to make particularized findings required by the PLRA, 18 U.S.C. § 3626(a). There are multiple problems with this argument. The first is that MDOC never presented this argument to the trial court. This court does not generally review issues raised for the first time on appeal. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993). Additionally, MDOC citesCastillo v. Cameron County, 238 F.3d 339, 351 (5th Cir.2001), for the proposition that a court must make particularized findings, on a provision-by-provision basis, that each injunction is narrowly drawn, goes no further than necessary to correct the violation, and is the least intrusive means of correcting the violation. But MDOC's reliance on Castillo is misplaced. Castillo requires such findings to be made when the district court holds that prior injunctive relief should not be terminated, relying on section 3262(b)(3). Id. at 351-54. Section 3262(b)(3) on its face requires such written findings. Conversely, section 3262(a)(1), which applies to prospective relief and is thus applicable here, does not.
[9] Dr. Vassallo is a faculty member of the Department of Surgery and Division of Emergency Medicine at New York University School of Medicine and is a medical toxicologist at the New York Regional Poison Control Center. She has lectured extensively on thermoregulation and hyperthermia (heat illness) and has authored the "Thermoregulatory Principles" chapter of Goldfrank's Toxicologic Emergencies, a textbook on medical toxicology.
[10] In a footnote in its brief, MDOC asserts that the extra showers ordered by the trial court would cause a major prison security problem. Russell replies that no such evidence was presented at trial and, thus, that the trial court should be given the first opportunity to rule on this issue. In their reply brief, MDOC admits that such evidence was only presented to the court as part of MDOC's July 2003 progress report. But only the May 21, 2003, final order of the trial court is currently under review, not any subsequent monitoring of the trial court's injunctive relief. This issue is thus not before us.
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